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HomeMy WebLinkAboutItem C08 BOARD OF COUNTY COMMISSIONERS COUNTY of MONROE Mayor Michelle Lincoln,District 2 The Florida. Keys Mayor Pro Tem David Rice,District 4 p Craig Cates,District I James K. Scholl,District 3 Holly Merrill Raschein,District 5 Regular Meeting May 20, 2026 Agenda Item Number: C8 26-6318 BULK ITEM: Yes DEPARTMENT: Engineering Services and Roads TIME APPROXIMATE: N/A STAFF CONTACT: Tyler Jackson AGENDA ITEM WORDING: Approval of Mitigation Credit Purchase and Sale Agreement with Florida Power and Light Company to purchase wetland mitigation credits for Crane Blvd Shared Use Path in the amount of$69,000. ITEM BACKGROUND: Crane Blvd Shared Use Path engineering design and permitting are underway. As a part of the project's permitting process, wetland impacts have warranted the need for the purchase of mitigation credits to satisfy requirements from South Florida Water Management Department in the amount of$69,000. Mitigation credit purchases through Florida Power and Light Company require a mitigation credit purchase and sale agreement. Transportation Impact Fee funds will be used to purchase mitigation credits. PREVIOUS RELEVANT BOCC ACTION: 4-17-26: BOCC approved a contract with McFarland Johnson, Inc. For the engineering design and permitting phase of the Crane Blvd Shared Use Path Project in the amount of$485,373.00. 10-15-25: BOCC approved Amendment No. 1 to the engineering design and permitting contract between Monroe County and McFarland Johnson, Inc. For additional scope to include preparation of a Florida Department of transportation (FDOT) required Natural Resources Evaluation (NRE) and a Phase One Cultural Resource Assessment Survey (CRAS) for the Crane Blvd. Shared Use Path Project in the amount of$45,419.00. The Amendment was funded by District One Transportation Impact Fees. INSURANCE REQUIRED: No CONTRACT/AGREEMENT CHANGES: New Agreement STAFF RECOMMENDATION Approval as Requested DOCUMENTATION: Everglades Mitigation Bank Mitigation Credit Purchase and Sale Agreement 20260324_FPL-EMB Mitigation Credits Invoice_Crane Blvd FINANCIAL IMPACT: Effective Date: May 20, 2026 Expiration Date: No expiration Total Dollar Value of Contract: $69,000 Total Cost to County: $69,000 Current Year Portion: $69,000 Budgeted: Yes Source of Funds: District One Transportation Impact Fees CPI: N/A Indirect Costs: No Estimated Ongoing Costs Not Included in above dollar amounts: N/A Revenue Producing: NO If yes, amount: Grant: County Match: Insurance Required: NO EVERGLADES MITIGATION BANK MITIGATION CREDIT PURCHASE AND SALE AGREEMENT THIS MITIGATION CREDIT PURCHASE AND SALE AGREEMENT ("Agreement") is made on this day of , 2026,by and between Florida Power & Light Company, a Florida corporation ("FPL") and Monroe County("Purchaser"). WITNESSETH WHEREAS, FPL has obtained authorization to construct and maintain the Everglades Mitigation Bank, located in Miami-Dade County, Florida("Mitigation Bank"); and WHEREAS, FPL has obtained Mitigation Bank Permit Nos. 132622449, 132637449 and 0193232-001 from the Florida Department of Environmental Protection ("FDEP") pursuant to Chapter 62-342, Florida Administrative Code (collectively, the "FDEP Permits"); Permit Nos. 199500155 (IP-GS) and SAJ-1995-155 (IP-TKW) from the U.S. Army Corps of Engineers ("ACOE") pursuant to the Clean Water Act Section 404, 33 U.S.C. § 1344 (collectively, the "ACOE Permit"); and Permit No. CC96-303/FW95-035 from the Miami-Dade County Department of Environmental Resources Management ("DERM Permit") to construct, operate, manage, and maintain the Mitigation Bank, and to transfer credits from the Mitigation Bank ("Mitigation Credits") to satisfy the mitigation requirements of third parties; and WHEREAS, for the benefit of the Purchaser, Purchaser is in the process of obtaining the following permits (collectively, the"Purchaser's Permit")from the following agencies to impact wetlands under that agency's regulatory jurisdiction which requires the Purchaser to provide mitigation: (a)Permit Number 250108-49003 from the South Florida Water Management District ("SFWMD") (referred to hereinafter as the"Agency"); and WHEREAS, the Purchaser is in the process of obtaining Agency approval or the Agency has approved the use of Mitigation Credits from the Mitigation Bank to fulfill the mitigation requirements of Purchaser's Permit. NOW, THEREFORE, in consideration of the premises herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. Purchase Price. FPL hereby agrees to allocate to Purchaser up to a maximum of 0.46 State Saltwater Mitigation Credits in the Mitigation Bank to partially or totally fulfill the mitigation requirements of the Purchaser's Permit at a rate of $150,000 per mitigation credit with a minimum purchase price of$5,000. In consideration of the total sum of Sixty-Nine Thousand Dollars ($69,000.00) ("Purchase Price"),payable in U.S. dollars in cash or immediately available funds, subject to the terms herein. The Purchase Price shall be payable to FPL as follows: (a) Sixty-Nine Thousand Dollars ($69,000.00) simultaneously upon Purchaser's execution of this Agreement. Page 1 of 6 The Purchase Price is nonrefundable, except as provided in this Paragraph and in Paragraph 3 and 12 hereof. If the Agency determines that Purchaser needs less than 0.46 Mitigation Credits, Purchaser shall notify FPL of the number of Mitigation Credits that Purchaser requires, and the parties shall reduce the Purchase Price based on a price of One Hundred Fifty Thousand Dollars ($150,000.00)per Mitigation Credit and also agrees that in any event, the Purchase Price shall be no less than $5,000 regardless of Mitigation Credits purchased. In such event, Purchaser shall be entitled to receive a corresponding refund of the Purchase Price paid and FPL shall retain those Mitigation Credits for which Purchaser received the refund. If the Agency differs in its determination of the number of Mitigation Credits to be purchased by Purchaser, then the Purchase Price shall be governed by the individual Agency determination reflecting the highest Mitigation Credit required. 2. FPL's Obligations under this Agreement. (a) FPL shall cooperate with the Purchaser and with the Agency and other applicable regulatory agencies to facilitate and expedite the transfer of the Mitigation Credits to the Purchaser to fulfill the mitigation requirements of Purchaser's Permit. (b) Upon FPL's receipt of Purchase Price and Purchaser providing to FPL the Purchaser's Permit, FPL shall reserve the Mitigation Credits and assume the responsibility for fulfilling the mitigation requirements of Purchaser's Permit. This responsibility will be met by FPL's compliance with the terms and conditions of its FDEP Permits and ACOE Permit. Except as provided in Paragraph 3 below,FPL bears no responsibility or obligation relating to Purchaser's efforts to secure all necessary construction permits. Except as provided in Paragraph 3 below, in the event the Purchaser fails to pay the total Purchase Price timely as required in Paragraph 1(a), then FPL reserves the right, at its sole discretion,to immediately cancel the contract and retain any amounts previously paid by Purchaser to FPL under this Agreement. 3. Credit Purchase Conditioned on Agency Approval of Use of Mitigation Credits as Mitigation. Purchase of the Mitigation Credits under this Agreement is conditioned on the Purchaser obtaining the approval of each Agency for the use of the Mitigation Credits to fulfill the mitigation requirements of Purchaser's Permit. Purchaser shall provide FPL with a copy of the Purchaser's Permit within ten (10) days of Purchaser's Permit being issued by each respective Agency to enable FPL to submit the credit withdrawal request as required in Paragraph 4. If Purchaser's inability to provide FPL with a copy of Purchaser's Permit is due to Agency denial of Purchaser's Permit, then Purchaser shall be entitled to receive a refund of the Purchase Price paid and FPL shall retain all Mitigation Credits reserved on Purchaser's behalf. A "denial" shall be deemed to occur in the event the Agency's governing body with the authority to approve or deny the Purchaser's Permit has taken final agency action after Purchaser has made a good faith effort to obtain the Purchaser's Permit. Page 2 of 6 4. Withdrawal of Credits. Upon FPL's receipt of the full Purchase Price within the time required in Paragraph 1(a), and Purchaser providing to FPL the Purchaser's Permit,FPL shall submit a Mitigation Credit withdrawal request to the FDEP and/or ACOE as appropriate pursuant to the Mitigation Credit withdrawal process established in the Mitigation Bank Permits within ten (10) business days of receipt of Purchaser's Permits. After obtaining approval of the Mitigation Credit withdrawal as provided in the FDEP Permits and/or ACOE Mitigation Banking Instrument, FPL shall provide to the Purchaser copies of the Agency approvals to evidence the transfer of the Mitigation Credits from FPL to the Purchaser. 5. Acceptance of Purchase Agreement Purchaser shall execute and return this Agreement to FPL within thirty (30) days of receipt. If FPL fails to receive Purchaser's executed counterpart to this Agreement within such thirty (30) day period, then FPL, in its sole discretion, may withdraw its offer to enter into a Purchase Agreement with Purchaser. 6. Fees Any returned checks shall be subject to a$50.00 service charge. 7. Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the successors and assigns of the parties hereto. This Agreement may be assigned by Purchaser to another party, with the prior written consent of FPL, which consent shall not be unreasonably withheld or delayed. 8. Applicable Law. This Agreement shall be construed and enforced in accordance with the laws of the State of Florida. 9. Notices. All notices required or remitted by the Agreement shall be in writing and shall be sent by Certified or Registered Mail, by national overnight courier service, or hand-delivered to the address below. Notices shall be deemed delivered and given when mailed, if mailed; or upon receipt, if delivered by hand or by courier. Notices to FPL shall be sent to: Florida Power& Light Company Environmental Services JES/JB 700 Universe Blvd. Page 3 of 6 Juno Beach, FL 33408 Attn: Brian Yates Notices to Purchaser shall be sent to: Monroe County 1100 Simonton Street Key West, FL 33404 Attn: Tyler Jackson 10. No Third Party Beneficiaries. This Agreement does not confer any benefits to persons or entities whom are not either (a) parties to this Agreement, or (b) successors and permitted assigns of the parties to this Agreement. 11. Remedies. Purchaser's failure to make the payments due under this Agreement within the time periods required herein shall constitute the Purchaser's default of this Agreement. In the event of Purchaser's default hereunder and Purchaser's failure to cure such default within five (5)business days, FPL shall be entitled to terminate the Agreement and retain the Purchaser's deposits, any Purchase Price due and/or paid and all Mitigation Credits reserved or withdrawn on Purchaser's behalf as its sole remedy. If FPL defaults hereunder,Purchaser's sole remedy shall be to terminate this Agreement and obtain a refund of the Purchaser's deposits and any Purchase Price paid. The parties agree and acknowledge that FDEP and the ACOE have exclusive jurisdiction to enforce FPL's compliance with the terms and conditions of their respective permits authorizing the Mitigation Bank, and Purchaser agrees it shall not be entitled to sue FPL, and hereby covenants not to sue FPL, to enforce compliance with the terms and conditions of the FDEP Permits and ACOE Permit. 12. Disputes. In connection with any legal proceeding between FPL and Purchaser brought to enforce the terms and conditions of this Agreement,the prevailing party shall be entitled to recover from the non-prevailing party all costs, expenses and reasonable attorneys' and paralegals' fees incurred by said prevailing party in such proceedings,including all costs, expenses,and reasonable attorneys' and paralegals' fees incurred on appeal, in administrative proceedings or in any arbitration. 13. Brokers. Purchaser and FPL represent to each other that neither they nor anyone on their behalf has dealt with or consulted with any broker, agent, or other person in connection with this matter, and that no commission or finder's fee will be payable as a result of the execution of this Agreement or the consummation of the transaction contemplated hereby. In the event a broker, agent, or other person claims to have dealt with one of the parties contrary to the foregoing representation, the party with whom the broker, agent, or other person claims to have dealt or Page 4 of 6 consulted agrees to indemnify and hold the other party harmless against any such claims or demands, including reasonable attorneys' fees and costs incurred by such other party. 14. Construction. This Agreement shall not be construed more strictly against one party than the other by virtue of the fact that it was prepared by counsel for one of the parties. 15. Interpretation. In the interpretation of this Agreement, a single number includes the plural, the words "person"and"party"include corporations,partnerships, firms or associations whenever the context so requires. Captions of paragraphs and sections are for convenience and reference only, and the words contained therein shall in no way be held to explain, modify or amplify or limit the scope or content of the interpretation, construction or meaning of the provisions of this Agreement. 16. Confidentiality. The terms of this Agreement are confidential and may not be disclosed to third parties except as provided by law or with the written permission of FPL and Purchaser. 17. Waiver of Jury Trial. Purchaser and FPL agree with each other that each knowingly, voluntarily and intentionally waives the right it may have to a trial by jury in respect of any litigation based hereon, or arising out of, under or in connection with this Agreement, or any document contemplated to be executed in conjunction herewith, or any course of conduct, course of dealing, statement (whether oral or written) or action of the other party. 18. Entire Agreement. The terms and conditions of this Agreement constitute the sole and entire agreement between the parties with respect to the subject matter hereof This Agreement may be amended, modified or altered only by the written agreement of the parties. This Agreement supersedes any and all previous oral or written agreements and understandings relating to the subject matter hereof and contains the entire agreement of the parties relating to the subject matter thereof. This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which together shall constitute a single agreement. 19. Recitals. The above-mentioned recitals are true and correct and incorporated herein by reference. [Signatures appear on following page.] Page 5 of 6 In WITNESS WHEREOF, each party hereto has caused this contract to be executed by its duly authorized representative. BOARD OF COUNTY COMMISSIONERS OF Florida Power& Light Company MONROE COUNTY, FLORIDA a Florida Corporation BY: BY: Mayor/Chairman TITLE: MONROE COUNTY ATTORNEY APPROVED AS TO FORM CHRISTINE LIMBERT-BARROWS SR.ASSISTANT COUNTY ATTORNEY The foregoing instrument was subscribed and DATE,_4122126_.. sworn to (or affirmed) before me, by means of Ophysical presence or Oonline (SEAL) Attest: KEVI N MADOK, Clerk this day of 2026, by BY: Who is ( ) personally known to me As Deputy Clerk or who ( ) produced a driver's license as identification. DATE: NOTARY PUBLIC, STATE OF FLORIDA Print, type of stamp commissioned name of notary Page 6 of 6 too EVERGLADES MITIGATION BANK March 24, 2026 Monroe County Engineering Department c/o Tyler Jackson Project Manager Monroe County 1100 Simonton Street Key West, FL 33040 (305) 393-5450 id.n(A110r)-t Mr�() Re: Sale of Mitigation Credits from Florida Power & Light Company (FPL-EMB) SFWMD-ERP Application No. 250108-49003 Crane Boulevard Shared Use Path Project Monroe County, Upper Sugarloaf Key Florida Dear Mr. Jackson, This invoice is to confirm the cost for state compensatory mitigation credits to offset unavoidable impacts to wetlands under Part IV of Chapter 373, Florida Statutes, for the South Florida Water Management permit application 250108-49003. The cost for 0.46 State Saltwater Mitigation Credits to fulfill the mitigation requirements is Sixty-Nine Thousand Dollars ($69,000.00)at a rate of$150,000 per mitigation credit with a minimum purchase price of$5,000. The purchase price shall be payable in U.S. dollars in cash or immediately available funds, as stated in the Mitigation Credit Purchase and Sale Agreement. A check made out to the FPL for this amount should be mailed to the following address: Florida Power& Light Company Environmental Services JES/JB 700 Universe Blvd. Juno Beach, FL 33408 Attn: Brian Yates One the purchase is processed, we will provide a confirmation letter as proof you have satisfied your mitigation requirements. If you have any questions regarding this notification,please contact me at(561) 214-6597 or Bfigii ale Sincerely, 4 Brian Yates Environmental Project Manager