09/28/2005 AgreementClerkef111e
CircuitCOUlt
Phone: (305)295-3130
Danny L. Kolhage FAX: (305)295-3663
randum
From;
Date:
Connie Cyr, Aide to the
County Administrator
Isabel C. DeSantis, Deputy Clerk
Thursday, October 06, 2005
At the Regular BOCC Meeting held on September 28, 2005, the Board approved
the following:
Lease Agreement between Monroe County and the Florida Keys Aqueduct
Authority relating to certain lands for the construction, equipping and operation thereon of
a wastewater and sewer system.
Attached hereto is a photocopy of the subject document for your handling.
Should you have any questions concerning this matter, please feel free to contact this
office.
Copies:
County Attorney
Kirk Zuelch, FKAA General Counsel
Brian Armstrong, Bond Counsel
Finance
,] File
LEASE AGREEMENT
MONROE COUNTY, FLORIDA
as Lessor
and
FLORIDA KEYS AQUEDUCT AUTHORITY
as Lessee
Dated as of September 6, 2005
Page 1
BMO Draft #3
# 4155,00
September 21, 2005
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TABLE OF CONTENTS
~
ARTICLE I.... ..................... ................... ..,...... ........................ ............ .......................... ..................... ...................................... .........5
DEFINITIONS AND EXHIBITS... ............................ ........... ..... ... ... ........ ..................... .................................. .........5
1,1. Definitions.............. ................... .................. ................... ............ ............................ .......... .......... ......5
ARTICLE II.................... .......... .......... .,.................................. ...................... ............................ ..... ................ ........... ........................8
LEASE OF PROJECT .......,...........................................................................................................................................8
2.1. Lease of Project............... ............................... ..................... ....................... ................. ..... ........... ....8
2.2, Lease Term...... ..... ..... .... ............... ............ ................................. ..................... .................. ...... ...... ....8
2.3. Acquisition of Project ............ .............. ................................... ....... ............... .............. ........... .......8
2.4, Lessee's Liabili ty ........... .................... .......................... ....................... ........... .................... ......... ...8
2.5. Possession and Enjoyment..... ...................... ...................... ................. ....................... ........... .....9
2.6. Disclaimer of Warranties..... .............. ................. .......... ............ ............................. ............. .......9
2.7, Warranties of the Facility ..........................................................................................................9
2.8. Representations, Covenants and Warranties of the Lessee ..........................................9
2,9. Representations, Covenants and Warranties of the Lessor .........................................10
2,10. Care and Use of Project .............................................................................................................11
2,11. Mutual Waiver of Subrogation Rights ................................................................................11
2.12, W ai ver, ........... ................. ............. .............. .............................. ................... ...................... ............ .11
2.13. Quiet Enjoyment......................................................................................................................... .11
ARTICLE III ................ ............ ............. .............................. ............. .... ............... .......... ...... .................. ..... ...................... ............ ..12
LEASE PAYMENTS ...................................................................................................................................................12
3.1. Payment of Lease Payments....................................................................................................12
3.2. Lease Payments to be Unconditional...................................................................................12
3,3. Net Lease .............................. .............. ........... ................. ........... ............ ........... ...... ........... .......... ...12
ARTICLE IV....... ................. .......... ........................ .................... ............. ...... ......................... .... ............................... ................ .....13
TERMINATION ...............,..........................................................................................................................................13
4.1. Termination of Lease Term ......................................................................................................13
4.2. Effect of Termination................ ............ .................................. .................................... ............. ...13
ARTICLE v................... .........,. ............. .................................. .............. ........ ........... ...... ....................... ................................ ........ .13
COVENANTS OF LESSEE ......................................................................................................................................13
5.1. Maintenance of the Facility......................................................................................................13
5.2. Taxes, Other Governmental Charges and Utility Charges........................................... 13
5,3. Provisions Regarding Insurance and No Waiver of Sovereign Immunity .............14
5.4. Damage, Destruction or Condemnation ..............................................................................14
5,5. Insufficiency of Net Proceeds ..................................................................................................14
5,6. Federal Tax Covenants ..............................................................................................................14
5,7, Liens............................................................................................................................................... . .15
5 .8. Use of System............ ...................... ................... .............. ...................... ............................ .......... .15
ARTICLE VII .......... ................ ........... ...................... .............. ............... ............................. ..... ....... ............ .... ............. ........... .......15
TRANSFER OR ASSIGNMENT ...........................................................................................................................15
6.1. Assignment and Subletting. ....................................................................................................15
ARTICLE VII!............. .......... ......... ...................... .................. ............... ............. ............................ ....................... ............... .........15
ADDITIONAL LESSEE COVENANTS ..............................................................................................................15
7,1. No Free Service.............................................................................................................................15
7.2. Mandatory Connection.... ................... .................................. ......................... .............. .......... ...16
7.3. Additions and Modifications. .................................................................................................16
7.5. Access to Project Site and Places of District Record Retention.................................... 16
ARTICLE VIII.................. ........ ................ ................. .......... .............. ................. ...................... ...... ....................... ................... .....16
REIMBURSEMENTS.................................................................................................................................................16
8.1. Reimbursements. ........... ............. ...................................... ....................... ....... .................. ......... .16
8 .2. Advance............................ ............ ................ .... ......... ................. ..................... .................... .......... .17
8.3. Audit and Monitoring Requirments.....................................................................................17
ARTICLE IX ........ ............... ................................... ... ......... ...... .................................. .......................... ...... ..... ............ ...18
MISCELLANEOUS ....................................................................................................................................................18
9.1. Amendments .................................. ...................... ........ ....................... ........... ......................... .....18
9.2. Notices ....... ............. ..... ................................. ....... ................. ................. ................................ .........18
9.3. Binding Effect ............. ......................................................... ........ ............... ................. ..................18
9.4. Severability............... ............. ........................................................ ............................. ..................18
9.5. Execution in Counterparts .......................................................................................................19
9.6. Captions. .......... .................... .............. ............................... ..... ................... .................................... .19
9.7. Memorandum of Lease.............. ............... ................ ............. ........... ................. ........ ............ ....19
9 .8. Applicable Law.... .................... .................. ................................ .............................. ............... .....19
9.9. Non-recourse Obligation of Lessee .......................................................................................19
9.10. Conflicts... .................... ...... ................. ................................ ..................... ............... ............... ........ .19
EXHIBIT A SYSTEM SITE
EXHIBIT B DESCRIPTION OF SYSTEM
EXHIBIT C PERMITTED EXCEPTIONS
EXHIBIT D FORM OF REQUISITION
EXHIBIT E FORM OF SUPPLEMENT TO LEASE AGREEMENT
1
2
ii
1 LEASE AGREEMENT
2
3
4 This Lease Agreement (the "Lease") dated as of September 6, 2005 between Monroe County,
5 Florida, a political subdivision of the State of Florida (the "Lessor"), and Florida Keys Aqueduct
6 Authority, an independent special district (the "Lessee").
7
8 WITNESSETH
9
10 WHEREAS, the Lessor and Lessee are authorized to execute a lease agreement relating to the
11 lease of certain lands for the construction, equipping and operation thereon of a wastewater and
12 sewer system (the "System"); and
13
14 WHEREAS, the Lessor is (or will be) the owner of legal title to the System Site (more
15 particularly described in Exhibit A hereto and incorporated herein by reference, as same may be
16 supplemented and expanded from time to time as herein provided), and hereby leases the System Site
17 to the Lessee; and
18
19 WHEREAS, the Lessor and the Lessee desire to enter into this Lease Agreement to implement
20 that certain Interlocal Agreement between the Lessor and the Lessee dated as of September 6, 2005, as
21 filed with the Clerk of the Circuit Court on September ~ 2005 (the "Interlocal Agreement"); and
22
23 WHEREAS, in and by this Lease, the Lessor and Lessee agree to comply with all applicable
24 requirements of Section 103 of the Code necessary to maintain the exclusion from gross income for
25 federal income tax purposes of the interest on either the Lessor Bonds or the Lessee Bonds; and
26
27 WHEREAS, it is the express intent of the Lessor and Lessee that no obligation of the Lessor
28 with respect to the financing of any portion of the System orthe acquisition of any System Site shall
29 constitute a debt, liability or obligation of the Lessee or shall be a pledge of the revenues derived by
30 the Lessee from the operation of the System; and
31
32 WHEREAS, it is the express intent of the Lessor and Lessee that no obligation of the Lessee
33 with respect to the financing of any portion of the System shall constitute a debt, liability or
34 obligation of the Lessor or shall be a pledge of the faith and credit of the Lessor.
35
36 NOW, THEREFORE, in consideration of the premises and the covenants and conditions
37 hereinafter contained and for other good and valuable consideration, the receipt and sufficiency of
38 which are hereby acknowledged, the parties hereto agree as follows:
39
Page 4
1 ARTICLE I
2
3 DEFINITIONS AND EXHIBITS
4
5 1.1 Definitions. The terms set forth in this section shall have the meanirigs ascribed to
6 them for all purposes of the Lease unless the context clearl y indicates some other meaning.
7 "Advance" shall mean the funds provided by the Lessor from the proceeds of Lessor Bonds in
8 such amounts as are determined by Lessor and Lessee to be necessary for Lessee to properly design,
9 construct and equip each Project provided that, in all events, the amount of the Advance shall not be
10 less than FIVE MILLION DOLLARS ($5,000,000).
11 "Authorized Lessee Representative" shall mean the Chairman or Vice Chairman of the Lessee,
12 and any other person or persons designated by the Lessee by an Authorized Lessee Representative.
13 "Budget" shall mean the budget for the cost of the construction and equipping of the System,
14 as such relates to the System Costs prepared in accordance with the plans and specification developed
15 by the Lessee and its consulting engineers and as amended, from time to time.
16 "Business Day" shall mean a day other than (i) Saturday or Sunday or (ii) a day on which
17 banking institutions located in the State of Florida or agencies of the State, are authorized or
18 obligated by law or executive order to be closed for business.
19 "Code" means the Internal Revenue Code of 1986, as amended, and any successor statute,
20 together with corresponding and applicable final, temporary or proposed regulations and revenue
21 rulings issued or amended with respect thereto by the Treasury Department or Internal Revenue
22 Service of the United States.
23 "Effective Date" shall mean September 6,2005.
24 "Equivalent Dwelling Units" or "EDUs" shall mean the standard unit of applying System
25 Development Charges, as described in this Lease. For residential improved parcels, a minimum of one
26 EDU shall be applied to each family residential dwelling, condominium unit and mobile home. EDUs
27 for multifamily structures are determined by the number of dwelling units (i.e.: six units in a
28 multifamily structure will constitute six EDUs). For non-residential improved parcels of property, the
29 number of EDUs will be calculated based on a formula to be determined by the Lessee. A minimum of
30 one (1) EDU shall apply to each parcel unit
31 "Final Audit Report" shall mean the report for each Project identifying all Project Costs
32 required in Section 8.3 hereof. The Final Audit Report shall identify all Reimbursement Amounts
33 received by the Lessee from the Lessor, all funds provided the Lessee and any funds provided by the
34 State or the federal government applied to the Project Costs and otherwise describe the parties'
35 compliance with the terms of the Interlocal Agreement and this Lease.
36 "Fiscal Year" shall mean each twelve-month period beginning October 1 and ending on the
37 next succeeding September 30.
Page 5
1 "Independent Insurance Consultant" shall mean a nationally recognized, independent actuary,
2 insurance company or broker that has actuarial personnel experienced in the area of insurance for
3 which the Lessee is to be self-insured.
4 "Lease" shall mean this Lease Agreement, as the same may be amended or supplemented from
5 time to time in accordance with its terms, including the Exhibits hereto, as executed and delivered by
6 the Lessor and the Lessee.
7 "Lease Term" shall mean the period during which the lease is effective as provided in Section
8 2.2 hereof.
9 "Lessee" shall mean the Florida Keys Aqueduct Authority, an independent special district duly
10 created and organized under the laws of the State.
11 "Lessee Bonds" shall mean revenue bonds or any other obligations issued from time to time
12 by the Lessee for the purpose of paying a portion of the costs of designing, constructing and
13 equipping the System, which bonds or 0 bligations are payable from the revenues of the System net of
14 the Operations and Maintenance Expenses, any available System Development Charges and other
15 legally available revenues of the Lessee.
16 "Lessee System Manager" shall mean an employee of the Lessee or an individual or firm hired
17 and compensated by the Lessee to provide independent System construction and/or operations
18 oversight for the Lessee.
19 "Lessor" shall mean Monroe County, Florida, a political subdivision of the State of Florida.
20 "Lessor Bonds" shall mean the bonds to be issued by Monroe County, Florida to the limits of
21 (a) the bonding capacity of the infrastructure sales surtax received by the Lessor and (b) the County's
22 ability to levy special assessments in an amount not to exceed $4,500 per EDU.
23 "Operations and Maintenance Expenses" shall mean the costs of operating and maintaining
24 the System determined pursuant to generally accepted accounting principles (as applied to state and
25 local governments), exclusive of interest on any debt payable from system revenues, depreciation, and
26 any other items not requiring the expenditure of cash.
27 "Permitted Exceptions" shall mean those encumbrances described in Exhibit C hereto.
28 "Project(s)" shall mean the design, permitting, construction and equipping of components of
29 the System to be constructed and equipped by Lessee on the System Site leased to the Authority under
30 this Lease. A summary of each Project, together with Project Costs and schedules for completion of
31 construction and placing Projects into service and net contribution allocated from Lessor Bonds for
32 each Project shall be described in greater detail in a Supplement to Lease.
33 "Project Costs" shall mean the cost of designing, permitting, constructing and equipping each
34 Project including the labor, materials and equipment to construct each Project in accordance with the
35 contracts to be entered by the Lessee and any other costs related thereto in accordance with generally
36 accepted accounting principles with respect to each Project. Project Costs shall not include
Page 6
1 Operations and Maintenance Expenses other than expenditures related to initial Project testing and
2 start up not expected to be covered from users or ratepayers.
3 "Reimbursement Amount" shall mean the amounts paid to the Lessee by the Lessor for any
4 Project Costs expended by the Lessee.
5 "System" shall mean the wastewater and sewer facilities and all appurtenances thereto and
6 interest therein as constructed from time to time on or connected to the System Site, as more
7 particularly described in Exhibit B hereto, together with additions thereto as may be made from time
8 to time by the Lessor and the Lessee pursuant to a Supplement to Lease, which supplement shall
9 identify specific Projects to be undertaken to complete the System.
10 "System Development Charges" shall mean connection fees, capital expansion fees, utility
11 improvement fees or other similar fees and charges collected by the Lessee as a contribution toward
12 costs.
13 "System Site" shall mean the real property upon which the System is located in the
14 unincorporated portions of Monroe County, Florida, as more particularly described in Exhibit A
15 hereto, together with additions thereto as may be made from time to time by the Lessor and the
16 Lessee, pursuant to a Supplement to Lease.
17 "State" shall mean the State of Florida.
18 "Supplement to lease" shall mean a supplement to this Lease substantially in the form of
19 Exhibit E attached hereto, executed by the Lessor and Lessee for the purpose of adding parcels of real
20 property to the System Site as set forth on Exhibit A hereto and to add additions to the descriptions
21 of the System as set forth on Exhibit B hereto, including descriptions of each Project.
22
23
24 [Remainder of page left intentionally blank]
25
Page 7
1 ARTICLE II
2
3 LEASE OF SYSTEM AND SYSTEM SITE
4
5 2.1 Lease. The Lessor hereby demises and leases to the Lessee, and the Lessee hereby leases
6 from the Lessor, the right, title and interest of the Lessor in and to the System Site and the System,
7 together with any required easements appurtenant or easements in gross necessary for the extension
8 and operation of the System, and the Lessee agrees to contract to construct the System on the System
9 Site and to continuously operate and maintain the System during the term hereof, all on the terms
10 and conditions set forth in this Lease. Lessor and Lessee hereby confirm Lessor's ownership interest
11 and Lessee's leasehold interest in the System Site and System during the term of this lease. The Lease
12 of the System Site shall only be subject to the Permitted Exceptions. From time to time, the Lessor
13 and the Lessee shall add additional parcels of real property to this Lease during the Lease Term
14 pursuant to a Supplement to Lease as needed to complete the System. Such additional fee simple
15 parcels (or other interests) may be added to this Lease Agreement by the joint execution of a
16 supplement to Exhibit A hereto and recorded as a Supplemental Memorandum of Lease in the Official
17 Records of Monroe County, Florida, and each such additional parcel shall become immediately subject
18 to the terms and conditions of this Lease Agreement upon the execution, delivery and recordation
19 thereof.
20
21 2.2. Lease Term. The Lease shall be for an original term commencing on the Effective Date
22 and shall continue until September 30, 2104. Upon expiration of the Lease Term the Lessee shall
23 execute and deliver such documents, if any, as shall be necessary to evidence such expiration and
24 confirm ownership of the System Site and System by Lessor.
25
26 2.3. Acquisition of System. The Lessor recognizes that the Lessee will be responsible for the
27 design, construction and equipping of the System. The Lessee understands that the Lessor will
28 provide, from time to time, proceeds of the sale of Lessor Bonds (together with earnings thereon) to
29 be deposited with the Lessee in accordance with Article VIII hereof or any other procedure agreed to
30 by Lessor and Lessee to pay a portion of the costs of the design, construction and equipping of the
31 System as provided in the Interlocal Agreement.
32
33 The parties hereto each acknowledges that the amount of moneys to be provided by the Lessor
34 will not be sufficient to pay all of the costs of the System. Lessor and Lessee will cooperate in the
35 application for available State or federal grants and loans to pay a portion of the costs of the System.
36 To the extent the funds provided by the Lessor, together with any State or federal grants or loans, are
37 not sufficient to pay all of the costs of the System, the Lessee will issue Lessee Bonds to pay the
38 remaining costs of the System.
39
40 2.4. Lessee's Liability. From and after the Effective Date, as between the Lessor (and any
41 assignee of the Lessor) and the Lessee, the Lessee assumes liability for all risks with respect to the
42 System, provided, however, the Lessee shall not be considered or deemed to be an indemnitor of the
43 Lessor for Lessor's actions, and provided further, that this Section 2.4 shall not be construed to limit
44 any claim by the Lessee for damages to the System by any party other than the Lessee or a party
45 under the control and direction of the Lessee.
Page 8
1
2 2.5. Possession and Enjoyment. From and after the Effective Date, the Lessor agrees that it
3 will not interfere with the quiet use and enjoyment of the System by the Lessee during the Lease Term
4 and that the Lessee shall during such Lease Term peaceably and quietly have, hold and enjoy such
5 System, without hindrance or molestation from the Lessor, except as expressly set forth herein. At
6 the request of the Lessee, the Lessor shall join in any legal action in which the Lessee asserts its right
7 to such possession and enjoyment to the extent the Lessor lawfully may do so.
8
9 2.6. Disclaimer of Warranties. THE LESSEE EXPRESSLY ACKNOWLEDGES THAT THE
10 LESSOR, NOT BEING THE VENDORS OR CONTRACTORS OF ANY PROJECT WHICH
11 COMPRISES OR WILL COMPRISE THE SYSTEM, THE VENDOR'S AGENTS OR THE CONTRAC-
12 TOR'S AGENTS, MAKE NO WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED,
13 AS TO THE TITLE TO, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DESIGN
14 OR CONDITION OF, OR AS TO THE QUALITY, CAPACITY OF THE MATERIAL OR
15 WORKMANSHIP IN ANY SUCH PROJECT OR ANY WARRANTY THAT THE PROJECT WILL
16 SA TISFY THE REQUIREMENTS OF ANY LAW, RULE, SPECIFICATION OR CONTRACT WHICH
17 PROVIDES FOR SPECIFIC MACHINERY, OPERATORS OR SPECIAL METHODS OR ANY OTHER
18 WARRANTY OF ANY KIND WHATSOEVER. It is agreed that all such risks, as among Lessor and
19 the Lessee are to be borne by the Lessee at its sole risk and expense and the Lessee hereby agrees to
20 look solely to any contractor, vendor or supplier of the System for all such matters. THE LESSEE
21 FURTHER EXPRESSLY ACKNOWLEDGES THAT THE LESSOR MAKES NO PATENT
22 WARRANTIES OR REPRESENTATIONS WHATSOEVER, AND THAT LESSOR SHALL NOT BE
23 LIABLE FOR ANY ACTUAL, CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES.
24
25 2.7. Warranties of the Facility. The Lessee acknowledges and represents that it will obtain
26 from the appropriate vendors and contractors certain warranties regarding the System. The Lessee
27 reserves all rights to enforce each of these warranties so long as this Lease has not terminated
28
29 2.8. Representations, Covenants and Warranties of the Lessee. The Lessee represents,
30 covenants, and warrants as follows:
31
32 (i) The Lessee is an independent special district created pursuant to Chapter 76-441,
33 Laws of Florida, as amended, has powers to enter into this Lease and has duly authorized and
34 taken the necessary acts required prior to (including all required approvals) the execution and
35 delivery of this Lease. The Lessee warrants that this Lease, upon the execution and delivery
36 thereof, is a valid, legal and binding limited obligation of the Lessee.
37
38 (ii) Neither the execution and delivery of this Lease nor the consummation of the
39 transactions contemplated hereby, nor the fulfillment of or compliance with the terms and
40 conditions hereof conflicts with or results in a breach of the terms, conditions, or provision of
41 any restriction or any agreement or instrument to which the Lessee is now a party or by which
42 the Lessee is bound or constitutes a default under any of the foregoing, nor conflicts with or
43 results in a violation of any provision of law governing the Lessee and no representation,
44 covenant and warranty herein is false, misleading or erroneous in any material respect.
45
Page 9
1 (iii) There is no action, suit, proceeding, inquiry or investigation, at law or in equity,
2 before or by any court, public board or body, known to be pending or threatened against or
3 affecting the Lessee nor to the best of the knowledge of the Lessee is there any basis therefor,
4 wherein, an unfavorable decision, ruling, or finding would materially and adversely affect the
5 transactions contemplated by the Lessee or which would adversely affect, in any way, the
6 validity or instrument to which the Lessee is a party, used or contemplated for use in the
7 consummation of the transactions contemplated hereby.
8
9 (iv) In its use of the System, the Lessee shall comply with all applicable State, and
10 federal laws, regulations, rules, orders, standards and codes and with all hazard insurance
11 underwriters standards applicable to the System.
12
13 (v) The Lessee shall establish rates, fees and System Development Charges for the
14 System which will be sufficient to provide funds adequate to fully cover the Operations and
15 Maintenance Expenses of the System and to pay, when due to the Lessee Bonds (providing for a
16 debt service coverage ratio as may be required by a bond insurer providing a municipal bond
17 insurance policy for any series of Lessee Bonds) or pursuant to the authorizing resolutions
18 governing any series of Lessee Bonds.
19
20 (vi) All revenues derived from the System by the Lessee over and above maintenance,
21 operations, customer service, billing, and any direct costs specifically incurred to provide these
22 services shall be used solely for the purpose of the System, such as repayment of debt service
23 and retirement of Lessee Bonds.
24
25 2.9. Representations, Covenants and Warranties of the Lessor. The Lessor represents
26 covenants and warrants as follows:
27
28 (i) The Lessor is a political subdivision of the State of Florida, and as such, has all
29 necessary power to enter into this Lease and is possessed of full power to own, lease and hold
30 real and personal property and to lease and sell the same as Lessor, and has duly authorized the
31 execution and delivery of this Lease.
32
33 (ii) Neither the execution and delivery hereof, nor the fulfillment of or compliance with
34 the terms and conditions hereof, nor the consummation of the transactions rontemplated
35 hereby, conflicts with or results in a breach of the terms, conditions and provisions of any
36 restriction or any agreement or instrument to which the Lessor is now a party or by which the
37 Lessor is bound, or constitutes a default under any of the foregoing.
38
39 (iii) To the knowledge of the Lessor, there is no litigation or proceeding pending or
40 threatened against the Lessor or any other person affecting the right of the Lessor to execute,
41 deliver or assign this Lease or to comply with its obligations under this Lease. Neither the
42 execution nor delivery of this Lease by the Lessor, nor compliance by the Lessor with it
43 obligations under this Lease, require the approval of any regulatory body, any parent
44 company, or any other entity, which approval has not been obtained.
45
Page 10
1 2.10. Care and Use of System. The Lessee at its expense, shall maintain the System in
2 first-class operating condition, repair and appearance and in the condition when construction is
3 completed hereunder (ordinary wear and tear excepted) and shall protect same from deterioration,
4 other than normal wear and tear; shall cause the System to be used within its normal capacity,
5 without abuse and in compliance with the requirements of applicable laws, ordinances and
6 regulations and the requirements of any policy of insurance required under Section 5.3 hereof; and
7 shall cause the System to be operated by competent persons only and shall obtain, at the Lessee's
8 expense, all permits and licenses, if any, required by law for the operation of the System. The Lessee
9 agrees that Lessor shall not be responsible for latent or patent or other defects, wear and tear or
10 gradual deterioration or loss of service or use of the System or any part thereof or for damage from
11 fire or other casualty. Lessor shall not be liable to the Lessee or anyone else for any liability, injury,
12 claim, loss, damage or expense of any kind or nature caused directly or indirectly by the inadequacy of
13 the System or any item supplied by any materialmen or supplier or any other party, any interruption
14 of use or loss of service or usage or performance of any System component, any loss of business or
15 other consequence or damage, whether or not resulting directly or indirectly from any of the
16 foregoing.
17
18 2.11. Mutual Waiver of Subrogation Rights. Lessor and Lessee and all parties claiming under
19 them mutually release and discharge each other from all claims and liabilities arising from or caused
20 by any casualty or hazard covered or required hereunder to be covered in whole or in part by
21 insurance on the System or in connection with property on or activities conducted on the System,
22 and waive any right of subrogation which might otherwise exist in or accrue to any person on
23 account thereof and evidence such waiver by endorsement to the required insurance policies, provided
24 that such release and waiver shall not operate in any case where the effect is to invalidate such
25 insurance coverage.
26
27 2.12. Waiver. Lessor, its agents and employees, shall not be liable for, and Lessee waives all
28 claims against Lessor for, damage, including but not limited to consequential damages, to person,
29 property or otherwise, sustained by Lessee, or any person claiming through Lessee resulting from
30 any accident or occurrence in or upon any part of the System including, but not limited to, claims for
31 damage resulting from: (a) any equipment or appurtenances becoming out of repair; (b) Lessee's
32 failure to keep any part of the System in repair; (c) injury done or caused by wind, water, or other
33 natural element; (d) damage to or loss by theft or otherwise of property of Lessee or others; (e) any act
34 or omission of owners of adjacent or contiguous property, or of Lessor, its agents or employees. All
35 property of Lessee, kept in the System shall be so kept at Lessee's risk only and Lessee shall save
36 Lessor harmless from claims arising out of damage to the same, including subrogation claims by
37 Lessee's insurance carrier.
38
39 2.13. Quiet Enjoyment. The Lessor covenants and agrees with the Lessee that so long as the
40 Lessee keeps and performs all of the covenants and conditions by the Lessee to be kept and performed
41 hereunder, the Lessee shall have quiet and undisturbed and continued possession of the System, free
42 from any claims against the Lessor and all persons claiming under, by or through the Lessor.
Page 11
1 ARTICLE III
2
3 LEASE PAYMENTS
4
5
6 3.1. Payment of Lease Payments. The Lessee agrees to pay to Lessor, on the Effective Date
7 hereof, the sum of $10 and other good and valuable consideration, the receipt and sufficiency of which
8 is hereby acknowledged by Lessor, and further agrees to undertake the responsibility and obligations
9 for the design, development, construction, operations and financing of the System as provided herein
10 during the Lease Term.
11
12 3.2. Lease Payments to be Unconditional. All payments, obligations and undertakings by
13 the Lessee hereunder from and after the Effective Date, shall be absolute and unconditional, and such
14 payments and other obligations and undertakings shall be paid or performed when due without
15 notice or demand and without abatement or any rights of set-off, recoupment or counterclaim the
16 Lessee might have against any supplier, contractor, or any other person and whether or not the
17 System is accepted for use or used by the Lessee or available for use by the Lessee, whether as a result
18 of damage, destruction, condemnation, defect in title or failure of consideration or otherwise. It is the
19 express intent of the Lessor and Lessee that this Lease shall be deemed and construed to be a "triple
20 net lease".
21
22 3.3. Net Lease. The Lessee and Lessor intend the payments hereunder to be net to the Lessor.
23 The Lessee shall comply with all of its obligations hereunder and pay from Lessee's legally available
24 funds all payments by the Lessee required hereunder, and any interest imposed on any of the
25 foregoing, during the Lease Term; and, as between Lessor and Lessee, the Lessee will pay all reason-
26 able expenses incurred by Lessor in connection with all filings or recordings of any documents
27 relating to initial delivery of this Lease. The Lessee will payor make provisions for payment of, as the
28 same shall become due, all lawful taxes and assessments, or any interest and penalties relating thereto,
29 if any, or real estate taxes or other municipal or governmental charges lawfully levied or assessed by
30 the federal, state or municipal government upon the Lessor or Lessee with respect to the System or
31 any part thereof or upon any payments in respect thereof under this Lease or any other agreement,
32 instrument or document made or to be made in connection herewith. The Lessee may in good faith
33 and by appropriate proceedings, contest any such taxes or charges, including real estate taxes, with
34 due diligence so long as such proceedings do not impair the Lessee's ability or obligations to pay the
35 payments hereunder.
Page 12
1 ARTICLE IV
2
3 TERMINATION
4
5 4.1. Termination of Lease Term. The Lease Term will terminate on September 30, 2104.
6
7 4.2. Effect of Termination. Upon the termination of the Lease Term, the Lessee shall execute
8 and deliver a release of this Lease to the Lessor, at Lessee's cost.
9
10 ARTICLE V
11
12 COVENANTS OF LESSEE
13
14 5.1. Maintenance of the System. Lessee shall, following substantial completion of the
15 System, be responsible for all repair and maintenance of the System (notwithstanding the right to
16 enforce and collect on any warranties), both interior and exterior and both structural and
17 nonstructural, whether foreseeable or not foreseeable. Lessee shall keep or cause to be kept the
18 foundations structural and operation portions of the System in first-class order, repair and condition.
19 Lessee shall commence required repairs as soon as practicable. Lessee shall at all times keep the
20 System and all equipment and appurtenances thereof and other mechanical equipment and
21 appurtenances within the System and all parts of the System, in good order, condition and repair and
22 clean, orderly, sanitary, safe and watertight, including but not limited to doing such things as are
23 necessary to cause the System to comply with applicable laws, rules, regulations and orders of State
24 and federal governmental regulators. If replacement of equipment, fixtures and appurtenances thereto
25 is necessary, Lessee shall replace same with new or completely reconditioned equipment, fixtures and
26 appurtenances, and repair all damages done in or by such replacement.
27
28 All obligations of the Lessee, under this Section 5.1 shall be at the Lessee's sole cost and expense.
29
30 5.2. Taxes, Other Governmental Charges and Utility Charges. The parties acknowledge
31 and agree that the System is immune from ad valorem taxes, and therefore not subject to assessments
32 levied by governmental authorities. However, in the event that the ownership, leasing, use,
33 possession or acquisition of the System is found to be subject to taxation, assessments or
34 governmental charges in any form, the Lessee will pay, during the Lease Term, as the same come due,
35 all taxes and other governmental charges of any kind whatsoever that may at any time be lawfully
36 assessed or levied against or with respect to the System and any facilities or other property acquired
37 by the Lessee as permitted under this Lease in substitution for, as a renewal or replacement of, or a
38 modification, improvement or addition to the System or System Site; as well as all utility and other
39 charges incurred in the operation, maintenance, use, occupancy and upkeep of the System and System
40 Site; provided that, with respect to any governmental charges that may lawfully be paid in
41 installments over a period of years, the Lessee shall be obligated to pay only such installments as have
42 accrued during the time the Lease Term is in effect. In no event shall Lessor impose or levy any tax,
43 assessments or governmental charges in any form, on the System or System Site during the Lease
44 Term.
45
Page 13
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5.3. Provisions Regarding Insurance and No Waiver of Sovereign Immunity.
(1) The parties stipulate that each is a state governmental agency as defined by Florida
Statutes and represents to the other that it has purchased suitable public liability, vehicle liability, and
workers' compensation insurance, or is self-insured, in amounts adequate to respond to any and all
claims, including claims under State or federal actions for civil rights violations, which are not limited
by Section 768.28 and Chapter 440, Florida Statutes, as well as any and all claims within the
limitations of Section 768.28 and Chapter 440, Florida Statutes, arising out of the activities governed
by this Lease.
(2) Notwithstanding the provisions of Section 768.28, Florida Statutes, the participation of
the Lessor and Lessee in this Lese and the acquisition of any commercial liability insurance coverage,
self-insurance coverage, or local government liability insurance pool coverage shall not be deemed a
waiver of immunity to the extent of liability coverage, nor shall any contract entered into by Lessor
or Lessee be required to contain any provision for waiver. The Lessee shall name the Lessor as a
covered person under the Lessee's liability insurance policies addressing the System Site and System as
its interest may appear.
5.4. Damage, Destruction or Condemnation. If prior to the termination of the Lease Term,
the System or any portion thereof is destroyed or is damaged by fire or other casualty, or title to, or
the temporary use of such System or any portion thereof shall be taken under the exercise of the
power of eminent domain, the Lessee shall cause the net proceeds of any insurance or net proceeds of
any claim or condemnation award to be applied to the prompt repair, restoration, or replacement, in
which case any such replacement shall become subject to the provisions of this Lease as fully as if it
were originally a part of the System. Any such net proceeds received by the Lessee shall be applied by
the Lessee toward the payment of the cost of such repair, restoration or replacement, in the manner
and upon the conditions set forth in Section 2.3 hereof.
Notwithstanding the foregoing, following such event of damage, destruction or condemnation,
this Lease shall remain in full force and affect while the Lessee restores or rebuilds the System.
5.5. Insufficiency of Net Proceeds. If the net proceeds described in Section 5.4 hereof are
insufficient to pay in full the cost of repair, restoration or replacement of the System, the Lessee shall
finance the additional cost of such repair, restoration or replacement through the issuance of Lessee
Bonds or Refunding Bonds.
5.6. Federal Tax Covenants. Neither the Lessor nor the Lessee shall take any action or refrain
from taking any action, nor shall it cause or, to the best of its ability, allow any other party under its
direction or control to do so, which act or failure to act could adversely affect the exclusion from gross
income for federal income tax purposes of the interest on the Lessor Bonds or the Lessee Bonds.
Neither the Lessor nor the Lessee will make or will direct the making of any investment of the
proceeds of the sale of the Lessor Bonds or the Lessee Bonds which would result in the Lessor Bonds
or the Lessee Bonds being characterized as "arbitrage bonds" under Section 148 of the Code. The
Lessor and Lessee shall each take all action required under the Code, including the calculation and
payment of any rebate necessary to preserve the exclusion from gross income for federal income tax
purposes of the interest portion of the Lessor Bonds or the Lessee Bonds; provided, however, that the
Lessor and the Lessee may delegate such responsibility to a third party.
Page 14
1
2 In the operation of the System, the Lessee shall require that any contract comply with all
3 applicable Treasury rules and regulations regarding the private business use of a facility financed with
4 the proceeds of tax exempt obligations.
5
6 The Lessee shall not enter into any management contract with a non-governmental party for
7 the management of any portion of the System unless such management contract constitutes a
8 "qualified management contract" as described in Internal Revenue Service Revenue Procedure 97-13, as
9 amended or supplemented from time to time, or as described in Sections 141 through 145 of the Code,
10 and applicable Treasury Regulations contemporaneously in effect.
11
12 5.7. Liens. During the Lease Term both the Lessor and Lessee shall not, directly or indirectly,
13 create, incur, assume or suffer to exist any security interest, pledge, lien, charge, encumbrance or claim
14 on the System or System Site, other than as herein provided.
15
16 5.8 Use of System. The Lessee will not use, or maintain the System improperly, carelessly, in
17 violation of any applicable law or in a manner contrary to its intended use as facilities for provision of
18 essential government services as contemplated by the Lease. The Lessor shall promptly provide and
19 issue without ch arge therefore all permits and licenses necessary for construction and operation of the
20 System, or any related facilities. The Lessee shall obtain all permits and licenses, if any, necessary for
21 the construction and operation of the System. In addition, the Lessee agrees to comply in all respects
22 (including, without limitation, with respect to the use and maintenance of the System) with all
23 applicable laws, regulations, orders and decrees of any State or federal regulatory body exercising any
24 power or jurisdiction over the System; provided, however, that the Lessee may contest in good faith
25 the validity or application of any such law or rule in any reasonable manner which does not
26 adversely affect the interest or rights of the Lessor under the Lease.
27
28 ARTICLE VI
29
30 TRANSFER OR ASSIGNMENT
31
32 6.1. Assignment and Subletting. The System Site shall not be transferred or conveyed
33 during the Lease Term, without the prior written consent of the Lessee. This Lease shall not be
34 assigned by the Lessee nor shall the Lessee lease the System or any portion thereof, without the prior
35 written consent of the Lessor.
36
37 ARTICLE VII
38
39 ADDITIONAL LESSEE COVENANTS
40
41 7.1. No Free Service. Except as may be required by applicable law, the Lessee shall not
42 permit connection to, or furnish any services afforded by the System without making a charge,43 therefor based on the Lessee's connection policies.
44
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7.2. Mandatory Connections. The Lessee shall adopt, as necessary, and enforce requirements
consistent with applicable laws for the owner, tenant or occupant of each building located on a lot or
parcel of land for which the System is available to connect such building to the System.
7. 3. Additions and Modifications. After completion of the System, the Lessee may make any
additions, modifications or improvements to the System which the Lessee deems desirable and which
do not materially reduce the operational integrity of any part of the System. All such renewals,
replacements, additions, modifications and improvements shall become part of the System.
7.4. Access to Project Site and Places of District Record Retention. The Lessee shall provide
Lessor representatives with access to System Site and administrative offices (as well as other offices
where Lessee records may be retained) during normal business hours. The Lessee shall cause its
engineers and contractors to cooperate in the fulfillment of the Lessee's obligations hereunder and
shall require cooperation with Lessor's representatives during System inspections including, but not
limited to, making contracts, invoices, purchase documents, plans, maps and specifications available
for inspection and copying.
ARTICLE VIII
REIMBURSEMENTS
8.1. Reimbursements. Reimbursements to the Lessee shall be made by the Lessor and only
when the requests for such reimbursements are accompanied by a certification from the Monroe
County's Engineering Department that such reimbursements are for expenditures that are properly
characterized as Project Costs. Reimbursements shall be made directly to the Lessee for Project Costs.
Reimbursement for Project Costs shall be made only after receipt by the Lessor of the following from
the Lessee:
(1) A completed reimbursement request form in substantially the form attached hereto as
Exhibit D signed by the Lessee's Authorized Representative. Such requests must be accompanied by
an itemized disclosure of the materials, labor, or services provided in sufficient detail to identify the
nature of the work performed; the cost or charges for such work; and the person providing the
service or performing the work.
(2) A certification signed by the Lessee's Authorized Representative as to the current
estimated costs of the Project; that the materials, labor, or services represented by the invoice have
been satisfactorily purchased, performed, or received and applied to the Project and that the Lessee
was required to incur such Project Costs for materials, labor or services under the terms and
provisions of the contract(s) between the Lessee and third parties providing services necessary to
complete a Project; and in the case of Project Costs which are not direct materials, labor or third party
service expenditures, such expenditures are properly characterized as Project Costs.
(3) A certification by the engineer responsible for overseeing construction indicating the
percentage of the Project completed as of the date of such certification; stating that the equipment,
materials, labor and services represented by the construction invoices have been satisfactorily
purchased or received, and applied to the Project in accordance with construction contract
Page 16
1 documents; stating that payment is in accordance with construction contract provisions; stating that
2 construction, up to the point of the reimbursement request, is in compliance with the contract
3 documents; and identifying all additions or deletions to the Project which have materially altered the
4 Project's performance standards, scope, or purpose.
5
6 (4) Such other certificates or documents by engineers, attorneys, accountants, contractors,
7 or suppliers as may reasonably be required by the Lessor.
8
9 8.2. Advance. The Lessor and the Lessee recognize that the Lessee is in need of capital funds
10 to initiate Projects. Recognizing this need, the Lessor agrees to provide the Lessee with the Advance
11 to be used by the Lessee solely to pay Project Costs. The Advance shall be paid by the Lessor to the
12 Lessee within thirty (30) days of the issuance of the initial series of Lessor Bonds issued to meet the
13 Lessor's obligations pursuant to this Lease. As the Advance is expended by the Lessee, the Lessee
14 shall complete a reimbursement requisition in the form provided in Exhibit D and supply the Lessor
15 such other documents and information as required in this Lease as may be necessary to permit the
16 Lessor to confirm that the Advance (including all investment earnings thereon) has been used solely
17 for Project Costs. The Lessor shall then reimburse the Lessee for the amount identified in each
18 respective reimbursement requisition in order to replenish the Advance. This process shall continue
19 until the proceeds of the Lessor Bonds are fully expended. The Lessee shall provide the Lessor with
20 biannual reports of the investments and earnings relating to the Advance until such time as the
21 proceeds from the Lessor Bonds, including the Advance and all investment earnings thereon have
22 been expended as required by the Interlocal Agreement.
23
24 8.3. Audit and Monitoring Requirements. The parties agree to the following audit and
25 monitoring requirements:
26
27 (1) Final Audit Report. Within six (6) months after completion of each Project, as
28 demonstrated by the Lessee placing a Project into service, the Lessee shall submit to the Lessor a Final
29 Audit Report. Accordingly, the parties shall direct their respective auditors to simultaneously notify
30 the Lessor and Lessee immediately if anything comes to the auditor's attention during the
31 examination of records that would lead the auditor to question whether any expenditures are not
32 allowable Project Costs under this Lease. The final determination of whether such costs are
33 appropriate Project Costs shall be made by the Lessor.
34
35 (2) Record Retention. The Lessor and Lessee shall each retain sufficient records
36 demonstrating its compliance with the terms of the Interlocal Agreement and this Lease for a period of
37 five years from the date that the Final Audit Report is issued for each Project, and shall allow each
38 other, or their designee, access to such records upon request. The Lessor and Lessee shall ensure that
39 audit working papers also are made available to each other, or their designee, upon request, for a
40 period of five years from the date that the Final Audit Report is issued.
41
42 (3) Monitoring. The Lessee agrees that the Lessor's Project monitoring procedures may
43 include, but not be limited to, review of contracts related to the Project as well as engineering designs
44 and plans, on-site visits by Lessor designees at Project sites and the Lessee's administrative offices,
45 limited scope audits, and/or other procedures. Lessee agrees to comply and cooperate with any
46 monitoring procedures and processes deemed appropriate by the Lessor. In the event the Lessor
47 determines at any time that a limited scope audit of the System or a Project is appropriate, the Lessee
Page 17
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agrees to comply with any additional instructions provided by the Lessor to the Lessee regarding
such audit. The Lessee further agrees to comply and cooperate with any inspections, reviews,
investigations, or audits undertaken by the Lessor or other auditor of Lessor's business. Any costs
incurred by the Lessor to perform any review, audit and other monitoring activities permitted under
this Lease shall be included in Lessor's budget to be identified in each Supplement to Lease.
(4) Reporting. Each party shall provide to the other party a copy of any reports,
management letters, or other information required to be submitted to lenders or other persons as may
be required pursuant to the terms of the Lessor Bonds or Lessee Bonds, State revolving loan fund
documents and any documents related to any Project. Such copies shall be forwarded to the
respective parties hereto at the same time as such documents are provided to third parties pursuant to
the terms of the Lessor Bonds or Lessee Bonds.
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ARTICLE IX
MISCELLANEOUS
9.1. Amendments. The terms of the Lease shall not be waived, altered, modified,
supplemented or amended in any manner whatsoever except by written instrument signed by the
Lessor and Lessee.
9.2. Notices. All notices, certificates, requests or other communications (other than payments
of Lease Payments by the Lessee) hereunder shall be in writing and shall be sufficiently given and
shall be deemed given when delivered or three (3) Business Days after being mailed by first class mail,
postage prepaid, to the parties at their respective places of business as follows (or other address as
shall be designated by any party in writing to all other parties):
Lessor:
Monroe County
1100 Simonton Street
Key West, Florida 33040
Attention: County Administrator
With copy to: County Attorney
Lessee:
Florida Key Aqueduct Authority
1100 Kennedy Drive
Key West, Florida 33040
Attention: Executive Director
With copy to: General Counsel
9.3. Binding Effect. The Lease shall inure to the benefit of and shall be binding upon the
Lessor and the Lessee and their respective successors and assigns.
9.4. Severability. In the event any provision of the Lease shall be held invalid or
unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render
unenforceable any other provision hereof.
Page 18
9.5. Execution in Counterparts. The Lease may be executed in several counterparts, each of
which shall be an original and all of which shall constitute but one and the same instrument.
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26 IN WITNESS WHEREOF, the Lessor and Lessee have caused this Lease to be duly executed on
27 th~!orth below their respective signatures and all as of the day and year first written above.
~(~' .::~. >.' .
28 f;; (~>..;..-, "-..
~f :~ \~-=-;" "'" .
3 1/ 'I\tte~t: 1 b~ i. Kolhage, Clerk
'F \ \~
l ,- \: "- ( ,"
3~ '\ ,.- \ "I~:
~~ ~,' :~;~;1lcM c.lJv')tcwlf;;;j
35 - [Deputy] Clerk 9/.;).. o/D.5
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43 Date:
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9.6. Captions. The captions or headings in the Lease are for convenience only and in no way
define, limit or describe the scope or intent of any provisions or sections of this Lease.
9.7. Memorandum of Lease. Simultaneously with the execution of the Lease, the Lessee and
the Lessor shall each execute, acknowledge and deliver a Memorandum of Lease with respect to the
Lease. Said Memorandum of Lease shall not in any circumstances be deemed to change or otherwise
to affect any of the obligations or provisions of such instrument.
9.8. Applicable Law. The Lease shall be governed by and construed in accordance with the
laws of the State of Florida, and the venue for any cause of action hereunder shall be in Monroe
County, Florida.
9.9. Non-recourse Obligation of Lessee. Notwithstanding anything to the contrary herein or
in any of the instructions, documents or certificates relating hereto, the obligations, liabilities and
responsibilities of the Lessee, of any kind, with respect to the obligations hereunder to be performed
by the Lessee shall be payable solely out of the proceeds derived by the Lessee from the System and the
Lessee shall have no other or further liability hereunder or arising therefrom.
9.10. Conflicts. Notwithstanding anything to the contrary herein, in the event of a conflict
between the terms of this Lease and the Interlocal Agreement, the terms and conditions of the
Interlocal Agreement shall control.
BOARD OF COUNTY COMMISSIONERS OF
MONROE COUNTY, FLORIDA, as Lessor
Lft# >n ~
By:
Dixie M. Spehar, Mayor/Chairman
Monroe County Attorney
:;~~f~
- SS;:olalll County Attorney
lo\c'3.lof
Monroe County Bond Counsel
Approved or
By:
Date:
Nabors, Gibli
'l?1/:r
(SEAL)
Page 19
1 Attest:
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5 By:
6
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8 The Florida Keys Aqueduct Authority
9 General Counsel
10 Approved as to Form
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15 Date:
Page 20
THE FLORIDA KEYS AQUEDUCT
AUTHORITY, as Lessee
By:
~
~IDrman
The Florida Keys Aqueduct Authority
Bond Counsel
Approved as to form
Bryant Miller & Olive P.A.
Date:
1
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EXHIBIT A
SYSTEM SITE
Page 21
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EXHIBIT B
DESCRIPTION OF SYSTEM
B-1
EXHIBIT C
PERMITTED EXCEPTIONS
(A) Standard exceptions of title insurance coverage concerning easements or claims of
easement not shown by the public records, encroachments, overlays, boundary line disputes, or any
other adverse matter which would be disclosed by an accurate survey; provided same does not or will
not materially impair the ability of any fee simple parcel to be used by the Lessee for the purpose of
providing wastewater services or facilities in the normal course of business.
(B) Any adverse ownership claim by the State of Florida by right of sovereignty to any
portion of the property, in cluding submerged, filled and artificially exposed lands and lands accreted
to such lands.
C-1
EXHIBIT D
FORM OF REIMBURSEMENT REQUISITION
2
REIMBURSEMENT REQUISITION NO.
3
4
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The Florida Keys Aqueduct Authority (the "Authority") Request to the Board of County
Commissioners of Monroe County, Florida (the "County"):
Project:
7
Amount Requested: $
8
Total Reimbursements to Date (Exclusive of this Request): $
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1. Each obligation for which a reimbursement is hereby requested is described in
reasonable detail in Exhibit A hereto together with the name and address of the person, firm or
corporation to whom payment was made by the Authority. The initial requisitions submitted by the
Authority also include information confirming that the Advance provided by the County has been
used solely for Project Costs.
2. The bills, invoices or statements of account for each obligation referenced in Exhibit A
are on file with the Authority.
3. The Authority hereby certifies that:
(a) each obligation mentioned in Exhibit A has been properly incurred, is a proper Project
Cost, was required to be incurred and has been incurred as an administrative cost in connection with
the design and construction of a Project or paid n compliance with the contracts between the
Authority and third parties providing services necessary to complete each Project, and has not been
the basis for any previous reimbursement;
(b) no part of the reimbursement requested hereby will be used to pay for materials not yet
delivered to the respective Project for prompt incorporation or for services not yet performed in
connection therewith;
(c) no item in Exhibit A represents any portion of an obligation which the Authority is,
as of the date hereof, entitled to retain under any retained percentage agreement;
(d) to the best knowledge and belief of the Authority, insofar as any obligation described
in Exhibit A was incurred for labor, services, materials, supplies or equipment (i) such labor and
services were actually performed in a satisfactory manner in connection with the acquisition,
construction and equipping of this Project and (ii) such materials, supplies and equipment were
D-I
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actually used in connection with the acquisition, construction and equipping of this Project or were
delivered to the site of the Project (and remain at the site of the Project) for that purpose;
(e) all sums previously advanced by the County have been used solely for purposes
permitted by the Lease and the specific items which are the subject of this reimbursement request will
be so used;
(f) there has not been served upon the Authority any lien, notice of any lien, right to lien
or attachment upon or claim affecting the right to receive payment of, any moneys payable to any of
the persons or firms named in this reimbursement request, which has not been released or will not be
released simultaneously with the payment of such obligation;
(g) the use of the reimbursements requested hereunder will not result in the coven ants
made by the Authority in the Lease being violated;
(h) the current estimated cost of completing the Project is $
(ii) the percentage of completion of the Project at the time of submission of this
reimbursement request is %;
(j)
date hereof;
all warranties, representations and covenants in the Lease are true and correct on the
(k) all outstanding claims for labor and materials through the date of the last
reimbursement request have been paid, and all liens therefore have been waived;
(I) to the best knowledge and belief of the Authority, all work on the Project prior to the
submission of this reimbursement request has been performed in a good and workmanlike manner in
accordance with the construction agreements entered by the Authority with third parties for
construction of the Project;
(m) any required payment and performance bond remains in full force and effect and free
from default on the date hereof;
(n) the additions or deletions that have been made to the Project, pursuant to County
consent, which have altered the Project's performance standards, scope or purpose since the
submission of the last reimbursement requisition are itemized on the attachments hereto; and
(0) the Authority has or anticipates that it shall have available sufficient moneys to
complete the Project.
D-2
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4. All capitalized terms herein, unless otherwise defined herein, shall have the meanings
assigned to them in the Lease Agreement between the County, as Lessor and the Authority, as Lessee,
dated as of September 6, 2005.
This
day of
.20_.
APPROVED:
FLORIDA KEYS AQUEDUCT AUTHORITY
By:
Authority Engineer
Authorized Representative
APPROVED:
ENGINEERING DEPARTMENT
MONROE COUNTY, FLORIDA
By:
D-3
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Purpose
EXHIBIT A
D-4
Amount
Account
EXHIBIT E
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[FIRST, SECOND, THIRD, ETC.]
SUPPLEMENT TO LEASE
This [First, Second, Third, etc.] Supplement to Lease ("Subject Supplement") is made and
entered into as of by MONROE COUNTY, FLORIDA, a political subdivision of the State of
Florida, as lessor (the "Lessor") and THE FLORIDA KEYS AQUEDUCT AUTHORITY, an
independent special district, as lessee (the "Lessee"). All capitalized terms used herein and not
otherwise defined shall have the meaning set forth therefor in the "Lease Agreement" as hereinafter
set forth.
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WIT N E SSE T H:
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WHEREAS, the Lessor and the Lessee entered into a certain Lease Agreement (the "Lease
Agreement") dated as of September 6, 2005, as recorded in Official Records Book _ at Page _ of
the Public Records of Monroe County, Florida; and
WHEREAS, the Lessor owns that certain real property more particularly described in Exhibit
A attached hereto and made a part hereof ("System Site Parcel"); and
WHEREAS, the Lessor and Lessee intend to add the System Site Parcel as an additional
System Site to Exhibit A of the Lease Agreement and thereby supplement Exhibit A to the Lease
Agreement by subjecting the System Site Parcel to the Lease Agreement; and
WHEREAS, the Lessee intends to design, construct and equip on the System Site Parcel the
Project described on Exhibit B hereto as a portion of the System; and
WHEREAS, the Lessor and Lessee intend to add the Project to the description of the System as
set forth on Exhibit B to the Lease Agreement and thereby supplement Exhibit B to the Lease
Agreement by adding the Project as a "Project" under the Lease Agreement.
NOW, THEREFORE, in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency whereof is hereby acknowledged by each party hereto by the
other party hereto, the parties hereto do hereby acknowledge and agree as follows:
(1) The foregoing recitations are true and correct and are incorporated herein by reference.
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(2) The System Site Parcel is hereby declared to be a part of the System Site (as defined in
the Lease Agreement) which constitutes a portion of the System Site and, therefore, is a part of the
System Site as set forth in the Lease Agreement with the leasehold estate, operation and effect of the
Lease Agreement with the leasehold estate, operation and effect of the Lease Agreement applying to
the System Site Parcel as fully and to the same extent as if the System Site Parcel were described in the
Lease Agreement and therein set forth to be a part of the System Site.
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1 (3) The Project is hereby declared to be a part of the System (as defined in the Lease
2 Agreement) which constitutes a portion of the System and, therefore, is a part of the System as set
3 forth in the Lease Agreement with the operation and effect of the Lease Agreement applying to the
4 Project as fully and to the same extent as if the Project were described in the Lease Agreement and
5 therein set forth to be a part of the System.
6 (4) The Lease Agreement, [as modified by previous Supplements to Lease and] as modified
7 hereby remains in full force and effect in accordance with the terms and provisions thereof.
8 IN WITNESS WHEREOF, each of the parties hereto has caused this Subject Supplement to be
9 executed by their duly authorized officers or agents, all as of the day and year first above written.
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12 I MONROE COUNTY, FLORIDA
13 ATTEST:
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15 Its: [Deputy] Clerk
By:
Its: Chairman
16 (SEAL)
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19 ATTEST:
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22 Title: Secretary
I THE FLORIDA KEYS AQUEDUCT
AUTHORITY
By:
Title: Chairman
23 [SEAL]
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EXHIBIT A
Description of System Site Parcel
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EXHIBIT B
Description of Project
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