09/28/2005 Agreement
Gled( DIllie
Circul coun
Danny L. Kolhage
Office (305) 295-3130 Fax (305) 295-3663
Memorandum
To:
Richard Collins,
County Attorney
Attn.
Kathy Peters
From:
Isabel C. DeSantis,
Deputy Clerk
Date:
Monday, October 03, 2005
At the regular BOCC meeting of September 28,2005, the Board approved the
following:
Gas Tax Interlocal Agreement between Monroe County and the municipalities of
Islamorada, Key Colony Beach, Layton, and the City of Marathon for the sharing of the
gas tax.
Attached hereto are twelve (12) duplicate originals of the document for your
handling.
Should you have any questions, please feel free to contact me.
cc: Finance
County Attorney
/ File
Gas Tax Sharing Interlocal
GAS TAX SHARING' fT! '; RECOr:!
INTERLOCAL AGREEMENT
OS OCT: r. PH 7: I 0
This Agreement is made and entered into by MONRQ~~:;' b '~,.(' /(OOUNTY), a
political subdivision of the State of Florida, whose address,~i$' . . ~f14>n Street,
Key West, FL 33040, and ISlamorada, The Village of 'lsl~nas ~MRADA), a
municipal corporation of the State of Florida and whose address is 87000 Overseas
Highway, Islamorada, Florida 33036, the City of Key Colony Beach (KEY COLONY
BEACH), a municipal corporation of the State of Florida and whose address is PO Box
510141, 600 West Ocean Drive, Key Colony Beach, Florida 33051, the City of Layton
(LAYTON), a municipal corporation of the State of Florida and whose address is PO
Box 778, Long Key, Florida 33001, the City of Marathon (MARATHON), a municipal
corporation of the State of Florida and whose address is 10045-55 Overseas Highway,
Marathon, Florida 33050.
WHEREAS, the Constitution of the State of Florida Article XII, Section (9)
(c), and Section 206.41(1)(a), Florida Statutes, authorize the imposition of a motor
fuel excise tax which is collected by the State Board of Administration and distributed
to each county as the "Surplus Fuel Tax;" and
WHEREAS, the "Surplus Fuel Tax" may be used only for acquisition,
construction, and maintenance of roads, pursuant to Section 206.47(7), F.S.; and
WHEREAS, historically, constitutional fuel tax funds received by the County
were, and currently are, expended on public roads in the county road system, which
are exclusive of city or municipal public roads; and
WHEREAS, section 336.023(2), F.S. allows the use of the "Constitutional Gas
Tax" for "any road in the county;" and
WHEREAS, Attorney General Opinion 2003-03 advised that such roads may be
in a city street system rather than in the county street system; and
WHEREAS, Monroe County Attorney Memorandum of Guidance #2005-1
concluded that it is permissible for the "Constitutional Gas Tax" to be apportioned to
the municipalities, based on percentage of collection; and
WHEREAS, the municipalities in the County of Monroe have requested that
proportionate shares of the County's receipt of Surplus Fuel Tax, hereinafter
designated the "Constitutional Gas Tax," be distributed to them for purposes of
maintaining their own roads; and
WHEREAS, the parties are authorized by Section 163.01(4), Florida Statutes,
to enter into an interlocal agreement to carry out their independent powers; and
WHEREAS, in a memorandum dated January 5, 2005, County Engineer David
S. Koppel reported that the Mayor of Monroe County, the Mayor of Islamorada, Village
of Islands, the Mayor of the City of Marathon, the Mayor of the City of Layton, and the
Mayor of the City of Key Colony Beach have concluded to divide amongst the various
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Gas Tax Sharing Interlocal
jurisdictions the sum of TWO MILLION THREE HUNDRED THOUSAND DOLLARS
($2,300,000.00) based upon public road mileage within each jurisdiction, and to
divide an additional TWO HUNDRED THOUSAND DOLLARS ($200,000.00) amongst the
various jurisdictions based upon the number of public bridges in each jurisdiction;
now therefore,
IN CONSIDERATION OF the mutual promises and conditions contained herein,
the PARTIES agree as follows:
1. TERM.
Subject to and upon the terms and conditions set forth herein, this Agreement shall
be effective retroactive to October 1, 2004 and continue in force until the such time as
in any subsequent fiscal year either 1) the revenue is no longer distributed by the
State Board of Administration, 2) the funding is no longer budgeted by the Board of
County Commissioners or 3) by mutual consent of the parties.
2. DEFINITION.
Constitutional Gas Tax shall mean those revenues received by COUNTY from the State
Board of Administration as the COUNTY share of the surplus fuel tax authorized by
Section 206.41(1)(a), Florida Statutes, as levied by s. 16, Art. IX of the State
Constitution of 1885, as amended, and continued by s. 9(c), Art. XII of the 1968 State
Constitution, as amended.
3. PERMISSIBLE USES.
The constitutional gas tax shall only be used for road acquisitions, road construction
(including installation of traffic signals, sidewalks, bicycle paths, and landscaping),
routine and periodic road maintenance, and as certain grant matching funds, pursuant
to the provisions of Sections 206.47(7), 334.03, 336.023, and 336.024, Florida
Statutes, or an subsequent amendments thereto.
4. ROAD MILES AND BRIDGES.
The parties agree that, for purposes of this Agreement, the public road miles and
public bridge(s) within the limits and under the jurisdiction of each City, and the total,
respectively, of all public Road miles and Bridges in the County, are as follows:
JURISDICTION
ISLAMORADA
KEY COLONY BEACH
KEY WEST
LAYTON
MARATHON
Unincorporated COUNTY
TOTAL
PUBLIC ROAD MILES
39
8
80
3
58
389
577
PUBLIC BRIDGES
o
1
o
o
9
21
31
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Gas Tax Sharing Interlocal
5. INITIAL DISTRIBUTION BASED UPON PUBLIC ROAD MILES. The
COUNTY agrees to distribute to the Cities their respective proportionate shares of the
constitutional fuel tax in the total amount of TWO MILLION THREE HUNDRED
THOUSAND DOLLARS ($2,300,000.00), apportioned in the following sums:
Unincorporated COUNTY
ISLAMORADA
KEY COLONY BEACH
KEY WEST
LAYTON
MARATHON
Total
$ 1,869,440
$ 155,480
$ 31,970
$ . 0
$ 11,960
$ 231,150
$ 2,300,000
6. INITIAL DISTRIBUTION BASED UPON PUBLIC BRIDGES. The County
agrees to distribute to the Cities their proportionate shares of the constitutional fuel
tax amount of TWO HUNDRED THOUSAND DOLLARS ($200,000.00), apportioned in
the following sums:
COUNTY
ISLAMORADA
KEY COLONY BEACH
KEY WEST
LAYTON
MARATHON
Total
$ 135,480
$ 0
$ 6,460
$ 0
$ 0
$ 58,060
$ 200,000
7. PAYMENT OF DISTRIBUTION AMOUNTS. During the fiscal year ending
September 30, 2005, the first year under this agreement, the COUNTY shall pay to
the municipalities the maximum of the sums designated in Sections 5 and 6, above,
pursuant to the procedures set forth below, and contingent upon annual
appropriation:
A. The municipalities shall utilize those funds described in Sections 5 and 6 only
for uses permitted under Section 3 above, as more particularly permitted according to
court interpretations of the laws governing the uses of the tax.
B. Commencing on the effective date of this agreement, the County shall pay to
the municipalities 100% of the amounts of the funds designated above for Fiscal Year
2005.
C. Thereafter, for each subsequent fiscal year for which County budgets
distribution of gas tax to the municipalities, County shall make distributions of actual
collections on a quarterly basis pursuant to the percentages established in Section 9
below.
D. The municipalities must establish fiscal control and fund accounting procedures
that comply with generally accepted government accounting principles in order to
assure that the funds are spent for the purposes set forth in this agreement. Each
municipality shall include in its contract with its independent auditor who performs the
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Gas Tax Sharing Interlocal
annual audit a requirement to provide the County Clerk with a letter of compliance,
stating that the auditor has examined the transactions involving expenditure of the
gas tax proceeds and that the transactions are in compliance with applicable laws.
Any funds transferred by the COUNTY to a municipality under this agreement that are
determined by the Clerk, an auditor employed by the COUNTY or employed by the
State to have been spent on a purpose not contemplated by this agreement must be
paid back to the COUNTY with interest calculated pursuant to Sec. 55.03(1), FS, from
the date the auditor determines the funds were expended for a purpose not
authorized by this agreement. Failure to provide the annual letter of compliance shall
be deemed a breach for which this agreement may be terminated as to the breaching
party pursuant to Section 17.
8. NO GUARANTEED DISTRIBUTION AMOUNT. The Parties agree that the
COUNTY does not agree, warrant, or guarantee a set minimum or maximum fixed
amount of constitutional fuel tax dollars distributions for any subsequent fiscal years
beyond fiscal year 2004-05. The amount to be received by the City in any subsequent
year shall be solely dependent upon (a) the amount received from the State Board of
Administration and (b) the public road mile percentage and number of bridges
percentage calculated for the Cities in Section 9 of this Agreement.
9. PERCENTAGES BASED UPON PUBLIC ROAD MILES AND NUMBER OF
PUBLIC BRIDGES. For distributions of constitutional gas tax proceeds for
subsequent fiscal years, the Parties agree that the amounts to be distributed under
this Agreement shall be equal to the following percentages of the amount received by
the Cou nty from the S BA:
COUNTY
ISLAMORADA
KEY COLONY BEACH
LAYTON
MARATHON
80.1968 %
6.2192 %
1.5372 %
0.4784 %
11.5684 %
100.00 %
10. RECORDS - ACCESS AND AUDITS. All Parties shall maintain adequate and
complete records for a period of four years after each fiscal year allocation. Each
Party, its officers, employees, agents and contractors shall have access to the Other
Party's books, records, and documents related to this Agreement upon request. The
access to and inspection of such books, records, and documents by the Parties shall
occur at any reasonable time.
11. RELATIONSHIP OF PARTIES. The Parties are independent of each other and
shall at no time be legally responsible for any negligence on the part of the Other
Parties, their employees, agents or volunteers resulting in either bodily or personal
injury or property damage to any individual, property or corporation.
12. TAXES. The Parties are not subject to taxes and assessments.
13. INSURANCE. The parties to this agreement 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
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Gas Tax Sharing Interlocal
insurance, or is self-insured, in amounts adequate to respond to any and all claims
under federal or state actions for civil rights violations, which are not limited by
Florida Statutes Section 768.28 and Chapter 440, as well as any and all claims within
the limitations of Florida Statutes Section 768.28 and Chapter 440, as well as any and
all claims within the limitations of Florida Statutes arising out of the activities
governed by this agreement.
Each party agrees to keep in full force and effect the required insurance coverage
during the term of this Agreement. If the insurance policies originally purchased
which meet the requirements of this agreement are canceled, terminated or reduced
in coverage, then the respective party must immediately substitute complying policies
so that no gap in coverage occurs. Copies of current policy certificates shall be filed
with the Other Party whenever acquired or amended.
14. RESTRICTIONS ON AGREEMENTS ENTERED PURSUANT TO THIS
AGREEMENT. The municipalities shall include in all agreements funded under this
agreement the following terms:
A. Anti-discrimination. Contractor agrees that they will not discriminate against any
employees or applicants for employment or against persons for any other benefit or
service under this agreement because of their race, color, religion, sex, national
origin, or physical or mental handicap where the handicap does not affect the ability of
an individual to perform in a position of employment, and to abide by all federal and
state laws regarding non-discrimination.
B. Anti-kickback. Contractor warrants that no person has been employed or retained
to solicit or secure this agreement upon an agreement or understanding for a
commission, percentage, brokerage or contingent fee, and that no employee or officer
of the Municioality(ies) has any interest, financially or otherwise, in contractor. For
breach or violation of this warranty, the MunicioalityCies) shall have the right to annul
this agreement without liability or, in its discretion, to deduct from the agreement
price or consideration, the full amount of such commission, percentage, brokerage or
contingent fee.
C. Hold harmless/indemnification. Contractor acknowledges that this agreement is
funded at least in part by the County and agrees to indemnify and hold harmless
Monroe County and any of its officers and employees from and against any and all
claims, liabilities, litigation, causes of action, damages, costs, expenses (including but
not limited to fees and expenses arising from any factual investigation, discovery or
preparation for litigation), and the payment of any and all of the foregoing or any
demands, settlements or judgments (collectively claims) arising directly or indirectly
from any negligence or criminal conduct on the part of Contractor in the performance
of the terms of this agreement. The Contractor shall immediately give notice to the
Municipality and the County of any suit, claim or action made against the Contractor
that is related to the activity under this agreement, and will cooperate with the
Municipality and the County in the investigation arising as a result of any suit, action
or claim related this agreement.
D. Insurance. Contractor agrees that it maintains in force at its own expense a
liability insurance policy which will insure and indemnify the Municipality and Monroe
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Gas Tax Sharing Interlocal
County from any suits, claims or actions brought by any person or persons and from
all costs and expenses of litigation brought against the Municipality(ies) or the County
for such injuries to persons or damage to property occurring during the agreement or
thereafter that results from performance by Contractor of the obligations set forth in
this agreement. At all times during the term of this agreement and for one year after
acceptance of the project, Contractor shall maintain on file with the Municipality and
the County a certificate of the insurance of the carriers showing that the aforesaid
insurance policy is in effect. The following coverage's shall be provided:
1. Workers Compensation insurance as required by Florida Statutes.
2. Commercial General Liability Insurance with minimum limits of $500,000
per occurrence for bodily injury, personal injury and property damage.
3. Comprehensive Auto Liability Insurance with minimum limits of $300,000
combined single limit per occurrence.
The Municipality and the County shall be named as additional insured. The policies
shall provide no less than 30 days notice of cancellation, non-renewal or reduction of
coverage.
At all times during the term of this agreement and for one year after acceptance of
the project, Contractor shall maintain on file with the Municipality and the County a
certificate of insurance showing that the aforesaid insurance coverage's are in effect.
E. Licensing and Permits. Contractor warrants that it shall have, prior to
commencement of work under this agreement and at all times during said work, all
required licenses and permits whether federal, state, County or City.
F. Right to Audit. The Contractor shall keep such records as are necessary to
document the performance of the agreement and expenses as incurred, and give
access to these records at the request of any municipality which is a party to this
agreement, Monroe County, the State of Florida, or authorized agents and
representatives of said government bodies.
15. HOLD HARMLESS. To the extent allowed by law, each Party is liable for and
must fully defend, release, discharge, indemnify and hold harmless the other parties,
the members of their governing boards, officers and employees, agents and
contractors, from and against any and all claims, demands, causes of action, losses,
costs and expenses of whatever type - including investigation and witness costs and
expenses and attorneys' fees and costs - that arise out of or are attributable to the
operations under this agreement except for those claims, demands, damages,
liabilities, actions, causes of action, losses, costs and expenses that are the result of
the sole negligence or malfeasance of the respective Party. The purChase of the
insurance required under this Agreement does not release or vitiate any Party's
obligations under this paragraph. No Party waives any of its sovereign immunity
rights including but not limited to those expressed in Section 768.28, Florida Statutes.
16. NON-DISCRIMINATION. The Parties, each for itself, its personal
representatives, successors in interest, and assigns, as a part of the consideration
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Gas Tax Sharing Interlocal
hereof, does hereby covenant and agree that no person on the grounds of race, color,
or national origin shall be excluded from participation in, denied the benefits of, or be
otherwise subjected to discrimination in the use of premises or in the contracting for
improvements to the premises.
The Parties agree that there will be no discrimination against any person, and it is
expressly understood that upon a determination by a court of competent jurisdiction
that discrimination has occurred, this Agreement automatically terminates without any
further action on the part of any party, effective the date of the court order. The
Parties agree to comply with all Federal and Florida statutes, and all local ordinances,
as applicable, relating to nondiscrimination. These include but are not limited to: 1)
Title VI of the Civil Rights Act of 1964 (PL 88-352) which prohibits discrimination on
the basis of race, color or national origin; 2) Title IX of the Education Amendment of
1972, as amended (20 USC ss. 1681-1683, and 1685-1686), which prohibits
discrimination on the basis of sex; 3) Section 504 of the Rehabilitation Act of 1973, as
amended (20 USC s. 794), which prohibits discrimination on the basis of handicaps;
4) The Age Discrimination Act of 1975, as amended (42 USC ss. 6101-6107) which
prohibits discrimination on the basis of age; 5) The Drug Abuse Office and Treatment
Act of 1972 (PL 92-255), as amended, relating to nondiscrimination on the basis of
drug abuse; 6) The Comprehensive Alcohol Abuse and Alcoholism Prevention,
Treatment and Rehabilitation Act of 1970 (PL 91-616), as amended, relating to
nondiscrimination on the basis of alcohol abuse or alcoholism; 7) The Public Health
Service Act of 1912, ss. 523 and 527 (42 USC ss. 690dd-3 and 290ee-3), as
amended, relating to confidentiality of alcohol and drug abuse patent records; 8) Title
VIII of the Civil Rights Act of 1968 (42 USC s. et seq.), as amended, relating to
nondiscrimination in the sale, rental or financing of housing; 9) The Americans with
Disabilities Act of 1990 (42 USC s. 1201 Note), as maybe amended from time to time,
relating to nondiscrimination on the basis of disability; 10) Monroe County Code Ch.
13, Art. VI, prohibiting discrimination on the bases of race, color, sex, religion,
disability, national origin, ancestry, sexual orientation, gender identity or expression,
familial status or age; and 11) any other nondiscrimination provisions in any Federal
or state statutes which may apply to the parties to, or the subject matter of, this
Agreement.
17. TERMINATION. The COUNTY may terminate this agreement for cause after
giving to the breaching party at least ninety days written notice of the breach, and
allowing the allegedly breaching party a period of forty-five (45) days within which to
cure said breach. Failure to cure the breach shall be noticed by the COUNTY in writing
and provided to the breaching party at least twenty (20) days prior to the termination
date. Application of the monies received pursuant to this agreement for any purpose
other than those set forth in Section 3 shall be deemed a breach.
18. ASSIGNMENT. No Party may assign this Agreement or assign or subcontract
any of its obligations under this Agreement without the approval of the governing
boards of the other Parties. All the obligations of this Agreement will extend to and
bind the legal representatives, successors and assigns of the all Parties. A municipal
contract for roadwork to be performed, which does not divest the municipality of its
jurisdiction over and ultimate responsibility for maintaining public roads shall not be
considered a sub-contract or assignment prohibited by this provision.
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Gas Tax Sharing Interlocal
19. SUBORDINATION. This Agreement is subordinate to the laws and regulations
of the United States, the State of Florida, and the COUNTY, whether in effect on
commencement of this agreement or adopted after that date.
20. INCONSISTENCY. If any item, condition or obligation of this Agreement is in
conflict with other items in this Agreement, the inconsistencies shall be construed so
as to give meaning to those terms which limit the COUNTY's responsibility and
liability.
21. GOVERNING LAWS/VENUE. This Agreement is governed by the laws of the
State of Florida and the United States. Venue for any dispute arising under this
Agreement must be in Monroe County, Florida. In the event of any litigation, the
prevailing party is entitled to a reasonable attorney's fee and costs.
22. ETHICS CLAUSE. Each municipality warrants that it has not employed,
retained or otherwise had act on its behalf any former County officer or employee
subject to the prohibition of Section 2 of ordinance No. 010-1990 or any County
officer or employee in violation of Section 3 of Ordinance No. 010-1990. For breach or
violation of this provision, the COUNTY may, in its discretion, terminate this
agreement without liability and may also, in its discretion, deduct from the funds due
the municipality, or otherwise recover, the full amount of any fee, commission,
percentage, gift or consideration paid to the former County officer or employee.
23. CONSTRUCTION. This Agreement has been carefully reviewed by the Parties.
Therefore, this Agreement is not to be construed against any party on the basis of
authorship.
24. NOTICES. Notices in this Agreement, unless otherwise specified, must be sent
by certified mail to the following:
COUNTY:
County Administrator
1100 Simonton Street
Key West, FL 33040
ISLAMORADA:
Village Manager
87000 Overseas Highway
Islamorada, Florida
KEY COLONY BEACH:
Thomas D. Wright
City Attorney for Key Colony Beach
9711 Overseas Highway
Marathon, FL 33050
&
City Manager
PO Box 510141
Key Colony Beach, FL 33051
LAYTON:
Thomas D. Wright
City Attorney for Layton
9711 Overseas Highway
Marathon, FL 33050
&
City Manager
PO Box 778
Long Key, FL 33001
MARATHON:
City Manager
10045-55 Overseas Highway
Marathon, Florida 33050
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Gas Tax Sharing Interlocal
25. FULL UNDERSTANDING. This Agreement is the parties' final mutual
understanding regarding the subject matter hereof. It replaces any earlier
agreements or understandings, whether written or oral. This Agreement cannot be
modified or replaced except by another written and signed agreement.
__-A_~~
/~~;,,?"-";,--rN:~TNESS WHEREOF, each party has caused this Agreement to be executed
/f'oyjt-$ QulY: authorized representative.
I/," 'i .,1 ~,.
! (SEA~lc BOARD OF COUNTY COMMISSIONERS
A. TIES.: DANNY L. KOLHAGE, CLERK OF MO~')DF,COm' FLpRII1A. .
By:J2ald{l&vYf~ By: ,{/.t/U. . ~
Deputy tlerk MONROE COUNTY ATTORNEY Mayor/Chairman
PPROVED E:
GE OF ISLANDS
By:
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9