The text
of the proposed agreement is unchanged from that
appearing in the original e-mail attachment sent by the
County. The font, spacing, and margins of the Microsoft
Word document is not reflected in the html document
provided below:
AGREEMENT FOR THE
FUNDING AND CONSTRUCTION OF
WASTEWATER
COLLECTION INFRASTRUCTURE
THIS AGREEMENT is
entered into by Monroe County, a political subdivision of
the State of Florida, ("County"), Hawk's Cay Investors
Ltd., a Florida limited partnership, (" Hawk's Cay"), the
Florida Keys Aqueduct Authority, a Florida independent
special district "(FKAA"), Duck Key Wastewater
Cooperative, Inc., a Florida non-profit corporation,
("Co-op") and Utility Island, LLC, a Florida limited
liability company ("UI").
WHEREAS, Hawk's Cay
owns a central wastewater treatment facility, (the
"Facility"), operated by the Co-op pursuant to a lease,
which furnishes service to the Hawk's Cay Development of
Regional Impact, (the "DRI");
WHEREAS, The
Facility currently has sufficient capacity to provide
wastewater treatment service to Conch Key and Walker Key
and sufficient land to accommodate expansion of the
Facility to provide service to Duck Key, in all cases if
the infrastructure is built to connect those Keys to the
Facility (Conch Key, Walker Key, Duck Key and portions of
the Indies Island which are not within the DRI are
referred to herein as the "New Service Area");
WHEREAS, County
desires to assist in funding the construction of the
needed collection and treatment infrastructure to connect
the New Service Area to the Facility, to improve the
Facility to meet the advanced wastewater treatment
standard (as defined by Florida Department of
Environmental Protection) and to expand the Facility to
service Duck Key (all of which work is collectively
referred to herein as the "Project");
WHEREAS, FKAA, by
virtue of its enabling legislation, has jurisdiction over
central wastewater treatment facilities and their related
infrastructure in the unincorporated area of the County;
WHEREAS, UI is
simultaneously entering into a contract with Co-op for
the design and construction of the Project;
WHEREAS, FKAA
desires to approve an agreement among County, Co-op and
Hawk's Cay for the Project and also desires to retain a
funding pass through role in such an
agreement.
NOW, THEREFORE, in
consideration of the mutual promises, benefits, and
covenants set forth below, the parties agree as
follows:
1. Definitions and
Basic Terms.
a) Hawk's Cay
Development of Regional Impact Amendment ("DRI
Amendment"), means the amendment to the DRI set forth in
Exhibit A. Exhibit A is attached to this agreement and
made a part of it.
b) Equivalent
Dwelling Unit ("EDU"), is a standard unit of wastewater
consumption. The total number of EDUs within the DRI and
the New Service Area is listed on Exhibit B, attached and
made a part of this Agreement. In no event shall a single
family home be allocated more than one (1) EDU per
single-family lot, nor shall the property presently owned
by Hawks' Cay be allocated more than one hundred eighty
(180) EDU's (the maximum number of EDUs corresponding to
the development potential of that property).
c) All design,
permitting and construction costs referred to in this
Agreement will be increased in a percentage equal to the
amount of the increase in the CPI (U.S. city average, all
items). The CPI increases will become applicable starting
on the one-year anniversary of the effective date of this
Agreement and on each anniversary thereafter.
d) Co-op may assign
its duties under this Agreement to other entities but
such assignment will not relieve Co-op of its obligation
to carry out any and all of the duties
assigned.
2. Operation of
Facility.
a) Co-op agrees
that during the term of this Agreement it will, at all
times, reserve sufficient capacity to serve the present
wastewater treatment demands of Conch Key and Walker Key
and will accept and treat all wastewater generated at
Conch Key and Walker Key and, when the Facility is
expanded, all of the New Service Area. Such wastewater
shall be delivered to the Facility through the wastewater
collection infrastructure provided for in this Agreement.
During the term of this Agreement, Co-op agrees to
operate and maintain the Facility in compliance with all
applicable state, federal and local laws, regulations and
ordinances.
b) Upon completion
of the Project, Co-op's board will reconstitute itself
with two additional members not associated with Hawk's
Cay Investors, one of whom shall be elected from the
Class A members owning property on Duck Key, and the
other of whom shall be elected from the Class A and B
members owning property on Conch Key, Walker Key and
Indies Island. Three (3) years after the completion of
the Project, Hawk's Cay's entitlement to elect a majority
of Co-op's Board of Directors shall cease,
whereupon two Co-op
board members shall be elected from the Class A members
owning property on Duck Key and two shall be elected from
the Class A and B members owning property on Conch Key,
Walker Key, and Indies Island, and one shall be appointed
by Hawk's Cay Investors.
c) Within 42 months
of the effective date of this Agreement or at such sooner
time as the Facility is expanded to serve Duck Key, Co-op
agrees that it will cause the entire Facility to be
upgraded to meet the advanced wastewater treatment
standard (as described above).
3. Term. The term
of this Agreement is 30 years beginning on the effective
date described below, unless terminated sooner as
provided for in this Agreement.
4. Project Timing.
The parties agree that the design, permitting and
construction of the wastewater collection infrastructure
for the New Service Area, to the extent not already
performed by FKAA, and the expansion of the Facility and
the upgrade of the Facility to the advanced wastewater
treatment standard, is the responsibility of Co-op. The
design, permitting and construction schedule for the
foregoing is as follows:
(i) Within 6 months
of the effective date of this Agreement, all aspects of
the Conch Key and Walker Key wastewater collection
infrastructure must be designed and permitted;
(ii) Within 18
months of the effective date of this Agreement, the Conch
Key and Walker Key wastewater collection infrastructure
will be completed and on line providing collection and
treatment service to Conch Key and Walker Key;
(iii) Within 9
months of the effective date of this Agreement, all
aspects of the Duck Key wastewater collection
infrastructure will be designed and permitted;
(iv) Within 42
months of the effective date of this Agreement, the Duck
Key wastewater collection infrastructure will be
completed and on line, providing collection and treatment
service to Duck Key;
(v) Within 42
months of the effective date of this Agreement, but in no
event later than the completion date of the Duck Key
wastewater collection infrastructure, the Facility
expansion will be complete and the Facility upgrade to
meet the advanced wastewater treatment standard will be
complete.
The above
completion schedule shall be extended if delayed by the
permit approval process, delays in County's acquisition
of a parcel as contemplated in Paragraph 7 (a) below,
legal challenges, disputes (including litigation with
contractors employed to construct the collection
infrastructure or Facility expansion or upgrade), acts of
God, or lack of timely funding from government
agencies.
5. Project Funding.
a) County agrees to
reimburse Co-op for the cost, in an amount not to exceed
$683,954.00, of designing and permitting the Project. The
infrastructure includes, (by way of illustration and not
limitation) pipes, pumps and lift and vacuum stations,
but excluding the laterals located on private property
needed to connect wastewater generating properties to the
main wastewater collection lines. The individual property
owners are responsible for the installation of laterals
when notified by Co-op of service availability. In order
to receive payment for the design costs, Co-op must
submit an invoice to the County Engineer, in a form
satisfactory to the Engineer and the County Clerk that
provides documentary evidence of the costs incurred by
Co-op in designing the wastewater collection
infrastructure. Travel costs are reimbursable only in the
amounts set forth in Sec. 112.061, FS. County shall pay
the amount requested in the invoice, as long as it does
not cause the total amount paid under this subparagraph
to exceed $683,954.00.
b) County agrees to
reimburse Co-op for the construction of the Project, on a
progress payment basis, according to a schedule of values
to be submitted by UI and approved by the County
Engineer. The parties agree that the payment will not
exceed $10,023,253.00 (approximately $6,809 per EDU as
calculated in Exhibit B). In order to fund the
reimbursement, County agrees that it will hold a public
hearing to create, pursuant to Sec. 125.01(1), FS, and
prior to the commencement of the Project, a municipal
service benefit unit (the "MSBU") for the DRI and the New
Service Area. While the MSBU will have the power to
utilize grant funds and other funds from any lawfully
available source, the only power the MSBU will have to
assess property owners within the MSBU for the capital
costs of building the Project is the power to levy non-ad
valorem assessments pursuant to Sec. 197.3632, FS, or its
successor statute, and to pledge those assessments for
the issuance of bonds, the proceeds of which may be used
to reimburse Co-op for the permitting and construction
set forth in this Agreement. The parties understand that
the MSBU cannot levy that non-ad valorem capital cost
assessment until fiscal year 2003-2004. The MSBU may
pledge the non-ad valorem assessment revenue, as well as
any other grant funds or other lawfully available non-ad
valorem revenue, as payment on bonds issued by the MSBU
for the reimbursement to Co-op for its costs incurred in
the design, permitting and construction of the Project.
The MSBU may not, under any circumstances, be required to
levy ad valorem taxes. No ad valorem revenue from the
County, even if lawfully available to the MSBU, may be
pledged for the payment and redemption of any MSBU bonds
or other MSBU debt, however denominated. The County does
not, by its approval of this Agreement, waive its
legislative discretion with respect to the decisions
whether to create the MSBU and whether to levy a non-ad
valorem assessment in an amount that suffices to fully
fund the Project. However, should the MSBU not be
created, or should the MSBU decline to levy a capital
cost assessment sufficient to fund the Project, then this
Agreement will terminate with the County under no
liability or obligation to pay any damages or claims to
any party to this Agreement, or to any third parties who
may have relied on this Agreement, except for the
County's obligation to pay unreimbursed design and
permitting costs incurred by the Co-op. Notwithstanding
any other provision of this Agreement, Co-op and UI shall
be under no obligation to proceed with construction of
the Project until receipt of County's written notice to
proceed, which notice may not be issued until the County
has created the MSBU and the MSBU has levied a capital
cost assessment sufficient to fund the
Project.
c) County also
agrees that the MSBU will, separate from the capital
assessment referenced above, assess an annual service
fee, determined as provided by law, and will collect same
through the non-ad valorem assessment method, for
operation and maintenance costs, including reserves, of
the wastewater collection infrastructure and the
Facility. The parties estimate the initial amount of that
operating cost assessment to be $20.00 per EDU. This
recitation shall not be construed to preclude the use of
other methods for charging and collecting operating and
maintenance costs, should the use of an alternative to
the flat-fee assessment be required by law. The capital
assessment and service fee assessment will be levied
separately, with separate ordinances or resolutions
authorizing each and with all statutorily required public
notices clearly indicating that they are two distinct
non-ad valorem assessments.
d) Vacant,
buildable lots within Duck Key, Indies Island, Conch Key,
the DRI, and Walker Key, will be subject to the capital
cost non-ad valorem assessment, but not the operations
and maintenance assessment until a certificate of
occupancy is issued for a structure thereon.
Notwithstanding the foregoing, the operational and
maintenance non-ad valorem assessment may be increased
(or decreased) to match the costs of operating and
maintaining the Facility and wastewater collection
infrastructure.
6. FKAA
Authorization.
a) FKAA consents to
the funding, design, construction, operation and
ownership of the Facility and Project as set forth in
this Agreement. FKAA further consents to the expansion,
upgrade and ownership of the Facility as set forth in
this Agreement. FKAA agrees to cooperate in the
construction to the Project and the Facility upgrade to
meet the advanced wastewater treatment
standard.
b) County agrees to
reimburse FKAA for any costs incurred by FKAA prior to
the effective date of this Agreement in designing or
permitting the Project contemplated by this Agreement in
an amount not to exceed $_________. Co-op, UI and County
further agree that FKAA must be reimbursed for any work
done after the effective date of this Agreement by its
employees or contractors in assisting County or UI in
designing, permitting and constructing the
Project.
c) FKAA agrees to
grant County and Co-op a perpetual easement(s), for $10
per year, for the use of FKAA's right-of-way and adjacent
real property as depicted in Exhibit C for use for the
wastewater collection infrastructure contemplated by this
Agreement and to use for wastewater collection the
existing but discontinued pipe also shown on Exhibit C.
The easement(s) will automatically lapse and be of no
further force and effect if the property subject to the
easement ceases to be used for the purposes authorized by
this Agreement. Exhibit C is attached to this Agreement
and made a part of it.
d) FKAA agrees to
assist County in obtaining and keeping available grant
funds for the Project. The parties agree, however, that
the funding agency, in consultation with FKAA and County,
has the authority to determine if the costs incurred by
Co-op are eligible for reimbursement from any available
grant funds, the amount thereof, the manner of payment,
and any record keeping and audit requirements.
7. County
Authorization.
a) County agrees to
authorize and permit the construction, maintenance and
operation of the Project on the County owned property in
the New Service Area depicted on Exhibit D. Exhibit D is
attached to this Agreement and made a part of it.
County's authorization and permission set forth in this
subparagraph continues for as long as the County owned
property is used for wastewater collection
infrastructure. County agrees to acquire one parcel on
Conch Key, up to four parcels on Duck Key and one parcel
on Walker Key for lift stations at no cost to Co-op. The
parcels are also depicted on Exhibit D. The County will
own the lines and equipment on such parcels and County
will grant Co-op an easement for same.
b) After the
installation of the pipes and any other subterranean
infrastructure under the streets within a County
right-of-way, County will promptly repave the
streets.
8. Construction
Documents. On the effective date of this Agreement, Co-op
will provide County with its contract with UI for the
design, permitting, and construction of the Project. The
contract must contain firm prices for all tasks required.
The sum of (i) the total contract price and (ii) FKAA
reimbursement costs provided for elsewhere in this
Agreement, less (iii) grant proceeds paid for project
costs, is the amount that the MSBU must raise through the
sale of bonds and the pledge of non-ad valorem revenue.
The total amount due from County as funding under this
Agreement shall not exceed $10,707,207. Any cost over-run
(amounts owed the contractor(s) in excess of the contract
price) is the responsibility of UI except to the extent
attributable to delays caused by County or MSBU. UI shall
provide payment and performance bonds in the full amount
of the contract, naming County and Co-op as dual
obligees.
9. Funding and
Records.
a) County shall
notify Co-op when reimbursement funds are available, and
Co-op shall cause UI to begin the permitting and
construction within 45 days of date of notification. All
requests for payment must be delivered to the County
Engineer, be in a form satisfactory to the County Clerk,
and if required by bond covenants or requested by the
County Attorney, also approved by the County's bond
counsel, the bond trustee or other representative of the
bondholders, and be approved by the County Engineer. The
County will make payments within 20 days of the County
Engineer's receipt of the request, unless any of the
persons just enumerated determines that additional
information needed or that a correction must be made. In
that case, the request will be returned with a written
explanation of the additional Information needed or the
needed correction
b) Co-op shall keep
all its financial records pertaining to the Project
contemplated by this Agreement according to generally
accepted accounting principles. Co-op shall make those
records available upon request to auditors employed by
the Clerk, County, FKAA, or any agency supplying grant
funds. If an audit exception is found requiring
repayment, Co-op shall promptly make such repayment with
interest accruing at the rate set forth in Sec. 55.04,
FS, accruing from the date the event triggering the audit
exception occurred, unless the remedy of an agency
supplying grant funds requires a different
result.
10. Ownership.
a) The parties
agree that, during the term of this Agreement, all
wastewater collection and treatment infrastructure built
pursuant to this Agreement shall be owned by the County,
upon completion of the Project. Any real property
acquired by County for lift stations, pumps, or
rights-of-way, will be and remain the property of County.
The parties further agree that the County will, upon
completion of the Project, enter into a management
agreement with the Co-op, whereby the Co-op will operate
and maintain the system at cost. The provisions of the
management agreement shall conform to all requirements
imposed by tax law to assure that the bonds issued to
finance construction of the Project retain tax-exempt
status.
b) Hawk's Cay
agrees to transfer ownership of the Facility and land
sufficient for the Facility upgrade and expansion to the
Co-op, as depicted on Exhibit G, when the MSBU has been
established and a Notice of Commencement for the
expansion of the Facility is required per Chapter 713,
FS. Hawk's Cay shall provide Co-op with an owner's policy
of title insurance showing that the conveyance of the
Facility is not subject to the claims of any creditors of
Hawk's Cay.
c) County will
retain ownership of its right-of-way and real property
owned by the County on Conch Key, Walker Key, Indies
Island, and Duck Key. County shall grant Co-op a license
to use the right-of-way and County real property not
specifically acquired for wastewater infrastructure for
as long as the right-of-way and real property are used by
Co-op for wastewater collection infrastructure. However,
after the initial completion of the infrastructure, any
new construction or expansion of the infrastructure on
County owned property, or within any County right-of-way,
must be approved by the County Administrator and County
Engineer. This subparagraph will survive the expiration
of this Agreement.
11. Co-op
Responsibilities. Until completion of the Project, Co-op
shall be responsible for the construction and maintenance
of the wastewater collection infrastructure and the
Facility. UI will construct the Project in compliance
with the laws, rules and orders of all governmental
agencies having jurisdiction over the Facility and
wastewater collection infrastructure. Any fines,
penalties, or order(s) to make corrections/improvements
to the Facility and infrastructure, incurred prior to the
time that the Project is turned over to the Co-op by UI
in accordance with the provisions of their contract,
shall be at the sole cost and obligation of UI and UI
agrees to indemnify and hold harmless County from any and
all such fines, penalties and order(s), including
reasonable fair market value attorney's fees, and costs
(including expert fees) incurred by the County in
defending against any penalties, fines or orders arising
out of the construction, operation or maintenance of the
wastewater infrastructure.
12. Insurance.
During the wastewater collection infrastructure
construction phase, Co-op and UI will each keep in full
force and affect the insurance required in Exhibit E-1.
Once a portion or portions of the infrastructure becomes
operational Co-op must keep in full force and affect the
insurance required in Exhibit E-2. For a period of six
months beginning every five years measured from the date
the first portion of the infrastructure becomes
operational, the County's Risk Management Director (or
successor official) may require a modification of the
insurance requirements, if, in her opinion, the insurance
requirements of the preceding five years leave County,
FKAA or Co-op exposed to an unacceptable level of
liability risk. When the construction of the
infrastructure is complete, the Director of Risk
Management may release Co-op and/or UI from all, or a
portion of, the requirements of Exhibit E-1. Exhibits E-1
and E-2 are incorporated into this Agreement and made a
part of it.
13.
Indemnification. Notwithstanding the insurance required
above, Co-op and UI agree to indemnify and hold harmless
the County and FKAA for claims, demands, causes of
action, losses, damages and liabilities that arise out of
the negligent act(s) or omission(s) of any Co-op or UI
officer, employee, contractor (including subcontractors
employed by UI or any other Co-op contractor) and agents
in connection with the maintenance, construction and
operation of the Facility and wastewater collection
infrastructure, including those acts or omissions that
result in environmental damage or pollution.
14. Re-Use Water.
Simultaneously with the execution hereof, Co-op and
Hawk's Cay shall enter into the Re-Use Water Agreement in
the form shown as Exhibit F. Exhibit F is attached to
this Agreement and made a part of it.
15. Notices. All
notices, demands, requests or other communications by any
party under this Agreement shall be in writing and sent
by (a) first class U.S. certified or registered mail,
return receipt requested, with postage prepaid, or (b)
overnight delivery service or courier, or (c)
telefacsimile or similar facsimile transmission with
receipt confirmed as follows:
If to Co-op: Duck
Key Wastewater Cooperative
61 Hawk's Cay
Blvd.
Duck Key, FL
33050
If to Hawk's Cay:
Hawk's Cay Investors, Ltd.
61 Hawk's Cay
Blvd.
Duck Key, FL
33050
If to UI: Utility
Island, LLC
c/o Toppino's
Inc.
P.O. Box
787
Key West, FL
33041
If to FKAA: Florida
Keys Aqueduct Authority
1100
Kennedy
Key West, FL
33040
If to County:
Monroe County
Gato
Building
1100 Simonton
Street
Key West, FL
33040
16. Governing Law.
This Agreement is governed by the laws of the State of
Florida. Venue for any litigation under this Agreement
must be in a court of competent jurisdiction in Monroe
County, Florida, unless otherwise required by a
governmental agency other than County or FKAA. In the
event of litigation, the prevailing party is entitled to
a reasonable market value attorney's fee plus costs from
the non-prevailing party.
17. Entire
Agreement. This written Agreement constitutes the entire
agreement among the parties and supersedes any prior
writings or oral representations made amongst the
parties. This Agreement may not be modified except in a
writing signed by all parties.
18. Binding Effect.
This Agreement shall be binding on the parties' heirs,
successors, and assigns, in the same manner as this
Agreement binds the original parties.
19. No Third Party
Beneficiaries. This Agreement shall not be deemed to
confer in favor of any third parties any rights
whatsoever as third party beneficiaries. The parties to
this Agreement intend that the provisions of this
Agreement confer no such benefits or standard.
20. No Conflict.
Co-op and UI Investors warrant that neither had employed,
retained or otherwise had act on Its behalf any former
County officer or employee subject to the prohibitions of
Section 2 of Ordinance No. 010-1990 or any County officer
or employee in violation of Section 3 of Ordinance No.
020-1990. For breach or violation of this provision the
County may, in its discretion, terminate this contract
without liability and may also, in its discretion, deduct
from the contract or purchase price, or otherwise recover
the full amount of any fee, commission, percentage, gift,
or consideration paid to the former County officer or
employee.
21. Development
Order Compliance. County recognizes and agrees that this
Agreement is in substitution for the previous obligation
of Hawk's Cay, as set forth in the Development Order for
the DRI, to convey the Facility to County.
22. Effective Date.
This Agreement must be signed by all parties in order to
be binding but will not take effect until the DRI
amendment becomes effective. It is further agreed that no
building permits may be issued for Hawk's Cay hotel units
until UI delivers the bonds provided for in Section 8 of
this Agreement.
IN WITNESS WHEREOF,
the parties hereto have executed this Agreement as of the
day and year below written.
(SEAL)
Attest: DANNY L.
KOLHAGE, Clerk
By
_____________________________
Deputy
Clerk
Date
___________________
BOARD OF COUNTY
COMMISSIONERS
OF MONROE COUNTY,
FLORIDA
By
__________________________________
Mayor /
Chairman
Date
_____________________
(SEAL)
Attest:
By
_____________________________
Secretary
Date
___________________
HAWK'S CAY
INVESTORS, LIMITED, a Florida limited
partnership
By: Hawk's Cay
Management, Inc., a Florida corporation, general
partner
By
_________________________________
President
Date
_____________________
(SEAL)
Attest:
By___________________________
Secretary
Date
_____________________
(SEAL)
Attest:
By
_____________________________
Secretary
Date
___________________
UTILITY ISLAND,
LLC
By:______________________________
Managing
Member
FLORIDA KEYS
AQUEDUCT AUTHORITY
By
________________________________
Chairman
Date
____________________
(SEAL)
Attest:
By
_____________________________
Secretary
Date
___________________
DUCK KEY WASTEWATER
COOPERATIVE, INC.
By
______________________________
President
Date
____________________
02/07/02janPS3
2/4/02
