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Agenda 09/11/2018 Item #16C1109/11/2018 EXECUTIVE SUMMARY Recommendation to provide technical assistance to Everglades City as the City’s consultant regarding management of the Everglades City Utility System in accordance with the Technical Assistance Interlocal Agreement between the County, the Collier County Water-Sewer District, and the City of Everglades City as approved by the Board of County Commissioners on December 12, 2017, agenda item 11E. and approve all necessary budget amendments. OBJECTIVE: To provide services to the City of Everglades City (the “City”) as City’s consultant regarding the management of the utility system. CONSIDERATIONS: At the December 12, 2017 Board of County Commissioners (“Board”) meeting, as Agenda Item 11E, the Board approved a Technical Assistance Interlocal Agreement (“Interlocal”) between the Collier County Water-Sewer District (“CCWSD”), Collier County (the “County”) and the City. The Interlocal is attached hereto as Attachment No. 1. After discussions with the Mayor and the City’s attorney, staff is agreeable to provide such technical assistance as requested (see Attachment No. 2). These include: Contract Administration Capital Improvement Planning Grant acquisition and management Concurrently, the City has completed a water rate study that identified rates necessary to provide adequate and sustainable revenues to support ongoing operations and maintenance of the water utility system. City Council approved those rates at their September 4, 2018 meeting. A wastewater rate study will be conducted once a capital improvement plan has been determined. Other state and federal grants will be necessary to provide funding for design and construction of a new wastewater system. FISCAL IMPACT: The Technical Assistance expenditures by the City are subject to the availability of the City’s funds. County will provide up to $300,000 for FY19 from General Fund (001) appropriations to provide requested technical support services including all applicable grant applications, contract management and administration, and development of short and long-term action plan for funding and execution. Given the uncertainties, any potential additional funding needs will be brought before the Board at a future meeting date. GROWTH MANAGEMENT IMPACT: There is no Growth Management Impact associated with this action. LEGAL CONSIDERATIONS: This item has been reviewed by the County Attorney, is approved as to form and legality, and requires majority vote for approval. -JAK RECOMMENDATION: That the Board, (1) authorizes staff to provide technical assistance requested by the City in accordance with the Interlocal; (2) approves General Fund (001) supplemental funding of up to $300,000 for FY19 and authorizes all budget amendments and financial transactions, as set forth in the Fiscal Impact Section, and (3) authorizes the City’s ability to piggyback on County contracts and County’s ability to piggyback on City’s contracts as needed. Prepared by: Joe Bellone, Director, Financial and Operations Support Division George Yilmaz, Public Utilities Department Head 16.C.11 Packet Pg. 1000 09/11/2018 ATTACHMENT(S) 1. Technical Assistance Interlocal Agreement - 12-12-2017 - Item 11E - Executed (PDF) 2. Technical Assistance Request (PDF) 16.C.11 Packet Pg. 1001 09/11/2018 COLLIER COUNTY Board of County Commissioners Item Number: 16.C.11 Doc ID: 6594 Item Summary: Recommendation to provide technical assistance to Everglades City as the City’s consultant regarding management of the Everglades City Utility System in accordance with the Technical Assistance Interlocal Agreement between the County, the Collier County Water-Sewer District, and the City of Everglades City as approved by the Board of County Commissioners on December 12, 2017, agenda item 11E. Meeting Date: 09/11/2018 Prepared by: Title: – Solid and Hazardous Waste Name: Sarah Hamilton 08/31/2018 3:08 PM Submitted by: Title: Department Head - Public Utilities – Public Utilities Department Name: George Yilmaz 08/31/2018 3:08 PM Approved By: Review: Procurement Services Opal Vann Additional Reviewer Completed 08/31/2018 3:19 PM Public Utilities Operations Support Joseph Bellone Additional Reviewer Completed 08/31/2018 3:44 PM Procurement Services Sarah Hamilton Additional Reviewer Skipped 09/04/2018 9:17 AM Public Utilities Department Sarah Hamilton Level 1 Division Reviewer Completed 09/04/2018 9:38 AM Public Utilities Department George Yilmaz Level 2 Division Administrator Review Completed 09/04/2018 9:35 AM Office of Management and Budget Valerie Fleming Level 3 OMB Gatekeeper Review Completed 09/04/2018 9:49 AM County Attorney's Office Jeffrey A. Klatzkow Level 3 County Attorney's Office Review Completed 09/05/2018 7:45 AM Budget and Management Office Ed Finn Additional Reviewer Completed 09/05/2018 9:34 AM Budget and Management Office Mark Isackson Additional Reviewer Completed 09/05/2018 9:48 AM County Manager's Office Nick Casalanguida Level 4 County Manager Review Completed 09/05/2018 11:15 AM Board of County Commissioners MaryJo Brock Meeting Pending 09/11/2018 9:00 AM 16.C.11 Packet Pg. 1002 1 1 E TECHNICAL ASSISTANCE I NTE R LOCAL AGREEMENT BY AND BETWEEN THE CITY OF EVERGLADES CITY, THE COLLIER COUNTY WATER-SEWER DISTRICT, AND COLLIER COUNTY This Technical Assistance Interlocal Agreement (this "Agreement") is entered into these 5th and 12th days of December, 2017, by and between The City of Everglades City, a Florida Municipality ("City"), the Collier County Water-Sewer District, an independent special district formed under the laws of the State of Florida ("District"); and Collier County, a political subdivision of the State of Florida ("County"). RECITALS WHEREAS, City currently owns a water and wastewater utility system for the residents of City (the "System"). The System consists solely of those facilities, assets, inventories, and interests including, without limitation, property commonly known as the Everglades City Water and Wastewater Utility System, including a wastewater treatment plant located at 401 S. Copeland Avenue in Everglades City, Florida ("Wastewater Facility") and a potable water/drinking water facility located at 15414 Janes Scenic Drive in Copeland, Florida ("Potable Water Facility"), as well as appurtenant pipes and equipment, utility easements of record and real and personal property used for the System; and WHEREAS, City currently contracts with Veolia Water North America — South, LLC, VWNA") to operate the System; WHEREAS, City is a party to a consent order, OGC File No. 13-0853-11-DW, ("Consent Order") issued by the Florida Department of Environmental Protection ("FDEP") concerning the operation of the System and its non-compliance with various environmental rules and other requirements of FDEP; WHEREAS, City is currently the subject of an enforcement action brought by FDEP in the Circuit Court in and for Collier County, Case No. 15-CA-2134, to enforce the terms of the Consent Order and applicable rules and requirements of FDEP ( the "Enforcement Action"); WHEREAS, on September 10, 2017, Hurricane Irma made landfall in City causing damage to City and to the System; WHEREAS, City does not have the financial ability to cure the corrective actions sought to be cured in the Enforcement Action, while at the same time maintaining the System, and engaging in a recovery effort post-Hurricane Irma; Page 1 of 10 16.C.11.a Packet Pg. 1003 Attachment: Technical Assistance Interlocal Agreement - 12-12-2017 - Item 11E - Executed (6594 : Provide Technical Assistance Requested by 1 1 E WHEREAS, City has asked County if both the District and the County would be willing to provide technical assistance, and assistance in securing funding for operating the System and performing improvements thereto, and if the District and the County would standby as a potential backup operator of the System, if the operations agreement with VWNA is prematurely terminated for any reason; WHEREAS, District and County would be willing to provide technical assistance, funding assistance, and backup operation assistance on the terms and conditions set forth below; WHEREAS, section 5(8) of chapter 2003-353, Laws of Florida, expressly provides District with the power "No contract with other private or public entities . . . to operate the water or sewer system of such entity or person"; WHEREAS, the parties understand that, in entering this Agreement, District and County do not agree to and are not obligated to undertake or to fund either the continued operation of the System or any capital improvements to the System necessary to ensure compliance with applicable rules, permits, orders, or other requirements of FDEP, the U.S. Environmental Protection Agency, or any other governmental agency; WHEREAS, it is the intent of the parties that the primary purpose of this Agreement is for the District and the County, at City's request, to provide technical assistance, fund securing assistance, and potentially temporary operations assistance for the System; that during the course of this Agreement all parties shall seek funding to help pay for the corrective actions sought to be cured in the Enforcement Action, the operation of the System, and to otherwise upgrade the System; WHEREAS, it is the further intent of all of the parties that City remains solely responsible for compliance with applicable rules, permits, orders, and other environmental requirements of FDEP and other governmental agencies, notwithstanding the District's and the County's agreement to temporarily serve as City's technical consultant for the System; and WHEREAS, the parties understand City remains solely responsible for compliance with applicable rules, permits, orders, and other environmental requirements of FDEP and other governmental agencies, notwithstanding the District's agreement to potentially and temporarily serve as the City's agent for the operation of the System, and that the District's rate payers should not be asked, and cannot be asked, to subsidize the water and wastewater utility system for the residents of City. NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties agree as follows: Page 2 of 10 16.C.11.a Packet Pg. 1004 Attachment: Technical Assistance Interlocal Agreement - 12-12-2017 - Item 11E - Executed (6594 : Provide Technical Assistance Requested by 1 1 E AGREEMENT 1. Recitals. The parties acknowledge that all of the Recitals set forth above are true and correct and are hereby expressly incorporated and made a part of this Agreement. 2. Effective Date. The "Effective Date" of this Agreement shall be December 13, 2017. 3. Services. City hereby retains District and County to provide, and District and County hereby are retained to provide Services (as defined below) to City as City's consultant regarding the management of the System, subject to all of the terms, conditions, and provisions of this Agreement, and potentially as the City's temporary operator, subject to all terms, conditions, and provisions of this Agreement. As used in this Agreement,the term "Services" shall include: a) Technical Assistance. As of the Effective Date, District and County will provide technical assistance to City as requested by City in writing in the form of Technical Assistance Requests(hereinafter defined), per the procedure in Section 3.(a)(i),to assist the City in managing the System. Technical assistance includes anything related to managing the System and District and County shall make available their contractors, including engineers, to provide the technical assistance. Additionally, technical assistance includes providing recommendations to City as well as working with City to apply for grants, loans, and funding of any type for the System. i) "Technical Assistance Requests". City shall prepare each Technical Assistance Request and in each Technical Assistance Request include a description of the desired technical assistance and the time period of the assistance, and shall be emailed to the Collier County Department Head of Public Utilities, Dr. George Yilmaz, GeorgeYilmaz@colliergov.net. b) Operations and Routine Maintenance. If City's operation agreement with VWNA, attached as Exhibit A, prematurely terminates for any reason, following written notice by the mayor of City, District shall then become the City's temporary emergency operator for a period not to exceed 3 months with an optional extension of an additional 3 months, if both parties agree in writing to the extension (the "Operations Period"). Notwithstanding the foregoing the Operations Period will not extend beyond the term of this agreement. As City's temporary emergency operator, District will (1) utilize the State and/or Federal and/or other funds consistent with the terms and conditions of the grants; and (2) conduct and initiate towards earliest completion reasonable and prudent capital improvements and maintenance operations of the System, provided written consent from mayor of City, to ensure its reliable and efficient, continued operation, and to prevent the deterioration or degradation of the System to the extent reasonably practical in light of funds received from the collection of rates, user fees, and other charges or directly from City. Outside of the requirements for the State and/or Federal and/or other funding, District is not obligated to undertake or to fund any improvements to the System necessary to ensure continued operation or compliance with applicable environmental rules or requirements. Page 3 of 10 16.C.11.a Packet Pg. 1005 Attachment: Technical Assistance Interlocal Agreement - 12-12-2017 - Item 11E - Executed (6594 : Provide Technical Assistance Requested by 1 1 E 4. District and County Compensation for Technical Assistance. Quarterly, County will provide the City with a detailed invoice outlining all actual costs incurred by District and County, including staff time, starting from the commencement of this Agreement. The City will repay the County, without interest, if and when the City is able to do so. There is no deadline on when payments must begin. 5. District and County Compensation as Operator. The District will be compensated by City for District's full cost in operating the System, including personnel, contractors, consultant's, and equipment, on a monthly basis to cover general administrative costs. Capital improvements will be reimbursed by the City but only if approved in advance by the City in writing. District shall provide City with an accounting of these costs on a monthly basis. City shall remain responsible for all costs and expenses associated with operation of the System. District shall have no obligation to expend any of its own funds to ensure continued operation under this Agreement. 6. Term and Option to Terminate for Convenience. Except as provided below, the term of this Agreement shall commence upon the Effective Date of this Agreement and shall expire on November 30, 2018. Thereafter, this Agreement will automatically extend for 1 year each year, unless either party gives the other 30 days' written notice to the contrary, in which case this Agreement shall terminate. At any time during the term of this Agreement, either City or District may terminate this Agreement for convenience and without cause, upon giving 30 days' written notice to the other party. Any obligations of either party accruing during the term of this Agreement shall survive such termination. 7. Condition of Facilities and Equipment Remain City's Responsibility. District shall not be held responsible for the condition of the System during the term of this Agreement or upon expiration of this Agreement, and shall have no responsibility to replace property or equipment, except as may result from the District's failure to complete ordinary and reasonable maintenance, or to operate the System in compliance with the standards of the industry. 8. Compliance with Laws, Ordinances, Regulations, Permits, and Orders. City shall remain solely responsible for obtaining and maintaining compliance with all State, Federal, and local permits and licenses required for ownership,operation and maintenance of the System, including without limitation, City's FDEP permit and associated consent order(s). District shall notify City and all State and Federal agencies, as required by law, of any noncompliance issues discovered during the technical assistance period and as the Agent. 9. Indemnification. To the extent authorized and permitted by law and without waiver of the right of City to claim immunity under section 768.28, Florida Statutes, and without extending or altering the City's liability beyond the limits established in Section 768.28, Florida Statutes, City shall indemnify, reimburse, defend, and hold harmless the District, and each of its directors, officers, and employees, as well as the Collier County Board of Commissioners, each of the Commissioners,the Collier County Manager, all of the employees of Collier County and the Collier County Public Utilities Department(collectively,the "Indemnified Parties"),for,from, and against all demands, claims, actions or causes of action, assessments, losses, damages, liabilities, costs Page 4 of 10 16.C.11.a Packet Pg. 1006 Attachment: Technical Assistance Interlocal Agreement - 12-12-2017 - Item 11E - Executed (6594 : Provide Technical Assistance Requested by 1 1 E and expenses (including, without limitation, interest, penalties, reasonable attorneys' fees, disbursements and expenses, and reasonable consultants' fees, disbursements and expenses but excluding internal overhead, administrative, lost opportunity and similar costs), asserted against, resulting to, imposed on, or incurred by any Indemnified Party, directly or indirectly, in connection with any claim asserted by the FDEP, U.S. Environmental Protection Agency, or any third party involving pollution or threat to human health or the environment that is related in any way to the City's management, use, control, ownership or operation of the System whether occurring, existing or arising prior to or after the Effective Date of this Agreement (except to the extent same are directly and solely caused by the negligence or willful misconduct of any Indemnified Party). 10. Representations and Warranties of City. City represents and warrants that: a) City is validly organized and exists as a municipality in the State of Florida, and has full power and authority to carry on its business as presently conducted and as contemplated in this Agreement. b) City has full power and authority to execute and perform the terms and provisions of this Agreement. The execution and performance of the terms and provisions of this Agreement does not violate any applicable provision of the City charter or other authorizing law, the City's ordinances,or state or federal laws or regulations,or other agreements or rules by which the City may be bound. c) This Agreement has been duly executed and delivered by the City and constitutes its legal, valid, and binding obligation enforceable in accordance with its terms. 11. Representations and Warranties of District. District represents and warrants that: a) District is validly organized and exists as an independent special district in the State of Florida and has full power and authority to carry on its business as presently conducted and as contemplated in this Agreement. b) District has full power and authority to execute and perform the terms and provisions of this Agreement. The execution and performance of the terms and provisions of this Agreement does not violate any applicable provision of law creating or authorizing the District, any bylaws of the District, or any state or federal regulations, or other agreements or rules by which the District may be bound. c) This Agreement has been duly executed and delivered by the District and constitutes its legal, valid and binding obligation enforceable in accordance with its terms. 12. Representations and Warranties of County. County represents and warrants that: Page 5 of 10 16.C.11.a Packet Pg. 1007 Attachment: Technical Assistance Interlocal Agreement - 12-12-2017 - Item 11E - Executed (6594 : Provide Technical Assistance Requested by 1 1 E a) County is validly organized and exists as a county in the State of Florida and has full power and authority to carry on its business as presently conducted and as contemplated in this Agreement. b) County has full power and authority to execute and perform the terms and provisions of this Agreement. The execution and performance of the terms and provisions of this Agreement does not violate any applicable provision of law creating or authorizing County, any rules of County, or any state or federal regulations,or other agreements or rules by which County may be bound. c) This Agreement has been duly executed and delivered by County and constitutes its legal, valid and binding obligation enforceable in accordance with its terms. 13. Governing Law and Dispute Resolution. This Agreement shall be governed by and construed under the laws of the State of Florida. In the event of any dispute under this Agreement,the parties shall attempt to resolve such dispute first by non-binding mediation, with each party paying equal costs for the mediation, prior to commencing any formal action or procedure. The Parties consent to jurisdiction over them in the State of Florida and agree that venue for any state action arising under this Agreement shall lie solely in the courts located in Collier County, Florida. 14. Amendment and Assignment. This Agreement can only be amended or assigned by mutual written consent of the parties hereto with the same formalities as it was executed. 15. Notice. All notices and other communications required hereunder shall be in writing and shall be sent by certified mail, return receipt requested and addressed as follows: To District: To City: Collier County Manager's Office City of Everglades City 3299 Tamiami Trail East, Suite 202 P.O. Box 110 Naples, FL 34112-5746 Everglades City, FL 34139 Phone: (239) 252-8383 To County: Collier County Manager's Office 3299 Tamiami Trail East, Suite 202 Naples, FL 34112-5746 Phone: (239) 252-8383 Page 6 of 10 16.C.11.a Packet Pg. 1008 Attachment: Technical Assistance Interlocal Agreement - 12-12-2017 - Item 11E - Executed (6594 : Provide Technical Assistance Requested by 1 1 E 16. Merger and Integration Clause. This Agreement is the entire agreement between the parties with respect to the matters noted herein. All prior representations, undertakings, and agreements by or between the parties hereto with respect to the subject matter of this Agreement are merged into, and expressed in, this Agreement, and any and all prior representations, undertakings, and agreements by and between such parties with respect thereto, are hereby canceled, except for any task orders under the Interlocal Agreement between the City and Collier County dated September 26, 2017, ("Hurricane Irma Interlocal Agreement") as well as the Hurricane Irma Interlocal Agreement itself. 17. Counterpart. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which togethers shall constitute one and the same instrument. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their appropriate officials, as of the dates first above written. Collier County Water-Sewer District: ATTEST:BOARD OF COUNTY COMMISSIONERS OF DWIGHT E. BROCK, Clerk COLLIER COUNTY, FLORIDA, AS EX-OFFICIO THE GOVERNING BOARD OF THE COLLIER COUNTY A EWER DISTRICT v ;; By: kttest as to chkfflin Clerk PENNY TAY •', CHAIRM signature ,9144,e;')*' Approved las to forma legality for the Collier Cdunfy Water-Sewer District: Jeffrey A!Klatkkow County Attorney Page 7 of 10 16.C.11.a Packet Pg. 1009 Attachment: Technical Assistance Interlocal Agreement - 12-12-2017 - Item 11E - Executed (6594 : Provide Technical Assistance Requested by 1 1 E Collier County: ATTEST: BOARD OF COUNTY COMMISSIONERS DWIGITE BROCK, CLERK COLLIER 0 FLORIDA r Q By. By: J Attest asp 1 161t* Clerk PENNY TAY'', CHAIR 4r tTe`411ty. Approv d atotform and legality for Collier to yrl k 'i i A Jeffrey A. Klazkow County Attorey li i ,a Page 8 of 10 16.C.11.a Packet Pg. 1010 Attachment: Technical Assistance Interlocal Agreement - 12-12-2017 - Item 11E - Executed (6594 : Provide Technical Assistance Requested by 1 1 E City of Everglades City ATTEST: City of Everglades City 1 I L By: ih- tir ‘1 By: j Dottie Joiner, Cit lerk HOWE L GRIMM JR., MAYOR City of Everglades City Approved as to form and legal sufficiency for the City: City Atto. ey for the City of A.: .des City Page 9 of 10 16.C.11.a Packet Pg. 1011 Attachment: Technical Assistance Interlocal Agreement - 12-12-2017 - Item 11E - Executed (6594 : Provide Technical Assistance Requested by 1 1 E Exhibit A VWNA Operations Agreement Page 10 of 10 16.C.11.a Packet Pg. 1012 Attachment: Technical Assistance Interlocal Agreement - 12-12-2017 - Item 11E - Executed (6594 : Provide Technical Assistance Requested by 1 1 E Agreement for Operations and Maintenance Services THIS AGREEMENT is entered into this 7th day of November, 2017 (the "Effective Date"), by and between City of Everglades City, a Florida municipality, with its mailing address at P.O. Box 110, Everglades City, FL 34139 (hereinafter OWNER") and Veolia Water North America — South, LLC, a Delaware limited liability company having a Florida mailing address and office at 14055 Riveredge Drive, Suite 240, Tampa, FL 33637 (hereinafter VW NA"). WHEREAS, OWNER owns and provides for the operation of a water and wastewater system, including maintenance, repair, expansion, administration, billing, collection, customer service, and permitting functions; WHEREAS, OWNER, due to various circumstances can no longer effectively provide for the operation, maintenance, and repair of the water and wastewater system; WHEREAS, failure to engage an operator immediately to operate, maintain, and repair OWNER'S water and wastewater systems will create an immediate threat to the public health, safety, or welfare of the residents of OWNER; WHEREAS, following Hurricane Irma, OWNER desires to procure VWNA on an emergency basis to perform the operation, maintenance, repair functions for the compensation provided for herein; WHEREAS, OWNER accepts that VWNA will operate, maintain, and repair the water and wastewater system in its current condition and OWNER will allow and pay for certain necessary improvements, such as adding telemetry and purchasing critical spares as needed to operate effectively; WHEREAS, it is the intent of OWNER and VWNA to, immediately after execution hereof, begin negotiating a contract to manage the wastewater and water systems; WHEREAS, this is not an Agreement for professional architectural, engineering, landscape architectural, or surveying and mapping services. Agreement for Operations and Maintenance Services Page No. 1 16.C.11.a Packet Pg. 1013 Attachment: Technical Assistance Interlocal Agreement - 12-12-2017 - Item 11E - Executed (6594 : Provide Technical Assistance Requested by 1 1 E NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth, OWNER and VWNA agree as follows: 1. General 1.1 Definitions of words and phrases used in this Agreement and the attachments are contained in Appendix A. 1.2 All land, buildings, facilities, easements, licenses, rights-of-way, equipment, and vehicles presently or hereinafter acquired or owned by OWNER shall remain the exclusive property of OWNER unless specifically provided for otherwise in this Agreement. 1.3 This Agreement shall be governed by and interpreted in accordance with the laws of the State of Florida. The parties consent to jurisdiction over them in the State of Florida and agree that venue for any state action arising under this Agreement shall lie solely in the courts located in Collier County, Florida, and for any federal action shall lie solely in the United States District Court for the Middle District of Florida, Ft. Myers Division. 1.4 This Agreement shall be binding upon the successors and assigns of each of the parties, but neither party shall assign this Agreement without the prior written consent of the other party. Consent shall not be unreasonably withheld. 1.5 All notices shall be in writing and transmitted to the party's address stated above. All notices shall be deemed given when delivered, if delivered personally or by courier mail service, i.e., Federal Express or Airborne Express, delivered after such notice has been deposited in the United States mail postage prepaid, if mailed certified or registered U.S. mail, return receipt requested; or received by the party for which notice is intended if given in any other manner. 1.6 This Agreement, including Appendices A through G, is the entire Agreement between the parties. This Agreement may be modified only by written agreement signed by both parties. Wherever used, the terms "VWNA" and OWNER" shall include the respective officers, agents, directors, elected or appointed officials, and employees, and, where appropriate, subcontractors or anyone acting on their behalf. 1.7 If any term, provision, covenant, or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of the provisions shall remain in full force and effect and shall in no way be affected, impaired, or invalidated. Agreement for Operations and Maintenance Services Page No.2 16.C.11.a Packet Pg. 1014 Attachment: Technical Assistance Interlocal Agreement - 12-12-2017 - Item 11E - Executed (6594 : Provide Technical Assistance Requested by 1 1 E 1.8 It is understood that the relationship of VWNA to OWNER is that of independent contractor. The services provided under this Agreement are of a professional nature and shall be performed in accordance with good and accepted industry practices for contract operators similarly situated. However, such services shall not be considered engineering services, and nothing herein is intended to imply that VWNA is to supply professional engineering services to OWNER unless specifically stated in this Agreement to the contrary. 1.9 If any litigation is necessary to enforce the terms of this Agreement, the prevailing party shall be entitled to reasonable attorney's fees and expenses of travel for attorneys, witnesses and other representatives of the Parties which are directly attributed to such litigation in addition to any other relief to which it may be entitled. 1.10 Nothing in this Agreement shall be construed to create in any third party or in favor of any third party any right(s), license(s), power(s), or privilege(s). 1.11 Prior to the commencement of work under this Agreement, each party shall designate in writing an employee or other representative of the designating party who shall have full authority to approve changes in the Scope of Work and compensation therefor, execute written Change Orders reflecting such changes, render decisions promptly, and furnish information expeditiously to the other party when necessary. 1.12 This Agreement is to be interpreted in accordance with its plain meaning and, because this Agreement is the product of mutual drafting, each party having been represented by or having the opportunity to be represented by counsel, this Agreement is not to be construed against either party. 2. VWNA's Duties: General 2.1 VWNA shall provide a sufficient number, as required by the Florida Department of Environmental Protection ("FDEP"), of certified and qualified personnel, including management, administrative, operational, technical, laboratory, and clerical, who meet relevant State of Florida requirements and certifications regarding water and wastewater treatment operations, maintenance, and management and are capable and demonstrate experience necessary to operate the facilities covered by this Agreement. VWNA proposes to staff the Project as set forth in the organization chart attached as Appendix E. Agreement for Operations and Maintenance Services Page No. 3 16.C.11.a Packet Pg. 1015 Attachment: Technical Assistance Interlocal Agreement - 12-12-2017 - Item 11E - Executed (6594 : Provide Technical Assistance Requested by 1 1 E 2.2 VWNA shall provide ongoing training and education for appropriate personnel in all necessary areas of modern water and/or wastewater process control, maintenance, safety, and supervisory skills. 2.3 VWNA shall develop and/or supply and utilize computerized programs for maintenance, process control, cost accounting, and laboratory Quality Assurance/Quality Control. Such programs shall be capable of readily providing historical data and trends. 2.4 VWNA shall, within fifteen (15) days after the Commencement Date, provide a physical inventory of OWNER's vehicles and equipment in use at the Project and a general statement as to the condition of each vehicle or piece of equipment. 2.5 VWNA shall provide OWNER with a physical inventory of chemicals and other consumables on hand at the Commencement Date. VWNA will provide OWNER with the same quantity of chemicals or equivalent upon termination of this Agreement. 2.6 VWNA shall be responsible for maintaining all manufacturers' warranties on new equipment purchased by OWNER and assist OWNER in enforcing existing equipment warranties and guarantees. 2.7 VWNA shall provide OWNER with full documentation that preventive maintenance is being performed on OWNER's owned equipment in accordance with manufacturer's recommendations at intervals and in sufficient detail as may be determined by OWNER. Such a maintenance program must include documentation of corrective and preventive maintenance and a spare parts inventory. 2.8 VWNA shall operate, maintain, and/or monitor the Project on a 24-hour per day, seven days per week schedule. The 24-hour per day, seven days per week monitoring system must be designed and operated such that it will notify VWNA prior to the occurrence of an impending overflow, spill, or unauthorized discharge; providing VWNA sufficient time to implement appropriate action in a timely manner to prevent the overflow, spill, or unauthorized discharge. Additionally, per the FDEP requirements, (a) the water treatment facilities will only be staffed Monday through Friday for a minimum of three (3) hours a day with one visit each weekend day by a Class C operator or higher, and (b) the wastewater treatment facilities only will be staffed seven days a week for a minimum of six(6) hours a day by a Class C operator or higher. Agreement for Operations and Maintenance Services Page No.4 16.C.11.a Packet Pg. 1016 Attachment: Technical Assistance Interlocal Agreement - 12-12-2017 - Item 11E - Executed (6594 : Provide Technical Assistance Requested by 11E 2.9 Visits may be made at a reasonable time by OWNER's officers so designated by OWNER's representative. Keys for the Project shall be provided to OWNER by VWNA for such visits. All visitors to the Project shall comply with VWNA's operating and safety procedures. 2.10 VWNA shall implement and maintain an employee safety program in compliance with applicable laws, rules, and regulations and make recommendations to OWNER regarding the need, if any, for OWNER to rehabilitate, expand or modify the Project to comply with governmental safety regulations applicable to VWNA's operations hereunder and federal regulations promulgated pursuant to the Americans with Disabilities Act ("ADA"). Nothing herein shall be construed to place upon VWNA a duty to find and report violations of either the safety laws or the ADA at the Facility. 2.11 VWNA may modify the process and/or facilities to achieve the objectives of this Agreement and such costs shall be considered Other Direct Expenses; provided, however, any modification in excess of four thousand dollars ($4,000.00) shall be considered a Capital Expenditure. VWNA will prioritize safety and permit compliance issues. 2.12 VWNA may, after the Effective Date, during any emergency affecting the safety of persons or property, without written amendment or change order, at VWNA's discretion, act to prevent threatened damage, injury, or loss. VWNA shall be compensated by OWNER for any such emergency work performed notwithstanding the lack of a written amendment. Such compensation will include VWNA's non-labor direct costs for the emergency work. Notwithstanding the foregoing, absent a request or change order from OWNER, nothing contained in this Section shall impose upon VWNA an affirmative duty to perform any emergency work and failure to perform any such emergency work shall not impose upon VWNA any liability for errors and omissions for emergency work the costs of which exceed $5,000. In the event of an emergency, the primary VWNA representative shall be Keith Mullins, (352) 302-4096 keith.mullins@veolia.com, and the primary contact for the OWNER shall be the OWNER's mayor. 2.13 VWNA shall, as required by law, permit, or court order, prepare plant performance reports and submit them to OWNER for signature and transmittal to appropriate authorities. These reports will include the monthly, quarterly, and annual reports and system evaluations identified in the Consent Order for the water and sewer system. Agreement for Operations and Maintenance Services Page No. 5 16.C.11.a Packet Pg. 1017 Attachment: Technical Assistance Interlocal Agreement - 12-12-2017 - Item 11E - Executed (6594 : Provide Technical Assistance Requested by 1 1 E 2.14 VWNA shall provide laboratory testing and sampling presently required by plant performance portions of the Consent Order, the NPDES permit,the Clean Water Act, the Safe Drinking Water Act, and/or any federal, state, or local rules and regulations, statutes, or ordinances, permit or license requirements or judicial and regulatory orders and decrees. If and when OWNER implements an industrial pretreatment program, VWNA shall additionally provide technical and analytical services to OWNER to assist OWNER in managing such Industrial Pretreatment Program including sampling, monitoring, and preparation of the required reports. There is no Industrial Pretreatment Program in place as of the Effective Date. 2.15 VWNA shall provide for the collection and hauling of Waste from the wastewater facility to OWNER's existing or approved disposal sites. It shall be the sole right and responsibility of OWNER to select disposal sites to be used by VWNA for OWNER's Waste. All Waste and/or byproduct treated and/or generated during VWNA's performance of services is and shall remain the sole and exclusive property of OWNER. All manifests or other documentation required for disposal of Waste shall be signed by or in the name of OWNER. 2.16 VWNA shall, within the first ninety (90) days after the Commencement Date, provide OWNER with a listing of recommended facility improvements, that may include Capital Expenditures, that VWNA believes will be required to remedy the problems impacting the Project as of the Effective Date (the "Facility Improvements"). VWNA shall develop an asset management plan as part of this Agreement. VWNA shall work with Owner to identify and perform Facility Improvements until such time as the new wastewater treatment plant is designed, constructed, and commissioned and is in working order and capable of meeting their effluent requirements. Additionally, VWNA shall work with Owner to confirm the validity and necessity in completing, including, but not limited to, a review of the twenty-five items identified as Corrective Actions within the Consent Order, Section 5(a). 2.17 VWNA shall use reasonable efforts, using the OWNER's odor control equipment as well as best practices, to control odors from the Facility. The Parties agree and acknowledge that as of the Effective Date, OWNER does not have any odor control equipment. 2.18 VWNA shall provide OWNER with a full accounting of all expenditures at intervals and in sufficient detail as may be determined by OWNER, and assist OWNER in the preparation of annual operating budgets. Agreement for Operations and Maintenance Services Page No.6 16.C.11.a Packet Pg. 1018 Attachment: Technical Assistance Interlocal Agreement - 12-12-2017 - Item 11E - Executed (6594 : Provide Technical Assistance Requested by 1 1 E 2.19 At the request of OWNER,VWNA may agree, but shall not be obligated to agree,to implement the Capital Expenditures identified in Section 2.16 or as otherwise identified throughout the term to be compensated in accordance with this Agreement. 3. VWNA's Duties:Wastewater Treatment Plant 3.1 This Article shall apply to VWNA's services for OWNER's wastewater treatment system. 3.2 Within the design capacity and capabilities of the wastewater treatment plant described in detail in Appendix B, VWNA will manage, operate, and maintain the wastewater treatment plant designed to treat an Annual Average Flow of 0.160 million gallons a day so that effluent discharged from the Plant's outfalls meets the requirements specified in Appendix C-1. VWNA shall use reasonable efforts consistent with prudent industry practices to operate the wastewater treatment plant to the maximum of its potential in its condition as of the Effective Date until the new design, construction, and commissioning of the new wastewater treatment plant is complete. "Prudent Industry Practices" for this Agreement shall include regular sludge hauling, influent and effluent testing, process control testing including dissolved oxygen and settleable solids, process control management plans, and weekly process control meetings of operators. VWNA shall monitor all wastewater entering the wastewater treatment plant and treat all such wastewater in accordance with the terms of this Agreement and applicable law. 3.3 Subject to the availability of funds within the Facilities Budget for Maintenance and Repair expenses, VWNA will perform all Maintenance and Repairs for the Wastewater portion of the Project. VWNA will prioritize safety and permit compliance issues. 4. VWNA's Duties:Water Treatment Plant 4.1 This Article shall apply to VWNA's services for OWNER's water treatment plant. 4.2 Within the design capacity and capabilities of the water treatment plant described in more detail in Appendix B, VWNA will manage, operate and maintain the water treatment plant designed to treat 0.465 million gallons per day so that finished water produced from the plant meets the requirements specified in Appendix C-2. Agreement for Operations and Maintenance Services Page No.7 16.C.11.a Packet Pg. 1019 Attachment: Technical Assistance Interlocal Agreement - 12-12-2017 - Item 11E - Executed (6594 : Provide Technical Assistance Requested by liE 4.3 Subject to the availability of funds within the Facilities Budget for Maintenance and Repair expenses, VWNA will perform all Maintenance and Repairs for the Water portion of the Project. 5. VWNA's Duties: Wastewater Collection System and Water Distribution System 5.1 This Article shall apply to VWNA's maintenance and repair services for OWNER's wastewater collection system and the water distribution system serving OWNER. The collection system and water distribution system are described in Appendix B. 5.2 VWNA will maintain and repair the wastewater collection system and the water distribution system. VWNA's responsibility for the wastewater collection system shall end at the Customer's property line. VWNA's responsibility for the water distribution system shall end at the Customer's water meter, or where no water meter exists, at the Customer's property line. 5.3 Sewer Back-Up Procedure. From and after the inception of the Term of this Agreement, VWNA shall establish (i) a routine, normal sewer line preventative maintenance program, and (ii) corrective procedures to be implemented in the event of any personal injury or property damage resulting from a sewer back-up which will consist of the following: 5.3.1 Upon receipt of a Customer notice, VWNA will determine whether the cause of the sewer back-up was an obstruction in OWNER's grinder pump station, lateral line or the Customer's house line; 5.3.2 If the obstruction is a result of OWNER's grinder pump station, VWNA (i) will determine the root cause failure and implement corrective action to return / repair the grinder pump station to normal service operation (ii) document the approximate date and time of the obstruction; (iii) determine the extent of the personal injury or property damage, if any; iv) contact a predetermined water remediation company to clean up the sewer back-up and to minimize any damage, the cost of which will be paid by OWNER; and (v) provide notice to OWNER's insurance carrier of the potential loss claim; 5.3.3 If the obstruction is in OWNER's lateral line, VWNA will (i) remove the cause of the sewer line obstruction by implementation of its corrective procedures; (ii) document the approximate date and time of the obstruction; (iii) determine the extent of the personal injury or property damage, if any; (iv) contact a predetermined water remediation company to clean up the sewer back-up and to minimize any damage, the cost of Agreement for Operations and Maintenance Services Page No. 8 16.C.11.a Packet Pg. 1020 Attachment: Technical Assistance Interlocal Agreement - 12-12-2017 - Item 11E - Executed (6594 : Provide Technical Assistance Requested by 1 1 E which will be paid by OWNER; and (v) provide notice to OWNER of the potential loss claim; 5.3.4 If the sewer line back-up is the Customer's house line, VWNA will advise the Customer to contact a water remediation service company and Customer's homeowner's insurance carrier; and 5.3.5 If the Customer files a claim against OWNER or VWNA, VWNA will notify OWNER of the potential loss claim. 5.4 Except as provided in Subsection 8.1 below, after completing the procedure set forth in Subsections 5.3.1 through 5.3.5 above, VWNA shall have no further responsibility or liability to OWNER or the Customer(s) for the personal injury or property damage caused by the sewer back-up or the consequences thereof. 6. OWNER's Duties: 6.1 OWNER shall fund or reimburse all necessary Capital Expenditures, which will be performed by VWNA under written change orders-to this Agreement. Any loss,damage, or injury resulting from OWNER's failure to provide Facility Improvements and/or funds in excess of the Facilities Budget Maintenance and Repair expenses when reasonably requested by VWNA shall be the sole responsibility of OWNER. 6.2 OWNER shall keep in force all Project warranties, guarantees, easements, and licenses that have been granted to OWNER and are not transferred to VWNA under this Agreement. 6.3 Except as otherwise set forth in the Owner Direct Purchase Program attached hereto as Appendix F, OWNER shall pay all sales, excise, ad valorem, property, franchise, occupational, and disposal taxes, or other taxes associated with the Project other than taxes imposed upon VWNA's net income and/or payroll taxes for VWNA employees. 6.4 OWNER shall provide VWNA, within a reasonable time after request and on an "as available" basis, with the temporary use of any piece of OWNER's heavy equipment that is available so that VWNA may discharge its obligations under this Agreement in the most cost-effective manner. 6.5 OWNER shall provide all registrations and licenses for OWNER's vehicles used in connection with the Project. 6.6 OWNER shall procure vehicles and equipment for VWNA's exclusive use at the Project; provided, however, if the OWNER is unable to procure such vehicles and equipment, or Agreement for Operations and Maintenance Services Page No.9 16.C.11.a Packet Pg. 1021 Attachment: Technical Assistance Interlocal Agreement - 12-12-2017 - Item 11E - Executed (6594 : Provide Technical Assistance Requested by 1 1 E if a vehicle or equipment is no longer in good working order,VWNA reserves the right to rent, lease, or procure, on a temporary basis,vehicles or equipment as necessary to discharge its obligations under this Agreement; provided, however,VWNA shall not make any purchase or any long-term commitment for forty-five (45) days during which time period OWNER shall decide to either (i) rent, lease or procure the vehicle or equipment or (ii) provide consent for VWNA to rent, lease or procure such vehicle or equipment. 6.7 OWNER shall provide for VWNA's entry into existing disposal sites for disposal of garbage, screenings, grit, sludge, and scum. 6.8 OWNER shall protect against any losses resulting from the theft, damage, or unauthorized use of property owned by OWNER and shall accept liability for such losses except to the extent such losses are directly caused by the negligent acts or omissions of VWNA. 6.9 OWNER, through the capital work provided by VWNA, shall be responsible for paying all costs associated with: (i) bringing the Project into compliance with Consent Order. OWNER acknowledges and agrees that OWNER shall be responsible for any fines or civil penalties imposed by any regulatory or enforcement agencies resulting from OWNER's failure to comply with the Consent Order and/or implement any risk management programs. 6.10 OWNER shall keep in force any project warranties, guarantees, easements, and licenses that have been granted to OWNER and are not transferred to VWNA under this Agreement. 6.11 OWNER shall continue to be responsible and pay for the general administration and enforcement of (i) the water, wastewater, collection and distribution systems, (ii) OWNER's Industrial Pretreatment Program, (iii) new water and sewer connections unless VWNA is retained to perform such functions, and (iv) long-term system and service area planning. Typical administration costs associated with the above activities include costs such as the services of the auditor, lawyer, liability insurance, and property insurance covering the Project. 6.12 In order to enable VWNA to carry out its obligations under this Agreement, OWNER shall provide VWNA. free of charge, with such facilities (including, without limitation, offices, locker rooms, showers, toilets and parking spaces) and utilities (including, without limitation, water, electricity, high-speed internet and telephone lines) which are reasonably necessary for VWNA, its employees and its subcontractors or agents to provide the Services. Agreement for Operations and Maintenance Services Page No. 10 16.C.11.a Packet Pg. 1022 Attachment: Technical Assistance Interlocal Agreement - 12-12-2017 - Item 11E - Executed (6594 : Provide Technical Assistance Requested by 1 1 E 7. Compensation 7.1 The Annual Fee shall be payable in twelve monthly installments based upon the then effective Facilities Budget as provided in this Section 8 and as adjusted pursuant to the true-up of Reimbursable Operating Expenses described below. OWNER shall pay to VWNA an amount equal to one-twelfth (1/12th) of the total Facilities Budget for the Project for such Fiscal Year which shall be due and payable on the first of the month for each month that services are provided. In addition, invoices shall include any true up amounts to account for differences between the Reimbursable Operating Expenses set forth on the Facilities Budget for the two months prior to the invoice date and the actual Reimbursable Operating Expenses for such month. For example, the invoice dated September 1 for payment due October 1 (October services) will include a true-up of July Reimbursable Operating Expenses. The Overhead Allocation for Fiscal Year 2017-2018 shall be forty-five thousand seventy-seven dollars ($45,077.00). 7.2 The Overhead Allocation shall be adjusted annually by multiplying the existing Overhead Allocation by the greater of either one hundred two percent (multiply by 1.02), or one plus the percentage change in the Consumer Price Index for all Urban Consumers (U.S. City Average) - All Items - not seasonally adjusted (CUUR0000SA0) as published by the U. S. Department of Labor Statistics three months and fifteen months prior to the beginning of the period for which the adjusted Overhead Allocation is being calculated. 7.3 On or prior to the Effective Date VWNA will provide OWNER with a proposed Facilities Budget for Fiscal Year 2017-2018. If the Agreement is extended per section 9.1, with respect to each Fiscal Year following the Fiscal Year that will end September 30, 2018, VWNA shall, on or before three months prior to the beginning of each Fiscal Year, furnish to OWNER a Facilities Budget for the Fiscal Year that begins on the immediately succeeding first day of the Fiscal Year. If the Facilities Budget reflects an increase in average wage rate ($/hr) included in Labor Expenses of five percent (5%) or more, such Facilities Budget remains subject to the approval of OWNER, which approval shall not be unreasonably withheld or delayed. 7.4 The Facilities Budget may, by the mutual agreement of VWNA and OWNER, be revised at any time during a Fiscal Year as a result of increases or decreases in Reimbursable Operating Expenses. In the event of the reconfiguration or consolidation of the Project during a Fiscal Year, the parties will cooperate in revising the Facilities Budget for the Fiscal Year during which the reconfiguration or consolidation becomes operative to the extent that such event had not been anticipated and reflected in the then effective Facilities Budget. 7.5 VWNA will seek OWNER's review and approval, which will not be unreasonably withheld by OWNER, prior to incurring or performing any Capital Expenditures. VWNA is specifically authorized by OWNER to incur and/or perform Corrective Maintenance and Repair items Agreement for Operations and Maintenance Services Page No. 11 16.C.11.a Packet Pg. 1023 Attachment: Technical Assistance Interlocal Agreement - 12-12-2017 - Item 11E - Executed (6594 : Provide Technical Assistance Requested by 1 1 E and Preventive or Predictive Maintenance items that are less than a $4,000 per item and other Reimbursable Operating Expenses without seeking further review and approval from OWNER. VWNA and OWNER shall meet and resolve any request for Capital Expenditures as soon as possible, and no later than fifteen (15) business days, unless City Council approval is required, in which case, OWNER shall have until the next regularly scheduled City Council meeting, after a request for approval is made by VWNA. VWNA and OWNER will work cooperatively to come to an agreement regarding the optimal solution to minimize delays in addressing the identified problem. VWNA shall be entitled to relief to the extent that OWNER rejects an expense item and it negatively impacts VWNA's ability to perform and fulfill its obligations under the Agreement and/or to the extent such rejection results in any loss, damage, noncompliance, or injury. 7.6 VWNA will invoice OWNER for Capital Expenditures and may include the amount due as an additional value within the monthly invoices described in Section 7.1 or submit individual invoices for the specific events and expenses. Should individual invoices be submitted for payment, OWNER shall pay such invoices pursuant to the Florida Prompt Payment Act, including any interest due in accordance with the Florida Prompt Payment Act. 7.7 VWNA shall utilize the attached proposed Everglades City Authorization Request as referenced in Appendix G. VWNA representatives shall complete the Authorization Request as well as VWNA internal pricing guidelines. The completed document shall be issued to the respective OWNER representative for approval. 7.8 VWNA shall use the Owner Direct Purchase Program outlined in Appendix F when making any Capital Expenditures. 7.9 All invoices shall be submitted in accordance with the Florida Prompt Payment Act as it applies. All payments shall be due on the date established by the Florida Prompt Payment Act. Payment due date for purchase of goods or services other than construction services is net forty-five (45) days from the date an invoice submitted in accordance with the Florida Prompt Payment Act is received by OWNER. In the event of a disputed invoice, only that portion so contested will be withheld from payment and the undisputed portion shall be due and payable on the terms set forth herein. OWNER does not pay sales tax and will provide sales tax exemption information at the written request of VWNA, where necessary. VWNA may charge, and OWNER shall pay, interest due for late payments in accordance with the Florida Prompt Payment Act. 8. Indemnity, Liability, and Insurance 8.1 VWNA shall indemnify and hold OWNER harmless from any liability or damages for bodily injury, including death, property damages, and pollution damages which may arise from VWNA's negligence or willful misconduct under this Agreement; Agreement for Operations and Maintenance Services Page No. 12 16.C.11.a Packet Pg. 1024 Attachment: Technical Assistance Interlocal Agreement - 12-12-2017 - Item 11E - Executed (6594 : Provide Technical Assistance Requested by 1 1 E provided, VWNA shall be liable only for that percentage of total damages that corresponds to its percentage of total negligence or fault. 8.2 OWNER shall indemnify and hold VWNA harmless from any liability or damage or bodily injury, including death, property damages, and pollution damages which may arise from OWNER's negligence or willful misconduct under this Agreement; provided, OWNER shall be liable only for that percentage of total damages that corresponds to its percentage of total negligence or fault. 8.3 Unless covered by the indemnities contained in Sections 8.1 and 8.2, neither VWNA nor OWNER shall be liable to the other in any action or claim for consequential, incidental, or special damages, loss of profits, loss of opportunity, loss of product, or loss of use. Any protection against liability for losses or damages afforded any individual or entity by these terms shall apply whether the action in which recovery of damages is sought is based on contract, tort (including sole, concurrent or other negligence and strict liability of any protected individual or entity), statute, or otherwise. To the extent permitted by law, any statutory remedies, which are inconsistent with these terms, are waived, except for sovereign immunity, which is not waived. 8.4 VWNA shall be liable for those fines or civil penalties imposed by a regulatory or enforcement agency for violations occurring on or after Commencement Date of the effluent quality requirements provided for in Appendix C-1 or the finished water quality provided for Appendix C-2 that are a result of VWNA's negligence. OWNER will assist VWNA to contest any such fines in administrative proceedings and/or in court prior to any payment by VWNA. VWNA shall pay the cost of any such contest. 8.5 OWNER shall be liable for those fines or civil penalties imposed by any regulatory or enforcement agencies on OWNER and/or VWNA that occurred or arose from incidents occurring prior to Commencement Date or are not a.result of VWNA's negligence or are otherwise directly related to the ownership of the Project and shall indemnify and hold VWNA harmless from the payment of any such fines and/or penalties. 8.6 To the fullest extent permitted by law and notwithstanding any other provision of this Agreement, VWNA's liability for performance or non-performance of any obligation arising under the Agreement (whether arising under breach of contract, tort, strict liability, or any other theory of law or equity) including, but not limited to its indemnity obligations specified in Section 8.1 of the Agreement, shall not exceed the then current Annual Fee cumulatively for the duration of the Agreement, provided that the foregoing limitation shall not apply to any losses resulting from the gross negligence or willful misconduct of VWNA or Agreement for Operations and Maintenance Services Page No. 13 16.C.11.a Packet Pg. 1025 Attachment: Technical Assistance Interlocal Agreement - 12-12-2017 - Item 11E - Executed (6594 : Provide Technical Assistance Requested by 1 1 E VWNA's subcontractors, employees, or agents in breach of VWNA's obligations under this Agreement. 8.7 Each party shall obtain and maintain insurance coverage of a type and in the amounts described in Appendix D. Each party shall provide the other party with satisfactory proof of insurance. 8.8 Nothing in this Agreement is a waiver by OWNER of any immunity or limitation of liability the OWNER may be entitled to under the doctrine of sovereign immunity or section 768.28, Florida Statutes. 8.9 The provisions of Sections 8.1 through 8.8 above shall survive the termination of the Agreement. 9. Term,Termination, and Default 9.1 The initial term of this Agreement shall be one year commencing November 8, 2017 Initial Term"). Thereafter, this Agreement shall be automatically renewed for successive terms of one year each unless canceled in writing by either party no less than one hundred and twenty(120) days prior to expiration. 9.2 A party may terminate this Agreement only for a material breach of the Agreement by the other party; only after giving written notice of breach; and, except in case of a breach by OWNER for nonpayment of VWNA's invoices, in which case termination may be immediate by VWNA, only after allowing the other party thirty (30) days to cure or commence taking reasonable steps to cure the breach. 9.3 In the event that this Agreement is terminated for any reason prior to the ending date of the Initial Term, OWNER shall pay to VWNA any funds identified in Sections 7.1, Sections 7.2 and Sections 7.6 that have not been paid to VWNA through the date of termination. 9.4 Upon notice of termination by OWNER, VWNA shall assist OWNER in assuming operation of the Project. If additional Cost is incurred by VWNA at request of OWNER, OWNER shall pay VWNA such Cost within 30 days of invoice receipt. 9.5 Upon termination of this Agreement and any renewals and extensions of it, VWNA will return the Project to OWNER in the same condition as it was upon completion of the Facility Improvements, ordinary wear and tear excepted. Equipment and other personal property purchased by VWNA for use in the operation or maintenance of the Project shall remain the property of VWNA upon termination of this Agreement unless the property was directly paid for by OWNER or Agreement for Operations and Maintenance Services Page No. 14 16.C.11.a Packet Pg. 1026 Attachment: Technical Assistance Interlocal Agreement - 12-12-2017 - Item 11E - Executed (6594 : Provide Technical Assistance Requested by 1 1 E OWNER specifically reimbursed VWNA for the cost incurred to purchase the property or this Agreement provides to the contrary. 10. Disputes and Force Majeure 10.1 Neither party shall be liable for its failure to perform its obligations under this Agreement if such failure is due to any Unforeseen Circumstances or force majeure. However, this Section may not be used by either party to avoid, delay or otherwise affect any payments due to the other party. 11. Public Records 11.1 VWNA shall allow public access to all documents, papers, letters, or other materials subject to the provisions of chapter 119, Florida Statutes, and made or received by VWNA in conjunction with the Agreement. 11.2 The Parties acknowledge that failure to cooperate with any public records requests shall be considered a material breach for purposes of Section 9.2 of this Agreement. 11.3 IF VWNA HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO VWNA'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS CONTRACT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS AT (239) 695-3781, DSMALLWOOD@CITYOFEVERGLADES.ORG, 102 COPELAND AVE. NORTH EVERGLADES CITY, FL 34139. 11.4 Further,VWNA agrees to comply with Florida's public records laws, specifically to: a. Keep and maintain public records required by OWNER to perform the service. b. Upon request from the OWNER'S custodian of public records, provide OWNER with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in chapter 119, or as otherwise provided by law. c. Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law for the duration of the Term and following completion of the contract if VWNA does not transfer the records to OWNER. d. Upon completion of the contract, transfer, at no cost, to OWNER all public records in possession of VWNA or keep and maintain public records required by VWNA to perform the service. If VWNA transfers all public records to the OWNER upon completion of the contract, VWNA shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If VWNA keeps and maintains public records upon completion of the contract, VWNA shall Agreement for Operations and Maintenance Services Page No. 15 16.C.11.a Packet Pg. 1027 Attachment: Technical Assistance Interlocal Agreement - 12-12-2017 - Item 11E - Executed (6594 : Provide Technical Assistance Requested by 1 1 E meet all applicable requirements for retaining public records. All records stored electronically must be provided to OWNER, upon request from the OWNER's custodian of public records, in a format that is compatible with the information technology systems of OWNER. Both parties indicate their approval of this Agreement by their signatures below, and each party warrants that all corporate or governmental action necessary to bind the parties to the terms of this Agreement has been and will be taken. VEOLIA WATER NORTH AMERICA- SOUTH, LLC By: t`, 1 ... Name: S7'<ve., f l vfe.C' Title: SR, V,O o /C 67 Pir eciS Date: /'j// ,/ Zoll z OWNER Y Mayor 2d..1-41# ncilperson iiiky.,(1 • Council person Cjr14-4-1J(/--14-1,Councilperson ATTEST: Agreement for Operations and Maintenance Services Page No. 16 16.C.11.a Packet Pg. 1028 Attachment: Technical Assistance Interlocal Agreement - 12-12-2017 - Item 11E - Executed (6594 : Provide Technical Assistance Requested by 1 1 E Counci person Dottie Joiner,Jerk Councilperson Agreement for Operations and Maintenance Services Page No. 17 16.C.11.a Packet Pg. 1029 Attachment: Technical Assistance Interlocal Agreement - 12-12-2017 - Item 11E - Executed (6594 : Provide Technical Assistance Requested by 1 1 E CERTIFICATE OF COUNSEL The undersigned, as counsel for Everglades City ("OWNER") in this transaction, hereby certifies that (s)he has examined the circumstances surrounding the selection of Veolia Water North America —South, LLC ("VWNA") and the award and letting of the foregoing contract to VWNA by OWNER, and has found that said selection and award process comply with the procurement laws of the State of Florida and OWNER. Date: / / i 7zCounselforOWNER Agreement for Operations and Maintenance Services Page No. 18 16.C.11.a Packet Pg. 1030 Attachment: Technical Assistance Interlocal Agreement - 12-12-2017 - Item 11E - Executed (6594 : Provide Technical Assistance Requested by 1 1 E APPENDIX A DEFINITIONS A.1 "Adequate Nutrients" means plant influent nitrogen, phosphorus and iron contents proportional to BOD5 in the ratio of five (5) parts nitrogen, one (I) part phosphorus, and one-half(0.5) part iron for each one hundred (100) parts BOD5. A.2 "Administrative Fee" means a fee payable by OWNER to VWNA for coordinating Capital Expenditures, the specific amount of which will be negotiated on a case-by-case basis, but will never exceed 13%. A.3 "Annual Fee" is the sum of (i) the Reimbursable Operating Expenses multiplied by thirteen percent(13%) plus (ii)the Overhead Allocation. A.4 "Biologically Toxic Substances" means any substance or combination of substances contained in the plant influent in sufficiently high concentration so as to interfere with the biological processes necessary for the removal of the organic and chemical constituents of the wastewater required to meet the discharge requirements of OWNER's Certificate of Approval. Biologically toxic substances include, but are not limited to, heavy metals, phenols,cyanides, pesticides and herbicides. A.5 "Capital Expenditures" means any expenditures for (1) Corrective Maintenance and Repairs that exceed Four Thousand Dollars ($4,000); (2) Preventive or Predictive Maintenance that exceeds Four Thousand Dollars ($4,000) or(2) expenditures related to Facility Improvements that exceed four thousand dollars ($4,000) or any other out of scope expenditures that are authorized by OWNER. Capital Expenditures shall be paid to VWNA at cost plus an Administrative Fee. A.6 "Commencement Date" shall mean November 13, 2017, A.7 "Consent Order" means that certain Florida Department of Environmental Protection Consent Order, OGC File No. 13-0853-11-W, dated March 27, 2013. A.8 "Corrective Maintenance and Repairs" means those non-routine/non-repetitive Maintenance activities required for operational continuity, safety, and performance, reasonably necessary to respond to or avert failure of the equipment used in connection with the operation of the Facility, or a component thereof. A.9 "Customer" means each person or entity having an account with OWNER and that is connected to the water or sewer system. Agreement for Operations and Maintenance Services Page No. 19 16.C.11.a Packet Pg. 1031 Attachment: Technical Assistance Interlocal Agreement - 12-12-2017 - Item 11E - Executed (6594 : Provide Technical Assistance Requested by 1 1 E A.10 "Facilities Budget" for any particular Fiscal Year means the projected Annual Fee calculated by the parties under Article VIII prior to each Fiscal Year. A.11 "Fiscal Year" means the period October 1 through September 30. A.12 "Labor Expenses" means all labor expenses, charges and costs incurred by VWNA in connection with VWNA's employees that administer, operate, maintain, repair and manage the Project and fulfill the obligations of VWNA under this Agreement, including, without limitation,salaries (regular time, overtime, vacation, holiday, sick,jury duty, and bereavement), bonuses (incentive, safety or otherwise), wage related taxes, training costs, licensing and certification expenses, worker's compensation insurance, fringe benefits including 401k contributions, welfare benefits, health benefits, defined benefit programs, and any and all other compensation and employment benefits VWNA routinely incurs, charges or allocates in connection with such employees based upon VWNA policies, programs and practices. If applicable, the allocation of localized staff shared between VWNA sites shall be included. A.13 "Maintenance" means those routine and/or repetitive activities required or recommended by the equipment or facility manufacturer or by VWNA to maximize the service life of the equipment,sewer,vehicles and facilities. A.14 "Other Direct Expenses" means any and all reasonable and necessary costs and expenses (i.e., other than Labor Expenses) incurred by VWNA in efficiently and economically administering, operating, maintaining, repairing and managing the Project and fulfilling VWNA's obligations under this Agreement, including, without limitation, the cost and expense of: (i) materials, (ii) supplies, (iii) computers, equipment and other instruments of service owned and utilized by VWNA's employees or others in performing the services and fulfilling the obligations under the Agreement, (iv) chemicals, fuel, sludge removal and disposal fees and expenses, (v) the costs incurred or allocated by VWNA for insurance and/or surety provided or carried by VWNA for its benefit and/or the benefit of OWNER in connection with performing services under the Agreement, (vi) fees for engineers, attorneys, accountants and subcontractors retained by VWNA to fulfill its obligations under the Agreement, (vii) the expenses of maintaining the Project in good repair and in good operating condition, excluding Capital Expenditures, (viii) the cost of lease, maintenance, registration, licenses and fuel for all vehicles supplied, (ix) the cost of utilities, (x) start-up and relocation costs; (xi) costs of procuring vehicles in accordance with Section 7.6, and (xii) all other cost or expense items that by generally accepted accounting principles are properly chargeable to or considered the expenses of VWNA in the administration, operation, maintenance and Agreement for Operations and Maintenance Services Page No.20 16.C.11.a Packet Pg. 1032 Attachment: Technical Assistance Interlocal Agreement - 12-12-2017 - Item 11E - Executed (6594 : Provide Technical Assistance Requested by 1 1 E management of the Project by VWNA based upon VWNA policies, programs and practices and the fulfillment of VWNA's obligations under this Agreement. A.15 "Overhead Allocation" means a fixed annual amount to compensate VWNA for Overhead Expenses. A.16 "Overhead Expenses" means the ongoing administrative costs and expenses of VWNA that are not attributed to any particular project or business activity but are nevertheless necessary for and incurred by VWNA to provide the services for OWNER and fulfill its obligations under the Agreement (e.g., the unallocated costs incurred at VWNA's corporate and regional departments for support, including technical services, purchasing (sourcing/procurement), human resources, finance, accounting, payroll, legal and risk management, IT, training, and environmental, health and safety as well as identifying opportunities for funding for this agreement and for any Capital Expenditures and the eventual plant rebuild of the wastewater plant from any and all sources). Specific regional support will be provided as set forth in the proposed organizational chart attached as Appendix E. A.17 "Project" means all equipment, vehicles, grounds, rights of way, sewers and facilities described in Appendix 8 and, where appropriate, the management, operations and maintenance of such. A.18 "Reimbursable Operating Expenses" means: (i) Labor Expenses; and (ii) Other Direct Expenses. A.19 "Repairs" means those nonroutine/nonrepetitive activities required for operational continuity, safety and performance generally due to failure or to avert a failure of the equipment, sewer,vehicles or facilities or some component thereof. A.20 "Unforeseen Circumstances" shall mean any event or condition which has an effect on the rights or obligations of the parties under this Agreement, or upon the Project, which is beyond the reasonable control of the party relying thereon and constitutes a justification for a delay in or non-performance of action required by this Agreement, including but not limited to (i) an act of God, landslide, lightning, earthquake, tornado, fire, explosion, flood, failure to possess sufficient property rights, acts of the public enemy, war, blockade, sabotage, insurrection, riot or civil disturbance, (ii) preliminary or final order of any local, province, administrative agency or governmental body of competent jurisdiction, (iii) any change in law, regulation, rule, requirement, interpretation or statute adopted, promulgated, issued or otherwise specifically modified or changed by any local, province or governmental body, (iv) labor disputes, strikes, work slowdowns or work stoppages, but excluding labor disputes, strikes, work slowdowns or work stoppages by employees of VWNA; and (v) loss of or inability to Agreement for Operations and Maintenance Services Page No.21 16.C.11.a Packet Pg. 1033 Attachment: Technical Assistance Interlocal Agreement - 12-12-2017 - Item 11E - Executed (6594 : Provide Technical Assistance Requested by 1 1 E obtain service from a utility necessary to furnish power for the operation and maintenance of the Project. A.21 "Waste" means all solid waste, screenings, grit, sludge, and scum produced as a by- product from the performance of operations and maintenance of the Project. Agreement for Operations and Maintenance Services Page No.22 16.C.11.a Packet Pg. 1034 Attachment: Technical Assistance Interlocal Agreement - 12-12-2017 - Item 11E - Executed (6594 : Provide Technical Assistance Requested by 1 1 E APPENDIX B DESCRIPTION OF PROJECT VWNA agrees to provide the services necessary for the management, operation, and maintenance of the following: a. All grounds and facilities now existing and all equipment and vehicles now existing and/or to be procured in accordance with Section 7.6 of the Agreement within the present property boundaries of or being used to operate: The Ground Water-Membrane Treatment Plan located at 15414 Janes Memorial Scenic Drive, Copeland, FL 34137, and the Wastewater Treatment Plant located at 401 S. Copeland Ave., Everglades City, FL 33929; b. All seventeen (17) lift stations, approximately two hundred fifty(250) grinder pump stations, low pressure/gravity sewers,force mains, and manholes in service on the Commencement Date; and Lift Stations Location/Name 1 612 Collier 2 Captains Table 3 Chokoloskee Master Station#1 4 Chokoloskee Master Station#2 5 Copeland Church 6 Estuary#1 7 Estuary#2 8 Everglades Isle#1 9 Everglades Isle#2 10 Everglades School 11 Fishermans Cove 12 Glades Haven 13 Outdoor Resorts 14 Parkway 15 Partners Cove 16 Subway Hwy 41 & Hwy 29, Carnestown 17 Sunset Cove c. All water lines, meters, hydrants and valves in services on the Commencement Date. Agreement for Operations and Maintenance Services Page No.23 16.C.11.a Packet Pg. 1035 Attachment: Technical Assistance Interlocal Agreement - 12-12-2017 - Item 11E - Executed (6594 : Provide Technical Assistance Requested by 1 1 E It is understood and agreed by both parties that this description is not complete and will not be complete until the asset management plan is developed. This Appendix will be deemed replaced by the asset management plan when that plan is completed. Agreement for Operations and Maintenance Services Page No.24 16.C.11.a Packet Pg. 1036 Attachment: Technical Assistance Interlocal Agreement - 12-12-2017 - Item 11E - Executed (6594 : Provide Technical Assistance Requested by 1 1 E APPENDIX C-1 NPDES PERMIT AND WASTEWATER TREATMENT CHARACTERISTICS C-1.1 VWNA will operate so that effluent will meet the requirement of NPDES Permit No. FLA027618 issued March 7, 2016, a full and complete copy of which is adopted by reference herein as of the date hereof. VWNA shall be responsible for meeting the effluent quality requirements of the Permit unless one or more of the following occurs: 1) the wastewater influent does not contain Adequate Nutrients to support operation of Project biological processes and/or contains Biologically Toxic Substances which cannot be removed by the existing process and facilities; (2) dischargers into OWNER's sewer system violate any or all regulations as stated in OWNER's Industrial Water and Sewer Ordinance(s) or as required by law; (3) the flow or influent BODS and/or suspended solids exceeds the Project design parameters which are 0.160 annual average million gallons of flow per day, TBD pounds of BODS per day monthly average, TBD pounds of suspended solids per day on a monthly average and a daily peaking factor of TBD times flow; (4) if the wastewater treatment facility and/or associated appurtenances is inoperable or can operate only at a reduced capacity on account of construction activities, fire, flood, adverse weather conditions, labor disputes or other causes beyond VWNA's control. C-1.2 VWNA will operate the water treatment plant according to State and Federal requirements. Agreement for Operations and Maintenance Services Page No.25 16.C.11.a Packet Pg. 1037 Attachment: Technical Assistance Interlocal Agreement - 12-12-2017 - Item 11E - Executed (6594 : Provide Technical Assistance Requested by 1 1 E APPENDIX D INSURANCE COVERAGE VWNA SHALL MAINTAIN: 1. Statutory workers compensation for all of VWNA's employees at the Project as required by the State of Florida. 2. Comprehensive general liability insurance, insuring VWNA's negligence, in an amount not less than $1,000,000 combined single limits for bodily injury and/or property damage. OWNER SHALL MAINTAIN: 1. Statutory workers compensation for all of OWNER's employees associated with the Project as required by the State of Florida. 2. Property damage insurance for all property including vehicles owned by OWNER and operated by VWNA under this Agreement. Any property, including vehicles, not properly or fully insured shall be the financial responsibility of OWNER. OWNER's property damage insurance shall contain a waiver of subrogation in favor of VWNA. 3. Automobile liability insurance for collision, comprehensive, and bodily injury. Each party will cause the other party to be added as additional insured on the above insurance policies and will require its insurance carrier to provide the other party at least thirty (30) days' notice of the cancellation of such policies. VWNA may self-insure reasonable deductible amounts under the policies it is required to maintain to the extent permitted by law. Each policy shall provide a waiver of subrogation in favor of the other party. Agreement for Operations and Maintenance Services Page No. 26 16.C.11.a Packet Pg. 1038 Attachment: Technical Assistance Interlocal Agreement - 12-12-2017 - Item 11E - Executed (6594 : Provide Technical Assistance Requested by 1 1 E APPENDIX E ORGANIZATIONAL CHART Agreement for Operations and Maintenance Services Page No. 1 16.C.11.a Packet Pg. 1039 Attachment: Technical Assistance Interlocal Agreement - 12-12-2017 - Item 11E - Executed (6594 : Provide Technical Assistance Requested by 16.C.11.b Packet Pg. 1040 Attachment: Technical Assistance Request (6594 : Provide Technical Assistance Requested by Everglades City) 16.C.11.b Packet Pg. 1041 Attachment: Technical Assistance Request (6594 : Provide Technical Assistance Requested by Everglades City)