Agenda 12/12/2017 Item #11E12/12/2017
EXECUTIVE SUMMARY
Recommendation to approve the Technical Assistance Interlocal Agreement between the County,
the Collier County Water and Sewer District, and the City of Everglades City.
OBJECTIVE: To assist the City of Everglades City with its water and wastewater utility.
CONSIDERATIONS: On February 21, 2017, FDEP met with staff to discuss the condition of the
Everglades water and wastewater utility system (“System”) and requested that Collier County assist in
solving significant problems and to help bring the utility back into compliance. Numerous discussions
between County staff, the City of Everglades City, and FDEP were held thereafter, and on March 3, 2017,
Collier County received a letter from FDEP formally requesting assistance and cooperation from Collier
County Public Utilities. On September 10, 2017, Hurricane Irma made landfall in the City causing
substantial damage to the City and the System. Since then, the parties have negotiated the attached
proposed Agreement. There are essentially two separate parts to the Agreement.
The first part of the Agreement has the Collier County Water and Sewer District (“District”) providing
Technical Assistance to the City, if and when requested by the City, to assist the City in managing the
System. The District will also work with the City to obtain grants for the System. The City will
compensate the District for this work if and when the City is able to do so.
The City has entered into an agreement with a private provider to operate the System. The second part of
the Agreement provides that if this agreement terminates, on request from the City the District will
automatically step in and operate and maintain the System as the City’s temporary emergency operator
for a three month period, with an optional extension of 3 months. The Agreement specifically provides
that in doing so the District is not obligated to use its funds to operate or maintain the System.
It is the opinion of Staff and the County Attorney that should the District step in as the City’s emergency
operator, from a practical standpoint it may prove difficult to extract itself from this endeavor; that
County or District funds may be necessary (and could be substantial) should public health issues arise;
and the end result may well be the permanent take-over of the System by the District.
FISCAL IMPACT: The Technical Assistance expenditures are reimbursable subject to the City's
discretionary determination of available funds. The Temporary Emergency Operator expenditures are
fully reimbursable. The long term implications of this partnership are both unknown and unpredictable.
City, County, and third party obligations for funding may be immaterial or in the tens of millions of
dollars.
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
GROWTH MANAGEMENT IMPACT: None specific to this action.
RECOMMENDATION: That the Board approves the proposed Technical Assistance Interlocal
Agreement between the County, the Collier County Water and Sewer District, and the City of Everglades
City.
Prepared by: Jeffrey A. Klatzkow, County Attorney
George Yilmaz, Public Utilities Department Head
12/12/2017
ATTACHMENT(S)
1. Everglades City Management Agreement Final (DOCX)
2. Exhibit A (PDF)
12/12/2017
COLLIER COUNTY
Board of County Commissioners
Item Number: 11.E
Doc ID: 4339
Item Summary: Recommendation to approve the Technical Assistance Interlocal Agreement
between the County, the Collier County Water and Sewer District, and the City of Everglades City.
(George Yilmaz, Public Utilities Department Head)
Meeting Date: 12/12/2017
Prepared by:
Title: Legal Assistant/Paralegal – County Attorney's Office
Name: Virginia Neet
12/04/2017 3:29 PM
Submitted by:
Title: County Attorney – County Attorney's Office
Name: Jeffrey A. Klatzkow
12/04/2017 3:29 PM
Approved By:
Review:
Office of Management and Budget Valerie Fleming Level 3 OMB Gatekeeper Review Completed 12/04/2017 3:35 PM
Budget and Management Office Mark Isackson Additional Reviewer Completed 12/04/2017 3:52 PM
County Attorney's Office Jeffrey A. Klatzkow Level 3 County Attorney's Office Review Completed 12/04/2017 4:22 PM
County Manager's Office Nick Casalanguida Level 4 County Manager Review Completed 12/05/2017 7:52 AM
Board of County Commissioners MaryJo Brock Meeting Pending 12/12/2017 9:00 AM
Page 1 of 10
TECHNICAL ASSISTANCE I N T ER LOC AL 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;
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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 “[t]o 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 thi s 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:
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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 tec hnical
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 th e Operations Period will not extend beyond the term of this agreement.
As City’s temporary emergency operator , District will (1) utilize th e State and/or Federal
and/or other funds consistent with the ter ms 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.
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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, t he 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
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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 6 of 10
(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:
Collier County Manager's Office
3299 Tamiami Trail East, Suite 202
Naples, FL 34112-5746
Phone: (239) 252-8383
To City:
City of Everglades City
P.O. Box 110
Everglades City, FL 34139
To County:
Collier County Manager's Office
3299 Tamiami Trail East, Suite 202
Naples, FL 34112-5746
Phone: (239) 252-8383
Page 7 of 10
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 WATER-SEWER DISTRICT
By: __________________________ By: ___________________________
Deputy Clerk PENNY TAYLOR, CHAIRMAN
Approved as to form and legality for the
Collier County Water-Sewer District:
_____________________________
Jeffrey A. Klatzkow
County Attorney
Page 8 of 10
Collier County:
ATTEST: BOARD OF COUNTY COMMISSIONERS
DWIGHT E. BROCK, CLERK COLLIER COUNTY, FLORIDA
By: By:
, Deputy Clerk PENNY TAYLOR, CHAIRMAN
Approved as to form and legality for
Collier County:
______________________________
Jeffrey A. Klatzkow
County Attorney
Page 9 of 10
City of Everglades City
ATTEST: City of Everglades City
By: __________________________ By: __________________________
Dottie Joiner, City Clerk HOWELL GRIMM JR., MAYOR
City of Everglades City
Approved as to form and legal sufficiency
for the City:
_____________________________
City Attorney for the City of Everglades City
Page 10 of 10
Exhibit A
VWNA Operations Agreement
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
“OWN ER”)
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
“VWNA”).
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
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
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
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
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
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
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-i.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
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
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
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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
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 ($45,077.00).
7.2 The Overhead Allocation shall be adjusted annually by multiplying the existing Overhead
Allocation by the greater of either one hundred two percent (multiply by 1.02),or one plus
the percentage change in the Consumer Price Index for all Urban Consumers (U.S.City
Average)-All Items -not seasonally adjusted (CUUR0000SAO)as published by the U.S.
Department of Labor Statistics three months and fifteen months prior to the beginning of
the period for which the adjusted Overhead Allocation is being calculated.
7.3 On or prior to the Effective Date VWNA will provide OWNER with a proposed Facilities Budget
for Fiscal Year 2017-2018.If the Agreement is extended per section 9.1,with respect to
each Fiscal Year following the Fiscal Year that will end September 30,2018,VWNA shall,on
or before three months prior to the beginning of each Fiscal Year,furnish to OWNER a
Facilities Budget for the Fiscal Year that begins on the immediately succeeding first day of
the Fiscal Year.If the Facilities Budget reflects an increase in average wage rate ($/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
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 OWN ER 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
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-i 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
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
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
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mee a 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~~~ZE5
Name:ci-~,e,..,
lite:≤A~0 /~
Date:012
OWNER
Mayor
~frL~,4~v
ncilpe rson
Councilperson
ATTEST:Councilperson~i
Agreement for Operalions and Maintenance Services Page No.16
Counci person
Councilperson
Dottie Joiner,:Ierk
Agreement for Operations and Maintenance Services Page No.17
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:/7 /~)
Counsel for OWNER
Agreement for Operations and Maintenance Services Page No.18
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
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
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 B 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
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
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
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
APPENDIX C-i
NPDES PERMIT AND
WASTEWATE R TREATMENT CHARACTERISTICS
C-l.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 BOD5 and/or
suspended solids exceeds the Project design parameters which are 0.160 annual
average million gallons of flow per day,TBD pounds of BOD5 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
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
APPENDIX E
ORGANIZATIONAL CHART
Agreement for Operations and Maintenance Services Page No.1
CorporateSupportEVERGLADESCITY,FLReg~onaISupport
APPENDIX F
OWNER DIRECT PURCHASE PROGRAM
Agreement for Operations and Maintenance Services Page No.I
Owner Directed Purchase Program
1.Owner Direct Purchase Program
1.01 Except for Capital Expenditures required to immediately address an emergency under
Section 2.12,VWNA shall comply with and fully implement the Owner Direct Purchase Program
with respect to this Agreement,as set forth below.
1.02 Notwithstanding anything herein to the contrary,because OWNER is exempt from sales
tax and wishes to generate and benefit from sales tax savings for this Agreement,OWNER
reserves the right to make direct purchases of Capital Expenditures required by this Agreement
as permitted by the Florida Department of Revenue (“FDOR”)regulations on Owner Direct
Purchases for Public Works Contracts.
1.03 VWNA shall pay,and OWNER shall reimburse,all sales,consumer,use,and other similar
taxes associated with this Agreement or portions hereof,which are not purchased through
Owner Direct Purchase Program during the performance of this Agreement.
1.04 VWNA shall use its reasonable efforts to cooperate with OWNER in implementing this
Owner Direct Purchase Program in order to maximize cost savings for this Agreement.Any
Capital Expenditures made under this Agreement may be made through the Owner Direct
Purchase Program,at OWNER’s sole option.
1.05 If VWNA does not use its reasonable efforts,or fails to implement this Owner Direct
Purchase Program for Capital Expenditures for reasons within VWNA’s reasonable control,
VWNA shall reimburse OWNER the sales tax costs incurred as a result of failing to implement
this Owner Direct Purchase Program as well as any markup thereon.
1.06 VWNA or its subcontractor/vendors shall prepare a Request for Purchase Order Package
directly to the OWNER for execution of a Purchase Order.OWNER shall then execute and issue
a copy of the purchase order and Certificate of Entitlement to VWNA and its
subcontractors/vendors for their retention.VWNA shall allow fifteen (15)business days for
execution of all such purchase orders by OWNER,unless City Council approval is required,in
which case,OWNER shall have until the next regularly scheduled City Council meeting.
1.07 With respect to all direct purchases by OWNER,OWNER shall remain responsible for
submittals,coordinating,ordering,scheduling delivery,inspecting,accepting delivery,insuring,
storing,handling,installing,warranting and quality control for all direct purchases.The
administrative procedures for this sales tax savings program are more specifically outlined in
section 12A-1.094,Florida Administrative Code.
1.08 VWNA will charge to the OWNER an Administrative Fee on Capital Expenditures to cover
our costs of sourcing and procurement efforts,and any other additional storing,handling,
installing,warranting and quality control of the Owner’s Direct Purchases.VWNA will submit a
proposal of our expected Administrative Fee for approval by OWNER.OWNER retains the
option to bid or otherwise procure and manage the Capital Expenditures work in-house.
1.09 Notwithstanding any other provisions of this Agreement,OWNER shall be liable for any
tax,penalty,and/or interest determined to be due by the FDOR for any tangible personal
property purchased through the Owner Direct Purchase Program pursuant to a Certificate of
Entitlement issued by the OWNER that is determined by the FDOR to not meet the
requirements of the sales tax exemption under section 212.08(6),Florida Statutes.Nothing
contained in this Agreement shall be interpreted as a transfer of this liability to the VWNA or its
subcontractors/vendors.
1.10 The Parties agree that they will abide by any new FDOR regulations,statutes or other rules
or regulations governing the Owner Direct Purchase Program that apply to this Agreement.
TotalEstimatedCostMarkupPercentacieVeoliaMaintenanceManagerVeoliaProjectManagerEvergladesCityRepresentativeAuthorizationRequestDispositionEvergladesCityRepresentative$$DatePreparedDateSubmittedDateReceivedDateDateOL’AVeoliaREQ#IEvergladesCity,Florida~o#___________wIO#_________Authorization_RequestProjectDescription:1)Mitigationofsafetyissue.2)MitigationofNPDESPermitnon-complianceissue.Purpose:3)MitigationofConsentOrderissue.Replacement/Repair&Maintenanceofcriticalcomponent.RoutineRepairandMaintenance.Problem:Solution:EffectofDisapproval:Alternative:OwnerDirectPurchase:~lYesLIINoIVendorName:Phone:P0#assignedVendorAddress:DateissuedDescriptionItemNumber/ModelQtyUnitPriceUnitMeasTotalLOCATIONea$-ea$-ea$-ea$-ea$-ea$-ea$-Subtotal$-EstimatedSalesTaxes7.00%$-Total$LIIApprovedI~DeniedI