Fort Walton Beach Council agenda — 06-09-09 regular — reading text

and fees as provided in Sections 3 and 4 herein. Responsibility for the capacity expansion of the Tertiary System shall be governed by Section 5( E). The County also shall be responsible for all capital costs of construction,capacity expansion, modification, upgrade, replacement, and repair of the APWRF, as is necessary to provide service to both the County Service Area and the City Service Area in such time and manner so as to serve the best interests of the affected residents. Notwithstanding the foregoing, if during the term of this Agreement the County shall come under any order of any state or federal agency that requires the County to limit or restrict construction of or connection to the APWRF because of conditions or operations at the APWRF, the City agrees to enforce and abide by such limitation or restriction as long as the same shall be binding upon the County and its other customers. The County agrees to take all steps reasonable, in the County' s discretion, to cure on a timely basis any defect resulting in the limitation or restriction imposed by the state or federal agency. E) The City shall continue to promulgate and enforce rules, standards, codes, and ordinances to regulate the development, construction, and use of the Collection System. The City shall pay all costs incurred to promulgate and enforce such rules, standards, codes, and ordinances and the County shall not be responsible for such costs. F) This Agreement provides for the County to accept delivery of, and to treat, all wastewater flows that the City delivers from the City Service Area to the County through approved Points of Connection. After the effective date of this Agreement, the City shall notify the Okaloosa Water and Sewer Department of any planning and /or development of the Collection negotiation meetings relating to future growth and 10- System. The City agrees to participate in meetings of the Okaloosa County Technical Review Committee whenever projects being reviewed by the Committee are located within the City Service Area. G) This Agreement does not relieve either party of any obligation or responsibility imposed by law except to the extent of actual and timely upon it performance thereof by a party, in which case the performance may be offered in satisfaction of the obligation or responsibility. H) While any Bonds of the City insured by Ambac Assurance Corporation AMBAC ") are outstanding in the hands of the holders thereof, the County agrees and covenants for the benefit of AMBAC and such holders to engage a firm of qualified and recognized consulting engineers, having a favorable repute for skill and experience in the construction and operation of wastewater treatment and disposal facilities ( the Consulting Engineers ") who shall provide the County and City with competent counsel maintenance of the affecting the proper, efficient and economical operation and wastewater treatment and disposal facilities and in connection with the making of capital improvements and renewals and replacements to such facilities. The County shall, at least every five years, cause to be prepared by the Consulting Engineers a report or survey of wastewater treatment and disposal facilities with respect to the management of the properties thereof, the sufficiency of the rates and charges for services, the proper maintenance of the properties of the wastewater treatment and disposal and the necessity for capital improvements and recommendations therefor. facilities, Such a report or survey shall also show any failure of the County to perform or comply with the covenants herein contained. If any such report or survey of the Consulting Engineers shall set forth that the provisions hereof or any reasonable recommendations of such Consulting Engineers have not been complied with, the County shall immediately take such reasonable steps as are necessary to comply with such requirements and recommendations. Copies of each report or survey shall be mailed to the City and AMBAC. SECTION 15. ENVIRONMENTAL COMPLIANCE. Both parties shall at all times comply with all local, state, and federal laws, permits, rules, and regulations including, but not limited to, permits, rules, and regulations issued by the Florida Department of Environmental Protection ( "FDEP "), or its successor in function, and any other governmental agency with applicable legal authority. SECTION 16. WASTEWATER QUALITY STANDARDS. The to entities discharging industrial wastes that City agrees require all contribute to the waste flow to the APWRF to pre -treat said waste to the requirements of applicable City ordinances and standards or the applicable County ordinances and standards, whichever is greater, as well as rules and regulations of FDEP, or its 11- successor in function, prior to any transmission to the APWRF. SECTION 17. DISCLAIMER OF THIRD PARTY BENEFICIARIES. This Agreement is solely for the benefit of the parties and no right or cause of action shall accrue to or for the benefit of any third party that is not a formal party hereto. Nothing in this Agreement, express or implied, is intended or shall be construed to confer upon or give any person or corporation other than the parties any right, remedy, or claim under or by reason of this Agreement or any provisions or conditions of it; and all of the provisions, covenants, and conditions herein contained shall inure to the sole benefit of and shall be binding upon the parties. SECTION 18. AUTHORITY. Each party represents and warrants that it, through its elected board, has the right, power, and authority to execute and deliver this Agreement and to perform all of the obligations stated in it. SECTION 19. NOTICE. Any notice or document required to be delivered under this Agreement shall be in writing and shall be deemed received by the other party at the earlier of the date actually received, or five ( 5) business days after the date deposited in a United States Postal Service depository, postage prepaid, registered or certified mail, addressed to the County or the City as the case may be, at the addresses set forth below: AS TO CITY OF FORT WALTON BEACH: City Manager City of Fort Walton Beach 107 Miracle Strip Parkway Fort Walton Beach, Florida 32548 AS TO COUNTY: County Administrator Okaloosa County 1804 Lewis Turner Boulevard, Suite 400 Fort Walton Beach, Florida 32547 12-  AS TO AMBAC: Ambac Assurance Corporation Attention: Surveillence 1 State Street Plaza New York, New York 10005 SECTION 20. ENTIRE AGREEMENT. This Agreement constitutes the entire wastewater agreement between the parties and supersedes all prior oral or written agreements pertaining to the collection, distribution, and treatment of wastewater that are now incorporated into this Agreement. All other provisions of agreements between the City and the County not pertaining to wastewater within the City Service Area remain in full effect and are not changed by this agreement. The parties recognize that over the term of this Agreement, extenuating circumstance may occur which requires the modification of this Agreement. The parties agree to work together, in a spirit of cooperation, to jointly resolve issues that may arise in the future. No amendment or modification of this Agreement shall be effective unless set forth in writing and executed by both parties. SECTION 21. FORCE MAJEURE. Neither party shall be in default of the terms of this Agreement if such action is due to a natural calamity, act of a government other than either of the parties, or similar force majeure causes beyond the control of either party. SECTION 22. GOVERNING LAW. The validity, construction, and performance of this Agreement shall be governed by the laws of the State of Florida. SECTION 24. COUNTERPARTS. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. SECTION 25. CONSTRUCTION. The parties acknowledge and agree that this Agreement has been drafted jointly by the parties and that no uncertainty or ambiguity as to the proper application or interpretation of the Agreement or any term herein is to be construed against either party as the drafter of the Agreement. 13- SECTION 26. VENUE. Venue for any action arising out of this Agreement shall be in Okaloosa County, Florida. SECTION 27. ASSIGNMENT. This Agreement shall not be assigned except by consent of the parties. SECTION 28. INDEMNIFICATION. A) Subject to the limitations provided in section 768. 28, Florida Statutes, and without otherwise waiving sovereign immunity, the City shall indemnify and hold harmless the County fromand against any and all third party claims, demands, damages, losses, and expenses, including attorney's fees and costs, arising out of the except for those claims, demands, damages, County' s participation in this Agreement, losses, and expenses arising out of the County's negligence, malfeasance, nonfeasance, or misfeasance. B) Subject to the limitations provided in section 768. 28, Florida Statutes, and without otherwise waiving sovereign immunity, the County shall indemnify and hold harmless the City from and against any and all third party claims, demands, damages, losses and expenses, including attorney' s fees and costs, arising out of the City's participation in this Agreement, except for those claims, demands, damages, losses and the nonfeasance, or expenses arising out of City's negligence, malfeasance, misfeasance. SECTION 29. SEVERABILITY. If any portion of the Agreement, the deletion of which would not adversely affect the receipt of any material benefit by either party, is for any reason held or declared to be invalid or unenforceable, such determination shall not affect the remaining portions of this Agreement. If this Agreement or any portion of this Agreement is held or declared to be inapplicable to any person, property or circumstance, such determination shall not affect its applicability to any other person, property or circumstance. 14- IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date and year first above written. CITY OF FORT WALTON BEACH Attest: 0 Helen Spencer, City Clerk Mike Anderson, Mayor Approved for form and legal sufficiency. City Attorney