DISCLAIMER:
The following document is a reproduction of the
Pinellas County Interlocal Agreement with the Suncoast Transit Authority
approved by the Pinellas County Commission.
NO COMMENTS
HAVE BEEN ADDED TO THIS VERSION OF THE DOCUMENT
It has been reformatted and indexed to make it easier
for you to find Sections and Subjects.
There have been no knowing changes to document text. If
readers find discrepancies between this text and the approved text please mailto:dr.webb@verizon.net
Readers desiring a WORD document copy of this text
should e-mail dr.webb@verizon.net and the WORD document will be provided
TABLE OF CONTENTS
INTERLOCAL AGREEMENT
TRANSMITTAL
GREENLIGHT PINELLAS
TRANSIT SURTAX INTERLOCAL AGREEMENT
RECITALS:
SECTION 1. CONDITION PRECEDENT.
SECTION 2. DEFINITIONS.
(A) Agreement
(B) Business
Day
(C) Change
in Law
(D) Clerk
(E) County
Infrastructure
(F) Department
(G) Fiscal
Year or FY
(H) Force
Majeure
(I) Milestone
Schedule
(J) PSTA
's Greenlight Plan
(K) Party
and Parties
(L) Surtax
(M) Surtax
Net Proceeds
(N) Transportation Infrastructure
(0) Transportation System
Surtax Trust Fund
SECTION 3.
USE OF SURTAX
NET PROCEEDS
SECTION 4.
DISTRIBUTION AND FINANCIAL MANAGEMENT OF THE SURTAX NET PROCEEDS
SECTION 5.
DUTIES OF THE CLERK.
SECTION 6.
PSTA's AD VALOREM TAXING AUTHORITY
SECTION 7.
PLEDGE OF SURTAX NET PROCEEDS.
SECTION 8.
MILESTONE SCHEDULE
SECTION 9.
REDUCTION AND TERMINATION OF SURTAX.
SECTION 10.
OTHER ACTIONS REQUIRING COUNTY CONSENT
SECTION 11.
FEES, COSTS AND EXPENSES.
(1) PSTA's notification to the County
(2) The County's right to approve plans
(3) The
County's right to review all bids
(4) The County's right to participate in project
meetings
(5) The
County's right to inspect the portions of any
project
SECTION 12.
BUDGET, AUDIT AND REPORTS.
SECTION 13.
MAINTENANCE AND PRESERVATION OF FACILITIES AND ASSETS.
SECTION 14.
INSURANCE.
SECTION 15.
COMPLIANCE WITH LAWS.
SECTION 16.
INDEMNIFICATION.
SECTION 17.
FORCE MAJEURE
SECTION 18.
DUE AUTHORITY
SECTION 19.
ASSIGNMENT.
SECTION 20.
NOTICES.
SECTION 21.
WAIVER.
SECTION 22.
GOVERNING LAW.
SECTION 23.
BINDING EFFECT.
SECTION 24.
THIRD-PARTY BENEFICIARY.
SECTION 25.
HEADINGS.
SECTION 26. NO
CONSTRUCTION
SECTION 27.
ENTIRE AGREEMENT
SECTION 28.
SEVERABILITY.
SECTION 29. NO
IMPAIRMENT; LIMITATION ON DISTRIBUTION REDUCTIONS.
SECTION 30.
DEFAULT AND REMEDIES FOR DEFAULT.
SECTION 31.
COUNTERPARTS.
SECTION 32.
TERMINATION.
SECTION 33.
FILING OF AGREEMENT.
SIGNATURES
EXHIBIT A MILESTONE
SCHEDULE
INTERLOCAL AGREEMENT
TRANSMITTAL
TO: The Honorable
Chairman and Members of the Board of County Commissioners
FROM: James L. Bennett, County Attorney
SUBJECT: DATE: Recommendation to Approve
the Transit Surtax Interlocal
Agreement with the
Pinellas Suncoast Transit Authority
DATE: June 3, 2014
RECOMMENDATION:
I RECOMMEND THAT
THE BOARD OF
COUNTY COMMISSIONERS APPROVE
THE ATTACHED TRANSIT
SURTAX INTERLOCAL AGREEMENT
BETWEEN PINELLAS COUNTY
AND THE PINELLAS
SUNCOAST TRANSIT AUTHORITY.
DISCUSSION: The Board
adopted Ordinance No. 13-34 on December
10, 2013, which
levies the Charter
County and Regional
Transportation Surtax ("Surtax")
at the rate
of one percent
( 1%) subject
to referendum approval. That referendum is scheduled for November 4, 2014.
The intent of
the Board, as
expressed both in
Resolution No. 13-19
and Ordinance No. 13-34, in placing
the referendum question on the ballet is
to provide a funding
source for countywide
transportation projects, specifically those outlined
in the Greenlight
Pinellas Plan.
The Greenlight Pinellas Plan ("Plan")
was developed by the Pinellas Suncoast Transit Authority ("PSTA"), a countywide
transportation authority created by special
act of the Legislature. The Plan
calls for the
development, construction, and operation
of public transit
benefitting Pinellas County, including an expanded
bus system with
bus rapid transit,
increased frequency and extended
hours, and local
passenger rail and
regional connections. The Plan
calls for funding
of this transit
system with proceeds
collected through the Surtax.
The interlocal agreement before the
Board for action
is between the County
and PSTA, and
provides for distribution
of Surtax proceeds
received by the County from
the Department of Revenue
to the PSTA.
In addition to distributing the funds, the interlocal:
Provides that the County
can withhold distribution of the Surtax proceeds
and/or reduce the
Surtax levy if
PSTA exercises its ad valorem taxing authority
Allows PSTA to pledge
the Surtax proceeds
to secure any
debt or other
obligations incurred by PSTA
for its Green
light Plan
Provides for the reduction
and/or termination of the Surtax upon
the occurrence of certain
defined events
Requires County consent
in order for
PSTA to undertake
certain defined activities
Provides reimbursement to the County for
costs incurred in support
of the Greenlight
Plan
Sets forth a schedule
of critical milestones for Greenlight
Plan
County staff has collaborated
with PSTA staff
over the last
several months to
develop the inter
local attached to this
memo. It is recommended that the
Board approve the interlocal,
authorize the Chair
to sign, and
transmit the inter
local to the PSTA for
its approval.
GREENLIGHT PINELLAS TRANSIT
SURTAX INTERLOCAL AGREEMENT
THIS
GREENLIGHT PINELLAS TRANSIT
SURTAX INTERLOCAL AGREEMENT ("Agreement") is made
and entered into this
day of June
2014, by and between PINELLAS COUNTY, a political
subdivision of the State of
Florida, hereinafter referred to as the "County,"
and the PINELLAS
SUNCOAST TRANSIT AUTHORITY, an independent
special district created by Chapter
2000-424, Laws of
Florida, as amended,
and a transportation
authority for purposes
of Section 212.055(1), Florida Statutes, hereinafter referred to as "PSTA."
RECITALS:
WHEREAS, Section
212.055(1), Florida Statutes, authorizes the County
to impose a
Charter County and
Regional Transportation System Surtax
("Surtax") of up to one percent (1 %) throughout the County,
subject to referendum
approval, to fund
countywide transportation projects; and
WHEREAS, the County's Board of
County Commissioners adopted Ordinance No. 13-34
on December 10, 2013,
levying the Surtax
subject to elector
approval at a rate of
one percent; establishing the effective
date of the Surtax; providing for administration,
collection, and enforcement
of the Surtax;
providing for the
distribution, use and
financial management of Surtax
proceeds; calling for a referendum election for approval
of imposition of the Surtax on
November 4, 2014
(the "Surtax Referendum"); and providing
a ballot title
and summary of the proposed referendum question (the "Ordinance");
and
WHEREAS, pursuant to Chapter
2000-424, Laws of
Florida, as amended
("Special Act"), PSTA has
the authority to plan,
develop, improve, construct, maintain, operate, and finance
a public transit
system, as that
term is defined
therein; and
WHEREAS, PSTA has developed
a plan for
the development, improvement, construction, equipping, operation, maintenance and financing
of public transit
benefitting the County
including an expanded
bus system with
bus rapid transit,
increased frequency and extended
hours, and local
passenger rail and
regional connections, which is
commonly referred to as the "Greenlight
Pinellas Plan;" and
WHEREAS, pursuant
to Chapter 163, Florida
Statutes, counties, cities, public authorities,
and other political
subdivisions are authorized
to enter into
interlocal agreements among and
between themselves in order
to make the
most efficient use of their powers
and enabling them to
cooperate with other
governmental entities; and
WHEREAS, the County and
PSTA desire to
equitably determine and to contract and provide
herein the manner
in which the
proceeds from the
Surtax shall be
distributed to PSTA
and the use
to which those
proceeds may be made by
PSTA.
NOW, THEREFORE, in consideration
of the mutual
covenants of this
Agreement, and other
good and valuable
consideration, the receipt
of which is
hereby acknowledged, the County
and PSTA agree,
each with the
other, as follows:
SECTION 1. CONDITION PRECEDENT. This Agreement
shall be effective
upon execution by the parties and approval
of the Surtax
by the voters
of the County
at the Surtax
Referendum ("Effective Date").
SECTION
2. DEFINITIONS. As used
herein, the following
terms or phrases
shall have the
meaning ascribed below:
(A) Agreement
shall mean this
Interlocal Agreement, as amended
or supplemented from time
to time.
(B) Business
Day shall mean any
day other than
a Saturday or Sunday
or legal holiday
or a day on which
the principal office of
the County or PSTA
is closed.
(C) Change
in Law shall mean the
enactment, adoption, promulgation, modification or repeal,
after the Effective
Date, of any federal or state
law that: (i)
substantially and materially
limits PSTA's delivery
of transit or transportation
services described in PSTA's
Greenlight Plan; or
(ii) substantially and materially
limits the County's
performance of its obligations pursuant to Section
3 herein; or (iii)
invalidates or terminates
the levy of
the Surtax by
the County; provided, however, a "Change
in Law" shall not
have been deemed
to have occurred
hereunder if PSTA
shall be diligently
prosecuting a lawsuit
challenging the legality
of such enactment,
adoption, promulgation, modification or repeal,
including participation in any related appeals.
(D) Clerk shall mean
the Pinellas County Clerk
of the Circuit
Court and Comptroller
of Pinellas County, Florida.
(E) County
Infrastructure shall mean the
County-owned assets generally
described in Exhibit
B attached hereto as
that Exhibit may be amended from time
to time in
order to include
assets that may
not exist as
of the effective
date of this
Agreement.
(F) Department shall mean the Florida Department of Revenue.
(G) Fiscal
Year or FY shall mean
October I through
and including the following
September 30.
(H) Force
Majeure shall mean a Change in
Law or any other act,
event or condition
that prevents either Party
from substantially and materially
being able to
perform the applicable
Party's obligations under this
Agreement, to the extent such act,
event or
condition is due to circumstances
beyond the reasonable
control of the
Party asserting a
Force Majeure as
justification for being
prevented from performing
such obligations; provided,
however, such act,
event or condition
is not the
result of such
asserting Party's failure
to perform its
obligations hereunder in
accordance with the
terms and conditions
of this Agreement.
(I) Milestone
Schedule
shall mean the
schedule of milestones
attached hereto as
Exhibit A, as
the same may be amended
and supplemented from
time to time.
(J) PSTA
's Greenlight Plan shall
mean PSTA's plan,
including the Greenlight
Pinellas Plan, the
Community Bus Plan,
the Pinellas Alternatives
Analysis, the Greenlight
Pinellas Financial Plan,
and the Light
Rail Station Development
Concepts, as filed
with the Clerk
as of the
date hereof, all
of which were
developed and approved
by PSTA, that
addresses the planning,
development, improvement, construction,
equipping, operation, maintenance
and financing of
local passenger rail
and regional connections
and/or an expanded
bus system with
bus rapid transit,
increased frequency and
extended hours, as
the same may
be amended and
supplemented from time
to time subject
to the provisions
of Section 10
hereof.
(K) Party
and Parties shall
mean the local
governments that have
entered into this
Agreement, either singularly
or collectively.
(L) Surtax shall mean the
one percent (1 %) Charter
County and Regional
Transportation System Surtax
imposed pursuant to the Ordinance.
(M) Surtax
Net Proceeds shall
mean the amount
of Surtax proceeds
received by the
County from the
Department.
(N) Transportation Infrastructure shall
mean all land,
roads, rights-of-way, easements,
other interests in
real property, buildings,
facilities, stations, stops,
buses, trains, rolling
stock, vehicles, tracks,
guideways, utility systems,
equipment, communications and
technology hardware, software
and/or systems, and
any other real
or tangible or
intangible personal property
required to design,
plan, permit, develop,
operate, maintain, repair,
and replace buses,
bus rapid transit,
express buses, commuter
and/or passenger rail
and other transit
or transportation services
and systems provided
by PSTA and
eligible to be
funded by the
Surtax as provided
for in accordance
with Section 3
of the Agreement.
(0) Transportation System
Surtax Trust Fund shall
mean the trust
fund created by
the Ordinance to be held
by the Clerk
solely for receipt
and distribution of
the Surtax Net
Proceeds in accordance
with the terms
of the Ordinance
and this Agreement.
SECTION 3.
USE OF SURTAX
NET PROCEEDS.
Notwithstanding any
other provision of
this Agreement, the
County and PSTA
agree that all
Surtax Net Proceeds,
including any interest
earnings thereon, and/or
proceeds of any
bonds, notes, loans,
lines of credit
or other indebtedness
secured thereby, including
any interest earnings
thereon, shall be
expended by each
Party only as
expressly permitted by
this Agreement, Section
212.055(1 ), Florida
Statutes, and the
Ordinance.
SECTION 4. DISTRIBUTION AND FINANCIAL MANAGEMENT OF THE
SURTAX NET PROCEEDS
(A)
Upon receipt, the
County shall deposit
the Surtax Net
Proceeds into the
Transportation System Surtax
Trust Fund to
be held by
the Clerk for
distribution to PSTA
in accordance with
the Ordinance and
this Agreement
(B) Unless
otherwise provided in
Sections 6 or
9 hereof, all Surtax Net
Proceeds shall be
distributed to PSTA
in accordance with
Section 5 hereof,
to be used
by PSTA for
the planning, development,
improvement, construction, operation,
and maintenance of
local passenger rail
and regional connections
consistent with PSTA's
Greenlight Plan, PSTA's
present and future
bus service, and/or
an expanded bus
system with bus
rapid transit, increased
frequency and extended
hours consistent with
the PSTA's Greenlight
Plan, and to
make payments to
service indebtedness (including
indebtedness refinancing such
indebtedness) or satisfy
other financial obligations,
including without limitation
any concession, lease
or other payments
to be made
by PSTA under concession, lease
or similar agreements,
all in connection
with PSTA's Greenlight
Plan and all as authorized
by Section 212.055(1
), Florida Statutes
and other applicable
law.
(C) PSTA
agrees to use
its best efforts
to maximize state
and federal grants,
donations of rights-of-way, construction
of stations, public
private partnerships, and any
and all similar
resources in order
to leverage the
Surtax Net Proceeds
to their fullest
extent.
SECTION 5. DUTIES
OF THE CLERK.
The Clerk
shall receive the
Surtax Net Proceeds
from the Department
and act as
trustee thereof and
shall retain all
Surtax Net Proceeds
in the Transportation System
Surtax Trust Fund
until disbursed in
accordance with the
Ordinance and this
Agreement. Disbursements of
the Surtax Net
Proceeds pursuant to
the Ordinance and
this Agreement shall
be made to
PSTA by the
Clerk within five
(5) business days
of receipt by
the Clerk of
the Surtax Net
Proceeds from the
Department. PSTA reserves
the right to
conduct an audit
of the Surtax
Net Proceeds received
by the Clerk
and distributed to PSTA.
SECTION 6. PSTA's
AD VALOREM TAXING AUTHORITY
(A) PSTA
(i) will, prior
to the Surtax
Referendum, continue to
acknowledge to the
voters of the
County that it intends not
to impose an
ad valorem tax
pursuant to the
authority granted by
its Special Act
for Fiscal Year
2016 and thereafter,
as long as
the Surtax is
not repealed and
PSTA continues to
receive Surtax Net
Proceeds, and (ii)
agrees to use
its best efforts
to have its
Special Act amended
to eliminate its
ad valorem taxing
authority, effective upon PSTA's receipt
of Surtax Net
Proceeds. The County
agrees to support
PSTA in its
effort to so
amend its Special
Act.
(B) If
PSTA elects to
impose an ad
valorem tax pursuant
to the authority
granted by its
Special Act while
the Surtax is
being collected and PSTA is
entitled to receive
Surtax Net Proceeds,
the County shall
be entitled to
reduce the Surtax
Net Proceeds distributed
to PSTA in the amount
of the ad
valorem taxes collected
by PSTA in
each Fiscal Year
in which it
imposes an ad
valorem tax. If PSTA discontinues
such ad valorem
tax levy, in
the County's sole
discretion, the County
may begin distributing
the full amount
of the Surtax
Net Proceeds to PSTA.
(C)
Notwithstanding the foregoing
or any other
provision of this Agreement, in
the event PSTA
imposes an ad
valorem tax as
contemplated by this
Section 6, the
County may take
any action it
deems necessary and is legally
required to permanently
reduce the levy
of the Surtax;
provided, however, the
County shall use
its best efforts
to ensure that
at the time
any such
permanent reduction is
made, the reduction
shall not exceed
the amount of
ad valorem taxes
collected by PSTA
in the immediately
prior Fiscal Year.
(D) If
PSTA's Special Act is amended
to eliminate PSTA's
authority to levy
an ad valorem tax
on real property
in the County,
this Section 6
shall be of
no further force
and effect.
SECTION 7. PLEDGE
OF SURTAX NET PROCEEDS.
(A)
In order to
finance or refinance
projects, PSTA may
issue bonds or
notes, enter into
lines of credit,
incur loans or
other indebtedness, enter
into concession, lease
or similar agreements,
and may secure
payment obligations under
such bonds, loans,
notes, lines of
credit or other
indebtedness or pursuant
to such concession,
lease or similar
agreements with a
pledge of and
lien on the Surtax Net
Proceeds in accordance
with the provisions
of Section 212.055(1), Florida
Statutes, and other
applicable law, including
any indebtedness refinancing
such bonds, loans,
notes, lines of
credit or other
indebtedness. Prior to
the initial issuance
of any indebtedness
by PSTA, the
Pinellas County Attorney
shall approve the
trust agreement or
trust indenture (the
"Trust Agreement") pursuant
to which such
indebtedness is to
be issued. The
County and PSTA
agree that it is
their intent that
such approval be
provided by the
County Attorney prior
to the date
of the Surtax
Referendum. Notwithstanding the
foregoing, PSTA shall
at all times
comply with its
debt policy referred
to in Section
10 hereof.
(B) Notwithstanding anything
herein to the
contrary, to the
extent permitted by
law, in order
to effectuate the
purposes in PSTA's
Greenlight Plan, PSTA
may enter into
leases or public
private partnerships with
concessionaires, and may
secure its obligations
to make lease,
concession and other
payments under lease
and concession agreements
with a pledge
of and lien
on the Surtax
Net Proceeds in
accordance with the
provisions of Section
212.055(1 ), Florida
Statutes. (C) Nothing
contained herein shall
be construed to
limit the amount
of indebtedness that
may be incurred
by PSTA to
be secured by
the Surtax Net
Proceeds.
SECTION 8.
MILESTONE SCHEDULE.
PSTA and the
County hereby approve
the Milestone Schedule.
PSTA shall promptly
notify the County
as soon as
it reasonably believes
that any milestone
set forth in
the Milestone Schedule
is likely not
to be timely
achieved. Upon such
notification or upon PSTA's failure
to achieve timely
any milestone set
forth in the
Milestone Schedule, PSTA
and the County
shall meet as
soon as practicable
to discuss the
reasons for PSTA
not timely achieving
the milestone and
the effect of
doing so on PSTA's progression
on PSTA's Greenlight
Plan. If the
County and PSTA
are unable to
agree to a
resolution or an
amendment to the
Milestone Schedule, a
nationally recognized transit
consultant, approved by PSTA and
the County will
be retained, at
the sole cost
and expense of PSTA. Within
sixty (60) days
of having been
retained and approved,
or such longer
time as is
reasonably necessary, such
transit consultant shall
make written recommendations to the parties
on methods PSTA
should utilize in the future
to achieve
the relevant milestone(s),
to achieve in
a timely manner
future milestones, and/or
to revise the
Milestone Schedule, as
appropriate. PSTA and
the County agree
to promptly implement
the recommendations of
such transit consultant
to achieve the
relevant milestone(s), to
achieve in a
timely manner future
milestones, and/or to
revise the Milestone
Schedule, as appropriate,
as such recommendations are
modified by mutual agreement of
the Parties, and to the
extent such recommendations are
permitted by law
and existing contractual
obligations of PSTA.
Prior to the 10th anniversary
of this Agreement,
the Parties shall
prepare a new,
mutually agreeable Milestone
Schedule consistent with
PSTA's Greenlight Plan
that will become
effective on the 10th anniversary
of this Agreement.
SECTION 9. REDUCTION
AND TERMINATION OF SURTAX.
Upon the earlier
of:
(A) completion
of all steps
to finance (including
without limitation debt
incurrence, and/or execution
of public-private partnerships
or leases), acquire, and/or
construct all projects
and capital improvements
contemplated in PSTA's
Greenlight Plan, as
mutually determined by PSTA and
the County (if
the parties cannot
mutually determine whether
PSTA's Greenlight Plan
has been completed,
the parties shall
engage a nationally
recognized transit consultant
acceptable to both
Parties to make
such determination);
(B) PSTA's
decision to discontinue
such steps to
finance, acquire and/or
construct substantially all of the
projects and capital
improvements contemplated in PSTA's Greenlight
Plan;
(C) the occurrence of
a Force Majeure;
(D) the
fiftieth 50th anniversary
of the date
the Surtax is first levied
and each 20th
anniversary thereafter;
(E) a payment
default under the
Trust Agreement; or
(F) PSTA
applying Surtax Net
Proceeds for a
purpose other than PSTA's Greenlight
Plan,
the County
and PSTA shall
meet to discuss
the particular event
described in clauses
(A) through (F)
that has occurred
and shall consider,
depending upon the
event, revising this
Agreement, revising or
adding to PSTA's
Greenlight Plan, seeking
further authorization for
additional uses by
PSTA of the
Surtax Net Proceeds
or reducing or
increasing, if there
has been a
previous reduction and
subject to the
limitations of the
Surtax Referendum, temporarily
or permanently, the
Surtax Net Proceeds.
If the Parties
are unable to
agree on what
action, if any,
to take, after
making a good
faith effort, the
County may take
any legally required
action to reduce
the Surtax Net
Proceeds distributed to PSTA. In
determining what action
to take, if
any, pursuant to
this Section 9,
the Parties shall
comply with the
provisions of Section
29(B) hereof.
Any reduction
of Surtax Net
Proceeds distributed to PSTA as
a result of
an action or
event described in
clauses (C), (E) or (F)
above shall be
temporary and the
County shall promptly
begin distributing the
full amount of
the Surtax Net
Proceeds to PSTA,
including all amounts
that were held
back and actual
interest earnings, if
any, actually derived
by the County,
when the County
determines, in its sole
discretion, that such
event or action
has been cured
or no longer
exists. The foregoing
shall not impose
a duty on
the County to
invest any of
such withheld amounts.
The County shall
determine, in its sole
discretion, whether any
reduction of Surtax
Net Proceeds distributed
to PSTA as
a result of
an action or event described
in clauses 6 (A), (B) or
(D) will be
temporary or permanent.
If the County
determines to permanently
reduce the distribution
of the Surtax
Net Proceeds, to
the extent and
as permitted by
law, it may
take such action
as it deems
necessary and is
legally required to
reduce the amount
of the Surtax
levy in accordance
with this Section.
Notwithstanding anything in
this Section 9
to the contrary,
any temporary reduction
shall be limited
to an amount
that will not
impair PSTA's ability
to meet all
of its then
outstanding financial obligations
under the Trust
Agreement.
SECTION 10. OTHER
ACTIONS REQUIRING COUNTY CONSENT.
The following
actions shall require
prior written consent
of the County,
unless and until
the Surtax levy
is terminated pursuant
to Section 9:
(A) Any
amendment to PSTA's
enabling legislation that
would amend the
membership of the PSTA Board of
Directors so as
to reduce the
percentage of representation of
the County on
the PSTA Board
of Directors to
less than thirty-three
percent (33%) or
that would otherwise
be materially adverse
to the County
hereunder, and that
is initiated by
PSTA through a
vote of its
Board of Directors.
(B) Any substantial amendment to PSTA's
Greenlight Plan.
(C) PSTA's
entering into any
joint venture or
partnership (other than a public-private partnership)
or interlocal agreement
with respect to PSTA's Greenlight
Plan that is
materially adverse to
the interests of
the County.
(D) PSTA's
debt and investment
policies, which shall
be provided to
the County prior
to the distribution
of any Surtax
Net Proceeds to PSTA hereunder,
and any material
amendments thereto.
(E) Any
amendment to the
Trust Agreement which
would be materially
adverse to the
County; provided, however,
notwithstanding the foregoing,
only consent of the County
Attorney shall be
required with respect
to this Section
10(E).
PSTA shall
provide written notice
to the County
when seeking approval
of any action
requiring County approval
pursuant to this
Section. The County
shall either approve
or deny the
consent request in
writing in a
timely manner. When
requested by PSTA
to approve or
consent to any
of the items
in this Section
10, the County
shall use its
best efforts to
provide either written
approval or denial
in the timeframe
requested by PSTA,
so long as
the requested timeframe
is reasonable. If
the County is
unable to provide
its written approval
or denial within
the timeframe requested
by PSTA, the
County shall so
advise PSTA in
writing and provide
an estimate of
the time necessary
to respond to
PSTA's request. Notwithstanding anything
contained herein to the contrary,
the County shall
not unreasonably delay
any approval, shall
not unreasonably withhold
any approval, shall
not cause PSTA
to be in
breach of any
agreement, law, regulation
or jeopardize PSTA's
ability to cost
effectively incur debt
as contemplated by PSTA's Greenlight
Plan or cause
any of the
events set forth
in Section 9
(C), (E) and
(F) in exercising
its right to
participate in and
approve any of
any of the items in
Section 10.
(A) PSTA
shall reimburse the
County for the
fees, costs and
expenses incurred by
the County with
respect to all
actions relating to
the enactment of
the Ordinance, the
negotiation, execution and
delivery of this
Agreement and all
other matters related
thereto through and
including the validation
of the initial
issuance of bonds
for PSTA's Greenlight
Plan, including, without
limitation, the fees
and expenses of bond counsel
or other outside
counsel, its financial
advisor, and all
similar fees, costs
and expenses. The
total sum to
be paid by PSTA pursuant
to this Section
11 shall not
exceed the sum
of One Hundred
Thousand Dollars ($100,000.00). The
amount due under
this Section 11
shall be made
in a one-time
payment and is
due only upon
passage of the
Surtax Referendum and
after PSTA begins
to receive Surtax
Net Proceeds in
accordance with the
Ordinance and this
Agreement.
(B) While
any of the
Surtax Net Proceeds
are being withheld
by the County
pursuant to Section
9 hereof, all
costs and expenses
incurred by the
County and the
Clerk in exercising
their obligations hereunder,
and the fees
and expenses of
outside professionals that
the County reasonably
determines are necessary
for the County
and/or the Clerk
to exercise their
obligations hereunder shall
be withdrawn by the County
from the withheld
funds.
(C) PSTA
shall be solely
responsible for all
costs, expenses and/or
obligations relating to
or arising from
transit or transportation service
and systems provided
by PSTA, including
PSTA's Greenlight Plan,
including but not
limited to: (i)
acquisition, development, construction,
improvement, operation, maintenance,
repair or replacement
of Transportation Infrastructure, as
well as the
acquisition of any
necessary real property;
(ii) PSTA's operating,
personnel, and supportive
services, costs and
expenditures; and (iii)
payment of principal
and interest on
bonds or other
debt obligations issued
or incurred for
PSTA's Greenlight Plan
as provided in
Section 7.
(D) The
Parties recognize that
certain County Infrastructure may
be accessed or
utilized by PSTA
for PSTA's Greenlight
Plan. When necessary
to implement PSTA's
Greenlight Plan, PSTA
agrees to obtain
County approval and
coordinate any and
all activities that
will impact County
Infrastructure in advance
of any such
activity. Should it
be necessary to
alter, construct, improve,
develop, or replace
County Infrastructure in
order to implement
PSTA's Greenlight Plan,
PSTA shall pay
all costs related
to such alteration,
construction, improvement, development,
or replacement of
County Infrastructure. PSTA
shall require any
such alteration, construction,
improvement, development, or
replacement of County
Infrastructure be consistent
with any and all
then current design
standards of the
County. Project exceptions
or variances from
the design standards
may be submitted
to the County
for its prior
review and approval.
The Parties agree
to establish the
method and manner
of coordinating all
such activities impacting
County Infrastructure in
a separate agreement
for each project
undertaken in the
implementation of PSTA's
Greenlight Plan that
will, at a
minimum, address the
following issues:
(1) PSTA's notification to the County of
any preliminary plans
that require the
use of County
Infrastructure.
(2) The County's right to approve plans and
specifications and the
timing of such
review and approval.
(3) The
County's right to review all bids received
and approve the
award of the
construction project.
(4) The County's right to participate in project
meetings
and receive periodic
updates/status reports as
requested.
(5) The
County's right to inspect the portions of any
project
impacting County Infrastructure at any phase
of construction.
In undertaking
the activities set
forth in this
Section 11.D, the
Parties agree to
be responsible for
their own acts
of negligence. However,
PSTA shall require
any contractor, subcontractor, consultant
or subconsultant who
performs work on any such
project to indemnify
the County where
permitted by and
in accordance with
law, and name
the County as
an additional insured
on any insurance
that PSTA is
also named as
an additional insured,
using language approved
in advance by
the County. PSTA
shall pay the
County for all
costs and fees
incurred in the
review and approval
process set forth
herein, including without
limitation reimbursement for
staff time (which
shall consist solely
of the direct
cost to the
County of the
employee's wages and
benefits, prorated to an hourly
basis, and not
including any administrative or
other costs that
do not represent
direct compensation to
the employee), actual
fees and expenses
of outside consultants
or other experts
hired by and
paid by the County to
perform the review
described above, and
all similar fees,
costs and expenses,
as specifically provided
for in each
separate agreement contemplated
herein. The County
shall not attempt
to charge PSTA
any permit fees.
(E) PSTA
shall be solely
responsible for any
additional costs incurred
by the County
necessary to maintain
and operate existing
County Infrastructure directly
resulting from conflicting
or adjacent PSTA
facilities and shall
reimburse the County
for such costs
from Surtax Net
Proceeds.
(F) Notwithstanding any
other provision of
this Agreement, nothing
herein is intended
to transfer any
jurisdiction, exclusive use,
responsibility, control or
access to the PSTA for
County Infrastructure. However,
this is not
intended to prevent
PSTA from obtaining
rights or permission
from the County
for the exclusive
use of a
portion of County
right-of-way. Nothing contained
in this Section
11 shall be
construed as requiring
PSTA to pay
the County for
its present or
future use of
County rights-of-way or
other County Infrastructure unless
such rights-of-way or
County Infrastructure shall
be for the
sole and dedicated
use of PSTA.
Furthermore, nothing contained
in this Section
11 shall require
PSTA to pay
for any costs
incurred by a
private utility which
incurs costs as
a result of
any improvements or
changes made by PSTA to
any County right-of-way
or other County
Infrastructure and the
County agrees to
require public utilities
to relocate their
utilities at their
expense if necessitated
by work by PSTA in
accordance with any
policies, rules, regulations
or practices of
the County when
the County performs
work in County
rights-of-way.
(G) If
and only if
the Surtax Referendum
passes, PSTA shall
validate its authority
to issue bonds
or notes, enter
into lines of
credit, incur loans
or other indebtedness
and the pledge of the
Surtax Net Proceeds
as security therefore,
including this Agreement,
pursuant to Chapter
75, Florida Statutes,
at its sole
cost and expense.
The County shall
fully cooperate with
and provide its
best efforts to
assist PSTA in
obtaining a judgment
validating such rights,
including on any
appeals, and PSTA
shall pay for
the County's costs
and expenses related
thereto.
SECTION
12.
BUDGET, AUDIT AND REPORTS.
PSTA shall
annually provide the
County a copy
of its adopted
budget within fifteen
(15) days after
its adoption. PSTA
shall also cause
to be prepared
each year audited
financial statements and
shall provide a
copy of such
statements to the
County by April
15th following the
end of each
Fiscal Year. PSTA
shall provide a
progress report on PSTA's Greenlight
Pinellas Plan each
year within 60
days of the
end of PSTA's
fiscal year, including
but not limited
to an updated
pro forma. PSTA
shall also provide
the County with
any information required
to be provided
to bondholders, lenders,
and credit and
liquidity providers under
the provisions of the Trust
Agreement or with
respect to any
governmental grant or
loan and such
other information as
the County may
reasonably request from
time to time,
and the County
shall also provide
to PSTA with
such information as PSTA may
reasonably request from
time to time.
SECTION
13. MAINTENANCE AND PRESERVATION
OF FACILITIES AND ASSETS.
PSTA covenants
and agrees that
it will maintain,
preserve, keep and
operate, or cause
to be maintained,
preserved, kept and
operated, all of PSTA's facilities,
assets and properties,
including those that
are acquired and/or
constructed in connection
with PSTA's Greenlight
Plan, in good
and efficient repair,
working order and
operating condition in
conformity with standards
customarily followed in the transit
industry. PSTA will
make all necessary
and proper repairs,
renewals and replacements
which are economically
sound, so that
at all times PSTA's operations
and business can be properly
and advantageously conducted
in an efficient
manner.
SECTION
14. INSURANCE.
PSTA shall
procure and maintain,
or cause to
be procured and
maintained, so long
as it is
receiving Surtax Net
Proceeds hereunder, subject
to the requirements
of State law,
insurance against such
risks and at
such coverage levels
and with such
deductibles as shall
be determined by PSTA to
be adequate to
protect PSTA and
its assets and
which insurance shall
be consistent with
the types and
levels of insurance
maintained by public
transit authorities similar
to PSTA. Such
insurance shall include,
but not be
limited to, liability
and property, which
property insurance shall
cover loss or
damage by fire,
lightning, explosion, windstorm,
flood (where required),
riot, aircraft, vehicle
damage, smoke and
such other hazards
as are normally
covered by such
insurance. In procuring
such insurance, and
each year when
renewing such insurance,
PSTA shall employ
an insurance consultant
or actuary acceptable
to the County
to advise and
recommend the types
and levels of
insurance to be
maintained by PSTA.
SECTION 15. COMPLIANCE
WITH LAWS.
The Parties
shall comply with
all applicable federal,
state, and local
laws, ordinances, rules
and regulations, the
federal and state
constitutions, and the
orders and decrees
of lawful authorities
having jurisdiction over
the matter at
issue (collectively, "Laws"), including
but not limited
to public records
laws, and the
County's Comprehensive Plan.
The County's execution
of this Agreement
shall not be
construed as an
approval of any
necessary rezoning applications
nor for any
other regulatory permits
relating to PSTA's
Greenlight Plan.
SECTION 16.
INDEMNIFICATION.
Except for
the activities described
in Section 11
(D) above which
will be the
subject of a
separate agreement, to
the extent permitted
by law, PSTA
shall defend, indemnify
and pay the
cost of defense,
and hold harmless
the County from
all damages, suits,
actions, or claims
of any character
brought on account
of any injuries
or damages received
or sustained by
any person, persons,
or property, on
account of any
negligent or willful
act or omission,
or neglect or
misconduct of PSTA;
This paragraph shall
not be interpreted
to waive any
immunity from or
limitation of liability
that PSTA may
be entitled to
under the doctrine
of sovereign immunity
or Section 768.28,
Florida Statutes.
SECTION 17. FORCE
MAJEURE.
Neither County
nor PSTA shall
be deemed to
be in breach
of this Agreement
by reason of
a Force Majeure.
SECTION 18.
DUE AUTHORITY.
Each
Party to this
Agreement represents and
warrants to the
other Party that:
(i) it has
the full right
and authority and
has obtained all
necessary approvals to
enter into this
Agreement; (ii) each
person executing this
Agreement on behalf
of the Party
is authorized to
do so; and
(iii) this Agreement
constitutes a legal
and binding obligation
of the Party,
enforceable according to
its terms.
SECTION 19.
ASSIGNMENT.
No Party
to this Agreement
may assign any
rights or delegate
any duties under
this Agreement without
the prior written
consent of the
other Party, which
consent shall not
be unreasonably withheld.
SECTION 20.
NOTICES.
(A) Unless
and to the
extent otherwise provided
in this Agreement,
all notices, demands,
requests for approvals
and other communications which
are required to
be given by either Party
shall be in
writing and shall
be deemed given
and delivered on
the date delivered
in person to
the authorized representative of
the recipient below,
upon expiration of
five (5) business
days following the
date mailed by
registered or certified
mail, postage prepaid,
return receipt requested,
to the authorized
representative of the
recipient provided below,
or upon the
date delivered by
overnight courier (signature
required) to the
authorized representative of
the recipient provided
below: TO THE
COUNTY: County Administrator
Pinellas County 315
Court Street Clearwater,
Florida 33756 TOPSTA:
Chief Executive Officer
Pinellas Suncoast Transit
Authority 3201 Scherer
Drive St. Petersburg, Florida 33716
(B)
Either Party may
change its authorized
representative or address
for receipt of
notices by providing
the other Party
with written notice
of such change.
The change shall become
effective ten (10)
days after receipt
of the non-changing
Party.
SECTION 21.
WAIVER.
No act
of omission or
commission of either
Party, including without
limitation, any failure
to exercise any
right, remedy or recourse, shall
be deemed to be a
waiver, release, or
modification of the
same. Such a
waiver, release, or modification is to
be effected only
through a written
modification to this
Agreement, duly authorized
and executed by
both Parties.
SECTION 22. GOVERNING
LAW.
This Agreement
shall be construed
m accordance with
the Laws of
the State of
Florida.
SECTION 23. BINDING
EFFECT.
This Agreement
shall inure to the benefit
of and be binding upon
the Parties' respective
successors and assigns.
SECTION 24.
THIRD-PARTY BENEFICIARY.
Except for
lenders, creditors, credit
enhancers, concessionaires, lessors,
bond trustees or
other parties that
are secured by Surtax Net
Proceeds, persons not a party
to this Agreement
may not claim
any benefit hereunder
or as third-party
beneficiaries. Notwithstanding the
foregoing, to the
extent that the
County is required
to defend any
action brought by
any such lender,
creditor, credit enhancer,
concessionaires, lessor, bond
trustee or other
party, all of
the County's costs
related to such
defense shall be
paid from legally
available moneys of
PSTA, which may include Surtax
Net Proceeds, as an unsecured
obligation of PSTA.
SECTION 25.
HEADINGS.
The paragraph
headings are inserted
herein for convenience
and reference only
and in no
way define, limit,
or otherwise describe
the scope or
intent of any
provisions hereof.
SECTION
26. NO CONSTRUCTION
AGAINST PREPARER
OF AGREEMENT. This
Agreement has been
prepared by the
County and reviewed
by PSTA and
its professional advisors.
PSTA, the County
and the County's
professional advisors believe
that this Agreement
expresses their understanding
and that it
should not be
interpreted in favor
of either PSTA
or the County
or against PSTA
or the County
merely because of their efforts
in preparing it.
SECTION
27. ENTIRE AGREEMENT.
This Agreement
constitutes the entire
Agreement between the
Parties and no
change will be
valid unless made
by supplemental written
agreement duly authorized
and executed by
the Parties.
SECTION 28.
SEVERABILITY.
Should any
paragraph or portion
of any paragraph
of this Agreement
be rendered void,
invalid or unenforceable
by any court
of law for
any reason, such
determination shall not
render void, invalid
or unenforceable any
other paragraph or
portion of this
Agreement, unless it
is determined that
the County may
not impose the
Surtax or that
the Surtax Net
Proceeds may not
be legally distributed
to PSTA, in
which case this
Agreement shall terminate.
SECTION 29. NO
IMPAIRMENT; LIMITATION ON DISTRIBUTION REDUCTIONS.
(A)
Except and to
the extent expressly
permitted herein, as
long as bonds,
notes, loans, lines of credit,
other evidences of
indebtedness, lease agreements,
concession agreements or
other similar agreements
are secured by
Surtax Net Proceeds,
the pledging of
the Surtax Net
Proceeds in the
manner contemplated hereunder shall
not be subject
to repeal, modification
or impairment by any subsequent
ordinance, resolution or
other proceedings of
the Board of
12 Commissioners of
the County, and
the County shall
not take any
action which will adversely
impact its obligation
and ability to
levy the Surtax
and to pay
Net Surtax Proceeds
to the PSTA
to be used
as contemplated in
this Agreement and
in the Ordinance.
(B) Except
as otherwise provided
below, notwithstanding anything
herein to the
contrary, the County
shall not under
any circumstances reduce
or cause the
reduction of Surtax
Net Proceeds to
be distributed to
PSTA (i) unless
written confirmation is
received from each
rating agency then
maintaining a rating
on PSTA debt
obligations to the
effect that such
reduction will not
in and of
itself cause such
rating agency to
reduce or withdraw
the then current
rating, and (ii)
below a level
which, in the
reasonable opinion of
a qualified independent
consultant(s) selected by
PSTA and approved
by the County
(a) jeopardize, at
such time or
in the future,
PSTA's ability to
cost-effectively incur debt
as contemplated in PSTA's Greenlight
Plan, (b) jeopardize,
at such time
or in the
future, PSTA's ability
to obtain federal
and state funding
at the times
and in the
amounts contemplated in PSTA's Greenlight
Plan, (c) jeopardize,
at such time
or in the
future, PSTA's ability
to execute public-private partnerships
(if deemed by
PSTA and its
financial advisor to
be the most
appropriate way to
deliver all or
a portion of PSTA's Greenlight
Plan), (d) cause PSTA to
be in breach
of this Agreement
or any then-existing
funding, grant or
loan agreement or
the Trust Agreement,
(e) jeopardize, at
such time or
in the future,
PSTA's ability to
renew, replace, and
properly maintain PSTA's
physical assets at
the times and
in the amounts
contemplated in PSTA's
Greenlight Plan, or
(f) otherwise frustrate,
at such time
or in the
future, PSTA's ability
to plan, develop,
acquire, improve, construct,
equip, operate, maintain,
or finance PSTA's
Greenlight Plan. This
Section 29(B) shall
not apply in
any manner with
respect to the
County's ability to
reduce Surtax Net
Proceeds distributions to PSTA pursuant
to Section 6
hereof.
SECTION 30. DEFAULT
AND REMEDIES FOR DEFAULT.
(A) Each
Party hereto shall
be considered in
default if it
is in default
in the due
and punctual performance
of any covenant,
condition, agreement and
provision contained herein,
to be performed,
and such default
shall continue for
sixty (60) days
after written notice
specifying such default
and requiring same
to be remedied
shall have been
given to such
Party by the
other Party.
(B) Upon
the happening and
continuance of a
default by a Party hereto,
then and in
every such case
the other Party
may proceed to
protect and enforce
their rights hereunder
by such suits,
actions or special
proceedings in equity
or at law,
or by proceedings
in the office
of any board
or officer having
jurisdiction, either for
mandamus or the
specific performance of any covenant
or agreement contained
herein or in
aid or execution
of any power
herein granted or
for the enforcement
of any proper
legal or equitable
remedy, as such
Party shall deem
most effectual to
protect and enforce
such rights.
(C) The
provisions of this Section
30 shall not
apply with respect
to any of
the matters set
forth in Section
6 and Section
9 hereof. Any
event that occurs
under Section 6
or Section 9
hereof that could
result in a
reduction of the
distribution of Surtax
Net Proceeds shall
not be considered
a default under
this Section 30.
This Agreement may be executed in counterparts
by the Parties.
SECTION 32.
TERMINATION.
The Parties'
obligations under this
Agreement shall terminate
immediately without any
further action and
be of no
further force and
effect if the
Surtax Referendum does
not pass or
if the Surtax
is repealed in
its entirety.
SECTION 33. FILING
OF AGREEMENT.
This Agreement
and any amendments
thereto, shall be
filed with the
Clerk as provided
in Section 163.01(11),
Florida Statutes.
SIGNATURES
IN WITNESS
WHEREOF, the parties
have caused this
Agreement to be
executed by their
duly authorized representatives on
the date first
above written.
APPROVED AS TO FORM SUNCOAST TRANSIT AUTHORITY
By:
______________________ By: _________________________
General Counsel Chairperson
ATTEST
_____________________________
Secretary/Treasurer
ATTEST: PINELLAS
COUNTY, FLORIDA, by and
KEN BURKE,
CLERK OF COURT through
its Board of County Commissioners
By:
______________________ By:____________________________
APPROVED AS TO FORM
OFFICE OF COUNTY
ATTORNEY
EXHIBIT A MILESTONE SCHEDULE
Expand night/weekend
bus service spans
across system and
increase service without
immediate need for
fleet expansion -- end
of calendar year
2016
Submit to
the Federal Transit
Administration (the "FTA") environmental
and engineering for
BRT/Rapid Bus Service
Phase I -- end
of calendar year
2016
Purchase standard
and coach buses
for increased frequencies-- end of
calendar year 2017
Complete capital
procurement and installation
for BRT/Rapid Bus
Service Phase 1
--end of calendar
year 2017
Begin increases
in midday bus
service frequencies for
frequent local routes
and all trolleys
and begin new
regional express service-- end
of calendar year
2018
Service opens
for BRT/Rapid Bus
Service Phase I-- end
of calendar year
2018
Increase local
midday bus service
frequencies for supporting
local routes and
North County Connector;
begin circulator service
and seasonal trolley
service -- end of
calendar year 2019
Submit to
the FTA environmental
and engineering for
BRT/Rapid Bus Service
Phase II-- end of
calendar year 2019
Complete capital
procurement and installation
for BRT /Rapid
Bus Service Phase
I -- end of
calendar year 2020
• Submit to
the FT A
environmental and engineering
for light rail
transit -- end of
calendar year 2020
Service opens
for BRT /Rapid
Bus Service Phase
I -- end of
calendar year 2021
Complete acquisition
of vehicles and
construction for light
rail transit -- end
of calendar year
2023
Service opens
for light rail
transit -- end of
calendar year 2024
No comments:
Post a Comment