Common use of COOPERATIVE POWERS, FUNCTIONS AND DUTIES; LIMITATIONS Clause in Contracts

COOPERATIVE POWERS, FUNCTIONS AND DUTIES; LIMITATIONS. (A) The Cooperative shall have all powers to carry out the purposes of this Interlocal Agreement and the functions and duties provided for herein, including the following powers, which shall be in addition to and supplementing any other privileges, benefits and powers granted by this Interlocal Agreement or by law: (1) to acquire water and water rights, and to develop, store, and transport water, and sell water in the manner provided herein; (2) to acquire, construct, own, lease, operate, manage, maintain, dispose of, improve and expand the Cooperative Facilities, and to have the exclusive control and jurisdiction thereof; (3) to acquire, by purchase, gift, devise or otherwise, real property, or any estate, rights and interests therein, including lands under water, littoral rights, and riparian rights; and to acquire, by purchase, gift, devise or otherwise, such personal property as the Cooperative may deem necessary and appropriate in connection with the acquisition, construction, ownership, expansion, improvement, operation and maintenance of the Cooperative Facilities; and to hold and dispose of all real and personal property under its control; the power of eminent domain, to the maximum extent available (except that the power of eminent domain shall not be available to acquire any real property, facility or water or water rights owned or controlled by such Member Government without the consent of a Member Government, which consent may be withheld for any reason or, with the exception of transmission lines and appurtenant facilities, any real property, facility, water or water rights within the water service territory of a Member Government without the consent of such Member Government, which consent shall not be unreasonably withheld), may be exercised by the Cooperative for the purpose of carrying out this Interlocal Agreement; (4) to lease, as lessor or lessee, to or from any person, firm, corporation, association, or body, public or private, facilities or properties of any nature for the use of the Cooperative to carry out any of the purposes authorized by this Interlocal Agreement; (5) to make and execute contracts or other instruments necessary or convenient to the exercise of the powers of the Cooperative, including, but not limited to Implementation Agreements; (6) to contract with one or more public corporations for the purpose of carrying out any of the powers of the Cooperative and for that purpose to contract with one or more public or private corporations for the purpose of financing acquisitions, construction, and operations; (7) to contract for the service of engineers, accountants, attorneys and other experts or consultants, and such other agents and employees as the Board of Directors may require or deem appropriate from time to time; (8) to contract with a Member Government or any private or public entity for the operation and management of any Cooperative Facility; (9) to establish Member Government annual contributions to fund the Cooperative’s Administrative Expenses, provided that each Member Government’s annual contribution shall be in proportion to its annual average potable water use in comparison to the total annual average potable water use by all of the Cooperative’s Member Governments for the prior year, but not less than $500 per Member Government; (10) to collect rates, fees and charges from public or private corporations, the state or its agencies, the federal government or any other entities for the use or provision of Cooperative Facilities or services; (11) to create a rate stabilization fund(s), as appropriate; (12) to re-bundle and consolidate Costs for different Approved Water Projects, when appropriate; (13) to use any lawful means of enforcement available to the Cooperative to require and enforce the performance of any entity or person as required by or in conjunction with any Implementation Agreement or other agreement related to a Water Project; (14) to adopt by resolution all necessary standards, rules and regulations that provide design and construction specifications and procedures associated with the Cooperative Facilities; the Cooperative may require as condition precedent to the approval of any connection to Cooperative Facilities (a) any infrastructure necessary to serve a particular user, and necessary easements, be approved by and dedicated to the Cooperative, and (b) surety bonds or other guarantees from any user to assure completion of construction in compliance with any standards, rules and regulations adopted by the Cooperative; (15) to provide water and develop, receive, recover, treat, store, and supply potable and non-potable water on a wholesale or bulk-service basis; (16) to accomplish construction directly, through contracts, or by letting construction contracts to other entities, whether public or private, for all or any part of the acquisition, installation or construction of improvements that may comprise Cooperative Facilities in accordance with applicable law and as determined by the Board of Directors or Project Board(s), as applicable; (17) subject to such provisions and restrictions as may be set forth in Financing Documents, to enter into contracts with the government of the United States or any agency or instrumentality thereof, the State, or with any municipality, county, district, authority, political subdivision, private corporation, partnership, association or individual necessary to effect the purposes of this Interlocal Agreement; (18) to apply for, receive and accept from any governmental agency, grants, subsidies, or loans or enter any Funding Agreement for or in aid of the planning, acquisition, construction, reconstruction, operation and maintenance, or financing of Cooperative Facilities and improvements, additions or extensions thereto; and to receive and accept aid or contributions or loans from any other source of either money, labor or other things of value, to be held, used and applied only for the purpose for which such grants, contributions or loans may be made; (19) to work with future development interests and the communities in which such interests may be located to establish future funding mechanisms that employ a partnership approach; (20) to promote future land use and water management practices and Water Projects to help restore water supply systems, including, but not limited to aquifers, lakes, rivers and springs; (21) to purchase, assume the ownership, lease, operation, management and or control of any publicly or privately owned water, transmission/distribution, conservation, treatment, or similar facilities of every kind or nature, including the assumption, defeasance or payment of the financial liabilities associated with such water related facilities, provided, however, that ownership, lease, operation, management and/or control of any Member Government owned water transmission/distribution, conservation, treatment or similar facility of every kind may only occur with the consent of the Member Government; (22) appoint advisory boards and committees to assist the Board of Directors in the exercise and performance of the powers and duties provided in this Interlocal Agreement; (23) to adopt and use a seal and authorize use of a facsimile thereof; (24) to sue and be sued in its own name; (25) subject to such provisions and restrictions in Financing Documents, to sell or otherwise dispose of the Cooperative Facilities, or any portion thereof, upon such terms as the Board of Directors deems appropriate; (26) to engage and or employ persons or legal entities and provide such deferred compensation, retirement benefits or other benefits or programs, as the Board of Directors deems appropriate; (27) to maintain an office or offices at such place or places as the Board of Directors may designate; (28) to incur debts, liabilities and Obligations, which do not constitute debts, liabilities and Obligations of the Member Governments, unless specifically agreed to by such Member Governments in an Implementation Agreement; (29) to enter into interest rate swaps, caps, collars, and any other financial instruments for the purpose of hedging or managing interest rates; (30) exercise all powers in connection with the authorization, issuance and sale of Obligations, as are conferred by Section 163.01(7)(d) and 163.01(7)(g), Florida Statutes, as amended, and any other applicable provisions of law and any other statute hereafter adopted; (31) to the extent allowed by law and to the extent required to effectuate the purposes of this Interlocal Agreement, to exercise all privileges, immunities and exemptions accorded municipalities and counties of the State under the provisions of the constitution and laws of the State; (32) to invest its moneys in such investments as directed by the Board of Directors in accordance with State law and that shall be consistent in all instances with the applicable provisions of the Financing Documents; (33) to purchase such insurance as it deems appropriate; (34) to periodically develop and update a water supply plan for Polk County, Florida, endeavoring to involve the applicable Water Management District(s) in such planning and to include consolidated water demands, water supply resources and facilities, individual and cooperative water supply projects, regional ground water and distribution system modeling and other information to facilitate cooperative regional planning for water supply and to jointly develop and update the water supply development component of the Water Management District approved regional water supply plan(s), which affects public utilities and public water supply for those areas served by the Cooperative and its Member Governments, as specified in Section 373.709(3), Florida Statutes, as may be amended from time to time; (35) to advocate on behalf of the Member Governments with federal, state, regional or local authorities, including, but not limited to legislative bodies and executive agencies regarding matters within the scope of the responsibilities assigned to the Cooperative under this Interlocal Agreement, including, but not limited to supporting the right of the Member Governments to keep their existing permitted allocations; (36) to help encourage the establishment of appropriate water conservation policies throughout the boundaries of the various Member Governments comprising the Cooperative to ensure the effective use of the water supply; (37) to help encourage the establishment of land use policies that promote the conservation of water for residential, commercial and industrial uses and landscape in Polk County; and (38) to do all acts and to exercise all of the powers necessary, convenient, incidental, implied or proper, in connection with any of the powers, duties, obligations or purposes authorized by this Interlocal Agreement or by law. (B) In exercising the powers conferred by this Interlocal Agreement the Board of Directors and/or Project Board(s) shall act by resolution or motion made and adopted at duly noticed and publicly held meetings in conformance with applicable law. (C) Unless otherwise expressly required by law, the provisions of Chapter 120, Florida Statutes, shall not apply to the Cooperative. (D) Nothing herein shall be construed to grant the Cooperative any jurisdiction to set or regulate the services or rates of any governmental utility, except as may be required pursuant to an Implementation Agreement for an Approved Water Project, develop or implement a retail Water Project, acquire or operate Member Government water, wastewater or Reclaimed Water facilities, except with the consent of the Member Government, interfere with existing consumptive use permits or water, wastewater or Reclaimed Water Facilities owned or operated by a Member Government, except with the consent of the Member Government or otherwise interfere with the autonomy of water, wastewater or Reclaimed Water utilities operated by a Member Government, except with the consent of the Member Government. (E) In addition to the powers granted the Cooperative hereunder, the Cooperative may issue bonds or other debt instruments for the principal purpose of lending the proceeds thereof to a public or private entity which shall finance or refinance the acquisition and/or construction of water treatment, transmission and/or production facilities, water which may be purchased in whole or in part by the Cooperative or Member Governments. Any bonds or other debt instruments shall be payable in whole or in part by the Cooperative or Member Governments. Any bonds or other debt instrument shall be payable from such sources as determined by the Board of Directors, including, without limitation, payments received by the Cooperative from the private or public entity under a loan or lease agreement.

COOPERATIVE POWERS, FUNCTIONS AND DUTIES; LIMITATIONS. (A) The Cooperative shall have all powers to carry out the purposes of this Interlocal Agreement and the functions and duties provided for herein, including the following powers, which shall be in addition to and supplementing any other privileges, benefits and powers granted by this Interlocal Agreement or by law: (1) to acquire water and water rights, and to develop, store, and transport water, and sell water in the manner provided herein; (2) to acquire, construct, own, lease, operate, manage, maintain, dispose of, improve and expand the Cooperative Facilities, and to have the exclusive control and jurisdiction thereof; (3) to acquire, by purchase, gift, devise or otherwise, real property, or any estate, rights and interests therein, including lands under water, littoral rights, and riparian rights; and to acquire, by purchase, gift, devise or otherwise, such personal property as the Cooperative may deem necessary and appropriate in connection with the acquisition, construction, ownership, expansion, improvement, operation and maintenance of the Cooperative Facilities; and to hold and dispose of all real and personal property under its control; the power of eminent domain, to the maximum extent available (except that the power of eminent domain shall not be available to acquire any real property, facility or water or water rights owned or controlled by such Member Government without the consent of a Member Government, which consent may be withheld for any reason or, with the exception of transmission lines and appurtenant facilities, any real property, facility, water or water rights within the water service territory of a Member Government without the consent of such Member Government, which consent shall not be unreasonably withheld), may be exercised by the Cooperative for the purpose of carrying out this Interlocal Agreement; (4) to lease, as lessor or lessee, to or from any person, firm, corporation, association, or body, public or private, facilities or properties of any nature for the use of the Cooperative to carry out any of the purposes authorized by this Interlocal Agreement; (5) to make and execute contracts or other instruments necessary or convenient to the exercise of the powers of the Cooperative, including, but not limited to Implementation Agreements; (6) to contract with one or more public corporations for the purpose of carrying out any of the powers of the Cooperative and for that purpose to contract with one or more public or private corporations for the purpose of financing acquisitions, construction, and operations; (7) to contract for the service of engineers, accountants, attorneys and other experts or consultants, and such other agents and employees as the Board of Directors may require or deem appropriate from time to time; (8) to contract with a Member Government or any private or public entity for the operation and management of any Cooperative Facility; (9) to establish Member Government annual contributions to fund the Cooperative’s Administrative Expenses, provided that each Member Government’s annual contribution shall be in proportion to its annual average potable water use in comparison to the total annual average potable water use by all of the Cooperative’s Member Governments for the prior year, but not less than $500 per Member Government; (10) to collect rates, fees and charges from public or private corporations, the state or its agencies, the federal government or any other entities for the use or provision of Cooperative Facilities or services; (11) to create a rate stabilization fund(s), as appropriate; (12) to re-bundle and consolidate Costs for different Approved Water Projects, when appropriate; (13) to use any lawful means of enforcement available to the Cooperative to require and enforce the performance of any entity or person as required by or in conjunction with any Implementation Agreement or other agreement related to a Water Project; (14) to adopt by resolution all necessary standards, rules and regulations that provide design and construction specifications and procedures associated with the Cooperative Facilities; the Cooperative may require as condition precedent to the approval of any connection to Cooperative Facilities (a) any infrastructure necessary to serve a particular user, and necessary easements, be approved by and dedicated to the Cooperative, and (b) surety bonds or other guarantees from any user to assure completion of construction in compliance with any standards, rules and regulations adopted by the Cooperative; (15) to provide water and develop, receive, recover, treat, store, and supply potable and non-potable water on a wholesale or bulk-service basis; (16) to accomplish construction directly, through contracts, or by letting construction contracts to other entities, whether public or private, for all or any part of the acquisition, installation or construction of improvements that may comprise Cooperative Facilities in accordance with applicable law and as determined by the Board of Directors or Project Board(s), as applicable; (17) subject to such provisions and restrictions as may be set forth in Financing Documents, to enter into contracts with the government of the United States or any agency or instrumentality thereof, the State, or with any municipality, county, district, authority, political subdivision, private corporation, partnership, association or individual necessary to effect the purposes of this Interlocal Agreement; (18) to apply for, receive and accept from any governmental agency, grants, subsidies, or loans or enter any Funding Agreement for or in aid of the planning, acquisition, construction, reconstruction, operation and maintenance, or financing of Cooperative Facilities and improvements, additions or extensions thereto; and to receive and accept aid or contributions or loans from any other source of either money, labor or other things of value, to be held, used and applied only for the purpose for which such grants, contributions or loans may be made; (19) to work with future development interests and the communities in which such interests may be located to establish future funding mechanisms that employ a partnership approach; (20) to promote future land use and water management practices and Water Projects to help restore water supply systems, including, but not limited to aquifers, lakes, rivers and springs; (21) to purchase, assume the ownership, lease, operation, management and or control of any publicly or privately owned water, transmission/distribution, conservation, treatment, or similar facilities of every kind or nature, including the assumption, defeasance or payment of the financial liabilities associated with such water related facilities, provided, however, that ownership, lease, operation, management and/or control of any Member Government owned water transmission/distribution, conservation, treatment or similar facility of every kind may only occur with the consent of the Member Government; (22) appoint advisory boards and committees to assist the Board of Directors in the exercise and performance of the powers and duties provided in this Interlocal Agreement; (23) to adopt and use a seal and authorize use of a facsimile thereof; (24) to sue ▇▇▇ and be sued in its own name; (25) subject to such provisions and restrictions in Financing Documents, to sell or otherwise dispose of the Cooperative Facilities, or any portion thereof, upon such terms as the Board of Directors deems appropriate; (26) to engage and or employ persons or legal entities and provide such deferred compensation, retirement benefits or other benefits or programs, as the Board of Directors deems appropriate; (27) to maintain an office or offices at such place or places as the Board of Directors may designate; (28) to incur debts, liabilities and Obligations, which do not constitute debts, liabilities and Obligations of the Member Governments, unless specifically agreed to by such Member Governments in an Implementation Agreement; (29) to enter into interest rate swaps, caps, collars, and any other financial instruments for the purpose of hedging or managing interest rates; (30) exercise all powers in connection with the authorization, issuance and sale of Obligations, as are conferred by Section 163.01(7)(d) and 163.01(7)(g), Florida Statutes, as amended, and any other applicable provisions of law and any other statute hereafter adopted; (31) to the extent allowed by law and to the extent required to effectuate the purposes of this Interlocal Agreement, to exercise all privileges, immunities and exemptions accorded municipalities and counties of the State under the provisions of the constitution and laws of the State; (32) to invest its moneys in such investments as directed by the Board of Directors in accordance with State law and that shall be consistent in all instances with the applicable provisions of the Financing Documents; (33) to purchase such insurance as it deems appropriate; (34) to periodically develop and update a water supply plan for Polk County, Florida, endeavoring to involve the applicable Water Management District(s) in such planning and to include consolidated water demands, water supply resources and facilities, individual and cooperative water supply projects, regional ground water and distribution system modeling and other information to facilitate cooperative regional planning for water supply and to jointly develop and update the water supply development component of the Water Management District approved regional water supply plan(s), which affects public utilities and public water supply for those areas served by the Cooperative and its Member Governments, as specified in Section 373.709(3), Florida Statutes, as may be amended from time to time; (35) to advocate on behalf of the Member Governments with federal, state, regional or local authorities, including, but not limited to legislative bodies and executive agencies regarding matters within the scope of the responsibilities assigned to the Cooperative under this Interlocal Agreement, including, but not limited to supporting the right of the Member Governments to keep their existing permitted allocations; (36) to help encourage the establishment of appropriate water conservation policies throughout the boundaries of the various Member Governments comprising the Cooperative to ensure the effective use of the water supply; (37) to help encourage the establishment of land use policies that promote the conservation of water for residential, commercial and industrial uses and landscape in Polk County; and (38) to do all acts and to exercise all of the powers necessary, convenient, incidental, implied or proper, in connection with any of the powers, duties, obligations or purposes authorized by this Interlocal Agreement or by law. (B) In exercising the powers conferred by this Interlocal Agreement the Board of Directors and/or Project Board(s) shall act by resolution or motion made and adopted at duly noticed and publicly held meetings in conformance with applicable law. (C) Unless otherwise expressly required by law, the provisions of Chapter 120, Florida Statutes, shall not apply to the Cooperative. (D) Nothing herein shall be construed to grant the Cooperative any jurisdiction to set or regulate the services or rates of any governmental utility, except as may be required pursuant to an Implementation Agreement for an Approved Water Project, develop or implement a retail Water Project, acquire or operate Member Government water, wastewater or Reclaimed Water facilities, except with the consent of the Member Government, interfere with existing consumptive use permits or water, wastewater or Reclaimed Water Facilities owned or operated by a Member Government, except with the consent of the Member Government or otherwise interfere with the autonomy of water, wastewater or Reclaimed Water utilities operated by a Member Government, except with the consent of the Member Government. (E) In addition to the powers granted the Cooperative hereunder, the Cooperative may issue bonds or other debt instruments for the principal purpose of lending the proceeds thereof to a public or private entity which shall finance or refinance the acquisition and/or construction of water treatment, transmission and/or production facilities, water which may be purchased in whole or in part by the Cooperative or Member Governments. Any bonds or other debt instruments shall be payable in whole or in part by the Cooperative or Member Governments. Any bonds or other debt instrument shall be payable from such sources as determined by the Board of Directors, including, without limitation, payments received by the Cooperative from the private or public entity under a loan or lease agreement.