Item F4
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: 6-20-0 I
Division: Public Works
Bulk Item: Yes
No X
Department: Engineering
AGENDA ITEM \VORDING: Approval of an agreement with K W Resort Utilities, Corp. to accept
sewage directly from the Monroe County Detention Facility on Stock Island.
ITEM BACKGROUND: In early 1994, the County completed construction of the federal court
ordered detention facility on Stock Island. Part of that facility contains an operating sewage treatment
plant large enough to handle the wastewater treatment necessary for that facility. Monroe County is
responsible for all operating costs for the wastewater treatment operation at the detention facility. K W
Utilities is the operator ofthe sewage treatment facility on Stock Island and has proposed to takj:: over
the responsibility for accepting detention facility's sewage at its plant as part of its expansion program.
After months of negotiation, it appears as though implementing this arrangement with K W Utilities
and decommissioning the plant at the detention facility is in the County's financial and long-range
interest.
PREVIOUS REVELANT BOCC ACTION: At the March 21,222001 meeting the Board granted
conceptual approval of the agreement and requested staff to investigate FKAA comments as expressed
by Roger Braun in his March 19, 2001 letter to the County Administrator.
CONTRACT/AGREEMENT CHANGES: New Contract
STAFF RECOMMENDATIONS: Approval as stated above.
TOTAL COST: There will be anticipated savings
as oer the attached document.
BUDGETED: Yes
No
COST TO COUNTY:
REVENUE PRODUCING: Yes _No
AMOUNT PER MONTH
Year
APPROVED BY:
Item Prepared By:
OMBlPurchasing _ Risk Management_
David S. Koppel, County Engineer
-...
DIVISION DIRECTOR APPROVAL:
DOCUMENTATION:
Included L To Follow.--
Not Required
AGENDA ITEM # / - ~ 1./
DISPOSITION:
Revised 2/27/01
UTILITY AGREEMElfi
TInS mlLITY AGREEMENT ("Agreement"), dated as of the _ day of .2001,
by and between KW Resort Utilities Corp., a Florida corporation. having its officc(s) at 6450 Junior College
Road, Key West, Florida, 33040 ("Service Company"), and The County of MollfO(\ Florida, a Florida County
having its office(s) at 5100 College Road, Key West, FL 33040, ("County").
RECITALS
A. County is the owner of certain real property more particularly described on ~ibit ... A".
attached hereto and made a part bereof (the "Property").
B. County currently operates a jail and detention center on the Property ("Detention Facility"1
which requires sanitary sewer service.
C. County currently operateS public facilities at the Public Service Building, Bayshore Manor, and
the Animal Shelter, all along College Road ("Public Buildings"), which requires sanitary sewer
service.
D. County requests that Service Company provide central sewage collection services in and upon
the Property.
E. Service Company owns, operates, manages and controls a central sewage system and is willing
to provide sanitary sewer services pursuant to this Agreement.
NOW. TIiEREFORE, in consideration of Ten Dollars ($10.00), and the mutual covenants and
agreements hereinafter set forth, and intending to be legally bound thereby, it is agreed as follows:
1. o.-Site Faeili_
The County owns and operates the following facilities. which it agrees to
convey at no charge to the Service Company:
A. Lift station serving the Detention Facility Treatment Plant.
B. Lift station serving the Public Buildings and sewer main from the
lift station to the Detention Facility Trea1ment Plant.
The County shall construct the following facilities, which it agrees to convey at
no charge to the service compmj: ' ,
A. A second lift station serving the Public Buildings located at.
B. A sewer main from the second lift station to the existing sewer main
serving the Detention Facility.
The three County lift stations and appurtenant facility to be conveyed to Service
Company are hereinafter referred to as "On-Site Facilities". All On~Site Facilities,
laterals and Property Installations shall be in good working order upon connection to
Service Company's system. Prior to commencing construction on the second lift station
serving the Public Buildings, County shall provide Service Company with construction
plans for approval by Service Company, which approval shall not be unreasonably
withheld.
(Util.KeyWest. Monroe Col.Inty)
(4- t -2001)
1
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8tSE~6~S0E'aI ::i~IddO ^~~'d ^~Nno~ ::iO~NOW'WO~d 8~'e0 to-st-Nnr
Service Company shall construct a reuse ("graywater") line to Detention
Facility, and agrees to make available a minimum of 32,000 ganons per day ("gpdj of
graywatet to County, but no more then 60,000 gallons per day. Graywater shall meet
all reuse water quality standards required by law.
2. Definitions
"Business Day" - shalt mean any day of the year in which commercial banks are not
required or authorized to close in New Y or~ New York. "Central Sewa2C Svstem" -
shall mean the central sewage system owned and operated by the Service Company.
,
"Customer" - shall mean any residential or commercial customer of Service Company:
"Equivalent Residential Connections" - (ERe), shall be defined as one individual
residential connection or, for commercial and other uses, the estimated flow based on
the use and Chapter 64E-6 F.A.C., divided by the most recently approved "Capacity
Analysis" rate per residential connection (currently 205 gallons per day per residential
connection).
"Point of ~1iverY' - shall mean the point at which the county lines enter the three-lift
station conveyed to 'the Service Company.
.~ tpstallatioos" - shall mean any service lines located on individual lots or
parcels of the Property, on the County side of the Point of Delivery.
"Service Comoany's Affiliates" - shall mean any disclosed or undisclosed officer.
director. employee, trustee shareholder, partner, principal, parent. subsidiary or other
affiliate of Service Company.
"Single Family installations" - shall mean any service lines, which connect single
family residences or lots to the Central Connection Lines.
"System" - shall mean all pipes, lines, manholes, lift or pump stations. reservoirs or
impoundments constructed or installed on the Property in public rights-of.way or
easements dedicated to Service Company, or on lands conveyed. to Service Company by
deed in fee simple, including, without limitation, Central Connection Lines.
"Tariff' - shall mean Service Company's existing and future schedules of rates and
charges for sewer service.
3. ~ COIlstn..
Service Company shall design and construct at its sole expense otfsite facilities to
connect the county lift station at the Detention Facility to the Central Sewage System
(the "Project"). Said Project shall commence 30 days after execution hereof and be
completed 180 days after commencement. County upon completion shall immediately
provide all of its domestic wastewater to Service Company for treatment at Service
Companyts applicable tariff. The Service Company's current tariff is $605.52 for a 4"
meter base facility charge per month and $2.92 per 1000 gallons measured off of water
consumption. Additional wastewater services at the Public Service Building, ~ Shore
Manor, the An~Shelter and other shan pay the applicable tariffs. For instance if the
Detention Center uses a 4" meter and the Public Service Building has a 2" meter then
thc County's rate shall be $605.62 + $196JSplus $2.92 per ffiousand gallons per
month.
(UtiI.KeyWest- Monroe County)
(4-1-2001)
0t/~
3~'o'd
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St58~6~508'aI 3~IddO ALL'o' ALNno~ 30~NOW'WO~d ~~'80 to-5t-Nnc
... Svstem DeeommisslolUU'Y
County currently operates a .105 MGD wastewater treatment plant on the property.
After commencement of service by Service Company, County at its sole expense may
at its option decommission and remove said plant. Notwithstanding the foregoing.
Service Company agrees to assist County in said decommissionary by contributing up
to $10,000 to the cost of the engineerin~ pennitting, and removing the existing plant.
S. ProoertY_Ripts
Prior to Service Company's construction of the Project, County shall convey
a) A non-exclusive easement in the form attached hereto as Exhibit "B" in and to
any and all portions of the On.Site Facilities not located in public rights-of-
way, of sufficient size to enable Service Company ingress and egress and to
operate, maintain and replace such portions of the On-Site Facilities not located
within public rights-of-way for Service Company, other uses of Service
Company's system and it's successor and assigns. ,
b) Service Company at its sole discretion shall be permitted to pump other
customer's wastewater through said lift station and force main and County
shall provide easements for said connections at request of Service Company
without any additional charge.
c) A bill of sale conveying title to On-Site Facilities free and clear of all liens and
encumbrances.
6. ~tes. F,.. Chal"l!:cs
a) All Customers will pay the applicable fees, rates and charges as set forth in the
Tariff. Nothing con1ained in this Agreement shall serve to prohibit Service
Company's right to bill or collect its rates and charges from Customers, nor to
require compliance with any provision of its Tariff.
b) County shall pay to Service Company a reservation fee
("Capacity Reservation Fee"), in the amount of Two
Thousand Seven Hundred ($2.700.00) dotlat$ per E.R.C.
connections to be reserved by County to serve the Property (individually, a
"Connection't, collectively, the "CODnections").
The initial reservation shall be for 454 ERe's based upon an average flow of
83,000 gallons per day from the county jail and an estimated flow from the
addition to the juvenile detention center of 10,045 gallons per day. Cost for
said hook-ups is $1,225,800. Any additional flows of wastewater from the
Detention Facility, Public Buildings, or expansions thereof, animal shelter or in
excess of the estimated flow shall require additional capacity fee, which shall
be based upon Florida Code Statute 64E-6.
c} The Capacity Reservation Fee for each coonection shall be payable by County
to Service Company as follows:
(i)
(ii)
1/3, upon completion of the connection (estimated at this time to
be $408,600).
1/3, one year after connection completion.
(Ub1-KeyWest- Monroe County)
(4-1.2001)
01/E
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819E~S~g0E'aI 33IddO ^~~\:i ^~Nn03 30~NOW:WO~d 8~'80 10-S1-Nnr
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d) Service Company hercby agrees to reserve such capacity for the benefit for
County subject to the provisions uf this Section 5, provided, however. that
such reservations shall not be etlective until Service Company has received
the initial installment of the Capacity Reservation Fee in accordance with
Section 6 @ (I) hereof, and provided, further, that Service Company shall
have the right to cancel such reservations in the event of County's failure to
comply with the terms of this Agreement
c) In addition to the above charges, upon delivery hereof, County shall also pay
Service Company $.40 per thousand gallons for "graywater" provided to
County pursuant to Paragraph 1 herein.
f) In the event of default by County in the payment of fees hereunder, Service
Company may cancel this agreement by giving thirty (30) days written notice
of default and retain all payments hereunder as liquidated damages.
7.
Thc capacity rcscrvation fce described in paragraph 6(c)(i), hereafter 6(e)(i) funds
(minus the cost incurred by Service Company to complete the Project including the
graywater line), when due, must be deposited in an interest bearing escrow account
with a federally insured financial institution that has an oflice in Key West, Florida.
The mention of 6(c)(i) funds includes all accumulated interest. The terms of the
cscrow arc as.,.follows:
o
G
c)
(Ulil-KeyWeSI- Monroe County)
(4-1-2001)
When the Selvice Company begins substantial physical construction to
expand the capacity of its wastewater treatment plant or the extension of its
wastewater collection infrastructure (e.g. engineering, legal, pipes and lift
stations), then the escrow agent will release the 6(c)(i) funds 10 the Service
Company in the following manner: the payments will be made monthly in an
amount equal to the percentage of the work completed that month out of the
total plant expansion project. Release of said funds shall be made by escrow
agent upon presentation of construction invoices to be paid by Service
Company along with a statcmcnt from Service Company dcseribing the
expansion construction for which the invoices seck payment. County hereby
agrees to require all property owners located within Service Company's
service area to connect to Service Company's System and pay the applicable
tariff. In the event of breach hereof all escrowed funds shall be released to
Service Company.
However, if the Service Company agrees to sell its wastewatcr trealment
plant and collection infrastructure to the FKAA before the Service company
completes the construction just described, then the 6(c)(i) funds (or the
balance then remaining undisbursed) must be transferred to the FKAA upon
the completion of the actions needed to consummate the sale of the
wastewater treatment plant and collection infrastru'cturc to the FKAA. For
the purposes of this paragraph 7, sale means tbe sale of phYSIcal assets, an
equity purchase (and/or debt assumption or purchase) resulting in the FKAA
acquiring a controlling interest in the Service Company, a long-term Icasc of
the physical assets, or any other transaction that rcsults in the FKAA
assuming the obligation to operate the Service Company's wastewater
treatment plant and current collection infrastructure.
If the Service company has not commenced expansion of the wastewater
treatment plant or collection infrastructure by the year 2006 or, if the FKAA
has not purchased the Service Company's assets as described above by the
year 2006, then the escrow agent must release the 6(c)(i) funds to the Service
Company.
4
(iii) 1/3, two years after connection completion.
d) Service Company hereby agrees to reserve such capacity for the benefit for
County subject to the provisions of this Section 5, provided, however, that
such reservations shall not be effective until Service Company has received
the initial installment of the Capacity Reservation Fee in accordance with
Section 6 4} (1) hereof, and provided, further, that Service Company shall
have the right to cancel such reservations in the event of County's failure to
comply with the tenns of this Agreement '
e) In addition to the above charges, upon delivery hereof, County shall also pay
Service Company $.40 per thousand gallons fur "graywater" provided to
COUDty pursuant to Paragraph I herein.
f) In the event of default by County in the payment of fees hereunder, Service
Company may cancel this agreement by giving thirty (30) days written notice
of default and retain all payments hereunder as liquidated damages.
7. The capacity reservation fee described in paragraph 6(cXi), hereafter 6(cXi) funds
(minus the cost incUITed by Service Company to complete the Project including the
graywater line), when due, must be deposited in an interest bearing escrow account
with a federally insured financial institution that has an office in Key West, Florida
The mention of 6( c Xi) funds includes all accumulated interest. The terms of the
escrow ue as follows:
a) When the Service Company begins construction to expand the capacity of its
wastewater treatment plant or the extension of its wastewater coUection
infrastructure (e.g. engineering, legal, pipes and lift stations), then the e~.
agent will release the 6( c Xi) funds to the Service Company to be used for the
expansion of the plant or the infrastructure. Release of said funds shall be
made by escrow agent upon presentation of bills to be paid by Service
Com.pany along with a statement from Service Company that such bills are
for expansion purposes of the system. County hereby agrees to require all
property owners located within Service Company's service area to connect to
Service Company's System and pay the applicable tariff. In the event of
breach hereof all escrowed funds shall be released to Service Company.
b) However, if the Service Company agrees to sell its wastewater treatment
plant and collection infrastructure to the FKAA before the Service company
begins the construction just described, then the 6(c)(i) funds must be
transferred to the FKAA upon the completion of the actions needed to
consummate the sale of the wastewater treatment plant and collection
infrastructure to the FKAA. For the purposes of this paragraph 7, sale means
the sale of physical assets, an equity purchase (and/or debt assumption or
purcha.'re) resulting in the FKAA acquiring a controlling interest in the
Service Company, a long-term lease of the physical assets, or any other
tnmsaQtion that results in the FKAA assuming the obligation to ~Ate the
Service Company's wastewater treatment plant and current collection
infrastructure.
c) If the Service company has not commenced expansion of the wastewater
treatment plant or collection infrastructure by the year 2006 or, if the FKAA
has not purchased the Service Company's assets as described above by the
year 2006, then the escrow agent must release the 6(cXi) funds to the Service
Company.
8. Absolute Conveyance
(UtiJ-KeyWest- Monroe County) 4
(4-1-2001 )
01/17
3:J\:id
8158~S~508'aI 3~IddO ^~~\:i ^~Nno~ 30~NOW'WO~d 817'80 10-51-Nnc
t,
County understands, agrees and acknowledges that County's conveyance oftbe OnM
Site Facilities and any and all easements., real property or personal property, or
payment of any funds hereunder (including, without limitation, the Capacity
Reservation Fee), shall, upon acceptance by Service Company, be absolute. complete
and unqualified, and that neither County nor any party claiming by or through County
shall have any right to such easements, real or personal property, or funds, or any
benefit which Service Company may derive from such conveyance or payments in any
fonn or manner.
9. Delivery of Semft: Maintenance
a) Upon County's fun perfonnancc of its obligations under this Agreement,
Service Company shall provide service to the Point of Delivery in accordance
with the terms of this Agreement and all applicable laws and regulations and
shall ope.* and maintain the System in accordance with the tenns an~
provisions of this Agreement. Service Company shall use its best efforts to.
provide service prior to October 31, 2001. In the event that Service Company'
is unable to provide senrice on October 31, 2001 thru no fault of Service
Company, then all cost of alternative sewage disposal shall be County's until
service is provided.
b) County shalJ, at its sole cost and expense, own, operate and maintain all
Property Installations, which have not been conveyed to Service Company
pursuant to the tenns and conditions of this Agreement.
c) In the event County desires additional services over and above that reserved
herein and provided Service Company has additional uncommitted capacity,
Service Company shalJ provide said additional capacity provided County pays
the additional connection fees required under Chapter 64E-6 F A.C.
d) County shall pay for the extra expense of opel'8tiq the Detention Center lift
station as a result of prisoner or staff disposal of debris into the system or
failure to maintain its .grease trap. Service Company shall have the right to
inspect the grease traps in order to insure their continued maintenam:e by.
County. :
e) County shall only provide domestic waste water for treatment by Service
Company. No water from air conditioning systems or swimming pools sball
flow into the wa.stewatef disposal systmn.
10. ReDairorS....
In the event of any damage to or destruction of any portion of the System owned,
operated or maintained by Service Company due to any acts or omissions by County, or
their respective agents, representatives, employees, invitee$, licensees, detainees or
inmates, Service Company shall repair or replace such damaged or destroyed portion of
the System at the sole cost and expense of C01DIty. County shall pay all costs and
expenses associated with such repair or replacement within thirty (30) days after receipt
of an.y invoice from Service Company setting forth any such costs and expenses.
County shall operate., maintain and repair all other portions of the System on its side of
the Point of Delivery at its sole cost and expense. : .
11. Im!
(util-KcyWcst- ~ Coumy) 5
(4-1-2001)
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3:J'a'd
St98~S~908'aI 3~IddO A~~'a' A~Nno~ 30~NOW'WO~d S~'80 to-9t-Nnc
This Agreement shall become effective as of the ~lst day of June .
2001, and shan continue for 99 years so long as Service Company, its successor or
assignees, provides sewer service to the public.
12. Default
In the event of a default by either party of its duties and obligations hereunder, the nom.:
defaulting party shall provide written notice to the defaulting party specifying the nature
of the default and the defaulting party shall bave five (5) days to cure any default of ~
monetary nature and thirty (30) days for any other default. If the default has not been
cured within the applicable period (timo being of the essence), the non-defaulting party
shall be entitled to exercise all remedies available at law or in equity, including but not
limited to, the right to dama~ injunctive relief and specific perfonnance. Service
Company may, at its sole option, discontinue and suspend the delivery of service to the
System in accordance with all n:quirements of applicable law and the Tariff, if County
fails to timely pay all fees, rates and charges pursuant to the tenDs of this Agreement.
13. ExeQlIe from PerformRDce
a) Fon:e Maieuft
[f Service Company is prevented from or delayed in performing any act required to
be perfonned by Service Company hereunder, and such prevention or delay is cased
by strikes, labor disputes, inability to obtain labor, materials or equipment, stonDS:>
earthquakes, electric power failures, land subsidence, acts of God, acts of puhlit
enemy, wars, blockades, riots, acts of armed forces, delays by earners, inability to
obtain rights--of.way, acts of public authority, regulatoty agencies, or co~ or any
other cause, whether the same kind is enumerated herein, not within the control of
Service Company ("Force Majeure~). the perl"onnance of such act shall be excused
for a period equal to the period of prevention or delay.
b) Governmental Acts
If for any rCason during the term of this Agreement, other than the fault of County.
any federal~ state or local authorities or agencies fail to issue necessary permits,
grant necessary approvals or requite any change in the operation of the Central
Sewage System or the System (~l Acts"), then, to the extent tbat sucb
Governmental Acts shall affect the abilb)' of any party to perfonn any of the tenDs
of this Agreement in whole or in part, the affected party shall be excused from the
perfonnance thereof and a new agreement shall be negotiated, if possible, by the
parties hereto in confonnity which such pennits~ approvals or requirements.
Notwithstanding the foregoing. neither County nor Service Company shall ~
obligated to accept any new agreement if it substantially adds to its burdens and.
obligations hereunder. :.
c) Emel'l!eDltV SituatioDS
Service Company shall not be held liable for damages to County and County hereby
agrees not to hold Smrice Company Hable for dama.ges for failure to deliver service
to the Property upon the OCCUITCIlce of any of the following events provided that
service is restored within 24 hours:
1. A lack of service due to loss of flow or process or distribution failure;
(Util-KeyWClSt. Monroe County)
(4-1-2001)
0t/8
3~~d
6
8t5~~6~50~:aI 3~IddO A~~~ A~Nno~ 30~NOW'WO~d 05'80 to-5t-NnC
JUN-15-01 08.54 FROM.MONROE COUNTY ATTY OFFICE 10.3052923516
. ,
PAGE
1/2
2. Equipment or material failure in the CenuaI Sew. System or the
System, including storage, pumping and piping provided the Service
Company has utilized its best efforts to maintain the Central Sewage
System in good operating condition; and
3. Force ~eure, unforeseeable f,1ilure or breakdown of pumping.
transmission or other facilities, any and all governmental requirements,
acts or action of any government, public or govemm~t authority,
commission or board, agency. agent, official or officer, the enactment of
any statute, ordinance, resolution, regulation, role or ruling, order, decree
or judgment, restraining order or uyunction of any court, including,
without limitation, Governmental Acts.
d) Notwithstanding any excuse of performance due to the occurrence of any of
the foregoing ev~ County sbaU not be, excused from payment of any fees,
charges and lUes due to Service Company under the terms of this Agreement
(including without limitation, the Capaciity Reservation Fee and COllDeCtion
Charges).
14. SueeessonaDd Assit!D1
This Ag=mcnt and the e8!teI'{JeoI$ granted hereby, sball be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns.
15 IndemnifteatioD
To the Extent authorized by Section 768.28. FS. the County agrees to indemnify and
hold barmless the Service Company for claims, demands, causes of action, losses,
cJ.m~ and liabilities that arise out of the act(s) or omission(s) of any County officer,
employee, contractors (including subcontractors employed by a County contractor) and
agents, in connection with the use of the system, the operation of the system, or the
occupancy of the Property.
16 Notices
All notices, d~smd~ requests or other communications by either party under this
Agreement shall be in writing and sent by (a) first olass U.S. certified or registered mail,
return receipt requ~ with postage prepaid, or (b) overnight delivery service or
courier, or (0) telefacsimile or similar facsimile transmission with receipt confirmed as
follows:
If to Service Company:
With a copy to:
KW Resort Utilities Corp.
6450 Junior College Road
Key West, Florida 33040
Fax (305)294-1212
W. Smith
II E. Adams, Suite 1400
Chicago, illinois 60603
Fax (312)939-7765
If to County:
County Administrator
Public Service Building
5100 College Road
Key West, FL 33040
(Util.K.eyWest. Moaroe Coady)
(4-1.2001)
7
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JUN-15-01 08,54 FROM,MONROE COUNTY ATTY OFFICE 10.3052823518
18.
PAGE
2/2
With a copy to;
CountyAttomey
PO Box 1026
Key West, FL 33041
Tarift'
-
This Agreement is subject to all of the tenns and pl'ovision of the Tariff. In the event of
any conflict between the Tariff and the tenDs of this Agreement, the Tariff shall govern
and control.
19. Miscellaneous ProvilioDl
a) This Agreement shall not be altered, amended, changed, waived,
terminated or otherwise modified in any respect or particular, and no
consent or approval required pursuant to this Agreement shall be
effective, unless the same shall be in writing and sigoed by or on behalf
of the party to be charged.
b) All prior statements, understandin~ representations and agreements
between the partie$.. oral or written., arc superseded by and merged in
this Agreement, which alone fully and completely expcsses the
agreement between them in counection with this transaction and which
is entered into after fun investigation, neither party relying upon any
statement, understanding, representation or agreement made by the
other not embodied in this Agreement. This Agreement shall be aiven
a fair and reasonable construction in accordance with the intentions of
the parties hereto, and without regard to or aid of 1".MI01)5 requiring
construction against Service Company or the party drafting this
Agreement.
c) No failure or delay of either party in the exercise of any right or remedy
given to such party hereWKler or the waiver by any party of any
condition hereunder for its benefit (unless the time specified herein for
exercise of such right or remedy bas expired) sba1l constitute a waiver
of any other or further right or remedy nor shall any single or partial
exercise of any right or remedy preclude other or further exercise
thereof or any other right or remedy. No waiver by either party of any
breach hereunder or failure 01' refusal by the other party to comply with
its obligations shall be deemed a waiver of any other or subsequent
breach, failure or refusal to so comply.
d) This Agreement may be executed in one or more counterparts, each
of which so executed and delivered shall be deemed an original, but all
of which taken together shall constitute but one and the same
instrument. It shall not be necessary for the same counterpart of this
Agreement to be: executed by all of the parties hereto.
e) Each of the exhibits and schedules referred to herein
and attached hereto is incorporated herein by this
reference.
(UtiI-KeyWest. Monroe County)
(4-1-2001)
t) The caption headings in this Agreement are for convenience
only and are not intended to be a part of this Agreement and shall not be
8
(VtiI-KcyWcst- Monroe COlIIIIy)
(4-.1-2001)
construed to modifY, explain or alter any of the terms. covenants or
conditions herein COJrtajned.
g)
This Agreement shall be interpreted and enforced in accordance with the
laws of the state in which the property is located without reference to
principles of conflicts of taws. In the event that the Florida Public
Service commission loses or relinquishes its authority to ~gulate
Service Company, then all references to such regulatory authority will
relate to the agency of government or political subdivision imposing
said regulations. If no such regulation exists, then this Agreement shalt
be govemed by applicable principles of law.
h)
..
Each of the parties to this Agreement agrees that at any time after the'
execution hereof, it will, on request of the other party, execute and
deliver such other documents and further assurances as may reasonably
be required by such other party in order to carry out the intent of this
Agreement.
i)
Ifany provision of this Agreement shall be unenforeeable Of invalid, the
same shall not affect the remaining provisions of this Agreement and to
this end the provisions of this Agreement are intended to be and shall be
severed. Notwithstand.ing the foregoing sentence, if (i) any provision of
this Agreement is fmally determined by a court of competent
jurisdiction to be unenforceable or invalid in whole or in part. (ii) the
opportunity for all appeals of such determination have expired, and (iii)
such unenforceability or invalidity alters the substance of this
Agreement (taken as a whole) so as to deny either party, in a material
way, the realization of the intended benefit of its bargain, such party
may terminate this Agreement within thirty (30) days after the finaJ.
detcnnination by notice to the other. If such party so elects to terminate.
this Agreement, then this Agreement sball be terminated and neither
party shalt have any further rights, obligations or liabilities hereunder,
except for any ri~ obligations or liabilities which by this specific
tenns of this Agreement survive the termination of this Agreement.
The parties hereto do hereby knowingly, voluntarily, intentionally,
unconditionally and in'evocably waive any right any party may have to a
jury trial in every jurisdiction in any action, proceeding or counterclaim
brought by either of the parties herdo against the other or their
respective successors or assigns in respec;t of any matter arising out of or
in connection with this agreement or any other document executed and
delivered by either party in connection therewith (including, without
limitation, any action to rescind or cancel this agreement. and any claim
or defense asserting that this agreement was hudulent1y induood or is
otherwise void or voidable). This waiver is a material inducement for
the parties hereto to enter into this agreement.
j)
k)
0'
In the event of any litigation arising out of or connected in any manner'
with this Agreement, the non-prevailing party shall pay the costs of the
prevailing party, including its reasonable counsel and pamlepl fees
incurred in connection therewith through and including all other legal
expenses and the costs of any appeals and appellate costs relating
thereto. Wherever in this Agreement it is stated that one party shall be
responsible for the attorneys' fees and expenses of another party, the
same shall automatically be deemed to include the fees and expenses in
9
01/8
3~'dd
SIS~~8~S0~'aI 3~IddO A~~'d A~Nno~ 30~NOW'WO~d IS'80 10-S1-Nnr
connection with all appeals and appellate proceedings relating ~
incidental thereto. This subsection (k) shall survive the tmminaboo Of
this Agreement.
1) This Agreement shall not be deemed to confer in favor of any third
parties any rights whatsoever as third party beneficiaries, the parties
hereto intending by the provisions hereof to confer no such benefits or
status.
IN WITNESS WllEREOI~, Service Company and Developer have executed this Agreement as of the
day and year first above written.
KW RESORT UTILITIES CORP.
Print Name
By:
Title
Address
(SEAL)
Attest: DANNY L. KOLHAGE. Clerk
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA:
By
Deputy Clerk
By
Mayor/Chairman
STATE OF
COUNTY OF
)
) ss:
)
The foregoing iustrument was acknowledged before me this
, 2oo_J by
, a Florida corporation, on behalf of said corporation.
is personally known to me or who has produa=d
as identification_
day of
, as
Hefshe
, .
My Commission Ex.pires:
STATE OF
COUNlY OF
)
)ss:
)
day of
, as
He/she
My Commission ExJrires:
(UtiJ-KeyWest- M~ County)
(4-1-2001 )
10
01/01 a:O'dd
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