Item F4
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: 7 -18-0 I
Division: Public Works
Bulk Item: Yes No K
Department: EOlzineering
AGENDA ITEM WORDING: 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
of the sewage treatment facility on Stock Island and has proposed to take 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 fmancial and long-range interest. On June 20,2001 the
Board of County Commissioners instructed the County Attorney to obtain a legal opinion from an expert in
the area of utilities law. The County Attorney indicated that could be done in very short order.
PREVIOUS RELEVANT BOCC ACTION: At the March 21, 22 2001 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 RECOMMENDATION: Approval as stated above.
Cost to County:
TOTAL COST: There will be anticioated savings BUDGETED: Yes
As per the attached document.
NO
REVENUE PRODUCIl'IG: YES _ NO
AMOUNT PER MONTH
YEAR
Item Prepared by:
APPROVED BY: County A~.
C
Risk Management
DMSION DIRECTOR APPROVAL:
7 )r/17
Dent Pierce, Division Director
DOCUMENTATION: Included K.... To Follow
Not Required
AGENDAITEM# /...,~
DISPOSITION:
JUL-17-01 15,28 FROM,MONROE COUNTY ATTY OFFICE 10,3052923516
PACiJ:;;
2/13
UTIUTY AGREEMENT
THIS UTILITY AGREEMENT ("Agreement"), dated as of the _ day of , 2001,
by and between KW Resort Utilities Corp., a Florida corporation, having its office(s) at 6450 Junior
College Road, Key West, Florida, 33040 ("Service Company"), and The County of Monroe, Florida,
a Florida County having its office(s) at 5100 College Road, Key West, Fl33040, ("County").
RECITALS
A. County is the owner of certain real property more particularly described on Exhibit
"An, attached hereto and made a part hereof (the "Property").
B. County currently operates a jail and detention center on the Property ("Detention
Facility"), which requires sanitary sewer service.
C. County currently operates public fadlities 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, THEREFORE, 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. On-Site Facilities
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 Treatment
Plant.
The County shall construct the fOllowing facilities, which it agrees to
convey at no charge to the service company at the time of connection to the
Service ComDany's system:
A. A second lift station serving the Public Buildings located at the
Animal Shelter.
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 11ft station serving the Public Buildings, County
(UIlI.J(~) We,.. MOllloe COUlll))
(4.1.2001)
/-F4
JUL-17-01 15,28 FROM,HONROE COUNTY ATTV OFFICE 10,3052923518
PAGE
3/13
shall provide Service Company with construction plans for approval by
Service Company, which approval shall not be unreasonably withheld. If the
Service Comoanv discontinues service to the County orooertv for whatever
reason. then the on-site facilities will be reconveved bv the Service
Comoanv to the Countv at no charge.
Service Company shall construct a reuse rgraywater"') line to
Detention Facility, and agrees to make available a minimum of 32,000
gallons per day C-gpd") of graywater to County, but no more then 60,000
gallons per day. Graywater shall meet all reuse water quality standards
required by law.
2. Definitions
"Busin~ss D~y" - shall mean any day of the year in which commercial banks
are not required or authorized to close In New York, New York.
"Central Sewaqe System" - shall mean the central sewage system owned
and operated by the Service Company.
"CustQmer" - shall mean the County. aAy resifleRtial 8r eefflfflereial
Cl:IstafRer af Sen iee Ca"'fMu,y.
"Equivalent Residential ConnectioDs" - (ERC), 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 Delivery" - shall mean the point at which the county lines enter the
three-lift station conveyed to the Service Company.
"PrODertv Installations" - shall mean any service lines located on individual
lots or parcels of the Property, on the County side of the Point of Delivery.
"Service Comoanv's Affiliates" - shall mean any disclosed or undisclosed
officer, director, employee, trustee shareholder, partner, prinCipal, parent,
subsidiary or other affiliate of Service Company.
"SiAsle femU... IAstalleti8As" shall "'earl arl, 3~pyi<< 1Ir1~3, ..Rich ~8""Cet
sift!ille fafftil.T- PE:steeAees er lets te the Central CORRettioA LiRes.
"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 ruture schedules or
rates and charges for sewer service.
3. System Construction
Service Company shall design and construct at its sole expense offsite
facilities to connect the county lift station at the Detention Fadlity to the
(Uul-KayWest. Monroe County)
(4-1-2001)
2
JUL-17-01 15,28 FROH,HONROE COUNTY ATTY OFFICE 10,3052823516
....""\.01:.
"/I;J
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
Company's 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, Bay Shore Manor, the Animal Shelter and other shall
pay the applicable tariffs. For instance if the Detention Center uses a 4"
meter and the Public Service Building has a 2" meter then the County's rate
shall be $605.62 + $196.35 plus $2.92 per thousand gallons per month.
4. SYstem Decommlsslonarv
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
engineering, permitting, and removing the existing plant.
5. PropertY Riahts
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. If the Service Company discontinues
service to the County Droperty for whatevc:,r reason. then the
easements aranted to this section will laDse and eXDire and the
County property so encumbered will be free and clear of such
easements. Languaae similar to the foregoing must appear in the
easements filed for record. The Service Companv aarees to Drovide
and execute the documents necessarY to extin9uish such easements.
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 Fadlities free and clear of all
liens and encumbrances.
6. Rates. Fees. Charaes
a)
All Customers wlll pay the applicable fees, rates and charges as set
forth in the Tariff. Nothing contained 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.
(Util.K.eyWoesl- MOIlrOI: County)
(4-1-2001)
3
~UL-I~-~l 1~.2S F~UM.MUN~U~ ~UUN~Y ~~~Y UrFI~~ ID.a052S2a51B
P~I:OE
5/1a
b) County shall pay to Service Company a reservation fee
("Capacity Reservation Fee"), in the amount of Two
Thousand Seven Hundred ($2,700.00) dollars per E.R.C.
connections to be reserved by County to serve the Property
(individually, a "Connection", collectively, the "Connections").
The initial reservation shall be for 454 ERC'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 connection shall be payable by
County to Service Company as follows:
(i) 1/3, upon completion of the connection (estimated at
this time to be $408,600),
(i1) 1/3, one year after connection completion.
(iii) 1/3, two years after connection completion.
d) Service Company hereby agrees to reserve such capacity for the
benefit tor 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 @ (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
e) In addition [0 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 al/ payments hereunder as
liquidated damages.
7. The capacity reservation fee described in paragraph 6(c)(i), hereafter
6(c)(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 office in Key West, Florida. The mention of 6(c)(i} funds
includes all accumulated interest. The terms of the escrow are as follows:
a)
When the Service Company begins substantial physical construction
to expand the capacity of its wastewater treatment plant:......ma!
estate acauisition. or the extension of its wastewater collection
infrastructure (e.g. engineering, real estate aCQuisition legal, pipes
and lift stations), then the escrow agent will release the 6(c)(i)
funds to the Service Company in the following manner: the
payments will be made monthly in aft a"'8tiftt e~tial f8 the
I'ereefttage af the llwe,k COMltletett that MeAth Bttt ef the; telal J'laftt
(Uul.KeyWeSl. Monroe COUllly)
(4-1-2001 )
4
JUL-17-01 15,28 FROM,MONROE ~OUNTY ATTY OFFICE 10,3052823516
PAGE
6/13
expaAsieA prejeet equal amounts based on the expected comDletion
date of the eXDansion as set forth in the Service Company's
construction documents. Release of said funds shall be made by
escrow agent upon presentation of construction invoices to be paid
by Service Company along with a statement from Service Company
describing the expansion construction for which the invoices seek
payment. County hereby agrees to require aU 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 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 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 purchase) resulting in the
FKAA acquiring a controlling interest in the Service Company, a
long-term lease of the physical assets, or any other transaction that
results in the FKAA assuming the obligation to operate the Service
Company's wastewater treatment plant and current collection
Infrastructu re.
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(c)(i) funds to the Service Company.
8. Absolute Convevanc::e
C;xcept as provided elsewhere in this contract regarding the re<:;onveance of
orooerty and the extinauishment of easements if service is discontinued.
County understands, agrees and acknowledges that County's conveyance
of the On-Site Facilities and any and all easements, real property or
personal property, or payment of any funds hereunder (including, without
Iimitation, the Capacity Reservation Fee), shall, upon acceptance by
Service Company, be absolute, complete and unqualified, and that neither
County nor any party daiming 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
form or manner.
9. Delivery of Service: Maintenance
a) Upon C8HAt)'S ftllI peffen"aftf:f) ef Its eeligarleRs tlAder this
~ree"'e"t, connection as provided in section 1, 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 operate and maintain the System in accordance with the terms
and provisions of this Agreement. Service Company shall use its
best efforts to provide service prior to October 31, 2001. In the
(UliJ.KcyWIlSI. Mooroc COllllly) 5
(4-\.2001)
JUL-17-01 15,30 FROH,HONROE COUNTY ATTY OFFICE 10,3052923516
PAGE
7/13
event that Service Company is unable to provide service 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. Service means that the Service ComDany will process.
treat and disDose of wastewater and will ooerate its svstem: in
comDliance with the Duality and orocess standards required by DEP
and the Service Comoanv: in accordance with industry standards as
they develop and anv FKAA. County f or City of Ke~ We~t
reQuirements: and. in a manner that does not DOse or cause health
Qr environmental risk or damage. Service also means the furnishing
of graywater described in section 1.
b) County shall, at its sole cost and expense, own, operate and maintain
all Property Installations, which have not been conveyed to Service
Company pursuant to the terms 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 shall 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 operating 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 maintenance by County.
e) County shall only provide domestic waste water for treatment by
Service Company. No water from air conditioning systems or
swimming pools shall flow into the wastewater disposal system.
f) The Service COmRtPv aQrees to keeo its sYStem in 900d repair. in full
operating condition in compliance with apolicable law and to
promotly remedy SIll breakdowns. sDills. contaminations and other
acts of environmental damage or pollution.
10. Repair of System
In the event of any material damage to or destruction of to any poftlOft ef
IRe SystefR 8'lC\/Red, of the 11ft stations located on County orooert:y operated
or maintained by Service Company due to any acts or omissions by County,
or thew resJ*:etivc ~ agents, representatives, employees, invitees,
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 County. County shall pay aU costs and expenses associated with
such repair or replacement within thirty (30) days after receipt of any
invoice from Service Company setting forth any such costs and expenses.
CatlAty shall aperate, fRalAtaiR aREI repair all ather peFtieAs et tRe S.(stefR
ef'l its side af the Paif'll af Deli'iE:f)' at its s81e eest 8f'ld e)(~e"se.
11. DmD
(Ulil-K.:yWc... Mllnroe County) 6
(4.1-2001)
JUL-17-01 15.30 FROM.MONROE COUNTY ATTY OFFICE ID.3052S23516
....At.OJ:;;
l:I/l;j
This Agreement shall become effective as of the _ day of ,
2001, and shall continue for 99 years so long as Service Company, its
successor or assignees, provides sewer service to the ~ County. and the
Countv's successors and assigns.
12. Default
~o~ "
.\(\
13.
lUlil.KcyWcSI- Monro.: COunl)')
(4.1-2001)
In the event of a default by either party of its duties and obligations
hereunder, the non-defaulting party shall provide written notice to the
defaulting party specifying the nature of the default and the defaulting party
shall have fin (S) fifteen IS days to cure any default of a monetary nature
and thirty (30) days for any other default. (If the default has not been cured
within the applicable period (time being of the essence), the non-defaulting
party shall be entitled to exercise all remedies available at law or in equity,
induding but not limited to, the right to damages, injunctive relief and
specific performance. Service Company may, at its sole option, discontinue
and suspend the delivery of service to the System in accordance with all
requirements of appHcable law and the Tariff, if County fails to timely pay all
fees, rates and charges pursuant to the terms of this Agreement. The
County. however. may withhold paYment. without default. if the Service
Com n: fails to rovide consistent mini m w
i n xcus ela s or
interruDtions in service or commencing service: cause or permits reoeated
or chronic failures to maintain Qualitv standards: causes or oermits damage
to County orooertv: causes or permits adverse health effects to the nubile or
system users: causes or permits environmental damaae: Of. eXDoses the
Coun~ or its officials and emoloyees to suits or risk or liability attributable
to the Service Company's conduct.
Excuse from Performance
a) Force Mateure
If Service Company is prevented from or delayed in performing any ad
required to be performed by Service Company hereunder, and such
prevention or delay is cased by strikes, labor disputes, inability to obtain
labor, materials or equipment, storms, earthquakes, electric power
failures, land subsidence, acts of God, acts of public enemy, wars,
blockades, riots, acts of armed forces, delays by carriers, inability to
obtain rights-at-way, acts of pUblic authority, regulatory agencies, or
courts, or any other cause, whether the same kind is enumerated herein,
not within the control of Service COmpany (-Force Majeure'), the
performance of such act shall be excused for a period equal to the period
of prevention or delay. If the Service Comoanv intends to claim force
majeure as an excuse for nonoerformance. then it must so notify the
County in writing within three days of the force maleure event. The
Service Comoany must also undertake all reasonable measures. at its
exoense, to restore full service at the earliest oractical date. The County
is not obliaated to Dav anv Service Comcany tariff. charge or fee until
service Is restored.
b) Governmental Acts
If for any reason during the term of this Agreement, ether than the fatllt
ef CetlR~j, oth~r than for due conduct of the Service Comoanv and its
7
JUL-l?-01 15,30 FROH,HONROE COUNTY ATTY OFFICE 10,3052923516
PAGE
9/13
agents and reDresentatives. and exc~Dt for the lawful actions and
decisions of the County in the exercise of its govern~~ntal D~wers. any
federal, state or local authorities or agencies fail to issue necessary
permits, grant necessary approvals or require any change in the
- operation of the Central Sewage System or the System ("Governmental
ActsN), then, to the extent that such Governmental Acts shall affect the
ability of any party to perform any of the terms of this Agreement in
whole Or In part, the affected party shall be excused from the
performance thereof and a new agreement shall be negotiated, if
possible, by the parties hereto in conformity which such permits,
approvals or requirements. Notwithstanding the foregoing, neither
County nor Service Company shall be obligated to accept any new
agreement if it substantially adds to its burdens and obligations
hereunder.
c) Emerqlencv Situations
Service Company shall not be held liable for damages to County and
County hereby agrees not to hold Service Company liable for damages
for failure to deliver service to the Property upon the occurrence 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;
2. Equipment or material failure in the Central Sewage System or
the System, induding 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 Majeure, unforeseeable failure or breakdown of pumping,
transmission or other fadlities, any and all governmental
requirements, acts or action of any government, public or
governmental authority, commission or board, agency, agent,
official or officer, the enactment of any statute, ordinance,
resolution, regulation, rule or ruling, order, decree or judgment,
restraining order or injunction of any court, induding, without
limitation, Governmental Acts.
EI) Netwit:I\st-aAEliAt aA)' excuse af pel'feffl'l'h1Aee dut te ll\e eeeUl'reRee sf
aR" af the feregaiRg eveRts, CatlRty shall Rat be excused 'rem
l!Ia"f""eAt sf aft., fees, elila~e5 aA~ rates ~l:Ie te Sef\'iee Campa,,',
uAder tl\e terms af this Atree"'eftt (iAeludift9 wit:I\eut Iimlt-atiaA, tl\e
eal'aeity ResenatieR Fee aRea C-eRfteetisft Qal'ge.!il).
14. Successors and Asslans
This Agreement and the easements granted hereby, shall be bindIng upon
and inure to the benefit of the parties hereto and their respective successors
and assigns.
15 Indemnification
~ To the Extent authorized by Section 768.28, FS, the County agrees to
indemnify and hold harmless the Service Company for claims, demands,
(Ulil-K;yWl:lt. MoIlIoc: COWII}')
(4-1-2/101)
8
~UL-17-~J 15,31 ~~UM'MUNKU~ ~UUN~Y ~~~Y U~~l~~ lU'~~~~~~~~lb
,...'"'~c j to" .. ~
causes of action, losses, damages, and liabilities that arise out of the
negliaent 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.
b) The Service Company agr~es to indemnifv and hold harmless the
Countv for claims. demands. causes of action. losses. dama(jJes and liabilities
that arise out of the neqligent act(s) Or omission(s) of any Service ComDanv
officer. emplovee. contractors (including subcontractors emploved by a
Service ComDanv contractor) and agents in connection with the
maintenance. expansion and ooeration of the system. includin9 those acts or
omissions that result in environmental damaae Or Dollution.
16 Notices
All notices, demands, requests or other communications by either party
under this Agreement shall be in writing and sent by (a) first class U.S.
certified or registered mail, return receipt requested, with postage prepaid,
or (b) overnight delivery service or courier, or (e) telefacsimile or similar
facsimile transmission with receipt confirmed as follows:
If to Service Company:
KW Resort Utilities Corp.
6450 Junior College Road
Key West, Florida 33040
Fax (305)294-1212
W. Smith
11 E. Adams, Suite 1400
Chicago, Illinois 60603
Fax (312)939-7765
With a copy to:
If to County:
County Administrator
Public Service Building
5100 College Road
Key West, FL 33040
With a copy to:
COunty Attorney
PO Box 1026
Key West, FL 33041
18. Ialift
This Agreement is subject to all of the terms and provision of the Tariff. In
the event of any conflict between the Tariff and the terms of this
Agreement, the Tariff shall govern and control.
19. Miscellaneous Provisions
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 signed by or on behalf of the party to be charged.
(Ulil-K.~)'W~l- Monroe Counl)')
(4-1-2001 )
9
JUL-17-01 15,31 FROM,MONROE COUNTY ATTY OFFICE 10,3052923516
PACE 11/13
b) All pr-ior statements, understandings, representations and
agreements between the parties, oral or written, are
superseded by and merged in this Agreement, which alone
fully and completely expresses the agreement between them
in connection with this transaction and which is entered into
after full investigation, neither party relying upon any
statement, understanding, representation or agreement made
by the other not embodied in this Agreement. This
Agreement shall be given a fair and reasonable construction in
accordance with the intentions of the parties hereto, and
without regard to or aid of canons 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 hereunder or the waiver- by any
party of any condition hereunder for its benefit (unless the
time specified herein for exerdse of such right or remedy has
expired) shall 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 or 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.
f) 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 construed to modify, explain or
alter any of the terms, covenants or conditions herein
contained.
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 laws. In
the event that the Aorida Public Service commission loses or
relinquishes its authority to regulate 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
shall be governed by applicable principles of law.
(Ulil-KcyWQI- Monroe County) 10
(4-1-2001)
JUL-17-01 15,31 FROH,HONROE COUNTY ATTY OFFICE 10,3052923516
PAGE 12/13
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) If any provision ot this Agreement shall be unenforceable or
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.
Notwithstanding the foregoing sentence, if (I) any provision of
this Agreement is finally 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 final determination
by notice to the other. If such party so elects to terminate this
Agreement, then this Agreement shall be terminated and
neither party shall have any further rights, obligations Or
liabilities hereunder, except for any rights, obligations or
liabilities which by this specific terms of this Agreement survive
the termination of this Agreement.
j) The parties hereto do hereby knOWingly, voluntarily,
intentionally, unconditionally and irrevocably waive any right
any party may have to a jury trial in every jurisdiction in any
action, proceeding or counterdaim brought by either of the
parties hereto against the other or their respective successors
or assigns in respect 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 fraudulently induced or Is otherwise void or
voidable). This waiver is a material Inducement for the parties
hereto to enter into this agreement.
k) 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 paralegal 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 connection with all appeals and appellate
proceedings relating or inddental thereto. This subsection (k)
shall sUlVive the termination of this Agreement.
J) This Agreement shall not be deemed to confer in favor of any
third parties any rights whatsoever as third party benenciaries,
IUliI.KcyWOA' Monroe Couoly}
(4.1-2001)
11
JUL-17-~1 15,a2 ~~UM'MUN~Uc ~UUNTY ATTY UY~ICE IO,a052S23516
PAGE 1 3/ 1 3
the parties hereto intending by the provisions hereof to conter
no such benefits or status.
IN WITNESS WHEREOF, Service Company and Developer have executed this Agreement
as of the day and year first above written.
KW RESORT UTlUTlES CORP.
Print Name
Address
By:
Title
SEAL)
Attest: DANNY L. KOLHAGE, derk
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNlY, flORIDA:
By
By
Deputy Clerk
Mayor/Chairman
STATE OF
)
) 55:
)
COUNTY OF
The foregoing instrument was acknowledged before me this
2001, by
day of
, as
behalf of said
has produced
corporation.
, a Florida corporation, on
He/she is personally known to me or who
as identification.
My Commission Expires:
STATE OF
)
) 55:
)
COUNTY OF
The foregoing instrument was acknowledged before me this
. 2001, by
day of
, as
behalf of said
has produced
, a Florida corporation, on
He/she is personally known to me or who
as identification.
corporation.
My Commission Expires:
(Ulil-K.eyWCSI. M_ Counly)
(4.1.2001)
12
..
(~Crr
UTILITY AGREEMENT
THIS UTIliTY AGREEMENT ("Agreement"), dated as of the _ day of , 2001,
by and between KW Resort Utilities Corp., a Florida corporation, having its office(s) at 6450 Junior
College Road, Key West, Florida, 33040 ("Service Company"), and The County of Monroe, 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 Exhibit
"A", attached hereto and made a part hereof (the "Property").
B. County currently operates a jail and detention center on the Property ("Detention
Facility"), 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, THEREFORE, 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. On-Site Facilities
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 Treatment
Plant.
The County shall construct the following facilities, which it agrees to
convey at no charge to the service company at the time of connection to the
Service Company's svstem:
A. A second lift station serving the Public Buildings located at the
Animal Shelter.
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
(Util-KeyWest- Monroe County)
(4-1-2001)
1
~o,( P1
Service Company shall construct a reuse ("graywater") line to
Detention Facility, and agrees to make available a minimum of 32,000
gallons per day ("gpdn) of graywater 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 Dav" - shall mean any day of the year in which commercial banks
are not required or authorized to close in New York, New York.
"Central Sewaae Svstem" - shall mean the central sewage system owned
and operated by the Service Company.
"Customer" - shall mean the Countv. an)' resideRtial or commcr-ci;)1
customer of Service Compan.,..
"Equivalent Residential Connections" - (ERC), 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 Delivery" - shall mean the point at which the county lines enter the
three-lift station conveyed to the Service Company.
"Prooertv Installations" - shall mean any service lines located on individual
lots or parcels of the Property, on the County side of the Point of Delivery,
"Service Companv's Affiliates" - shall mean any disclosed or undisclosed
officer, director, employee, trustee shareholder, partner, principal, parent,
subsidiary or other affiliate of Service Company.
"SiRale family Installations" shall mean an"f service IiRes, '.vhich CORnect
single family residences or lots to the Centrol ConRection LiFles.
"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. System Construction
Service Company shall design and construct at its sole expense offsite
facilities to connect the county lift station at the Detention Facility to the
(Util-KeyWest- Monroe County)
(4-1-2001)
2
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
Company's 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, Bay Shore Manor, the Animal Shelter and other shall
pay the applicable tariffs. For instance if the Detention Center uses a 4"
meter and the Public Service Building has a r meter then the County's rate
shall be $605.62 + $196.35 plus $2.92 per thousand gallons per month.
4. SYstem Decommissionarv
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
engineering, permitting, and removing the existing plant the lesser of
$10.000 or the sum of said costs.
5. PrODertv Riahts
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. If the Service Comoanv discontinues
service to the County property for whatever reason. then the
easements granted to this section will lapse and expire and the
County orooertv so encumbered will be free and clear of such
easements. lanauaae similar to the foregoing must aooear in the
easements filed for record. The Service Company aarees to orovide
and execute the documents necessarv to extinauish such easements.
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. Rates.fees.Charaes
(Util-KeyWest- Monroe COlDlty)
(4-1-2001)
a)
All Customers will pay the applicable fees, rates and charges as set
forth in the Tariff. Nothing contained 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.
3
b) County shall pay to Service Company a reservation fee
("Capacity Reservation Fee"), in the amount of Two
Thousand Seven Hundred ($2,700.00) dollars per E.R.C.
connections to be reserved by County to serve the Property
(individually, a "Connection", collectively, the "Connections").
The initial reservation shall be for 454 ERC'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 connection shall be payable by
County to Service Company as follows:
(i) 1/3, upon completion of the connection (estimated at
this time to be $408,600).
(ii) 1/3, one year after connection completion.
(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 @ (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
e) 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 Capacity
Reservation Fee hereunder, which default is not cured as Drovided in
paraaraph 12. hereof. 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(c)(i), hereafter
6(c)(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 office in Key West, Florida. The mention of 6(c)(i) funds
includes all accumulated interest. The terms of the escrow are as follows:
a)
When the Service Company begins substantial physical construction
to expand the capacity of its wastewater treatment plant or tAe
e>EtcAsion of to extend its wastewater collection infrastructure .. ~
enginccring, legal, pipes ;::md lift St;:JtiORS), to a ditional areas
in South Stock Island or other islands,then the escrow agent will Serve
release the 6(c)(i) funds to the Service Company in the following
4
(Util-KeyWest- Monroe COImty)
(4-1-2001)
manner: the payments will be made monthly in ~n amount cqual to
thc per-ccntage of the work completed that mORth ot:Jt of the total
plant expansioR project eaual amounts based on the exoected
completion date of the expansion as set forth in the Service
Company's construction documents. Release of said funds shall be
made by escrow agent upon presentation of construction invoices
(includina costs of real estate acauisition. purchase or installation of
oioes and lift stations. and professional services: orovided that such
costs are exclusivelv attributable to such expansion of capacity or
extension of collection infrastructure) to be paid by Service
Company along with a statement from Service Company describing
the construction for which the invoices seek payment. County
hereby agrees to fi:qt:Jire enforce. through Code Enforcement
oroceedings. its ordinance reauiring all property owners located
within Service Company's service area to connect to Service
Company's System and to pay the tariff applicable tariff to such
connection. In the event of breach hereof bv County which breach
contJnues after notice and reasonable oooortunity to cure as
orovided in Paraaraoh 12. below. 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 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 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 purchase) resulting in the
FKAA acquiring a controlling interest in the Service Company, a
long-term lease of the physical assets, or any other transaction that
results in the FKAA assuming the obligation to operate 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(c)(i) funds to the Service Company.
8. Absolute Conveyance
(Util-KeyWest. Monroe County)
(4-1.2001)
Except as orovided elsewhere in this contract reaarding the reconveance of
oropertv and the extinaulshment of easements if service is discontinued.
County understands, agrees and acknowledges that County's conveyance
of the On-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
form or manner.
5
9. Deliverv of Service; Maintenance
(llt'IA~1 ""Iff .s^cuIl
~ VTO(4Iiflh '6. "R~IH.
or- r,. VI iDn /III" fit r Nle fJr"
I~ oCc~ ~Q ~
sARlI hr I~ CDl'f';""cR
I ;~~ 'b ~CR. ~
.J.iH ~h1' ;'/I~ b)
fJ;ttftfAt.s "pt IIJIdSSIIA'f
,(~'If.( ~6n),
a)
Upon County's full performance of its obligations under this
Agreement, connection as orovided in section 1. 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 operate and maintain the System in accordance with the terms
and 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 service on October
31, 2001 thru no fault of Service Company, then all cost of
alternath7e sewage disposal shall be County's until service is
provided. "}., Service means that the Service CompanY will process.
treat and dispose of wastewater and will ooerate its system: in
comollance with the aualitv and orocess standards reauired by DEP
and the Service Company: in accordance with industry standards as
they develop and any FKAA. County. or City of Key West
r uirem nts. and in a m nn r th does not se or cause he I h
nvil'! nmen I ris or m rvi also mean rnishin
of graywate~described in section)J '} ...__rl..l.~ ~~
. r ----,~yJ I ../~
County shall, at its sole cost and expense, own, operate and maintain
all Property Installations, which have not been conveyed to Service
Company pursuant to the terms 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 shall 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 any extra expense of operating the
Detention Center lift station as a result af resultina from 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 maintenance by
County .
e)
County shall only provide domestic waste water for treatment by
Service Company. No water from air conditioning systems or
swimming pools shall flow into the wastewater disposal system.
f)
The Service Comoany agrees to keeo its system in aood reoair. in full
operatina condition in compliance with applicable law and to
promotly remedy all breakdowns. spills. contaminations and other
acts of environmental damac;le or oollution.
10. ReDair of System
,OF/
In the event of any material damage to or destruction't6 any portiOR of the
System aWRed, of the lift stations located on County orooertv operated or
maintained by Service Company due to any acts or omissions by County, or
their respccti\.<c its agents, representatives, employees, invitees, 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
(Util-KeyWest- Monroe County) 6
(4-1-2001)
County. County shall pay all costs and expenses associated with such repair
or replacement within thirty (30) days after receipt of any invoice from
Service Company setting forth any such costs and expenses.
County shall ol3crate, maintain and repair all ether portions of the System
on its side of the Point of Deli./cry at its solc cost and expcnse.
11. Term
--
12.
13.
(Util-KeyWest- Monroe County)
(4-1-2001)
This Agreement shall become effective as of the day of
, 2001, and shall continue for 99 years so long as Service
Company, its successor or assignees, provides sewer service to the 1*f'&He
Countv. and the Countv's successors and assians.
Default
In the event of a default by either party of its duties and obligations
hereunder, the non-defaulting party shall provide written notice to the
\ defaulting party specifying the nature of the default and the defaulting party
shall have five (5) fifteen 15 days to cure any default of a monetary nature
and thirty (30) days for any other default/ If the default has not been cured
within the applicable period (time 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 damages, injunctive relief and
specific performance'/Service Company may, at its sole option, discontinue
and suspend the delivery of service to the System in accordance with all
'3 requirements of applicable law and the Tariff, if County fails to timely pay all
fees, rates and charges pursuant to the terms of this Agreement./ The
Countv. however. may withhold oavment. without default. if the Service
Com an fails to rovide consistent minimum wastewater and ra water
services as reauired bv section 9: causes or permits unexcused delays or
interruotions in service or commencina service: cause or oermits reoeated
or chronic failures to maintain auality standards: causes or permits damage
to Countv prooerty: causes or oermits adverse health effects to the oublic or
system users: causes or permits environmental damaae: or. exposes the
Coun or its officials and em 10 ees to suits or' Iiabili attributable
to the Service Company's conduct.
Excuse from Performance
a) Force Maieure
If Service Company is prevented from or delayed in performing any act
required to be performed by Service Company hereunder, and such
prevention or delay is cased by strikes, labor disputes, inability to obtain
labor, materials or equipment, storms, earthquakes, electric power
failures, land subsidence, acts of God, acts of public enemy, wars,
blockades, riots, acts of armed forces, delays by carriers, inability to
obtain rights-of-way, acts of public authority, regulatory agencies, or
courts, or any other cause, whether the same kind is enumerated herein,
not within the control of Service Company ("Force Majeure'), the
performance of such act shall be excused for a period equal to the period
of prevention or delay. If the Service Comoany intends to claim force
majeure as an excuse for nonperformance. then it must so notify the
Count in writin within da s of the force ma"eure event. The
7
Service Company must also undertake all reasonable measures. at its
expense. to restore full service at the earliest practical date. The County
is not obligated to Dav anv Service Company tariff. charae or fee until
service is restored.
b) Governmental Acts
If for any reason during the term of this Agreement, other than the fault
of County, other than for due conduct of the Service Company and its
aaents and representatives. and exceDt for the lawful actions and
decisions of the County in the exercise of its governmental Dowers. any
federal, state or local authorities or agencies fail to issue necessa ry
permits, grant necessary approvals or require any change in the
operation of the Central Sewage System or the System ("'Governmental
Acts"), then, to the extent that such Governmental Acts shall affect the
ability of any party to perform any of the terms of this Agreement in
whole or in part, the affected party shall be excused from the
performance thereof and a new agreement shall be negotiated, if
possible, by the parties hereto in conformity which such permits,
approvals or requirements. Notwithstanding the foregoing, neither
County nor Service Company shall be obligated to accept any new
agreement if it substantially adds to its burdens and obligations
hereunder.
c) Emeraencv Situations
Service Company shall not be held liable for damages to County and
County hereby agrees not to hold Service Company liable for damages
for failure to deliver service to the Property upon the occurrence 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;
.
.
2. Equipment or material failure in the Central Sewage Systefin or
the System, including storage, pumping and piping provided the
Service Company has uti Iized its best efforts to maintain the
Central Sewage System in good operating condition; and
3. Force Majeure, unforeseeable failure or breakdown of pumping,
transmission or other facilities, any and all governmental
requirements, acts or action of any government, public or
governmental authority, commission or board, agency, agent,
official or officer, the enactment of any statute, ordinance,
resolution, regulation, rule or ruling, order, decree or judgment,
restraining order or injunction of any court, including, without
limitation, Governmental Acts.
d) Notwithstanding any excuse of performance due to the occurrence of
an.! of the f()regoing events, County shall not be excused from
pa./ment of ~JAY fees, charges and riltes due to Ser....ice Coml3;:my
under the terms of tl=lis Agreement (including vt'ithout limitation, the
Capacity Reservation Fee and ConRection Charges).
14. Successors and Assians
(Util-KeyWest- Monroe County) 8
(4-1-2001)
This Agreement and the easements granted hereby, shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns.
15 Indemnification
g} To the Extent authorized by Section 768.28, FS, the County agrees to
indemnify and hold harmless the Service Company for claims, demands,
causes of action, losses, damages, and liabilities that arise out of the
neQligent 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.
b) The Service Comoanv aarees to indemnify and hold harmless the
Countv for claims. demands. causes of action. losses. damages and liabilities
that arise out of the nealiQent act(s) or omission(s) of any Service Company
officer. emplovee. contractors (including subcontractors emoloved bv a
Service Companv contractor) and aaents in connection with the
maintenance. expansion and operation of the svstem. includina those acts or
omissions that result in environmental damaae or pollution.
16 Notices
All notices, demands, requests or other communications by either party
under this Agreement shall be in writing and sent by (a) first class U.S.
certified or registered mail, return receipt requested, with postage prepaid,
or (b) overnight delivery service or courier, or (c) telefacsimile or similar
facsimile transmission with receipt confirmed as follows:
If to Service Company:
KW Resort Utilities Corp.
6450 Junior College Road
Key West, Florida 33040
Fax (305)294-1212
. With a copy to:
W. Smith
11 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
With a copy to:
County Attorney
PO Box 1026
Key West, FL 33041
18. Tariff
This Agreement is subject to all of the terms and provision of the Tariff. In
the event of any conflict between the Tariff and the terms of this
Agreement, the Tariff shall govern and control.
(Util-KeyWest- Monroe County)
(4-1-2001)
9
19. Miscellaneous Provisions
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 signed by or on behalf of the party to be charged.
b) All prior statements, understandings, representations and
agreements between the parties, oral or written, are
superseded by and merged in this Agreement, which alone
fully and completely expresses the agreement between them
in connection with this transaction and which is entered into
after full investigation, neither party relying upon any
statement, understanding, representation or agreement made
by the other not embodied in this Agreement. This
Agreement shall be given a fair and reasonable construction in
accordance with the intentions of the parties hereto, and
without regard to or aid of canons 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 hereunder 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 has
expired) shall 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 or 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.
f) 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 construed to modify, explain or
alter any of the terms, covenants or conditions herein
contained.
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 laws. In
(Util-KeyWest- Monroe COUDty) 10
(4-1-2001)
. .
the event that the Florida Public Service commission loses or
relinquishes its authority to regulate 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
shall be governed 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) If any provision of this Agreement shall be unenforceable or
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.
Notwithstanding the foregoing sentence, if (i) any provision of
this Agreement is finally 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 final determination
by notice to the other. If such party so elects to terminate this
Agreement, then this Agreement shall be terminated and
neither party shall have any further rights, obligations or
liabilities hereunder, except for any rights, obligations or
liabilities which by this specific terms of this Agreement survive
the termination of this Agreement.
j) The parties hereto do hereby knowingly, voluntarily,
intentionally, unconditionally and irrevocably 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 hereto against the other or their respective successors
or assigns in respect 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 fraudulently induced or is otherwise void or
voidable). This waiver is a material inducement for the parties
hereto to enter into this agreement.
k) 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 paralegal 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
(Util-KeyWest- Monroe COlBlty) 11
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. .
same shall automatically be deemed to include the fees and
expenses in connection with all appeals and appellate
proceedings relating or incidental thereto. This subsection (k)
shall survive the termination of this Agreement.
I) 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 WHEREOF, Service Company and Developer have executed this Agreement
as of the day and year first above written.
KW RESORT UTILITIES CORP.
Print Name
Address
By:
Title
SEAL)
Attest: DANNY L. KOLHAGE, Clerk
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA:
By
By
Deputy Clerk
Mayor/Chairman
STATE OF
)
) ss:
)
COUNTY OF
The foregoing instrument was acknowledged before me this
2001, by
day of
, as
behalf of said
has produced
, a Florida corporation, on
He/she is personally known to me or who
as identification.
corporation.
My Commission Expires:
STATE OF
)
) ss:
)
COUNTY OF
The foregoing instrument was acknowledged before me this
, 2001, by
day of
, as
behalf of said
has produced
corporation.
He/she
is
, a Florida
personally known to
as identification.
corporation, on
me or who
My Commission Expires:
jdconKWUtilities
(Util-KeyWest- Monroe County)
(4-1-2001)
12