Item C05 C.5
Co �� � ,�� ,' BOARD OF COUNTY COMMISSIONERS
�� Mayor David Rice,District 4
The Florida Keys � Mayor Pro Tem Craig Cates,District I
y Michelle Coldiron,District 2
James K.Scholl,District 3
Ij Holly Merrill Raschein,District 5
County Commission Meeting
July 20, 2022
Agenda Item Number: C.5
Agenda Item Summary #10746
BULK ITEM: Yes DEPARTMENT: Engineering/Roads
TIME APPROXIMATE: STAFF CONTACT: Debra London (305) 453-8754
N/A
AGENDA ITEM WORDING: Rescind Board Approval of Keys Energy Services Line Extension
Agreement (item D8 May 18, 2022) and approve revised version which adds purchase order and
payment terms to the Keys Energy Services Line Extension Agreement in the amount of
$133,775.09 to provide 3 Phase electrical power for the Sands Subdivision SLR Roadway and
Drainage Project, Big Pine Key.
ITEM BACKGROUND:
Staff negotiated the payment terms with Keys Energy Services however, after the BOCC approved
and executed the agreement on May 18, 2022 (not yet executed by Keys Energy Services, the utility)
the utility notified staff that to provide for a purchase order and payment upon completion terms,
(instead of upfront payment in full) the utility would have to modify the agreement language. The
grant of easement agreement remains as approved on May 18, 2022 and recorded on June 14, 2022.
The Sands subdivision SLR Roadway and Drainage Pilot Project will construct a "pump and treat"
storm water drainage system, elevate roads to a target elevation of 19 inches NAVD 88, and
construct drainage structures, wet wells, pollution treatment device, and a related elevated pump
station with a back-up emergency generator, pre-treatment, wet wells, pumps, piping, electrical
controls, instrumentation, and injection well(s) for final disposal of treated storm water.
The WSP USA Inc design of the drainage infrastructure and pump station equipment requires
installation of 3 phase electrical power to the County owned lots on Avenue C and Father Tony
Way, which will house the pump station. This electrical power will be provided by Keys Energy
Services as outlined in the utility line extension and easement agreements.
PREVIOUS RELEVANT BOCC ACTION:
May 18, 2022 — the BOCC approved the Keys Energy Services Line Extension Agreement and a
Utility Easement Agreement in the amount of $133,775.09 to provide 3 Phase electrical power for
the Sands Subdivision SLR Roadway and Drainage Project, Big Pine Key, to be executed and
Packet Pg. 102
C.5
budgeted in 2022 in order for the project to proceed. The project is partially funded by a DEO
CDBG HUD grant IR026.
CONTRACT/AGREEMENT CHANGES:
N/A
STAFF RECOMMENDATION: Approval of a Keys Energy Services Line Extension. Revised
from May 18th document.
DOCUMENTATION:
Sands Keys Energy -rescinded version
Keys Energy Services- Line Extension Agreement(Revised) [31315 Avenue C; Big Pine Key] (6-
16-22) [JXD Stamped & Signed]
FINANCIAL IMPACT:
Effective Date: execution by Keys Energy
Expiration Date: completion and final acceptance of construction
Total Dollar Value of Contract: $133,775.09
Total Cost to County: $133,775.09
Current Year Portion: $133,775.09
Budgeted: no
Source of Funds: 102-22562
CPI: N/A
Indirect Costs: N/A
Estimated Ongoing Costs Not Included in above dollar amounts: N/A
Revenue Producing: No If yes, amount:
Grant: not funding this scope
County Match:
Insurance Required: no
Additional Details: DEO CDBG grant funds the construction and CEI,but this electrical
power scope/cost was not identified at time of grant application.
05/18/22 NEW COST CENTER ADDED $133,775.09
102-22562 Sands SLR
REVIEWED BY:
Judith Clarke Completed 06/21/2022 2:11 PM
Christine Limbert Completed 06/22/2022 2:47 PM
Purchasing Completed 06/22/2022 2:59 PM
Budget and Finance Completed 07/01/2022 11:29 AM
Brian Bradley Completed 07/01/2022 3:29 PM
Lindsey Ballard Completed 07/05/2022 1:44 PM
Board of County Commissioners Pending 07/20/2022 9:00 AM
Packet Pg. 103
STANDARD ELECTRIC EXTENSION AND INSPECTION AGREEMENT
LINE EXTENSION"0M—UG-
Dwner:
Premises:
Within aCBRS System Unit?Yes____orNoX check one
Line Extension and Inspection Services Charge:
Line Extension Description: 4 POLES AND 150 LINEAR FEET (collectively,the"Line Extensiono
C8RS Escrow Deposit, if Applicable: N/A CCBRS Escrow Deposit U)
Estimated Construction Period: X
[ate: -�
AGREEMENT (this "Agneementj, made as of the Effective [ate, by and between the Owner, identified above, and the
UTILITY BOARD OF THE CITY OF KEY WEST, FLORIDA, DBA KEYS ENERGY SERVICES, organized and existing under the laws o[the
State of Florida, hereinafter called"KEYS",with an address of 1001 James Street,Key West, Florida 33040. �
�
WHEREAS,the Owner has applied to KEYS for electric service nn Owner's Premises identified above; and
WHEREAS, KEYS' present distribution system does not extend to the Premises and the Line Extension described above is W
needed to provide electric service to the Premises;and
WHEREAS, KEYS would not be justified in making said Line Extension prior to the receipt n[payment in full for the cost ofthe
Line Extension; and
.
WHEREAS, the cost of the Line Extension is the Line Extension Charge set forth above provided the Line Extension is built in c
accordance with the E.R. report incorporated herein and attached as Exhibit"A"without any changes requested by Owner;and >
WHEREAS, in the future the Line Extension may serve certain parcels in addition to the Premises asdepicted on attached
Emhibit"A" (the"Adjacent Parce|s'). The Adjacent Parcels currently do not have electric service from KEYS, but in the event the Line '
Extension is used to serve one or more of the Adjacent Parcels within ten (10)years after the Effective Date, then KEYS will collect a m
2!
portion of the Line Extension Charge from each customer using the Line Extension in accordance with this Agreement;and .
WHEREAS, if the Premises are in an area designated as a[ba$o| Barrier Resource System Unit("CBR8^) as identified above,
than certain electrical facilities may not be eligible for FEMA reconstruction funding after hurricane nrother natural disaster (a �
^Disa$e/1, and KEYS requires the CBRS Escrow Deposit in the amount set forth above for potential costs of repairing the Line —
Extension in the event ofa Disaster.
NOW, THEREFORE, VVITVESSETH, that for and in consideration of the mutual covenants and agreement hereafter eg forth '
for the parties hereto covenant and agree asfollows:
PAYMENT OBLKGA71ONS FOR THE LINE EXTENSION CHARGE
ARTICLE I. Upon Owner's execution of this Agreement, Owner shall pay KEYS: (i) the Line Extension Charge in full,
and, IF APPLICABLE, (ii) the C8RS Esznmv Deposit in full. The Line Extension Charge set forth above is sut8s1 to change, if the
executed line extension agreement and payment is not received within 90 days from the effective date identified above or if the Owner
initiates any site changes that result in revisions Uo the site layout.ARTICLE II.II. d`an owner nfanAdjacent Parcel seeks to establish electric service to an Adjacent Parcel by use of the Line
Extension within ten (10) yeas after the Effective Date o[this Agreement, then KEYS will change such owner a portion of the Line
Extension Charge (and a portion n[the CBRS Escrow Deposit, if applicable) in the amounts shown onExhibit"A"for each Adjacent
Parcel(or the pro-rata portion oy the Line Extension Charge). If there are no Adjacent Parcels nrno reimbursement amounts shown on
Exhibit"A", then there shall be no reimbursement to Owner and this Article will not apply. KEYS shall reimburse the Owner 8596o[
the amounts it receives from the owners of such Adjacent Parcels for connection of their property to the Line Extension, provided KEYS
actually receives such funds from owners of Adjacent Parcels within hen (1U)years after the Effective Date. After ten (1O)years from
the Effective Date KEYS shall have no obligation to collect any portion of the Line Extension Charge from owners of Adjacent Parcels,
and Owner acknowledges and agrees that he will receive nn reimbursement for any portion of the Extension charge after ten (10)
1
KEYS ln�� Owner Initials
years from the Effective Date. The total reimbursement to Owner under this Article shall not exceed the Line Extension Charge actually
paid by the Owner to KEYS. Notwithstanding anything in this Agreement to the contrary, KEYS will not pay Owner any refunds or
reimbursements in connection with the Line Extension if Owner is in default in the payment cfany sumo due to KEYS for electric
service or otherwise. Owner acknowledges that there is no guaranty that any portion of the Line Extension Charge will ever be
reimbursed to Owner. Owner also acknowledges and agrees that any right to reimbursement of the Line Extension Charge(andCBRS
Escrow Deposit, if applicable) set forth in this Agreement is not personal to Owner but rather will automatically run with title to the
Premises so that any reimbursement payable by KEYS pursuant to this Agreement will be paid to the owner of the Premises at the time
such reimbursement may become due and payable.
TITLE AND OWNERSHIP OFLINE EXTENSION
ARTIC0EDl. Owner acknowledges and agrees that ha shall not have any rights of ownership or use cf the Line Extension
or any portion thereof. Title to, and complete ownership and control over the Line Extension, shall at all times remain in KEYS, and
KEYS shall have the right to use the same for the purpose of service to other customers,or for other purposes in its sole discretion.
EASEMENTS AND RIGHTS
ARTICLE IV. As a condition to the provision of electric service to the Premises, the Owner will execute and deliver to
KEYS,and without cost to KEYS,any and all easements and all rights, permits and privileges which KEYS deems necessary or expedient
for the rendering of electric service to the Premises or the installation of the Line Extension. Receipt by KEYS of valid, executed —
easement in a form acceptable to KEYS and receipt of documentation sufficient to KEYS documenting the recording of the easement in
the Official Records of Monroe County,Florida are conditions precedent to the provision of electric service. '
TRI0WN0DNGTREES/CLEARING/SITE PREPARATION/PRIMARY0KNE REMOVAL AND RELOCATION
AR17CLEV. It is expressly understood and agreed that the Line Extension Charge does not include any cost of trimming W
or removing trees or other obstructions from the Premises or from any right-of-way in order for the Line Extension to be safely and
properly constructed andanyrequired |inesorequiAmentin$a||ed. All such clearing,tree removal,trimming and site preparation sha|| 0
�
be performed ai Owner's expense, and KEYS shall not be required to begin construction of the Line Extension until such clearing and �~
trimming is completed ho KEYS satisfaction. If the scope of work for the Line Extension requires removal of overhead primary lines or
conversion of overhead primary lines to underground, such work shall be undertaken pursuant to the "Removal cf KEYS' Overhead .
High Voltage Primary Facilities"section of KEYS'current Customer Service Policy Manual,which section is expressly incorporated herein c
by reference. >
PROCEEDING WITH WORK
ARTICLE VI. KEYS m
. �
Owner/agent uy all surveys,site plans,elevations and other materials requested or needed byKEYS. Approval by the Owner/agent can .
be submitted via letter and initialing of the final drawing or an email to the KEYS'Project Manager and such approval shall be binding
upon Owner. After the design has been completed and approved by KEYS and by the Owner or his agent and all the Owner's
obligations fully satisfied, the Construction Period set forth above will commence. Any delays resulting from the Owner/agent,directly c
or indirectly, will allow KEYS toadd additional time tu the Construction Period and increase the LineExtension Charge accordingly, at —
KEYS discretion. The Construction Period will NOT commence upon submittal of payment to KEYS or as of the Effective Date or
execution date cf this Agreement. Furthermore, while KEYS anticipates completion of the Line Extension within the Construction �e
|
Period,nothing in this Agreement will be construed asaguanantyorwenantybyKEYSu[anyoompkgiondateorconstmcLionachmJule
and Owner acknowledges that construction uf the Line Extension may be delayed for many reasons, including,but not limited ho acts of
God and prioritization of work. Any additional work requested outside of this agreement, will require a letter from the Owner/agent �
authorizing KEYS or its subcontractors tn perform the additional work. KEYS shall provide an estimated cost and the Owner/agent mhaU approve the the additional cost and submit payment prior to the commencement of the additional work. Any delays or impacts tnthe
project as a result of the additional requested work shall not be paid by KEYS.
COASTAL BARRIER RESOURCE SYSTEM(CBRS)-ESCROW-LIEN �
AR RCLE0I. If the Premises have been identified to be within an area designated as a Coastal Barrier Resource System
Unit, Owner acknowledges and agrees that KEYS shall have no obligation to pay any sum for repairs or reconstruction of the Line
Extension in the event mfaDisaster. Furthermore, KEYS shall have no obligation to reconstruct or repair the Line Extension or provide
service b»the Premises inthe event of a Disaster unless the owners of parcels served by the Line Extension have collectively deposited
with KEYS sufficient funds to repair or reconstruct the Line Extension. Regardless of the foregoing, Owner authorizes KEYS to repair or
reconstruct the Line Extension at Owner's expense in the event of a Disaster and to deduct from any CBRS Escrow Deposit the total
internal and external ousts incurred by KEYS for such repair orreconstruction. In the event KEYS elects to repair the Line Extension
without advance payment for the total costs of repair or reconstruction, and such costs exceed the CBKS Esznmv Deposit or no CBKS
Escrow Deposit exists at that time,then KEYS will bill,and Owner(and the owners of the,�Addjacentoa|s who receive service through
2
KEYS In Owner Initials
the Line Extension)will pay the pro-rata portion of such total repair costs by dividing such total repair costs among the parcels served
by the Line Extension at the time of the Disaster. To minimize the possibility of delay in repair m reconstruction pending advanced
payment to KEYS, Owner shall establish the CBRS Escrow Deposit in the amount described above and the CBRS Escrow Deposit will
remain in place in perpetuity,or until such obligation is waived in writing by KEYS. However, regardless of the existence uf the CBRS
Escrow Deposit, Owner shall be obligated to pay the entire internal and external costs or expenses that may be incurred by KEYS for
repair nr replacement uf the Line Extension after a Disaster(up toa maximum cf the total cost cf repair or reconstruction divided by
the number ofparcels connected to KEYS electric service from the Line Extension at the time of the Disaster) and this obligation will
continue in perpetuity or until such obligation is waived in writing byKEYS. Owner acknowledges and agrees that any CBRS Escrow
Deposit held by KEYS will be held by KEYS for the benefit of the Premises and will automatically run with title to the Premises mmthat
any rights associated with the CBRS Escrow Deposit will be in favor of the owner of the Premises as ownership may change from time
to time.
The CBRS Escrow Deposit will not be held in a separate bank account, but only a deposit referenced on KEYSs records and
may beooming|ed with other funds at KEYS discretion. The CBRS Esznmv Deposit shall be in KEYS'name and KEYS shall have total
mnUn| of such funds under the terms herein. Interest earned, at the rate paid to KEYS by its depository institutions for short term
deposit accounts, will be credited tn the CBRS Escrow Deposit. In the event KEYS uses all or part ufthe CBRS Escrow Deposit for
repair or reconstruction of the Line Extension, the Owner shall replenish the CBRS Eycnmv Deposit upon demand so that the CBRS 0
Escrow Deposit remains at the amount set forth above. Failure to replenish the CBRS Escrow Deposit isa default cf this Agreement �
entitling KEYS to suspend electric service to the Premises and all other rights as set forth herein. ~J
Notwithstanding the foregoing, Owner hereby authorizes KEYS to make repairs to or reconstruct the Line Extension in the
event o[any damage regardless cf whether the CBRS Escrow Deposit, if any, is sufficient to pay for all such repairs. All of the costs nf
repair or reconstruction, together with interest, and all costs and expenses of collection, including reasonable attorneys'fees, are a �
continuing charge on the Premises and KEYS shall have a right to lien the Premises for the payment cfsuch funds. This Agreement
constitutes constructive nnUcetoa|| mubueluexLpurchaoaoond/urcredKomycfthoexigenceofKEYS'|ienhghts. KEYS from time to '
time may record a Notice of Lien in the public records for the purpose of evidencing the lien established by this Article and the priority �
of the Notice of Lien shall be based on the time and date of recording the Notice of Lien in the public records. mu
Any sum reflected in any Notice of Lien not paid within 30 days after its due date bears interest at the highest per annum rate
of interest allowed by law. KEYS may bring an action at law against the Owner and/or foreclose its lien against the Premises subject to
the Notice cfLien. The lien for sums claimed pursuant to this Article may be enforced by judicial foreclosure in the same manner in
which mortgages on real property may be foreclosed in the State ofFlorida. In any such foreclosure,the Owner is required to paya|| '
co�s and expenses of foreclosure, including reasonable attorneys' fees and all such costs and expenses are secured by the lien �
foreclosed. Owner iadeemed io acknowledge condusk �
conclusively consent that all sums due to KEYS pursuant tu this Article are for the >
improvement and maintenance of any homestead thereon and that KEYS'lien has priority over any such homestead.
JOINDER IN THIS AGREEMENT BY OWNERS OF ADJACENT PAKCELSISUCCESSORS AND ASSIGNS
AR]ICLEVIII. KEYS may require a joinder to this Agreement, in form and substance acceptable to KEYS in its absolute '
discretion, from the Owner and from the owner ufeach Adjacent Parcel that applies for electrical service through the Line Extension
(the^NoUce'l. The Notice shall be executed before two (2) subscribing witnesses, notarized and recorded in the public records Of
Monroe County, Florida at the property owner's expense. Receipt by KEYS of an original recorded Notice is a condition to the provision W
of electric service 8oa parcel nr home served by the Line Extension.
ARTICLE IX. This Agreement shall inure 10 the benefit uf and be binding upon the respective heirs,legal representatives, ^�|
successors and assigns mf the parties hereto. Further, this Agreement shall run with the land and be binding upon the successors in
title of Owner. This Agreement shall continue in perpetuity, unless otherwise modified in writing by the Owner and KEYS, nrtheir c
respective successors and/or assigns. u�
OWNERSHIP OF PREMISES
ARTICLEX. Owner covenants with KEYS and represents and warrants to KEYS that, on the Effective Date Owner is
solely seized of the Premises in fee simple and has good right to create,establish,and impose this Agreement on the Premises without
the joinder of any other person. In the event KEYS determines this Agreement has not been validly executed by all persons orentities
who have an ownership interest in the Premises(including homestead rights), KEYS may discontinue electric service tmthe Premises at
any time. Owner also covenants and warrants to KEYS that the Property is free and deer of any and all liens, mortgages, or
encumbrances that could impair Owner's rights to impose this Agreement nn the Premises.
`
DEFAULT
ARTICLE XI. If(a)Owner fails to perform any of its obligations as described in this Agreement,or(b)a receiver is appointed
for Owner,or(c)there is falsity in any material respect of,or any material omission in,any representation or statement made to KEYS
by or on behalf ofthe Owner in connection with this Agreement, or (d) Owner is dissolved if Owner is a corporation or other entity,
3
KEY3lniti�s Owner Initials
�
I Packet Pg. 106
C.5.a
then Owner shall be in default of this Agreement if such default is not cured within twenty days after notice of the default is provided
to Owner then KEYS will be entitled to all remedies at law or in equity to enforce this Agreement. In addition,if Owner fails to pay any
sums due pursuant to this Agreement, KEYS may elect to terminate or suspend construction of the Line Extension and may elect to
terminate or suspend electric service to the Premises. If Owner asserts that KEYS has failed to perform any of its obligations set forth
in this Agreement, Owner shall give KEYS written notice specifying the obligation(s) KEYS has failed to perform and providing KEYS
with thirty(30)days to cure the asserted default. Provided,however,that if the nature of the specified obligation(s)is such that more
than thirty(30)days are required for performance,then KEYS shall not be in default if KEYS commences performance within such 30-
day period and thereafter prosecutes the same to completion.
GENERAL TERMS
ARTICLE XII. Time is of the essence to all terms of this Agreement. This Agreement shall not become effective until it
has been executed by all of the parties hereto, but shall be effective as of the Effective Date. This Agreement may be executed by a 0
representative of Owner pursuant to a power of attorney or other document satisfactory to KEYS in its sole discretion. This Agreement
may be executed in any number of counterparts, each of which, when so executed and delivered, shall be an original, but each
counterpart shall together constitute one and the same instrument.This Agreement, signatures, initials, documents referenced in this
Agreement, counterparts, and written modifications communicated electronically or on paper will be acceptable for all purposes,
including delivery,and will be binding with the same force and effect as originals. This Agreement shall be construed under the laws of
the State of Florida. This Agreement shall not be construed more strongly against any party, regardless of who was more responsible
for its preparation. All rights, powers and remedies provided herein may be exercised only to the extent that the exercise thereof does
not violate any applicable laws and are intended to be limited to the extent necessary so that they will not render.this Agreement 2
invalid or unenforceable. If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, the validity of the
other terms of this Agreement shall in no way be affected thereby. In the event it becomes necessary for either party herein to seek
legal means to enforce the terms of this Agreement, the non-prevailing party will be liable for all reasonable attorneys' fees and
expenses, including such fees and expenses incurred due to appellate, bankruptcy or post judgment proceeding, plus court costs.
Venue and jurisdiction for purposes of determining any parties rights and/or interests under this Agreement,or any legal or equitable
action whatsoever, shall be in the Florida State Court system in Monroe County, Florida, and in no other place or court system. No
waiver of any breach of this Agreement shall be held to be a waiver of any other or subsequent breach. All remedies afforded in this
Agreement shall be taken and construed as cumulative; this is, in addition to every other remedy provided therein or by law. The
failure of a party to enforce at any time any of the provisions of this Agreement,or to exercise'any option which is herein provided,or
to require at any time performance by the other party of any of the provisions hereof,shall in no way be construed to be a waiver or
create an estoppel from enforcement of such provisions, or in any way to affect the validity of this Agreement or any part thereof, or
the right of either party to thereafter enforce each and every such provision, or to seek relief as a result of the prior breach. This
Agreement contains the entire understanding of the Parties and supersedes all previous verbal and written agreements and >
understandings pertaining to the subject matter of this Agreement.
ARTICLE XIII. ALL PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EACH MAY
HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION
WITH THIS AGREEMENT,AND ANY AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION THEREWITH,OR ANY COURSE
OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN), OR ACTIONS OF ANYONE IN CONNECTION
THEREWITH.
IN WITNESS WHEREOF,this Agreement is effective as of the Effective Date. '
Owner's signature:
U)
I
(SEAL) BOARD OF COUNTY COMMISSIONERS y
Attest: KEVIN MADOK,Clerk OF MONROE COUNTY,FLORIDA
�p p�ACee
C�..Tr IM�M[• W
E
By; By; MONROE COUNTY ATrORNBY
D rAs uty Clerk Mayo &2ihO 0 nndr�o �
CHRISTINE LIMBERT-HARROWS
�- ASSISTANT COUNTY ATTORNEY
Date J 126U DATE: 4/27/22
UTILITY BOARD-CITY OF KEY WEST,FLORIDA
Account# By:
ER# 2907-20 Title:
4
KEYS Ini Owner Initials
Packet Pg. 107
C.5.b
STANDARD ELECTRIC EXTENSION AGREEMENT
LINE EXTENSION"856"
Owner: MONROE COUNTY, 1100 SIMONTON ST,SUITE 205, KEY WEST, FL 33043 ("Owner'l
as
Premises: 31315 AVE C, BIG PINE KEY, FLORIDA ("Premises'l
Within a CBRS System Unit?Yes or No X check one
as
CL
Line Extension Charge: $133,775.09 ("Line Extension Charae'l E
Line Extension Description: 4 POLES AND 150 LINEAR FEET (collectively,the"Line Extension'l
CBRS Escrow Deposit, if Applicable: N/A C'CBRS Escrow Deposit'sZi
04
Estimated Construction Period: 90 days after the Line Extension design has been approved by all parties("Construction Period'
e
Date: 6/15/2022 ("Effective Date's
3Z
AGREEMENT (this "Agreement"), made as of the Effective Date, by and between the Owner, identified above, and the UTILITY as
BOARD OF THE CITY OF KEY WEST, FLORIDA, DBA KEYS ENERGY SERVICES, organized and existing under the laws of the State of Florida, qy
hereinafter called"KEYS",with an address of 1001 James Street, Key West, Florida 33040.
CL
WHEREAS,the Owner has applied to KEYS for electric service on Owner's Premises identified above;and
WHEREAS, KEYS'present distribution system does not extend to the Premises, and the Line Extension described above is needed to
provide electric service to the Premises; and
WHEREAS, KEYS has agreed to accept a purchase order from the Owner as justification for making said Line Extension prior to the
receipt of payment in full for the cost of the Line Extension. The said Owner shall pay in full for the Line Extension Charge upon completion
within 30 days from invoice to KEYS; and
WHEREAS, the cost of the Line Extension is the Line Extension Charge set forth above provided the Line Extension is built in
accordance with the E.R. report incorporated herein and attached as Exhibit"A"without any changes requested by Owner; and
as
U)
WHEREAS, in the future the Line Extension may serve certain parcels in addition to the Premises as depicted on attached Exhibit
"A", (the"Adjacent Parcels"). The Adjacent Parcels currently do not have electric service from KEYS, but in the event the Line Extension is
used to serve one or more of the Adjacent Parcels within ten (10) years after the Effective Date, then KEYS will collect a portion of the Line
Extension Charge from each customer using the Line Extension in accordance with this Agreement;and
as
E
WHEREAS, if the Premises are in an area designated as a Coastal Barrier Resource System Unit ("CBRS") as identified above, then
certain electrical facilities may not be eligible for FEMA reconstruction funding after a hurricane or other natural disaster (a "Disaster"), and
KEYS requires the CBRS Escrow Deposit in the amount set forth above for potential costs of repairing the Line Extension in the event of a
Disaster.
0
U)
NOW, THEREFORE, WITNESSETH, that for and in consideration of the mutual covenants and agreement hereafter set forth for the
parties hereto covenant and agree as follows:
PAYMENT OBLIGATIONS FOR THE LINE EXTENSION CHARGE as
ARTICLE I. Upon Owner's execution of this Agreement, Owner shall furnish to KEYS: (i) a purchase order for the Line
Extension Charge, and, IF APPLICABLE, (ii) payment of the CBRS Escrow Deposit in full. Owner agrees and shall pay in full the Line Extension as
�s
Charge upon completion within 30 days from invoice to KEYS. The Line Extension Charge set forth above is subject to change, if the executed
line extension agreement and payment is not received within 90 days from the effective date identified above or if the Owner initiates any site qy
changes that result in revisions to the site layout.
ARTICLE II. If an owner of an Adjacent Parcel seeks to establish electric service to an Adjacent Parcel by use of the Line (Li
-
Extension within ten (10)years after the Effective Date of this Agreement, then KEYS will charge such owner a portion of the Line Extension
Charge (and a portion of the CBRS Escrow Deposit, if applicable) in the amounts shown on Exhibit"A"for each Adjacent Parcel (or the pro-
rata portion of the Line Extension Charge). If there are no Adjacent Parcels or no reimbursement amounts shown on Exhibit"A",then there
shall be no reimbursement to Owner and this Article will not apply. KEYS shall reimburse the Owner 85% of the amounts it receives from the
owners of such Adjacent Parcels for connection of their property to the Line Extension, provided KEYS actually receives such funds from
owners of Adjacent Parcels within ten (10) years after the Effective Date. After ten (10) years from the Effective Date KEYS shall have no as
1 E
KEYS Initials (::�?Owner Initials
Packet Pg. 108
C.5.b
obligation to collect any portion of the Line Extension Charge from owners of Adjacent Parcels, and Owner acknowledges and agrees that he
will receive no reimbursement for any portion of the Line Extension charge after ten (10) years from the Effective Date. The total
reimbursement to Owner under this Article shall not exceed the Line Extension Charge actually paid by the Owner to KEYS. Notwithstanding
anything in this Agreement to the contrary, KEYS will not pay Owner any refunds or reimbursements in connection with the Line Extension if .
Owner is in default in the payment of any sums due to KEYS for electric service or otherwise. Owner acknowledges that there is no guaranty
that any portion of the Line Extension Charge will ever be reimbursed to Owner. Owner also acknowledges and agrees that any right to tm
reimbursement of the Line Extension Charge (and CBRS Escrow Deposit, if applicable)set forth in this Agreement is not personal to Owner but °®
rather will automatically run with title to the Premises so that any reimbursement payable by KEYS pursuant to this Agreement will be paid to 06
the owner of the Premises at the time such reimbursement may become due and payable.
as
CL
TITLE AND OWNERSHIP OF LINE EXTENSION E
ARTICLE III. Owner acknowledges and agrees that he shall not have any rights of ownership or use of the Line Extension or
any portion thereof. Title to, and complete ownership and control over the Line Extension, shall at all times remain in KEYS, and KEYS shall
have the right to use the same for the purpose of service to other customers,or for other purposes in its sole discretion.
04
04
EASEMENTS AND RIGHTS
e
ARTICLE IV. As a condition to the provision of electric service to the Premises,the Owner will execute and deliver to KEYS,and
without cost to KEYS, any and all easements and all rights, permits and privileges which KEYS deems necessary or expedient for the rendering 3Z
of electric service to the Premises or the installation of the Line Extension. Receipt by KEYS of a valid,executed easement in a form acceptable as
to KEYS and receipt of documentation sufficient to KEYS documenting the recording of the easement in the Official Records of Monroe County, as
Florida are conditions precedent to the provision of electric service.
CL
TRIMMING TREES/CLEARING/SITE PREPARATION/PRIMARY LINE REMOVAL AND RELOCATION
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ARTICLE V. It is expressly understood and agreed that the Line Extension Charge does not include any cost of trimming or
removing trees or other obstructions from the Premises or from any right-of-way in order for the Line Extension to be safely and properly
constructed and any required lines or equipment installed. All such clearing,tree removal,trimming and site preparation shall be performed at
Owner's expense, and KEYS shall not be required to begin construction of the Line Extension until such clearing and trimming is completed to
KEYS satisfaction. If the scope of work for the Line Extension requires removal of overhead primary lines or conversion of overhead primary
lines to underground, such work shall be undertaken pursuant to the"Removal of KEYS'Overhead High Voltage Primary Facilities"section of
KEYS'current Customer Service Policy Manual,which section is expressly incorporated herein by reference.
PROCEEDING WITH WORK
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ARTICLE VI. KEYS will commence final design of the Line Extension for Owner/agent approval upon submission by the
Owner/agent of all surveys, site plans, elevations and other materials requested or needed by KEYS. Approval by the Owner/agent can be as
submitted via letter and initialing of the final drawing or an email to the KEYS' Project Manager and such approval shall be binding upon
Owner. After the design has been completed and approved by KEYS and by the Owner or his agent and all the Owner's obligations fully
satisfied, the Construction Period set forth above will commence. Any delays resulting from the Owner/agent, directly or indirectly, will allow E
KEYS to add additional time to the Construction Period and increase the Line Extension Charge accordingly, at KEYS discretion. The
Construction Period will NOT commence upon submittal of payment to KEYS or as of the Effective Date or execution date of this Agreement.
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Furthermore, while KEYS anticipates completion of the Line Extension within the Construction Period, nothing in this Agreement will be
construed as a guaranty or warranty by KEYS of any completion date or construction schedule and Owner acknowledges that construction of
the Line Extension may be delayed for many reasons, including, but not limited to acts of God and prioritization of work. Any additional work °
requested outside of this agreement, will require a letter from the Owner/agent authorizing KEYS or its subcontractors to perform the
additional work. KEYS shall provide an estimated cost and the Owner/agent shall approve the additional cost and submit payment prior to the
commencement of the additional work. Any delays or impacts to the project as a result of the additional requested work shall not be paid by
KEYS. as
COASTAL BARRIER RESOURCE SYSTEM (CBRS) -ESCROW- LIEN
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ARTICLE VII. If the Premises have been identified to be within an area designated as a Coastal Barrier Resource System Unit, °
Owner acknowledges and agrees that KEYS shall have no obligation to pay any sum for repairs or reconstruction of the Line Extension in the ?-
event of a Disaster. Furthermore, KEYS shall have no obligation to reconstruct or repair the Line Extension or provide service to the Premises
in the event of a Disaster unless the owners of parcels served by the Line Extension have collectively deposited with KEYS sufficient funds to >1
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repair or reconstruct the Line Extension. Regardless of the foregoing, Owner authorizes KEYS to repair or reconstruct the Line Extension at "-
Owner's expense in the event of a Disaster and to deduct from any CBRS Escrow Deposit the total internal and external costs incurred by KEYS
for such repair or reconstruction. In the event KEYS elects to repair the Line Extension without advance payment for the total costs of repair
or reconstruction, and such costs exceed the CBRS Escrow Deposit or no CBRS Escrow Deposit exists at that time, then KEYS will bill, and
Owner (and the owners of the Adjacent Parcels who receive service through the Line Extension) will pay the pro-rata portion of such total
repair costs by dividing such total repair costs among the parcels served by the Line Extension at the time of the Disaster. To minimize the
possibility of delay in repair or reconstruction pending advanced payment to KEYS, Owner shall establish the CBRS Escrow Deposit in the qy
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KEYS Initials Owner Initials
Packet Pg. 109
C.5.b
amount described above,and the CBRS Escrow Deposit will remain in place in perpetuity, or until such obligation is waived in writing by KEYS.
However, regardless of the existence of the CBRS Escrow Deposit, Owner shall be obligated to pay the entire internal and external costs or
expenses that may be incurred by KEYS for repair or replacement of the Line Extension after a Disaster(up to a maximum of the total cost of
repair or reconstruction divided by the number of parcels connected to KEYS electric service from the Line Extension at the time of the .
Disaster)and this obligation will continue in perpetuity or until such obligation is waived in writing by KEYS. Owner acknowledges and agrees
that any CBRS Escrow Deposit held by KEYS will be held by KEYS for the benefit of the Premises and will automatically run with title to the CID
Premises so that any rights associated with the CBRS Escrow Deposit will be in favor of the owner of the Premises as ownership may change °®
from time to time. 06
The CBRS Escrow Deposit will not be held in a separate bank account, but only a deposit referenced on KEYS's records and may be
comingled with other funds at KEYS discretion. The CBRS Escrow Deposit shall be in KEYS' name and KEYS shall have total control of such CL
funds under the terms herein. Interest earned, at the rate paid to KEYS by its depository institutions for short term deposit accounts, will be E
credited to the CBRS Escrow Deposit. In the event KEYS uses all or part of the CBRS Escrow Deposit for repair or reconstruction of the Line
Extension,the Owner shall replenish the CBRS Escrow Deposit upon demand so that the CBRS Escrow Deposit remains at the amount set forth
above. Failure to replenish the CBRS Escrow Deposit is a default of this Agreement entitling KEYS to suspend electric service to the Premises
and all other rights as set forth herein.
04
Notwithstanding the foregoing, Owner hereby authorizes KEYS to make repairs to or reconstruct the Line Extension in the event of
any damage regardless of whether the CBRS Escrow Deposit, if any, is sufficient to pay for all such repairs. All of the costs of repair or
reconstruction,together with interest,and all costs and expenses of collection, including reasonable attorneys'fees,are a continuing charge on
the Premises, and KEYS shall have a right to lien the Premises for the payment of such funds. This Agreement constitutes constructive notice
to all subsequent purchasers and/or creditors of the existence of KEYS'lien rights. KEYS from time to time may record a Notice of Lien in the as
public records for the purpose of evidencing the lien established by this Article and the priority of the Notice of Lien shall be based on the time as
and date of recording the Notice of Lien in the public records.
CL
Any sum reflected in any Notice of Lien not paid within 30 days after its due date bears interest at the highest per annum rate of °®
interest allowed by law. KEYS may bring an action at law against the Owner and/or foreclose its lien against the Premises subject to the Notice IM
of Lien. The lien for sums claimed pursuant to this Article may be enforced by judicial foreclosure in the same manner in which mortgages on
real property may be foreclosed in the State of Florida. In any such foreclosure, the Owner is required to pay all costs and expenses of
foreclosure, including reasonable attorneys'fees and all such costs and expenses are secured by the lien foreclosed. Owner is deemed to
acknowledge conclusively and consent that all sums due to KEYS pursuant to this Article are for the improvement and maintenance of any
homestead thereon and that KEYS'lien has priority over any such homestead.
T-
JOINDER IN THIS AGREEMENT BY OWNERS OF ADJACENT PARCELS/SUCCESSORS AND ASSIGNS
ARTICLE VIII. KEYS may require a joinder to this Agreement, in form and substance acceptable to KEYS in its absolute
discretion, from the Owner and from the owner of each Adjacent Parcel that applies for electrical service through the Line Extension (the
"Notice"). The Notice shall be executed before two (2)subscribing witnesses, notarized and recorded in the public records of Monroe County, °
Florida at the property owner's expense. Receipt by KEYS of an original recorded Notice is a condition to the provision of electric service to a as
parcel or home served by the Line Extension.
ARTICLE IX. This Agreement shall inure to the benefit of and be binding upon the respective heirs, legal representatives, E
successors and assigns of the parties hereto. Further, this Agreement shall run with the land and be binding upon the successors in title of
Owner. This Agreement shall continue in perpetuity, unless otherwise modified in writing by the Owner and KEYS, or their respective
CID
successors and/or assigns.
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OWNERSHIP OF PREMISES
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ARTICLE X. Owner covenants with KEYS and represents and warrants to KEYS that, on the Effective Date, Owner is solely
X
seized of the Premises in fee simple and has good right to create, establish,and impose this Agreement on the Premises without the joinder of
any other person. In the event KEYS determines this Agreement has not been validly executed by all persons or entities who have an
ownership interest in the Premises (including homestead rights), KEYS may discontinue electric service to the Premises at any time. Owner
also covenants and warrants to KEYS that the Property is free and clear of any and all liens, mortgages, or encumbrances that could impair
Owner's rights to impose this Agreement on the Premises.
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ARTICLE XI. If(a)Owner fails to perform any of its obligations as described in this Agreement,or(b)a receiver is appointed for Owner, or(c) >1
there is falsity in any material respect of, or any material omission in, any representation or statement made to KEYS by or on behalf of the qy
Owner in connection with this Agreement,or(d)Owner is dissolved if Owner is a corporation or other entity,
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KEYS Initials C Owner Initials U
Packet Pg. 110
C.5.b
then Owner shall be in default of this Agreement if such default is not cured within twenty days after notice of the default is provided to Owner
then KEYS will be entitled to all remedies at law or in equity to enforce this Agreement. In addition, if Owner fails to pay any sums due
pursuant to this Agreement, KEYS may elect to terminate or suspend construction of the Line Extension and may elect to terminate or suspend
electric service to the Premises. If Owner asserts that KEYS has failed to perform any of its obligations set forth in this Agreement,Owner shall :
give KEYS written notice specifying the obligation(s) KEYS has failed to perform and providing KEYS with thirty (30) days to cure the asserted
default. Provided, however, that if the nature of the specified obligation(s) is such that more than thirty (30) days are required for CD
performance,then KEYS shall not be in default if KEYS commences performance within such 30-day period and thereafter prosecutes the same °®
to completion.
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GENERAL TERMS C
ARTICLE XII. Time is of the essence to all terms of this Agreement. This Agreement shall not become effective until it has been
executed by all of the parties hereto, but shall be effective as of the Effective Date. This Agreement may be executed by a representative of
Owner pursuant to a power of attorney or other document satisfactory to KEYS in its sole discretion. This Agreement may be executed in any
number of counterparts, each of which, when so executed and delivered, shall be an original, but each counterpart shall together constitute
one and the same instrument. This Agreement, signatures, initials, documents referenced in this Agreement, counterparts, and written "4
modifications communicated electronically or on paper will be acceptable for all purposes, including delivery, and will be binding with the same
force and effect as originals. This Agreement shall be construed under the laws of the State of Florida. This Agreement shall not be construed
more strongly against any party, regardless of who was more responsible for its preparation. All rights, powers and remedies provided herein
may be exercised only to the extent that the exercise thereof does not violate any applicable laws and are intended to be limited to the extent
necessary so that they will not render this Agreement invalid or unenforceable. If any provision of this Agreement shall be held to be invalid, as
illegal or unenforceable, the validity of the other terms of this Agreement shall in no way be affected thereby. In the event it becomes as
necessary for either party herein to seek legal means to enforce the terms of this Agreement, the non-prevailing party will be liable for all
reasonable attorneys' fees and expenses, including such fees and expenses incurred due to appellate, bankruptcy or post-judgment
proceeding, plus court costs. Venue and jurisdiction for purposes of determining any parties rights and/or interests under this Agreement, or °®
any legal or equitable action whatsoever, shall be in the Florida State Court system in Monroe County, Florida, and in no other place or court
system. No waiver of any breach of this Agreement shall be held to be a waiver of any other or subsequent breach. All remedies afforded in
this Agreement shall be taken and construed as cumulative;this is, in addition to every other remedy provided therein or by law. The failure of
a party to enforce at any time any of the provisions of this Agreement, or to exercise any option which is herein provided, or to require at any
time performance by the other party of any of the provisions hereof, shall in no way be construed to be a waiver or create an estoppel from
enforcement of such provisions, or in any way to affect the validity of this Agreement or any part thereof, or the right of either party to
thereafter enforce each and every such provision, or to seek relief as a result of the prior breach. This Agreement contains the entire
understanding of the Parties and supersedes all previous verbal and written agreements and understandings pertaining to the subject matter of
this Agreement.
ARTICLE XIII. ALL PARTIES HEREBY KNOWINGLY,VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EACH MAY HAVE TO
A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS
AGREEMENT, AND ANY AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION THEREWITH, OR ANY COURSE OF CONDUCT, as
COURSE OF DEALING,STATEMENTS(WHETHER VERBAL OR WRITTEN),OR ACTIONS OF ANYONE IN CONNECTION THEREWITH.
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IN WITNESS WHEREOF,this Agreement is effective as of the Effective Date. E
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Owner's signature:
MONROE COUNTY"ATTORNEYS OFRCE
APPROVED AS TO FORM
(SEAL) BOARD OF COUNTY COMMISSIONERS
Attest: KEVIN MADOK, Clerk OF MONROE COUNTY, FLORIDA j
STANT COUNTY ATTORNEY
By: By: GATE: -j7-7n77
As Deputy Clerk Mayor --
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Date 2
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UTILITY BOARD -CITY OF KEY WEST, FLORIDA
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Account # By:
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ER# 2907-20 Title: as
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KEYS Initials Owner Initials
Packet Pg. 111
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