08/16/2001 Agreement
CLERK OF THE CIRCUIT COURT
MONROE COUNTY
BRANCH OFFICE
MARATHON SUB COURTHOUSE
3117 OVERSEAS HIGHWAY
MARATHON, FLORIDA 33050
TEL. (305) 289-6027
FAX (305) 289-1745
MONROECOUNTYCOURTHOU~
500 WHITEHEAD STREET
KEY WEST, FLORIDA 33040
TEL. (305) 292-3550
FAX (305) 295-3663
BRANCH OFFICE
PLANTATION KEY
GOVERNMENT CENTER
88820 OVERSEAS HIGHWAY
PLANTATION KEY, FLORIDA 33070
TEL. (305) 852-7145
FAX (305) 852-7146
MEMORANDUM
DATE:
August 30, 2001
TO:
J ames Hendrick
County Attorney
FROM:
J an Hotalen, Assistant
County Attorney's Office
Pamela G. Hanco~~
Deputy Clerk 0
ATTN:
At the August 16, 2001, Board of County Commissioner's meeting the Board granted
approval and authorized execution of the Utility Agreement between Monroe County and KW
Resort Utilities Corp., as revised.
Enclosed is a duplicate original of the Agreement for your handling, as well as a copy for
your records. Should you have any questions please do not hesitate to contact this office.
cc: County Administrator w/o document
Finance
File ./
UTILITY AGREEMENT
THIS UTILI1Y AGREEMENT ("Agreement"), dated as of the 16thday of August, 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 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 al)d appurtenant facility to be conveyed to
Service Company are hereinafter referred to as "On-Site Facilities". All On-
Site Facilities, laterals and Property Installations shall be in good working
order upon connection to Service Company's system. Prior to commencing
construction on the second lift station serving the Public Buildings, County
shall provide Service Company with construction plans for approval by
(UtiI-KeyWest- Monroe County)
(4-1-2001)
1
Service Company, which approval shall not be unreasonably withheld. If the
Service Company discontinues service to the County property for whatever
reason (other than nonpayment or default by County) then the on-site
facilities will be reconveyed by the Service Company to the County at no
charge.
Service Company shall construct a reuse ("graywater") line to Detention
Facility, and agrees to make available a minimum of 32,000 gallons per day
("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
"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 Sewaqe System" - shall mean the central sewage system owned
and operated by the Service Company.
"Customer" - shall mean the County.
"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.
"prooerty 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.
"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
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
(Util-KeyWest- Monroe County)
(4-1-2001)
2
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.
Notwithstanding Utility's Tariff, Utility agrees to treat all of County's re-use
water, including air conditioning re-use water. County agrees to pay Utility
for treating re-use water based upon a four-inch meter and Utility's current
tariff, the re-use meter shall be read daily. The County represents that no
re-use water is disposed via shallow injection well.
4. System Decommissionary
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 to the cost of the engineering,
permitting, and removing the existing plant the lesser of $10,000 or the
sum of said costs.
5. ProDerty 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 property for whatever reason, then the
easements granted to this section will lapse and expire and the
County property so encumbered will be free and clear of such
easements. Language similar to the foregoing must appear in the
easements filed for record. The Service Company agrees to provide
and execute the documents necessary to extinguish 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
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.
(Util-KeyWest- Monroe County)
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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
thi? 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 Capacity
Reservation Fee hereunder, which default is not cured as provided in
paragraph 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 to extend
its wastewater collection infrastructure to serve additional areas in
South Stock Island or other islands 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 equal amounts based
4
(Util-KeyWest- Monroe County)
(4-1-2001)
on the expected 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 (including costs of real estate acquisition, purchase or
installation of pipes and lift stations, and professional services;
provided that such costs are exclusively 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 enforce, through Code
Enforcement proceedings, its ordinance requiring all property owners
located within Service Company's service area to connect to Service
Company's System and to pay the tariff applicable to such
connection. In the event of breach hereof by County which breach
continues after notice and reasonable opportunity to cure as provided
in Paragraph 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 Convevance
Except as provided elsewhere in this contract regarding the reconveance of
property and the extinquishment 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.
9. Deliverv of Service: Maintenance
a) Upon connection as. provided in section 1, Service Company shall
provide service to the Point of Delivery in accordance with the terms
(Util-KeyWest- Monroe County) 5
(4-1-2001)
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 February 15, 2002 In the event that
Service Company is unable to provide service on February 15, 2002
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 Company will process, treat and dispose of
wastewater and will operate its system: in compliance with the
quality and process standards required by DEP and the Service
Company; in accordance with industry standards as they develop and
any FKAA, County, or City of Key West requirements; and, in a
manner that does not pose or cause health or environmental risk or
damage (provided, that should any violation of health or
environmental rule or law occur, service company shall be in
compliance herewith if service company promptly undertakes and
completes any necessary remedial action). Service also means the
furnishing of graywater, described in section 1, meeting industry
standards.
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 d~sires 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 any extra expense of operating the Detention
Center lift station resulting 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 Company agrees to keep its system in good repair, in full
operating condition in compliance with applicable law and to promptly
remedy all breakdowns, spills, contaminations and other acts of
environmental damage or pollution.
10. ReDair of System
In the event of any material damage to or destruction of any of the lift
stations located on County property operated or maintained by Service
Company due to any acts or omissions by County, or its agents,
representatives, employees, imiitees, 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 all
costs and expenses associated with such repair or replacement within thirty
(Util-KeyWest- Monroe County)
(4-1-2001)
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(30) days after receipt of any invoice from Service Company setting forth
any such costs and expenses.
11.
Term
r"l.
ThisAAgreement 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 County's successors and assigns.
~
12. 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 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
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
County, however, may withhold payment, without default, if the Service
Company through no fault of the County: fails to provide consistent
minimum wastewater and graywater services as required by section 9;
causes or permits unexcused delays or interruptions in service or
commencing service; cause or per:mits repeated or chronic failures to
maintain quality standards; causes or permits damage to County property;
causes or permits adverse health effects to the public or system users;
causes or permits environmental damage; or, exposes the County or its
officials and employees to suits or liability attributable to the Service
Company's conduct.
13. 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 Company intends to claim force
majeure as an excuse for nonperformance, then it must so notify the
County in writing within ten business days of the force majeure event.
The Service Company must also undertake all reasonable measures, at
its expense, to restore full service at the earliest practical date. The
(Util-KeyWest- Monroe County)
(4-1-2001)
7
County is not obligated to pay any Service Company tariff, charge or fee
until service is restored.
b) Governmental Acts
If for any reason during the term of this Agreement, other than for due
conduct of the Service Company and its agents and representatives, and
except for the lawful actions and decisions of the County in the exercise
of its governmental powers, 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 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 System or
the System, including storage, pumping and piping provided the
Service Company has utilized its best efforts to maintain the
Central Sewage System in good operating condition; and
3. Force Majeure, unfqreseeable 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.
14. Successors and Assians
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
a) To the Extent authorized by Section 768.28, FS, the County agrees to
indemnify and hold harmless the Service Company for claims, demands,
(Util-KeyWest- Monroe County)
(4-1-2001)
8
causes of action, losses, damages, and liabilities that arise out of the
negligent 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 agrees to indemnify and hold harmless the
County for claims, demands, causes of action, losses, damages and liabilities
that arise out of the negligent act(s) or omission(s) of any Service Company
officer, employee, contractors (including subcontractors employed by a
Service Company contractor) and agents in connection with the
maintenance, expansion and operation of the system, including those acts or
omissions that result in environmental damage 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.
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.
(Util-KeyWest- Monroe County)
(4-1-2001)
9
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 cons,titute a waiver of any other or further right
or remedy nor shall any single or partial exercise of any right
or remedy precl,ude 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 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
(Util-KeyWest- Monroe County) 10
(4-1-2001)
(Util-KeyWest- Monroe County)
(4-1-2001)
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 arid 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' f.ees 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 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.
11
IN WITNESS WHEREOF, Service Company and Developer have executed this Agreement
as of the day and year first above written.
KW RESORT UTILITIES CORP.
BY:~~
Title . ! 1 ~n:
BOARD OF COUNTY COMMISSIONERS
OF MON E COUNTY, FLOR DA
APPROV~D
A AL AS To FORM
Ui=. IE C
R BERT N
DATE~_' .'
-~I
uiL
~regOing instrument was acknowledged before.. e this d 3 day of
:z ' Gi1u buW-' S , as
fr~ . W 1- ~ ~ Florida corporation, on behalf of said
corp~Il' ~e/shZ js personally known to me or who has produced
J.R../ 5 ..A (,.P --it .AtLas identification. .e.ibt~ {L~
My Commission Expires: OFFICIAL SEAL -0- - (J-
AI:Ue~y,HANNON
NOl'MV'. OF IlliNOIS
IV . . . ES 2.8.2005
STATE OF / L- L-I /JolS )
) ss:
COUNTY OF e..- 0 0 fC"~ )
STATE OF FLORIDA )
) ss:
COUNTY OF MONROE )
The foregoing instrument was acknowledged before me this day of July,
2001, by , as Mayor of Monroe
County, a political subdivision of the State of Florida. He is personally known to me. C)
My Commission Expires:
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(Util-KeyWest- Monroe County)
(4-1-2001)
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EXHIBIT A
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THIS INSTRUMENT PREPARED BY:
John R. Jenkins, Esquire
Rose, Sundstrom & Bentley, LLP
2548 Blairstone Pines Drive
Tallahassee, FL 32301
(850) 877-6555
GRANT OF EASEMENT
TillS GRANT OF EASEMENT is made this _day of 200_, by
(AGrantor@), whose address is
to K. W. Resort Utilities Corp., (AGrantee@), whose address is
6450 Junior College Road, Key West, Florida 33040,
WITNESSETH, that Grantor, its successors and assigns, for and in consideration of the sum of
Ten and No/100 Dollars ($10.00) and other good and valuable consideration to it in hand paid by Grantee,
the receipt and sufficiency of which is hereby acknowledged, grants and conveys a utility easement, in
perpetuity, over, in, through and under the property described in Exhibit AA@ attached hereto and made a
part hereof (Property@), Notwithstanding the foregoing, in the event Grantee discontinues service for any
event other than non-payment or default by Grantor then the easement granted shall lapse and expire.
1. Grantor permanently grants, sets over, conveys and delivers to Grantee, it successors and
assigns, the nonexclusive right, privilege and easement to construct, reconstruct, lay and install, operate,
maintain, relocate, repair, reconnect, replace, improve, remove and inspect sewer transmission and
collection facilities, reuse transmission and distribution facilities and all appurtenances thereto, and all
appurtenant equipment in, under, upon, over and across the Property with full right to ingress and egress
through the Property for the accomplishment of the foregoing rights.
2, This Grant of Easement is a reservation and condition running with the Property and shall be
binding upon the successor and assigns of Grantor, all purchasers of the Property and all those persons or
entities acquiring right, title or interest in the Property by, through or under Grantor.
3. The Grantor warrants that it is lawfully seized in fee simple of the land upon which the above-
described easement is situated, and that it has good and lawful authority to convey said land or any part
thereof or interest therein, and said land is free from all encumbrances and that Grantor will warrant and
defend the title thereto against the lawful claims of all persons whomsoever,
4, All easements and grants herein shall be utilized in accordance with established generally
accepted practices of the water and sewer iNdustry and all rules, regulations, ordinances, and laws
established by governmental authorities having jurisdiction over such matters,
5. Grantor retains, reserves and shall continue to enjoy the use of the surface of the above
described property for any and all purposes that do not interfere with Grantee=s use of the subject
easement, including the right to grant easements for other public utility purposes. Grantor, its successors
or assigns, may change the grade above Grantee=s installed facilities, or perform any construction on the
surface of the above described property which is permitted hereunder; however, if the change in grade
and/or construction requires the lowering relocation and/or protection of Grantee=s installed facilities (such
protection to include but not limited to the construction of a vault to protect the pipes), such lowering,
relocation and/or protection shall be performed at the sole cost and expense of Grantor, its successors or
assigns .
6, If in the future any portion of any driveways, sodded areas, gardens or plantings shall be
destroyed, removed, damaged or disturbed in any way by Grantee as a result of Grantee installing,
excavating, repairing, maintaining, replacing, reconnecting or attaching any underground sewer mains,
lines or related facilities within the foregoing described easement, Grantee=s sole obligation to restore the
surface of the easement area shall be limited to the replacement of sod and/or pavement, and Grantee shall
have no obligation, nor be responsible or liable for any e:lCpense incurred in the replacement of gardens,
plantings or trees or any boundary wall, building or structure located in the said easement area which may
have been destroyed, removed, damaged or disturbed,,,
IN WITNESS WHEREOF, the undersigned has executed this instrument this _ day of
_, 200_.
ed, and delivered in our presence,
S:
Print Name:
Print Name:
STATE OF FLORIDA
COUNTY OF MONROE
The foregoing instrument was acknowledged before me this _ day of 200_, by
who is personally know to me or who has produced
as identification,
My Commission Expires:
NOTARY PUBLIC