Item E3
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
SPECIAL MEETING
ADD ON
Meeting Date:
February 12, 2002
Division:
County Attorney
AGENDA ITEM WORDING:
Approval of agreement with Hawk's Cay Investors Ltd., the Florida Keys Aqueduct
Authority, Duck Key Wastewater Cooperative, Inc., and Utility Island, LLC, for the
Funding and Construction of Wastewater Collection Infrastructure.
ITEM BACKGROUND:
PREVIOUS RELEVANT BOCC ACTION:
CONTRACT I AGREEMENT CHANGES:
N/A
STAFF RECOMMENDATIONS:
TOTAL COST:
BUDGETED: Yes 0 No 0
COST TO COUNTY:
APPROVED BY:
County Attorney. OMB/Purchasing 0 Risk Management 0
DIVISION DIRECTOR APPROVAL: ~~
T. HE RIC
DOCUMENTATION: Included 0 To Follow Not Required 0
AGENDA ITEM #
C3
AGREEMENT FOR THE FUNDING AND CONSTRUCTION OF
WASTEWATER COLLECTION INFRASTRUCTURE
THIS AGREEMENT is entered into by Monroe County, a political subdivision of
the State of Florida, ("County"), Hawk's Cay Investors Ltd., a Florida limited partnership,
(" Hawk's Cay"), the Florida Keys Aqueduct Authority, a Florida independent special
district "(FKAA"), Duck Key Wastewater Cooperative, Inc., a Florida non-profit
corporation, ("Co-op") and Utility Island, LLC, a Florida limited liability company ("UI").
WHEREAS, Hawk's Cay owns a central wastewater treatment facility, (the
"Facility"), operated by the Co-op pursuant to a lease, which furnishes service to the
Hawk's Cay Development of Regional Impact, (the "DRI");
WHEREAS, The Facility currently has sufficient capacity to provide wastewater
treatment service to Conch Key and Walker Key and sufficient land to accommodate
expansion of the Facility to provide service to Duck Key, in all cases if the infrastructure
is built to connect those Keys to the Facility (Conch Key, Walker Key, Duck Key and
portions of the Indies Island which are not within the DRI are referred to herein as the
"New Service Area");
WHEREAS, County desires to assist in funding the construction of the needed
collection and treatment infrastructure to connect the New Service Area to the Facility,
to improve the Facility to meet the advanced wastewater treatment standard (as defined
by Florida Department of Environmental Protection) and to expand the Facility to
service Duck Key (all of which work is collectively referred to herein as the "Project");
WHEREAS, FKAA, by virtue of its enabling legislation, has jurisdiction over
central wastewater treatment facilities and their related infrastructure in the
unincorporated area of the County;
WHEREAS, UI is simultaneously entering into a contract with Co-op for the
design and construction of the Project;
WHEREAS, FKAA desires to approve an agreement among County, Co-op and
Hawk's Cay for the Project and -also desires to retain a funding pass through role in
such an agreement.
NOW, THEREFORE, in consideration of the mutual promises, benefits, and
covenants set forth below, the parties agree as follows:
1. Definitions and Basic Terms.
a) Hawk's Cay Development of Regional Impact Amendment ("DRI
Amendment"), means the amendment to the DRI set forth in Exhibit A. Exhibit A is
attached to this agreement and made a part of it.
b) Equivalent Dwelling Unit ("EDU"), is a standard unit of wastewater
consumption. The total number of EDUs within the DRI and the New Service Area is
listed on Exhibit B, attached and made a part of this Agreement. In no event shall a
single family home be allocated more than one (1) EDU per single-family lot, nor shall
the property presently owned by Hawks' Cay be allocated more than one hundred
eighty (180) EDU's (the maximum number of EDUs corresponding to the development
potential of that property).
c) All design, permitting and construction costs referred to in this Agreement will
be increased in a percentage equal to the amount of the increase in the CPI (U.S. city
average, all items). The CPI increases will become applicable starting on the one-year
anniversary of the effective date of this Agreement and on each anniversary thereafter.
d) Co-op may assign its duties under this Agreement to other entities but such
assignment will not relieve Co-op of its obligation to carry out any and all of the duties
assigned.
2. Operation of Facility.
a) Co-op agrees that during the term of this Agreement it will, at all times, reserve
sufficient capacity to serve the present wastewater treatment demands of Conch Key
and Walker Key and will accept and treat all wastewater generated at Conch Key and
Walker Key and, when the Facility is expanded, all of the New Service Area. Such
wastewater shall be delivered to the Facility through the wastewater collection
infrastructure provided for in this Agreement. During the term of this Agreement, Co-op
agrees to operate and maintain the Facility in compliance with all applicable state,
federal and local laws, regulations and ordinances.
b) Upon completion of the Project, Co-op's board will reconstitute itself with two
additional members not associated with Hawk's Cay Investors, one of whom shall be
elected from the Class A members owning property on Duck Key, and the other of
whom shall be elected from the Class A and B members owning property on Conch
Key, Walker Key and Indies Island. Three (3) years after the completion of the Project,
Hawk's Cay's entitlement to elect a majority of Co-op's Board of Directors shall cease,
whereupon two Co-op board members shall be elected from the Class A members
owning property on Duck Key and two shall be elected from the Class A and B
members owning property on Conch Key, Walker Key, and Indies Island, and one shall
be appointed by Hawk's Cay Investors.
c) Within 42 months of the effective date of this Agreement or at such sooner
time as the Facility is expanded to serve Duck Key, Co-op agrees that it will cause the
entire Facility to be upgraded to meet the advanced wastewater treatment standard (as
described above).
3. Term. The term of this Agreement is 30 years beginning on the effective date
described below, unless terminated sooner as provided for in this Agreement.
4. Proiect Timing. The parties agree that the design, permitting and construction
of the wastewater collection infrastructure for the New Service Area, to the extent not
already performed by FKAA, and the expansion of the Facility and the upgrade of the
Facility to the advanced wastewater treatment standard, is the responsibility of Co-op.
The design, permitting and construction schedule for the foregoing is as follows:
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(i) Within 6 months of the effective date of this Agreement, all aspects of
the Conch Key and Walker Key wastewater collection infrastructure must be designed
and permitted;
(ii) Within 18 months of the effective date of this Agreement, the Conch
Key and Walker Key wastewater collection infrastructure will be completed and on line
providing collection and treatment service to Conch Key and Walker Key;
(iii) Within 9 months of the effective date of this Agreement, all aspects of
the Duck Key wastewater collection infrastructure will be designed and permitted;
(iv) Within 42 months of the effective date of this Agreement, the Duck
Key wastewater collection infrastructure will be completed and on line, providing
collection and treatment service to Duck Key;
(v) Within 42 months of the effective date of this Agreement, but in no
event later than the completion date of the Duck Key wastewater collection
infrastructure, the Facility expansion will be complete and the Facility upgrade to meet
the advanced wastewater treatment standard will be complete.
The above completion schedule shall be extended if delayed by the permit
approval process, delays in County's acquisition of a parcel as contemplated in
Paragraph 7 (a) below, legal challenges, disputes (including litigation with contractors
employed to construct the collection infrastructure or Facility expansion or upgrade),
acts of God, or lack of timely funding from government agencies.
5. Proiect Fundina.
a) County agrees to reimburse Co-op for the cost, in an amount not to exceed
$683,954.00, of designing and permitting the Project. The infrastructure includes, (by
way of illustration and not limitation) pipes, pumps and lift and vacuum stations, but
excluding the laterals located on private property needed to connect wastewater
generating properties to the main wastewater collection lines. The individual property
owners are responsible for the installation of laterals when notified by Co-op of service
availability. In order to receive payment for the design costs, Co-op must submit an
invoice to the County Engineer, in a form satisfactory to the Engineer and the County
Clerk that provides documentary evidence of the costs incurred by Co-op in designing
the wastewater collection infrastructure. Travel costs are reimbursable only in the
amounts set forth in Sec. 112.061, FS. County shall pay the amount requested in the
invoice, as long as it does not cause the total amount paid under this subparagraph to
exceed $683,954.00.
b) County agrees to reimburse Co-op for the construction of the Project, on a
progress payment basis, according to a schedule of values to be submitted by UI and
approved by the County Engineer. The parties agree that the payment will not exceed
$10,023,253.00 (approximately $6,809 per EDU as calculated in Exhibit B). In order to
fund the reimbursement, County agrees that it will hold a public hearing to create,
pursuant to Sec. 125.01(1), FS, and prior to the commencement of the Project, a
municipal service benefit unit (the "MSBU") for the DRI and the New Service Area.
While the MSBU will have the power to utilize grant funds and other funds from any
lawfully available source, the only power the MSBU will have to assess property owners
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within the MSBU for the capital costs of building the Project is the power to levy non-ad
valorem assessments pursuant to Sec. 197.3632, FS, or its successor statute, and to
pledge those assessments for the issuance of bonds, the proceeds of which may be
used to reimburse Co-op for the permitting and construction set forth in this Agreement.
The parties understand that the MSBU cannot levy that non-ad valorem capital cost
assessment until fiscal year 2003-2004. The MSBU may pledge the non-ad valorem
assessment revenue, as well as any other grant funds or other lawfully available non-ad
valorem revenue, as payment on bonds issued by the MSBU for the reimbursement to
Co-op for its costs incurred in the design, permitting and construction of the Project. The
MSBU may not, under any circumstances, be required to levy ad valorem taxes. No ad
valorem revenue from the County, even if lawfully available to the MSBU, may be
pledged for the payment and redemption of any MSBU bonds or other MSBU debt,
however denominated. The County does not, by its approval of this Agreement, waive
its legislative discretion with respect to the decisions whether to create the MSBU and
whether to levy a non-ad valorem assessment in an amount that suffices to fully fund
the Project. However, should the MSBU not be created, or should the MSBU decline to
levy a capital cost assessment sufficient to fund the Project, then this Agreement will
terminate with the County under no liability or obligation to pay any damages or claims
to any party to this Agreement, or to any third parties who may have relied on this
Agreement, except for the County's obligation to pay unreimbursed design and
permitting costs incurred by the Co-op. Notwithstanding any other provision of this
Agreement, Co-op and UI shall be under no obligation to proceed with construction of
the Project until receipt of County's written notice to proceed, which notice may not be
issued until the County has created the MSBU and the MSBU has levied a capital cost
assessment sufficient to fund the Project.
c) County also agrees that the MSBU will, separate from the capital assessment
referenced above, assess an annual service fee, determined as provided by law, and
will collect same through the non-ad valorem assessment method, for operation and
maintenance costs, including reserves, of the wastewater collection infrastructure and
the Facility. The parties estimate the initial amount of that operating cost assessment to
be $20.00 per EDU. This recitation shall not be construed to preclude the use of other
methods for charging and collecting operating and maintenance costs, should the use of
an alternative to the flat-fee assessment be required by law. The capital assessment
and service fee assessment will be levied separately, with separate ordinances or
resolutions authorizing each and with all statutorily required public notices clearly
indicating that they are two distinct non-ad valorem assessments.
d) Vacant, buildable lots within Duck Key, Indies Island, Conch Key, the DRI,
and Walker Key, will be subject to the capital cost non-ad valorem assessment, but not
the operations and maintenance assessment until a certificate of occupancy is issued
for a structure thereon. Notwithstanding the foregoing, the operational and maintenance
non-ad valorem assessment may be increased (or decreased) to match the costs of
operating and maintaining the Facility and wastewater collection infrastructure.
6. FKAA Authorization.
a) FKAA consents to the funding, design, construction, operation and ownership
of the Facility and Project as set forth in this Agreement. FKAA further consents to the
expansion, upgrade and ownership of the Facility as set forth in this Agreement. FKAA
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agrees to cooperate in the construction to the Project and the Facility upgrade to meet
the advanced wastewater treatment standard.
b) County agrees to reimburse FKAA for any costs incurred by FKAA prior to the
effective date of this Agreement in designing or permitting the Project contemplated by
this Agreement in an amount not to exceed $ . Co-op, UI and County further
agree that FKAA must be reimbursed for any work done after the effective date of this
Agreement by its employees or contractors in assisting County or UI in designing,
permitting and constructing the Project.
c) FKAA agrees to grant County and Co-op a perpetual easement(s), for $10 per
year, for the use of FKAA's right-of-way and adjacent real property as depicted in
Exhibit C for use for the wastewater collection infrastructure contemplated by this
Agreement and to use for wastewater collection the existing but discontinued pipe also
shown on Exhibit C. The easement(s) will automatically lapse and be of no further force
and effect if the property subject to the easement ceases to be used for the purposes
authorized by this Agreement. Exhibit C is attached to this Agreement and made a part
of it.
d) FKAA agrees to assist County in obtaining and keeping available grant funds
for the Project. The parties agree, however, that the funding agency, in consultation with
FKAA and County, has the authority to determine if the costs incurred by Co-op are
eligible for reimbursement from any available grant funds, the amount thereof, the
manner of payment, and any record keeping and audit requirements.
7. County Authorization.
a) County agrees to authorize and permit the construction, maintenance and
operation of the Project on the County owned property in the New Service Area
depicted on Exhibit D. Exhibit D is attached to this Agreement and made a part of it.
County's authorization and permission set forth in this subparagraph continues for as
long as the County owned property is used for wastewater collection infrastructure.
County agrees to acquire one parcel on Conch Key, up to four parcels on Duck Key and
one parcel on Walker Key for lift stations at no cost to Co-op. The parcels are also
depicted on Exhibit D. The County will own the lines and equipment on such parcels
and County will grant Co-op an easement for same.
b) After the installation of the pipes and any other subterranean infrastructure
under the streets within a County right-of-way, County will promptly repave the streets.
8. Construction Documents. On the effective date of this Agreement, Co-op will
provide County with its contract with UI for the design, permitting, and construction of
the Project. The contract must contain firm prices for all tasks required. The sum of (i)
the total contract price and (ii) FKAA reimbursement costs provided for elsewhere in this
Agreement, less (iii) grant proceeds paid for project costs, is the amount that the MSBU
must raise through the sale of bonds and the pledge of non-ad valorem revenue. The
total amount due from County as funding under this Agreement shall not exceed
$10,707,207. Any cost over-run (amounts owed the contractor(s) in excess of the
contract price) is the responsibility of UI except to the extent attributable to delays
caused by County or MSBU. UI shall provide payment and performance bonds in the
full amount of the contract, naming County and Co-op as dual obligees.
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9. Fundina and Records.
a) County shall notify Co-op when reimbursement funds are available, and Co-op
shall cause UI to begin the permitting and construction within 45 days of date of
notification. All requests for payment must be delivered to the County Engineer, be in a
form satisfactory to the County Clerk, and if required by bond covenants or requested
by the County Attorney, also approved by the County's bond counsel, the bond trustee
or other representative of the bondholders, and be approved by the County Engineer.
The County will make payments within 20 days of the County Engineer's receipt of the
request, unless any of the persons just enumerated determines that additional
information needed or that a correction must be made. In that case, the request will be
returned with a written explanation of the additional Information needed or the needed
correction
b) Co-op shall keep all its financial records pertaining to the Project contemplated
by this Agreement according to generally accepted accounting principles. Co-op shall
make those records available upon request to auditors employed by the Clerk, County,
FKM, or any agency supplying grant funds. If an audit exception is found requiring
repayment, Co-op shall promptly make such repayment with interest accruing at the
rate set forth in Sec. 55.04, FS, accruing from the date the event triggering the audit
exception occurred, unless the remedy of an agency supplying grant funds requires a
different result.
10. Ownership.
a) The parties agree that, during the term of this Agreement, all wastewater
collection and treatment infrastructure built pursuant to this Agreement shall be owned
by the County, upon completion of the Project. Any real property acquired by County for
lift stations, pumps, or rights-of-way, will be and remain the property of County. The
parties further agree that the County will, upon completion of the Project, enter into a
management agreement with the Co-op, whereby the Co-op will operate and maintain
the system at cost. The provisions of the management agreement shall conform to all
requirements imposed by tax law to assure that the bonds issued to finance
construction of the Project retain t~x-exempt status.
b) Hawk's Cay agrees to transfer ownership of the Facility and land sufficient for
the Facility upgrade and expansion to the Co-op, as depicted on Exhibit G, when the
MSBU has been established and a Notice of Commencement for the expansion of the
Facility is required per Chapter 713, FS. Hawk's Cay shall provide Co-op with an
owner's policy of title insurance showing that the conveyance of the Facility is not
subject to the claims of any creditors of Hawk's Cay.
c) County will retain ownership of its right-of-way and real property owned by the
County on Conch Key, Walker Key, Indies Island, and Duck Key. County shall grant
Co-op a license to use the right-of-way and County real property not specifically
acquired for wastewater infrastructure for as long as the right-of-way and real property
are used by Co-op for wastewater collection infrastructure. However, after the initial
completion of the infrastructure, any new construction or expansion of the infrastructure
on County owned property, or within any County right-of-way, must be approved by the
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County Administrator and County Engineer. This subparagraph will survive the
expiration of this Agreement.
11. Co-oP Responsibilities. Until completion of the Project, Co-op shall be
responsible for the construction and maintenance of the wastewater collection
infrastructure and the Facility. UI will construct the Project in compliance with the laws,
rules and orders of all governmental agencies having jurisdiction over the Facility and
wastewater collection infrastructure. Any fines, penalties, or order(s) to make
correctionslimprovements to the Facility and infrastructure, incurred prior to the time
that the Project is turned over to the Co-op by UI in accordance with the provisions of
their contract, shall be at the sole cost and obligation of UI and UI agrees to indemnify
and hold harmless County from any and all such fines, penalties and order(s), including
reasonable fair market value attorney's fees, and costs (including expert fees) incurred
by the County in defending against any penalties, fines or orders arising out of the
construction, operation or maintenance of the wastewater infrastructure.
12. Insurance. During the wastewater collection infrastructure construction
phase, Co-op and UI will each keep in full force and affect the insurance required in
Exhibit E-1. Once a portion or portions of the infrastructure becomes operational Co-op
must keep in full force and affect the insurance required in Exhibit E-2. For a period of
six months beginning every five years measured from the date the first portion of the
infrastructure becomes operational, the County's Risk Management Director (or
successor official) may require a modification of the insurance requirements, if, in her
opinion, the insurance requirements of the preceding five years leave County, FKAA or
Co-op exposed to an unacceptable level of liability risk. When the construction of the
infrastructure is complete, the Director of Risk Management may release Co-op and/or
UI from all, or a portion of, the requirements of Exhibit E-1. Exhibits E-1 and E-2 are
incorporated into this Agreement and made a part of it.
13. Indemnification. Notwithstanding the insurance required above, Co-op and
UI agree to indemnify and hold harmless the County and FKAA for claims, demands,
causes of action, losses, damages and liabilities that arise out of the negligent act(s) or
omission(s) of any Co-op or UI officer, employee, contractor (including subcontractors
employed by UI or any other Co-op contractor) and agents in connection with the
maintenance, construction and operation of the Facility and wastewater collection
infrastructure, including those acts or omissions that result in environmental damage or
pollution.
14. Re-Use Water. Simultaneously with the execution hereof, Co-op and Hawk's
Cay shall enter into the Re-Use Water Agreement in the form shown as Exhibit F.
Exhibit F is attached to this Agreement and made a part of it.
15. Notices. All notices, demands, requests or other communications by any
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 Co-op:
Duck Key Wastewater Cooperative
61 Hawk's Cay Blvd.
Duck Key, Fl 33050
7
If to Hawk's Cay: Hawk's Cay Investors, Ltd.
61 Hawk's Cay Blvd.
Duck Key, FL 33050
If to UI: Utility Island, LLC
c/o Toppino's Inc.
P.O. Box 787
Key West, FL 33041
If to FKAA: Florida Keys Aqueduct Authority
1100 Kennedy
Key West, FL 33040
If to County: Monroe County
Gato Building
1100 Simonton Street
Key West, FL 33040
16. Governina Law. This Agreement is governed by the laws of the State of
Florida. Venue for any litigation under this Agreement must be in a court of competent
jurisdiction in Monroe County, Florida, unless otherwise required by a governmental
agency other than County or FKAA. In the event of litigation, the prevailing party is
entitled to a reasonable market value attorney's fee plus costs from the non-prevailing
party .
17. Entire Aareement. This written Agreement constitutes the entire agreement
among the parties and supersedes any prior writings or oral representations made
amongst the parties. This Agreement may not be modified except in a writing signed by
all parties.
18. Bindina Effect. This Agreement shall be binding on the parties' heirs,
successors, and assigns, in the same manner as this Agreement binds the original
parties.
19. No Third Party Beneficiaries. This Agreement shall not be deemed to confer
in favor of any third parties any rights whatsoever as third party beneficiaries. The
parties to this Agreement intend that the provisions of this Agreement confer no such
benefits or standard.
20. No Conflict. Co-op and UI Investors warrant that neither had employed,
retained or otherwise had act on Its behalf any former County officer or employee
subject to the prohibitions of Section 2 of Ordinance No. 010-1990 or any County officer
or employee in violation of Section 3 of Ordinance No. 020-1990. For breach or violation
of this provision the County may, in its discretion, terminate this contract without liability
and may also, in its discretion, deduct from the contract or purchase price, or otherwise
recover the full amount of any fee, commission, percentage, gift, or consideration paid
to the former County officer or employee.
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21. Development Order Compliance. County recognizes and agrees that this
Agreement is in substitution for the previous obligation of Hawk's Cay, as set forth in the
Development Order for the DRI, to convey the Facility to County.
22. Effective Date. This Agreement must be signed by all parties in order to be
binding but will not take effect until the DRI amendment becomes effective. It is further
agreed that no building permits may be issued for Hawk's Cay hotel units until UI
delivers the bonds provided for in Section 8 of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year below written.
(SEAL)
Attest: DANNY L. KOLHAGE, Clerk
By
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
By
Deputy Clerk
Date
Mayor I Chairman
Date
(SEAL)
Attest:
By
Secretary
Date
HAWK'S CAY INVESTORS, LIMITED, a
Florida limited partnership
By: Hawk's Cay Management, Inc., a Florida
corporation, general partner
By
President
Date
(SEAL)
Attest:
By
UTILITY ISLAND, LLC
Secretary
Date
By:
Managing Member
(SEAL)
Attest:
By
FLORIDA KEYS AQUEDUCT AUTHORITY
By
Chairman
Secretary
Date
Date
(SEAL)
Attest:
By
Secretary
Date
DUCK KEY WASTEWATER COOPERATIVE,
INC.
By
President
Date
02Ill7 J02janPS
S:\MyFlIesIOATA_'sCayt_-... AgmIIor Fundng....2.doc:2/.I.olI2
9
-,-
EXHIBIT "F"
DUCK KEY WASTEWATER COOPERATIVE
REUSE WATER AGREEMENT
THIS AGREEMENT is made and entered into as of the _ day of
,2002 between DUCK KEY WASTEWATER COOPERATIVE, INC., a
Florida corporation not-for-profit ("DKWC"), and HAWK'S CAY INVESTORS, LTD., a
Florida limited partnership ("User").
WIT N E SSE T H:
A. User intends to transfer the "Utility Island" wastewater transmission and
treatment system (the "System") to DKWC.
B. In consideration for such transfer, DKWC will provide all reuse water, and
User is entitled to the use of all reuse water, generated by the System.
C. User desires to utilize such reuse water for irrigation of lands owned or
controlled by User as set forth on Exhibit "A" by reference made a part hereof or lands
owned or controlled by User's designee(s).
D. DKWC is willing to deliver this reuse water for such irrigation.
E. Accordingly, DKWC and User wish to enter into this Agreement providing
for the delivery of reuse water to User's property and the property of any designee of
User.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
contained herein, DKWC and User do hereby agree as follows:
1. Term. The term of this Agreement shall commence on the date of the transfer
of the System to DKWC and shall remain in effect for so long as User desires to make
use of the reuse water.
2. Quantity and Quality. DKWC agrees to provide a minimum of 100,000 gallons
per day of reuse water, subject to Section 6 hereof. DKWC does hereby agree that
User shall have the exclusive right, without charge, to use all reuse water generated by
the System and to designate other users of same, also without charge, as long as the
reuse water is used within the service area of the System.
3. Use of Reuse Water. User shall accept the reuse water delivered by DKWC
and use it for the irrigation of lands described on Exhibit "A" and lands owned by its
designees in any manner determined by User.
4. Point of Delivery. The Point of Delivery of the reuse water from DKWC to
User is shown on Exhibit "B" hereto, it being specifically recognized that the pumps and
related equipment and installations for the transmission of the reuse water are located
after the point of delivery and are therefore User's responsibility.
5. Easements and Pipina. Each party shall execute all easements, in form and
substance reasonably acceptable to the other party, necessary for the operation and
maintenance of reuse water lines to and beyond the Point of Delivery.
User shall be responsible for all operation and maintenance costs and other
expenses relating to pumps or additional piping required from the Point of Delivery to
User's irrigation system. User shall be responsible for all costs associated with required
sampling and analysis for its reuse water application site.
DKWC shall be responsible for all operation and maintenance costs relating to
the operation of the System as well as the reuse water and transmission system to the
Point of Delivery.
6. Emeraency Situations. DKWC shall not be held liable by User and User
hereby agrees not to hold DKWC liable for failure to deliver reuse water if an event
occurs preventing such delivery, provided that DKWC diligently pursues to completion
all repairs, corrections, decontamination and other actions necessary to restore reuse
water delivery. Such events shall include, but not be limited to:
(a). A lack of reuse water due to loss or lack of flow to the treatment
plant or due to process failure.
(b) Equipment or material failure in reuse water delivery including
storage, pumping and piping.
(c) Acts of God, public enemy, war, national emergency, allocation or
other governmental restrictions upon the use or availability of labor or materials,
rationing, civil insurrection, riot, racial or civil rights disorder or demonstration,
strike, embargo, flood, tidal wave, fire, explosion, bomb detonation, nuclear
fallout, windstorm, hurricane, earthquake, or other casualty or disaster or
catastrophe, unforeseeable failure or breakdown of pumping transmission or
other facilities.
7. Desianees of User. User may designate another person or entity to receive
and use reuse water generated by the System by written notice to DKWC. In such
case, User's designee shall be fully bound by the terms and conditions of this
Agreement.
Other than as to a designee of User as aforesaid, this Agreement is solely for the
benefit of the formal parties hereto and no right or cause of action shall accrue upon or
by reason hereof, to or for the benefrt of any third party not a formal party hereto.
8. Severability. If any part of the Agreement is found invalid or unenforceable by
any court, such invalidity or unenforceability shall not affect the other parts of this
Agreement if the rights and obligations of the parties contained therein are not
materially prejudiced and if the intentions of the parties can continue to be effected.
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9. Applicable Law. This Agreement and the provisions contained herein shall be
construed, controlled, and interpreted according to the laws of the State of Florida.
Venue in any action shall lie in Monroe County, Florida.
10. Extent of Aareement. This Agreement constitutes the entire Agreement
between the parties as to the use of reuse water made available by DKWC and has
been entered into voluntarily and with independent advice and legal counsel and has
been executed by the authorized representative of each party on the date written above.
This Agreement shall not be valid or enforceable until it has been signed by both
parties. Modifications to and waivers of the provisions herein shall be made in writing
and signed by the parties hereto. This Agreement shall be binding on the parties hereto
and their successors and assigns.
11. Attornevs' Fees and Costs. Should either party employ an attorney to
enforce any of the provisions of this Agreement, or defend any action instituted by the
other party, the prevailing party shall be entitled to be reimbursed by the other party for
all reasonable costs, charges and expenses including attorneys' fees, expended or
incurred in connection therewith including same on appeal.
12. Notices. All notices required pursuant to this Agreement shall be in writing,
sent by registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
DKWC:
Duck Key Wastewater Cooperative
P. O. Box 500209
Marathon, Florida 33050
Attention: John White
User:
Hawk's Cay Investors, Ltd.
1200 North Federal Highway
Suite 200
Boca Raton, Florida' 33432
Attention: Donald H. Johnson
13. Recordation. A copy of this Agreement shall be recorded in the public records
of Monroe County, Florida.
3
IN WITNESS WHEREOF, the parties hereto have set their hands and seals this _ day
of , 2002.
WITNESSES:
DUCK KEY WASTEWATER
COOPERATIVE, INC., a Florida
corporation not-for-profit
Print Name
Print Name
By:
Print
Title
STATE OF FLORIDA
COUNTY OF MONROE
The foregoing instrument was acknowledged before me this day of
2002 by as of Duck Key Wastewater Cooperative,
Inc., a Florida corporation not-for-profrt, on behalf of the corporation, who _ is personally
known to me or _ who produced a as identification.
My Commission Expires:
Notary Public, State of Florida
Print Name
WITNESSES:
HAWK'S CAY INVESTORS, LTD., a
Florida limited partnership
Print Name
By: Hawk's Cay Management, Inc., a
Florida corporation, its general partner
By:
Print
Title
Print Name
STATE OF FLORIDA
COUNTY OF MONROE
The foregoing instrument was acknowledged before me this day of
, 2002 by as of Hawk's Cay
Management, Inc., a Florida corporation, the general partner of Hawk's Cay Investors, Ltd., a
Florida limited partnership, on behalf of the corporation and partnership, who _ is personally
known to me or who _ produced a as identification.
My Commission Expires:
Notary Public, State of Florida
Print Name
S:\MyFiIes\[)ATA\Hawk'~~Key.doc
4
ISLAND UTILITIES - EXPANSION OF SEWER COLLECTION SYSTEM AND
WWTP FOR DUCK KEY AND CONCH KEY
February 6, 2002
EDU ESTIMATE TABLE
HARBOUR, CENTER, PLANTATION, AND YACHT
CLUB ISLAND
PARCEL DESCRIPTION NUMBER OF TOTAL EDU'S
P ARCELS/UNITS
Single Family 294 294
Clubhouse - 3000s.f 10 2
Multi Family-l unit 11 22
Multi Family-2 units 20 40
Multi Family-3 units 1 3
Multi Family-4 units 1 4
Multi Family- vacant with 4 10 40
units possible
Institutional 1 1
Submerged Lots 23 0
Vacant Single Family 367 367
Sub-Total: 773
INDIES ISLAND AND UTILITY ISLAND
PARCEL DESCRIPTION NUMBER OF TOTAL EDU'S
P ARCELS/UNITS
Villas - new 247 247
Villas - exist 22 22
Villas - future 28 28
Employee houses - Hawks 20 20
Cay Resort
Condominiums 24 24
Clubhouse- Hawks Cay 1 1
Resort
Hotel - Hawks Cay Resort 178 115
Commercial Building- 1 6
Hawks Cay Resort
Marina - 53 full service 1 24
slips- Hawks Cay Resort
Marina - 32 other slips 1 10
Utility Island Marina 1 9
Laundry Facilities - 3 1 14
macho - Hawks Cay Resort
Other Lots 5 6
Sub-Total: 526
CONCH KEY
NUMBER OF P ARCELS/UNITS TOTAL EDU'S
PARCEL DESCRIPTION
Motel - office 1 1
Motel- rooms 9 6
Motel - bar 1 2
Conch Trailer Court 15 15
Fire Department 1 1
Nichols Seafood - 2000 s.f. 1 9
Nichols Marina - 12 slips 1 4
Multi-Family Lots 5 15
Single-Family Units 48 48
Single-Family-Special 7 7
Coral Key Village 45 45
Walker Island-office I 1
Walker Island - sin1rle units 15 15
Walker Island - mobile 4 4
homes
Sub-Total: 173
TOTALEDU'S 1472
,