HomeMy WebLinkAboutAgreement_General_07/21/2004~~
AGREEMENT BETWEEN
THE VILLAGE OF TEQUESTA, FLORIDA
AND JUPITER HII.~LS COUNTRY CLUB, INC.,
FOR PROVISION OF BULK RAW WATER SERVICE
THIS AGREEMENT is entered into between the Village of Tequesta, a municipal
corporation organized and existing under the laws of the State of Florida (the "Village") and the
Jupiter Hills Club Inc., ("JHC"), a Florida not-for-profit corporation.
WITNESSETH:
WHEREAS, the Village provides water distribution services to the public within a recognized
service area in Palm Beach County and southern Martin County; and
WHEREAS, the Village owns and operates water production and distribution facilities
designed to provide service to consumers located within and outside the Village corporate limits; and
WHEREAS, the Village desires to make available a quantity of raw water available for a bulls
sale to JHC, on a continuous basis for a limited period of time, and further to enable JHC to receive
such service through interconnection with the Village's raw water system, and by way of master
meter/check valve assembly, receive raw water for irrigation purposes; and
WHEREAS, JHC is in need of additional ground water for irrigation purposes and has
requested that the Village provide raw, untreated, water to JHC, which JHC may treat and use for
irrigation; and
WHEREAS, JHC and the Village recognize that the Village's ability to meet the terms ofthis
Agreement is dependent upon the Village's rights and permits with the South Florida Water
Management District; and
WHEREAS, in order to effectuate the supply of this water the Village and JHC have agreed
to enter into this Bulk Raw Water Service Agreement (the "Agreement").
NOW, THEREFORE, inconsideration of the premises and covenants herein contained, the
Village and JHC agree as follows:
1. Whereas-Statements /Effective Date: The foregoing statements are true and
correct. This Agreement shall be effective upon the date that it is fully executed by both parties
(`affective Date"). The term ofthis agreement shall commence when the Village declares the service
is first available and such date shall be no later than 180 days from the date of the last execution
below.
2. ~ Agreement to Serve: The Village agrees to provide bulk non-potable raw water
service (`Bulk Service") to the JHC for i~igation purposes in accordance with the terms and
provisions of this Agreement.
450,000 gallons per day of
3. Delivery of Service: Th Village shall provide and 7HG agrees to accept, pursuant to
the terms and conditions set forth herein, a.~~a„+~"as is"raw (non-potable) water to be delivered
to JHC at the "point of delivery" as set forth herein, to be metered by the Village, for the purpose of
bulk sale flow measurement. Except as provided herein, JHC shall not take more than 450,000 gallons
per day calculated on a daily basis and rate of flow through the meter shall not exceed 312.5 gallons
per minute. The Village does not guarantee a minimum or maximum pressure at the point of
delivery. The water supplied by the Village may contain constituents, including iron and hydrogen
. sulfide, which make the water unsuitable for potable uses without treatment and the Village provides
' no representations or guazantee regazding water quality and associated color and odor and has no
obligation to remove impurities and constituents in the water. If however-is-deed-f~
the water supplied hereunder becomes unsuitable
for irrigation purposes, as determined by the Village, because ~ of chronic inability to maintain the
{ water quality within the following limits (pH 6.0-7.7, alkalinity Iess than 400 mg/l, chloride less than
150 ~mg/1), JHC may cancel this agreement, subject to the reimbursement obligation discussed below,
or suspend taking the water until such variation has been addressed to the mutual satisfaction of the
parties. The Village is under no obligation, however, to remedy the vaziation, and may chose to allow
this Agreement to lapse. Notice by JHC of such variation must be provided in writing in
accordance with the requirements stated herein and the Village shall have 90 days to evaluate and
address said concerns before JHC may take any action in this regard. JHC may also_ at any time
during the contract period, determine that the water supplied by the Village to be -is =unsuitable for
i irrigation use due to_ ~ ' ' ' =°~°°a ~''°-~° °~ the chronic
! presence of unacceptable odor and thereby elect to terminate the contract~Should JHC choose to
te_minate this agreement for any reason, whatsoever, it shall first provide the Village with a notice of
intent to terminate which shall be in writing and received by the Village a minimum of 90 days prior
- to the desired termination date. In the event of the issuance of said notice JHC shall pay the Village
~~~,e.f-~5;86@-to cover costs associated with the development, implementation and termination of this
agreement including, but not limited to, legal costs, engineering fees, administrative charges, capital
~ ~~~~ facilities costs and reasonable interest charges. The payment shall be in the full amount regardless of
!PF : ~ t actual costs incurred. Such reimbursement shall be payable at the time of the issuance of the notice of
~...,..<-~`' ~. intent to terminate. The parties agree that the "point of delivery" of service shall be that point on the
discharge side of the master meterl check valve assembly as generally depicted on EBhibit "A" which
is attached hereto and incorporated herein by reference. The Village shall be responsible for the
installation of the meter/check valve assembly at the "point of delivery". The maintenance, operation,
and repair of the Village's lines and meter up to the "point of delivery" of service shall be the
responsibility ofthe Village. JHC will be solely responsible for the maintenance, operation, and repair
of all lines and facilities on its side of the "point of delivery" of service and for the treatment and
distribution of the raw water after receipt of the water at the "point of deliver}'. JF3C shall solely be
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'K In addition, JHC may choose to terminate this Agreement at anytime, for any other season.
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responsible for obtaining ail permits and regulatory approvals, if any, for the design, construction and
operation of all facilities described here under, from the point of delivery to the point of discharge,
and for making- all changes in design and installation as may be required to ensure regulatory
compliance. JHC, subject to Village approval as to engineering design and construction, shaIl be
responsible for all piping installation beyond the "point of delivery" to the "point of discharge".
Further, the Village shall have the right to approve any proposed change in the discharge line or
outlet/outfall devices.
4. Rates: JHC agrees to pay the Village the following bulk rates for the Bulk Service.
For the first five (5) years from the Effective Date of this Agreement JHC will pay $0.300 per 1000
gallons of water (`Bulk Service rate"), for 450,000 gallons per day ("daily allocation"), and as
adjusted per the inflation index as provided below. Payment shall be due whether or not JHC takes
the daily allocation. On each annual anniversary date of the Effective Date of this Agreement, the
Village may increase the rate per thousand gallons based upon the application of the Florida Public
Service Commission utility price index, as established from time to time by the Florida Public Service
Commission pursuant to Florida Statute, Section 367.081(4)(a), as amended, to the then existing
Bulk Service rate The Village has the ability to annually index the Bullc Service rate and if an index is
not applied for a given yeaz to impose the index in the future . If JHC exceeds the daily allocation, by
3% or more, without prior written approval by the Village, the Village shall have the right, in its sole
discretion, to terminate this agreement and shall impose a surcharge equal to $1.00 per 1000 gallons
above the daily allocation. As a condition of reserving 450,000 gallons per day ofraw water capacity,
JHC agrees to pay for such capacity, whether actually used by JHC, or not. If the capacity reserved
by the Village is adjusted as provided in this agreement due to force majeure incidents or restrictions
on service, the amount charged by the Village will be adjusted pro rata by the change in such
capacity. To the extent that JHC uses in excess of 450,000 gallons per day, or as maybe adjusted'as
provided in the agreement during any particulaz day, the Village will consider the water use above,
the reserved capacity as excess water use and will bill JHC $1.00 per thousand gallons for ail metered
water use considered as excess. Nonpayment of any excess water use chazges by JHC will result in a
discontinuance of service as provided in this agreement.
5. Billing: The Village shall bill JHC each month for Bulk Service. Charges shalt be
calculated and determined based on daily consumption. Bills are due when rendered and will be
considered late if not paid within 15 days. Late fees shall be chazged in accordance with the Village's
policies and procedures. The Village will have the right to chazge any late payment fees or penalties
for the nonpayment of invoices /bills in accordance with its general policies and procedures in effect
for its utility system The Village shall have. the right to discontinue Bulk Service to JHC for non-
payment.
parties
6. Term: The initial term of this Agreement shall be five (5) yeazs. The ~lla~ shall
have the right to renew this Agreement for an additional five (5) year or different term, as mutually
agreed, at the expiration of the initial term. Written notice of~~° ~T~»~RP'C 1T1+PT+ "`
~~ ~ ~ ~o to renew shall be ;
provided to 3I4S at least ninety (90) days prior to the end of th initial five (5) year term.
~ the other party ;=,
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7. Force Ma i eure: In the event that performance of this Agreement by either party to
this Agreement is prevented or interrupted beyond the control of either party, including, but not
limited to, act,of God or the public enemy, war, terrorist act, national emergency, allocation or of
other governmental restrictions upon the use or availability of labor or materials, rationing (water
restrictions), civil insurrection, riot, radical or civil rights disorder or demonstration, strike embargo,
flood, tidal wave, fire, explosion, bomb detonation, nuclear fallout, windstorm, hurricane, earthquake,
or other casualty, disaster or catastrophe, failure or breakdown of well equipment, pumping
transmission or other facilities, governmental riles or acts, orders, restrictions or regulations of
requirements, acts or action of any government, public, governmental authority, commission, boazd,
agency, agent or official officer, the enactment of any statute, ordinance, resolution, regulation, rule,
ruling, order, decree, judgment, restraining order or injunction of any court, said party shall not be
liable for such non-performance.
8. Restrictions on Service• Villa a Ri ht to Curtail or Terminate Service: The
Village shall have the right to limit, restrict, curtail or discontinue service hereunder where demands,
including anticipated demands, on the Village system require raw water to be treated for potable
water uses and needs, whether such demands result from existing or potential customer demands,
system .failures and disruptions, resource failures, impairments and disruptions, well failures,
impairments and disruptions, regulatory constraints, restrictions or allocations. To the extent of a
system or resource failure from the raw water source which is connected to the point of delivery, the
Village will not be required to construct additional raw water wells, transmission, or metering
facilities to replace such service and the agreement will immediately terminate at the discretion of the
Village. This provision does not preclude the parties from entering into a participation agreement to
construct additional raw water facilities which would result in an amendment to this agreement. In
the event of an emergency, as determined by the Village in its sole discretion, the Village-shall have
the right to immediately use its raw water supply for highest priority uses as determined by the Village
which may result in adjustment or limitation in the service to JHC. Innon-emergency situations, the
Village shall provide 30 days written notice of any adjustments in service.
To the extent the South Florida Water Management District imposes mandatory water use
restrictions pursuant to Chapter 40E-21, Florida Administrative Code or other regulatory
requirements, upon the Village to reduce ground or raw water withdrawals, the Village shall have the
right to reduce or eliminate the daily allocation identified in Section 3 by an amount to satisfactorily
meet such restrictions. The Village will notify JHC of the imposition of the mandatory water use
restrictions and the change in capacity schedule necessary to meet such restrictions 30 days prior to
the imposition, unless more rapid adjustment is required by regulatory agencies or circumstances.
9. Venue, Laws of Florida: This Agreement shall be governed by the Iaws ofthe.State
of Florida and it shall become effective immediately upon execution by both parties hereto, subject to
any approvals which must be obtained from governmental authority, if applicable, and subject to all
conditions precedent for the rendering of service as set forth in this Agreement. Venue for any
litigation arising out of this Agreement shall be in Palm Beach County, Florida.
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10. Notice: Any and all written notices required or permitted to be given hereunder shall
be deemed received upon hand delivery or facsimile transmission, or three (3) days if same are
deposited in the U.S. mail, and sent via certified mail, return receipt requested.
All notices to the Village shall be sent to:
VILLAGE: Village Manager
Village of Tequesta
357 Tequesta Drive
Tequesta, Florida 33469
(561) 575-6200
(561) 575-6203
4`~
All notices to JHC shall be sent to: ~~~_~.
~~.r, ~.
JHC: Jupiter Hills Club, Inc., , ,f
c/o President
(561) 743-3396 ~ 11800 S.E. Hill Club Terrace
Fax: (561) 744-0070 Tequesta, Florida 33469 ,~
and to: Golf Course Superintendent
Jupiter Hills Club
11800 S. E. Hill Club Terrace
Tequesta, Florida 33469
(561) 743-3396
Fax: (561) 744-0070
11. Attorney's Fees and Costs. In the event of any litigation or administrative
proceedings to settle issues arising hereunder, the prevailing party shall be entitled to recover against
the other party, its costs and expenses, including reasonable attorney's fees, which shall include, but
not be limited to, any fees and costs for any appeal that may be taken.
MISCELLANEOUS PROVISIONS
12. Whenever the singulaz number is used in this Agreement and when required by the
context, the same shall include the plural, and the masculine, feminine and neuter genders shall each
include the others.
13. Exhibits mentioned in this Agreement aze hereby incorporated herein by reference and
made a part hereof as fizlly set forth herein. The headings contained in this Agreement are for
convenience of reference only, and shall not limit or otherwise affect in any way the meaning or
interpretation of the Agreement.
14. This Agreement may be executed in several counterparts, each of which shall be
deemed an original and such counterparts shall constitute one and the same instrument.
1 S. No agreement shall be effective to add to, change, modify, waive or discharge this
Agreement, in whole or in part, unless such agreement is in writing and signed by the parties hereto.
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In the event that any non-material provision of this Agreement is determined to be of no force and
effect by a court of law, such provision shall be severed from this Agreement and the remaining
Agreement shall continue in full force and effect.
16. 'Whenever approvals of any nature are required by either party to this Agreement, it
is agreed that same shall not be unreasonably withheld or delayed.
17. The parties acknowledge that each has shared equally in the drafting of this
Agreement and, accordingly, no court construing this Agreement shall construe it more strictly
against one party than the other and every covenant, term, and provision of this Agreement shall be
construed simply according to its fair meaning.
18. This Agreement represents the entire understanding between the parties, and
supercedes all other negotiations, representations, or agreements, either written or oral, relating to
matters which are the subject of this Agreement.
19. In the event that any section, pazagraph, sentence, clause, or provision hereof is held
invalid by a court of competent jurisdiction, such holding shall not affect the remaining portions of
this Agreement, and the same shall remain in full force and effect, unless the invalid finding is as to
payment, in which event the Agreement shall be thereupon terminated.
IN WITNESS WHEREOF, the parties hereto have made and executed this Agreement on the
respective dates under each signature:
JUPITE LS CLUB,
BY:
Date:----------------------------------
Ames Shuel, its President
THE VII.,LAGE OF TEQUESTA, FLORIDA
BY:
Date: ----------------------------------
Pat Watkins, its Mayor
AIJTI~NTICATE:
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