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Home My WebLink AboutHandout_Workshop_06/05/2007 (4)~ ~ T SECOND AMENDMENT TO BULK SALE WATER AGREEMENT • -t- This Agreement shall be effective as of the .?.~` day of I) ~ ~_~ ~~~ ~ l~r~, 2002, and is being entered into by and between the TOWN OF JUPITER, 210 Military Trail, Jupiter, Florida 33458, a Florida municipal corporation, hereinafter referred to as the "Town", and the VILLAGE OF TEQUESTA, 357 Tequesta Drive, Tequesta, Florida 33469, a Florida municipal corporation, hereinafter referred to as the "Village." WITNESSETH: WHEREAS, the Village of Tequesta entered into a Bulk Sale Water Service Agreement with the Tri-Southern Utilities Company, Inc. on July 15, 1976; and WHEREAS, the Town of Jupiter acquired the water utility from Tri-Southern Utilities Company, Inc.; and WHEREAS, on June 29, 1978, Tri-Southern Utilities Company, Inc. assigned its duties and responsibilities under the Bulk Sale Water Service Agreement with the Village of Tequesta to the Town of Jupiter; and WHEREAS, on August 10, 1993, the Town and the Village entered into an • agreement to amend the Butk Safe Water Service Agreement; and WHEREAS, it is the intent of the parties to further amend the Bulk Sale Water Service Agreement in the manner and form set forth herein subject, however, to the satisfactory completion of the terms of the Interlocal Agreement between the parties attached hereto. NOW, THEREFORE, the Town of Jupiter and the Village of Tequesta, for and in consideration of the mutual benefits and promises as set forth herein, do hereby enter into this Agreement and represent, covenant and agree with each other as follows: SECTION 1. RECITALS. The parties do hereby acknowledge and agree that the above Recitals are true and correct and are incorporated herein by reference. SECTION 2. PURPOSE. The purpose of this Interlocal Agreement is to identify the. parties' respective duties and obligations regarding the Bulk Sale Water Service. Agreement between the parties. SECTION 3. AMENDMENTS. Both parties agree to amend the Bulk Sale Water Service Agreement, dated July 15, 1976, as amended, in the following manner and form. • Y 1Q~Yld L~.G~' ~ ~C,v-a I~ ~ g nib r~m~~ 1. Paragraph 5, Rates, is hereby deleted in its entirety, and shall now read • as follows: "RATES. During the remainder of the Bulk Sale Water Service Agreement term, the rate payable by the Village shall be as set forth below: Period of Service December 1, 2002 -June 30, 2003 July 1, 2003 -June 30, 2004 July 1, 2004 -June 30, 2005 July 1, 2005 -June 30, 2006 July 1, 2006 -July 15, 2007 Rate Per 1000 Gallons $1.32 $1.35 $1.37 $1.40 $1.43 Furthermore, both parties agree that the aforementioned rates shall remain effective through July 15, 2007. The Town shall have no right to alter, amend or revise the rates above established during the terms stated. The above referenced rates are all inclusive and there shall be no other rates imposed to the Village for the transmission or sale of bulk water." 2. Paragraph 6, Guaranteed Revenues and Minimums shall be amended in the manner and form following: i „G UARANTEED REVENUE AND. MINIMUMS. The parties recognize and acknowledge that the commitment on the part of the Town's Utility, to provide bulk water service to the Village, and the general requirement ultimately upon Town's Utility to expand and/or replace treatment plant facilities allocated for the purpose of providing service to Village herein, together with the Town's Utility's requirement to support costs and indebtedness allocable to the service referred to in this Agreement, requires that the Town's Utility impose upon the purchasers of bulk sale service, an obligation or take/or pay for, minimum quantities of potable water service, whether or not such services are actually drawn or used by said bulk sale purchaser. Accordingly, in order to induce the Town's Utility to enter into this Agreement, Village agrees and guarantees to commence payment for the quantities of potable water service as hereinafter set forth. Commencing on December 1, 2002, the Village shall be obligated to receive and/or pay for a minimum of 492,750,000 gallons of water (1.350 million gallons per day times 365 days) during- the next year and each year thereafter during the life of this agreement. • In the event, however, that the Village receives in any one year an amount of water annually which results in an annual average of 1.57 MGD 2 • then, in the year following such year of usage and each year thereafter, the Village shall be obligated to receive and/or pay a minimum supply of water equal to 1.57 MGD or 573,050,000 gallons of water yearly. The minimum obligation of the Village shall remain 1.350 MGD average or 492,750,000 gallons of water annually unless and until such time as the Village's actual annual usage is 1.57 MGD or 573,050,000 gallons per year. The parties recognize the purpose of expressing minimum quantities on an annual basis is to permit Village to average its annual requirements during periods of lower daily demand (wet season) and high daily demand (dry season). The parties hereto will, by separate agreement, provide for the use by either system of emergency quantities of water in the event of equipment or mechanical failures in plants or systems making the supply of potable water inadequate, at minimum levels, to provide for the heath, safety and welfare of either system's consumers. Such emergencies, and the quantities of water furnished by the Town to the Village during the limited period of such emergency, shall not be counted in the Village's annual average consumption figures notwithstanding that the water furnished during the emergency was billed by the Town to the Village. Each month during the term of this Agreement, the Town's Utility • shall bill Village for a monthly quantity equal to one-twelfth of the annual minimum plus any additional water used over the minimum. Village shall be required to pay for such monthly quantity when billed. In the event that Village has actually received a quantity of water which is less than the aforesaid stated monthly minimum then, and in that event, Village shall be entitled to carry over any unused but paid for quantity of water into a subsequent month within the same service year where usage by the Village exceeds the said monthly minimum quantity. Conversely, the Village's excess usage above the minimum in any month of the same service year, resulting in a monthly payment in excess of the minimum, may be carried forward to offset minimum charges for water in a subsequent month during the same service year in which Village has used less than the minimum quantity of water. It is the purpose of this formula to adjust monthly usages within the same service year so as to allow Village to pay only for water actually received, provided that, on said annual basis, Village will have paid for not less than those costs equating to the total annual minimum quantities set forth herein. The requirement upon Village to pay such guaranteed revenues shall continue unlimited and unabated during the terms of this Agreement, except as hereinafter set forth." • 3 • SECTION 4. AMENDMENTS CONDITIONED UPON TERMS OF INTERLOCAL AGREEMENT ATTACHED HERETO. The above referenced amendments are conditioned upon the satisfactory completion by the parties of the terms of the Interlocal Agreement between the Town of Jupiter and the Village of Tequesta dated 2002, a copy of which is attached hereto. In the event the conditions of said agreement are not met, then and in that event, the amendments incorporated herein shall become null and void and the Bulk Sale Water Service Agreement between the parties prior to the amendments referenced herein shall remain in full force and effect. SECTION 5. NOTICES. 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 U.S. mail and sent via certified mail, return receipt requested. All notices to the Town shall be sent to: TOWN OF JUPITER, FLORIDA 210 North Military Trail Jupiter, Florida 33458 Attention: Town Manager . Telephone: (651) 741-2213 Facsimile: (561) 575-9730 All notices to the Village shall be sent to: VILLAGE OF TEQUESTA, FLORIDA 357 Tequesta Drive Tequesta, Florida 33469 Attention: Village Manager Telephone: (561) 575-6200 Facsimile: (561) 575-6203 SECTION 6. 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. SECTION 7. SEVERABILITY. In the event that any section, paragraph, 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 full force. and effect unless the invalid finding is as to payment or construction obligations of a party, in which event the agreement shall be thereupon germinated. 4 I. The Town will not construct water distribution or transmission piping • systems within or through the Village's service area or attempt to provide, or provide, water service to any customers within, or beyond, said area as identified on the attached Exhibit "D". The provisions of this paragraph, as well as the provisions of Section 5, shall survive the termination of this agreement and shall be enforceable through specific performance, declaratory or other equitable relief. J. This agreement is subject to the execution by the parties of the Second Amendment to Bulk Sale Water Service Agreement attached hereto. SECTION 4. NOTICES. 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 U.S. mail and sent via certified mail, return receipt requested. All notices to the Town shall be sent to: TOWN OF JUPITER, FLORIDA 210 North Military Trail Jupiter, Florida 33458 Attention: Town Manager Telephone: (651) 741-2213 Facsimile: (561) 575-9730 • All notices to the Village shall be sent to: VILLAGE OF TEQUESTA, FLORIDA 357 Tequesta Drive Tequesta, Florida 33469 Attention: Village Manager Telephone: (561) 575-6200 Facsimile: (561) 575-6203 SECTION 5. 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. SECTION 6. SEVERABILITY. In the event that any section, paragraph, 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 full force and effect unless the invalid. finding is as to payment or construction obligations of a party, in which event the agreement shall be thereupon terminated. • 5 SECTION 7. ENTIRE UNDERSTANDING. This Agreement represents the • entire understanding between the parties and supersedes all other negotiations, representations or agreements, either written or oral, relating to the matters which are the subject of this Agreement. SECTION 8. HEADINGS. 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 this Agreement. SECTION 9. COUNTERPARTS. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. SECTION 10. CONSTRUCTION. 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. SECTION 11. CLERK OF COURT. A copy of this Agreement shall be filed with the Clerk of the Court in and for Palm Beach County, Florida. SECTION 12. EFFECTIVE DATE. This Agreement shall be effective as of the • last date that it is signed by the parties hereto. i ~' EXECUTED by the Town this ~` day of __ ~~.r c~_~ y~~ ~?-~ ~~ , 2002. ATTEST: TOWN OF JUPITER :~ - ~_; By - - _. _~. Karen J. Golonka, Mayor Town Clerk Approved as to legal form andciency: `~~~. _ ~~ By ~.~ r~ _ ' ., f Thoma ~ . Attorney, Town of Jupiter • 6 s • EXECUTED by the Village this day of ATTEST: ~~ `dilla^e CI k y ~- t' Approved. as fo legal form~nd sufficiency: r- ,: ,, ~~:- ~ rt By , ~;~: -,~, .L. ;;,- ,. F<>' John C. Randolph %" Attorney, Village of Tequesta N:UCR\13153-01Uuipiter Tequesta Interlocal Agreement.DOC 11/14/2002 2002. VILLAGE OF TEQUESTA r~ BY:~.~.~ ? _ .1J Gei~ldine Oenco, 7