Backup Documents 12/13-14/2011 Item #11B11E �
ORIGINAL DOCUMENTS CHECKLIST & ROUTING SLIP
TO ACCOMPANY ALL ORIGINAL DOCUMENTS SENT TO
THE BOARD OF COUNTY COMMISSIONERS OFFICE FOR SIGNATURE
Print on pink paper. Attach to original document Original documents should be hand delivered to the Board Office. The completed routing slip and original
documents are to be forwarded to the Board Office only after the Board has taken action on the item.)
ROUTING SLIP
Complete routing lines #I through #4 as appropriate for additional signatures, dates, and/or information needed. If the document is already complete with the
exception of the Chairman's signature, draw a line through routing lines #1 through #4, complete the checklist, and forward to Sue Filson (line #5).
Route to Addressee(s)
List in routing order)
Office
Initials
Date
1.
appropriate.
(Initial)
Applicable)
2.
12/14/11
Agenda Item Number
11 -B
3.
signed by the Chairman, with the exception of most letters, must be reviewed and signed
4. Scott R. Teach, Deputy County Attorney
County Attorney
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12/14/11
5. Ian Mitchell, Executive Manager BCC
Board of County Commissioners
Documents Attached
1%14
�(
6. Minutes and Records
Clerk of Court's Office
PRIMARY CONTACT INFORMATION
(The primary contact is the holder of the original document pending BCC approval. Normally the primary contact is the person who created/prepared the executive
summary. Primary contact information is needed in the event one of the addressees above, including Ian Mitchell needs to contact staff for additional or missing
information. All original documents needing the BCC Chairman's signature are to be delivered to the BCC office only after the BCC has acted to approve the
item.)
Name of Primary Staff
Scott R. Teach, Deputy County Attorney
Phone Number
252 -8400
Contact
appropriate.
(Initial)
Applicable)
Agenda Date Item was
12/14/11
Agenda Item Number
11 -B
Approved by the BCC
signed by the Chairman, with the exception of most letters, must be reviewed and signed
Type of Document
Escrow Agreement with FPL
Number of Original
Attached I
I
Documents Attached
INSTRUCTIONS & CHECKLIST
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1: Forms/ County Forms/ BCC Forms / Original Documents Routing Slip WWS Original 9.03.04, Revised 1.26.05, Revised 2.24.05
08- MGR - 00132/33 S��
Initial the Yes column or mark "N /A" in the Not Applicable column,.whichever is
Yes
N/A (Not
appropriate.
(Initial)
Applicable)
1.
Original document has been signed/initialed for legal sufficiency. (All documents to be
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signed by the Chairman, with the exception of most letters, must be reviewed and signed
by the Office of the County Attorney. This includes signature pages from ordinances,
resolutions, etc. signed by the County Attorney's Office and signature pages from
contracts, agreements, etc. that have been fully executed by all parties except the BCC
Chairman and Clerk to the Board and possibly State Officials.)
2.
All handwritten strike - through and revisions have been initialed by the County Attorney's
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Office and all other parties except the BCC Chairman and the Clerk to the Board
3.
The Chairman's signature line date has been entered as the date of BCC approval of the
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document or the final negotiated contract date whichever is applicable.
4.
"Sign here" tabs are placed on the appropriate pages indicating where the Chairman's
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signature and initials are required.
5.
In most cases (some contracts are an exception), the original document and this routing slip
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should be provided to Ian Mitchell in the BCC office within 24 hours of BCC approval.
Some documents are time sensitive and require forwarding to Tallahassee within a certain
time frame or the BCC's actions are nullified. Be aware of your deadlines!
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The document was approved by the BCC on 12 /13/11 and all changes made during
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the meeting have been incorporated in the attached document. The County Attorney's
Office has reviewed the changes, if applicable.
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1: Forms/ County Forms/ BCC Forms / Original Documents Routing Slip WWS Original 9.03.04, Revised 1.26.05, Revised 2.24.05
08- MGR - 00132/33 S��
11 B !�
MEMORANDUM
Date: January 5, 2012
To: Scott Teach, Deputy County Attorney
County Attorney's Office
From: Martha Vergara, Deputy Clerk
Minutes & Records Department
Re: Escrow Agreement w /FPL
Attached for your records is a 4 (four) originals as referenced above, (Item #1113)
approved by the Board of County Commissioners January 5, 2011.
Please forward a fully executed original to the Minutes and Records Department,
where it will be kept as part of the Board's Official Records.
If you have any questions feel free to contact me at 252 -7240.
Thank you.
Attachments
' 118
Escrow Agreement
This Escrow Agreement ( "Agreement ") is made and entered into this 14th day of
December, 2011, by and among Collier County, a political subdivision of the State of
Florida ( "County "), by and through its Board of County Commissioners as the governing
body of the Vanderbilt Beach Beautification Municipal Service Taxing Unit (collectively,
"County "), the Collier County Clerk of the Circuit Court ( "Clerk "), Florida Power &
Light Company, a Florida corporation ( "FPL ") and Fifth Third Bank ( "Fifth Third "), an
Ohio banking corporation and a qualified public depository as defined under Section
280.02(26), Florida Statutes, as escrow agent ( "Escrow Agent ").
RECITALS:
WHEREAS, the County requested that FPL convert certain overhead electric
distribution facilities to underground electric distribution facilities ( "Conversion" or
"Project), and to that end, the County paid FPL an engineering deposit in the amount of
thirteen thousand twenty seven dollars ($1 3,027.00) on March 12, 2009, to develop a cost
estimate for the Conversion; and
WHEREAS, pursuant to Rule 25- 6.115, Florida Administrative Code
('`Conversion Rule ") and FPL's Florida Public Service Commission ( "FPSC ")- approved
Tariff Rule 12 ( "Conversion Tariff'), FPL provided the County a Binding Cost Estimate
( "BCE ") for the Conversion along with an Underground Facilities Conversion Agreement
— Governmental Adjustment Factor Waiver Agreement ( "UFCA ") on August 24, 2011;
and
WHEREAS, the UFCA outlines the total contribution -in- aid -of- construction
( "CIAC ") required for the Conversion in the amount of two million eight hundred
twenty-one thousand nine hundred and eighteen dollars ($2,821,918.00); and
WHEREAS, pursuant to the Conversion Rule and Conversion Tariff, County is
eligible for the Government Adjustment Factor Waiver ( "GAF Waiver ") in the amount of
six hundred six thousand three hundred seventy three dollars ($606,373.00) which
provides a corresponding reduction to the CIAC that would otherwise be due from
County for the Conversion; and
WHEREAS, the Conversion Rule and Conversion Tariff also provide for other
reductions to the CIAC, including a credit in the amount of five hundred fifty -two
thousand one hundred fifty dollars ($552,150.00), which represents the cost to install an
overhead electrical distribution system at current hardening standards; and
WHEREAS, after the net reductions to CIAC outlined above and as more
specifically set forth in the UFCA, the BCE that the County is to pay at the outset of the
Conversion is one million eight hundred six thousand ninety one dollars ($1,806,091.00)
( "County CIAC Amount "); and
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WHEREAS, on November 8, 2011, the Collier County Board of Commissioners
approved entering into the UFCA; and
WHEREAS, pursuant to Article VIII, Section I (d) of the Florida Constitution and
Section 28.12, Florida Statutes, the Clerk is the auditor and custodian of all County
funds; and
WHEREAS, by virtue of the UFCA, Conversion Tariff and Conversion Rule,
County, Clerk and FPL desire to enter into this Agreement for the purpose of establishing
an Escrow Account with the Escrow Agent, delivering the County CIAC Amount (the
"Escrowed Funds ") to the Escrow Agent in satisfaction of the requirement that County
pay the BCE at the outset of the Conversion and providing a procedure for the Clerk to
review and approve disbursement of Escrowed Funds.
NOW, THEREFORE, in consideration of the foregoing, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:
1. Establishment of an Escrow Account. FPL and the County hereby authorize and
direct the Escrow Agent to establish an Escrow Account ( "Account ") and the Escrow
Agent hereby accepts such appointment, on the terms and conditions set forth in this
Agreement. The Account shall be a non - interest bearing, Unlimited FDIC Account at
Fifth Third Bank and shall be entitled "Escrow Account Fifth Third Bank FBO Collier
County and Florida Power & Light Company Account No. 44- 003 - 9412099." The
County shall be responsible to pay all costs, fees and expenses of the Escrow Agent, if
any, arising from or in connection with the Account.
1.1 The Parties direct the Escrow Agent to place the Escrowed Funds in a Fifth Third
Bank account with the same protections as a qualified public depository in the State
of Florida. Exhibit "A" attached hereto states the fee schedule that will apply to the
Account.
2. Escrow Agent Reporting Requirements. Each month during the term of this
Agreement, the Escrow Agent shall issue to FPL, the Clerk and County a current
statement of Account activity for the period, including starting balance, deposits in the
Account, withdrawals from the Account, and ending balance. County, Clerk and FPL
agree and direct Escrow Agent that the Escrowed Funds are owned by the County for tax
reporting.
3. Deposit of County CIAC Amount. As a condition precedent to the
commencement of the Conversion, County shall fully execute the UFCA and Clerk shall
deposit one million eight hundred six thousand ninety -one dollars ($1,806,091.00) in the
Account, which represents the net County CIAC Amount due. County shall evidence
such deposit by delivering to FPL receipt of deposit within five (5) business days of the
full execution of this Agreement and the UFCA.
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4. Progress Milestones — Notice of Completion. FPL shall complete the Conversion
in accordance with the construction drawings and specifications set forth in Attachment
A of the UFCA, the progress milestone ( "Milestone ") set forth in the escrow
disbursement schedule attached hereto as Exhibit "B" and the illustrative timeline
attached hereto as Exhibit "C." The initial Milestone is the procurement of certain
special order material required for the Conversion. Upon completion of the initial
materials procurement Milestone, FPL shall provide County, Clerk and Escrow Agent
written notice of Milestone completion along with a purchase order which includes a
detailed list of materials and quantities as evidence of the procurement. Upon completion
of each of the remaining Milestones set forth in Exhibit `B," FPL shall provide County,
Clerk and Escrow Agent notice of Milestone completion along with a signed "redline"
drawing as evidence of Milestone completion. Clerk, at its sole discretion, may also
make arrangements with FPL for physical inspection of the Conversion, coordinating his
inspection with FPL, as further evidence of Milestone completion, in which FPL shall
cooperate. Clerk and County acknowledge and understand that, pursuant to the UFCA,
Conversion Rule and Conversion Tariff, the County CIAC Amount is a fixed -price
contribution toward the Conversion and is not subject to further reduction or payment
offset. The Account shall terminate upon the earlier of 24 months from the date of initial
deposit or the disbursement of the fourth and final draw in accordance with Exhibit "B,"
below and any funds then remaining in the Account shall be paid to the County upon
written request of the County.
5. Disbursement of Escrowed Funds. The Clerk shall have ten (10) business days
after receipt to review each notice of Milestone completion and determine if the notice of
Milestone completion is complete, proper and accurate, if the Milestone is complete
(which may include physical inspection), if payment to FPL is appropriate and to either:
(a) provide Escrow Agent and FPL with notice of approval to disburse Escrowed Funds;
or (b) provide Escrow Agent and FPL with notice of rejection of approval to disburse
Escrowed Funds. Upon receipt from Clerk of notice of approval to disburse Escrowed
Funds, the Escrow Agent shall disburse to FPL from the Escrowed Funds the amount set
forth in the applicable notice of Milestone completion (the "Milestone Payment "). In
the event that the Clerk provides Escrow Agent with notice of rejection of approval to
disburse Escrowed Funds or fails to provide a notice of approval or rejection within ten
(10) business days, FPL may, at its sole discretion, issue a stop -work order and
discontinue further progress on the Conversion until such time as full payment is received
according to the Milestone schedule set forth in Exhibit `B." The Escrow Agent has no
obligation or right to disburse funds from escrow unless and until receipt of a written
notice of approval from the Clerk.
6. Concerning the Escrow Agent. The acceptance by the Escrow Agent of its
responsibilities under this Agreement is subject to the following terms and conditions,
which the parties agree shall govern and control with respect to the Escrow Agent's
rights, duties, liabilities and immunities:
6.1 Limited Obligations. The Escrow Agent shall have only those duties as are
specifically and expressly set forth in this Agreement, which shall be deemed
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purely ministerial in nature, and shall under no circumstance be deemed a
fiduciary for any of the other parties to this Agreement. The Escrow Agent shall
not be required to take any action hereunder involving any expense unless the
payment of such expense is made or provided for in a manner reasonably
satisfactory to it.
6.2 Good Faith Reliance. The Escrow Agent shall not be liable for any action
taken or omitted by it in good faith and in the exercise of its own best judgment,
and may rely conclusively and shall be protected in acting upon any order, notice,
demand, certificate, opinion or advice of counsel in such matters (including
counsel chosen by the Escrow Agent), statement, instrument, report or other paper
or document (not only as to its due execution and the validity and effectiveness of
its provisions, but also as to the truth and acceptability of any information therein
contained) which is believed by the Escrow Agent to be genuine and to be signed
or presented by the proper person or persons. The Escrow Agent shall not be
bound by any notice or demand, or any waiver, modification, termination or
rescission of this Agreement unless evidenced by a writing delivered to the
Escrow Agent signed by the proper party or parties and, if the duties or rights of
the Escrow Agent are affected, unless Escrow Agent shall have given its prior
written consent thereto.
6.3 Limitations. The Escrow Agent shall not be liable for any error of judgment
or for any act done or step taken or omitted by it in good faith, or for anything
which it may do or refrain from doing in connection herewith, except for its own
gross negligence or willful misconduct. The Escrow Agent may consult with, and
obtain advice from, legal counsel in the event of any question as to any of the
provisions hereof or the duties, hereunder, and it shall incur no liability and shall
be fully protected in acting in good faith in accordance with the opinion and
instructions of such counsel. The reasonable and documented costs of such
counsel's services shall be paid to the Escrow Agent in accordance with Section
9.1 below. The Escrow Agent shall neither be responsible for, nor chargeable with
knowledge of, the terms and conditions of any other agreement, instrument or
document between or among the other parties hereto, or the requirements of any
law, regulation or policy affecting the business or operations of the other parties.
This Agreement sets forth all matters pertinent to the escrow contemplated
hereunder, and no additional obligations of the Escrow Agent shall be inferred
from the terms of this Agreement or any other agreement, instrument or
document.
6.4 Interpretation. If the Escrow Agent shall be uncertain as to its duties or rights
hereunder or-shall receive instructions, claims or demands from the Clerk, County--
or FPL which, in its opinion, conflict with any of the provisions of this
Agreement, it shall be entitled to refrain from taking any action and its sole
obligation shall be to keep safely all property held in escrow until it shall be
directed otherwise in writing jointly by the Clerk, County and FPL or by a final
and non - appealable order of a court of competent jurisdiction. The Escrow Agent
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shall have the option, after sixty (60) days' notice to the Clerk, County and FPL of
its intention to do so, to file an action in interpleader requiring the Clerk, County
and FPL to answer and litigate any claims and rights among themselves.
6.5 Further Assurances. From time to time, FPL, County and the Clerk shall
deliver or cause to be delivered to the Escrow Agent such further documents and
instruments and shall do or cause to be done such further law acts as the Escrow
Agent shall reasonably request to carry out more effectively the provisions and
purposes of this Agreement, to evidence compliance herewith or to assure itself
that it is protected in acting hereunder.
6.6 Resignation and Removal. The Escrow Agent may resign at any time and be
discharged from its duties hereunder by its giving the other parties hereto thirty
(30) days prior written notice, and such resignation shall become effective as
hereinafter provided. Such resignation shall become effective at such time that the
Escrow Agent shall turn over to a successor escrow agent jointly appointed by the
Clerk, County, FPL. If no new escrow agent is so appointed within the 30 day
period following the receipt of such notice of resignation, Escrow Agent may
deposit the Escrow Fund with any court, pursuant to an appropriate court
proceeding, it reasonably deems appropriate and advise the County, Clerk and
FPL accordingly. The Escrow Agent may be removed (with or without cause) and
a new escrow agent may be appointed upon mutual agreement of the Clerk,
County and FPL. In such event, the Clerk, County and FPL shall deliver joint
written notice to the Escrow Agent of such removal together with joint written
instructions authorizing delivery of this Agreement together with the Escrow
Funds (including any Escrow Income earned thereon) and any and all related
instruments or documents to a successor escrow agent.
6.7 Limited Duties. This Agreement expressly sets forth all the duties of Escrow
Agent with respect to any and all matters pertinent hereto. No implied duties or
obligations shall be read into this Agreement against Escrow Agent. Escrow
Agent shall not be bound by the provisions of any agreement among the other
parties hereto except this Agreement
7. The County and FPL shall jointly and severally indemnify and hold the Escrow
Agent and its officers, directors, shareholders, affiliates, employees and agents
( "Indemnified Parties ") harmless from and against any liability, loss, damage or expense
(including, without limitation, documented attorney's fees adjudged to be reasonable)
that the Escrow Agent may incur in connection with this Agreement and its performance
hereunder or in connection herewith, except to the extent such liability, loss, damage or
expense arises from the Escrow Agent's willful misconduct or gross negligence. This
provision shall survive the termination of this Agreement and the resignation or removal
of the Escrow Agent. This paragraph shall not be construed in any way to alter the
County's sovereign immunity or extend the County's liability beyond the limits
established in Section 768.28, Florida Statutes.
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8. UFCA Conversion Rule, Conversion Tariff. The parties understand and
acknowledge that this Agreement in no way alters or diminishes the UFCA, Conversion
Rule or Conversion Tariff and that both the County and FPL's rights under the UFCA,
Conversion Rule and Conversion Tariff remain unchanged by this Agreement. Escrow
Agent has no obligation whatsoever with respect to the UFCA, Conversion Rule or
Conversion Tariff.
9. Miscellaneous Provisions.
9.1 Fees and Expenses. All fees and expenses incurred in connection with or
related to this Agreement and the transactions contemplated hereby and thereby
will be paid by as previously set forth herein at numbered paragraph one (1).
9.2 Amendment and Modification. This Agreement may not be amended,
modified or supplemented in any manner, whether by course of conduct or
otherwise, except by an instrument in writing signed by each party which states
that it constitutes an amendment, modification or supplement (as applicable) of or
to this Agreement and, with respect to an amendment or modification, specifies
the provisions hereof being amended or modified (as applicable).
9.3 Waiver. No failure or delay of any party in exercising any right or remedy
hereunder will operate as a waiver thereof, nor will any single or partial exercise
of any such right or power, or any abandonment or discontinuance of steps to
enforce such right or power, or any course of conduct, preclude any other or
further exercise thereof or the exercise of any other right or power. Except as
provided herein, the rights and remedies of the parties hereunder are cumulative
and are not exclusive of any rights or remedies, which they would otherwise have
hereunder. Any purported waiver by any party of any provision of this
Agreement will be valid only if set forth in a written instrument signed by the
party providing such waiver which states that it constitutes a waiver to this
Agreement.
9.4 Notices. All notices, deliveries and other communications hereunder will be
in writing and will be deemed duly given: (a) on the date of delivery if delivered
personally, or if by facsimile, upon written confirmation of receipt by facsimile;
(b) on the first business day following the date of dispatch if delivered utilizing a
nationally recognized next -day courier service; (c) upon the delivery of an e -mail
read receipt confirmation; or (d) on the earlier of confirmed receipt or the fifth
business day following the date of mailing if delivered by registered or certified
mail, return receipt requested, postage prepaid. All notices hereunder will be
delivered to the addresses set forth below, or pursuant to such other instructions as
may be designated in writing by the party to receive such notice.
(i) if to the Clerk, sent to:
Constance C. Murray
General Operations Manager, Finance Department
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Collier County Clerk of the Circuit
3299 Tamiami Trail East, Suite 700
Naples, FL 34112 -5749
Email: Connie.Murray @collierclerk.com
Facsimile: (239) 732 -2726
Copies to:
Derek Johnssen
General Accounting Manager, Finance Department
Clerk of the Circuit Court
Collier County Government Center
3299 Tamiami Trail East, Suite 403
Naples, FL 34112
Email: Derek.Johnssen @collierclerk.com
Facsimile: (239) 732 -2726
(ii) if to the FPL, to:
Florida Power & Light Company
c/o John Lehr
700 Universe Blvd.
Juno Beach, FL 33408
Email: john.lehr @fpl.com
with copies (which will not constitute notice) to:
John T. Butler, Esq. / Attention: General Counsel
700 Universe Blvd. (LAW /JB)
Juno Beach, FL 33408
Facsimile: (561) 691 -7135
Email: john.butler @fpl.com
(iii) if to the Escrow Agent, to:
Fifth Third Bank
Kimberly Kutlenios
200 East Robinson Street
MD MBLE9B
— – Orlando, FL 32801
Phone: (407) 999 -3027
Facsimile: (321) 445 -3047
Email: kimberly.kutlenios. @53.com
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9.5 Entire Agreement. This Agreement constitutes the entire agreement, and
supersede all prior written agreements, arrangements, communications and
understandings and all prior and contemporaneous oral agreements, arrangements,
communications and understandings, among the parties with respect to the subject
matter of this Agreement.
9.6 Third Party Beneficiaries. This Agreement will be binding upon and inure
solely to the benefit of each of the parties and their respective successors and
permitted assigns, and nothing in this Agreement, express or implied, is intended
to or will confer upon any other person any legal or equitable right, benefit or
remedy of any nature under or by reason of this Agreement.
9.7 Governing Law. THE RIGHTS AND OBLIGATIONS OF THE ESCROW
AGENT UNDER THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
FLORIDA, WITHOUT REGARD TO ANY CHOICE OR CONFLICT OF LAW
PROVISION OR RULE (WHETHER OF THE STATE OF FLORIDA OR ANY
OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION
THERETO OF THE LAWS OF ANY OTHER JURISDICTION.
9.8 Submission to Jurisdiction. ANY PROCEEDING WITH RESPECT TO THE
RIGHTS AND OBLIGATIONS OF THE ESCROW AGENT AND THE
INDEMNIFIED PARTIES UNDER THIS AGREEMENT SHALL BE
BROUGHT AND DETERMINED IN THE FEDERAL AND STATE COURTS
LOCATED WITHIN THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR
COLLIER COUNTY, FLORIDA. EACH OF THE PARTIES HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS
DESCRIBED IN THE PRECEDING TWO SENTENCES OF THIS SECTION
FOR ITSELF AND WITH RESPECT TO ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY (AND AGREES NOT TO COMMENCE ANY
PROCEEDING RELATING THERETO EXCEPT IN SUCH COURTS). EACH
OF THE PARTIES FURTHER AGREES TO ACCEPT SERVICE OF PROCESS
IN ANY MANNER PERMITTED BY SUCH COURTS. EACH OF THE
PARTIES HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES,
AND AGREES NOT TO ASSERT, BY WAY OF MOTION OR AS A
DEFENSE, COUNTERCLAIM OR OTHERWISE, IN ANY PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY, (A) ANY CLAIM THAT IT
IS NOT PERSONALLY SUBJECT-TO -THE JURISDICTION OF THE ABOVE -
NAMED COURTS FOR ANY REASON OTHER THAN THE FAILURE
LAWFULLY TO SERVE PROCESS, (B) AND TO THE FULLEST EXTENT
PERMITTED BY LAW, THAT (I) THE PROCEEDING IN ANY SUCH
COURT IS BROUGHT IN AN INCONVENIENT FORUM, (II) THE VENUE
OF SUCH OR PROCEEDING IS IMPROPER OR (III) THIS AGREEMENT,
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OR THE SUBJECT MATTER HEREOF, MAY NOT BE ENFORCED IN OR
BY SUCH COURTS.
9.9 Personal Liability. This Agreement will not create or be deemed to create or
permit any personal liability or obligation on the part of any direct or indirect
stockholder, member or partner of any party or any representative or elected or
appointed official of, or investor in, any party.
9.10 Assignment; Successors. Except with respect to the Escrow Agent as
permitted under this Agreement. Neither this Agreement nor any of the rights,
interests or obligations under this Agreement may be assigned or delegated, in
whole or in part, by operation of law or otherwise, by any party without the prior
written consent of the other parties, and any such assignment without such prior
written consent will be null and void. Subject to the preceding sentence, this
Agreement will be binding upon, inure to the benefit of, and be enforceable by,
the parties and their respective successors and assigns.
9.11 Severability. The provisions of this Agreement will be deemed severable
and the invalidity or unenforceability of any provision will not affect the validity
or enforceability of the other provisions hereof, provided that if any provision of
this Agreement, as applied to any party or to any circumstance, is adjudged not to
be enforceable in accordance with its terms, the parties agree that such
determination will have the power to modify the provision in a manner consistent
with its objectives such that it is enforceable, and/or to delete specific words or
phrases, and in its reduced form, such provision will then be enforceable and will
be enforced.
9.12 Waiver of Jury Trial. THE PARTIES EACH HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY
MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY PROCEEDING
BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION
WITH, THIS AGREEMENT. THE PARTIES EACH ACKNOWLEDGE AND
AGREE THAT IT HAS RECEIVED FULL AND SUFFICIENT
CONSIDERATION FOR THIS PROVISION AND THAT THIS PROVISION IS
A MATERIAL INDUCEMENT FOR SUCH PARTY ENTERING INTO THIS
AGREEMENT.
9.13 Counterparts. This Agreement may be executed in two or more
counterparts, all of which will be considered one and the same instrument and will
become effective when one or more counterparts have been signed by each of the
parties and delivered to the other parties.
9.14 Execution. This Agreement may be executed by delivery of a signature by
facsimile or other electronic means reasonably acceptable to the parties and such
signature will constitute an original for all purposes.
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9.15 Time of Essence. Time is of the essence with regard to all dates and time
periods set forth or referred to in this Agreement. No party shall be liable or
responsible to the other parties, nor be deemed to have defaulted under or
breached this Agreement, for any failure or delay in fulfilling or performing any
term of this Agreement, when and to the extent such failure or delay is caused by
or results from acts beyond the affected party's reasonable control, including,
without limitation: (a) acts of God; (b) flood, fire or explosion; (c) war, invasion,
riot or other civil unrest; (d) government order or law; (e) actions, embargoes or
blockades in effect on or after the date of this Agreement; (f) action by any
governmental authority; (g) national or regional emergency; and (h) strikes, labor
stoppages or slowdowns or other industrial disturbances.
9.16 No Presumption Against Drafting Party. The parties each acknowledge
that each party to this Agreement has been represented by counsel in connection
with this Agreement and the transactions contemplated by this Agreement.
Accordingly, any rule of law or any legal decision that would require
interpretation of any claimed ambiguities in this Agreement against the drafting
party has no application and is expressly waived.
9.17 Further Assurances. Each party covenants that at any time, and from time
to time, it will execute such additional instruments and take such actions as may
be reasonably requested by any of the other parties to confirm or perfect or
otherwise to carry out the intent and purposes of this Agreement.
9.18 Termination. Except as otherwise expressly provided herein, this
Agreement shall continue in effect until ninety (90) days after the date on which
all of the contents of the Escrow Account have been released in accordance with
Section 5 above and, without any further action by the parties, shall terminate on
such date. Such termination shall not affect the liability of any party with respect
to any breach by such party of this Agreement occurring prior to the date of
termination
[remainder ofpage intentionally left blank; signature page(s) follow]
in
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
date first set forth above.
FPL:
Florida Power & Light Company
By: _
Name
Title:
George K. Hardy
Vice President, Distribution
Witness:
Print Name:
Witness:
Print Name:
ATTE§t
Approved as to form and
legal sufficient
Scott R. Teach
Deputy County Attorney
BOARD OF COUNTY COMMISSIONERS
COLLIER COUNTY, FLORIDA
BY: ,IL� (A)'
Fred W. Coyle, Chairman
Dw'ght rock, erk of Court
By:
Name:
Witness:
Print Name:
Witness:
Print Name:
ESCROW AGENT:
Fifth Third Bank
Corp
By:
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Title
Witness:
Print Name: .0 e,
Witness:
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EXHIBIT A:
ESCROW ACCOUNT FEE SCHEDULE
Escrow Management Fee: $5,000.00
Legal Fees: $3,000.00
11
11B 1
119 II
EXHIBIT B:
ESCROW DISBURSEMENT SCHEDULE
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EXHIBIT C:
OH/UG CONVERSION - CONSTRUCTION PHASE I
ILLUSTRATIVE TIMELINE
EXHIBIT "C"
APL
OH / UG Conversion - Construction Phase
Collier County - Vanderbilt Beach - Phase #1
Illustrative Timeline - *
Estimated Total
Time (wk.) Time
Bid Process (if required)
Underground Work - 8 to 10 10
Underground ( FPL )
Install new underground system 16 to 28 20
Overhead (FPL) - (Make Ready if required)
Make Ready Work 4 4
Individual Service Conversions - ( FPL /County )
Up to 180 -days 26 18
Foreign Utilities - County (if required)
OH Removal / New Underground 2 to 4 4
Overhead (FPL) - Removal
Overhead Facilities removal once 6 to 10 9
all foreign attachments are
removed from the poles
65 wk.
This illustrative timeline is provided solely for the purpose of a general estimate for the completion of the
Conversion projed and in no way supersedes or afters the UFCA, or FPL's general construction practices.
The parties understand and acknowledge that the illustrative timeline is subject to weather
conditions (e.g. storm events, hurricanes, cold snaps, etc.) labor or material shortages, or other ads
of God that may affect the timing of the project and hold FPL harmless for any delays to the project
that may occur outside this illustrative timeline.
118 14
STATE OF FLORIDA )
) SS:
COUNTY OF PALM BEACH)
AFFIDAVIT OF JOHN LEHR
BEFORE ME this day personally appeared John Lehr, who after being duly sworn,
deposes and says:
1. I am over the age of eighteen years and have personal knowledge of the matters stated
herein.
2. I am currently employed by Florida Power & Light Company ( "FPL ") and have been
so employed since 1985. My current position with FPL is Lead Project Manager, Distribution
3. In my employment for FPL I am familiar with Collier County's Vanderbilt Beach
Beautification Municipal Service Taxing Unit's ( "MSTU ") underground utility conversion
project (the "Project") and the proposed construction of that Project by FPL as identified in
the Underground Facility Conversion Agreement ( "UFCA ") that was approved by the Collier
County Board of Commissioners, as the governing body of the MSTU, at its November 8,
2011, regular Board meeting.
4. The construction and improvement to the electric utility per the UFCA will be
performed by designated personnel of the system.
FURTHER AFFIANT SAYETH NAUGHT.
STATE OF FLORIDA
COUNTY OF PALM BEACH
)WE
SWORN TO (OR AFFIRMED) AND SUBSCRIBED before me this �� day of
December, 2011, by John Lehr, who is personally known to me.
SIGNATURE OF NOTARY PUBLIC
V-(A �-)_IC', �-- ) Pr % � c
OR STAMP
COMMISSIONED NAME'OF No I`oY
PUBLIC
MY COMMISSION EXPIRES:
Pamela L. Springer
"c comMISSION # EE085473
� k*A; .X. !RES: APR. 18, 2015
°�,,811f;; W' WWY /. AARON NOTARY.=
I I B
WHEREAS, on November 8, 2011, the Collier County Board of Commissioners
approved entering into the UFCA; and
WHEREAS, pursuant to Article VIII, Section 1(d) of the Florida Constit -ion and
Section 28.12, Florida Statutes, the Clerk is the auditor and custodian of all County
funds; and
WHEREAS, by virtue of the UFCA, Conversion Tariff and Conversion Rule,
County, Clerk and FPL desire to enter into this Agreement for the purpose of establishing
an Escrow Account with the Escrow Agent, delivering the County CIAC Amount (the
"Escrowed Funds ") to the Escrow Agent in satisfaction of the requirement that County
pay the BCE at the outset of the Conversion and providing a procedure for the Clerk to
review and approve disbursement of Escrowed Funds.
NOW, THEREFORE, in consideration of the foregoing, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:
1. Establishment of an Escrow Account. FPL and the County hereby authorize and
direct the Escrow Agent to establish an Escrow Account ( "Account ") and the Escrow
Agent hereby accepts such appointment, on the terms and conditions set forth in this
Agreement. The Account shall be a non--interest bearing, FDIC insured account at Fifth
Third Bank and shall be entitled "Escrow Account Fifth Third Bank FBO Collier County
and Florida Power & Light Company Account No. " The County Test
shall fif4 be responsible apples to pay all costs, fees and expenses of the Escrow Agent,
if any, arising from or in connection with the Account. If any foes of osts arising ffem
ITrCVlt'Jl, shall be fespons:7Ie fe~ 1 fees. v
Funds, , are released to FPL. all interest eamed by stteh
l
,
7 shall aeeftie to FPL and Gotinty equally.
44 -The Parties direct the Escrow Agent to place the Escrowed Funds in a Fifth Third
Bank money mar-I account with the same protections as a qualified public
depository in the State of Florida. Exhibit "A" attached hereto states the rest
fate -and -fee schedule that will apply to the Account. The Esefe = Agent shall „ ^t
have any liability fiar- any loss sustaified as a result of an), investment made
pufsttant to the teffns of this Agfeement of as a fesult of any liquidation of an
r-einvest the Eser-ow Funds. Any less of expense ineuffed as a result of
investment made pufsttant to the teffns of this Agfeement will be bef-fie by the
Es A , „t
2. Escrow Agent Reporting Requirements. Each month during the term of this
Agreement, the Escrow Agent shall issue to FPL, the Clerk and County a current
2
I I B
statement of Account activity for the period, including starting balance, deposits in the
Account, withdrawals from the Account, _ntei:est eafned on the Aeeettnt, and ending
balance. County, Clerk and FPL agree and direct Escrow Agent that the Escrowed Funds
are owned by the County for tax reporting pulp ses exeept f r any ntefes* aettially paid
to FP I–.
3. Deposit of County CIAC Amount. As a condition precedent to the
commencement of the Conversion, County shall fully execute the UFCA and Clerk shall
deposit one million eight hundred six thousand ninety -one dollars ($1,806,091.00) in the
Account, which represents the net County CIAC Amount due. County shall evidence
such deposit by delivering to FPL receipt of deposit within five (5) business days of the
full execution of this Agreement and the UFCA.
4. Progress Milestones — Notice of Completion. FPL shall complete the Conversion
in accordance with the construction drawings and specifications set forth in Attachment
A of the UFCA, the progress milestone ( "Milestone ") set forth in the escrow
disbursement schedule attached hereto as Exhibit `B" and the illustrative timeline
attached hereto as Exhibit "C." The initial Milestone is the procurement of certain
special order material required for the Conversion. Upon completion of the initial
materials procurement Milestone, FPL shall provide County, Clerk and Escrow Agent
written notice of Milestone completion along with a purchase order which includes a
detailed list of materials and quantities as evidence of the procurement. Upon completion
of each of the remaining Milestones set forth in Exhibit `B," FPL shall provide County,
Clerk and Escrow Agent notice of Milestone completion along with a signed "redline"
drawing as evidence of Milestone completion. Clerk, at its sole discretion, may also
make arrangements with FPL for physical inspection of the Conversion, coordinating his
inspection with FPL, as further evidence of Milestone completion, in which FPL shall
cooperate. Clerk and County acknowledge and understand that, pursuant to the UFCA,
Conversion Rule and Conversion Tariff, the County CIAC Amount is a fixed -price
contribution toward the Conversion and is not subject to further reduction or payment
offset. The Account shall terminate upon the earlier of 24 months from the date of initial
deposit or the disbursement of the fourth and final draw in accordance with Exhibit `B,"
below and any funds then remaining in the Account shall be paid to the County upon
written request of the County.
5. Disbursement of Escrowed Funds. The Clerk shall have ten (10) business days
after receipt to review each notice of Milestone completion and determine if the notice of
Milestone completion is complete, proper and accurate, if the Milestone is complete
(which may include physical inspection), if payment to FPL is appropriate and to either:
(a) provide Escrow Agent and FPL with notice of approval to disburse Escrowed Funds;
or (b) provide Escrow Agent and FPL with notice of rejection of approval to disburse
Escrowed Funds. Upon receipt from Clerk of notice of approval to disburse Escrowed
Funds, the Escrow Agent shall disburse to FPL from the Escrowed Funds the amount set
forth in the applicable notice of Milestone completion (the "Milestone Payment "). €aeh
the Aeeeunt up to the point of sueh disbursement eensistent with par-agfaph number- ene,
3
I i B I
awe. In the event that the Clerk provides Escrow Agent with notice of rejection of
approval to disburse Escrowed Funds or fails to provide a notice of approval or rejection
within ten (10) business days, FPL may, at its sole discretion, issue a stop -work order and
discontinue further progress on the Conversion until such time as full payment is received
according to the Milestone schedule set forth in Exhibit `B." The Escrow Agent has no
obligation or right to disburse funds from escrow unless and until receipt of a written
notice of approval from the Clerk.
6. Concerning the Escrow Agent. The acceptance by the Escrow Agent of its
responsibilities under this Agreement is subject to the following terms and conditions,
which the parties agree shall govern and control with respect to the Escrow Agent's
rights, duties, liabilities and immunities:
6.1 Limited Obligations. The Escrow Agent shall have only those duties as are
specifically and expressly set forth in this Agreement, which shall be deemed
purely ministerial in nature, and shall under no circumstance be deemed a
fiduciary for any of the other parties to this Agreement. The Escrow Agent shall
not be required to take any action hereunder involving any expense unless the
payment of such expense is made or provided for in a manner reasonably
satisfactory to it.
6.2 Good Faith Reliance. The Escrow Agent shall not be liable for any action
taken or omitted by it in good faith and in the exercise of its own best judgment,
and may rely conclusively and shall be protected in acting upon any order, notice,
demand, certificate, opinion or advice of counsel in such matters (including
counsel chosen by the Escrow Agent), statement, instrument, report or other paper
or document (not only as to its due execution and the validity and effectiveness of
its provisions, but also as to the truth and acceptability of any information therein
contained) which is believed by the Escrow Agent to be genuine and to be signed
or presented by the proper person or persons. The Escrow Agent shall not be
bound by any notice or demand, or any waiver, modification, termination or
rescission of this Agreement unless evidenced by a writing delivered to the
Escrow Agent signed by the proper party or parties and, if the duties or rights of
the Escrow Agent are affected, unless Escrow Agent shall have given its prior
written consent thereto.
6.3 Limitations. The Escrow Agent shall not be liable for any error of judgment
or for any act done or step taken or omitted by it in good faith, or for anything
which it may do or refrain from doing in connection herewith, except for its own
gross negligence or willful misconduct, emission ^r failure to . The Escrow
Agent may consult with, and obtain advice from, legal counsel in the event of any
question as to any of the provisions hereof or the duties hereunder, and it shall
incur no liability and shall be fully protected in acting in good faith in accordance
with the opinion and instructions of such counsel. The reasonable and
documented costs of such counsel's services shall be paid to the Escrow Agent in
accordance with Section 9.1 below. The Escrow Agent shall neither be
4
EXHIBIT A:
ESCROW ACCOUNT FEE SCHEDULE
Escrow Management Fee: $5,000.00
Legal Fees: $3,000.00
13
116 4
Escrow Agreement
This Escrow Agreement ( "Agreement ") is made and entered into this 14th day of
December, 2011, by and among Collier County, a political subdivision of the State of
Florida ( "County "), by and through its Board of County Commissioners as the governing
body of the Vanderbilt Beach Beautification Municipal Service Taxing Unit (collectively,
"County "), the Collier County Clerk of the Circuit Court ( "Clerk "), Florida Power &
Light Company, a Florida corporation ( "FPL ") and Fifth Third Bank ( "Fifth Third "), an
Ohio banking corporation and a qualified public depository as defined under Section
280.02(26), Florida Statutes, as escrow agent ( "Escrow Agent ").
RECITALS:
WHEREAS, the County requested that FPL convert certain overhead electric
distribution facilities to underground electric distribution facilities ( "Conversion" or
"Project), and to that end, the County paid FPL an engineering deposit in the amount of
thirteen thousand twenty seven dollars ($13,027.00) on March 12, 2009, to develop a cost
estimate for the Conversion; and
WHEREAS, pursuant to Rule 25- 6.115, Florida Administrative Code
( "Conversion Rule ") and FPL's Florida Public Service Commission ( "FPSC ")- approved
Tariff Rule 12 ( "Conversion Tariff"), FPL provided the County a Binding Cost Estimate
( "BCE ") for the Conversion along with an Underground Facilities Conversion Agreement
— Governmental Adjustment Factor Waiver Agreement ( "UFCA ") on August 24, 2011;
and
WHEREAS, the UFCA outlines the total contribution -in- aid -of- construction
( "CIAC ") required for the Conversion in the amount of two million eight hundred
twenty -one thousand nine hundred and eighteen dollars ($2,821,918.00); and
WHEREAS, pursuant to the Conversion Rule and Conversion Tariff, County is
eligible for the Government Adjustment Factor Waiver ( "GAF Waiver ") in the amount of
six hundred six thousand three hundred seventy three dollars ($606,373.00) which
provides a corresponding reduction to the CIAC that would otherwise be due from
County for the Conversion; and
WHEREAS, the Conversion Rule and Conversion Tariff also provide for other
reductions to the CIAC, including a credit in the amount of five hundred fifty -two
thousand one hundred fifty dollars ($552,150.00), which represents the cost to install an
overhead electrical distribution system at current hardening standards; and
WHEREAS, after the net reductions to CIAC outlined above and as more
specifically set forth in the UFCA, the BCE that the County is to pay at the outset of the
Conversion is one million eight hundred six thousand ninety one dollars ($1,806,091.00)
( "County CIAC Amount "); and
I I B 4
WHEREAS, on November 8, 2011, the Collier County Board of Commissioners
approved entering into the UFCA; and
WHEREAS, pursuant to Article VIII, Section 1(d) of the Florida Constitution and
Section 28.12, Florida Statutes, the Clerk is the auditor and custodian of all County
funds; and
WHEREAS, by virtue of the UFCA, Conversion Tariff and Conversion Rule,
County, Clerk and FPL desire to enter into this Agreement for the purpose of establishing
an Escrow Account with the Escrow Agent, delivering the County CIAC Amount (the
"Escrowed Funds ") to the Escrow Agent in satisfaction of the requirement that County
pay the BCE at the outset of the Conversion and providing a procedure for the Clerk to
review and approve disbursement of Escrowed Funds.
NOW, THEREFORE, in consideration of the foregoing, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:
1. Establishment of an Escrow Account. FPL and the County hereby authorize and
direct the Escrow Agent to establish an Escrow Account ( "Account ") and the Escrow
Agent hereby accepts such appointment, on the terms and conditions set forth in this
Agreement. The Account shall be a non - interest bearing, Unlimited FDIC Account at
Fifth Third Bank and shall be entitled "Escrow Account Fifth Third Bank FBO Collier
County and Florida Power & Light Company Account No. The County
shall be responsible to pay all costs, fees and expenses of the Escrow Agent, if any,
arising from or in connection with the Account.
1.1 The Parties direct the Escrow Agent to place the Escrowed Funds in a Fifth Third
Bank account with the same protections as a qualified public depository in the State
of Florida. Exhibit "A" attached hereto states the fee schedule that will apply to the
Account.
2. Escrow Agent Reporting Requirements. Each month during the term of this
Agreement, the Escrow Agent shall issue to FPL, the Clerk and County a current
statement of Account activity for the period, including starting balance, deposits in the
Account, withdrawals from the Account, and ending balance. County, Clerk and FPL
agree and direct Escrow Agent that the Escrowed Funds are owned by the County for tax
reporting.
3. Deposit of County CIAC Amount. As a condition precedent to the
commencement of the Conversion, County shall fally execute the UFCA and Clerk shall
deposit one million eight hundred six thousand ninety -one dollars ($1,806,091.00) in the
Account, which represents the net County CIAC Amount due. County shall evidence
such deposit by delivering to FPL receipt of deposit within five (5) business days of the
full execution of this Agreement and the UFCA.
2
11 B "1
4. Progress Milestones — Notice of Completion. FPL shall complete the Conversion
in accordance with the construction drawings and specifications set forth in Attachment
A of the UFCA, the progress milestone ( "Milestone ") set forth in the escrow
disbursement schedule attached hereto as Exhibit "B" and the illustrative timeline
attached hereto as Exhibit "C." The initial Milestone is the procurement of certain
special order material required for the Conversion. Upon completion of the initial
materials procurement Milestone, FPL shall provide County, Clerk and Escrow Agent
written notice of Milestone completion along with a purchase order which includes a
detailed list of materials and quantities as evidence of the procurement. Upon completion
of each of the remaining Milestones set forth in Exhibit "B," FPL shall provide County,
Clerk and Escrow Agent notice of Milestone completion along with a signed "redline"
drawing as evidence of Milestone completion. Clerk, at its sole discretion, may also
make arrangements with FPL for physical inspection of the Conversion, coordinating his
inspection with FPL, as further evidence of Milestone completion, in which FPL shall
cooperate. Clerk and County acknowledge and understand that, pursuant to the UFCA,
Conversion Rule and Conversion Tariff, the County CIAC Amount is a fixed -price
contribution toward the Conversion and is not subject to further reduction or payment
offset. The Account shall terminate upon the earlier of 24 months from the date of initial
deposit or the disbursement of the fourth and final draw in accordance with Exhibit "B,"
below and any funds then remaining in the Account shall be paid to the County upon
written request of the County.
5. Disbursement of Escrowed Funds. The Clerk shall have ten (10) business days
after receipt to review each notice of Milestone completion and determine if the notice of
Milestone completion is complete, proper and accurate, if the Milestone is complete
(which may include physical inspection), if payment to FPL is appropriate and to either:
(a) provide Escrow Agent and FPL with notice of approval to disburse Escrowed Funds;
or (b) provide Escrow Agent and FPL with notice of rejection of approval to disburse
Escrowed Funds. Upon receipt from Clerk of notice of approval to disburse Escrowed
Funds, the Escrow Agent shall disburse to FPL from the Escrowed Funds the amount set
forth in the applicable notice of Milestone completion (the "Milestone Payment "). In
the event that the Clerk provides Escrow Agent with notice of rejection of approval to
disburse Escrowed Funds or fails to provide a notice of approval or rejection within ten
(10) business days, FPL may, at its sole discretion, issue a stop -work order and
discontinue further progress on the Conversion until such time as full payment is received
according to the Milestone schedule set forth in Exhibit `B." The Escrow Agent has no
obligation or right to disburse funds from escrow unless and until receipt of a written
notice of approval from the Clerk.
6. Concerning the Escrow Agent. The acceptance by the Escrow Agent of its
responsibilities under this Agreement is subject to the following terms and conditions, --
which the parties agree shall govern and control with respect to the Escrow Agent's
rights, duties, liabilities and immunities:
6.1 Limited Obligations. The Escrow Agent shall have only those duties as are
specifically and expressly set forth in this Agreement, which shall be deemed
3
11B
purely ministerial in nature, and shall under no circumstance be deemed a
fiduciary for any of the other parties to this Agreement. The Escrow Agent shall
not be required to take any action hereunder involving any expense unless the
payment of such expense is made or provided for in a manner reasonably
satisfactory to it.
6.2 Good Faith Reliance. The Escrow Agent shall not be liable for any action
taken or omitted by it in good faith and in the exercise of its own best judgment,
and may rely conclusively and shall be protected in acting upon any order, notice,
demand, certificate, opinion or advice of counsel in such matters (including
counsel chosen by the Escrow Agent), statement, instrument, report or other paper
or document (not only as to its due execution and the validity and effectiveness of
its provisions, but also as to the truth and acceptability of any information therein
contained) which is believed by the Escrow Agent to be genuine and to be signed
or presented by the proper person or persons. The Escrow Agent shall not be
bound by any notice or demand, or any waiver, modification, termination or
rescission of this Agreement unless evidenced by a writing delivered to the
Escrow Agent signed by the proper party or parties and, if the duties or rights of
the Escrow Agent are affected, unless Escrow Agent shall have given its prior
written consent thereto.
6.3 Limitations. The Escrow Agent shall not be liable for any error of judgment
or for any act done or step taken or omitted by it in good faith, or for anything
which it may do or refrain from doing in connection herewith, except for its own
gross negligence or willful misconduct. The Escrow Agent may consult with, and
obtain advice from, legal counsel in the event of any question as to any of the
provisions hereof or the duties hereunder, and it shall incur no liability and shall
be fully protected in acting in good faith in accordance with the opinion and
instructions of such counsel. The reasonable and documented costs of such
counsel's services shall be paid to the Escrow Agent in accordance with Section
9.1 below. The Escrow Agent shall neither be responsible for, nor chargeable with
knowledge of, the terms and conditions of any other agreement, instrument or
document between or among the other parties hereto, or the requirements of any
law, regulation or policy affecting the business or operations of the other parties.
This Agreement sets forth all matters pertinent to the escrow contemplated
hereunder, and no additional obligations of the Escrow Agent shall be inferred
from the terms of this Agreement or any other agreement, instrument or
document.
6.4 Interpretation. If the Escrow Agent shall be uncertain as to its duties or rights
hereunder or shall receive instructions, claims or demands from the Clerk, County
or FPL which, in its opinion, conflict with any of the provisions of this
Agreement, it shall be entitled to refrain from taking any action and its sole
obligation shall be to keep safely all property held in escrow until it shall be
directed otherwise in writing jointly by the Clerk, County and FPL or by a final
and non - appealable order of a court of competent jurisdiction. The Escrow Agent
4
!38 "
shall have the option, after sixty (60) days' notice to the Clerk, County and FPL of
its intention to do so, to file an action in interpleader requiring the Clerk, County
and FPL to answer and litigate any claims and rights among themselves.
6.5 Further Assurances. From time to time, FPL, County and the Clerk shall
deliver or cause to be delivered to the Escrow Agent such further documents and
instruments and shall do or cause to be done such further law acts as the Escrow
Agent shall reasonably request to carry out more effectively the provisions and
purposes of this Agreement, to evidence compliance herewith or to assure itself
that it is protected in acting hereunder.
6.6 Resignation and Removal. The Escrow Agent may resign at any time and be
discharged from its duties hereunder by its giving the other parties hereto thirty
(30) days prior written notice, and such resignation shall become effective as
hereinafter provided. Such resignation shall become effective at such time that the
Escrow Agent shall turn over to a successor escrow agent jointly appointed by the
Clerk, County, FPL. If no new escrow agent is so appointed within the 30 day
period following the receipt of such notice of resignation, Escrow Agent may
deposit the Escrow Fund with any court, pursuant to an appropriate court
proceeding, it reasonably deems appropriate and advise the County, Clerk and
FPL accordingly. The Escrow Agent may be removed (with or without cause) and
a new escrow agent may be appointed upon mutual agreement of the Clerk,
County and FPL. In such event, the Clerk, County and FPL shall deliver joint
written notice to the Escrow Agent of such removal together with joint written
instructions authorizing delivery of this Agreement together with the Escrow
Funds (including any Escrow Income earned thereon) and any and all related
instruments or documents to a successor escrow agent.
6.7 Limited Duties. This Agreement expressly sets forth all the duties of Escrow
Agent with respect to any and all matters pertinent hereto. No implied duties or
obligations shall be read into this Agreement against Escrow Agent. Escrow
Agent shall not be bound by the provisions of any agreement among the other
parties hereto except this Agreement
7. The County and FPL shall jointly and severally indemnify and hold the Escrow
Agent and its officers, directors, shareholders, affiliates, employees and agents
( "Indemnified Parties ") harmless from and against any liability, loss, damage or expense
(including, without limitation, documented attorney's fees adjudged to be reasonable)
that the Escrow Agent may incur in connection with this Agreement and its performance
hereunder or in connection herewith, except to the extent such liability, loss, damage or
expense arises from the Escrow Agent's willful misconduct or gross negligence. This
provision shall survive the termination of this Agreement and the resignation or removal
of the Escrow Agent. This paragraph shall not be construed in any way to alter the
County's sovereign immunity or extend the County's liability beyond the limits
established in Section 768.28, Florida Statutes.
5
11.8 t I
8. UFCA, Conversion Rule, Conversion Tariff. The parties understand and
acknowledge that this Agreement in no way alters or diminishes the UFCA, Conversion
Rule or Conversion Tariff and that both the County and FPL's rights under the UFCA,
Conversion Rule and Conversion Tariff remain unchanged by this Agreement. Escrow
Agent has no obligation whatsoever with respect to the UFCA, Conversion Rule or
Conversion Tariff.
9. Miscellaneous Provisions.
9.1 Fees and Expenses. All fees and expenses incurred in connection with or
related to this Agreement and the transactions contemplated hereby and thereby
will be paid by as previously set forth herein at numbered paragraph one (1).
9.2 Amendment and Modification. This Agreement may not be amended,
modified or supplemented in any manner, whether by course of conduct or
otherwise, except by an instrument in writing signed by each party which states
that it constitutes an amendment, modification or supplement (as applicable) of or
to this Agreement and, with respect to an amendment or modification, specifies
the provisions hereof being amended or modified (as applicable).
9.3 Waiver. No failure or delay of any party in exercising any right or remedy
hereunder will operate as a waiver thereof, nor will any single or partial exercise
of any such right or power, or any abandonment or discontinuance of steps to
enforce such right or power, or any course of conduct, preclude any other or
further exercise thereof or the exercise of any other right or power. Except as
provided herein, the rights and remedies of the parties hereunder are cumulative
and are not exclusive of any rights or remedies, which they would otherwise have
hereunder. Any purported waiver by any party of any provision of this
Agreement will be valid only if set forth in a written instrument signed by the
party providing such waiver which states that it constitutes a waiver to this
Agreement.
9.4 Notices. All notices, deliveries and other communications hereunder will be
in writing and will be deemed duly given: (a) on the date of delivery if delivered
personally, or if by facsimile, upon written confirmation of receipt by facsimile;
(b) on the first business day following the date of dispatch if delivered utilizing a
nationally recognized next -day courier service; (c) upon the delivery of an e -mail
read receipt confirmation; or (d) on the earlier of confirmed receipt or the fifth
business day following the date of mailing if delivered by registered or certified
mail, return receipt requested, postage prepaid. All notices hereunder will be
delivered to the addresses set forth below, or pursuant to such other instruQtiQns as
may be designated in writing by the party to receive such notice.
(i) if to the Clerk, sent to:
Constance C. Murray
General Operations Manager, Finance Department
2
11B 4
Collier County Clerk of the Circuit
3299 Tamiami Trail East, Suite 700
Naples, FL 341 12 -5749
Email: Connie.Murray @collierclerk.com
Facsimile: (239) 732 -2726
Copies to:
Derek Johnssen
General Accounting Manager, Finance Department
Clerk of the Circuit Court
Collier County Government Center
3299 Tamiami Trail East, Suite 403
Naples, FL 34112
Email: Derek.Johnssen @collierclerk.com
Facsimile: (239) 732 -2726
(ii) if to the FPL, to:
Florida Power & Light Company
c/o John Lehr
700 Universe Blvd.
Juno Beach, FL 33408
Email: john.lehr @fpl.com
with copies (which will not constitute notice) to:
John T. Butler, Esq. / Attention: General Counsel
700 Universe Blvd. (LAW /JB)
Juno Beach, FL 33408
Facsimile: (561) 691 -7135
Email: john.butler @fpl.com
(iii) if to the Escrow Agent, to:
Fifth Third Bank
Kimberly Kutlenios
200 East Robinson Street
MD MBLE9B
Orlando, FL 32801
Phone: (407) 999 -3027
Facsimile: (321) 445 -3047
Email: kimberly.kutlenios. @53.com
S1B �
9.5 Entire Agreement. This Agreement constitutes the entire agreement, and
supersede all prior written agreements, arrangements, communications and
understandings and all prior and contemporaneous oral agreements, arrangements,
communications and understandings, among the parties with respect to the subject
matter of this Agreement.
9.6 Third Party Beneficiaries. This Agreement will be binding upon and inure
solely to the benefit of each of the parties and their respective successors and
permitted assigns, and nothing in this Agreement, express or implied, is intended
to or will confer upon any other person any legal or equitable right, benefit or
remedy of any nature under or by reason of this Agreement.
9.7 Governing. THE RIGHTS AND OBLIGATIONS OF THE ESCROW
AGENT UNDER THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
FLORIDA, WITHOUT REGARD TO ANY CHOICE OR CONFLICT OF LAW
PROVISION OR RULE (WHETHER OF THE STATE OF FLORIDA OR ANY
OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION
THERETO OF THE LAWS OF ANY OTHER JURISDICTION.
9.8 Submission to Jurisdiction. ANY PROCEEDING WITH RESPECT TO THE
RIGHTS AND OBLIGATIONS OF THE ESCROW AGENT AND THE
INDEMNIFIED PARTIES UNDER THIS AGREEMENT SHALL BE
BROUGHT AND DETERMINED IN THE FEDERAL AND STATE COURTS
LOCATED WITHIN THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR
COLLIER COUNTY, FLORIDA. EACH OF THE PARTIES HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS
DESCRIBED IN THE PRECEDING TWO SENTENCES OF THIS SECTION
FOR ITSELF AND WITH RESPECT TO ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY (AND AGREES NOT TO COMMENCE ANY
PROCEEDING RELATING THERETO EXCEPT IN SUCH COURTS). EACH
OF THE PARTIES FURTHER AGREES TO ACCEPT SERVICE OF PROCESS
IN ANY MANNER PERMITTED BY SUCH COURTS. EACH OF THE
PARTIES HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES,
AND AGREES NOT TO ASSERT, BY WAY OF MOTION OR AS A
DEFENSE, COUNTERCLAIM OR OTHERWISE, IN ANY PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY, (A) ANY CLAIM THAT IT
IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF THE ABOVE -
NAMED COURTS FOR ANY REASON OTHER THAN THE FAILURE
LAWFULLY TO SERVE PROCESS, (B) AND TO THE FULLEST EXTENT
PERMITTED BY LAW, THAT (I) THE PROCEEDING IN ANY SUCH
COURT IS BROUGHT IN AN INCONVENIENT FORUM, (II) THE VENUE
OF SUCH OR PROCEEDING IS IMPROPER OR (III) THIS AGREEMENT,
8
OR THE SUBJECT MATTER HEREOF, MAY NOT BE ENFORCED IN OR
BY SUCH COURTS.
9.9 Personal Liability. This Agreement will not create or be deemed to create or
permit any personal liability or obligation on the part of any direct or indirect
stockholder, member or partner of any party or any representative or elected or
appointed official of, or investor in, any party.
9.10 Assignment; Successors. Except with respect to the Escrow Agent as
permitted under this Agreement. Neither this Agreement nor any of the rights,
interests or obligations under this Agreement may be assigned or delegated, in
whole or in part, by operation of law or otherwise, by any party without the prior
written consent of the other parties, and any such assignment without such prior
written consent will be null and void. Subject to the preceding sentence, this
Agreement will be binding upon, inure to the benefit of, and be enforceable by,
the parties and their respective successors and assigns.
9.11 Severability. The provisions of this Agreement will be deemed severable
and the invalidity or unenforceability of any provision will not affect the validity
or enforceability of the other provisions hereof; provided that if any provision of
this Agreement, as applied to any party or to any circumstance, is adjudged not to
be enforceable in accordance with its terms, the parties agree that such
determination will have the power to modify the provision in a manner consistent
with its objectives such that it is enforceable, and/or to delete specific words or
phrases, and in its reduced form, such provision will then be enforceable and will
be enforced.
9.12 Waiver of Jury Trial. THE PARTIES EACH HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY
MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY PROCEEDING
BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION
WITH, THIS AGREEMENT. THE PARTIES EACH ACKNOWLEDGE AND
AGREE THAT IT HAS RECEIVED FULL AND SUFFICIENT
CONSIDERATION FOR THIS PROVISION AND THAT THIS PROVISION IS
A MATERIAL INDUCEMENT FOR SUCH PARTY ENTERING INTO THIS
AGREEMENT.
9.13 Counterparts. This Agreement may be executed in two or more
counterparts, all of which will be considered one and the same instrument and will
become effective when one or more counterparts have been signed by each of the
parties and delivered to the other parties.
9.14 Execution. This Agreement may be executed by delivery of a signature by
facsimile or other electronic means reasonably acceptable to the parties and such
signature will constitute an original for all purposes.
116 q
9.15 Time of Essence. Time is of the essence with regard to all dates and time
periods set forth or referred to in this Agreement. No party shall be liable or
responsible to the other parties, nor be deemed to have defaulted under or
breached this Agreement, for any failure or delay in fulfilling or performing any
term of this Agreement, when and to the extent such failure or delay is caused by
or results from acts beyond the affected party's reasonable control, including,
without limitation: (a) acts of God; (b) flood, fire or explosion; (c) war, invasion,
riot or other civil unrest; (d) government order or law; (e) actions, embargoes or
blockades in effect on or after the date of this Agreement; (f) action by any
governmental authority; (g) national or regional emergency; and (h) strikes, labor
stoppages or slowdowns or other industrial disturbances.
9.16 No Presumption Against Drafting Party. The parties each acknowledge
that each party to this Agreement has been represented by counsel in connection
with this Agreement and the transactions contemplated by this Agreement.
Accordingly, any rule of law or any legal decision that would require
interpretation of any claimed ambiguities in this Agreement against the drafting
party has no application and is expressly waived.
9.17 Further Assurances. Each party covenants that at any time, and from time
to time, it will execute such additional instruments and take such actions as may
be reasonably requested by any of the other parties to confirm or perfect or
otherwise to carry out the intent and purposes of this Agreement.
9.18 Termination. Except as otherwise expressly provided herein, this
Agreement shall continue in effect until ninety (90) days after the date on which
all of the contents of the Escrow Account have been released in accordance with
Section 5 above and, without any further action by the parties, shall terminate on
such date. Such termination shall not affect the liability of any party with respect
to any breach by such party of this Agreement occurring prior to the date of
termination
[remainder ofpage intentionally left blank; signature pages) follow]
10
I I B
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
date first set forth above.
FPL:
Florida Power & Light Company
Bv:
Name: George K. Hardy
Title: Vice President, Distribution
Witness:
Print Name:
Witness:
Print Name:
ATTEST:
DWIGHT E. BROCK, Clerk
Deputy Clerk
Approved as to form and
legal sufficiency:
Scott R. Teach
Deputy County Attorney
11
BOARD OF COUNTY COMMISSIONERS
COLLIER COUNTY, FLORIDA
Fred W. Coyle, Chairman
11B �
Dwight E. Brock, Clerk of Court
By:
Name:
Witness:
Print Name:
Witness:
Print Name:
ESCROW AGENT:
Fifth Third Bank
Corporate Trust Services
By:
Name:
Title:
Witness:
Print Name:
Witness:
Print Name:
12
EXHIBIT A:
ESCROW ACCOUNT FEE SCHEDULE
Escrow Management Fee: $5,000.00
Legal Fees: $3,000.00
13
i1B
118
EXHIBIT B:
ESCROW DISBURSEMENT SCHEDULE
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EXHIBIT C:
OH/UG CONVERSION - CONSTRUCTION PHASE I
ILLUSTRATIVE TIMELINE
Ry
11B
EXHIBIT "C"
OH / UG Conversion - Construction Phase
Collier County - Vanderbilt Beach - Phase #1
Illustrative Timeline - *
Estimated Total
Time (wk.) Time
Bid Process (if required)
Underground Work - 8 to 10 10
Underground ( FPL )
Install new underground system 16 to 28 20
Overhead (FPL) - (Make Ready if required)
Make Ready Work 4 4
Individual Service Conversions - ( FPL /County )
Up to 180 -days 26 18
Foreign Utilities - County (if required)
OH Removal / New Underground 2 to 4 4
Overhead (FPL) - Removal
Overhead Facilities removal once 6 to 10 9
all foreign attachments are
removed from the poles
65 wk.
* This illustrative timeline is provided solely for the purpose of a general estimate for the completion of the
Conversion project and in no way supersedes or alters the UFCA, or FPL's general construction practices.
The parties understand and acknowledge that the illustrative timeline is subject to weather
conditions (e.g. storm events, hurricanes, cold snaps, etc.) labor or material shortages, or other acts _.
of God that may affect the timing of the project and hold FPL harmless for any delays to the project
that may occur outside this illustrative timeline.
11
OFFICE OF THE COUNTY ATTORNEY
MEMORANDUM
DATE: January 13, 2012
TO: Martha Vergara, Deputy Clerk
Minutes & Records Department
FROM: Sandra Herrera, Certified Paralegal to:
Scott R. Teach, Deputy County Attorn
SUBJECT: Escrow Agreement with FPL
Attached is an original fully executed Escrow Agreement with FPL for the December 14, 2011,
Board of County Commissioners approved item #1113. Please make the attached original
agreement as part of the Board's Official Records.
If you have any questions, please do not hesitate to call me at 252 -8401. Thank you!
Attachment
11- ECM - 01568/17
dYall c
3.
1 B-la
Escrow Agreement
This Escrow Agreement ("Agreement") is made and entered into this 14th day of
December, 2011, by and among Collier County, a political subdivision of the State of
Florida ("County"), by and through its Board of County Commissioners as the governing
body of the Vanderbilt Beach Beautification Municipal Service Taxing Unit(collectively,
"County"), the Collier County Clerk of the Circuit Court ("Clerk"), Florida Power &
Light Company, a Florida corporation ("FPL") and Fifth Third Bank ("Fifth Third"), an
Ohio banking corporation and a qualified public depository as defined under Section
280.02(26), Florida Statutes, as escrow agent("Escrow Agent").
RECITALS:
WHEREAS, the County requested that FPL convert certain overhead electric
distribution facilities to underground electric distribution facilities ("Conversion" or
"Project), and to that end, the County paid FPL an engineering deposit in the amount of
thirteen thousand twenty seven dollars ($13,027.00) on March 12, 2009, to develop a cost
estimate for the Conversion; and
WHEREAS, pursuant to Rule 25-6.115, Florida Administrative Code
("Conversion Rule") and FPL's Florida Public Service Commission ("FPSC")-approved
Tariff Rule 12 ("Conversion Tariff'), FPL provided the County a Binding Cost Estimate
("BCE") for the Conversion along with an Underground Facilities Conversion Agreement
— Governmental Adjustment Factor Waiver Agreement ("UFCA") on August 24, 2011;
and
WHEREAS, the UFCA outlines the total contribution-in-aid-of-construction
("CIAC") required for the Conversion in the amount of two million eight hundred
twenty-one thousand nine hundred and eighteen dollars ($2,821,918.00); and
WHEREAS, pursuant to the Conversion Rule and Conversion Tariff, County is
eligible for the Government Adjustment Factor Waiver ("GAF Waiver") in the amount of
six hundred six thousand three hundred seventy three dollars ($606,373.00) which
provides a corresponding reduction to the CIAC that would otherwise be due from
County for the Conversion; and
WHEREAS, the Conversion Rule and Conversion Tariff also provide for other
reductions to the CIAC, including a credit in the amount of five hundred fifty-two
thousand one hundred fifty dollars ($552,150.00), which represents the cost to install an
overhead electrical distribution system at current hardening standards; and
WHEREAS, after the net reductions to CIAC outlined above and as more
specifically set forth in the UFCA, the BCE that the County is to pay at the outset of the
Conversion is one million eight hundred six thousand ninety one dollars ($1,806,091.00)
("County CIAC Amount"); and
1
.f
11B
WHEREAS, on November 8, 2011, the Collier County Board of Commissioners
approved entering into the UFCA; and
WHEREAS, pursuant to Article VIII, Section 1(d) of the Florida Constitution and
Section 28.12, Florida Statutes, the Clerk is the auditor and custodian of all County
funds; and
WHEREAS, by virtue of the UFCA, Conversion Tariff and Conversion Rule,
County, Clerk and FPL desire to enter into this Agreement for the purpose of establishing
an Escrow Account with the Escrow Agent, delivering the County CIAC Amount (the
"Escrowed Funds") to the Escrow Agent in satisfaction of the requirement that County
pay the BCE at the outset of the Conversion and providing a procedure for the Clerk to
review and approve disbursement of Escrowed Funds.
NOW, THEREFORE, in consideration of the foregoing, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:
1. Establishment of an Escrow Account. FPL and the County hereby authorize and
direct the Escrow Agent to establish an Escrow Account ("Account") and the Escrow
Agent hereby accepts such appointment, on the terms and conditions set forth in this
Agreement. The Account shall be a non-interest bearing, Unlimited FDIC Account at
Fifth Third Bank and shall be entitled "Escrow Account Fifth Third Bank FBO Collier
County and Florida Power & Light Company Account No. 44-003-9412099." The
County shall be responsible to pay all costs, fees and expenses of the Escrow Agent, if
any, arising from or in connection with the Account.
1.1 The Parties direct the Escrow Agent to place the Escrowed Funds in a Fifth Third
Bank account with the same protections as a qualified public depository in the State
of Florida. Exhibit "A" attached hereto states the fee schedule that will apply to the
Account.
2. Escrow Agent Reporting Requirements. Each month during the term of this
Agreement, the Escrow Agent shall issue to FPL, the Clerk and County a current
statement of Account activity for the period, including starting balance, deposits in the
Account, withdrawals from the Account, and ending balance. County, Clerk and FPL
agree and direct Escrow Agent that the Escrowed Funds are owned by the County for tax
reporting.
3. Deposit of County CIAC Amount. As a condition precedent to the
commencement of the Conversion, County shall fully execute the UFCA and Clerk shall
deposit one million eight hundred six thousand ninety-one dollars ($1,806,091.00) in the
Account, which represents the net County CIAC Amount due. County shall evidence
such deposit by delivering to FPL receipt of deposit within five (5) business days of the
full execution of this Agreement and the UFCA.
2
118
4. Progress Milestones—Notice of Completion. FPL shall complete the Conversion
in accordance with the construction drawings and specifications set forth in Attachment
A of the UFCA, the progress milestone ("Milestone") set forth in the escrow
disbursement schedule attached hereto as Exhibit `B" and the illustrative timeline
attached hereto as Exhibit "C." The initial Milestone is the procurement of certain
special order material required for the Conversion. Upon completion of the initial
materials procurement Milestone, FPL shall provide County, Clerk and Escrow Agent
written notice of Milestone completion along with a purchase order which includes a
detailed list of materials and quantities as evidence of the procurement. Upon completion
of each of the remaining Milestones set forth in Exhibit "B," FPL shall provide County,
Clerk and Escrow Agent notice of Milestone completion along with a signed "redline"
drawing as evidence of Milestone completion. Clerk, at its sole discretion, may also
make arrangements with FPL for physical inspection of the Conversion, coordinating his
inspection with FPL, as further evidence of Milestone completion, in which FPL shall
cooperate. Clerk and County acknowledge and understand that, pursuant to the UFCA,
Conversion Rule and Conversion Tariff, the County CIAC Amount is a fixed-price
contribution toward the Conversion and is not subject to further reduction or payment
offset. The Account shall terminate upon the earlier of 24 months from the date of initial
deposit or the disbursement of the fourth and final draw in accordance with Exhibit "B,"
below and any funds then remaining in the Account shall be paid to the County upon
written request of the County.
5. Disbursement of Escrowed Funds. The Clerk shall have ten (10) business days
after receipt to review each notice of Milestone completion and determine if the notice of
Milestone completion is complete, proper and accurate, if the Milestone is complete
(which may include physical inspection), if payment to FPL is appropriate and to either:
(a) provide Escrow Agent and FPL with notice of approval to disburse Escrowed Funds;
or (b) provide Escrow Agent and FPL with notice of rejection of approval to disburse
Escrowed Funds. Upon receipt from Clerk of notice of approval to disburse Escrowed
Funds, the Escrow Agent shall disburse to FPL from the Escrowed Funds the amount set
forth in the applicable notice of Milestone completion (the "Milestone Payment"). In
the event that the Clerk provides Escrow Agent with notice of rejection of approval to
disburse Escrowed Funds or fails to provide a notice of approval or rejection within ten
(10) business days, FPL may, at its sole discretion, issue a stop-work order and
discontinue further progress on the Conversion until such time as full payment is received
according to the Milestone schedule set forth in Exhibit `B." The Escrow Agent has no
obligation or right to disburse funds from escrow unless and until receipt of a written
notice of approval from the Clerk.
6. Concerning the Escrow Agent. The acceptance by the Escrow Agent of its
responsibilities under this Agreement is subject to the following terms and conditions,
which the parties agree shall govern and control with respect to the Escrow Agent's
rights, duties, liabilities and immunities:
6.1 Limited Obligations. The Escrow Agent shall have only those duties as are
specifically and expressly set forth in this Agreement, which shall be deemed
3
. .
118
purely ministerial in nature, and shall under no circumstance be deemed a
fiduciary for any of the other parties to this Agreement. The Escrow Agent shall
not be required to take any action hereunder involving any expense unless the
payment of such expense is made or provided for in a manner reasonably
satisfactory to it.
6.2 Good Faith Reliance. The Escrow Agent shall not be liable for any action
taken or omitted by it in good faith and in the exercise of its own best judgment,
and may rely conclusively and shall be protected in acting upon any order, notice,
demand, certificate, opinion or advice of counsel in such matters (including
counsel chosen by the Escrow Agent), statement, instrument, report or other paper
or document (not only as to its due execution and the validity and effectiveness of
its provisions, but also as to the truth and acceptability of any information therein
contained) which is believed by the Escrow Agent to be genuine and to be signed
or presented by the proper person or persons. The Escrow Agent shall not be
bound by any notice or demand, or any waiver, modification, termination or
rescission of this Agreement unless evidenced by a writing delivered to the
Escrow Agent signed by the proper party or parties and, if the duties or rights of
the Escrow Agent are affected, unless Escrow Agent shall have given its prior
written consent thereto.
6.3 Limitations. The Escrow Agent shall not be liable for any error of judgment
or for any act done or step taken or omitted by it in good faith, or for anything
which it may do or refrain from doing in connection herewith, except for its own
gross negligence or willful misconduct. The Escrow Agent may consult with, and
obtain advice from, legal counsel in the event of any question as to any of the
provisions hereof or the duties. hereunder, and it shall incur no liability and shall
be fully protected in acting in good faith in accordance with the opinion and
instructions of such counsel. The reasonable and documented costs of such
counsel's services shall be paid to the Escrow Agent in accordance with Section
9.1 below. The Escrow Agent shall neither be responsible for, nor chargeable with
knowledge of, the terms and conditions of any other agreement, instrument or
document between or among the other parties hereto, or the requirements of any
law, regulation or policy affecting the business or operations of the other parties.
This Agreement sets forth all matters pertinent to the escrow contemplated
hereunder, and no additional obligations of the Escrow Agent shall be inferred
from the terms of this Agreement or any other agreement, instrument or
document.
6.4 Interpretation. If the Escrow Agent shall be uncertain as to its duties or rights
hereunder or-shall receive instructions, claims or demands from the Clerk, County--
or FPL which, in its opinion, conflict with any of the provisions of this
Agreement, it shall be entitled to refrain from taking any action and its sole
obligation shall be to keep safely all property held in escrow until it shall be
directed otherwise in writing jointly by the Clerk, County and FPL or by a final
and non-appealable order of a court of competent jurisdiction. The Escrow Agent
4
1
16
shall have the option, after sixty (60) days' notice to the Clerk, County and FPL of
its intention to do so, to file an action in interpleader requiring the Clerk, County
and FPL to answer and litigate any claims and rights among themselves.
6.5 Further Assurances. From time to time, FPL, County and the Clerk shall
deliver or cause to be delivered to the Escrow Agent such further documents and
instruments and shall do or cause to be done such further law acts as the Escrow
Agent shall reasonably request to carry out more effectively the provisions and
purposes of this Agreement, to evidence compliance herewith or to assure itself
that it is protected in acting hereunder.
6.6 Resignation and Removal. The Escrow Agent may resign at any time and be
discharged from its duties hereunder by its giving the other parties hereto thirty
(30) days prior written notice, and such resignation shall become effective as
hereinafter provided. Such resignation shall become effective at such time that the
Escrow Agent shall turn over to a successor escrow agent jointly appointed by the
Clerk, County, FPL. If no new escrow agent is so appointed within the 30 day
period following the receipt of such notice of resignation, Escrow Agent may
deposit the Escrow Fund with any court, pursuant to an appropriate court
proceeding, it reasonably deems appropriate and advise the County, Clerk and
FPL accordingly. The Escrow Agent may be removed (with or without cause) and
a new escrow agent may be appointed upon mutual agreement of the Clerk,
County and FPL. In such event, the Clerk, County and FPL shall deliver joint
written notice to the Escrow Agent of such removal together with joint written
instructions authorizing delivery of this Agreement together with the Escrow
Funds (including any Escrow Income earned thereon) and any and all related
instruments or documents to a successor escrow agent.
6.7 Limited Duties. This Agreement expressly sets forth all the duties of Escrow
Agent with respect to any and all matters pertinent hereto. No implied duties or
obligations shall be read into this Agreement against Escrow Agent. Escrow
Agent shall not be bound by the provisions of any agreement among the other
parties hereto except this Agreement
7. The County and FPL shall jointly and severally indemnify and hold the Escrow
Agent and its officers, directors, shareholders, affiliates, employees and agents
("Indemnified Parties") harmless from and against any liability, loss, damage or expense
(including, without limitation, documented attorney's fees adjudged to be reasonable)
that the Escrow Agent may incur in connection with this Agreement and its performance
hereunder or in connection herewith, except to the extent such liability, loss, damage or
expense arises from the Escrow Agent's willful misconduct or gross negligence. This
provision shall survive the termination of this Agreement and the resignation or removal
of the Escrow Agent. This paragraph shall not be construed in any way to alter the
County's sovereign immunity or extend the County's liability beyond the limits
established in Section 768.28, Florida Statutes.
5
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1B
8. UFCA, Conversion Rule, Conversion Tariff. The parties understand and
acknowledge that this Agreement in no way alters or diminishes the UFCA, Conversion
Rule or Conversion Tariff and that both the County and FPL's rights under the UFCA,
Conversion Rule and Conversion Tariff remain unchanged by this Agreement. Escrow
Agent has no obligation whatsoever with respect to the UFCA, Conversion Rule or
Conversion Tariff.
9. Miscellaneous Provisions.
9.1 Fees and Expenses. All fees and expenses incurred in connection with or
related to this Agreement and the transactions contemplated hereby and thereby
will be paid by as previously set forth herein at numbered paragraph one(1).
9.2 Amendment and Modification. This Agreement may not be amended,
modified or supplemented in any manner, whether by course of conduct or
otherwise, except by an instrument in writing signed by each party which states
that it constitutes an amendment, modification or supplement (as applicable) of or
to this Agreement and, with respect to an amendment or modification, specifies
the provisions hereof being amended or modified (as applicable).
9.3 Waiver. No failure or delay of any party in exercising any right or remedy
hereunder will operate as a waiver thereof, nor will any single or partial exercise
of any such right or power, or any abandonment or discontinuance of steps to
enforce such right or power, or any course of conduct, preclude any other or
further exercise thereof or the exercise of any other right or power. Except as
provided herein, the rights and remedies of the parties hereunder are cumulative
and are not exclusive of any rights or remedies, which they would otherwise have
hereunder. Any purported waiver by any party of any provision of this
Agreement will be valid only if set forth in a written instrument signed by the
party providing such waiver which states that it constitutes a waiver to this
Agreement.
9.4 Notices. All notices, deliveries and other communications hereunder will be
in writing and will be deemed duly given: (a) on the date of delivery if delivered
personally, or if by facsimile, upon written confirmation of receipt by facsimile;
(b) on the first business day following the date of dispatch if delivered utilizing a
nationally recognized next-day courier service; (c) upon the delivery of an e-mail
read receipt confirmation; or (d) on the earlier of confirmed receipt or the fifth
business day following the date of mailing if delivered by registered or certified
mail, return receipt requested, postage prepaid. All notices hereunder will be
delivered to the addresses set forth below, or pursuant to such other instructions as
may be designated in writing by the party to receive such notice.
(i) if to the Clerk, sent to:
Constance C. Murray
General Operations Manager, Finance Department
A
•
lie
Collier County Clerk of the Circuit
3299 Tamiami Trail East, Suite 700
Naples, FL 34112-5749
Email: Connie.Murray @collierclerk.com
Facsimile: (239) 732-2726
Copies to:
Derek Johnssen
General Accounting Manager, Finance Department
Clerk of the Circuit Court
Collier County Government Center
3299 Tamiami Trail East, Suite 403
Naples, FL 34112
Email: Derek.Johnssen @collierclerk.com
Facsimile: (239) 732-2726
(ii) if to the FPL, to:
Florida Power& Light Company
do John Lehr
700 Universe Blvd.
Juno Beach, FL 33408
Email: john.lehr @fpl.com
with copies (which will not constitute notice)to:
John T. Butler, Esq. /Attention: General Counsel
700 Universe Blvd. (LAW/JB)
Juno Beach, FL 33408
Facsimile: (561) 691-7135
Email: john.butler @fpl.com
(iii) if to the Escrow Agent, to:
Fifth Third Bank
Kimberly Kutlenios
200 East Robinson Street
MD MBLE9B
Orlando, FL 32801
Phone: (407) 999-3027
Facsimile: (321) 445-3047
Email: kimberly.kutlenios.@53.com
118
9.5 Entire Agreement. This Agreement constitutes the entire agreement, and
supersede all prior written agreements, arrangements, communications and
understandings and all prior and contemporaneous oral agreements, arrangements,
communications and understandings, among the parties with respect to the subject
matter of this Agreement.
9.6 Third Party Beneficiaries. This Agreement will be binding upon and inure
solely to the benefit of each of the parties and their respective successors and
permitted assigns, and nothing in this Agreement, express or implied, is intended
to or will confer upon any other person any legal or equitable right, benefit or
remedy of any nature under or by reason of this Agreement.
9.7 Governing Law. THE RIGHTS AND OBLIGATIONS OF THE ESCROW
AGENT UNDER THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
FLORIDA, WITHOUT REGARD TO ANY CHOICE OR CONFLICT OF LAW
PROVISION OR RULE (WHETHER OF THE STATE OF FLORIDA OR ANY
OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION
THERETO OF THE LAWS OF ANY OTHER JURISDICTION.
9.8 Submission to Jurisdiction. ANY PROCEEDING WITH RESPECT TO THE
RIGHTS AND OBLIGATIONS OF THE ESCROW AGENT AND THE
INDEMNIFIED PARTIES UNDER THIS AGREEMENT SHALL BE
BROUGHT AND DETERMINED IN THE FEDERAL AND STATE COURTS
LOCATED WITHIN THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR
COLLIER COUNTY, FLORIDA. EACH OF THE PARTIES HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS
DESCRIBED IN THE PRECEDING TWO SENTENCES OF THIS SECTION
FOR ITSELF AND WITH RESPECT TO ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY (AND AGREES NOT TO COMMENCE ANY
PROCEEDING RELATING THERETO EXCEPT IN SUCH COURTS). EACH
OF THE PARTIES FURTHER AGREES TO ACCEPT SERVICE OF PROCESS
IN ANY MANNER PERMITTED BY SUCH COURTS. EACH OF THE
PARTIES HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES,
AND AGREES NOT TO ASSERT, BY WAY OF MOTION OR AS A
DEFENSE, COUNTERCLAIM OR OTHERWISE, IN ANY PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY, (A) ANY CLAIM THAT IT
IS NOT PERSONALLY SUBJECT_TO_THE JURISDICTION OF THE ABOVE-
NAMED COURTS FOR ANY REASON OTHER THAN THE FAILURE
LAWFULLY TO SERVE PROCESS, (B) AND TO THE FULLEST EXTENT
PERMITTED BY LAW, THAT (I) THE PROCEEDING IN ANY SUCH
COURT IS BROUGHT IN AN INCONVENIENT FORUM, (II) THE VENUE
OF SUCH OR PROCEEDING IS IMPROPER OR (III) THIS AGREEMENT,
4
11B
OR THE SUBJECT MATTER HEREOF, MAY NOT BE ENFORCED IN OR
BY SUCH COURTS.
9.9 Personal Liability. This Agreement will not create or be deemed to create or
permit any personal liability or obligation on the part of any direct or indirect
stockholder, member or partner of any party or any representative or elected or
appointed official of, or investor in, any party.
9.10 Assignment; Successors. Except with respect to the Escrow Agent as
permitted under this Agreement. Neither this Agreement nor any of the rights,
interests or obligations under this Agreement may be assigned or delegated, in
whole or in part, by operation of law or otherwise, by any party without the prior
written consent of the other parties, and any such assignment without such prior
written consent will be null and void. Subject to the preceding sentence, this
Agreement will be binding upon, inure to the benefit of, and be enforceable by,
the parties and their respective successors and assigns.
9.11 Severability. The provisions of this Agreement will be deemed severable
and the invalidity or unenforceability of any provision will not affect the validity
or enforceability of the other provisions hereof; provided that if any provision of
this Agreement, as applied to any party or to any circumstance, is adjudged not to
be enforceable in accordance with its terms, the parties agree that such
determination will have the power to modify the provision in a manner consistent
with its objectives such that it is enforceable, and/or to delete specific words or
phrases, and in its reduced form, such provision will then be enforceable and will
be enforced.
9.12 Waiver of Jury Trial. THE PARTIES EACH HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY
MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY PROCEEDING
BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION
WITH, THIS AGREEMENT. THE PARTIES EACH ACKNOWLEDGE AND
AGREE THAT IT HAS RECEIVED FULL AND SUFFICIENT
CONSIDERATION FOR THIS PROVISION AND THAT THIS PROVISION IS
A MATERIAL INDUCEMENT FOR SUCH PARTY ENTERING INTO THIS
AGREEMENT.
9.13 Counterparts. This Agreement may be executed in two or more
counterparts, all of which will be considered one and the same instrument and will
become effective when one or more counterparts have been signed by each of the
parties and delivered to the other parties.
9.14 Execution. This Agreement may be executed by delivery of a signature by
facsimile or other electronic means reasonably acceptable to the parties and such
signature will constitute an original for all purposes.
4
. 1 1
9.15 Time of Essence. Time is of the essence with regard to all dates and time
periods set forth or referred to in this Agreement. No party shall be liable or
responsible to the other parties, nor be deemed to have defaulted under or
breached this Agreement, for any failure or delay in fulfilling or performing any
term of this Agreement, when and to the extent such failure or delay is caused by
or results from acts beyond the affected party's reasonable control, including,
without limitation: (a) acts of God; (b) flood, fire or explosion; (c) war, invasion,
riot or other civil unrest; (d) government order or law; (e) actions, embargoes or
blockades in effect on or after the date of this Agreement; (f) action by any
governmental authority; (g) national or regional emergency; and (h) strikes, labor
stoppages or slowdowns or other industrial disturbances.
9.16 No Presumption Against Drafting Party. The parties each acknowledge
that each party to this Agreement has been represented by counsel in connection
with this Agreement and the transactions contemplated by this Agreement.
Accordingly, any rule of law or any legal decision that would require
interpretation of any claimed ambiguities in this Agreement against the drafting
party has no application and is expressly waived.
9.17 Further Assurances. Each party covenants that at any time, and from time
to time, it will execute such additional instruments and take such actions as may
be reasonably requested by any of the other parties to confirm or perfect or
otherwise to carry out the intent and purposes of this Agreement.
9.18 Termination. Except as otherwise expressly provided herein, this
Agreement shall continue in effect until ninety (90) days after the date on which
all of the contents of the Escrow Account have been released in accordance with
Section 5 above and, without any further action by the parties, shall terminate on
such date. Such termination shall not affect the liability of any party with respect
to any breach by such party of this Agreement occurring prior to the date of
termination
[remainder ofpage intentionally left blank; signature page(s)follow]
10
11B
IN WITNESS WHEREOF,the parties have duly executed this Agreement as of the
date first set forth above.
FPL:
Florida Power& Light Comp. y
By: ' f
Name: Geor_,; K. ardy
Title: Vice President, Distributio
Witness:
a
__
Print Name: S2.
Witness-
Vij
'/
Print Name: ,Sonj.-Sint Et.-R&a
ATTEST: '' BOARD OF COUNTY COMMISSIONERS
BRO ,Ct r COLLIER COUNTY, FLORIDA
9' r . BY: '
4 SS t x., • I Fred W. Coyle, Chairman
Approved as to form and
legal sufficienc :
Scott R. Teach
Deputy County Attorney
11
1113
Dw'ght rock, • erk of Court
I _
BY: Amor _ I/-_�►
Name: 4-
Witness:
Print Name:
Witness:
Print Name:
ESCROW AGENT:
Fifth Third Bank
Corporate Tru•t Services
By: 1 4 1 1." •-A , I.
Name: k /)er ki/ 1 w
Title: U /ce ge.
Witness:
Print Name: J-X-txyu
Witness:7/1fi
Prin ame: �� AJ. ,4,,t4.0
12
11B H
EXHIBIT A:
ESCROW ACCOUNT FEE SCHEDULE
Escrow Management Fee: $5,000.00
Legal Fees: $3,000.00
13
t1B
•
EXHIBIT B:
ESCROW DISBURSEMENT SCHEDULE
. , ` • . . . •
11B1
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EXHIBIT C:
OH/UG CONVERSION-CONSTRUCTION PHASE 1
ILLUSTRATIVE TIMELINE
11.6
EXHIBIT "C"
FPL
OH / UG Conversion - Construction Phase
Collier County - Vanderbilt Beach - Phase#1
Illustrative Timeline - *
Estimated Total
• Time (wk.) Time
Bid Process (if required)
Underground Work- 8 to 10 10
Underground ( FPL)
Install new underground system 16 to 28 20
Overhead (FPL) - (Make Ready if required)
Make Ready Work 4 4
Individual Service Conversions -( FPL/County)
Up to 180-days 26 18
Foreign Utilities -County(if required)
OH Removal/New Underground 2 to 4 4
Overhead (FPL) - Removal
Overhead Facilities removal once 6 to 10 9
all foreign attachments are
removed from the poles
65 wk.
This illustrative timeline is provided solely for the purpose of a general estimate for the completion of the
Conversion project and in no way supersedes or alters the UFCA,or FPL's general construction practices.
The parties understand and acknowledge that the illustrative timeline is subject to weather
conditions(e.g.storm events, hurricanes, cold snaps, etc.)labor or material shortages,or other acts
of God that may affect the timing of the project and hold FPL harmless for any delays to the project
that may occur outside this illustrative timeline.
118
STATE OF FLORIDA )
) SS:
COUNTY OF PALM BEACH)
AFFIDAVIT OF JOHN LEHR
BEFORE ME this day personally appeared John Lehr, who after being duly sworn,
deposes and says:
1. I am over the age of eighteen years and have personal knowledge of the matters stated
herein.
2. I am currently employed by Florida Power & Light Company ("FPL") and have been
so employed since 1985. My current position with FPL is Lead Project Manager, Distribution
3. In my employment for FPL I am familiar with Collier County's Vanderbilt Beach
Beautification Municipal Service Taxing Unit's ("MSTU") underground utility conversion
project (the "Project") and the proposed construction of that Project by FPL as identified in
the Underground Facility Conversion Agreement ("UFCA") that was approved by the Collier
County Board of Commissioners, as the governing body of the MSTU, at its November 8,
2011, regular Board meeting.
4. The construction and improvement to the electric utility per the UFCA will be
performed by designated personnel of the system.
FURTHER AFFIANT SAYETH NAUGHT.
.//i
STATE OF FLORIDA
E
COUNTY OF PALM BEACH
SWORN TO (OR AFFIRMED) AND SUBSCRIBED before me this / 94-11 day of
December, 2011, by John Lehr,who is personally known to me.
SIGNATURE OF NOTARY PUBLIC
PRINT, YPE OR STAMP
COMMISSIONED NAME OF,24SRY
PUBLIC
MY COMMISSION EXPIRES:
+ rP�' Pamela L.Springer
?.' CCMMSSION#EE085473
D(=IRES:APR.18,2015
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