KIAWAH ISLAND UTILITY, INC.
DOCKET NO. 2011-317-W/S
PRE-FILED REBUTTAL TESTIMONY OF BECKY DENNIS
TO THE TESTIMONY OF INTERVENOR KPOG’S EXPERTS
FILED NOVEMBER 16, 2011
BEFORE THE SOUTH CAROLINA PUBLIC SERVICE COMMISSION
Testimony Prepared: November 23, 2011
Hearing Date: November 30, 2011
THIS REBUTTAL TESTIMONY IS FILED PURSUANT TO THE REVISED PSC NOTICE DATED NOVEMBER 8, 2011. THE APPLICANT RESERVES THE RIGHT TO SUPPLEMENT THIS TESTIMONY AND TO PROVIDE FURTHER REPLY TESTIMONY TO THE TESTIMONY OF KPOG’S EXPERTS.
MR. WALKER: In the prefiled testimony of KPOG expert Ellen Blumenthal, she
referred to a Utilities Service Agreement between KIU and KRA. Are you familiar
with that agreement?
MS. DENNIS: Yes. The Utilities Service Agreement she referred to was dated
July 29, 1994, before the entry of a Development Agreement between the Town of
Kiawah Island and KRA in September 1994.
MR. WALKER: Is the 1994 Utilities Service Agreement still in effect?
MS. DENNIS: No. The 1994 Utilities Service Agreement was terminated on June
6, 1997. I have attached a copy of the recorded termination as Exhibit A to my
testimony.
MR. WALKER: Was a new Utilities Service Agreement entered after the
1
termination?
MS. DENNIS: Yes. At the same time as the 1994 agreement was terminated, a new
Utilities Service Agreement was entered. I have attached a copy of the 1997
Utilities Service Agreement dated June 5, 1997, as Exhibit B to my testimony.
MR. WALKER: Does the 1997 agreement also include a provision addressing the
sale of real property from KRA to KIU?
MS. DENNIS: Yes. Paragraph 6 states as follows:
“6. As additional consideration to KIU for entering into this Agreement, KRA shall
provide additional land to KIU, if required to meet the obligations hereof, at a price
to be agreed upon, but not to exceed the fair market value of such property at the
time of transfer to KIU. KRA shall have the sole discretion to select the location of
any such property within the Sora Rail Road tract and other areas.”
MR. WALKER: Is the 1997 Utilities Service Agreement still in effect?
MS. DENNIS: Yes.
MR. WALKER: The testimony of KPOG’s expert witnesses refers to the sale of certain sewer facilities from KRA in 2005. Please explain this transaction.
Ms. DENNIS: In August 2005 we inventoried the sewer facilities constructed by
KRA that were in place and operational that had not been conveyed to KIU. These facilities consisted of sewer distribution lines and sewer transmission lines. KRA transferred the sewer distribution lines as a donation. The value of this donation was
$507,501.90. KIU purchased the sewer transmission lines for $382,666. The purchase of the transmission lines was in keeping with prior practice and orders of the Public
2
Service Commission in prior rate cases. I have attached a copy of the schedules of the
facilities that were conveyed as well as the Bills of Sale for the transfers as Exhibit C to my
testimony.
MR. WALKER: In the prefiled testimony of Mr. Rogers, he referred to work performed
for KIU by Gulfstream Construction Company. Is Gulfstream an affiliate of KIU or KRA?
MS. DENNIS: Not to my knowledge.
MR. WALKER: Did KIU take steps to make sure that the work performed for it by
Gulfstream Construction Company was reasonably priced?
MS. DENNIS: Yes, the cost of the work done by Gulf Stream was negotiated through
KIU’s engineers based on their knowledge of the costs for similar jobs. In my estimation,
because the engineers negotiated the price down on our behalf, the amounts we paid
Gulfstream were below what we would have paid other contractors, not higher.
END OF REBUTTAL TESTIMONY
3
EXHIBIT A
p~()"-
/ ~~ UC::ooj 0 'n 7497 c) STATE OF SOUTH CAROLINA ) ) TERMINATION OF COUNTY OF CHARLESTON ) UTILITYUTtLITY SERVICE AGREEMENT
WHEREAS, KiawahKiawal. Resort Associates.Assoaates L.P,u.P. ("KRA').('KRA'), a Delaware limited
partnership, andanci Kiawah Island Utility.Util!ty. Inc,inc, C'KIU")("KIU") entered a Utility Service Agreement
dated July 29,29. 1994; and
WHEREAS,VVHEREAS, KRA and KiUKlU entered a Memorandum ofor UtilityUtf)lty Service ,A,greementAgreement
recorded in the RMC Office for Charleston County at Book R247, Page 129, providingprovidir,g
notice of the Utility ServiceServ(ce Agreement dated July 29,29. 1994;
NOW THEREFORE. in returnreturr for the mutual promises stated herein and contained
in the Utility Service Agreement of even date herewith,herewitl, KRA and KIU hereby terminate the
Utility Service Agreement dated July 29,29. 1994,1994.
IN WITNESS WHEREOF, KiawahK)swah Resort Associates, LP.,L.P., has caused these presents to be executed in itsiis name by itsas General Partner thereunto duly authorized and
its seal to be hereunto affixed,affixeo. this ~~~ day of '-~ ,, inin the year of our
Lord One Thousand Nine Hundred andar,d Ninety-Seven,N)nety-Seven. in the Two Hundred and Twenty-
First year of the Sovereignty and Independenceindependence of the United States of America,America. EXHIBIT A 750
SIGNED, SEALED AND DELIVERED KIAWAH RESORT ASSOCIATES, L.P. IN THE PRESENCE OF: (SEAL)(SEAL} By: D&WD8W Investments, Inc.,inc., a South Carolina corporation (CORP.(CORP, SEAL) 211 King Street, Suite 300 Charleston, SC 29401 Its: General Partner
I By: ~D~y~C Its:its: President
STATE OF SOUTH CAROLINA ) ) COUNTY OF CHARLESTON )
THE FOREGOING INSTRUMENT was acknowledged before me by Kiawah Resort
Associates, L.P., by D8WD&W Investments, Inc., a South Carolina corporation, its General
Partner, by Charles P. Darby, III, its President, this ~~l.a'+'- day of ;3"", we....
1997.
J) - (SEAL) ~tary Publ" . f r South Carolina Myy commission expires: :;;.g - l~-l.;;;t· ;"00gobi I
KIAWAH ISLAND UTILITY, INC., a South Carolina Corporation (SEAL)(SEAL} P.O. BoBc@419 419 Charle t ,SC 29402
Blf Leonard L. Long, Jr. I Vice PresidBnt_.. _
2 EXHIBIT A
U2 8 oPG 751
STATE OF SOUTH CAROLINA ) ) PROBATE
COUNTY OF CHARLESTON )
PERSONALLY appeared before me the undersigned witness who after first being duly sworn, deposes and says that s/he saw the within-named Kiawah Islandisland Utility, Inc. a South Carolina corporation by Leonard L. Long, Jr.,Jn, its Vice President, sign, seal and as its act and deed, deliver the within-written of Termination of Utility Service Agreement for the uses and purposes therein mentioned, and that s/he together with the other witness whose signature appears above, witnessed the execution thereof.
SWORN TO BEFORE ME THIS 2.-ddayy off~. :..::::r",,-,,,- ,1997.F997. ~PCbl~ My Commissi
3 EXHIBIT A
752 ElisabethEIisab th F.F xbmmonsNimmons Legal PlalmingPlatrning Assistant KiawahKiaxrab Resort Associates,Associates. LP,L.P. POSlPost Office Box 419 Charleston,Cbarleston. SC 29402'9402 EXHIBIT B
STATE OF SOUTH CAROLINA ) ) UTILITY SERVICE AGREEMENT COUNTY OF CHARLESTON )
This Utility Service Agreement "Agreement" (this ) made and entered into this ~ d y f~, 7997 by and between Kiawah Resottn sociates, L.P. and K ah Island Utility, Inc. WITNESSETH
Kiawah Resort Associates, L.P. (nKRAn) is a Delaware limited partnership which
owns approximateiy 2,000 acres of undeveloped real property more particularly described
in Exhibit A attached hereto (the "Property") located on Kiawah Island, South Carolina on
which may be added several thousand housing units under current zoning authorizations, with a cap of adding 1974 such units plus extensive commercial, hotel, and mixed use
under a development agreement (the nDeveiopment Agreement") dated September 26,
1994, between KRA and the Town of Kiawah.
Kiawah Island Utility, Inc. (nKIUa) is a South Carolina corporation which owns approximately 18 acres of real estate more generally described in Exhibit B attached hereto (the nKIU Property") located on Kiawah Island South Carolina, together with various improvements, equipment, contract rights, easements, and other property rights.
KIU operates a water distribution and waste water collection and treatment system
(the "System") on the KIU Property for service to persons and businesses on Kiawah
Island, South Carolina.
KRA is in the process of developing the Property pursuant to its development plan
(the "Development Plan" ) which, by its nature, is subject to change over time, and in accordance with the Development Agreement. KIU has long supplied KRA with the water EXHIBIT B
and sewer needs and capacities necessary to allow KRA to develop the Property to its current state KIU's and continued supply of sufficient water and sewer capacity for future
development of the Property is essential to the value of the developed and undeveloped portions of the Property.
The historical relationship between KRA and KIU (with the former owning all shares
of stock in the latter) has been in large part responsible for the development of Kiawah
Island as a first-class residential and resort community, as well as the sound financial
status of KIU. The timely provision of water and sewer infrastructure and services assures that the highest values are created and maintained for all Kiawah properties. This has been possible in the past due to, among other things, the constant commitment of KRA to assist with financing of enhanced and continually expanding utilities infrastructure. A
utilities agreement is deemed necessary and desirable in order to facilitate and assure the continued mutual benefits to both KRA and KIU as development of Kiawah Island continues.
To that end, KRA desires to contract with KIU to provide tor the timely supply of water distribution and waste water collection and treatment with respect to the Property.
KIU desires to contract with KRA to assure that future needs for expansion and improvement of its capabilities are provided for in a timely and sufficient manner. Both parties acknowledge and agree that any failure or delay by KIU in complying with the terms, conditions, and obligations set forth in this Agreement will have a material and substantial adverse impact on the value of the Property and the ability of KRA to complete the development of the Property in accordance with the Development Plan and the Development Agreement. EXHIBIT B
KRA, KIU and their respective engineers and agents have reviewed the Develop-
ment Plan (relating to the commercial, rental, and mixed use parcels owned by KRA), and determined the capacities of water and waste water collection and treatment required during the various phases of development of the Property pursuant to the Development
Plan. Such estimated requirements are listed on Exbibi~ attached hereto and are generally referred to hereinafter collectively as the "Requirements," or, separately, as the
"Water Requirements" or the "Sewer Requirements".
NOW, THEREFORE, in consideration of the mutual promises set forth herein and other good and valuable consideration flowing to both parties, the receipt and adequacy of which are hereby acknowledged, the parties do hereby agree as follows:
1. Commencing as of the date of this Agreement and continuing for the entire term of this Agreement, KIU, its successors and assigns, shall, subject to the availability of the utility funds generated from customers according to KIU's Rate Schedule approved by the
South Carolina Public Service Commission ("PSC"):
a. Supply KRA, its successors and assigns, with all present and future
Requirements for all or any portion of the Property which is either developed,
under development or planned for development pursuant to the Develop-
ment Plan, as the same may be amended from time to time by KRA;
b. Maintain and operate the System in accordance with all applicable
Legal Requirements, and
c. Expand, modify, update, upfit, maintain, repair, improve and operate
the System in such manner as is necessary to allow KIU to supply the EXHIBIT B
Requirements provided for herein. This shall include, but not be limited to,
expending such capital in a timely manner as may be necessary to expand
the water delivered by the City of Charleston Commission of Public Works
("CPW") and/or the St. John's Water District so as to serve KRA's future
development of the Property.
2. So long as KIU complies with the terms of this Agreement and has the physical plant
and capacity to supply the Requirements to KRA, its successors or assigns, KRA, its
successors or assigns, agrees to purchase the Requirements from KIU at the rates which
are currently published by the PSC, or at such increased or decreased rates as may be
approved by the PSC from time to time. Anything to the contrary contained in the previous
sentence notwithstanding, KRA may provide water to all or any portion of the Property from
certain wells that KRA may estabiish from time to time.
3. KIU will not (i) apply for or support any change in rates by PSC which shall be
discriminatory against KRA, its successors or assigns, or any portion of the Property; or
(ii) enter into any agreement, arrangement or contract whereby any other entity, property
or project will have a greater priority than KRA or the Property with respect to the supply
of water distribution and/or waste water collection and treatment; (iii) charge KRA any fee,
exaction, or other monetary payment of any kind for provision of water and sewer services
other than those approved by the PSC. KIU and KRA acknowledge that the effluent
presently being produced by KIU's sewer treatment plant is a result of an aeration treatment process. In the event that subsequent to the effective date of this Agreement
either: (a) any legal requirement necessitates that the treatment of waste water be
increased to a higher standard with a resultant increase in the water quality of the effluent; EXHIBIT B
or (b) any capital expenditures are made by KIU for purposes of receipt and handling of
sewerage or effluent, or the treatment and delivery of water; then in such event the cost
thereof will be paid for by KIU and recovered by KIU by such permitted rate increases as
are approved by the PSC.
"Lots" 4. As KRA sells lots (the ) or other parcels or tracts (collectively, the "Parcels" )
of land in the course of the development of the Property, to the extent reasonably required
by KIU, KRA will reserve easements for the construction and maintenance of water and
sewer lines required for the supplying of the Requirements to the particular Lot or Parcels
being sold and all remaining portions of the Property. KRA, at its sole cost and expense, shall construct the distribution lines to the extent necessary to supply the Requirements in accordance with reasonable engineering and construction standards, all applicable
Legal Requirements, and the Development Plan.
Additionally, KRA shall, at times convenient to its normal development process, transfer the water and sewer lines and all related easements to KIU. KRA shall convey the distribution lines and related easements to KIU at no cost. KIU shall accept such transfers and shall maintain, repair, and replace those improvements and easements in a good, professional and workmanlike manner, from time to time, to the extent necessary to supply the Requirements. KIU's obligations to accept transfer of the lines and all related easements, and to maintain, repair, and replace the same, shall be unconditional, provided prevailing industry construction standards and typical Legal Requirements are met (as have been customary tor the last 20 years).
5. When the actual amount of the average daily sewage flow reaches 80% of maximum treatment capacity of the wastewater System (as then existing) required to EXHIBIT B
provide the then committed Requirements (and notwithstanding actual flows or use
indicators), KIU will take all steps necessary to expand said capacities inin order to provide
for the projected Requirements, as same may change from time to time. KRA may amend
Exhibit C from time to time by submitting new or revised Development Plans and/or
Requirements to KIU.
6. As additional consideration to KIU for entering into this Agreement, I\~AKRA shall
provide additional land to KIU, if required to meet the obligations hereof, at a'price to be
agreed upon, but not to exceed the fair market value of such property at the time of
transfer to KIU. KRA shall have the sole discretion to select the location of any such
property within the Sora Rail Road tract and other areas.
7. As additional consideration for the duties and obligations of KIU herein, KRA agrees
to assist KIU from time to time in securing any necessary financing for the construction of
facilities required by KIU to meet its obligations to expand and/or maintain the System and
to provide the Requirements. This financial assistance may be inin the form of loans,
mortgages, letters of credit, bonds or such other type of credit enhancement as KRA inin its
sole discretion elects.
8. KIU agrees to satisfy all applicable LegalLegai Requirements related to the operation or
maintenance of the System and the supply of the Requirements.
9. As used herein "Legal Requirements" shallshai! mean the requirements, approvals,
consents, permits, licenses and the like which are imposed or required by all applicable laws, ordinances, nules.rules. regulations or conditions of any federal, state, county, city or local government agency or authority, including, without limitation, the South Carolina
Department of Health and Environmental Control and/or PSC.
6 EXHIBIT B
10. The rights, covenants, obligations, duties, benefits, burdens, easements and other
provisions created, declared or contained in this Agreement shall benefit the Property and
bind the KIU Property, respectively, and each owner, purchaser, tenant, invitee,
mortgagee, licensee, user, and lienholder of any part or such portions of the Property or
of the KIU Property and each of their respective successors and assigns, and shall at all
times hereafter be commercially necessary, appurtenant to, affect and run with the land
(i.e., the Property or the KIU Property, respectively) generally. KRA shall have the right to
assign its rights and obligations under this Agreement to its successors-in-interest or successors-in-title.
11. KRA and KIU acknowledge and agree that any failure or refusal of either party
hereto, its successors or assigns, to strictly comply with the terms of this Agreement could
have serious and irreparable consequences to the non-defaulting party. As a result, the
non-defaulting party may elect, upon any such breach, to seek, and is hereby granted the
right, to have specific performance of this Agreement as well as any other legal or
equitable remedy provided by law. In the event of any litigation between KRA and KIU
arising out of breach or enforcement of or emerging from this Agreement, the prevailing
party in such litigation (or appeal therefrom) shall be entitled to reasonable attorney's fees
and all reasonable costs of such action, including the cost of expert witnesses.
12. This Agreement shall commence upon the execution hereof and shall continue in
effect for a period of twenty (20) years hereafter; provided; however, that this Agreement
may be terminated by either party upon the occurrence of a default by the other party in the performance of a material obligation under this Agreement which is not cured within thirty (30) days after written notice of default to such defaulting party, or, if the subject EXHIBIT B
default(s) requires more than thirty (30) days to cure, if the defaulting party fails to begin
performance within such thirty (30) day period and does not diligently and continuously
proceed with such performance until completion.
13. All notices, elections and communications permitted or required hereunder shall be
in writing, signed by the party making the same, and shall be delivered personally or by
registered or certified mail, return receipt requested, to the other parties hereto at the
addresses set forth below their respective signature block. The date of such notice of
communication shall be the date of personal delivery or mailing as the case may be. In the
event any date on which any notice or election is required to be made hereunder falls on
a Saturday, Sunday, or federal holiday, then the date on which notice is required to be
given or made hereunder shall, for all purposes, be deemed to be the next following
business day.
14. All rights and remedies of the parties hereunder shall be cumulative, and none shall
be exclusive of any other, or of any rights and remedies allowed by law, and pursuit of any
one of said rights or remedies does not preclude pursuit of any one or more of such other
rights or remedies.
15. The parties shall cause this Agreement (or a memorandum of agreement evidencing
this Agreement) to be recorded in the Office of the Register of Mesne Conveyances for
Charleston County, South Carolina. The parties shall share any recording fees and other
charges related to such recording.
16. If any term of this Agreement is declared to be illegal or unenforceable, all other terms hereto shall remain in full force and effect. EXHIBIT B
17. No covenant, term or condition hereof shall be deemed waived, except by written
consent of the party against whom the waiver is claimed, and any waiver of the breach of
any covenant, term or condition shall not be deemed to be a waiver of any preceding or
succeeding breach of the same or any other covenant, term or condition of this Agreement.
Acceptance of any performance by a party after the time the same shall have become due
shall not constitute a waiver by the nondefaulting party of the breach or default of any
covenant, term or condition of this Agreement unless otherwise expressly agreed to by the
non-defaulting party in writing.
18. This Agreement, together with any later written modifications or amendments
thereto, shall constitute the entire agreement between the parties with respect to the
subject matter hereof and shall supersede any prior or contemporaneous agreements or
understandings, whether written or oral, which the parties, their agents or representatives
may have had relating to the subject matter hereof. No modification, alteration or waiver of any term, condition or covenant of this Agreement shall be valid unless in writing and signed by both parties hereto.
19. This Agreement is entered into in South Carolina and shall be enforced and construed in accordance with the laws thereof.
20. Time is of the essence with respect to all obligations to be performed by the parties hereunder.
IN WITNESS WHEREOF, Kiawah Resort Associates, L.P., has caused these presents to be executed in its name by its General Partner thereunto duly authorized and its seal to be hereunto affixed, this 4~ day of , in the year of our EXHIBIT B
Lord One Thousand Nine Hundred and Ninety-Seven, in the Two Hundred and Twenty-
First year of the Sovereignty and Independence of the United States of America.
SIGNED, SEALED AND DELIVERED KIAWAH RESORT ASSOCIATES, L.P. IN THE PRESENCE OF: (SEAL) By: D&W Investments, Inc., a South Carolina corporation (CORP. SEAL) 211 King Street, Suite 300 Charleston, SC 29401 Its: General Partner
By: harles P. Darby, Its: President
STATE OF SOUTH CAROLINA ) ) COUNTY OF CHARLESTON )
THE FOREGOING INSTRUMENT was acknowledged before me by Kiawah Resort
Associates, L.P., by DB W Investments, Inc., a South Carolina corporation, its General
Partner, by Charles P. Darby, iii, its President, this fdt day of
1997.
(SEAL)
y commission expires: N- JcP .Dao/
10 EXHIBIT B
KIAWAH ISLAND UTILITY, INC., a South Carolina Corporation (SEAL) P.O. Box 419
Ch I t C 29402
BY
STATE OF SOUTH CAROLINA ) ) PROBATE COUNTY OF CHARLESTON )
PERSONALLY appeared before me the undersigned witness who after first being duly sworn, deposes and says that s/he saw the within-named Kiawah Island Utility, Inc. a South Carolina corporation by Leonard L. Long, Jr., its Vice President, sign, seal and as its act and deed, deliver the within-written Utility Service Agreement for the uses and purposes therein mentioned, and that s/he together with the other witness whose signature appears above, witnessed the execution thereof.
SWORN TO BEFORE ME THIS day of~~, 1997.
My Commission expires
11 EXHIBIT B
Exhibit "A"
Description of KRA's "Property"
All those certain pieces, parcels, and tracts of land situate, lying and being on Kiawah Island, in the County of Charleston, State of South Carolina, presently owned by Kiawah Resort Associates, L.P., having been conveyed to Kiawah Resort Associates, L.P. by (i) deed of conveyance from Kiawah Resort Associates, a South Carolina joint venture dated June 26, 1992, and recorded in Book L215, page 486, in the R.M.C. Office for Charleston County, S.C.; and (ii) deed of conveyance from KRA/Strawmarket, L.P. dated June 26, 1992, and recorded in Book L215, page 455, in said R.M.C. Office, SAVIliIG AND EXCEPTING THEREFROM, all those certain lots, pieces, parcels and tracts of land previously conveyed by Kiawah Resort Associates, L.P. to third parties by deeds of conveyance dated and recorded in said R.lvl.C. Office prior to the date of execution of the within written instrument. EXHIBIT B
"B" EX HI B IT
the "KIU PROPERTY"
All that certain piece, parcel, or tract of land situate, lying and being in the Town of Kiawah Island, Charleston County, South Carolina, known generally as the "Kiawah island Utility tract," containing 16.856 acres, more or less, and shown and designated as" SEWER TREATMENT PLANT KIAWAH ISLAND UTILITY, INC. TMS 209-01-00-120 N127/118 16.856 AC" on a plat prepared by Southeastern Surveying, Inc., entitled "A BOUNDARY LINE
ADJUSTMENT PLAT OF A 16.856 ACRE TRACT OWNED BY KIAWAH ISLAND UTILITY, INC. AND AN 8.015 ACRE TRACT OWNED BY KIAWAH RESORT ASSOCIATES, L.P. AND UTILITY EASEMENTS 'A'ND 'B'OCATED IN THE TOWN OF KIAWAH ISLAND, CHARLESTON COUNTY, SOUTH CAROLINA" dated September 11, 1996, and recorded in Plat Book EB at page 382, in the R.M.C. Office for Charleston County, S.C., said tract having such location, butts and bounds, metes, courses, and distances as will by reference to said plat more fully appear.
ALSO
(yyeJLPurnfLTrac4
All that certain piece, parcel, or tract of land situate, lying and being in the Town of Kiawah Island, Charleston County, South Carolina, known generally as the "Ocean Course Well Pump tract," containing .063 acres, more or less, and shown on a plat prepared by Southeastern Surveying, Inc., entitled "A BOUNDARY SURVEY OF THE WELL PUMP TRACT OWNED BY LANDMARK LAND COMPANY OF CAROLINA, INC. TO BE CONVEYED TO KIAWAH ISLAND UTILITY, INC. LOCATED IN THE TOWN OF KIAWAH ISLAND CHARLESTON COUNTY, SOUTH CAROLINA" dated April 19, 1991, last revised on September 5, 1991, and recorded in Plat Book CE at page 96, in the R.M.C. Office for Charleston County, S.C., said tract having such location, butts and bounds, metes, courses, and distances as will by reference to said plat more fully appear. EXHIBIT B
M H
Incoot l l ecol cn(0ctt Ot O CD O 0 0 0 0 0 0 0 IO I NCD 0 0 O 0 0 ICJ O 0 ID 0 CO CD CO IA CO Ctt W IA 0 tn IA Ot CD O 0 W tlt W ID CD 0 0 0 0 0 0 0
0 IAI 0 0 0 0 0 0 0 0
CD 0 0 0 O 40 O ID O IA 'D CO W t D'4 0 Cl Ctt I IA CD I IQ 0 0 0 0 4 Ctt M Itt
N rt C4 N 0 0 N 0 0 0 0 0 'C4 0 0 0 0 0 0 0 ul CO 0 O CD ID W CO "4 Ot o 4 04 l IA 'D 0 0 0 0 0 0 00 Ul 0 & CO CD BB O. IA hl IA N CL O. O. 0 0 0 0 00 0 cn 00 O 0 0 0 0 0 cD O N O O 0 0 0 N 0 0 0 0 0 0 IO tn N CD 0 0 0 0 0 0 0 0 O Ot O O 0 0 CO ID Dj IO 0 CD N 0 0 0 O O CO 4C CD CO CD IO tA ID 0 0 0 0 D'D l Ot C4
IA IANIO I 0 IA CD ln tn 0 0 0 0 0 0 0 0 tA tn ID 0 0 0 0 0 0 0 0 j cn 0 0 0 C O 0 O O CO O D'A Ot W 04 ID 0 CD N 0 0 0 0 0 ,0 04 C4 0 0 0 0 Z 0 40 CO IO Ut I ID I CD F Z 0 cn IO IA 0 0 I 0 0 0 0 0 UJ 0 O O Vt 0 0 0 0 0 0 0
0 r CD O 40 M IA UJ .'J 6 0 co 0 cn cn tJJ IL W I CO M tn cn IU O 6 Z IA IA N CD 0 m CC UJ 0 05 CY O fu ul CL CL'J 0 I- UJ Z Z 0 vj m tn m vj cn O. 0 O. IU IL Z Z Z Z Z Z Z F Z ul 0 cn 00 00 00 0 0 0 cn 0 UJ 0 H 0 «C & CL O. Z Z UJ cn GU 00 0 0 VJ lj'CC I- Z UJ UJ V3 VJ cn m m vj cn CL CL CL I- I- I- I- Z 0 Z 0 Z Z Z Z cn zz o 0 0 IU UJ UJ lU I JLU UJ
0 0 IU Z CJ o Z lU 'n Zg% LU m cn «0 UJ ut muJ CL LL UJ UJ LU I- 03 tn 0 CL' CC UJ I- LU cn Z CL'L XCL 0 Uj UJ cn Z UJ UJ I- I- mIU m I- i-cni 50 O' 0 g 3 o o Hj &. Z Z CC Z Z yLUJ Q 0 0 0 0 & o & 5 0 & co Oa 0 aa 0 Z 3 CL'L a 0 0 m 0 0 Z 0 0 z =I -J UI UJ IL UJ UJ QUJUI m 0 o UJÃZmoam$ crzocuam 2 0 UJ ace m IU O. O. Q cn UJ
ocncctumm UJ & o UJ CC CL'J UJ ya CC CC O. Z Cy' Z lu LU &Z 0 Z Vj CC CY Cn IL H lu 0 & lL Z IU IU tu IJJ UJ uj IU IU m I™ uJ 0 uj 0 0 IU I— & IU UJ tn IU CC I- 0 o tu UJ 0&me LUgy p Q KH IUm93 ~ 0 Z 0 a 0 L'I 0 C O'Hm 0 tu uJ & Z & ~ 0 & I- I- O 0 o HQ & lu ~oa cn 0 0 Cn tL' 0 & & T Cn ~ & CL n. o VJ 03 &+j z m 0 O cn & U.l u 00 o cn 0 0 tn 0 & cn 0 Vj 0, 2 ut iu o EXHIBIT C EXHIBIT C EXHIBIT C
0 0 IO 0 u'I 0 n IO m 0 0 0 C IL 0 0 8 8' 0. I 0 0 0 0 n 0, Ol I D n 0 9 0 0 0 0 0 8 flf 0 n'g 0 0 Cl 0 8 0. gI Iff 0 g I 0 0 0 ID IO 0 Zl 0. 8 0. 0' f0 08 I 0
ff
n 8 8
0 0 0 ff I I f I 4 4
0,8 I U UA I 88 8
0
OU 0 0 88 0
U 4,$ 0,8 hB 4 I I.: U 4 O 0 88 8888 0 IU
m ff!5 0' 0 8
I' m[8 8 0 jr 0 88 8
f' EXHIBIT C
STATE OF SOUTH CAROLINA ) BKL OF SAM ) FOR COUNTY OF CHARLESTON ) WATER AND WASTEWATER FACILITIES (Donated Lines - 2005)
FOR/AND in consideration of the sum of Five and No/100 ($5.00) Dollars, tbe receipt and sufficiency of which is hereby acknowledged, KIAWAH RESORT ASSOCIATES, L.P. (a Delaware limited partnership hereinafter sometimes referred to as the "Seller") hereby transfers, assigns, conveys, confirms, ratifies and sets over unto KIAWAH ISLAND UTILITY, INC. (a South Carolina corporation hereinafter sometimes referred to as the "Buyer") all of its right, title and interest in and to all those mains, valves, hydrants and other items of personal property "A" described on Exhibit attached hereto and incorporated herein by reference (collectively, the "Property,") TO HAVE AND TO HOLD, all and singular, the Property unto the Buyer and its successors and assigns, to its and their own use and behoof forever.
EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, THE BUYER AND THE SELLER AGREE THAT THE PROPERTY WILL BE SOLD AND DELIVERED TO BUYER "AS IS" AND "WHERE IS," AND WITHOUT ANY REPRESENTATION, GUARANTEE OR WARRANTY OF SELLER, EXPRESS OR IMPLIED& OF ANY KIND& ARISING BY LAW OR OTHERWISE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SELLER SPECIFICALLY DISCLAIMS AND EXCI UDKS HEREFROM (i) ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; (ii) ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY OF FREEDOM FROM ANY RIGHTFUL CLAIM BY WAY OF INFRINGEMENT OR THE LIKE; (iii) ANY IMPLIED REPRESENTATION OR WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE; AND (iv) ANY OBLIGATION OR LIABILITY OF SELLER ARISING IN TORT, WHETHER OR NOT ARISING FROM THE NEGLIGENCE OF SEI LER, ACTUAL OR IMPUTED, OR IN STRICT LIABILITY, INCLUDING ANY OBLIGATION OR LIABILITY FOR LOSS OF USK, REVENUE OR PROFIT WITH RESPECT TO THE KQUIPMKNT OR FOR ANY LIABILITY OF BUYER TO ANY THIRD PARTY OR ANY OTHER DIRECT INCIDENTAl OR CONSEQUENTIAL DAMAGE.
And for the consideration aforesaid, the Seller hereby appoints the Buyer„ its successors and assigns, its true and lawful attorneys, with full power of substitution in its name or otherwise to demand, collect„sue upon, receipt for and otherwise dispose of or deal with the Property.
Seller further covenants and agrees with the Buyer that it will, from time to time, at the request of the Buyer, execute and deliver or cause to be executed and debvered all such further bills of sale, assignments, instruments of transfer and agreements as may be reasonably required by the Buyer in order to more effectually vest title in the Buyer to the Property hereby conveyed or intended hereby to be conveyed. EXHIBIT C
IN WITNESS WHEREOF, Kiawah Resort Associates, L,P,, has caused these presents to be executed in its name by its General Partners thereunto duly authorized, and its seal to be hereunto affixed, this 17th day of August, 2005.
SIGNED, SEALED AND DELIVERED KIAWAH RESORT ASSOCIATES, L.P. IN THE PRESENCE OF: (SEAL)
By: D&W Investments, Inc., a South Carolina corporation (CORP.SEAL) Its: Ge IP
By: Charles P. Darby, HI Its: President
By: TWD Investments, LLC a South Carolina limited liability company (SEAI.) Its: General Partner
By: Charles P. Darby, III Its: Manager EXHIBIT C EXHIBIT C
STATE OF SOUTH CAROLINA ) BILL OF SALK ) FOR COUNTY OF CHARLESTON ) WASTEWATER FACII ITIKS (Purchased Lines-2005)
FOR/AND in consideration of the sum of Three Hundred Eighty Two Thousand Six Hundred Sixty Six and Noi100 ($382,666.00) Dollars, the receipt and sufficiency of which is hereby acknowledged, KIAWAH RESORT ASSOCIATES, L.P. {a Delaware limited partnership hereinafter sometimes referred to as the "Seller") hereby transfers, assigns, conveys, confirms, ratifies and sets over unto KIAWAH ISLAND UTH.ITY, INC. (a South Carolina corporation hereinafter sometimes referred to as the "Buyer") all of its right, title and interest in and to all those mains and other items of personal property described on Exhibit "A" attached hereto and incorporated herein by reference {collectively, the "Property, ") TO HAVE AND TO HOLD, all and singular, the Property unto the Buyer and its successors and assigns, to its and their own use and behoof forever.
EXCEPT AS OTHERWISK EXPRESSLY SET FORTH HEREIN, THE BUYER AND THE SELLER AGREE THAT THK PROPERTY WILL BK SOLD AND DELIVERED TO BUYER "AS IS" AND "WHERE IS," AND WITHOUT ANY REPRESENTATION, GUARANTEE OR WARRANTY OF SELLER, EXPRESS OR IMPLIED, OF ANY KIND, ARISING BY LAW OR OTHERWISE. WITHOUT LIMITING THK GENERALITY OF THE FOREGOING, SELLER SPECIFICALLY DISCLAIMS AND EXCLUDES HEREFROM (i) ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY OF MERCIS&KABILITY OR FITNESS FOR A PARTICULAR PURPOSE; (ii) ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY OF FREEDOM FROM ANY RIGHTFUL CLAIM BY WAY OF INFRINGEMENT OR THE LIKE; {iii) ANY IMPLIED REPRESENTATION OR WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE; AND (iv) ANY OBLIGATION OR LIABILITY OF SELLER ARISING IN TORT, WHETHER OR NOT ARISING FROM THE NEGLIGENCE OF SELLER, ACTUAL OR IMPUTED, OR IN STRICT LIABILITY, INCI UDING ANY OBLIGATION OR I,IABILITY FOR I OSS OF USE, REVENUE OR PROFIT WITH RESPECT TO THE EQUIPMENT OR FOR ANY I IABILITY OF BUYER TO ANY THIRD PARTY OR ANY OTHER DIRECT INCIDENTAL OR CONSEQUENTIAL DAMAGE.
And for the consideration aforesaid, the Seller hereby appoints the Buyer, its successors and assigns, its true and lawful attorneys, with full power of substitution in its name or otherwise to demand, collect, sue upon, receipt for and otherwise dispose of or deal with the Property.
Seller further covenants and agrees with the Buyer that it will, from time to time, at the request of the Buyer, execute and deliver or cause to be executed and delivered all such further bills of sale, assignments, instruments of transfer and agreements as may be reasonably required by the Buyer in order to more effectually vest title in the Buyer to the Property hereby conveyed or intended hereby to be conveyed. EXHIBIT C
IN WITNESS WHEREOF, Kiawah Resort Associates, L.P., has caused these presents to be executed in its name by its General Partners thereunto duly authorized, and its seal to be hereunto affixed, this 17th day of August, 2005.
SIGNED, SEALED AND DELIVERED KIAWAH RESORT ASSOCIATES, L.P. IN THE PRESENCE OF: (SEAL)
By: D&W Investments, Inc., a South Carolina corporation (CORP. SEAI.) Its: Ge I P
By: Charles P. Darby, III Its: President
By: TWD Investments, LLC a South Carolina limited liability company (SEAL) Its:
By: Charles P. Darby, III Its: Manager EXHIBIT C