XXXXXXX COUNTY PUBLIC SERVICE DISTRICT
AND
MOUNTAINEER PARK, INC.
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SEWER FACILITIES USER AGREEMENT
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Dates as of December 30, 1998
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.1 Definitions 4
ARTICLE II
OPERATING PROVISIONS
Section 2.1 Acquisition and Construction of Project 5
Section 2.2 Reserved Capacity; Other Users 5
Section 2.3 Measurement 6
Section 2.4 Authorization 6
Section 2.5 Reduction of Treatment: Notices 6
Section 2.6 Disputes 6
ARTICLE III
USER FEE PROVISIONS
Section 3.1 User Fee Payments 6
Section 3.2 Supporting Schedules 7
Section 3.3 Obligations of Company Unconditional 7
ARTICLE IV
SPECIAL COVENANTS; MAINTENANCE AND MODIFICATION
Section 4.1 Limitation of Liability of Town 8
Section 4.2 Further Assurances and Corrective
Instruments 8
Section 4.3 Maintenance and Modification of System 8
Section 4.4 Books and Records 8
ARTICLE V
TERM
Section 5.1 Term of Agreement 8
ARTICLE VI
INDEMNIFICATION; ASSIGNMENT
Section 6.1 Indemnification Covenants 9
Section 6.2 Assignment 9
ARTICLE VII
DEFAULTS AND REMEDIES
Section 7.1 Defaults Defined 9
Section 7.2 Remedies on Default 10
Section 7.3 Delay or Omission 10
Section 7.4 No Additional Waiver Implied by One Waiver 10
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Notices 10
Section 8.2 Severability 11
Section 8.3 Amendments 11
Section 8.4 Execution in Counterparts 11
Section 8.5 Applicable Law 11
Section 8.6 Captions 11
SIGNATURES 11
SEWER FACILITIES USER AGREEMENT
This SEWER FACILITIES USER AGREEMENT, dated as of December 30, 1998,
between the XXXXXXX COUNTY PUBLIC SERVICE DISTRICT, a public service district
located in Xxxxxxx County, West Virginia (the "District") and MOUNTAINEER PARK,
INC., a West Virginia corporation (the "Company");
WITNESSETH:
WHEREAS, the Company desires to obtain sewage collection and disposal
services to service its facilities located at the Mountaineer Race Track and
Gaming Resort, located in Xxxxxxx County, West Virginia (the "Facility") and the
District has agreed to provide sanitary and sewage collection, treatment and
disposal services to the Facility;
WHEREAS, the District is authorized and empowered to acquire, construct,
maintain and improve sewage treatment and disposal systems, collection lines and
all necessary appurtenant facilities, and to accept grants, borrow money and
issue revenue bonds payable from the revenues of such sewage systems;
WHEREAS, the District has determined, through its Governing Body, as
hereinafter defined, that it is necessary and desirable to establish certain new
sewage collection, treatment and disposal facilities, consisting of a new sewage
treatment plant, collection lines and system, 0.300 MGD sequenting batch reactor
("SBR") and all necessary appurtenances (the "Project");
WHEREAS, the Company has agreed to make certain payments to the District in
exchange for the sewage services provided by the District, as hereinafter
described;
WHEREAS, the Company and the District have agreed to establish their
respective obligations pursuant to the terms and conditions set forth in this
Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
hereinafter contained, the parties agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITIONS. If not otherwise defined herein all
capitalized, undefined terms used herein shall have the following meanings:
"Agreement" means this Sewer Facilities User Agreement and any amendments
and supplements thereto.
"Bond Ordinance" means collectively, the ordinances or resolutions of the
District which may be adopted from time to time, authorizing issuance of bonds,
notes or other
obligations to finance acquisitions and construction of the Project and any
additions thereto, as supplemented or amended.
"Business Day" means a day, other than Saturday or Sunday or any legal
holiday.
"Company" means (i) Mountaineer Park, Inc., which owns and operated the
Mountaineer Race Track and Gaming Resort located in Xxxxxxx County, West
Virginia and (ii) any surviving, resulting, or transferee entity.
"Default" means any Default under this Agreement as specified in and
defined by Section 6.1 hereof.
"District" means the Xxxxxxx County Public Service District, a public
service district organized and existing under the laws of the State of West
Virginia.
"Facility" has the meaning set out in the preambles hereto.
"Fiscal Year" means the fiscal year of the District, which begins on July 1
of each year and ends on June 30 of the following year.
"Governing Body" means the Board of the District.
"Project Operation Costs" shall mean the total sum of all costs associated
with the operation and maintenance of the Project during a twelve month period
of operation, including but not limited to all costs associated with the
operation, maintenance and repair of the treatment plant, pump stations, piping,
equipment, facilities, all appurtenances related thereto, together with all
administrative costs, bond payments, engineering costs, legal costs, accounting
costs and costs of billing; provided, however, that all user fees received from
any customer other than the Company served by the Project during the same twelve
month period of operation shall be deducted therefrom.
"State" means the State of West Virginia.
ARTICLE II
OPERATING PROVISIONS
SECTION 2.1 ACQUISITION AND CONSTRUCTION OF THE PROJECT. The District
shall use its best efforts to acquire, construct and install the Project by
December 31, 1999. Provided that there shall be no penalty to the District if
the Project is not completed by said date. The District shall operate, maintain
and manage the Project and shall reserve adequate capacity to provide treatment
of all Company's sanitary sewage which is required in order to meet all federal,
State and local effluent requirements now or hereafter in effect.
SECTION 2.2 RESERVED CAPACITY; OTHER USERS. During the Term of this
Agreement the District agrees to reserve for the Company's exclusive use not
less than 200,000 gallons per day of the total capacity of the Project (300,000
gallons per day). The excess (approximately 100,000 gallons per day) may be
utilized by the Company or other industrial, commercial or residential users on
a first come/first served basis. Other industrial, commercial and residential
users may be connected to and served by the Project provided that (a) such
service does not in any way adversely affect service to the
Facility as provided herein and (b) such residential, industrial, and commercial
users are required to pay the rates and charges for residential, industrial, and
commercial customers as established and approved from time to time for use by
the District.
SECTION 2.3 MEASUREMENT OF VOLUME. The District may, in its discretion
and with such frequency as it may deem necessary, measure the volume of the
facility's sewage.
SECTION 2.4 AUTHORIZATION. The District will obtain, at its expense, all
permits, authorizations and approvals which may be required by any local, State
or federal regulatory bodies in order for the District to accomplish its
obligations hereunder.
SECTION 2.5 REDUCTION OF TREATMENT SERVICES; NOTICES. The District may
reduce the volume of the Company's sewage treated or cease treatment altogether
if, in the District's determination, there are matters impacting maintenance,
safety, health and human welfare and, in that case, only for as long as
absolutely necessary to repair the System and restore operation and/or full
capacity using the Districts best efforts and upon due notice to the Company.
SECTION 2.6 DISPUTES. The District and the Company will negotiate in
good faith to attempt to resolve any dispute which may arise over the
interpretation of the terms of this Agreement or any circumstance which is not
covered by the terms of this Agreement. In the event that the parties are
unable to negotiate a resolution of any dispute over the interpretation of this
Agreement (other than a dispute involving payment of damages or other matters
not within the jurisdiction of the Commission) or in the event of a disagreement
over the appropriate level of rates and charges to be imposed on the Company by
the District, the parties agree that either party shall have the right to
petition the Public Service Commission of West Virginia (the "Commission") to
hear and resolve that dispute or fix the appropriate level of rates and charges.
The District and the Company agree that with respect to those disputes and
disagreements described above over which the Commission has jurisdiction, the
submission of such disputes and disagreements to the Commission shall be the
sole and exclusive method for resolving such disputes and disagreements;
PROVIDED, HOWEVER that either party shall be permitted to appeal any action
taken by the Commission in accordance with West Virginia law.
ARTICLE III
USER FEE PROVISION
SECTION 3.1 USER FEE PAYMENTS. During the Term of this Agreement, in
exchange for the services provided by the District, the Company covenants and
agrees that it will pay to the District, or to such designee as appointed by
written notice of the District, a user fee which is based upon and equal to the
District's annual Project Operation Costs for the Project. The user fee shall
be paid by the Company each month in which it receives services from the
District, and the amount of the monthly user fee shall be determined and paid in
the following manner:
(a) It is the express intent of the parties that the user fee paid
by the Company to the District shall be equal to the Project Operation
Costs for each year or month or portion thereof during which the
District provides the services contemplated by this Agreement to the
Company.
(b) At least thirty days prior to the beginning of operation of the
Project, the District shall estimate the Project Operation Costs for
the first twelve months of operation. The monthly fee paid by the
Company to the District during the first twelve months of operation
shall be equal to one-twelfth of the estimated Project Operation Costs
for the first twelve months of operation. Each monthly fee shall be
paid to the District on the first business day of each month.
(c) Within thirty days after the expiration of the first twelve
months of the operation of the Project, the District shall calculate
the actual Project Operation Costs for the first twelve month period
of operation. In the event that the actual Project Operation Costs
exceed the amounts paid by the Company to the District during the
first twelve months of operation, then the Company shall pay to the
District an additional user fee equal to the difference between the
actual Project Operation Costs and the amount of user fee paid by the
Company to the District during the first twelve months of operation.
In the event that the actual Project Operation Costs are less than the
amounts paid by the Company to the District during the first twelve
months of operation, then the District shall afford the Company a
credit for such difference to be applied toward future monthly user
fee payments.
(d) At least thirty days prior to the expiration of the first twelve
months of the operation of the Project, and annually thereafter, the
District shall estimate the anticipated Project Operation Costs for
the next succeeding twelve month period of operation. The monthly fee
paid by the Company to the District during each next succeeding twelve
months of operation shall be equal to one-twelfth of the estimated
Project Operation Costs for the same twelve month period. Each monthly
fee shall be paid to the District on the first business day of each
month.
(e) Within thirty days after the expiration of each twelve month
period of the operation of the Project, the District shall calculate
the actual Project Operation Costs for the preceding twelve month
period of operation. In the event that it is determined that the
actual Project Operation Costs have exceeded the amounts paid by the
Company to the District during the preceding twelve month period of
operation, then the Company shall pay to the District an additional
user fee equal to the difference between the actual Project Operation
Costs and the amount of user fee paid by the Company to the District
during the same twelve months of operation. In the event that the
actual Project Operation Costs are determined to be less than the
amounts paid by the Company to the District during the preceding
twelve month period of operation, then the District shall afford the
Company a credit for such difference to be applied toward future
monthly user fee payments.
SECTION 3.2 SUPPORTING SCHEDULES. The District shall deliver to the
Company within ten days after the District has calculated the same, all
estimated Project Operation Costs and all actual Project Operation Costs.
SECTION 3.3 OBLIGATIONS OF COMPANY UNCONDITIONAL. Notwithstanding
anything to the contrary contained herein, the obligations of the Company to
make the payments required in Section 3.1 shall be absolute and unconditional
and shall not be subject to any defense whatsoever or any right of setoff,
counterclaim or recoupment, including, without limitation (a) any defense or
claim based on breach or nonperformance by the District of its obligations set
forth in this Agreement, (b) the invalidation or unenforceability of this
Agreementwith respect to the District or the Company, or (c) the inability of
the Company to utilize the service of the Project due to a force majeure
impossibility or any other reason whatsoever. Nothing contained in this Section
shall be construed to release the District from the performance of any of the
agreements on its part herein contained, and in the event the District should
fail to perform any such agreement on its part, the Company may institute such
action against the District as the Company may deem necessary to compel
performance so long as such action or any remedies sought or obtained therein
does not abrogate the obligations of the Company contained in the first sentence
of this Section.
ARTICLE IV
SPECIAL COVENANTS; MAINTENANCE AND MODIFICATION
SECTION 4.1 LIMITATION OF LIABILITY OF DISTRICT. The District shall
not be liable to the Company if for any reason the District cannot provide the
sewage treatment and disposal services contemplated by this Agreement. Any
monetary obligation of the District which may be created by or arise out of this
Agreement shall never constitute a general obligation of or a pledge of the
faith and credit or taxing power of the District, but shall be payable solely
from the revenues of the System.
SECTION 4.2 FURTHER ASSURANCES AND CORRECTIVE INSTRUMENTS. The
District and the Company agree that they will, from time to time, acknowledge
and deliver or cause to be executed, acknowledged and delivered, such
supplements or amendments hereto and such further instruments as may be
reasonably required for carrying out the expressed intention of this Agreement.
SECTION 4.3 MAINTENANCE AND MODIFICATIONS OF SYSTEM. The District
agrees during the Term of Agreement it will (i) keep the System in as reasonably
safe condition as its operations shall permit, (ii) keep the System in good
repair and in good operating condition, making from time to time all necessary
repairs thereto (including external and structural repairs) and renewals and
replacements thereof, and (iii) develop and implement methods to reduce costs of
operating and maintaining the System.
SECTION 4.4 BOOKS AND RECORDS. The District shall keep accurate
financial books and records, in accordance with generally accepted accounting
principles. At the request of the Company, the District shall make such books
and records available for inspection by the Company or its representatives
during normal business hours within two Business Days of such requests.
ARTICLE V
TERM AND RIGHT TO TERMINATE
SECTION 5.1 TERM OF AGREEMENT. This Agreement shall remain in full
force and effect from the date hereof to and including _______________________,
unless otherwise terminated as herein provided. The District shall exert its
best efforts to complete the project in a timely fashion.
ARTICLE VI
INDEMNIFICATION; ASSIGNMENT
SECTION 6.1 INDEMNIFICATION COVENANTS.
(a) The indemnification of the District by the Company shall be
limited to circumstances created by a breach of the Agreement by the
Company. Under no circumstances shall the Company indemnify the
District for claims against the District relating to their operation
and maintenance of the System and for claims arising from third party
use of the System permitted and regulated by the District.
(b) If any action shall be brought against the District in respect
of which indemnity hereunder may be sought against the Company, then
the District, shall promptly notify the Company in writing, and the
Company at its option may, at the request of the District, provide
legal representation to the District and legal proceedings. If the
Company assumes the defense thereof, the District shall have the right
to employ separate counsel in any such action and to participate in
the defense thereof, provided that the fees and expenses of such
counsel shall be at the expense of the District unless the employment
of such counsel has been authorized in writing by the Company. The
Company shall not be liable for any settlement of any such action
effected without its consent.
SECTION 6.2 ASSIGNMENT. The parties hereto agree that the District
may, in its sole discretion, assign all of the District's right, title, and
interest in and to this Agreement, to any trustee, person or entity as security
for Financing Costs. Any representations made by the Company in connection with
such financing shall be deemed to be part of this Agreement.
ARTICLE VII
DEFAULTS AND REMEDIES
SECTION 7.1 DEFAULTS DEFINED. The term "Default" shall mean, whenever
it is used in this Agreement, any one or more of the following events:
(a) Failure by the Company to pay any amount required to be paid
under Section 3.1 hereof when due.
(b) Failure by either party to observe and perform any material
covenant, condition or agreement on its part to be observed or
performed, other than as referred to in Section 6.1(a) hereof or as
prevented by reason of force majeure as defined hereunder, for a
period of thirty (30) Business Days after written notice specifying
such failure and requesting that it be remedied shall have been given
to the other party, unless the District or Company shall agree in
writing to an extension of such time prior to its expiration or such
notice is
rescinded; provided, however, if the failure stated in the notice
cannot be corrected within the applicable period, neither the District
nor the Company will unreasonably withhold its consent to an extension
of such time if corrective action is instituted by the other party
within the applicable period and diligently pursued until such failure
is corrected and if a representative of the party delivers certificate
to the other party designating the date by which such failure is
expected to be corrected.
SECTION 7.2 REMEDIES FOR DISPUTE OR DEFAULTS.
Whenever any dispute arises under this Agreement or a Default of this
Agreement occurs and shall not cured as may be provided herein, the parties
shall attempt to resolve the dispute or default in good faith. In the event
that the parties are unable to resolve the matter, the matter shall be submitted
to the West Virginia Public Service Commission for resolution. In the event
that the Public Service Commission refuses to exercise jurisdiction over the
matter, the parties shall be entitled to take any action at law or equity which
may appear necessary or desirable to resolve the dispute or default.
SECTION 7.3 DELAY OR OMISSION. No delay or omission to exercise any
right or power accruing upon any Default shall impair any such right or power or
shall be construed to be a waiver thereof, but any such right or power may be
exercised from time to time and as often as may be deemed expedient. In order
to entitle either party to exercise any remedy reserved to it in this Article,
it shall not be necessary to give any notice, other than such notice as may be
required in this Article.
SECTION 7.4 NO ADDITIONAL WAIVER IMPLIED BY ONE WAIVER. In the event
any agreement contained in this Agreement should be breached by either party and
thereafter waived by the other party, such waiver shall be limited to the
particular breach so waived and shall not be deemed to waive any other breach
hereunder.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1 NOTICES. All notices, certificates or other communications
hereunder shall be sufficiently given and shall be deemed given when delivered
or mailed by registered mail, postage prepaid, addressed as follows:
IF TO THE DISTRICT:
Xxx X. Xxxxxx, Chairman
Xxxxxxx County Public Service District
X.X. Xxx 000
Xxx Xxxxxxxxxx, XX 00000
IF TO THE COMPANY:
Xxxxx X. Xxxxxxxx, President
Mountaineer Race Track and Gaming Resort
Xxxxx Xxxxx 0
X.X. Xxx 000
Xxxxxxx, XX 00000
The District and Company may, by written notice given hereunder, designate any
further or different addresses or addresses to which subsequent notices,
certificates or other communications shall be sent.
SECTION 8.2 SEVERABILITY. In the event any provision of this Agreement
shall be held invalid or unenforceable by the Commission or any court of
competent jurisdiction, such holding shall not invalidate or render
unenforceable any other provision hereon.
SECTION 8.3 AMENDMENTS. This Agreement may be amended and
supplemented at any time by mutual consent of the parties hereto, subject to any
approvals which may be required by the laws of the State and the rules and
regulations of the Commission.
SECTION 8.4 EXECUTION IN COUNTERPARTS. This Agreement may be
simultaneously executed in several counterparts, each of which shall be an
original and all of which shall constitute but one and the same instrument.
SECTION 8.5 APPLICABLE LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State.
SECTION 8.6 CAPTIONS. The captions and headings in this Agreement are
for convenience only and in no way define, limit or describe the scope or intent
of any provisions or Sections of this Agreement.
IN WITNESS WHEREOF, the District has caused this Agreement to be executed in its
name and the Company has caused this Agreement to be executed in its name all as
of the date first above written.
XXXXXXX COUNTY PUBLIC
SERVICE DISTRICT
By: /s/
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Its Chairman
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MOUNTAINEER PARK, INC.
By: /s/ XXXXX X. XXXXXXXX
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Its President
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