HomeMy WebLinkAboutItem III (B) Approval and Authorization for Mayor and City Clerk to Execute the Developer's Agreement for Water Service for Albertson's, Inc AGENDA 4-20-93
Item III B
"CENTER OF GOOD LIVING-PRIDE OF WEST ORANGE" • --�-- -- -•••w•--•�•-
Ocoee S.SCOTT VANDERGRIFT
61/4( COMMISSIONERS
CITY OF OCOEE RUSTY JOHNSON
�. 150 N.LAKESHORE DRIVE PAUL W.FOSTER
v O OCOEE,FLORIDA 34761 VERN COMBS
e ? (407)656-2322 SAM WOODSON
04/
�f GOO CITY MANAGER
ELLIS SHAPIRO
MEMORANDUM
TO: The Honorable Mayor and Board of City Commissioners
FROM: Montye Beamer, Director of Administrative Services `7'j
DATE: April 15, 1993
SUBJECT: DEVELOPER'S AGREEMENT FOR WATER SERVICE,
ALBERTSON'S, INC.
In January, 1993, a default of pre-sold water capacity put 400 ERU's into an uncommitted, yet
advertised category. For its current development, Albertson's, Inc. requires 13.84 water ERU's
and has executed the attached developer's agreement for water service.
Staff recommends approval since this agreement is the same as those signed during the capacity
sale and since payment has been received. The City Attorney has approved the use of this
document.
ACTION REQUESTED
The Mayor and Board of City Commissioners (1) approve the Developer's Agreement for Water
Service with Albertson's, Inc. and (2) authorize the Mayor and City Clerk to execute.
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prJFI,OPER'S AGREEMENT rqT WATER SERVICE
THIS DEVELOPER'S AGREEMENT TOR WATER SERVICE is made
as of the day Of , 1993, by and between the CITY OF
OCOEE (hereinafter referred to as the "Utility") , trnd •
ALBERTSON'S. INC. , a fl laware corporation.
R E C I T A J1, S
1. The Developer owns certain property located in
orange County, Florida, more particularly described in Exhibit "A,"
attached to and by this reference made a part hereof. Said
Property is hereafter referred to as the "Property" or the
"Developer's Property."
7_ The Developer has constructed or will construct
certain improvements on its Property which require or will require
substantial Water Service Capacity. Said improvements shall
hereafter be referred to in the aggregate as the "improvements. "
3. Water service Capacity for the Improvements shall be
provided in the manner described below and subject to the terms and
conditions provided herein.
4. The Utility is willing to provide Water Service
Capacity to the Developer in accordance with and subject to the
terms and conditions of this Agreement and applicable rules,
regulations, laws and requirements.
5. The Developer requires and relies on Water service
Capacity and other public services from. the Utility in order to
develop its respective property.
6. The Utility and the Developer hereby acknowledge and
warrant to each other that this Agreement and any future acts as
required hereby are binding and enforceable on the Utility and the
Developer in accordance with their terms.
ACCORDINGLY, in consideration of the Recitals hereof, for
and in consideration of the mutual undertakings and agreements
herein contained and assumed, and other good and valuable
considerations received by each party from the ether, the receipt
and sufficiency of which are hereby acknowledged, the parties
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hereto do hereby agree as follows:
SECTION 1. RSCITALS. The above recitals are true and
correct, and form a material part of this Agreement.
SECTION 2. PEFINITXONS. The parties agree that in
construing this Agreement, the definitions in Chapter 22 of the
Ocoee Code of Ordinances shall apply and the following words,
phrases, and terms shall have the following meanings unless the
context requires otherwise:
2.1 "Agreement" means this Developer's Agreement, as it
may be amended from time to time.
2.2 "Customer Installation" means all Sewage Facilities
on the customer's side of the Point of Connection.
2.3 "Off-Bite Facilities" means the Collection
Faeilitiee and Transmission Facilities used to provide Water
Service to a Developer's Property but not located on that
Developer's Property.
2.4 "On-Bite Facilities" means that portion of the
Collection Facilities used to provide Water service to w
Developer's Property and located within the Developer's Property.
2.5 "Point of Connection" means the point on the Primary
Interceptor Force Main chosen by the Utility for the connection by
the Collection Facilities on the Developer's Property.
2.6 "Treatment Facilities" means those Sewage Facilities
used for the treatment and disposal of Sewage in accordance with
applicable governmental rules and regulations.
2.7 "Utility" means the CITY OF OCOEB, its successors or
assigns.
2.6 "Utility's System" means all Sewage Facilities and
interests in real or personal property owned, operated, managed or
controlled by the Utility now and in the future and used to provide
Water Service to existing and future customers.
SECTION 3. DESIGN CONSTRUCTION AND OPERATION OF ON-
SITE FACILITSEs. The Developer agrees as a condition precedent to
its receipt of Water Service Capacity to do the following:
3.1 Design of On-Site Facilities. The Developer shal ,
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at its expense, cause its own Florida registered professional
engineer to design and produce and submit in writing to the Utility
for its review, and approval or rejection prior to construction,
graphic Plans and Specifications for the construction of the On-
Site Facilities to be located on that Developer's Property. Said
Plana and Specifications may be limited to the first Phase only,
and Plans and Specifications for aubamquent Phases may he furnished
from time to time. The Developer may modify its Plans and
Specifications at any time with the consent of the Utility, which
consent shall not unreasonably be withheld, provided such
modification dose not unduly interfere with existing facilities or
commitments and is otherwise consistent with the ordinances and
resolutions of the City Commission of the City of Ocoee and the
Utility Tariff. In the event that a Developer requests a
mudificdLiun in its Plans and SpeoificaLions which would result in
an ins ease in the Weler• Ser•viue CdpeciLy needed for the
DevelupmenL, the ULlliLy may snow Lite modification, deny the
modification, or require the Developer to enter into a new
Developer's Agreement containing such terms and conditions as the
Utility may require. In the event the Developer is required to
enter into a new Developer's Agreement under this paragraph such
new Agreement with regard to any prior held Water Service Capacity
shall be identical to this Agreement in all respects with regard to
the prior held Water Service Capacity. Any new Water Service
Capacity shall be governed by the then existing and applicable
rates and regulations of the Utility.
3.2 Approval of Plane and Specifications for on-Site
facilities. The Utility shall review, and reject or approve, any
such Plans and Specifications submitted pursuant to Subsection 3.1
hereof. The engineers of a Developer submitting such Pians and
SpecifinAtinnm shall make cnrrmrtions or modifications to any
portion of the Plans and Specifications which are unacceptable to
the Utility at the Developer's expense, and shall resubmit the
corrected or modified Plans and Specifications to the Utility for
further review until the Utility shall have approved the Plano and
Specifications. The Utility's determination that such Plans and
Specifications are unacceptable shall not be made arbitrarily or
capriciously. The Plans and Specifications shall be valid for one
year from the date of approval by the Utility; provided that an
extension of time may be granted by the Utility if the Developer is
proceeding in good faith and presents reasonable grounds for an
extension of time.
3.3 Permitting. Each Developer shall, at its expense,
obtain all necessary state and local permits or approvals required
for the construction of the On-Site Facilities to be constructed
upon that Developer's Property pursuant to this Agreement. , Each
Developer shall send written copies of all permit applications
filed with state or local governmental entities to the Utility, and
shall also provide the Utility with copies of all written permits,
approvals, requests for additional information, or denials received
by the Developer in connection with such permit applications.
3.4 g not;cation of On-Site Facilities. After the
Utility approves the Plans and Specifications for any phase or
portion of the On-Site Facilities submitted by the Developer upon
whose property the On-Site Facilities are to be located, that
Developer shall, at its own expense, construct and install that
phase or portion of the On-Sits Facilitisa An the same aredepicted
in the Utility-approved Plans and Specifications therefor. Each
Developer warrants that the On-Site Facilities to be constructed by
it pursuant to this Agreement shall be constructed in accordance
with the Utility-approved Plans and Specifications, and also in
accordance with all other applicable federal, state and local laws,
regulations, rules and ordinances. The Developer shall provide the
Utility thirty days notice prior to initiation of construction of
each phase or portion of the On-Site Facilities. All construction
of the On-Site Facilities to be constructed or installed by the
Developers hereunder shall be done by contractors approved in
advance by the Utility as competent to perform arch work. The
Utility's approval of such contractors ahall not be unreaconahly
withheld.
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3.5 inspection, Testing and Approval of Cvnetructioh.
During the construction of on-Site Facilities by a Developer, t1sn
utility shall have the Continuing right to inspect such
installations to determine compliance with the Plans and
Specifications for said facilities. The Utility shall control the
quality of the installation, and further, shall be entitled to
perform standard tests for pressure, infiltration, exfiltration,
line and grade, and all other normal engineering tests to determine
that the system has been installed in accordance with the Plans and
Specifications and good engineering practices. Each Developer
agrees to pay to the Utility, or the Utility's authorized agent, a
reasonable sum to cover the cost of inspection of installations
made by that Developer or its contractor, which charge shall be as
provided in Subsection 6.2 hereof.
3.6 'Lcaeotanwe and Conveyance of Dedication of
Facilities anti basements.
(1) The Developer agrees that after completion of
construction and prior to acceptance or approval of such Facilities
by the Utility, the Developer constructing or installing such
Facilities shall furnish to the Utility one set of Mylar "as-built"
drawing showing specifications, locations, depth and other
appropriate detail of all sewage facilities as located by a
licensed surveyor along with three prints of the "as-built"
drawings which have been sealed by the surveyor and certified by
the engineer of record. In addition, each Developer will provide
the Utility with three sets of all appropriate manuals for
operation of any pumping stations and other mechanical and
electrical equipment installed by that Developer, as applicable.
In addition, each Developer will provide the Utility with a
schedule of actual costs of the facilities being transferred.
(2) Upon completion of construction of the
Facilities, the Developer which constructed or installed such
Facilities shall provide the Utility with an opinion of the
Developer's counsel to the effect that the lands to be encumbered
by all easements to be conveyed or dedicated by the Developer to
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the Utility pursuant to this Agreement with respect to that phase
or portion of the On-Site Facilities to be accepted by the Utility
for ownership, operation and maintenance are, in fact, owned by the
Developer, free and clear of all liens (including mechanics' liens)
and encumbrances, other than those acceptable and approved by the
Utility. Such opinion of counsel, when rendered, may reflect that
the lands involved are encumbered by a development mortgage or
mortgages, if such mortgage or mortgages are subordinated to the
easements described in this Agreement or if the lands underlying
subject easements are released from such mortgage or mortgages.
(3) After the Developer has satisfied, the
requirements of Subsections (1) and (2) the Utility shall accept
the Facilities from the Developer.
(4) After acceptance of any phase or portion of any
On-Site Facilities for ownership, operation and maintenance by the
Utility, the Developer which constructed or installed such
Facilities shall, with respect to such phase or portion constructed
or otherwise provided by the Developer, (a) convey, grant or
dedicate to the Utility free and clear of all liens and
encumbrances, such easements as are reasonably necessary for the
Utility to own, operate, maintain, repair, expand, and replace the
On-Site Facilities 'constructed thereon, and (h) transfer and
convey to the extent that the same are transferable all
governmental approvals and permits that will enable the Utility to
operate the applicable phase or portion of those On-Site Facilities
and provide Water Service to the improvements, and notify all
governmental agencies of such transfer and conveyance as may be
required by law. The Utility shall review and approval all
documents submitted by the Developers pursuant to this Subsection.
(5) Notwithstanding the above, whether the
development of a Developer's Property involves one customer or a
unity of title of several customers, or in the opinion of the
Utility, ownership by the Utility of the On-Site Facilities is not
necessary, then at the option of the Utility, the Developer shall
retain, ownership and the obligation for maintenance of such On-Site
Facilitioa as the utility shall hereinafter designate in writing.
As long as said Property then remains in one customer, the
Developer or its successors or assigns shall have the right to
retain ownership of such Ori-Sit.e Facilities by a Developer shall
not diminish the right of the Utility to provide service Lu Lhe
property of others by or through the full utilization for such
purpose in accordance with the Master Plan. In the event of such
use by others, the Developer's cost or constructing and maintaining
such Facilities shall be shared between the Developer and the
Utility in accordance with each such party's proportionate share
(based on each party's proportionate flows) or such other method as
said parties ehall mutually determine. Notwithstanding anything to
the contrary contained herein, the Utility shall not be required to
accept title to any Customer Installation.
3.7 Bonding Requirements. After inspection, conveyance
and acceptance and conveyance, the Utility agrees to maintain each
phase of On-Site Facilities that is completed by the Developer,
except for Customer Installations which are not the responsibility
of the Utility as provided in this Agreement. Each Developer shall
indemnify and hold the Utility harmless from any repairs or
replacements required to be made to said Facilities conveyed by
that Developer to the Utility which occur within two years from the
date of conveyance of said Facilities to the Utility.
Simultaneously, with the conveyance of the On-Site Facilities
described above from the Developer to the Utility, the Developer
making said conveyance shall deliver to the Utility an executed
contract bond or letter of credit in the amount of ten percent of
actual costs of construction of said Facilities. If a letter of
credit is used it shall be in form reasonably acceptable to
Utility. The contract bond shall have as the surety thereon, such
surety company as is authorized to write bonds of such character
and amount in accordance with the laws of the State of Florida.
The attorney-in-fact, or other officer who signs such contract bona
for surety company shall file with such bond a certified copy of
his power of attorney authorizing him to do so. The contract bond
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may be written either with the Developer's contractor as
"principal" and the Developer and the Utility as "co-obligees" or,
in the alternative, with the Developer as principal and the Utility
as "obligee." The contract bond or letter of credit shall remain
in force for two years following the date of conveyance to the
Utility against losses resulting from any and all defects in
materials or improper performance or construction. Upon demand by
the Utility, the Developer shall correct or cause to be corrected
within thirty days all such defects which are discovered within
maid warranty period or periods as set forth above. If the defects
are not corrected within thirty days or if the Developer Ls not
proceeding in good faith to correct the defects, the Utility may
give the Developer notice that the Utility intends to correct such
defects and the Developer and its surety shall be liable to the
Utility for its costs arising therefrom or the Utility may draw on
the letter of credit to cover its costs arising from said repairs
and correction of defects.
3.8 Characterisation ABA Surrender of Fa¢ Jities.
Upon conveyance to the Utility of any On-Site Facilities as
aforesaid, the conveyed facilities shall become part of the
Utility's System (as appropriate) , and the Developer shall
surrender control of said Facilities and execute and deliver to the
Utility any documents or instruments necessary for that purpose.
If the Developer shall fail or refuse to do so, then the Utility
shall be entitled to specifically enforce the provisions of this
Subsection 3.8 against the Developer.
3.9 Effect of Reviews. Inspections. Approvals. and
Acceptances. The reviews, inspections, approvals, acceptances, and
conveyance to the Utility of any Plans and Specifications or
construction shall not oonmtitute a waiver of any claims arising
from (1) faulty or defective design, (2) faulty or defective
construction, (3) unsettled liens and encumbrances, and
(4) tort claims.
3.10 Operation and Maintenance pt_ Facilities.
Subject to the Developer's compliance with Sections 3 and 5 hereof .
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the Utility or its successors shall accept conveyance ut Lhvue On-
Site Facilities for which the Utility has approved the design,
construction, and documents specified in Subsection 3.6, excluding
the Customer Installations. Upon acceptance of ownership and
assumption of the responsibility for the operation and maintenance
of any such Facilities by the Utility as contemplated in this
Agreement, all customers of those Facilities shall be deemed
customers of the Utility's System, and the Utility shall set and
collect all sewer rates, fees, charges and deposits for those
Facilities without exception, in accordance with itR Tariff and the
provisions of this Agreement. In addition to other appli,cable
requirements, all property owners and customers must provide at
their expense necessary individual service lines as a condition
precedent to receiving Water Service Capacity from the Utility.
SECTION 4. CONSTRUCTION OF FACILITIES.
4.1 General. Where applicable, and as required by
Utility-approved Plans and Specifications, the Developer shall
construct and install at its sole expense any Facilities required
to extend Water Service Capacity to Developer's Property, in
accordance with the Master Plan. The Developer is required to
construct and install Collection Facilities necessary to transport
sewage from the Property to the Point of Connection. The
construction and conveyance of all such Facilities shall be
governed by all the terms and provisions of Section 3 hereof. The
Utility may elect to construct said Facilities, and in such event
the Developer shall he responsible for payment of a proportional
share of the actual and direct costs for the Facilities required to
extend Water Service Capacity to its property and the installation
of said Facilities. Prior to construction, the Developer shall pay
the Utility the estimated costs of construction. Upon completion
of construction the Utility shall provide to the Developer a
statement of the actual costs of construction. Within ten days of
providing the statement of the actual costs the Utility shall
rebate any excess funds received at the time of estimate or the
Developer shall pay such remaining actual costs not previously
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paid.
4.2 Refundable Advance. The Developer shall always be
responsible for construction, at its sole expense, of any
Facilities required to extend Water Service Capacity to Developer's
Property. The Developer may also be required to size the
Facilities in accordance with the City Water system Master Plan so
as to serve other property owners. In this circumstance, all
amounts expended by the Developer over and above the Developer's
proportionate share of the Facilities necessary to serve
Developer's Property shall be refunded to the Developer in
accordance with the terms and conditions of a Refund Agreement
which the Utility will jointly execute with the Developer. The
Refund Agreement shall provide for a plan of refund based upon the
connection of other properties to the Facilities constructed by the
Developer based upon the proportionate share of the other
properties. The Refund Agreement shall have a term of not more
than seven years from the date of completion of construction,
unless otherwise specified, after which time any portion of the
refund not made to the Developer by other property owners under the
conditions of the Refund Agreement will have lapsed, and the
Developer thereafter will no longer be entitled to any refund.
CIiCTIoH 5. E4$EMBWT$.
5.1 Grant of Easements. The Developer shall execute
specific easements to be recorded in the Official Records of Orange
County consistent with the provisions of Section 3.6(4) .
5.2 Rights of In revs and}Egress. The foregoing grants
include the necessary right of ingress and egress to any part of a
Developer's Property upon which the Utility is constructing,
operating or maintaining such Facilities. The foregoing grants
shall be for such period of time as and to the fullest extent that
the Utility or its successors or assigns require such rights,
privileges or easements in the construction, ownership,
maintenance, operation, repair or expansion of said Facilities.
5.3 private Property Installations. Tn the event mains,
dnaG facilities are to be installed in lands within our outside
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the Developer's Property which are to be owned and maintained by
the Utility in areas outside of streets and public ways, then the
Developer shall grant to the Utility, without cost to the Utility,
the necessary easements for such private property installation by
express grant; provided, all such private property installations
shall be made in such manner as not to interfere with the then
primary use of such private property.
5.4 Arran; in Line Locations. The Utility and the
Developer will use due diligence in ascertaining all easement
locations; however, should the Utility or the Developer install any
sewage Facilities outside a dedicated easement area, or private
easement area conveyed by express grant, the Utility will not be
required to move or relocate any such Facilities lying outside a
dedicated easement area so long as the Facilities do not interfere
with the then or proposed use of the area in which the Facilities
have been installed, and so long as the Utility obtains a private
easement for such line location, which the Developer will give if
same is within its reasonable power to do so. Should the Utility
be obligated to relocate any such Facility installed by a
Developer, then that Developer shall reimburse to the Utility the
costs reasonably incurred by the Utility in connection with such
ralnnat_icn. The Utility shall be responsible for and pay the
expense of the relocation of any such Facility installed by the
Utility.
5.5 Utilization of Easement Grants. The Utility agrees
that all Passment grants willhP utilized in accordance with the
established and generally accepted practices of the sewer industry
with respect to the installation of all such Facilities in any of
the easement areas to service the Developer's Property and the
property of others; and that the Developer and its successors or
assigns in granting any easement herein, or pursuant to the terms
of this instrument, shall have the right to grant rights,
privileges and easements to other persons, firms or corporations to
provide to the Developer's Property any utility services other than
sewer service.
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5.6 Prohibition ikaa,nst Obstructions. The Utility shall
have the right to clear and keep clear from all easements granted
pursuant to this Section 5 all trees, plants and shrubs,
undergrowth, and other obstructions that may interfere with normal
operation or maintenance of any Sewage Facilities placed thereon,
and the Grantor, ito auocessors and assigns of any easement granted
pursuant to this Section 5 agrees not to plant or allow to be
planted trees, plants or shrubs, build, construct or create any
buildings or any other structures upon said easements that may
interfere with the normal operation or maintenance of said Sewage
Facilities.
SECTION 6. RATES. FEES. AND CHARGES. As a condition
to the provision of Water Service Capacity, the Developer agrees to
pay certain rates, fees and charges as hereinafter set forth:
6.1 General. User rates and other charges to the
Developers and individual customers of Water Service Capacity shall
be those set forth from time to time in the Tariff established by
the Utility. However, subjoct to the terms and provisions of this
Agreement, the Utility may establish, amend, revise, and enforce,
from time to time in the future, its Tariff (including capacity or
connection charges and Guaranteed Revenue and Maintenance Fees)
provided that such rates, fees, charges, and deposits are uniformly
applied to customers in its service area, are non-discriminatory as
applied to the same classification of service throughout its
service area. The Utility may establish, amend or revise, from
time to time in the future, and enforce rules and regulations
covering Water Service Capacity to the Developer's Properties.
Such rules and regulations so established by the Utility shall at
all times be reasonable and subject to such regulation as may be
applicable. Any initial or future lower or increased rates, rate
schedules, capacity charges or other fees and charges, and rules
and regulations established, amended or revised and enforced by the
Utility from time to time in the future, shall be binding upon the
Developers, upon any person or other entity holding hv, through or
under the Developers, and upon any user or customer of the Water
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Service Capacity provided to Uie Developer's Properties.
6.2 Inspection and _Revise rose. Pursuant Lo the
provisions of Section 3 and Section 4 of this Agreement, each
Developer shall pay to the Utility Plans and Specifications review
fees and construction inspection fees as follows:
(1) Fees .payable to the Utility for review by the
Utility and its engineers of the Developer's engineering Plans and
Specifications for the Developer's on-site and off-site work shall
be in an amount equal to the then prevailing amount set by the
utility from time to tie. Said fees shall be payable within ten
days after receipt of an invoice by the Developer; provided,
however, that said fee shall not exceed the reasonable costs
incurred by the Utility in performing the review.
(2) Fees for the review and inspection by the
Utility or its engineers of the Developer's construction of its On-
Site and Off-Site Facilities as provided for in this Agreement,
shall be an amount equal to the then prevailing amount set by the
Utility from time to time; provided, however, said fee shall not
exceed the reasonable costs incurred by the Utility in performing
the inspection and shall not exceed two percent of the cost of
construction. The fees shall be paid by the Developer prior to
conveyance to the Utility upon the completion and approval by the
Utility of such construction and upon receipt of an invoice from
the Utility.
6.3 paylent of Customer Deposit . The Utility may
develop a uniform customer and developer deposit policy. upon
applying for service, each customer shall pay to the Utility the
appropriate customer deposit which shall be held and administered
in accordance with the provisions of the policy of the Utility.
The cumtoner will pay any such customer deposit to the Utility in
a manner set by the Utility. Said funds shall become the
unrestricted property of the Utility and shall be available for use
by the Utility with no limitations, restriction, obligation or
encumbrance whatsoever. except to the PxtPnt that annlicahle laws
restrict the Utility in use or disposition of said funds.
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eNesioN 7. AT.tocAtTOtj. Developer is hereby allocated
13.84 equivalent residential units of capacity. The Developer
shall pay utility $ 13,369.44 for said capacity at the time of
execution of this Agreement. The Developer is exempt from the
u1liyalivn la pay any incraaae in water Capital Chorgoo for
capacity which may be in effect at the time of issuance of a
building permit.
SECTION 8. I►LLPCATX918 AND PII.OV28ION OP WATERfirIVic14
CAPkezTr.
8.1 A110catio>i. Subject to each Developer's compliance
with the terms and conditions of this Agreement, the Utility hereby
agrees to allocate Water Service Capacity for the use by the
Developer with its improvements on the Developer's Property. The
allocation for the Developer shall be equal to the Water Service
Capacity for which payment has been made by the Developer. On a
date five years after the date of the cash payment for capacity any
such allocated Water Service capacity for which a building permit
has not been issued (or if issued, expired) shall be surrendered by
the Developer to the Utility, and, in such an event, the Utility
shall not be obligated to refund Water Capital Charges, Revenue and
Maintenance Fees, or other contributions, rates, fees, charges, or
other amounts paid by the Developer.
The Developer may transfer Water Service Capacity to
Purchasers of land for which the Permit was issued and upon
application therefor the. Utility will approve the transfer,
provided the transferee executed a Developer's Agreement for Water •
Service.
Notwithstanding anything herein to the contrary, the
Developer may transfer Water Service Capacity provided that 1) no
transfer of Capacity may be made for consideration greater than the
Developer's initial Water Capital Charge unless the Developer has
paid cash for the capacity, in which case the transfer may be made
for consideration equal to the then prevailing rate established by
the Utility for the Water Capita). Charge; the Transferee must
execute a Developer's Agreement for Water Service, 3) the Utility
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has the right of first refusal of said capacity, and 4) notlos is
given to FUER if a collection or transmission system permit has
been issued for the use of said Capacity. If the Developer is
unable to use all or a portion of the water service Capacity the
Developer may, prior to the termination or the right to use said
capacity, request in writing to sell such Capacity back to the
Utility. The Utility may buy such Capacity back from the•Developer
at the rate originally paid by the Developer for said Capacity,
without interest. If the Developer does not use, transfer, or sell
said Capacity in accordance with the above provisions and the right
to use said Capacity terminates and the Capacity is returned to the
Utility, the Developer may reapply for said Capacity and receive a
credit for any Water Service Capital Charge previously paid against
the cost of any new Capacity.
8.2 Provision of Water Service. Upon the completed
conveyance of On-Site Facilities to the Utility, the payment of
applicable rates, fees, and charges, and the physical connection of
a given Customer Installation to the Utility's System, the utility
agrees to continuously provide Water Services to said Customer
Installation in accordance with the terms and conditions of this
Agreement, its Tariff and applicable requirements of the FUER.
Notwithstanding th4 above, the Utility does not guarantee or
warrant any special service, pressure, quality or other facility
other than what is required to fulfill a duty of reasonable care to
the customers to whom it provides such Water Service.
Utility shall use its best good faith effort to provide
Water Service to the Developer upon demand consistent with the
provisions of this Agreement, provided that the Utility is
obligated to provide Water Service only pursuant to allocated Water
Service Capacity for which cash payment has haven mAdA. The Utility
makes no guarantee for Water Service pursuant to an allocation of
Water Service Capacity for which a Letter of Credit has been
provided until cash payment is made for such Capacity.
SECTION 9. OURTOMES INSTALLATIONS.
9.1 Notice of Initial connection to Utility's Svsteln.
15
The Developer shall give the Utility notice that the Developer is
connooting the On-Site Facilities to the Utility's System not less
than one business day prior to said connection so that the Utility
may inspect said connection; provided, however, that if the date of
inspection occurs on a Saturday, Sunday, or legal holiday, the
Utility may postpone its .inspection until the next occurring day
which is not a Saturday, Sunday, or legal holiday. If a Developer
fails to give said notice, the Utility may require the Developer to
uncover and expose said connection for inspection, at the sole cost
of the Developer.
9.2 ponneation of Inglividual Customer Installation.
Although the responsibility for connecting the Customer
Installations to the Utility System is that of the Developer or
entities other than the Utility, with reference to such
connections, the parties agree as follows:
(1) Only ductile iron, PVC, or such other materials
as the Utility shall reasonably approve in writing shall be used
for said connections.
(2) Except as otherwise provided in Subsection (4)
below, all Customer Installation connections must be inspected by
the Utility before backfilling and covering of any pipes.
(3) Notice to the Utility requesting an inapect.in»
of a Customer Installation connection may be given by the Developer
of the property, and the Utility will make a good faith effort to
inspect said Customer Installation within twenty-four hours of said
notice, or on the next occurring day which is not a Saturday,
Sunday, or legal holiday.
(4) If the Utility fails to inspect the customer
Installation connection within forty-eight hours after such
inspection is due to occur as provided hereinabove, the Developer
of the property or the owner of the property may backfill or cover
the pipes without the Utility's approval; provided, however, the
Developer or Owner shall remain liable for any claims arising from
(a) faulty or defective design. (h) faulty nr defective
r_nnsr.rurtinn, And ( carr. claims associated with said pipes and
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backfilling.
(5) It a Developer does not comply with the
foregoing inspection provisions, the Utility may refuse service to
a connection that has not been inspected until the Developer
complies with these provisions.
(6) The cost of constructing, operating, repairing
or maintaining the Customer Installations shall be that of the
Developer or entities other than the Utility.
9.3 ADDliaation for eerviam. Unless previously
connected prior to the data of execution of this Agreement, each
Developer, its successors, or the occupant of the Developer's
Property, shall make written application to the Utility for the
opening of an account for service. Said application is to be made
only after the payment of all fees and charges as required in
Section 6 hereof. At the time of making said application for
service, the applicant shall pay all service charges as set forth
in the Tariff of the Utility except as modified or otherwise
described herein.
SECTION 10. ASSURANCE Or TITLE TO PRQURTY. Prior to
the execution of this Agreement, at the expense of the Developer,
the Developer shall deliver to the Utility an opinion of title from
an attorney licensed to practice in the State of Florida, with
respect to the Developer's Property, which opinion of title shall
include a current report on the status of the title, setting out
the name of the legal title holders, the outstanding mortgages,
taxes, liens, tenancies or- parties in possession and nther
covenants affecting the Developer's Property. The provisions of
this Section are for the purpose of evidencing the Developer's
legal right to grant the exclusive rights of service and lien
rights contained in this Agreement. The requirements of this
Section are waived if the Utility has previously received an
Opinion of Title acceptable to the Utility.
SECTION 11. INCORPDRATION OF LAWS. RULES AND gQJ.1 CIES.
This Agreement shall be road in conjunction with and he subject to
all existing and future federal, state and local laws, rules anc
ala' a-i,f I . ..,"i;I rilsl Ir , nom:!i::J'J IBJ L :r.i. J11 .. 14 S.` I is
policies applicable to sewer utilities in any manner or form, and
all existing and tuture utility . rules, policies, and Tariff
provisions.
SECTION 12. DIBCLAIMERB1 LIMITATIQN& ON LIA IJITY.
12.1 Status. The Developer and the Utility deem each
other to be independent contractors, and not agents of the other.
12.2 Indemnity. Each Developer shall indemnify the
Utility, its respective agents and employees, from and against any
and all claims, liability, demands, damages, expenses, fees, fines,
penalties, suits, proceedings, actions and fees, including
attorneys' fees, for injury (including death) to persons or damage
to property or property rights that may arise from or be related to
acts, errors, or omissions of the Developer, its agents, employees,
servants, licensees, invitees, or contractors nr by any person
under the control or direction of the Developer, or by the
Developer's use of the Utility's system, and each Developer shall
indemnify the Utility as aforesaid from all liability, claims and
all other items above mentioned, arising or growing out, of or
. connected with any default, breach, violation or nonperformance by
the Developer of any covenant, condition, agreement or provision
contained in this Agreement concerning all or any part of the
Utility's system. Any indemnification provided in this paragraph
shall arise solely from the obligations and actions specified in
this particular Agreement.
12.3 'Force Majeure. The Utility and the Developer shall
not be liable or responsible to each other by reason of the failure
or inability of the Utility or the Developer to take any action
they are required to take or to comply with the requirements
imposed hereby, or any injury to the Utility or the Developer or by
those claiming by or through the Utility or the Developer, which
failure, inability or iniury is caused directly or indirectly by
force majeure as hereinafter set forth. The term "force maleure"
as employed herein shall mean Acts of God, strikes, lock-outs, or
other industrial di.ctvrhnnce: acts of public enemies, war,
blockages, riots, acts of armec _crces. militia, or public
iS
aw Q.:. uI. i,. 4. . rC I I 1 I u,.i, 1...
•
•
authority; epidemics; break down of or damages to machinery, pumps,
or pipelines; landslides, earthquakes, fires, storms, floods, or
washouts; arrests, title disputes, or other litigation;
governmental restraints of any nature, whether federal, state,
county, municipal or otherwise, civil or military; civil
disturbances; explosions; -failure or inability to obtain necessary
materials, supplies, labor or permits or governmental approvals,
whether resulting from or pursuant to existing or future rules,
regulations, orders, laws or proclamations, whether federal, state,
county, municipal or otherwise, civil or military; or by any other
causes, whether or not of the same kind as enumerated herein, not
within the sole control of the Utility or the Developer, as the
case may be, and which by exercise of due diligence the Utility or
the Developer in unable to overcome.
12.4 pisclaimer of Thirst Party Beneficiaries. This
Agreement is solely for the benefit of and shall be binding upon
the formal parties hereto and their respective authorized
successors and assigns, and no right or cause of action shall
accrue upon or by reason hereof, to or for the benefit of any third
party not a party to this Agreement or an authorized successor or
assignee thereof.
12.5 Disclaimer of security. Notwithstanding any other
provision of this Agreement, the Developer expressly acknowledges
(1) that it has no pledge of or lien upon any real property
(including, specifically, the Utility's system) , any personal
property, or any existing or future revenue source 'of the Utility
(including, specifically, any revenues or rates, fees or charges
collected by the Utility in connection with the Utility's System)
as security for any amounts of money payable by the Utility under
this Agreement; and (2) that its rights to any payments or credits
under this Agreement are subordinate to the rights of al holders of
any stocks, bonds, or notes of the Utility, whether currently
outstanding or hereafter issued.
SECTION 13. TERMINATION AND QTHER_RXM DIES. The utility
shall have the right, for any length of time, to refuse to provide
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rt,44 hiLLi.lJl•7) LLVAL i i 04 % 1i l " 1.1 1 :
•
or to terminate Water Service capacity to any Developer or any
structure on that Developer's Property in the event that the
Developer or its successors and assigns fail to comply with any of
the terms and conditions of this Agreement concerning all or any
part of the Utility's System, Utility rules or policies, or any
other general or special law or revisions thereof at any time (as
may be determined by the Utility) or to terminate such a
Developer's rights under this Agreement for such violations.
Nothing contained in this Agreement shall be construed to prohibit
the Utility from exercising or utilizing any_ other appropriate
remedies for the enforcement of the terms and conditions of this
Agreement by whatever means are provided by law or equity,
including but not limited to the right of specific performance. In
connection with any litigation between the Utility and a ravel open,
including appellate proceedings arising out of this Agreement or
the violation of any law, rule, regulation, ordinance, resolution,
or permit, the prevailing party shall be entitled to recover from
the other party reasonable attorneys' fees and costa hereunder.
The exercise of the Utility's termination or refusal rights under
this Section 13 hereof, shall, not be made arbitrarily or
capriciously and shall be subject to the Utility's rules and
regulations and to the notice and default provisions of Section 15
hereof.
SECTION 14. NOTICE: PROPER FORM. Any notices required
or allowed to be delivered shall be in writing and be deemed to be
delivered when (1) hand delivered to the official hereinafter
designated, or (2) upon receipt of such notice when deposited in
the United States mail, postage prepaid, certified mail, return
receipt requested, addressed to a party at the address set forth
opposite the party's name below, or at such other address as the
party shall have specified by written notice to the other party
delivered in accordance herewith.
Developer: : Albertson's, Int_
' 250 Parkcenter Boulevard
. Boise, Idaho 83726
Attention: Legal Department
Phones (209) 395-6575
c Fax: (208) 38:5-6792
:.o
injd Ltw•... Li, +. h._I .•.
Utility: City of Ocoee
City Manager
150 North Lakeshore Drive
Ocoee, FL 34761
SECTION 16. NOTICES, DEFAULT. Each of the parties
hereto shall give the other party written notice of any default
hereunder and shall allow the defaulting party thirty days from the
date of its receipt of such notice within which to cure any such
defaults or to commence and thereafter diligently pursue to
completion good faith efforts to effect such cure and to thereafter
notify the other parties of the actual cure of any such defaults.
SECTION 16. A88IGNMENTS.
16.1 Assignments by the giveloper. Except as expressly
provided herein, the Developer agrees not to assign or transfer any
or all portions of this Agreement. The allocation of Water SPrvira
Capacity granted to each Developer may be assigned, transferred,
leased, encumbered or disposed of consistent with the terms of this
Agreement if and only if the assignee pays all of the Utility's
reasonable legal and administrative costs incurrRd in connection
with such Assignment, and assumes all of the duties and obligations
of the assignor under this Agreement.
16.2 Assignments by the Utility. The Utility shall have
the right to assignor transfer this Agreement, or the rights and
responsibilities contained herein, to any properly authorised
commission, authority, corporation, or other public or private
person, firm, or entity without consent of the Developer.
16.3 Notice of Transfer of Developer's propertv.. The
Developer agrees that any Developer legally transferring Water
Service Capacity, in accordance with the provisions of this
Agreement shall provide proper written notice to the Utility of the
actual date of the legal transfer of Water Service capacity from
the Developer to any other party. The Developer making such
transfer shall remain responsible for all costs and expenses,
including utility bills, which arise in the event that Developer
fails to nrnnarl v notify 1:t_i l i tv.
16.4 B,,ihlg_Agreement._pn Si,Egoessors. This Agreement
shall be binding upon and shall inure to the bonerit of the
Developar, the utility, and their respective successors and
assigns.
SECTION 17. RECORDATION. The parties hereto agree that
an executed copy of this Agreement and Exhibits attached nereto
shall be recorded in the Public Records of Orange County, Florida,
at the expense of the Developer.
SECTION 18. APPLICABLE LAW. This Agreement and the
provisions contained herein shall be construed, controlled, and
interpreted according to the laws of the State of Florida.
SECTION 19. SURVIVAL OF COVENANTS. The rights,
privileges, obligations and covenants of the Developer and the
Utility shall survive the completion of the work of the Developer
with respect to any phase and to the Developer's Property as a
whole.
SECTION 20. SEVERABILITY. If any part of this Agreement
is found invalid or unenforceable by any court, such invalidity or
unerforceability shall not affect the other part of this Agreement
if the rights and obligations of the parties contained therein are
not materially prejudiced and if the intentions of the parties can
continue to be effected.
SECTION 21. RECQYERY OF COSTS AND FEES. In the event .
the Utility or the Developer is required to enforce this Agreement
by court proceedings or otherwise, then the prevailing party shall
be entitled to recover from the other party all costs incurred,
including reasonable attorneys' fees, whether incurred prior to,
during or subsequent to such court proceedings or on appeal.
SECTION 22. TIME OF THE ESSENCE. Time is hereby
declared of the essence to the lawful performance of the duties and
obligations contained in this Agreement.
SECTION 23. ENTIRE AGREEMENT. This instrument and its
exhibits constitute the entire Agreement between the parties and
supersedes all previous discussions, understandings, and dyreements
between the parties relating to the subject matter of this
Agreement. Amendments to and waivers of the provleions herein
LG
.)1I:1Ld LL'J- .1 k k1,1 ii.,
shall be made by the parties in writing by formal amendment.
SEcTION 24. EFFECTIVE DATA. The parties hereto
recognize that this Agreement must be approved by the City
Commission of the Utility. This Agreement shall become effective
as of the day and year first above written.
•
IN WITNESS WHEREOF, the Developer and. the Utility have
executed or have caused this Agreement with the named Exhibits
attached to be duly executed the day and year first above written.
WITNESSED: "UTILITY"
CITY OF OCOEE,
a Florida municipal corporation
By:
Print Names _ S. Scutt Vandergrirt, Mayor
Print Name: , Attest:
Jean Grafton, City Clerk
WITNESSED: "DEVELOPER"
42.11.11 INC.
P N:217210 � , , a Dolawarc
Cory IItion
.. r
Print Name�4� % 1 _ ,
41,0 :y: • Follies H. Arnold
•
Aa iter Vie! President;. Real Karat)) Law
FOR USE AND RELIANCE ONLY BY
THE CITY or occas, !Lult1'ua.
APPROVED AS TO FORM AND LEGALITY
this day or , 1993.
FOLEY i LARDNER APPROVED BY THE OCOEE CITY
'COMMISSION AT A MEETING
HELD ON • 3.993
By: UNDER AGENDA ITEM NO.
City Attorney
STATE OF FLORIDA
COUNTY OF
I HEREBY CERTIFY that on this day, before me. an officer
FluIy ."tt:hur•t/..ed in the States and County aforesaid to
Acknowledgements, porconally appeared S. SCOTT VANDERGRIFT end JEAN
GRAFTON, personally known to me to be the Mayor and City Clerk,
respectively, of the CITY OF OCOEE, a Florida municipal
corporation, and teat they severally acknowledged executing the
same in the presence of two subscribing witnesses freely and
voluntarily under authority duly vested in thorn by onirl
municipality and that they did not take en oath.
,:‘,1+ Li:Ir._ .i . ., 1i
WITNESS my hand and official seal in the County and state
last aforesaid this day or April, 1993.
Notary Public, State of FL
Print Name of Notary
•
My commission expires:
Serial No.:
STATE OF
COUNTY OF .d.
The foregoing instrument was acknowledged before me this ,{544
day of Apri 1 , 1993 by i,,'LLtAin H.ARV& aic pQ£5,'4E4/T, 'CAL ESrA E. LAW,
of ALBERTSON'S, INC. , a Delaware corporation, on benalf of the
corporation. He%ois is personally known to me or has produced
p as identification and 444—(did natl.
)ttake
�anoath.
No ry ublic, '8tdte/o�F
Print Name of Notary:
iiSfP1 4, Lth• be 1.)
My commission expires: a -o /-9 9
•
Serial No. : 1 013 6
EXIfIBIT "A"
LEGAL DESCRIPTION
Lot 2, ALBERTSON'S SHOPPING CENTER OF OCOBE,
according to the Plat thereof as recorded in Plat Book_,Page
of the Public Records of Orange County, Florida.
RE 105334\0008\D.IOLA04.131
930413