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HomeMy WebLinkAboutItem III (F) Approval and Authorization for Mayor and City Clerk to Execute Development Agreement for Water Service-Cross Creek Development Company AGENDA 10-19-93 "CENTER OF GOOD LIVING-PRIDE OF WEST ORANGE" Item III F Ocoee S.SCO"IT VAN DERGRIFT 1/4( ° ,'�° CITY OF OCOEE RUSTY COMMISSIONERS... a \ 150 N.LAKESHORE DRIVE PAUL W.FOSTER 0 OCOEE,FLORIDA 34761 VERN COMBS V* 0-At. �C? (407)6562322 SAM WOODSON rEorG000 �� QTY MANAGER ELLIS SHAPIRO MEMORANDUM DATE: October 14, 1993 TO: The Honorable Mayor and Board of City Commissioners FROM: Montye E. Beamer, Director/?------- Administrative Services SUBJECT: DEVELOPER'S AGREEMENT FOR WATER SERVICE CROSS CREEK DEVELOPMENT COMPANY In January, 1993, a default of pre-sold water capacity put 400 ERU's into an uncommitted, yet advertised category. For the current phase of its development, Cross Creek will be purchasing 50 ERU's from Maguire Road Corporation and 108 ERU's from the City. The attached agreement allows for the transfer of the 50 ERU's and the purchase of these 108. Payment will be received within five business days of the acquisition of the Property. The terms and conditions will extend beyond this current phase as the instrument for the purchase of additional ERU's should adjoining property as described be acquired. Staff recommends approval provided the agreement has been fully executed by the developer and payment in full has been received in accordance with the payment schedule as described above. 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 Cross Creek Development Company and (2) authorize the Mayor and City Clerk to execute. MEB/jbw O C6 AMENDED AND RESTATED WATER SERVICE AGREEMENT THIS DEVELOPER'S AGREEMENT FOR WATER SERVICE is made this day of , 1993, by and between the CITY OF OCOEE (hereinafter referred to as the "Utility") , and CROSS CREEK DEVELOPMENT COMPANY, a Florida general partnership (hereinafter referred to as "Developer") . RECITALS 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, and has the right to acquire certain additional property located in Orange County, Florida, and more particularly described in Exhibit "B" attached to and by this reference made a part hereof. Said Property is hereafter referred to as the "Property" or the "Developer's Property." 2. The Developer has constructed or will construct certain improvements in 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. 7. The Utility and Maguire Road Corporation entered into an Agreement for Sanitary Water Service recorded in Official Records Book 4060, Page 2054, Public Records of Orange County, Florida; and the Utility, Maguire Road Corporation and Robert L. Ferdinand, as Trustee, entered into that certain First Amendment to Developer's Agreement recorded in Official Records Books 4060, Page 2015, Public Records of Orange County, Florida, (said Agreements are hereinafter being collectively referred to as the "Water Service Agreement") . 8. Utility and the Developer wish to amend and restate the Water Service Agreement as it relates to the Property. 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 other, the receipt and sufficiency of which are hereby acknowledged, the parties hereto do hereby agree as follows: SECTION 1. RECITALS. The above recitals are true and correct, and form a material part of this Agreement. SECTION 2. DEFINITIONS. The parties agree that in construing this Agreement, the definitions in Chapter 173 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 Water Facilities on the customer's side of the Point of Distribution. 2.3 "Off-Site Facilities" means the Distribution Facilities used to provide Water Service to a Developer's Property but not located on that Developer's Property. 2.4 "On-Site Facilities" means that portion of the Distribution Facilities used to provide Water Service to a Developer's Property and located within the Developer's Property. 2.5 "Point of Distribution" means the point where the Distribution Facilities are connected to the Primary Water Main. 2.6 "Treatment Facilities" means those Water Facilities used for the treatment of Water in accordance with applicable 2 governmental rules and regulations. 2.7 "Utility" means the CITY OF OCOEE, its successors or assigns. 2.8 "Utility's System" means all Water 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 FACILITIES. 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 shall, 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 Plans and Specifications may be limited to the first Phase only, and Plans and Specifications for subsequent Phases during the approval process may be 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 does 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's Tariff. In the event that a Developer requests a modification in its Plans and Specifications which would result in an increase in the Water Service Capacity needed for the development, the Utility may allow the 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 3 Capacity shall be governed by the then existing and applicable rates and regulations of the Utility. 3.2 Approval of Plans 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 Plans and Specifications shall make corrections 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 Plans and Specifications. The Utility's determination that such Plans and Specifications are unacceptable shall not be made arbitrarily or capriciously. The Plan 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 Construction 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-Site Facilities as the same are depicted in the Utility-approved Plans and Specifications therefor. Each Developer warrants that the On-Site Facilities to be constructed by 4 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 such work. The Utility's approval of such contractors shall not be unreasonably withheld. 3.5 Inspection, Testing and Approval of Construction. During the construction of On-Site Facilities by a Developer, the 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 6.3 hereof. 3.6 Acceptance and Conveyance of Dedication of Facilities and Easements. (1) Each 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" drawings showing specifications, locations, depth and other appropriate details of all Water 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 5 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 costs of the facilities being transferred, certified by the Developer, along with a detailed accounting of the cost of the facility 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 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, of 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 (b) transfer and convey 6 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 approve all documents submitted by the Developers pursuant to this Subsection. 3.7 Bonding Requirements. After inspection, conveyance and acceptance, 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 by 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 bond for surety company shall file with such bond a certified copy of his power of attorney authorizing him to do so. The contract bond 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 7 the Utility, the Developer shall correct or cause to be corrected within thirty days all such defects which are discovered within said warranty period or periods as set forth above. If the defects are not corrected within thirty days or if the Developer is 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 Characterization and Surrender of Facilities. 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 conveyances to the Utility of any Plans and Specifications or construction shall not constitute a waiver of any claims arising from (1) faulty or defective design, (2) faulty or defection construction, (3) unsettled liens and encumbrances, and (4) tort claims. 3.10 Operation and Maintenance of Facilities. Subject to the Developer's compliance with Sections 3 and 5 hereof, the utility or its successors shall accept conveyance and assume responsibility for the operation and maintenance of those 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 8 Agreement, all customers of those Facilities shall be deemed customers of the Utility's System, and the Utility shall set and collect all water rates, fees, charges and deposits for those Facilities, without exception, in accordance with its Tariff and the provisions of this Agreement. In addition to other applicable 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 Distribution Facilities necessary to transport water from the Primary Water Main to the Property. The construction and conveyance of all such Facilities shall be governed by all the terms and provisions of Section 3 hereof. The Developer's obligations concerning construction of Facilities which are not within the Property consist of the construction of necessary lines within the right of way for Maguire Road to connect the Distribution Facilities to the Primary Water Main. Point of Distribution is within the right of way of Maguire Road, and lies west of the paved surface of Maguire Road. 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 credited to the Developer upon completion of construction of the Facilities. The oversizing obligations of the Developer hereunder consists of the installation 9 of a twelve inch (12") line at the request of the Utility, rather than the installation of a eight inch (8") line, which the Utility agrees would be satisfactory for the needs of the Developer related to the Property. The agreed upon costs for oversizing of the Facilities is $13,328.30. SECTION 5. EASEMENTS. 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 Ingress 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. In the event mains, lines or facilities are to be installed in lands within or outside 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 easement or 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 Errors 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 Water 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 10 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 Utility installed by a Developer, then that Developer shall reimburse to the Utility the costs reasonably incurred by the Utility in connection with such relocation. 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 easement grants will be utilized in accordance with the established and generally accepted practices of the water 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 other; 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 exclusive or non- exclusive rights, privileges and easements to other persons, firms or corporations to provide to the Developer's Property any utility services other than water service. 5.6 Prohibition Aaainst 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 Water Facilities placed thereon, and the Grantor, its successors 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 Water 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 11 be those set forth from time to time in the Tariff established by the Utility. However, subject 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 Developers' 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 by, through or under the Developers, and upon any user or customer of the Water Service Capacity provided to the Developer's Properties. 6.2 Inspection and Review Fees. Pursuant to 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 time. Said fees shall be payable within ten days after receipt of an invoice from the Utility 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, 12 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 fee shall be paid by the Developer prior to conveyance to the Utility and upon receipt of an invoice from the Utility. 6.3 Payment of Customer Deposits. 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 customer 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 extent that applicable laws restrict the Utility in use or disposition of said funds. SECTION 7. PAYMENT. The Developer is hereby allocated 50 ERU's of Water Capacity through transfer from Maguire Road Corporation, which acquired capacity under the terms of that certain Developer's Agreement for Water Service dated November 18, 1988, recorded March 3, 1989, Official Records Book 4060, Page 2054 et. seq. , Public Records of Orange County, Florida. Prior to execution of this Agreement by the Utility, Maguire Road Corporation has satisfied all outstanding obligations of Maguire Road Corporation for this 50 ERU's of capacity, including, but not limited to, outstanding revenue and maintenance fees. The Utility and the Developer hereby agree that the Developer shall be permitted to phase its acquisition of water capacity in accordance with the following schedule: a. Allocation of 50 ERU's of water capacity through transfer from Maguire Road Corporation at the time of acquisition of the Property described in Exhibit "A". b. Allocation of 108 ERU's of water capacity within 13 five business days of the acquisition of the Property described in Exhibit "A". Payment due the Utility at that time shall be $104,328.00. c. Allocation of 164 ERU's of water capacity within five business days of the acquisition of the Property described in Exhibit "B". Payment due the Utility at that time shall be $144,595.70 ($158,424.00 less the credit of $13,328.30 referenced in Paragraph 4.2 herein) , except that if Utility raises its capacity fee prior to that time Developer shall pay the higher fee. Developer acknowledges and agrees that the allocation and reservation of capacity under this Agreement meets the requirements of the City of Ocoee Comprehensive Plan for Phase I of the Development, but provides no rights or guarantees for Phase II of the Development. City approval of the Department of Environmental Protection Permit for the Property shall be limited to Phase I until payment by Developer under Paragraph C of this section. SECTION 8. ALLOCATION AND PROVISION OF WATER SERVICES CAPACITY. 8.1 Allocation. 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 cash 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 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 executes a Developer's Agreement for Water Service. 14 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 Capital Charge; (2) the Transferee must execute a Developer's Agreement for Water Service; and (3) the Utility has the right of first refusal 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 of the right to use said Capacity, request in writing to sell such Capacity back to the Utility. The Utility may buy the Capacity back from the Developer at the rate originally paid by the Developer for the 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 Capacity and will receive a credit for any Water Capacity 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 Service to said Customer Installation in accordance with the terms and conditions of this Agreement, its Tariff and applicable requirements of the FDER. Notwithstanding the above, the Utility does not guarantee or warrant any special services, 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 15 obligated to provide Water Service only pursuant to allocated Water Service Capacity for which cash payment has been made. The Utility makes no guarantee for Water Service pursuant to an allocation of Water Service Capacity for which a Letter of Credit or proposed plan of payment has been provided until cash payment is made for such Capacity. SECTION 9. CUSTOMER INSTALLATION. 9.1 Notice of Initial Connection to Utility's System. The Developer shall give the Utility notice that the Developer is connecting 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 Connection of Individual 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 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 inspection 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. 16 (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, (b) faulty or defective construction, and (c) tort claims associated with said pipes and backfilling. (5) If 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 Application for Service. Unless previously connected prior to the date 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 OF TITLE TO PROPERTY. 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 law 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 other covenants affecting the Developer's Property. The provisions of 17 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. INCORPORATION OF LAWS, RULES AND POLICIES. This Agreement shall be read in conjunction with and be subject to all existing and future federal, state and local laws, rules and policies applicable to water utilities in any manner or form, and all existing and future Utility rules, policies, and Tariff provisions. SECTION 12. DISCLAIMERS; LIMITATIONS ON LIABILITY. 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 or 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 shall not be liable or responsible to any Developer by reason of the failure or inability of the Utility to take any action it is required to take or to 18 comply with the requirements imposed hereby, or any injury to a Developer or by those claiming by or through the Developer, which failure, inability or injury is caused directly or indirectly by force majeure as hereinafter set forth. The term "force majeure" as employed herein shall means Acts of God, strikes, lock-outs, or other industrial disturbance, acts of public enemies, war, blockages, riots, acts of armed forces, militia, or public authority; epidemics; break down of or damage 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 and which by exercise of due diligence the Utility is unable to overcome. 12.4 Disclaimer of Third 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 provisions 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 19 this Agreement; and (2) that its rights to any payments or credit under this Agreement are subordinate to the rights of all holders of any stocks, bonds, or notes to the rights of all holders of any stocks, bonds, or notes of the Utility, whether currently outstanding or hereafter issued. SECTION 13. TERMINATION AND OTHER REMEDIES. The Utility shall have the right, for any length of time, to refuse to provide 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 Developer, 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 costs hereunder. The exercise of the Utility's termination or refusal rights under this Section 13 hereof, shall, however, 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 the party at the address set forth 20 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: CROSS CREEK DEVELOPMENT CO. c/o Richard C. Daley, Esquire Pizzuti Equities, Inc. 250 East Broad Street Columbus, Ohio 43215 Copy to: James E. L. Seay, Esquire Maguire, Voorhis & Wells, P.A. Two South Orange Avenue Orlando, FL 32801 Utility: City of Ocoee City Manager 150 Lake Shore Drive Ocoee, FL 32761 SECTION 15. 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. ASSIGNMENTS. 16.1 Assignments by the Developer. Except as expressly provided herein, the Developer agrees not to assign or transfer any or all portions of this Agreement. The allocation of Water Service 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 incurred 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 assign or transfer this Agreement, or the rights and responsibilities contained herein, to any properly authorized 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 Property. The Developer agrees that any Developer legally transferring Water 21 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 properly notify Utility. 16.4 Binding Agreement on Successors. This Agreement shall be binding upon and shall inure to the benefit of the Developer, 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 hereto 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 unenforceability 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. RECOVERY 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. 22 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 agreements between the parties relating to the subject matter of this Agreement. Amendments to and waivers of the provisions herein shall be made by the parties in writing by formal amendment. SECTION 24. EFFECTIVE DATE. The parties hereto recognize that this Agreement must be approved by the City Commission of the Utility. This Agreement shall become effective upon the date of execution hereof by the proper representatives of the Utility and the Developer. 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 Print Name: By: Print Name: S. Scott Vandergrift, Mayor As to Utility Attest: Jean Grafton, City Clerk WITNESSED: "DEVELOPER" CROSS CREEK DEVELOPMENT COMPANY Print Name: BY: PIZZUTI EQUITIES, INC. Its General Partner Print Name: BY: Its: As to Developer FOR USE AND RELIANCE ONLY BY APPROVED BY THE OCOEE CITY THE CITY OF OCOEE, FLORIDA COMMISSION AT A MEETING HELD APPROVED AS TO FORM AND ON JANUARY, 1993, UNDER LEGALITY: AGENDA ITEM THIS DAY OF JANUARY, 1993. 23 FOLEY & LARDNER By: City Attorney STATE OF FLORIDA COUNTY OF ORANGE BEFORE ME personally appeared S. Scott Vandergrift and Jean Grafton, to me well known to be the individuals described in and who executed the foregoing instrument as Mayor and City Clerk, respectively, of CITY OF OCOEE, and they acknowledged to and before me that they executed such instrument as such officers of said political subdivision and of the State of Florida and that said instrument is the free act and deed of said political subdivision. WITNESS my hand and official seal in the County and State last aforesaid this day of January, 1993. Signature of Notary Name of Notary (NOTARIAL SEAL) Commission Number My Commission Expires STATE OF FLORIDA COUNTY OF I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the State aforesaid and in the County aforesaid, to take acknowledgements, personally appeared before me , as President of PIZZUTI EQUITIES, INC. , the general partner of CROSS CREEK DEVELOPMENT COMPANY, a Florida general partnership. Said individual is personally known to me, or [ ] who produced a driver's license issued by the Florida Department of Motor Vehicles as identification, and who acknowledged that he executed the foregoing instrument freely and voluntarily for the uses and purposes expressed therein. WITNESS my hand and official seal in the County and State last aforesaid this day of October, 1993. Signature of Notary Name of Notary (NOTARIAL SEAL) Commission Number My Commission Expires C:\WP51\DOCS\PIZZUff.WAT 110/15/931 ORL I RDW:sm 24 EXHIBIT "A" EXHIBIT "B"