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HomeMy WebLinkAboutItem III (C) Approval and Authorization for Mayor and City Clerk to Execute Developer's Agreement for Water Service with Triple H Properties, A General Partnership AGENDA 9-21-93 "CENTER OF GOOD LIVING-PRIDE OF WEST ORANGE" Item III C Ocoee b.SWFI VANDEK(AKlr'1 r ° "� to3CITY OF OCOEE RUSTY JOHNSON O. 150 N.LAKESHORE DRIVE PAUL W.FOSTER v O OCOEE,FLORIDA 34761 VERN COMBS * (407)656-2322 SAM WOODSON 04, '> CITY MANAGER �f GpO� ELLIS SHAPIRO MEMORANDUM DATE: September 16, 1993 TO: The Honorable Mayor and Board of City Commissioners FROM: Montye E. Beamer, Director 77' Administrative Services SUBJECT: DEVELOPER'S AGREEMENT FOR WATER SERVICE TRIPLE H PROPERTIES, A GENERAL PARTNERSHIP 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, Triple H Properties requires 14 water ERU's. This agreement allows for the purchase of these 14 but will extend beyond this current phase as the instrument for the purchase of additional ERU's. Staff recommends approval provided the agreement has been fully executed by the developer and payment in full 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 Triple H Properties, A General Partnership and (2) authorize the Mayor and City Clerk to execute. MEB/jbw WP6o\DOCS\rnw,,ww116s�3\s OWNER'S AGREEMENT FOR WATER SERVICE THIS OWNER'S AGREEMENT FOR WATER SERVICE is made this day of , 1993, by and between the CITY OF OCOEE (hereinafter referred to as "Utility"), and TRIPLE H PROPERTIES, a Florida general partnership (hereinafter referred to as "Owner"), its successors in interest and assigns. RECITALS 1. The Owner owns certain property located in Orange County, Florida, more particularly described in attached Exhibit "A". Said property is hereinafter referred to as "Property", or "the Owner's Property". 2. The water service capacity for the Owner shall be provided in the manner described below and subject to the terms and conditions provided herein. 3. The Utility is willing to provide water service capacity to the Owner in accordance with and subject to the terms and conditions of this Agreement, applicable rules, regulations, laws, and requirements. 4. The Utility and the Owner 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 Owner in accordance with the terms. NOW THEREFORE, in consideration of the Recitals herein, and for good and other valuable consideration, the sufficiency and receipt of which is hereby acknowledged, the parties 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 as contained 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 Owner'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 connection. 2.3 "Off-Site Facilities" means the Distribution Facilities used to provide Water Service to a Owner's Property but not located on that Owner's Property. 2.4 "On-Site Facilities" means that portion of the Distribution Facilities used to provide Water Service to a Owner's Property and located within the Owner's Property. 2.5 "Point of Connection" means the Distribution Facilities adjacent to the Owner's Property situated along S.R. 50. 2.6 "Treatment Facilities" means those Water Facilities used for the treatment of Water in accordance with applicable 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. -2- SECTION 3. Design Construction and Operation of On-Site Collection Facilities. The Owner agrees as a condition precedent to its receipt of Water Service Capacity to do the following: 3.1 Design of On-Site Facility. The Owner 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 the construction, graphic Plans and Specifications for the construction of the On-Site Collection Facilities to be located on Owner's Property, including the Facilities necessary to connect the On-Site Facilities to the Point of Connection. 3.2 Approval of Plans and Specifications for On-Site Collection Facilities. The Utility shall review and reject or approve, any such Plans and Specifications submitted pursuant to Subsection 3.1 hereof. The engineers of Owner submitting such Plans and Specifications shall make corrections and/or modifications to any portion of the Plans and Specifications which are unacceptable to the Utility at the Owner'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 Plans and Specifications shall be valid from one year from the date of approval by the Utility. An extension of time may be granted by the Utility, if the Owner is proceeding in good faith and presents reasonable grounds for an extension of time. 3.3 Inspection. Testing and Approval of Construction. During the construction of the On-Site Facilities and the Facilities necessary to connect the On-Site Collection Facilities to -3- the Point of Connection by the Owner, the Utility shall have the continued right to inspect such installation 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. Owner 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 Owner or its contractor, which charge shall be as provided in Subsection 6.2 hereof. 3.4 Effect of Reviews. Inspections. Approvals. and Acceptances. The reviews, inspections, approvals, and acceptances and conveyance to the Utility of any Plans and Specifications or construction shall not constitute a waiver of any claims arising from (1) faulty of defective design, (2) faulty of defective construction, (3) unsettled liens and encumbrances, SECTION 4. Construction of Facilities. 4.1 General. The Owner shall construct and install, at its own expense, the On-Site Facilities and the Facilities necessary for connection to the Off-Site Facilities of the Utility. SECTION 5. Easements. 5.1 Grant of Easements. The Owner shall execute specific easements to be recorded in the Official Records of Orange County, consistent with the provisions as contained herein. 5.2 Rights of Ingress and Egress. The Utility shall be entitled to receive, an easement for the right of ingress and egress on to Owner's Property, for purposes of servicing any On-Site Facilities constructed by the Owner. -4- 5.3 Private Property Installations. In the event mains, lines or facilities are to be installed in land within or outside of the Owner's Property which are to be owned and maintained by the Utility in areas outside of streets and public ways, then the Owner 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 matter as not to interfere with the then primary use of such private property. 5.4 Errors in Line Locations. The Utility and the Owner will use due diligence in ascertaining all easement locations; however, should the Owner 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 use of the area in which the facilities have been installed, and so long as Utility obtains a private easement for such line location, which the Owner will give if the same is within its reasonable power to do so. Should the Utility be obligated to relocate any such facility installed by Owner, then the Owner shall reimburse the Utility the cost 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. Utility agrees that all easement grants shall 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 Owner's Property and the property of others; and that the Owner and its successor or assigns in granting any easement herein, or pursuant to the terms of this instrument, shall have the right -5- to grant rights, privileges and easements to other persons, firms or corporations to provide to the Owner's Property and Utility services other than water service. 5.6 Prohibition Against 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 which may interfere with the normal operation or maintenance of any sewage facilities placed thereon and the grantor, its successors and assigns of any easement granted pursuant to this Section 5, agrees not to plant or to 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 Owner agrees to pay certain rates, fees and charges as hereinafter set forth: 6.1 General. User rates and other charges to the Owners and individual customers of Water Service Capacity shall 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 Owner'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, -6- 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 Owners, upon any person or other entity holding by, through or under the Owners, upon any person or other entity holding by, through or under the Owners, and upon any user or customer of the Water Service Capacity provided to the Owner's Properties. 6.2 Inspection and Review Fees. Pursuant to the provisions of Section 3 and Section 4 of this Agreement, each Owner 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 Owner's engineering Plans and Specifications for the Owner'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 by the Owner 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 Owner'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 Owner 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. -7- SECTION 7. Allocation and Payment. The Owner is hereby allocated 14.0 equivalent residential units of capacity. At the time of execution of this Agreement, the Owner shall provide payment for the Water Capital Charges due to the Utility for this allocation of capacity or $12,600.00. Additional capacity may be purchased by Owner for adjacent lands through written amendment to this Agreement. Should Owner transfer Ownership of the Owner's Property, the Owner shall transfer capacity to the successor in the manner provided in Chapter 22 of the Ocoee Code of Ordinances, and shall continue to be bound by the terms of the Agreement. SECTION 8. Allocation and Provision of Water Service Capacity. 8.1 Provision of Water Service. Upon connection of the On-Site Facilities to Off-- Site Facilities owned by the Utility, and the payment of applicable rates, fees and charges, the Utility agrees to continuously provide water service to the Owner in accordance with the terms and conditions of this Agreement, its Tariff and applicable requirements of the FDEP. Notwithstanding the 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. SECTION 9. Customer Installations. 9.1 Notice of Initial Connection to Utility System. The Owner shall give the Utility notice that the Owner 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 the inspection occurs on a Saturday, Sunday, or legal holiday, the Utility may postpone its inspection until the next occurring day which is not a -8- Saturday, Sunday, or a legal holiday. If the Owner fails to give such notice, then the Utility may require the Owner to uncover and expose the connection for inspection at the sole cost of the Owner. 9.2 Connection of Individual Customer Installation. Although the responsibility for connecting the Customer Installations to the Utility System is that of the Owner, 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 inspection of a Customer Installation connection may be given by the Owner 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 herein above, the Owner of the property may backfill or cover the pipes without the Utility's approval; provide, however, the 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 the Owner does not comply with the foregoing inspection provisions, the Utility may refuse service to a connection that has not been inspected until the Owner complies with these provisions. (6) The cost of constructing, operating, repairing or maintaining the Customer Installations shall be that of the Owner or entities other than the Utility. —9— 9.3 Application for Service. Unless previously connected prior to the date of execution of this Agreement, the Owner, its successors, or the occupant of Owner's Property, shall make written application to the Utility for the opening of an account for service. Said application is to be made during the construction of the connection between the "On-Site Facilities" and the Utility's "Off-Site Facilities". At the time of making said application for service, the applicant shall pay all service charges 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 Owner, the Owner shall deliver to the Utility an opinion of title from an attorney licensed to practice in the State of Florida, with respect to the Owner'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 Owner's Property. The provisions of this Section are for the purposes of evidencing the Owner'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. Disclaimer: Limitations on Liability. 12.1 Status. The Owner and the Utility deem each other to be independent contractors, and not agents of the other. 12.2 Indemnity. The Owner shall indemnify the Utility, its respective agents and employees, from and against any and all claims, liability, demands, damages, expenses, fees, find, penalties, suits, —10— proceedings, actions and fees, including attorney's 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 Owner, its agents, employees, servants, licensees, invitees, or contractors or by any person under the control or direction of the Owner, or by the Owner's use of the Utility's system, and Owner 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 Owner of any covenant, condition, agreement or provision contained in the Agreement concerning all of 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. The Utility and the Owner shall not be liable or responsible to each other by reason of the failure or inability of the Utility or the Owner 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 Owner or by those claiming by or through the Utility of the Owner, 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 mean Acts of God, strikes, lock-outs, or other industrial disturbance; acts of public enemies, war, blockages, riots, acts of armed forces, militia, epidemics; break down of or damage to machinery, pumps, or pipelines; landslides, earthquakes, fires, storms, floods, or washouts' arrests, title disputes, or other litigation; federal, state, or county restraints, 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, 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 Owner, as the case may be, and which by exercise of due diligence the Utility or the owner is unable to overcome. —11— 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 provision of this Agreement, the Owner expressly acknowledges (1)that it has no pledge of or lien upon any On-Site Collection Facilities (including,specifically, any revenues or rates, fees or charges collected by the Utility in connection ahead the Utility's 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 all holders of any stocks,bonds, or notes of the Utility, whether currently outstanding of hereafter issued. SECTION 13. Remedies. The Utility shall have the right to enforce the provisions of this Agreement in the event that the Owner 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 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 or this Agreement by whatever means are provided by law or equity. In connection with any litigation between the Utility and a Owner including appellate proceedings arising out of this Agreement or the violation or 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 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 when (1) hand delivered to the official hereinafter designated, or (2) upon receipt of such notice —12— 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. Owner: TRIPLE H. PROPERTIES J.E. Hudson, Managing Partner 923 Observatory Court Orlando, Florida 32818 Utility: CITY OF OCOEE City Manager 150 North Lakeshore Drive Ocoee, Florida 34761 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 notice the other parties of the actual cure of any such defaults. • SECTION 16. Assignments. 16.1 Assignments by the Owner. Except as expressly provided herein, the Owner agrees not to assign or transfer any or all portions of 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 Owner. -13- 16.3 Binding Agreement on Successors. This Agreement shall be binding upon and shall inure to the benefit of the Owner, the Utility, and their respective successors and assigns. SECTION 17. Recordation. The parties hereto agree Grants of Easement created pursuant to this Agreement shall be recorded in the Public Records of Orange County, Florida, at the expense of the Owner. 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 or the Owner and the Utility shall survive the completion of the work of the Owner with respect to any phase and to the Owner'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 Owner is required to enforce this Agreement by court proceedings or other wise, then the prevailing party shall be entitled to recover from the other party all costs incurred, including reasonable attorney's 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. —14— SECTION 23. Entire Agreement. This instrument and its exhibits constitute the entire Agreement between the parties and supersedes all previous discussions, understanding, 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 Owner. IN WITNESS WHEREOF, the Owner 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: Name: S. Scott Vandergrift, Mayor Attest: Name: Jean Grafton, City Clerk "OWNER" TRIPLE H PROPERTIES,a Florida General Partnership By: -15- Name: J. E. Hudson Its: Managing Partner Name: FOR USE AND RELIANCE ONLY BY THE CITY OF OCOEE, FLORIDA. APPROVED AS TO FORM AND LEGALITY this day of , 1993. FOLEY & LARDNER APPROVED BY THE OCOEE CITY COMMISSION AT A MEETING HELD ON , 1993 UNDER By: AGENDA ITEM NO. -16- STATE OF FLORIDA COUNTY OF ORANGE I HEREBY CERTIFY, that on this day, before me, an officer duly authorized in the State and County aforesaid to take acknowledgements, personally appeared S. SCOTT VANDERGRIFT and JEAN GRAFTON, personally known to me to be the Mayor and City Clerk, respectively, of the CITY OF OCOEE, a Florida municipal corporation, and that they severally acknowledged executing the same in the presence of two subscribing witnesses freely and voluntarily under authority duly vested in them by said municipality and that they did not take an oath. WITNESS my hand and official seal their day of , 1993. Signature of Notary Name of Notary (typed, printed or stamped) Commission Number(ifnot legible on seal): My commission expires(if not legible on seal): STATE OF FLORIDA COUNTY OF ORANGE BEFORE ME,the undersigned authority,duly authorized to take acknowledgements and administer oaths,personally appeared J. E. HUDSON as Managing Partner,of TRIPLE H. PROPERTIES, a Florida General Partnership, who being first duly sworn upon oath, executed the foregoing instrument in my presence and swore and acknowledged that he signed the foregoing instrument for the purposes therein expressed. WITNESS my hand and official seal their day of , 1993. Signature of Notary Name of Notary (typed, printed or stamped) Commission Number(ifnot legible on seal): My commission expires(if not legible on seal): C:\WPS1\DOCS\OCOEE HUD•WATE.AGR19/17/93IORL RDWam —17—