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HomeMy WebLinkAboutItem III (B) Acceptance and Authorization for Mayor and City Clerk to Execute Owners Agreement for Sewer Service with Colony Plaza AGENDA 12-20-94 o` • Item III B • f k -011) ; vC %R © sem �r`'*o� 000a`��� JAMES W.SHIRA,P.E. CITY ENGINEER/UTILITIES DIRECTOR 150 N.LAKESHORE DRIVE•OCOEE,FLORIDA 34761 (407)656-2322 MEMORANDUM DATE: December 16, 1994 TO: The Honorable Mayor and Board of City Commissioners FROM: James W. Shira, City Engineer/Utilities Director SUBJECT: Owner's Agreement for Sewer Service- Colony Plaza Hotel Attached for your review and action is an agreement between the City of Ocoee and Downey Savings&Loan Association(Downey), current owner of the Colony Plaza Hotel, by which the City grants sewer service to the Hotel. Downey has paid a Sewer Capital Charge to the City in the amount of$350,160.30 for 122.22 ERU's of sewer capacity. This agreement will enable the Colony Hotel to discontinue use of their on-site sewer plant, and connect to the City's sewer system. The Hotel has been under pressure from the Orange County Environmental Protection Department to discontinue use of the on-site system due to poor treatment and disposal performance. The Hotel will construct a connection to our existing system, with all work being subject to inspection by the City. All parts of the "new" Hotel system that are located on the Hotel's property will remain the ownership and maintenance responsibility of the Hotel. This Owner's Agreement for Sewer Service has been approved by the City Attorney, and the funds have been received and deposited by the City. I recommend that the City Commission authorize the Mayor and City Clerk to execute the attached Owner's Agreement for Sewer Service between the City of Ocoee and Downey Savings &Loan Association on behalf of the City. THE PRIDE OF WEST ORANGE LAW OFFICES ENGELS, PERTNOY, SOLOWSKY & ALLEN, P.A. RICHARD L. ALLEN 21ST FLOOR DARIN S. ENGELHARDT INTERNATIONAL PLACE MARTIN ENGELS JOSEPH J. GERSTEN 100 SOUTHEAST 2ND STREET ALFRED I. HOPKINS ADAM B. LEICHTLING MIAMI, FLORIDA 33131 SIDNEY M. PERTNOY JAY H. SOLOWSKY TELEPHONE(305)371-2223 OF COUNSEL BROWARD(305)522-5688 STEVEN H. BROTMAN FAX(305)373-2073 December 13, 1994 Mr. James W. Shira, P.E. City Engineer/Utilities Director City of Ocoee 150 North Lakeshore Drive Ocoee, Florida 34761 Re: Colony Plaza Hotel Dear Mr. Shira: In response to your letter of November 4, 1994, I enclose the following: 1. Two counterparts of"Owners Agreement for Sewer Service"duly executed on behalf of Downey Savings and Loan Association. 2. My revised opinion of title. 3. Additional check for$57.30 to the order of City of Ocoee, Florida for the hook-up charge. Kindly return one fully executed copy of the Agreement to the undersigned. Again, thanking you for your cooperation, I am, zSinc ely you s, t✓ ALFR " I L HOPKINS -� _ ^ ___, AIH:wpd:pw Enclosures \c' DEC 151994 Di OPINION OF TITLE WHEREAS, the City of Ocoee, Florida ("City") and Downey Savings and Loan Association ("Downey") are preparing to execute a "Owners Agreement for Sewer Service" respecting the property legally described in Exhibit "A" appended hereto ("Property"); and WHEREAS, said Agreement contemplates Downey's furnishing the City with sewer line easements over and across portions of the Property; and WHEREAS, the City requires, pursuant to said Agreement, an Opinion of Title from Downey's counsel respecting the Property; and WHEREAS, the undersigned is an member of the Florida Bar and counsel to Downey. NOW THEREFORE, the undersigned does hereby certify to the City that Downey is the owner of the Fee Simple Title to the Property, subject to the following matters: 1. 1994 ad valorem taxes. 2. Any municipal liens not of record. 3. Rights or claims of parties in possession not shown by the Public Records. 4. Encroachments, overlaps, boundary line disputes, and any other matters which would be disclosed by an accurate survey or inspection of the premises. 5. Easements or claims of easements not shown by the Public Records. 6. Items 1 through 18 set forth in Exhibit "B" hereto. 7. The effective date of this Opinion of Title is August 9, 1994 at 11:38 a.m. Respectfully submi a.A / / � ALFRE4 I. HOPKINS DADOWNEY'BSL\OP-T ITLE.DOW LEGAL DELC:iIPTIONI i _.ot ]c II, I. Z egin aL the Southwest corner of the No 1! Northeast .Qu�rter of the Northeast Northeast Quarter of the :'I • 22 South, Range 28 East, Orange County.. r Quarter of Section 30, Township �! Iloridn, thence North 00 degrees 20 minutes 00 seconds West along the Wert line of said Northeast Quarter uf the Northeast Quarter of a distance of 225_51 feet; thence Nc rt.h t9 degre'ese 40 Northeast Quarter seconds East 93_0 feet, minutes 00 '1 thence Nortt 44 degrees 36 minutes 28 III seconds East 52_0 (cut: thence North 64 degrees 57 minutes 34 I'1 seconds East 114_16 feet; thence South 45 degrees 23 minutes 32 . seconds East 80.0 -feet: thence Worth 89 degrees 37 minutes 54 seconds East : '1 290.0 feet; thence North 00 degrees 20 �I nutes OD seconds West 133.0 feet: thence North 89 degrees 37 minutes 54 - seconds East 37.00 feet: thence South 00 degrees 20 minutes 00 seconds East parallel to and 40 feet West of the East I, said Section a distance of 386.37 feet to the South line of the said Northeast Quarter of the Northeast Quarter] thence South 89 degrees Quarter of the Northeast feet to the point of beginning. 38 iaiautes 03 seconds Hest 617_06 gin'iinq_ i i • Lot 2s i Commence at the Southwest corner of �' Northeast the Northeast 30. of the 'I' Quarter of the Northeast Quarter of Section 30, Township 22 South, Range 28 East. Orange_County, Floridaf thence North 00 _ II degrees 20 minutes 00 seconds West along the West line of said 2ortheast Quarter of the Northeast a distance of Quarter of the Northeast 1 225_51 feet for a point of beginning: Quarter dre�rees 40 minutes 00 seconds East 93_0 feet; thence e North 44 de 89 36 minutes 28 seconds East 52.0 feet: thence North c64 decrees 57greC- minutes 34 seconds East 114_16 feet; li:' minutes 32 second:. East 80_0 thence South <S degrees 23 • minutes S4 secondsfeet: thence North 89 degrees 37 Ii East 290_0 feet; thence North 00 degrees 20 ' I minutes 00 seconds West -133_0 i minutes feet; thence South 89 degrees 37 [ il minutes 54 seconds West 163.00 feet; thence North 00 degrees 20 miRoadoNo. S0; thence South c89 degreese S37tminutes 54 seh right of conQsc for Stateli t along said right nee of the Northeast y line 417_06 feet to the said wert line 0 .'° Quarter th Quarter of the Northeast Quarter of the Northeast thence South 00 degrees 20 minutes 00 seconds East 360_88 is feet to the _point of beginning.- - . LOT 3: hLRT!! 309_61 F% GF SE x GF UE t R{40_ 29 EAST OF NE OF S£CTIQ7 !!1 3G, TON;tSP 22 SO:+IN, LESS: TFT Fc0.1L R1(711-0E-WAY F COUNTY FLORIDA_ O:c >s^l1fRc ROA:,) 09At;,_ ; i I EXHIBIT A. • EXHIBIT B 1. Taxes and assessments for the current year unless noted as Paid. 2. Assessments and/or improvement liens, pending and certified. 3. Rights or claims of parties in possession not shown by the public records. 4. Encroachments, overlaps, boundary line disputes, and any other matters which would be disclosed by an accurate survey or inspection of the premises. 5. Easements or claims of easements not shown by the public records. 6. Any claim that any part of said land is owned by the State of Florida by right of sovereignty, and riparian rights, if any. 7. Easement in favor of Florida Power Corporation, its successors and assigns, dated July 8, 1968, filed August 28, 1968 in Official Records Book 759, Page 727, Public Records of Orange County, Florida. 8. Easement in favor of Florida Power Corporation, its successors and assigns, dated July 22, 1968, recorded August 28, 1968 in Official Records Book 1759, page 728, Public Records of Orange County, Florida. 9. Easement in favor of Florida Power Corporation, its successors and assigns, dated July 22, 1968, filed August 28, 1968 in Official Records Book 1759, Page 729, Public Records of Orange County, Florida. 10. Easement in favor of Florida Power Corporation, dated June 11, 1968, filed July 24, 1969 in Official Records Book 1855, Page 464, Public Records of Orange County, Florida. 11. Easement in favor of Florida Power Corporation dated July 16, 1973, filed October 10, 1973 in Official Records Book 2458, Page 1618, Public Records of Orange County, Florida. 12. Certificate of Establishing Water Basin Boundaries of the Southwest Florida Water Management District recorded December 28, 1961 in Official Records Book 992, Page 634, Public Records of Orange County, Florida. 13. Realigning the boundaries of the Oklawaha River Basin Resolution No. 653 recorded October 18, 1976 in Official Records Book 2735, Page S39, Public Records of Orange County, Florida. 14. Sewer Service Territorial Agreement by and between Orange County, a political subdivision of the State of Florida, and Prima Vista Utility Company, Inc., a Florida Corporation, contained in the agreement dated June 8, 1987, filed June 10, 1987 in Official Records Book 3894, Page 1363 and amended in Official Records Book 4702, Page 2589, Public Records of Orange County, Florida. 15. Water Service Territorial Agreement by and between Orange County, a political subdivision of the State of Florida, and the City of Ocoee, Florida, a municipality created under Florida law and located in Orange County, Florida, contained in the agreement dated November 14, 1988, filed November 23, 1988 in Official Records Book 4034, page 291 and amended in Official Records Book 4702, Page 2576, Public Records of Orange County, Florida. 16. Rights of tenants occupying all or part of the insured land under unrecorded leases or rental agreements. 17. Resolution No. 85-3 recorded in Official Records Book 3613, Page 2368, Public Records of Orange County, Florida. 18. Ordinance No. 734 recorded April 9, 1991 in Official Records Book 4275, Page 4894, Public Records of Orange County, Florida. - 2 - Return to and Prepared By: David . Barker, Esq. Foley & Lardner, P.O. 2193 Orlando, Florida 32802-2193 (407) 423-7656 OWNER'S AGREEMENT FOR SEWER SERVICE THIS OWNER'S AGREEMENT FOR SEWER SERVICE is made this day of , 1994, by and between the CITY OF OCOEE (hereinafter referred to as "Utility"), and DOWNEY SAVINGS & LOAN ASSOCIATION, a California corporation (hereinafter referred to as "Owner"), its successors in interest and assigns. RECITALS: SECTION 1. The Owner owns certain property located in Orange County, Florida, more particularly described in attached Exhibit "A", and is improved with the Colony Plaza Hotel. Said property is hereinafter referred to as "Property", or "the Owner's Property." SECTION 2. The Owner presently has in existence on the Property, a sewage package plant which has serviced the hotel since its inception. Owner is required by the Orange Country Environmental Protection Department to discontinue its privately owned sewage collection plant, and connect instead with the sewer system provided by the Utility. SECTION 3. The sewer service capacity for the Owner shall be provided in the manner described below and subject to the terms and conditions provided herein. SECTION 4. The Utility shall provide sewer service capacity to the Owner in accordance with and subject to the terms and conditions of this Agreement, applicable rules, regulations, laws, and requirements. SECTION 5. 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 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 Owner'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-Site Collection Facilities" means the Collection Facilities and Transmission Facilities used to provide Sewer Service to Owner's Property but not located on that Owner's Property. 2.4. "On-Site Facilities"means that portion of the collection Facilities used to provide Sewer Service to Owner's Property and located within the Owner's Property. 2.5. "Point of Connection" means the manhole located adjacent to the Owner's Property situated along S.R. 50 approximately 200 feet east of the main - 2 - entrance to the Owner's hotel. 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 OCOEE,its successors or assigns. 2.8. "Utility's System"means all Sewage Facilities and interest in real or personal property owned, operated, managed or controlled by the Utility now and in the future and used to provide Sewer Service to existing and future customers. 2.9. "Customer" shall also mean "Owner". SECTION 3. Design, Construction and Operation of On-Site Collection Facilities. The Owner agrees as a condition precedent to its receipt of Sewer Service Capacity to do the following: 3.1. Design of On-Site Collection 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. 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's submitting such Plans and Specifications shall make corrections and/or modifications to any portion of the Plan 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 - 3 - 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 Collection Facilities 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 or defective design, (2) faulty or defective construction, (3) unsettled liens and encumbrances, and (4) tort claims. - 4 - SECTION 4. Construction of Facilities. 4.1. General. The Owner shall construct and install, at its own expense,the On-Site Collection Facilities necessary for connection to the Off-Site Collection 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 rights of ingress and egress on to Owner's Property, for purposes of servicing any On-Site collection Facilities constructed by the Owner, in the connection of the On-Site Collection Facilities to the Off-Site Collection Facilities as described herein. 5.3. Private Property Installations. In the event mains, lines or facilities are to be installed in land within 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 Sewer Facilities outside a dedicated easement area, or private easement area conveyed by - 5 - 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 sewer industry with respect to the installation of all such facilities in any of the easement areas to service the Owner's Property, 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 to grant rights, privileges and easements to other persons, firms or corporations to provide to the Owner's Property any Utility services other than sewer 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 successor 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 - 6 - operation or maintenance of said sewage facilities. SECTION 6. Rates, Fees, and Charges. As a condition to the provision of Sewer 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 Sewer 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 and 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 Sewer Service Capacity to the Owner's Property. 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 Owner, upon any person or other entity holding by, through or under the Owner, and upon any user or customer of the Sewer Service Capacity provided to the Owner's Property. 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: - 7 - (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. SECTION 7. Allocation and Payment. The Owner is hereby allocated 122.22 equivalent residential units of capacity. This allocation is subject to revision based upon future data in accordance with Chapter 173 of the Code of Ordinances of the City of Ocoee. This future data will consist of water and waste water flow records from April 1990 to a date not later than twelve (12) months after the actual connection to the Utility is made. Failure to submit this data with a written request for allocation revision within fifteen (15) months from the actual connection to the Utility may constitute a waiver of any claim the Owner may have to an allocation revision. At the time of execution of this Agreement, the Owner shall pay to Utility its - 8 - Sewer Charges in the amount of Three Hundred Fifty Thousand One Hundred Sixty 30/100 Dollars ($350,160.30). SECTION 8. Allocation and Provision of Sewer Service Capacity. 8.1. Provision of Sewer Service. Upon connection of the On-Site Facilities to Off-Site Facilities owned by the Utility, the payment of applicable rates, fees and charges, the Utility agrees to continuously provide sewer 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 its obligations under this Contract. SECTION 9. Owner 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 (1) 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 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: - 9 - (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. 9.3. 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 - 10 - 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 purpose 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 sewer utilities, or otherwise, 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, - 11 - expenses,fees,fines,penalties,suits, 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 any wrongful 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 improper 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 or any part of the Utility's system. Any indemnification provided in this section shall arise solely from the obligations and actions specified in this particular Agreement. 12.3. Force Majeure. 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 or 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; 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 - 12 - 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. 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. 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 of this Agreement by whatever means are provided by law or equity. In connection with any litigation between the Utility and Owner 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 rights under this Section 13 hereof shall not be made arbitrarily or capriciously and shall be subject to the Utility's rules and regulations, to applicable law, and to the notice and default provisions of Section 15 hereof. - 13 - 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 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. As to Owner: Downey Savings Sc Loan Association 3501 Jamboree Road Newport Beach, California 92660 Attn: Ms. Bonnie Lawson, Vice President With a Copy to: Alfred I. Hopkins, Esq. Engels, Pertnoy, Solowsky & Allen, P.A. International Place 100 S.E. 2nd Street, Suite 2100 Miami, Florida 33131 As to 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(30) 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. Assignment by the Owner. The Owner may assign its interest under this Agreement to a person or entity whose financial responsibility shall have been approved in writing by Utility and which person or entity shall assume all the obligations - 14 - of the Owner under this Agreement, whereupon the Owner shall be released from all of its obligations under this Agreement. The Utility's approval of such person or entity shall not be unreasonably withheld. 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. 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. 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 20. Recovery of Costs and Fees. In the event the Utility or the Owner 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 - 15 - reasonable attorney's fees, whether incurred prior to, during or subsequent to such court proceedings or on appeal. SECTION 21. 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 22. 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 23. 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: Signature S. Scott Vandergrift, Mayor Name (typed or printed) Attest: Jean Grafton, City Clerk Signature Name (typed or printed) - 16 - OWNER DOWNEY SAVINGS & LOAN ASSOCIATION, a California corporation Sigt ature TiQ v�c —Gc�E�l�� 7ve Bonnie M. Lawson, Vice President Name (typed or printed) FOR USE AND RELIANCE ONLY BY THE CITY OF OCOEE, FLORIDA. APPROVED AS TO FORM AND LEGALITY this day of 1994. FOLEY & LARDNER APPROVED BY THE OCOEE CITY COMMISSION AT A MEETING HELD ON , 1994 UNDER AGENDA ITEM NO. By: STATE OF FLORIDA ) ) SS: 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 in the County and State last aforesaid this day of , 1994. My Commission Expires: NOTARY PUBLIC STATE OF FLORIDA Print Name: Commission No: - 17 - STATE OF CALIFORNIA) ) SS: COUNTY OF ORANGE ) BEFORE ME, the undersigned authority, duly authorized to take acknowledgements and administer oaths, personally appeared BONNIE M. LAWSON, as Vice President of DOWNEY SAVINGS & LOAN ASSOCIATION, who being first duly sworn upon oath, executed the foregoing instrument in my presence and swore and acknowledged that she signed the foregoing instrument for the purposes therein expressed. WITNESS my hand and official seal this --6- -h day of lc ce s&x , 1994. aee..ze...• ' toy- ''- My Commission Expires: G- 9-9f NOT• ' Y PUBLIC STATE OF CALIFORNIA L<<<"4. JANICE GENELLE Print Name: 7etrvicc-- ���zt_-• t COMmISStON #1029437 ei ---gets...,.:),0 Notary Public- C.;ilornia _ .r ORANGE COUNTY O J"�- My Commi Sion Expires JUNE 9, 1998 D:\DOWNEY\BSLWG-OWNER.SEW - 18 - 8 s I l .l }` i '1 _ ! LEGAL Dc;CRIPTIO:: :_cit Is il II Tiepin at the Southwest corner of the Northeast Quarter of the Northeast _Quarter of the Northeast Quarter of Section 30, Township j • 22 South, Range 28 Last, Orange County, rlorida, thence ]forth 00 degrees 20 minutes 00 seconds West olor.g the Wert lire of said li Northeast Quarter of the Northeast Quarter of the Nortl.cast Quarter a distance of 225_5I feet: thence Nt-rth t9 degrees 40 minutes 00 seconds East 93_0 feet: thence Nort44 uegrees 36 minutes 2h seconds East 52.0 fet-t: thence North 64 degrees 57 minutes 34 �' t seconds East 114_16 feet; thence South 4S degrees 23 minutes 32 _ seconds East 80-0 -feet; thence Worth 89 deg=cec 37 minutes 54 seconds East 290_0 feet; thence North 00 degrees 20 �� • • seconds West 133_0 feet: thence North 89 degrees 37 minutes 00 I� seconds East 37_00 feet; second: East thence South 00 degrees 20 minutes 00 .. parallel to and 40 feet West of �' said Section a distance of the East line of , said Northeast 386_37 feet to the South line of the Quarter of the Northeast Quarter of the Northeast Quarter; thence South 89 degrees 38 minutes 03 seconds West 617_06 � '' _feet to the point of beginning_ j i Lot 2r I i I Commence at the Southwest corner of the Northeast ;II Northeast Quarter of the NortheastQuarter o the 22 South. Range 28 East Quarter of Section 3Q, :bvns2iip ii: 22 Secs 20 • Orange_County, Florida: thence North 00 _ 9 minutes 00 seconds West along the West line of saidili 1 Northeast Quarter of the Northeast Quarter of the Northeast a distance of 22S_51 feet fora Quarter degrees 40 minutes 00 seconds East 93-0 thence North 44: thence rdegree_ 9 36 minutes 28 seconds East 52_O feet; thence North 64 decrees S7 minutes 34 seconds East I14_I6 feet, '• minute: 32 seconds East ; thence South 45 degrees 23 • � 1 minutes 54 seconds 80-0 feet: thence North 89 degrees 37 7 � minutes 00 seconds West -133_0 feet; thence South 89 degrees 37 t 290-0 feet; thence North 00 degrees 20 minutes 54 seconds West 163_00 feet; thence North 00 degrees 20 minutes 00 seconds West 200_0 feet to the South right of way line for I' State Road No. SO; thence South 89 degrees 37 minutes 54 cccorids ' West along said right .of.way Zine 417_06 feet to the said Wert line I1 �' of the Northeast Quarter of the Northeast Quarter of the Northeast Quarter thence South 00 degrees 20 ainutes 00 seconds East 360_83 ! ' feet to the .point of beginning.- - LOT 3: ii 309_fis FT. GF SE X OF fid X iit,RT " RGRT 29 EAST OF hEt OF SECTIO.: 3G, 'i ` (LESS: TICETi,T Y, RI�R_OF_ y F 70ili1SifiP 22 SC:+IN, :i CGUHTY FURID.:_ FCA FL:GIitRE R7f.;1)_ Orli►:r,_ . i I 1 EXHIBIT A.