III (B) Acceptance and Authorization for Mayor and City Clerk to Execute Agreement on Water/Sewer Revenue Maintenance Fees with Barry Goodman et al AGENDA 1-17-95
Item III B
"CENTER OF GOOD LIVING -PRIDE OF WEST ORANGE"
Ocoee
S.SCOTT VANDERGRIFT
( °/"
COMMISSIONERS
O. CITY OF OCOEE RUSTY JOHNSON
PAUL W.FOSTER
0 150 N.LAKESHORE DRIVE SCOTT A.GLASS
0 t1 OCOEE,FLORIDA 34761-2258 JIM GLEASON
�►�, ? (407)656-2322 CITY MANAGER
4f. Of 000V•s> ELLIS SHAPIRO
MEMORANDUM
DATE: January 13, 1995
TO: The Honorable Mayor and Board of City Commissioners
FROM: Montye E. Beamer, Director 9
Administrative Services
SUBJECT: Water and Sewer Revenue and Maintenance Fee Agreement,
Barry Goodman et al
Since the adoption of Resolution 92-13, there have been many discussions
concerning water and sewer revenue and maintenance fees and fee structure for the
Developers, Owners and Successors of the Agreements listed in the Recitals of the
attached Water and Sewer Revenue and Maintenance Fee Agreement. These
Developers, Owners and Successors will be referred to as Barry Goodman et al since
he collected all guaranteed revenues, balanced credits, and made certain that
payments were made in a timely manner.
Barry Goodman et al had, as previously stated, paid guaranteed revenues on sewer
capacity, the calculation being based on one (1) Equivalent Residential Unit equal to
350 gallons per day. The water agreements defined one (1) Equivalent Residential
Unit equal to 350 gallons per day; no payment was due until the adoption of
Resolution 94-17.
The Ocoee Comprehensive Plan as adopted in September 18, 1991 established one
(1) Equivalent Residential Unit for sewer as 270 gallons per day and water as 300
gallons per day. These original Barry Goodman et al agreements did not contemplate
such a change in the standard or its impact on fee calculation or transfer of capacity.
Prior to the summer of 1994, when the City executed other agreements for sewer
and water capacity the 270 gpd and 300 gpd respectively were assumed.
In order to formalize the discussions with Barry Goodman et al about these changes,
the attached agreement was written by the City Attorney and approved by Barry
Goodman and the group's legal counsel. The key elements of the agreement include:
(1) conversion of all sewer and water capacity to gallons utilizing the 350 gallons
per day for each one (1) Equivalent Residential Unit;
(2) a formula for payment that allows sewer and water revenue and maintenance
fees to be calculated on the basis of 270/350 and 300/350 with change only
occurring should a new gallons per day standard be adopted by the City
Commission;
(3) an increase by five (5) years the sewer capacity allocation thereby amending
its life from fifteen to twenty years; and,
(4) a payment schedule for all outstanding sewer and water revenue and
maintenance fees in keeping with payment requirements established for
Concurrency Management.
Staff recommends that the Mayor and Board of City Commissioners (1) approve the
agreement, (2) authorize the Mayor and City Clerk to execute and (3) instruct the City
staff to add this document, where applicable, to the Development Orders for both the
Lake Lotta Mall and Lake Lotta Center.
MEB/jbw
THIS INSTRUMENT PREPARED BY
AND SHOULD BE RETURNED TO:
R. Duke Woodson, Esq.
FOLEY&LARDNER
111 North Orange Avenue, Suite 1800
Post Office Box 2193
Orlando, FL 32802-2193
(407) 423-7656
with a copy to:
Thomas A. Cloud, Esquire
GRAY,HARRIS &ROBINSON,P.A.
201 East Pine Street, Suite 1200
Post Office Box 3068
Orlando, FL 32802-3068
(407) 843-8880 For Recordin ' .s.: •
WATER AND SEWER REVENUE
AND MAINTENANCE FEE AGREEMENT
THIS AGREEMENT is made and entered into as of the day of
, 1995, by and between the CITY OF OCOEE
(hereafter referred to as the "UTILITY" ) and the parties listed on
attached Exhibit "A" (hereafter referred to in the aggregate as the
"DEVELOPERS" and in the singular as the "DEVELOPER" ) , those parties
listed on attached Exhibit "B" (hereafter referred to in the
aggregate as the "OWNERS" and in the singular as the "OWNER" ) , and
those parties listed attached Exhibit "C" (hereafter referred to in
the aggregate as the "SUCCESSORS" and in the singular as the
"SUCCESSOR" ) . Exhibits "A, " "B" and "C" are by this reference made
a part of this Agreement.
RECITALS
1. The DEVELOPERS and OWNERS entered into new sewer
developers' agreements (the "New Agreements" ) with the UTILITY on
December 30, 1987, as listed on Exhibit "D" attached to and
incorporated in this Agreement.
2. As provided in Subsections 6.2 and 7 . 1 of the New
Agreements, the DEVELOPERS and OWNERS are required to pay
"Guaranteed Revenue and Maintenance Fees" to the UTILITY.
3. Residential Communities of America, Inc. , a Florida
corporation, entered into an agreement with the City of Ocoee known
as the City of Ocoee, Florida-Water Plant No. 4 Potable Water
Supply Agreement, dated January 24, 1984 (hereafter the "January
24, 1984 Potable Water Supply Agreement" ) .
4. Pursuant to this Agreement, Residential Communities of
America, Inc. , caused to be constructed the Forest Oaks Water
Treatment Plant.
5. The SUCCESSORS are successors in interest to Residential
Communities of America, Inc. , which under said Agreement had the
right to 1, 186 equivalent residential units ( "ERUs" ) of water
service capacity' t: :...... eiia ii } 35..0 .t f
.
6. The UTILITY agreed to provide water service capacity to
Lake Lotta, Ltd. , in a volume of 1,250 ERU's of water service
capacityx{:::: :x: :<: > e::::;IW ::>::::<::value:::>>::e. :. :a : :. ::I : #:<::::<:G Pursuant to an
agreement-' dated-Novennber»..2.2- :"`Y`9"8"8- `by""and`°between the UTILITY and
Lake Lotta, Ltd. This agreement shall hereafter be referred to as
the "November 22, 1988 Developers' Agreement for Water Service. "
7 . On July 31, 1989, the UTILITY and West 50 Water Line,
Inc. , entered into a construction agreement setting out the
parties' obligations for the construction by the corporation of a
water transmission main, which was accepted by the UTILITY on
January 21, 1991.
8. The UTILITY has heretofore adopted Article VI of Chapter
173 of the Code of the City of Ocoee entitled City Revenue and
Maintenance Fee. On August 18, 1992 the UTILITY adopted Resolution
No. 92-13 authorizing the implementation of a revenue and
maintenance fee for sewer and water permits to be paid annually or
monthly by all those UTILITY customers who possess City of Ocoee
sewer and/or water permits authorizing connection to any UTILITY
water or sewer treatment facility.
9. The CITY modified and increased its water and sewer
revenue and maintenance fees pursuant to City of Ocoee Resolution
No. 94-17, which was adopted on August 16, 1994, and is effective
October 1, 1994 .
10. In recognition of the prior guaranteed revenue fees paid
to UTILITY by the DEVELOPERS and OWNERS and their forbearance in
questioning past practices of the UTILITY, the parties hereto
modified and amended the Waste Water Developers ' Agreements by that
Amendment to City of Ocoee Waste Water Developers' Agreement Nos.
2
OWW-87-2, OWW-87-3, OWW-87-4, OWW-87-5, OWW-87-8, OWW-87-10, OWW-
87-11, and OWW-87-12, on October 1, 1992 (hereafter "October 1,
1992 Amendment" ) .
11. Some confusion has arisen in the calculation of capacity
entitlement, the basis for paying the revenue and maintenance fees
and the basis for use of water and waste water capacity under the
New Agreements, the January 24, 1984 Potable Water Supply
Agreement, and the November 22, 1988 Developers' Agreement for
Water Service.
12. The parties now wish to clarify these issues for once and
for all.
13. The UTILITY, the DEVELOPERS, the OWNERS, and the
SUCCESSORS hereby acknowledge and warrant to the other that this
Agreement and any future acts as required hereby are binding and
enforceable on the UTILITY, the DEVELOPERS, the OWNERS, and the
SUCCESSORS in accordance with their terms.
14 . Section 24 of the agreements listed in Exhibit "D"
hereof, the January 24, 1984 Potable Water Supply Agreement, and
Section 23 of the November 22, 1988 Developers' Agreement for Water
Service contemplate and require that amendments to and waivers of
the provisions of all those agreements must be made by the parties
in writing by formal amendment.
15. The UTILITY and the DEVELOPERS' and OWNERS' preceding
service company entered into certain stipulations and agreements as
set forth in paragraph 2 (h) of the two Judicial Stipulations in
December of 1987, and the Purchase and Sale Agreement of
December 3, 1987, which contemplates execution of an agreement such
as this Agreement.
16. For purposes of this Agreement, Lake Lotta, Ltd. , BML
Investments, PRN Investments, Jerome D. Feinstein, Jeffrey Yeager,
Trustee, and William and Leiser M. Colburn are not, and should not
be inferred as being developers or dealers even though they may be
referred to as such herein. Use of the term "developers" was done
to conform this document to prior UTILITY documents.
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 consideration
the receipt and sufficiency of which are acknowledged by the
parties, 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.
3
SECTION 2 . APPLICATION OF SEWER AND WATER REVENUE AND
MAINTENANCE FEES.
2 . 1. Notwithstanding anything to the contrary contained
in any agreement, contract, ordinance, or other document, the
UTILITY, the DEVELOPERS, the OWNERS, the SUCCESSORS, and their
successors or assigns, agree that when determining capacity
entitlement for water and/or sewer service capacity, any water or
sewer service capacity held by any of the DEVELOPERS, the OWNERS,
the SUCCESSORS, or their successors or assigns, shall be calculated
on a gallon per day ( "GPD" ) basis and any capacity needed for
development shall be calculated according to the then applicable
GPD value of an ERU as promulgated by the UTILITY.
2.2. Furthermore, the UTILITY agrees that the basis for
payment by the DEVELOPERS, the OWNERS, the SUCCESSORS, or their
successors and assigns, of the water and/or sewer revenue and
maintenance fees (collectively "FEES" ) shall be based upon an ERU
value of 350 GPD. The intent of this provision is that the FEES
paid by any of the DEVELOPERS, the OWNERS, the SUCCESSORS, or their
successors and assigns, shall be equal to:
1. In the case of the water FEES, the amount paid
per GPD shall be the amount charged per GPD by the UTILITY to all
users multiplied by 300/350, unless the UTILITY shall revise the
standard capacity for all. users, in which case the numerator shall
be the revised standard capacity.
2. In the case of the canitary sewer FEES, the
amount paid per GPD shall be the amount charged per GPD by the
UTILITY to all users multiplied by 270/350, unless the UTILITY
4
shall revise the standard capacity for all users, in which case the
numerator shall be the revised standard capacity.
The UTILITY agrees that it shall calculate the projected use of
those wishing to connect and utilize water and/or sewer capacity to
which the DEVELOPERS, the OWNERS, the SUCCESSORS, or their
successors and assigns, are entitled at 300 GPD for water service
and 270 GPD for sewer service unless the UTILITY shall revise the
standard capacity for all users. In other words, this is how the
UTILITY shall calculate projected usage for any collection,
distribution, or transmission system permit application presented
by any of the DEVELOPERS, the OWNERS, the SUCCESSORS, or their
successors or assigns, to be signed by the UTILITY and filed with
the Florida Department of Environmental Protection or successor
agency for utilization of the capacity entitlement discussed
hereinabove. The above stated criteria shall apply henceforth and
forevermore even though the amount charged for the FEES per ERU may
increase or decrease in the future (resulting in a higher or lower
payment by the DEVELOPERS, the OWNERS, the SUCCESSORS, or their
successors or assigns) . In consideration thereof, the DEVELOPERS,
the OWNERS, and the SUCCESSORS, or their successors and assigns,
agree to pay in accordance with the terms of this Agreement, all
applicable FEES at the per ERU value set forth in Resolution 94-17,
or as those FEES may be established from time to time by resolution
of the City adopted in accordance with Article VI of Chapter 173 of
the Code of Ordinances of the City of Ocoee.
2 .3. Due to the past uncertainty the parties have
experienced in resolving these matters and other considerations
5
herein contained, FEES called for under this Agreement, and
currently having been invoiced shall be due and payable no latcr
than ten ( 10) days from the date of execution of thio Agrccmcnt.a
1c
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0665MIKONtihaW
SECTION 3. AMENDMENT TO SUBSECTION 7.1. Subsection 7 . 1 of
all the new agreements listed on Exhibit "D" hereof is amended in
that the period of capacity allocation shall be twenty (20) years
from the date of original execution (instead of the 15 years
previously granted) . In all other respects, Subsection 7. 1 shall
remain unchanged and as the same as is now written but as amended
by Subsection 2 .2 of the October 1, 1992 Amendment to the New
Agreements, and as amended by this Agreement. Other than those
FEES specified in Section 2 hereof, no other rates, fees, or
charges shall be levied as a condition to the grant of this
capacity allocation period except for cuch ratcD, fee° or charges
SECTION 4. RATIFICATION OF RELEASE OF CLAIMS FOR PAST FEES
PAID BY DEVELOPERS AND OWNERS. The DEVELOPERS and the OWNERS
hereby ratify and confirm their past release of claims for past
fees paid by the DEVELOPERS and the OWNERS pursuant to Section 3 of
6
the October 1, 1992 Amendment to the Waste Water Developers'
Agreements.
SECTION 5. CONFIRMATION OF PERPETUAL ALLOCATION OF WATER
SERVICE CAPACITY. The parties hereto agree and confirm that there
are no time limitations placed upon the aforementioned allocation
or provision of water service capacity to the DEVELOPERS, OWNERS,
and/or SUCCESSORS, or their successors and assigns, and that so
long as the applicable water revenue and maintenance fees are paid
pursuant to this Agreement and the DEVELOPERS, OWNERS and/or
SUCCESSORS are not in default under the terms of any prior
agreements with th t
he CITY».;; '� .�...." ��:..::..:..,. diu.' .�<has-not< ; �. ? . ; �: :,
and the DEVELOPERS, OWNERS and/or SUCCESSORS comply with all
applicable provisions of Chapter 173 of the Ocoee City Code, then
in such events the aforementioned allocation of water service
capacity shall be held inviolate for use of the DEVELOPERS, OWNERS,
and/or SUCCESSORS, or their successors and assigns.
SECTION 6. EFFECT OF THIS AGREEMENT. Except as expressly and
specifically amended herein and in the October 1, 1992 Amendment to
the New Agreements, the New Agreements, the Purchase and Sale
Agreement of December 3, 1987, the two stipulations referenced in
Recital No. 15 hereof, as well as the January 24, 1984 Potable
Water Supply Agreement and the November 22, 1988 Developers
Agreement for Water Service, shall remain unchanged and in full
force and effect. The UTILITY, the DEVELOPERS, the OWNERS, and the
SUCCESSORS, or their successors and assigns, hereby ratify and
confirm the New Agreements, the October 1, 1992 Amendment, the
Purchase and Sale Agreement of December 3, 1987, the two
7
stipulations referenced in Recital No. 15 hereof, and the two water
supply and service agreements referenced above, and any prior
assignments thereof.
IN WITNESS WHEREOF, the parties hereto have hereunder executed
this Agreement as of the date and year first above written.
"UTILITY"
APPROVED:
CITY OF OCOEE, FLORIDA
By:
•S. Scott Vandergrift, Mayor
ATTEST:
By:
Jean Grafton, City Clerk
(SEAL)
FOR USE AND RELIANCE ONLY BY APPROVED BY THE OCOEE CITY
THE CITY OF OCOEE, FLORIDA COMMISSION AT A MEETING
APPROVED AS TO FORM AND HELD ON
1995,
LEGALITY this day of UNDER AGENDA ITEM NO.
, 1995.
FOLEY & LARDNER
By:
•City Attorney
8
STATE OF FLORIDA
COUNTY OF ORANGE
The foregoing instrument was acknowledged before me this day
of , 1995, by S. Scott Vandergrift, the Mayor, and Jean
Grafton, City Clerk of the City of Ocoee, Florida, on behalf of the
City of Ocoee, Florida. They are personally known to me .
(Signature)
(Print Name)
Notary Public
My Commission Expires:
WITNESSED: "DEVELOPERS"
RESIDENTIAL COMMUNITIES OF
AMERICA
(x) by and through its general
partner
Name:
ROLESHAR, INC. ,
a corporation
(x)
Name:
By:
Jerome D. Feinstein,
Title: President
(CORPORATE SEAL)
STATE OF FLORIDA
COUNTY OF
The foregoing instrument was acknowledged before me this
day of , 1995, by JEROME D. FEINSTEIN, President of
ROLESHAR, INC. , a corporation, as general partner of
RESIDENTIAL COMMUNITIES OF AMERICA, on behalf of the said
corporation and partnership. He is personally known to me or has
produced as identification .
(Signature)
(Print Name)
Notary Public
My Commission Expires:
9
WITNESSED: BML INVESTMENTS,
a partnership
(x)
Name: By:
Barry S. Goodman, General
(x) Partner
Name:
STATE OF FLORIDA
COUNTY OF
The foregoing instrument was acknowledged before me this
day of , 1995, by BARRY S. GOODMAN, General Partner of
BML INVESTMENTS, a partnership, on behalf of the
partnership. He is personally known to me or has produced
as identification .
(Signature)
(Print Name)
Notary Public
My Commission Expires:
10
WITNESSED: PRN INVESTMENTS,
a partnership
(x)
Name: By:
Norman A. Rossman, Managing
(x) General Partner
Name:
STATE OF FLORIDA
COUNTY OF
The foregoing instrument was acknowledged before me this
day of , 1995, by Norman A. Rossman, Managing General
Partner of PRN INVESTMENTS, a partnership, on
behalf of the partnership. He is personally known to me or has
produced as identification .
(Signature)
(Print Name)
Notary Public
My Commission Expires:
11
WITNESSED: JEFFREY YEAGER, Trustee
(x)
Name: By:
Jeffrey Yeager, Trustee
(x)
Name:
STATE OF FLORIDA
COUNTY OF
The foregoing instrument was acknowledged before me this
day of , 1995, by JEFFREY YEAGER, Trustee. He is
personally known to me or who has produced
as identification .
Signature
(Print Name)
Notary Public
My Commission Expires:
12
WITNESSED: CAMBRIA INC./CYPRESS CREEK
NURSERY, INC. ,
a corporation
(x)
Name: By:
William E. Colburn,
President
(x)
Name:
(x) By:
William E. Colburn,
Name: individually
(x)
Name:
STATE OF FLORIDA
COUNTY OF
The foregoing instrument was acknowledged before me this
day of , 1995, by WILLIAM E. COLBURN, as President of
CAMBRIA INC. /CYPRESS CREEK NURSERY, INC. , a
corporation on behalf of said corporation, and individually. He is
personally known to me or has produced
as identification .
(Signature)
(Print Name)
Notary Public
My Commission Expires:
13
WITNESSED:
Leiser M. Colburn,
individually
(x)
Name:
(x)
Name:
STATE OF FLORIDA
COUNTY OF
The foregoing instrument was acknowledged before me this
day of , 1995, by LEISER M. COLBURN, individually.
He/she is personally known to me or has produced
identification .
(Signature)
(Print Name)
Notary Public
My Commission Expires:
14
WITNESSED: WEST 50 JOINT VENTURE,
a joint venture
(x)
Name: By:
William J. Goodman, Trustee
(x)
Name:
STATE OF FLORIDA
COUNTY OF
The foregoing instrument was acknowledged before me this
day of , 1995, by WILLIAM J. GOODMAN, Trustee, of WEST
50 JOINT VENTURE, a joint venture, on behalf of the
joint venture. He is personally known to me or has produced
as identification .
(Signature)
(Print Name)
Notary Public
My Commission Expires:
15
WITNESSED: JEROME D. FEINSTEIN, as Trustee
(x)
Name: By:
Jerome D. Feinstein, as
Trustee
(x)
Name:
By:
(x) Jerome D. Feinstein,
individually
Name:
(x)
Name:
STATE OF FLORIDA
COUNTY OF
The foregoing instrument was acknowledged before me this
day of , 1995, by JEROME D. FEINSTEIN, as Trustee and
as an individual. He is personally known to me or who has
produced as identification .
Signature
(Print Name)
Notary Public
My Commission Expires:
16
WITNESSED: NJB INVESTMENTS, INC. ,
a corporation
(x)
Name: By:
William J. Goodman, President
(x)
(CORPORATE SEAL)
Name:
STATE OF FLORIDA
COUNTY OF
The foregoing instrument was acknowledged before me this
day of , 1995, by WILLIAM J. GOODMAN, President of NJB
INVESTMENTS, INC. , a corporation, on behalf of the
corporation. He is personally known to me or has produced
as identification .
(Signature)
(Print Name)
Notary Public
My Commission Expires:
17
WITNESSED: ALTAMONTE DEVELOPMENT
CORPORATION, a Florida
corporation
(x)
Name: By:
Barry S. Goodman, President
(x)
Name: (CORPORATE SEAL)
STATE OF FLORIDA
COUNTY OF
The foregoing instrument was acknowledged before me this
day of , 1995, by BARRY S. GOODMAN, President of
ALTAMONTE DEVELOPMENT CORPORATION, a Florida corporation, on behalf
of the corporation. He is personally known to me or has produced
as identification .
(Signature)
(Print Name)
Notary Public
My Commission Expires:
18
WITNESSED: G & F LAND COMPANY
a Florida corporation
(x)
Name: By:
Jerome D. Feinstein,
President
(x)
(CORPORATE SEAL)
Name:
STATE OF FLORIDA
COUNTY OF
The foregoing instrument was acknowledged before me this
day of , 1995, by JEROME D. FEINSTEIN, President of G
& F LAND COMPANY, a Florida corporation, on behalf of the
corporation. He is personally known to me or has produced
as identification .
(Signature)
(Print Name)
Notary Public
My Commission Expires:
19
WITNESSED: LWB HOMES, LTD.
a Florida limited partnership
By: RBA, INC. ,
a corporation,
general partner
(x)
Name: By:
Barry S. Goodman, President
(x)
(CORPORATE SEAL)
Name:
STATE OF FLORIDA
COUNTY OF
The foregoing instrument was acknowledged before me this
day of , 1995, by BARRY S. GOODMAN, President of RBA,
INC. , a corporation, as general partner of LWB HOMES,
LTD. , a Florida limited partnership, on behalf of said limited
partnership and corporation. He is personally known to me or has
produced as identification .
(Signature)
(Print Name)
Notary Public
My Commission Expires:
20
WITNESSED: SIENA HOME CORPORATION,
a Florida corporation
(x)
Name: By:
Barry S. Goodman, President
(x)
(CORPORATE SEAL)
Name:
STATE OF FLORIDA
COUNTY OF
The foregoing instrument was acknowledged before me this
day of , 1995, by BARRY S. GOODMAN, President of SIENA
HOME CORPORATION, a Florida corporation, on behalf of the
corporation. He is personally known to me or has produced
as identification .
(Signature)
(Print Name)
Notary Public
My Commission Expires:
r
21
LAKE LOTTA, LTD. , a Florida
limited partnership
By: Lotta GP, Inc. , a Florida
corporation, its managing
general partner
Witnesses:
(x) By:
Name: Barry S. Goodman
Name: President
(x)
Name:
STATE OF FLORIDA
COUNTY OF
The foregoing instrument was acknowledged before me this
day of , 1995, by BARRY S. GOODMAN, as
President of LOTTA G.P. , INC. , a Florida corporation, which is
managing general partner of LAKE LOTTA, LTD. , a Florida limited
partnership, on behalf of said partnership and corporation. He is
personally known to me or has produced as
identification.
Signature of Notary Public
(Print Notary Name)
My Commission Expires:
Commission No. :
22