Item III (D) Approval - Approval and Authorization to Execute Developer Agreement for Water/Sewer Capacity - Orange Bank ��., 1 L AGENDA 2-19-91
ITem III D
FOLEY & LARDNER, VAN DEN BERG, GAY, BURKE, WILSON & ARKIN
III NORTH ORANGE AVENUE, SUITE 1000
ORLANDO, FLORIDA 32801 - 2386
TELEPHONE (407) 423-7000
FACSIMILE (407) 040- 1743
FOLEY & LARDNER
IN MILWAUKEE, WISCONSIN MAILING ADDRESS: MADISON, WISCONSIN
FOLEY & LARDNER 1•0111T OFFICE SOX 2153 CHICAGO, ILLINOIS
ITASCA, ILLINOIS
77? EAST WISCONSIN AVENUE ORLANDO, FL 38502 . 2193 WASHINGTON, O. C.
MILWAUKEE, WIN. 53205 • 5367 ALEXANDRIA, VIRGINIA
TELEPHONE (4141 071-2400 ANNAPOLIS, MARYLAND
JACKSONVILLE, FLORIDA
TELEX 26-SIS TALLAHASSEE, FLORIDA
TAMPA, t=LORI PA
WEST PALM BEACH, FLORIDA
MEMORANDUM
TO: The Honorable Mayor and
City Commission •
THROUGH: Paul E. Rosenthal
FROM: Thomas K. Maurer
DATE: February 15, 1991
RE: Orange Bank Developer's Agreement
The City held a capacity sale on January 8, 1991. The following
purchases were made:
Orange Bank 18 Water ERU's $ 966. 00
(Coventry Phase III)
First Equity Dev. 32 Water ERU's 30, 912 . 00
(Lake Lily Oaks) 32 Sewer ERU's 91, 680. 00
Sumac Partners 75 Water ERU's 74,450.00
(Waterside) 75 Sewer ERU's 214,875.00
All of the developers have paid for their capacity. The Developer
Agreements for First Equity and Sumac are under negotiation. The
Orange Bank Developer's Agreement is completed and attached. We
recommend approval of the orange Bank Agreement at this time.
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08/01/90
DEVELOPER'S AGREEMENT POR WATER BERVICI
THIS DEVELOPER'S AGREEMENT FOR WATER SERVICE is made
this day of , 1990, by and between the CITY OF
OCOEE (hereinafter referred to as the "Utility") , and
ORANGE BANK, a Florida corporation (hereinafter referred to
as the "Developer") .
R E J ITALS
1. Th. Developer owns certain property located in
Orange County, Florida, more particularly described in Exhibit "A,"
attached to and by this reference made a part hereof. Said
Property is hereafter referred to as the "Property" or the
"Developer's Property."
2. The Developer has constructed or will construct
certain improvements on its Property which require or will
require substantial Water Service Capacity. Said improvements
shall hereafter be referred to in the aggregate as the
"Improvements."
3. Water Service Capacity for the Improvements shall
be provided in the manner desribed below and subject to the
terms and conditions provided herein.
4. The Utility is willing to provide Water Service
Capacity to the Developer in accordance with and subject to the
• terms and conditions of this Agreement and applicable rules,
regulations, laws and requirements.
5. The Developer requires and relies on Water Service
Capacity and other public services from the Utility in order to
develop its respective property.
6. The Utility and the Developer hereby acknowledge
and warrant to each other that this Agreement and any future
acts as required hereby are binding and enforceable on the
Utility and the Developer in accordance with their terms.
PREPARED BY AND RETURN TO:
Thomas K. Maurer, Esquire
Foley & Lardner
111 North Orange Avenue, Suite 1800
Post Office Box 2193
Orlando, Florida 32802-2193
(407) 423-7656 ^^
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ACCORDINGLY, in consideration of the Recitals hereof,
for and in consideration of the mutual undertakings and
agreements herein contained and assumed, and other good and
valuable considerations received by each party from the other,
the receipt and sufficiency of which are hereby acknowledged,
the parties hereto do hereby agree as follows:
SECTION 1. RECITAL$. The above recitals are true and
correct, and form a material part of this Agreement.
SECTION 2. DEFINITION. The parties agree that in
construing this Agreement, the definitions in Chapter 22 of
the Ocoee Code of Ordinances shall apply and the following words,
phrases, and terms shall have the following meanings unless the
context requires otherwise:
2.1 "Agreement" means this Developer's Agreement, as
it may be amended from time to time.
2.2 "Customer Installation" means all Water Facilities
on the customer's side of the Point of Distribution.
2.3 "Off-Site Facilities" means the Distribution Facilities
used to provide Water Service to a Developer's Property but not
located on that Developer's Property.
2.4 "0n-Bite Facilities" means that portion of the
Distribution Facilities used to provide Water Service to a
Developer's Property and located within the Developer's Property.
2.5 "Point of Distribution" means the point chosen by
the Utility where the Distribution Facilities are connected to
the Primary Water Main.
2.6 "Treatment Facilities" means those Water
Facilities used for the treatment of Water in accordance with
applicable governmental rules and regulations.
2.7 "Utility" means the CITY OF OCOEE, its successors
or assigns.
2.8 "Utility's System" means all Water Facilities and
interests in real or personal property owned, operated, managed
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or controlled by the Utility now and in the future and used to
provide Water Service to existing and future customers.
SECTION 3. DESIGN CONSTRUCTION AND OPERATION OF
ON-SITE FACILITIES. The Developer agrees as a condition
precedent to its receipt of Water Service Capacity to do the
followings
3.1 Design of On-Site Faoiliti•$. The Developer shall,
at its expense, cause its own Florida registered professional
engineer to design and produce and submit in writing to the
Utility for its review, and approval or rejection prior to
construction, graphic Plans and Specifications for the construction
of the On-Site Facilities to be located on that Developer's
Property. Said Plans and Specifications may be limited to the
first Phase only, and Plans and Specifications for subsequent
Phases may be furnished from time to time. The Developer may
modify its Plans and Specifications at any time with the consent
of the Utility, which consent shall not unreasonably be withheld,
provided such modification does not unduly interfere with existing
facilities or commitments and is otherwise consistent with the
ordinances and resolutions of the City Commission of the City of
Ocoee and the Utility's Tariff. In the event that a Developer
requests a modification in its Plans and Specifications which
would result in an increase in the Water Service Capacity needed
for the development, the Utility may allow the modification, deny
the modification, or require the Developer to enter into a new
Developer's Agreement containing such terms and conditions as the
Utility may require. In the event the Developer is required to
enter into a new Developer's Agreement under this paragraph such
new Agreement with regard to any prior held Water Service Capacity
shall be identical to this Agreement in all respects with regard
to the prior held Water Service Capacity. Any new Water Service
Capacity shall be governed by the then existing and applicable
rates and regulations of the Utility.
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3.2 Approval of Plans and Aper oations for On-Sit,
Facilities. The Utility shall review, and reject or approve, any
such Plans and Specifications submitted pursuant to Subsection
3.1 hereof. The engineers of a Developer submitting such Plans
and Specifications shall make corrections or modifications to any
portion of the Plans and Specifications which are unacceptable to
the Utility at the Developer's expense, and shall resubmit the
corrected or modified Plans and Specifications to the Utility for
further review until the Utility shall have approved the Plans
and Specifications. The Utility's determination that such Plans
and Specifications are unacceptable shall not be made arbitrarily
or capriciously. The Plans and Specifications shall be valid for
one year from the date of approval by the utility/ provided that
an extension of time may be granted by the Utility if the Developer
is proceeding in good faith and presents reasonable grounds for
an extension of time.
3.3 Permitting. Each Developer shall, at its expense,
obtain all necessary state and local permits or approvals
required for the construction of the On-Site Facilities to be
constructed upon that Developer's Property pursuant to this
Agreement. Each Developer shall send written copies of all
permit applications filed with state or local governmental
entities to the Utility, and shall also provide the Utility with
copies of all written permits, approvals, requests for
additional information, or denials received by the Developer in
connection with such permit applications.
3.4 Construction of On-site Facilities. After the Utility
approves the Plans and Specifications for any phase or portion of
the On-site Facilities submitted by the Developer upon whose prop-
erty the On-Site Facilities are to be located, that Developer
shall, at its own expense, construct and install that phase or
portion of the On-Site Facilities as the same are depicted in the,
Utility-approved Plans and Specifications therefor. Each Developer
warrants that the On-Site Facilities to be constructed by it pur-
suant to this Agreement shall be constructed in accordance with
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the Utility-approved Plans and Specifications, and also in accor-
dance with all other applicable federal, state and local laws,
regulations, rules and ordinances. The Developer shall provide
the utility thirty days notice prior to initiation of construction
of each phase or portion of the On-Site Facilities. All construction
of the On-Site Facilities to be constructed or installed by the
Developers hereunder shall be done by contractors approved in
advance by the Utility as competent to perform such work. The
Utility's approval of such contractors shall not be unreasonably
withheld.
3.5 Inapectiont_ Testing and Approval of Construe-
tion. During the construction of On-Site Facilities by a Developer,
the Utility shall have the continuing right to inspect such instal-
lations to determine compliance with the Plans and Specifications
for said facilities. The Utility shall control the quality of
the installation, and further, shall be entitled to perform standard
tests for pressure, infiltration, exfiltration, line and grade,
and all other normal engineering tests to determine that the system
has been installed in accordance with the Plans and Specifications
and good engineering practices. Each Developer agrees to pay to
the Utility, or the Utility's authorized agent, a reasonable sum
to cover the cost of inspection of installations made by that
Developer or its contractor, which charge shall be as provided in
Subsection 6.3 hereof.
3.6 Acceptance and Conveyance of Dedication of
Facilities and Easements.
(1) Each Developer agrees that after comple-
tion of construction and prior to acceptance or approval of such
Facilities by the Utility, the Developer constructing or instal-
ling such Facilities shall furnish to the Utility one set of Mylar
"as-built" drawings showing specifications, locations, depth and
other appropriate details of all Water Facilities as located by a
licensed surveyor along with three prints of the "as-built" draw-
ings which have been sealed by the surveyor and certified by the
engineer of record. In addition, each Developer will provide the
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Utilty with three sets of all appropriate manuals for operation
of any pumping stations and other mechanical and electrical equip-
ment installed by that Developer, as applicable. In addition,
each Developer will provide the Utility with a schedule of costs
of the facilities being transferred, certified by the Developer,
along with a detailed accounting of the cost of the facility being
transferred.
(2) Upon completion of construction of the
Facilities the Developer which constructed or installed such
Facilities shall provide the Utility with an opinion of the
Developer's counsel to the effect that the lands to be encumbered
by all easements to be conveyed or dedicated by the Developer to
the Utility pursuant to this Agreement with respect to that phase
or portion of the On-Site Facilities to be accepted by the Utility
for ownership, operation and maintenance are, in fact, owned by
the Developer, free and clear of all liens (including mechanics'
liens) and encumbrances, other than those acceptable and approved
by the Utility. Such opinion of counsel, when rendered, may
reflect that the lands involved are encumbered by a development
mortgage or mortgages, if such mortgage or mortgages are subor-
dinated to the easements described in this Agreement or if the
lands underlying subject easements are released from such mort-
gage or mortgages.
(3) After the Developer has satisfied the
requirements of Subsections (1) and (2) the Utility shall accept
the Facilities from the Developer.
(4) After acceptance of any phase or portion
of any On-Site Facilities for ownership, operation and maintenance
by the Utility, the Developer which constructed or installed such
Facilities shall, with respect to such phase or portion constructed
or otherwise provided by the Developer, (a) convey, grant or
dedicate to the Utility free and clear of all liens and encum-
brances, such easements as are reasonably necessary for the Utility
to own, operate, maintain, repair, expand, and replace the On-
Site Facilities constructed thereon and (b) transfer and convey
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to the extent that the same are transferable all governmental
approvals and permits that will enable the Utility to operate the
applicable phase or portion of those On-Site Facilities and pro-
vide Water Service to the improvements, and notify all governmental
agencies of such transfer and conveyance as may be required by
law. The Utility shall review and approve all documents submitted
by the Developers pursuant to this Subsection.
(5) Notwithstanding the above, whether the
development of a Developer's Property involves one customer or a
unity of title of several customers, or in the opinion of the
Utility, ownership by the Utility of the On-Site Facilities is
not necessary, then at the option of the Utility, the Developer
shall retain ownership and the obligation for maintenance of such
On-Site Facilities as the Utility shall hereinafter designate in
writing. As long as said Property then remains in one customer,
the Developer or its successors or assigns shall have the right
to retain ownership and the obligation for maintenance. The reten-
tion of ownership of such On-Site Facilities by a Developer shall
not diminish the right of the Utility to provide service to the
property of others by or through the full utilization for such
purpose in accordance with the Master Plan. In the event of such
use by others, the Developer's cost of constructing and maintain-
ing such Facilities shall be shared between the Developer and the
Utility in accordance with each such party's proportionate share
(based on each party's proportionate flows) or such other method
as said parties shall mutually determine. Notwithstanding any-
thing to the contrary contained herein, the Utility shall not be
required to accept title to any Customer Installations.
3.7 Bonding Reauiremeptr. After inspection,
conveyance and acceptance, the Utility agrees to maintain each
phase of On-Site Facilities that is completed by the Developer,
except for Customer Installations which are not the responsibility
of the Utility as provided by this Agreement. Each Developer
shall indemnify and hold the Utility harmless from any repairs or
replacements required to be made to said Facilities conveyed by
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that Developer to the Utility which occur within two years from
the data of conveyance of said Facilities to the Utility.
Simultaneously, with the conveyance of the On-Site Facilities
described above from the Developer to the Utility, the Developer
making said conveyance shall deliver to the Utility an executed
contract bond or letter of credit in the amount of ten percent of
actual costs of construction of said Facilities. If a letter of
credit is used it shall be in form reasonably acceptable to
Utility. The contract bond shall have as the surety thereon,
such surety company as is authorized to write bonds of such
character and amount in accordance with the laws of the State of
Florida. The attorney-in-fact, or other officer who signs such
contract bond for surety company shall file with such bond a
certified copy of his power of attorney authorizing him to do so.
The contract bond may be written either with the Developer's
contractor as "principal" and the Developer and the Utility as
"co-obligees" or, in the alternative, with the Developer as prin-
cipal and the utility as "obligee." The contract bond or letter
of credit shall remain in force for two years following the date
of conveyance to the Utility against losses resulting from any
and all defects in materials or improper performance or construc-
tion. Upon demand by the Utility, the Developer shall correct or
cause to be corrected within thirty days all such defects which
are discovered within said warranty period or periods as set forth
above. If the defects are not corrected within thirty days or if
the Developer is not proceeding in good faith to correct the
defects, the Utility may give the Developer notice that the Utility
intends to correct such defects and the Developer and its surety
shall be liable to the Utility for its costs arising therefrom or
the Utility may draw on the letter of credit to cover its costs
arising from said repairs and correction of defects.
3.8 Characterisation and Surrender c.f. Facilities.
Upon conveyance to the Utility of any On-Site Facilities as
aforesaid, the conveyed facilities shall become part of the
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Utility's System (as appropriate) , and the Developer shall sur-
render control of said Facilities and execute and deliver to the
Utility any documents or instruments necessary for that purpose.
If the Developer shall fail or refuse to do so, then the Utility
shall be entitled to specifically enforce the provisions of this
Subsection 3.8 against the Developer.
3.9 Effect of Review. Inspections. Approvals. and
acceptances. The reviews, inspections, approvals, acceptances
and conveyances to the Utility of any Plans and Specifications
or construction shall not constitute a waiver of any claims arising
from (1) faulty or defective design, (2) faulty or defective
construction, (3) unsettled liens and encumbrances, and (4) tort
claims.
3.10 Operation and Maintenance. of Facilities. sub
ject to the Developer's compliance with Sections 3 and 5 hereof,
the Utility or its successors shall accept conveyance and assume
responsibility for the operation and maintenance of those On-Site
Facilities for which the Utility has approved the design, construc-
tion, and documents specified in Subsection 3.6, excluding the
Customer Installations. Upon acceptance of ownership and assump-
tion of the responsibility for the operation and maintenance of
any such Facilities by the Utility as contemplated in this Agree-
ment, all customers of those Facilities shall be deemed customers
of the Utility's System, and the Utility shall set and collect
all water rates, fees, charges and deposits for those Facilities,
without exception, in accordance with its Tariff and the provisions
of this Agreement. In addition to other applicable requirements,
all property owners and customers must provide at their expense
necessary individual service lines as a condition precedent to
receiving Water Service Capacity from the Utility.
SECTION 4. CONSTRUCTION 07 FACILITIES.
4.1 General. Where applicable, and as required by
Utility-approved Plans and Specifications, the Developer shall
construct and install at its sole expense any Facilities required
to extend Water Service Capacity to Developer's Property, in
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accordance with the Master Plan. The Developer is required to
construct and install Distribution Facilities necessary to trans-
port water from the Primary Water Main to the Property. The con-
struction and conveyance of all such Facilities shall be governed
by all the terms and provisions of Section 3 hereof. The Utility
may elect to construct said Facilities, and in such event the
Developer shall be responsible for payment of a proportional share
of the actual and direct costs for the Facilities required to
extend Water Service Capacity to its property and the installation
of said Facilities. Prior to construction, the Developer shall
pay the Utility the estimated costs of construction. Upon com-
pletion of construction the Utility shall provide to the Developer
a statement of the actual costs of construction. Within ten days
of providing the statement of actual costs the Utility shall
rebate any excess funds received at the time of estimate or the
Developer shall pay such remaining costs not previously paid.
4.2 Refundable Advance. The Developer shall always
be responsible for construction, at its sole expense, of any
Facilities required to extend Water Service Capacity to Developer's
Property. The Developer may also be required to size the Facilities
in accordance with the City Water System Master Plan so as to
serve other property owners. In this circumstance, all amounts
expended by the Developer over and above the Developer's propor-
tionate share of the Facilities necessary to serve Developer's
Property shall be refunded to the Developer in accordance with
the terms and conditions of a Refund Agreement which the Utility
will jointly execute with the Developer. The Refund Agreement
shall provide for a plan of refund based upon the connection of
other properties to the Facilities constructed by the Developer
based upon the proportionate share of the other properties. The
Refund Agreement shall have a term of not more than seven years
from the date of completion of construction, unless otherwise
specified, after which time any portion of the refund not made to
the Developer by other property owners under the conditions of
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the Refund Agreement will have lapsed, and the Developer there-
after will no longer be entitled to any refund.
SECTION 8. EASEMENTS.
5.1 grant of Easements. The Developer shall execute
specific easements to be recorded in the Official Records of
Orange County consistent with the provisions of Section 3.6(4) .
5.2 Manta of Ingress and Earess. The foregoing grants
include the necessary right of ingress and egress to any part of
a Developer's Property upon which the Utility is constructing,
operating or maintaining such Facilities. The foregoing grants
shall be for such period of time as and to the fullest extent
that the Utility or its successors or assigns require such rights,
privileges or easements in the construction, ownership, maintenance,
operation, repair or expansion of said Facilities.
5.3 private Property Installations. In the event mains,
lines or facilities are to be installed in lands within or outside
the Developer's Property which are to be owned and maintained by
the Utility in areas outside of streets and public ways, then
the Developer shall grant to the Utility, without cost to the
Utility, the necessary easement or easements for such private
property installation by express grant; provided, all such pri-
vate property installations shall be made in such manner as not
to interfere with the then primary use of such private property.
5.4 Errors in Line Locations. The Utility and the Devel-
oper will use due diligence in ascertaining all easement locations;
however, should the Utility or the Developer install any Water
Facilities outside a dedicated easement area, or private easement
area conveyed by express grant, the Utility will not be required
to move or relocate any such Facilities lying outside a dedicated
easement area so long as the Facilities do not interfere with the
then or proposed use of the area in which the Facilities have
been installed, and so long as the Utility obtains a private ease-
ment for such line location, which the Developer will give if
Same is within its reasonable power to do so. Should the Utility
be obligated to relocate any such Facility installed by a Developer,
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then that Developer shall reimburse to the Utility the costs reason-
ably 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 Utilisation of En6emeat Grants. The Utility agrees
that all easement grants will be utilized in accordance with the
established and generally accepted practices of the water indus-
try with respect to the installation of all such Facilities in
any of the easement areas to service the Developer's Property and
the property of others; and that the Developer and its successors
or assigns in granting any easement herein, or pursuant to the
terms of this instrument, shall have the right to grant exclusive
or non-exclusive rights, privileges and easements to other persons,
firms or corporations to provide to the Developer's Property any
utility services other than water service.
5.6 prohibition Against obstruotiond. 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, under-
growth, and other obstructions that may interfere with normal
operation or maintenance of any Water Facilities placed thereon,
and the Grantor, its successors and assigns of any easement granted
pursuant to this Section 5 agrees not to plant or allow to be
planted trees, plants or shrubs, build, construct or create any
buildings or any other structures upon said easements that may
interfere with the normal operation or maintenance of said Water
Facilities.
SECTION 6. MATES, FEES. AND CBARGES. As a condition to
the provision of Water Service Capacity, the Developer agrees to
pay certain rates, fees and charges as hereinafter set forth:
6.1 General. User rates and other charges to the
Developers and individual customers of Water Service Capacity
shall be those set forth from time to time in the Tariff estab-
lished by the Utility. However, subject to the terms and provi-
sions of this Agreement, the Utility may establish, amend, revise,
and enforce, from time to time in the future, its Tariff (including
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capacity or connection charges and Guaranteed Revenue and Mainte-
nance Fees) provided that such rates, fees, charges, and deposits
are uniformly applied to customers in its service area, are non-
discriminatory as applied to the same classification of service
throughout its service area. The Utility may establish, amend or
revise, from time to time in the future, and enforce rules and
regulations covering Water Service Capacity to the Developers'
Properties. Such rules and regulations so established by the
Utility shall at all times be reasonable and subject to such regu-
lation as may be applicable. Any initial or future lower or
increased rates, rate schedules, capacity charges or other fees
and charges, and rules and regulations established, amended or
revised and enforced by the Utility from time to time in the
future, shall be binding upon the Developers, upon any person or
other entity holding by, through or under the Developers, and
upon any user or customer of the Water Service Capacity provided
to the Developer's Properties.
6.2 Insuaction and Raviaa Fees. Pursuant to the provi-
sions of Section 3 and Section 4 of this Agreement, each Developer
shall pay to the Utility Plans and Specifications review fees and
construction inspection fees as follows:
(1) Fees payable to the Utility for review by the
Utility and its engineers of the Developer's engineering Plans
and Specifications for the Developer's on-site and off-site work
shall be in an amount equal to the then prevailing amount set by
the Utility from time to time. Said fees shall be payable within
ten days after receipt of an invoice from the Utility by the
Developer; provided, however, that said fee shall not exceed the
reasonable costs incurred by the Utility in performing the review.
(2) Fees for the review and inspection by the
Utility or its engineers of the Developer's construction of its
On-Site and Off-Site Facilities as provided for in this Agreement,
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
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the inspection and shall not exceed two percent of the cost of
construction. The fee shall be paid by the Developer prior to
conveyance to the Utility and upon receipt of an invoice from the
Utility.
6.3 Payment of Customer Deposita. The Utility may
develop a uniform customer and developer deposit policy. Upon
applying for service, each customer shall pay to the Utility the
appropriate customer deposit which shall be held and administered
in accordance with the provisions of the policy of the Utility.
The customer will pay any such customer deposit to the Utility in
a manner set by the Utility. Said funds shall become the unre-
stricted property of the Utility and shall be available for use
by the Utility with no limitations, restriction, obligation or
encumbrance whatsoever, except to the extent that applicable laws
restrict the Utility in use or disposition of said funds.
SECTION 7. nalima. The Developer has provided the
Utility with a letter of credit for twenty percent of all payment
due the Utility for Water Service Capacity. Said letter of credit
does not exempt the Developer from the obligation to pay any
increased Water Capital Charges for the Capacity which may be in
effect at the time of issuance of a building permit.
The Developer shall make payment for reserved capacity
as shown in Exhibit "B" attached hereto and by this reference
made a part hereof. The Developer shall forfeit the amount due
under the letter of credit should the payment for reserved capacity
not be timely made. The Utility shall give the Developer written
notice of any default under this Section and shall allow the
Developer ten days from the date of receipt of such notice to
cure such default.
SECTION S. ALLOCATION AND PROVISION OF WATER SERVICE
CAPACITY.
8.1 Allooatieq. Subject to each Developer's compliance
with the terms and conditions of this Agreement, the Utility
hereby agrees to allocate Water Service Capacity for the use by
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the Developer with its improvements on the Developer's Property.
The allocation for the Developer shall be equal to the Water
Service Capacity for which cash payment has been made by the
Developer. On a date five years after the date of the cash
payment for capacity any such allocated Water Service Capacity
for which a building permit has not been issued (or if issued,
expired) shall be surrendered by the Developer to the Utility,
and, in such an event, the Utility shall not be obligated to
refund Water Capital Charges, Revenue and Maintenance Fees, or
other contributions, rates, fees, charges, or other amounts paid
by the Developer. Notwithstanding anything herein to the contrary,
the Developer may transfer Water Service Capacity provided that
(1) no transfer of capacity may be made for consideration greater
than the Developer's initial Water Capital Charge unless the
Developer has paid cash for the Capacity, in which case the
transfer may be made for consideration equal to the then prevailing
rate established by the Utility for the Water Capital Charge;
(2) the Transferee must execute a Developer's Agreement for Water
Service; and (3) the Utility has the right of first refusal of
said Capacity. If the Developer is unable to use all or a portion
of the Water Service Capacity the Developer may, prior to the
termination of the right to use said Capacity, request in writing
to sell such Capacity back to the Utility. The Utility may buy
the Capacity back from the Developer at the rate originally paid
by the Developer for the Capacity, without interest. If the
Developer does not use, transfer, or sell said Capacity in
accordance with the above provisions and the right to use said
Capacity terminates and the Capacity is returned to the Utility,
the Developer may reapply for Capacity and will receive a credit
for any Water Capacity Charge previously paid against the cost of
any new Capacity.
8.2 Provision of water Service. Upon the completed
conveyance of On-Site Facilities to the Utility, the payment of
applicable rates, fees, and charges, and the physical connection
of a given Customer Installation to the Utility's System, the
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OGNi IJJA IeIJ(J A i IILU , L 14 dl , I0O4 , 1J1,w4v11'J 'ui J,v
Utility agrees to continuously provide Water Service to said
Customer Installation in accordance with the terms and conditions
of this Agreement, its Tariff and applicable requirements of the
FDER. Notwithstanding the above, the Utility does not guarantee
or warrant any special service, pressure, quality or other facility
other than what is required to fulfill a duty of reasonable care
to the customers to whom it provides such Water Service.
Utility shall use its best good faith effort to provide
Water Service to the Developer upon demand consistent with the
provisions of this Agreement, provided that the Utility is obligated
to provide Water Service only pursuant to allocated water Service
Capacity for which cash payment has been made. The Utility makes
no guarantee for Water Service pursuant to an allocation of Water
Service Capacity for which a Letter of Credit has been provided
until cash payment is made for such Capacity.
SECTION 9. CUSTOMER INSTALLATIONS.
9.1 Notice of Initial Connection to Utility's System.
The Developer shall give the Utility notice that the Developer is
connecting the On-Site Facilities to the Utility's System not
less than one business day prior to said connection so that the
Utility may inspect said connection; provided, however, that if
the date of inspection occurs on a Saturday, Sunday, or legal
holiday, the Utility may postpone its inspection until the next
occurring day which is not a Saturday, Sunday, or legal holiday.
If a Developer fails to give said notice, the Utility may require
the Developer to uncover and expose said connection for inspection,
at the sole cost of the Developer.
9.2 Connection of Individual Customer Installations.
Although the responsibility for connecting the Customer Instal-
lations to the Utility System is that of the Developer or entities
other than the Utility, with reference to such connections, the
parties agree as follows:
(1) Only PVC or such other materials as the Utility
shall reasonably approve in writing shall be used for said connec-
tions.
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.... .. vl..vh lv. .r. L Iv i I♦ v. rv1v4,,Ir 4V1 V.J .iL., IF Iv
•
(2) Except as otherwise provided in Subsection (4)
below, all Customer Installation connections must be inspected by
the Utility before backfilling and covering of any pipes.
(3) Notice to the Utility requesting an inspection
of a Customer Installation connection may be given by the Developer
of the property, and the Utility will make a good faith effort to
inspect said Customer Installation within twenty-four hours of
said notice, or on the next occurring day which is not a Saturday,
Sunday or legal holiday.
(4) If the Utility fails to inspect the Customer
Installation connection within forty-eight hours after such inspec-
tion is due to occur as provided hereinabove, the Developer of
the property or the Owner of the property may backfill or cover
the pipes without the Utility's approval; provided, however, the
Developer or Owner shall remain liable for any claims arising
from (a) faulty or defective design, (b) faulty or defective
construction, and (c) tort claims associated with said pipes
and backfilling.
(5) If a Developer does not comply with the fore-
going inspection provisions, the Utility may refuse service to a
connection that has not been inspected until the Developer com-
plies with these provisions.
(6) The cost of constructing, operating, repairing
or maintaining the Customer Installations shall be that of the
Developer or entities other than the Utility.
9.3 application for Service. Unless previously connected
prior to the date of execution of this Agreement, each Developer,
its successors, or the occupant of the Developer's Property, shall
make written application to the Utility for the opening of an
account for service. Said application isto be made only after
the payment of all fees and charges as required in Section 6 hereof.
At the time of making said application for service, the applicant
shall pay all service charges as set forth in the Tariff of the
Utility except as modified or otherwise described herein.
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•
SECTION 10. ASSURANCE OF TITLE TO PROPERTY. Prior to
the execution of this Agreement, at the expense of the Developer,
the Developer shall deliver to the Utility an opinion of title
from an attorney, licensed to practice law in the State of Florida
With respect to the Developer's Property, which opinion of title
shall include a current report on the status of the title, setting
out the name of the legal title holders, the outstanding mortgages,
taxes, liens, tenancies or parties in possession and other cove-
nants affecting the Developer's Property. The provisions of this
Section are for the purpose of evidencing the Developer's legal
right to grant the exclusive rights of service and lien rights
contained in this Agreement. The requirements of this section
are waived if the Utility has previously received an opinion of
title aoceptable to the Utility.
SECTION 11. ;NCORPORATION OF LANS, 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. DISCLAIMS-ROI LIMITATIONS ON LIABILITY.
12.1 Status. The Developer and the Utility deem
each other to be independent contractors, and not agents of the
other.
12.2 Indemnity. Each Developer shall indemnify
the Utility, its respective agents and employees, from and against
any and all claims, liability, demands, damages, expenses, fees,
fines, penalties, suits, proceedings, actions and fees, including
attorneys' fees, for injury (including death) to persons or damage
to property or property rights that may arise from or be related
to acts, errors, or omissions of the Developer, its agents, employees,
servants, licensees, invitees, or contractors or by any person
under the control or direction of the Developer, or by the Developer's
use of the Utility's system, and each Developer shall indemnify
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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 Devel-
oper of any covenant, condition, agreement or provision contained
in this Agreement concerning all or any part of the Utility's
system. Any indemnification provided in this paragraph shall
arise solely from the obligations and actions specified in this
particular Agreement.
12.3 Force Maieure. The Utility shall not be liable
or responsible to any Developer by reason of the failure or in-
ability of the Utility to take any action it is required to take
or to comply with the requirements imposed hereby, or any injury
to a Developer or by those claiming by or through the Developer,
which failure, inability or injury is caused directly or indirectly
by force majeure as hereinafter set forth. The term "force majeure"
as employed herein shall mean Acts of God, strikes, lock-outs, or
other industrial disturbance; acts of public enemies, war, blockades,
riots, acts of armed forces, militia, or public authority; epidemics;
break down of or damage to machinery, pumps, or pipelines; land-
slides, earthquakes, fires, storms, floods, or washouts; arrests,
title disputes, or other litigation; governmental restraints of
any nature, whether federal, state, county, municipal or other-
wise, civil or military; civil disturbances; explosions; failure
or inability to obtain necessary materials, supplies, labor or
permits or governmental approvals, whether resulting from or pur-
suant to existing or future rules, regulations, orders, laws or
proclamations, whether federal, state, county, municipal or other
wise, civil or military; or by any other causes, whether or not
of the same kind as enumerated herein, not within the sole con-
trol of the Utility and which by exercise of due diligence the
Utility is unable to overcome.
12.4 Disclaimer of Third Party Beneficiaries.
This Agreement is solely for the benefit of and shall be
binding upon the formal parties hereto and their respective
authorized successors and assigns, and no right or cause of
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001 UT ox lelecopier Tutu
action shall accrue upon or by reason hereof, to or for the
benefit of any third party not a party to this Agreement or
an authorized successor or assignee thereof.
12.5 Disclaimer of Security. Notwithstanding any
other provision of this Agreement, the Developer expressly acknow-
ledges (1) that it has no pledge of or lien upon any real prop-
erty (including, specifically, the Utility's system) , any person-
al property, or any existing or future revenue source of the
Utility (including, specifically, any revenues or rates, fees or
charges collected by the Utility in connection with the Utility's
System) as security for any amounts of money payable by the Util-
ity under this Agreement; and (2) that its rights to any pay-
ments 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 or hereafter issued.
SECTION 13. TERMINATION AND OTHER REMEDIES. The Util-
ity shall have the right, for any length of time, to refuse to
provide or to terminate water Service Capacity to any Developer
or any structure on that Developer's Property in the event that
the Developer or its successors and assigns fail to comply with
any of the terms and conditions of this Agreement concerning all
or any part of the Utility's System, Utility rules or policies,
or any other general or special law or revisions thereof at any
time (as may be determined by the Utility) or to terminate such a
Developer's rights under this Agreement for such violations.
Nothing contained in this Agreement shall be construed to prohi-
bit the Utility from exercising or utilizing any other appro-
priate remedies for the enforcement of the terms and conditions
of this Agreement by whatever means are provided by law or equity,
including but not limited to the right of specific performance.
In connection with any litigation between the Utility and a Developer,
including appellate proceedings arising out of this Agreement or
the violation of any law, rule, regulation, ordinance, resolution,
or permit, the prevailing party shall be entitled to recover from
the other party reasonable attorneys' fees and costs hereunder.
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�LIJI Ul nti Uh IbILLUNlbI IULU i L IJ""yl i IU•JU 4UIU4v114J 4U1 UJB JILu u
The exercise of the Utility's termination or refusal rights under
this Section 13 hereof, shall, however, be subject to the Utility's
rules and regulations and to the notice and default provisions of
Section 15 hereof.
SECTION 14. p1OTICE: PROPER FORM. Any notices required
or allowed to be delivered shall be in writing and be deemed to
be delivered when (1) hand delivered to the official herein-
after designated, or (2) upon receipt of such notice when deposited
in the United States mail, postage prepaid, certified mail, return
receipt requested, addressed to a party at the address set forth
opposite the party's name below, or at such other address as the
party shall have specified by written notice to the other party
delivered in accordance herewith.
Developer: Rick Neal
14 vast Washington. Suite 202
Orlando, Florida 32801
Utility: city of Ocoee
City Manager
150 North Lakeshore Drive
Ocoee, FL 34761
SECTION 15. lipTICEs: DEFAULT. Each of the parties hereto
shall give the other party written notice of any default here-
under 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 com-
pletion good faith efforts to effect such cure and to thereafter
notify the other parties of the actual cure of any such defaults.
SECTION 16. ASSIGNMENTS.
16.1. Assigments by the Developer. Except as expressly
provided herein, the Developer agrees not to assign or transfer
any or all portions of this Agreement. The allocation of Water
Service Capacity granted to each Developer may be assigned, trans-
ferred, leased, encumbered or disposed of consistent with the
terms of this Agreement if and only if the assignee pays all of
the Utility's reasonable legal and administrative costs incurred
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stNi sr:xerox ieIecopier 11)4u ,
in connection with such Assignment, and assumes all of the duties
and obligations of the assignor under this Agreement.
16.2. Assignments by the Utility. The Utility shall
have the right to assign or transfer this Agreement, or the rights
and responsibilities contained herein, to any properly authorized
commission, authority, corporation, or other public or private
person, firm, or entity without consent of the Developer.
16.3. Notice of Transfer of Developer's Property. The
Developer agrees that any Developer legally transferring Water
Service Capacity, in accordance with the provisions of this Agree-
ment, shall provide proper written notice to the Utility of the
actual date of the legal transfer of Water Service capacity from
the Developer to any other party. The Developer making such
transfer shall remain responsible for all costs and expenses,
including utility bills, which arise in the event that Developer
fails to properly notify Utility.
16.4. Bindina Agreement on Successors. This Agreement
shall be binding upon and shall inure to the benefit of the Devel-
oper, the Utility, and their respective successors and assigns.
SECTION 17. RECORDATION. The parties hereto agree that
an executed copy of this Agreement and Exhibits attached hereto
shall be recorded in the Public Records of Orange County, Florida,
at the expense of the Developer.
S ECTION 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.
S ECTION 19. HVRVIVAL OP COVENANTS. The rights,
privileges, obligations and covenants of the Developer and
the Utility shall survive the completion of the work of the
Developer with respect to any phase and to the Developer's
Property as a whole.
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•
SECTION 20. ElVERABILITY. 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 Agree-
ment if the rights and obligations of the parties contained there-
in are not materially prejudiced and if the intentions of the
parties can continue to be effected.
SECTION 21. RECOVERY OP COSTS ANQ IZES. In the event
the Utility or the Developer is required to enforce this Agreement
by court proceedings or otherwise, then the prevailing party shall
be entitled to recover from the other party all costs incurred,
including reasonable attorneys' fees, whether incurred prior to,
during or subsequent to such court proceedings or on appeal.
SECTION 22. TINE or TEA ESSENCE. Time i■ hereby declared
of the essence to the lawful performance of the duties and obli-
gations contained in this Agreement.
SECTION 23. ENTIRE AGREEMENT. This instrument and its
exhibits constitute the entire Agreement between the parties and
supersedes all previous discussions, understandings, and agree-
ments between the parties relating to the subject matter of this
Agreement. Amendments to and waivers of the provisions herein
shall be made by the parties in writing by formal amendment.
SECTION 24. EFFECTIVE DATE. The parties hereto
recognize that this Agreement must be approved by the City
Commission of the Utility. This Agreement shall become
effective upon the date of execution hereof by the proper
representatives of the Utility and the Developer.
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JCIVI UI •;N_I VA iu1. vyi
IN WITNESS WHEREOF, the Developer and the Utility have
executed or have caused this Agreement with the named Exhibits
attached to be duly executed the day and year first above written.
WITNESSED: "UTILITY"
CITY OP OCOEE
By:
Lester Dabbs, Jr. , Mayor
As to Utility Attest:
Jean Grafton, City Clerk
WITN SEED: "DEVELOPER"
/ G._ APORANGE BANK a Flo da. Corporation
Ir I' By: 14. C $ •
Y01141111111Its �. AI •gy. ..
As to Develo•=r Attest:
Its .teCile ice res of
FOR USE AND RELIANCE ONLY BY APPROVED BY THE OCOEE CITY
THE CITY OP OCOEE, FLORIDA COMMISSION AT A MEETING HELD
APPROVED AS TO FORM AND LEGALITY: ON , 1990, UNDER
h AGENDA ITEM
THIS - DAY OF7) , 199 .
FOLEY & LARDNER, VAN DEN BERG,
GAY, BURRED WILSON & ARKIN
By: goer c c
ty Attorney
STATE OF FLORIDA
COUNTY OF
BEFORE ME personally appeared Lester Dabbs, Jr. and Jean
Grafton, to me well known to be the individuals described in and
who executed the foregoing instrument as Mayor and City clerk,
respectively, of CITY OF OCOEE, and they acknowledged to and
before me that they executed such instrument as such officers of
said political subdivision of the State of Florida and that said
instrument is the fee act and deed of said political subdivision.
WITNESS my heind and official seal this day of
, 199f.
Notary Public
(NOTARIAL SEAL)
My commission expires:
STATE OF FX,ORIDA
COUNTY OF kk
_____
BEFORE E, the undersigned authority, duly authorized to
t ke acknow edg}nents nd administer os,=persona y Appeared
' 1 (�. , as u nv 0 1 li a YcLL.0l3�7*'
who bail*irst duly sworn upon oath, ecuted the foregoing
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.
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 this ati day of
atttli , 199i.
Notary Publ c
(NOTARIAL SEAL)
My commission expires:
NOTARY PUBLIC,STATE OF FLORIDA AT LARGE
MY COMMISSION EXPIRES SEPT.13,1992
FLOPPY/5154(5)
'� a*'e0�aNdie�roa AnEr�cr.wa ,-
01 (12/20/90)
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EXHIBIT A
Section 15, Township 22 South, Range 28 East, Orange County,
Florida. Being more particularly described as follows: Commence
at the Northwest corner of said Section; thence run along the
Northerly line thereof North 89 47 49 East, a distance of 1323 . 82
feet; thence run South 00 18 29 West, a distance of 1279 .48 feet to
the Northerly right of way line of Silver Star Road (State Road No.
438) ; thence run along said Northerly line South 89 45 44 East, a
distance of 340.00 feet to the point of beginning; thence run North
00 18 29 East, a distance of 601.09 feet; thence run South 89 41 31
Rant, a distance of 310. 00 feet to the point of curvature of a
curve concave Southwesterly and having a radius of 20 .00 feet;
thence run Southeasterly along the arc of said curve through a
central angle of 90 00 00, an arc distance of 31 .42 feet, and a
chord bearing and distance of South 44 41 31 East, 28 .28 feet;
thence run South 00 18 29 West, a distance of 4 .23 feet; thence run
South 89 41 31 East, a distance of 270. 00 feet; thence run North 47
30 03 East, a distance of 370 .06 feet; thence run South 14 13 43
West, a distance of 183.60 feet; thence run South 36 52 56 West, a
distance of 227 .53 feet; thence run South 54 41 43 West, a distance
of 207 .81 feet; thence run South 00 14 51 West, a diatanca of
345 .75 feet to the aforementioned Northerly right of way line of
Silver Star Road; thence run along said Northerly line North 89 45
44 West, a distance of 523 . 17 feet to the Point of Beginning.
IULU r L IJ 4Q1 UJV JlL. rnLU
•
EXHIBIT B
18 WATER ERU' S i $ 966.00
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EXHIBIT C
NA