Loading...
HomeMy WebLinkAbout2006-262 6 O / THIS D 9 (O U✓ O� THIS DOCUMENT HAS BEEN RECORDED PREPARED BY: IN THE PUBLIC RECORDS OF Indian River County INDIAN RIVER COUNTY FL Attorney's Office BK: 2063 PG : 749, Pagel of 9 08101/2006 at 03 :45 PM, Return to: Indian River County JEFFREY K BARTON, CLERK OF Attorney's Office COURT AGREEMENT FOR THE DELIVERY OF RECLAIMED 1/tlA.TER BETWEEN INDIAN RIVER COUNTY , FLORIDA AND DIVOSTA HOMES , L . P . THIS AGREEMENT made this 18th day of July , 2006 by and between INDIAN RIVER COUNTY, a political subdivision of the State of Florida , the address of which is 1840 25th Street, Vero Beach , Florida 32960 (hereinafter the "COUNTY") and DIVOSTA HOMES , L. P . , a Delaware limited partnership whose principal office is located at 4500 PGA Boulevard , Suite 400 , Palm Beach Gardens , Florida 33418 (hereinafter the " DEVELOPER") . BACKGROUND RECITALS A. The COUNTY operates and maintains publicly owned wastewater treatment facilities which are capable of producing irrigation quality wastewater effluent (hereinafter referred to as "Reclaimed Water"") as that term defined is by the Florida Department of Environmental Protection ( FDEP) for use on grass , woodlands , landscape , pastures , golf courses and other types of approved vegetation ; B . The DEVELOPER intends to develop a planned unit development/development of regional impact known as Waterway Village on property more particularly described in Exhibit 'A' , attached hereto and incorporated herein in its entirety by this reference ( " Property") ; C . The Property is located within Indian River County's wastewater service area ; D . The DEVELOPER, as the owner of the Property is required to accept Reclaimed Water by its Consumptive User Permit #249 as issued by St Johns River Water Management District (hereinafter "SJRWMD Consumptive Use Permit") , on such lands; E . Pursuant to the "SJRWMD Consumptive Use Permit" , DEVELOPER understands that using Reclaimed Water for irrigation and other purposes before using higher quality water sources is required when Reclaimed Water is available and its use is economically, environmentally, and technologically feasible pursuant to Florida Administrative Code (" FAC") Rule 40C-2 . 301 (4) (f) and (g) ; and F. The DEVELOPER desires to utilize Reclaimed Water and the DEVELOPER is required to accept Reclaimed Water in accordance with the terms of this Agreement, and the SJRWMD Consumptive Use Permit. NOW, THEREFORE , for good and valuable consideration , the receipt and sufficiency of which is hereby acknowledged , and intending to be legally bound , the COUNTY and DEVELOPER agree as follows : 1 . 0 DELIVERY AND ACCEPTANCE: 1 . 1 The COUNTY will deliver and the DEVELOPER agrees to receive Reclaimed Water at the DEVELOPER'S Property line at a mutual agreeable point. The DEVELOPER , at its own I expense, shall install the following items including but not limited to reclaimed water meter, transmission lines , pumps, valves , storage facilities , backflow prevention devices , irrigation equipment, control valves, metering , remote monitoring and telemetry system , and associated appurtenances from the County's Reclaimed Water main located within the Lateral H canal adjacent to the easterly boundary of the Property to a non-pressurized surface storage system located on the Property (the foregoing collectively " Reclaimed Water System ") . 1 . 2 The Developer acknowledges and agrees that: the Reclaimed Water delivered by the COUNTY: will not be provided under pressure; and shall be delivered to a non-pressurized surface storage system located on the Property. 1 . 3 The DEVELOPER shall install a Reclaimed Water flow monitoring and recording device (hereinafter referred to as a "Reclaimed Water Meter") to monitor the volume of Reclaimed Water delivered to the DEVELOPER. The COUNTY will determine the location of the Reclaimed Water Meter on the DEVELOPER 'S Property. The COUNTY shall be granted reasonable access to the Reclaimed Water System . The Reclaimed Water System shall be reviewed and approved by the COUNTY prior to installation . 1 .4 The DEVELOPER covenants that it shall not directly discharge Reclaimed Water into any water body of the State of Florida other than to the impoundment owned and maintained by the DEVELOPER . DEVELOPER shall take all reasonable precautions to prevent the use of Reclaimed Water as potable water. " Reclaimed Water in Use" warning signs shall be strategically posted in accordance with F.A. C . Rule 62-610. In addition , exposed reclaimed water piping shall be painted 'Pantone Purple 522C . DEVELOPER's Reclaimed Water System shall be operated , maintained , and administered in a manner which adheres to the codes , standards , and guidelines established by the COUNTY and the applicable regulatory agencies . 1 . 5 The DEVELOPER shall use the Reclaimed Water to irrigate the Property in a manner consistent with all Federal , State and local laws and regulations. The DEVELOPER shall file a written plan ("Reclaimed Water Use Protocol") with SJRWMD , FDEP, and the COUNTY, that outlines the intended use of the Reclaimed Water. The Reclaimed Water Use Protocol shall be updated and amended in writing whenever the intended use materially changes. The DEVELOPER shall strictly comply with all Federal , State and local regulations with respect to the discharge of any Reclaimed Water into State of Florida waters . 1 . 6 . The DEVELOPER shall obtain FDEP and all other approvals to deliver and apply Reclaimed Water to DEVELOPER's Property. If, through no fault of the parties involved , any federal , state or local government or agency (excluding the COUNTY) fail to issue necessary permits , grant necessary approvals , or require a material change in the Reclaimed Water System , then to the extent necessary and if possible , the parties agree to negotiate an amendment to the Agreement to reflect the change in condition . If it becomes impossible or impracticable to perform under the terms of this Agreement because of the above, then this Agreement shall terminate and the parties shall have no further obligations to the other. 2 . 0 Quality of Reclaimed Water: Volume Allocation : Failure to Deliver Reclaimed Water: 2. 1 The COUNTY will provide Reclaimed Water meeting the standards set forth by the Florida Department of Environmental Protection as defined in the COUNTY's Wastewater Treatment Facility (WWTF) Operating Permit for Reclaimed Water. Sampling for conformance with Reclaimed Water quality shall be performed at the location and frequency defined in the FDEP WWTF Operating Permit. Only Reclaimed Water meeting FDEP water quality standards will be delivered to the DEVELOPER. 2 2 . 2 The DEVELOPER acknowledges and agrees that: the COUNTY does not guarantee the delivery of a set amount of Reclaimed Water. The COUNTY will attempt to allocate an average daily volume of one ( 1 ) million gallons. This allocation is non-binding and non- committal . The DEVELOPER shall control the volume of Reclaimed Water accepted , stored, and utilized by the DEVELOPER. Notwithstanding anything to the contrary, the DEVELOPER is not obligated to accept Reclaimed water which does not meet FDEP standards or any time the DEVELOPER'S reclaimed water impoundment is at or nearing capacity. 2 . 3. The DEVELOPER further acknowledges and agrees that the COUNTY shall not be liable to the DEVELOPER for any damages or expenses of any nature whatsoever incurred by DEVELOPER because of the COUNTY's failure to deliver Reclaimed Water. The DEVELOPER acknowledges and agrees that the COUNTY may be required to disrupt Reclaimed Water service to the DEVELOPER'S Property due to emergency conditions, peak demands , or planned system maintenance. The DEVELOPER acknowledges and agrees that the COUNTY shall not be responsible for any damage of any nature whatsoever that may be caused to the DEVELOPER's Reclaimed Water System or other facilities or property owned by DEVELOPER and located on the Property by such disruptions . 3 . 0 ADDITIONAL DEVELOPER OBLIGATIONS : 3. 1 The DEVELOPER shall prepare at its own expense all plans , specifications , agreements , advertisement, and general conditions, (hereinafter the "Contract Documents") for the Reclaimed Water System . The COUNTY must approve all plans and specifications contained in the Contract Documents prior to permit submittal to the applicable permitting agencies . The DEVELOPER shall be responsible for all costs associated with the design , permitting , and construction of the Reclaimed Water System depicted on Exhibit B attached hereto and made a part hereof to be located within the existing right of way of 53rd Street whether the Reclaimed Water System is designed , permitted or constructed by the DEVELOPER or the COUNTY. 3 . 2 The design , permitting , construction , operation , and maintenance of all on-site Reclaimed Water facilities which are on the DEVELOPER's Property (including but not limited to reclaimed water meter, transmission lines, pumps , valves , storage facilities , backflow prevention devices , and irrigation equipment) shall be the DEVELOPER's sole responsibility and expense. All construction of on-site Reclaimed Water lines and facilities up to the irrigation system shall be subject to COUNTY review and approval. The DEVELOPER agrees to obey any state, federal , and local laws , regulations , and standards that may apply to the DEVELOPER'S use of Reclaimed Water during the term of the Agreement. Further, the Developer agrees to indemnify and hold harmless Indian River County and its officers and employees, from all liabilities , damages , losses, and costs , including , but not limited to, reasonable attorneys' fees , to the extent caused by the negligence , reckless, or intentionally wrongful conduct of the Developer, its successors and assigns and other persons employed or utilized by the Developer, in connection with , or arising from , the misuse of Reclaimed Water delivered to Developer under the terms of this Agreement. 3. 3 The DEVELOPER shall comply with reasonable requests by the COUNTY concerning on-site operations and maintenance including but not limited to all FDEP and SJRWMD regulations relating to reporting requirements , signs , spraying , and color-coding of Reclaimed Water equipment. 3.4 The DEVELOPER shall be deemed in possession of the Reclaimed Water on the DEVELOPER's side of the Reclaimed Water Meter; however, the DEVELOPER shall not be deemed to own the Reclaimed Water and does not have the right to transfer or sell the 3 Reclaimed Water for use offsite of the Property. The DEVELOPER may not transfer or sell the Reclaimed Water to any party for use offsite of the Property. The DEVELOPER acknowledges and agrees that: the DEVELOPER shall use the Reclaimed Water only on the Property and to irrigate any landscaping within any public right of way adjacent to the Property required to be maintained by the DEVELOPER . 3 . 5 The DEVELOPER may change the location of the site or sites where the Reclaimed Water is applied within the Property, provided such change does not interrupt nor diminish the DEVELOPER's ability to accept all of the Reclaimed Water and such change remains in compliance with all applicable federal , state and local regulations and the terms and conditions of this Agreement. 3 . 6 The DEVELOPER shall convey to the COUNTY a non-exclusive easement for the construction and maintenance of the Reclaimed Water Meter site . In addition , the DEVELOPER shall grant to the COUNTY a non-exclusive ingress-egress easement necessary for the COUNTY to install , maintain , operate, and monitor the Reclaimed Water Meter. Each of the foregoing easements shall be : in form and substance acceptable to the County; prepared in recordable form ; and recorded at the sole expense of DEVELOPER concurrently with the Bill of Sale contemplated in this Agreement 3 . 7 The DEVELOPER shall be responsible for obtaining all construction and operating permits required for the construction , delivery, use , monitoring , and storage of the Reclaimed Water. 3 . 8 After the COUNTY's final inspection of the off-site Reclaimed Water Facilities for conformance with the approved plans and specifications , the DEVELOPER shall convey all the offsite facilities to the COUNTY. The conveyance shall include, but not be limited to the following documents , in a form acceptable to the COUNTY: a) Bill of Sale b) Grants of Easements referred to in paragraph 3.6 above c) Maintenance Bond d) Record Drawings (hard copy and electronic format - AutoCAD rel . 14. 0) 3 . 9 Notwithstanding anything in this Agreement to the contrary, DEVELOPER acknowledges and agrees that the use of any water other than Reclaimed Water for irrigation is subject to the terms of the SJRWMD Consumptive Use Permit and all applicable regulatory agency permitting requirements . 4. 0 FEES AND CHARGES : 4. 1 Upon execution of this Agreement, the DEVELOPER shall begin paying the prevailing rate for Reclaimed Water delivered to the Property. 4 . 2 The COUNTY shall have the sole and exclusive right to set fair and reasonable fees and charges for Reclaimed Water (usually expressed in terms of dollar amount per thousand gallons) . The Reclaimed Water fees and charges may be changed at any time at the sole discretion of the COUNTY and such charges shall apply to the DEVELOPER and this Agreement at the time of such change. The COUNTY shall use reasonable efforts to set the Reclaimed Water fees and charges such that they are sufficient to cover the total cost of providing Reclaimed Water. 4. 3 The DEVELOPER shall be invoiced according to the COUNTY's normal billing practices for water customers. The DEVELOPER shall pay interest at the rate in place at the 4 time of any past due amounts from the date the amount came due until the date paid . Written or verbal notice of delinquency is not required for the interest to accrue . 5 . 0 . MISCELLANEOUS PROVISIONS 5 . 1 TERM . The term of this Agreement is ten ( 10) years ("Term") . This Agreement shall be renewed automatically for successive terms at the expiration of any preceding Term , unless any party notifies the other of cancellation by written notice not less than 180 consecutive calendar days in advance of the expiration date of the preceding Term . The Term of this Agreement shall run concurrently with the COUNTY's Regional Wastewater Treatment Facility FDEP Operating Permit serving the area. 5. 2 . MERGER : MODIFICATION . This Agreement incorporates and includes all prior and contemporaneous negotiations , correspondence, conversations , agreements or understandings applicable to the matters contained herein and the parties agree that there are no commitments , agreements, or understandings of any nature whatsoever concerning the subject matter hereof that are not contained in this document. Accordingly, it is agreed that no deviation from the terms hereof shall be predicated upon any prior or contemporaneous representations or agreements , whether oral or written . No alteration , change , or modification of the terms of this Agreement shall be valid unless made in writing and signed by the Developer and the County. 5 . 3 . GOVERNING LAW: VENUE . This Agreement shall be construed according to the laws of the State of Florida . Venue for any lawsuit brought by either party against the other party or otherwise arising out of this Agreement shall be in Indian River County, Florida , or, in the event of federal jurisdiction , in the United States District Court for the Southern District of Florida . 5.4 ASSIGNABILITY. Either party may assign this Agreement, however, the rights granted herein shall run with the land and are not considered the personal property of the DEVELOPER. Therefore , while the DEVELOPER has the right under this Agreement to freely transfer the rights and obligations granted by this Agreement, the assignee shall not have the right to use the reclaimed water anywhere but on the Property and to irrigate any landscaping within any public right of way adjacent to the Property required to be maintained by the DEVELOPER or DEVELOPER'S assignee , unless this Agreement is amended in writing by the assignee and the COUNTY to provide otherwise. 5. 5. AUTHORITY. Each party hereto represents and warrants to the other that the execution of this agreement and any other documents required or necessary to be executed pursuant to the provisions hereof are valid , binding obligations and are enforceable in accordance with their terms. 5.6. CONSTRUCTION . Captions , if included , in this Agreement are included for convenience only and are not to be considered in any construction or interpretation of this Agreement or any of its provisions . All of the parties to this Agreement have participated freely in the negotiation and preparation hereof; accordingly, this Agreement shall not be more strictly construed against any one of the parties hereto . All pronouns shall be deemed to refer to the masculine, feminine, or neuter, singular or plural , as the identity of the party or parties may require. 5. 7 . MULTIPLE COUNTERPARTS . This Agreement may be executed in any number of identical counterparts , each of which shall be deemed to be an original copy and all of which shall constitute but one and the same instrument. 5 5. 8 . RECORDING OF AGREEMENT. The Agreement shall be recorded in the public records of Indian River County at the sole cost of Developer. The obligations defined in this Agreement shall be a condition , which shall run with the land and shall bind subsequent owners of the Property for the term of this Agreement. 5. 9. SEVERABILITY. If any provision of the Agreement is held to be illegal , invalid or unenforceable under present or future laws , such provision shall be fully severable ; this Agreement shall be construed and enforced as if such illegal , invalid or unenforceable provision had never comprised a part of this Agreement, and the remaining provisions of this Agreement shall remain in full force and effect and shall not be affected by such illegal , invalid , or unenforceable provision or by its severance from this Agreement. 5 . 10 . TIME OF ESSENCE. Time is of the essence of this Agreement; however, if the final date of any period which is set out in any provision of this Agreement falls on a Saturday, Sunday or legal holiday under the laws of the United States or the State of Florida , then , in such event, the time of such period shall be extended to the next day which is not a Saturday, Sunday or legal holiday. 5 . 11 . BACKGROUND RECITALS . The Background Recitals are true and correct and form a material part of this Agreement. IN WITNESS WHEREOF , the COUNTY and DEVELOPER have caused this Agreement to be executed in their respective names as of the date first set forth above . DEVELOPER DIVOSTA HOMES , L. P. , Print Name X22 Sei ( u o a Delaware limited partnership By: DiVosta Homes Holdings , LLC , a Delaware limited liability company, its general partner. By CL P - Print Name Mt (tei b e'ee, Ch ,,, s �j he„ P' S< k j „ atVice President State of Florida County of Palm Beach The regoing instrument was acknowledged before me this o day of l J �'4 2006 by Chvu kpAe. P- Schr t Vice President of DiVosta Homes Holdings , LLC , a Delaware limited liability company and general partner of DiVosta Homes , L . P . , a Delaware limited partnership, on behalf of the partnership. The subscribing party is personally known e MCI 10, Grow Commission #DD250990 Notary Public - P Expires: Oct 27, 2007 Print Name: % � dtnpQ. Bonded Thru Commission No. z6F Atlantic Bonding Co., Inc. Expiration Date 6 BOARD OF COUNTY COMMISSIONERS OF INDIAN RIVERCOU , FLORIDA B : Arthur R. ffe6l5prger CHAIRMAN Date Approved by BCC : 07 - 18 - 2006 Attest: J . K. Barton , Clerk 7 Deputy Clerk Approved : pseph . Baird : 2�, a County Administrator Approved as to form and legal sufficiency: i/ / I "7722 GMaridn E . Fell Assistant County Attorney 7 EXHIBIT 66A99 LEGAL DESCRIPTION The South thirty (30) feet of the North sixty (60) feet of Section 21, Township 32 South, Range 39 East (same being the South thirty (30) feet of the North sixty (60) feet of Tracts 1, 2, 3 and 4, Section 21 , Township 32 South, Range 39 East), as shown on the last general plat of lands of the Indian River Farms Company Plat, recorded in Plat Book 2, Page 25, Public Records of St. Lucie County, Florida; Less and excepting that portion thereof lying within the right-of-way of 58th Avenue (Kings Highway); And also, all that part of the North sixty (60) feet of Section 22, Township 32 South, Range 39 East lying West of the West right-of-way of the Indian river Farms Water Control District's (PWa Indian River Farms Drainage District) Lateral "H" Canal. Above described parcel being all that part of the Indian River Farms Water Control District's Sub-lateral A-9-E Canal and Sub-lateral H-1 Canal rights-of- way lying East of 58th Avenue (Kings Highway), and West of the West right-of- way of Indian River Farms Water Control District's Lateral "H" Canal; all now lying and being in Indian River County, Florida, and containing 7.63 acres, more or less, That part of the SW 1 / 4 of Section 15 , Township 32 South, Range 39 East , lying South of the North Relief Canal ; that part of the SW 1 / 4 of the SE 1/ 4 of Section 15 , Township 32 South , Range 39 East , lying South of the North Relief Canal and West of Lateral " H " Canal ; the South 1 / 2 of the South 1/ 2 of Section 16 , Township 32 South , Range 39 East , lying South of the North Relief Canal ; the NW 1 /4 of Section 22 , Township 32 South, Range 39 East , and that part of the NW 1 / 4 of the NE 1 / 4 of Section 22 , Township 32 South , Range 39 East , lying West of Lateral " H " Canal , all lying and being in Indian River County , Florida ; and Tracts 1 through 8 , inclusive , Section 21 , Township 32 South , Range 39 East , according to the Last General Plat of Lands of the INDIAN RIVER FARMS COMPANY LANDS , as recorded in Plat Book 2 , page 251 of the Public Records of St . Lucie County , Florida ; said land now lying and being in Indian River County , Florida . Subject to all canal and road rights - of -way and easements , LESS AND EXCEPT : The South 60 . 00 feet of Tracts 5 through 8 , inclusive , of Section 21 , Township 32 South , Range 39 East , according to the Last General Plat of Lands of the INDIAN RIVER FARMS COMPANY LANDS recorded in Plat Book 2 , page 25 , St , Lucie County , Florida , public recorder now lying and being in Indian River County , Florida . Together with the South 60 . 00 feet of the Northwest Quarter ( 1 / 4 ) of Section 221 Township 32 South , Range 39 East , Indian River County , Florida . AND LESS AND EXCEPT : The North 12 feet of the South 72 feet of the East 1158 . 9 feet of Tract 7 , and the North 12 feet of the South 72 feet of the West 641 . 1 feet of Tract 8 , in Section 21 , Township 32 South , Range 39 East , according to the Last General Plat of Lands of the INDIAN RIVER FARMS COMPANY , recorded in Plat Book 2 , page 25 , of the Public Records of St . Lucie County , Florida ; said land now lying . and being in Indian River County , Florida . P TI 1 , (ms Tech) Dote\T.I Do, 10 Jm 2006 - 645pm C....It G y arcolm LoEN io°'. NOI Use, Name omy Potn\Nome MF:VDo-]ss\An4\CADVJY4 IRC REUSE [xMll61i1e»9 I � S 615t"C -- Ll L T ( I � Ir I� ,Iti11Fil _ � 1 _ Plnx ROy CrC 58tH AVENUE � � moti a® p(anpri — z N o z \\ o Z Ji tj 51 at ct @2005 .UtGnls sxu. INC 1 5UM o (-� ® III - . � /\ n a � °?'" AMI /�I �D N o Imi g , g 7 1. loll a F tv_ . i9"1 � SIOi ; - I x °o N I a J E8 7977 1 LB 786EjL L 43RD AVENUEm I I _ m o ry 6 \�. ,1ahl' QJ1 \ �: f1l —g S i -PE - 'J <n m b y \ (7 r1277 z i � OUR A D ,p , m m X , I - Dl'� W UJ r[ 11� hk TLd m 1 11' -F � � _ x� � - - i H m mrTj Is- , I � Zhti v�`i" lam "ta asI x _ o zi z; m r ct) � 91 ' IJ —� � I a � � E_' i a O� ^') o ,*Q n JII.ELR 1� I P1 _ Lm ` � J - 'iX 29 AI (mgoo ,'m` t1 ] t -zl-< r�- c� lmm i s ..I_� r F m_ I 'i -- . L I .T.��O /- .Ap O'zA .. AtlMH`DJ. m A L 1 Jj- lj I o N MM