HomeMy WebLinkAbout2007-154 PREPARED BY:
Indian River County
Attorney's Office
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Indian River County
Attorney's Office
AGREEMENT FOR THE DELIVERY OF RECLAIMED WATER
BETWEEN
INDIAN RIVER COUNTY , FLORIDA
AND
TARMAC AMERICA LLC
THIS AGREEMENT made this 8th day of May 2007 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 Tarmac America
LLC , a Delaware limited liability corporation whose principal office is located at 455 Fairway
Drive, Deerfield Beach, Florida 33441 (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 uses ,
B . The DEVELOPER intends to develop a concrete batch plant known as TARMAC
Gifford Concrete Batch Plant 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 #20-061 - 110687-1 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 :
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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
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 53rd Street right-
of-way adjacent to the north 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
storage tank 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.
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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 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 80 , 000 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 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 . 2 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.
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3 . 3 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
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 .4 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 . 5 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 . 6 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 . 7 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
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 .
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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 .
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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 .
Tarmac America LLC
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Print Name (�: i s e/ e 'P/+ i TErl%-' By:
Print Name _ uPnNPv)i Ec Printed name and title
State of Florida
County of fro tua, —d
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The 11 foregoing instrument was acknowledged before me this day of
&f-y / , 2007 by llaldv as of
Tarmar Afrlr"r-t CA t , a t4o71j4e4 L_ta.&I 61
on behalf of the The subscribe g party is
personally known to me or produced as
identification . ���---
Notary Public
Print Name: 0, 1 R1 f e, K � er5en
Commission No.
Expiration Date
N eo No(a7 +'.,e c Mate of Flo' da
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My Cmeson DD401504
6
BOARD F COU N Y• `COMMISSIONERS OF
INDIAN RIVER COUWY,% iLORIDA
By : C LC) .—
Gary he CHAIRMAN
Date Approved by BCC : May 8 , 2007
Attest : J . K. Barton , Clerk
By: C
Deputy Clerk
Approved :
)se :)h .h Baird
ounty Administrator
r
Approved as to form and legal
fficiency:
Marian E . Fell
Assistant County Attorney
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