HomeMy WebLinkAboutR-94-07
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RESOLUTION NO.: R-94-07
A RESOLUTION OF THE CITY OF SEBASTIAN, INDIAN RIVER
COUNTY, FLORIDA, PROVIDING FOR CERTAIN DETERMINATIONS,
FINDINGS, AND STATEMENTS AS REQUIRED IN SECTION
180.301, FLORIDA STATUTES; APPROVING THE WATER AND
WASTEWATER SERVICE AND CONTRIBUTION AGREEMENT WITH
SEBASTIAN LAKES UTILITY COMPANY AND SEBASTIAN LAKES
ASSOCIATES (THE "AGREEMENT") TO PROVIDE WATER AND SEWER
UTILITY SERVICE TO SEBASTIAN LAKES, A COPY OF WHICH IS
ATTACHED TO THIS RESOLUTION AS EXHIBIT "A"; AUTHORIZING
THE MAYOR AND CITY CLERK TO SIGN THE AGREEMENT ON
BEHALF OF THE CITY; PROVIDING FOR THE REPEAL OF
RESOLUTIONS OR PARTS OF RESOLUTIONS IN CONFLICT
HEREWITH; PROVIDING FOR SEVERABILITY; AND PROVIDING FOR
AN EFFECTIVE DATE.
WHEREAS, section 2(b), Article VIII, Florida Constitution,
and the Municipal Home Rule Powers Act, Chapter 166, Florida
statutes, authorize the city to conduct municipal government,
perform municipal functions, render municipal services and
exercise any power for municipal purposes except when expressly
prohibited by law; and
WHEREAS, pursuant to its governmental powers granted
pursuant to Chapters 163, 166 and 180, Florida Statutes, and
other applicable laws, the City is authorized to preserve and
enhance present advantages, encourage the most appropriate use of
land, water and resources, consistent with the public interest,
facilities and adequate and efficient provision of water and
wastewater facilities, and conserve, develop, utilize, and
protect natural resources; and
WHEREAS, neither general law nor special act prohibits the
City from acquiring or operating water and wastewater utility
facilities; and
WHEREAS, Sebastian Lakes Utilities Company ("SLUC") is the
owner of a water and wastewater system (the "System") located
within the boundaries of Indian River County, Florida, and
WHEREAS, SLUC desires to contribute the water and sewer
lines comprising the System to the City and lease, with an option
to purchase, its wastewater package plant to the City, and the
City desires to obtain the water and sewer lines comprising the
System from SLUC and lease the wastewater package plant from SLUC
with an option to purchase same; and
WHEREAS, the City has examined the assets of the System, has
examined the System's existing financial structure, has examined
the long-range needs and goals of the City relative to the
provision of water and sewer service to the City's present and
future citizens, and has determined that the signing of the
agreement to provide water and sewer utilities services to
Sebastian Lakes is in the public interest; and
WHEREAS, in contemplation of the acquisition of the water
and sewer lines comprising the System and leasing the wastewater
package plant with an option to purchase, the City authorized its
engineering consultants, Hartman & Associates, Inc., to prepare a
briefing document to comply with Section 180.301, Florida
Statutes (the "Briefing Document,,); and
WHEREAS, the Briefing Document has been submitted to the
City Commission for review pursuant to Section 180.301, Florida
Statutes; and
WHEREAS, the City has scheduled, duly noticed and held a
public hearing pursuant to the requirements of Section 180.301,
Florida Statutes.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF SEBASTIAN, INDIAN RIVER COUNTY, FLORIDA, that:
SECTION 1. DETERMINATIONS. The City Council has reviewed and
considered the acquisition of the water and sewer lines
comprising the System and leasing the wastewater package plant
with an option to purchase same, as evaluated in the Briefing
Document and in other pertinent information submitted to the
City, and in so doing has considered the following:
(a) SLUC's most recent available income and expense
statement for the System;
(b) SLUC's most recent available balance sheet for the
System, listing assets and liability and clearly
showing the amount of contributions-in-aid-of-
construction and the accumulated depreciation
thereon;
(c) A statement of SLUC's existing rate base for
regulatory purposes as it relates to the System;
The physical condition of the System;
(d)
(e)
(f)
(g)
(h)
(i)
The City
The reasonableness of the purchase price and terms;
The impacts of the purchase on utility customers, both
positive and negative;
Any required additional investment and the ability and
willingness of the City to make that investment;
Alternatives to the purchase and the potential impact
on utility customers if the purchase is not made; and
The ability of the City to provide and maintain high-
quality and cost-effective utility service.
Council's determinations and findings regarding the
3
items listed above are set forth in the Briefing Document,
is hereby adopted and incorporated into this Resolution.
which
This
Resolution and the Briefing Document are intended and declared to
be the statement required under Section 180.301, Florida
Statutes, demonstrating that the acquisition of the water and
sewer lines compromising the System and the leasing of the
wastewater package plant with an option to purchase are in the
public interest. Furthermore, the Briefing Document contains a
summary of the City's experience in water and sewer utility
operation and demonstrates that the City has the financial
ability to provide water and wastewater service. Based upon the
Briefing Document and other evidence and testimony submitted and
considered at the public hearing on February 9, 1994, the city
Council hereby determines and finds that it is in the public
interest for the City to receive a donation of the water and
sewer lines comprising the System and lease the wastewater
package plant with an option to purchase as contemplated in the
Briefing Document.
SECTION 2. AUTHORIZING THE SIGNING OF THE AGREEMENT. The
city Council has reviewed and considered the acquisition of the
water and sewer lines comprising the System owned by SLUC and has
also analyzed the Water and Wastewater Service and Contribution
Agreement (the "Agreement"), a copy of which is attached to and
incorporated in this Resolution as Exhibit "A". The city Council
hereby
Clerk
approves the Agreement and authorizes the Mayor and City
to sign the Agreement on behalf of the City. The City
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Council also authorizes its staff and consultants to take all
actions necessary to complete the transaction contemplated by the
Agreement, and further authorizes the Mayor and City Clerk to
sign all necessary documents, before, after and at the conveyance
of the water and sewer lines
contemplated by the Agreement
transaction contemplated therein.
BECTZON 3. CONFLICT. All resolutions or
resolutions in conflict herewith are hereby repealed.
SECTION 4. SEVERABILITY. In the event a
comprising the System as
in order to complete the
parts of
court
of
of
of
competent jurisdiction shall hold or determine that any part
this Resolution is invalid or unconstitutional, the remainder
the Resolution shall not be affected and it shall be presumed
that the City Council of the City of Sebastian did not intend to
enact such invalid or unconstitutional provision. It shall
further be assumed that the City Council would have enacted the
remainder of this Resolution without said invalid and
unconstitutional provision, thereby causing said remainder to
remain in full force and effect.
SECTION 5. EFFECTIVE DATE. This Resolution shall take
effect immediately upon its adoption.
The foregoing Resolution was moved for adoption by Council
Member O~ The motion was seconded by
Council Member D~O and, upon being put to a vote,
/
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the vote was as follows:
Mayor Lonnie R. Powell
Vice-Mayor Frank Oberbeck
Council Member Carolyn Corum
Council Member Norma J. Damp
Council Member Robert Freeland
The Mayor thereupon declared this Resolut~
adopted on this ~ day of _~~~__, 1994.
ATTEST: By: //~/9 ~'~
~n~'e Ri Powell,
Kathr~n M. O'Halloran, CMC/AAE
City Clerk
(Seal)
on duly passed and
Mayor
ApproVed as t~rm and Content:
Charles Ian Nash, City Attorney
6
Z? ,
CITY OF SEBASTIAN, FLORIDA/
SEBASTIAN LAKE ASSOCIATES/
SEBASTIAN LAKES UTILITY COMPANY
WATER AND WASTEWATER SERVICE AND
CO~UTION AGREEMF~NT
1994 among the CITY OF SEBASTIAN, FLORIDA (hereafter
SEBASTIAN LAKES UTILITY COMPANY (hereafter "SLUC,) a corporation
authorized to do business in the State of Florida, and SEBASTIAN
LAKES ASSOCIATES (hereafter "SLA"), a Florida general partnership,
relating to the provision of water and wastewater utility services
to a project knows as SEBASTIAN LAKES located in the City of
Sebastian, Florida.
RECITALS
1. SLUC, pursuant to a franchise with the CITY, currently
provides all water and wastewater utility services within the real
property described as ~ attached to and incorporated in
this Agreement (hereafter "Sebastian Lakes).
2. SLAowns the undeveloped property within Sebastian Lakes.
3. The SLUC is interested in terminating its franchise with
the CITY, and arranging for the provision of utility services to
Sebastian Lakes by the CITY.
4. The CITY will, upon the termination of the franchise
become the exclusive provider of water and sewer services in
Sebastian Lakes.
' 5. The CITY is proposing to provide wastewater services to
Sebastian Lakes by owning, operating and maintaining the onsite
wastewater collection and transmission system ("Onsite Wastewater
System',) and by connecting the 0nsite Wastewater System to the
CITY's wastewater treatment and disposal system ("City Wastewa~er
System") by the construction of a new wastewater pipeline as
described in this Agreement.
6. SLUC shall transfer or cause to be ~ransferred to ~he
CITY the Sebastian Lakes 0nsite Wastewa=er System described in
Exhibit "B" hereof attached and incorporated herein.
FTL\HALL~\51440,3\01/18/g4
7. SLUC and/or SLA shall pay the appropriate wastewater
capital charges and other contributions in aid of construction to
the CITY for the connection of the existing users to the CiTY
system and for the cost of constructing certain improvements to the
CITY's wastewater system.
8. The construction of the new wastewater pipeline is
expected to be completed in two years. During that two-year period
the CITY will provide wastewater treatment and disposal services to
Sebaszian Lakes by leasing from SLUC, and operating and maintaining
the existing SLUC wastewater treatment and disposal facilities.
9. SLUC currently provides water services to Sebastian
Lakes. SLUC obtained water from General Development Utilities
("GDU") through the Agreement and amendment thereto, which are
attached hereto and incorporated herein as Exhibit "C"
(hereinafter, the "Water Service Agreements,)..
10. The CITY has purchased the GDU Utility System as of
December 17, 1993 and, therefore, has become the provider of
potable water to Sebastian Lakes. Sale of water by the City to
Sebastian Lakes shall be in accordance with the City's rate
ordinance and rate resolution in lieu of the former GDU Agreement
except as provided by Section 4 herein.
11. SLUC will convey the water distribution system within
Sebastian Lakes ("0nsite Water System") to the CITY at the same
time that it conveys the 0nsite Wastewater System so that the CITY
will become the utility which provides potable water service to
Sebastian Lakes. These assets are described in Exhib~ ~D"
attached and incorporated in this Agreement.
12. The parties by this Agreement wish to set forth their
agreement as to their respective rights and obligations regarding
the provision of utility service to Sebastian Lakes by the CITY.
ACCORDINGLY, in consideration of the above Recitals and
benefits to be derive~ from the mutual observation of the covenants
conZained herein, and other good and valuable consideration the
receipt and sufficiency of which are hereby acknowledged by the
parties, the parties agree as follows:
t_~9_q~~. Ri~. The above recitals are true and
correct, and form a material part of this Agreement.
Si_S_S~. Conveyance_of Water Distribution Facili. Di~.. and
Wastewater Collection FaciliZie~. Within ninety (90) days of the
daze of this Agreement ("Closing Date") SLUC shall sell, assign,
FTL\HALLB\51440.3\01/18/94
2
transfer, convey and deliver to the CITY, and the CITY shall accept
all the right, title, and interest in and to the Onsite Water
System and Onsite Wastewater System as described on E3d~ibi~s "B"
and "D" hereof. SLA and SLUC shall also cause to be transferred
and conveyed to the CITY all rights, privileges, easements,
licenses, prescriptive rights, rights4of-way, and rights to use
public and private roads, highways, streets for the construction,
reconstruction, maintenance, and operation of the said 0nsite Water
System and 0nsite Wastewater System. SLA and SLUC shall exercise
their best good faith efforts to obtain such easements, as deemed
necessary by the CITY for the operation, construction,
reconstruction, maintenance, and repair of the said 0nsite Water
System and Onsite Wastewater System (collectively "0nsite
Systems"). In connection with said conveyance SLUC shall provide
to the City a set of as-built plans certified to the City in the
manner described in ~xhibi~."E,. Furthermore, SLA and SLUC shall
transfer any and all extant permits and governmental authorizations
and approvals necessary to operate and maintain the said Onsite
Systems in accordance with all governmental requirements, as well
as any permits or approvals related to the Package Plant (as
hereinafter defined). Other than the obligations it assumes under
this Agreement, the CiTY shall not be required to make any cash
payments in exchange for the said Onsite Systems.
~Q_r~. Wastewater Services..
3.1. Provision of Wastewat~r Service~. The City shall
provide wastewater transmission, treatment and disposal services to
Sebastian Lakes by constructing a wastewater pipeline between
Sebastian Lakes and the City's Wastewater Treatment Plant
("Wastewater Line"). During the two-year period that the
Wastewater Line is under construction, the City shall provide
treatment and disposal services to Sebastian Lakes by leasing and
operating the SLUC onsite Wastewater Treatment and Disposal System
as described in Section 3.3 below. If the City fails to commence
construction of the Wastewater Line on or before eighteen months
from Lease CoLL~encement Date (as Lease Commencement Date is defined
in Subsection 3.3.2).' ("Wastewater Line Construction Date") or if
the. City fails .to complete construction of the Wastewater Lin~ on
or before the Termir~tion Date of the Lease (as defined in
Subsection 3.3.2), then the City shall be required to construct a
lift station and connect the Sebastian Lakes Onsite Wastewazer
System to the County's force main located on State Road 512
("County Wastewater System"). If the City has commenced
construction of the Wastewater Line by the Wastewater Line
Construction Date and has completed the Wastewater Line by the
Lease Termination Da~e, ~hen the City shall construc~ a pumping
F"r L\ HALLB\51440.3\01 / 18/94
station and connect the Onsite Wastewater System to the Wastewater
Line.
3.2. Contri~u.tlOnS to the cit~ for wastew~er ~erv$c~.
SLUC and/or SLA shall make the following payments to the City.
$178,000.00 - If Sebastian Lakes Onsite Wastewater System is
connected to the County Wastewater System, this money
shall be used by the City to pay the County the
connection charges to connect the 64 residential units,
the recreation center for Sebastian Lakes and the County
Library (collectively the "Existing Customers',) to the
County System. If Sebastian Lakes is connected to the
City Wastewater System, this payment shall be allocated
in the following manner:
$115,500.00 for the connection charges to the
City WaStewater System for the Existing
Users;
31,250.00 contribution in aid of construction
for the Wastewater Line;
31,250.00 credit toward future connection
charges to the City Wastewater System;
$ 20,000.00 This payment shall be used by the City to
construct a pump station to connect the Onsite Wastewater
System to the City or County Wastewater System.
These funds (collectively "Sebastian Lakes Wastewater
Contribution,,) shall be paid to the City within ninety (90) days of
the date of this Agreement to be held in escrow by the City.
Attorney. Upon payment of the Sebastian Lakes Wastewater
Contribution to the City, SLA and SLUC shall have no further
financial obligation for the connection of the wastewater
collection system to the City or County system or for the provision
of wastewater utility service to the Existing Customers. The
Sebastian Lakes Wastewa~er Contribution may be paid over to the
City when the Was~ewater Line has been completed, provided
construction of the Wastewater Line is commenced before 'the
Wastewater Line Commencement Date and is completed prior to the
Lease Termination Date; or if such deadlines for construction and
comple~ion of the Wastewater Line have not been met by the City,
then the Sebastian Lakes Wastewater Contribution shall be paid to
the City from the escrowed funds held by the City Attorney when the
City applies to the County for the connection of the Existing
Customers to the County System.
F'TL\ HAI.~\$1440.3\01 / 18/94
Svstem.
3,3.
Lease o~. 0nsite Wastewater TreaDme~t and DisPosal
3.3~.1. Description of Faci!iDie~. SLUC hereby leases
to the CITY, SLUC's 0nsite Wastewater Treatment and Disposal System
to include the facilities described in Exhibit "F" (hereinafter
referred to as the "Package Plant.).
3.3.2. Term. The term of this lease shall commence
ninety (90) days from the date of this agreement ("Lease
Commencement Date") and shall terminate two years from the
Commencement Date ("Termination Date"). However, if the CITY has
begun construction of the Wastewater Line on or before the
Wastewater Line Construction Date, but the Wastewater Line has not
yet been completed, then the ~erm of this lease shall be extended
for a period of not to exceed six months ("Extension Period"), upon
a written request by the CITY sent to SLUC, or SLUC's assignee
prior to the Termination Date. If'the Term of Lease is extended as
permitted by this subsection, then the Termination Date shall
become the last day of Extension Period. The CITY may terminate
this lease earlier than the Termination Date if the CITY has
completed the Wastewater Line.
3.3.3. Rental Payment. The CITY shall pay to SLUC One
Dollar ($1.00) per year for the lease of the Package Plant. SLUC
hereby acknowledges payment in advance for the two4year lease
period.
3.3.4. Use.and Operation of Packaq~ plant. The CITY
shall, during the Term of the Lease and any extension thereto,
operate the Package Plant in accordance with all permits and
statutes, laws and regulations, which affect the operation of such
facilities, or which regulate the use of any materials in used in
connection with the operation of the Package Plant. The CITY shall
maintain the Package Plant in a manner which is consistent with
reasonable engineering practice in order to ensure that the Package
Plant provides treatment and disposal services for the benefit of
Sebastian Lakes for-' the Term of the Lease and any extension
thereto; and in order ~o ensure that the Package Plant does not
cause damage, or environmental contamination, to the underlying
land or to adjacent property.
.3.3.5. Sale. of Package Plant. SLUC hereby grants to
the CITY an option to purchase any or all of the Package Plant,
exclusive of any real property and exclusive of the percolation
ponds, for One Dollar ($1.00). This option may be exercised by the
CITY by the CITY providing SLUC or its assigns with written notice
that it is exercising its option pursuant to this subsection. This
FTL\ HALI..B\51440.3\01 ! 18/94
5
option shall expire upon the Termination Date. If the CITY
exercises its option pursuant to this subsection, the City shall be
required, at its own cost, to dismantle or remove the Package Plant
facilities that it is purchasing in a manner which does not create
any damage to the Sebastian Lakes property. If the City does not
exercise its option, the City shall have no responsibility for
abandoning and dismantling the Package Plant.
3,4. Purchase of..Addi~ional Wastewater Ser~_.ice Capacity
From the CITY to Service Sebastian..Lnak~s. SLA, or its successors
in interest to all or any portion of Sebastian Lakes
("Successors"), shall be permitted to purchase additional ERUs of
wastewater service capacity as needed to service the future
development authorized by the Sebastian Lakes Developer's Agreement
("Future Customers") approved by the City Council on December 15,
1993. If SLA or its Successors applies for additional wastewater
capacity to service Future Customers prior to the construction of
the Wastewater Line, the City shall provide wastewater service to
those Future Customers by the same method as it is providing
service to the Existing Customers pursuant to this Agreement.
Prior to construction of the Wastewater Line and the connection of
the Sebastian Lakes Onsite Wastewater System to the City Wastewater
Treatment Plant, the City shall be required to make a determination
that the City Wastewater Treatment Plane will have sufficient
capacity to service Sebastian Lakes. That determination shall be
made in the following manner. The City shall calculate the flows
from Existing Customers and any Future Customers that come on-line
prior to the date the City is making the determination. In
addition, the City shall request from SLA or its Successors in
title to the undeveloped property within Sebastian Lakes, a
schedule for build-out of the undeveloped property. If SLA or its
Successors fail to provide such information within 30 days of such
a request by the City, then the City may make reasonable
assumptions based upon the status of development approvals at the
time of the determination and based upon an anticipated 36 month
build-out from. the date of all development approvals. Using those
sources of information, the City shall be required to make a
determination prior.'to co~Lencing the Wastewater Line, that .the
City will be able to service Sebastian Lakes. If such service
cannot be provided by the City, then the City shall connect
Sebastian Lakes to the County Wastewater System. If such
wastewater service is provided by a connection to the County
Wastewater System, or if the City has not yet conneczed Sebastian
Lakes to the City Wastewater System, the City shall be entitled to
charge Future Customers the County wastewater connection fee as a
precondition to providing wastewater service to the Future
Customers.
FTL\HALLB\51440.3\01/18/94
3.5. Provis.ion of Wastewater Service. Upon completion
of the connection and construction of the Sebastian Lakes raw
sewage pumping station and the Wastewater Line, the CITY shall
become the exclusive wastewater service provider to Sebastian
Lakes, and the customers on said lands shall be responsible for the
payment of all rates, fees, charges, and deposits in accordance
with City Rate Resolutions and Ordinances. Payment of wastewater
user charges shall based upon consumption of water as measured by
the existing water master meter constructed pursuant to the Water
Service Agreements.
Si~. Provisio~of Potable. Water S~rvice. Sebastian
Lakes is presently served with potable water pursuant to the Water
Service Agreements. As of December 17, 1993, the City acquired GDU
and now provides potable water service to Sebastian Lakes in
accordance with the Water Service Agreements. Pursuant to the
Water Service Agreements, SLUC has a remaining credit of $80,327.36
toward future connections to the CITY's potable water system ("GDU
Credit"). SLUC hereby assigns the GDU Credit to SLA and such
assignment is approved by the CITY. At present, the CITY does not
levy a Guaranteed Revenue Charge so SLA shall not, at this time, be
required to pay said Charge in order to maintain the GDU Credit.
Should the CITY ever adopt such a Charge, then SLA shall be subject
to such-charges in accordance with City Rate Resolutions and
Ordinances. Should SLA fail to pay such Charges as required by
City Rate Resolutions and Ordinances, then the sole remedy
available to the CITY for such default shall be the loss of the GDU
Credit and any reservation attributable to that credit.
Section 5. Service Standar~. The CITY agrees to comply with
all state, regional, and federal requirements and rules applicable
to the provision of water and wastewater services to the public and
its provision of water and wastewater services under this
Agreement. The CITY does not guarantee any special service,
pressure, quality, capacity, availability or other facility than
what is required to fulfill the provider's duty of reasonable care
to those to whom it provides water and wastewater service.
~9_~~. Representations and Warranties of...SLA a~d SLUC.
To induce the CITY to enter into this Agreement, SLA and SLUC
represent and warrant that, as of the Closing Date:
· 6,~. 0r~anization. St~ndiD~ and Power. SLUC is a
corporation duly organized, v~lidly existing, and in good standing
under ~he laws of the state of its formation, and is authorized to
do business in the State of Florida. SLA is a general partnership
duly authorized organized, validly existing, and in good standing
under ~he laws of the state of its formation, and is authorized to
FTL\HAU.~\51440.3\01/18/94
do business in the State of Florida. SLA and SLUC have requisite
power and authority to own the properties and the water
distribution facilities and wastewater collection facilities, and
to conduct its business as it is currently being conducted.
6.2. Authority for AGreement. SLA and SLUC have the
power and authority to execute and deliver this Agreement and to
carry out their respective obligations hereunder. This Agreement
has been duly authorized by all action required to be taken by SLA
and SLUC, has been duly executed and delivered by SLAand SLUC, and
constitutes a valid and legally binding obligation of SLAand SLUC,
enforceable in accordance with its terms. The execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereby will not conflict with or result in any
violation or default under (with or without the giving of notice or
the passage of time or both) any provision of the Articles of
Incorporation or By-laws of SLUC, or any mortgage, deed of trust,
indenture, easement, license, lease, agreement or instrument by
which SLA and SLUC are bound, or any permit, concession, grant,
franchise, license, judgment, order, decree, statute, law,
ordinance, rule or regulation applicable to SLA and SLUC.
~.3. Good and Marketable T~le. Except for the matters
described-below, SLA and SLUC have good and marketable title to the
water distribution facilities and wastewater collection facilities.
The exceptions are as follows:
subsequent years;
Taxes and Assessments for the year 1993 and
(2) Restrictions set out in the recorded plats of
subdivisions covered by said facilities;
(3) Easements for utilities and drainage set out in
such recorded plats of subdivisions; provided, however, that none
of the restrictions or easements set out in such recorded plats of
subdivisions shall prevent, hinder or restrict the present or
intended use of the Said facilities;
(4) Zoning restrictions, prohibitions and other
requirements imposed by governmental authority, none of which will
prevent or hinder the present or intended use of the said
facilities, by CITY; and
i5) Restrictions of record (except liens,
encumbrances, or mortgages) that do not impair, restrict, or
inhibit the use of or improvement to the said facilities.
FTL\HALLB\51440.3\01/18/94
_ 6.4. No .LieNs Qr Encumbran¢9~. Except as otherwise
specifically set forth herein, there are no liens, claims,
mortgages or encumbrances of any type or nature upon or against the
0nsite Water System and Onsite Wastewater System including, but not
limited to, financing statements or security instruments filed
under the Uniform Commercial Code either in the County where the
land is located or with the Secretary of State.
5_~. ~. SLUC has no actions, suits, or
proceedings a~ law or in equity which affect or will affect all or
any portion of the 0nsite Water System and 0nsite Wastewater System
r SLA's and SLUC's right and
greement. SLA and SLUG a~r~ ability to make and perform this
~ntinuing duty to disclo~-~and warrant that they shall have a
to and including the Clo~ing Date
une existence and nature of all pending judicial or administrative
suits, actions, proceedings, and orders which in any way relate to
the operation of the said 0nsite Systems. Any such matters now
known to SLA and SLUC shall be initially disclosed within ten (10)
days following execution of this Agreement, and shall be
supplemented each thirty (30) days thereafter, as well as on the
Closing Date.
6.6. NO Coqtracts. i.n Default. The only agreement SLUC
has for the provision of utility service are the agreements which
are attached hereto as ~xhibit "G~.
6.7. No Governm~ntal Violations. SLUC is not aware and
have not been notified of the existence of an viola '
governmental rules, re~.lat~ ..... Y t~ons of any
-ore - ~ ~u~, Permitting conditio .
M rnmenta± re i ns .or other
or operation ofqu rements applzcable =o the ownership, maintenance
System. the Onsite Wa~er System and 0nsite Wastewater
6.8. No Recor~ Violations. The use of
mm ~'~ ~
~=~o= mS consistent
~Cr~n.= ~oes not violate any known restrictions and conditions of
d SLUC s knowledge, in this
Agreement, contains .or will. contain any untrue statement of
material ~acts or omits or will omit to state any mater~al
requzred to make the statemen~ ~^--~ ..... fact
~ ,~=~=~ ¢onua~ne~ not misleading.
· f~-~/. Survival of Covenants. SLA and SLUC agree that
~heir representation and warranties set forth herein are true and
correct as of ~he date of the execution hereof, shall be true and
FTL\HALLR\51440.3\01/18/94
correct at the time of Closing, and shall survive the Closing to
the extent provided herein.
,6-%1- ~_S2~_~. The customers listed on the customer
list attached and incorporated in this Agreement as E~xhibi~ "H"
hereof are in fact current customers of SLUC.
~-~D__Z. Business Conduc~;. Except as otherwise consented
to in writing by the CITY, for the period beginning on the date of
execution of this Agreement and ending on the Closing Date, SLUC
shall:
ordina~ course;
carry on its business in the usual, regular,
(2) maintain all of its material structures,
equipment and other tangible personal property in good repair,
order and condition, except for depletion, depreciation, ordinary
wear and tear and damage by unavoidable casualty;
(3) keep in full force and effect insurance
comparable ina mount and scope of coverage to insurance now carried
by it;
(4) perform in all material respects all of its
obligations under agreements, contracts and instruments relating to
or affecting said facilities and SLUC's properties, assets and
business;
(5) maintain its books of account and records in
the usual, regular and ordinary manner;
(6) comply in all material respects with all
statutes, laws, ordinances, rules and regulations applicable to it
and to the conduct of its business;
(7) not enter into any transaction, including
without limitation,-'the purchase, sale or exchange of property
wit~, or the rendering Qf any service with any individual or entity
except in the ordinary' course of and pursuant to the reasonable
requirements of the business of SLUC.
· 7,~. Risk of Los~. SLA and SLUC shall bear the risk of
loss for the said facilities up to and including the Closing Date.
7.2. NO Encumbrances. From and after the date of the
execution of this Agreement, SLA and SLUC will not, without the
FTL\ HALL8\,~ 1440, 3\01 / 18/~4 10
prior written consent of the CITY, dispose of or encumber all or
any portion of the said facilities.
7,~. Access to Records. SLA and SLUC will reasonable
cooperate by opening regulatory maintenance and customer records,
providing access to such records and facilities to assist in
acquainting the CITY's operating and administrative personnel in
the operation of the said facilities.
7.4. Examina~iQ~ and Insoection. SLA and SLUC will
permit full examination by the CITY's authorized representatives of
all existing contractual obligations, physical systems, assets,
real estate, rights-of-way, easements and inventories to be
utilized by the CITY in connection with the said facilities.
~. R~pre$entati0.n$ aD~ Warranties. of the CITY. To
induce SLA and SLUC to enter into this Agreement, the CITY
represents and warrants as follows:
8.1. Qr~anization .... Stand%n~ and Power of the CIq~. The
CITY is a municipal corporation duly chartered and validly existing
under ~he laws of the State of Florida and has all requisite
municipal power and authority to enter into this Agreement, and to
carry ou~ and perform the terms and provisions of this Agreement.
8.2. Authoritv for A~r~men~. The CITY has the
authority and power to execute and deliver this Agreement and to
carry out its obligations hereunder. This Agreement has been duly
authorized by all municipal action required to be taken by the
CITY, has been duly execuEed and delivered by the CITY, and
constitutes a valid and legally binding obligation of the CITY,
enforceable in accordance with its terms. '
8,$. i~. No representation or warrant made by
~he CITY, to the best of the CITY's knowledge, in this Agreement
contains or will contain any untrue statemenZ of material facts or
omits or will omit to. state any material fact required to make the
statements herein contained not misleading.
~Q_~. Proof 'of Taxes Paid. SLA and SLUC shall furnish
proof ~ha~ any applicable taxes to the Closing Date have been paid
which are applicable to said facilities.
~9_q_~~. ~. The cost of recording any releases,
satisfactions, corrective instruments, documentary stamps, and
surtax, if any, on the assignmen~ of easements or other documents,
and the cost of recording all easements and assignment of easements
shall be paid by SLA and SLUC.
~L[Q~. Status of Facilitie~.~. SLAand SLUC represent and
the CITY agrees that, except as provided in this Agreement, the
0nsite Water System and 0nsite Wastewater System are being conveyed
"as is." However, to the extent that the City incurs costs in
repairing said 0nsite Systems within one year of this Agreement,
which repairs result from a latent defect known to SLUC or SLA at
the time of this Agreement, or which would have been known to SLUC
or SLA had the utility been operated in a reasonable manner which
is usual and customary to such utilities, SLA and SLUC shall be
jointly and severally liable for the City's reasonable costs of
such repair. If a dispute arises between the City and SLUC or SLA
as to whether a required repair has resulted from a latent defect
which would have been known to SLA or SLUC had the utility been
operated in a reasonable manner which is usual and customary to
such utilities, the parties shall engage an independent engineer to
make the determination and 'the cost of the engineer shall be
chargeable against the party found responsible for the repair. The
term latent defects shall not include a repair resulting from
ordinary wear and tear to the system that has occurred or occurs
prior to or after the date of this Agreement. Neither shall it be
considered a defect that the 0nsite Systems are PVC pipe systems.
12.1. The City hereby agrees, to the extent permissible
by law, to indemnify and hold harmless, SLUC and SLA from and after
the Closing Date against any damages, as hereinafter defined, from
claims of any person or entity not a party to this Agreement which
arises out of: (1) any materially inaccurate representation made
by the City in or under this Agreement; (2) breach of any of the
warranties made by the City in or under this Agreement; (3) breach
or default by the City in the performance of any of the covenants,"
conditions, commitments, agreements, duties or obligations to be
performed by it hereunder; (4) any debts, liabilities or
obligations of the City incurred or accrued by the City relating to
the Package Plant or 0nsite Systems during the Term of the Lease.
SLA or SLUC shall notify the City of any such claims within thirty
(30) days of its receipt of notice thereof. Damages, as used
herein, shall include any obligations, losses, costs, expenses,
injdnctions, suits, fines, liabilities, penalties, and damages,
including reasonable attorneys' fees, whatsoever that SLA or SLUC
incurs as a result of judgment or order rendered by a court or
agency of. competent jurisdiction. The obligations of the City
contained herein shall survive the Lease Termination Date for a
period of one year.
~. SLAand SLUC shall, and hereby agree to, indemnify
and hold harmless, the CITY from and after the Closing Date against
any damages, as hereinafter defined, from claims of any person or
entity not a party to this Agreement which arises out of: (1) any
materially inaccurate representation made by SLA and SLUC in or
FTL\HAU,.~\~ 1440.~1~01/1 S/g4
12
under this Agreement; (2) breach of any of the warranties made by
SLA and SLUC in or under this Agreement; (3) breach or default in
the performance by SLA and SLUC of any of the covenants,
conditions, commitments, agreements, duties or obligations to be
performed by it hereunder; (4) any debts, liabilities or
obligations of SLA or SLUC incurred or accrued prior to the Date of
Closing. The CITY shall notify SLA and SLUC of any such claims
within thirty (30) days of its receipt of notice thereof. Damages,
as used herein, shall include any obligations, losses, costs,
expenses, injunctions, suits, fines, liabilities, penalties, and
damages, including reasonable attorneys, fees, whatsoever that the
CITY incurs as a result of judgment or order rendered by a court or
agency of competent jurisdiction. The obligations of SLA and SLUC
contained herein shall survive the Closing for a period of one
year.
~~k_~. Covenan.t Not TO En~aq~ in Competition; ExceDti0m
r~o Exclusive Service. So long as the CI~TY constructs the
Wastewater Line or otherwise provides wastewater service to
Sebastian Lakes for the Existing Customers and Future Customers,
SLA and SLUC agree that neither shall engage (the "shall" being
used in a mandatory definition) in the business of providing water
and/or wastewater service to Sebastian Lakes. However, if the CITY
shall fail to provide wastewater utility service to Sebastian
Lakes, then SLA and SLUC shall have the right to provide
wastewater service to Sebastian Lakes or make other arrangements
to obtain wastewater service from a third party provider subject to
applicable law.
i~~_~. ~. Provided that all conditions precedent
to closing have, in fact, been so performed, the place of closing
shall be at the City Hall of the City of Sebastian, Florida.
Failure of the transaction contemplated by this Agreement to close
on or by the Closing Date due to the actions or failure to act of
SLA or SLUC or CITY shall constitute a default in this Agreement
and entitle the non-defaulting party to exercise any and all
remedies available to it. Immediately following the Closing Date,
the CITY shall have full right to the possession of all of the said
facilities wherever the same may be located.
~QD_~. Closin~ Documents and Procedures. At least ten
(10) days prior to the Closing Date, SLA and SLUC shall deliver to
the CITY:.
(1) An instrument of conveyance, in appropriate
recordable form, of all the easements or other interests in real
property applicable to the water distribution facilities and
wastewater collection facilities described in ~xhibi~$ "B" a~d ."D"
hereof, conveying to the CITY all of its right, title and interest
in all such property, together with all utility improvements
FTL\HALL~\5'I440.3\01/18/94
13
thereto, and warranting that such easement rights and rights to use
dedicated rights-of-way are free and clear of all liens, security
interests, encumbrances, leasehold interests, charges or options,
covenants or restrictions;
and transfer.
(2)
Bills of sale or other documents of assignment
approvals;
(3) List of Existing Customers.;
(4) Ail permits, governmental authorizations and
(5) Mechanics lien affidavit as to personalty
(6) Documentation acceptable to the CITY evidencing
the proper authority of the individual executing the closing
documents on behalf of SLA and SLUC; and
(7) Such other documents necessary to effectuate
the transaction contemplated by this Agreement, as determined by
the CITY.
~Q~-~--%~. Responsibility fQr Professional Fee~. and Costs.
Each party hereto shall be responsible for its own attorneys, fees,
engineering fees, accounting fees and other cost in connection with
the preparaCion and execution of this Agreement.
~~-/. Assi~¢rnabilitv. This Agreement shall not be
assignable by SLA and SLUC or t~e CITY without the prior written
consent of the other party hereto, which consent shall not be
unreasonably withheld. Nothing in this Agreement, express or'
implied, is intended to confer upon any person, other than the
parties hereto and Cheir successors, any rights or remedies under
or by reason of this Agreement.
~~3~. Accounts Receive_hie. The sale contemplated by
this Agreement shall.not include any accounts receivable or other
debts and receivables due to SLA and/or SLUC in respect to' the
operation of the wastewater collection facilities Chrough the
Closing Date. Or shall Che CITY be responsible for the collection
for any accounts receivable occurring up to and including the
Closing Date. If after the Closing Date, the amounts received by
the CiTY include receivables related to service provided by SLUC
prior Co the Closing Date, then said amount received shall be
delivered to SLUC. The CITY's determination of amount shall be
final.
14
~-~Q~. Commissions. Both SLA and SLUC and the CITY
warrant to the other that the transaction completed by this
Agreement is a direct, private transaction between SLAand SLUC and
the CITY without the use of a broker or commissioned agent.
Q~. Further Assurances. Each of the parties hereto
agrees that, from time to time, upon the reasonable request of the
other party and at the expense of the requesting party, without
further consideration, it shall execute and deliver to the
requesting party any and all further instruments, affidavits,
conveyances and transfers as may be reasonably required to carry
out the provisions of this Agreement.
S_~_~~. Notices; Proper FDr~. Ail notices which are sent
to any of the parties shall be sent by registered mail, return
receipt requested or by federal express or other overnight mail
wi~h proof of mail to the address as shown below:
As to Utility:
As to Associates:
As to the City:
Sebastian Lakes Utility
c/o Chase Manhattan Real Estate
Finance
101 Park Avenue
New York, New York 10178
Attn: Kevin Ward
Sebastian Lakes Associates
c/o Chase Manhattan Real Estate
Finance
101 Park Avenue
New York, New York 10178
Attn: Kevin Ward
Utilities Director
City of Sebastian
1225 Main Street
Sebastian, Florida 32958
SD_QSj~. Entire AGreement. This instrument with attached
Exhibits constitutes the entire Agreement between the parties and
supersedes all previous'discussions, understandings, and agreements
between the parties relating to the subject matter of this
Agreement.
S_~. ~9_~. Amendments to and waivers to ~he
provisions herein shall be made by the parties only in writing by
formal amendment.
F'rL\~a.L~\S~440.3\O~/~
This
Agreement is solely for the benefit of the formal parties and
Successors (as herein defined), and no right or cause of action
shall accrue upon or by reason hereof, to or for the benefit of any
third party not a formal party hereto.
~. Bi~in~ Eff~c~.. All of the provisions of this
A~reement shall be bindin~ upon and inure to the benefit of and be
enforceable by legal representatives, successors and nominees of
the CITY and SLA and SLUC.
~=Q-~- Time of the Essen~n. Time is hereby declared of
the essence to the performance of this A~reement.
~-Q-~- Applicable L~f. This A~reement shall be
construed, controlled,-and interpreted accordin~ to the laws of the
State of Florida.
~. R m~. In ~he event that any party to this
A~reement fails to perform or abide by any of the terms,
provisions, covenants or obligations contained in this A~reement,
the non-defaultin~ party shall have the right to exercise or
utilize any appropriate remedies available to it for the
enforcement of the terms and conditions of this A~reement by
whatever means are provided by law or in equity, including, but not
limited to, the right of specific performance.
~9~Q~. ~onsistencv Qf Wast~wate~.
Pretreatment Reouirement~. SLA and SLUC by the
recordation of this A~reemeht hereby provide notice to ~uture
Customers that the sewage to be treated by the CITY is required to.
be in compliance with any pretreatment requirements of the CITY or
any other ~overnmental entity or agency. SLA shall record this
A~reement along with Exhibit A to the A~reement at its own cost to
provide such notice.
Upon the Closing, any franchise now held by SLUC, copies of which
are attached to and incorporated in this A~reement as ~,
shall terminate, and all rights, duties, and obligations thereunder
shall cease and be void as of the Closing Date.
16
e ~. ONE~. RADON IS A NATURALLY OCCURRING
RADIOACTIVE GAS THAT, WHEN IT HAS ACCUMULATED IN A BUILDING IN
SUFFICIENT QUANTITIES, MAY PRESENT HEALTH RISKS TO PERSONS WHO ARE
EXPOSED TO IT OVER TIME. LEVELS OF RADON THAT EXCEED FEDERAL AND
STATE GUIDELINES HAVE BEEN FOUND IN BUILDINGS IN FLORIDA.
ADDITIONAL INFORMATION REGARDING RADON AND RADON TESTING MAy BE
OBTAINED FROM YOUR COUNTY PUBLIC HEALTH UNIT.
IN WITNESS WHEREOF, the parties have executed this Agreement
on the date specified below with the City authorize¢ to execute
thais. Agreement by City Council Action on the ~ day of
FTL\ HAI. LB\~ 1440, 3\01 / 18/94
17
ATTEST
~l~y u±er~, City of Sebastian
Appro/~form and content:
Charles Ian Nash, City Attorney
AFFIX NOTARY STAMP
STATE OF F~R~DA
COUNTY
The fo
day of ~%~%~.i. nstrument was acknowledged before me this
1994, by ~/~/~ ~. ~~ i , a~
~Y~/~' of CITY OF SEB~TI~, a Florilldallmunicipal
co~oration, on behalf of the co~oration.
S~t~re of ta~ P~iC
(Print Nota~ Name)
My Commission E~ires:
Commission No.:
Personally ~o~, or
Produced Iden=ification
~e of Identification Produced:
FTL\HALL~\~ 14AO.3\O1/18/g&
18
WITNESSES
Name:
Name:
SEBASTIAN LAKES UTILITY
Address: % Chase Manhattan Real
Estate Finance
101 Park Avenue
New York, New York
10178
STATE OF ~ ~E~ y~.~
COUNTY OF~_~_~
The foregoing instrument'was acknowlDdged b~fore me this /~7~
day of~7'~/J~ ~ , 1994, by ~7~ ~ ~-Wc D~~ ,--~
~/~';- / of SEB~TI~ ~S ~iLITY COMPS, a
~~/~ corporation, on behalf of the corporation.
- ' g~ure ~f
Notary Public
AFFIX NOTARY STAMP
(print ~otaryName)
My Commission Expires:
Commission No.:
~/Personally known, or
[] Produced Iden~ifica=ion
Type of Identification Produced:
JUDY M. HANDWERKER
Nota,-y Public, Slate of New York
No. 24-5Ol1114
QuAlified in KJflgt C~unlv ~.--
FTL\HALLB\51&&0.3\01/~8/9&
19
WITNESSES
ASSOCIATES:
SEBASTIAN LAKES ASSOCIATES
Name:
Name:
By: St. Paul Corporation, a
Maryland corporation/
Name: _T~ ~ iF f~. ~'~ ~
Title: ~g~ ~ ~
Address: % Chase Manhattan
Real Estate Finance
101 Park Avenue
New York, NY 10178
STATE OF
COUNTY
The f~oregoing instrument was acknowledged before me this /~~
day o%~7'~W~~ , 1994, by 6~U /~a~)O~w~ , as
~::),'~'~5~l~-r / of St. Paul CorPoration, a "Ma~land
co~oration, as ~&/~~ of SEB~TI~ ~S ~ILITY
COMP~'~
Si~tUre of Notary Public
AFFIx NOTARY STAMP
(Print Notary Name)
My Commission Expires:
Commission No.:
~/Personall¥ known, or
~] Produced Identification
Type of Identification Produced:
JUDY M. HANDW~RKER
Notary PuBlic, Stile ot New York
NO. 24-5011114
Qualified in KIn~ ~unty ~r
FTL\HALLB\51A~O.3\O1/18/g&
20
Exhibit A
Exhibit B
Exhibit C
Exhibit D
Exhibit E
Exhibit F
Exhibit G
Exhibit H
Exhibit I
LIST OF EXHIBITS
Legal Description
Onsite Water System
GDU Agreement
Onsite Wastewater System
Certification of Engineer
Package Plant
Contracts of S~UC
Customer List
Franchise Ordinance
FTL\HALLB\S 1&&0.3\01/18/94
21
Exhibit A
Ail of the Plat of Sebastian Lakes, Unit 1, as recorded in
Plat Book 12, Page ll-A of the public records of Indian River
County, Florida.
FT~\HAJ.~\~1440.3\01/18/94
Exhibit B
The Onsite Water System shall be those facilities shown on the
drawing entitled "Sanitary Sewer and Water Distribution System As-
Builts" prepared by Caufield &Wheeler, Inc. under Job Number 2348,
dated 11-12-93 and bearing a final revision date of
;T L\ H~ ~;~\5 ~ 440. 3\O ~ / ~ 8/94
Exhibit c
GOU Agreement
FTI.\HAU.B\51440.3\Ol/18/94
.'~l;'
1'"~;r~ r.:' 1r'-. -:c<~
r,
. ~nQ oct:,wQ:cn ::iI::BI\s'rIAN l.A~~ 1\::al:)..........L/\lI~::a ner(n.na~lc:~r rCHc=rL"ea to ilS Ulo:v\:........lA:. ........
,:I-lE~L OEVELDPHF;U"r UTILITIES, INC., a Florida corporation, '.herelnafter*reierred to
; Uti! i ties..
WI TNES$ETH
WHEKE1'"~. Ut.ilities owns and operates wat.er treatment facilities in Indian R:'."":r
Ju.,ty capable of so!:rvinq Developer in addition to the present conswners of Util:":_.~"e!:
:'ld,
WHEREAS, Cevelopez has requested Utili~ies to serve a 416 mUlti-family proj~~~, ~n'
:le property described in the attached Exhibit itA"; an.d,
WHEREAS. Utilities proposed to serve the consumers within the areas encompas~ed.~y
eveloper; ana.
WHEREAS, Utilities has a9reed to furnish water and said property. and to enter into
,n Aqreement with Developer specifyin9 ~rovisions and terms concerning same.
NO; THEREFORE, f'or and in considera tion of the lnutua.l promises and obliqations
,ereinafter set forth, the parties do hereby aq~ee as follows:
~. UTILITIES AGREES.
1.
To furnish to those CUstomers located on the property described in Exhibit -A-,
.
., .~
~urinq the term of this Agreement or" any renewal or extension hereof. potab~e treated
wa~er in accordance with standards of the state regUlatory 4qencies of the State of
Florida.
2.. To furnish water at a reasonable constant.normal pressure in accordance with
publio health requirements.. Emergency failure of pressure, or" supply due to breaks" in th(
main wat.er SUPPlY line and/or power f'ailure, flood, eire and use of water to fight fi1:'es.
catast.rophes z.nd ot.her matters beyond the control of Utilities shall exeuse Utilities
{roa the provisicns hereOf for such reasonable ~eriod of time as may be necessary to
restore service to normal conditions.
3. It yill, at all times, operate and maintain its treatment facilities in an
efficient manner anp will take such action as may be neces~ary to provide the capacities
required. Circumstances resulting in the temporary or partial (ailure to deliver water
as required by this Aqreemen~ shall be r~edied ~ith all reasonable dispatch.. In the
event of an extended shortage of water~ or the supply of water available to Utilities
for distribution to its Custolners is otherwise dirninished. over an extended. period of ti.Dle
-"'.. ..........1... ,.., .........,.,.r to:. the DeveloDer's consumers shall be reduced or dimini::hed in the
,";.,"
r" '"':rn'I(.:' .1Ir'1llI_-"_:":._~''''' f"
~~CLO or proportion as the s. 1y to Ut~lities' Customers is
.uced or diminished:~
"
4. . To provide wal:.er in such quantil:.y a.s may be required by CUSl:.omer,. up to "but not
exceeding an average monthly amount of 112,300 gallons per day.
3. DEVELOPER AGREES:
1. To conatruct a water main from. Barb~r Street and Landsdowne Street to the
:)Qunaary of Sebastian La.kes on taconia Street and. install a meter box, meter, and water
facilities as defined by Utilities at time the plans are approved by Utilities for"
::onstruction.
2. Upon completion of construction of the water facilities and Utilities enqineer
:lpproval, Developer shall convey those water facilities to Utilities by a Bill of ~1.:!
~nd will prOvide Utilities with a. No Lien Affidavit, a Release of Lien, a deta~led east-
;)f construction, and a certified reproclucible set of as-builts of the water lines aescriJ~ed
in this paragraph. This paragraph shall .be a condition precedent to Utilities pro....:...::.n.;;
3.ny service ana any responsibility for Utilities to operate said facilities. Upon
. -.--....
:ompletion of the terms of this paragraph, Utilities shAll und~rtake ownership, OP~-.~ion
lnd maintenance of all water facilities up to the water meters.
J. Developer shall construct all WAter lines required to be constructed within the
?rw'lperty described in Exhibit "'.\-, and t~ the point of conn~etions on Barber Street.
iJhenever Utilities has the right of consent or approval., such consent or approval '?Ic'e.ll
be granted or denied. within 45 days of request, in any event 'it shall not be um::easonably
~iehheld. All the COnstruction shall bc subject to the approval by the Utilities' enqineer.
O'~inq the entire period of construction, Utilities shall have tne" riqh~ to have it~
'!nqineer inspect the construction of said facilities. No applir.-ation for necessary permits
shall be executed. or approved by Utilities until plans anc1 specifications for construction
havQ been reviewed and approved by Utilities' enqineer. Prior to transfer of ownership
of water facilities, it is expressely aqreed anc1 understood by and between the parties
l:O this aqreement: that Utilities shall not be liable for any damage- or injury which may
be Sustained by said Developer or other pe:son reSultinq from the carelessqess, neqliqence,
~r improper conduc~ on the part of any other aqents, or employees, or by reason of the
breakage, leakage, or obstruction of the water, sewer or soil pipes, or other leakage in
or about the said land, excepting, however. Ul:.i1ities shall be liable for its misfeasance.
~lfeasance or neglect of its employees, agents Or contractors~
4. To pay Utilities total connection charges in the amount of $96,578.00. which
~r~ ieemized as follows:
~'~I"
I
~r 1':~' .1 rl~ tn"": '/' r
"
4. To pay Utilities a water Connection (plant capacity) ~harge at a rate of
!.:!!. per gallon, total $96.576.00 based on the agreed upon and stipulated flow
rate of 112,300 gallons per day.
b. To pay a Guaranteed Revenue Charge in the am:Junt of S:3.10 per unit per mon-
for those units, of -'the intended 416 Units of the project, not connected to tl
system beginning twelve (12) months fzom the execution date of this Agreement,
until each unit is-connected an~.utilizing the rese~e facilities.
Payments fc
these items will be made upon submission of appropriate invo~ce by Utilities
following the execution of the Agreement by the Developer.
s. Developer recogniz.es that the above charges are based on the act.ual connection
=ates approved by the City of Sebast~an and agrees that if these rates change before all
~e units are connected, to pay the r.ate approved by the City of Sebastian as the additic
units connect.
6. The water connection charges contained in the Agreement are based upon the
' -._.~..... - .
'!:stimated gallons of usage to be supplied to Developer and Utilities reserves the right t,
revise such figures to conform to the actual usage, which may be computed at any time by
lveraging the prior three ()) month period during any calendar year, during the life of
.
this Agreement. Developer agrees to pay any additional wat~r connection charges which
',',
would be required by applyinq the rates contained in this Agreement to any recomput~d
;al10ns of usage.
7. Utilities is not obligated to provide plant capacity or service in excess of
the amounts estimated to be suppl.ied in this Agreement. All charges have been ba.sed upon
estimated usage and Utilities may require Developer to curtail use which exceed such
es~imated requirements.
8. All rates and charqes made by Utilities to Developer. and to future customers
whQ will be serviced by Utilities, shall be made in accordance with the tarif~ filed by
Utilities with the City of Sebastian in accordance with such tariff, as amended, as may
be from time 1:0 time adopted and approved by the City of Sebastian, in accordance with
its requlatory authority contained in applicable statutes, ordinances, rules and req"latio
9. To notily Utilities in writing not less than sixty (60) days prior to estimated
date of completion of construction of facilities requiring water service, the d.......,. 0... wt:..:;
Developer will require initial connection to wa~er mains.
.PT&4~1^ ^Tq~uos~a~un aq ~ou Ttvqs ~uasuo~ 4~14~ Isa!~TT!~n
}O ~uasuo~ ua~~T~M ~o~~d 94~ ~no~1^ p&u6Tss~ .q ~ou TtPqs ~uaw.a~6V Sl~ _~
'S_T:j.,;rpd
a~ )0 ~eq~T. }O ssa,;rpp~ ~ou~ ~S~t 84~ ~p IUT.~.4 S8T~~1Pd aAT~~.ds.,;r .~ o~ lpa:!.sanbaa
~dTa~aH U%n~aH ITTVW pa!}T~~a~ S8:;V:j.S pa:j.Tun hq :j.U8S uaq~ ua^T6 hT~ado~d pewaap aq
rreqs :;u8Wilia.:%5y 5T~ ;0 suua::, e~ 0:1. :j.uvnS.1:nd uaATIi 8C[ 0:1. pa.%Tnb8J: a~T~-ou ^UV _(
'O:j.a~a~ sa!:j..1:~ .^T*~.dsa.1: .~ 10 saAl:j.p~uasaAd..%
Twbat pUP 5u5TSB. Is.%ossa~~ns .~ uodn DUTPurC[ aq 11-q5 :;uewaa.:-6~ sT4~ -z
'loa.%a~ uOT~~TPsT,;rn~ DUTAPq ^~ua6~ .%aq~o ~o )ipoq PTps Aq laW!::, 0:; aWT:;
wo.:-~ 1~~1T':-~S9.:-d aq AVW qoTq~ 5a:;..:- pue S:j.unowe .6vuotr~6 ur .sva.%~ap AO asea,:-~uT 4~S hq
punc~ ~~ 0:; ae.:-6e saT~.%~d aq~ '~ui IsaT:j.TTT:l.O :;uawdOTaAaa 1..%aua~ }O uOT:j.~TPsTzn~ 6UT^~
sar~u.6e puw s:j.ua~.dap 6uTpnT~uT 'T.~01 ,;ro '8:;&:;5 It1P.:-_pa; 'hPoq TR~U.WU':-aA06 hlle
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;0 'sa:..t.nos &rqrssod .J.:aq~o ^U~ pup suop:~..uU(X:I SSOJ:~ ..'to; )(o.q~ CT.l eu:rr~ ...tue ~1' 5a1:1.1T'f::>V;
S..J.:adora^aa a~ :I.::l&sdUT o~ ~qDT~ a~ ah~ rtv~s saT:;T1'f~n .se~'ftT*n AG paT]10ad~
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uodn .:j.uaW8~.:j.s 4:)ns ul ~.1:0' ~as se 8rqe^~ pUlP anp swns TTe Isa1~1tT*n hq pa.tapua.:- s~
~uama*v:l.s .ta:;J'IP s...tvp {OZ} A~Ua~:I. uTq~TM aOl^.Ias ^Tq~uow a~ .to; s.T*T!T~n A~d ~ ..t1
.:l.uawaa~6v sTq~ hq pa~a^o=
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W8:1.SAS A~lTl~n .t81.f:j.0 .%01 .; S81:1.111*0 10 ~.ted aq~ uo ;cu:at{:; a~u1!'~da::loe atn. .%0 I s.J.:awo~sn::
.7;~~O ~o .:zadOtaAaa Aer apew 8q o~ SUOr~nqr.t~uo~ ;0 slseq .%0 :j.unOW'l' 84::j o~ se ~o\1ap8~a.td i
DUTlt'Slyqv::jsa Sli" pan"~s'u~~ aq "JOU TTt?tls ~unuloa~6v sTQ:j 10 sUOTS1'^03d aq"J ~t>lt'~ 'OT
11...., ..-: ~,...L
.~lflIl.:,~"
.,1~'
of Sebastian and that should svch approval not be give.., ~he parties shall be
elieved of all obligations under this Agre,~.en:.
6. Te~nlna=ion of this Agreement by either party shall be upon application to
nd approval by. the appropriate governmental autho~i'ty,'
N WITNESS WHEREOF, the parties have caused these presen=s to be execu=ed on the day a.
ear first above written.
j~II~RAL. O~VELOPMEN, T ~.TILIT.I.ES, INC, - SEBASTI~ ~S ASSOCIATES
A'~I~EST.-
~ it J
that Pert or the ~orth '' ' - '""'~ (State
512}, L~S right of wa~ as recomded fa Official Records ~ook 225, ~ 186
t~e .~ublic records of Indiau River Co~, ~iori~a. ·
EXHIBIT
~:!!"
.Il;";r~ ".: '1 JlB1 -~~r-. -'....
"
, ,
THIS .\CW,l::ENENT, by a.nd between SEBASTlAN LAKES ASSOCIATES I hereinafter referre
~o as "Oeveloper" I SEBASTIAN LAKES UTILITY COHPANY I hereinafter referred to a
"Assignee", and GENERAL DEVELOP~jENT UTrLrTIES. rNC,. a Florida Corporation
hereinafter referred to as "Utilities'..
w'HEREAS. Developer desires to assign that. certain Agreement (the "Agreement"
':xecuted by Developer a.nd Utilities on No;';ember 14. 1984, to Assignee; and
iofHEREAS, Utilities has been requested to consent to the assignment of th.
Agreement to Assignee and to continue to serVe consumers within the area owner
and developed by Developer and covered by the Agreementi and .
''ow THEREFORE, FOR AND rN CONSrDERATrON OF THE MUTUAL COVENANTS EXCHANGED ZY AN!
AMONG THE PARTrES HERETO, THE PARTrES AGREE AS FOLLOWS:
~. Developer) for and in consideration of the sum of S10.00 and other valuablE
.:onsiderations, receipt of which is hereby acknowledged, has granted, bargained
~old, assigned and transferred and by these presents does grant. bargain, sell,
~ssign, transfer and set over unto Assignee, the Agreement, a copy of which i!
\ttached as Exhibit "1".
2, As~lgnee hereby Agrees to aSSURlC all obligations and be fully responsiblt
for all actions which were required of Develope~ under the Agreement &ttachec
3.S Exhibit "1".
J. Utilities hereby 90nsents to th~ Assignment of the Agreement soleI,.. upon th~
=ondition that Assignee agrees to be fully liable and responsible for all actions
~equired of and all representations made by the Developer under the terms or the
Agreement, a.ttached as Exhibi t "1".
.J. All other terms and conditions of the Agreement shall remain in full force
.J,nd effect.
IN wrTNESS WHEREOF, WE IlA\'E HEREUNTO SET OUR HANDS AND SEALS ON TilE DATE DELO;;
,iRITTEN:
:EBASl'Il\N IM<ES ASSOCI.''''''''
,,;:y~
dY: / ' BY:
= E. OLSON e r) !IS v:rCE PRESIDENr
;KRBbST. PAllL. l'I'S Ml\NllGm; GENERAL WAmE E.
:irTNESS: WrTNESS:
SEllJlSTIl>.N !AIa!:S UTILITY ClM>ANY
~
:HTNESS:
<':.f.;.lv, u,hJJ.:r
./'t /1-7 I Y-7
wrTNESS:
:zr
JATE:
DATE:
1Jy/
~
1"\/l.,.C'.
- ., '''''<>
!
Exhibit D
The Onsite Wastewater System shall be those facilities shown
on the drawing entitled "Sanitary Sewer and Water Distribution
System As-Builts" prepared by Caufield & Wheeler, Inc. under Job
Number 2348, dated 11-12-93 and bearing a final revision date of
FTl\HAlLB\Sl4-40.3\Ol/18/94
, .'
Exhibit E
Certification
I hereby certify that the attached Sanitary Sewer and Water
Distribution System As-Buil ts of the hereon delineated property are
true and correct to the best of my knowledge and belief as surveyed
under my direction on , 1994.
David P. Lindley, P.L.S.
Registered Land Surveyor #505
State of Florida
FTL\HALLS\514040.3\Ol/18/94
. ..
. .
Exhibit F
Package Plant
FTL\HAlLB\Sl440.3\Ol/18/94
Tra~t ,,~,,, "SEBASTIAN LAKEs UNZT 1" according to the plat
thereo~, as reoorded ~n P~at Soo~ i~, Pages 11 and Z1A of th,
Fublic ~e~ords o~ Indian River County, ~Iorlda.
A ~om~lete automa~l~ unde=gro~nd ~Um~ln~.S·tatio~ ~ith
required e~Ul~men~ installed in a,concrete~et well, and c¢,ncr'e~e
valve vaul~, ?he Prinoip~i itenm of e~iPment inc'l~de two
submersib'Ze'm°~°r'driven, non-clog s~wage pumps; ~lping,
cOn~ro! panel with c~rcuit break.z:s a¢'~°r'~F·[~s' and ail -.-
~acllity is '~e~it~ed as 0.060 ~G;~ design capacity
s~abiltzatioa..wa.s2ewater 2reatment ~ac:]~2y ~th surge
and dua~ s~d ~Zters. The disinfected reclaimea'Wa2er
- via two; (2) -e ....
P rcoza=ioa ponds .
+/ ,~quare ~eet to2a/ area with ;l,desiga Ca~ac~. ......
- P¢inc!~al',,lte~ o~ ~he ~°nc~e~e-moduZar trea~
include a $~eei s~li.22er.~bo.
gency, ove , nuall c
...... ~~ea area ~ tenanc~. ~wO (2)
Of 38,0C0 +/. S.~. are Provided
effluent d~s~csal, One remo~e equ$pmeo= building, as well.
wa~er and eZec2ricaZ serv$ce are InclUded within the plant
Exhibit G
Contracts of SLUC
FTL\HA1.l.B\51440.3\Ol/18/94
.3. ~e ~oX~tng ~m~tnt~to~ ~ cE~e. ece
reserved ~e~
~, ~~ ~ ......... _
~Lae ~ve~q~ --- ....
chi:gas on
4
~
-i-am
O.R. 794
~eA~ec mamll mmm~ga ~ ~epta~e, A~mo,
~e~. oo~aina _ f~ lu~ ~oaczae~o
mg~, ~ome~, ela~, 8ui~m, aebcs
O. II. 794 Pg 28,37
le~m~ of a~ep~e~e ~oz ~e~. d~Rr~oa i~d l~a e
794 P8 2838
O.R. 794 PG 2839
ou~st~ a d~icm~ eame~ m~ea, mo long ~ ~e ~ill~iem do
&mprov~n~l ~zuc~od, inm~alXed o~. p~an~ within
~_~_.~t~, mpp~op~i~e V~~il mgo~ aPPgMXi hive
794 PO 2840
&nWll~e~t~m ef · oenaUfbl,~ A~dkal%m~t~# gen~eiten
a2 ~ ~iven ~ ~ p1~% or ~o~r and
nspm~tion ~i ~_~e ~aln ~n~-~mu~ (24)
bol~ayi, pzovtd~ ~he wl~g M~er a~ b~flav
p:m~ncez ~ave hmn P~e~Oull~ ~ealled.
installation ~num~ioa ~hia ~oc~eight C4a)
12.
:mqmi~e ~be P~mXoper, him m~c~eimors, ~eA~t o~
o~dmr ~0 ~tl~om~m p#tj~m~ iJ~mfa~loa ef
:~?mm..caaC %~ ei~ ~C il~t~ sa~ e~zm%
CBo~I~ ~mt ~Zx c~e hmzm ~g ~
~zoce~. ~ ndaicion. ~l&o~z ~che~
~pe~'s mmnit~ s~
~d~a~ v~mm, gz~me o~ mAlL
794 PI a642
· ...~;. ~'"~7.:~:~~ ~.~:_~'~..-
pcov~d~ng ~tble wm~er o~ m~mt le~=em. ~o ~,
m~en~. ~ec, ~o~w&c~m~a~%ng a~,
~ma%, &~m mu~emmorm ~ amligas, ~y
O,R. 794 PO 2843
Ru~Idinq 1, ~ul~ A
The ~ghts,
0.~. 794 P6 Z845
n~ O~ ~i 0{.' 'Ae l~ ~0~ ~Og ~%~801 ~
~%l ~r~nc,'~rvi~e ~lay ~y ~ r~uL~
~zzgenc~y a~ eamem~, I~ ~elope~'s io2e
~n oJta%a~ ~e w~ova~ ~o~id~ tOt
scuts of
O, IL 7~ PS e845
~ri a~t ~ u ~LabL~L~F vha~eeeve~ e~
alX mon~# 90~ ~or ~ ~M ~ on
17
O. iL 794, PO ~847
!
O. It. 794 PG 284'8
O.L 794 PO ~-84~
iX,OOO.oC J~?~.oO0.O0
O.a. 784 Pa ~.85o i '
i
O.R. 794 PG 285~.
Z?IM z=
~ a.~rv~ce~ Ccnpn~F_ tmpoeel I'~,aCOwding (:~f'~ge equ%l to
O,P. 794 PS 2853
.
.~ .,
'.:~~~M;i:..'
:. ."...." '::", :,;\;" ':'.~:
....; :~~~.:,'.':'.,
'~ :~,'. ','"" . -.'
"
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.:. ~:':~.r:i1.~':l:
. " ::.~:t~~:.1'
.\. ~;;t:i'~'~
~.:': c'.'SIOA': 'J::.
:: ':.'t',1t ." ~.'
: :~'-:!~~..~:
.:i. '~~'.~ f
.,:.~
j"
'[
<'''. 'II ~:-'1.
.. i:oilI_ . '
:~. t~~7 i ,', .~
- ".~.... ... \~
.. ~.~.,~ ...
:, ~:.~'.~;
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~7.,..... ,.....-...J.-.....,-. i
I
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IXUI~:'%' -z-
U. 794 PI
2855
Exhibit H
Customer List
c/o Sebastian Lakes Condominium Association
1101 Fellsmere Road
Sebastian, Florida 32958
c/o Sebastian Lakes Condominium Association
1101 Fellsmere Road
Sebastian, Florida 32958
c/o Sebastian Lakes Condominium Association
1101 Fellsmere Road
Sebastian, Florida 32958
c/o SebaStian· Lakes Condominium Association
1101 Fellsmere Road
Sebastian, Florida 32958
c/o Sebastian Lakes Condominium Association
1101 Fellsmere Road
Sebastian, Florida 32958
c/o Sebastian Lakes Condominium Association
1101 Fellsmere Road ·
Sebastian, Florida 32958
c/o Sebastian Lakes Condominium Association
1101 Fellsmere Road
Sebastian, Florida 32958
c/o Sebastian Lakes Condominium Association
1101 Fellsmere Road
Sebastian, Florida 32958
c/o Sebastian Lakes Master Association
c/o The Chase Manhattan Bank
101 Park Avenue, 15th Floor
New York, New York 10178
Library
c/o Indian River County Board of Commissioners
1840 25th Street
Veto Beach, Florida 32960
Attn.: Lynn Williams
, ,
Exhibit I
Franchise Ordinance
FTL \HAU.S\51440.3\01/18/94
APPENDIX A-FI~CHISES
ARTICLE VIII. SEBASTIAN LAKES UTILITY COMPANY-WATER AND SEWER*
ORDINANCE NO.
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SEBASTIAN, FLORIDA.
GRANTING AN EXCLUSIVE FRANCHISE TO SEBASTIAN LAKES UTILITY COMPANY,
A FLORIDA CORPORATION, TO
S'Y~TEM AND OPEl?ATE AND MAINTAIN' A WATER DISTRIBUTION'
SEWAGE COLLECTION SYSTEM WITHIN A PORTION OF THE CITY OF
SEBASTIAN, FLORIDA; SETTING FORTH CONDITIONS AND PRIVILEGES ACCOMPA. '
NYING THE GRANT OF FRANCHISE; PROVIDING iTOR RATES AND CHARGES, AND
FOR SERVICE STANDARDS.
WHE~, the City of Sebastian ~ it in the public interest to ensure that Sebast/an
Lakes Utility Company adequa~ly provide k/gh-qual/ty water and sewer (wastowator) set-
WHEREAS, the City of Sebastian finds it/n the public interest to reta/n regu~tory
author/ty over the water and sewer util/t/es, to the extent allowed by law, because of the
over-r/din~, publ/c hea~th, safety and welfare, conside~at/ons assoc/a~~ ~ provision of
this serv/co;
WKEREAS, the City of Sebast/an finds it in the public/nterest to reta/n control over the
use of public r/ght.~o£.way by water and sewer utfl/t/es to ensure a~inst/nterferenca w/th the
pub//c conven/ence, to promote aesthet/c conaiderat/ons, to promote phumed and eff'~ient use
of 1/m/ted righi:-of, way space, and to protec~ the public investment in r/~ht~of-way property;,
WHEILEAS, the City of Sebast/an finds it in the public interest to erasure that Mgh quality
wat~. and sewer service/s main~ed through a responaive compl/an~, procedure;
WHEi~EAS, Grantor/s des/rous of having made ava/lable to it~ citizens, in return for
valuable cona/dera~/on, certain water and sewerage facet/es of ~tffic/ent size and capacity to
serve its citizens a~ reasonable ra~s, an~ constructed in such a ~,--~ so tha~ at such time
· aid revenue bonds;, ' ,~ -,~Q wm proauce revenue~ capable of retiring
WHEP~_~,S, Grantoe has indicated to Grantor that it is wilI/ng ~o undertake the insa~l.
la,/on and operat/on of ~ch f~ ~der a f~e from G~to~ ~d
~~, ~e pm~ion of such ~r ~d sewe~ f~ is in ~he b~ ~ms~ of
the he~th, ~M~ ~d s~e~ of G~r's ~e~;
Now, ~emfom, BE IT O~~D by the Ci~ Coun~ of ~eb~ti~, ~o~ ~ foflows:
*E~tor's note--~ he~ ~ ~e wa~r ~d ~er f~e adop~ Sept. ~1, ~985,
by O~. No. O-85-16. ~ons ~e for ~ ~e en~os~ ~ b~.
CDA:~t9
Ar~. VIIf, § 101
SEBASTStN CODE
Section 101. Definitions[; Title].
[As used in this article]
"Grantee" shall mean the Sebastian Lakes Utility Company, it~ successors and as-
A,
signs.
B.
"Grantor" shall mean the City of Sebastian, fils successors and assigns.
C. This ordinance shall be known as the Sebastian Lakes Utility Company Water and
Wastewator System ~-anchise.
Section 102. Grant of Authority.
Grantor hereby grants to Grantee the right to const~-uct, [and] maintain lift stations, force
mains, manhol~, sewerage tre_-ement pl..~ ~ other appurten~mces, upon, along, under and
over the roads, easements, ways and streets within the limits of this franchise, aa its business
may from t~ne to time require in accordance with established prac~ce with respect to watar
and sewera~ construction and maintenance for the ptl~:x~ of providing adequate sewerage
collection and.treatment services to Grantor and its suc~eesors and to ~itants with;-
the Limits of the franchise.
Section 103. Lira!fa of the l~anchtse.
All persons, firms or corporations within and limited to the areas described and desig-
natc~l in ~.-hlhit "A" to chi, ordinance are hereby granted the privilege and. right to receive
from the Grant~-e wat~ and sewerage services and all services incidental or necessary with
respect thereto, and the Grantee shall not refuse to provide such sewerage services to. any
person, Cum or corpomiion whomsoever for any reason whatsoever.
Section 104, Duration of
The t~ of this franchise shatt commence with the effective data of this ordinance and
shall continue and remain in full force and effect for the period of twenty (20) years;, provided
l~owever, should the Grantee surrender or abandon the operation and ,--i-tanance thereof, or
fail to comphfoe and put in operation, the s~tem as demand requires, or fail to comply with any
of the provisions hereof, then in either of said eve~ta this franchise shall be forfeited, and the
Grantor shall be entitled to purchase by voluntary agreement~ or t~ke by condemnation or by
power of eminent domain; in accor~--_~ with Section 132 hereof, all property used and useful
in the exercise of this franchise, situat~ within the Limits of this franeh;,e.
Section 105. Grantor Supervisiom
The [a]foresaid constructdon, maintenance and operation of said sewerage facilities, bo~h
as to ~hose portions of the same located with;- the Limits of the franchise, shall be subjec~ to
the approval of Grantor and the plans and specifications for all of such construction shall f'Lrst
be approved by the same before construction is commenced. Grantor or its employees, officers
CDA:50
APPENDIX A-FRANCHISES
A_~. VIIi, § 108
or a~ents shall have the right to inspect the abovementioned sewerage facilities at any rea.
sonable t~ne.
Section 106. Francl~;~e Consideration.
Within thh~ (S0) days after the ~ anniversary date of this grant and within thirty (30)
days after each succeedin~ anniversary date of th~s ~rant, the Grantee, its successors and
assigns sl~ll pay to Grantor or its successors an amount wkich, added to the amount of ail.
rexes, lk~usee, building permi~ and other impoaitions levied or imposed by the Grantor upon
the Grantee's water and sowerase property, huainess or operations for the precedint~ tax year,
collection and txeatment services to re~ential and commercial customers within the lJJ~ts of
this franckise for the twelve (12) months prececl~g the applicable anniversary date.
Section 107.
It is mutually agreed that the Grantee, subject~, the approval of Q,~tor, ha~ the r~t
to mo~, lease, convey, tnumfer or ass~n all of the property wlu'~ 6~ms, including any
and all equipment, pipes or appurtenances utilized in connection with the sewerage collection
system and sowera~ ~ea~ment plant, subject to the following conditions:
That thirty (30] clays' written_ notice of Grantee's intention to do so shall be communicated
to Grantor, to~ether with the or~--I ~i~ned document evidencing said conveyance, lense,
m~, asaigzlment or tranafer which shall ~te the name of the person or persons
or let~ entity to whom said land has been sold, mo~, leased, assit~ned or t,rans-
ferred; and in addition thereto, saki deed, ~ mor~,a~e, t~tst ~ed, assismnent or other.
instrument, shall contain lanStm~ which sha~ indicate to the lessee, mort~gee, a~signee
or t~n-~eree that said conveyance, lease, mo~, assignment or trarmfer
the terms of this franckise and all of the obli~l~ons and duties contained herein; ~ that
said lessee, ~ assisnee or Uaz~%ree shall, by accepting a conveyance, lease,
mortg~e, assi~nme~ or transfer of the same, a~ree to a~sume the obligations of
fl'anchiee a~ par~ of the considera~n therefor.
Section 108. "A~ Ihzilt" ~
Upon the completion of all cons12'uction or,he wa~r and wastewater ~eatment plants and
cl~tr~bution and collection systems, the project en~ineer for the utility shall certify, under seal,
that the system has been constmct~ substantially in accordance with the plans and specifi-
ca~-ions previously approved and that the syster~ mee~ all of the standards required by the
city. The certification shall include submi-~ion to the city of ~wo (2) sets o£ "as built" (as
de6xied by the city) drawings, consisting of one (1) so~ in reproducible vellums and one set of
regular blueline prints; and tha~ the systems meet all of the standards required by the city,
including pressure and leakage testa, chlorination and bacteriological tests, infiltration and
exfiltration tests.
CDA:51
Ar~. VIII. § 109
SEBASTIAN CODE
Sectior, 109. Rate Adjustme,,t.
It ia recognized by the parties tha~ the rate charl~i by Grantee for the disp0e~l of Grant..
or's sewage and the providing of water under this a~'eement represents recovery of variable
costs and ~ costs, as well as amortization of return on Grantee's investment in the respec-
tive systems. Over the term of this a~-eement, it is reco~--ed that variable costs may fluc.
tuate~ -
Wi~ the possibility of this fluctuation in mind, the parties a~ree that at the end of any
~ree (3) year term hereo~; either party may, upon the advice of its consulting engineer, request
a rate revision for the next ensui~ three (3) year term, te reflect chan~es in variable costs.
Such variable costs shall include energy, water, chemicals and labor used in the normal
operation ot' the sy~tem~. The consulting engineers of each of the parties shall meet and
determine whether a rate adjustment ia justified after reviewing all such costa.
In the event the engineers cannot agree on a rate ac~nstment, they shall, by agreement,
appoint a disinterested en~.eer who shall review the cost figures and shall determine whether
a rate ad~nstmenc ia justified, and if so in what amount. Such determination shall be binding
upon the parties. However, in no event shall it rate a~ustment for any~t~t'ee (3) year term
exceed ~venty percent (20%) of existing.rates. Rate increases are subjec~ to the approval o£the
city council after pubUc hearing thereo~.
Section 110. Sy~ems Coat Data.
As construction of said facilities progresses and when the construction ia completed, Grantee
shall furnish the Grantor annually within thirty (30) d, ay~ afl. er the anniversary date of ~
~'ant, proof of the costs and expenses of such construction. If Grantor seeks te purchase the
.,~ aa m a reaaoname purcaase price but shall be evidence thereof.
.Section 111. Plmmc~ Reports.
tio-'o' ....... _,~ .-~.. ur r, ae preeeaing year, including customer accounts or~.
mom. rantor te de mi me
~ty of the facilities, the reasonableness of its ra~, and the advisability at' Grantor
purchasing the facilities, and for other law/hi purposes.
Section IlIL Right to lmurehase.
Granter shall have a right to purchase the facilities of Grantee at any time during the life
or' thia franchise.
Section 113,
The Grantee shall restore all streets, alleys, sidewalks, highways, easements, bridges, and
other public places to their or/ginal condition after excavation or other disturbance by Grantee.
CDA:52
APPENDIX A-FRAnCHISES
A~. VIII, § 118
In c~e any obstruct/on caused by Grantee shall remain lon~er than three (3) days after notice
to remove same, or in case of neglect of the Grantee to protect dangerous pIaces by proper
guards, the Grantor may remove the obst~on or alleviate the danger and charge the
Grantee for cost incurred thereby.
Section 114. Subord/na//on Prov/sion.
The construction, maintenance and operation of the said facilities shall be subject to all of.
the ordinances of the Grantor rela~g to construction and zoning,
Section 115. Indemn/ty.
The Grantor shall in no way be liable or responsible/'or any accident or damage that, may
occur in the construction, operation or maintenance by the Grantee of the systems hereunder,
and the acceptance ofehi~ ordinance shall be deemed an a~reement on the part of the Grantee
to indemnify the Grantor and hold it harmless a~ins~ any and all liabfl/ty, loss, cost~ damage
or expense, which may. accrue to the Granter by reason of the neglect, default[,] misconduct or
strict liability of the Grantee in the. construction, Ol~eration, or mainte~ahce of its facilities
hereunder.
Section 116o Severabfl/ty,
If any par~ [court] of competent jurisdic~n shall determine that any prov/aion hereof is
invalid, illegal, unenforceable, or otheewise prohibited, or ff any federal or state governmental
aKency shall estab~ or interpret any law, rule or re~tlation by which any provision hereof
becomes invalid, ~ unenforceable or otherwise prohibited, such portion shall be deemed
a separate, d/.stinc~ and independent provision and such hol~-i' shall not affect the validity of
the rem~ir,~.g portior,~ hereof; except tha~ the Grantor may declare this franchise t~'minat~
if it fftnds the/rival/elated provision to be an essential part of this franchise.
Section 117. Service Standards.
Grantee will ma/nta/n and operate all of sa/d fac/liMes in ~ working order in accor-
dance with establ/shed en~neer~g practices and reconunendat/ons a~ all times, and will, at
its cost, make such additions and improvements to its. plants and facilities as are necessary to
provide adequate service to all of the area covered by this franchise. The provision is subject
to all 'other provisions of this franchise per~in~g to the construction o£ facilities.
Section 118. Construction Schedule.
Gran~e shall proceed expec~t/onsly to construct such par~ of the p~t and ~te~ ~
sh~ be n~ ~ se~ ~ ~d w~~r dem~ M ~he ~ea ~ver~ by t~ fr~-
~ ~ n~, ~d ~ ~~ ~ p~ ~d o~er f~fies ~ a s~den= ~pad~ ~
h~dle the ~men~ of ~e then u~ s~ dem~ ~ the ~ ~ver~ by ~
Ai~ ~, § 118
SEBASTIAN CODE
All of the facilities to be owned and operated by Grantee shall be planned and designed by
professional engineers of the SImle of Florida. The contract; or contracts for the construcldon of
ali facilities shall be awarded by Grantee to reputable contractor or contractors. The Grantee
shall have the right to examine and concur in the design of all facilities, but concurrence shall
not be arbitrarily or unreasonably withheld. Failure by Grantor to advise the Grante~ 'in
writing of i~s non-concurrence in the design of any facilities and to assign in writing Grantor's
specific reason or reasons for such non-concurrence within tsn (10) days after Grantee has
submittal to Grantor such design shall be deemed a concurrence by Grantor. in such design.
Section 119. Capacity to Serve.
Grantee will, aC its own expense, provide the necessary capacity to service the area.
Section 120. Rates.
Tho rates and charges for use of said facilities by the Grantor, and its successors, and the
inhabitants, property owners and corporations within the ;;m~ts o£ this fr/mchise, shall at all
times be ~aonable ami subject to such ~gnlations aa may be provided by' law. The initial
water and wastewater rat~ shall be as se~ forth in Ex. bit "B"
Section 121. Public Nuisance Prohibited.
Said sy~ams ~ not be constructed, maintained and operated so aa to cause pollution of
any kind to the ~, wetlands or groundwater aquifers within the 1/mits of--the fran-
chise area and said facilities shall.not emit dust, dirt, smoke, noise, odor, fumes, or vibrations
in quantities and constitute a public or private nuisance or substances which possess an
abnormal explosion hazard.
Grantee shall landscape the plants to be erected by it so as to screen the facih'ty from view
in an attractive manner and.,kail mainteiu the same in an attractive manner at all ~imes.
Section L~ Rule
The Grantee may issue t~m time to time necessary rules and regulations relating to the
maintenance and operation of its facilities and relating to the time, m---er and place of
c~llection of its authorized charges and ratm, and the Grantor will further assist therein by
enacting such ordinanc~ as shall reasonably be necessary and in the public interest in order
to aid and assia~ the Grmmtee in collecting it~ authorized charges and rates and prevent
tamperingwith, ~juring or desiwoying the Grantee's property or interference in any way with
the operation of the Grant~.
Section 123, Complaint~
Ali complaints shall be resolved by Grantee within ~wenty-four (24) hours. Grantee shall,
upon reques~ by Grantor, supply Grantor with copies of ali complaints and indicate the dis-
posit, ion of each. Such records shall be av~il-~,le ~o inspec~on by Grantor a~ all times during
busines~ hours specified herein The form shall indicate the day and hour on which the
CDA~54
APPENDE~ A-FI{A/~CHISES
Art. VIII,
complaint was received and the day and hour on which it was resolved. When a complaint is
received on the day precedi~ a holiday or on a Saturday, it shall be serviced on the next
working day. The Grantee shnll establish procedures to insure that all cnstomers are notified
as to the complaint procedure.
Section 1~4. l~onitoring Performance and Compliance.
In order to fully implement the provisions of thi~ fi-anchise, a panel for ~-he review of the
quality o£ services provided for in this contrac~ shall be created, to consist o£ three (3) members,.
one (1) member representing the Grantor, one (1) member representing the Grantee, and third
independent member chosen by the previously named two (2) members. It shall be the function
of this committee to review, repol~c and make recommendatioi:~s to the Grantor regarding the
quality of services provided for here/m For the purpose of ~is fimction, "service" shall be
defined as the performance of the duties, tasks and obligations of the Grantee enumerated
herein and the perfor~-nce of such other duties, tasks and obligations as are generally and
reasonably regarded as incident to the safe and satisfactory discharge of responsibilities in the
water and sewer industry. .
Section 125. Termination of Service.
Grantee shall have the right to discontinue service to any consumer who is found to have
violated any val/d rule and regulation prescribed by Gran~,e under this franchise and ap-
proved by the Grantor or who shall fail to pay, within sixty (60) days after the same comes due,
any charges legally made by the Grantee for services supplied. Grantee shall not be .obligated
to renew service after such discontinuance, unlesa and until the customer shall have reim-
bursed Grant~ for its expense incurred in the discontinuance and renewal of service.
A consumer whose service has been discontinued at one residence, or place of business,
will not have the right to require service to be renewed at another residence or place o£
business until all dem..F,, of the Grantee for Iegitimat~ charges and expenses against said
In consideration of the rights and privileges herein granted, Grantee shall install Frae
hydrants along the wa~r,-,,~-s located w/e~;, the geographical lira/ts of the Sebastian Lakes
Subdivision at locations as will mee~ the standards ~pecified by city ordinances.
Section 127. Taxes.
If, during the life of this franchise, or an)- extension thereof, Grantor shall elect to levy a
tax upon the chax~ made by Grantee to its customers for the sale of water or sewerage
wastewater, Grantee shall coliec~ the amount of such t~x from its customers for use and benefit
of Grantor at the ~me ofcollec~gthe price charged for the sale ofwa~er. AIl such taxes levied
and collected during the preceding month shall be reported and paid over on or before the
'. CDA:~5
A~. VlTI, § 127
SEBASTL~ CODE
f//teenth (l§th) day of each calendar month to Grantor less any adminlstrat/ve costs, al~%-d to
by Grantor from time to t/me, incurred by Grantee in the collection of such ~
Section 128, Renewal and Replacement Account.
Two and on,half percent (2V:%) of the ~oss receipts of the utility shall be placed in an
interest bearing renewal and replacement account for purposes of renewal and/or replacement
of the capital assets of the water and/or wastewa~ ~ of the utility. Additionally, the
utility shall initially fund said account with two thousand dollars ($2,000.00) which will also
be refereed for capital mn~n{enance items. Interest shall accumulate in said account until the
account reaches ~wentF. flve thousand dollars ($25,000.00); therealter interest shall be paid to
the utility annually. Said funds shall be used as sinking fund and applied only for renewal
and/or replacement of the water and/or was~ewater system by the utility as the need arises; the
percentage required to be placed in the renewal and replacement account may be amended
after review by the c/ty/ts necessa~, to maintain a su/Hcient account; balance fairing into
accoun~ the general condition of the system. The city is/~-anted the right to make necessary
repairs using said funds in the event o£default on the l~art of the ut/lity, il~lllaintainlng proper
quality standards.
Section 129. Contractual Agreement.
It is specifically agreed by and between the parties hereto that ~ franckkse shall be
considered a franchise a~m~nt between the utility and the city and as such contractual
instr-ment reco?i--ed under the statutes and laws of the State of Florida. This franchise
agreement is not intended to creat~e rights or actions running in favor of th/rd parties, except
as h~rein ~:ifi~y provided.
Section 130. Default of Franchise.
If the utility fails or refuses to premptly faithfully keep,'perform and abide by each and ali
Of the terms and conditions of this. franchise, then council shall/ire the utility written notice
of such deficiencies or defaults 'and reasonable time within which the utility shall remedy the
same, which not/ce shall spedfy the deficiency or default. Ii' the utility fails to remedy such
deficiency or, default within a reasonable time, the council may thereafter schedule a hearing
concerning the same with reasonable not/ce thereof to the utility, and after such hearing, at
which ali interested parties shall be heard, the council may levy liquidated damages of up to
/'U%y dollars/$50.00} per day that said deficiency or default exists/'rom the dam of said hearing
held by the council and the council may further limit or restric~ tats franchise or franchise
territory or may terminate and cancel the same in whole or in par~ if prcper reason thereby are
round by the council. If the council ent~s an order pursuant t~ such hearing and the utili~y
feels aggrieved by any such order, the utility may seek review of the council's action by t-fling
a petit/on/'or wri~ of cert/orari in the drazit court of the county.
CD.~56 '
APPENDIX A-FRANCHISES
Section I31. Execution of Franchise. [~eparabil/ty.]
If any word, section, clause or pa~ of this ordinance is hold invalid, such portion shall be
deemed a separate and independent part and the same shall nos invai/date the remainder.
Section 132. [Acquisition by City,]
Within a reaso--~le time after the city has notified the utility of its intent to terminate
the franchise and to acquire the system, the franchise holder shall convey all of its facilities
together with all easements to the city. Said conveyance by the utility shall be without
encumbrance. At ~l~i~ time the franchise holder shall convey unencumbered all o£ its facilities
together with all easements, to the city, without charge as to all property contributed ~o the
u~ity;, provided further, however, that the city shall have the right to purcha~ the remaining
assets of the utility based on tho average of the net or/ignal cost and a price as computed and
at,reed upon by three (3) competent and qualified appraisers. The city shall select an appraiser,
the utility shall select an appraiser, and these two (2) appraisers shall mutually ~ upon
and eele~ a third independent appraiser and these'~u~e (3) appraisera'-shall arrive at the
value o£ the utility and tho sales price involved. However, tho dry shall not be required to
purchase and no value will be placed on additions or ~ons to the system which were paid
for as coni~butions-in, aid-of, co~n by any person, firm or corporation other than the
utility. The city shall not by condemnation or otherwise be required to pay to the utility any
amount for goodwill or prospeciive profit, or other intaniible, and the appraised value shall be
based entirely upon physical assets only;, and provided further that in the event said board of
appraisers cannot agree as to the price to be paid by the city, then the city may File appropriate
condemnation proceedings under Florida law.
LEGAL DESCPJFI'ION
PROJECT LOCA~ON 'A'
A/i that part: of the Southeast ~ or'Section 14, Township 31 South, Range 38 East, lying south
of the Fellsmere~ebastian Road (County Road 512) and also that part of the North ~/= of ~e
~ortheast V~ of Section 23, Township 31 South, Range 38 East, lying south of the Fellsmere-
Sebastian Road (County Road 5L2), lees the r/ght-of, way as recorded in 0.1~ Book 225, Page.
186, o£ the publ/c records or' Indian R/vet County, Flor/da. Said parcel of land being more
particulari¥ described as follows:
From the Northea~c corner o£Section 23, Townsh/p 31 south, Range 38 East, run N 001'I24'26"
E, along the Section 1/ne for a d/sr. ance of 1,398.i9 feet to the Point of Beg/nnmg for the herein
described parcel of land;
-. CDA:57
SEBASTIAi~ CODE
Thence, run S 37m43'45- W, along the southerly right-of, way Line of the Fellsmere.
Sebastian Road (County Road 512),/'or a d/stance of 3,460.96 feet;
Thence, run N $9l'144'§0- E, for a d/stance of 2,139.12 feet;
Thence, run N 00/'129'14~ W, alongthe Eastern Sect/on line of Seclion 23, Township 31 South,
Range 38 Eas% a distance o£ 1,329.77 feet, ~o the northeast corner of Section 23, Township 31
South, Range 38 East;
Thence, run N 001'~24'26- E, a distence of 1,389.19 feet ~ ~he Point of Beginning for the above
described parcel of land.
Subjec~ ~o a 15-foot, wide easement for electrical purposes records in O.R. Bock I~26, Pa~e 20,
public records of Indian River County, Florida.
Said parcel of land contains 66.951 acres of land and lies wholly within iud/an River County,
Florida.
SEIL~STiAN LAKES UTILITIES WATER AND SEWER ~SE ' .
Res~e~T [f~ ~~ ~ b~ on ~~ of up ~ 7,500 ~o~ permon~).
Sewer - p~ ~p~ F~ - $1,000.00~iden~ U~t
Usage Rate
L~sa~e Rate (variable)
- Usage Rate fixed).
-- $12.00/month (first 3,000 8allons)
- $1.40/1,000 ~llons (3,000 ~o 7,500 8allons)
- $9.00/mon~h (first 3,000 Ballons)
r. rsa~e Rate (variable) -- $1.60/1,000 t~llons (ali over 3,000 gallons)
Commerc~ Size~ (Residenti. i equivalent unit-250 CPD).
Sewer -- Plant Impac~ Fee -- $I,000.00/Resident~l Equivalen~ Unit*
Usa~' Rat~ (fixed) -- $50.00/month (first 9,000 gallons)
Usage Ram (variable) - $1.40/1,000 i~Jlons (al~ over 9,000 gallons)
Example: Commercial customer usin~ 120,000 iallons per month:
Plus excess - 120,000 leas 9,000 t~llons = $ 50.00
Iii,000 ~allons x
81.40/1,000 ~,allons = 155.40
Total Commerdal B/il $205.40
*To be paid from development company at ~me of sale of incliv/dual un/t.
CDA:58