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HomeMy WebLinkAboutStandard Potable Water & Wastewater Development AgreementPrepared by and Return to St. Lucie County Attn: County Attorney 2300 Virginia Avenue Fort Pierce, FL 34982 SUBJECT TO REVIEW BY COUNTY ATTORNEY STANDARD POTABLE WATER AND WASTEWATER DEVELOPMENT AGREEMENT (SDA) THIS AGREEMENT made and entered into this ,), Z— day of —.iAte-eft&ed% , 2008, by and between St. Lucie County, hereinafter referred. to as "Utility", and OD I, LLC, hereinafter referred to as "Property Owner". WITNESSETH WHEREAS, the Property Owner owns property located in St. Lucie County, Florida, and as more fully described in Exhibit "A", attached hereto and made a part heieof and hereinafter referred to as "Property", whereupon Property Owner has or is about to develop the Property by erecting thereon residential or non-residential improvements and desires to secure the provision of utility service to the Property; and WHEREAS, in the interest of public health and to encourage the use of central water and wastewater facilities, Utility desires to enter into this Agreement; and WHEREAS, Property Owner acknowledges that execution of this Agreement by Utility does not confer nor grant any land use or zoning approvals for the Property, nor does it assure or guarantee Property Owner that Property Owner has or will be able to obtain land use or zoning approvals for or be able to construct on the Property the number of ERC's for which Property Owner has voluntarily elected to reserve utility capacity under this Agreement. , NOW THEREFORE, for and in consideration of these premises, the mutual undertakings and agreements herein contained and assumed, Property Owner and Utility hereby covenant and agree as follows: 1. The foregoing statements are true and correct. 2. The following definitions and references are given for the purpose of interpreting the terms as used in this Agreement and apply unless the context indicates a different meaning: (a) "USP" - the Utility Service Policy for water, wastewater and reclaimed water service by the Utility, as may be amended from time to time, which is incorporated herein by reference; (b) "UEP" — the Utility Extension Policy for water, wastewater and reclaimed water service by Utility, as may be amended from time to time, which is incorporated herein by reference. (c) "UCH'— the Utility Connection Regulations for water, wastewater and reclaimed water service, as may be amended from time to time, which is incorporated herein by reference. (d) "UPAP" — the Utility Extension Policy, Utility Service Policy and other policies and procedures adopted by the St. Lucie County (Utility), as may be amended from time to time, which is incorporated herein by reference. JOSEPH E. SMITH, CLERK OF THE CIRCUIT COURT SAINT LUCIE COUNTY FILE # 3316033 02/27/2009 al 08:35 AM OR BOOK 3064 PAGE 1317 -1327 Doe Type: AG R RECORDING: $95.0o f (e) "Service" - the readiness and ability on the part of Utility to furnish potable water to and to collect wastewater from the Property; (f} "Point of Service" - generally, the point where the pipes or meters of Utility are connected with pipes of the Property Owner as further defined in the UPAP; (g) `Equivalent Residential Connection (ERC)" - a system capacity equivalency unit which corresponds to the peak demand of the single-family residential category of Customer usage. This system capacity equivalency unit is utilized to establish the system demand for various sized connections for the purpose of assessing fees; (h) "Service Initiation" - the date a potable water meter is set or a wastewater connection is made for a customer; (i) "Guaranteed Revenue Fee" or "Guaranteed Revenues" - the mandatory fee paid by all customers designed to recover the carrying costs of system capacity, which has been or is being constructed in anticipation of future service requests. Carrying costs include fixed operating and renewal and replacement expenses necessary to maintain excess system capacity for future use. {j} "Total Accrued Amount (TAA)" - A TAA represents accrued Guaranteed Revenue Fees payable fifty percent (50%) at the time of execution of this Agreement for all ERC's reserved, and payable fifty percent (501/o) for each ERC upon Service Initiation. (k) "Standard Development Renewal Agreement (SDRA)" — an agreement between Utility and the Property Owner extending the capacity reservation for unused ERCs in a Standard Development Agreement for an additional five (5) years. (1) "FPUA Amount (FPGR}" — At the time required by Ft. Pierce Utility Authority (FPUA) pursuant to the terms of the Bulk Service Agreement between FPUA and St Lucie County, a FPGR equal to the then current rate established by FPUA shall be due and payable for each ERC/ERIC agreed to be served by FPUA and an SDA. I Property Owner hereby grants and gives to Utility the exclusive right and privilege to construct, own, maintain, operate and expand the potable water, wastewater and reclaimed water facilities in, under, upon, over and across the present and future streets, roads, easements, reserved utility sites and public places as provided and dedicated to public use in the record plats, or as provided for in agreement, dedications or grants made otherwise and independent of said record plats. Utility covenants that it will use due diligence in ascertaining all easement locations; however, should Utility install any of its facilities outside a dedicated easement area, Property Owner covenants and agrees that Utility will not be required to move or relocate any facilities lying outside a dedicated easement area as long as the facilities do not interfere with the then or'proposed use of the area in which the facilities have been installed. Property Owner hereby further agrees that the foregoing grants include the necessary rights of ingress and egress to any part of the Property which Utility reasonably requests for the maintenance, operation or expansion of the potable water, wastewater and reclaimed water facilities; that in the event Utility is required or desires to install any of its potable water, wastewater and reclaimed facilities in lands within the Property lying outside the streets and easement areas described above, then Property Owner or the successor owner(s), as applicable, shall grant to Utility, without cost or expense to Utility, the necessary easement or easements for such installation; provided, all such installations by Utility shall be made in such a manner as not to interfere with the then primary use of such Property. Property Owner or the successor owner(s), as applicable, shall obtain written approval from Utility prior to installing any 2 r structure or object, including, but not limited to, fences, gates, signs, trees or poles, within an easement area. In consideration of Utility's consent to an encroachment, Property Owner or the successor owner(s), as applicable, shall agree to indemnify and hold Utility harmless from and against all liabilities, damages, penalties, claims costs and expenses, including attorney's fees at all levels, which may be imposed upon or asserted against Utility as a result of or in any way connected to an encroachment approved by Utility., In the event Utility determines that it is necessary to construct, maintain, repair, remove or replace any of its facilities located under, over or upon an easement, Property Owner or the successor owner(s) of the portion of the Property affected shall immediately remove the encroachment from the easement upon the request of Utility at Property Owner's or the successor(s), as applicable, sole cost and expense. If Property Owner or the successor(s), as applicable, fails to remove the encroachment, Utility shall have the right to remove the encroachment from the easement. Property Owner or the successor(s), as applicable, shall pay all costs related to removing the encroachment from the easement incurred by Utility. Property Owner, as further consideration of this Agreement, and in order to effectuate the foregoing grants to Utility, hereby places the following covenant, as a covenant running with the land, upon the Property and thereby subjecting it to a reservation, condition, limitation or restriction in favor of Utility, as follows: Utility, or its successors, has the sole and exclusive right to provide all potable water, wastewater and reclaimed water services to the Property described in Exhibit "A". All occupants of any residence or non-residential improvement erected or located on the Property and all subsequent or future owners or purchasers of the Property, or any portion thereof, shall exclusively receive their potable water and wastewater service from the aforesaid Utility and shall pay for the same and shall abide by the terms and intent of this Agreement, and the UPAP, for as long as the aforesaid Utility provides such services to the Property. Further, all occupants of any residence or non-residential improvement erected or located on the Property and all subsequent or future owners or purchasers of the Property, or any portion thereof, agree, by occupying any premises on the Property or by recording any deed of conveyance with respect to the Property, that they will not construct or otherwise make available or use potable water, wastewater and reclaimed water service from any source other than that provided by Utility. Further, all occupants of any residence or non- residential improvement erected or located on the Property and all subsequent or future owners or purchasers of the Property, or any portion thereof, agree that Utility may require them to purchase and use a volume of reclaimed water equal to the volume of wastewater discharged from the Property on an equivalent average basis as determined by the Utility. Any water well or water source used solely to supplement irrigation water supply for the Property is excluded from this restriction except to the extent the Property is required to utilize reclaimed water equal to the volume of wastewater discharged from the Property. Further, in order to give an additional and supplementary notice to all the future Property Owners of any of the Property of the rights of Utility to provide the Property with potable water, wastewater and reclaimed water facilities and services, the Property Owner hereby covenants and agrees to have the above restrictive covenant or its equivalent included in the general subdivision restrictions and to place the same of record in the Public Records of St. Lucie County, Florida. 4. Upon the continued accomplishment of all the prerequisites contained in this Agreement to be performed by the Property Owner, and subject to completion of the water, wastewater and reclaimed water facilities necessary to serve the Property, Utility covenants and agrees that it will allow the connection of the potable water distribution, wastewater collection, and reclaimed water distribution facilities installed by Property Owner to the potable water, wastewater and reclaimed water facilities of Utility in accordance with the terms and intent of this Agreement and the UPAP. Such connection shall be in accordance with rules, and regulations of the Health Department, the UPAP, and other governmental agencies having jurisdiction over the utility operations of Utility. Property Owner shall connect the Property to the Utility reclaimed water distribution system in accordance with the reclaimed water requirements set forth in the UPAP. 5. Property Owner is required to pay the TAA in order to support investment in utility facilities, as well as the fixed costs of maintaining such facilities and the unused capacity it represents as provided in the UPAP. 6. Upon receipt of payment of the Connection Fees and the TAA due upon execution of this Agreement, Utility agrees to initiate the provision of water and wastewater utility service for 7 ERC's, and reclaimed water as provided herein, for Property Owner for a term of five (5) years, which term may be extended in accordance with the UPAP, as may be amended from time to time, and upon payment of applicable fees. 7. Property Owner hereby agrees to construct and to transfer ownership and control up to the Point of Service to Utility, at no cost, the on -site potable water distribution, on -site wastewater collection, and onsite reclaimed water distribution systems up to Property Owners reclaimed water storage facilities (not including on -site water reclaimed water distribution facilities on the consumer side of the discharge to the reclaimed water storage facilities) referred to herein and such off -site systems as necessary to connect Property Owner's on -site systems to Utility's master planned facilities (all such on -site and off - site facilities referred to in this paragraph collectively as"Property Property Owner Facilities." Upon acceptance of said Property Owner Facilities, Utility hereby agrees to accept ownership of the Property Owner Facilities for operation and maintenance purposes. Property Owner shall cause to be prepared engineering plans and specifications prepared by and sealed by a professional engineer registered in the State of Florida, showing the Property Owner Facilities. Utility will advise Property Owner's engineer of any sizing requirements as mandated by the UPAP. Such detailed plans may be limited to a phase of the Property, and subsequent phases may be furnished from time to time. However, each such phase shall conform to a master plan for the development of the Property and such master plan shall be submitted to Utility concurrent with or prior to submission of plans for the first phase. All such plans and specifications, including hard copy and electronic media, submitted to Utility's engineer shall be subject to the approval of Utility and shall conform to Utility's standards as set forth in the UPAP, and no construction shall commence until Utility has approved such plans and specifications in writing. After approval, Property Owner shall cause to be constructed, at Property Owner's expense, the Property Owner Facilities as shown on the plans and specifications. Fees, as set forth in the UPAP, shall be levied by Utility to cover the cost of plan review and inspection. The Property Owner shall also be required to pay the fees on Exhibit B to this Agreement During the construction of the potable water distribution, wastewater collection and reclaimed water distribution systems by Property Owner, Utility may from time to time inspect such installation to determine compliance with the plans and specifications, ade4uacy of the quality of the installation, and farther, shall be entitled to perform standard tests for pressure, infiltration, line and grade, and all other normal engineering tests to determine that the system has been installed in accordance with the approved plans and specifications and the UPAP. Inspection by Utility shall in no way relieve the Property Owner of his responsibility to install the facilities in accordance with the approved plans and specifications and the UPAP. Complete as -built plans, including hard copy and electronic media when utilized, shall be submitted to Utility upon completion of construction. 4 Property Owner hereby agrees to transfer to Utility title to all potable water distribution, wastewater collection and reclaimed water distribution systems installed by Property Owner's contractor pursuant to the provisions of this Agreement. Such conveyance is to take effect without further action upon the acceptance by Utility of the said installation. As further evidence of said transfer of title, upon the completion of the installation and prior to the rendering of service by Utility, Property Owner shall convey to Utility by Bill of Sale in a form provided in the UEP the complete on -site and off -site potable water distribution and wastewater collection system as constructed by Property Owner and approved by Utility, along with documentation of Property Owner's costs of construction and Property Owner's No Lien Affidavit, in form provided in the UEP. Subsequent to construction of the facilities and prior to receiving a nneter(s) from Utility, Property Owner shall convey to Utility all easements and/or rights -of - way covering areas in which potable water, wastewater and reclaimed water lines are installed by a recordable document in a form supplied by Utility. All conveyance of non -platted easements or rights - of -way shall be accompanied by a paid title policy for the benefit of Utility in a minimum amount of $50.00 per linear foot of any granted utility easement (based on the centerline of the easement); and • $50,000.00 for a Utility -owned wastewater lift station (if not constructed within an existing utility easement). Said title policy shall confirm the Grantor's rights to convey such easements or rights -of -way, and further, evidencing Utility's right to the continuous enjoyment of such easements or rights -of -way for those purposes set forth in this Agreement. The use of easement(s) granted by Property Owner may be used by other utilities as long as such is approved by Utility. Utility's acceptance of the potable water distribution, wastewater collection and reclaimed water distribution systems installed by Property Owner shall be in accordance with the provisions as set forth in the UPAP. All installations by Property Owner or its contractor shall be warranted for one year (or five years in the case of lift station pumps and motor assemblies) from date of Final DEP Certification. Mortgagees holding liens on such properties shall be required to release such liens, subordinate their position, or join in the granting of the easements or rights -of -way. All potable water distribution, wastewater collection and reclaimed water facilities shall be located within an easement if not located within platted or dedicated rights -of -way. The timely payment by Property Owner of all fees in accordance with tlie terms set forth herein shall be considered essential to the continued performance by Utility of the terms and conditions of this Agreement. The construction and transfer of ownership of the potable water distribution, wastewater collection and reclaimed water system does not and will not result in Utility waiving or offsetting any of its fees, rules or.regulations. Property Owner shall not have any present or future right, title, claim, or interest in and to the potable water, wastewater and reclaimed water facilities transferred to or owned by Utility. 8. Upon submission of this Agreement, Property Owner, at his expense, agrees to furnish Utility with a copy of the recorded Warranty Deed for the purpose of establishing ownership of the Property. Any mortgagee or lien holder having an interest in the Property shall be required to execute a Consent and Joinder of Mortgagee/Lien holder in the form as provided in the UEP. A Property Owner must submit either a title policy or a letter from an attorney licensed to do business in Florida confirming that either there is no mortgage or lien on the property or any mortgage or lien holder has properly executed a Consent and Joiner of Mortgagee/Lien holder. The title policy or letter must be issued upon submittal of the SDA. 9. Property Owner agrees with Utility that all potable water, wastewater and reclaimed water facilities conveyed to Utility for use in connection with providing potable water, wastewater and reclaimed water service to the Property, shall at all times remain in the complete and exclusive ownership of Utility, and F 1 any entity owning any part of the Property or any residence or building constructed or located thereon, shall not have the right, title, claim or interest in and to such facilities, or any part of them, for any purpose. In addition, Utility shall have the exclusive right and privilege to provide potable water, wastewater and reclaimed water services to the Property and to the occupants of .each residence or building constructed thereon. 10. Notwithstanding any provision in this Agreement, Utility may establish, revise, modify and enforce rules, regulations and fees covering the provision of potable water, wastewater and reclaimed water service to the Property. Such rules, regulations and fees are subject to the approval of Utility. Such rules, regulations and fees shall be reasonable and subject to -regulation as may be provided by law or contract. Fees charged to Property Owner or Customers located upon the Property shall be identical to fees charged for the same classification of service by Utility. All rules, regulations and fees as set forth in the UPAP, shall be binding upon Property Owner, upon any other entity holding by, through or under Property Owner, and upon any Customer of the potable water, wastewater and reclaimed water service provided to the Property by Utility. Said rules and regulations include, but are not limited to, Service Initiation, oversizing of facilities, use of previously oversized facilities or extension of facilities. 11. Property Owner or its assignee shall not have the right to and shall not connect to the potable water, wastewater and reclaimed water facilities of Utility until approval for such connection has been granted by Utility. The parties hereto further agree that the expense of construction, operation and maintenance of all improvements beyond the Point of Service shall be the sole cost and expense of the Property Owner of its assignee or other than Utility. 12. The sale, conveyance, transfer or assignment of this Agreement by the Property Owner shall only be performed in accordance with the provisions of UPAP. 13, All notices provided for herein shall be in writing and transmitted by mail or by courier and, if to Property Owner shall be mailed or delivered to Property Owner at: OD -I, LLC 6105 Transit Road, Suite 140 East Amherst, NY 14051 and if to Utility, shall be mailed to Utility at: St. Lucie County Utilities Director 2300 Virginia Avenue Fort Pierce, Florida 34982 With a copy to: St. Lucie County Attorney 2300 Virginia Avenue Fort Pierce, Florida 34982 14. The rights, privileges, obligations and covenants of Property Owner and Utility shall survive the completion of the work of Property Owner with respect to completing the potable water, wastewater and reclaimed water facilities and services to any phased area and to the Property as a whole. C 15. Unless Property Owner is requesting additional capacity for the property described in Exhibit "A", this Agreement shall supersede, null and void, all previous agreements or representations, either verbal or written, heretofore in effect between Property Owner and Utility, made with respect to the matter herein contained, and when duly executed, constitutes the entire agreement between the Property Owner and Utility. No additions, alterations or variations of terms of this Agreement shall be valid, nor can provisions of this Agreement be waived by either party, unless such additions, alterations, variations or waiver are expressed in writing and duly signed by the parties hereto. This Agreement shall be governed by the laws of the State of Florida and shall become effective upon execution by the parties hereto. The venue for actions arising out of this Agreement is in St. Lucie County, Florida. 16, Special Conditions: a. On -site improvements for the project will be constructed by Property Owner in accordance with the provisions of Section 7 above, and consistent with engineering plans and specifications as prepared by Knight, McGuire & Associates, Inc., Engineer's Project # 04-032, dated July 2007, and subsequent revisions, and subject to compliance with the requirements of the UPAP which shall control in the event of conflict. b. Off -site improvements for the project will be constructed by Property Owner in accordance with the provisions of Section 7 above, and consistent with engineering plans and specifications as prepared by Knight, McGuire & Associates, Inc., Engineer's Project # 04-032, dated July 2007, and subsequent revisions, and subject to compliance with the requirements of the UPAP which shall control in the event of conflict. c. St. Lucie County has a bulk utility agreement with FPUA to provide water capacity to the District. As a result, certain future users may additionally be subject to the payment of guaranteed revenue fees charged by the FPUA with respect to reserved utility capacity under the requirements of the FPUA instituted guaranteed revenue fee program. (remainder of page intentionally left blank) 7 IN WITNESS WHEREOF, Property Owner and Utility have executed or have caused this Agreement, with the named Exhibits attached, to be duly executed in several counterparts, each of which counterpart shall be considered an original executed copy of this Agreement. Appro d t F C rrectness: County Attorney WITNESSES: Ono 01. �:LU kf-� V_,nnt.,me: Print Name: ST. LUCIE COUNTY, FLORIDA: !may- ounty Administrator PROPERTY OWNER: CDT)t.c � Its: M4o4e w t ta"13 G R la-aa-bg- l1HRYL A. WAGNE NOTARY *uatle, =TATa Of NaW PORK 0"LVIO N NUMM COUNTY my ef"g6 "ate m A"N is, 200- Subject to the provisions of Section 6 above, the limitations on provision of water service listed below, and the payment of guaranteed revenues for FPUA ERC's as provided on Exhibit B below, FPUA agrees to reserve 7 ERC's of water plant capacity C FPUA ERC's") for Utility and Property Owner pursuant to the Terms of the Bulk Service Agreement Between St. Lucie County and the Ft. Pierce Utility Authority: FT. PIERCE UTILITY AUTHORITY: Its: 0, vec,+a,r of U4 l; iy`e s Date 1213 /a 8'