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HomeMy WebLinkAbout10-16-2009CITY OF FORT PIERCE JOINT MEETING WITH PORT ST. LUCIE, ST. LUCIE COUNTY & FORT PIERCE UTILITIES AUTHORITY St. Lucie County Commission Chambers 2300 Virginia Avenue Fort Pierce, FL 34982 Friday, October 16, 2009 — 2:00 p.m. to 5:00 p.m. AGENDA Call to Order — Mayor Robert J. Benton, Fort Pierce City Commission; Vice Mayor Jack Kelly, Port St. Lucie City Council; Paula A. Lewis, Chairman, Board of County Commissioners; Pamella Cully, Chairman, Fort Pierce Utilities Authority Board II. City of Fort Pierce — Initiating Resolution -David L. Recor, City Manager A. Issues concerning planning, annexation and service delivery for the area described in Exhibit A; B. Establishing that area of Midway Road west of 25`" Street as the natural , geographical and agreed north/south boundary line for future annexations and utility service by either city; C. Discuss improving coordination of transportation concurrency impacts on each jurisdiction's transportation network including collection of proportionate fair share payments; III. City of Port St. Lucie —Responding Resolution A. The capacity of Fort Pierce Utilities Authority to provide utility services in a timely manner within the area depicted in Exhibit A or the current lack of capacity to provide utility services within said area; B. The capacity of St. Lucie County Utilities to provide utility services in a timely manner within the area depicted in Exhibit A or the lack of the ability to provide utility services within said area; C. The impact on city facilities and infrastructure of the City of Port St. Lucie by those not residing within the municipal boundaries by the City of Port St. Lucie; D. Fort Pierce Utility Authority's threatening resolution and the hypocrisy thereof; E. St. Lucie County's failure to serve the City of Port St. Lucie in proportion to the tax revenues generated for the County from within the City of Port St. Lucie; F. The future ownership of County roads and rights -of -way within annexation areas. IV. St. Lucie County Provision of water and wastewater utilities north of Midway Road outside the Fort Pierce Utilities Authority retail service area which area is in the County's retail utility service area V. Questions and comments VI. Adjournment ANY PERSON SEEKING TO APPEAL ANY DECISION BY THE CITY COMMISSION WITH RESPECT TO ANY MATTER CONSIDERED AT THIS MEETING IS ADVISED THAT A RECORD OF PROCEEDINGS IS REQUIRED IN ANY SUCH APPEAL AND THAT SUCH PERSON MAY NEED TO INSURE THAT A VERBATIM RECORD OF THE PROCEEDINGS IS MADE INCLUDING THE TESTIMONY AND EVIDENCE UPON WHICH THE APPEAL IS TO BE BASED. r 9f ORI PIER[E �Of tRLZ OFFICE OF THE CITY MANAGER CITY HALL,100 NORTH U.S. 1 P.O. BOX 1480 FORT PIERCE, FLORIDA 34954-1480 April 7, 2009 Mr. Don Cooper City Manager City of Port Saint Lucie 121 S.W. Port St. Lucie Blvd Port Saint Lucie, Florida 34984 Dear Mr. Cooper, TEL (772) 460-2200 FAX (772) 489-8042 www.cftyoffortpierce.com On Monday, April 6, 2009, at its regularly scheduled meeting, the Fort Pierce City Commission adopted Resolution No. 09-23 initiating the negation of an interlocal service boundary agreement under Chapter 171, Part II, F.S. - The initiating resolution relates to the establishment of Midway Road west of 25th Street as the geographical north/ south boundary line for future annexations. A copy of the adopted resolution is enclosed and requested to be included as part of the public record in this matter. Sinc rely, David L. Recor, ICMA -CM City Manager cc: The Honorable Mayor and members of the City Commission Robert V. Schwerer, City Attorney Anne Sattedee, Communications and Marketing Director 1 `r:�� RESOLUTION NO. 09-23 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF FORT PIERCE, FLORIDA, PURSUANT TO CHAPTER 171, PART II, FLORIDA STATUTES, THE INTERLOCAL SERVICE BOUNDARY AGREEMENT ACT, INITIATING THE PROCESS FOR NEGOTIATION OF AN INTERLOCAL SERVICE BOUNDARY AGREEMENT WITH THE CITY OF PORT ST. LUCIE, FOR THE PURPOSE OF ADDRESSING THE ISSUES MORE PARTICULARLY SET FORTH HEREIN. WHEREAS, Part II, Chapter 171, Florida Statutes, entitled the "Interlocal Service Boundary Agreement Act" (Act) provides an alternative to Part I of said Chapter for local governments regarding the annexation of territory into a municipality and the subtraction of territory from the unincorporated area of the County; and WHEREAS, the Act further intends to provide as its principal goal the encouragement of local governments to jointly determine how to provide services to residents and property in the most efficient and effective manner while balancing the needs and desires of the community and is further intended to encourage intergovernmental coordination and planning, service delivery and boundary adjustments and to reduce intergovernmental conflicts and litigation between local governments; and WHEREAS, the Act is intended to prevent inefficient service delivery and an insufficient tax base to support the delivery of those services; and WHEREAS, on February 12, 2009, The Fort Pierce City commission and the Port St. Lucie City Council held a Special Joint Meeting to discuss annexation and issues of mutual concern' .Dertaining to the area west and north of Midway Road as the inderstood natural boundary between the two municipalities, said area being more particularly described and shown in the attached nap as Exhibit "A"; and WHEREAS, the City Commission of the City of Fort Pierce in accordance with the Act, wherein said resolution proposes for discussion certain issues, the majority of which the City believes are adequately addressed heretofore by policies and procedures existing or put into place by the City and with the consent and agreement of St. Lucie County and the City of Port St. Lucie, including but not limited to, an Interlocal Agreement dated February 10, 2004, as agreed to between the FPUA, St. Lucie County and Fort Pierce, and the City's Comprehensive Plan which provides for annexation of properties within the Fort Pierce Utilities Authority boundary in an orderly manner promoting efficiency of public service provision and economic vitality; and WHEREAS, it is the intent of the City Commission of the City of Fort Pierce, Florida to initiate discussions with the City of Port St. Lucie regarding the development of an interlocal service boundary agreement to address the above referenced concerns. Resolution No. 09-23 Page 2 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF FORT PIERCE, FLORIDA: 1. The City Commission hereby adopts this initiating resolution pursuant to the Act and invites the City of Port St. Lucie, Florida to commence the negotiations process under the Act to enter into an interlocal service boundary agreement to address issues concerning planning, annexation and service delivery for the area identified herein. 2. Establishing that area of Midway Road west of 25th Street as the natural, geographical, and agreed north/south boundary line for future annexations and utility service by either city. 3. Discuss improving coordination of transportation concurrency impacts on each jurisdiction's transportation network including collection of proportionate fair share payments. 4. The City Manager or his designee is hereby directed to provide a copy of this Resolution by United States Certified Mail to the Chief Administrative Officer of the City of Port St. Lucie, Florida. BE IT FURTHER RESOLVED, that this Resolution is and the same shall become effective immediately upon adoption. IN WITNESS WHEREOF, this Resolution has been duly adopted this 6th day of April, 2009. YOR COMMISSIONER ATTEST: Q-- CITY CLERK (CITY SEAL) i BOARD OF COUNTY COMMISSIONERS June 10, 2009 Donald B. Cooper Port St. Lucie City Manager 121 S.W. Port St. Lucie Boulevard Port St. Lucie, FL 34984 David Recor City of Fort Pierce City Hall, 100 North US #1 Fort Pierce, FL 34954 COUNTY ADMINISTRATOR FAYE W. OUTLAW, MPA rimy 11UN 1009 Cl i YMAA� �7-�, SlO : E FF1CF RE: Interlocal Service Boundary Agreement - City of Fort Pierce Resolution 09-23 Gentlemen: Enclosed is a certified copy of St. Lucie County Resolution No. 09-176, expressing the County's desire to participate in the negotiations between the City of Fort Pierce and the City of . Port St. Lucie pursuant to City of Fort Pierce Resolution No. 09-23 and any responding resolution from the City of Port St. Lucie. In this regard, I request that you coordinate with my office in the scheduling of any meetings involving the negotiation of an agreement pursuant to the initiating and responding resolutions. FWOlcb Encl. copy to: Board of County Commissioners County Attorney Sincerely, Faye W. Outlaw, MPA County Administrator CHRI5 DZADOV5KY, District No. 1 • DOUG COWARD, District No. 2 • PAULA A. LEWIS, District No. 3 • CHARLES GRANDE, District No. 4 • CHRIS CRAFT, District No. 5 County Administrator - Faye W. Outlaw, MPA 2300 Virginia Avenue • Fort Pierce, FL 34982-5652 • Phone (772) 462-1450 • TDD (772) 462-1428 FAX (772) 462-1648 • emoil: outlawf@stlucieco.org web site: www.stiucieco.org o S--0-r - ccQ,j:D a , S LAL-4-LAtR t A• SATI(2cja�- RESOLUTION NO. 09-176 A RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF ST. LUCIE COUNTY, FLORIDA, PURSUANT TO CHAPTER 171, PART II, FLORIDA STATUTES, THE INTERLOCAL SERVICE BOUNDARY AGREEMENT ACT, RESPONDING TO AN INITIATING RESOLUTION OF THE CITY OF FORT PIERCE AND SETTING OUT IN ACCORDANCE WITH SECTION 171.203(6), FLORIDA STATUTES, CERTAIN ISSUES FOR NEGOTIATION AND DISCUSSION WHEREAS, Part II, Chapter 171, Florida Statutes, entitled the "Interlocal Service Boundary Agreement Act" ("Act") provides an alternative to Part I of said chapter for local governments regarding the annexation of unincorporated territory into municipalities and the provisions of services related to such annexed territory; and WHEREAS, the St. Lucie County Board of County Commissioners ("Board") has been provided notice of the adoption by the City of Fort Pierce, Florida, City Commission ("FP) of. Resolution No. 09-23, adopting an initiating resolution pursuant to the Act, and inviting the City of Port St. Lucie ("PSL") to commence the negotiations process under the Act to enter into an interlocal service boundary agreement to address issues concerning planning, annexation and service delivery for the area identified in the resolution; and WHEREAS, one of the issues that is proposed to be discussed is the provision of water and wastewater utilities north of Midway Road outside the Fort Pierce Utilities Authority ("FPUA") retail service area which area is in the County's retail utility service area; and WHEREAS, it is the intent of the Board to respond to FP's initiating resolution to provide the Board the opportunity to participate in the discussions between FP and P5L and the negotiation process under the Act to discuss issues that may off ect the County. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF ST. LUCIE COUNTY, FLORIDA: A. The Board hereby adopts this responding resolution pursuant to the Act, and invites FP and PSL, by reply, to commence discussions and negotiations pursuant to the Act so as to enter into an Interlocal Service Boundary Agreement addressing the area and the issues set forth in FP Resolution No. 09-23, and other issues raised by PSL in a responding resolution, if any. B. The Board directs the County Administrator or her designee to provide a copy of this Resolution by United States Certified Mail to the City Manager of the City of Fort Pierce and the City Manager of the City of Port St. Lucie, as the Chief Administrative Officers of those respective cities. C. This resolution shall be effective on the date of its adoption. After motion and second, the vote on this resolution was as follows; Chair Paula A. Lewis AYE Vice Chair Charles Grande AYE Commissioner Doug Coward AYE Commissioner Chris Craft AYE Commissioner Chris Dzadovsky AYE PASSED AND DULY ADOPTED this 2N" day of June, 2009. rl- BOARD OF COUNTY COMMISSIONERS �T. LUCIE COUNTY, FLORIDA 3Y: Chairman 4PPROVED TO FORM AND CORRE S• W: County rney ITATIE Of IFLORMA ST IL!WE COUNTY MIS)STO CERTIFY THAT THIS IS A TRilE AX8CORRECT COPY OF THE flii�Ol N hi.. kOSr!'� E. SMITM. CLEM ffatt; CITY OF PORT ST. LUCIE "A CITY FOR ALL AGES" June 11, 2009 Mr. David L. Recor, ICMA-CM City Manager City of Fort Pierce 100 North U.S. 1 PO Box 1480 Fort Pierce, Florida 34954-1480 Re: Resolution No. 09-R79 Dear Mr. Recor: In response to your Resolution No. 09-23, pursuant to Chapter 171, Part 11, Florida Statutes, please find a corresponding response as required by Florida Statutes; entitled Resolution No. 09-R79. Said Resolution was passed on June 8, 2009 by the City Council, and I am providing a signed and certified copy of Resolution No. 09-R79 for your convenience as required by Florida Statutes. If you have any questions, please feel free to contact this office at your convenience. Sincerely, ALad DONALD B. COOP !�� City Manager DBC:mv Attachment cc: City Council Jerry A. Bentrott, Assistant City Manager Gregory J. Oravec, Assistant City Manager Faye W. Outlaw, MPA, St. Lucie County Administrator (w/copy of Resolution No. 09-R79) Roger G. Orr, City Attorney 121 S.W. Port St. Lucie Boulevard • Port St. Lucie, FL 34984-5099. 772/871-5225 RESOLUTION 09-R79 COUNCIL ITEM 11 DATE 06/08�J09 STATE OF FLORIDA A RESOLUTION RESPONDING TO CITY OF FORT PIERCE RESOLUTION 09-23 S1. LUQE CQQi TY.. AND FORT PIERCE UTILITIES AUTHORITY RESOLUTION U.A. 2009-09, CITY,,� t liT ST& E ��ts ppF,�i � TrH�QENTIFYING ADDITIONAL AREAS FOR DISCUSSION PURSUANT TO THE I�gEAND eTERLOCAL SERVICE BOUNDARY AGREEMENT ACT; PROVIDING ADDITIONAL OF E F10" .fV: ISSUES TO BE DISCUSSED PURSUANT TO THE INTERLOCAL SERVICE THI E;--� _BOUNDARY AGREEMENT ACT; IDENTIFYING ST. LUCIE CO UNTY AS A SE iT. NECESSARY PARTY TO THE DISCUSSIONS PURSUANT TO THE INTERLOCAL -'1cLE�r SERVICE BOUNDARY AGREEMENT ACT; PROVIDING AN EFFECTIVE DATE By ....... OR ERK WHEREAS, the City Commission of the City of Fort Pierce, Florida, pursuant to DATE r 'Tf 2 --mhapter 171, Part 11, Florida Statutes, the Interlocal Service Boundary Act (hereinafter (CITY SEAL) the "Act") initiating a process for negotiation of an interlocal service boundary agreement with the City of Port St. Lucie by the adoption of Resolution 09-23; and WHEREAS, the City of Fort Pierce Resolution 09-23 ("Initiating Resolution") was received by the City Manager on April 10, 2009; and WHEREAS, the City Council of Port St. Lucie, upon review of the Act and the Initiating Resolution, has determined that St. Lucie County is a necessary party to any discussions pursuant to the Act; and WHEREAS, the City of Port St. Lucie is in receipt of Resolution U.A. 2009-09 adopted by the Fort Pierce Utilities Authority and has considered the same in the context of the Initiating Resolution. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PORT ST. LUCIE, FLORIDA: Section 1. The City Council of the City of Port St. Lucie hereby adopts this responding resolution in response to City of Fort Pierce Resolution 09-23 and Fort Pierce Utilities Authority Resolution U.A. 2009-09 pursuant to the Interlocal Service Boundary Agreement Act. Section 2. The area of discussion pursuant to the Act shall include the entire utilities services area of the City of Port St. Lucie utilities as depicted on Exhibit "A," attached hereto and incorporated herein. Section 3. In addition to the issues raised in the Initiating Resolution and the Fort Pierce Utilities Authority Resolution U.A. 2009-09, the following matter shall be discussed: Page 1 of 2 RESOLUTION 09-R79 (a) The capacity of Fort Pierce Utilities Authority to provide utility services in a timely manner within the area depicted in Exhibit "A," attached hereto, or the current lack of capacity to provide utility services within said area. (b) The capacity of St. Lucie County Utilities to provide utility services in a timely manner within the area depicted in Exhibit "A," attached hereto, or the lack of the ability to provide utility services within said area. (c) The impact on city facilities and infrastructure of the City of Port St. Lucie by those not residing within municipal boundaries by the City of Port St. Lucie. (d) The impact of future developments within the corporate limits of the City of Fort Pierce, and within the unincorporated areas of St. Lucie County on the facilities and infrastructure of the City of Port St. Lucie. (e) Fort Pierce Utility Authority's threatening resolution and the hypocrisy thereof. (f) St. Lucie County's failure to serve the City of Port St. Lucie in proportion to the tax revenues generated for the County from within the City of Port St. Lucie. (g) The future ownership of County roads and rights -of -way within annexation areas. Section 3. The City Manager, or his designee, is hereby directed to provide a copy of this resolution by United States Certified Mail to the Chief Administrative Officer of the City of Fort Pierce, Florida, St. Lucie County, Florida, and the Fort Pierce Utilities Authority. Section 4. This Resolution shall take effect immediately upon its adoption. PASSED AND APPROVED by the City Council of the City of Port St. Lucie, Florida, this of June. 2009. CITY COUNCIL CITY OF PORT STi"QU IE ,1 ,l ATTEST: Patricia P. Christensen, Mayor i` /;A), Karen A. Phillips, City Clerk APPROVED AS TO FORM: RogerOrr, City Attorney H:ldeniselresoslresos - Minterlocal srvce boundary agmt - response to fort pierce reso.doc Page 2 of 2 RESOLUTION U.A.2009-09 A RESOLUTION OF THE FORT PIERCE UTILITIES AUTHORITY SETTING FORTE ITS POSITION ON PROPOSED WATER AND WASTEWATER SERVICE BY THE CITY OF PORT ST. LUCIE TO AREAS NORTH OF MIDWAY ROAD AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the Fort Pierce Utilities Authority Board ("FPUA Board") has become aware that the City of Port St. Lucie ("PSL" may attempt to supply water and wastewater service to areas north of Midway Road; and WHEREAS, PSL and SLC entered into an Agreement of Transfer on June 28, 1994, wherein SLC transferred the former General Development utility system to PSL; and WHEREAS, incorporated in the above -referenced Agreement of Transfer was an agreement to certain utility service area boundaries with PSL's service area bounded on the north by Midway Road and on the west by Rangeline Road; and WHEREAS, the above -referenced Agreement of Transfer is a matter of record; and WHEREAS, FPUA has relied on the above Agreement and the service areas set forth therein in its plan to serve individuals and to serve SLC through an interlocal bulk water agreement dated February 10, 2004. WHEREAS, in reliance on both agreements referenced above, and in preparation to honor the interlocal bulk water agreement with SLC to serve the area north of Midway Road (which area has been declared by SLC to be a special district for which it will supply all water and wastewater), FPUA has committed in its Water and Wastewater Master Plan, Capital Improvement Plan and South Florida Water Management District Water Use Permit to provide water and wastewater services to that area; NOW, THEREFORE, be it resolved by the Fort Pierce Utilities Authority: SECTION 1. If PSL makes any effort to serve water or wastewater North of Midway Road, FPUA will consider it a violation of the Agreement of Transfer between PSL and SLC. SECTION 2. If PSL makes any effort to serve water or wastewater North of Midway Road, FPUA will consider that PSL is entering into an area that has already been determined by SLC individually or in conjunction with FPUA for FPUA to serve now and in the future. SECTION 3. By this Resolution, FPUA puts PSL on notice that in the event PSL makes any effort to serve water or wastewater North of Midway Road, FPUA is prepared to defend its right to exclusively serve that area. SECTION 4. Effective Date. This Resolution shall take effect immediately upon its adoption. This Resolution is adopted this day of 2009. Attest: FORT PIERCE UTILLITIES AUT Y Title: Secretary (SEAL) Approved as to Form and Correctness: �lV R. N. Koblegard, III, Attorney for Fort Pierce Utilities Authority OFFICE OF CITY CLEV ClTii OF FT, PIERCE 100 N_ U.S. 1 INTERLOCAL AGREEMENT P.O. BOX 148-0 FT PIERCE, FL 34954 THIS AGREEMENT made entered into this /v day of 2004, by and among the CITY OF FORT PIERCE ("CITY"), a Florida municipal Corporation, The FORT PIERCE UTILITIES AUTHORITY ("FPUA'), a Special District organized under the Charter of the City of Fort Pierce, ST. LUCIE COUNTY ("County'), a political subdivision of the State of Florida- WITNESSETH: WHEREAS, the CITY and COUNTY are currently adverse parties in St. Lucie County v City of Fort Pierce, Case No.: 02-CA-000390(PC), in the Circuit Court of the Nineteenth Judicial Circuit in and for St. Lucie County and City of Fort Pierce v St. Lucie County, Case No_: 03-CA- 000483(OC), in the Circuit Court of the Nineteenth Judicial Circuit in and for St_ Lucie County; and, ::T-1-nr-4 m :-•c WHEREAS; all parties hereto are likewise parties to City of Fort Pierce and Fort Pierce on m z I z= rn m� Utilities Authority v.St. Lucie County and Port St. Lucie, Case No.: 03-CA-000530(OC), in the ZS Circuit Court of the Nineteenth Judicial Circuit in and for St. Lucie County; and, F\+ Z r O WHEREAS, there exists numerous disputes between the CITY and COUNTY over the _r_-01 r__ c,:m cr___j c c CITY's annexation policy wherein the CITY imposes a requirement that property owners agree to annexation when property becomes contiguous, as a condition for receipt of potable water and om wastewater services from the FPUA; and, �s WHEREAS, the COUNTY is desirous of entering into an agreement with the CITY and 35 Mo "' FPUA for potable water and wastewater services in certain geographical areas under a bulk sale C0 T agreement; and, z r C3 M, CD C A- WHEREAS, there exists a dispute between the City and FPUA on the one hand, and the COUNTY on the other, over whether FPUA is the sole provider of potable water and wastewater services in certain geographical areas and whether provisions of service by the County in any of these geographical areas violates the COUNTY's Comprehensive Plan, any element thereof, the COUNTY's potable water/wastewater master plan, County Resolution 91-106, and other implementing documents; and WHEREAS, the parties are desirous of eliminating disputes over their current and future utility service areas and boundaries as to which they respectively provide or will provide potable water and wastewater services; and, WHEREAS, the parties jointly recognize declared public policy of this state, as expressed by Fla. Stat. Section 164.102, that conflicts between governmental entities be resolved to the greatest extent possible without litigation wherein it is in the public's interest that expense and uncertainty of such litigation be avoided and where important public policies involving annexation, future revenues and provision of potable water and wastewater services are better served by what follows; and WHEREAS, it is the purpose and intent of this Agreement to resolve most, but not all of the current disputes between the parties, and to further provide a framework within which such disputes and concerns as aforesaid may be discussed and potentially resolved as herein provided for, and, WHEREAS, the parties intend to be bound by the terms and provisions hereof and further recognize that this Agreement sets forth specific legal rights and remedies with respect to the subject matter herein contained. NOW THEREFORE, it is agreed by and among the parties hereto as follows: -2- 0 ro 0 0 .o T_ 3> M rn m r-3 0 1. COUNTY shall not provide potable water or wastewater utility service within the boundaries of the area designated on Exhibit I attached hereto, such area known hereafter as "Area A", without the prior written consent of CITY and FPUA, which consent may be withheld at the sole discretion of CITY and FPUA. FPUA shall provide potable water and wastewater utility service in Area "A". The County acknowledges that FPUA _will provide such utility services within Area "A" in a manner consistent with the City's annexation policies. The County further_ agrees_ to. adopt appropriate policies within the County's Comprehensive Plan, Utility Master Plan and other growth management regulations acknowledging, without prejudice, that FPUA will provide water and wastewater service within Area "A" in a manner consistent with the City's annexation policies. COUNTY shall withdraw and agrees not to proceed with all pending objections to any CITY annexation located within Area "A", whether currently in litigation or conflict resolution_ CITY shall withdraw without prejudice those Ordinances (Nos. K-129 through K-134) that proposed to annex all of those properties that were included as part of the City's plan to annex the County -owned airport properties and agrees not to proceed with the adoption of those Ordinances. Notwithstanding anything to the contrary in this Agreement, the currently existing annexation agreement covering the St. Lucie County Airport will remain in full force and effect and no party shall be deemed to have waived any right or entitlement under the annexation agreement or any objection to the annexation agreement by entering into this Agreement. Upon signing this Agreement, CITY and COUNTY shall, immediately work together towards the goal of entering into a Joint Planning Agreement to eliminate future annexation disputes within Area "A" and coordinate the provision of governmental services related to such -3- annexation. The County, City and FPUA agree to cooperate on the eventual relocation of the FPUA's Hutchinson Island wastewater treatment plant. 2. The FPUA shall not provide potable water and wastewater utility service within the boundaries of the area designated on Exhibit I as attached hereto, such area known hereafter as "Area B" (except as to customers currently being serviced by the FPUA,_ and as listed in Exhibit 3 attached hereto), without the prior written consent of County, which consent may be withheld at the sole discretion of County. 3. FPUA may provide the County with bulk potable water, wastewater and reclaimed water service within Area B in accordance with the terms of the bulk service agreement (the "Bulk Service Agreement") in Exhibit 4 attached hereto. The parties shall execute the Bulk Service Agreement upon execution of this Agreement. When provided, the FPUA shall provide such bulk services to the County without the requirement of annexation into the City as a condition to such service. 4. It is expressly intended that nothing in this Agreement be construed as creating or evidencing an obligation on the part of any of the parties to unconditionally provide potable water or wastewater services in Area "A" or Area `B" That is FPUA may not be compelled by any party, person or entity to provide service within Area A, and COUNTY may not be compelled by any party, person or entity to provide service within Area B. 5. In accordance with FPUA Resolution UA 91-8, and subject to the conditions set forth below, FPUA shall sell the FPUA water distribution system south of the Florida Power & Light nuclear power plant ("FP&L Plant") to the County. FPUA will retain retail water service to the area between the current City limits (Blue Heron Boulevard) and the FP&L Plant in Area A_ From that point south to the Martin County Line, FPUA will continue to provide retail water -4- 0 C) 0 0 c� m GD ra n0 service until bulk water revenues from the County on the County's mainland utility system equal the difference between combined current FPUA revenues on North and South Hutchinson Island and the bulk water revenues for those areas at the $1.90 per 1000 gallons rate (plus any incremental increases as allowed by the Bulk Service Agreement)_ At such time, the County shall compensate FPUA for the value of the water distribution system and Repump No. 2., which value is to be determined to the mutual satisfaction of the County and FPUA. 6_ COUNTY agrees, for itself, that the Bulk Rate Utility Interlocal Agreement entered into by the City of Port St. Lucie and COUNTY, as approved by the County Commission on or about November 4, 2002, and as may be subsequently modified or amended, shall not apply to any potable water or wastewater service within Area "A" which is reserved by this Agreement to CITY and FPUA. 7. The parties agree that no development order shall be issued, nor any construction commence, after this Agreement is approved be each of the parties and it becomes effective according the terms hereof which may be inconsistent with the terms and provisions above which, among other things, establish service Area "A" to CITY and FPUA, and service Area "B" to COUNTY. 8. The parties agree that within sixty (60) days after this Agreement becomes effective, COUNTY will conduct a straw poll of the residents of the Indian River Estates area as to whether or not they desire to receive water service and if so, whether they desire to receive retail utility service from the FPUA subject to a deferred annexation policy of 15 years as approved and ratified by previous action of the CITY, or if they desire to receive retail utility service by COUNTY with bulk utility service provided by FPUA. The CITY and FPUA shall prepare the form of the straw poll ballot with COUNTY providing CITY a description of the COUNTY -5- service option as well as the no water service option. The parties agree that service to the Indian River Estates area will be provided based upon the decision of the majority vote of those residents participating in the straw poll. In the event that the residents approve retail service by FPUA, FPUA agrees to contribute $3,500,000 toward the construction of the MSBU project. 9. The parties understand and represent that the terms of this Agreement either are, or should be consistent with requirements of their respective comprehensive plans and current potable water/wastewater master plans. Each will provide the other written confirmation of consistency, in form and substance acceptable to the others, and approved by the governing body. In the event there is a material inconsistency between the terms of this Agreement and either or both of any party's comprehensive plan and potable water/wastewater master plan, such inconsistency shall be promptly reviewed and addressed within the next one hundred eighty (180) days in the manner provided by law, based upon considerations of public health, safety and general welfare and.such other factors as are properly considered in the course of normal review. Such review is not to be construed as "contract planning" as prohibited by law inasmuch as no party hereto commits itself in advance to eliminate any such inconsistency based solely upon this Agreement. 10_ In the event that either party considers an amendment of its Comprehensive Plan or potable water/wastewater Master Plan which could reasonably be interpreted or understood as inconsistent with any term of this Agreement, such party shall give immediate written notice of the considered provision to the other parties as early in the process of proposed adoption as possible_ 11. Upon execution of this Agreement by all governing bodies, through resolution, and when it further becomes effective, it shall be submitted for approval by the Court, as incorporated in joint motions for approval, and shall be binding upon the parties as to any subject matters covered -6- by this Agreement, which may be embodied within issues in each of the pending cases named above, numbers 02-CA-000390(PC), 03-CA-000483(OC), and 03-CA-000530(OC)_ To the extent this Agreement may constitute a full and final settlement of all issues pending in such case, the parties shall agree to a stipulated final judgment, and such cases will then be dismissed. Such dismissal shall be with prejudice except that it shall be without prejudice to any matter, cause, or issue not otherwise governed by this Agreement, and shall further be without prejudice to revival to any proceedings otherwise dismissed in the event this Agreement or any part thereof is invalidated hereafter through final judgment by a court of competent jurisdiction in any proceeding brought by a person or entity who is not a party to this Agreement. Should any such action be refited after dismissal, it is agreed that no Section 95.11, or defense of collateral estoppel, or other defense based upon passage of time, nor shall any subsequent voluntary dismissal by any party thereafter be deemed an adjudication on the merits for purposes of Fla_R.Civ.P. Rule 1.420(a) by virtue of the original dismissal pursuant to this Agreement_ 12_ The parties to this Agreement agree that neither the City, the FPUA, nor the County shall take any actions, either directly or indirectly, to prevent the implementation of this Agreement or alter the terms of this Agreement, including, but not limited to filing legal actions or administrative actions_ 13. This Agreement may be executed in counterparts, and shall become effective upon filing with the Clerk of the Circuit Court. 14_ This Agreement has been approved by the governing political bodies of the CITY, County and FPUA, and each signatory hereto represents their authority to execute this Agreement on behalf of their respective local government. 15. Nothing in this Agreement shall be deemed to affect the rights of any person not a party to &A 0 a.+ 0 0 c, m CD r.3 cn this Agreement. This Agreement is not intended to benefit any third party who is not a signatory to this Agreement. 16. Each party to this Agreement shall bear its own costs, including attorneys' fees, incurred in connection with the legal proceedings resolved by this Agreement. 17. All parties to this Agreement are deemed to have participated in .its drafting- In the event of any ambiguity in the terms of this Agreement, the parties agree that such ambiguity shall be construed without regard to which of the parties drafted the provision in question- 18. Should any part of this Agreement be found and declared by a Court of competent jurisdiction to be invalid for any reason, such invalid portion shall be severed from this Agreement and the remainder of the Agreement not otherwise declared expressly invalid shall remain in full force and effect. 19. Each party further agrees and consents that in the event of a breach or threatened breach of the provisions of this Agreement by any party, in addition to any other rights and remedies available to any party under this Agreement or otherwise, any party shall be entitled to an injunction to be issued by a court of competent jurisdiction, restricting or prohibiting the other party from committing or continuing any violation of this Agreement, and upon a proper showing as to the breach or threatened breach, irreparable harm, damage, or injury shall be presumed. The parties further agree that if either party avails itself of the procedure set forth in Florida Statute 164.1041(2)(as such statute exists or is hereafter amended), and a finding is made that an immediate danger to health, safety, or welfare of the public requires immediate legal action, or that significant legal rights will be compromised if a court proceeding does not take place immediately, the other party shall not challenge or otherwise object to the factual finding by the governing body of the other party except as to any procedural error or defect_ -8- 20. All notices required or permitted to be given under the terms and provisions of this Agreement by either party to the other shall be in writing and shall be sent by registered. or certified mail, return receipt requested, to the parties as follows: As to the CITY: Fort Pierce City Manager Fort Pierce City Hall 100 North U.S. I Post Office Box 1480 Fort Pierce, Florida 34954-1480 As to the FPUA: Fort Pierce Utilities Authority Director 206 South 6'" Street Fort Pierce, Florida 34950 As to the COUNTY: St_ Lucie County Administrator 2300 Virginia Avenue Administrative Annex Fort Pierce, Florida 34982 With a copy to: Fort Pierce City Attorney Fort Pierce City Hall 100 North U.S. I Post Office Box 1480 Fort Pierce, Florida 349544480 With a copy to: Fort Pierce Utilities Authority Attorney 401-A South Indian River Drive Fort Pierce, Florida 34950 With a copy to: St_ Lucie County Attorney 2300 Virginia Avenue Administrative Annex Fort Pierce, Florida 34982 21. In the event suit is brought to resolve any dispute between the parties arising from this Agreement, each party shall bear its own attorneys' fees, court costs and litigation expenses, including all fees and costs of all experts, consultants, and other related out -of -court expenses_ Each party shall bear its own costs, including attorneys fees, incurred in connection with the legal proceedings resolved by this Agreement. 22. This Agreement shall not be changed, modified or amended in any respect except by written instrument signed by the parties hereto_ In IN WITNESS WHEREOF the parties have executed the Agreement: ST_ LUCIE COUNTY CITY OF FO I a _ Paula A..Lewis, Chairman F4, y: �/ ;...:e A/Q 'docc FORT P ER UTILITIES AUTHORITY By: Thomas K. Perona, Chairman DATE: 3 / 2 /04 AAEST-,- `` nrPt1TT CLERK :s VED AS TO FOORt AND -10- Mayor DATE: March 1..2004 APPROVED ASPfORM AND (OR 1 Assistant ATTEST: r O t•= , i, ; By: Cassandra Std'y>1✓ March 1 f Date: ?1��igj. �y- yeNtf.ft• XT.�. ti 3> CD rn 1-- on co Indian River County Martin County Wws Fl�!A(�j"t� A.'% SL Ujae Cow -Ay Airport Water ups (epsfir g) Sewer kw-s (�) Gas fines (9) �yuban Svc N c NOTE: DETAILED COLOR -CODED MAP (Exhibit I) IS ATTACHED TO THE ORIGINAL INTERLOCAL AGREEMENTS ON FILE WITH THE CITY OF FORT PIERCE, ST_ LUCIE COUNTY, AND THE FORT PIERCE UTILITIES AUTHORITY. EXHIBIT 3 Customers Serviced by FPUA within Area B As of the effective date of the Interlocal Agreement and Bulk Service Agreement, FPUA provides service to the following customers in Area B: St Lucie County Landfill — Wastewater Service Only Elie J_ Boudreaux III, PE Director of Utilities 0 T irl F- CO L-I F—� EXHIBIT 4 AGREEMENT BETWEEN FORT PIERCE UTILITY AUTHORITY AND ST. LUCIE COUNTY, FLORIDA, FOR PROVISION OF BULK WATER, WASTEWATER AND RECLAIMED WATER SERVICE THIS AGREEMENT is entered into between the Fort Pierce Utility Authority, a Special District organized under the Charter of the City of Fort Pierce ("FPUA"), and St. Lucie County, Florida, a political subdivision of the State of Florida ("St. Lucie County"). WITNESSETH: WHEREAS, St. Lucie County has various needs from time to time throughout the areas that St. Lucie County's utility department providesservice to purchase bulk potable water, wastewaterand reclaimed water service; and WHEREAS, FPUA has available water, wastewater and possible future reclaimed water service from time to time which it desires to make available to St. Lucie County for Purchase; and WHEREAS, both St. Lucie County and FPUA have the legal ability and authority to enter into an agreement for the sale and purchase of water and wastewater, and WHEREAS, the Parties find that this Agreement serves a public purpose and is to the public's benefit; and WHEREAS, St. Lucie County and FPUA desire to enter into this Agreement to accomplish the purposes set forth above (the "Agreement"). NOW, THEREFORE, inconsideration of the premises and covenants herein contained, FPUA and SL Lucie County agree as follows: Whereas Statements: The foregoing statements are true and correct. Agreement to Serve: a. FPUA agrees to provide bulk potable water, wastewater and reclaimed water service ("Bulk Service") to St_ Lucie County, in accordance with the terms and provisions of this Agreement. Subject to availability at the time of request, St_ Lucie County may, from time to time, request FPUA to provide water, wastewater or reclaimed water service to St_ Lucie County at points of connection located outside of FPUA's existing utility service area as proposed by St. Lucie County. To the extent that the service requested by St. Lucie County (a "Service Request") is available at the time of request and interconnection with the St. Lucie County utility system at the proposed points of connection is economically feasible, as detemuned in the reasonable discretion of FPUA, and provided that the provisions of Section 3 below are complied with, including a determination that utility service within the city limits of Fort Pierce or FPUA service area will not be impaired or detrimentally affected, FPUA shall provide the requested service. Provided each Service Request complies with the requirements of this Agreement, the respective staffs of St. Lucie County and FPUA are authorized to implement the terms of this Agreement with respect to such Service Request without further action of the St. Lucie County Commission or FPUA governing board. There is no annexation requirement g:�lu7\:tgrcrmmimcriodfyua-Ez4 2-9 as a condition of provision of service by FPUA to St. Lucie County pursuant to the terms of this Agreement- b. As required by all applicable FPUA resolutions addressing FPUA's Industrial Pretreatment Program and City of Fort Pierce Sewer Use Ordinance No. UA 98-5 or succeeding revised Sewer Use Ordinance, any industrial users that connect to the St_ Lucie County utility system served by FPUA Bulk Wastewater Service will be subject to FPUA's industrial pretreatment program. This program is governed by Administrative Code 62-625 and administered by the State of Florida Department of Environmental Protection, Tallahassee, Florida_ All permitting and operational costs, including surchargeslexcess strength fees as defined and applicable in the FPUA resolutions, will be collected by St. Lucie County from such industrial users and remitted to FPUA with the next month's billing of Bulk Service Rates. The specific responsibilities of FPUA and St. Lucie County with regard to implementing and enforcing an Industrial Pretreatment Program that meets.all state and federal requirements will be delineated in separate Interlocal Agreement dealing only with the Industrial Pretreatment program in the bulk wastewater service areas. 3. Method of Extension and Delivery of Service: The provisions for the construction, installation and operation of the facilities of FPUA up to the point(s) of connection and the facilities of St. Lucie County past the point(s) of connection will be determined jointly by FPUA and St. Lucie County. St. Lucie County shall share equitably with FPUA in the capital cost associated with the extension of new mains or oversizing of mains necessary to bring adequate quantities of water to the bulk metering point(s) ofconnection in accordance with the then current FPUA policies for extending water and sewer service to new customers. St. Lucie County shall bear the initial capital cost of the master meter(s), backflow prevention devices, and pressure -sustaining valves required for service to St. Lucie County and shall transfer ownership of such master meter(s) and other backflow prevention or pressure sustaining devices to FPUA, which shall, after transfer, assume the obligation to operate, maintain and replace such master meter(s) and other devices. All master meters and backflow prevention devices shall be tested annually by FPUA, with the cost of such testing to be paid by St. Lucie County_ FPUA shall provide service to SL Lucie County at the points of connection in o accordance with then existing regulations and standards not in conflict with the terms of this o Agreement or the Charter of the City of Fort Pierce. , x 4_ Rates and Charges: St_ Lucie County agrees to pay the following bulk rates for the services requested_ FPUA shall charge St. Lucie County for bulk water service at a rate of S1.90 per thousand gallons (the "Bulk Water Rate"), for bulk wastewater service at a rate of $4.60 per thousand gallons (the "Bulk Wastewater Rate') and a rate for bulk reclaimed water service (including Capital CO Improvement Charges, if any) as shall be agreed upon between the parties at such time as FPUA institutes a reclaimed water service program (the `Bulk Reclaimed Water Rate'), all as measured at master meter(s) for each service (collectively, the "Bulk Service Rates"). Bulk wastewater volumes for billing shall be determined from bulk water meter readings and retail irrigation -only meter readings within the bulk water service area, as described in Paragraph 6. The Bulk Service Rates may be revised from time to time by FPUA, at such time and in the same percentage as FPUA revises its retail residential customer class commodity charges for the lowest consumption level. There shall be no surcharge imposed on the Bulk Rates charged to St. Lucie County. Retail water and wastewater rates established by St. Lucie County for the bulk water service areas shall be structured such that they will not be lower than the retail water and wastewater rates for FPUA customers within the City of Fori Pierce. Payments of Water/Wastewater Capital Improvement Charges: a- Provisions with .respect to St- Lucie County's payment of Water and Wastewater Capital Improvement Charges are as follows: Water Capital Improvement Charges- $1,378.00 per 5 taaY\ogF cmM6mtr1m\fpu2-Ex4 2-9 equivalent residential connection ("ERC'). A Water .ERC is based upon 300 gallons per day; Wastewater Capital Improvement Charges: S 1,222-00 per ERC. A Wastewater ERC is based upon 240 gallons per day. Separate Capital Improvement Charges will be assessed for irrigation -only water use, in accordance with standard FPUA policies. All Capital Improvement Charges may be revised from time to time by FPUA, at such time and in the same percentage as the FPUA revises its retail residential customer class Capital Improvement Charges. There shall be no other capital or impact charges to St. Lucie County for Bulk Service. b_ St. Lucie County willcollect the WaterCapital Improvement Charges and Wastewater Capital Improvement Charges and remit the same to FPUA upon the earlier of the initial provision of utility service by St. Lucie County to a customer or the receipt of payment by St. Lucie County of such Capital Improvement Chargespursuant to a developers agreement reservingutility capacity with St. Lucie County. St. Lucie County and FPUA shall resolve in good faith any issues regarding whether a part icularcustomer ordeveloper agreement is being provided utility service pursuant to this Bulk Service Agreement. St. Lucie County and FPUA shall perform a true -up of Capital Improvement Charge payments as of October 1 of each year during the term of this Agreement based upon the average daily flows for the prior 12 months, as measured at the master meter(s), divided by the agreed upon Water ERC and Wastewater ERC set forth above ("True Up ERC's). In the event that the True Up ERC's exceed the number of ERC's for which St. Lucie County has made payment to FPUA, then St. Lucie County shall pay the difference between the True Up ERC's and the paid ERC's. if bulk average daily flows indicate a lower demand than ERC projections, there shall be no downward adjustment of ERC's or Capital Improvement Charges. The bulk wastewater service areas will coincide with bulk water service areas. C.It is the intention ofFPUA to utilize the existing South Hutchinson Island (SHI) Water Reclamation Facility (WRF) to it's fullest capacity. ERC's for wastewater treatment will be issued to FPUA and St_ Lucie County bulk wastewater customers until 100% of the SHI WRF capacity is reached. St. Lucie County agrees that Capital Improvement Charges collected for bulk wastewater o ERC's connected to the SHI WRF are reimbursements to FPUA for sunk cost of treatment and m transmission facilities necessary to transport and treat the wastewater. Both parties understand that 0 o when certain capacity limits are reached, State regulations require certain steps to be taken to start the r process for a new plant to be sited, designed and constructed. Both parties agree that in the event the SHI WRF is required to be taken out of service by a regulatory agency or by any statute, rule, regulation or court order, it will be the joint responsibility of St. Lucie County and FPUA to plan for a replacement capacity at another site. FPUA and St. Lucie County will plan for and construct the rri future mainland wastewater treatment plant as partners, with each party paying it's share of costs on an allocated capacity basis, rather than a capital improvement charge basis. 6- Billing: FPUA shall bill St. Lucie County each month for Bulk Service, subject to the provisions of the FPUA rules and regulations, as amended from time to time. Bulk wastewater billings shall be based upon bulk water meter readings, less the aggregate sum of all imgation-only water meter readings within the County's bulk water service area. FPUA shall separate each month's bill by points of connection between FPUA and St. Lucie County. Bills are due when rendered and will be considered late if not paid within 15 days- Notwithstanding provisions in the FPUA Code to the contrary, FPUA shall not discontinue Bulk Service to St- Lucie County for non-payment unless it has provided St. Lucie County 30 days written notice of FPUA's intention to discontinue service for non-payment by St- Lucie County with a right to cure- In the event of a dispute over the accuracy of a bill, St. Lucie County shall pay the non -disputed portion of the bill to FPUA and provide FPUA written notice detailing the reason for the disputed portion of the bill. FPUA shall not discontinue service for non-payment of the disputed portion of the bill- Disputes over billing accuracy that are not amicably resolved between the parties within 20 days of written notice to FPUA from St- Lucie County shall be resolved pursuant to the Dispute Resolution provisions set forth in Section 10 below_ g\iay\igrecmui.Te11m1Cp.a Ea42-9 7. North Hutchinson Island Service Agreement: Upon execution of this Agreement, the current North Hutchinson Island Bulk Utility Service Agreement between the County and FPUA ("NHI Bulk Service Agreement") shall be automatically terminated, and the Bulk Service Agreement shall take immediate effect forservice to North Hutchinson Island, subject to the following bulk water rate transition period; (1) for a period of two years from the date of this Agreement, the bulk water rate shall remain at the current rate charged by FPUA to the County under the NHI Bulk Service Agreement ("Current Rate')- (2) commencing at the end of the two year period, and on the same date for the next three years, the bulk water rate will be reduced by one quarter of the difference between the Current Rate and the bulk water rate for the same time frame as calculated under the Bulk Service Agreement (including any applicable incremental increases); (3) commencing at the end of fifth year, the bulk water rate shall be the same as the then current bulk water rate under the Bulk Service Agreement (including any applicable incremental increases). St. Lucie County shall pay no Capital Improvement Charges or impact fees for development that is existing (or fully permitted by St. Lucie County and FDEP) at the time of this Agreement and for a period of two years from the date of this Agreement. St. Lucie County shall pay capacity fees to FPUA for all development on North Hutchinson Island permitted after said two-year period. 8. Airport Properties Service Agreement: Upon execution of this Agreement, the existing water service agreements between FPUA and St. Lucie County for service to St. Lucie County's Airport Properties shall be automatically terminated and replaced by this Agreement. The parties agree that such termination shall be without prejudice to the separate annexation agreement which shall otherwise remain in full force and effect, and no party shall be deemed to have waived any right or entitlement under the annexation agreement or any objection to the annexation agreement by entering into this Agreement. The rates for. bulk service as set forth in this Agreement shall commence with the next billing cycle 30 day after the execution of this Agreement ("Changeover Date")- The rates for bulk service in the existing bulk water service agreement shall apply until the Changeover date. St_ Lucie County shall pay no Capital Improvement Charges or impact fees for the existing bulk service provided at the Changeover Date. St_ Lucie County shall pay capacity fees to FPUA for all development on St. Lucie County's Airport Properties permitted after the Changeover Date. 9- Term: The term of this Agreement shall be 30 years, and may be extended by the tional terms of 30 years which extension must be agreed upon on or before the 15" parties for 2 addi year of the initial term or an extension term, as applicable. Either party may terminate this agreement upon providing the other party 15 years written notice of termination; provided, however, that in the ice of termination is less than I S years, the term of this event the remaining term at the time of not Agreement shall be extended so that the Agreement will terminate in not less than 15 years. 10- Force Majeure: In the event that performance of this Agreement by either party to this Agreement is prevented or interrupted beyond the control of either party, including, but not limited to, act of God or the public enemy, war, national emergency, allocation or of other governmental restrictions upon the use or availability or labor or materials, rationing, civil insurrection, not. radical or civil rights disorder or demonstration, strike embargo, flood, tidal wave, fire, explosion, bomb detonation, nuclear fallout, windstorm, hum -cane, earthquake, or other casualty or disaster or catastrophe, failure or breakdown of pumping transmission or other facilities, governmental rules or acts or orders or restrictions orregulations ofrequirements, acts or action of any government orpublic or governmental authority or commission or board or agency or agent or official officer, the enactment of any statute or ordinance or resolution or regulation or rule or ruling or order, in order to decree or judgment or restraining order or injunction of any court, said party shall not be liable for such non- performance. 4-Vny�igr¢mm mtaloc\fpua-Ea4 Z-9 0 0 0 D c, m t— W . 11 _ Laws ofFlorida: This Agreement shall be governed by the laws of the State of Florida and it shall become effective immediately upon execution by both parties hereto, subject to any approvals which must be obtained from governmental authority, if applicable, and subject to all conditions precedent for the rendering of service as set forth in this Agreement. 12. Dispute Resolution: In the event either party to this Agreement is required to enforce this Agreement the following procedure shall be followed: 12.1 Prior to initiating any litigation between the parties, the initiating party shall provide a written notice to the non -initiating party of its intent to bring litigation together with a reasonably detailed description of the nature of the claim. Within ten (10) days of receipt of such notice, the parties shall schedule a pre -litigation mediation proceeding which meeting shall take place within twenty (20) days or such other time as the parties may agree to attempt to mediate an amicable resolution of the dispute. The parties shall cooperate with each other to select a mutually agreeable mediator. The cost of mediation shall be borne equally by each party. Mediation shall take place at the FPUA administrative complex. 12.2 Any controversy or claim arising out of or relating to this Agreement, or any breach thereof, that is not resolved through the mediation process specified in subsection 12.1, shall be resolved by binding arbitration, before a three member panel, in accordance with the rules then obtaining of the American, Arbitration Association_ Each party shall select one arbitrator and the two arbitrators so selected shall select a third arbitrator- The third arbitrator must have experience in the water and wastewater utility operations and management business. Arbitration shall take place at the FPUA's administrative complex. Any judgment upon the award rendered may be entered in any court having jurisdiction. The cost ofarbitration shall be borne equally by each party- Each party shall bear its own attorneys fees and costs arising out of any mediation and arbitration. MISCELLANEOUS PROVISIONS 13. Whenever the singular number is used in this Agreement and when required by the context, the same shall include the plural, and the masculine, feminine and neuter genders shall each include the others- 14- Exhibits mentioned in this Agreement are hereby incorporated herein by reference and made a part hereof as fully set forth herein_ 15. This Agreement may be executed in several counterparts, each of which shall be deemed an original and such counterparts shall constitute one and the same instrument. 16- No agreement shall be effective to add to, change, modify, waive or discharge this Agreement, in whole or in part, unless such agreement is in writing and signed by the parties hereto. In the event that any non -material provision of this Agreement is determined to be of no force and effect. by a court of law, such provision shall be severed from this Agreement and the remaining Agreement shall continue in full force and effect. 17- Whenever approvals of any nature are required by either party to this Agreement, it is agreed that same shall not be unreasonably withheld or delayed. 18. Within sixty days of execution of this Agreement, St_ Lucie County shall provide FPUA with a 5-year projection of bulk water and wastewater demands at all connection points. St. Lucie County shall update the 5-year projection annually thereafter during the term of this Agreement. glittylzycc tintMb \rpw Ex4 2-9 0 z+ CD 0 0 ►1 3D M m t— CO L.J U_ At least annually, FPUA shall also provide the City of Fort Pierce a written report analyzing the extension of facilities, services and capacities required of it under this Agreement. 19. In the event that during the term of this Agreement, St. Lucie County elects to construct water or wastewater treatment capacity for new development not already served under this Agreement, then St. Lucie County shall provide FPUA with 5 years prior notice of such construction. Such construction may not replace existing demand on FPUA's bulk supply (unless such notice is accompanied by a notice of termination of this Agreement, in which event the constructed capacity may not be used to replace existing demand on FPUA's bulk supply until the effective date of the termination of this Agreement). 20. During the term of this Agreement, SL Lucie County shall not reduce the number of ERC's of water and wastewater service utilized under this Agreement and furnish those St. Lucie County Customers with water and wastewater service from another source, including one owned and operated by St. Lucie County (provided the County may continue to provide water and wastewater service from its existing water and wastewater facilities until the current capacity of those existing systems is fully utilized). This requirement shall allow, however, for normal fluctuations in water and wastewater demand. 21_ During the term ofthis Agreement, FPUA shall be the exclusive bulk service provider to St. Lucie County within Area B, subject to the following conditions: (1) to the extent that FPUA denies a Service Request from St- Lucie County, St_ Lucie County may meet such Service Request from another source, including one owned and operated by St- Lucie County; (2) to the extent that St. Lucie County currently receives bulk utility service from the City of Port St- Lucie for the Okeechobee Road corridor, St. Lucie County may continue such bulk service but only to the extent of capacity reserved as of the date of this Agreement as set forth on Attachment A to this Agreement; and (3) to the extent that St. Lucie County secures emergency interconnections with other utility systems and utilizes such emergency interconnections for temporary or emergency service needs. 22. St. Lucie County's retail customers in the bulk water service areas will be subject to the same water use restrictions as may be imposed on FPUA's retail customers under emergency conditions_ IN WITNESS WHEREOF, the parties hereto have made and executed this Agreement on the respective dates under each signature: ATTEST: Pg'"P'A Secretary g:lanylagrccmnrimcrloclfpua-U4 2-9 FORT PIERC T TIES AUTHORITY By: .. .. V . _ Chairman APPROVED AS TO FORM AND CORRECTNESS: By: VA,- FPUA General Cou sel BOARD OF COUNTY CO ST. LUCIE C UNTY, FLO. By:: Chairman MMISSIONER, F c 0 0 r 2> m t-•- m g:lany\agrcemntiMalockfpu EA 2-9 BOARD OF COUNTY COMMISSIONERS Heather Young Katherine Mockenzie-Smith Victoria Winfield March 11, 2005 Fort Pierce Utilities Authority 206 South Sixth Street Post Office Box 3191 Fort Pierce, Florida 34948 COUNTY ATTORNEY Daniel S. McIntyre , ASSISTANT COUNTY ATTORNEY. ASSISTANT COUNTY ATTORNEY ASSISTANT COUNTY ATTORNEY RE: Agreement for Bulk Water, Wastewater, and Reclaimed Water Service Gentlemen: Please note that pursuant to Paragraph 19 of the Agreement for Bulk Water, Wastewater and Reclaimed Water Service, St. Lucie County is providing the Fort Pierce Utility Authority with five (5) years prior notice of the County's election to construct water, wastewater and reclaimed water treatment capacity for new development not already served under the Bulk Agreement. DMA/caf Copy to: Board of County Commissioners Utility Services Director County Attorney City Manager VSincerel -derson County Administrator JOSEPH E. SMITH, District No. 1 • DOUG COWARD. District No. 2 - PAULA A. LEWIS. D'rsrrict No. 3 • FRANNIE HUTCHINSON. Distric No.'4 • CHRIS CRAFT, District No. 5 County Administrator - Douglas M. Anderson 73(]0 Virginia Avenue • 3rd Floor Admin. Annex • Fort Pierce, FL 34982-5652 • Phone (772) 462-1441 FAX (772) 462-1440 • TDD (772) 462-1428 , AGREEMENT OF TRANSFER BY AND BETWEEN ST. LUCIE COUNTY (the "County") CITY OF PORT ST. LUCIE (the "City") TABLE OF CONTENTS Page ARTICLE I - CERTAIN DEFINITIONS . . . . . . . . . . . . . . . . . 3 ARTICLE II - EXHIBITS . . . . . . . . . . . . . . . . . . . . . . . .9 ARTICLE III - TRANSFER OF UTILITY SYSTEMS; CITY'S . . . . . . . . 16 ASSUMPTION OF CERTAIN LIABILITIES AND EMPLOYEES . 3.1 Transferred Assets . . . . . . . . . . . . . . . . . . . 16 3.2 Excluded Assets . . . . . . . . . . . . . . . . . . . . . 19 3.3 Condition and Transfer of Transferred Assets . . . . . . 20 at Closing 3.4 Risk of Loss . . . . . . . . . . . . . . . . . . . 21 3.5 Assumption of Certain Liabilities . . . . . . . . . . . . 22 3.6 Employees . . . . . . . . . . . . . . . . . . . . 22 3.7 Substitution of Parties in the Case . . . . . . . . . . . 23 ARTICLE IV - TITLE; SURVEYS AND CLOSING . . . . . . . . . . . . . . 24 4.1 Evidence of Title . . . . . . . . . . . . . . . . . . . . 24 4.2 Status of .Title . . . . . . . . . . . . . . . . . . . . . 24 4.3 Surveys . . . . . . . . . . . . . . . . . . . . . . . . . 25 4.4 Closing . . . . . . . . . . . . . . . . . . . . . . . . . 26 ARTICLE V - COVENANTS OF THE PARTIES . . . . . • . . • . . • . . . 28 5.1 Investigation and Access . . . . . . . . . . . . . . . . 28 5.2 Regular Course of Business of County Utilities . . . . . 28 5.3 Pre -Closing Operations of the Utility Systems . . . . . . 29 5.4 Post -Closing Operations of the Utility Systems . . . . . 30 5.5 Insurance . . . . . . . . . . . . . . . . . . . . . . . . 33 5.6 Sale of Utility Systems . . . . . . . . . . . . . . . . . 34 5.7 Surcharges . . . . . . . . . . . . . . . . . . . . . . . 34 5.8 Issuance of Bonds by City . . . . . . . . . . . . . . . . 35 5.9 Negotiation with GDU . . . . . . . . . . . . . . . . . . 35 5.10 Surplus . . . . . . . . . . . . . . . . . . . . . . . . . 36 5.11 Service Areas . . . . . . . . . . . . . . . . . . . . . . 36 ARTICLE VI - CITY'S REPRESENTATIONS . . . . . . . . . . . . . . . . 37 ,1 6.1 Organization . . . . . . . . . . . . . . . . . . . . . . 37 6.2 Validity of Agreements . . . . . . . . . . . . . . . . 37 6.3 Litigation . . . . . . . . . . . . . . . . . . . . . . . 37 6.4 Brokers . . . . . . . . . . . . . . . . . . . . . . . . 38 6.5 Accuracy of Information . . . . . . . . . 38 -i- Page ARTICLE VII - COUNTY'S REPRESENTATIONS . . . . . . . . . . . . . 38 . . . . 7.1 Organization . . . . • • • • • • • • • • . . . . 38 7.2 Validity of Agreements . . . . . . . . . . . . . . . 39 7.3 Litigation . . . . . . . . . . . . . . . . . 39 7.4 Brokers . . . . . . . . . . . . . . . 40 7.5 Exhibits 40 7.6 Accuracy of Information . . . . . . . . . . . . . . 40 ARTICLE VIII - INDEMNIFICATION . . . . . . . . . . . . . . . . . 40 8.1 Indemnification . . . . . . . . . . . . . . . . . . . . . . 43 8.2 Method of Asserting Claims . . . . . . . . . . . . . ARTICLE IX - CONDITIONS TO OBLIGATIONS OF THE COUNTY . . . . . . . 47 . . 47 9.1 9.2 Performance . . . ... . . . . . . . . . . . . . Representations True as of Closing . . . . . . . . . . . 48 48 9.3 Absence of Litigation . . .. . . . . . . . . . . . . 49 9.4 Governmental Action and Consents . . . . . . . . • • • . . 49 9.5 City Action . . . . . . . . . . . . . . . . . . . . 49 9.6 Opinion of City Attorney . . . • • • • • • • • • . . ARTICLE X CONDITIONS TO OBLIGATIONS OF CITY . . . . . . . . . . . 51 10.1 Performance 51 10.2 Representations True as of Closing . . . . . . . . . . . 51 10.3 Absence of Litigation . . . . . . . . . . . . . . . . . . 52 10.4 Governmental Action and Consents . . . . . . . . . . . . 52 10.5 County Action . . . . . . . . . . . . . . . . . . . . . . 53 10.6 Opinion of County's Counsel . . . . . . . . . . . . . . . 53 ARTICLE XI - MODIFICATION, WAIVERS AND TERMINATION . . . . . . . . 55 11.1 Modification . . . . . . . . . . . . . . . . . . . . . . 55 11.2 Waivers . . . . . . . . . . . . . . . . . . . . . . . . 55 11.3 Termination . . . . . . . . . . . . . . . . . . . . . . . 55 11.4 Limitation on Liability . . . . . . . . . . . . . . . . . 57 ARTICLE XII - NOTICES . . . . . . . . . . . . . . . . • . • • • . . 58 12.1 Procedure 58 12.2 Changes of Address . . . . . . . . . . . . . . . . . . 59 Page ARTICLE XIII - MISCELLANEOUS . . . . . . . . . . . . . . . . . . 59 13.1 Gender and Numbers . . . . . . . . . . . . . . . . . . . 59 13.2 Further Assurances . . . . . . . . . . . . . . . . . . . 59 13.3 Non -Assignment . . . . . . . . . . . . . . . . . . . . . 59 13.4 Waiver . . . . . . . . . . . . . . . . . . . . . . . . . 60 13.5 Counterparts . . . . . . . . . . . . . . . . . . . . . . 60 13.6 Entire Agreement . . . . . . . . . . . . . . . . . . . . 60 13.7 Governing Law . . . . . . . . . . . . . . . . . . . . 61 13.8 Integration . . . . . . . . . . . . . . . . . . . . . . 61 13.9 Time of Essence . . . . . . . . . . . . . . . . . . . . 61 13.10 Disclaimer of Third Party Beneficiaries . . . . . . . . 61 13.11 Radon Gas Notification . . . . . . . . . . . . . . . . . 61 13.12 Construction . . . . . . . . . . . . . . . . . . . . . . 62 13.13 Severability . . . . . . . . . . . . . . . . . . . . . . 62 13.14 Attorneys' Fees and Other Costs . . . . . . . . . . . . 62 13.15 Termination of Interlocal Agreement . . . . . . . . . . 62 13.16 Survival . . . . . . . . . . . . . . . . . . . . . . . 62 AGREEMENT OF TRANSFER THIS AGREEMENT OF TRANSFER, dated as of this 28th day of June, 1994, by and between ST..LUCIE COUNTY, FLORIDA, a political subdivision of the State of Florida (the "County"), and CITY OF PORT ST. LUCIE, FLORIDA, a municipality organized under the laws of the State of Florida (the "City"). W I T N E S S E T H: WHEREAS, the County currently owns and operates a separate and distinct department known as "St. Lucie County Utilities Services Department", which department is defined hereinbelow as "County Utilities", currently operates certain water pumping, treatment, storage and distribution systems; certain sanitary sewage collection, treatment, transmission and disposal systems; and certain propane gas systems; which are all hereinafter more particularly defined and collectively referred to as the "Utility Systems"; and WHEREAS, the Utility Systems currently serve and are available in the future to serve certain territory within the boundaries of the City; and WHEREAS, the County has commenced condemnation proceedings and thereby has acquired certain assets of the Utility Systems through condemnation in accordance with Florida law, which Case (as hereinafter defined) is pending in the Fourth -District Court of Appeal; and WHEREAS, the City has requested the County to transfer the Utility Systems to the City; and WHEREAS, the parties hereto have previously entered into an Interlocai Agreement concerning the acquisition, maintenance, operation and expansion of the Utility Systems; and WHEREAS, the parties hereto desire to transfer all of the assets which comprise the Utility Systems, and all the liabilities pertaining thereto, from the County to the City, subject to the terms and conditions of this Agreement; and WHEREAS, pursuant to the provisions of Section 180.06, Florida Statutes (1993), the City is authorized to provide a water supply for domestic, municipal, industrial or other uses, and to provide for the collection, treatment and disposal of sewage, including wastewater reuse, and other liquid wastes, and to construct, operate and maintain propane gas plants and distribution systems for domestic, municipal, industrial and other uses; and WHEREAS, the County has determined, after properly advertised public hearing, and after consideration of those factors set forth in Section 125.3401, Florida Statutes (1993), that transfer of the Utility Systems from the County to the City would be in the public interest; and WHEREAS, the City has determined, after properly advertised public hearing, and after consideration of those factors set forth in Section 180.301, Florida Statutes (1993), that the transfer of the Utility Systems from the County to the City would be in the public interest; and WHEREAS, the County and the City desire to enter into this Agreement under the terms of which (i) the City will be substituted as a party for the County in the Case, and complete the acquisition of the Utility Systems and assume all liability for the Case, and the City will E acquire from the County all of the County's right, title and interest in and to those certain properties and assets of the County hereinafter described which constitute the Utility Systems, and (ii) upon completion of such acquisition, the City will assume all obligations and liabilities of the County which relate to the Utility Systems, all as hereinafter provided. NOW, THEREFORE, for and in consideration of the premises and the mutual agreements hereinafter set forth, the City and the County hereby agree as follows: ARTICLE I CERTAIN DEFINITIONS 1.1 The following terms shall have the following meanings when used herein: Agreement. "Agreement" shall mean this Agreement of Transfer, together with all Exhibits attached hereto. Case. "Case" shall mean that certain case in the Circuit Court of the Nineteenth Judicial Circuit of Florida, in and for St. Lucie County, Civil Action, Case No. 90-267-CA-30, entitled "St. Lucie County, Florida, Petitioner, vs. General Development Utilities, Inc., et al., Defendants (collectively, "GDU")" and any appeals relating thereto. City. "City" shall mean the City of Port. St. Lucie, a municipal government. Ci y's Bond Counsel. "City's Bond Counsel" shall mean Squire, Sanders and Dempsey. 3 City's Counsel. "City's Counsel" shall mean the Port St. Lucie City Attorney, or such other firm as the City shall designate in writing to the County. Closing. "Closing" shall mean the consummation of the transaction contemplated by this Agreement, as more particularly set forth in Section 4.4. County. "County" shall. mean St. Lucie County, a political subdivision of the State of Florida. County Is Counsel. "County's Counsel" -shall mean the St. Lucie County Attorney. County Utilities. "County Utilities" shall mean the department of the County now operating the Utility Systems in the Service Areas. Defeasance Opinion. "Defeasance Opinion" shall mean the opinion of Squire, Sanders and Dempsey, Jacksonville, Florida, in substantially the form attached hereto as Exhibit "V". Developer. "Developer" shall mean any property owner, builder or other prospective consumer of water and sewer services with respect to identified parcels of real property which have a designated or anticipated need for water and sewer connections from the Utility Systems. Developer Agreements. "Developer Agreements" shall mean those agreements which provide for payments to be made to the County or County Utilities in exchange for gas, water or sewer services, whether now being provided or to be provided in the future to Developers. Employees. "Employees" shall mean those County employees who work for the County in the construction, operation, maintenance and/or repair 4 of the Utility- Systems, all of whom are identified in Exhibit "H" hereto. Gas Systems. "Gas Systems" shall mean all Plant and Other Facilities (as hereinafter defined) related to providing propane gas, owned by the County and/or operated by County Utilities, including but not limited to, the Real Property and Property Interests on which certain portions of the Gas Systems are located, which serve existing customers of the Gas Systems or are available to serve prospective customers in the Service Areas and which are to be transferred to the City pursuant to this Agreement. Interconnect Agreements. "Interconnect Agreements" shall mean interconnect or interlocal agreements between the County and other governing bodies providing for the receipt and/or delivery of services, by or to the Utility Systems-. Outstanding County Bond -Issues. "Outstanding County Bond Issues" shall mean the aggregate outstanding principal obligation in the amount of $75,190,000.00, which amount consists of (i) $14,345,000.00 representing the undefeased portion of St. Lucie County, Florida, $64,035,000.00 Utility System Revenue Bonds, Series 1990, and (ii) St. Lucie County, Florida, $60,845,000.00 Utility System Refunding and Revenue Bonds, Series 1993. Permitted Encumbrances. "Permitted Encumbrances" shall mean, with respect to the Real Property and the Property Interests, the following: (a) All applicable present building restrictions, zoning regulations and all applicable laws, ordinances, resolutions, regulations and orders of any governmental authority having jurisdiction 5 over the Real Property, the Property Interests and use or occupancy thereof; provided same do not prevent or hinder the present or intended use of the Real Property and/or the Property Interests. (b) The lien of all property taxes and assessments, special or other, for the calendar year in which the Closing takes place and thereafter. (c) The easements, restrictions, reservations, grants, rights -of -way, covenants, conditions and limitations set forth in the Public Records of St. Lucie County (excluding liens, judgments and mortgages) that do not impair, restrict or inhibit the present or intended use of or improvement to the Real Property or the Property Interests as permitted by applicable zoning and land use regulations presently in effect and that are not coupled with a forfeiture or reversionary provision. (d) The Case. Personal Property. "Personal Property" shall mean the property listed in Exhibit "G" hereto. Property Interests. "Property Interests" shall mean all public and private easements, prescriptive rights, rights -of -way, licenses, reservations, leases, consents and other use rights, interests and privileges which are appurtenances to the Real Property or otherwise benefit the County and which constitute less than fee simple estates in land owned or used by the County for the construction, reconstruction, installation, operation and maintenance of the Utility Systems and which are described in Exhibit "F". Plant and Other Facilities. "Plant and Other Facilities" shall mean all propane gas storage, transmission and distribution facilities, all water rights, wells, raw water sources, water production, treatment plant, storage, transmission, distribution, pumping, and other water facilities, all wastewater treatment plant, wastewater and/or sanitary sewer collection, transmission, pumping, reuse and disposal facilities of every kind and description whatsoever, including without limitation, all trade fixtures, leasehold improvements, storage tanks, lift stations, force mains pumps, pump stations, generators, controls, collection and transmission pipes or facilities, valves, meters, service connections, and all other water, wastewater and/or gas service connections, and all other water, wastewater and/or gas physical, general plant and/or other facilities and property installations in use in connection with the operation of the Utility Systems. . Real Property. "Real Property" shall mean the real property described in Exhibit "D". Service Areas. "Service Areas" shall mean those areas served, or which may be served, by the Utility Systems and delineated on Exhibit "L" hereto; provided, however, before any of the water and/or sewer service is extended beyond the boundaries of the Service Areas shown on Exhibit "L", consent of both parties must be obtained. Notwithstanding the forgoing, service currently being provided beyond the boundaries of the Service Areas, whether pursuant to an existing Developer Agreement or otherwise, shall not require consent. In the event service is provided, the provisions of Section 5.4 shall apply. 7 Sewage Systems. "Sewage Systems" shall mean all Plant and Other Facilities related to providing wastewater and/or sanitary sewer services, owned by the County and/or operated by County Utilities, including but not limited to, the Real Property and Property Interests on which certain portions of the Sewage Systems are located, which serve existing customers of the Sewage Systems or are available to serve prospective customers in the Service Areas and which are to be transferred to the City pursuant to this Agreement. Third Party Warranties. "Third Party Warranties" shall mean all third party warranties respecting completed or in -progress construction work or other property owned by the County and/or operated by County Utilities, as well as all payment and performance bonds, whether pursuant to Section 255.05, Florida Statutes, or otherwise. Transfer Cost. "Transfer Cost" shall mean the amounts described in Section 4.4(a). Transferred Assets. "Transferred Assets" shall mean the properties and assets described in Section 3.1. Trustee. "Trustee" shall mean the party named as Trustee in the Escrow Agreement. Uniform Extension Policy. "Uniform Extension Policy" shall mean the policies adopted by resolution of the City Council, and any reference herein shall mean from and after its date of adoption. Utility Systems. "Utility Systems" shall mean the combination of the Plant and Other Facilities constituting the Water Systems, Sewerage Systems and Gas Systems which are presently owned by the County and/or operated by County Utilities, which serve existing customers of the utility Systems or are available to serve prospective customers in the Service Areas, and which are to be transferred to the City pursuant to this Agreement. Verification Report. "Verification Report" shall mean the opinion and report, in substantially the form"of that set forth in Exhibit "AA" attached hereto, of a nationally recognized certified pubic accounting firm selected by the City or its bond underwriter. Water Systems. "Water Systems" shall mean all Plant and Other Facilities related to providing water, owned by the County and/or operated by County Utilities, including, but not limited to, the Real Property and Property Interests on which certain portions of the Water Systems are located, which serve existing customers of the Water Systems or are available to serve prospective customers in the Service Areas and which are to be transferred to the City pursuant to this Agreement. ARTICLE II EXHIBITS 2.1 Subject to the provisions of Section 7.6, there are attached to this Agreement as Exhibits "A" through "FF", certain lists and documents which contain information, representations and covenants of the County or the City which are integral and essential parts of the transaction described in this Agreement and which are hereby incorporated by reference into this Agreement, and are as follows: Exhibit "A": Certain plans and specifications showing the water treatment plants, sewage treatment plants and propane gas facilities of the Utility Systems as now constructed (as -built), together with certain maps showing the water distribution lines, sewage collection lines and C lift stations and appurtenances as now constructed, and all other material Plant and other Facilities constituting the Utility Systems, in each case to the extent same are available. Exhibit "B": A schedule which lists and incorporates by reference (1) all Developer Agreements which are known to, or are in the possession of, the County now, and as updated through the Closing; and (ii) a specific listing of third party refunds, including all (a) refundable advances and (b) obligations of the County to third parties. The County shall provide, as to the third party refunds, documentation showing the amount of funds collected and interest thereon and documentation relating to the future collection of funds (if not set forth in Developer Agreements) and the status of such documentation. Exhibit "C": A schedule listing, and copies of, all other agreements entered into between the County and_ other parties which would, or might be considered to, constitute material contractual obligations of the County and are not set forth on other Exhibits to this Agreement, including but not limited to, contracts for capital construction for the Utility Systems. In addition, an accounting of each contract showing the contract sum and amount expended to date shall be provided and such accounting shall be updated as of the Closing Date. Exhibit "D": Exhibit "D" sets forth the legal description of all of the Real Property to be conveyed by the County to the City. Exhibit "E": A list of all surveys of the Real Property and the Property Interests in the possession of the County. The County has delivered or will deliver to the City originals or sealed copies of all 10 surveys in the possession of the County relating to the Real Property and the Property Interests. Exhibit "F": A listing of all Property Interests, together with the legal description of same. Property Interests located or shown in recorded plats and Property Interests in the nature of rights to locate lines in dedicated public easements and rights -of -way need not be included in this Exhibit,_but shall be included if identifiable. Exhibit "G": A listing of all tangible Personal Property with a value in excess of One Hundred Dollars ($100.00), including but not limited to, all equipment, vehicles, tools, parts, laboratory equipment, office equipment and other personal property used in any way in the operation of the Utility Systems which is to be conveyed by the County to the City and inventory lists for fiscal years 1991/1992 and 1992/1993. The listing of tangible Personal Property will be updated as of the Closing. Exhibit "H" : A listing of all Employees as of the date of this Agreement, together with pertinent information regarding their employment by County Utilities-, including but not -limited to, years of service and accrued leave balances. This Exhibit will be updated as of Closing. Exhibit "I": Copies of all current permits, applications or other documents, together with effective dates and expiration dates thereof (if any), as evidence of approval of the Plant and Other Facilities of the Utility Systems by all necessary governmental authorities, including, but not limited to, fa) the Florida Department of Environmental Protection or the regulatory predecessor of such agency, 11 (b) the South Florida Water Management District, and (c) the Florida Department of Health and Rehabilitative Services. At Closing, the originals, if available, of all current permits, applications or other documents will be delivered to the City. Exhibit "J": This Exhibit consists collectively of: (i) Exhibit "J-111, which lists all accounts receivables due from customers of the County Utilities relating to the Utility Systems, identifying such receivables byy customer and accountnumber, dated within thirty (30) days of the date of this Agreement, (ii) Exhibit "J-2", which lists all Customer deposits by name and account number, setting forth the amount of each individual deposit and the aggregate total thereof, dated within thirty (30) days of the date of this Agreement, and (iii) Exhibit "J-3", which lists all prepaid connection or other fees for which the potential customer has not yet connected to the Utility Systems and/or been billed. Exhibit "J" shall, at Closing, be updated to within five (5) days of the Closing Date. Exhibit "K": The form of Escrow Agreement to be executed by the County, the City and the Trustee holding the funds from the issuance of bonds by the City sufficient to defease the Outstanding County Bond Issues. Exhibit "L": A map designating the Service Areas. Exhibit "M": A copy of the certified financial statements for County Utilities for the fiscal years ending September 30, 1991, September 30, 1992, and September 30, 1993, and Official Bond Statements for the Outstanding County Bond Issues. In addition, the County will provide to the City unaudited financial statements for the current 12 fiscal year through the Closing Date. Exhibit "M" shall also include an accounting of all fund balances, bond fund balances and other contributory funds for the Utility Systems deposited in accounts held by the County, Clerk of the Circuit Court of St. Lucie County or by other institutions. Exhibit "N": Reproducible copies of the plans and specifications of all water distribution and sewer collection and reuse lines and/or lift stations and raw water'supply facilities under construction as of the date of this Agreement. This Exhibit will be updated through the Closing Date to add Plant and Other Facilities upon which construction commenced after the date of this Agreement and shall be updated again when such Plant and Other Facilities are finally completed. Exhibit "O": A schedule of the Third Party Warranties, together with copies of documentation evidencing same. Exhibit "P The form of the "Deed of Transfer" to be.executed and delivered by the County to the City at Closing. Exhibit "O": Listing of computer system equipment and software packages, license and maintenance agreements thereon, which the City shall assume at Closing. Exhibit "R": The form of the Assignment and Assumption Agreement to be executed at the Closing by the County and the City, whereby the County assigns to the City and the City assumes from the County, the County's obligations to vendors, suppliers, contract haulers and others relative to the ordinary course of business operations of the Utility Systems. 13 Exhibit "S": The form of the agreement to be executed at Closing by the County and the City under which the City shall assume the County's obligations set out in Exhibit "B" hereto including the payment of "refundable advances". Exhibit "T": The form of the agreement to be executed at Closing by the County and the City under which the City shall be substituted as a party and assume the County's rights and obligations for the completion of the Case, and any other litigation, proceedings, claims and/or actions regarding the acquisition of the Utility Systems from GDU, through eminent domain proceedings; including, but not limited to, sole, full and complete legal and financial responsibility to pay full compensation to GDU, or to receive any overpayment from GDU, as finally determined by negotiation or by litigation. Exhibit "U": The form of the "Fee Simple Deed" to be executed and delivered by the County at Closing. Exhibit "W : The form of Defeasance Opinion. Exhibit "W": The lease to be executed by the County and the City at the Closing covering the present County Utilities' administrative offices, in form and content, and for a term, reasonably acceptable to the parties hereto. Exhibit "X". Deleted prior to execution. 14 Exhibit "Y": For disclosure purposes only, a list of all liabilities, whether actual or contingent (pending or threatened), known to the County to which the City may be subject as a result of the transfer of the Utility Systems from the County to the City. Exhibit "Z For disclosure purposes only, a schedule listing all notices regarding regulatory violations and/or pending regulatory enforcement proceedings, or those conditions identified by outside consultants and/or Employees, together with documentation supporting same, which with the passage of time would constitute a defect, deficiency or regulatory violation or would or could result in enforcement proceedings, relating to, affecting or that may relate to, or affect the Transferred Assets, within the knowledge of the County. This Exhibit will be updated at Closing. Exhibit "AA": The form of Verification Report. Exhibit "BB": Deleted prior to execution. Exhibit "CC": Deleted prior to execution. Exhibit "DD": The form of Assignment and Assumption Agreement to be executed by the City and the County with regard to transferring the Property Interests. Exhibit "EE": The form of opinion to be given by City's Bond Counsel with regard to -the verification of the City's municipal bonds and this Agreement. Exhibit "FF": A listing of the Interconnect Agreements. Notwithstanding anything to the contrary contained herein, the Exhibits shall be updated as necessary prior to Closing based on 15 information coming to the attention of the City and County subsequent to the date hereof. ARTICLE III TRANSFER OF UTILITY SYSTEMS; CITY'S ASSUMPTION OF CERTAIN LIABILITIES AND EMPLOYEES 3.1 Transferred Assets. Subject to the terms and conditions herein stated, the County hereby agrees to convey, assign and transfer to the City, and the City hereby agrees to accept from the County on the Closing Date for the consideration set forth in Article IV, all of the properties and assets of the County relating to the Utility Systems, including but not limited to, the following: (a) The Real Property and the Property Interests, subject only to the Permitted Exceptions. (b) The Utility Systems. (c) All accounts receivable as set forth in Exhibit "J-1"; provided, however, that the County shall furnish to the City, at least three (3) business days prior to Closing, a revised copy of Exhibit "J- 1", which shall contain a listing of its accounts receivable identified by customer and individual account as of the date not more than five (5) business days prior to the Closing Date. (d) All interest of the County in and to (i) all utility franchises of every character whatsoever and all certificates, immunities, privileges, permits, licenses, license rights, consents, grants, ordinances and Interconnect Agreements including, but not limited to, those between the County and the St. Lucie West Utility System, the Martin County Utility System and the Fort Pierce Utility 16 Authority, to construct, maintain and operate the Utility Systems within the existing Service Areas and every right of every character whatever in connection therewith; (ii) all agreements for the supply of water to Utility Systems; and (iii) all water rights, flowage rights, and riparian rights, and all renewals, extensions, additions or modifications of any of, the foregoing. Upon Closing, this Agreement shall operate as an assignment of all such rights, it being agreed, however, that at the City's request, the County shall execute or cause to be executed written assignments of such rights. (e) The items of tangible Personal Property listed in Exhibit "G" attached hereto. (f) To the extent available and allowable by law, all past and current customer records, billings, books, prints, plans, engineering reports, studies, investigations, surveys, specifications, shop drawings, equipment manuals,. files, including but not limited to Employee personnel files, and all other information reasonably required by the City in the possession of or available to the County (including, but not limited to, work product of its agents) and/or its agents on the Closing Date pertaining to the operation of the Utility Systems (specifically including copies of all files, including but not limited to work product therein (if available), pleadings, memorandums, correspondence, opinions, transcripts, documents and products of discovery and all other items relating to the Case, in the possession of third party professionals, consultants, attorneys or contractors). ( g) To the extent available, two ( 2 ) sets of record drawings, including as -built drawings when available, in respect of all facilities 17 of the Utility Systems as set forth in Exhibit "A" and Exhibit "N" attached hereto. Such drawings shall also include any original tracings, sepias or other reproducible material where same is in possession of the County. (h) All connection charges and net guaranteed revenues payable after the date of this Agreement as well as all unexpended connection charges, net guaranteed revenues and any other funds paid to County Utilities prior to the date of this Agreement for services .not yet delivered to the extent not yet spent. (i) All Developer Agreements. (j) The present County Utilities' telephone number and post office box. (k) All unexpended accumulated funds and financial assets of County Utilities or the County relating to the Utility Systems, including but not limited to, prepayments for services, cash reserves, unexpended rates, invested assets attributable to operations of the Utility Systems, debt services, restricted assets, collected customer deposits, cash and interest earned thereon, investments and interest related to customer deposits, operational petty cash, all unexpended bond proceeds, payments in lieu of taxes transferred to the general fund of the County, all of the foregoing having been collected or accrued or attributable to the County's operation of the Utility Systems, and allocated but unaccrued overhead relating to the balance of the current fiscal year, as of the Closing Date. It is the intention of zne uounLy and the City that the Utility Systems operate on a cash basis during the fiscal year that Closing takes place for the purposes of this Agreement. m (For example, if the Closing is effective as of the start of the twelfth (12th) month of the fiscal year, the County will deliver to the City at Closing all prepaid funds attributable to the twelfth (12th) month. If the Closing is effective on a date other than at the beginning of a month, the funds will be prorated accordingly.) (1) All Third Party Warranties. (m) Any and all legal rights, remedies or choses in action accruing to the County relating. to its ownership and/or operation of the Utility Systems, whether now existing or hereafter arising, specifically including, but not limited to, any rights arising from certifications made by any engineer or other professional to the County concerning the construction of Plant and Other Facilities or the operation of the Utility Systems. 3.2 Excluded Assets. (a) There are assets of the County excluded from the .assets and properties of County Utilities to be transferred to and accepted by the City pursuant to this Agreement, and the term "Transferred Assets" shall not mean or include any asset or property not included in Paragraph 3.1, including but not limited to the following: (i) Cash or bank accounts of the County which are the County's sole property, unrelated to the Utility Systems and not subject to refund to customers, including Developers or others. (ii) All property and equipment of the County which is not listed on Exhibits "A" through "J" attached hereto. (b) In the event that the City determines, at any time subsequent to the date of this Agreement, that a parcel of land, an interest in property less than a fee simple estate, an item of tangible M] personal property in excess of One Hundred Dollars ($100.00) or funds exist that should have been included as a Transferred Asset hereunder, the City agrees to promptly notify the County, and the parties hereto agree to enter into good faith discussions to determine whether or not such excluded asset(s) should have been transferred to the City. If it is determined that such excluded asset(s) should have been transferred to the City, the County shall transfer same to the City as soon as possible. -3.3 Condition and Transfer of Transferred Assets at Closing. (a) The parties hereto agree that the City is -accepting the Transferred Assets in their "AS IS" and "WHERE IS" condition, without relying upon any warranty or representation from the County regarding the Transferred Assets, except that all tangible Personal Property used to operate and/or maintain the Utility Systems is, or as of the Closing Date, will be physically located with the Utility Systems and will be transferred to the City. The County makes no warranties of any kind, either with respect to the Transferred Assets or otherwise and no such representation or warranty, whether oral or written, may be relied upon by the City in connection with the transactions to be consummated pursuant to this Agreement, and the City specifically represents that it is not relying on representations of the County. The County shall assign to the City at Closing all of the right, title and interest the County may have in all engineering and architectural specifications, engineering studies, planning documents, tests, licenses and permits (if assignable), investigations and surveys relating to the Transferred Assets (hereinafter referred to as the "planning documents") the County may have, but such assignment shall be with the express reservation that 20 the County shall have no responsibility to the City for the accuracy, correctness or completeness of any of the matters contained therein. Likewise, as to the lease of other personal properties and other assets that the County is now utilizing and with respect to which the City intends to continue to use, all rights therein shall be transferred to the City "AS IS" and "WHERE IS" without representation or warranty, by or from the County, express or implied, as to the condition, location or fitness of purpose of such lease or other properties or assets, except that tangible Personal Property used to operate and/or maintain the Utility Systems is, or as of the Closing Date, will be physically located with the Utility Systems and be transferred to the City. (b) The County shall deliver to the City on the Closing Date possession of the Transferred Assets. At the Closing, and without further consideration, the County will execute and deliver such further instruments of conveyance and transfer and take such other action as the City may reasonably request, the more effectively to convey and transfer to the City any of the Transferred Assets. (c) The acceptance by the City of the conveyance and transfer of title to the Real Property, Property Interests and Personal Property at the Closing Date shall be deemed conclusive evidence of the acceptability to the City of the County's title to the'Real Property, Property Interests and Personal Property. 3.4 Risk of Loss. If any portion of the Transferred Assets is damaged by fire, act of God or other casualty before the Closing Date, the City shall have the option of (a) taking the Transferred Assets as is, together with the County's assignment to the City of all rights 21 under the County's insurance policies and all of the insurance proceeds, if any;. or (b) terminating this Agreement consistent with the provisions of Section 11.3(f). - 3.5 Assumption of Certain Liabilities. As of the Closing Date, the County shall assign to the City, and the City shall assume and agree to perform and discharge, all duties, liabilities and obligations of the County as specifically set forth in this Agreement including but not limited to the Case. Notwithstanding the foregoing and any other language in (i) this Agreement, (ii) the documents referenced herein, or (iii) any document to be executed by the City as contemplated In this Agreement, any reference to an obligation (even if such reference shall specifically state the City shall assume such obligation) shall not act to reimpose or revive any obligation that does not exist at the time of the execution of this Agreement, specifically including but not limited to any obligation of or agreement by GDU or General Development Corporation to provide water and sewer services. 3.6 Employees. The City shall offer employment to all Employees employed as of the Closing Date, at their now current salaries, as of a mutually convenient time on or about the Closing Date, for a minimum of one (1) year from the Closing Date, subject to the rules and regulations (including civil service regulations, where applicable) governing all City employees. Employees who accept this offer shall be credited with any accrued leave (sick, holiday and vacation pay) balances, and shall be eligible to participate in City benefit plans, in accordance with City policy. The City agrees to waive any required waiting periods for M insurance and to cover preexisting illnesses. The City shall assume any unpaid obligations of the County to an Employee for the period of service of any such Employee ending on or prior to the Closing Date (including, but not limited to, sick pay, vacation pay, holiday pay, workers' compensation, COBRA, unemployment compensation or jury duty compensation). Employees shall be credited with past service to any Florida Retirement System employer only for the purpose of vesting in the City's pension plans. The City agrees to allow any Employee to transfer pension funds into the City's pension plans, if allowed by applicable Internal Revenue Service regulations. Except as specifically set forth in this Section 3.6, the City assumes no obligation, whether express or implied, with regard to any other benefits held by or due to Employees as a result of their employment with the County. At closing, evidence shall be provided (i) to the County by the City as to those Employees having accepted employment with the City, and (ii) by the County to the City that COBRA notices shall be delivered to any Employee not accepting employment with the City. 3.7 Substitution of Parties in the Case. The City will use its best efforts, together with the due cooperation of the County, to obtain all required approvals of the appropriate courts to allow the City to be substituted for the County in the Case, upon transfer of the Transferred Assets. In the event that the substitution of the City for the County is not completed or effective upon transfer of the Transferred Assets, this Agreement shall not terminate and the Closing shall take place as contemplated herein; provided, however, that the City shall assume control of all aspects of the Case with the County remaining as a nominal party until such time as the substitution shall become 23 effective, which substitution the parties hereto agree to continue to use their best .efforts to obtain subsequent to the Closing. ARTICLE IV TITLE; SURVEYS; CLOSING AND CONSIDERATION 4.1 Evidence of .Title. The City acknowledges receipt of a copy of the. existing title insurance policy in favor of the County covering the Real Property and the Property Interests. The City's Counsel, Dean, Mead & Minton, shall issue a title insurance commitment (the "Commitment") for an Owner's ALTA Form B marketability policy in favor of the City in an amount and from a title company, as determined by the City in its sole discretion.. The Commitment shall obligate the title insurance company upon recording of the Fee Simple Deed and the Assignment and Assumption Agreement relating to the Property Interests, to insure the City's interest in the Real Property and the Property Interests, subject only to the Permitted Encumbrances and those standard title exceptions unable to be deleted by the title company.. The City shall bear the sole cost of the title insurance and any search fees . The County shall cooperate with the City if the City determines to cure defects; provided, however, that in no event shall the County be required to expend funds, or to bring suit to quiet title. Notwithstanding the foregoing, the County agrees, upon reasonable request by the City, to be the nominal party in bringing a suit to quiet title, at the sole cost and expense of the City. 4.2 Status of Title. The City shall have a reasonable time within which to examine the Commitment. If the City finds title, as shown in the Commitment, to be defective (i.e., matters which are not Permitted 24 Exceptions), the City shall notify the County in writing specifying the defect(s). In the event that the City cannot clear said defects prior to the Closing Date, then in that event, the City's sole -remedy shall be either to (i) accept the Real Property and Property Interests in their then existing condition as to title, or (ii) terminate this Agreement consistent with the provisions of Section 11.3 (f ) . In the event the City elects to accept the Real Property and Property Interests and close the transaction contemplated hereby, the County shall cooperate,.as may be reasonably requested by the City and as set out above, in the City's efforts to address such defects subsequent to the Closing. 4.3 Surveys. The City, at the City's expense, shall have the right to have the Real Property and Property Interests surveyed, and/or have the existing surveys delivered to the City by the County updated, following the execution of this Agreement. The surveys shall be prepared by a Florida licensed surveyor and shall be certified to the City, the title insurance company and its issuing agent, and any other parties that the City shall desire. The surveys shall state that they were performed and prepared in compliance with the Minimum Technical Standards for Land Surveying for the State of Florida (Rule 61-G-17, Florida Administrative Code) and shall otherwise be in form and content satisfactory to delete the standard exceptions for matters of survey set forth in the title insurance commitment. In the event any survey shall reveal the existence of any encumbrances, encroachments, uses or title defects not expressly permitted herein, the City shall have the right to object thereto in writing to the County and the items objected to shall be treated as title defects under Section 4.2 hereinabove. 25 4.4 Closing. Subject to the satisfaction or waiver of the terms and conditions hereof, the consummation of the transaction contemplated by this Agreement (the "Closing") shall take place in'the offices of the County Attorney, at 2300 Virginia Avenue, Fort Pierce, Florida, at 10:00 A.M. on September 30, 1994, or at such other place, date or time as the parties shall mutually agree upon in writing, herein referred to as the "Closing Date". At the Closing, the City and the County will take the following actions concurrently: (a) The City shall deliver to the County, the sum of Ten Dollars ($10.00), which shall be the "Transfer Cost". (b) The City shall deliver to the Trustee, for the account of the County, funds .sufficient to defease the Outstanding County Bond Issues, subject to the terms and conditions of the Escrow Agreement, but further subject to the provisions of Section 5.8 hereinbelow. (c) The County shall deliver to the City, a Fee Simple Deed for the Real Property, substantially in the form of that set forth in Exhibit "U" attached hereto. (d) The County will deliver to the City, a Deed of Transfer conveying all Personal Property included in the Transferred Assets as hereinbefore provided, substantially in the form of that set forth in Exhibit "P" attached hereto, and the County shall deliver to the City actual possession of all Transferred Assets. All funds and other cash assets shall be delivered by wire transfer to the City pursuant to a letter of instruction from the City's Director of Finance delivered to the County at least five (5) days prior to Closing. 26 (e) The County shall deliver to the City, and the City shall execute, the Agreements provided for by Exhibits "R" "S", "T" and "DD" attached hereto. (f) The City shall pay all recording charges and all documentary stamp charges, if any. (g) The City shall pay its own legal, accounting, engineering, surveying and other costs incurred in connection with this transaction, and the County's reasonable legal, accounting, engineering, surveying and other costs incurred in connection with this transaction. (h) The County shall execute and deliver to the City, for execution by the City, the Administrative Offices Lease attached hereto as Exhibit "W". (i) In the event the City shall have adopted the Uniform Extension Policy prior to Closing, the City shall deliver to the County a certified copy of the resolution adopting the Uniform Extension Policy. (j) The County, the City and the Trustee shall execute and deliver the Escrow Agreement regarding the funds sufficient to defease the Outstanding County Bond Issues, substantially in the form of that set forth in Exhibit "K" attached hereto. (k) The County shall deliver to the City titles to all titled vehicles constituting Transferred Assets, said titles properly executed to evidence transfer to the City. (1) The County shall deliver all Exhibits or other items or documents to be updated as of or at Closing. 27 (m) The City and the County will execute such other documents at Closing as are customary and proper to effect the consummation of the transactions contemplated herein. ARTICLE V COVENANTS OF THE PARTIES The City and the County further agree each with the other as to the following covenants which the parties agree shall survive the Closing: 5.1 Investigation and Access_ The City has made or shall, prior to the Closing Date, through its own representatives, make such investigation of the Transferred Assets and liabilities of the County to be taken hereunder, and of the financial condition of County Utilities, as it deems necessary or advisable to familiarize itself with such properties, assets, liabilities and other matters. The County agrees to permit the City and its authorized representatives to have full access to the Real Property and Property Interests to be transferred hereunder and all the books, records, computer data and other information of the County which relate in any way to the County's ownership or operation of County Utilities as the City shall, from time to time, reasonably request. 5.2 Regular Course of Business of County Utilities. (a) Except as otherwise permitted by this Agreement, the County shall cause County Utilities (i) to carry on its respective businesses substantially in the same manner as heretofore conducted and solely in the ordinary course; (ii) to use all reasonable efforts to preserve the Transferred Assets substantially intact, to maintain in effect all federal, state and local approvals and authorizations which are required to operate the Utility W Systems as now being conducted, to preserve the good relationships with and the goodwill of County Utilities' customers, suppliers and other persons having business dealings with County Utilities; (iii) to repair and maintain all of County Utilities' properties and assets in accordance with its usual and ordinary maintenance standards; (iv) not to permit supply inventories at the time of Closing to be materially less than those maintained by County Utilities in the ordinary course of business; (v) to continue existing, or commence approved, capital improvement projects; (vi) to timely pay all Employees, vendors, contractors and all other obligations for payment by County Utilities through the Closing Date; and (vii) to diligently continue to file all reports required in connection with operation of the County Utilities. (b) The County agrees that the City shall have the right to designate a current employee of the City to have access to the Utility Systems, to be present at any meetings having material significance to the operation of the Utility Systems and to review any correspondence related thereto or otherwise to be consulted on all decisions having a material effect upon the operations of the Utility Systems. Said City employee shall have no operational control or authority with regard to the County Utilities; however, the County agrees that any reasonable recommendations made by said City employee shall be considered in the decision making process regarding the operation of the Utility Systems, if economically feasible. 5.3 Pre Closing operations of the Utility Systems. Except as otherwise permitted or required by this Agreement, or as expressly consented to in writing by the City, prior to Closing date: 29 (a) The County will not sell, assign, transfer or otherwise dispose of any material part of the Transferred Assets, except that Transferred Assets of an individual value of less than $10,000.00 and not exceeding an aggregate value of $50,000.00, may be sold, assigned, transferred or otherwise disposed of in the ordinary course of business, provided same is not necessary for the normal operation of County Utilities. (b) The County will not amend, terminate or change in any material respect any lease, contract, undertaking or other commitment, without the prior written consent of the City in each instance, such consent not to be unreasonably withheld or delayed. 5.4 Post -Closing Operations of the Utility Systems. (a) The City shall operate and manage the Utility Systems in a manner such that they will maintain sufficient capacities to meet: current demands and reasonably foreseeable future demands within the Service Areas in accordance with the Uniform Extension Policy. (b) After appropriate public comment and consultation with County Staff, the City will adopt a Uniform Extension Policy governing the extension of water and sewer services throughout the Service Areas. The Uniform Extension Policy shall provide, in addition to its other provisions, the following: (i) The City shall provide utility service to residents of the unincorporated portions of the Service Areas, at the option of the customer, either (A) upon payment of a surcharge as authorized by Section 180.191, Florida Statutes, or (B) by agreement to be voluntarily annexed into the City upon determination by the City to do so; provided, however, in no event shall the City require persons residing 30 in the Reserve development to agree to voluntarily annex into the City as a condition of service; (ii) In the event that eighty percent (80%) of the capacity of the Utility Systems to provide water or sewer service at such time is utilized, the City shall commence the permitting and design of water treatment plants having a capacity of at least 1.0 MGD or wastewater treatment plants having a capacity of at least .5 MGD, as applicable, and shall commence construction at ninety percent (90%) of capacity. The City hereby consents to the expediting of any legal proceedings instituted by the County seeking to compel performance of the City's obligation to construct additional facilities as set forth herein; and (iii) The County shall have the right to create special assessment districts to construct line extensions to the Utility Systems to provide utility services to residents in the unincorporated portions of the Service Areas in accordance with the City's Uniform Extension Policy. The City and the County agree to enter into separate agreements for each district created by the County. All capital improvements extended to such special assessment districts shall be dedicated to the City upon connection. The City agrees that the County will not be treated as a Developer with regard to "guaranteed revenues," as that term shall be defined in the Uniform Extension Policy and/or any rate resolutions passed by the City. The City will trom time Lo Lime, anu au any time when requested to do so by the County, take all steps and do all things necessary, proper or required, but which do not run contrary to the provisions of the City's Uniform Extension Policy, to provide water and sewer service to the special assessment districts within the unincorporated portions of the Service Areas. 31 (c) The parties agree that the foregoing provision is a material part of the consideration being received by the County hereunder and that the City has been advised by the County that but for the agreement -of the City to provide additional water and sewer service to the land within the Service Areas, in addition to the monetary considerations set forth in this Agreement, that the County would not have executed this Agreement and thereby have become obligated to convey or cause to be conveyed the.Transferred Assets to the City on the terms herein set forth. Accordingly, the City and the County hereby stipulate and agree that the covenants of the City set forth in Subsection 5.4(b), and the performance of the obligations of the City in this Agreement and the benefits to accrue to the County by virtue of such performance by the City, are in all respects, material considerations for the County's execution of this Agreement. The City acknowledges that the County has the right to purchase, construct or operate utility systems outside the Service Areas within the County. (d) The City will promptly provide the County with regular and .current operating information with respect to the Utility Systems, in the same general manner and format as that previously provided by the County to the City. (e) The City will provide water and sewer services in accordance with the Uniform Extension Policy to all properties, improvements thereon and the occupants thereof, located within the Service Areas after connection has been made and will take all steps and do all things necessary, proper or required to timely provide water and sewer service to all future customers or Developers located within the existing Service Areas or as such Service Areas may be expanded. 32 (f) The City. will not adopt any material policy or procedure which will unreasonably prevent, hamper or delay in any manner the expansion of the Water Systems or Sewage Systems and related facilities required to provide service to all future customers and the properties of Developers located within the Service Area. (g) The City will take all steps at all times that may be necessary or proper to ensure that revenue generated from the rates, fees and charges established for the Utility Systems shall always be maintained at a level sufficient to meet the City's obligations to the County, including other conditions, provisions and obligations of and under any obligations incurred in connection with or subsequent to acquisition of the Utility Systems. (h) The County shall cooperate with the City in the enforcement of all County, state and/or federal laws, regulations, ordinances or rules relating to utility matters in the unincorporated areas of St. Lucie County included in the Service Areas. (i) As between the City and the County, the parties hereto agree that provided the City is not in default under the terms of this Agreement, the County will not construct or operate water or sewer plants within the Service Areas. 5.5 Insurance. Fencing tine u-Lu5iiiy, L-il: %,%JLLill._Y �••u�� ��--��----� keep in full force and effect workers compensation, public liability and property loss insurance covering the Transferred Assets and the Employees. Upon closing, the City shall assume these obligations and properly insure against them in accordance with normal industry standards. 33 5.6 Sale of Utility Systems. The City specifically covenants and agrees with the County that it will not sell the Water Systems and/or Sewer Systems to a private entity without providing the County the first right of refusal. In the event the City intends to sell the Water Systems and/or Sewer Systems to a private entity, the City shall provide to the County written notice of the terms and conditions of such proposed sale, and the County shall have sixty (60) days following receipt of such notice to agree to purchase the Water and/or Sewer Systems on the same terms and conditions. In the event the County fails to exercise its right of first refusal within said sixty (60) day period, the right of first refusal granted herein shall terminate and be of no further force and effect, regardless of whether the proposed sale to a private entity is consummated. 5.7 Surcharges. As a material part of the consideration for the County entering into this Agreement, (1) existing customers of the Utility Systems located in the unincorporated portion of the Service Areas as of the date of Closing, (2) any future customers located in the unincorporated portion of the Service Areas under Developer Agreements existing as of the date of Closing, and (3) future customers of the Utility Systems located in the unincorporated portion of the Service Areas where either water or sewer service is available as of the date of closing by pipes located at or near the boundary of the property of such future customer, shall pay the same rates, fees and .charges as are paid by the same type of customer located within the City limits and no surcharge will be applied. Notwithstanding the foregoing, in the event a court of competent jurisdiction enters a judgment after vigorous defense by the .City determining that the covenants contained in this 34 paragraph are invalid or prevent the City from surcharging or annexing new customers outside the City limits, and such judgment is upheld on appeal by the City, the foregoing covenants shall terminate and have no further force or effect; provided, however, that the City shall not be able to surcharge or impose different rates, fees and charges on any customers of the Utility Systems located outside the City limits for a period of five (5) years from the date of Closing. The City agrees that the County shall have.the right to intervene in the litigation, at the sole cost and expense of the County which shall not be reimbursable or indemnified by the City. 5.8 Issuance of Bonds by the City. As a condition precedent to Closing, the City will issue its own municipal bonds in order to provide funds at Closing sufficient to defease the Outstanding County Bond Issues, subject to validation (and the expiration of the appeal period) of (a) the issuance of such bonds and (b) this Agreement, and subject to receiving the opinion of City's Bond Counsel, in the form of that attached hereto as Exhibit "EE", opining that this Agreement, including but not limited to the indemnity provisions contained herein, are valid, enforceable obligations of the City. Defeasance shall be deemed to occur upon the receipt by the City and the County of the Verification Report and the Defeasance Opinion, both dated as of the date of such delivery. 5.9 Negotiation with GDU. The County agrees that, following execution of this Agreement, the City shall have the right to engage in negotiations with GDU for the purpose of settling the Case; provided, however, that a representative from the County shall be given the opportunity to be present in all negotiations; provided, however, that 35 negotiations shall not be delayed by the failure of a representative of the County to be present after notice is given. The City and the County agree that prior to closing, no settlement agreement will be effective without the written consent of both the City and the County. 5.10 Surplus. Any surplus generated by the operations of the Utility Systems shall be reinvested in the Utility Systems or shall be used to lower or maintain the rates to the customers being serviced by the Utility Systems. 5.11 Service Areas. (a) The City and the County hereby acknowledge and agree that the Spanish Lakes Mobile Home Park ("SLMHP") shall not be included in the Service Areas. In consideration of the City's agreement to exclude SLMHP from the Service Areas, the County agrees that the City shall have no responsibility for any water and wastewater service and/or treatment plants or other facilities serving SLMHP should same fail, and the County agrees that, notwithstanding any other obligations, whether imposed by statute, regulation, rule or otherwise to the contrary, the County shall petition for a receiver to operate any such failed plant or facility. In the event such taiiea plant or facility shall desire to connect and obtain service from the Utility Systems then being operated by the 'City, or its assignee or designee, connection shall be pursuant to the then current Uniform Extension Policy of the City, or its assignee or designee, and further, there shall be no limitation on the ability of the City to treat such receiver as a Developer with regard to guaranteed revenues arising out of connections to serve SLMHP. (b) The City understands and acknowledges that the Spanish Lakes Riverfront ("Riverfront") development currently receives water 36 services from the Utility Systems pursuant to an existing Developer Agreement. Accordingly, Riverfront shall be included within the Service Areas; provided, however, that the City hereby agrees that Riverfront shall not be required to obtain sewer services from the City following transfer of the Utility Systems. ARTICLE VI CITY'S REPRESENTATIONS The City represents to the County, as follows: 6.1 Organization. The City is a Florida municipality, duly organized and validly existing under the laws of the State of Florida, and it has all requisite power and authority to own its property and carry on its business as being contemplated hereunder. 6.2 Validity of Agreements. The City has all necessary power and authority to acquire the Transferred Assets and to enter into this Agreement and to perform all of the obligations to be performed by it hereunder. This Agreement has been duly and validly executed and delivered by the City, and this Agreement constitutes the valid and legally binding obligation of the City, enforceable against the City in accordance with its terms. This Agreement and its consummation have been duly authorized and approved on behalf of the City by all requisite action as herein required. 6.3 Litigation. Except as disclosed in writing to the County by the City's Counsel, there are no actions, suits or proceedings pending or, to the knowledge of the City, threatened against or affecting the City, at law or in equity, or before any federal, state, municipal or governmental department, commission, board, bureau, agency or instrumentality which involve the possibility of any judgment or 37 liability not fully covered by insurance, and which may result in any material adverse change in the business operations, prospects, properties or assets or in the condition, financial or otherwise, of..the City, which could prevent the City's closing of this Agreement. 6.4 Brokers. All negotiations relative to this Agreement and the transactions contemplated hereby have been carried out by the City directly with the County, without the intervention of any person on behalf of the City, in such manner as to give rise to any claim by any person against the County for a finder's fee, brokerage commission or similar payment. 6.5 Accuracy of Information. The statements of the City contained herein are true and correct in all material respects and do not omit any material fact necessary to make the statements of the City contained herein or therein, in light of the circumstances under which they were made, not misleading. The statements of the City contained in Sections 6.3 and 6.4 herein are for disclosure purposes only. ARTICLE VII COUNTY'S REPRESENTATIONS The County represents to the City, as follows: 7.1 Organization. The County is a political subdivision of the State of Florida, duly organized and validly existing under the laws of the State of Florida, and it has all requisite power and authority to own its property and carry on its business as now being conducted. 7.2 Validity of Agreements. The County has all necessary power and authority to transfer the Transferred Assets and to enter into this Agreement and to perform all of the obligations to be performed by it hereunder. This Agreement has been duly and validly executed and 38 delivered by the County, and this Agreement constitutes the valid and legally binding obligation of the County, enforceable against the County in accordance with its terms. This Agreement and its consummation have been duly authorized and approved on behalf of the County by all requisite action as herein required. 7.3 Litigation. Except as disclosed in writing to the City by the County's Counsel, there are no actions, suits or proceedings pending or, to the knowledge of the County, threatened against or affecting the County, at law or in equity, or before any federal, state, municipal or governmental department, commission, board, bureau, agency or instrumentality which involve the possibility of any judgment or liability not fully covered by insurance, and which may result in any material adverse change in the business operations, prospects, properties or assets or in the condition, financial or otherwise, of the County which could prevent the County from consummating the transaction contemplated by this Agreement. The County agrees that it shall have a continuing duty to disclose up to and including the Closing Date, the existence and nature of all pending judicial or administrative suits, actions, proceedings and orders, of which the County or any of its employees, agents or contractors are aware, which in any way relate to the operation of the Utility Systems. 7.4 Brokers. All negotiations relative to this Agreement and the transactions contemplated hereby have been carried out by the County directly with the City, without the intervention of any person on behalf of the County, in such manner as to give rise to any claim by any person against the City for a finder's fee, brokerage commission or similar payment. 39 7.5 Exhibits. All information set forth in the Exhibits attached hereto and made parts hereof, and all information delivered to the City pursuant thereto, is true and correct to the best of the County's knowledge, and, as required by the then existing state of facts, will be updated prior to Closing and as updated, shall be true and correct to the best of the County's knowledge. 7.6 Accuracy of Information. The statements of the County contained herein are true and correct in all material respects and do not omit any material fact necessary to make the statements of the County contained herein or therein, in light of the circumstances under which they were made, not misleading. The statements of the County contained in Sections 7.3, 7.4 and 7.5 herein are for disclosure purposes only. The City is not relying on the statements of the County contained herein, and such statements are not actionable representations nor warranties and do not alter the status of this Agreement as an AS IS, WHERE IS transfer. ARTICLE VIII INDEMNIFICATION 8.1 Indemnification. (a) The County specifically does not agree to indemnify the City in respect of, and/or hold the City harmless against, any and all damages, claims, suits, judgments, costs, deficiencies, losses and all expenses (including interest, penalties and reasonable attorneys' fees and expenses of trial and of any appeal and accountants' fees and disbursements) in connection with the transfer of the Transferred Assets. The foregoing shall not act as a release of the County in the event it shall fail to perform its obligations as set forth herein or in 40 any agreement executed and delivered pursuant to the provisions of this Agreement; provided, however, that the foregoing shall not obligate the County to perform under any Developer Agreements subsequent to the Closing Date. (b) In consideration of Ten Dollars ($10.00) and other good and valuable consideration paid by the County, receipt of which is hereby acknowledged, to the extent that doing so does not waive any right of immunity available to the City or County, whether pursuant to Section 768.28, Florida Statutes, or otherwise, the City (out of funds derived solely from its operation of the Utility Systems, except as specifically set- forth herein) hereby agrees to indemnify, protect, save and hold forever harmless the County and any and all of its Commissioners, officers and employees (all the foregoing entities and persons being herein collectively referred to as the "County's Group") from and against all liabilities, obligations, claims, damages, judgments, penalties, costs and expenses (including attorneys' fees and all court costs) which the County's Group, or any of them, may incur, suffer or sustain, or for which the County's Group, or any of them, may become obligated or liable by reason of: (i) the Final Judgment, any final judicial orders, any Appellate decisions, any Interlocutory orders or decisions, and any changes or amendments thereto previously or subsequently entered, or any settlement agreement in the Case and further including any other lawsuits, claims, obligations, damages, judgments, penalties, costs and expenses (including attorney fees at all court levels) connected with the Case, either directly or indirectly. The obligations of the City to indemnify the County pursuant to this Subsection 8.1(b)(i) shall not be 41 limited (A) by the right of immunity exception , or (B) to the funds derived from the Utility Systems; provided, however, that the County shall not have the right to compel the City to levy ad valorem taxes. (ii) any injury to or death of persons or loss of or damage to property in connection with, or as a result of, any entry or entries upon, or use of the Transferred Assets, the Real Property or the Property Interests by the City, its employees, agents or independent contractors, prior to Closing, other than any injury or death to persons or loss or damage to property arising out of or relating to the negligent act or omission of the County's Group, or any one of them. (iii) the cost of any labor or services performed or of any materials furnished by or for the account or benefit of or at the sufferance of the City in respect of the Transferred Assets, the Real Property or the Property Interests; it being understood and agreed, however, that this provision shall not require the City to pay for or reimburse the County for any expenses incurred by the County in connection with responding to the reasonable requests of the City for information relating to the County's operation of the Utility Systems or which were incurred by the County prior to Closing. In case any action, suit or proceeding is brought against the County's Group, or any of them, by reason, or on account, of any of said pre -closing activities for which the City -has -agreed to indemnify the County Group, the City shall, at the City's expense, resist and defend such action, suit or proceeding, and cause the same to be resisted and defended by legal counsel engaged by the City; or (iv) any liabilities of the County relating to the Utility Systems which are to be assumed by the City in connection with its 42 acquisition of the Transferred Assets or which arise after the Closing Date. (v) Any nonfulfillment or failure to perform any covenant or agreement on the part of the City made as a part of or contained in this Agreement, or in any agreements executed and delivered in connection with this Agreement or the transactions contemplated hereby, except for damages resulting from any such nonfulfillment or failure to perform any such covenant or agreement which the County has specifically waived in writing. (vi) Any shortfall in the amount of funds held by the Trustee necessary to defease the Outstanding County Bond Issues. (c) Except as to the Case, notwithstanding anything contained herein to the contrary, it is acknowledged and agreed by the parties hereto that the foregoing indemnification is not intended and shall not constitute an agreement by the City to be jointly and severally liable for all the liabilities and obligations of the County, but is merely an indemnification of those obligations and liabilities (or portion thereof) related to the Utility Systems. The City agrees to set rates at a level sufficient to fund the .City's indemnification obligations hereunder; provided, however, in the event any liability or obligation (except pursuant to Subsection 8.1(b)(i) above) is determined by a court of competent jurisdiction to not be properly chargeable to the Utility Systems as a liability or obligation payable by the rate payers, the City does not and will not indemnify the County. 8.2 Method of Asserting Claims, Etc. All claims for indemnification by County under this Article VIII shall be asserted and resolved as follows: 43 (a) In the event that any claim or demand for which City would be liable for Damages to the County hereunder is asserted against or sought to be collected from such County by a third party (the "Third Party Claim"), the County shall, with reasonable promptness, notify in writing (pursuant to the provisions of Article XII herein) the City of such Third Party Claim, enclosing a copy of all papers served, if any, and specifying the nature of and specific basis for such Third Party Claim and the amount or the estimated amount thereof to the extent then feasible (which estimate shall not be conclusive of the final -amount of such Third Party Claim (the "Claim Notice")). The City shall not be obligated to indemnify the County with respect to any such Third Party Claim if the County fails to notify the City thereof in accordance with the provisions of this Agreement in reasonably sufficient time so that the City's ability to defend against the Third Party Claim is not prejudiced. The City shall have thirty (30) days from its actual receipt (notwithstanding the provisions of Section 12.1) of the Claim Notice (the "Notice Period") to notify the County, (i) whether or not the City disputes the liability of the City, to the County hereunder with respect to such Third Party Claim, and (ii) whether or not the City desires, at the sole cost and expense of the City, to defend the County against such Third Party Claim. (i) If the City notifies the County within the Notice Period that the City does not dispute its liability to the County and that the City desires to defend the County with respect to the Third Party Claim pursuant to this Article VIII, then the City shall have the right to defend, at its sole cost and expense, such Third Party Claim by all appropriate proceedings, which proceedings shall be promptly and 44 vigorously prosecuted by the City to a final conclusion or, at the discretion of the City, settled up to the amount for which the City could be liable to the County pursuant hereto. The City shall have full control of such defense and proceedings, including any compromise, release or settlement thereof; provided that if requested by the City, the County agrees, at -the sole cost and expense of the City, to cooperate with the City and its counsel in contesting any Third Party Claim which the City elects to contest, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross -complaint against any person. The County may participate in, but not control, any defense or settlement of any Third Party Claim controlled by the City pursuant to this Paragraph 8.2 (a)(i). (ii) If the City fails to notify the County within the Notice Period that the City does not dispute its liability to the County and the City desires to defend the County pursuant to this Article VIII, or if the City fails to diligently and promptly prosecute the Third Party Claim or settle it, then the County shall have the right to defend, at the sole cost and expense of the City, the Third Party Claim by all appropriate proceedings, which proceedings shall be promptly and vigorously prosecuted by the County to a final conclusion or settlement. 'The County shall have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that if requested by the County, the City agrees, at the sole cost and expense of the City, to cooperate with the County and its counsel in contesting any Third Party Claim which the County is contesting, or, if appropriate and related to the Third Party Claim in question, in making 45 any counterclaim against the person asserting the Third Party Claim, or any cross -complaint against any person. (b) In. the event the County, should have a claim against City hereunder which does not involve a Third Party Claim being asserted against or sought to be collected from the County by a third party, the County shall notify the City of such claim by the County, specifying the nature- of and specific basis for such claim and the amount of the estimated amount of such claim (the "Indemnity Notice"). If the City does not notify the County within forty-five (45) days from its actual receipt (notwithstanding the provisions of Section 12.1) of the Indemnity -Notice that the City disputes such claim, the amount or estimated amount of such claim specified by the County shall be conclusively deemed a liability of the City hereunder. If the City has timely disputed such claim, as provided above, such dispute shall be resolved. by litigation in an appropriate court of competent jurisdiction. (c) In the event the City is not substituted for the County in the Case, as provided in Section 3.7 above, or in the event that such substitution is ultimately rendered invalid, any claim or demand arising out of the Case, including but not limited to an excess judgment, shall be asserted by the County and responded to by the City as follows: (i) - Upon entry of an excess judgment against the County, the City shall either (A) promptly take such action to pay into the court the compensation ascertained by the excess judgment as required for payment of judgments under Chapter 74, Florida Statutes, prior to any levy of execution against the County for such excess judgment, or (B) timely file an appeal of such excess judgment. 46 (ii) In the event the City elects to timely file aiL appeal of the excess judgment, the City shall promptly make provisions for payment of the excess judgment in the event the City is unsuccessful on appeal, so that payment of the excess judgment will be made under the provisions of Chapter 74, Florida Statutes, prior to any levy of execution against the County for such excess judgment. (iii) The provisions of subsections (i) and (ii) above shall also apply to any post -judgment judgments including, but not limit ed.to, a judgments) for costs and attorneys' fees under Chapter 73, Florida Statutes. (iv) Prompt provision for payment under subsection (ii) above shall include, but not be limited to, preparation of such municipal bond documents (including validation thereof if determined desirable), utility rate adjustments and feasibility reports, and/or municipal taxing or assessment districts which can be implemented upon finalization of any judgment against County to insure timely payment as required above. The County shall have the right to compel compliance with this subsection to the County's reasonable satisfaction. ARTICLE I% CONDITIONS TO OBLIGATIONS OF THE COUNTY Except as may be waived in writing by the County, the obligations of the County to consummate this Agreement and the transactions to be consummated by the County hereunder on the Closing Date shall be subject to the satisfaction, prior to or concurrently with the Closing, of each of the conditions set forth in this Article. 9.1 Performance. All action necessary to authorize the execution, delivery and performance by the City of this Agreement shall have been 47 duly and validly taken by the City; the City shall have complied with and performed in all material respects the terms, conditions, acts, undertakings, covenants and obligations required by this Agreement to be complied with and performed by the City on or before the Closing. 9.2 Representations True as of Closing. All of the representations of the City made herein or in any certificate executed and delivered in connection with the transaction contemplated hereby shall be true and correct in all material respects upon and as of the Closing Date with the same effect as though such representations had been made upon and as of the Closing (except for those that relate to future matters permitted or required by this Agreement, and then the same shall be given including such future matters). 9.3 Absence of Litigation. No order oz any c.uuiL- %Jl administrative agency shall be in effect which restrains or prohibits all or any of the transactions contemplated hereby, and no action or proceeding before any court or governmental agency or other regulatory or administrative agency or commission shall have been instituted or threatened by any governmental or other regulatory or administrative agency or commission challenging any of the transactions contemplated hereby or otherwise directly or indirectly relating to the transactions contemplated hereby with respect to which the County's Counsel shall have delivered a written opinion to the Board of County Commissioners (with a copy to the City) that such action or proceeding raises serious and substantive issues of law or fact, the final resolution of which is doubtful and not reasonably determinable, and which could effect a material adverse change to the business or financial condition of County Utilities or prohibit or render unlawful the transfer of ownership of the Transferred Assets as contemplated by this Agreement. 9.4 Governmental Action and Consents. There shall not have been any action taken by any court, government or governmental agency, domestic or foreign, prohibiting or making illegal the transactions contemplated by this Agreement. 9.5 City Action. The County shall have received: (a) a copy of the resolution or resolutions duly adopted by the City Council authorizing the execution, delivery and performance of the Agreement by the City, certified by the Clerk of the City; (b) a certificate of the Clerk of the City as to the incumbency and signatures of the officers of the City executing the Agreement; and (c) an executed copy of each of the Exhibits to this Agreement which are required to be executed by the parties as of the Closing Date, except as otherwise specifically permitted by this Agreement. 9.6 Opinion of City Attorney. The County shall have received the opinion of the City Attorney, dated as of the Closing Date, in form and substance reasonably satisfactory to the County, to the effect that based upon such investigations of fact and law as counsel has deemed appropriate: 49 (a) The City is a municipal corporation, duly organized, validly existing and in good standing under the laws of the State of Florida, with full power and authority to condemn property, execute and deliver this Agreement and consummate the transactions contemplated hereby. (b) The execution and delivery, of the Agreement and the consummation by the City of the transactions contemplated by this Agreement have been duly and validly authorized by all necessary action of the City. The Agreement has been duly executed and delivered by the City, and it, together with all of its Exhibits, constitutes the valid and binding obligation of the City, which is enforceable against the City in accordance with its or their terms. (c) Except as set forth in such counsel's opinion, there are no actions, suits or proceedings, at law or in equity, pending or, to the best of counsel's knowledge, threatened against the City before any federal, state, county, municipal or government court, department, commission, board, bureau, agency or other instrumentality that may involve the possibility of any judgment, assessment or liability that would affect the City's ability to consummate the transaction contemplated by this Agreement or which would impair or hinder the City's ability to carry out the covenants and agreements of the City to or for the benefit of the County which are to be carried out or performed by the City on or after the Closing Date. (d) Except as set forth by the City Attorney or City's Counsel in writing to the County prior to Closing, counsel is not aware of any legal, administrative, governmental or other suit, action, arbitration, proceeding or investigation pending or threatened against 50 or affecting the City which seeks to enjoin the performance of any or all of the provisions of this Agreement or raises any issue as to the validity or enforceability of this Agreement or of an action taken or to be taken by the City hereunder. ARTICLE % CONDITIONS TO OBLIGATIONS OF THE CITY Except as may be waived in writing by the City, the obligations of the City to consummate this Agreement and the transactions to be consummated by the City hereunder on the Closing Date shall be subject to the satisfaction, prior to or concurrently with the Closing, of each of the conditions set forth in this Article. In the event such conditions are not satisfied by the Closing Date, the City's sole remedy shall be the right to terminate this Agreement pursuant to Section 11.3(b). 10.1 Performance. All action necessary to authorize the execution, delivery and performance by the County of this Agreement shall have been duly and validly taken by the County; the County shall have complied with and performed in all material respects the terms, conditions, acts, undertakings, covenants and obligations required by this Agreement to be complied with and performed by the County on or before the Closing. 10.2 Representations True as of Closincr. All of the representations of the County made herein or in� any certificate executed and delivered in connection with the transaction contemplated hereby shall be true and correct in all material respects upon and as of the 51 Closing Date with the same effect as though such representations had been made upon and as of the Closing (except for those that relate to future matters permitted or required by this Agreement, and then the same shall be given including such future matters). 10.3 Absence of Litigation. No order of any court or administrative agency shall be in effect which restrains or prohibits all or any of the transactions contemplated hereby, and no action or proceeding before any court or governmental agency or other regulatory or administrative agency or commission shall have been instituted or threatened by any governmental or other regulatory or administrative agency or commission challenging any of the transactions contemplated hereby or otherwise directly or indirectly relating to the transactions contemplated hereby with respect to which the City Attorney shall have delivered a written opinion to the City Council (with a copy to the County) that such action or proceeding raises serious and substantive issues of law or fact, the final resolution of which is doubtful and not reasonably determinable, and which could prohibit or render unlawful the acceptance by the City of ownership of the Transferred Assets as contemplated by this Agreement. 10.4 Governmental Action and Consents. - (a) There shall not have been any action taken by any court, government or governmental agency, domestic or foreign, prohibiting or, making illegal the transactions contemplated by this Agreement. 52 (b) Any governmental consents or approvals required by the County for the transactions contemplated by this Agreement, and the consents and approvals of any third parties whose consent or approval is required in order to transfer the Transferred Assets, shall have been obtained by the City, and the City and the County shall have been furnished with appropriate evidence, reasonably satisfactory to them and their respective counsel, of the granting and/or provision for such approvals and consents. 10.5 County Action. The City shall have received: (a) a copy of the resolution or resolutions duly adopted by the Board of County Commissioners authorizing the execution, delivery and performance of the Agreement by the County, certified by the Clerk to the Board of County Commissioners; (b) a certificate of the Clerk to the Board of County Commissioners as to the incumbency and signatures of the officers of the County executing the Agreement; and (c) an executed copy of each of the Exhibits to this Agreement which are required to be executed by the parties as of the Closing Date, except as otherwise specifically permitted by this Agreement. 10.6 Opinion of County's Counsel. The City shall have received the opinion of the County's Attorney, dated as of the Closing Date, in form and substance reasonably satisfactory to the City, to the effect that based upon such investigations of fact and law as counsel has deemed appropriate: (a) The County is a political subdivision of the State of Florida, duly organized, validly existing and in good standing under the 53 laws of the State of Florida, with full power and authority to condemn property, execute and deliver this Agreement and consummate the transactions contemplated hereby. (b) The execution and delivery of the Agreement and the consummation by the County of the transactions contemplated by this Agreement have been duly and validly authorized by all necessary action of the County. The Agreement has been duly executed and delivered by the County, and it, together with all of its Exhibits, constitutes the valid and binding obligation of the County, which is enforceable against the County in accordance with its or their terms. (c) Except as set forth in such counsel's opinion, there are no actions, suits or proceedings, at law or in equity, pending or, to the best of counsel's knowledge, threatened against the County before any federal, state, county, municipal or government court, department, commission, board, bureau, agency or other instrumentality that may involve the possibility of any judgment, assessment or liability that would affect the County's ability to consummate the transaction contemplated by this Agreement or which would impair or hinder the County's ability to carry out the covenants and agreements of the County to or for the benefit of the City which are to be carried out or performed by the County on or after the Closing Date. (d) Except as set forth by the County's Counsel in writing to the City prior to Closing, to the best of counsel's knowledge, counsel is not aware of any legal, administrative, governmental or other suit, action, arbitration, proceeding or investigation pending or threatened against or affecting the County which seeks to enjoin the performance of any or all of the provisions of this Agreement or raises any issue as to 54 the validity or enforceability of this Agreement or of an action taken or to be taken by the County hereunder. ARTICLE %I MODIFICATION; WAIVERS AND TERMINATION 11.1 Modification. The City and the County may amend, modify or supplement this Agreement in such manner as may be mutually agreed upon by them in writing at any time. 11.2 waivers. Subject to the provisions of Section 13.4, each of the City or the County may, pursuant to appropriate action of the City Council or County Commission, respectively, and by an instrument in writing, extend the time for or waive the performance of any of the obligations of the other or waive compliance by the other with any of the covenants or conditions contained herein. 11.3 Termination. This Agreement may be terminated, and the transactions contemplated hereby rescinded, prior to Closing: (a) By the mutual consent of the City and the County; (b) By either party at any time after December 30, 1994, if by that time (or any such later date as shall have been agreed to in writing by the City and the County) the Closing shall not have occurred; (c) By either party if there has been a material misrepresentation or material breach on the part of the other party in the representations of the other party contained in this Agreement or any certificate or other instrument delivered or furnished by the other party pursuant hereto, or if there has been any failure on the part of the other party to comply with or perform its agreement, covenants and obligations hereunder in any material respect, and such misrepresentation, noncompliance or nonperformance shall not have been F*y cured or eliminated by the defaulting party within twenty ( 20 ) days from receipt of written notice of such failure or waived by the non - defaulting party on or before the Closing Date; (d) By the City or the County if the consummation of the transactions contemplated hereby shall violate any final, nonappealable order, decree or judgment of any court or governmental body having competent jurisdiction on or before September 30, 1994; or ..(e) In the event that on or before September 30, 1994, any governmental body, public authority or private person or party (other than the City) issues or obtains a temporary or preliminary order, writ, decree or judgment restraining, enjoining or otherwise preventing the consummation of this Agreement or the transactions contemplated herein, or any governmental body or publicly regulated authority which is empowered by law to take or condemn property shall initiate any eminent domain proceeding with respect to a material portion of the Transferred Assets or any portion of the Real Property or Property Interests and, pursuant to such condemnation action, obtains a temporary or preliminary order, writ, decree or judgment restraining, enjoining or otherwise preventing the consummation of this Agreement or the transactions contemplated herein, then, by mutual agreement, the parties may either terminate this Agreement or extend the Closing to an Extended Closing Date; it being agreed that prior to terminating this Agreement under this Section 11.3, the County and the City shall in good faith take all actions which, in the opinion of their respective counsels, are reasonable to enable the County and the City to contest any such action. For purposes of this Agreement, an "Extended Closing Date" shall mean the Closing Date as extended by mutual agreement of the parties to a M. specified date no later than December 30, 1994 (the "Extended Closing Date"), except as set forth in subsection (f) below. (f) In the event the City's municipal bonds and this Agreement are not validated, or the opinion of City's Bond Counsel is not delivered, prior to or at Closing, as set forth in Section 5.8; provided, however, that notwithstanding the foregoing, in the event that as of the Closing Date, (i) the final judgment in the validation proceedings of the City's municipal bonds and/or this Agreement has been appealed, and no final opinion (including rehearings) has been rendered by the Florida Supreme Court, or (ii) the time to appeal the decision of a lower court has not yet expired, then the Closing Date shall automatically be extended to a date which is sixty (60) days following the date upon which the judgment in the validation proceedings for the City's municipal bonds and this Agreement becomes final and non - appealable, without regard as to whether the Closing shall take place after the Extended Closing Date. (g) The power of termination provided for by this Section 11.3 may be exercised for the City or the County, as the case may be, only by or on the authority of their respective Boards and will be effective only after written notice thereof ( signed on behalf of the party for which it is given by its Chief Executive Officer) shall have been given to the other. 11.4 Limitation on Liability. Notwithstanding any other provisions of this Agreement, if this Agreement is terminated in accordance with the procedures set forth in Section 11.3, neither party shall have any liability to the other party of any nature or extent, and each party shall be 'responsible for any and all expenses incurred by it, 57 including, but not limited to, attorney, accounting, engineering, brokerage and consulting expenses. ARTICLE %II NOTICES 12.1 Procedures. Any notice, report, demand or other instrument authorized or required to be given or furnished under this Agreement shall be deemed given or furnished (i) when addressed to the party intended to receive the same, at the address of such party set forth below, on the date hand delivered at such address, or (ii) three (3) business days after the same is deposited in the United States mail, certified mail, return receipt requested, postage prepaid, whether or not the same is actually received by such party, or (iii) on the first business day following delivery of same to an overnight courier, as evidenced by the sender's copy of the bill of lading issued by such overnight courier. As to the City: CITY OF PORT ST. LUCIE 121 S.W. Port St. Lucie Boulevard Port St. Lucie, Florida 34984 Attention: City Manager With copies to: CITY OF PORT ST. LUCIE 121 S.W. Port St. Lucie Boulevard Port St. Lucie, Florida 34984 Attention: City Attorney AND DEAN, MEAD & MINTON 1903 South 25th Street, Suite 200 Post Office Box 2757 Fort Pierce, Florida 34954-2757 Attention: Robert N. Klein, Esq. As to the County: ST. LUCIE COUNTY . 2300 Virginia Avenue Fort Pierce, Florida 34982 Attention: County Administrator With copies to: St. Lucie County 2300 Virginia Avenue Fort Pierce, Florida 34982 Attention: County Attorney 12.2 Change of Address. Any party may change the address to be used for notification purposes hereunder by providing written notice thereof in accordance with the terms hereof to the other parties. ARTICLE %III MISCELLANEOUS 13.1_Gender and Numbers. All words or terms used in this Agreement, regardless of the number or gender in which they are used, shall be deemed to include any other number and any other gender as the context may require. "Hereof", "herein" and "hereunder" and words of similar import shall be construed to refer to this Agreement as a whole, and not to any particular paragraph or provision, unless expressly so stated. 13.2 Further Assurances. The County and the City agree that at any time and from time to time after the Closing, they will execute and deliver to any other party such further instruments or documents as may reasonably be required to give effect to the transactions contemplated hereunder, including, but not limited to, those that may be of assistance in the issuance of bonds by the City, provided that no such instrument shall alter the agreement of the parties hereunder. 13.3 Non -Assignment. Except as otherwise specifically provided herein, this Agreement shall not be assignable by any party without the written consent of the other. Notwithstanding the foregoing, the City shall have the right to assign this Agreement to an authority created by the City without the prior consent of the County after the settlement of 59 the Case or issuance of a final order in the Case after all appeals have expired and any judgments paid; provided that such authority has the legal right, as evidenced by opinion of counsel, and agrees to assume all the obligations of the City hereunder, in which event, the County agrees (i) to release the City from all liability hereunder, and (ii) to substitute such authority in the place and stead of the City as it pertains to this Agreement. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns of the parties hereto. .13.4 Waiver. The failure of any party at any time or times to require performance of any provision hereof shall in no manner affect such party's right at a later date to enforce the same. No waiver by either party of a condition or a breach of any term, covenant or representation contained in this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be construed as a further or continuing waiver of such condition, breach or waiver of any condition or of the breach of any other term, covenant or representation of this Agreement. 13.5 Counterparts. This Agreement may be executed in counterparts with the same effect as if the signatures to each counterpart were upon the same instrument. 13.6 Entire Agreement. This Agreement sets forth the entire understanding of the parties and supersede all prior agreements, arrangements and communications, whether oral or written, between the parties hereto with respect to the subject matter hereof and there are no verbal or written representations, warranties, understandings, conditions, agreements or promises pertaining to the subject matter of the Agreement not incorporated in writing herein; and neither this Agreement nor any of the terms, provisions, representations, warranties or covenants herein contained shall be modified, changed, terminated, superseded, waived, extended or amended, except by appropriate written agreement of the parties hereto. Captions appearing in this Agreement are for convenience only and shall not be deemed to explain, limit or amplify the provisions hereof. 13.7 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. 13.8 Integration. It is agreed by and between the parties hereto that all words, terms and conditions contained herein are to be read in concert, each with the other, and that a provision contained under one heading may be considered equally applicable under another in the interpretation of this Agreement. 13.9 Time of Essence. Time is of the essence as to all matters agreed to herein by the parties. 13.10 Disclaimer of Third Party Beneficiaries. This Agreement is solely for the benefit of the parties hereto, 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. 13.11 RADON GAS NOTIFICATION. RADON IS A NATURALLY OCCURRING RADIOACTIVE GAS THAT, WHEN IT HAS ACCUMULATED IN A BUILDING IN SUFFICIENT QUANTITIES, MAY PRESENT A HEALTH RISK 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. 61 13.12 Construction. All of the parties to this Agreement have participated fully in the negotiation and preparation hereof, and, accordingly, this Agreement shall not be more strictly construed against any one of the parties hereto. 13.13 Severability. In the event any non -material term or provision of this Agreement shall be determined by appropriate judicial authority to be illegal or otherwise invalid, such provision shall be given its nearest legal meaning or be construed as deleted as such authority determines, and the remainder of this Agreement shall be construed to be in full force and effect. 13.14 Attorneys, Fees and Other Costs. In the event of any litigation between the parties under this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees and court costs at all trial and appellate levels. 13.15 Termination of Interlocal Agreement. On September 5, 1989, the County and the City entered into a Interlocal Agreement providing for the acquisition, maintenance, operation and expansion of the Water Systems and the Sewer Systems. The parties hereto acknowledge and agree that said Interlocal Agreement shall terminate and be of no further force or effect upon transfer of the Transferred Assets to the City and delivery of items to take place at the Closing. 13.16 Survival. This entire Agreement shall survive the Closing and delivery of the Fee Simple Deed. 62 IN WIT14ESS WHEREOF, the County and City have each caused this Agreement to be executed by their duly elected and authorized officers as of the date and year first above written. ATTEST: ti f ^ A`;- C J j Y ^ r c:\psl\18995Csr.tran (June 25, 1994 Final) BOARD OF COUNTY COMMISS-3^FAS 'ERS, ST_ LUCIE COUNTY, FLOROA BY: CHAIRMAN APPROVED) AS 1T0 FORM AN'W PA CITY ,O/FyDpv 'I`---sT..%y'�Tt�rv<r��+.IE, FLORIDA Mayor APPROVED AS TO FORM AND CORRECTNESS: City Attorney �( 63 FIRST AMENDMENT TO AGREEMENT OF TRANSFER 'PHIS FIRST AMENDMENT TO AGREEMENT OF TRANSFER ("Amendment") dated as of the 30th day of September, 1994, by and between ST. LUCIE COUNTY, FLORIDA, a political subdivision of the State of Florida (the "County"), and the CITY OF PORT ST. LUCIE, FLORIDA, a municipality organized under the laws of the State of Florida (the "City"). W I T N E S S E T H• WHEREAS, the County and the City entered into that certain Agreement of Transfer dated June 28, 1994 (the "Agreement"), pursuant to which the County agreed to transfer. to the City, and the City agreed to accept, the Utility Systems defined and described in the Agreement; WHEREAS, the Agreement addressed the Service Areas (as defined in the Agreement) of the Utility Systems which would be serviced by the City subsequent to transfer; and WHEREAS, the County and the City desire to modify and amend the Agreement by revising the boundaries of the Service Areas, as shown on Exhibit "L", attached to and made a part of the Agreement. NOW, THEREFORE, in consideration of Ten Dollars ($10.00) in hand paid, and other good and valuable .consideration, the receipt and sufficiency are hereby acknowledged, the parties hereto agree as follows: 1. The recitals set forth above are true and correct and are incorporated herein as if set forth herein verbatim. 2. Exhibit "L" attached to the Agreement is hereby deleted, and Exhibit "L", attached hereto and made a part hereof, is substituted in lieu thereof, such that any reference to the Service Areas in the Agreement shall mean those Service Areas depicted in Exhibit "L", attached hereto. 3. Except as herein specifically modified and amended, the Agreement shall remain in full force and effect. IN WITNESS WHEREOF, the parties have executed this First Amendment to Agreement of Transfer as of the day and year first above written. ATTEST: 1 Clerk [Of ficial�G? cc vi =� ( 'tSOD WEtpl .lC�Frni�NT'{.E� [Official Seal] psl\18995Csr.amend COUNTY: BOARD OF COUNTY COMMISSIONERS ST. LUCIE COUNTY, FLORIDA BY: __ Denny Gr , ice Chairman APPROVED AS TO FORM AND CORRECTNESS: ,(,4,� D n' el S . McIntyre, 1" Co ty Attorney CITY• CITY OF P T. UCTE, FLORIDA Robert E . Minsky, Mayo]EE' APPROVED AS_TO FPRM AND City At FORT PIERCE UTILITIES AUTHORITY "Committed to Quality" MEMORANDUM To: David Recor, City Manager From: Bill Thiess, P.E., Director of Utilities /*_V1' Subject: Cost Estimate for Providing Water/WW Service to Flatwoods Development Date: October 13, 2009 On September 3, FPUA received a request from the City to provide a budget -level estimate for providing bulk water and wastewater service to the Flatwoods development at the northwest corner of 1-95 and Midway Road. Flatwoods is the scaled -down version of the former Provences development. Based on a meeting with City staff and representatives of the developer, we were told that the Flatwoods development would consist only of a 200-unit hotel and 2,500,000 square feet of non-residential development on 192 acres of land. Our budget -level cost estimate includes the water and wastewater infrastructure improvements that would be required to bring those services up to the perimeter of this proposed development. Some of these improvements would be in the County's retail service area (Area B) and some would be in FPUA's retail service area (Area A). We did not distinguish which improvements would be in which retail service area, as that will not significantly affect the cost. The budget -level cost estimates are as follows; utilitV Estimated Range of Cost Water $2.5 to $3 million Wastewater $1.5 to $2 million The water costs include water main extensions from the site to FPUA mains east of the Turnpike and a water storage and pumping facility. The wastewater costs include force main extensions between the project and FPUA force mains east of the Turnpike in the Glades Cut -Off Road area and pump upgrades to FPUA lift stations. They do not include the wastewater pumping station that would serve the development, which is typically constructed by the developer. The costs shown above are considerably lower than those we provided previously for the Provences development for several reasons: 1. The Flatwoods development is considerably smaller than the Provences development and the water and wastewater flows are proportionately smaller. 2. A system of 12-inch force mains has been installed recently in the Selvitz and Edwards Road corridors, providing a route for wastewater that was not suitable for the larger Provences project. 3. The County terminated the interlocal agreement for FPUA receiving and treating landfill leachate, which made capacity available in the 6-inch force main in the Glades Cut -Off Road and canal right-of-ways between the landfill and Selvitz Road. This force main can marginally handle all of the wastewater from Flatwoods if there are no other connections, but capacity in this segment would eventually have to be increased. We are very comfortable with these numbers at a budget level, particularly the higher end of the ranges. The higher end of the wastewater estimate would include constructing additional 12-inch force main capacity between the landfill and Selvitz Road, where the 6- inch main may be limiting at the build -out of Flatwoods. Cc: FPUA Board