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HomeMy WebLinkAbout2623 Agreement between COS & Lake Jessup Groves (from 1992)AGREEMENT THIS AGREEMENT is made and entered into on this— — day of� , 1992, between the CITY OF SANFORD hereinafter referred to as "CITY", a municipal corporation organized and existing under the laws of the State of Florida, and LAKE JESSUP GROVES, INC., hereinafter referred to as "LTG", a Florida Corporation, whose address is 312 West First Street, Suite 401, Sanford, Florida 32771. WITNESSETH: That the parties hereto for and in consideration of the mutual covenants herein contained and in consideration of the payments and undertakings herein mentioned, made and to be made, have respectively promised unto and covenanted and agreed each with the other as follows: 1. Premises. In consideration of the covenants and agreements hereinafter made, reserved and contained on the part of LJG to be observed and performed, the CITY leases to LTG and IJG rents from the CITY, that certain Two Hundred and Seventy (270) acre parcel of real property located in Seminole County, Florida, and more particularly described in Exhibit "A", attached hereto and made a part hereof by reference, and shall hereinafter be referred to as the "Subject Property". The Subject Property shall be used by LTG for the operation of a citrus grove as more particularly described herein below. 2.. Use of Reclaimed Water on Subject Property. (a) The Subject Property comprises a total of two hundred and seventy (270) acres. LJG shall utilize reclaimed water supplied by the CITY on approximately Two Hundred and Thirty -Five (235) acres of citrus trees. Said citrus trees are designed to be planted in phases. Phase I shall consist of 1 approximately 79 acres of citrus trees to be planted by IJG in November of 1992 or as late as March of 1993 if allowed by the Florida Department of Environmental Regulations (FDER). Phase II shall consist of approximately 39 acres of citrus trees to be planted by LJG no later than the year 2001. Phase III shall consist of approximately 39 acres of citrus trees to be planted by LJG no later than the year 2004. Phase IV shall consist of approximately 79 acres of citrus trees planted by LJG no later than the year 2006. The CITY and LTG expressly acknowledge and agree that the CITY has obtained a permit from the FDER for the planting and operation of a 270 acre citrus grove on the Subject Property. The CITY agrees to make all diligent efforts to change or amend the FDER permit to allow the citrus trees to be planted in accordance with the above -stated schedule of phases. If the FDER will not allow the citrus trees to be planted according to the above -stated schedule of phases, then LJG shall have the option to abide by the existing requirements of the FDER permit or terminate this Agreement. It shall be solely within the discretion of IJG to determine which portion of the Subject Property shall be planted for each phase. LJG agrees to plant citrus trees on the Subject Property as provided above, upon certification by Conklin, Porter and Holmes Engineers, Inc., that FDER Project 586110 conforms to the plans and specifications for said project. The Subject Property shall be used by LTG for a citrus grove. LTG will not permit the Subject Property to be used for any other unauthorized purpose or for any unlawful purpose. (b) In the event LTG fails to plant the Subject Property in accordance with the above -stated schedule of phases and as required by the FDER if IJG has opted to comply with the 2 FDER requirements, then the CITY shall be entitled to terminate this Agreement as to any and all portions of the Subject Property not planted with citrus trees by IJG. LJG shall have the right to plant the remaining unplanted portion of the Subject Property with citrus trees within one hundred and eighty (180) days after receipt of written notice from the CITY to LJG that the CITY intends to terminate this Agreement as to any and all such unplanted portions of the Subject Property. If LJG decides to plant the remaining unplanted portion of the Subject Property, LJG shall provide written confirmation within thirty (30) days of receipt of said Notice of Intent to Terminate Agreement from the CITY, that said citrus trees for the unplanted portion of the Subject Property have been ordered and that the required deposit, if any, has been paid. If the above required written confirmation that said citrus trees have been ordered and the required deposit has been paid is not received by the CITY from LJG within thirty (30) days of LJG's receipt of the CITY's Notice of Intent to Terminate Agreement, then this Agreement shall be terminated as to any and all unplanted portions of the Subject Property. Additionally, the CITY and LJG expressly acknowledge and agree that the CITY has the right at any time to fund the planting of citrus trees on the remaining unplanted portion of the Subject Property. The planting and maintenance of said CITY funded citrus trees shall be provided by LTG with the terms of ownership and maintenance of said citrus trees to be negotiated in good faith by both parties at that time. (c) LJG shall accept and use reclaimed water produced by the CITY as more fully and specifically described herein. It is anticipated, but not warranted, that delivery and 3 use of reclaimed water will commence in November of 1992. (d) LJG shall use reclaimed water delivered by the CITY for citrus irrigation and citrus frost protection, except that use of the reclaimed water shall be consistent with all local, state and federal regulations. In no event will LJG discharge reclaimed water directly to surface waters of the State of Florida without written authorization from the Florida Department of Environmental Regulation ("FDER") and any other applicable agency. LJG may only apply reclaimed water in a manner authorized by the EPA, the FDER and the CITY on the Subject Property. LJG will take all reasonable precautions, including signs and labeling, to prevent confusion between reclaimed water sources and other water sources. 3. Term of Aareement and Effective Date. This Agreement shall become effective immediately upon the date which this Agreement is last signed by either the CITY or LJG. The term of this Agreement shall be for a period of twenty-five (25) years commencing upon completion of the planting of Phase I . 4. Citrus Expertise Reauired by LJG. The CITY recognizes and acknowledges the requisite citrus expertise of LJG as currently comprised of the following officers or directors: Jeffrey C. Bales, George B. Wallace, G. Kurt Lingle, Joe B. Tramell, Joe Kurimai, Jr. LJG agrees to maintain, at all times at least one experienced citrus grower as an officer or director of LTG. 5. Citrus Trees. The CITY shall have the right to hire a citriculturist to inspect trees prior to LJG's purchase contract and make periodic inspections prior to shipping while the trees are being grown. The root stock and variety shall be reviewed. The order shall specify type of nursery system, 4" or 4 6" citri-pot or soil grown bare root -nursery trees. Trees shall average 3/8" in diameter, one inch above the bud union, with bud union allowing a 6" - 8" planting height above the soil. Because tree wrap will be installed, the trees shall be nursery pruned to where the lower scaffold limbs are approximately 14" above the soil. Upper foliage shall be pruned or not pruned per citriculturist recommendation. The trees shall be registered and certified. Delivery date and price, F.O.B. nursery, or delivery to planting site shall be specified. The nursery shall have at least 5 years experience in the industry and be able to furnish the CITY suitable references. 6. Payment to CITY: Annual Audit. (a) For each phase, LJG agrees to pay annually to the CITY fifteen percent (15%) of the net profits earned by WG from the operation of the Citrus Grove on the Subject Property after LJG has recouped its initial investment. Said annual payments to the CITY shall be made by LJG within ten (10) days after completion of LJG's annual audit. For purposes of this Agreement, "initial investment" shall be comprised of the following costs: 1) actual cost of trees and planting for Phases I, II, III, and IV; 2).installation of micro -jets as to Phase I only; 3) annual maintenance for planted phases for each year prior to the first year of marketing citrus fruit. For purposes of this Agreement, "net profits" shall be defined as the total revenues earned or received by LJG from whatever sources including, but not limited to, all sources of insurance proceeds, or federal or state relief received by LJG minus operating and maintenance expenses and minus reasonable out of pocket expenses 5 incurred by LJG for general administrative costs. For purposes of the is Agreement, "operating and maintenance expenses" shall be comprised of the following costs: 1) pruning 2) mowing, 3) fertilizing, 4) spraying, 5) irrigation, 6) annual resetting of approximately 3-4% of dead trees, and 7) ordinary and necessary expenses in accordance with good agricultural practice. The total grove maintenance expense shall not exceed S750 per planted acre per vear which shall be adiusted every 5th vear of the lease for inflation. taking into consideration changes in the Consumer Price Index (C.P.I.) as well as increases in the published rates of the Indian River Caretakers Association. costs and fees. For purposes of this Agreement, "general administrative costs" shall be comprised of the following costs: 1) legal, 2) accounting, 3) secretarial, 4) insurance, 5) office supplies, 6) taxes, fees and licenses and 7) other ordinary and necessary miscellaneous expenses in accordance with good business practices but total "general administrative costs" shall not exceed 15% of grove operating andmaintenance expenses. The parties agree that depreciation or amortization shall not be considered an expense or cost for purposes of calculating "net profits." The parties agree that salaries or benefits for LIG's officers, directors or shareholders that are unrelated to actual grove maintenance and that salaries, benefits or expenses representing an amount paid to any person, firm, corporation or other entity related to LJG's officers, directors or shareholders which are in excess of the amount which would have been paid in the absence of such relationship shall not be considered an expense or cost for purposes of calculating "net profits." 6 (b) Net profits, initial investment, total revenues, operating and maintenance expenses and general administrative costs hereinabove specified shall be determined annually by a certified audit according to GAAP prepared by a licensed C.P.A. and shall be furnished to the CITY by LJG at IJG's sole expense. Said audit shall be delivered annually to the CITY within sixty (60) days of the end of the fiscal year for LJG. A copy of LTG's Federal Income Tax Return shall be filed with the CITY by its due date. The records of LJG relating to said annual audit shall be open for inspection, copy and audit by the CITY upon reasonable notice to LJG in such a manner as not to disrupt the business operations of LJG. 7. Right of First Refusal. The CITY grants to LTG upon expiration of the term of this Agreement , if LJG is not in default under the terms of this Agreement, the first right of refusal to lease the Subject Property if the CITY decides to lease said property. Further, the CITY grants to LJG upon expiration of the terms of this Agreement, if LJG is not in default under the terms of this Agreement, the first right of refusal to purchase the Subject Property if the CITY decides to sell said property. Nothing contained herein shall be construed to obligate the CITY to lease or sell the Subject Property at the termination of this Agreement. 8. Installation of Subsurface Comnonents of Irrigation System. The CITY shall purchase, at its sole cost and expense, the surface and subsurface components of the Micro -Jet Irrigation System; herein after referred to as the "Irrigation System." The CITY shall install and maintain, at its sole cost and expense, the subsurface components of the Irrigation System on the Subject Property as provided for in the drawings and technical 7 specifications (Plans) of the CITY. Said Irrigation System generally includes, but is not limited to, the pumping station, subsurface pipes, valves, freeze protection holding ponds, grove staging area with filtration and fertigation system and storm -water management system. Any damage caused to the Irrigation System as a result of the acts, omissions or negligence of LJG, its agents, employees, officers or invitees shall be repaired by the CITY at the sole cost and expense of LJG. 9. Installation of Surface Components of Irrigation System. LJG shall install, at its sole cost and expense, CITY provided surface components of the Irrigation System on the 90 acre track designated as Phase I by LTG and the CITY shall pay LTG for the installation of the surface components of the Irrigation System on the 180 acre tracks designated as Phases II, III and IV by LTG. All surface components of the Irrigation System shall be installed by LJG sufficiently in advance so that reclaimed water will be received and used on the Subject Property within thirty (30) days of receipt of written notice from the CITY that reclaimed water deliveries shall commence. Said surface components of the Irrigation System consist of polyethylene hose laterals and micro -jets assemblies. The CITY shall have the right to inspect the installation of the surface Irrigation System as it progresses. The CITY shall timely notify LJG of disapproval or rejection of any work that is not in accordance with the Plans; or if their work is otherwise found unsatisfactory, faulty or defective; or if their work does not otherwise meet the requirements of any inspection, test or approval required to be made. The CITY will also notify LJG of work that should be corrected; or which requires special 8 testing, inspection, or analysis; or all or any of these in combination. LJG shall promptly act to ensure that LJG takes the requisite action in order to comply with the CITY's direction to LJG. Upon final approval of the installation of the surface components of the Irrigation System by the CITY, LJG shall operate and maintain said system. The CITY shall pay LJG for installation of the surface Irrigation System for Phases II, III, and IV at $150.00 per acre. Additionally, the CITY agrees to pay LJG for the continuing maintenance of the unplanted portions of the subject property at $60 per acre per year thereafter until said property is planted with citrus trees or this Agreement is terminated. LJG,s continuing maintenance of the unplanted portions of the subject property shall include, but not be limited to maintaining satisfactory operation of the micro -jet system, maintaining the soil strip herbicided for the micro -jets and keeping the grass mowed. 10. Alternate Water Source. LJG may apply for a consumptive well permit for an on -site well to be used as a backup water supply for freeze protection and spray irrigation in the event that CITY reclaimed water is not available. No such backup water source shall be utilized by LJG unless or until the CITY reclaimed water supply is reduced or eliminated. To the extent that CITY reclaimed water is available, LJG shall utilize the CITY reclaimed water before the well water. If permitted by the FDER, LJG may hook up said well to the Irrigation System. LJG shall be responsible for all costs and expenses associated with the construction, maintenance and repair of said well and for obtaining all required permits. LTG expressly agrees to allow the CITY to utilize said well to keep the CITY freeze 9 protection ponds full. Upon termination of this Agreement, said well shall become the property of the CITY and revert to the CITY in fee simple absolute without any payment to LJG for same. 11. Maintenance of Irrigation System. LJG shall be responsible for the routine maintenance of the surface Irrigation System including, but not limited to, the micro -sprinklers, polyethylene lines and tubings using spare part materials initially to be provided by the CITY and then at the sole expense of LJG. The CITY shall maintain the subsurface irrigation components, valves, switches, pump stations, and freeze protection holding ponds. 1JG shall be responsible for monitoring, flushing and cleaning the filters in the Irrigation system. The CITY shall be responsible for replacement of said filters as needed. 12. Volume of Water. (a.) LTG expressly agrees to accept and use from the CITY a volume of .9 million gallons daily (MGD ) of reclaimed water on the Subject Property without cost to LTG resulting in an annual use of the volume of 328.5 million gallons of reclaimed water on the Subject Property. The CITY may, at its sole discretion and cost, install appropriate meters so that the volume of reclaimed water used by IJG may be monitored. (b) Both parties recognize that adverse weather conditions may necessitate modification of the volume (q 12 � reclaimed water established in Paragraph -_-It(a) on a temporary basis. LJG shall have the right to temporarily restrict or refuse the use of reclaimed water to be delivered in the event of adverse weather conditions. Both parties also recognize that adverse weather conditions may result in a need for reclaimed 1� 4 water greater than the volume set forth in Paragraph �3(a). LJG� 10 shall have the right to temporarily draw additional water, subject to availability of reclaimed water supplies, in the event of adverse weather conditions. Notice of the exercise of these rights by LJG shall be provided in writing to the CITY. LJG expressly agrees that the exercise of these rights shall not result in a change to the annual use of the volume of 328.5 million gallons of reclaimed water on the Subject Property. (c) If the CITY's storage, transmission or distribution system fails, then delivery of reclaimed water under the requirements of this Agreement may be interrupted or limited in quantity. The CITY shall not be held responsible for any damage or loss of any type whatsoever sustained by LJG as a result of the reduction, interruption cessation or the delivery of reclaimed water by the CITY to LJG. (d) In the event of a change in existing regulations promulgated by the FDER concerning the use or distribution of reclaimed water for citrus irrigation and freeze protection, or in the event of changes in technology, or in the event of any change in the CITY's need to provide the quantities of water established in Paragraph 11(a), herein, then 1) the CITY shall give LJG no less than six (6) months notice of any anticipated reduction in water supplied to LJG; 2) the CITY shall cooperate with LJG in applying for a consumptive use permit for an on -site well in order to maintain the irrigation/freeze protection needs of LJG as agreed in Paragraph 10 herein; 3) the CITY may decrease the volume of reclaimed water supplied to LJG, but shall not reduce said supply of reclaimed water for spray irrigation purposes below the amount of 11 0.3 MGD unless provided otherwise herein; and 4) the CITY shall continue to provide the quantity of reclaimed water as provided in Section 1.06 of the Project Manual Master Pump Station and Grove Irrigation System of Site 10, for the City of Sanford, Contract III, Volume 1, for freeze protection purposes to IJG for the remaining term of this Agreement unless provided otherwise herein; and 5) the CITY shall not be held responsible for any damage or loss of any type whatsoever sustained by LTG as a result of the reduction, interruption or cessation of the delivery of reclaimed water by the CITY to LTG. 13. Reclaimed Water Oualitv. The reclaimed water delivered by the CITY will meet all applicable local, state and federal water quality regulations for reclaimed water for citrus crop irrigation. If the reclaimed water fails to meet said FDER water quality regulations, then the CITY shall immediately notify LTG and LTG shall immediately cease irrigation of the Subject Property. 14. Improvements. The parties expressly acknowledge and agree that LTG shall at its sole cost and expense have the right to construct in strict compliance with all applicable local, state and federal regulations a storage facility, a mixing facility and a pole barn. The actual location of said structures shall be subject to CITY approval, which approval shall not be unreasonably withheld. LTG shall obtain at its sole cost and expense all required permits and the CITY shall cooperate in the FDER permitting process to the extent necessary. LTG shall not construct any other capital improvement, structure or building on the Subject Property without written approval from the City Commission and compliance with all local, state and federal laws. 12 Upon termination of this Agreement, all improvements, building, and structures constructed by LJG on the Subject Property shall become the property of the CITY and revert to the CITY in fee simple absolute. LJG shall be entitled to receive from.the CITY the then fair market value, if any, of the improvements specifically approved by the city commission in writing excluding the storage facility, mixing facility and pole barn already approved hereinabove. 15. Maintenance of Improvements. LJG shall maintain the appearance of all driveways, parking areas, entrance and exit ways and the storage and office building on the Subject Property all as to ordinary wear and tear taking into consideration the nature of the citrus grove operation. LJG shall be responsible for repair of said driveways, entrance and exit ways, parking lots and storage and office building required as a result of the acts, omissions or negligence of LJG, its agents, employees, patrons, contractors, licensees or invitees. LJG shall maintain and repair all structures and improvements constructed on the Subject Property by LJG. The CITY shall repair or replace, as needed, the driveways, parking areas, entrance and exit ways and storage and office building caused by normal wear and tear. 16_ Security Fence. LJG shall maintain and repair as necessary the CITY installed security (deer) fence. LJG shall have the authority to remove or eliminate pests jwhich breach.lsad security (deer)1fencelas provided by law. 17. Access to Pump Station. The CITY shall provide a key to LJG to the pump station for LJG to regulate and control the timing of the spray irrigation, freeze protection and spray fertigation to the Subject Property. LJG shall contact the CITY 13 when it is necessary for the CITY to make regular and emergency repairs to the Irrigation System. The CITY shall provide LJG with the names and telephone numbers of CITY repairmen. LTG shall not make any regular or emergency repairs to the pump station. The CITY shall promptly make all necessary repairs taking into consideration LJG's need to provide freeze protection. When it is necessary to utilize CITY employees or agents to repair the pump station, LJG shall reimburse the CITY for said expenses if said repairs are made after regular business hours or during CITY holidays. 18. Destruction of Citrus Trees. As to each phase of the planting of citrus trees on the Subject Property during the term of this Agreement, LJG shall be required to replant all citrus trees that have been destroyed by freeze, pestilence, disease, natural disaster or act of God to the extent LJG has recovered its initial investment from total revenues as defined in Paragraph 6, herein and/or to the extent of any insurance proceeds received by LJG for loss of citrus trees. Further, LJG agrees to remove and dispose of, at its sole cost, any and all trees that have been destroyed by freeze, pestilence, disease, natural disaster or act of God. LJG shall procure, to the extent reasonably available, insurance to protect against damage to or destruction of the citrus trees on the subject property. 19. Good Agricultural Practices. LJG shall take good care of the Subject Property, its improvements and manage and operate the citrus grove located thereon in a creditable manner, following the citrus grove practices recognized as best in the community, and suffer no waste during the term of this Agreement. LTG shall procure crop insurance, to the extent reasonably available, against the risk of citrus fruit loss, damage or 14 destruction during the term of this Agreement. 20. Indemnification. LTG, at its sole cost and expense, agrees to defend, indemnify and save harmless the CITY and its officers, employees and agents from and against any and all claims, costs, demands, expenses, fines, losses, liability, damages, injury, actions or causes of action whatsoever in connection with or arising from or out of the operation, occupancy or use of the Subject Property or the sale or use of fruits raised thereon, occasioned wholly or in part by any acts, negligence or omissions of LTG, its agents, contractors, employees, invitees, licensees or others. 21. Lien on Citrus Trees and Fruit. LJG hereby gives the CITY an express lien upon all citrus trees located on the Subject Property and upon all citrus fruit growing and to be grown thereon, as security for any and all indebtedness due the CITY by LJG as provided by any of the terms, conditions and provisions of this Agreement. 22. Subrogation. The CITY agrees to subrogate in favor of LTG, to the extent necessary, any claims against the contractors for breach of contract, implied and express warranty for any and all damages suffered by LTG to the extent allowed by law. 23. Expiration or Breach of Agreement. (a) In the event of a breach or default by LTG in the performance of any of the covenants, conditions, or provisions of this Agreement, then the CITY .may give LTG written notice of said breach or default and if LTG does not cure said breach or default within sixty (60) days after receiving said notice, then the CITY may terminate this Agreement on not less than thirty (30) days notice to LJG, and/or may seek damages as 15 provided by law, and on the date specified in said notice of termination, the term of this Agreement shall terminate. When this Agreement has been terminated by the CITY for breach or default by IJG or when the term of this Agreement has expired as provided in Paragraph 3 , herein, then LJG shall quit and surrender the Subject Property, all buildings, improvements, wells, structures, citrus trees and fruit thereon, to the CITY and remove LTG's personal property. The CITY may at any time thereafter resume possession of the Subject Property, and all buildings, structures, improvements, wells, and citrus trees and fruit thereon put in at the expense of IJG shall be the property of the CITY and shall' remain upon and be surrendered with the Subject Property as a part thereof at the termination of this Agreement without any payment to LTG for same. (b) In the event of a breach or default by the CITY in the performance of any of the covenants, conditions, or provisions of this Agreement, then IJG may give the CITY written notice of said breach or default and if the CITY does not cure said breach or default within sixty (60) days after receiving said notice of breach or default, then LTG may terminate this Agreement on not less than thirty (30) days notice to the CITY and/or may seek damages as provided by law. (c) Except as may otherwise be specifically provided herein, no action or failure to act by the CITY or LTG shall constitute a waiver of any right or duty afforded to them nor of their right at all times in the future to insist upon the full and complete performance of each and every term, covenant, condition and provision of this Agreement, nor shall any such action or failure to act, constitute an approval or acquiescence in any breach hereunder. 16 24. Insurance. The CITY shall not be held responsible or liable to LJG, LJG's employees, patron, independent contractors, invitees, third party participants, licensees or others for any damage to personal property or for any personal injury caused by the acts, omissions, or negligence of LJG, its employees, patrons, independent contractors visitors or others, or by catastrophe. LJG, at its own cost, shall obtain and maintain during the term of this Agreement, liability insurance written by an insurance company or companies rated "A" or higher by A.M. Best, licensed to-do business in the State of Florida, for the benefit of LTG, which will fully protect LTG against any and all liability for property damage and personal injury suffered by reasons of said aforedescribed acts and use of the Subject Property, with minimum limits of $1,000,000 to apply in the case of one person being injured or killed, $5,000,000 to apply in the case of bodily injuries to or the death of more than one person as the result of any one accident or disaster, and $1,000,000 to apply in case of property damage. LJG shall furnish to the CITY copies of such insurance policies and certificates, and of the renewals thereof, and said policies and certificates shall name the CITY as an additional named insured and provide that the CITY is to be given at least 30 days advance written notice of any changes, cancellations or failure to renew any policy. LTG shall procure workman's compensation insurance coverage as required by law. 25. Letter of Credit. LJG shall provide a letter of credit to the CITY equal to the estimated cost to purchase and plant the citrus trees in Phase I with all draws from said letter of credit to be made by the CITY for the costs of the purchase and planting of citrus trees in Phase I as they occur or, in the 17 alternative, IJG, may place $50,000 in a bank within 30 days after the effective date of this Agreement, which sum shall be used by LJG to purchase and to plant the citrus trees in Phase I. Should LTG fail to plant Phase I, except as provided for in Paragraph 2, herein, then the CITY may utilize said funds for the purchase and,planting of said trees or as liquidated damages for the failure of LJG to purchase and plant as agreed to herein. 26. Utilities. LTG agrees to pay all charges for electricity for the maintenance and storage building, or any LTG installed structures, or buildings as provided for in Paragraph 13, herein, and trash and garbage removal, as and when said charges become due and payable. LTG shall not permit any lien to be assessed against the Subject Property for failure to pay said charges. 27. Inspection and Access to Premises. The CITY, its agents and employees properly identified, shall have the right, at all reasonable times, and upon reasonable notice except for routine maintenance, to enter the Subject Property or any part thereof, to inspect the same, and to carry out any provision of this Agreement. The CITY agrees not to disturb any ongoing operations. LJG agrees to provide the CITY with keys to any locks installed by LJG as are necessary for the CITY to carry out the provisions of this Agreement. 28. Access to out -Parcels. The CITY has agreed and LTG does hereby agree to allow ingress and egress to the approximately seven (7) acre out -parcel (the southerly of the two out -parcels located on Site 10) for use of the out -parcel as one single family residence. Said ingress and egress shall be along the farm road to be installed under the Site 10 Development Plan. Said ingress and egress route shall also be allowed to be 18 utilized as a route for utilities to service the single family residence. The CITY reserves the right to approve the exact installation of the utilities and the CITY will coordinate same with IJG prior to approval of the installation of said utilities. The owner or lessee of said single family residence shall have no right to use any farm road within Site 10 other than that portion of the farm road necessary for direct travel between the single family residence and State Road 46. With respect to the larger out -parcel located on Site 10, the CITY will coordinate with LJG prior to approving any egress and ingress routes to said larger out -parcel. 29. Assignment and Subletting. LJG shall not, without first obtaining the prior written consent of the City Commission, which consent shall not be arbitrarily and capriciously withheld, assign this Agreement or sublet the Subject Property or any part thereof, or permit the use of the Subject Property by any party other than LJG its agents or employees. Any assignment, delegation or subletting effectuated without the CITY's prior written consent shall be void and of no legal effect. Consent given by the CITY to any assignment or sublease of this Agreement shall not nullify this provision, and all subsequent assignments or subleases shall be made only subject to obtaining prior written consent of the CITY as required in this Paragraph. 30. Disclaimer of Representations and Warranties by CITY. The CITY does not represent or warrant that the volume of reclaimed water delivered shall increase the productivity of the land described in Exhibit "A" nor result in changes to the land, citrus trees or vegetation of any kind. LJG shall secure independent advice and shall make an independent judgment as to the use of the volume of water described in Paragraph 12, herein. 19 31. Excuse from Performance by Governmental Acts. If for any reason during the term of this Agreement, local, regional, state or federal governments or agencies shall fail to issue necessary permits, grant necessary approvals, or shall require any change in the operation of the treatment, transmission and distribution systems or the application and use of reclaimed water by the CITY, then to the extent that such requirements shall affect the ability of any party to perform any of the terms of this Agreement, the affected party shall be excused from the performance of this Agreement. A new Agreement shall be negotiated, if possible, by the parties hereto in conformity with such permits, approvals, or requirements. 32. Disclaimer of Third Partv Beneficiaries. This Agreement is solely for the benefit of the formal 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. 33. Records of LJG. The CITY, or its agent, at its option, shall have the right, upon written notice to LJG to inspect all books or records kept in conjunction with the use of the Subject Property, including without limitation, any work performed by employees of 1JG, licensees, invitees or independent contractors and records of proceeds from the sale of citrus fruit. as set forth in Paragraph 6 herein. LJG shall produce such material within a reasonable time after the CITY requests such material. 34. Taxes. LTG shall pay all personal property, real property (ad valorem) and corporate taxes whether now existing or imposed in the future. LJG shall pay such taxes in full before becoming delinquent. LJG, at its sole cost and expense, shall 20 have the right to contest, in good faith, the validity of any real property taxes levied against the Subject Property. 35. LJG's Environmental Representation. (a) IJG represents and warrants that any handling, . transportation, storage, treatment or use of contaminants, pollutants, hazardous or toxic substances on the subject property by LJG, its agents, employees or contractors will be in compliance with all applicable federal, state and city laws, regulations and ordinances. (b) LTG agrees to defend, indemnify and save harmless the CITY and its officers, employees and agents from all claims costs, damages, demands, expenses, fines, judgments, liabilities and losses, including reasonable attorneys' fees and costs, which arise during or after the term of this Agreement from or in connection with the presence or suspected presence of contaminants, pollutants, hazardous or toxic substances in the soil or groundwater on or under the Subject Property from the breach of Subparagraph 35 (a), hereinabove. (c) LTG shall carry throughout the term of this Agreement, with a solvent and responsible company, insurance with, coverage for the Subject Property sufficient to cover LJG's indemnification obligations in Subparagraph 35 (b), hereinabove, if reasonably available. 36. Liens. LJG shall not allow any liens of any kind or nature to attach against the Subject Property during the term of this Agreement, including, but not limited to contractors, subcontractors, taxes, fines, penalties, suppliers and laborers employed by LTG. LJG agrees to indemnify the CITY for all costs, including reasonable attorneys' fees, which are required to be expended by the CITY to litigate, satisfy, cure, bond -off, or 21 settle any such claims so created by LJG. 37. Severability. If any part of this Agreement is found invalid or unenforceable by any Court, such invalidity or unenforceability shall not affect the other parts of this Agreement if the rights and obligations of the parties contained therein are not materially prejudiced and if the intentions of the parties can continue to be effectuated. To that end, this Agreement is declared severable. 38. Land Use Approvals. This Agreement shall not be construed as granting or assuring or indicating any future grant of any land use or zoning approvals, permissions, variances, special exceptions, or rights with respect to the real property described in Exhibit "A" hereof. 39. Applicable Law and Venue. This Agreement and the provisions contained herein shall be construed, controlled, and interpreted according to the laws of the State of Florida and venue for any action shall be located in Seminole County, Florida. 40. Address of the Parties. For purposes of this Agreement, the address of the CITY is: City Manager CITY OF SANFORD Post Office Box 1788 Sanford, Florida 32772-1788 For purposes of this Agreement, the address of LJG is: LAKE JESSUP GROVES, INC. George B. Wallace 312 West First Street Suite 401 Sanford, Florida 22 The CITY and LJG may, from time to time, change the address to which notices should be sent upon written notice to the other party. The change of address shall be deemed effective five (5) days after it is mailed, postage prepaid to the other party. 41. Captions. Captions throughout this instrument are inserted for convenience and reference only, and the words contained therein shall in no way be held to explain, modify, amplify, or aid in the interpretation construction or meaning of the provisions of this Agreement, or as a limitation of the scope of the paragraph to which they refer. 42. Entire Agreement. This Agreement contains and embodies the entire agreement of the parties hereto, and no representations, inducements or agreements, oral or otherwise, between the parties not contained and embodied herein shall be of any force or effect, and the same may not be modified, changed or terminated in whole or in part, or in any manner other than by agreement in writing duly signed by all the parties hereto. 43. Time of Essence. It is understood and agreed between the parties hereto that time is of the essence for all the terms, provisions, covenants and conditions of this Agreement. 44. Mediation Required. The parties agree that no legal action related to this Agreement shall be brought in any court of competent jurisdiction in Seminole County, Florida, unless and until the parties have first made good faith efforts to resolve the dispute(s) by mediation. 45. Attorney's Fees. In any action or proceeding arising out of this Agreement, the prevailing party shall be entitled to reasonable attorney's fees and costs. 23 46. Agreement Drafted by Both Parties. This Agreement has been drafted by both parties and both parties acknowledge and agree that they have had their respective attorneys review same prior to execution by the undersigned representatives. 47. No oral Modifications. This Agreement may not be modified except by an instrument in writing, signed by the ,duly authorized representatives of each party hereto. 48. Authority to Sian Aareement. The City Commission of the CITY OF SANFORD has approved this Agreement by appropriate action and has authorized its execution by the undersigned representative. It is further warranted, that LJG is a corporation and that LJG has by resolutions authorized the undersigned representative to execute this Agreement so as to bind LJG. 49. Miscellaneous. Nothing contained herein shall be construed or interpreted as creating a relationship between the parties other than that of Landlord and Tenant. 24 ATTEST: IT-TY CLERK STATE OF FLORIDA) THE CITY OF SANFORD� By::,�u Title: MAYOR Date: February 25, 1992 LAKE JESSUP GROVES, INC., a Florida Corporation By: Title: / o�,�.✓� Date: �pZ COUNTY OF SEMINOLE) _ The foregoing Agreement was acknowledged before me this �S day of FEP,�P�:f7,�c( , 1992, by Mayor Bettye Smith, City of Sanford, who is personaly known me and/�who did take an oath. .Cl�.c� i Notary Pdblic State of Florida at Large My Commission Expires: STATE OF FLORIDA) 4' o, SABRINA BENTON i ANary• atb1c,1ale of Fk W COUNTY OF SEMINOLE } is My come, a.7116sDec. 30. 1095 No. CC 171979 The foregoing Agreement was acknowledged a ore me this —7- day of 1992, by George Wallace, President of the Corporation of LAKE JESSUP GROVES, INC., who is personally known to me and who did take an th. Notary Pu lic State of Florida at Large My Commission Expires: �t" •c SABRINA BENTON Y � Notary Pub1c, Slats of Fludda My corms. expires Doc. 70, 1995 No. CC 17197.) 25 EXHIBIT A Groves 1-20, the Grove Operation Area with improvements and the Secondary Staging Area as reflected on Sheet No, 17 of the City of Sanford, Florida, Water Reuse System, Contract III, Master Pump Station and Grove Irrigation System, Irrigation and Stormwater Plan at Site 10 as prepared by Conklin, Porter and Holmes Engineers, Inc., dated June, 1990, Job No. 50602.51 and including all area contained within the proposed electric and chain linked fence surrounding same. 26 r� vwoLi $*Kvvts. 11Y CQ N— 413 West First Street l Sanford, Florida 32771 Phone (407) 323-3660 `-` Fax (407) 323-2475 099 NG 20 PH W 447�vl� August 17, 1998 i j( PJG 1 918 City of Sanford iI Post Office Box 1788 Sanford, Florida 32772-1788 Attn: William A. Simmons, City Manager Re: Lake Jessup Groves Care - Modification Agreement Dear Mr. Simmons: Enclosed please find one of the fully executed Modification To Agreement between the City of Sanford and Lake Jessup Groves, Inc. I have retained the other fully executed Modification To Agreement for my files. If you have any questions concerning this matter please do not hesitate to contact me. Very truly yours, Lake Jessup Groves, Inc. L5Ge�orge B. Wallace, President GBW/ddl Enclosures cc. Kurt Lingle Jeff Bales Joe Tramell MODIFICATION TO AGREEMENT Modification to Agreement between the CITY OF SANFORD, (hereinafter referred to as "CITY') Landlord and LAKE JESSUP GROVES, INC., (hereinafter referred to as "LJG", Tenant, dated the 25"' day of February 1992, parties agree as follows: 1. Paragraph 2(a) shall be modified to read as follows: °(a) The Subject Property comprises a total of two hundred and seventy (270) acres. LJG shall utilize reclaimed water supplied by the CITY on approximately Two Hundred and Thirty -Five (235) acres of citrus trees. Said citrus trees are designed to be planted in phases. Phase I shall consist of approximately 79 acres of citrus trees to be planted by LJG in November of 1992 or as late as March of 1993 if allowed by the Florida Department of Environmental Regulations (FDER). Phase II shall consist of approximately 39 acres of citrus trees to be planted by LJG no later than the year 2003. Phase III shall consist of approximately 39 acres of citrus trees to be planted by LJG no later than the year 2006. Phase IV shall consist of approximately 79 acres of citrus trees planted by LJG no later than the year 2008. The CITY and LJG expressly acknowledge and agree that the CITY has obtained a permit from the FDER for the planting and operation of a 270 acre citrus grove on the Subject Property. The CITY agrees to make all diligent efforts to change or amend the FDER permit to allow the citrus trees to be planted in accordance with the above -stated schedule of phases. If the FDER will not allow the citrus trees to be planted according to the above -stated schedule of phases, then LJG shall have the option to abide by the existing requirements of the FDER permit or terminate this Agreement." -1- k It 2. Paragraph nine (9) (the third unnumbered paragraph thereof) shall be modified as follows: "Upon final approval of the installation of the surface components of the Irrigation System by the CITY, LJG shall operate and maintain said system. The CITY shall pay LJG for installation of the surface Irrigation System for Phases 11,111, and IV at $150.00 per acre. Additionally, the CITY agrees to pay LJG for the continuing maintenance of the unplanted portions of the subject property at $75.00 per acre per year thereafter until said property is planted with citrus trees or this Agreement is terminated. LJG's continuing maintenance of the unplanted portions of the subject property shall include, but not be limited to maintaining satisfactory operation of the micro -jet system, maintaining the soil strip herbicided for the micro -jets and keeping the grass mowed." 3. The above modifications shall become effective April 1, 1998. ALL ELSE REMAINS THE SAME. Landlord: CITY OF SANFORD Attest: At R. Dough ty, "tyClerk -2- Tenant LAKE JESSUP GROVES, INC. By: _ eorge B. Wallace, President Date. li . 1998 SECOND MODIFICATION TO AGREEMENT This SECOND MODIFICATION TO AGREEMENT, entered into on this sf day of f 6CIf;.l13,r,Y 2003, between the CITY OF SANFORD, (hereinafter referred to as "CITY"), a municipal corporation, and LAKE JESSUP GROVES, INC., (hereinafter referred to as "LJG'), (collectively the parties) shall modify the AGREEMENT between the parties dated February 25, 1992, as modified by that certain MODIFICATION TO AGREEMENT dated August 1, 1998 as follows: RECITALS WHEREAS the parties recognize that there has been a substantial deterioration in the returns and the financial risks in the citrus industry and particularly as to the growers of citrus and; WHEREAS the original AGREEMENT between the parties contemplated returns from the sale of citrus by LJG which would be sufficient to fund a phased plant out of the entire 270 acres of the property leased to LJG pursuant to said AGREEMENT; and WHEREAS to date LJG has not recovered its initial investment nor realized profits which would justify the current schedule of further planting as provided for under the AGREEMENT as previously modified; and WHEREAS the parties have agreed to allow other uses for the currently unplanted portion of the leased premises to wit: growing and selling sod therefrom; and WHEREAS the parties have agreed to a revenue sharing arrangement for said operation different and distinct from the Rental and Revenue sharing requirements for citrus it is therefor covenented and agreed that the AGREEMENT between the parties is modified as follows: 1. Paragraph (2)(a) of the AGREEMENT, as modified. shall no longer require a set time schedule by which LJG shall be required to plant further phases of citrus. LJG may plant the remaining portion of the leased premises, in phases as previously agreed, as and when economically feasible to due so in the sole determination of LJG. 2. LJG shall continue to seek other revenue generating uses for the remaining unplanted portion of the leased premises, such as the current sod sales, and as for sod sales shall pay CITY, as rent, % of all proceeds derived therefrom. Said payments of rent may be paid directly to the CITY by the sod buyers as and when payments are made_ 3. In the event the sod operation results in an increase in real property taxes assessed on the tease property, each party will be responsible for one-half of any such increase attributable to said sod or non -citrus area operation. 4. The rental and revenue sharing arrangements previously agreed shall remain in full force and effect as to any future citrus plantings and sales. All other terms and conditions of the AGREEMENT and the MODIFICATION TO AGREEMENT not in conflict herewith shall remain in full force and effect_ Landlord: CITY OF NFORD By - Brady Brady Lessard, Mayor Date: -:2 - cP-/ (i 3 Attest: ztPint Name: aiNET R. ov gv6if City Cleric Tenant: LAKE JESSUP GROVES, INC. eorge B. Wallace, President Date: ice_ THIRD MODIFICgTI This THIRD N TO AGREEMENT MODIFICATION TO AGREEMENT, entered into on thi ""� 2003, between the CITY --- day of OF SANFORD, (hereinafter ref "CITY"), a municipal cowration, and LAKE JESSUP GRO referred to as to as `LJG") (Collectively the parties s VES, INC., (hereinafter referred dated F ) hall modify the AGREEMENT between February 25, 1992 as modified by that ce the parties dated August 1 rtain MODIFICATION TO 1998 and SECOND MODIFICATION TO AGREEMENT 21, 2003 as follows; AGREEMENT dated February WHEREAS RE ITgL Pursuant to that certain Agreement eement the parties hereb sub-leasin Y agree that LJG can enter intoto g 9 contracts with various entities for unpianted acres of the groves• the sub-! , and easing of the WHEREAS the Parties agree to the la Palm tree varieties for future resale; and p nt►ng of apprOximately 15 aces of various WHEREAS LJG, in conjunction with Others, approximately 2, 000 Palm Trees, it is therefore; by separate agreements, intend to plant COVENANTED efore; ANDAGREED pursuant to the arran the citrus grove, after the recovery,Bement between the parties for maintenance by LJG, of the and harvesting Cost of the purchase esting o f said , planting, revenue will be Palm trees, fifteen percent (15% paid to the CITY ) of the as rent remaining net as and when Upon Completion of the collected' planting by LJG of the pro maintenance fee Paid each year b pow palm tree area, the to Agreement Y the City (as set forth 9 ment dated August 1 in paragraph (2) of the , 1998) would Mod►fica�jon be reduced by $1,050.00 per year. All other terns and conditions of the AGREEMENT and the previous MODIFICATIONS TO AGREEMENT not in conflict herewith shall remain in full force and effect. Landlord: CITY OF SANFORD By: rady Le , Mayor Date:, CPrs"?it' -:200-3 Attest: Q'd-vi�v • CCU rint Name: Ja�+e 6r•.D©u Gt City Clerk `J Tenant LAKE JESSUP GROVES, INC. By: George B. Wallace, President Date: / -211 ��03 (.c. 3-a1(-i FOURTH MODIFICATION TO AGREEMENT This FOURTH MODIFICATION TO A E ENT, entered into on this day of -'1 c„1 P- _ , 2009, betwe e CITY OF SANFORD (hereafter referred to as "CITY"), a municipal corporation, and LAKE JESSUP GROVES, INC., a Florida corporation (hereafter referred to as "LJG") shall modify certain terms of the AGREEMENT between the parties dated February 25, 1992, as subsequently modified by these MODIFICATIONS TO AGREEMENT dated August 1, 1998; February 21, 2003 and December 22, 2003 respectively, as follows: RECITALS WHEREAS LJG, pursuant to the terns of its AGREEMENT with CITY as previously modified, has planted approximately 4100 palm trees of differing varieties on the leased premises; and WHEREAS some of the varieties may require a growing period exceeding the remaining term of the AGREEMENT between the parties; and WHEREAS it is in the best interest of both parties to extend the current lease term in order for said varieties to fully mature so as to maximize the financial return to both parties; and WHEREAS LJG has invested substantial sums for the planting and maintaining of the leased premises and desires to confirm its rights to either renew the lease at its expiration, (as extended herein) or purchase the property at or before its expiration in order to encourage the further planting and improvement of the property by LJG it is hereby COVENANTED AND AGREED 1. Paragraph 3 of the AGREEMENT between the parties. dated February 25, 1992 is hereby modified to provide for an initial term of thirty-five (35) years commencing upon the completion of the planting of Phase 1. 2. Paragraph 6(b) of the AGREEMENT between the parties is hereby modified to add the following provision: "As an alternative to the annual certified audit described above, LJG will provide to CITY copies of all of its bank statements, deposit slips, cancelled checks and tax returns within ten (10) days of the completion of said tax returns but in no event later than April 15 of each year. The CITY reserves the right, upon review of said documents, to request an audit as described above." 3. Paragraph 7 of the AGREEMENT between the parties dated February 25 1992 is hereby modified in its entirety to provide as follows: "The CITY grants to LJG upon expiration of the term of this AGREEMENT, provided LJG is not otherwise in default under the terms of this AGREEMENT, the first right of refusal to re -lease the Subject Property. Further, the CITY grants to LJG upon expiration of the terms of this AGREEMENT, provided LJG is not otherwise in default under the terms of this AGREEMENT, the first right of refusal to purchase the Subject Property upon a purchase price for the Fair Market Value and other acceptable terms to be negotiated between the parties, in good faith, at the time of the exercise of this right of first refusal. LJG agrees to maintain the entire leased site including the unplanted portions of the subject property. All references to the City agreeing to pay LJG for the continuing maintenance of the unplanted portions of the subject property are hereby deleted from all previous amendments and the original agreement. LJG agrees to properly maintain the entire subject property to include but not limited to maintaining satisfactory operation of the micro jet systems. Maintaining the soil strip herbicide for the microjets and keeping the grass mowed. LJG shall maintain the surface irrigation system including the micro -sprinklers, polyethylene lines/tubing. LJG shall be responsible for maintaining the swales and drainage ditches including, but not limited to mowing and grading." Upon termination of the lease between the parties, LJG shall continue to maintain the caretaking of the palm trees planted on the premises until such time as they reach full maturity and can then be sold. LJG shall also maintain the caretaking, harvesting and selling of the various citrus fruit trees located on the premises. 8. LJG shall assume full responsablitiy for the surface maintenance of the Grove site including the mowing and microjet maintenance of the unplanted portion at no cost to the City for the remainder of the lease term as consideration for the option to purchase the property as provide above. The City shall continue to maintain the irrigation system other than the mircojet and polylines. The City will, upon occasional request from LJG clear the drainage ditches which become over grown in spite of the regular chemical weed control to be assumed by LJG upon the completion of the City's clearing of said ditches. [ SEE ATTACHED FOR SIGNATURES] ALL ELSE REMAINS THE SAME. Landlord: CITY OF SANFORD Linda K hn, Mayor Date: 14— l4- -08 Tenant: LAKE JESSUP GROVES, INC. J George B. Wallace, President c � Date: // z c �'.