HomeMy WebLinkAbout444-Lake Jessup Groves 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). Phasellshallconsistofapproximately
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."
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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 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 $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: Tenant
CITY OF SANFORD LAKE JESSUP GROVES, INC.
Date,~~/, 1998 e~o~r~e B. Wallace, President
Attest:
a~nzet R. DoughtyClerk
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AGREEMENT
THIS AGREEMENT is made and entered into on this~J'~day
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 "LJG", 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 LJG and
LJG 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 LJG for the operation of a citrus grove as more
particularly described herein below.
2. Use of Reclaimed Water on Subiect 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
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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 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 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.
It shall be solely within the discretion of LJG 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 LJG for a citrus grove. LJG will not
permit the Subject Property to be used for any other unauthorized
purpose or for any unlawful purpose.
(b) In the event LJG fails to plant the Subject
Property in accordance with the above-stated schedule of phases
and as required by the FDER if LJG has opted to comply with the
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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 LJG. 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 LJGts receipt of the CITYts 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 st 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 LJG 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
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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 A~reement 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 Rec~/ired 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 LJG.
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
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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. Pa~nnent 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 LJG
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
incurred by LJG for general administrative costs. For purposes
of the is Agreement, "operating and maintenance p ses" shall
ex en
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 ~rove maintenance expense shall not exceed $750 per planted
acre per year which shall be adjusted every 5th year of the lease
for inflation. takin~ 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 and maintenance 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 LJG'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."
(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 LJG'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 LJG'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 LJG 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 Components 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
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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 Irri~ation
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 LJG and the CITY shall pay
LJG for the installation of the surface components of the
Irrigation System on the 180 acre tracks designated as Phases II,
III and IV by LJG. 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
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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. LJG expressly agrees to
allow the CITY to utilize said well to keep the CITY freeze
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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.
LJG 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) LJG 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 LJG 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 LJG may be monitored.
(b) Both parties recognize that adverse weather
conditions may necessitate modification of the volume ~
reclaimed water established in Paragraph~(a) on a tempo ry
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
water greater than the volume set forth in Paragraph~=l(a). LJG
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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 shallnot 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 ll(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 irri~ation purposes below the amount of
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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 LJG 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 LJG as a
result of the reduction, interruption or cessation of the
delivery of reclaimed water by the CITY to LJG.
13. Reclaimed Water Quality. 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
LJG and LJG shall immediately cease irrigation of the Subject
Property.
14. Improvements. The parties expressly acknowledge and
agree that LJG 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. LJG 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. LJG 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.
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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 ~JG. 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 which breach said
security (deer) fence as 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
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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.
LJG 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 0f, 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.
LJG shall procure crop insurance, to the extent reasonably
available, against the risk of citrus fruit loss, damage or
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destruction during the term of this Agreement.
20. Indemnification. LJG, 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 LJG, 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 LJG, to the extent necessary, any claims against the
contractors for breach of contract, implied and express warranty
for any and all damages suffered by LJG to the extent allowed by
law.
23. Expiration or Breach of Agreement.
(a) In the event of a breach or default by LJG in
the performance of any of the covenants, conditions, or
provisions of this Agreement, then the CITY may give LJG written
notice of said breach or default and if LJG 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
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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 LJG 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 LJG~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 LJG 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 LJG 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 LJG 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 LJG 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 LJG 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.
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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 todo business in the State of Florida,
for the benefit of LJG, which will fully protect LJG 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. LJG 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
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alternative, LJG, 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 LJG 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. LJG agrees to pay all charges for
electricity for the maintenance and storage building, or any LJG
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. LJG 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 LJG
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
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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 LJG 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.
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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 Party 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 LJG, 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. LJG 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
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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) LJG 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) LJG 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) LJG shall carry throughout the term of this
Agreement, with a solvent and responsible company, insurance with
coverage for the Subject Property sufficient to cover LIG'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 LJG. 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
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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
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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. Attornev'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.
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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 Siqn Agreement. 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.
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