1627 Reclaimed Water Agrmt - Serengeti Properties WFOikl) 1:
(2 A,QRit �•
—1877--1 •1
TRANSI � � � � Irk.{
.{ '`s.,. fir. ', A , s'. °" .,� ..D ,.t t
City Clerk
a Request for Services
The item(s)noted below is/are attached and forwarded to your office for the following action(s):
❑ Development Order ❑ Mayor's signature
❑ Final Plat(original mylars) ❑ Recording
n Letter of Credit ❑ Rendering
❑ Maintenance Bond ❑ Safe keeping(Vault)
❑ Ordinance ❑
❑ Performance Bond
❑ Resolution
(151 REZ(/).,"Lo (A0?14 A6,e4.'.¢I)4 Av7
Once completed,please:
❑ Return original
❑ Return copy
C _
Special Instructions:
91 )6(4x4(. SI 6Ar4.4 1,-6kkkAidnr-T £i CK 7. yov
fug u, / i (-Sr4Pr'G
Please advise if you have any questions regarding the above.
Thank you!
From Date
T:\Dept_forms\City Clerk Transmittal Memo-2009.doc
SERENGETI PROPERTIES, LLC/CITY OF SANFORD
RECLAIMED WATER SYSTEM FACILITY AGREEMENT
THIS AGREEMENT is made and entered into this // day of
/9044///0. , 2013, by and between the City of Sanford, a municipality of the
State of Florida, whose address is 300 North Park Avenue, Sanford, Florida 32771,
hereinafter referred to as "City," and Serengeti Properties, LLC, a Florida limited liability
corporation, whose address is 27 North Summerlin Avenue, Orlando Florida 32801,
hereinafter referred to as "Owner".
WITNESSETH:
WHEREAS, the Owner owns certain real property in Seminole County, Florida,
hereinafter referred to as "the Property," as described in Exhibit "A" attached hereto,
and
WHEREAS, the Property is located within the City Limits of the City of Sanford
and a development known as the "Brisson West Development" has been engineered
and approved for 375 single family residential units on the Property; and
WHEREAS, the Owner is also in the process of obtaining development
entitlement for a development known as the "Silvestry Development" which is being
planned for approval of not more than 375 single family residential units (see Exhibit "B"
attached hereto); and
WHEREAS, the Owner desires reclaimed water service to serve the Brisson
West Development and the Silvestry Development (collectively the "Projects"); and
WHEREAS, the City will not permit potable water to be used without restrictions
for irrigation and does not have any plans to extend reclaimed water lines to the Brisson
West Development and the Silvestry Development; and
1
WHEREAS, in order to provide reclaimed water to the Brisson West
Development and the Silvestry Development an 8" water main is required and would
need to be installed from the City's sewer plant located on East Lake Mary Boulevard to
the west side of Brisson Avenue which results in a line extension of approximately
8000'; and
WHEREAS, in order to maximize the public interest in conjunction with the
development of the Brisson West Development and the Silvestry Development, the City
desires to increase the size of the reclaimed water main from 8" diameter pipe to 12"
diameter pipe and the City has agreed to pay for the increase in cost associated with
increasing the size of the pipe; and
WHEREAS, the estimated cost to extend the 8" main to provide service to the
Brisson West Development and the Silvestry Development is $665,048.00 for
construction (See Exhibit "C" attached hereto) in addition to $50,000.00 for engineering
and surveying for a total estimated project costs of $715,048.00 (hereinafter the
"Estimated Cost"); and
WHEREAS, the estimated cost to install a 12" water main (the "Main") is
$683,048.00 (see Exhibit "D" attached hereto) plus engineering and surveying cost of
$50,000 for a total cost of$733,048.00; and
WHEREAS, the City has agreed to contribute $50,000.00 (the "City's Cash
Contribution") to the Cost of the Main and the balance shall be advanced by the Owner;
and
2
WHEREAS, the parties hereto desire to enter into this Agreement for the
extension of the Main and the sharing of cost associated with the design and
construction of the Main; and
WHEREAS, the St. Johns River Water Management District (hereinafter the
"SJRWMD") has implemented a program where the SJRWMD may contribute up to
40% of the cost to design and construct the Main and, thus, in the event SJRWMD
contributes the maximum amount the cost to OWNER and City is anticipated to be
$293,219.20 (the "Net Estimated Cost"); and
WHEREAS, the Owner is willing to contribute to the cost to construct an off-site
(off-Property) Reclaimed System and other appurtenant facilities to serve the Property
and the Brisson West Development and the Silvestry Development in return for the
considerations set forth herein.
NOW, THEREFORE, in consideration of the premises, the parties' mutual
covenants and agreements, including the cost of designing, permitting, constructing,
conveying and accepting the reclaimed water facilities as herein defined, this
Agreement and other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties do hereby agree as follows:
Section 1. Recitals. The foregoing recitals and premises, as set forth in the
whereas clauses to this Agreement, are true and correct and form a material part of this
Agreement upon which the parties have relied.
Section 2. Advancement of Funds; Escrow; Use of Funds.
(a). Upon the closing of the initial phase of Brisson West, the Owner shall
place the sum of $683,048.00, (hereinafter the "Owner's Contribution") into an interest
3
bearing escrow account maintained by Stenstrom, McIntosh, Colbert & Whigham, P.A.
(hereinafter the "Escrow Agent").
(b). The escrowed funds represent the estimated total cost to design and
construct the 12" Main less the City's Cash Contribution. The Escrow Agent shall
disburse the escrowed funds to the City as the City incurs the cost to design and
construct the 12" Main. Notwithstanding the foregoing, Escrow Agent shall reimburse
Owner for any amounts expended in completing the survey of the right of way, upon
delivery of the survey and a copy of the survey contract to Escrow Agent.
(c). Upon completion of the 12" Main and payment of all of the costs incurred
by the City, any funds remaining in escrow shall be disbursed to the Owner.
(d). The escrow account will be opened at a bank of the Escrow Agent's
choosing and the Escrow Agent will be the sole signatory on the account.
(e). It is recognized that the Escrow Agent also serves as the legal counsel for
the City.
(f). The Escrow Agent shall continue to hold the funds in escrow until all of
the escrowed funds have been used for the purpose described in this Agreement. The
Owner recognizes that it has no claim upon the funds, in whatever state, except as may
be specifically set forth herein and only in the manner as set forth herein.
(g). The Escrow Agent shall maintain all records concerning the escrow
account for seven (7) years after full release of all of the escrowed funds for the purpose
herein expressed; provided, however, that the Escrow Agent may transmit said records
to the City Clerk of the City at its discretion.
4
(h). Each signatory to this Agreement is responsible for the payment of income
taxes with respect to any matter arising out of this Agreement.
(i). In the event of a dispute relative to the sums on deposit in the escrow
account, the Escrow Agent may submit such claims to resolution in a court of competent
jurisdiction and, with regard to that matter, as well as all matters relating to the duties of
the Escrow Agent under this Agreement, the Escrow Agent shall be entitled to
reasonable fees and the reimbursement of any and all costs and expenses.
Section 3. City's Obligation.
(a). The City shall cause the Main to be designed, permitted and constructed
in such a time period that the Main is completed in order to service the initial phase of
the Brisson West Development.
(b). The City shall permit the Projects to use Potable Water for irrigation
purposes, without restriction, until 60 days following completion of the Main. The
Projects shall separately meter the irrigation systems installed in the project. The
Projects shall not be obligated to pay sewer charges associated with the potable water
used for irrigation purposes as recorded by the irrigation meters.
Section 4. Efforts Relative to the SJRWMD.
(a). The Owner and the City agree to cooperate with each other so that the
necessary applications are made to the SJRWMD in an attempt to obtain the maximum
contribution allowable for the construction of the Main from the SJRWMD.
(b). The Owner shall cooperate with the City in making all applications for
contributions to the cost of the Main and City shall prepare and submit the application.
5
(c). In the event the SJRWMD contributes to the construction of the Main, the
amounts contributed shall be applied proportionately to contributions of the Owner and
the City based on the proportion each assumes pursuant to this Agreement.
Specifically, City shall receive 6.8% and Serengeti shall receive 93.2% (deemed to be
the "Proportionate Shares") of the amounts contributed by the SJRWMD.
Section 5. City's Obligation with reqard to Reclaimed Water Project.
(a). The cost of the Main shall be broken down into a schedule of values which
shall be agreed upon by the Owner and the City. The Schedule of Values shall serve
as the basis for payment for the work being performed. The parties agree to cooperate
in the design and construction of the Main and to obtain all contributions that are
available from the SJRWMD and other parties, as may be appropriate in the judgment
of the City, in order to reduce the cost to the City and the Owner.
(b). The City shall submit a draw request to the Escrow Agent as the work
progresses.
(c). The Escrow Agent, upon direction by the City in a draw request, shall
disburse the amount to the City supported by the draw request and the approved
Schedule of Values.
Section 6. City's Obligation with regard to Additional Projects.
(a). Projects in addition to the Brisson West Development and the Silvestry
Development projects may have been approved or are, or may be, in the process of
being approved by City (hereinafter the "Additional Projects"). The Additional Projects
may request or be required to tap into the Main subsequent to the date hereof. The City
shall, for a period of 5 years following completion of the Main, require, where otherwise
6
not prohibited by law and in such cases as are consistent with controlling law, any
Additional Project utilizing the Main to pay its proportionate fair share of the cost of
designing and constructing the Main. No certificate of completion shall be issued for
any Additional Project that taps into the Main until such time as the Additional Project
pays its proportionate fair share of the cost of the Main as determined by the City. The
Additional Projects proportionate share shall be $607.00 per lot for each lot, not to
exceed an additional 375 lots in addition to the lots to be developed in the Projects, in
the community tapping into the Main when such assessment is appropriate as stated
above.
(b). As the City receives the contributions from Additional Projects, the City
shall pay to the Owner, within 60 days of receipt of the funds from such payments, the
additional contribution until such time that the Owner has received $277,683.00 less 1/3
of any contributions received by Owner from the SJRWMD. For example in the event
375 additional lots connect to the Main and the Owner receives $300,000 from the
SJRWMD, the Owner shall be entitled to receive $277,683.00 minus $100,000 (1/3 of
the SJRWMD's contribution) or $177,683.00. Thereafter, any contributions obtained
from Additional Projects shall be retained by the City for such uses as it deems
appropriate.
(c). The Owner acknowledges that nothing contained herein shall compel the
City to approve the Silvestry Development project for residential development and that,
in the event the Silvestry Development project is not approved for residential
development, the Owner shall not be entitled to reimbursement from the City for any
portion of funds provided to the City by the Owner except as may be specifically
7
provided for herein. This Agreement shall not be deemed a development order under
controlling law and relates purely to the provision of the utility facilities as set forth
herein.
Section 7. Conveyance.
The Owner shall make such conveyances of easements and other rights as may
be reasonably necessary to accomplish the work that is anticipated in this Agreement all
without cost to the City.
Section 8. Indemnification. The Owner agrees to hold harmless and
indemnify the CITY, its officials, officers, employees and agents from and against any
and all claims, losses, damages, or lawsuits for damages including, but not limited to,
any and all court costs and attorney fees arising from or related to the performance of
this Agreement. The Owner further agrees to hold harmless and indemnify the CITY, its
officials, officers, employees and agents from and against any and all claims, losses,
damages or lawsuits for damages resulting from: (a) any misrepresentation of a
material fact contained in this Agreement or the exhibit attached hereto; or (b) any
breach of warranties made by the Owner pursuant to this Agreement.
Section 9. City's Liability. Notwithstanding everything contained herein to
the contrary, the Owner understands and agrees that the obligations of the City
including, but not limited to, the payment of costs to be made hereunder to the Owner
shall not be deemed to be or constitute a pledge of the full faith and credit of the general
revenues of the City, including, but not limited to ad valorem or non-ad valorem tax
revenues of the City.
8
Section 10. Reasonable Approval. In those instances in this Agreement in
which a party's approval, consent or satisfaction is required, then it shall be implied that
such action shall be exercised in a reasonable manner and within a reasonable time
frame.
Section 11. Remedies. Each party shall have any and all remedies as permitted
by law; provided, however, that the parties agree to provide for positive dialogue and
communications if disputes or disagreements arise as to the interpretation or
implementation of this Agreement.
Section 12. Time Is Of The Essence. Time is of the essence of the lawful
performance of the duties and obligations contained in this Agreement.
Section 13. Force Majeure. No party shall be considered in default in
performance of its obligations hereunder to the extent that performance of such
obligations, or any of them, is delayed or prevented by Force Majeure. Force Majeure
shall include, but not be limited to, hostility, revolution, civil commotion, strike, epidemic,
fire, flood, wind, earthquake, terrorism, hurricane, explosion, any law, proclamation,
regulation, or ordinance or other act of government, or any act of God or any cause
whether of the same or different nature, existing or future; provided that the cause
whether or not enumerated in this Section is beyond the control and without the fault or
negligence of the party seeking relief under this Section.
Section 14. Binding Effect. This Agreement shall be binding upon and inure to
the benefit of the successors in interest, transferees and assigns of the parties. Each
party hereto represents to the other that it has undertaken all necessary actions to
execute this Agreement, and that it has the legal authority to enter into this Agreement
9
and to undertake all obligations imposed on it. The signatories hereof represent that
they have the requisite and legal authority to execute this Agreement and bind the
respective parties herein.
Section 15. Exhibits. All exhibits to this Agreement are hereby incorporated into
this Agreement by this reference thereto.
Section 16. Public Records. The Owner shall allow public access to all
documents, papers, letters or other materials subject to the provisions of the
Constitution of the State of Florida and Chapter 119, Florida Statutes, and which have
been made or received by the Owner in conjunction with this Agreement.
Section 17. Records And Audits.
(a). The Owner shall maintain in its place of business all books, documents,
papers and other evidences pertaining to work performed under this Agreement.
(b). Such records shall be available to the City at any time that the City may
request inspection and copying of the said records.
Section 18. Equal Opportunity Employment. The Owner agrees that it will
not discriminate against any employee or applicant for employment for work relating to
the services provided under this Agreement because of race, color, religion, sex, age,
national origin or disability and will take affirmative steps to insure that applicants are
employed and employees are treated during employment without regard to race, color,
religion, sex, age, national origin or disability. This provision shall include, but not be
limited to, the following: employment, upgrading, demoting or transfer; recruitment
advertising; layoff or termination; rates of pay or their forms of compensation; and
selection for training, including apprenticeship. The Owner shall not engage in any form
10
of sexual harassment, shall ensure compliance with the Americans with Disabilities Act
(ADA), and all other applicable laws, rules and regulations. The Owner shall not
knowingly employ unauthorized alien workers, constituting a violation of the
employment provisions contained in 8 United States Code Section 1324a(e) or Section
274A(e) of the Immigration and Nationally Act (INA). The City shall consider the
employment by the Owner of unauthorized aliens, a violation of Section 274A (e) of the
INA. Such violation by the Owner of the employment provisions contained in Section
274A (e) of the INA shall be grounds for unilateral cancellation of this Agreement by the
City. The Owner agrees to comply with Federal, State, and local environmental, health,
and safety laws and regulations applicable to the work the services that the Owner
agrees to provide under this Agreement.
Section 19. Conflict Of Interests. The Owner agrees that it will not commit any
act that would cause or create a conflict of interest as defined by Chapter 112, Florida
Statutes, to exist or occur in the performance of its obligations pursuant to this
Agreement with the City.
Section 20. Notices.
(a). Whenever either party desires to give notice unto the other, notice may be
sent to:
For the City: City Manager
City of Sanford
300 North Park Avenue
Sanford, Florida 32771
For the Owner: Serengeti Investments, LLC
Attention: William E. Barfield, P.A.
225 S. Westmonte Drive, Suite 2040
Altamonte Springs, Florida 32714
Telephone: (407) 478-1866
11
Email: wbarfield(a�wbarfieldlaw.com
(b). A party may change, by written notice as provided herein, the addresses or
persons for receipt of notices.
Section 21. Interpretation/Applicable LawNenue. The laws of the State of
Florida shall govern this Agreement. Any legal action necessary arising out of the
Agreement will have its venue in Seminole County and the Agreement will be
interpreted according to the laws of Florida. No remedy herein conferred upon any
party is intended to be exclusive of any other remedy, and each and every other remedy
given hereunder or now or hereafter existing at law or in equity or by statute or
otherwise. No single or partial exercise by any party of any right, power, or remedy
hereunder shall preclude any other further exercise thereof. Waiver of a default shall
not be deemed a waiver of any subsequent defaults. In any action brought by either
party for the enforcement of the obligations of the other party, the prevailing party shall
be entitled to recover reasonable attorneys fees and court costs. The specific
provisions of this Agreement shall prevail over the generality of the foregoing. In any
action or proceeding required to enforce or interpret the terms of this Agreement, venue
shall be in the Circuit Court in and for Seminole County, Florida.
Section 22. Construction/Interpretation Of Agreement. This Agreement is
the result of bona fide arms length negotiations between the parties and all parties have
contributed substantially and materially to the preparation of the Agreement.
Accordingly, this Agreement shall not be construed or interpreted more strictly against
any one (1) party than against any other party both parties having participated in the
12
drafting of this Agreement. Whenever a decision is provided for herein which is to be
made by the City, such decision must be in writing in order to be binding upon the City.
Section 23. Entire Agreement/Modification. This Agreement constitutes the
complete, integrated and entire agreement between the parties with respect to the
subject matter hereof, and supersedes all prior agreements, arrangements, contracts or
understandings, whether oral or written, between the parties relating thereto, all of
which have been integrated herein. This Agreement may not be amended, changed, or
modified and material provisions hereunder may not be waived, except by a written
document, of equal dignity herewith and signed by all parties to this Agreement.
Section 24. Third Party Beneficiaries. This Agreement is solely for the benefit of
the formal parties to this Agreement, their assigns and to the Projects, and no right or
cause of action shall accrue by reason hereof to or for the benefit of any other third
party not a formal party hereto. Nothing in this Agreement, expressed or implied, is
intended or shall be construed to confer upon or give any person or entity any right,
remedy or claim under or by reason of this Agreement or any provisions or conditions
hereof, other than the parties hereto and their respective representatives, successors
and assigns as set forth herein.
Section 25. Funding Obligations. Notwithstanding anything to the contrary
stated elsewhere in this Agreement, the City shall have no obligation to fund any part or
parts of the services provided for herein by means of a pledge of revenues contrary to
the provisions of the Constitution of the State of Florida. There are no implied funding
obligations of the City.
13
Section 26. Attorneys Fees And Costs; Waiver of Jury Trial.
(a). In the event of any action to enforce the terms of this Agreement, the
prevailing party shall be entitled to recover reasonable attorneys fees, paralegals fees,
and costs incurred, whether the same be incurred in pre-litigation negotiation, litigation
at the trial level, or upon appeal.
(b). In the event any action is brought to enforce this Agreement, the action shall
be decided by a bench trial and each party hereto, for itself, its successors and assigns,
waives any rights it has to have any action decided by a jury.
Section 27. Captions. The captions used in this agreement are for convenience
only and shall not limit, enlarge or interpret the provisions of this agreement. All
personal pronouns used whether masculine or feminine or neuter gender, shall include
all other genders. The singular shall include the plural and the plural shall include the
singular unless the context shall indicate or specify to the contrary.
Section 28. Severability. If any one (1) or more of the covenants or provisions of
this Agreement shall be held to be contrary to any express provision of law or contrary
to the policy of express law, though not expressly prohibited, or against public policy, or
shall, for any reason whatsoever, be held invalid, then such covenants or provisions
shall be null and void, shall be deemed separable form the remaining covenants or
provisions of this Agreement, and shall, in no way, affect the validity of the remaining
covenants or provisions of this Agreement.
Section 29. Effective Date. This Agreement shall take effect on the date that this
Agreement is fully executed by the parties.
14
IN WITNESS WHEREOF, the parties hereto have made and executed this
Agreement on the respective dates under each signature: the City through its City
Commission taking action on the / day of a( , 2013, and the
Owner signing by and through its duly authorized corporate officers having the full and
complete authority to execute same.
Attest: Serengeti Pro• - 'es, LLC
BY: _____ .
William E. Ba 'rkJ, Manager Sadiq - �� . �4' ;nager
Date: iZ / 720 ,
Attest: City Of Sanford
- .o
By:
Y
Cynthia Porter, City Clerk Jeff Triplett ir
Mayor
Date: _= 25/
For the use and reliance of the City of
Sanford only. Approved as to form
and legal sufficiency.
giöi:r
am L. Colbert
A City Attorney
gp , 6-Yitro
//
15