Loading...
HomeMy WebLinkAboutResolution_35-02/03_07/10/2003f~~~~; ~ 5 RESOLUTION N0.35-02/03 A RESOLUTION OF THE VILLAGE COUNCIL OF THE VILLAGE OF TEQUESTA, PALM BEACH COUNTY, FLORIDA, APPROVING A WATER SERVICE AGREEMENT BETWEEN EMERALD HARBOUR AND THE VILLAGE OF TEQUESTA UTILITIES DEPARTMENT, AND AUTHORIZING THE VILLAGE MANAGER TO EXECUTE THE APPLICABLE AGREEMENT ON BEHALF OF THE VILLAGE. NOW, THEREFORE, BE IT RESOLVED BY THE VILLAGE COUNCIL OF THE VILLAGE OF TEQUESTA. PALM BEACH COUNTY, FLORIDA, AS FOLLOWS: Section 1. The Water Service Agreement between Emerald Harbour and the Village of Tequesta Utilities Department, attached hereto as E.tihibit "A" and incorporated by reference as part of this resolution is hereby approved and the Village Manager is authorized to execute the agreement on behalf of the Village. THE FOREGOING RESOLUTION WAS OFFERED by Council Member von Frank, who moved its adoption. The motion was seconded by Council Member Watkins, and upon being put to a vote, the vote was as follows: FOR ADOPTION AGAINST ADOPTION • Mayor Resnik Vice Mayor von Frank Council Member Genco j Council Member Capretta Council Member Watkins The Mayor thereupon declared the resolution duly passed and adopted this 10th day of July-, 2003. SEAL ~. Villa Jerk Mayor • ~5o TP~~- d~'~~ Stc• ~~ T~~~f A ~ ~~ ~ 3 ~~9 • Emerald Harbour Name of Project WATER SEP,VICE AGREEMENT THIS AGREEMENT made and entered into this `~~ day of /%%'~`` , 2002, by and between ~~:~~~,~~~ l-~/,p;: ~~piw , hereinafter referred to as "Developer", and Village of Tequesta Utilities Department, hereinafter referred to as "Utility". WHEREAS, Developer owns or controls lands located in the Utility Service Area, and described in Exhibit "A", attached hereto and made a part hereof as if fully set out in this paragraph and hereinafter referred to as the "Property" and Developer intends to develop the property by erecting thereon, individually metered residential units, commercial units, or a combination of these; and WHEREAS, Developer desires that the Utility provide water service for Developer's property herein described; and WHEREAS, the Utility is willing to provide, in accordance with the provisions of this Agreement and Tequesta Utilities Department Service Policies, water service to the property and thereafter operate applicable facilities so that the occupants of the improvements on the property will • receive an adequate water supply. NOW, THEREFORE, for and in consideration of the premises, the mutual undertakings and agreements herein contained and assumed, Developer and Utility hereby covenant and agree as follows: 1. The foregoing statements are true and correct. 2. The following definitions and references are given for the purpose of interpreting the terms as used in this Agreement and apply unless the context indicates a different meaning; A. "CONSUMER INSTALLATION" - All facilities ordinarily on the consumer's side of the point of delivery. B. "DEVELOPMENT PHASE" - A subdivision or construction phase of the construction of utility facilities on the property. C. "EQUIVALENT RESIDENTIAL CONNECTION (ERC)" - A factor used to convert a given average daily flow (ADF) to the equivalent number of residential connections. For this purpose, the average daily flow of one equivalent residential connection (ERC) is 350 gallons per day (GPI?) _ The number of EAC' s contained in a given ADF is determined by dividing that ADF by • 350 GPD. Emerald Harbour • Name of Project The Utility shall, of, own all pipes otherwise agreed point of delivery according to the terms and conditions here and appurtenances to the- point of delivery unless sport. The pipes and appurtenances outside the shall belong to others. D. "POINT OF DELIVERY" - The point of delivery where the water lines or meter(s) of the Utility are connected with water lines of the consumer. Unless otherwise indicated, the point of delivery shall be on the consumer's side or discharge side of the water meter(s) that will be utilized for delivery of water service. The Utility shall, according to the terms and conditions hereof, own all pipes and appurtenances to the point of delivery unless otherwise agreed upon. The pipes and appurtenances outside the point of delivery shall belong to others. E. "PROPERTY" - The area or parcel of Iand described in Exhibit "A" by legal description. • F. "SERVICEn - The readiness and ability on the part of the utility to furnish and maintain water service to the point of delivery for each lot or tract pursuant to applicable rules and regulations of applicable regulatory agencies. 3, Annexation - No unincorporated property contiguous to the corporate limits of the Village of Tequesta, not currently receiving water service pursuant to a water service agreement or franchise agreement with the Tequesta Utilities Department, shall be allowed to connect to or be provided water service through the Tequesta Utilities Department without first being annexed into the corporate limits of the Village of Tequesta. Should the property described in Exhibit "A" not be contiguous to the corporate limits of the Village of Tequesta at the time water service is initially provided to said property, the property owner, including hislheirs, successors and assigns, as a condition of receiving water service, must: A. zf the property is located in Palm Beach County, file a petition with the Village of Tequesta to voluntarily annex the property into the corporate limits of the Village of Tequesta within thirty (30) days of the date that the property becomes contiguous to the corporate limits of the Village of Tequesta or 2 r 1 ~J Emerald Harbour Name of Project B. If the property is located outside Palm Beach County, file a petition with the Village of Teq^aesta to voluntarily annex the property into the corporate limits of the Village of Tequesta if and when Florida law authorizes the anneXatian of property outside the boundaries of a single county within thirty (30) days of the effective date of the applicable statute. 4. Assurance of Title - At the time of execution of this Agreement, the Developer agrees to deliver to the utility a copy of Title Insurance Policy or an Opinion of Title from a qualified attorney-at-law, with respect to the property, which opinion shall include a current report on the status of the title, setting out the name of the legal title holders, the outstanding mortgages, taxes, liens and covenants. The provisions of this paragraph are for the purpose of evidencing Developer's legal right to grant the exclusive rights of service contained in this Agreement. 5. Connection Charges - In addition to the contribution of any water distribution system, where applicable, and further to induce the Utility to provide water service, Developer hereby agrees to pay the Utility, connection charges as defined in Exhibit "B". Payment of the connection charges does not and will not result in the Utility waiving any of its rates or rules and regulations, and their enforcement shall not be affected in any manner whatsoever kxy Developer making payment of same. The portion of the value of the connection charges for any reason whatsoever, nor shall the Utility pay any interest or rate of interest upon the connection charges ' paid. Neither Developer or any person or other entity balding any of tl~e property by, through, or under Developer, ar otherwise, shall have any present or future right, title, claim or interest in and to the connection paid to the Utility. Any user or consumer of water service. shall not- be entitled to offset any bill or bills rendered by the Utility for such service or services against the connection charges paid. Developer shall-not be entitled to offset the connection charges against any claim or claims of the Utility including claims for breach of contract, damages, or charges of the like of the Utility. 6. OVERSIZED FACILITIES REQUIREMENTS; RRIMBURSEMENT - Tf the water service facilities can reasonably be expected to serve -other areas than those of the Developer, the Utility shall require that they be oversized to enable water.. service to be provided to such additional property. Emerald Harbour Name of Project .7 However, there will be no reimbursement for the construction of six (6)inch or eight (8) inch water mains, which are the minimum standard sizes, even if these sizes exceed the Developer's own requirements. The Developer will be reimbursed for the estimated difference in the cost of construction between the oversized facilities and those facilities the Developer otherwise would have been required for his own use. The amount of the reimbursement shall be determined by the Utility based on the data concerning construction costs of the Utility and upon data which may be supplied to the Utility by the Developer's engineer. The Utility shall make every effort to properly evaluate the "cost difference" for over sizing, but in the event of a disagreement, the decision of the Utility shall be final and binding. The method of reimbursement shall be as follows: The Developer will receive the reimbursement due it from the other Developers, as each Developer connects for a time period up to five (5) years. 7. PAYMENT - Developer shall pay, in full, connection charges at the time of execution hereof. • 8. EQUIVALENT RESIDENTIAL CONNECTION RESERVED - The parties agree that the capacity needed to provide service to the Property is Fifty Three (53) Equivalent Residential Connections (ERC's) for water supply. Developer agrees that the number of units of capacity reserved hereby shall not exceed the number of units of development for which capacity is reserved hereby pursuant to Exhibit "B". 9. ON-SITE INSTALLATION - To induce the Utility to provide the water treatment facilities, and to continuously provide consumers located on the Property with water service, unless otherwise provided for herein, Developer hereby covenants and agrees to construct- and to transfer ownership and control to the Utility, the on-site water distribution systems referred to in Exhibit "B" herein. Developer shall cause to be prepared five (5) copies of the applications for permits and a sufficient number of sets of finalized engineering plans prepared and sealed by a professional engineer registered in the State of Florida (Utility will retain four (4) sets), along with a copy of the final estimate of quantities covering all contract items that are to be dedicated to the Utility. Plans shall show the on-site water distribution system prgposed to be installed tb provide service to consumers within the Property. Such plans will also show the interconnection of such on-site facilities to the off-site facilities of the Utility or off-site facilities that may • c9nstructed. 4 • Name of Project Emerald Harbour by Developer or others and given to the Utility. Such detailed plans may be limited to the first development phase only, and subsequent phases may be furnished from time to time. However, each such development phase shall conform to a master plan for the development of the property and such master plan shall be submitted to the Utility concurrent with or prior to submission of engineering plans for the first development phase. Developer reserves the right to modify his/her master plan any time in such- a manner as to not unduly interfere with the Utility's existing facilities and upon modification, shall submit four (~) copies of the modified plan to the Utility. The cost of any modifications to the Utility's existing systems or to its Master Plan that are caused by Developer"s modifications or changes shall be borne by Developer. Developer shall cause his engineer to submit specifications governing the material to be used and the method and manner of installations. All such plans, specifications and-shop drawings submitted to the Utility shall melt the minimum specifications of the Utility and shall not be unreasonably withheld. The Utility reserves the right to review the revised Master Plan and recalculate the connection charges that are to be paid by the Developer at the time the revised Master Plan ~s • submitted. No construction shall commence until the Utility and appropriate regulatory agencies have approved such plans a{~d specifications in writing. When permits and approved plans are returned by appropriate regulatory agencies to Developer, Developer shall submit to the Utility one (1) copy of the water permit(s) and approved plans. If construction commences prior to alT-such approvals and any other approvals required hereunder, the Utility shall have no responsibility to accept such-lines or facilities, and-the Utility may elect to terminate this Agreement and/or not provide service to Developer until such time as Developer obtains such required approvals and the Utility has witnessed all of its required inspections and tests. After the approval of plans, specifications Utility and appropriate regulatory agencies, of record, shall conduct a pre-construction of record, utility contractor, appropriate other utility companies involved in the dev~ and the Tequesta Utilities Department. and shop drawings by the Developer or the engineer conference with engineer building office(s), all °lopment of the property, Developer shall provide to the Utility's inspector a minimum of forty- eight (48) hours notice, excluding weekends and holidays, prior to commencement of construction. Developer shall cause to be constructed at Developer's own cast and expense, the water distribution system as shown on the approved plans and specifications. • 5 • Emerald Harbour Name of Project During the construction of the water distribution system by Developer, the Utility shall have the right to inspect such installations to determine compliance with the approved plans and specifications. The Utility Engineer of record and Utility contractor shall be present for all standard tests for pressure, exfiltration, line and grade, infiltration and all other customary engineering tests to determi~ie that the systems have been installed in accordance with the approved plans and specifications, good engineering practices, and American Water Works Association (AWWA) criteria as well as other federal, state and local regulations which are applicable. Upon completion of construction, Developer's Engineer of record shall submit to the Utility, a signed copy of the Certification of Completion submitted to the appropriate regulatory agencies. A copy of the bacteriological results and a sketch showing locations of all sample points shall be included. The Engineer of Record shall also submit to the Utility, ammonia mylars of the as-built plans prepared and certified by the Engineer of Record, and ammonia mylars of-the recorded plat, including the dedication sheet(s). • By these presents, Developer hereby covenants to transfer to the Utility title to all water distribution systems installed by Developer or Developer's contractor shown in Exhibit "B" of this Agreement dealing with those potable water supply facilities that- will be transferred from Developer to the Utility, pursuant to the provisions of the Agreement. Such conveyance shall take effect before the Utility issues its final "Letter of Acceptance". As further evidence of said transfer of title, upon the completion of the installation, but prior to the issuance of the final Letter of Acceptance and the rendering of service by the Utility, Developer shall: A. Convey to the Utility by notarized bill of sale in form satisfactory to Utilityrs Counsel, the Water Distribution System listed in Exhibit "B" as constructed by Developer and approved by Utility. B. Provide Utility with copies of invoices from contractor for installation of the utility systems being dedicated to service company, including engineering design and inspection fees so paid. C. Furnish proof satisfactory to the Utility that the installation of the facilities and all contractors, subcontractors, material men, laborers and engineers have been paid in full (i.e., by release of lien or other • appropriate means). 6 Emerald Harbour Nar.1e of Project • D. Warrant and/or guarantee all utility facilities being dedicated to the Utility against faulty workmanship and defective materials for a period of one (1) year from the date of the Ftlity's final letter of acceptance. Also, Developer shall assign any and all warranties and/or maintenance bonds and' the right to enforce same to the Utility which Developer obtains from any contractor constructing the water system. Developer shall secondarily liable on such warranties. If Developer does not obtain such written warranty and/or maintenance bond from its contractor and delivery of same to the Utility, which warrant and/or maintenance bond shall be for a minimum period of ane (1) year, then in such event, Developer, by the terms of this Agreement, covenants to indemnify and save harmless the Utility for any lass, damages, costs, claims, suits, debts, or demands by reason of defects in the systems for a period of one year from date of the final Letter of Acceptance by the Utility. E. Provide the Utility with all appropriate operation/maintenance and parts manuals.. F. Further cause to be conveyed to the Utility, free and clear of all encumbrances, all utility easements and rights-of-way covering areas in which water systems are installed, or otherwise required, in recordable form satisfactory to the Utility's Counsel. If applicable, Utility may require joinder or any condominium association, cooperative or other vendee of the property. The Utility agrees that the issuance of the final letter of acceptance for the water distribution system installed by Developer shall- constitute the assumption of responsibility by the Utility for the continuous operation and maintenance of such systems from that date forward, subject to the terms and conditions contained herein. Whenever the development of the subject property involves one consumer or a unity of title of several consumers and/or in the opinion of the Utility ownership by the Utility of the internal water distribution system is not necessary or proper, then at the option of the Utility, Developer shall retain ownership and the obligation for maintenance of such on-site water facilities located on the discharge side of a 7 Emerald Harbour Name of Project master meter located on the consumer's side of the point of delivery. In the event that the Utility, for whatever reason, does not take possession, ownership and control of the on-site facilities constructed by the Developer, and provides master metered service to the Developer for the use of several consumers within the on-site facilities, the Developer shall be required to: 1. Maintain water quality at each individual outlet which is in compliance with all primary and secondary standards promulgated by the Florida Department of Environmental Protection, or County Health Department. At no time shall such water quality standards be required to be in excess of those attained at the Utility's point of delivery master meter. 2. Institute a program of line flushing in order to help the reduction of sedimentary deposits in the Developer's on-site lines, and reduce the possibility that water quality • standards will fall below those required by subsection "A" above. Such line flushing shall be conducted in accordance with reasonable engineering standards as necessary to meet the objectives as outlined herein. Such flushing shall occur of a minimum of not less than 6 months. Developer shall provide the Utility a minimum of forty-eight (48) hours notice of the time and place of such flushing. The Utility shall send its representative to observe such flushing and record the amount of water used far that purpose as indicated by the master meter. Developer shall be solely and directly responsible for the cost of all water used in the flushing of his/her on-site facilities, such billing and collection to be conducted in accordance with the provisions of the Utility's approved ordinances and/or policies. 3. Developer shall be responsible for maintaining all on-site water facilities in accordance with reasonably prudent engineering standards. The Utility shall have the right to inspect the facilities of the Developer during reasonable business hours upon twenty-four (24) hours notice to the Developer. If the Utility determines that the Developer has failed to comply with the provisions of this section, Utility shall provide an explanation of the reason for such violation 8 • Emerald Harbour Name of Project at which point, the Developer shall have twenty (20) days or such other time as is reasonably necessary to correct the deficiency. Upon failure to do so, Utility shall have the power and right to discontinue service in accordance with the provisions of its approved ordinances and/or policies for non-payment of bills. 10. OFF-SITE INSTALLATION - Developer may be required to construct, at his/her sole expense, certain off-site water facilities in order to connect Developer's on-site facilities to the Utility`s existing water system. In addition, Developer may be required to dedicate all or a portion of said off-site water facilities to the utility for ownership, maintenance and operation. A11 provisions in Section 9 above, entitled "On-Site Installations" pertaining to specifications, plans, permits and approvals shall also be applicable to all off-site water facilities construction. 11. EASEMENTS - Developer hereby grants and gives to the Utility, its successors and assigns, but subject to the terms of this Agreement, the exclusive right or privilege to construct, own, maintain or operate the water facilities to serve the Property; and the exclusive right or privilege to construct, own, maintain, alter, replace and operate said facilities in, under, upon, over and across the present and future streets, roads, alleys, easements, reserved utility strips and utility sites, and any public place as provided and dedicated to public use in the record plats, or as provided for in agreements, dedications, or grants made otherwise and is dependent of said record plats. Developer shall obtain any and all necessary off-site easements that my be required in order to carry out the terms, conditions and intent hereof, at Developer's expense, and shall convey, if any, holding prior liens on the property shall be required to release such liens, subordinate their position or join the grant or dedication of the easements or rights-of-way or give to the Utility assurance by way of "no disturbance agreement", that in the event of foreclosure, mortgagee would continue to recognize the easement rights of the Utility, as long as the Utility complies with the terms of the Agreement. All water distribution facilities, save and except consumer installations, shall be covered by easements or rights-of-way if not located within platted or dedicated roads or rights-of-way for utility purposes. 9 • • Emerald Harbour Name of Project Developer hereby further agrees that the foregoing grants or promises of grants include the necessary right of ingress and egress to any part of the Property upon which the utility is constructing or operating such facilities: That the foregoing grants shall be for such period of time as the Utility or its successors or assigns require such rights, privileges or easements in the construction, ownership, maintenance, operation or expansion of water facilities, that in the event Developer and Utility agree that the Utility is to install any of its water facilities in lands within the Property lying outside the streets and easements areas described above, then Developer or the Owners shall grant to the Utility, without cost or expense to the Utility, the necessary easement or easements for such "private property" installation; provided, all such "private property" installations by the Utility shall be made in such a manner as not to interfere with the then primary use of such "private property". The utility covenants tY~at it will use due diligence in ascertaining all easement locations; however, should the Utility install any of its facilities outside a dedicated easement area, the Utility will not be required to move • or relocate any facilities lying outside dedicated easement area, so long as the facilities do not interfere with the then proposed use of the area in which the facilities have been installed and so long as the Utility obtains a private easement for such facility location, which Developer will give if same is within hisfher reasonable power to do so. The use of easements granted by Developer other than Utility shall preclude the use by other utilities of these easements, such as for cable, television, telephone, electric, or gas utilities; or as otherwise agreed to by the Utility. In the event Developer fails to actually deliver such easement, this document shall serve as the Utility's authorization to substitute the Agreement as a recorded easement sufficient for the Utility's needs. The Utility hereby agrees that all easement grants will be utilized in accordance with the established and generally accepted practices of all its facilities in any of easement areas, However, this provision shall not be construed so as to require the Utility to restore those improvements constructed, installed or planted within the Utility easement which are not in accordance with the established and generally accepted practices of the water industry with respect to the use of utility easements. • 10 Emerald Harbour Name of Project • 12. AGREEMENT TO SERVE - Upon the completion of construction of the on-site and off-site water facilities required hereunder by the Developer, its inspection, the issuance of the final letter of acceptance by the Utility, and when all appropriate governmental agency approvals have been received, the Utility covenants and agrees that it will connect or oversee the connection of the water distribution facilities installed by Developer to the central facilities of the Utility in accordance with the terms and intent of this Agreement. Such connection shall at all times be in accordance with rules, regulations and orders of the applicable governmental authorities. The Utility agrees that once it provides water service to the Property and Developer or others have connected consumer installation to its system, that thereafter, the Utility will continuously provide, at its cost and expense, but in accordance with the other provisions of the Agreement, including rules and regulations and rate schedules, water service to the • property in a manner to conform with all requirements of the applicable governmental authority having jurisdiction over the operations of the Utility. 13. APPLICATION FOR SERVICE; CONSUMER INSTALLATIONS - Developer or any owner of any parcel of the property, or any occupant of any residence, building or unit located thereon shall not have the right to and shall not connect any consumer installation to the facilities of the Utility by the prospective user or water service, in accordance with the then effective rules and regulations of the Utility and approval for such connection has been granted. Although the responsibility for connection of the consumer installation to the meter andlor lines of the Utility at the point of delivery is that of the Developer or entity other than the Utility, with reference to such connections, the parties agree as follows: A. Approved backflow preventers must be installed prior to the Utility providing meters and service. B. Application for the installation of water meters shall be made seventy-two (72) hours in advance, not including Saturdays, Sundays and Holidays. • 11 Emerald Harbour • Name of Project C. All consumer installation connections must be inspected by the Utility before back-filling and covering of any pipes. D. Notice to the Utility requesting an inspection of a consumer installation connection may be given by the plumber or Developer, and the inspection will be made within twenty-four (24) hours, not- including Saturdays, Sundays and holidays, provided the water meter and backflow preventer have been previously installed. If the Utility fails to inspect the consumer installation connection within forty-eight (48) hours after such inspection is requested by Developer or the owner of any parcel, Developer or owner may backfill or cover the pipes without the Utility's approval and the Utility must accept tie connection as to any matter which could have been discovered by such inspection. 14. THE UTILITY'S EXCLUSIVE RIGHT TO UTILITY FACILITIES - Developer agrees with the Utility that all water facilities accepted by the Utility in connection with providing water service to the Property {including fire service), shall at all times remain in the sole, complete and exclusive ownership of the Utility, its successors • and assigns, and any person or entity owning any part of the property or any residence, building or unit constructed or located thereon, shall not have any right, title, claim or interest in and to such facilities or any part of them, for any purpose, including the furnishing of water service to other persons or entities located within or beyond the limits of the Property. 15. EXCLUSIVE RIGHT TO PROVIDE SERVICE - Developer, as a further and essential to the Agreement, agrees that Developer, or the successors and assigns of Developer, shall not (the words ushall notes be used in a mandatory definition) engage in the business or businesses of providing potable water service to the Property during the period of time the Utility, its successors and assigns, provide water service to the Property, it being the intention of the parties hereto that under the foregoing provision and also other provision of this Agreement, the Utility shall have the sole and exclusive right and privilege to provide water service to tie Property and to the occupants of such residence, building or unit constructed thereon. 16. RATES - The Utility agrees that the rates to be charged to 12 • Emerald Harbour • Name of Project Developer and individual consumers of water service shall be those set forth in the ordinances and/or policies of the Utility. However, notwithstanding any provision in this Agreement, the Utility, its successors and assigns, may establish, amend or revise, from time to time in the future, and enforce rates or rate schedules so established and enforced and shall at all times be reasonable and subject to regulations by the applicable governmental agency, or as may be provided by law. Rates charged to Developer or consumers located upon the Property shall at all times be identical to rates charged for same classificatign of service, as are or may be in effect throughout the service area of the utility. Notwithstanding any provision in this Agreement, the Utility may establish, amend or revise, from time to time, in the future, and enforce rules and regulations covering water service to the Property. However, all such rules and regulations so established by the Utility shall at aI1-times be reasonable and subject to such regulations as may be provided by law or contract. • Any such initial or future increased rates, rate schedules, and rules and regulations established, amended or revised and enforced by the Utility from time to time in the future, as provided by laW, shall be binding upon Developer; and upon any user or consumer of the water service provided to the Property by the Utility. 17. BINDING EFFECT OF AGREEMENT - This Agreement shall be binding upon and shall inure to the benefit of Developer, the Utility and their respective assigns and successors by merger, consolidation, conveyance or otherwise subject to the terms and conditions of this Agreement as contained herein. Developer understands and agrees that capacity reserved hereunder cannot and shall not be assigned by except in the case of a bona fide sale of Developer's Property, or limitation, the transfer or assignment of the Property as a result of a judicial proceeding such as mortgage foreclosure or sale, and- assignment for the purposes of obtaining financing. Tn any such case, the Developer shall provide a notice of evidence of such assignment, or partial assignment as the case may be, to the Utility and the Agreement with assignee or the transferee. such approval to sale, transfer, or assignment shall not be unreasonably withheld. Nothing herein shall preclude sales of individual units and assignment or rights of water service pertaining thereto. • 13 Emerald Harbour • Name of Project 18. NOTICE - Until further written notice by either party to the other, all notices provided for herein shall be in writing and transmitted by messenger, by mail or by telegram, and if to Developer, shall be mailed or delivered to Developer at: Emerald Harbour, Inc. James Helm, President 658 West Zndiantown Road Jupiter, Florida 33458 and if to the Utility, at: Tequesta Utilities Department 136 Bridge Road P. O. Box 3474 Tequesta, FL 33469 Attn: Utilities Director 19. LAWS OF FLORIDA - This Agreement shall be governed by the laws of the State of Florida and it shall be and become effective immediately upon execution by both parties hereto, subject to any approval, which must be obtained from governmental authority, if applicable. 20. COSTS AND ATTORNEY'S FEES - In the event the Utility or Developer are required to enforce this Agreement by Court proceedings or otherwise, by instituting suit or otherwise, then the prevailing party shall be entitled to recover from the other party all costs incurred, including reasonable attorney's fees. 21. FORCE MAJEURE - In the event that the performance of this Agreement by the Utility is prevented or interrupted in consequence of any cause beyond the control of the Utility, including, but not limited to, Acts of God, or of the publzc enemy, war, national emergency, allocation or of other governmental restrictions upon the use or availability of labor or materials, rationing, civil insurrection, riot, racial or civil rights disorder or demonstration, strike, embargo, flogd, tidal wave, fire, explosion, bomb detonation, nuclear fallout, windstorm, hurricane, earthquake, or other casualty or disaster or catastrophe, unforeseeable failure or breakdown of pumping transmission or other facilities, any and all governmental rules 14 • Emerald Harbour Name of Project or acts or orders or restrictions or regulations or requirements, acts or action of any government or public or governmental authority or commission or board or agency or agent or official or officer, the enactment of any statute or ordinance pr resolution or regulation or rule or ruling or order or decree or judgment or restraining order or injunction of any court, laid party shall not be liable for such non-performance. 22. INDEMNIFICATION - Developer agrees to indemnify and hold the Utility harmless from and against any and all liabilities, claims, damages, costs and expenses (including reasonable attorney's fees) to which the Utility may become subject by reason of or arising out of Developer's breach or non-performance of this Agreement. This indemnification provision shall survive the actual connection to the Utility water system. MISCELLANEOUS PROVISIONS 23. This Agreement supersedes all previous agreements or representations, either verbal or written, heretofore in effect between Developer and the Utility, made with respect to the matters herein contained, and when duly executed, fully constitutes the Agreement between Developer and the Utility. No additions, alterations or variations of the terms of this Agreement shall be valid, nor can provision of this Agreement be waived by either party, unless such additions, alterations, variations or waivers are expressed in writing and duly signed by all signatures herein. 24. In the event that Developer does not make application for and have installed all water meters to serve the property within six (6) months from the date of this Agreement, the Village shall, at the time of meter installation, assess a fee representing the difference between the connection charge paid up front by the Developer and the connection charge currently being assessed by the Village at the time of actual meter installation. 25. Whenever the singular number is used in this Agreement and when required by the context, the same shall include the plural, and the masculine, feminine and neuter genders shall each include the others. 15 C] Emerald Harbour Name of Project • 26. Exhibits mentioned herein have been signed or initialed by the duly authorized officers, agents or attorneys of the parties hereto and are hereby incorporated herein by reference and made a part hereof as fully as if-set forth herein. 27. The submission of this Water Service Agreement for examination by Developer does not constitute an offer becomes effective only upon execution thereby by the Utility. 28. Not withstanding the gallonage calculations that could be made hereunder relative to ERC`s, by and execution hereof, Developer agrees that the intention of this Agreement is to reserve a given number of units of capacity for the property described in Exhibit "A" and-not for purposes of-any other calculations. 29. It is agreed by and between the parties hereto that all words, terms and conditions contained herein are to be read in concert, each with the other, and that a provision contained under one heading may be considered to be equally applicable under another in the interpretation of the Agreement. 30. The parties hereto recognize that prior to the time the Utility may actually commence upon a program to carry out the terms and conditions of this Agreement, the Utility may be required to obtain approval from various state and local governmental authorities having jurisdiction and regulatory power over the construction, maintenance, and operation of the Utility. The Utility agrees that it will diligently and earnestly, it Developer's sole cost and expense, make the necessary and proper applications to all governmental authorities and will pursue the same to the end and that it will use its best efforts to obtain such approval. Developer at his own cost and expense, agrees to provide necessary assistance to the Utility in obtaining the approvals provided for herein. 31. Regardless of where executed, this Agreement shall be construed according to the laws of the State of Florida. 32. In the event that relocation of existing water and sewer utilities are necessary for the Developer, Developer will reimburse the Utility in full for such relocations. 33. The Utility shall, at all reasonable times and hours, have the right of inspection of Developer's internal lines and facilities. • This provision shall be binding on the successors and assigns of the Developer. 16 • Emerald Harbour Name of Project 34. There shall be no liability whatsoever on the Utility for failure to deliver water service to Developer according to Developer's needs or schedules. This Agreement constitutes a promise of good faith and not a timetable for delivery of utility services. 35. Each party hereby agrees to grant such further assurances and provide such additional documents as may be required, each by the other, in order to carry out the terms, conditions and comply with the express intention of this Agreement. 36. The Developer will be invoiced for reimbursable expenses by the Utility. These expenses will include, but not be limited to, Utility Engineer expenses, secretary time, computer time, plan review and inspection fees. 37. CAPACITY RESERVATION FEE - Each new connection to the water system which has paid a capital improvement charge at the time of application for a new connection shall pay a Capacity Reservation Fee for each equivalent residential connection which has not been transferred to a customer. or_tenant and considered as an active account. The Capacity Reservation Fee shall be billed monthly to • all those applicants who possess permits authorizing connection to the Village's water system or facilities. All applicants who reserve Capacity or hold water service agreements authorizing connection to the Village water facilities shall begin paying the Capacity Reservation Fee, six (6) months from the effective date of Water Service Agreemen t, or six (6) months from the date of issuance of a conditional use permit for the project, whichever is later. The monthly Capacity Reservation Fee shall be seven dollars end fifty-eight cents ($7.64) per equivalent residential connection. (Subject to Annual Price Index Rate Adjustment) AlI unpaid Capacity Reservation Fees shall accrue and no connection shall be allowed to the Village's water facilities until all such unpaid accrued fees related to said applicant or their assigns have been paid in full by the applicant or their assigns. The obligation to continue payment of the Capacity Reservation Fees for a particular ERC of capacity shall terminate upon connection of that particular ERC to the Village water system. IN WITNESS WHEREOF, DEVELOPER AND UTILITY have executed or have caused this Agreement, with the named Exhibits attached, to be duly executed in several counterparts, each of which Counterpart shall be considered an original executed copy of this Agreement. 17 • • WITNESSES: Signature Print Name Signature Print Name WI SSES • / A _ /~ v `~'~ • Signature Print Name Signature 6§d3dL~R' Print Name Signature Print Name Signature Title Emerald Harbour Name of Project THE UTILITY: TEQUESTA UTILITIES DEPARTMENT P. O. Box 3474 Tequesta, FL 33469 136 Bridge Road Tequesta, FL 33469 By: (If other than Developer) Signature .Y Print Name MORTGAGEE JOINDER (If applicable) By: It's: Print Name/Title 18 THE DEVELOPER: Emerald Harbour, Inc. James Helm, President 658 West Indiantown Road Jupiter, Florida 33458 • • Emerald Harbour Name of Project STATE OF FLORIDA COUNTY OF PALM BEACH ss The foregoing instrument was acknowledge before me this day of 2002 , by , on behalf of the Utility, who is personally known to me or has produced a drivers license as identification. My Commission Expires: FOR DEVELOPER• STATE OF FLORIDA COUNTY OF PALM BEACH ss Notary Public State of Florida at-large The foregoing instrument was acknowledged before me this ~~'day of ~ 200 ~, by ~j~m,~,I h'~'~~;n- of Florida, on behalf of t e corporation. He/she is personally known to me or has produced a driver's license as identification. °•~~",,,, Sri S. Roap :~ ~Y Fp ~~ ?°,~~~F~~s CommLLcsioa ~ DD ~ -a;,s ~~ ra ' ~p~s Oct 15. 2005 '~~~ 111 ~,` BOf1d1I1g CQ~ My Commission Expires: (0~ ~/Zdo~ Notary Public State of Florida at-large 19 • • C DESC~ETIC~}l~ THE SQUTH 204 FEET OF GOVERNMl=N7 LOT 2 ANR THE NORTH 10 FEET OF GOVERNMENT LOT 3, ALL LYING EAST QF U.S. 1~IIGHIi'VAY NO.ON<=, SECTION 19, TOWNSMIE~ 40 SOUTM, RANGE ~43 EAST, IN MARTIN COUNTY, 1*LORIDA, TOGETHER WITH ALL RIPARIAN RIGHTS HEREl1NT0 ~ APPERTAINING. ~QNTAINING 2.117 ACRES MORE OR LESS. U • EXHIBIT "A" Emerald Harbour Name of Project PROPERTY DESCRIPTION • WITN SES: DEVEL( B . Y ~~~ 20 EXHIBIT "B" • EXHIBIT "B" Emerald Harbour Name of Project CONNECTION CHARGES • The Developer agrees to pay in order to induce the Utility to provide service, the following connection charges for the share of facilities. Said charges to be paid by Developer are those which are set forth in the Utility's Ordinances and uniform service policies. ITEM I Payment Schedule Water: The following formula was used to determine Developer's share of Water Facility Charges. Total ERC's Charge Per ERC Total Charges 6- 3~" 1- 1" $2,780.46 $6,951.13 $23,633.89 ITEM II WATER SYSTEM CONTRIBUTIONS The Developer shall install the following pipe, mains and appurtenances thereto and dedicate same to the Village. Said installations are to be in accordance with the approved. plans drawn by ~~r~~~~~-- ,QP.; % %~'-- Drawing 6 No . ~ ^- ~' ~ ~ sheets L through ~d dated Q~~ ~ i z '~ ~---~ ~ UTILITY COMPANY DEVI By: By: WITNESSES: WITNE SE G ~~~~, .~ 21 • • • r 0 ~"'~ U 0 ~'O~ d' \r/ _ a~ `~ ~~ ~~ ~~ 0 ~v I EXHIBIT "C" • LOCATION MAP 22 • Revised: 7/21/00 WaterSvcAgree(Developer's) FloppyDisk 6.26.01 Emerald Harbour Name of Project