Loading...
HomeMy WebLinkAbout2010 03 22 Regular 603 Requesting Approval Bulk Reclaimed Water Agreement with Tuscawilla Country Club COMMISSION AGENDA Consent Informational ITEM 603 Public Hearing Regular x March 22, 2009 3 Regular Meeting / Dept. Authorization REQUEST: Utility Department Requesting the City Commission Approve the Bulk Reclaimed Water Agreement with Tuscawilla Country Club SYNOPSIS: This agenda item is needed for the Commission to formalize the terms and conditions under which the City will provide reclaimed water to the Tuscawilla Country Club. CONSIDERATIONS: This agenda item is needed to provide an agreement for the sale of bulk reclaimed water to the Tuscawilla Country Club. The City Commission previously approved a 4 addendum to the 1987 reclaimed water agreement which expires March 31, 2010. The terms and conditions of the those addendums were that reclaimed water was provided at no charge to the golf course and the City is no longer responsible for the golf course pump station maintenance, repairs, or electrical costs. The Utility Rate Study determined that the wholesale rate for reclaimed water should be $0.52 per thousand gallons and the wholesale rate was adopted in Ordinance 2009 -13 on September 28, 2009. Staff and the City Attorney met on several occasions with the golf course representatives to discuss the new fee. The main concern expressed by the owner's was the potential financial hardship caused by this new expense for reclaimed water. In addition, an equitable way had to be determined to compensate the golf course for the value of the water from their well that is used to augment the reclaimed water system during peak demands. 032210_COMM Regular_603_Tuscaweilla Golf Course _Reclaimed_Water_Agreement_ March 22, 2010 Regular Agenda Item 603 Page 2 The agreement proposes to address these two issues by; 1. Phasing the reclaimed water charges in three increments over the next 30 months. This is consistent with the rate study report recommendation on phasing in the annual residential increases over 3 increments. The full rate of $0.52/ 1K gallons would be in effect 10/1/12. 2. The credit for the usage from the golf course well would be based on the first tier of the City's irrigation rate, currently $1.61 per gallon. This would also be phased in using the same timeframe and prorated increment as the reclaimed rate. When the Lake Jesup augmentation plant is complete, we expect the golf course well usage to be zero. The term of the agreement is for ten years with five year renewal options with the written consent of both parties. FISCAL IMPACT: The proposed initial cost of the reclaimed water at $0.18/1K is estimated to cost the golf course $14,900 annually based the last three years average usage including the well credit. COMMUNICATION EFFORTS: Staff and the City Attorney have met or discussed the terms of the agreement with the golf course representatives on numerous occasions. RECOMMENDATIONS: It is recommended that the City Commission authorize the City Manager and City Attorney to prepare and execute the Bulk Reclaimed Water Agreement with Winter Springs Golf, LLC (Tuscawilla Country Club) Fourth Addendum to the Effluent Disposal Agreement which extends the terms of the First Addendum for an additional six months to April 1, 2010. ATTACHMENTS: 1. Bulk Reclaimed Water Agreement 032210_ COMM _Regular_603_Tuscawilla_Golf Course Reclaimed_Water_Agreement BULK RECLAIMED WATER AGREEMENT THIS BULK RECLAIMED WATER AGREEMENT ( "Agreement ") is made this _ day of March, 2010, by and between the CITY OF WINTER SPRINGS, FLORIDA, a Florida municipal corporation, whose address is 1126 East State Road 434, Winter Springs, Florida ( "City "), and WINTER SPRINGS GOLF, LLC, a Florida limited liability company whose address is 375 Forsgate Drive, Monroe Township, New Jersey 08831 (Collectively "Customer "). RECITALS: WHEREAS, the primary purpose of this Agreement is for the City to provide to the Customer reclaimed water, which is generally defined as water that has received at least secondary treatment and basic disinfection and is reused after flowing out of a domestic wastewater treatment facility or some other acceptable non - potable water sources; and WHEREAS, the City owns and operates a reclaimed water distribution system and utility within the jurisdictional limits of the City of Winter Springs which consists of a network of pipes, pumping facilities, storage facilities, and appurtenances designed to convey and distribute reclaimed water from one or more domestic wastewater treatments facilities and other facilities to one or more users of reclaimed water; and WHEREAS, Customer owns and operates a golf and tennis club within the City of Winter Springs known as the Tuscawilla Country Club ( "Club "); and WHEREAS, the Customer owns and operates an irrigation distribution system which consists of a network of pipes, pumping facilities, storage facilities, and appurtenances designed to convey and distribute reclaimed and well water on the Club property for irrigation purposes; and WHEREAS, since September 28, 1987, the parties, including their respective predecessors in interests, have had a written agreement whereby the City discharges treated effluent on the Property through the Club's irrigation system at no charge and the City has use of a well on the Property to supplement the amount of reclaimed water available to meet irrigation needs ("1987 Agreement "); and WHEREAS, the parties now desire to terminate the 1987 Agreement and enter into a new reclaimed water agreement under the terms and conditions set forth herein; and WHEREAS, under the new agreement, the City desires to sell, and the Customer desires to purchase, reclaimed water from the City in bulk; and WHEREAS, the parties also desire to allow the City to occasionally withdraw water from the well on the Property in exchange for a credit on future reclaimed water charges that are imposed by the City under this Agreement. 1 NOW, THEREFORE, in consideration of the mutual covenants and conditions contained herein, the parties agree as follows: 1.0 Recitals; Effective Date; Term. 1.1 The foregoing recitals are true and correct and are hereby incorporated herein by this reference. 1.2 The Effective Date of this Agreement shall be the date that it is fully executed by the parties ( "Effective Date "). 1.3 The initial term of this Agreement shall be for a period of ten (10) years from the Effective Date. The parties may extend the term of this Agreement for successive five (5) year terms by mutual written agreement. However, no term extension shall be agreed to by the parties until the current term has six or fewer months remaining. 2.0 Termination of Previous Agreement The Effluent Disposal Easement Agreement, dated September 28, 1987, which was executed by the parties' respective predecessors in interest, is hereby terminated. Neither the City nor the Owner shall have any further rights or obligations under the aforesaid agreement. 3.0 Subject Property. The real property which is the subject of this Agreement is commonly known as the Tuscawilla Country Club property, which consists of a 18 hole golf course and other related club facilities, and which has an address of 1500 Winter Springs Boulevard, Winter Springs, Florida, 32708 ( "Property"). 4.0 Reclaimed Water Service; Customer Demand; Treatment Standards. 4.1 The City agrees to supply reclaimed water service to the Property on an "as needed" basis, subject to the City having the available capacity to provide reclaimed water to the Property and subject to the force majeure provision set forth in section 18.0 of this Agreement. In addition, the Customer acknowledges and agrees that the City provides reclaimed water to all its customers, including the Customer, without preference or priority given to any existing or future customers or to the Customer. 4.2 The parties acknowledge that the Customer is estimating that it will need up to one hundred (100) million gallons of reclaimed water per year in order to irrigate the Property. While the City will use its best efforts to supply that amount of reclaimed water to the Property, the City does not represent, warrant, or guarantee that reclaimed water will be available to meet all of Customer' s demands for reclaimed water. In the event the City is not capable of meeting the Customer' s actual demands for reclaimed water at any given time, the Customer agrees to hold harmless the City from any liability, costs, or damages that Customer may suffer as a result of the City' s inability to supply reclaimed water to the Property, regardless of the reason that the supply is not available. 2 4.3 The supply of reclaimed water provided to the Property by the City shall be treated to the City's general operating protocol standards for treating reclaimed water for all reclaimed water customers, as is or may be required under the City's reclaimed water permit issued by the State of Florida. Customer agrees to accept the supply of reclaimed water under this Agreement in accordance with said general treatment standards. 4.4 Should Customer determine that the volume of reclaimed water made available to Customer is not sufficient to meet Customer' s needs, or should Customer determine that the quality of the reclaimed water is detrimental to maintaining healthy turf conditions, Customer may seek alternative irrigation water sources. In such cases, the City shall cooperate with Customer's application to SJRWMD or other agencies to facilitate Customer's permit application, provided said application does not interfere with any existing or future water permits issued by SJRWMD. 5.0 Rates for Service; Annual Well Usage Credit. 5.1 Customer acknowledges and agrees that the City Commission of Winter Springs has the discretion and right to establish rates, charges, and fees for reclaimed water service pursuant to applicable law. Customer further acknowledges and agrees to pay for reclaimed water service provided by the City under the terms and conditions of this Agreement at a rate established by the City Commission, from time to time. At the Effective Date, the Customer acknowledges that the City has established a bulk/wholesale rate for reclaimed water usage at $0.52 per 1,000 gallons, which is subject to an annual adjustment based on the Consumer Price Index beginning on October 1, 2012 ( "Full Rate "). However, the City and Customer agree that the Full Rate shall initially be phased in during a three year period as follows: A. Commencing on the Effective Date, the rate for the first year of service shall be $ 0.18 per 1,000 gallons. B. Commencing on the first anniversary date of this Agreement, the rate shall be adjusted to $ 0.36 per 1,000 gallons. C. Commencing on the second anniversary date of this Agreement the rate shall be adjusted to $ 0.52 per 1,000 gallons, and said rate shall remain in effect until October 1, 2012. D. At October 1, 2012, the rate imposed for reclaimed water service provided under this Agreement shall be the Full Rate established by the City Commission for bulk reclaimed water service. 5.2 On or about October 15 of each year, Customer shall receive an annual credit on its reclaimed water charges for any water that is withdrawn by the City from Customer's irrigation well located on the Property pursuant to section 7.1 of this Agreement. Said credit shall be calculated by using the quantity of well water (in gallons) withdrawn by the City in the preceding City fiscal year and City's potable irrigation block rate per 1,000 gallons in effect at the end of the preceding City fiscal year. However, the full potable irrigation block rate per 1,000 gallons shall be initially phased in during a three year period in the same proportionate percentage as the Full Rate, as provided in section 5.1 of 3 this Agreement. For example, if the City withdrew 1,000,000 gallons of well water from October 1 to September 30 in the preceding City fiscal year, and said block rate was $1.61 per 1,000 gallons, the credit would be $1,610.00 [1,000,000 gallons /1000 x $1.61]. The credit shall be used to off -set the Customer's next invoice for reclaimed water charges prepared by the City. 5.3 No provision of this Agreement shall be construed to limit, restrict, or modify the City' s rate making authority for reclaimed water services provided hereunder. Said authority shall be exercised solely by the City Commission of Winter Springs in accordance with law, and this Agreement shall be subject to the Commission' s exercise of this authority at all times. 6.0 Invoicing For Service 6.1 The City agrees to provide a detailed monthly invoice setting forth the amount of reclaimed water delivered to the Customer for the preceding billing cycle, the base rate per one thousand gallons, and the amount due. Invoices and related correspondence will be sent to the Tuscawilla Country Club, 1500 Winter Springs Boulevard, Winter Springs, 32708. 6.2 The Customer agrees to pay its monthly invoice for reclaimed service within thirty (30) days of receipt thereof. Should the Customer dispute any or all of any invoice, it shall pay the amount not in dispute and shall submit, in writing, the amount in dispute to the City Manager to be handled in accordance with the City' s written utility billing policies. 7.0 City Use of On -Site Well and Pump Station; Meters; Monitoring Wells. 7.1 Customer currently owns, permits, operates, and maintains a well, pump station, pipe system, and related appurtenances located on the Property for purposes of irrigating the Property. In consideration of the credit provided in section 5.2 of this Agreement, Customer agrees to allow the City to have the non - exclusive use of the water from the well on an "as needed basis." Said water will be pumped by the City to a storage tank owned by the City located off of the Property. At all times, the City shall have the right of entry to enter the Property (excluding Customer's building improvements) to access the well and pump to pump well water to the City' s off -site storage tank. The on -site well, pump, pipe system, and related appurtences shall be permitted, operated, repaired and maintained by the Customer, at the Customer' s sole cost and expense, with the exception of the existing pipe from the Customer's pump to the off -site storage tank owned by the City ( "City Pipe System "). The City shall be responsible for operating, maintaining, repairing, and replacing the City Pipe System at the City' s sole cost and expense. Notwithstanding the aforesaid, nothing herein shall be construed as obligating the Customer to continue the permit for, and operation of, the well. However, if the Customer decides to allow the well permit issued by the SJRWMD to lapse or expire or discontinue the operation of the water well, the City shall have the right, at its sole cost and expense, to permit, operate, repair, and maintain the well for City public purposes. In such case, the Customer shall memorialize that right in writing by promptly conveying to the City a public water well easement in a recordable form reasonably provided by the City. Notwithstanding the provisions of this section 7.1, Customer may, without cost or penalty to the City, and with at least sixty (60) days prior written notice to the City to terminate or close the well and pump station if required pursuant to conditions, requirements or other demands by third parties in relation to obtaining alternate sources of irrigation water. 4 7.2 The City shall maintain, calibrate, and read two (2) separate meters and connection points near the Customer' s existing pump station on the Property at all times and at the City's sole cost and expense. One meter and connection point shall be used for measuring the amount of reclaimed water provided to the Property by the City in accordance with section 4.0 of this Agreement. The other meter and connection point shall be used for measuring the amount of well water pumped by the City to the off -site storage tank. At all times, the City shall have the right of entry to enter the Property to read and calibrate the meters and to operate, maintain, repair, or replace the meters and connection points. 7.3 The City currently maintains several ground water monitoring wells on the Property for water quality analysis as part of its State permit to operate a reclaimed and potable water distribution system and utility. At all times, the City shall have the right of entry to enter the Property to maintain, repair, replace, test, and operate the monitoring wells at the City's sole cost and expense. 7.4 In the event that Customer discovers that any of the City's meters, connection points, and City Pipe System on the Property are malfunctioning, damaged, or in a state of disrepair, Customer agrees to promptly notify the City so the City can take steps to evaluate, correct or repair the problem. 7.5 Customer acknowledges and agrees that tampering with City utility meters is prohibited by law, and that Customer shall not tamper with City meters installed pursuant to this Agreement. 7.6 Customer agrees to provide the City with a copy of its most current consumptive use permit for the well, as may be amended or renewed from time to time, so that the City can be informed of the applicable well water withdrawal limitations and restrictions. In addition, Customer agrees to keep the City apprized of any and all pending or foreseeable permit issues regarding the well including, but not limited to, consumptive use permit reviews, renewals and applications with the St. Johns River Water Management District. 7.7 In order to facilitate the City's right of entry provided in this section 7.0, Customer agrees to furnish the City with a golf cart or other acceptable transportation for the City's personnel to use when accessing the Property in furtherance of the terms and conditions of this Agreement. The City will promptly repair any damage to the golf cart, golf course, tees, or greens caused by or resulting from City personnel's use of the golf cart on the Property. 8.0 Use of Reclaimed Water; Notices to Club Guests. 8.1 Customer acknowledges and agrees that the use of reclaimed water is not for potable water or swimming pool purposes, and that the land application of reclaimed water is governed by applicable local, state, and federal law and administrative rules. Customer agrees to only use reclaimed water for purposes authorized by applicable local, state, and federal law and administrative rules. 8.2 Customer agrees to notify members of the public using the Property for club purposes that the Property is being irrigated with reclaimed water by posting appropriate advisory signs in accordance with applicable provisions of the Florida Administrative Code including, but not limited to, 5 sections 62- 610.468 and 62- 610 -469, Florida Administrative Code, as may be amended from time to time. 9.0 Application of City Utilities Policies. Customer agrees to comply with any and all applicable lawful utility policies adopted by the City for its reclaimed water customers including, but not limited to, polices related to rates, charges, fees, billing, and technical standards. 10.0 Notices. All notices required under this Agreement, excluding invoicing which is addressed in section 6.1 of this Agreement, shall be in writing and delivered to the parties by United States mail, as follows: (A) City of Winter Springs Public Works/Utilities Director 1126 East State Road 434 Winter Springs, FL 32708 (B) General Manager Tuscawilla Country Club 1500 Winter Springs Blvd. Winter Springs, FL 32708 After the Effective Date, each party may freely modify the person designated to receive notices under this Agreement by providing the other party with a written notice identifying said person. 11.0 Integration. The drafting, execution, and delivery of this Agreement by the parties has been induced by no representation, statements, warranties, or agreement other than those expressed herein. This Agreement embodies the entire understanding of the parties related to reclaimed water service, and there are no further or other agreements or understanding, written or oral, in effect between the parties relating to reclaimed water service unless expressly referred to herein. The parties agree that they both contributed equally to the drafting of this Agreement and this Agreement shall not be construed more favorably against the other in the event of any conflict with regards to the terms and conditions used herein. 12.0 Severability. If any part of this Agreement is found invalid or unenforceable by any court, such invalidity or unenforceability shall not effect the other parts of this Agreement if the rights and obligations of the parties contained herein are not materially prejudiced and if the intentions of the parties can still be accomplished. 13.0 Amendments. This Agreement shall only be amended by written instrument signed by both parties. 14.0. Identification and Hold Harmless. To the extent permitted by law, each party agrees to indemnify and hold harmless the other party and the other party's employees, officers, and attorneys from and against all claims, losses, damages, personal injuries (including but not limited to death), or liability (including reasonable attorney's fees), which directly or indirectly arises out of, or results from 6 their own acts or omissions and the acts and omissions of their employees, officers, and attorneys pursuant to this Agreement. This paragraph shall survive termination of this Agreement. 15.0 Sovereign Immunity. Notwithstanding any other provision set forth in this Agreement, nothing contained in this Agreement shall be construed as a waiver of the City's right to sovereign immunity under section 768.28, Florida Statutes, or other limitations imposed on either City's or the City' s officers and employees potential liability under state or federal law. As such, the City shall not be liable under this Agreement for punitive damages or interest for the period before judgment. Further, the City shall not be liable for any claim or judgment, or portion thereof, to any one person for more than one hundred thousand dollars ($100,000.00), or any claim or judgment, or portion thereof, which, when totaled with all other claims or judgments paid by the State or its agencies and subdivisions arising out of the same incident or occurrence, exceeds the sum of two hundred thousand dollars ($200,000.00). This paragraph shall survive termination of this Agreement. 16.0 General Liability and Other Insurance. The parties shall each maintain in force at all time during the term of this Agreement, a general liability insurance policy with coverage amounts reasonable and customary for the respective party. 17.0 Attorney's Fees. In the event of any legal action to enforce the terms of this contract, each party shall bear its own attorney's fees and costs, except as otherwise provided under this Agreement. 18.0 Force Majeure. Neither party shall be liable for failure or delay in performance under this Agreement (other than for delay in payment of money owned by Customer pursuant to sections 5.0 and 6.0 of this Agreement) to the extent said failures or delays are caused by conditions beyond its control including, but not limited to, Acts of God (including hurricane, droughts, tornado, floods, earthquake or other natural disaster), government restrictions, wars, strikes, insurrections, acts of terrorism, and any other cause beyond the reasonable control of the party whose performance is affected, provided that the party affected shall provide the other party with prompt written notice, with full details of the cause being relied upon for non - performance. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused. 19.0 Choice of Law; Venue. This Agreement has been made and entered into in the State of Florida related to utility services that will be provided for, and upon real property, located within Seminole County, Florida. Therefore, the laws of the State of Florida shall govern the validity and interpretation of this Agreement and the performance due hereunder. The parties agree that venue shall be exclusively in Seminole County, Florida, for all state disputes or actions which arise out of or are based upon this Agreement, and in Orlando, Florida, for all federal disputes or actions which are based out of or are based on this Agreement. 20.0 Assignment. This Agreement shall be deemed to run with the Property and shall automatically be assigned to any successor owner of the Property. Customer agrees to fully disclose this Agreement to any future successor owner of the Property prior to any conveyance of the Property. 7 IN WITNESS WHEREOF, the parties have executed this Agreement on this day of - , 2010. CITY: CITY OF WINTER SPRINGS, FLORIDA ATTEST By: By: John F. Bush, Mayor Andrea Lorenzo Luaces, City Clerk Date: Approved as to Form and Sufficiency for The City of Winter Springs Only: By: Anthony A. Garganese, City Attorney CUSTOMER: WINTER SPRINGS GOLF, LLC By: REACT GOLF, LLC, its Managing Member By: Print Name: Title: Date: 8 BULK RECLAIMED WATER AGREEMENT THIS BULK RECLAIMED WATER AGREEMENT ( "Agreement ") is made thisay of March, 2010, by and between the CITY OF WINTER SPRINGS, FLORIDA, a Florida municipal corporation, whose address is 1126 East State Road 434, Winter Springs, Florida ( "City"), and WINTER SPRINGS GOLF, LLC, a Florida limited liability company whose address is 375 Forsgate Drive, Monroe Township, New Jersey 08831 (Collectively "Customer "). RECITALS: WHEREAS, the primary purpose of this Agreement is for the City to provide to the Customer reclaimed water, which is generally defined as water that has received at least secondary treatment and basic disinfection and is reused after flowing out of a domestic wastewater treatment facility or some other acceptable non - potable water sources; and WHEREAS, the City owns and operates a reclaimed water distribution system and utility within the jurisdictional limits of the City of Winter Springs which consists of a network of pipes, pumping facilities, storage facilities, and appurtenances designed to convey and distribute reclaimed water from one or more domestic wastewater treatments facilities and other facilities to one or more users of reclaimed water; and WHEREAS, Customer owns and operates a golf and tennis club within the City of Winter Springs known as the Tuscawilla Country Club ( "Club "); and WHEREAS, the Customer owns and operates an irrigation distribution system which consists of a network of pipes, pumping facilities, storage facilities, and appurtenances designed to convey and distribute reclaimed and well water on the Club property for irrigation purposes; and WHEREAS, since September 28, 1987, the parties, including their respective predecessors in interests, have had a written agreement whereby the City discharges treated effluent on the Property through the Club's irrigation system at no charge and the City has use of a well on the Property to supplement the amount of reclaimed water available to meet irrigation needs ("1987 Agreement "); and WHEREAS, the parties now desire to terminate the 1987 Agreement and enter into a new reclaimed water agreement under the terms and conditions set forth herein; and WHEREAS, under the new agreement, the City desires to sell, and the Customer desires to purchase, reclaimed water from the City in bulk; and WHEREAS, the parties also desire to allow the City to occasionally withdraw water from the well on the Property in exchange for a credit on future reclaimed water charges that are imposed by the City under this Agreement. 1 NOW, THEREFORE, in consideration of the mutual covenants and conditions contained herein, the parties agree as follows: 1.0 Recitals; Effective Date; Term. 1.1 The foregoing recitals are true and correct and are hereby incorporated herein by this reference. 1.2 The Effective Date of this Agreement shall be the date that it is fully executed by the parties ( "Effective Date "). 1.3 The initial term of this Agreement shall be for a period of ten (10) years from the Effective Date. The parties may extend the term of this Agreement for successive five (5) year terms by mutual written agreement. However, no term extension shall be agreed to by the parties until the current term has six or fewer months remaining. 2.0 Termination of Previous Agreement The Effluent Disposal Easement Agreement, dated September 28, 1987, which was executed by the parties' respective predecessors in interest, is hereby terminated. Neither the City nor the Owner shall have any further rights or obligations under the aforesaid agreement. 3.0 Subject Property. The real property which is the subject of this Agreement is commonly known as the Tuscawilla Country Club property, which consists of a 18 hole golf course and other related club facilities, and which has an address of 1500 Winter Springs Boulevard, Winter Springs, Florida, 32708 ( "Property "). 4.0 Reclaimed Water Service; Customer Demand; Treatment Standards. 4.1 The City agrees to supply reclaimed water service to the Property on an "as needed" basis, subject to the City having the available capacity to provide reclaimed water to the Property and subject to the force majeure provision set forth in section 18.0 of this Agreement. In addition, the Customer acknowledges and agrees that the City provides reclaimed water to all its customers, including the Customer, without preference or priority given to any existing or future customers or to the Customer. 4.2 The parties acknowledge that the Customer is estimating that it will need up to one hundred (100) million gallons of reclaimed water per year in order to irrigate the Property. While the City will use its best efforts to supply that amount of reclaimed water to the Property, the City does not represent, warrant, or guarantee that reclaimed water will be available to meet all of Customer's demands for reclaimed water. In the event the City is not capable of meeting the Customer's actual demands for reclaimed water at any given time, the Customer agrees to hold harmless the City from any liability, costs, or damages that Customer may suffer as a result of the City's inability to supply reclaimed water to the Property, regardless of the reason that the supply is not available. 2 4.3 The supply of reclaimed water provided to the Property by the City shall be treated to the City's general operating protocol standards for treating reclaimed water for all reclaimed water customers, as is or may be required under the City's reclaimed water permit issued by the State of Florida. Customer agrees to accept the supply of reclaimed water under this Agreement in accordance with said general treatment standards. 4.4 Should Customer determine that the volume of reclaimed water made available to Customer is not sufficient to meet Customer's needs, or should Customer determine that the quality of the reclaimed water is detrimental to maintaining healthy turf conditions, Customer may seek alternative irrigation water sources. In such cases, the City shall cooperate with Customer's application to SJRWMD or other agencies to facilitate Customer's permit application, provided said application does not interfere with any existing or future water permits issued by SJRWMD. 5.0 Rates for Service; Annual Well Usage Credit. 5.1 Customer acknowledges and agrees that the City Commission of Winter Springs has the discretion and right to establish rates, charges, and fees for reclaimed water service pursuant to applicable law. Customer further acknowledges and agrees to pay for reclaimed water service provided by the City under the terms and conditions of this Agreement at a rate established by the City Commission, from time to time. At the Effective Date, the Customer acknowledges that the City has established a bulk/wholesale rate for reclaimed water usage at $0.52 per 1,000 gallons, which is subject to an annual adjustment based on the Consumer Price Index beginning on October 1, 2012 ( "Full Rate "). However, the City and Customer agree that the Full Rate shall initially be phased in during a three year period as follows: A. Commencing on the Effective Date, the rate for the first year of service shall be $ 0.18 per 1,000 gallons. B. Commencing on the first anniversary date of this Agreement, the rate shall be adjusted to $ 0.36 per 1,000 gallons. C. Commencing on the second anniversary date of this Agreement the rate shall be adjusted to $ 0.52 per 1,000 gallons, and said rate shall remain in effect until October 1, 2012. D. At October 1, 2012, the rate imposed for reclaimed water service provided under this Agreement shall be the Full Rate established by the City Commission for bulk reclaimed water service. 5.2 On or about October 15 of each year, Customer shall receive an annual credit on its reclaimed water charges for any water that is withdrawn by the City from Customer's irrigation well located on the Property pursuant to section 7.1 of this Agreement. Said credit shall be calculated by using the quantity of well water (in gallons) withdrawn by the City in the preceding City fiscal year and City's potable irrigation block rate per 1,000 gallons in effect at the end of the preceding City fiscal year. However, the full potable irrigation block rate per 1,000 gallons shall be initially phased in during a three year period in the same proportionate percentage as the Full Rate, as provided in section 5.1 of 3 this Agreement. For example, if the City withdrew 1,000,000 gallons of well water from October 1 to September 30 in the preceding City fiscal year, and said block rate was $1.61 per 1,000 gallons, the credit would be $1,610.00 [1,000,000 gallons /1000 x $1.61]. The credit shall be used to off -set the Customer's next invoice for reclaimed water charges prepared by the City. 5.3 No provision of this Agreement shall be construed to limit, restrict, or modify the City's rate making authority for reclaimed water services provided hereunder. Said authority shall be exercised solely by the City Commission of Winter Springs in accordance with law, and this Agreement shall be subject to the Commission's exercise of this authority at all times. 6.0 Invoicing For Service 6.1 The City agrees to provide a detailed monthly invoice setting forth the amount of reclaimed water delivered to the Customer for the preceding billing cycle, the base rate per one thousand gallons, and the amount due. Invoices and related correspondence will be sent to the Tuscawilla Country Club, 1500 Winter Springs Boulevard, Winter Springs, 32708. 6.2 The Customer agrees to pay its monthly invoice for reclaimed service within thirty (30) days of receipt thereof. Should the Customer dispute any or all of any invoice, it shall pay the amount not in dispute and shall submit, in writing, the amount in dispute to the City Manager to be handled in accordance with the City's written utility billing policies. 7.0 City Use of On -Site Well and Pump Station; Meters; Monitoring Wells. 7.1 Customer currently owns, permits, operates, and maintains a well, pump station, pipe system, and related appurtenances located on the Property for purposes of irrigating the Property. In consideration of the credit provided in section 5.2 of this Agreement, Customer agrees to allow the City to have the non - exclusive use of the water from the well on an "as needed basis." Said water will be pumped by the City to a storage tank owned by the City located off of the Property. At all times, the City shall have the right of entry to enter the Property (excluding Customer's building improvements) to access the well and pump to pump well water to the City's off -site storage tank. The on -site well, pump, pipe system, and related appurtences shall be permitted, operated, repaired and maintained by the Customer, at the Customer's sole cost and expense, with the exception of the existing pipe from the Customer's pump to the off -site storage tank owned by the City ( "City Pipe System "). The City shall be responsible for operating, maintaining, repairing, and replacing the City Pipe System at the City's sole cost and expense. Notwithstanding the aforesaid, nothing herein shall be construed as obligating the Customer to continue the permit for, and operation of, the well. However, if the Customer decides to allow the well permit issued by the SJRWMD to lapse or expire or discontinue the operation of the water well, the City shall have the right, at its sole cost and expense, to permit, operate, repair, and maintain the well for City public purposes. In such case, the Customer shall memorialize that right in writing by promptly conveying to the City a public water well easement in a recordable form reasonably provided by the City. Notwithstanding the provisions of this section 7.1, Customer may, without cost or penalty to the City, and with at least sixty (60) days prior written notice to the City to terminate or close the well and pump station if required pursuant to conditions, requirements or other demands by third parties in relation to obtaining alternate sources of irrigation water. 4 7.2 The City shall maintain, calibrate, and read two (2) separate meters and connection points near the Customer's existing pump station on the Property at all times and at the City's sole cost and expense. One meter and connection point shall be used for measuring the amount of reclaimed water provided to the Property by the City in accordance with section 4.0 of this Agreement. The other meter and connection point shall be used for measuring the amount of well water pumped by the City to the off -site storage tank. At all times, the City shall have the right of entry to enter the Property to read and calibrate the meters and to operate, maintain, repair, or replace the meters and connection points. 7.3 The City currently maintains several ground water monitoring wells on the Property for water quality analysis as part of its State permit to operate a reclaimed and potable water distribution system and utility. At all times, the City shall have the right of entry to enter the Property to maintain, repair, replace, test, and operate the monitoring wells at the City's sole cost and expense. 7.4 In the event that Customer discovers that any of the City's meters, connection points, and City Pipe System on the Property are malfunctioning, damaged, or in a state of disrepair, Customer agrees to promptly notify the City so the City can take steps to evaluate, correct or repair the problem. 7.5 Customer acknowledges and agrees that tampering with City utility meters is prohibited by law, and that Customer shall not tamper with City meters installed pursuant to this Agreement. 7.6 Customer agrees to provide the City with a copy of its most current consumptive use permit for the well, as may be amended or renewed from time to time, so that the City can be informed of the applicable well water withdrawal limitations and restrictions. In addition, Customer agrees to keep the City apprized of any and all pending or foreseeable permit issues regarding the well including, but not limited to, consumptive use permit reviews, renewals and applications with the St. Johns River Water Management District. 7.7 In order to facilitate the City's right of entry provided in this section 7.0, Customer agrees to furnish the City with a golf cart or other acceptable transportation for the City's personnel to use when accessing the Property in furtherance of the terms and conditions of this Agreement. The City will promptly repair any damage to the golf cart, golf course, tees, or greens caused by or resulting from City personnel's use of the golf cart on the Property. 8.0 Use of Reclaimed Water; Notices to Club Guests. 8.1 Customer acknowledges and agrees that the use of reclaimed water is not for potable water or swimming pool purposes, and that the land application of reclaimed water is governed by applicable local, state, and federal law and administrative rules. Customer agrees to only use reclaimed water for purposes authorized by applicable local, state, and federal law and administrative rules. 8.2 Customer agrees to notify members of the public using the Property for club purposes that the Property is being irrigated with reclaimed water by posting appropriate advisory signs in accordance with applicable provisions of the Florida Administrative Code including, but not limited to, 5 sections 62- 610.468 and 62- 610 -469, Florida Administrative Code, as may be amended from time to time. 9.0 Application of City Utilities Policies. Customer agrees to comply with any and all applicable lawful utility policies adopted by the City for its reclaimed water customers including, but not limited to, polices related to rates, charges, fees, billing, and technical standards. 10.0 Notices. All notices required under this Agreement, excluding invoicing which is addressed in section 6.1 of this Agreement, shall be in writing and delivered to the parties by United States mail, as follows: (A) City of Winter Springs Public Works/Utilities Director 1126 East State Road 434 Winter Springs, FL 32708 (B) General Manager Tuscawilla Country Club 1500 Winter Springs Blvd. Winter Springs, FL 32708 After the Effective Date, each party may freely modify the person designated to receive notices under this Agreement by providing the other party with a written notice identifying said person. 11.0 Integration. The drafting, execution, and delivery of this Agreement by the parties has been induced by no representation, statements, warranties, or agreement other than those expressed herein. This Agreement embodies the entire understanding of the parties related to reclaimed water service, and there are no further or other agreements or understanding, written or oral, in effect between the parties relating to reclaimed water service unless expressly referred to herein. The parties agree that they both contributed equally to the drafting of this Agreement and this Agreement shall not be construed more favorably against the other in the event of any conflict with regards to the terms and conditions used herein. 12.0 Severability. If any part of this Agreement is found invalid or unenforceable by any court, such invalidity or unenforceability shall not effect the other parts of this Agreement if the rights and obligations of the parties contained herein are not materially prejudiced and if the intentions of the parties can still be accomplished. 13.0 Amendments. This Agreement shall only be amended by written instrument signed by both parties. 14.0. Identification and Hold Harmless. To the extent permitted by law, each party agrees to indemnify and hold harmless the other party and the other party's employees, officers, and attorneys from and against all claims, losses, damages, personal injuries (including but not limited to death), or liability (including reasonable attorney's fees), which directly or indirectly arises out of, or results from 6 their own acts or omissions and the acts and omissions of their employees, officers, and attorneys pursuant to this Agreement. This paragraph shall survive termination of this Agreement. 15.0 Sovereign Immunity. Notwithstanding any other provision set forth in this Agreement, nothing contained in this Agreement shall be construed as a waiver of the City's right to sovereign immunity under section 768.28, Florida Statutes, or other limitations imposed on either City's or the City's officers and employees potential liability under state or federal law. As such, the City shall not be liable under this Agreement for punitive damages or interest for the period before judgment. Further, the City shall not be liable for any claim or judgment, or portion thereof, to any one person for more than one hundred thousand dollars ($100,000.00), or any claim or judgment, or portion thereof, which, when totaled with all other claims or judgments paid by the State or its agencies and subdivisions arising out of the same incident or occurrence, exceeds the sum of two hundred thousand dollars ($200,000.00). This paragraph shall survive termination of this Agreement. 16.0 General Liability and Other Insurance. The parties shall each maintain in force at all time during the term of this Agreement, a general liability insurance policy with coverage amounts reasonable and customary for the respective party. 17.0 Attorney's Fees. In the event of any legal action to enforce the terms of this contract, each party shall bear its own attorney's fees and costs, except as otherwise provided under this Agreement. 18.0 Force Majeure. Neither party shall be liable for failure or delay in performance under this Agreement (other than for delay in payment of money owned by Customer pursuant to sections 5.0 and 6.0 of this Agreement) to the extent said failures or delays are caused by conditions beyond its control including, but not limited to, Acts of God (including hurricane, droughts, tornado, floods, earthquake or other natural disaster), government restrictions, wars, strikes, insurrections, acts of terrorism, and any other cause beyond the reasonable control of the party whose performance is affected, provided that the party affected shall provide the other party with prompt written notice, with full details of the cause being relied upon for non - performance. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused. 19.0 Choice of Law; Venue. This Agreement has been made and entered into in the State of Florida related to utility services that will be provided for, and upon real property, located within Seminole County, Florida. Therefore, the laws of the State of Florida shall govern the validity and interpretation of this Agreement and the performance due hereunder. The parties agree that venue shall be exclusively in Seminole County, Florida, for all state disputes or actions which arise out of or are based upon this Agreement, and in Orlando, Florida, for all federal disputes or actions which are based out of or are based on this Agreement. 20.0 Assignment. This Agreement shall be deemed to run with the Property and shall automatically be assigned to any successor owner of the Property. Customer agrees to fully disclose this Agreement to any future successor owner of the Property prior to any conveyance of the Property. 7 IN WITNESS WHEREOF, the parties have executed this Agreement on thi day of - (l G.Ac k , 2010. CITY: CITY OF WINTER SPRINGS, FLORIDA ATTEST (6 B ( _ -‘11111111111111111" By: Y o n F. Bush, Mayor All rea Lorenzo Luaces, City Clerk Date: 3/a ap0 Approved as to Form and Sufficiency for The Cit inter Springs Only: By: Anthony A. Garganese, City Attorney CUSTOMER: WINTER SPRINGS GOLF, LLC By: REACT GOLF, LLC, its Managing Member By: Print Name: Mu44- 1 1'e4..) Title: M ete , c_- ✓ P Date: 4 / //a 8