HomeMy WebLinkAboutYankee Lake Regional Water Treatment FacilityCOUNTY MANAGER'S OFFICE
March 24, 2009
Mr. John Bush, Mayor
Winter Springs City Hall
1126 E. State Road 434
Winter Springs, Florida 32708
Subject: Yankee Lake Regional Water Treatment Facility
Dear Mayor Bush:
SEMINOLE C.OLINTY
FLORIDA'S NATURAL CHOICE
~~~"l;~
~~ w, ~' ~ ~ ~~~~~
CI'iY C)i'~ VWI"dTFF? SPRINGS
OFFICE OF Tt-1G CITY CLERK
M/cM/PH/
As discussed in the March 17th Mayors and Managers meeting, attached are the
most current documents for the Yankee Lake Regional Water Treatment Facility for
distribution to the Seminole Cities. These include the:
• Draft Yankee Lake Memorandum of Understanding for Development of Project
Agreement
• Draft Yankee Lake Regional Wholesale Pofable Water Supply Agreement
• Provisions and Next Steps Summary
These drafts are a culmination of the successful progress the Yankee Lake regional
project has made over the past 24 months. This progress has put Seminole County
in a favorable position to move forward with this facility with our project Participants.
The project has a surface water Consumptive Use Permit pending award after a
successful Chapter 120 hearing on our proposed Phase 1 withdrawal of 5.5 MGD.
The strong recommended order, in Seminole County's favor, establishes this project
with less regulatory risk moving forward for our initial phase as well as subsequent
regional phases. This results in savings of time and money as we move forward
towards this regional vision.
This project has an FDEP permitted regional intake structure on the river with a
nominal capacity of 50 MGD. This was done successfully due to the unique Yankee
Lake site being able to recess the intake within aman-made canal. The US Army
Corps of Engineers permit for this intake is near completion and is expected in the
next 60 days.
Due to this progress, as well as the SJRWMD 2013 Central Florida Coordination
Area (CFCA) requirements, the Yankee Lake regional project is rapidly moving
forward with the attached draft agreements. These draft agreements are being used
as the basis for beginning negotiations among the Project Participants as to a final
MOU by June 15, 2009 and a final potable water supply agreement for execution by
October 1, 2009.
1101 EAST FIRST STREET SANFORD FL 32771-1468 TELEPHONE (407) 665-7219 FAX (407) 665-7958
Upon receipt from all Participants of the executed Water Supply Agreement,
Capacity Reservation Schedule and applicable Project Development Charges by
October 1, 2009, Seminole County will commence Consumptive Use permitting with
Project Participants and Preliminary (20% Level) Design for Phase 1 of the Yankee
Lake Regional Water Supply Facility including the primary transmission system.
Although we all face difficult financial times, the need to plan and prepare for the
future of our communities is equally as real. Seminole County remains committed
to the participation of the Seminole Cities in this important regional project. In an
effort to balance Seminole's efforts to effectively move ahead with this Project, while
giving the Participants time to evaluate and compare this Project with their other
options for AWS, we are pleased to offer the City of Winter Springs the same
Memorandum of Understanding that is being offered to other Participants.
This affords the City the opportunity to participate in this Project with limited financial
exposure up until October 1; if you choose to execute the Yankee Lake Regional
Water Supply Agreement by that date, your payment for the MOU will be credited
toward your Project Development Charge for the Water Supply Agreement.
We look forward to continuing this important regional project with you. Please do not
hesitate to contact me if you have any questions.
Sincerely,
Bob Dallari, Chairman
Board of County Commissioners
Seminole County Government
Enclosures
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YANKEE LAKE MEMORANDUM OF UNDERSTANDING
FOR
DEVELOPMENT OF PROJECT AGREEMENT
THIS YANKEE LAKE MEMORANDUM OF UNDERSTANDING FOR DEVELOPMENT OF
PROJECT AGREEMENT (~~Agreement") is made and entered into this
day of 2009, by and between SEMINOLE COUNTY, a political
subdivision of the State of Florida, whose address is Seminole County
Services Building, 1101 East First Street, Sanford, Florida 32771,
hereinafter referred to as ~~SEMINOLE", the CITY OF APOPKA, a Florida
municipal corporation, whose mailing address is Post Office Box 1229,
Apopka, Florida 32704-1229, the CITY OF DELAND, a Florida municipal
corporation, whose address is 120 South Florida Avenue, Deland,
Florida 32720, the CITY OF DELTONA, a Florida municipal corporation,
whose address is 2345 Providence Avenue, Deltona, Florida 32725, the
CITY OF EUSTIS, a Florida municipal corporation, whose mailing address
is Post Office Drawer, Eustis, Florida 32727-0068, the CITY OF
LONGWOOD, a Florida municipal corporation, whose address is 175 West
Warren Avenue, Longwood, Florida 32750, the CITY OF LAKE MARY, a
Florida municipal corporation, whose address is 100 North Country Club
Road, Lake Mary, Florida 32796, the CITY OF ORANGE CITY, a Florida
municipal corporation, whose address is 229 East Graves Avenue, Orange
City, Florida 32763, the CITY OF OVIEDO, a Florida municipal
corporation, whose mailing address is Post Office Box 159, Oviedo,
Florida 32765, the CITY OF SANFORD, a Florida municipal corporation,
whose mailing address is Post Office Box 1778, Sanford, Florida 32772-
1778, COUNTY of VOLUSIA, a political subdivision of the State of
Florida, whose address is Thomas C. Kelly Administrative Center, 123
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29 West Indiana Avenue, Deland, Florida, 32720 and the CITY OF WINTER
30 PARK, a Florida municipal corporation, whose address is 901 Park
31 Avenue South, Winter Park, Florida 32789-4386, each of which shall be
32 a purchaser of wholesale potable water from SEMINOLE and hereinafter
33 collectively referred to as 'Participants".
34 W I T N E S S E T H:
35 WHEREAS, the parties to this Agreement are all local government
36 potable water suppliers located within the Central Florida
37 Coordination Area (CFCA); and
38 WHEREAS, the parties are all subject to the CFCA Rule providing
39 that no new permits for groundwater withdrawals will be granted after
40 year 2013, and that the parties instead must develop alternative water
41 supplies (AWS) to meet future water needs; and
42 WHEREAS, the parties are all desirous of securing for their
43 citizens and customers a dependable long-term alternative supply of
44 potable water that will meet the timing and other regulatory
45 requirements of the St. Johns River Water Management District, and
46 that will meet the projected growth demands of their communities, in
47 the most cost-effective manner possible; and
48 WHEREAS, the Participants have been considering several proposed
49 alternative water supply projects that offer potential solutions to
50 their alternative water supply needs; and
51 WHEREAS, SEMINOLE COUNTY's project for the development of the
52 Yankee Lake Regional Water Supply Facility is significantly ahead of
53 all other projects in terms of site acquisition; concept and
54 engineering design and permitting and financial analysis; and
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55 WHEREAS, SEMINOLE is expecting to obtain a surface water
56 Consumptive Use Permit for an initial 5.5 MGD phase of the Yankee Lake
57 Facility in April, 2009, which phase will include an over-sized intake
58 for a regional water facility; and
59 WHEREAS, SEMINOLE is moving forward with its Yankee Lake Project,
60 both for purposes of trying to meet the CFCA 2013 deadline, and for
61 purposes of making application for SJRWMD grant funds for the Project;
62 and
63 WHEREAS, representatives of the Participants have been involved
64 in discussions with SEMINOLE for more than eighteen months regarding
65 participation in a regional Yankee Lake Project; and
66 WHEREAS, SEMINOLE has prepared and submitted to the Participants
67 a draft Water Supply Agreement with corresponding Capacity Reservation
68 Schedule, which Agreement will require the payment of Project
69 Development Charges; and
70 WHEREAS, upon receipt from all Participants of an executed Water
71 Supply Agreement, Capacity Reservation Schedule and applicable Project
72 Development Charge by October 1, 2009, SEMINOLE will commence
73 Consumptive Use Permitting with the Project Participants and
74 Preliminary (20~ Level) Design Plans for Phase 1 of the Yankee Lake
75 Regional Water Supply Facility and Primary Transmission System; and
76 WHEREAS, the Participants agree that it is their best interest
77 for SEMINOLE to continue to advance development of the Yankee Lake
78 Project, and they desire to preserve the option, until October 1,
79 2009, to become Participants in the Yankee Lake Water Supply
80 Agreement; but at this time, they desire to limit their financial
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8l commitment to the Yankee Lake Project and to retain the flexibility to
82 continue to explore and possibly ultimately elect a different
83 alternative supply solution; and
84 WHEREAS, the Participants recognize the progress SEMINOLE has
85 already achieved in the development of the Yankee Lake Water Supply
86 Facility, including, but not limited to the following: (a) SEMINOLE
87 has acquired the Yankee Lake site, a 2,750 acre tract of land adjacent
88 to the St. Johns River; (b) SEMINOLE has implemented an infrastructure
89 delivery program for immediate commencement of implementation for
90 expedited delivery of a regional Yankee Lake Project; and (c)
91 SEMINOLE has undertaken the study, and conceptual design for the
92 construction of a reverse osmosis water treatment facility for potable
93 water supply at the Yankee Lake site, herein referred to as the Yankee
94 Lake Regional Water Treatment Facility, or "Facility."; (d) SEMINOLE
95 is obtaining the required permit from the Army Corps of Engineers for
96 the regional intake structure for Yankee Lake; (e) SEMINOLE has
97 obtained the Environmental Resource Permit (ERP) from the Department
98 of Environmental Protection for the regional intake structure for
99 Yankee Lake; (f) SEMINOLE has obtained a favorable Recommended Order
100 for its 5.5 MGD CUP for Yankee Lake for re-use augmentation and
101 potable purposes; (g) SEMINOLE has prepared plans and is ready to go
102 out to bid for the initial phase of the Project.
103 WHEREAS, the Participants are willing to partially underwrite the
104 expenses that have been, and will be incurred by SEMINOLE, with
105 respect to development and presentation to the parties of optional
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106 funding scenarios; options for development of a transmission system
107 plan; and, development of a final water supply agreement; and
108 WHEREAS, the Participants desire to have SEMINOLE develop
l09 financial data and pro forma scenarios to enable them to evaluate
110 their potential cost of participation in the Yankee Lake Project; and
111 WHEREAS, SEMINOLE needs to receive from each Participant its best
]12 judgment of its thirty-year water subscription in order for SEMINOLE
113 to be able develop the referenced financial data and pro forma
114 scenarios; and
115 WHEREAS, SEMINOLE is also in need of the best information
116 available from each Participant relevant to the Primary Transmission
117 System and Points of Delivery; and
1]$ WHEREAS, the goal of this Agreement is to provide bridge funding
119 to SEMINOLE to enable it to continue development of a final agreement
120 and Project planning.
121 NOW, THEREFORE, in consideration of the foregoing premises and
]22 the mutual covenants and agreements hereafter set forth, SEMINOLE and
123 the Participants intending to be legally bound hereby agree as
124 follows:
125 Section 1. Preamble. The foregoing statements are true and
126 correct and form a material part of this Agreement, and upon which
127 each of the parties have relied.
12$ Section 2. Authority. This Agreement is entered under the
129 following authorities:
130 (a) (For counties) The counties enter into this Agreement under
13l the authority of its home rule powers, as well as Sections
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132 125.01(1) (k)1, 125.01(1) (p), 125.01(3) (a), and ar~~.0,
133 Florida Statutes, which authorize counties to enter into
134 agreements with other public agencies and private
135 corporations to accomplish goals for providing water to
136 their customers.
137 (b) (For municipalities) The municipalities enter into this
138 Agreement under the authority of Sections 163.01,
139 166.021(1), 180.02, and 180.06(3), Florida Statutes, which
140 authorize municipalities to enter into agreements to
141 further their efforts to provide water to their residents
142 and customers.
143 Section 3. Party Responsibilities.
144 (a) Participants. Participants each agree to the following
145 actions:
146 1. Deliver to SEMINOLE their most accurate thirty year
147 water subscription, no later than March 30, 2009.
148 2. Participants shall fund this agreement pursuant to
149 Section 4.
150 3. To identify major issues for resolution in the draft
151 Yankee Lake Water Supply Agreement no later than July 1,
152 2009.
153 4. To hold necessary briefings or workshops with their
154 respective governing boards concerning the evaluation and
155 approval, before October 1, 2009, of a final Yankee Lake
156 Water Supply Agreement.
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157 5. Present this Agreement to its governing board for
158 approval before June 15, 2009.
159 6. Regularly meet and negotiate in good faith with SEMINOLE
160 concerning terms and conditions of a final Yankee Lake
161 Water Supply Agreement, with an objective of execution by
162 October 1, 2009.
163 7. Notify SEMINOLE at the earliest possible date upon
164 reaching a decision to opt out of participation in the
165 Yankee Lake Project.
166 (b) SEMINOLE. SEMINOLE agrees to the following actions:
167 1. After receipt of up-dated Facility capacity reservations
168 from all Participants, to develop and to deliver to each
169 Participant it's individual pro forma Project Development
170 Charge amount.
171 2. Develop pro forma water rates under multiple scenarios.
172 3. Develop preliminary transmission system planning and
173 routing based on input received from Participants.
174 4. Apply for construction grant funding from the SJRWMD for
175 the Yankee Lake Project, the receipt of which would be
176 devoted by SEMINOLE to buying down project development
177 costs for the benefit of all Participants who execute a
178 final Yankee Lake Water Supply Agreement.
179 5. Advise Participants of SEMINOLE's proposed rate of return
180 for the Yankee Lake Water Supply Agreement.
181 6. To hold necessary briefings or workshops with the
182 Seminole County Board of County Commissioners concerning
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183 the evaluation and approval, before October 1, 2009, of a
184 final Yankee Lake Water Supply Agreement.
185 7. Present this Agreement to its governing board for
186 approval before June 15, 2009.
187 8. Regularly meet and negotiate in good faith with
188 Participants, either individually or collectively,
189 concerning terms and conditions of a final Yankee Lake
190 Water Supply Agreement, with the objective of execution
191 by October 1, 2009.
192 Section 4. Funding. For purposes of funding the undertakings
193 contained herein, Participants have been included in one of three
194 classes, based on the amount of their respective Capacity Reservation
1 QS c.-ho~a„ l o
196 (a) Class A Participants ( 1 MGD to 4 MGD Reservation),
197 $75,000.00.
198 (b) Class B Participants ( 5 MGD to 15 MGD Reservation),
199 sloo,ooo.oo.
200 Participants, by execution of this Agreement, agree to deliver
201 the payment corresponding to their foregoing classification, in a
202 single lump-sum amount to SEMINOLE, within ten days after
203 execution hereof. The foregoing payments are non-refundable,
204 irrespective of whether an individual Participant executes a
205 final Yankee Lake Water Supply Agreement. The Participants
206 acknowledge that the payment provided for herein is not the
207 Project Development Charge referenced in the draft Yankee Lake
208 Water Supply Agreement; however, any Participant who executes a
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209 final Yankee Lake Water Supply Agreement and pays its Project
210 Development Charge as provided in that Agreement, on or before
211 October 1, 2009, shall receive a credit of the foregoing payment
212 toward the amount of such Project Development Charge.
213 Section 5. Milestones. The parties agree to work in good faith
214 and to give their best efforts toward the accomplishment of the
215 following milestones in order to finalize the Yankee Lake Water Supply
216 Agreement before October 1, 2009:
217 (a) Submit Capacity Reservation Schedules to Seminole no
21$ later than March 30, 2009.
2l9 (b) Participate in Pro Forma review workshop scheduled for
220 May 15, 2009.
221 (c) Execute and submit to SEMINOLE this MOU and applicable
222 payment by June 15, 2009.
223 Section 6. Relationship of this Agreement to Yankee Lake Water
224 Supply Agreement. Execution of this Agreement, and payment of each
225 Participant's appropriate fee, is a pre-condition to participation in
226 the Yankee Lake Water Supply Agreement. Notwithstanding that,
227 execution of this Agreement creates no obligation on the part of
228 Participant to execute the Yankee Lake Water Supply Agreement, and any
229 Participant may choose to opt out of participation in the Yankee Lake
230 Water Supply Agreement. There shall be no partial or full refunds of
231 the payments made pursuant to this Agreement in the event any
232 Participant elects to opt-out of participation in the Yankee Lake
233 Water Supply Agreement.
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Section 7. Entire Agreement. This Agreement represents the
entire agreement of the parties with respect to the undertakings
described herein and supersedes all prior contracts, agreements or
understandings with respect to such undertakings, whether oral or
written, except to the extent such agreements are specifically
referenced herein. Each party agrees that the other party (and its
agents and representatives) has not made, and has not relied upon, any
representation, warranty, covenant or agreement relating to the
undertakings contemplated hereunder other than those expressly set
forth herein.
IN WITNESS WHEREOF, the parties to this YLRWSA have caused their
names to be affixed hereto by the proper officers thereof.
ATTEST: CITY OF APOPKA
JANICE G. GOEBEL, Clerk
ATTEST:
JULIE HENNESSY, Clerk
ATTEST:
By:
Faith G. Miller, Clerk
ATTEST:
JOHN H. LAND, Mayor
Date:
CITY OF DELAND
By:
ROBERT APGAR, Mayor
Date:
CITY OF DELTONA
By:
DENNIS MULDER, Mayor
Date:
CITY OF EUSTIS
By:
SCOTT ALES, Mayor
JUDY ROBERTS, Clerk
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277 ATTEST:
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281 CAROL A. FOSTER, Clerk
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286 ATTEST:
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289 SARAH M. MIRUS, Clerk
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297 DEBBIE RENNER, Clerk
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302 ATTEST:
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305 BARBARA BARBOUR, Clerk
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310 ATTEST:
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313 JANET R. DOUGHERTY, Clerk
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318 ATTEST:
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321 JAMES T. DINNEEN, Clerk
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Date:
CITY OF LAKE MARY
By:
DAVID MEALOR, Mayor
Date:
CITY OF LONGWOOD
By:
BRIAN D. SACKETT, Mayor
Date:
CITY OF ORANGE CITY
By:
HARLEM STRICKLAND, Mayor
Date:
CITY OF OVIEDO
By:
THOMAS G. WALTERS, Mayor
Date:
CITY OF SANFORD
By:
LINDA KUHN, Mayor
Date:
COUNTY OF VOLUSIA, FLORIDA
By
FRANK BRUNO, JR., Chairman
Date:
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ATTEST:
CINDY BONHAM, Clerk
CITY OF WINTER PARK
By:
Date:
DAVID C. STRONG, Mayor
(Balance of this page intentionally blank; signatory page continues]
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347 ATTEST:
348
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350 MARYANNE MORSE
351 Clerk to the Board of
352 County Commissioners of
353 Seminole County, Florida.
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355 For the use and reliance
356 of Seminole County only.
357
358 Approved as to form and
359 legal sufficiency.
360
361
362 County Attorney
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365 MGM
366 03/18/09
367 P:\Users\MGM\YANKEE LAKE MOU Delivery.doc
368
BOARD OF COUNTY COMMISSIONERS
SEMINOLE COUNTY, FLORIDA
By:
BOB DALLARI, Chairman
Date:
As authorized for execution by the Board
of County Commissioners at its ,
2009, regular meeting.
13
YANKEE LAKE REGIONAL WHOLESALE POTABLE WATER SUPPLY AGREEMENT
[DRAFT _Tuesday, Feb. 17, 2009]--
YANKEE LAKE REGIONAL WHOLESALE POTABLE WATER SUPPLY AGREEMENT
Table of Contents
Section 1. Preamble ............................................... 7
Section 2. Structure of Agreement ................................. 8
Section 3. Term of Agreement ..................................... 10
Section 4. Goals to be Achieved by Agreement ..................... 10
Section 5. Definitions . .......................................... 12
Section 6. Roles and Responsibilities of Parties ................. 17
Section 7. Nature of Project ..................................... 24
Section 8. Project Development and Financing . .................... 25
Section 9. Certification of Available Capacity ................... 28
Section 10. "Take or Pay" Water Quantities .......................... 29
Section 11. Seminole/Yankee Lake Water Rates ........................ 33
SECTION 12. Additional Representations, Warranties and Covenants of
SEMINOLE ............................................................ 37
SECTION 13. Additional Representations, Warranties and Covenants of
the PARTICIPANTS .................................................... 38
Section 14. Participant Financing ................................... 41
Section 15. Billing and Payment ..................................... 42
Section 16. Metering Equipment ...................................... 44
Section 17. Joint Funding of Additional Capital Improvements........ 45
Section 18..Re-Rating Yankee Lake Water System ...................... 45
Section 19. Changes in Regulations .................................. 46
Section 20. Permits ................................................. 46
Section 21. Contingencies ........................................... 48
Section 22. Water Supply Conditions ................................. 48
Section 23. Continuity of Service ................................... 98
Section 29. Emergency / Maintenance Usage by Participant............ 50
Section 25. Water Quality ........................................... 50
Section 26. Resale to Other Water Suppliers ......................... 51
Section 27. Water System Planning and Cooperation ................... 51
Section 28. Water Resource Conservation ............................. 52
Section 29. Water Curtailment and Protection of Water System........ 53
Section 30. Dispute Resolution ...................................... 55
Section 31. Default and Remedy ...................................... 57
Section 32. No Additional Waiver Implied ............................ 58
Section 33. Indemnification ......................................... 58
Section 34. Insurance ............................................... 59
Section 35. Assignment .............................................. 59
Section 36. Successors and Assigns .................................. 60
Section 37. Disclaimer of Third-Party Beneficiaries ................. 60
Section 38. Relationship of Parties ................................. 60
Section 39. Initial Implementation .................................. 61
Section 40. Notices ................................................. 61
Section 41. Compliance With Laws and Regulations..........._......... 62
Section 42. Governing Law; Jurisdiction and Specific Performance.... 62
Section 93. Counterparts ............................................ 62
Section 44. Severability ............................................ 63
Section 45. Entire Agreement; Amendment ............................. 64
Yankee Lake Regional Water Potable Water Supply Agreement
Page 1 of 73
Section 46. Incorporation of Exhibits and Schedules ................. 64
Section 47. Interpretation and Reliance ............................. 64
Section 48. Headings; Table of Contents ............................. 64
Section 49. Further Assurances ...................................... 65
Section 50. Consents ................................................ 65
Section 51. Interlocal Agreement and Effective Date ................. 65
Yankee Lake Regional Water Potable Water Supply Agreement
Page 2 of 73
THIS YANKEE LAKE REGIONAL WHOLESALE POTABLE WATER SUPPLY
AGREEMENT ("YLRWSA") is made and entered into this day of
2009, by and between SEMINOLE COUNTY, a political
subdivision of the State of Florida, whose address is Seminole County
Services Building, 1101 East First Street, Sanford, Florida 32771,
hereinafter referred to as ~~SEMINOLE", the CITY OF APOPRA, a Florida
municipal corporation, whose mailing address is Post Office Box 1229,
Apopka, Florida 32704-1229, the CITY OF DELAND, a Florida municipal
corporation, whose mailing address is 120 South Florida Avenue,
Deland, Florida 32720, the CITY OF DELTONA, a Florida municipal
corporation, whose mailing address is 2395 Providence Avenue, Deltona,
Florida 32725, the CITY OF EUSTIS, a Florida municipal corporation,
whose mailing address is Post Office Drawer, Eustis, Florida 32727-
0068, the CITY OF LONGWOOD, a Florida municipal corporation, whose
mailing address is 175 West Warren Avenue, Longwood, Florida 32750,
the CITY OF LAKE MARY, a Florida municipal corporation, whose mailing
address is 100 North Country Club Road, Lake Mary, Florida 32746, the
CITY OF ORANGE CITY, a Florida municipal corporation, whose mailing
address is 229 E. Graves Avenue, Orange City, Florida 32763, the CITY
OF OVIEDO, a Florida municipal corporation, whose mailing address is
Post Office Box 159, Oviedo, Florida 32765, the CITY OF SANFORD, a
Florida municipal corporation, whose mailing address is Post Office
Box 1778, Sanford, Florida 32772-1778, COUNTY of VOLUSIA, a political
subdivision of the State of Florida, whose mailing address is Thomas
C. Kelly Administrative Center, 123 West Indiana Avenue, Deland,
Florida, 32720 and the CITY OF WINTER PARR, a Florida municipal
Yankee Lake Regional Water Potable Water Supply Agreement
Page 3 of 73
corporation, whose mailing address is 401 Park Avenue South, Winter
Park, Florida 32789-4386, each of which shall be a purchaser of
wholesale potable water from SEMINOLE and hereinafter collectively
referred to as "Participants".
W I T N E S S E T H:
WHEREAS, the parties to this YLRWSA are all local government
potable water suppliers for their respective geographic jurisdictions
or water service areas; and
WHEREAS, the St. Johns River Water Management District ("SJRWMD")
has notified the parties that no new permits for groundwater
withdrawals will be granted after year 2013, and that the parties
instead must develop alternative water supplies to meet future water
needs; and
WHEREAS, commencing in 2000, the St. Johns River Water Management
District, with funding assistance from both SEMINOLE and the County of
Volusia, undertook to study and investigate the St. Johns River as a
potential alternative water supply for Seminole. County; and
WHEREAS, those studies have demonstrated that the St. Johns River
is a viable alternative water supply source, not only for Seminole,
but for the Participants as well; and
WHEREAS, the production of potable water from the St. Johns River
will require an advanced reverse osmosis process that is significantly
more expensive than the process typically used to produce potable
water from groundwater. However, the parties recognize that the
development of any source of alternative water supply will be more
expensive than groundwater; and
Yankee Lake Regional Water Potable Water Supply Agreement
Page 9 of 73
WHEREAS, SEMINOLE has previously acquired a site adjacent to the
St. Johns River, known as the "Yankee Lake site," which has the area
and location suitable for the construction of a regional water
treatment facility; and
WHEREAS, SEMINOLE has undertaken the study, conceptual design,
and initial permitting for the construction of a reverse osmosis water
treatment facility for potable water supply at the Yankee Lake site,
herein referred to as the Yankee Lake Regional Water Treatment
Facility, or "Facility."
WHEREAS, SEMINOLE has demonstrated the ability to design,
construct, manage, operate and maintain water supply facilities in the
locations, and at the times necessary, to ensure that a specified
water supply for potable needs will be available to all Participants
in this YLRWSA. [cf. s. 373.1962(1)(d), F.S.]; and
WHEREAS, SEMINOLE has implemented an infrastructure delivery
Program including a Program Management and Design Consultant Team for
immediate commencement of implementation for expedited delivery of the
Project; and
WHEREAS, SEMINOLE has offered to Participants, to design, permit,
and construct the potable water Facility larger than SEMINOLE's needs,
in order that SEMINOLE and the PARTICIPANTS may obtain the operational
efficiencies and economies of scale to be derived from a single larger
facility, as contemplated by s. 373.196(1)(e), F.S.. These
efficiencies include the avoidance of duplication of facilities,
personnel and overhead costs, and consultant and legal fees related to
the development of a new alternative water supply; and
Yankee Lake Regional Water Potable Water Supply Agreement
Page 5 of 73
WHEREAS, the Participants, recognizing the benefits of
subscribing for capacity in such a larger facility, have elected to
participate in this YLRWSA in accordance with the terms and conditions
set forth below; and
WHEREAS, SEMINOLE will design and construct the Facility in
Phases, with sufficient capacity to accommodate the aggregate water
subscriptions and timing demands of the parties. SEMINOLE will award
its initial construction contract for such larger facility in reliance
upon the Capacity Reservation Schedules attached to and incorporated
in this Agreement; and
WHEREAS, participation in this YLRWSA will assist Participants in
meeting their respective projected needs for alternative water
supplies. The Participants have requested MGD in aggregate
demand of water system capacity to provide for their projected needs
through 2039.
WHEREAS, this YLRWSA contains the conditions under which the
Facility will be developed to provide for the long-term alternative
supply of potable water for Participants and SEMINOLE. As it becomes
available, SEMINOLE will provide water system capacity to Participants
for use subject to terms and conditions hereof.
WHEREAS, Participants' execution of a Capacity Reservation
Schedule and payment of corresponding Project Development Charge will
allow each Participant to secure a finite quantity of water treatment
capacity in the Facility and capacity in the Primary Transmission
System under the terms of this YLRWSA.
Yankee Lake Regional Water Potable Water Supply Agreement
Page 6 of 73
WHEREAS, execution of this YLRWSA by May 15, 2009 serves the
public interest and furthers the mutual interests of parties by: (a)
affording participation in the one alternative water supply project
which is most likely to be in construction or operational within
SJRWMD groundwater limitation dates; (b) providing a cost-effective
solution to Participants' alternative water supply needs; (c)
affording the parties the opportunity to meet an application window
for additional water supply development grant funding that may further
reduce the cost of the Project to all parties; (d) enabling the
parties to take advantage of current advantageous construction costs.
WHEREAS, the Facility is planned to meet all, or a portion of the
Participants' requirements for alternative water supplies, and to
support environmentally sustainable economic development in the
Central Florida region; and
WHEREAS, the parties are authorized to enter this YLRWSA by one
or more of the following: Sections 125.01(1)(k)1., 125.01(1)(p),
125.01(1)(u), 163.01, 166.021, Ch. 153, and Ch. 373, Florida Statutes,
and provisions of the several parties charters.
NOW, THEREFORE, in consideration of the foregoing premises and
the mutual covenants and agreements hereafter set forth, SEMINOLE and
the Participants intending to be legally bound hereby agree as
follows:
Section 1. Preamble. The foregoing statements are true and
correct and form a material part of this YLRWSA, and upon which the
parties have relied.
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Section 2. Structure of Agreement. The structure of this YLRWSA
includes the terms and conditions, and Exhibits applicable to all
parties, and attached Capacity Reservation Schedules specific to each
Participant. A Participant's Capacity Reservation Schedule will
commit the Participant to Take or Pay for the quantity of water
specified therein, and specify its respective project development
charge, the payment of which will secure to that Participant the right
to a specified amount of water production capacity ("capacity right")
in the Facility. This capacity right will exist for the duration of
this Agreement and any extensions hereto. The capacity right does not
represent or convey an ownership interest in the physical plant of the
Facility or System.
SEMINOLE will also seek to augment the funding of the new
Facility by making application for alternative water supply grant
funds and other state and federal grants that may become available
from time to time.
The financial integrity of the new Facility and Primary Water
Transmission System will be maintained by the creation of a new
enterprise fund, the "Yankee Lake Enterprise Fund," which will be
separate not only from Seminole general funds, but also from
SEMINOLE's existing Water and Sewer Enterprise Fund, which itself will
be a Purchaser of wholesale water from this new System. The Yankee
Lake Enterprise Fund will account for only wholesale water sales under
this Agreement. All Seminole retail water sales, and expenses related
thereto, shall be accounted for separately under Seminole's Water and
Sewer enterprise fund.
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Primary Water Transmission System. This YLRWSA applies to both
the Yankee Lake Regional Water Treatment Facility and the Primary
Water Transmission System. The Primary Water Transmission System will
convey wholesale potable water supplies to Primary Points of Delivery
for the Participants. The Primary Points of Delivery are anticipated
to be a river crossing. for the Volusia County Participants, and
eastern, southern and western Points of Delivery up to the Seminole
County boundaries. The cost of the trunk water transmission mains
(Primary Water Transmission System) to the Primary Points of Delivery
will be prorated according to the Participants' demands and will be
designed and developed in reliance on the Participants' Capacity
Reservation Schedules. Anticipated Points of Delivery for the Primary
Water Transmission System are shown in Exhibit XX.
The Primary Points of Delivery will be the extent of SEMINOLE
responsibility in the delivery of Yankee Lake water supply to
Participants. It will be the responsibility of Participants to take
this water from the Points of Delivery and blend in their respective
systems.
Participants' Financial Commitment and Liability Not Contingent
On Participants' Transmission Systems. In consideration of SEMINOLE's
reliance on Participants' Capacity Reservation Schedules and its
commitments under the Obligations, Participant's obligation to timely
pay their respective Take or Pay charges shall be independent of, and
not contingent upon the development of Participants' transmission
systems.
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Section 3. Term of Agreement. This YLRWSA shall become effective
as stated in Section 50, and shall run through 2039, and
shall automatically be renewed thereafter for successive periods not
to exceed
provided herein.
(_) years each, unless earlier terminated as
Section 4. Goals to be Achieved by Agreement. This YLRWSA is
intended to achieve for the parties the following important goals:
(a) SEMINOLE will use its best efforts to have the Yankee Lake
Water Treatment System operational by a date that will enable
Participants to meet SJRWMD requirements for development of
alternative water supplies.
(b) SEMINOLE will develop the System to provide to the
Participants a reliable supply of water meeting potable water quality
regulations at a fair price. This goal is supported by the following
principles:
(1) Equal treatment in delivery of water by SEMINOLE to
Participants inside and outside of Seminole County, both in the normal
administration of this YLRWSA, and in the event of a major system
disruption;
(2) Firm individual subscriptions for each Participant,
with flexibility to transfer water entitlements, and water, among
Participants;
(3) The Facility will deliver potable water with free
chlorine residual disinfection to Primary Points of Delivery;
(4) Participants' price of water shall, to the maximum
extent practicable, avoid subsidization of SEMINOLE or other
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Participants, and reflect fair apportionment of the cost of capital
facilities and expenses related thereto that actually benefit each
respective Participant;
(5) The cost of the Facility shall be allocated between
Participants based on subscriptions and relative usage;
(6) Flexible rate administration shall avoid sharp
fluctuations from year to year.
(i) SEMINOLE will manage and operate the System as
efficiently as practicable for the benefit of, and without unjustified
discrimination against, or among, Participants. Participants will
have a voice in such management and operation through the Water
Managers Advisory Board (Sec. 6(b)).
(ii) This YLRWSA aims to increase the availability of
sufficient water for all existing and future reasonable-beneficial
uses. S. 373.016(3)(d), and s. 373.0831(2)(a), F.S.
(iii) This YLRWSA is consistent with the statutory goal
that direct beneficiaries of water supply development projects should
pay the costs of the projects from which they benefit. S.
373.0831(2)(c), F.S.
(iv) This YLRWSA is intended to be consistent with the
SJRWMD regional water supply plan so as to receive priority
consideration for state or water management district funding
assistance.
(v) The provisions of this YLRWSA are intended to be
consistent with each Participant's comprehensive plan.
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(vi) The parties will support efforts to have the
SJRWMD identify the St. Johns River as a "preferred water supply
source" pursuant to 5. 373.2234, F.S.
In furtherance of the foregoing goals, the purpose of this YLRWSA
is to set forth the terms and conditions under which SEMINOLE shall
finance, develop, operate, maintain and manage the System for the
production and delivery of wholesale potable water supplies for
Participants to take at the Primary Points of Delivery.
Section 5. Definitions. The following terms shall have the
meanings stated herein for purposes of this YLRWSA.
(a) Base Load Demands. Those demands for the Take or Pay
quantities (specified amounts) that are intended to meet a base or
average demand for each Participant.
(b) Board. The Seminole County Board of County Commissioners
or "BCC."
(c) Capacity Right. A right to plant capacity in the Facility
for potable water supplies for the term of this YLRWSA and any
extensions hereto.
(d) Capacity Reservation Period. A period of time ending on
May 15, 2009, during which the Participants may execute a Capacity
Reservation Schedule.
(e) Capacity Reservation Schedule.
(f) Capital Costs. The Planning, permitting, design, legal,
construction and other associated costs required to place into
operation physical assets with expected service lives in excess of one
(1) year.
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(g) Conjunctive Use. The coordinated use of both ground and
surface water sources to provide reliable water supplies by meeting
base load AWS with surface water, combined with the use of groundwater
authorized in each Participant's permits to cover peak demands and any
periods when surface water is temporarily reduced below base load
levels or is otherwise unavailable, subject to approval by SJRWMD.
(h) Consumptive Use Permit (CUP). A permit for raw water
withdrawal from the St. Johns River issued by the St. Johns River
Water Management District.
(i) Contract Year. The period between execution of the YLRWSA
and September 30, 2009 shall be the first contract year; thereafter
the contract year shall be the fiscal year of SEMINOLE (beginning on
each October 1, and ending on the immediately following September 30)
for the term of this YLRWSA and any extensions hereto.
(j) Facility. The Yankee Lake Regional Water Treatment
Facility as described herein.
(k) Financing Documents. shall mean any resolution or
resolutions of SEMINOLE, as well as any indenture of trust, trust
agreement or similar document relating to the issuance or security of
Obligations.
(1) MGD. Millions of gallons per day.
(m) Notices. Communication to and among the parties pursuant
to Section 36 hereof.
(n) Obligations. shall mean any series of bonds or other
evidence of indebtedness, including, but not limited to, notes,
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commercial paper, capital leases, or any other obligations of Seminole
issued or incurred in relation to the Facility.
(o) Plant Capacity. The maximum amount of potable water that
the Facility is designed to treat and deliver over a designated
period, generally stated in terms of daily production (MGD).
(p) Potable Water. Water meeting all applicable Federal and
State regulations including, but not limited to, the Safe Drinking
Water Act, to ensure that water quality is safe for human consumption.
(q) Primary Points of Delivery. The interconnection between
the Primary Transmission System facilities and the Participants'
transmission facilities for the delivery of potable water. The
Primary Points of Delivery are anticipated to be a river crossing to
the Volusia Participants, and eastern, southern and western Points of
Delivery up to the Seminole County boundaries. (As depicted on
Exhibit
(r) Primary Transmission System. SEMINOLE's network of
transmission mains, pump stations and other physical assets including
Supervisory Control and Data Acquisition (SCADA) assets used to
transmit potable water from the Facility to the Primary Points of
Delivery of the Participants' designated points of transmitted water
acceptance. (See S. )
(s) Project Development Charge. A payment made by a
Participant to SEMINOLE, as specified in its Capacity Reservation
Schedule, payment of which will reserve a certain amount of gallons
per day of potable water plant capacity of the Facility, for said
Participant. The amount of the Project Development Charge will be
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based on the proportionate share of total reserved Facility plant
capacity represented by Participant's Take or Pay quantity. The
Project Development Charge will include two elements. The first
element will be the regional costs incurred to date by SEMINOLE and
the second element will be the anticipated development activities to
be conducted by SEMINOLE and the Participants.
The regional costs incurred to date by SEMINOLE include the
design and permitting of the regional intake, initial regional
Facility planning, regional Facility public outreach, and legal
services.
The anticipated project development activities to be conducted by
SEMINOLE and the Participants include transmission system master
planning, facility pre-design, facility permitting, CUP permitting,
NPDES permitting, transmission system pre-design, and transmission
system permitting.
(t) Rate. (See S. 11)
(u) Rate Stabilization Account. (See S. 11)
(v) Retail Water Sales. Potable water sales by a Participant
to retail users within its designated service area.
(w) Return on investment. (See S. 11)
(x) Safe Drinking water Act (SDWA). Federal legislation
delineating the water quality requirements for treatment and
transmission of potable and non-potable water for domestic uses.
(y) SJRWMD. St. Johns River Water Management District or
"District."
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(z) "Take or Pay". An unconditional payment commitment
(subject to exceptions provided herein) providing that the
Participant(s) shall be charged for their respective Take or Pay
quantity irrespective of whether the Participant(s) actually demand or
utilize the reserved amount of water. Stated otherwise, the minimum
payment that each Participant agrees to make to SEMINOLE each year,
shall equal to the water rate for that year times the Participant's
"Take or Pay quantity of water." This provision effectively provides
that a minimum water demand level must be established for each
Participant. (See S. 10)
(aa) Transmission System Points of Water Acceptance. The
interconnection between the Primary Transmission System facilities and
the Participants' transmission facilities for provision of potable
water.
(bb} Water Managers Advisory Board (WMAB). The. advisory board
of Participants established in Section 6(b) of this Agreement.
(cc) Water Rate. The charge per unit of volume for the greater
of the contracted Take or Pay minimum water demands or the water
actually delivered to the Primary Points of Delivery and charges for
recovery of Capital Costs. The Water Rate is established by SEMINOLE
for a contract year and shall recover, at a minimum, the budgeted
Operating Costs based on the Participants' contracted Take or Pay
quantity unless specifically adjusted by the Participants and approved
by Seminole. (See Sec. 11)
(dd) Yankee Lake Regional Water Treatment Facility (Facility).
The real property, raw water intake/pumping station, water treatment
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plant, finished water pumping station, and other related appurtenances
located at the Facility site in Seminole County, Florida. The planned
configuration of the Facility is depicted in Exhibit "B", attached
hereto and incorporated herein. In the event of any future
modifications, additions or deletions to the Facility, including the
implementation of a future plant expansion, SEMINOLE will prepare and
attach to this Agreement a revised Exhibit "B".
(ee) Yankee Lake Water System (System). The Yankee Lake Water
System is comprised of the Yankee Lake Regional Water Treatment
Facility and the Primary Transmission System. The System includes all
improvements, enlargements, extensions and additions which, pursuant
to this YLRWSA, are deemed necessary and feasible by SEMINOLE to
provide a potable water supply as contracted herein to Purchasers; and
all future new facilities and /or consumptive use permits related to
the Facility; and any water supply facilities which are deliberately
and specifically, at the option of SEMINOLE, made a part of the System
by the Board, and all repairs to or replacements of the System.
System does not include. any SEMINOLE facilities which provide retail
water distribution to SEMINOLE customers.
Section 6. Roles and Responsibilities of Parties. SEMINOLE, as
the owner and operator of the System and lead agency, has taken the
lead in the development and permitting of the Project, and shall have
final authority and responsibility with respect to the planning,
design, permitting, financing, contracting, constructing, management,
operation and maintenance of the System, as well as policy-making
(including rate-setting related to the System. SEMINOLE shall
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exercise the foregoing responsibilities for the benefit of all parties
in accordance with the terms of this Agreement and, notwithstanding
the foregoing, the structure of this Agreement shall afford
Participants meaningful involvement into significant decisions related
to the Facility. Participants shall exercise that involvement through
the Water Managers' Advisory Board as described herein.
Ownership of Infrastructure. SEMINOLE shall be and remain the
sole owner of all infrastructure and permits relating to the operation
of the System. A Participant's payment of Project Development
Charges, water rates including Take or Pay charges, or other fees or
charges for water supply under this YLRWSA shall not in any way extend
or convey any ownership interest in, or right to physically control
any portion of the System, except as otherwise provided. in Section 17
of this YLRWSA.
Yankee Lake Enterprise Fund. SEMINOLE shall establish a separate
Yankee Lake Enterprise Fund (Enterprise Fund) to manage and account
for funds, revenues and expenses associated with development and
operation of the System. The System will be financed separate and
apart from SEMINOLE's Water and Sewer Utility System. Revenues from
SEMINOLE's Water and Sewer Utility System Enterprise Fund are not
pledged to support the Yankee Lake Enterprise Fund, nor are SEMINOLE's
general fund revenues so pledged. The Yankee Lake Enterprise Fund
will be supported entirely from revenues of the System. All interest
earnings on balances of the Yankee Lake Enterprise Fund will accrue to
the fund; only transfers as delineated in Section 11 (Return on
Investment) and reimbursement of audited advances from the SEMINOLE
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Water and Sewer Enterprise Fund are permitted from the Yankee Lake
Enterprise Fund. The Yankee Lake Enterprise Fund will be subject to
annual financial audit.
(a) Management of Development and Operation of the System.
SEMINOLE's County Manager, or the County Manager's designee
(hereinafter, "the Manager") shall have executive authority to manage
the planning, design, permitting, construction, and operation of the
System. The Manager shall be responsible for implementing policies of
the Seminole County Board of County Commissioners and the directives
of the County Manager. The Manager shall also act as an interface
with the Water Managers Advisory Board provided for herein, with a
goal to achieving maximum cooperation and attainment of the mutual
goals of all parties hereto, by managing the System in a way that
benefits all parties hereto.
(b) Water Managers Advisory Board. A Water Managers Advisory
Board (WMAB) is hereby established, and shall be comprised of a
representative from each Participant and from SEMINOLE. The governing
body of each party hereto shall appoint a representative and alternate
representative. The Seminole County Environmental Services Department
will provide staff support to the WMAB and will be responsible for
keeping its minutes and official records.
A majority of the members of the WMAB constitute a quorum for the
transaction of business. Each member shall have 1 vote for each
MGD, or major portion thereof, of capacity reserved in the Facility.
However, each member shall have at least 1 vote. Adoption of a
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resolution or other action taken by the WMAB requires a majority of
the votes that members of the WMAB are authorized to cast.
The first meeting shall be held not less than days after the
effective date of the YLRWSA. The Manager shall call the first
meeting. At the first meeting, the WMAB shall elect a chairperson and
a vice-chairperson, and such other officers as the WMAB deems
necessary. The WMAB shall keep a written record of each meeting of
the WMAB.
The WMAB shall act in the role of representative of the
collective interests all wholesale Purchasers of the System
(Participants and SEMINOLE). It shall act in an advisory capacity
with respect to major policy, management and operations issues and
decisions that affect the substantial interests of the parties. The
intent of this Agreement is that SEMINOLE shall make important
decisions affecting the parties in a transparent manner, following
disclosure and explanation to, and a reasonable period of time to
receive comment, objections or recommendations from, the WMAB. As an
advisory board, no rule, bylaw, or action of the WMAB may alter the
force or effect of any term of this YLRWSA, except as expressly stated
otherwise herein.
Matters Affecting Substantial Interests. The following
enumeration lists matters that are deemed to affect the substantial
interests of the parties. SEMINOLE agrees to make its best effort to
report to the WMAB the pendency of issues that involve these matters,
and to afford to the WMAB reasonable opportunity for meaningful review
and comment, prior to SEMINOLE action thereon. This requirement is
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subject to an exception for emergency circumstances as described
below:
(a) Addition of new Participants, after Initial Subscription
period.
(b) Annual Budget.
(c) Capital Improvement Plan, including prioritization or
ranking of capital improvements.
(d) Conservation Plan.
(e) Methodology as to Project Development Charges and as to
Take or Pay Charges.
(f) Policies and Procedures related to the System.
(g) Rates, Fees and Charges.
(h) Application for Additional or Expanded CUP for Facility.
(i) Audit review of Yankee Lake Enterprise Fund.
(j) Consideration of Alternative Treatment Technologies.
(k) Drought and Water Shortage Decisions.
(1) Financing Decisions.
(m) Levels of Service.
(n) Location of Points of Connection.
(o) Long-term planning.
(p) Plant design or expansion.
(q) Plant Shut-downs.
(r) Rates and Rate of Return.
(s) Rate Stabilization Account.
(t) Regional Water Supply issues.
(u) Security of System.
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(v) Water Quality Issues.
The Manager shall provide notification to the WMAB as soon as
reasonably practical with respect to the pendency of the foregoing
issues.
The intent of this YLRWSA is that the Manager shall routinely
report to the WMAB news of matters and events affecting any party's
obligations under this YLRWSA, and the general condition or operation
of the System, whether or not such news is considered to be a matter
affecting the substantial interests of the parties.
In the event of an emergency situation, defined as a situation
about which SEMINOLE, through the exercise of reasonable diligence,
was not able to provide the reasonable advance notification before
SEMINOLE was required to take action or make a decision for the best
interests of the System or parties hereto, SEMINOLE shall be excused
from compliance therewith. Notwithstanding that, SEMINOLE shall
provide Participants the most timely and effective notification
reasonably possible in such emergency circumstances.
(1) Meetings. The WMAB shall meet at least quarterly, and
if called by the Manager, as needed, to discuss matters affecting the
substantial interests of the parties and to make comments, objections
and recommendations with respect to such issues after receiving
reports from Seminole. The WMAB may adopt such Bylaws concerning its
organization and governance as a majority of the membership shall see
fit.
(2) Committees. The WMAB may establish standing or ad hoc
committees as needed to address ongoing issues, which may include:
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(i) Addition of Participants
(ii) Audit Review
(iii) Best Management Practices
(iiii) Facility Expansion
(iv) Operation and Management Oversight
(v) Policy Review
(vi) Project Review
(vii) Rate Review and Recommendations
(viii) Water Resource Conservation
(ix) Water Shortage Response
(3) Recommendation of Standard Operating Practices.
The WMAB may recommend to the Manager standard water system operating
practices necessary or advisable to enhance the efficiency,
reliability, and cost-effectiveness of the production of water
provided under this YLRWSA. These standard operating practices may
address issues such as, but not necessarily limited to, managing the
Facility to minimize the impact of peak demand periods,(i.e.,
conjunctive use), security and emergency management, and timing of
deliveries of water. Pending receipt of recommendations from the
WMAB, the Manager shall adopt interim operating practices and upon
receipt of the recommendations, the Manager shall adopt the
recommendations, with such alterations as he or she deems necessary
and advisable. Each Participant agrees to operate its system in a
manner consistent with such established operating practices and in
keeping with responsible use of the Yankee Lake Water Supply System.
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Section 7. Nature of Project. As described herein, this YLRWSA
involves development of a new alternative water supply project ("the
Yankee Lake Water System Project" or "Project"), i.e., construction of
the Yankee Lake Regional Water System, for the provision of a
wholesale supply of potable water to the Purchasers by SEMINOLE, which
is acting as the lead agency for this Project, consistent with s.
373.0831(2)(c),F.S. SEMINOLE will be the owner and operator of the
System. The Project will be funded by revenue bonds which will be
secured by Take or Pay obligations of the Participants, Project
Development Charges and other revenues that may be obtained for the
Project.
The Project will be permitted and constructed in Phases, with
certain System components constructed in Phase I of a size and
capacity sufficient to produce the volumes of water contemplated at
build-out of the entire Project.
Generally, the Phases of the Project are as follows:
Phase Plant Capacity Projected Year of Availability
A (Reg.Intake Only) 5.5 N/A
1 40.0 2013
2 50.0 2015
3 60.0 2019
4 75.0 2024
5 85.0 2030
NOTE: The foregoing phase information will be up-dated after
completion of the first financial pro forma which uses the up-dated
capacity and demand reservation schedules.
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Identification and Phasing - Yankee Lake Water System Project
Elements. The Yankee Lake Water Water System Project includes several
major elements. Each element will have a specific design and
construction schedule intended to result in a complementary completion
schedule of groups of elements, which will yield incremental increases
in water capacity. A basic summary outline of these elements, their
construction schedules and the anticipated water supply capacity
associated with the completion of the elements is provided Exhibit xX.
Completion of the construction of all Project elements
identified above are needed to provide MGD (_ MGD average daily)
capacity to the Participants.
The Project milestone dates shown herein represent the current
estimate of when various elements of the project may be completed.
There-are numerous issues that could affect the completion of any or
all of these Project elements, including but not limited to federal,
state and local permitting, approvals, and special permits required
and construction delays. Although the schedule allocates time to
satisfy these issues, it is always possible that unanticipated delays
will occur on a project of this scope and complexity.
Section 8. Project Development and Financing. SEMINOLE, in
response to SJRWMD guidance on future groundwater limits, has
heretofore expended significant sums in the development of the Project
as an alternative water facility. In reliance on Capacity Reservation
Schedules of Participants, SEMINOLE will proceed- with the design,
permitting, and construction of the System of a size and capacity
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sufficient to meet the aggregate Take or Pay quantities of the
Participants specified in such Schedules.
(a) Capacity Reservation. Participation in the System is
obtained by execution of both this YLRWSA and a Capacity Reservation
Schedule. The Capacity Reservation Schedule will state each
Participant's Take or Pay Quantity and Commitment to pay applicable
rates for at least that quantity of potable water. Participant shall
obtain a capacity right in the Facility upon payment of a calculated
Project Development Charge specific to that Participant. Initial
sizing of the intake structure and the plant will be .based on Capacity
Reservations made during the initial Capacity Reservation Period,
ending May 15, 2009. Potential Participants who elect not to join in
this Agreement and execute a Capacity Reservation Schedule during the
initial Capacity Reservation Period run the risk that surplus plant
capacity may not be available at a later date, or, if plant capacity
is available, will be subject to increased charges to become a
Participant in the future. This provision provides a preference to
those Participants who make a commitment to the Project during the
initial Capacity Reservation Period, by enabling SEMINOLE to maintain
its Project development goals and affording subscribing Participants
the maximum economies of scale possible. If, in the future, an entity
seeks to become a Participant, if all current Facility capacity has
been allocated, SEMINOLE will not accept new Capacity Reservation
Agreements until such time as additional plant capacity is made
available. Future Capacity Reservation Periods for the addition of
new Participants will be determined by SEMINOLE and scheduled only if
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they can be accomplished in a way that is not detrimental to the
initial Participants of the System.
(b) Project Development Charge. In order for a Participant to
secure a reservation of capacity in the Facility, it must pay its
respective Project Development Charge to the Yankee Lake Enterprise
Fund by October 1, 2009. The Project Development Charge a non-
refundable charge to accomplish the following purposes: (1) It
represents each Participant's "buy-in" to the Project and is partial
consideration for each Participant's reservation of capacity in the
Facility; (2) It partially off-sets and recovers SEMINOLE'S project
development costs to date, including project financing costs, legal
expenses, project development planning, permitting, facilitation and
design of initial raw water intake sizing (commensurate with
Participants Capacity Reservation Schedules); (3) It partially
mitigates and apportions among all Participants past and future
project development risk; and (4) it serves to reduce the Project debt
and ultimate rates for System water. Each Participant's specific
Project Development Charge will be based on the same proportion that
Participant's Take or Pay quantity (as specified in the Capacity
Reservation Schedule) represents to the aggregate of all Take or Pay
quantities in the Facility.
(c) Individual Participant Demand Level. The Capacity
Reservation Schedules shall require prospective Participants to
identify an annual schedule of planned base-load demands. Payment of
the Project Development Charge entitles the Participant to exercise
its claim on the Facility capacity in the amount stated in its
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executed Capacity Reservation Schedule. The Participants' are not
required to use Facility capacity upon completion of the initial
Facility construction but must reserve capacity to assure its
availability in the future.
Upon issuance of the CUP, the annual schedule of planned base-
load demands will be revised accordingly.
(d) Water Rates. Participants, through execution of this
YLRWSA and Capacity Reservation Schedule, agree to pay Water Rates to
the Yankee Lake Enterprise Fund for the greater of water actually
delivered to the Primary Points of Delivery or minimum demand Take or
Pay quantity as identified in the Participants' Capacity Reservation
Schedules. The Water Rate shall be developed in accordance with Sec.
11 of this Agreement.
Section 9. Certification of Available Capacity. As elements of
the Yankee. Lake Water Supply infrastructure are constructed and deemed
operational by SEMINOLE, resulting in the availability of capacity,
SEMINOLE shall notify the Participants, in writing, of the volume of
water available to Participant for allocation by each Participant.
The capacity certified by SEMINOLE as available for use by d
Participant under this YLRWSA is defined as the maximum volume of
water that SEMINOLE will provide to the Participant in any 29-hour
period, for use within Participant's municipal boundaries or service
area, expressed in millions of gallons per day (MGD) and is intended
to meet the base load of Participant. The amounts certified as
available for use by Participant will increase incrementally as phases
of the System infrastructure improvements and expansions are
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constructed and deemed operational, subject however to all permit
conditions.
Participant may deliver water provided to it under this YLRWSA
only to properties within its municipal boundaries or service area.
Section 10. "Take or Pay" Water Quantities
(a) General Take or Pay Obligations. Unless excused by some
other provision of this YLRWSA, Participant agrees to pay SEMINOLE
each year a sum of money (its "Take or Pay" purchase payment)at least
equal to the water rate for that year times the Participant's Take or
Pay quantity of water. Payments shall be made as provided in Section
15, Billing and Payment.
(b) Changes in, and Transfers of, Take or Pay Quantities.
(1) Reductions in Take or Pay Quantities. Participant's
Take or Pay quantity may not be reduced during the term of this YLRWSA
except by amendment.
(2) Increases in Take or Pay Quantities. On any [date]
during the term of this YLRWSA, Participant may request that its take
or pay quantity be increased. The Manager may accept or reject such
request, in whole or in part. The Manager shall respond to any
request for an increase in take or pay quantity by [date] of the same
year the request is made. Unless otherwise agreed by Participant and
SEMINOLE, any increases in Take or Pay quantity agreed to under this
provision shall be effective for the remaining term of the YLRWSA.
If on [date], more than one Participant under this YLRWSA
requests an increase in Take or Pay quantity and the Manager
determines that he or she can prudently approve some increase in Take
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or Pay quantity but cannot approve all pending requests in total, then
the Manager may grant such overall increase in Take or Pay quantity as
he or she deems prudent, provided that when granting partial approvals
of more than one request, the Manager shall grant such approvals in
proportion to the then-existing Take or Pay quantity of each
requesting Participant compared to the total of the then-existing Take
or Pay quantities of all requesting Participants. If the Manager
cannot grant Participant's original request in total, the Participant
may elect to withdraw its requested increase in Take or Pay quantity.
All increases in Take or Pay quantities shall be confirmed in writing
and signed by both (all) parties.
(3) Transfers of Take or Pay Quantities. With the
approval of the Manager, which shall not be unreasonably withheld,
Participant may alter its Take or Pay quantity (and payment
obligation) by transferring all or some of its Take or Pay quantity to
another Participant. Withholding approval shall be deemed reasonable
in the following circumstances only: the Manager determines that the
transfer would require changes in the infrastructure of the Facility
or reduce the reliability of the Facility. In these two
circumstances, nonetheless, the Manager shall endeavor to approve
transfers with such conditions as he or she deems necessary or
advisable to avoid the need to make changes in the Facility
infrastructure or reduction in the reliability of the Facility. Any
approved transfer must be done in coordination with permitting
requirements of the District.
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(4) Sale of Take or Pay Water. Participant may sell water
purchased from SEMINOLE as part of its Take or Pay quantity to other
water suppliers, upon approval of the Manager, which will not be
unreasonably withheld. Withholding approval shall be deemed
reasonable in the following circumstances only: the Manager
determines that the sale would require changes in the infrastructure
of the Yankee Lake Facility or reduce the reliability of the Facility.
In these two circumstances, nonetheless, the Manager shall endeavor to
approve sales with such conditions as he or she deems necessary or
advisable to avoid the need to make changes in the Yankee Lake
Facility infrastructure or reduction in the reliability of the
Facility. Any approved sale must be done in coordination with
permitting requirements of the District.
(c) Excess Demands
(1) Reduction in Supply. Should Participant place demands
on the Facility in excess of that agreed to between SEMINOLE and
Participant or not in compliance with the Operating Standards adopted
pursuant to Section 6(b), WMAB, that jeopardizes the reliability or
safety of the Facility or compromises SEMINOLE's ability to meet its
obligations to other Participants, the Manager may take such steps as
are necessary or advisable to protect the Facility and the CUP. Such
actions may include, but are not limited to reducing the supply of
water flowing to the Participant. If the Facility infrastructure does
not allow the Manager to make such supply reductions, the Manager may
construct control devices as may be needed to suitably control
Participant's demands. The cost of such improvements shall be fully
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recovered through a surcharge billed to Participant and added in equal
installments to the Participant's monthly invoices during the four
months following completion of construction.
(2) Calculation of Excess Demands. For purposes of section
the Manager shall determine whether the Participant has imposed
excess demands on the System using any information available to the
Manager that. he or she determines can be used to assist in making the
determination. The Manager's determination shall be subject to review
and comment by the WMAB.
(e) Increased Facility Capacity to Meet Increased Take or Pay
Quantities.
(1) If Participant requests an increase in its Take or Pay
quantity pursuant to Section that, in the judgment of the
Manager, cannot prudently be granted because it exceeds the capacity
of the Facility to deliver water to Participants, the Participant may
request that SEMINOLE undertake a study to determine what, if any,
enhancements or alterations to the Facility, would produce sufficient
system capacity to meet the requested increased Take or Pay quantity.
(2) Upon Participant's written agreement to fund such a
study of Facility enhancements or alterations, SEMINOLE shall
undertake. the study. Provided that SEMINOLE's obligation shall be
contingent on negotiation of a mutually satisfactory agreement between
SEMINOLE and Participant establishing the nature, timing, and funding
of the study.
(3) Upon completion of any Facility study provided for in
this Subsection, the Participant funding the study may request
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SEMINOLE to undertake Facility enhancements or alterations sufficient
to meet the Participant's requested increased Take or Pay quantity.
(4) Upon request for Facility enhancements or alterations,
SEMINOLE may agree to undertake the enhancements or alterations
requested, under such terms and conditions as SEMINOLE and Participant
in writing mutually agree. The parties may utilize joint funding
agreements, as provided for under Section 17 of this Agreement, or
such other arrangements as are determined to be mutually beneficial at
the time.
Section 11. Seminole/Yankee Lake Water Rates.
(a) Rate Methodology. The price of water purchased by
Participants, and the cost of providing water service to Participants,
shall be determined annually by SEMINOLE in accordance with its then-
current rate methodology, policies, rules and procedures. SEMINOLE
may choose periodically to change methodologies and change the
implementation of any methodology it selects, and to adopt, amend, or
abandon its policies, rules and regulations.
(b) Annual Reports and Budget. Participants shall supply
SEMINOLE in each year with an annual report which shall set forth such
Participants projected water demand for the next succeeding fiscal
year. SEMINOLE shall submit to the Participants its proposed budget
for the next fiscal year, as well as the proposed rate for water to be
provided by the System to the Participants. The rate in effect for
each fiscal (contract) year shall be sufficient to pay all costs
associated with the System as provided in the budget for the upcoming
fiscal year. Participants agree to pay SEMINOLE as compensation for
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water service a monthly charge based on the rate approved by Seminole
as applied against total volume of water delivered to such
Participants by SEMINOLE.
(c) Adjustment to Rates. SEMINOLE may prepare and approve
adjustments to the water rate in effect based upon SEMINOLE's budget.
Any new rate adjustment provided as a part of SEMINOLE's budget
process shall become effective no earlier than the next succeeding
October 1. SEMINOLE may also prepare and approve an adjustment to the
rate at any other time ar times as shall be required by the Financing
Documents.
(d) Rates. The rate to be charged in a contract year to the
Participants for water service may include the following components:
(1) Operation, Maintenance and Administrative Costs.
Operation, maintenance and administrative costs shall be based on the
cost of water service of the System identified therefor in SEMINOLE'S
budget for such contract year.
(2) Debt Service Charges. Debt service charges relating
to Obligations shall be based upon the principal of, redemption
premium, if any, and interest coming due on the Obligations in such
contract year.
(3) Renewal and Replacement Charges. Renewal and
replacement charges shall be based on an engineering estimate by
SEMINOLE's consulting engineer of amounts to be deposited into the
renewal and replacement fund or account at a level sufficient to
satisfy in such contract year all requirements of covenants given. or
undertaken by SEMINOLE in the Financing Documents.
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(4) Bond Coverage Costs. Bond coverage costs shall be
based upon coverage requirements established by the Financing
Documents.
(5) Capital Improvement Charges. Capital improvement
charges shall be based upon the amount identified therefor in
SEMINOLE's budget for such contract year.
(6) Operating Reserve Funds. Operating reserve funds
shall be based upon the amount identified therefor in SEMINOLE's
budget for such contract year.
(7) Return on Investment Charges. Return on Investment
Charges shall be based on a percentage of gross revenues of the System
received in the preceding contract year.
The above-described components shall be identified in the
proposed budget or other documentation provided to the Participants.
SEMINOLE may establish a Rate Stabilization Account. The Rate
Stabilization Account would be an account within the Yankee Lake
Enterprise Fund, (including any subaccounts that the Yankee Lake
Enterprise Fund determines to establish therein) for the purpose of
providing, and in amounts reasonably necessary to provide, sufficient
funds for the purpose of maintaining, to the extent practicable, Water
Rates at constant levels for such periods as SEMINOLE may determine
from time to time. Consistent with the foregoing, moneys in the Rate
Stabilization Account may be used (i) for the payment of Finance Costs
on Yankee Lake Debt to the extent that Water Rates and Other Yankee
Lake Revenues are insufficient for such purpose, (ii) for such other
purposes related to Yankee Lake Debt as SEMINOLE determines
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appropriate, and (iii) for acquisition, construction or replacement of
Capital Facilities of the System. The total of the amounts held in
the Rate Stabilization Account shall not exceed, during any fiscal
year, 5000 of the Average Aggregate Debt Service, calculated as of the
first day of such fiscal year (or, if the interest on Yankee Lake Debt
cannot be determined as of such date, 500$ of the Average Aggregate
Debt Service estimated by SEMINOLE on a reasonable basis as of such
date).
(e) Procedure for Rate Adjustments. Prior to the adoption of
any proposed new or adjusted rate, SEMINOLE shall provide to the
Participants its proposed rate, with supporting data and calculations,
including the components described in subsection (C) above. Any
disagreements to the proposed rate shall be submitted for
determination in the manner and mode set forth in the YLRWSA.
(f) Rates Upon Expansion of Facility. As the Facility is
expanded in phases, it is the intention of SEMINOLE to establish a
rate structure for water provide to Participants from each phase of
Facility expansion. For example, operating expenses and debt service
on Obligations specific to an expansion phase shall be part of a rate
structure to be paid by Participants receiving water service as a
result of such phase.
(g) Take or Pay Amounts; Minimum Payments. Each Participant
shall agree under the Capacity Reservation Schedule to pay in each
fiscal year a minimum amount equal to the applicable rate times its
Take or Pay quantity specified in its Capacity Reservation Schedule.
To the extent a portion of such water allocation shall be transferred
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by a Participant to another Participant as provided in this YLRWSA,
such transferred allocation shall be paid by the Transferee
Participant; provided, however, if such Transferee Participant shall
default in any payment obligations relating to the assigned
allocation, the Transferor Participant shall be responsible for such
payment.
Section 12. Additional Representations, Warranties and Covenants
of SEMINOLE. SEMINOLE hereby represents, warrants and covenants to
the Participants as follows:
(a) Environmental Permits. SEMINOLE shall obtain, renew,
maintain and modify, if necessary, all environmental permits necessary
to provide water service from the System as described in the YLRWSA.
Seminole further agrees to comply with all environmental permit
conditions and applicable rules and regulations.
(b) Financing Water Supply System. SEMINOLE shall from time to
time issue such Obligations as it deems necessary to cover the costs
incurred in constructing, acquiring, operating, replacing and
expanding the System.
(c) Accounting. SEMINOLE shall maintain within the Yankee Lake
Enterprise Fund, accounts and records for all moneys received and
disbursed by it with respect to water service from the Facility. On
or before each March 1, SEMINOLE shall complete an audit of the
aforesaid accounts. Said audit shall be conducted by a certified
public accounting firm having experience in auditing public utility
systems.
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(d) Operation of System. SEMINOLE shall at all times operate
and maintain the System in accordance with the prudent utility
practices.
(e) Compliance with Laws. SEMINOLE shall comply with all laws,
rules and regulations applicable to the System.
(f) Equitable Treatment of Participants. SEMINOLE shall treat
all Participants equitably without preference for any one Participant
over another Participant.
(g) Rate. The rate charged by SEMINOLE to the Participants for
water service shall be reasonable.
Section 13. Additional Representations, Warranties and Covenants
of the PARTICIPANTS. The Participants hereby represent, warrant and
covenant to SEMINOLE as follows:
(a) Irrevocable Commitment to Pay. The Participants shall pay
their respective monthly bills for water service for every fiscal year
in the manner provided in this YLRW SA.
(b) Participants' Water Utility System Charges. The
Participants shall fix, revise, maintain and collect such fees, rates,
tariffs, rentals, or other charges for the use of products, services
and facilities of their respective water utility systems to the extent
necessary to fund the timely payment of their respective obligations
and liabilities under this YLRW SA. SEMINOLE acknowledges that each
Participant's obligation to pay any monies due under this YLRWSA does
not constitute general indebtedness. Neither SEMINOLE nor the holders
of any Obligations issued by SEMINOLE in order to finance the
development, expansion, alteration, improvement or replacement of the
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System shall have a right to require or compel any Participant to
exercise its ad valorem taxing power to pay its obligations and
liabilities under this YLRWSA or to compel payment from any source
other than as indicated herein.
(c) Participants' Water Utility System Operation and
Maintenance Account. The Participants shall maintain their respective
water utility system operation and maintenance accounts throughout the
term of this YLRWSA for the purpose of paying their obligations and
liabilities under this YLRWSA. At all times during the term of this
YLRWSA, the parties' obligations and liabilities under this YLRWSA
shall be considered an operating expense of their water utility
systems and shall be paid from their water utility systems operation
and maintenance accounts; provided, however, that such obligations and
liabilities of a Participant shall not be considered an operating
expense of its water utility system nor need it be paid from the
operation and maintenance account to the extent the Participant has
budgeted and appropriated other legally available moneys for such
purpose and is current on all its obligations arising under this
YLRWSA.
(d) Participant Payment Obligation. Except as otherwise
provided in Subsection (f) hereof, Participant shall not be liable
under this YLRWSA for the obligations of any other Participant. A
Participant shall be solely responsible and liable for performance of
its obligations under this YLRWSA. The obligation of a Participant
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to make payments under this YLRWSA is a severable obligation and not
a joint obligation with the other Participants.
(e) Cooperation on Permits Participants agree to promptly
cooperate with SEMINOLE in obtaining any and all permits necessary or
convenient for construction, expansion, alteration, replacement or
operation of the System. Participants hereby waive any and all
objections to SEMINOLE's permit applications relating to construction,
operation, replacement or expansion of the Facility and water supply
sources for the Facility, whether issued by a federal, state or
regional governmental agency.
(f) Cooperation on Issuance of SEMINOLE Obligations. Each
Participant shall cooperate with SEMINOLE in the issuance of
SEMINOLE's Obligations. In such connection, each Participant shall
comply with reasonable requests of SEMINOLE and will, upon request, do
as follows: (1) make available general and financial information
about itself; (2) consent to publication and distribution of financial
information; (3) certify that its general and financial information is
accurate, does not contain any untrue statements of a material fact
and does not omit a fact necessary to make the statements in the
information, in light of circumstances under which they are made, not
misleading; (4) make available certified copies of official
proceedings; (5) provide reasonable certifications to be used in
transcripts of closing documents; and (6) provide and pay for
reasonable requested opinions of counsel as to the validity of its
actions taken in respect to and the binding effect of the YLRWSA, and
pending litigation which could materially affect its performance
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hereunder. Each Participant shall provide SEMINOLE with reasonable
assurance that no actions taken by it shall adversely affect the
exclusion from gross income of interest on SEMINOLE's Obligations for
purposes of federal income taxation. Each Participant agrees to
assist SEMINOLE in any reasonable manner with respect to the issuance
of such Obligations, including but not limited to participation in,
and assistance with, any court proceeding seeking to validate the
Obligations pursuant to Chapter 75, Florida Statutes.
Section 14. Participant Financing. Each Participant shall have
the option to issue their own debt or pay with its available money
with respect to its capital contribution relating to the System and
improvements thereto. The entire payment for a Participant's
proportionate share shall be made to SEMINOLE within fourteen (14)
days of the SEMINOLE bond closing. SEMINOLE shall provide notice to
all Participants of the SEMINOLE bond closing date thirty (30) days
prior to the SEMINOLE bond closing. The base rate charge for a
Participant who issues its own debt or pays in advance for any such
capital contribution relating to the System or improvements thereto
shall be adjusted to remove that Participant's debt service costs
attributed to the Participant's water allocation from the Facility.
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Section 15. Billing and Payment.
(a) Take or Pay Payment
(1) Monthly Billing. SEMINOLE shall bill Participant its
fixed monthly service charge plus a portion of its annual guaranteed
purchase volumetric payment obligation each month. The monthly
volumetric charge shall be the product of the monthly usage estimates,
as determined in Sections or times that year's rate per
unit of water.
(2) Monthly Usage Estimates.
(i) No later than March 15 of each year, Participant
shall submit to SEMINOLE a projection of its demands for the next
year, by month, which demands must total to the Participant's Take or
Pay quantity and must be consistent with the Participant's base load
demand. It is recognized that these demand projections will be
estimates and actual demands may vary from projected demands but such
departures from estimates do not relieve the Participant from
obligations such as Take or Pay quantity.
(ii) If the Participant has not by March 15 of each
year submitted its projected demands for the next year or if a timely
submission is inconsistent with Participant's then-current contractual
Take or Pay quantity, the Manager shall consult with the Participant
to obtain .new or revised projected demands. If thereafter the
Participant does not submit projected demands that are consistent with
its then-current contractual Take or Pay quantity, the Manager may use
the previous year's demand projections or other projections that are
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consistent with Participant's contractual Take or Pay quantity, to
make rates and to operate the System.
(b) Billing for Water Purchases Above Take or Pay Quantity.
Within days of the end of each contract year (that is, by date),
SEMINOLE shall review Participant's meter records for the previous
contract year under this YLRWSA. If the Participant has taken water
above its Take or Pay quantity, Seminole shall bill Participant for
those water deliveries no later than date. Charges shall be
calculated as follows:
If the Participant has taken at least its annual Take or Pay
quantity over the full contract year, then water supplied to
Participant from to in excess of its estimated
monthly guaranteed purchase quantity for those same months shall be
charged the rate of times the quantity of excess water
taken.
(c) Payment Schedule. Bills are due upon receipt, and subject
to a collection fee if not paid on or before the thirtieth day
following the billing date. Collection fees shall be established by
year Resolution of the SEMINOLE BCC.
(d) Charges in Case of Meter Failure. Should any meter fail to
measure accurately the water passing through said meter, the charge
for water used during the time the meter is out of service shall be
based on SEMINOLE's estimates of the volume of water supplied based on
usage patterns and statistics for prior periods.
(e) Disputes. In case of disputes over billings for water,
Participants shall pay the undisputed amount when due and the disputed
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amount shall be resolved through Dispute Resolution. The Participant
shall pay interest at a rate equivalent to the rate earned on
SEMINOLE's internal investment pool managed by the Clerk to the
SEMINOLE Board of County Commissioners on any disputed amounts found
through dispute resolution or litigation to be due SEMINOLE.
Section 16. Metering Equipment. SEMINOLE shall own and maintain
appropriate metering devices to measure the water flowing from the
Yankee Lake Water System to the Participant's water system at the
Primary Points of Delivery. To the extent that more than one
Participant shall receive Yankee Lake water through a single Primary
Point of Delivery, the parties agree that the plans for transmission
systems on Participants' side of the Primary Points of Delivery shall
make provision for, and identify the location of such additional
metering devices as necessary for SEMINOLE to accurately measure
deliveries. of Yankee Lake water to each individual Participant. At
Participant's request and expense, SEMINOLE shall install peripheral
devices that will allow Participant to receive real-time flow
information from the metering systems. All metering systems shall be
maintained by SEMINOLE. At least once per year, SEMINOLE and
Participant shall pay for an independent testing and calibration of
the metering systems. SEMINOLE shall select and secure the testing
company services with the Participant's concurrence, and the costs of
testing and calibration shall be shared equally between SEMINOLE and
Participant. Participant shall have the right to witness the meter
testing and calibration, to receive copies of test results, and if
necessary to get an independent verification of meter calibration.
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Section 17. Joint Funding of Additional Capital Improvements.
SEMINOLE and Participant or a group of Participants may enter into
separate agreements for the purpose of mutually funding additional
capital improvements where such improvements are determined to be in
their mutual interest. SEMINOLE and Participants may also enter into
separate agreements for the conditions and pricing of sale of water
supplies derived from such mutually funded improvements. Such
separate agreements may include provisions for acquisition or
ownership of assets and/or capacity by Participant. If provided in
the joint funding agreement, Participant may include its proportionate
ownership share of such assets in its calculation of system
development charges and rates.
Section 18. Re-Rating Yankee Lake Water System. To the extent
that any component of the System is re-rated or treatment capacity is
modified with the appropriate regulatory agencies (either an increase
or decrease in capacity), then each Purchaser's corresponding Take or
Pay quantity shall be adjusted pro-rata on a basis consistent with the
Purchaser's Take or Pay share of System capacity prior to such re-
rating event. SEMINOLE agrees not to initiate a re-rating process
with the intent to reduce System capacity. For example, a Purchaser
whose Take or Pay quantity represents a 10$ share of System capacity
would receive a decrease in water allocation of 100,000 gallons per
day for a 1,000,000 gallon per day re-rating decrease. To the extent
that the re-rating of the System results in the incurrence of
additional capital expenditures, SEMINOLE will notify the Participants
of such expenditures. The expenditures required for and the
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associated re-rating will be allocated proportionately pursuant to
each Participant's Take or Pay share of System capacity, unless any
Participant decides not to participate in the cost and associated
benefits of re-rating. If a Participant decides not to participate in
the re-rating, then the change in water allocation and the
expenditures will be allocated pro-rata to the parties participating
in the re-rating in accordance with their prior share of System
capacity. All expenditures associated with a re-rating to increase
capacity will be the responsibility of the parties participating in
the re-rating and shall be paid to the Yankee Lake Enterprise Fund.
Section 19. Changes in Regulations. SEMINOLE and Participants
understand that changes in federal and state regulations that control
or regulate water supplies, as well as natural and unnatural
environmental conditions, can precipitate the need for capital
improvements beyond those specifically anticipated or identified in
this YLRWSA. In such cases, SEMINOLE and Participants shall ,fund such
improvements to the System, based on each entity's proportionate share
of the water system capacity provided under this YLRWSA, or if greater
benefit inures to a particular party, that party shall bear a greater
proportion of the costs based upon the benefit received.
Section 20. Permits. SEMINOLE, as owner and operator of the
System, shall remain the permit holder for any and all Federal, State,
regional and local regulatory or other permits required for the
System, including the SJRWMD Consumptive Use Permits (CUPs). SEMINOLE
shall submit appropriate, necessary permit applications, ensure
compliance with permits granted, and perform any associated monitoring
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and reporting required as a condition thereof. SEMINOLE has applied
to SJRWMD for a St. .Johns River CUP for the Facility for an initial
5.5 MGD. water supply to be used for re-use water augmentation (1 MGD)
and potable supply (4.5 MGD). That CUP application was the subject of
an administrative challenge. A Recommended Order has issued
recommending approval, and SEMINOLE is awaiting the decision of the
SJRWMD Governing Board on the Recommended Order. SEMINOLE shall be
the permit holder of the primary CUP issued by the SJRWMD for the
Facility, application for which shall be made by SEMINOLE for the
ultimate capacity build-out of the Facility as projected in the
initial Capacity Reservation Period. The Participants shall be solely
responsible for the application for the secondary CUP (s) required to
enable deliveries of the Facility's potable water, including
compliance with conditions of and monitoring and reporting related to
any permits issued thereunder. SEMINOLE will manage the joint
development of the primary and secondary use permits to allow for the
necessary level of coordination for demonstration of need.
(b) In the event that permitted SJRWMD CUP withdrawals from the
Facility are reduced by the SJRWMD, Capacity Reservations and Capacity
Rights shall be reduced among the Participants in proportion to the
Capacity Reservations held at the time of said regulatory action.
Such reduction in Capacity Rights will not impact the financial
responsibility and liability of the Participants as set forth in the
Capacity Reservation Schedule but rather impose required adjustments
to Water Rates.
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Section 21. Contingencies. SEMINOLE's obligation to supply water
to Participants for allocation and consumption is contingent upon:
(1) the issuance and continued validity of the primary CUP from the
St. Johns Water Management District allowing Seminole to withdraw and
use at least MGD as a maximum daily basis ( MGD as an Annual
Average Basis) from the St. Johns River; (2) the issuance and
continued validity of all permits necessary to construct and operate
the System infrastructure outlined in this YLRWSA; (3) the payment by
Participants of each one's Project Development Charge; and (4)
continued payment by Participants of Water Rates and Take or Pay
charges as specified in this YLRWSA.
Section 22. Water Supply Conditions. SEMINOLE will use its best
efforts to supply water to Participant at the Primary Points of
Delivery identified in the Conditions of Water Supply Exhibit,
attached hereto as Exhibit --
It is understood by the parties that circumstances may prevent
SEMINOLE from providing, at all times, the required flow at the
Primary Points of Delivery shown on Exhibit Should distribution
system problems cause a reduction in the delivery of water to one of
the connection points, SEMINOLE shall use its best efforts to
compensate for any reduction at the one connection point by increasing
the flow at another connection point.
Section 23. Continuity of Service. To the extent feasible,
SEMINOLE shall supply potable water for each Participant, in the same
manner as service to SEMINOLE's retail system. SEMINOLE shall use its
best efforts and reasonable diligence to provide a regular and
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uninterrupted supply of potable water at the Primary Points of
Delivery, but it shall not be liable for damage, breach of contract,
or otherwise to Participants for failure, suspension, diminution or
other variations in service occasioned by or in consequence of any
cause beyond the control of SEMINOLE, such as acts of God or of a
public enemy, .fire, floods, earthquakes, hurricanes, natural
catastrophes, failure or breakdown of transmission or other
facilities, or shutdowns of the system mandated by a regulatory agency
of the state or federal government. SEMINOLE shall provide oral notice
to Participant, and may temporarily interrupt or reduce supplies of
water to Participant, if SEMINOLE determines that such interruption or
reduction is reasonable or necessary in the case of System
emergencies, or in order to troubleshoot, repair or install equipment
or to complete inspections, replacements, investigations or perform
other maintenance work on the System. Except in cases of emergency,
and in order that Participant's water supply operations will not be
unreasonably interfered with, SEMINOLE shall provide Participant with
reasonable written notice of any such interruption or reduction, the
reason therefore, and the probable duration of service outage.
Routine maintenance activities will be planned so they will have
minimal impact on Participant's customers.
In the event of a regional water supply emergency, including
water shortages, that affect both the SEMINOLE and Participants' water
supply systems, SEMINOLE and Participants shall cooperate to the
fullest extent possible to maintain the supply integrity of the
combined SEMINOLE and Participant water systems. Should such
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emergencies require restrictions on the delivery or use of water,
SEMINOLE and Participants shall cooperate fully to take appropriate
action, including any required legislative action, to authorize the
implementation of water use restrictions as well as any necessary
enforcement action to ensure customer compliance with any such
restrictions.
Section 24. Emergency / Maintenance Usage by Participant.
Participant may receive water over the Participant's Take or Pay
quantity if there is: 1) an emergency situation, which includes, but
is not limited to plant failures, droughts in excess of droughts of
record, and water main breaks, or 2) a planned water treatment plant
shut-down in non-emergency situations, with at least 48 hours notice.
The amount to be made available will be dependent on the amount of
water then reasonably available for SEMINOLE to provide to the
Participant and requires the mutual consent of SEMINOLE and
Participant, which consent will not be unreasonably withheld.
Participant agrees to assist SEMINOLE for emergency and planned water
treatment plant shut-down circumstances under the same conditions
applicable to Participant in this Section.
Section 25. Water Quality. Water supplied under this YLRWSA by
SEMINOLE shall comply with all applicable provisions of the Florida
Safe Water Drinking Act, SS. 403.850-403.864, Florida Statutes (2008).
Provided, however, SEMINOLE shall have no duty to provide chlorine
residual or be responsible for water quality in Participants' systems
beyond the Primary Point of Delivery. Notwithstanding the foregoing,
the Participant and SEMINOLE agree that exceptions, albeit rare, can
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occur and require a coordinated response and public notification.
When such events occur, SEMINOLE and Participant will work
cooperatively to insure that their respective customers are properly
informed of any Safe Drinking Water Act violations.
Section 26. Resale to Other Water Suppliers. Participant may
sell water (but not allocate Facility capacity) supplied to it by
SEMINOLE under this YLRWSA, to other water suppliers not inside the
municipal boundaries or service area of Participant, provided that
such sales are temporary in nature. This provision shall apply to
temporary emergency situations or for the occasional seasonal sale of
water in bulk to commercial water haulers, which may use that water
outside of the municipal boundaries of Participant.
Section 27. Water System Planning and Cooperation. To facilitate
regional water planning and resource development, Participant and
SEMINOLE agree as follows:
(a) Participant Projected Water Usage.
Each five (5) years, at a minimum, starting on July 1 of Contract
Year 5, Participant .shall provide to SEMINOLE estimates of
Participant's base load water demand to be purchased from SEMINOLE by
year, for a period of ten years including any anticipated increases in
Take or Pay quantity.
(1) In addition, in any other Contract Year in which
unforeseen developments have significantly altered Participant's five
year estimates, Participant shall provide SEMINOLE with its revised
estimates of its water demand for a ten year period.
Yankee Lake Regional Water Potable Water Supply Agreement
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(2) The estimates provided for in this provision are for
planning purposes only and do not commit SEMINOLE or Participant to
either buy or supply any particular quantities of water.
(3) Seminole shall provide WMAB a summary of SEMINOLE's
projected demands for all Participants no later than [date] of each
year.
(b) SEMINOLE Evaluation of Capacity of Yankee Lake Facility.
(1) Whenever it receives revised base load demand
estimates from the Participant, SEMINOLE shall provide the Participant
with estimates of capacity of the Facility to meet all projected
system loads over the ten year planning horizon.
(2) If SEMINOLE determines that the Facility cannot meet
the projected demands Participant and others have proposed to place on
it over the ten year planning horizon, SEMINOLE and Participant
(together with other Participants who care to join in the discussions)
may initiate negotiations to determine if and how the Facility could
meet the projected loads, either through reduction in demand or
development of additional water system capacity.
(3) In no case, however, does this YLRWSA obligate
SEMINOLE to sell water beyond the Take or Pay quantities established
herein.
Section 28. Water Resource Conservation.
(a) General.
(1) The obligations this Section will apply to both
SEMINOLE and Participant. Both parties to this YLRWSA intend that
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water to which SEMINOLE holds a Consumptive Use Permit shall be used
beneficially, efficiently, and without waste.
(2) The parties encourage the development of joint
conservation programs where such partnerships are of mutual benefit
and produce increased efficiencies in program costs or water savings.
Provided, however, that funding for joint conservation programs will
be established by separate agreement between the interested parties.
(b) Water Managers Advisory Board. The WMAB will foster and
promote efficient use of water and best management practices as
outlined further in this Section.
Section 29. Water Curtailment and Protection of Water System.
(a) During times when water supplies are not adequate to meet
the aggregate of all demands placed upon the Facility, SEMINOLE and
Participants need to have a plan in place to reduce or curtail demands
so that fire, life, safety and other high priority needs are met. It
is to the benefit of all Participants that plans for curtailment be
agreed upon in advance and that plans for curtailments be coordinated
among Participants.
(b) By signing this YLRWSA, Participant and SEMINOLE
acknowledge that unforeseen or unavoidable circumstances may limit the
amount of water available to SEMINOLE for sale and distribution,
whether temporarily or permanently. Should the available supply fall
below the aggregate of all demands placed on the Facility, or should
it be reasonably predicted that supply will fall below demands before
other supplies are available, the Manager may declare that a System
water shortage is in effect.
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(c) The WMAB shall develop and recommend to the Manager a
Curtailment Plan. The Manager shall adopt the recommended Curtailment
Plan with such alterations as he or she deems necessary or advisable.
The Curtailment Plan shall be designed to accomplish reductions in
demand necessary, in the event of a water shortage, to protect the
Facility's capacity to supply water for fire, life, safety, and other
high priority needs. The Curtailment Plan shall establish procedures,
as well, whereby two or more Participants may coordinate their demand
reductions to accomplish, jointly, total necessary System demand
reductions imposed on them, even if one or more Participants
individually do not meet the reductions required of its separate
system.
(d) Whenever the Manager has declared a System water shortage,
any adopted Curtailment Plan shall be in effect. If there is no
adopted Curtailment Plan, the Manager shall require implementation of
measures he or she deems necessary or advisable to reduce all demands,
proportionally based on annual usage for the previous contract year
and on annual guaranteed purchase quantities furnished under this
YLRWSA for the previous contract year.
(e) If the Manager declares a System water shortage,
Participant shall implement measures sufficient to meet the
requirements of the Curtailment Plan (or other requirements of the
Manager for proportional reduction in demand if no Curtailment has
been adopted). Participant may do this through implementation of
measures contained in the Curtailment Plan, similarly effective
measures found in Participant's own plan, or through agreements with
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other Participants, that result, jointly among agreeing Participants,
in a total reduction in System demand equivalent to that required in
the Curtailment Plan, or, if there is no Plan, the Manager's order for
proportional reductions.
(f) SEMINOLE shall monitor compliance with the Curtailment Plan
on a schedule established in the Plan or at least every two weeks
throughout the duration of the declared water shortage.
(g) If, after the Manager declares a System water shortage,
Participant is unable individually, or in cooperation with other
Participants as contemplated in Subsection (e) above, to achieve the
required reductions in the use of water supplied under this YLRWSA,
the Manager may act to reduce the amount of water supplied to the
Participant so that it does not exceed the amount specified under the
Curtailment Measures.
Section 30. Dispute Resolution.
(a) For disputes between Oviedo, Sanford and SEMINOLE, either
individually or collectively, arising out of this YLRWSA only, the
procedures of the this Section shall supersede and operate in place
of the Interlocal Agreement on Mediation and Intergovernmental
Coordination executed on January 24, 1995.
(b) Pursuant to the exemption contained in Section 164.1041(1),
Florida Statutes, the following procedures of dispute resolution shall
provide an alternative dispute resolution process, in lieu of the
general requirements of Chapter 164, Florida Statutes, as to disputes
arising out of this YLRWSA only.
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(c) Any party may seek all remedies available at law or in
equity. The parties agree, however, prior to commencement of any
suit, they shall first engage in dispute resolution as provided in
this Section.
Step 1. Notice of Dispute
Prior to commencement of litigation of a dispute, the aggrieved
party/ parties must first provide the other(s) with a written notice
describing the dispute and submitting the dispute to resolution under
this sub-section. Such notice shall commence the dispute resolution
process.
Step 2. Negotiation
Each party shall designate a person or persons to negotiate on
its behalf, shall make a good faith effort to exchange information and
data related to the dispute, and shall meet to negotiate a resolution
of the dispute. If the dispute is resolved at this step, the parties
will memorialize the agreement by a written determination of such
resolution, sighed by the designated representatives of the parties.
All discussions, during such meeting shall be deemed privileged
settlement negotiations.
Step 3. Mediation
If the dispute has not been resolved within 45 days of the date
of notice of dispute, or such longer time as is mutually agreed by the
parties, the parties shall submit the matter to mediation. The
parties shall attempt in good faith to agree on a mediator. If they
cannot agree, they shall request a list of five mediators from an
entity or firm providing mediation services. The parties shall
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attempt in good faith mutually to agree on a mediator from the list
provided, but if they cannot agree, each party shall select one name.
The two selected shall select a third person and the dispute shall be
heard by a panel of three mediators.
Any common costs of mediation, shall be borne equally by the
parties. Each party shall bear its own individual costs therefor.
Mediation shall not continue more than 105 days past the initial
notice of dispute unless mutually agreed by the parties. If the
dispute is resolved at this step, a written determination of such
resolution shall be signed by the designated representatives of the
parties.
If the dispute has not been resolved through negotiation or
mediation within the time set by this YLRWSA, the dispute resolution
process shall be deemed ended and the parties shall be free to pursue
other remedies.
(d) Venue for any litigation between the parties arising under
or regarding this YLRWSA shall be in Seminole County, Florida. In any
dispute resolution or litigation under this YLRWSA, each party shall
bear its own costs and attorney's fees.
Section 31. Default and Remedy. In the event of default of any
provision of this YLRWSA, the non-defaulting party shall issue written
notice to the other party clearly stating the nature of the default.
If the default is for a monetary payment due hereunder, the defaulting
party shall have thirty (30) days to cure the default. In the event
of other defaults, the defaulting party shall use its best efforts to
cure the default within ninety (90) days. If such default cannot be
Yankee Lake Regional Water Potable Water Supply Agreement
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reasonably cured within such ninety (90) day period, the defaulting
party shall, upon written request prior to the expiration of the
ninety (90) day period be granted an additional sixty (60) days to
cure the default.
In consideration of the parties' fundamental need for a safe and
dependable source of water supply, the parties agree that this YLRWSA
may not be terminated prior to the normal expiration date specified in
Section 3 and the remedies available for a breach of the YLRWSA shall
include, but not be limited to, specific performance, injunctive
relief and any other equitable relief, as well as monetary damages.
Therefore, this YLRWSA is not intended to specify an exclusive remedy
for any default, but all such other remedies (other than termination)
existing at law or in equity may be availed of by any party hereto and
shall be cumulative.
Section 32. No Additional Waiver Implied. No waiver or waivers
of any breach or default (or any breaches or defaults) of any term,
covenant, condition or liability under this YLRWSA, or of performance
by the other parties of any duty or obligation under this YLRWSA,
shall be deemed or construed to be a waiver of subsequent breaches or
defaults of any kind, under any circumstances.
Section 33. Indemnification.
(a) No party hereto waives sovereign immunity except that,
consistent with all applicable State law, including, but not limited
to Chapter 768, Florida Statutes, the parties agree to hold one
another harmless for the negligent acts or omissions of itself, its
Yankee Lake Regional Water Potable Water Supply Agreement
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officers, agents, and employees, but only to the extent permitted by
law.
(b) The parties further agree that nothing contained herein
shall be construed or interpreted as a waiver of sovereign immunity of
any of the parties hereto beyond the waiver provided for in Section
768.28, Florida Statutes, as applicable.
(c) If service provided hereunder is discontinued to a customer
due to failure of the customer to pay for services provided, the party
responsible for discontinuing service shall hold the other party
harmless as to any and all claims or suits regarding such action.
Section 34. Insurance. SEMINOLE agrees to carry and arrange for
fire, casualty, public liability, and/or other insurance, including
self-insurance, on the System for purposes and in amounts which, as
determined by SEMINOLE, ordinarily would be carried by a privately
owned utility company owning and operating such facilities, except
that SEMINOLE shall not be required to provide liability insurance
except to insure itself against risk of loss due to claims for which
it can, in the opinion of SEMINOLE's County Attorney, be liable under
Section 768.28, Florida Statutes or any similar law or judicial
decision. Such insurance will provide, to the extent feasible and
practicable, for the restoration of damaged or destroyed properties
and equipment, to minimize the interruption of the services of such
facilities. All premiums for such insurance shall constitute an
Operation and Maintenance Expense of the System.
Section 35. Assignment. This YLRWSA shall be binding on the
parties hereto and their representatives and successors. Except for
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provisions regarding partial transfer of Take or Pay quantity
specified herein, no party to this YLRWSA shall assign this agreement,
or any right or obligation arising herein, without the prior written
consent of SEMINOLE.
Section 36. Successors and Assigns. This YLRWSA shall be binding
on and inure to the benefit of the respective successors, permitted
assigns, administrators and trustees of SEMINOLE and each and every
Participant.
Section 37. Disclaimer of Third-Party Beneficiaries. This
YLRWSA is solely for the benefit of the formal parties herein, and no
right or cause of action shall accrue upon or by reason hereof to or
for the benefit of any third party not a formal party hereto.
Section 38. Relationship of Parties. This YLRWSA and the
transactions contemplated hereunder are based upon the active
participation of all parties. Neither the execution nor delivery of
this YLRWSA and related Capacity Reservation Schedules, nor the
consummation of the transactions contemplated hereunder, shall create
or constitute a partnership, joint venture, or any other form of
business or governmental organization or arrangement between the
parties, except for the contractual arrangements specifically set
forth in this YLRWSA. Except as is expressly agreed to in writing in
this YLRWSA, no party (or any of its agents, officers or employees)
shall be an agent of the other party, nor shall a party (or any of its
agents, officers or employees) have any power to assume or create any
obligation on behalf of the other party. Nothing contained in this
Yankee Lake Regional Water Potable Water Supply Agreement
Page 60 of 73
YLRWSA shall create or constitute a partnership, joint venture, or any
other form of business organization or arrangement among SEMINOLE on
the one hand and any or all of the Participants on the other hand,
except for the contractual arrangements specifically set forth herein.
Section 39. Initial Implementation. All parties agree to take
such actions as are necessary to fully implement the YLRWSA in as
expeditious a manner as possible.
Section 40. Notices. Whenever a party desires to give notice to
another party, notice may be sent to:
1 For APOPRA:
2
3 City of Apopka
4 P.O. Box 1229
5 Apopka, FL 32704-1229
6
7 For DELAND:
8
9 City of Deland
10 120 S. Florida Avenue
11 Deland, FL 32720
12 For DELTONA:
13
14 City of Deltona
15 2345 Providence Avenue
16 Deltona, FL 32725
17
18 For EUSTIS:
19
20 City of Eustis
21 P.O. Drawer 68
22 Eustis, FL 32727-0068
23 For MOUNT DORA:
24
25 City of Mount Dora
26 P.O. Box 176
27 Mount Dora, FL 32756-0176
28
29 For ORANGE CITY:
30
31 City of Orange City
32 229 E. Graves Avenue
33 Orange City, FL 32763
34
35 For LONGWOOD
36
37 City of Longwood
38 175 West Warren Avenue
39 Longwood, Florida 32750
40
41 For LAKE MARY
42
43 City of Lake Mary
44 100 North Country Club Road
45 Lake Mary, Florida 32746
46
47 For OVIEDO:
48
49 City of Oviedo
50 Post Office Box 159
51 Oviedo, F1 32765
52
53 For SANFORD:
54
55 City of Sanford
56 P.O. Box 1778
57 Sanford, FL 32772-1778
58
59 For SEMINOLE:
60
61 Board of County Commissioners
62 1101 East First Street
63 Sanford, FL 327731
64
65 For VOLUSIA COUNTY:
66
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1 Board of County Commissioners 9 Winter Park, FL 32789-4386
2 123 W. Indiana Avenue 10
3 Deland, FL 32720 11
12 For WINTER GARDEN:
4
5 For WINTER PARK: 13 City of Winter Garden
6 14 251 W. Plant Street
7 City of Winter Park 15 Winter Garden, FL 34787
8 401 Park Avenue South
16 Any of the parties may change, b y w ritten notice as provided herein,
17 the addresses or persons for receipt of notices.
18 Section 41. Compliance With Laws and Regulations. In performing
19 under this YLRWSA, the parties shall abide by all Federal, State,
20 regional and local laws, statutes, ordinances, rules and regulations
2l pertaining to, or regulating the performance set forth herein,
22 including those now in effect and hereafter adopted. Any material
23 violation of sai d laws, statutes, ordinances, rules o r regulations,
24 subject to an opportunity to cure, as set forth herein, shall
25 constitute a material breach of this YLRWSA.
26 Section 42. Governing Law; Jurisdiction and Specific Performance.
27 This YLRWSA and the provisions contained herein shall be construed,
28 controlled, and interpreted in accordance with the Laws of the State
29 of Florida. In the event of litigation between any of the parties,
30 venue and jurisdiction shall lie with the Circuit Court of the
31 Eighteenth Judicial Circuit, in and for the Seminole County, Florida,
32 as to State actions and the United States District Court for the
33 Middle District of Florida, Orlando Division, as to Federal actions.
34 The parties shall be entitled to specific performance of the terms. and
35 conditions of this YLRWSA
36 Section 43. Counterparts. This YLRWSA may be executed
37 simultaneously and in any number of counterparts, each of which shall
Yankee Lake Regional Water Potable Water Supply Agreement
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1 be deemed an original, but all of which shall constitute one and the
2 same instrument.
3 Section 43. Severability. The purpose of this YLRWSA is to
4 provide for long-term water supply planning and certainty for both
5 SEMINOLE and Participants through operation of orderly plans calling
6 for the expenditure of large sums of money for regional water supply
7 and transmission facilities. It is the intent of the parties that if
8 any provision of this YLRWSA, or its application, is held by a court
9 of competent jurisdiction to be illegal, invalid, or void, the
]0 validity of the remaining provisions of this YLRWSA or its application
I1 to other entities, or circumstances shall not be affected. The
l2 remaining provisions shall continue in full force and effect, and the
13 rights and obligations of the parties shall be construed and enforced
14 as if the YLRWSA did not contain the particular invalid provision. In
15 such circumstance, SEMINOLE may propose to the Participants an
16 equitable adjustment or modification to the provisions of this YLRWSA
17 with the view to effecting, to the extent possible, the original
18 purpose and intent of this YLRWSA. Provided, however, if the invalid
19 provision or its application is found by a court of competent
20 jurisdiction to be substantive and to render performance of the
21 remaining provisions unworkable and non-feasible, if found to
22 seriously affect the consideration and is inseparably connected to the
23 remainder of the YLRWSA, the entire agreement shall be null and void.
24
Yankee Lake Regional Water Potable Water Supply Agreement
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1 Section 45. Entire Agreement; Amendment.
2 (a) This YLRWSA, together with all Exhibits and Schedules
3 attached hereto, constitutes the entire agreement of the parties
4 relating to SEMINOLE's provision of an alternative water supply under
5 this YLRWSA, and supersedes all prior contracts, agreements or
6
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understandings with respect to such alternative water supply, whether
oral or written, except to the extent such agreements are specifically
referenced herein. Each party agrees that the other party (and its
agents and representatives) has not made, and has not relied upon, any
representation, warranty, covenant or agreement relating to the
transactions contemplated hereunder than those expressly set forth
herein.
(b) Any alterations, amendments, deletions, or waivers of the
provisions of this YLRWSA shall be valid only when expressed in
writing and duly signed by the parties. This YLRWSA may be amended
only to the extent permitted by the Financing Documents authorizing
the issuance of the Obligations.
Section 46. Incorporation of Exhibits and Schedules. All
Exhibits and Schedules attached to this YLRWSA are incorporated herein
by this reference in their entirety and made a part hereof for all
purposes.
Section 47. Interpretation and Reliance. No presumption will
apply in favor of any party in the interpretation of this YLRWSA or in
the resolution of any ambiguity of any provision thereof.
Section 48. Headings; Table of Contents. The headings of the
Sections of this YLRWSA and the Table of Contents are included for
Yankee Lake Regional Water Potable Water Supply Agreement
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1 convenience only and shall not be deemed to constitute a part of this
2 YLRWSA.
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Section 49. Further Assurances. Each party agrees to use all
reasonable efforts to provide such information, execute such further
instruments and documents, and do all acts and things, as may be from
time to time reasonably requested by another party and not
inconsistent with the provisions of this YLRWSA and not involving the
assumption of obligations or liabilities different from, or in
addition to those expressly provided for in this YLRWSA, or otherwise
reasonably required to carry out the intent and provisions of this
YLRWSA.
Section 50. Consents. To the extent that the consent of any
party to this YLRWSA is required as a condition to the action of any
of the other parties, such consent shall not be unreasonably withheld.
Section 51. Interlocal Agreement and Effective Date. This YLRWSA
shall constitute an interlocal agreement pursuant to Section 163.01,
Florida Statutes. This YLRWSA shall take effect on the date that a
true and correct copy of this YLRWSA (and any subsequent amendments)
is filed and recorded by SEMINOLE with the clerk of the circuit court
in Seminole, Volusia, Lake, and Orange Counties.
Yankee Lake Regional Water Potable Water Supply Agreement
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] IN WITNESS WHEREOF, the parties to this YLRWSA have caused their
2 names to be affixed hereto by the proper officers thereof.
3 ATTEST: CITY OF APOPKA
4
5 By:
6 JANICE G. GOEBEL, Clerk JOHN H. LAND, Mayor
7
8 Date:
9
10
11 ATTEST: CITY OF DELAND
12
13 BY~
14 JULIE HENNESSY, Clerk ROBERT APGAR, Mayor
1S
16 Date:
I7 ATTEST: CITY OF DELTONA
18
19 BY~
20 Faith G. Miller, Clerk DENNIS MULDER, Mayor
21
22 Date:
23
24
2S ATTEST: CITY OF EUSTIS
26
27 BY~
28 JUDY ROBERTS, Clerk SCOTT ALES, Mayor
29
30 Date:
31
32
33 ATTEST: CITY OF LAKE MARY
34
3S
36 BY~
37 CAROL A. FOSTER, Clerk DAVID MEALOR, Mayor
38
39 Date:
40
41
42 ATTEST: CITY OF LONGWOOD
43
44 BY~
4S SARAH M. MIRUS, Clerk BRIAN D. SACKETT, Mayor
46
47 Date:
48
49
Yankee Lake Regional Water Potable Water Supply Agreement
Page 66 of 73
1 ATTEST:
2
3
4 DEBBIE RENNER, Clerk
5
6
7
8
9 ATTEST:
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12 BARBARA BARBOUR, Clerk
13
l4
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17 ATTEST:
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20 JANET R. DOUGHERTY, Clerk
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25 ATTEST:
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28 JAMES T. DINNEEN, Clerk
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33 ATTEST:
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36 CINDY BONHAM, Clerk
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CITY OF ORANGE CITY
By:
HARLEY STRICKLAND, Mayor
Date:
CITY OF OVIEDO
By:
THOMAS G. WALTERS, Mayor
Date
CITY OF SANFORD
By:
LINDA KUHN, Mayor
Date:
COUNTY OF VOLUSIA, FLORIDA
By:
FRANK BRUNO, JR., Chairman
Date:
CITY OF WINTER PARK
By
DAVID C. STRONG, Mayor
Date;
45 (Balance of this page intentionally blank; signatory page continues]
46
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Page 67 of 73
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ATTEST:
MARYANNE MORSE
Clerk to the Board of
County Commissioners of
Seminole County, Florida.
For the use and reliance
of Seminole County only.
Approved as to form and
legal sufficiency.
County Attorney
BOARD OF COUNTY COMMISSIONERS
SEMINOLE COUNTY, FLORIDA
By:
BOB DALLARI, Chairman
Date:
As authorized for execution by the Board
of County Commissioners at its ,
2009, regular meeting.
MGM/dre
02/17/09
P:Users/MMinter/YL-draft Tuesday 2-17-09(A).doc '
Attachments:
Exhibit "A"- Sketch of Yankee Lake Site
Exhibit "B"- Configuration of Yankee Lake Regional Water Treatment
Facility
Exhibit "_" Primary Points of Delivery
Schedule 5-1- Form of Capacity Reservation Schedule
Yankee Lake Regional Water Potable Water. Supply Agreement
Page 68 of 73
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Yankee Lake Regional Water Potable Water Supply Agreement
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SCHEDULE S-
2 CAPACITY RESERVATION SCHEDULE
3 Section 1. Schedule part of YLRWSA and controls in conflict.
4 This Schedule S- is an integral part of the YLRWSA and is applicable
5 to SEMINOLE and as if fully set forth in the body of the
6 YLRWSA. If any provision of this Schedule S-_ conflicts with the
7 general provisions of the YLRWSA, the provisions of this Schedule S-_
8 shall control.
9 Section 2. Take or Pay Quantity. Upon payment
10 of the Project Development Charge specified in Section 3 below,
11 shall have reserved and obtained a capacity right in
12 the Yankee Lake Regional Water Treatment Facility for MGD,
13 subject to the terms and conditions of the YLRWSA. Upon receipt from
14 SEMINOLE of certification that such capacit y is available to
15 shall commence payment to
16 SEMINOLE for 's take or pay quantity, in monthly
17 installments, at the prevailing rates as established by Resolution of
18 the SEMINOLE BCC.
19 Section 3. Project Development Charge. In consideration of the
20 covenants and agreements. of the YLRWSA, and based on the proportionate
21 share that 's Take or Pay Quantity specified in
22 Section 2 above bears to the total plant capacity of the Yankee Lake
23 Regional Water Treatment Facility, agrees to pay
24 to SEMINOLE, by October 1, 2009, its Project Development Charge in the
25 sum of $ .00.
26
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WITNESS:
Approved as to form:
Attorney for City of
STATE OF FLORIDA
COUNTY OF
CITY OF
By:
I HEREBY CERTIFY that on this day, before me, an officer duly
authorized in the State of Florida and in the County aforesaid to take
acknowledgements, personally appeared, ,
to me known to be the person described in and who executed the
foregoing instrument on behalf of the City of and
acknowledged before me that
executed the same as a free act
and deed for the uses and purposes therein stated.
WITNESS my hand and official seal in the County and State last
aforesaid this day of 2009.
Notary Public, My Commission
Expires
Yankee Lake Regional Water Potable Water. Supply Agreement
Page 71 of 73
Table XX
Capacity Reservation and Projected Demands
Year Projected Demand (MGD)*
2013
2018
2023
2028
2033
2038
Capacity Reservation**
* Basis of Take or Pay Amount
** Sum of Projected Demands
Yankee Lake Regional Water Potable Water Supply Agreement
Page 72 of 73
Provisions and Next Steps Summary
Primary Provisions
This agreement has been developed with the following primary provisions that were
reviewed in the January 30, 2009 meeting and is consistent with the discussions at our
meetings held during the latter part of 2008.
• The agreement specifies that Seminole will be the sole owner of the Facility and
that Seminole will have final policy making and management authority with
respect to the Facility.
• The Facility will be developed as a separate entity from Seminole's current water
and sewer system, and will have a separate Yankee Lake Enterprise Fund to
account for revenues and expenses unique to the Facility.
• The agreement will establish a Water Management Advisory Board of which
each Participant and Seminole will be a member.
• The Memorandum of Understanding (MOU) provides for an Initial Commitment
period which ends on Tune 15, 2009 meaning the any entity desiring to
participate must execute the Memorandum of Understanding for Project
development Agreement by that date.
• The Yankee Lake Regional Water Supply Agreement (YLRWSA) provides for
Capacity Reservation period which ends on October 1, 2009, meaning that any
entity desiring to participate must execute both the basic water supply
agreement and the specific Capacity Reservation schedule by that date.
• For a Participant to secure a reservation of capacity in the Facility, it must pay its
respective Project Development Charge to the Yankee Lake Enterprise Fund by
October 1, 2009. The Project Development Charge will be a function of a
Participant's take or pay subscription as specified in the Capacity Reservation
Schedule.
The above MOU milestone in June has been identified so that signatures of Participants to
the agreement can be competed in time for consideration of additional District regional
water supply grant funding this summer.
Primary Transmission System
In response to many questions and/ or concerns regarding the transmission system for this
project, Seminole has included provisions for the development of the Facility with a Primary
Transmission System in this agreement. The Primary Water Transmission System will be
included in the new Yankee Lake Enterprise Fund and will convey wholesale potable water
supplies to Primary Points of Delivery for the Participants. The Primary Points of Delivery
are anticipated to be a river crossing for the Volusia County Participants, and eastern,
southern and western Points of Delivery up to the Seminole County boundaries.
Provisions and Next Steps Summary
Next Steps
During the review period for the MOU and water supply agreement, Guy Minter, Seminole
County Deputy Attorney (407-665-5741), will coordinate directly with Participant
legal/management staff for water supply review and comment as we work towards a
finalized agreement. Although comments can be discussed at Participant meetings,
Participants will need to transmit comments directly to their management far presentation
to Seminole County.
Capacity Reservation Schedule
The draft water supply agreement includes a Capacity Reservation Schedule that is the
basis for the annual take-or-pay amounts as well as the total capacity reservation for the
project. The capacity reservation is intended to be a base-load capacity for this alternative
water supply (AWS). The base load concept for this AWS assumes a conjunctive use project.
Conjunctive use is the coordinated use of ground and surface water supply sources to
provide a reliable water supply by meeting base-load AWS demands with surface water,
combined with the use of groundwater authorized in each Participant's permits to cover
peak demands.
The original letters of intent for the Participants were completed in 2007. To update this
process, and prepare for the estimates of the project development charge and initial water
rater, Seminole requests that the Participants fill out the demand table, in the Capacity
Reservation Schedule, with their updated base-load demands by March 30th so that
Seminole can prepare to update the project financials.
Determination of Project DeveloQment Charge and Initial Water Rate
The Project Development Charge will be a function of a Participant's take or pay
subscription as specified in the Capacity Reservation Schedule. Therefore, the next estimate
of the Project Development Charge will be based on Participants who elect to continue with
this project and agreement. It is anticipated that after agreement comments are received,
that the next estimate of the capacities and development charge will be developed in April.
The initial water rates to facilitate decision-making have been determined using the Yankee
Lake Strategic Financial Planning Model. As with the development charge, the next
estimate of the initial water rate will be based on the next round of Participant's capacity
reservation, phased demands, and facility capacity. It is anticipated that after agreement
comments are received, that the next estimate of the initial water rates be reviewed in mid-
May at a financial model workshop for active Participants. This will allow Participants to
have an estimated Project Development Charge and estimated Water Rate prior to MOU
signature by June 15th and to allow for needed briefings and preparation over the summer
for the Water Supply Agreement signatures by October 1, 2009.