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09-16-1994 r CITY OF OKEECHOBEE MEMORANDUM TO: Mayor and Council DATE: September 16, 1994 THRU: SUBJECT: Draft Wholesale greement for Beach FROM: John J. Drago, City Administrator r Mayor Kirk received a request from Beach Water to extend their current contract for one year. Mr. Mike Minton is trying to obtain a one year agreement in order to continue his efforts to from a temporary Utility Authority. Because the current agreement does not provide adequate provisions for both parties, the City drafted a revised Wholesale Agreement. This agreement has been forwarded to Mr. Minton. Enclosed is a draft Wholesale Agreement that sufficiently meets the needs of Beach and The City. Our engineer, Bill Reese, has addressed the increase water supply requested by Beach (100,000 gallons /day). Bill also addressed the actual way the connections are made and what equipment belongs to Beach and the City. The agreement provides for the following: 1. A 1 year wholesale agreement that is fair to both parties and allows Minton et al to continue to work toward the formation of a Utility Authority. 2. A foundation agreement if the Authority cannot be formed, but Beach wants to continue as a wholesale customer. 3. A foundation agreement for future wholesale customers of the City or the Authority. The current City retail rates for water is $2.13/1,000 gallons and the debt service is $5,703.12 /Month. As you can see, Beach is saving money. Also, the City well not require Beach to post a $12,500.00 deposit. I believe this agreement fairly reflects the relationship of a supplier (City) to a wholesale customer (Beach). Mr. Minton informed me that he has forwarded this agreement to Beach Water for review. The agreement addresses infill connections and line extensions. Until the legal matters are DRAFT WHOLESALE AGREEMENT FOR BEACH PAGE 2 resolved, or the Utility Authority is informed, the Wholesale contract protects both parties. The Council agreed at a Council Meeting to continue to supply water to Beach Water. However, the Council did not agree to sell the water at the current contract price. The fee schedule reflects the proposal make to Beach in a November 12, 1991 letter from Mayor Kirk. I asked Mr. Minton to let the City know if there are any problems with the contract before Tuesday's meeting. He indicated he will try. However, Beach Water is on the Agenda, and may try to negotiate any changes before the Council at Tuesday's meeting. WHOLESALE AGREEMENT This agreement is made and entered into this 20th day of Sepbember 1994, by and between the City of Okeechobee, a political subdivision of the State of Florida (City) and the Okeechobee Beach Water Association, a Florida non profit corporation (Owner). WITNESSETH WHEREAS, CITY owns and operates a potable water system, and WHEREAS, OWNER wishes to purchase water capacity on a wholesale basis from CITY in order to serve OWNER'S customers, and WHEREAS, CITY wishes to mutually cooperate in the sale of water capacity, subject to the terms and conditions of this agreement, and WHEREAS, said purchase is requested by OWNER, NOW, THEREFORE, in consideration of the premises, mutual covenants, agreements and promises herein contained, the parties hereby covenant and agree as follows: Section 1. Recitals: The foregoing are true and correct. Section 2. Purpose: Subject to the terms and conditions hereinafter set forth, CITY shall sell and deliver to OWNER and OWNER shall purchase and receive water service. Section 3. Terms: This agreement shall continue in effect beginning October 1, 1994 and ending September 30, 1995. Should the authority of OWNER to perform this agreement become Impaired or superseded by any other authority, or if OWNER fails to perform each and every obligation hereunder taken on its part to be performed, then CITY shall have the right to immediately discontinue performance of services hereunder. Section 4. Payment: CITY agrees to bill OWNER on a monthly basis for the water usage recorded on meters. OWNER agrees to pay for all water consumed at the time of usage within 25 -days of the billing at the following prevailing rates: Volume Charge $1.38/1,000 Gallons Debt Service $3,225 /Month Service Availability $3,000 /Month OWNER agrees to operate with the understanding that if payment is not made to CITY in accordance with the provisions herein, CITY has the right to immediately cut -off and terminate the service. Section 5. Rates: Any customers that have or will connect into the OWNER'S water distribution facilities shall be customers of the OWNER and shall pay to the OWNER the rates, fees, charges and deposits for water service that the OWNER establishes. If the OWNER requests any additional services from the City, the City will charge the OWNER for such services according to the City's current rate schedule in exhibit A. Section 6. Provisions for Water Capacity: OWNER requesting water service capacity shall connect or cause to be connected, the OWNER'S distribution facilities to the CITY'S facilities at the point of connection to be determined by the public utilities department. Operation, maintenance and replacement of the distribution facilities, high service pumps, and the water flow meter from the point of connection shall be the responsibility of the OWNER. Title to the water shall pass from CITY to OWNER at the suction bowl of the high service pumps. OWNER shall fumish and install metering equipment which will be capable of measuring all water flowing from the CITY'S facilities to the OWNER'S distribution facilities. The metering equipment shall remain the property of OWNER, and OWNER shall be responsible for the operation, maintenance and replacement of the meter. CITY shall have the right to review and approve the type of meter and meter installation. CITY shall also have the right to read the meter and the right of access thereto for billing purposes. CITY shall have the right to review and approve the type of pumps and meters and installation of same for OWNER'S customers. Both parties mutually agreed that after connection of the OWNER'S facilities to the CITY'S facilities as provided herein, CITY will then continuously provide, at its cost and expense, but in accordance with the other provisions of the agreement, an adequate supply of water to the OWNERS pumps, sufficient to meet the maximum and average daily domestic demand to OWNER in a manner to conform with all applicable govemmental requirements It is further agreed that the average daily demand, based on a running 30 day average, shall not exceed 800,000 gallons /day and the maximum single day demand shall not exceed 950,000 gallons /day. ou o fl o 8s m, oo O It is further agreed that the OWNER shall not extend service to any new customers other than infill, or as stipulated below. For purposes of this document, infill should be defined as the installation of 5/8" x 3/4" meters on existing water lines. The extension of service to customers other than infill shall be subject to approval by the City. Section 7. No Representations or Warranties: The CITY does not guarantee the quality of the water supplied, nor does CITY guarantee that the supply of water furnished through the said main to the OWNER'S Water System shall be free from interruption. CITY shall not be responsible for damages to any person whomsoever for any failure to supply water or for any interruption in such service for supply and such interruption shall not constitute a breach of this contract on the part of CITY. This Agreement is entered into upon the part of CITY with the express condition that the CITY assumes no liability or responsibility hereunder to OWNER or to any person, firm or corporation by or on account of any agreement, implied or otherwise, to meet any standard of service with respect to the supply of water to be distributed by means of this Agreement, nor will CITY assume any liability as the result of the occurrence of any force majeure. Furthermore, CITY and OWNER agree to and operate with the understanding that there shall be no liability on the part of CITY: (a) to deprive other customers of desired water in order to partly or completely serve OWNER'S system; (b) at any time to fumish more or less water than is available. It is expressly noted that the OWNER shall be responsible for relocation, modification or replacement of OWNER'S facilities, including pumps, piping, valves, electric, and controls as necessary to accommodate any modifications or improvements the City makes to the existing facilities, (c) to install or not to install any other mains or other related equipment than the main or related equipment already available as to the date of execution of this Agreement; (d) for the removal and /or disconnection of any main, pumps, piping, electric, and control equipment, or related equipment if the provisions hereof are not performed by OWNER. Section 8. Indemnification: OWNER undertakes and agrees to indemnify CITY against loss or damage arising during the operation and duration of this Agreement, from any claim arising as to service or otherwise beyond the point of delivery of the water, to make good to CITY such damages as may be suffered by CITY by reason thereof; OWNER further agrees to pay attomey's fees, including appeals, for any defense which may be necessary in the event of a suit against CITY pursuant to any such claim. Section 9. Disclaimer of Third Party Beneficiaries: This Agreement 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 10. Successors and Assions: This Agreement shall be binding upon the successors and assignees of the respective parties hereto but shall not be assigned by OWNER without first obtaining the written approval of CITY. Section 11. Default. Notice Proper Form: Any notice required or allowed to be delivered hereunder shall be in writing and be deemed to be delivered when (a) hand delivered to the official hereinafter designated, or (b) upon receipt of such notice when deposited in the United States mail, postage prepaid, certified mail, return receipt requested, addressed to a party at the address set forth opposite the party's name below, or at such other address as the party shall have specified by written notice to the other party delivered in accordance herewith: CITY: City Administrator City of Okeechobee 55 S.E. Third Avenue Okeechobee, Florida 34974 OWNER: President Okeechobee Beach Water Association 8840 Highway 78 West Okeechobee, Florida 34974 -9787 Section 12. Recordation: The parties hereto agree that an executed copy of this Agreement and Exhibits attached hereto shall be recorded in the Official Records of Okeechobee County at the expense of CITY. Section 13. Severabilitv: If any part of this Agreement is found invalid or unenforceable by any court, such invalidity or unenforceability shall not affect the other parts of the Agreement if the rights and obligations of the parties contained therein are not materially prejudiced and if the intentions of the parties can continue to be effected. To that end, this Agreement is declared severable. Section 14. Applicable Law: This Agreement and the provisions contained herein shall be construed, controlled, and interpreted according to the laws of the State of Florida. Section 15. Entire Aareement: Effect on Prior Aareements: This instrument constitutes the entire Agreement between the parties and supersedes all previous discussions, understandings, and agreements between the parties relating to the subject matter of this Agreement. Amendments to and waivers of the provisions herein shall be made by the parties in writing by formal amendment. IN WITNESS WHEREOF, the parties hereto have hereunder executed this Agreement on the date and year first above written. CITY OF OKEECHOBEE OKEECHOBEE, FLORIDA By: Mayor of Okeechobee ATTEST: City Clerk Date OWNER By: Title: WITNESS Date