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09-27-1994 DEAN, MEAD MINTON ATTORNEYS AND COUNSELORS AT LAW 1903 SOUTH 25TH STREET (407) 464-7700 P. 0. BOX 2757 SUITE 200 (407) 562 -7700 FORT PIERCE, FLORIDA 34954 2757 FORT PIERCE, FLORIDA 34947 FAX (407) 464-7877 September 27, 1994 VIA TELEFAX John Drago City Administrator, City of Okeechobee 55 SE Third Avenue Okeechobee, FL 34974 -2932 VIA TELEFAX Leland C. Pearce, President Okeechobee Beach Water Association 8840 Highway 78 West Okeechobee, FL 34974 Re: Extension of Agreement between Okeechobee Beach Water Association, Inc. and City of Okeechobee Dear Mr. Drago and Mr. Pearce: Following the City Commission meeting last week, I had an opportunity to meet with the Board of Directors of Okeechobee Beach Water Association, Inc. "Okeechobee Beach to receive their comments and to address the issues that were raised by the City Commission. I believe that the Okeechobee Beach Board after hearing the concerns of the City Commission, has come forth with a very reasonable proposal that would allow us to finalize the terms of the Extension and Modification Agreement for submission to the City Commission for approval on October 4 and to the Okeechobee Beach Board of Directors for approval at their next meeting. The two major outstanding issues addressed at the City Commission meeting and the Okeechobee Beach response thereto are as follows: 1. Disputed Area. Both parties appear comfortable with the concept of the Disputed Area as outlined in our September 20, 1994 correspondence except that the City raised concerns about commercial development on U.S. Highway 441/98 and a new development that was presently being considered by the City known as the Tripp Park. Okeechobee Beach's response to the City's concerns are as follows: IN ORLANDO rON, IN BREVARO COUNTY DEAN, CAPOUANO EGERTON, BLOODWORTH, DEAN, MEAD, SPIELVOGEL, GOLDMAN E. BOYD CAPOVANO 6 B 1200 P. A. MEAD (407) 841-1200 (407) 053 -2333 401) 259 8900 (407) 725 6373 John Drago -and Leland C. Pearce September 27, 1994 Page 2 a. Regarding the commercial property along U.S. Highway 441/98, Okeechobee Beach is agreeable to authorizing in the Extension Agreement that the City may extend service to commercial customers contiguous to the City's existing lines located along 441; and b. Regarding the Tripp Park project, Okeechobee Beach has, I believe, a 6" water main which virtually abuts the property in question and Okeechobee Beach has suggested that in order to prevent the City or the Tripp Park from incurring additional infrastructure expense, it would be convenient for the Tripp Park to be serviced from Okeechobee Beach's lines but pursuant to a master water meter agreement similar to that already in place regarding the Farrell Dairy houses behind the Shrine Club. It is my understanding that the City has a meter which is read and the volume is deducted from the volume consumed by Okeechobee Beach and billed separately by the City. Obviously from the Utility Authority's perspective, this would be preferable to incurring additional infrastructure costs as it would be the most efficient means to provide service long term. Okeechobee Beach would have no objection to the City's providing sewer service to Tripp Park. 2. Gallonaae. In order to avoid confusion as to the terms of the original agreement, it is believed that the gallonage should be addressed by simply increasing the current agreement from 750,000 gallons to 850,000 gallons. This would avoid lengthy meetings regarding the method of calculation and preserve the status quo which was the intent of the Extension Agreement. Okeechobee Beach has asked that for clarification purposes, it be clearly reflected that the 850,000 gallons per day is an annual average which I believe is the understanding under the current Agreement. In light of Okeechobee Beach's willingness to work out the service area issue, I believe they are making a good faith attempt to amicably resolve this matter. I enclose for your reference a revised Extension and Modification Agreement incorporating the changes noted above along with some additional minor wording changes which are designed to clarify the position that this Extension and Modification Agreement does not, in any way, affect the terms of the Agreement as it exists prior to September 30, 1994 and that the charges under Resolution No. 89 -5 John Drago -and Leland C. Pearce September 27, 1994 Page 3 incorporate all fees and charges for the services rendered. I understand paragraph 5 of the Agreement has some references that are no longer applicable (i.e. chlorination) and the language related to the charges under paragraph 2 will clarify that concern. Once you have had an opportunity to review the foregoing, if you have any questions or if you believe we need to have an additional meeting to discuss the same, please contact me. I will be available Thursday afternoon. If not, then I suggest that the attached Agreement be submitted to the City Commission for consideration at the October 4 meeting and likewise be submitted to the Okeechobee Beach Board of Directors for approval. I am pleased we have been able to assist in facilitating this Extension and Modification Agreement and believe that we have adequately addressed all parties' concerns in this process. With best regards, I remain, S' ce' y o• /chael D. inton MDM /dj Enclosure cc: John Abney (w /enclosure) (via telefax) John Cook (w /enclosure) (via telefax) Burton Conner (w /enclosure) (via telefax) John Cassels (w /enclosure) (via telefax) c: \mdm \20566dj.01 EXTENSION AND MODIFICATION AGREEMENT THIS EXTENSION AND MODIFICATION AGREEMENT made and entered into ffective as of the 1st day of'nctober, 1994, by and between the Okeechobee Beach Water Association, Inc., a Florida non profit corporation with its principal place of business in Okeechobee County, Florida, (hereinafter referred to as the "Association and the City of Okeechobee, a municipal corporation located in Okeechobee County, Florida (hereinafter referred to as the "City WHEREAS, the Association and City entered into that certain Agreement dated August 6, 1985 (hereinafter referred to as the "Agreement whereby the City agreed to provide to the Association potable water pursuant to the terms thereof; and WHEREAS, the term of said Agreement is for ten (10) years terminating on September 30, 1994; and WHEREAS, as a result of disagreements between the Association and the City related to the Agreement, there is ongoing litigation regarding the Agreement and other matters between the parties; and WHEREAS, the parties are desirous of extending the terms of said Agreement for one (1) year while efforts are undertaken to form a regional water utility authority which would make the current litigation between the parties moot, but the parties do not wish to prejudice either party's position in said litigation during said year; NOW, THEREFORE, in consideration of the sum of One Dollar ($1.00), the receipt and sufficiency of which is hereby acknowledged, and other good and valuable consideration, the parties hereby agree to extend and modify the terms of said Agreement to become effective as of October 1, 1994 and for the time period subsequent thereto; 1. The foregoing recitals are true and correct and are incorporated herein. 2. Paragraph 1 of the Agreement is hereby amended and modified by the deletion of the phrase "...750,000 gallons per day for a period of ten (10) years" and the insertion in lieu thereof of the phrase "..1850.000 gallons per day annual average"..". 3. Paragraph 2 is hereby deleted in its entirety and the following is substituted in lieu thereof: The Association agrees to pay water rates and fees applicable to wholesale water treatment in the County in accordance with the terms of Resolution No. 89 -5, a copy of which is attached hereto and made a part hereof as Schedule "A Notwithstanding anything contained herein to the contrary, such rates and tees shall constitute the entire fees charged for all services to be rendered under the Agreement. 4. Paragraph 3 is deleted in its entirety and the following is substituted in lieu thereof: 3. For the purposes of this Agreement, the term "Disputed Area" shall mean that overlapping geographic area south of the Association's service area as defined in Exhibit "A" of the Agreement and north of the City's 201 Facility Planning Area Boundary, the legal description for which is attached hereto and made a part hereof as Exhibit "B" which area is highlighted on the map attached hereto and made a part hereof as Exhibit "C The parties hereby agree that within the Disputed Area during the term of this Agreement, (i) the Association will not extend new service except as necessary for infill which is defined as the installation of 5/8 "x 3/4" meters on lines run from the existing mainlines, and (ii) the City will not extend service to any new customers, except as follows: A. City may extend service to commercial customers contiguous to the City's service lines existing along U.S. Highway 441/98 as of October 1, 1994, and B. City may extend water service from the Association's lines under a master water meter arrangement and waste water service to the project known as Tripp Park, more appropriately described in Exhibit "D" attached hereto and made a part hereof. 5. Paragraph 8 isimgdytied to add the following: The term of this Agreement shall be extended for a period of one (1) year commencing October 1, 1994 and shall be binding upon the successors and assigns of the parties hereto. 6. The parties agree to insert new paragraphs 91=d 10 immediately after paragraph 8 and before the closing of the Agreement which shall read as follows: 9. 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 mall, postage prepaid, certified mall, 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 ALL This Agreement and the provisions contained herein shall be construed, controlled, and interpreted according to the laws of the State of Florida. 7. Except as amended and modified pursuant to the terms hereof, the terms and conditions of the Agreement shall continue in full force and effect. and none of the modifications agreed to herein shall have anv retroactive effect or amlication. AUL If any part of this _Extension and Modification Agreement is found invalid or unenforceable by any court, such invalidity or unenforceability shall not affect the other parts of the Extension and Modification 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 Extension and Modification Agreement is declared severable. IN WITNESS WHEREOF, the parties hereto have hereunder executed this Extension and Modification Agreement on the date and year first above written. ATTEST: CITY OF OKEECHOBEE By: By: City Clerk James Kirk, Mayor of Okeechobee Date: OKEECHOBEE BEACH WATER ASSOCIATION By: By: Secretary Leland C. Pearce, President Date: c: \mdm \obwa.ema