Lely Resorts INSTR 5278639 OR 5284 PG 1356
RECORDED 6/16/2016 9:29 AM PAGES 23
DWIGHT E. BROCK, CLERK OF THE CIRCUIT COURT
COLLIER COUNTY FLORIDA
REC$197.00 INDX$1.00
Major User Agreement for Delivery and Reuse of Irrigation Quality(IQ)Water
Lely Resorts
THIS Major User Agreement for the Delivery and Reuse of IQ Water (Agreement) is made and
entered into this I'- day of J 4^c , 20 ) G by and between:
Golf Enterprises, Inc. dba Lely Resort Golf and Country Club, a Foreign Profit Corporation,
6080 Center Drive, Suite 500, Santa Monica, CA 90045 (hereinafter referred to as "User")
Associated Real Estate Southwest, Inc., a Florida Profit Corporation, 7995 Mahogany Run
Lane, Naples, FL 34113
Commercial Properties Southwest, Inc., a Florida Profit Corporation, 7995 Mahogany Run
Lane, Naples, FL 34113
(Associated Real Estate Southwest, Inc. and Commercial Properties, Southwest Inc. are
hereinafter referred to as "Land Owner"
and the Collier District Water-Sewer District (hereinafter referred to as "District"), collectively,the
Parties hereto ("Parties"). This Agreement will take effect on 1.1(Ng. I'. , 20 L' and will
be effective through September 30, 2020.
RECITALS
WHEREAS, IQ Water offers an environmentally sustainable method for managing wastewater
disposal, conserving potable water sources, and Section 403.064, F.S. encourages local
governments to implement reuse projects and places limitations on deep well injection and
other forms of effluent disposal; the District desires to use for itself and make available to the
public, IQ Water as an alternative water resource to be used for both irrigation and non irrigation
purposes; and,
WHEREAS, all wastewater treatment plant permittees that reuse IQ Water or dispose of effluent
upon any property owned by another party, must enter into a binding agreement between
the involved parties to ensure that construction, operation, maintenance, and monitoring of
such use meets the requirements of Chapters 62-600, 62-620 and 62-610, F.A.C.; and,
WHEREAS, the Board of County Commissioners (Board) has adopted Ordinance No. 2013-48, to
maintain compliance with District Wastewater Reclamation Facility operating permits, applicable
laws, rules, and regulations, ensure consistency with the IQ Water Policy and allow for
optimization of the District's IQ Water System; and,
WHEREAS, the Board has also adopted an IQ Water Policy, as it may be supplemented and
amended from time to time, which is intended to provide beneficial public use of IQ Water by
ensuring the optimum utilization of the District's limited water supplies; and,
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WHEREAS, the District agrees to deliver IQ water and the User agrees to receive, accept, and
beneficially reuse IQ water upon the lands described in Exhibit "A" and in accordance with the
terms, conditions and responsibilities of this Agreement.
NOW,THEREFORE, the Parties agree as follows:
1. RECITALS. The recitals above are true and correct and are hereby incorporated into and
made a part hereof.
2. CAPITALIZED AND UNDEFINED TERMS SHALL HAVE THE MEANINGS ASCRIBED TO THEM
IN THE DISTRICT IQ WATER POLICY.
3. USER REPRESENTS AND WARRANTS RECORD OWNERSHIP. Refer to Exhibit D for
modification of this section for a special condition. The User hereto
represents and warrants to the District that the Party or Parties identified herein as the
User constitute all persons or entities that are the record owners of the irrigable
property described in Exhibit "A," attached hereto (hereinafter referred to as the
"Property")
4. On June 25, 2013, the Board of County Commissioners (Board) adopted Ordinance No.
2013-48 relating to the production, sale and delivery of IQ Water to Users within the
District for the benefit of both the Users and the District, among other provisions.
Ordinance No. 2013-48,to include all of its definitions,terms, conditions,obligations and
requirements, is hereby incorporated into this Agreement in its entirety by reference.
5. IQ WATER POLICY. The Board of County Commissioners (Board) has also adopted an
IQ Water Policy (Policy), that may be supplemented and amended from time to time,
which delineates certain policies for providing IQ Water Service to include, but not be
limited to, definitions, levels of service, application of rates, and the provision of service.
6. QUANTITY.
Bulk Service Customers: the User's Allocation is based on the combination of the
availability of the District's 10 Water and the IQ Water Application Rate for the Property
as described in Exhibit "A." The User's Allocation, which the District agrees to make
available, and the User agrees to accept based on the terms of this Agreement, is
calculated as 618,240 gallons per day (god). This Allocation constitutes the minimum
amount of IQ Water that the District agrees to provide to the User, subject to all of the
other terms and conditions as set out further in this Agreement.
The District is not obligated to provide any additional IQ Water to the User beyond the
User's Allocation for the term of this Agreement. However, based upon IQ Water
availability, the District will use all reasonable efforts pursuant to the terms of this
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0
Agreement to provide the User with additional volumes of IQ Water beyond the User's
Allocation to approximate the historic volumes delivered to the User. Delivery of this
additional IQ Water at any time does not grant the User with an increase to its
Allocation under this Agreement. No Allocations will exceed the amount as is determined
by the availability of the IQ Water.
If the User is desirous of limiting the amount of IQ Water received to a specific volume
less than or only equal to the Allocation amount, the User must file a request in writing
to the District. Modifications to this request may only be made once per calendar year.
The District agrees that it will provide the User with its Allocation of IQ Water instead of
the deep injection of IQ Water (including charging aquifer storage and recovery wells);
except for reclaimed water needed for water reclamation facility treatment processes,
injection well testing, flushing and other regulatory requirements or as it may be deemed
necessary by the District to do so from time to time in order to protect the Public's health
and safety.
For purposes of this Agreement, each day equals a twenty-four (24) hour period, which
begins at midnight, 12:00 a.m. The District retains the right and sole discretion with
respect to delivery times to the Users.
Prior to the addition of any future Users of the IQ Water System, and based on IQ Water
Availability, existing Major Users will be provided with an opportunity to increase their
Allocations on a pro-rata basis up to the amount of one inch (1")per acre, per week, of the
IQ Water Application Rate of the then recognized amount determined by the IQWAR
utilization, in exchange for the User's water use permit substitution or offset credits. For
the purpose of the application of this future User prioritization, any increase in IQ Water
volume for existing Major Users will be based on the amount of the Major Users' irrigable
acres irrigated with IQ Water in 2012.
7. TERM. The User agrees to receive from the District, IQ Water for approved uses for a
minimum term of five (5) years from the effective date of this Agreement (or for such
other initial term as may be determined by the District to provide for the expiration of
the first five-year term of this Agreement to coincide with the expiration of all other initial
five-year Major User Agreements), and which may be renewed for successive five (5)year
terms upon the mutual agreement of both Parties. Within no less than one hundred
eighty (180) days and no more than three hundred sixty five (365) days from the end of
the initial five (5) year term or the then-current five (5) year term, the Parties will meet
and discuss the terms and conditions for entering into a new Agreement, which will
reflect all of the terms and provisions then being incorporated into like District Major
User Agreements. If revisions to the then current standardized Agreement are required,
then the User and Land Owner may elect to not enter into a new Agreement with the
District at its discretion. If revisions are not required to the then-current standardized
Agreement or the Special Provisions, then that Agreement shall automatically renew for
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a new five year term. Refer to Exhibit D for modification of this section for
a special condition.
8. IQ WATER DEFINITION. shall mean alternative water resources other than potable water,
available to the District and shall include: (a) wastewater that has received the treatment
established by the Florida Administrative Code, Rule 62-610.460, currently defined as
wastewater that meets, at a minimum, secondary treatment and high-level disinfection
after disinfection and before discharge to holding ponds or the IQ Water System and (b)
Supplemental Water Supplies such as ground or surface water. IQ Water may also be
referred to as reuse water, effluent water, or reclaimed water.
9. POINTS OF DELIVERY(POD).The POD is as defined in Ordinance No. 2013-48 and for each
of the golf courses, is located as follows:
Mustang: the point where the IQ main on the south side of Crowned Eagle Lane crosses onto
the golf course property
Classics:at the downstream buried flange of the IQ meter assembly
Flamingo Island: the point where the IQ main to the meter assembly crosses the
right-of-way line of Tiger Island Boulevard
and further identified in Exhibit "B."
In the event that an existing Point of Delivery(POD) is being relocated and the District will
be relinquishing ownership and maintenance responsibility of any facilities, the District
agrees to provide to the User of any such conveyed facilities, a 5-year warranty
commencing from the date this Agreement is executed by the Parties, to offset any direct
expenses that the User may incur as the result of the permanent assumption of the
ownership and maintenance of the conveyed facilities, whereby the District will agree to
repair any facilities conveyed to the User that break down or otherwise fail to function as
intended, when the cause of the failure cannot be directly attributed to an act or acts
caused solely by the User or its agents. The District will also provide the User all District
easements necessary for the User's maintenance of the conveyed facilities.
10.DELIVERY OF IQ WATER. All IQ Water delivered to User will meet applicable state,federal
and local requirements at the District's Compliance Points. The District will not provide
any additional wastewater treatment to the IQ Water beyond the compliance points
located at the water reclamation facilities. No warranties or guarantees are made by the
District with respect to IQ Water characteristics after its discharge from the water
reclamation facilities. The District will not be held liable for any damage or harm to
persons, property or vegetation resulting from the application of District IQ Water by the
User.
11.METERS. All connections to the IQ Water system shall be metered in accordance with
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Ordinance No. 2013-44, as amended.
12.DISTRICT RESPONSIBILITIES UPSTREAM OF THE POINT OF DELIVERY. Except to the
extent, if any, clearly and expressly specified in the Special Provisions paragraph in this
Agreement to the contrary, the District shall own and be responsible for all repairs and
associated costs of operating the IQ water system up to the POD.
13.DISTRICT RESPONSIBILITIES DOWNSTEAM OF THE POINT OF DELIVERY. Except to
the extent, if any, clearly and expressly specified in the Special Provisions paragraph
in this Agreement to the contrary, the District shall NOT own, operate, or maintain the
IQ water distribution system and shall not be deemed to be in possession or control of
the IQ water distribution system downstream of the POD.
14.USER RESPONSIBILITY UPSTREAM of the POINT OF DELIVERY. The User shall NOT
own, operate, maintain or change or modify any part of the District's infrastructure.
However, the User is responsible for landscape maintenance such as mowing and
tree trimming around the District owned infrastructure on the User's property.
15.USER RESPONSIBILITIES DOWNSTREAM OF THE POINT OF DELIVERY. Except to the
extent, if any, clearly and expressly specified in the special provisions paragraph in this
Agreement to the contrary, the User shall take full responsibility for the design,
construction, permitting,financing, compliance, operation, maintenance, and repair of
the IQ water system downstream of the POD as outlined in Ordinance No. 2013-48.
All User-owned pump stations must be equipped to automatically shut down due to
low pressure or lack of flow. The District shall not be liable for User equipment failure or
any damage due to low pressure or lack of flow.
The User shall post IQ Water advisory signs as described in Section 62-610.468 F.A.C.
Residential, industrial, and commercial users shall post, maintain, and replace signage at
all community/facility entrances, storage facilities, and water features. Golf courses shall
post, maintain, and replace signage at the storage facilities, water features, and either at
the first and the tenth tee or on score cards, at the User's option.
16. USER RESPONSIBILITY TO CONVEY EASEMENTS FOR IQ WATER FACILITIES TO DISTRICT.
Refer to Exhibit D for modification of this section for a special condition.
Upon the request from the District, t h e User, its successors and/or assigns, shall
convey to District any and all utility and/or access easements necessary for IQ water
distribution on their premises, at no cost to the District. All such documents shall be
prepared, reviewed and processed in accordance with the provisions of Ordinance No.
2004-31, as amended, Ordinance No. 2013-48 and recorded as set forth herein.
17. CONSERVATION. User shall make all reasonable efforts to conserve IQ Water. The User
shall ensure that the User's employees, contractors, agents, residents, and invitees
are informed about the importance of water conservation by implementing an
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educational program.
18. INDEMNIFICATION AND HOLD HARMLESS.
( i ) Upon a finding through a production of competent evidence that: (a) the District has
not placed anything either into or onto the User's property without the User's written
consent, and (b)the User is responsible for injury to persons on,or damages to the property
of the District, the User indemnifies and holds the District harmless from and against all
liabilities, claims, damages, expenses, or actions, either at law or equity, caused or incurred
as the result of the negligence, omissions or willful acts of the User, its agents, employees,
residents, guests, or invitees, whose acts or omissions for which the District may be held
liable during the District's performance of this Agreement; to specifically include any cross
connections made by the User, including, but not limited to: between potable water, IQ
water, surficial water and any other additional or supplemental water sources. User
acknowledges that IQ water, due to its chemical composition, may not be compatible with
the Users' irrigation of certain susceptible vegetation. User agrees that District will not be
held liable for any damages that may occur to vegetation or for any other damages that may
occur due to the use of IQ water by the User provided that the quality of the IQ Water that
is delivered to the User meets all applicable state, federal and local requirements at the
District's Compliance Points.
(ii) Upon a finding through the production of competent evidence that: (a) the User has
not placed anything either into or onto the District's property or the District's easements
for its reuse water delivery system without the District's written consent and the placement
caused the alleged damage, and (b) the District is responsible for injury to persons on, or
damages to the residential or commercial property of the User as the result of the
negligence, omissions or willful acts of the District's employees, agents or other entities
otherwise engaged by the District to develop, install, operate, manage or maintain the
District's reuse water system on the User's property;the District,expressly without waiving
any of its rights to sovereign immunity, and then only to the extent permitted by Florida
law, in particular, Section 768.28, Florida Statutes, hereby indemnifies and holds the User
harmless from and against all liabilities,claims,damages,expenses,or actions,either at law
or equity, caused or incurred as the result of the negligence,omissions or willful acts of the
District, its agents, employees, residents, guests, or invitees, whose acts or omissions for
which the User may be held liable during the User's performance of this Agreement. The
District will not be held liable for any consequential damages as the result of its lawful
activities in providing IQ Water to any Users.
(iii) For the purpose of both provisions (i) and (ii) above, if the Parties cannot resolve any
dispute between them with their own representatives, formal mediation with a Florida
Certified Mediator shall be held by the Parties with each party bearing one-half(1/2) of the
expenses of the Mediator selected by and acceptable to both Parties. If mediation between
the Parties is unsuccessful, both Parties may avail themselves of all other available
remedies at law and in equity.
19. CROSS CONNECTIONS PROHIBITED. On all properties where IQ Water service is provided,
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the public water supply shall be protected by an approved backflow protection device as
specified in Ordinance No. 1997-33, as amended.
To determine the presence of any potential hazards to the District's potable or IQ Water
Systems, the District shall have the right, but not the duty,to enter upon the premises and
operate the private system of any User receiving IQ Water for the purpose of performing
cross connection inspections.
If a cross connection is found on a User's property,the District will immediately suspend IQ
Water service pursuant to the provisions of Collier County Ordinance No, 2013-48. The
District will provide a verbal notification to the User, followed by a detailed written notice
as soon as practicable. IQ Water service will only be reinstated upon: (a)the removal of the
cross connection together with any reasonable terms and conditions that the District
determines are necessary to avoid future cross connections; (b) there is no history of
previous cross connections or violations of the other provisions of Collier County Ordinance
No. 2013-48 relating to the public health and safety by the User; and (c) the Florida
Department of Environmental Protection (FDEP)provides its approval of the reinstatement
to the District in a writing, if necessary. The User will be responsible for all costs incurred
by the District and the User resulting from the cross connection. These costs include all
potable or IQ Water used, including all potable water used for flushing lines, and follow-up
cross connection inspections performed by a licensed professional irrigation contractor or
a certified Reclaimed Water Field Inspector as mandated by the District. IQ Water service
will not be restored prior to submittal of a written report summarizing the cross connection
inspections with subsequent written approval by the District.
The User shall provide results of cross connection inspections performed upon initial
connection to the District's System and take all reasonable precautions to prevent any cross
connections while making repairs or extensions to the User's irrigation system.
The User must provide the results of a cross connection inspection performed at each
internal service connection prior to each future Agreement renewal.At the end of the five
year term, one hundred percent of all potable and IQ Water service connections shall have
been inspected. The results of the cross connection inspections must be submitted to the
District by the User within thirty days of inspection.At the time of the Agreement Renewal,
the User is required to submit a minimum of two cross connection inspections.The service
connections that require inspections are listed in Exhibit "C." Additional cross connections
inspections may be required as determined by the District when additional service
connections are made or cross connections are found
20. RATE TO BE CHARGED FOR IQ WATER. For having available and/or furnishing the IQ
Water,the District shall charge and User shall pay the rates and charges as defined in
Ordinance No. 2001-73, as amended.
The User is receiving Bulk Service under this Agreement.
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Bulk Service will be billed by the District as being the greater of either: i) the daily
Allocation multiplied by 365 days and divided by twelve billing cycles, or ii) the
actual IQ Water delivered as metered at the User's POD.
Additional usage above the Allocation amount will be billed per published and
prevailing rates, per service type, per 1000 gallons. For Major Users with Bulk Service,
the Allocation as billed for the respective billing period shall be equivalent to a meter
availability charge.
21. BILLING. Subject to terms and conditions of this Agreement, the District shall invoice
the User for services on a monthly basis in accordance with Ordinance No.2001-73, as
amended, billing cycle meter readings, calculated charges, and other applicable rates,
fees, and charges. The invoice shall include the billing period of service, the amount
of IQ water service flows for each billing cycle, the total dollar and cents amount of
the invoice, the amount of any credit applicable to said invoice whether by payment
or otherwise, the due date, and contact telephone number for any questions regarding
the invoice.
22. UNPAID FEES CONSTITUTE A LIEN ON USER'S PROPERTY. The User acknowledges and
agrees that in the event that any fees, rates, or charges for the IQ Water Service
and facilities provided for under this Agreement are not paid and become delinquent, any
unpaid balance and all interest accruing thereon shall constitute a lien on the User's
property pursuant to Section 10 of Ch. 2003-353, Laws of Florida, the "Collier County
Water-Sewer District Special Act" (the "Act").
23. USER EMERGENCY SITUATIONS. In the event of an emergency as defined in this
Paragraph 23, the User shall notify any of those District representatives set forth herein
and request that the supply of IQ Water temporarily cease. Such notice shall be made
in writing where circumstances permit (an electronic writing is acceptable), and in the
event of an immediate emergency, such notice may be by telephone with subsequent
written confirmation. Emergencies shall include, but not be limited to,the following:
(a) Climatic conditions such as hurricanes, floods, or unseasonably excessive
rainfall that makes it impossible for User to accept IQ Water.
(b) Short term equipment or material failure, making it impossible for User to store
or distribute the IQ Water.
(c) An act of God that makes it impossible for User to accept, store or distribute the
IQ water.
24. DISTRICT EMERGENCY SITUATIONS.The District may temporarily cease IQ Water Delivery
in anticipation of a major storm event.This emergency situation shall not relieve the User
from payment for that period of time.
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25. DISTRICT NOT LIABLE FOR FAILURE TO DELIVER IQ WATER. The District shall not be
held liable by the User for failure to deliver IQ Water if certain situations preventing
delivery exist that are beyond the reasonable control of the District. Such situations
include, but are not limited to,the following:
(a) Unavailability of I Q Water due to a loss or lack of influent to the water
reclamation facilities due to a collection system failure or a reduction of
wastewater influent flow beyond the anticipated low flow periods.
(b) Unavailability of I Q Water due to a process failure.
(c) Non-compliant IQ Water, making it unusable for approved uses.
(d) Equipment or material failure in the IQ Water delivery system, including storage
and pumping.
(e) IQ Water treatment facility repair or maintenance.
(f) An act of God that makes delivery of IQ Water by the District not feasible or
impossible.
(g) Unusual climatic conditions such as hurricanes, floods, or unseasonably
excessive rainfall that makes it not feasible or impossible for the District to deliver
IQ Water.
In the instance of Force Majeure or other situations limiting IQ Water availability,
the District has the right to interrupt service per District operating protocols. Users
directly impacted by a specific event; such as interruption of all Users downstream of
IQ Water main break will be interrupted as needed. In the event of limited IQ Water
availability, Bulk Users will be uniformly interrupted by a pro-rata percentage of their
Allocation.
26. NOTICES. Any notice, request, demand, instruction or other communication to be given
to either party hereunder shall be in writing sent electronically with a request for
confirmation or receipt, or by facsimile with automated confirmation of receipt; or
hand delivery by a private service; or by registered or certified United States mail,
return receipt requested, postage prepaid; or personal delivery addressed as follows:
USER: DISTRICT:
Lely Resort Golf and Country Club Wastewater Director
c/o American Golf Corporation 4370 Mercantile Avenue
8004 Lely Resorts Boulevard Naples, FL 34103
Naples, FL 34113
Attn: David Leverant, General Manager
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_ 1
With copies to:
Associated Real Estate Southwest, Inc. Office of the Collier County Attorney
7995 Mahogany Run Lane 3299 Tamiami Trail E., Suite 800
Naples, FL 34113 Naples, FL 34112
Attn: Joseph D. Boff, President
and
Commercial Properties Southwest, Inc. American Golf Corporation
7995 Mahogany Run Lane 6080 Center Drive, Suite 500
Naples, FL 34113 Los Angeles, CA 70045
Attn: Joseph D. Boff, President Attn: General Counsel
The addressees and numbers for the purpose of this section may be revised by either Party
by giving written notice of such change to the other party in any of the manners provided
herein. For the purpose of changing such addressees, addresses and numbers only, unless
and until such written notice is received,the last addressee and respective address stated
herein shall be deemed to continue in effect for all purposes. Notice given in accordance
with the provisions of this section shall be deemed to be delivered and effective upon
receipt of an automated fax confirmation; or on the fifth day after the certified or
registered mail has been postmarked; or receipt of personal delivery; or delivery with an
overnight courier or on the date upon which the return receipt is signed or delivery is
refused or the notice is designated by the postal service as not delivered as the case may
be, if mailed.
27. NOTIFICATION IN EVENT OF EMERGENCY.The User's representative who shall be notified
in the event of an emergency or District's inability to deliver IQ water are:
Trent Compton, Golf Course Superintendent
Office: (239) 775-7130, Mobile (239)289 3736
lelysuper@americangolf.com
The District shall attempt User notification by telephone or email stating the nature
of the emergency and the anticipated duration of the service interruption if the
interruption is expected to exceed 72 hours. It is the responsibility of the User to provide
written notification to the District of a change in representative. User may change its
representative by providing written notice to District to become effective upon
acknowledgement by District.
The District representatives who shall be notified in the event of an emergency are:
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Irrigation Quality Manger, (239) 252-6284; AND On Call Wastewater Department, (239)
252-2600
28. USE OF IQ WATER. (i) The User hereby affirms that it has read, understands and will fully
comply with the terms, conditions, requirements and obligations of Ordinance No. 2013-
48 for the receipt of District IQ Water; and (ii)the User shall accept the IQ Water delivered
by the District and use it only for approved uses on the User's Property pursuant to all
applicable local, State, and Federal regulations.
29. CHANGES IN LAW/EXCUSE FROM PERFORMANCE.
(i) This Agreement will be governed for this initial five (5) year term by the provisions of
Collier County Ordinance No. 2013-48 as adopted on June 25, 2013.
(ii)During the term of this Agreement, if there are any amendments, revisions or changes
made to any relevant provisions of federal, state or other local laws, rules or regulations
that negatively affect either of the Parties' ability to perform its respective duties or
obligations, or obtain the reasonably backed financial benefits expected under this
Agreement,then within ninety (90) days following the final adoption of such new law, rule
or regulation, the Parties will meet and conduct good faith discussions and negotiations
with respect to resolving the effected Party's adverse impact to include a mutually
agreeable termination of the Agreement, if warranted.
(iii) If for any reason during the term of this Agreement, any State or Federal governments
or agencies shall fail to issue necessary permits, grant necessary approvals, or shall adopt
any laws or rules that will require any change in the operation of the treatment,
transmission, and distribution systems or the application and use of IQ water,then to the
extent that such requirements shall affect the ability of any Party to perform any of the
terms of this Agreement,the affected Party shall be excused from the performance thereof
and the Parties hereto in conformity with such permits, approvals, or requirements shall
negotiate a new Agreement if practicable.
(iv) However, nothing shall require User or District to accept any new or renewal
agreement if it substantially adds to the District's or the User's obligations or
responsibilities duties, obligations, and expenditures hereunder.
30. RIGHT TO TERMINATE. In the event of a default under this Agreement,the non-defaulting
party shall provide the defaulting party written notice of the default. The defaulting party
shall be given a minimum of thirty (30) days or such other reasonable time period (if the
default cannot be cured in thirty(30)days)to cure the default. If the default is not timely
cured, the non-defaulting party may notify the defaulting party in writing that it has
elected to terminate this Agreement. In the event that there is default under this
Agreement that could result in immediate harm to the Public's health or safety,the non-
defaulting party may immediately suspend its performance under this Agreement to
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include the immediate suspension of the delivery of IQ Water if the non-defaulting Party
is the District, by providing the defaulting Party with telephonic notice of such suspension
followed up by written notice. Any such suspension shall continue until such time as the
default is cured or the Agreement has been terminated.
31. ACCESS. User consents to the reasonable entry by the District upon the User's Property
as provided for by Ordinance No. 2013-44.
32. NO THIRD PARTY BENEFICIARIES. This Agreement is solely for the benefit of the identified
Parties hereto, and their successors in interest, or assigns, 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
Party hereto.
33. SEVERABILITY. If any court of competent jurisdiction finds that any part of this Agreement
is invalid or unenforceable, such invalidity or unenforceability shall not affect the other
parts of this 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.
34. LAND USE APPROVALS. This Agreement shall not be construed as a basis for granting,
assuring, indicating, denying, refusing to grant or preventing any future grant of land
use zoning approval, permissions, variances, special exceptions or any other rights with
respect to the real property in the approved uses area, so long as those approvals do not
render this Agreement null and void, and/or negatively impact the IQ use by the User.
35. APPLICABLE LAW. This Agreement and the provisions contained herein shall be
construed, controlled, and interpreted according to the laws of the State of Florida,
Florida Administrative Code, Collier County Ordinances, and the IQ Water Policy, as they
may be amended or replaced from time to time.
36. ASSIGNMENT. Assignment or transfer of the User's or Land Owner's rights or obligations
under this Agreement is prohibited without prior written consent of the District. Any
attempt by User or Land Owner to assign or otherwise transfer this Agreement off the
Property shall be deemed to be null and void.
37. BINDING EFFECT. This Agreement shall be binding upon the Parties hereto, their
successors and assignees.
38. RECORDATION; AGREEMENT RUNS WITH THE LAND. This Agreement shall be executed
in accordance with Florida Statutes to allow for it to be recorded in the Public Records of
Collier County, Florida, at the District's cost, and shall thereby run with the land. Any
easement granted by the User and any successor and/or assigns, or any termination
issued hereunder, shall also be recorded in the Public Records of Collier County, Florida.
The User shall have the right to sell, transfer, or encumber the Property, except that
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The Land Owner shall have the right to sell, transfer, or encumber the Property, except
that written notice of any proposed sale or transfer must be given to the District, as
provided for herein, at least thirty (30) days prior to sale or transfer. So long as use
of the property shall substantially continue to be for the purposes intended by this
Agreement, any subsequent party shall be obligated under the same terms and
conditions of this Agreement unless modified by written agreement between the
District and any successor and/or assigns. At the first five (5) year renewal period after
such sale, transfer, or encumbrance, the Agreement must be renewed with the
successor and/or assigns, or IQ Water service will be discontinued.
39. ENTIRE Agreement. This Agreement constitutes the entire Agreement between the
parties with respect to the subject matter referenced herein. Any amendment hereto
shall be in writing duly executed with the same formalities as this Agreement by the
Parties hereto, or their successors in interest to the Property. Each amendment shall
clearly and specifically refer to this Agreement by title and date. Any amendments to
Ordinance No. 2013-44 or the IQ Water Policy shall not be applicable to the User during
the initial five (5)year term of this Agreement.
40. SPECIAL PROVISONS. Exhibit "D" assigns and defines site specific provisions, if any
are applicable.
41. EXHIBITS. See attachments.
Witnesses: AS TO USER USER
SOkr Golf Enterprises, Inc., dba Lely Resort Golf and
Country Club, a Foreign Profit Corporation
Witness (Signature) /
Name: �°‘^� Nvq,��� By: pick C. (Osew C Fc)
j(Z:e C
Witness (Sig ,`cure) Printed Name and Title
Name: ,
Page 13 of 22
1
Witnesses: AS TO LAND OWNER
a) Com tial Prop-rties Sou i � - . FI- ida
Witness (Signature) Profit ..rporati.n /
•
1301 ,4 ..._.... -- ..'__ b . . -4:-- I----' •-_5(ck.,.....t—
oress iS'gnature) Printer Name and Title
Name:J✓' (4- 0l2� �e-
9 �
,I• J Associate. ' - . state Sou west • ,., . Ho ida
Witness (Signature) Profit 'orporatirn i
me: —i-tu(i 44flC- 00/ e
By: / k_--
‘6a
Wi ss (Signature) fillfr
,.1Li
Name: 6,•/ i` .� Prin ed Name and Title
,9
Page 14 of 22
a�
0
State of 7003
County of 0 41"1
The foregoing Major User Agre%ment for Delivery and Reuse of Irrjgation Quality (IQ) Water was
acknowledged before me this day of C , 2016, by P'1'1` (Name)
° (Title)on behalf of Golf Enterprises, Inc.,dba Lely Resort Golf and Country
Club, a Foreign Profit Corporation (USER), who is personally known to me or who has produced
(type of identification)asd k fiat�.
/�j�
(affix notarial seal) as'
O.," *V-N
(Signature of Notary Public)
STER31C
L!t !E!L1pires Serial/Commission#:(if any)
My Commission Expires:
CLA aG
State of
— 04 , 9-
County of
The foregoing Major User Agreement for Delivery and Re of Irrigation Quality (IQ) Water was
acknowledged before me this •ay of , 201_, by
(Name) (Title) on behalf of Commercial
Properties Southwest, Inc.,a Florida Profit Corp. .tion(LAND OWNER), who is personally known to me
or who has produced type of identification) as identification.
(affix notarial seal)
(Signature of Notary Public)
(Print Name of Notary Public)
NOTARY PUBLIC
Serial/Commission#:(if any) A'
My Commission Expires: c%
13
State of
County of
The foregoing Major User Agreement for Delivery and Reus= •f Irrigation Quality (10) Water was
acknowledged before me this '.y of , 201, by
(Name) (Title)on behalf of Associated Real
Estate Southwest, Inc., a Florida Profit Corporat': (LAND OWNER), who is personally known to me or
who has produced •e of identification)as identification.
(affix notarial seal)
(Signature of Notary Public)
(Print Name of Notary Public)
NOTARY PUBLIC
Serial/Commission#:(if any)
My Commission Expires:
Page 15 of 22
(7))0
State of /
County of
The foregoing Major User Agreement for Delivery and Reuse orIrr�ion Quality (10) Water was
acknowledged before me this_day of , 201 -by (Name)
(Title)on behalf of Golf En,rprises, Inc.,dba Lely Resort Golf and Country
Club, a Foreign Profit Corporation (USER), who ' personally known to me or who has produced
(type of identification) identification.
(affix notarial seal)
(Signature of Notary Public)
(Print Name of Notary Public)
NOTARY PUBLIC
Serial/Commission#:(if any)
My Commission Expires:
State of FL t
County of
The foregoing Major User Agreement for Delivery and Reuse of Irrigation Quality (IQ) Water was
acknowledged before me this day of _V-'1 , 201&, by
- 1J (r. -- (Name) ' : (Title) on lahalf of Commercial
Properties Southwest, Inc., a Florida Profit Corporation (LAND OWNER), who is personally known to me
o - •• • ••° • - - -- - - • .
••
(affix notarial seal) c •.t . � .�
(Signaturer' of Notary Public),
1 •,, . TERI L WILSON ► (Print Name of Notary Public)
tyi. Notary Public-State of Ftorida I NOTARY PUBLIC
I ;y Commission#FF 958392 0 Serial/Commission#:(if any)PF-9SY 1)
1•%;{� ���•..•' My Comm.Expires Mar 7,2020
My Commission Expires: 2,VI `z-G
State of
County of (.,d5 4_ `
The foregoing Major User Agreement for Delivery and Reuse of Irrigation Quality (10) Water was
acknowledged before me this day of , 201,x, by
* s,
(Name) (Title)on b half of Associated Real
Estate&outhwest, Inc., a Florida Profit Corporation (LAND OWNER), who is personally known to me or
w r flas produc6d_ •- - - ' ' - '•• • .dentifi . -'on.
(affix notarial seal) -er --'
(Signature of Notary Public)
,•`'•isv,,,"'•. TERI L WILSON (Print Name of Notary Public)
—* 4
? _. Notary Public-State of Ftorida I NOTARY PUBLIC z�+
• Commission#FF 958392 I Serial/Commission#:(if any)
•' a,, . My Comm.Expires Mar 7,2020
My Commission Expires: 2�•
Page 15 of 22
0
.4.....
AS TO THE DISTRICT:
• ' '-',,
-4,1• 5.1°4/40
ATTEST,%\':•-•*''•..'••• `'4.6 '`1'. ,\\'‘' 1,,
,..‘
DWIGHT E.ICROC ,C1.E4Pi BOARD OF DISTRICT COMMISSION ER'','COLLIER
DISTRICT, FLORIDA, AS THE GOVERNING BODY
BIA-LitilLf"l' -1&)lt&T/Iiit'' OF COLLIER DISTRICT AND EX-OFEfCIO THE
&
,,1 ile..10.4 V ZL.IP ro, MI GOVERNING BOARD OF THE COLLIER DISTRICT - ---_
WATER SEW DISTRICT1:-
r
Sitlii#6414111T4" i' '
r r ,
r .
eivifj".
By:
...' /i.,,
CHAIRMAN D N N A FIALA,DISTRICT 1 COMMISSIM ,,,
Afiii.1 jolooP
Approved as to form and legality:
___ C • _
Jennifer A. Belpk
Assistant County Attorney - .),(:)3) 46\\*145?
\
"D-
Page 16 of 22 0—,,
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0
EXHIBIT A
•
Property Description
The property covered by this Agreement consists of the three golf courses known as Lely
Classics, Lely Mustang and Lely Flamingo Island. Legal descriptions of the properties may be
found in the official records of Collier County, OR Book 1858, Pages 469 through 494.
•
•Page 17 of 22 •
•
(3))
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Page 18 of 22
Exhibit B(2 of 3)
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Page 19 of 22
Exhibit 3(3 of 3)
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Page 20 of 22 ���
EXHIBIT C
Cross Connection Inspections Required
® Flamingo/Mustang Clubhouse '..
® Classics Clubhouse '..
® Any other structures on the golf courses property that are served by a potable water '...
system
Page 21 of 22
EXHIBIT D
Special Provisions
1. Land Owner and User are parties to certain Golf Course Leases C-1, C-2 and C-3 dated June 22,
1989, as amended (the "Leases"). User has the right to irrigate the property via the leasehold
interest created under the Leases. This arrangement necessitates several modifications to the
standard terms and conditions of this Agreement.
Section 3 of this Agreement is modified to substitute the word "Land Owner" for "User in the
Section title and wherever else in Section 3 it appears.
2. Section 7 of this Agreement is modified to add the following after the words"...five year term."in
the fifteenth line, "Notwithstanding the foregoing, User or Land Owner shall have the right to
terminate the Agreement prior to the expiration of the Term in the event that any of the three
golf courses ceases to be used as a golf course."
3. Section 16 of this Agreement is modified to substitute the word "Land Owner" for"User" in the
Section title and wherever else it appears. Section 16 is further modified by inserting after the
words "...at no cost to the District" in the fourth line, the words "and User shall consent to the
granting of such easement".
4. Section 18(ii) of this Agreement is modified by inserting the words"leasehold interest or" in the
fifth line after the word "to" and by inserting the words "or Land Owner" after the word "User"
in the same line. This section is further modified by inserting the words "and Land Owner" after
the word "User" in the tenth line.
5. Section 25 of this Agreement is modified to insert, after the word "District" in the third line,
"Provided, however, that, User shall receive a pro rata credit to the extent that District's failure
to deliver IQ Water resulted in the actual IQ Water delivered to be less than the Allocation set
forth in Section 6."
6. Section 36 of this Agreement is modified by inserting, after the word "void." In the fourth line,
"Nothing herein shall prevent the Land Owner from assuming all of User's rights and obligations
under this Agreement if the User's agreement with the Land Owner expires or is terminated."
7. Section 36 of this Agreement is further modified by inserting,after the word"terminated." in the
foregoing item 6, "User shall notify District when it intends to assign its rights and obligations
under this Agreement to its corporate affiliate,AGC FL Leasing, LLC. No further approval from the
District will be required for this assignment". All subsequent assignments require District
approval.
8. Section 38 of this Agreement is modified by deleting the word "User' in the fourth and seventh
lines and substituting the word"Land Owner"at each of these locations.
9. IQ meter assembly and appurtenances, including pressure transducer and staff gauge located in
the IQ Water discharge ponds shall remain the property of the District.
Page 22 of 22