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CR 01/24/2017
THE FOLLOWING DOCUMENTS WERE TURNED IN TO THIS OFFICE BY THE COURT REPORTER IN ATTENDANCE AT THE JANUARY 24, 2017 BCC MEETING G--&-z- 1> - J - Agenda Item No. I Agenda Item Topic c (r9- . / (For Public Comment, list topic) Meeting Date: ` ' < 7' NameGAret ,C J /Ze - Address: 606 C, POrr ��j� Z. , rt Representing/Petitioner:MA (:v7j(,/A p 33P kV)L.D//06 /�l � Other: �-'ej_ P COLLIER COUNTY ORDINANCE NO. 2003-53, AS AMENDED BY ORDINANCE 2004-05 AND 2007-24, REQUIRES THAT ALL LOBBYIST SHALL, BEFORE ENGAGING IN ANY LOBBYING ACTIVITIES(INCLUDING, BUT NOT LIMITED TO, ADDRESSING THE BOARD OF COUNTY COMMISSIONERS), REGISTER WITH THE CLERK TO THE BOARD AT THE BOARD MINUTES AND RECORDS DEPARTMENT YOU ARE LIMITED TO THREE (3) MINUTES FOR YOUR COMMENTS AND ARE TO ADDRESS ONLY THE CHAIR PUBLIC COMMENT IS NOT INTENDED TO BE A FORUM FOR SELF-PROMOTION. PUBLIC COMMENT SPEAKERS WHO ENGAGE IN ADVERTISING THEIR BUSINESS, PERSONAL POLITICKING OR OTHER FORMS OF SELF-PROMOTION WILL BE ASKED TO LEAVE THE PODIUM. 410 PLACE COMPLETED FORM ON THE TABLE TO THE LEFT OF THE DAIS - PLEASE PRINT CLEARLY 1\ r` jtkt� Agenda Item No. 7 Agenda Item Topic / /6 �s ,g g p (For Public Comment, list topic) Meeting Dates -t.--1 c LA Name: tq 'lr1F4CPA (, Address: Ps kp(e I- L 3 /zo Representing/Petitioner: Other: COLLIER COUNTY ORDINANCE NO. 2003-53, AS AMENDED BY ORDINANCE 2004-05 AND 2007-24, REQUIRES THAT ALL LOBBYIST SHALL, BEFORE ENGAGING IN ANY LOBBYING ACTIVITIES (INCLUDING, BUT NOT LIMITED TO, ADDRESSING THE BOARD OF COUNTY COMMISSIONERS), REGISTER WITH THE CLERK TO THE BOARD AT THE BOARD MINUTES AND RECORDS DEPARTMENT YOU ARE LIMITED TO THREE (3) MINUTES FOR YOUR COMMENTS AND ARE TO ADDRESS ONLY THE CHAIR PUBLIC COMMENT IS NOT INTENDED TO BE A FORUM FOR SELF-PROMOTION. PUBLIC COMMENT SPEAKERS WHO ENGAGE IN ADVERTISING THEIR BUSINESS, PERSONAL POLITICKING OR OTHER FORMS OF SELF-PROMOTION WILL BE ASKED TO LEAVE THE PODIUM. PLACE COMPLETED FORM ON THE TABLE TO THE LEFT OF THE DAIS - PLEASE PRINT CLEARLY Alt:Id3131NIbd 3St/31d — SIda 3H1301d313H101. 318d13H1 NO WbOJ a3131d1A103 3OVld 'WflIOOd 3H1 3AV31 01 CIDSV 39 11I NOI±OWOHd-d13S dO SWHOd EJ3H10 HO JNINOI110d 1VNOSH3d `SS3NISfl9 813H1 DNISI1H3AOV NI 39VJN3 OHM SHJNV3dS 1N3WWOO 0118fld 'NOIIOWOHId-d13S HOd WfHOd V 38 01 a34N31N1 ION SI 1N3WWOO O118ld UIWHO 3H1 A1N0 SSmaav 0131:1V aNy S1N3WW00 1:If10A 1:103 S31f1NIW (E) 33UH101 a311W1131:IV f10A 1N3W1HVd9a SOHOORI ONV S31f1NIW GHHVO8 3H1 IV GHVO8 3H1 01>1H31O 3H1 H11M H31SI938 `(SH3NOISSIWWOO AiNl0O dO GHVO9 3H1 DNISSHICICIV '01 C131IW11 ION 1f18 `9NI0f11ON1) 83111AIIOV 0NIA9901 ANV il NI JNIOVON3 3HOd38 `11VHS 1SIA9901 llb IVH±S3E111103E1 `17E-LOOZ ONV 50-i702 30NVNIQHO A8 43ON3Wv St> `£5-£OOZ 'ON 3ONVNIQHO AINfl0O H311100 "MOO ---> / fl) i r :aeuoggad/6ui}uasaada8 svo . - . , ,--, • ,,, ..4. � :ssaappd fico I i ^ d Ji :auaeN Is b I b 6// :awa 6uimem (30o1 lsll `juawwo3 ollgnd Jod) V 3�dol wail apua6b 'o u�a a ua� ,ii N Weil p d _ Agenda Item No. 7 ! Agenda Item Topic C� u g p (For Public Comment, list topic) Meeting Date: Name: 44 /4-12 cc)Z,p o(1/ Address: 1 -0 Qi rf 4-v r i L-0s 1c Representing/Petitioner: Other: G A ''n- CY(ZA-4&7 e AA' COLLIER COUNTY ORDINANCE NO. 2003-53, AS AMENDED BY ORDINANCE 2004-05 AND 2007-24, REQUIRES THAT ALL LOBBYIST SHALL, BEFORE ENGAGING IN ANY LOBBYING ACTIVITIES (INCLUDING, BUT NOT LIMITED TO, ADDRESSING THE BOARD OF COUNTY COMMISSIONERS), REGISTER WITH THE CLERK TO THE BOARD AT THE BOARD MINUTES AND RECORDS DEPARTMENT YOU ARE LIMITED TO THREE (3) MINUTES FOR YOUR COMMENTS AND ARE TO ADDRESS ONLY THE CHAIR PUBLIC COMMENT IS NOT INTENDED TO BE A FORUM FOR SELF-PROMOTION. PUBLIC COMMENT SPEAKERS WHO ENGAGE IN ADVERTISING THEIR BUSINESS, PERSONAL POLITICKING OR OTHER FORMS OF SELF-PROMOTION WILL BE ASKED TO LEAVE THE PODIUM. PLACE COMPLETED FORM ON THE TABLE TO THE LEFT OF THE DAIS - PLEASE PRINT CLEARLY Agenda Item No. 1H Agenda Item Topic 0 luk.,19 F ' -e- UT, ry (For Public Comment, list topic) Meeting Date: — c)' Lf - ( 1 Name: 0 A R 12,kg-e Address: 227 M Representing/Petitioner: R Other: COLLIER COUNTY ORDINANCE NO. 2003-53, AS AMENDED BY ORDINANCE 2004-05 AND 2007-24, REQUIRES THAT ALL LOBBYIST SHALL, BEFORE ENGAGING IN ANY LOBBYING ACTIVITIES(INCLUDING, BUT NOT LIMITED TO, ADDRESSING THE BOARD OF COUNTY COMMISSIONERS), REGISTER WITH THE CLERK TO THE BOARD AT THE BOARD MINUTES AND RECORDS DEPARTMENT YOU ARE LIMITED TO THREE (3) MINUTES FOR YOUR COMMENTS AND ARE TO ADDRESS ONLY THE CHAIR PUBLIC COMMENT IS NOT INTENDED TO BE A FORUM FOR SELF-PROMOTION. PUBLIC COMMENT SPEAKERS WHO ENGAGE IN ADVERTISING THEIR BUSINESS, PERSONAL POLITICKING OR OTHER FORMS OF SELF-PROMOTION WILL BE ASKED TO LEAVE THE PODIUM. PLACE COMPLETED FORM ON THE TABLE TO THE LEFT OF THE DAIS - PLEASE PRINT CLEARLY Agenda Item No. 9 E Agenda Item Topic- �� ° g p v� e r (For Public Comment, list topic) Meeting Date: __ 17 Name: ;ActI t1 Address: ?3c, grylIvJ Representing/Petitioner: ou ., \ctpJ,e 140 P\ Other: COLLIER COUNTY ORDINANCE NO. 2003-53,AS AMENDED BY ORDINANCE 2004-05 AND 2007-24, REQUIRES THAT ALL LOBBYIST SHALL, BEFORE ENGAGING IN ANY LOBBYING ACTIVITIES(INCLUDING, BUT NOT LIMITED TO, ADDRESSING THE BOARD OF COUNTY COMMISSIONERS), REGISTER WITH THE CLERK TO THE BOARD AT THE BOARD MINUTES AND RECORDS DEPARTMENT YOU ARE LIMITED TO THREE (3) MINUTES FOR YOUR COMMENTS AND ARE TO ADDRESS ONLY THE CHAIR PUBLIC COMMENT IS NOT INTENDED TO BE A FORUM FOR SELF-PROMOTION. PUBLIC COMMENT SPEAKERS WHO ENGAGE IN ADVERTISING THEIR BUSINESS, PERSONAL POLITICKING OR OTHER FORMS OF SELF-PROMOTION WILL BE ASKED TO LEAVE THE PODIUM. PLACE COMPLETED FORM ON THE TABLE TO THE LEFT OF THE DAIS - PLEASE PRINT CLEARLY Agenda Item No. Agenda Item Topic D 6 7 e (For Public Comment, list topic) Meeting Date: 006///7 Name: RIR,"/1 �- N�y Address: ;76-77& N i��� S FL s f�7� Representing/Petitioner: Other: COLLIER COUNTY ORDINANCE NO. 2003-53, AS AMENDED BY ORDINANCE 2004-05 AND 2007-24, REQUIRES THAT ALL LOBBYIST SHALL, BEFORE ENGAGING IN ANY LOBBYING ACTIVITIES (INCLUDING, BUT NOT LIMITED TO, ADDRESSING THE BOARD OF COUNTY COMMISSIONERS), REGISTER WITH THE CLERK TO THE BOARD AT THE BOARD MINUTES AND RECORDS DEPARTMENT YOU ARE LIMITED TO THREE (3) MINUTES FOR YOUR COMMENTS AND ARE TO ADDRESS ONLY THE CHAIR PUBLIC COMMENT IS NOT INTENDED TO BE A FORUM FOR SELF-PROMOTION. PUBLIC COMMENT SPEAKERS WHO ENGAGE IN ADVERTISING THEIR BUSINESS, PERSONAL POLITICKING OR OTHER FORMS OF SELF-PROMOTION WILL BE ASKED TO LEAVE THE PODIUM. PLACE COMPLETED FORM ON THE TABLE TO THE LEFT OF THE DAIS - PLEASE PRINT CLEARLY FORM 8B MEMORANDUM OF VOTING CONFLICT FOR COUNTY, MUNICIPAL, AND OTHER LOCAL PUBLIC OFFICERS LAST NAME—FIRST NAME—MIDDLE NAME NAME OF BOARD,COUNCIL,COMMISSION,AUTHORITY,OR COMMITTEE Saunders, Burt Collier County Board of County Commissioners MAILING ADDRESS THE BOARD,COUNCIL,COMMISSION,AUTHORITY OR COMMITTEE ON 3299 Tamiami Trail East, Suite 300 WHICH I SERVE ISA UNIT OF: CITY COUNTY ❑CITY Cif COUNTY ❑OTHER LOCAL AGENCY Naples Collier NAME OF POLITICAL SUBDIVISION: DATE ON WHICH VOTE OCCURRED Collier County January 24, 2017 MY POSITION IS: d ELECTIVE ❑ APPOINTIVE WHO MUST FILE FORM 8B This form is for use by any person serving at the county, city, or other local level of government on an appointed or elected board, council, commission, authority, or committee. It applies to members of advisory and non-advisory bodies who are presented with a voting conflict of interest under Section 112.3143, Florida Statutes. Your responsibilities under the law when faced with voting on a measure in which you have a conflict of interest will vary greatly depending on whether you hold an elective or appointive position. For this reason, please pay close attention to the instructions on this form before completing and filing the form. INSTRUCTIONS FOR COMPLIANCE WITH SECTION 112.3143, FLORIDA STATUTES A person holding elective or appointive county, municipal, or other local public office MUST ABSTAIN from voting on a measure which would inure to his or her special private gain or loss. Each elected or appointed local officer also MUST ABSTAIN from knowingly voting on a measure which would inure to the special gain or loss of a principal (other than a government agency) by whom he or she is retained (including the parent, subsidiary, or sibling organization of a principal by which he or she is retained);to the special private gain or loss of a relative; or to the special private gain or loss of a business associate. Commissioners of community redevelopment agencies(CRAB)under Sec. 163.356 or 163.357, F.S., and officers of independent special tax districts elected on a one-acre, one-vote basis are not prohibited from voting in that capacity. For purposes of this law, a "relative" includes only the officer's father, mother, son, daughter, husband, wife, brother, sister, father-in-law, mother-in-law, son-in-law, and daughter-in-law. A"business associate" means any person or entity engaged in or carrying on a business enterprise with the officer as a partner, joint venturer, coowner of property, or corporate shareholder(where the shares of the corporation are not listed on any national or regional stock exchange). ELECTED OFFICERS: In addition to abstaining from voting in the situations described above, you must disclose the conflict: PRIOR TO THE VOTE BEING TAKEN by publicly stating to the assembly the nature of your interest in the measure on which you are abstaining from voting; and WITHIN 15 DAYS AFTER THE VOTE OCCURS by completing and filing this form with the person responsible for recording the minutes of the meeting, who should incorporate the form in the minutes. APPOINTED OFFICERS: Although you must abstain from voting in the situations described above, you are not prohibited by Section 112.3143 from otherwise participating in these matters. However, you must disclose the nature of the conflict before making any attempt to influence the decision, whether orally or in writing and whether made by you or at your direction. IF YOU INTEND TO MAKE ANY ATTEMPT TO INFLUENCE THE DECISION PRIOR TO THE MEETING AT WHICH THE VOTE WILL BE TAKEN: • You must complete and file this form (before making any attempt to influence the decision)with the person responsible for recording the minutes of the meeting,who will incorporate the form in the minutes. (Continued on page 2) CE FORM 8B-EFF. 11/2013 PAGE 1 Adopted by reference in Rule 34-7.010(1)(f),F.A.C. APPOINTED OFFICERS (continued) • A copy of the form must be provided immediately to the other members of the agency. • The form must be read publicly at the next meeting after the form is filed. IF YOU MAKE NO ATTEMPT TO INFLUENCE THE DECISION EXCEPT BY DISCUSSION AT THE MEETING: • You must disclose orally the nature of your conflict in the measure before participating. • You must complete the form and file it within 15 days after the vote occurs with the person responsible for recording the minutes of the meeting,who must incorporate the form in the minutes.A copy of the form must be provided immediately to the other members of the agency, and the form must be read publicly at the next meeting after the form is filed. DISCLOSURE OF LOCAL OFFICER'S INTEREST Burt Saunders hereby disclose that on January 24, 20 17 • (a)A measure came or will come before my agency which(check one or more) inured to my special private gain or loss; inured to the special gain or loss of my business associate, inured to the special gain or loss of my relative, my former clients, including Orange Tree Utility its principals and affiliates inured to the special gain or loss of // ./+/ � , by whom retained; or .-+�dl91 1/0 AwSei �GrSis4 a a t 1 ,4 o iA #1/CvWf inured to the special gain or ? 'w �� ' ca as �`� rcdr[ Si"$ Q"J which is the parent subsidiary, or sibling organization or subsidiary of a principal which has retained me. (b)The measure before my agency and the nature of my conflicting interest in the measure is as follows: On January 24, 2017, BCC Agenda Item 9B, the Board will consider a recommendation to approve by resolution an integration agreement incorporating the terms of the settlement of a lawsuit against Orange Tree Utility Company, Orange Tree Utility Associates and related parties and to approve the transfer documents required to transfer water and wastewater assets to the County. I will abstain from voting on this item pursuant to Sections 112.3143 and 286.012, Fla. Stat. to avoid any perceived prejudice or bias as I previously represented Orange Tree Utility Company, its principals and affiliates in this matter. If disclosure of specific information would violate confidentiality or privilege pursuant to law or rules governing attorneys, a public officer, who is also an attorney, may comply with the disclosure requirements of this section by disclosing the nature of the interest in such a way as to provide the public with notice of the conflict. f#‘4'l January 24, 2017 Date Filed Signature NOTICE: UNDER PROVISIONS OF FLORIDA STATUTES §112.317, A FAILURE TO MAKE ANY REQUIRED DISCLOSURE CONSTITUTES GROUNDS FOR AND MAY BE PUNISHED BY ONE OR MORE OF THE FOLLOWING: IMPEACHMENT, REMOVAL OR SUSPENSION FROM OFFICE OR EMPLOYMENT, DEMOTION, REDUCTION IN SALARY, REPRIMAND, OR A CIVIL PENALTY NOT TO EXCEED$10,000. CE FORM 88-EFF. 11/2013 PAGE 2 Adopted by reference in Rule 34-7.010(1)(f), F.A.C. (1) Non-foreign affidavits, no-lien affidavits, "gap" affidavits, waivers and releases of lien or such other forms as are customarily required for issuance of the title insurance policy referenced herein; (2) Any corporate, trust or partnership resolutions or documents, affidavits, certificates, estoppel certificates, corrective instruments, releases, satisfactions or terminations as deemed necessary by counsel for the County; (3) Those instruments required by the title insurer insuring the real property set forth in Appendix A or easements or other rights including, but not limited to, those identified in Appendix B; and (E) County shall pay all taxes, fees or other charges necessary for transfer, filing or recording of the documents delivered by Orange Tree and Developer to the County on the Integration Date. ARTICLE V. COUNTY AGREEMENT TO SERVE SECTION 5.01 DEVELOPER TO PROVIDE PERIODIC GROWTH PROJECTIONS TO COUNTY. Consistent with the County's obligation to expand the on-site water and wastewater treatment plants or otherwise provide such levels of treatment capacity as required to meet Developer's demand, and to ensure that the County possesses sufficient knowledge of when Developer's projected demand shall be required in the future, Developer and Orange Tree shall provide to County, to the attention of Dr. George Yilmaz,Administrator, Collier County Public Utilities, or his successor, at Public Utilities Division, 3301 E. Tamiami Trail, Naples, Florida 34112, on January 1 of each year following the Integration Date, and until build out of the Orange Tree Planned Unit Development, a schedule identifying connections made in the prior year and Developer's plans and projections for growth for the next three (3)years,together with documents or data substantiating such plans and projections. Developer and Orange Tree acknowledge and agree that the provision of this information to the County is required to provide the County proper notice of the prospective needs of Developer and Orange Tree in the Orange Tree Service Area. SECTION 5.02 CREDITS AGAINST SYSTEM DEVELOPMENT CHARGES. The County will provide Developer or its successors with an impact fee or connection charge credit toward new utility connections to the extent of any "net excess capacity," if any, in the Orange Tree water and wastewater system at the time of transfer. The parties agree that the independent professional engineering firm of Hole Montes has been retained and was jointly paid by the parties to audit the Orange Tree water and wastewater system to determine total excess capacity over current uses of the water and wastewater system, and that on August 19, 2015, Hole Montes issued its Final Report entitled "Orange Tree Utility Company Capacity and Service Commitment Review" ("Hole Montes Report"), which is attached as Appendix I. The parties further agree to retain and jointly pay Hole Montes to update the Hole Montes Report to account *7 for any changes in net excess capacity, if any, in the Orange Tree water and wastewater 11 c713 system resulting from Equivalent Residential Connections ("ERCs") which have been allocated or sold to developers or builders since August 19, 2015 through and including the Integration Date ("Updated Hole Montes Report"), and that the Updated Hole Montes Report shall establish the net excess capacity for the Orange Tree water and wastewater system and the corresponding number of ERCs to which the Developer, Orange Tree or their successors and assigns shall be entitled. The County agrees that any change in its impact fee rate schedule will not affect the number of ERCs provided to Developer, Orange Tree, or their successors and assigns. In no event will Developer be entitled to credit for more ERCs than are necessary to service the Orange Tree PUD Area. ARTICLE VI. OBLIGATIONS OF PARTIES PRIOR TO CLOSING SECTION 6.01 CONDUCT OF PARTIES AFTER SIGNING THIS AGREEMENT. (A) At all times prior to the Integration Date, the parties shall act in compliance with the Joint Stipulation executed by the parties as part of the Pending Lawsuit, a copy of which is attachedhereto as Appendix J. The County shall have the right, at any reasonable time during normal business hours with four (4) days prior notice to Orange Tree, to enter upon Orange Tree's or Developer's property to inspect the Orange Tree System, to familiarize itself with day- to-day operations including access to billing hardware and software, to review the operational practices of Orange Tree, to coordinate with Orange Tree the necessary transition activities, and to ensure compliance with any and all federal and state regulatory requirements; provided, however, that such access shall not be had or done in any manner so as to unreasonably interfere with the normal conduct of the Orange Tree System. (B) Orange Tree and Developer have represented to County that, except as described in subsection(L) of Section 3.01,there are no regulatory compliance issues affecting the Orange Tree System that are outstanding on the date of this Agreement. In the event that Orange Tree or Developer shall be notified of the existence of a regulatory compliance issue affecting the Orange Tree System,the County shall have the opportunity to participate in all negotiations with appropriate regulatory agencies concerning the necessary corrective actions and compliance timelines associated with all regulatory compliance issues. However, prior to the Integration Date, Orange Tree and Developer shall have the final authority on any corrective actions and decisions related to any regulatory compliance issue, and will be solely liable for all obligations to pay any monetary penalties, fines, assessments or administrative costs or other monetary judgments of any kind in addition to capital costs as may be associated with achieving regulatory compliance. ARTICLE VII. POST-INTEGRATION COMMITMENTS SECTION 7.01 TREATMENT PLANTS PROPERTY. 12 L3 BrockMaryJo sZ From: OchsLeo Sent: Monday, January 23, 2017 4:27 PM To: DLCOMM Cc: KlatzkowJeff; TeachScott; brian@brianarmstronglaw.com; YilmazGeorge; CasalanguidaNick; BrockMaryJo; BrownleeMichael; FilsonSue; GoodnerAngela; GrecoSherry; LykinsDave Subject: FW: Orange Tree Utility: Hartman Report Attachments: Hartman fernandina beach opinion.pdf; RP Orange Blossom DEveloper Agreemtn 1.pdf; Collier County-OTU Supplemental Staff Report(2).doc Importance: High Commissioners, This is a one-way communication. Please find attached a supplemental staff report related to agenda item 9.B. (orange Tree Settlement Agreement proposal) prepared by the County's outside special legal counsel. He will provide a verbal summary of this information at tomorrow's meeting. I apologize for providing this relatively late in the day,but some of this information has come to our attention only very recently. VR, Leo Leo E. Ochs,Jr. Collier County Manager leoochs@colliergov.rlet 239.252.8383 From: Brian Armstrong [mailto:brian@brianarmstronglaw.com] Sent: Monday, January 23, 2017 12:29 PM To: OchsLeo Cc: KlatzkowJeff Subject: Fw: Orange Tree Utility: Hartman Report Attached and below please find County Staff and special counsel analyses and comments regarding recent documents provided by Orange Tree Utility Co., specifically as they suggest that free connections should be bestowed upon Orangetree Associates after transfer of the Orange Tree System to the County. As always, please do not hesitate to call me or reply to this email if you have any questions. My best, Brian P. Armstrong,Esq. Law Office of Brian Armstrong, PLLC From: Brian Armstrong [mailto:brian@brianarmstronglaw.com] Sent: Thursday, January 19, 2017 1:54 PM To: YilmazGeorge; OchsLeo Cc: KlatzkowJeff Subject: Orange Tree Utility: Hartman Report Gentlemen, 1 Dr. Yilmaz has provided me a copy of the report from OTU's engineer, Gerry Hartman, purporting to address the free connections issue which OTU wishes the Board of County Commissioners to consider; and asked if I have any comments. I have several comments: 1. Mr. Hartman is the engineer who appeared on behalf of OTU at mediation and informal discussions who repeatedly represented to the County that the Orange Tree System is being operated in compliance with all permits, rules and laws. As noted in my January 4 letter, that was a misrepresentation then and is a misrepresentation now. 2. Mr. Hartman is in no way an independent expert, and I would strongly disagree with any suggestion that he is an objective expert who will provide unbiased engineering opinions for the Board's consideration. I have attached a copy of pertinent sections of a court opinion in which a trial judge expresses his opinion of Mr. Hartman's very limited credibility in a recent trial in Fernandina Beach. Assessing Mr. Hartman's credibility and candor,the Court stated as follows: Mr. Hartman "failed to forthrightly answer questions put to him;" failed "to accurately recall important events that occurred in the course of his work;" Mr. Hartman "equivocated and appeared less than candid"; and the Court's conclusion, "Mr. Hartman's failure to recall or acknowledge these significant aspects of this transaction, his failure to candidy respond to questions during cross-examination, and his demeanor in providing his testimony cause this Court to conclude that his testimony lacked complete candor and credibility." In my opinion, Mr. Hartman's findings in the report which OTU wishes the Board of County Commissioners to consider should be considered of similar limited credibility and candor. 3. Mr. Hartman fails to address the fact that OTU has collected from developers and customers more than $11.5 million while investing only$10 million in the Orange Tree System. Where has the remaining$1.5 million gone? Mr. Hartman was one of OTU's representatives suggesting to County representatives that the money was invested in utility facilities. OTU's annual reports do not support Mr. Hartman's statements. OTU has never identified where the additional $1.5 million went but it appears clear that it was not invested in utility facilities. 4. Mr. Hartman ignores the fact that OTU has not presented a single developer agreement between OTU and its developer affiliate, Orangetree Associates. It must be remembered that the developer, Orangetree Associates, is a party to the agreements and ordinances under consideration which repeatedly obligate OTU and Orangetree Associates to transfer the Orange Tree System to the County at no cost. OTU required other developers to sign developer agreements, pre-pay connection charges and even pay for utility facilities which exceeded the needs of the developer; but OTU never had Orangetree Associates even sign a developer agreement. In 2015, OTU, the utility, paid Orangetree Associates, the developer, $150,000 in management fees. No management agreement has ever been provided by OTU or Orangetree Associates justifying such a payment. 5. Mr. Hartman refers to the transfer of the Orange Tree System to the County as a "donation."This is yet another misrepresentation of the facts. The ordinances and agreements at issue repeatedly reflect the fact that OTU and its developer affiliate Orangetree Associates received development authority, increased density rights, and re-zoning of property in return for the agreement to transfer the Orange Tree System to the County at no cost. OTU and its developer affiliate Orangetree Associates have been receiving the benefit of these agreements and ordinances for decades. OTU tried to escape its obligation to transfer the Orange Tree System to the 2 County, at no cost, by suing the County. The County prevailed in that litigation and the court awarded the County its attorney's fees and costs. A similar result could be expected if the County is forced to pursue the transfer of the Orange Tree System through the pending litigation (in which it is recommended that the County also pursue the $1.5 million in connection fees collected but not invested in the utility system, costs to achieve 100%compliance, attorney's fees and other costs). 6. Mr. Hartman attempts to limit his report's analysis to "pre-paid" connection charges received by OTU since "August 20, 2015."Again,this appears to be an attempt at deception. OTU's annual reports indicate that OTU received hundreds of thousands of dollars of contributions in aid of construction, either cash or assets, in 2014 and 2015. We do not know how much OTU collected in 2016 as OTU has not filed an annual report for that year. These contributions are not necessarily"pre-paid" but also include connection charges paid by customers and others as connections are made. No limitation should be made to "pre-paid" connections. Moreover, Mr. Hartman would ignore in his analysis any consideration of lots already connected to the Orange Tree System but not currently receiving service from OTU; as well as peak system needs. In summary, Mr. Hartman's report lacks credibility and candor. OTU has over-collected cash and asset contributions of more than $1.5 million. Should free connections be made available to OTU's afffiliated developer, Orangetree Associates, the current customers of OTU and CCWSD would be forced to subsidize Orangetree Associates activities, and the transaction would not be "at no cost" to the County and its customers. As always, I am available to answer any questions which you may have in these regards. Brian P. Armstrong, Esq. Law Office of Brian Armstrong, PLLC From:YilmazGeorge<GeorgeYilmaz@colliergov.net> Sent:Thursday,January 19, 2017 12:21 PM To: Brian Armstrong Cc:TeachScott Subject: FW:Orange Tree Utility: Barraco Engineering FDEP Filing From: OchsLeo Sent: Wednesday, January 18, 2017 4:09 PM To: R. Bruce Anderson; TeachScott Cc: KlatzkowJeff; CasalanguidaNick; YilmazGeorge Subject: RE: Orange Tree Utility: Barraco Engineering FDEP Filing Will do Leo E. Ochs,Jr. Collier County Manager leoochs@colliergov.net 239.252.8383 From: R. Bruce Anderson [mailto:rbanderson@napleslaw.com] Sent: Wednesday,January 18, 2017 4:01 PM 3 To: OchsLeo; TeachScott Cc: KlatzkowJeff; CasalanguidaNick; YilmazGeorge Subject: RE: Orange Tree Utility: Barraco Engineering FDEP Filing Thanks Leo. Please send me a copy of the staff report this afternoon,since it should be final at 4:00. R. Bruce Anderson Attorney at Law CHEFFYPASSIDO?v10 Cheffy Passidomo, P.A. ATTORNEYS AT LA's 821 5th Avenue South Naples, FL 34102 (239)659-4942 direct (239)261-9300 telephone (239)261-9782 facsimile rbanderson(a�napleslaw.com www.napleslaw.com This e-mail,along with any files transmitted with it,is for the sole use of the intended recipient(s)and may contain information that is confidential or privileged.If this e-mail is not addressed to you(or if you have any reason to believe that it is not intended for you),please notify the sender by return e-mail or by telephoning us(collect)at 239-261- 9300 and delete this message immediately from your computer.Any unauthorized review,use,retention,disclosure,dissemination,forwarding,printing or copying of this e- mail is strictly prohibited.Please note that any views or opinions presented in this e-mail are those of the author and do not necessarily represent those of the law firm. From: OchsLeo [mailto:LeoOchs@colliergov.net] Sent:Wednesday,January 18, 2017 3:54 PM To:TeachScott<ScottTeach@colliergov.net>; R. Bruce Anderson<rbanderson@napleslaw.com> Cc: KlatzkowJeff<JeffKlatzkow@colliergov.net>; CasalanguidaNick<NickCasalanguida@colliergov.net>;YilmazGeorge <GeorgeYilmaz@colliergov.net> Subject: RE: Orange Tree Utility: Barraco Engineering FDEP Filing Scott, You are correct. This is my agenda item. It is complex enough without unnecessary additional backup from either party. Bruce doesn't need any help from me in representing his client's interests to the Commissioners. This deal is done. There is no need for a time certain in that the agenda is very short and this item will be heard by mid morning. Leo E. Ochs,Jr. Collier County Manager Ieoochs@colliergov.net 239.252.8383 From: TeachScott Sent: Wednesday, January 18, 2017 3:18 PM To: R. Bruce Anderson Cc: KlatzkowJeff; OchsLeo; CasalanguidaNick Subject: RE: Orange Tree Utility: Barraco Engineering FDEP Filing Bruce, I relayed your request to add the attachments your provided to the County Manager. The County Manager believes that adding those documents to the agenda item would create confusion as if it was an endorsement from staff. I don't believe there is any objection to your providing this back-up material directly to the County Commissioners. I will defer again to the County Manager on coordinating with the Chair on the possibility of setting this for a time certain. 4 As we discussed,your clients do not dispute the terms of the Agreements or the related conveyance documents they signed. The only exception your clients have to staff's recommendation to approve the settlement as provided in the Integration Agreement concerns the updated Hole Montes report; which OTU does not accept. Please let me know if this does not accurately memorialize our conversation. Scott R. Teach Deputy County Attorney Collier County, Florida Tel: (239) 252-8400 Fax: (239) 252-6300 Office of the County Attorney,3299 East Tamiami Trail,Suite 800, Naples, FL 34112 Under Florida Law,e-mail addresses are public records. If you do not want your e-mail address released in response to a public records request,do not send electronic mail to this entity.Instead,contact this office by telephone or in writing. From: R. Bruce Anderson [mailto:rbanderson@:inapleslaw.com] Sent: Wednesday, January 18, 2017 3:01 PM To: TeachScott; OchsLeo; CasalanguidaNick Subject: Orangetree Utility: Barraco Engineering FDEP Filing Importance: High Gentlemen, Also, please include the attached document in the agenda back up. How about setting a time certain for this hearing? Thanks R. Bruce Anderson Attorney at Law CHEFFY PASSIDOMO Cheffy Passidomo, P.A. ATTORNEYS AT LAW 821 5th Avenue South Naples, FL 34102 (239) 659-4942 direct (239)261-9300 telephone (239) 261-9782 facsimile rbanderson(a�napleslaw.com www.napleslaw.com This e-mail,along with any files transmitted with it,is for the sole use of the intended recipient(s)and may contain information that is confidential or privileged.If this e-mail is not addressed to you(or if you have any reason to believe that it is not intended for you),please notify the sender by return e-mail or by telephoning us(collect)at 239-261- 9300 and delete this message immediately from your computer.Any unauthorized review,use,retention,disclosure,dissemination,forwarding,printing or copying of this e- mail is strictly prohibited.Please note that any views or opinions presented in this e-mail are those of the author and do not necessarily represent those of the law firm. 5 • `y 0 IN THE CIRCUIT COURT,FOURTH • JUDICIAL CIRCUIT, IN AND FOR NASSAU COUNTY,FLORIDA CITY OF FERNANDINA BEACH, a municipal CASE NO.: 13-CA-485 corporation of the State of Florida, Plaintiff, v. STATE OF FLORIDA,and the taxpayers,property VALIDATION OF THE CITY OF owners and citizens of the City of Fernandina FERNANDINA BEACH,FLOIRDA Beach, Florida, including non-residents owning UTILITY SYSTEM REFUND property or subject to taxation therein, and others REVENUE BONDS,SERIES l(S3B,IN claiming any right,title or interest in property to be AN AGGREGATE PRINCIPAb affected by the issuance of the Series 2013B Bonds AMOUNT NOT TO EXCEED 95,000,000 herein described or to be affected in any way thereby, Defendants. ti octe FINAL JUDGMENT N I-- THIS MATTER came before the Court for trial on December 2-3, 23j.3, wt-,the • . a 1 I I Complaint for Validation filed by Plaintiff, City of Fernandina Beach (the4City"))agai9the cn taxpayers,property owners and citizens of the City, including non-residents owning property or subject to taxation therein, and all others having or claiming any right, title, or interest in property to be affected by the issuance of the City's Utility System Refunding Revenue Bonds, Series 2013B, in a principal amount not to exceed $5,000,000 (the "Series 2013B Bonds"). In addition to the City, Intervener Joanne Conlon ("Conlon") appeared at trial and opposed validation of the Series 2013B Bonds. The State of Florida, represented by the Office of the State Attorney,Fourth Judicial Circuit(the"State")appeared at trial and deferred to Conlon as to her arguments and evidence offered in opposition to validation. 35. From his testimony as described above,the Court finds that Mr. Hartman did not make an adequate determination,as required by the first prong of the Dual Rational Nexus Test, ! that there was a rational nexus between projected new customers for the water utility and the • need for additional capital facilities for the utility. The Court further finds that in setting the Impact Fees at $1,500 per ERU, Mr. Hartman did not determine that there is a rational nexus between the fee each new customer pays and the benefit the customer obtains from hooking up to the utility as required by the second prong of the Dual Rational Nexus Test. 16 36. The Court also had an opportunity to assess Mr.Hartman's credibility and candor during his testimony on both direct and cross-examination and in that regard, makes the following findings: (a) Mr. Hartman appeared forthright during questioning by counsel for the City,but on cross-examination,he repeatedly failed to forthrightly answer questions put to him by counsel for Conlon concerning his opinions and the work he performed in this matter. [E.g., Trans. at 222:24-223:19, 245:20-246:5] Eventually, the Court was required to admonish Mr. Hartman to answer the questions posed absent proper objection. [Trans. 277:2-275:1] (b) The Court observed instances of Mr.Hartman's failure to accurately recall important events that occurred in the course of his work in setting the Impact Fees. One example of this concerned an email from Daryll Parker, an employee of Mr. Hartman who had worked on the transaction to purchase the water utility. [Conlon Exhibits 76, 115] When confronted with an email in which Mr.Parker advised City officials not to include the Impact Fees calculations in Ordinance 2003-06 so as not to expose them to public scrutiny [Conlon Exhibit 76], Mr. Hartman first denied that Mr. Parker was involved in any meaningful way in the engagement relating to the purchase of the utility. [Trans., 528:17-25, 540:14-542:9, 545:19- 546:23] He also maintained that Mr. Parker overstepped his bounds by sending the email to the City Attorney and the City Manager. [Trans., 547:3-548:2] But when he was confronted with City Commission minutes 17 r showing that Mr. Parker was involved at least to the extent that he appeared before and addressed the City Commission in regard to the Impact Fees, Mr. Hartman equivocated and appeared less than candid. [Trans.,548:20-550:1] (c) A second example of Mr.Hartman's failure to accurately recall events was his denial that there was any urgency in the FPU negotiations that influenced the way in which the purchase price and terms were set. [Trans., 269:5-15] On cross-examination, Mr. Hartman denied that FPU had threatened to end the negotiations to sell the utility and to pursue its own alterative public securities offering. But later, he was confronted with his own contemporaneous correspondence to the City in which he described that very concern.[Conlon Exhibit 58 at HA1006049] (d) Mr.Hartman's failure to recall or acknowledge these significant aspects of this transaction, his failure to candidly respond to questions during cross- examination,and his demeanor in providing his testimony cause the Court to conclude that his testimony lacked complete candor and credibility. (e) One further consideration in the weight the Court gives to Mr.Hartman's testimony is that he has an interest in the outcome of this litigation. He was the lead negotiator for the City for the acquisition of this water utility in 2002-2003, he recommended the purchase price and terms which the City ultimately accepted, including the use of"futures"to fund a portion of the purchase price,and he determined the amount of the Impact Fees to fund the "futures." [Trans., 178:6-12,204:7-205:2] He also testified that 18 he has used this same "futures"concept, funded by impact fees, in other transactions. [Trans., 200:22-201:4] Consequently, the Court finds that Mr. Hartman comes to this proceeding not only as a testifying expert [Trans.,206:12-19; Conlon Exhibit 33; Conlon Exhibit 80],but also with an interest in defending his own work. The Court finds that this gives Mr. Hartman a degree of bias which adversely affects the weight of his testimony, 37. Finally, the Court notes previous positions taken by the City concerning the lawfulness of the Impact Fees, In order to support a statute of limitations defense which it asserted in the Class Action Case,the City asserted there that the ordinance imposing the Impact Fees (Ordinance 2003-06) was facially unlawful. [Conlon Exhibit 17 at 10-11] The City later changed its position in that regard after the Court ruled against it on its statute of limitations defense. [See e.g.,Conlon Exhibits 20-26] Conlon's Evidence that the Impact Fees are Unlawful 38. Conlon presented the testimony of John Guastella. Mr. Guastella is an expert in utility rates and valuation, and his experience in the setting of rates includes the proper calculation of impact fees. In contrast to Mr. Hartman, Mr. Guastella answered the questions posed to him on direct examination and on cross-examination directly and succinctly. I DEVELOPER AGREEMENT BETWEEN RP ORANGE BLOSSOM OWNER LLC AND ORANGE TREE UTILITY CO. EXHIBIT"C-1" SUBORDINATION OF INTEREST IN PROPERTY BY INTERESTED PARTIES ONE FOR EACH SUCH PARTY 30 EXHIBIT"C-2" SUBORDINATION OF INTEREST IN PROPERTY BY INTERESTED PARTIES ONE FOR EACH SUCH PARTY 31 EXHIBIT"D" CONTRIBUTIONS-IN-AID-OF-CONSTRUCTION("CIAC"),AND 01'HlR CHARGES 32 EXHIBIT"E" ASSIGNMENT OF CAPACITY TO LOT OWNERS PROCESS 33 DEVELOPER AGREEMENT THIS AGREEMENT is made and entered into this day of ,201by and between RP ORANGE BLOSSOM OWNER,LLC,el""'"Umitsdll007°p'7whose business address is 3953 Maple Ave,Suite 300.Dallas,TX 75219 referred to as 'DEVELOPER"),and ORANGE TREE UTILITY CO.,a Florida corporation:whose business address is 4500 Executive Drive Suite 110,Naples,FL 34119,(hereinafter referred to as "SERVICE COMPANY"); WITNESSETH WHEREAS, DEVELOPER owns or controls land located in Collier County, in the State of Florida,which property is more particularly described in Exhibit"A",attached hereto and made a part hereof(the Property"), and DEVELOPER intends to develop the Property by erecting residential or commercial improvements, or one of any combination of these thereon, as provided in the Development Plan attached hereto;and WHEREAS, DEVELOPER is desirous of having available to the Property SERVICE COMPANY'S central water and sewer systems so that there may be provided to the Property and the improvements to be constructed thereon from time to time and to the occupants thereof adequate water and sewer service from the central water and sewer systems of the SERVICE COMPANY;and; WHEREAS, the SERVICE COMPANY is willing to provide, in accordance with the provisions of this Agreement, central water and sewer facilities and to extend such facilities to the Property and thereafter operate such facilities so that the occupants of the improvements on the Property will receive an adequate water supply and sewage collection and disposal service from SERVICE COMPANY;and, WHEREAS, the parties hereto agree that this Developer Agreement is subject to the review and approval of the Collier County Water&Wastewater Authority. NOW THEREFORE, for and in consideration of the premises, the mutual undertakings and agreements herein contained and assumed, DEVELOPER and SERVICE COMPANY hereby covenant and agree as follows: SECTION 1, DEFINITIONS The following definitions and references are given for the purpose of interpreting the terms as used in this Agreement and shall apply unless the context indicates a different meaning: 1.01 "Property"-all the lands legally described in Exhibit"A"; 5 1.02"Development Plan"-the proposed improvements to be constructed on the Property and the anticipated time for the construction thereof as set forth in Exhibit"B"attached hereto and made a part hereof; 1.03 'Phase"-refers to a part of the Property which is being or is to be developed as a unit; 1.04"Lot or Tract" -each separate subdivided building site as platted of record or as shown on the development plan attached as part of Exhibit"B"and made a part hereof; 1.05 "Service" - the readiness and ability on the part of SERVICE COMPANY to furnish water and sewer service to each lot; 1.06 'Point of Delivery" - the point where the pipes or meters of SERVICE COMPANY are connected with the pipes of the consumer. Unless otherwise indicated,point of delivery shall be at a point on the consumer's lot line; 1.07"Consumer Installation"-all facilities on the consumer's side of the point of delivery; 1.08 "Interested Parties" - the parties executing Exhibit "C" attached hereto and made a part hereof for the purpose of subordinating their interests in the Property to this Agreement. DEVELOPER warrants that the persons executing said Exhibit"C"are all persons having an interest in the Property, other than the DEVELOPER, whether as a mortgagee, secured lien holder,tenant or otherwise. 1.09 "Contribution-in-aid-of-Construction" or "CIAC"-the sums of money designated as such and property represented by the value of a water distribution or sewage collection system constructed by DEVELOPER, which DEVELOPER agrees to contribute to SERVICE COMPANY as a contribution-in-aid-of-construction to induce SERVICE COMPANY to provide water and sewer services to the Property. 1.10"Master Plan" -Master Plan for SERVICE COMPANY'S water and sewer systems prepared by SERVICE COMPANY or SERVICE COMPANY'S Engineers,as amended or modified from time to time. 1.11 "Equivalent Residential Connection" or "ERC" - the estimated average daily flow for a single-family residential unit which for all purposes of this Agreement shall be computed at three hundred fifty(350)gallons per day(gpd)for water service and two hundred eighty(280)gallons per day(gpd)for sewer service. 1.12 "Utility Facilities" -unless otherwise described herein, shall mean the water distribution mains, hydrants, services, meters, and related appurtenances and equipment; wastewater collection mains, laterals, services, pumping stations, and related and appurtenances and equipment; and reclaimed water mains, services, meters, and related appurtenances and equipment. 6 1.13 "Connection Point" -means that point in SERVICE COMPANY'S existing utility system where the DEVELOPER will be allowed to connect its on-site or off-site facilities. 1.14 "Reclaimed Water" -water produced by the proper treatment of wastewater effluent such that it may be used for irrigation or other specified non-potable uses. SECTION 2. EASEMENTS 2.01 Grant of Easements. DEVELOPER hereby grants and gives to SERVICE COMPANY,its successors and assigns,subject to the terms of this Agreement,the exclusive right or privilege to construct, install,own,maintain, expand and operate the Utility Facilities in,under,upon, over and across the Property to serve the Property; and to provide service to the property of others in accordance with the Master Plan of SERVICE COMPANY, an exclusive right or privilege to construct, install, own, maintain, repair and operate said Utility Facilities in, under, upon, over and across the present and future streets,roads,terraces,alleys,easements,reserved utility strips and utility sites,and any public place or common area as provided for,dedicated to,or otherwise available for public use, whether or not provided for in any plats, agreements, dedication or grants of record("Easement and Access Ways". Nothing contained herein shall be construed as granting an interest in any publicly owned property by DEVELOPER nor shall this grant in any manner be deemed as diminishing or restricting SERVICE COMPANY'S right to the use of any such publicly owned property. SERVICE COMPANY may demand that the DEVELOPER grant or obtain easements for installation of the Utility Facilities even when parallel public rights of way exist so long as supported by approved engineers plans. 2.02 Rights of Ingress and Egress. The foregoing grants include the necessary right of ingress and egress over Easement and Access Ways to any part of the Property upon which SERVICE COMPANY is constructing,operating or maintaining such Utility Facilities;the foregoing grants shall be for such period of time as and to the fullest extent that SERVICE COMPANY or its successors or assigns require such rights,privileges or easements in the construction,ownership, maintenance,operation,repair or expansion of the Utility Facilities. 2.03 Private.Property Installations, In the event Utility Facilities are to be installed in lands within or without the Property,in areas outside of streets and public ways,then DEVELOPER or the owner shall grant to SERVICE COMPANY, without cost to SERVICE COMPANY, the necessary easement or easements for such private property installation by express grant; provided,all such private property installations shall be made in such manner as not to interfere with the then primary use of such private property as represented by DEVELOPER herein. 2.04 Errors in Line Locations. SERVICE COMPANY and DEVELOPER will use due diligence in ascertaining all easement locations; however, should SERVICE COMPANY or DEVELOPER install any of its facilities outside a dedicated easement area, SERVICE COMPANY will not be required to move or relocate any facilities lying outside a dedicated casement area, or private easement area conveyed by express grant, so long as the facilities do not interfere with the then or proposed use of the area in which the facilities have been installed, 7 . i ensure that as-built lines were constructed within easements; c) as-builts (with easements) on "Auto-CAD" disk, layered per utility specifications;d)three(3) sets of all appropriate manuals for operation of any pumping stations and other mechanical and electrical equipment installed by DEVELOPER, as applicable; e)the results of bacteriological tests of the installed potable water lines approved by the appropriate regulatory agency; and,f)the written results of pressure tests of all mains, services and laterals to be pressurized when in service, and a CD format tape showing sewer main TV inspections. After inspection and acceptance, SERVICE COMPANY agrees to accept and maintain each phase of on-site construction as it is completed by DEVELOPER, except for consumer installations which are not the responsibility of SERVICE COMPANY, as hereinafter provided. DEVELOPER shall indemnify and hold SERVICE COMPANY harmless from and in respect of any repairs or replacements required to be made to said water and sewer facilities conveyed by DEVELOPER to SERVICE COMPANY which occur within one(1) year from the date of the conveyance of such water and sewer facilities from DEVELOPER to SERVICE COMPANY Simultaneously, with the conveyance of the water and sewer facilities described above from DEVELOPER to SERVICE COMPANY, the DEVELOPER shall deliver to SERVICE COMPANY an executed Contract Bond in the total amount of the actual cost of construction of said water and sewage facilities. The Contract Bond shall have as the surety thereon, such surety company as is authorized to write bonds of such character and amount in accordance with the laws of the State of Florida. The attorney-in-fact, or other officer who signs such Contract Bond for a surety company shall file with such Bond a certified copy of his Power of Attorney authorizing him to do so. The Contract Bond may be written either with the DEVELOPER'S Contractor as "principal" and the DEVELOPER and SERVICE COMPANY as "co-obligees" or, in the alternative, with the DEVELOPER as "principal" and the SERVICE COMPANY as "co-obligee" The Contract Bond shall remain in force for one (1) year following the date of final acceptance by SERVICE COMPANY of the work done pursuant to this Agreement to protect the SERVICE COMPANY against losses resulting from any and all defects in materials or improper performance of that work and with regard to the DEVELOPER'S indemnity of SERVICE COMPANY as provided above during that one(1)year period. Upon demand by the SERVICE COMPANY,the DEVELOPER shall correct or cause to be corrected all such defects which are discovered within said warranty period or periods as set forth above, failing which SERVICE COMPANY shall make such repairs and/or replacements of defective work and/or materials and the DEVELOPER and/or its surety shall be liable to SERVICE COMPANY for its costs arising therefrom. 4.03 Meter Installatio s DEVELOPER shall be required to pay the applicable charge (as set by SERVICE COMPANY from time to time) for water meters and meter installations of sufficient capacity for all single-family, residential, multi-family, mobile home, commercial installation or any other connection requiring a measuring device. 4.04 Inspection of Work. During the construction of the water distribution and sewage collection systems by DEVELOPER, DEVELOPER'S engineer shall inspect the proper installation of Utility Facilities by the contractor, and when construction is completed, shall supervise the standard tests for pressure, exfltration, line and grade, and all other normal engineering tests to determine that the system has been installed in accordance with the plans and specifications,good engineering practices and SERVICE COMPANY'S written requirements for said testing. SERVICE COMPANY shall have the right, but is not obligated to review and 10 observe such installations and testing to determine compliance with the plans and specifications. SERVICE COMPANY shall not supervise the construction or control the quality of the installation,and shall not be deemed to have done so by its conduct of observing and reviewing the installation and testing. DEVELOPER'S engineer shall coordinate at least one (1) preconstruction meeting with SERVICE COMPANY, and shall coordinate all testing dates with SERVICE COMPANY. DEVELOPER agrees to pay to SERVICE COMPANY, or SERVICE COMPANY'S authorized agent,a reasonable sum to cover the cost of inspection of installations made by DEVELOPER or DEVELOPER'S contractor, which charge shall be uniform and consistent with such charges made by SERVICE COMPANY to others. DEVELOPER shall place a deposit in the amount of$5,000 at the time the construction plans are submitted for review by SERVICE COMPANY. 4.05 Transfer of Title. Prior to the rendering of service by SERVICE COMPANY, DEVELOPER shall convey to SERVICE COMPANY, by itemized bill of sale, in form satisfactory to SERVICE COMPANY'S counsel, the Utility Facilities as constructed by DEVELOPER and approved by SERVICE COMPANY, free and clear of all liens or encumbrances of any form. DEVELOPER shall execute any and all documents necessary to ensure that the Utility Facilities are free and clear of all said liens or encumbrances to the satisfaction of SERVICE COMPANY'S legal counsel. DEVELOPER shall further cause to be conveyed to SERVICE COMPANY all easements and/or tights-of-way covering areas in which water and sewer lines are installed, by recordable document in form satisfactory to SERVICE COMPANY'S counsel. DEVELOPER agrees to grant all real property utilized for wastewater pumping stations by warranty deed in a form acceptable to SERVICE COMPANY.Proof of title may be required or obtained by SERVICE COMPANY at DEVELOPER'S expense. The use of easements granted by DEVELOPER shall not preclude the use by other utilities of these easements,such as for cable television,telephone or gas utilities. SERVICE COMPANY agrees that the acceptance of the water distribution and sewage collection systems installed by DEVELOPER,or acceptance of the bill of sale, shall constitute the assumption or responsibility by SERVICE COMPANY for the continuous operation and maintenance of such systems from that date forward, subject, however, to the one (1) year indemnity of DEVELOPER and the surety provided for in Paragraph 4.02 above. Mortgagees, if any, having prior liens on such property, or other interested parties, as applicable, shall be required to release such liens, subordinate their position or join in the grant or dedication of the casements or rights-of-way,or give to SERVICE COMPANY assurance by way of a"non-cut-off agreement",that in the event of a foreclosure, mortgagee would continue to recognize the easement rights of SERVICE COMPANY and the other tights of SERVICE COMPANY under this Agreement, as long as SERVICE COMPANY complies with the terms of this Agreement. All Utility Facilities,except consumer installations, shall be covered by casements or rights-of-way if not located within platted or dedicated roads or rights-of-way with SERVICE COMPANY'S express written approval. The Developer or Contributor's cost records should be in sufficient detail so that the Service Company can determine the description of each item being contributed, together with the cost related thereto paid for by the Developer or Contributor. Said cost shall include, but not be limited to, fees for permits and costs incurred in connection with inspection, installation, analysis,testing,insurance,legal work or engineering. 11 for that which may be specifically provided for in Exhibit "D" or if an over-payment, nor shall SERVICE COMPANY pay any interest or rate of interest upon such sums. Neither DEVELOPER nor any person or entity holding any of the Property by, through or under DEVELOPER, or otherwise, shall have any present or future right, title, claim or interest in and to the contributions or to any of the water or sewer facilities and properties of SERVICE COMPANY, and all prohibitions applicable to DEVELOPER with respect to no refund of any such charges or contributions, no interest payment on said charges or contributions and otherwise, are applicable to all persons or entities, except for that which may be provided in Exhibit"D". Any user or consumer of water or sewer service shall not be entitled to offset any bill or bills rendered by SERVICE COMPANY for such service or services against the contributions or charges. DEVELOPER shall not be entitled to offset the contributions or charges against any claims or claims of SERVICE COMPANY. SECTION 8, DISPOSITION OF CAPACITY The water and sewer system capacity allotment assigned to DEVELOPER herein cannot, and shall not, be assigned, transferred, leased, encumbered or disposed of in any manner by DEVELOPER,unless: (a) DEVELOPER has obtained the prior written consent of SERVICE COMPANY to such an assignment,sale or disposition,or (b) The assignment is in direct connection with a bona fide sale of the Property to which the system capacity reserve relates, and SERVICE COMPANY is notified in writing of such assignment and has consented to same. SERVICE COMPANY will not unreasonably withhold its consent to an assignment made in direct connection with a bona fide sale of the Property nor any other assignment made within six (6) years of the date of this Agreement, provided the Assignee shall: (1) If SERVICE COMPANY shall so require, enter into a new Development Agreement with SERVICE COMPANY whereby SERVICE COMPANY shall reserve for such Assignee the unused capacity reserved for the Assignor hereunder in accordance with the terms and conditions of SERVICE COMPANY'S Service Availability Policy and tariffs then in effect; or (ii) If a new Development Agreement is not entered into between such Assignee and SERVICE COMPANY,Assignee assumes all of the duties and obligations of the Assignor under this Agreement;and (iii) Pay all of SERVICE COMPANY'S legal and administrative costs incurred in connection with such new Development Agreement or the Assignment,as applicable. 13 (c)With respect to sales of lots to home builders,the assignment and disposition of water and sewer system capacity shall be handled in a manner similar to that set forth on Exhibit E. In no instance shall any sale or assignment of system capacity reserved be made by DEVELOPER for a consideration which is more than that amount actually paid by DEVELOPER to reserve the capacity. In all � Erequest,� hall provide to SERVICE COMPANY, at SERVICE A copies of all documents and such other information pertaining to or affecting such transfer as SERVICE COMPANY shall reasonably request. In the event that SERVICE COMPANY has existing capacity at its treatment plants to provide service to all persons including DEVELOPER who have contracted and paid for same in the order of their developer agreement date of execution. SERVICE COMPANY shall not diminish or utilize the water and sewer capacity allotment assigned to DEVELOPER hereunder by providing water and sewer capacity to other developers or customers, without the prior written consent of the DEVELOPER, unless such other developers or customers provide to SERVICE COMPANY or there are otherwise available to SERVICE COMPANY sufficient funds to pay the costs to SERVICE COMPANY of providing water and sewer treatment facilities to replace the water and sewer treatment facilities so utilized by such other developers or customers and SERVICE COMPANY has received approval by all governmental agencies having jurisdiction over such facilities to the construction of such facilities and the anticipated completion date for the construction of such facilities shall meet the DEVELOPER'S requirements (including Developer's timing needs) for water and sewer services as provided for in its Development Plan attached hereto. Except as hereinafter extended by SERVICE COMPANY in writing, failure of DEVELOPER, or its permitted assigns as provided above,to fully utilize the water and sewage treatment capacity reserved by SERVICE COMPANY hereunder for DEVELOPER on or before the expiration of fifteen(15)years from the date of this Agreement shall result in the release by DEVELOPER of such water and sewage treatment capacity and all obligations of SERVICE COMPANY to DEVELOPER in respect thereof shall be thereby null and void and of no further force or effect. SERVICE COMPANY shall be under no obligation whatsoever to refund to DEVELOPER any portion of the water and sewer capacity charges or other charges paid by DEVELOPER to SERVICE COMPANY under this Agreement. SECTION 9. ASSURANCE OF TTTLE TO PROPERTY Simultaneously with the execution of this contract, at the expense of DEVELOPER, DEVELOPER shall deliver to SERVICE COMPANY an opinion of title from a qualified attorney-at-law, with respect to the Property,which opinion shall include a current report on the status of the title,setting out the name of the legal title holders,the outstanding mortgages,taxes, liens,tenancies or parties in possession and other covenants affecting the subject Property. The provisions of this paragraph are for the purpose of evidencing DEVELOPER'S legal right to grant the exclusive rights of service,easements,warranty deeds for pumping station property and lien rights contained in this Agreement. 14 (e) if the DEVELOPER does not comply with the foregoing inspection provisions, SERVICE COMPANY may refuse service to a connection that has not been inspected until DEVELOPER complies with these provisions; (f) the cost of constructing,operating,repairing or maintaining consumer installations Qhcll be that of DEVELOPER or others than SERVICE COMPANY. SECTION 15, BINDING AGREEMENT ON SUCCESSORS This Agreement shall be binding upon and shall inure to the benefit of DEVELOPER, SERVICE COMPANY and their respective successors and assigns. SECTION 16, NOTICE Until further written notice by either party to the other,all notices provided for herein shall be in writing and transmitted by hand delivery by messenger service, by certified mail, return receipt requested,or by telegram to its address stated above. SECTION 17, MATERIAL CHANGE Should the Property either: (a) be subject to a change of zoning;or (b) be sold to a new developer,or (c) be subjected to such other change which would require greater water or sewer treatment capacity, greater effluent disposal, greater fire flows, or additional Utility Facilities, or increased usage of the Utility Facilities as designed and approved pursuant to the engineering plans and specifications which are the subject of this Agreement,then DEVELOPER shall enter into a new Agreement with SERVICE COMPANY, if service is available,providing for such additional water and sewer capacity requirements and for the construction of such additional Utility Facilities meeting all governmental design requirements then applicable and subject to the limitations of SERVICE COMPANY'S then existing water and sewer treatment, disposal and collection commitments and limitations and shall pay all additional capacity charges as shall be authorized then by the SERVICE COMPANY'S tariff or the Public Service Commission or its successors as of the date said new Agreement is executed. SECTION 18. FORCE MAJEURE SERVICE COMPANY shall not be liable or responsible to DEVELOPER by reason of the failure or inability of SERVICE COMPANY to take any action it is required to take or to comply with the requirements imposed hereby or for any injury to DEVELOPER or by those claiming by 17 or through DEVELOPER, which failure, inability or injury is caused directly or indirectly by force majeure as hereinafter set forth. The term"force majeure"as employed herein shall mean acts of god, strikes, lock-outs or other industrial disturbance; acts of public enemies, war, blockades, riots, acts of armed forces, militia, or public authority, epidemics; breakdown of or damage to machinery, pumps or pipe lines, landslides, earthquakes, droughts, fires, storms, floods, or washouts; arrests, title disputes, or other litigation; governmental restraints of any nature whether federal, state,county,municipal or otherwise,civil or military,civil disturbances; explosions, failure or inability to obtain necessary materials, supplies, labor or permits or governmental approvals whether resulting from or pursuant to existing or future rules, regulations,orders,laws or proclamations whether federal,state,county,municipal or otherwise, civil or military-, or by any other causes, whether or not of the same kind as numerated herein, not within the sole control of SERVICE COMPANY and which by exercise of due diligence SERVICE COMPANY is unable to overcome. In the event of any claim of force majeure by Service Company, Service Company shall inform Developer of such claim within ten days of Service Company becoming aware of the claim. SECTION 19. RIGHT OF REFUSAL SERVICE COMPANY shall have the right to refuse to provide service and the right to terminate service to any lot, building or other improvement within DEVELOPER'S Property, or in lieu thereof; SERVICE COMPANY may delay the provision of any such service to any lot, building or other improvement upon the Property pending compliance by DEVELOPER of its obligations as provided for in this Agreement, and the right to terminate this Agreement in the event DEVELOPER fails to comply with any of the terms and conditions of this Agreement in a timely manner. The exercise of the rights of SERVICE COMPANY as provided in this paragraph shall be subject however to the rules and regulations of SERVICE COMPANY and governmental agencies having jurisdiction or regulatory power over the services and facilities of SERVICE COMPANY. SECTION 20. NOTICE OF TRANSFER DEVELOPER agrees to provide proper written notice to SERVICE COMPANY of the actual date of the legal transfer of the Property or any portion thereof involving or otherwise affecting the provision of water or sewer services from DEVELOPER to any third party. DEVELOPER shall remain responsible for all costs and expenses, including utility bills,which arise as a result of DEVELOPER'S failure to so notify SERVICE COMPANY or any improper notification to SERVICE COMPANY in connection therewith. SECTION 21, SURVIVAL OF COVENANTS The rights, privileges, obligations and covenants of DEVELOPER and SERVICE COMPANY shall survive the completion of the work of DEVELOPER with respect to any phase and to the Property as a whole. SECTION EFFECT OF THIS AGREEMENT ON PRIOR AGREEMENTS AND METHOD OF 18 AMENDMENT This Agreement supersedes all previous agreements or representations,either verbal or written,heretofore in effect between DEVELOPER and SERVICE COMPANY,made with respect to the matters herein contained,and when duly executed constitutes the entire Agreement between DEVELOPER and SERVICE COMPANY. No additions,alterations or variations of the terms of this Agreement shall be valid nor provisions of this Agreement be waived be either party,unless such additions, alterations, variations or waivers are expressed in writing and duly signed. SECTION23. LAWS OF FLORIDA TO QOVERN This Agreement shall be governed by the laws of the State of Florida and it shall be and become effective immediately upon execution by both parties hereto,subject to any approvals which must be obtained from governmental authority,if applicable. SECTION 24. TABLE OF CONTENTS AND SECTION J1$ADINGS FOR CONVENIENCE ONLY The Table of Contents and section headings used in this agreement are for convenience only and have no significance in the interpretation of the body of this Agreement,and the parties hereto agree that they shall be disregarded in construing the provisions of this Agreement. SECTION 25. RECOVERY OF COSTS AND FEES In the event the SERVICE COMPANY or DEVELOPER is required to enforce this Agreement by court proceedings or otherwise,then the prevailing party shall be entitled to recover from the other party all costs incurred,including reasonable attorneys'fees,whether incurred prior to,during or subsequent to such court proceedings on appeal. SECTION 26. AUTHORITY Execution hereof is duly authorized and approved and this Agreement is binding upon the parties hereto without further corporate acts. 19 SECTION 27. DOCUMENT IS THE RESULT OF MUTUAL DRAFTSMANSHIP. The terms and conditions in this Agreement are the product of mutual draftsmanship by both parties,each being represented by counsel,and any ambiguities in this Agreement or any documentation prepared pursuant to it shall not be construed against any of the parties because of authorship.The parties acknowledge that all the terms of this Agreement were negotiated at arms's length,and that each party,being represented by counsel,is acting to protect its,his,her, or their own interest. IN WITNESS WHEREOF,DEVELOPER and SERVICE COMPANY have executed or have caused this Agreement,with the named Exhibits attached,to be duly executed in several counterparts,each of which counterpart shall be considered an original executed copy of this Agreement DEVELOPER V4p.S ': , RP ORANGE B SOM OWNER LLC • By4. : S' t .._ .sem. r1....1 B S' Ron J. oy ,Via President � (f�tv T e or Print N u i-fz. .x.� (Mcc CrCr A-- Type or Print Name STATEOF� `� ) COUNTY OFD t c fes' ) The foregoing instrument was acknowledged before me this acI day of A� a D((0 ,by Ron I.Hoyl V e ,on behalf of RP orange Blowout Omer,IX.He/She is personally known t/ _ OR Produced Identification . Type of Identification Produced: Signature of Notary: (;). ISA KBEAYANSPridedsr.o��ednameerNotary My Commisrion Expires: � Nt7GRY PUBIC EMIT OF WAS MY COMM.tm osi nia 20 SERVICE COMPANY WITNESSES: ORANGE TREE UTILITY CO.,a Florida Corp s ation kt) By: j Sign Name Rob • Bollt,President 9‘1 l c-V__ 51,--0 _le.. Type or Print Name Aimaliallihom."02' Siva ane Type or Print Name STATE OF FLORIDA ) COUNTY OF ) The foregoing instrument was acknowledged before me this /1-t; day of 56-W , APS , by Roberto Bollt as President of Orange Tree Utility Co.,a Florida corporation,on behalf of the corporation.He/she is personally known k O red . Type of Iden 1/ Signature of Notary: tc Lvvy1at.i Pvt cc 'll^ll�Xil,– Efe fj1• ''• IA'((� NIS pih d gimped tame of Notary w' tilic)RHT°FF 963583—t4 S:Juna�Wim. ' _._�—_. ISI II My Commission Expires: Document Prepared By: Gerald T.Buhr Buhr&Associates,P.A. P.O.Box 1657 Lutz,Florida 33548-1657 21 EXHIBIT"A" LEGAL DESCRIPTION Parcel in Section 13,Township 48 South,Range 27 East, Collier County,Florida A tract or parcel of land lying in Section 13,Township 48 South, Range 27 East,Collier County, Florida,said tract or parcel being more particularly described as follows: Beginning at the Northerly most corner of Tract "A-2" of the record plat of `ORANGE BLOSSOM RANCH PHASE 1A"as recorded in Plat Book 45,Pages 58- 61 of the Public Records of Collier County, Florida run Southeasterly along the Easterly line of said Tract"A-2"and along an arc of a curve to the right of radius 1.34o.00 feet(delta 11°36'44') (chord bearing S2.2°23'34"E) (chord 271.11 feet) for 271.58 feet to a point of a radial line;thence run S73°24'48"W for 90.00 feet to a point on a radial curve and an intersection with the Westerly line of said Tract "A-2°; thence run Northerly along an arc of a curve to the left of radius 1,250.00 feet(delta 03°44'48")(chord bearing N18°27'36"W)(chord 81.72 feet) for 81.74 feet; thence run S69°4o'oo"W along a radial line for 152.50 feet to a point on a radial curve;thence run Southerly along an arc of a curve to the right of radius 1,097.50 feet (delta o6°20'oo") (chord bearing S17°lo'oo"E) (chord 121.25 feet)for 121.31 feet;thence run S76°oo'oo"W along a radial line for 45.00 feet to a point on a radial curve;thence run Northerly along an arc of a curve to the left of radius 1.052.50 feet(delta o8°24'oo") (chord bearing N18°12,'oo"W) (chord 154.17 feet)for>54.3o feet;thence ran S67°36'oo"W along a radial line for 142.51 feet to a point on a non-tangent curve;thence run Southwesterly along an arc of a curve to the right of radius 30.00 feet(delta uo°28'27")(chord bearing S34°16'3="W)(chord 49.29 feet)for 57.84 feet to a point of tangency thence run S89°30'46"W for 803.22 feet to a point of curvature;thence run Northwesterly along an arc of a curve to the right of radius 30.00 feet(delta 90 oo'oo")(chord bearing N45°29'14"W) (chord 42.43 feet)for 47.12 feet to a point of tangency; thence run Noo°29'14"W for 50.89 feet to a point of curvature; thence run Northeasterly along an arc of a curve to the right of radius 30.00 feet (delta 90°00'00") (chord bearing N44°30'46"E) (chord 42.43 feet) for 47.12 feet to a point of tangency; thence run N89°3o'46"E for 296.02 feet to a point of curvature;thence run Easterly along an arc of a curve to the left of radius 365.00 feet (delta 07°05'46') (chord bearing N85°57'53"E)(chord 45.18 feet)for 45.20 feet;thence run No7°30421'W along a radial line for 142.50 feet to a point on a radial curve;thence run Westerly along an arc of a curve to the right of radius 222.50 feet(delta 07°05'46")(chord bearing M5'57'53"W)(chord 27.54 feet)for 27.56 feet to a point of tangency;thence run S89°30'46"W for 35.10 feet;thence run Noo°29'14"W for 45.00 feet;thence run N89°30'46"E for 35.10 feet;thence run Noo°29'14"W for 142.50 feet;thence run 889°30'461V for 296.02 feet to a point of curvature;thence run Northwesterly along an arc of a curve to the right of radius 30.00 feet (delta 90°00'00") (chord bearing N45°29'14"W) (chord 42.43 feat) for 47.12 feet to a point of tangency; thence run Noo°29'14"W for 109.91 feet to a point of curvature; thence run Northeasterly along an arc of a 22 • DESCRIPTION(CONTINUED) curve to the right of radius 30.00 feet (delta 90°50'28") (chord bearing N44°56'00"E)(chord 42.74 feet)for 47.56 feet to a point of compound curvature; thence run Easterly along an arc of a curve to the right of radius 910.00 fleet (delta o6°06'31") (chord bearing S86°35'30"E) (chord 96.97 feet)for 97.02 feet; thence run No6°27'45•E along a radial line for 142.50 feet to a point on a radial curve; thence run Westerly along an arc of a curve to the left of radius 1,052.50 feet(delta o4°27'45") (chord bearing N85°46`o8"W) (chord 81.95 feet)for 81.97 feet; thence run No:°00'00"E along a radial line for 45.00 feet to a point on a radial curve; thence run Easterly along an arc of a curve to the right of radius 1,097.50 feet (delta 05°00'52") (chord bearing S85°29'34"E) (chord 96.02 feet) for 96.05 feet to a point of reverse curvature;thence run Northeasterly along an arc of a curve to the left of radius 25.00 feet (delta 87°34'29") (chord bearing N53°13'38"E)(chord 84.60 feet)for 3821 feet to a point of tangency;thence run No9°26'23"E for 102.58 feet to a point of curvature; thence run Northwesterly along an arc of a curve to the left of radius 25.00 feet(delta 92°13T2o") (chord bearing N36°40'17"W)(chord 36.03 feet)for 40.24 feet to a point of cusp;thence run Southeasterly along an arc of a curve to the right of radius 1,250.00 feet (delta 43°54'21")(chord bearing S6o°49'47E)(chord 934.61 feet)for 957.87 feet; thence rim N56°05400"E along a non-radial line for 90.32 feet to a point on a non-radial curve;thence run Northwesterly along an arc of a curve to the left of radius 1,340.00 feet (delta 40°01'24") (chord bearing N58°33'16"W) (chord 917.12 feet) for 936.04 feet to a point of reverse curvature; thence run Northwesterly along an arc of a curve to the right of radius 25.00 feet (delta 88°00'21") (chord bearing N34°33'47"111 (chord 34.73 feet) for 38.40 feet to a point of tangency; thence run Nog°26'23"E for 74.00 feet to a point of curvature: thence run Northerly along an arc of a curve to the left of radius 52.2.,5o feet (delta o9°55'38") (chord bearing No4°28'34"E) (chord 90.42 feet)for 90.53 feet to a point of tangency; thence run NOo°29'14"W for 303.85 feet; thence run N89°3o 46"E for 675.65 feet; thence run Noo°29'14"W for 187.50 feet; thence run N89°30'46'E for 18.93 feet to a point of curvature;thence run Easterly along an arc of a curve to the right of radius 322.50 feet(delta 12°41'14")(chord bearing S84°08'37"E) (chord 71.27 feet) for 71.41 feet; thence run N12°1.2'00"E along a radial line for 142.50 feet to a point on a radial curve;thence run Westerly along an arc of a curve to the left of radius 465.00 feet(delta 12°41'14")(chord bearing N84°o8'37"W) (chord 102.76 feet) for 102.97 feet to a point of tangency;thence run S89°30'46"W for 522.o8 feet to a point of curvature; thence run Northwesterly along an arc of a curve to the right of radius 30.00 feet (delta 90°00'00") (chord bearing N45°29'14'W) (chord 42.43 feet) for 47.12 feet to a point of tangency;thence run Noo°29'14"W for 92.85 feet to a point of curvature; thence run Northeasterly along an arc of a curve to the right of radius 30.00 feet (delta 90002'20(chord bearing N44°31'56"E)(chord 42.44 feet)for 47.14 feet to a point of tangency; thence run N89°33'o71E for 1,003.50 feet to a point of curvature;thence run Southeasterly along an arc of a curve to the right of radius 30.00 feet(delta 89°56'45") (chord bearing S45°28'31"E) (chord 42.41 feet) for 47.10 feet to a point of tangency; thence run Soo°3o'o8'E for 294.29 feet to a 23 DESCRIPTION(CONTINUED) point of curvature; thence run Southerly along an arc of a curve to the right of radius 135.00 feet (delta 37°10'18") (chord bearing 318°o5'oo"W) (chord 86.o6 feet)for 87.58 feet to a point of compound curvature; thence run Southwesterly along an arc of a curve to the right of radius 30.00 feet(delta 26°30'061 (chord bearing S49°55'2.2"W) (chord 13.75 feet)for 13.88 feet;thence run S47°32'00"E along a non-radial line for 144.97 feet to a point on a radial curve; thence run Northeasterly along an arc of a curve to the left of radius 2.77.50 feet (delta 11°281o0")(chord bearing N36°44'00"E)(chord 55.44 feet)for 55.54 feet;thence run S59°oo'oo"E along a radial line for 45.0o feet to a point on a radial curve; thence run Southwesterly along an arc of a curve to the right of radius 32:.50 feet (delta 15°49'271 (chord bearing S38°54'43"W)(chord 88.79 feet)for 89.07 feet; thence run S43°10'33"E along a radial line for 142.50 feet to a point on a radial curve; thence run Northeasterly along an arc of a curve to the left of radius 465.00 feet (delta 47°19'35°) (chord bearing N23°09`39"E) (chord 373.26 feet) for 384.09 feet to a point of tangency;thence run Noo°3o'o8"W for 1,029.35 feet to a point of curvature;thence run Northeasterly along an arc of a curve to the right of radius 25.00 feet(delta 90°03'15")(chord bearing N44°31'29"E) (chord 35.37 feet) for 39.29 feet to a point of tangency; thence ran N89°33`o7"E for 65.00 feet to a point of curvature; thence run Southeasterly along an arc of a curve to the right of radius 25.00 feet (delta 89°56'451 (chord bearing S45°28'311E) (chord 35.34 feet)for 39.25 feet to a point of tangency;thence run Soo°30'08"E for 786.24 feet; thence run N89°29'52"E for 33o.00 feet; thence run Noo°3o'o8"W for 495.45 feet to a point of curvature; thence run Northeasterlyalongan arc of a curve to the right of radius 30.00 feet (delta go°0315") (chord bearing N44°3.t'29"E) (chord 42.45 feet) for 47.15 feet to a point of tangency;thence run N89°33'07"'E for 55.00 feet to a point of curvature; thence run Southeasterly along an arc of a curve to the right of radius 30.00 feet (delta 89°56'45")(chord bearing S45°28'31"E)(chord 42.41 feet)for 47.10 feet to a point of tangency; thence run Soo°30'086E for 1,147.29 feet to a point of curvature; thence run Southerly along an arc of a curve to the right of radius 30.00 feet(delta 44°42'21") (chord bearing S21°51'02"W) (chord 22.82 feet)for 23.41 feet; thence run S45°4747"E along a radial line for 19.83 feet; thence run Soo°3o'o8"E for 137.14 feet;thence run N89°29'52''E for 207.09 feet;thence run S0O°30108"E for 45.00 feet;thence run S89°29'S3"W for 215.29 feet to a point of curvature; thence run Southwesterly along an arc of a curve to the left of radius 25.00 feet (delta 90°00100")(chord bearing 544°29'52"W)(chord 85.36 feet)for 39.27 feet to a point of tangency; thence run Soo°30'08"E for 18.38 feet to a point of curvature; thence run Southerly along an arc of a curve to the right of radius 112.50 feet (delta 24015108') (chord bearing Sn°87126"W) (chord 47.26 feet)for 47.62 feet; thence run S51°21'o0"E along a non-tangent line for 172.75 feet to a point on a non-tangent curve and an intersection with the Northerly line of said record plat of `ORANGE BLOSSOM RANCH PHASE iA'; thence run along the Northerly line of said record plat the following three (3) courses: Southwesterly along an arc of a curve to the right of radius 227.5o feet (delta 60°32144x)(chord bearing S59°15'061W)(chord 229.87 feet)for 240.40 feet to a 24 DESCRIPTION(CONTINUED) point of tangency S89°31'28" W for 195.00 feet to a point of curvature and Northwesterly along an arc of a curve to the right of radius 227.50 feet (delta 61°58'01")(chord bearing N59°39'32"W)(chord 234.23 feet)for 246.05 feet to a point on a non-tangent curve;thence run Southwesterly along an arc of a curve to the left of radius 335.0o feet (delta o3°06'47") (chord bearing S55°55'56"W) (chord 18.20 feet)for 18.20 feet to a point of tangency;thence run S54°22'321W for 184.36 feet to a point on a non-tangent curve and au intersection with said Northerly line of said record plat; thence ruu along said Northerly line of said record plat the following two(2)courses:Southwesterly along an arc of a curve to the right of radius 617.50 feet (delta 14°46'28") (chord bearing S46°08'43"W) (chord 158.76 feet) for 159.20 feet to a point of tangency and S53°31I52'W for 323.67 feet;thence run N35°37'28"W for 27.50 feet;thence run S54°22'32'W for 178.06 feet to a point on a non-tangent curve;thence run Southeasterly along an arc of a curve to the right of radius 1,340.00 feet(delta 01°174581(chord bearing S28°5o1S5"E)(chord 33.39 feet)for 30.39 feet to the POINT OF BEGINNING. Containing 71.26 acres,more or less. Bearings hereinabove mentioned are State Plane for the Florida East Zone(1983/NSRS 2007) and are based on the Northwesterly line of the Tract "L-3" of the record plat 'ORANGE BLOSSOM RANCH PHASE iA",as recorded in Plat Book 45,Page 58,of the Public Records of Collier County,Florida,to bear S54°22'32"W. 25 11 DEVEL©PMENThA�PLY■IAA,N FOR PROPERTY (See attached pages] 27 .. PHASE 20 ............., PHASE'2A A..,.,,, 2 PHASE 2B — IL ._ ..- . , ' i _ wn iI 1 1 1 I I 1 j 1 j 1 28 Bike , M' QRA r1 .uL0.tiV. ^VYl1M 1V1n MINN 11111�1A1s 29 • k31 1T"C-1" SUBORDZIATION OF INTEREST IN PROPERTY BY INTERESTED PARTIES ONE FOR EACH SUCH PARTY The undersigned as an inducement for SERVICE COMPANY to enter into this Developer Agreement with DEVELOPER, does hereby join in the execution of this Developer Agreement for the purpose of subordinating each and every interest of the undersigned here in and to that real property more particularly described in Exhibit"A"attached hereto and made a part hereof to the rights of SERVICE COMPANY as provided for herein. WITNESSES: Now of Compurfi BY Sign Name Type or Print Name As: Sign Name 'Iypeanoint Etle Type or Print Name STATE OF FLORIDA ) COUNTY OF ) The foregoing instrument was acknowledged before me this day of, by as of , He/she is personally known OR Produced Identification . Type of Identification Produced: Signature of Notary: Pitied or Nuupd roe of Homy My Commission Expires: 30 EXHIBIT"C-2" SUBORDINATION OF INTEREST IN PROPERTY BY INTERESTED PARTIES ONE FOR EACH SUCH PARTY The undersigned as an inducement for SERVICE COMPANY to enter into this Developer Agreement with DEVELOPER, , does hereby join in the execution of this Developer Agreement for the purpose of subordinating each and every interest of the undersigned here in and to that real property more particularly described in Exhibit "A"attached hereto and made a part hereof to the rights of SERVICE COMPANY as provided for herein. WITNESSES: Name of Company By: S'an Name Type or Print Name As: Sign Name Type or print taie Type or Print Name STATE OF ) COUNTY OF ) The foregoing instrument was acknowledged before me this day of , by as of He/she is personally known OR Produced Identification . Type of Identification Produced: Signature of Notary: Primed at-mewed num of Navy My Commission Expires: 31 F ei r."D" CONTRIBUTIONS-IN-AID-OF-CONSTRUCTION("CIAC").AND OTHER CHARGES In order to further induce the SERVICE COMPANY to provide and maintain adequate and sufficient central water and sewer facilities,DEVELOPER hereby agrees to abide by the provisions of this Exhibit"D"and to pay to the SERVICE COMPANY,in accordance with the terms and conditions set forth below,the sums of money set forth herein as Contributions-in- Aid-of-Construction("CIAC"),together with such other charges as are hereafter provided for. These charges are necessarily the total charges for the project. The SERVICE COMPANY will charge any rates,fees and charges authorized in its tariffs,or authorized by Collier County. 1. Water and Sewer Capacity Chargee DEVELOPER agrees to pay SERVICE COMPANY water and sewer system capacity charges to induce SERVICE COMPANY to provide water and sewer treatment plant capacity to DEVELOPER in the amount approved by Collier County,per Equivalent Residential Connection (ERC). Based upon the foregoing,the DEVELOPER'S total system capacity charges,as aforedescribed,is calculated based upon Two Hundred.200,equivalent residential connections (ERG'S)being required by DEVELOPER,which are: A: Plant Capacity Charge-Sewer$964.00 per ERC for a total of $192,800.00. B: Plant Capacity Charge-Water$1,128.00 per ERC for total of $225,600.00. 2. Compliance with SERVICE COMPANY'S Service Availability Policy and Tariff: DEVELOPER recognizes and agrees to abide by all of the provisions of SERVICE COMPANY'S Service Availability Policy and/or Tariffs as filed with and/or approved by Collier County,and other applicable governmental authorities having jurisdiction thereof. 3. Reimbursement of Costs:Upon the execution of this Agreement,DEVELOPER shall pay to SERVICE COMPANY a deposit in the amount of$5,000.00 for SERVICE COMPANY'S reasonable legal and administrative costs in negotiating,preparing and executing this developer agreement,engineering and inspection fees.The actual costs may be more or less depending on the circumstances.Any excess deposit shall be refunded, and DEVELOPER shall be subject to paying any costs in excess of the deposit. 1. Tap-in charges. Various tap-in fees maybe charged based on the nature of the individual service lines and size requirements. 2. Meter installation fees_ Various meter installation fees will be charged based on the nature of the individual service lines and size requirements. Initials 32 It()N TO i d i � I: ' fr GROUrj July 25,2016 Perfecting Development Kimberly P.Wilber,Office Manager Orange Tice Utility Co.Inc. 4500 Executive Drive,Suite 110 Naples,FL 34119 RE: TwinEagles Developments AOR LLC Assignment of Prepaid Water and Wastewater Availability Fees Please accept this letter as written authorization to deduct the following for construction of a Single Family Unit within TwinEagi s from TwinEagles Developments AQR,LLC'a account: TO BE ASSIGNED TO Communities Communities LLC 1 i SUBDIVISION Lock-ford . LOT 13 BLOCK 107 ADDRESS = 12449 Lock£ord Lane, Nap1ca,Fl. 34120 AUTHORIZATION NUMBER 2016-056 METER SIZE ye, NUMBER OF UNITS 1 ERC TYPE Water ERC QUANITIX 1.00 FRC VALUE $964.00(1 ERC—$.964.001. TO BE MintoASSIGNED' Communitiesr LLC SUBDIVISION TO Lockford LOT 13 BLOCK 10? ADDRESS 12449 Lockford Lane,Nodes,FL 34120 AUTHO_RIZATIONNi1MBER 2015-056 ERC TYPE _ Wastewater M _ ERC QUANTITY 1.00 ERC VALUE 513128.00(1 ERC-$1,128.00) Wein TwinEagles Developments AGR,LLC Authorized Representative 34 • ORANGE TREE UTILITY CO INC EMAIL ONLY August 4,2016 Anthony Solomon Executive V P The panto Group 3080'Timm Tree N Suite 201 Naples,Fl 34103 Re, Orange Tree UtilityCo Inc(OTUC)operationity nn8 protocols for Developer pre-paid capacity. Dear Anthony, The fallowing is an outline es to how Orange Tree Utility coordinates with Dovelapors who hove pre-paid capacity Developer will purchase a bulk number of Equivalent Residential Connections(ERC)from OTUC Developer has the ability to sell kit(s)to a third party,referred to as'builder, to construct a dwelling Developer is required to furnish OTUC a letter confirming when a builder has paid for the capacity fee The Developer letter is to reference the following minimum requirements: Project,Phase.lot,Block, Physical Address(including City,State,Zip),the number of ERC(s)paid for.date paid,and builder's name ( who paid s in the event DIMcapacity fees change;the builder is required to pay the difference between the pre- 1 paid Developer capacity fee and the current rates listed on our tariff approved by the Regulatory Authority OTUC is not able to accept requests for service from a builder without a signed letter from the Developer confirming capacity fees have been paid OTUC will peradlcaay request an accounting frons Developer evidencing the committed capacity against the available capacity remaining for a project. OTUC will afford Developer time to provide this request. We have enclosed a copy of an eslstrng letter that is used for this purpose If you have any questions regarding the above referenced,please do not hesitate to contact our office. Sincerely Kimberly P.Thorntn,) Office Manager 4500 Executive Ono Suite 110 Naples,Florida 34114 Phone 239 596 4088 email kat hotel on#orengetreeassociates.tom ( 35 Supplemental Report of County Staff and Special Counsel Addressing New Information Provided by Orange Tree Utility and Orangetree Associates on January 19 and January 20, 2017 Introduction County Staff and special counsel have been informed that Orange Tree Utility and Orangetree Associates, while in possession of the Hole Montes update report at the time they signed the Integration Agreement, do not accept the update, specifically as included in Appendix J of the Integration Agreement. Orange Tree Utility and Orangetree Associates further filed last week a copy of a September 2016 developer agreement between Orange Tree Utility and RP Orange Blossom Owner, LLC, and requested that the County accept assignment of this new agreement and amend Appendix G to the Integration Agreement to reflect such assignment. The update and the facts presented in this supplemental report confirm that Orangetree Associates should not receive any free connections after the closing of this transaction. Providing Orangetree Associates free connections would conflict with the transfer"at no cost" dictates of the applicable ordinances and agreements, would cause the Collier County Water-Sewer Department("CCWSD")to pay for the facilities necessary to serve Orangetree Associates, and ultimately, after CCWSD builds and pays for such facilities, would harm the customers by forcing them to pay higher rates to subsidize the development activities of Orangetree Associates. It also is unclear whether the County should agree to accept assignment of the Orange Blossom developer agreement as only an incomplete copy was provided and material terms are missing. Florida Law requires consideration of 9 factors before acquiring a water and wastewater utility • The 9 factors are addressed in the staff report attached to Staffs recommendation in support of signing the integration agreement(on condition that no free connections be provided to Orangetree Associates after transfer of Orange Tree System to County) • These factors include an analysis of the system and the utility owner's investment in the system to be acquired as well as an analysis of the benefits and disadvantages of the proposed integration by the County • County staff has conducted due diligence activities and will continue to do so through closing date (continued due diligence allowed by terms of integration agreement) The integration agreement and transfer documents provide the means for transferring the Orange Tree Utility System to the Collier County Water-Sewer District All ordinances and agreements between the County and Orange Tree Utility and its developer affiliate, Orangetree Associates require the transfer of the Orange Tree System to the County at no cost In return for this agreement to transfer the Orange Tree System to the County at no cost, Orange Tree Utility and Orangetree Associates,for the past 30 years, have requested and have received from the County: • the right to develop property, • the right to temporarily provide water and wastewater service to the property, • higher density rights on the property, • re-zoning of the property,and • the County's commitment to delay assuming ownership of the water and wastewater systems for more than 25 years Agreements and Ordinances obligating and re-affirming Orange Tree Utility and Orangetree Associates'obligation to transfer water and wastewater systems to the County at no cost include the following: • 1987 Settlement and Zoning Agreement: o Developer litigation settled with developer receiving right to develop property; property re-zoning o Section 9.02(D)(4), Developer to dedicate interim water and wastewater systems to County upon County request • Ordinance 87-13: approved and codified Settlement and Zoning Agreement • 1991 Agreement: o Whereas clause: "Whereas Settlement and Zoning Agreement requires, and the Developer acknowledges and ratifies,that the Developer shall freely and voluntarily convey at no cost to the County all water and sewer treatment plants and distribution/collection and transmission system components in existence at such time in the future that the County formally indicates its desire to serve the Project with water and sewer related utility facilities." o Section 22. Agreement intended to carry out terms of settlement and zoning agreement and Ordinance 87-13, includes obligation to dedicate water and sewer systems to County upon County request o Whereas clause: OTU requested agreement from County to wait until 2001 before assuming ownership of Orange Tree System; County agrees (section 14) • Ordinance 91-43: o Section Thirty Two, amending section IX, E. Water and Sewer, subsection (3), "Any utility entity established to serve or serving the project shall also be bound by these General Development Obligations concerning the provision of water and sewer related utilities to the project." o Section Thirty Two, amending section IX, E.Water and Sewer, subsection (4), "It is understood by Developer that Collier County may, at some future time, desire to serve the project water and sewer services.To that end, Developer freely and voluntarily agrees to convey at no cost all water and sewer treatment plants and distribution/collection and transmission system components to Collier County." • 1996 First Amendment to 1991 Agreement: o Orangetree Associates requested County wait 15 years, until 2011, before assuming ownership of Orange Tree System o Re-affirmed 1991 agreement including "at no cost"transfer obligation • 1998 Second Amendment to 1991 Agreement: o Orange Tree Utility requested and received authorization to serve additional development,TwinEagles o Orange Tree Utility requested and received easements from County o Orange Tree requested and received County agreement to wait until "at least 2012" before assuming ownership of Orange Tree System o Re-affirmed 1991 agreement including"at no cost"transfer obligation • Ordinance 12-09 o Orange Tree and Orangetree Associates requested and received re-zoning authorization o Orange Tree and Orangetree Associates requested and received County agreement to wait until December 31, 2012 before assuming ownership of Orange Tree System o Section 11.02(E)(5): "Developer freely and voluntarily agrees to convey at at no cost" all water and sewer treatment plants and distribution/collection and transmission system components to Collier County." Orange Tree sued the County in 2007 requesting that the court relieve it of obligations it"freely and voluntarily"agreed to under the ordinances and agreements • Orange Tree claimed agreements entered under duress and the obligation to transfer systems at no cost to County constituted unconstitutional taking of Orange Tree's property • Court granted County summary judgment o Court rejected all Orange Tree arguments o Court recognized Orange Tree received benefits of development, higher densities, re-zoning, etc. in return for commitment to transfer water and wastewater systems to County at no cost o Court decision appealed by Orange Tree; Orange Tree lost appeal o Court ordered Orange Tree to pay County's litigation and appeal costs o Orange Tree did not pay County its costs until the currently pending litigation was filed by County 9 years later 2014-2017: Orange Tree refused to transfer water and wastewater systems unless County gives developer Orangetree Associates free connections to water and wastewater systems after transfer,in effect, imposing a cost upon the County,customers of the Collier County Water-Sewer Department and Orange Tree Utility • County sued Orange Tree Utility and developer Orangetree Associates to enforce obligation to transfer water and wastewater systems to County at no cost as Orange Tree Utility and Orangetree Associates "freely and voluntarily"agreed to do pursuant to the terms of the agreements and ordinances • County also sued Orange Tree Utility for payment of litigation costs awarded to the County by the Court in the 2007 litigation as Orange Tree Utility previously had refused to pay it; Orange Tree paid County more than $300,000, including interest • Current lawsuit pending and on April trial calendar of Collier County Circuit Court o County suing to enforce "no cost" transfer of water and wastewater systems o County pursuing any costs which will be required to be invested by County to bring water and wastewater systems into 100%compliance with permits, rules and laws o County pursuing recovery of connection charges paid which should have been invested in water and wastewater systems; including nearly$400,000 collected by Orange Tree Utility in 2016 o County pursuing recovery of attorneys fees and costs of litigation There is no obligation for County to give Orangetree Associates free connections after transfer of the Orange Tree System to the County No agreement or ordinance obligates the County to give Orangetree Associates free connections after transfer to the County When Orangetree Associates and Orange Tree Utility repeatedly asked for higher densities, re-zoning 1 of property and delays in County election to take over water and wastewater systems for the past 20 years,they did not suggest that they also wanted free connections at time of transfer Any free connections for Orangetree Associates come at the expense of existing Orange Tree Utility and Collier County Water-Sewer Department customers who would then be forced to subsidize the development activities of Orangetree Associates and pay higher rates than otherwise would be required Orangetree Associates and Orange Tree Utility,should they be permitted to keep cash contributions previously paid by developers and recently paid by Orange Blossom and Publix(funds which should be invested in the water and wastewater systems),already is receiving a benefit not available under the terms of the ordinances and agreements • All ordinances and agreements provide that the water and wastewater systems are to be transferred to the County at no cost • Giving Orangetree Associates free connections after transfer would impose a cost on the County and existing customers of Orange Tree and Collier County Water-Sewer Department; lost connection charges result in the County having to find funds to invest in the Orange Tree System and customers must pay for those funds (instead of Orangetree Associates providing such funds) • Orange Tree Utility treated its developer affiliate Orangetree Associates differently than all other developers and customers • All other developers had to enter developer agreements with Orange Tree Utility • All other developers had to build facilities and contribute them to Orange Tree Utility • All other developers had to pre-pay connection charges to Orange Tree Utility • Some developers had to pay"refundable advances" to Orange Tree Utility to fund new facilities; Orange Tree Utility took advance funds from developers and did not build some of the identified facilities Orange Tree Utility was obligated to build • All customers pay connection charges to receive service from Orange Tree Utility; no proof has been provided that Orangetree Associates ever made contributions of cash or facilities to Orange Tree Utility, upon connection or otherwise • Orange Tree Utility Actions In Effect Have Caused Developers and Customers to Subsidize Orangetree Associates development activities • In Duval Utility Co.v. Florida Public Service Commission, 380 So. 2d 1028 (Fla 1980), the Florida Supreme Court addressed Public Service Commission orders which "condition the right of two utilities to receive service availability charges(commonly known as "connection charges," or contributions in aid of construction)from their customers. Under the commission's orders,the utilities must agree to hold all such charges from company customers solely for the use and benefit of those customers, not only during the course of future rate proceedings but also upon the sale or other disposition of the utilities' properties.The main purpose of the commission's condition for service availability charges is to assure that customers do not have to pay for the system twice upon its sale or condemnation, once through their contributions and a second time through their rates to support the transferee's investment when a sale or condemnation includes contributions."This is the situation confronting the customers of Orange Tree Utility now.The Court remanded the case back to the commission for further evidence from the commission to support its orders. • Orange Tree Utility collected more contributions in aid of construction, $11.5 million,from developers(other than Orangetree Associates) and customers than Orange Tree Utility has invested in the water and wastewater systems, $10 million,as of 2015 • Orange Tree Utility and Orangetree Associates have never accounted for the additional$1.5 million • During the period in which Orange Tree Utility and Orangetree Associates have unjustifiably refused to transfer the water and wastewater systems to the County, thus violating County ordinances and breaching the outstanding agreements, Orange Tree Utility collected $400,000 in 2014 and nearly$100,000 in 2015 in contributions from developers and customers • Orange Tree Utility collected $418,400 from another developer,Orange Blossom, as recently as September,2016 • Orange Tree Utility collected $69,000 from Publix Supermarkets in 2016 • Orange Tree Utility possesses nearly$2 million of cash contributions which are collected by utilities not to enrich the utility owner but to benefit the utility's customers by keeping rates lower • If a utility collects$12 million in contributions in aid of construction from developers and customers, $12 million should be invested in the utility facilities serving them • To incentivize Orange Tree Utility and Orangetree Associates to complete the transfer of the Orange Tree System to the County without further litigation costs,the integration agreement would permit Orange Tree Utility and Orangetree Associates to keep the$1.5 million of unaccounted for cash contributions collected prior to 2016 together with the nearly$500,000 Orange Tree Utility collected from the Orange Blossom developer and Publix Supermarkets in 2016 for a total of$2 million ■ If litigation is required,the County will demonstrate that these funds should have been invested in the water and wastewater systems or should be provided to County at transfer to pay for system improvements and expansion The Smoking Gun Confirming No Free Connections are Required or Warranted Orange Tree Utility, on January 19, 2017, provided the County with an incomplete copy of a developer agreement which Orange Tree Utility signed on September 7, 2016 with RP Orange Blossom Owner LLC. Orange Tree Utility asks the County to include this developer agreement in the list of agreements to be assigned to the County at closing.The incomplete document is attached to this supplemental report. 1 Many pages of the agreement are missing including the page or pages which would identify the scope and details of the County's obligations to serve the developer if the County accepts assignment of the agreement. The agreement indicates that Orange Tree Utility has required the developer, Orange Blossom,to pay Utility$418,400 in pre-paid connection charges. Orange Tree Utility has indicated that it refuses to turn the$418,400 over to the County at closing despite the fact that Orange Tree Utility already has collected $1.5 million more in cash and assets from developers and customers than Orange Tree Utility has invested in the water and wastewater systems;this over-collection,when combined with the Publix Supermarkets pre-paid cash contribution of approximately$70,000 raises the amount of the over- collection to approximately$2 million (which should have been invested or should be held for investment in the water and wastewater systems). Unlike every prior developer agreement signed by Orange Tree Utility with third party developers,this developer agreement acknowledges that Orange Tree Utility may not have capacity to serve the developer's entire needs.The language from this developer agreement,found in no other developer agreement provided to the County to date, is as follows(Service Company is term used for Orange Tree Utility): Development Agreement with RP Orange Blossom signed by Orange Tree Utility on September 7,2016 "In the event that Service Company has existing capacity at its treatment plant to provide service to all persons including Developer who have contracted and paid for same in the order of their developer agreement date of execution.Service Company shall not diminish or utilize the water and sewer capacity allotment assigned to Developer hereunder by providing water and sewer capacity to other developers or customers, without the prior written consent of the Developer, unless such other developers or customers provide to Service Company or there are otherwise available to Service Company sufficient funds to pay the costs to Service Company of providing water and sewer treatment facilities to replace the water and sewer treatment facilities so utilized by such other developers or customers and Service Company has received approval by all governmental agencies having jurisdiction over such facilities to the construction of such facilities and the anticipated completion date of the construction of such facilities shall meet the Developer's requirements(including Developer's timing needs)for water and sewer services as provided for in its Development Plan attached hereto." No developer agreement signed by Orange Tree Utility prior to the September 7, 2016 Orange Blossom agreement ever included the "In the event..." language which advises a developer that capacity may not be available to serve their entire needs and capacity that is available at any time in the future would be allocated to developers "in the order of their developer agreement date of execution." Below are a few examples from other developer agreements signed by Orange Tree Utility. Note there is no "In the event..." language but the rest of the paragraph is the same as the paragraph quoted above from the September, 2016 Orange Blossom developer agreement: Development Agreement with Naples Orangetree, Ltd signed by Orange Tree Utility on June 29, 1994 "Service Company shall not diminish or utilize the water and sewer capacity allotment assigned to Developer hereunder by providing water and sewer capacity to other developers or customers, without the prior written consent of the Developer, unless such other developers or customers provide to Service Company or there are otherwise available to Service Company sufficient funds to pay the costs to Service Company of providing water and sewer treatment facilities to replace the water and sewer treatment facilities so utilized by such other developers or customers and Service Company has received approval by all governmental agencies having jurisdiction over such facilities to the construction of such facilities and the anticipated completion date of the construction of such facilities shall meet the Developer's requirements (including Developer's timing needs) for water and sewer services as provided for in its Development Plan attached hereto." Development Agreement with Waterways Joint Venture signed by Orange Tree Utility on August 4, 1996 "Service Company shall not diminish or utilize the water and sewer capacity allotment assigned to Developer hereunder by providing water and sewer capacity to other developers or customers, without the prior written consent of the Developer, unless such other developers or customers provide to Service Company or there are otherwise available to Service Company sufficient funds to pay the costs to Service Company of providing water and sewer treatment facilities to replace the water and sewer treatment facilities so utilized by such other developers or customers and Service Company has received approval by all governmental agencies having jurisdiction over such facilities to the construction of such facilities and the anticipated completion date of the construction of such facilities shall meet the Developer's requirements(including Developer's timing needs) for water and sewer services as provided for in its Development Plan attached hereto." Development Agreement with Waterways Joint Venture II signed by Orange Tree Utility on March 3, 1999 "Service Company shall not diminish or utilize the water and sewer capacity allotment assigned to Developer hereunder by providing water and sewer capacity to other developers or customers, without the prior written consent of the Developer, unless such other developers or customers provide to Service Company or there are otherwise available to Service Company sufficient funds to pay the costs to Service Company of providing water and sewer treatment facilities to replace the water and sewer treatment facilities so utilized by such other developers or customers and Service Company has received approval by all governmental agencies having jurisdiction over such facilities to the construction of such facilities and the anticipated completion date of the construction of such facilities shall meet the Developer's requirements(including Developer's timing needs)for water and sewer services as provided for in its Development Plan attached hereto." Development Agreement with Beazer Homes, Inc. signed by Orange Tree Utility on April 3, 2002 "Service Company shall not diminish or utilize the water and sewer capacity allotment assigned to Developer hereunder by providing water and sewer capacity to other developers or customers, without the prior written consent of the Developer, unless such other developers or customers provide to Service Company or there are otherwise available to Service Company sufficient funds to pay the costs to Service Company of providing water and sewer treatment facilities to replace the water and sewer treatment facilities so utilized by such other developers or customers and Service Company has received approval by all governmental agencies having jurisdiction over such facilities to the construction of such facilities and the anticipated completion date of the construction of such facilities shall meet the Developer's requirements(including Developer's timing needs)for water and sewer services as provided for in its Development Plan attached hereto." Development Agreement with Pulte Home Corporation signed by Orange Tree Utility on April 19,2006 "Service Company shall not diminish or utilize the water and sewer capacity allotment assigned to Developer hereunder by providing water and sewer capacity to other developers or customers,without the prior written consent of the Developer, unless such other developers or customers provide to Service Company or there are otherwise available to Service Company sufficient funds to pay the costs to Service Company of providing water and sewer treatment facilities to replace the water and sewer treatment facilities so utilized by such other developers or customers and Service Company has received approval by all governmental agencies having jurisdiction over such facilities to the construction of such facilities and the anticipated completion date of the construction of such facilities shall meet the Developer's requirements (including Developer's timing needs)for water and sewer services as provided for in its Development Plan attached hereto." Development Agreement with The Estates at Twin Eagles, Ltd. signed by Orange Tree Utility on November 27, 2006 "Service Company shall not diminish or utilize the water and sewer capacity allotment assigned to Developer hereunder by providing water and sewer capacity to other developers or customers,without the prior written consent of the Developer, unless such other developers or customers provide to Service Company or there are otherwise available to Service Company sufficient funds to pay the costs to Service Company of providing water and sewer treatment facilities to replace the water and sewer treatment facilities so utilized by such other developers or customers and Service Company has received approval by all governmental agencies having jurisdiction over such facilities to the construction of such facilities and the anticipated completion date of the construction of such facilities shall meet the Developer's requirements (including Developer's timing needs)for water and sewer services as provided for in its Development Plan attached hereto." From these facts it is obvious that contrary to the representations by Orange Tree Utility and Orangetree Associates that the Orange Tree System has significant excess capacity, the acknowledgment of capacity limitations reflected in the "In the event..." sentence confirms that the developer, Orange Blossom, should receive capacity allocation priority over any development by Orangetree Associates. In fact,since Orangetree Associates has never entered a developer agreement with Orange Tree Utility, pursuant to the dictates of this sentence, all other developers who previously have signed a developer agreement with Orange Tree Utility(including other developer clients of counsel for Orange Tree Utility and Orangetree Assocaiates, Bruce Anderson), are to be accorded capacity allocation priority over Orangetree Associates. Comments regarding January 4,2017 letter report of Orange Tree Utility engineering expert,Gerald Hartman Also attached to this supplemental report is a copy of January 4, 2017 correspondence from the County's special counsel providing an analysis and comments regarding a letter report from Orange Tree Utility's chosen engineering expert, Gerald Hartman. Orange Tree Utility and Orangetree Associates have requested that Mr. Hartman's letter report be submitted to the Board for its consideration regarding the free connections issue. The attached comments speak for themselves, however, it must be noted that while Mr. Hartman clearly is aware of the contents of the September, 2016 Orange Blossom developer agreement discussed earlier in this report, he makes no mention of Orange Tree's acknowledgment of a capacity limitation. Mr. Hartman fails to reconcile his claims of excess system capacity with the fact that Orange Tree Utility for the first time has informed developers that to the extent capacity is unavailable to serve the number of connections for which they have pre-paid connection charges, such capacity as is available will be provided in the order in which the developers signed a developer agreement and pre-paid for them. Mr. Hartman's letter report lacks candor and credibility and should be dismissed from consideration by the Board. Benefits and Disadvantages of Terms of Integration Agreement • Service to existing Orange Tree Utility customers will improve • Systems will be brought into compliance • Any contributions collected, cash or property, will be invested in the water and wastewater systems • Developers will all be treated equally by the County • Current customer issues with Orange Tree Utility customer service will be eliminated • Customers will know that the rates and connection charges they are paying are being used to provide service and only to provide service • Customers can be confident that the service they are receiving comply with all permits, rules and laws • County will improve wastewater treatment process to reclaimed water standards and allow beneficial reuse of the treated wastewater • Valencia Homeowners Association will receive reclaimed water which meets applicable standards • System interconnects with County system are made possible providing fire flow, reliability of supply and the most economical service possible • The County will take another step forward in ensuring all County residents receive high quality water and wastewater services at reasonable rates • As the County provides advanced wastewater treatment and beneficial reuse of treated wastewater throughout its system, and will improve the Orange Tree System to accommodate reuse as well, current Orange Tree Utility customers will see a slight decrease in water bills but a significant increase in wastewater bills after the transfer; a net increase of approximately 31% in a monthly bill Agenda Item No. 1 ) E., Agenda Item Topicis X7-P —e6-- (For Public Comment, list topic) Meeting Date: Name: �.��/ 0C./MOAddress: �-� � t A/C,/ &" Representing/Petitioner: Other: COLLIER COUNTY ORDINANCE NO. 2003-53, AS AMENDED BY ORDINANCE 2004-05 AND 2007-24, REQUIRES THAT ALL LOBBYIST SHALL, BEFORE ENGAGING IN ANY LOBBYING ACTIVITIES(INCLUDING, BUT NOT LIMITED TO, ADDRESSING THE BOARD OF COUNTY COMMISSIONERS), REGISTER WITH THE CLERK TO THE BOARD AT THE BOARD MINUTES AND RECORDS DEPARTMENT YOU ARE LIMITED TO THREE (3) MINUTES FOR YOUR COMMENTS AND ARE TO ADDRESS ONLY THE CHAIR PUBLIC COMMENT IS NOT INTENDED TO BE A FORUM FOR SELF-PROMOTION. PUBLIC COMMENT SPEAKERS WHO ENGAGE IN ADVERTISING THEIR BUSINESS, PERSONAL POLITICKING OR OTHER FORMS OF SELF-PROMOTION WILL BE ASKED TO LEAVE THE PODIUM. PLACE COMPLETED FORM ON THE TABLE TO THE LEFT OF THE DAIS - PLEASE PRINT CLEARLY Agenda Item No. // Agenda Item Topic , `ice oi-.Li (For Public Comment, list topic) Meeting Date: Z y/ 2 Name: --7-6 et a v Ae, L . Address: /s s r f1/2.4cAni✓ .; 3 S'/v Representing/Petitioner: Other: COLLIER COUNTY ORDINANCE NO. 2003-53, AS AMENDED BY ORDINANCE 2004-05 AND 2007-24, REQUIRES THAT ALL LOBBYIST SHALL, BEFORE ENGAGING IN ANY LOBBYING ACTIVITIES(INCLUDING, BUT NOT LIMITED TO, ADDRESSING THE BOARD OF COUNTY COMMISSIONERS), REGISTER WITH THE CLERK TO THE BOARD AT THE BOARD MINUTES AND RECORDS DEPARTMENT YOU ARE LIMITED TO THREE (3) MINUTES FOR YOUR COMMENTS AND ARE TO ADDRESS ONLY THE CHAIR PUBLIC COMMENT IS NOT INTENDED TO BE A FORUM FOR SELF-PROMOTION. PUBLIC COMMENT SPEAKERS WHO ENGAGE IN ADVERTISING THEIR BUSINESS, PERSONAL POLITICKING OR OTHER FORMS OF SELF-PROMOTION WILL BE ASKED TO LEAVE THE PODIUM. PLACE COMPLETED FORM ON THE TABLE TO THE LEFT OF THE DAIS - PLEASE PRINT CLEARLY Agenda Item No. Agenda Item TopicCen.�r�n� (� Le/1/ (For Public Comment, list topic) Meeting Date: ( � Name: Iv 1 Colo F1P0S Address: 1 `lq `. .S0, 1 (41,-, On-cryc 1,441./‘ • C Representing/Petitioner: fonspi rl V,( . al Other: COLLIER COUNTY ORDINANCE NO. 2003-53,AS AMENDEb BY ORDINANCE 2004-05 AND 2007-24, REQUIRES THAT ALL LOBBYIST SHALL, BEFORE ENGAGING IN ANY LOBBYING ACTIVITIES (INCLUDING, BUT NOT LIMITED TO, ADDRESSING THE BOARD OF COUNTY COMMISSIONERS), REGISTER WITH THE CLERK TO THE BOARD AT THE BOARD MINUTES AND RECORDS DEPARTMENT YOU ARE LIMITED TO THREE (3) MINUTES FOR YOUR COMMENTS AND ARE TO ADDRESS ONLY THE CHAIR Agenda Item No. I - Agenda Item Topic COr r\i 41 (c?LLur (For Public Comment, list topic) I Meeting Date: /a /1-3 Name: fLJY Address: Representing/Petitioner: i 1(JSf rt4b/i. L. AA Other: COLLIER COUNTY ORDINANCE NO. 2003-53, AS AMENDED BY ORDINANCE 2004-05 AND 2007-24, REQUIRES THAT ALL LOBBYIST SHALL, BEFORE ENGAGING IN ANY LOBBYING ACTIVITIES (INCLUDING, BUT NOT LIMITED TO, ADDRESSING THE BOARD OF COUNTY COMMISSIONERS) RFr,IcTco _• BOARD AT THP Pneon T�^ • - -- Item Topic Aenda Item No. [= Agenda ,p g (For Public Comment,list topic) oNtn- Meeting Date: l N A-s ti 5 Name: k1 - Address: AUlo 6n - L � Other: Representing/Petitioner. REQUIRES TCOMMHAT ALL LOBBYIST SHALL, BEFORE ENGAGING IN COLLIER COUNTY ORDINANCE N0.2003-53, AS AM DED BY ORDINANCE 2004 05 AND 20+7 24, LIMITED TO, ADDRESSING THE BOARD OF COUNTY ISSIONERS), REGISTER WITH THE CLERK TO THE ANY LOBBYING ACTIVITIES (INCLUDING, BUT NOBTAT THE BOARD MINUTES AND RECORDS DEPARTMENT MINUTES FOR YOUR N vni ARF LIMITED TO THREE (3) „�t ,,�, ni InI Ir'e.nMMENT SPEAKERS WHO COMMENTS AND ARE TO ADDRESS ONE INLY ADVERTISINGTHECHAIR -_ nnnn inn Agenda Item No. I� Agenda g ge da Item Topic C YV - un, Co) ftuy (For Public Comment, list topic) Meeting Date: 11) -4i) n- Name: �. t ,�� eiteift Address: Representing/Petitioner: Other: COLLIER COUNTY ORDINANCE NO. 2003-53, AS AMENDED BY ORDINANCE 2004-05 AND 2007-24, REQUIRES THAT ALL LOBBYIST SHALL, BEFORE ENGAGING IN ANY LOBBYING ACTIVITIES (INCLUDING, BUT NOT LIMITED TO, ADDRESSING THE BOARD OF COUNTY COMMISSIONERS), REGISTER WITH THE CLERK TO THE BOARD AT THE BOARD MINUTES AND RECORDS DEPARTMENT YOU ARE LIMITED TO THREE (3) MINUTES FOR YOUR COMMENTS AND ARE TO ADDRESS ONLY THE CHAIR PI IRI Ir.r'.r1AAAAFNT IC NI 1T Trl ❑C A \a Agenda Item No. C- Agenda Item Topic Cr,'tthft' LAIC( Q (For Public Comment, list topic) Meeting Date: t Name: \ P°q Address: !V d\ 2 C �. I Representing/Petitioner: � '� �� t-�i�C l L _ 'c=eAki 2 t164 Other: COLLIER COUNTY ORDINANCE NO. 2003-53, AS AMENDED BY ORDINANCE 2004-05 AND 2007-24, REQUIRES THAT ALL LOBBYIST SHALL, BEFORE ENGAGING IN ANY LOBBYING ACTIVITIES (INCLUDING, BUT NOT LIMITED TO, ADDRESSING THE BOARD OF COUNTY COMMISSIONERS), REGISTER WITH THE CLERK TO THE BOARD AT THE BOARD MINUTES AND RECORDS DEPARTMENT YOU ARE LIMITED TO THREE (3) MINUTES FOR YOUR COMMENTS AND ARE TO ADDRESS ONLY THE CHAIR PUBLIC COMMENT IS NOT INTENDED TO BE A FORUM FOR SELF-PROMOTION. PUBLIC COMMENT SPEAKERS WHO ENGAGE IN ADVERTISING THEIR BUSINESS, PERSONAL POLITICKING OR OTHER FORMS OF SELF-PROMOTION WILL BE ASKED TO LEAVE THE PODIUM. PLACE COMPLETED FORM ON THE TABLE TO THE LEFT OF THE DAIS - PLEASE PRINT CLEARLY O o o o N N l OQQQ m c o 0 0 El g d co 1- O o 0 0 ---� x N N MLO o� R > r Hi N N F O O O d4 Ef} 69u3 x N ‹ o O O O Co O O O O W O N1 B. 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