Agenda 07/07/2015 Item #16K57/7/2015 16.K.5.
EXECUTIVE SUMMARY
Recommendation that the Board of County Commissioners, Ex- officio the Governing
Board of the Collier County Water -Sewer District, direct the County Attorney to enforce
the terms of the May 18, 2015, mediation and pursue any and all actions required to hold
the required public hearing, together with the recovery of the County's legal fees and costs.
OBJECTIVE: To approve and direct the County Attorney to enforce the mediation held on May
18, 2015, which integrates the Orange Tree Utility Company water and wastewater systems into
the Collier County Water -Sewer District, to provide water and wastewater utilities to Orange
Tree Utility customers pursuant to the May 28, 1991 Agreement, as amended, between Orange
Tree Utility Company, Orangetree Associates and the Board of County Commissioners of
Collier County, and seek recovery of the County's legal fees and costs associated with the
pending litigation.
CONSIDERATIONS:
Background:
The County originally was approached by predecessors of the current landowner and
utility serving the Orange Tree area (collectively, referred to as "Developer ") who sought
authority to develop land currently included in the Orange Tree Planned Unit Development (the
"PUD "). After the Developer initiated litigation against the County, the litigation was settled
pursuant to a 1986 Settlement and Zoning Agreement; and development authority was granted
by County Ordinance 87 -13. Orange Tree Utility Co. ( "OTU ") was created to provide water and
wastewater service to the Orange Tree Service Area. OTU possesses the right to provide water
and wastewater service by authority of the Collier County Water and Wastewater Authority (the
"Authority ") and remains subject to the jurisdiction of the Authority to this day.
Beginning in 1991, the County, OTU and Developer entered into agreements to clarify
certain rights among them, as prescribed originally in Ordinance 87 -13 which, among other
things, provide the County sole discretion to assume responsibility for providing water and
wastewater service in the Orange Tree Service Area. The County possesses the option to provide
such service either by assuming ownership of OTU's facilities, at no cost, or by interconnecting
CCWSD facilities to OTU's facilities (and requiring OTU to abandon and dismantle its existing
facilities).
The original agreement is dated May 28, 1991 (the "1991 Agreement "), and was amended
on May 13, 1996 and August 4, 1998. The amendments preserved the County's rights to assume
service responsibility but established the year in which the County's election to assume such
responsibility could be made (initially, 2011 then extended to 2012 by the second amendment).
The terms of the 1991 Agreement, as subsequently amended were codified in large part
in County Ordinances 87 -13, 12 -09 and intervening ordinances. County Ordinance 12 -09
includes several provisions that clarify the process for the County to assume responsibility for
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providing water and wastewater service in the Orange Tree area, as well as the mechanisms to be
used for the transfer of ownership of OTU's assets and other rights of OTU allowing such
service. The 1991 Agreement, other agreements relating to Developer's development rights
(such as the 1986 Settlement and Zoning Agreement) and applicable County ordinances are
collectively referred to as the "Development Agreement."
In 2007, OTU filed a lawsuit challenging the validity of the Development Agreement.
OTU argued that the terms of the Development Agreement violated OTU's constitutional rights
in that they constituted a taking without just compensation. OTU further argued that it was
coerced into signing the Development Agreement.
The Collier County Circuit Court issued a summary judgment in favor of the County
thereby rejecting OTU's claims. The County invoked the "prevailing party" clause in the
Development Agreement and was awarded attorney's fees in the amounts of $214,223.43 (for
trial) and $43,451.51 (for appeal), plus interest.
On March 26, 2013 as Agenda Item I IA, the Board directed the County Manager, or his
designee, to give notice to formally initiate the integration of the OTU into the CCWSD. Notice
was given to OTU on March 26, 2013, which started the 12 month notification period.
Beginning in 2013, the County engaged OTU in discussions relating to the Development
Agreement and the County's election to assume ownership of OTU's water and wastewater
system, at no cost to the County. OTU refused to convey the systems pursuant to the terms of
the Development Agreement.
With the Board's direction, on June 23, 2014, the County initiated a lawsuit to recover
the attorney's fees awarded by the court and to force OTU to transfer the OTU System to the
County at no cost pursuant to the Development Agreement. On or about October 13, 2014, the
County recovered full payment of its fees and costs, plus interest, from OTU.
Negotiations to provide for the integration of the OTU into the CCWSD continued after
the commencement of the above - referenced lawsuit and ultimately culminated in two separate
mediation sessions on January 8, 2015 and May 18, 2015, before a Certified Circuit Court Civil
Mediator. On May 18, 2015, a Mediated Settlement Agreement was entered into by the parties
to the litigation, subject only to approval by the Board of County Commissioners. The Mediated
Settlement Agreement included an agreed upon Integration Agreement providing for the
conveyance at no cost to the County. See attached Exhibit "A" The negotiated and agreed upon
takeover of the OTU utility facilities by the CCWSD will provide reliable services not only to
the OTU service area, but to other potential developments in the Northeast service area. The
closing date for transfer of the Orange Tree Utility to the CCWSD as agreed upon in the
Mediated Settlement Agreement is September 30, 2015.
In order for the Board to consider approval of the Integration Agreement a public hearing
must first occur. We cannot hold the required public hearing without certain documents, which
were agreed upon at the mediation. OTU has simply failed to provide the required documents.
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FISCAL IMPACT: The funds for the referenced outside counsel fees are in the budget of the
Public Utilities Division. There is no additional fiscal impact associated with this Executive
Summary.
LEGAL CONSIDERATIONS: This item is approved as to form and legality, and requires
majority vote for Board approval. —SRT
GROWTH MANAGEMENT IMPACT: This initiative meets current Growth Management
Plan standards to ensure the adequacy and availability of viable public facilities.
RECOMMENDATION: That the Board of County Commissioners, Ex- officio the Governing
Board of the Collier County Water -Sewer District, direct the County Attorney to enforce the
terms of the mediation and pursue any and all actions required to hold the public hearing,
together with recovery of the County's legal fees and costs.
PREPARED BY: Scott R. Teach, Deputy County Attorney
Attachments: Mediated Settlement Agreement
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COLLIER COUNTY
Board of County Commissioners
Item Number: 16.16.K.16.K.5.
Item Summary: Recommendation that the Board of County Commissioners, Ex- officio the
Governing Board of the Collier County Water -Sewer District, direct the County Attorney to
enforce the terms of the May 18, 2015, mediation and pursue any and all actions required to
hold the required public hearing, together with the recovery of the County's legal fees and
costs.
Meeting Date: 7/7/2015
Prepared By
Name: BrockMaryJo
Title: Executive Secretary to County Manager, County Managers Office
6/30/2015 4:06:48 PM
Submitted by
Title: Executive Secretary to County Manager, County Managers Office
Name: BrockMaryJo
6/30/2015 4:06:49 PM
Approved By
Name:IsacksonMark
Title: Division Director - Corp Fin & Mgmt Svc, Office of Management & Budget
Date: 6/30/2015 4:11:09 PM
Name: TeachScott
Title: Deputy County Attorney, County Attorney
Date: 6/30/2015 4:39:28 PM
Name: KlatzkowJeff
Title: County Attorney,
Date: 6/30/2015 5:13:55 PM
Name: OchsLeo
Title: County Manager, County Managers Office
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Date: 6/30/2015 5:51:46 PM
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7/7/2015 16.K.5.
The Twentieth Judicial Circuit Court in and for Collier County Florida
BOARD OF COUNTY COMMISSIONERS OF
COLLIER COUNTY, FLORIDA,
Plaintiff,
V. CASE NO: 14- 1434 -CA
ORANGE TREE UTILITY COMPANY,
Defendant.
MEDIATED SETTLEMENT AGREEMENT
Pursuant to agreement of the parties and all applicable court orders and procedures,
mediation was conducted in the above - styled matter before Certified Circuit Civil Mediator
Robin Doyle on Thursday, January 8, 2015 and May 18, 2015, and
THE PARTIES HERETO STIPULATE AND AGREE AS FOLLOWS:
The parties have agreed to all terms of the attached Integration Agreement which
they will recommend to their respective boards in a timely fashion to achieve
presentation to the Board of County Commissioners on June 23, 2015 and closing on
September 30, 2015.
WE THE UNDERSIGNED acknowledge our agreement on May 18, 2015.
Board of County Commissioners of
Collier County, Florida,
By:_
Its
Orange Tree Utility o. Inc.
By:
Its
latzkow
Collier County
V
urt L. Saunders
Attorney for Orange Tree
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INTEGRATION AGREEMENT
By and Between
Board of County Commissioners of Collier County, Florida, and as the Ex- Officio
Governing Board of the Collier County Water -Sewer District
And
ORANGE TREE UTILITY CO.,
ORANGETREE ASSOCIATES,
and
Roberto Bollt, as Successor Trustee of the
Land Trust Agreement dated January 27, 1986
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TABLE OF CONTENTS
PAGE
ARTICLE I
RECITALS, DEFINITIONS AND CONSTRUCTION
SECTION1.01. RECITALS ............................................................................. ..............................2
SECTION1.02. DEFINITIONS ....................................................................... ..............................2
SECTION 1.03. CONSTRUCTION AND INTERPRETATION .................... ..............................3
SECTION 1.04. SECTION HEADINGS ......................................................... ..............................3
ARTICLE II
THE ORANGE TREE SYSTEM
SECTION 2.01. ORANGE TREE SYSTEM ................................................... ..............................3
ARTICLE III
ORANGE TREE AND DEVELOPER REPRESENTATIONS
SECTION 3.01. ORANGE TREE AND DEVELOPER REPRESENTATIONS ..........................5
ARTICLE IV
INTEGRATION OF THE ORANGE TREE SYSTEM
SECTION 4.01. COUNTY TO ASSUME OWNERSHIP ............................... ..............................7
SECTION4.02. SURVEY ................................................................................ ..............................8
SECTION 4.03. TITLE VERIFICATION ........................................................ ..............................8
SECTION 4.04. TRANSFER, ASSIGNMENT AND ASSUMPTION ........... ..............................9
SECTION 4.05. INTEGRATION DATE AND PLACE OF CLOSING; PROCEDURES .........10
ARTICLE V
COUNTY AGREEMENT TO SERVE
SECTION 5.01. DEVELOPER TO PROVIDE PERIODIC GROWTH
PROJECTIONS TO COUNTY ............................................ .............................11
SECTION 5.02. CREDITS AGAINST SYSTEM DEVELOPMENT CHARGES .....................12
ARTICLE VI
OBLIGATIONS OF PARTIES PRIOR TO CLOSING
SECTION 6.01. CONDUCT OF PARTIES AFTER SIGNING THIS AGREEMENT ..............12
ARTICLE VII
POST- INTEGRATION COMMITMENTS
SECTION 7.01 TREATMENT PLANTS PROPERTY .................................. .............................13
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SECTION 7.02. FURTHER ASSURANCES ................................................. .............................13
ARTICLE VIII
GENERAL PROVISIONS
SECTION 8.01.
TERM OF AGREEMENT .................................................... .............................13
SECTION 8.02.
DISPUTE RESOLUTION .................................................... .............................14
SECTION 8.03.
ENTIRE AGREEMENT ....................................................... .............................14
SECTION 8.04.
AMENDMENTS AND WAIVERS ...................................... .............................14
SECTION8.05.
NOTICES .............................................................................. .............................14
SECTION 8.06.
PROPERTY TAXES ............................................................ .............................15
SECTION 8.07.
ACCOUNTS RECEIVABLE; CUSTOMER DEPOSITS .... .............................15
SECTION 8.08.
CONNECTION CHARGES ................................................. .............................16
SECTION 8.09.
PROFESSIONAL FEES; COSTS ........................................ .............................17
SECTION 8.10.
TRANSITION COORDINATION ....................................... .............................17
SECTION 8.11.
NOTICES; COMMUNICATIONS ...................................... .............................17
SECTION8.12.
RISK OF LOSS ..................................................................... .............................17
SECTION 8.13.
NO THIRD PARTY BENEFICIARIES ............................... .............................17
SECTION 8.14.
ASSIGNMENT OF THIS AGREEMENT ........................... .............................17
SECTION 8.15.
BINDING EFFECT .............................................................. .............................17
SECTION8.16.
SEVERABILITY .................................................................. .............................18
SECTION 8.17.
EXECUTION IN COUNTERPARTS .................................. .............................18
SECTION 8.18.
APPLICABLE LAW AND VENUE .................................... .............................18
SECTION 8.19.
ATTORNEY'S FEES, COSTS AND EXPENSES ............... .............................18
........................................ .............................18
SECTION 8.20.
INTENT; BINDING EFFECT .............................................. .............................18
SECTION 8.21.
EXCULPATION OF TRUSTEE ...................... ...............................
18
APPENDICES
APPENDIX A FORM OF WARRANTY DEED ....................................... ............................... A -1
APPENDIX B FORM OF ASSIGNMENT OF EASEMENTS AND RIGHTS ........................B -1
APPENDIXC FORM BILL OF SALE .......................................................... ............................0 -1
APPENDIX D FORM ASSIGNMENT OF PERMITS AND GOVERNMENT
AUTHORIZATIONS........................................................ ............................... D -1
APPENDIXE EXCLUDED ASSETS . ...................................................................................... E -1
APPENDIX F LINES USED BY ORANGE TREE WITH NO BILL OF SALE AND OTHER
PROPERTY AND ASSETS NOT PROPERLY OWNED OR POSSESSED BY ORANGE
TREEOR DEVELOPER .............................................................................. ............................... F -1
APPENDIX G TRANSFER, ASSIGNMENT AND ASSUMPTION AGREEMENT .............. G -1
APPENDIX H TRANSFER DOCUMENT ESCROW AGREEMENT ..... ............................... H -1
APPENDIXI JOINT STIPULATION ............................................................ ............................1 -1
ff
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INTEGRATION AGREEMENT
This Integration Agreement is made and entered into this day of
2015, by and between the Board of County Commissioners of Collier County,
Florida, and as the Ex- Officio Governing Board of the Collier County Water -Sewer District
( "County "), Orange Tree Utility Co., a Florida corporation ( "Orange Tree" or "Utility "),
Orangetree Associates, a Florida General Partnership (formerly known as " Orangetree
Associates, a joint venture "), and Roberto Bollt, as Successor Trustee of the Land Trust
Agreement dated January 27, 1986, recorded at Official Records Book 1347, Page 2331, and
amended June 26, 1996 and recorded in Official Records Book 2250, Page 1827, of the Public
Records of Collier County, Florida (collectively "Developer ").
RECITALS
1. The parties entered into certain "Development Agreements" dated 1987, 1991,
1996, 1998, and 2012. The Development Agreements obligate Orange Tree and Developer to
donate and convey at no cost to the County all water and sewer facilities (the "Orange Tree
System ") used by Orange Tree in the Orange Tree Service Area.
2. The Development Agreements provide that "in the event the County assumes
operation of the interim treatment facilities, all utility facilities shall be conveyed to the County
pursuant to County ordinances and regulations then in effect, together with all utility easements
required by the County."
3. The customers previously served within the Orange Tree Service Area by Orange
Tree shall become customers of the County at such time as the County accepts the conveyance of
the Orange Tree System and assumes operation thereof.
4. The Development Agreements provide that Orange Tree and Developer shall
cooperate with the County in preparing, providing and obtaining documentation to include, but
not be limited to, appropriate affidavits from Orange Tree and Developer and their attorneys as
to the title to the subject facility, bills of sale, warranty deeds, easements, subordinations, partial
release of lien or other instruments required to assume marketable, clear and unencumbered title
to the subject utility facilities at the time of conveyance to the County.
5. The Development Agreements provide that Orange Tree and Developer shall be
responsible to have the Orange Tree System in good working order and in compliance with all
County, State and Federal requirements when the facilities are conveyed to or vest in the County.
6. Orange Tree and the County have engaged in litigation pertaining to the
Development Agreements; most recently including the lawsuit filed by the County in Collier
County v. Orange Tree Utility Co., et al., Case No. 2014 -CA- 001434 (the "Pending Litigation ").
7. To settle the Pending Litigation, the County, Orange Tree and Developer wish to
accomplish the transfer of the Orange Tree System from Orange Tree and Developer to the
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County according to the terms of this Integration Agreement and the Mediated Settlement
Agreement in the Pending Lawsuit.
8. The Board of County Commissioners of Collier County, Florida, possesses all the
powers to acquire, own, improve, operate, maintain, and dispose of water and wastewater utility
facilities and to otherwise carry out the purposes of the Development Agreements and this
Integration Agreement.
9. The County has held a hearing pursuant to Section 125.3401, Florida Statutes, to
consider whether County ownership of the Orange Tree System is in the public interest. As a
result of such hearing, the County passed Resolution 2015- (the "Orange Tree Settlement
and Integration Resolution ") finding, among other things, that transfer of the Orange Tree
System from Orange Tree to the County pursuant to the terms of the Development Agreements
and this Integration Agreement is in the public interest and authorizing County officials to sign
this Agreement.
10. The County intends to continue to operate the Orange Tree System after transfer
of the Orange Tree System by Developer to the County, and the County does not intend to
immediately dismantle and disconnect such existing facilities.
NOW, THEREFORE, for and in consideration of the mutual premises set forth above
and the covenants, obligations, duties and benefits herein set forth, the County, Orange Tree and
Developer agree as follows:
ARTICLE I
RECITALS, DEFINITIONS AND CONSTRUCTION
SECTION 1.01. RECITALS. The foregoing Recitals are true and correct and are
incorporated herein.
SECTION 1.02. DEFINITIONS. As used in this Agreement, the following terms
shall have the meanings as defined herein unless the context requires otherwise:
"Agreement" means this Integration Agreement, including any amendments and
supplements hereto executed and delivered in accordance with the terms hereof.
"Integration Date" means the date of conveyance of the Orange Tree System to the
County to provide for the integration of the Orange Tree System into the County's utility system,
such date being set forth in Section 4.05 hereof.
"Orange Tree PUD Area" means the area within the Orange Tree Service Area
currently owned by Developer.
"Orange Tree Service Area" means the area to which Orange Tree is authorized to
provide water and/or wastewater service pursuant to authorization granted by the Collier County
Water -Sewer Regulatory Authority.
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"Orange Tree System" means real and personal property used in the operation of
Orange Tree's water and wastewater utility system located in Collier County, Florida, including
all of the potable water supply, treatment, storage, and distribution systems and wastewater
collection, transmission treatment and disposal systems, as more specifically described in Article
II herein.
"Treatment Plants Property" means the 28 area parcel identified in section 10.41 of
Collier County Ordinance 2012 -09.
SECTION 1.03. CONSTRUCTION AND INTERPRETATION.
(A) Words importing the singular number shall include the plural in each case and
vice versa, and words importing persons shall include firms and corporations. The terms
"herein," "hereunder," "hereby," "hereto," "hereof," and any similar terms, shall refer to this
Agreement; the term "heretofore" shall mean before the date this Agreement is executed; and the
term "hereafter" shall mean after the date this Agreement is executed.
(B) Each recital, covenant, agreement, representation and warranty made by a party
herein shall be deemed to have been material and to have been relied on by the other parties to
this Agreement. All parties have participated in the drafting and preparation of this Agreement,
and the provisions hereof shall not be construed for or against any party by reason of authorship.
SECTION 1.04. SECTION HEADINGS. Any headings preceding the texts of the
several articles, sections or appendices in this Agreement and any table of contents or marginal
notes appended to copies hereof, shall be solely for the convenience of reference and shall
neither constitute a part of this Agreement nor affect its meaning, construction or effect.
ARTICLE II
THE ORANGE TREE SYSTEM
SECTION 2.01. ORANGE TREE SYSTEM.
(A) The assets of Orange Tree and Developer to be conveyed to the County hereunder
shall consist of all assets, rights (tangible, real and personal) that Orange Tree or Developer
owns or possesses, individually or collectively, on the Integration Date, and which are used in
connection with the Orange Tree System and are more specifically identified in Appendices A
through D and F and which do not include those assets identified in Appendix E, including the
following:
(1) All fee simple real property as described in Appendix A, Warranty Deed,
hereof;
(2) All Easements, rights of ingress and egress, right -of -way utilizations and
other access rights of any kind throughout the Orange Tree Service Area, including those
described in Appendix B, Assignment of Easements, and any others that Orange Tree or
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Developer owns or possesses or that are necessary throughout the Orange Tree Service Area for
the use of the County to construct, operate and maintain the Orange Tree System;
(3) All water and wastewater treatment plants, including water supplies, wells,
fire hydrants, backflow prevention devices, collection, transmission, and distribution system
piping, pumping, and effluent and disposal facilities of every kind and description whatsoever
that are reasonably necessary for the operation of the Orange Tree System, including, without
limitation, all trade fixtures, leasehold improvements, lift stations, pumps, generators, controls,
tanks, distribution, collection or transmission pipes or facilities, valves, meters, meter
assemblies, meter reading devices, service connections, and all other physical facilities,
appurtenances and property installations used in the operation of the Orange Tree System
including, but not limited to, the items described in Appendix C, Bill of Sale;
(4) To the extent that they are controlled by or in the possession of Orange
Tree or Developer as of the date notice of intent to assume ownership was issued by the County,
all as -built surveys, water and wastewater plans, plats, engineering and other drawings, designs,
blueprints, specifications, maintenance and operating manuals, engineering reports, calculations
and computer studies;
(5) To the extent that they may be transferred, all existing lawfully required
regulatory approvals subject to all conditions, limitations or restrictions contained therein; all
existing lawfully required permits and other governmental authorizations and approvals of any
kind necessary to construct, operate, expand, and maintain the Orange Tree System according to
all governmental requirements, as more specifically described in Appendix D, Assignment of
Permits and Government Authorizations;
(6) The following records existing as of the date notice of intent to assume
ownership was issued by County, to the extent such records are within Orange Tree's possession
or control that relate to the operation or maintenance of the Orange Tree System: (i) all
information required to be maintained related to the Orange Tree System; (ii) all information
provided through the due diligence process; (iii) engineering project files; (iv) electronic and
paper map files; (v) plans for engineering projects; (vi) environmental files; (vii) developer files;
(viii) daily operations logs; (ix) operations files; (x) any consents or administrative orders; (xi)
service and warranty records; (xii) equipment logs, operating guides, and manuals located at
each plant; (xiii) customer records and database of customer accounts in format described in
Section 8.07, hereof, (xiv) updated fixed asset list; and (xv) copies of general ledger by plant;
and
(7) All claims and rights of Orange Tree or Developer against third parties,
whether choate or inchoate, known or unknown, contingent or non - contingent, relating to (a) the
Orange Tree System and (b) including a tacking of time periods of County ownership in addition
to Orange Tree or Developer ownership time periods for determining any prescriptive easement
or adverse possession claim.
(B) The Orange Tree System shall be conveyed by Orange Tree and Developer to the
County free and clear of all liens or encumbrances, subject to the Permitted Exceptions.
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(C) The Orange Tree System does not and shall not include the Excluded Assets as set
forth in Appendix E to this Agreement.
(D) Within sixty (60) working days after the Integration Date, Orange Tree shall
remove all Excluded Assets from the property and easement areas conveyed to the County. Such
removal shall be done in such manner as to avoid (1) any damage to the Orange Tree System and
other properties to be occupied by the County, and (2) any disruption to the operation of the
Orange Tree System after the Integration Date. Any damage to the Orange Tree System
resulting from such removal shall be paid, as soon as reasonably practicable, by Orange Tree.
Should Orange Tree fail to remove the Excluded Assets within such sixty (60) day period, the
County shall have the right, but not the obligation, (1) to remove the Excluded Assets at Orange
Tree's sole cost and expense; (2) to store the Excluded Assets and to charge Orange Tree all
reasonable storage costs associated therewith; or (3) to exercise any other right or remedy
conferred by this Agreement. Orange Tree shall, as soon as reasonably practicable, reimburse
the County for all costs and expenses reasonably incurred by the County in connection with any
Excluded Assets not removed from the Orange Tree System by Orange Tree within the
timeframe provided above.
ARTICLE III
ORANGE TREE AND DEVELOPER REPRESENTATIONS
SECTION 3.01 ORANGE TREE AND DEVELOPER REPRESENTATIONS.
Orange Tree and Developer represent, severally and jointly, as follows:
(A) The parties to this Agreement identified as Orange Tree and Developer are the
signatories or successors in interest to the signatories of the Development Agreements.
(B) Orange Tree and Developer are duly organized, validly existing and in good
standing in the State of Florida and are authorized to do business in this State and possess all
requisite corporate power and authority to enter into the transactions contemplated by this
Agreement.
(C) The execution, delivery and performance of this Agreement and the
consummation by Orange Tree and Developer of the transactions contemplated by this
Agreement have been duly authorized by all necessary corporate action on the part of Orange
Tree and Developer. Assuming due authorization, execution and delivery by the County, this
Agreement will be valid and enforceable against Orange Tree and Developer in accordance with
its terms, except to the extent that the enforceability thereof may be limited by an applicable
bankruptcy, insolvency, reorganization or other similar laws affecting creditors' rights generally,
or by the exercise of judicial discretion of a court of competent jurisdiction in accordance with
general principles of equity.
(D) There are no current actions, suits or proceedings, including enforcement actions,
at law or in equity pending or threatened against Orange Tree or Developer before any federal,
state, municipal or other court, administrative or governmental agency or instrumentality,
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domestic or foreign, which affect the Orange Tree System or the right and ability of Orange Tree
and Developer to make and perform this Agreement; nor are Orange Tree or Developer aware of
any facts which to their knowledge are likely to result in any such action, suit or proceeding.
Neither Orange Tree nor Developer is in default with respect to any permit, order or decree of
any court or of any administrative or governmental agency or instrumentality affecting the
Orange Tree System. Orange Tree and Developer agree and covenant that they have a continuing
duty to disclose to the County up to and including the Integration Date the existence and nature
of all pending judicial or administrative suits, actions, proceedings and orders which in any way
relate to the construction, operation or maintenance of the Orange Tree System.
(E) Neither Orange Tree nor Developer has dealt with any broker, salesman or finder
in connection with the transactions contemplated by this Agreement and no sales commissions or
finder's fees are due or payable as a result hereof.
(F) There are no existing and assignable third party warranties or ownership
documents that relate to completed or in process construction.
(G) Orange Tree is not in violation of any governmental law, rule, regulation, permit
or permit condition and all utility facilities comprising the Orange Tree System are in "good
working order and in compliance with all County, State and Federal requirements" as required by
Section 11 of the agreement dated May 28, 1991. On November 18, 2013, Orange Tree provided
the County with an engineer report which must be updated and provided to County not less than
thirty (30) days prior to the Integration Date. Neither Orange Tree nor Developer are aware of
any facts which would alter the conclusions and representations made to the County by Orange
Tree's engineer, Hartman Consultants, LLC, in the report provided to the County by Orange
Tree's engineer dated April 16, 2014.
(H) The management, officers and directors of Orange Tree and Developer have no
knowledge of facts adversely affecting the physical condition of the Orange Tree System which
are not readily observable or which have not been disclosed or provided to the County by Orange
Tree or Developer.
(I) There is no outstanding construction work in process as of the date that Orange
Tree and Developer sign this Integration Agreement.
(J) Subject to the exceptions set forth in Appendix F, there is no property or property
right (including easements and rights of way), used in the operation or required for use in the
operation of the Orange Tree System in the delivery of water or wastewater service to any
customer which is not owned by Orange Tree or Developer, or to which Orange Tree or
Developer do not possess rights to use such property. All such property has been disclosed to the
County in this Integration Agreement or an appendix hereto, and such property is to be
transferred on the Integration Date to County, at no cost, consistent with the terms of this
Integration Agreement and the Development Agreements.
(K) There are no regulatory compliance issues that are outstanding on the date of this
Integration Agreement.
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(L) Orange Tree represents to County that Orange Tree disposes of the reject
water /concentrate produced from the water treatment process, in whole or in part, by discharging
into a holding evapotranspiration pond adjacent to the water treatment plant and then a portion of
the flow mixed with rainwater then is pumped to the man-made lake known as Lake 4 -1 south of
the water treatment plant site, and this disposal is part of permitted water system operations.
Orange Tree and Developer further represent that Lake 4 -1 does not overflow onto the Valencia
Golf and Country Club ( "Golf Course "). The Valencia Golf & Country Club home owners
association within the Orange Tree PUD withdraws water from a withdrawal point closer to the
overflow than the withdrawal point of the Golf Course. The Valencia Golf & Country Club
homeowners association uses its water to irrigate the community park and other public green
spaces. Orange Tree and Developer represent that these activities are in compliance with DEP
permit no. FLA397792 -002. Orange Tree and Developer represent that there are no outstanding
mortgages encumbering this area. Orange Tree and Developer agree to provide consents to the
County to permit the continuation of this process in the volumes and at the locations where the
concentrate is currently being discharged. Orange Tree and Developer will provide the County
with documentation sufficient to show the homeowners or homeowners association have been
given prior written notice of such disposal.
(M) There are no affiliates, partnerships, corporations or other entities in which
Orange Tree or Developer own any equity interest or which own an equity interest in Orange
Tree or Developer which possesses any rights relating to the assets, tangible and intangible,
necessary to operate the Orange Tree System.
(N) No representation made by Orange Tree or Developer in this Agreement contains
any untrue statement of material facts or omits to state any material fact required to make the
statements herein contained not misleading.
The above representations shall survive the Integration Date for a period of six (6)
months, the fulfillment of which representations will remain a continuing obligation of Orange
Tree and Developer during such 6 (6) month period.
ARTICLE IV
INTEGRATION OF THE ORANGE TREE SYSTEM
SECTION 4.01. COUNTY TO ASSUME OWNERSHIP
(A) The County has notified Orange Tree of its intent to assume ownership of the
Orange Tree System on the Integration Date.
(B) The County agrees to undertake all rights and responsibilities for services related
to the Orange Tree System after the Integration Date. Orange Tree agrees that it is required to
pay any moneys owing for operation and management costs and expenses related to operation of
the Orange Tree System that are accrued and outstanding prior to and including the Integration
Date.
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(C) The County does not assume any debts, liabilities, obligations, or other financial
or service obligations of Orange Tree or Developer, except as may be expressly provided
hereunder or as may be otherwise provided in writing. The County does not assume and shall
not be liable for any expense, assessment, exposure, fine, penalty, liability, act or omission of
any kind whatsoever imposed or required by any third party, whether known or unknown,
contingent, liquidated or not liquidated, arising or accruing under contract, tort, or pursuant to
statute, rule, ordinance, law, regulation or otherwise, arising or accruing before the Integration
Date, regardless of when the claim is made. Orange Tree shall remain liable for and shall pay,
perform or discharge all such liabilities and obligations; provided Orange Tree is not hereby
limited in its right to contest in good faith any such liabilities or obligations. The County does
not assume, and is not liable for, any litigation pending at Integration Date involving Orange
Tree or the Orange Tree System. Orange Tree and Developer do not assume any debts,
liabilities, obligations, or other financial or service obligations relating to County operation of
the Orange Tree System accruing after the Integration Date and shall not assume nor be liable for
any expense, assessment, exposure, fine, penalty, liability, act or omission of any kind
whatsoever imposed or required by any third party, whether known or unknown, contingent,
liquidated nor not liquidated, arising or accruing under contract, tort, or pursuant to statute, rule,
ordinance, law, regulation or otherwise, based upon facts arising or accruing after the Integration
Date.
(E) Subject to the property and property rights set forth in Appendix F, Orange Tree
and Developer agree that all property and property rights, real and personal, used in the operation
of the Orange Tree System and to be conveyed to the County pursuant to this Integration
Agreement, shall be owned as of the Integration Date, by either Orange Tree or Developer, and
no other, with proper documents confirming such ownership or rights. As to the property and
property rights identified in Appendix F, Orange Tree shall use its best efforts to secure bills of
sale or other applicable transfer documents in form satisfactory to the County Attorney prior to
the Integration Date.
SECTION 4.02. SURVEY. The County shall have the option to order a new or
updated survey of any or all real property being insured by a title insurance policy hereunder.
Such new surveys shall be at the County's expense. Any such surveys shall (A) be received not
less than thirty (30) days prior to the Integration Date and updated thereafter as required by the
title insurer; (B) be satisfactory and sufficient for the title insurer to delete the standard
exceptions of title insurance coverage concerning encroachments, overlays, boundary line
disputes or any other adverse matter which would be disclosed by an accurate survey; (C) be
certified as of the then current date to the County, Orange Tree, Old Republic National Title
Insurance Company, Attorney's Title Fund Services, LLC, Nabors, Giblin & Nickerson, P.A., or
any other parties requested by the County; and (D) show the location of all improvements and
easements. Regarding material adverse matters, (i.e., matters that materially interfere with the
present use of the real property) disclosed by such surveys and disclosed to Orange Tree, Orange
Tree or Developer must use their reasonable best efforts to resolve such matters and assist in
removing exclusions to coverage on the title insurance commitment.
SECTION 4.03. TITLE VERIFICATION.
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(A) The County shall obtain, and deliver copies to Orange Tree of, title insurance
commitments for the real property, Treatment Plants Property and other material easement
interests as may be identified by the County, to be conveyed hereunder as set forth in Appendix
A and Appendix B under an ALTA form owner's title insurance policy from the title agent (the
"Title Policy "). Orange Tree and Developer will use their reasonable best efforts to cure any
encumbrances or defects that affect marketability of title to be conveyed to the County, real or
personal, prior to the Integration Date.
(B) The estate or interests to be insured by the Title Policy shall consist of all real
property identified in Appendix A and any easements identified to the insurer by the County,
which are necessary for operation of the Orange Tree System.
(C) As of the Integration Date, or upon issuance of any Title Policy after the
Integration Date, the owner's title insurance policy shall show marketable title to the insured
estate or interests vested in the County. All charges and costs for the issuance of the owner's title
insurance commitments and policy(ies) shall be paid by the County.
(D) Marketable title or other insurable interest shall be determined according to
applicable Title Standards adopted by authority of The Florida Bar and in accordance with law.
If the title commitment reflects title exceptions, the County shall thereafter within ten (10) days,
notify Orange Tree and Developer in writing specifying the defects. Orange Tree and Developer
shall use their reasonable best efforts to cure any encumbrances or defects that affect
marketability of title prior to the Integration Date.
SECTION 4.04. TRANSFER, ASSIGNMENT AND ASSUMPTION.
(A) Subject to Section 5.02, on the Integration Date, Orange Tree and Developer shall
transfer, assign and convey to the County by way of the Transfer, Assignment and Assumption
Agreement attached as Appendix G hereto (1) all of their rights, remedies, powers, title or
interest in the Orange Tree System, including any rights, remedies, powers, title or interest
arising by virtue of any franchise or certificate of authorization granted to Orange Tree or arising
by virtue of the County's assumption of the ownership, operation and control of the Orange Tree
System; and (2) all of their rights, privileges, easements, licenses, prescriptive rights, rights of
way, rights of use of public and private roads, highways, streets, railroads, or other areas owned
or used by Orange Tree or Developer in connection with the construction, reconstruction,
installation, expansion, maintenance and operation of the Orange Tree System.
(B) On and after the Integration Date, Orange Tree's obligation or responsibility to act
or serve as a provider of water or wastewater services as owner of the Orange Tree System will
terminate and the County will assume the obligation and responsibility to provide water and
wastewater services as a governmentally owned and controlled service provider within the area
previously served by Orange Tree. The County will assume the obligations and responsibilities
of Orange Tree under any agreements relating to the Orange Tree System which are expressly
assumed by the County pursuant to the Transfer, Assignment and Assumption Agreement,
attached hereto as Appendix G.
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(C) On the Integration Date, Orange Tree and Developer shall terminate the Amended
and Restated Lease Agreement, the term of which commenced on January 1, 2002, and waive the
provision contained in Section 3B of the Land Trust Agreement dated January 27, 1986,
allowing for the sale of trust property.
(D) Within thirty (30) days after the County executes this Agreement, the County
shall commence all requisite action to notify, apply for and seek the transfer of the permits and
governmental approvals, if transferable, described in Appendix D hereof, including, but not
limited to, the procedures referenced in Rule 62- 4.120, Florida Administrative Code (1990), 40
C.F.R. § 122.63(d) (1998) and 47 C.F.R. § 73 (1998) and the County, Orange Tree, and
Developer shall use all reasonable efforts to obtain the transfer of such permits. Orange Tree and
Developer shall timely cooperate and provide all reasonably necessary assistance in this
endeavor, including, but not limited to, execution at the Closing of the permit transfer
applications prepared by the County. Upon the Closing, the County shall assume all obligations
under the permits and governmental approvals necessary for the continued operation of the
Orange Tree Utility System. The County and Orange Tree acknowledge that the transfer of
permits cannot be effectuated until after the Closing of the transactions contemplated by this
Agreement, and as such shall constitute a post- Integration Date obligation of the parties until
completed. Charges and costs incurred by either Orange Tree and Developer, on the one hand, or
County, for the transfer of permits shall be paid by the respective parties.
SECTION 4.05. INTEGRATION DATE AND PLACE OF CLOSING;
PROCEDURES.
(A) The County and Orange Tree hereby establish the Integration Date as September
30, 2015, or such earlier date should the parties mutually agree or such later date should the
County require such time to complete due diligence activities or should County agree to give
Orange Tree or Developer additional time to fulfill its obligations under this Agreement.
(B) On the Integration Date, Orange Tree and Developer shall furnish a certificate
reaffirming the representations as set forth in this Agreement up to the Integration Date.
(C) On the date that this Integration Agreement is signed by each party, the parties
shall sign and deliver to escrow each of the pertinent transfer documents provided in the
appendices hereto. These transfer documents shall remain in escrow and be held by the escrow
agent, the County's special counsel, Nabors, Giblin & Nickerson, until the Integration Date or
such time as provided in the Escrow Agreement, attached hereto as Appendix H.
(D) In addition to the release of documents from escrow as described in section
4.05(C), on the Integration Date, Orange Tree and Developer shall deliver to the County:
(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;
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(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
(4) The consents and other documentation relating to concentrate disposal
described in section 3.01(L) hereof.
(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. "Net
excess capacity" will be determined as follows:
(1) One of the following independent professional engineering firms will be
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: (a) HoleMontes or
(b) Agnoli, Barber, and Brundage
(2) The total number of remaining commitments for capacity made to third
parties by Orange Tree, other than commitments to Developer, will be subtracted from total
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excess to determine net excess capacity. In no event will Developer be entitled to credit for more
ERCs than are necessary to service the Orange Tree PUD Area.
Once the net excess capacity is determined, the corresponding number of
Equivalent Residential Connections ( "ERCs ") shall be established, and Developer, Orange Tree,
or their successors and assigns, shall be entitled to that number of ERCs going forward such that
any change in the impact fee rate schedule will not affect the number of ERCs provided to
Developer, Orange Tree, or their successors and assigns.
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
attached hereto as Appendix I. 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 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.
(A) Pursuant to the Development Agreements, as amended by Ordinance 12 -09, at
such time as the County discontinues operation of the water treatment plant or the wastewater
treatment plant located on the Treatment Plants Property, and the provisions of section 10.01 of
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Ordinance 2012 -09 are satisfied by Orange Tree and Developer, the County will vacate that
portion of the Treatment Plants Property no longer required by the County.
(B) Upon discontinuance of the water treatment plant or the wastewater treatment
plant, the County shall perform an environmental audit relating to the portion of the Treatment
Plants Property reverting to Developer of the same scope as the environmental audit provided to
the County by Developer and Orange Tree prior to the Integration Date, and the County agrees to
remedy any environmental issues at its own cost; and (b) the County agrees to dismantle and
remove all improvements identified by the County as no longer being used or useful in the
continued operation of the facilities to remain on the Treatment Plants Property, at the County's
cost.
SECTION 7.02. FURTHER ASSURANCES.
(A) Orange Tree and Developer shall, after the Integration Date, upon reasonable
request of the County and at no cost to the County, execute, assign, acknowledge and deliver, or
cause to be executed, assigned, acknowledged and delivered, all such further documents, acts,
deeds, easements, assignments, transfers, powers of attorney and assurances as may be
reasonably required in order to implement and perform any of their obligations set forth in this
Agreement and the Development Agreement including, but not limited to, such easements as
may be necessary for County to serve additional areas within the Orange Tree PUD not served
by Orange Tree on the Integration Date.
(B) Orange Tree and Developer hereby agree that they shall require any affiliate,
partnership or commonly -held corporation in which either Orange Tree or Developer own a
controlling interest (equity, partnership or otherwise) to provide to County at no cost, prior or
subsequent to the Integration Date, such easements, deeds, assignments, consents, or other things
or acts as may be reasonably required by the County to operate the Orange Tree System
subsequent to the Integration Date.
ARTICLE VIII
GENERAL PROVISIONS
SECTION 8.01. TERM OF AGREEMENT. The term of this Agreement shall
commence upon approval and execution of this Agreement by the parties and shall terminate
upon conveyance of the Orange Tree System to the County on the Integration Date except as to
rights or obligations which expressly extend beyond the Integration Date pursuant to the terms of
this Agreement.
SECTION 8.02. DISPUTE RESOLUTION.
(A) The parties agree to resolve any dispute related to the interpretation or
performance of this Agreement in the manner described in this Section 8.02. Either party may
initiate the dispute resolution process by providing written notice to the other party.
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(B) After transmittal and receipt of a notice specifying the area or areas of
disagreement, the parties agree to meet at reasonable times and places, as mutually agreed upon,
to discuss the issues.
(C) If discussions among the parties fail to resolve the dispute within 60 days of the
notice described in Section 8.02(A) hereof, the parties shall appoint Robin Doyle to act as a
mediator. If Robin Doyle is unable to act as mediator, the parties shall appoint a mutually
acceptable neutral third party mediator. If Robin Doyle is unavailable and the parties are unable
to agree upon a mediator, the County will request appointment of a mediator by the Chief Judge
of the Circuit Court of the Twentieth Circuit in and for Collier County, Florida. The mediation
contemplated by this Section 8.02(C) is intended to be an informal and non - adversarial process
with the objective of helping the parties reach a mutually acceptable and voluntary agreement.
The decision - making shall rest solely with the parties. The mediator shall assist the parties in
identifying issues, fostering joint problem- solving, and exploring settlement alternatives. It is
understood that any settlement requires approval of the Board of County Commissioners of
Collier County and the board of directors of Orange Tree and Developer.
(D) If the parties are unable to reach a mediated settlement within 120 days of the
mediator's appointment, either party may terminate the settlement discussions by written notice
to the other party. In such event, either party may initiate binding arbitration pursuant to the
Florida Arbitration Code within 120 days of the notice terminating the settlement discussions. In
the event arbitration is invoked by either party, the parties shall appoint one mutually acceptable
arbitrator. If the parties are unable to agree to an arbitrator, the County will request appointment
of an arbitrator by the Chief Judge of the Circuit Court of the Twentieth Circuit in and for Collier
County, Florida. Failure by the party initiating the dispute resolution procedure to commence
arbitration within the 120 day period shall be deemed to constitute an acceptance of the
interpretation or performance of the other party.
SECTION 8.03. ENTIRE AGREEMENT. This Agreement, together with the
terms of the Mediated Settlement Agreement entered between the parties in the Pending
Litigation, constitutes the entire agreement among the parties pertaining to the subject matter
hereof.
SECTION 8.04. AMENDMENTS AND WAIVERS. No amendment,
supplement, modification or waiver of this Agreement shall be binding unless executed in
writing by all parties hereto. No waiver of any of the provisions of this Agreement shall be
deemed or shall constitute a waiver of any other provision of this Agreement, whether or not
similar, unless otherwise expressly provided. Each such amendment, supplement, modification
or waiver of this Agreement shall be filed with the Clerk of the Circuit Court of Collier County.
SECTION 8.05. NOTICES. All notices, certificates or other communications
hereunder shall be sufficiently given and shall be deemed given when hand delivered or mailed
by registered or certified mail, postage prepaid, to the parties at the following addresses:
Orange Tree: Stephen Lowitz Developer: Roberto Bollt
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3521 North 53rd Avenue
Hollywood, Florida 33021
With copy to: Burt Saunders, Esq.
8889 Pelican Bay Boulevard
Suite 400
Naples, Florida 34108
County: Dr. George Yilmaz
Administrator
Collier County Public Utilities Division
3301 East Tamiami Trail
Naples, Florida 34112
With copy to: Jeffrey A. Klatzkow, Esq.
Collier County Attorney
3299 East Tamiami Trail, Suite 800
Naples, Florida 34112
With another copy to: Brian Armstrong, Esq.
Nabors, Giblin & Nickerson, P.A.
1500 Mahan Drive, Suite 200
Tallahassee, Florida 32308
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4500 Executive Drive
Suite 110
Naples, Florida 34119
Either of the parties may, by notice in writing given to the others, designate any
further or different address to which subsequent notices, certificates or other communications
shall be sent. Any notice shall be deemed given on the date such notice is delivered by hand or
facsimile transmission or three days after the date mailed.
SECTION 8.06. PROPERTY TAXES. Orange Tree shall be required to escrow
through the Title Agent for payment to the Tax Collector of Collier County an amount equal to
the current ad valorem taxes and assessments due (real and personal), prorated through the
Integration Date in accordance with section 196.295, Florida Statutes. The County shall
cooperate with Orange Tree in its effort to recover any taxes paid in excess of that due through
the Integration Date.
SECTION 8.07. ACCOUNTS RECEIVABLE; CUSTOMER DEPOSITS.
(A) Orange Tree hereby agrees to cooperate with the County to ensure an orderly
transition of all of its customers with respect to billing and customer service activities including,
but not limited to, working with the County on a compatible format for transfer of customer data.
(B) The parties agree that the County will be entitled to all customer billings with
respect to water and wastewater collection and treatment services for the period on or after the
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Integration Date, and Orange Tree will be entitled to all such billings prior to the Integration
Date, such prior billings being considered an Excluded Asset under this Agreement.
(C) The County, Orange Tree and the Developer agree that customer confusion
concerning the transition of the Orange Tree System to County ownership will be reduced if the
customers receive their initial bill for services rendered by the County (the "Initial Bill ") in the
same billing cycle previously used by Orange Tree. The parties agree that the Integration Date is
September 30, 2015 . To avoid customers receiving two bills, one from Orange Tree and one
from the County, for services rendered during such billing cycle, the County, Orange Tree and
the Developer agree that Orange Tree shall read all customer meters at least one day prior to the
Integration Date. Orange Tree shall use meter reading data collected to calculate the revenue to
which Orange Tree is entitled for services rendered prior to the Integration Date (the "Unbilled
Revenue ") and provide such information to the County, including all support data used by
Orange Tree to calculate such revenue. The County shall initially read customer meters on the
date or dates indicated by Orange Tree's established billing cycle and the County shall render the
Initial Bill to customers. As payments are received by the County after the Integration Date from
customers related to the Initial Bill, the County shall forward Unbilled Revenue associated with
each customer account to Orange Tree, less an administrative fee of five percent (5 %) for each
such payment.
(D) Orange Tree shall transfer by electronic transfer on the Integration Date, all
customer deposits and accrued interest thereon through the Integration Date. The County will
credit all customer deposits and accrued interest against the Initial Bill rendered by the County to
customers. The County shall transfer to Orange Tree the amount of customer deposits and
accrued interest so credited, less the five percent (5 %) administrative fee.
(E) If Orange Tree receives a payment after the Integration Date from a former
customer associated with the Initial Bill, such payment shall be delivered to the County within
seven (7) business days of Orange Tree's receipt of such payment, without any right of setoff.
SECTION 8.08. CONNECTION CHARGES.
(A) Sums collected by Orange Tree in the ordinary course of business for future
connections to the Orange Tree System in the form of contributions in aid of construction,
refundable advances, connection charges, including capacity, deferred standby fees and service
availability charges of any type (collectively referred to herein as "Connection Charges ") up to
the Integration Date shall remain Orange Tree's sole and separate property. .
(B) All sums collected after the Integration Date relative to the use of, or connection
to, the Orange Tree System shall be paid to the County, with no claim of Orange Tree therefore.
SECTION 8.09. PROFESSIONAL FEES; COSTS. Each party has been
responsible for securing its own counsel for representation in connection with the negotiation of
this Agreement, and all other matters associated with performance, termination or the closing of
the conveyance contemplated hereunder; and each party shall be responsible for the payment of
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the fees of its own attorneys, bankers, engineers, accountants, and other professional advisors or
consultants in connection therewith.
SECTION 8.10. TRANSITION COORDINATION. The parties acknowledge
and agree that they must prepare for an orderly and efficient transition of operations, customer
service and billing activities to the County and, as such, the County and Orange Tree will take all
steps necessary and exert their respective best efforts, to include information sharing, test
programming and test billing, document sharing and such other activities, so as to create a
seamless transition of such activities on or around the Integration Date.
SECTION 8.11. NOTICES; COMMUNICATIONS. Orange Tree, Developer and
County shall work collaboratively to accomplish the goals of this Agreement and the related
timing and content of notices, public statements and communications of any nature with the
public or any customer or customers of Orange Tree regarding the Orange Tree System
Integration contemplated by this Agreement. Orange Tree and Developer shall timely file any
information or applications as may be required by the Collier County Water -Sewer Regulatory
Authority and the County shall issue notices required by Florida law regarding the County's
consideration of the Integration Agreement.
SECTION 8.12. RISK OF LOSS. At all times prior to and through the Integration
Date, Orange Tree shall maintain adequate fire and extended insurance coverage for the cost of
any repairs to the Orange Tree System that may be required by casualty damage. The risk of loss
during the said period of time shall fall upon Orange Tree. The risk of loss shall pass to the
County at the Integration Date.
SECTION 8.13. NO THIRD PARTY BENEFICIARIES. This Agreement is
solely for the benefit of the parties hereto and no other causes of action shall accrue upon or by
reason hereof to or for the benefit of any third party who or which is not a signatory hereto.
SECTION 8.14. ASSIGNMENT OF THIS AGREEMENT. This Agreement
shall not be assigned in whole or in part by either party, and any attempt by either party to assign
shall be void ab initio. Nothing in this Section shall affect the right to assign ERCs as set forth
in Section 5.02.
SECTION 8.15. BINDING EFFECT. To the extent provided herein, this
Agreement shall be binding upon the parties, their respective successors and assigns and shall
inure to the benefit of the parties, their respective successors and assigns.
SECTION 8.16. SEVERABILITY. In the event any provision of this Agreement
shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall
not invalidate or render unenforceable any other provision hereof.
SECTION 8.17. EXECUTION IN COUNTERPARTS. This Agreement may be
executed in several counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
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SECTION 8.18. APPLICABLE LAW AND VENUE. This Agreement shall be
governed by and construed in accordance with the laws of the State of Florida. Venue for any
action or proceeding to construe or enforce the provisions of this Agreement shall be in the
Twentieth Judicial Circuit in and for Collier County, Florida.
SECTION 8.19. ATTORNEY'S FEES, COSTS AND EXPENSES. The parties
executing this Agreement, including their respective successors and assigns, shall be entitled to
reasonable attorney's fees and costs, including appellate attorney's fees and costs, incurred as a
prevailing party in connection with any litigation under this Agreement, and also including
attorney fees and costs incurred as a prevailing party in exercising or enforcing the rights to
attorneys' fees and costs provided or incorporated herein.
SECTION 8.20. INTENT; BINDING EFFECT. This Agreement is intended to
identify, specify and cant' out certain procedures, covenants, obligations and responsibilities
arising from the Development Agreements, Collier County Ordinance Nos. 87 -13, 12 -09 and
other applicable ordinances, and the 1986 Settlement and Zoning Agreement concerning the
provision of water and wastewater service to the Orange Tree Service Area.
SECTION 8.21. EXCULPATION OF TRUSTEE. Trustee has executed this
Agreement solely in the capacity as trustee and not individually. Therefore, notwithstanding
anything to the contrary contained in this Agreement, the parties agree that (i) all covenants,
agreements, undertakings and any other obligations of Orange Tree or Developer, or pursuant to
any documents, instruments or agreements provided hereto, or which involve the Orange Tree
System or any portion thereof, are not intended to impose, and shall not be construed as
imposing, any personal or other liability upon Trustee, individually; (ii) no party shall have any
claim, demand, action or cause of action whatsoever against Trustee, individually, arising out of
or relating to this Agreement or the transaction contemplated hereby.
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IN WITNESS WHEREOF, the Board of County Commissioners Collier County, Florida, as the
Governing Body of Collier County and Ex -Officio the Governing Board of the Collier County
Water -Sewer District, has caused this Utility System Integration Agreement to be executed and
delivered this day of .2015.
BOARD OF COUNTY CONIlvIISSIONERS
COLLIER COUNTY, FLORIDA, AS THE
GOVERNING BODY OF COLLIER COUNTY
AND THE EX- OFFICIO GOVERNING
BOARD OF THE COLLIER COUNTY
WATER -SEWER DISTRICT
BY:
TIM NANCE, CHAIRMAN
ATTEST:
DWIGHT E. BROCY, Clerk
Deputy Clerk
Approved as to form and legality:
BY:
Scott R. Teach
Deputy County Attorney
19
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7/7/2015 16.K.5.
IN WITNESS WHEREOF, Orange Tree Utility Co. has caused this Integration
Agreement to be executed and delivered this day of , 2015.
WITNESSES: ORANGE TREE UTILITY CO., a Florida
Corporation (L.S.)
Signature
Printed Name
Signature
Printed Name
STATE OF FLORIDA
COUNTY OF COLLIER
By:
Signature
Printed Name
Title
The foregoing instrument was acknowledged before me this day of
, 2015, by , as
on behalf of Orange Tree Utility Co., a Florida corporation, who is personally known to
me, or who has produced as identification.
Signature of Notary Public
Printed Name of Notary
Notary Public — State of Florida
Commission No.:
20
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7/7/2015 16. K. 5.
IN WITNESS WHEREOF, Orangetree Associates has caused this Integration
Agreement to be executed and delivered this day of , 2015.
WITNESSES: ORANGETREE ASSOCIATES, a Florida
General Partnership (f/k/a Orangetree
Associates, a Joint Venture)
By: SPRINGHILL OF COLLIER
COUNTY, INC., a Florida corporation as
General Partner
By:
Signature Signature
Printed Name
Printed Name
Signature Title
Printed Name
By: ENTERPRISES OF HOLLYWOOD,
INC., a Florida corporation as General
Partner
By:
Signature Signature
Printed Name Printed Name
Signature Title
Printed Name
21
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STATE OF FLORIDA
COUNTY OF COLLIER
The foregoing instrument was acknowledged before me this day of
, 2015, by , as
on behalf of Springhill of Collier County, Inc. and Enterprises of Hollywood, Inc., Florida
corporations, as General Partners of Orangetree Associates, who is personally known to
me, or who has produced as identification.
Signature of Notary Public
Printed Name of Notary
Notary Public — State of Florida
Commission No.:
IN WITNESS WHEREOF, ROBERTO BOLLT, as Successor Trustee of the Land
Trust Agreement dated January 27, 1986, recorded at Official Records Book 1347, Page 2331,
and amended June 26, 1996 and recorded in Official Records Book 2250, Page 1827, of the
Public Records of Collier County, Florida, has caused this Integration Agreement to be executed
and delivered this day of , 2015.
WITNESSES:
By:
Signature Signature
ROBERTO BOLLT, as Successor Trustee
Printed Name of the Land Trust Agreement dated January
27, 1986, recorded at Official Records Book
1347, Page 2331, and amended June 26,
1996 and recorded in Official Records Book
Signature 2250, Page 1827, of the Public Records of
Collier County, Florida
Printed Name
22
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STATE OF FLORIDA
COUNTY OF COLLIER
The foregoing instrument was acknowledged before me this day of
, 2015, by Roberto Bollt, as Successor Trustee of the Land Trust Agreement
dated January 27, 1986, who is personally known to me, or who has produced
as identification.
Signature of Notary Public
Printed Name of Notary
Notary Public — State of Florida
Commission No.:
23
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