WHOLESALE WASTEWATER AND RECLAIMED WATER INTERLOCAL AGREEMENT

Transcription

1 WHOLESALE WASTEWATER AND RECLAIMED WATER INTERLOCAL AGREEMENT THIS AGREEMENT, by and between the City of Ocala, a Florida municipal corporation ( City ), and Marion County, a political subdivision of the State of Florida, by and through the Board of County Commissioners of Marion County, Florida ( County ) is entered into effective April 17, 2012 (the Effective Date even though it may be executed on different dates), In consideration of the mutual covenants herein contained and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows. 1. Definitions Charges All amounts to be paid by County hereunder including, without limitation, those set forth in paragraph City Code - The Code of Ordinances of the City of Ocala, Florida, as it may be amended from time to time City Ocala Meadows Agreement The agreement between City and Ocala Meadows referred to in paragraph City Standards The standards established by City to govern the construction, maintenance and operation of the City Systems, including those set forth in the City Code City Systems The City Reclaimed Water System and the City Wastewater System Commencement Date The date defined as such in paragraph Connection Facilities Each party s System extension and expansions including, without limitation, lines, mains, storage facilities, pumping and lift stations, tanks and other related facilities required to connect, at each Point of Connection, a City System to a County System, and to provide to County Reclaimed Water or Wastewater capacity pursuant to this Agreement County-Ocala Meadows Agreement The Agreement between County and Ocala Meadows referred to in paragraph County Systems The County Wastewater System and County Reclaimed Water System Customers The customers of the County Wholesale Area that will utilize the Wastewater Capacity or Reclaimed Water provided by City under this Agreement GPD Gallons per day, calculated pursuant to applicable regulations of the Florida Department of Environmental Protection Meters The master Reclaimed Water and Wastewater meters to be installed pursuant to this Agreement to measure flows between County Systems and City 1

2 Systems for purposes of billing, and any separate Reclaimed Water meters that City installs on the Ocala Meadows Property, but not any separate Wastewater meters County installs at its Customers property Ocala Meadows - Ocala Meadows Farms Ltd., a Florida limited partnership, and its successors in title as to the Ocala Meadows Property Ocala Meadows Property The real property described on the attached Exhibit A Point of Connection - A point where City delivers Reclaimed Water to County, and County delivers Wastewater to City, determined as set forth elsewhere in this Agreement. There will be separate Reclaimed Water and Wastewater Points of Connection for service to the Wholesale Area Reclaimed Water Wastewater treated to public access standards, as defined in Chapter , Florida Administrative Code Reclaimed Water System A Reclaimed Water system owned, operated and maintained by a party hereunder, together with all extensions and expansions thereof and replacements thereto. It shall include the Reclaimed Water distribution system, storage facilities, pumping stations, tanks and all other related facilities required for the proper operation, maintenance, extension and expansion of a Reclaimed Water System. It does not include any facilities located on the Ocala Meadows Property downstream from the location of any Meter on such property (except to the extent they are owned by City or County) Regulations All applicable federal, state or local laws, regulations or ordinances, as well as terms and conditions of the Territorial Agreement (subject to paragraph 11 of this Agreement), which individually or collectively regulate in any way the provision of wholesale Reclaimed Water or Wastewater service under this Agreement Service Area A geographic area in which County or City is permitted to provide Wastewater and potable water services pursuant to the Territorial Agreement. As set forth in the Territorial Agreement, City has a Service Area and County has a Service Area Territorial Agreement The City of Ocala/Marion County Water and Wastewater Service Territorial Agreement (County Contract No. 96-2) between City and County dated September 24, Utility Services The Reclaimed Water and Wastewater capacity being provided by City to County for service to the Wholesale Area Wastewater - The combination of liquid and water-carried pollutants from residences, commercial buildings, industrial plants, and institutions Wastewater System - A Wastewater system owned, operated and maintained by a party hereunder, together with all extensions and expansions thereof and replacements thereto. The term shall include the Wastewater collection system, force mains, pumping stations, treatment plants, effluent disposal facilities and all other related facilities required for the proper operation, maintenance, 2

3 extension and expansion of a Wastewater System. It does not include any facilities located on Customers properties (except to the extent they are owned by County) Wholesale Area The Ocala Meadows Property and the real property described in the attached Exhibit B. 2. County s Wholesale Purchase; Rates/Charges County agrees to purchase up to 150,000 GPD of Wastewater capacity from the City at the rate of $6.90 per 1,000 gallons. City agrees to sell up to such capacity to County at that rate. City has no obligation to provide more than 150,000 GPD of Wastewater capacity unless the parties mutually agree to amend this Agreement. Commencing with the third anniversary of the Commencement Date, City may increase the foregoing rate for Wastewater at the same time as it increases Wastewater rates for City retail commercial customers (i.e., all City Wastewater commercial customers other than wholesale customers such as County) but in no event may the percentage increase be more than the percentage increase in the rate that City charges its retail commercial customers County agrees to purchase at least 150,000 GPD of Reclaimed Water from the City at the rate of $0.09 per 1,000 gallons. City agrees to sell such capacity to County at that rate. City has no obligation to provide more than 500,000 GPD of Reclaimed Water unless the parties mutually agree to amend this Agreement. The initial capacity required will be 150,000 GPD and increased amount will be coordinated with City County shall be responsible to ensure that Wastewater transmitted to City from County s lines pursuant to this Agreement satisfies all of City s industrial pretreatment standards City may bill County for additional Charges (e.g., CVWS) imposed pursuant to City Code (as if County was the user of the City Wastewater System) based upon a failure to comply with City s discharge standards, or any other City Charges that County may be subject to (as if County was the user of the City Wastewater System) as set out in Chapter 70 of the City Code County shall not permit any significant industrial user (as defined in the City Code) to discharge Wastewater into the City Wastewater System without first: a. Providing City with at least sixty (60) days prior written notice; and b. Entering into an agreement with City pursuant to which County will be responsible for administering City s industrial pretreatment standards against all significant industrial users transmitting Wastewater into the City System. Such agreement shall be consistent with the requirements of applicable Regulations and the then-current edition of the Guidance Manual for Multijurisdictional Pretreatment Programs published by the United States Environmental Protection Agency, and shall be in form and 3

4 3. Term. substance acceptable to City and County in their reasonable discretion County agrees that City may pass-through additional charges to County resulting from changes of State or Federal Regulations concerning treatment standards for Wastewater or standards for Reclaimed Water which increase the City s costs of treating Wastewater or providing Reclaimed Water. City may not pass through charges resulting from fines imposed against City for City s violation of such regulations, unless such violations were caused by County or County s Customers (e.g., based upon a violation of discharge standards as set forth in paragraph 2.3) The Utilities Services may only be used by County s Customer s within the Wholesale Area, except upon the written consent of City The term of this Agreement shall run until seven (7) years from the Commencement Date referenced in paragraph 5. The parties by mutual agreement may modify the term at any time Upon the expiration of the term, or early termination (except as set forth in paragraph 3.2.3), of this Agreement: The County s Customers within the Wholesale Area served by County, shall, at the option of City, become City customers for Utility Services. a. In order to exercise the option recited in paragraph 3.2.1, City must provide written notice to County of its intent to exercise such option on or before July 1, 2018, if the term expires, or if there is an early termination of this Agreement, within 30 days of the date of termination. If City does not timely provide such notice to County, such Customers shall continue to be County Customers following the term of this Agreement. b. If City provides such notice, County shall convey to City, as is and with no representations or warranty (except a warranty of title), the Connection Facilities and other utility facilities, previously utilized by County to provide service to such Customers. Such conveyance shall occur upon the expiration of the term of, if there is an early termination, within 30 days of City s provision of notice under paragraph a. c. At the time of such conveyance, City shall pay to County, County s actual costs incurred in constructing the Connection Facilities hereunder, and all other Connection Facilities hereafter constructed by or on behalf of County to provide service to the Customers within the Wholesale Area, to the extent that County actually paid such amounts (i.e., City shall not be required to pay such amounts to County in the event that they were paid by others, such as Ocala Meadows or other Wholesale Area Customers). County shall advise City of such amount, together with the basis for the calculation thereof, within 10 days of City s written request therefor; the time 4

5 for City to provide notice under paragraph 3.2.1a is extended for each day beyond such 10-day period that County does not provide such information. d. At the time of the conveyance, County shall assign to City, and City shall assume all obligations of County under the following: 1). The County-Ocala Meadows Agreement. 2). All developer agreements or similar documents entered into between County and other County Customers within the Wholesale Area. County shall provide City with copies of such documents within 10 days of City s written request therefor; the time for City to provide notice under paragraph a is extended for each day beyond such 10-day period the County does not provide such information If City does not exercise the option under paragraph 3.2.1, City shall discontinue providing Utility Services hereunder The provisions of paragraph providing City with the option referred to therein upon early termination of this Agreement shall not apply (and therefore City shall not have such option), if: a. County terminates this Agreement under paragraph b. Either party terminates this Agreement under paragraph 5.2 c. Either party terminates this Agreement under paragraph Construction and Ownership of Required Connection Facilities The fulfillment of this Agreement necessitates the construction of Connection Facilities both within the City s Service Area and within the County s Service Area, which Connection Facilities will be joined at the respective Points of Connection for the Utility Services. The Point of Connection for each Utility Service shall be located at points generally proximate to the mutual boundary line dividing the parties current respective Service Areas, as set forth in the attached Exhibit C Each party shall be responsible for securing all easements and rights-of-way necessary for the construction of the Connection Facilities within its respective Service Areas so as to avoid delaying construction beyond the time set forth in paragraph City shall design and permit the Connection Facilities including those to be constructed within the County s Service Area. County shall join in all permit applications concerning the Connection Facilities to be constructed within the County s Service Area. Such design shall be subject to County s review and approval, which approval shall not be unreasonably withheld. City shall complete the design and permitting by August 1, County will contract for the construction of the Connection Facilities. 5

6 4.5. Construction Costs Notwithstanding Section 5.4 of the Territorial Agreement (which would require County to pay for all the Connection Facilities), City and County shall share in the cost in constructing the Connection Facilities as set forth herein The parties have estimated the construction cost for all of the Connection Facilities to be $1,320, County will pay $1,000, of such estimated construction costs (which may be paid all or in part by funds it receives from Ocala Meadows pursuant to the County-Ocala Meadows Agreement) Upon exhaustion of the above-referenced $1,000,000.00, County will begin submitting invoices to City for the value of periodic additional invoices received from the construction contractor. City agrees to pay to County such invoices, within 45 days of receipt of County s written invoice therefore. Failure of the City to pay such invoice within the foregoing time period shall subject the City to the same late payment provisions County is subject to under paragraph 6.6, unless City avails itself of the same provisions available to County under paragraph In the event construction costs exceed $1,320,000.00, County agrees to share any additional construction costs on a 50/50 split up to a cap of $1,500, In the event: a. The bid for the construction costs exceeds $1,500,000, either party may terminate this Agreement by providing written notice thereof to the other party unless, prior to the date of such notice, either party agrees to pay the costs in excess of $1,500,000 or the parties amend this Agreement. The written notice of termination may be provided not less than 10 days after: (a) the other party has delivered written notice inquiring as to the terminating party s intent; or (b) the terminating party has delivered written notice to the other party advising the other party that the terminating party is considering terminating this agreement. ( Terminating party refers to the party that eventually serves a notice of termination). b. If, as a result of change orders, the cap of $1,500,000 is exceeded, each party shall pay the amount of the change orders within its Service Area that cause the construction costs to exceed $1,500,000. If there are multiple change orders within each Service Area that caused the construction costs to exceed $1,500,000, the costs shall be shared pro-rata with each party paying a percentage equal to the percentage that the increased costs caused by change orders within its Service Area bears to the entire increase in costs caused by all change orders County shall cause the construction of all Connection Facilities to be substantially completed by June 30,

7 4.7. The dates for completion of design and permitting under paragraph 4.3, and for the completion of construction under paragraph 4.6, may be extended to accommodate a party s requirements to obtain easements, rights-of-way or permitting for the Connection Facilities The Connection Facilities referred to in paragraphs 4.1 through 4.7 do not include any of Connection Facilities that are necessary only to provide Utility Services to portions of the Wholesale Area West of the Ocala Meadows Property. Such Connection Facilities shall be designed, permitted and constructed by County, at its sole cost and expense, as and when County determines they are necessary Each party shall own the Connection Facilities located within its own Service Area Upon completion of construction of the Connection Facilities, each party shall be responsible, during the term of this Agreement, for the operations, repairs (including replacement) and maintenance of its own Connection Facilities. 5. Commencement Date The Commencement Date of this Agreement shall be: July 1, 2013, notwithstanding that Ocala Meadows may not request Utility Service until thereafter; or Such earlier date that Ocala Meadows requests Utility Service hereunder (provided that the Connection Facilities are completed by such date), in which event City and County shall execute an amendment to this Agreement acknowledging this earlier date Notwithstanding the foregoing, in the event that County is not providing any Utility Service to Ocala Meadows under this Agreement by July 1, 2014, either party may terminate this Agreement by providing written notice to the other party, which written notice must be delivered before County thereafter begins providing such Utility Service. 6. Meters, Reading and Billing City shall provide separate Meters for each Utility Service provided to County The size of all Meters shall be determined by City and shall be consistent with prudent industry practices. The Meters shall be located at the Points of Connection, or at such other location as mutually agreed upon by the parties; further, an additional Reclaimed Water Meter shall be located on the Ocala Meadows Property The Meters shall indicate flow with an error not to exceed plus or minus five percent of full-scale reading. City shall test the accuracy of the Meters, using certified vendors, at least once a year. Either party may have a Meter tested at additional intervals at its own expense. If a Meter is found to be in error exceeding the tolerance set forth above, the Meter shall be recalibrated at City s expense. 7

8 6.4. City shall have the right to access all Meters related to this Agreement, regardless of their location, for reading and repair purposes. County shall not interfere with such right of City or with the operation of the Meters except as permitted under paragraph City shall establish as of the Commencement Date, the day of the month when the Meters shall be read (the Read Date ), and thereafter the Meters shall be read on or about the same day of each month for purposes of determining the Charges. City may change the Read Date by providing at least 30 days notice to County, as long as such change does not result in double billing to County All Charges are due and shall be paid by County as required in Section of the City Code. Charges not timely paid will be assessed a late payment charge and delinquent collection charge pursuant to Section of the City Code. 7. Reclaimed Water Reclaimed Water sold to County hereunder will be supplied from the City Reclaimed Water System will be of the same quality as the Reclaimed Water furnished by City to its customers within the municipal limits of City All Reclaimed Water delivered by City shall meet all Regulations in effect for City at the time of delivery. Failure of City to provide Reclaimed Water of the quality required by this paragraph shall be deemed a breach of this Agreement; however, an allegation of failure to meet any such Regulations which is challenged by City, shall not be deemed a breach of the Agreement unless there is a final determination by the Florida DEP that there has, in fact, been noncompliance with such Regulations. 8. Contingencies Within sixty (60) days of the Effective Date of this Agreement, City shall negotiate in good faith the City-Ocala Meadows Agreement with Ocala Meadows addressing the use of Reclaimed Water and matters related thereto. In the event that City and Ocala Meadows have not executed a City-Ocala Meadows Agreement, acceptable to City in its sole discretion, within the foregoing time period, City may terminate this Agreement by providing written notice thereof to County, which written notice must be provided within ninety (90) days of the Effective Date of this Agreement; a failure to provide the written notice of termination within the foregoing time period shall be deemed a waiver of the right to terminate Within sixty (60) days of the Effective Date of this Agreement, County shall negotiate in good faith the County-Ocala Meadows Agreement with Ocala Meadows addressing Ocala Meadows contribution to County of the County s cost of constructing the Connection Facility, County providing Ocala Meadows with Utility Services, and matters related thereto. In the event that County and Ocala Meadows have not executed a County-Ocala Meadows Agreement, acceptable to County in its sole discretion, within the foregoing time period, County may terminate this Agreement by providing written notice thereof to City, which written notice must be provided within ninety (90) days of the Effective Date of this Agreement; a failure to provide the written notice of 8

9 termination within the foregoing time period shall be deemed a waiver of the right to terminate. 9. Disclaimer of Third Party Beneficiaries. This Agreement is solely for the benefit of the parties hereto and nothing in this Agreement express or implied shall be construed to give any right, remedy or claim to any person not a party hereto. 10. Time of the Essence. Time is of the essence in the performance of the duties and obligations of the parties contained in this Agreement. 11. Default Events of Default. Upon the happening of one or more of the events set forth below (any of which is referred to hereinafter as an Event of Default ), the nondefaulting party shall have any and all rights and remedies hereinafter set forth: If County should fail to pay any Charge when it becomes due and such failure continues for ten days after City provides County with written notice of such failure If County should fail to pay any Charge within ten days of its Due Date under paragraph 6.6 of this Agreement more than three (3) times during any of twelve (12) consecutive months (notwithstanding City s acceptance of any Charge payment from County) If either party violates any other term, condition or covenant herein on the part of the party to be performed and such failure continues for thirty days after the non-defaulting party provides the defaulting party with written notice of such failure; provided, however, if the default is one which cannot be cured within thirty days, the defaulting party will have such additional time as maybe required so long as the defaulting party diligently pursues the remedy If either party, after having violated this Agreement in a manner that threatens the health of the Customers of the other party, or exposes such other party to risk of serious and imminent sanctions, penalties, litigation or administrative proceedings by applicable governmental authorities within the preceding twelve months, again violates this Agreement in substantially the same manner Non-Defaulting Party May Cure Defaulting Party s Defaults. If either party shall default in the performing of any covenant or condition of this Agreement and fails to cure such default within the time provided therefor under paragraph , the non-defaulting party may, at its sole discretion, perform the same for the account of the defaulting party and the defaulting party shall reimburse the non-defaulting party for any expense incurred therefore together with interest thereon at the statutory rate. This provision imposes no duty on the nondefaulting party nor waives any right of the non-defaulting party otherwise provided in this Agreement Remedies upon County s Default. If any Event of Default occurs by County, City shall have the right, at the option of City, to pursue one or more of the following remedies, in addition to all other remedies available at law or equity: 9

10 Terminate this Agreement by providing written notice of termination to County specifying the effective date of the termination, which date shall be: a. No less than ninety (90) days from the date of the notice in the event the default is under paragraph b. No less than eighteen (18) months from the date of the notice in the event of a default by County under any paragraph of paragraph 11.1 other than paragraph The purpose of this additional time is to provide County with time to permit and construct, or otherwise provide, for alternative utility capacity Suspend Reclaimed Water or Wastewater service to County, at the end of the cure period provided in City s written Notice of Default to County, and any extensions thereof, during the period of the default Cure of Monetary Default. In the event that County disputes a Charge from City, it may avoid a default under paragraph or paragraph , by, within the time for payment under paragraph , providing City with a security deposit or other collateral (in form acceptable to City in the exercise of its reasonable discretion) in the amount of the disputed Charge, and by paying the amount of all undisputed Charges as and when due. If County does so, County shall not be deemed in default under this Agreement concerning a disputed Charge until the dispute is resolved. If the parties are unable to reach an agreement concerning the dispute, either party may thereafter pursue remedies available under paragraph Remedies upon City s Default. If any Event of Default occurs by City, County shall have the right, at the option of County to terminate this Agreement by providing written notice of termination. In that event, this Agreement shall terminate upon the date specified in the notice, which shall be no less than 90 days from the date of the notice, unless City has meanwhile cured the default to the reasonable satisfaction of County Additional Remedies Upon the occurrence of an Event of Default, the non-defaulting party may seek relief by means of declaratory judgment, injunctive relief and specific performance of this Agreement, in addition to any other remedy available hereunder or otherwise available at law or equity All remedies specified in this Agreement shall be cumulative. 12. Territorial Agreement. City s provision of Utility Services hereunder, the construction of the Connection Facilities, and the parties other performance hereunder, shall be deemed permitted as the provision of Wholesale Service under Section 5.1 of the Territorial Agreement, and therefore shall not be deemed to violate the Territorial Agreement. 13. Effect of Termination of City-Ocala Meadows Agreement by Ocala Meadows. In the event that, subsequent to the execution of the City-Ocala Meadows Agreement and City s commencement of Reclaimed Water service pursuant to such Agreement, Ocala- Meadows lawfully terminates the City-Ocala Meadows Agreement: 10

11 13.1. City shall be relieved of its obligation to sell, and County shall be relieved of its obligation to purchase, Reclaimed Water pursuant to this Agreement The parties shall nonetheless be bound by the provisions of this Agreement concerning Wastewater Service. 14. Force Majeure Any temporary or continuing cessation of or reduction in the provision of Utility Services by City caused by an Act of God, fire, strike, casualty, necessary maintenance work, breakdown of or injuries to machinery, pumps or pipelines, civil or military authority, insurrection, riot, or any other causes, whether or not of the same kind as enumerated herein, reasonably beyond the control of City, shall not constitute a breach of the Agreement on the part of City, and City shall not be liable to County for any damage resulting from such cessation of service if City uses due diligence to restore the provision of Utility Services as soon as possible. City shall use due diligence in the operation and maintenance of its Reclaimed Water and Wastewater facilities; however, City shall not be responsible to County for any interruption of service due to causes beyond City s control not due to the negligence of City During such temporary or continuing cessation or reduction of services, including a declared Reclaimed Water shortage, County may seek alternative means to replace the lost or diminished Reclaimed Water and Wastewater services. 15. Indemnity Each party (the Indemnitor ) agrees to indemnify and defend the other party (the Indemnitee ) for the negligent acts or omissions of the Indemnitor, its officers, employees, contractors or agents, up to the limits of the waiver of sovereign immunity provided in Section , Florida Statutes Notwithstanding the foregoing, the limits of the waiver of sovereign immunity provided in Section , Florida Statutes shall not limit the liability of an Indemnitor as to fines, or for other amounts paid, by Indemnitee to governmental authorities as a result of violations by Indemnitor (or by County s Customers under paragraph 2.3 of this Agreement) of applicable Regulations. 16. Safety and the Environment In performing their respective obligations under this Agreement, each of the parties must comply with all applicable Regulations, including, without limitation, those relating to occupational health and safety, the protection of the environment, dangerous goods, hazardous substances and the giving of notices. Only violations that threaten the health of the Customers of the other party, or exposes such other party to risk of sanctions, penalties, litigation or administrative proceedings by applicable governmental authorities shall be cause for default Each of the parties shall use its reasonable efforts to identify all material risks to the safety of persons and damage to the environment which may arise in relation to: (a) their respective activities performed under this Agreement; and (b) the 11

12 performance of their respective obligations under this Agreement, and must inform the other party of the risks identified by it and practices relating to them and, if requested to do so, provide information and training to the other party on the systems, measures, precautions and practices implemented by it to mitigate those risks. 17. No Assignment. Neither party may assign its rights or obligations hereunder without the express written consent of the other. 18. JURY WAIVER. EACH PARTY HEREBY COVENANTS AND AGREES THAT IN ANY LITIGATION, WHICH ARISES OUT OF OR RELATES TO THIS AGREEMENT, TRIAL SHALL BE TO A COURT OF COMPETENT JURISDICTION AND NOT TO A JURY. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY. 19. Notices All notices, requests, consents and other communications required or permitted under this Agreement shall be in writing (including faxed communication) and shall be (as elected by the person giving such notice) hand delivered by messenger or courier service, faxed, or mailed by Registered or Certified Mail (postage pre-paid), Return Receipt Requested, addressed to the following or to such other addresses as any party may designate by notice complying with the terms of this paragraph: If to City: Director of City Water & Sewer Department, 1805 NE 30th Avenue, Building 600, Ocala, Florida 34470; fax: (352) a. With a copy to: City Manager, 151 SE Osceola Avenue, 2nd Floor, Ocala, FL 34471; fax: (352) If to County: Director of Marion County Utility Services, 1219 S. Pine Avenue, Ocala, FL 34471; fax: (352) a. With a copy to: County Attorney, 601 SE 25 th Avenue, Ocala, FL Each such notice shall be deemed delivered: On the date delivered if by personal delivery; On the date of facsimile transmission if by facsimile; and If the notice is mailed, on the earlier of: (a) the date upon which the Return Receipt is signed; (b) the date upon which delivery is refused; (c) the date upon which notice is designated by the postal authorities as not having been delivered; or (d) the third business day after mailing Notwithstanding the foregoing, service by personal delivery delivered, or by facsimile sent, after 5:00 p.m. shall be deemed to have been made on the next day that is not a Saturday, Sunday or legal holiday. 12

13 19.3. If a notice is delivered by multiple means, the notice shall be deemed delivered upon the earliest date determined in accordance with the preceding subparagraph. 20. Governing Law. This Agreement shall be governed by, and construed and enforced in accordance with the laws of the State of Florida. 21. Attorney's Fees. The prevailing party shall be entitled to recover its reasonable attorney fees and taxable court costs in the event of litigation concerning the interpretation, application, administration of enforcement of this Agreement. 22. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 23. Waiver. A failure to assert any rights or remedies available to a party under the terms of this Agreement shall not be deemed a waiver of such rights or remedies, and a waiver of the right to remedies available to a party by a course of dealing or otherwise shall not be deemed to be a waiver of any other right or remedy under this Agreement, unless such waiver of such right or remedy is contained in a writing signed by the party alleged to have waived his other rights or remedies. 24. Construction of Agreement. Each party acknowledges that all parties to this Agreement participated equally in the drafting of this Agreement and that it was negotiated at arm's length. Accordingly, no court construing this Agreement shall construe it more strongly against one party than another. 25. Exhibits. Any exhibits attached to this Agreement shall, by this reference, be incorporated into this Agreement. 26. Entire Understanding. This Agreement represents the entire understanding and Agreement between the parties with respect to the subject matter hereof. 27. Amendments. This Agreement may only be amended by written instrument approved by the respective governing board of each party and executed with the same formalities as this Agreement. below. WHEREFORE, the parties have executed this Agreement on the day and year written SIGNATURES ON FOLLOWING PAGES 13

14 ATTEST: Angel B. Jacobs City Clerk City of Ocala, a Florida municipal corporation Suzy Heinbockel President, Ocala City Council Approved as to form and legality Patrick G. Gilligan City Attorney STATE OF FLORIDA COUNTY OF MARION The foregoing instrument was acknowledged before me this day of, 2012, by Suzy Heinbockel, as City Council President of the City of Ocala, Florida, a Florida municipal corporation, on behalf of the City. Notary: Check one of the following: Personally known OR Notary Public, State of Florida Name: (Please print or type) Commission Number: Commission Expires: Produced Identification (if this box is checked, fill in blank below). Type of Identification Produced: 14

15 Marion County, a political subdivision of the State of Florida by and through the Board of County Commissioners of Marion County, Florida By: Charlie Stone, Chairman ATTEST: David R. Ellspermann, Clerk Approved as to form and legality: Matthew Guy Minter, County Attorney STATE OF FLORIDA COUNTY OF MARION The foregoing instrument was acknowledged before me this day of, 2012, by Charlie Stone as Chairman of the Board of County Commissioners of Marion County, Florida, on behalf of Marion County, a political subdivision of the State of Florida. Notary Public, State of Florida Name: (Please print or type) Commission Number: Commission Expires: Notary: Check one of the following: Personally known OR Produced Identification (if this box is checked, fill in blank below). Type of Identification Produced: 15

16 EXHIBIT A OCALA MEADOWS PROPERTY The following described real property with Marion County Tax Parcel Identification numbers: PARCEL ID PARCEL ID PARCEL ID PARCEL ID PARCEL ID PARCEL ID PARCEL ID PARCEL ID PARCEL ID PARCEL ID PARCEL ID PARCEL ID PARCEL ID PARCEL ID PARCEL ID PARCEL ID PARCEL ID PARCEL ID PARCEL ID PARCEL ID PARCEL ID

17 EXHIBIT B WHOLESALE AREA (IN ADDITION TO OCALA MEADOWS PROPERTY) The real property with the following Marion County Tax Parcel Identification numbers: PARCEL ID PARCEL ID PARCEL ID PARCEL ID PARCEL ID PARCEL ID PARCEL ID PARCEL ID PARCEL ID PARCEL ID PARCEL ID PARCEL ID PARCEL ID PARCEL ID PARCEL ID PARCEL ID Attached hereto is a sketch of the Wholesale Area with the Ocala Meadows Property depicted in blue-cross hatching and the other parcels of the Wholesale Area depicted in blue. 17

18 18

19 EXHIBIT C POINTS OF CONNECTION See attached. 19

20 E:\CITY\WATER\Bulk Sales\County 2012\Contract\Wholesale Agreement JG docx 20