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IN THE CIRCUIT COURT OF THE TENTH JUDICIAL CIRCUIT IN AND

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IN THE CIRCUIT COURT OF THE TENTH JUDICIAL CIRCUIT IN AND Powered By Docstoc
					     IN THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT IN AND
                     FOR FLAGLER COUNTY, FLORIDA

CITY OF FLAGLER BEACH,
a municipal corporation of the
State of Florida

         Plaintiff,                      CASE NO.: 06-001531CA

v.

HAMMOCK BEACH RIVER CLUB PROPERTY
OWNERS’ ASSOCIATION, INC., a Florida
Non-Profit Corporation; and FLAGLER COUNTY,
a Political subdivision of the State of Florida

     Defendants.
___________________________________/


        STIPULATED INTERLOCAL SERVICE BOUNDARY SETTLEMENT
                            AGREEMENT

         This Stipulated Interlocal Service Boundary Settlement Agreement

(“Agreement”) is made and entered into this _____ day of January, 2007 by and

among CITY OF FLAGLER BEACH, a municipal corporation of the State of

Florida (“FLAGLER BEACH”), FLAGLER COUNTY, a political subdivision of the

State of Florida (“COUNTY”), the HAMMOCK BEACH RIVER CLUB

PROPERTY OWNERS’ ASSOCIATION, INC., a Florida not-for-profit corporation

(“POA”), and the CITY OF PALM COAST, a municipal corporation of the State of

Florida (“PALM COAST”).          FLAGLER BEACH, COUNTY, POA, and PALM

COAST shall hereafter collectively be referred to as the “Parties.”


                                    RECITALS

      1.    The Parties have raised disputes over who should provide water
and wastewater service in portions of Flagler County, Florida.



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       2.     PALM COAST, COUNTY, and FLAGLER BEACH initiated
proceedings under Chapter 164, Florida Statutes, and met throughout 2006 to
resolve their disputes.

        3.    FLAGLER BEACH and PALM COAST have entered a series of four
interlocal agreements in March, July and August of 2006 regarding water and
wastewater service areas (the “Initial Agreements”).

       4.    The COUNTY and POA entered into a Utility Asset Transfer
Agreement approved August 21, 2006, and executed on September 26, 2006,
regarding the provision of water, wastewater, and reclaimed water service to
property described in Composite Exhibit “A” to that Agreement (the “Utility Asset
Transfer Agreement”).

       5.     FLAGLER BEACH filed a complaint against COUNTY and POA on
or about August 30, 2006, in which PALM COAST was granted subordinate
intervenor status on October 5, 2006.

       6.      FLAGLER BEACH filed a Notice of Voluntary Dismissal without
prejudice of its action against COUNTY on December 14, 2006.

      7.   The Parties mediated this dispute on December 22, 2006, and
reached a consensus as to certain matters to be reduced to writing in this
document.

       8.    Subsequent to initiation of the Chapter 164 proceedings, the Florida
Legislature adopted the Interlocal Service Boundary Agreement Act, Section
171.20 et. seq. Fla. Stat.

     9.     The Parties wish to create a mutually binding interlocal service
boundary agreement which cannot be abrogated during its term by future
commissions, councils, or boards.

      10.   The Parties have consented to the rejoinder of the COUNTY into
Case No. 06-1531CA for purposes of settling said case with this mutually binding
agreement.

       11.   All Parties now wish to resolve all pending matters in the above-
style cause.

      ACCORDINGLY, in consideration of the above-stated Recitals, the receipt
and sufficiency of which are acknowledged by the Parties hereto, the Parties
agree as follows:


                                    TERMS



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         SECTION 1. RECITALS. The above Recitals are true and correct and

are hereby incorporated in this Agreement.

         SECTION 2. SUBMISSION OF ORDER. The Parties to this proceeding

will submit to the Court an Order approving this Agreement.

         SECTION    3.      INCORPORATION     OF    EXHIBIT   “A,”   UTILITIES

TERRITORIAL SERVICE AREA BOUNDARY MAP. The Parties agree to and

do hereby incorporate into this Agreement as Exhibit “A” two maps (hereafter

collectively “Map”). The Map shall be referred to and explained as set forth in

this Agreement.

         SECTION 4.      AGREEMENTS AMONG FLAGLER BEACH, COUNTY,

AND POA. FLAGLER BEACH, COUNTY, and POA agree as follows:

              4.1. Service Area Agreement.

                      (1)   FLAGLER BEACH, POA and COUNTY agree to the

retail water, wastewater, and reclaimed water service areas as depicted on the

Map, and shall not offer to serve or serve within the service area of another

without the express written consent of the other. The COUNTY shall be the retail

water, wastewater, and reclaimed water provider along the John Anderson

corridor and as depicted on the Map; provided, however, FLAGLER BEACH shall

provide reclaimed water directly to the POA property described in Composite

Exhibit “A” of the Utility Asset Transfer Agreement (the “POA Property”) as

further set forth below.




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                    (2)    FLAGLER BEACH shall provide to the COUNTY

wholesale water and wastewater service capacity and the COUNTY will thereby

serve the POA Property and all other properties north and east of Bulow Creek

retail water and wastewater service utilizing said wholesale capacity. FLAGLER

BEACH shall provide 240,000 gallons per day, average daily flow (“GPDADF”) of

water service capacity and 200,000 gallons per day, average annual flow

(“GPDAAF”) of wastewater service capacity to the COUNTY.

                    (3)    The POA shall not build water or wastewater

treatment plants but shall instead design, permit, and construct a wastewater line

to be metered at FLAGLER BEACH’s wastewater plant and a metered water line

along John Anderson Highway to connect FLAGLER BEACH facilities to the

project known as Hammock Beach Planned Unit Development (“PUD”) and to

loop the water system. The Utility Asset Transfer Agreement is hereby amended

to delete the requirement to build the plants, but the design, permitting,

construction, and conveyance to COUNTY of the water and wastewater pipelines

within the POA Property shall be controlled by the provisions of the Utility Asset

Transfer Agreement.

              4.2. Rates and Charges.

                    (1)    FLAGLER BEACH agrees that the wholesale water

and wastewater rates to be charged COUNTY will be only the retail gallonage

rates charged to FLAGLER BEACH retail water and wastewater customers

inside FLAGLER BEACH city limits based upon and calculated by the number of

equivalent residential connections (“ERCs”) in use and connected. FLAGLER




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BEACH agrees to provide COUNTY sixty (60) days advance written notice prior

to implementing any increases to said wholesale water and wastewater

gallonage rates.

                    (2)    POA shall pay water and wastewater capacity /

capital charges (i.e., impact fees) as set forth in FLAGLER BEACH rate

ordinances based upon an annual average flow on a per ERC basis, with an

ERC defined as 250 GPDADF for water and 200 GPDAAF for wastewater.

Payment of said charges are subject to credits as set forth below. FLAGLER

BEACH shall not charge COUNTY such fees or charges.

              4.3. Regulatory Matters.

                    (1)   COUNTY and POA agree that the Utility Asset

Transfer Agreement and all developer orders as defined in Section 380.04, Fla.

Stat., are hereby amended to delete the requirement for POA to build a water

plant and wastewater plant.    Water and wastewater pipelines ion the POA

Property shall be designed, permitted, constructed, and conveyed to the

COUNTY pursuant to said Utility Asset Transfer Agreement. Therefore, except

as otherwise specifically modified by this Agreement, the Utility Asset Transfer

Agreement shall remain unchanged and is hereby ratified and confirmed.

                    (2)   FLAGLER BEACH, COUNTY, and POA shall support

modifying FLAGLER BEACH’s water use permit issued by the St. Johns River

Water Management District (“SJRWMD”) to increase permitted water allocation

for wholesale water service to COUNTY to serve the POA Property and other




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lands north and east of Bulow Creek. This Agreement is subject to modification

of FLAGLER BEACH’s water use permit by SJRWMD.

                     (3)   FLAGLER BEACH and COUNTY shall approve

proper Florida Department of Environmental Protection (“FDEP”) permit

applications for the PUD consistent with this Agreement.

              4.4. Irrigation / Reclaimed Water Issues.

                     (1)   POA shall design, permit, and construct reverse

osmosis facilities at its expense (estimated cost of $4 million - $5 million) at

FLAGLER BEACH wastewater treatment plant to be conveyed at completion to

FLAGLER BEACH.

                     (2)   FLAGLER BEACH hereby approves credits equal to

670 ERCs of water service capacity and 670 ERCs of wastewater service

capacity against all capacity / capital charges or impact fees that would otherwise

be charged by FLAGLER BEACH for water service capacity and wastewater

service capacity under subsection 4.2 hereof.

                     (3)   POA will receive all its reclaimed water from

FLAGLER BEACH from FLAGLER BEACH wastewater treatment plant subject to

payment of a charge of FIFTY CENTS ($0.50) per thousand gallons; provided,

however, that the POA shall be entitled to a credit against paying this charge for

thirty (30) years from the effective date of this Agreement, which credit shall

survive any termination of this Agreement.      Subject to availability, FLAGLER

BEACH agrees to provide and POA agrees to receive all the PUD needs for

irrigation uses.   Should FLAGLER BEACH have insufficient reclaimed water




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capacity available to serve all the POA Property, the COUNTY shall have the

right to provide backup reclaimed water to POA Property and POA shall have the

right to receive said reclaimed water service. POA or a community development

district may be the recipient of the reclaimed water service.

              4.5. Miscellaneous Agreements. FLAGLER BEACH, POA and

COUNTY agree to and incorporate the Map into this Agreement.                   This

Agreement shall survive any future annexations that may occur of all or any part

of the POA Property and this Agreement shall not be used as a basis for

supporting annexation of all or any portion of the POA Property.         FLAGLER

BEACH agrees to provide COUNTY with up to 20,000 GPDADF of water service

capacity through the Beverly Beach interconnect subject to wholesale service

terms as set forth in Subsection 4.1 hereof.

         SECTION 5. AGREEMENTS BETWEEN PALM COAST AND COUNTY.

PALM COAST and COUNTY agree as follows:

              5.1. Service Area Agreements. PALM COAST and COUNTY

agree to the retail water, wastewater, and reclaimed water service areas as

depicted on the Map, and shall not offer to serve or serve within the service area

of another without the express written consent of the other. PALM COAST may

serve within its current and future city limits; provided, however, it may not serve

within COUNTY’s service area as depicted on the Map.

              5.2.   Wholesale Water Supply and Extension of Water Line.

PALM COAST agrees to make available to COUNTY water and / or wastewater

service on a wholesale basis subject to but not in excess of wholesale rates




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charged by PALM COAST to any other entity. PALM COAST agrees to extend

at its cost as depicted on the Map a water line and install one (1) 6-inch diameter

meter.

              5.3. Agreements Regarding Annexation. PALM COAST agrees

that it will not require annexation as a condition of providing retail water and

wastewater service in those areas depicted on the Map that are currently in the

City of Palm Coast F. S. 180 Service Area, south and / or east of the existing

PALM COAST city limits, and lands east of the Intercoastal Waterway. If PALM

COAST should, in the future, annex areas into its city limits which are now

located in the COUNTY’s service area, the COUNTY agrees it will negotiate in

good faith but shall not be compelled to sell or transfer the utility service

customers and facilities located within such annexed area to PALM COAST at a

just, full and fair market value to be determined. Any such negotiated sale shall

not compromise the integrity of the COUNTY’s independent operating system or

adversely affect COUNTY system hydraulics.        Furthermore, no such sale or

transfer shall violate the terms of any agreements to which the COUNTY may be

a party or any bond covenants or restrictions which may now or hereafter exist

with regard to either party.    Notwithstanding anything to the contrary, this

Agreement shall control over any annexation.

                    5.4.   Miscellaneous Agreements.        COUNTY will provide

maser pump station site next to Hammock Dunes Bridge. COUNTY and PALM

COAST shall cooperate with each other regarding any and all permitting for utility




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development or implementing other provisions of this Agreement, including but

not limited to right-of-way use and well activation.

         SECTION 6.    AGREEMENTS OF ALL PARTIES.                All Parties to this

Agreement agree as follows:

              6.1. Territorial Agreements. Each Party agrees that it shall honor

all other Parties’ service area boundary lines as specified on the Map and shall

not seek to offer or provide service in the other Parties’ exclusive water,

wastewater, and reclaimed water service areas as depicted on the Map.

Notwithstanding anything to the contrary, the Parties agree that the interlocal

agreements between PALM COAST and FLAGLER BEACH shall apply to the

Colbert Lane area.

              6.2.     Enforceable     Agreement.       The   Parties   agree    and

acknowledge that they have complied with the requirements of Section

171.203(13), Fla. Stat. (2006), and that the Parties’ initiating resolutions shall be

deemed initiating and responding resolutions (as appropriate pursuant to Section

171.203, Fla. Stat. (2006). In executing this Agreement, the Parties are involving

and utilizing the authority granted pursuant to both Section 163.01 and Part II,

Chapter 171, Fla. Stat. (2006). Notwithstanding anything to the contrary, the

Parties agree that his Agreement is valid, binding, and enforceable, and each

Party warrants to all other Parties that it has the requisite power and authority to

be bound by this Agreement. The Parties agree that they shall not challenge in

any administrative or judicial forum the validity or enforceability of this

Agreement.




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               6.3.   Dismissal of Proceedings.       That all legal proceedings

between the Parties and entities referenced above shall be dismissed upon entry

of the Order, each party to pay its own attorney’s fees and costs.

               6.4. Cooperation. Neither Party nor entity referenced above shall

take any action or refrain from taking any action in a manner which is

inconsistent with the intent and spirit of this Agreement. This cooperation shall

include but not be limited to the support of all Parties for the approval of the

modification of FLAGLER BEACH’s water use permit as described in Subsection

4.3(2) hereof.

         SECTION 7. EFFECTIVE DATE. The COUNTY shall file a copy of this

Agreement with the Clerk of the Circuit Court for Flagler County pursuant to

Section 163.01, Fla. Stat. This Agreement shall be effective upon the later of (1)

entry of Order of the Court and (2) filing by the COUNTY with the Clerk of the

Circuit Court for Flagler County, and shall have a term of twenty (20) years in

accordance with Section 171.203(12), Fla. Stat.

         SECTION 8. DISMISSAL OF APPEALS. Within three (3) business days

after the Court enters an Order approving this Agreement, the Parties, through

their counsel, shall cause to be filed with the Circuit Court of Flagler County,

Florida, a Joint Stipulation for Dismissal of the above-styled causes with

prejudice.

         SECTION 9. RELEASES. The Parties on their own behalf and on behalf

of their past and present agents, assigns, and any all persons or entities claiming




# 478503 v1                             10
through them or under them, hereby each release and forever discharge the

other and their respective past, present and future parent corporations,

subsidiaries, affiliates, shareholders, agents, employees, directors, officers,

servants, assigns, insurers, partners, attorneys, and predecessors and

successors, officers, directors, and elected officials (“Released Parties”), from

any and all claims and demands, actions and causes of action, at law or in

equity, known and unknown, which either now owns or holds, or has at any time

heretofore owned or held against the other or any of the Released Parties,

including, but not limited to, any and all claims, demands or causes of action of

any kind whatsoever arising out of the above-styled cause.

         SECTION 10. VENUE.      The venue for all lawsuits brought by either

Party hereto involving any dispute, controversy, or claim arising out of or in

connection with this Agreement shall be brought in the Circuit Court of Flagler

County, Florida.

         SECTION 11. BINDING UPON SUCCESSORS. This Agreement shall be

binding upon and inure to the benefit of the parties hereto and their respective

successors, heirs, parent corporations, subsidiaries affiliates, representatives,

and assigns.

         IN WITNESS WHEREOF, the Parties hereto have executed this

Agreement on the date first above written.




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ATTEST:                             FLAGLER BEACH

                                    CITY OF FLAGLER BEACH



______________________________      By: ___________________________
Angela Apperson, City Clerk               ALICE M. BAKER, Mayor

Date: __________________________




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                                           COUNTY

                                           FLAGLER COUNTY, FLORIDA


______________________________
                                           By: ___________________________
Print Name: _____________________
                                           Name: ________________________

________________________________ Title: __________________________

Print Name: ______________________


APPROVED AS TO FORM AND
LEGALITY.


_______________________________



STATE OF FLORIDA
COUNTY OF FLAGLER

       The foregoing instrument was acknowledged before me this ______ day
of _______________, 200_ by ___________________, the ________________
of Flagler County, on behalf of Flagler County, He is personally known to me and
did not take an oath.

                                       _______________________________
                                       Signature of Notary Public

                                       _______________________________
                                       Print Notary Name
                                       My Commission Expires:___________
AFFIX NOTARY STAMP                     Commission No.:_________________
                                       Personally known, or
                                       Produced Identification
                                       Type of Identification Produced




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                                         POA

                                         HAMMOCK BEACH RIVER CLUB
                                         PROPERTY OWNERS
                                         ASSOCIATION, INC.

______________________________
                                         By: ___________________________
Print Name: _____________________
                                         Name: ________________________

________________________________ Title: __________________________

Print Name: ______________________




STATE OF FLORIDA
COUNTY OF FLAGLER

      The foregoing instrument was acknowledged before me this ______ day
of _______________, 200_ by ___________________, the ________________
of Hammock Beach River Club Property Owners Association, Inc., on behalf of
Hammock Beach River Club Property Owners Association, Inc. He is personally
known to me and did not take an oath.

                                    _______________________________
                                    Signature of Notary Public

                                    _______________________________
                                    Print Notary Name
                                    My Commission Expires:___________
AFFIX NOTARY STAMP                  Commission No.:_________________
                                    Personally known, or
                                    Produced Identification
                                    Type of Identification Produced




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ATTEST:                                  PALM COAST

                                         CITY OF PALM COAST



______________________________           By: ___________________________
Clare M. Hoeni, City Clerk                     JAMES V. CANFIELD, Mayor

Date: __________________________

For use and reliance of the Palm Coast
City Council only. Approved as to form
and legality.


_______________________________
Lonnie N. Groot, City Attorney




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________________________________    ___________________________
JOHN R. JENKINS                     THOMAS A. CLOUD
Florida Bar Number: 435546          Florida Bar Number: 293326
ROSE SUNDSTROM & BENTLEY            GRAYROBINSON, P.A.
2548 Blairstone Pines Drive         301 East Pine St. Ste. 1400
Tallahassee, FL 32301               Orlando, Florida 32801
850-877-6555                        407-843-8880
850-656-4029 Facsimile              407-244-5690 Facsimile
Counsel for Plaintiff               Counsel for Defendant
CITY OF FLAGLER BEACH               FLAGLER COUNTY, FLORIDA




_______________________________     ___________________________
REGINALD LUC BOUTHILLIER, JR.       LONNIE N. GROOT
Florida Bar Number: 948535          Florida Bar Number: 266094
GREENBERG TRAURIG                   CITY OF PALM COAST
101 E. College Avenue               2 Commerce Boulevard
Tallahassee, Florida 32301          Palm Coast , Florida 32164
850-222-6891                        386-986-3709
850-681-0207 Facsimile              386-986-3737 Facsimile
Counsel for Defendant               Counsel for Intervenor
HAMMOCK BEACH RIVER CLUB            CITY OF PALM COAST, FLORIDA
PROPERTY OWNERS ASSOCIATION,
INC.




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              EXHIBIT “A”

                 MAP




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