The Board of County Commissioners of Brevard County, Florida, met in special session on August 12, 1999, at 3:00 p.m. in the Government Center Florida Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida. Present were: Chairman Truman Scarborough, Commissioners Randy O'Brien, Nancy Higgs, Sue Carlson and Helen Voltz, County Manager Tom Jenkins, and County Attorney Scott Knox.

STIPULATED SETTLEMENT AGREEMENT WITH OLEANDER POWER PROJECT, L.P. AND CONSTELLATION POWER DEVELOPMENT, INC.

Chairman Scarborough stated the Board will review the Stipulated Settlement Agreement item-by-item.

Commissioner Higgs inquired what is the impact of the double underlining on the second whereas on page 1; with County Attorney Scott Knox responding the double underlining indicates what language has been added to the paragraph. Chairman Scarborough noted the language states, "utilizing water conserving technology in accordance with the Facility's Secondary Water Use Permit . . ." Assistant County Manager Peggy Busacca stated it was intended to address Marlene Waters' concerns about the conservation of water. Mr. Knox stated it is an indication of intent.

Commissioner O'Brien stated page 2, Section IV, reads, "located outside aquifer recharge areas"; and inquired in what manner will all the water used be discharged, and is there any reason to hold water on the property. Ms. Busacca stated the reason for putting aquifer recharge areas is because the total amount of impervious surface is limited, and so that the runoff will continue to percolate into the surficial aquifer. She stated the stormwater would be treated the same regardless of whether it is an aquifer recharge area or not. County Manager Tom Jenkins advised an aquifer recharge area has more restrictions on it; and being outside of an aquifer recharge area does not have the severe restrictions.

Commissioner Higgs inquired where does the water go; with Richard Wolfinger, Vice President of Constellation Power Development, Inc., responding most of the water is consumptive in nature; and approximately 10% of the water from the water treatment system will go back into the sanitary sewer system and then into the graywater system.

Richard Zwolak, representing Constellation Power Development, Inc., stated in this area of Brevard County, the percolation rate of the soils is slower than in other areas of the County, so it is not designated as an aquifer recharge area; and all of the stormwater that is generated on the site may not percolate into the surficial aquifer and could enter the Floridan aquifer over time, but not as rapidly as in the areas that are designated aquifer recharge areas. He stated the

STIPULATED SETTLEMENT AGREEMENT WITH OLEANDER POWER PROJECT, L.P. AND CONSTELLATION POWER DEVELOPMENT, INC.

Comprehensive Plan includes policies that encourage industrial development outside of the aquifer recharge areas and limits the amount of pervious surface in aquifer storage areas.

Commissioner O'Brien expressed concern about reuse water being converted to steam and the steam being put out the stacks, and what level of bacteria is going out with the steam. Mr. Zwolak responded the water is mineralized, very clean, and has no bacteria; and it goes through a reverse osmosis process.

Commissioner Carlson stated page 3, Item 4, reads, "That the type of fuels utilized and the authorized number of hours referred to in Items No. 2 and 3, immediately above, may not be modified or increased regardless of the permitted hours or fuels authorized by Department of Environmental Protection (DEP) or any successor agency without the approval of the County granted at a public hearing"; and inquired in the event the site is annexed, will the County approval still apply and can any verbiage be included to ensure that.

County Attorney Scott Knox advised he talked to Richard Amari, City of Cocoa Attorney, who indicated he would be willing to ask the City Council if it is possible to have an interlocal agreement to allow the County to continue to enforce this even if there was an annexation. He stated Mr. Amari's suggestion was to handle it as a deed restriction and record the document as an encumbrance on their property holdings that would allow the County to enforce it as a deed restriction. Commissioner Carlson inquired how would the County incorporate that language; with Attorney Knox responding it would be included in paragraph 16 of the recording portion of the document, and would read, "it would constitute deed restrictions that run with the land, and the County will have the standing to enforce the provisions of the restriction."

Commissioner Carlson stated Items 6 b through e, reference existing Code; it needs to be consistent as it includes three different words-authorized, permitted, or required; only one word should be used instead of three; and inquired if they can be deleted. Attorney Knox stated removing it would make it clearer; Commissioner Carlson is suggesting to either refer to the Code consistently or get rid of it all together when referring to the Code; and deleting it is a better alternative.

Chairman Scarborough inquired about the fuel and how volatile is the product; with Mr. Zwolak responding it is much less volatile than gasoline. Mr. Zwolak advised there is an industry standard rating for the different types of fuels; he does not have that information with him; they have talked with the County's Public Safety staff regarding the use of different fuels; and

STIPULATED SETTLEMENT AGREEMENT WITH OLEANDER POWER PROJECT, L.P. AND CONSTELLATION POWER DEVELOPMENT, INC.

they expressed no concern. Chairman Scarborough inquired who has reviewed the matter of storage on site and the magnitude of an explosion there; with Mr. Zwolak responding it likely would not explode because in order for diesel to explode it would need to be under pressure. Chairman Scarborough inquired does the Southern Standard Building Code have parameters with the storage of this amount of fuel; with Ms. Busacca responding it is in the National Fire Code and would have to be met. Mr. Zwolak advised there are also State and Federal standards that the project will have to comply with.

Commissioner O'Brien suggested the Board insert on page 3, paragraph 4, after the word "increased", "regardless of the permitted hours or fuels authorized by Florida Department of Environmental Protection (FDEP)."

Attorney Leonard Spielvogel, representing Constellation Power Development, Inc., advised his client has no objection to the proposed language by Commissioner O'Brien.

Motion by Commissioner O'Brien, seconded by Commissioner Higgs, to insert "regardless of the permitted hours or fuels authorized by Florida Department of Environmental Protection (FDEP) on page 3, paragraph 4, after the word "increased." Motion carried and ordered unanimously.

Motion by Commissioner Higgs, seconded by Commissioner Voltz, to delete language on page 3, paragraphs 6 b., d., and e. referencing the existing Code. Motion carried and ordered unanimously.

Discussion ensued concerning odor and odor meters to demonstrate compliance, Fact Book, impacts to the general public, performance zoning, meeting standards, specific criteria, and residential components.

Commissioner O'Brien expressed concern about the number of trucks that could be deployed to the plant on any single day; and inquired what is the capacity of the fuel trucks bringing the diesel fuel to the plant.

Mr. Wolfinger stated they will not be able to fuel the plant with enough fuel trucks if it is running constantly; and the reason they have 72 hours of operation is because that is probably the longest they would have to operate. He stated they can bring in 12 hours of full load operation of oil if they unload them all the time; the most they could do is 12 hours a day from truck shipments that are coming in; and they do not have enough unloading to maintain 24 hours a day.

Commissioner Carlson inquired what is the reasonable number of trucks per hour that would unload; with Mr. Wolfinger responding probably four trucks.

STIPULATED SETTLEMENT AGREEMENT WITH OLEANDER POWER PROJECT, L.P. AND CONSTELLATION POWER DEVELOPMENT, INC.

Mr. Zwolak stated when they did the transportation analysis for the project, they looked at both the morning and afternoon peak hours; on S.R. 520 right now there is between 800 and 900 vehicles during peak hour; that is a very high level of service; and adding potentially six trucks and the operational employees still maintains a level of service B.

Motion by Commissioner Higgs, seconded by Commissioner Voltz, to include language on page 5, paragraph h, to read "Any alternate route used must be approved by the Brevard County Traffic Department." Motion carried and ordered unanimously.

Chairman Scarborough inquired about the amount of the bond; with Ms. Busacca responding it would be determined after the Road and Bridge Department looks at what improvements need to be done. Ms. Busacca noted typically the County requests a bond of 125% of the improvements because if the person does not do it, the County will have the money to do the necessary improvements. She stated the County could require a maintenance bond as part of the site plan approval; but it would not know how much would be required until it does the study to analyze the improvements necessary.

Attorney Spielvogel stated his client will monitor and fix the road if they cause any damage; and at the end of the four years, they will determine whether they have to do something substantial to the road to make sure it continues in good shape.

Attorney Knox stated the four years does not begin until the construction is complete; after four years they decide whether or not it is impacting the road; at that time they decide what it is going to cost; and what is missing is a performance bond.

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to include language on page 5, paragraph i, to read "Owner will post performance and maintenance bonds in accordance with County standards." Motion carried and ordered unanimously.

Commissioner O'Brien stated page 6, paragraph 8, states, "That the owner shall develop the property in accordance with the following General Industrial Performance Standards . . . maintenance, except that the owner shall make reasonable effort to minimize adverse impacts on surrounding properties"; and suggested stronger language than the word "reasonable".

Attorney Knox suggested the language include, "that the owner shall employ customary industry construction practices to minimize adverse impacts on surrounding properties during such periods of construction, renovation, or maintenance."

STIPULATED SETTLEMENT AGREEMENT WITH OLEANDER POWER PROJECT, L.P. AND CONSTELLATION POWER DEVELOPMENT, INC.

Motion by Commissioner Carlson, seconded by Commissioner O'Brien, to include language on page 6, paragraph 8, to read "That the owner shall develop the property in accordance with the following General Industrial Performance Standards (some of the following standards shall not apply during those limited periods of time that the facility is under construction or is undergoing renovation or maintenance, except that the owner shall employ customary industry construction practices to minimize adverse impacts on surrounding properties during such periods of construction, renovation, or maintenance.)" Motion carried and ordered unanimously.

Commissioner O'Brien stated page 6, paragraph b, states, "The owner will cooperate with the City in order to maximize the use of reclaimed water and stormwater with a goal of 65% usage of reclaimed water and the balance being potable water"; and his concern about the use of potable water is that the draw down will reduce the pressure for the residents on Friday Road. He inquired if there is a drought and little or no reuse water, should the County be notified by the Company that they are going to have to switch to potable water within 24 hours. Mr. Wolfinger stated the use of potable or reclaimed water is totally within the City of Cocoa's restrictions and the City would make the determination. Commissioner Higgs stated she is uncomfortable with the Company's 65% usage of reclaimed water as a goal. Mr. Wolfinger responded he does not know what it is going to be; that is what the City of Cocoa estimated; he would like to use 100% reclaimed water because it is cheaper; and he has no interest in using potable water.

Mr. Zwolak stated the Company would need to go to the St. Johns River Water Management District to obtain a secondary water use permit; the major component of that is a water conservation plan; through that mechanism the Company would provide the legal means for the District and the City of Cocoa to monitor the volume of reclaimed water and insure it is maximized; and through the use of infrastructure improvements that Constellation Power Development, Inc. will provide the City, the City will be putting more stormwater into its water system. He noted there is a possibility that the additional stormwater will be available to residents and commercial businesses on a daily basis whether or not the power plant is operating; what could occur is that the overall water supply picture could be enhanced in comparison to the amount of water that Oleander would use; the power plant and the use of the water that is being proposed is between 6th and 7th of the residential developments occurring in the County; and the City of Cocoa has the capacity of 48 million gallons per day and currently uses approximately 26 million gallons per day. Mr. Zwolak stated the amount the City of Cocoa pumps per day is a little bit more than what Oleander would use in one year; and because of the way the City has managed its water resources and the establishment of an inland

STIPULATED SETTLEMENT AGREEMENT WITH OLEANDER POWER PROJECT, L.P. AND CONSTELLATION POWER DEVELOPMENT, INC.

wellfield through its aquifer storage and recovery program, it also has a 7 million gallon per day reservoir coming on line.

Commissioner Higgs stated Constellation Power Development, Inc. is offering no guarantee on the 65% reuse and no penalty it would pay if it does not meet that; with Mr. Zwolak responding it would pay an economic penalty by using potable water. Commissioner Higgs noted the Company is not offering anything to Brevard County in this stipulated agreement; with Mr. Zwolak responding no, the water use agreement would be with the City of Cocoa.

Commissioner Carlson inquired if the St. Johns River Water Management District can say that Oleander cannot have any more water at a certain point. Mr. Zwolak responded the District looks at the efficiency of the use; and it can come back every five years, when Oleander's secondary use permit needs to be renewed, and evaluate the situation. Commissioner Carlson inquired what about in an emergency situation; with Mr. Zwolak responding if there is a federal or State declaration of emergency, the District has the right to terminate water consumption at any industry prior to residential.

Commissioner Higgs inquired how far is the reuse line; with Mr. Zwolak responding approximately 2/3rds of a mile. Commissioner Higgs inquired will the Company construct it at its cost; with Mr. Zwolak responding affirmatively.

The meeting recessed at 4:45 p.m. and reconvened at 5:00 p.m.

Commissioner O'Brien requested page 7, paragraph e, include the language, "The entrance sign shall be a monument sign and shall meet the provisions of existing Code, Article IX, or any amendments thereto." Attorney Spielvogel advised that his client has no objection.

Chairman Scarborough stated page 7, paragraph i, states, "landscaping upon maturity estimated between three and five years . . ."; and the word "maturity" is the key word as opposed to "estimate". Attorney Spielvogel recommended the language read, "The landscaping, within five years, will be effective in screening no less than the average of 80% . . ." Chairman Scarborough agreed with Attorney Spielvogel's suggested language.

Attorney Knox stated page 9, paragraph 16, needs the following language inserted: "This document shall be recorded as a deed restriction that shall run with the lands identified in Exhibit A. The County is hereby granted standing to enforce the express terms of the restrictions set forth in this agreement and any modification agreed upon by the parties, notwithstanding any annexation of the property."

STIPULATED SETTLEMENT AGREEMENT WITH OLEANDER POWER PROJECT, L.P. AND CONSTELLATION POWER DEVELOPMENT, INC.

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to insert language on page 9, paragraph 16, to read, "This document shall be recorded as a deed restriction that shall run with the lands identified in Exhibit A. The County is hereby granted standing to enforce the express terms of the restrictions set forth in this agreement or any modification agreed upon by the parties, notwithstanding any annexation of the property." Motion carried and ordered unanimously.

Commissioner Higgs stated page 4, paragraph 7.a. refers to no more than 65 dba and represents the equivalent A-weighted sound level over 24 hours; and inquired does it represent a 24-hour average; with Mr. Zwolak responding affirmatively.

Chairman Scarborough inquired can the language read that at no time would the noise level ever exceed a certain number of decibels for longer than a certain period of time. Ms. Busacca stated the proposed language states, "At no time shall the predicted or actual noise level emitted by the proposed use exceed the sound pressure level specified below at the closest property line for more than two minutes in any one-hour period within the time period specified"; the owner is given a short period of time within a measurable period; and that is the way the County's ordinance is written, which will be discussed by the Board. Chairman Scarborough inquired if the owner has any problem with the proposed language; with Mr. Zwolak responding he does not have any problem with having a limitation on a periodic basis.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to insert language on page 4, paragraph 7.a., to read, "At no time shall the predicted or actual noise level emitted by the proposed use exceed the sound pressure levels specified at the closest property line for more than two minutes in any one-hour period." Motion carried and ordered unanimously.

Chairman Scarborough stated the Board was scheduled to be downstairs in the Commission Room at 5:00 p.m.; and before it votes on the stipulated settlement agreement, it will take public comments. He requested staff make the revisions to the agreement as voted on by the Board, and make them available in the Commission Room for the public's review and comment.

Upon motion and vote, the meeting adjourned at 5:20 p.m.

ATTEST:

TRUMAN SCARBOROUGH, CHAIRMAN
BOARD OF COUNTY COMMISSIONERS
BREVARD COUNTY, FLORIDA

SANDY CRAWFORD, CLERK
(S E A L)