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Home My WebLink About09201995 City of Sebastian 1225 MAIN STREET n SEBASTIAN, FLORIDA 32958 TELEPHONE (407) 589-5330 D FAX (407) 589-5570 AGENDA SEBASTIAN CITY COUNCIL SPECIAL MEETING WEDNESDAY, SEPTEMBER 20, 1995 - 7:30 P.M. CITY COUNCIL CHAMBERS 1225 MAIN STREET, SEBASTIAN, FLORIDA ALL AGENDA ITEMS MA Y BE INSPECTED IN THE OFFICE OF THE CITY CLERK- 1225 MAIN STREET, SEBASTIAN, FLORIDA PURPOSE: 1) Water and Wastewater Purchase and Sale Matters - Conduct F.S. 180.301 Hearing - Adopt Resolution No. R-95-55 - 1st Reading of Ordinance No. 0-95-25 - Set PH 9/27/95 2) 1995/96 Fiscal Year Final Budget Hearings - Final Hearing & Adopt Resolution No. R-95-50- Millage- 6.90 - Final Hearing & Adopt Resolution No. R-95-51 - 1995/96 FY Budget 3) Golf Course Rates Public Hearing - Hearing and Adopt Resolution No. R-95-49 Anyone wishing to address City Council during the public hearing is required to sign the sign-up sheet provided prior to the meeting. 1. CALL TO ORDER PLEDGE OF ALLEGIANCE 3. ROLL CALL 95.089 PGS 1-2 95.O89 PGS 5-106 WATER AND WASTEWATERPURCHASE AND SALE MATTERS A. pLrBLIC HEARING IN ACCORDANCE WITH F.S.. 180.301 The normal order of business for public hearings (R-95-35) is as follows: · Mayor Opens Hearing · Attorney Reads Ordinance or Resolution if Applicable · StaffPresentation · Public Input ° StaffSummation · Mayor Closes Hearing · Council Action Please note: Anyone wishing to speak is asked to go to the podium and state his/her name and address for the record prior to addressing City Council. RESOLUTION NO. R-95-55 - Findings of Fact in Accordance with Florida Statute 180.301 - Purchase and Sale Agreement - Water and Wastewater Facility (R-95-55, Revised Agreement and Addenda) A RESOLUTION OF THE CITY COUNCIL OF THE CiTY OF SEBASTIAN, INDIAN RIVER COUNTY, FLORIDA, DIR]ECTING AND AUTHORIZING THE PURCHASE, SALE, ASSUMPTION AND TRANSFER OF THE REAL AND PERSONAL PROPERTY COMPRISING THE UTILITY SYSTEM OWNED AND UTILIZED BY THE CITY OF SEBASTIAN TO PROVIDE WATER AND WASTEWATER SERVICE; PROVIDING FOR FINDING OF A PUBLIC PURPOSE AND NECESSITY; PROVIDING THAT THE ACQUISITION IS IN THE PUBLIC INTEREST IN CONFORMANCE WiTH SECTION 180.301, FLORIDA STATUTES; PROVIDING AUTHORITY TO COMPLETE THE PURCHASE, SALE, ASSUMPTION AND TRANSFER; PROVIDING FOR CONFLICTS; AND PROVIDING FOR APPLICABILITY. I I' I i i I I I I I I I i I i i i I I 95.089 C. ?GS 107-110 ORDINANCE NO. 0-95-25 - Consenting to the Imposition of PGS Special Assessments by Indian Kiver County (City Manager Transmittal dated 9/15/95, 0-95-25) 1st Reading, Set Public Hearing for 9/27/95 AN ORDINANCE OF THE CITY OF SEBASTIAN, FLORIDA, CONSENTING TO THE IMPOSITION OF SPECIAL ASSESSMENTS AND OR THE INCLUSION OF ALL OF ITS INCORPORATED AREAS WITHIN ONE OR MORE MUNICIPAL SERVICE BENEFIT UNITS CREATED BY INDIAN RIVER COUNTY TO PROVIDE WATER OR WASTEWATER FACILITIES, SERVICES OK PROGRAMS; PROVIDING FOR SEVEKABILITY; AND PROVIDING AN EFFECTIVE DATE. 1995/96 FISCAL YEAR - FINAL BUDGET PUBLIC I:[EARINGS The normal order ofbusiness forpublic hearings (R-95-33) is as follows: Mayor Opens Hearing Attorney Reads Ordinance or Resolution if Applicable Staff Presentation Public Input Staff Summation Mayor Closes Hearing Council Action Please note: Anyone wishing to speak is asked to go to the podium and state his/her name and address for the record prior to addressing City Council. 95.077 A. PGS 111-114 RESOLUTION NO. R-9.5.,50 - Millage Rate of 6.90 Mills (Finance Director Transmittal dated 9/15/95, R-95-50) 2nd Public Hearing and Final Adoption Resolution No. R-95~50 is to be Read in Full in Accordance with FS 200.065 (2)(d) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEBASTIAN, INDIAN RIVER COUNTY, FLORIDA, ADOPTING A PROPOSED MILLAGE RATE OF 6.900 FOR THE CITY'S GENERAL OPERATING FUND FOR THE FISCAL YEAR BEGINNING OCTOBER 1, 1995 AND ENDING SEPTEMBER 30, 1996; PROVIDING FOR SEVERABILITY; PROVIDING FOR CONFLICTS; AND PROVIDING FOR AN EFFECTIVE DATE. 95.077 B. PGS 115-122 RESOLUTION NO. R-9.5-.51 - 1995/96 Fiscal Year Budget (Finance Director Transmittal dated 9/15/95, R-95-51) 2nd Public Hearing and Adoption A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEBASTIAN, INDIAN RIVER COUNTY, FLORIDA ADOPTING A BUDGET FOR THE FISCAL YEAR BEGINNING OCTOBER 1, 1995 AND ENDING SEPTEMBER 30, 1996; DETERMINING AND FIXING THE AMOUNTS NECESSARY TO CARRY ON THE GOVERNM]ENT FOR THE ENSUING YEAR; DETERMINING THE AMOUNT OF APPLICABLE FUNDS ON HAND; ESTIMATING RECEIPTS FOR THE GENERAL FLrND, EXIqlBIT "A'; GOLF COURSE FUND, EXHIBIT "B"; AIRPORT FUND, EXHIBIT "C"; CEMETERY TRUST FUND, EXHIBIT "D"; PROVIDING FOR SEVERABILITY; PROVIDING FOR CONFLICTS; AND PROVIDING FOR AN EFFECTIVE DATE. 4 I '1 i i I i i I I I I I I i I I I I i I' i i I I i I i I I i I I I I i I I GOLF COURSE RATES PUBLIC HEARING The normal order of business for public hearings (R-95-33) is as follows: Mayor Opens Hearing Attorney Reads Ordinance or Resolution if Applicable Staff Presentation Public Input Staff Summation Mayor Closes Hearing Council A ction Please note: Anyone wishing to speak is asked to go to the podium and state his/her name and address for the record prior to addressing City Council. 95.148 A. PGS 123-132 KESOLUTION NO. R-95-49 - Golf Course Rates (City Manager Transmittal dated 8/25/95, R-95-49) A RESOLUTION OF THE CITY OF SEBASTIAN, IND~ RIVER COUNTY, FLORIDA, PERTAINING TO GREENS FEES AND GOLF CART FEES AT THE MUNICIPAL GOLF COURSE; PROMULGATING A NEW SCHEDULE OF GREENS FEES AND GOLF CART FEES; PROMULGATING A NEW SCHEDULE OF ANNUAL MEMBERSHIP FEES; AUTHORIZING THE GOLF COURSE MANAGER TO MAKE ADJUSTMENTS TO THE HOUtLS AND CONDITIONS UNDER CERTAIN CIRCUMSTANCES; AUTHOR/ZING THE GOLF COURSE MANAGER TO ADJUST THE SUMMER FEE SCHEDULE WITHIN THE SPECIAL RANGE FOR MARKETING PURPOSES; AUTHORIZING THE GOLF COURSE MANAGER TO ADIUST THE RATION OF TEE-TIMES RESERVATION BETWEEN MEMBERS AND NON-MEMBERS; PROVIDING FOR REPEAL OF RESOLUTIONS OR PARTS OF RESOLUTIONS IN CONFLICT HEREWITH; PROVIDING FOR A SEVERABILITY CLAUSE; AND PROVIDING AN EFFECTIVE DATE. 7. ADJOURN ANY PERSON l, FT-tO DECIDES TO APPEAL ANY DECISIONMADE BY THE CITY COUNCIL WITH RESPECT TO ANT MATTER CONSiDER. ED AT THIS MEETING (OR HF_ARING) WILL NEED A RECORD OF THE PROCEEDINGS AND MAr NEED TO ENSUJLE THAT A VERBATIM RECORD OF THE PROCEEDINGS 1S MADE, WHICH RECORD INCLUDES THE TESTIMONY AND EVIDENCE UPON WHICH THE APPEAL IS TO BE HE,4R.D. (286.010.5 F.S.) IN COMPLIANCE WITH THE AMERICAArS WITH DISABILITIES ACT (ADA), ANYONE WHO NEEDS A SPECIAL ACCOMMODATION FOR THIS MEETING SHOULD CONTACT THE CITY'S ADA COORDINATOR AT 589-5330 AT LEAST 48 HOURS IN ADVANCE OF THIS MEETING. I I' I I I I I I I I I I I i I I I I I LAY: OFl~IClg$ OF POTTER, MCGLELLZ-ND, lVJ_aEE$ & HE~L'f, P.-& o~' Gor. r~ S z ~ REPLY TO: i'~.ELISOiJRNI~ (~07) 98~- 2700 ~ (407) 723-409~ 200 BI~EVAED AVENUE 00¢0~-, !~LOEIDA 32922 (407) 634- 5011 September 13, 1995 Mr. Joel L. Koford city Manager city of Sebastian 1225 Main Street Sebastian, FL 32958 Re: Sale of City of Sebastian Water and Wastewater System to indian River County Dear Mr. Koford: Enclosed is the original Interlocal Agreement Providing for the Transfer of the city of Sebastian Water and Wastewater System, which represents the final Agreement. I am by copy of this letter furnishing the same to the parties listed below. The County should furnish you a clean copy of Appendix B and distribute the same to everyone. If you have any questions, please contact me. Respectfully, Clifton A. McClelland, Jr. cAM/tab Enclosure James E. Chandler, County Administrator Joseph A. J. Baird Terry Pinto Charles P. Vitunac, Esq. Mark T. Mustian, Esq. Arthur H. Diamond Robert C. Reid, Esquire Kevin P. Mulshine Mazen Khoury I I I I I I I I 180.301 Purchase or sate of water, sewer, or wastewa~er reuse utility by municipality.--No mumci- ;~aiity may purchase or sell a water, sewer, or waste- water reuse utility that provides service to the public for compensation, until the govemlng body of the rnumct- ~ality nas held s ouDlio nearing on the purchase or sale an(: made s determiner,on that the purchase or sale ,s in the public interest, in determining if the purchase or sale is ~n the Public interesL the municipality shall con- s~oer, at a minimum, the following: (1) The most recent available income and expense statement for the utility; (2) The most recent available balance sheet for the utility, tisting assets and liabilities and clearly snow~ng the amount ct contributions-ir,-aid--ol-construction and the accumulated depreciation thereon: (3) A statement of the ex~sting rate base of the utility tot regulatory purooses; (4) The lahysicat condition of the utility facilities being purchased or sold; (5) The reasonableness ol the purchase or sales bnce and terms; (6) The imoacts ol the purchase or sale on utility customers, botr~ oositive and negative; (7) Any additional investment required and the abil- ity and willingness ot the purchaser to make tl3at invest- merit, whether the purchaser is the municipality or the entity purchasing the utility from the municipality; (8) Tl~e alternatives to the purchase or sa~e and the potential impact on utility customers if the purchase or sale is not maOe: and (9) The ability, of the ;3urcnaser to provide and main- tain high-Quali~y and cost-effective utility service, whether the purchaser ~s the municipality or the entity purchasing the utility from the mumcipality. The munic~bality snell prepare ~- statement snowing that the purchase or sale is in the public interest, including a summary of the purchaser's exDer,ence in water, sewer, or wastewater reuse utility o~)eration and a snow~ ~ng of financial ability to provide the service, whether the purchaser is the mumciDality or the entity purchasing the utility from the muntcioaiity. H~c~j.--~, 2, cb. ~t s, 6. crt, I i' I i i I I i I I I I I I I I I I I RESOLUTION NO. R-95-55 A RESOLIYrION OF TI~ CITY COUNCIL OF TIlE CITY OF SEBASTIAN, INDIAN RIVER COUNTY, FLORIDA, DIRECTING AND AUTIIORIZING TIlE PU-RCitASE, SALE, ASSUMPTION AND TRANSFER OF ~ REAL AND PERSONAL PROPERTY COMI>~SING ~ UTII,rI~ SYSTEM OWNED AND UTILiZED BY THE CITY OF SEBASTIAN TO PROVIDE WATER AND WASTEWATER SERVICE; PROVIDING FOR FINDING OF A PUBLIC PURPOSE AND NECESSITY; PROVIDING TItAT TIlE ACQUISITION IS IN TI3[E PUBLIC INTEREST IN CONFORMANCE WlTit SECTION 180.301, FLORIDA STATUTES; PROVIDING AUTIIORITY TO COMPLETE TItE PURCItASE, SALE, ASSUMP~ON AND TRANSFER; PROV'[DING FOR CONFLICTS; AND PROVIDING FOR APPLICABILITY AND AN EFFECTIVE DATE. BE IT RESOL~rED BY ~ CITY COUNCIL OF TIlE CITY OF SEBASTIAN, INDIAN RIVER COUNTY, FLORIDA, that: SECTION 1. AUTllORITY. Pursuant to Chapters 166 and 180, Florida Statutes, the City Council (the "Council") of the City of Sebastian, Florida (the "City") has all the powers of local self-government to render municipal services and may exercise any power for municipal purposes, except when expressly prohibited by law. Such power includes the authority to provide for water and wastewater transmission, collection, treatment and disposal services and to acquire and subsequently transfer such utility facilities to the County. SECTION 2. FINDINGS. It is hereby ascertained, determined and declared: (A) The City owns and operates a potable water production, treatment and distribution and a wastewater collection, treatment, disposal and reuse system within and around its incorporated area (the "Sebastian Utility System"). (B) The City Council expressly finds that the purchase, sale and transfer of the Sebastian Utility System to the Cpun__..t resulting in the provision of a County-owned and operated water and wastewater service constitutes a public purpose and is in the best interest of the health, safety and welfare of the City and the inhabitants thereof. Further, the City council expressly finds that the incorporation of the Sebastian Utility System into the Count water and sewer system will provide a greater pubhc use and increased public benefit than the existing uses. SECTION 3. PUBLIC iNTEREST DETERMINATION OF PURCltASE. In consideration of the statement prepared by the City Manager and filed at this public hearing set to consider the purchase and sale of the Sebastian Utility System in conformance with Section 180.301, Florida Statutes, the City Council hereby considers the following: (A) The most recently available income and expense statement of the Sebastian Utihty System; (B) The most recently available balance sheet for the Sebastian Utility System hsting the assets and habilities showing the amount of contributions-in-aid-of-construction and the accumulated depreciation thereon; (C A statement of the existing rate base of the Sebastian Utility System for regulatory purposes; (D) The physical condition of the subject facilities; (E) The reasonableness of the consideration to be exchanged between the City and the County and the terms of the inteflocal agreement which will govern the transfer of the Sebastian Utility System from the City to the County; (F) The impacts of the contemplated transfer on utility customers now served by the City as well as utility customers served by the County, both positive and negative; (G) Any additional investment required and the ability and willingness of the County to make that investment; (H) The alternatives to the contemplated purchase, sale and transfer and the I I i I I I I I I I I I I I I I I I I i' I I I I i I I I i I i i I I I i I potential impact on both County and City utility customers if the Sebastian Utility System is not transferred to the County; (I) The ability of the County to provide and maintain high quality and cost effective utility service; and (J) A statement prepared by the City Manager showing: (1) the transfer of the Sebastian Utility System to the County is in the public interest, including a summary of the County's experience in utility operation; and (2) the County has the financial ability to provide, now and in the future, high quality and cost effective utility services. SECTiON 4. AUTHORITY TO COMPLETE PURCItASE AND SALE. An interlocal agreement between the County and City entitled "Interlocal Agreement Providing for the Transfer and Assumption of the City of Sebastian Water and Wastewater System" which sets forth the consideration for the purchase, sale, transfer and assumption of the Sebastian Utility System is attached as Exhibit "A" to the Resolution. The City hereby authorizes and directs the Mayor to execute such interlocal agreement on behalf of the City in substantially the form of the agreement attached hereto as Exhibit "A" and to deliver a fully executed copy of same to the Clerk of the Circuit Court for recording pursuant to Section 163.01, Florida Statutes. The officials, officers, attorneys and other agents or employees of the City are hereby directed and authorized to do all acts and things required of them by this Resolution and such interlocal agreement, for the full, punctual and complete performance of all of the terms, covenants and agreements contained in this Resolution and such interlocal agreement, and each such official, officer, attorney and other agent or employee is hereby authorized and directed to execute and deliver any and all papers and instruments and to do and cause to be done all acts and things necessary or proper for canying out the transactions contemplated by this Resolution or such interlocal agreement. SECTION 5. CONFLICT. All Resolutions or parts of Resolutions in conflict herewith are hereby repealed. This Resolution supersedes Resolution No. R-95-42. 3 SECTION 6. APPLICABILITY AND EFFECTIVE DATE. This Resolution shall be liberally construed to effect the purposes hereof and shall take effect immediately upon its adoption m accordance with applicable law. The foregoing Resolution was moved for adoption by Councilmember . The motion was seconded by Councihnember and, upon being put to a vote, the vote was as follows: Mayor Arthur L. Firton Vice Mayor Carolyn Corum Councilmember Norma J. Damp Councilmember Kay Halloran Councilmember Louise K. Cartwri~t The Mayor thereupon declared this Resolution duly passed and adopted this day of j__, 1995. CITY OF SEBASTIAN, FLORIDA ATTEST: Kattu3m M. O'Halloran, CMC/AAE City Clerk (SE~) Approved as to Form and Content: Arthur L. Firtion, Mayor Clifton A. McClelland, Jr. City Attorney 4 I '1 i I I I I I I I I I I I I I I I I I I' i I i I I I i I i I I I I I I I I INTERLOCAL AGREEHENT PROVIDING FOR THE TRANSFER OF THE CITY OF SEBASTIAN WATER AND WASTEWATER SYSTEM By and Between CITY OF SEBASTIAN, FLORIDA and INDIAN RIVER COUNTY, FLORIDA ADOPTED SEPTEMBER __, 1995 TABLE OF CONTENTS PAGE SECTION 1.01. SECTION 1.02. SECTION 1.03. SECTION 1.04. ARTICLE I DEFINITIONS AND CONSTRUCTION DEFINITIONS ................ 2 CONSTRUCTION AND iNTERPRETATION. . . 3 INCORPORATION ............... 4 SECTION HEADINGS .............. 4 SECTION 2.01. SECTION 2.02. ARTICLE II REPRESENTATIONS REPRESENTATIONS OF THE COUNTY. REPRESENTATIONS OF THE CITY. ARTICLE III PURCHASE, SALE, AND TRANSFER OF SEBASTIAN UTILITY SYSTEM SECTION 3.01. SECTION 3.02. SECTION 3.03. PURCHASE, SALE AND TRANSFER COVENANT 8 SEBASTIAN UTILITY SYSTEM ......... CONSIDERATION ........... 11 ARTICLE IV CONDITIONS PRECEDENT TO CLOSING SECTION 4.01. SECTION 4.02. SECTION 4.03. SECTION 4.04. DEFEASANCE OF BONDS ........ 11 COUNTY RESOLUTION ASSUMING SYSTEM . 11 INDEMNIFICATION ............. 12 ORDINANCE CONSENTING TO ASSESSMENT WITHIN THE CITY ............ 12 ARTICLE V CLOSING PROCEDURES AND ASSOCIATED MATTERS SECTION 5.01. SECTION 5.02. SECTION 5.03. SECTION 5.04. SECTION 5.05. SECTION 5.06. SECTION 5.07. SECTION 5.08. CLOSING DATE AND PLACE .......... 13 DOCUMENTS FOR THE CLOSING ...... 13 RECORDING FEES AND DOCUMENTARY TAXES. 14 TRANSFER OF FUND BALANCES. . . 14 RIGHT TO ENTER ............ 15 EMPLOYMENT PREFERENCE .......... 15 CONDUCT BETWEEN EXECUTION AND CLOSING. 16 RISK OF LOSS ............... 16 i I '1 I I i I I I I I i I I I I I I I i I I' I I i I I I I I I I I I I I I I I ARTICLE VI OPERATION, MAINTENANCE AND EXPANSION OF THE SEBASTIAN UTILITY SYSTEM SECTION 6.01. SECTION 6.02. SECTION 6.03. SECTION 6.04. SECTION 6.05. SECTION 6.06. SECTION 6.07. SECTION 6.08. COVENANTS EFFECTIVE UPON CLOSING ..... 17 RATES, FEES OR OTHER CHARGES ....... 17 PUBLIC SERVICE TAX ............ 17 LICENSE TO USE CITY RIGHTS-OF-WAY. 18 OPERATION AND MAINTENANCE ........ 19 NO COMPETING SYSTEM ..... 19 IMPOSITION OF SPECIAL ASSESSMENTS. 19 CONCURRENCY; SYSTEM EXPANSION OBJECTIVES ................ 22 SECTION 7.01. SECTION 7.02. SECTION 7.03. SECTION 7.04. SECTION 7.05. SECTION 7.06. SECTION 7.07. SECTION 7.08. ARTICLE VII GENERAL PROVISIONS TIME IS OF THE ESSENCE ......... 24 APPLICABLE LAW; JURISDICTION AND VENUE. 24 FAILURE OF PERFORMANCE .......... 24 NOTICE .................. 25 PROFESSIONAL FEES; COSTS ......... 26 ASSIGNMENT ................ 26 AMENDMENTS AND WAIVERS .......... 26 ENTIRE AGREEMENT; RECORDING ....... 27 APPENDICES: APPENDIX A APPENDIX B APPENDIX C APPENDIX D APPENDIX E APPENDIX F APPENDIX G For~ of Bond Counsel Opinion Form of County Resolution Assuming System Form of Ordinance Consenting to Special Assessments Form of Closing Documents Future Incorporated Area Service Objectives Service Agreements Form of Assignment of Easements ii I I' I I I I I I I I I I I I I I I I I INTERLOCAL AGREEMENT PROVIDING FOR THE TRANSFER AND A~SUHPTION OF THE CITY OF SEBASTIAN WATER AND WASTEWATER SYSTEM THIS INTERLOCALAGREEHENT, is made and entered into as of this day of September, 1995, by and between Indian River County, Florida, a political subdivision of the State of Florida (the "County"), and the City of Sebastian, Florida, a municipal corporation and body politic existing under the laws of the State of Florida (the "City"). W I T N E S E T H: WHEREAS, the City owns and operates a potable water supply, treatment, and distribution system and a wastewater collection, transmission, treatment, disposal and reuse system which provides services within and around its incorporated area; and WHEREAS, the County owns and operates a potable water supply, treatment, and distribution system and wastewater collection, transmission, treatment, disposal and reuse system, both of which are larger than the utility systems owned and operated by the City; and WHEREAS, the County has the power and authority to provide potable water and wastewater infrastructure and service within Indian River County and upon the consent of the City within the incorporated areas of the city of Sebastian; and WHEREAS, the County and the City have held a public hearing on the proposed purchase, sale and transfer of the water and wastewater utility system owned by the City in Indian River County, I of 28 Florida, and made a determination that such a transfer is in the public interest; and WHEREAS, the County and the City, in determining if such a purchase, sale and transfer is in the public interest have considered, at a minimum, all of the factors referenced in Sections 125.3401 and 180.301, Florida Statutes; and WHEREAS, the County desires to acquire all of the assets which are used by the City in providing services through the City's utility system in Indian River County, Florida, and the City desires to transfer those assets to the County; NOW, THEREFORE, in consideration of the mutual promises, covenants, representations and agreements contained herein, together with $10 and other good and valuable consideration exchanged between the parties, the parties to this Interlocal Agreement do undertake, promise and agree for themselves, their permitted successors and assigns as follows: ARTICLE I DEFINITIONS AND CONSTRUCTIO~ SECTION 1.01. DEFINITIONS. AS used in this Interlocal Agreement, the following terms shall have the meanings as defined unless the context requires otherwise: "Agreement,, or "Interlocal Agreement,, means this Interlocal Agreement Providing for the Transfer of the City of Sebastian Water and Wastewater System, including any amendments and supplements hereto executed and delivered in accordance with the terms hereof. 2 of 28 i '1 I I I I I I I I I I I I I I I I I i I' I I I I I I I I I I I I I I I I I ,,Boazd" means the Board of County Commissioners of Indian River County, Florida. ,,Bond Resolution" means Resolution No. R-93-58 as adopted by the city and as amended from time to time. ,,Bon~s" means the Utilities System Revenue Bonds, Series 1993 issued by the City. ,,Co~cil" means the City Council of the city of Sebastian, Florida. ,,Oo~nt~" means Indian River County, Florida. ,,cit~" means the city of Sebastian, Florida. ,,Riverfront Project" means the Indian River Drive Water Distribution Project currently being constructed by the city. ,,sebastian Utilit~ S~ste~,, means the potable water supply, treatment, storage, and distribution system and wastewater collection, transmission, treatment, disposal and reuse system owned by the City and providing services within and around its incorporated area in Indian River County, Florida, and as described and referenced in Section 3.02(A) hereof. SECTION 1.02. CONSTRUCTION AND INTERPRETATION. (A) words that indicate a singular number shall include the plural in each case and vice versa, and words that import a person shall include firms and corporations. (B) The terms "herein," "hereunder," "hereby," "hereof," and any similar terms, shall refer to this Agreement; the term "heretofore" shall mean before the date of execution of this 3 of 28 Agreement; and the term "hereafter" shall mean on or after the initial date of execution of this Agreement. (C) Words that reference only one gender shall include all genders. (D) This Agreement shall be construed as resulting from joint negotiation and authorship. No part of this Agreement shall be construed as the product of any one of the parties hereto. ZECTIO~ 1.03. INCORPORATION. The appendices hereto and each of the documents referred to herein are incorporated and made a part hereof in their entirety by reference. ~CTIO~ 1.04. SECTIO~-~DINGS. 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 REPP~SENTATIONS SECTIO~ 2.01. REPRESENTATIONS OF THE COUNTY. The County makes the following representations, which shall survive any closing hereunder for a period of two years from the date of closing. (A) The County is duly organized and validly existing as a political subdivision of the State of Florida. (B) The County has full power and authority to enter into the transactions contemplated by this Agreement. 4 of 28 I '1 I I I i I I I I I I I I I I I I I I I' I I I I I I I I I I I i I I I I I (C) The County has fulfilled and complied with the provisions of Section 125.3401, Florida Statutes, relative to the purchase and sale of a water, sewer or wastewater reuse utility by a county, or will do so prior to closing. (D) To the best of its knowledge and belief after due inquiry, the County is not in default under any provisions of the laws of the State of Florida material to the performance of its obligations under this Agreement. The Board has duly authorized the execution and delivery of this Agreement and assuming the due authorization, execution and delivery by other parties hereto, this Agreement constitutes a valid and legally binding obligation of the County, enforceable in accordance with its terms, except to the extent that the enforceability thereof may be limited by any applicable bankruptcy, insolvency, reorganization or other similar laws affecting creditors' rights .generally, or by the exercise of judicial discretion in accordance with general principles of equity. (E) To the best of the County's knowledge and belief after due inquiry, the authorization, execution and delivery of this Agreement and the compliance by the County with the provisions hereof will not conflict with or constitute a material breach of, or default under, any existing law, court or administrative regulation, decree, order, or any provision of the Constitution, or the laws of the State of Florida relating to the County or its affairs, or any ordinance, resolution, agreement, lease, or other instrument to which the County is subject or by which it is bound. 5 of 28 (F) There is no action, suit, investigation, or proceeding pending or, to the County's knowledge and belief, threatened against or affecting the County, at law or in equity or before any federal, state, municipal, or other governmental department, commission, board, bureau, agency or instrumentality, wherein any decision, ruling or finding would adversely affect the transactions contemplated hereby or which in any way would adversely affect the validity of this Agreement or any other agreement or instrument to which the County is a party and which is used or contemplated for use in the consummation of the transactions contemplated hereby. (G) The County has not dealt with any broker, salesman or finder in connection with the transactions contemplated herein and no sales commissions of finder's fees are due or payable as a result hereof. SECTION 2.02. REPI~ESENTATIONS OF THE CITY. The City makes the following representations, which shall survive any closing hereunder for a period of two years from the date of closing. (A) The City is duly organized and validly existing as a municipal corpora=ion and body politic existing under the laws of the State of Florida. (B) The City has full power and authority to enter into the transactions contemplated by this Agreement. (C) The City has fulfilled and complied with the provisions of Section 180.301, Florida Statutes, relative to the purchase and sale of a water, sewer or wastewater reuse utility by a city, or will do so prior to closing. 6 of 28 I '1 I I I I I I I I I I i I I I I I I i I' I I I I I I I I I I I I I I I I I (D) To the best of its knowledge and belief after due inquiry, the City is not in default under any provisions of the laws of the State of Florida material to the performance of its obligations under this Agreement. The Council has duly authorized the execution and delivery of this Agreement and assuming the due authorization, execution and delivery by other parties hereto, this Agreement constitutes a valid and legally binding obligation of the City, enforceable in accordance with its terms, except to the- extent that the enforceability thereof may be limited by any applicable bankruptcy, insolvency, reorganization or other similar laws affecting creditors' rights generally, or by the exercise of judicial discretion in accordance with general principles of equity. (E) To the best of the City's knowledge and belief after due inquiry, the authorization, execution and delivery of this Agreement and the compliance by the City with the provisions hereof will not conflict with or constitute a material breach of, or default under, any existing law, court or administrative regulation, decree, order, or any provision of the Constitution, or the laws of the State of Florida relating to the City or its affairs, or any ordinance, resolution, agreement, lease, or other instrument to which the City is subject or by which it is bound. (F) There is no action, suit, investigation, or proceeding pending or, to the City's knowledge and belief, threatened against or affecting the City, at law or in equity or before any federal, state, municipal, or other governmental department, commission, 7 of Z8 board, bureau, agency or instrumentality, wherein any decision, ruling or finding would adversely affect the transactions contemplated hereby or which in any way would adversely affect the validity of this Agreement or any other agreement or instrument to which the City is a party and which is used or contemplated for use in the consummation of the transactions contemplated hereby. (G) The City has not dealt with any broker, salesman or finder in connection with the transactions contemplated herein and no sales commissions of finder's fees are due or payable as a result hereof. ARTICLE III PURCHASE, SALE AND TRANSFER OF SEBASTIAN UTILITY SYSTEM SECTION 3.01. PURCHASE, SALE AND TRANSFER COVENANT. At closing, the County shall purchase and the City shall sell, convey and transfer the Sebastian Utility System to the County upon the terms and subject to the conditions set forth in this Agreement. SECTION 3.02. SEBASTIAN UTILITY SYSTEM. (A) The Sebastian Utility System, shall include those assets, business properties, and rights and obligations both tangible and intangible, that the City acquired from the County in 1992, from General Development Corporation in 1993, or acquired otherwise which it now owns and uses exclusively in conjunction with the operation of the City's potable water supply, treatment, and distribution system, and a wastewater collection, transmission, treatment, and disposal and reuse system, or any such interest it hereafter acquires, relating thereto, including the following: 8 of 28 i 'i I I I I I i I I I I I i I I I I I I i' I I I i I I I I I i I I i i I I I (1) Ail real property and interests, whether recorded in the public records or not, in real property owned and controlled by the City for water and wastewater purposes. (2) All water and wastewater, including reuse and reclaimed water, treatment plants, wells, collection, transmission, distribution, pumping, effluent and disposal facilities of every kind and description whatsoever including without limitation, all trade fixtures, leasehold improvements, lift stations, pumps, generators, controls, tanks, distribution, collection or transmission pipes or facilities, valves, meters, service connections, and all other physical facilities and property installations used for the operation of the City's water or wastewater system, together with an assignment of any existing and assignable third party warranties that relate to completed or in progress construction. (3) The ownership of the Riverfront Project, however, the City shall retain the right to receive the proceeds from the special assessment which it has levied for the Riverfront Project, but the City shall pay the County from the proceeds of such special assessment for the construction of the Riverfront Project as set out in the Agreement dated the llth day of January, 1995 between the City and the County. (4) Ail equipment, vehicles, tools, parts, laboratory equipment, and other personal property owned and used by the City exclusively in connection with the operation of the City' water or wastewater utility system. 9 of 28 (5) Ail water or wastewater easements in favor of the City, or its predecessors in interest, used in conjunction with the City's water or wastewater utility system. (6) All current customer records and supplier lists, built surveys and water and wastewater plans, plats, engineering and other drawings, designs, blueprints, plans and specifications, maintenance and operating manuals, engineering reports, calculations, computer models and studies, accounting, budget and business records and all other information controlled by or in the possession of the City that relates to the description and operation of the City's water or wastewater utility system, inclusive of all pertinent computer records and the lawful use of all computer software which is or was used in the operation of such utility system for billing or customer record keeping purposes. The lawful use of any licensed software or proprietary software developed for the City shall be limited to the recovery and transfer of data to County computers. (7) All necessary regulatory approvals subject to all conditions, limitations or restrictions contained therein; all existing permits and other governmental authorizations and approvals of any kind necessary to construct, operate, expand, and maintain the City's water or wastewater utility system according to all governmental requirements. (B) The Sebastian Utility System shall be conveyed by the City to the County subject to the provisions and requirements of ZO of 28 I '1 I I I I I I I I I I I I i I i i i i I' I I I I I i I i I I I I i I i I i this Interlocal Agreement, but otherwise free and clear of all liens or encumbrances. SECTION 3.03. CONSIDERATION. Subject only to adjustments and prorations as provided herein, the total consideration for the purchase, sale and transfer of the Sebastian Utility System shall be Ten Dollars ($10.00) and: (A) The County's defeasance of the Bonds until their respective maturity dates in accordance with the provisions of the Bond Resolution. The County specifically assumes the City's obligations listed in Appendix F. (B) The covenants and provisions of this Agreement, including those in Article VI hereof, which are to become effective only upon the purchase, sale and transfer of the Sebastian Utility System as contemplated herein. ARTICLE IV CONDITIONS PRECEDENT TO CLOSING SECTION 4.01. DEFEASANCE OF BONDS. Prior to closing the City shall receive an opinion of nationally recognized bond counsel to the effect that the Bonds are no longer outstanding under the Bond Resolution. Such opinion shall be in substantially the form attached hereto as Appendix A. SECTION 4.02. COUNTY RESOLUTION ASSUMING SYSTEM. Prior to closing the County shall adopt a resolution agreeing to accept and acquire the Sebastian Utility System in substantially the form attached hereto as Appendix B. 11 of 28 SECTION 4.03. INDEMNIFICATION. The County shall indemnify and hold harmless the city from any claims, damages or judgments, including attorney fees and costs, arising from the County's acquisition of the System and operation thereof. The County specifically agrees and guarantees that it shall fund this indemnification and save harmless covenant from the County's water and wastewater utility fund. The County will not indemnify and the City will hold the County harmless from any and all liability arising out of the case styled Citrus Utilities. Inc. v. General DeveloDment Utilities, !nc. an~.~i~¥ of Sebastian; Case Number 94- 0202-CA-03 filed in the Circuit Court of Indian River County, Florida. SECTION 4.04. ORDIN~NC~ CONSENTING TO ASSESSMENT WITHIN THE CITY. Prior to closing the city shall adopt an ordinance consenting to the imposition of special assessments by the County relative to the provision of water or wastewater services, facilities or programs. Such ordinance shall only become effective upon closing on the transfer of the Sebastian Utility System as contemplated herein and shall be in substantially the form attached hereto as Appendix C. The City on the written request of the County shall adopt an ordinance consenting to the establishment of a municipal service benefit unit or the imposition of special assessments by the County within the City for the express purpose of the County providing water and wastewater utility service facilities. 12 of 28 i '1 i I I I i I i i I I I I I I I i I I I' i i I I I i I i i I I i I I I I I ARTICLE V CLOSING PROCEDUI~ES AND ASSOCIATED MATTERS SECTION 5.01. CLOSING DATE AND PLACE. (A) It is anticipated that the purchase, sale and transfer of the Sebastian Utility System contemplated by this Agreement will be closed on or before September 30, 1995. The time for closing may be extended by either party no later than October 29, 1995. The closing shall be held at the offices of the County, or other offices mutually agreed upon by the parties. SECTION 5.02. DOCUMENTS FOR THE CLOSING. (A) The City shall furnish at closing a certificate reaffirming the City's representations and warranties hereunder, the deed, and the bill of sale, all in substantially the form respectively attached hereto as Appendix D. (B) The County shall furnish at closing the closing statement, a certificate reaffirming the County's representations and warranties hereunder in substantially the form attached hereto as Appendix E. (C) From time to time after closing, each party hereto shall, upon request of the other, take reasonable actions to execute, acknowledge and deliver, or cause to be executed, acknowledged and delivered, all such further acts, deeds, assignments, transfers or other documentation for (1) confirming or correcting title in the name of the County or perfecting undisputed possession by the County of the Sebastian Utility System, or (2) otherwise fulfilling the obligations of the parties hereunder. The City shall furnish 13 of 28 the County at closing an assignment of the easements it obtained from General Development Utilities, Inc. under the Agreement dated October 20, 1993, however, the City does not warrant the title to such easements and the City will not assume any obligations to cure any defects in title or possession for such easements. SECTION 5.03. RECORDING FEES AND DOCUMENTARY TAXES. (A) Recording fees to record the deed and any other instruments necessary to transfer title of the Sebastian Utility System to the County shall be paid by the County. (B) The Sebastian Utility System is being transferred and conveyed to the County by the City for public purposes and therefore this transaction is i~une from documentary stamp tax. However, in the event any documentary tax is applicable, the County shall pay the cost of the documentary stamps to be affixed to any deed or other instruments of conveyance as the benefits accruing to the County in the public purpose of this transfer warrant such expenditure. SECTIO~ 5.04. TRANSFER OF FUND BALANCES. At closing the City shall transfer to the County the account balances from the following Sebastian Utility System related accounts: Reserve Subaccount, Utility System R & R Account,.Sewer Impact Fee Account, Water Impact Fee Account, Customer Deposits, and Project Account. The balance in the accounts as of June 30, 1995 was as follows: Payment Subaccount Reserve Subaccount Utility System R & R Account 14 of 28 64,374 353,847 10,000 I 'I I I I I I i I I i I I I i I I I I I I' i i I i I I I I I I I I I I i I I Sewer Impact Fee Account Water Impact Fee Account Customer Deposits Accounts Receivable Project Account TOTAL: 10,801 173,997 74,525 95,394 $ 4~, 532 $1,237,470 However, the parties recognize the amounts in the accounts may vary from the above described amounts on the date of closing as the City is operating an on-going business. The City will transfer to the County the account balances in the accounts on the date of the closing. SECTION 5.05. RIGHT TO E~"fER. Prior to closing, the County shall have the right, at any reasonable time with prior notice to the City, to enter upon the City's property to inspect the Sebastian Utility System, to familiarize itself with day-to-day operations, to review the operational practices of the City, and to ensure compliance with any and all federal and state regulatory requirements. S~CTION 5.06. EMPLOY~IE~F~ PREFERENCE. To the extent that the County may lawfully do so and to the extent that the County has any position available, the County shall grant a preference in hiring to any non-management employee of the city currently employed in the operation of the Sebastian Utility System. However, any such applicants must meet the County's pre-employment screening criteria. this Section shall be at will. employment qualification and All employment resulting from 15 of 28 SECTION 5.07. CONDUCT BETWEEN EXECUTION AND CLOSING. (A) Upon the execution of this Agreement, the City shall continue to provide water and wastewater treatment to its current customers in the ordinary and usual manner. (B) The City shall prudently maintain the Sebastian Utility System to ensure its proper operation through closing. (C) Prom and after the date of the execution of this Agreement, the City shall not, without prior written consent of the County, dispose of or encumber any part or portion of the Sebastian Utility System, except any non-material transactions that occur in the ordinary course of the City's business. The City shall fully apprise the County of all such transactions at closing. (D) From and after the date of the execution of this Agreement, the City shall not, without prior written consent of the County, (1) enter into or modify any effluent reuse or disposal agreements affecting the Sebastian Utility System or (2) enter into or modify any developer, water or wastewater service agreement affecting the Sebastian Utility System. SECTION 5.08. RISK OF LOSS. At all times prior to and through the day of closing, the City shall maintain adequate fire and extended insurance coverage for the cost of any repairs to the Sebastian Utility System that may be required by casualty damage. The risk of loss during the said period of time shall fall upon the City. The risk of loss shall pass to the County at closing. 16 of 28 i '1 I I I i I i I I I I i I i I I I i I I' I I I i I I I i I I I I I I I i I ARTICLE VI OPERATION, MAINTENANCE AND EXPANSION OF THE SEBASTIAN UTILITY SYSTEM SECTION 6.0!. COVENANTS EFFECTIVE UPO~ CLOSING. Only upon the purchase, sale, transfer and assumption of the Sebastian Utility System as contemplated herein shall the covenants and provisions contained in this Article become effective. SECTION 6.02. RATES, FEES OR OTHER CHARGES. (A) To the extent permitted by law, the uniform county utility policies shall apply within the City and there shall be no discrimination between City and County residents. Ail rates, fees, and charges for water and sewer service shall be established exclusively by the County. At no time shall rates, fees, and charges, including the rate equalization charge, for any class or user or property owner within the City exceed the total charged by the County, including the County's franchise fee, for a comparable class of users or property owners within the unincorporated areas of the County. SECTION 6.03. PUBLIC SERVICE TAX. (A) The City at all times shall have the power and authority to impose and levy any public service tax now or hereafter authorized on the purchase of water and, to the extent permitted by law, the County shall collect such public service tax at the time of payment for such service. Accordingly, the County shall maintain its water customer records in such a manner as to easily service provided in incorporated and distinguish between unincorporated areas. 17 of 28 The County shall not impose a tax on the purchase of (B) water or wastewater services within the City. SECTION 6.04. LICENSE TO USE CITY RIGHTS-OF-WAY. (A) The City hereby grants and conveys to the County a license to use all City rights-of-way now or hereafter acquired by the city for the purpose of providing water and wastewater services. However, such a grant shall require the County to relocate any water or wastewater utility facilities in the event that such facilities interfere or are inconsistent with the use of the City rights-of-way for transportation or drainage purposes. (B) The City, on application from the county, shall grant the County a written permit to locate water and sewer lines within the city right-of-way. Upon the City granting such written permit to the County, notwithstanding the above language, if the city requires the County to remove its lines within a permitted right- of-way within five (5) years after the issuance of the permit, the City shall pay for the cost of the relocation of such lines. (C) The license granted and conveyed to the county hereunder, shall include by way of example and not limitation, the authority and obligation to construct, maintain, repair, replace, operate, remove and relocate water and wastewater utility facilities. In doing so the County shall cause as little disruption to the public as possible, shall attempt to prevent the creation of obstructions or conditions dangerous to the p~blic, and shall promptly repair any damage to or disruption of public or private property. 18 of 28 I '1 I I I I I I I i I I I I I i I I I I I' I i I I I I I I I I I I I I I I I SECTION 6.05. OPERATION ~ND ~iNTE~CE. The County shall have exclusive possession of and assume all responsibility for operation and maintenance of the Sebastian Utility System. The County shall incorporate and integrate the Sebastian Utility System into the county's existing water and wastewater utility system and shall construct, expand, maintain, repair, operate and administer the resulting combined water and wastewater utility system in an orderly and efficient manner, and collect and account for all revenues derived therefrom. The County shall have an affirmative duty, and is hereby authorized by the City, to provide, in a manner consistent with this Agreement, water and wastewater service within the incorporated area of the city under County ordinances, resolutions, regulations, and policies regardless of whether a lot or parcel of land connected with or provided service by the County's water and wastewater system is located in the incorporated or unincorporated area. SECTION 6.06. NO COMPETING SYSTEM. To the full extent permitted by law, neither the City nor the County will grant or cause, consent to, or allow the granting of any franchise, certificate of authorization, or permit to any person, firm, corporation, or public body, agency or instrumentality whatsoever (other than the County) for the furnishing of water or wastewater services to or within the incorporated area of the City. SECTION 6.07. iMPOSITION OF SPECIAL ASSESSMENTS. (A) Provided the County has, or has identified within its most recently adopted water or wastewater capital improvement plan, 19 of 28 adequate treatment capacity, the City shall have the power and authority to finance, construct, acquire or extend water or wastewater transmission, distribution or collection facilities and improvements, cause the connection of said improvements to the County treatment facilities, and impose special assessments therefore on any benefitted parcels lying within the incorporated area of the City or in any adjacent unincorporated area. (B) The County shall also have, and the city hereby consents to, the power and authority to finance, construct, acquire or extend water or wastewater transmission, distribution or collection facilities and improvements and impose special assessments therefore upon benefitted parcels located within the incorporated area of the City. However, the County shall first notify the City of its intent to embark upon any special assessment project within an incorporated area of the City and provide a period of 60 days for the City to opt to finance, construct, acquire or extend the proposed facilities and improvements and impose special assessments upon benefitted parcels. Such notice from the County shall include a description of the project, plans and specifications, an assessment plat, estimated total cost, a proposed assessment roll, the proposed method and estimated costs of financing, and the proposed apportionment method showing the proposed assessment for each benefitted parcel. (C) The County may request in writing that the City impose a special assessment for water or wastewater improvements under the provisions of Chapter 170, Florida Statutes or in the alternative, 20 of 28 I '1 I I I I I i I I I I I I I I I I I I I' I I I I I I I I I I i I I I I I I pursuant to the City's home rule powers. Such request from the County shall include a description of the project, plans and specifications, an assessment plat, estimated total cost, a proposed assessment roll, the proposed method and estimated costs of financing, and the proposed apportionment method showing the proposed assessment for each benefitted parcel. After receiving such information, the city shall conduct a hearing under either Section 170.08 F.S. or the city's procedures for levying a home rule special assessment as to the propriety and advisability of making the improvements and funding them with special assessments. Following the testimony at the hearing, the Council shall make a final decision on whether to levy the special assessments. If the Council elects not to levy the special assessments, the County may proceed by law to levy the special assessments and the City's election not to levy the special assessment shall constitute complete and full authority for the County to levy such special assessment. (D) Any construction, acquisition, or extension of water or wastewater transmission, distribution, or collection facilities or improvements and any connections to the County water or wastewater system shall comply with all uniform construction standards and connection requirements adopted by the County from time to time. (E) The City will own any water or wastewater improvements which are constructed with funds for which the city imposes special assessments. After the improvements are constructed, the City may transfer such improvements to the County and the County shall 21 of 28 accept the improvements as part of the County Utility System. While the improvements are in the ownership of the City, the County shall operate, maintain, repair, and replace, if necessary, such improvements as if the improvements were part of the County's utility system. The County's cost to operate, maintain, repair and replace such improvements shall be included in the County's usual utility charge to its customers. SECTIO~ 6.08. CONCURRENCY; SYSTEM EXPANSION OBJECTIVES. (A) The construction, expansion or acquisition of any water or wastewater utility facilities by the County, or major alterations which affect the quantity or quality of the level of service provided or available within the incorporated areas of the City shall be consistent with the applicable local government comprehensive plans adopted pursuant to Chapter 163, Part II, Florida Statutes; provided, however, no local government comprehensive plan shall require the County or the City to construct, expand, or perform a major alteration of any public facility which will result in the impairment of covenants and agreements relating to any bonds or other obligations issued by either the County or the City. (B) The County and the City hereby establish common goals and objectives to extend and expand the resulting water and wastewater system to be operated by the County both inside and outside of the incorporated area of the city: (1) Within 18 months of the transfer of the Sebastian Utility System to the County as contemplated in this Agreement, to 22 of 28 I '1 I I I I I i I I I I I I I I i I I I I' I I I I I I I I I I I I I I I I I furnish water service to all lots or parcels within the area designated as Phase I on Appendix E hereof. (2) Within 36 months of the transfer of the Sebastian Utility System to the County as contemplated in this Agreement, to furnish water service to all lots or parcels within the area designated as Phase II on Appendix E hereof. (3) Within 54 months of the transfer of the Sebastian Utility System to the County as contemplated in this Agreement, to furnish water service to all lots or parcels within the area designated as Phase III of Appendix E hereof. (4) To timely cooperate, plan, advance, expand and construct additional water and wastewater treatment facilities to assure such treatment capacity is available concurrent with the demands of new growth or the expansion or extension of water or wastewater transmission, distribution or collection facilities by either the City or the County. The County will furnish water or wastewater service earlier than the time period established in this Section if a public health problem occurs or the demand for such service makes the service economically feasible. The County will provide wastewater service simultaneously with the installation of public water service in any designated area if the City requests such service in writing, and the County has the wastewater treatment capacity available and a financing plan approved by the City and County is developed for providing such service. 23 of 28 ARTICLE VII GENERAL PROVISIONS SECTION 7.01. TIME IS OF THE ESSENCE. Time is of the essence in this Agreement. Time periods specified in this Agreement shall expire at midnight on the date stated unless the parties agree in writing to a different date or time. Any time period provided for herein which ends on Saturday, Sunday or a legal holiday shall extend to 5:00 p.m. on the next business day. SECTION 7.02. APPLICABLE LAW~ JURISDICTION AND VENUE. (A) This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. (B) The parties to this Agreement expressly consent to the jurisdiction of and agree to suit in any court of general jurisdiction in the State of Florida, whether state, local or federal, and further agree that venue shall lie in Indian River County, Florida. SECTION 7.03. FAILURE OF PEP~FORMANCE. (A) A breach of this Agreement shall mean a material failure to comply with any of the provisions of this Agreement. If any party breaches any obligation herein, then, upon receipt of written notice by the non-breaching party, the breaching party shall proceed diligently and in good faith to take all reasonable actions to cure such breach and shall continue to take all such actions until such breach is cured. (B) If either party fails, neglects or refuses to perform this Agreement, the non-breaching party may seek specific 24 of 28 I I I I I I I I I I I I I I I I I I I i' I I I i I I i I I I I I I I I I I performance without thereby waiving any action for damages resulting from the other party's breach. SECTION 7.04. NOTICE. (A) Ail 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: To the County: County Administrator 1840 25th Street Veto Beach, Florida 32960 with a copy to: County Attorney 1840 25th Street Veto Beach, Florida 32960 To the City: City Manager 1225 Main Street Sebastian, Florida 32958 with a copy to: City Attorney Potter, McClelland, Marks & Heaty, P.A. 700 Babcock Street, Suite 400 Melbourne, Florida 32901 (B) Any written notice given to one person in subsection (A) of this Section shall also be copied and provided to all other persons identified in subsection (A). (C) The parties may, by notice in writing given to the others, designate any future or different addresses to which the subsequent notices, certificates or other communications shall be 25 of 28 sent. Any notice shall be deemed given on the date such notice is delivered by hand or by facsimile transmission or 5 days after the date mailed. SECTIO~ 7.05. PROFESSIONAL FEES; COSTS. (A) Each party shall be responsible for securing its own counsel for representation relative to the negotiation of this Agreement, and all other matters associated with performance, cancellation or closing hereunder; unless otherwise specified herein, and each party shall be responsible for the payment of the fees of its own attorneys, bankers, engineers, accountants, and other professional advisors or consultants in connection therewith. (B) In any litigation arising out of this Agreement, the prevailing party in such litigation shall be entitled to recover reasonable attorney's fees and costs. SECTIO~ 7.06. ASSIGNMENT. Neither the City nor the County shall have the power or authority to assign this Agreement or any of their rights, duties or obligations hereunder to a third party. This Agreement is solely for the benefit of the County and the City, and no claim or cause of action shall accrue to or for the benefit of any third party by reason hereof. SECTIO~ 7.07. 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 26 of 28 I 'I I I I I I I i I I I i I I I I I I I I' i I I I I I I I I I I I I I I I I Agreement, whether or not similar, unless otherwise expressly provided. SECTIO~ 7.08. ENTIRE AGREEMENT; RECORDING. (A) This Agreement is the entire agreement between the parties pertaining to the subject matter hereof, and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions of the agreements, understandings, negotiations and discussions of the parties, whether oral or written, and there are not warranties, representations or other agreements between the parties in connection with the subject matter hereof, except as specifically set forth herein. (B) Upon execution hereof by all parties, the County and the City shall deliver a fully executed copy of this Agreement, together with all appendices hereto, to the Clerk of the Circuit Court for recording pursuant to Section 163.01, Florida Statutes. IN WITNESS WHEREOF, the County and the city have caused this Interlocal Agreement to be duly executed and entered into on the date first above written. BOARD OF COUNTY COMMISSIONERS OF INDIAN RIVER COUNTY, FLORIDA ( SEAL) By: ATTEST: JEFFREY K. BARTON, Clerk of the Circuit Court and Ex-officio Clerk of the Board of County Conumissioners of Indian River County, Florida Chairman By: Deputy Clerk 27 of 28 THE CITY OF SEBASTIAN, FLORIDA (SEAL) By: Mayor ATTEST: KATHRYN M. O'HALLORAN, City Clerk By: · ~ Clerk .~~/] 28 of 28 I '1 I I I I i I I I I I I I I I I I I I I' I I I I i I I I I I I I I I I I I ~PPENDIX A (form of opinion of County Bond Counsel) (Date of Closing) City Council city of Sebastian Sebastian, Florida council Members: We have acted as Bond Counsel for Indian River County, Florida (the "County") in connection with the issuance of the County's $ Utilities System Revenue Bonds, Series 1995 (the Bonds") issued for the purpose of acquiring a water and wastewater system from the City of Sebastian, Florida (the "City") and refunding the city's Utilities System Revenue Bonds, Series 1993 (the "City Bonds"). In such capacity, we have examined the following: (i) Resolution No. R-93-67 of the City, as supplemented (the City Bond Resolution"); (ii) the Escrow Deposit Agreement, dated as of .., 1995, between the County and (the "Escrow Deposit Agreement") and (iii) such other records, documents, certificates, proceedings and questions of law as we have considered necessary to enable us to render this opinion. Capitalized terms used herein have the meanings set forth in the City Bond Resolution. Based upon such examination, we are of the opinion that, assuming the deposit and the application of cash and Refunding Securities with the escrow agent in accordance with the terms and provisions of the Escrow Agreement, and in reliance upon the verification report of , independent public accountants, such deposit and application will result in the City Bonds being discharged and defeased, and such city Bonds shall no longer be outstanding under the terms of the city Bond Resolution. Very truly yours, A-1 i i' i i I I i i i I I i I I i i I i I APPENDIX B County Resolution Assuming System [to be provided by Indian River County] I I' I I I I i I I I i I I I I I I I I RESOLUTION NO. 95-102 A RESOLUTION OF THE BOARD OF COUNTY COMEISSIONERS OF INDIAN RIVER COUNTY, FLORIDA PROVIDING FOR THE ACQUISITION FROM THE CITY OF SEBASTIAN, FLORIDA OF !TS WATER AND SEWER SYSTEM; APPROVING AND AUTHORIZING THE EXECUTION AND DELIVERY OF AN INTERLOCAL AGREEMENT PROVIDING FOR THE TRANSFER OF THE CITY OF SEBASTIAN WATER kND WASTEWATER SYSTEM; PROVIDING FOR THE DEFF~ISANCE OF THE $5,000,000 CITY OF SEBASTIAN, FLORIDA UTILITIES SYSTEM REVENUE BONDS, SERIES !993 IN CONNECTION THEREWITH; APPROVING AND AUTHORIZING THE EXECUTION AND DELIVERY OF AN ESCROW DEPOSIT AGREEMENT; AUTHORIZING THE PURCHASE OF FEDERAL SECURITIES; APPOINTING AN ESCROW AGENT; ESTABLISHING !TS INTENT TO REIMBURSE CERTAIN ACQUISITION COSTS INCURRED WITH PROCEEDS OF FU~ TAX- EXEMPT FINANCING; MAKING CERTAIN OTHER COVENANTS AND AGREEMENTS IN CONNECTION THEREWITH; PROVIDING CERTAIN OTHER MATTERS IN CONNECTION THEREWITH; AND PROVIDING AN EFFECTIVE DATE. BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF INDIAN RIVER COUNTY, FLORIDA, that: SECTION 1. AUTHORITY FOR THIS RESOLUTION. This Resolution is adopted pursuant to the Constitution of Florida, Section !25.01, Florida Statutes, and other applicable provisions of law. SECTION 2. DEFINITIONS. Unless the context otherwise requires, the terms used in this Resolution shall have the meanings specified in th'is section. Words importing singular number shall include the plural number in each case and vice versa and words importing persons shall include firms and corporations. "Acquisition Agreement" shall mean that certain Int~rlocal Agreement for the Transfer of the City of Sebastian Water and Wastewater System between the City and the County, the form of which is attached hereto as Exhibit A, pursuant to which the County is to acquire the City System from the City. "City,, shall mean the City of Sebastian, Florida. "City Bonds" shall mean the outstanding principal amount of the City of Sebastian, Florida Utilities System Revenue Bonds, Series 1993. "City Bond Resolution" shall mean Resolution No. R-9~-67 as adopted by the City and as amended from time to time. "City System" shall mean the water and sewer system of the city existing on the date of the acquisition thereof by the County in accordance with the terms hereof. "County" shall mean Indian River County, Florida, a political subdivision of the State of Florida. "Paying Agent" shall mean, am to the City Bonds, The Bank of New York (formerly Barnett Banks Trust Company, ~.A.), its successors and assigns, as paying agent and registrar for the City Bonds. "Registrar" shall mean, as to the City Bonds, the Paying Agent. "Resolution" shall mean this resolution as from time to time amended or supplemented, in accordance with the terms hereof. "System" shall mean the water and sewer systems owned and operated by the County, wherever located in the County, together with any and all improvements, extensions and additions thereto hereafter constructed or acquired and any physically independent water or sewer system hereafter made a part of the System by resolution of the Board of County Commissioners together with any and all improvements, extensions and additions thereto hereafter constructed or acquired. 2 i '1 I i I i I I I I I I I i I I I I i I I' I i I I I I I i I I I I I I I I I SECTION 3. FINDINGS. I~ is hereby ascertained, determined and declared that: (A) The County now owns, operates and maintains the System and will con%inue to derive revenue from the rates, fees, rentals and other charges made and collected for the service of such system. (B) The County deems it necessary and in its best interest of and in furtherance of the health and safety of the citizens and residents of the County and the City to provide for the acquisition of the City System from the City. The acquisition program herein described will be advantageous to the County by allowing it to operate an integrated System within the County in order to better serve the citizens and residents of the County. SECTION 4. AUTHORIZATION OF ACQUISITION OF THE CITY SYSTEM. There is hereby authorized the defeasance of the City Bonds in the manner provided herein and in the Acquisition Agreement; and the acquisition of the City System, in accordance with the terms and conditions of the Acquisition Agreement, is hereby authorized. The execution and delivery of the Acquisition Agreement, in substantially the form attached hereto as Exhibit A, is hereby approved and the Chai_~man, Vice Chairman and County Clerk are '% hereby authorized and directed to execute the Acquisition Agreement in substantially the form attached hereto as Exhibit A to indicate the County's acceptance thereof, subject to such changes, insertions or omissions as may be approved by the Chairman, Vice Chairman and County Clerk executing same, and the execution of the 3 acceptance of the Acquisition Agreement by such authorized officer of the County shall be conclusive evidence of any such approval. Following the execution and delivery of the Acquisition Agreement by the County and the City, the County Clerk is hereby authorized and directed to cause the Acquisition Agreement to be recorded in the public records of Indian River County, Florida. Upon the acquisition of ~he City System, the City System shall be integrated into the System to be operated by the County thereafter as part of the System, and no separate accounting for the City System shall be required thereafter. SECTION 5. AUTHORIZATION OF DEFEASANCE OF CITY BONDS. Subject and pursuant to the provisions hereof, the obligations of the City known as the City of Sebastian, Florida Utilities System Revenue Bonds, Series 1993 are authorized to be defeased by the County in the aggregate principal amount of not exceeding $5,000,000. At the closing of the acquisition and transfer of the city System to the County, the County shall deliver to the escrow holder (the "Escrow Holder") under the Escrow Deposit Agreement, as hereinafter defined, defined in the City sufficient to enable Securities, in escrow, either Federal Securities (as Bond Resolution), or cash in an amount the Escrow Holder to acquire Federal each in a principal amount and bearing interest and maturing at such time as to enable the Paying Agent for the City to redeem the City Bonds on their respective maturity dates and to defease the lien of the City Bond Resolution on the City System in accordance with Section 5.07 of the City Bond Resolution. I '1 I I I I i I I I I I I I I I I I I I I' I i I I I I I i I I I I I I I i I SECTION 6. ESCROW DEPOSIT AGREEMENT. The execution and delivery of the Escrow Deposit Agreement (the "Escrow Deposit Agreement") to provide for the deposit of Federal Securities with the Escrow Holder to accomplish the defeasance of the City Bonds, in substantially the form attached hereto as Ext~ibit B, is hereby approved, and the Chairman, Vice Chairman and County Clerk are hereby authorized and directed to execute the Escrow Deposit Agreement in substantially the for/~ attached hereto to indicate the County's acceptance thereof, subject to such changes, insertions or omissions as may be approved by the Chairman, Vice Chairman and County Clerk executing same, and the execution of the acceptance of the Escrow Deposit Agreement by such authorized officer of the County shall be conclusive evidence of any such approval. SECTION 7. PURCHASE OF FEDERAL SECURITIES. The Clerk of the Circuit court in and for Indian River county, in consultation with the Director of the office of Management and Budget, is hereby authorized to select and purchase the Federal Securities for deposit to the Escrow Account created under the Escrow Deposit Agreement. SECTION 8. ESCROW HOLDER. The Bank of New York is hereby appointed to serve as Escrow Holder under the Escrow Deposit Agreement. SECTION 9. DECLARATION OF INTENT. The County hereby expresses its intention to be reimbursed from proceeds of a future tax-exempt financing for capital expenditures to be paid by the County in connection with the acquisition of the City System through the ¥/~ defeasance of the City Bonds as herein authorized. Pending reimbursement, the County expects to use funds on deposit in the County's water and sewer system enterprise fund and/or the County's general fund to pay the costs of acquiring the City System through the defeasance of the City Bonds. It is not reasonably expected ~hat the total amount of debt to be incurred by the County to reimburse itself for expenditures paid with respect to the acquisition of the City System will exceed $5,000,000. This Resolution is intended to constitute a "declaration of official intent" within the meaning of Section 1.150-2 of the Income Tax Regulations. SECTION 10. EXECUTION OF DOCUMENTS. The Chairman and Vice Chairman of the Board of County Commissioners, the County Finance Director, the County Administrator and the County Attorney or any other appropriate officers of the County are hereby authorized and directed to execute any and all certifications or other instruments or documents required by this Resolution, the Acquisition Agreement, the Escrow Deposit Agreement or any other document referred to above as a prerequisite or precondition to the acquisition of the City System through the defeasance of the City Bonds, and any representation made therein shall be deemed to be made on behalf of the County. ' SECTION 11. SEVERABILITY. If any one or more of the covenants, agreements or provisions of this Resolution should be held contrary to any express provision of law or contrary to the policy of express law, though not expressly prohibited, or against I '1 I I I I I I I i i I I I I I I I I I I' I I I I I I I I I I I I I I I I I public policy, or shall for any reason whatsoever be held invalid, then such covenants, agreements or provisions shall be null and void and shall be deemed separate from the remaining covenants, agreements or provisions of this Resolution or of the City Bonds assumed hereunder. SECTION 12. INCONSISTENT R~SOLUTIONS. Ail prior resolutions of the County inconsistent with the provisions of this Resolution are hereby modified, supplemented and amended to conform with the provisions herein contained. SECTION 13. EFFECTIVE DATE. The provisions of this Reso- lution shall take effect immediately upon its passage. PASSED AND ADOPTED the day of , 1995. BOARD OF COUNTY COM~{ISSIONERS INDIAN RIVER COUNTY, FLORIDA (SEAL) ATTEST: Chairman County Clerk 7 ESCROW DEPOSIT AGREEMENT This ESCROW DEPOSIT AGREEMENT, dated as of , 1995, by and among The CITY OF SEBASTIAN, FLORIDA, a municipal corporation of =he Sna%e of Florida (the "City"), INDIAN RIVER COUNTY, FLORIDA, a political subdivision of the State of Florida (the "County") and [ESCROW HOLDER], a national banking association organized under the laws of the United States of America, as Escrow Holder (the "Escrow Holder"); W I TNE S S E TH : WHEREAS, the City has previously authorized and issued obligations of the City as hereinafter set forth defined as the "Defeased Bonds", the proceeds of which were used to finance the acquisition and/or construction of certain improvements to the City's combined utility system (the "System"); and WHEREAS, the City now desires to transfer and sell the System to the County pursuant to the provisions of an Interlocal Agreement between the City and the County (the "Acq%lisition Agreement"); and WHEREAS, pursuant to the Acquisition Agreement, the City and the County have agreed that the purchase price to be paid by the County for the System (the "Acquisition Price") will be the amount necessary to provide for the defeasance of the Defeased Bonds; and WHEREAS, the amount of the Aggregate Debt Service (as hereinafter defined) for such Defeased Bonds is set forth on Schedule A; and WHEREAS, the City has agreed to provide for payment of the Aggregate Debt Service of the Defeased Bonds by depositing with the Escrow Holder pursuant to the provisions hereof and of the Acquisition Agreement, cash and Federal Securities provided by the County, the principal of and interest on which will be at least equal to such Aggregate Debt Service; and W/4EREAS, the City and the County have determined that the amount to be on deposit from time to time in the Escrow Account, as defined herein, will be sufficient to pay the Aggregate Debt Service; NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained, the City, the County and the Escrow Holder agree as follows: mean: Section 1. Definitions. As used herein, the following terms (a) "Aggregate Debt Service" means, as of any date, the sum of all present and future Annual Debt Service payments then remaining unpaid with respect to the Defeased Bonds. "Agreement,, means this Escrow Deposit Agreement. (c) "Annual Debt Service" means, in any year, the principal of and interest on the Defeased Bonds coming due in such year as shown on Schedule A attached hereto. (d) "Call Date" shall have the meaning set forth in the Redemption Resolution. "City" means the City of Sebastian, Florida. (f) "City Resolution" means Resolution No. duly adopted by the governing body of the City on , 1495, as amended and supplemented from time to time, authorizing the Acquisition Agreement and the defeasance of the Defeasance Bonds pursuant thereto. (g) "County,, means Indian River County, Florida. (h) "County Resolution" means Resolution No. ~, duly. adopted by the governing body of the County on , 1995, as amended and supplemented from time to time, authorizing the Acquisition Agreement and the purchase of the System pursuant thereto. (i) "Defeased Bonds" means the City of Sebastian, Florida, Utilities System Revenue Bonds, Series 1993, as described in Schedule A attached hereto. (j) "Escrow Account" means the account established and held by the Escrow Holder pursuant to this Agreement, in which cash and investments will be held for payment of the Defeased Bonds and the Expenses. (k) "Escrow Holder" means (1) "Escrow Requirement,, means, as of any date of calcula- tion, the sum of an amount in cash and principal amount of ~ederal Securities in the Escrow Account which, together with the interest due on the Federal Securities, will ~e sufficient to pay, as the installments thereof become due, the Aggregate Debt Service and to pay when due all Expenses then unpaid. (m) "Expenses" means the expenses (including contractual obligations incurred with respect to the Defeased Bonds) set forth on Schedule B attached hereto and hereby made a part hereof. I '1 I I I I I I I I I I i I I I I i I I i' I I I I I I I I I I i I I i I I I (n) "Federal Securities'" means direct obligations of the United States of America and obligations ~he principal of or in%eres~ on which are fully guaranteed by the United States of America, none of which permit redemption prior to maturity at the option of the obligor. (o) "Paying Agent" shall mean (1) with 'respec~ to the Bonds, The Bank of New York (formerly known as' Barnett Banks Trust Company, N.A.), Jacksonville, Florida. '~ Section 2. DePosit of Funds. :~The City hereby deposits $ with the Escrow Holder in immediately available funds, to be held in irrevocable escrow by the Escrow Holder and applied solely as provided in thi$-~greement. The City represents that: (a) Such funds are all derived as follows: (1) $ the County, and from the Acquisition Price provided by [(2) $ transferred from the funds held for the payment of the Defeased Bonds.] (b) Such funds, when applied pursuant to Section 3 below, will at least equal the Escrow Requirement as of the date hereof. Section 3. Use and .Investment of Funds. The Escrow Holder acknowledges receipt of the sum described in Section 2 and agrees: (a) to hold the funds in irrevocable escrow during the term of this Agreement, (b) to deposit the sum of $ from such sum in cash in the Escrow Account, (c) to immediately invest $ of such funds by the purchase of the Federal Securities set forth on Schedule C attached hereto, (d) to deposit in the Escrow Account, as received, the receipts of maturing principal of and interest on the Federal Securities in the Escrow Account. ' (e) there will be no investment of funds except as set forth in this Section 3 and except as set forth in Section 5. Section 4. Payment of Defgased ~ond$ and~ExD~nses. (a) Defeased Bonds. On each interest payment date for the Defeased Bonds, ~he Escrow Holder shall pay to the Paying Agent for the Defeased Bonds, solely from the cash on hand in the Escrow Account, a sum sufficient to pay that portion of the Annual Debt Service for the Defeased Bonds coming due on such date, as shown on Schedule A. lb) Expenses. On each of the due dates as shown on Schedule B, ~e Escrow Holder shall, solely from the cash on hand in the Escrow Account, pay the portion of the Expenses coming due on such date to the appropriate payee -or payees designated on Schedule B and designated by separate certificate of the City. (c) Surplus. on each interest payment date for the Defeased Bonds, after making the payments from the Escrow Account described in Subsections 4(a) and (b), the Escrow Holder shall, at the written re.~uest of the County, pay to the County any remaining cash in the Escrow Account in excess of the Escrow Requirement as designated in such written request, to be used for any lawful purpose of the County. (d) Priorit¥...of P~ments. The holders of the Defeased Bonds shall have an express first lien on the funds and Federal Securi- ties in the Escrow Account until such funds and Federal Securities are used and applied as provided in this Agreement. If the cash on hand in the Escrow Account is ever insufficient to make the payments required under Subsection 4(a), all of the payments required under Subsection 4(a) shall be made when due before any-' payments shall be made under Subsections 4(b) or 4(c). Section 5. Reinvestmen.~. (a) Except as provided in Section 3 hereof, and in this Section, the Escrow Holder shall have no power or duty to invest any funds held under this Agreement or to sell, transfer or other- wise dispose of or make substitutions of the Federal Securities held hereunder. (b) At the.. written direction of the County and upon compliance with the conditions hereinafter stated, the Escrow Holder shall sell, transfer, otherwise dispose of or request the redemption of any of the Federal Securities acquired hereunder and shall either apply the proceeds thereof to the full discharge and satisfaction of the Defeased Bonds or substitute other Federal Securities for such Federal Securities. The County will not ~irect the Escrow Holder to exercise any of the powers described ~n the preceding sentence in any manner which would cause any Bonds to be "arbitrage bonds" within the meaning of the Internal Revenue Code of 1986, as amended, and the Regulations thereunder. The trans- actions may be effected only if (i) an independent certified public accountant shall certify that the cash and principal amount of Federal Securities remaining on hand after the transactions are completed, together with the interest due thereon, will be not less than the Escrow Requirement, and (ii) the Escrow Holder shall receive an unqualified opinion from a nationally recognized bond counsel or tax counsel to the effect that such transactions will I '1 I I i i I i I I I I I i I I I I i not cause such Bonds to be "arbitrage bonds" within ~he meaning of the Internal Revenue Code of !986, as amended, and the regulations ~hereunder in effect on the date of the Eransactions and applicable to obligations issued on such date. Section 6. No Redemption or Acceleration of Maturity. Except as provided in the City Resolution, the City will not accelerate the maturity or due date of the Defeased Bonds. The Escrow Holder agrees to call Ehe Defeased Bonds for redemption in accordance with the provisions of the City Resolution and the resolutions authorizing their issuance, copies of which have been provided to the Escrow Holder. The Escrow Holder agrees to (a) select, by lot, the Defeased Bonds to be called for mandatory redemption in each of the years identified on Schedule A, (b) provide a copy of such notice to the Paying Agent for the Defeased Bonds, and (c) mail a notice of such redemption to all registered owners of obligations to be redeemed at their addresses as they appear on the registration books kept by the Paying Agent for the Defeased Bonds. Section 7. Resoon~.~bi!ities of Escrow Holder. The Escrow Holder and its respective successors, assigns, agents and servants shall not be held to any personal liability whatsoever, in tort, contract, or otherwise, in connection with the execution and' delivery of this Agreement, the establishment of the Escrow Account, the acceptance of the funds deposited therein, the purchase of the Federal Securities under the terms hereof, the retention of the Federal Securities or the proceeds thereof or any payment, transfer or other application of money or securities by the Escrow Holder in any non-negligent act, non-negligent omission or non-negligent error of the Escrow Holder made in good faith in the conduct of its duties. The Escrow Holder shall, however, be liable to the City for its negligent or willful acts, omissions or errors which violate or fail to comply with the terms of this Agreement. The duties and obligations of the Escrow Holder shall be determined by the express provisions of this Agreement. The Escrow Holder may consult with counsel, who may or may not be counsel to the City, and in reliance upon the opinion of such counsel shall have full and complete authorization and protection in respect of any action taken, suffered or omitted by it in good faith in accordance therewith. Whenever the Escrow Holder'~shall deem it necessary or desirable that a matter be proved or established prior to taking, suffering or omitting any action under this Agreement, such matter may be deemed to be conclusively established by a certificate signed by an authorized officer of the City. The Escrow Holder shall be under no duty to make any investigation or inquiry as to any statement contained or matters referred to in such certificate. may Section 8. Resi~qnation of ~scrow.... Holder. The Escrow Holder resign and thereby become discharged from the duties and obligations hereby created, by notice in writing given to the City and the CounTy and published once in a daily newspaper of general circulation or a financial journal published in the Borough of Manhattan, City and StaTe of New York, not less than sixty days before such resignation shall take effect. Such resignation shall take effect immediately upon the appointment of a new Escrow Holder hereunder, if such new Escrow Holder shall be appointed before the time limited by such notice and shall then accept the duties and obligations thereof. Section 9. Removal of E~..crow...Holder. (a) The Escrow Holder may be removed at any time by an instrument or concurrent instruments in writing, executed by the holders of not less than fifty-one per centum (51%) in aggregate principal amount of each issue of Defeased Bonds then outstanding, such instruments to be filed with the City and the County, and notice in writing given by such holders to the original purchaser or purchasers of the Defeased Bonds not less than sixty (60) days before such removal is to take effect as stated in such instrument or instruments. A photographic copy of any instrument filed with the City under the provisions of this paragraph shall be delivered by the City to the Escrow Holder and the County. (b) The Escrow Holder may also be removed at any time for any breach of trust or for acting or proceeding in violation of, or for failing to act or proceed in accordance with, any provisions of this Agreement with respect to the duties and obligations of the Escrow Holder, by the City, by the County or by the holders of not less than twenty-five per centttm (25%) in aggregate principal amount of the Defeased Bonds then outstanding. Section 10. Succ~..ssor Es~row H.Qlder. (a) Any corporation into which the Escrow Holder, or any successor to it 'in the trusts created by this Agreement, may be merged or converted or with which it or any successor to it may be consolidated, or any corporation resulting from any merger, conversion, consolidation or reorganization to which the Escrow Holder or any successor to it shall be a party shall, if satis- factory to the City and the County, be the successor Escrow Holder under this Agreement without the execution or filing of any',paper or any other act on the part of any of the parties hereto, anything herein to the contrary notwithstanding. '1 I i I I I I I i I I I I I (b) If at any time hereafter the Escrow Holder shall resign, i be removed, be dissolved or otherwise become incapable of acting, or shall be taken over by any gover~ental official, agency, department or board, the position of Escrow Holder shall thereupon become vacant. If the position of Escrow Holder shall become vacant for any of the foregoing reasons or for any other reason, the City, with the consent of the County, shall appoint an Escrow I I' I I I i I I I i I I I I I I I I i Holde-r ~'o 9ii! such vacancy within fifteen days of the occurrence cf such vacancy. The City shall publish notice of any such appointment at least once in a newspaper of general circulation published in the territorial limits of the City and in a daily newspaper of general circulation or a financial journal published in the Borough of Manhattan, City and State of New York, and, before the second publication of such notice shall mail a copy thereof %o the registered holders of the Defeased Bonds. (c) At any time within sixty (60) days after such vacancy shall have occurred, the holders of a majority in principal amoun~ of each issue of Defeased Bonds then outstanding, by an instrument or concurrent instruments in writing, executed by all such bondholders and filed with the governing body of the City, may appoint a successor Escrow Holder, which shall supersede any Escrow Holder theretofore appointed by the City. Photographic copies of each such instrument shall be delivered promptly by the City, to the predecessor Escrow Holder, to the Escrow Holder so appointed by the bondholders and to the County. (d) If no appointment of a successor Escrow.Holder shall be made pursuant to the foregoing provisions of this section, the County, the holder of any Defeased Bonds then outstanding, or any retiring Escrow Holder may apply to any court of competent. jurisdiction to appoint a successor Escrow Holder. Such court may thereupon., after such notice, if any, as such cour~ may deem proper and prescribe, appoint a successor Escrow Holder. SECTION ll. PavmeDt to EscrQF Holder. In consideration of the services rendered by the Escrow Holder under this Agreement, the City agrees to and shall pay to the Escrow Holder the fees as shown on the attached Schedule D and all expenses, charges, attorney fees and other disbursements incurred by it or its attorneys, agents, and employees in and about the performance of its powers and duties as Escrow Holder. The Escrow Holder shall have no lien whatsoever upon any of the Federal Securities or the cash in said Escrow Fund for the payment of such proper 'fees and expenses. The City further agrees to indemnify and save the Escrow Holder, its agents and employees harmless, to the extent allowed by law, against any liabilities, obligations, losses, damages, penalties, claims, actions, suits, costs, expenses and disbursements of whatever kind or nature, including, Without limitation, reasonable fees and costs, which it may incur in the exercise and performance of its powers and duties hereunder, and which are not due to its negligence or willful misconduct. Indemnification provided under this section shall survive the termination of this Agreement. The Escrow Holder shall not be liable for any loss resulting from any investment made pursuant to the terms and provisions of this Agreement. The Escrow Holder shall not be liable for the accuracy of the calculations as to the sufficiency of moneys and of the principal amount of the Federal Securities and the earnings ~hereon to pay the Defeased Bonds. So long as the Escrow Holder applies any moneys, the Federal Securities and securities purchased hereunder and the interest earnings therefrom to pay the Defeased Bonds as provided herein, and complies fully with the tel-ms of this Agreement, the Escrow Holder shall not be liable for any deficiencies .in the amounts necessary to pay the Defeased Bonds caused by such calculations. Section !2. Te~m. This Agreement shall commence upon its e×ecu~ion and delivery and shall terminate when the Defeased Bonds have been paid and discharged in accordance with the proceedings authorizing the Defeased Bonds, and all amounts held by the Escrow Holder hereunder have been applied in accordance herewith. Section !3. Severabilitv. If any one or more of the cove- nants or agreements provided in this Agreement on the part of the City or the Escrow Holder to be performed should be determined by a court of competent jurisdiction to be contrary to law, such covenant or agreements herein contained shall be null and void and shall be severed from the remaining covenants and agreements and shall in no way affect the validity of the remaining provisions of this Agreement. SECTION 14. Amendments to this A~rgeme~t. This Agreement is made for the benefit of the City, the County and the holders from time to time of the Defeased Bonds and it shall not be repealed, revoked, altered or amended in whole or in part without the written consent of all affected holders, the Escrow Holder, the County and the City; provided, however, that the City, the County and the Escrow Holder may, without the consent of, or notice to, such holders, enter into such agreements supplemental to this Agreement as shall not adversely affect the rights of such holders and as shall not be inconsistent with the terms and provisions of this Agreement, for any one or more of the following purposes: (a) to cure any ambiguity or formal defect or omission in this Agreement; (b) to grant to, or confer upon, the Escrow Holder, for the benefit of the holders of the Bonds and the Defeased Bonds any additional rights, remedies, powers or authority that may la~fully be granted to, or conferred upon, such holders or the Escrow Holder; and (c) to subject to t_his Agreement additional funds, securities or properties. The Escrow Holder shall, at its option, be entitled to rely exclusively upon an opinion of nationally recognized attorneys on the subject of municipal bonds acceptable to the City and the County with respect to compliance with this Section, including the I '1 I I I I I I I I I I i I i I I I I I i' i I i I I I I I I I I I i I I i I extent, if any, to which any change, modification, addition or elimination affects the rights of the holders of the Defeased Bonds or that any instrument executed hereunder complies with the conditions and provisions of this Section. Prior written notice of such amendments, together with proposed copies of such amendments shall be provided to Moody's Investors Service, inc., Public Finance Rating Desk/Refunded Bonds, 99 Church Street, New York, New York 10007. SECTION !5. Notices. Any notice, authorization, request or demand required or pe!~i%ted to be given in accordance with the terms of ~his Agreement shall be in writing and sent by registered or certified mail addressed to: [ESCROW HOLDER] City of Sebastian, Florida 1225 Main Street Sebastian, Florida 32958 Attention: Indian River County, Florida 1840 25th Street Veto Beach, Florida 32960 Attention: Section 16. ~oun~.ermar~a.s. This Agreement may be executed in several counterparts, all or any of which shall be regarded for all purposes as duplicate originals and shall constitute and be but one and the same inst.-~ment. Section 17. Governinq Law. This Agreement shall be construed under the laws of. the State of Florida. Section 18. Secu~it~ for .Accounts and Funds. Ail accounts and funds maintained or held pursuant to this Agreement shall be continuously secured in the same manner as other deposits of municipal funds are required to be secured by the laws of Florida. Section !9 Notice qf Defeasance. The Escrow Holder ~ ' . agrees to provide a copy of the notice of defeasance, in substantially the form attached to the Redemption Resolution as Exhibit A, to Depository Trust Company of New York, New York, ~and to one or more national information services that disseminate notices of defeasance of obligations such as the Defeased Bonds. 9 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized officers and their official seals to be hereunto affixed and attested as of the date first above written. CITY OF SEBASTIAN, FLORIDA (SEAL) By: Mayor ATTEST: City Clerk INDIAN RIVER COUNTY, FLORIDA (SEAL) By: ATTEST: Chairman Clerk [ESCROW HOLDER], as Escrow Holder ATTEST: By: '. Title: Title: 10 i '1 I i I I I I I I I I I I I I I I I I I' i I I I I I I I I I I I I I I I I SCHEDULE C FEDEPiL SECURITIES FOR INVESTMENT (Schedules Attached) ORDINi~NCE NO. ~$- AN ORDIL~%NCE OF THE CITY OF SEBASTIAN, FLORIDA, CONSENTING TO THE IMPOSITION OF SPECIAL ASSESSMENTS AND OR THE INCLUSION OF ALL OF ITS INCORPORATED AREAS WITHIN ONE OR MORE MUNICIPAL SERVICE BENEFIT UNITS CREATED BY INDIAN RIVER COUNTY TO PROVIDE WATER OR WASTEWATER FACILITIES, SERVICES OR PROGRAMS; PROVIDING FOR SEVERABILITY; AND PROVIDING AN EFFECTIVE DATE. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF SEBASTIAN, FLORIDA: SECTION 1.01. FINDINGS. It is hereby ascertained, determined, and declared that: (A) Section !25.01(1)(q), Florida Statutes, provides legislative authorization for the governing body of a county to establish a municipal service benefit unit for all or any part of the unincorporated area within its boundaries, or within the municipal boundaries of an incorporated area upon consent of the governing body of the affected municipality, within which may be provided water or wastewater facilities, services or programs, and other related essential facilities and municipal services. (B) The Board of County Commissioners of Indian River County, Florida (the "County") and the city Council of the City of Sebastian (the "City") have entered into an interlocal agreement providing for the transfer of the City's water and wastewater utility system to the County which authorizes the County to provide such services within the incorporated areas of the City. This ordinance shall be construed as authorizing the County to establish a municipal service benefit unit and or to impose and collect water C~i and wastewater assessments within the incorporated area of the City. (C) The City Council of the City of Sebastian has determined that the creation of a municipal service benefit unit and or the imposition of special assessments for the purpose of providing water and wastewater services, facilities and programs is in the best interests of the owners of property within the corporate limits of the City. SECTION 1.02. CONSENT OF THE CITY OF SEBASTIAN. The City Council of the City of Sebastian hereby consents to the inclusion of all of the incorporated area of the City within one or more municipal service benefit units created by the County to provide water and wastewater services, facilities, and programs and or to the imposition of a special assessment for such purposes. Such consent shall become effective upon adoption of this Ordinance and transfer of the City's water and wastewater utility system to the County pursuant to interlocal agreement. The city Council finds that such provision of water and wastewater services, facilities and programs is an essential municipal purpose. SECTION 1.03. SEVEP~BiLITY. The provisions of this Ordinance are severable; and if any section, subsection, sentence, clause or provision is held invalid by any court of competent jurisdiction, the remaining provisions of this Ordinance shall not be affected thereby. SECTION 1.04. EFFECTIVE DATE. This Ordinance shall take effect as provided by law. C-2 DULY ENACTED this day of __, 1995. (SEAL) CITY COUNCIL OF THE CITY OF SEBASTIAN, FLORID~ ATTEST: By: Mayor Clerk C~3 CERTIFICATE REAFFIRMING REPRESENTATIONS WHEREAS, Indian River County, Florida, a political subdivision of the State of Florida (the "County"), and the city of Sebastian, a municipal corporation and body politic existing under the laws of the State of Florida, (the "City") , entered into that certain Interlocal Agreement Providing for the Transfer and Assumption of the City of Sebastian Water and Wastewater System on the day of , 1995 (the "interlocal Agreement"); and W~EREAS, Section 5.02 of the Interlocal Agreement provides that each party deliver a certificate to the other reaffirming the representations and warranties therein. NOW, THEREFORE, to comply with Section 5.02 of the interlocal Agreement, the City does hereby certify to the County the following: That the representations and warranties of the City in the Interlocal Agreement are true and correct in all material respects as of the date hereof with the same effect as if such representations and warranties were made or given on the date hereof; and That the City has performed in all material respects all of its obligations and has complied with all of the covenants and agreements required by the Interlocal Agreement to be performed or complied with by the City prior to or on the date hereof, unless waived in writing by the County. IN WITNESS WHEREOF, the City has executed this certificate as. of this day of .., 1995. THE CITY OF SEBASTIAN, FLORIDA (SEAL) ATTEST: KATHRYN M. O'HALLORAN, City Clerk By: Mayor By: Deputy Clerk D-1 CERTIFICATE REAFFIP~ING REPRESENTATIONS WHEREAS, Indian River County, Florida, a political subdivision of the State of Florida (the "County"), and the City of Sebastian, a municipal corporation and body politic existing under the laws of the State of Florida, (the "City"), entered into that certain !nterlocal Agreement Providing for the Transfer and Assumption of the city of Sebastian Water and Wastewater System on the day of , 1995 (the "Interlocal Agreement"); and WHEREAS, Section 5.02 of the Interlocal Agreement provides that each party deliver a certificate to the other reaffirming the representations and warranties therein. NOW, TKEREFORE, to comply with Section 5.02 of the Interlocal Agreement, the County does hereby certify to the city the following: 1. That the representations and warranties of the County in the Interlocal Agreement are true and correct in all material respects as of the date hereof with the same effect as if such representations and warranties were made or given on the date hereof; and 2. That the County has performed in all material respects all of its obligations and has complied with all of the covenants and agreements required by the Interlocal Agreement to be performed or complied with by the County prior to or on the date hereof, unless waived in writing by the city. IN WITNESS WHEREOF, the County has executed this certificate as of this day of , 1995. BOARD OF COUNTY COMHISSIONERS OF INDIAN RIVER COUNTY, FLORIDA (SEAL) By: .. Chairman ATTEST: JEFFREY K. BARTON, clerk of the Circuit Court and Ex-Officio Clerk of the Board of County Commissioners of Indian River County, Florida By: Deputy Clerk D-2 This ins~r~en~ prepored i~y or under ~he supervision of: Name; CLifton k. McCLeLtanci, Jr., Potter, McCLeLLar~J, Marks & HeaLy, P.A, Address: 700 S. Ba~ock S~ee~, Suite ~et~rne, FL DEED THIS DEED, made this day of , 1995, by the CITY OF SEBASTIAN, FLORIDA, party of the first part, and INDIAN RIVER COUNTY, FLORIDA, party of the second part, WITNESSETH that the said party of the first part, for and in consideration of the sum of Ten Dollars ($10.00) to it in hand paid by the party of the second part, receipt whereof is hereby acknowledged, has granted, bargained and sold to the party of the second part, the following described land lying and being in Indian River County, Florida: See Exhibit "~" attached hereto and by this reference made a part hereof. SUBJECT TO: Taxes and assessments for the year 199__ and subsequent years. Ail laws, ordinances and governmental regulations, including, but not limited to, all applicable building, zoning, land use and environmental ordinances, regulations, restrictions, prohibitions and other requirements, none of which will prevent or hinder the present use of the Property. Restrictions and easements for utilities and drainage set out in recorded plats of subdivisions. 4. Restrictions of record. Ail matters which would be disclosed by an accurate survey of the Property. IN WITNESS WHEREOF the said party of the first part has caused these presents to be executed in its name by its city Council D-3 acting by the Chairman or Vice Chairman of said Council, the day and year aforesaid. (OFFICIAL SEAL) ATTEST: Kathryn M. O'Halloran, CMC/AAE CiTY OF SEBASTIAN, FLORIDA, a municipal corporation, by its City Council STATE OF § § COUNTY OF § By: Chairman (or Vice Chairman) The foregoing Deed was sworn to and subscribed before me this day of , 1995 by , Mayor of the City of Sebastian, on behalf of the City. He is personally known to me or has produced as identification and did take an oath. Printed Name: Notary Public, State of Florida At Large My Commission Expires: Commission No.: D-4 '~ p~rti~u!~r!~, described as follows: feet, %hrou~h a - t_ ~ - , _ Southeast :/4 ~f the ~rtheas~ i/4, a distznpe :f ~7.~ feet, ~f %he ~cr~heast i/4; ~amce ~cr~h D0~!'2~'' ~e~t, ~!c~g the West li~e cf aforesaid North line of the ~ortheast 1/4; The East accordImc ~o ~e p_a. .be.e~., '- ;'~ ~ ~-' ~ v-~zn River C~u~':, Y!cri~=. D-5 BILL OF SALE THIS BILL OF SALE evidencing the sale and conveyance of the Sebastian Utility System, as described in that certain Interlocal Agreement dated [date] is made and executed this day of , 1995 by City of Sebastian, a municipal corporation and body politic existing under the laws of the State of Florida, (the "City"), whose address is 1225 Main Street, Sebastian, Florida 32958, hereinafter called the seller, to Indian River County, Florida, a political subdivision of the State of Florida, whose address is 1840 25th Street, Veto Beach, Florida 32960, hereinafter called the buyer; WITNESSETH: That the seller, for and in consideration of the sum of $10.00 and other valuable considerations, receipt whereof is hereby acknowledged, by these presents does grant, bargain, sell, alien, remise, release, convey and confirm unto the buyer, all that certain personal property which is a part of the Sebastian Utility System situate in Indian River County, Florida, as more particularly described on Exhibit A attached hereto and incorporated herein. SAID Sebastian Utility System also includes all the tenements, hereditaments and appurtenances thereto belonging or in anywise appertaining, including but not limited to, all water and wastewater facilities of every kind and nature lying within public rights-of-way and all appurtenant easement rights for the operation, installation and maintenance of said facilities. SUBJECT TO the Interlocal Agreement Providing for the Transfer and Assumption of the City of Sebastian Water and Wastewater System dated , 1995 between the buyer and seller and · the obligations, duties and liabilities assumed by the buyer thereunder. TO H~VE AND TO HOLD, the same in fee simple forever. IN WITNESS WHEREOF the seller has caused these presents to be executed in its name, and its corporate seal to be hereunto affixed, by its proper officers thereunto duly authorized, the day and year first above written. THE CITY OF SEBASTIAN, FLORIDA (SEAL) By: Mayor D-6 ATTEST: KATHRYN M. O'HALLORAN, City Clerk By: Deputy Clerk STATE OF § § COUNTY OF § The foregoing Bill of Sale was sworn to and subscribed before me this day of ~ , 1995 by , Mayor of the City of Sebastian, on behalf of the City. He is personally known to me or has produced as identification and did take an oath. Printed Name: Notary Public, State of Florida At Large My Commission Expires: Commission No.: This Instrument prepared by: [Name and address of preparer] D-7 EXHIBIT A TO BILL OF S~LE FROM CITY OF SEBASTIAN, FLORIDA TO iNDIA~ RIVER COUNTY, FLORIDA Ail of the cit~ of Sebastian's water production, treatment plants, storage treatment, transmission, distribution, pumping and other water facilities, including without limitation, water wells and fire h~drants, and all wastewater treatment plant, wastewater collection, transmission, pumping and disposal facilities of every kind and description whatsoever, including, without limitation, all trade fixtures, leasehold improvements, lift stations, pumps, generators, controls, collection and transmission pipes or facilities, valves, meters, service connections, and all other water and wastewater service con~ections, and all other water and wastewater physical facilities, together with all machinery, and equipment used in the course of the da~-to-da~ operations of the cit~ of sebastian Water and Sewer S~stem. APPENDI~ E Future Zncorporate~ Area Service objectives SERVI CE AGREEMENTS The County specifically agrees to be bound by and substitute for the City for any obligation which the City has arising from the following: (1) Agreement between Indian River County and Nelson Hyatt dated July 11, 1989, as amended. (2) Interlocal Agreement between Indian River County and the City of Sebastian Re: Sebastian Lakes Service Area Agreement dated December 29, 1994, and the Water and Wastewater Service and Contribution Agreement dated February 9, 1994; provided the City shall have the responsibility for paying the $80,327.36 credit to the County set out in Section 4 of said Agreement toward future water connections to the County System if such connections are in fact made, provided the February 9, 1994 Agreement constitutes a valid, existing agreement which imposes liability on the City for such credit on the date of the closing of the sale of the City of Sebastian Water and Wastewater System to the County. (3) Any obligations for impact fees which have been paid and the service agreements listed on H-2. (4) Utility Agreement dated March 4, 1993 between citrus Utilities, Inc. and General Development Utilities, Inc. The County will not indemnify and the City will hold the County harmless from any and all liability arising out of the case styled Cit~n~.~. Utilities~ Inc. v. General Development Utilities. Inc. and ~it¥ of Sebastian; Case Number 94-0202-CA-03 filed in the circuit Court of Indian River County, Florida. A~REEMENT WITH A~REEMENT DATE Andell, Inc. B.W. Simpkins Trust & F.A. Sheriff Trust Church of God, Inc. Donald E. y yPinder Scotad, Inc. Scotad, Inc. Trinity Lutheran Church Roy Wissel d/b/a Wissel Construction School District of Indian River County Reflections on the River, Inc. Calvary Baptist Church Muller Enterprises, Inc. Sebastian Lakes Association Clare Sommers & Roberta Jones Jean M. Burdsall Indian River School Board Edward V. Hulse First Baptist Church Mission James M. McClain Sebastian Plumbing General Development Corp. City of Sebastian Arnold's Air Conditioning, Inc. M.G.B. Homes, Inc. Fellsmere Properties, Inc. Sebastian Vol. Fire Dept. & Rescue, Inc. James R. Havens Lonnie R. & Mary B. Powell Cumberland Farms, Inc. Drs. Peter & Katherine Gutierrez Sebastian General Partneship B.F.T. Barnett Bank of Treasure Coast September 9, 1992 June 26, 1989 September 2, 1988 March 28, 1990 August 24, 1989 June 28, 1989 April 25, 1993 February 14, 1989 November 24, 1980 December 10, 1982 June 16, 1983 December 5, 1983 November 14, 1984 September 14, 1984 August 27, 1984 November 13, 1984 October 15, 1984 June 27, 1985 July 12, 1985 December 9, 1985 December 26, 1985 December 18, 1985 January 10, 1986 February 6, 1986 February 12, 1985 August 10, 1986 January 22, 1987 April 14, 1987 May 1, 1987 April 5, 1988 December 17, 1991 November 16, 1992 Th~$ instrunent prepared by or under the supervision of: Name: CLifton A. HcCLe[tand, Jr., Esq. Potter, HcCLeLLar~J, Harks & Hca[y, P.A. Aclciress: 700 $. Babcock Street, Suite 400 MeLbourne, FL 32~01 PARCEL I.D. NO. TAXPAYER I . D. NO. GRANT OF EASEHENT KNOW ALL MEN BY THESE PRESENTS that THE CITY OF SEBASTIAN, FLORIDA, having its principal place of business at 1225 Main Street, Sebastian, Florida 32958 (the "Grantor"), in consideration of the su~ of TEN DOLLARS ($10.00) and other valuable considerations, receipt of which are hereby acknowledged, does hereby grant to INDIAN RIVER COUNTY, FLORIDA, having its principal place of business at 1840 25th Street, Veto Beach, Florida 32960 (the "Grantee"), and to its successors and assigns, a non-exclusive perpetual easement ("Easement") for the construction, maintenance and repair of utility facilities over, upon, under, across and through the described lands of the Grantor, situated in the County of Indian River and State of Florida, as more particularly described in Exhibit "A" attached hereto and by this reference made a part hereof (the "Easement Parcel"). The Grantor, however, reserves the right and privilege to use the Easement in common with Grantee for all purposes except as herein granted or as might interfere with Grantee's use, occupation or enjoyment thereof, or as might cause a hazardous condition. In the event that Grantee, its employees, agents or contractors cause damage to the Easement Parcel in the exercise of the privilege granted in this Easement, Grantee agrees to restore the Easement Parcel so damages to its original condition and grade. IN WITNESS WHEREOF, the Grantor has executed this Grant of Easement this day of , 1995. GRANTOR: CITY OF SEBASTIAN, FLORIDA By: Witness Name: Pr~nt~ Witness Pr~nt~ Na~: (OFFICIAL SEAL) ATTEST: Kathryn M. O'Halloran, CMC/AAE STATE OF FLORIDA § COUNTY OF INDIAN RIVER § The foregoing Grant of Easement was sworn to and subscribed before me this day of , 1995 by , Mayor of the City of Sebastian, on behalf of the City. He is personally known to me or has produced as identification and did take an oath. Printed Name: Notary Public, State of Florida At Large My Commission Expires: Commission No.: City of Sebastian 1225 MAIN STREET U SEBASTIAN, FLORIDA 32958 TELEPHONE (407) 589-5330 [] FAX (407) 589-5570 CITY COUNCIL AGENDA TRANSMITTAL SUBJECT: Ordinance No. O-95-25 Consenting to Imposition of Special Assessments by IRC AGENDA NO: DEPT. ORIGIN: City_ Manager DATE SUBMITTED: 9/15/95 APPROVED FOR SUBMITTAL: City Manager · '~ MEETING DATE: 9/20/95 E~ITS: 0-95-25 Expenditure Required: Amount Budgeted: Appropriation Required: SUMMARY STATEMENT Under the provisions of the "agreement" with Indian River County for the sale and transfer of the utility system, we agreed to enact the appropriate legislation in the form of an ordinance that provides for the assessment system within the City. The attached proposed Ordinance No. 0-95-25 completes this requirement. RECOMMENDED ACTION Approve on first reading and designate the public hearing for September 27, 1995. O IN CE No. 9s- ZE AN ORDINANCE OF THE CITY OF SEBASTIAN, FLORIDA, CONSENTING TO THE IMPOSITION OF SPECIAL ASSESSMENTS AND OR THE INCLUSION OF ALL OF ITS INCORPORATED AREAS WITHIN ONE OR MORE MUNICIPAL SERVICE BENEFIT UNITS CREATED BY INDIAN RIVER COUNTY TO PROVIDE WATER OR WASTEWATER FACILITIES, SERVICES OR PROGRAMS; PROVIDING FOR SEVERABILITY; AND PROVIDING AN EFFECTiVE DATE. NOW, THEREFORE, BE IT ORDAINED BY THECITY COUNCIL OF THE CITY OF SEBASTIitN, FLORIDA: SECTION 1.01. FINDINGS. It is hereby ascertained, determined, and declared that: (A) Section 125.01(1) (q), Florida Statutes, provides legislative authorization for the governing body of a county to establish a municipal service benefit unit for all or any part of the unincorporated area within its boundaries, or within the municipal boundaries of an incorporated area upon consent of the governing body of the affected municipality, within which may be provided water or wastewater facilities, services or programs, and other related essential facilities and municipal services. (B) The Board of County Commissioners of Indian River County, Florida (the "County") and the City Council of the City of Sebastian (the "City") have entered into an interlocal agreement providing for the transfer of the City's water and wastewater utility system to the County which authorizes the County to provide such services within the incorporated areas of the City. This ordinance shall be construed as authorizing the County to establish a municipal service benefit unit and or to impose and collect water C-1 and wastewater assessments within the incorporated area of the City. (c) The City Council of the City of Sebastian has determined that the creation of a municipal service benefit unit and or the imposition of special assessments for the purpose of providing water and wastewater services, best interests of the owners limits of the City. SECTION 1.02. CONSENT OF THE CITY OF SEBASTIAN. facilities and programs is in the of property within the corporate The City Council of the City of Sebastian hereby consents to the inclusion of all of the incorporated area of the City within one or more municipal service benefit units created by the County to provide water and wastewater services, facilities, and programs and or to the imposition of a special assessment for such purposes. Such consent shall become effective upon adoption of this Ordinance and transfer of the city's water and wastewater utility system to the County pursuant to interlocal agreement. The City Council finds that such provision of water and wastewater services, facilities and programs is an essential municipal purpose. SECTION 1.03. SEFERABILITY. The provisions of this Ordinance are severable; and if any section, subsection, sentence, clause or provision is held invalid by any court of competent jurisdiction, the remaining provisions of this Ordinance shall not be affected thereby. SECTION 1.04. EFFECTIVE DATE. This Ordinance shall take effect as provided by law. C-2 DULY ENACTED this __ day of , 1995. (SEAL) ATTEST: Clerk CITY COUNCIL OF THE CiTY OF SEBASTIAN, FLORIDA By: Mayor C-3 City of Sebastian 1225 MAIN STREET [] SEBASTIAN, FLORIDA 32958 TELEPHONE (407) 589-5330 [] FAX (407) 589-5570 AGENDA TRANSMITTAL SUBJECT: Resolution R- 95 - 50 Agenda NO. Dept. Origin: Finance Finance Director Approved For Submittal By: City Manager Date Submitted: 09/15/95 For Agenda of: 09/20/95 Exhibits: Resolution R-95-50 EXPENDITURE AMOUNT APPROPRIATION REQUIRED: $0 BUDGETED: $0 REQUIRED: $0 SUMMARY STATEMENT In accordance with Chapter 200, Florida Statutes, the City Council is holding this public hearing on the proposed millage rate. The City Council may amend the tentative budget and reduce (but not increase) the proposed millage rate. The public shall be allowed to speak and to ask questions prior to adoption of the proposed millage rate. The City Council shall adopt its millage rate prior to adopting its budget by separate motions. RECOMMENDED ACTION Move to adopt the proposed millage rate of 6.900 mills which is twenty two one hundredths percent (.22%) less than the rolled back rate of 6.915 mills. .RESOLUTION NO. R-95-50 A RESOLUTION OF THE CITY COUNCIL OF THE CiTY OF SEBASTIAN, INDIAN RI37ER COUNTY, FLORIDA ADOPTING A PROPOSED MILLAGE RATE OF 6.900 FOR TIlE CITY'S GENERAL OPERATING FUND FOR THE FISCAL YEAR BEGINNING OCTOBER 1, 1995 AND ENDING SEPTEMBER 30, 1996; PROVIDING FOR SEVERABILITY; PROVIDING FOR CONFLICTS; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, a budget has been prepared estimating expenses and revenues of the City o£ Sebastian, Indian River County, Florida, for the ensuing year, with detailed information, including revenues to be derived from sources other than ad valorem levy, and the administrative staff of the City has made recommendations as to the amount necessary to be appropriated for the ensuing year; and WHEREAS, the City Council has met and considered the recommendations, the suggested budget, and the proposed millage necessary to be levied to carry on the government o£ the City for the ensuing year; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEBASTIAN, INDIAN KIVER COUNTY, FLORIDA, THAT: Section 1. The proposed millage rate necessary to be levied against ad valorem valuation of property subject to taxation in the City o£ Sebastian, Indian River County, Florida, to produce a sufficient sum which together with departmental and other revenues will be sufficient to pa5' for appropriations made in the budget for the fiscal year is hereby set at 6.900 mills. Section 2. A cop), of the budget shall be published in one issue of a newspaper published in Indian River Count>,, Florida, at the same time the public will be notified of a public hearing to be held on the 20th day of September, 1995 at 7:30 P.M. for the purpose of setting a final tax lexg, and final budget. Section 3. The proposed millage rate is .22 percent below the computed rolled back rate. Section 4. If any clause, section, or other part of this Resolution shall be held by any Court of competent jurisdiction to be unconstitutional or invalid, such unconstitutional or invalid part shall be considered as eliminated and shall in no way affect the validity of the other provisions of this Resolution. Section 5. All Resolutions or paris of Resolutions in conflict herewith are hereby repealed to the extent of such conflict. Section 6. This Resolution shall become effective upon its passage and adoption. The foregoing Resolution was moved for adoption by Councilmember The motion was seconded by Councilmember put to a vote, the vote was as follows: Mayor Arthur Fir[ion Vice Mayor Carolyn Corum Councilmember Nonna Damp Councilmember Louise Carrwright Councilmember Ray Halloran and, upon being The Mayor thereupon declared this Resolution duly passed and adopted this ,199 da5, of ATTEST: Kathryn M. 0'I-talloran, CMC/AAE City Clerk Approved as to Form and Content: Clifton A. McClelland, City Attorney CITY OF SEBASTIAN, FLORIDA By: Arthur L. Firtion, Mayor City of Sebastian 1225 MAIN STREET [] SEBASTIAN, FLORIDA 32958 TELEPHONE (407) 589-5330 [] FAX (407) 589-5570 AGENDA TRANSMITTAL SUBJECT: Resolution R- 95 - 51 Agenda No. Dept. Origin: Finance Finance Director ~ Approved For Submittal By: City Manager Date Submitted: 09/15/95 For Agenda of: 09/20/95 Rx/%ibits: Resolution R-95-51 AMOUNT APPROPRIATION REQUIRED: $0 BUDGETED: $0 REQUIRED: $0 SUMMARY STATEMENT In accordance with Chapter 200, Florida Statutes, the City Council is holding this public hearing on the proposed budget. The budget amounts are: General Fund Golf Course Fund Airport Fund Cemetery Trust Fund Total $7,245,270 1,378,330 509,530 139,58Q RECOMMENDED ACTION Move to adopt budget Resolution No. R~95-51. RESOLUTION NO. R-95-51 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEBASTIAN, INDIAN RIVER COUNTY, FLORIDA ADOPTING A BUDGET FOR TIlE FISCAL YEAR BEGINNING OCTOBER 1, 1995 AND ENDING SEPTEMBER 30, 1996; DETERMINING AND FIXING THE AMOUNTS NECESSARY TO CARRY ON THE GOVERNMENT FOR THE ENSUING YEAR; DETERMINING THE AMOUNT OF APPLICABLE FUNDS ON HAND; ESTIMATING RECEIPTS FOR THE GENERAL FUND, EXHIBIT "A"; GOLF COURSE FUND, EXHIBIT "B"; AIRPORT FUND, EXHIBIT "C"; CEMETERY TRUST FUND, EXHIBIT "D"; PROVIDING FOR SEVERABILITY; PROVIDING FOR CONFLICTS; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, a budget has been prepared estimating expenses and revenues of the City of Sebastian, Indian River County, Florida, for the ensuing year, with detailed information, including revenues to be derived from sources other than ad valorem levy, and the administrative staff of the City has made recommendations as to the amount necessary to be appropriated for the ensuing year; and WHEREAS, the City Council has met and considered the recommendations, the suggested budget, and the proposed millage necessary to be levied to carry on the government of the City for the ensuing year; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEBASTIAN, INDIAN RIVER COUNTY, FLORIDA, THAT: Section t. The budget of the City of Sebastian, Indian River County, Florida, for the Fiscal Year beginning October 1, 1995 and ending September 30, 1996, a copy of which is attached hereto and more particularly identified as Exhibit "A", "B", "C" and "D", are hereby adopted and the appropriations set out therein are hereby made to maintain and carry on the government of the City of Sebastian, indian River County, Florida. Section 2. All delinquent taxes collected during the ensuing fiscal year as proceeds from levies of operation millages of prior years are hereby specifically appropriated for the use of the General Fund. Section 3. All monies appropriated for Capital projects during the preceding fiscal years and final payment has not been made are specifically re-appropriated for each project as work-in-progress. Section 4. If any clause, section, or other part of this Resolution shall be held by any Court of competent jurisdiction to be unconstitutional or invalid, such unconstitutional or invalid part shall be considered as eliminated and shall in no way affect the validity of the other provisions of this Resolution. Section 5. All Resolutions or parts of Resolutions in conflict herewith are hereby repealed to the extent of such conflict. Section 6. This Resolution shall become effective upon its passage and adoption. The foregoing Resolution was moved for adoption by Councilmember The motion was seconded by Councilmember and, upon being put to a vote, the vote was as follows: Mayor Arthur Firtion Vice Mayor Carolyn Corum Councilmember Norma Damp Councilmember Louise Cartwright Councilmember Ray Halloran 2 The Mayor thereupon declared this Resolution duly passed and adopted this ,199~. __ day of CITY OF SEBASTIAN, FLORIDA ATTEST: By: Arthur L. Firtion, Mayor Kathryn M. O'Halloran, CMC/AAE City Clerk Approved as to Form and Content: Clifton A. McClelland, City Attorney CITY OF SEBASTIAN GENERAL FUND SUMMARY REVENUE Taxes Licenses i Permits Inmrgovemmental Charges for Service Fines & Forfeits Miscellaneous Transfers In Prior Year Balance TOTAL REVENUE EXPENDITURE City Council City Manager City Clerk Finance Legal Police Human Resources Community Development Emergency Management DPW/Engineering & Admin. DPW/Roads and Drainage DPW/Building Maintenance DPW/Central Garage DPW/Parks & Recreation DPW/Cemetery Non-Departmental TOTAL EXPENDITURE EXHIBIT "A" PROPOSED FY 95 - 96 $4,379,700 321,000 871,400 13,700 6O,00O 174,900 4,000 1,420,57..Q. $16,840 199,490 223,745 314,350 105,000 1,693,360 88 175 442.055 1.850 292.480 865 790 129 650 152 690 211 145 84,690 2,423.960 REVENUE Charges for Service Interest Loan from General Fund EXPENDITURE Personal Services Operating Expenses Depreciation Capital Outlay Debt Service CITY OF SEBASTIAN GOLF COURSE FUND TOTAL REVENUE TOTAL EXPENDITURE EXHIBIT "B" PROPOSED FY 95 - 96 $1,283,330 20,0OO .... 75,000 $1.378_330 $166,315 724,685 180,000 100,500 206.830 REVENUE Intergovernmental Charges for Service Interest Prior Year Balance EXPENDITURE Operating Expenses Capital Outlay Reserve CITY OF SEBASTIAN' AIRPORT FUND TOTAL REVENUE TOTAL EXPENDITURE EXHIBIT "C" PROPOSED FY 95 - 96 $ 343,000 72,800 11,400 82,330 $ 16,950 468,000 24 580 $ 509.530 REVENUE Charges for Service Interest Prior Year Balance EXPENDITURE Operating Expenses Capital Outlay Transfer Out Reserve CITY OF SEBASTIAN' CEMETERY TRUST FUND TOTAL REVENUE TOTAL EXPENDITURE EXHIBIT "D" PROPOSED FY 95 - 96 $ 18,850 4,000 1!6,730 $ 139,580 $ 2,000 51,000 4,000 ..8.2,580 $ ... 139.580 I City of Sebastian 1225 MAIN STREET t-, SEBASTIAN, FLORIDA 32958 TELEPHONE (407) 589-5330 [] FAX (407) 589-5570 AGENDA TRANSMITTAL SUBJECT: Golf Course Fees Approval For Submittal By: Cit3' Manager ) ) ) ) ) ) ) ) ) ) ) AGENDA NO. Dept. Origin: City Manager Date Submitted:08/25/95 For Agenda Of: 09/20/95 Exhibits: -Resolution R-95-49 EXPENDITURE REQUIRED: N/A AMOUNT BUDGETED: N/A APPROPRIATION REQUIRED: N/A SUMMARY The proposed changes for golf course fees do not change the existing membership rates. proposed changes for member and non-member daily rates are as follows: Member Daily Rate Change (Season) a. No changes for rates. b. Changes in Conditions only. Member Daily Rate Changes (Off Season) a. To ride 18 holes a scale of $6.00 -$10.00. The Non-Member Rate Changes (Season) a. No change for rates. b. Changes in Conditions only. Non-Member Rate Changes (Off Season) a. No change except for Jr. golf green fee of $1.00 b. Eliminate Jr. golf registration fee of $10.00 c. No charge for league play. d. Range ball - increase $.50 for small bucket. RECOMMENDATION Recommend approval of Resolution R-95-49 - effective date of October 1, 1995. RESOLUTION NO. R-95-,19 A RESOLUTION OF TIlE CIT2f OF SEBASTIAN, INDIAN RIVER COUNq~~, FLORIDA, PERTAINING TO GREENS FEES AND GOLF CART FEES AT THE MLrNICIPAL GOLF COURSE; PROMULGATING A NEW ScI:rEDULE OF GREENS FEES AND GOLF CART FEES; PROMULGATING A NEW SCI:IEDULE OF ANNUAL MEMBERSHIP FEES; AUTHORIZING TIlE GOLF COURSE MANAGER TO MAIG~ ADJUSTMENTS TO THE HOURS ANi) CONDmONS UNDER CERTAIN CIRCUMSTANCES; AUTHO~G TH2E GOLF COURSE MANAGER TO ADJUST TI~ SUMMER FEE SCHEDULE WlTE]N TIlE SPECIAL RANGE FOR MAllK~TING PURPOSES; AUTHORIZING TIlE GOLF COURSE MANAGER TO ADJUST THE RATION OF TEE-TiMES RESERVATION BETWEEN MEMBERS AND NON-MEMBERS; PROVIDING FOR REPEAL OF RESOLUTIONS OR PARTS OF RESOLUTIONS IN CONFLICT HEREWITH; PROVIDING FOR A SEVERABILITY CLAUSE; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, Section 7%33 of the Code of Ordinances of the City of Sebastian provides that modifications of golf course rates shall be established by resolution of the City Council following one public hearing; and WHEREAS, the costs of maintaining the Sebastian Municipal Golf Course and its premises have increased since the adoption of Resolution No. R-94-46. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF TI-IE CITY OF SEBASTIAN, INDIAN RIVER COUNTY, FLORIDA, as follows: SECTION 1. ANNUAL MEMBERSHIP RATES. Commencing October 1, 1995, the annual membership fees for the Sebastian Municipal Golf Course shall be as follows: Family Single 95/96 ANNUAL MEMBERSHIP FEES Sebastian Resident Membership Fee $ 850.00 $ 600.00 Non-Resident Membership Fee Family $1,050.00 Single $ 800.00 Family membership means a married couple residing together and all dependents hying at home under the age of twenty-one (21) years. Proof of residency is required to obtain Sebastian Resident rates. All new memberships are subject to a two hundred ($200.00) dollar initiation fee. (This is a one time non-refundable fee.) Bag Storage (Single Per Bag) $ 40.00 (Double Per Bag) $ 80.00 Foot Locker $ 15.00 All of the above are subject to a 7% sales tax. on or before October 1, 1995. Renewal of an existing membership is due 2 SECTION 2. MEMBER DAILY RATES. Member rates, including greens fees and golf cart fees, for the Sebastian Mtmicipal Golf Course are hereby established as follows: Ride 18 Holes Ride 9 Holes Walk 18 Holes Walk 9 Holes Ride 18 Holes Ride 9 Holes Walk MEMBER DAILY RATES SEASON NOVEMBER 15, 1995 to APRIL 15, 1996 $13.00 - $15.00 $ 8.00-$ 9.00 $ 9.00 $ 5.00 Conditions All Day - Everyday After 1:30 p.m. When Tee is Open After 12:00 All Days After 1:30 p.m. When Tee is Open OFF SEASON APRIL 16:..1.996 to NOVEMBER 14~ 1996 6.00 - $10.00 4.0O - $ 6.00 No Charge Conditions All Day - Everyday All Day - Everyday All Day - Weekdays After 1:00 p.m. Weekends & Holidays 3 SECTION 3. NON-M~MBER DAILY RATES. Non-member rates, including greens fees and golf cart fees, for the Sebastian Municipal Golf Course are hereby established as follows: Ride 18 Holes Ride 9 Holes Walk 18 Holes Walk 9 Holes Ride 18 Holes Ride 18 Holes Ride 9 Holes Ride 9 Holes NON-MEMBER DAILY RATES SEASON NOVEMBER15, 1995 to APRIL 15. 1996 Ranee $23.00 - $30.00 $14.00 - $17.00 $20.00 - $25.00 $16.00 - $20.00 Conditions All Day - Everyday After 1:30 p.m. When Tee is Open After 12:00 Ail Days After 1:30 p.m. When Tee is Open Resident Card, $2.00 - $5.00 Discount Does Not Apply On Any Specials OFF SEASON APRIL 16, 1996 to NOVEMBER. 14~ 1996 Rangg $10.00 - $17.00 $ 9.00- $13.00 $ 7.00- $11.00 $ 6.00 - $10.00 Conditions 7:00 a.m. - Noon After Noon Before 5:00 p.m After 5:00 p.m. 4 OFF SEASON APRIL 16. 1996 to NOVEMBER, 14, 1996 fContinued) Special Cards Walk 18 Holes Walk 9 Holes Jr. Golf Green Fee $10.50 ~ $13.50 $ 7.OO - $10.00 $ 5.00-$8.00 $ 1.00 GROUP RATES All Day Weekdays After 12:00 p.m. Weekends & Holidays All Day Weekdays After 1:00 p.m. Weekends & Holidays Ail Day Weekdays After 1:00 p.m. Weekends & Holidays After 12:00 All Days After 2:00 p.m. Week-end WEEKDAYS $ 9.00 - $15.00 Range Balls Jr. Bucket Handicap Fee WEEKENDS & HOLIDAYS $13.00 - $18.00 LEAGUES $ 6.5O - $ 7.5O 2.00 Sm. Bucket 3.00 Lg. Bucket .25 Sm. Bucket .50 Lg. Bucket 12.00 Per Person (Yr. Beginning 10/1/95) All of the above are subject to 7% sales tax. SECTION 4. ADJUSTMENTS. The hours and conditions set forth in Sections Two and Three may be adjusted at the discretion of the Golf Course Manager, due to mount of play and area competitive conditions. The Golf Course Manager is authorized to establish the rate within the approved range due to mount of play and area competitive conditions. The Manager is authorized to advertise, and/or promote use of the Golf Course within the promotions budget account. SECTION 5. TEE-TIME RESERVATiONS. The ratio of reserved tee-times between members and non-members will be one member tee-me reservation to one non-member reservation. The Golf Course Manager may adjust th/s ratio for marketing purposes to stimulate additional play or to reflect changing conditions. SECTION 6. REPEAL. All Resolutions or parts of Resolutions in conflict herewith are repealed. SECTION 7. SEVERABILITY. In the event a court of competent jurisdiction shall hold or determine that any part of this Resolution is invalid or unconstitutional, the remainder of the Resolution shall not be affected and it shall be presumed that the City Council of the City of Sebastian did not intend to enact such invalid or unconstitutional provision, it shall further be assumed that the City Council would have enacted the remainder of this Resolution without said invalid and unconstitutional provision, thereby causing said remainder to remain in full force and effect. 6