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HomeMy WebLinkAboutR-91-20RESOLUTION NO. R-91-20 A RESOLUTION OF THE CITY OF SEBASTIAN, INDIAN RIVER COUNTY, FLORIDA, AUTHORIZING THE MAYOR AND THE CITY CLERK TO SIGN, ON BEHALF OF THE CITY, A STIPULATED SETTLEMENT AGREEMENT WITH THE FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS (THE "DCA"), STIPULATING THE CONDITIONS FOR SETTLING THE DISPUTE BETWEEN THE DCA AND THE CITY OF SEBASTIAN WITH REGARD TO THE COMPREHENSIVE PLAN ADOPTED BY THE CITY OF SEBASTIAN BY ORDINANCE NO. 0-89-19 ON MARCH 28, 1990; PROVIDING FOR REPEAL OF RESOLUTIONS OR PARTS OF RESOLUTIONS IN CONFLICT HEREWITH; PROVIDING FOR SEVERABILITY; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City of Sebastian adopted a Comprehensive Plan on March 28, 1990, by Ordinance No. 0-89-19; and WHEREAS, the DCA has filed a Statement of Intention to find the City's Comprehensive Plan not in compliance with State Statute and the Florida Administrative Code; and WHEREAS, the City and the DCA have engaged in lengthy negotiations for the purpose of settling any and all disputes between the City and the DCA with respect to the City's Comprehensive Plan; and WHEREAS, the City and the DCA have come to a formal agreement with respect to amendments to the City's Comprehensive Plan which will result in the DCA finding the City's Comprehensive Plan in compliance with State Statute and Florida Administrative Code; and WHEREAS, a Stipulated Settlement Agreement has been prepared setting forth all requirements for amendments to the City's Comprehensive Plan consistent with the agreement reached between the City of Sebastian and the DCA; and 1 WHEREAS, the City Council has determined that entering into the Stipulated Settlement Agreement with the DCA is in the best interests of the people of the City of Sebastian and that the Stipulated Settlement Agreement shall serve a valid municipal purpose. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEBASTIAN, INDIAN RIVER COUNTY, FLORIDA, tha~: Section 1. AGREEMENT. The Mayor and the City Clerk of the City of Sebastian, Indian River County, Florida, are hereby authorized to sign, on behalf of the City, the Stipulated Settlement Agreement (bearing DOAH Case No. 90-3609GM) between the DCA and the City of Sebastian. Section 2. CONFLIC?. Ail resolutions or parts of resolutions in conflict herewith are hereby repealed. Section 3. 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 such invalid and unconstitutional provision, thereby causing said remainder to remain in full force and effect. 2 Section 4. EFFECTIVE DATE. This Resolution shall take effect immediately upon its adoption. The foregoing Resolution was moved for adoption by Councilman ~/~l~ . The motion was seconded by Councilman and, upon being put into a vote, the vote was as follows: W.E. Conyers Vice-Mayor Frank Oberbeck Councilman Peter R. Holyk Councilman Lonnie R. Powell Councilman George R. Reid The Mayor thereupon declared this Resolution duly passed and ATTEST: .. ' ' ~athrY~/M. b"Halloran,' CMC/AAE,' Cit-y Clerk ( SEAL ) .... CITY OF SEBASTIAN, FLORIDA ~.~. C6nye~Y0~ Approved as ~ Form and Content: · ? Char~es Ian Nash, City Attorney 3 STATE OF FLORIDA Petitioner, ! vs. ' ) DOAH CASE NO. CITY OF SEBASTIAN ) , ) ) Respondent. ) ) ~ STI~U_.LATED SETTLEMENT A~REE~ENT Petitioner Florida Department of Community Affairs (Department) and Respondent Sebastian (City) hereby stipulate and agree as follows: GENERAL PROVISIONS 1. Definitions. As used in this agreement, the following words and phrases shall have the following meanings: a. Act: The Local Government Comprehensive Planning and Land Development Regulation Act, as codified in Part II, Chapter 163, Florida Statutes (1987). b. Agreement: This stipulated settlement agreement. c. ComDrebe~siye.P]a~n_ or ~aR: City of S%~stlan Comprehensive Planning, as adopted by Ordinance No. 0-89-19 on March 28, 1990. Hearings. d. DOAH: The Florida Division of Administrative e. ..In comPliance or .into cgmP!iapcg: Consistent with Sections 163.3177, 163.3178 and 163.3191, Florida Statutes, Sectlon'187.201, Florida Statutes, the applicable regional policy plan, and Chapter 9J-5, Florida Administrative Code. f. Notice: The notice of intent issued by the Department to which was attached its statement of intent to find the plan not in compliance. g. Petition: The petition for administrative hearing and relief filed by the Department in this case. h. Remedial action: A remedial plan amendment, submission of support document or other action described in the statement of intent or this agreement as an action which must be completed to bring the plan into compliance. ]. Remedial plan ~mendment: An amendment to the plan or support document, the need for which is identified in this agreement, including its exhibits, and which the City must adopt to complete all remedial actions. Remedial plan amendments adopted pursuant to this agreement must, in the opinion of the Department, be consistent with and substant].ally similar in concept and intent to the ones identified in this agreement or be otherwise acceptable to the Department. j. Statement of intent: The statement of i~ntent to find the plan not in compliance issued by the Department in this case. k. SUDport document: The studies, inventory maps, surveys, data, inventories, listings or analyses used to develop and support the plan. 2. Entire aqree~ent. This Ks the entire agreement between the Part~es and no verbal or written assurance or promise is effective or binding unless included in this document. 3. ~PDroyal ~qovernin~ body. This agreement has been approved by the City's governing body at a public hearing advertised in a quarter-page advertisement published approximately 14 days prior to the hearing in the manner prescribed for advertisements in Section 163.3184(15) (c), F.S. This agreement has been executed by the appropriate City officer as provided in the City's charter or other regulations. 4. Chan~gs iD law. Nothing in this agreement shall be construed to relieve either party from adhering to the law, and in the event of a change in any statute or administrative regulation inconsistent with this agreement, the statute or regulation shall take precedence. 5. Other persons uDaffgQted. Nothing in this agreement shall be deemed to affect the rights of any person under the law other than the parties. 6. Attorney fees and costs. Each party shall bear its own costs, including attorney fees. 7. Public records. The City shall allow public access to all documents, reports, papers, letters or other material, subject to the provision of Chapter 119, Florida Statutes, prepared or received by the City ~n conjunction with this agreement. It is e~pressly understood that upon receipt of substantial evidence of the City's refusal to comply with this provision, the Department will have the right to terminate this agreement for breach. 8. ~ffective date. This agreement shall become effective upon the last date of signing by the parties. PART I 9. Purpose o~ P~rt I. The parties enter into Part I of this agreement in a spirit of cooperation for the purpose of avoiding costly, lengthy and unnecessary litigation and in recognition of the desire for the speedy and reasonable resolution of disputes arising out of or related to the plan. 10. Department powers. The Department is the state land planning agency and has the power and duty to administer and enforce the Act and to determine whether the plan is in compliance. 11. Exhibits. Exhibits A and B are hereby incorporated by reference. In the event of conflict between Exhibit A and Exhibit B, the provisions of Exhibit B shall control. 12. Adop~iog.of.p!an.~nd support document. The ~ity provided the support documents and adopted the plan by ordinance at a properly advertised public hearing held on March 28, 1990. 13. Re¥iew of Dlag.agd fi__n_dinG_ of noncQmp~ianc,. After reviewing the adopted plan the Department issued its notice and statement of intent to find the plan not in compliance, and filed the petition in this case to that effect. 14. NeGotiation.of ~grgement; ~ntept. Subsequent to the filing of the petition the parties conferred and agreed to resolve the issues in the petition, notice and statement of intent through this agreement. It is the intent of this agreement to resolve fully all issues between the parties in this proceeding. 15. Di___~smlssal recommendation. If the City completes the remedial actions required by this agreement, including the adoption of required plan amendments as set forth herein, the Department shall request that the Administration Commission enter an order dismissing this proceeding without imposing any sanction that might otherwise be imposed under the Act. Thereafter, the Department shall take every action necessary to effectuate this paragraph. 16. FilinG.and continuance. This agreement shall be filed with DOAH by the Department after execution by the parties and shall constitute a joint request that DOAH continue this proceeding for a time sufficient to allow the parties to complete their responsibilities under the agreement. However, the Department may request DOAH to schedule a hearing of t~is proceeding at an earlier time, as provided in this agreement. 17. Retention of right to final hearinG. Both parties hereby retain the right to have a final hearing in this proceeding and nothing in this agreement shall be deemed a waiver of such right. 5 18. Descriptipn 9f prov!sions..no~ in compliance ~nd remed!al..act~ons; legal effect of agreement. Exhibit A to this agreement is the statement of intent and contains a description of the plan provisions found not in compliance by the Department and remedial action needed to bring the plan into compliance. It also constitutes an admission and stipulation by the Department that if the described remedial actions are accomplished the plan will be in compliance. Exhibit B contains additional detail regarding some provisions not in compliance and remedial actions needed for compliance. In the event of a conflict between Exhibit A and Exhibit B, the provisions in Exhibit B shall control. 19. Remedial .~ct~ons to be considered for adopt!oR. The City agrees to consider for adoption by formal action of its governing body all remedial actions described in Exhibit A (as modified by Exhibit B) no later than the time period provided for in this agreement. 20. Transmitta~ hearing for remedial actions. Within 60 days after the effective date of this agreement the City shall deliver to the Department, after a transmittal public Rearing pursuant to Section 163.3184(3) of the Act, all remedial actions, including all remedial plan amendments and support documents, along with a transmittal letter describing the remedial action taken for each part of the plan amended, including references to specific portions and pages. 6 21. Review o~ transmittal. The Department shall provide the 'City with its objections, recommendations and comments on the remedial amendments and support documents in the manner provided in Chapter 9J-11, Florida Administrative Code, and Subsections 163.3184(3)-(7), Florida Statutes. If the City fails to deliver or rejects any remedial plan amendment or support document described in Exhibit A or Exhibit B, the Department may move for a final hearing for this proceeding as provided in Paragraph 19 above. ~ 22. Adoption or approval of remedial.plan a~end~ents. Within 60 days after receipt of the Department's objections, recommendations and comments, the City shall consider for adoption all remedial plan amendments and amendments to the support document, and deliver the amendments and a transmittal letter to the Department as provided in Subsection 163.3184(7), Florida Statutes, and Rule 9J-11.011(3), F.A.C. The letter shall describe the remedial action adopted for each part of the plan amended, including references to specific portions and pages. 23. Review. of adoptions ~nd notice of intent. Within 45 days after receipt of the adopted remedial plan amendments and support documents, the Department shall issue a notice of intent pursuant to Section 163.3184, Florida Statutes, for the adopted amendments in accordance with this agreement. a. In compliance: If the adopted remedial actions are consistent with the recommendations in Exhibit A or Exhibit B, the Department shall find the plan amendments in compliance 7 and shall request that DOA}{ relinquish jurisdiction and join the Department in requesting that the Administration Commission adopt a final order dismissing this proceeding and finding the plan, as amended, in compliance. b. Not in compliance: If the remedial actions are not adopted, or if the Department determines they are not consistent with and substantially similar to the recommendations in Exhibit A or Exhibit B, the Department shall issue a notice of intent to ;ind the plan amendments not in compliance and shall forward the notice to DOAH for a hearing as provided in Subsection 163.3184(10), Florida Statutes, and may request that the matter be consolidated with the pending proceeding for a single, final hearing. The parties hereby stipulate to that consolidatJon and to the setting of a single, final hearing if the Department so requests. The Department may also move for a final hearing of this proceeding as provided in Paragraph 17 above. 24. Concu_rre.n.t amendment. Nothing in this agreement shall be construed to prohibit the amendment of the plan concurrent with the adoption of this agreement, ti Fart II 25. Purpose of Part II. The parties enter into Part II of this agreement to provide funding to assist the City to undertake the remedial actions necessary to bring the adopted plan submitted pursuant to Subsection 163.3167(2), F.S. and ChaPter 9J-12, F.A.C. into compliance. 26. Liability. To the extent of funds received under this agreement, the City hereby agrees to hold harmless the Department, to the extent allowed by law, from all claims, demands, liabilities and suits of third persons or entities not a party to this agreement arising out of, or due to any act, occurrence, or omission of the City, its subcontractors or agents, if any, that is related to the City's performance under this agreement. 27. Ava!labi~it¥ of Fu~d~. Payment of state funds pursuant to this agreement is subject to and conditioned upon the total release of authorized appropriations from the Local Government Comprehensive Planning Assistance Program provided by law. The State of Florida,s performance and obligation to pay under this Agreement is contingent upon an annual appropriation by the Legislature as noted in Section 287.0582, Florida Statutes. 28. Consideration. a. As consideration for work performed under this agreement, the Department agrees to pay a fixed fee o~1~ up to $10,000. Payment will be based on the payment schedule and other conditions contained in paragraph 29 below. b. Use of Funds: Funds may not be used for the purchase of equipment, fixtures, or other tangible property of a nonconsumable and nonexpendable nature with an expected useful llfe which exceeds the duration of this contract. 9 Funds may also agreement. not be used for attorney fees unrelated to this 29. ~ethod of Payment. Deliverable Proposed remedial action Adopted remedial action Total Due Dat9 No later than 60 days after execution of agreement No later than time frames specified in s. 163.3184(7), F.S. for transmittal of adopted plan amendments Pavmen~t $5,000 $5,000 $10,000 The first payment will be made by the Department after timely receipt of the deliverable which will be verified by the Department to include all required proposed remedial actions. If the transmitted remedial actions are not received in accordance with the schedule in this agreement, or if the Department in its discretion determines that the transmitted remedial actions are inconsistent with this agreement, the first payment shall not be made. The final payment will be made after receipt of the adopted remedial actions and issuance by the Department of a Notice of Intent to find the plan in compliance. If t~le adopted remedial actions are not received in accordance with the schedule in this agreement, or if the Department determines that the adopted remedial actions are not in compliance, the final payment shall not be made and the City shall refund the first payment to the Department within 30 days after issuance of the Notice of Intent. 10 30. Audit Requirements. a. The city agrees to maintain adequate financial procedures and adequate support documents to account for the expenditures of funds under Part II of this agreement. b. These records shall be available at all reasonable times for inspection, review, or audit by state personnel and other personnel duly authorized by the Department. "Reasonable" shall be construed according to circumstances, but ordinarily shall mean normal business hours of 8:00 a.m. to 5:00 p.m., local time, Monday through Friday. c. The City shall also provide the Department with the records, reports or financial statements upon request for the purposes of auditing and monitoring the funds awarded under Part II of this agreement. d. The city shall include an accounting of these funds under Part II of this agreement in the local audit prepared by the City of the 1989-90 and 1990-91 fiscal years. e. In the event the audit shows that all or a portion of the funds provided under Part II, were not spent in accordance with Chapter 9J-26, Florida Administrative Code, and t~e conditions of this agreement, the City shall be held liable for repayment to the Department of all funds not spent in accordance with these applicable regulations and agreement provisions within thirty (30) days after the Department has notified the City of such noncompliance. 11 f. The City shall retain all financial records, supporting documents, statistical records, and any other documents pertinent to Part II of this agreement for a period of three years after the date of submission of the final expenditures report or, if an audit has been initiated and audit findings have not been resolved at the end of three years, the records shall be retained until resolution of the audit findings. 31. Modification of Part II. Either party may request modification of the provisions of Part II of this agreement. changes which are mutually agreed upon shall be made by written correspondence from the Department, by the parties and incorporated as part of this agreement. This agreement contains all the terms and conditions agreed to by the parties. ].2 ID wibness whereof, the parties hereto have caused this agreement to be executed by their undersigned officials as duly authorized. DEPARTMENT OF COMM[.3NITY AFFAIRS Thomam G. Pelham Secretary Date Assistant General Counsel CITY OF SEBASTIAN Attest: City Attorney /