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HomeMy WebLinkAboutR-95-42RESOLUTION NO. 95- 42 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEBASTIAN, FLORIDA, DIRECTING AND AUTHORIZING THE PURCHASE, SALE, ASSUMPTIONAND T~ANSFER 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.$01~ FLORIDA STATUTES; PROVIDING AUTHORITY TO COMPLETE THE PURCHASE~ SALE~ ASSUMPTION AND TP~tNSFER;AND PROVIDING FOR APPLICABILITY AND AN EFFECTIVE DATE. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEBASTIAN, INDIAN RIVER COUNTY, FLORIDA: SECTION 1. AUTHORITY. Pursuant to Chapters 166 and 180, Florida Statutes, the City Council (the "Council") of the City of Sebastian, Florida (the "City") has all of 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 County 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 County water and sewer system will provide a greater public use and increased public benefit than the existing uses. SECTION 3. PUBLIC INTEREST DETERMINATION OF PURCHASE. 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 Utility System; (B) The most recently available balance sheet for the Sebastian Utility System listing the assets and liabilities 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 interlocal 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 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 PURCHASE 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 this 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 carrying out the transactions contemplated by this Resolution or such interlocal agreement. SECTION 5. APPLICABILITY AND EFFECTIVE DATE. This Resolution shall be liberally construed to effect the purposes hereof and shall take effect immediately upon its adoption in accordance with applicable law. The foregoing Resolution was Councilmember ~~~ by Councilmember ,~ a vote, the vote was as follows: moved for adoption by The motion was seconded and, upon being put to Mayor Arthur L. Firtion Vice Mayor Carolyn Corum Councilmember Norma J. Damp Councilmember Ray Halloran Councilmember Louise R. Cartwright 4 The Mayor thereupon declared this Resolution duly passed and adopted this /~ .... day of /~ Kathryn ~4. O'Halloran, CMC/AAE (Seal) , 1995. Arthur L. Fir~ion, Mayor Approved as to Form and Content: Clifton A. McClelland, Jr. City Attorney 5 INTERLOCAL AGREEMENT PROVIDING FOR THE TRANSFER AND ASSUMPTION OF THE CITY OF SEBASTIAN W~TER AND WASTEWATER SYSTEM By and Between CITY OF SEBASTIAN, FLORIDA and INDIAN RIVER COUNTY, FLORIDA ADOPTED JULY , 1995 TABLE OF CONTENTS 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, TRANSFER AND ASSUMPTION OF SEBASTIAN UTILITY SYSTEM SECTION 3.01. SECTION 3.02. SECTION 3.03. PURCHASE, SALE, TRANSFER AND ASSUMPTION COVENANT ............ 9 SEBASTIAN UTILITY SYSTEM .......... 9 CONSIDERATION ........... 11 ARTICLE IV CONDITIONS PRECEDENT TO CLOSING SECTION 4.01. SECTION 4.02. SECTION 4.03. SECTION 4.04. SECTION 4.05. SECTION 4.06. AMENDMENT OF BOND RESOLUTION ....... 12 COUNTY RESOLUTION ASSUMING SYSTEM. . . 12 BOND INSURER APPROVAL .......... 12 VALIDATION ................ 13 BOND COUNSEL OPINIONS .......... 13 ORDINANCE CONSENTING TO ASSESSMENT WITHIN THE CITY ............. 14 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. CLOSING DATE AND PLACE .......... 15 DOCUMENTS FOR THE CLOSING ........ 15 RECORDING FEES AND DOCUMENTARY TAXES. . 16 TRANSFER OF FUND BALANCES ........ 16 RIGHT TO ENTER ........... 17 EMPLOYMENT PREFERENCE .......... 17 SECTION 5.07. SECTION 5.08. CONDUCT BETWEEN EXECUTION AND CLOSING. . RISK OF LOSS .............. 17 18 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. SECTION 6.09. COVENANTS EFFECTIVE UPON CLOSING ..... 18 ENFORCEMENT OF BOND RESOLUTION ..... 19 RATES, FEES OR OTHER CHARGES ...... 19 PUBLIC SERVICE TAX ........ 19 LICENSE TO USE CITY RIGHTS-OF-WAY. 20 OPERATION AND MAINTENANCE ........ 21 NO COMPETING SYSTEM ........... 21 IMPOSITION OF SPECIAL ASSESSMENTS. . . 22 CONCURRENCY; SYSTEM EXPANSION OBJECTIVES ............. 24 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 ....... 26 APPLICABLE LAW; JURISDICTION AND VENUE. . 26 FAILURE OF PERFORMANCE ......... 26 NOTICE ................ 27 PROFESSIONAL FEES; COSTS ......... 28 ASSIGNMENT ................ 28 AMENDMENTS AND WAIVERS .......... 28 ENTIRE AGREEMENT; RECORDING ....... 29 APPENDICES: APPENDIX A APPENDIX B APPENDIX C APPENDIX D APPENDIX E APPENDIX F APPENDIX G APPENDIX H Form of Amendment to Bond Resolution Form of County Resolution Assuming System Form of Consent of Bond insurer Form of County Bond Counsel Opinion Form of ordinance Consenting to Special Assessments Form of Closing Documents Future Incorporated Area Service Objectives Service Agreements ii INTERLOCAL AGREEMENT PROVIDING FOR THE TRANSFER AND ASSUMPTION OF THE CITY OF SEBASTIAN WATER AND WASTEWATER SYSTEM day of July, Florida, a political "County"), and the THIS INTERLOCAL AGREEMENT, is made and entered into as of this 1995, by and between Indian River County, subdivision of the State of Florida (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, transfer and assumption of the water and wastewater utility system owned by the City in Indian River 1 of 30 County, 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, transfer and assumption 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 CONSTRUCTION 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 ',Interlooal Agreement,, means this Interlocal Agreement Providing for the Transfer and Assumption 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 30 "Board" 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. "Bonds,' means the Utilities System Revenue Bonds, Series 1993 issued by the City. "Council,, means the City Council of the City of Sebastian, Florida. "County" means Indian River County, Florida. "City" means the City of Sebastian, Florida. "City Obligations,, means the obligations of the City imposed by the Bond Resolution, including, but not limited to, the payment of debt service on the Bonds and the observance of the covenants of the City undertaken as part of the Bond Resolution. "Riverfront Project,, means the Indian River Drive Water Distribution Project currently being constructed by the City. "Sebastian Utility System" 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. 3 of 30 (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 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. SECTION 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. SECTION 1.04. SECTION HEADINGS. 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. 4 of 30 ARTICLE II REPRESENTATIONS SECTION 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. (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 5 of 30 judicial equity. (E) discretion in accordance with general principles of 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. (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. 6 of 30 SECTION 2.02. REPRESENTATIONS 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 corporation 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. (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. 7 of 30 (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, 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. 8 of 30 ARTICLE III PURCHASE, SALE, TRANSFER AND ASSUMPTION OF SEBASTIAN UTILITY SYSTEM SECTION 3.01. PURCHASE, SALE, TRANSFER AND ASSUMPTION COVENANT. At closing, the County shall purchase and assume 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: (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) Ail 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 9 of 30 transmission connections, installations pipes or facilities, valves, meters, service and all other physical facilities and property 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) All 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. (5) All 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, as- 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 10 of 30 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 Bonds and the City Obligations and the provisions and requirements of 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, transfer and assumption of the Sebastian Utility System shall be Ten Dollars ($10.00) and: (A) The County's assumption of the City Obligations, including the obligation to timely repay, or in its sole discretion and at its sole expense defease, the Bonds and hold harmless and indemnify the City for any loss or damage resulting from the 11 of 30 County's failure to do so. The County specifically assumes the city's obligations listed in Appendix "H." (B) The covenants and provisions of this Agreement, including those in Article VI hereof, which are to become effective only upon the purchase, sale, transfer and assumption of the Sebastian Utility System as contemplated herein. ARTICLE IV CONDITIONS PRECEDENT TO CLOSING SECTION 4.01. AMENDMENT OF BOND RESOLUTION. Prior to closing the City shall amend the Bond Resolution pursuant to Section 8.03 thereof, to (A) authorize the purchase, sale, and transfer of the Sebastian Utility System to the County and the assumption by the County of all indebtedness and other obligations of the City under the Bond Resolution and the Bonds and (B) release the lien of the City's half-cent sales tax currently pledged to secure the Bonds. Such amendments 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 and assume the Bonds and the City Obligations on a parity with existing County water and wastewater utility system debt in substantially the form attached hereto as Appendix B. SECTION 4.03. BOND INSURER APPROVAL. Prior to closing the County shall obtain the written consent of Municipal Bond Investors Assurance Corporation, or any successor thereto, as insurer of the 12 of 30 Bonds, to the amendment to the Bond Resolution referenced in Section 4.01 hereof. Such consent shall be in substantially the form attached hereto as Appendix C. SECTION 4.04. 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 assumption of the City Obligations. In the event the County fails to fulfill the City obligations, the County shall defease the Bonds or take any other measures, including the payment of any claimants or judgment holders necessary to fulfill the County's covenants and responsibilities arising from this Agreement. The County shall also defease the Bonds if the amendment to the Bond Resolution required in Section 4.01 hereof does not release the City's lien of the half cent sales tax currently pledged to secure the Bonds. 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 U~.i!i.~ies, Inc. v. General Development Utilities, Inc. and City of Sebastian; Case Number 94- 0202-CA-03 filed in the Circuit Court of Indian River County, Florida. SECTION 4.05. BOND COUNSEL OPINIONS. Prior to closing the City shall receive the legal opinion of Bryant, Miller and Olive, P.A., bond counsel to the County, addressed to the City, to the effect that, (A) the amendment to the Bond Resolution required in 13 of 30 Section 4.01 hereof complies with the provisions of Article VIII of the Bond Resolution; and (B) based on such amendment to the Bond Resolution, the lien of the Bond Resolution on the City's half-cent sales tax has been released. Such opinion shall be in substantially the form attached hereto as Appendix D. SECTION 4.06. ORDINANCE 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 E. 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. 14 of 30 ARTICLE V CLOSING PROCEDURES AND ASSOCIATED M~TTERS SECTION 5.01. CLOSING DATE AND PLACE. (A) It is anticipated that the purchase, sale, transfer and assumption of the Sebastian Utility System contemplated by this Agreement will be closed on or before August 29, 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 F. (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 F. (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. 15 of 30 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 immune 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. SECTION 5.04. shall transfer to following Sebastian TRANSFER OF FUND BALANCES. the County the account Utility System related At closing the City balances from the 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: Reserve Subaccount Utility System R & R Account Sewer Impact Fee Account Water Impact Fee Account Customer Deposits 353,847 10,000 10,801 173,997 74,525 Project Account $ 454,53~ 16 of 30 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 ENTER. 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. SECTION 5.06. EMPLOYMENT 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 employment qualification and pre-employment screening criteria. Ail employment resulting from this Section shall be at will. 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. 17 of 30 (C) From 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. ARTICLE VI OPERATION, MAINTENANCE AND EXPANSION OF THE SEBASTIAN UTILITY SYSTEM SECTION 6.01. COVENANTS EFFECTIVE UPON 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. 18 of 30 , , . . SECTION 6.02. ENFORCEMENT OF BOND RESOLUTION. (A) The City may on its own behalf, or on behalf of the holders of any Bonds assumed by the County, enforce the county's observance of the City Obligations by way of equitable relief or an action in mandamus. (B) The County and the City hereby ir~evocably agree that this Agreement shall be deemed to have been made for the benefit of, and shall be a contract with, the holders from time to time of the Bonds, and that all the provisions of this Agreement shall be enforceable in any court of competent jurisdiction by any holder or holders of the Bonds. SECTION 6.03. 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. All 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 6.04. 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 19 of 30 , , 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 distinguish between service provided in incorporated and unincorporated areas. (B) The County shall not impose a tax on the purchase of water or wastewater services within the City. SECTION 6.05. 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 20 of 30 , , 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 public, and shall promptly repair any damage to or disruption of public or private property. SECTION 6.06. OPERATION AND MAINTENANCE. 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 6.07. 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 21 of 30 (other than the County) for the furnishing of water or wastewater services to or within the incorporated area of the City. SECTION 6.08. IMPOSITION OF SPECIAL ASSESSMENTS. (A) Provided the County has, or has identified within its most recently adopted water or wastewater capital improvement plan, 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 22 of 30 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. 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 Section 170.08 F.S. 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. (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 23 of 30 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. SECTION 6.09. 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, or assumed by the County. (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 24 of 30 furnish water service to all lots or parcels within the area designated as Phase I on Appendix G 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 G 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 G 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. 25 of 30 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. ~PPLICABLE 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 PERFORMANCE. (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 26 of 30 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 Vero 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 & Healy, 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 27 of 30 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. SECTION 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. SECTION 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, other than the holders of the Bonds, by reason hereof. SECTION 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 28 of 30 Agreement, whether or not similar, unless otherwise expressly provided. SECTION 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: 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 29 of 30 THE CITY 01' SEBASTIAN, I'LORIDA (SEAL) By: Mayor ATTEST: KATHRYN M. 0' HALLORAN, City Clerk By: Deputy Clerk 30 of 30 , . " APPENDIX A Amendment to Bond Resolution APPENDIX A RESOLUTION NO. R-95- A RESOLUTION AMENDING RESOLUTION NO. R-93-67 OF THE CITY OF SEBASTIAN, FLORIDA, TO AUTHORIZE THE TRANSFER BY THE CITY OF ITS WATER AND SEWER SYSTEM TO ANOTHER GOVERNMENTAL UNIT, AND BY AMENDING SECTIONS 4.11 AND 5.07 THEREOF; PROVIDING CERTAIN OTHER MATTERS IN CONNECTION THEREWITH; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Sebastian, Florida (the "Issuer") has by Resolution No. R-93-67 (the "Resolution") authorized the issuance of not to exceed $5,000,000 City of Sebastian, Florida Utilities System Revenue Bonds, Series 1993 (the "Series 1993 Bonds") for the purposes more fully described in the Resolution; and WHEREAS, it is in the best interest of the Issuer and the residents and inhabitants thereof to make certain amendments to the Resolution to permit a transfer of the Issuer's water and sewer system (the "City System") to Indian River County, Florida as permitted by Section 8.03 of the Resolution with the consent Of Municipal Bond Investors Assurance Corporation ("MBIA"), the insurer of the Series 1993 Bonds; NOW, THEREFOREt BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF SEBASTIAN, FLORIDA: SECTION 1. Section 4.11(A) (1) of the Resolution is hereby supplemented by adding to the end thereof the following new paragraph: Notwithstanding the foregoing, in the event the Issuer transfers the System in whole to another governmental unit in accordance with Section 5.07 hereof and such acquiring governmental unit assumes the obligations of the Issuer under the Series 1993 Bonds, where such governmental unit is operating a water and sewer system into which the system is to be integrated, the independent certified public accountant shall add net revenues of such governmental unit's water and sewer system for the prior three Fiscal Years to Net Revenues for purposes of determining whether the pledge of and lien on the Half-Cent Sales Tax Revenues shall be discharged and released. A-1 SECTION 2. The initial paragraph of Section 5.07 of the Resolution is hereby amended to read as follows: Except as permitted by this Section 5.07 hereof, the Issuer irrevocably covenants, binds and obligates itself not to sell, lease, encumber or in any manner dispose of the System as a whole or any substantial part thereof until all of the Bonds and all interest thereon shall have been paid in full or provision for payment has been made in accordance with the provisions of this Section 5.07 hereof or in accordance with Section 9.01 hereof. The Issuer specifically reserves the right to transfer the ownership and operation of the System as a whole, and all of the Issuer's rights and obligations under this Resolution and the Bonds to another governmental unit then operating a water and sewer system compatible with the System in Indian River County, Florida upon compliance with the following conditions: (a) the governmental unit acquiring the System shall constitute a governmental entity, obligations issued by which are exempt from Federal income taxation under Section 103(a) of the Code, (b) such governmental unit shall agree, in writing, to assume all obligations of the Issuer under this Resolution and the Bonds, and (c) the Issuer shall receive the prior written consent of the Insurer to the transfer and the terms thereof and the acknowledgment by the Insurer that the Bond Insurance Policy shall continue to remain in effect for the Bonds after such transfer in accordance with the terms of such Bond Insurance Policy. Upon the consummation of such transfer, the assuming governmental unit shall become the "Issuer" for all purposes hereunder. Thereafter, the transferee governmental unit shall be solely responsible for compliance with all of the terms and provisions hereof, including but not limited to the right to issue future series of Additional Bonds on a parity with any Bonds then Outstanding. The Issuer shall immediately transfer the various accounts and subaccounts established hereby to the transferee governmental unit. Upon such transfer, and following the release, if any, of the pledge of the Issuer's Half-Cent Sales Tax Revenues, the Issuer's sole obligation to the holders of the Bonds shall be to enforce, or to assist in the enforcement of, the obligations of the transferee governmental unit under this Resolution assumed as part of such transfer by way of an action in mandamus or otherwise, as permitted by law. SECTION 3. Except as amended by this Resolution, the Resolution shall remain in full force and effect. SECTION 4. This Resolution shall take effect immediately upon the filing with the City Clerk the written consent of the insurer to the adoption of this Resolution, in accordance with Section 8.03 of the Resolution. ADOPTED this day of , 1995. Mayor ATTEST: City Clerk Approved as to Form and Content: City Attorney A-3 APPENDIX B County Resolution Assuming System APPENDIX B RESOLUTION NO. 95- A RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF INDIAN RIVER COUNTY, FLORIDA PROVIDING FOR THE ACQUISITION FROM THE CITY OF SEBASTIAN, FLORIDA OF ITS WATER AND SEWER SYSTEM; PROVIDING FOR THE ASSUMPTION FROM THE CITY OF SEBASTIAN, FLORIDA OF ALL OF ITS OBLIGATIONS UNDER THE $5,000,000 CITY OF SEBASTIAN, FLORIDA UTILITIES SYSTEM REVENUE BONDS, SERIES 1993; PROVIDING FOR THE PAYMENT OF THE ASSUMED BONDS FROM THE NET REVENUES OF THE COUNTY'S WATER AND SEWER SYSTEM ON A PARITY WITH THE COUNTY'S WATER AND SEWER REVENUE BONDS, SERIES 1993A AND SERIES 1993B; PROVIDING FOR THE RIGHTS OF THE HOLDERS OF SUCH ASSUMED BONDS; 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 125.01, Florida Statutes, and other applicable provisions of law and Resolution No. 93-80 of the Board of County Commissioners of Indian River County, Florida (the "Original Resolution"). SECTION 2. DEFINITIONS. Unless the context otherwise requires, the terms defined in this section shall have the meanings specified in this 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. Except as otherwise provided herein, all defined terms in the Original Resolution shall have the same meanings when used herein. ,,Aoqulsition Agreement" shall mean that certain Interlocal Agreement Providing for the Transfer and Assumption 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. B-1 "Bonds" shall mean the outstanding principal amount of the County's Water and Sewer Revenue Bonds, Series 1993 A and the County's Water and Sewer Revenue Bonds, Series 1993 B, issued under and pursuant to the Original Resolution. "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-93-67 as adopted by the City and as amended from time to time. ,,City Obligations,, shall mean the obligations of the City imposed by the City Bond Resolution, including, but not limited to, the payment of debt service on the city Bonds and the observance of the covenants of the City undertaken as part of the City Bond Resolution. ,,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 of the Acquisition Agreement. ,,County,, shall mean Indian River County, Florida, a political subdivision of the State of Florida. "Paying Agent,, shall mean, as to the City Bonds, The Bank of New York Trust Company of Florida, as successor to Barnett Banks Trust Company, N.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. SECTION 3. and declared that: FINDINGS. It is hereby ascertained, determined (A) The County now owns, operates and maintains the System and will continue to derive revenue from the rates, fees, rentals and other charges made and collected for the service of such System, which Revenues and the other revenues pledged pursuant to the provisions of the Original Resolution are not now pledged or encumbered in any manner, except for the payment of the Bonds, including any obligations issued on a parity therewith. (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 B-Z of the city System from the City and the assumption of the City Obligations, which City Obligations are to be on a parity with the Bonds. 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. (C) The principal of and interest and redemption premium, if any, on the city Bonds, the Bonds and all reserve and other payments shall be payable solely from the Pledged Funds as provided herein and in the Original Resolution. The County shall never be required to levy ad valorem taxes on any real or personal property therein to pay the principal of and interest on the City Bonds or to make any other payments provided for herein. The City Bonds and the City Obligations herein assumed shall not constitute a lien upon any properties owned by or located within the boundaries of the County. (D) The Original Resolution in Section 17(P) thereof provides for the issuance of Additional Parity Bonds under the terms, limitations and conditions provided therein. (E) The County has complied with the terms, conditions and restrictions contained in the Original Resolution. The County is, therefore, legally entitled to assume the City Obligations and the City Bonds as Additional Parity Bonds with the authorization contained in the Original Resolution. (F) The City Obligations related to the operation of the City System and the disposition of the revenues of the City System are not greater than the existing obligations of the County regarding the operation of the System and the disposition of the Pledged Funds under the Original Resolution, and as a result, the assumption thereof by the County will not cause the County to undertake any obligations more burdensome than those previously undertaken pursuant to the Original Resolution. (G) The City Obligations and City Bonds herein authorized to be assumed by the County shall be on a parity and rank equally, as to lien on and source and security for payment from the Pledged Funds and in all other respects, with the Bonds. SECTION 4. AUTHORIZATION OF ASSUMPTION OF CITY OBLIGATIONS AND ACQUISITION OF THE CITY SYSTEM. There is hereby authorized the assumption of the City Obligations and the City Bonds in the manner provided herein and in the Acquisition Agreement, and the acceptance and acquisition of the city System, in accordance with the terms and conditions of the Acquisition Agreement is hereby authorized. Upon the acquisition of the City System, the City System shall be integrated into and become a part of 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. RESOLUTION TO CONSTITUTE CONTRACT. In consideration of the acceptance of the assumption of the City Obligations and the City Bonds authorized to be assumed hereunder by those who shall hold the same from time to time, this Resolution shall be deemed to be and shall constitute a contract between the County and such Holders. The covenants and agreements herein set forth to be performed by the County shall be for the equal benefit, protection and security of the legal Holders of any and all of the Bonds, all of which shall be of equal rank and without preference, priority or distinction of any of the Bonds over any other thereof, except as expressly provided therein and herein. SECTION 6. AUTHORIZATION OF ASSUMPTION 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 assumed by the County in the aggregate principal amount of not exceeding $5,000,000. Said Assumption shall be effective automatically and without further action on the part of the County as of the date of closing referenced in the Acquisition Agreement. SECTION 7. NEGOTIABILITY, REGISTRATION AND TRANSFER OF CITY BONDS. The Registrar for the City Bonds shall continue to keep books for the registration of and for the registration of transfers of the City Bonds as provided in the City Bond Resolution. The transfer of any City Bonds may be registered only upon such books and only upon surrender thereof to the Registrar together with an assignment duly executed by the bondholder or his attorney or legal representative in such form as shall be satisfactory to the Registrar. SECTION 8. OWNERSHIP OF CITY BONDS. The person in whose name any City Bond shall be registered shall be deemed and regarded as the absolute owner thereof for all purposes, and payment of or on account of the principal or redemption price of any such City Bond, and the interest on any such City Bonds shall be made only to or upon the order of the registered owner thereof or his legal representative. Ail such payments shall be valid and effectual to satisfy and discharge the liability upon such city Bond including the premium, if any, and interest thereon to the extent of the sum or sums so paid. SECTION 9. PROVISIONS FOR REDEMPTION. The City Bonds shall be subject to redemption prior to their maturity, at the option of the County, at such times and in such manner as are fixed by the City Bond Resolution. Notice of such redemption shall be made in accordance with the City Bond Resolution. B-4 SECTION 10. APPLICATION OF PROVISIONS OF ORIGINAL RESOLUTION. The City Bonds herein authorized shall, for all purposes (except as herein expressly provided) be considered to be Additional Parity Bonds issued under the authority of the Original Resolution, and shall be entitled to all the protection and security provided therein for the Bonds, and shall be in all respects entitled to the same security, rights and privileges enjoyed by the Bonds. The covenants and pledges contained in the Original Resolution shall be applicable to the City Bonds herein authorized in like manner as applicable to the Bonds, in lieu of the covenants and pledges set forth in the City Bond Resolution and applicable to the City Bonds, to the extent any such covenants and pledges contained in the Original Resolution impose a greater burden on the County than was imposed on the City under the City Bond Resolution; provided, however, that to the extent the City Bond Resolution imposes covenants and pledges on the city which are either not imposed on the County under the Original Resolution or impose a greater burden than similar covenants and pledges imposed on the County by the Original Resolution, then such additional covenants and pledges so imposed by the City Bond Resolution shall be hereinafter imposed on the County. The principal of and interest on the City Bonds shall be hereafter payable from the Sinking Fund established in the original Resolution on a parity with the Bonds, and payments shall be made into such Sinking Fund by the County in amounts fully sufficient to pay the principal of and interest on the Bonds and the City Bonds as such principal and interest become due. All funds and accounts created pursuant to the Original Resolution shall be held by the County in trust for the holders of the Bonds and the City Bonds. The Pledged Funds shall immediately be subject to the lien of this pledge without any physical delivery thereof or further act, and the lien of this pledge shall be valid and binding as against all parties having claims of any kind in tort, contract or otherwise against the County. SECTION 11. COVENANTS OF THE COUNTY. The provisions of Section 17 of the Original Resolution shall be deemed applicable to this Resolution and shall apply to the City Bonds assumed pursuant to this Resolution as though fully restated herein. SECTION 12. VALIDATION AUTHORIZED. The attorney for the County, in conjunction with the County's Bond counsel, is hereby authorized and directed to cause proceedings for the validation of the assumption of the City Obligations and the City Bonds to be instituted and maintained in the Circuit Court in and for Indian River County, Florida. SECTION 13. SEVERABILITY. if any one or more of the covenants, agreements or provisions of this Resolution should be B-5 held contrary to any express provision of law or contrary to the policy of express law, though not expressly prohibited, or against 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 14. iNCONSISTENT RESOLUTIONS. 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 15. EFFECTIVE DATE. The provisions of this Resolution shall take effect immediately upon its passage. PASSED AND ADOPTED the day of , 1995. BOARD OF COUNTY COMMISSIONERS OF INDIAN RIVER COUNTY, FLORIDA (SEAL) Chairman ATTEST: County Clerk B-$ . . . . APPENDIX C Consent of Bond Insurer .. Members of the City Council City of Sebastian Sebastian, Florida Board of County Commissioners Indian River County Vero Beach, Florida RE: City of Sebastian, Florida utilities System Revenue Bonds, Series 1993 Ladies and Gentlemen: The undersigned, on behalf of Municipal Bond Investors Assurance Corporation, the insurer of the above-referenced bonds (the "Bonds"), does hereby consent to the provisions of Resolution No. ____ of the City Council of the City of Sebastian, Florida (the "City"), which resolution amends certain provisions of City Resolution No. R-93-67, securing the Bonds (the "Bond Resolution") , and to the assumption by Indian River County of the obligations of the City under the Bond Resolution. In witness whereof, I have hereunto set my hand this , 1995. day of MUNICIPAL BOND INVESTORS ASSURANCE CORPORATION C-1 . . " APPENDIX D County Bond Counsel Opinion !f 7' ;;~.. .! .l:rt.'::.,,~ (form of opinion of Bryant, Miller and Olive, P.A.) Members of the City Council City of Sebastian, Florida Ladies and Gentlemen: We have acted as bond counsel to Indian River County, Florida (the "County") in connection with the acquisition by the County of a water and wastewater system (the "Sebastian utility System") owned by the City of Sebastian, Florida (the "city"). In connection with such acquisition, the County is assuming the obligations of the City under City Resolution No. R-93-58 (the "Bond Resolution"), which resolution secures the City's utilities System Revenue Bonds, Series 1993 (the "Bonds"). In our capacity as bond counsel, we have examined the following: (i) the Bond Resolution; (ii) Resolution No. of the City, adopted , 1995, amending the Bond Resolution in certain respects (the "City Amending Resolution"); (iii) the Interlocal Agreement providing for the Transfer and Assumption of the City of Sebastian Water and Wastewater System, by and between the City and the County, adopted , 1995 (the "Interlocal Agreement"); (iv) Resolution No. of the Board of County Commissioners of the County, adopted , 1995 (the "County Resolution"), agreeing to accept and acquire the Sebastian utility System and assuming the City's obligations under the Bond Resolution; (v) the consent of Municipal Bond Investors Assurance corporation, the insurer of the Bonds, to the provisions of the City Amending Resolution and the assumption by the County of the City's obligations under the Bond Resolution; and (vi) such other records, documents, certificates, proceedings and questions of law as we have considered necessary to enable us to render this opinion. Based upon such examination, we are of the opinion that: 1. The City Amending Resolution complies with the provisions of Article VIII of the Bond Resolution. 2. Based upon the City Amending Resolution, the lien of the . Bond Resolution on the City's Hal f -Cent Sales Tax Revenues (as defined therein) has been released. ----- '.:.:.:.:.~.;.:.:.:.:.:.:.:.:.:.:.:.:.:.:.;.:.;.:.:.:.:.:.:.:.:.:.:.:.;.;.;.;.;.:.:.:.:.:.;.:.'.:.;.:.:.:.:.:.:.: ...:.:.....:...... ............ .'.:.', .... '.:.',' .'.' .'. ........-... ',' ,.... -. -. -.'. -. -.'. -.' .-...'... .'. .'.'. This opinion is rendered solely for your benefit and is not intended to be relied upon by any other party. Respectfully submitted, D-1 APPENDIX E Ordinance Consenting to Special Assessments