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Home My WebLink AboutR-95-55RESOLUTION NO. R-95-$5 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEBASTIAN, INDIAN RIVER COUNTY, FLORIDA, DIRECTING 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 AND AN EFFECTIVE DATE. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEBASTIAN, INDIAN RIVER COUNTY, FLORIDA, that: 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 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 Indian River County (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 heating 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 2 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 fmancial 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 "Inteflocal 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 Council 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 inteflocal agreement, for the full, punctual and complete performance of all of the terms, covenants and agreements contained in this Resolution and such inteflocal 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 inteflocal 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 in accordance with applicable law. The foregoing Resolution was moved for adoption b~' Councilmember CA'tLr. ir3 . The motion was seconded by Councilmember 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 Ray Halloran Councilmember Louise R. Cartwright The Mayor thereupon declared this Resolution duly passed and adopted this d yof -! I(athryn M(/.O'Halloran, cMC/AAE City Clerk (SEAL) Approved as to Form and Content: Clifton A. McClelland, Jr. City Attorney Arthur L. Firtion, Mayor 4 CLERK ClP.,O~I ,Y' COURT INDIAN RIVER CO,, FL.A, INTERLOC&L ~REE~Eh'iT PROViDiNG FOR THE TI~%.~FER OF THE CITY OF ~EB&STIANW&TER~,ND W'ASTEW~TER SYSTE~ By and Between CITY OF SEBASTIAN, FLORIDA and INDIAN RIVER COUNTY, FLORIDA COUNTY A'I'FO',~NEY'$ OFFICE INDIAN EWER COUNTY 1840 2$~h St'reef T~%BLE OF CONTENTB 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. PURCHASE, SALE AND TRANSFER COVENANT SECTION 3.02. SEBASTIAN UTILITY SYSTEM ..... SECTION 3.03. CONSIDERATION .............. 8 8 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 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 Form 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 ZHTERLOCAL &GREEKEHT PROVTDZNG FOR THE TiUt]fSFER JP, NI:) AHSUMFTZON OF THE CZTY OF BRBAflTZAN WATER MID WAHTEW]tTER SYSTEH THIS INTERLOCAL&GREEMENT, 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 ~qD 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 "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 ,,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. ,,Counoil,, means the city Council of the City of Sebastian, Florida. ,,County,, means Indian River County, Florida. ",C~tyl, means the City of Sebastian, Florida. ""R~verfront Project"" means the Indian River Drive Water Distribution Project currently being constructed by the City. ,,Sebastian Utility Syste~,, 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. 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. 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. 4 of 28 (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 p=ior 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 affectthe 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. REPRESENTATION8 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. 6 of 28 (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 creditorst rights generally, or by the exercise of judicial discretion in accordance with general principles of equity. (E) To the best of the Cityts k~owledge 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 28 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 PURCNASE, SALE AND TRANSFER OF SEBASTIAN UTILITY SYSTEM SECTION 3.01. PURCHASE, BJ~.,B ~ 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 dlsposal and reuse system, or any such interest it hereafter acquires, relating thereto, including the following: 8 of 28 (1) All 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 11th 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. 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) Ail 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 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) Ail 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 s~bject to the provisions and requirements of 10 of 28 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 ~SSUMING 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, inc'ludinq 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.....~tilities, Inc. v....General D~veloDment Utilities. Inc. and city of_~.ebastian; Case Number 94- 0202-CA-03 filed in the Circuit Court of Indian River County, Florida.. SECTION 4.04. 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 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 ARTZCLEV CLOSING PROCEDURe8 AND ABSOCrATED~tTTER8 SECTION 5.0~. CLOSING D~TE ~ 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. DOCUF~NTS 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 ].3 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 doe~ 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 T~%XES. (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 TRANSFER OF FUND BAL~NCES. At closing the City 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 Sewer Impact Fee Account Water Impact Fee Account Customer Deposits Accounts Receivable Project Account TOTAL: 10,801 173,997 74,525 95,394 $ 454,532 $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 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. All employment resulting from this Section shall be at will. 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) 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. 16 of 28 ARTICLE VX OPEI~TIONv MAiNTENaNCE AND EXPANSION. OF THE SEBASTIAN UTILITY SYSTEM SECTION 6.01. COVENANTS EFFECTZVE 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. SECTION 6.0Z. RATESv FEES OR OTHER (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 6.03. 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- distinguish between unincorporated areas. service provided in incorporated and 17 of 28 (B) The County shall not impose a tax on the purchase of water or wastewater services within the City. SECTION 6.04. LICENSE TO USE CITY RIGHTS-OF-I~AY. (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 constr~ct, 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 public, and shall promptly repair any damage to or disruption of public or private property. ],8 of 28 SECTION 6.05. 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 6.06. NO COMPETING BYBTE~. 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 A88ESSi~ENTB. (A) Provided the County has, or has identified within its most recently adopted water or wastewater capital improvement plan, ~9 of 28 adequate treatment capacity, the City shall have the power and authority to finance, construct, acqui=e or extend water or wastewatertransmission, 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 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. Foliowing 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. SECTION 6.08. CONCURRENCY; SYSTE~ 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 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 A~TICL~ VII GENERAL PROVISIONS SECTION 7.01. TI~ IS OF THE ESgENCE. 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 LAN; 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 24 of 28 performance without thereby waiving any action for damages resulting from the other party's breach. BECTION ?.04. NOTICE. (A) All 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 Vero 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 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. 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 7.05. ~SIGNMENT. 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. 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 26 Of 28 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, specifically set forth herein. except as (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 f_irS.t above written. / C;": fl · (SEAL) JEFFREY .K. BARTON, Clerk of the CircUit Court and Ex-Officio Clerk of the Board of County Commissioners of";indian River County, Florida .... Deputy Clerk -BOARD OF COUNTY COMMISSIONERS By g~hai~an /~-2~7~/~ A~. ,~6~- 27 of 28 (SEAL) ATTEST: KATHRYN M. O'HALLORAN, City Clerk THE CXT¥ OF SEBASTIAN~ FLORIDA Mayor 28 of 28 201 South Mo,~roe Tallihame, ~orMa ~301 Board of County Com~ssloners of Indian River County, FZor~da Veto Beach, Florida City Commission of _City of Sebastian, Florida Sebastia~, Florida MBIA Insurance Corporation Armonk, New York RE: city of sebastian, Florida Utilities Syste~Revenue Bonds, Series 1993 Ladies and Gentlemen: de£ea:: have. ~rve~_.as bond counsel ~n oonne~t~on with the _ rice ~= _~J~e. cl~y of Sebastian, Florida Util~ties System .ae~nUe_B~nas, ser~es 1993 (~he WDefeased Bonds.), which are being aeteasea ~n con~ect~on with~he ao~isitionbyIndia~River Count ~l~rlda (~he 'Cotmty-) of the u~ility svste~ of the c4~v ~e~astian (the "Cltv#~ ~ursuant t~ -- ;-~--; .... i-~= ..... ~& ~ j. ~unas =o aefease the Defeased Bonds are ~ CZ sepc~r 29, 1995, by and ~o~ ~e City, the Co~y and ~e Ba~ of New York Company of Florida, N.h., as ~~ Holder. We are o£ the opinion t/~at the holders of the Defeased Bonds have no further pledge of and lien on the Pledged Funds under the ~ o receive palmen= =rom the special fund created for such ~u~_°~.F~uant~to th~ .~o~o~.pepos~t Agreement. In rendering ~,~0 up~n~on we nave reLzea on ~ne repor~ prepared by MCGladrey & Pullen, verifying the ariY~me~ical accuracy of certain compu~a=ions, and have assumed the enforceability of the Escrow "~'""'~'~ ~¥FNgT 19TLLI="R OLIVE l~epo~:[t Aqreeztent. As used h~ein, ~e t~ "Pie ave ~e me~nq se~ dg~ VL--y truly you.re, RESOLUTION NO. 95-102 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; APPROVING AND AUTHORIZING THE EXECUTION AND DELIVERY OF AN INTERLOCAL AGREEMENT PROVIDING FOR THE TRANSFER OF THE CITY OF SEBASTIAN WATER AND WASTEWATER SYSTEM; PROVIDING FOR THE DEFEASANCE OF THE $5,000,000 CITY OF SEBASTIAN, FLORIDA UTILITIES SYSTEM REVENUE BONDS, SERIES 1993 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 ITS INTENT TO REIMBURSE CERTAIN ACQUISITION COSTS INCURRED WITH PROCEEDS OF FUTURE 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 125.01, 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 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. "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. E X"'H I Bt T "B"] "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 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, as to the City Bonds, The Bank of New York (formerly 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. "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. SECTION 3. FINDINGS. It is hereby ascertained, determined and declared that: (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. (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 o~.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 Chairman, 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, $~bject 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 the 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. 4 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 Exhibit 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 form 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 5 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 that 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 6 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 RESOLUTIONS. All 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- luti0n shall take effect immediately upon its passage. PASSED AND ADOPTED the 12 (SEAL) day of Septe..mber , 1995. BOAR~OF COUNTY COMMISSIONERS INDIAN RIVER COU~Y, FLDRIDA ~hai~an ~[NNETH' R. MACHI -, ,' '~'~ IC',~NCY, A!;~ L E,,: AL ~:-r C,harles P, Vitunao County Attorney 7 City of Sebastian 1225 MAIN STREET [] SEBASTIAN, FLORIDA 32958 TELEPHONE (407) 589-5330 [] FAX (407) 589-5570 CERTIFICATION .:Es.is to certify that this is a tree and correct copy of Ordinance No. O-95-25, the, Sebastian City Council at its September 27, 1995 Regular Meeting. CMC/AAE APPENDIX ORDI]~CE NO. 95- ,<~ AN ORDINANCE OF THE CITY OF SEBASTIAN, FLORIDA, CONSENTING TO THE IMPOSITION OF SPECIAL ASSESSMENTS ~ND OR T~E INCLUSION OF ALL OF iTS INCORPORATED AREAS WITHIN ONE OR MOP~E MUNICIFAL SERVICE BENEFIT UNITS C~EATED EY INDIAN RIVER COUNTY TO PROVIDE ~ATER OR WASTEWATER FACILITIES, SERVICES OR PROGRAMS; PROVIDING FOR SEVERABILITY; AND PROVIDING AN EFFECTIVE DATE. NOW, THEI~EFOI~E, 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 par~ 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. facilities and programs is in the of property within the corporate CONSENT OF THE CITY OF SEBABTIAN. 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. SEV~RABILITY. 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 CITY COUNCIL OF THE Mayor ATTEST Clerk C-3 CERTIFICATE REAFFIRMING REPRESENTATIONS WHEREAS, Indian RiveT'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 ~te~}~al agreemept Providing for the Transfer and assum ' ~e cx~y ~f Sebastian Water and Wastewater S"st ...... ~P~_of or .~.~~._~.~a~) , 1995 (the "Interloca~ ~-Lm~Au~-~,~.~~ ~ day ~E~AS, Secti~ 5 02 of the Int · erlocal Agreement provides that each p~rty deliver a c~rtificate to the other reaffi ' representations and warrant~es therein. ~ng the 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 (SEAL) ATTEST: 2. 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 W~~ WHEREOF, ~~ecuted this certificate as of this ~ day of .-~ ~ , 1995. THE CITY OF SEBASTIAN, FLORIDA Mayor KATHRYN M. O' HALLORAN, City Clerk '~ ~erk APPENDIX "D" D-1 CERTIFICATE RE~I, FFI"R~I~N~ 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 ..4~9 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, THEREFORE, to comply with Section 5.02 of the Interlocal Agreement, the County does hereby certify to the City the following-. 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 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 Coun.tyhas executed this certificate as of this ~ .C day of ... ~-~~J"~'~--~ , 1995· BOARD OF COUNTY COMMISSIONERS OF INDIAN RIVER COUNTY, FLORIDA / ' / .... ":;~'~."-: ·-t:~. (,' ~ ~i~an ~KEN~TR R. MAC~ JEFF~Y ~K;;~. B~ ~.e;~"' o f the Circuit"-C6~ ~aJi~ ' ":'~:'~'Xficio Clerk · ~ ~ % ~ . . , .%.~ , · of the Boar~...gf.~"~~ Co~lssloners of Indian Rive'r::~,ounty, Florida ......... Deputy Clerk ~ ~ APPROVED AS TO FORM AND LEGAL SUFFICIENCY: Ch~,,~l~s P. Vi~unac County Attorney This instrument prepared by or under the supervision of: Name: Ckifton A~ McCteLkand, Jr., Esq. Potter, NcC[el[and, Marks & Hea[y, P.A. Address: 700 S. Babcock Street, Suite 400 Me[bourne, FL ]2901' DEED THIS DEED, made this c~'7 day of September, 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 ($10.00) to it in hand paid bY the party of the second part, receipt whereof is hereby acknowledged, has granted, bargained and sold to the party of the second part, the following described land lying and being in Indian River County, Florida: See Exhibit "A" attached hereto and by this reference made a part hereof. Taxes and assessments for the year 1995 and subsequent years· All laws, ordinances and governmental regulations, including, but not limited to, all applicable building, zoning, land use and environmental ordinances, regulations, restrictions, prohibitions and other requirements, none of which will prevent or hinder the present use of the Property. Restrictions and easements for utilities and drainage set out in recorded plats of subdivisions. Restrictions of record. Se All matters which would be disclosed by an accurate survey of the Property. D-3 IN WITNESS WHEREOF the said party of the first part has caused these presents to be executed in its name by its City Council .acting by the Mayor of said Council, the day and year aforesaid. Printed Name of Witness Witness Printed Name of Witness Printed Name of Witness Witness Printed Name of Witness STATE OF FLORIDA § COUNTY OF INDIAN RIVER § CITY OF SEBASTIAN, FLORIDA, a Municipal corporation, by its City Council Arthur L. Firtion, Mayor (OFFICIAL SEAL) ATTEST: Kathryn~ M · O,H~liOra~, c'~C/AAE APPROVED AS TO FORM AND. LEGAL SUFFICIENCY: Cha~'16$ P. Vilunac, COunly Allome,/ The foregoing Deed was sworn to and subscribed before me this .~ day of September, 1995 by Arthur L. Firtion, Mayor of the City of Sebastian and Kathryn M. O'Halloran, CMC/AAE, on behalf of the city. Arthur L. Firtion and Kathryn M. O'Halloran are personally known to me ~a~~ced- -as-~d. en~f~~o~.~d-.~a~e__an, oath. Notary Public, State of Florida At Large My Commission Expires: Commission No.: ~'~. IO~-] I~Z/ D-4 ..,'~ '~-., OFFICIAL SEAL ~'~,' Comm. Ho. CC 194154 PARCEL !: Ail c.f Tract "D" as shewn on the plat of SEBASTIAN HIGHLANDS UNIT-17, as recorded in Plat Bock. 8, Page 46, Public Records of Indian River county, Florida. PARCEL-II:... A parcel of land located in the Northeast 1/4 of the Northeast - LESS the East 20 acres thereof and a portion of the southeast ".1/4 of the Northeast. 1/4 of Section 18, Township 31 South, Range :- 39 East, Indian River county, Florida, and helms more '"particularly. described as follo~s~ Begin at the Northeast corner of said section lS, Township 31 __South, Range 39 East; thence South S9"12'36" ~est, along the North line of the.said Northeast 1/4 of Section ls, a distance of 657.45 feet to the ~orthwest corner of the said East-20 acres of the Northeast 1/4 of the Northeast 1/4; thence South 00e0i'24~ West, along the West llne of the sai~ East 20 acres, a distance of 1325.55 feet, to a point in the South line of the sai~ Northeast 1/4 of the Northeast !/4; said point also being %he Northwest corner of sebastian Highlands Unit 9, as recorded in Plat Book 6, ~age 36A, ~ubli¢ Records of In~ian River County, ~lor~da; thence continue along the boun~r~ of said plat of Sebastian Highlands Unit 9, %he following ¢ourses and distances: thence continue so~th 00~01'24~ wes%, a distance of 130.~6 fee% to a poin= in a curve concave to the Southwest having a radius 6f 435.64 feet, the chord of ~ch bears North 85~20'21''west; thence Westerly .along the arc of said curve, a distance of ?0.30 feet, through a central angle of 09e14'48~, departing sa~ platte~ boundary; then¢e North 00.01'24~ East, a distance of 54.1! feet; ~heuce south $9~19,02'~ west, a d~stance of 71.5 feet more or less, to the Easterly waters e~ge of Schumann Lake; thence Northwesterly, westerly, Southerly, southeasterly, Southwesterly, westerly and Southgrly meander the waters edg~..of Schumann Lak~, a distance of 1847 feet, more or less, to the o South line of the said.southeast 1/4 of the Northeast 1/4; : thence South s9"1~'27" West, along the south line of the said Southeast 1/4 of the ~ortheast 1/4, a distance cf 97.9 feet, more or less, to the Southwest corner of %he said Southeast 1/4 of the Northeast 1/4; thence ~orth 00onl,25,, West, along the West lin~ of the sa~d East 1/2 of the Northeast 1/4,' a distance of 2652.47 feet to t~e aforesaid North llne of the Northeast 1/4; thence North 89'22'36'* East along the said North line, a ~!stanc~ of 673.15 feet to the Point of Beginning. PARCEL III: The East 200. feet ow. Tract "A", SEBASTIkN HIGHLANDS, UNIT 9, according to the plat thereof, recorded in Plat ~ook 6, Page 36 and 36A, Pub!~c Records of Indian River County, Florida. D-5 [his instrument prepared by or under the supervision of: Name: C[Jfton A. NcC&e[~and, Jr., Esq. Potter, HcC[e[kancl, Harks & Heaky, P.A. Address: 700 S. Babcock Street, Suite 400 Hekbourne, FL 32901 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 September 20, 1995, is made and executed this j~ day of .~~~ , 1995 by City of Sebastian, a municipal corporatio~ 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, Vero Beach, Florida 329.60, hereinafter called the buyer; WITNESSETH: That the seller, for and in consideration of the sum orS10.00 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 September 20, 1995 between the buyer and seller and the obligations, duties and liabilities assumed by the buyer thereunder. TO HAVE AND TO HOLD, the same in fee simple forever. COUI",'TY /.i'FrORUEY'S OFFICE II'-;DI,:,I'.! RIVER COUNTY I,~40 25ih Sfre~t Vero b~a:l,, Florida S29b0 D-6 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. Printed Name of Witness Witness Printed Name of Witness CITY OF SEBASTIAN, FLORIDA, a Municipal corporation, by its City Council By: A~thur L. Firtion, Mayor (OFFICIAL SEAL) Printed Name of Witness Witness Printed Name of Witness STATE OF FLORIDA § COUNTY OF INDIAN RIVER § ATTEST: Kathryn/M. O'Halloran, CMC/AAk APPf~,:.)vi!'D AS TO O;LL' Cl~a~'les P. Vitu,',ac 6oualy Ailorne,¥ The foregoing Bill of Sale was sworn to and subscribed before me this ~.~'7~ day of September, 1995 by Arthur L. Firtion, Mayor of the City of Sebastian and Kathryn M. O'Halloran, CMC/AAE, on behalf of the City. Arthur L. Firtion and Kathryn M. O'Halloran are personally known to me Printed Name i Notary Public, State of Florida At ~rge My Co~mission Expires: Co~ission No.: (~C, /Q~ /~ My Commission Expires May 15, 1996 · ,,~,~,,- Comm. No. CC 1941,54 D-7 EXHIBIT A TO BILL OF SALE FROM CITY OF SEBASTIAN, FLORIDA TO INDIAN RIVER COUNTY, FLORIDA All of the City of SebaStian~s water production, treatment plants, storage treatment, transmission, distribution, pumping and other water facilities, including without limitation, water wells and fire hydrants, 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 connections, and all other water and wastewater physical facilities, together with all machinery, and equipment used in the course of the day-to-day operations of the City of Sebastian Water and Sewer System. D-8 C) SERVICE 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 Citrus Utilities, _Inq~ .... v. General Development Utilities, Inc. and ci%y...gf Sebastian; Case Number 94-0202-CA-03 filed in the Circuit Court of Indian River County, Florida. F-1 A~REEMENT W'rTH AGREEMENT 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 Septe~%ber 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 F-2 This instr~anent prepared by on under the supervision of: Name: Clifton A. #cC[el[and, Jr., Esq. Potter, #cCLeliancI, Harks & Heaiy, P.A. Address: 700 S. Babcock Street, Suite ~00 #etbourne, FL 32901 PARCEL I.D. NO.. TAXPAYER I.D. NO. GI~tlqT OF E~SEHENT 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 sum 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: PrJnt~ Na~: Title: Witness Print~ Na~: G-1 (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.: