HomeMy WebLinkAboutR-92-23
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RESOLUTION NO. R-92-23
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF SEBASTIAN, FLORIDA, INDIAN RIVER COUNTY,
REPEALING RESOLUTION NOS. R-87-6, R-87-7, AND
R-90-55; REPEALING THE INDIAN RIVER COUNTY
WATER ANP SEWER FRANCHISE; PROVIDING FOR THE
APPROVAL OF AN INTERLOCAL UTILITIES AGREEMENT
BETWEEN INDIAN RIVER COUNTY, FLORIDA AND THE
CITY OF SEBASTIAN, FLORIDA; PROVIDING FOR
REPEAL OF RESOLUTIONS OR PARTS OF RESOLUTIONS
IN CONFLICT HEREWITH; PROVIDING FOR
SEVERABILITY; AND PROVIDING FOR AN EFFECTIVE
DATE.
WHEREAS, beginning in 1986, Indian River County and the City
of Sebastian held discussions and meetings regarding the County's
desire to provide water and wastewater service within the City of
Sebastian; and
WHEREAS, at two hearings held by the Sebastian city Council
on January 7 and January 14, 1987, the City of Sebastian (the
"City") adopted a series of documents which granted certain
franchise and service rights to Indian River County within the City
of Sebastian; and
WHEREAS, the city adopted Resolution Nos. R-87-6 and R-87-7
which had the effect of granting a franchise to Indian River County
before the entire area within the incorporated limits of the city
(excluding previously granted franchised areas) and which approved
the form and substance of an Intergovernmental Agreement; and
WHEREAS, the city adopted Resolution No. R-90-55 and executed
an Assignment Agreement dated December 12, 1990, in which the City
agreed to transfer to Indian River County (the "County") all of the
City's right, title and interest in the water and wastewater
franchises granted to General Development utilities, Inc.; and
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WHEREAS, the city on or about February 27, 1991, determined
that it would be in the city's best interest to consider revocation
or cancellation of the franchise given to Indian River county and
perhaps provide its own water and wastewater service; and
WHEREAS, on March 5, 1991, Indian River County unanimously
agreed to relinquish its franchise rights within the City; and
WHEREAS, on March 13, 1991, the Indian River County sent a
letter to the City of Sebastian offering to relinquish its
franchise rights; and
WHEREAS, on March 27, 1991, the City hired a utility
consultant to prepare a feasibility study concerning whether the
City should provide its own water and wastewater system; and
WHEREAS, on April 5, 1991, the city of Sebastian conditionally
accepted Indian River County's offer subject to completion of the
necessary documents containing terms and conditions acceptable to
both parties so that agreements, ordinances, and resolutions may
be rescinded in such a manner as do not impact third parties; and
WHEREAS, the feasibility study prepared by the city's
consultants was presented to the city on June 26, 1991, and
recommended that the city proceed with its own utility service; and
WHEREAS, the City and the County have this day approved an
Interlocal utilities Agreement between Indian River County,
Florida, and the City of Sebastian, Florida, which provides for the
revocation of the County's franchise rights within the City of
Sebastian and other terms and conditions.
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NOW, THEREFORE, BE IT RESOLVED by the City Council of the city
of Sebastian, Indian River County, Florida, that:
section 1.
ReDeal and Termination of Indian River County
Franchise.
The City hereby repeals, revokes, and terminates
Resolutions Nos. R-87-6, R-87-7, and R-90-55, together with that
Intergovernmental Agreement by and between the city and Indian
River County entered into February 3, 1987, and the Assignment
Agreement dated December 12, 1990 between the city of Sebastian and
Indian River County.
section 2. Aqreement. The Mayor and the city Clerk of the
city of Sebastian, Indian River County, Florida, are hereby
authorized to sign, on behalf of the city, the Interlocal utilities
Agreement between Indian River County, Florida, and city of
Sebastian, Florida, a copy of which is attached to this Resolution
as Exhibit "A" and incorporated herein by this reference.
Section 3. Conflict. All Resolutions or parts of Resolutions
in conflict herewith are hereby repealed.
section 4. Severability. In the event a court of competent
jurisdiction shall hold or determine that any part of this
Resolution is invalid or unconstitutional, the remainder of the
Resolution shall not be affected and it shall be presumed that the
city Council of the City of Sebastian did not intend to enact such
invalid or unconstitutional provision. It shall further be assumed
that the City Council would have enacted the remainder of this
Resolution without such invalid and unconstitutional provision,
thereby causing said remainder to remain in full force and effect.
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section S. Effect Date. This Resolution shall take effect
immediately upon its adoption.
The foregoing Resolution was moved
Councilmember OkL~
seconded by Councilmember ~~
put to a vote, the vote was as follows:
for adoption by
The motion was
and, upon being
Mayor Lonnie R. Powell
Vice-Mayor Frank Oberbeck
Councilmember Carolyn Corum
Councilmember Peter R. Holyk
Councilmember George G. Reid
The Mayor thereupon
adopted this d;zu! day of
declared this
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Resolution duly passed and
, 1992.
ATTF"ST:
CMCjAAE
(SEAL)
s to Form and Content:
city Attorney
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INTERLOCAL UTILITIES AGREEMENT
BETWEEN
INDIAN RIVER COUNTY, FLORIDA
AND
CITY OF SEBASTIAN, FLORIDA
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INTERLOCAL UTILITIES AGREEMENT
BETWEEN
INDIAN RIVER COUNTY, FLORIDA
AND
CITY OF SEBASTIAN, FLORIDA
.
THIS AGREEMENT, made this <2..L day of ~. , 1991L, by
and between
INDIAN RIVER COUNTY, a political subdivision
of the State of Florida, the address of which
is 1840 25th Street, Vero Beach, Florida
32960 (hereafter COUNTY)
and the
CITY OF SEBASTIAN, a municipal corporation of
the State of Florida, the address of which is
Post Office Box 127, Sebastian, Florida 32978
(hereafter CITY), and its successors and/or
assigns,
WIT N E SSE T H:
That for and in consideration of the premises and other good
and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the COUNTY and the CITY agree as follows:
PRELIMINARY FINDINGS
1. AGREED FACTS. The following are true statements:
1.1. The CITY granted a water franchise to General
Development Utilities, Inc. (GDU) in CITY Ordinance 0-81-8 and
granted a sewer franchise to GDU in CITY Ordinance 0-81-9 (col-
lectively the GDU franchises) to allow GDU to operate and main-
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tain a water distribution and a wastewater collection and dis-
posal system within a portion of the CITY.
1.2. On January 14, 1987, by CITY Resolution R-87-6,
the CITY gave the COUNTY a 30-year exclusive franchise for the
provision of water and wastewater services within the rest of the
City.
1.3. An interlocal agreement entered into between the
CITY and COUNTY and effective February 3, 1987, required the CITY
to assist the COUNTY in assessing property owners for the
construction of collection systems in the City limits.
1.4. At construction financing for a wastewater plant
and main lines, the COUNTY issued revenue bonds in the amount of
$6,075,000 on October 15, 1989. Part of the security for the re-
payment of these bonds was the revenue from impact fee assess-
ments for reserved connections within the City.
1.5. The COUNTY has constructed a wastewater treatment
plant, major collection lines, and certain force mains from the
plant through the unincorporated area into the City and beyond
and was ready to provide service for CITY customers on or about
March 5, 1991.
1.6. Approximately 303 CITY equivalent residential
units (including those in Park Place) are now receiving
wastewater service from these facilities.
1.7. On December 12, 1990, the CITY and COUNTY entered
into and executed an assignment whereby the CITY transferred to
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the COUNTY, and the COUNTY accepted, all of the CITY's right,
title, and interest in the GDU franchises, except the right to
receive any and all franchise revenues and fees owed under the
GDU franchises, and except the right to regulate rates and
charges being charged and collected pursuant to the GDU fran-
chises.
1.8. The CITY on or about February 27, 1991, deter-
mined that it would be in the CITY's best interest to consider a
revocation or cancellation of the franchise given to the COUNTY
in paragraph 1.2 and perhaps provide its own water and wastewater
service.
1.9. On March 5, 1991, the COUNTY unanimously agreed
to relinquish its franchise rights within the CITY if that was
what the CITY wished.
1.10. On March 13, 1991, the COUNTY sent a letter to
the CITY offering to relinquish its franchise rights.
1.11. On AprilS, 1991, the CITY conditionally
accepted the COUNTY's offer, subject to completion of the neces-
sary documents containing terms and conditions acceptable to both
parties so that agreements, ordinances, and resolutions may be
rescinded in such a manner as to not impact third parties.
1.12. On March 27, 1991, the CITY hired a utility con-
sultant to prepare a feasibility study concerning whether the
CITY should provide its own water and wastewater systems.
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1.13. The feasibility study prepared by the CITY's
consultants was presented to the CITY on June 26, 1991, and
recommended that the CITY go ahead with its own utility service.
1.14. Based on the announced intention of the CITY to
develop its own utility systems, on or about August 6, 1991,
COUNTY cancelled plans for expanding the COUNTY's North County
Wastewater Treatment Plant.
1.15. The CITY is taking the necessary steps to regain
all of its rights under the GDU franchises in order to
potentially acquire GDU's water and wastewater systems to enable
the CITY to develop a City-wide water and wastewater utility.
Modification of the COUNTY's franchise is also a necessary
prerequisite to the CITY's development of its own water and
wastewater system.
1.16. The COUNTY has agreed to cooperate with the CITY
as long as the interests of the COUNTY utility system, the bond
holders, and the CITY customers who have reserved capacity in the
system are all protected.
1.17. The COUNTY and CITY staff members have met on
several occasions to work out interim plans to effect the separa-
tion of the utility systems and have recommended the provisions
of this agreement as an acceptable way to satisfy the concerns of
all parties.
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EXISTING AGREEMENTS
2. CANCELLATION OF COUNTY FRANCHISE. Effective May 1,
1992 (the "Cancellation Date"), the parties hereby agree to and
do cancel the existing franchise and all of the rights granted to
the COUNTY by the CITY under CITY Resolutions R-87-6 and R-87-7,
and under the Intergovernmental Agreement between the CITY and
the COUNTY which was effective February 3, 1987.
3. CONTINUANCE OF PRESENT SERVICE. Up to and until the
Cancellation Date, the COUNTY will allow available permanent
capacity of the COUNTY system to be purchased by customers within
the City limits pursuant to the terms of the existing franchise.
On and after that date the COUNTY will sell available permanent
capacity for connections within the City only to the CITY itself,
which may in turn make this capacity available to customers
within the City.
4. REASSIGNMENT OF RIGHTS TO PURCHASE GDU FACILITIES. The
assignment by the CITY to the COUNTY by CITY Resolution R-90-55
of all right, title, and interest in GDU's franchises given in
CITY Ordinances 0-81-8 and 0-81-9 are hereby reassigned to the
CITY effective the date of this agreement. That Agreement
between the CITY and COUNTY entered into on December 12, 1990, is
hereby terminated. The parties agree that one of the effects of
this termination and reassignment is, among other things, to
allow the CITY to exercise its option to purchase the GDU
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facilities and provide water and wastewater service in the
territory covered by the GDU franchises.
5. OTHER AGREEMENTS. During the term of the COUNTY's
franchise in the CITY an agreement was entered into with Park
Place which created rights and obligations in the County. This
agreement and all exhibits thereto is attached to and
incorporated in this Agreement as Exhibit "A." The COUNTY
assigns and the CITY assumes all COUNTY's rights, duties, and
obligations under this agreement effective upon the Cancellation
Date. The COUNTY agrees that the CITY's and its customers'
obligation to pay impact fees under this agreement attached as
Exhibit "A" shall be the same as the Seller under this Agreement.
The COUNTY agrees to assist the CITY in any litigation with
respect to the agreement attached as Exhibit "A."
NEW UTILITY AGREEMENTS
6. DEFINITIONS.
6.1. Class I Units - Units in the CITY which are
connected to or which have reserved capacity in the COUNTY waste-
water system before the Cancellation Date and which have a
collection system available to them, even if the physical
connection to the unit has not been made.
6.2. Class II Units - Units within the CITY which have
reserved capacity in the COUNTY wastewater system before the
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Cancellation Date but which do not have a collection system
available.
6.3. Class III Units - Units within the CITY other
than Class I and II Units.
6.4. Treatment - The treatment, transmission, and
related effluent disposal of wastewater.
6.5. Utilitv Service - shall be used to include rate
setting, customer connections, meter installation, meter reading,
billing, bill collection, customer relations, customer com-
plaints, collection system construction, related repair work, and
all other necessary, customary, and convenient activities per-
formed by a utility company other than the treatment of waste-
water. Utility service shall not include repair and maintenance
of the COUNTY's lines, force mains, or pump stations shown on
Exhibit "B", as amended from time to time. These shall be the
responsibility of the COUNTY.
7 . SERVICE AGREEMENT.
7.1. Effective on the Cancellation Date but except as
modified by paragraph 7.5 hereof, the COUNTY will cease to be the
utility service provider within the City and will become instead
only the treatment, transmission, and effluent disposal
(hereinafter "treatment") provider for all wastewater generated
for all Class I and II Units and for the number of Class III
Units for which the CITY has purchased or does purchase permanent
capacity in a COUNTY wastewater treatment plant.
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7.2. Effective on the Cancellation Date the CITY shall
become the utility service provider for all classes of customers
within the City limits and shall, as part of this duty, provide
collection systems for Class II customers in a manner such that
the interests of the Class II customers will not have been harmed
by the revocation of the COUNTY franchise. The COUNTY agrees to
develop a nondiscriminatory, cost-of-service rate to be charged
to the CITY for treatment of the wastewater which rate shall take
into account the fact that the CITY is the utility service
provider for all classes of units within the CITY. The rate and
components which make up this rate are depicted in Exhibit "C"
attached to and incorporated in this Agreement. The CITY
reserves the right to become a wastewater treatment provider also
for any or all units within the CITY subject only to the rights
of the COUNTY as described in paragraph 8.
7.3. Upon installation and acceptance, the metering
equipment shall become the property of the COUNTY, but the CITY
shall be responsible for the operation, maintenance, and replace-
ment of the meter. The COUNTY shall read the meter for billing
purposes. The metering equipment shall meet the standards of the
American Water Works Association ("AWWA") for accuracy, which is
plus or minus three percent (3%). The CITY may request an
accuracy test by the provider without charge once during any
twelve (12) month period. The CITY may witness the test.
Additional testing may be requested by the purchaser at the
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COUNTY's established cost for such tests. Copies of the test
results will be provided to the purchaser within thirty (30) days
of the test. There will be no charge for tests that discover an
inaccurate meter. If an inaccurate meter is found, as defined by
the AWWA, bill adjustments will be made for one-half (1/2) of the
preceding period since the last accuracy test. In any event, the
CITY shall continue to pay bills, whether disputed or not, until
any dispute is resolved. Following the period set forth in
paragraph 7.5 hereof, the requirement for the CITY to install a
sewer meter at a COUNTY pumping station shall not arise at said
pumping station until the CITY expands a gravity collection
system to be connected to that pumping station of adequate size
to warrant installation of an appropriately sized sewer meter to
be mutually agreed upon by the CITY and COUNTY based upon
industry standards and engineering standards. Until any such
installation, billing for sewage flows through that pump station
shall be based upon metered water consumption of each individual
customer.
7.4. As a bulk customer of the COUNTY wastewater
system, CITY understands that it will have to comply with COUNTY
policies on the quality of wastewater put into the COUNTY system
and other customer reasonable, technical standards adopted by the
COUNTY countywide.
7.5. COUNTY shall provide any of the services included
within the term "Utility Service," which it can legally perform,
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on behalf of the CITY, for up to one (1) year from the
Cancellation Date. The costs for the services to be charged by
COUNTY to CITY will be the COUNTY's retail rates. The CITY shall
have the option of earlier terminating this arrangement and
assuming responsibility for utility services at any time during
the one (1) year period by sending written notice to the COUNTY
giving the COUNTY thirty (30) days' advance notice. Upon
termination of the COUNTY's provision of utility services
hereunder or the end of the one (1) year period, whichever first
occurs, the COUNTY shall not charge said retail rates, but rather
shall charge the bulk rates referred to in Exhibit "C" hereof.
8. TRANSFER OF UNITS. The COUNTY agrees that on the
request of the CITY it will transfer to the CITY for treatment
purposes also Class I and Class II Units and any Class III Units
for which permanent capacity has been bought, whenever the COUNTY
has a COUNTY customer available to purchase the capacity used or
reserved by the units which are requested to be transferred. The
COUNTY will use good faith efforts to procure a replacement cus-
tomer for the capacity, and, upon receipt by the COUNTY of the
COUNTY impact fee current at that time from the new customer, the
COUNTY shall remit to the CITY the impact fee originally paid by
the customer who is to be transferred to the CITY. This sum of
money may be used by the CITY to finance the City operated
replacement capacity needed to provide wastewater treatment for
that transferred unit. Units so transferred shall not be charged
an additional capacity impact fee by the CITY.
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9. TRANSFER OF COLLECTION SYSTEMS. The COUNTY and the
CITY both acknowledge that certain collection systems may be dis-
connected from the COUNTY system entirely, transferred to the
CITY without charge for the collection facilities, and
reconnected to a new CITY system, said reconnect ion to be at
CITY's expense, when all units on the system to be reconnected
are City customers, either by transfer or otherwise. The COUNTY
will cooperate in making these transfers.
10. CITY PURCHASE OF CAPACITY IN COUNTY PLANT. COUNTY
agrees to sell capacity to the CITY under standard COUNTY poli-
cies and rates. The present COUNTY policy is to expand waste-
water treatment plant facilities when financially and technologi-
cally feasible, and when consistent with the Utility Master Plan,
provided that reservations are committed which will fund the
expansion. Part of the reservation includes the requirement to
pay the COUNTY monthly base facility charges.
11. DISCLAIMER OF THIRD PARTY BENEFICIARIES. This agree-
ment is solely for the benefit of the formal parties herein and
no right or cause of action shall accrue upon or by reason
hereof, to or for the benefit of any third party not a formal
party hereto. Nothing in this agreement expressed or implied is
intended or shall be construed to confer upon or give any person
or corporation other than the parties hereto any right, remedy,
or claim under or by reason of this agreement or any provisions
or conditions hereof; and all of the provisions, representations,
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covenants, and conditions herein contained shall inure to the
sole benefit of and shall be binding upon the parties hereto and
their respective representatives, successors, and assigns.
12. DELINOUENT FEES. CHARGES. AND ASSESSMENTS. With
respect to customers who have previously purchased capacity from
the COUNTY but have not yet connected (Class II customers), the
CITY is not required to guarantee or make payment of COUNTY
impact fees, base facility charges or assessments in lieu of
impact fees due but not yet paid by the customer. However, if
the said customer does not pay any such assessments, fees and
charges, the COUNTY may keep any impact fees, charges or
assessments paid and the individual customer cannot receive
service from either the CITY or the COUNTY unless all delinquent
assessments, fees, and charges are paid to the COUNTY. Under
these circumstances, the CITY shall be able to charge an
additional impact fee charges, and assessments to the customer
but shall not provide service until all delinquent fees,
assessments, and charges are paid by said customer to the COUNTY.
13. TERM OF AGREEMENT. The agreement shall be in effect
for 30 years. The termination of agreements, resolutions, and
ordinances specified in paragraphs 2 and 4 hereof shall not be
affected by termination of this Agreement.
IN WITNESS WHEREOF, COUNTY and CITY have entered into this
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agreement on the date first above written.
Attest:
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Attest:
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INDIAN RIVER COUNTY, FLORIDA
BOARD OF COUNTY COMMISSIONERS
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By: .~ l., i-b.
~I-V"-'. ,~t!j- . airman
Attachments: Exhibits "A," "B," and "C"
77/29:318/5
Approved as to Form
and Conte t:
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Ian Nash, City Attorney
lndi.m AiV1!f CD. AfJ{)rOved
Admin.
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