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Home My WebLink AboutR-91-31 REASSIGN GDU W&S FRANCH TO CITY . . RESOLUTION NO. R-91-31 A RESOLUTION OF THE CITY OF SEBASTIAN, INDIAN RIVER COUNTY, FLORIDA; AUTHORIZING THE MAYOR AND THE CITY CLERK TO ENTER INTO AN AGREEMENT, ON BEHALF OF THE CITY, TO TERMINATE THAT CERTAIN ASSIGNMENT DATED DECEMBER 12, 1990, WITH INDIAN RIVER COUNTY, FLORIDA, A COPY OF THE TERMINATION AGREEMENT BEING ATTACHED TO THIS RESOLUTION AS EXHIBIT "A", WHEREBY THE COUNTY IS RETRANSFERRING TO THE CITY ALL OF THE COUNTY'S RIGHT, TITLE AND INTEREST RECEIVED UNDER THE ASSIGNMENT IN THE WATER FRANCHISE GRANTED TO GENERAL DEVELOPMENT UTILITIES, INC. BY THE CITY IN ORDINANCE NO. 0-81-8, AND IN THE SEWER FRANCHISE GRANTED TO GENERAL DEVELOPMENT UTILITIES, INC. BY THE CITY IN ORDINANCE NO. 0-81-9; PROVIDING FOR REPEAL OF RESOLUTIONS OR PARTS OF RESOLUTIONS IN CONFLICT HEREWITH; PROVIDING FOR SEVERABILITY; AND PROVIDING FOR AN EFFECTIVE DATE. Whereas, the City of Sebastian, Indian River County, Florida, granted to Indian River County, Florida (the "County"), an exclusive franchise to furnish water and sewer service to the entire area within the incorporated limits of the City, including those areas in which the City had previously granted franchises; Whereas, under the Franchise, the County's franchise territory included those areas in which the City of Sebastian had previously granted franchises shoUld any such prior franchise expire, revert, be forfeited, canceled or otherwise come under the control of the City; Whereas, water and sewer franchises were in existence between the City and General Development Utilities, Inc. ("GDU"), granted by Ordinance No. 0-81-8 and Ordinance No. 0-81-9, respectively (collectively the "GDU Franchises"); . . Whereas, the GDU Franchises contain provisions granting to the City the right to purchase all of the facilities, together with easements, owned and used by GDU to provide services under the GDU Franchises; and Whereas, by Resolution R-90-55, the City authorized the Mayor and the City Clerk to enter into and execute an Assignment whereby the City would assign to the County all of the City's right, title and interest in the GDU Franchises, with the exception of the City's right to receive franchise revenues and to regulate rates, fees, and charges under the GDU Franchises; and Whereas, on December 12, 1990, the City and the County entered into an Assignment whereby the City granted and the County accepted all of the City's right, title and interest granted to GDU under the GDU Franchises, with the exception of the City's right, to receive revenues and to regulate rates, fees, and charges under the GDU Franchises (the "Assignment"). Whereas, the City now desires to regain all rights under the GDU Franchises and the County desires to reassign to the City all of the rights acquired under the Assignment. Whereas, the City Council of the City of Sebastian has reviewed the proposed Termination of Assignment Agreement, a copy of which is attached hereto as Exhibit "A" and incorporated herein by this reference, and after engaging in deliberations, has determined that it would be in the best interest of the City and its citizens, and in furtherance of a valid municipal purpose for the City to reacquire from the County all of the City's rights under the GDU Franchises. . . . . NOW, THEREFORE, be it resolved by the City Counci 1 of the City of Sebastian, Indian River County, Florida, that: SECTION 1. TERMINATION OF AGREEMENT. Subj ect to approval by Indian River County and execution by it of the attached Termination Agreement, that certain Assignment Agreement entered into by the Mayor and the City Clerk of the City of Sebastian, Indian River County, Florida, with Indian River County, Florida, on December 12, 1990, is hereby terminated, void, and of no further force and effect. SECTION 2. AUTHORIZATION OF AGREEMENT. The Mayor and the City Clerk are hereby authorized to enter into with Indian River County, Florida, and execute on behalf of the City a Termination Agreement, whereby the County would reassign all rights acquired under the Assignment to the City. SECTION 3. CONFLICT. Upon execution of the attached Termination Agreement, Resolution R-90-55 shall be deemed repealed as well as any resolutions in conflict herewith. 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 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. . . . . SECTION 5. EFFECTIVE DATE. This Resolution shall take effect immediately upon its adoption. The foregoing Resolution was moved for adoption by Councilman __f~~~L____ . '~I/ / / }:::'-L>!.--(-t'I R V follows: The motion was seconded by Councilman and, upon being put into a vote, the vote was as Mayor W.E. Vice-Mayor Councilman Councilman Councilman Conyers Frank Oberbeck Peter R. HOlyk Lonnie R. Powell George H. Reid 4141' a~/ (; ,,e..- -4~"4~_L ~y-[~ duly passed and The Mayor thereupon declared this Resolution adopted this ,;?S-r:t day of August, 1991. ~TEJT: ,--Kadt( -/177 0 ~ M t7 Kathry M. O'Halloran, CMC/AAE City Clerk CITY OF SEBASTIAN, FLORIDA By' ke- ~ - W.E. Conye ,Mayor (SEAL) Form and Content: Char eS Ian Nash City Attorney ------.... '. . . . ~./ -.:;".~. TERMINATION AGREEMENT This TERMINATION AGREEMENT, is made this d%~ day of _~2~~~~~~__, 1991, by and between THE CITY OF SEBASTIAN, a '" municipal corporation of the State of Florida, whose address is City Hall, Sebastian, Florida 32958 (the "City"), and INDIAN RIVER COUNTY, a political subdivision of the state of Florida, whose address is 1840 25th street, Vero Beach, Florida 32960 (the "County") . RECITALS 1. The City granted a water franchise to General Development Utilities, Inc. ("GDU") in City Ordinance No. 0-81-8 and granted a sewer franchise to GDU in City Ordinance No. 0-81-9 (collectively the "GDU Franchises") to allow GDU to operate and maintain a water distribution and a sewage collection and disposal system within a portion of the City. 2. On December 12, 1990, the City and County entered into and executed an Assignment (the "Assignment"), a copy of which is attached hereto as Exhibit "A", whereby the City transferred to the County, and the County accepted, all of the City's right, ti tIe and interest in the GDU Franchises, except the right to receive any and all franchise revenues and fees owed under the GDU Franchises, and to regulate rates and charges being charged and collected pursuant to the GDU Franchises. 3. The County now desires to reassign to the City, and the City desires to reacquire, all of the County's right, title and interest in the GDU Franchises. ACCORDINGLY, in consideration of the mutual promises, covenants and agreements set forth herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: SECTION 1. REASSIGNMENT; TERMINATION. The County hereby transfers to~he City all of the County's right, title and interest in the GDU Franchises which was acquired by the County under the Assignment. The Assignment is hereby terminated, void, and of no further force and effect. ......'" ._-.~" , . . SECTION 2. ACCEPTANCE. The City hereby accepts the reassignment by the County of all of the County's right, title and interest in the GDU Franchises which was acquired by the County under the Assignment. SECTION 3. ATTORNEY'S FEES. In any action brought to enforce the terms and provisions of this agreement, the prevailing party shall be entitled to recover reasonable attorney's fees and costs incurred, including all such attorney's fees and costs incurred at all trial and appellate court proceedings as well as fees incurred in pursuit of settlement of such actions. SECTION 4. BINDING EFFECT. condi tions of this agreement shall be hereto and their successors in interest All of the terms and binding upon the parties and assignees hereof. SECTION 5. ENTIRE AGREEMENT. This Agreement constitutes the entire Agreement between the parties and supersedes all previous discussions, understandings, and agreements between the parties relating to the subject matter of this Agreement. IN WITNESS WHEREOF, the parties hereto have set their hands and seals the day and year first above written. Attest:" CITY OF SEBASTIAN, FLORIDA /~ By: fUZ c~ W.E. Conyer, Mayor (SEAL) Approved aarto form and contefit: / ~ Ian Nash, City Attorney INDIAN RIVER COUNTY, FLORIDA Attest: , Clerk By: Richard N. Bird, Chairman (SEAL)