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HomeMy WebLinkAboutR-92-23 REPEAL IRC W&S FRANCH ", G of. f , . 1t_ . ft I' -.:;7- , ~ 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 ~~" \. "1\ -~ 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. - 2 - ,... . . ,. h :e! ~l 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. - 3 - -. . ,J!!' , ~ " !Il ~ t 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 ~ Resolution duly passed and , 1992. ATTF"ST: CMCjAAE (SEAL) s to Form and Content: city Attorney - 4 - J'" ( " ,~ INTERLOCAL UTILITIES AGREEMENT BETWEEN INDIAN RIVER COUNTY, FLORIDA AND CITY OF SEBASTIAN, FLORIDA 'l !t ~ .. ~ f\ " . 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- 2 ~ ~ ~ Ii t, 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 3 " t..l '"\ !., " 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. 4 r tJ ., l1 \ 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. 5 ~ T" ,It ~ 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 6 lOr ,', " 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 7 . . . , , 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. 8 I" .lr 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 9 . . ',.1 t;f , , 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, 10 I" tl.. . \ ., 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. 11 " ,,,:, " " . 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, 12 ,", r'.r , 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 13 ,'f fl, agreement on the date first above written. Attest: ,._~.,-..--' - _."._.....-.-~"..-.,..."....-.~"-........,....~"~.. Jef~. +~~._ a~ ,e, Attest: r INDIAN RIVER COUNTY, FLORIDA BOARD OF COUNTY COMMISSIONERS ~ /~ 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: r~ Ian Nash, City Attorney lndi.m AiV1!f CD. AfJ{)rOved Admin. Date Lega! 6ud;~.r;i D~jJt Risi'l, !\ilgr 14