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Home My WebLink AboutResolution 1994-19• RESOLUTION NO. 94 -19 A RESOLUTION OF THE CITY OF CAPE CANAVERAL, BREVARD COUNTY, FLORIDA; AUTHORIZING THE MAYOR AND CITY CLERK TO ENTER INTO AN INTERLOCAL AGREEMENT WITH THE CITY OF COCOA BEACH FOR SEWAGE EFFLUENT REUSE; AND PROVIDING FOR AN EFFECTIVE DATE. NOW THEREFORE, BE IT RESOLVED, by the City Council of the City of Cape Canaveral, Brevard County, Florida, as follows: SECTION 1. The Mayor and City Clerk are hereby authorized to execute the Interlocal Agreement with the City of Cocoa Beach under which treated effluent will be furnished by the City of Cape Canaveral to the City of Cocoa Beach for twenty (20) years beginning on the effective date of the agreement; a copy of said agreement is attached hereto and made a part hereof by reference. SECTION 2. This Resolution shall take effect immediately upon its adoption. ADOPTED BY the City Council of the City of Cape Canaveral, Florida, this 5th day of April 1994. ApproVO / &s, to Fort: SOD John R. Kancilia, CITY ATTORNEY . Salamone, MAYOR BERGER E 0 ' ,14,4• �`'' C'crk Circuit Wirt Recerocd and Verffiad Bravard Co ty, Ft. rgs. 0 # Na_,es INTERLOCAL AGREEMENT �'J' Fu:c� .50 Rec Fee o Si_r;SF•fle"d Excisa Tx S anp•Mtg Service Che Refund THIS INTERLOCAL AGREEMENT is made this 6th day of • o N APRIL , 1994 , by and between the CITY OF CAPE CANAVERAL, -1 FLORIDA, a Florida municipal corporation (hereinafter referred to � y m m as "Cape Canaveral") and THE CITY OF COCOA BEACH, FLORIDA, a o 3121",„ a v Florida municipal corporation (hereinafter referred to as "Cocoa r aBeach") , collectively referred to as the "parties" . 0 3 RECITALS H WHEREAS, Cape Canaveral operates a sewage treatment system that produces treated effluent which, following the construction of certain improvements to the sewage treatment system, will be ro acceptable for reuse in a public access irrigation system; r@ WHEREAS, Cocoa Beach operates a public access reuse system and co is in need of supplementary treated effluent to satisfy service N 1214 a' area irrigation water demands; and WHEREAS, Cape Canaveral and Cocoa Beach desire to establish an agreement under which treated effluent will be furnished by Cape Canaveral to Cocoa Beach. NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, it is agreed as follows: -13 n3 1. Incorporation of Recitals. The foregoing recitals are true and accurate and are incorporated herein by reference. s uo 2. Conditions Precedent. All rights, obligations and ry liabilities of Cape Canaveral and Cocoa Beach under this Agreement shall be subject to the satisfaction of the following conditions precedent: 6K3382PG2717 (a) The complete execution of this Agreement by Cape Canaveral and Cocoa Beach. (b) No action, suit, proceeding or official investigation shall have been threatened, announced, or commenced by any person or federal, state or local governmental authority or agency that seeks to enjoin, assess civil or criminal penalties against, assess civil damages against, or obtain any judgement, order, or consent decree with respect to either party hereto, in connection with their respective representations and obligations under this Agreement. (c) The parties shall exercise good faith and due diligence in satisfying the conditions precedent set forth immediately above. 3 . Representations of Cocoa Beach. Cocoa Beach makes the following representations to Cape Canaveral: (a) Cocoa Beach is duly organized and in good standing under the laws of the State of Florida, and is duly qualified and authorized to carry out the governmental functions and operations set forth in this Agreement. (b) Cocoa Beach has the power, authority, and legal right to enter into and perform the obligations set forth in this Agreement, and the execution, delivery and performance hereof by Cocoa Beach (i) has been duly authorized by the City Commission of the City of Cocoa Beach; (ii) does not constitute a default under, or result in the creation of any lien, charge, encumbrance or 2 6K3382PG2718 security interest upon the assets of Cocoa Beach, except as otherwise provided herein. 4. Representations of Cape Canaveral. Cape_Canaveral makes the following representations to Cocoa Beach: (a) Cape Canaveral is duly organized and in good standing under the laws of the State of Florida, and is duly qualified and authorized to carry on the governmental functions and operations set forth in this Agreement. (b) Cape Canaveral has the power, authority, and legal right to enter into and perform the obligations set forth in this Agreement, and the execution, delivery and performance hereof by Cape Canaveral (i) has been duly authorized by the City Council of the City of Cape Canaveral; (ii) does not constitute a default under, or result in the creation of any lien, charge, encumbrance or security interest upon the assets of Cape Canaveral, except as otherwise provided herein. 5. Statutory Authority. This Agreement shall be considered an Interlocal Agreement pursuant to Chapter 163. 01, Fla. Stat. A true and correct copy of this Agreement shall be filed with the Clerk of the Circuit Court in Brevard County. 6. Effective Date: Commencement of Service: Term of Agreement. (a) The effective date of this Agreement shall be the date of the signature of the last party to sign this Agreement (the "Effective Date") . 3 8K3382PG2719 (b) The commencement of service shall occur on July 1, 1995 or on an earlier date mutually agreed to by the parties (the "Commencement Date") . The commencement is, however, contingent upon receipt of connection fees due to Cocoa Beach from Patrick A.F.B. A delay in the obtainment of said fees will cause a day- for-day time delay in commencement, but in no event shall such delay in commencement exceed one (1) year. In the event Cape Canaveral's sewage treatment system has not been modified to permit the discharge of wastewater effluent which meets the criteria established in Florida Administrative Code §17-610 for use in a public access irrigation system by the Commencement Date, the Commencement Date under this Agreement may be extended by Cape Canaveral upon thirty (30) days' prior written notice to Cocoa Beach for a period not to exceed one (1) year after July 1, 1995. In the event Cocoa Beach is unable to obtain connection fees as aforesaid and/or Cape Canaveral is unable to produce wastewater effluent which meets the criteria of Florida Administrative Code §17-610 by July 1, 1996, then the Commencement Date of this Agreement may be extended only by the mutual agreement of the parties. References to the Commencement Date shall include any extension authorized herein. (c) The term of this Agreement shall be for a period of twenty (20) years beginning on the Commencement Date of this Agreement. 4 BK3382Pc2720 7. Duties of the Parties Prior to the Commencement Date. (a) Prior to the Commencement Date, each party shall acquire all necessary easements and rights of way to effectuate the purposes of this Agreement. (b) Each party will cooperate with the other party in obtaining any and all permits necessary or convenient to the acquisition or operation of reuse in a public access irrigation system. (c) Not later than the Commencement Date, Cocoa Beach shall have constructed all improvements and infrastructures within its boundaries necessary to accept the Distribution Amount (as hereinafter defined) from Cape Canaveral, including, but not limited to, pipelines, storage tanks, and discharge devices, but excluding those improvements and infrastructures required to be provided by Cape Canaveral. (d) Not later than the Commencement Date, Cape Canaveral shall have constructed all improvements and infrastructures necessary to deliver the Distribution Amount to Cocoa Beach, including, but not limited to, pipelines, storage tanks, and discharge devices. (e) The point of connection between the two systems shall be at a location where the respective municipal boundaries meet, the exact site will be mutually agreed upon at a later date. (f) Each party shall bear its own expense to construct improvements and infrastructures necessary to insure efficient transfer and distribution of treated effluent pursuant to the terms 5 BK3382PG272I of this Agreement. All necessary construction performed by Cape Canaveral shall be paid for by Cape Canaveral and all construction performed by Cocoa Beach will be paid for by Cocoa Beach. Provided, however, costs incurred by Cocoa Beach to increase the size of the pipeline which will convey Cape Canaveral's effluent into the Cocoa Beach proposed ground storage tank immediately south of State Road 520 shall be reimbursed at actual construction cost by Cape Canaveral, within 30 days of acceptance by both parties of completion of construction. (g) All construction of improvements and infrastructures shall be in accordance with all applicable federal, state, county or municipal laws, ordinances and regulation. 8. Distribution Amount. On and after the Commencement Date, Cocoa Beach agrees to accept treated effluent from Cape Canaveral in an amount equal to an annual average of 750, 000 gallons per day ("Distribution Amount") subject to reduction or cessation by Cocoa Beach during wet weather. The Distribution Amount shall remain fixed for each three (3) year period of this Agreement; the first such period shall begin on the Commencement Date. Cape Canaveral and Cocoa Beach shall, one (1) year prior to the expiration of each three (3) year term, negotiate any adjustments to the Distribution Amount. Such adjustments to the Distribution Amount shall be made only upon mutual agreement of the parties. In the event that the parties fail to adjust the Distribution Amount, the Distribution Amount for the immediately following three (3) year period shall remain at its then current level. 6 BK3382PG2722 9. Operations. In order to operate as an integrated reclaimed water system, a telemetry system will be provided by Cape Canaveral that is compatible with the existing Cocoa Beach telemetry system such that both systems may operate as an integrated system. An operating protocol shall be established such that both systems may also operate independent of the other. 10. Indemnification. (a) Cocoa Beach agrees that it will indemnify and hold harmless Cape Canaveral to the extent permitted by law, from any and all liability, claims, damages, expenses, proceedings and causes of action of any kind and/or nature arising out of or connected with Cocoa Beach's management, control, use, operation, maintenance or repair of the water distribution facilities provided for hereunder subject to Section 768. 28, Fla. Stat. Cocoa Beach agrees that it will, at its own expense, defend any and all actions, writs or proceedings which are brought against Cape Canaveral and which arise out of circumstances set out previously in this paragraph and that it will satisfy, pay and discharge any and all judgments that may be entered against Cape Canaveral in any such actions or proceedings. (b) Cape Canaveral agrees that it will indemnify and hold harmless Cocoa Beach to the extent permitted by law, from any and all liability, claims, damages, expenses, proceedings and causes of action of any kind and/or nature arising out of or connected with Cape Canaveral's management, control, use, 7 6K3382PG2723 operation, maintenance or repair of the water distribution facilities provided for hereunder subject to Section 768. 28, Fla. Stat. Cape Canaveral agrees that it will, at its own expense, defend any and all actions, writs or proceedings which are brought against Cocoa Beach and which arise out of circumstances set out previously in this paragraph, and that it will satisfy, pay and discharge any and all judgments that may be entered against Cocoa Beach in any such actions or proceedings. 11. Notices. All notices required pursuant to this Agreement shall be in writing, and shall be delivered to the parties by United States mail, postage prepaid, as follows: Cocoa Beach Representative: City of Cocoa Beach City Manager P. 0. Box 322430 Cocoa Beach, FL 32932-2430 Cape Canaveral Representative:_ City of Cape Canaveral City Manager 105 Polk Avenue Cape Canaveral, FL 32920 12. Severability. If any section, subsection, sentence, clause, phrase or portion of this Agreement is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision of such holding, and such holding shall not affect the validity of the remaining portions hereof. 13 . Attorney's Fees. In the event of any litigation hereunder to enforce or construe the terms of this Agreement, the 8 Bn3382PG2724 prevailing party shall be entitled to an award of its reasonable attorney's fees and court costs incurred in such action. 14. Entirety. This Agreement represents the entire understanding of the parties hereto. Any amendments shall be in writing and signed by both parties. 15. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. 16. Applicable Law. The laws of the State of Florida shall govern the validity, interpretation, construction and performance of this Agreement. Venue for any suit involving this Agreement shall be in Brevard County, Florida. 17. Waiver. Unless otherwise specifically provided by the terms of this Agreement, no delay or failure to exercise a right resulting from any breach of this Agreement shall impair such right or shall be construed to be a waiver thereof, but such right may be exercised from time to time and as often as may be deemed expedient. Any waiver shall be in writing and signed by the party granting such waiver. If any representation, warranty or covenant contained in this Agreement is breached by any party and thereafter waived by the other party, such waiver shall be limited to the particular breach so waived and shall not be deemed to waiver, either expressly or impliedly, any other breach of this Agreement. 9 8K3382PG2725 IN),WITNESS WHEREOF, the parties have set their hands and seals :. a C 1%` ,'..`4,1'.- Yh 4a 4,,below stated. a 'i1 d , it .: t j_i'''A vi 4:,,-_,41=---6• CITY OF COCOA BEACH -yy rw �, �Fo � it_ P :. �: ); t. By: SZ =for ean %,°<a'` aghcy, TY CL J se Morgan, MAR /,f' ,+ DATED: April 6, 1994 I yr ��F Attest• ` • / " CITY CAPE CANAVERAL !! fi t o / 'F _ Y / •,---- 1th G tii1 CLERK J,%y % . Salamone, MAYOR kV r ,I4'. 4' 1 .0 KIT 11, y DATED: April 5, 1994 ', r n �(� V :z ve r 10 B 3382PG2�726