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HomeMy WebLinkAboutItem #09a City of Ocoee/Orange County Reclaimed Water Territorial Agreement 4 be Centel of Good L AGENDA ITEM COVER SHEET Meeting Date: June 19, 2012 Item # l Q..,, Reviewed By: / Contact Name: Charles K. Smith, P.E. Department Director: Charles K. Smith i Contact Number: 407 - 905 -3159 City Manager: Robert Frank . / Subject: City of Ocoee / Orange County Reclaimed Water Territorial Agreement Background Summary: The approval of the Reclaimed Water Territorial Agreement formalizes the current City limits and enclave parcels as the City's Reclaimed Territory, and confirms the areas beyond the City limits and in Orange County as the County's reclaimed territory. The agreement provides methods to modify the reclaim areas. This Territorial Agreement should be considered in conjunction with the City of Ocoee /Orange County Agreement For The Delivery and Use of Wholesale Reclaimed Water. As this provides clarity to service territory for reclaimed water, Staff recommends the approval of the Territorial Agreement even if the Wholesale Agreement is denied. Issue: Should the City Commission and Mayor enter into an Agreement with Orange County to establish reclaimed water service areas for both the City and County, and establish methods to modify those areas? Recommendations: Motion to accept and authorize the Mayor to execute the City of Ocoee / Orange County Reclaimed Water Territorial Agreement. Attachments: Agreement with attached Exhibits "A" "City Reclaimed Water Service Area" and Exhibit "B" "North Wholesale Area" Financial Impact: The approval of this Agreement does not have any direct fiscal impact. Type of Item: (please mark with an "x') Public Hearing For Clerk's Dept Use: Ordinance First Reading / Consent Agenda Ordinance Second Reading Public Hearing Resolution Regular Agenda X Commission Approval Discussion & Direction Original Document/Contract Attached for Execution by City Clerk 1 4 Original Document/Contract Held by Department for Execution Reviewed by City Attorney N/A Reviewed by Finance Dept. N/A Reviewed by ( ) N/A 2 CITY OF OCOEE / ORANGE COUNTY RECLAIMED WATER TERRITORIAL AGREEMENT THIS RECLAIMED WATER TERRITORIAL AGREEMENT (the "Agreement ") is made and entered by and between the CITY OF OCOEE, a municipal corporation located in Orange County, Florida (the "City ") and ORANGE COUNTY, a charter county and political subdivision of the State of Florida (the "County "). The Effective Date of this Agreement is , 2012. The City and County may also be referred to in this Agreement individually as a "Party" or collectively as the "Parties." RECITALS WHEREAS, Section 163.01, Florida Statutes, known as the "Florida Interlocal Cooperation Act of 1969" authorizes local governments to make the most efficient use of their powers by enabling them to cooperate with other localities on a basis of mutual advantage and thereby to provide services and facilities that will harmonize geographic, economic, population, and other factors influencing the needs and development of local communities; and WHEREAS, the City is authorized to provide reclaimed water service pursuant to Art. VIII, § 2(b) of the Florida Constitution and Chapters 166 and 180, Florida Statutes, within and throughout the City of Ocoee, and pursuant to such authority presently furnishes reclaimed water services to customers within the corporate limits of the City of Ocoee ; and WHEREAS, the County is authorized to provide reclaimed water service pursuant to its Page 1 of 12 home rule powers as a charter county, under Chapter 125, Florida Statutes, and other laws, within and throughout Orange County, Florida, and pursuant to such authority, presently furnishes reclaimed water service to customers in Orange County, Florida; and WHEREAS, the City is legally authorized to provide or make provision for the delivery of utility services, including reclaimed water, pursuant to the City's home rule powers and under Chapter 166, Florida Statutes; and WHEREAS, the City and County recognize the desirability and the need to provide reclaimed water service in a manner that is both economical and consistent with the water conservation and management policy of the State of Florida; and WHEREAS, the City and County also recognize that the duplication of reclaimed water service facilities could result in wasted resources; and WHEREAS, it is the intent of the City and County to conserve and protect their water resources in the interests of public health, safety and welfare, and to avoid and eliminate the circumstances giving rise to the aforesaid duplications; to that end, the Parties have agreed to establish reclaimed water service areas; and WHEREAS, in order to establish said areas, the Parties have agreed upon a boundary line describing the areas hereinafter referred to as the "City Reclaimed Water Service Area" and the "County Reclaimed Water Service Area," as described in this Agreement; and WHEREAS, rapidly moving customers from potable water to reclaimed water for irrigation is a high priority for the Parties; and WHEREAS, in construing this Agreement, the Parties hereby declare that they do not intend to be and are not by this Agreement: (a) placing undue or unreasonable restrictions upon free Page 2 of 12 competition; (b) fixing prices; or (c) unreasonably limiting reclaimed water service capacity; and WHEREAS, the County and the City hereby determine this Agreement is in the public interest. NOW, THEREFORE, in consideration of the recitals, agreements, and mutual covenants contained herein, the Parties hereto agree as follows: Section 1. RECITALS. The above recitals are true and correct, and by this reference are incorporated in this Agreement. Section 2. SERVICE AREAS. 2.1 City Reclaimed Water Service Area. All lands in the City's current municipal boundaries and all lands located in unincorporated Orange County but within the City's Joint Planning Area as defined in the Joint Planning Area Agreement, dated February 11, 1994, as amended, between the City and County (the "JPA Agreement"), all of which are more particularly depicted in Exhibit "A ", attached hereto and incorporated herein, are hereby established and designated as the "City Reclaimed Water Service Area ". The City agrees to provide reclaimed water service within the City Reclaimed Water Service Area where reasonably possible, provided, however, that the parties acknowledge and agree that by separate agreement entitled "City of Ocoee /Orange County Agreement for the Delivery and Use of Wholesale Reclaimed Water," the County shall be the wholesale reclaimed water provider for the North Wholesale Area as depicted on Exhibit "B ". The parties acknowledge and agree that the North Wholesale Water Area shall be served by the City as the retail reclaimed water service provider. The foregoing shall be subject to the property owner's compliance with the applicable City rules and regulations, as they may from time to time be amended, with respect to the provision of reclaimed water service. Page 3 of 12 2.2 County Reclaimed Water Service Area. All lands in Orange County lying outside of the City Reclaimed Water Service Area are hereby established as the County Reclaimed Water Service Area; provided, however, that the City makes no representations regarding the authority of the County to provide reclaimed water service within such area. 2.3 New Customers. The County shall not hereafter serve or offer to serve any new customer (whether individual or on a project basis) located in the City Reclaimed Water Service Area unless the City requests in writing that the County do so. Likewise, the City shall not hereafter serve or offer to serve any new customer (whether individual or on a project basis) located in the County Reclaimed Water Service Area unless the County requests in writing that the City do so. 2.4 Annexed Areas. (a) For properties located within the Joint Planning Area, which are located within unincorporated Orange County, and which are not served by the County as reclaimed water service customers, prior to the annexation of the property, the City may, subject to paragraph 2.4(b) below, in order to reduce existing enclaves, avoid the creation of enclaves and pocket areas of unincorporated areas, or to provide for compact development or master planned communities or for such other reasons as may be determined by the City in its discretion, require annexation into the corporate limits of the City or an agreement to annex as a prerequisite to providing reclaimed water service to such properties. The City shall ensure that such annexations comply with the requirements of Chapter 171, Florida Statutes. (b) All existing customers in the County Reclaimed Water Service Area shall remain County customers after annexation(s). The City and the County acknowledges that Page 4 of 12 O: \UTILITIES \Utilities Admin \Staff Report\2012- 06 -19 \OC Reclaimed Territorial Agreement \Territorial Agreement \Territorial for Reclaimed Water 05_1 5 12 Final for Execution.DOC County does not have any existing customers for reclaimed water service who are located within the corporate limits of the City as of the Effective Date. 2_5 Utility Charges. The City shall charge the same rates to its reclaimed water service customers in unincorporated Orange County that it charges to City residents. The County shall charge the same rates to its reclaimed water service customers who may be hereafter located in the City (by annexation) that it charges to reclaimed water service customers in unincorporated areas. 2.6 Alterations of Service Area. Recognizing that future circumstances, coupled with good engineering practice and economical operation, may necessitate alterations to the City Reclaimed Water Service Area boundary as herein described, the Parties hereby agree that the boundary may be altered by written agreement. Boundary alterations of fifty (50) acres or less may be accomplished by letter agreement signed by both the County's Director of Utilities and the City's City Manager, and each such letter agreement will become an amendment to this Agreement. Boundary alterations greater than fifty (50) acres shall be subject to the approval of the governing boards of each Party as amendments to this Agreement. All amendments, including by letter agreement, shall include, inter alia, an updated legal description and a map of the altered City Reclaimed Water Service Area boundary amending Exhibit "A" attached hereto and shall be kept on file with the clerks to the respective boards. Section 3. RECLAIMED WATER FACILITIES. This Agreement does not prohibit or authorize the City from seeking permits and approvals and constructing reclaimed water facilities anywhere in Orange County, subject to compliance with all applicable laws, ordinances, rules, and regulations, and to construct reclaimed water lines to connect its facilities with other portions of the City's reclaimed water transmission systems, subject to compliance with applicable laws, ordinances, Page 5of12 rules and regulations, including without limitation, County right -of -way utilization and inspection fees. This Agreement does not prohibit or authorize the County from seeking permits and approvals and constructing reclaimed water facilities anywhere in Orange County, including within the corporate limits of the City, subject to compliance with applicable laws, ordinances, rules and regulations, including without limitation, City right -of -way utilization and inspection fees. Section 4. DISCLAIMER OF THIRD -PARTY BENEFICIARIES. This Agreement is solely for the benefit of the formal Parties hereto, 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, corporation or governmental entity 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 herein contained shall inure to the sole benefit of and shall be binding upon the Parties hereto. Section 5. SEPARATE PARTIES. The City and the County remain separate utility service providers, each retaining sovereign and proprietary authority with regard to independently providing reclaimed water services. Section 6. ASSIGNMENT. Except as otherwise specifically provided herein, this Agreement shall not be assignable without the express written permission of the Parties, which permission may be granted or denied in each Party's sole discretion. The Parties, however, have the right to assign to any other government or any other governmental utility provider the rights, duties, and obligations hereunder upon notification of said assignment to the other Party. Section 7. NOTICES. Any notice required or allowed to be delivered hereunder shall be in writing and be deemed to be delivered when (a) hand delivered to the official hereinafter Page 6 of 12 designated, or (b) upon receipt of such notice when deposited in United States mail, postage prepaid, certified mail, return receipt requested, addressed to a Party at the address set forth opposite the Party's name below, or at such other address as the Party shall have specified by written notice to the other Party delivered in accordance with: COUNTY: Director of Utilities Orange County Utilities Department 9150 Curry Ford Road Orlando, Florida 32825 COPY TO: Orange County Attorney's Office 201 South Rosalind Avenue, 3 Floor Orlando, Florida 32801 CITY: City Manager City of Ocoee 150 N. Lakeshore Dr. Ocoee, Florida 34761 COPY TO: Utilities Director City of Ocoee 1800 A. D. Mims Ocoee, Florida 34761 Section 8. SERVICE STANDARDS. Each of the Parties hereto agrees to comply with all state, regional, and federal requirements and rules applicable to the provision of reclaimed water service to the public. However, neither Party guarantees any special service, pressure, quality, capacity, availability or other facility with respect to its provision of reclaimed water service.. Section 9. SEVERABILITY. If any part of this Agreement is found invalid or unenforceable by any court, such invalidity or unenforceability shall not affect the other parts of this Agreement if the rights and obligations of the Parties can continue to be effected. To that end, this Agreement is declared severable. Page 7 of 12 Section 10. EFFECTIVE DATE AND TERM OF AGREEMENT. This Agreement shall be effective on the first date on which both Parties have executed this Agreement and have executed that certain "City of Ocoee /Orange County Agreement for the Delivery and Use of Wholesale Reclaimed Water" (the "Effective Date ") and shall continue in full force and effect for a period of twenty -five (25) years ( "Initial Term "). The Effective Date shall be inserted on the first page of all originals of this Agreement. Thereafter, this Agreement shall automatically be extended for successive ten (10) year terms unless either Party provides written notice to the other Party of its intent to terminate this Agreement at least one (1) year prior to the end of the initial or any successive term. The execution by the Parties of that certain "City of Ocoee /Orange County Agreement for the Delivery and Use of Wholesale Reclaimed Water" is a material inducement to both parties agreeing to enter into this Agreement. Section 11. APPLICABLE LAW. This Agreement and the provisions contained herein shall be construed, controlled and interpreted according to the laws of the State of Florida. Section 12. NOTICES; DEFAULT. Each of the Parties hereto shall give the other Party written notice of any defaults hereunder and shall allow the defaulting Party thirty (30) days from the date of receipt to cure such defaults. The provisions of this Agreement shall be enforceable by specific performance which shall be the exclusive remedy of the Parties in the event of a default which is not cured within said timeframe. Section 13. CONSTRUCTION OF AGREEMENT, INTENT AND INTERPRETATION. This Agreement shall not be construed as modifying or altering the governmental powers of the City or County as they now exist or may be modified in the future, except as are lawfully and expressly provided by the terms of this Agreement. Page 8of12 Section 14. ENTIRE AGREEMENT. This instrument constitutes the entire agreement between the Parties and supersedes all previous discussions and understandings between the Parties relating to the subject matter of this Agreement. SIGNATURES ON FOLLOWING PAGE Page 9 of 12 IN WITNESS WHEREOF, the Parties hereto have hereunder executed this Agreement on the dates indicated below. ORANGE COUNTY, FLORIDA By: Board of County Commissioners By: Teresa Jacobs Orange County Mayor Date: , 2012 Attest: Martha O. Haynie, County Comptroller As Clerk of the Board of County Commissioners By: Deputy Clerk CITY OF OCOEE By: S. Scott Vandergrift, Mayor ATTEST: By: Beth Eikenberry, City Clerk (SEAL) FOR USE AND RELIANCE ONLY BY APPROVED BY THE OCOEE CITY THE CITY OF OCOEE, FLORIDA; COMMISSION AT A MEETING APPROVED AS TO FORM AND HELD ON , 2012 LEGALITY this day of UNDER AGENDA ITEM NO. , 2012 SHUFFIELD, LOWMAN & WILSON, P.A. By: City Attorney Page 10 of 12 e r � �� n .. pRir,,I�x Rh Z l 0 0125025 I' Mlles I I yam ......... l.,.. 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