CITY OF FLAGLER BEACH/CITY OF PALM COAST
INTERLOCAL AGREEMENT
RELATING TO WATER AND WASTEWATER SERVICE AREAS
THIS INTERLOCAL AGREEMENT made and entered into this _______ day of
________________, 2006, by and between the CITY OF PALM COAST, FLORIDA
(hereinafter referred to as “PALM COAST”), a municipal corporation of the State of
Florida, whose address is 2 Commerce Blvd., Palm Coast, Florida 32164, and the CITY
OF FLAGLER BEACH (hereinafter referred to as “FLAGLER BEACH”), a municipal
corporation of the State of Florida, whose address is Post Office Box 70, 105 S. 2nd
Street, Flagler Beach, Florida 32136.
W I T N E S S E T H:
WHEREAS, PALM COAST has acquired all of the systems, assets and property
interests owned by Florida Water Services Corp. (FWSC) within Flagler County, Florida;
and
WHEREAS, PALM COAST assumed jurisdiction over the utility systems of
FWSC along with areas of Flagler County later annexed into the City Limits of PALM
COAST; and
WHEREAS, PALM COAST adopted Resolution Number 2003-17 and enacted
Ordinance Numbers 2003-21 and 2003-22, and thereby established a water and
wastewater service area pursuant to Florida Statutes, Chapter 180, and reserved its
unconditional statutory and constitutional right to acquire or purchase any water and
wastewater utility up to five miles outside of its city limits, including the area to the
southeast of the boundaries of PALM COAST including the area known as the Bulow
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Service Area; and
WHEREAS, PALM COAST and FLAGLER BEACH have been involved in
obtaining the issuance of Consumptive Use Permits from the St. Johns River Water
Management District (SJRWMD) relating to potable water services to be provided to the
service areas of PALM COAST and of FLAGLER BEACH; and
WHEREAS, FLAGLER BEACH enacted Ordinance No. 2001-20 pursuant to
Florida Statutes Chapter 180, and thereby established a water and wastewater service
area to the southeast of the boundaries of PALM COAST, including the area known as
the Bulow Service Area; and
WHEREAS, to effectuate the goals and objectives of PALM COAST and
FLAGLER BEACH to provide adequate public services to the citizens of PALM COAST,
FLAGLER BEACH and Flagler County, PALM COAST and FLAGLER BEACH must
engage in appropriate long term planning activities; and
WHEREAS, the parties hereto have the common power to provide essential
public utility services within their respective geographic jurisdictions; and
WHEREAS, PALM
COAST
initiated
governmental
dispute
resolution
proceedings pursuant to Chapter 164, Florida Statutes, by adopting Resolution No.
2006-05 on January 17, 2006; and
WHEREAS, FLAGLER BEACH joined in the governmental dispute resolution
proceedings pursuant to Chapter 164, Florida Statutes, by adopted Resolution No.
2006-07, in an effort to resolve disputes over water and wastewater service areas,
including but not limited to, the Bulow Service Area; and
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WHEREAS, as a result of Conflict Assessment meetings held pursuant to
Chapter 164, Florida Statutes, PALM COAST and FLAGLER BEACH have agreed to
resolve water and wastewater service area conflicts; and
WHEREAS, it would be prudent for the parties to articulate their agreement
reached during Conflict Assessment meetings and to ensure that a clear understanding
of their respective rights and obligations exist as to one another and with regard to their
water and wastewater service areas and to provide a resolution to boundary issues;
and
WHEREAS, PALM COAST and FLAGLER BEACH have determined that the
terms and conditions of this Agreement are in the best interests of the public health,
safety and welfare of the citizens of PALM COAST and FLAGLER BEACH and provide
for a public benefit; and
WHEREAS, Part II, Chapter 163, Florida Statutes, styled as the “Local
Government Comprehensive Planning and Land Development Regulation Act,” requires
local governments to comprehensively plan and manage growth and provisions of
public facilities such as potable water, wastewater treatment, and the use of water
resources in a conservation mode by reusing water for multiple purposes; and
WHEREAS, the PALM COAST City Council and the FLAGLER BEACH City
Commission hereby find and conclude that the provisions of this Agreement are
consistent with their respective Comprehensive Plans and will result in the most
efficient and cost effective provision of utility service and enhanced public services; and
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WHEREAS, this Interlocal Agreement is authorized by the provisions of Section
163.01, Florida Statutes, which authorizes the joint exercise by agreement of two (2) or
more public agencies of any power common to them and other applicable law; and
WHEREAS, PALM COAST and FLAGLER BEACH are ready, willing, and able
to serve and provide water and wastewater services to the respective areas to which
each agrees, each having the capacity to serve its respective area.
NOW, THEREFORE, in consideration of the foregoing, and the premises and the
promises, covenants and agreements herein contained, and of other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged by the
parties FLAGLER BEACH and PALM COAST agree as follows:
SECTION 1. RECITALS.
The above recitals are true and correct and form a material part of this Interlocal
Agreement upon which the parties have relied.
SECTION 2. PURPOSE.
The purpose of this Interlocal Agreement is to coordinate certain matters relative
to the provision of public utility services within the most beneficial service areas to the
consuming public.
SECTION 3. ESTABLISHMENT OF SERVICE AREAS.
(a)
FLAGLER BEACH shall be the exclusive provider of water and
wastewater services to the area depicted as Area “A” on attached Exhibit “A”.
(b)
PALM COAST shall be the exclusive provider of water and wastewater
services to the area marked as Area “B” on Exhibit “A”.
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(c)
Each party shall have the exclusive right and duty to provide potable water
and wastewater services, reclaimed water services, and related services within their
respective areas.
SECTION 4.
SALE OF BULK POTABLE WATER SERVICES BY PALM
COAST TO FLAGLER BEACH.
(a)
FLAGLER BEACH shall purchase bulk potable water services from PALM
COAST to serve the area depicted as Area “C” on Exhibit “A” attached to this Interlocal
Agreement.
(b)
FLAGLER BEACH shall pay to PALM COAST the amounts due for bulk
potable water services as shall be established for such bulk services from time-to-time
pursuant to the adoption of rate resolutions or other appropriate actions.
SECTION 5. FUTURE ANNEXATION WITHIN SUBJECT AREAS.
(a)
If PALM COAST shall in the future annex areas into the City of PALM
COAST now located in FLAGLER BEACH’S water and wastewater service area as
depicted in Area “A” of Exhibit “A,” FLAGLER BEACH, at its option, may sell or transfer
those annexed utility service customers and facilities located within such annexed area
to PALM COAST in an orderly fashion, according to a price and terms agreed to by the
parties.
(b)
If FLAGLER BEACH shall in the future annex areas into the City of
FLAGLER BEACH now located in PALM COAST’S water and wastewater service area
as depicted in Area “B” of Exhibit “A,” PALM COAST, at its option, may sell or transfer
those annexed utility service customers and facilities located within such annexed area
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to FLAGLER BEACH in an orderly fashion, according to a price and terms agreed to by
the parties.
SECTION 6. IMPLEMENTING ACTIONS OF THE PARTIES.
The parties shall take any and all necessary and appropriate actions relating to
amendments to their respective comprehensive plans and any other appropriate
documents as may be appropriate relative to the implementation of this Interlocal
Agreement.
SECTION 7. EMPLOYEE STATUS.
Persons employed by one party in the performance of services and functions
pursuant to this Interlocal Agreement shall have no claim to salary, pension, workers’
compensation, civil service, or other employee rights or privileges granted by any other
party to its officers and employees.
SECTION 8. LIABILITY.
(a)
Each party shall be liable for all damages or injury to persons or property
caused solely by its actions, errors, omissions, neglect or mismanagement, or by the
actions of any of its officers, agents and employees while engaged in the operations
herein authorized, and for any actions or proceedings brought as a result of the this
Interlocal Agreement.
(b)
Should a party be sued for actions that are believed to be the result of the
other party, the other party shall be notified of such suit and, thereupon, shall have the
duty to defend the suit.
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(c)
Should judgment be awarded against a party in any such case, the party
shall forthwith pay the same and relieve other party of any obligations relating thereto.
(d)
The parties shall indemnify and save harmless the other party, its agents,
officers and employees from any and all judgments recovered by anyone for personal
injury, death or property damage, or any other theory of liability sustained by reason of
any of the party’s activities or for any actions or proceedings brought as a result of this
Interlocal Agreement and shall pay all expenses including, but not limited to, defense
and legal costs and attorney’s fees, in defending against any such claim made against
the indemnified party or any of the indemnified party’s agents, officers or employees.
(e)
The indemnity provision above is not intended as a waiver of PALM
COAST’S or FLAGLER BEACH’S common law right of sovereign immunity, as adopted
in Florida Statutes Section 2.01. The limited waiver of sovereign immunity set forth in
Florida Statutes Section 768.28 for tort actions brought against either PALM COAST or
FLAGLER BEACH shall be applicable to any action brought pursuant to this indemnity
provision, even if the indemnity action sounds in contract rather than tort.
SECTION 9. TERM.
This Interlocal Agreement shall become effective on the date of execution by the
parties, and shall be perpetual in effect.
SECTION 10. NOTICES.
(a)
With regard to any notices that may be implemented, as the case may be
under the terms of this Interlocal Agreement, such notices shall be directed as follows:
PALM COAST
Richard Kelton, City Manager
City of Palm Coast, Florida
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City Hall
2 Commerce Boulevard
Palm Coast, Florida 32164
FLAGLER BEACH
Bill Veach
City of Flagler Beach
Post Office Box 70
105 S. 2nd Street
Flagler Beach, Florida 32136
(b)
Any party may change, by written notice as provided herein, the address
or person for receipt of notices.
SECTION 11. BINDING EFFECT.
(a)
This Interlocal Agreement shall be binding upon and inure to the benefit of
the successors in interest, transferees and assigns of the parties.
(b)
Each party hereto represents to the other that it has undertaken all
necessary actions to execute this Agreement, and that it has the legal authority to enter
into this Agreement and to undertake all obligations imposed on it.
(c)
The signatories hereof represent that they have the requisite and legal
authority to execute this Agreement and bind the respective parties herein.
SECTION 12. PUBLIC RECORDS.
The parties shall allow public access to all documents, papers, letters or other
materials subject to the provisions of Chapter 119, Florida Statutes, and the
Constitution of the State of Florida and which have been made or received by either
party in conjunction with this Interlocal Agreement.
SECTION 13. RECORDS AND AUDITS.
(a)
Each party shall maintain at its respective place of business all books,
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documents, papers, and other evidences pertaining to work performed under this
Interlocal Agreement.
(b)
Such record shall be available at any time that the other party reasonably
requests inspection and copying of said records.
SECTION 14. COMPLIANCE WITH LAWS AND REGULATIONS.
In performing their obligations pursuant to this Agreement, the parties shall abide
by all laws, statutes, ordinances, rules, and regulations pertaining to, regulating the acts
contemplated to be performed herein including, but not limited to, those now in effect
and hereafter adopted. Any violation of said laws, statutes, ordinances, rules or
regulations shall constitute a material breach of this Interlocal Agreement.
SECTION 15. INTERPRETATION/APPLICABLE LAW/VENUE.
The laws of the State of Florida shall govern this Agreement. Any legal action
arising out of the Agreement will have its venue in Flagler County, and this Agreement
will be interpreted according to the laws of Florida. No remedy herein conferred upon
any party is intended to be exclusive of any other remedy, and each and every other
remedy given hereunder or now or hereafter existing at law or in equity or by statute or
otherwise. No single or partial exercise by any party of any right, power, or remedy
hereunder shall preclude any other further exercise thereof. Waiver of a default shall
not be deemed a waiver of any subsequent defaults. In any judicial action brought by
either party for the enforcement of the obligations of the other party or for the
interpretation of this Agreement, the prevailing party shall be entitled to recover
reasonable attorney’s fees and court costs.
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SECTION 16. ASSIGNMENT.
This Interlocal Agreement shall not be assigned by either party without the prior
written approval of the other.
SECTION 17. CAPTIONS.
Section and other captions contained in this Interlocal Agreement are provided
for reference purposes only and are in no way intended to describe, interpret, define, or
limit the scope, extent or intent of this Interlocal Agreement, or any provision hereto.
SECTION 18. EXHIBIT.
Exhibit “A” to this Interlocal Agreement shall be deemed to be incorporated into
this Interlocal Agreement as if fully set forth verbatim into the body of this Interlocal
Agreement.
SECTION 19. ENTIRE AGREEMENT/MODIFICATION.
This Interlocal Agreement constitutes the complete, integrated and entire
agreement between the parties with respect to the subject matter hereof, and
supersedes any and all prior agreements, arrangements, contracts or understandings,
whether oral or written, between the parties
all of which, if any, have been integrated
herein. This Agreement may not be amended, changed, or modified and material
provisions hereunder may not be waived, except by a written document, of equal dignity
herewith and signed by all parties to this Interlocal Agreement.
SECTION 20. THIRD PARTY BENEFICIARIES.
This Interlocal Agreement is solely for the benefit of the formal parties to this
Interlocal Agreement, and no right or cause of action shall accrue by reason hereof to
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or for the benefit of any other third party not a formal party hereto. Nothing in this
Interlocal Agreement, expressed or implied, is intended or shall be construed to confer
upon or give any person or entity any right, remedy or claim under or by reason of this
Interlocal Agreement or any provisions or conditions hereof, other than the parties
hereto and their respective representatives, successors and assigns as set forth herein.
SECTION 21. SEVERABILITY.
If any one (1) or more of the covenants or provisions of this Interlocal Agreement
shall be held to be contrary to any express provision of law or contrary to the policy of
express law, though not expressly prohibited, or against public policy, or shall, for any
reason whatsoever, be held invalid, then such covenants or provisions shall be null and
void, shall be deemed separable form the remaining covenants or provisions of this
Interlocal Agreement, and shall, in no way, affect the validity of the remaining covenants
or provisions of this Interlocal Agreement; provided, however, that the public interest in
the terms set forth herein is not substantially adversely impacted.
SECTION 22. EFFECTIVE DATE.
This Interlocal Agreement shall take effect on the date that this Interlocal
Agreement is fully executed by both parties.
SECTION 23. COUNTERPARTS.
This Interlocal Agreement may be executed in any number of counterparts, each
of which shall be deemed an original, but all of which, taken together, shall constitute
one and the same document.
IN WITNESS WHEREOF, the parties have executed this Interlocal Agreement
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on the date stated below their signature.
ATTEST:
CITY OF FLAGLER BEACH
______________________________
Angela Apperson, City Clerk
By: ____________________________
ALICE M. BAKER, Mayor
Date:
____________ , 2006
ATTEST:
CITY OF PALM COAST
_______________________________
Clare M. Hoeni, City Clerk
By:_____________________________
JAMES V. CANFIELD, Mayor
Date:
____________ , 2006
For use and reliance of the Palm Coast
City Council only. Approved as to form and legality.
/s/ William L. Colbert
William L. Colbert, City Attorney
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