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Home My WebLink About2012-107 r3 . A . AGREEMENT RELATING TO a 0 1 a - i D 7 ANNUAL FIRE PROTECTION CHARGE THIS AGREEMENT is entered into as of the5th day of June , 2012 , by and between THE CITY OF FELLSMERE , a municipality organized under the laws of the State of Florida ("FELLSMERE") and INDIAN RIVER COUNTY , a political subdivision of the State of Florida ( " COUNTY") . WHEREAS , section 78 - 83 (h) of the FELLSMERE Code of Ordinances provides that an annual fire protection charge may be imposed on customers of the water and wastewater system ; and WHEREAS , since the mid4990s , FELLSMERE has imposed an annual fire protection charge upon the Indian River County Emergency Services District ("ESD") , a dependent special district of COUNTY, which charge was initially in the amount of $ 170 per hydrant and is currently in the amount of $ 225 per hydrant and WHEREAS , since the mid- 1990s , ESD has paid the annual fire protection charge with funds provided by ad valorem taxes levied by COUNTY ; WHEREAS , in 2009 , COUNTY objected to and refused to pay the annual fire protection charge , resulting in proceedings before the FELLSMERE Code Enforcement Special Master, and judicial appellate proceedings , which were resolved in favor of the validity of the annual fire protection charge ( " Final Order") ; and WHEREAS , in the interest of reducing the financial burden upon the residents and taxpayers of FELLSMERE and COUNTY , the parties have agreed to the operational and financial arrangements set forth herein, in lieu of further annual fire protection charges , NOW , THEREFORE , in consideration of the mutual undertakings herein and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties agree , as follows : 1 . Recitals . The above recitals are true and correct and are incorporated herein . 2 . Operational and Financial Responsibilities . Commencing October 1 , 2012 , and for each fiscal year thereafter during the term of this Agreement, (a) COUNTY shall , at its sole expense , (i) maintain , inspect and repair all fire hydrants located in and owned by FELLSMERE , Page I of' 4 and (ii) pay to FELLSMERE an annual fire protection charge in an amount equal to the product of fifty one dollars and fifty cents ($ 51 . 50 ) multiplied by the number of fire hydrants located in and owned by FELLSMERE as of the invoice date . Such amount shall be paid within thirty (30 ) days of receipt of the invoice . Commencing October 1 , 2017 , the fifty one dollars and fifty cents ($ 51 . 50) per hydrant payment shall be increased by ten percent ( 10%) . FELLSMERE acknowledges that COUNTY will levy ad valorem taxes on behalf of ESD to provide funds to pay for the operational and financial responsibilities set forth above , and (b) FELLSMERE shall (i) continue to own the hydrants and replace the hydrants at its own expense, to the extent necessary , and (ii) provide and maintain the extra capacity in its water system to provide water for the hydrants . The City and County utility staff shall negotiate an operational agreement or memorandum of understanding outlining specific responsibilities of each party within sixty (60) days of the effective date of this Agreement . I No Annual Fire Protection Charge. Provided COUNTY performs its operational and financial responsibilities set forth in paragraph 2 above , FELLSMERE shall not assess or impose , and COUNTY shall not be required to pay, an annual fire protection charge in excess of the charge set forth in paragraph 2 above . 4 . Privately Owned Hydrants . There are currently 21 privately owned hydrants located in FELLSMERE which FELLSMERE maintains , inspects , repairs and replaces for an annual charge to the owner of $225 per hydrant per year . During the term of this Agreement , COUNTY shall , if requested by FELLSMERE and as a subcontractor to FELLSMERE , maintain, inspect and repair such hydrants and any new, similarly situated hydrants . COUNTY shall charge seventy dollars ( $ 70 . 00 ) per hydrant per year for such services , which FELLSMERE shall bill to and collect from the private owner, and remit to COUNTY . Commencing October 1 , 2017 , the seventy dollars ($ 70 . 00 ) per hydrant payment shall be increased by ten percent ( 10 %) . COUNTY shall not be responsible for replacement of such hydrants . 5 . Final Order. Nothing herein shall operate to diminish or eliminate the precedential value of the Final Order . 6 . Hold Harmless . To the extent allowed by law, each party shall indemnify and hold the other harmless from all claims brought during the term of this Agreement by third parties , including reasonable attorneys ' fees , court costs and expenses , which may arise out of or be attributed to the negligence of the indemnitor ' s employees in the performance of any of the covenants , agreements , terms , or conditions to be performed or complied with under this Agreement . Neither party ' s liability to the other shall include punitive damages or interest for the period before judgment . Nothing contained herein shall be construed as a waiver of any immunity from , or limitation of, liability either party has under the Doctrine of Sovereign Page 2 of 4 Immunity of Section 768 . 28 Florida Statutes . Additionally , neither party shall be liable pursuant to this indemnity to pay a claim or a judgment by any one person or any claim or judgment, or portions thereof which , when totaled with all other claims or judgments paid arising out of the same incident or occurrence exceeds the limits of liability as set forth in Section 768 . 28 (5 ) Florida Statutes, provided, that the payment of said claim(s) shall be further limited to the amount of insurance proceeds paid for such claim( s) covered by this indemnification . This indemnity specifically excludes any requirement for one party to indemnify the other party for the other party ' s negligence or to assume any liability for the other party ' s negligence as provided in Section 768 . 28 ( 19 ) Florida Statutes . 7 . Term . The term of this Agreement shall be ten ( 10 ) fiscal years ( October 1 through September 30 ) , commencing with FY 201243 and ending with FY 2021 - 22 . During the final fiscal year of the term , the parties shall meet and discuss possible renewal of the agreement. Any renewal shall be set forth in writing signed by both parties . Either party may terminate this Agreement by written notice to the other received no later than May 31 of any year within the term of this Agreement, which termination shall be effective September 30 of the year notice is given . 8 . Interpretation . This Agreement has been submitted to the equal review and scrutiny of both parties , and both parties agree that it fairly and accurately sets forth the terms their agreement . In any dispute between the parties , the agreement shall be given a fair and reasonable interpretation , without consideration or weight being given to the fact that it was initially prepared or drafted by any particular party . 9 . Governing Law . This Agreement shall be governed by and interpreted in accordance with the laws of the State of Florida. 10 . Jurisdiction and Venue. Exclusive jurisdiction for any proceedings arising out of or relating to this Agreement shall be in the circuit court of the State of Florida . Venue shall be in Indian River County , Florida. 11 . Attorney ' s Fees , etc. In any legal proceedings arising out of or relating in any way to this Agreement, the prevailing party shall recover from the non-prevailing party all fees , costs and expenses, including, without limitation, reasonable attorney ' s fees at all trial , appellate and collection levels . 12 . Waiver of Jury Trial. EACH PARTY HEREBY KNOWINGLY AND INTENTIONALLY WAIVES ITS RIGHT TO TRIAL BY JURY OF ANY ISSUE ARISING Page 3 of 4 OUT OF OR RELATING IN ANY WAY TO THIS AGREEMENT . ALL SUCH ISSUES SHALL BE RESOLVED BY NON-JURY TRIAL . 13 ., Amendment. This Agreement may be amended or modified only by subsequent written agreement signed by all parties . 14 . Successors and Assigns . This Agreement shall be binding upon the parties and their successors and assigns . INDIAN RIVER COUNTY THE CITY OF FELLSMERE By its Board of County Commissioners By its City Council By : G By : z Gary C . A heeler, Chairman S sa dams , Mayor Date approved by BCC : ,-rump 5 , 2012 . Date approved by Council : 2012 . Nl/S ATTEST : J . K . Barton , Clerk c o�� " " U/ 4 . 's* r _ By : L_ o4� too Deputy Clerk ° y ' Approved : ° RCOUN� �:��`�+�• a " •rn loop • un +e of Y -JP�1r,t �� • L 1 ,l°oseph A . Baird, County Adn�iinistrator ✓ . Approved as to form and legal sufficiency . Alan S . P ackwich; 'Sr., County Attorney Page 4 of 4