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reason, $2,270 paid May 21, 1985 was not included in the February, 1986
<br />transfer and remains in the original escrow account (114) . Once the entire
<br />matter is finally resolved the current amount ($6,916.16) in that account
<br />should also be transferred.
<br />The separate repair and/or replacement account contained a balance of
<br />$30,381.18 on June 5, 1985 (188).
<br />Conclusion: There is no question that payments were not made in a timely
<br />fashion by Florida Atlantic nor were the plant capacity adiustments applied by.
<br />the county. It appears, in my opinion, in the early 1980's the county was
<br />beginning to establish a total utility system and an organization to administer
<br />such a system, including existing franchises. Franchise administration
<br />previously, in my opinion, appeared to be very weak at best. With the
<br />staffing changes in 1982, the county began and continued to address the
<br />franchise payments that were in arrears. The plant capacity fee modifications
<br />could. have and should have, in my opinion, been applied. However, in
<br />discussing the matter with staff l can fully appreciate the magnitude of the
<br />effort in rectifying the delinquency problem with this and other franchises.
<br />Additionally, the provisions of the franchise Resolution 80-88 stipulate that
<br />the .plant capacity charges "may" be escalated and, therefore, in my opinion,
<br />there was no absolute legal requirement to do so.
<br />There can be speculation as to the amounts that would have been in the
<br />account if certain actions had been taken by the County. However, the
<br />"inefficiency" of the County in the early 1980's does not, in my opinion,
<br />create a legal liability. The fact remains that $142,707.01 was in the escrow
<br />account on June 5, 1985 and the repair and/or replacement
<br />current.
<br />Vesting
<br />account was
<br />As stated previously, Ordinances 80-21 and 80-22 contained the basic fee
<br />structures that were incorporated into the Village Green Phase IV franchise
<br />(Resolution 80-88) in 1980. Included in both ordinances are qualifying
<br />references relating to the economic feasibility of providing the service (18,
<br />21, 27). The developer, Florida Atlantic, was responsible for payment of the
<br />fees and all such payments were made by the developer under the 1980
<br />franchise. By the mid 1980's, the Utilities Department had determined that
<br />the revenues generated from the fee structure were not sufficient to make
<br />connection economically feasible. A study was performed by Arthur Young
<br />specifically on impact fees and an increased rate structure adopted by
<br />ordinance 85-3 on January 9, 1985. In 1985 the County maintained that the
<br />then current impact fees should be applied at the time the park hooked into
<br />the system (67). The developer disagreed. The Commission, at the April 3,
<br />1985 meeting, authorized the County Attorney to take whatever steps
<br />necessary to resolve the disputed portions of the Phase IV franchise,
<br />Including filing for Declaratory Relief if necessary (66 - 72) . Subsequently,
<br />negotiations were initiated between the County, Florida Atlantic, and Realcor,
<br />the perspective purchaser. The resulting agreement, approved by the
<br />Commission at the June 5, 1985 public hearing, addressed the issue and in my
<br />opinion resolved that particular matter (73 - 105) . Florida Atlantic released
<br />the escrow funds and Realcor relinquished any right to the funds, agreeing
<br />that the funds could be used by the County for any legal purpose.
<br />Furthermore, the new franchise with Realcor, authorized by Resolution 85-61
<br />(78, 92, 94 - 98), prescribed the method by which current wastewater impact
<br />fees would be paid over a ten year period. The developer was to pay
<br />wastewater impact fees on 100 ERU's within the first 18 months. The
<br />developer also is required to pay for each remaining ERU as each existing
<br />pad changes tenants. The developer is responsible for paying one ERU for
<br />the total number of pads within 10 years. The agreement states that water
<br />will not be addressed until June, 1995 (97).
<br />Conclusion: In my opinion, there is no vesting under the prior franchise.
<br />The original franchise agreement was with the developer, Florida Atlantic.
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