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HomeMy WebLinkAbout1973-0055 RESOLUTION 410, BE IT RESOLVED by the Board of County Commissioners of Indian River County, Florida: SECTION 1 This resolution shall be known and may be cited as the "Pebble Bay, Inc., Sewer Franchise." SECTION 2 For the purpose of this Resolution, the following terms, phrases, words and their deriviations shall have the meaning given herein. When not inconsistent with the context, words using the present terms include the future; words in the plural number in- clude the singular and vice versa. The word "Shall" is always mandatory. (a) "County" is Indian River County, a political sub- division of the State of Florida; (b) "Company" is the Grantee of the rights under this franchise, that is, Pebble Bay, Inc.; (c) "Board" is the Board of County Commissioners of the County; (d) "Department" means the Indian River County Utilities Department; (e) "Person" is any person, firm, partnership, associa- tion, corporation, company or oganization of any kind. (f) "Territory" means the area located in Indian River County, Florida, outside the corporate limits of any municipality as the same is more particularly defined and described herein. (g) "Utility" means water or sewer utilities serving subdivisions, apartment and housing complexes, condominium, mobile home or trailer parks, industrial complexes, shopping centers and similar systems serving more than one building. Systems serving motels, parks, hospitals, schools and single commercial or in- dustrial buildings are excluded. "Utility" includes wells, pumps, tanks, treatment facilities, distribution systems, water meters, disposal facilities, force mains, pump stations, collection systems, service lines and pipes, real estate and easements ® necessary to such systems and includes every person, corporation, lessee, trustee, or receiver owning, operating, managing or con- ® trolling a utility system or proposing construction of a system or who is providing or proposes to provide water or sewer service to 40 � the public. SECTION 3 There is hereby granted by the County to the Company the exclusive franchise, right and privilege to erect, construct, operate and maintain a sewer system within the prescribed terri- tory as herein provided and for these purposes to sell sewerage collection and treatment services within the territory and for these purposes to establish the necessary facilities and equipment and to lay and maintain the necessary lines, pipes, mains and other appurtenances necessary therefor in, along, under and across the public alleys, streets, roads, highways and other public places of the County; provided, however, that the County reserves the right to permit the use of such public places for any and all other lawful purposes and subject always to the paramount right of the public in and to such public places. SECTION 4 The territory in which this franchise shall be applicable is all that part of Indian River County, Florida, located within the following described boundary lines, to -wit: Government Lot 1, Section 20, West of State Road AlA; all of Government Lot 10, Section 19, West of State Road AlA and the South 1/2 of Government Lot 9, West of State Road AlA, all being in Town- ship 32 South, Range 40 East, Indian River County, Florida. SECTION 5 The Company shall at all times during the life of this franchise be subject to all lawful exercise of the police power and regulatory authority of the County and to such regulation as the County shall hereafter by resolution or ordinance provide. SECTION 6 It is expressly understood and agreed by and between the Company and the County that the Company shall save the County and members of the Board harmless from any loss sustained by the County on account of any suit, judgment, execution, claim or 40 M demand whatsoever resulting from negligences on the part of the Company in the construction, operation or maintenance under the ® M terms of this franchise. The parties agree that in the construc- tion of this section, the claim of any person resulting from neg- ® M ligence on the part of the Company may be prosecuted directly by such person against the Company as if no governmental immunity ac- crued to the County by virtues of the Company's use of a public place of the County. The County shall notify the Company promptly after presentation of any claim or demand. SECTION 7 The Company shall maintain and operate its plant and system and render efficient service in accordance with the rules and regulations as are or may be set forth by the Board from time to time. Additionally the Company shall comply with all require- ments of the Department of Health and Rehabilitative Services, Division of Health, the Department of Pollution Control and appro- priate planning agencies relative to construction, design, operation, capacity, maintenance and expansion. The right is hereby reserved to the County to adopt, in addition to the provisions herein con- tained and existing applicable resolutions or laws, such additional regulations as it shall find necessary in the exercise of the police power and lawful authority vested in said County, provided that such regulations shall be reasonable and not in conflict with the rights herein granted and not in conflict with the laws of the State of Florida. The County shall have the right to supervise all construction or installation work performed and to make such inspection as it shall find necessary to insure compliance with all governing regulations. Upon the termination of this franchise, the Company shall grant and deliver to the County, upon demand of the County, all of its facilities, system, easements and rights appurtenant thereto lying within Indian River County without charge to the County. In the event any part or all of the terri- tory covered by this franchise shall be hereinafter incorporated in the limits of any municipality of the State of Florida, then in such event the Company agrees as a part of the consideration of the granting of this franchise that said municipality is herewith 41- granted the right, power and authority to acquire all the property, 40 assets and facilities of the Company used in its services under this franchise. The amount to be paid by the city to the Company ® shall be determined under the law of the State of Florida provided in eminent domain proceedings. SECTION 8 Company shall commence construction of its sanitary sewer treatment and collection system within six (6) months from date and shall complete the same within 18 months from the date of this resolution, otherwise the franchise created hereby shall become void and of no further force or effect. All the facilities of the Company shall be constructed only in accordance with plans and specifications approved by the State Board of Health of the State of Florida and the quantity and quality of sewerage treatment shall at all times be and remain not inferior to the rules, regu- lations and standards now or hereafter adopted by the State Board of Health. Whenever it is necessary to shut off or interrupt ser- vices for the purpose of making repairs or installations, the Com- pany shall do so at such time as will cause the least amount of inconvenience to its consumers and unless such repairs are unfore- seen and immediately necessary, it shall give reasonable notice thereof to its consumers. SECTION 9 a. The Company shall have the authority to promulgate such rules, regulations, terms and conditions covering the conduct of its business as shall be reasonably necessary to enable the Company to exercise its rights and perform its obligations under this franchise, and to issue an uninterrupted service to such and all of its consumers; provided, however, that such rules, regula- tions, terms and conditions shall not be in conflict with the provisions hereof or with the laws of the State of Florida and all of the same shall be subject to the approval of the Board. b. At all times herein where discretionary power is left with the Board of CountyCommissioners, the Company, before discre- . 25- tionary action is taken by the Board of County Commissioners, can request said Board that a group of arbitrators and such group shall ®� consist of: 1. Consulting Engineers �� 2. Company Engineer 3. One person selected by the two above persons and this Board of Arbitrators shall make recommendations to the Board of County Commissioners but such recommendations are not mandatory. Any final decision the arbitrators or Board may have, with respect to this franchise can be appealed to the Circuit Court of Indian River County by either party. SECTION 10 All pipes, mains, lift stations, pumps, valves and other fixtures laid or placed by the Company shall be so located in the public places in the County as not to obstruct or interfere with any other uses made of such public places already installed. The Company shall whenever practicable avoid interfering with the use of any street, alley or other highway where the paving or surface of the same would be disturbed. In case of any disturbance of pavement, sidewalk, driveway or other surfacing, the Company shall at its own cost and expense and in a manner approved by the County Engineers, replace and restore all such surface so disturbed in as good condition as before said work was commenced and shall maintain the restoration in an approved condition for a period of one year. In the event that any time the County shall lawfully elect to alter or change the grade of or relocate or widen or otherwise change any such public way, the Company shall, upon reasonable notice by the County, remove, relay and relocate its fixtures at its own expense. The Company shall not locate any of its facili- ties nor do any construction which would create any obstructions or conditions which are or may become dangerous to the traveling public. In the event any such public place under or upon which the Company shall have located its facilities shall be closed, abandoned, vacated or discontinued, the Board may terminate such easement or license of the Company thereto, provided, however, in the event of this termination of easement, any person, except the County, requesting such termination shall pay to the Company, ®M in advance, its costs of removal and relocation of the removed facilities in order to continue its service as theretofore existing, ® or the County shall retain an easement not less than ten feet in width for the benefit of the Company and its facilities. SECTION 11 The Company shall not as to rates, charges, services facilities, rules, regulations or in any other respect make or grant any preference or advantage to any person nor subject any person to any prejudice or disadvantage, provided that nothing herein shall prohibit the establishment of a graduated scale of charges and classified rate schedule to which any consumer coming within such classification would be entitled. SECTION 12 a. The Company shall furnish, supply, install and make available its sewer collection and treatment system to any and all persons within the territory making demand, therefor, and shall provide such demanding person with its services and facilities within 90 days from the date of such demand; provided, however, that the Board may, upon application of the Company, extend the time for providing such service to such demanding person. In the event the Company fails to provide its services and facilities to any area within the territory within the time provided, then in such event the County may by resolution of the Board limit, re- strict and confine the territory to that area then being serviced by the Company or such greater area as the Board shall determine and thereafter the territory shall be the only area set forth, defined and provided by the Board and the provision of this fran- chise shall not extend beyond the limits of the area so restricted and defined. b. The Company shall not be required to furnish, supply, install and make available its sewer collection and treatment system to any person within the territory as hereinafter set forth, unless the same may be done at such a cost to the Company as shall make the addition proposed, financially and physically feasible. Financially feasible shall mean that with a fair and reasonable rate to be charged by the Company for all the services under this -27- franchise, to the end, that such rate will produce to the Company a sum sufficient to meet all necessary costs of the services; in- cluding a fair rate of return on the net valuation of its property devoted thereto, under efficient and economical management. The burden of showing that a prospective service to the area is not financially feasible shall be the burden of the Company. SECTION 13 The Company shall not sell or transfer its plant or system to another nor transfer any rights under this franchise to another without the approval of the Board and provided, further, that no such sale or transfer after such approval shall be effec- tive until the vendee, assignee or lessee has filed with the Board an instrument in writing reciting the fact of such transfer and accepting the terms of this franchise and agreeing to perform all of the conditions thereof. In any event this franchise shall not be transferrable and assignable until notice or request for transfer and assignment shall be given by the Company to the Board in writing, accompanied by a request from the proposed trans- feree, which application shall contain information concerning the financial status and other qualifications of the proposed trans- feree and such other information as the Board may require. A public hearing shall be held on such request of which notice shall be given by publication in a newspaper regularly published in the County at least one time not more than one month nor less than one week preceding such hearing. Certified proof of publication of such notice shall be filed with the Board. Said hearing may thereafter be continued from time to time as determined by the Board. The Board will, however, approve or disapprove such sale or transfer within ninety (90) days from the date of said public hearing. The consent by the Board to any assignment of this fran- chise shall not unreasonably be withheld. SECTION 14 The rates charged by the Company for its service hereunder shall be fair and reasonable and designed to meet all necessary costs of the service, including a fair rate of return on the net valuation of its properties devoted thereto under efficient and economical management. The Company agrees that it shall be subject to all authority now or hereafter possessed by the County or any other regulatory body having competent jurisdiction to fix just, reasonable and compensatory rates. When this franchise takes effect, the Company shall have authority to charge and collect not to exceed the rates currently being charged by the City of Vero Beach to the customers for sewer service. Company's rates shall at all times be subject to the review and approval of Indian River County's Board of County Commissioners and no change may be made by Company in the basis of its rates without first making applica- tion therefor and public hearing thereon. SECTION 15 The County shall have access at all reasonable hours to all of the Company's plans, contracts, engineering data, accounting, financial, statistical, consumer and service records relating to the property and the operation of the Company and to all other records, required to be kept hereunder, and it shall file such accounting reports and data with the County when required. SECTION 16 The Company shall at all times maintain public liability and property damage insurance in such amounts as shall be required from time to time by the Board in accordance with good business practices as determined by safe business standards as established by the Board for the protection of the County and the general public and for any liability which may result from any action of the Company. The County shall be named as an additional insured on all such policies of insurance. if any person serviced by the Company under this franchise complains to the Board concerning rates, charges and/or operations of such utility and the Company, after request is made upon it by the Board, fails to satisfy or remedy such complaints or objections or fails to satisfy the Board that said complaint or objection is not proper, the Board may thereupon, after due notice to such utility, schedule a hearing concerning such complaint or objection and the Board may review the rates and charges set and charged by the Company for the ser- vices which it furnishes or the nature and character of the service it furnishes or the quality or services furnished. If the Board 4b enters its order pursuant to such a hearing and the Company feels it is aggrieved by such order, the Company may seek review of the Board's action by proceedings in the Circuit Court of the County; otherwise, the Company shall promptly comply with the order of the Board. Any person served by the Company shall have the right to terminate Company's service and furnish such person's own sewerage system to property owned by such person. SECTION 17 Should the Company desire to increase any charges hereto- fore established and approved by the Board, then the Company shall notify the Board in writing, setting forth a schedule of rates and charges which it proposes. A public hearing shall be held on such request, of which notice shall be given by publication in a news- paper regularly published in said County at least one time not more than one month nor less than one week preceding such hearing. Certified proof of publication of such notice shall be filed with the Board. Said hearing may thereafter be continued from time to time as determined by the Board. The Board will, however, ap- prove or disapprove said increase in rates within ninety (90) days of said public hearing. If the Board enters order pursuant to such hearing and the Company or any person feels aggrieved by such order, then the Company or such person may seek review of the Board's action by proceedings in the Circuit Court of the County. SECTION 18 Prior to the Company placing any of its facilities in any of the public places as herein authorized, the Company shall make application to and obtain a permit from the Indian River County Utilities Department authorizing said construction. The County shall have the right when special circumstances exist to determine the time in which such construction shall be done. SECTION 19 If the Company fails or refuses to promptly and faith- fully keep, perform and abide by each and all of the terms and conditions of this franchise, then the Board shall give the Com- pany written notice of such dificiencies or defaults and a reasonable time within which the Company shall remedy the same, which notice ® shall specify the deficiency or default. If the Company fails to remedy such deficiency or default- within the time required by ® the notice from the Board, the Board may thereafter schedule a hearing concerning the same with reasonable notice thereof to ® the Company and after such hearing at which all interested parties shall be heard, the Board may further limit or restrict this fran- chise or may terminate and cancel the same in whole or in part if proper reasons hereby are found by the Board. If the Board enters order pursuant to such hearing and the Company or any other person feels aggrieved by such order, the utility or such other person may seek review of the Board's action by proceedings in the Circuit Court of the County. SECTION 20 No landowner shall be required to hook up or use the sewerage collection and treatment services as provided in this franchise, provided, however, if such landowner requests services and purchases services from the Company, then the provisions of this franchise shall apply to such landowner or the land involved, and the above rights in respect to such landowner shall cease and terminate. This franchise shall not affect, limit or restrict the rights or privileges as set forth and contained in any license issued to any utility heretofore granted by the Board pursuant to Section 125.92, Florida Statutes. SECTION 21 The franchise and rights herein granted shall take ef- fect and be in force from and after the time of the adoption of this resolution by the Board and shall continue in force and effect until such time as the County may install or acquire its own sewerage collection and treatment system and supplies the same at wholesale for resale to individual customers; provided, however, that within sixty days from the time of the adoption of this resolution, the Company shall file with the Board its written acceptance of this franchise and all of its terms and conditions and provide further that if such acceptance is not filed within the time specified, then the provisions of this franchise shall be null and void. c. nnm _r nn If any word, section, clause or part of this resolu- tion is held invalid, such portion shall be deemed a separate and ®M independent part and the same shall not invalidate the remainder. IN WITNESS WHEREOF, the Board of County Commissioners ®'s of Indian River County, Florida, has caused this franchise to be executed in the name of the County of Indian River by the Chairman • IN of the Board of County Commissioners, and its seal to be affixed and attested by its Clerk, all pursuant to the resolution of the Board of County Commissioners adopted on the /e d day of A.D. 197 Signed sealed and delivered in the presenc of: COUNTY OF INDI N RIVER FLORIDA BY C' _Z As Chairman of the Boar of County Commissioners Attest >% 41-112,-si.�� ACCEPTANCE OF FRANCHISE Pebble Bay, Inc., a Florida corporation, does hereby accept the foregoing franchise and for itself and its successors and assigns, does hereby covenant and agree to comply with and abide by all of the terms, conditions and provisions therein set forth and contained. DATED this day of .7 ,,,7. , 197,J. (Corp. Seal) State of County Notary Public in and for said State andCounty. 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