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HomeMy WebLinkAbout1988-035IV] RESOLUTION NO. 88-35 FRANCHISE AGREEMENT BETWEEN INDIAN RIVER COUNTY AND ELL -CAP 32 -- V .RO BEACH This Franchise Agreement dated this 17th day of May 41 1988, by and between INDIAN RIVER COUNTY, a political subdivision of the State of Florida, 1840 - 25th Street, Vero Beach, Florida 32960, (305) 567-8000, (hereinafter referred to as "County") and Ell -Cap 32 -- VERO BEACH (hereinafter referred to as "Utility") WITNESSETH: That for and in consideration of the premises and other good and valuable consideration, it is hereby RESOLVED by the Board of County Commissioners of Indian River County, Florida, that: SECTION I TITLE This Resolution shall be known and may be cited 'as the _ E1.L,-CAP_32--VFRn RFArH SYSTEM FRANCHISE. SECTION II DEFINITIONS For the purposes of this Resolution, the following terms, phrases, words, and their derivations shall have the meaning given herein. A. "Person" is any person, firm, partnership, association, corporation, company, or organization of any kind. B. The word "shall" is always mandatory. C. "Water System/Systems" shall mean and include any real estate, attachments, fixtures, impounded water, water mains, services, valves, meters, plant, wells, pipes, tanks, hydrants, pumps, reservoirs, systems, facility, or other property, real or personal, used or useful or having the I present capacity for future use in connection with the collection, obtaining, treatment, supplying, and distribution of water to the public for human consumption, fire protection, irrigation, and consumption by residential, business or industry, and, without limiting the generality of the foregoing, shall embrace all necessary appurtenances and equipment and shall include all property, rights, easements, licenses, and franchises relating to any such system and deemed necessary or convenient for the operation thereof. D. "Wastewater System/Systems" shall mean and include any plant, system, facility, or property used or useful or having the present capacity for the future use in connection with the collection, treatment, purification, or disposal of wastewater effluent and residue for the public and without limiting the generality of the foregoing definition shall embrace treatment plants, pumping stations, intercepting sewers, pressure lines, mains, laterals, and all necessary appurtenances and equipment and shall include all property rights, easements, and franchises relating to any such system and deemed necessary or convenient for the operation thereof. E. "Service" means supplying to a user the water system and/or wastewater system granted by this franchise. F. "Contribution in aid of construction" shall mean nonrefundable donations or contributions in cash or properties from any person for construction or property -addition purposes. SECTION III GRANTING OF FRANCHISE A. There is hereby granted by the County to the Utility for 7 years, the non-exclusive franchise, right, and privilege to erect, construct, operate, and maintain a water and wastewater system within the territory as provided in Section IV, and to lay and maintain the necessary lines, pipes, mains, and other appurtenances necessary therefore in, along, under, and across the public alleys, streets, roads, and highways, of the County; provided, however, that the County reserves the right to issue permits for the use of such public places for any other lawful purposes and subject always to the paramount right of the public in and to such public places. ■ 11 . B. The Utility shall be subject to all lawful exercise of the Police power and other reasonable regulatory authority of 111® the County including the right to increase fees and charges justified. �Iwhen C. The Utility shall supply the County with copies of its SII® Department of Environmental Regulation (DER) monthly I operating reports and trouble reports, if any. D. The County shall have the right, but not the duty, to II® inspect all construction or installation work performed by I the Utility to ensure that the construction meets County specifications. III® E. The Utility understands that the County is now considering the extension of the County water and/or wastewater system to this franchise area; therefore, this franchise shall be considered to be temporary and upon the demand of the County, Utility shall discontinue its service and immediately connect to the County system and shall pay to the County all the sums due under the County's then existing standard schedule of rates and fees. SECTION IV TERRITORY/FRANCHISE AREA 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: See Exhibit "A" attached hereto and incorporated herein. SECTION V HOLD HARMLESS CLAUSE The Utility shall save the County and members of the Board of County Commissioners harmless from any loss sustained by the County on account of any suit, judgment, execution, claim, or demand whatsoever resulting from any acts whatsoever including negligent, intentional, wanton, willful, or reckless acts on the part of the Utility in the construction, operation, or maintenance of the Utility system under the terms of this franchise. The parties agree that in the inter- pretation of this section, the claim of any person resulting from negligence on the part of the Utility may be prosecuted directly by such person against the Utility. The County shall notify the Utility promptly after presentation of any claim or demand. II® (I0 ;1110 SECTION VI CERTIFICATE OF COMPi I NCE A. The Utility shall render efficient service in accordance with the rules and regulations as are or may be set forth by the DER and the County from time to time, which shall include "Construction Specification Water Treatment/ Distribution and Sewage Treatment/Collection Facilities" promulgated by Indian River County Utilities Department, July 1980, as amended. Before issuing a construction permit the Utility,s project engineers shall certify to the County that the requisite design standards will be met by completion of the project. The Utility shall submit this certification to the County for review along with the DER applications and plans. Submission to the County may occur simultaneously with submission to the DER. Upon approval by the County of the plant and system a construction permit may be issued to the Utility. B. Upon the completion of all construction of the Utility, the project engineer for the Utility shall certify, under seal, that the system has been constructed substantially in accordance with the plans and specifications previously approved and that the systems meet all of the standards required by the County. The certification shall include submission to the County of two sets of "as -built" (as defined by the County) drawings, consisting of one set in reproducible vellums and one set of regular blueline prints; and that the systems meet all of the standards required by the County, including pressure and leakage tests, chlorination and bacteriological tests, and infiltration and exfiltration tests. No service is to be provided to customers until such time as the County issues an operating permit. The Utility shall grant necessary easements to the County without charge to connect the Utility to the County System. The Utility agrees to pay all other fees which may be applicable during the operation of the system. SECTION VII CERTIFICATION OF OPERATIONS AND MAINTENANCE A. The operation and maintenance of the Utility shall at all times be not inferior to the quality standards for public water distribution and public sewage collection and other rules, regulations, and standards now or hereafter adopted by the DER, or other goveri.mental body having jurisdiction, including Indian River County. B. The Utility shall supply the County with an annual report of operations and maintenance certified by the Utility Engineer, who must be registered in the State of Florida. SECTION VIII UTILITY'S AUTHORITY TO PROMULGATE NECESSARY PROCEDURES '"' The Utility shall have the authority to promulgate such rules, regulations, terms, and conditions covering the conduct of its business as shall be necessary to enable the Utility to exercise its rights and perform its obligations under this franchise and to issue uninterrupted service to each of its consumers. Such rules, regulations, terms, and conditions shall not be in conflict with the provisions of this franchise or with the laws of the State of Florida and all the same shall be subject to the approval of the County. SECTION IX DEDICATED EASEMENTS All pipes, pumps, hydrants, mains, valves, blowoffs, sewer mains, manholes, and other fixtures laid or placed by the Utility for the Utility shall be so located in the dedicated easements in the County after approval by the County Engineer so as not to obstruct or interfere with other uses made of such public places already installed. The Utility 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 county -owned pavement, sidewalk, driveway, or other surfacing, the Utility shall at its own cost and expense and in a manner approved by the County Engineer, replace and restore all such surfaces so disturbed in as good condition as before the work was commenced and shall maintain the restoration in an approved condition for a period of one year. If the County shall elect to alter or change the grade or to relocate or widen or otherwise change any such County -owned right -of way, the Utility shall, upon reasonable notice by the County, remove, relay, and relocate its fixtures at the Utility's expense. The Utility shall not locate any of its facilities or 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 Utility shall have located its facilities shall be closed, abandoned, vacated, or discontinued, the County may terminate such easement or license of the Utility. The party requesting such termination (if other than the County) shall pay in advance to the Utility its cost of removal and relocation of the removed facilities in order to continue its service as theretofore El existing, or the County shall retain an easement not less than fifteen feet in width for the benefit of the Utility and its facilities. SECTION X SERVICE REOUIREMENTa The Utility shall provide service within the franchise territory on a non-discriminatory basis as if it were regulated under Chapter 367 Fla. Stat., except to the extent that said provisions are in conflict with the provisions of this franclise. SECTION XI AVAILABILITY OF SERVICE A. Subject to the provisions of Paragraph 2 of this section, the Utility shall make its service available to any and all persons within the franchise territory. The County may, upon application of the Utility, extend time for providing such service to such demanding person. In the event the Utility fails to provide its services and facilities to any area within the franchise territory within the time specified by the County, then the County may by resolution limit, restrict, and confine the territory to that area then being serviced by the Utility or such greater area as the County shall determine. B. The Utility shall not be required to make its utility system available to any person within the franchise area unless the same may be done at such a cost to the Utility as shall make the addition proposed financially feasible. "Financially feasible" shall mean that a fair and reasonable rate of return will be realized by the Utility for all its services under this franchise under efficient and economical management. The burden of showing that prospective service to the area is not financially feasible shall be on the Utility. Such proof shall be made by the Utility within 30 days from receipt of a written request by the County. SECTION XII TRANSFER OF OWNERSHIP A. The Utility or its shareholders shall not sell or transfer its plants, systems, or corporate ownership or transfer any rights under this franchise by sale of stock or otherwise to another without the approval of the County. No such sale or transfer after such approval shall be effective until the vendee, assignee, or lessee has filed with the County an instrument in writing reciting the fact of such transfer and accepting the terms of this franchise and agreeing to perform all of its conditions. In any event, this franchise shall not be transferable and assignable until notice or request for transfer and assignment has been given by the Utility to the County in writing accompanied by a request from the proposed transferee, which application shall contain information concerning the financial status and other qualifications of the proposed transferee as the County shall require. B. A public hearing may be held on such request after notice has been given by publication in a newspaper regularly published in the County at least one time not more than one month or less than one week preceding such hearing. Certified proof of publication of such notice shall be filed with the County. C. The County shall act within ninety days upon such request. The consent by the County to any assignment or sale of this franchise shall not be unreasonably withheld. Any sale or transfer by the Utility or partners of the Utility taking place contrary to the terms and conditions of this paragraph shall be considered by the County to be a default by the Utility under this franchise agreement and may subject this franchise to termination. SECTION XIII ADEQUATE CAPACITY Utility warrants adequate capacity to service existing or anticipated customers and agrees not to provide service unless adequate capacity is available at the time any new connection is made. SECTION XIV NOTICE OF ADJUSTMENT OF RATES Upon the initial connection of any customer to the system or upon the reconnection of any customer to the sytem, the Utility shall furnish, by mail, a notice setting forth the rate schedle then in effect and further containing the following statement: "The water/wastewater rates set forth herein have been authorized pursuant to Indian River County Water/Wastewater Franchise Resolution No. , as amended. Said water/wastewater rates are subject to adjustment pursuant to said Resolution upon proper showing by the Utility. Said rates are also subject to adjustment in the event the water/wastewater franchise is terminated and Indian River County commences to furnish water/wastewater service to your property." rli SECTION XV RATE SCHEDULE A. The rates charged by the Utility for its service shall at all times be compensatory, fair, and reasonable, and designed to meet all necessary costs of the service, including a fair rate of return on the Utility's investment under efficient and economical management. The Utility agrees that the County has the authority to enter into this Franchise Agreement and the regulation of the Utility. Utility 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 Utility shall have authority to charge and collect not more than the schedule of rates set at a public hearing for that purpose which shall remain effective until changed or modified as herein provided. In setting said rates, the County shall be guided by the standards set forth in Section 367.081 Florida Statutes. In any event the Utility shall always be responsible for justifying its proposed rates and charges by the submission of accounting and engineering data to the County. Rates and charges may be amended after public hearing upon proper justification by the Utility. B. (1) The approved rates of any utility which already receives all or any portion of its utility service from a governmental agency or from a water or sewer utility regulated by the County and which redistributes that service to its utility customers shall automatically be increased or decreased without hearing upon verified notice to the County 30 days prior to its implementation of the increase or decrease that the rates charged by the governmental agency or other utility have changed. The approved rates of any utility which is subject to an increase or decrease in the rates that it is charged for electric power or the amount of ad valorem taxes assessed against its property shall be increased or decreased by the utility, without action by the County, upon verified notice to the County 30 days prior to its implementation of the increase or decrease that the rates charged by the supplier of the electric power or the taxes imposed by the governmental body have changed. The new rates authorized shall reflect the amount of the ad valorem taxes or rates imposed upon the utility by the governmental agency or other utility. Provisions of this subsection shall not prevent a utility from seeking changes in rates pursuant to the provisions of Section XXIV. (b) Before implementing a change in rates under this subsection, the Utility shall file an affirmation under oath as to the accuracy of the figures and calculations upon which the change in rates is based, and that the change will not cause the Utility to exceed the range of its last authorized rate of return. (c) If, within 24 months of an adjustment in the rates as authorized by this subsection, the County shall find that a utility did thereby exceed the range of its last authorized rate of return, it may order the utility to refund the difference to the rate payers. This provision shall not be construed to require a bond or corporate undertaking not otherwise required. (d) No utility may adjust its rates under this subsection more than two times in any 12 month period. SECTION XVI METER TESTING When requested by a consumer, the Utility shall make a test of the accuracy of any meter; however, before any test is made by the Utility, the required fee shall be deposited with the Utility by the party requesting such a test. Such sum shall be returned if the test shows the meter to be inaccurate in its delivery. If the meter is inaccurate, the meter will be repaired or changed, and should the meter reading calibrate too high, a billing adjustment will be made for no more than the past six months' actual readings. Whenever it is necessary to shut off or interrupt service for the purpose of making repairs or installations, the Utility shall do so at such times as will cause the least amount of inconvenience to its consumers, and, unless such repairs are unforeseen and immediately necessary, it shall give not less than five days' notice to its consumers. SII i 3 SECTION XVII i CONNECTION CHARGFt/CAPACITY DEMAND FEE j Connection charges and capacity demand fees shall be established by public hearing as are held for setting rates. I SECTION XVIII FRANCHISE FEE A. The Utility hereby agrees to pay to the County a franchise fee in the amount of 6% of the Utility's annual gross receipts, or operating costs (which includes the rate of return), whichever is greater. If Utility does not have a rate schedule then it shall pay 6% of its gross operating costs or the sum of $500.00, whichever is greater. The Utility shall pay the 6% franchise fee quarterly. This fee shall be shown as a separate additional charge on utility bills. B. The Utility shall supply the County with a copy of the Utility's annual report and financial statements. All records and all accounting of the Utility shall be in accordance with the Uniform System of Accounts of the National Association of Regulatory Utilities Commissioners and generally accepted accounting principles. Within 90 days after the close of the fiscal year the Utility shall submit financial statements prepared by a CPA. Upon demand by the County the Utility shall submit audited financial statements certified by a CPA and also a letter from a CPA certifying that the 6% franchise fee and any other requested fees have been collected and disbursed in accordance with the terms of this Agreement. SECTION XIX ESCROW CHARGES A. The Utility shall place into a County Escrow account an amount equal to the County impact fee current at the time of the issuance of a Building permit. B. The County will deposit all escrow charges paid for any and all connections in this franchise into an interest bearing account with the interest remaining in the account. C. Should the County at any time take over the system the money remaining in the account shall become the absolute property of the County and the Utility shall have no rights thereto. I SECTION XX COUNTY PURCHASE OPTION The County shall have the right to purchase the Utility's plant at Utility's original construction cost, original land cost, plus costs associated with capital additions and expansions to the plant, less 3-1/2% depreciation per year, and less any contributions in aid of construction. Depreciation' on the system shall be calculated to start at the time the County issues an operating permit as provided in Section VI. Upon acquisition of the system and appurtenant real estate, the County would then own the entire system and would terminate this franchise and provide service to the franchise territory. All accumulated escrow fees would vest in the County. In the event of an acquisition by the County, or the use of the County's own plants, the County shall receive the system free of cost and in good repair, ordinary wear and tear expected. The Utility shall pay to the County all escrowed impact fees upon acquisition or upon connection to County's own plants. SECTION XXI RENEWAL & REPLACEMENT ACCOUNT Two and one-half percent (2-1/20) of the annual operating cost of the Utility shall be' delivered to the County to be placed in an interest bearing renewal and replacement account for purposes of renewal or replacement of the capital assets of the system. The Utility shall fund said account initially with $5,000.00. Interest shall accumulate in the account until the account reaches 250 of the estimated value of the system's original cost; thereafter interest shall be paid to the Utility annually by the County. The funds held by the County shall be used only for renewal or replacement of the system by the Utility as the need arises and approved by the County. The percentage required to be placed in the renewal and replacement account may be amended after review by the County as necessary to maintain a sufficient account balance taking into account the general condition of the system. Upon the County taking over the system all accumulated Renewal and Replacement escrow funds shall vest in the County. The County is granted the right to make necessary repairs using these funds in the event of default on the part of the Utility in maintaining the quality standards established in this franchise. If the County purchases the corporation's utility system then any funds.: in the renewal and replacement account shall vest in the County. M SECTION XXII INSURANCE A. The Utility shall at all times maintain public liability and property damage insurance in such amounts as required by the County. B. The Utility shall cause the County to be duly notified by the insurer in the event of any modifications or deletions of the insurance. The amounts shall be adjusted by the Utility in accordance with good business practices as determined by the County for the protection of the County and the general public and for any liability which may result from any action of the Utility. C. The insurance policy shall name Indian River County as an additional insured. D. The certificate of insurance shall be filed with the County annually. SECTION XXIII CONSUMER COMPLAINTS If any written complaint is filed with the County by any persons serviced by the Utility under this franchise, the County shall first determine whether reasonable cause exists with respect to the complaint. If the County finds reasonable cause the County shall so notify the Utility and request the Utility to satisfy or remedy such complaint. If the Utility fails within a reasonable time to satisfy or remedy such complaint or objection, the County may issue an appropriate order to remedy the problem. SECTION XXIV CHANGE IN RATE SCHEDULE A. Should the Utility desire to establish rates and charges or should the Utility desire to increase any charges heretofore established and approved by the Board, them the Utility shall notify the County in writing, setting forth the schedule of rates and charges which it proposes. The Utility shall pay any required rate structure review fee and shall furnish the County with all information required by the County. S. A public hearing shall then be held on such request, of which notice shall be given by publication in a newspaper regularly published in said County at least one time not more than one month or less than one week preceding such hearing. Certified proof of publication of such notice shall be filed with the County. C. Within 90 days of the public hearing, the County shall issue an order on the rate request. SECTION XXV 2�i DEFAULT OF FRANCHISE 2e A. If the Utility fails or refuses to promptly and faithfully keep, perform, and abide by each and all of the terms and conditions of this franchise, then the Board shall give the Utility written notice of such deficiencies or defaults and a reasonable time within which the Utility shall remedy the same. B. If the Utility fails to remedy such deficiency or default within a reasonable time, the Board may thereafter schedule a hearing concerning the same with reasonable notice thereof to the Utility, and after such hearing at which all interested parties shall be heard, the Board may levy an administrative fine of not more than $500.00 per day that the deficiency or default exists from the date correction should have been performed; and the County may limit or restrict this franchise or franchise territory or may terminate and cancel the same in whole or in part. SECTION XXVI EXECUTION OF FRANCHISE If any words, sections, clause or part of this resolution are held invalid, such portions shall be deemed a separate and independent part and the same shall not invalidate the remainder. IN WITNESS WHEREOF, Indian River County, Florida has caused this franchise to be executed in the name of Indian River County by the Chairman 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 the County Commissioners adopted on the day of , 1986. ATTEST: BOARD OF COUNTY COMMISSIONERS INDIAN RIVER COUNTY, FLORIDA Clerk ByDon C. Scurlock, Chairman ACCEPTANCE OF FRANCHISE , does hereby accept the foregoing franchise, and for their 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 at Vero Beach, Indian River County, Florida, this day of , 1986. WITNESS: By: President STATE OF FLORIDA COUNTY OF INDIAN RIVER I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the State and County aforesaid to take acknowledgements, personally appeared , as the President of a Florida Corporation, and he acknowledged before me that he executed the foregoing instrument for the uses and purposes therein expressed. WITNESS my hand and official seal in the State and County aforesaid this day of , 1986. Notary Public, State of Florida at Large My Commission expires: B. A public hearing shall then be held on such request, of which notice shall be given by publication in a newspaper regularly published in said County at least one time not 1 more than one month or less than one week preceding such hearing. Certified proof of publication of such notice shall be filed with the County. C. Within 90 days of the public hearing, the County shall issue an order on the rate request. f SECTION XXV DEFAULT OF FRANCHISE A. If the Utility fails or refuses to promptly and faithfully keep, perform, and abide by each and all of the terms and conditions of this franchise, then the Board shall give the Utility written notice of such deficiencies or defaults and a reasonable time within which the Utility shall remedy the same. B. If the Utility fails to remedy such deficiency or default within a reasonable time, the Board may thereafter schedule a hearing concerning the same with reasonable notice thereof to the Utility, and after such hearing at which all interested parties shall be heard, the Board may levy an administrative fine of not more than $500.00 per day that the deficiency or default exists from the date correction should have been performed; and the County may limit or restrict this franchise or franchise territory or may terminate and cancel the same in whole or in part. SECTION XXVI EXECUTION OF FRANCHISE If any words, sections, clause or part of this resolution are held invalid, such portions shall be deemed a separate and independent part and the same shall not invalidate the remainder. IN WITNESS WHEREOF, Indian River County, Florida has caused this franchise to be executed in the name of Indian River County by the Chairman 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 the County Commissioners adopted on the 17th day of May 1988. ATTEST: BOARD OF COUNTY COMMISSIONERS INDIAN RIVER COUNTY, FLORIDA Clerk Don C. Scurlock, Admin. Lo,1al d et ACCEPTANCE OF FRANCHISE TrLIl Approved I Date a California Limited Partnership Ell -Cap 32 -- VERO BEACH / I does hereby accept the foregoing franchise, and for their 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 at Vero Beach, Indian River County, FlrRO a, this % qday of 1988• E11 -Cap 32 -- VBEACH, a California Limited Partber - WITNESS: / d.__1 `^j Gerald D. Ellen , ueneraL rartner ---� \ BY: Ellenburg Ca al Corporation, a California orporation, General Partner ,,-\ , By: rale D. Ellenburg STATE OF C��L�IFO IA L1 ) COUNTY OF A ) On this � day of , 1987 before me the 1 undersigped Notary P blic, personally appeared '�er�ilr- -I). FIlyn ul'ct personally known to me (or proved to me on the basid of satisfactory evidence) to be the person that executed this instrument, on behalf of the partnership and acknowledged to me that the partnership executed it. (1, c1m �� `�SEAL OMIISL C. McKINNf_Y Notary Public ( sea ,S'hY".c; f, NOTARY PUPLIC CALIFORNIA My commission expires; : /b -/ - D I v : P / �-"�.�- :;AtITA C�IUZ COUNT`r \J;5' M;. Comm Expires Oct I, 1990 STATE OF C hIFQ lIA COUNTY OF 0- ° ) On this �-hL day of�1987, before me the undersigned i Notary Public in and for sad county and state personally appeared C (?,-a I d h c`'(Ihn bu-C, personally known to me (or proved to me of the bsis o satisfactory evidence) to be the President of-_F(lehburu 4 ol4a ( Qv Q or pori the corporation that executed the withirf in trument and personally known to me (or proved to me on the basis of satisfactory evidence) to be the person who executed the within instrument of behalf of said corporation, said corporation being personally know to me to be one of the General Partners 06n ,�� - - V' e ro (� �c< c� �� of the partnership that executed the within instrument and acknowledged to me that such corporation executed the same as such partner that such partnership executed the same. orrlc C. SEAL Notary Public / `— ti„' ._ 1 i)cP!IS4 C. Mri;1i�P!FY rl ( _a” ( .�'s{ )1ARY PUBLIC - GALIFORNIA My commission expires:_ /p-��qp `�'� SAN FA CRUZ COUNFY 1j My Conm. Expires Oct I, 1990 mss-