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HomeMy WebLinkAbout1974-078RESOLUTION NO. 74-78 BE IT RESOLVED by the Board of County Commissioners M_M of Indian River County, Florida: SECTION 1 This Resolution shall be known and may be cited as the "HERITAGE VILLAGE WATER AND SEWER FRANCHISE." SECTION Z For the purpose of this Resolution, the following terms, phrases, words and their derivations 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 subdi- vision of the State of Florida; (b) "Owner" is the Grantee of rights under this fran- chise, that is, HERITAGE VILLAGE OF VERO BEACH, 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 organization .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 sub- divisions, apartment and housing complexes, condominium, mobile home or trailer parks, industrial complexes, shopping centers and similar systems serving more than one building. "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 40 easements necessary to such systems and includes every person, ®M corporation, lessee, trustee or receiver owning, operating, managing or controlling a utility system or proposing con- struction of a system or who is providing or proposes to pro- vide water or sewer service to the public. SECTION 3 There is hereby granted by the County to the Owner the exclusive franchise, right and privilege to erect, construct, operate and maintain a water and sewer system within the pres- cribed territory as herein provided and for these purposes to sell water and sewage 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 pub- lic 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: Tracts 9 and 10, LESS 5 acres, Northeast corner of Tract 9, and LESS the West 10 acres of Tract 10, Section 11, Township 33 South, Range 38 East, Indian River Farms Company Subdivision, as per map or plat thereof as recorded in Plat Book 2 at page 25, Public Records of St. Lucie County, Florida; said land now lying and being in Indian River County, Florida. The portion of the property described above as "Less 5 acres, NE corner of Tract 9" is described as follows: Commencing at the East 1/4 corner of Section 11, Town- ship 33 South, Range 38 East a go North 89004'02" West 466.69 feet; thence South 01616'49" West 30.00 feet to the point of beginning; thence South 01016'49" West 436.69 feet; thence South 89004'02" East 426.69 feet; thence North 01016'49" East 436.69 feet; thence North 89004'02" West 426.69 feet to the point of beginning. -2- • SECTION 5 • The Owner 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 Owner and the County that the Owner 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 demand whatsoever resulting from negligences on the part of the Company in the construction, operation or maintenance under the terms of this franchise. The parties agree that in the construction of this section, the claim of any person resulting from negligence on the part of the Owner may be prosecuted directly by such person against the Owner as if no governmental immunity accrued to the County by virtue of the Owner's use of a public place of the County. The County shall notify the Owner promptly after presentation of any claim or demand. SECTION 7 The Owner 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 Owner shall comply with all requirements of the Department of Health and Rehabilitative Services, Division of Health, the Department of Pollution Control, The Indian River County Utilities Department, and appropriate planning agencies relative to construction, design, operation, capacity, main- tenance and expansion. The right is hereby reserved to the -3- County to adopt, in addition to the provisions herein con- tained and existing applicable resolutions or laws, such ad- ditional 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 per- formed and to make such inspection as it shall find necessary to insure compliance with all governing regulations. Upon the termination of this franchise, the Owner shall grant and de- liver 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 territory covered by this franchise shall be hereinafter incorporated in the limits of any municipality of the State of Florida, then in such event, the Owner agrees as a part of the consideration of the granting of this franchise that said municipality is herewith granted the right, power and authority to acquire all of the property, assets and facilities of the Owner without charge used in its services under this franchise. SECTION 8 The Owner shall commence construction of its sanitary sewer treatment and collection system within six (6) months free, date, otherwise the franchise created hereby may become void and of no further force and effect at the option of the Board. A1.1 the facilities of the Owner shall be constructed only in accordance -4- O with plans and specifications approved by the State Board of Health of the State of Florida and The Indian River County Utilities Department, and the quantity and qualify of sewage treat- ment shall, at all times, be and remain not inferior to the rules, regulations and standards now or hereafter adopted by the State Board of Health. Whenever it is necessary to shut off or interrupt services for •the purposes of making repairs or installa- tions, the Owner shall do so at such time as will cause the least amount of inconvenience to its consumers and unless such repairs are unforeseen and immediately necessary, it shall give reason- able notice thereof to its customers. SECTION 9 (A) The Owner 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 Owner 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, regulations, 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 County Commissioners, the Company, before dis- cretionary action is taken by the Board of County Commissioners, can request said Board that a group of arbitrators be authorized to determine such discretionary action and such group shall con- sist of: 1. The Board's Consulting Engineer; 2. The Company Engineer; and 3. One person selected by the two above persons. The Board of Arbitrators so authorized and constituted shall make recommendations to the Board of County Commissioners but such re- commendations are not mandatory. -5- Any final decision the arbitrators or Board may have, with respect to this franchise, may be appealed to the Circuit Court of Indian River County, Florida by either party. All pipes, mains, lift stations, pumps, valves and other fixtures laid or placed by the Owner shall be so located in the public places in the County as not to obstruct or interfere with any other uses mane of such public places already installed. The Owner 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 distur- bance of pavement, sidewalk, driveway, or other surfacing, the Owner shall, at its own cost and expense and in a manner approved by the County Engineer, 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 Owner shall, upon reasonable notice by the County, remove, relay and relocate its fixtures at its own expense. The Owner shall not locate any of its facilities nor do any construction which would create any ob- structions or conditions which are or may become dangerous to the travelling public. In the event any such public place under or upon which the Owner shall have located its facilities shall be closed, abandoned, vacated or discontinued, the Board may terminate such easement or license of the Owner thereto, provided, however, in the event of this termination of easement, any person, except the County, requesting such termination shall pay to the Owner, in advance, its costs of removal and relocation of the removed facilities -6- • 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 Owner and its facilities. SECTION 11 The Owner 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 sub- ject 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 coining within such classification would be entitled. SECTION 12 (A) The (honer shall furnish, supply, install and make available its water and sewer collection and treatment system to any and all persons within the territory making demand there- for, here-for, and shall provide such demanding person with its services and facilities within 90 days from the date of such demand; pro- vided, however, that the Board may, upon application of the Owner, extend the time for providing such service to such demanding person. In the event the Owner 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, restrict and confine the territory to that area then being serviced by the Owner 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 franchise shall not extend beyond the limits of the area so restricted and defined. (B) The Owner shall not be required to furnish, supply, install and make available its water and sewer collection and treatment system -to any person within the territory as hereinafter -7- M I set forth, unless the same may be done at such a cost to the ®M Owner as shall make the addition proposed, financially and physically feasible. Financially feasible shall mean that with a fair and reasonable rate to b e charged by the Owner for all the services under this franchise, to the end, that such rate will produce to the Owner a sum sufficient to meet all necessary costs of the ser- vices; including a fair rate of return on the net valuation of its property devoted thereto, under efficient and economical manage- ment. The burden of showing that a prospective service to the area is not financially feasible shall be the burden of the Owner. SECTION 13 The Owner 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 effective until the vendee, assignee or lessee has filed with the Board an instru- ment 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 Owner to the Hoard in writing, accompanied by a request from the proposed transferee, which ap- plication shall contain information concerning the financial status and other qualifications of the proposed transferee and such other information as the Board may require. A public hear- ing 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 -8- 40 be continued from time to time as determined by the Board. The i 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 franchise shall not be unreasonably withheld. SECTION 14 The rates charged by the Owner 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 Owner agrees that it shall be sub- ject 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 Owner shall have authority to charge and col- lect not to exceed the following rates: SEWER CHARGE and WATER CHARGE $4.50 per month SEWER HOOK-UP CHARGE NONE WATER HOOK' -UP CHARGE NONE Provided, however, that the Owner does not contemplate charging for water or sewers at this time. 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 on the basis of its rates without first making application therefor and public hearing thereon. SECTION 15 The County shall have access at all reasonable hours to all of the Owner's plans, contracts, engineering data, account- ing, financial, statistical, consumer and service records relating to the property and the operation of the Owner and to all other data 40 required to be kept hereunder, and it shall file such accounting reports and data with the County when required. SECTION 16 The Owner shall at all times maintain public liability and property damage insurance in such miounts as shall be re- quired 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 Owner. The County shall be named as an addi- tional insured on all such policies of insurance. If any person serviced by the Owner under this franchise complains to the Board concerning rates, charges and/or operations of such utility and the Owner, after request is made upon them 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 Owner for the services which it furnishes or the nature and character of the service it furnishes or the quality of services furnished. If the Board enters its order pursuant to such a hearing and the Owner feels it is aggrieved by such order, the Owner may seek re- view of the Board's action by proceedings in the Circuit Court of the County; otherwise, the Owner shall promptly comply w?.th the order of the Board. Should the Owner desire to increase any charges heretofore established and approved by the Board, then the Owner shall notify the Board in writing, setting forth a schedule of rates and -10- 40 40 charges which it proposes. A public hearing shall 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, 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 said increase in rates within ninety (90) days of said public hearing. If the Board enters order pursuant to said hearing and the Owner or any person feels aggrieved by such order, then the Owner 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 Owner constructing any of its facilities as herein authorized, the Owner shall make application to and obtain a permit from the Indian River County Utilities Department auth- orizing 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 Owner 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 Owner written notice of such deficiencies or defaults and a reasonable time within which -the Owner shall remedy the same, which notice shall specify the deficiency or default. If the Owner fails to remedy such deficiency or default within the time required by the notice from the Board, the Board may thereafter schedule a hearing con- cerning the same with reasonable notice thereof to the Owner and -11- after such hearing at which all interested parties shall be heard, the Board may further limit or restrict this franchise or may terminate and cancel the same in whole or in part if proper reasons therefor are found by the Board. If the Board enters order pursuant to such hearing and the Owner 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 The franchise and rights herein granted shall take effect 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 gime as the County may install or acquire its own sewage collection and treatment system and supplies the same to individual customers at which time, Owner will convey all of its facilities (except for sewer treatment plant and plant site) and easements for location of same as Owner may own, free and clear of all liens or mortgages, to said County without charge; pro- vided, however, that within sixty (60) days from the time of the adoption of this resolution, the Owner 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. SECTION 21 If any word, section, clause or part of this resolution is held invalid, such portion shall be deemed a separate and inde- pendent part and the same shall not invalidate the remainder. IN WITNESS WHEREOF, 'the Board of County Commissioners of Indian River County, Florida, has caused this franchise to be -12- 40 executed in the name of the County of Indian River 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 County Commissioners adopted on the 25TH day of SEPTEMBER , 1974. COUNTY / OF INDIAN RIVER, FLORIDA. By Alma Lee Loy, as Chairmoh of the Board of County Commiss1foners Attest (1ph Ha{rr,i�s% Clerk �t �G4�IC• L7m L��7f-L Signed, sealed and delivered in the presence of: As both par ie$ ACCEPTANCE OF FRANCHISE HERITAGE VILLAGE OF VERO BEACH, INC. does hereby accept the foregoing franchise, and for itself and its successors and/or as- signs, 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 Veen Beach, Indian River County, Florida this -'y day of z�Cc'.�x i�c d �/ 1974. HERITAGE VILLAGE OF VERO BEACH, .INC. LIJ m Byc Obert A. Peters, President •1,_� Attest aroId 4 Ma , retary -13- 40 Signed, sealed and delivered i e presenc of As to Herit g_&� it -age of Vero Beach, Inc. STATE OF FLORIDA COUNTY OF INDIAN RIVER I HEREBY CERTIFY that on this day before me, an officer duly qualified to take acknowledgments, personally appeared ROBERT A. PETERS, as President, and Harold W. Mayes, as Secretary, respectively, of Heritage Village of Vero Beach, Inc. and they acknowledged to and before me that they executed the foregoing instrument for the purposes therein expressed by authority vested in them by said corporation, and that the impression seal affixed hereto is -the true seal of the cor- poration. WITNESS my hand and official seal in the state and county aforesaid this- 7a day of::;er�Cc�_�c c , 1974. APPROVED AS TO FORM: By - County Attorney Notary Public, State of Florida at Large. My Commission Expires: ­�/1?C%/7 7 -14-