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HomeMy WebLinkAbout1974-091C] RESOLUTION NO. 74-91 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 WHISPERING PALMS TOO MOBILE VILLAGE UTILITY FRANCHISE. SECTION 2 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 include the singular and vice versa. The word "Shall" is always mandatory. (a) "County" is Indian River County, a political subdivision of the State of Florida; (b) "Owners" are the Grantees of the rights under this franchise, that is, DORMAL W. ALLEN and ISABELLE ALLEN, his wife; and IIAROLD W. ALLEN and I'ERMA ALLEN, his wife. (c) "Board" is the Board of County Commissioners of the County; (d) "Department" means the Indian River County Utilities De- partment; (e) "Person" is any person, firm, partnership, association, 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 subdivisions, apartment and housing complexes, condominiums, mobile home or trailer parks, industrial complexes, shopping centers and similar systems serving more than one building. "Utility" includes wells, pumps, tanks, treatment facilities, force mains, pump stations, collection systems, service lines 40 and pipes, real estate and easements necessary to such systems and includes every person, corporation, lessee, trustee or receiver owning, operating, managing or controlling a utility system or proposing construction of a system or who is providing or proposes to provide sewer service to the public. SECTION 3 There is hereby granted to the Owners by the County, the exclusive franchise, right and privilege to erect, construct, operate and maintain a water and sewer system within the prescribed territory as herein provided and for these purposes to sell water and 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: PARCEL 1 The South 10 acres of the SW 1/4 of the SE 1/4 of Section 17, Township 31 South, Range 39 East, lying West of the Dixie Highway, being a portion of the first tract of land described in a certain deed by Kate A. Braddock and William C. Braddock, Jr., her husband, to M. C. Kirk and Charles B. Jennings, dated April 29, 1919, recorded in Deed Book 35, page 109, St. Lucie County records; excluding any land lying West of the West right-of- way line of the Florida East Coast Railroad; and Beginning at a point in the center of State Road No. 4, where the South boundary line of the ;SW 1/4 of the SE 1/4 of Section 17, Township 31 South, Range 39 East, intersects said road; thence run West along said boundary line a distance of 76.8 feet to the center of the old public road; thence North -2- i40 25 deg. 16 min. West along the center of the old public road 465.9 feet; thence East 70.5 feet to the center of said State Road No. 4; thence Southerly along State Road No. 4 a distance of 465.9 feet more or less to point of beginning. Containing .71 acres and being in the SW 1/4 of the SE 1/4 of Section 17, ® Township 31 South, Range 39 East; all of said land situate in Indian River County, Florida. PARCEL 2 The North 1/2 of the North 1/2, of the Northwest 1/4 of the Northeast 1/4 of Section 20, Township 31 South, Range 39 East, lying West of U.S. Flighway No. 1, and East of Florida East Coast Railway, and also the North 1/2 of the North 1/2 of the Northeast 1/4 of the Northeast 1/4 of Section 20, Township ff 31 South, Range 39 East, lying West of U.S. Flighway No. 1. Said land lying I and being in Indian River County, Florida. PARCEL 3 The South 1/2 of the North 1/2 of the Northwest 1/4 of the Northeast 1/4, Section 20, Township 31 South, Range 39 East, lying West of U.S. Highway No. 1, and East of the Florida East Coast Railway; and also the South 1/2 of the North 1/2 of the Northeast 1/4 of the Northeast 1/4 of Section 20, Township 31 South, Range 39 East, lying West of U. S. Highway No. 1. Said land lying and being in Indian River County, Florida. SECTION 5 The Owners shall at all times during the life of this franchise be subject to all laixful exercise of the police power and regulatory authority of the County and to such regulation as the County shall hereafter by reso- lution or ordinance provide. SECTION 6 It is expressly understood and agreed by and between the Owners and the County that the Owners 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 negligence on the part of the Owners 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 Owners may be prosecuted directly by such person against the Owners as if no governmental immunity accrued to the County by virtue of the Owners' use of a public place of the County. The County shall notify the Owners promptly after presentation of any claim or demand. -3- Ars SECTION 7 The Owners shall maintain and operate their plant and system and r M 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 Owners shall comply with all requirements of the Department of Health and Rehabili- tative 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, maintenance and ex- pansion. The right is hereby reserved to the County to adopt, in addition to the provisions herein contained 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 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 Owners shall grant and deliver to the County, upon demand of the County, all of its facilities, system, easements and rights appurtenant thereto (except the treatment plant and the site for same) 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 Owners agree 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 the property, assets and facilities of the Owners without charge used in its services under this franchise. SECTION 8 Owners shall commence construction of their sanitary sewer -4- iWIM treatment and collection system within 90 days from date, otherwiNe the franchise created hereby may become void and of no further force or effect • M at the option of the Board. All the facilities of the Owners shall be constructed only in accordance with plans and specifications approved by the State Board of Health of the State of Florida and the Indian River County Utilities Depart- ment and the quantity and quality of sewerage treatment shall at all times be and remain not inferior to the rules, regulations and standards now or here- after adopted by the State Board of Health. Whenever it is necessary to shut off or interrupt services for the purpose of making repairs or installations, the Owners shall do so at such time as will cause the least amount of in- convenience to its consumers and unless such repairs are unforseen and immediately necessary, it shall give reasonable notice thereof to thei r customers. SECTION 9 (a) The Owners shall have the authority to promulgate such rules, regulations, terms and conditions covering the conduct of their business as shall be reasonably necessary to enable the Owners to exercise their rights and per- form their obligations under this franchise, and to issue an , uninterrupted service to such and all of their 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 Owners, before discretionary action is taken by the Board of County Commissioners, may request said Board that a group of arbitrators be authorized to determine such discretionary action and such group shall consist of: 1. Board's Consulting Engineer 2. Company Engineer -5- 40 3. One person selected by the two above persons. The Board of Arbitrators so authorized and constituted shall make recommenda- tions 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, may 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 Owners 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 Owners 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 ether surfacing, the Owners shall at their 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 con- dition 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 public way, the Owners shall, upon reasonable notice by the County, remove, relay, and relocate their fixtures at their own expense. The Owners shall not locate any of their facilities 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 Owners shall have located their facilities shall be closed, abandoned, vacated or discontinued, the Board may terminate such easement or license of the Owners thereto, provided, however, in the event of this termination of easement, any person, except the County, requesting such termination shall pay to the Owners, in advance, their costs of removal and relocation M of the removed facilities in order to continue their service as theretofore ?.M existing, or in the County shall retain an easement not less than ten feet 4D in width for the benefit of the Owners and their facilities. SECTION 11 The Owners 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 Owners shall furnish, supply, install and make available their water and sewer collection and treatment system to any and all persons within the territory making demand therefor, and shall provide such demanding person with their services and facilities within 120 days from the date of such demand; provided, however, that the Board may, upon application of the Owners, extend the time for providing such service to such demanding person. In the event the Owners fail to provide their 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 Owners 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 provisions of this franchise shall not extend beyond the limits of the area so restricted and defined. (b) The Owners shall not be required to furnish, supply, install and make available their water and sewer collection system 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 Owners as shall make the addition proposed, financially dG 0'9= and physically feasible. Financially feasible shall mean that with a fair and reasonable rate to be charged by the Owners for all the services under 40�= this franchise, to the end, that such rate will produce to the Owners a sum sufficient to meet all necessary costs of the services; including a fair rate of return on the net valuation of their property devoted thereto, under efficient and economical management. The burden of showing that a pros- pective service to the area is not financially feasible shall be the burden of the Owners. SECTION 13 The Owners shall not sell or transfer their 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 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 Owners to the Board in writing, accompanied by a request from the proposed transferee, which application shall contain information con- cerning 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 franchise shall not be un- reasonably withheld. -8- SECTION 14 The rates charged by the Owners for their service hereunder shall 40 M 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 their properties devoted thereto under efficient and economical management. The Owners agree that they 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 Owners shall have authority to charge and collect not to exceed the following rates: RATES Water $5.00 per month Sewer $5.00 per month Owners' 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 the Owners in the basis of their 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 Owners' plans, contracts, engineering data, accounting, financial, statistical, consumer and service records relating to the property and the operation of the Owners and to all other records, required to be kept here- under, and they shall file such accounting reports and data with the County when required. SECTION 16 The Owners 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 Owners. The County shall be named as an additional insured on all such policies of insurance and a copy of the policy shall be delivered M to the County Administrator. 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 Owners after request is made upon them by the Board, fail to satisfy or remedy such complaints or objections or fail 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 Owners for the services which they furnish or the nature and character of the service they furnish or the quality of services furnished. If the Board enters its order pursuant to such a hearing and the Owners feel it is aggrieved by such order, the Owners may seek review of the Board's action by proceedings in the Circuit Court of the County, otherwise, the Owners shall promptly com- ply with the order of the Board. SECTION 17 Should the Owners desire to increase any charges heretofore established and approved by the Board, then the Owners shall notify the Board in writing, setting forth a schedule of rates and charges which they propose. 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 Owners or any person feels aggrieved by such order, then the Owners or such person may seek review of the Board's action by proceedings in the Circuit Court of the County. atom ® SECTION 1.8 Prior tothe Owners constructing any of their facilities as herein ® M authorized the Owners 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 Owners fail or refuse 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 Owners written notice of such deficiencies or defaults and a reasonable time within which the Owners shall remedy the same, which notice shall specify the deficiency or default. If the Owners fail 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 Owners and 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 Owners 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 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 125.42, Florida Statutes. evolpTnio 11 The franchise and rights herein granted shall take effect and be -11- Lj 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, a municipal corporation of the State of Florida, within the territory of this franchise, may install or acquire its own water system and sewerage collection and treatment system and supplies the same to individual customers at which time, Owners will convey all of their facilities (except for sewer treatment plant and plant site) and easements for location of same as Owners may own, free and clear of all liens or mortgages, to said County without charge; provided, however, that within sixty days from the time of the adoption of this Resolution, the Owners shall file with the Board their 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 22 If any word, section, clause or part of this Resolution is held invalid, such portion shall be deemed a separate and independent 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 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 4th day of December, 1974. Signed, sealed and delivered in the presence of: COUNTY /OF INDIAN RIVER, F " RIDA As Chairman 6f the BoaM o ounty 7l Commissioners Attest: er -12- 40 ACCEPTANCE OF FRANCHISE The undersigned hereby accept the foregoing franchise and for themselves and their successors and assigns, do hereby covenant and agree to comply with and abide by all the terms, conditions and provisions therein set forth and contained. DATED this 4th day of December 1974 . A e Approved as to M: / By:' fl County ttjorney ' rT`ma'Allen