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HomeMy WebLinkAbout1979-012RESOLUTION NO. 79-12 BE IT RESOLVED by the Board of County Commissioners of Indian River County, Florida: SECTION I This Resolution shall be known and may be cited as the "Mitchell Builders, Inc., of Michigan and Florida Water Franchise". SECTION II 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 tense 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) "County Engineer", may be "County Administrator". (c) "Corporation" is the Grantee of rights under this franchise, to -wit: Mitchell Builders, Inc., of Michigan and Florida. (d) "Board" is the Board of County Commissioners of the County. (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) "Water System" shall mean and include any real estate, attachments, fixtures, impounded water, water mains, laterals, valves, meters, plant, wells, pipes, tanks, reservoirs, systems, facility or other property, real or personal, used or useful or having the present capacity for future use in connection with the obtaining, treatment, supplying and distribution of water to the public for human consumption, fire protection, irrigation, con- sumption by business or industry and without limiting the generality of the foregoing, shall embrace all necessary appurten- ances and equipment and shall include all property, rights, ease- - 1 - ments and franchises relating to any such system and deemed necessary or convenient for the operation thereof. OV? MTr%Al TTT There is hereby granted by the County to the Corporation the non-exclusive franchise, right and privilege to erect, construct, operate and maintain a water system within the pre- scribed territory as herein provided and for these purposes to sell and distribute water within the territory and for these pur- poses 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 IV 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: The Southwest 1/4 of the Northwest 1/4, Less the South 70 feet for road right-of-way, Section 13, Township 33 South, Range 39 East, Indian River County, Florida, containing 38.203 acres net. The Corporation 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 regula- tion as the County shall hereafter by resolution provide. QW'WTONT 17 It is expressly understood and agreed by and between the Corporation and the County that the Corporation 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 Corporation in the construction, operation or maintenance under the terms of this franchise. The parties agree that, in the con- struction of this section, the claim of any person resulting from negligence on the part of the Corporation may be prosecuted directly by such person against the Corporation as if no govern- mental immunity accrued to the County by virtue of the Corporation's use of a public place of the County. The County shall notify the Corporation promptly after presentation of any claim or demand. SECTION VI The Corporation 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, which shall include but not be limited to Standards promulgated by the City of Vero Beach, Water and Sewer Department, November. 1, 1977, or as amended. The County shall .require the Corporation to comply with the above standards as they relate to material specifications, and compaction require- ments immediately surrounding the pipes. Prior to the issuance of a construction permit the County shall also require the Corporation's project engineer to certify that the material to be used will meet the standards as set forth in said Standards of the City of Vero Beach, Water and Sewer Department, adopted November 1, 1977, or as amended. Upon approval by the County of the plant and water system, a permit shall be issued to the Corporation for the construction thereof. 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 performed and to make such inspections as it shall find necessary to insure compliance with all governing .regulations. - 3 - Upon the completion of all construction of the water plant and distribution system, the project engineer for the Corporation shall certify, under seal, that the system has been constructed in accordance with the plans and specifications previously approved, and further, has met all of the standards required by the County, whereupon the County will issue a permit accepting the distribution system, and further, that the said distribution system and all easements, (excepting only the water plant and the real property upon which it is situated), shall be conveyed, along with as built plans, to the County by a customary means of conveyance, whereupon the County shall give to the Corporation a maintenance lease for $1.00 per year, ex- tending for the duration of this Franchise. The County shall require the corporation to comply with all landscape ordinance regulations as enacted by the County. SECTION VII All the facilities of the Corporation shall be constructed only in accordance with plans and specifications approved by the Department of Environmental Regulations of the State of Florida and the quantity and quality of water delivered and sold and the manner of collection shall at all times be and remain not inferior to the quality standards for public water supply, and other rules, regulations and standards now or hereafter adopted by the Department of Environmental Regulations of the State of Florida. The Corporation shall maintain sufficient water pressure and mains of sufficient size with fire hydrants and other facilities necessary to furnish fire protection at any and all areas within the territory serviced by the Corporation. The Corporation shall also supply all water through meters which shall accurately measure the amount of water supplied to any consumer. The Corporation shall at any time, when requested by a consumer, make a test of the accuracy of any meter; prior, however, to any test being made by the Corporation, the sum of Five ($5.00) Dollars shall be depos4l'ed with the Corporation by the party requesting such test. Such sum shall be returned if the test - 4 - shows the meter to be inaccurate in its delivery. Whenever it is necessary to shut off or interrupt service for the purpose of making repairs or installations, the Corporation shall do so at such times as will cause the lease amount of incon- venience to its consumers and, unless such repairs are unforeseen and immediately necessary, it shall give, not less than Five (5) day notice thereof, to its consumers for non -emergencies. 0Vf1MTnN7 77TTT (a) The Corporation shall have the authority to promul- gate such rules, regulations, terms and conditions covering the conduct of its business as shall be reasonably necessary to enable the Corporation to exercise its rights and perform its obligations under this franchise and to issue an uninterrupted service to each and all of its consumers; provided, however, that such rules, regulations, terms and conditions shall riot 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 Corporation, before discretionary action is taken by the Board of County Commissioners, can request said Board that a group of arbitrators be appointed, and such group shall consist of; 1. County Engineer 2. Corporation Engineer. 3. One person selected by the above two 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 IX All pipes, mains, hydrants, valves, and other fixtures laid or placed by the Corporation shall be so located in the pub- lic places in the County so as not to obstruct or interfere with - 5 - other uses made of such public places already installed. The Corporation 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 distributed. In case of any disturbance of pavement, sidewalk, driveway or other surfacing, the Corporation 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 (1) 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 Corporation, shall upon reasonable notice by the County, remove, relay and relocate its fixtures at its own expense. The Cor- poration shall not locate any of its facilities nor do any con- struction 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 Corporation shall have located its facilities shall be closed, abandoned, vacated or discontinued, the board may terminate such easement or license of. the Corporation thereto; provided, however, in the event of this termination of easement, the person requesting such termination shall pay to the Corporation, 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 (10) feet in width for the benefit of the Corporation and its facilities. SECTION X The Corporation shall not as to rates, charges, service 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 schedules to which any consumer coming within such classification would be entitled. - 6 - SECTION XI (a) The Corporation shall furnish, supply, install and make available its public water system to any and all persons within the territory making demand therefor, and shall provide such demanding person with its services and facilities, provided, however, that the Board may, upon application of the Corporation, extend the time .for providing such service to such demanding person. In the event the Corporation fails to provide its services and facilities as a water system 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 con- fine the territory to that area then being serviced by water by the Corporation or such greater area as the Board shall determine and thereafter the territory shall be only the 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 Corporation shall not be required to furnish, supply, install and make available its public water system to any person within the territory as hereinbefore set forth, unless the same may be done at such a cost to the Corporation as shall make the addition proposed financially feasible. Financially feasible shall mean that a fair and reasonable rate to be charged by the Corporation for all its services under this franchise; that such rate will produce to the Corporation a sum sufficient to meet all necessary costs of the services, including 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 finan- cially feasible shall be the burden of the Corporation. crrmTnn7 VTT The Corporation, or its Shareholders, shall not sell or transfer its plant or system, or corporate stock, to another - 7 - 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 in- strument 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 Corporation to the Board 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 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 or 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 deter- mined by the Board. The consent by the Board to any assignment of this franchise shall not be unreasonably withheld. Any sale or transfer., by the Corporation or Shareholders of the Corporation, taking place contrary to the terms and conditions of this paragraph shall be considered by the Board to be a default by the Corporation under this franchise agreement and subject this franchise to termination. SECTION XIII The rates charged by the Corporation 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 Corporation 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 Corporation shall have authority to charge and collect, but not to exceed the following schedule of rates, which shall remain effective until changed or modified as herein provided, to -wit: MONTHLY WATER QUANTITY RATES: First 2,000 gallons.... .. ......$ 7.00 Each additional 1,000 gallons.... 1.50 WATER HOOK-UP CONNECTION CHARGED: Water Hook-up Connection Charge..$ 200.00 (a) The County will establish an interest bearing pass book account and will deposit all sums paid for any and all hook-up charges paid under this franchise, such account requiring the signature of the appropriate county official and the appropriate Corporate officer to authorize the withdrawal therefrom of any amount, under the following conditions: (1) At any time within the ensuing seven (7) years that the County shall acquire its own water distribution system, and shall furnish water services to individual customers, all sums of money remaining in said account shall become the property of the County and the Corporation shall relinquish all rights thereto. (2) In the event the above condition is not met by the County within seven (7) years from the date of this franchise agreement, said sums of money remaining in said account shall become the absolute property of the corporation. (3) Throughout the term of this franchise the Corporation shall be entitled to any and all interest which shall be paid annually on or before September 30th of each year to the Corporation. The Corporation shall be entitled to an accounting of said interest bearing account, at any time upon request made by it to the County. The County shall have access at all reasonable hours to all of the Corporation's plans, contracts, engineering data, accounting, financial, statistical, consumer and service records relating to the pror--rty and to all other records required to be kept hereunder, and the Corporation shall rile such accounting - 9 - reports and data with the County when required. The Corporation shall maintain a current and separate set of books for the accounts relative to the operation of the water system maintained under this franchise. SECTION XV The Corporation shall at all times maintain public lia- bility 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 Corporation. If any person serviced by the Corporation, under this franchise, complains to the Board concerning the rates, charges and/or operations of such utility and the Corporation, after request is made upon it by the Board, fails to satisfy or remedy such complaint or objection or fails to satisfy the Board that said complaint or objection is not proper, the Board may thereupon, after clue 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 Corporation for the service it furnishes or the quality of services furnished. If the Board enters its order pursuant to such hearing and the Corporation feels it is aggrieved by such Order, the Corporation may seek review of the Board's action by proceedings in the Circuit Court of the County; otherwise, the Corporation shall promptly comply with the order of the Board. QVlM7nM VXTT Should the Corporation desire to establish rates and charges or should the Corporation desire to increase any charges heretofore established and approved by the Board, then the Cor- poration shall notify the Board in writing, setting forth the schedule of rates and charges which it proposes. 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 nor less than one week preceding such hearing. Certified proof of publication of such notice shall be filed with the Board. Said hearing may there- after be continued from time to time as determined by the Board. If the Board enters an Order pursuant to such hearing and the Corporation or any person feels aggrieved by such order, then the Corporation or such person may seek review of the Board's action by proceeding in the Circuit Court of the County. Prior to the Corporation placing any of its facilities in any of the public places as herein authorized, the Corporation shall make application to and obtain a permit from the County Engineer authorizing said construction in the same manner as permits are authorized in the County for the use of the public roads as shall now or hereafter be established by regulations of the County. The County shall have the right when special circum- stances exist to determine the time in which such construction shall be done. SECTION XVIII If the Corporation 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 Corporation written notice of such deficiencies or defaults and a seasonable time within which the Corporation shall remedy the same, which notice shall specify the deficiency or default. If the Corporation 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 Corporation 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 thereby are found by the Board. If the Board enters an order pursuant to such hearing and the Corporation or any other person feels aggrieved by such order, the utility or such othe- person may seek review of the Board's action by proceedings in the Circuit Court of the Countv. SECTION XIX Any person using in normal average consumption more than 100,000 gallons of water per day shall not be required to deal With the Corporation but any such water user shall be at liberty to secure its water from such source or sources as it might desire. This franchise shall exempt and except therefrom any public agency producing water for resale at wholesale. Nothing in this franchise shall prevent landowners from exercising their vested rights or privileges as set forth and contained in any license issued to any utility heretofore granted by the Board pursuant to Section 125.43, Florida Statutes. SECTION XX The Corporation shall design all facilities within the Franchise Area to conform to the Indian River County gaster Plan for utilities, when applicable. 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 time as the County may install or acquire its own water distribution system and declares an intent to supply the same to individual customers within the Franchise Area. Upon the County supplying water, this Franchise shall become null and void. The Franchise and rights hereto 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 time as the County is operating a public -owned water system and agrees to service the area presently served under the franchise distribution system. The Corporation acknowledges that it has entered into an agreement with the County whereby, upon written notification from the County, the Corporation will, at its own expense, terminate the lease of the distribution system, remove the water plant, and terminate this franchise. County, at its expenses, shall connect the franchise's distribution system - 12 - and .lift stations and other necessary appurtenances which have been conveyed to County to the County's distribution lines and service the franchise area. The Corporation agrees to grant to County any easements necessary to connect the franchise's dis- tribution system to the County's distribution system. The water plant, and the real property upon which the water plant is situated, shall. remain the property of the Corporation. The Corporation grants to the County the right to purchase the said water plant and real property, or any part thereof, within thirty (30) days from the time this franchise becomes null and void, upon terms and conditions mutually agreed upon by the County and the Corporation. In the event County purchases any of the real. property, it shall purchase said real property in segments of not less than whole lots. SECTION XXII 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 Chair- man 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 24th day of Jan6arY _,_,, 1979. Signed, sealed and delivered in the presence of: aa� 61 - 13 - COUNTY OF INDIAN RIVER, FLORIDA By As"Chairman of the B( rd o County Commissioners Attest:'-,9- Clerk ttest:'-9Clerk ACCEPTANCE OF FRANCHISE MITCHELL BUILDERS, INC., of. Michigan and Florida, 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 z; ,,;f_. , 1979. MITCHELL/ BUILDERS, INC.,/ OE��M�CHIGAN AND FLORIDA r /, O 1 �/FF BY L J / Ron&ld E. Mitchell, 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 acknowledgments, personally appeared RONALD E. MITCHELL, as President of MITCHELL BUILDERS, INC., OF MICHIGAN AND FLORIDA, 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 /z" ' day o I I I I, 1979. Notary Public. State ofFlorida at Large. My Commission expires: