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HomeMy WebLinkAbout1981-058ment Lot 2, Section 28, Township 33 South, Range 40 East, and all of Government Lot 2, Section 27, Township 33 South, Range 40 East; all of Govern- ment Lot 6, Section 21, Township 33 South, Range 40 East, lying Westerly of Floralton Beach Sub- division; all of Government Lot 5, Section 21, Township 33 South, Range 40 East, lying Westerly of State Road A -1-A; that part of Government Lots 2 and 3, Section 21, Township 33 South, Range 40 East, lying Westerly of State Road A -1-A; and that part of Government Lots 1 and 4, Section 21, Town- ship 13 South, Range 40 East, lying Westerly of State Road A -1-A. The Franchise territory includes all of The Moorings Units 1, 2, 3, 4, 5, and 6; The Moorings Golf Course; Porpoise Bay villas; and St. Edward's Upper School. b. The territory may be expanded, to the extent there is ex- cess capacity, to include additional areas located on the "Barrier Island" lying South of the now existing City limits to the now exist- ing South County boundary line separating Indian River County from St. Lucie County, which lie within the territory defined in Section 2(f) and is contiguous to the then existing service area. Corporation shall have available capacity for, and provide to, those persons who "require service". County and Corporation expressly agree that only intense uses, such as multi -family and commercial development "require service". Nothing shall be construed to require that the Corporation expand the sewer treatment facilities beyond that necessary to service the build -out requirements of the territory described in Section 4(a). Such expansion may only occur if County and Corporation so agree and a public hearing is held thereon. SECTION 5 POLICE POWER: 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 regu- lation as the County shall hereafter, by resolution or ordinance, provide. SECTION 6 LOSS: It is expressly understood and agreed by and between the Corporation and the County that the Corporation shall hold the -3- 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 Corporation in the construction, operation or maintenance under the terms of this Franchise, Thi parties agree that .,; the construction 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 governmental immunity ac- crued 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 7 OPERATION STANDARDS: The Corporation shall maintain and operate its plant and system and render efficient service in accor- dance with the rules and regulations as are or may be set forth by the Board from time to time. Additionally, the Corporation shall comply with all requirements of the Department of Health and Rehab- ilitative Services, Division of Health, the Department of Pollution Control, the Department of Environmental Regulation, and appropri- ate governmental agencies relative to construction, design, opera- tion, capacity, maintenance and expansion. The right is hereby re- served to the County to adopt, in addition to the provisions herein contained and existing applicable resolutions or laws, such addi- tional regulations as it shall find necessary in the exercise of the police power and lawful authority vested in said County, provi- ded 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 a,; governing regulations. Corporation shall bear the cost of the inspection required by County Ordinance 80-13. Upon the termination -4- of this Franchise, under Sections 24, anu 25, the Corporation 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, together with those in-place appur- tenances located on site and the real property on which it is situ- ated) lying within Indian River County without charge to the County. In the event any part or all of the territory covered by this Fran- chise shall be hereinafter incorporated in the limits of any munici- pality of the State of Florida, then in such event the Corporation agrees as a part of the consideration of the granting of this Fran- chise that said municipality is herewith granted the same right, power and authority as is herein given to the County to acquire all the property, assets and facilities of the Corporation used in its services under this Franchise. SECTION 8 STANDARDS: All additional facilities of the Corporation shall be constructed in accordance with plans and specifications ap- proved by the Department of Environmental Regulation of the State of Florida (hereinafter DER), and the County specifications. The quantity and quality of sewerage treatment shall at all times be and remain equal to or exceed the standards for public sewerage collection, and other rules, regulations, and standards now or hereafter adopted by the DER. SECTION 9 AUTHORIZATION OF NEW CONSTRUCTION: Prior to the Corporation placing any new facilities in any of the public places as herein author- ized, the Corporation shall make application to and obtain permission from the County Engineer authorizing said construction. The Corporation shall have the right, when special circumstances exist, to determine the time in which such construction shall be done. -5- SECTION 10 LOCATION OF FACILITIES: All pipes, mains, lift stations, pumps, valves and other fixtures laid or placed by the Corporation shall be so located in the public places in the County as not to ob- struct or interfere with any 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 disturbed. In case of any disturbance of pavement, sidewalk, driveway or other surfacing, the Corporation shall, at its own cost and expense, in a manner approved by the County Engineer, replace and restore all such surface so dis- turbed 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 Corporation shall, upon reasonable notice by the County, remove, relay and relocate its fixtures at its own expense. The Corporation shall not locate any of its 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 that 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, any person, except the County, requesting such termination shall pay to the Corporation, in advance, its costs of re- moval 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. cc PT i it nl l l MAINTENANCE: If it is necessary to shut off or interrupt services for the purposes of maintenance, repairs, or installations, the Corporation shall do so at such time as will cause the least amount of inconvenience to its consumers. Unless such repairs are unforeseen and immediately necessary, it shall give reasonable notice thereof to its customers. The Corporation shall diligently prosecute any repairs or maintenance of the system. SECTION 12 RULES AND REGULATIONS: a. The Corporation 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 Corporation to exercise its rights and perform its obligations under this Franchise, and to issue an uninterrupted service to such and all of its customers; provided, however, that such r,fles, regulations, terms and condtions shall not be in conflict with the provisions hereof or with the laws of the State of Florida, and that 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, the Corporation can request said Board that a group of arbi- trators be authorized to determine such discretionary action before dis- cretionary action is taken by the Board. Such group shall consist of: 1. County -Appointed Engineer 2. Corporation -Appointed Engineer 3. One Engineer selected by the two above persons The arbitrators so authorized and constituted may make recommendations to the Board, but such recommendations are not mandatory, without further action upon same by the Board. 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 13 NO PREJUDICE: The Corporation shall not as to rates, charges, -7- services, facilities, rules, regulations or in any other respect, make or grant any preference or advantage to any person nor subject any person to prejudice or disadvantage. Nothing herein shall pro- hibit the establishment of a graduated scale of charges and classi- fied rate crhedule to ::hick any consuliler coming within such classi- fication would be entitled. SECTION 14 SERVICE: a. The Corporation shall furnish, supply, install and make available its sewer collection and treatment system to any and all persons within the territory making demand therefor, and shall provide such demanding person, after receipt of payment of the Connection Charge set forth in Section 18, with its services and facilities within ninety (90) days from the date of such demand; provided, however, that the Baord may, upon application of the Cornnratinn, extend the t41_ 1()r providing such service to such demanding person. In the event the Cor- poration fails to provide its services and facilities to any area within the territory within the time provided and after the demanding person has paid all applicable charges, 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 Corporation 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 re- stricted and defined. The procedure set forth in Section 23 hereof will be utilized in such instances. b. The Corporation shall not be required to furnish, supply, install and make available its sewer collection and treatment system to any person within the territory as hereinafter set forth, unless the same may be done at such a cost to the Corporation as shall IildnCke - I I the addition proposed, financially and physically feasible. Financially feasible shall mean that with a fair and reasonable rate to be charged by the Corporation for all the services under this Franchise, to the end, that in ( ' ;Aft 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 prosprctive service to the area is not financially feasible shall be the burden of the Corporation. c. The Corporation shall furnish, supply and make avail- able effluent for the purpose of irrigation of The Moorings' golf course. Same shall be in accordance with the terms and conditions of that certain Operation Permit #DO 31-27317 issued by the Department of Environmental Regulation of the State of Florida. Such effluent shall meet all standards of the Department of Health and Rehabilitative Services, Division of Health, the Department of Pollution Control, the Department of Environmental Regulation and other appropriate govern- mental agencies. Any transferee hereunder shall likewise provide the necessary effluent for irrigation. SECTION 15 APPLICABILITY OF FRANCHISE PROVISIONS: No landowner shall be required to hook up or use the sewerage collection and treatment services as provided in this Franchise; provided, however, if such landowner requests services and purchases services from the Corpor- ation, then the provisions of this Franchise shall apply to such landowner and the land involved. All costs and necessary permis- sions to service landowner's property shall be borne by such request- ing landowner. 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. SECTION 16 INSURANCE: In accordance with good business practices and for the protection of the County and the general public, the -9- Corporation shall, at all times maintain public liability and property damage insurance in such amounts as may be required by the Board. The County shall be named as an additional insured on all such policies of insurance. SECTION 17 ESCROW ACCOUNT: Ten percent (10%) of the gross rates charged and received by the Corporation shall be placed in an inter- est-bearing escrow account held by the County. 'The funds so derived may be invested in securities of the U. S. or any agency thereof, or in savings or time deposits insured by an agency of the U. S., as determined by the Escrow Agent. The said funds, together with actual accrued interest, shall be accumulated until the balance reaches $20,000.00, hereinafter "cap amount". If the balance is drawn down the funds shall be re -accumulated until the balance reaches the cap amount. The escrowed funds shall be used as a reserve for capital expenditures (not to include the initial installation of equipment) and deferred maintenance of the sewer system as the need arises. The funds shall be released as follows: 1. If the balance of the account exceeds the cap amount set forth hereinabove, the excess funds shall be remitted by the County to the Corporation. 2. If the need for a capital expenditure, maintenance repair, or emergency repair arises, the Corporation shall, in writing, request the County to release the necessary funds therefor and Cor- poration shall perform such work. In the event Corporation does not perform needed capital expenditure or maintenance repair within thirty (30) days after County has provided a list and notice of de- ficiencies, escrowed funds may be used by the County therefor. 3. If an emergency arises which the Cornnrati— r� if after notification, fails to correct within a reasonable time, es- crowed funds may be used by the County to effect such necessary repairs. -10- 4. Should the County terminate the Franchise for cause, the escrowed funds will be governed by Section 24. 5. Should the County terminate the Corporation not for cause, the escrowed funds will be governed by provisions found in Section 25. The cap amount required may be set at a different level if the Board, at the time of review, determines that the cap amount is either insufficient or is excessive based upon the estimated life and estimated replacement costs of the components of the system. SECTION 18 CONNECTION CHARGE: Each separate building or structure which is connected to the Corporation's sewer system by a separate service connection shall be required to pay one connection charge even when held in o:rncrship common to that of an adjoining building or structure. Connection to the Corporation's sewer system shall be deemed to occur at the time of issuance of the Building Permit by the Building Department. 1. Connection charges. The Corporation shall charge and collect from each owner or occupant of all individual residences, condominium units, cooperative apartments, or other structure or premises connecting with the Corpor- ation's sewer system a connection charge. Such connection charge shall be in the amount of Seven Hundred Twenty ($720.00) Dollars. The con- nection charge may be increased after review, public hearing thereon, and approval by the Board. The County and Corporation expressly recognize that $720.00 is the minimum necessary connection charge. Nothing in this section shall be construed to mean an additional charge may be made against existing service to customers, other than such amount which may be outstanding at the time this resolution is adopted. 2. Schedule of Service Connection Charges. a. Residential - Each residential unit, which is hereby defined as single family residence, rental apartment, condominium unit, cooperative apartment shall pay the basic connection charge as herein set forth. b. Motels and Hotels - Motels and hotels shall pay the basic residential unit service connection Charge, plus 25% of the basic residential service connection charge for each additional rental unit over and above one. c. Commercial - Commercial establishments shall pay the basic residential service connection charge for each six (6) plumbing fixtures or fraction of six (6) plumbing fixtures contained therein. d. Other connections not outlined herein shall be con- sidered as commercial connections. SECTION 19 RATES: The rates charged by tha C..._.__.,_.. U� , N�ru��on for its service hereunder shall be fair and reasonable and designed to meet all neces- sary costs of the service, including a fair rate of return on the net valuation of its properties devoted thereto (such as the value of sewer lines, manholes, lift stations and appurtenances) 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 Corpor- ation shall have authority to charge and collect not to exceed the following rates: 1. Sewer service to dwelling unit: $11.05 per month, per unit, for kitchen and one bathroom; an additional $5.20 per month for each additional bathroom or laundry or toilet having a connection, directly or indirectly, to Corporation's sewer lines. 2. Sewer service to commercial or other facilities than dwelling units: a. Hotels, motels or other facilities offering transient or quest accommodations: Minimun charge of $26.00 per month, plus $5.20 per month per bathroom in excess of five (for facilities of- fering food service as well as accommodations, see below for ad- ditional charges). b. Restaurants, bars, clubs and other facilities providing food or drink as primary services: Minimum charge of $26.00 per month, plus $5.20 per month additional for each twenty (20) seats, or any fraction thereof, in excess of twenty. C. All other commercial facilities: Minimum charge of $26.00 per month, plus an additional $5.20 per month for each room in excess of two having a connection, directly or indirectly, to Corporation's sewer lines. County expressly agrees that the above -said rates are the minimum necessary for Corporation to earn a fair rate of return. Corporation's rates shall at all times be subject to review and ap- proval of the Board, which shall occur not less often than once every three (3) years. No change may be made by Corporation in the basis of its rates without having a public hearing thereon. The Corporation shall, at all times, have the right of review by the County for items of uncontrollable overhead, which in- clude, but are not limited to, energy and chemical costs. Upon ap- proval by the Board, the cost of uncontrollable overhead shall be added to the rates as a separate item, subject to semi-annual review by the Board. SECTION 20 ACCESS TO RECORDS: The County shall have access, at all reasonable business hours, to the Corporation's plans, contracts, engineering data, accounting, financial, statistical, consumer and service records relating to the property and the operation of the Corporation and to all other records, required to be kept hereunder, and it shall file such accounting reports and data with the County at the time of review of rates provided SeCf4orl 1h ` .r. ���1-1 1y kinciuding un- controllable overhead) and connection charges, provided in Section 16. -13- SECTION 21 ANNUAL REVIEW: The County shall review and inspect the physical treatment plant, premises thereof, and the collection system a minimum of once annually (hereinafter, required review). The required review shall be performed within the two weeks prior to or after the anniversary date of the adoption of this Resolution. The required review and any other review and inspection performed at the option of the County shall be performed after County gives Corpor- ation a minimum of 24 hours' notice. All physical reviews shall be for the purpose of assuring continued satisfactory operation of the facilities by the Corporation. Any deficiencies noted by the County shall be provided to Corporation in a written list. Cost of the re- quired review, which may take one to two days of Department staff time, shall be borne by the Corporation. SECTION 22 TRANSFER OF FRANCHISE: The Corporation 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. The Corporation shall not sell, transfer, or assign the majority of the stock of the Corporation in such manner as to effectively transfer the control of the Corporation without the approval of the Board. 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 hereof. This Franchise shall not be otherwise trans- ferrable and assignable until notice or request for transfer and assign- ment shall be given by the Corporation to the Board, in writing, ac- companied by a request from the proposed transferee, which application shall contain information concerning the financial status and other qualifications of the proposed transferee and such other information as the Board may require; excepting, however, where such transfer is made to the County under the provisions of Sections 23 and 24. A public hearing shah be held on such request. -14- SECTION 23 TERMINATION FOR CAUSE: 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: 1) Give the Corporation written notice specifying the deficiencies or defaults and a reasonable time within whirh the Corporation shall remedy the same. 2) Petition for a public hearing if the deficiency or default iias not been remedied within the time specified in the notice. 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 therfor are found by the Board. The Board shall review any claims for repair or replacement as exist, ordering same to be per- formed by the County. Such repairs shall be paid for from the funds held in escraw des... in 'bed x_ . .Jc l.bl U11 17. If the Board wholly terminates and cancels this Franchise, the value of the treatment plant, all related utility facilities in- cluding assets in the ground, and the plant site thereof shall be determined by a panel of appraisers authorized by the County and the Corporation. Such group shall consist of qualified appraisers having the M. A. I. designation of the American Institute of Real Estate Ap- praisers or the S. R. E. A. designation of the Society of Real Estate Appraisers, constituted as follows: 1. County -Appointed Appraiser 2. Corporation -Appointed Appraiser 3. An Appraiser selected by the two above persons The appraisers so authorized and constituted shall make a final de- termination of fair market value of the treatment plant, all related utility facilities including assets in the ground, and the plant site thereof which determination shall be final and binding upon the County and the Corporation. The Corporation expressly agrees that the panel of appraisers shall not consider intangibles such as customer lists, profits or losses, in their appraisal, nor n,.ay Corporation make a claim therefor. County may only acquire the treatment plant, site thereof, and on-site related utility facilities for the purpose of operating a sewer treatment plant facility servicing the territory set forth in Section 4. If the Board enters order pursuant to such hearing the the Corporation or any otHer person feels aggrieved by such order, the Corporation or such other person may seek appeal or review of the Board's action by proceedings in the Circuit Court of the County. SECTION 24 TERMINATION NOT FOR CAUSE: If the County desires to term- inate the Franchise for reasons other than the Corporation's failure or refusal to promptly and faithfully keep, perform, and abide by each and all of the terms and conditions of this Franchise, then the Board shall: 1. Demonstrate it has the present ability to service the territory ::dth u County/mu ,, �u���y��uunicipai system. 2. Give the Corporation written notice of not less than ninety (90) days time of its intent to terminate the Franchise. Within this time, the Corporation shall pre- pare any claims it may have. 3. Petition for a public hearing after the notice period concerning the termination and claims related thereto has expired. After such hearing, at which all interested parties shall be heard, the Board may wholly terminate and cancel the same determining the claims and the just costs thereof. If the Board wholly terminates and cancels this Franchise, the value of the treatment plant, all related utility facilities in- cluding assets in the ground, and the plant site thereof shall be determined by a panel of appraisers authorized by the County and the Corporation. Such group shall consist of qualified appraisers having the M. A. I. designation of the American Institute of Real Estate Ap- praisers or the S. R. E. A. designation of the Society of Real Estate Appraisers, constituted as follows: -16- 1. County -Appointed Appraiser 2. Corporation -Appointed Appraiser 3. An Appraiser selected by the two above persons The appriasers so authorized and constituted shall make a final de- termination of fair market value of the treatment plant, all related utility facilities including assets in the ground, and the plant site thereof which determination shall be final and binding upon the County and the Corporation. The Corporation expressly agrees that the panel of appraisers shall not consider intangibles such as customer lists, profits or losses, in their appraisal, nor may Corporation make a claim therefor. County may only acquire the treatment plant, site thereof, and on-site related utility facilities for the purpose of operating a sewer treatment plant facility servicing the territory set forth in Section 4. The Board may not cancel in part, limit, or restrict this Franchise where the Board's action is without cause, but must assume entire responsibility for servicing the territory described in Section 4. All monies, revenues, or other funds which are due and owing to the Corporation prior to the actual date of termination shall accrue to the Corporation, whether or not such monies have been col- lected on or before the date of termination. Those funds accumulted in the escrow account described in Section 17 shall accrue to the benefit of the Corporation. If the Board enters order pursuant to such hearing and the Corporation or any other person feels aggrieved by such order, the Corporation or such other person may seek review and appeal the Board's action by proceedings in the Circuit Court of the County. SECTION 25 PUBLIC HEARING: As certain members of the general public may be interested in the proceedings, any "hearing" or "public hearing" required by the terms or conditions of this Grant of Franchise shall be a public hearing. The following procedures shall be followed: 1. A petition shall be made to the Board, not less than -17- seven (7) days before the regularly scheduled meeting, to be placed on the next agenda. 2. The Board shall, at such regular meeting, set the date for public hearing which shall be held within a reasonable time. 3. The moving party shall, at its own expense, publish notice of the said public hearing in a newspaper regu- larly published in the County, at least one (1) time, not less than one week, nor more than one month preceeding such hearing. Certified proof of hearing shall be filed with the Board. 4. The Board shall dispose of the matter before it expe- detiously, but in no event shall it delay a decision more than ninety (90) days from the date of the initial public hearing. SECTION 26 EFFECTIVE DATE: 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 take over the systems as herein provided in Sections 24 and 25. The rate provisions herein set forth in Section 19 shall be effective from and after September 1, 1981. The Corporation shall, within sixty (60) days from the time of the adoption of this resolution, file with the Board its written acceptance of this Franchise, all of its terms and conditions, and further, if such acceptance is not filed within the time specified, then the provisions of this Franchise shall be null and void. SECTION 27 SEVERABILITY: 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. -18- 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 at- tested by its Clerk, all pursuant to the resolution of the Board of County Commissioners adopted on the 19th day of August, 1981, Signed, sealed and delivered COUNTY OF INDIAN RIVER, FLORIDA in the presence of: .. By s Chairman•of' a oard of County Commiissi n J Attest: ACCEPTANCE OF FRANCHISE HUTCHINSON UTILITIES, INC., a Florida corporation, does hereby accept the foregoing Franchise and for itself and its successors and assigns, does hereby covenant and agree to comply with and abide by all of the terms, conditions and provisions therein set forth and con- tained. DATED this ISd- day of L6�6't, 1981. �Q (COYORATE SEAL) STATE OF FLORIDA HUTCHINSON UTILITIES, INC. By C 4 Lou iel re ident Attest: Z-7 Anthony J. 1 ,,,SYcre ry COUNTY OF INDIAN VER Lo �'�{• �i ' Notary Pubk*, State of Florida ),�-at Large. Xy Commission expires: -19- CLERK O�;" IT COURT 002001 89'7io��i 2983tO "~~' 58.00 DOC/RCC TOTAL i 58^00 Cg CK :C" 58.»» 2 AMOUNT TENDERED ^O0 C8AwaE RECORDING DEPT . ,