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HomeMy WebLinkAbout1985-037e - RESOLUTION NO.85-37 4A RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF INDIAN RIVER COUNTY AUTHORIZING AN INCREASE IN RATES QWfED IN RESOLUTION NO. 73-83 AND PROVIDING FOR ® CERTAIN MODIFICATION TO TETE FRANCHISE AGUM DTT Ia] M AS THE "EVELYN F. NEJILLE, INC., SEWER FRANCHISE". NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY CODMSSIOENRS OF INDIAN RIVER COUNTY that Resolution No. 73-83 be amended to reflect the following revisions. Section I. Section 3 of Resolution No. 73-83 is hereby amended to read as follows: SECTION 3 There is hereby granted by the County to the Carpany the non-exclusive franchise, right and privilege to erect, construct, operate and maintain a sewer system within the prescribed territory as herein provided and for these purposes to sell and distribute sewer services within the territory and for these )urposes to establish the necessary facilities and equipment and to lay and maintain the necessary lines, pipes, mains and other appurtenances necessary therefore in, along, under and across the public alleys, streets, roads, highways and other public places of the County; provided, however, that the County reserves the right to permit the use of usch public places for any and all other lawful purposes and subject always to the parawount right of the public in and to such public places. The franchise hereby granted shall not be interpreted so as to require any individual property owner within the franchise area to connect to the sewer facilities of the Cc mpany. Section II. Section 4 of Resolution No. 73-83 is hereby amended to by adding the following paragraph: SECTION 4 SERVICE REQUIREMENTS The Utility shall provide service within the franchise territory on a non-discriminatory basis as if it were regulated under Florida Statute Chapter 367 (1980), except to the extent that said provisions are in conflict with the provisions of the franchise. Section III. Section 5 of Resolution No. 73-83 is hereby amended to read as follows: SECTION 5 1. The Company 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, to include the establishment of a utilities coimiission which would exercise the delegated right of the County retained herein. 2. The Utility shall supply the County with copies of its Department of Environmental Regulation monthly operating reports and trouble reports, if any. 3. 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 and increase fees and charges 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 conflict with the rights herein do granted and not in conflict with the laws of the State of Florida. The County shall have the right, but not the duty, to inspect all construction or installation work performed. ® 4. Franchisee understands that the County is now considering the extension of the County water and/or wastewater system to this franchise area. Should the County extend the county system, this shall be considered a temporary water and/or wastewater franchise and upon the demand of the County, franchisee shall discontinue its water and/or wastewater operation and immediately connect to the County system and each customer shall pay to the County all the sums due under the County's standard schedule of rates and fees. Section IV. Section 6 of Resolution 73-83 is hereby amended to read as follows: SECTION 6 1. It is expressly understood and agreed by and between the Company and the County that the Company shall save the County and members of the Board harmless from any loss sustained by the County on account of any suit, judge ent, execution, laim or demand whatsoever resulting from negligences on the part of the Company in the construction, operation or maintenance under the terms of this franchise. 2. The parties agree that in the construction of this section, the claim of any person resulting from negligence on the part of the Company may be prosecuted directly by such person against the Company as if no governme-ntal i.neremmity accrued to the County by virtues of the Ccmpany's use of a public place of the County. The County shall notify the Company promptly after presentation of any claim or demand. 3. The Company shall maintain adquate public liability and property damage insurance in such amounts as set forth in, to wit: Exhibit "A" attached hereto and incorporated herein and said insurance policy or policies shall name the County as an additional insured. The Utility shall cause the County to be duly notified by the insurer in the event of any modifications or deletions of the insurance as set forth in said Exhibit "A". Said amounts shall be adjusted by the Utility, 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 Utility. Section V. Section 7 of Resolution 73-83 is hereby amended to read as follow: SECTION 7 CERTIFICATION OF COMPLIANCE 1. The Company shall maintain and operate its water/wastewater plant and system, and, render efficient service in accordance with the rules and regulations as are or may be set forth by the Department of Environmental Regulation and the Board from time to time, which shall include but not be limited to "Construction Specification for Water Treatment/Distribution and Sewage Treatment/Collection Facilities" promulgated by Indian River County Utilities Department, July 1980, or as amended. The County shall require the Company to comply with the above standards. Prior to the issuance of a construction permit, the Company's project engineers shall certify to the County that the design standards as set fortis in said "Construction Specifications" of Indian River Utilities Department, July, 1980, or as amended, will be met by 4' completion of the project as shown on the plans submitted. The Company shall cause said certification to be submitted to the County along with the Florida Department of Environmental Regulation applications and plans, for County review. Submission to the County for review may occur ® simultaneously with submission of said documents to the Florida Department of Environmental Regulation. Upon approval by the County of the plant and system, a permit shall be issued to the Company for the construction and/or operation thereof. 2. Prior to the issuance of a construction permit, certification from the Indian River County Fire Department must be obtained certifying fire flaw requirements have been met. is 3. Upon the completion of all construction of the water and wastewater treatment plants and distribution and collection systems, the project engineer for the Company shall certify, under seal, that the system has been constructed substantially in accordance with the plans and specifications previously approved and that the systems meet all of the standards required by the County. The certification shall include submission to the County of two sets of "as-built"(as defined by the County) drawings, consisting of one set in reproducible vellums and one set of regular blueline prints; and that the systems meet al.l of the standards required by the County, including pressure and leakage tests, chlorination and bacteriological. tests, infiltration and exfiltration tests. Upon receipt of certification from the engineer, the County will issue a letter approving the construction of the water and wastewater systems. No service is to be provided to customers until such time as t1m County issues a letter of approval. The issuance of said letter shall riot be unreasonable withheld. The Conpany shall grant necessary easements to the County without charge to connect the water and/or wastewater system to the County Master Water and/or Wastewater System together with such easements as are necessary to provide access to the water and/or wastewater system, where and if the County makes water and/or wastewater service available to the project. The Conpany agrees to pay all fees which may be applicable during the operation of the system. Section VI. Section 8 of Resolution No. 73-83 is hereby amended to read as follows: SECTION 8 CERTIFICATION OF OPERATIONS AND DMMI NANCF 1. All of the facilities of the Conpany shall be constructed in accordance with the plans and specifications approved by the Department of Environmental Regulation of the State of Florida and Indian River County Utilities Department. The manner of treatment and distribution of water and the manner of collection and disposal of wastewater shall at all time be and remain not inferior to the quality standards for public water distribution and public sewage collection and other rules, regulations and standards now or hereafter adopted by the Department of Environmental Regulation of the State of Florida, or other governmental body having jurisdiction, including Indian River County. 2. The Conpany shall supply the County with an annual report of operations and maintenance certified by the Company Engineer who must be registered in the State of Florida. Section VII. Section 9, paragraph (b), subparagraphs 1, 2, and 3, of Resolution No. 73-83 is hereby amended to read as follows: SECTION 9 a) County Utilities Director b) Conpany Engineer 40 c) one person selected by the above two persons Section VIII. Section 10 of Resolution No. 73-83 is hereby amended to read as follows: ® SECTION 10 DEDICATED EASEMENTS All pipes, pumps, hydrants, mains, valves, blowoffs, sewer mains and manholes and other fixtures laid or placed by the Company for the water and/or wastewater system shall be so located in the dedicated easements in the County after approval by the County Engineer so as not to obstruct or interfere with other uses made of such public places • already installed. The Company shall, whenever practicable, avoid interfering with the use of any street, alley or other highway where the paving or surface of the saw would be disturbed. In case of any disturbance of oounty-vvmed pavement, sidewalk, ariveway or other surfacing, the Company 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 or to relocate or widen or otherwise change any such County -moaned right-of-way, the Company shall, upon reasonable notice by the County, remove, relay, and relocate its fixtures at the Company's expense. The Company 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 any such public place under or upon which the Conpmiy shall have located its facilities shall be closed, abandoned, vacated or discontinued, the Board may terminate such easement or license of the Conpany thereto; provided, however, in the event of this termination of easement, the party requesting such termination shall pay to the Conpany in advance, its cost 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 fifteen (15) feet in width for the benefit of the Company and its facilities. Section IX. Section 12, paragraph (b), of Resolution No. 73-83 is hereby amended to read as follows: SECTION 12 (b) The Company shall not be required to furnish, supply, install and make available sewer services to any person within the territory as hereinafter set forth, unless the same may be done at such a cost to the Company as shall make the addition proposed financially and physically feasible. Financially feasible shall mean that a fair and reasonable rate to be charged by the Company for all the services under this franchise will produce to the Company a sum sufficient to meet all necessary costs of the services including a fair rate of return to be realized by the Company under efficient and economical management. The burden of showing that a prospective service to the area is not financially feasible shall be the burden of the Company. Section X. Section 13 of Resolution No. 73-83 is hereby amended by adding the following paragraph: SECTION 13 Any sale or transfer by the Company or partners of the company taking place contrary to the terms and conditions of this Section shall be considered by the Board to be a default by the Company under this franchise agreement and subject this franchise to termination. Section XI. Section 14 of Resolution No. 73-83 is hereby amended to read as follows: SECTION 14 RATE SCHEDULE E� 1. When this franchise takes effect, the Company shall have authority to charge and collect not to exceed the following schedule of rates, which shall remain effective until changed or modified as herein, provided to -wit: Exhibit "B" 2. The rates charged by the Company for its service hereunder • shall at all times be compensatory and shall be fair and reasonable and designed to meet all necessary costs of the service, including a fair rate of return on the Company's investment under efficient and economical management. The Company agrees that the County has the authority to enter into this Franchise Agreement and the regulation of said Company. Company 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. In setting said rates, the County shall be guided by the standards set forth in Florida Statute 367.081 relating to the establishment of rates and charges. In any evF_it, the Company shall always be responsible for justifying its proposed rates and charges by the submission of accounting and engineering data to the County Utilities Director. Fates and charges may be amended, upon proper Justification by the Conpany. Other provisions of this Ordinance deal with the mechanisms of the setting of rates and charges. 3. The Company shall at any time, when requested by a consuirer, make a test of the accuracy of any meter; prior, however, to any test being made by the Company, the sum of fifteen dollars ($15.00) shall be deposited with the Company by the party requesting such test. Such sum shall be returned if the test shows the meter to be inaccurate in its delivery. If the meter is inaccurate, the meter will be repaired or changed, and should the meter reading calibrate too high, a billing adjustment will be made for no more than the past six month's actual readings. Whenever it is necessary to shut off or interrupt service for the purpose of making repairs or installations, the Company shall do so at such times as will cause the least amount of inconvenience to its consumers and, unless such repairs are unforeseen and immediately necessary, it shall give not less than five (5) days' notice thereof to its consumers for non -emergencies. 4. (a) The approved rates of any utility which receives all or any portion of its utility service from a governmental agency or from u water or sewer utility regulated by the Board and which redistributes that service to its utility customers shall be automatically increased or decreased without hearing upon verified notice to the Board 30 days prior to its implementation of the increase or decrease that the rates charged by the governmental agency or other utility has changed. The approved rates of any Company which is subject to an increase or decrease in the rates that it is charged for electric power or the amount of ad valorem taxes assessed against its property shall be increased and decreased by the utility, without action by the Board, upon verified notice to the Board 30 days prior to its implementation of the increase or decrease that the rates charged by the supplier of the electric power or the taxes imposed by the governmental body have changed. The new rates authorized shall reflect the amount of the change of the ad valorem taxes or rates imposed upon the utility by the governmental agency, other utility or supplier of electric power. Provisions of the subsection shall not prevent a utility from seeking changes in rates pursuant to the provisions of subsection. (b) Before inplementing a change in rates under this subsection, the Company shall file an affirmation under oath as to the accuracy of the figures and calculations upon which the change in rates is based, and that the change will not cause the Ccnpany to exceed the ® range of its last authorized rate of return. (c) If, within 24 months of an adjustment in the rates as authorized by this subsection, the Board shall find that a utility did thereby exceed the range of its last authorized rate of return, it may 40 order the utility to refund the difference to the rate payers. This provision shall not be construed to require a bond or corporate undertaking not otherwise required. (d) Notwithstanding anything herein to the contrary, no utility may adjust its rates under this subsection more than two times in any 12 nunth period. 0 FRANCHISE FEE 1. The Ccnpany hereby agrees to pay to the County a franchise fee in the amount of six percent (6%) of the Company's annual gross receipts or operating costs (which includes the rate of return.) in the event Conpany does not have a rate schedule (or the sum of five hundred dollars ($500), whichever is greater), derived from Mnthly service charges to defray the cost of regulation and for use of County rights-oi-way and public places. The Conpany shall pay the 6% franchise fee quarterly. Said fee shall be shown as a separate additional charge on utility bills. 2. The Ccnpany shall supply the County with a copy of its annual report and financial statements. All records and all accounting of. CaTany shall be in accordance with the Uniform System of Accounts of the National Association of Regulatory Utilities Comttissioners and general accepted accounting principles. Within ninety (90) days after close of fiscal year, the Coapany shall submit financial statements prepared by a CPA and in accordance with general accepting accounting standards and NARUC. Upon demand by the Board the Company will submit audited financial statements certified by a CPA. Also, a letter from a CPA certifying that the six percent (6%) franchise fee and the two and one-half percent (22%) renewal and replacement account has been collected and disbursed in accordance with the terms of this Agreement. RENEWAL & REPLACEMRU ACCOUNT 1. Two and one if percent (22%) of the gross revenues (or $100 whichever is greater) of the Company shall be placed in an interest bearing renewal and replacement account for purposes of renewal and/or replacement of the capital assets of the water and/or wastewater system of the Ccnpany. Additionally, the Conpany shall initially fund said account with one thousand dollars ($1000) to be deposited with the County Finance Department which will also be reserved for capital maintenance items. Interest shall accLumlate and remain in said account annually. Said funds shall be used as a sinking fund and applied only for renewal and/or replacement of the water and/or wastewater system by the Company as the need arises; the percentage required to be placed in the renewal and replacement account may be amended after review by the County as necessary to maintain a sufficient account balance taking into account the general condition of the system. The County is granted the right to make necessary repairs using said funds in the event of default on the part of the Conpany in maintaining the quality standards established herein. 2. Should the County terminate the franchise for cause, the renewal and replacement fund shall vest in the County. Section XII. Section 15 of Resolution M. 73-83 is hereby amended by adding the following paragraph: SECPION 15 The Company shall supply the County with an annual report of operations and maintenance certified by the Conpany Engineer who must be registered in the State of Florida. 40 Section XIII. Section 16 of Resolution No. 73-83 is hereby amended to read as follows: S=ION 16 If any person serviced by the Company under this franchise • complains to the Board concerning rates, charges and/or operations of same and the Company, after request is made upon it 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 Company 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 Company feels it is aggrieved by such order, the Company may seek review of the Board's action by proceedings in the Circuit Court of the County; otherwise, the Company shall promptly comply with the order of the Board. Section XIV. Section 17 of Resolution No. 73-83 is hereby amended to read as follows: SECTION 17 WrICE OF ADJU5R4ENP OF RATES Upon the initial connection of any customer to the wastewater system or upon the reconnection of any new customer to the wastewater system, the Company shall funtish, by mail, a notice setting forth the rate schedule then in effect and further containing the following statement: The wastewater rates set forth herein have been authorized pursuant to Indian River County Wastewater Franchise Resolution No. 85-37 as amended. Said water/wastewater rates are sect to adjustment pursuant to said Resolution upon proper showing by the Company. Said rates are also subject to adjustment in the event the wastewater franchise is terminated and Indian River County commences to furnish wastewater service to your property." CHANGE IN RATE SCHEDULE 1. should the Company desire to establish rates and charges or should the Company desire to increase any charges heretofore established and approved by the Board, then the Company shall notify the Board in writing, setting forth the schedule of rates and charges which it proposes. The Company shall pay any rate structure review fee as the County may then have in effect and shall furnish the County with all information requested by the County that is pertinent to the proposed new rate schedule. 2. A public hearing shall then be held on such request, of which notice shall be given by publication in a newspaper regularly published in said County at least one time not more than one month or less than one week preceding such hearing. Certified proof of publication of such notice shall be filed with the Board. 3. Said hearing may thereafter be continued for a reasonable time as determined by the Board. If the Board enters an order pursuant to such hearing and the Company feels aggrieved by such order, then Ccxgmpany may seek review of the Board's action by filing a petition for Writ of Certiorari in the Circuit Court of the Countv. The Board shall act on the rate request within ninety (90) days following the public hearing. Section XV. Section 19 of Resolution No. 73-83 is hereby amended to read as follows: SECTION 19 ® DEFAULT of FRANCHISE 1. Zf the Company fails or refuses to promptly faithfully keep, perform and abide by each and all of the tezms and conditions oe this franchise, then the Board shall give the Company written notice of such deficiencies or defaults and a reasonable time within which the Cocpany 40 shall reedy the same, which notice shall specify tt:e deficiency or default. 2. If the Company fails to remedy such deficiency or default within a reasonable time, the Board may thereafter schedule a hearing concerning the same with reasonable notice thereof to the Company, and after such hearing at which all interested parties shall be heard, the Board may levy liquidated damages of no less than fifty dollars ($50) 0 per day that said deficiency or default exists from the date of said hearing held by the Board; and the Board may further limit or restrict this franchise or franchise territory 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 Company feels aggrieved by any such order, the Company may seek review of the Board's action by filing a petition for Writ of Certiorari in the Circuit Court of the County. Section XVI. Section 21 of Resolutic. No. 73-83 is hereby amended to read as follows: SECTION 21 In the event of an acquisition by the County, or the utilization of the County's own plants, the County shall receive the wastewater collection system free of cost and in good repair, wear and tear excepted. The Company agrees to grant to the County any easements necessary to connect the wastewater system to the County's wastewater systems without charge. The customers shall pay all impact fees applicable upon acquisition or upon connection to County's own plants. Section XVII. Section 22 of Resolution No. 73-83 is hereby amended to read as follows: SECTION 22 CONPRACIUAL AGREEMMT It is specifically agreed by and between the parties hereto that this franchise shall be considered a franchise agreement between the Company and the County and as such a contractural instrument recognized under the Statutes and Laws of the State of Florida. This franchise agreement is not intended to create rights or actions running in favor of third parties, except as herein specifically provided. NON-PERFORMANCE Provisions herein to the contrary notwithstanding, the Company shall not be liable for the non-performance or delay in performance of any of its obligations undertaken pursuant to the terms of this franchise where said failure or delay is due to causes beyond the Company's control, including, without limitation, causes such as "Acts of God", unavoidable casualties, labor disputes, etc. EXECUTION OF FRANCHISE If any word, sections, 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 MTREOF, 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 20th day of March , 1985. • Signed, sealed and delivered COUNTY INDIAN RIVER, FLORIDA in the presence of: • By t is B. Lyons, C a an Board of County Co i sioners Attest: _ AWlegffi form Clerk aic�enburg ACCEPTANCE OF FRANCHISE y V.112112E, INC., 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 , 1985. WITNESS: EVELYN F. NEVILLE, INC. By EVEL•YN F. NEVILLE, PRESIDENT 9 C> 40 I EXHIBIT A ®�� Y THIS I:L,i fl Il 7 ■i {` I:I. t.iu uFl nrE olH Or THIS CEIII IFI(nT!JO:_, I.''S I1`J h6] EI II:r i;ti•'. 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VVdRE LI.A rOR•! i . FO 1.1 � I WORKER'S COMPENSArICItI - - 7r �'rt�.t�•; :,t� and EMPLOYCR'S LiABILIT'i I _ .. yL. y —__-.—.. F: •, r'. OTHER acRII•noY OF,.Pf.r nnn` A,:: •..... -. .. �Ur?:IIIGi+(I L. :�i�`;L�F(. I_U; INDIAN r"IYEP COUNTY -71 Cancellation:.;'tL,:I:I ;0 AUG: J; - -- -- ---------------------- --------- _ .. AI.Ig 27? 1989' D COUNTY UTILITIES 1390 25TH STREETS VERO REACH FLORIDA 32960 - -- - - SANDRA BORROWSKAS Q.'I? 40 40 •S® PROPOSED RATE SCHEDULE Flat fee per unit $48.65 Impact fee (neva customers) $1250.00 Exhibit "B" 4��