HomeMy WebLinkAboutORDINANCE 0-81-8 GDC Water Distribution Systemr
r. ORDINANCE NO.
�r
AN,'ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SEBASTIAN,
FLORIDA/, GRANTING AN EXCLUSIVE FRANCHISE TO GENERAL DEVELOPMENT
UTILITIES, INC., A FLORIDA CORPORATION, TO OPERATE AND MAINTAIN
A WATER DISTRIBUTION SYSTEM WITHIN A PORTION OF THE CITY OF
SEBASTIAN, FLORIDA; SETTING FORTH CONDITIONS AND PRIVILEGES
ACCOMPANYING THE GRANT OF FRANCHISE; PROVIDING FOR RATES AND
CHARGES, AND FOR SERVICE STANDARDS; PROHIBITING THE USE OF
INDIVIDUAL WATER SYSTEMS, WITHIN THE FRA14CHISE AREA; PROVIDING
FOR WATER CONNECTIONS AND PENALTIES FOR THE VIOLATION OF SUCH
PROVISIONS; AND REPEALING ORDINANCE NO. 175 AND 203 AND ANY
ORDINANCES GRANTING A WATER FRANCHISE WITHIN THE CITY OF SEBASTIAN,
FLORIDA TO GENERAL DEVELOPMENT CORPORATION, A DELAWARE CORPORATION
OR GENERAL DEVELOPMENT UTILITIES, INC., A FLORIDA CORPORATION.
Florida:
************
BE IT ORDAINED by the City Council of the City of Sebastian,
WHEREAS, the City Council of the City of Sebastian,
Florida, may grant public water franchises to applicants therefor
who desire to operate public water systems within the limits of the
above mentioned city, and
WHEREAS, General Development Utilities, Inc., a Florida
corporation, hereinafter called the Company, has requested the City
Council of the City of Sebastian, Florida, hereinafter called the-,
Council, to grant unto it an exclusive franchise for a public water
system to be operated within the City of Sebastian, Florida,
WHEREAS, the Council has agreed to grant unto the Company
an exclusive franchise for a public water system within the City of
Sebastian,
NOW, THEREFORE, for and in consideration of the mutual
covenants and agreements of the parties hereto, hereinafter set
forth, and in further consideration of the mutual benefits and
advantages accruing to the said parties hereunder, the parties
hereto covenant and agree as follows:
Section 1: There is hereby granted to the Company for a
period of thirty (30) years from the date hereof, an exclusive
franchise to construct, operate and maintain a public water system
within Units 7, 9, Phase I of 16, and 17 of Sebastian Highlands
Subdivision, an area located within a portion of the City of Sebastian,
Florida, more specifically described in Exhibit "A" attached hereto,
and made a part hereof, and in connection therewith, to construct,
maintain, and repair water lines, conduits, hydrants, service
pipes, pumping stations, and any and all other things necessary for
the purpose of conducting and distributing water in such areas; to
make housing and building connections upon, along, in and under the
roads, streets, alleys, easements and any other public places in
said areas; to repair, replace, enlarge or extend the same, and to
carry on the business of furnishing water in said area for a
consideration, subject to such rules and regulations as the said
Council may adopt and impose, and further subject to the conditions
of this franchise'.
The City shall have the right to inspect all construction
or installation work performed to ensure compliance with all govern-
ing regulations. All the facilities of the Utility shall be
constructed in accordance with plans and specifications approved by
the City Engineer and the Florida Department of Environmental
Regulation. The quantity and quality of water delivered and sold
shall at all times and remain not inferior to the quality
standards for public Vv'ater supply, "and other rules, regulations,
and standards now in force or hereafter adopted by the Florida
Department of Environmental Regulation.
The City Engineers shall make inspection during construction
of the facilities. The Utility shall pay to the City such reasonable
permit fees as set forth in the fee schedule established by Resolution
hereinafter by the Council.
Upon completion of a portion of the system, a detailed
and accurate set of record drawings showing location, sizes, and
types of water mains, fittings, fire hydrants, and other pertinent
information shall be furnished to the City on reproducable mylars.
Section 2: For the purpose of carrying into effect the
privileges and purposes granted by this franchise, the owner of
said franchise is hereby authorized to make all necessary excavation
in said roads, streets, alleyways and public grounds situated in
the area aforedescribed. That the facilities shall be so located
or relocated and so erected as to interfere as little as possible
with traffic over said streets, alleys, bridges and public places,
-2-
f 'r
and with reasonable egress from and ingress to abutting property.
The location or relocation of all facilities shall be made in
compliance with such rules and regulations as are now or hereafter
may be imposed by the Council, but not so unreasonably as to interfere
with the proper operation of Company's facilities and services.
That when any portion of a street is excavated by Company in the
location or relocation of any of its facilities, the portion of the
street so excavated shall, within a reasonable time and as early as
practicable after such excavation, be replaced by Company at its
expense and in as good condition as it was at the time of such
excavation.
Section 3: Rates; Procedure for Fixing and Changing.
(1) Except as provided in subsection (4) rates and
charges being charged and collected by a utility shall be changed
only by approval of the Council. The Council shall, either upon
request or upon its own motion, fix rates which are just, reason-
able, compensatory, and not unfairly discriminatory.
(2) The Company and its successors and assigns
shall at all times be limited in its charges for services furnished
in accordance with its franchise to a schedule of charges which
shall be presented to and approved by said Council. The initial
water rates and other charges described in Schedule "1" attached
hereto and made a part hereof shall be the rates in effect pursuant
to this grant until modified or changed by the parties.
The Company may, if it deems it necessary to amend or
change said schedule of charges, give the Council notice in writing
of same. Within 60 days after notice as aforesaid, the Council
shall authorize and hold a public hearing and within 30 days after
such public hearing, if the Council shall decline to act, then the
Company may forthwith put into effect such amendment or change of
schedule. It is understood and agreed that if the Company should
raise charges as hereinabove stated, the Company shall provide the
Council with a corporate performance bond or guarantee for a
period of 90 days. In the event the Council should deny the raise
at any time during this 90 day period, the Company shall refund to
its customers the monies collected by virtue of the raise. However,
It
t
upon the expiration of the said 90 day period, if no action is
taken by the Council theretofor, the monies shall become the funds
of the Company and there shall be no further obligation on the part
of the Company, the the corporate bond or guarantee shall no
longer be in force, and shall be released and the increase in
charges shall continue the same as if the request of the Company
had been granted.
The Council shall, either upon request or upon its own
motion, fix rates which are just, reasonable, compensatory, and not
unfairly discriminatory. In all such proceedings, the Council
shall consider the value and quality of the service and the cost of
providing the service, which shall include, but not be limited to,
debt interest, the utility's requirements for working capital,
maintenance, depreciation, tax, and operating expenses incurred in
the operation of all property used and useful in the public service
and a fair return on the utility's investment in property used and
useful in the public service. However, the Council shall not allow
the inclusion of contributions -in -aid -of -construction in the rate
base of any utility during a rate proceeding, and accumulated
depreciation on such contributions -in -aid -of -construction shall not
be used to reduce the rate base, nor shall depreciation on such
contributed assets be considered a cost of providing utility service.
Contributions -in -aid -of -construction shall include any amount or
item of money, services, or property received by a utility, from
any person or governmental agency, any portion of which is provided
at no cost to the utility and which represents a donation or contribu-
tion to the capital of the utility and which is utilized to offset
the acquisition, improvement, or construction costs of the utility's
property, facilities, or equipment used to provide utility services
to the public. The Council shall also consider the utility's
investment in property required by duly authorized governmental
authority to be constructed in the public interest within a reasonable
time in the future, not to exceed 24 months.
(3) The Council, in fixing rates, may determine the
prudent cost of providing service during the period of time the
rates will be in effect following the entry of a final order relating
-4-
to the utility's rate request and may use such costs to determine
the revenue requirements that will allow the utility to earn a fair
rate of return on its rate base.
(4)(a) The approved rates of any utility which
receives all or any portion of its utility service from a govern-
mental agency or from a water utility regulated by the Council and
which redistributes that service to its utility customers shall be
automatically increased or decreased without hearing, upon verified
notice to the Council 30 days prior to its implementation of the
increase or decrease that the rates charged by the governmental
agency or other utility have changed. The approved rates of any
utility which is subject to an increase or decrease in the rates
that it is charged for electrical power or the amount of ad valorem
taxes assessed against its property shall be increased or decreased
by the utility, without action by the Council upon verified notice
to the Council 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 this subsection shall not prevent a utility from
seeking changes in rates pursuant to the provisions of subsection
(2) .
(b) Before implementing a change in rates under
this subsection the utility 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
utility to exceed the range of its last authorized rate of return.
Whoever makes a false statement in the affirmation required hereunder
which he does not believe to be true in regard to any material
matter shall be guilty of a felony of the third degree, punishable
as provided in s. 775.082, s. 755.083, or s. 775.084, Florida
Statutes.
(c) If, within 24 months of an adjustment in the
rates as authorized by this subsection. The Council shall find
-5-
that a utility did thereby exceed the range of its last authorized
rate of return, it may order the utility to refund the difference
to the rate payers. This provision shall not be construed to
require a corporate performance bond not otherwise required.
(d) Notwithstanding anything herein to the contrary,
no utility may adjust its rates herein to the contrary, no utility
may adjust its rates under this subsection more than two times in
any 12 -month period.
Section 5: Any tax or charge imposed by any governmental
authority on the Company which is a tax imposed solely because the
Company is a utility, as distinguished from other individuals,
corporation or business in general, may be apportioned among the
consumers as a direct tax upon the consumers without resort to the
Council for permission to increase the Company's rates.
Section 6: The Company hereby specifically agrees, that
in the construction and operation of the franchised public water
system it will, at all times, comply with such reasonable rules and
regulations as may be imposed by the said Council, and that the
design of the public water system shall be approved by appropriate
authorities.
Section 7: Reasonably sufficient, adequate and efficient
service shall be furnished by the Company engaged on the effective
date of this Ordinance in the construction or operation of a water
system to every person applying for service within the franchise
limits served by such system; provided, however, that if the furnishing
of service by the Company in compliance with any application for
service would require the extension of or addition to its existing
facilities, the Company, as a precedent to furnishing service, may
require of the applicant reasonable sums for service availability
or reasonable deposits guaranteeing compensatory revenues from the
territory to be served or reasonable contributions in aid of
construction to help defray the cost of facilities which will be
used and useful in furnishing service, or any combination thereof,
or reasonable construction or other advances evidenced by refundable
or non-refundable agreements. Failing to receive said sums, the
Utility shall not be obligated to extend service.
I
Section 8: The Company shall publish rules and regulations
governing the sale and furnishing of its services to customers,
which said rules and regulations shall contain provisions governing
the termination of its services. Said rules and regulations may be
amended by the Company at any time, but such amendments shall also
be subject to the approval of the said Council prior to implementation.
The initial rules and regulations described in Schedule "2" attached
hereto and made a part hereof shall be the rules and regulations in
effect pursuant to this grant until modified or changed by the
parties.
Section 9: Individual Water System Prohibited; Water
Connections Required; Penalty. The use of individual water systems
other than for irrigation purposes, by any person in the area where
water distribution service is available from the Company is hereby
prohibited. All persons owning improved property where a water
line is available for water distribution service shall connect the
improvements upon
such
premises
within 60 days
of
notification
by
the Utility that
such a
system
is available.
The
utility shall
at
all times inform the City of extensions which will provide service
to new customers not previously served. Any person convicted of
violating this section shall be punished by a fine of up to Five
Hundred Dollars ($500.00)., or by imprisonment up to ninety (90)
days, or by both such fine and imprisonment. Each day such condition
exists shall be considered a separate violation.
Section 10: Additional Ordinances. The City Council of
the City of Sebastian agrees to pass all ordinances necessary or
suitable both for the reasonable protection of the rights and
property of the Company and to enable the Company to enforce any of
its reasonable rules and regulations for the management, operation
and control of the services to be rendered by the Company hereunder
and to pass any reasonable ordinance or ordinances that will be
necessary or suitable in order to fully confirm to the Company the
rights herein or hereby granted or intended so to be.
Section 11: The Company shall not, at any time, transfer
its rights in any of its public water system property, or its
franchise herein granted, to any person, firm or corporation,
-7-
r W ,
without the consent of the majority of said Council. It is, however,
expressly understood and agreed that in the event the Company
should desire to transfer its rights and franchise as aforesaid to
a transferee that is qualified to operate under said franchise then
the Council shall not withhold its consent unreasonably and the
showing of qualifications shall be conclusive evidence of the right
of the Company to secure said consent for transfer.
Section 12:
The Company shall, at all times, protect and
save the City of Sebastian harmless from all damage and loss,
including reasonable attorney's fees and court costs, arising from,
out of, or by reason of the construction, operation or maintenance
of its said public water system.
Section 13:
It is specifically agreed that in the event
the Florida Public Service Commission should, at any time in the
future, assume control over franchised public water and the rates
for services therefore, the Company shall submit to the authority
of the said Florida Public Service Commission and the said Council
shall relinquish its control over said franchised public water
system to the extent, that the same is assumed by, or vested in,
the Florida Public Service Commission.
Section 14:
This franchise and all the rights, privileges,
obligations and liabilities hereunder shall be binding on the said
Council and the said Company, and their successors and assigns.
Section 15: That within thirty (30) days after the first
anniversary date of this franchise and within thirty (30) days
after each succeeding anniversary date of this franchise, Company,
its successors and assigns, shall pay to the city and its successors,
an amount which added to the amount of all city taxes, licenses and
other impositions levied or imposed upon the Company's property,
business or operations for the preceding tax year will equal six
per cent (6%) of company revenues from the sale of water service to
residential and commercial customers within the corporate limits of
the Grantor, but excluding contributions -in -aid of construction and
connection charges for the twelve fiscal months preceding the
applicable anniversary date. Any franchise fee to be collected
shall be shown as a separate item on the Company's bills to its
customers.
IM
Section 16: Within a reasonable time, which time shall
not exceed 180 days, after the City has notified the utility of its
intent to terminate the franchise and to acquire the system, the
franchise holder shall convey all of its facilities together with
all easements to the City of Sebastian. The time for conveyance of
the system may be extended by action of the City Council should the
utility demonstrate to the satisfaction of the City Council that it
has experienced a delay in its ability to convey the system which
delay was unintentional and beyond its control. Said conveyance by
the utility shall be without encumberance. At this time the franchise
holder shall convey unencumbered all of its facilities together
with all easements, to the City of Sebastian, without charge as to
all property contributed to the utility, provided further, however,
that the City shall have the right to purchase the remaining assets
of the utility based on the average of the net original cost and a
price as computed and agreed upon by three competent and qualified
appraisers. The City shall select an appraiser, the Utility shall
select an appraiser, and these two appraisers shall mutually agree
upon and select a third independent appraiser and these three
appraisers shall arrive at the value of the utility and the sales
price involved. However, the City shall not be required to purchase
and no value will be placed on additions or extensions to the
system which were paid for as contributions -in -aid -of -construction
by any person, firm or corporation other than the Utility. At the
end of the franchise period, the City shall not be required to pay
to the Utility any amount for goodwill and the appraised value
shall be based entirely upon physical assets only, and provided
further that in the event said Board of Appraisers cannot agree as
to the price to be paid by the City, then the City may file appro-
priate condemnation proceedings under Florida law. Prior to the
Utility conveying the system to the City, a detailed and accurate
set of record drawings showing location, sizes, and types of water
mains, fittings, fire hydrants, services, and other pertinent
information shall be furnished to the City on reproducible mylars.
Any franchise granted by the City shall include the above requirement.
" 1. -r
Section 17: In any area to be served by the utility, the
water distribution system must be designed to provide fire fighting
facilities and hydrants as necessary to meet requirements of the
National Board of Fire Underwriters, Class 8, except that no lot in
a single family residential area shall be R<f more than 500 feet
from the nearest hydrant as measured along the public right of way.
Within 90 days following final completion of each particular section
of water distribution system as approved by the State of Florida
Department of Environmental Regulation an updated map showing all
of the fire hydrants and their rated fire flow shall be submitted
to the City and the Sebastian Volunteer Fire Department. Failure
to provide such a map at the end of the 90 day time period may
result in a fine of Fifty ($50) Dollars per day to the Utility if
so ordered by the City Council until such time as the map is
submitted.
Section 18. The failure on the part of Company to
comply in any substantial respect with any of the provisions of
this Ordinance shall be grounds for forfeiture of this grant but no
such forfeiture shall take effect if the reasonableness or propriety
thereof is protested by Company until a Court of competent jurisdiction,
with a right of appeal in either party, shall have found that
Company has failed to comply in a substantial respect with any
provisions of this Franchise and the Company shall have six months
after the final determination of the question to make good the
defaults before a forfeiture shall result with the right in Council
at its discretion, to grant such additional time to Company for
compliance as necessities in the case required.
Section 19: Ordinances 175 and 203 are hereby specifically
repealed in their entirety. Any and all ordinances granting
GENERAL DEVELOPMENT UTILITIES, INC. or GENERAL DEVELOPMENT CORPORATION
a water franchise are hereby repealed in their entirety.
Section 20:
Severability Clause: It is declared hereby
to be the intent of the Council that, if any section, subsection,
sentence, clause or provision of this Ordinance is held invalid,
the remainder of the Ordinance shall not be affected.
-10-
Section 21:
Effective Date. The provisions of this
Ordinance shall become effective ten (10) days after the date of
its enactment, subject to the utility's acceptance of this Fran-
chise in writing. CITY OF SEBASTIAN, FLORIDA
Mayor
ATTEST:
City Clerk
I HEREBY CERTIFY that the foregoing Ordinance was
finally passed by the City Council of the City of Sebastian,
Florida, on the day of 1981.
-.
- --C t.y Clerk
I HEREBY CERTIFY that Notice of Public Hearing of the
foregoing Ordinance was given in accordance with Section 166.041
of the Florida Statutes, that said public hearing was held in the
City Hall of the.City of Sebastian, Florida, at ?;oo
1981, and that the foregoing Ordinance
was duly passed and adopted by the City Council of the City of
Sebastian, Florida, on the day of 1981.
City Clerk
-11-