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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-