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HomeMy WebLinkAbout1988 - CorrespondenceCity of Sebastian POST OFFICE BOX 780127 o SEBASTIAN. FLORIDA 32978 TELEPHONE (407) 589-5330 November 8, 1988 Mr. Terry Pinto Indian River County Utility Director 1840 25th Street Vero Beach, FL 32960 Re: North County Sewer Project Dear Terry: This is in response to our meeting of November 7, 1988 to discuss certain procedural matters to perfect the assessment roll for the Indian River County Sewer Project for the Sebastian area. The purpose of this letter is to outline the progress made at this meeting. Present at the meeting were Bruce Cooper and myself representing the City of Sebastian, Charles Vitunac, County Attorney and Yourself and also Earl Masteller, Project Engineer. Mr. Vitunac is to draft two (2) resolutions and have the draft resolutions submitted to Sebastian by November 21, 1988 for review by the City Attorney. One resolution would set the date of the public hearing and the second resolution would adopt the final assessment roll for the project. On December 7, 1988 at the Regular City Council Meeting you would provide a briefing to the City Council of the procedures yet to be accomplished to perfect the assessment roll. It would be helpful to the City Council if you were to submit a memorandum outlining the progress to date and provide a calendar of events for pending items. If we could have such a memorandum by December 1, 1988 we could copy the memo for the council packets for the December 7, 1988 meeting. We assume that the City Council would establish a public hearing date at the December 7, 1988 meeting. Terry Pinto Indian River County Utility Director November+8, 1988 Page #2 n The suggested date for the public hearing and consideration of the resolution adopting the final assessment roll is January 11, 1989- This would provide reasonable time for the required thirty (30) day notice. We look forward to working with you to complete the sanitary sewer project for the Sebastian area. Sincerely, Robert�Y City Manager /jmt cc: Richard B. Votapka, Mayor & Sebastian City Council Charles Vitunac, Esq. Earl Masteller, Project Engineer Bruce Cooper, Director Community Development Charles I. Nash, Esq. NASON, GILDAN, YEAGER & GERSON, P.A ATTORNEYS AT LAW WILL A. NASON, (1924-1979) HERBERT L. GILDAN THOMAS J. YEAGER GARY N. GERSON JOHN WHITE,U M. RICHARD SAPIR KENNETH A. MARRA GREGORY L. SCOTT PHILLIP C. GILDAN NATHAN E. NASON ALAN I, ARMOUR DONALD P. DUFRESNE Mr. Rob McClary City Manager City of Sebastian P.O. Box 780127 Sebastian, Florida December 2, 1988 32958-127 Re: Sebastian Lakes Utility Company Dear Mr. McClary: RECEIVEDDEC - 0 0 POST OFFICE BOX 3704 FLORIDA NATIONAL BANK TOWER 1645 PALM BEACH LAKES BOULEVARD WEST PALM BEACH, FLORIDA 33402 TELEPHONE (407) 686-3307 TELEFAX (407) 666-5442 Following up your meeting with Mr. Brooks Brierley, we have prepared a proposed Amended Franchise for the Sebastian Lakes Utility Company. In order to expediate legal review, the proposed Ordinances forwarded to you without the tariff exhibit which is still being calculated by the Utility accountants. If you or your counsel have any questions with respect to the proposed form of the Agreement, I would be pleased to answer any questions. I anticipate the finalized tariff sheet will be forwarded to you within the next two weeks. I look forward to hearing from you. PCG/lm 3456P Enclosure cc: Brooks Brierley Lisa Layne Very truly yours, N, P. A. C City of Sebastian POST OFFICE BOX 780127 ❑ SEBASTIAN, FLORIDA 32978 TELEPHONE (407) 589-5330 M E M O R A N D U M DATE: December 2, 1988 TO: Richard B. Votapka, Mayor & Sebastian City Council FROM: Charles I. Nash, City Attorney RE: Lake Dolores Utilities & Cable Television Systems, Inc. Ordinance # 0-85-12, December 2, 1988 During the past two months, I have received correspondence and documentation from Stephen L. Cook, Esq., who represents Lake Dolores Utilities & Cable Television Systems, Inc., a Florida corporation, which is the franchisee pursuant to Ordinance 0-85- 12 as set forth on pages 1970 through 1984 of Appendix B - Franchises in the Code of Ordinance of the City of Sebastian, FLorida. (A copy of this franchise agreement is attached to this memo for your reference). I've also been contacted by Fred Gallagher, Esq., who represents Nelson Hyatt. On December 2, 1988, Robert S. McClary, City Manager, Carol Carswell, Finance Director and I met with Attorney Gallagher and his client, Nelson Hyatt, to obtain their position with respect to the Lake Dolores Utility Franchise. The facts presented by Attorney Gallagher and Mr. Byatt are: 1. that a Summary Final Judgment of Foreclosure was entered on August 25, 1988, by the Honorable Paul B. Kanarek, Circuit Judge, in favor of Nelson C. Hyatt, awarding Mr. Hyatt certain real property including the utility and water system, lines, plant and all facilities relating thereto; 2. that a Certificate of Title to the real property and the utility and water system, lines, plant or facilities related thereto was issued by the Clerk of the Circuit Court for Indian River County, Florida, on October 27, 1988; 3. that Nelson C. Hyatt and his employees and agents have been providing water and sewer services to the residents of the area covered by the Lake Dolores Utility Franchise with the knowledge of Lake Dolores Utilities & Cable Television Systems, Inc.; .n. ,.. Richard B. Votapka, Mayor & Sebastian City Council RE: Lake Dolores Utilities & Cable Television Systems, Inc. Page #2 4. that although I have received notification from Attorney Cook, who represents Lake Dolores Utilities & Cable Television Systems, Inc., that his client asserts that it has not abandoned its franchise agreement with the City, his client is not in possession of the water and sewer system and is not providing the utility services to the residents of the franchise area; and 5. that in order protect the health, safety and welfare of the residents of the franchise area, water and sewer services need to be provided to those residents. Although I was not in a position to render a formal legal opinion to City Manager McClary on this date, it appeared to me that the City of Sebastian should not take action to preclude Nelson C. Hyatt from operating the water and sewer facility so long as they maintain the utility operations in accordance with the health and safety regulations promulgated pursuant to state and local laws and regulations until a determination can be made whether the franchise agreement between the City and Lake Dolores Utilities & Cable Television Systems, Inc. has terminated due to the fact that the franchisee does not own the assets necessary to provide the utility services pursuant to the franchise agreement and the franchisee is not, in fact, providing the utility services to the residents of the franchise area at the current time. I have attempted to contact Attorney Cook today in order further discuss this matter. I have been directed by the City Manager to research this matter from a legal perspective and provide advice to City Council concerning whether the franchise agreement between the City and Lake Dolores Utilities & Cable Television Systems, Inc. has been terminated based on the facts that have been presented to me by Attorney Gallagher. I will continue to make myself available to Attorney Cook in order to obtain any facts and assertions that he may have on behalf of his client, Lake Dolores Utilities & Cable Television Systems, Inc. CIN/jmt City of Sebastian POST OFFICE BOX 780127 0 SEBASTIAN, FLORIDA 32978 TELEPHONE (407) 589-5330 December 2, 1988 Mr. Nelson C. Hyatt 9605 S. U.S. #1 Sebastian, FL 32958 Re: Water and Sewer Services/Lake Dolores Franchise Dear Mr. Hyatt: This letter will serve to confirm the discussions between representatives of the City of Sebastian and you and your Attorney, Fred T. Gallagher, which occurred at my office today. In the course of our discussions, you and your attorney represented to the City that you originally owned all of the shares of stock in Lake Dolores Utilities & Cable Television Systems, Inc., which was the franchisee of the utility franchise adopted by Ordinance 0-85-12. You subsequently sold those shares of stock to R. Stephen Miles, Jr., as trustee. Your attorney has provided City Attorney Nash with a copy of the Summary Final Judgment of Foreclosure entered by the Honorable Paul B. Kanarek, Circuit Judge, on August 25, 1988, which awarded to you the real property which constitutes the service area under the franchise agreement created by Ordinance 0-85-12, and the utility and water system, lines, plant and all facilities relating thereto which are located on the aforementioned real property. In addition, the Certificate of Title transferring legal title to the aforementioned real property and the utility and water system, lines, plant and all facilities relating thereto was issued by the Clerk of the Circuit Court for Indian River County, Florida, on October 27, 1988, and recorded in the official records of Indian River County, Florida. Your attorney represented that no appeal is pending in this matter, and that it is his opinion, that the Summary Final Judgment of Foreclosure constitutes a final judgment from which no appeal will be successful. Nelson C. Hyatt Re: Water & Sewer Services/Lake Dolores Utilities December 2, 1988 Page #2 You and your attorney also represented that you are currently in Possession of the aforementioned real property, and the utility and water system, lines, plant and all facilities relating thereto, all of which are located on the aforementioned real Property. In addition, you advised me that you and your employees and agents are currently operating the water and sewer system and providing water and sewer services to the residents located in the franchise area. Your attorney expressed the opinion that the franchisee has no legal right to possess the utility and water system and operate the utility franchise, and any attempt to do so would constitute criminal trespass pursuant to the Florida Criminal Code. You and your attorney concluded that if the City of Sebastian were to prohibit you from continuing to provide the water and sewer system, no person or entity would have the legal right to operate the water and sewer utility system, and provide water and sewer services to the residents of the franchise area, thereby Jeopardizing the health, safety and welfare of the residents of the franchise area. Based on the representations of you and your attorney, the City of Sebastian does not intend to take any action to prevent you from continuing to provide water and sewer services to the residents of the franchise area at this time. I have directed the City Attorney to research whether the franchise agreement between the City and Lake Dolores Utilities & Cable Television Sapply to from the City to rovide water ystems, Inc. has terminated, thereby necessitating that you sewer sere ces1 toatheanchise residents of the current franchise area,and The City does not offer any opinion as to whether Lake Dolores Utilities & Cable Television Systems, Inc., or its assigns and successors, would have a civil action against you for your anration of the sewer servicesatorthedresidentsloft henfranchiseoarea, ora ddue to your collection of utility fees from the residents of the franchise area. Note that the City will take steps to collect its franchise fees from any person or entity who collects franchise taxes from the residents of the franchise area. The City Attorney has indicated that he will provide the Mayor and City Council with his legal opinion at the Regular Council Meeting scheduled for December 7, 1988, at 7:00 P.M. at Sebastian City Hall. 2 Nelson C. Hyatt RE: Water and Sewer Services/Lake Dolores Franchise December 2, 1988 Page #3 If the facts of the facts upon which this letter is conditioned are not, in the opinion of you or your attorney, accurate, please contact me immediately. Sincerely, Robert S. MCClary City Manger cc: Richard B. Votapka, Mayor & Sebastian City Council Charles I. Nash, City Attorney Fred T. Gallagher, Esq. 3 City of Sebastian POST OFFICE BOX 780127 o SEBASTIAN, FLORIDA 32978 TELEPHONE (407) 589-5330 December 8, 1988 Mr. Phillip C. Gildan NaSOn, Gildan, Yeager, & Gerson, P.A. Attorneys At Law P.O. 3704 West Palm Beach, FL 33402 Re: Sebastian Ickes Utility Company Dear Mr. Gildan: This is in response to your letter of December 2, 1988, transmitting a proposed ordinance which would repeal and reenact a franchise ordinance for the Sebastian Lakes Utility Company. In a brief review of the proposed ordinance we find major modifications. We see that Section 110, Systems Cost Data, Section 112, Right to Purchase, Section 124, Monitoring Performance and Section 132, Acquisition by City the franchise. Additionally, are no longer in we see new language adding an irrigation utility to the water and sewer services already provided. On Page 3, we note that the limits of the franchise has been modified and, very significantly, that the franchise consideration formula has been changed from basing the franchise tax on net revenues rather than gross revenues. Additionally, we note that Section 107relating to the sale or lease of the franchise has been modified and that on Page 5 a new section has been added which would permit rate increases without approval by the City Council under certain circumstances. We also note that language has been added to Section 123, regarding fire hydrants and passing this expense on to the customer. We had no idea that Sebastian Lakes Utility Company was interested in rewriting the franchise agreement with such major modifications. In a meeting with representatives of Sebastian Lakes Utility Company, I had indicated I would be willing to look at a modification to the franchise relating to the appointment of consulting engineers to evaluate rate increases. To my knowledge, I gave no indication that the City of Sebastian would be interested or willing to entertain such massive amendments to the franchise. Mr. Phillip C. Gildan Re: Sebastian Ickes Utility Company December 8, 1988 Page #2 in fact, City AtAt it would be M, opinion that rney would the necessary review b tocost well in excess of the $876.44 that City of Sebastian Y our Sebastian has received over the entire the Sebastian Lakes Franchise. Therefore term it the review or evaluation ' before we proceed with an modifications, I would like tion of your request intent to rel an indication from your client of its administrative expenses the City of Sebastian its In the mean in reviewing and modifying legal and exhibit tim' we shall look forward to Y v the franchise. which is being prepared b receiving the tariff representing Sebastian Lakes Utilit Y your utility Y Company. Y accountants I look forward to hearing from you in the near future. Sincerely, 117 cb&e McCla'1 /jmt City Manager ry cc: Richard B. Votapka, Mayor & Sebastian City Council Carol Carswell, Finance Director Charles I. Nash, City Attorney City of Sebastian POST OFFICE BOX 780127 0 SEBASTIAN, FLORIDA 32978 TELEPHONE (407) 589-5330 December 12, 1988 Nash & Fallace, P.A. Attorneys at Law 930 S. Harbor City Blvd. Riverside Center - Suite 505 Melbourne, FL 32901 Attn: Attorney Charles I. Nash Dear Attorney Nash: The City Council, at their Regular Meeting of December 7, 1988, passed the following motion: MOTION by McCarthy/Metcalf I move we authorize the City Attorney to proceed with a court action called "quo warranto" to have the Circuit Court determine whether the franchise has in fact been terminated by the inability of the franchisee to have legal possession of the real estate and provide sewer and water services that they have agreed to under the franchise. ROLL CALL ON THE MOTION CARRIED 5-0. S' erely, ��••�� Sally Maio Deputy City Clerk sam cc: file SebastianLakes IliiI int Road 512. ti(, h; iinu. FL'32958,305)589-1200/1-800-6211596 Rob McClary, City Manager City of Sebastian P.O. Box 780127 Sebastian, FL 32958-127 Dear Rob: RcCEIVEDD'7C 2 9 1983 December 22, 1988 I have received your letter regarding our attorney's proposed revisions to the Sebastian Lakes Utility Company. In view of your comments, I would prefer to withdraw those revisions, but noting that our rate increase revises certain items in the existing franchise. Very truly yours Brooks T. Brierley, Vice ILsident St. Paul Corporation, Managing Partner brooks/b/bc mcclary