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HomeMy WebLinkAboutO-85-12 AN ORDINANCE OF THE CITY CO[~CIL OF THE CITY OF SEBASTIAN, FLORIDA, GRANTING AN EXCLUSIVE FRANCHISE TO LAKE DOLORES UTILITIES and CABLE TELEVISION SYSTEMS, INC., A FLORIDA CORPORATION, TO OPERATE AND ~INTAIN A WATER DISTRIBUTION SYSTEM AND SEWAGE COLLECTION SYSTEM WiTHiN A PORTION OF THE CITY OF SEBASTIAN, FLORIDA; SETTING FORTH CONDITIONS AND PRIVILEGES ACCOMPANYING T~{E GRANT OF FRANCHISE~ PROVIDING FOR RATES AND CHARGES, AND FOR SERVICE STANDARDS. WHEREAS, The City of Sebastian finds it in the public interest to ensure that THE VILLAGE OF LAKE DOLOROUS adequately provided with high-quality water and sewer (wastewater) services: WH~5~EA£, The City of Sebastian finds it in the public interest to retain regulatory au%hority over the water and sewer utilities, to the extent allowed by law, because of the overriding public health, safety and welfare considerations associated with the provision of this service. WHEREAS, The ~City of Sebastian finds it in the public interest to retain control over the use of public rights of way by water and sewer utilities to ensure against interference with the public convenience, to promote aesthetic considerations, to promote planned and efficient use of limited right of way space, and to protect the public investment in right of way property; WHEREAS, The City of Sebastian finds it in the public interest to ensure that high quality water and sewer service is maintained through a responsive complaint procedure; WHEREAS, Grantor is desirous of having made available to its citizens, in return for valuable consideration, certain water and sewerage facilities of sufficient size and capacity to serve its citizens at reasonable rates, and constructed in such a manner so that at such time as the Grantor may desire to purchase said facilities, that prospective purchasers of revenue bonds of the Grantor to be used in acquiring the funds to make such purchase can be assured that the facilities are adequate and satisfactory and will produce revenues capable of retiring said revenue bonds; WHEREAS, Grantee has indicated to Grantor that it is willing to undertake the. installation and operation of such facilities under a franchise from Grantor; and WHEREAS, the provision of such water and sewerage facilities is in the best interest of the health, welfare and safety of Grantor's citizens. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF SEBASTIAN, FLORIDA as follows: SECTION 101. Definitions. A. "Grantee" shall mean the Lake Dolores Utilities and Cable Television Systems, Inc., its successors and assigns. B. "Grantor" shall mean the City of Sebastian, its successors and assigns. C. This Ordinance shall be known as the VILLAGE OF LAKE DOLORES WATER and WASTEWATER SYSTEM FRANCHISE. ! SECTION 102. Grant of Authority. Grantor ~hereby grants to Grantee the right to construct, maintain lift stations, force mains, manholes, sewerage treatment plant and other appurtenances, upon, along, under and over the roads, easements, ways and streets within the limits of this franchise, as its business may from time to time require in accordance with established practice with respect to water and sewerage construction and maintenance for the purpose of providing adequate sewerage collection and treatment services to Grantor and its successors and to the inhabitants within the limits of the'franchise. SECTION 103. Limits of' the Franchise. Ail persons, firms or corporations within and limited to the areas described and designated in Exhibit "A" to this Ordinance are hereby granted the privilege and right to received from the Grantee water and sewerage services and all services incidental or necessary with respect thereto, and the Grantee shall not refuse to provide' such sewerage services to any person, firm or corporation whomsoever for any reason whatsoever. SECTION 104. Duration of Franchise. The term of this franchise shall commence with the effective date of this ordinance and shall continue and remain in full force and effect for the period of 20 years; provided however, that should the Grantee fail to complete and put into operation the water distribution and sewerage collection and disposal system within the phase 1 area afore-mentioned (first 172, ~nits) on or before one (1) year from the effective date hereof, or should be Grantee thereafter surrender or abandon the operation and maintenance thereof, or fail to complete and put in operation the whole system within Ten (10) years from the effective date, or fail to comply with any of the provisions hereof, then in either of said events this franchise shall be forfeited, and the Grantor shall be entitled to purchase by voluntary agreement, or take by condemnation or by power of eminent domain, in accordance with the then existing law, all property used and useful in the exercise of this franchise, situated within the limits of this franchise. SECTION 105. Grantor Supervision. The foresaid construction, maintenance and operation of said sewerage facilities, both as to those portions of the same located within the limits of the franchise, shall be subject to the approval of Grantor and the plans and specifications for all of such construction shall first be approved by the same before construction is commenced. Grantor or its employees, officers or agents~' shall have the right to inspect the above-mentioned sewerage facilities at any reasonable time. SECTION 106. Franchise Consideration. Within thirty (30) days after the first anniversary date of this grant and within thirty (30) days after each succeeding anniversary date of this grant, the Grantee, its successors and assigns shall pay to Grantor or its successors an amount which added to the amount of all taxes, licenses, building permits and other impositions levied or imposed by the Grantor upon the Grantee's water and sewerage property, business or operations for the preceding tax .year, will equal 3 percent (3%) of the Grantee's revenues from the sale of water and sewage collection and treatment services to residential and commercial customers within the limits of this franchise for the twelve (12) months preceding the applicable anniversary date. SECTION 107. Assignment. It is mu{~ally agreed that the, subject to the approval of Grantor, the Grantee has the right to mortgage, lease, convey, transfer or assign all of the property which it owns, including any and all equipment, pipes or appurtenances utilized in connection with the sewerage collection system and sewerage treatment plant, subject to the following conditions~ That thirty (30) days written notice of Grantee's intention to do so shall be communicated to Grantor, together with the original signed document evidencing said conveyance, lease, mortgage, assignment or transfer which ~hall indicate the name of the person or persons or legal entity to whom said land has been sold, mortgaged, leased, assigned or transferred; and in addition thereto, said deed, lease, mortgage, trust deed, assignment or other instrument, shall contain language which shall indicate to the lessee, mortgagee, assignee or transferee that said conveyance, lease, mortgage, assignment or transfer is subject to the terms of this franchise and all of the obligations and duties contained herein; and that Said lessee, mortgagee, assignee or transferee shall, by accepting a conveyance, lease, mortgage, assignment or transfer of the sa;ne, agree to assume the obligations of this franch'ise as part of the consideration therefor. SECTION 108. "As Bdilt" Drawings..~. Upon the completion of all construction of the water and wastewater treatment plants and distribution and collection systems, the project engineer for the Utility 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 City. The certification shall include submission to the City of two sets of "as built" (as defined by the City) drawings, consisting of one set in reproducible vellums and one set of regular blueline prints; ~nd that the systems meet all of the standards required by the City, including pressure and leakage tests, chlorihation and bacteriological tests, infiltration and exfiltration tests. SECTION 109. Rate Adjustment. It is recognized by the parties that the rate charged by Grantee for the disposal of Grantor's sewage and the providing of water under this agreement represents recovery of variable costs and fixed costs, as well as amortization of return on Grantee's investment in the respective systems. Over the term of this agreement, it is recognized that variable costs may fluctuate. With the possibility of this fluctuation in mind, the parties agree that at the end of any three (3) year term hereof, either party may, upon the advice of its consulting engineer, request a rate revision for the next ensuing three (3 ) year term, to reflect changes in variable costs. Such variable costs shall include energy, water, chem/cals and labor used in the normal operation of the systems. The consulting engineers of each of the~ parties shall meet and determine whether a rate adjustment is justified after reviewing all such costs. In the' event the engineers cannot agree on a rate adjustment, they shall, by agreement, appoint a disinterested engineer who shall review the cost figures and shall determine whether a rate adjustment is justified, and if so in what amount. Such determination shall be binding upon the parties. However, in no event shall a rate adjustment for any three (3) year term exceed twenty percent (20%) of existing rates. Rate increases are subject to the approval of the City Council after public hearing thereon. SECTION 110. System~.. Cost Data. As construction of said facilities progresses and when the construction is completed, Grantee shall furnish the Grantor annually within thirty (30) days after the anniversary date of this grant, proof of the costs and expenses of such construction. If Grantor seeks to purchase the facilities as is hereinafter set forth, said cost or expense of figures or cost or expense items shall not he'conclusive as to a reasonable purchase price but shall be evidence thereof. SECTION 111. Financial Re~rts. The Grantee shall submit to the Grantor annual financial statements showing its financial condition and its operations for the preceding year, including customer accounts, operational expenses, gross and net income. Grantor may use these data to determine the earning capacity of the facilities, the reasonableness of its rates, and the advisability of Grantor purchasing the facilities, and for other lawful, purposes. SECTION 112. RIGHT TO PURCHASE. Grantor shall have a right to purchase the facilities of Grantee at any time during the life of this franchise. SECTION 113. Restoration. The Grantee shall restore all streets, alleys, sidewalks, highways, easements, bridges, and other public places to their original coqdition after eacaYation or other disturbance by Grantee. In case any obstruction caused by Grantee shall remain longer than three (3) days after notice to remove same, or in case of neglect of the Grantee to protect dangerous places by proper, guards, the 'Grantor may remove the obstruction or alleviate the danger and charge the Grantee for cost incurred thereby. SECTION 114. Subordination Provision. The construction, maintenance and operation of the said facilities shall be subject to all of the ordinances of the Grantor relating to construction and zoning. SECTION 115. ~ The Grantor shall in no way be liable or responsible for any accident or damage that may occur in the construction, operation or maintenance by the Grantee of the systems hereunder, and the acceptance of this Ordinance shall be ~eemed an agreement on the part of the Grantee to indemnify the Grantor and hold it harmless against any and all liability, loss, cost, damage or expense, which may accrue to the Grantor by reason of the neglect, default misconduct or strict liability of the Grantee in the operation, or maintenance of its facilities construction, hereunder. SECTION 116. Severability. If any part Of competent jurisdiction shall-determine that any provision hereof is invalid, illegal, unenforceable, or otherwise prohibited, or if ~ny federal or state governmental agency shall establish or interpret any law, rule or regulation by which any provision hereof become %nvalid, illegal, unenforceable or otherwise prohibited, such portion shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining portions hereof; except that the Grantor may declare this franchise terminated if it finds the invalidated provision to be an essential part of this franchise. SECTION ~117. Service Standards. Grantee will maintain and operate all of said facilitles in good working-order in accordance with established engineering practices and recommendations at all times, and will, at its cost, -make such additions and improvements to its plants and facilities as are .necessary ~to provide adequate service to all of the area covered by .this franchise. The provision, is subject to all other provisions of ~this franchise pertaining to the construction of facilities. SECTION 118. Construction Schedule. Grantee shall proceed expeditiously to construct such part of the plant and systems as shall be necessary to serve water and wastewater demands in the area covered by this franchise as needed, and to maintain said plants and other facilities in a sufficient capacity to handle the requirements of the then utility service demands in the area covered by this franchise. All of the facilities to be owned and operated by Grantee shall be plann'ed and designed by professional engineers of the State of Florida. The contract or contracts for the construction of all facilities shall be awarded by Grantee to reputable contractor or contractors. The Grantee shall have the right to examine and concur in the design of all facilities, but concurrence shall not be arbitrarily or unreasonably withheld. Failure by Grantor to advise the Grantee in writing of Tits non-concurrence in the design of any facilities and to assign in writing Grantor's specific reason or reasons for such non-concurrence within ten (10) days after Grantee has submitted to Grantor such design shall be deemed a concurrence by Grantor in such design. SECTION 119. Capacity to Serve. Grantee will, at its own expense, provide the necessary capacity to service the area. SECTION 120. Rates. The rate~ and charges for use of said facilities by the Grantor, and its successors, and the inhabitants, property owners and corporations within the limits of this franchise, shall at all times be reasonable and subject to such regulations as may be provided by law. The initial water and wastewater rates shall be as set forth in Exhibit "B" hereto. SECTION 121. Public Nuisance Prohibited. Said systems shall not be constructed, maintained and operated so as to cause pollution of any kind to the waterways, wetlands or ground water aquifers within the limits of the franchise area and said facilities shall not emit dust, dirt, smoke, noise, odor, fumes, or vibrations in quantities and constitute a public or private nuisance or substances which possess an abnormal explosion hazard. Grantee shall landscape the plants to be erected by it so as to screen ~he facility from view in an attractive manner and shall maintain the same in an attractive manner at all times. SECTION 122. Rule Making. The Grantee may issue from time to time necessary rules and regulations relating to the maintenance and operation of its facilities and relating to the time, manner and place of collection of its authorized charges and rates, and the Grantor will further assist therein by enacting such ordinances as shall reasonably the necessary and in %he public interest in order to aid the assist the Grantee in collecting its authorized charges and rates and prevent tampering with, injuring or destroying the Grantee's property or interference in any way with the'operation of the Grantee. SECTION 123. Complaints. Ai__i complaints shall be resolved by Grantee within twenty-four (24) hours. Grantee shall, upon request by Grantor, supp%y Grant6r with copies of all complaints and indicate the dispostion of each. Such records shall be available for inspe6tion by Grantor at all times during business hours specified herein. The form shall indicate the day and hour on which the complaint was receiYed and the day and hour on which it was resolved. When a complaint is received on the day preceding a holiday or on a Saturday, it shall be serviced on the next working day. The Grantee shall establish procedures to insure that all customers are notified as to the complaint procedure. SECTION 124. Monitoring Performance.ana....Cg~p~iance. In order to fully implement the provisions of this franchise, a panel for the review of the quality of services provided for in this contract shall be created to consist of three (3) members, one [1) member representing the Grantor, one (1) member representing th~ Grantee, and third independent member chosen by the previously named two members. It shall be the function of '~ this committee to review, report and Rake recommendations to the Grantor regarding the quality of services provided for herein. For the purpose of this function, "Service~ shall be defined as the performance of the duties, tasks and obligations of the Grantee' enumerated herein and the performance of such other duties, tasks and obligations as are generally and reasonably regarded as incident to the safe and satisfactory discharge of responsibilities in the water and sewer industry. SECTION 125. Termination of Service. Grantee shall have the right to discontinue service to any consumer who is found to have violated any valid rule and regulation prescribed by Grantee under this franchise and approved by the Grantor or who shall fail to pay, within sixty (60) days after the same comes due, any charges legally made by the Grantee for services supplied. Grantee shall not be obligated to renew service after such discontinuance, unless and until the customer sha~l have reimbursed Grantee for its expense incurred in the discontinuance and renewal of service. A consumer whose service has been discontinued at one residence, or place of business, will not have the right to require service to be renewed at another residence or place of business until all demands of the Grantee for legitimate charges and expenses against said consumer shall have been met. SECTION 126. Fire Hydrants, In consideration of the rights granted, and privileges herein Grantee shall install fire hydrants along the water mains located within the geographical limits of this franchise at locations as will meet the standards specified by City ordinances. SECTION 127. Taxes. If during the life of this franchise, or any extension thereof, Grantor shall elect to levy a tax upon the charge made by Grantee to its customers for the sale of water or sewerage wastewater Grantee shall collect the amount of such tax from its customers for use and benefit of Grantor at the time of collecting th~' price charged for the sale of water. Ail such taxed levied and collected during the preceding month shall be reported and paid over on or before the fifteenth (15th) day of each calendar month to Grantor less any administrative costs, agreed to by Grantor from time to time, incurred by Grantee in the collection of such tax. SECTION 128. P~newal & Replacement Account. Two and on half percent (2 1/2%) of the gross receipts of the Utility 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 Utility. Additionally, the Utility shall initially fund said account with two thousand dollars ($2,000) which 'will also be reserved for capital maintenance items. Interest shall accumulate in said account until the account reaches twenty five thousand dollars ($25,000.00'); thereafter interest shall be paid to the Utility 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 Utility as the need arises; the percentage required to be placed in the renewal and replacement account may be amended after review by the City as necessary to maintain a .sufficient account balance taking into account the general condition of the system. The City is granted the right to make necessary repairs using said funds in the event of default on the part of the Utility in maintaining proper quality standards. SECTION 129.- Contractual Agreement. It is Specifically agreed by and between the parties hereto that this franchise shall be considered a franchise agreement between the Utility and the City and as such 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. SECTION 1'~0. Default of Franchise. If the Utility fails or refuses to promptly faithfully keep, perform and abide by each and all of the terms and conditions of this franchise, then Council shall give the Utility written notice of such deficiencies or defaults and reasonable time within which the Utility shall remedy the same, which notice shall specify the deficiency or default. If the Utility fails to remedy such deficiency or default within a reasonable time, the Council may thereafter schedule a hearing concerning the same with reasonable notice thereof to the Utility., and after such hearing at which all interested parties shall be heard, the Council may levy liquidated ~damages of up to fifty dollars ($50) per day that said deficiency or default exists from the date of said hearing held by the Council and the Council may further limit or restrict this franchise or franchise territory or may terminate and cancel the same in whole or in part if proper reason thereby are found by the Council. If the Council enters an order pursuant to such hearing and the Utility feels aggrieved by any such oYder, the Utility may seek review of the Council's action by filing a petition for Writ of Certiorari in the Circuit Court cf the County. SECTION 131. 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. Within a reasonable tame 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. Said conveyance by the utility shall be without encumbrance. At this time the franchise holder shall convey unencumbered all of its facilities together with all easements, to the city, without charge as to all property contributed to the utility, provided further, however, that the city shall have the right to purchase the remaining'~ssets of the utiltity based on the average of the net original cost and a price as computed and agreed upon by three (3) competent and qualified appraisers. The city shall select an appraiser, the utiltity 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 utitlity 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 utiltity. At the end of the franchise period, the city shall not be required to pay to the utiltity 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 appropriate condemnation ~ proceedings under Florida law. Any franchise granted by the city shall include the above requirement. IN WITNESS WHEREOF, The City of Sebastian, Florida has caused this franchise to be executed in the name of the City of Sebastian by the Mayor to be affixed and attested by its Clerk, all pursuant to the resolution of the of the City of Sebastian adopted on the /~f~' day of ~U~U $-~ , 198~. Signed, sealed and delivered in the presence of: CITY OF SEBASTI3~N Deborah Krages City Clerk ACCEPTANCE OF FRANCHISE LAKE DOLORES UTILITIES AND CABLE SYSTEMS, INC., a Florida Corporation, 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 Sebastian, Indian River County, Florida, this WITNESS; LAKE ~ORES UTILITIES and CAB ~r e~s i d~e_n ~ STATE OF FLORIDA COUNTY OF INDIAN RIVER I HE.BY CERTIFY that on this day, before me, an officer duly authorized in the State and County aforesaid to take acknowledgements, personally appeared as President of LAKE DOLORE~ UTILITIES AND CABLE SYSTEMS, INC., a Florida Corporation, and he acknowledged before me that he executed the cforegoing instrument for the uses and purposes therein expressed. WITNESS my hand and official seal in the State and County Notary Public, State of Florida My Commission Expires: NOTARY PUBLIC SLATE OF FLORIDA MY CO)4MiSSION EXP DEC 10,1988 )}{JND~O IRRU GENERAL IN.%. UNO. ~Villages of Lake Dolores Franchise LEGAL DESCRIPTION Parcel I - The South 3/4 of the Southwest 1/4 of the Southeast 1/4. Section 20, ?ownihip 31 South, Range 39 East. Parcel 2 - That part of the Southeast 3/4 of the Southeast 1/4, Section 20, Township 31 South, Range 3g East, lying Nest of the Flozida East Coast Railway ~ight-of-~a¥, Parcel 3 - The West 1/4 of the Southeast 1/4 of the Northwest 1/4 and the l~ortheast 1/4 of the Southeast 1/4 of the No[thwest 1/4 of Section 29, Township ~1 $ou~h, Range 39 East, except the followin9 2 parcels'of land: 1. Beginning at a poin~ 25 feet east of the NW Co~ner of the SE 1/4 of the NW 1/4 of Sec 29-31-~9, ~un east 147 feet~ thence South 150 feet, thence west 147 feet, thence north 150 feet to poin~ of beginning; and 2. Beginning at a point 25 feet east of the SW cornel of SE 1/4 of NW 1/4 of Sec 29-31-39, run no~th 50 feet, thence east 100 feet, thence south 50 feet, thence west 100 feet to the point of beginning; less road right-of-way. Parcel 4 - The West 1/2 of the Northeast 1/4, Section 29, Township 31 South, Range 39 East. Said property lying and being in Indian River County, Flor/da. EXHIBIT "A" Tabl PROPOSED Villages qf Lake Dolores Franchise water Flat Rate (inc. 3000 gallons) Wastewater Flat Rate } 15.OD p~ month . ?5/lODO gallons IS.OD per m, onth Average Bill Wastcwater 15.00 15.00 Wastewater 30.00 ~er month 15.00 15.00 30.00 p~r month I~£,OPOS £ 1~ I i';£A C~ SPECIAL SER¥1CES 2. 3. 4. J:iPAC~ FEE - SE~:ER $200. :IEIEK ~,EADING ( When calibration DEPOSIT- EXHIBIT "B"