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HomeMy WebLinkAboutO-85-16O~DIN~CE NO. AN ORDINANCE OF TIlE CITY COUNCIL OF THE CITY OF SEBASTIAN, FLORIDA, GRANTING AN EXCLUSIVE FRANCHISE TO SEBASTIAN LAKES UTILITY COMPANY, A FLORIDA CORPORATION, TO OPERATE AND MAIN- TAIN A WATER DISTRIBUTION SYSTEM AND SEWAGE COLLECTION SYSTEM WITHIN A PORTION OF TIlE CITY OF SEBASTIAN, FLORIDA; SETTING FORTH CONDITIONS AND PRIVILEGES ACCOMPANYING THE GRANT OF FRANCHISE; PROViDI'NG FOR RATES AND CHARGES, AND FOR SERVICE STANDARDS. WHERE)L~, The City of Sebastian rinds it in the publ ic interest to ellsure that Sebastian Lakes Ut.ilitg Company a. dequatelg prov.ide h igh-qual itg water and sewer )wastewater ) s~rvices; WllERE)L~, The City of Sebastian finds it in the public inter~-st to retain regulatory authority over the water and sewer u£ilities, to the ext~nt allowed by law, because of the over-riding public health, safety and welfare considerations associated with the provision of this service; WtlERE~-g, The City of Sebastian finds it in th~ public interest to retain con- trol over the use of public rights of way by water and sewer utilities to ensure against .interference with the pub;lc convenience, to promote aesthetic considered-ions, to promote planned and effici~-nt use of )imited right of wag space, and to protect ~h~- public investment in right of way property; WHEREAS, The City of Sebastia~ f.~nds it in the public interest to ensure that high quality water and sewer service is maintained through a responsive complain= procedure; WHEREAS, Grantor is desirous of having made available to its citizens, in return for va;uable consideration certain water and sewerage facilities of sufficient size and capacity ~o serve its citizen,s 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 Js willing to undertake the installation and operation of such facil.~ties under a franchise from Grantor; and WHEREAS, the provision of such water and sewerag~ facilities is in the best interest of the health, welfare and safety of Crantor's citizens; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF SEBASTIAN, FLORIDA, as.. fo I 1 ows: SECTION lO~. Definitions. A. "Grantee" shall mean the Sebastian Lakes 'Utility Company, its suc- cessors and assigns. B. "Grantor" shall mean th~ City of Sebastian, its successors and assigns. C. This Ordinance shall be known as the 'SEBASTIAN LAKES UTILITY COMPANY WATER and WA~TEWATER SYSTEM FRANCHISE. SECTION 102. Grar~t of Authority. Grantor hereby grants to Grantee the right to construct, maintain lift stations, force m~ins, manholes, sewerage treatment plant and other appurtenances, upon, along, under and over the roads, easements, ways and streets wi[bin the limits of this fran- chise, 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 ~ewer~9~ co]]ection and treatment serv.~ce$ to Granto~ and its successors a~d to the ~nhab.~tants within the limits of the french.isa. SECTION 103. Limits of the Franch.ise. A.11 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 receive from the Grantee water and sewerage serv.ices 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 ]04. Duration of Franchise. The term of this franch.ise shall commence with the effective date of this Ordinance and shall continue and remain in full force and effect $'or the per.led of 20 years; provided however, should the Grantee surrender or abandon the operation and maintenance thereof, or fail to complete and put in operation the system as demand requires, 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 ag. reement, or take by condemnation or by power of eminent dome.in, in accordance with Section 132 hereof, all property used and useful in the exercise of this franchise, situated within the limits of this franchise. SECTION 105. Grantor Supervision. ~?~e 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 commenGed. Grantor or its employees, officers or agents shall have the right to inspect the above-mentioned sewerage facilities at any reasonable time. SECTION ]06. Franch.ls~ Consideration. Within thirty (30) days after the first anniversary date of this grant and within thirty (30) days after each succeeding ann.tversarw 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 ~imits of this franchise for the twelve (12) months preceding the applicable anniversary date.. SECTION 107. ~nment. It is mutually agreed that the Gra.ntee, subject to the approval of Grantor, 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 sew~.rage collection system and sewerage treatment plant, subject to the fo]lowing 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, ;.ease, mortgage, assignment or transfer which shall 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 additionthereto, said deed, lease, mortgage, trust deed, assignment or other instrument, shall contain language which shall indi- cate to the lessee, mortgagee, assignee or transferee that said conveyance, lease, mortgage, assignment or t,'ansfer is subject to the terms of this franchise and all of the obligations and duties conta,ined herein; and that said lessee, mortgagee, assignee or t-ransferee shall, b~ accepting a conveyance, ;ease, mor~yage, assignment or transfer of the same, agree to assume the obligations of this fr,~nchise as part - 2 - of the consideration therefor. SECTfON 108. "AS Bui]t" 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 sub- mission to the City of two sets of "as built" {as defined by the City) drawings, con- sisting of one set in reproducible vellums and one set of regular blueline prints; and that the systems meet' all of the standards requ.ired by the City, including pressure and leakage tests, chlorination and bacterlo]ogical tests, infiltration and exfi;- tration tests. SECTION 109. Rate Adjustmen.~. it Is recognized b~ the parties that the rate charged by Grantee for the disposa~ of Grantor's sewage and the providing of water under this agreement represents covery 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 recog- nized that variable costs may fluctuate. With the possibility of ~his fluctuation in mind, the parties agree that aa the end of any three (3) ~ear term hereof, either party may, upon the ~dvice of it~ con- sulting engineer, request a rate revision for the next ensuing three (3) year term, to reflect changes in variable costs. Such variable costs shall include energg, water, chemicals and labor used in the normal operation of the systems. The consult- lng engineers of each of the parties shall meet and determine whether a rate adjust- ment is justified after reviewing all such costs. In the event the engineers cannot agree on a rate adjustment, they shall, b~ agreement, appoint a disinterested engineez' who shall ,'eview 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 sha;l 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. S~stems Cost Data. As construction of said facilities progresses and when the construction is completed, Grantee sha~l 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 be conclusive as to a reasonable purchase price but sha]l be evidence thereof. SECTION 111. Financial Reports. 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 th~ facilities, the reasonableness of its rates, and the advisability of Grantor purchasing the facilities, and for other lawful p u rpos es. SECTION Il2. Right to Purchase. Grantor shall have a right to purcl]ase the faci]it.ies of Cra~tee at anw time - 3 - SECTION 113. Restoration. The Grantee shall restore all streets, alleys, sidewalks, highways, easements, bridges, and other public places to the.ir original cond.~t.ion after excavation or other disturbance bg Grantee. In case any obstruction caused by Grantee shall remain longer than three (.]) 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 11 ~. Indemnity. The Grantor shall .~n no way be liable or responsible for any accident or damage that may occur in the construction, operat.ion or maintenance by the Grantee of the systems hereunder, and the acceptance of this Ord.inance shall be deemed an agreement on the part of the Grantee to indemni~y 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 construct.ion, operation, or maintenance of its facilities hereunder. SECTION 116. Severab.il itq. If any part of competent jurisd.~ction sha;; determine that an~ provision, hereof is invalid, illegal, unenforceable, or otherwise proh.ibited, or if any federal or state governmental agency shall estah;lsh or interpret any law, rule or regulation by which any provision hereof become inval.id, ii.~egal, unenforceable or otherwise prohibited, such portion shal.! be deemed a separate, distinct and independent pro- vision and such holding shall not affect the va~id.lty of the remaining portions hereof; except that the Grantor may declare th.is franch.ise terminated if it f.inds the invalidated provision to be an essential part of this franchise. SECTION 117. Service Standards. Grantee will maintain and operate all of said fac.ilit.ies .in good work.lng order in accordance with establ.lshed eng.ineering pract.ices and recommender.ions at and will, at its cost, make such additions and improvements to its plants and facili- ties as are necessary to provide adequate service to all of the area covered by this franchise. The provision is subject to a~l other provisions of this franchise per- raining to the construction of facil.ities. 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 b~ this franchise as needed, and to maintain said plants and other faci.li- ties in a suff.icient 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 planned and designed by profess.lone.1 engineers of the State of Flor.ida. The contract or contracts for the construct.ion of all facil_tties shall be awarded by Grantee to reputable con- tractor or contractors. The Grantee shall have the right to examine and concur in the des.ign of all facilities, but concurrence shall not be arbitrarily or unreasonabJg withheld. Fa.ilure by Grantor to advise the Grantee in writing of .its non-concurrence in the design 0£ any facilities and to assign in writing Grantoz"s specif.ic reason O.r rea$on~ for ~uch non-~oncurreuce wi~hl~ ten ( ~01 d~$ a[te~ Grar~tee has submitted to Grantor such design she;1 be deemed a concurrence b~ Grantor in such design. - 4 - SECTION 1 19. C~it_$. to Serve. Grantee will, at its own expense, provide the necessary capacity ~o servic~ ~he area. SECTION ~20. Rates, T~e ra~es and charges for use of said facilities b9 the Grantor, and Its successors, and the inhabitants, propert~ owners and corporations within the limits of this franchise, sha;l at all tim~s be reasonable and subject to such regulations as mag b~ provided b~ ;aw. The init.~al w~t~r and wastmwat~r rates sbu;] b~ as set forth in Exhibit "B" h~reto. SECTION 121, Public Nuisanc~ Prohibitmd. Said systems shall not be constructed, maintained and operated so as to cause pollution of anH kind to the waterways, wet)ands 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 of substances which possess an abnorma; explosion hazard. Grantee shall landscape the plants to be ~r~ct~d bg it so as to screen the facility from view in an attractive manner and shal~ maintain the same in an a~tract- ire manner at al] times. SECTION 122. Rul~ Making. The Grantee mag issue from time to tlm~ nec~ssur~ rules and regulations re]at- ing to the maintenance and operation of its facilitie~ and relating to ~he tlme, manner and place of collection of its authorized charges and rates, and the Grantor will further assist therein by enacting such ordinances as sha~; reasonably be neces- sarw and in the public interest in order to aid and assist th~ Orant~ in co]letting its authorized charges and rates and prevent tampering with, injuring or destroying the Grantee's property or interference in any wa~ with the operation of th~ Grantee. SECTrON 123. Comp;a.~{.ts. A~.complaints shall be resolved by Grantee within ~wentg-four (24) hours. Grantee shall, upon reques~ by Grantor, supplg Grantor With copies of a~l complaints and indicate the disposition of each. Such records shall be available to .inspection bg Grantor at ail times during bus~nes$ hours specified herein. The form sha~] indi- cate the dug and hour on which the complaint was received and the day and hour on which it was resolved. When a compla.~nt is received on ~he day preceding a ho~id~ or on a Saturday, it sba;1 be serviced on the next working day. The Grantee sha}l establish procedures to insure that all custom, rs are notified as to the complaint procedure. SECTION 124. MO~.itoring Performanc~ and Comp~.i~pc~. In order to fully implement the provisions of this franchise, a panel for the review of the qualitg of services provided for in this contract shall be created to consist of three {3) members, one (1) member represent.ing the Grantor, one {1) msmber representing the Grantee, and third independent member chosen by the previouslg named two members. It shall b~ the function of this committee to review, rsport and m~ke r~commendations to th~ Grantor regarding the quality of services provided for here~n. For the purpose of ~his function, "Service" shall be defined as the p~rformance of the duties, tasks and obligations of the Grantee enumerated herein and the Performance of such .other duties, tasks and obligations ~s are g~nerallg and reasonab;g regarded as incident to the safe and satisfactory discharge of responsibi]ities in the water and sewer industry. - 5 - SECTION 325. Termination of Se. rvic~-. 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 bg the Grantor or who shall fail to pay, within s.~xty (60) days after the same comes due, any charges lega;ly made by the Grantee for services supplied, Grantee shal.; not be ob1 igated to renew service after such d~s- continuance, unless and until the customer shall hav~- reimbursed Grantee for its expense incurred in the discontinu,~nce and r~new~; of s~rvicm. 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 resi- dence 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 and privileges herein granted, Grantee shall install fire hydrants along the water mains located withln the geographical limits of the Sebastian Lakes Subdivision at locations as will meet the standards specified by City ordinances. SECTION 127. Taxes. If, during the life of this franchise, or anw 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 sha]; co];ect the amount of such tax from its customers for use and benefit of Grantor at the time of collecting the price charged for th~ sale of water. All such taxes levied and collected during the preceding month shall be reported and paid over on or before the fifteenth {l§th) day of each calendar month to Grantor less any administrative costs, agreed to by Grantor from time, to time, incurred by Grantee in the col]ection of such tax. SECTION 128. Renewal & Replacement Account. Two and one 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 Utll.ity shall initially fund said account with two thousand dollars ($2,000) which will also be reserved for capital main- tenance items. Interest shall accumulate in said account until the account reaches twenty five thousand dollars ($2~,000); thereafter interest shall be paid to the Utility annually. Said funds shall be used as a sinking fund and applied only for renewal and/or replac'ement of the water and/or wastewater system by the Utility as the need arises; the percentage required to be p;aced in the renewal and replace- ment account may be amended after review b~ the City as necessary to maintain a sufficient account balance taking into account the general condition of the system. The City is granted the r.~ght to make necessary repairs using said funds in the event of default on the part of the Utility in maintaining proper quality standards. SECTION 129. Contractual A~reement. It is specifically agreed by and between the parties hereto that this franchise shall be considered a franchise agreement between the Utility and the City and as such contractual instrument recognized under the Statutes and Laws of the State of Florida. This franchise agreement is not intended to create rights or actions runni~g in favor of third parties, except as herein specifically provided. - 6 - SECTION 130. Default of Franchise. If the Utility fai;s or refuses to promptly faithfully keep, perform and abide by each and all of the terms and cond.itions of this franchise, then Council shall give the Utility written notice of such deficiencies or de~'aults and reasonable time within which the Utility shall r~medg the same, which notice shall specify the deficienc~ or default. If the Utility fails to remedy such deficiency or dekault within a reasonable t~me, the Counci; mag thereafter sch~du]e a hearing concerning the same with reasonable notice thereof to th~ Ut~l~g, and after such hearing ~ which all interested parties sha~l be heard, ~he Cour~cl{ mug levy liquidated damages of up to fifty dollars ($~0) per day tha~ said d~ficienc~ or default exists from ~he da~e of said h~aring held bg ~he Council and the Council mag further ~imit or restric~ this franchise or franchise territory or may t~rminut~ and cancel th~ sum~ in whole or in part if proper re=son thereby are found b~ the Council. If the Council enters an order pursuant to such hearing and the Utility feels aggrieved b~ an~ such order, the Utilit~ mag seek review of Che Council's action by filing a petition for Wr.~t of Certiorari in the Circuit Court of the County. SECTION 131. Execution of Franch.ise. If any word, sections, clause or part of this Ordinance is held invalid, such portion shall be d~emed a separate and independent part and the sam~ shal~ not .in- validate ~he remainder. SECTION 132. Within a reasonable time after the City has notified the Utilit~ of ils intent to terminate the franchise and to acquire ~he system, the franchise holder shall con- ve~ all of its facilities together with all easements to the City. Said conveyance b~ the U~ilitg shall be without encumbrance. At ~his time th~ franchise holder shall convey unencumbered all of its facilities together with all easements ~o the City, wi~hou~ charge as to all propert~ contributed ~o th~ Utility, provided further, however, that ~he City shall h~ve the right to purchase the remaining assets of the Utllit~ based on the ave&age of the net original cost and u price as computed and agreed uBon b~ three (3) competent and qualified appraisers. The Cit~ shall select an ~ppralser, the Utility Shall se~ec~ an appraiser, and th~se two appraisers shall mutuallg agree upon and select a third independent appraiser and these three appraisers $hall 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 sWs~em which were pa~d for as contributions-~-a.id- of-construction bw an~ p~rson, firm or corporation other than the Util ~tg. ~%e City shall not bg condemnaaion or otherwise be required to p~g to the Utility ~n~ umouna for goodwill or prospective profit, or other intangible, and the appraised v~]ue shall be based ~ntire]g upon physical assets on~y, ~nd provided further that in the event said board of appraisers cannot agree as to the price tO be paid bg the C~fg, ~hen the C~tg mag file appropriate condemnation proceed.~ngs under Florida law. - 7 - IN WITNESS WtlEREOF, The Cit9 of Sebastian, Florida, has caused this franchise to be executed in the name of the City of Sebastian b~ the Mayor to be affixed and attested by its Clerk, all pursuant to the Ordinance of the C.ity of Sebastian ~,dopt~ on the II ~ d~ of ,~ , .~. S.igned, sealed and delivered An the presence of: CITY OF SEBP~7'IAN By:~ Attel : Deborah C. Krag-s ~ City Clerk ACCEPTANCE OF FRANCHISE SEBASTIAN LAKES UTILITIES COMPANY, a F;orida Corporation, does hereby accept the foregoing franchise, and for their successors and assigns does hereby covenant and agree to comp.ly with and abide by a;1 of the terms, conditions and provisions ~herein set forth and contained. ~A2~D at Sebastian, Ind.lan River County, Florida, th is , 198§. / da~ of - 8 - STATE OF FLORIDA COUNTY OF INDIAN RIVER I HEREBY CERTIFY that on this dag, before me, an officer dulg authorized i~~e~d~~esaid~~~/o~to take acknowledgements, personal ;~ appeared / UTILITY COMPANY, a Florida Corporation, and he acknowledged before me that he executed the foregoing instrument for the uses and purposes therein expressed. WITWESS mg hand and official seal .in the State and Countw aforesaid this Commission Expires: Notary Public, State of Florid~ My Commission Expires Nov, ~ !~ lonclect Tht~ Troy Fal~-In~urotl~ IIIG,~ - 9 - iIROJliCT I. CICATiON ~st, t~t~ ~ o~ ~. Fa[tsmar. - Sabastian Ro~d ( Catty Ro~d 5t2 ) R~e 38 E~mt, ty~ ~ of the Fm~mmmere - ~U&stt~ Ro~d ( Co.tv R~d ~t~ h bs~ ~e Right-Of-Way as rm;~dmd in O.R. ~ 225, Pagm t8& a~ the t~ ~e N~e&it c~r ot ~ctt~ 23~ Township 3t South, Range 38 ~it~ N O0 24'26" B, al~ ~e 5act~ line f~ · di~t~e of 1,398.1~ feet to ~e ' P~t~f-Blg~ f~ ~e herein de~ribed Parcel of L~; ~e~, r~ 8 37 43'43" W~ ~t~ the Southerly Rzght~f-W~Y [the of ~e T~e, r~ a 00 29'14" ~, &long th~ Kastern 5ectt~ line of Section 23~ Township St ~ Ra~e 38 K~st~ ·dtstance of t~329.77 feet, ~ the N~the4et c~r of ~ ~e ~ove de&crtbed Parcel of Land, 6~ct to · t~ feat wide m~mement f~ miectrtc~l p~pomem recorde tn O,R, ~K ~It P~ge 20~ ~t~c re~ of ]~n R~ver Co~ty~ RZVK~ COUNTY~ FLORZDA. EXHIBIT "A" TO SEBASTIAN LAKES UTILiTIY FRANCHISE Exhibit B- Sebastian Lakes Utilities Water and Sewer Franchise Rostd~nt%o] Uu%ta (Haxlmu~ char~o ba~od o~ m~x~um of up ~o 7,.~00 ~#w#~ - OL,000/Ru~ld~nc/al Unit - $12/monch (loc 3,000 aa1.) - ~1.40/1,000 &al. (3,000 Co 7,500 - ~9/month (l~t 3,000 gui.) Comu~rclal S1£o~ (~eolder~tl~l equZvalonc unit - 250 CPD). Hlalmm~ . ~ 50.00 Pluo oxco~ - 120,000 9,000aalloim - ~1.40/10000 sallmm - Total Conm~erclal bill 155.40 $205.40 * To be paid from development company to utility company at time of sale of individual unit. As amended and accepted City Council Meeting of September 11, 1985.