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Ordinance No. 93-t ORDINANCE NO. 93- AN ORDINANCE GRANTING A NON EXCLUSIVE FRANCHISE TO OKEECHOBEE BEACH WATER ASSOCIATION, INC., ITS SUCCESSORS AND ASSIGNS, TO OPERATE AND MAINTAIN WATER AND SEWER SYSTEMS IN A PORTION OF THE UNINCORPORATED AREA OF OKEECHOBEE COUNTY; IMPOSING PROVISIONS AND CONDITIONS RELATING THERETO, PROVIDING FOR BEVERABILITY; AND PROVIDING FOR AN EFFECTIVE DATE. NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS, OKEECHOBEE COUNTY, FLORIDA: ARTICLE I INTRODUCTION SECTION 1.01. DEFINITIONS. As used in this Ordinance, the following words and terms shall have the following meanings, unless the context clearly otherwise requires: "Association" means the Okeechobee Beach Water Association, Inc., a Florida corporation, its successors and assigns. "County" means Okeechobee County, Florida. "Franchise Agreement" means the agreement between the County and the Association as provided in this Ordinance and accepted by the Association pursuant to its terms, as amended by the parties. "MGD" is an abbreviation for "million gallons per day." "Service Area" means the lands described in Appendix B attached hereto. "Sewer system" means and includes any plant, system, facility, or property and additions, extensions and improvements thereto at any future time constructed or acquired as part thereof, useful or 1 necessary or having the present capacity for future use in connection with the collection, treatment, purification, or disposal of sewage of any nature or originating from any source, including industrial wastes resulting from any processes of industry, manufacture, trade or business or from the development of any natural resources; reclaimed water treatment transmission and distribution facilities; and without limiting the generality of the foregoing definition shall embrace treatment plants, pumping stations, lift stations, valves, force mains, intercepting sewers, laterals, pressure lines, mains, and all necessary appurtenances and equipment, all sewer mains and laterals for the reception and collection of sewage from premises connected therewith, and shall include all real and personal property and any interest therein, rights, easements, and franchises of any nature whatsoever relating to any such system and necessary or convenient for the operation thereof. "System" shall mean any water system or sewer system, including any reclaimed or irrigation water system, now owned and operated or hereafter owned and operated by the Association, unless the context otherwise requires. "System development charges" means fees and charges imposed to acquire, construct, equip or expand the capacity of the system facilities in excess of that reasonably determined by the Association to be necessary to provide service to current users of the system for the purpose of paying or reimbursing the equitable share of the capital ,cost relating to such acquisition, 2 construction, expansion or equipping of excess and unused capacity of the system or expansion thereof in order to serve new users of the facilities of the system and new development within the Service Area. "Water system" means and includes any plant, system, facility, or property and additions, extensions and improvements thereto at any future time constructed or acquired as part thereof, useful or necessary or having the present capacity for future use in connection with the development of sources, treatment, or purification and distribution of water for domestic or industrial use and, without limiting the generality of the foregoing includes dams, reservoirs, storage tanks, mains, lines, valves, pumping stations, laterals, and pipes for the purpose !of carrying water to the premises connected with such system and includes all real and personal property and any interests therein, rights, easementh an franchises of any nature whatsoever relating to any such system and necessary or convenient for the operation thereof. SECTION 1.02. CONSTRUCTION AND INTERPRETATION. (A) The terms "herein," "hereunder," "hereby," "hereto," "hereof," and any similar terms, shall refer to this Ordinance; the term "heretofore" shall mean before the date of adoption of this Ordinance; and the term "hereafter" shall mean after the date of adoption of this Ordinance. (B) Words importing one gender include every other gender. (C), Words importing the singular number include the plural number, and vice versa. lo 4 SECTION 1.03. FINDINGS. It is hereby ascertained, determined and declared that: (A) It is in the public interest to ensure that all lands within the Service Area are adequately provided with high quality fresh water service and high quality wastewater service. (B) It is in the public interest to retain control over the use of public and County maintained rights of way by providers of central water and sewer service 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 of right of way property. (C) It is in the public interest to attract, encourage, protect and nurture high quality, efficient and cooperative providers of water and sewer service and that this can be accomplished; by protecting the capital investments of private utility companies, associations or cooperatives providing service to members or rate payers who solely own or control such companies, associations or cooperatives. (D) It is in the public interest to ensure that high quality water and sewer service is maintained through a responsive complaint procedure. (E) The provision of central water and sewer services usually takes the form of a natural monopoly which, if not regulated, would have the power to operate without adequate regard for the public interest. (F) The granting of the nonexclusive franchise described herein promotes the decisive, cost efficient and environmentally sound provision of water and sewer utility services to the Service Area. (G) The County is desirous of having available to its citizens, visitors and landowners within the Service Area, in return for valuable consideration, certain water and wastewater facilities of sufficient size and capacity to serve the citizens, visitors and landowners within the Service Area at reasonable rates, and constructed in such a manner so that at such time as the County desires to purchase or otherwise acquire said facilities, that prospective purchasers of revenue bonds of the County to be used to obtain the funds to make such purchase or acquisition can be assured that the facilities are adequate and satisfactory and will produce;revenues capable of retiring said revenue bonds. 5 (H) The Association has indicated to the County that it is willing and desirous to undertake the installation and operation of 1.5 MGD water treatment plant and appurtenant facilities to serve the Service Area under a franchise from County. (I) The Association currently controls and operates a .1 MGD water treatment facility and owns and operates an extensive water distribution system serving over 3,200 accounts in the Service Area. (J) The Association is a not for profit corporate entity owned and operated solely by its members for their benefit and was created in 1964 with the acquiescence of the City of Okeechobee and the County to ptovide water service to the Service Area. (K) The Association has, since 1965, entered into a series of long term agreements with the City of Okeechobee wherein the City of Okeechobee recognized and defined the Association's service area and has been selling bulk water to the Association for the Association's use in providing.water service to the Service Area. The current bulk commodity agreement was entered into in 1985, terminates on October 1, 1994 and limits the amount of water to be supplied to the Association to .75 MGD. (L) As early as June of 1991, after extensive negotiations commencing as early as 1986 between the Association and the City to increase the daily bulk water supply to t Association beyond .75 MGD, were unfruitful, the Association notified the City that it would devglop its own treatment facilities and would no longer seek to purchase bulk water from the City after the current bulk commodity agreement expires on October 1, 1994. (M) The Association has diligently proceeded to test, acquire and design a potable water well field, acquire a water treatment plant site, design a 1.5 MGD water treatment plant, seek and obtain necessary approvals from the County, the Central Florida Regional Planning Council, the Florida Department of Environmental Regulation and the South Florida Water Management District. (N) The provision of central sewer service to a parcel of property by the same utility that provides central water service promotes water conservation, efficiency of service and is the most 6 cost effective alternative to provide wastewater services to the Service Area. (0) The Association has indicated to the County that it is willing to seek transition agreements with the operators of existing package water and sewage treatment plants and on -site disposal facilities within the Service Area, develop a plan in conjunction with the County to provide a central sewer system to all water customers served by the Association and, under certain circumstances, implement such'plan. (P) The provision of such central sewer system by the Association in the Service Area•is in the overall best interest of the health, welfare and safety of the citizens, visitors and landowners of the County. 7 ARTICLE II WATER AND SEWER SYSTEM FRANCHISE SECTION 2.01. GRANT OF AUTHORITY. (A) There is hereby granted to the Association, its successors and assigns, the non exclusive right, privilege or franchise, to construct, maintain and operate in, under, upon, over and across the present and future streets, alleys, bridges, easements, rights -of -way and other places owned by the County and its successors, water lines, pipes, wellfields, pumps, water treatment facilities and any and all other appurtenances necessary thereto for the purpose of operating a water system and supplying Area to the County,Iits successors, and water within the Service the inhabitants thereof, beyond the limits of the and persons and Service Area. 8 corporations within and (B) There is hereby granted to the Association, its successors and assigns, the non exclusive right, privilege or franchise, to construct, maintain and operate in, under, upon, over and across the present and future streets, alleys, bridges, easements, rights -of -way and other places owned by the County and its successors, wastewater collection and distribution lines, pumping stations, lift stations, forcemains, manholes, wastewater treatment facilities, reuse water facilities and any and all other appurtenances necessary thereto for the purpose of operating a sewer system and supplying sewer service or reuse water within the Service Area to the County, its successors, and the inhabitants thereof, and persons and corporations within and beyond the limits of the Service Area. SECTION 2:02. WATER SYSTEM USERS. All occupants and landowners within the Service Area are hereby granted the privilege and right to receive from the Association the water services described herein, subject to the terms and conditions described herein; provided, however, that any request for Association water services that requires the extension of water mains, shall be subject to prior approval of the County. Said approval shall not be unreasonably withheld. SECTION 2.03. SEWER SYSTEM USERS. All occupants and landowners within the Service Area are hereby granted the privilege and right to receive from the Association the wastewater services described herein, subject to the terms and conditions described herein; provided, however, that any request for Association wastewater services that require the extension of sewer or reuse water mains or the reconfiguration, installation or location of treatment facilities, shall be subject to prior approval of the County. Said approval shall not be unreasonably withheld. SECTION 2.04. TERM OF FRANCHISE; ORDINANCE CONSTITUTES FRANCHISE AGREEMENT. This Ordinance shall take effect and be in force from and after the final passage hereof, as required by law, and upon filing an acceptance by the Association with the County, in the form attached as Appendix A, within 7 days after the adoption of this Ordinance. Such franchise shall continue in force and effect for a term of. 30 years, beginning with the date of such 9 acceptance. This Ordinance, upon acceptance by the Association as provided herein, shall be construed as and constitute the Franchise Agreement. SECTION 2.05. FRANCHISE CONSIDERATION. (A) To compensate the County for the cost of administration, supervision and inspection rendered for the effective performance of this Franchise Agreement and as fair and reasonable rental for the use by the Association of the streets, alleys, bridges, easements, rights -of -way and other places owned by the County, the Association shall pay an annual fee to the County. Any amounts not paid when due shall earn interest at the same rate provided in Section 55.03, Florida Statutes. Within 60 days after the first anniversary date of this grant and within;60 days after each succeeding anniversary date thereafter, the Association, its successors and assigns, shall pay to the County and its successors and assigns, an amount equal to six percent (6 of the Association's gross revenues from the sale of water and the is provision of wastewater services to its customers within the geographic limits of Okeechobee County for the annual period proceeding the applicable anniversary date. (B) Nothing herein shall be construed to be a limitation on the assessment and collection of valid taxes, special assessments, licenses, fees, charges or other impositions by the County or other public or governmental body on or from the Association in excess of such six percent (6 amount. 10 (C) The County shall hold all monies collected under this section in a separate fund and only expend those funds, in the manner and amounts solely determined by the County, to develop or assist the Association in further developing water or sewer systems, or both, in the Service Area. SECTION 2.06. ASSIGNMENT. Before the Association shall sell, transfer or assign its facilities and operations under this franchise, written notice of at least 90 days shall be given by the Association to the County. The County shall have the right and option after receiving said notice and within said 90 day period, to elect to purchase or otherwise acquire the water system and sewer system of the Association operated under this franchise, upon the terms and conditions available to the County under Section 2.07 hereof. Said purchase by the County shall be consummated within 180 days of said notice, unless a different period of time shall be agreed upon by both parties. If this option is not exercised by the County and the perspective purchaser acquires the facilities and operations of the Association, such purchaser shall agree to be bound by the terms and conditions contained in this Franchise Agreement and shall provide the County sufficient evidence to establish its capacity to do so before said sale to the purchaser may be consummated. SECTION 2.07. RIGHT TO PURCHASE ASSOCIATION FACILITIES. (A) The County hereby reserves the right to terminate the franchise granted herein and purchase or otherwise acquire the water and sewer system of the Association operated under this 11 Franchise Agreement and such right of purchase is a condition precedent to the taking effect of this grant to the Association. The Association shall be deemed to have given and granted such right of purchase or acquisition by its acceptance of this franchise, which shall be signified by filing an acceptance by the Association with the County, in the form attached as Appendix A, within 7 days of the adoption date of this Ordinance. (B) In the event the County exercises its right to purchase or otherwise acquire all or any part of the water system or sewer system of the Association, the purchase price shall be mutually agreed upon by the Association and the County, but in no event shall the County be required to pay more than the amount of any outstanding indebtedness owed by the Association for revenue bonds or other obligations issued by the Association to finance the facilities or operations of its systems, if any, plus $100 additional consideration. (C) In consideration of the Association's agreement to limit the amount payable by the County to acquire the Association's water or sewer systems in accordance with subsection (B) above, the County or its successor in interest shall take title subject to a covenant running with the land and systems so acquired which requires the grantee, unless otherwise agreed to by the Association, (1) to operate any water or sewer system acquired from or formerly operated by the City of Okeechobee on a self liquidating basis, i.e., to impose rates and charges for the services provided by such systems that are sufficient to pay the 12 debt service, operating and maintenance expenses and all other costs properly allocable to such systems and (2) to segregate any system acquired from the Association from any system acquired from or formerly operated by the City of Okeechobee. Additionally, any future contract by which the County or its successor in interest agrees to transfer title to the Association's water and sewer system shall include a covenant. requiring the transferee to operate any water or sewer system acquired from the City of Okeechobee on a self liquidating and segregated basis, as aforesaid, specifying that the Association shall be a third -party beneficiary of such covenant. This subsection (C) shall not be construed to prohibit any physical interconnection between the Association's water or sewer system and any water or sewer system acquired from the City of Okeechobee to enhance either system's reliability for health and safety purposes on a temporary basis. 13 (D) Upon notice given to the Association under this section that the County will exercise its right to purchase or otherwise acquire the water system or sewer system Association's facilities or operations, the Association shall suspend all activities associated with debt financing unless otherwise agreed to by the County, execute a warranty deed and bill of sale for all such facilities and property, together with all documentation necessary to effect a transfer of all property and contract rights to the County, its successors or assigns, give possession and control of such systems to the County within 90 days and otherwise fully cooperate in the orderly transfer of assets and operations to the County. Upon receiving documents of title and the possession and control of the, equipment, facilities and operations of the Association, the County shall then become responsible for all care, maintenance and operation of such property. (E) Nothing in this section shall limit the County's ability to exercise its powers of eminent domain to otherwise acquire the systems of the Association. However, in the event the County does acquire the systems of the Association by eminent domain, the covenants in this Section shall be deemed unenforceable and severed from this Franchise Agreement. SECTION 2.08. CONSTRUCTION TIMETABLE. (A) The Association has represented to the County that it has tested, acquired and designed a potable watertwell field, acquired a water treatment plant site, and is designing a 1.5 MGD water treatment plant to serve the Service Area. The Association shall continue to seek and obtain necessary approvals, permits and f and construct a water treatment plant to serve the potable water needs of the Service Area when its current commodity agreement with the City of Okeechobee expires in October of 1994. (B) No later than within one year after the Association's water treatment plant is substantially complete, the Association shall develop and submit a plan to the County to provide central wastewater services to all water customers served by the Association. The County and the Association shall actively participate in the development of the plan. To the extent of the funds actually paid to the County under section 2.05 or to the extent the South Florida Water Management District provides funding for such activity to the County, the County shall reimburse the Association or otherwise bear all costs of both the Association and the County in developing such plan. In any event, the Association shall have no obligation to implement the plan. The implementation of such a plan by the Association shall be subject to assistance from the local, state and federal governments in providing funding and developing an affordable infrastructure delivery program. (C) The County has entered into a cooperative funding agreement with the South Florida Water Management District. The potential for negative environmental effects as a result of the proliferation of package treatment plants and septic systems within close proximity to Lake Okeechobee was the drib ing force behind the cooperative funding agreement and appropriations thereunder are dependent upon future budget approvals. The County shall, subject to the terms and intent of such cooperative agreement as amended, assist the Association in fulfilling the Association's obligations under the Franchise Agreement relative to planning and developing central water and sewer systems in the Service Area. SECTION 2.09. TERMINATION. Failure of the Association to comply substantially with any material provisions of this Franchise Agreement shall be grounds for termination of this grant, but no such termination shall take effect until expiration of 180 days from the date of receipt by the Association of written notice of such material non compliance and the failure of the Association to cure such material non compliance during such 180 day period to the 15 satisfaction of the County. The County may in its discretion grant additional time to the Association for compliance as required by the circumstances of the case. SECTION 2.10. BREACH. The Association recognizes that the failure on the part of the Association to comply with the terms of this Franchise Agreement is likely to cause irreparable damage to the County, and damages at law will be an inadequate remedy. Therefore, the Association agrees that in the event of a breach or threatened breach of any of the terms of this Franchise Agreement by the Association, the County shall be entitled to an injunction restraining such breach or to a decree of specific performance, or both, without showing or providing any actual damage, together with recovery of reasonable attorneys fees and costs incurred in obtaining said equitable relief until such as a final and binding determination is made by the court. The foregoing equitable remedy shall be in addition to, and not in lieu of, all other remedies or rights which the County may otherwise have by virtue of any breach of this Franchise Agreement by the Association. The County shall be entitled to seek injunctive relief without the posting of any bond or security to obtain the entry of temporary and permanent injunctions and an order of specific performance enforcing the provisions of this Franchise Agreement. 16 ARTICLE III OPERATIONS SECTION 3.01. USE OF RIGHT -OF -WAYS. (A) In performing the work and providing the water system and sewer system services provided by this franchise, the Association shall, at its expense and without reimbursement from the County, locate or relocate its system facilities so as to interfere as little as possible with traffic, over said streets, alleys, bridges, easements, rights -of -way and public places owned by the County and shall provide reasonable access to abutting public and private property. All system facilities shall be located or relocated under the County's supervision and with the County's approval; however, the County shall not unreasonably interfere with the proper ;operation of the water and sewer system of the Association. (B) Any portion of a street or other public way or facility disturbed by the Association's excavations or operations shall within a reasonable time and as early as practicable after disturbance, be restored by the Association at its expense in as good or better condition as it was and immediately prior to the disturbance. SECTION 3.02. CONSTRUCTION OR INSTALLATION OF FACILITIES. The construction, maintenance and operation of water system and sewer system facilities, both as to those portions located within the Service Area and those portions located beyond the Service 17 Area, shall be subject to the prior approval of the County of the plans and specifications for all such construction shall first be approved by the County before construction is commenced. The County, through its employees, officers or agents shall have the right to inspect the system facilities of the Association at any reasonable time. SECTION 3.03. SYSTEM MAINTENANCE. (A) The Association shall maintain in good condition and operate its water and sewer systems so as to render efficient service to the County and its inhabitants, and the Association shall comply with the rules and regulations as are, or may be, described under the terms of this Franchise Agreement, and those set forth by the State and federal governments for the operation of water and sewer systems. (B) Whenever it is necessary to shut off or interrupt service for the purpose of making repairs, adjustments or installations, the ,Association shall do so at times and under circumstances as will cause the least amount of inconvenience to its customers. (C) All water service shall be supplied through meters which shall accurately measure the amount of water supplied to all customers. The Association shall at any time requested by a customer, make a test of the accuracy of any water meter. The Association may impose a reasonable charge for such an accuracy test. (D) The Association shall install and maintain at its own expense all necessary fittings, pipes and appliances, including all 18 meters and meter boxes to delivery water to its customers. All said fittings, pipes, appliances, meters and meter boxes shall remain the property of the Association and shall at all times be accessible to it or under its control. (E) No plumber, owner or other unauthorized person shall install or disconnect or remove a meter provided under this franchise without the consent of the Association. SECTION 3.04. TRANSITION AND SERVICE AGREEMENTS. (A) The Association shall identify all owners and operators of package water and wastewater treatment plants, and on -site disposal facilities within the Service Area and seek transition agreements, in form acceptable to both the County and the Association, which provide for the transition of these package or on -site treatment facilities to service by water system and sewer system facilities provided by the Association. (B) The Association shall revise its water service agreement procedures to require all landowners who have developed or are seeking to develop their lands in a manner that requires or will require the development of a central sewer collection system to covenant in writing (1) to dedicate all wastewater collection facilities and easements to the Association, in conformance with procedures adopted by the Association, or otherwise hold such facilities and easements in trust for the benefit and use of the users thereof, and (2) that, when and if the Association or its successors or assigns provides wastewater treatment services, the landowners shall abandon the use of any private or investor owned 19 treatment facilities at the landowners' expense and become a customer of the Association's sewer system. SECTION 3.95. CONTRIBUTIONS TO BENEFIT USERS. In the event of the condemnation an investor owned water or sewer utility by the County or the Association, or in the event of the condemnation by the County of a system owned or operated by the Association, all contributions in aid of construction, including those defined in Section 367.021(3), Florida Statutes, received by such utility subsequent to the effective date of this Ordinance shall be deemed held by the utility solely for the use and benefit of its customers and such assets and contributions shall not constitute an investment or equity or property interest of the utility in the condemned assets in any evaluation method presented in such condemnation proceedings. Such prospective consideration of the investment reality of contributions in aid of construction in condemnation proceedings is in the public interest to insure that the rate payer does not pay for the utility system twice, once through their contributions and a second time through rates to support the acquiring utilities' investment when a condemnation award includes such contributions. SECTION 3.06. RATES, FEES AND CHARGES. (A) The Association shall from time to time, by resolution, adopt a schedule of rates, fees or other charges for the use of the water system and sewer system of the Association to be paid by the owner, tenant or occupant of each parcel of land which may be connected or provided with service by such system. The initial 20 schedule of rates, fees and other charges, shall be those already in effect within the boundaries of the Service Area as of the effective date of this Franchise Agreement. The Association may thereafter revise the schedule of rates, fees and charges from time to time. However, such rates, fees and charges shall be adopted and revised so as to provide monies, which, with other funds available for such purposes, shall be sufficient at all times to pay the expenses of operating and maintaining its systems, including reserves for such systems and the principal and interest on any revenue bonds or other obligations as the same shall become due and the reserves therefore, and provide a reasonable margin of safety over and above the total amount of such payments, to comply fully with any covenants contained in any resolution authorizing the issuance of bonds or other obligations of the Association or assumed by the Association. (B) Such rates, fees and charges shall just and equitable and 'uniform for the users in the same class and may be based upon or computed upon any factor or combination of factors affecting the use of the services or facilities furnished, as may be determined by the Association from time to time. No rates, fees or charges shall be fixed, adopted or revised under the foregoing provisions until a public hearing in which all the users of the system affected thereby, or owners, tenants or occupants served or to be served thereby, and all other interested persons shall have an opportunity to be heard concerning the proposed rates, fees or charges. Notice of such public hearing setting forth the proposed 21 schedule or schedule of rates, fees or charges, shall be sent to the County and shall also be given by one publication in a newspaper circulating in Okeechobee County at least 20 days before the date fixed in such notice for the public hearing, which may be adjourned from time to time. After such hearing, the proposed schedule or schedules, either as initially adopted or as modified or amended, may be finally adopted. (C) The rates, fees or charges adopted for any class of users or properties served shall be extended to cover any additional users of properties thereafter served which shall fall within the same class, without the necessity of any further hearing or notice. (D) Except as expressly provided by law, no free water sewer services shall be rendered by the ;Association and discrimination shall exist in the fees, rates and charges for the users of the, same class. SECTION 3.07. SYSTEM DEVELOPMENT CHARGES. (A) The Association may levy and collect system development charges for the water system and the sewer system, or both, for capital improvements and debt service on such capital improvements as thereafter specified. (B) Within the Service Area, under the following conditions, the Association may levy and collect system development charges for the water system and the sewer system, or both, for capital improvements and debt service on such capital improvements as hereinafter specified, within the Service Area, under all of the following conditions: 22 or no (1) Whenever a property owner or his authorized representative connects an existing structure to a system or portion thereof owned or operated by the Association; (2) Whenever a property owner or his authorized representative applies for a building permit to alter an existing structure previously connected to a water system or sewer system owned or operated by the Association, where such alteration increases the potential demand on the Association's systems; and (3) Whenever a property owner or his authorized representative applies for a building permit to construct a structure or alter a structure on property which according to a plan adopted by the Association or the County is scheduled in the future to be connected to a system owned or operated by the;Association even though the property owner or his representative may receive interim water or interim sewer service from a source other than the Association. (C) If the structure on the property for which a system development charge has been paid is not authorized to connect to the Association's systems within 10 years of the date of such payment, the property owner holding legal title at the end of the 10 -year period shall be eligible for a refund of the system development charge without interest. The Association shall notify the property owner of his eligibility for a refund by mailing notice and an application for refund to the property owner. Such notice shall be sent by, certified or registered mail with return 23 receipt requested to the then owner of record as shown on the most recent ad valorem tax roll. Any property owner eligible for a refund shall file written application with the Association for a refund within 90 days of the date of mailing of the notice by the Association or such property owner shall be deemed to have waived any right to a refund, and the Association shall be entitled to retain and apply the system development charge for capital water and sewer improvements. Failure to construct the structure for which a system development charge has been paid shall not constitute grounds for a refund, nor shall delay or failure to receive the mailed notice of eligibility for a refund toll the 90- day time limit within which an application for refund must be filed. (D) All system development charges imposed for the water system shall be segregated from all other funds held by,the Association and placed in a special fund. Except as otherwise provided by the resolution authorizing the issuance of bonds or other obligations of the Association, monies from this fund shall not be transferred or used for any purpose other than capital improvements for raw water supplies, water treatment facilities, water transmission mains, storage facilities, pumping facilities, distribution lines, and related facilities required to provide new connections by new customers and for payment of debt service on public obligations issued to finance any such capital improvements. Capital improvements which are designed to benefit existing 24 customers of the Association shall not be paid for with monies from this fund. (E) All•,system development charges imposed for the sewer system shall be segregated from all other funds held by the Association and placed into a special fund. Except as otherwise provided by the resolution authorizing the issuance of bonds or other obligations of the Association, monies from this fund shall not be transferred or used for any purpose other than capital improvements for sewage treatment and disposal facilities, sewage transmission facilities, reclaimed water treatment facilities, reclaimed water distribution facilities and related facilities required to provide new connections by new customers and for payment of debt service on public obligations issued to finance any such capital improvements. Capital improvements which are designed to benefit existing customers of the Association shall not be,paid for with monies from this fund. i. (F) All system development charges shall be reviewed at least every three years by the Association to determine that the charges are equitable and proportionate to the current estimate of costs for providing the capital improvements for which the charges are imposed. The Association may change or revise the schedule of system development charges upon compliance with the notice and hearing requirements set forth for the adoption of rates, fees and other charges. (G) The Association, in its discretion, may permit the owners of existing structures which connect to the Association's system 25 to pay system development interest over a period not system development charges unpaid balance thereof and on real property. charges on an installment basis with to exceed 10 years. In the event that shall not be paid as and when due, any all interest accruing thereon may also be a lien on any parcel of property affected thereby. In the event that any such system development charge shall not be paid as and when due and shall be delinquent for 30 days or more, the Association may file a notice of lis pendens and the unpaid balance thereof and all interest accrued thereon at the legal rate, together with attorney's fees and costs, may be recovered by the Association in a civil action, and any such lien and accrued interest may be foreclosed or otherwise enforced by the Association by action or suit in equity as for the foreclosure of a mortgage 26 1 (H) System development charges may be pledged to the payment of bonds or other obligations of the Association, provided that the Association has agreed in the resolution authorizing such bonds or other obligations that it maintain net revenues, together with special assessment proceeds and other revenues derived by the Association, exclusive of system development charges, equal to at least 100 percent of the debt service on such bonds or obligations. SECTION 3.08. REPORTING REQUIREMENT, BOOKS AND RECORDS. (A) The County or its designee shall have the right to review all records maintained by the Association on five days' written notice. (B) An annual audit of the Association's books and records shall be prepared by an independent Florida certified public accounting firth in accordance with generally accepted accounting principles and shall be delivered to the County, at the Association's expense, within 120 days of the twelve month period ending the Association's fiscal year. Said audit shall include, but not be limited to the following elements: (1) balance sheet; (2) statement of revenue and expenses segregated by type of services (water and wastewater); and areas served (Okeechobee County or Glades County); (3) statement of cash flows; and (4) notes to financial statements. The Association shall establish and maintain at its own expense during the term of this franchise, a bookkeeping, accounting and recordkeeping system to facilitate the preparation of said audit and ,shall preserve for at least six years from the date from their preparation, full, complete, and accurate books, records, and accounts that have been consistently applied in accordance with generally accepted accounting principles. SECTION 3.09. COMPLAINTS. (A) All service complaints shall be directed to the Association. The County shall notify the Association of any complaint communicated to the County. All complaints received by the Association shall be immediately recorded in the complaint log maintained by the Associ Complaints shall be resolved within 27 24 hours after being received by the Association. When a complaint is received after 12:00 noon on a Friday or the day preceding a holiday, it shall be resolved by the Association no later than the next regular working day. (B) The Association shall supply the County on a periodic basis, no less often than monthly, a typed statement of all oral or written complaints (including copies of written complaints received) on a complaint form or other written format approved by the County, from any source and whether or not received and forwarded to the Association by the County. Such statement shall be in a format indicating the date and hour of inquiry or complaint received, the nature of the ,complaint received and a full explanation of the disposition of the complaint. The Association shall establish procedures acceptable to the County to ensure that all customers are notified as to complaint procedures, rule; and regulations, rates and fees charged or imposed by the Association. Thes County may from time to time contact customers directly regarding the quality of service and the disposition of complaints. SECTION 3.10. PERFORMANCE MONITORING. (A) In order to fully implement the provisions of this Franchise Agreement, a panel for the review of the quality of services provided shall be created to consist of three members, one member representing the Association, one member representing the County, and a third independent member chosen by the previously named two members. It shall be the function of this committee to review, report and make recommendations to the County and the 28 Association, not less often than annually, 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 Association enumerated in this Franchise Agreement 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 or wastewater utility industry. SECTION 3.11. MANDATORY' USE OF ASSOCIATION FACILITIES AND SERVICES. All lands, buildings, premises, persons, firms and corporations or other users within the Service Area, shall use the water and sewer facilities of the Association, or any other service provider authorized by the County, when and where ever such 1 services and facilities become available; and for such purposes, the Association shall be entitled to seek injunctive relief, either mandatory or prohibitory, to enforce the use of Association facilities or services. SECTION 3.12. PLANNING REQUIREMENTS. (A) Within three years after the effective date of the Franchise Agreement, the Association shall adopt a master plan which identifies current customers, projects and future customers; profiles customers (residential, commercial, industrial); reviews and generally inventories all existing infrastructure and treatment facilities within the Service Area; identifies a capital improvement program for the Association; reviews all current permits and compares existing regulations to projected regulations; 29 identifies and evaluates potential acquisitions or service expansions; evaluates Association staffing; provides for detailed mapping of system facilities; provides for hydraulic analysis of system facilities, both existing and proposed; evaluates present and future sources of raw water and the treatment requirements for those sources in terms of capacity, reliability and economy; provides for an analysis of all available wastewater alternatives, including surface water discharge, wetlands discharge, percolation facilities, spray irrigation and deep well injection; identifies reclaimed water storage alternatives and wetweather back -up alternatives; and identifies current and potential high volume users of reclaimed water. Thereafter, the Association shall review, and if necessary amend the master pin periodically, but not less often than every three years. (B) Treatment facility construction or expansion or ,line extension policies adopted by the Association shall be in furtherance of land development regulations adopted by the County. (C) The construction or expansion of any portion of the Association's systems, or major alterations which affect the quantity or quality of the level of service of the Association's systems, which is undertaken or initiated by the Association shall be consistent with the applicable local government comprehensive plan of the County adopted pursuant to Chapter 163, Part 1I, Florida Statutes; provided, however, that this obligation shall not be construed to allow a local government comprehensive plan to require the Association'to construct, expand, or perform a major 30 alteration of any public facility which would result in the impairment of covenants and agreements relating to bonds or other obligations, issued or assumed by the Association. (D) When the County has issued a development order which approves the construction of public facilities or has issued a development order pursuant to Chapter 380, the County shall not use the requirements of this sectipn to limit or modify the rights of the Association to approve, construct, modify, operate, or maintain public facilities authorized by the development order. (E) The Association shall take no action which is inconsistent with applicable comprehensive plans, land development ordinances, or regulations adopted by the County. SECTION 3.13. COMPLIANCE WITH OTHER LAWS, ORDINANCES AND REGULATIONS. (A) This franchise does not and shall not be construed to relieve the Association from any obligation to address any permit, condition, term, approval or restriction and shall not relieve the Association or its successors, of the obligation to comply with any law, ordinance, rule or regulation governing said permitting requirements, conditions, approvals or restrictions. (B) All extensions of water and sewer system facilities and service shall be subject to the approval of the County and said approval will not be granted if such grant would be inconsistent with the County's comprehensive land use plan or zoning ordinance. (C) Nothing in this ordinance shall be construed as a surrender by the County,of its right or power to pass ordinances 31 regulating the use of ii• 3 sidewalks, alleys, rights -of- way and easements. The Associate shall abide by all such ordinances relative to i activities. (D) This Franchi Agreemei: j! not and shall not be construed ;u a Bevel pr it agreement pursuant to the Florida Local Government Developm greem(tit Act, Sections 163.3220- 163.3243, Florida Statutes. 32 ARTICLE IV GENERAL SECTION 4.01. INDEMNIFICATION. The County shall in no way be liable or responsible for any accident or damage that may occur in the construction, operation and maintenance by the Association of the water or sewer systems hereunder, and the acceptance of this Ordinance shall be deemed the agreement on the part of the Association to defend, fully protect, indemnify and hold harmless the County from and against each and every claim, demand or cause of action in any and all liability, costs, expense (including but limited to reasonable attorneys' fees, costs and expenses incurred in the defense of the County, even if incident to appellate, post judgment or bankruptcy proceedings), damage or loss in connection therewith which may be made or asserted by the Association,, the Association's employees or agents, or any third parties (including but not limited to the County) on account of personal injury, death, damage or property damage caused by, or arising out of in any way incidental to or in connection with its performance hereunder. At the election of the County, the Association shall contest or defend the County against any such claims of liability against the County. The County shall in any event, have the right, through counsel of its choice, to control the defense or response to any such claim to the extent it could affect the County financially, this indemnification shall also include any claim or liability arising from or in any way related to actual or 33 threatened damage to the environment, including agency cost by investigation, personal injury or death, or damaged property. Only those matters which are determined by a final, nonappealable judgment to be the result of the negligence of the County shall be excluded from the Contractor's duty to indemnify the County, but only to the extent of the negligence of the County. For the purpose of this section, the .term "County" shall be deemed to include the County Board of Commissioners and its agents, employees and affiliates. For purposes of this indemnification, "claims" shall mean and include all obligations, actual and consequential damages and costs reasonably incurred in the defense of any claim against the County, including, but not limited to reasonable accountants', attorneys' and expert witness fees and costs of investigation and proof of facts, court costs, other litigation expenses, and travel and living expenses. The County shall have the right to defend such claim against it in any such manner as the County deems appropriate or desirable in its sole discretion. The indemnity shall continue in full force and effect subsequent to and not withstanding the expiration or termination of the franchise granted herein. SECTION 4.02. CHANGE OF LAW. Changes in law in the future, including, but not limited, legislative, judicial or administrative changes, which governments or mandate certain actions water and sewer utility changes or modifications in some obligations under the franchise granted herein. Nothing contained 34 of the or programs for local providers may require terms or conditions or in this Franchise Agreement shall require any party to perform any act or function contrary to law. SECTION 4.03. AMENDMENTS AND WAIVERS. No amendment, supplement, modification or waiver of the Franchise Agreement granted herein shall be binding unless executed in writing by the County and the Association. No waiver of any of the provisions of this Ordinance shall be deemed or constitute a waiver of other provisions of this Ordinance, whether or not similar, unless otherwise expressly provided. Each such amendment, supplement, modification or waiver of this Ordinance shall be filed with the Clerk of the Circuit Court of Okeechobee County. SECTION 4.04. SEVERABILITY. The provisions of this Ordinance are severable. If any section, subsection,; sentence, clause or provision is held invalid by any court of competent jurisdiction, the remaining provisions of this Ordinance shall not be affected thereby; y; except that if the County finds the invalidated portion to be an essential part of this franchise the County may declare this franchise terminated. SECTION 4.05. ALTERNATIVE METHOD. This Ordinance shall be deemed to provide an additional and alternative method for the doing of the things authorized hereby and shall be regarded as supplemental and additional to powers conferred by other laws, and shall not be regarded as in derogation of any powers now existing or which may hereafter come into existence. This Ordinance, being necessary for the welfare of the inhabitants of the County, shall be liberally construed to effect the purposes hereof. 35 SECTION 4.06. EFFECTIVE DATE. This Ordinance shall not take effect unless the Association files an acceptance with the Clerk of the Board of County Commissioners, in the form attached as Appendix A, within seven (7) days of enactment by the Board and, in such an event, a certified copy of this Ordinance shall be filed with the Department of State by the Clerk of the Board of County Commissioners within ten (10) days of enactment by the Board and shall take effect upon receipt of official acknowledgement of filing as provided in Section 125.66(2), Florida Statutes. DULY ENACTED, by the Okeechobee County Commissioners this day of April, 1993. (SEAL) ATTEST: Clerk 36 BOARD OF ;COUNTY COMMISSIONERS OKEECHCIBEE COUNTY, FLORIDA By: Chairman APPENDIX A FORM OF ACCEPTANCE This Acceptance is made and entered into this day of 1993, by the Okeechobee Beach Water Association, Inc., a Florida corporation (hereinafter the "Association after complying with the requirements of Section 617.1202, Florida Statutes, and is hereby delivered to the Board of County Commissioners of Okeechobee County, Florida, as the governing body of Okeechobee County (hereinafter the "County WHEREAS, this Acceptance shall be an appendix to the ordinance granting a franchise to the Association and its successors and assigns to operate and maintain water and sewer systems within a portion of the unincorporated area of Okeechobee County (hereinafter the "ordinance That the Association for and in consideration of the sum of ten dollars ($10) and other valuable consideration paid by the County, receipt of which is hereby acknowledged, hereby conveys, grants, bargains and sells unto the County, its successors and assigns, the right to acquire the systems, facilities and operations of the Association on the terms andlconditions contained in the Ordinance. Said ordinance (adopted as Okeechobee County Ordinance No. 93 is incorporated herein by reference. Further; that the Association by its execution of this Acceptance hereby agrees, for itself and its successors and assigns, to accept all of the rights and privileges granted by the Ordinance and be bound by all the obligations thereunder as a non exclUsive franchisee of the County. This Acceptance shall become effective upon enactment of the Ordinance by the County and shall run with the land and property of the Association, its successors and assigns. IN WITNESS WHEREOF, the Association has caused these presents to executed the date and year first above written. Witness Witness ACCEPTANCE W I T N E S S E T H: A -1 OKEECHOBEE BEACH ASSOCIATION WATER, INC., a Florida corporation By: President STATE OF FLORIDA COUNTY OF OKEECHOBEE The foregoing Acceptance was acknowledged before me by who is personally known to me, as President of the Okeechobee Beach Water Association, Inc., a Florida corporation, on behalf of the corporation. WITNESS my hand and Official Seal this day of 1993. I hereby certify that this Acceptance was duly filed with the Clerk to the Board of County Commissioners of Okeechobee County, Florida, pursuant to the terms of Okeechobee County ordinance, No. 93-___, on this day of 1993. (SEAL) ATTEST: Clerk Signature of Notary Public Name of Notary Public typed, printed or stamped My Commission Expires: APPENDIX B SERVICE AREA 1 4 SERVICE AREA Beginning at the Township line between T37S and T38S on the Martin County line proceed west along the north section line of sections 1, 2 and 3 in T38S to the West corner of Section 3 thence north along the east section line of section 33, T37S to the northeast corner of section 33 thence west along the north section line of section 33 and 32 to the half section line of section 32, 29 thence north on the half section line of section 29 to the east west section line between sections 29 and 20 thence west along this section line along the north side of sections 29, 30 T37S, R36E and section 25 and section 26, T37S, R35E to the west section line of section 26 then south along the west section line of section 26 to its southwest corner thence west along the north section line of section 34 to the northwest corner of section 34 thence south along the west section line of section 34 to the north 1/4 section line, thence west on the north 1/4 section line to the half section line of section 33 thence south on the half section line to the east west 1/2 section line to the north south section line between sections 33 and 32 thence south to the south west corner of section 33 thence west along the south section line of section 32 to the southwest corner of section 32 thence south to the east west half section line of section 5, T38S, R35E thence west to the Township Range line between R35E and R34E thence south to the north 1/4 section line of section 1 thence west on the south section line of section 1 to the Hoover Dyke Road, thence southeast along the Hoover Dyke Road to Lake Okeechobee, thence northeast and south along Lake Okeechobee shore line to the Martin County line, thence north along the Martin County line to the point of beginning. LESS AND EXCEPT those lands lying 100 feet on each side of U.S. I- lighway 441 from the Okeechobee City Limits south to the intersection of State Road 78 and those parcels along U.S. Highway 441 being served by the City of Okeechobee as of the effective date of this Ordinance. ALSO LESS AND EXCEPT the following subdivisions: Ousley Estates, recorded in Plat Book 5, Pages 36 and 37, and Palm Village Ranch, recorded in Plat Book 6, pages 34 and 35, Public Records of Okeechobee County, Florida: 4 SERVICE AREA Beginning at the Township line between T37S and T38S on the Martin County line proceed west along the north section line of sections 1, 2 and 3 in T38S to the West corner of Section 3 thence north along the east section line of section 33, T37S to the northeast corner of section 33 thence west along the north section line of section 33 and 32 to the half section line of section 32, 29 thence north on the half section line of section 29 to the east west section line between sections 29 and 20 thence west along this section line along the north side of sections 29, 30 T37S, R36E and section 25 and section 26, T37S, R35E to the west section line of section 26 then south along the west section line of section 26 to its southwest corner thence west along the north section line of section 34 to the northwest corner of section 34 thence south along the west section line of section 34 to the north 1/4 section line, thence west on the north 1/4 section line to the half section line of section 33 thence south on the half section line to the east west 1/2 section line to the north south section line between sections 33 and 32 thence south to the south west corner of section 33 thence west along the south section line of section 32 to the southwest corner of section 32 thence south to the east west half section line of section 5, T38S, R35E thence west to the Township Range line between R35E and R34E thence south to the north 1/4 section line of section 1 thence west on the south section line of section 1 to the I- loover Dyke Road, thence southeast along the Hoover Dyke Road to Lake Okeechobee, thence northeast and south along Lake Okeechobee shore line to the Martin County line, thence north along the Martin County line to the point of beginning. 1 LESS AND EXCEPT those lands lying 100 feet on each side of U.S. Highway 441 from the Okeechobee City limits south to the intersection of State Road 78 and those parcels albrig U.S. I-lighway 441 being served by the City of Okeechobee as of the effective date of this Ordinance. ALSO LESS AND EXCEPT the following subdivisions: Ousley Estates, recorded in Plat Book 5, Pages 36 and 37, and Palm Village Ranch, recorded in Plat Book 6, pages 34 and 35, Public Records of Okeechobee County, Florida: LEGAL DESCRIPTION OF OKEECHOBEE BEACH WATER ASSOCIATION SERVICE DISTRICT Beginning at the Township line between T37S and T385 on the Martin County line proceed west along the north section line of sections 1, 2 and 3 in T38S to the West corner of Section 3; thence north along the east section line of section 33, T37S to the northeast corner of section 33 thence west along the north section line of section 33 and 32 to the half section line of section 32, 29 thence north on the half section line of section 29 to the east west section line between sections 29 and 20 thence west along this section line along the north side of sections 29, 30, T37S, R36E and section 25 and section .26,T37S, R35E to the west section line-of 26 along the* W.t west section line of section 26 to its southwest corner thence west along the north section line of section 34 to the northwest corner of section 34 thence south along the west section line of section 34 to the north 1/4 section line, thence west on the north 1/4 section line to the half section line of section 33 thence south on the half section line to the east west 1/2 section line of section 33 thence west along the east west 1/2 section line of the north south section line between section 33 and 32 thence south to the south west corner of section 33 thence west along the south section line of section 32 to the southwest corner of section 32 thence south to the east west half section line of section 5, T38S, R35E thence west to the township Range line between R35E and R34E thence south to the north 1/4 section line of section 1 thence west on the south section line of section 1 to the Hoover Dyke Road, thence southeast along the Hoover Dyke Road to Lake Okeechobee, thence northeast and south along Lake Okeechobee shore line to the Martin County line, thence north along the Martin County line to the point of beginning.