Water and Sewer Franchise Ordinance 93-5OKEECHOBEE COUNTY, FLORIDA
OKEECHOBEE BEACH WATER ASSOCIATION, INC.
WATER AND SEWER FRANCHISE ORDINANCE
ADOPTED APRIL, 1993.
DRAFT #4: 4/14/93
93007.00
3C
SECTION 1.01. DEFINITIONS
SECTION 1.02. CONSTRUCTION AND INTERPRETATION
SECTION 1.03. FINDINGS.
SECTION 2.01.
SECTION 2.02.
SECTION 2.03.
SECTION 2.04.
SECTION 2.05.
SECTION 2.06.
SECTION 2.07.
SECTION 2.08.
SECTION 2.09.
SECTION 2.10.
SECTION 3.01.
SECTION 3.02.
SECTION 3.03.
SECTION 3.04.
SECTION 3.05.
SECTION 3.06.
SECTION 3.07.
SECTION 3.08.
SECTION 3.09.
SECTION 3.10.
SECTION 3.11.
SECTION 3.12.
SECTION 3.13.
TABLE OF CONTENTS
ARTICLE I
INTRODUCTION
ARTICLE II
WATER AND SEWER SYSTEM FRANCHISE
fLLK'344 ?Cf1129
PAGE
1
3
4
GRANT OF AUTHORITY 8
WATER SYSTEM USERS 9
SEWER SYSTEM USERS 9
TERM OF FRANCHISE; ORDINANCE CONSTITUTES
FRANCHISE AGREEMENT 9
FRANCHISE CONSIDERATION 10
ASSIGNMENT 11
RIGHT TO PURCHASE ASSOCIATION FACILITIES 11
CONSTRUCTION TIMETABLE 14
TERMINATION 15
BREACH 16
ARTICLE III
OPERATIONS
USE OF RIGHT -OF -WAYS 18
CONSTRUCTION OR INSTALLATION OF FACILITIES 18
SYSTEM MAINTENANCE 19
TRANSITION AND SERVICE AGREEMENTS 20
CONTRIBUTIONS TO BENEFIT USERS 21
RATES, FEES AND CHARGES 21
SYSTEM DEVELOPMENT CHARGES 23
REPORTING REQUIREMENT, BOOKS AND RECORDS 27
COMPLAINTS 28
PERFORMANCE MONITORING 29
MANDATORY USE OF ASSOCIATION FACILITIES AND
SERVICES 30
PLANNING REQUIREMENTS 30
COMPLIANCE WITH OTHER LAWS, ORDINANCES AND
REGULATIONS 32
i
SECTION 4.01. INDEMNIFICATION 34
SECTION 4.02. CHANGE OF LAW 35
SECTION 4.03. AMENDMENTS AND WAIVERS 36
SECTION 4.04. SEVERABILITY 36
SECTION 4.05. ALTERNATIVE METHOD 36
SECTION 4.06. EFFECTIVE DATE 37
APPENDIX A
APPENDIX B
ARTICLE IV
GENERAL
FORM OF ACCEPTANCE
SERVICE AREA
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ORDINANCE NO. 93- 5
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
SEVERABILITY; AND PROVIDING FOR AN EFFECTIVE
DATE.
NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY
COMMISSIONERS, OKEECHOBEE COUNTY, FLORIDA:
ARTICLE I
or property and additions, extensions and improvements thereto at
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,
any future time constructed or acquired as part thereof, useful or
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necessary or having
connection with the
disposal of sewage of
including industrial
BE 3 41 FICE1132
the present capacity for future use in
collection, treatment, purification, or
any nature or originating from any source,
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,
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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, easements 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.
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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.
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(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.
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(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.
(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
5
created in 1964 with the acquiescence of the City of Okeechobee and
the County to provide 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 the Association beyond
.75 MGD, were unfruitful, the Association notified the City that
it would develop 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
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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.
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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
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.
(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 term of 30 years, beginning with the date of such
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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.
anniversary date of this grant
1 0
Within 60 days after the first
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
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.
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(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
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Franchise Agreement and such right of purchase is a condition
precedent to the taking effect of this grant to the Association.
The County's right of purchase under this section shall not be
exercised, unless otherwise consented to by the Association, for
a period of three years from the effective date of this ordinance,
or upon substantial completion of a water treatment facility,
whichever shall first occur. 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
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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
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 Yiealth and
safety purposes on a temporary basis.
(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
14
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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 water well 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
financing 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
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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 systefis within
close proximity to Lake Okeechobee was the driving 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
J44 i'lLf1146
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
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 time 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
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specific performance enforcing the provisions of this Franchise
Agreement.
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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
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
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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 be 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
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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 or
sewer services shall be rendered by the Association and no
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:
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(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
E &K 344 izE1155
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
25
26
:344 f!CE i I56
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.
(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
27
Et-f: .344 P. %E 1157
to pay system development charges on an installment basis with
interest over a period not to exceed 10 years. In the event that
system development charges shall not be paid as and when due, any
unpaid balance thereof and 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
on real property.
(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, BOORS 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.
R x .344 El E1
(3) An annual audit of the Association's books and records
shall be prepared by an independent Florida certified public
accounting firm 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 Association. Complaints shall be resolved within
28
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, rules and
regulations, rates and fees charged or imposed by the Association.
The 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
29
fib
Fc,-K 344 P,Cf1159
TB‘f.:ir, :344 1160
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
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 3.22. 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;
30
31
G r :344 ?Cf11E1
identifies and evaluates potential acquisitions or service
expansions; evaluates Association staffing; provides for detailed
mapping of system facilities; provides for hydraulic analysis or
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 plan 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 II,
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
32
F LK :344 P4CE1 2
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 section 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
::1,f, :344 PICE 1163
regulating the use of its streets, sidewalks, alleys, rights -of-
way and easements. The Association shall abide by all such
ordinances relative to its activities.
(D) This Franchise Agreement is not and shall not be
construed as a development agreement pursuant to the Florida Local
Government Development Agreement Act, Sections 163.3220- 163.3243,
Florida Statutes.
33
34
f L K 344 flc 1164
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 persona/ 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
r j_,K :344 T CF1 €S
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, nonappeaiauie
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 mandate certain actions or programs for local
governments or water and sewer utility providers may require
changes or modifications in some of the terms or conditions or
obligations under the franchise granted herein. Nothing contained
35
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; 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.
36
VA 344Flu Ifi 6
RA :344 pl.cf1ifJ
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 norm attdc:ild a5
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
o' day of April, 1993.
(SEAL)
ATTEST:
49;27272-1,/
Clerk)
37
BOARD OF COUNTY COMMISSIONERS
OKEECHOBEE COUNTY, FLORIDA
APPENDIX A
FORM OF ACCEPTANCE
B 344 ?Cf1168
i
/as.
iik.A.epLaiik.e is madc and ire?r i ntn th i g o �G day of
/4A4/G- 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 and conditions 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
6f rT
Rp 344 P t i i f 9
LE
OKEECHOBEE BEACH ASSOCIATION
WATER, INC., a Florida
corpora ion
By:-- 'Z t �l"�
President
STATE OF FLORIDA
COUNTY OF OKEECHOBEE
The foregoing Acceptance was acknowledged before me by L -tD
"674--AC.�'' 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 0 day of 04 -a
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-L.5 on this Z9 day of 1993.
(SEAL)
ATTEST:
Clerk
1
Zig' ti B. CORNER
1 1.7 1 uy C0MMIS310N CC 262005
Y' v= EXPIRES: Ninety 2S. 19®7
1 E,?;,;''' Bonded mAro Notary Pubic Und•ro 1 t
1
91(5nature of Notary Public
Name of Notary Public typed, printed
or stamped
My Commission Expires:
Bx344? 1i7O
APPENDIX B
SERVICE AREA
PCGK 344 Faf1171
4
3
EIIK :344 .17f1172
SERVICE AREA
ne0;nnina at the Township line hetween 'T'r7S and T3RS on the Martin Crmnty line proreed
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, T3SS, 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. Highway 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.
0
e t.. 4
ATTI: ST:
RE- SOLUTION OF THE MEMBERSHIP OF
OKEECHOBEE BEACH WATER ASSOCIATION.INC.,
APPROVING A WATER AND SEWER FRANCHISE AGREEMENT
WITH OXFECHOBFF, COUNTY. WHICH INCLUDES A PROVISION
FOR THE SALE FOR THE SALE OF ALL ASShJS,
BE IT KNOWN, that at a special meeting of the members of Okeechobee Beach Water
Association, Inc. "the Association held on April 26, 1993, after proper notice, a quorum
being present, it was resolved by membership, upon majority vote of members present:
RESOLVED, that the membership of Okeechobee Beach Water Association, Inc.
approves the Association entering into a franchise agreement with Okeechobee
County which will contain a provision allowing Okeechobee County to purchase all
of the assets of the Association at some time in the future.
IT IS FURTHER RESOLVED, that the Board of Directors of the Association shall
take the necessary steps to finalize a franchise agreement with Okeechobee County,
which agreement is to be executed by the President and Secretary of the Association.
_e_40
Verna Gabriel, Secretary
(id \i» isckorresp1obwa- nss.s ai
Dated this A day of April, 1993
OKEECHOBEE BEACH WATER SOCIATION,
BY
LELAND PEARCE, PRESIDENT
fR
Ef.A 444 rnf 11 4
N
cn
1
AL.
BE IT KNOWN, that at a special meeting of the Board of Directors of Okeechobee Beach
Water Association, Inc. "the Association held on April 26, 1993, a quorum being present,
it was resolved by Board of Directors, upon majority vote of directors present:
RESOLVED, that Okeechobee Beach Water Association, Inc. shall enter into a
franchise agreement with Okeechobee County in the form attached hereto.
IT IS FURTHER RESOLVED, that the franchise agreement with Okeechobee
County, shall executed by the President and Secretary of the Association.
Dated this day of April, 1993
OKEL-CHOBE BEACH A TE SSOCIATION,
B .ef
LELAND PEARCE, PRESIDENT
Verna Gabrie Secretary
dd\m isc \corresp \obw a- bdd.res
RESOLUTION OF THE BOARD OF DIRECTORS OF
OKEECHOBEE BEACH WATER ASSOCIATION,INC.
APPROVING A WATER AND SEWER FRANCHISE
AGREEMENT WITH OKEECHOBEF, COUNTY
E��K 4 P "cf 11 l.3