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1993-04-19 City's Status Report it I k STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS CITY OF OKEECHOBEE, ) ) Petitioner, ) vs . ) DOAH Case No. 92-4909GM ) DCA Docket No. 92-4701-1 DEPARTMENT OF COMMUNITY AFFAIRS, ) Respondent. ) and ) OKEECHOBEE COUNTY, ) Intervenor. ) . ) STATUS REPORT OF PETITIONER CITY OF OKEECHOBEE Petitioner City of Okeechobee, by and through its undersigned counsel, and pursuant to the hearing officer' s order of February 3, 1993, hereby files the following status report. In support of its status report the City states : 1 . On January 28 , 1993, the City provided Intervenor Okeechobee County with a settlement proposal which contained draft language which addressed one of the major issues in this proceeding -- the failure of the County' s comprehensive plan to accurately identify the City' s water and sewer geographic service area.' (A copy of counsel for the City' s January 28, 1993 correspondence to counsel for the County is attached to this report as Exhibit "A" . ) The City designated its water and sewer geographic service area in 1983 pursuant to Chapter 180, Florida Statutes . The legal description for the City' s water and sewer service area has been codified in Section 18-20 of the City Code since that time. 1 2 . On January 29, 1992, counsel for the County responded to the City' s proposal in a letter to counsel for the City. The County' s response did not specifically address the substance of the language contained in the City' s January 28th proposal but stated: " [T]he approach taken by the City does provide a positive basis upon which further settlement discussions may occur. . .At some point, the time and money spent preparing for an administrative hearing begins to be counter productive to an attempt to reach a settlement. . . [t]he County is willing to modify its objection to a continuance of the hearing scheduled for February in order to allow sufficient time to explore opportunities to settle the remaining issues . . .as soon as we have been able to formally obtain the continuance, we will attempt to schedule a meeting. . . (Emphasis supplied. ) (A copy of counsel for the County' s January 29 , 1993 correspondence to counsel for the City is attached to this report as Exhibit "B" . ) 3. Based upon counsel for the County' s January 29 , 1993 letter, the City agreed to release the County' s expert witnesses from complying with subpoena and orally authorized counsel for the County to inform said expert witnesses that their previously scheduled depositions had been cancelled by the City. The City further agreed to a Joint Motion for Continuance in order to accommodate further settlement negotiations between the parties . 4 . The parties stated in their Joint Motion that settlement negotiations were proceeding well at that time and that the parties desired to continue `working towards a settlement of their differences and an execution of a stipulated settlement agreement rather than proceeding to final hearing at that time. However, the undersigned counsel for the City must now report to the hearing 2 officer that he believes that the County has not followed through on either the representation made in the Joint Motion or the representation made in the County' s January 29, 1993 letter in which the County agreed to schedule the necessary meetings to accommodate further settlement negotiations . 5. On March 25, 1993, counsel for the City corresponded with counsel for the County in a continuing effort to encourage the County to resume settlement negotiations in advance of the April 19 , 1993 deadline for the filing of this status report. (A copy of counsel for the City' s March 25, 1993 letter to counsel for the County is attached to this report as Exhibit "C" . ) On April 2 , 1993, counsel for the County responded in writing stating that he had "attempted" to call the office of City Attorney but "received no answer" . (A copy of counsel for the County' s response to the City' s March 25, 1993 letter is attached to this report as Exhibit "Du . ) 6 . On April 6, 1993, the City' s engineers met with the County' s engineers at City Hall in order to discuss the inaccuracies in the County' s data and analysis relative to the existing water and sewer service areas of the City. At that meeting it was discussed and determined by those engineers in attendance that the City' s engineers had already provided the County and its engineers with the City' s existing water and sewer master plan documents and that counsel for the City had provided counsel for the County with the legal description of the City' s Chapter 180 water and sewer geographic service area which has been 3 codified in Section 18-20 of the City' s Code since 1983 . 7 . On April 7, 1993, counsel for the City telephoned counsel for the County in a further attempt to schedule the agreed upon and promised negotiating session at which the County would specifically address the substance of the language contained in the City' s January 28th proposal . During that telephone conversation, counsel for the County represented that he would contact counsel for the City by telephone and facsimile on April 15-16, 1993 in order to discuss the possibility of filing another Joint Status Report with the hearing officer and to provide the City with a specific response to the substance of the City' s proposal of January 28, 1993 . On April 7 , 1993, it was also reported in the Okeechobee News that the negotiations between the County and City concerning the creation of a joint utility may have broken down. (A copy of the April 7th news account and a conflicting account which ran on April 9th are attached to this report as Exhibit "E" . ) 8. On April 13, 1993, it was reported in the Okeechobee News that the County has scheduled a public hearing on April 29 , 1993 to consider entering into a franchise agreement with an association which currently provides only potable water services in Okeechobee County. The Association currently provides such water services pursuant to a 1985 agreement entered into with the City in which the Association is authorized to purchase water from the City and provide said City water to residents and businesses located within the City' s water service area. The Association' s contract with the City expires on October 1, 1994 . The newspaper account states : 4 " [T]he proposal states the association will pay the county 6 percent of the gross revenues from the sale of water and the provision of wastewater services to its customers within the geographic limits of Okeechobee County. . .The proposed construction timetable puts the water treatment plant into operation by October 1994 when the current agreement between the association and the city of Okeechobee expires . " (A copy of the April 13th news account is attached to this report as Exhibit "F" . ) 9 . A copy of the proposed franchise agreement is attached to this report as Exhibit "G" . The geographic area for water and sewer designated in Exhibit A of the proposed agreement between the County and the Association conflicts and overlaps with the City' s water and sewer geographic service area. The City believes, as it specifically proposed to the County on January 28, 1993, that: "The County and City should strive to avoid duplicative or competitive water and sewer utility service in a specified geographic area. Such duplicative and competitive services should be discouraged because of the obvious inefficiencies inherent in having two or more utilities provide the same service in the same territory. " See Exhibit "A" , Draft of City' s proposal submitted to County on January 28, 1993 . 10 . On April 19 , 1993 at 1 : 38 p.m. counsel for the County faxed counsel for the City for the City saying that he intended to immediately fax counsel for the City a suggested Joint Status Report for his review. Counsel for the City responded that although the City must respectfully reject the County' s extremely late invitation to execute the proposed status report, the City agree that is remains willing to negotiate with the County even 5 though it would also request the hearing officer to reschedule the final hearing. (A copy of counsel for the County' s April 19th letter and suggested status report, and the City' s letter of April 19th declining, are attached to this status report as Exhibit "H" ) . 11 . The County has failed to follow-through on its commitment expressed in the Joint Motion for Continuance to continue working towards a settlement of its differences and an execution of a stipulated settlement agreement rather than proceeding to final hearing. The County has also failed to follow-through on its commitment expressed in its January 29th letter in which the County agreed to schedule the necessary meetings to accommodate further settlement negotiations . The City' s proposal of January 28th still has not been responded to in substance by the County. The County has also failed to follow through on its promise to conduct said negotiations by telephone and fax on April 15-16 , 1993 . 12 . As a result of the County' s failure to follow-through on its many commitments, and as a further result of the decision the County has made to consider entering into a franchise agreement with a private provider which would create conflicting, overlapping, duplicative and inefficient water and sewer geographic service areas in Okeechobee County, the City must regretfully inform the hearing officer that at this time settlement does not seem possible and that a final hearing will be necessary to resolve this dispute. 6 13 . The City requests that the hearing officer reschedule the final hearing in the above-referenced case. The City of Okeechobee hereby offers to make the City Council Chambers available for the final hearing. Inquiry and confirmation by the DOAH Clerk or the hearing officer regarding the availability and reservation of the Council Chambers for the final hearing on the specific dates of the hearing officer' s choosing can be directed to Mr. John Drago, City Administrator. Mr. Drago ' s business address and telephone number are the same as those of the Council Chambers : 55 S . E. Third Avenue, Okeechobee, Florida 34974 . Mr. Drago may be contacted by telephone at ( 813) 763-3372 . 14 . The City believes that given the complexities of this case that 5 days will be required for the final hearing. The City further requests that the hearing officer give due consideration to the City' s Motion for Entry of An Order Rescheduling Final Hearing and Directing Parties to Conduct a Prehearing Conference and Enter into a Prehearing Stipulation which has been filed simultaneously with the filing of this status report. In its motion the City asks the hearing officer to require the parties to have a prehearing conference no later than 20 days before the rescheduled hearing. 15 . The undersigned counsel for the City will not be available to attend a final hearing in the months of May 1983, June 1983 or from July 1-11,- 1993 . As of the time of the filing of this status report, counsel for the City is available to attend a final hearing in this case on any 5 continuous days beginning on or after July 12 , 1993 . However, the undersigned is a sole practitioner 7 currently representing a number of clients before this tribunal who are either now parties to or may desire to become parties to other growth management cases which are currently pending before DOAH. In a number of these cases, the hearing officers may either originally schedule or reschedule the final hearings in those cases before the hearing officer enters his order rescheduling the final hearing in this case. In the event that any said original scheduling or rescheduling occurs before the hearing officer enters his order scheduling the final hearing in the instant case, the undersigned reserves the right to file a supplemental status report advising the hearing officer and counsel for the other parties of his availability for hearing in this case. Respectfully submitted on this 19th day of April, 1993 by: ":1\ 142(ibt 4 Michael Wm. Morell Attorney at Law 310 West College Avenue Tallahassee, Florida 32301 904/ 425-8300 and John R. Cook City Attorney City of Okeechobee 202 N.W. 5th Avenue Okeechobee, Florida 34972 813/ 467-0297 Counsel for City of Okeechobee 8 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the above and foregoing has been forwarded by U. S . Mail to the following on this 19th day of April, 1993 : John D. Cassels, Jr. Laura Ann McCall Law Offices of Cassels & McCall P.O. Box 968 Okeechobee, FL 34972 Karen Brodeen Assistant General Counsel Florida Department of Community Affairs 2740 Centerview Drive Tallahasse- , F orida 32399-2100 4)tiMg2.Mi chael Wm. Ml 9 MICHAEL WM. MORELL ATTORNEY AT LAW 310 WEST COLLEGE AVENUE ADMINISTRATIVE AND GOVERNMENTAL LAW TALLAHASSEE. FLORIDA 32301•1406 ALSO ADMITTED IN T..1 ENVIRONMENTAL AND LAND USE LAW DISTRICT OF COLUMM,A (904) 425•8300 (904) 425•8301 FACSIMILE January 28, 1993 VIA FACSIMILE TRANSMISSION John D. Cassels, Jr. Okeechobee County Attorney Cassels and McCall 400 N.W. Second Street P.O. Box 968 Okeechobee, Florida 34973 Re: City of Okeechobee vs . DCA, Respondent and Okeechobee County, Intervenor, DOAH Case No. (Okeechobee County Comprehensive Plan Compliance Proceedings Dear John: This letter is in response to your letter dated January 27 , 1993 which you faxed to me last night in furtherance of previous settlement correspondence between us dated January 14 , 19 and 25, 1993 . The letter also attempts to embody constructive ideas we have imparted to each other during various meetings and telephone conversations we have had. Let me again thank you for your thoughtful, thorough and "principled" negotiation efforts on behalf of your client throughout our settlement discussions . As a lawyer who is also representing a public sector client in these negotiations , I share your concern that the public 's interest would be furthered through settlement based on principles and agreements the City and County have advanced in recent weeks in both this case and in cooperative continuing efforts to explore the feasibility of the preferred utility authority approach. I also want to recognize again our mutual willingness to discuss and consider settlement perspectives advanced by each other. I believe it 'is fair to characterize the progress that has been made in our discussions to have been the result of principled agreement and compromises made by both sides . Therefore, I would hope that we can continue to focus on resolving our remaining differences by striving to attain a solution that advances the interests of both of our clients as opposed to any personal or subjective evaluation or assessment concerning a numerical offering, advancing, conceding or concluding of "positions" . Interests should be our focus, not positions . Exhibit "A" John D. Cassels January 28, 1993 Page Two Assuming that I am correctly interpreting your letters of January 25th and 27th to mean that the County concurs that the term "provision of service in unincorporated Okeechobee County" should be used consistently throughout the "alternatives" language which you offered and drafted, I agree with you that for purposes of "settlement" , the differences between our clients have been reduced to one -- the differing map, legal description or depiction of the City' s service area as reflected in the Craig A. Smith study and Section 18-20 of the City code. If we are unable to settle this case the issues to be decided at hearing will be those specified in the City' s petition including whether the Okeechobee County' s comprehensive plan is in compliance with Florida ' s Growth Management Act. I believe this position to be consistent with the qualification you made in your January 19th letter that our settlement negotiations are not admissible nor should they be deemed to be an expression of either the strengths or weaknesses of our respective cases . However, rather than focus on this possibility, I would like to suggest a new more positive approach to complete settlement that might be acceptable to both of our clients . The approach is not based on an "all or nothing" reference to either the Craig A Smith maps or Section 18-20 of the City Code, but an inclusion of both depictions or both maps in a manner which recognizes your January 27th description of the County' s interest that its plan "accurately reflecting existing service areas" for the water and sewer. In response to the County' s interest and consistent with other communication that occurred during what I view as a very positive telephone conversation between us earlier this morning, I have "roughed" a draft of suggested revisions to both the data and analysis and Policy S3 . 2 . I look forward to hearing from you shortly. With best personal regards, I am Sincerely, Wei910/ Michael Wm. Morell MWM:mm Enclosures cc. John Cook, City Attorney for City_of Okeechobee CT [3 11. \ DRAFT OF ADDITIONAL LANGUAGE TO COUNTY WATER AND SEWER ELEMENT D&A TO BE INSERTED IN APPROPRIATE PLACES IN TEXT FOR POTABLE WATER, SANITARY SEWER AND/OR ISSUES AND RECOMMENDATION SECTIONS [NOTE: the language included in brackets, " [ ] " and the suggested language that has been bolded is merely inserted for explanatory purposes and purposes which the City thinks fairly highlight and emphasize verbal agreement and the principled approach that both the City and the County are exploring in an effort to settle the case. ] The City' s Potable Water and Sanitary Sewer Service Area The Growth Management Act requires that the County' s planning efforts address ways to provide for future potable water and sanitary sewer requirements for the unincorporated area. [paraphrased from the first sentence of §163 . 3177 ( 6 ) (c) ] The Act requires that the County accomplish this through the adoption of a sanitary sewer and potable water element which describes "needs, " "problems, and the "general facilities" that will be required for the solution of the needs and problems . [paraphrased from the first and third sentences of Section 163 . 3177 ( 6 ) (c) ] The Act also requires an intergovernmental coordination element showing intergovernmental "relationships" and stating "principles and guidelines" to be used in the accomplishment of coordination of the County' s plan with the plan of the City of Okeechobee to the extent that the City provides water and sewer services to portions of the unincorporated area even though the City does not have regulatory authority over the use of land in the unincorporated area. [paraphrased from the first sentence of §163 . 3177 ( 6) (d) ] . The issue surrounding those portions of the unincorporated area of the county which are currently located within City' s sanitary sewer and potable water service area presents planning challenges and opportunities for both the County and the City. Both jurisdictions are required to consider the orderly and cost efficient provision of potable water and sanitary sewer services which address their needs, problems, general facilities, and desired intergovernmental relationships, principles and guidelines . .The County and City should strive to avoid duplicative or competitive water and sewer utility service in a specified geographic area. Such duplicative and competitive services should be discouraged because of the obvious inefficiencies inherent in having two or more utilities provide the same service in the same territory. Such duplication and competition is wasteful, inefficient, unwarranted and not in the best interest of the public. E L-A In Section 18-1 of the City Code the City has declared its intention to provide water and/or sewer service to the incorporated and unincorporated areas of the county as requested on a uniform and nondiscriminatory basis dependent on service capacity and cost effectiveness . In 19 , the City adopted an ordinance now codified at Section 18-20 of the City Code which includes a legal description for a "zone or area" pursuant to Section 180 . 02, Florida Statutes, which authorizes the City to extend and execute all of its corporate powers applicable under Chapter 180, F. S. outside of its corporate limits into unincorporated areas of the county included within the legal description. [Paraphrased from first sentence of §180 . 02 (2 ) , F.S . ] Map depicts the adopted legal description of the City' s Chapter 180 service zone or area and also indicates portions of the unincorporated area of the County included within the service zone or area. In addition to this Chapter 180 service zone or area (and contained wholly within the Chapter 180 service zone or area) the City also has an existing service area for the City' s water and sewer system which depicts existing City potable water and sanitary sewer infrastructure which is either already in place or is reasonably capable of being put in place within the planning horizon. Map depicts the City' s existing service area. [The County' s engineers and the City' s engineers would sit down to ensure that the County' s plan map would accurately reflect the true nature and extent of the City' s existing potable water and sewer service area. ] The portion of the unincorporated area of Okeechobee County that currently lie outside of the City' s existing service area yet within the City' s Chapter 180 service zone or area are depicted on Map and reflect what could be described as the City' s Future Service Territory. Consistent with the intention expressed in Section 18-1 of the City Code and the City' s authorization to have adopted such intention pursuant to Chapter 180, F.S. , the City desires to avail itself of the provisions and benefits of Chapter 180 within such this future service territory even though the City' s capital improvement element does not currently provide for the provision of potable water and sewer service to all of the unincorporated areas located within the Future Service Territory. In the event that the County and City are not successful in agreeing to the preferred alternative of a utility authority, the County intends to consider alternatives other than an agreed upon regional utility authority to meet its sanitary sewer and potable water planning responsibilities in the unincorporated area. In pursuing such alternatives potential intergovernmental conflict over competing and overlapping City and County service areas in the unincorporate area may arise. In the event such potential conflict does in fact arise, the County and City should attempt to negotiate an interlocal agreement so that duplicative or competitive water and sewer utility service areas in a specified geographic area might be avoided. DRAFT OF ADDITIONAL SENTENCE TO BE ADDED TO POLICY S3 .2 . . . In the event that the County and City determine that the utility authority is not economically feasible, the County and City should attempt to negotiate an interlocal agreement so that intergovernmental conflicts over duplicative, competing and overlapping County and City service areas in the unincorporated area of Okeechobee County are avoided. • 01 '29/93 15:52 $813 763 1031 CASSELS & McCALL Qt002/002 Board of County Commissioners(fsEA15'\' County Attorney Okeechobee County -1,+, 1917 � Cassels & McCall- #r•hole°a� 209 N.Wf 4th Avenue OKEECHOBEE, FLORIDA 34972 January 29, 1993 (813)467-6900•Fax 1763-1031 Michael Wm. Morell, Esquire 310 West College Avenue Tallahassee, Florida 32301-1406 Re: Okeechobee County vs. City of Okeechobee File No. 92-7202 Dear Mike: Confirming our telephone conference of this date, we are in receipt of your letter dated January 28, 1993 regarding the continued settlement negotiations. Although we cannot carte blanc accept all of the propositions contained in your letter, we do feel that the approach taken by the City does provide a positive basis upon which further settlement discussions may occur. At some point, the time and money spent preparing for the administrative hearing begins to be counter productive to an attempt to reach a settlement. We feel that we are at such a point. Accordingly, the County is willing to modify its objection to a continuance of the hearing scheduled for February in order to allow sufficient time to explore opportunities to settle the remaining issues. As discussed, we would join in a stipulation to continue the hearing to be scheduled on the first available date after April 15, 1993. Given the complexities of this case, I.would imagine that the time allocation would remain the same. Based upon our understanding, we are suspending the depositions scheduled beginning on February 1, 1993. As soon as we have been able to formally obtain the continuance, we will attempt to . schedule a meeting that we can examine the water and sewer maps in greater detail. With kindest regards, I am Sincerely, JO ' D. CASSELS, JR. JDC/jd • Exhibit "B" Susan B.Hughes Tommy Close Clif Betts,Jr. Stephen Porter Charles W. Harvey District 1 District 2 District 3 District 4 District 5 County Administrator MICHAEL WM. MORELL ATTORNEY AT LAW 310 WEST COLLEGE AVENUE ADMINISTRATIVE AND GOVERNMENTAL LAW TALLAHASSEE, FLORIDA 3 2301-14 06 ALSO ADMITTED IN THE ENVIRONMENTAL AND LAND USE LAW DISTRICT OE COLUMBIA (904) 425•8300 (904) 425.8301 FACSIMILE March 25, 1993 VIA FACSIMILE TRANSMISSION 813/763-1031 and U. S . Mail John D. Cassels, Jr. Okeechobee County Attorney Cassels and McCall 400 N.W. Second Street P.O. Box 968 Okeechobee, Florida 34973 FAX 813/763-1031 Re: City of Okeechobee vs . DCA, Respondent and Okeechobee County, Intervenor, DOAH Case No. 92-4909GM (Okeechobee County Comprehensive Plan Compliance Proceedings Dear John: The purpose of this letter is to express to you my surprise and concern that Okeechobee County has not followed through on its previously expressed commitment to pursue settlement negotiations in the above-referenced case. In your January 29, 1993 letter the County made the following statements concerning the settlement approach suggested by the City in its letter to the County dated January 28, 1993: " [T]he approach taken by the City does provide a positive basis upon which further settlement discussions may occur. . .At some point, the time and money spent preparing for an administrative hearing begins to be counter productive to an attempt to reach a settlement . . [t]he County is willing to modify its objection to a continuance of the hearing scheduled for February in order to allow sufficient time to explore opportunities to settle the remaining issues . . .as soon as we have been able to formally obtain the continuance, we will attempt to schedule a.meeting. . . (Emphasis added. ) Based on the County's representations made in this letter, the City, in good faith, agreed to cancel depositions of the County' s experts even though it was necessary for the City to incur considerable expense in serving notice of such depositions by subpoena . The County also agreed to `cancel its previously scheduled depositions of City Councilmen, which the City had voluntarily made available so that the County would not need to incur the expense of service of process . Exhibit "C" John Cassels March 25, 1993 Page Two After you and I agreed that the City would handle the drafting, filing and paperwork requesting an agreed upon continuance so that we could pursue settlement, the City moved expeditiously and such a continuance was granted by Hearing Officer Sartin on February 3 , 1993 . In his order the hearing officer requested that we file a report on or before April 19 , 1993 informing him of our progress and if a final hearing will be necessary. When the County did not follow through on its representation "to schedule a meeting" , I telephoned you on or about March 3 , 1993 . During our conversation on that day you apologized for the delay in scheduling the meeting, you explained that the delay was attributable to the County not having sufficient time to coordinate with its engineers, you agreed that the City and County should continue to pursue successful settlement in the case, and you promised to contact City Attorney John Cooks as soon as possible to schedule a meeting for the City and County' s engineers to examine the water and sewer maps in greater detail . We agreed that one additional meeting would be necessary in which I would come to Okeechobee so that we could finalize the language of a settlement agreement and present it to our respective clients for their review and approval in sufficient time to file a successful status report with the hearing officer on April 19 , 1993 . After John Cook informed me that you did not contact him to schedule a meeting, I called your office on or about March 18th and left a message to have you return my call . When you did not return my call I spoke with County Planning and Zoning Director Bill Royce on March 23 , 1993 and urged him to talk to you about scheduling the agreed upon settlement discussions . Mr. Royce agreed to do so and also expressed his support for expediting conclusion of these settlement discussions . John, I am now concerned that there may be insufficient time to conclude our negotiations, present the results to our clients for approval and file an agreed upon status report with the hearing officer before April 19, 1993 . There certainly is insufficient time in which to conduct the two settlement we agreed would be necessary. The City Council has only one meeting scheduled (April 6, 1993) before the status report is due on April 19th. The next Council meeting after that will be April 20, 1993 . John, I assume that the County is still interested in settling this case and I hope that the repeated delay in the County scheduling of settlement discussions can somehow be explained in terms of how busy county officials, staff and their attorneys have been. However, if I do not hear from you immediately and the City and County are unable to schedule and conclude at least one successful settlement discussion meeting, I will have to advise my John Cassels March 25, 1993 Page Three client accordingly in sufficient enough time before the April 19th deadline in order for the City to file a status report with Hearing Officer Sartin which fully protects and preserves the City' s interests . Hopefully this will be unnecessary and the City and County can continue to file agreed upon status reports to the hearing officer regarding the status of negotiations and the need for scheduling further formal proceedings in this matter. Therefore, it is imperative that we schedule a meeting as soon as possible if we are to successfully conduct and conclude negotiations, report to our clients and conclude this litigation in an intergovernmentally cooperative matter as has been suggested by the City and previously acknowledged by the County. Although I will be out of the office from this afternoon at 1 : 00 p.m. until Monday morning, March 29, 1993 (John Cook is also out of the office until Monday morning) , both John and I look forward to hearing from you as soon as possible. If our three schedules can be coordinated I expect to be in Okeechobee sometime between April 2nd and April 6th and would be willing to conduct settlement negotiations at that time. Sincerely, NuladollAilag Michael Wm. Morell MWM:mm cc .' John Cook, City Attorney (VIA FAX) Karen Brodeen, DCA Assistant General Counsel (VIA FAX) JOHN D. CASSELS, JR LAURA ANN MCCALL LAW OFFICE OF CASSELS & McCALL 400 NW SECOND STREET • POST OFFICE BOX 988 • OKEECHOBEE FLORIDA 34972 • TELEPHONE 813.763.3131 • FAX 763.1031 I , March 30, 1993 Michael Wm. Morell, Esquire 310 West College Avenue Tallahassee, Florida 32301-1406 RE: Okeechobee County vs. City of Okeechobee Our File No: 7226 Dear Mike: Thank you for your letter of March 25, 1993. At the outset, whenever I am provided with a three page letter which abstracts and highlights portions of my previous correspondence, I can only surmise that the letter is written more for the benefit of a third party than for mine. Be that as it may, I will attempt to briefly and concisely respond. I wrote in my letter dated January 28, 1993 the approach taken by the City does provide a positive basis upon which further settlement discussions may occur. This has not changed. As I indicated previously, the engineers should meet for the purposes of determining whether there are any inaccuracies or oversights in the County's data and analysis relative to existing water and sewer service areas of the City. I believe that this meeting can and should occur shortly. After my telephone conversation with you on March 3rd, I was informed that the City -Manager did not see much benefit in a meeting of the engineers. Naturally, I was taken back by this communication but attempted to call John Cook nonetheless. Unfortunately, when I attempted to call his office I received no answer. Mike, be mindful that it is also a local call from John's office to mine, and it is unfortunate that you felt it necessary to construct a letter which implies that the county has somehow been less diligent than the City. 7226-2953 Exhibit "D" Page 2 Mike Morell By the time you have received this letter, I will again have attempted to call John to schedule a time when the engineers can meet. Hopefully, my information is inaccurate and indeed, the City Manager wishes to meet as we previously discussed. With kindest regards, I am Sincerely, -/ J e N D. CASSELS, JR. JDC/jp 7226-2953 CASSELS & MCCALL r`,,,--;'•>, X i.i.` ..t 4•.:A" 4,�'',# .. - 'M. fir.# . ., t. �• .� }* -'4' - • :-.1't::::‘,.;*r4 yT�YNI 6.,$;.r:, ,-. it-r••tt `4s ;14, 1 rt.td '; ••`,.. _ ..4. ~ ,• a^ t ; .'n��d_,q �' 5 w A, A;,�:V'. .f� i t:..!,ic ,�* L- {•'zr.,4 ,n4 'J'`?*.1.4. 0,.,.ii.,:-.,,,44..,. .,�' a rh,ti� .4.- e ". `r ,A �j'.. 4 ) f:;f4 •1. ..P.b` ,4 :le,}y'"'�3`�A. •:rl MICHAEL WM. MORRELL o The D ail • 08/ 11/93 310 WEST COLLEGE AVE m H TALLAHASSEE FL 32301-1406 x .w okeechobee News April 7, 1993 Vol. 83 No. 97 107 S.W. 17th St. Suite D, Okeechobee, Fla. 34974 - (813) 763-3134 issue ma be dead in the water Utility may By MATT PEREZ where we are at this point with the let- given the maximum amount the county Mr. Rivera said the county's decision City of Okeechobee's optimism ter is not quite in the direction I- would be willing to put into a utility was fair, based on the information it about forming a united utility authority thought we were."said Mayor Kirk. - authority. had from the city and based on what with Okeechobee County withered The mayor, Okeechobee County "I am embarrassed to tell you it was the county has available in its own cof- Tuesday night with a last minute coun- Commission Chairman Charles Harvey $2 million," he said, adding he would fers. ty proposal issued just before the city and Jack Coker of Okeechobee Beach consider ceasing any further negotia- The county has been willing to pay council meeting. Water Association have been dis- tions if the council requested it. for a$75,000 appraisal of the city utili- The Okeechobee City Council was cussing a united utility authority for "I think It's a long way from where ty system, which some have estimated 1 prepared to move ahead on several months. we were going to end up," Councilman at about $7 million in equity as a gen- I public utilities items on its agenda. and "I was told there would need to be a Dowling Watford said. eral working figure. 10 minutes before the meeting started, maximum and a minimum dollars that County Attorney John Cassels and "The county wants to form the Mayor Jim Kirk learned the county had the two sides would need to commit Finance Director David Rivera after the authority."Mr.Rivera said. set a ceiling of $2 million to fund the to," the mayor said. meeting said the county was just not Is the united utility authority a dead utility authority. About 10 minutes before the meet- getting the assurances it needed about issue? "Where we were a month ago and ing started, Mayor Kirk said, he was where funding would be spent. "It appears to be," said Mr. Cassels. County officials want to resume utility authority talks with city By TWILA VALENTINE ty would invest as seed money to get order to have more time to look at it all. both of us" said Commissioner Tommy County officials will try to get dis- the process moving. He said the council said Tuesday Close, referring to both the city and the cussions about a possible utility The city councilmen were to be night the $2 million was insufficient county. "It's a loss for both of us authority with the city back on track. polled to see what was the least and they could not delay their activities because we don't have water and sew- The process was sidetracked Tues- amount they would take for their sys- under the consent order. er." day night through a series of misun- tem, less the debt on it. He said they did not provide an City Councilman Mike O'Connor, a derstandings between city officials and At the meeting on Tuesday night, alternate number for the county to look member of the audience, suggested staff, and county staff members. Mr. Rivera said the city council did not at. so there would be something to that five city councilmen and five corn- The Okeechobee County Board of provide a number the council would be negotiate about or talk about. missioners with their respective attor- Commissioners concluded a long dis- willing to accept as the net value for "At this point, the city has indicated neys and administrators should meet. cussion on Thursday and instructed their system. they are not interested in this concept," He felt they were the only players County Administrator Chris Chinault, The county asked the city to consid- he said. "We need some direction of who needed to be involved in it. to contact City Administrator John er a slowdown so if the two entities what other steps to take to try to pull 'Both sides need to bone up and do Drago, and put together a workshop were going to go into some type of a this back into a workable situation and what you have to do. But do some- which would be attended by the mem- utility partnership arrangement in the try to continue to work on it." thing. To do nothing is almost sinful.' bers of the county commission and the near future, the county should be Commissioner Steve Porter said he said Mr. O'Connor. city council. aware of what they were doing, how was disappointed in the $2 million fig- "We've got to get water and sewer Finance Director David Rivera much they are spending, the process ure and that he had never been con- out in the county and make it available reported to the county board on the they are going to, and how does it fit tacted and polled on it. at an affordable price," said Mr. Betts. results of the Tuesday night meeting of with how the county would like to see "Without the proper appraisal of the "If we're going to do it, let's have our the city council. the system developed, Mr. Rivera said. system, no figure should have been workshop meeting and try it one more The offer, made on behalf of the "Their concern that they relayed to mentioned," he said. "I don't blame the time." county at that meeting, was the result me at the meeting last Friday is that city for turning this down." The board then instructed Mr. Chin- of a meeting on Friday, April 2, they are under a consent order from Following a short discussion, Mr. ault to contact the city administrator between Mayor Jim Kirk, Chairman DER relative to their water system and Porter said based on the story in the and set up a workshop meeting for Harvey and their respective staff mem- they need to move ahead," Mr. Rivera newspaper he thought the $2 million both governing bodies. bers, Mr. Rivera said. said. would be the maximum the county Mr. Harvey suggested using the Following that meeting, staff mem- He said he offered to add the county would contribute. auditorium at the HRS building on bers were to poll their respective voice and speak to South Florida Water "I understood the $2 million to be Northwest Ninth Avenue as the two boards. Management District officials about the seed money to get it started," said groups had done in the past. The county commissioners were to approaching DER to see about getting Commissioner Clif Betts,Jr. Mr. Chinault is to report back at the be asked what the maximum the coun- some additional time on the consent "It's going to continue to cripple us, next meeting on April 22. ..-,-74-a-rr'rrty ,.'".'I.-...., ...r rrr-^•'Trr--.•'• 'F'T^P' T''l' '—tT3TT TN^"''''++,ww"+v s.O,i.,,--. +,.+. naRS.Tw-rxe"-aws,e %n'^+"^!+y: ,. w•-.�+rr _ .. _ .. ., _ �.li . fr.,t.),,, •1 : „. „.pf „. fAz), .,., r , i. 1 . 0, t, 1 , .) ( I f v Ff e) , • et i C C e t . . Li7f3 • 11I c'HAEL W11 . 1IORRELL Th e 310 WEST COLLEGE HVE 0s,/ 11 1y 3 THLLHHISSFE FL 32301-1406 Okeechobee April 13, 1993 Vol. 83 No. 103 107 S.W. 17th St. Suite D, Okeechobee, Fla. 34974 (813) 763-3134 . w Beach water association seeks franchise agreement H By TWILA VALENTINE ` geographic limits of Okeechobee Coun- at ion and the city of Okeechobee from all other funds of the association. ? x A public hearing is scheduled for ty.The geographic area is designated in expires. The association will have an annual w 7:30 p.m. Thursday, April 29 on a 30- the agreement due to the fact that the This section of the proposed agree- audit of its books and records by an year franchise agreement between association also services residents in ment calls for plans to be submitted by independent Florida certified public Okeechobee County and the Okee- the Glades County subdivision of the association to the county to provide accounting firm and the audit report chobee Beach Water Association, Inc. Buckhead Ridge. wastewater services. These plans are shall be delivered to the county. The Okeechobee County Board of According to the proposed agree- due within one year of the completion Within three years after the effective Commissioners were given a draft of ment, the county has the right and of the water treatment plant. Both the date of the franchise agreement, the the proposed agreement during their option, if the association should decide county and the association will partici- association shall adopt a master plan regular meeting on April 8. to sell the system, to elect to purchase pate in the development of the plan. which identifies current customers, The proposed agreement grants to or otherwise acquire the water system The rates and fees will be set by the projects and future customers; profiles the not-for-profit corporation the non- and the sewer system. The purchase association and if they are to be customers as to residential, commer- exclusive right to construct, maintain would be finalized within 180 days of revised, it will be done following a pub- cial or industrial; reviews and invento- and operate water treatment facilities receiving notice from the association of llc hearing in which all the users of the ries all existing infrastructure and and lines and wastewater treatment an intention to sell the systems. The system have the opportunity to be treatment facilities within the service facilities and collection and distribution purchase price shall be one mutually heard concerning the proposed rates. area; identifies a capital improvement lines within the designated service agreed upon by the association and the Notice of the public hearing and the program for the association: reviews all area. county, the proposed agreement states. proposed schedule of fees will be pub- current permits and compare existing To compensate the county for the The county proposed to pay no more lished at least`20 days before the date regulations to projected regulations; as • cost of administration, supervision and than the amount of any outstanding of the hearing. well as many other planning docu- inspection, and for the use of county- indebtedness plus$100 additional con- The association may levy and collect ments. • owned lands, the proposal states the sideration. system development charges for both Construction or expansion by the • association will pay the county 6 per- The proposed construction timetable the water system and the sewer sys- association shall be according to and cent of the gross revenues from the sale puts the water treatment plant into tern, for capital improvements and debt consistent with the county's compre- of water and the provision of wastewa- operation by October 1994 when the service on such capital improvements. hensive plan and in accordance with ter services to its customers within the current agreement between the associ- These funds shall be segregated the land development regulations. .I ` , 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 SEVERABILITY; 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. r. "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 EXHIBIT "G" • e 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, easement 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. • 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 pri1ate 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. 4 (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 tile 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 It 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 water within the Service Area to the County, fits 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 Ie 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 thei 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 • 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 assign , 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. 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 • 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 sudh 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. (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 13 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 water1well 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 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 1 G 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 specific performance enforcing the provisions of this Franchise Agreement. • • 16 f Of • 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 1 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 ; I 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. A (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 .05. 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 ,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 ni 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, i 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 (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 • 1 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. (Dl 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. r (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 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. 26 (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.i ; I 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 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, 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 1 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 a,nd 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 .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 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 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 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 31 regulating the use of it. •. ::;:Ls , sidewalks, alleys, rights-of- way and easements . The Associate i shall abide by all such ordinances relative to i' activities. (D) This Franchi Agreemei: 3 ' not and shall not be construed -1:: a devel pr it agreement pursuant to the Florida Local Government Developm greement Act, Sections 163 . 3220-163 . 3243 , Florida Statutes. 32 • . .-,,.. , .. •.... .:r�....- is .7-_ -^C, . ... '.'-T-- ,'i -. 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 judyment 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 34 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 r 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 . • BOARD OF ;COUNTY COMMISSIONERS OKEECHgBEE COUNTY, FLORIDA (SEAL)- By: Chairman ATTEST: Clerk • • 36 I. 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") . W I T N E S B E T H 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 andJconditions 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- excllisive 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. OKEECHOBEE BEACH ASSOCIATION WATER, INC. , a Florida corporation By: • Witness President Witness A-1 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 . Signature of Notary Public Name of Notary Public typed, printed or stamped My Commission Expires: • 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 ordinances No. 93- , on this day of 1993 . (SEAL) ATTEST: Clerk • A-2 }SER 10E 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. 1-liohway 441 from the Okeechobee City limits south to the intersection of State Road 73 and those parcels albtig 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 Palen Tillage Ranch, iecoided in Plat Book 6, pages 34 and 35, Public Records of Okeechobee County, Florida: 04/19/93 13:40 '$813 763 1031 CASSIi1S & McCALI. 423004 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS CITY OF OKEECHOBEE, ) ) Petitioner, ) ) vs. ) ) DEPARTMENT OF COMMUNITY AFFAIRS, ) DOAH Case No. 92-4909GM ) Respondent. ) ) and ) ) OKEECHOBEE COUNTY, ) ) Intervenor. ) ) REPORT ON CASE STATUS COMES NOW, CITY OF OKEECHOBEE, as Petitioner, and OKEECHOBEE COUNTY, as Intervenor and files this report on Case Status pursuant to Order of Hearing Officer, dated February 3, 1993 and would show as follows: 1. THAT settlement discussions have not yet resulted in a conclusion of the issues in contention. 2. THAT the parties feel that rescheduling the Administrataive Hearing at this time would be counter-productive and wish an additiona130 days within which to attempt a final settlement. 3. THAT the Department of Community Affairs has expressed no objection to continued settlement discussions and the request contained in this report. WHEREFORE, the CITY OF OKEECHOBEE,as Petitioner and OKEECHOBEE 7202-3342 04/19/93 13:41 '$813 763 1031 CASSELS & McCALL _ Zoo. COUNTY, as Intervenor, moves the Hearing officer to permit continued settlement discussion for a period of 30 days. Law Offices of CASSELS & MCCALL BY: O D. CASSELS, JR. i torney for Intervenor 400 N.W. Second Street P.O. Box 968 Okeechobee, FL 34973 and MICHAEL WM. MORRELL Attorney at Law 310 West College Avenue Tallahassee, FL 32301-1406 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing REPORT ON CASE STATUS was furnished by U.S. Mail and facsimile, this 19th day of April to : Division of Administrative Hearings 1230 Apalachee Parkway The DeSote Building Tallahassee, FL 32399-1550 Karen,Brodeen Assistant General Counsel Florida Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 John R. Cook City Attorney City of Okeechobee 202 N.W. 5th Avenue Okeechobee, FL 34972 7202-3342 04 /19/93 14:02 $813 763 1031 CASSELS & McCALL Z00 I HEREBY CERTIFY that an original and one copy of the foregoing REPORT ON CASE STATUS was furnished by U.S. Mail and by facsimile, this 19th day of April, 1993 to Larry J. Sartin,Hearing Officer,Division of Administrative Hearings,The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, FL 32399-1550. "J e N D. CASSELS, . • 7202-3342 MICHAEL WM. MORELL ATTORNEY AT LAW 310 WEST COLLEGE AVENUE ADMINISTRATIVE AND GOVERNMENTAL LAW TALLAHASSEE, FLORIDA 32301-1406 ALSO ADMITTED IN THE ENVIRONMENTAL AND LAND USE LAW DISTRICT OF COLUMBIA (904) 425-8300 (904) 425-8301 FACSIMILE April 19, 1993 VIA FACSIMILE and U.S . MAIL John D. Cassels, Jr. Okeechobee County Attorney Cassels and McCall 400 N.W. Second Street P.O. Box 968 Okeechobee, Florida 34973 FAX 813/763-1031 Karen Brodeen Assistant General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Re: City of Okeechobee vs . DCA, Respondent and Okeechobee County, Intervenor, DOAH Case No. (Okeechobee County Comprehensive Plan Compliance Proceedings Dear John and Karen: This letter is in response to: ( 1) my obligation under DOAH Rule 60Q-2 . 016 ( 2 ) to communicate with all counsel of record prior to filing a motion, and (2) County Attorney John Cassels ' letter to me and suggested draft of a joint proposed status report which he faxed to my office at 1 : 38 p.m. today. (Karen, a copy of Cassel ' s letter and suggested draft status report are attached to this letter for your convenience. ) DOAH Rule 60Q-2 .016 DOAH Rule 60Q-2 . 016 (2 ) , Florida Administrative Code, requires that motions shall include a statement that the movant has conferred with all other parties of record and shall state as to each party whether the party has any objection to the motion. Enclosed please find a draft of Petitioner City of Okeechobee ' s Motion for Entry of an Order Rescheduling Final Hearing and Directing Parties to Conduct`a Prehearing Conference and Enter into a Prehearing Stipulation. I would appreciate it if you would each contact me immediately as to whether you have any objection to the motion which I intend to file today at DOAH. i John Cassels Karen Brodeen April 19, 1993 Page Two Response to Counsel for County' s April 19, 1993 Letter and Suggested Draft a Proposed Joint Status Report. For reasons stated in the Status Report of Petitioner City of Okeechobee which the City unilaterally intends on filing before 5 : 00 p.m. today, on behalf of the City I must respectfully reject the County' s extremely late invitation to execute the proposed status report. Accordingly, I suggest that the County file its own status report with the hearing officer. However, please do not consider my client' s reluctance to enter into the County' s proposed status report as a signal that further negotiation would not be fruitful . The City has maintained from the beginning of this litigation that negotiation would be helpful . The difficulty has been in getting the County to negotiate since January 28, 1993 . The City has been willing, and remains willing, to meet and negotiate with the County. This willingness to negotiate is also demonstrated in Paragraph 3 .C. ( 1 . ) of the City' s motion for an order directing the parties to conduct a prehearing conference. Although the City is asking the hearing officer to reschedule the hearing, in its motion the City will request the hearing officer to require the parties to have a prehearing conference to discuss the possibility of settlement no later than 20 days before the date of the rescheduled final hearing. This should allow more than sufficient time for the County to come to the negotiating table in good faith rather than continue the course of action it has pursued since January 28, 1993 . With best personal regards, I am Sincerely, U&L(t1 if Michael Wm. Morell MWM:mm Enclosures cc. John Cook, City Attorney for City of Okeechobee