Litigation-Okee.Beach Water v. CityIN THE CIRCUIT COURT FOR OKEECHOBEE COUNTY, FLORIDA
OKEECHOBEE BEACH WATER
ASSOCIATION, INC., CASE NO: 93 -555 CA
Plaintiff,
vs.
CITY OF OKEECHOBEE, FLORIDA,
Defendant.
AFFIDAVIT OF L.C. FORTNER, JR. IN SUPPORT OF PLAINTIFF'S
MOTION FOR PARTIAL SUMMARY JUDGMENT
STATE OF FLORIDA
COUNTY OF OKEECHOBEE
BEFORE ME, the undersigned Notary Public, personally appeared L.C. FORTNER,
JR. ( "Affiant "), whose legal name is LANDON C. FORTNER, JR., and who upon
affirmation, stated that the following facts are true:
1. Affiant is over 18 years of age and competent to affirm statements.
2. Affiant has personal knowledge of the facts stated herein.
3. Affiant is and has been employed by Okeechobee Beach Water Association,
Inc. ( "OBWA ") as Superintendent, responsible for the day -to -day management and operation
of OBWA since April 8, 1991.
4. Prior to employment with OBWA, Affiant worked as a director
(superintendent) of public utilities for the City of Okeechobee ( "CITY") from approximately
August 1964 until March 1991. As director (superintendent), part of Affiant's
responsibilities included the day -to -day management and operation of the potable water
system owned by CITY.
5. Affiant has attended all of the meetings of the Board of Directors of OBWA
since Affiant has been employed by OBWA. Affiant has prepared the minutes of all of the
meetings of the Board of Directors of OBWA since April 25, 1991. Attached as Exhibit A
is a true copy of portions of the minutes and resolutions of the meeting of the Board of
5 \0I3 \CITY\FORTNER.AFF 1
Directors conducted on June 13, 1991, as they pertain to decisions of the Board of Directors
to build a water treatment plant to serve the members of OBWA.
6. Attached hereto as Exhibit B is a true and accurate copy of the deed to the
land OBWA intends to construct a well field upon.
7. Affiant assisted in the negotiation of an option granted by the trustees of the
S. J. Davis Family Trust to OBWA for the purchase of the following described real property:
The West 400 feet of the North 1050 feet of the East 1/2 of the East 1/2 of
the Northwest 1/4 of Section 32, Township 37 South, Range 35 East,
in Okeechobee County. The Board of Directors of OBWA obtained the option to purchase
for the purpose constructing upon it the water treatment plant OBWA intends to build.
8. Affiant negotiated a contract, on behalf of OBWA, with Lindahl, Browning,
Ferraro and Associates, an engineering firm, for the preparation of engineering plans to
construct a 1.5 million gallon water treatment plant, well field and associated facilities and
structures. Affiant has personally inspected the completed plans.
9. Affiant assisted in the completion of an application for financing of the OBWA
water plant project by the Farmers Horne Administration. Attached hereto as Exhibit C
is a copy of the financing commitment for the project from the Farmer's Home
Administration.
10. Affiant assisted in the completion of an application by OBWA for a water
consumptive use permit from the South Florida Water Management District ( "the Water
Management District "). The original permit application described a service area which
followed a boundary line established and memorialized as early as 1970 by OBWA and CITY
in a series of bulk water sales agreements. Attached to OBWA's Motion For Partial
Summary Judgment as Exhibit A is a drawing showing the service area described in OBWA's
application for a water consumptive use permit. The description of OBWA's service area
in the original application included not only existing OBWA members, but also future
members.
11. Affiant was the director of public works for CITY in 1976, and assisted in the
preparation of an application made that year by CITY to modify the existing water
consumptive use permit issued to CITY by the Water Management District. In applying for
the modification, CITY described a service area which included, in part, the area served by
OBWA since 1965. Attached to OBWA's Motion For Partial Summary Judgment as Exhibit
5 \OB \CITY\FOR'INER.AI F 2
•
B is a drawing showing the service area described by CITY in its application for
modification of its water consumptive use permit.
12. In processing OBWA's application for a water consumptive use permit, the
Water Management District advised OBWA that there is an overlap between the service
area described by OBWA in its aplication for a water consumptive use permit and the
service area described by CITY in the water consumptive use premit already issued by the
Water Management District. The Water Management District contends that it does not
determine legal entitlement to service areas by competing utilities, and that when it appears
that an applicant for a consumptive use permit is describing a service area already described
in an existing permit, the applicant must demonstrate the overlap has been resolved with
the existing permittee, or the applicant has legal control over the overlap area. As to the
overlap area in this case, the Water Management District has advised OBWA that the Water
Management District will not issue a water consumptive use permit to OBWA until OBWA
can establish that the overlap has been resolved with CITY or that OBWA has legal control
over the overlap area. A copy of the letter from the Water Management District advising
OBWA of its position is attached hereto as Exhibit D.
13. Attached hereto as Exhibit E is a true copy of the staff report of the Water
Management District, which is notice that the Water Management District intended to issue
a water consumptive use permit for the construction of the well field planned by OBWA.
Attached hereto as Exhibit F is a true copy of the petition (without attachments) filed by
CITY to challenge the Water Management District's decision to issue the permit. The
administrative proceeding has been abated by the hearing officer until the service area
dispute has been resolved by the declaratory action filed by OBWA in the Circuit Court for
Okeechobee County. A copy of the order of abatement is attached hereto as Exhibit G.
14. Attached hereto as Exhibit H is a true copy of the notice by the Department
of Environmental Protection (formerly the Department of Environmental Regulation) that
it intended to issue a permit authorizing the construction of a water treatment plant and
transmission lines by OBWA. Attached hereto as Exhibit I is a true copy of the petition
(without attachments) filed by CITY to challenge the Department's decision to issue the
permit.
15. The well field, water treatment plant and transmission lines OBWA has plans
5 \O13 \CI'CY\I OR'I'NI R.AFF 3
to construct will not be within the corporate limits of CITY n CITY's consumer territory.
The well field will be approximately 6,600 feet away from the CITY limits. The water
treatment plant will be approximately 6,150 feet away from the CITY limits. The
transmission lines will likewise be a substantial distance away from the CITY limits.
CITY has not constructed any water system facilities, similar to the ones
OBWA intends to construct, immediately adjacent to the lands upon which OBWA intends
to construct facilities.
The facilities OBWA intends to construct will not compete with CITY's
existing consumer territory.
18. Affiant has attended negotiating sessions between counsel for OBWA and
counsel for CITY. As of the date of this affidavit, OBWA and CITY have not been able to
agree what will be OBWA's service area when OBWA builds a water treatment plant.
19. Each member of OBWA signs a potable water service agreement with OBWA.
A meter is issued for each service agreement. A service agreement is always signed by at
least one of the owners of the parcel being served by the meter. Frequently all of the co-
owners of the parcel sign the service agreement.
20. Every parcel of land served by OBWA is owned by a member of OBWA. Each
parcel served by OBWA has a meter owned by OBWA installed to serve the owner or
owners with potable water. Each meter has been assigned a customer identification number
which stays with the parcel, regardless of a change of ownership of the parcel served.
21. For purposes of this affidavit, "existing OBWA members" shall refer to those
members of OBWA who have an active service agreement with OBWA as of November 1,
1993, to serve a parcel of land within the area of dispute between OBWA and CITY. As of
November 1, 1993, OBWA has 2,043 meters installed and issued to members who own
parcels of land within the zone claimed by CITY under Okeechobee City Ordinance No. 488
( "the zone "). Attached hereto as Exhibit J is a complete list, as of November 1, 1993, of
meters issued to existing OBWA members within the zone. Each meter, listed by customer
identification number, is owned by OBWA and is installed to serve potable water to the
parcel. Also attached hereto as Exhibit K are copies of the Okeechobee County Property
Appraiser's maps showing the parcels served by OBWA meters in the zone. In Exhibit L
attached hereto, the parcel identification number used by the Okeechobee County Property
5w1-3 \CrrY\FOrFNER.AFF 4
NNW
Appraiser is cross - referenced with the customer identification number used by OBWA. The
customer identification number is marked on Exhibit K, showing the parcels owned by
existing OBWA members which have a meter owned by OBWA installed thereon.
22. Affiant is familiar with the addresses of each parcel within the zone served by
an OBWA meter. For more than a year, Affiant, along with another OBWA employee, read
all of the OBWA meters in the zone in order to prepare monthly billing statements for the
membership.
23. Affiant personally prepared Exhibits J, K and L. The Exhibits are an
accurate representation of the existing OBWA members who own parcels of land within the
zone, served by a meter owned by OBWA as of November 1, 1993.
L. C. FORTNER, JR.
AFFIRMED AND SUBSCRIBED before me on December Z q , 1993, by L.C.
FORTNER, JR., who is personally known to me.
COMMISSION EXPIRATION AND SEAL:
.47::(7s%,;7. s%,;7. KIMBERLEY T. DONALDSON
�iy ';:? MY COMMISSION # CC292797 EXPIRES
": n .I
June 7, 1997
�•. � ';
BONDED TNRU TROY FAIN INSURANCE, INC.
dir
NOT • RY PUBL C, STATE OF FLORIDA
` 1. as.
5 \OI3 \CI "I'Y\FORTNER.APP 5
JUNE 13, 1991 7:30PM MINUTES OF BOARD OF DIRECTORS
The regular meeting of the Board of Directors of OBWA was called to order by
President Pearce. Those present: Director Howell, Director Gabriel, Director
Broome, Attorney Burton Conner, and L. C. Fortner.
The existing and future contract with the City was, also, discussed at length.
Motion by Director Gabriel, second by Director Howell, adopting a Resolution to be
send to the City notifying the City Council that a final contract must be approved
by both boards by October 1, 1991, or the OBWA will begin procedures to construct
a water treatment plant and supply its own water after the City contract expires
October 1, 1994. Motion carried.
Attorney Conner to prepare the Resolution and, also, prepare a letter for Presi-
dent Pearce to sign that will he sent to Mayor. Kirk.
There being no other business, the meeting adjourned at 9:15PM.
Minutes Submitted by:
Su3 rintenc It Fort
Fortner Affidavit
EXHIBIT A
RESOLUTION OF THE BOARD OF DIRECTORS
OF OKEECHOBEE BEACH WATER ASSOCIATION
PASSED ON JUNE 13, 1991
At a regular meeting of the Board of Directors of Okeechobee
Beach Water Association, Inc., ( "OBWA ") held on June 13, 1991, a
quorum being present, it was
RESOLVED by unanimous vote of those Directors present that:
1. If by October 1, 1991, OBWA does not have a binding
contract with the City of Okeechobee for the supply of water
beginning October 1, 1994, then all further negotiations with the
City shall be discontinued. In that event, OBWA shall devote its
full attention for future needs upon building a water plant.
2. The President, Superintendent, and Engineer shall
complete the preliminary inquiries into financing and cost as soon
as possible so that construction of a new water plant, if needed,
may begin as soon as possible after October 1, 1991.
Attest:
OSWA -RE S. JUN
LELAND PEARCE, President
Date: ., -
ijh,a f/ Secre
y
Grantee SS Number:
Parcel Number: 1 -3( -0
I+
Docllmentary Stamps paid In th• -mousy CR '341 u 1188
90012 -0000 ;l! r�JJ er.er,
0.*Z�3
Clerk of Circuit Cd6rt date
WARRANTY DEED
st
This Indenture made this a/ day of January, 1993, BETWEEN
ANDREW L. MIXON and ZELDA J. MIXON, his wife,
of 3793 S.W. 21st Street, Okeechobee, FL 34974 GRANTOR *,
and
OKEECHOBEE BEACH WATER ASSOCIATION, INC.,
of 8840 l lwy 78 W., Okeechobee, FL 34974 GRANTEE *,
WITNESSETII, That said Grantor, for and in consideration of the sum of TEN AND 00/100'S ($10.00)
Dollars and other good and valuable considerations to said grantor in hand paid by said grantee, the receipt
whereof is hereby acknowledged, has granted, bargained and sold to the grantee and grantee's heirs forever the
following described land located in the County of Okeechobee, State of Florida, to -wit:
THAT PART OF GOVERNMENT LOT 6, SECTION 30, TOWNSHIP 37 SOUTH, RANGE 35
EAST, OKEECHOBEE COUNTY, FLORIDA, LYING WEST OF THE CENTERLINE OF SW
34TH TERRACE (OAK PARK ROAD) EXTENDED.
SUBJECT TO RESERVATIONS, RESTRICTIONS AND EASEMENTS OF RECORD, IF ANY.
SUBJECT to encroachment of Lot 1, Block 9 and Lots 1, 2, 3 and 4 of Block 17, OAKPARK
SUBDIVISION, according to the plat thereof recorded in Plat Book 3, Page 3, Public
Records of Okeechobee County, Florida.
and said grantor does hereby fully warrant the title to said land, and will defend the sarne against the lawful
claims of all persons whomsoever.
*Singular and plural are interchangeable as context requires.
IN WITNESS WHEREOF, Grantor has hereunto set grantor's hand and seal this day and year first above
written.
COUN1Y OF Okeechobee
SIA'IR OF FLORIDA
rr
The foregoing instrument was acknowledged before methisprq / day of January, 1993 by ANDREW L. MIXON and ZELDA J. MIXON,
ho wife, who is rsonally known to me or ( )has produced as identification and who ( )did ( )did not
lake an oath.
Prepared ny and Return To:
1011N 1). CASSPIS, .IR., P_SQ.
Cassels k McCall
Post Office nox 908
Okeechobee, Florida 34973
(813) 763 -1131
File Number: 92 -4533
247756
RS' PUIILIC - My Commission Expires:
AL)
'JOHN D. CASSELS, JR.
-+?, : MY COMMISSION EXPIRES
June 11, 1994
F U_L.D 1 (/ll I(I,c4. 1 ° BONDED TIIRU NOt 50,'MIC unnERWRITERS
OKEECII .
93J \;1 2?. (1'110:':2
GLOM;, J, i (TI)
CLERK OF:CIIti.11ll C0111■1
Fortner Affidavit
EXHIBIT B
united States Farmers A440 N.W. 25th Place
Departmen' )f Home O. Box 147010
AgricultuAr Administration Gainesville, F1 32614 -7010
May 3, 1993
Mr. Leland Pearce
Okeechobee Beach Water Association
8840 Highway 70 West
Okeechobee, Florida 33974 -9787
Re: Okeechobee Beach Water Association
FmHA Loan - $4,400,000
Dear Mr. Pearce:
I am pleased to advise that the above - referenced loan has
been approved and the appropriate funds have been obligated.
As you are aware, this approval is subject to the terms of
the Letter of Conditions dated March 29, 1993.
Enclosed herewith is a copy of Form FmHA 1940 -1, Request for
Obligation of Funds, which is being provided for your file.
This form has been signed to indicate approval and
obligation of funds.
We are pleased that Farmers Home Administration (FmHA) is
able to assist your Association in the financing of con-
struction of a water treatment facility to provide reliable
water to its current customers.
Sincerely,
th7
OSEPH M. MUELLER
Chief, Community & Business Programs
Enclosure
cc: DD 5
JMM /clr
Fortner Affidavit
EXHIBIT C
Farmers Home Administration is an Equal Opportunity Lender.
Complaints of discrimination should be sent to:
Secretary of Agriculture, Washington, D.C. 20250
,i -FmHA
m FmHA 1940 -1
rev. 2 -93)
w
REQUEST FOR OBLIGATION OF FUNDS
li%- ":1111 •IV:Ut-:y • }.y•IL ' ts, :.r
LOAN NUMBER
1. CASE NUMBER
S T C 0 BORROWER ID
O1 91 014 1 7 1 01519 1 1L1 41.814L I
2. BORROWER NAME
01KJE_1EIC1H101B1EjEj 1BJElAlCJHL1WlAtTLEtRL
A ISIS 101 C ILA IT] I10,1 N 1 t 1 1 1 1 1 1 1 1 1 1
6. RACE CODE
I -- WHITE 4- HISPANIC
2 - BLACK 5 - A/PI
3 - AVAU
10. VETERAN CODE
-1 1 - YES
2 - -- YE
15. INTEREST CREDIT
-- YE; rrr'n Sr,I oru YI
2 -NO
18. TYPE OF ASSISTANCE
7. EMPLOYEE RELATIONSHIP CODE
(See FM!) 3 - CLOSE
I -- EMPLOYEE RELATIVE
2 - MEMBER OF FAMILY 4 -- ASSOC.
4
Li
3. NUMBER NAME FIELDS
2 1_ I (1, 2, or 3frnm Item 2)
4. STATE NAME
FILIOLRJ I IDIAI
5. COUNTY NAME
1 1 1 1 1 1 1 1
OKEECHOBEE
8. SEX CODE 4 - ORGANIZATION - 9. MARITAL STATUS
- MALE MALE OWNED 1 -- MARRIED
2 - FEMALE 5 -- ORGANI7AT ION -- 2 - SEPARATED
3 - -- rAMILY FEMALE OWNED I 3 UNMARRIED (INCLUDES
UNIT 6 - PUBLIC BODY 1 -- WIDOWED OR DIVORCED)
11. CREDIT REPORT
I - YES
2 I 2 -NO
12. DIRECT PAYMENT 13. TYPE OF PAYMENT
16. COMMUNITY SIZE
1 - 10.000 OR LESS
2 -OVER 10.000
(FOR SPH AND IIPG ONLY)
19. PURPOSE CODE
01 61 t I (See FMI) 1J
27. TYPE OF SUBMISSION
1 INITIAL
2 -- SURSEOUENT
I 1 --
25. AMOUNT OF
IMMEDIATE ADVANCE
I - -- MONTNI -Y 3 -- SEMI ANNUALLY
2 12 - ANNUALLY 4 - QUARTERLY
17. DWELLING TYPE/USE OF FUNDS CODE
• (See FMI)
20. SOURCE OF FUNDS
21
14. FEE INSPECTION
a I 1 -YES
2 -NO
21. TYPE OF ACTION
t - OBLIGATION ONLY
7 - OBLIGATION/CIIECK
REOIJEST
1 3 -- CORRECTION OF OBLIGATION
23. AMOUNT OF LOAN 1 24. AMOUNT OF GRANT
- t444101_0401 101010
26 DATE OF APPROVAL
MO DA YR
0 4 - 2 9 - 9 3
•
r =1
019 L_
27. INTEREST RATE 28. REPAYMENT TERMS
0 5 2 5 0 0%
4 0
29. INCOME CATEGORY
I1 -- VERY LOW
11
2 - LOW
32. R.E. INSURANCE
36. TYPE OF UNIT
30. LOW INCOME LIMIT - MAX.
3 -- MODERATE
4 - ABOVE MODERATE
-- FARM TRACT
2 - MON-FARM TRACT
37. TYPE OF APPLICANT
- INDIVIDUAL
- PARTNERSHIP
3 - CORPORATION
33. R.E. TAXES
1st Year
1 1 40101
4 - PUBLIC BODY
5 - ASSOCIATION OF FARMERS
6 - ORGANIZATION OF FARM WORKERS
39. DISASTER DESIGNATION NUMBER
(See FMI)
41. OBLIGATION DATE
MO DA YR
7 - OTHER
111 I 1010
34. R.E. TAXES
2nd Year
�-1
LA 0J 0
38. PROFIT TYPE
31. ADJUSTED FAMILY INCOME
35. NOTE INSTALLMENT
INELIGIBLE
1 - FULL PROFIT 3 - NONPROFTT
2 - LIMITED PROFIT
40. TYPE OF SALE
1 - CREDIT SALE ONLY 3 - CREDIT SALE WITH SU1ESEOUENT LOAN
2 - ASSUMPTION ONLY 4 - ASSUMPTION WRN SUBSEQUENT LOAN
42 BEGINNING FARMER/RANCHER
I Y -YES
1 1 -1 1 1 -1 1 I N.NO
If the decision contained above in this form results in denial, reduction or cancellation of FnilIA assistance, you may appeal this decision and hale a hearing or you
may request a review in lieu of a hearing. Please use the form we have included for this purpose.
r T\PP1,T�'nt1T
Position 2 •
FmHA 1940-1 (Rev. 2 -93)
7 CERTIFICATION APPROVAL
For Alt Farmer Programs
EM, OL, FO, and SW Loans
This loan is approved subject to the availability of funds. If this loan does not close for any reason within 90 days from
(;1-: the datb of approval on this document, the approval official will request updated eligibility information. The undersigned
i.loan. pplicant agrees that the approval official will have .14 working days to review any updated information prior to
submitting this document for obligation of funds. If there have been significant changes that would affect eligiblity a
decision as to eligibility and feasibility will be made within
a:' 1, infoti»aton '
. If this is a loan approval for which a lien and /or title search
working -day loan closing requirement may be exceeded
completing title work and completing loan closing.
43. COMMENTS AND REQUIREMENTS OF CERTIFYING OFFICIAL
30 days from the time the applicant provides the necessary
is necessary, the undersigned applicant agrees that the 15-
for the purposes of the applicant's legal representative
,'APPROVAL OF FINANCIAL ASSISTANCE IS SUBJECT TO THE TERMS OF THE "LETTER OF
CONDITIONS" DATED MARCH 29, 1993.
44. I IIEREBY CERTIFY that 1 am unable to obtain sufficient credit elsewhere to finance my actual needs at reasonable rates
and terms, taking into consideration prevailing private and cooperative rates and terms in or near my community for loans
for similar purposes and periods of time. I agree to use, subject to and in accordance with regulations applicable to the
type of assistance indicated above, and request payment of the sum specified herein. 1 agree to report to FtrtlIA any
taterial adverse changes, financial or otherwise, that occur prior to loan closing. i certify that no part of said sum has
been received. I have reviewed the loan approval requirements and comments associated with this luau request and agree
to comply with these provisions.
(For SFII & FP loans at eligible terms only) If this loan is approved, I elect the interest rate to be charged on my Full IA
loan to be the lower of the interest rate in effect at the time of loan approval or loan closing. If I check "NO ", the interest
rate charged on my loan will be the rate specified in item 27 of this form. ?(__YES ___NO
WARNING:
SECTION 1001 of Title 18, United States Code provides: "Whoever, in any matter within the jurisidtctton
of any department or agency of the United States knowingly and willfully falsifies, conceals or covers
up...a material fact or makes any false, fictitious or fraudulent statements or representations, or makes
or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent
statement or entry, shall be fined not more than $10,0 .r Imprisoned not more than 5 years, or both."
Date 3- 3o , 19 23
Date , 19
(Signature of Applicant)
(Signature ofCo- Applicant)
45. I HEREBY CERTIFY that all of-the committee; and administrative determinations and certifications required by Fut mcrs
1lome Administration regulations prerequisite to providing assistance of the type indicated above have been made and
that evidence thereof is in the docket, and that all requirements of pertinent regulations have been complied with. I hereby
approve the above - described assistance in the amount set forth above, and by this document, subject to the availability
of funds, the Government agrees to advance such amount to the applicant for the purposes of and subject to conditions
prescribed by Farmers Ilome Administration regulations aPpllicable to this type of assistance.
Date Approved:
l /
,TO THE APPLICANT: As of this date .� /7f 93
.sistance from the Fanners Ilome Administration has
funds and other conditions required by the Farmers 1
t: ; County Supervisor.
4/29/93
JOSEPH M. MUELLER
(.Signature of . t ppnrring Official)
Tide: Chief, Community & Business Pro9racns
this is notice that your application for the above financial as-
been approved, as indicated above, subject to the availability of
tome Administration. If you have any questions contact the
3 Ij1:30FM FROM SFWMD,ULAT ION DEPT
LADs1-2L,o__
South Florida Water Management District
3301 Guru Club Road • P.O. Box 24880 •
CON 24 -06
May 20, 1993
Ms. Suzanne Harper
ViroGroup, Inc. - Missimer Division
600 Sandtree Drive, Suite 101
Lake Park, FL 33403
Dear Ms. Harper:
(0.-6**4 'PM .(1):
MY. FIVty+vv% C. CDIA ker.
14t311461-6316
NATS 1- 800•'152.2045
Subject: Application #921204 -10
Okeechobee Beach Water Association, lnc,(OBWA)
Okeechobee and Glades Counties
On April 29, 1993, a response to the request for additional information for the above
application was received by the District. A review of the response indicates that
additional Information is still required in order to complete the evaluation, pursuant to
Rule 40E- 1.603, Florida Administrative Code (FAC).
It is understood that the franchise agreements between OBWA and Glades and
Okeechobee counties have been approved and that a certification exemption from the
Public Service Commission is pending approval. Please submit copies of the executed
franchise agreements and documentation of the PSC exemption, when It is available.
However, due to information recently made available to District staff regarding City
of Okeechobee Ordinance No. 448 (201 facilities planning area), there still remains an
issue of a conflict in service territory between the City of Okeechobee and OBWA in
that each entity is claiming to serve overlapping service areas.' The PSC exemption
certification and franchise agreements are not sufficient to demonstrate legal control
of the requested service area because of this overlap. As required in Permit
Information Manual, Volume III, Basis of Review (BOR) section 3.1.1, Control Over
Activities, applicants must have legal control over the activities for which they desire
a permit. Specifically, conflicting service area claims between applicants, or between
an applicant and en unregulated water service area, must bp. resolved by the involved
parties. Please provide documentation of legal control for the requested service area
and show that no conflict in service area exists between the City of Okeechobee and
OBWA.
Fortner Affidavit
EXHIBIT D
04 : 30FM FROM SFIF EGULAT ION DEPT
P03
If the potential dispute of service area can not be resolved, a water use permit may
be issued to OBWA for water supply to the undisputed areas. Please be advised, if
this option is taken the application will need to be modified to include, but not limited
to, population projections for the specific undisputed areas to calculate en appropriate
allocation.
In accordance with Rule 40E- 1.603(5), FAC, a response is required within 30 days of
receipt of the letter requesting additions! information or the application may be
processed for denial if not withdrawn by the applicant. Should you have any
questions regarding this application, please call me et 800 - 432 -2045 ext.6944, or
407 -687 -6944. Thank you for your cooperation In this matter.
Sincerely,
J -- ,04 e- dam. Cep -4;4-
Thomas Collos
Senior Scientific Technician
Water Use Division
Regulation Department
c: L.C. Fortner, OBWA
Utilities Director, City of Okeechobee
William D. Reese, P.E.
John J. Drago, City Administrator
Burton C. Conner, F'.A.
Michael Wm. Morel!, P.A.
CON 24-06
South Florida Water Management District
x;1111,n11 ( 1111)I2()n(1 • I)O 1,( ‘‘ '21081) • \ \%cst Iir(i111.I I 37,1I61(C81) • (.107) 68e, 8311' • 1'I-AV' \TS1- 8IN1..1.?_':'.111 -i
August 31. 1993
Okeechobee Beach Water Association Inc
8840 Highway 78 West
Okeechobee, FL 34974
Subject: Application No. 921204 -10 , Wellfield for Okeechobee Beach
Water Association Inc, Okeechobee County, S-- /T37S /R35E
Enclosed is a copy of this District's staff report covering the permit application
referenced therein. It is requested that you read this staff report thoroughly and
understand its contents. The recommendations as stated in the staff report will be
presented to our Governing Board for consideration on September 9, 1993.
Should you wish to object to the staff recommendation or file a petition, please
provide written objections, petitions and /or waivers (refer to the attached "Notice of
Rights ") to:
Vern Kaiser, Deputy Clerk
South Florida Water Management District
Post Office Box 24680
West Palm Beach, Florida 33416 -4680
The "Notice of Rights" addresses the procedures to be followed if you desire a public
hearing or other review of the proposed agency action. You are advised, however, to
he prepared to defend your position regarding the permit application when it is
considered by the Governing Board for final agency action, even if you agree with the
staff recommendation, as the Governing Board may take final agency action which differs
materially from the proposed agency action.
Please contact the District if you have any questions concerning this matter. If we
do not hear from you prior to the date on the "Notice of Rights ", we will assume you
concur with our recommendations.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a "Notice of Rights" has been mailed to the addressee and the
persons listed in the attached distribution list not later that 5:00 p.m. this 31st
day of August 1993, in accordance with Section 120.60 (3), Florida Statutes.
Sincerely,
Steve Lamb, Director
Regulation Department
CERTIFIED P # 252 257 514
RETURN RECEIPT REQUESTED
Fortner Affidavit
EXHIBIT E
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South Florida Water Management District
Notice Of Rights
NOTICE OF RIGHTS
Enclosed is a copy of the Staff Review Summary regarding the subject permit application, which
is this agency's Notice of Proposed Agency Action.
PETITION FOR FORMAL ADMINISTRATIVE PROCEEDINGS
Any person whose substantial interests are or may be affected by the action which is proposed
in the enclosed Notice of Proposed Agency Action /Staff Review Summary, may petition for an
administrative hearing in accordance with the requirements of Rule 40E- 1.521, Florida
Administrative Code, and be filed with (received by) the District Clerk, 3301 Gun Club Road,
West Palm Beach, Florida 33406. Petitions for administrative hearing on the above application
must be filed within fourteen (14) days of actual receipt of this Notice of Proposed Agency
Action. Failure to file a petition within this time period shall constitute a waiver of any rights
such person may have to request an administrative determination (hearing) under section
120.57, Florida Statutes, concerning the subject permit application. Petitions which are not filed
in accordance with the above provisions ate subject to dismissal.
FLORIDA LAND AND WATER ADJUDICATORY COMMISSION
A party to the proceeding below may seek review of a Final Order rendered on the permit
application before the Land and Water Adjudicatory Commission. Review under section
373.1 14, Florida Statutes, is initiated by filing a request for review with the Land and
Adjudicatory Commission and serving a copy on the Department of Environmental Protection
and any person named in the Order within applicable statutory tirneframes This review is
appellate in nature and limited to the record below.
DISTRICT COURT OF APPEAL
A party who is adversely affected by final agency action on the permit application is entitled to
judicial review in the District Court of Appeal pursuant to section 120.68, Florida Statutes, as
provided therein. Review under section 120.68, Florida Statutes, is initiated by filing a Notice of
Appeal in the appropriate District Court of Appeal in accordance with Florida Rule of Appellate
Procedure 9.110.
CIRCUIT COURT
Section 373.617(2), Florida Statutes, provides:
Any person substantially affected by a final action of any agency with respect to a per
may seek review within 90 days of the rendering of such decision and request monetary
damages and other relief in the circuit court in the judicial circuit in which the affected
property is located; however, circuit court review shall be confined solely to determining
whether final agency action is an unreasonable exercise of the state's police Dower
constituting a taking with just compensation. Review of final agency action for the
purpose of determining whether the action is in accordance with existing statutes or r cries
and based on competent substantial evidence shall proceed in accordance iffy Chapter
120.
form 0300 /side 2
Rev. 7/93
40E -1.521 Initiation of Formal Proceedings
(1) Initiation of forma) proceedings shall be made by filing a petition with the I)I.1r1, 1 1,'11
within the applicable tirnelrames set forth in this chapter The term petition m<hides oily ,,f,l,li,,,nnn
or other document which expresses a request for formal proceedings
(2) All petitions tiled under these rules shall contain:
(a) the name and address of the District and the I)istrict's Ole or identih(atron iiruuhc r 11 klit,: i
(b) the name and address of the petitioner or petitioners,
(c) An explanation of how each petitioner's substantial interests will be allect<-d I,', the Di ii t
determination;
(d) A statement of when and how petitioner received notice of agency action or nonce of I,rc,l,(,w,I
agency action;
(e) A statement of all disputed issues of material fact If there are none, the petition most -.o Ind', ate
(1) A concise statement of the ultimate facts which petitioner believes entitle petition r to nit:- rulieI
sought as well as the rules and statutes which support petitioner's claim for relief,
(g) A demand for the relief to which the petitioner deems himself entitled, and
(h) Other information which the petitioner contends is material
(3) Upon receipt of a petition for formal proceedings, the Office of Counsel shall review the petition
for compliance with subsection (2). (he Board shall accept those petitions in substantial compliance therewith,
which have been timely filed, which establish that the petitioner is a substantially affected party, and wtir h state a
dispute which is within the Itrrisdiction of the District to resolve If accepted, die Board shall designate Iht_ presiding
officer of the administrative hearing. 111e District shall promptly give written notice to all parties of the ac tion
taken on the petition, and shall state with particularity its reasons therefor
t/) If the Board designates a I Tearing Officer assigned by the Division of Administrative lleanngs i thy,
presiding officer, the District Clerk shall forward the petition and all relevant materials filed with the Instri1 t to th
Division of Administrative Heat rugs, and shall notify all parties of its action
Specific Authority 373 041, 373.1131 S.
Law Implemented 120 53(1), 120.5 / F S.
t lrstory --- New 9 3 81, Amended 5-11 9i
Formerly 16K-1 09(1), 16K 1 112(1) through (-I), 16K 1 12
LAST DATE FOR GOVERNING BOARD ACTION:
November 10, 1993
bRAFT
Subject to Governing
Board Approval
WATER USE STAFF REVIEW SUMMARY
APPLICATION NUMBER: 921204 -10
PROJECT NAME: WELLFIELD FOR OKEECHOBEE BEACH WATER ASSOCIATION INC
WATER USE STATUS: PROPOSED
SURFACE WATER MANAGEMENT STATUS: NOT APPLICABLE.
RIGHT OF WAY STATUS: a NOT APPLICABLE
LOCATION: OKEECHOBEE COUNTY
SEC 29,30,32/T37S/R35E
APPLICANT'S NAME AND ADDRESS: OKEECHOBEE BEACH WATER ASSOCIATION INC
8840 HIGHWAY 78 WEST
OKEECHOBEE, FL 34974
OWNER'S NAME AND ADDRESS:
PURPOSE:
OKEECHOBEE BEACH WATER ASSOCIATION INC
8840 HIGHWAY 78 WEST
OKEECHOBEE, FL 34974
The purpose of this application is to obtain a water use permit for public
water supply system to serve a service area in Okeechobee and Glades Counties.
The wellfield locations are outside of the service area in Sections 29, 30 &
32, Township 37S, Range 35E. The applicant's service area is depicted in
Exhibits 1 -3.
1
STAFF RECOMMENDATIONS
DATE OF ISSUANCE: September 9, 1993
PERMIT DURATION: 10.00 YEARS
EXPIRATION DATE: September 9, 2003
USE CLASS: PUBLIC WATER SUPPLY
GROUNDWATER FROM THE SURFICIAL AQUIFER SYSTEM
RECOMMENDED ALLOCATION:
ANNUAL ALLOCATION: 259 MILLION GALLONS (MG)
MAXIMUM DAILY ALLOCATION: 1.06 MILLION GALLONS (MG)
EXISTING WITHDRAWAL FACILITIES - GROUNDWATER:
GW SOURCE: SURFICIAL AQUIFER SYSTEM
1 - 8" X 160' X 175 GPM WELL CASED TO 105 FEET
PROPOSED WITHDRAWAL FACILITIES - GROUNDWATER:
GW SOURCE: SURFICIAL AQUIFER SYSTEM
1 - 8" X 135' X 175 GPM WELL CASED TO 9G FEET
1 - 8" X 150' X 175 GPM WELL CASED TO 105 FEET
3 - 8" X 155' X 175 GPM WELLS CASED TO 110 FEET
1 - 8" X 165' X 175 GPM WELL CASED TO 120 FEET
TOTAL RATED CAPACITY:
GPM MGD MGM MGY
SURFICIAL AQUIFER SYSTEM E 175 .25 7.6 92
SURFICIAL AQUIFER SYSTEM P 1050 1.51 45.4 552
TOTALS 1225 1.76 52.9 644
2
IMPACT EVALUATION SUMMARY
RESOURCE SAFE YIELD:
The Surficial Aquifer System in the City of Okeechobee area generally has low
yield characteristics. On -site aquifer performance tests indicate the
transmissivity of the Surficial Aquifer System ranges from 5000 -8000 GPD /FT
with an approximate thickness of 160 feet. Water level readings of 15 feet
NGVD result in a total available drawdown of approximately 155 feet. The
applicant's consultant utilized the U.S.G.S. groundwater flow model, MODFLOW,
to address potential impacts by simulating a maximum pumpage of 1.5 MGD with 2
in 10 deficit rainfall. However, due to a change in the maximum daily
allocation to 1.06 MGD, Staff utilized the Theis Non - Equilibrium model to
simulate maximum daily withdrawals for a 90 day period with no recharge.
Results of the Theis model (Exhibit 5) predict a maximum drawdown of
approximately 13.5 feet in the production zone of the wellfield. The
sustained yield of the aquifer is not expected to be exceeded as a result of
the withdrawal of the recommended allocation.
EXISTING LEGAL USERS:
The closest existing legal user is Wolff Brothers Dairy, Inc. (Permit 47-
00035-W), which utilizes surface water from the County Highway Drainage Ditch
along Eagle Bay Road for irrigation of 17 acres of citrus. The proposed water
treatment plant site is located south of Durrance Road with the 17 acre citrus
grove to the north. Results of the modelling indicate an approximate drawdown
of 5 feet at the existing legal user's surface water pump location. Because
the existing legal user utilizes only surface water from the ditch, the
projected drawdown should not interfere with the withdrawal capability of the
pump. The potential for adverse impacts to occur to existing legal users as a
result of the withdrawal of the recommended allocation is considered minimal.
LEGAL DOMESTIC USERS:
A residential area, located directly to the northeast of the main wellfield
site, may potentially utilize the Surficial Aquifer System as a source of
potable water. For the purpose of analysis, it is assumed that a domestic
user is as close as the project boundary withdrawing water from a well with a
centrifugal pump that has a lifting capability of 20 feet below land surface.
The dry season water level of the Surficial Aquifer System is approximately 5
feet below land surface. Modelling indicates an approximate drawdown of 12
feet at the project boundary which would result in a water level of 17 feet
below land surface. The potential for adverse impacts to occur to existing
legal domestic users as a result of the withdrawal of the recommended
allocation is not considered to be likely.
3
SALINE WATER INTRUSION:
The project is located over 32 miles from the nearest source of surface saline
water. The applicant has submitted water quality results from each of the
three test wells which do not indicate the presence of connate saline water.
The Surficial Aquifer System is hydrologically separated from the Floridan
Aquifer System by a confining unit. Therefore, the potential for significant
saline intrusion or upconing to occur as a result of the withdrawal of the
recommended allocation is considered minimal.
PROTECTED WETLANDS ENVIRONMENT:
An off -site, viable wetland area is located northwest of the proposed
wellfield. Results of the Theis modelling indicate that withdrawals from the
proposed wellfield location result in less than one foot of drawdown at the
wetland boundary, when wells 1 -6 are utilized equally in the normal wellfield
rotation to meet the maximum daily allocation and well number 7 (located
closest to the wetland) is not used. Exhibit 5B shows the extent of the
projected one foot drawdown contour in relation to the wetland area.
Therefore, the potential for adverse impacts to occur to protected wetland
environments as a result of the withdrawal of the recommended allocation is
considered minimal. Staff recommends that well number 7 be utilized only as
an emergency backup facility or, if feasible, relocated at a greater distance
away from the wetland area. See Limiting Condition Number 28.
SOURCES OF POLLUTION:
The closest known potential pollution source in the vicinity of the project is
the Time Saver Shell No. 49 located approximately 1.5 miles north of the main
wellfield in the north part of Section 20, Township 37S, Range 35E. The gas
station has documented hydrocarbon contamination in the groundwater and has an
approved Remedial Action Plan (RAP) from the Department of Environmental
Protection. The RAP and associated recovery system are currently under review
for a water use permit. Results of the model predict a drawdown of less than
0.1 feet at the gas station boundary. The potential for the induced movement
of contaminants from known sources of pollution to occur as a result of the
withdrawal of the recommended allocation is considered minimal.
ADDITIONAL DESCRIPTIVE INFORMATION:
FACILITIES
The applicant proposes one wellfield and one water treatment plant with no
emergency interconnections. Pursuant to Limiting Condition Number 18, the
permittee shall develop and implement a wellfield operating program which
details the operation schedule of the wellfield. This plan may be submitted
to the District as a letter report. Pursuant to Limiting Condition Number 28,
Staff recommends that proposed well number 7 only be utilized as an emergency
backup facility due to its proximity to the off -site wetland area and the
potential for adverse impacts.
4
The wellfield will have 6 proposed and 1 existing (no. 5) Surficial Aquifer
System wells with a total proposed withdrawal capacity of 1.764 MGD. Wells 3-
7 will be located in one area as the main wellfield with wells 1 and 2 located
in the vicinity of the water treatment site, as shown on Exhibit 5B. The lime
softening water treatment facility is proposed to have a capacity of 1.5 MGD.
There are two elevated storage tanks with a 75,000 gallon capacity and an
additional proposed storage tank with a capacity of 1 to 1.5 MG.
COMMENTS FROM OTHER AGENCIES
The Department of Environmental Protection and Okeechobee County HRS have
reviewed the application and have no objections to the proposed wellfield and
issuance of the permit.
DURATION OF PERMIT
Current District regulations (Permit Information Manual, Volume III, Section
5.1.2.1) allow a maximum of a 10 year permit duration. Staff recommends a
permit duration of 10 years.
WATER CONSERVATION PLAN
1. Permanent Irrigation Ordinance - OBWA has requested Okeechobee and Glades
Counties to pass an ordinance which restricts landscape irrigation to the
hours of 4:00 p.m. to 10:00 a.m. seven days per week.
2. Xeriscape - OBWA has requested Okeechobee and Glades Counties to pass an
ordinance which requires the use of xeriscape landscape principles.
3. Ultra -low Volume Plumbing Fixtures - OBWA has requested Okeechobee and
Glades Counties to pass an ordinance which requires ultra -low volume plumbing
fixtures on all new construction.
4. Water Conservation Rate Structure - OBWA has adopted an increasing block
rate structure and seasonal rates to encourage water conservation.
5. Leak Detection - OBWA performs a leak detection survey when the
unaccounted -for water loss is greater than 10% utilizing leak surveillance
techniques and calibration and certification of all water meters.
6. Rain sensor devices - OBWA has requested Okeechobee and Glades Counties to
pass an ordinance which requires any person who purchases and installs an
automatic lawn sprinkler system to install, operate and maintain a rain sensor
device or automatic switch which will override the irrigation system with the
occurance of adequate rainfall.
7. Water Conservation Education Program - OBWA will print a message about
water conservation to customers on the monthly bills.
8. Reclaimed Water - OBWA does not operate its own wastewater treatment
plant. Part of the OBWA service area is served by septic tanks, with the
5
remainder of the wastewater being treated by the City of Okeechobee.
SERVICE AREA AND LEGAL CONTROL
Introduction
OBWA requests to serve its existing customer base and the current and OBWA . Since
projected demands in its Po °Pheedrequested servicexareatin)portionslof Glades
has been supplying water
and Okeechobee Counties through its corporate owned water transmission lines
OBWA provides water service in the designated area to its approximately
members, who own and control the corporation. Each customer or member has an
ownership interest in the corporation and voting rights.
�OBWA's proposed service area lies within bothiOkeechfbeecaiddeGagreements dds nties.
In the permit application, OBWA submitted cop
executed with each county requiring water service by OBWA for the proposed
Lervice area within their respective jurisdictions.
Criteria 3.1.1.1.1 rainsaacertificationlofedtheyproposedlserveicel
obt area prior
Commission (PSC) to ob
to issuance of the water use permit. OBWA is exempt frolaregulat10n byethered
Public Service Commission pursuant to Section 367.022, F.
by Section 367.031, Fla. OBWA
oc
has obtind
Exempt Status of Okeechobee B each
Order) for the proposed service area.
The City of Okeechobee ( "City ") currently sells water to OBWA pursuant to
their bulk sale agreement ( "Contract "). OBWA then distributes the water
through its water distribution not intend to customers within
area. OBWA currently does relationship
with the City after expiration of the Contract in September, 1994. OBWA
intends to begin producing its own the gaQlontperidayhis
permit application. OBWA also p lans
water treatment plant which it represents will be operational in 1994.
The City currently has a water use permit (Permit # 47- 00004 -W), which was
renewed in 1991. The permit includes an allocation of water to supply to OBWA
pursuant to the Contract between the City and OBWA.
The City has provided information to DistricttSStaff
ffrrregarding
gatthe
eiOBWOrdinance
requested service area. Specifically, water
488, which it adopted in 1983, provides it the exclusive right to supply water
to portions of the OBWA designated service area (Exhibits 2A, 2B & 3).
City's claim is that such ordinance OBWA
area and the City asks the District to
Since two entities claim the right to serve the same geographic area, the
District's service area dispute acriteria iscussion of this criteria applied the
application. The following
6
OBWA application.
District Service Area Dispute Criteria
Pursuant to the reasonable - beneficial use test set forth in Section 373.223,
Fla. Stat., a permit applicant must demonstrate need for the requested water
allocation. Need is demonstrated in part through a showing of "legal control"
over the area to be served by a public water supply. The District's legal
control criteria is set forth in Criteria 3.1.1 of the Basis of Review.
Criteria 3.1.1.1.5 of the BOR states that conflicting service area claims
between the applicant and an unregulated water service area must be resolved
by the involved parties. Service area is defined as "the geographic region in
which a water supplier has the ability and legal right to distribute water for
use." The Criteria goes on to state that "unresolved disputes will prompt the
Staff to recommend an allocation based only on the non - disputed protions of
the projected service area." Staff's position is that the purpose of this
resource related criteria is to prevent waste when water is allocated to two
separate entities for the same use, or double allocated.
In making the determination of whether the applicant has need for the
requested water allocation, pursuant to Criteria 1.3 of the BOR, District
Staff is directed to implement the Basis of Review criteria flexibly, "with
the primary goal being to meet District water resource objectives... Depending
on the magnitude of impacts, other methods will be considered by Staff, or
presented to the District's Governing Board for its consideration." Thus, in
this circumstance of disputed service area claims, the context of the City's
claims must be considered in relation to the District's resource objectives,
such as protecting water supplies from depletion and contamination.
Moreover, it is important to note what Criteria 3.1.1.1.5 is not intended to
address. Specifically, the criteria does not, and cannot be interpreted as,
giving the District the authority to decide service area claims. It is not
within the jurisdiction of the District's consumptive use permitting authority
to adjudicate service area disputes. These disputes generally involve
contract and statutory rights that are irrelevant to the objectives of Chapter
373 and are properly resolved in circuit court actions. Likewise, the
issuance of a consumptive use permit with an allocation of water for use
within a disputed geographic region does not establish or alter the legal
right of either entity to supply water to the affected region.
With the resource and public interest related context of the District's
service area inquiry in mind, it is also necessary to understand the extent of
inquiry which the agency conducts when a service area is disputed. Due to the
lack of jurisdiction to decide service area disputes, this scope of inquiry
into legal control is limited.
In implementing the legal control criteria, the District requires only a
preliminary demonstration of legal control to supply water to a subject
service area, irrespective of another entity's claim for the service area.
Only a preliminary demonstration of legal control is necessary, because the
7
agency's purpose of inquiring into these matters is limited in scope, as
stated above. A requirement for demonstration of legal control beyond this
preliminary showing would put the District in the precarious position of
adjudicating the rights of disputing entities, a responsibility that lies
solely within the circuit court's jurisdiction. In extraordinary
circumstances, such as this application, a disputed service area question
arises. However, the existence of a disputed service area does not alter the
preliminary nature of the agency's inquiry into legal control matters.
City of Okeechobee Service Area Dispute
In response to the City's service area dispute arguments, OBWA maintains that
it has facially demonstrated legal control over the service area through its
legal obligation and ability to distribute water to its customers. An
examination of the nature of OBWA itself and the Contract terms and
relationship created thereby will further clarify each party's interest in
supplying water to the designated area.
As stated above, OBWA is a corporation which provides water service solely to
its members, who own and control the corporation. Each customer has an
ownership interest in the corporation and voting rights. Thus, OBWA has a
unique leg_al__ obligation to_supply water to its customers.
The City sells water to OBWA pursuant to a bulk sale agreement, or the
Contract. OBWA then distributes the water throughout its water distribution
system to its customers within the service area. Significantly, the Contract
expires in September, 1994. Although the parties have attempted to negotiate
a renewal, it appears that they are currently at an impasse.
Clearly, both parties have some interest in supplying water to the service
area. Initial reading of Criteria 3.1.1.1.5 suggests that this agency must
attempt to force the parties to resolve their dispute and, if possible, issue
a partial allocation for undisputed areas. The result of such an action, in
this case, would be contrary to the agency's overriding interest in the
public's health, safety and welfare. If a water use permit is not issued to
OBWA, the citizens may not receive the potable supply upon which they depend
;'for daily subsistence.
There is no assurance under the Contract that water will be supplied to OBWA
for its existing customers after October, 1994, unless OBWA obtains a water
use permit. As set forth in the PSC Exemption Order, OBWA represents that it
must begin construction of the water withdrawal facilities and water treatment
plant as soon as possible in order to supply water by the time the Contract
with the City expires in 1994 or when the water treatment plant becomes
operational.
Moreover, by denying the requested allocation based on the fact that there is
a service area dispute, the District would in effect be adjudicating the right
of OBWA to service its customers. OBWA has instituted a circuit court action
to resolve the service area dispute set forth by the City. If the legal
8
dispute is ultimately resolved in OBWA's favor, denial of the OBWA permit
application now would prevent it from initiating construction of necessary
water withdrawal and treatment facilities in time to be able to provide water
to its customers in October, 1994. Such a denial would force OBWA to accept
the City's provision of service, thereby confirming the City's service area
claims; a matter not within the District's authority to adjudicate. ..____,,
The terms ,Qf the-Contr-act. further support OBWA's assertion that OBWA has the
ultimate legal obligation'10 supply water to its customers. Under the
Contract, e pity- retains the right to "discontinue water service to the
Association until all arrearage is paid in full." The fact that the City can
shut off water supply to OBWA undermines the City's arguments that it has the
exclusive legal obligation to supply water to the affected area. (See
Paragraphs 4 and 5 of the Contract). Furthermore, under the Contract, OBWA is
held ultimately responsible for "testing, evaluating and treating the water
purchased from the City..." and the City is "not held accountable for the
quality of water delivered" to OBWA. Thus, OBWA, and not the City, has the
legal responsibility for assuring that an adequate quantity and quality
of drinking water is supplied to its customers.
In addition to the prima facie establishment of the legal right to serve
water, pursuant to the definition of "service area," the water supplier must
have the ability to distribute water for use within the affected area. This
recognizes that although the permit applicant or permittee is able to
demonstrate the requisite legal water supply right, no supply of water will
occur if the entity is without the ability to distribute water within the
affected area. In this case, the infrastructure used to distribute the water
within the service area is owned by OBWA. In the event that the Contract is
not renewed in 1994, it is unclear how the City would be able to actually
distribute water to OBWA's customers.
Based on these considerations, District Staff has determined that OBWA has
made the requisite preliminary showin• that it has the legal right and ability
to provide water to its customers and, therefore, has legal control. District
Staff recognizes that a facially su 'icient showing of a 'legal riga to
service water within a geographic region may be made by more than one public
water supply entity in some cases. Thus, in this instance, the allocation of
water to the two entities for a limited time period until the dispute is
ultimately resolved through the pending court action is necessary due to the
overriding public interest concerns.
DEMAND PROJECTIONS
The applicant has based demand projections on population figures from the
existing customer base of OBWA and areas outside the City of Okeechobee's 201
facilities planning area. The population projections are consistent with the
Comprehensive Plans for Okeechobee and Glades Counties. The applicant
indicates a population of approximately 8,013 persons for the year 1992. The
projected increase in population through the year 2003 is approximately 337
people for a total of 8,350 persons in the service area. The applicant
requests an average daily demand of .71 MGD for the year 2003, based on a
historical per capita use rate of approximately 85 gallons per day. The
implementation of the water conservation plan should yield future water
savings which will be used for the forecasting of projected demands at the
next permit re- issuance.
REQUESTED AVERAGE DAILY ALLOCATION
The applicant has requested an average daily allocation of .71 MGD or 259.15
MGY.
REQUESTED MAXIMUM DAILY ALLOCATION
The applicant has requested a maximum daily allocation of 1.065 MGD. The
maximum daily allocation is based on a maximum daily to average daily demand
ratio of 1.5 weighted over the entire service area requested to be served by
OBWA.
RECOMMENDED ALLOCATIONS
Staff recommends an annual allocation of 259 MGY (.71 MGD average) and maximum
daily allocation of 1.06 MGD from the wellfield withdrawing groundwater from
the Surficial Aquifer System for supplying potable water to the requested
service area.
10
RECOMMENDATIONS
APPLICATION NUMBER: 921204 -10
DATE OF ISSUANCE: September 9, 1993
RECOMMENDATION SUMMARY:
Staff recommends approval of Application No. 921204 -10 for public water
supply serving 8350 persons in the year 2003 with an average per capita
use rate of 85 gallons per day and a maximum daily to average daily
pumping ratio of 1.5. Withdrawals are from the Surficial Aquifer System
via 1 existing withdrawal facility and 6 proposed withdrawal facilities.
The use is reasonable - beneficial, will not adversely impact presently
existing legal uses and is consistent with the public interest. The use
is further subject to 28 limiting conditions.
APPLICATION REVIEWER: U ,11t-ai1— 1 1,— -d DATE: (F130/co
Thomas Colios
SUPERVISOR: /�a`�z DATE: a /30 193
Jeffrey Rosenfeld V
WATER USE DIVISION APPROVAL: / /3 . DATE: OC)/3
m. Scott Burns, P.G.
'R .
Subject to Governrn .
Board Appr;7\aa1 ��
11
STATE OF FLORIDA
SOUTH FLORIDA WATER MANAGEMENT DISTRICT
CITY OF OKEECHOBEE,
Petitioner,
vs.
SOUTH FLORIDA WATER MANAGEMENT
DISTRICT and OKEECHOBEE BEACH
WATER ASSOCIATION, INC.,
Respondents.
CASE NO.: 93-
Permit Application No.
921204 -10
PETITION FOR FORMAL ADMINISTRATIVE HEARING
Petitioner, CITY OF OKEECHOBEE, through its undersigned
counsel, pursuant to Section 120.57(1), Fla. Stat., and Florida
Administrative Code Rule 40E- 1.521, hereby requests a formal
administrative hearing and in support thereof states:
PARTIES
1. The agency affected by this cause is the South Florida
Water Management District ( "District "), 3301 Gun Club Road, West
Palm Beach, Florida 33416 -4680. The District's file number for
this matter is Application No. 921204 -10, Wellfield for Okeechobee
Beach Water Association, Inc., Okeechobee County.
2. The Okeechobee Beach Water Association, Inc. ( "OBWA" or
"Association "), a not- for - profit association, is the applicant to
the District for a water use permit ( "Permit ") under the above -
referenced application number. The address of OBWA is 8840 Highway
78 West, Okeechobee, FL 34974.
3. Petitioner is the City of Okeechobee ( "City "), a
municipality and local government as defined by Section 180.01, and
Fortner Affidavit
EXHIBIT F
163.3164(13) Fla. Stat. (1993), respectively. The City's address
is 55 Southeast 3rd Avenue, Okeechobee, FL 34974.
THE CITY'S SUBSTANTIAL INTERESTS ARE AFFECTED BY THE
ISSUANCE OF THE PERMIT TO OBWA
4. The City currently provides potable water under District
Water Use Permit No. 47- 00004 -W (copy attached hereto as Exhibit
"A" and incorporated by reference herein) to its citizens as well
as to other customers located outside the City's boundaries but
within the service area established by the City for this purpose
under Chapter 180, Fla. Stat. The City has provided in the past
and continues to provide to OBWA potable water through the terms of
a bulk sale agreement. OBWA then distributes the water through its
water distribution system to its members. In its application for
the subject Permit, OBWA is seeking to construct a wellfield and
water treatment plant so as to supply water to a proposed service
area which includes portions of Okeechobee County. The water is to
be withdrawn from the same aquifer as that utilized by the City
under its Water Use Permit. The service area proposed to be served
by OBWA overlaps the service area established by the City.
5. The issuance of the Permit by the District to OBWA will
affect the substantial ,interests of the City because it will result
in a significant reduction in the allocation of water to the City
under its water use permit and, as such, will interfere with the
existing legal use of water by the City.
6. The issuance of the Permit will also be inconsistent with
the public interest of the citizens of the City and Okeechobee
2
County since it will result in an inefficient and uneconomical
utilization of water resources.
7. The City is statutorily mandated to comprehensively plan
so as to: encourage the most appropriate use of water consistent
with the public interest; facilitate the adequate and efficient
provision of water; indicate ways to provide for future potable
water, sanitary sewer, and aquifer recharge protection
requirements; conserve and protect natural resources including
water, water recharge areas, wetlands and waterwells; and to assure
the continued availability of water through public supplies. The .
City is also statutorily mandated to cooperate intergovernmentally
with the District and other governmental entities in order to meet
the water needs of rapidly urbanizing areas in a manner which will
supply adequate and dependable supplies of water where needed
without resulting in adverse effects upon the areas from whence
such water is withdrawn. Consistent with these statutorily
mandated planning and intergovernmental cooperation
responsibilities, the legislature has designated municipalities,
including the City, as among the group of local governmental
entities which have primary responsibility for public water supply.
8. The City has complied with and implemented its planning
and intergovernmental cooperation responsibilities. As a result,
the City constructed a second water treatment facility, and the
projected potable water demands of Okeechobee County are being met,
including the water demands of the OBWA. The City also provides
sanitary sewer services to its citizens as well as to other
3
customers located within the designated service area. Although
OBWA does not currently provide sanitary sewer services within its
proposed service area; water is proposed to be withdrawn from, and
will be returned, primarily via septic tank systems to the same
aquifer as that utilized by the City under the City's Water User
Permit.
9. The City has a substantial interest in the quality,
quantity and availability of its water supply. This interest will
be adversely affected by the issuance of the Permit to OBWA. The
issuance of the Permit by the District to OBWA will affect the
substantial interests of the City because it will result in a
significant reduction in the allocation of water to the City under
its water use permit, and, as such, will interfere with the
existing legal use of water by the City. The issuance of the
Permit will be inconsistent with the public interest of the
citizens of the City and Okeechobee County since it will result in
an inefficient and uneconomical utilization of land and potable
water and sanitary sewer resources. The City has expended
substantial sums to plan for, design and construct the potable
water facilities, infrastructure and staff to provide water to OBWA
and to the City's other customers in the City's service area, and
has bond obligations as a result of this investment. The revenues
from the sale of potable water to the City's customers are pledged
to these bond obligations. The issuance of the Permit to OBWA with
the service area as proposed by OBWA will result in the'removal of
OBWA and its members from the City's service area which will have
4
a substantial negative impact on the City's remaining customers,
depriving them and the City of necessary revenues to meet the
financial, planning and intergovernmental cooperation obligations
incurred for the benefit of OBWA.
NOTICE
10. The City received on September 1, 1993 through the U. S.
Mail a notice of the District Staff Report, which addresses the
permit application and which contains a recommendation by staff to
the Governing Board to grant said permit, and a copy of the Notice
of Rights.
A copy of the Staff Report is attached hereto as
Exhibit "B" and incorporated by reference herein.
BACKGROUND
Conflicting Service Area Claims
11. Pursuant to Section 3.1.1, as set forth in the Basis of
Review for Water Use Permit Applications within the South Florida
Water Management District - January, 1993 ( "Basis of Review "),
"applicants must have legal control over the activities ... for
which they desire a permit. This includes service areas for public
water supply ... ." (Emphasis added.)
12. Under Section 3.1.1.1.5 of the Basis of Review,
"conflicting service area claims between Applicants or between
Applicant and an unregulated water service area, must be resolved
by the involved parties. Unresolved disputes will prompt'the staff
to recommend an allocation based only on the non - disputed portions
5
of the projected service area." (Emphasis added.) As recently as
May 20, 1993, District staff informed OBWA that "conflicting
service area claims between applicants, or between an applicant and
an unregulated service area, must be resolved by the involved
parties."
(A copy of this correspondence is attached hereto as
Exhibit "C," incorporated by reference herein.)
13. The City's service area is an unregulated water service
area.
14. The Basis of Review is incorporated by reference into
Florida Administrative Code Rule 40E- 2.091(1) and as such
constitutes a rule in and of itself. Therefore, Section 3.1.1 and
Section 3.1.1.1.5 set forth in the Basis of Review must also be
considered as rules. It is axiomatic that all properly promulgated
rules of an agency must be presumed to be valid. It is also well -
established that an agency is bound to follow its own rules.
15. OBWA has filed in the Circuit Court in Okeechobee County
a Complaint for Declaratory Judgment to try to resolve the claims
of OBWA and the City as to the service areas.
Complaint
reference
is attached hereto as Exhibit "D,"
herein.)
As stated in the Complaint
(A copy of the
incorporated by
at paragraph 17,
"The Plaintiff (OBWA) and Defendant (City) are unable to agree on
their respective service areas after the existing bulk water supply
contract expires." Furthermore, as stated in paragraph 18 of the
Complaint, "Plaintiff and the Water Management District are in
doubt as to the service areas Plaintiff and Defendant may legally
serve after the existing bulk water supply contract expires." It
6
is undisputed between the parties that there exists a conflicting
claim between OBWA and the City regarding the service area.
Accordingly, under the District's own rules these conflicting
claims must be resolved before the Permit can be issued. Or, in
the alternative, the allocation to OBWA in the Permit must be
reduced and be based only on the non - disputed portions of the
projected service area.
Reasonable Beneficial Use
16. Under Section 373.223(1)(a), Fla. Stat., an applicant for
a Consumptive Use Permit must establish that the proposed use of
water is a reasonable - beneficial use as defined in Section
373.019(4).
17. Under Section 373.019(4), Fla. Stat., reasonable -
beneficial use is defined to mean "the use of water in such
quantity as is necessary for economic and efficient utilization for
a purpose and in a manner which is both reasonable and consistent
with the public interest." (Emphasis added.)
18.' Under Rule 40E- 2.301(1)(e), an applicant must give
reasonable assurances that the proposed water use "is otherwise a
reasonable - beneficial use as defined in Section 373.019(4) and Rule
17- 40.040 (now renumbered as 17- 40.401)."
19. Rule 17- 40.401(2), provides that "in determining whether
a water use is a reasonable - beneficial use, the following factors
will be considered:
(a) The quantity of water requested for the use;
7
(b) The demonstrated need for the use;
(e) The extent and amount of harm caused;
(g) Whether the impact of the withdrawal extends to
land not owned or legally controlled by the user;
(h) The method and efficiency of use;
Interference with Presently Existing Legal Use
20. Under Section 373.223(1) (b) , an applicant for a water use
permit must establish that the proposed use of water "will not
interfere with any presently existing legal use of water."
21. Under Rule 40E- 2.301(f), an applicant must give
reasonable assurance that the proposed water use "will not
interfere with presently existing legal uses."
Consistent with the Public Interest
22. Under Section 373.223(1)(c), an applicant must establish
that the proposed use of water "is consistent with the public
interest."
23. Under Rule 40E- 2.301(1)(i), an applicant must give
reasonable assurances that the proposed water use "is consistent
with Sections 373.016, 373.036, Fla. Stat., and Rules 17- 40.001,
17- 40.030, 17- 40.040 and otherwise in accordance with the public
interest."
8
24. Section 373.036(2)(b) provides that consideration be
given to "the maximum economic development of the water resources
consistent with other uses."
25. Section 373.036(2)(e) provides that consideration be
given to "the prevention of wasteful, uneconomical, impractical, or
unreasonable use of water resources."
26. Under Rule 17- 40.040 (now renumbered as 17- 40.401):
(1) No permit shall be granted to authorize the use of
water unless the applicant establishes that the
proposed use is a reasonable - beneficial use, will
not interfere with presently existing legal uses of
water, and is consistent with the public interests.
(2) In determining whether a water use is a reasonable -
beneficial use, the following factors are to be
considered:
a. The quantity of water requested,
b. The demonstrated need for the use ...,
e. The extent and amount of harm caused ...,
g. Whether the impact of the withdrawal extends
to land not owned or legally controlled by the
user, and
h. The method and efficiency of use.
Disputed Issues of Fact and Law
27. Whether the District may grant to OBWA the subject
consumptive use permit prior to a resolution of the conflicting
9
service area claims.
28. If the District can grant the subject permit whether it
must reduce the allocation so that said allocation is based only on
the non - disputed portions of the projected service area.
29. Whether OBWA has provided adequate justification for the
quantity of water proposed to be used.
30. Whether the quantity of water proposed to be used is
necessary for the economic and efficient utilization by OBWA for
its purposes.
31. Whether OBWA has provided adequate demonstration of the
need for the use of the water.
32. Whether OBWA has adequately demonstrated the extent and
amount of harm resulting from the use of the proposed permit.
33. Whether OBWA has adequately demonstrated that the impact
of the withdrawal will not extend to land not owned or legally
controlled by OBWA.
34. Whether OBWA has adequately demonstrated the method and
efficiency of its proposed use of water under the proposed permit.
35. Whether the issuance of the Permit is consistent with
Sections 373.016, 373.036, Fla. Stat., Rules 17- 40.001, 17- 40.030,
17- 40.040, and otherwise in accordance with the public interest.
36. Whether the issuance of the Permit is consistent with the
economic development of the water resources of the state pursuant
to Section 373.036(2)(b), Fla. Stat.
37. Whether the issuance of the Permit is consistent with the
prevention of wasteful, uneconomical, impractical, or unreasonable
10
use of water resources of the state pursuant to Section 373.036(2)
(b), Fla. Stat.
38. Whether OBWA has provided reasonable assurance that the
proposed use of water is a reasonable beneficial use.
39. Whether OBWA has provided reasonable assurance that the
proposed use will not interfere with any presently existing legal
use of water.
40. Whether OBWA has provided reasonable assurance that the
proposed use of water is consistent with the public interest.
Ultimate Facts
41. Pursuant to Section 373.223(1), an applicant for a
Consumptive Use Permit is required to establish that the proposed
use of water:
(a) Is a reasonable beneficial use,
(b) Will not interfere with any presently existing
legal use of water, and
(c) Is consistent with the public interest.
42. Furthermore, Rules 40E -2 and 17- 40.401 set forth the
specific criteria under which the District is to review
applications for Consumptive Use Permits.
43. The issuance of the permit by the District to OBWA as
currently proposed without resolution of the conflicting claims
over the service area clearly demonstrates that OBWA has failed to
provide reasonable assurance that: (1) the proposed water use is a
reasonable - beneficial use, (2) that the proposed water use will not
11
interfere with the presently existing legal uses of water, and (3)
that the proposed water use is consistent with the public interest.
Rules and Statutes Supporting City's Claim for Relief
44. The City is entitled to relief under legal authorities
including, but not limited to, the following:
(a) Ch. 120, Fla. Stat.
(b) Ch. 163, Fla. Stat.
(c) Ch. 180, Fla. Stat.
(d) Ch. 373, Fla. Stat.
(e) Ch. 17 -40, F.A.C.
(f)
Ch. 40E, F. A. C.
WHEREFORE, based upon the foregoing, the City of Okeechobee
respectfully requests:
(a) That the District forward the City's Petition for
Formal Administrative Hearing to the Division of Administrative
Hearings;
(b) That a formal hearing be scheduled and conducted by
a hearing officer of the division of Administrative Hearings;
(c) That the hearing officer enter a recommended order
recommending denial of Permit Application Number 921204 -10; and
(d) That the South Florida Water Management District
enter a final order denying the subject permit.
12
Respectfully submitted by Federal Express Overnight Service
this 14th day of September, 1993, and by facsimile transmission
this 14th day of September, 1993.
Richard A. Lotspeich
FBN 593060
Fred McCormack
FBN 256676
LANDERS & PARSONS
P. O. Box 271
Tallahassee, FL 32302
(904) 681 -0311
and
Michael Wm. Morell
FBN 570280
310 W. College Ave.
Tallahassee, FL 32302
(904) 425 -8300
Counsel for City of Okeechobee
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that the original and one copy of this
Petition for Formal Administrative Hearing has been served by
Federal Express, Overnight Delivery, to the District Clerk, south
Florida Water Management District, 3301 Gun Club Road, West Palm
Beach, FL 33406 on this 14th day of September, 1993; one copy has
been served upon the District Clerk of the South Florida Water
Management District by facsimile transmission (407) 687 -6200, on
the 14th day of September, 1993; one copy has been served by U. S.
Mail on this 14th day of September, 1993 to the following persons:
13
<le I. Ross
.torney at Law
south Florida Water Management District
P. 0. Box 24680
West Palm Beach, FL 33416 -4680
Stephen A. Walker, Esq.
Messer, Vickers, Caparello, Madsen,
Lewis, Goldman & Metz
2000 Palm Beach Lakes Boulevard
Suite 900
West Palm Beach, FL 33409
14
SATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CITY OF OKEECHOBEE,
Petitioner,
vs. ) CASE NO. 93 -5505
)
SOUTH FLORIDA WATER MANAGEMENT )
DISTRICT and OKEECHOBEE BEACH )
WATER ASSOCIATION, INC., )
)
Respondents.
ORDER O: l'ZNDING MOTIONS
AND PLACING CASE IN ABEYANCE
This cause having come before the undersigned on
Respondent's Motion to Dismiss filed October 5, 1993, by
Okeechobee Beach Water Association, Inc.; on the Motion
Dismiss for Lack of Standing filed October 12, 1993, by
Respondent South Florida Water Management District; on the
Request for Oral Argument filed October 12, 1993, by Respondent
South Florida Water Management District; on the City of
Okeechobee's Response to Okeechobee Beach Water Association,
Inc.'s, Motion to Dismiss filed October 14, 1993; on Petitioner's
Motion to Abate filed October 11, 1993; on South Florida Water
Management District Response to City of Okeechobee's Motion to
Abate filed October 22, 1993; on Respondent's Response to
Petitioner's Motion to Abate filed October 22, 1993, by
Okeechobee Beach Water Association, Inc.; on City of Okeechobee's
Motion to Tike the South Florida Water Management District's
Motion to Dismiss for Lack of Standing filed October 19, 1993; on
Petitioner's Request for Leave to Amend Petition For Formal
Fortner Affidavit
EXHIBIT G
Administrative Hearing filed October 21, 1993; on Respondent's
Response to City of Okeechobee Motion to Strike Respondent South
Florida Water Management District's Motion to Dismiss filed
November 2, 1993; on the Motion to Deny Request for Leave to
Amend City of Okeechobee's Petition for Administrative Hearing
filed by South Florida Water Management District November 2,
1993; and on Respondent's Response to Petitioner's Request for
Leave to Amend Petition for Formal Adn-,n ist.rative Hearing filed
November 2, 1993, by Okeechobee Beach Water Association, Inc; and
the undersigned having reviewed the record in this cause and
being fully advised in the premises, it is, therefore,
ORDERED that:
1. The Request for Oral Argument filed by Respondent South
Florida Water Management District be and the same is hereby
DENIED.
2. The Motion to Dismiss for Lack of Standing filed by
Respondent South Florida Water Management District be and the
same is hereby DENIED.
3. Respondent's Motion to Dismiss filed by Okeechobee Beach
Water Association, Inc., be and the same is hereby DENIED.
4. City of Okeechobee's notion to Strike the South Florida
Water Management District's Motion to Dismiss for Lack of
Standing be and the same is hereby DENIED.
5. Petitioner's Request for Leave to Amend Petition for
Formal Administrative Hearing be and the same is hereby GRANTED.
6. Petitioner's Motion to Abate be and the same is hereby
GRANTED.
2
7. The Motion to Deny Request for Leave to Amend City of
Okeechobee's Petition for Administrative nearing be and the same
is hereby DENIED.
8. No later than 90 days from the date of this Order and
every 90 days thereafter the parties shall confer and advise the
undersigned in writing as to the status of Case No. 93- 555 -CA
pending in the Circuit Court In and For Okeechobee County,
Florida, as to the status of this matter, as to the need for a
formal hearing in this cause, as to the length of time required
for the formal hearing should one be necessary, and as to several
mutually agreeable da,:es for scheduling the formal hearing if
this cause is ready for so scheduling.
DONE AND ORDERED in Tallahassee, Leon County, Florida, this
day of November 1993.
Copies furnished:
Richard A. Lotspeich, Esquire
Fred McCormack, Esquire
Landers & Parsons
Post Office Box 271
Tallahassee, Florida 32302
Michael W. Morell, Esquire
310 West College Avenue
Tallahassee, Florida 32302
LINDA M. R I GOT
Hearing Officer
Division of Administrative Hearings
The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399 -1550
(904) 488 -9675
Filed with the Clerk of the
Division bf Administrative Hearings
this 1C` day of November • 1993 .
3
SEP241993
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL PROTECTION
In the Matter of an
Application for Permit by:
Mr. Leland Pearce, President DEP File No. WC 47- 227728
Okeechobee Beach Water Assoc. (OBWA) Okeechobee County
8840 Highway 78 West
Okeechobee, FL 34974 -9787
INTENT TO ISSUE
The Department of Environmental Protection gives notice of its Intent to Issue a
permit (draft copy attached) for the proposed project as detailed in the application
specified above. The Department is issuing this Intent to Issue for the reasons stated
below.
The applicant, Mr. Leland Pearce, President of Okeechobee Beach Water Association
(OBWA) applied on March 12, 1993, to the Department of Environmental Protection (DEP) for
a permit to construct a new 1.5 MGD public water supply system to serve the existing OBWA
service area. The Department has permitting jurisdiction under Section 403, Florida
Statutes (F.S.). The project is not exempt from permitting procedures. The Department
has determined that a construction permit is required for the proposed work.
Pursuant to Section 403.815 of the Florida Statutes (F.S.), and the Department Rule
17- 103.150, Florida Administrative Code (F.A.C.), you (the applicant) are required to
publish at your own expense the enclosed Notice of Intent to Issue Permit. The notice
shall be published one time only within 30 days, in the legal ad section of a newspaper of
general circulation in the area affected. For the purpose of this rule, "publication in a
newspaper of general circulation in the area affected" means publication in a newspaper
meeting the requirements of Sections 50.011 and 50.031, F.S., in the county where the
activity is to take place. The applicant shall provide original copy of the proof of
publication to the Department, at 1900 South Congress Avenue, Suite A, P.O. Box 15425,
West Palm Beach, Florida 33416 within seven days of publication. Failure to publish the
notice and provide proof of publication within the allotted time may result in the denial
of the permit.
PERM.INT.PN
Revised 9/93
Fortner Affidavit
EXHIBIT H
SEP 2 4 1993
Mr. Leland Pearce, President DEP File No. WC 47- 227728
Okeechobee Beach Water Assoc. Okeechobee County
Page 2 Intent to Issue
The Department will issue the permit with the specific conditions unless a petition
for an administrative proceeding (hearing) is filed pursuant to the provisions of Section
120.57, F.S.
A person whose substantial interests are affected by the Department's proposed
permitting decision may petition for an administrative proceeding (hearing) in accordance
with Section 120.57, F.S. The petition must contain the information set forth below and
must be filed (received) in the Office of General Counsel of the Department at 2600 Blair
Stone Road, Tallahassee, Florida 32399 -2400. Petitions filed by the permit applicant and
the parties listed below must be filed within 14 days of receipt of this Intent.
Petitions filed by other persons must be filed within 14 days of publication of the public
notice or within 14 days of their receipt of this Intent, whichever first occurs.
Petitioner shall mail a copy of the petition to the applicant at the address indicated
above at the time of filing. Failure to file a petition within this time period shall
constitute a waiver of any right such person may have to request an administrative
determination (hearing) under Section 120.57, F.S.
The Petition shall contain the following information:
(a) The name, address, and telephone number of each petitioner, the applicant's name
and address, the Department Permit File Number and the county in which the project is
proposed;
(b) A statement of how and when each petitioner received notice of the Department's
action or proposed action;
(c) A statement of how each petitioner's substantial interests are affected by the
Department's action or proposed action;
(d) A statement of the material facts disputed by petitioner, if any;
(e) A statement of facts which petitioner contends warrant reversal or modification
of the Department's action or proposed action;
(f) A statement of which rules or statutes petitioner contends require reversal or
modification of the Department's action or proposed action; and
(g) A statement of the relief sought by petitioner, stating precisely the action
petitioner wants the Department to take with respect to the Department's action or
proposed action.
If a petition is filed, the administrative hearing process is designed to formulate
agency action. Accordingly, the Department's final action may be different from the
position taken by it in this Intent. Persons whose substantial interests will be affected
by any decision of the Department with regard to the application have the right to
petition to become a party to the proceeding. The petition must conform to the
PERM.INT.PN
Revised 9/93
Mr. Leland Pearce, President
Okeechobee Beach Water Assoc.
Page 3
DEP File No. WC 47- 227728
Okeechobee County
Intent to Issue
requirements specified above and be filed (received) within 14 days of receipt of this
Intent, in the Office of General Counsel at the above address of the Department. Failure
to petition within the allowed time frame constitutes a waiver of any right such person
has to request a hearing under Section 120.57, F.S., and to participate as a party to this
proceeding. Any subsequent intervention will only be at the approval of the presiding
officer upon motion filed pursu nt to Rule 28- 5'.207, F).A.C.
DONE AND ENTERED this J - day of d ?Lt.Il.(1 } 19j) in the City of West
Palm Beach, Florida.
STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL PROTECTION
ry E.S. W ianis
irector of District anagement
P. 0. Box 15425
1900 South Congress Avenue
West Palm Beach, FL 33416
MESW:idt
Copies furnished to:
Office of General Counsel, DEP, Tallahassee
Okeechobee County Public Health Unit
Okeechobee County Engineer
Richard E. Wilson, P.E. - LBF &H, Inc. /Jupiter
Ted Robbins, P.E. - LBF &H, Inc. /Jupiter
Drinking Water Compliance /Enforcement Section, DEP /WPB
South Florida Water Management District
Wastewater Section, DEP /WPB
CERTIFICATE OF SERVICE
The undersigned duly designated deputy clerk hereby certifies that thi§ INTENT TO
ISSUE and all copies were mailed before the close of business on qtr 2 <i 199J to the
listed persons.
Clerk Stamp
FILING AND ACKNOWLEDGMENT
FILED, on this date, pursuant to S120.52(9), Florida Statutes, with the
deg gnated Department Clerk, receipt of which is hereby acknowledged.
/ l C�er) e /4.
•
SEP 2 4 1993
PERM.INT.PN
Revised 9/93
.; lorida Department of
Environmer.ital Protection
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Southeast District
P.O. Box 15425
West Palm Beach, Florida 33416
NOTICE OF PERMIT
Mr. Leland Pearce, President
Okeechobee Beach Water Association (OBWA)
8840 Highway 78 West
Okner-hohee, FL 34974 -9787
•
\'irl;inin 11. \j'rthrrrll
Sect rtarl
Okeechobee County
PW- Okeechobee Beach Water
Association (OBWA)
Public Water System
Dear fir. Pearce!
Enclosed is Permit Number DS 47- 233338 to construct a finished water main (dryline),
issued pursuant to Section 403, Florida Statutes.
Any party to this Order (permit) has the right to seek judicial review of the
permit pursuant to Section 120.68, Florida Statutes, by the filing of a Notice of
Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the Clerk of
the Department in the Office of General Counsel, 2600 Blair Stone Road, Tallahassee,
Florida 32399 -2400; and by filing a copy of the Notice of Appeal accompanied by the
applicable filing fees with the appropriate District Court of Appeal. The Notice of
Appeal must be filed within 30 days from the date this notice is filed with the Clerk
of the Department.
If you have any questions, please contact Iradj Dolatshahi of this office,
telephone 407/433 -2650.
Executed in west Palm Beach, Florida.
ttF$w: idt
STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL PROTECTION
Iiams
Direc r 7 of District Managembnt
1900 S,uth Congress Avenue
P. O. Box 15425
West Palm Beach, Florida 3347.6
Cnriers furnished to
Office of General Counsel, DEP, Tallahassee
Okeechobee County Public Health Unit
Okeechobee County Engineer
Ted Robbins, P.E. - LBF &H, Inc. /Jupiter
Drinking Water Compliance /Enforcement Section, DEP /WPB
CERTIFICATE OF SERVICE
This is to certify that this NOTICE OF PERMIT and all copies were mailed before the
close of business on • I•;:Jo to the listed persons.
Clerk Stamp
FILING AND ACKNOWLEDGMENT
FILED, on this date, pursuant to Chapter 120.52(9),
F1orlida Statutes, with the designated Department Clerk,
ry3eipt of which is hereby acknowledged.
CI rk— 1 1L_ �. zJ (' ( ' ,) i IS ate
"� 0 /
STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL PROTECTION
CITY OF OKEECHOBEE,
Petitioner,
vs.
FLORIDA DEPARTMENT OF ENVIRONMENTAL
PROTECTION and OKEECHOBEE BEACH
WATER ASSOCIATION, INC.,
Respondents..
CASE NO.: 93-
Permit Application No.
WC 47- 227728
PETITION FOR FORMAL ADMINISTRATIVE HEARING
Petitioner, CITY OF OKEECHOBEE, through its undersigned
counsel, pursuant to Section 120.57(1), Fla. Stat., and Florida
Administrative Code Rule 17- 103.155, hereby requests a formal
administrative hearing and in support thereof states:
PARTIES
1. The agency affected by this cause is the Florida
Department of Environmental Protection ( "Department "), 2600 Blair
Stone Road, Tallahassee, Florida 32399 -2400. The Department's
file number for this matter is Application No. WC 47- 227728.
2. The Okeechobee Beach Water Association, Inc. ( "OBWA" or
"Association "), a not - for - profit association, is the applicant to
the Department for a permit to construct a new 1.5 MGD water supply
system ( "Permit ") under the above - referenced application number.
The address of OBWA is 8840 Highway 78 West, Okeechobee, FL 34974.
3. Petitioner is the City of Okeechobee ( "City "), a
municipality and local government as defined by Section 180.01, and
r,-
Fortner Affidavit
EXHIBIT I
163.3164(13) Fla. Stat. (1993), respectively. The City's address
is 55 Southeast 3rd Avenue, Okeechobee, FL 34974.
THE CITY'S SUBSTANTIAL INTERESTS ARE AFFECTED BY THE
ISSUANCE OF THE PERMIT TO OBWA
4. The City currently provides potable water to its citizens
as well as to other customers located outside the City's boundaries
but within the service area established by the City for this pur-
pose under Chapter 180, Fla. Stat. The water is withdrawn from the
surficial aquifer under Water Use Permit No. 47- 00004 -W issued by
the South Florida Water Management District (copy attached hereto
as Exhibit "A" and incorporated by reference herein) and is treated
at the water treatment facility permitted by the Department under
Permit No. WC47- 214089 (copy attached hereto as Exhibit "B "). The
City has provided in the past and continues to provide to OBWA
potable water through the terms of a bulk sale agreement. OBWA
then distributes the water through its water distribution system to
its members.
5. In its application for the subject Permit, OBWA is seeking
to construct a water treatment and supply system so as to supply
water to a proposed service area which includes portions of Okee-
chobee County. The service area proposed to be served by OBWA
overlaps the service area established by the City.
6. It is the declared legislative policy pursuant to Section
403.851(3) that the Department "provide for safe drinking water at
all times throughout the state, with due regard for economic
factors and efficiency of government." (Emphasis added.)
2
7. In addition, the City is statutorily mandated under
Chapters 187 and 163, Florida Statutes, to comprehensively plan so
as to: encourage the most appropriate use of water consistent with
the public interest; facilitate the adequate and efficient pro-
vision of water; indicate ways to provide for future potable water,
and aquifer recharge protection requirements; and to assure the
continued availability of water through public supplies. The City
is also mandated to cooperate intergovernmentally with other
governmental entities in order to meet the water needs of rapidly
urbanizing areas in a manner which will supply adequate and
dependable supplies of water where needed.
8. Consistent with these statutorily mandated planning and
intergovernmental cooperation responsibilities, the legislature has
designated municipalities, including the City, as among the group
of local governmental entities which have primary responsibility
for public water supply.
9. The City has complied with and implemented its planning
and intergovernmental cooperation responsibilities. As a result,
the City recently constructed a new water treatment facility, and
the projected potable water demands of Okeechobee County are being
met by this facility, including the water demands of the OBWA.
10. The issuance of the Permit will be contrary to the public
interest of the citizens of the City since it will result in an
inefficient and uneconomical utilization of potable water
resources. The City has expended substantial sums to plan for,
design and construct its potable water facilities and infra-
3
structure, and to hire staff to provide water to OBWA and to the
City's other customers in the City's service area. The City has
substantial bond obligations as a result of this investment. The.
revenues from the sale of potable water to the City's customers are
pledged to these bond obligations.
11. The issuance of the Permit to OBWA will also result in an
uneconomical and wasteful race between the City and OBWA (in which
capital investment will be unnecessarily duplicated) to provide
service to those areas in the overlapping service area not pre-
sently served by either the City or OBWA.
NOTICE
12. The City received notice of the Department's intended
action on October 1, 1993 through the publication of a notice in
the Okeechobee News of the Department's Intent to Issue the subject
permit. The City also received a copy of the Department's Intent
to issue by U.S. Mail on October 5, 1993. A copy of the Intent to
Issue along with the Draft Permit is attached hereto as Exhibit "C"
and incorporated by reference herein.
Disputed Issues of Fact
13. Whether, in proposing to issue the subject Permit, the
Department has given due consideration to the economic factors and
the efficiency in government.
14. Whether the issuance of the Permit will result in the
wasteful, uneconomical, impractical, or unreasonable use of water
4
resources of the state.
Ultimate Facts
15. Pursuant to Section 403.851(3), Fla. Stat., the Depart-
ment must give due consideration to economic factors and the
efficiency of government in determining whether to issue permits
for water supply systems.
16. In the instant case, the Department has given no con-
sideration to the economic factors associated with the issuance of
the permit to OBWA. Furthermore, the Department has given no
consideration to the inefficiency of government that will result
from the issuance of the permit to OBWA.
17. The construction of the water supply system as proposed
to be authorized by the subject permit will result in an uneconomi-
cal, inefficient and wasteful use of public resources.
Rules and Statutes Supporting City's Claim for Relief
18. The City is entitled to relief under legal authorities
including, but not limited to, Chapters 120 and 403, Fla. Stat.
WHEREFORE, based upon the foregoing, the City of Okeechobee
respectfully requests:
(a) That the Department forward the City's Petition for
Formal Administrative Hearing to the Division of
Administrative Hearings;
(b) That a formal hearing be scheduled and conducted by
a hearing officer of the Division of Administrative
5
(c)
Hearings;
That the hearing officer enter a recommended order
recommending denial of Permit Application Number WC.
47- 227728; and
(d) That the Florida Department of Environmental
Protection enter a final order denying the subject
permit.
Respectfully submitted by Hand Delivery this 14th day of
October, 1993.
Richard A. Lots
FBN 593060
Fred McCormack
FBN 256676
LANDERS & PARSONS
P. O. Box 271
Tallahassee, FL 32302
(904) 681 -0311
and
Michael Wm. Morell
FBN 570280
310 W. College Ave., Room 222
Tallahassee, FL 32302
(904) 425 -8300
Counsel for City of Okeechobee
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that the original and one copy of this
Petition for Formal Administrative Hearing has been served by hand
delivery, to the Office of General Counsel, Department of
Environmental Protection, 2600 Blair Stone Road, Tallahassee, FL
6
32399 -2400 on this 14th day of October, 1993; one copy has been
served by U. S. Mail on this 14th day of October, 1993 to Stephen
A. Walker, Esq., Messer, Vickers, Caparello, Madsen, Lewis, Goldman
& Metz, 2000 Palm Beach Lakes Boulevard, Suite 900, West Palm
Beach, FL 33409
7
Attory
RE: AFFIDAVIT OF L.C. FORTNER in support of
Plaintiff's Motion For Partial Summary Judgment
EXHIBITS J, K and L are too large and bulky
to be stapled to the affidavit
5 \0T3 \CITY\FORTNER.AFF 6
IN THE CIRCUIT COURT FOR OKEECHOBEE COUNTY, FLORIDA
OKEECHOBEE BEACH WATER
ASSOCIATION, INC.,
Plaintiff,
vs.
CITY OF OKEECHOBEE, FLORIDA,
Defendant.
CASE NO: 93 -555 CA
PLAINTIFF'S MOTION REQUESTING SUBMISSION
OF WRITTEN MEMORANDUMS
(Without Hearing)
Plaintiff moves without hearing for an order directing the parties to file written
memorandums of law in support of their respective positions on Plaintiff's Motion for Partial
Summary Judgment prior to the hearing scheduled for February 1, 1994.
As grounds for this motion, Plaintiff asserts that due to the shortage of time on the Court's
calendar for lengthy hearings, the Court will be in a better position to properly rule upon Plaintiffs
Motion for Partial Summary Judgment if it has the benefit of written memorandums of law.
Plaintiff suggests that the Court require Plaintiff to file its memorandum of law no later than
January 24, 1994 and Defendant CITY to file its memorandum of law no later that January 28, 1994.
Plaintiff further moves the Court for an order requiring Defendant CITY OF
OKEECHOBEE to file any affidavits or items of record opposing Plaintiff's Motion For Partial
Summary Judgment no later than January 21, 1994. Plaintiff served its Motion For Partial Summary
Judgment and supporting affidavits on Defendant CITY on December 29, 1993. Defendant CITY
is entitled to 20 days notice of the motion and supporting affidavits prior to the hearing. Requiring
Defendant CITY to file any affidavits or items of record opposing the motion by January 21, 1994,
will give Defendant CITY at least 20 days to respond by filing opposing affidavits or items of record,
and it will also allow Plaintiff time to prepare and file its memorandum of law in support of the
motion in advance of the hearing.
(See next page for certificate of service and signature)
5 \ob \city \writmcmo.mot 1
I HEREBY CERTI FY that a true copy of the foregoing has been furnished to John R.
Cook, Attorney for Defend;.nt CITY, by hand delivery on December a-7 , 1993, and to John D.
Cassels, Jr., Attorney for D(:fendant COUNTY, by hand delivery on December , 1993.
B RTON C. CONNER
BURTON C. CONNER, P.A.
Florida Bar No. 0254551
301 Northwest Fifth Street
Okeechobee, Florida 34972
813 - 467 -8800
5 \ob \city \writmcmo.mot 2
IN THE CIRCUIT COURT FOR OKEECHOBEE COUNTY, FLORIDA
OKEECHOBEE BEACH WAIER
ASSOCIATION, INC., CASE NO: 93 -555 CA
Plaintiff,
vs.
CITY OF OKEECHOBEE, FLORIDA,
Defendant.
NOTICE OF HEARING
TO: CITY OF OKEECHOBEE
c/o John R. Cook, Esq.
202 Northwest 5th Ave.
Okeechobee, FL 34972
COUNTY OF OKEECHOBEE
c/o John D. Cassels, Jr., Esq.
400 Northwest 2nd St.
Okeechobee, FL 34972
PLEASE TAKE NOTICE that on February 1, 1994, at 11:00 a.m. or as soon
thereafter as counsel may be heard, the undersigned will call up to be heard before the
Honorable William L. Hendry, a judge of the above Court, at the Okeechobee County
Courthouse, Okeechobee, Florida, the following:
MOTION FOR PARTIAL SUMMARY JUDGEMENT.
TIME RESERVED: 1 hour
PLEASE GOVERN YOURSELF ACCORDINGLY.
I HEREBY CERTIFY that a true copy of the foregoing was served on the above -
named person(s) by hand delivery this 30th day of December, 1993.
cc: Okeechobee Court Reporters
Judge William L. Hendry
1 \ob \city\utf- hear.psj
BURTON C. CONNER
BURTON C. CONNER, P.A.
Florida Bar No. 0254551
301 Northwest Fifth Street
Okeechobee, Florida 34972
813 - 467 -8800
1
IN THE CIRCUIT COURT FOR OKEECHOBEE COUNTY, FLORIDA
OKEECHOBEE BEACH WATER
ASSOCIATION, INC., CASE NO: 93 -555 CA
Plaintiff,
vs.
CITY OF OKEECHOBEE, FLORIDA,
Defendant.
ORDER ON PLAINTIFF'S MOTION REQUESTING SUBMISSION
OF WRITTEN MEMORANDUMS
(Without Hearing)
This matter came before the Court upon Plaintiff's Motion Requesting Submission of Written
Memorandums (Without Hearing). Upon consideration of the Motion, it is,
ORDERED AND ADJUDGED that Plaintiff and Defendant CITY shall file written
memorandums of law in support of their respective positions on Plaintiff's Motion for Partial
Summary Judgment. Plaintiff shall file its memorandum of law no later than January 24, 1994 and
Defendant CITY shall file its memorandum of law no later that January 28, 1994.
FURTHER ORDERED AND ADJUDGED that Defendant CITY shall file any affidavits
or items of record opposing Plaintiff's Motion for Partial Summary Judgment no later than January
21, 1994.
DONE AND ORDERED this day of , 19_ at Okeechobee,
Florida.
William L. Hendry, Circuit Court Judge.
Copies to:
Burton C. Conner, Esq.
John R. Cook, Esq.
John D. Cassels, Jr., Esq.
5 \ob \city Vvritmcmo.odr 1
IN THE CIRCUIT COURT FOR OKEECHOBEE COUNTY, FLORIDA
OKEECHOBEE BEACH WATER
ASSOCIATION, INC., CASE NO: 93 -555 CA
Plaintiff,
vs.
CITY OF OKEECHOBEE, FLORIDA,
Defendant.
NOTICE OF HEARING
TO: CITY OF OKEECHOBEE
c/o John R. Cook, Esq.
202 Northwest 5th Ave.
Okeechobee, FL 34972
COUNTY OF OKEECHOBEE
c/o John D. Cassels, Jr., Esq.
400 Northwest 2nd St.
Okeechobee, FL 34972
PLEASE TAKE NOTICE that on February 1, 1994, at 11:00 a.m. or as soon
thereafter as counsel may be heard, the undersigned will call up to be heard before the
Honorable William L. Hendry, a judge of the above Court, at the Okeechobee County
Courthouse, Okeechobee, Florida, the following:
MOTION FOR PARTIAL SUMMARY JUDGEMENT.
TIME RESERVED: 1 hour
PLEASE GOVERN YOURSELF ACCORDINGLY.
I HEREBY CERTIFY that a true copy of the foregoing was served on the above -
named person(s) by hand delivery this 30th day of December, 1993.
cc: Okeechobee Court Reporters
Judge William L. Hendry
1 \ob \city\ntf -he ar.p sj
Avia„,
BURTON C. CONNER
BURTON C. CONNER, P.A.
Florida Bar No. 0254551
301 Northwest Fifth Street
Okeechobee, Florida 34972
813 - 467 -8800
1
.i
IN THE CIRCUIT COURT FOR OKEECHOBEE COUNTY, FLORIDA
OKEECHOBEE BEACH WATER
ASSOCIATION, INC., CASE NO: 93 -555 CA
Plaintiff,
vs.
CITY OF OKEECHOBEE, FLORIDA,
Defendant.
AFFIDAVIT OF LELAND PEARCE IN SUPPORT OF PLAINTIFF'S
MOTION FOR PARTIAL SUMMARY JUDGMENT
STATE OF FLORIDA
COUNTY OF OKEECHOBEE
BEFORE ME, the undersigned Notary Public, personally appeared LELAND PEARCE
("Affiant"), who upon being duly sworn, stated that the following facts are true:
1. Affiant is over 18 years of age and competent to make sworn statements.
2. Affiant has personal knowledge of the facts stated herein.
3. Affiant is and has been the President and Chairman of the Board of Directors of
Okeechobee Beach Water Association, Inc. ( "OBWA ") since 1965.
4. Attached hereto as Exhibits A and B are true and accurate copies of the Articles of
Incorporation for Okeechobee Beach Water Association, Inc. and the only amendment thereto, the
original of both having been filed with the Florida Department of State. Exhibits A and B were
obtained from the corporate records of OBWA.
5. Sincc 1965, OBWA has owned and operated a system of pipes, tanks, valves, meters
and pumps in southern Okeechobee County and has supplied its members with potable water.
6. Since 1970, the Board of Directors of OBWA has relied upon the boundary line
between OBWA's consumer territory and CITY's consumer territory, as memorialized in the 1970,
5\OB \CITY\PEARCE.AFF 1
1977 and 1985 bulk water contracts between the parties, in making decisions about capital
improvements to OBWA's system.
L LA PEARCE
SWORN TO AND SUBSCRIBED before me on December , 1993, by LELAND
PEARCE, who is personally known to me.
COMMISSION EXPIRATION AND SEAL:
NOTARY PUBLIC, STATE OF FLORIDA
5\OB\CITY\PEARCE.AFF 2
Armee
tiatro of JFf1a
' crrtarlj of Otatt
9, vom Adams, Secretary of -State of the State of 3lorida,
Do Hereby Certify Shat the following is a true and correct copy of
Certificate of 9ncorporation
of
OKEECIIOBEE BEACH WATER ASSOCIATION, INC.,
a corporation not for profit orq.11113ed and existing under the L',uvs of the
State Of 3lorida, filed on the loth day of September,
A.D., 19 64, as s6oum 6y (6e records of t(iis office.
cn, p.94
3 -66
Given under uiiy timid and the ((real Seal of the
State of 3lorida, at 16 ail ahassee, the C',ipit,II,
this the llth (rail o, December,
A.U. 19 67.
Seere(,Irlt ((1 Sia(e
Pearce Affidavit
EXHIBIT A
ARTICLES OF INCORPORATION
OI• •
OKEECHOBEE BEACH WATER ASSOCIATION, INC.
ARTICLE I.
The name of this corporation shall be OKEECHOB;_;E BEACH Wp•.iE
ASSOCIATION, INC., and shall be a non -- profit corporation organized
under Chapter 611, Florida Statutes, and shall have all powers given
to a non- profit corporation by the provisions of said Chapter 611, •
Florida Statutes.
ARTICLE II.
The nature of tho business of the corporation and the objects
and purposes for which it is organized are: I i' ✓
A. To construct, maintain, and operate a grater system for the
supplying of water for domestic, commercial, agricultural, industrial,,
and other purposes to its members and for the s'.1e of any srrplus
water remaining after the needs of its members have been satisfied y'
and to engage in any activity related thereto, including but not
limited to the acquisition of water by appropriation, drilling, punpi.n;,
and /or purchase, and the purchase laying, institution, operation,
maintenance, and repair of wells, pumping equipment, water mains,
pipelines, valves, meters, and all other equipment necessary to tha
construction, maintenance and operation of a water system, and
B. To construct, maintain, and operate a sewage di.sposal system
for the use and benefit of its members.
ARTICLE
The members of the corporation shall be the subscribers hereto
and all other persons, partnerships, corporations, or other legal
entities having a reasonable accessibility to the sources of and who
desire to have water and other services supplied for domestic,
conunercial, agricultural., industrial, or other uses from the systems
constructed, maintained, and operated by the corporation. The
corporation shall not be required to admit additional member` if the
capacity of its water system is'exhausted by the needs of its
existing members and such other persons to whom it has been supplying
water.
ARTICLE IV.
This corporation shall have perpetual existence.
ARTICLE V.
The names and residence of the Ysubscribers to these Articles of
Incorporation are as follows:
LELAND PEARCE
V. M. LIGIiTSEY
CURTIS E.. WRIGHT
JAMES T. KINCHEN
DEWI1T UPTUUUGROVE
R. H. HONEYCUTT
FRED JUDGE
The
Directors
number of
ROUTE 1, Box 84
P. 0. Box :311
P. 0. Box 655
ROUTE 1,
iiOUTE 1,
ROUTE 1.,
ROUTE 1,
Box 72
Box $4C
Box 1107.
Box 103
0KEEC11ODEE ,
OIC1 � CIIOB1: ,
-1.;r!; ei3EE ,
OhE E6i id BEE,
UKEECIIO13FA;;,
OI.EEC HOB EE,
OREECIfOB CE,
FLORIDA
FLORIDA
FLORIDA
FLORIDA
FLORIDA
FLORIDA
FLORIDA
ARTICLE VI.
affairs of the corporation are to be manaced by a Board of
of not less than three nor more than nine members. The
directors shall be determined by tho by- laws. They shall
elected at the annual meeting of the members and shall hold office
for one year or until their successors are elected.
ARTICLE VII;.
The officers who shell serve until the first election or until
their successors are elected shall be as follows:
LELAND PEARCE
FRED JUDGE
TESTER W. JENNIUGS
PRESIDENT
VICE PRSIDEW'r
SE C R E TA UY _ TR E ,i.^ tiR E R
be
The term of office of the foregoing officers shall be for a
period of one year or until their successors are elected. The
officers shall be elected by the Board of Directors.
ARTICIk; VIII.
The first Board of Directors shall consist of seven members
who shall serve until the first election or until. their successors
and addresses of the members of the first
are elected. The
names
Board of Directors are as follows:
LELAND FEARCE
V. _ M. LIGI IT S EY
CURTIS E. WRIGHT
JAMES T. KINCHEN
DEWITT UPTHEGROVE
R. H. IIONEYCUTT
FILED JUDGE
ROUTE 1, Box 64.
P. O. Box. 3114.
P. 0. BOX 655
ROUTE 1, Box 72
ROUTE 1, Box $4C
ROUTE 1, Box 1102
ROUTE 1, Box 103
ARTICLE IX
OKEECHOB E, FLORIDA
01EECHOBrE, FLORIDA
QKE I Clli)BErE , FLORIDA
OKEEC}LO13Et , FLORIDA
OKEECHOBEE, FLORIDA
OKI:,ECHOBEE, FLORIDA
OKEECHOBEE, FLORIDA
The by -laws of the corporation shall be made by a majority vote
of the members present at the organizational meeting of•the members.
The by -laws may be altered, rescinded, or amended by a majority vote
of the members present at any annual meeting of the corporation, or by
majority vote of the members present at any special meeting of the
membership called for the special purpose of altering, rescinding, or
amending the by -laws and after written notice of said special rneet•i ig
has been furnished to the members by U. S. Mail to their last known .,
address at least 10 days prior to the date of the special meeting.
.,,.,:,:ca,.; be proposed osed. to
Amendments to these Articles of Incorporation may P P
the Board of Directors by a majority vote of the members of the
corporation. A majority of the members of the Board of Directors may
approve, amend or reject such proposals and sh<111 have final authority
to adopt any amendment.
ARTICI._F._XI .
Tho assets and income of this non-profit corporation shall be
ur
poses. No salaries or fees shall aid t:
utilized to promote its p p l.l.
the Directors or officers of this corporation as compensation for
serving as officers or directors, but nothing herein curtained shall
prevent the corporation from retaining said directors or officer in ot;
capacities and providing them with reasonable salaries or cormenaati.on
and nothing h"' -;ii
for their services rendered in the other capacities,
shall prevent the hiring of .employees or engaging of other to perform
services for the corporation or to prevent the reimbursement of any
person who makes outlays for the reasonable expenses of the
corporation. Provided, however, that should this corporation be
dissolved, nothing herein shall prevent the distribution of the
assets of the corporation to its members or the return of such assets
as may have been donated to the corporation to the donor thereof.
IN WITNESS WIIEREOF, we have made and subscribed these Articles
of Incorporaion, this 3rd Day of September, A. D. 1964.
7
J' �t
1ELAN1fl'EARCE �
- j'.///1//'
\r. .M. •L1GH'TSEY . •
CUft'1' S E. 1iRf(f i'1
:JAMES T. KINCHEN •
;/, . �.•
D-NaTT UP'I'}ILi GROVts
oyce•
Z. H. dONEYGUTJ.,4
F Th w JUDGE '
STATE OF FLORIDA
COUNTY OF O1:EEC}iOBEE
Be it remembered, that on this 3rd Day of September, A. D. 1964,
personally appeared before me, a Notary Public in and for the .State and
County aforesaid, LELAND PEARCE, V. M. LIGIITSEY, CURTIS E. WRIGHT,
JAMES T. KINCIIEN DE1ITT UPTHEGitOVE
known to me personally to be the
Individuals who executed the foregoing 1'.rt•icles of Incorporation and
acknowledged that they executed said Articles of Incorporation af; the
act and deed of the signers, respectively, and the facts therein stated
are truly set forth.
Given under niy hand and seal the day and year aforesaid.
. .)iC
r t ° .. t• f .. r•
F FLORIDA
DEPARTMENT OF STATE • DIVISION OF CORPORATIONS
1 certify that the following is a true and correct copy of
CERTIFICATE OF INCORPORATION.
OF
OKEECHOBEE BRACH WATER ASSOCIATION, INC.
'J'A Corporation Not For Profit
filed in this office on the 10th
19 64.
Charter Number:' •. 70779 .
day of
September,
I
GIVEN under my hand and the Great
Seal of the State of Florida, at
Tallahassee, the Capital, this the
5th ` day of May,
19 77 .
SECRETARY OF STATE
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ARTICLES OF AMENDMENT TO THE
ARTICLES OF INCORPORATION OF
OKEECIIOBEE BEACH WATER ASSOCIATION, INC.
Okeechobee Beach Water Association, Inc. a Florida non- profit corporation, amends its
Articles of Incorporation and says:
1. The name of the corporation is Okeechobee Beach Water Association,Inc.
2. On April 26, 1993, a special meeting of the membership was held, after proper
notice was given. A quorum of the membership was present at the special meeting.
3. Upon proper motion and a majority vote of the members present on April 26,
1993, the membership approved the amendment of Article II (A) of the Articles of
Incorporation of Okeechobee Beach Water Association to read as follows:
ARTICLE II
The nature of the business of the corporation and the object of and purlfspA v -t1
for which it is organized are: �,
A. To construct, maintain, and operate a water system for the
supplying of water for domestic, commercial, agricultural, 1 Q crA
`� --"•• '
industrial and other purposes to its members and to engage in : .., t
any activity related thereto, including but not limited to the 0 cp �
acquisition of water by appropriation, drilling, pumping and /or ,,,-p o
purchase, and the purchase laying, institution, operation, vin c5
maintenance, and repair of wells, pumping equipment water
mains, pipelines, valves, meters, and all other equipment
necessary to the construction, maintenance and operation of a
water system, and
4. Upon proper motion and a majority vote of the members present on April 26,
1993, the membership approved the amendment of Article III of the Articles of
Incorporation of Okeechobee Beach Water Association, Inc. to read as follows:
ARTICLE III
Tile members of the corporation shall be the subscribers hereto and all other
persons, partnerships, corporations, or other legal entities having a reasonable
accessibility to the sources of and who desire to have water and other services
supplied for domestic, commercial, agricultural, industrial, or other uses from
the systems constructed, maintained, and operated by the corporation. The
corporation shall not be required to admit additional members if the capacity
of its water system is exhausted by the needs of its existing members.
5. '1'1ic Board of Directors of Okeechobee Beach Water Associations, Inc. have
approved and adopted the above amendments to the Articles of Incorporation.
6. The number of votes cast by the meiubcrship and by the Board of Directors was
sufficient to approve the amendment to the Articles of Incorporation.
Dated this o?loday of April, 1993
Leland Pearce, President
A'ITFST:
Verna Gabriel, Secrelary
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I certify the attached is a true and correct copy of the Articles of Amendment,
filed on April 29, 1993, to Articles of Incorporation for OKEECHOBEE BEACH
WATER ASSOCIATION, INC., a Florida corporation, as shown by the records of
this office.
AVP
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Twenty-ninth bat, of 1993ti)e
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Pearce Affidavit �VLyVyJVVC�VCVC�VC
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EXHIBIT B C)t;, In \. iO\;,(ant;, 610,,,\5 „n ; r;in`,:;
ARTICLES OF AMENDMENT TO THE
ARTICLES OF INCORPORATION OF
O EECI-HOBEE BEACH WATER ASSOCIA.'I'ION INC.
Okeechobee Beach Water Association, Inc. a Florida non- profit corporation, amends its
Articles of Incorporation and says:
1. The name of the corporation is Okeechobee Beach Water Associat.ion,Ine.
2. On April 26, 1993, a special meeting of the membership was held, after proper
notice was given. A quorum of the membership was present at the special meeting.
3. Upon proper motion and a majority vote of the members present on April 26,
1993, the membership approved the amendment of Article II (A) of the Articles of
Incorporation of Okeechobee Beach Water Association to read as follows:
ARTICLE II
Ur)
-r. ,
I he nature of the business of the corporation and the object of and purl s ,
for which it is organized are: _
c�
A. To construct, maintain, and operate a water system for the i,-),,
supplying of water for domestic, commercial, agricultural, ,l l
industrial and other purposes to its members and to engage in
any activity related thereto, including but not limited to the c`= ��
•
acquisition of water by appropriation, drilling, pumping and/or ,_:., :) o
U
purchase, and the purchase laying, institution, operation, ill 0-'
maintenance, and repair of wells, pumping equipment water
mains, pipelines, valves, meters, and all other equipment
necessary to the construction, maintenance and operation of a
water system, and
4. Upon proper motion and a majority vote of the members present on April 26,
1993, the membership approved the amendment of Article III of the Articles of
incorporation of Okeechobee Beach Water Association, Inc. to read as follows:
ARTICLE III
The members of the corporation shall be the subscribers hereto and all other
persons, partnerships, corporations, or other legal entities having a reasonable
accessibility to the sources of and who desire to have water and other services
supplied for domestic, commercial, agricultural, industrial, or other uses from
the systems constructed, maintained, and operated by the corporation. The
corporation shall not be required to admit additional members if the capacity
of Its water system is exhausted by the needs of its existing members.
5. The Board of Directors of Okeechobee I3eac11 Water Associations, Inc. have
approved and adopted the above amendments to the Articles of Incorporation.
6. The number of votes cast by the membership and by the Board of Directors was
sufficient to approve the amendment to the Articles of Incorporation.
Dated this (96—clay of April, 1993
A.l_l_r ST.
Leland Pearce, President
1
Verna (,abriel, Secretary
dd \m isc \corresp \obwa -art
City of Okeechobee
55 S.E. Third Avenue • Okeechobee, Florida 34974 - 2932.813/763 -3372
September 8, 1993
Bonnie Thomas
Clerk, City of Okeechobee
55 S.E. 3rd Ave.
Okeechobee, Florida 34972
Re: August 23, 1993 meeting
Dear Bonnie:
Enclosed. Find the transcription from the court reporter for
the closed door meeting held by the City Council on August 23,
1993.
You may recall that under the new statute pertaining to public
records and the Sunshine statute, you must seal this transcript,
and it is not a public record for review at this time.
Once the Beachwater /City /County litigation is concluded, it is
opened at that time and available for inspection just like any
other City record.
Also, as it concerns this litigation, if you receive any
requests for public records directly, call me immediately and do
not release the record requested until I review them to see if they
fall within any exemption under Chapter 119.
Kindest
egards,
John R. Cook
JRC /jc
on)07, Its
•�wiilll
City of Okeechobee
55 S.E. Third Avenue • Okeechobee, Florida 34974 - 2932.813/763 -3372
August 30, 1993
John Drago
City Administrator
55 S.E. 3rd Ave.
Okeechobee, Fla. 34972
Re: OBWA vs. City
Dear John:
Attached please find our up to date billing on the OBWA_
lawsuit, through August, 1993.
The status of the case is that I have prepared and filed the
enclosed motion to dismiss the suit, for various deficiencies in
their pleadings. The court will hear this matter sometime within
the next month, I would imagine. If the matter is dismissed for any
of these reasons, they will be permitted to amend, at which time we
must file an answer.
I have been in touch with my brother's firm on this, and he is
prepared to come on board at the time an answer will be due. He is
arranging to send over a fee schedule to present to the City
Council.
Kindest Regards,
John R. Cook
JRC /rb
DATE
DESCRIPTION OF WORK TIME EXPENDED
August 4 Call from Conner
II call to councilmen (4) 2
rr 5
V review lawsuit 4
,r call to Morrell 6
II Fed -Ex suit to Morrell 3
call to Cassels
August 5 meet with Drago 5
5
call to RC
August 10 call to RC 2
August 13 conf /West Palm 3
August 16 call from Morrell 1 2
rr review FRCP 8
August 18 call from Morrell 2
r� meet w /Morrell 8
4
ur
legal research 6
call to RC
August 19 call from RC 2
lr research /motion dismiss 4
r� meet with Burton 1 2
August 20 first draft motion dismiss 4
August 23 legal research 1 4
call from Mike 3
call to Drago 4
it
rr call to Burton 2
meeting w /council 2
August 24 call from Burton 1 2
August 25 call to Reese 2
iii 2
call from Reese 2
u research Ch. 120 5
redraft motion 8
,m letter to RC
FAX to RC 2
August 26 finalize motion 3
�� LT Burton 5
August 27 --.,, t___ - -- Reese 2
TOTAL' hours:
16.20 hrs.
Recap: 16.20 hrs. @ $75.00 /Hr.= $1,215.00
LANDERS & PARSONS
CINDY L. BARTIN
JOSEPH W. LANDERS, JR.
JOHN T. LAVIA, III
RICHARD A. LOTSPEICH
FRED A. McCORMACK
PHILIP S. PARSONS
HOWELL L. FERGUSON
OF COUNSEL
VICTORIA J. TSCHINKEL
SENIOR CONSULTANT
(NOT A MEMBER OF THE FLORIDA BAR)
John R. Cook
City Attorney
City of Okeechobee
202 N. W. 5th Avenue
Okeechobee, FL 34972
Dear Mr. Cook:
ATTORNEYS AT LAW
FAXED
September 7, 1993
310 WEST COLLEGE AVENUE
POST OFFICE BOX 271
TALLAHASSEE, FLORIDA 32302
TELEPHONE (904) 681 -0311
TELECOPY (904) 224 -5595
We are very pleased that you have chosen to retain us as
counsel in connection with the challenge to the consumptive use
permit proposed to be issued by the South Florida Water Management
District to Okeechobee Beach Water Association, Inc. This letter
describes the basis on which our firm will provide legal services
to you and how we will be compensated for our services.
As a partner in the firm, I will have primary responsibility
for the representation and will utilize other attorneys and legal
assistants in the office in the best exercise of my professional
judgment. Michael Morell will be working with me as co- counsel in
this case. If, at any time, you have questions, concerns, or
criticisms, please contact me at once.
Our fees for this matter will be based on a schedule of hourly
rates. The schedule of hourly rates for attorneys and other
members of the professional staff is based on years of experience,
specialization in training and practice, and level of professional
attainment. My hourly rate for this matter will be $115.00, and,
to the extent that other attorneys and legal assistants are
involved, their rates will vary from $90 to $115 an hour.
At this time, I estimate that our fees for the preparation and
filing of the petition for administrative hearing and initial
settlement discussions will be between $5,000 and $10,000. If it
is necessary to litigate this matter in an administrative hearing,
I estimate that our fees will be between $40,000 and $50,000.
In addition to the fees, our bills will include charges for
out -of- pocket expenses such as travel, meals, filing fees, etc.
Any extraordinary expenses such as deposition costs, printing
costs, advertising costs, etc., will be billed directly to you.
A surcharge of 3% of the fees billed is added to each bill to cover
the costs of postage, copying and telephone charges.
Mr. Cook
Page 2
September 7, 1993
Our statements generally will be prepared and mailed during
the month following the month in which services are rendered and
costs advanced.
Should retaining expert witnesses, consultants and court
reporters with regard to the proceedings be advisable, the City
would also be directly responsible to the experts, consultants and
reporters for payment of their fees.
Please review the foregoing and, if it meets with yeur
approval, sign a copy of the letter and return it to me in the
enclosed envelope. If you have any questions, please feel free to
call me.
On a personal note, I am very pleased that you have selected
our firm to represent you. We look forward to serving you, and we
shall use our best efforts on your behalf.
Enclosure
cc: Michael Wm. Morell
Sincerely,
Richard A. Lo peich
John Cook
City Attorney
City of Okeechobee
LWJ:ah
WATER PURCHASE CONTRACT
THIS CONTRACT FOR THE SALE AND PURCHASE OF WATER IS ENTERED) INTO
6th Day of Ail , 1965, between the
NC of the
City of Okeechobee, an incorporated.municipali.ty of the State of Flor.idn,
Irr•r.':i.nafter referred to as the "City ", and Okeechobee Beach Water
A:•:ocintion, Inc., a non- profit corporation organized under the Law.,
r• rho State of.Fiorida, hereinafter referred to as the "Association".
W I T N E S S E T 11:
WHEREAS, the Association has been organized as a corporation not
for profit under the Laws of the State of Florida, for the purpose of
constructing and operating a water supply distribution system wcrving
water users within the area described in plans now on file in the office
of the Association and to accomplish this purpose, the Association will
require a supply of treated water, and;
WHEREAS, the City owns and operates a water supply distribution
system with a capacity currently capable of serving,the present customer:.
of the City systern and the estimated number of water users to be
• ..r•ved. by the said Association as shown in the plans of the systern now
on I'ilo in the office•of the Association, and;
WHEREAS, by Resolution No. _
, 196 5, by the Council of the City, the sale of
enacted on the _
6th Duy of
April
water to the Association in accordance with the provisions of the said
RI ?solution was approved and the execution of this Contract carrying out
the said Resolution by the President of the City Council and attested
by the Clerk of the City of Okeechobee, was,,duly authorized, and;
WHEREAS, by Resolution of the Board of Directors of the Associal.i n,
enacted on the 6th Day of April_ ._.. —'
196_5 —_, the purchnsw
EXHIBIT A
of water from the City in accordance with the terms set forth in the said
Resolution was approved, find the execution of this Contract by the
President and attested byithe Secretary was duly authorized;
FIOW, THEREFORE, in cpnsideration of the foregoing and the mutual
rigreements hereinafter se. forth:
I'Ili; CI'T'Y AGREES: .
1. To furnish.the Association, at the City
of Okeechobee Water
Tr.atment Plant, located pn State Road No. 78, several miles South of
City of Okeechobee, durin the terns of this Contract, or any rencwrr1. or
extension t ;hereof,.,p
btablp p, treated water, meeting
standards of the Florida 'State Board of Health, in
be required by. the Association.
2. That the City will operate and service the equipment to be
installed at the City Water Treatment Plant used in transmitting,trera(ed
water of the City to the Association's distribution system.
To operate and maintain at its own expense. the necessary nurterinr..
of standard type for properly
applicable purity
such quantity as may
3.
equipment other
measuring
calibrate
but not more frequently than every twelve month . A meter registering
not mjre than two per cent above or below the actual flow shall be
,I. "vn 'r1 to bo accurate. The previous readings of any meter disclosed by
test to be inaccurate shall be corrected for the six months previous
to such test in accordance with the percentage of inaccuracy found by
amount
and
required services
the quantity of water delivered to the Association, and to
such metering equipment whenever requested by the Association,
such
tests.
If any
of water furnished
of water delivered
meter
during
in the
fails to register for any period, the
such period shall be
corresponding period
deemed to be the amount
immediately prior to the
failure, unless the City and the Association shall agree upon a
different amount. The metering equipment shall be read on the first
diry of each month.
_2_
I. To furnish the manager of the Association at the Assoc:ial;ion,:l
I,••,df1u1rt ;,rrs not later than the tenth day of each month with an itemized
:tnt emc•nt of the amount of water furnished the Association during the
preceding month.
5. The City, for and in consideration of the sum of ONE DOLLAR
and other good and valuable considerations, does hereby grant and convey
to the Association an easement to enter into the Water Treatment Plant
and across appurtenant property of the City for the purpose of anstnll.ilw
and mni.ntaing the equipment of the Association and for other purposes
in connection with its water distribution system during the term of
this Contract-, and for any extension or renewal of the same.
6. The City further agrees that at the termination of this Contract
r of any extension or renewal of the same, that the Association shall
i,•,,•,! the privilege of rempving its meter and other equipment from the
aforesaid Water Treatment Plant, and from other property of the City
on which the Association's equipment might be located.
THE ASSOCIATION AGREES:
1. The Association will install and maintain all equipment necessary
to discharge water from the treatment plant into the Association's
distribution system, including a master meter and other equipment as
shown in the plans of the Association, and the Association will be
responsible for keeping all its equipment in good repair.
2. To pay the City, not later than the 20th day of each month, ft!r
water delivered in the preceding month, at the rate of twenty -six cents
(264") per 1,000 gallons furnished.
3. It is expressly understood by and between the parties ltocto tl,nt
Li,' A ::.::oci.ation will i.nstall its meter and other equipment in the Wator•
Treatment; Plant of the City, and that the Association's contractor wi.l.l
perform the work necessary in order to install the same and to connect
-3-
i• system with that of the City, aucl that
1i.. Association's distribution y
there will be little cost to the City in connection with the connection,
hut in the event that any costs; accrue to the City
as a result of the
rti „r, and connection of the Association's meter and equipment
with that of the City's water supply, that the Association will hoar
the costs to the City of these expenses, including the cost of ra-
locating any of the City's equipment and any alterations made necessary
by the above described installation and connection up to an amount
and not exceeding FIVE THOUSAND DOLLARS (15,000.00); and it is further
agreed that the Association shall have the privilege of having its
contractor perform whatever work is necessary,
and that the City sha.l.l.
••Main the approval of the Association prior to contracting for or
expending any monies for Such expenses.
l_I. 1;; FURTHER MUTUALLY AGUED BETWEEN THE CITY AND THE ASSOCIATION AS
1. That this Contract shall extend for a term of ten (10) years
from the date of the initial delivery of any water by the City to the
Association,
and will continue in force after said ten (10) year
p•'riod unless terminated as follows: The Contract may be terminated by
either the Association or the City by giving two years' notice in writing
,.luring January of each even year during the continuance of this Contract'
'I'Irat the first January in which either the City or the Association can
give the two years' notice of termination is during 1974• Every two
years thereafter, the City or the Association can give written notice
of the termination of the Contract to the other party to be effective
t.h' first day of January two years later.
2. That thirty (30) days prior to the estimated date of completion
of construction of the Association's water supply distribution system,
the Association will notify the City in writing the date for the in:it,ial.
i livery of water.
- lr-
3. When requested by the Association, the City will make avni.1ubl
to the contractor at the point of delivery or other point reasonably
close thereto water sufficient for testing, flushing, and filling
th- system of the Association during construction. The contractor or
the Association will pay to the City the metered volume of water
furnished in connection with this paragraph to the Association at the
��
agreed rate of twenty-six cents (- ¢) per 1,000 gallons.
J. That the City will, at all times operate and maintain its
r-:u t;em in an efficient manner and will take such action as may be
uecer•a:ar•y to furnish the district with quantities of water required by
tho Association. Temporary or partial failures to deliver water shall
l,rr r•em died with all possible dispatch. In the event of an extended
1,',t,t a'rre of water, or the supply of water available to the City is
.1;11erwi se diminished over an extended period of time, the supply of water
to Association consumers shall be reduced or diminished in the same ratio
or proportion as the supply to City consumers is reduced or diminished.
In the event that because of a breakdown in City egaiiprent or for other
reasons the City cannot furnish the Association with water as provided
herein, and in the event that the City shall take reasonable action to
correct the breakdown or other cause, the City will not be liable to
the Association for the failure to deliver water to the Association,
provided that the total supply of water to Association consumer's shall
be reduced or diminished in the same ratio or proportion as the supply
t.r. City consumers is reduced or diminished.
5. The Association agrees after removing its equipment and meter
at the termination of this Contract or of any extension or renewal of
the same to repair any damage to the City's Water Treatment Plant cased
by said removing, and to re- locate the City's equipment to its original.
peri.t.i.or, that such equipment was in prior to the installation of the
Arroci.aation's equipment and meter in the Water Treatment Plant.
-5-
6. That this Contract is subject to such rules,. regulations or
lnw:, as may be applicable to similar agreements in the State of Florida,
the City and the Association will collaborate in obtaining such
permits, certificates, or the like, as.may be required to company therewith.
7. That the coristruction of the water supply distribution system
a loan from the United States'of
the Association is being financed bya
America, acting through the Farmers home Administration of the United
States Department of Agriculture, and('t, e provisions hereof pertaining;
to the undertakings of the Association are conditioned upon'the approval,:.
in writing, of the State Director of Florida of Farmers•llome Administration.
8. That in the event; of any occurrence rendering the Association
incapable of performing under this Contract, any successor of the
Association, whether the result of legal process, assignment or otherwise,
r.hni.l succeed to the rights of the Association hereunder.
J.N WITNESS WHEREOF, the parties hereto, acting under authority of
governing bodies, have caused this Contract to be duly
counterparts, each of which shall constitute an
and
1,y
•
tiwi r.'respective
executed in
original.
Four
CITY OF OKEECIIOBEE
BY:C•icL2
CITY COUNCIL PRESIDENT
ATTEST: %fQ1>C
CLERK OF CITY OF °KEW OBEE
SEClilsTbq
OKEECIIOBEE'B3: »11 WAT
OCIATION, INC.
PRESIDENT
1
TIHIS C6NTRAC"1' `IS' PPItOVED" orir behalf ef tl'ib Farihern :ilOme, dnini::tr'at.i (��I
on this .the nay of _._------- :T.)*. _,.
STATE - DIRECTOR OF. FLORIDA
-.6-
, { 7 .' 1
A G R E E M E N T
'/1
THIS AGREEMENT entered into at Okeechobee, Florida,
this 4th day of September, 1970, by and between OKEECIIOBEE BEACH
WATER ASSOCIATION, INC., a Florida Corporation with it's princi-
pal office in Okeechobee County, Florida, hereinafter ref:err.'o to
as the Association, and the CITY COUNCIL OF THE CITY OF OKEEC.._..:':-
hereinafter referred to as the City,
WITNESSETII, for and in consideration ol! the su,r■ •-
dollar each in hand paid to the other, the receipt thereof
by each acknowledged, and in further consideration of the
oenefits derived therefrom, the Association covenants and
• with the City as follows:
(a) To cooperate where possible with the City in L•alp-
ing the City to construct or update their present water treatment
facility so ns to meet the future need of both the City and the
Association upon proper assurance City will provide adequate water
to Association.
(b) To sell Association's West Okeechobee' Estension,
and assign all easements and rights in connection therewith, to
the City upon F.H.A. United States Department of Agriculture
i
approval. Consideration for said transfer shall be the City's
.assumption of the January 1, 1970, unpaid balance in the amount
of $58,610.43, of note from Association to F.i1.A., plus the pay-
ment by the City to the Association in cash the difference be-
tween said unpaid balance and $74,000.00, which represents
depreciated value of the West Okeechobee Extension,
EXIIIBIT B
latest F.H.A. Engineers estimate.
4 (c) To disconnect within ten (10) days after execution i
ii
if
1 of this Agreement the West Okeechobee Extension from Association's;;
I
i
water main, and to deliver to the City all meter . records together
� p
IIwith $10.00 for each meter deposit for said extension , p rovided
. customer meter account is paid in full.
!! (d) To pay City thirty -five (35) cents per thousand
i
I: gallons of water used by the Association, such rates to be
'i 1
effective on September 1, 1970.
(e) To le1l only to customers (with the exception of
present city customers)
that are located in area South of r.ed-
lined boundary, as shown on attached County map, marked "Addendum
It
A ", signed by the parties hereto, being of even date, and mace a
part of this Agreement by reference, unless a change of boundary
is mutually agreed upon by parties hereto.
II.
In consideration of the covenants to be kept and per-
formed by Association, the City covenants and agrees with the
Association as follows:
To proceed as expediciously as possible towards
(a)
the construction or enlargement of City's present water treatment
1
plant to meet the foreseeable future needs of the City, and in
addition, the foreseeable future needs of the Association, as
more fully incorporated in a study by David 13. Smith Engineers,
1
Inc., 2512 S. W. 34th Street, Gainesville, Florida, 32601,
i
,I entitled "C0MPREHHENSIVE WATER PLANNING FOR OKEECHOBEE BEACH WATER
11 ASSOCIATION, INC. ", dated August, 1969, being Engineer Froze. ;!
so. ..1
•
6905.
(b) To grant the Association the right to immediately
install or re- install high service pump or pumps together with
electrical gear, motors, controls and accessories at City's
water treatment plant for accommodating needs of Association users!
subject to prior approval by City's Consulting Engineers.
I
I (c) To purchase a e West Okeechobee Extension from Asso-
elation and make payments to the Farmers dome Administration
11 (U. S. Department of Agriculture) in the following manner:
1. 207. within thirty (30) days upon acceptance and
i
1 approval of this Agreement by Farmers }tome Administration.
II2. Remainder balance in five annual installments
? plus accrued, interest in the amount of 57. per annum.
q
i� (d) To sell to Association at thirty -five (35) cents
�I
er thousand gallons of water metered to Association, such race
p
11 to be effective on September 1, 1970.
(e) To Fell only to customers (with exception of
Ipr.esent City metered connections) that are located in area North
Ilof red -lined boundary, as shown on attached County map, marked
\1 i"Addendum A ", signed by the parties hereto, bei of even date, ng and made a part of this Agreement by reference, such bounda_-; to
'acceptable unless a change of boundary is mutually agreed upon 1
by .
i
parties hereto.
(E) To furnish or advise the Association by progress
I
reports regarding expansion of City's water treatment plant, and
allow consultation with Association prior to approving construc-
Iition contract for enlargement of present City's water system.
III.
(a) It is mutually agreed that absolute title to the
the City of Okeechobee
West Okeechobee Extension shall pass to
upon full payment of the contract price herein provided, and
Association agrees to execute any document necessary to effect
said conveyance at such time and acquire all proper releases from
I Farmers dome Administration.
1' (b) It is also mutually agreed by the parties hereto
I; arties
that the wholesale value of water ,shall be binding on all p
to this Agreement for a minimum of two (2) years from date of the
I!, execution of this Agreement. Upon said date or upon any anniver- I
sar.y date thereafter, said wholesale value of water may. be changed;
provided that the party making or requesting such change shall
have given to the other party written notice of intention to do
! prior thereto.
i so no less than one (1) y ear p
(c) It is further mutually agreed that this Agreement
Lay be modified at any time upon consent of both parties.
II
�' IN WITNESS whereof, the parties hereto have hereunto
I1l set their hands and seals as officials of both ,the. Association
I
and the City, prior authorization for such execution having been
duly obtained from City Council of Okeechobee and the Board of
II Directors of Okeechobee, Beach Water Association, Inc.
I�
ilATTEST:
;GILL F. EMBRY, SECTARY
it
;ATTEST:
II
rLORENA SPIVEY,dCLERK
II
OKEECIIOBEE BEACH WATER •
ASSOC' ON, INC. / /// / //� -)
By:
LELAND PEARCE, PRESIDENT
By:
OKEECHOBEE CITY COUNC.. L
C ,AIII)E GARD
ER, P UES IDENT
1
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C rr
It
11
1
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1, a k e
. . .
. ' ; ; ■.: •:—. 1
Iv'
■'. ; 1 FLORIDA
.„. C•-•.t., .. ' ' ' )• \ r couriry riioloonAmmr.mic nivilicm
rnrrnntn nv 7111
• , rni.m tirAct I
1001.1(
TnArrtc Ann ri.nrItimo nivirooll
FLORIDA STA1E ROAD or_rAritMENT
111 (01,(11A 11014 W. /0 MI
U.S. DEPAIII MEN I- or COMMERCE
nuitrAu or runt.ic rionwi
01111 ri'll ri ; I ------:;
scAkr
, °ADDENDUM A"
:011:P1 .
1. I
7
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:. •.. •••.• ::.!'.— :. ,;er i ...'' , l' \ '
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Okeechobee
OKEECHOBE)BEACH WATER ASSO JATION, INC.
LELAND PEARCE, PRESIDE
ATTEST: Ai/
• /'
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CIAUDE GA1UNER, PRE)5,-..DENT
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OKEECHOBEE CITY COUNCII
BY (1<A
-41
• ••
ATTEST.- .
LORENA SPIT ,CLERK AP11/11/A 1/21,1V17 I IC clto...nfo1 Arrnoro,... rt• 1 w1,,,/,•,.
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/ GEN ER A 11 H 116 it 1 WAY- M AF
i OKEECI- OBEE COUNT
11 EV 1 10 S
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OCTOBEF1, 1964
11,1 •••.•
1
act
INC., a Florida corporation with iLs principal place or business
in Okeechobee County, Florida, hereinafter ro tcr.red to as
the Association. and the CITY OF OKEECI1OBEE, a Municipal cor-
poration,•hereinafter referred to as the City, also located
in Okeechobee County, Florida,
W1TNES5E'l'11:
1. WHEREAS, the City of Okeechobee owns and operates
a potable,water supply, treatment., pumping and distribution
system, and
2. WHEREAS, the Association provide:; :1 water d i .t ribn-
Lion system to certain residents in Okeechobee County, I'Ic)ri,1d,
and in Glades County, Florida, and
3. WHEREAS, the parties hereto have been operating
render an agreement dated the 4th day of Sep'lember, 1970, wherein
the City or Okeechobee had been selling bulk water to the
Association and which volume agreed upon has now boon exceeded
and Is insufficient for the present and future needs or the
Association, and
4. WHEREAS, the City is expanding its present water
supply and treatment facilities, under its 1976 Water Works
Improvements contract 075 -1156, and
5. WHEREAS,. the Association has requested a guarantee
AGREEMENT
TIIIS AGREEMENT made and entered into this
//_' day of
1977, between the OKE1.iCL1OBEE REACH WATER ASSOCIATION.
of 500,000 gallons, per day of potable waster from the City in
order to accomplish its objectives, and to insure proper service
to its customers,
NOW THEREFORE in consideration .of the sum cif ONE DOLLAR,
the receipt of which is hereby acknowledged, and other good
EXHIBIT C
lAw orr.C, '. 01 nIC,lAnn 11. 9n11/. ". nOt'l C �. no>t 113. (w s,I non° 1 0.5. 4411. nn1' rc.111)nl.E C.v. ,,r'n111A )34Y
and valuable considerations, the parties agree as follows:
1. THAT the Association shall cooperate with the CiLy
in its water plant expansion program, contract 1,75 -1156, known
as Lhe 1976 expansion, as follows:
(a) The Association shall place the sum of $200,000.00
in an escrow account in a banking facility in Okeechobee County•
to be selected by the Association and which sum is agreed to
fairly represent the value of water plant capacity associated
with the 500,000 gallons per day guarantee provisions of this
contract. payments shall be made by the Association from the
fund 'so deposited on a monthly basis, predicated upon the con-
tractor who has the contract for the construction of the improve-
ment submitting to the Association through the City his payment
request on a monthly basis. The Association will pay to Lhe
City forty (40) per cent of the net amount due the contractor,
on the contractor's monthly payment request; regardless of which
portion of the project is being constructed during such pay
period; it being the intent of the Association to be responsible
for its proportionate share, not to exceed $200,000.00. Upon
final payment request of the contractor, the Association shall
pay the remainder of the $200,000.00. The Association's total
payments shall be $200,000.00.
(b) All interest earned on the money deposited in the
escrow account shall accrue to the Association.
(c) In addition to the $200,000.00 placed in the escrow
account, as above mentioned, the Associbl•ion further agrees to
pay toward the construction of a new 500,000 gallon (dear well.
the sum of $75,000.00 provided, however, that the City shall
have an engineer prepare plans and specificationh for the new
clear well within six months from the dale of this agreement and
-2-
_...... .... ., xwUT!_ nOVTC +,110% zr3,(wovr nOn" & V.S. +ut. few[,. Cn09(C „•0■•• I) +,r
let- bids therefor. If the City does not have plans and specifi-
cations prepared within six months and ready for bidding in such
tune, then in such event, the Association shall not be required
to deposit the additional sum of $75,000.00, unless there is
further extension of this agreement between the parties in :writing.
2. The City agrees as follows:
(a) To provide to the Association an average daily
water supply of not more than 500,000 gallons for a period of
ten (10) years from the effective date of this agreement. Said
water to be delivered to the Association at the plant clear wells
under atmospheric pressure.
(b) If the water supplied to the Association exceeds
500,000 gallons daily for any one month, then the average is Lo
be computed from the month when the water supplied exceeded
the 500,000 gallons plus the two months immmediatr_ly preceding
it; it being understood that the average is to be computed over
a three month period.
(c) To permit the Association Lo install a new finished
water pump in the clear well at its own expense, with a capacity
of approximately 700 gallons per minute, at 90 pounds per square
inch discharge pressure.
(d) To permit an interconnect between the finished
water lines of the City and the Association, subject to joint
approval of the construction plans therefor, at the sole cost
of Lhe Association.
(e) The Association agrees Lo pay, monthly, to the
City the actual cost of the CiLy producing the water, plus
$.05 per 1,000 gallons. For the purpose of this agreement,
actual cost shall be computed by the City- The City shall
use the following items in computing its bill to the Association:
-3-
LAW 7rr,Cr5 •r ntra•n0 •, . bnvt5. nowt[ 4,50% ,f, (wOt rr nonO A. V.4. 4411.051 Cr Imr.Cr CIIY, r, Onlbn ))47=
Formula for establishing cost of wafer production
(Using cost of'plant operations only)
COST OF PRODUCTION
1. Chemicals (Exclude Post Chlorination)
2. Electric ,( xclude City H. S. Pumps)
3. Labor: Percent of Following Salaries:
Director oC Public Works .(45%)
Supervisor of Operation (50%)
Billing Clerk (20 %)
Operators (100 %)
4.. Other Expenses: of all employees of the water
Plant as follows:
workmen's Compensation, health
Insurance, Social Security, Pension
Fund Cost, Disability Insurance,
Labor Liability, And the Following
Expenses of Water Plant, Property
Damage Insurance, Telephone,
Fee, Office Expense and 10^% of Legal
Counsel salaries of and for Water
Plant.
5. Interest only on Actual Debt Service.
(1973 Plant Improvement plus old plant)
6. Repairs and Maintenance Actual Cost.
7. Truck Expense: Actual with per upon Minimum
of $150.00 p
8. Depreciation of the present worth of the water
plant which is designated at .$900,000. 00 atitt]Ueiny
per year for a period of forty (40) years,
understood that said $900,000.00 does not include
any equipment owned by the Association.
9. Required Lab Test outs L
outside Lab.
10. Outside'Special Service: (Legal, ]engineering and
Administrative. Actual
cost of service when usc•ct)
(A) Estimated total cost of production = Sum of items
1 -10.
•
(B) Total finished water in thousands.
Formula: A = Cost /1,000 gallons.
B.
The Association shall be billed monthly by the City's
estimated cost per 1,000 gallons as bekeinabove stated. The
•
-4-
IAW 1 ),,,Cr.3 or O,C.I,.00 N. lAut.s.. ,,out[ ',.SOX it), IWOtrr ,1C1w1, A u.4. +•11. OKI tC11011Cr. VI,.I I°ow.
actual cost shall be computed every three (3) months by the City
and billings for the subsequent months adjusted accordingly.
(C) The Association agrees to install, own, operate
and properly maintain its booster pumps, mainline meters and
chlorination facilities at its sole expense.
3. It is understood between the parties hereto that the
Association has applied for and is being financed by a loan
and /or grant made or insured from the United States of America
acting through the Farmers llorne Administration, United States
Department of Agriculture, and the provisions hereto pertaining
to the'undertaking of the Association and conditioned upon the
approval in writing of the State Director of the Farmers Home
Administration, and in the event of any occurrence rendering
the Association incapable of performing under this contract,
any successor of the Association whether the result of legal
process, assignment or Otherwise, shall succeed to the rights
of the Association hereunder, and the City agrees to be bound
by such process, assignment, or otherwise.
4. It is further agreed between the parties Hereto that
the Association shall serve all users in the area south of
the boundary, that is identified between the city and the Associa-
tion per legal description attached hereto and made a part hereof
except for its users presently served by the City.
as Exhibit A,
It is specifically agreed that the City shall not serve.any new
water user in this area unless such potential user has been
refused service by the Association, and neither shall the Associa-
tion provide service to any user north of the boundary unless
it is mutually agreed upon by the City and the Association.
-S-
........,.ors Or OIC,Un0 ,t. sAVls. noUCC. •, .ox ti7.(w0t7 n0AU A 0. s..+11.(04 CC0oflCC Cat r. rt 0.01A ]:,•)^
5. The tern of this agreement shall be for a period of
ten (10) years as mentioned herein and said term shall commence
when the contract 475 -1156 as contemplated herein has been com-
pleted and so certified py the City Engineer of the City of
Okeechobee to the Association.
6. In the event that Ibe, average amount of. water supplied
ara rap►, 2 , and
the Association exceeds the limit set forth in p g
sub- aragraphs thereof, on page 3 of this agreement, then the
P
parties hereto agree to renegotiate this agreement insofar as
the same relates to the amount of water to be furnished by the
City to'the' Association.
IN WITNESS WHEREOF, the parties hereto have hereunto set
their
hands and seals as officials of both the Association and
the City, prior authorization for such execution havihy been
duly obtained from the City of Okeechobee and the Board Of
Directors of Okeechobee. Beach Water Association, Inc.
OKEECHOBEE BEACH WATER ASSOC (A'i I ON , IN(
ATTEST:
ATTEST:
he land Pearce, President
CITY OF OKEECHHOBEE
By C --- -_- - -----'
---
Russel Dourer, President City Cuunc
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_.. _...�.a or mc„Ano 5AU1 . noVrt n,so)( a], lwovr no &o a U.s il. on[cu.onr. c C.rV- r,nn,n^ )l.r:
Nor
• LEGAL 7ESC IPTIUN O NENC11U1E BEACH WATI.:It A :::-:
tCln1I7N
SERVICh, DISTRICT.
Ileginning at the Township line between T37S and 'l'38S on the
Martin County lino proceed west along the north section lino of
2 and 3 in T38S to the West corner of Section 3
sections 1, of section 33,
•fa7ti to
thence north along the east section west along the north
the northeast corner of section 33tt the half section line of
section lino of section 33 and 3•r
section 32, 29 thence north on the half section li.urr of section
29 to Lite east west section lino between sections 29
T37S, 1136E and section 25 and section 26, T375,
thence west along this section line along Cho north side o soc-
t.lous 29, 30, � then south alrin�; the
13511 so the ti line o f sec line of touitso southwest tco th'euco
west alo g t lino oh section ti
I,he west. Rection li.np ,uf
wvsl, along the north section line of section
11 thence south along thence west on Lh1 north
;unlit of stotthe 3 section lino, { lll,,nco
ausecn 1 ii 11 to the north soot-Ion lino 11 r suction 3'
i
section lino to Llto haJ1' sor�Llu,t 1Curl u1'
south on the half west al along to oast west' I. section
Ll ncu south
suction 33 theneo west Moog Ilto on::t wc'L sectJun line to t.lte
Lnen3o went along the south north south suction line between sac Linns 33 section 32
to the south west coiner O9 toeth e(lsouthwest corner of
her,l. ion Tine of section 32 section lino of section 5r,
thence south 5E l to the east west
the half.
ownship Range Line between 11351( .
T38s, R35>; thence west to section lino of section j
and R3hE thence south to the north i o line
1 to the 000�tor'
thence west on the south section lino
ine of set ion Pond to Lake
(tyke Road, thence southeast along
Okeechobee, thence northeast and tsouIli along t lAdte O enchobLi11�i or
line to the Martin County
ofline,
beglnuiug.
County line to the point
EXHIBIT n
RESOLUTION
WHEREAS, The Okeechobee Beach Water Association, Inc..
in cooperation with the City of Okeechobee deems it to the hest
interest of both the City of Okeechobee and the Association,
to enter into a water purchase Agreement between.the OKEECHOBEE
BEACH WATER ASSOCIATION, INC. , and the CITY OF OICEECIIOBEE:
NOW, THEREFORE, BE IT RESOLVED:
1. That the OI(IiECHOBI• E BEACH WATER ASSOCIATION, INC.,
agrees to the provisions of that certain agreement attached
hereto, perlain.ind to the sale and purchase of water from the
CITY OV OKEECIIOBEE to the OKEI ?CII013Ei: .II:ACI1 WATER ASSOCIATION, INC.
2. That the Board of Directors of the OKEECHOBI;I; BEACH
WATER ASSOCIATION, INC.,' hereby approves and authorize;; the
President of the Association agreement to be executed by )
together with its Secretary on behalf of the Association, this
-1/:_a- day of _ , 1977.
OKEE•:CHOBEE BEACH WATER ASSOCIATION,
INC. 7
Leland Pearce,
President
ATTEST:
J VfAilk Broome, Secretary
110)V1t •,MO; v401 rr 00.0 S 111....-10.0.01 :10(.01,0 • 1 1101• 1.,.):
12Esoui'1'CON
A ILES01,11'1'1ON AI'1'11(IV1N(( A CONTRACT 11)12
'1'111•; SA1.I•: AND 1'111,UIIA.11': OR WATED I11:'1'141•:P:N
'1'111. 1)hIa :CIp1111,1•; NI ?A(;I1 WA'I•I'.I2 AS:1111:1 A'1'1ON,
:(N(:. AND '1'111°. CITY OI OKla :(:111)111.,1?. All'1'11-
0111'7.1 N(: AND l) DECTTN( 'I'III? I,:> l CU'1'1 ON OF'
SA10 i ON'I'IOAC'1'.
seconded by Olt n No 1:1011 o r CounCl twin Donal ns ,
(:o1n1c1 )nom Pool orQrn1 , tho -following llo olution t +:rs 111.1011.011:
IJIII'.itl;;AS, 1.11a ('] I:y ° 1'
Olcoecllo(t0e, (looms iL 1n Ilse i
I.,1I:ores1. 1:o' nnLor ].uI ;o n WA'1'IU 1,1JI1CIIASE A(;111 ',1 *II•;N'I' L+otwoorl (Ito
O1(I•:RIIil011E1.: IIEAIIC WA'1'1;1( ASSO(aAl-ION, INC. nod Lho CITY 01
• 1)hri,,1'11(111( ?li.
N014, '1'lll{RI:Fttllt;, 111': •.'I' Itl ?SO1,VIS1):
• '1'11111: 1:110 ('11.y or Olcon(atotl0e ngreos Lo the prowl vinn,4
r I.11:1 1. cc1•1;11 111 ngrocnlo „1; nI.t.:lcl1e11 hove 1.o. porI 1(1in(, 10 1.1111
rInlo nod porchnso (11' 14111.0r from the city of Oko0cl%ot10e to the
Ilenr•11 14:11 e 1• A- 100(:.1 n 1. 1 011. .1 110.
'11101 111x• CI. l)• or Okeechobee 1111'1'ovos 1111+1 111111101.17.0^
11111 :1111 11(;'11'19111'111. 10 111. (':.< rcn1(1(I l+y 1.1111 1'1.1': +1111.111 11 1• 11111 1111• •
1A Ssla) AND AI1111'I'1:11 by Lilo City CollncII o1• Llto ty of •
Au_ns L • 9'7'r
Okoecholroe,
L113 r1. 25111 cloy or
A•1” I'ES 1':
•
:::111111.11 1111111101.1
1'i L1' 1'lo1'Ic
Ci i.y of Okeoc11oboe
AI'I9111VEl) OY
r
:. 12u:l:= 0 1. 1 V. Dower
r
"'`1,•11:•1 111 0111: C]. I.y Council
C1t•y of Olcoocllol.+ce
25111
day oC
Au111ny I)unll:tm
AIn y01•
C .1 I.y 11r• Okeechobee
Au(1s t
rp
1977
CLERKS CERTIfICA7E
STATE or FLORIDA l
COUNTY Of 01.7i1E010Rr.°E ) rr:
CITY 01: 01 :1211: 71i ?Arli
r, 3:4NI i I ;v,Vfil7; //OEM' (TR rlrl' rIIAT 1 on I& July
ft•011 l Cl r& e( 1lr (,1y nl 01r,i1.,1 rr, 1£P J; 11JI I1r 411
nun,: ,I1 ,
MK 401/ wr of .1 11,rrnnrnl 0rogir,d rI 6 11r0 1 wr
i/ ihr Off C1 r!• 4 11r Cny .,f Mrn1 "r,. 1'.'10.14
IN IVITh'rj S 1V1Il REOr b.,ry Irrru,rl., ni ,nr
,//;r)41 r4l el 11,11 ?.a.. ill ,1 ele,r4 Y
A. U. 19 i.!r............
SEAL
SANDRA AL Rr•NN17'1'
CITY CLERK
AGREEMENT
TIIIS AGREEMENT made and entered into thin bth day of
August , 1905, between the OKEECIIOBEE BEACH WATER ASSOCIATION,
INC., a Florida non - profit corporation with its principal place
of business in Okeechobee County, Florida, hereinafter referred
to as the "Association ", and the CITY OF OKEECIIOBEE, a municipal
corporation located in Okeechobee County, Florida, hereinafter
referred to as the "City."
WI'rNESSETII:
WHEREAS, the city owns and operates a potable water supply,
treatment, pumping and•distribution system; and
WHEREAS; the Association provides a water distribution
system to certain residents in Okeechobee County, Florida, and in
Glades County, Florida; and
WHEREAS, the parties hereto have been operating under an
agreement dated the 4th day of September, 1970, amended the 11th
day of August, 1977, wherein the City of Okeechobee had been
selling bulk water to the Association in an amount of 500,000
gallons per day which volume htu, now been exceeded acid is
insufficient for the present and future needs of the Association;
and
NOW, THEREFORE, in consideration of the sum of ONE DOLLAR,
the receipt of which is hereby acknowledged, and other good and
valuable considerations, the parties agree as follows:
1. The City will provide to the Association an average
daily water supply of not more than 750,000 gallons per day for a
period of Ten years from.the effective date of this Agreement;
said water to be delivered to the Association at the plant clear
well under atmospheric pressure) provided, however, that the City
shall not be held accountable for any reduction in the water
supply or inability to comply with the terms herein clue to acts
of God or Federal and /or State or its subdivisions or agencies
rules or regulations. • Due to the limited water sources
available, the City retains the exclusive right to the selection
of its water supply source and shall not be held accountable to
1
EXIIIBIT D
•H,
tworst
the Association or its customers for the quality of water
delivered. With the exception of chlorination, the water
supplied pursuant to this agreement shall be of the same quality
an that supplied by the City to its customers.
2. The Association agreed to pay annually a systems
charge of one dollar per gallon for all water used in
system capacity charge
and the
assessed
average
capacity
excess of 500,000 gallons per day. This
is to be calculated at the end of each year's operation
number of gallons against which this charge shall be
shall be determined by the
}highest calendar
during the preceeding year. On each
' the Association will pay to the City any additional fee for
capacity utilized during the previous year which was not
previously paid, but no rebate shall be payable by the City for
usage from the previous year.
month's
anniversary date thereafter,
v {
1!
4)
'�k
•
i
any decrease n
Said payment shall in no manner create an interest
property nor guarantee rights beyond this Agreement.
anniversary date for the calculation of this charge
year from the date of this AyrLcment.
(For example, if on the first anniversary of this contract
ltr it is determined that the highest daily average used by the
the
average daily
in the City's
The first
shall be one
Association in any calendar month during the previous
545,000 gallons the systems capacity charge for that year would
be $45,000.00. If on the second anniversary of this contract it
average used by the
year was
in determined that the highest daily
Association in any calendar month during the previous year was
580,000 gallons the systems capacity charge for that year would
$35,000.00 as this is based on the difference between the two
consecutive years. If however, the highest daily average during
the second year as 540,000 gallons, the Association would owe no
additional systems capacity charge and would be entitled
refund or rebate of .the capacity charge paid in the previous
be
to no
year.)
2
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P! It vok
►(
14
:
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1
ppI t
3. The Association further agrees to pay monthly to tie
City 1001 of the actual cost to the City of producing the water,
plus an additional 151. For the purpose of this Agreement, the
actual cost shall be computed by the City utilizing the following
items:
3 -1. Chemicals (exclude post chlorination).
3 -2. Electricity (exclude City finished water' pumps).
3 -3. Labor - percentage of total salaries as follows:
(n) Director of Public Utilities - 50%
(h) Assistant Director of Public Utilities 501
(c) billing Clerk - 201
(d) Operators - 100%
(e) Plant maintenance personnel - 100%
(f) Water crew labor used for water plant repairs
- 1001
3 -4 Other Expenses:
Those associated with tto. 3 -3 Labor, above:
(a) Worker's Compensation
(b) ilealth Insurance
(c) Social Security
(d) Pension Fund Cost
(e) Disability Insurance
(f) Unemployment Claims Reimbursements
And the following expenses of the water plant:
(a) Property damage insurance
(b) Public Utilities office telephone - 25% and
100% of water plant telephone
(c) Audit Fee - 50% of water budget amount
(d) Office expense - $50 minimum
(e) Legal counsel salary - 50% of water budget
amount
(f) City administrative fee - 251 of water budget
amount
3 -5 Interest only'on actual debt service
(current and future plant construction).
3
•
3 -6 Repairs and maintenance, actual cost.
3 -7 Truck expense: Actual with agreed upon minimum of
$150 per month.
3 -0 Depreciation of the present worth of the water
plant which is designated at $1,750,000 at 2 1 /2%
per year for a period of forty (40) years. It
being understood that said $1,750,000 does not
include any equipment owned solely by the
Association or any equipment owned by the City
related solely to the distribution of water to its
customers. Present worth of the water plant is
agreed to represent the sum of:
• $900,000.00 present worth designated in
amended Agreement of August 11, 1977.
$515,000.00 improvements (raw water intake
structure, one sand filter, emergency
generator, one transfer pump,
etc.,
completed December 14, 1970).
R $335,000.00 new clear well project.
Depreciation shall be automatical.y revised upward
to reflect future plant expansion construction
costs as incurred.
3 -9. Required lab testing (local and outside lab work).
3 -10. outside special service (legal, engineering and
administrative) actual cost of service when used).
The formula for computing the cost of producing water
shall be:
A divided by 13 (g) where:
A - sum of items 3 -1 through 3-10 above.
B total finished water in thousands of gallons.
The amount owed to the City monthly'shall be calculated
e
water produced, from
using the actual cost of by
formula above, multiplied by
115%, multiplied b
gallons of water per thousand furnished to the
4
Association each month or
A x 115% x total amount of water, per thousand
furnished to the Association monthly.
Examples Assuming A = $32,445
Assuming 13 = 43,100,000
Assuming C = Association's water
use during month is 15,000,000
cjallone.
Amount = b x 115% x C or:
1l,
.753 x 115% x 15,000 = $12,909.25
4. The Association shall remit all sums due and owing to
City within
fifteen (15) days of billing by the City. Upon
failure of the Association to remit payments within thirty (30)
days of original billing date, the City may, at its option,
discontinue water service to the Association until all arrearage
in paid in full.
5. The Association agrees to continue to own, operate and
properly maintain its booster pump, mainline meters and
chlorination facilities at ita' sole expense and to reimburse the
?{ti City for electricity used in its finished water pumps as well as
rrr
chlorine utilized for pest chlorination. The Association will be
•
r [,
1(
's
„
• 1
,•1, 11
solely responsible for testing, evaluating and treating the water
purchased from the City, as may be requirdd by any State
or
Federnl regulatory agency.
6. It is understood1betweeri'Ehe parties hereto, . that the
Association is being financed by a loan•and /or grant made or
insured from the United State of America acting through the
Farmers
Home Administration, United States Department of
and the provisions hereto pertaining to the
f the Association are conditioned upon the approval,
of the State Director of the Farmers Ilome
and in the event of any occurrence rendering the
Agriculture,
undertaking o
in writing,
Annoclation,
Association incapable of performing under this contract, any
nuccesnor of the Association, whether the result of legal
the rights of the
process, assignment
or otherwise, shall
5
succeed
Association hereunder, and the City agrees to be bound by such
process, assignment, or otherwise.
7. It is further agreed between the parties hereto that the
Association shall nerve all users in the arena
south of the
boundary that is identified between the City and the Association
art hereof as
per 1egn1 description attached hereto and made a p It
Exhibit A, except for its users presently served by the City.
is specifically agreed that the City shall not serve any new
water user in this area unless such potential user has been
refused service by the Association, and neither shall the
Association provide service to any user north of the boundary
unless it is mutually agreed upon by the City and
'S;
ft,, Association' period of
0. The terms of this Agreement shall be for a p-
e
rl ears commencing October 1, 1904 and shall be binding
ten (10) y
upon the successors or assigns of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have hereunto' set
f; I
( their hands and seals as officials of both the Association and
the City, prior authorization for such execution having been duly
,., and the Board
t,k obtained from the City Council, City of Okeechobee,
+r
of Directors of Okeechobee Beach Water Association, Inc.
OKEECIIOBEE BEACH .WATE1l
ASSOCIATL�3,�
ATTEST:
h— Ii`a'�
ATTEST:
City Clerk
13y:
CITY OF OKEEC11OBEE
13y
ayor
P. O. BOX 2757
FORT PIERCE, FLORIDA 349542757
DEAN, MEAD & MINTON
ATTORNEYS AND COUNSELORS AT LAW
1903 SOUTH 25TH STREET
SUITE 200
FORT PIERCE, FLORIDA 34947
October 3, 1995
Clerk of Circuit Court
The Nineteenth Judicial Circuit
Post Office Box 9016
Stuart, Florida 34995 -9016
(407) 464 -7700
(407) 562-7700
FAX (407) 464 -7877
Re: City of Okeechobee v. South Florida Water Manage-
ment District and Okeechobee Beach Water
Association, Inc.
Case No.: 93 -5505
Our File No.: 11816/22248
Dear Clerk:
In connection with the above - captioned case, enclosed is
the original and one copy of the Stipulation for Voluntary
Dismissal. Please file the original Stipulation for Voluntary
Dismissal in the above - referenced court file, court -stamp the copy
and return it to me in the enclosed self - addressed stamped
envelope, and close the file.
WLD /pap
Enclosures
cc:
Thank you very much for your assistance.
Sincerely yours,
W. Lee Dobbins
Michael D. Minton, Esq. (w /encl)
Jack Coker (w /encl)
Kim Love (w /encl)
Burton C. Conner, Esquire (w /encl)
John R. Cook, City Attorney (w /encl)
Steve Walker, Esquire (w /encl)
Richard A. Lotspeich, Esq., and Fred McCormack,
Esq.(w /encl)
Michael Wm. Morell, Esquire (w /encl)
John D. Cassels, Jr., County Attorney (w /encl)
Mark G. Lawson, Esq. and Greg Stewart, Esq. (w /encl)
f: \data\mdm \wld\21404pap.03
IN ORLANDO
DEAN, MEAD, EGERTON, BLOODWORTH,
CAPOUANO 6 BOZARTH, P. A.
(407) 64■-1200
DEAN
MEAD
IN 6REvARD COUNT
DEAN, MEAD, SPIELVOGEL, GOLDMAN 6 BOVD
(407) 453 -2333 • (407) 259-6900 • (407) 725.6373
IN THE CIRCUIT COURT
NINETEENTH JUDICIAL CIRCUIT
OKEECHOBEE COUNTY, FLORIDA
CASE NO.: 93- 555 -CA
JUDGE: JOHN E. FENNELLY
OKEECHOBEE BEACH WATER
ASSOCIATION, INC.,
Plaintiff,
vs.
CITY OF OKEECHOBEE, FLORIDA,
and OKEECHOBEE COUNTY, FLORIDA,
Defendants.
CITY OF OKEECHOBEE, FLORIDA,
Defendant /Counter-
Plaintiff,
vs.
OKEECHOBEE BEACH WATER
ASSOCIATION, INC.,
Plaintiff /Counter-
Defendant.
CITY OF OKEECHOBEE, FLORIDA,
Defendant /Cross-
Plaintiff,
vs.
OKEECHOBEE COUNTY, FLORIDA, et al.,
Defendant /Cross-
Defendants.
STIPULATION FOR VOLUNTARY DISMISSAL
Plaintiff /Counter- Defendant, OKEECHOBEE BEACH WATER ASSOCIA-
TION, INC., Defendant / Counter - Plaintiff /Cross- Plaintiff, CITY OF
OKEECHOBEE, FLORIDA, and Defendant /Cross- Defendants, OKEECHOBEE
COUNTY, FLORIDA, et al., by and through their undersigned counsel,
hereby stipulate and agree that the above cause shall stand
voluntarily dismissed with prejudice upon the filing of this
Stipulation, all matters between them having been resolved.
party shall bear their own costs and attorneys' fees.
urton C. Conner
Florida Bar No .OaS K:57
301 N.W. Fifth Street
Okeechobee, FL 34972
(813) 467 -8800
and
Steve Walker, Esq.
Florida Bar No.
Messer, Vickers, Caparello,
Lewis, Goldman & Metz
200 Palm Beach Lakes Blvd.,
Suite 900
West Palm Beach, FL 33409
(407) 640 -0820
Counsel for Plaintiff /Counter-
Defendant, OKEECHOBEE BEACH
WATER ASSOCIATION, INC.
Each
John R. Cook, City Attorney
Florida Bar No. 2k2)1.51
202 N.W. Fifth Avenue
Okeechobee, FL 34972
(813) 467 -0297
and
Richard A. Lotspeich
Florida Bar No.
Fred McCormack
Florida Bar No.
LANDERS & PARSONS
Post Office Box 271
Tallahassee, Florida 32302
(904) 681 -0311
and
Michael Wm. Morell
Florida Bar No.
310 W. College Ave., Room 222
Tallahassee, Florida 32301 -1406
(904) 425 -8300
Counsel for Defendant /Counter-
Plaintiff /Cross - Plaintiff, CITY
OF OKEECHOBEE
2
D. Casse s, Jr.
unty Attorney
lorida Bar No. 26
CASSELS & MCCALL
Post Office Box 968
Okeechobee, FL 34973
(813) 763 -3131
f: \data \mdm \okeechobee.vd2
3
and
Mark G. Lawson
Florida Bar No.
Greg Stewart
Florida Bar No.
Nabors, Giblin & Nickerson, P.A.
Barnett Bank Building, Ste. 800
315 Calhoun Street
Tallahassee, FL 32301
Counsel for Defendant /Cross-
Defendants, OKEECHOBEE COUNTY,
FLORIDA, et al.
LANDERS & PARSONS
CINDY L. BARTIN
JOSEPH W. LANDERS. JR.
JOHN T. LAVIA. m
RICHARD A. LOTSPEICH
FRED A. McCORMACK
PHILIP 5. PARSONS
ROBERT SCHEFFEL WRIGHT
HOWELL L. FERGUSON
OF COUNSEL
VICTORIA J. TSCHINKEL
SENIOR CONSULTANT
(NOT A MEMBER OF THE FLORIDA BART
John Cook
202 Northwest 5th Avenue
Okeechobee, Florida 34972
ATTORNEYS AT LAW
October 3, 1994
RE: OBWA v. City of Okeechobee
Dear John:
310 WEST COLLEGE AVENUE
POST OFFICE BOX 271
TALLAHASSEE, FLORIDA 32302
TELEPHONE (904) 681 -0311
TELECOPY (904) 224 - 5595
I received your letter of September 29, 1994 and reviewed the
attached letter from Michael Minton including his draft Extension
and Modification Agreement. With regard to the issues that you
raised in your letter, I have the following comments.
I agree with your observation that without entering into a
formal extension of the 1985 Agreement between OBWA and the City,
either party could extend water lines at will into the disputed
area. The downside of proceeding without such an extension is
obviously that OBWA could extend its lines into the disputed area.
On the other hand, the upside is that the City also would have the
ability to extend its lines into this area. In addition, we need
to remember that OBWA still does not have its CUP and, therefore,
is still without the ability to build its water treatment plant.
Without the ability to construct that plant, OBWA will not be able
to show its present "ability to serve" the disputed area which it
needs to do to prevail in the lawsuit.
On the other hand, with the extension as proposed by Mr.
Minton, neither party would be able to extend lines into the
disputed area except as specifically provided in that extension.
At this point, I do not see any downside to the City from the
provisions in the agreement proposed by Mr. Minton. On the
contrary, the upside is that OBWA could not expand its service area
under the terms of that agreement and, furthermore, still is
without the ability to build the water treatment plant.
With regard to the issue of service to Tripp Park, I believe
the proposal offered by Mr. Minton in the agreement is reasonable
and does not appear to create any disadvantages for the City.
John Cook
October 4, 1994
Page 2
Finally, with regard to the issue of the debt service charged
to OBWA, I agree with your assessment that it would seem
unreasonable and unfair to charge OBWA debt service for the
wastewater portion of the debt where they receive no benefit from
wastewater service by the City. In order to avoid a confrontation
with OBWA on this issue, I suggest that the Extension and
Modification Agreement be revised accordingly.
I hope you find these comments helpful. Please let me know if
I can be of any further assistance regarding this matter.
Sincerely,
Richard A. Lotspeich
RAL /nkt
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cerwt,
A• Ca_ Si+�
6e-t
supra,
of t17C
c ve a.r
1e
unite it
,,niouiit
thereon
the ra
be pai;
'rtificate
fete'
Of t b ".'
IltS ere.
_ion` r1
sub se-
ired tL
of t
en t1,
of the
o taxing officers of any amounts of the
e revenues about to be unlawfully or
uauthorizculy remitted, abated, or can -
id by public officer defendants in such
?;cs. Thus plaintiff in this case in the
.irt below was properly entitled to an
function of the conditional character
.vrarded by the chancellor when it was
aerie to appear that the defendant clerk
the circuit court was about to issue a
s.e deed upon a certificate upon which
full amount of the state's revenue
3lectible upon its transfer, had not been
<, retofore actually collected at the time
i its assignment by the clerk of, the
-"suit court in the first instance.
Arai-med.
7LLIS, C. and WHIT]7IELD, TER-
ELL, BROWN, and BUFORD, J;., •co n-
ling cer-
1 collect
certir;'..
Vest am
'sited Ol:
1 section
which'
emptio ;st,`
n
,lice
1345, but
file cer-
less than
the sale
rrtificate
3, but if
seance o
thin ih
the suit
urc corn
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of con-
paid h
'f. i a. v. P ,NT
Supreme Court of Florida,
Mare': 22, 1937..
Mt ielpa corporations c2G5
• Statute prohibiting, construction of sys-
tem, work, , project, or utility for m1niripal-
ity, where system, ,,vork, project, or utility
of similar character is in operation, is in-
tended to' •avo c- wastefulness of encouraging,
duniicate capital investments for competing
r.tilities that could. not likely be operated
without fina11ci0Ily jeop rtliiin -g each other's'
operating revenues if erected in same c611-
sume1 territory (Acts 1005, e. 17113, 3, as
armendded by c. 171.19 ' .)
2. '',:itun!e1D_il por,•, o C7n272
Statute prohibiting const, i.ction of tear, ,y rk.,• project or 1tili nicipal-
ty where system, work, .project, O ut!lity •
"similar t mar character" is in operation
not to prohibit construction of gas plant by
municipality which wau being furnished with
electrical heal light, and energy g from. elec-
tric plant operating from u nic.; 20
3- n:le,, away (Acts 1535, _. 17113, 3, ne
alt , 'R_ `G clerk cf th.e'Clreu t amended by c. 1.1191 }C. 1). L. s'7 lw',' 1- I�;'t ;, • as
Court of Lee County, Florida,' and Switz-
erland Holding Company, a Florida• corpe-
ration, Appei) ants, d. Martin E. .S1- HULTZ,
App? 112.n. :
ough County; L. L. Parks, Judge.
•
Appeal from Circuit Court, T�lleber-
Supreme Court of Florida.
March 23, 1937.
Appeal from Circuit Court, Lee County;
gorge W. Whitehurst, Jucl e.
Maguire & Voorhis, of Orlando, for a?- J. Re' Farrior and P.. 1,1. Hun. ley, both
,ellants• of Tampa, for the State.
Waller & Meginniss, of Tallahassee, and _ Jas. D. Breton Jr., of PIant City, for
Sheppard & Clements and Wm. T. Wood, appellee.
all of Ft. Myers, for appellee. -
Proceeding by the City of Plant City
against the . Sta te,• to validate a proposed
issue . of . ..debenture •certificates. F'rorn 2
decree of validation, the State appeals.
Affirmed.
tate have
of equity,
.w exists."
lay be es
cction:'o}
hale of
amend-
PER CURIAM.
This case is in all respects controlled
y what has been decided this day in the
campanion case of W. L. Draughon, as
Clerk of the circuit court for Lee county,
la., and Seville Holding Company, a cor-
.ration, v. Martin E. Schultz, 173 So. 360,
nd therefore, upon authority of the case
sot referred to, the decree in this case is
affrmed.
ELLIS, C. J., and WIIITFIELD, TER-
CELL, BROWN, BUFORD, and DAVIS,
concur.
DAVIS, Justice.
The city of Plant City is a municipality
under the statutes of this State. By chap-
. tern 17113 and 17119, Acts of 1935, Laws
of Florida, it is authorized and empowered
to Construct, operate, and maintain a gas
plant and distribution system upon satis-
fying, all of the terms, requirements and
conditions of said acts of the Legislature.
It is affirmatively shown by the record that
all procedural terms, . requirements, .and
conditions of said chapters 17118 :'•and
17119, supra, have been complied with` and
that there has been called and held, with
favorable • result, a freeholder's election
364 na. 173 SG- THERN REP R Ell
ender amended constitutional, section 6 o`
article 9 to authorize the issue of 255,000
revenue debentures to be used to con-
struct a gas plant for domestic, municipal,
and industrial use in said municipality O
Plant City.
• The sole objection here urged, to the
validity• of the projected issue of deben-
ture •certi ficates, which have been vali-
dated by decree of the circuit court ren-
dered ` T
p ursuant to section 5106, C.G.L.,
section 3296, R.C.-.S., et seq., is one in-
terposed by the state attorney and predi-
cated upon that portion of section 3 of
chapter 17118 as amended. by section 1 of
chapter 17119, Acts of 1935, reading as
follows:
" * 5 'r: provided, however, that a
private company or municipality shall not
Construct any system, work, project or
utility authorized to be constructed here-
under in the event that a system woris,
project or utility of a similar character is
being actually operated by 0 municipality
or private company in the municipality
or territory immediately adjacent there-
to, unless such municipality or private
company consents to such construction.'
The answer of tile 'state's attorney con-
tains the following allegation:
"That there is in existence and opera-
tion within the Coro ,_tat.. limits of the
City of • Plant City a...ci the adjacent ter-
ritory, , an electric powYer company and that
:C
in said petition. However, within the pur-
view of chapter' 17112, Laws of Florida,
Acts of 1933, this a:Sp011dei-IL alleges as
matter l of law, that at. existing and op-
elating electric power company and the
gas plant and distribution S ✓' s e ii re:fel:red
to in said petition, arc of similar char -
actor and .that by reason 01 section 3,
cliaoter 17112, ..laws of Florida, _da, !sets of
1935, and that the revenue debentures
sought in said petition to be validated,
should not and can not he lawfully vali-
dated t. in accordance dance with the prayers Of
said petition since said electric power
company and the said gas plant and dis-
tribution :system are similar 10 character
as 0 matter of law, since both. 0031)1y teat
for domestic and commercial uses which
the re )orident • alleges t0 X10 true. This
respondent does not deny the method as
manner of the operation of said electric
company tad -:either • does it deny the
0/011100 and manner of the operation of
2110 gas g 10_fl and the distribution system
referred to in said petition but shows -ante
the Court that in view of the aforesaid
statute that said petitioner is not author-
ized to issue said revenue debentures and
this • respondent urges this Court, based
upon said allegations of fact, to construe
the iavz •to •be that said electric• company
and the gas plant. and distribution system
hereinbefore •referred to, are of similar
character."
So the proposition of law to be decided
i
is whether or not a Tampa electric utl,ii,.; ,..
having operations being carried on in
Plant City must consent to the establish-
ment by Plant City of a gas plant of the
character, and for the municipal purposes.
herein before described, in order to avoid
the restrictive provisions of the statutory
proviso line. emabove quoted.
That such statutory restriction wouit
be applicable to a proposed new Plant CJ.', •
electric utility there can be no doubt. Bl:
is a gas plant "system, work, projgct
or utility of a similar character" to « co-
existing electric utility, within the.
pur-
view of the statutory provision r qu.rin:
the consent of the competing utility to
secured where it is sought t to est blid:
new utilities under chapters 17118 and
17119, supra, in territory already cruel
by existing t. il,i cl C.;:
We think. the chancellor properly
swered tare last-stated question in the
ative under the circumstances sin w r
the record hi this case. Here, altl o .,a
there is an existing electric utility wIoli
is avalablcto supply electr_cai h
aa eat,
and energy to some, Or perhaps all, Ci.
ie proposed customers of the 9001101 .
gas plant and to that extent serve
needs of the comb unity for heat, ,:
and .nergy, yet it, _0 a. matter of con•
men ki:oww ie lgc tonal gas atld h electric
ities are i11 no 501150 utilities. of a ...�. .
character when considered 00 com c...:.'
of eaach oh•ner in the Sane to rito y, IY.
,
cause the _Ise of both electricity and •
in
the same business or household .. ..
ammo _ .dice -0rie being used for
purpose, the other for .another,
neither occupying- the sane hold
sumer .:eon_.
The restriction of the statute
.d to avoid the wastefulness of 10.
couraging duplicate capital invest :heir,
for competing utilities that could not '....
i-y be operated .without financially lool,'
,,inn; • ach others operating revent.w ._
erected in the 0111100 consumer territti
[ 2.i
pear in
001 for
in Plan
,rritor_.
electric
some 2'
1lnsta0
?s not
to the
lhurvievc
chapter
17119,
It tint
decreed
decree
COtuhty,
and ap
hereby
0rllliiy
rt
ten
3108, C
:or 112
rehearh
'PT L
TERRi
s l., co:
13'131
Eieei
`Jit
cu
petition but shows uri'
1 view of the a1oresai
petitioner isnotautho
revenue debentures ai
hrgcs dais Court, b.:
ons of fact, to coihs`;t
it said electric com cos'
and distribution sysfr
rred to, are of simil;:
on of law to be deccii,
a Tampa electric uti;i'
s being carried on
consent to the cstabi
ty of a gas plant of
. the *_municipal pur pt
ribed, in order to a
visions of the statu. ';
ve quoted.
utory restriction w
proposed new Plant
re can be no doubt.
"system, work, projt7'
nilar character" to :,
.E.
utility, within the Iliar
story provision regal `:.
e competing, .utility to
is sought to eltahlh;l
ier chapters 17118 r,
territory already sere':
es?
chancellor properly
ated question in the
circumstances shown
is case. here, altluxs
ng electric utility v,I,;a.'
pply electrical heat,
ome, or perhaps ,.�.
toulors of the propo.
that extent scrvc
pmt. pity for heat, 1, '
it is a matter of t' '
hat gas and electric
:nse utilities. of a sine
;oasidered as cornpe`. t
the sp :le tcrrilory
both electricity and
dress or household
—one being used f
:1cr for a;0))11er. ..
same Geld of �...
4t. o n of the s •1,t[
i the waste. ,,. i s ,. .
ate capital 11030
,lilies that could not
11100t financially
's open ... g :000 0
,0..lc Consumer
LI10 iilS v. CITY OF ,liI.ii ONVILLII
... • 17.; S0.
{2j • No such situation is 11.081 to aril_ certificates did not undertake to mortga o
r in this case. `Hence- the statue does plant, to ;,ledge• taxing power of city, or to
t forbid the 'institution of a gas plant obligate municipal revenue other than that
from paint, held, not required to be approved
by electors udder constitutional requirement
that issuance of municipal `bonds" be so
approved (Acts 18$7, c. 3775, 75, a s amended;
Consl. art. 5 e, as amended in 1030).
[Ed. Note. -1tor other definitions 02. •
"Bond, see Words & 2hrases.]
Plant City to serve the same consumer
rritory that is now being served by an
ctric utility operating from Tampa,
cc 20 miles removed. Under the cir
.:,stances shown; the proposed gas plant
not a utility Of a "similar character"
the existing electric plant, within the
view of the restrictions set forth in
e.,,pter 17118 as amended by chapter
1.19, Acts 1935.
it therefore is considered, adjudged, and
.recd by this court that the validation
.eree of the circuit court of Iiillsborougih
•,linty, in planner and form as entered
appealed from be, and the same is
nby affirmed, and that ;mandate in con -
'uity with this judgment do issue with-
ten days as provided for by section
a. C. G. L., section 3298, R.G.S. chap-
11854, Acts 1927, if no petition for
fearing has been ;led within that period.
ELLIS, C. J., and WHITFIELD,
R'.ZELL, • BROWN, and BUFORD,
concur. •
0000118 v. CITY O. ufi :vi1 CP V .L.
et c i.
Appeal from Circuit Court, Duval Coun-
ty; A. D. McNeill, Judge.
Proceeding by the City of Jacksonville
against the State, for the validation of
;municipal revenue certificates to be issued
for the iilmprovellhent of an existing munic-
ipal electric plant, wherein T. L. Brooks,
taxpayer, intervened. From decree of
validation, intervener appeals.
A :irened.
Truett &. Shea, of J acksonvilie, for ap-
pellant.
Austin Miller, of Jacksonville, for ap-
pellees.
DAVIS, Justice.
The City of• Jacksonville is governed by
and acts under chapter 3775, Acts 1887, as
Iran) time to time amended and supple-
mented by subsequent. Pi.cts of the Legis-
.aturc. • By its .charter it is authorized to
o.ar., operate, and maintain a municipal
electric light plant and - has done• so for
many years last a51.
Co January 12, •1937, the acosonviile
City Council (the e Y 1u niC jiaii ✓ legislative
Supreme Court of .1.,,•ida.
i ocy) clnly enacted an ordinance No. .X-
March 27, 1E7.
_1 as follows : •
"I • "ti : Ordinance Providing for the
c.iC�..t.ity �i i � -b Con -
C v cf Ja:lisonvb.e, ici tiibli, O; strnction of ;Extensions and Improvement
e ;1131101;' 1 5 pl'0ri1 ;tor of e1 S`. .. ": the •.; runic :poi Electric Plant Of the
n, l generating .ion Ciiy of Jacksonville, Florida, so as to In-
i � :e• :i;11� tee_ >> :�; ih..� ,cs�. �.`
1. Vvas required to keep .._id ..aiatain crease the Appliances for the Manufacture:
rOaSOYa,,.y 11 ;7 .rte of luduc_ and :Distribution 10 Electricity as may be
1111010003' for utility and benefit of mu- - ecessary to auriish Samc t0. .hose lak-
and Using such Electricity; ; and for
;it 1 y 5 inhabitants, and co r 1 � � ,
tstc... > with ,,.i0 y c ss F.L.nce of :1,250,000.00 Revenue
.t,lt!.viity to deal (._es _a37, c. 3.775, as Certidc.atzs of the City of Jack.sonvilic,
l,a'� to. is Payable Sorely from . :eve -
i }erived from the Operation of •said
Ai,;,;iCi; al 000 porn -00110 meetric Plant to inance the Cos` of
Proposed issuance of negotiable i.eveif l5 Saco Construction..
"t100itcs by eit3' 01 _`aCIISOO iii,, i... j11 "Be it ordained by the Mayor and City
;'10500 of cxw_.ag v C0 . C 3.. o1, I2.-n Council of the City of d00luoville:
1.156 Fla. 564 SOUTHERN REPORTER, 2d SERIES
hour before the incident. The officer testi-
fied that appellant appeared to be under
the influence of alcohol and told him that
he was coming from a bar. Additionally,
appellant points to his tripping over the
telephone cord while in the apartment and
his mistaking the women's apartment for
his friend's apartment as mistakes an in-
toxicated person might make. Finally, ap-
pellant points to the fact that the officers
found him passed out in the laundry room
of another building twenty minutes after
being chased out of the women's apart-
ment.
However, as the state correctly points
out, the appellant has failed to include the
following facts: that Officer Eischen de-
scribed him as under the influence but in
good shape, that the two occupants, who
had a conversation with him, testified that
he was not intoxicated at the time.
Thus, there was substantial competent
evidence to support the jury's finding that
appellant was not too intoxicated to form a
specific intent. Based on the foregoing, we
affirm on this point.
AFFIRMED IN PART; REVERSED IN
PART; REMANDED.
system. The Circuit Court, Duval County,
Gordon A. Duncan, Jr., J., granted summa.
ry judgment for city, and appeal was takes.
The District Court of Appeal, Miner, J.,
held that statute requiring party to obtain.
adjacent utility's consent before construct,
ing water and sewage system was not ap
plicable to city seeking to construct sub
services in previously unserved area.
. Affirmed.
Municipal Corporations X270, 271
Waters and Water Courses <,194
Statute requiring party to obtain adjs.
cent utility's consent before constructing „ 41
water and sewage system was not applies,
ble to municipal corporation seeking to con.
struct such services in previously unserved
area; statute prohibited only direct es.
croachment by one utility provider into op,
erating area already served by another.
West's F.S.A. § 180.06.
DOWNEY and WALDEN, JJ., concur.
Herbert R. Kanning, Jacksonville, for op
pellant.
James L. Harrison, Gen. Counsel, and
Anthony B. Zebouni, Asst. Counsel, Jack.'
sonville, for appellees.
ORTEGA UTILITY
COMPANY, Appellant,
v.
CITY OF JACKSONVILLE, a political
subdivision of the State of Florida, and
Salem A. Salem, Director, Department
of Public Works, City of Jacksonville,
Appellees.
No. 89-43.
District Court of Appeal of Florida,
First District.
July 6, 1990.
Rehearing Denied Aug. 22, 1990.
Water utility brought action to enjoin
city from constructing water and sewage
MINER, Judge.
The pivotal issue in this appeal is whelp, ;#
er, under the facts of this case, the pro j t
sions of section 180.06, Florida Statutet,
apply to the City of Jacksonville City)„
We hold they do not and thus affirm the
summary final judgment entered by ti.
trial court in the City's favor. 4
Appellant, Ortega Utilities Co., (Ortega
is a private utility company providing aw.
ter distribution and waste water collection
services within a specified area (certificated,;<`
area) of Duval County. On October 1t,
1987, appellee, City, published an invitatioi,,,
to bid for the construction of a sewage
pump station, a sewage force main and a;.
water transmission main to be located nwr•,
but outside, Ortega's certificated area.
eon
tiv(
$uc
lath
whi
part
mug
ty
of a
adja
Oi
ma /;
an a;
provi
cone(
tinsel
know
Trade
Hnea,
projef
agree
On
comp!'
by the
mary
the m,
the pa/
ties ap
was in
develol
serve 1
titer, ti
its cap
ad area
that th
10,000,C
was the
that cal
At th
judgmer
for sumi
fag the
Orteg:
nearly
eviden,
to the
court's
these
water
Its ow t
The ne(
mrt, Duval County,
J., granted summa-
,d appeal was taken.
Appeal, Miner, J.,
ring party to obtain
nt before construct -
system was not ap-
. to construct such
nnserved area.
is «270, 271
tirses 0194
,arty to obtain adja-
before constructing
em was not applica-
ltion seeking to con -
previously unserved
ed only direct en-
ity provider into op-
served by another.
Jacksonville, for ap-
Gen. Counsel, and
1sst. Counsel, Jack-
:his appeal is wheth-
this case, the provi-
6, Florida Statutes,
Jacksonville (City).
ind thus affirm the
ent entered by the
's favor.
tilities Co., (Ortega),
ipany providing wa-
iste water collection
ied area (certificated
y. On October 14,
blished an invitation
uction of a sewage
;e force main and a
in to be located near,
certificated area.
ORTEGA UTILITY v. CI
Cite as 564 So.2d 1156
On November 6, 1987, Ortega filed a
complaint seeking declaratory and injunc-
tive relief against the City alleging that
such planned construction constituted a vio-
lation of section 180.06, Florida Statutes,
which provides, among other things, that a
party wishing to construct such facilities
must obtain the consent of any municipali-
ty or private company operating facilities
of a similar character in the immediately
adjacent area.
On December 30, 1987, the City and Wil-
ma/Skyland Joint Venture, Ltd. executed
an agreement whereby the City agreed to
provide water distribution and waste water
collection services to an area previously
unserved by either the City or Ortega
known as the Jacksonville International
Tradeport Project. Thereafter, utility pipe-
lines, lift stations and other works and
projects were constructed pursuant to this
agreement.
On September 26, 1988, after its initial
complaint had survived a motion to dismiss
by the City, Ortega filed a motion for sum-
mary judgment and, prior to a hearing on
the motion, a stipulation of fact between
the parties. Among other matters, the par- g
ties agreed that Ortega's sewage capacity u
was insufficient to meet the needs of the
development which the City intended to dh
serve by the construction at issue and, fur-
ther, that Ortega had no plans to expand an
its capacity or seek to enlarge its certificat-
ed area. On the other hand, it was agreed wa
that the City had the capacity to treat se
10,000,000 gallons of sewage per day and us
was then using only twenty -five percent of mu
that capacity.
ser
At the hearing on Ortega's summary poi
judgment motion, the City moved ore tenus po
for summary judgment. In its order grant- sta
ing the City's motion, the trial court found: 1
Ortega is a very small utility operating ties
nearly at the limit of its capacity with no wh
evidence of being able to provide services me
to the areas in question. From the ed
court's review of the facts, it appears wer
these projects would require a regional cor
water system or a significant system of Flo
its own to satisfy its mammoth needs. pro
The needs of this project require a signif- so
TY OF JACKSONVILLE Fla. 1157
(Fla.App. 1 Dist. 1990)
icant utility system. The City is the only
system capable to serve and there is no
other utility in the distant area of similar
capability or character as possessed by
the City which is required by this vast
project (Duval and Wilma).
From an order denying Ortega's motion
for rehearing, the instant appeal was tak-
en.
The statutory section in question autho-
rizes municipalities and private companies
that operate waste and sewage systems to
construct pumping stations pipelines and
other facilities incidental to their function.
t further provides:
However, a private company or munici-
pality shall not construct any system,
work, project or utility authorized to be
constructed hereunder in the event that a
system, work, project or utility of a sim-
ilar character is being actually operated
by a municipality or private company in
the municipality or territory immediately
adjacent thereto, unless such municipali-
ty or private company consents to such
construction.
Ortega urges that the trial court erred in
ranting the City's motion for summary
dgment based upon erroneous findings
at the City's construction was not "imme-
ately adjacent" to appellants' operations
d that the utilities operated by the par-
s were not of similar character. The
ty argues not only that the trial court
s correct in its findings but further that
ction 180.06, Florida Statutes cannot be
ed to limit the broad powers granted
nicipalities to provide water and sewer
vice. To this latter argument, Ortega
nts out that the City does not have the
wer to ignore an otherwise applicable
Lute.
n analyzing the arguments of the par-
, we find that we need not address
ether the City's construction was "im-
diately adjacent" to the services provid-
by Ortega or whether the two services
e of "similar character ". The City is
rect in asserting that section 180.06,
rida Statutes, should not be applied to
hibit the construction in question. We
conclude not because of the City's au-
1158 Fla. 564 SOUTHERN REPORTER, 2d SERIES
thority to provide such services but rather
because the statute does not prohibit con-
struction of these services in previously
unserved areas.
In State v. Plant City, 127 Fla. 495, 173
So. 363 (1937) the supreme court defined
the purpose of the statutory predecessor of
section 180.06, Florida Statutes, as follows:
The restriction of the statute was de-
signed to avoid the wastefulness of en-
couraging duplicate capital investments
for competing utilities that could not like-
ly be operated without financially jeop-
ardizing each other's operating revenues
if erected in the same consumer territo-
ry.
Id. 173 So. at 364. The briefs of the par-
ties explore at considerable length what is
meant by the term "immediately adjacent ".
As we view the matter, however, the confu-
sion in section 180.06 is not in the definition
of that term but rather in that phrase's
referent, i.e., what are the objects or terri-
tories that must be immediately adjacent to
one another so that consent is necessary?
The fundamental question presented, then,
is immediately adjacent to what?
While the statute is not a monument to
clarity and draftsmanship, in light of the
above supreme court definition of purpose,
we interpret it only to prohibit direct en-
croachment by one utility provider into an
operating area already served by another.
Any other interpretation would not seem to
comport with logic or reason. Under our
interpretation, there would be no duplicate
capital investment within the same consum-
er territory. Rather, the City would mere-
ly extend utilities service to a previously
unserved area. Moreover, it would be ano-
malous in the extreme to interpret section
180.06 to require the City to obtain Orte-
ga's consent to serve the unserved when
Ortega has neither the capacity nor any
future plans to provide such services.
Accordingly, the summary judgment ap-
pealed from is herewith affirmed.
SMITH and ZEHMER, JJ., concur.
Laura DOUGLAS, Appellant,
v.
The FLORIDA STATE BOARD OF
REGENTS, etc., Appellees.
No. 89 -1462.
District Court of Appeal of Florida,
Third District.
July 10, 1990.
An Appeal from the Circuit Court for
Dade County; Ronald Friedman, Judge.
Spencer and Klein, and Samuel B. Rein-
er, II, Miami, for appellant.
Stuzin and Camner, and Diane D. Ferra-
ro, Miami, for appellees.
Before BARKDULL, LEVY and
GERSTEN, JJ.
PER CURIAM.
Affirmed. City of Clearwater v. Stude-
baker's Dance Club, 516 So.2d 1106 (Fla.
2d DCA 1987); Malver v. Sheffield Indus-
tries, Inc., 502 So.2d 75 (Fla. 3d DCA 1987);
Glendale Federal Savings and Loan Asso-
ciation v. Department of Insurance, 485
So.2d 1321 (Fla. 1st DCA), review denied,
494 So.2d 1150 (FIa.1986); § 45.061, Fla.
Stat. (1987).
Allen David SHIVER, Appellant,
v.
STATE of Florida, Appellee.
No. 88 -1051.
District Court of Appeal of Florida,
First District.
July 10, 1990.
Defendant was convicted of second -de-
gree murder following trial in Circuit
c
J,
A
v;
st
fa
se
1.
du
pa
de
ter
va
wa
fri
like
bo(
obE
the
2. 1
opi]
as
thr4
con
ser'
F.S.
M
lant
R
Bras
laha
BI
Ti
apps
muri
issue
firm
In
volt'(
Flori
with
intox
she
the award,
;d only to
incorrect;
as addi-
;ury, which'
jury inter -
utally con -
Is concern-
f damages.
Kimbrell,
id John W.
Miami, for
Greene &
Miami, for
J., and
t is
CITY OF POMPANO BEACH V.
Cite as, FIa.App., 389 So.2d 283
intentioned, served only to suggest to
ury that its decision was incorrect.
court went beyond polling the jury.
additional questioning disclosed that
ry, which returned with a signed spe-
'jury interrogatory three times, became
tally confused by the court's explanations
rning reductions and net amounts of
ages. Adkins v. Seaboard Coast Line
road Co., 351 So.2d 1088 (Fla. 2d DCA
The verdict returned prior to the
's explanations of the consequences of
rtionment expressed the jury's decision
must be reinstated.
Reversed and remanded with directions.
OLTMAN Fla. 283
CITY OF POMPANO BEACH, Appellant,
v.
L. M. OLTMAN, Gerald F. Glass and Floyd
F. Toomey, and other not named but
made parties as members of a class,
Appellees.
No. 78 -197.
District Court of Appeal of Florida,
Fourth District.
Oct. 8, 1980.
Rehearing Denied Nov. 13, 1980.
w
0 3 KEY NUMBER SYSTEM
!nt in the
trial court
2r, and re-
-o the trial
for Louis
in accord -
y the jury
y the trial
atory, the
curred by
letermined
1, as a pe-
tutomobile
umer, and
enn Insur-
e the driv-
ioning the
P8,000 rep -
damages.
pportioned
awrence v.
346 So.2d
Tones, 280
court was,
re further,
the' jury
1, however
CITY OF MIAMI BEACH and the
State of Florida, Appellants,
v.
LPIN, INC., a Florida Corporation,
Appellee.
No. 80-70.
District Court of Appeal of Florida,
Third District.
Oct. 7, 1980.
Rehearing Denied Nov. 12, 1980.
Appeal from Circuit Court, Dade County;
M. Turner, Judge.
John A. Ritter, City Atty. and Alan K.
us, Asst. City Atty., Janet Reno,
te's Atty. and Theda R. James, Asst.
te's Atty., for appellants.
Joel. Hirschhorn and Harry M. Solomon,
iami, for appellee.
In a class action, injunctive relief was
sought in regard to rate ordinance requir-
ing out -of - -city users of city's water system
to pay double the rates applicable to in- -city
users and an award of money damages was
sought for the amount of alleged- wrongful
charges. The Circuit Court, Broward Coun-
ty, Stephen R. Booher, J., awarded money
judgment against city, determined the rates
which city should have charged out -of --city
users and awarded interest on the amounts
found to be excessive, and city appealed and
plaintiffs cross appealed. The District
Court of Appeal, Fourth District, Fagan,
Osee R., Associate Judge, held that: (1) trial
judge erred in engaging in rate making; (2)
inclusion, within the judgment, of interest
on an unliquidated amount in dispute was
clearly erroneous; and (3) city had no duty
to explain and justify its actions in setting
the rates where a prima facie case of inval-
idity based on competent evidence had not
been established.
fore BARKDULL, HENDRY and
WARTZ, JJ.
ER CURIAM.
t
Affirmed. See Bloch v. Frick, 12 So.2d
'(Fla.1943); § 78.02 Fla.Stat. (1979).
firmed.
Reversed.
Anstead, J., specially concurred and
filed opinion.
1. Waters and Water Courses e.,203(12)
In class action in which validity of ordi-
nance requiring out of- -city users of city
284 Fla.
9 SOUTHERN REPORTER, 2d SERIES lose
water system to pay double the rates of
in -city users was challenged, trial judge
erred in engaging in rate making.
2. Interest 0=19(1)
In class action in which validity of ordi-
nance requiring out -of -city users of city's
water system to pay double the rates appli-
cable to in -city users was challenged, inclu-
sion, within the judgment, of interest on an
unliquidated amount in dispute was clearly
erroneous.
3. Corporations c=,3821/2
Inherent in authority to own and oper-
ate a utility is the authority to set reasona-
ble rates and charges for its services and
the power to do all things reasonably neces-
sary in the conduct of such functions.
4. Municipal Corporations e619
Municipality must furnish utility serv-
ices to all its users at reasonable and non-
discriminatory rates, and state courts will
intervene and strike down utility rate ordi-
nances which are proven to be unreasonable
or discriminatory.
5. Municipal Corporations '619
Utility rate making by municipalities is
a legislative function reviewable by courts
as are all legislative actions, but authority
of courts in such matters is limited to mak-
ing a judicial determination as to validity of
the rate ordinances, and courts may not
engage in rate making.
6. Municipal Corporations c=.619
City has right to charge higher rates to
users of its utility system outside city than
to users inside city.
7. Municipal Corporations x619
Though utility rates must be reasona-
ble and nondiscriminatory, municipality is
entitled to make reasonable profit from its
utility operations and to use the proceeds
thus derived for other valid municipal pur-
poses.
8. Municipal Corporations 0=122(2)
Utility rate ordinance is presumed val-
id, and burden rests on those who attack
the rates to clearly demonstrate that they
are arbitrary, unreasonable or discriminato-
ry.
9. Waters and Water Courses a= 203(12)
City had no duty to explain or justify
its decision to require out-of-city users of
city's water system to pay double the rates
applicable to in -city users where prima fa-
cie case of invalidity based on competent
evidence had not been established.
Arthur C. Koski of Koski, Mateer & Gil-
lespie, P. A., Boca Raton, for appellant.
Roger H. Harper of Delray Beach, for
appellees.
FAGAN, OSEE R., Associate Judge.
The City of Pompano Beach appeals from
an adverse final judgment rendered in a
class action brought on behalf of users of
the city water system. The complaint at-
tacked the validity of a rate ordinance re-
quiring water users outside the city to pay
double the rates for in -city users. Plain-
tiff appellees sought injunctive relief and
an award of money damages for the
amount of the alleged wrongful charges.
The suit was brought in May, 1967, and
following various evidentiary hearings be-
fore the trial judge in 1971 and 1972 a Final
Judgment was rendered November 7, 1977
which declared the rates for users of water
outside the city to be unjustly discriminato-
ry and illegal. The final judgment awarded
a money judgment against the city for the
sum of $338,282.10, being only a portion of
the difference in revenues collected under
the rate ordinance held to be invalid, and
the court awarded pre - judgment interest of
$189,754.23. The trial judge made his own
determination as to the rates that the city
should have charged water users outside the
city in excess of the rates charged users in
the city and awarded interest at 6% on the
amounts he found to be excessive for each
of the years the rate ordinance was in ef-
fect prior to the date of the judgment.
All the property involved here is now
included in the corporate limits of the city.
The city has appealed on various grounds
and plaintiff - appellees have cross - appeal-
ed, agref
the trial
making.
[1, 2]
we now
and cone
erroneou:
pano Bea
justify it
utility r:
charge u:
limits a
within th
costs of
the trial
making,
the inclu:
an unliqu
erroneous
stad, 256
The cit
and an
rates eh:
users oul
charged
present
ordi nance
similar a(
Following
the city
and that
tiffs wer
additiona
denied.
Plaintil
the testir
entire the
high a "r:
and that
from user
within ti
reached 1
tions bas
data fror
conclusior
The witn1
-sled to
everythin
or within
not entitl
ment, ".
203(12)
r justify
users of
he rates
rima fa -'
mpetent
CITY OF POMPANO BEACH v. OLTMAN
Clte as, Fla.App., 389 So.2d 283
teeing with the city, however, that
al judge improperly engaged in rate
ng.
21, We reverse for the reasons that
'row, summarize. The findings of fact
conclusions of law were based on two
neous premises: that the City of Pom-
"'Beach is under a duty to explain and
fy its legislative decisions in setting its
t rates and that the city may not
users residing outside the corporate
a different rate than that charged
ii'the city (except for actual additional
''of rendering such service). Further
trial judge erroneously engaged in rate
ng, a legislative function. And finally,
inclusion in the judgment of interest on
,liquidated amount in dispute is clearly
neous. Bryan and Sons Corp. v. Klef-
'256 So.2d 382 (Fla. 4th DCA 1972).
e city adopted a rate ordinance in 1965
an amended ordinance in 1968. The
charged under both ordinances to
outside the city were double that
;d to users within the city. The
nt suit first attacked the 1965 rate
ance and was later consolidated with a
miler action attacking the 1968 ordinance.
flowing the close of plaintiffs' evidence
'city moved for judgment in its favor
that motion was renewed after plain -
fs were allowed to reopen and present
additional evidence. These motions were
denied.
Plaintiffs' evidence consisted primarily of
the testimony of an expert witness whose
entire thesis was that the city earned too
high a "rate of return" on its water system
and that the "rate of return" was greater
from users outside the city than from users
within the city. These conclusions were
reached by plaintiffs' "expert" by calcula-
ns based on assumed and unsupported
Bata from which were drawn the varied
conclusions to support an erroneous thesis.
he witness testified that the city is enti-
tled to "... no rate of return because
everything is taken care of above the line,
or within their operations. ", that the city is
not entitled to make a profit on its invest-
ment, ".... they have no equity. The
r & Gil-
)pellant.
ich, for
ge.
ds from
>dina
lsers of
lint at-
nce re-
to pay
Plain -
ief and
or the
harges.
37, and
igs be-
a Final
7, 1977
water
ninato-
varded
or the
Lion of
under
d, and
rest of
is own
le city
de the
;ers in
Jn the
r each
in ef-
;ment.
now
city.
ounds
ppeal-
Fla. 285
profit is on equity." The witness further
testified that the "rate of return" as calcu-
lated by him was above 9.9% and "I believe
that is an excessive rate of return." After
later calculations this witness made new
determinations that the "rate of return" for
the entire water system was 12.01% with
outside users contributing 17.89% and in—
city users contributing 9.52%. His later
testimony was that an 8% "rate of return"
was proper, and that users both in and
outside the city were paying rates in excess
of those which would produce his deter-
mined "reasonable rate of return." In re-
sponse to a question by the court as to
whether there was a recognized increased
cost of service to water users outside the
city this witness answered, "No sir."
Plaintiff also produced a witness who was
then sheriff of Broward County and a for-
mer Pompano Beach city commissioner, who
testified that additional water rates were
charged to those outside the city because of
the many advantages otherwise provided by
the city to those in proximity to it.
Plaintiff's final witness was the city engi-
neer who testified that additional charges
are necessary for water users outside the
city because of increased pumping capacity
and pressures required, the greater expense
of distribution of water to such users, the
greater demands on the total system be-
cause of such outside additional users in
larger feeder mains, additional peak —load-
ing, additional plant capability, and addi-
tional well field and storage capacities re-
quired. Such testimony, by which plaintiffs
were bound, in no way supported their posi-
tion.
[3] Inherent in the authority to own and
operate a utility is the authority to set
reasonable rates and charges for such serv-
ices and the power to do all things reason-
ably necessary in the conduct of such func-
tions. Gainesville Gas & Electric P. Co. v.
City of Gainesville, 63 Fla. 425, 58 So. 785
(1912); State v. City of Miami, 113 Fla. 280,
152 So. 6 (1933); State v. City of Miami, 155
Fla. 180, 19 So.2d 790 (1944).
286 Fla.
389 SOUTHERN REPORTER, 2d S1ES
[4, 5] A municipality must furnish utili-
ty services to all its users at reasonable and
non — discriminatory rates, and Florida
courts will intervene and strike down utility
rate ordinances that are proven to be un-
reasonable or discriminatory. Storey v.
Mayo, 217 So.2d 304 (Fla.1968).
Utility rate making by municipalities is a
legislative function reviewable by the
courts as are all legislative actions, but the
authority of the courts in such matters is
limited to making a judicial determination
as to the validity of such rate ordinances.
Courts may not engage in rate making,
since this is an unlawful incursion in the
legislative arena. Cooper v. Tampa Electric
Co., 154 Fla. 410, 17 So.2d 785 (1944);
Mohme v. City of Cocoa, 328 So.2d 422
(Fla.1976).
[6] The city has the clear right to
charge higher rates to users of its utility
system outside the city than .to users inside
the city. Clay Utility Co. v. City of Jack-
sonville, 227 So.2d 516 (Fla. 1st DCA 1969);
Mohme v. City of Cocoa, supra. The Su-
preme Court, in Mohme, discussed at length
the problems created for Florida cities by
those on the urban fringe who enjoy but
fail to pay their proportionate share of the
cost of municipal services, and concluded
that a differential in utility rates is justi-
fied to help defray other costs which "..
cannot be pinpointed even under sophisti-
cated cost accounting techniques." Mohme,
p. 425. That the property and homes of
plaintiffs are now within the corporate lim-
its of the city buttresses the observations
made by Mr. Justice Sundberg in Mohme.
[7] While its utility rates must be rea-
sonable and non — discriminatory a munici-
pality is entitled to make a reasonable prof-
it from its utility operations and to use the
proceeds thus derived for other valid munic-
ipal purposes. Hamler v. City of Jackson-
ville, 157 Fla. 240, 25 So.2d 648 (1946);
Town of Riviera Beach v. State, 53 So.2d
828 (Fla.1951); Pinellas Apartment Ass'n v.
City of St. Petersburg, 294 So.2d 676 (Fla.
2d DCA 1974); Contractors & Builders
Ass'n v. City of Dunedin, 329 So.2d 314
(FIa.1976). One may logically ask how can
the public be better served than by the
provision of municipal services made possi-
ble through reasonable earnings of the mu-
nicipality from reasonable and competitive
rates charged to users of its publicly owned
and operated utility.
[8, 9] Like other actions taken by legis-
lative bodies, a utility rate ordinance is pre-
sumed valid, and the burden rests on those
who attack such rates to clearly demon-
strate that such rates are arbitrary, unrea-
sonable, or discriminatory. The city has no
duty to explain or justify its actions in
setting rates until such burden has shifted
to it by the establishment of a prima facie
case of invalidity based on competent evi-
dence. City of Tampa v. Tampa Water-
works Co., 45 Fla. 600, 34 So. 631 (1903);
Clay Utility Co. v. City of Jacksonville, 227
So.2d 516 (Fla. 1st DCA 1969); Mohme v.
City of Cocoa, 328 So.2d 422 (F1a.1976);
City of North Miami Beach v. Southern
Gulf Utilities, Inc., 339 So.2d 173 (FIa.1976).
The trial judge incorrectly construed the
evidence under the applicable controlling
law. Plaintiffs failed to make a prima facie
case by competent evidence of the invalidity
of the ordinances under attack, and we
therefore reverse with directions that a fi-
nal judgment be entered in favor of defend-
ant, City of Pompano Beach.
REVERSED.
HERSEY, J., concurs.
ANSTEAD, J., concurs specially with
opinion.
ANSTEAD, Judge, specially concurring:
I fully concur with Judge Fagan's opinion
and holding that the appellees failed in
their burden of proof. In addition, I believe
that a substantial part of the action was
barred by the doctrine of re judicata, there
having been a previous disposition adverse
to the appellees which was not subsequently
appealed or otherwise disturbed.
1
1
t
f
r
t
f
'1
c
f
d
n
ii
n
d
636 Fla.
59 SOUTHERN REPORTER, 2d SERIES
Fla. 52 So.2d 344; Knabb v. Duner, 143 Fla.
92, 196 So. 456.
Affirmed.
SEBRING, C. J., and ROBERTS
MATHEWS, JJ., concur.
w
0 KEY NUMBER SYSTEM
MAY v. HOLLEY et al.
Supreme Court of Florida,
Special Division B.
June 17, 1952.
and
Rehearing Denied July, 10, 1952.
Action by W. E. May against Georgia
Holley for judgment determining plaintiff's
title and Tight to demolish defendants build-
ing to the extent of its encroachment upon
plaintiff's land, and for an accounting for
rent. The Circuit Court, Volusia County, H.
B. Frederick, J., dismissed complaint with
prejudice, and plaintiff appealed. The Su-
preme Court, Taylor, A. J., held that com-
plaint which asserted conveyance by defend-
ant to plaintiff remote grantor, and en-
croachment on lot conveyed by building of
defendant, and which sought determination
of title and rights of plaintiff in connection
with building, stated cause for relief under
declaratory judgment statute.
Reversed.
I. Pleading C=360(4)
When bill of complaint is attacked up-
on several grounds, some of which go to
the merits of the controversy and some to
jurisdictional and procedural questions,
court, when entering order of dismissal,
should indicate reasons which motivated its
action in order that parties to controversy
may be apprised of same.
2. Cancellation of Instruments C=3
Where deed conveys more than either
vendor or purchaser had contemplated, no
right exists on part of purchaser to rescind,
although at common law purchaser might
have resorted to possessory action for pur-
pose of forcing vendor to institute suit.
3. Adverse Possession C=63(2) `•
A vendor's possession after convti"
is ordinarily subservient to the titi•1!
veyed.
4. Adverse Possession C=63(2)
Where deed by which vendor co
adjacent lot was not thought to cony
portion of building purportedly on'
tained by vendor, possession by veri. „.
building after determination that it a°
encroached upon lot conveyed was'n'
verse to purchaser if vendor's in
was to claim only to true boundary,.0,'
retained.
5. Equity C'62
Equity follows the law and, unle'':
usual circumstances showing an estop..3
waiver are disclosed, it will not hold „;
session of less than 7 years to have .;
ed into title to real estate.
Limitation of Actions C=180(7)
Where deed by which vendor cone
lot adjacent to that retained by him w )
thought by either party to be conveyatl
part of a building purportedly locate
land retained, and land involved was
quently conveyed to plaintiff who discov -'
that deed actually embraced part of
ing, complaint for judgment dete
plaintiff's title and right to demolish
ing to extent of encroachment and for:
counting for rents could not be properly,
missed on ground of statute of limits. ".
when determination of whether liniita■.
had run was dependent upon undiscl'
time of vendor's knowledge of mistake,
consequently time at which his poss
became adverse.
7. Declaratory Judgment «I
=a:
Under Nstatute authorizing declara.
of rights upon a bill of complaint, a d'
ration, or a petition or other approli
pleading, an action for declarant),':
rights may be made in a special stator
pleading without the pleader having to.
termine whether legal or equitable p
should apply. F.S.A. §§ 87.01, :q
8. Declaratory Judgment C=4
Prerequisites to entertaining of
ceeding for declaratory relief are bon .
and practical need for declaration, as
1
esent c
n the
nity, 1
is depc
ti'or pe
verse
matt
antal
before
resent,
rely fc
Ce or s:
t
Deolara
'.? Coni
t build
• perty
s rem
d.. been
lveyanc
ts and
dgment
E right
Croachn
ted cat
dgment
U. Gi
t.
ull, La
mpton I
TAYLO
laintiff
and am
ratory j
ts:
1938
ts` in the
id one of
Each. In
operty tc
ntiff in
y.tobem
gc previot
dined by
e four
'oh defe
s fact w<
-person
7 when 1
•'have bf
: onveyance
title con -
r conveyed
:onvey any
on lot re-
vendor of
it actually
as not ad-
intention
.ry of land
unless un-
stoppel or
hold pos-
ave ripen -
r conveyed
im was not
veyance of
located on
was subse-
discovered
t of build -
etermining
)1ish build -
nd for ac-
operly dis-
limitations
limitations
mdisclosed
iistake and
possession
leclaration
t, a decla-
ppropriate
aration of
1 statutory
'ing to de-
ble princi-
7.01, 87.02.
MAY v. HOLLEY
Cite as 69 So.2d 636
present controversy as to a state of facts
upon the law concerning which some im-
munity, power or right of complaining par-
ty is dependent, and that there be some per-
son or persons who have an actual present,
adverse and antagonistic interest in sub-
ject matter, either in fact or law, and that
the antagonistic and adverse interest all
be before court by proper process or class
representation, and that relief be not sought
merely for purpose of procuring legal ad-
vice or satisfying curiosity.
9. Declaratory Judgment C=3I8
Complaint which recited in substance
that building of defendant encroached upon
property conveyed by defendant to plain-
tiff's remote grantor and that defendant
had been in possession of building since
conveyance and had collected and enjoyed
rents and profits thereof, and which sought
judgment determining plaintiff's title to
and right to demolish building to extent of
encroachment and an accounting for rent
stated cause for relief under declaratory
judgment statute. F.S.A. §§ 87.01, 87.02.
J. U. Gillespie, New Smyrna, for appel-
lant.
Hull, Landis, Graham & French and J.
Compton French, DeLand, for appellees.
g of pro -
bona fide
,n, as to a
TAYLOR, Associate Justice.
Plaintiff below, appellant here, filed his
second amended complaint seeking a de-
claratory judgment, based on the following
facts:
In 1938 defendants owned two adjoining
lots in the City of New Smyrna Beach and
sold one of them to the City of New Smyrna
Beach. In 1941 the City conveyed this
property to T. W. Bush who sold it to
plaintiff in 1947. Plaintiff caused a sur-
vey to be made and discovered that a build-
ing previously thought to be on the lot
retained by defendants actually extended
some four feet seven inches onto the lot
which defendants had sold. Apparently
this fact was not known by defendants or
any person in plaintiff's chain of title until
1947 when the survey was made. Defend-
ants have been in possession of the building
since the sale of the lot and collected and
enjoyed the rents and profits of the build-
ing. Plaintiff's lot, except for the encroach-
ment, is vacant and unimproved.
The prayer of the complaint is for a
judgment determining plaintiff's title to and
right to demolish the building to the extent
of the encroachment and an accounting for
rents.
A motion to dismiss the complaint on
various grounds was filed. This motion
raises the question of the propriety of the
remedy, asserts that the complaint shows
laches and also asserts that the present
complaint is a departure from the prior
complaint.
[1] The motion to dismiss was granted
"with prejudice." On petition for rehearing
plaintiff asked for a modification of the
order of dismissal by elimination of the
words "with prejudice." This petition was
denied and plaintiff has appealed.
The decree of the lower court left coun-
sel and this court entirely in the dark as to
the grounds upon which the bill was dis-
missed. This should be avoided whenever
possible. When a bill is attacked upon sev-
eral grounds some of which go to the real
merits of the controversy and some to ju-
risdictional or procedural questions, the
parties have a right to know the reasons
which motivated the action of the courts.
As used in the order being reviewed the
words "with prejudice" might mean that
the court determined that the plaintiff had
no enforceable rights with respect to the
building in question, as appellee construes
it, or they might merely constitute an ad-
judication that plaintiff had not presented a
case coming within the statute authorizing
declaratory relief.
[2] It is clear that, if the allegations of
the bill are true, plaintiff's predecessor in ti-
tle had a cause of action against defendants
immediately after the delivery of defend-
ants' deed to the City of New Smyrna
Beach. Even at that time the nature of the
right and the appropriate remedy are none
too clear and are somewhat dependent up-
on the position taken by defendants. Or-
dinarily a simple possessory action is suffi-
cient to enable a vendee to recover posses-
638 Fla. 59 SOUTHERN REPORTER, 2d SERIES
sion from the vendor. But when, as here,
it is quite apparent that a mistake exists in
that a deed conveys a part of a building
that was not thought by either party to be
on the land conveyed, a different situation
is presented. The mistake is of such a na-
ture that, the possibility of rescission is im-
mediately suggested. But a purchaser has
no right to rescind because he has obtained
more than he bargained for. When the
vendor takes no action is the purchaser to
be required to resort to a possessory action
solely to force the vendor to institute the
suit that will almost inevitably follow?
At common law he probably would. Plain-
tiff contends that this is just the kind of
situation that the declaratory judgment act
was designed to relieve.
[3, 4] The facts before us disclose other
complications. Plaintiff is the remote gran-
tee of defendants' original vendee. A ven-
dor's possession after conveyance is ordi-
narily subservient to the title conveyed. 2
C.J.S., Adverse Possession, § 95, p. 652, 2
Am.Jur. 818, Adverse Possession, § 47.
This possession is now adverse to plaintiff.
At what time it became adverse to plaintiff's
claim of title we cannot say.
That is important in determining the
rights of the parties. See Sarasota- Fruit-
ville Drainage Dist. v. All Lands, etc., 157
Fla. 207, 25 So.2d 498.
If defendants' intention was to claim only
to the true boundary of the land retained
by them they may have acquired no rights
by adverse possession. Kilgore v. Leary,
131 Fla. 715, 180 So. 35.
[5, 6] Had plaintiff resorted to eject-
ment he would have been confronted with
a serious question as to parties plaintiff.
If the possession became adverse during
the time the City of New Smyrna Beach
owned the lot now owned by plaintiff the
statute has run and plaintiff has no title.
If defendants' possession became adverse
during the ownership of the lot by Bush
(plaintiff immediate grantor) the suit should
be by Bush for the use of plaintiff. But if
the possession became adverse since plain-
tiff acquired his deed the suit should be in
the name of plaintiff. We do not know and
we cannot say that plaintiff knows what
the defendants will contend or the eviT."
develop as to these. matters. Ce
there was no admission by the cow, t
sufficient to show the running of the
ute of limitations against plaintiff.
follows the law and, unless unusu"
cumstances showing an estoppel or
are disclosed, will not hold possesst ,
less than seven years to ripen into ,(„
to real estate. There is no departure ■
previous pleadings to justify dismi
the complaint on that ground. -4'~
The Chancellor was therefore in;, 4'%
in dismissing the hill unless it,di+:''}
present a case coming within the s,
authorizing declaratory relief which
vides:.
87.01 Scope: Jurisdiction of Ci
Court
"The circuit courts of the State
Florida are hereby invested with'iZ:;
thority and original jurisdictiofl'
shall have the power upon a filed ."
of complaint, declaration, petitio
other appropriate pleadings to de'
rights, status and other equitable or
gal relations whether or not further ,
lief is or could be claimed or pra =;
No action or procedure shall be +`
to objection on the ground that a`..
claratory decree, judgment or ord
prayed for. The circuit court's decl
tion may be either affirmative or
tive in form and effect and such G ;
court declaration shall have the ;:.
and effect of a final decree, judg+
or order. The circuit courts may
der declaratory decrees, judgmen`"
orders as to the existence, or non '1',
ence:
"(1) Of any immunity, power, pt
lege or right; or „r
"(2) Of any fact upon which t1i
istence or nonexistence of such r ++
ity, power, privilege or right do °`
may depend, whether such imm 'ill,,
power, privilege or right now exi ti „;
will arise in the future. Any pe
seeking a declaratory decree, jud
or order may, in addition to pra
for a circuit court declaration,-:
pray for additional, alternative, • ,
ve, subset
i the sari
1820, Sec.
87.02 Pc
"Any per
t
Or who may
'rider a dee
title, memc
riting or
equitable or
y a statute;
der statutor
ordinance,
'ise, or otl
strument
illined any
alidity ari5
• lation, mu
deed, will,
emorandu:
•r "any part
ration of rit
+le or leg
. ws 1943,
7] It will
hrased in
rites a de
i
of comp
e)' a declar
w) or a p(
fading. Th,
t an actio
r jr be made
without th
ether legal
"'ly, or, pert
ght be invo
e statute
'y'immunit;
t ='u`any fact
existence o
e'or right
tote also p
be either
flicult to fi
+'roader stop
to deny tl
enact the
rce to its la
tutional
its of the ju
tnt.
CHAPTER 93 -232
Committee Substitute for .House Bill No, 491
An act relating to public meetings and records; amending s. 286,011
exempting certain meetings of governmental agencies from the require-
ment that they be open to the public; establishing criteria for such meet-
ings; amending s. 119.07, F.S,; specifying that. the exemption from public
records requirements for records prepared by or at the direction of all
agency attorney is not waived by certain release of such records; providing
legislative findings; providing an effective date,
Be It Enacted by the Legislature of the State of Florida:
Section 1. Subsection (8) is added to section 286.011, Florida Statutes,
286,011 Public meetings and records; public inspection; es, to read:
Nn Wi h, t, t hIg tlhe p f' ,Penalties.,
Qf Snv at , ,. 2 rSiyisiorl f
of � �� ate ggns v n- . -° l n ' y ' r
nx_?_sQr1 r�rn}•iorl or r di env 1 '
�,ficer o the '� " ivic' ,
'-- W erg 21tt1Pnt iLit�'i lay_ .Ike it ,
Fl . 1 in o .1-1 et in it hp en ; +v a +
1 gerac:y. prnvi +tad t of w : I - , .
I h 1ti At alle thalj AdV]SA .
itr_ igL rlyit ,J1cerning the litigation,
"''�.`--The R 1 j dI)lAt
112 -.2ritri L' 4ci s r_ pia .dl r is Q ttterna„+ .,
+ _f..Zllt'I�D �
Y�trter el ��'' `� ' n't_41 1
,�• �L_ he tll 4 tlfled �7r+ wennrt..r m,•„
�LkG�917 �htt n T f cornrr,�r,�a,,
.roceedinKS, t, e nmm` f a Ar id +_pa. nt_aut _
h._ es --- �-- �••r�3easiun. e11
a f ell nangonu c-a h --�slb r, eat at an 1»•z _ une
_^- �x��Q_bartinn �f tt,o
^�-s`�• -� t rA Aai 1n SIlA 6 nff f•L•e _ ��� , .. k wj in it .LA 1 la I hg_,lIv ranazr;1,
-ilaw unable time � .�filert iti, ,
t
t,� �r,ri,1eY-clj ]t i ' �,CE1 ��4 1 li tics of t
@_+ nnr,he l�nane ofper5ona wi .,
sGi 1 a 1 omnleticar, =-" i1_ 1-- b1?ttendinv rl, o
d th e s-n o- =�:j • en ' „ • • _ g S scion a.t1 dn f te'eron~ _ateS"; . he i n t ligncy:sjisalugisaL th eeti i sh j
m 1 r unca Fh p in arc ne t o ern h ir' g the
(e) The transcript- shall be liiarie
th i.Ly1it -Ps1 S!ft.12€I4`i li
cora_upon c rirduzin., e•
Section 2.
•1 Paragraph (n) of suhection (.3) of section 119.07, Florida Statutes,
992 Supplement, is amended to read:
1I9.07 Inspection and examination of records; exemptions.—
1
CODING: Wards
t►tritken are deletions; wards tukerlined
are additions,
JUL -31 -93 SAT 9:37 Michael Wii,. More I I
91,34 42583131
P.0
AUG -19 -93 THU 14:10 chael Wm. More-11
vow
ADMINISTRATIVE AND GOVERNMENTAL LAW
(NVIRONMCNTAL AND LAND USE LAW
9! 4250301
+a✓
MICHAEL WM, MORELL
ATTURNET AT LAW
X10 WEST COLLEGE AVENUE
TALLAHASSEE, FLORIDA 3232)1 -1406
(Qo4) 4:5-83 10
(804) 4225 8301 FACSIMILE
TELECOPY TRANSMITTAL
NUMBER OF PAGES (INCLUDING COVER PAGE): 6
P.01
ALSO ADMITTED IN THE
DISTRICT OF COLIJMEJIA
TO: John Drago, City Administrator/ John Cook, City Attorney
FROM: Mike Morell
DATE: 8/19/93 TIME: 2 :15 p.m.
MESSAGE:
IF ANY PROBLEMS, CALL 904/425-8300
CONFIDENTIALITY NOTE
THE INFORMATION CONTAINED IN THIS FACSIMILE MESSAGE IS LEGALLY
PRIVILEGED AND CONFIDENTIAL INFORMATION INTENDED ONLY FOR THE USE
OF THE INDIVIDUAL OR ENTITY NAMED ABOVE. IF THE READER OF THIS
MESSAGE IS NOT THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT
ANY DISSEMINATION, DISTRIBUJTION OR COPY OF THIS TELECOPY IS
STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS TELECOPY IN ERROR,
PLEASE IMMEDIATELY NOTIFY US BY TELEPHONE AND RETURN THE ORIGINAL
MESSAGE TO US AT THE ADDRESS ABOVE VIA UNITED STATES POSTAL
SERVICE. WE WILL REIMBURSE YOU FOR THE COST OF POSTAGE. THANK
YOU.
ADMINISTRATIVE AND GOVERNMENTAL LAW
ENVIRONMENTAL AND LANO USE LAW
MICHAEL WM. MORELL
ATTORNEY AT LAW
31O WEST COLLEGE AVENUE
TALLAHASSEE, FLORIDA 321301-1406
(904) 4'5 - 0300
(904) 42n -A301 FACSIMILE
ALt ADMITTED IN THE
DISTRICT OF EOLUMB,A
August 19, 1993
Privileged & Confidential
Attorney Work Product
Not a Public Record
Via Facsimile Transmission and U.S. Mail
John R. Cook, Esquire
City Attorney
202 N.W. 5th Avenue
Okeechobee, Florida 34972
John Drago
City Administrator
55 S.E. 3rd Avenue
Okeechobee, Florida
Re: Status of 3 Cases: (1) City of Okeechobee vs. DCA and
Okeechobee County, DOAH Case No. 92- 4909GM (comprehensive plan
litigation); (2) OBWA v. City of Okeechobee, 93- 555-CA
(declaratory judgement action) ; and (3) OBWA's Application for
Consumptive Use Permit, SFWMD Application #921204- 10(OBWAIs
CUP Application)
Gentlemen:
The purpose of this letter is to confirm the details of our
conversations yesterday concerning the settlement and /or litigation
of the above- referenced three cases. I would also like to
Communicate to each of you my understanding of the status of each
case and what I have done with regard to the comprehensive plan
case and permit application case since our meetings yesterday.
1 have enjoyed working with you both in these matters. 1 look
forward to continuing to do so as the comprehensive plan
litigation, and my role in the litigation in general, winds down
and the declaratory judgement action and OBWA CUP Application fires
up. However, developments have been occurring very quickly in
these related cases. In Order to control costs, to continue
communicating with each other and to effectively represent the
City's "interests, it is very important that the City's
administrator and its attorneys have no misunderstanding as to the
status of each case and each individuals responsibilities regarding
settlement and /or litigation of that case.
Therefore, please review the following summary of cases and
contact me immediately if I have misunderstood or misrepresented
the details of our conversations yesterday. Also, contact me
immediately if your understanding of any of the facts or "to do"
items contained in the following case summaries is different than
mine.
r.
as 1 W.)). More I I
John Cook and John Drago
August 19, 1993
Page Two
Status:
Attorney
Responsible:
Deadlines:
=104 4258301 P.03
THE COMPREHENSIVE PLAN CASE
Case appears to be settling. All discovery
and preparation for final hearing have been
halted as of yesterday as per your
instructions.
Mike Morell and John Cook
Depositions of DCA's 3 witnesses were noticed
for August 26 -27 1993. These depositions
have been cancelled as per your instructions.
Counsel for all parties have been notified.
Witness preparation meetings were scheduled to
prepare the City's Expert Witnesses on August
25, 1993 and September 1, 1993. These
meetings have been cancelled as per your
instructions. Our witnesses have been
notified.)
Deadline for County Commission to meet and
execute Stipulated Settlement Agreement (SSA)
August 31, 1993. County Attorney Cassels
represented that he would send copy of SSA to
Karen Brodeen for DCA's approval and execution
as soon as possible. Please make sure Cassels
does this as obtaining DCA's timely approval
and execution may not be easy to accomplish.
After you and Cassels provide me with a copy
of the executed SSA, I will prepare a draft
agreed upon motion for abatement to be filed
with the hearing officer ASAP after August 31,
1993.
Deadline for City to serve answers by hand
delivery to County's First Interrogatories to
City is September 6, 1993. Assuming County
Commission votes to approve and executes the
SSA on August 31, 1993 and parties file agreed
upon motion to abate the proceedings before
September 6th, City should not need to serve
answers. However, should the City's
settlement understanding with the County
breakdown, John Cook should inform Mike Morell
immediately because a significant amount of
AUG-19-93 THLI 14:12 N i cha� 1 Wm. t4ure 11
John Cook and John Drago
August 19, 1993
Page Three
904 4258301
1
P.04
lead time, preparation and work will be
necessary to properly answer these
interrogatories and not waive any timely
objections which the City may have.
Deadline for completion of discovery is
September 14, 1993.
Deadline for DCA to convene pre - hearing
conference between the parties is September
14, 1993.
Deadline for parties to file pre - hearing
stipulation with hearing officer is September
17, 1993.
Deadline for parties to request continuance of
final hearing for good cause is September 27,
1993. Good cause shall not include failure to
reach settlement.
Final Hearing Begins October 4, 1993
OBWA's DECLARATORY JUDGEMENT ACTION AGAINST CITY
Status: City Council meeting with City Attorney on
Monday, August 23, 1993 "out -of- sunshine" to
discuss pending litigation.
Attorney John Cook and law firm selected to
Responsible: represent the City in this proceeding are
advising the City concerning legal
requirements concerning the "out -of- sunshine"
meeting, motion to dismiss, answer to
complaint, compulsory counterclaims, possible
third -party actions, answers to OBWA's
request for admissions, etc. John Drago
his provided Mike Morell with a copy of a
letter which indicates that he has instructed
the City's Bond Counsel to request financing
information from OBWA's application from
Farmers Home Administration. Mike Morell has
provided City Attorney with copies of
documents produced by County in ,response to
City's public records request. At this time
it is Mike Morell's understanding that he will
neither be putting in an appearance on behalf
of or representing the City further in the
declaratory judgement action. However, he
remains available for consultation as needed
John Cook and John Drago
August 19, 1993
Page Four
Deadlines:
and may be requested by the City.
Deadline for Motion to Dismiss is August 24,
1993.
Deadline for Answering OBWA's Requests for
Admission is September 20, 1993. 45 days from
August 4, 1993, assuming City was served on
August 4, 1993 at time of service of process.
OBWA's Application for Consumptive Use Permit
Status:
City's decision is pending: (1) OBWA's
decision as to whether to submit additional
information as requested by SFWMD in letter of
August 12, 1993 to Suzanne Harper; (2)
decision of SFWMD to either issue or deny
OBWA's; (3) possible default permit issuance
under Section 120.60, F.S.
Attorneys
Responsible: Mike Morell and John Cook.
Mike Morell is currently the only attorney
representing the City who has put in an
appearance before SFWMD on OBWA's application
for a consumptive use permit. John Cook
should notify Mike Morell as soon as possible
as to whether: (1) Cook intends to put in a
notice of appearance on behalf of the City;
(2) whether Mike Morell will continue to
represent the City in this permit application
matter, or (3) whether Mike Morell should file
a notice of withdrawal of counsel after either
Cook or another attorney who will be handling
the matter puts in an appearance. Until then
Mike Morell will immediately forward all
Copies of correspondence received from SFWMD
to Cook.
Deadlines: Deadline for OBWA to provide SFWMD with
additional information regarding modification
of service area is on or about September 13,
1993. Note: If OBWA does submit a revised
requested service area for only its members,
this is the service area map that should go
into the comprehensive plan settlement
agreement -- not the service area as defined
in the franchise ordinance or OBWA's original
application. John Cook should tend to this
AUG -19 -93 THIJ 14:13 F1 i c.F a I Wrn. More• 1 I
John Cook and John Drago
August 19, 1993
Page Five
917 4258301
"rM✓
P.06
detail in his dealings with John Cassels
Deadline after which default permit may issue
to OBWA ? ?? SFWMD Atto,•ney Cecile Ross is
on annual leave until August 30, 1993. Mike
Morell has call in to Tom Colios in her
absence to inquire about the default permit
issue. Even if default permit issues to OBWA,
City will have 14 days in which to challenge.
Deadline for City to challenge either: (1)
SFWMD's decision to grant OBWA a consumptive
use permit; or (2) the issuance of a default
permit under the provisions of Section 120.60,
will be 14 days after SFWMD issues the permit.
Bill Reese, John Drago, Mike Morell and John
Cook (if he puts in appearance) should receive
written notice of this from SFWMD. However,
SFWMD may also publish notice in newspaper of
its intent to issue. Mi.d Morell has spoken
with John Cook about adequate lead time needed
to prepare for such a challenge in the event
that the City Council decides to challenge.
This lead time will be necessary because of
the adverse precedent in the 4th DCA regarding
the standing of municij.lities to r..halienge.
If the City decides to challenge tt..?. permit,
research regarding environmental issues will
be needed to successfully plead the challenge.
City will inform Mike Morell as soon as
possible as to whether it desires to challenge
any type of permit issuance to OBWA.
Deadline for OBWA to challenge SFWMD's denial
of permit will be 14 days after district
issues its notice of intent to deny permit.
Deadline for City to intervene on behalf of
sramo in OBWA's challenge to district's denial
will be up to 5 days before the final hearing
begins.
With best personal regards,
MWM:mm
Sincerely,
Az4tv
Michael Wm. Morell
F.S. 1991 F.S. 1991
;orporate
ute all of
lishment
:orporate
iesirable
health,
the pur-
;aid cor-
e corpo-
'ail itself
s lawful
by ordi-
:quiring
isiness
ith any
)erated
)wever,
)all not
lcorpo-
extend
of said
I con -
me.—
owers
shall
)dy of
)g the
pose,
tgage
to be
such
said
1 with
aring
sage
Jnici-
con -
the
ether
ster-
ility,
said
leg -
) an
"1 of
ose
ors,
the
en-
of
DVI-
MUNICIPAL PUBLIC WORKS Ch. 180
sions. All other legislative and administrative functions
and proceedings shall be the same as provided for the
government of the municipality. The city council or other
legislative body, by whatever name known, of the munic-
ipality, may adopt and provide for the enforcement of all
resolutions and ordinances that may be required for the
accomplishment of the purposes of this chapter, and its
decision shall be final in determining to construct the
utility, or any extension thereof as and where proposed,
to promote the public health, safety, and welfare by the
accomplishment of the purposes of this chapter; pro-
vided, that where any mortgage revenue certificates,
debentures, or other evidences of indebtedness shall
come within the purview of s. 12, Art. VII of the State
Constitution, the same shall be issued only after having
been approved by a majority of the votes cast in an elec-
tion in which a majority of the owners of freeholds not
wholly exempt from taxation who are qualified electors
residing in such municipality shall participate, pursuant
to the provisions of ss. 100.201- 100.221, 100.241,
100.261- 100.341, 100.351.
History. —s. 1, ch. 17118, 1935; CGL 1936 Supp. 3100(6); s. 15, ch. 69 -216; s. 64,
ch. 77-175.
180.05 Definition of term "private company. " —A
"private company" shall mean any company or corpora-
tion duly authorized under the laws of the state to con-
struct or operate water work m
sMystes, sewerage sys-
tems, sewage treatment works, garbage collection and
garbage disposal plants.
History. —s. 2, ch. 17118, 1935; CGL 1936 Supp. 3100(7).
180.06 Activities authorized by municipalities and
private companies. —Any municipality or private com-
pany organized for the purposes contained in this chap-
ter, is authorized:
(1) To clean and improve street channels or other
bodies of water for sanitary purposes;
(2) To provide means for the regulation of the flow
of streams for sanitary purposes;
(3) To provide a water supply for domestic, munici-
pal or industrial uses;
(4) To provide for the collection and disposal of sew-
age and other liquid wastes;
(5) To provide for the collection and disposal of gar-
bage;
(6) And incidental to such purposes and to enable
the accomplishment of the same, to construct reser-
voirs, sewerage systems, trunk sewers, intercepting
sewers, pumping stations, wells, siphons, intakes, pipe-
lines, distribution systems, purification works, collection
systems, treatment and disposal works;
(7) To construct airports, hospitals, jails and golf
courses, to maintain, operate and repair the same, and
to construct and operate in addition thereto all machin-
ery and equipment;
(8) To construct, operate and maintain gas plants
and distribution systems for domestic, municipal and
industrial uses; and
(9) To construct such other buildings and facilities
as may be required to properly and economically oper-
ate and maintain said works necessary for the fulfillment
of the purposes of this chapter.
However, a private company or municipality shall not
construct any system, work, project or utility authorized
to be constructed hereunder in the event that a system,
work, project or utility of a similar character is being
actually operated by a municipality or private company
in the municipality or territory immediately adjacent
thereto, unless such municipality or private company
consents to such construction.
History. —s. 3, ch. 17118, 1935; s. 1, ch. 17119, 1935; CGL 1936 Supp 3100(8).
180.07 Public utilities; combination of plants or
systems; pledge of revenues. —
(1) All such reservoirs, sewerage systems, trunk
sewers, intercepting sewers, pumping stations, wells,
intakes, pipelines, distribution systems, purification
works, collecting systems, treatment and disposal
works, airports, hospitals, jails and golf courses, and gas
plants and distribution systems, whether heretofore or
hereafter constructed or operated, are considered a
public utility within the meaning of any constitutional or
statutory provision for the purpose of acquiring, pur-
chasing, owning, operating, constructing, equipping
and maintaining such works.
(2) Whenever any municipality shall decide to avail
itself of the provisions of this chapter for the extension
or improvement of any existing utility plant or system,
any then existing plant or system may be included as a
part of a whole plant or system and any two or more utili-
ties may be included in one project hereunder. The reve-
nues of all or any part of any existing plants or systems
or any plants or systems constructed hereunder may be
pledged to secure moneys advanced for the construc-
tion or improvement of any utility plant or system or any
part thereof or any combination thereof.
History. —s. 4, ch. 17118, 1935; s. 2, ch. 17119, 1935, CGL 1936 Supp. 3100(9).
180.08 Revenue certificates; terms; price and inter-
est; three - fifths vote of governing body required. —
(1) Any municipality which acquires, constructs or
extends any of the public utilities authorized by this
chapter and desires to raise money for such purpose,
may issue mortgage revenue certificates or debentures
therefor without regard to the limitations of municipal
indebtedness as prescribed by any statute now in effect
or hereafter enacted; provided, however, that such mort-
gage revenue certificates or debentures shall not
impose any tax liability upon any real or personal prop-
erty in such municipality nor constitute a debt against
the municipality issuing the same, but shall be a lien only
against or upon the property and revenues of such util-
ity, including a franchise setting forth the terms upon
which, in the event of foreclosure, the purchaser may
operate the same, which said franchise shall in no event
extend for a period longer than 30 years from the date
of the sale of such utility and franchise under foreclosure
proceedings.
(2) Such mortgage revenue certificates or deben-
tures shall be sold for at least 95 percent of par value
and shall bear interest not to exceed 7.5 percent per
annum.
(3) No mortgage revenue certificates or debentures
shall be issued except upon a three - fifths affirmative
vote of the city council, or other legislative body of the
municipalities by whatever name known; such mortgage
1105
904 Fla. 143 SOUTHERN REPORTER, 2d SERIES
bers. - Several other telephone calls of a
similar nature followed while the officers
conversed with a colored boy in the office.
The officers then testified to the effect that,
based upon their knowledge and experience
of the operations of lotteries and from their
observance of the telephone calls, the writ-
ing down of numbers on pads of paper, and
from their observance of the other para-
phernalia on the defendant's desk, they
then concluded that the defendant was vio-
lating the lottery laws. The officers then,
for the first time, identified themselves, ar=
rested the defendant, executed the search
warrant, searched the defendant and office
number 3, and seized certain items which
they identified as lottery paraphernalia
On motion of the defendant, the court
quashed the search warrant because the de-
scription of the premises to be searched was
not substantially set forth, However, the
court denied the motion of the defendant to
suppress the evidence seized on the basis of
a finding that the officers were invited into
the premises by the defendant, where they
observed that a felony was being commit-
ted in their presence; that the arrest was
lawful; and, that as an incident to the ar-
rest, the officers had the power and duty to
search the defendant and to seize anything
found on his possession or in his posses-
sion or control tending to show that he was
guilty of a violation of the law. We'affirm.
These officers were unknown to the de-
fendant, and the defendant was unknown to
them. At the time of their admission to
the premises, they were not identified as
police officers. Thus, they did not gain ac-
cess to the premises under color of their
office or of the law as were the facts in
Dunnavant v. State, Fla.1950, 46 So.2d 871.
They were admitted as private citizens.
Comparison of the manner of their admis-
sion with the manner of admission of po-
lice officers as detailed in Collins v. State,
Fla.App.1962, 143 So.2d 700, points out a
line of demarcation between officers gain-
ing admission to premises without exercis-
ing their power and authority as police of-
ficers, as are the facts in this case, as dis-
tinguished from gaining admission to prem-
ises under color of their office and of the
law, as were the facts in Collins v. State,
supra. The fact that at the time of their
entry they had in their possession a search
warrant, which subsequently proved to be
insufficient, was immaterial. Brown v.
State, Fla.1950, 46 So.2d 479; Turner v.
State, F1a.1954, 74 So.2d 891. The officers
had sufficient cause to place the defendant
under arrest. Fletcher v. State, Fla.1953,
65 So.2d 845. The subsequent search of
the premises was justified as an incident to
the arrest. Bozeman v. State, Fla.App.
1958, 102 So.2d 648.
Affirmed.
ALLEN, Acting C. J., and KANNER, J.,
concur.
w
KEY NUMBER SYSTEM
John W. BELL, George C. Petersen, H.V.
Saxon, Frank C. Adler and J. Herbert
Burke, as the Board of County Commis-
sioners of Broward County, Florida, and
the County of Broward, Florida, a Po-
litical Subdivision, and Joseph Easthope,
for himself and on behalf of all others
similarly situated, Appellants,
v.
ASSOCIATED INDEPENDENTS, INC., a
Florida Corporation, and Continental En-
terprises, Inc., a Delaware Corporation, Ap-
pellees.
' No. 2663.
District Court of Appeal of Klorida.
Second District.
Aug. 17, 1062.
Action by county for a declaratory
judgment concerning its duty to arbitrate
a claim for a rate increase by franchise
holder for collection and disposal of gar-
bage and waste. The Circuit Court,
Browt.
dismis
and o
of Ap:
held t
state
I. Decl
Pu
ment t
law ru
be jud
been
right t
practic
which
other 1
F.S.A.
2. Decl
W
preven
judgmc
87.01, 1
3. Decl;
De
forbid
ing ou
§§ 87.0
4. DecI
CiI
strue a
and di;
purpose
county
of rate
which 1
S.A. §§
5. Decla
Cot
minatioi
bage coi
county
tion of
143
prem-
)f the
State,
their
search
to be
srn v.
ner v.
)fficcrs
endant
a.1953,
rch of
dent to
la.App.
IER, J.,
n, H. V.
Herbert
Commis -
-Ida, and
a, a Po-
Easthope,
II others
INC., a
ental En-
ation, Ap-
3rida.
eclaratory
arbitrate
franchise
al of gar-
lit Court,
BELL v. ASSOCIATED INDEPENDENTS, INC. Fla. 905
Cite as, Fla., 143 So.2d 904
to state a basis for declaratory relief. F.
S.A. §§ 87.01, 87.02, 87.11.
6. Declaratory Judgment (.3I3
Broward County, Richard M. Sauls, J.,
dismissed the complaint, and the county
and others appealed. The District Court
of Appeal, Willson, J. H., Associate Judge,
held that the complaint was sufficient to
state a basis for declaratory relief.
Judgment reversed with directions.
I. Declaratory Judgment € 24
Primary purpose of Declaratory Judg-
ment Act is to relieve litigants of common -
law rule that no declaration of rights may
be judicially adjudged unless a right has
been violated, for the violation of which
right relief may be granted, and to render
practical help in ending controversies
which have not reached the stage where
other legal relief is immediately available.
F.S.A. §§ 87.01, 87.02, 87.11.
2. Declaratory Judgment C =I
Within the sphere of anticipatory and
preventative justice, use of declaratory
judgments should be extended. F.S.A. §§
87.01, 87.02, 87.11.
3. Declaratory Judgment C=.I44
Declaratory Judgment Act does not
forbid its use to determine questions aris-
ing out of an arbitration clause. F.S.A.
§§ 87.01, 87.02, 87.11.
4. Declaratory Judgment 0209
Circuit court had jurisdiction to con-
strue an exclusive franchise for collection
and disposal of garbage and waste for
purpose of determining right or power of
county to enter into arbitration on matter
of rates and to determine any fact upon
which that right or power depended. F.
S.A. §§ 87.01, 87.02, 87.11.
5. Declaratory Judgment ' Judgment C=0319
Complaint by county seeking deter-
mination of sufficiency of petition of gar-
bage company for rate increase to empower
county to proceed to arbitration under sec-
tion of franchise agreement was sufficient
143 So.2d -571/2
In order to actuate jurisdiction under
Declaratory Judgment Act, complaint
should allege that there is a bona fide dis-
pute between the parties and that moving
party has justiciable question as to ex-
istence or non - existence' of some right,
status, immunity, power or privilege, or as
to some fact upon which existence of such
right, status, etc., 'does or may depend,
and that plaintiff is in doubt as to such
right, status, etc., and that there is a bona
fide, actual, present need for the declara-
tion. F.S.A. §§ 87.01, 87.02, 87.11.
7. Declaratory Judgment Cz)327, 365
While granting of declaratory relief
lies within discretion of court and is not
a matter of right, the discretion is not to
be exercised in connection with a notion
to dismiss a complaint which is sufficient
to invoke the court's jurisdiction, but is
to be exercised when the evidence is before
the court. F.S.A. §§ 87.01, 87.02, 87.11.
John U. Lloyd and Joseph Easthope,
Fort Lauderdale, for appellants.
Reasbeck & Fegers, West Hollywood,
for appellee Associated Independents, Inc.
Hugh S. Glickstein of Glickstein, Cren-
shaw, Glickstein & Hulsey, Fort Lauder-
dale, for appellee Continental Enterprises,
Inc.
WILLSON, J. II., Associate Judge.
The County of Broward, acting by and
through its Board of County Commission-
ers, granted Associated Independents, Inc.,
formerly known as Affiliated Services, Inc.,
an exclusive franchise for the collection
and disposal of garbage and waste, within
that part of Broward County not included
within the corporate limits of any city or
town. The performance of the obligations
906 Fla. 143 SOUTHERN REPORTER, 2d SERIES
of Associated Independents, Inc., under
this franchise was unconditionally guaran-
teed by Continental Enterprises, Inc.
Paragraph 11 of the franchise agreement
reads as follows
"11. It is recognized that the rates
hereinabove provided for are based
upon cost of operation upon the, ef-
fective date of this agreement. Affiliat-
ed shall not increase the fixed rates
hereinabove provided for without the
approval of the County and no such
increase shall be sought except when
made necessary by, increased cost of
operations nor will an application for
increase in rates be made more often
than once in any calendar year com-
mencing October 1st during the term
of this Agreement. In the event a
change in said fixed rates increasing
the same is desired by said Affiliated, a
petition shall be filed with the County,
accompanied by a current comparative
cost of operations statement prepared
by a Public Accountant certified in the
State of Florida, and such other perti-
nent information as may be required by
the Board to make a proper determina-
tion of the cost of operation, and, ex-
cept as hereinafter. provided, no such
change shall be, made without the ,ap-
proval of said petition therefor filed
with the Board of County Commis-
sioners of Broward County, Florida
requiring such increase. The Board of
County Commissioners shall approve
or deny any such petition, in whole or
in part, within thirty -one (31) calendar
days after the date it has been filed in
the office of the Clerk of said Board.
However, in the absence of any ruling
thereon by said Board within said
thirty-one (31) day period, said in-
crease shall become effective on the
thirty- second (32nd) day after . said
filing of said written application there-
for
unless Affiliated shall agree to an
extension of said thirty -one (31) day
period, time being of the essence. In
the event the said Board shall deny the
petition, in whole or in part, and Af-
filiated shall feel aggrieved, then the
matter shall be submitted to arbitra-
tion in the following manner. An
impartial body consisting of three (3)
persons shall decide the issue. One of
said persons shall be selected by said
Board, one by Affiliated, and one not
residing or doing business in Broward
County, Florida, shall be jointly select-
ed by the Board and Affiliated. In the
event Affiliated seeks such arbitration
.,and gives notice in writing to the Board
of its selection of a person to serve as
an arbitrator and the Board fails or
refuses within ten (10) calendar days
after receipt of said written notice to
name an arbitrator or in the event of
the inability of the parties hereto to
agree on the third member of said body,
then and in either of such events, upon
the application of either party hereto,
either or both such members of said
body shall be designated by the senior
judge of the Circuit Court in and for
Broward County, Florida,, one of whom
shall be a resident of Florida but not a
resident of Broward County, Florida.
"The successor of any such mem-
ber of such body who is unable to serve
because of ' death or disqualification
shall be named by the party having
made said appointment.
"The decision of the majority of
said body shall be final and conclu-
sive and shall be effective when report-
•; cd to the Board of County Commis-
' sioners at an adjourned meeting, pro -,
vided that if the said body fails to
reach a decision within thirty (30) days
after their appointment, said award
shall be deemed to have become effec-
tive at the expiration of said thirty (30)
days and, provided further, that in the
event said award is subsequently mod -
_ ified or decreased in whole or in part
Affiliated shall forthwith make such re-
funds or adjustments as may be re-
quired to conform to said order, retro-
A f-
the
itra-
An
(3)
e of
said
not
Yard
lect-
i the
ition
oard
re as
Is or
days
ce to
nt of
to to
body,
upon
ereto,
said
.enior
d for
,vhom
not a
orida.
mem-
serve
cation
laving
ity of
onclu-
-eport-
nnmis-
;, pro-
ills to
I) days
award '
effec-
ty (30)
in the
y mod -
in part
uch re-
be re-
, retro-
BELL v ASSOCIATED INDEPENDENTS, IN '0. Fla. 907
Cite as, Fla., 143 So.2d 904
active to the date said order was deem-
ed to have become effective.
"Said arbitration shall be subject to
all provisions of the 'Florida Arbitra-
tion Code' not inconsistent with the
methods or procedures hereinabove set
out."
In pursuance of the provisions of this par-
agraph Associated Independents, Inc. filed
a petition for a rate increase. A supple-
ment to the petition was filed, and the pe-
tition, as supplemented, was denied by the
County.
When the rate increase was denied, As-
sociated Independents, Inc., invoked the
arbitration provisions of paragraph 11 of
the franchise agreement. The County took
the initial steps toward arbitration, but
then rescinded its action, and instructed
its attorney to file a suit in the Circuit
Court to determine whether . or not the pe-
tition for rate increase was sufficient to
justify or require it to proceed to arbitra-
tion.
The attorney for the County filed an
action for declaratory decree. The com-
plaint named John W. Bell, George C.
Petersen, H. V. Saxon, Frank C. Adler
and J. Herbert Burke, as the Board of
County Commissioners of Broward Coun-
ty, Florida ; the County of Broward, Flor-
ida, a Political Subdivision ; and Joseph
Easthope, for himself and on behalf of all
others similarly situated, as plaintiffs, and
Associated Independents, Inc., and Con-
tinental Enterprises, Inc., as defendants.
The defendants' motion to dismiss this
complaint was granted, and an amended
complaint was granted. A second amend-
ed complaint was then filed and dismissed,
on motion of the defendants, without leave
to amend. The appeal is from this order
of dismissal.
Joseph Easthope was not named as a
party in the second amended complaint.
It is conceded that he is not a proper party
to this appeal. We therefore dismiss his
appeal on our own motion.
The second amended complaint raises no
question as to the power of the County to
submit the fixing of rates to arbitration,
its purpose, as we construe it, being to se-
cure a determination of the 'sufficiency of
the petition for rate increase to empower
the County to proceed to arbitration un-
der paragraph 11 of the franchise agree-
ment. The question we must answer is
whether the lower Court should have made
this determination.
The statutory basis for the action under
review is found in Sections 87.01, 87.02
and 87.11, Fla.St., F.S.A. The pertinent
portions of these sections read as follows:
"87.01 The circuit courts may ren-
der declaratory decrees, judgments or
orders as to the existence, or nonexist-
ence:
"(1) Of any immunity, power, priv-
ilege or right: or
"(2) Of any fact upon which the ex-
istence or nonexistence of such im-
munity, power, privilege or right does
or may depend * * *."
"87.02 Any person * * * whose
rights, status, or other equitable or le-
gal relations are affected by *
any franchise * * * may have de-
. termined any question of construction
or validity arising under such * *
franchise * * * and obtain a dec-
laration of rights, status, or other le-
gal or equitable relations thereunder."
"87.11 This chapter is declared to
be substantive and remedial; its pur-
pose is to afford relief from insecurity
and uncertainty with respect to rights,
status and other equitable or legal re-
lations; and is to be liberally admin-
istered and construed."
51 21_ The primary nurpose of tfle
,declaratory judgment act, is to relieve lit
gants of the common law rule that no
declaration of rights may be judicially a4-
judged unless a right has been violated.,
for the violation of which rights relief
908 Fla.
,.143 SOUTHERN REPORTER, 2d SERIES.._
may be ¢ranted and render practical help
in ending controversies which have not,
reached the stage where other legal re*
lief is immediately available; Watson v.
Claughton, 160 Fla. 217, 34 So.2d 243.
Within the sphere of anticipatory and pre;
ventative justice the use of declaratory
iudzments should be extended their scope
kt wirlr and liberal and their boundarie,�
elastic. Sheldon v. Powell, 99 Fla. 782, 128
So. 258. .,
[3] There is nothing in the declaratory
judgment act which forbids its use to de-
termine' questions arising out of an arbi-
tration clause. Devenco, Inc: v. Emerson
Radio & Phonograph Corp., 12, Misc.2d
949, 174 N,Y.S.2d 132, and it has been
frequently used in this connection, E. g.,
it has been held that an action for declara-
tory judgment is available to secure a de-
termination as td'whether'a matter in dis-
pute comes within the scope .matter
arbitra-
tion agreement, Lehigh Coal. .& Naviga-
tion Co. v. Central R. of N. J., D.C., 33 F.
Stipp. 362; Texoma Natural Gas Co. v.
Oil Workers I. U. etc., D.C., 58 F.Supp.
132, 5 Cir., 146 F.2d 62; Devenco, Inc.
v. Emerson Radio • & Phonograph Corp.,
supra; to determine the extent of the ar-
bitrators' powers,' McKay v. Corporate
Properties, Inc., 276 App.Div. 351, 94 N.
Y.S.2d 599; to determine the propriety of
the method used by arbitrators in fixing
valuation, Ruth `v.'' S. Z. B. Corporation,
2 Misc.2d 631, 153 N.Y.S.2d 163; to de-
termine the validity of an award made by
arbitrators, United Fuel Gas Co. T. Colum-
bian Fuel Corporation, 4 Cir., 165 F.2d
746; and to determine whether a particu-
lar electric generating plant, and transmis-
sion line, were a part of the facilities which
a municipality had an option to purchase
under a franchise agreement, City of Pa-
ducah v. Kentucky Utilities Co., Ky., 264
S.W.2d 848. Although none of these cases
are exactly in 'point, they illustrate the
broad scope of declaratory actions in de-
termining powers or rights under arbitra-
tion agreements.
[4, 5] Under the plain language of the
statute, the lower Court has jurisdiction
to construe the franchise agreement for
the purpose of determining the power or
right of the County to enter into arbitra-
tion on the matter of rates, and to deter-
mine any fact upon which that right or
power defended. The sufficiency of the pe-
tition for rate increase is patently a fact
upon which depended the County's right
or power to arbitrate.
[6] In order to actuate jurisdiction un-
der the declaratory judgment act the com-
plaint should allege that there is a bona
fide dispute between the parties and that
the tnoving party has a justiciable ques-
tion'as' to the existence or non - existence
of some right; status, immunity, power or
privilege, Local No. 234, etc., v. Henley
&'Beckwith, Inc., Fla., 66 So.2d 818; Bry-
ant v.' Gray, Fla., 70 So.2d 581; Colby v.
Colby;' Fla.App., 120 So.2d 797, or as to
some fact upon which the existence of
such right, status, immunity, power or
privilege does or may defend, Bartholf v.
Bartholf, Fla.App., 108 So.2d 905; that
plaintiff is in doubt as to the right, status,
immunity, power or privilege, Ready v.
Safeway Rock Co., 157 Fla. 27, 24 So.2d
$08, Colby v. Colby, supra; and that there
is a bona fide, actual, present need for the
declaration, May v. Holley, Fla., 59 So.2d
636. Although the second amended com-
plaint is not a model of pleading, it meets
these requirements.
[7] While the granting of declaratory
relief lies within the discretion of the
Court, and is not a matter of right, North
Shore Bank v. Town of Surfside, Fla., 72
So.2d 659, the discretion is not to be ex-
ercised in connection with a motion to
dismiss a complaint which is sufficient to
invoke the Court's jurisdiction, Morecroft
v. Taylor, 225 App.Div. 562, 234 N.Y.S.
2; Price v. Rowell, 121 Vt. 393, 159 A.
2d 622 (Vt.) ; Wooldridge Mfg. Co. v. R.
G. La Tourneau, Inc.; D.C., 79 F.Supp.
908, but is to be exercised when the evi-
deg
cla
ve
to
an
m
m
cc
1
f the
ction
for
:r or
ara-
eter -
t or
pe-
fact
-ight
un-
:om-
bona
that
nes-
ence
r or
nlcy
3 ry-
y v.
s to
of
or
f v.
that
.tus,
v.
3.2d
ere
the
).2d
Dm-
eets
ory
the
)rth
72
ex-
to
to
.o ft
S.
A.
R.
pp.
:vi-
McCULLERS v. STATE
Cite as, Fla., 143 So.2d 909
dence is before the Court, 26 C.J.S. De-
claratory Judgments § 11, p. 73.
BtM,
The judgment of the lower Colt,
versed with directions to deny thelmoti'n
to dismiss the second amended complaint,
and to take, such further proceedings as
may be necessary to decide this case on its
merits,
2. Criminal Law «1159(1)
4, s
tthying court will not substitute its
t for that of jury on questions of
ALLEN, Acting C. J., and SMITH,
concur.
Lois Mary McCULLERS, Appellant,
v.
STATE of Florida, Appellee.
No. D -123.
District Court of Appeal of Florida.
First District.
July 3, 1962.
Rehearing Denied Sept. 20, 1962.
Homicide prosecution. The Circuit
Court, Clay County, Frank H. Elmore, J.,
rendered judgment of conviction of man-
slaughter, and defendant appealed. The
District Court of Appeal, held that admis-
sion of testimony by state's expert as to
defendant's sanity at time of alleged crime
was error, where testimony was based in
substantial part upon extrajudicial and un-
disclosed statements made to expert by
third persons concerning defendant's ac-
tions shortly prior to and immediately fol-
lowing event.
Reversed and remanded for new trial;
petition for rehearing denied.
1. Homicide 0250
Evidence sustained conviction for man-
slaughter.
...
Ctt r,
3, Criminal Law 01174(1)
That arrangements were made, without
defendant's objection, for sheriff and his
deputies to attend to personal needs of
sequestered jurors was not prejudicial error
as tending to place sheriff and his office in
complimentary position.
Fla. 909
4. Jury € 83(I)
Record disclosed that juror had been
qualified to serve in homicide prosecution.
5. Jury 097(4), 103(6)
.Test of qualification of juror in crim-
inal case is not whether he will yield his
opinion, bias or prejudice to evidence, but
whether he is able to put any such opinion,
bias or prejudice completely out of his mind
and base his verdict only upon evidence.
6. Criminal Law ■518(1)
Voluntary confession not given as in-
cident to any legal proceeding was admis-
sible although coroner and committing mag-
istrate, who was present, did not warn
defendant of her constitutional rights. F.
S.A. §§ 901.23, 902.01.
7. Criminal Law €1036(1)
Where no objection is interposed to
testimony, it is regarded as having been
received by consent and its admissibility
will not be considered on appeal.
8. Criminal Law 0695(2)
Failure to interpose specific objections
to questions posed to state's expert was
not implied consent to admission of his
testimony, where objection directed to ab-
sence of proper predicate was made before
opinion was elicited.
9. Criminal Law 0486
Admission of testimony by state's ex-
pert as to defendant's sanity at time of al-
ice
my
int
at-
dty
:ir-
ver
of
itle
om
of
ror
not
:ute
>ro-
it
)f
:d
11
-e
e-
d.
:n
e-
is
a-
a-
tit
ce
nt
n-
or
st-
fl-
x
.n-
or
ty,
or
on
:nt
ng
lso
er-
MAY v. HOLLEY
Moos 69 So.2d 636
cive, subsequent or supplemental relief
in the same action." Laws 1943, c.
21820, Sec. 1.
87.02 Power to Construe, etc.
"Any person claiming to be interested
or who may be in doubt as to his rights
under a deed, will, contract or other ar-
ticle, memorandum or instrument in
writing or whose rights, status or other
equitable or legal relations are affected
by a statute, or any regulation made un-
der statutory authority, or by municipal
f
ordinance, contract, deed, will, ran -
chise, or other article, memorandum or
instrument in writing may have deter-
mined any question of construction or
validity arising under such statute, reg-
ulation, municipal ordinance, contract,
deed, will, franchise, or other article,
memorandum or instrument in writing,
or any part thereof, and obtain a decla-
ration of rights, status or other equita-
ble or legal relations thereunder."
Laws 1943, c. 21820, Sec. 2.
[8] Before any proceeding for declara-
tory relief should be entertained •t shou11
be clearly made to appear that there is ,,
,Pona fide actual present practical need fo=
the declaration; that the declaration shonitj
�jeal with a present ascertained or ascei,
Yainable state of facts nr present.rontro-
yersy as to a state of facts• that some i -
coniplaininv party is dependent upon the
facts or the law applicable to the fact;
that there is some person or persons who
bave or reasonahly may have an actin,
_present adverse anri antagonistic interest
in the subject matter either in fart or law •
that the antaonistic and adverse interest
are_alLbe.re the court by proper process or
class representation and that the relief
sought is not merely . the giving. of legal
questions propounded from curiosity.
These elements are necessary in order to
maintain the status of the proceeding as be-
ing judicial in nature and therefore within
the constitutional powers of the courts.
[7] It will be observed that the statute With these requirements niet there is
is phrased in very broad language. It au- almost no limit to the number and type of
thorizes a declaration of rights upon a cases that may be heard under this statute.
bill of complaint (implying a chancery Of course, the court should never lose
case) a declaration (implying an action at sight of the right to jury trials in those
law) or a petition or other appropriate cases not strictly equitable in nature.
pleading. The last two expressions imply It will also be noted that the statute pro -
that an action for declaration of rights vides that the Circuit Courts "may" render
may be made in a special statutory plead- declaratory decrees. Thus the entertain-
ing without the pleader having to determine ment of the proceeding and the granting or
whether legal or equitable principles should withholding of relief becomes a matter for
apply, or, perhaps in instances where both the exercise of a sound judicial discretion
might be involved. in each case. Abuses under the statute may
The statute authorizes a declaration of be avoided by the dismissal of those cases
"any immunity, power, privilege or right" which do not come clearly within the lirni-
or "any fact upon which the existence or tation upon the judicial power above stated.
nonexistence of such immunity, power, priv- The fact that the declaration must be
ilege or right does or may depend." The against the interest of the complaining par -
statute also provides that the declaration ty, and equity may require that costs be
may be either affirmative or negative. It charged against him does not destroy the
is difficult to find broader words or express right to the declaration. If the standards
a broader scope of jurisdiction. Unless we stated above are met the plaintiff is enti-
are to deny the power of the Legislature tled to have the existence or nonexistence
to enact the statute we must give full of his rights adjudicated.
force to its language, subject only to the
constitutional limitations upon the func- [9] The case as stated in the complaint
tions of the judicial department of govern- before us meets every requirement of the
ment. statute and the limitations upon the judicial
640 Fla.
powers which
the complaint
missed with pr
Reversed.
SEBRING,
MATHEWS,
59 SOUTHERN REPORTER, 2c1 SERIES
to full faith and credit in courts of Flo
in view of fact that husband, by filing
tion to vacate, thereby submitted to';
York court question of validity of
decree and order of New York court
ing such motion was conclusive on
question. Civil Practice Act N.Y. § 11 1:
3. Judgment €'818(3), 820
Rule that Supreme Court is not
quired to recognize judgment of an•'
state where judgment was rendered .
court without jurisdiction, or where j
merit was obtained by extrinsic frau'►
subject to limitation that if court of
which rendered judgment has ex
litigated jurisdictional questions or
of fraud, that determination becomes
judicata on those points and is itself,
tected by full faith and credit clause,
Constitution of United States, and juts
tional and fraud questions cannot be,
litigated a second time in another state.
S.C.A.Const. art. 4, § 1.
we have enumerated and
should not have been dis-
ejudice.
C. J., and CIIAPMAN and
JJ., concur.
HAAS v. HAAS.
Supreme Court of Florida,
Special Division B.
June 17, 1952.
Rehearing Denied July 17, 1952.
Proceeding by Eva D. Haas against Simon
Haas for enforcement of a judgment for
past -due alimony entered against respond-
ent by a New York Court.
A. Smith, Circuit
Court, Orange County, J.,
denied petitioner's motion to strike respond-
ent's answer as to certain defenses alleged
therein and petitioner brought held that
The Supreme Court, Roberts, J.,
equitable defenses interposed by respondent
were entitled to consideration by equity
in determining extent n oe which the
court equitably should go
of foreign judgment.
Writ granted in part and denied in part.
1. Divorce ,331
Where wife who was awarded alimony
decree in New York in 1948, subsequently
obtained judgment in New York in 1950 for
past -due alimony, suit instituted by wife
in Florida for enforcement of 1950 judg-
ment could not be defeated on theory that
1948 decree was subject to modification
by New York court and thus was not a
final judgment.
4. Divorce C=)331, 332
Equity courts of state are open to
resident wives for enforcement by equi
processes of final decrees for alimony"
wives and support money for chill
awarded by courts of other states,
equitable relief is also extended to a`
band, who through no fault of his
finds himself unable to meet alimony,
support money demands theretofore pl
upon him by court of another state. v1'
2. Divorce 0328
Where husband filed motion in New
York to vacate and set aside 1948 New York
decree awarding alimony to wife, suit by
wife to enforce a 1950 New York judg-
ment for past -due alimony could not be de-
fended on theory that 1948 decree was void
for lack of notice, to that it was not entitled
5. Divorce € 33I
A nonresident wife who seeks to
force in courts of state a final alimon
cree or money judgment based the
entered by courts in another state may,
ceed in a court of law by a commo'
action to secure money judgment fey'
linquent alimony, or wife may ask,,,
court to exert its equitable remedies '
enforcement of such decree, and if
chooses latter forum, she must be pre'
to meet any equitable defenses reco:
in state in an equitable action to en
a domestic decree for alimony.
6. Divorce C=331
In wife's action to enforce New
judgment for past -due alimony, equi
defenses interposed by husband wer,
tied to c
eterminin
uitably
judgr
171 —b.
Roe H.
ells, Or
H. N. I
do, for
ROBEI
We het
entered ii
tkner ag<
Court in
in Chancf
to, invoke
Court for
or past -
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estches
rovision
ork Cis
Motion t
was deni
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hich w<
The pc
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of New
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Suit in tl
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as t l
��, 59
i
ti
SARAH M. BLEAKLCY
L. THOMAS GISLIN
MARK T. MUSTIAN
ROBERT L.NAOORS
GEORGE H. NICKERSON, .IR.
GREGORY T. STEWART
JOHN R. STOKES
ART WICOINGCR •••••
-�
•
visit
NABORS, GIBLIN & NICKERSON, P. A.
ATTORNEYS AT LAW
BARNETT BANK BUILDING, SUITE e00
316 SOUTH CALHOUN STREET
TALLAHASSEE, FLORIDA 32301
TELEPHONE (904) 224 -4070
TELECOPY (904) 224 -4073
January 5, 1990
Via Federal Express
M. Dale Milita
Administrative Assistant
Board of County Commissioners
304 N.W. 2nd Street, Room 106
Okeechobee, Florida 34972
Dear Mr. Milita:
CIS i/ O.> 4,4,
reS��'h
LINCOLN POINTE, SUITE 1060
2502 ROCKY POINT DRIVE
TAMPA, FLORIDA 33607
(893) 261 -2222
TELECOPY (613) 281 -0129
As you requested, enclosed is our legal analysis of the
County's authority to enact a franchise ordinance governing
electric, telephone, and other utilities operating within the
County. Because of the length of the analysis, I have divided it
into the following topics: (1) Nature of a Franchise Ordinance;
(2) Non - Charter County Home Rule Authority; (3) Non - Charter County
Authority to Enact Franchise Ordinances; and (4) Development and
Implementation of a Franchise Ordinance.
In summary, the analysis concludes:
1. A county's relationship with a utility may be governed
by a franchise ordinance: (a) authorizing the utility to use the
,county rights -of -way in providing a utility service in accordance
with county regulation; and (b) imposing a fee for the right -of-
way use and to pay the cost of regulation.
2. A non- charter county has the constitutional and statutory
authority to enact a franchise ordinance because no law precludes
such county legislation.
3. Developing and implementing a franchise ordinance
requires: (a) consideration of the functions of the ordinance; (b)
fundamental policy decisions concerning competing utilities and
utility customers; and (c) resolution of the issue of county
authority to enact a franchise ordinance if the utility challenges
it.
000561L
. •••• M1111. ✓•'
M. Dale Milita
January 5, 1990
Page 2
We hope this analysis proves useful to the County. If you
need fyxjher information, please let us know.
RLN /slb
Enclosure
Very truly yours,
Robert L. abors
Sarah M. Bleakley
2
000562
ANALYSIS; UTILITY FRANCHISES OF NON- CHARTER COUNTIES
I. NATURE OF A FRANCE/SE ORDINANCE
Franchise ordinances govern the relationship between a county
and a utility. A utility which provides electrical, natural gas,
water,'''sewer, cable television, solid waste or other
utility
services may be the subject of a franchise ordinance. A franchise
ordinance confers a special privilege, such as that of providing
a utility service, which is not available as a common right.'
*- d
WComnanv_ 52 So. 718
(Fla. 1910).
The franchise ordinance may contain provisions on a variety of
subjects, including: the county's relinquishment of its authority
to provide the franchised service; the exclusive or non - exclusive
nature of the franchise; the specific privileges conferred on the
utility, such as use of rights -of -way; the degree of supervision
to be provided by the county; the length of the term of the
franchise; the area of service granted by the franchise, which may
include part or all of the unincorporated area and may include the
incorporated area assuming a relinquishment of municipal authority
by agreement or law; an indemnity clause protecting the county from
acts of the utility in the exercise of the franchise; and a
provision addressing transfer of the franchise.
A franchise ordinance may provide for a franchise fee.
Franchise fees have been described by the Florida Supreme Court as,
1
Whether the franchise ordinance itself confers the
privilege to provide the utility service depends on whether the
right to serve is the subject of a regulatory law.
1
Anntn A
rent payments and consideration for specific property rights. City
of Pensacola v. Southern Dell Telephone Co., 37 So. 822 (Fla.
1905); City of Plant City v. Mayo, 337 So.2d 966 (Fla. 1976).
Commonly, for example, electrical power franchise agreements
require- the electric company to pay an annual fee equal to six
percent of gross receipts with credit given for ad valorem taxes
and other fees paid to the county. A franchise ordinance may base
the fee on the amount of utility service used by the customers in
a given time period and cap the fee allocated to each customer in
a class. For example, the ordinance may require the utility to pay
a percentage of revenues collected from sales of up to, but not
more than, a set amount of electric power per month to each
residential, commercial and industrial customer. Regardless of the
method employed, the fees are collected by the utility and may be
added directly to the customers' monthly bill and identified as the
county's franchise fee.2 The fees may be collected annually or at
a shorter interval. Customarily, the franchise agreement requires
that the utility pay the fee to the county in estimated monthly
installments with a reconciliation at the end of each year. The
amount of revenue generated by a franchise fee depends on the basis
and the rate of the fee. The franchise agreement may also provide
for periodic audits of the utility to ensure proper collection of
the fee.
2 Often the fee is identified on the bill as a "franchise
tax" which is a technical misnomer. See discussion of distinction
between a franchise fee and a tax in Section IV.F on page 20.
2
000564
1
Presently, several non - charter counties throughout the State
are collecting franchise fees or are attempts g to impose franchise
fees on electric utilities operating within their unincorporated
areas. Among these are Brevard, Charlotte, Escambia, Santa Rosa
.r .
and Leon Counties. Brevard County and Charlotte County have
special acts authorizing utility franchises which were adopted
during the late 1970's. Leon, Santa Rosa and Escambia Counties are
presently negotiating franchise fees or collecting franchise fees
with the consent of the electric utility operating within the
County.
II. NON- CHARTER COUNTY HOME RULE AUTHORITY
A. Constitutional and Statutory Provisions.
The Florida Constitution authorizes the Legislature to grant
the power of self - government to non - charter counties by general or
special law and authorizes non - charter counties to enact ordinances
which are not inconsistent with general or special law.
Section 1(f), Article VIII, Florida Constitution, provides:
(f) NON - CHARTER GOVERNMENT. Counties not
operating under county charters shall have
such power of self - government as is provided
by general or special law. The board of
county commissioners of a county not operating
under a charter may enact, in a manner
prescribed-by general law, county ordinances
not inconsistent with general or special law,
but an ordinance in conflict with a municipal
ordinance shall not be effective within the
municipality to the extent of such conflict.
While a charter county derives power from its charter and the
Florida Constitution, a non - charter county has "such power of self-
3
000565
i
*re
government at, is provided by general or special law." There could
not be a broader grant of the power of self- government to non -
charter counties than that granted in Section 125.01, Florida
Statutes. Section 125.01(1) provides:
(1) The legislative and governing body of a
county shall have the power to carry on county
governmentTo the extent not inconsistent
with general or special law, this power
includes, but is not restricted to, the power
to•
Following this provision is an enumeration of specific powers. By
the terms of the statute, such enumeration is not all inclusive.
Instead, Section 125.01(1) specifically provides that a county's
power includes, but is not limited to, those listed. Among the
enumerated powers are the following relevant to the power to adopt
a franchise ordinance:
(h) Establish, coordinate, and enforce zoning
and such business regulations as are necessary
for the protection of the public.
* * *
•
(k) Provide and regulate waste and sewage
collection and disposal, water supply, and
conservation programs.
* * *
(m) Provide and regulate arterial, toll, and
other roads, bridges, tunnels, and related
facilities;.eliminate grade crossings; provide
and regulate parking facilities; and develop
and enforce plans for the control of traffic
and parking.
* * *
(t) Adopt ordinances and resolutions
necessary for the exercise of its powers . .
4
000566
* * *
(w) Perform any other acts not inconsistent
with law, which acts are in the common
interest of the people of the county, and
exercise all powers and privileges not
specifically prohibited by law.
Section 125.01(3) reiterates that the grant of power is not
restricted to those enumerated and that the Legislature intended
Section 125.01 to implement all the powers of self government
authorized by the Constitution. Section 125.01(3) provides:
(3)(a) The enumeration of powers herein
shall not be deemed exclusive or restrictive,
but shall be deemed to incorporate all implied
powers necessary or incident to carrying out
such powers enumerated, including,
specifically, authority to employ personnel,
expend funds, enter into contractual
obligations, and purchase or lease and sell or
exchange real or personal property.
(b) The provisions of this section shall be
liberally construed in order to effectively
carry out the purpose of this section and to
secure for the counties the broad exercise of
home rule powers authorized by the State
Constitution.
B. Supreme Court Opinions.
The authority of a non - charter county to proceed under its
home rule power of self - government is well established. The
supreme Court has explored the scope of home rule authority in
three leading opinions: State of Florida v. Orange County, 281
So.2d 310 (Fla. 1973); Speer v. Olson, 367 So.2d 207 (Fla. 1979) ;•
and Taylor v. Lee County, 498 So.2d 424 (Fla. 1986). In all three
opinions, the Supreme Court recognized the expansive home rule
powers conferred by Section 1(f), Article VIII, and Section 125.01
5
000567
i
and concluded that non - charter counties need no specific statutory
authority to enact ordinances. Non - charter counties have the home
rule authority to enact ordinances for any county purpose, the
Supreme Court has held, as long as the ordinances are not
inconsistent with general or special law.
In Orange County, the Supreme Court considered the home rule
power of the county to issue revenue bonds backed by its share of
parimutuel funds collected by the State. There was no general or
special law specifically permitting the pledge of parimutuel funds
and prior to the enactment of Section 125.01, Florida Statutes, it
had been common practice for counties to seek special act
authorization for such borrowing. Included in the Section
125.01(1) list of county enumerated powers was the authority to
issue bonds, revenue certificates and other obligations of
indebtedness provided by Section 125.01(1)(r).
The Supreme Court noted that:
There is little need for Section 125.01(1)(r)
if a county still has to go to the Legislature
to get special enabling legislation each time
it wishes to issue bonds. (at page 311)
The Court further noted at page 312:
Instead of going to the Legislature to get a
special bill passed authorizing such building
fund revenue bonds, the Orange County
Commissioners under the authority of the 1968
Constitution and enabling statutes now may
pass an ordinance for such purpose, as they
did in this case, because there is nothing
inconsistent thereto in general or special
law. . . . The object of Article VIII of the
1968 Constitution was to do away with the
local bill evil to this extent.
6
000563
'4w
In addressing whether Orange County had the authority to issue the
bonds in question under Section 125.01, Florida Statutes, the Court
stated:
•
Since Section 125.01(1)(r)
• • •
delegated to Orange County the specific power
to issue bonds and revenue certificates, it
had the power to adopt its implementing
eing
ordinance in this instance. (at page
The unquestioned object of Section 1(f),
Article VIII, is to authorize a 'board of
county commissioners of a county o aperatinr in uunder a charter [to] enact,
prescribed by general luoryspecialnlaw,
not inconsistent with general
• • • ' (at page 312)
In Speer v. Olson, the Supreme Court reviewed a Pasco.,County
ordinance which created a municipal service taxing unit and sought
to issue general obligation bonds solely under the authority
of
Section 125.01. There was no general or special law specifically
authorizing or restricting the county's authority to issue the
bonds. The Surireme Court held that no specific authority by
general or special law was needed because the county could rely on
its home rule authority provided in Section 125.01. In recognizing
a non - charter county's authority to proceed under Section 125.01,
the Court stated at page 211:
The first sentence of Section is 25.01(1),
Florida Statutes, (1975), g power to
governing 'body of a county the full p
carry on county government. Unless the
Legislature has pre - empted a particular
subject relating to county government by
either general or special law, the county
governing body, by reason of this sentence,
has full a rule acT�te through the statutes
of home r power.
7
000569
cr+J t V
general or special, which either specifically
authorizes or restricts Pasco County with
respect to the issuance of general obligation
bonds to acquire sewage and water systems and
to pledge for their payment the net revenues
to be derived from the operation of such
facilities and ad valorem taxes levied within
the area of the Unit. The first sentence of
Section 125.01(1), Florida Statutes (1975),
therefore, empowers the county board to
proceed under its home rule power to
accomplish this purpose.
In Taylor v. Lee County, 498 So.2d 424 (Fla. 1986), the
Supreme Court addressed two issues on the scope of non - charter
county authority to enact ordinances pursuant to its home rule
authority. The first was whether the county's power to provide and
regulate included the power to charge a fee. The county had
adopted an ordinance imposing a toll on an existing bridge to
finance a new bridge. No statute expressly authorized the county
to impose a toll, but Section 125.01(m) authorized counties to
provide and regulate toll roads. The Supreme Court noted that the
county's home rule authority provided in "Subsection 125.01(3)(a)
incorporates 'all implied powers necessary or incident to carrying
out such' enumerated powers." At page 425. Concluding that the
power to set tolls is inherent in the power to provide and regulate
toll roads, the Court approved the ordinance.
The second home rule issue raised in Lee County was a non -
charter county's authority to adopt an ordinance under its Section
125.01 home rule, power instead of adopting it under authority
provided in another chapter. The county sought to issue bonds to
finance the new bridge pursuant to its home rule authority.
8
000570
Plaintiff Taylor argued that since Chapter 159 specifically
authorized the county to issue bonds, the county ordinance must
rely on and conform to Chapter 159. The Court noted that Chapter
159 by its express terms provided supplemental and additional
authority to that conferred by other laws. The Court said that
Chapter 125 provided the county ample authority to issue the bonds
and held that in areas in which a non - charter county has the
authority to act, it may choose between adopting an ordinance
pursuant to its home rule power or adopting it pursuant to another
P c.,opr V . O so ,
statutory authority. See the discussion in .-
beginning on page 212, for a similar holding.
As these three cases illustrate, the quantum of home rule
ower possessed by non - charter counties is expansive and complete
P owers
within the parameters of the Florida Constitution.
The p
A non - charter
enumerated in Section 125.01 are not exhaustive•
county's authority includes those implied in or incidental 0 non-charter
to
carrying out the enumerated power. Furthermore, a non - charter
county may rely on its home rule authority in enacting
an ordinance
instead of another statutory authority if it so chooses. In
determining the home rule power of a county to act for a county
purpose, the search is no longer for specific legislative
authorization. The search is for a general or special law that is
inconsistent with the subject matter of the proposed, ordinance.
Absent an inconsistent law, a county has the complete power to
legislate for any county purpose.
9
000571
C. Court Opinions Applying the Definition of "Inconsistent"
In Orange County, the Supreme Court defined inconsistent as
contradictory in the sense of legislative provisions which cannot
coexist. The courts have applied this definition to numerous
statutes'and ordinances, distinguishing between statutes mandating
county action, statutes authorizing county action, statutes
granting rights and statutes regulating activity.
Applying the definition to a statute mandating certain county
action, the Supreme Court has determined that an ordinance
deviating from the statute was inconsistent with the statute. For
example, in Board of County Commissioners of Dade County v. Wilson,
386 So.2d 556 (Fla. 1980) the Supreme Court considered an ordinance
requiring ad valorem millage to be set by referendum. The Court
noted that Section 200.091, Florida Statutes, stated that the Board
of County Commissioners "shall" set the millage. The statute was
mandatory and the Court ruled that the ordinance allowing the
millage to be set by the electorate was inconsistent with the
statute.
As opposed to statutes mandating county action, the Supreme
Court has held that statutes authorizing county action do not
conflict with ordinances on the same subject. In Orange County,
the Court faced an ordinance which pledged parimutuel revenues
without voter approval. The parimutuel statute was silent on the
power of the county to issue bonds or incur debt with parimutuel
funds. Another statute required a referendum on bonds payable from
ad valorem taxes but was silent on requiring voter approval for
•
10
000572
other bonds. The bond ordinance was held not to be inconsistent
with either statute.
In comparing an ordinance with a statute granting rights, the
courts have determined that an ordinance is inconsistent with the
statute if the ordinance curtails the statutory right. For
example, in Scavella v. Fernandez, 371 So.2d 535 (Fla. 3d DCA 1979)
the court reviewed a Dade County ordinance which provided a shorter
time period for filing suit against the county than provided by
statute. The court held that the ordinance conflicted with the
statute and was therefore invalid. The court said that "What the
legislature hath granted, the [county] commission may not take
away - -even in part." Scavella at page 537.
In determining whether ordinances conflict with regulatory
statutes, the courts have ruled that both may regulate the same
activity as long as compliance with the ordinance does not require
a violation of the statute or render compliance with the statute
impossible. In 'Jordan Chapel Freewill Baptist Church v. Dade
County, 334 So.2d 661 (Fla. 3d DCA 1976) , the court held that a
bingo ordinance which required extensive record keeping and public
disclosure of prizes and other information did not conflict with
a statute which excluded from the gambling statute bingo games
conducted by non - profit corporations and other groups if certain
conditions were met. The Court said there was no conflict because
the bingo statute provided minimum regulations and contained no
language prohibiting additional, stricter regulations by local
governments. However, where a statute provides rights along with
11
000572
regulations and the ordinance restricts the rights to the extent
that compliance with both would "hopelessly entangle . . . [a
citizen in the] web of government," the ordinance and the statute
conflict and the ordinance is invalid. See City of Miami Beach v.
Rocio Corp., 404 So.2d 1066 (Fla. 3d DCA 1981) holding that the
statutory regulation of conversion of fee simple property to
condominium ownership conflicted with the city ordinance which
provided stricter limitations on the right to convert and mandated
additional notice and time to apartment dwellers and to city
authorities prior to conversion than required by the statute.
As these cases illustrate, in determining whether a' statute
conflicts with an ordinance it is important to consider the nature
of the statute. If the statute mandates county action and the
ordinance does not follow the statute, the ordinance is
inconsistent. Similarly, if the statute grants rights and the
ordinance curtails them, the ordinance is inconsistent. If,
•
however, both the statute and the ordinance regulate an activity,
the two are not inconsistent unless compliance with one requires
violation of the other.
12
000571
III. NON- CHARTER COUNTY AUTHORITY TO ENACT FRANCHISE ORDINANCES
A.
ome
ule
..
we
ov
_•e•
•i
d
Statutes.
Specific authority to enact a franchise ordinance is not
listed Among the enumerated county home rule powers in Section
125.01, Florida Statutes. But the enumerated powers do include (1)
the power to regulate businesses (125.01(1)(h)]; (2) the power to
provide and regulate roads and related facilities [125.01(1)(m)];
(3) the power to enter into contractual obligations (125.01(3)(a));
and (4) the power to lease and sell property [125.01(3)(a)]. From
these enumerated powers, plus the legislative statement of liberal
construction, a non - charter county has the authority to enter into
a contract with a utility or to adopt a franchise ordinance
governing a utility, regulating roads and rights -of -way and
granting the use of public property. As the Supreme Court held in
Orange County, a county may rely on its enumerated powers as well
as its implied powers to fully carry on local government. In
adopting a franchise ordinance governing electric, natural gas,
cable television, water, sewer, solid waste or other utilities, a
county may rely on the enumerated powers to regulate roads and
businesses and to contract, lease and sell property, as well as the
implied powers of Section 125.01.
The Attorney General has twice opined that non- charter,
counties have the home rule authority to grant franchises. In 1971,
the Attorney General said that non - charter counties have the home
rule authority to grant exclusive franchises for water, sewer and
13
000575
1
garbage collection services. AGO 071 -54 (April 1, 1971). The
Attorney General relied on the county home rule authority granted
by the Legislature in Section 125.65, the statute which preceded
the adoption of Section 125.01, Florida Statutes. Section 125.65,
Florida Statutes, (1971 Supp.) provided the following:
(1) In accordance with the provisions of
Section 1, Art.VIII of the state constitution,
counties shall have all powers of local self -
government, including governmental, corporate
and proprietary powers, to enable them to
conduct county government, perform county
functions, and render county services, and may
exercise any such power for county purposes,
not inconsistent with general or special law.
•
(3) The provisions of this section shall be
construed as to secure for the counties the
broad exercise of home rule powers granted by
the constitution.
This grant of authority is as broad as currently provided in
Section 125.01, Florida Statutes. The Attorney General said that
in the absence of a statutory prohibition, a non - charter county has
the home rule power to grant franchises. A similar result was
reached by the Florida Attorney General in a 1973 opinion which
said that a non - charter county may grant an exclusive franchise for
garbage collection because there is no
against it. AGO 073 -58 (March 13, 1973).
B. Statutory Authority to License Utilities.
The statutory authority for counties to grant a license
statutory
prohibition
to
utilities does not preclude a county from adopting a franchise
ordinance. Section 125.42, Florida Statutes, authorizes counties
14
000576
i
•
to grant licenses to utilities for use of the county rights -of -way.
In pertinent part, this section provides:
(1) The board of county commissioners, with
respect to property located without the
corporate limits of any municipality, is
authorized to grant a license to any person or
private corporation to construct, maintain,
repair, operate, and remove lines for the
transmission of water, sewage gas, power,
telephone, other public utilities, and
television under, on, over, across and along
any county highway or any public road or
highway acquired by the county br public by
purchase gift, devise, dedication, or
prescription. . . .
(4) This law is intended to provide an
additional method for the granting of licenses
and shall not be construed to repeal any law
now in effect relating to the same subject.
The Attorney General has opined that Section 125.42 does not
authorize a county to impose an annual charge for the use of county
right -of -way. AGO 076 -14 (January 23, 1976). But the opinion
relies on a case which predates the 1968 adoption of Section 1(f),
Article VIII of the Florida Constitution and the implementing
provisions of Section 125.01, Florida Statutes. Because of this
misplaced reliance, the reasoning of AGO 076 -14 conflicts with the
decisions in State of Florida v. Orange County, Speer v. Olson and
Taylor v. Lee County. When viewed in light of such decisions,
Section 125.42 is not a limitation on the power of a county to
impose a franchise fee or charge for the use of the right -of -way.
Section 125.42 was adopted in 1947, a time in which counties did
not have home rule power and were subdivisions of the State
15
000577
1
requiring specific legislative authority for their actions. See,
Chapter 23850, Laws of Florida (1947). The power of non - charter
counties is now broad and encompasses all the authority to carry
on local government not inconsistent with general or special law.
A••- properly drawn county franchise ordinance is not
inconsistent with Section 125.42. This section authorizes counties
to grant licenses for cable television, water, sewage, gas, power,
and telephone lines for the use of rights =of -way. Unlike the
statute requiring millage to be set in a specific manner as
considered in the Wilson case, Section 125.42 does not mandate
particular county action. The statute in Wilson used the term
"shall ". Section 125.42 states that the county "is authorized ".
Moreover, Section 125.42 by its terms does not provide exclusive
authority to regulate utilities nor preclude the adoption of
reasonable regulations on right -of -way use and the imposition of
reasonable rental fees. The statute states it is supplemental to
other authority granted by law. In addition, other statutes
provide for county regulation of rights -of -way and utility line
placement. See Sections 125.01(h) and 337.01, Florida Statutes.
•
This statutory authority to license utility use of right -of -way is
one alternative source of power for the county. As the Supreme
Court said in the Lee County and Orange County cases, a specific
statutory authority may be rejected by a county which may elect to
proceed under its home rule authority.
16
000578
C.
e
t
_ ,.
Utility Lines in Addition to Section 125.01.
Chapter 337, Florida Statutes, authorizes local governments
to regulate the placement of utility lines. Subsection 337.401(1)
provide$;:
(L)ocal government entities . . .that have
jurisdiction and control of public roads are
authorized to prescribe and enforce reasonable
rules or regulations with reference to the
placing and maintaining, along, across, or on
any road under their respective jurisdictions
any electric transmission, telephone, or
telegraph lines, pole lines, poles, railways,
ditches, sewers, water, heat, or gas mains,
pipelines, fences, gasoline tanks and pumps,
or other structures • • • •
Subsection (2) authorizes local governments, including cdunties,
to grant the use of a right -of -way for the utility in accordance
with such rules or regulations as the local government may adopt.
It also prohibits a utility from installing or moving lines without
a written permit of the local government. Section 337.402 requires
the utility to repair any damage caused by the utility and limits
a municipal franchise fee on telephone companies to one percent of
gross receipts on recurring local charges.
A franchise ordinance is not inconsistent with the Chapter
337 authority to regulate the placement of lines. Unlike the
millage statute under review in the Wilson case, Chapter 337 does
not expressly limit the county's authority in the area of placement .
of lines to that specifically provided in the statute. Nor does
Chapter 337 specifically state that it provides the exclusive
authority to regulate the placement of utility lines or it
17
000579
1
prohibits the imposition of a reasonable fee for rental and to pay
the cost of regulation. The Legislature recognized that utilities
would not be governed solely by this statute because the statute
itself recognizes and limits municipal franchise ordinances. This
section Is not inconsistent with a franchise ordinance.
Based on the Supreme Court's rationale in Lee County and
Orange County, a county may rely either on Chapter 337 or its
Section 125.01 home rule powers to regulate line placement.
Pursuant to either authority, the adoption of a franchise ordinance
may include regulation of line placement.
D. Statutory Authority Regarding Telephone Companies.
Section 362.01, Florida Statutes, provides that telegraph and
telephone companies may use public road right -of -way. That section
provides:
Any telegraph or telephone company chartered
by this or another state, or any individual
operating or desiring to operate a telegraph
or telephone line, or lines, in this state,
may erect posts, wires and other fixtures for
telegraph or telephone purposes on or beside
any public road or highway; provided, however,
that the same shall not be set so as to
obstruct or interfere with the common uses of
said roads or highways. Permission to occupy
the streets of an incorporated city or town
must first be obtained from the city or town
council.
A county franchise ordinance governing telephone utilities is not
inconsistent with this section. Section 362.01 does not expressly
limit county authority to enact a franchise ordinance although it
grants a right to telephone companies to use the right -of -way.
Unlike the statutory grant of time for bringing suit against the
18
000580
county discussed in sca_, this section imposes limits on the
rights granted by the statute and implies that local governments
may further limit them. The statute provides that the telephone
company authority is limited to the extent that it may not obstruct
the common uses of the right -of -way. This limitation along with
the fact that other statutes authorize county regulation of
telephone company line placement indicates that a franchise
ordinance is not inconsistent with the statute.
E. Franchise Agreements and _public Service Commission
Regulation.
Utility regulation by the Florida Public Service Commission
( "PSC ") is not inconsistent with a franchise ordinance governing
a utility. Under Florida law, the PSC regulates service
availability and rates of some water and sewer utilities, electric
utilities and telephone utilities. In 1971, the Attorney General
issued an opinion implying that county relinquishment to the Psc
of its authority to regulate water and sewer rates preempted county
authority to grant a water and sewer franchise. AGO 071 -54
(April 1, 1971). However, the courts have made it clear that a
county franchise agreement can coexist with PSC regulation of
utilities. For example, in County of Lee v. Lehigh Utilities,
Inc., 307 So. 2d 496 (Fla. 2d DCA 1975) , the Court held that the
county's relinquishment of authority to regulate water and sewer
rates to the PSC did not necessarily void a franchise agreement
with a water or sewer utility requiring the payment of a franchise
fee equal to six percent of its gross receipts to the county. The
19
lwrt ruled that the franchise fee may be lawful, provided that
4 the county continued to provide benefits to the utility such as the
use of right -of -way or other assistance as envisioned by the
original agreement.
F.-47`'iranchise Fees Compared to Taxes.
Municipalities in Florida are authorized to impose utility
taxes pursuant to Section 166.231, Florida Statutes. Some charter
counties may also impose the utility tax. -See, State ex rel.
Volusia County v. Dickinson, 269 So.2d 9 (Fla. 1972), in which the
Supreme Court upheld the utility tax of Volusia County, a charter
county. Non - charter counties are not granted that authority under
the statutory construction in the Volusia County case. In 1971,
the Attorney General opined that a non - charter county had no
authority to impose a utility tax on private and municipal
corporations providing utility services in the unincorporated area.
AGO 071 -54 (April 1, 1971). The Attorney General noted that
counties had no .statutory authority to impose a utility tax.
Relying on Article VII, Section 9(a) of the Florida Constitution,
which limits county taxation authority to the ad valorem tax and
to such other taxes as are authorized by general law, the Attorney
General opined that a non - charter county had no general law
authority to impose a utility tax.
A franchise fee is not a tax governed by Article VII, Section
9(a) of the Florida Constitution. The Supreme Court addressed the
issue of franchise fees versus taxes in City of Plant City v. Mayo,
337 So.2d 966 (Fla. 1976). A question was raised as to the
20
000582
r
eatment of franchise fees in the electric company rate base. The
7 municipality and the utility had negotiated a fee equal to six
percent of the gross receipts collected by the company within the
municipality An return for use of the municipal rights -of -way. The
�J1
Supreme-Court ruled that the franchise fees were not taxes, rather
"they are bargained for in exchange for specific property rights
relinquished by the cities ". The Attorney General reached the same
conclusion in a 1976 opinion wherein he said that a community
college is not exempt from the payment of a natural gas utility
franchise fee even though it would be exempt from a utility tax.
AGO 077 -94 (September 13, 1977).
IV. DEVELOPMENT AND IMPLEMENTATION OF A FRANCHISE ORDINANCE
The preferable approach to secure a franchise agreement with
a particular utility is to enter good faith negotiations to set the
terms and conditions of the franchise agreement and the degree and
manner of county regulation. If the utility refuses to negotiate
or questions the'County's authority to grant a franchise, the
County can enact an ordinance setting the terms and conditions of
the franchise and require its execution by a date certain as a
condition of utilizing the County's rights -of -way and as a means
of regulating the placement of utility lines. If the utility
persists in questioning the authority of the County to :require a
franchise as a condition of the use of county rights -of -way and as
a regulatory vehicle of utility line placement, and other utility
regulation, a declaratory action can be filed in court to resolve
the dispute over the County's authority.
21
000583
A. Resolving the Issue of County Authority to Enter Into
Franchise Agreements.
A declaratory judgment as provided in the Declaratory Judgment
Act, Chapter 86, Florida Statutes, affords relief from insecurity
and ungertainty with respect to rights, status and other equitable
or legal relations. To trigger jurisdiction under the Declaratory
Judgment Act, the moving party must show that he is in doubt as to
the existence or nonexistence of some rights or status, and that
he is entitled to have such doubt removed. ")Celner v. Woody, 399
So.2d 35 (Fla. 3rd DCA 1981). It is within the court's discretion
to allow a declaratory action. The court may not allow the action
if the plaintiff is merely seeking legal advice about the correct
legal path to take. gelner at page 38; Village of Virginia
Gardens v. City of Miami Springs, 171 So.2d 199 (Fla. 3d DCA 1965).
In East Naples Water $vstems. Inc. v. Board of County
Commissioners of Collier County, 457 So.2d 1057 (Fla. 2nd DCA
1984), the Court ruled that a utility company uncertain about the
applicability of a newly adopted franchise ordinance may question
the validity of the ordinance by filing a declaratory action. A
water /sewer utility brought an action for declaratory relief
concerning the validity of a county ordinance relating to the
regulation of water and sewage systems. The utility, the court
held, was entitled to proceed if the action would determine whether
it was subject to the jurisdiction of the County. A utility may
challenge the validity of a franchise ordinance by filing a
declaratory action.
22
000584
J
Should the County file a declaratory action, the County could
,:ate that it adopted an ordinance providing for certain regulation
of utilities including the payment of a fee and ask the court to
determine whether it had the home rule authority to enforce the
r ud
ordinance. In a declaratory judgment action, the fact that the j g
interpretation of the court might be adverse to the plaintiff does
not preclude the right to declaratory relief. Because the County
could state that it was uncertain as to its authority pursuant to
the Florida Constitution and the statutes to adopt a franchise
ordinance which includes a fee, it could allege the uncertainty
element required of declaratory actions. Declaratory actions are
discretionary and courts are not required to entertain 'them.
Although the court may refuse to entertain the County's action,
public policy considerations should persuade the court to resolve
the issue.
B. Developina a Franchise Ordinance,.
A franchise ordinance governs a utility's authority to operate
within the county as well as the county's responsibility to the
utility. The ordinance establishes the utility's authority to
'provide utility services in the county and its authority to use the
county right -of -way.
To protect the county from utility actions,
the ordinance may require the utility to be responsible for damage
caused to the right -of -way or elsewhere. The ordinance may
prescribe county supervision over the placement, and maintenance of
utility lines. A franchise fee for the grant of the franchise may
be required. The effect of a sale of the utility on the franchise
23
000585
should also be addressed. The ordinance should have an expiration
date so that its provisions may be revised as the community and the
utility changes.
Most franchises also include a franchise fee. The basis and
rate of the fee must be carefully considered because the fees are
the obligation of the utility to the local government, but may be
added directly to the customers' monthly bill and identified as the
County's franchise fee. The county must also decide on the
frequency of collection of the fee and performance of audit.
C. Competition and Franchise Ordinances.
Special consideration should be made in drafting a franchise
ordinance for utilities which have competition. An electric
utility may compete with a natural gas utility in providing power
for heating. Both use county right -of -way and a franchise
ordinance may address both types of utilities. But not all
competing utilities use rights -of -way. A local telephone company
uses county right -of -way for their lines to provide local and long
distance service. The local company competes with
telecommunication companies which do not directly use the county
right -of -way. The Legislature has recognized the possible
competitive disadvantage associated with municipal franchise fees
on telephone companies and limited them to one percent of gross
receipts for recurring local charges, with credit required for all
other municipal fees and taxes, including ad valorem taxes. See,
Section 337.401(3), Florida Statutes.
24
January 5, 1990
000586
OKEECHOBEE BEACH WATER ASSOCIATION, INC.
October 11, 1993
8840 HIGHWAY 78, W.
OKEECHOBEE, FL. 34974 -97.87
NOTICE
TO: The Membership of Okeechob.ee?Beach Water Association, Inc.
As you know :,,the Board of Di r•ectore,,has decided to build a 1.5
million ga11on pert day water': ytreatment plant rather than seek
another bulk sale contract wi tli" the. City of Okeechobee.
it_ i l r ,..•J;o• ,,1,•�S ,•
Okeechobee County Commissioners and Glades County Commissioners
have approved a; Franchise Ordinance granting a service area to
Okeechobee Beach Water Association (OBWA). Each county ordinance
requires OBWA :to pay a l six,i,(6%) ;.percent, Franchise Fee to the
,
county. The Countires wil„1, hold ' the f r.anch,ise ,fees in a separate
fund and will expend the funds to, 'dev,e1op or assist OBWA in the
development of the water ortsewer,syst,em, },or both, in the service
area.
OBWA Board of Directors has found it;necessary to increase the
monthly water bill to pay, for the franchise;fee required by each
county. The County Franchise Fee will be added: as a separate line
on each monthly water bill.' , The added fee will be 51.00 per meter
per month at this time.
•
OBWA Board of. Directors has;, also found it necessary to increase the
fee to transfer' the membership from,one property owner to another.
Because the_ water sys,tem,can only ,consider property owners as
members, it'is necessary, to transfer the membership anytime a
property changes- owner hip.' r The:- Mikrrenitian'sf er fee is $3.00.
The Directors are recommending an increase to $5.00 for the first
notice to transfer,,$10.00 for the second notice.to transfer and
$20.00 for the'third and final; notice,to transfer the membership to
the'new property owner. The water•rservice will be turned off if
the transfer is not completed 'Within fifteen (15) days after the
third notice is mailed to the new :property owner. Additional fees
will be added if the water service is turned off for nonpayment of
a regular water' bill or nonpayment`of'transfer fee and completion
of Service Agreement.
As required in the County Franchise Ordinances, the Board of
Directors will holda PUBLIC HEARING on NOVEMBER 9, 1993, at 7:00
P.M. The public hearing will'be° held at the OBWA office to allow
all interested persons an opportunity to speak concerning the
proposed changes in the monthly water bill and other charges by the
Association.
The Franchise Ordinances adopted by Okeechobee and Glades Counties
provide procedures for filing complaints concerning the OBWA
system. Written complaints.; received by this office are
investigated, and necessary,,;• action ,<:, taken. We will record verbal
complaints4riontl;acomplaint form \at the `office and proper action
taken by OBWA. `±Please`call (813)1.763 -3793 if you have a complaint
or mail written complaints to the office at 8840 Highway 78 West.
* ** MORE ON THE BACK * **
The Membership of Okeechobee Beach Water Association, Inc.
October 11, 1993 ; � y, •I ' /0:11 .Y �.�r b.z G.
Page 2
H1 Ir
The current water rates and charges of this Association are as
follows:
Water Rate - Residential Service
Monthly minimum $8.00
Includes 3,000 gallons /of water
$3.00 charge per 1,000 gallons over 3,000 gallons
Water Rate - Commerciale Service;,,
Monthly minimum i"418:00 , ,,,,�„ �, ,;� ,, ¢�a:,i l
Includes 5,000 gallons of water
$3.00 charge per 1,000 gallons over 5,000 gallons
Miscellaneous Charges
Meter testing at customer's,request
Turn water on after delinquent charges are paid
Turn water on at customer's request'
Turn water off at customer's 'request'
Return of check by bank
(Fee established by Florida Law)
Fee to transfer membership 1
Late Charge added if payment not received in office
on or before the 10th of the month.
Actual cost
$10.00
$10.00
$10.00
$20.00
$ 3.00
10%
The Rules and Regulations, Section 10,, requires a cut off valve on
the customer's side of the'met�er2, box'`and., within twelve inches of
...pis 1:., •: � '{
the meter box. If you have a valve within twelve inches of the
meter, thank you. If you do''not have a cutoff valve,•wi,thin twelve
inches of the-meter- box, - please ;- instal �., , a valve as soon as
4 .1 .1 .1. i I ,,. t r t o 4, 4'r a•
possible. ,,1>fatr= rllr.,,
, ,,� y Ito ,• ,
If the angle valve inside;the meter box;; i
is damaged.by! the customer,
there will be a charge to;'the customer of the actual cost for
replacement of the angle }valve. This''v`alve is to be used by OBWA
employees only. 4 ,,i
!�
Copies of the Rules and Regulations were mailed to each customer on
July 29, 1992. If 'you`tdid not receive a copy, please pick up a
copy at the office.
The Board of Directors wish to thank you for „your,support of this
Association during : the pastyears and1 theyears to come.
Yours Truly, ,
pY.0 -A92
L. C. Fortner,
Superintendent
LCF /pdv
9
't".�01 Fca1��;Ijr`s
is , i t ! .....
real.
!E,
'WO
DRAFT
4/14/93
007.00
OKEECHOBEE COUNTY, FLORIDA
OKEECHOBEE BEACH WATER ASSOCIATION, INC.
WATER AND SEWER FRANCHISE ORDINANCE
ADOPTED APRIL, 1993
TABLE OF CONTENTS
ELK 344 P cE1129
PAGE
SECTION 1.01.
SECTION 1.02.
SECTION 1.03.
SECTION 2.01.
SECTION 2.02.
SECTION 2.03.
SECTION 2.04.
SECTION 2.05.
SECTION 2.06.
SECTION 2.07.
SECTION 2.08.
SECTION 2.09.
SECTION 2.10.
SECTION
SECTION
SECTION
SECTION
SECTION
SECTION
SECTION
SECTION
SECTION
SECTION
SECTION
3.01.
3.02.
3.03.
3.04.
3.05.
3.06.
3.07.
3.08.
3.09.
3.10.
3.11.
SECTION 3.12.
SECTION 3.13.
ARTICLE I
INTRODUCTION
DEFINITIONS
CONSTRUCTION AND INTERPRETATION
FINDINGS.
ARTICLE II
WATER AND SEWER SYSTEM FRANCHISE
GRANT OF AUTHORITY
WATER SYSTEM USERS
SEWER SYSTEM USERS
TERM OF FRANCHISE; ORDINANCE CONSTITUTES
FRANCHISE AGREEMENT
FRANCHISE CONSIDERATION
ASSIGNMENT
RIGHT TO PURCHASE ASSOCIATION FACILITIES
CONSTRUCTION TIMETABLE
TERMINATION
BREACH
ARTICLE III
OPERATIONS
USE OF RIGHT -OF -WAYS
CONSTRUCTION OR INSTALLATION OF FACILITIES
SYSTEM MAINTENANCE
TRANSITION AND SERVICE AGREEMENTS
CONTRIBUTIONS TO BENEFIT USERS
RATES, FEES AND CHARGES
SYSTEM DEVELOPMENT CHARGES
REPORTING REQUIREMENT, BOOKS AND RECORDS .
COMPLAINTS
PERFORMANCE MONITORING
MANDATORY USE OF ASSOCIATION FACILITIES AND
SERVICES
PLANNING REQUIREMENTS
COMPLIANCE WITH OTHER LAWS, ORDINANCES AND
REGULATIONS
i
1
3
4
8
9
9
9
10
11
11
14
15
16
18
18
19
20
21
21
23
27
28
29
30
30
32
ARTICLE IV
GENERAL
SECTION 4.01. INDEMNIFICATION
SECTION 4.02. CHANGE OF LAW
SECTION 4.03. AMENDMENTS AND WAIVERS
SECTION 4.04. SEVERABILITY
SECTION 4.05. ALTERNATIVE METHOD
SECTION 4.06. EFFECTIVE DATE
APPENDIX A FORM OF ACCEPTANCE
APPENDIX B SERVICE AREA
11
% 344 P4rE1131
ORDINANCE NO. 93- 5
AN ORDINANCE GRANTING A NON - EXCLUSIVE
FRANCHISE TO OKEECHOBEE BEACH WATER
ASSOCIATION, INC., ITS SUCCESSORS AND ASSIGNS,
TO OPERATE AND MAINTAIN WATER AND SEWER
SYSTEMS IN A PORTION OF THE UNINCORPORATED
AREA OF OKEECHOBEE COUNTY; IMPOSING PROVISIONS
AND CONDITIONS RELATING THERETO, PROVIDING FOR
SEVERABILITY; AND PROVIDING FOR AN EFFECTIVE
DATE.
NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY
COMMISSIONERS, OKEECHOBEE COUNTY, FLORIDA:
ARTICLE I
INTRODUCTION
SECTION 1.01. DEFINITIONS. As used in this Ordinance, the
following words and terms shall have the following meanings, unless
the context clearly otherwise requires:
"Association" means the Okeechobee Beach Water Association,
Inc., a Florida corporation, its successors and assigns..
"County" means Okeechobee County, Florida.
"Franchise Agreement" means the agreement between the County
and the Association as provided in this Ordinance and accepted by
the Association pursuant to its terms, as amended by the parties.
"MGD" is an abbreviation for "million gallons per day."
"Service Area" means the lands described in Appendix B
attached hereto.
"Sewer system" means and includes any plant, system, facility,
or property and additions, extensions and improvements thereto at
any future time constructed or acquired as part thereof, useful or
1
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'344 P4CE
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
rK 344 frE1133
construction, expansion or equipping of excess and unused capacity
of the system or expansion thereof in order to serve new users of
the facilities of the system and new development within the Service
Area.
"Water system" means and includes any plant, system, facility,
or property and additions, extensions and improvements thereto at
any future time constructed or.acquired as part thereof, useful or
necessary or having the present capacity for future use in
connection with the development of sources, treatment, or
purification and distribution of water for domestic or industrial
use and, without limiting the generality of the foregoing includes
dams, reservoirs, storage tanks, mains, lines, valves, pumping
stations, laterals, and pipes for the purpose of carrying water to
the premises connected with such system and includes all_real and
personal property and any interests therein, rights, easements . an
franchises of any nature whatsoever relating to any such system and
necessary or convenient for the operation thereof.
SECTION 1.02. CONSTRUCTION AND INTERPRETATION.
(A) The terms "herein," "hereunder," "hereby," "hereto,"
"hereof," and any similar terms, shall refer to this Ordinance; the
term "heretofore" shall mean before the date of adoption of this
Ordinance; and the term "hereafter" shall mean after the date of
adoption of this Ordinance.
(B) Words importing one gender include every other gender.
(C) Words importing the singular number include the plural
number, and vice versa.
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6 :44 F CE 1 13-4
SECTION 1.03. FINDINGS. It is hereby ascertained, determined
and declared that:
(A) It is in the public interest to ensure that all lands
within the Service Area are adequately provided with high quality
fresh water service and high quality wastewater service.
(B) It is in the public interest to retain control over the
use of public and County maintained rights of way by providers of
central water and sewer service to ensure against interference with
the public convenience, to promote aesthetic considerations, to
promote planned and efficient use of limited right of way space,
and to protect the public investment of right of way property.
(C) It is in the public interest to attract, encourage,
protect and nurture high - quality, efficient and cooperative
providers of water and sewer service and that this . can be
accomplished by protecting the capital investments of private
utility companies, associations or cooperatives providing service
to members or rate payers who solely own or control such companies,
associations or cooperatives.
(D) It is in the public interest to ensure that high quality
water and sewer service is maintained through a responsive
complaint procedure.
(E) The provision of central water and sewer services usually
takes the form of a natural monopoly which, if not regulated, would
have the power to operate without adequate regard for the public
interest.
4
L4 3 44 f10E 1135
(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
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created in 1964 with the acquiescence of the City of Okeechobee and
the County to provide water service to the Service Area.
(K) The Association has, since 1965, entered into a series
of long term agreements with the City of Okeechobee wherein the
City of Okeechobee recognized and defined the Association's service
area and has been selling bulk water to the Association for the
Association's use in providing water service to the Service Area.
The current bulk commodity agreement was entered into in 1985,
terminates on October 1, 1994 and limits the amount of water to be
supplied to the Association to .75 MGD.
(L) As early as June of 1991, after extensive negotiations
commencing as early as 1986 between the Association and the City
to increase the daily bulk water supply to the Association beyond
.75 MGD, were unfruitful, the Association notified the City that
it would develop its own treatment facilities and would no longer
seek to purchase bulk water from the City after the current bulk
commodity agreement expires on October 1, 1994.
(M) The Association has diligently proceeded to test, acquire
and design a potable water well field, acquire a water :treatment
plant site, design a 1.5 MGD water treatment plant, seek and obtain
necessary approvals from the County, the Central Florida Regional
Planning Council, the Florida Department of Environmental
Regulation and the South Florida Water Management District.
(N) The provision of central sewer service to a parcel of
property by the same utility that provides central water service
promotes water conservation, efficiency of service and is the most
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cost effective alternative to provide wastewater services to the
Service Area.
(0) The Association has indicated to the County that it is
willing to seek transition agreements with the operators of
existing package water and sewage treatment plants and on -site
disposal facilities within the Service Area, develop a plan in
conjunction with the County to provide a central sewer system to
all water customers served by the Association and, under certain
circumstances, implement such plan.
(P) The provision of such central sewer system by the
Association in the Service Area is in the overall best interest of
the health, welfare and safety of the citizens, visitors and
landowners of the County.
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ARTICLE II
WATER AND SEWER SYSTEM FRANCHISE
SECTION 2.01. GRANT OF AUTHORITY.
(A) There is hereby granted to the Association, its
successors and assigns, the non - exclusive right, privilege or
franchise, to construct, maintain and operate in, under, upon,
the present and future streets, alleys, bridges,
over
and across
easements, rights -of -way and other places owned by the County and
its successors, water lines, pipes, wellfields, pumps, water
any and all other appurtenances necessary
of operating a water system and supplying
treatment facilities and
thereto for the purpose
water within the Service Area to the County, its successors, and
the inhabitants thereof, and persons and corporations within and
beyond the limits of the Service Area.
(B) There is hereby granted to
assigns, the non - exclusive right, privilege or
successors and
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
the Association, its
8
344 PlGf1i3J
thereof, and persons and corporations within and beyond the limits
of the Service Area.
SECTION 2.02. WATER SYSTEM USERS. All occupants and
landowners within the Service Area are hereby granted the privilege
and right to receive from the Association the water services
described herein, subject to the terms and conditions described
herein; provided, however, that any request for Association water
services that requires the extension of water mains, shall be
subject to prior approval of the County. Said approval shall not
be unreasonably withheld.
SECTION 2.03. SEWER SYSTEM USERS. All occupants and
landowners within the Service Area are hereby granted the privilege
and right to receive from the Association the wastewater services
described herein, subject to the terms and conditions described
herein; provided, however, that any request for Association
wastewater services that require the extension of sewer or reuse
water mains or the reconfiguration, installation or location of
treatment facilities, shall be subject to prior approval of the
County. Said approval shall not be unreasonably withheld.
SECTION 2.04. TERM OF FRANCHISE; ORDINANCE CONSTITUTES
FRANCHISE AGREEMENT. This Ordinance shall take effect and be in
force from and after the final passage hereof, as required by law,
and upon filing an acceptance by the Association with the County,
in the form attached as Appendix A, within 7 days after the
adoption of this Ordinance. Such franchise shall continue in force
and effect for term of 30 years, beginning with the date of such
9
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acceptance. This Ordinance, upon acceptance by the Association as
provided herein, shall be construed as and constitute the Franchise
Agreement.
SECTION 2.05. FRANCHISE CONSIDERATION.
(A) To compensate the County for the cost of administration,
supervision and inspection rendered for the effective performance
of this Franchise Agreement and as fair and reasonable rental for
the use by the Association of the streets, alleys, bridges,
easements, rights -of -way and other places owned by the County, the
Association shall pay an annual fee to the County. Any amounts not
paid when due shall earn interest at the same rate provided in
Section 55.03, Florida Statutes. Within 60 days after the first
anniversary date of this grant and within 60 days after each
succeeding anniversary date thereafter, the Association, its
successors and assigns, shall pay to the County and its successors
and assigns, an amount equal to six percent (6 %) of the
Association's gross revenues from the sale of water: and the
provision of wastewater services to its customers within the
geographic limits of Okeechobee County for the annual period
proceeding the applicable anniversary date.
(B) Nothing herein shall be construed to be a limitation on
the assessment and collection of valid taxes, special assessments,
licenses, fees, charges or other impositions by the County or other
public or governmental body on or from the Association in excess
of such six percent (6 %) amount.
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BC, 3±i J CE1i4i
(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
franchise, written notice
Association to the County
facilities and operations under this
of at least 90 days shall be given by the
. 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 '
sFranchise
Agreement and shall provide the County sufficient evidence to
establish its capacity to do so before said sale to the purchaser
may be consummated.
SECTION 2.07. RIGHT TO PURCHASE ASSOCIATION FACILITIES.
(A) The County hereby reserves the right to terminate the
franchise granted herein and purchase or otherwise acquire the
water and sewer system of the Association operated under this
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Irra :344 f4 f1I42
Franchise Agreement and such right of purchase is a condition
precedent to the taking effect of this grant to the Association.
The County's right of purchase under this section shall not be
exercised, unless otherwise consented to by the Association, for
a period of three years from the effective date of this ordinance,
or upon substantial completion of a water treatment facility,
whichever shall first occur. ,The Association shall be deemed to
have given and granted such right of purchase or acquisition by its
acceptance of this franchise, which shall be signified by filing
an acceptance by the Association with the County, in the form
attached as Appendix A, within 7 days of the adoption date of this
Ordinance.
(B) In the event the County exercises its right to purchase
or otherwise acquire all or any part of the water system or sewer
system of the Association, the purchase price shall be mutually
agreed upon by the Association and the County, but in no event
shall the County be required to pay more than the amount of any
outstanding indebtedness owed by the Association for revenue bonds
or other obligations issued by the Association to finance the
facilities or operations of its systems, if any, plus $100
additional consideration.
(C) In consideration of the Association's agreement to limit
the amount payable by the County to acquire the Association's water
or sewer systems in accordance with subsection (B) above, the
County or its successor in interest shall take title subject to a
covenant running with the land and systems so acquired which
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requires the grantee, unless otherwise agreed to by the
Association, (1) to operate any water or sewer system acquired from
or formerly operated by the City of Okeechobee on a self -
liquidating basis, i.e., to impose rates and charges for the
services provided by such systems that are sufficient to pay the
debt service, operating and maintenance expenses and all other
costs properly allocable to such systems and (2) to segregate any
system acquired from the Association from any system acquired from
or formerly operated by the City of Okeechobee. Additionally, any
future contract by which the County or its successor in interest
agrees to transfer title to the Association's water and sewer
system shall include a covenant requiring the transferee to operate
any water or sewer system acquired from the City of Okeechobee on
a self- liquidating and segregated basis, as aforesaid, specifying
that the Association shall be a third -party beneficiary of such
covenant. This subsection (C) shall not be construed to prohibit
any physical interconnection between the Association's water or
sewer system and any water or sewer system acquired from the City
of Okeechobee to enhance either system's reliability for 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
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1 344 F CE1144
facilities and property, together with all documentation necessary
to effect a transfer of all property and contract rights to the
County, its successors or assigns, give possession and control of
such systems to the County within 90 days and otherwise fully
cooperate in the orderly transfer of assets and operations to the
County. Upon receiving documents of title and the possession and
control of the equipment, facilities and operations of the
Association, the County shall then become responsible for all care,
maintenance and operation of such property.
(E) Nothing in this section shall limit the County's ability
to exercise its powers of eminent domain to otherwise acquire the
systems of the Association. However, in the event the County does
acquire the systems of the Association by eminent domain, the
covenants in this Section shall be deemed unenforceable and severed
from this Franchise Agreement.
SECTION 2.08. CONSTRUCTION TIMETABLE.
(A) The Association has represented to the County that it has
tested, acquired and designed a potable water well field, acquired
a water treatment plant site, and is designing a 1.5 MGD water
treatment plant to serve the Service Area. The Association shall
continue to seek and obtain necessary approvals, permits and
financing and construct a water treatment plant to serve the
potable water needs of the Service Area when its current commodity
agreement with the City of Okeechobee expires in October of 1994.
(B) No later than within one year after the Association's
water treatment plant is substantially complete, the Association
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shall develop and submit a plan to the County to provide central
wastewater services to all water customers served by the
Association. The County and the Association shall actively
participate in the development of the plan. To the extent of the
funds actually paid to the County under section 2.05 or to the
extent the South Florida Water Management District provides funding
for such activity to the County, the County shall reimburse the
Association or otherwise bear all costs of both the Association and
the County in developing such plan. In any event, the Association
shall have no obligation to implement the plan. The implementation
of such a plan by the Association shall be subject to assistance
from the local, state and federal governments in providing funding
and developing an affordable infrastructure delivery program.
(C) The County has entered into a cooperative funding
agreement with the South Florida Water Management District. The
potential for negative environmental effects as a result of the
proliferation of package treatment plants and septic systems within
close proximity to Lake Okeechobee was the driving force behind the
cooperative funding agreement and appropriations thereunder are
dependent upon future budget approvals. The County shall, subject
to the terms and intent of such cooperative agreement as amended,
assist the Association in fulfilling the Association's obligations
under the Franchise Agreement relative to planning and developing
central water and sewer systems in the Service Area.
SECTION 2.09. TERMINATION. Failure of the Association to
comply substantially with any material provisions of this Franchise
15
. 344 'Fla 1146
Agreement shall be grounds for termination of this grant, but no
such termination shall take effect until expiration of 180 days
from the date of receipt by the Association of written notice of
such material non - compliance and the failure of the Association to
cure such material non - compliance during such 180 day period to the
satisfaction of the County. The County may in its discretion grant
additional time to the Association for compliance as required by
the circumstances of the case.
SECTION 2.10. BREACH. The Association recognizes that the
failure on the part of the Association to comply with the terms of
this Franchise Agreement is likely to cause irreparable damage to
the County, and damages at law will be an inadequate remedy.
Therefore, the Association agrees that in the event of a breach or
threatened breach of any of the terms of this Franchise Agreement
by the Association, the County shall be entitled to an injunction
restraining such breach or to a decree of specific performance, or
both, without showing or providing any actual damage, togdther with
recovery of reasonable attorneys fees and costs
obtaining said equitable relief
until such time
as
incurred in
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
16
Zit; :344 PMMf1147
specific performance enforcing the provisions of this Franchise
Agreement.
17
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ARTICLE III
8
OPERATIONS
SECTION 3.01. USE OF RIGHT -OF -WAYS.
(A) In performing the work and providing the water system and
sewer system services provided by this franchise, the Association
shall, at its expense and without reimbursement from the County,
locate or relocate its system facilities so as to interfere as
little as possible with traffic, over said streets, alleys,
bridges, easements, rights -of -way and public places owned by the
County and shall provide reasonable access to abutting public and
private property. All system facilities shall be located or
relocated under the County's supervision and with the County's
approval; however, the County shall not unreasonably interfere with
the proper operation of the water and sewer system of the
Association.
(B) Any portion of a street or other public way or'facility
disturbed by the Association's excavations or operations shall
within a reasonable time and as early as practicable after
disturbance, be restored by the Association at its expense in as
good or better condition as it was and immediately prior to the
disturbance.
SECTION 3.02. CONSTRUCTION OR INSTALLATION OF FACILITIES.
The construction, maintenance and operation of water system and
sewer system facilities, both as to those portions located within
the Service Area and those portions located beyond the Service
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Area, shall be subject to the prior approval of the County of the
plans and specifications for all such construction shall first be
approved by the County before construction is commenced. The
County, through its employees, officers or agents shall have the
right to inspect the system facilities of the Association at any
reasonable time.
SECTION 3.03. SYSTEM MAINTENANCE.
(A) The Association shall maintain in good condition and
operate its water and sewer systems so as to render efficient
service to the County and its inhabitants, and the Association
shall comply with the rules and regulations as are, or may be,
described' under the terms of this Franchise Agreement, and those
set forth by the State and federal governments for the operation
of water and sewer systems.
(B) Whenever it is necessary to shut off or interrupt service
for the purpose of making repairs, adjustments or installations,
the Association shall do so at times and under circumstances as
will cause the least amount of inconvenience to its customers.
(C) All water service shall be supplied through meters which
shall accurately measure the amount of water supplied to all
customers. The Association shall at any time requested by a
customer, make a test of the accuracy of any water meter. The
Association may impose a reasonable charge for such an accuracy
test.
(D) The Association shall install and maintain at its own
expense all necessary fittings, pipes and appliances, including all
19
° ;"1 44 WE1150
meters and meter boxes to delivery water to its customers. All
said fittings, pipes, appliances, meters and meter boxes shall
remain the property of the Association and shall at all times be
accessible to it or under its control.
(E) No plumber, owner or other unauthorized person shall
install or disconnect or remove a meter provided under this
franchise without the consent of the Association.
SECTION 3.04. TRANSITION AND SERVICE AGREEMENTS.
(A) The Association shall identify all owners and operators
of package water and wastewater treatment plants, and on -site
disposal facilities within the Service Area and seek transition
agreements, in form acceptable to both the County and the
Association, which provide for the transition of these package or
on -site treatment
facilities to service by water system and sewer
system facilities provided by the Association.
(B) The Association shall revise its water service agreement
procedures to require all landowners who have developdd 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
20
e`td x344 FarFl151
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
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
in
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B :34' P..GEl152
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
22
et,°([.K 3114 e!tE 1153
schedule or schedule of rates, fees or charges, shall be sent to
the County and shall also be given by one publication in a
newspaper circulating in Okeechobee County at least 20 days before
the date fixed in such notice for the public hearing, which may be
adjourned from time to time. After such hearing, the proposed
schedule or schedules, either as initially adopted or as modified
or amended, may be finally adopted.
(C) The rates, fees or charges adopted for any class of users
or properties served shall be extended to cover any additional
users of properties thereafter served which shall fall within the
same class, without the necessity of any further hearing or notice.
(D) Except as expressly provided by law, no free water or
sewer services shall be rendered by the Association and no
discrimination shall exist in the fees, rates and charges for the
users of the same class.
SECTION 3.07. SYSTEM DEVELOPMENT CHARGES.
(A) The Association may levy and collect system development
charges for the water system and the sewer system, or both, for
capital improvements and debt service on such capital improvements
as thereafter specified.
(B) Within the Service Area, under the following conditions,
the Association may levy and collect system development charges for
the water system and the sewer system, or both, for capital
improvements and debt service on such capital improvements as
hereinafter specified, within the Service Area, under all of the
following conditions:
23
BCA.344 .c€ii34
(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
representative
a property owner
or his
applies for a building permit
to
authorized
alter
an
existing structure previously connected to a water system or
sewer system owned or operated by the Association, where such
alteration increases the potential demand on the Association's
systems; and
(3) Whenever a property owner or his authorized
representative applies for a building permit to construct a
structure or alter a structure on property which according to
a plan adopted by the Association or the County is scheduled
in the future to be connected to a system owned or operated
by the Association even though the property owner or his
representative may receive interim water or interim sewer
service from a source other than the Association.
(C) If the structure on the property for which a system
development charge has been paid is not authorized to connect to
the Association's systems within 10 years of the date of such
payment, the property owner holding legal title at the end
10 -year period shall be eligible for a refund of the
development charge without interest. The Association shall
of the
system
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
24
FtLK 344 CFI1575
receipt requested to the then owner of record as shown on the most
recent ad valorem tax roll. Any property owner eligible for a
refund shall file written application with the Association for a
refund within 90 days of the date of mailing of the notice by the
Association or such property owner shall be deemed to have waived
any right to a refund, and the Association shall be entitled to
retain and apply the system development charge for capital water
and sewer improvements. Failure to construct the structure for
which a system development charge has been paid shall not
constitute grounds for a refund, nor shall delay or failure to
receive the mailed notice of eligibility for a refund toll the 90-
day time limit within which an application for refund must be
filed.
(D) All system development charges imposed for the water
system shall be segregated from all other funds held by the
Association and placed in a special fund. Except as otherwise
provided by the resolution authorizing the issuance of bonds or
other obligations of the Association, monies from this fund shall
not be transferred or used for any purpose other than capital
improvements for raw water supplies, water treatment facilities,
water transmission mains, storage facilities, pumping facilities,
distribution lines, and related facilities required to provide new
connections by new customers and for payment of debt service on
public obligations issued to finance any such capital improvements.
Capital improvements which are designed to benefit existing
25
FLT.:344 ftGEi1 ;6
customers of the Association shall not be paid for with monies from
this fund.
(E) All system development
system shall be segregated from
Association and placed into a special fund. Except as otherwise
charges imposed for the sewer
all other funds held by the
provided by the resolution authorizing the
other obligations of the Association, monies from this fund shall
not be transferred or used for any purpose other than capital
improvements for sewage treatment and disposal facilities, sewage
transmission facilities, reclaimed water treatment facilities,
reclaimed water distribution facilities and related facilities
required to provide new connections by new customers and for
payment of debt service on public obligations issued to finance any
such capital improvements. Capital improvements which are designed
to benefit existing customers of the Association shall not be paid
for with monies from this fund.
(F) All system development charges shall be reviewed; at least
every three years by the Association to determine that the charges
are equitable and proportionate to the current estimate' of costs
for providing the capital improvements for which the charges are
imposed. The Association may change or revise the schedule of
system development charges upon compliance with the notice and
hearing requirements set forth for the adoption of rates, fees and
other charges.
(G) The Association, in its discretion, may permit the owners
of existing structures which connect to the Association's system
issuance of bonds or
26
Frx.3 r-!cf115
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 sucli bonds or
other obligations that it maintain net revenues, together with
special assessment proceeds and other revenues derived by the
Association, exclusive of system development charges, equal to at
least 100 percent of the debt service on such bonds or obligations.
SECTION 3.08. REPORTING REQUIREMENT, BOOKS AND RECORDS.
(A) The County or its designee shall have the right to review
all records maintained by the Association on five days' written
notice.
27
I_A :344 flCE1158
(B) An annual audit of the Association's books and records
shall be prepared by an independent Florida certified public
accounting firm in accordance with generally accepted accounting
principles and shall be delivered to the County, at the
Association's expense, within 120 days of the twelve month period
ending the Association's fiscal year. Said audit shall include,
but not be limited to the following elements:
(1) balance sheet;
(2) statement of revenue and expenses segregated by type
of services (water and wastewater); and areas served
(Okeechobee County or Glades County);
(3)
statement of cash flows; and
(4) notes to financial statements.
The Association shall establish and maintain at its own expense
during the term of this franchise, a bookkeeping, accounting and
recordkeeping system to facilitate the preparation of said audit
and shall preserve for at least six years from the date fx-om their
preparation, full, complete, and accurate books, records, and
accounts that have been consistently applied in accordance with
generally accepted accounting principles.
SECTION 3.09. COMPLAINTS.
(A) All service complaints shall be directed to the
Association. The County shall notify the Association of any
complaint communicated to the County. All complaints received by
the Association shall be immediately recorded in the complaint log
maintained by the Association. Complaints shall be resolved within
28
ID
FC,K 344 P' ff 11
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 (inclining 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
regulations, rates and fees
as to complaint procedures, rules and
charged or imposed by the Association.
The County may from time to time contact customers; directly
regarding the quality of service and the disposition of complaints.
SECTION 3.10. PERFORMANCE MONITORING.
(A) In order to fully implement the provisions of this
Franchise Agreement, a panel for the review of the quality of
services provided shall be created to consist of three members, one
member representing the Association, one member representing the
County, and a third independent member chosen by the previously
named two members. It shall be the function of this committee to
review, report and make recommendations to the County and the
29
:3 44 i Act 1160
Association, not less often than annually, regarding the quality
of services provided for herein. For the purpose of this function,
"service" shall be defined as the performance of the duties, tasks
and obligations of the Association enumerated in this Franchise
Agreement performance of such other duties, tasks and obligations
as are generally and reasonably regarded as incident to the safe
and satisfactory discharge of responsibilities in the water or
wastewater utility industry.
SECTION 3.11. MANDATORY USE OF ASSOCIATION FACILITIES AND
SERVICES. All lands, buildings, premises, persons, firms and
corporations or other users within the Service Area, shall use the
water and sewer facilities of the Association, or any other service
provider authorized by the County, when and where ever such
services and facilities become available; and for such purposes,
the Association shall be entitled to seek injunctive relief, either
mandatory or prohibitory, to enforce the use of Association
facilities or services.
SECTION 3.12. 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;
30
r'llrf 344 F!CE11f1
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 plan periodically, but
not less often than every three years.
(B) Treatment facility construction or expansion or line
extension policies adopted by the Association shall be in
furtherance of land development regulations adopted by the County.
(C) The construction or expansion of any portion of the
Association's systems, or major alterations which affect the
quantity or quality of the level of service of the Association's
systems, which is undertaken or initiated by the Association shall
be consistent with the applicable local government comprehensive
plan of the County adopted pursuant to Chapter 163, Part II,
Florida Statutes; provided, however, that this obligation shall not
be construed to allow a local government comprehensive plan to
require the Association to construct, expand, or perform a major
31
F 344 FLCE11F62
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
32
�r+
[TA :344 P'GE 1163
regulating the use of its streets, sidewalks, alleys, rights -of-
way and easements. The Association shall abide by all such
ordinances relative to its activities.
(D) This Franchise Agreement is not and shall not be
construed as a development agreement pursuant to the Florida Local
Government Development Agreement Act, Sections 163.3220- 163.3243,
Florida Statutes.
33
ec •J 44 f�!tf 11 4
Qc�x •� '
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
34
tr :344 PrFii €3
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, nonappealdDLe
judgment to be the result of the negligence of the County shall be
excluded from the Contractor's duty to indemnify the County, but
only to the extent of the negligence of the County. For the
purpose of this section, the. term "County" shall be deemed to
include the County Board of Commissioners and its agents, employees
and affiliates. For purposes of this indemnification, "claims"
shall mean and include all obligations, actual and consequential
damages and costs reasonably incurred
against the County, including, but
accountants', attorneys' and expert
in the defense of any claim
not limited to reasonable
witness fees and costs of
investigation and proof of facts, court costs, other
litigation
expenses, and travel and living expenses. The County shall have
the right to defend such claim against it in any such manner as the
County deems appropriate or desirable in its sole discretion. The
indemnity shall continue in full force and effect subsequent to and
not withstanding the expiration or termination of the 'franchise
granted herein.
SECTION 4.02. CHANGE OF LAW. Changes in law in the future,
including, but not limited, legislative, judicial or administrative
changes, which mandate certain actions or programs for local
governments or water and sewer utility providers may require
changes or modifications in some of the terms or conditions or
obligations under the franchise granted herein. Nothing contained
35
.,K.344FrE.'HA)
in this Franchise Agreement shall require any party to perform any
act or function contrary to law.
SECTION 4.03. AMENDMENTS AND WAIVERS. No amendment,
supplement, modification or waiver of the Franchise Agreement
granted herein shall be binding unless executed in writing by the
County and the Association. No waiver of any of the provisions of
this Ordinance shall be deemed or constitute a waiver of other
provisions of this Ordinance, whether or not similar, unless
otherwise expressly provided. Each such amendment, supplement,
modification or waiver of this Ordinance shall be filed with the
Clerk of the Circuit Court of Okeechobee County.
SECTION 4.04. SEVERABILITY. The provisions of this Ordinance
are severable. If any section, subsection, sentence, clause or
provision is held invalid by any court of competent jurisdiction,
the remaining provisions of this Ordinance shall not be affected
thereby; except that if the County finds the invalidated portion
to be an essential part of this franchise the County may declare
this franchise terminated.
SECTION 4.05. ALTERNATIVE METHOD. This Ordinance shall be
deemed to provide an additional and alternative method for the
doing of the things authorized hereby and shall be regarded as
supplemental and additional to powers conferred by other laws, and
shall not be regarded as in derogation of any powers now existing
or which may hereafter come into existence. This Ordinance, being
necessary for the welfare of the inhabitants of the County, shall
be liberally construed to effect the purposes hereof.
36
e, :344 PycEii €) i
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 _
OL /day of April, 1993.
(SEAL)
ATTEST:
"e-1e
Clerk
37
BOARD OF COUNTY COMMISSIONERS
OKEECHOBEE COUNTY, FLORIDA
r «cf11CS
APPENDIX A
FORM OF ACCEPTANCE
Ire. .344 pltEl 1G9
ACCEPTANCE
Tliis Acceptance is made and entered into this c•PiG day of
e/L(L , 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 S 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 and conditions contained
in the Ordinance. Said ordinance (adopted as Okeechobee County
Ordinance No. 93 -_) is incorporated herein by reference:
Further, that the Association by its execution of this
Acceptance hereby agrees, for itself and its successors and
assigns, to accept all of the rights and privileges granted by the
Ordinance and be.bound by all the obligations thereunder as a non-
exclusive franchisee of the County.
This Acceptance shall become effective upon enactment of the
Ordinance by the County and shall run with the land and property
of the Association, its successors and assigns.
IN WITNESS WHEREOF, the Association has caused these presents
to executed the date and year first above written.
zi4reic a
Witness
Witness
' A -1
OKEECHOBEE BEACH ASSOCIATION
WATER, INC., a Florida
corpora t�ion
is - -r
By:
President
b ix :344 ?f 1170
STATE OF FLORIDA
COUNTY OF OKEECHOBEE
The foregoing Acceptance was acknowledged
/4" , who is personally known to
the Okeechobee Beach Water Association,
corporation, on behalf of the corporation.
WITNESS my hand and Official Seal this
1993.
B. CONNER
MY COMMISSION t CC 282009
.. EXPIRES: Fsbnwry 28, 1987
'.f .......... Bonded Tin Notary Public Undermttere
before me by L6ZfD
me, as President of
Inc., a Florida
04 day of
ignature 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 ordinance No.
93- , on this . .Z9 day of /9/7k)/ , 1993.
(SEAL)
ATTEST:
Rc[K :344 roc €1171
APPENDIX B
SERVICE AREA
F«x 344 ffCf11
SERVICE AREA
Beginning at the Tnwnchip line between T37S and -MRS 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 I- Ioover Dyke Road to Lake Okeechobee, thence northeast and
south along Lake Okeechobee shore line to the Martin County line, thence north along the
Martin County line to the point of beginning.
1
LESS AND EXCEPT those lands lying 100 feet on each side of U.S. I- iighway 441 from the
Okeechobee City limits south to the intersection of State Road 78 and those parcels along
U.S. Ilighway 441 being served by the City of Okeechobee as of the effective date of this
Ordinance.
ALSO LESS AND EXCEPT the following subdivisions: Ousley Estates, recorded in Plat
Book 5, Pages 36 and 37, and Palm Village Ranch, recorded in Plat Book 6, pages 34 and
35, Public Records of Okeechobee County, Florida.
fir .X :344 PAGE 11 (,3
RESOLUTION OF THE BOARD OF DIRECTORS OF
OKEECHOBEE BEACH WATER ASSOCIATION,INC.
APPROVING A WATER AND SEWER FRANCHISE
AGREEMENT WITH OKEECHOBEE COUNTY
BE IT KNOWN, that at a special meeting of the Board of Directors of Okeechobee Beach
Water Association, Inc. (' "the Association ") held on April 26, 1993, a quorum being present,
it was resolved by Board of Directors, upon majority vote of directors present:
RESOLVED, that Okeechobee Beach Water Association, Inc. shall enter into a
franchise agreement with Okeechobee County in the form attached hereto.
IT IS FURTHER RESOLVED, that the franchise agreement with Okeechobee
County, shall executed by the President and Secretary of the Association.
Dated this day of April, 1993
OKEECHOBEE BEACH j '1"1✓It SSOCIATION,
By T'
LELAND PEARCE, PRESIDENT
Verna Gabrie , Secretary
dd\m isc \corresp \obwa- bdd.res
G7
Er_.0 44 lGf 11 14
RESOLUTION OF THE MEMBERSHIP OF
OKEECHOBEE BEACH WATER ASSOCIATION,INC.
APPROVING A WATER AND SEWER FRANCHISE AGREEMENT
- • UNTY WHICH INCLUDES A PROVISION
FOR THE SALE FOR THE SALE OF AL
II •
•
BE IT KNOWN, that at a special meeting of the members of Okeechobee Beach Water
Association, Inc. ("the Association") held on April 26, 1993, after proper notice, a quorum
being present, it was resolved by membership, upon majority vote of members present:
RESOLVED, that the membership of Okeechobee Beach Water Association, Inc.
approves the Association entering into a franchise agreement with Okeechobee
County which will contain a provision allowing Okeechobee County to purchase all
of the assets of the Association at some time in the future.
IT IS FURTHER RESOLVED, that the Board of Directors of the Association shall
take the necessary steps to finalize a franchise agreement with Okeechobee County,
which agreement is to be executed by the President and Secretary of the Association. a
Dated this 4- day of April, 1993
JVIT ST:
el-11a Gabriel, Secretary
OKEECHOBEE BEACH WATER SOCIATION,
By Y —`` ✓/j /'' (`��i� ` C��'f'�- cam'
LELAND PEARCE, PRESIDENT
ddbn isc \co rresr \obwa -ass.s al
"j"
IN THE CIRCUIT,COURT FOR OKEECHOBEE COUNTY, FLORIDA
OKEECHOBEE BEACH WATER
ASSOCIATION, INC., CASE NO: 93 -555 CA
Plaintiff,
vs.
CITY OF OKEECHOBEE', FLORIDA,
Defendant.
MOTION FOR PARTIAL SUMMARY JUDGMENT
Plaintiff, OKEECHOBEE BEACH WATER ASSOCIATION, INC. ( "OBWA "), moves
the Court for a partial summary judgment against Defendant CITY OF OKEECHOBEE
( "CITY ") as to certain issues raised in the pleadings and says:
PRELIMINARY MA'TTERS
1. OBWA has filed a declaratory action to determine its right to serve potable
water to an area of southern Okeechobee County based in part on contractual rights under
an existing contract with CI'T'Y ( "the Contract "), and on statutory rights under Chapter 180,
Florida Statutes ( "Chapter 180 "). CITY has also filed a declaratory action counterclaim
seeking a determination of CITY's right to serve potable water to an area of southern
Okeechobee County which overlaps OBWA's service area.
2. At a minimum, both declaratory actions require the initial determination of
OBWA's right to serve potable water to existing OBWA members by building a water
treatment plant. For purposes of this motion, "existing OBWA members" shall refer to
those members of OBWA who have an active service agreement with OBWA as of
November 1, 1993, to serve a parcel of land within the area of dispute between OBWA and
CITY.
3. The other issues raised in the pleadings involve future growth, in terms of
customers or members, by each system, which are more complex issues than the underlying
5\013 \CITY\M- PAR- SM..TMT 1
legal issue involving OBWA's right to serve exis OBWA members by building a water
treatment plant.
4. The only question addressed by this motion for partial summary judgment. is
the purely legal issue concerning OBWA's right to serve existing OBWA menrber4y
building a water treatment plant
5.
Consideration of this motion will promote judicial economy by adjudicating
a threshold question, and avoiding wasteful efforts in pursuing more complex litigation
issu es.
FACTUAL ALLEGATIONS
OBWA states there is no genuine dispute about the following material facts
(references to the record are stated within [ J; "Answer" refers to CITY's answer to O.BWA's
amended complaint):
6. OBWA, a nonprofit corporation, was formed to supply its members with
potable water. Since 1965, OBWA has owned and operated a system of pipes, tanks, valves,
meters and pumps in southern Okeechobee County and has supplied its members with
potable water. [Par. 5 of Pearce Affidavit]
7. CITY is a municipality as defined by Chapter 180. [Par. 1 of Answer]
e 8. Since 1965, BWA has been obtaining a supply of water from CITY under a
series of bulk water wholesale agreements. Copies of the series of contracts between OBWA
and CITY are attached in chronological order to OBWA's Amended Complaint For
Declaratory Judgment as Exhibits A, B, C and D. The present bulk water wholesale
agreement (the Contract) expires on September 30, 1994. [Par. 1 of Answer]
9. OBWA has advised CITY that it does not intend to renew its contract to
purchase bulk water from CITY. [Par. 1 of Answer]
10. OBWA intends and has engineering plans to build a water treatment plant to
continue supplying its members with potable water after the Contract expires. OBWA has
obtained financing for the project, purchased land for the well field, and has an option to
purchase land for the water treatment plant. Originally, the water treatment plant was
scheduled to begin operation October 1, 1994, however, OBWA has experienced delays in
the permitting process with the South Florida Water Management District, as more fully
5 \O I3 \CI't'Y\M- PAR -S M.J MT
2
explained below. [Part's 5 ;12 of Fortner AffidavitJ
11. CITY has stated publicly that it does not oppose OBWA building a water
treatment plant to serve exist:iaig OBWA members, and CITY has voted to supply OBWA
with water at a fair price even after the Contract expires, until construction of OBWA's
water treatment plant is completed. [Par. 1 of Answer] 641- �``
c /,
12. Paragraph 7 of the Contract provides:
7. It is further agreed between the parties hereto that the Association
shall serve all users in the areas south of the boundary line that is identified
between the City and the Association per legal description attached hereto
and made a part hereof as Exhibit A, except for its users presently served by
the City. It is specifically agreed that the City shall not serve any new water
users in this area unless such potential user has been refused service by the
Association, and neither shall the Association provide service to any user
north of the boundary unless it is mutually agreed upon by the City and the
Association.
[Exhibit D attached to Amended Complaint]
A graphic representation of OBWA's service area under the Contract is highlighted in blue
on Exhibit A attached to this motion. r/
t�
2,13. OBWA has relied upon the established separate consumer territories of OBWA
and CITY in making decisions about capital improvements to OBWA's system. [Par. 6 of
Pearce Affidavit]
14. OBWA has applied for a water consumptive use permit from the South Florida
Water Management District ( "the Water Management District ") to serve existing OBWA
members and future potable water users in the area described in Exhibit A attached to this
motion. [Par. 5 of Answer; Par. 10 of Fortner AffidavitJ For purposes of this notion, the
scope of the application for a water consumptive use permit is limited to persons or entities
—7
scope who are OBWA members.
15. In 1976, CITY sought. a modification of an existing water consumptive use
permit issued to CITY by the Water Management District. In applying for the modification,
CRAA CITY described a service area which included, in part, OBWA's service area. [Par. 11 of
Fortner Affidavit] A graphic representation of the service area described by CITY in
applying for the modification is highlighted in yellow on Exhibit B attached hereto.
16. In June 1983, CITY enacted Ordinance No. 488 purporting to claim a certain
portion of Okeechobee County as a zone in which CITY is authorized to provide potable
5 \0I3 \CITY\M -PAR- SM.JMT 3
water service pursuant -to chapter 180. A copy of Ordinance No. 488 is attached hereto as
Exhibit C. A graphic representation of the entire zone is highlighted in pink on Exhibit 1)
attached hereto. The zone includes a portion of the area in southern Okeechobee County
presently served by OBWA.
17. OBWA has been advised by the Water Management District that there is an
overla between the service area described by OBWA in its application for a water
consumptive use permi • he service ce area described by CITY in the water consumptive
use permit already issued by the Water Management District. The Water Management
District contends that it does not determine legal entitlement to service areas by competing
utilities, and that when it appears that an applicant for a consumptive use permit is
describing a service area already described in an existing permit, the applicant must
demonstrate tavcrlap has been resolved with the existing permittee, the applicant has
legal control over the overlap area. As to the overlap area in this case, the Water
Management District has advised OBWA that the Water Management District will not issue
a water consumptive use permit to OBWA until OBWA can establish that the overlap has
been resolved with CITY or that OBWA has legal control over the overlap area. [Par. 12
of Fortner Affidavit] A graphic representation of the overlap area is made in Exhibit E
attached hereto (the blue striped area between the blue and pink lines).
18. OBWA and CITY have been unable agree what will be OBWA's service area
when OBWA builds a water treatment plant. [Par. 18 of Fortner Affidavit]
19. Each member of OBWA signs a potable water service agreement with OBWA.
A meter is issued for each service agreement. A service agreement is always signed by at
least one of the owners of the parcel being served by the meter. Frequently all of the co-
owners of the parcel sign the service agreement. [Par. 19 of Fortner Affidavit]
20. Every parcel of land served by OBWA is owned by a member of OBWA. Each
parcel served by OBWA has a meter owned by OBWA installed to serve the owner or
owners with potable water. Each meter has been assigned a customer identification number
which stays with the parcel, regardless of a change of ownership of the parcel served. [Par.
20 of Fortner Affidavit]
21. As of November 1, 1993, OBWA has 2,043 meters installed and issued to
members who own parcels of land within the overlap area. [Par. 21 of Fortner Affidavit]
5 \013 \CI'I'Y\M- I'AR- SM.JMT 4
$22. The welll.fielc, water treatment plant and transmission lines OBWA has plans
to construct will .e within the corporate limits of CITY, ®in CITY's consumer territory.
[Par. 15 of Fortner Affidavit]
`23. CITY has not constructed any water system facilities, similar to the ones
OBWA intends to construct, immediately adjacent to the property upon which OBWA
intends to construct facilities. [Par. .16 of Fortner Affidavit[
)24. The facilities OBWA intends to construct will not compete with CITY's
existing consumer territory. [Par. 17 of Fortner Affidavit] Lk) Ax- -
SUBSTANTIAL MATTERS OF LAW TO BE ARGUED
AND GROUNDS FOR THE MOTION
The substantial matters of law to be argued and grounds for this motion are:
25. OBWA is a private company duly authorized under the laws of the state to
operate a "water works sysicW" as that term is used in Chapter 180.
26. OBWA currently operates a water distribution system serving in excess of 2,000
members in the overlap area.
27. A water distribution system is a "water works system" within the meaning of
Chapter 180.
28. OBWA is not he agent of CITY in serving potable water to existing OBWA
members. ,Ageltcy is a contractual relationship. The Contract does not contain any
language creating an agency relationship wherein CITY is the principal and OBWA is the
���nJ�-�`I agent.
N" '`' 29. The Contract does not contain any ambiguous language which requires the
introduction of extrinsic evidence to determine whether the Contract was intended to create
an agency relationship between CITY and OBWA.
30. OBWA is not a franchisee of CITY in serving potable water to existing OBWA
Z1 members. A franchise is a contractual relationship. The Contract does not contain any
{ Qc��
language creating a franchise relationship wherein CITY is the franchisor and OBWA is the
',"
franchisee.
31. The Contract does not contain any ambiguous language which requires the
introduction of extrinsic evidence to determine whether the Contract was intended to create
5 \OI3 \CITY\M- PAR - SM.JMT
5
a franchise relationship between CITY and OBWA.
it tt
32. The fact that OBWA is a bulk water customer of CITY does not create an
agency or franchise relationship between OBWA and CITY.
33. Assuming, arguendo, OBWA is a franchisee of CITY, CITY has no power to
restrict or encroach upon OBWA's established property rights under the franchise to serve
existing OBWA members.
34. From OBWA's inception in 1965, OBWA and CITY have maintained separate
b1/41,0,5j consumer territories. Since 1970, OBWA and CITY have memorialized (with minor
adjustments consented to by OBWA) the boundaries of their respective consumer territories.
rr
35. OBWA has relied upon the established separate consumer territories of OBWA
and CITY in making decisions about capital improvements to OBWA's system.
36. Pursuant to express terms of the Contract, OBWA has rights superior to any
rights of CITY to serve the parcels of land owned by existing OBWA members which have
a meter owned by OBWA installed thereon.
37. OBWA, as a private company within the meaning of Chapter 180, has a right
to build a water treatment plant.
38. CITY has stated publicly that it has no objection to OBWA building a water
treatment plant to serve existing OBWA members.
39. As interpreted by Florida case law, the last sentence of Section 180.06, Florida
Statutes, which prohibits construction of similar utilities in the same or immediately adjacent
territories without consent, was enacted in order to prevent wasteful duplicate capital
investments by competing facilities in the same consumer territories. The purpose of the
statutory provision was to prohibit direct encroachment by one utility provider into an
operating area already served by another utility. As a result, this statutory provision does_
not prohibit OBWA from constructing a water treatment plant to serve existing OBWA
members because OBWA and CI'T'Y have separate consumer territories,4nd because CITY
has consented to OBWA building a water treatment plant to serve existing OBWA members)
Moreover, CITY does not have any facilities constructed, similar to the ones OBWA intends
to construct, immediately adjacent to the property OBWA intends to construct facilities
upon. Furthermore, the facilities OBWA intends to construct to serve existing OBWA
members will not compete with CITY's consumer territory.
5 \013 \CCI1'\M - PAR - SM.JMT 6
40. The adoption of Ordinance No. 488 by CITY did not create a mechanism by
which CITY can prohibit a private company front building facilities to produce potable
water. Chapter 180 allows a municipality to create a zone for mandatory hookup to a
municipal sewerage system only. Nothing in Chapter 180 authorizes a municipality to create
a zone for mandatory hookup to a municipal water system. Thus, the adoption of
Ordinance No. 488 does not affect OBWA's right to build a water treatment plant to serve
existing OBWA members. Furthermore, CITY has no right to interfere with OBWA's
preexisting service area and preexisting right to serve existing OBWA members by
subsequently annexin OBWA's service area into CITY's service area through the adoption
of Ordinance No. 488.
41. The fact that CITY produces potable water, while OBWA currently only
distributes potable water, does not give CITY any superior right to serve • existing OBWA
members. One does not have to produce potable water to be able to serve it. One simply
has to own a supply of potable water to serve it. CITY does not own the potable water
served to existing OBWA members. OBWA owns the potable water it currently serves its
members. The means by which OBWA obtains the water it serves existing OBWA members
is legally irrelevant. OBWA has applied to the Water Management District for a permit
which will allow OBWA to draw the water out of the ground to produce potable water to
serve existing OBWA members. There is no statutory or contractual provision which limits
OBWA to being a bulk water purchaser. OBWA has the right to become a potable water
producer to serve existing OBWA members.
AFFIRMATIVE DEFENSES
This motion addresses each affirmative defense raised by CITY as follows:
First Affirmative Defense:
42. CITY raises the affirmative defense that OBWA is not a private company under
Chapter 180. However, the record establishes that OBWA is a private company as defined
by Section 180.05, Florida Statutes, and that OBWA owns and operates a water works
system.
Second and Third Affirmative Defenses:
43. CITY pleads in its second and third affirmative defenses that a declaratory
5 \013 \CI'I'Y\M -I AR- SM.JMT 7
action is not needed for OB,,WA to continue operating a water distribution system. however,
CITY incorrectly assumes OBWA has no right to become a potable water producer.
Fourth Affirmative Defense:
44. CITY pleads in its fourth affirmative defense that CITY did not need to obtain
the consent of OBWA in taking certain actions because OBWA does not own or operate a
system similar to CITY. CITY's fourth affirmative defense does not apply to the question
raised in this motion, wherein OBWA is seeking a determination of its right to serve existing
OBWA members.
Fifth Affirmative Defense:
45. In pleading its fifth affirmative defense, CITY admits that OBWA has not been,
and is not operating in a territory immediately.adjacent to CITY, and for that reason, CI'T'Y
did not need the consent of OBWA in taking certain actions. The same reasoning applies
to OBWA's position that construction of a water treatment plant and well field to serve
existing OBWA members will not violate the last sentence of Section 180.06, Florida
Statutes, and because OBWA and CITY have separate consumer territories.
Sixth Affirmative Defense:
46. In its sixth affirmative defense, CITY pleads that OBWA cannot serve its
members absent the purchase of water from CITY. CITY's sixth affirmative defense
incorrectly assumes or asserts that OBWA has no right to become a potable water producer.
Seventh Affirmative Defense:
47. In its seventh affirmative defense, CITY pleads that OBWA must obtain the
consent of CITY to construct a system, work, project or utility within CITY's Chapter 180
service area. OBWA does not need to obtain the consent of CITY to construct its well field
or water treatment plant to serve existing OBWA members because CITY has admitted that
OBWA is not operating in a territory immediately adjacent to CITY and because OBWA and
CITY have separate consumer territories.
Eighth Affirmative Defense:
48. In its eighth affirmative defense, CITY pleads that OBWA is guilty of laches in
not opposing the adoption of Ordinance No. 488. The theory of laches does not apply to
one's right to oppose the validity of a legislative enactment. Furthermore, Chapter 180
grants no authority for a municipality to create a protected zone for the supply of potable
5 \013 \CIrY\M - PAR - SM.JMT 8
water.
Ninth Affirmative Defense:
49. In its ninth affirmative defense, CITY claims OBWA is the agent or franchisee
of CITY in serving potable water to existing OBWA members. However, the plain and
unambiguous language of the Contract establishes there is no contractual agreement
between the parties creating an agency or franchise relationship.
Tenth Affirmative Defense:
50. In its tenth affirmative defense, CITY pleads that OBWA has no superior legal
right to either a service area or to serve existing OBWA members by virtue of the Contract.
CITY's tenth affirmative defense completely ignores the express terms of Paragraph 7 of the
Contract. The CITY's right to serve new potable water users within OBWA's service area
has no bearing on the issue of OBWA's right to serve existing OBWA members.
Eleventh Affirmative Defense:
51. CITY pleads in its eleventh affirmative defense that OBWA has no superior
legal right to a service area or to serve existing OBWA members by virtue of the franchise
granted by Defendant OKEECIOBEE COUNTY. As previously stated, OBWA does not
base any of the grounds for this motion on the franchise granted by Defendant
OKEECHOBEE COUNTY.
As to all Affirmative Defenses:
52. The affirmative defenses raised by CITY do not apply to the issue of OBWA's
right to serve existing OBWA members by building a water plant because CITY has stated
publicly that it has no objection to OBWA building a water plant to serve existing OBWA
members.
WHEREFORE, OBWA moves for a partial summary judgment declaring:
A. OBWA is a private company within the meaning of Chapter 180.
B. OBWA is not the agent or franchisee of CITY in serving potable water to
existing OBWA members.
C. Under Chapter 180, OBWA has the right to build a well field and water
treatment plant to serve existing OBWA members.
D. The adoption of Ordinance No. 488 by CITY does not affect OBWA's right to
build a well field and water treatment plant to serve existing OBWA members.
5 \OI3 \CI'I'Y\M- PAR -SM.J MT
9
E. "Existing OBWA members" are those members of OBWA as of November 1,
1993, as listed in Exhibit J attached to the affidavit of L. C. FORTNER, JR. in support of
this motion. For purposes of this motion, the service area for existing OBWA members
includes those parcels of land owned by existing OBWA members which have a meter
owned by OBWA installed thereon, as depicted in Exhibit K attached to the affidavit of L.
C. FORTNER, JR, in support of this motion.
I HEREBY CERTIFY that a true copy of the foregoing has been furnished to John
R. Cook, Attorney for Defendant CITY, by hand delivery on December. ', 1993, and to
John D. Cassels, Jr., Attorney for Defendant COUNTY, by hand delivery on December 3v,
1993.
5 \013 \CITY\M - PAR -SM.J MT
BURTON C. CONNER
BURTON C. CONNER, P.A.
Florida Bar No. 0254551
301 Northwest Fifth Street
Okeechobee, Florida 34972
813 - 467 -8800
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EXHIBIT A
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OVERALL SERVICE AREA BOUNDARY & AREA SERVED
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EXHIBIT B
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CITY OF OKEECHOBEE SERVICE AREA
FIGURE 1
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ORDINANCE NO. 488
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AN ORDINANCE AMENDING THE ORDINANCE CODE OF THE CITY OF
OKEECHOBEE, FLORIDA; AMENDING CHAPTER 18, ARTICLE I PRO-
VIDING FOR A NEW SECTION 18 -4 RECOGNIZING THE ZONE OF
INFLUENCE AS BEING THE OKEECHOBEE 201 FACILITIES PLANNING
AREA; AUTHORIZING PROJECTS; AUTHORIZING RULES AND REGULA-
TIONS; PROVIDING AN EFFECTIVE DATE.
NOW, THEREFORE, BE IT ORDAINED BY TIIE CITY COUNCIL'OF THE CITY OF OKEECHOBEE, FLORIDA
AS FOLLOWS:
SECTION I: Chapter 18, Article 1 is hereby amended to add Seciton 18 -4 which shall
read as follows:
CHAPTER 18
WATER, SEWERS AND SEWAGE DISPOSAL
ARTICLE I IN GENERAL
Section 18 -4. Okeechobee 201 facilities planning area - purposes allowed- authority
to establish rules and regulations
It is hereby declared the Okeechobee 201 facilities planning area
conforms in all respects with the zone or area requirements set
out in Chapter 180.02, sub - paragraph 3, Florida Statutes, and the
City is authorized to conduct within this area any of the purposes
contained in Chapter 180.06, sub - paragraph 1 through 9 and for the
accomplishment of same, is authorized to establish reasonable rules
and regulations relating to those purposes.
Legal description of the 2.01. facilities planning area is as follows:
Being all of Sections 27, 28, 33 and 34, Township 36 South, Range 35 East AND all
of Sections 3 through 30, and Sections 32 through 36, Township 37 South, Range 35
East AND the West of Section 29, all of Sections 30 and 31 and the Northwest '-,
of Section 32, Township 37 South, Range 36 East, AND the North } of Section 6,
Township 38 South, Range 36 East lying North of Lake Okeechobee AND all of Sections
3, 4 and the North 1 of 5, Township 38 South, Range 35 East lying North of Lake
Okeechobee.
SECTION II: This Ordinance shall take effect upon its adoption.
Introduced on first; reading and set for public hearing this 6th day of
June , 1983.
Introduced and passed on second and final reading this 20th day of Jrine
1983.
ATTEST:
City Clerk
Motion For Partial Sum. Jmt.
EXHIBIT C
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Motion For Partial Sum. Jmt.
EXHIBIT D
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CITY OF OKEECIIOBEE SERVICE AREA
FIGURE; 1
10
AFFIDAVIT OF WILLIAM REESE IN SUPPORT
OF DEFENDANT'S MOTION FOR CONTINUANCE / 4 c p, t 7i /�'Iv 7�• '�
STATE OF FLORIDA:
COUNTY OF OKEECHOBEE:
BEFORE ME this day personally appeared, WILLIAM REESE
(Affiant), who being duly sworn, deposes and says as follows:
1. Affiant is over 18 years of age and is competent to
affirm statements.
2. Affiant has personal knowledge of the facts stated
herein.
3. Affiant is and has been employed by and
as such is the engineer for the City of Okeechobee
responsible for the planning and design of the City's
water treatment system.
4. As the engineer for the City, Affiant is familiar with
the areas within and adjacent to the City that are served
by the City's water system. Affiant is also familiar
with some of the properties which have been purported by
the Okeechobee Beach Water Association, Inc. ( "OBWA ") to
be served by its system.
5. Affiant has learned from the Superintendent of OBWA
that at least three of the properties listed by OBWA as
"existing members" are, in fact, not receiving water from
OBWA for either residential, commercial or any other type
of use at the property.
6. Specifically, one of the properties listed as an existing
member is the Coker Tract located in Sections 27 and 34,
Township 37S, Range 35E. This tract of over 800( ?) acres
is served by one inch line with a single meter that
runs water into a horse watering trough. Such a line
would be inadequate to provide water service to any
residential or commercial use at this property.
7. A second property is the Roland Trust Parcel. This
parcel consists of over acres of land with a single
mobile home on it which is served by a inch water
line installed by OBWA. Such a water line would be
inadequate to provide water service for any other
residential or commercial uses for this property.
8. A third property is the Oasis Village mobile home park.
This property has a master meter in place which was
installed by OBWA; however, Oasis Village does not
consume water through this meter. Instead, Oasis Village
receives its water from its own well and package water
treatment system.
9. These properties represent only three of the 2,043 meters
represented by OBWA to have been installed for its
existing members as of November 1, 1993. These three
examples raise the distinct possibility that there are
other properties which, while they may have meters and
active service agreements with OBWA, do not, in fact,
receive water service from OBWA. Additional investi-
gation is required to determine whether there are other
instances where "existing OBWA members" do not receive
water service from OBWA.
FURTHER AFFIANT SAYETH NOT.
William Reese
SWORN TO and SUBSCRIBED before me this day of January,
1994, by WILLIAM REESE, who produced a Florida Drivers License as
identification and did not take an oath.
NOTARY PUBLIC, State of Florida
My commission expires:
May 4, 1982
Memorandum
To: David Conlon
From: RCF
Subject: Case law water /sewer mandatory connection
Claude Mullis gave me the following citations on Florida cases involving mandatory
connection of water or sewer or both:
Water only: 6f} -SOT f
HOWE v. C.H. Turner Construction Company :, 3 -2_33
Sewer only: 184 SO. 2nd, Page 707
Combination water and sewer: 34 SO. 2nd 309
27 SO. 2nd 118 !i
It is Claude's opinion the city can force a person to connect with a water system
only where sewer is not available and vice versa.
Please let me know if I can furnish you any additional information.
Richard C. Fellows
RCF /rl
cc: L.C. Fortner, Jr.v/
05/21/93 09:57 $813 763 1031
CASSELS & McCALL 444 JOHN COOK Q002/002
�,�nueuq�gi
Board of Count Commissioners °�? . p"
Y � � s�E�L1� a County Attorney
Okeechobee County �. 101 I.
Cassels �e, ,►�..�_�,
Zee ..'t +'$
May 21, 1993
John Cook, Esquire
City Attorney
202 N.W. 5th Avenue
Okeechobee, FL 34972
Post Office Box 968
209 N.W 4th Avenue
OKEECHOBEE, FLORIDA 34972
(813)467 -6900 • Fax 1763 -1031
Re: Chapter 164 Notification Our File No: 7047
Dear John:
Pursuant to our recent telephone conference, please be advised that the County is in receipt
of your letter to Commissioner Harvey notifying Okeechobee County that the City intends
to file a claim pursuant to Chapter 164, Florida Statutes.
We are in the process of scheduling the meeting required by Section 164.103.
It is my understanding that you are concerned with regard to a thirty day time period from
the Okeechobee Beach Water Franchise adoption date, within which to institute an action
to challenge either the adoption or effect the ordinance. So that this limitation does not
impede our continuing settlement negotiations, the County agrees that Section 164.105,
Florida Statutes will toll the otherwise applicable period within which to appeal or challenge
the ordinance until July 3, 1993.
look forward to continuing our discussion to arrive at a mutually agreeable settlement.
With kindest regards, I am
Very truly yours,
D. CASSELS, J
JDC /_jad
cc: Mr. Christopher Chinault
Mr. Charles Harvey
Susan 83'hiughes Tommy Close Clif Betts, Jr.
District 1 District 2 District 3
Stephen Porter Charles W. Harvey
District 4 District 5 County Administrator
F.S. 1991
BOND FINANCING Ch. 159
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CHAPTER 159
BOND FINANCING
PART I REVENUE BOND ACT OF 1953 (ss. 159.01- 159.19)
C�-3ART 11 FLORIDA INDUSTRIAL DEVELOPMENT FINANCING ACT
(ss. 159.25- 159.431)
PART 111 INDUSTRIAL DEVELOPMENT AUTHORITIES (ss. 159.44- 159.53)
PART IV HOUSING FINANCE AUTHORITIES (ss. 159.601- 159.623)
PART V RESEARCH AND DEVELOPMENT AUTHORITIES (ss. 159.701- 159.7095)
PART VI PRIVATE ACTIVITY BONDS (ss. 159.801- 159.816)
PART VII TAXABLE BONDS (ss. 159.821- 159.8291)
PART 1
REVENUE BOND ACT OF 1953
159.01 Short title.
159.02 Definitions.
159.03 General powers.
159.04 Neither credit nor taxing power pledged.
159.05 Purchase of projects.
159.06 Improvement of projects purchased.
159.07 Construction of projects.
159.08 Revenue bonds.
159.09 Trust agreement.
159.10 Revenues of projects.
159.11 Trust funds.
159.12 Remedies of bondholders and trustee.
159.13 Revenue refunding bonds.
159.14 Alternative method.
159.15 Tax exemption and eligibility as investments.
159.16 Additional pledge of faith and credit.
159.17 Lien of service charges.
159.18 Collection of charges.
159.19 Additional pledge of excise taxes.
159.01 Short title. -This part I of chapter 159 shall
be known and may be cited as the "Revenue Bond Act
of 1953."
History. -s. 1. ch. 28045, 1953,
159.02 Definitions. -As used in this part, the follow-
ing words and terms shall have the following meanings,
unless some other meaning is plainly intended:
(1) The word "municipality" shall mean any city,
town, village or port authority in the state, whether incor-
porated by special act of the Legislature or under the
general laws of the state.
(2) The word "unit" shall mean any county or munici-
pality in the state, now or hereafter created or estab-
ished.
(3) The term "governing body," as applied to a
County, shall mean the board of county commissioners,
and as applied to a municipality, shall mean the council,
Commission or other board or body in which the general
legislative powers of the municipality shall be vested.
(4) The word "project" shall include all property,
rights, easements, and franchises relating thereto and
deemed necessary or convenient for the construction or
acquisition or the operation thereof, and shall embrace
waterworks systems, sewer systems, gas systems,
bridges, causeways, tunnels, incinerator and solid
waste disposal systems, harbor and port facilities, mass
transportation systems, expressways, marinas, civic
auditoriums, sports arenas, parking facilities, and theme
and amusement parks.
(5) A project shall be deemed "self- liquidating" if, in
the judgment of the governing body, the revenues and
earnings thereof and other special funds pledged there-
for as provided in this part, will be sufficient to pay the
cost of maintaining, repairing and operating the project
and to pay the principal and interest of revenue bonds
(as hereinafter defined) which may be issued to pay the
cost of such project or improvements thereof.
(6) The term "revenue bonds" shall mean the obliga-
tions issued by a unit under the provisions of this part
to pay the cost of a self - liquidating project or improve-
ments thereof or combination of one or more projects or
improvements thereof, and payable from the earnings of
such project, and any other special funds authorized to
be pledged as additional security therefor under this
part. Whenever the word "bonds" is used in this part, it
shall be deemed to mean "revenue bonds," unless the
specific term "general obligation bonds" is used.
(7) The word "bridge" and the word "tunnel" shall
include not only the bridge or the tunnel but also all
structures and equipment connected therewith and the
approaches thereto and approach roads.
(8) The word "causeway" shall mean any raised road
or way over and across any marshy ground, swamp,
river, bay or water in the state, the bridges or tunnels
and structures connected therewith, and the
ap roaches k Y aches thereto and approach roads.
The term "waterworks astern: stern_' shall mean and
sha include water supply systems, water distribution
systems and any integral part thereof, whether inside or
outside the unit, and shall include but shall not be limited
to reservoirs, wells, intakes, mains, laterals, aqueducts,
pumping stations, standpipes, filter stations, purification
plants, hydrants, meters, valves and equipment.
psa jgoW aL.5
927
s. 468.526
1992 SUPPLEMENT TO FLORIDA STATUTES 1991 s. 468.548
History. —ss. 8, 17. ch 91 -93; s. 4. ch. 91 -429; s. 132, ch. 92 -149.
'Note. — Repealed effective October 1,2001, by s. 17, ch. 91 -93, and scheduled
for review pursuant to s. 11.61.
468.540 Short title.— Sections 468.540- 468.552
may be cited as the "Water and Wastewater Operators
Certification Act."
History. —s. 2, ch. 92 -75.
468.541 Purpose. —The Legislature finds that the
threat to the public health and the environment from the
operation of water and wastewater treatment plants
mandates that qualified personnel operate these facili-
ties. The sole legislative purpose in enacting ss.
468.540- 468.552 is to ensure that every person who
operates a water or wastewater treatment plant meets
minimum requirements for professional practice. It is the
legislative intent that any person who performs the
duties of an operator and who falls below minimum com-
petency or who otherwise presents a danger to the pub-
lic be prohibited from operating a plant or system in this
state.
History. —s. 2, ch. 92 -75.
468.542 Definitions. —As used in ss. 468.540-
468.552, the term:
(1) "Department" means the Department of Profes-
sional Regulation.
(2) "Domestic wastewater collection system" means
pipelines or conduits, pumping stations, and force mains
and all other structures, devices, appurtenances, and
facilities used for collecting or conducting wastes to an
ultimate point for treatment or disposal.
(3) "Domestic wastewater treatment plant" means
any plant or other works used for the purpose of treat-
ing, stabilizing, or holding domestic wastes.
(4) "Operator" means any person, including the
owner, who is in onsite charge of the actual operation,
supervision, and maintenance of a water treatment plant
or domestic wastewater treatment plant and includes
the person in onsite charge of a shift or period of opera-
tion during any part of the day.
(5) "Public water system" means a community, non -
transient- noncommunity, or noncommunity system for
the provision to the public of piped water for human con-
sumption, provided that such system has at least 15 ser-
vice connections or regularly serves at least 25 individu-
als daily at least 60 days out of the year. The term
includes:
(a) Any collection, treatment, storage, and distribu-
tion facility or facilities under control of the operator of
such system and used primarily in connection with such
system.
(b) Any collection or pretreatment storage facility or
facilities not under control of the operator of such sys-
tem but used primarily in connection with such system.
(6) "Water distribution system" means those compo-
nents of a public water system used in conveying water
for human consumption from the water plant to the con-
sumer's property, including pipelines, conduits, pump-
ing stations, and all other structures, devices, appurte-
nances, and facilities used specifically for such purpose.
(7) "Water treatment plant" means those compo-
nents of a public water system used in collection, treat-
ment, and storage of water for human consumption,
whether or not such components are under the control
of the operator of such system.
History. —s. 2, ch. 92 -75.
1468.543 License required. —A person may not per-
form the duties of an operator of a water treatment plant
or a domestic wastewater treatment plant unless he
holds a current operator's license issued by the depart-
ment. ✓
History. —s. 2, ch. 92 -75.
'Note. — Seclion 6, ch. 92 -75, provides That "Itthis act shall lake effect October 1,
1992, however, operators certified by the Department of Environmental Regulation
as of October 1, 1992 shall be deemed to be licensed by the Department of Profes-
sional Regulation until the expiration of the term of their certification"
1468.544 Utility, requirements by. —A utility may
have more stringent requirements than set by law,
including certification requirements for water distribution
systems and domestic wastewater collection systems
operations, except that a utility may not require a person
licensed under s. 489.105(3) to have any additional
license for work in water distribution systems or domes-
tic wastewater collection systems.
History. —s. 2, ch. 92 -75.
'Note.— Section 6, ch. 92 -75, provides that Tiflis act shall take effect October 1,
1992, however, operators certified by the Department of Environmental Regulation
as of October 1, 1992 shall be deemed to be licensed by the Department of Proles -
sional Regulation until the expiration of the term of their certification."
468.545 Authority to adopt rules. —The department
may adopt rules necessary to carry out the provisions
of ss. 468.540- 468.552.
History. —s. 2, ch. 92 -75.
468.546 Technical Advisory Council for Water and
Domestic Wastewater Operator Certification. —The
secretary of the department may appoint a technical
advisory council as necessary.
History. —s. 2, ch. 92 -75.
468.547 Fees. —The department shall, by rule,
establish fees to be paid for applications and examina-
tion, reexamination, licensing and renewal, renewal of
inactive license, reactivation of inactive license, record -
making, and recordkeeping. The department shall
establish fees adequate to administer and implement ss.
468.540- 468.552.
(1) The application fee may not exceed $100 and is
not refundable.
(2) The renewal fee may not exceed $100 and is not
refundable.
(3) All fees collected pursuant to ss. 468.540-
468.552 must be deposited into the Professional Regula-
tion Trust Fund.
History. —s. 2, ch. 92 -75.
1468.548 Requirements for licensure.-
(1) Any person desiring to be licensed as a water
treatment plant operator or a domestic wastewater treat-
ment plant operator must apply to the department to
take the licensure examination.
(2) The department shall examine any applicant who
meets the criteria established by the department for
licensure, submits a completed application, and remits
the required fee.
(3) The department shall license as an operator any
applicant who has passed the examination under this
section.
1428
S. 46
(4)
crite
requ
a Ire
onsit
(5)
that
to di
prior
Hlst,
'Note
1992. h
as of 0
slonal I
146
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(2)
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(3)
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and
the c
kv
noHh
'Nott is
9
as 19 o1 2, C t
Nonal1
46
(1'
licen
fee.
(2:
licen
tion
(3'
4 ye
appli
(4)
dept
ee's
becc
`,them
HLH
46
(1)
(a)
en
'unlel
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for in
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(c)
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' (e)
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Ch. 190 COMMUNITY DEVELOPMENT DISTRICTS
F.S. 1
(18) "Revenue bonds" means obligations of the dis-
trict which are payable from revenues derived from
sources other than ad valorem taxes on real or tangible
personal property and which do not pledge the property,
credit, or general tax revenue of the district.
(19) "Sewer system" means any plant, system, facil-
ity, or property, and additions, extensions, and improve-
ments thereto at any future time constructed or acquired
as part thereof, useful or necessary or having the pres-
ent capacity for future use in connection with the collec-
tion, treatment, purification, or disposal of sewage,
including, without limitation, industrial wastes resulting
from any process of industry, manufacture, trade, or
business or from the development of any natural
resource. Without limiting the generality of the forego-
ing, the term "sewer system" includes treatment plants,
pumping stations, lift stations, valves, force mains, inter-
cepting sewers, laterals, pressure lines, mains, and all
necessary appurtenances and equipment; all sewer
mains, laterals, and other devices for the reception and
collection of sewage from premises connected there-
with; and all real and personal property and any interest
therein, rights, easements, and franchises of any nature
relating to any such system and necessary or conve-
nient for operation thereof.
(20) "Water management and control facilities" means
any lakes, canals, ditches, reservoirs, dams, levees,
sluiceways, floodways, pumping stations, or any other
works, structures, or facilities for the conservation, con-
trol, development, utilization, and disposal of water, and
any purposes appurtenant, necessary, or incidental
thereto. The term "water management and control facili-
ties" includes all real and personal property and any
interest therein, rights, easements, and franchises of
any nature relating to any such water management and
control facilities or necessary or convenient for the
acquisition, construction, reconstruction, operation, or
maintenance thereof.
(21) "Water system" means any plant, system, facility,
or property and additions, extensions, and improve-
ments thereto at any future time constructed or acquired
as part thereof, useful or necessary or having the pres-
ent capacity for future use in connection with the devel-
opment of sources, treatment, or purification and distri-
bution of water. Without limiting the generality of the
foregoing, the term "water system" includes dams, reser-
voirs, storage, tanks, mains, lines, valves, pumping sta-
tions, laterals, and pipes for the purpose of carrying
water to the premises connected with such system, and
all rights, easements, and franchises of any nature relat-
ing to any such system and necessary or convenient for
the operation thereof.
History. —s. 2, ch. 80 -407; s. 2, ch. 84 -360; s. 10, ch. 87 -363; s. 2, ch. 91 -308.
190.004 Preemption; sole authority. —
(1) This act constitutes the sole authorization for the
future establishment of independent community devel-
opment districts which have any of the specialized func-
tions and powers provided by this act.
(2) This act does not affect any community develop-
ment district or other special district existing on June 29,
1984; and existing community development districts will
continue to be subject to the provisions of chapter 80-
407, Laws of Florida.
(3) The creation of an independent commun
development district as provided in this act is not
development order within the meaning of chapter
All governmental planning, environmental, and la
development laws, regulations, and ordinances apply
all development of the land within a community devel
ment district. Community development districts do
have the power of a local government to adopt a c
prehensive plan, building code, or land developm
code, as those terms are defined in the Local Gove
ment Comprehensive ''planning and Land Developm
Regulation Act. A district shall take no action which
inconsistent with applicable comprehensive plans, or
nances, or regulations of the applicable local gene
purpose government.
History. —s. 2, ch. 80 -407; s. 3, ch. 84 -360; s. 27, ch. 85 -55; s. 34, ch. 87
190.005 Establishment of district —
(1) The exclusive and uniform method for the esta
lishment of a community development district with
size of 1,000 acres or more shall be pursuant to a ru
adopted under chapter 120 by the Florida Land a
Water Adjudicatory Commission, granting a petition f
the establishment of a community development distr.
(a) A petition for the establishment of a commune
development district shall be filed by the petitioner wi
the Florida Land and Water Adjudicatory Commiss
The petition shall contain:
1. A metes and bounds description of the exte
boundaries of the district. Any real property within t
external boundaries of the district which is to
excluded from the district shall be specifical
described, and the last known address of all owners
such real property shall be listed. The petition shall al
address the impact of the proposed district on any r
property within the external boundaries of the distr
which is to be excluded from the district.
2. The written consent to the establishment of
district by the owner or owners of 100 percent of the r
property to be included in the district or documental.
demonstrating that the petitioner has control by deed
trust agreement, contract, or option of 100 percent
the real property to be included in the district.
3. A designation of five persons to be the ini
members of the board of supervisors, who shall serve'
that office until replaced by elected members as pro
vided in s. 190.006.
4. The proposed name of the district.
5. A map of the proposed district showing current
major trunk water mains and sewer interceptors and out
falls if in existence.
6. Based upon available data, the proposed timeta-
ble for construction of the district services and the est.
mated cost of constructing the proposed services
These estimates shall be submitted in good faith but
shall not be binding and may be subject to change.
7. A designation of the future general distribution
location, and extent of public and private uses of lard
proposed for the area within the district by the future
land use plan element of the effective local government
comprehensive plan of which all mandatory elements
have been adopted by the applicable general - purpose
local government in compliance with the Local Govern.
F.S. 1991
fhent Comprehensive
Regulation Act.
8. An economic
*ith the requirement;
(b) Prior to filing 1
1. Pay a filing fe
each municipality the
Otis with, or contain a
external boundaries
2. Submit a cop.
b each municipality 1
us with, or contain
9 external boundar
(c) Such county
Conduct a public he7
the petition to the fac
public hearing shall
the date the petition
Is requested by the p
or municipality. The
public hearing may t
or objection to the gr
Land and Water Adj
ust base any obje
pon the factors spe
municipality may
Objection at the Flc
mmission hearinc
Silty to present relev,
(utIon.
1(d) A local publ
conducted by a hee
Applicable requirem
ttative Procedure Al
*ritten comments o
Specified in parago
an accessible local
rhunity developmer
1toner shall cause a
ill a newspaper at IE
vtieeks immediately
shall give the time
Von of the area tc
description shall in•
to be covered by
Information which
may require. The
that portion of the
Classified advertis
shall be published
Won in the count'
ship in the commu
tipursuasement nt shall app chapt
stleast5days to aw
community is pub
ffected units of g
the general publi
appear at the hea
ments on the pet;
(e) The Florid;
ssion shall cons
Ing, the transcript
1158
Ch. 153
WATER AND SEWER SYSTEMS
CHAPTER 153
WATER AND SEWER SYSTEMS
PART I COUNTY WATER SYSTEM 01
N 5SA SANITARY SEWER FINANCING
(ss. PART II COUNTY WATER AND SEWER DISTRICTS
(ss. 153.50-153.88)
(
PART I
COUNTY WATER ES
SYSTEM AND SANITARY
153.01 Short title.
153.02 Definitions.
153.03 General grant of power.
153.04 Construction supply systems, water
of sewage disposal
system m improvements,
systems, and sewer improvements.
153.05 Water system improvements and sanitary
sewers; special assessments.
153.06 Issuance of bonds.
153.07 General obligation bonds.
153.08 Water and sewer district general obligation
bonds.
153.09 Water revenue bonds and sewer revenue
bonds.
153.091 Combined systems; issuance of bonds.
153.10 Call for bids.
153.11 Water service charges and sewer
charges; revenues.
153.12 Collection charges.
I cation of
Avenues.
153.13 APP
153.14 Trust funds.
153.15 Remedies.
153.16 Water revenue refunding bonds.
153.17 Sewer revenue refunding bonds.
153.18 Exemption of property from taxation.
153.19 Private water supplies.
153.20 Alternative method.
153.01 Short title.—This part shall be Sanitary
may be cited as the "County Water
Sewer Financing Law."
History. —S. 1. ch. 29837, 1955.
153.02 Definitions. —As used in this part the follow-
ing words and terms shall have the following meanings
unless some other meaning is plainly indicated:
several
(1) The word "county" mean under thehauthority
counties of the statoperating 9
granted by this chapter.
(2) The term "county commission" or the word "com-
mission" shall mean the board of county commissioners s granted by ment, the cost of all lands, P apncin charges, interest
t any county operating under the p and franchises acquired, 9
this chapter. prior to and during construction and for 1 year
specifications,
com-
include The term "water system" tanks, mean and shall pletion of construction, cost of plans include any plant, property wells, pipes, reuse, leor having sthe p surveys
facility, or property used or useful or ha� t9 the engineering costs and
services, andfall other expenses
tem, y
present capacity for future use in connection
service
F.S. 1991
obtaining and supplying water for human consumption,
fire protection, irrigation, consumption by business, or
consumption by industry, and, without limiting the gen-
erality of the foregoing definition equipment and shall all nec-
essary appurtenances and eq p
all property, rights, easements and franchises relating to
any such system and deemed necessary or convenient
for the operation thereof. improvements" shall
(4) The term "water system imp
include all water pipes or lines, valves, meters, and other
water- supplying equipment within the county other than
such equipment as constitute a part of the water supply
system and shall embrace water mains and late is for
s
the of carrying of water to the p connected there
the
with and for carrying such water from some part
supply system.
(5) The term "sewage disposal system" shall mean
and shall include any plant, system, facility or property
used or useful or having the present capacity for future
use in connection with the collection, treatment, purifica-
tion or disposal of sewage, and without limiting the gen-
erality of the foregoing definition shall embrace treat-
ment plants, pumping stations, intercepting sewers,
pressure lines, mains, and all necessary appurtenances
and equipment and shall include all property, rights,
easements and franchises relating to any such system
and deemed necessary or convenient for the operation
thereof. improvements" shall include all
(6) The term "sewer
and sewers within the county f a other
ewage disposal sys-
tem, lines as constitute a part
and shall embrace sewer main sand laterals for the e
reception of sewage from p art the
of the
with and for carrying such sewage to some p
sewage disposal system.
(7) The word "facility" shall mean such water sys-
tems, sewage disposal systems, water system improve-
ments and /or sewer improvements or additions thereto
as are defined by this chapter.
(8) The word "cost" as applied to a water supply sys-
tem or extensions or additions thereto or to w supply
improvements or to a sewage die p at or exten-
sions or additions thereto or to sewer imp rovements
shall include the cost of construction or reconstruction,
the cost of all labor, materials, machinery easemenpts
and
868
Ch. 153
rated areas are in extreme
pl r facilities, of such sewage dis-
that it is the intent of
e, construction or
of all labor, materials, machinerY and
posal and water supply equipment, cost of all lands and interest therein, prop-
' coun- ht s easements and franchises of any nature
WATER AND SEWER SYSTEMS
F.S. 1991
and p�
ties of the state to alleviate such conditions in such unin-
corporated areas.
History. —s 2, ch 59 -466.
153.52 Detinitions. —As used in this law, the follow-
ing words and terms shall have the following meanings,
unless some other meaning is plainly intended:
(1) "District" shall mean any unincorporated contigu-
ous area comprising part but not all of the area of any
county created into and existing as a water and sewer
district pursuant and subject to this law, having the
rights, powers and privileges granted in this law.
(2) "Board of county commissioners" shall mean the
board of county commissioners of the county in which
a district created pursuant to this law is located.
(3) "District board" shall mean the board of county
commissioners of any county constituting the governing
body of any district as provided for in this law, and act-
ing for and on behalf of such district as a body corporate
and politic.
(4) "Sewer system" shall mean and shall include any
plant, system, facility or property and additions, exten-
sions and improvements thereto at any future time con-
structed or acquired as part thereof, useful or necessary
or having the present capacity for future use in connec-
tion with the collection treatment purification or dis-
er y, g
whatsoever, financing charges, interest prior to and dur-
ing construction and for not more than 2 years after com-
pletion of the construction or acquisition of such water
system or sewer system or extensions, additions or
improvements thereto, the creation of initial reserve or
debt service ft.dnds, bond discount, cost of plans and
specifications, surveys and estimates of costs and reve-
nues, cost of engineering, financial and legal services,
and all other expenses necessary or incidental in deter-
mining the feasibility or practicability of such construc-
tion, reconstruction or acquisition, administrative
expenses and such other expenses as may be neces-
sary or incidental to financing authorized by this law,
and including reimbursement of the county or any other
person, firm or corporation for any moneys advanced to
a district for any expenses incurred by a district or
county in connection with any of the foregoing items of
cost, or the creation of such district.
(7) "Assessable improvements" shall mean that por-
tion or portions of a sewer system or a water system of
a local nature and of benefit to the premises or lands
served thereby and particularly, without limiting the gen-
erality of the foregoing, with reference to a sewer sys-
tem, shall include, without being limited to, laterals and
mains for the collection and reception of sewage from
remises connected therewith, local or auxiliary pump-
N
posal of sewage of any nature or originating from any ing or lift stations, treatment plants or disposal p an s,
source, including industrial wastes resulting from any and other appurtenant facilities and equipment for the
processes of industry, manufacture, trade or business collection, treatment and disposal of sewage; and with
or from the development of any natural resources; and reference to a water system shall include such mains
without limiting the generality of the foregoing definition and laterals and other distribution facilities, pumping
shall embrace treatment plants, pumping stations, lift stations, and sources of supply as are of benefit to the
stations, valves, force mains, intercepting sewers, later- property served by such water system together with
als, pressure lines, mains and all necessary appurte- incidental equipment and appurtenances necessary
nances and equipment, all sewer mains and laterals for therefor.
the reception and collection of sewage from premises (8) "District clerk" shall mean the clerk of the circuit
connected therewith, and shall include all real and per- court and ex officio clerk of the board of county commis -
sonal property and any interest therein, rights, ease- sioners in and for any county having or establishing a
ments and franchises of any nature whatsoever relating district pursuant to this law, who shall be clerk and treas-
to any such system and necessary or convenient for'the urer of the district.
operation thereof. (9) "Revenue bonds" shall mean bonds or other obli-
(5) "Water system" shall mean and include any plant, gations secured by and payable from the revenues
system, facility or property and additions, extensions derived from rates, fees and charges collected by a dis-
and improvements thereto at any future time con- or s scs or ootheaacilwhich may water system
structed or acquired as part thereof, useful or necessar ewer system,
or having the present capacity for future use in connec- secured by a pledge of the proceeds of special assess-
tion
with the development of sources, treatment or purifi- ments levied against benefited property or by a pledge
cation and distribution of water for domestic or industrial of the full faith and credit of the district, or both.
use l include dams, generality
torage tanks, ma mains, other obligations secured bonds"
he full shall mean bonds or and credit and
shall ivc i es for taxing power of the district and payable from ad valorem
lines, valves, pumping stations, laterals, and pipes 9 P
the purpose uccarrying stem and shall include all real eal con-
nd district, collected on
of rate or amount, in
nected with such system
property hy therein, additionally s by pledge either s
easements and francisesof any nature whatsoever prroceedsofspecial assessments levied against bene-
relating to any such system and necessary or conve- fited property, e system, obothrived from said water sys-
nient for the operation thereof. 11 sewer r "Assessment bonds" shall mean bonds or other
(6) "Cost" as applied to the acquisition and construe- (11) ea le bonds or other
tion of a water system or a sewer system or extensions, obligations secured by and payable
or improvements thereto shall include the cost assessments levied against benefited lands, and which
880
City of Okeechobee
55 S.E. Third Avenue • Okeechobee, Florida 34974 - 2932.813/763 -3372
August 25, 1992
Burton C. Conner
301 N.W. 5th Street
Okeechobee, Florida 34972
Re: Beachwater
Dear Burton:
Enclosed please find Beachwater checks nos.9486; 9860; & 9995
which I have held since mailing, in reference to the additional
costs to produce water billed to your client due to the various
engineering fees for our new system.
Considering our mutual interests concerning the provision of
water service to the entire Okeechobee area, and the City's
continued and ongoing attempt to work with Beachwater towards that
goal, we have determined that we would all be better served by
withdrawing our claim for these costs at this time.
In light of the current developments with Water Management and
the move towards a utility authority, we reiterate our willingness
to meet with you all, the County, or combination thereof at any
time.
Kindest Regard
ohn R. Cook
City Attorney
xc: John Drago
June 3, 1992
OKEECHOBEE BEACH WATER ASSOCIATION, INC.
8840 Highway 78 West
Okeechobee, Florida 34974 -9787
813 - 763 -3793 FAX 813- 467 -4335
Serving Customers in Okeechobee And Glades County
Mr. Ben Loftin
City of Okeechobee
55 S.E. Third Avenue
Okeechobee, Florida 34974 -2932
Dear Mr. Loftin:
I have reviewed the water bills submitted for the months of
January, February, and March, 1992. I have corrected the errors
and recalculated the bills. The totals are as follows:
DATE
TOTAL OF BILL
AS SUBMITTED
BY CITY
January 1992 $31,074.33
TOTAL OF BILL
AS ADJUSTED
BY OBWA
DIFFERENCE
$21,650.59 $ 9,423.74
Meter reading was also corrected, which added 711,000
gallons to the total gallons for January.
February 1992 $27,315.30 $19,472.23
March 1992 $21,518.27
$161034.24
$ 7,843.07
$ 5,484.03
TOTALS $79,907.90 $57,157.06 $22,750.84
Attached for your review is a copy of the corrected pages.
The telephone bills you submitted on May 22, 1992, were the total
paid from the Public Utilities operating fund. According to the
agreement, the total phone bill for the water treatment plant, plus
25% of the phone bill for the Public Utilities office should be
included in the bill calculations. The total phone bills paid from
the Public Utilities operating fund includes phone bills for the
sewer plant, w/s maintenance yard and several others. I called
Lola, in order to save time, and obtained the correct totals to be
used in the calculation of the water bills.
Attached is Check No. 9994 in the amount of $57,157.06, payable to
the City of Okeechobee for that portion of the bills which is
undisputed.
Mr. Ben Loftin
June 3, 1992
Page 2
We are submitting Check No.9995 in the amount of $22,750.84,
payable to John Cook Trust Account and a copy of this letter to
City Attorney John Cook. This check is for the amount of the bills
which is disputed and to be held in escrow by John Cook, until the
City and OBWA reach an agreement on the disputed portions.
Please contact this office if you have any questions concerning the
recalculation of the water bills.
Yours Truly,
)6LL4.c,c-
L. C. Fortner Jr.
Superintendent
LCF /PDV
CC: Burton Conner
John Drago
/John Cook
BURTON C. CONNER, P. A.
ATTORNEY AT LAW
301 NORTHWEST FIFTII STREET
OKEECIIOBEE. FLORIDA 34972
April 9, 1992
John R. Cook, Esquire
202 Northwest Fifth Avenue
Okeechobee, Florida 34972
Re: Water Bills From the City
4
TELEPHONE
18131 467 -8800
FACSIMILE
(813) 467 -6316
Dear John:
The water bills submitted by the City for the months August,
September, October, November, and December, 1991, have been
reviewed by L. C. Fortner. Several errors were found, and the
bills have been recalculated. Attached please find the memo from
o
L. C. with attachments explaining the recalculations. lso
enclosed is OBWA's check in the amount of $88,001.29, payable
the City of Okeechobee for that portion the
trust bills which
in
undisputed, together with a check pay able to your
the amount of $21,123.45 for the portion which is disputed. The
check payable to your trust account is delivered to be held in
escrow by you until City and OBWA reach an agreement on the
disputed portions.
BCC /glc
cc: L. C. Fortner
Enclosures
COOK - CR.APR
Sinc rely,
Burton C. Conner
&LA -
cucA.
BURTON C. CONNER, P.A.
COUNSELOR AT LAW
301 N.W. FIFTH STREET
OKEECHOBEE, FLORIDA 34972
August 30, 1991
1813) 467 -8800
John R. Cook, Esquire
202 Northwest Fifth Avenue
Okeechobee, Florida 34972
Re: OBWA contract with City of Okeechobee
Dear John:
L. C. Fortner has provided me with a letter he received from
Susan Groover this week, a copy of which is attached.
Please notice Paragraph 3. Could you please clarify with
Susan what we discussed at your office and my follow -up letter
dated August 23, 1991.
It seems to me the four of us should meet. Please advise.
Sincerely,
Burton C. Conner
BCC /glc
cc: L. C. Fortner
Enclosure
COOK2- CR.AUG
City of Okeechobee
55 S.E. Third Avenue • Okeechobee, Florida 34974 - 2932.813/763 -3372
August 23, 1991
Mr. L. C. Fortner, Jr., Superintendent
Okeechobee Beach Water Association, Inc.
8840 Highway 78, West
Okeechobee, Florida 34974 -9787
RE: April 1991 Bill
Dear Mr. Fortner:
In response to your letter of June 25, 1991, we offer the
following:
1. Item 4, PU Office Telephone
The telephone bill paid by the Public Utilities office
for April was $500.60. Twenty -five percent of this
amount is $125.15. Enclosed is a copy of that page of
the general ledger showing this line item.
2. Item 6, Repairs and Maintenance
An error was made in developing the bill. The ledger
indicates a check sent to the company, "Chlorinator
Replacement." I was wrong in assuming that this amount
was spent on a new chlorinator. The bills indicate that
the check was for 2 gears, 2 shaft pins, 2 screws, 2
washers, 2 lock washers, 4 shafts, 12 cotter pins and 1
feed screw unit. As you are familiar, parts of this type
are very, expensive. The total cost for these items is
$1401.16, which is included in the total line item of
Repairs and Maintenance.
3. Item 10, Outside Special Services
John Cook met with Burton Connors, and they determined
that these costs are legitimate expenses to be included
in the Beach bill.
If you have any questions, please do not hesitate to call.
Very Truly Yours,
Susan S. Groover, PE
Interim Director of Public Utilities
SSG /be
Enclosures
LAW OFFICES
JOHN R. COOK
202 NW 5TH AVENUE
OKEECHOBEE, FLORIDA 34972
TELEPHONE (813) 467 -0297
FAX (813) 467 -4798
January 22, 1992
Division of Corporations
P. 0. Box 6327
Tallahassee, FL 32314
Re: BeachWater Association, Inc.
Dear Sir:
Please forward me copies of articles of incorporation and
by -laws for the above corporation.
Thank you.
Kindest regards,
/s/
JOHN R. COOK
JRC:vs
FLORIDA DEPART\'IEtiT OF STATE
Jim Smith
Set ",tare
January 28, 1992
John Cook
202 N.W. 5th Ave.
Okeechobee, FL 34972
SUBJECT: BEACHWATER ASSOCIATION, INC.
We are in receipt of your recent letter requesting certification.
The records of this office do not reflect an entity by the above
name, either foreign or domestic, active or dissolved.
Should you have any questions regarding this matter, please call the
Certification Section at (904) 487 -6053.
DAVID DEWELL
Division of Corporations
Division of Corporations, PO Box 6327, Tallahassee, Florida 32314
LAW OFFICES
JOHN R. COOK
202 NW 5TH AVENUE
OKEECHOBEE, FLORIDA 34972
TELEPHONE (813) 467 -0297
FAX (813) 467 -4798
January 22, 1992
Division of Corporations
P. 0. Box 6327
Tallahassee, FL 32314
Re:
Dear Sir:
Please forward me copies of articles of incorporation and
by -laws for the above corporation.
Thank you.
Kindest regards,
JOHN R. COOK
JRC:vs
Florida Department of State, Jim Smith, Secretary of State
Filing fees for corporations, limited partnerships and other business en-
tities were increased effective July 1, 1990 by the Florida Legislature.
Please make a note of these changes in your records.
Profit and NonProfit
Florida Corporations
Filing Fees $35
Certified Copy $52.50
Registered Agent
Designation
$122.50
Certified Copy of any record
Change of Registered Agent
Reinstatement
Annual Report
Amendment of any record
Dissolution & Withdrawal
Articles of Correction
Revocation of Dissolution
Certificate of Status
Resignation of Reg. Agent
(Active Corporation)
CORPORATION BASIC FEES
Foreign Corporations
Filing Fees $35
Certified Copy $52.50
Registered Agent
Designation
$122.50
Foreign Non Profit Corporations
Filing Fees $60
Certified Copy $52.50
Registered Agent
Designation saa
$52.50 Merger
$35 Trade & Service Marks
$175 Trade & Service Mark Renewals
$61.25 Trade & Service Mark Assignment
$35 Name Reservation
$35 (120-day non - renewable)
$35 Foreign Name Registration
$35 Foreign Name Renewal
$8.75 Resignation of Reg. Agent
(Inactive Corporation)
$87.50 Substitute Service of Process (Chapter 48)
$147.50
$35 for each party
$87.50 per class
$87.50 per class
$50
$35
$87.50
$87.50
$35
$8.75
LIMITED PARTNERSHIP CERTIFICATE /APPLICATION AND BASIC FEES
Filing Fees $52.50 minimum - $1750 maximum
Registered Agent Designation $35
The filing fee is based on the total amount contributed and anticipated to be contributed by the limited partners as
shown in the affidavit at a rate of $7 per $1000. The filing fee for an Application to Register a Foreign Limited
Partnership is based on the total amount contributed by the limited partners allocated for the purpose of transact-
ing business in the State of Florida at a rate of $7 per $1000.
Certified Copy $52.50
(15 pages or less. $1 for each additional
page after initial 15 pages)
Reg. Agent/Office change $35
Affidavit Increasing Contributions
$7 per $1000 on increase only
($52.50 minimum - $1750 maximum)
Affidavit Decreasing Contributions $52.50
Amendment
(other than specified above) $52.50
Name Reservation (120 days)
(non renewable)
Certificate of Status $ 8.75
(Certificate of Fact)
Cancellation $52.50
Resignation of Registered Agent $87.50
L.P. Annual Report
$7 per $1000 of invested capital
($52.50 minimum - $437.50 maximum)
Reinstatement
$35 ($500 for each year or part thereof the
partnership was revoked plus the delinquent
annual report fees)
DIVISION OF CORPORATIONS, P.O. BOX 6327, TALLAHASSEE, FL 32314
CR2E058 (7 -90)
BURTON C. CONNER, P.A.
COUNSELOR AT LAW
301 N.W. FIFTH STREET
OKEECHOBEE, FLORIDA 34972
August 23, 1991
1813) 467 -8800
John R. Cook, Esquire
202 Northwest Fifth Avenue
Okeechobee, Florida 34972
Re: OBWA contract with City of Okeechobee
Dear John:
I discussed with L. C. Fortner the objections he has
registered to the billing statements from the City concerning
engineering fees. The matter has also been discussed with the
Board of Directors.
OBWA's position is that the contract does not contemplate
engineering services for expansion of the plant or anything
connected with the sewer system.
Perhaps it would be best for you and I to sit down with Ms.
Groover and L. C. if Beach Water is not correctly understanding the
nature of the engineering fees the City is attempting to charge us
for.
Also, please be advised that Beach Water does not intend to
prepare a preliminary draft of any new contract for water. Because
the City seems to be so disgruntled about the wording of the
existing contract, we fee it would be best for the City to prepare
the preliminary draft.
Beach Water still stands by its resolution that a new contract
must be signed on or before October 1, 1991.
Burton C. Conner
BCC /glc
cc: Leland Pearce, President
L. C. Fortner, Superintendent
COOK - CR.AUG
,,iii....
OKEE
0 90:
,,,.,� City of Okeechobee
55 S.E. Third Avenue • Okeechobee, Florida 34974 - 2932.813/763 -3372
October 17, 1991
Mr. Steve Porter, Chairman
Water and Sewer Task Force
c/o Board of County Commissioners
304 NW 2nd Street, Room 106
Okeechobee, Florida 34973
Dear Mr. Porter:
The City Council would like to request a meeting of the Water and
Sewer Task Force to discuss the Final Report of water and sewer
options developed by PMG Associates, Inc. We are in receipt of the
Final Report which provides input to define our direction; however,
we believe that a session should occur which would determine how
best to use this data to chart a course in utility services to best
meet the needs of the overall community.
Please contact us at your earliest convenience when this meeting
could be scheduled.
Thank you.
JEK /ssg /res
C:];7
ames E. Kirk
Mayor
Truly Yours,
cc: City Council
Okeechobee Beach Water Association
Okeechobee Business Council
City of Okeechobee
55 S.E. Third Avenue • Okeechobee, Florida 34974 - 2932.813/763 -3372
October 17, 1991
Mr. Leland Pearce
Okeechobee Beach Water Association
8840 HWY 78 West
Okeechobee, Florida 34974
Dear Mr. Pearce:
The City has completed the pilot study on the ground water well
field. Preliminary indications regarding water quality and
quantity are generally positive.
We would like to take this opportunity to invite the Okeechobee
Beach Water Association to remain with the City as a water
customer. We need to determine the size of our new facility;
obviously, Beach's intentions will affect this decision. We would
be pleased to meet with you to discuss contract details at your
earliest convenience, if you feel this would be appropriate.
This decision must be made within the next two weeks in order for
the City to meet the requirements of the Florida Department of
Environmental Regulation.
Please respond as soon as possible. Thank you.
JEK /ssg /res
cc: City Council
Truly Yours,
James E. Kirk
Mayor
BURTON C. CONNER. P.A.
COUNSELOR AT LAW
301
:N8i\O12TIIWEST FIFTH STREET
()IiEEC!IOBEE. FLORIDA 34974
May 29, 1991
Honorable James E. Kirk, Mayor
City of Okeechobee
55 Southeast Third Avenue
Okeechobee, Florida 34974
Re: Negotiations for New Contract For Water
1813) 467 -8800
Dear Mayor Kirk:
This letter will confirm the mutual agreement between the City
Council and the Board of Directors of Okeechobee Beach Water
Association to select a committee of six to make recommendations
for the main points of a new contract for water. The new contract
is to begin when the present contract expires. The City Council
will select three members of the committee, and Okeechobee Beach
Water Association will select three members.
It was further discussed and agreed that the committee would
not begin its work until after PMG Associates, Inc., completes its
study, which will take approximately six weeks after the consultant
is officially hired.
Finally it was discussed and agreed that once the consultant
completes its work, the City representatives on the committee would
meet and draft a proposal on the manner in which the water charge
would be calculated. The representatives of Beach Water would
review the proposal and then the full committee would meet to begin
discussing recommendations to the Council and the Board of
Directors for a new contract.
If your understanding of the plan of action y
plan vi. Z'i iv any different,'
please advise.
Sinc
BCC /glc
urton C. Conner
cc: Leland Pearce, President
L. C. Fortner, Jr., Superintendent
John R. Cook, Esquire
KIRK2- CR.MAY
® & 1989 MIRAGE STUDIOS.
OKEECHOBEE BEACH \A! A.TER ASSOC SAT ON, INC.
April 26, 1991
Ms. Susan S. Groover
City of Okeechobee
55 S.E. ThirJ Avenue
Okeechobee, Florida 34974
RE: System Capacity Charges
Dear Ms. Groover,
In reply to your letter to Mr. Leland Pearce, dated April 24, 1991, we submit
the following:
Peak PAID by OBWA
Month Average GPD
March 1985 640,065 $140,065.00
February 1986 662,321 22,256.00
February 1987 677,543 15,222.00
February 1988 655,862 -0-
February 1989 775,929 98,386.00
February 1990 717,769 -0-
Total $275,929.00
In 1987, the Ok.-7.7.h,;bee Beach Water Association paid the system capacity charges
thle peak usage of 677,543 gallons per day.
In 1988, the peak usage of 655,842 gallons per day was less than the peak of
1987, therefore, no system capacity was due the City in 1988.
Ire 19n), tga1 imat ,.visage of 775,929 gallons per day less the 677‘543 gallons per day
paiJ for aim 1987, left a balance of $98,386.00 due the City. This was paid on
Ayz-1 26, 1989, by check number 8109.
Page 2 of your letter to Mr. Pearce, shows the 1987 peak to be 655,862 gallons
per day, but should have been 677,543 gallons per day.
8840 Hwy 78W 34974
RO1i c aroaci Qc5XE • OKEECHOBEE, FLORIDA 3X472 • PHONE 763 -3793
OKEECHOBEE BEACH WATER ASSOCNATION, INC.
Page 2
Ms. Susan S. Groover
According to my calculations, the Okeechobee Beach Water Association has
paid the City for the peak usage of 775,929 gallons per day. No additional
money is due the City at this time.
Please give me a call if you have any questions.
Yours Truly,
Landon C. Fortner, Jr..
Superintendent
LCF/ m j m
8840 Hwy 78W 34974
i@atmvat4x)ap x®owsxi • OKEECHOBEE, FLORIDA 3347(2 • PHONE 763 -3793
/ l'' OXf,
111 0 ~O
14 ' , s.
\O n%
Z t City of Okeechobee . 7 1/
-_�OR10 ,1
55 S.E. Third Avenue • Okeechobee, Florida 34974 -2932 • 813/763 -3372
April 24, 1991
Mr. Leland Pearce
Okeechobee Beach Water Association
8840 HWY 78 West
Okeechobee, Florida 34974
Dear Mr. Pearce:
In accordance with our agreement of August 6, 1985, this letter
will bring you up to date on the systems capacity charges for the
Okeechobee Beach Water Association for the time period of September
1989 to August 1990. The OBWA monthly usage statistics are as
follows:
Month Gal /Month Gal /Day (Avg)
Sep 89 14,318,000 477,267
Oct 89 15,433,000 497,839
Nov 89 17,681,000 589,367
Dec 89 19,876,000 641,161
Jan 90 20,692,000 667,484
Feb 90 20,095,000 - 717,679 * Peak
Mar 90 21,642,000 698,129
Apr 90 17,181,000 572,700
May 90 16,083,000 518,806
Jun 90 14,270,000 475,667
Jul 90 14,114,000 455,290
Aug 90 14,696,000 474,065
Peak daily average usage occurred during February 1990 of 717,679
gallons per day. This amount of water is less than the peak daily
average usage of 1989 of 775,929. As defined in our agreement, the
annual invoice for the systems capacity charge for 1990 is zero.
In reviewing our records of previous billings, we have discovered
that the amount billed in 1989 was in error. The peak daily
average usage for 1988 was 655,862 gallons per day; therefore, the
bill should have been calculated as follows:
775,929 - 655,862 =
120,067 gpd X $1.00 per gpd =
Less amount previously received =
Total owed to City =
120,067 gpd
$120,067.00
$ 98,386.00
$ 21,681.00
Mr. Leland Pearce
April 24, 1991
Page 2
It appears that the peak daily average for 1987 of 655,862 gpd was
used in the determination of the 1989 systems capacity charge, when
the 1988 value should have been used.
If you have any questions, please do not hesitate to call.
Very Truly Yours,
)Skt.)-(A.^—
Susan S. Groover, PE
Interim Director of Public Utilities
cc: Finance Office
�M1 i
OKEECHOBEE BEACH WATER ASSOCIATION, INC.
April 20, 1989
Mr. John Drago
City Administrator
55 S.E. Third Avenue
Okeechobee, Florida 34974
Dear Mr. Drago,
This association wants to correct any misunderstanding which may occur as
a result of your letter of January 16, 1989 (enclosed copy). Our concern
is your statement that this association is agreeable to converting the
present contract cost provisions into a single rate.
The two members of the board who met with you on November 16, 1988, did
not agree to cancel the present contract in favor of your proposal, but
agree to consider it. The directors feel that the current contract is
still valid with more than five years remaining and that the end result of
negotiations is to amend the contract to provide for additional water
rather than cancelling for some other agreement.
In order to avoid any further confusion, we are sending copies of your
letter of October 6, 1988 and the association's letter of October 18, 1988,
and your response of January 16, 1989 to each member of the city council
and the city attorney.
As states in our letter of October 18, 1988, we are ready to have our
representatives meet with you at a mutally satisfactory time to discuss
this matter.
Leland Pearce, President
Okeechobee Beach Water Assoc.
CC: see Page 2
ROTIT - #tmtxiifOXY511 • OKEECHOBEE, FLORIDA,3a mmx • PHONE 763 -3793
34974
8840 Hwy 78W
City of Okeechobee
Office of
City
Administrator
January 16, 1989
Mr. Leland Pearce
President
Okeechobee Beach Water Association, Inc.
8840 Highway 78 West
Okeechobee, Florida 34974
Dear Mr. Pearce:
At our November 16, 1988 meeting, which was our first and only
meeting and discussion, your association was agreeable to have the
current contract costing provisions converted into a single rate.
The rate of $1.10 includes a 25% surcharge, permitted by Florida
law, and charged to all customers in the county. The $1.10 rate
will be adjusted, upward, after the city borrows the money for its
water plant expansion.
The service availability charge will.now be billed monthly,
rather than yearly. This will help your association better manage
your cash flow, and avoid having to pay a large sum at one time
(i.e. the $140,065 service availability charge you paid in 1985).
The rate schedule was designed to be used for any wholesale
account - current or future; therefore, some of the rates in the
schedule may not apply to your association but may apply to other
wholesale customers.
After your review, the city can prepare the necessary contract
to present to your association for approval; which in turn will be
presented`to the city council for their approval.
Sincerely,
//
n J. Drago
ity Administrator
sf
55 S.E. Third Avenue • Okeechobee, Florida 34974 -2932 • 813/763-3372
RATE SCHEDULE FOR WHOLESALE CUSTOMERS
1. Water volume charge per 1000 gallons - $1.10.
2. Water service availability monthly charge:
METER SIZE
8"
1 0"
1 2"
CHARGE
$4,000.00
6,000.00
8,000.00
3. Emergency rate surcharge for water conservation:
Surcharges to be applied to water gallonage rate per 1000
gallons when deemed necessary by the city council.
PERCENT REDUCTION IN PERCENT SURCHARGE APPLIED
WATER USAGE REQUIRED GALLONAGE CHARGE
0%
10%
25%
50%
0%
25%
60%
125%
4. Customer deposit will equal the estimated billing for two
months.
5. Service Re- connect:
During business hours
After business hours
6. Temporary disconnect:
Turn -off charge
$25.00
50.00
25.00
7. Billing and collection of utility fees or third party billing:
a. Initial set -up charges:
Create a file
Computer program maintenance
Accounting services
b. Charge for billing
5.00
2.50 per 1/4 -hour
2.50 per 1/4 -hour
1.00 per account
8. Water meter installation including turn -on:
Meter installation charge will be based upon the actual
cost of installation.
9. Labor and material for services:
Labor, straight time
Labor, overtime
Material
10. Meter Re -read:
Standard scheduling
By appointment
Meter re -read charges
reading was incorrect.
1.3 x actual labor dollars
1.5 x straight time
120% of actual cost
$25.00 per occurrence
35.00 per occurrence
are not applicable if the initial
11. Meter Test - $30.00 per test.
Meter test charge is not applicable if the meter is inaccurate
by AWWA•Standards.
12. Delinquent Fee - 2.5% of delinquent amount due.
13. Service disconnect for nonpayment:
One within 15- months $25.00 per occurrence
Two within 15- months 35.00 per occurrence
Three or more within 15- months 50.00 per occurrence
14. Removal of service line:
Charge based upon actual replacement cost (labor and
materials) plus a 10% surcharge or $100.00, whichever is
greater; per occurrence.
15. Reinstallation of a service line removed for nonpayment of
charges:
Charge based upon actual replacement cost (labor and
materials) plus a 10% surcharge or $100.00, whichever is
greater; per occurrence.
16. Straight line removal - $100.00 per occurrence.
17. Destruction of meter and /or related equipment:
Charge based upon actual replacement cost (labor and
materials) plus a 10% surcharge or $100.00 whichever is
greater; per occurrence.
18. Illegal turn on or tampering with a water meter - $50.00 per
occurrence.
19. Returned check - $25.00 per occurrence
OKEECHOBEE BEACH WATER ASSOCIATION, INC.
October 18, 1988
Mr. John J. Drago
City Administrator
City of Okeechobee
55 S.E. Third Avenue
Okeechobee, Florida 34974
RE: Contrace.between City $ Okeechobee Beach Water Association
Dear Mr. Drago,
In reply to your letter of October 6th, OBWA is willing to contribute a
fair -share amount toward the construction costs for the $6,000.000 water
treatment plant expansion. For your information, OBWA in the past has
contributed a total of $275,000 toward the construction costs of new Raw
Water Facilities and new Clearwell. In addition, we have paid a System
Capacity Charge of $177,543 to the City.
The water bills for members of OBWA have never been subsidized by the
customers of the City's water system. The existing contract between OBWA
and the City has not expired and is fair to both parties in that it requires
the Association "to pay monthly to the City 100% of the actual cost to the
City of producing the water, plus an additional 15%". Debt service and
depreciation of the present worth of the City's Water Plant are included
in the actual cost of producing water.
We are ready to have our representatives meet with you at a mutually
satisfactory time to discuss this matter.
Sincerely,
Leland Pearce
President
LP /mjm
cc: Attorney Selmi
Okeechobee News
Engineer J.H Weaver
K515c114xltxd3QXina( • OKEECHOBEE, FLORIDAx3 0( • PHONE 763 -3793
8840 Hwy 78W'Y! 34974
October 6, 1988
City of Okeechobee
Mr. Leland Pearce
President
Buckhead Enterprises, Inc.
250 Buckhead Ridge
Okeechobee, Florida 34974
Dear Mr. Pearce:
Office of
City
Administrator
At Tuesday's city council meeting the contract between the city and
your organization was discussed. As you are aware, the city is
considering a 6- million dollar water treatment plant expansion
project. The estimated rate increase to present water customers
is 50 %.
In order to equalize the impact of the rate increase, the city is
desirous of renegotiating our present contract for water
consumption, and negotiating a separate contract for debt service.
With the water treatment plant expansion, the city would be in a
much better position to supply you with more water; thereby
enabling you to expand your distribution system to new customers
and increase your revenue base.
We would appreciate knowing a time when we can meet to discuss this
matter.
Sinc - rely,
,�
J. rago
ty A.'inistrator
sf
55 S.E. Third Avenue • Okeechobee, Florida 34974 -2932 • 813/763-3372
rd6 3303 P4GE1:154
NOTICE OF UTILITY LIEN
Inc conditions of this claim of lien are as follows:
Applicant /owner hereby elects to proceed under Chapter 18, Article IV,
Section 18-561 of the Code of Ordinances of the City of Okeechobee,
Florida allowing applicant /owner an extended pay plan of thirty -six
(36) months for sewer connection fees and sewer system capacity charges.
Applicant /owner- understands that in the event applicant /owner sells or
disposes of his property, as hereinafter described, or is delinquent in
the payment of connection charges or sewer system capacity charges, the
payment of these charges, to the City, shall become immediately due and
payable thereon.
Applicant /owner shall take notice that the City shall have a lien provided
hereon on said property, pursuant to Section 159.17 Florida Statutes, until
such time as the connection; charges and sewer system capacity charges
tore paid by applicant /owner. Such lien becomes effective if full payment
due of connection charges and system capacity charges is not made im-
mediately, to the City, upon change in ownership of said property or upon
a delinquency in the payments of said connection charges and sewer system
c zpacity charges.
Applicant /owner r:nclertands that once the partial and /or full pa} rnents
due of connection and system capacity charges have been made, to the City,
the City shall there upon release said lien, partially or fully, accordingly.
Wherefore, applicant /owner hereby agrees to proceed under the extended
payment plan described herein and to follow the foregoing conditions of this
claim of lien.
WIT ESSES FOVAPP1', ANT /OWNER:
7 a
Rk
i
c.
APPLICANT /OWNER/
, APPLICANT /OWNER, A1ND TO
()THERS WHOy1 IT MAY C`ONCERN: YOU G,'ILL PLEASE TAKE NOTICE
YOU ARE NOTIFIED THAT THE CITY OF OKEECHOBEE, A 11'IvIICIPALITY,
IN THE COUNTY OF OKEECHOBEE, STATE OF FLORIDA, IN PU Y!Y\NC1E OF
THE CONTRACT Ac.;REEMLLNT HEREIN WITH 4'_r f
1'c_' PAY SEWER CONNECTION AND SYSTEM CAPACITY Y CHARGE TINDER AN
EXTENDED PAYMENT PLAN, HAS, HOLDS AND INTENDS TO MAI LIAIN A LIEN
UPON THE FOLLOWING DESCRIBED LOT, PIECE OR PARCEL OF . ND, SITUATE,
LYING AND BEING IN THE CITY OF OKEECHOBEE, COUNTY OF Y' ECHOBEE
AND STATE OF FLORIDA, KNOWN AND DDESC ZIB,,EDAS: Y�
r�. LLL t,t J /
/2/4.Z4
,CZ; /
' lir cite
-Z.
FOR THE SUM OF /.0 Z . 4.t e ,tCG��L DOLLARS ($ �D Y ' )
INCLUDING ALL LAWFUL FEES AND CHARGES AS AFORESAID.
6 308 PACE1155
IN WITNESS WHEREOF, The City of Okeechobee has caused this NOTICE OF LIEN
be s_gned in its name, by its Mayor, and its corporate seal to be affixed and
attested by its City Clerk this 1 / ay of �� , 19 ' , in
City Hall in the City of Okeechobee, County of Okeechobee and the State of
Florida.
City of Okeechobee:
BY
ATTEST:
STATE OF FLORIDA:
COUNTY OF OKEECHOBEE:
I HEREBY CERTIFY that on this day, before me, the undersigned, a notaryjyblic
in and, or the State of Florida at large, personally appeared ('/ ��r1 ���2� /3
and he , l .- . '� - / tomato me well known to be the Mayor and City lerk,
respectively, of the City of Okeechobee, and known to me to be the persons who exe-
cuted the foregoing NOTICE OF LIEN for the City of Okeechobee as well Mayor and
City Clerk: z rid they severally acknowledged executiorio:f same to be their free act
and deed by authority and on behalf of the City of Okeechobee for the use and pur-
poses therein expressed.
WITNESS ray hand and official seal at Okeechobee, said aunty and state on this
" day of �.0 �Ew , 194 ? .
NOTARY: PUBLIC, STMT. OF FLORIDA AT LARGE
NOTARY PUOLIC SLATE OF FLOR10a
• MY COMMISSION EkP. APR 15,1950
BONDED IHRU GENERAL INS. UND.
ca
r
d pia
OM. WOO
CO
r
CJ1
April 19, 1989
City of Okeechobee
Ms. Leiand Pearce
President
Okeechobee Beach Water Association, Inc.
8840 Highway 78 West
Okeechobee, FL 34974
Dear Mr. Pearce:
Office of
City
Administrator
The city mailed to you a proposed rate schedule for wholesale
customers. The new rate for water consumption was converted into
a single rate as we had discussed on November 16, 1988. We hope
that you and your staff have had an opportunity to review the rate
schedule. The city is interested in meeting with you concerning
the rate schedule. As you may be aware, the city seems to have
only one additional item to add to the water plant expansion before
we are permitted. The city is exploring financial arrangements to
pay for the water plant expansion.
If you require any additional information, please let me know.
Also please let me know when we can meet.
Sincerely,
Jo J' Drago
C y dministrator
55 S.E. Third Avenue • Okeechobee, Florida 34974 -2932 • 813/763 -3372
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Mayor Kirk called the April 20, 1993 meeting to order at 7:00 p.m.
A. Call meeting to order on April 20, 7:00 P.M.
Clerk Thomas called the roll:
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Attorney Cook read Ordinance No. 655 by title only as follows:
Discussion was held among Council and Attorney Christiansen.
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A. Reading of Ordinance 655 continued:
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C. Public Comment.
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20, 1993 - Regular Meeting - Page 9 of 21
COUNCILMEMBER ACTION
Vote on motion to approve water utility agreement:
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April 20, 1993 - Regular Meeting - Page 11 of 21
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Item was withdrawn from today's agenda.
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COUNCILMEMBER ACTION
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COUNCILMEMBER ACTION
ISSUE #2 - COUNTY/OBWA FRANCHISE
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Bonnie S. Thomas, CMC, CITY CLERK
''�/0* OKEECyO:
J •• 1 V V 1 V
November 16, 1993
John Cook, Esquire
Okeechobee City Attorney
(Hand Delivery)
RF : OI3WA vs. City of Okeechobee
Dear John:
.'J 1 JJ 11 • 1V 111-1 . V'. l r .lJL
The following is what I think would be a reasonable long -term settlement of the disputes
between OBWA and the City:
1. The following service arca will be served by OBWA:
a) t verything� rest. tad south of the existing 201 Service Area.
b) S32- T37S -R35E (Wolff and Davis property)
c) North U2 of S5 -'138S -R35E, except for existing City ctistomers.
d) S3 and 4 -T38 -R35E, except for existing City customers.
c) S35- T37S - R3517,
f) S36- T37S- R35fi, except Rowland Foundation property and any other
parcel in the NE1 /4 not presently sewed by OI3WA.
g) S25- T37S -R35E
h) S26- T37S - R35E, except any property north of Taylor Creek not
presently served by OBWA.
2. The following service area will be served by the City:
S33- T37S -R.35E
b) S30 and 31 -1 7S -R3 E, and everything east and southeast thereof.
c) Rowland Foundation property and any other parcel in the NE1/4 of
S36 -T37- R35E, not presently served.by OBWA.
d) Everything north of Taylor. Creek lying in S26-T37S-R35 not presently
served by OBWA.
2 \obwa\eity \cook 1111.10.
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3. OBWA will give the King's Bay water plant to the City,
4. As to any portib of 527- 5 -R35E an( S.34-1'375-16 " south the
prop cd Wolff Ro Extension of served by BWA or the : 'ty, 1 wo
propos• that we leave up to the veloper of c, h parcel to de c w
entity wi -.rve a parse . This area o and is truly "middle groi - ` of
developable . nd between the two system , so let the near t determine who
serves that area,
5. OI3WA will agree to an atrnendrnei t to the franchise from the County to
reduce our service area within the 201 Facility Planning Area to the limits
outlined above.
6. The City will drop all further challenges to the constructlon of OBWA's water
plant and well field.
Please advise.
Sincerely,
I3URTON C. CONNER
I3CC /ktd
0 /. ? lr) 4 SLc_. 351.
5 '%6 -c_..
2k>bwa \city \a+ok11 J 1.1et
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CITY OF OKEECHOBEE
MEMORANDUM
TO: Mayor and Council DATE: December 30, 1993
THRU: SUBJECT: Agenda for 01/04/94
THRU:
FROM: John Drago
********************* *********************** * * * * * * * * * * * * * * * * * * * * * * * * * * * * * **
Please find attached your agenda for the January 4, 1994 Council Meeting.
vaN3011 SaWOO1 NO SW311 dO 1VMV iGH1 /M tIO 1111:11:1343G 1NO111GGV 3H1 1•JOd 1S311031:1
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Discuss Occupational Licenses - Finance Director (E -9)
cp 93 V 9) Vti to W N
Discuss Resolution 86-7 - Finance Director (E -8)
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Hear from the Economic Council of Okeechobee - Mr. Robbie Hoover (E -1)
sseuisn8 meN
Economic Council of Okeecho ee
P.O. Box 718
Okeechobee, FL 34973
TO: City Councilmen
RE: Water /Sewer
Dear Councilman,
December 13, 1993
As you are aware, the Okeechobee Economic Council has been
working deligently over the past four years endeavoring to
resolve the problems of water and wastewater in our
community. I am sure that you feel with the current
onslaught of lawsuits that we now have begun a period of
complete silence and no progress will be made until they are
settled.
The Economic Council has supported the idea of forming a
comprehensive utility service for the entire community. We
know that you have also supported this idea, along with the
other members of the Okeechobee City Council, Okeechobee
County Commission, and Okeechobee Beach Water Association.
However, for various reasons, the merits of this idea have
not been fully explored. We fear that the opportunity and
benefits for a cooperative project may be lost if we don't
act now.
For this reason, we of the Economic Council of Okeechobee
request of the Okeechobee City Council, County Commission and
Okeechobee Beach Water (the Parties) that they set aside a
sixty day period to investigate solutions to the current
water and sewer problems.
1. The Parties would suspend all planning, permitting,
funding, construction (with the exception of the city's
water treatment facility now under construction) or
acquisition activity relevant to water and sewer during
the period. The Parties also would agree to stay all
relevant litigation with preservation of rights.
2. The City would need assurance from DEP that the delay
would be acceptable. We pledge our assistance in gaining
these assurances.
3. The Parties commit to good faith efforts to reach
agreement on a plan to create a unified utility service
benefiting our entire community. To expedite this
endeavor we believe it is essential that the Parties
establish an Okeechobee Utility Working Group which would
consist of five members as follows:
300 N.W. 5th Street, Site 318, Okeechobee, FL, 3.1972
a. Once city council member and one citizen chosen by
the city council.
b. One county commissioner and one citizen chosen by the
county commissioners.
c. One member chosen by the OBWA.
This membership is suggested to provide a minimum size
working group, yet with all the essential interests
represented.
4. We perceive the working group having the following
specific duties:
a. Gather and analyze all information concerning the
most cost efficient and non - discretionary means for
providing area wide utility services for the entire
community. This would include but not be limited to,
legal issues, service areas, rate structures,
funding, and a review of the city's utility appraisal
due in February 1994.
b. Provide to the parties, on a regular basis, reports
of the working group's activity and findings or
recommendations for action.
We suggest that the meetings of the working group would be
co- chaired by the city council member and the county
commission member. Of course, the working group would be
advisory in nature and the Parties would retain all of their
respective decision making authority.
It is important that this effort begins as soon as possible.
We urge the Parties to commit to this effort in January, 1994
and form the Working Group to begin in February, 1994.
The Okeechobee Economic Council urges you to consider how
valuable this effort is to our community. We pledge our
strongest efforts to help in this endeavor.
We intend to present this request to you at your meeting on
Tuesday, January 4, 1994 (7:00 P.M.) and therefore formally
request that it be an agenda item at that meeting.
Respectfully submitted,
Monica M. Clark,
Chairperson
Economic Council of Okeechobee County, Inc.
MMC /hls
Copies: City Councilmen, County Commissioners,
John Drago, Chris Chinault.
RMA
Reese, Macon and Associates, Inc.
December 15, 1993
City of Okeechobee
55 S.E. Third Avenue
Okeechobee, FL 34974
ATTN: Mr. John J. Drago
RE: Water Distribution System Improvements
Dear John:
On November 18, 1993 we conducted a bid opening for the above referenced
project. Eight (8) bids were received as follows.
Contractor Amount
Censtate Contractors, Inc.
Sheltra & Sons Construction
Johnson Davis Inc. Construction
Speegle Construction, Inc.
Erskine Florida Properties
Chaz Equipment, Inc.
Giannetti Contracting, Inc.
Smith & Co.
$1,226,136.45
$1,274,075.25
$1,313,212.00
$1,387,087.00
$1,398,800.00
$1,672,599.75
$1,850,419.00
$1,936,695.50
The apparent low bidder for the project was Censtate Contractors, Inc. with a bid
of $1,226,136.25. We have reviewed Censtate Contractors, Inc. qualifications and past
performance history and find them to be an acceptable contractor for this project.
We therefore recommend the City award this project to Censtate Contractors,
Inc. in the amount of $1,226,136.45 at the next City Council Meeting.
If you have questions or wish to discuss this further, please call.
Very truly yours,
wdr -380
92 -115
William D. Reese, P.E.
9121 N. Military Trail • Suite 207 • Palm Beach Gardens, Florida 33410
Ph. (407) 625 -6660 FAX (407) 625 -6664
Tabulation Sheet
PIJ 11-00-12-93
for
6" Self Priming Sewage Pump
Blankenship & Associates Inc.
$ 17,410.00
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IT)
RESOLUTION NO. 94 -1
A RESOLUTION DECLARING A PORTION OF DOWNTOWN OKEECHOBEE AS AN
AREA SUITABLE FOR REDEVELOPMENT AND FINDING THE NEED FOR
REHABILITATION, CONSERVATION, OR REDEVELOPMENT OF SUCH AREA
AND PROVIDING AN EFFECTIVE DATE.
WHEREAS, there exists in the Downtown Okeechobee area more particularly
described as follows:
Begin at the Southwest Corner of Block 164 at Southwest 7th
Avenue and Southwest 2nd Street; proceed East on Southwest 2nd
Street along the South boundary of Blocks 164 through 169
continuing East on Southeast 2nd Street along the South
Boundary of Blocks 170, 171 and 203 to Southeast 4th Avenue;
then North along the East boundary of Block 203 to the
Northeast Corner of Block "A "; then West along the North
boundary of Blocks "A ", "P ", and "R" continuing West to the
Northeast corner of Block "E "; then North along the East
boundary of Block 155 to the Northeast corner of Block 155;
then West along the North boundary of Block 155 to the
Northwest corner of Block 160; then South along the West
boundary of Blocks 160, "F" and 164 to the POB.
certain areas which are hereby found to be slum or blighted areas, and
WHEREAS, the rehabilitation, conservation, or redevelopment of such
areas is necessary in the interest of the public health, safety, morals
and welfare of the residents of the City of Okeechobee;
NOW THEREFORE, BE IT RESOLVED by the City Council of the City of
Okeechobee, Florida:
1. That certain areas within the Downtown Okeechobee area
described above are hereby declared to be slum or blighted
areas.
2. That such areas are appropriate for the Community
Redevelopment projects pursuant to the Community Redevelopment
Act of 1969, as amended.
3. That the rehabilitation, conservation, redevelopment of such
areas is necessary in th interest of the public, health,
safety, morals and welfare of the residents of the City of
Okeechobee.
4. This resolution shall become effective immediately.
Dated this 4th day of January , 1994.
ATTEST:
Bonnie S. Thomas, CMC, City Clerk
CITY OF OKEECHOBEE
James E. Kirk, Mayor
RESOLUTION NO. 94 -2
A RESOLUTION OF THE CITY OF OKEECHOBEE, FLORIDA FINDING A NEED
FOR THE CREATION OF A DOWNTOWN REDEVELOPMENT AGENCY TO CARRY
OUT THE COMMUNITY REDEVELOPMENT PURPOSES OF CHAPTER 163, PART
III, FLORIDA STATUTES IN DOWNTOWN OKEECHOBEE; AND PROVIDING AN
EFFECTIVE DATE.
WHEREAS, the City Council of the City of Okeechobee, Florida has by
Resolution No. 94 -1 declared an area of land located in downtown
Okeechobee to be a slum or blighted area suitable for a community
redevelopment project pursuant to Chapter 163, Part III, Florida
Statutes, and
WHEREAS, said chapter requires a finding that the creation of a
Community Redevelopment Agency is necessary to effectuate the purposes
of said chapter,
NOW THEREFORE BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
OKEECHOBEE, FLORIDA:
1. That there is a need for a Community Redevelopment Agency to
carry out the community redevelopment purposes of Chapter 163,
Part III, Florida Statutes, in the downtown area of the City
of Okeechobee,
2. This Resolution shall become effective immediately upon its
adoption.
Dated this 4th day of January , 1994.
CITY OF OKEECHOBEE
James E. Kirk, Mayor
ATTEST:
Bonnie S. Thomas, CMC, City Clerk
RESOLUTION NO. 94 -3
A RESOLUTION OF THE CITY OF OKEECHOBEE, FLORIDA DECLARING
ITSELF AS THE DOWNTOWN REDEVELOPMENT AGENCY TO CARRY OUT
THE COMMUNITY REDEVELOPMENT PURPOSES OF CHAPTER 163, PART
III, FLORIDA STATUTES IN DOWNTOWN OKEECHOBEE; AND
PROVIDING AN EFFECTIVE DATE.
WHEREAS, the City Council of the City of Okeechobee, Florida has by
Resolution No. 94 -1 declared a portion of downtown Okeechobee as an
area suitable for redevelopment and finding the need for
rehabilitation, conservation or redevelopment of such area, and
WHEREAS, by Resolution No. 94 -2 the City Council of the City of
Okeechobee had declared the need for a Community Redevelopment
Agency to carry out the community redevelopment purposes of Chapter
163, Part III, Florida Statutes.
WHEREAS, the City Council of Okeechobee, Florida deems it
appropriate to exercise its authority under Chapter 163.357 and
declare itself to be the agency,
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
OKEECHOBEE, FLORIDA:
1. That the City Council of the City of Okeechobee, Florida
be and the same is hereby declared as the Downtown
Redevelopment Agency for the City of Okeechobee, Florida.
2. The Downtown Redevelopment Agency shall have all the
rights, powers, duties, privileges and ammunites granted
by Chapter 163, Part III, Florida Statutes subject to all
responsibilities and liabilities imposed thereby.
3. The Downtown Redevelopment Agency shall carry out the
community redevelopment purposes authorized by Chapter
163, Part III, Florida Statutes.
4. This resolutions shall become effective immediately upon
its passage.
Dated this 4th day of January , 1994.
ATTEST:
Bonnie S. Thomas, CMC, City Clerk
CITY OF OKEECHOBEE
James E. Kirk, Mayor
OKEECHOBEE BEACH WATER
ASSOCIATION, INC.
Plaintiff,
-vs-
IN THE CIRCUIT COURT, IN AND FOR THE
NINETEENTH JUDICIAL CIRCUIT, FOR
OKEECHOBEE COUNTY, FLORIDA.
CASE NO. 93- 555 -CA
CITY OF OKEECHOBEE, FLORIDA,
a municipality existing under
the Laws of the State of Florida.
Defendant.
MOTION TO DISMISS
COMES NOW the City of Okeechobee, Florida, by and through
undersigned counsel, and files this motion to dismiss the complaint
filed herein by Plaintiff, pursuant to F.R.C.P. 1.140, and as
grounds therefore, states the following:
I.
1. The complaint filed by Plaintiff pursuant to the provisions
of Florida Statutes Chapter 86, Declaratory Relief, is insufficient
as a matter of law. The requirements of Chapter 86 F.S.,
necessitate a pleading that sets forth allegations of doubt as to
the existence or nonexistence of any immunity, power, privilege or
right; an allegation of a claim of right under any instrument in
writing in which plaintiff's right might be in doubt, or any right
or status, either equitable or legal, affected by any statute,
regulation, ordinance or otherwise which would require a judicial
determination as a condition precedent to the existence or
establishment of such rights. Lyles v. Dade County 123 So.2nd 466
(Fla. 3 DCA 1960).
2. The complaint filed by Plaintiff, at best, declares in
paragraph 18 that "Plaintiff and the Water Management District are
in doubt as to the service areas Plaintiff and Defendant may
legally serve after the existing bulk water supply contract
expires." Alleging the state of mind of the Water Management
District, since they are not a party to the action, should be
stricken. Further, in ruling on a motion to dismiss a complaint for
declaratory relief, the test is not whether Plaintiff is entitled
to a declaration in his favor, but rather it is whether he is
entitled to a declaration of right at all. City of Homestead vs.
Dade County 425 So.2nd 593 (Fla. 3 DCA 1983).
3. The complaint of Plaintiff, by failing to allege the
necessary elements of Chapter 86, to specifically show a bona fide
adverse interest between parties concerning power, privilege,
immunity or rights of Plaintiff, fails to establish as a matter of
law that Plaintiff is entitled to declaratory relief at all; is
therefore deficient as a matter of law, and subject to dismissal.
II.
4. The complaint of Plaintiff should be dismissed for failure
to join indispensable parties.
5. The basis for Plaintiff's complaint seems to be that they
received benefit of a franchise ordinance from Okeechobee County,
which grants a certain described service area in which to conduct
the production of, and distribution of, potable water, and that
this granted service area overlaps the service area designated by
ordinance by Defendant City of Okeechobee. Based upon this overlap,
Plaintiff states they have not been able to procure a consumptive
use permit from the South Florida Water Management District, and
that they demand judgment declaring the rights of Plaintiff under
its existing contract with Defendant; and also under Plaintiff's
franchise from Okeechobee County.
6. The provisions of Chapter 86, Florida Statutes, section
86.091, provide:
In any proceeding concerning the validity of a County or
Municipal charter, ordinance, or franchise, such County
or Municipality shall be made a party.
7. Further, it is clear that:
"It is essential that the Defendant in a declaratory judgment
action be the party or parties whose interests will be
affected by the decree. All persons having an interest in
the subject matter should be before the Court."
Jacobs & Goodman P.A. vs. McLin, Burnsed, Morrison, Johnson
& Roebuck, P.A. 582 So.2nd 98 (Fla. 5DCA 1991); and Miller
v. Miller 151 So.2nd 869 (Fla. 2 DCA 1963).
8. The allegations of Plaintiff's complaint state they derive
rights under the franchise ordinance with Okeechobee County, and
that they require the court's determination to ascertain those
rights. As this franchise ordinance ostensibly grants a certain
service area to Plaintiff, any determination by the court to the
contrary would necessarily affect the rights or interests of
Okeechobee County in its ordinance. Therefore, the County of
Okeechobee would be an indispensable party, and must be joined by
Plaintiff.
III.
9. The complaint of Plaintiff should be dismissed, as the
Plaintiff, by its own pleading, is not a system, work, project, or
utility of similar character to that of Defendant.
10. The statutory language on which Plaintiff bases its claim
for declaratory relief is set forth in F.S. 180.06 (9), which
states:
"However, a private company or municipality shall not
construct any system, work, project or utility authorized
to be constructed hereunder in the event that a system,
work, project or utility of a similar character is being
actually operated by a municipality or private company
in the municipality or territory immediately adjacent
thereto, unless such municipality or private company
consents to such construction ".
11. The allegations of Plaintiff's complaint make a bare
assertion that "Plaintiff has the ability and is serving in excess
of two thousand members in the Overlap Area, which is part of the
service area Plaintiff has claimed since 1965" (at paragraph 14).
However, other pleadings make it clear that Plaintiff is not a
system or utility of "similar character ", as defined in Chapter
180. The complaint states:
-at paragraph 4: "Since 1965, Plaintiff has been obtaining a
supply of water from Defendant under a series of bulk water
wholesale agreements."
- at paragraph 6: "Plaintiff intends and has engineering plans
to build a 1.5 million gallon per day water treatment facility to
supply water to its members."
- at paragraph 8: "Plaintiff has applied for a water
consumptive use permit from the South Florida Water Management
District."
-at paragraph 14: "When its new plant is built, Plaintiff will
have the ability to serve the projected growth of new connections
in the Overlap Area for the next ten years."
12. The allegations of the complaint, in their best light,
illustrate that Plaintiff is a water customer of Defendant, who has
no present ability, nor any in the foreseeable future, to serve any
customers potable water, absent the purchase of such water from
Defendant.
13. The court's interpretation of Chapter 180.06(9) has been
held to be that it only prohibits direct encroachment by one
utility provider into an operating area already served by another.
Ortega Utility vs. CitLof Jacksonville 564 So.2nd 1156, 1158 (Fla.
1 DCA 1990).
14. The flaw in Plaintiff's complaint is two -fold: First, by
their own pleadings, they are not a competing utility of a similar
character to Defendant; and Secondly, by their own pleadings, they
have no present ability to serve the area in dispute, and but a
hope of such service ability some unknown years in the future, in
the event they are ever able to construct a facility.
15. As previously discussed herein, the test of whether a
viable request for declaratory relief is before the court is not
whether Plaintiff is likely to prevail, but whether they are
entitled to make a claim for relief at all. City of Homestead, id.
With the pleadings before the court, Plaintiff seeks a declaration
that because they are a competing utility, and have the ability to
serve their customers, they are entitled to such declaration to
determine their service area However, the pleadings make it clear
Plaintiff is not a competing utility of similar character, nor does
it have the ability to serve any customers without purchasing water
from Defendant. Therefore, as a matter of law, Plaintiff is not
entitled to a declaration of its rights under F.S. Chapter 86.
IV.
16. The complaint of Plaintiff should be dismissed by the
court for failure to exhaust administrative remedies.
17. The Plaintiff, as alleged in their complaint, has a
pending application before the South Florida Water Management
District for a consumptive use permit, to initiate the construction
of a well water supply, and distribution plant to serve its claimed
service area with potable water.
18. The application to the District well predates the filing
of this lawsuit. However, since the initiation of the lawsuit, on
August 3, 1993, the Plaintiff has furnished the District additional
information, particularly on August 19, 1993, which purpose is to
...enable the District to address a request for service area
modification relative to the above referenced application." The
information furnished on that date included a revised service area
map, and revised population projections for the new requested
service area. (copy of letter attached, exhibit A).
19. It is evident from the application, and documents
furnished subsequent to the initiation of this lawsuit, that
Plaintiff is actively seeking an administrative determination to
obtain a consumptive use permit, and a service area designation
from the District.
20. The courts have held that while Section 120.73, Florida
Statutes stands for the proposition that nothing in the
administrative procedures act shall be construed to divest the
circuit courts of jurisdiction to render declaratory judgments
under the provisions of chapter 86, the courts have consistently
held that if administrative agencies are to function and endure as
viable institutions, courts must refrain from promiscuous
intervention in agency affairs, except for the most urgent reasons.
Odham v. Formost Dairies, Inc. 128 So.2d 586, 593, (Fla. 1961).
This reasoning is carried through in the recent decision of Gulf
Pines Memorial Park, Inc. v. Oaklawn Memorial Park, Inc. 361 So.2d
695, 699 (Fla. 1978) wherein the court observed:
...as a general proposition, the circuit court should refrain
from entertaining declaratory suits except in the most
extraordinary cases, where the party seeking to bypass usual
administrative channels can demonstrate that no adequate remedy
remains available under: Chapter 120." See also: School Board of
Leon County v. Mitchell 346 So.2d 562 (Fla. 1DCA 1977).
21. Apparent from the complaint of Plaintiff, and the attached
letter of August. 19, 1993 from the agent of Plaintiff to the Water
Management District, the agency has not yet passed upon the
consumptive use permit application of Plaintiff, nor their request
for a service area modification. Therefore, administrative remedies
have not been exhausted, and there is nothing contained in
Plaintiff's pleadings which would indicate that they do not possess
adequate remedies under such administrative procedures.
WHEREFORE, for the reasons expressed herein, Defendant City of
Okeechobee, Florida respectfully requests that the complaint of
Plaintiff be dismissed.
SUBMITTED this day of August, 1993.
I HEREBY CERTIFY that a true copy of the foregoing was
furnished by U.S. Mail this day of August, 1993 to: Burton C.
Conner 301 N.W. 5th St. Okeechobee, Florida 34972; and Vickers,
Caparello, Madsen, Lewis, Goldman & Metz, 2000 Palm Beach Lakes
Blvd. Suite 900, West Palm Beach, Florida 33409.
John R. Cook
202 N.W. 5th Avenue
Okeechobee, Florida 34972
(813)467 -0297
Florida Bar 262951
08-23 -93 12:09PM FROM SFWMDREGULATION DEPT
LINDAHL, BI()WNINCI, FEfi *AR( MELI.w'I'w't)M, INC,
1INI ; I kti. 1'I ANN1
GM0S 1901
HANDCARRY
Fc.„111,...:
AUG 9 1993
August 19, 1993
P.N. 92 -037
Mrs Thomas Colios, Flydrogeologist
Water Use Division, Regulation Department
South Florida Water Management District (District)
3301 Gun Club Road
West Palm Beach, Florida 33416 -4660
RE: Application #921204 -10; Request For Additional Information
Okeechobee Beach Water Association,,Inc, (OBWA)
Okeechobee and Glades Counties
•
Dear Mr, Colios:
This correspondence is in response to the District's letter, dated
August 121 1993 (copy attached) reciuesting additional information
to enable the District to address a request for service area
modification relative to the above referenced application, This
information is provided by Lindahl, Browning, Ferrari & Hellstrom,
Inc. on behalf of OBWA.
The additional information /response is provided, in the same order
as'the Request, as follows:
1. A revised service area map is enclosed which delineates the
new requested aervico area and the City of Okeechobee 201
Facilities Planning Area (201 Area) boundary; the new
requested service area includes the areas indicated as OBWA's
existing customer base plus those areas outside the 201 Area
within the OBWA Service Area Boundary in Okeechobee County and
GLadea County,
27 Enclosed are revised population projections for the new
requested service area and a water demand allocation based on
OBWA's existing customer base within the 201 Area and the
existing and projected demand within the remaining areas
outside the 201 Area in Okeechobee and Glades counties.
i ' I ri I I U II( I I I I 1\ ' . 1 " I t i l ' I l I 1.1, I I 1Lsl.li•tt-
•l III jUI'I I rk l • \i.l w lit 7! I I VAR' 1, lit III I lln U l '13•f7Y I \ \, ..IU'l "d!, •.!'!
08 -23 -93 12:09PM FROM SFWMDREGULATION DEPT
a t hodalogy
Tho revised population erojections were derived by OBWA based on
the existing number of water meters in the 201 Area, tho eNisting
number of meters in the remaining service area and a pr.ojectipn 'Y"f
growth in the non -201 Areas. A meter was assumed to represent a
typical household unit. A typical household unit was
conservatively assumed to represent 2.5 people, This persons per
household unit number is less than the County of Okeechobee
Comprehensive Plan projection of 2.67 persons per household in 1995
and 2.62 persona per household in 2000.
The current member of OBWA meters in the 201 Area Is 2043 meters.
The current number of OBWA meters in the remaining Okeechobee and
Glades County service area is 1184, Total OBWA existing customer
base is represented by 3207 meters (household units). The current
equivalent population of the existing OBWA customer base was
therefore estimated to be equivalent to 8018 persons.
(2.5 persons /household)(S207 meters) e 8018 persons
Future demand projections were based on the historical water
consumption of 85 gpcd, which is the average of residential and
commercial uae combined. Separate projections were made for
Okeechobee County and Glades County. No growth was assumed within
the 201 Area; only the existing customer base population in the 201
Area was carried forward each year up to the year 2005 end of the
projection period.
The increase in connections (meters) in Glades County was projected
at one percent (1x) per year. In the areas outside the 201 Area in
Okeechobee County, the increase in connections (meters) was
projected at one percent (1%) per year for 1994, 1995 and 1996 and,
at three percent (3%) per year for the remaining projection period,
This assumed the new water treatment plant will allow an increase
in connections to the OBWA system starting in 1397,
'Please contact LIF &H or OBWA should the District have any questions
or need more information, Thank you for you effort to insure this
matter ie placed before the Governing Board in September.
it ••.• r 9Y APB
M)9 19
N, �,.,. ,. ... _ , 1
GKM /smt
Enclosures
xet L.C. Fortner /OBWA
Steve Walker, ;Ng,
very truly yours,
LINA L, BROW ► TNG, FERRARI &
HE ROM,
s
rris
Engineer
onmental Services
OKEECHOBEE BEACH WATER
ASSOCIATION, INC.
Plaintiff,
-vs-
IN THE CIRCUIT COURT, IN AND FOR THE
NINETEENTH JUDICIAL CIRCUIT, FOR
OKEECHOBEE COUNTY, FLORIDA.
CASE NO. 93- 555 -CA
CITY OF OKEECHOBEE, FLORIDA,
a municipality existing under
the Laws of the State of Florida.
Defendant.
MOTION TO DISMISS
COMES NOW the City of Okeechobee, Florida, by and through
undersigned counsel, and files this motion to dismiss the complaint
filed herein by Plaintiff, pursuant to F.R.C.P. 1.140, and as
grounds therefore, states the following:
I.
1. The complaint filed by Plaintiff pursuant to the provisions
of Florida Statutes Chapter 86, Declaratory Relief, is insufficient
as a matter of law. The requirements of Chapter 86 F.S.,
necessitate a pleading that sets forth allegations of doubt as to
the existence or nonexistence of any immunity, power, privilege or
right; an allegation of a claim of right under any instrument in
writing in which plaintiff's right might be in doubt, or any right
or status, either equitable or legal, affected by any statute,
regulation, ordinance or otherwise which would require a judicial
determination as a condition precedent to the existence or
establishment of such rights. Lyles v. Dade County 123 So.2nd 466
(Fla. 3 DCA 1960).
2. The complaint filed by Plaintiff, at best, declares in
paragraph 18 that "Plaintiff and the Water Management District are
in doubt as to the service areas Plaintiff and Defendant may
legally serve after the existing bulk water supply contract
expires." Alleging the state of mind of the Water Management
District, since they are not a party to the action, should be
stricken. Further, in ruling on a motion to dismiss a complaint for
declaratory relief, the test is not whether Plaintiff is entitled
to a declaration in his favor, but rather it is whether he is
entitled to a declaration of right at all. City of Homestead vs.
Dade County 425 So.2nd 593 (Fla. 3 DCA 1983).
3. The complaint of Plaintiff, by failing to allege the
necessary elements of Chapter 86, to specifically show a bona fide
adverse interest between parties concerning power, privilege,
immunity or rights of Plaintiff, fails to establish as a matter of
law that Plaintiff is entitled to declaratory relief at all; is
therefore deficient as a matter of law, and subject to dismissal.
II.
4. The complaint of Plaintiff should be dismissed for failure
to join indispensable parties.
5. The basis for Plaintiff's complaint seems to be that they
received benefit of a franchise ordinance from Okeechobee County,
which grants a certain described service area in which to conduct
the production of, and distribution of, potable water, and that
this granted service area overlaps the service area designated by
ordinance by Defendant City of Okeechobee. Based upon this overlap,
Plaintiff states they have not been able to procure a consumptive
use permit from the South Florida Water Management District, and
that they demand judgment declaring the rights of Plaintiff under
its existing contract with Defendant; and also under Plaintiff's
franchise from Okeechobee County.
6. The provisions of Chapter 86, Florida Statutes, section
86.091, provide:
In any proceeding concerning the validity of a County or
Municipal charter, ordinance, or franchise, such County
or Municipality shall be made a party.
7. Further, it is clear that:
"It is essential that the Defendant in a declaratory judgment
action be the party or parties whose interests will be
affected by the decree. All persons having an interest in
the subject matter should be before the Court."
Jacobs & Goodman P.A. vs. McLin, Burnsed, Morrison, Johnson
& Roebuck, P.A. 582 So.2nd 98 (Fla. 5DCA 1991); and Miller
v. Miller 151 So.2nd 869 (Fla. 2 DCA 1963).
8. The allegations of Plaintiff's complaint state they derive
rights under the franchise ordinance with Okeechobee County, and
that they require the court's determination to ascertain those
rights. As this franchise ordinance ostensibly grants a certain
service area to Plaintiff, any determination by the court to the
contrary would necessarily affect the rights or interests of
Okeechobee County in its ordinance. Therefore, the County of
Okeechobee would be an indispensable party, and must be joined by
Plaintiff.
III.
9. The complaint of Plaintiff should be dismissed, as the
Plaintiff, by its own pleading, is not a system, work, project, or
utility of similar character to that of Defendant.
10. The statutory language on which Plaintiff bases its claim
for declaratory relief is set forth in F.S. 180.06 (9), which
states:
"However, a private company or municipality shall not
construct any system, work, project or utility authorized
to be constructed hereunder in the event that a system,
work, project or utility of a similar character is being
actually operated by a municipality or private company
in the municipality or territory immediately adjacent
thereto, unless such municipality or private company
consents to such construction ".
11. The allegations of Plaintiff's complaint make a bare
assertion that "Plaintiff has the ability and is serving in excess
of two thousand members in the Overlap Area, which is part of the
service area Plaintiff has claimed since 1965" (at paragraph 14).
However, other pleadings make it clear that Plaintiff is not a
system or utility of "similar character ", as defined in Chapter
180. The complaint states:
-at paragraph 4: "Since 1965, Plaintiff has been obtaining a
supply of water from Defendant under a series of bulk water
wholesale agreements."
- at paragraph 6: "Plaintiff intends and has engineering plans
to build a 1.5 million gallon per day water treatment facility to
supply water to its members."
- at paragraph 8: "Plaintiff has applied for a water
consumptive use permit from the South Florida Water Management
District."
- at paragraph 14: "When its new plant is built, Plaintiff will
have the ability to serve the projected growth of new connections
in the Overlap Area for the next ten years."
12. The allegations of the complaint, in their best light,
illustrate that Plaintiff is a water customer of Defendant, who has
no present ability, nor any in the foreseeable future, to serve any
customers potable water, absent the purchase of such water from
Defendant.
13. The court's interpretation of Chapter 180.06(9) has been
held to be that it only prohibits direct encroachment by one
utility provider into an operating area already served by another.
Ortega Utility vs. City of Jacksonville 564 So.2nd 1156, 1158 (Fla.
1 DCA 1990).
14. The flaw in Plaintiff's complaint is two -fold: First, by
their own pleadings, they are not a competing utility of a similar
character to Defendant; and Secondly, by their own pleadings, they
have no present ability to serve the area in dispute, and but a
hope of such service ability some unknown years in the future, in
the event they are ever able to construct a facility.
15. As previously discussed herein, the test of whether a
viable request for
whether Plaintiff
entitled to make a
With the pleadings
declaratory relief is before the court is not
is likely to prevail, but whether they are
claim for relief at all. City of Homestead, id.
before the court, Plaintiff seeks a declaration
that because they are a competing utility, and have the ability to
serve their customers,
determine their service
they are entitled to such declaration to
area. However, the pleadings make it clear
Plaintiff is not a competing utility of similar character, nor does
it have the ability to serve any customers without purchasing water
from Defendant. Therefore, as a matter of law, Plaintiff is not
entitled to a declaration of its rights under F.S. Chapter 86.
IV.
16. The complaint of Plaintiff should be dismissed by
court for failure to exhaust administrative remedies.
17. The Plaintiff, as alleged in their complaint, has a
pending application before the South Florida Water Management
the
District for a consumptive use permit, to initiate the construction
of a well water supply, and distribution plant to serve its claimed
service area with potable water.
18. The application to the District well predates the filing
of this lawsuit. However, since the initiation of the lawsuit, on
August 3, 1993, the Plaintiff has furnished the District additional
information, particularly on August 19, 1993, which purpose is to
...enable the District to address a request for service area
modification relative to the above referenced application." The
information furnished on that date included a revised service area
map, and revised population projections for the new requested
service area. (copy of letter attached, exhibit A).
19. It is evident from the application, and documents
furnished subsequent to the initiation of this lawsuit, that
Plaintiff is actively seeking an administrative determination to
obtain a consumptive use permit, and a service area designation
from the District.
20. The courts have held that while Section 120.73, Florida
Statutes stands for the proposition that nothing in the
administrative procedures act shall be construed to divest the
circuit courts of jurisdiction to render declaratory judgments
under the provisions of chapter 86, the courts have consistently
held that if administrative agencies are to function and endure as
viable institutions, courts must refrain from promiscuous
intervention in agency affairs, except for the most urgent reasons.
Odham v. Formost Dairies, Inc. 128 So.2d 586, 593, (Fla. 1961).
This reasoning is carried through in the recent decision of Gulf
Pines Memorial Park, Inc. v. Oaklawn Memorial Park, Inc. 361 So.2d
695, 699 (Fla. 1978) wherein the court observed:
...as a general proposition, the circuit court should refrain
from entertaining declaratory suits except in the most
extraordinary cases, where the party seeking to bypass usual
administrative channels can demonstrate that no adequate remedy
remains available under Chapter 120." See also: School Board of
Leon County v. Mitchell 346 So.2d 562 (Fla. 1DCA 1977).
21. Apparent from the complaint of Plaintiff, and the attached
letter of August 19, 1993 from the agent of Plaintiff to the Water
Management District, the agency has not yet passed upon the
consumptive use permit application of Plaintiff, nor their request
for a service area modification. Therefore, administrative remedies
have not been exhausted, and there is nothing contained in
Plaintiff's pleadings which would indicate that they do not possess
adequate remedies under such administrative procedures.
WHEREFORE, for the reasons expressed herein, Defendant City of
Okeechobee, Florida respectfully requests that the complaint of
Plaintiff be dismissed.
SUBMITTED this day of August, 1993.
I HEREBY CERTIFY that a true copy of the foregoing was
furnished by U.S. Mail this day of August, 1993 to: Burton C.
Conner 301 N.W. 5th St. Okeechobee, Florida 34972; and Vickers,
Caparello, Madsen, Lewis, Goldman & Metz, 2000 Palm Beach Lakes
Blvd. Suite 900, West Palm Beach, Florida 33409.
John R. Cook
202 N.W. 5th Avenue
Okeechobee, Florida 34972
(813)467 -0297
Florida Bar 262951
03=23-93 12:09PM FROM SFWMDREGULATION DEPT
Lh
GM0P1901
HANDCARRY
LINDAHL. 13N()WNING, FEI' FAR( FIEL1.S'I Vl)M, INC.
t't )Vhl'I I INt ; L`(11Vl 1 RS. I'1 ANNI P:` ` wtJk \'I 1
yValow; R limp AIM
agaD
Aus 9 1993
t./"J':1- k "d
August 19, 1993
P.N. 92 -037
Mr. Thomas( Colios, Rydrogeologist
Water Use Division, Regulation Department
South Florida Water Managemeet District (District)
3301 Gun Club Road
West Palm Beach, Florida 33416 -4660
RE: Application *921204 -10; Request For Additional Information
Okeechobee Beach Water Association, Inc. (OBWA)
Okeechobee and Glades Counties
Dear Mr. Colios;
This correspondence is in response to the District's letter, dated
August 12, 1993 (copy attached) requesting additional information
to enable the District to address a request for service area
modification relative to the above referenced application. This
information is provided by Lindahl, Browning, Ferrari & He11etrom,
Inc. on behalf of OBWA.
The additional information /response is provided in the same order
as'the Request, as follows:
1. A revised service area map is enclosed which delineates the
new requested service area and the City of Okeechobee 201
Facilities Planning Area (201 Ares..) boundary; the new
requested service area includes the areas indicated as OBWA's
existing customer base plus those areas outside the 201 Area
within the OBWA Service Area Boundary in Okeechobee County and
Glades County,
2, Enclosed are revised population projections for the new
requested service area and a water demand allocation based on
OBWA's existing customer base within the 201 Area and the
existing and projected demand within the remaining areas
outside the 201 Area in Okeechobee and Glades counties.
14 7', I c 11 f It I I!t 1\ "' !l II +III A, II 1 441,11.0" !�
! II/ ION IYR1.\ 1. 1clitriI !\', \I +I1,14t111IIINi:lilt "•in' +:.Ili 1\ \.,•411"1-111 cr.2
03,-23 -93 12:09PM FROM SFWMDREGULATION DEPT
Methodolog
Pus
The revised population projections were derived by OBWA based on
the existing number of water meters in the 201 Area, they existing
number of meters in the remaining service area and a projection' '(.
growth in the non -201 Areas. A meter was assumed to represent n
typical household unit. A typical household unit wai:
conservatively assumed to represent 2 . 5 people, This persons per
household unit number is less than the County of Okeechobee
Comprehensive Plan projection of 2.67 persons per household in 1995
and 2.62 persons per household in 2000.
The current number of ODWA meters in the 201 Area Is 2043 meters,
The current number of OBWA meters in the remaining Okeechobee and
Glades County service area is 1184. Total OBWA existing customer
base is represented by 3207 meters (household units) . The current
equivalent population of the existing OBWA customer base was
therefore estimated to be equivalent to'8018 persons.
(2.5 persons /household)(3207 meters) s 8018 persons
Future demand projections were based on the historical water
consumption 'of 85 gpcd, which is the average of residential and
commercial use combined,, Separate projections were made for
Okeechobee County and Glades County. No growth was assumed within
the 201 Area; only the existing customer base population in the 201
Area was carried forward each year up to the year 2005 end of the
projection period.
The increase in connections (meters) in Glades County was projected
at one percent (1%) per year. In the areas outside the 201 Area in
Okeechobee County, the increase in connections (meters) was
projected at one percent (1%) per year for 1994, 1995 and 1996 and,
at three percent (3%) per year for the remaining projection period,
This assumed the new water treatment plant will allow an increase
in connections to the OBWA system starting in 1997.
Please contact LBF &Ii or OBWA should the District have any questions
or need more information, Thank you for you effort to insure this
matter le placed before the Governing Board in September.
�.•�� 4 ^' rit
Ir V ..y I w IM.
M)9 19
,I.I 41 11,4011
GKM /smt
Enclosures
xe; Lie, Fortner /OBWA
Steve Walker, Ise.,
Very truly yours,
LIND L, BROW►TNG, FERRARI &
HE ROM
s
E
•
rris
Engineer
onmerztal Services
June 2, 1993
MEMO
To: John Drago
From: John Cook
Re: OBWA service area
John:
PREPARED IN ANTICIPATION OF LITIGATION
NOT A PUBLIC DOCUMENT
I net with Burton Conner today concerning the CBWA service
area, and enclose a colored map of the result--; of niar on.
They would like to Lescive the entire service area question,
as would I, to send on to SFWMD. This mecp represents some Qeneral
ideas we had, knowing that there would be refinement, and approval
of each board. All it is, is a starting point.
They would essentially give up the blue area Nest of 441 cveL
to Ferrell road; the blue area North of Taylor Creek; and
everything East of their current service area, inuluding Kinu's
Bay: They paid $50,000.00 for the plant, which has extra capacitv:
and would sell it to us for the same orice.
We would concede that portion in yellow West of Ferrell road,
being the Davis property. Their plant is goin,a to be on this
property, and they feel it would make sense to serve that parcel.
It appears that Jack Wolf also wants them to serve the area around
the wellfield site, but T told Buytnn that w'ruld he a hard sell.
'e would concede that portion ir . yellow being Jack Coker's
property, with an uncertain dividing line below K-Mart along the
East side of 441 going to the City. Fo: ease of description, they
would serve the afeas in yellow just to the East of their present
service area maiked pinn. Everything South on Hwy. 73 from
Ferrell road would remain theirs.
We aiso agreed to reciprocal tiansmission easements across
each others area :f necessary to reach an area we would serve:
Burton also -relayed to me that he talked to Cassels this
morning, advised him of our meeting, and Cassels replied whatever
we agreed to was fine with him
As mentioned, this is just a suggestion at this pcnt.
lowever, an agreemeTat similar this is probably going to be
required to avoid litigation, end to be fair to all sides-
1 anticipate meeting with Durten ahOl :assels on June 7, so get
back with me at your earliest convenience:
Jcu R. Cook
BURTON C. CONNER, P. A.
ATTORNEY AT LAW
301 NORTHWEST FIP'Tii STREET
OKT:P:CTIO13111E. FLORIDA 34972
September 3, 1993
IIonorable Judge Fennelly
315 Courthouse Addition
218 South 2nd Street
Fort Pierce, Florida 34950
Attention: Eula
Re: Okeechobee Beach Water Association v. City bf Okeechobee
Case No: 93- 555 -CA
TEA j?1'11()NE
181.31 407•RPOO
FACSIMii.fl
01131 407-0310
Dear Judge Fennelly:
Attached is a copy of the Complaint and Motion To Dismiss filed in the above case, as well
as the Certification of Counsel Regarding Motion to Dismiss. Could you please authorize
Eula to set a hearing and advise me of the date and time so I may prepare a notice of
hearing.
Thank you for your attention to this matter.
Sincer / -'
Orli
URTON C. CONNER
BCC\dnc
Enclosures: As stated
cc -John Cook
IN THE CIRCUIT COURT IN AND FOR OKEECHOBEE COUNT, FLORIDA
CASE NO: 93- 555 -CA
JUDGE FENNELY
OKEECHOBEE BEACH WATER ASSOCIATION, INC.,
Plaintiff
v�
CITY CAF OKEECHOBEE, FLORIDA,
Defendant.
CERTIFICATION BY COUNSEL
REGARDING MOTION TO DISMISS
The undersigned counsel certify that they have conferred and attempted in good
faith to resolve all issues in Defendant's Motion To Dismiss without a bearing. Counsel
have been unable to resolve all of the issues and a hearing is necessary.
Counsel estimate that the hearing will require 45 minutes.
TON C. CONNER
Attorney for Plaintiff
Fla. Bar No: 0254551
301 Northwest 5th Street
Okeechobee, Florida 34972
(813) 467 -8800
Date: /7/S(93
GrIc
JOHN R. COOK
Attorney for Defendant
Fla. Bar No: 262951
202 Northwest 5th Avenue
Okeechobee, Florida 34972
(813) 467 -0297
Date: 9 31 `'1 -3
[Preliminary Draft - Not for Reproduction]
GOVERNANCE ALTERNATIVES TO PROVIDE REGIONAL
WATER AND WASTEWATER SERVICES AND FACILITIES
TO THE URBANIZED AREAS OF SOUTHERN OKEECHOBEE COUNTY
PHASE I
SUMMARY REPORT OF FINDINGS AND RECOMMENDATIONS
Prepared for:
Okeechobee County, Board of
County Commissioners
•I
By:
Nabors, Giblin & Nicke
Barnett Bank Buildir
315 South Calhoun
Tallahassee, Flor
EXECUTIVE SUMMARY
[to come]
I
INTRODUCTION
This report (the "Phase I - Report ") has been prepared for the
Okeechobee County Board of Commissioners (the "County ") by Nabors,
Giblin & Nickerson, P.A., Tallahassee, Florida, (the "Firm ") to
review potential governance alternatives for the creation,
acquisition, construction and operation of a regional water and
wastewater utility system to serve urbanized areas within the
southern portion of Okeechobee County. This Phase I report
identifies governance alternatives for a regional utility system,
makes recommendations to the County Commission, provides an
overview of existing and future water and wastewater service along
the north shore of Lake Okeechobee and identifies certain typical
funding alternatives.
This report, prepared in conformance with our correspondence
to the County dated February 24, 1992, has been drafted to provide
assistance and advice to the County Commission in making a
determination of the feasibility of providing regional water
service to certain portions of the unincorporated area of
Okeechobee County and Glades County.
Although our endeavor was to initially concentrate on the
legal and limited financial aspects required to review, analyze,
implement a governing structure and ultimately finance the
provision of water treatment and distribution infrastructure, it
became apparent at the outset that consideration of the delivery
of regional wastewater treatment and transmission service to both
incorporated as well as portions of the unincorporated area was a
1
fundamental consideration. Accordingly, many aspects of our
analysis, out of practical necessity, took a more global view of
the provision of both water and sewer services in the entire
southern and more urbanized area of Okeechobee County.
After several discussions with County management in March, the
Firm decided not to formally engage the assistance of a
governmental consulting firm for completion of this Phase I Report.
The Firm has, however, received the gracious input and informal
analysis from several professionals, including but not limited to
representatives from the City of Okeechobee, the County, the
Okeechobee Beach Water Association and various citizens of
Okeechobee County.
Purpose and Scope
Pursuant to the terms of this engagement, the Firm has
reviewed an extensive list of reports and other written materials
including, but not limited to material provided by the City of
Okeechobee, the County, the Okeechobee Beach Water Association,
Inc., and the department of Environmental Regulation.
To further familiarize ourselves with the issues involved, we
also conducted a series of in- person and telephone interviews with
local officials and citizens to assist in determining the overall
needs of the community and the service objectives of the various
jurisdictions.
We have also briefly surveyed the two primary water service .
delivery providers, the City of Okeechobee and the Okeechobee Beach
Water Association. Although there are at least 50 smaller package
2
water treatment plants and 22 package wastewater treatment plants
that may be affected by the provision of regional services, it was
determined not necessary to meet with these owners or operators at
this time to accomplish the overall objectives of this Phase I
report. Information received from the Florida Public Service
Commission indicates that the responsibility for regulating these
smaller water and sewer package plant operations has never been
transferred away from the County. These smaller providers will
require a significant amount of attention and consideration at a
later date from any central utility provider.
As a result of the Firm's requests for information and various
interviews it was relatively easy to identify the potential service
areas, both short and long term for the subject urbanized areas.
The difficulty arises in determining which portions of these areas
are best served by the City of Okeechobee, the Okeechobee Beach
Water Association or the County. Accordingly, it is premature and
would not be meaningful for us to develop a time line or critical
path for the creation of central utility system as part of this
Phase I - Report.
We have also generally reviewed financing and debt capacity
considerations for the provision of water and sewer utilities as
they relate to the City of Okeechobee, the County, Okeechobee Beach
Water Association, and the more global approach of an overall
utility authority.
In keeping with the primary focus of this Phase I report,
after we collected information unique to Okeechobee County, we
3
conducted research to identify and assess governance alternatives
for the provision of central utilities and then analyzed various
options available to the community as a whole.
As a footnote to this introduction, it should be emphasized
that the regional approach taken by this Phase I Report became
quickly apparent to us when we conducted a series of in- person
interviews in Okeechobee. Such approach addresses the issues of
providing central water and sewer to not just the City of
Okeechobee, or the City's water service area, or the area served
by the Okeechobee Beach Water Association, but the entire urbanized
area around the northern rim of Lake Okeechobee. This area
comprises the economic and social hub of the "Okeechobee Community"
and as such its problems associated with water and sewer service
transcend artificial jurisdictional boundaries. Accordingly, its
solutions should also. This Phase I Report has been prepared with
that thought and direction in mind.
Identification of the Study Area
Okeechobee County is located on the north shore of Lake
Okeechobee. The City of Okeechobee is the county seat of
Okeechobee County and is the county's only incorporated area. The
City of Okeechobee is located approximately 60 miles northwest of
Palm Beach and 95 miles from Boca Raton at the crossroad of
highways U.S. 441, U.S. 90, and S.R. 70. The City is 31 miles
east of I -95 and the Florida Turnpike. Okeechobee County has
approximately 31,000 people, and the City of Okeechobee has
4
approximately 5,100 people. Most of the population in the County
resides relatively close to the lake .shore. Growth rates in
Okeechobee County are typically low and generally, the population
is not increasing as fast as the rest of the state'. The community
as a whole, including the incorporated area can be characterized
as relatively rural community with a significant increase in
seasonal traffic and population during the dry and more temperate
winter season. The rural character of the area lends itself to the
relatively modest housing and commercial development. The area's
economy is primarily dependent upon agricultural activities and
limited tourism, retirement and related support services. Table
1 shows the growth in population and housing units for the area,
with the Okeechobee Beach Water Association units shown separately.
Table 1. Population/Housing Units
City County 08WJA
Year Pop. Units Pop. Units Pop. Units
I
1990 4937 1936 24739 11343 6484 2973
1995 5240 2055 30516 13998 7347 3390
2000 5536 2171 34115 15648 8564 3930
2005 5840 2290 36173 17225 n/a n/a
2010 6135 2406 39073 18606 . n/a n/a
Estimates based on 2.18 persons per unit.
To assist in defining the boundaries of a potential water and
sewer utility service area certain information contained in the
Okeechobee County Property Appraiser's master appraisal file will
ultimately need to be extracted and reviewed for the contiguous
areas contained within the bounds of the area identified as "Urban
Residential Mixed Use," on the Okeechobee County Generalized
'Bureau of Economic and Business Research, Florida Statistical
Abstract, page 47 (1991).
5
Conceptual Future Land Use Map2 (the "Study Area "). This area is
effectively • the urbanized area of Southern Okeechobee County and
includes the City of Okeechobee. This Study Area, located on the
north shore of Lake Okeechobee, includes approximately 51 square
miles of property. Use of information from the Property Appraiser
files will be fundamental if future special assessments or taxes
'are anticipated to be collected in the same manner as ad valorem
taxes are collected. The Study Area will need to be better defined
and described as certain policy decisions are made and cooperation
between the current jurisdictions and service providers evolves.
2See Okeechobee County Comprehensive Plan, Okeechobee County
Generalized Conceptual Future Land Use Map, Okeechobee County
Ordinance No. 92 -5.
6
GOVERNANCE STRUCTURE
A governing entity is needed to consolidate, refurbish, expand
and deliver water and wastewater utility services in the Study
Area. Such an entity will need to provide a conduit for funds (1)
to retire existing and future debt, (2) to pay for the operation
and maintenance deficiencies remaining after utilization of fair
and equitable rate revenues and (3) to generate revenues from new
users of a fair share basis. The creation of such a governance
entity is dependent on a resolution of numerous policy issues:
1. Is the governing body of the governing entity to include
elected or appointed officials or a combination of the two?
2. If the governing body is to be appointed, who makes the
appointments?
3. Is the annual budget of the governing entity subject to
approval by the City or the County, or both, and to what extent
does a requirement of County approval affect the county purpose
mi�llage authority of the County?
- 4. Does the entity possess the taxing or revenue generating
capacity to provide needed capital and annual operation and
maintenance costs?
To the extent ad valorem taxes are to be utilized as a funding
source, certain Florida constitutional and statutory constraints
should be noted.
Article VII, Section 9(b), the Florida Constitution, requires
special district ad valorem tax millage to be authorized by law and
approved "...by vote of the electors who are owners of freeholds
7
therein not wholly exempt from taxation." Likewise, Article VII,
Section 12, the Florida Constitution, requires approval "...by vote
of the electors who are owners of freeholds therein not wholly
exempt from taxation..." prior to the issuance of any indebtedness
payable from ad valorem taxation that matures more than twelve
months after issuance. A discussion of the cases regarding
freeholder elections is included in this report under the caption
"LOCAL REVENUE SOURCES -- Ad Valorem Taxes."
If the status of a special district is classified under
Section 189.4035, Florida Statutes, as a "dependent" special
district, any authorized special district ad valorem millage is
aggregated with the countywide millage levied by the County within
a statutory 10 mill limitation for county purposes.3 Section
189.403(2) defines a special district as "dependent" if it meets
one of the following criteria: (1) its governing body is identical
to that of the County or the City; (2) all members of the governing
body are appointed by the County or the City; (3) the members of
its governing body can be removed during their unexpired term by.
the County or the City; or (4) its budget requires approval of or
can be vetoed by the City or the County.
As discussed subsequently, to the extent the County levies
taxes within a municipal service taxing unit for a water and
wastewater utility system, the millage is included within the 10
mill limit for municipal purposes levied by the County within the
\' 3Section 200.001(8)(d) and Section 200.071, Florida Statutes.
8
unincorporated area.4 The level of millage levied within the
taxing unit boundaries would thus limit the ad valorem taxing
capacity of the County in the unincorporated areas since under such
constitutional and statutory millage limitations no one parcel of
property can bear ad valorem taxation in excess of 10 mills for
municipal purposes. In the event the boundaries of a municipal
service taxing unit includes municipal areas with the consent of
the City, the millage levied within the taxing unit would likewise
limit the ad valorem taxing capacity of the City.
Finally, it should be noted that Article VII, Section 2, the
Florida Constitution, requires all ad valorem taxation to be at a
uniform rate within each taxing unit. As a consequence of such
constitutional uniformity provision, a levy of ad valorem taxes is
limited to the following geographic areas: (i) the established
boundaries of a municipal service taxing unit; (ii) the entire
boundaries of the County or the City; or (iii) the boundaries of
a special district if the ad valorem millage is approved by the
electors. Such constitutional uniformity provisions apply; to ad
valorem taxes only and are inapplicable to the imposition of
special assessments. The Florida case law criteria for the
imposition of special assessments is discussed subsequently.
4Article VII, Section 9(b), the Florida Constitution;-and
Section 200.071(3), Florida Statutes.
9
Governance Alternatives
There are several alternative governing entities that could
be created for the Study Area:
• a municipal service benefit or taxing unit,
• a special district created by special act,
• a special district created by general law,
• implementation by County ordinance,
• joint delivery of service by interlocal agreement, and
• a special district created under home rule.
/Municipal Service Benefit or Taxing Unit
Section 125.01(1)(q), Florida Statutes, authorizes the County
to create municipal service taxing or benefit units within all or
part of the unincorporated areas to provide "...water, wastewater
and sewage collection and disposal... and other .essential
facilities and municipal services... ". This section goes on to
provide that subject to the consent of the affected city, "given
either annually or for a term of years, the boundaries of a
municipal service taxing or benefit unit may include all or part
of the boundaries of a municipality in addition to all or part of
the unincorporated areas."
Section 125.01(1)(r) expressly states that there shall be no
referendum required for the levy by a county of ad valorem taxes
within a municipal service taxing unit. Section 125.01(2) provides
that the board of county commissioners shall be the governing body
pf any municipal service taxing unit or benefit unit.
10
A municipal service taxing unit is not constitutionally or
functionally a special district.5 It is purely a mechanism by
which a county can fund a particular service from a levy of ad
valorem taxes not countywide but within all or a portion of the
unincorporated areas. It is a tax equity tool available to a board
of county commissioners within its legislative discretion to place
the burden of ad valorem taxes upon a geographic area less than
countywide to fund a particular service. In terms of function and'
accountability it is no different than any other revenue source
appropriated and budgeted by a county.
The distinction between a municipal service taxing unit and
municipal service benefit unit is that "benefit unit" is the
correct terminology when the mechanism used to fund the county
services is derived through service charges or special assessments
rather than taxes. Again, both units are similar in that a
municipal service benefit unit is a mechanism available to a board
of county commissioners to identify a precise geographic area in
the unincorporated area in which to impose such service charges and
special assessments and is not a special district in function or
status. The municipal service benefit unit is utilized within the
county budget to account for such special assessments and service
charges to insure that such funds are used to provide the county
services for which they were imposed.
5Gallant v. Stephens, 358 So.2d 536 (Fla. 1978).
11
METHOD OF CREATION: By ordinance of the County, with
consent by ordinance by affected municipality if unincorporated
areas are included.
Special District Created by Special Act
Section 189.404, Florida Statutes, adopted under the
provisions of Article III, Section 11(a)(21), the Florida
Constitution, prohibits the creation of independent special
districts by special acts or general laws of local application
unless they conform to the stated statutory criteria and minimum
requirements.6 An "independent" special district is defined in
Section 187.403(3) as a special district that is not defined as
dependent under the criteria of Section 189.403(2). Section
189.4041 provides that the charter for the creation of a dependent
special district shall be adopted only by "... ordinance of a
county or municipal governing body having jurisdiction over the
area affected."
Except for the Section 189.404 criteria and minimum
requirements, a special act creating an independent special
6Section 11(a)(21), Article III, the Florida Constitution,
prohibits a special law or general law of local application on:
... any subject when prohibited by general law
passed by a three - fifths vote of the
membership of each house. Such law may be
amended or repealed by like vote.
Historically, there has been a difference between the Florida House
of Representatives and the Florida Senate on the interpretation of
this constitutional provision. The House position is that a
special act passed by a "like vote" of three - fifths repeals a
general law prohibition. The Senate position is that the general
law prohibition must be repealed by a three - fifths vote prior to
the consideration of the inconsistent special act.
12
district can be uniquely crafted to provide the authority and
organizational structure desired. It should be noted that Chapter
189, Florida Statutes, provides the procedure, not the
authorization, for creating special districts. A special act
independent special district can authorize the levy of ad valorem
taxes within a stated millage cap subject to elector approval.
Article VII, Section 9(a), the Florida Constitution. However, it
should be clearly recognized that a special act cannot authorize
a special district to impose or levy any other tax. All forms of
taxation other than ad valorem taxes are preempted to the State
except as provided by general law.7
A major disadvantage of a special act special district is that
any charter change requires a supplemental special act adopted by
the Florida Legislature.
METHOD OF CREATION: By special act approved by the
Okeechobee County Legislative Delegation and adopted by the Florida
Legislature.
Special District Created by General Law
The prohibited special law provisions of Article III, Section
11, the Florida Constitution, recognize a general law
classification of special districts in Section 11(b) as follows:
(b) In the enactment of general law on other
subjects, political subdivisions or other
governmental entities may be classified only
on a basis reasonably related to the subject
of the law.
7 Article VII, Sections 1(a) and 9(b), the Florida
Constitution.
13
Thus a general law may authorize the creation of a special district
to perform a specialized function. If applicable less than
statewide, the counties to which the general law special district
classification applies must be reasonably related to the subject
of the law or the nature of the special district.
Examples of general law special districts are juvenile welfare
independent special districts authorized under Section 125.901,
Florida Statutes; county health care special districts authorized
under Section 154.331, Florida Statutes; regional transportation
authority authorized under Section 163.567, Florida Statutes; and
regional water supply authorities created under Section 373.1962,
Florida Statutes.8
The local mechanism creating the special district can be
individually tailored. Examples of local creation options are:
(i) ordinance adoption by County; (ii) ordinance adoption by County
with the consent of the City; or (iii) interlocal agreement between
the City and the County. Since the enabling act is a general law,
selected tax revenues could be included as local tax options of the
8Unfortunately, Chapter 153, Part II, Florida Statutes, cited
as the County Water and Sewer District Law, was enacted well before
the 1968 Constitution. Chapter 153 does allow for the provision
of water and sewer to unincorporated areas, but does not appear to
provide viable general authority for creation of a special district
that could be tailored to local needs. Chapter 153 also appears
to have been overlooked by_the Legislature when it passed Chapter
189, Florida Statutes, the Uniform Special District Accountability
Act of 1989. Use of Chapter 153 would require a legislative
amendment to include municipal areas and other changes to obtain
consistency with Chapter 189. Due to archaic language, Chapter 153,
does not appear to be a viable governance alternative.
14
governing board of the special district or the creating general
purpose local government.
A major disadvantage of a general law special district is the
need for the adoption of a general act by the Florida Legislature.
In addition, because the impetus would be from Okeechobee County,
approval by the Okeechobee County Legislative Delegation would be
a practical requirement.
METHOD OF CREATION: By general act approved by the
Okeechobee County Legislative Delegation and adopted by the Florida
Legislature.
Implementation by County Ordinance
Article VIII, Section 1(f), the Florida Constitution, provides
that a non - charter county ordinance in conflict with a municipal
ordinance shall not be effective within the municipality to the
extent of such conflict. Okeechobee County is a non - charter
county.
Under this power of self government the County could fund
utility improvements county -wide by the imposition of water and
wastewater capital and maintenance assessments by ordinance.
However, because of the preemptive power of the City to pass a
conflicting ordinance, such option is not practically or
financially feasible.
METHOD OF CREATION: By county ordinance.
15
Joint Deliver of Service b Interlocal Agreement
Part I, Chapter 163, Florida Statutes, provides for
intergovernmental cooperation and the exercise of joint powers by
the City and the County through the execution of an interlocal
agreement. Section 163.01(5) enumerates the terms and conditions
of the interlocal agreement and specifically provides that such
agreement may provide for the creation of a separate legal entity.
Section 163.01(7)(a) also specifically provides that the interlocal
agreement may create "a separate legal or administrative entity to
administer" the agreement. However, Section 163.01(7)(c) limits
the power of any separate legal or administrative entity by
providing that such entity shall not possess the power to levy any
tax, issue any bonds, or obligate financially any participating
governmental unit. As a consequence, without additional
legislative authorization, the creation of a separate legal or
administrative entity by interlocal agreement is not a viable
option to construct and maintain a regional utility system.
An interlocal agreement is a viable option to obtain City
consent to the imposition of special assessments by the County
under the implementation by county ordinance option discussed
above. However, the presence of an interlocal agreement would not
eliminate the major disadvantage of the county ordinance option,
i.e., that the utility system becomes essentially a County project.
METHOD OF CREATION: By County ordinance and execution
of interlocal agreement between the City and the County.
16
Special District Created Under Home Rule
Section 125.01(5)(a) authorizes the County to create a special
district to include both incorporated and unincorporated areas
subject to the approval of the City. Once created, each special
district has the power to provide municipal services and facilities
...from funds derived from service charges, special assessments,
or taxes within such district only."
The special district would be classified as "independent" or
"dependent" under Chapter 189, Florida Statutes, depending on the
governing board and budget adoption provisions provided in the
authorizing ordinance. Section 189.404(4)(b), Florida Statutes,
expressly recognizes that a county may create an independent
special district "...as otherwise authorized by general law."
Section 189.4041, Florida Statutes, provides that a charter for the
creation of a dependent special district shall be adopted only by
ordinance of a county or municipal governing body having
jurisdiction over the area affected.
Section 125.01(5)(b) requires that the governing body of the
special district be composed of county commissioners and further
provides that the governing board may include elected officials of
the affected municipality. The basis of governing board
apportionment is required to be established in the ordinance.
The major advantage of a home rule special district is the
retention of local control in the drafting of the initial charter
and any subsequent amendments. The statutory requirement that
members of the governing board are required to be county
17
commissioners and city council members may also be an advantage
under the current circumstances.
METHOD OF CREATION: By ordinance of the County consented
to by ordinance of the City.
Governance Recommendation
The recommended governing structure for a water and wastewater
utility system to serve the Study Area is a home rule special
district. A special district charter adopted by an ordinance
agreed to by both the City and the County will have broad
acceptability and will permit a locally designed charter with
flexibility for effective implementation. In addition, charter
provisions can be modified or amended and special district
boundaries realigned locally by ordinance when needed. A home rule
special district would also have the power to serve the eastern
reaches of Glades County,- now served by the Okeechobee Beach Water
Association,ivia interlocal agreement.
It is anticipated that the statutory requirement that the
governing board be composed entirely of county commissioners and
city council members may not be acceptable. As a consequence, we
recommend that Section 125.01(5)(b), Florida Statutes, be amended
during the 1993 Regular Legislative Session to allow the members
of the governing board to be wholly or partially appointed by the
City or the County. In our judgment, such general law amendment
would not be controversial and is possible. Since the other viable
options of a special act or general law special district also
require legislative action, this need for legislative action is not
18
considered to be a major impediment. Because of the early start
of the 1993 Regular Legislative Session, the complexity of
obtaining approval of a special act or general law special district
is much greater; however, seeking a minor amendment to Section
125.01(5)(b) has a reasonable possibility of success.
In addition, relying upon an existing general law mechanism
for the creation of a special district also facilitates general law
authorization of a tax revenue source since the tax to be
authorized can be made available only to a special district created
under Section 125.01(5)(a), Florida Statutes, to provide utility
facilities.
Development of Local Consensus
It is of fundamental importance that the City, the County and
the Okeechobee Beach Water Association agree in concept on
participation in a consolidation of facilities and services in the
Study Area. I To that end it would be advisable to adopt a non-
binding agreement to identify and generally outline the financial
and policy details of consolidation. Such an endeavor would
require various community leaders and elected officials address the
issues involved in a statesmanlike manner and fashion an objective,
fair and viable resolution that serves the entire community, not
just one fraction or jurisdiction.
Development of District Boundary Description
In addition to the development of a local consensus,
implementation of any of the foregoing alternatives will require
development of a specific boundary description of the area to be
19
encompassed by the district. For purposes of this report, most
of the whole sections affected by the Study Area, comprising
approximately 51 square miles were identified.. The information
was compiled by reviewing the Okeechobee County Property
Appraiser's master appraisal file. Since distinguishing properties
within a specific section requires individual coding of the
designated parcels and computer manipulation of information, this
estimation is a very crude representation of the taxable value from
the 51 identified sections.
The delineation of actual district boundaries requires the
initial exercise of policy judgment by the City, County and
Okeechobee Beach Water Association. This report outlines the
general criteria to be applied and identifies relevant factors to
be considered. Upon receipt of further direction, specific
district boundaries can be delineated and parcels located in
sections partially within the district boundaries will be
individually coded to conform the Study Area to the actual district
boundaries.
The general criteria for the determination of district
boundaries is inclusion only of those properties which are expected .
to be served by or otherwise benefit from the creation of a
regional utility system. Relevant factors for consideration
include:
• the reasonably anticipated service area,
• natural boundaries,
20
• State, regional and local comprehensive plan
requirements, and
• the extent of homogeneous land use.
The concept of homogeneous land use is intended to classify
properties with a common interest in the development and operation
of the regional utility system. The extent of homogenous land use
is now driven by local comprehensive plan requirements. This was
the primary factor in identifying the Study Area.
On the other hand, the anticipated service area will be driven
by the probable demands of any available State or federal funding.
It should come as no surprise that State or federal subsidization
will be required if central water and sewer is to be developed in
the Study Area. As well, if State or federal funds are available,
they will no doubt be tied a regional approach that leads to
sewering the Study Area in order to reduce pollution of Lake
Okeechobee aid its tributaries.9
The Study Area boundaries are intended to illustrate the
application of the factors described above and are not intended to
limit any policy judgment ultimately made by a home rule special
district. It is anticipated that a workshop -type session would be
conducted with the City, County and Okeechobee Beach Water
Association to discuss and determine, among other matters, the
actual district boundaries.
9For this reason, the disparity in rates between incorporated
and unincorporated ratepayers and lack of governance participation
by the County Commission, we did not suggest Chapter 180, Florida
Statutes, as a viable governance alternative.
21
OVERVIEW OF PRESENT SERVICE TO STUDY AREA
In Okeechobee County, the provision of central water and
wastewater are critical issues requiring immediate and long term
attention.10 The majority of the population in Okeechobee County
is located along the north shore of Lake Okeechobee. The City of
Okeechobee is the single largest provider of potable water to the
10See Okeechobee County Comprehensive Plan, Okeechobee County
Ordinance No. 92 -5:
Potable Water and Sanitary Sewer
Objective 83: Okeechobee County shall coordinate with providers
of public supply potable water and sanitary.sewer
facilities, and with appropriate state or regional
agencies, to: maximize the use of existing
facilities; coordinate the extension of facilities
in unincorporated areas of the County; and .encourage
efficient patterns of development while discouraging
sprawl. [9J- 5.011(2) (b)2,3)
Policy S3.1: Okeechobee County shall continue coordinating with
the South Florida Water Management District and the
Florida Department of Environmental Regulation to
complete an assessment of potable water and sanitary
sewer existing conditions and future needs in the
County. [9J- 5.011(2) (c)3)
Policy S3.2: Okeechobee County shall continue working with the
City of Okeechobee to evaluate the feasibility of
establishing a utility authority which would be
responsible for meeting the potable water and
santiary sewer needs of southern Okeechobee County.
Feasibility shall be determined through ongoing
discussions with the City, as well with assistance
from the Florida Department of Environmental
Regulation and the South Florida Water Management
District and ongoing potable water and sanitary
sewer studies. If determined to be feasible, the
utility authority shall incorporate existing service
areas and coordinate the expansion of facilities,
including requiring that septic tanks along Lake
Okeechobee and Taylor Creek be replaced by
connection to existing or expanded public supply
sewage treatment facilities. [9J-5.011(2)(c)1,2]
22
Study Area. Limited central sewer service to this area is also
provided via the City of Okeechobee. The City sells bulk treated
water to the Okeechobee Beach Water Association, a not - for - profit
cooperative, which, in turn, resells it to a number of residential
customers located southeast of the City and toward the west along
the shoreline of Lake Okeechobee. The service area of the
Okeechobee Beach Water Association continues into a small portion
of the eastern edge of Glades County. Approximately thirty percent
(30 %) of the population served by the Okeechobee Beach Water
Association exists within Glades County. Plans are underway for
additional residential development in the Okeechobee Beach area.
To address the utility issues involved with added development
in the Beach area and the provision of regional utility services
and facilities, the City of Okeechobee, Okeechobee County, and the
Okeechobee Beach Water Association have held discussions concerning
the County initiating a water system, the City continuing to
provide service and expanding its existing capacity, the Okeechobee
Beach Water Association developing its own water treatment system,
and a multi -party utility authority that would transcend the
various jurisdictional boundaries. This section of the Phase I
report is intended to assist the community in evaluating and
analyzing (1) the existing infrastructure conditions and current
service being provided by the City of Okeechobee and the Okeechobee
Beach Water Association, (2) the existing customer base, (3) City
utility revenues and expenditures, (4) identified future
infrastructure improvements necessary to meet service demands, (5)
23
an evaluation of operating data and potential options for water
service and (6) certain debt capacity considerations. This section
of the Phase I report is provided primarily as a tool to inform and
assist policy and decision makers in the Study Area.
An inventory of existing facilities has been compiled from
limited information provided by the City and the Okeechobee Beach
Water Association. Unfortunately, neither of theses utility
service providers could provide a "system map" of their respective
infrastructure systems. A review of past and projected budgets and
financial statements has also been performed, along with a review
of the monthly operating reports. The information analyzed was
derived from documentation and reports provided by the entities
involved and the Florida Department of Environmental Regulation.
In some instances it was necessary to make assumptions. Such
assumptions can later be validated by other professionals.
Existing Infrastructure
The City of Okeechobee water system consists of a conventional
coagulation and sedimentation water treatment plant with lime
softening capabilities, two 250,000 - gallon elevated tanks, a
500,000 - gallon and a 1,000,000 - gallon ground storage tank. The
water plant was originally constructed in 1925 and upgraded in 1958
and 1972 to provide larger pumps and include improved treatment
technologies.
The treatment process (See Appendix A) includes coagulation
and sedimentation with alum and powder- activated carbon addition,
lime softening (when necessary), rapid sand filtration, and
24
chlorination. Alum and powder- activated carbon are applied
directly into the discharge side of the raw water pipe as it enters
the coagulation and sedimentation basin. The coagulation and
sedimentation basin is a four -step process, with each sub -basin
providing additional treatment to the water. Settled sludge
accumulates predominately in the first two settling basins which
are cleaned manually every two to three weeks. Water routed from
the coagulation and sedimentation basin goes to the lime- softening
unit when necessary and then to the filters. Water comes off the
filters and goes into the ground storage reservoirs (clear wells).
Transfer pumps then pump from the clear wells into the system.
Chlorine is injected immediately after the water leaves the
transfer pumps from the clear well, and prior to entering the
distribution system.
The raw water supply for the City of Okeechobee Water Plant
is Lake Okeechobee, which is a shallow, 714 - square -mile lake.
Because of the shallowness of the lake, the runoff from nearby
agricultural interests and the number of septic tanks located in
close proximity to the lake, impurities (most notably nitrogen and
phosphorus) exist within Lake Okeechobee. This provides an
environment conducive to the growth of algae blooms and lake
phytoplankton which can create treatment problems. High algae and
phytoplankton content may at times exert'a negative influence on
the color and bacterial quality of the raw water and subsequently
provide difficulty in treatment. When this occurs, the City
25
backwashes the filters in order to ensure that no toxic algae enter
the distribution system.
Raw water is drawn from the intake structure from two 2,000
gpm turbine pumps (See Appendix B). Presently, the raw water
supply is throttled by valves at the raw water meter and adjusted
according to the need for raw water. Activated carbon has been
added to reduce the organic content, unpalatable. taste and odors
within the lake water. Four disinfection by- products have been
detected within the finished water supply, the source of which is
not completely. identified• in the available City of Okeechobee
literature. These substances are (1) chloroform, (2)
bromodichloromethane, (3) dibromochloromethane, and (4) bromoform.
Each of these impurities, under the Secondary Drinking Water
Requirements, 11 should not be detectable and are obviously the
result of the surface water source for the water system (see
Appendix C fi or lab results). Trihalomethanes in the system vary
from .04 to .075 mg per liter, which is in accordance with the Safe
Drinking Water Act12 requirements at this time, but does not meet
with the proposed requirements of .05 mg per liter. To counteract
this, the City may consider the addition of ammonia to retard
trihalomethane formation.
l'Drinking Water Standards, Monitoring and Reporting, Fla.
Admin. Code 17 -550 (1992).
12F1a. Admin. Code 17- 550.310(2)(c)(1992).
26
The City of Okeechobee Water Treatment Plant is under consent
order with the Florida Department of Environmental Regulation13 due
to taste and odor problems with water from the City system (along
with chlorine residual problems). This problem stems primarily
from the surface water utilization of Lake Okeechobee. Lake
Okeechobee water is variable in quality, contains minerals, color
and turbidity as the result of runoff, algae and other chemicals
which tend to produce or contain taste and odor - producing
substances. Open surface water tends to have a higher potential
for pollution than does groundwater.
The City had an existing consumptive use permit from the
South Florida Water Management District for 3.73 MGD of surface
water withdrawals from Lake Okeechobee. A second filing for a
consumptive use permit has been secured for seven shallow wells for
an average of 2.2 MGD from the wells, and 2.88 MGD from the surface
water source, with a combined withdrawal not to exceed 2.57 MGD
average, and a maximum of 3.47 MGD.
The City's water distribution system consists of 4 -, 6 -, 8 -,
10 -, and 12 -inch water mains and a 24 -inch transmission pipeline
which are predominantly constructed of cast iron, PVC, and asbestos
cement pipe. The 24 -inch main extends from the water treatment
plant to an elevated storage tank located on Southwest 23rd Street.
The second elevated storage tank is located at City Hall and is
supplied by parallel 10- and 12 -inch water mains. Table 2 denotes
the materials utilized on the system. Of significant concern
13See Appendix D - Consent Order.
27
within the system is the cast iron pipe, of which there is 78,000
feet; the asbestos cement pipe of which there is over 30,000 feet;
and galvanized steel pipe of which there is 84,000 feet. This
comprises over half of the City's water distribution system which
has a total of only 314,000 feet of pipe.
Table 2. Existing Water Main Tabulation
Linear Feet of Water Main With Respect to Pipe Diameter
Material 2" 3" 4" 6" 8" 10" 12"
AC 0 0 3,696 26,612 0 1,200 2,190
CI 2,192 2,505 5,162 58,972 16,962 1,390 875
DI 340 95 2,343 5,511 9,049 3,435 7,771
GS 84,247 0 30 0 0 0 0
PVC 79.097 7.324 35.572 35.572 25 952 0 568
Total by Size 165,876 9,924 46,803 179,683 51,963 6,025 11,404
Abbreviations:
AC - Asbestos Cement Pipe
CI - Cast Iron Pipe
DI - Ductile Iron Pipe
GS - Galvanized Steel Pipe
PVC - Polyvinyl Chloride Pipe
The cast iron pipes on the system have been tested and found
to have very low C- factors. The C- factor is a measure of the
ability of water to flow freely through the pipe. A c- factor of
100 is marginally acceptable. C- factors on the cast iron pipes
between zero and 50 have been found. In addition, ductile iron
pipe over ten years old has been tested and found to have similar
substantard C- factor characteristics. This indicates that the
water in the system has a tendency to leave behind flow - inhibiting
deposits within the pipes, which requires regular cleaning. The
amount of pipe found with a C- factor of 100 indicates a significant
cleaning effort is required as well as potential replacement of
significant portions of the system.
28
Much of the cast iron pipe is older, indicating it may have
lead joints and, as such, may create problems for the City in
complying with the Safe Drinking Water Act requirements for lead.14
Asbestos cement lines in many areas of the country are
expected to pose potential problems in the coming years. Asbestos
cement water lines tend to show some deterioration over time,
resulting in brittleness and a tendency for shear breaks when
disturbed. Direct tapping is not practical, as drilling into the
pipe walls for service lines creates hazards for employees. The
same is true for repair work on this type of water mains.
Galvanized steel water mains tend to last less than twenty
years. This has been demonstrated in other areas of Florida, where
the galvanized steel is exposed to soils or groundwater that is
acidic or saline. Galvanized steel water lines typically become
high- maintenance appurtenances as they age and need to be replaced.
In addition to the 84,000 feet galvanized steel water lines in the
City system, many of the City's existing service lines are likely
to be galvanized steel and use galvanized fittings which may
contribute to additional leak problems in the system.
Unfortunately, no information was provided concerning the
water loss on the City's water system which, under good engineering
principles, should be less than ten percent. No data on meters,
conditions, or the existence of the changeout program were
reviewed. An in depth analysis of such information would be
prudent.
14Safe Drinking Water Act, 42 U.S.C. § 300g -6 (1988).
29
Part of the Department of Environmental Regulation Consent
Order, enter into by the City as previously noted, focused upon the
problem of low- chlorine residuals in various areas of the City's
water system. Florida's Drinking Water Standards require service
providers to maintain a chlorine residual in all parts of the
system at all times to prevent the growth of bacteria.15 Low
chlorine residuals can be attributed in part to the lack of
flushing of the system to eliminate stagnant water in the mains.
The algae bloom problem with the raw water drawn from Lake
Okeechobee, as was suggested in the engineer's report attached to
the Official Statement for the City of Okeechobee, Water and Sewer
Improvement Revenue Bonds, Series 1989, can also contribute
significantly to this problem.
The City of Okeechobee Wastewater Treatment Plant is located
on the north side of Cemetery Road. This plant was constructed in
1985 using a Marolf- designed contact stabilization plant. The
plant capacity is 0.6 MGD with an average daily flow of 300,000
gallons per day. This negative disparity is due to a functional
inability to properly dispose of wastewater effluentual points to
a need for the community as a whole to find a positive use for what
can be a valuable and useful by- product of a central sewer system.
The wastewater plant consists of a grit chamber with bar
screen, surge tank, lift station, pumps, contact aeration tank,
aerobic digester, clarifier, and chlorine contact chamber, from
which sewage is discharged to holding ponds and sprayed on 300
15Fla. Admin. Code 17- 550.510(6)(d).
30
acres located at the plant site. This irrigation is controlled by
an irrigation pump station with three trailing spray guns. Sludge
from the digester. is removed in liquid form and transported and
discharged to a permitted offsite location. The major measuring
device for wastewater at the plant is the V -notch weir located at
the effluent end of the chlorine contact chamber. A system to
measure flow depths over the weir is tied to a continuous flow
recorder and chart. Auxiliary power is available onsite, as are
a small office and laboratory. The suggestion exists in the
engineer's report contained in the Official Statement for the City
of Okeechobee Water and Sewer Improvement Revenue Bonds, Series
1989 that there may be some problems with groundwater on the
effluent irrigation sites, which may limit or prevent future spray
irrigation on the site. This was followed in the engineer's report
by a suggestion that a deep injection well may need to be
constructed for effluent disposal. A 1989 expansion to the
plant included filtration of chlorinated secondary treated effluent
utilizing a dual -media filter, with additional chlorination
following the filter, 61,000,000 gallons of unlined holding pond
storage, and a reclaimed water line to adjacent groves. Finally,
the City's 1989 bond issue was utilized to add a low -lift pump
station and drainage ditches to the spray field to prevent runoff
of the sprayed effluent to adjacent properties. This water is
returned to the onsite ponds.
The City's wastewater collection system consists of 6 -, 8 -,
10 -, 12 -, and 15 -inch vitrified clay and PVC pipe. A substantial
31
increase to the number of connections that the City serves was
completed in 1988 as part of its Phase I sewer expansion. On this
Phase I project, the City encountered significant construction
management problems and engaged a contractor who appeared to lay
a significant portion of the pipe in this project with insufficient
slopes. The City's 1989 bond issue included work to correct and
repair some of these problems. There appear to be some
fluctuations in the flows generated by the system that would
indicate that some infiltration of the system is present. However,
no correlating rainfall information was provided.
The Okeechobee Beach Water Association system has little
available information. The system has two elevated storage tanks,
each with 75,000 gallons capacity located at Buckhead Ridge and
Treasure Island. The system contains about 15 miles of 6- and
8 -inch "transmission" lines, and an unknown quantity of lines less
than 6 inches in diameter serving individual lots. All water
service is currently provided by the City of Okeechobee as a part
of a bulk water service agreement that expires in 1994. The system
appears to be in fair condition, but little information was
available for review in the preparation of this report.
The total value of the assets of the City's water and sewer
system is $7,441,576 according to the 1990 audit, with
contributions in aid of construction of $4,447,549, totalling a
system asset value of $11,889,125.16 However, debt on the system
16Financial Statements and Accompanying Information, provided
by City of Okeechobee, p. 18 (1990).
32
is $9,552,283,17 leaving a net residual value on the system of
$2,336,842 when debt is deducted.
The Okeechobee Beach Water Association system has no debt.
The latest annual report lists the value of the assets of the
system at about $1,550,000, leaving a net residual value of about
$1,550,000. These crude valuations do not take into consideration
other positive or negative factors, such as a need to replace
deteriorated or unsafe pipe, additional infrastructure needs or the
ability or inability to raise rates to meet revenue needs.
Existing Customer Base
The City of Okeechobee water system presently serves 3,718
residential customers, 20 multi - family connections, zero industrial
customers,
and 762 commercial customers. Added to this are the
Okeechobee Beach Water Association customers, including 2,973
residential customers and 178 commercial customers. Nearly half
of the customers on the City system are located within the County,
but not within the Okeechobee Beach Water Association's water
distribution system service area. Table 3 shows existing and
17Financial Statements and Accompanying Information, provided
by City of Okeechobee, p. 20 (1990).
33
proposed customers for the City, County, and the Okeechobee Beach
Water Association for 1991 and 1994.
TABLE 3. WATER CUSTOMERS
Type
City County OBWA
1991 1994 1991 1994 1991 1994
Single Family 1944 1981 1774 2000 2973 3285
Multi Family 9 n/a 11 n/a 0 0
Commercial 519 540 243 289 178 190
Industrial 0 0 0 0 0 0
TOTAL 2472 2521 2028 2289 3151 3475
Gallons Used /Day
(000,$) 574 587 451 511 *484 *527
(actual) 562 612
Rates 3.10 +1.70/1000 3.88 +2.13/1000 8.00 +3.00/1000
NOTES: Average low - Single Family (City & County) 5100 gal /mo
Single Family (OBWA) 3000 gal /mo
Multi Family & Commercial
(City & County) 17700 gal /mo
Multi Family & Commercial
(OBWA) 31400 gal /mo
Total Plant Average Daily Flow - 1991 - 1.59 MGD
1994 - 1.71 MGD
The City of Okeechobee sewer system only serves 1,387 City
customers and 589 County customers (a total of 1,976), but no
Okeechobee Beach Water Association customers.
City Utility Revenue and Expenditures
Tables 4 and 5 present the revenue and expenditures budgeted
for the City of Okeechobee water and sewer systems over the past
few years.
TABLE S. CITY OF O*O ECNOBEE REVENUES(in 000's)
Item/Year
1987 1988 1989 1990
User Fees (w & S) 1417 1722 1697 2251
Interest Income 63 72 62 305
Impact Fees • 112 91 212 417
Misc. 0 43 37 58
TOTAL
1592 1928 2008 3031
NOTE: Figures for FY 1991 were not made available by the City.
34
• Table 5 also shows estimated future expenditure budgets.
TABLE 5. CITY OF OIO ECHOBEE
EXPENDITURES
(in 000's)
Item/Year 1988 1989 1990 1991* 1992* 1993* 1994*
Personnel 541 582 615 650 685 710 745
Contract Serv. 41 54 56 63 70 76 82
Mtls & Suppl 246 352 348 350 350 350 350
Utilities 131 137 127 135 135 135 135
Insurance 60 52 49 50 50 50 50
Repair & Maint. 60 81 68 70 72 75 78
Admin. Suppl 19 25 23 23 24 25 26
Transf. to GF 48 48 48 48 48 48 48
Bad Debts 20 12 0 5 5 5 5
Debt Service 436 593 767 797 859 854 n/a
Legal & Eng. 593 ** 45 0 0 0 0 0
Misc. 2 25 8 10 10 10 10
Deprec. * ** 281 306 311 320 340 360 380
TOTAL 2482 2312 2420 2521 2648 2698 n/a
Net Operating (32) 140 133 n/a n/a n/a n/a
NOTES: * Projected, with no plant expansions
** Arbitration Case settlement
* ** This is not the usual procedure for public sector accounting.
This could be a Repair & Replacement Fund, but the annual
audits do not indicate whether this is the case, or whether
this is an actual dollar expenditure.
Recent rate increases by the City have generated an influx of
monies for operations and to offset bond indebtedness incurred in
1987 and 1989 for the previous plant expansions and the City's
Phase I sewer area installation. Debt on the system currently is
$9,552,288. Unfortunately, the debt is not divided between water
and wastewater, which require assumptions to be made. The City's
1989 bond issue for $4.8 million was split $4.6 million for sewer,
the rest for water. The City of Okeechobee, Water and Sewer
Refunding and Improvement Revenue Bonds, Series 1987 refinanced
previous bond issues for which little information has been made
available. Based on the official statement, it appears that the
debt may be evenly split between water and wastewater (the 1972
35
FMIIA issue appears to upgrade the City's water treatment plant,
while the 1983 issues are split between water and sewer). As such,
the debt on the water and wastewater systems, for the purpose of
clarity, is estimated as follows:
Water related debt $2,650,000
Sewer related debt $6,900,000
Total debt (water and sewer) $9,550,000
Table 6 compares monthly water utility bills for the City of
Okeechobee and some surrounding communities. Presently, the City's
rates appear in the middle of the spectrum. However, future
infrastructure requirements may cause the monthly bills to appear
significantly different were the City to incur the debt to make the
improvements. As well, increased principal payments on the City's
debt will also demand increased rate revenues.
TABLE 6. COMPARISON OF CITY WATER BILLS TO AREA SYSTEMS
System
Okeechobee
OBWA
Moore Haven
Sebring
Clewiston
Belle Glade
South Bay
Pahokee
Availability
3.10
8.00
9.00
7.10
3.00
8.61
6.00
9.00
Per Gallon 5000 gal
1.70
2.00 /over 3000
2.50
1.77/1.45 over 3000
2.50
1.87
2.00
3.00 /over 3000
11.60
12.00
21.50
13.31
15.50
14.22
16.00
15.00
NOTE: Rate information from August 1991 Okeechobee Area
Water &Sewer Task Force Final Report on Comparison Analysis
- Water and Sewer Options, which was not reverified for this
report.
Based upon a review of the pledged security for the City's 1987
and 1989 bond issues and the City's rate structure, it appears
that a portion of the revenue necessary to cover city debt service
is being derived from charges to rate payers for operating, as
36
opposed to availability costs.18 Also, it appears that some
general fund monies are being used to offset debt service. The
net result of this latter point would result in city taxpayers
subsidizing the utility system rate payers with artificially lower
utility rates. Alternatively, this might be explained by the fact
that the City is depreciating its infrastructure; which is not a
customary practice on governmentally owned utility systems. If
either of these observations is correct, the City could be faced
with a future management problem due to a cash flow shortage, be
unable to make periodic repayment on the bonds and /or be faced
with an inability to meet operations costs, all due to a shortage
of utility rate revenues.
Future Infrastructure
The water and wastewater plants in the City of Okeechobee
will need expansion in the near future, as the units that can be
18In a typical rate structure service availability costs are
made up of debt service, meter reading and billing and collection
costs. These are fixed costs which occur whether any water is used
or not. The other component of a typical rate structure is the
cost of operations which are composed of the cost to produce the
commodity or service and the maintenance of infrastructure.
Typically all rate payers pay the same availability charge or
portions of fixed costs and rate payers who use more water than
others pay a proportionately larger share of the cost of
operations. Shifting a portion of debt service from the fixed or
availability side of the rate equation to the operations cost side
does three things: (1) artificially lowers rates for small users
because they pay a disproportionately small share of debt service
costs, (2) shifts to larger users a disproportionately large share
of debt service costs and (3) creates a potential management
problem resulting from lack of funds from rate revenue to cover
debt service. This latter consequence would occur if larger users
were to significantly reduce consumption, resulting in a lack of
revenue to cover that portions of debt service cost inappropriately
charged as a part of operations costs.
37
1
served under current conditions are theoretically 11,850 and
2,400, respectively. Indications are that the City's water plant
may not be able to meet State and federal drinking water standards
at that level due to the quality of the lake water. On the
wastewater side, the estuary system and the lake itself may pose
problems for the future disposal of wastewater effluent. The
engineer's report attached to the City of Okeechobee, Water and
Sewer Improvement Revenue Bonds, Series 1989, noted that the
ultimate disposal for the wastewater effluent would be a deep
injection well. This is an extremely costly alternative; however,
it may lend itself to a number of potential benefits for the
provision of both water and wastewater. Unfortunately, two wells
(one for backup) would be required,19 each costing approximately
$2.5 million. All of the above points to a need for significant
revenue, which in turn makes significant rate increases for City
users inevitable.
According to the Okeechobee County Comprehensive Plan, the
sanitary sewer use is estimated to be 130 gallons per capita per
day while the peak daily water demand for potable water is 114
gallons per capita per day.20 This is contrary to generally
accepted engineering standards, which indicate that the per capita
water usage should be higher than the per capita sewer demand. It
19F1a. Admin. Code 17 -28 (1990) essentially requires that one
deepwell will not be permitted without another for back -up
purposes.
20Okeechobee County Comprehensive Plan, Policy S1.1,
Okeechobee County Ordinance No. 92 -5.
38
is suspected that this standard has been set to account for summer
infiltration into the area wastewater treatment plants. This is
an issue that needs to be reviewed and corrected on a
community -wide basis in order to protect groundwater supplies and
reduce wastewater treatment plant construction costs to area
residents.
In evaluating the future wastewater infrastructure, it should
be recognized that although the City of Okeechobee is a,major
provider of sewer service in the Study Area, it is not the only
provider. A significant number of small package wastewater
treatment plants exist in the area surrounding the City of
Okeechobee.Z1 These package wastewater treatment plants may
constitute a health, safety, and welfare risk or an environmental
risk at some future point in time (if not already) . The County
recently commissioned a study by Craig A. Smith & Associates to
review the swer service aspects of a regional county provider to
provide service to the outlying areas and to take these package
plants off line.22 As such, this Phase I Report will endeavor to
avoid duplicating the efforts of the Craig A. Smith report
relative to wastewater service.
The City of Okeechobee recently indicated that it is ready to
expand its water treatment plant. In 1994, the bulk water service
agreement with the Okeechobee Beach Water Association expires.
21Draft- Okeechobee County Utility System, prepared by Craig S.
Smith & Associates, p. 4 -70, September 1991.
22Draft- Okeechobee County Utility System, prepared by Craig
A. Smith & Associates, September 1991.
39
This fact has opened discussions among the City, County, and
Okeechobee Beach Water Association concerning the best
alternatives to the provision of water service to the area. The
City, as the current water provider, appears desirous of
continuing that service. At some point there may be some
resistance from City voters to the issuance of debt in order to
provide additional capacity to County residents. This fact has
been realized by Okeechobee Beach Water Association which
evaluated its ability to, and appears poised to, embark on
construction of its own water treatment plant.
The South Florida Water Management District has recognized
the need to plan, design and construct regional water and sewer
infrastructure in the Study Area and has agreed to incrementally
provide partial .funding to explore and promote such activity
through the County in a performance based manner. This funding is
pursuant to la Cooperative Agreement between the South Florida
Water Management District and the County, dated April 9, 1992.23
has
the
23This funding Agreement provides for funds to be paid over
to the County upon the happening of specific events or the
provision of specific deliverables over a period of as long as
three Fiscal Years ending September 30, 1994. Although this
funding agreement is subject to revision and amendment the current
funding milestones are as follows: wastewater effluent disposal
site- specific study - $50,000; preliminary wastewater collection
system design and cost estimate - $125,000; wastewater system
financing plan - $75,000; design and permitting of the initial phase
of wastewater facilities - $50,000; hydrogeologic study and test well
program for wellfield- $100,000; development of governance structure
to deliver utility facilities and services - $50,000; preparation of
plans and receipt of permits to construct well field, tankage,
transmission and pumping appurtenances; preparation of plans and
receipt of permits to construct 1.5 MGD water treatment plant -
$50,000 completion of wellfield, raw water storage facility,
transmission lines and appurtenances - $500,000.
40
Annual Operations Assumptions
OPERATIONS COSTS - CITY PLANT
(Water Only)
1991 1994
Personnel 350,000 435,000
Contractual Serv. 30,000 40,000
Maint & Suppl 220,000 220,000
Utilities 75,000 75,000
Insurance 25,000 25,000
Repair & Maint. 40,000 45,000
Admin. Suppl 10,000 15,000
Transf. to CF 24,000 24,000
Misc. 5,000 5,000
R &R (Deprec.) 130.000 140.000
TOTAL
909,000 1,024,000
OPERATIONS COSTS - OBWA NEW PLANT
(Water only)
Chief Operator 37,000
5 Operators (5 a 27,000 /yr) 135,000
Utility Tech /Meter Reader 46,000
Utilities 75,000
Repair & Maintenance 30,000
Contract Services (Lab) 30,000
System Maintenance 50,000
Administrative Costs 35,000
Miscellaneous Costs 25,000
Insurance 10,000
R &R 200,000
TOTAL 673,000
OPERATIONS COSTS - COUNTY /AUTHORITY PLANT
(Water Only)
Chief Operator 37,000
5 Operators (5 2 27,000 /yr) 135,000
Utility Tech 46,000
Meter Reader • 23,000
Billing 5,000
Utilities 75,000
Repair & Maintenance 40,000
Contract Services (Lab) 30,000
System Maintenance 50,000
Administrative Costs 25,000
Miscellaneous Costs 25,000
Insurance 10,000
R &R 250.000
TOTAL 767,000
42
OPERATIONS COSTS - COUNTY /AUTHORITY 2 PLANTS
(Water Only)
Personnel 630,000
Contract Services 40,000
Maint & Suppl 270,000
Utilities 150,000
Insurance 25,000
Repair & Maint 80,000
Miscellaneous Costs 25,000
R &R 390.000
TOTAL 1,610,000
Again for comparison, Table 9 briefly outlines each of
several options.
TABLE 9. DEVELOPMENT OF OPTIONS
OPTION:
A. Existing system is City operated 2.88 MGD plant with bulk sale to OBWA
B. City expands plant by 2.0 MGD and continues to serve all via contractual arrangement
C. City serves its current area, minus OBWA. OBWA purchases water from 2.0 MGD regional county
treatment plant, constructed by County
D. City provides its service area minus OBWA who builds own 1.0 MGD water treatment plant
E. County or authority operates existing City plant and builds new 2.0 MGD regional water
treatment plant - interconnects same, purchases City system for net value, purchases OBWA
system for net value, and provides OBWA water like any other customer
F. County or authority operates existing City water plant, and expands same to 4.88 MGD on site,
thereby eliminating some costs, purchases City system for net value and purchases OBWA for
net value, treats all customers the same
G. County or authority operates existing City water plant, builds new plant that can be expanded,
interconnects systems, assumes City debt. City and OBWA give systems to authority
H. County or authority operates existing City water plant, expands it, and assumes City debt.
City and OBWA give systems to authority
Option A is the existing situation where the City is
operating a 2.8 MGD water treatment plant with a bulk sale of up
to 800,000 gallons per day to the Okeechobee Beach Water
Association. This option is shown for later comparative purposes.
43
Option B utilizes the expansion by the City of its' plant
capacity by 2.0 MGD and assumes that contractual arrangements can
be negotiated to allow the City to continue to provide water
service to the Okeechobee Beach Water Association system. Without
the latter bulk service arrangement and the light of below average
growth in the community, it makes little sense for the City to
plan any expansions.
Option C assumes that the City continues to serve in its
current service area with its current water treatment plant,
excluding the Okeechobee Beach Water Association system. This
option assumes that the Okeechobee Beach Water Association
purchases water from a 2.0 MGD regional County water treatment
plant, constructed by the County utilizing the South Florida Water
Management District grant. The County would then continue to pick
up customers from this plant without deleting any of the City's
current service area.
Option D assumes the Okeechobee Beach Water Association
builds its own 1.0 MGD water treatment plant and services its
customers. The only problem with this option is that the
Okeechobee Beach Water Association is a private cooperative, and
the impetus behind construction of a new plant reasonably appears
to be land development- driven, leading to the question as to
whether or not the system might be abandoned at some point in the
future requiring operation by the general purpose government, the
County.
44
Options E, F, and G all assume that the County or a
multi -party authority provides water service to all of the
customers on a retail basis, at equivalent rates. These scenarios
are developed because a disparity exists in the current rate
structure among the three parties (County residents pay 1.25 times
City residents for the same service, and Okeechobee Beach Water
Association customers pay less than even City customers due to
their long term bulk service arrangement which is due to expire in
1994). All three options also assume that the County or a multi-
party authority assumes all current indebtedness on either the
City or Okeechobee Beach Water Association system. Options E and
F also assume that the City and the Okeechobee Beach Water
Association require that the County or an authority purchase their
systems for net value as a part of the initial setup of the
authority. The latter assumption significantly increases the
start -up costs and debt incurred on the regional system.
Option E assumes that the County builds a new 2.0 MGD
regional water treatment plant, interconnects same with the City's
plant, and operates both.
Option F assumes by the same methodology that the County or
a multi -party authority can expand the City's water plant onsite,
thereby eliminating some duplication in the operations costs.
Option G assumes the County or multi -party authority operates
two plants that are interconnected and a new plant that can be
expanded.
45
Option H is identical to Option G, except operating with one
expanded plant instead of two.
Table 10 indicates the cost of each of the above described
options, utilizing the assumptions made in Tables 7 and 8.
Obviously, the most expensive options appear to be those in which
the County or multi -party authority must purchase the City and
Okeechobee Beach Water Association water systems. However, it
must be remembered that the larger rate base helps to overcome its
apparent disparity.
TABLE 10. OPTIONS FOR WATER SERVICE-FOR USE AS A DECISION MAKING TOOL
Option A. Current Conditions - No Growth (for comparison)
Option B.
City plant expanded by 2.0 MGD 3,000,000
Wells 500.000
TOTAL 3,500,000
Option C.
County builds new plant at 2.0 MGD 3,000,000
Wells 500,000
Land 250,000
0.5 MG tank 500.000
TOTAL 4,250,000
Option D.
OBWA builds 1.0 MGD plant 1,500,000
Wells 375,000
Land /piping 250,000
(2 tanks owned by OBWA) -0-
Clearwell 250.000
TOTAL 2,375,000
Option E.
OBWA system 1,600,000
City Net Value 2,400,000 -- .
Assume City Debt 2,650,000
New Plant Construction 4,250,000
Credit SFWMD Grant (1,500,000)
Reserve 10% 1,100,000
Issuance 4X 440.000
TOTAL 10,940,000
46
Option F.
OBWA system
City Net Value
Assume City Debt
Ex. Plant Expansion
Credit SFWMD Grant
Reserve 10%
Issuance 4%
TOTAL
Option G.
1,600,000
2,400,000
2,650,000
3,500,000
(1,500,000)
1,010,000
410,000
10,070,000
Assume City Debt 2,650,000
New Plant Construction 4,250,000
Credit SFMMD Grant (1,500,000)
Reserve 10% 630,000
Issuance 4X 250.000
TOTAL 6,280,000
Option H.
Assume City Debt
Ex. Plant Construction
Credit SFWMO Grant
Reserve 10%
Issuance 4X
2,650,000
3,500,000
(1,500,000)
540,000
220,000
TOTAL 5,410,000
NOTE: Debt service assumed 8 7X over 30 years (.0814)
Table 11 summarizes the water debt obligations that each of
the parties would incur if the above options were pursued.
TABLE 11. WATER DEBT OBLIGATIONS
(in 000's)
Option City County OBWA
A. 2650 0 0
B. 6150 0 0
D. 2650 2750 0
D. 2650 0 2375
E. 0 10940 0
F. 0 10070 0
G. 0 6280 0
H. 0 5410 0
To further refine the cost to the consumer under each of the
options, a simplified rate study must be performed. Rate analyses
47
are best performed utilizing a conversion of the current meter
sizes to equivalent residential customers (ERC). This calculation
is relatively easy and assumes that a 5/8- by -3/4 -inch standard
meter is one ERC. Each meter size larger than the standard meter
has a multiple assigned to the number of connections. Table 12
illustrates how the number of meters as converted to ERCs were
developed. In 1990, the total ERCs served by the City was 7,185.
TABLE 12. EQUIVALENT RESIDENTIAL CUSTOMER CALCULATION (1991)
Meter Size City County
Number /ERCs
OBWA
5/8 x 3/4 1970/1970 1954/1954 2112/2112
1 58/ 116 31/ 62 16/ 32
1-1/2 19/ 95 17/ 85 3/ 15
2 22/ 176 15/ 120 8/ 64
3 2/ 32 5/ 80 1/ 16
4 1/ 32 1/ 32 4/ 128
6 0/ 0 0/ 0 1/ 64
TOTAL ERCs 2421 2333 2431
ERCs all systems 7185
Based upon a determination of equivalent residential
customers or1ERCs, a prorata share of the debt on the system can
be assigned to each user class. Table 13 indicates the amount of
debt that will be required to be secured for a standard
5/8- by -3/4 -inch meter customer (typical residential user).
TABLE 13. MONTHLY DEBT REQUIREMENT -BY OPTION
Option City County OBWA
A. 3.10 3.88 8.00*
B. 5.60 7.00 4.88
C. 3.43 4.12 7.67
D. 3.43 4.12 5.58
E. 10.33 10.33 10.33
F. 9.51 9.51 9.51
G. 5.92 5.92 5.92
H. 5.11 5.11 5.11
Okeechobee Beach Water Association residents get 3000 gallons
for the minimum rate.
48
Option A indicates the current rates on the system. In each
of the cases, the debt service required is higher than present,
given that some expansion must take place in order to continue to
provide sufficient quantities of water to the area.
Table 14 shows the per- thousand gallon cost for each of the
alternatives. Anytime more than one treatment plant is involved,
the operations costs increase. These costs are based upon current
and projected costs incurred by the City of Okeechobee as detailed
on Table 5 and assumed on Table 8.
TABLE 14. MONTHLY VARIABLE COST
(per 1000 gal)
Option City County OBWA
A. 1.70 2.12 3.00*
B. 1.54 1.93 3.00
C. 1.71 2.14 3.39
D. 1.71 2.14 2.97
E. 2.58 2.55 2.58
F. 1.64 1.64 1.64
G. 2.58 2.58 2.58
H. 1.64 1.64 1.64
NOTE: Cost per 1000 gallons above 3000
Table 15 illustrates a comparative monthly water rate under each
of the options. Under each option, there are different winners
and losers.
TABLE 15. COMPARABLE MONTHLY WATER RATES
(5000 gallon per month usage)
Option City County OBUA
A.* 11.60 14.53 14.00
B. 13.30 16.65 19.88
C. 11.98 14.82 24.62
D. 11.98 14.82 20.16
E. 23.23 23.23 23.23
F. 17.71 17.71 17.71
G. 18.82 18.82 18.82
H. 13.31 13.31 13.31
NOTE: *Current City Rates
49
No doubt other parties could create an endless options with
varying numbers. This analysis provides a glimpse into the future
and makes it rather obvious that the [conclusion].
Debt Capacity Considerations
In the State of Florida, the majority of large water and
sewer utilities (more than 3,000 connections) are owned by local
governments, as opposed to private for - profit entities. Water and
sewer utilities are capital intensive, and therefore, the ability
of local governments to finance capital projects with.low interest
rate, tax - exempt debt is a significant advantage of local
government ownership. Local government tax exempt debt issued in
order to finance utility projects carries extremely low interest
rates due to investors' perception that the security of water and
sewer debt is of the highest quality. The credit quality is high
because the debt is secured by water and sewer revenues which are
easy to forecast and represent payment for an essential service.
Both of these attributes: tax - exemption and high quality credit
will be secured regardless of the governance alternative selected.
The City of Okeechobee has capitalized on the advantages
discussed above as demonstrated by the following summary of the
City's outstanding water and sewer debt.
Bond Issue
Water and Sewer, Series 1987
Water and Sewer, Series 1989
50
Range of
Amount Maturities of
Outstanding Interest Rates
$4,745,000 1993 -6.0% to
2017 - 7.875%
$4,830,000 1994 -6.10% to
2015 - 7.125%
The Okeechobee Beach Water Association has no significant
debt outstanding.
Current market tax - exempt interest rates are at a 14 year
low. These market conditions provide an excellent opportunity for
the community to consider more regional governance alternatives.
The analysis set forth as Appendix E, demonstrates that the City's
outstanding water and sewer debt could be refinanced, in the
current market, with no increase or even a small decrease in debt
service requirements (principal and interest payments). The
analysis is a refinancing analysis, and therefore, includes no
compensation in addition to the retirement of all outstanding
debt. We believe this financing plan could be implemented by
under regional governance structure adopted by the community at
least a "break even" level. Therefore, financing concerns should
not be significant in the selection of a governance alternative.
Other than the knowledge that refinancing the City's existing
water and sewer debt will not add to the cost of consolidating
local utilities, the selection of a governance alternative should
be based on other, more significant, issues addressed in this
Phase I Report.
Summary of Overview
This overview of service in the Study Area has been developed
to address certain issues involved with the provision of water and
wastewater service to the southern Okeechobee County area. The
analysis considered existing infrastructure, the present financial
picture, and a number of possible options. The "bottom line"
51
indications in Tables 10, 11, 13, 14 and 15 must not be allowed to
totally drive any conclusions - there are other less tangible
considerations. There are serious problems with the age and type
of infrastructure that exists on the City system, especially with
regard to the older cast iron, asbestos cement, and galvanized
steel water lines. It is anticipated that significant expense
will be incurred in the coming years to repair, maintain or
replace aging, dysfunctional or unsafe water distribution and
service lines.. The Okeechobee Beach Water Association system is
a small system, and small utility systems are generally not viable
for any length of time due to the regulatory requirements and the
increasingly extensive sampling and testing that must be
performed. In reviewing the present provider's financial picture,
it appears that the City of Okeechobee has only recently been able
to break even or show a surplus on its utility system, but
additional debt, aged infrastructure, present service demands or
the loss of the cash flow from Okeechobee Beach Water Association
may force significant rate increases in the future. Likewise, the
Okeechobee Beach Water Association, in building its own water
treatment plant, will ultimately have to face the prospect of
substantial rate increases.
If the community continues with the City as a sole provider
of water more than half of the City's rate payers will continue to
pay 25% more than the minority of the City resident customers.
If the Okeechobee Beach Water Association builds its own water
treatment plant, the City's rate base will shrink and the rates
52
charged by the City to its remaining customers will be sharply
adjusted upward to make up for the $200,000 per year that the
Okeechobee Beach Water Association pays under its bulk service
arrangement. Were the County to build the required infrastructure
for County residents and the Okeechobee Beach Water Association,
the rates in the City system would also increase for the same
reasons. In addition, it makes little sense to have two or three
entities in the water business in such a small area. Finally,
disjointed and competing water utility service will undoubtedly
lead to disjointed, inefficient and expensive delivery of
wastewater services. Such circumstances generally leads to the
proliferation of package wastewater treatment systems,
environmental degradation, regulatory scrutiny and, ultimately
building or use moratoriums.
As Noted previously, the market for tax - exempt interest rates
is at a 14 year low and the assumption of the City's existing
water and sewer debt in the worst case would only have a neutral
affect. A regional approach to providing water and wastewater
provides a larger and more credit worthy base than any other
approach. This larger, more credit worthy base in turn results in
lower- costs and more stable rates to the entire community.
Finally, from a general financial view point, the larger
geographic area encompassed by the Study Area lends itself to
providing an assessment base to assist in financing
infrastructure. This facet may not generate the revenue to build
out the system, but will demonstrate to state and federal agencies
53
and the credit markets that the community (1) has put in place the
framework to obtain the best credit and lower cost of funds in the
event of any borrowing and (2) is poised to participate to the
best of community's ability.
The natural hesitance of the City to be a participant in a
County utility authority, or for competition in the provision of
potable water, is the loss of control and /or existing utility
customers. However, without a regional approach in place the
chances of obtaining State or federal subsidies for wastewathr
infrastructure are for all practical purposes non - existent.
If the City of Okeechobee utility system was to be
transferred or contributed to a multi -party authority, City
residents would be assured of stable rates and the rates for all
customers in both the incorporated and unincorporated areas would
be equal. Such a regional scenario will significantly increase
the possibility of sewering the urbanized areas in the City and in
the unincorporated nearby areas. A regional approach brings with
it a viable opportunity to seek State or federal subsidy for the
community as a whole. Without a regional approach and outside
subsidy for the cost of needed capital infrastructure, commerce in
the whole community will suffer, service expansions will be
sporadic and inefficient and rates for everyone will be disparate
and much higher.
Table 15 is illustrative, and shows for policy making
purposes how the different governance alternatives are
significantly different cost -wise from each others. Additional
54
study beyond the scope of this Phase I report is necessary to
review the viability and continued utilization of portions of the
City utility system and to fine tune the selected option or
alternative. For example, Options B, F and H may not be possible
if significant room does not exist at the current water treatment
plant site to effect an expansion to that same plant and take
advantage of the savings that a one -plant scenario would provide.
From the standpoint of "what's best for whole community ? ", it
appears desirable to have one regional agency that provides
utility service to the limited number of customers that exists
within the Study Area. This alternative (1) takes advantage of
any economy of scale that can be derived, (2) will transcend
artificial boundaries within the community and (3) put the
community as a whole in the best position to seek subsidy from
State and federal sources. Given that under a consolidated
scenario there is little difference in the future rates, it is
recommended that a multi -party authority be developed to provide
for the water and wastewater utility service in the Study Area.24
The most sensible approach in this regard appears to be one where
the City and the Okeechobee Beach Water Association contribute
their systems to the multi -party authority and the County
contributes its South Florida Water Management District grant and .
bonding capacity. Over time, while the rates will never decline,
24Providing representation and input from Okeechobee Beach
Water Association may need to come from legislative revisions to
general law, special law, or by agreement. See "GOVERNANCE
STRUCTURE -- Governance Recommendation" herein.
55
the rates will likely be more stable than any of the other
options. The multi -party authority would have the responsibility
for maintaining and repairing the existing infrastructure and
providing infrastructure for future customers and to residents
currently on well service. Regionalized wastewater service,
generally in accordance with the County's wastewater recent study,
could be incorporated into the same multi -party authority to begin
the process of aggressively seeking of extending sewer to unserved
areas and toward replacing the package wastewater treatment plants
throughout the Study Area.
56
LOCAL REVENUE SOURCES
Ad Valorem Taxes
Ad valorem property taxes are an option to partially fund a
regional utility system. As of May, 1992, the real property in
the Study Area, including both residential and commercial
properties, had a combined ad valorem taxable value of
$400,150,070. Based upon this valuation, one mill25 of ad valorem
taxes within the Study Area would generate $400,150 of annual ad
valorem tax revenues. Ad valorem tax revenue generated in a
special taxing district would provide a reliable and easily
administered revenue source to partially fund the capital and
operating costs of a regional utility system. As discussed
subsequently, an election is required to impose ad valorem taxes
in a special taxing district.
Ad valorem taxes are value -based taxes on real and tangible
personal property. The Florida Constitution prohibits a local law
for the assessment and collection of taxes, so general law defines
the ad valorem tax base and provides for the annual collection of
ad valorem taxes by the tax . collector in each county.26 The tax
liability of an individual property owner depends on two factors:
the parcel's taxable value and the millage rate applied by the
taxing unit. Florida law requires the property appraiser to
determine the taxable value of all property in the county by
25One mill equals one one - thousandth of a dollar. Section
192.001(10), Florida Statutes.
26Article III, Section 11(a)(2), Florida Constitution.
57
appraising all parcels according to just or fair - market value, and
by making adjustments for tax exemptions and classifications
authorized by the Florida Constitution and implemented by Florida
Statutes.27 The millage rates are established annually by the
local taxing authorities in accordance with procedures established
by general law.28 Property owners are sent a single ad valorem tax
notice each year that contains a bill for the millages levied by
all the taxing units.29 The millage rate levied within each unit
must be uniform.3o
There is no requirement that a taxpayer benefit from the
expenditure of tax revenue. The general rule is that the
questions of benefits and of unlawful burdens do not arise when
the tax is uniform, for a public purpose, and within the power of
the Legislature to prescribe.31 Limitations on the use.of; the ad
valorem revenue may be provided by law or in the charter
establishing the taxing district and are governed generally by the
public purpose requirement of the Florida Constitution.
A reasoned consideration of using ad valorem tax revenue from
the Study Area to partially fund a regional utility system through
27Chapters 193 and 196, Florida Statutes.
28Chapter 200, Florida Statutes.
29Section 197.3635, Florida Statutes.
3°Article VII, Section 2, Florida Constitution.
31Hunter v. Owens, 86 So. 839 (Fla. 1920); Jinkins v.
Entzminger, 135 So. 785 (Fla. 1931); Dressel v. Dade County, 226
So.2d 402 (Fla. 1969) ; and Tucker v. Underdown, 356 So.2d 251 (Fla.
1978).
58
a special taxing district vehicle must include consideration of
the referendum requirement. The imposition of ad valorem taxes by
any entity other than a county, municipality, school district or
water management district must be approved by the electorate.32
Voters must also approve a pledge of ad valorem revenue for the
payment of indebtedness.33
The Florida Constitution provides that special districts may
be authorized by law to levy ad valorem taxes but requires that
the rate of taxation be "... authorized by law approved by vote of
the electors who are owners of freeholds therein not wholly exempt
from taxation. "34 Limiting the vote to owners of "freeholds," or
title holders of property, has been the subject of litigation. In
City of Phoenix v. Kolodzielski, 90 S.Ct. 1990, 399 U.S. 204,
(1970), the United States Supreme Court invalidated a general
obligation bond referendum on equal protection grounds where the
electorate was limited to freeholders. The referendum was struck
down on the ground that the property owners' interest in the
outcome of the election was no more substantial than the interest
of the non - property owners. However, the Court upheld a property
owner election against an equal protection challenge where the
purpose of the election was to elect a board of directors with
limited powers of government in Salver Land Co. v. Tulare Lake
Basin Water Storage District, 410 U.S.419, 93 S.Ct 1224 (1974).
32Article VII, Section -9(b), Florida Constitution.
33Article VII, Section 12, Florida Constitution.
34Article VII, Section 9(b), Florida Constitution.
59
The Supreme Court of Florida has followed the United States
Supreme Court opinions in interpreting the constitutional
provision regarding freeholder elections. In State v. Frontier
Acres Community Development District, 472 So. 2d 455 (Fla. 1985),
the court upheld the constitutionality of Section 190.006, Florida
Statutes, which provides for voting on a one - vote - per -acre basis
for electing the board of directors of a community development
district. The court reasoned that a community development
district does not exercise general governmental functions and does
,have a disproportionate effect on landowners within the district.
A special taxing district encompassing the Study Area would
perform functions similar to those of government, such as levying
property taxes, assessments, issuing bonds and providing water and
sewer services. Since the district encompasses residential as
well as commercial areas, a freeholder election is not a good
alternative as a court would undoubtably balance that fact against
the appropriateness of holding an election based on ownership of
land. The fragmented development of the Study Area makes it
distinct from the characteristics of a community development
district which typically has few owners of large tracts of
underdeveloped land. We believe that ad valorem taxes, in this
circumstance, is not a good alternative as the same revenue could
be created via a municipal service benefit unit without the need
for an election.
60
Special Assessments
General Description
Generally special assessments are "charges assessed against
the property of some particular locality because that property
derives some special benefit from the expenditure of the
money... "35 As established by Florida case law, there are two
requirements for the imposition of a valid special assessment:
(i) the property assessed must derive a special benefit from the
improvement or service provided and (ii) the assessment must be
fairly and reasonably apportioned between the properties that
receive the special benefit. An assessment may provide funding
for either capital expenditures or the operational cost of
services, provided that the property which is subject to the
assessment derives a special benefit from the improvement or
service.36
35Atlantic Coast Line R. Co. v. City of Gainesville, 91 So.
118, 121 (Fla. 1922) (quoting Page & Jones on Taxation by
Assessment, Section 553, pp. 896, 897).
36Special assessments are available under any of the
governance structures described in this report under the caption
"GOVERNANCE STRUCTURE -- Governance Alternatives." In addition to
other specific legislative authorization, Section 197.3631, Florida
Statutes, provides:
Section 197.3632 is additional authority for
local governments to impose and collect
special assessments supplemental to the home
rule powers pursuant to ss. 125.01 and 166.021
and Chapter 170, or any other law.
A local government is defined as "... a county, municipality, or
special district levying non -ad valorem assessments."
61
Special Benefit Requirement
The Florida Supreme Court has determined in Meyer v. City of
Oakland Park, 219 So.2d 417 (Fla. 1969) that the benefit required
for a valid special assessment consists of more than simply an
increase in market value but includes both potential increases in
value and the added use and enjoyment of the property. In Meyer,
the Court upheld a sewer assessment on both improved and
unimproved property, stating that the benefit need not be direct
or immediate but must be substantial, certain and capable of being
realized within a reasonable time. Nor must the benefit be
determined in relation to the existing use of the property. In
City of Hallandale v. Meekins, 237 So.2d 318 (4th DCA 1970),
aff'd, 245 So.2d 253 (Fla. 1971), the Court indicated that the
proper measure of benefits accruing to property from the assessed
improvement was not limited to the existing use of the property,
but extends to any future use which could reasonably be made.
Although the benefit derived need not be direct and
immediate, it must be special and peculiar to the property
assessed and not a general benefit to the entire community.
Services which are provided by a government may be essential to
the public welfare but not provide the special benefit necessary
for the imposition of a valid assessment. In Crowder v. Phillips,
1 So.2d 629 (Fla. 1941), a special .assessment for the
establishment and maintenance of a hospital was found to not
afford a special or peculiar benefit to the real property
assessed. The Court reasoned that a hospital provided benefits to
62
the entire community because of its availability to any person and
that no logical relationship existed between the construction and
maintenance of the hospital and the assessed property. In
Whisnant v. Stringfellow, 50 So.2d 885 (Fla. 1951), an assessment
for the county health unit was also held to be invalid in that it
benefited everyone in the county, regardless of their status as
property owners.
In Fire District No. 1 of Polk County v. Jenkins, 221 So.2d
740 (Fla. 1969), the Supreme Court found that necessary special
and peculiar benefits resulted from the levy of an assessment for
fire protection against mobile home rental spaces. The Court
found the presence of special and peculiar benefits from the
resulting decrease in insurance, protection of the public safety,
enhancement of business property and better service to tenants.
Other assessed services found to have provided the requisite
special benefit are garbage collection37; erosion control groin
systems38; sewer improvements39; and street improvements40.
Generally, the governing authority levying the special
assessment must make a specific determination as to the special
benefit received by the property to be assessed.41 However, a
37Charlotte County v. Fiske, 350 So.2d 578 (Fla. 2d DCA 1977).
38City of Treasure Island v. Strong, 215 So.2d 473 (Fla.
1968).
39City of Hallandale v. Meekins, supra.
40Atlantic Coast Line R. Co. v. City of Gainesville, supra,
and Bodner v. City of Coral Gables, 245 So.2d 250 (Fla. 1971).
41City of Fort Myers v. State, 117 So. 97 (Fla. 1928).
63
specific finding by the governing body is not required in all
cases. When a particular improvement, by its nature, is designed
to afford special or peculiar benefits to property within the
proximity of the improvement, it is presumed that special or
peculiar benefits will accrue to the property. In City of
Treasure Island v. Strong, supra, the Supreme Court found that
special assessments levied for the construction of an erosion
control groin system were valid because the system would
inherently benefit the property it protected. Street improvements
and sanitary sewer systems have also been found to inherently
benefit abutting and other property. In City of Hallandale v.
Meekins, supra, the Court held that a sanitary sewer system is by
its nature designed essentially to afford special or peculiar
benefits to abutting or other property within the protective
proximity of the improvement. See also Bodner v. City of Coral
Gables, 245 So.2d 250 (Fla. 1971) where the court found that there
was no need for the city to make an express determination of
special benefits inuring to property assessed for street
improvements, as they were inherently beneficial.
Apportionment Requirement
Once a determination has been made that an assessed
improvement or service specially benefits the properties within a
district, then the assessment must be "fairly and reasonably
apportioned" among the benefited properties.42 The manner of the
apportionment of the assessment is immaterial and may vary
42Parrish v. Hillsborough County, 123 So. 830 (Fla. 1929).
64
provided that the amount of assessment for each property does not
exceed the proportional benefits it receives as compared to other
1
properties.43
In City of Fort Lauderdale v. Carter, 71 So.2d 260 (Fla.
1954), an assessment for garbage, waste and trash collection was
apportioned based upon the value of the property. The Court held
this assessment to be invalid in that apportioning on the basis of
value did not bear any reasonable relationship . to the services
provided. By comparison, the Court found in City of Naples v.
Moon, 269 So.2d 355 (Fla. 1972), that the levying of an assessment
for improved parking facilities was valid, because it set specific
guidelines to measure the benefits afforded to the property
assessed. The guidelines were "value of the property benefited,
relative floor space of each improved property, its kind,
susceptibility to improvement, and the maximum annual benefits to
be conferred thereon. "44 Examples of other methods of
apportionment which have been upheld are sewer improvements on a
square foot basis,45 street improvements on a lineal front foot
43South Trail Fire Control District, Sarasota County v. State,
273 So.2d 380 (Fla. 1973) . - --
44City of Naples v. Moon, at 358.
45Meyer v. City of Oakland Park, supra.
65
basis46 and improvements benefitting downtown business properties
on an ad valorem basis in a downtown redevelopment scenario.47
In determining the reasonableness of the apportionment, the
courts generally give deference to the legislative determination
of a local government. In Rosche v. City of Hollywood, 55 So.2d
909, 913 (Fla. 1952), the Florida Supreme Court stated:
The apportionment' of assessments is a
legislative function and if reasonable men
differ as to whether land assessed was
benefited by the local improvement the •
determination as to such benefits of the city
officials must be sustained.
Subsequent case law continues to follow this rule, provided the
basis for apportionment has some logical relationship to the
benefit received.
Collection Alternatives
The traditional method of collecting special assessments is
similar that associated with mortgage loans. A notice of lien is
recorded in an amount equal to each property's total share of the
46Bodner v. City of Coral Gables, supra.
47City of Boca Raton v. State of Florida, 17 Fla. L. Weekly
S142 (February 27, 1992). Caution should be used in relying upon
this decision to justify an apportionment of a special assessment
based on assessed value under differing facts. The project or
program to be provided with the special assessment proceeds must
be of a character or nature that the benefit to be received by the
assessed property is an economic benefit that can be apportioned
based upon the assessed value of the property. In most instances,
utilization solely of assessed value as the apportionment method
cannot be justified factually. See City of Naples v. Moon.
The City of Boca Raton opinion issued by the Florida Supreme Court
adopted substantial portions of the amicus brief prepared and filed
by Nabors, Giblin & Nickerson, P.A., on behalf of the Florida
League of Cities.
66
capital cost. In the event of a non - payment, the entire amount due
is accelerated and the assessment lien foreclosed. The credit
market does not view the traditional collection methodology with
great favor for two principal reasons: (i) it requires an
extraordinary exercise of political will to foreclose upon any
residential property and (ii) the foreclosure process is frequently
resisted, resulting in a protracted litigation prior to payment.
More recently, local governments (including special districts)
have been authorized to collect special assessments on the ad
valorem tax bill.48 This tax bill collection method is much more
highly favored by the credit market because the special assessments
are collected in the same manner as ad valorem taxes. No specific
enforcement action is required by the governmental unit that
imposed the assessment.
The statutory process for collecting a special assessment on
the ad valorem tax bill begins a year in advance of collection.
The first step is the adoption of a resolution indicating the
governmental unit's intent to use the method. The resolution must
be adopted after a public hearing noticed by publication four weeks
in advance. This resolution, which does not obligate the
governmental unit to use the method or impose a special assessment,
must be sent to the Tax Collector, the Property. Appraiser and the
Department of Revenue by January 10. By June 1, the Property
Appraiser must provide to the County by list or by compatible
electronic media the legal description of the affected property and
48Section 197.3632, Florida Statutes.
67
the names and addresses of the property owners. From this
information, the governmental unit prepares an assessment roll
which must be adopted at a public hearing prior to September 15.
The local government is required to publish notice of this hearing
and provide individual notices to the affected property owners by
first class mail. After the public hearing and the adoption of the
assessment roll, the assessment roll is certified to the Tax
Collector who includes the special assessment on the ad valorem
tax bill. The special assessments are then collected by the Tax
Collector in the same manner as ad valorem taxes, including the
sale of tax certificates in the event of nonpayment.
Impact Fees
General Description
Impact fees are charges imposed by local governments against
new development as a total or partial reimbursement for the cost
of additional facilities or services made necessary by the new
development.Q9 The function of impact fees is to regulate growth
by imposing on the newcomer, rather than the general public, the
cost of new facilities necessitated by his or her arrival. Impact
49The general restrictions on the imposition of impact fees
have been developed from the following cases within the State of
Florida: Broward County v. Janis Development Corporation, 311
So.2d 371 (Fla. 4th DCA 1975) ; Contractors and Builders Association
of Pinellas County v. City of Dunedin, 329 So.2d 314 (Fla. 1976);
Hollywood Inc. v. Broward County, 431 So.2d 606 (Fla. 4th DCA
1983); Town of Longboat Key v. Lands End. Ltd., 433 So.2d 574
(Fla. 2d DCA 1983); Home Builders and Contractors Association of
Palm Beach County v. Board - -of -- County Commissioners of Palm Beach
County, 446 So.2d 140 (Fla. 4th DCA 1983); City of Ormond Beach,
et al. v. Volusia County, 383 So.2d 671 (Fla. 5th DCA 1980); and
Seminole County v. City of Casselberry, 541 So.2d 666 (Fla. 5th DCA
1989) .
68
fees may be imposed by local government pursuant to its home rule
powers. Okeechobee County currently has the authority to impose
impact fees and the charter of a special district created jointly
by the County and the City pursuant to Section 125.01(5), Florida
Statutes, may contain the authority to impose impact fees. If the
governance alternative selected is a special district created by
the Legislature, the general or special act must include specific
authorization for the imposition of impact fees.
It may be desirable to impose impact fees upon development of
properties within the Study Area. If special assessments are
imposed on the vacant land in the Study Area to fund capital costs
of certain portions of a regional utility system, impact fees may
not be also be imposed to fund the same capital costs. To the
extent a special assessment is imposed on vacant land to apportion
the capital cost of creating and implementing a regional system
attributablelto the projected development on such vacant land, the
ability to additionally impose an impact fee is substantially
diminished.
Criteria to Impose Impact Fees
As interpreted by case law, a valid impact fee is required to
meet the following criteria:
(i) the fee is imposed to provide capital facilities
required to serve future development or new use and is not imposed
for operation and maintenance of such capital facilities;
69
(ii) there must be a rational nexus between the need for
the capital facilities and the growth development that bears the
burden of the impact fee;
(iii) there must be a rational nexus between the
expenditure of the impact fee revenue and the benefits received or
burden caused by the growth development;
(iv) the proceeds of the impact fee cannot exceed the
public facilities burden reasonably anticipated to be caused by
growth development; and
(v) the impact fee proceeds are to be held in trust to
be used exclusively to provide the growth necessitated capital
improvements.
An estimate of the revenue to be generated by an impact fee
against vacant land requires further study of the cost :of the
projects and a decision on the methodology to be used in developing
an impact fee for a regional utility system.
User Rates or Service Delivery Fees
[to come]
70
GENERAL LAW REVENUE SOURCES
General Legislative Authorization Issues
Funding a regional utility system by a tax source other than
an ad valorem tax requires general law authority from the Florida
Legislature. The Florida Constitution provides that all forms of
taxation except ad valorem taxation are preempted to the;State
except as provided by general 1aw.50 The Florida Constitution
further provides that counties and municipalities shall, and
special districts may, be authorized by law to impose ad valorem
taxes and may be authorized by general law to impose other taxes.51
In other words, authority to impose a non -ad valorem tax is
required to be provided by general law and may not be provided by
special act of the Legislature.
The legislation authorizing a tax source to fund a regional
utility system may provide for the imposition of the tax in a
variety of ways. The legislation may authorize the imposition of
the tax by any of the alternatives described in the section of this
report under the caption "GOVERNANCE STRUCTURE -- Governance
Alternatives." Our recommended alternative, a home rule special
district created by the County pursuant to Section 125.01(5),
Florida Statutes, could be authorized to levy the tax by general
law. Or the Legislature may impose the tax directly instead of
allowing a local entity to impose the tax.
50Article VII, Section 1, Florida Constitution.
51Article VII, Section 9, Florida Constitution.
71
Regardless of the alternative chosen for imposing the tax, the
legislation may limit the tax to the Study Area. Such a levy would
be of little consequence as the cost of needed infrastructure in
the Study Area far exceeds the community's reasonable ability to
produce sufficient revenue. However, the Legislature may by
general law authorize a tax in only one area of the state as long
as the classification of the area is reasonable and bears a
reasonable relationship to the purpose of the act.52 Such
authority has been relied upon by the Legislature in authorizing
Dade County alone among Florida counties to impose certain local
taxes, including a documentary stamp tax for affordable housing and
a convention development tax.53 The courts have upheld such
legislative authority.54 Another example of the Legislature
limiting the authority to impose a tax to a limited area is the one
cent high tourism impact tax on the tourist tax base authorized to
Orange County and Osceola County.55 Relying upon this authority to
make reasonable classifications, the potential for levying a tax
52
Article III, Section 11(b), Florida Constitution, provides:
In the enactment of general law on other
subjects, political subdivisions or other
governmental entities may be classified only
on a basis reasonably related to the subject
of the law.
53Chapter 83 -220, Laws of Florida, as amended by Chapter 84-
270, Laws of Florida; and Section 212.0305(4)(b), Florida Statutes.
54See, Golden Nugget Group v. Metropolitan Dade County_, 464
So. 2d 535 (Fla. 1985) and Thomas v. Department of Revenue, 466
So.2d 1069 (Fla. 1985).
55Section 125.0104(3)(0), Florida Statutes.
72
within the South Florida Water Management District to assist in
cleaning up Lake Okeechobee should be fully explored.
Assistance of the South Florida Water Management District as a
Funding Conduit
The South Florida Water Management District is one of five
special taxing districts created in 1972 to manage water resources.
The South Florida Water Management District encompasses two major
basins, the Big Cypress Basin and the Okeechobee Basin. The South
Florida Water Management District is also, in essence, the
successor to the Central and Southern Florida Flood Control
District which was created in 1949 to serve as a local sponsor.for
a massive, federally authorized flood control project intended to
temper the region's extremes of devastating hurricanes and
excessive dry spells.
Although flood control is a major concern, the South Florida
Water Management District's mission has evolved to address South
and Central Florida's changing water resource protection and
conservation needs. Major initiatives in this area are the
Kissimmee River restoration, the restoration of Lake Okeechobee and
the Everglades restoration.
These projects have had severe economic impacts upon the Study
Area. Conversely, the Study Area is affected by pollution in Lake
Okeechobee and in all probability septic and wastewater related
discharges from the Study Area are a significant contributor to
pollution of the lake and its tributaries.
73
The Legislature has recently recognized this dilemma and
authorized preferential assistance to areas like the Study Area.56
At the same time the South Florida Water Management District has
also recognized the need to assist the region on the north shore
of Lake Okeechobee in moving forward with regionalized water and
sewer infrastructure.57 As well, the South Florida Water
Management District recently entered into a settlement stemming
from a Federal lawsuit charging that the State and the South
Florida Water Management District failed to protect Everglades
National Park and Loxahathee National Wildlife Refuge. The
settlement resulted from the change in the governor's office which
demonstrated an overriding commitment to the Everglades
restoration. This settlement and its ramifications have yet to be
completely finalized and determined. It is possible that the
federal government may also be a funding partner if regional
sewering of the Study Area meets the government's objective of
removing a source of pollution to Lake Okeechobee. In light of the
above, the South Florida Water Management District is a likely
candidate to serve as a funding source or conduit for other state
or federal funding.
For example the South Florida Water Management District is
authorized to levy 8 /10th of a mill and has only levied a little
under 6/10 of a mill for the last three years. With a taxable base
5692_132, §18, Laws of Florida - See Appendix F.
57Cooperative Funding Agreement between the South Florida
Water Management District and the County dated April 9, 1992; see
Note 23 supra.
74
throughout the district of roughly 215 billion dollars, a levy of
1 /50th of a mill would yield $ . A governance
alternative for the entire Study Area, able to fairly and
efficiently provide water and sewer infrastructure to the entire
Study Area in a series of phases over a period of years would be
the most effective way to work with the South Florida Water
Management District and maximize cooperative intergovernmental
relationships and assistance to achieve the goals and objectives
of both entities.
As the consideration of a regional water and sewer service
provider evolves, so should the analysis of alternatives for
seeking assistance and cooperation from the South Florida Water
Management District.
75
PHASE II REQUIREMENTS
Scope of Work
Phase II consists of the tasks necessary to create a consensus
to develop the governance structure to provide a regional water and
wastewater utility system for the Study Area. Phase III would then
consist of the tasks necessary to create a regional governance
structure and develop appropriate revenue sources.
Task 1. Prepare a non - binding interlocal agreement to provide an
immediate schedule and vehicle, through a series .of local
workshops between the City, the County and the Okeechobee
Beach Water Association, to develop community consensus
which identifies and generally outlines the financial and
policy details of the consolidation of facilities and
services in the Study Area.
Task 2. Assist in determining specific boundaries of the area
encompassing the proposed special district and, if
needed, preparation of a Study Area database from the
Property Appraiser's records.
Task 3. Review the viability and refine the selected option for
the provision of regional water and wastewater services
to the Study Area.
Phase III
Task 1. If required, identify and seek legislative changes or
authorization from the Florida Legislature.
Task 2. Based upon the consensus developed in Phase II, prepare
the special district charter and necessary ordinances to
76
create the district and present same to the County, City
and Okeechobee Beach Water Association.
Task 3. Prepare and present binding agreements by and between the
City, County and Okeechobee Beach Water Association which
refine and implement the consensus developed in Phase II.
Task 4. Provide a Scope of Services to develop district revenue
options including ad valorem taxes and non -ad valorem
revenues such as special assessments, impact fees, user
fees and other sources of revenue.
Task 5. Identify list of policy decisions for the governing board
of the district that are necessary to finalize the
recommended funding mechanisms.
Task 6. Based on decisions made in developing a local consensus,
prepare a Phase III Summary Report of Recommendations to
include an implementation plan and actions and necessary
tol create a regional water and wastewater utility
governance structure.
Anticipated Schedule
For purposes of this report, it is assumed that Okeechobee
County desires to create a governance structure at the earliest
possible date. It is contemplated that the Phase II tasks would
be completed within 120 calendar days of receiving authorization
to proceed.
Estimated Cost
The cost of professional services associated with this project
is difficult to estimate with precision. The estimate submitted
77
as part of this report encompasses only the services to be provided
by Nabors, Giblin & Nickerson, P.A. We have assumed 4 to 5
working group meetings and that the governing bodies of the
entities involved will meet, cooperate in a statesmanlike fashion
and make policy decisions on a timely basis. It is estimated that
the total Phase II fee for the Firm would range from $ to
$ and would be based on the following hourly rates:
Hourly Rates for the Firm
1. Firm principals: $150 per hour
2. Senior firm associates: $125 per hour
3. Firm Associates: $100 per hour
4. Legal Clerks: $50 per hour
In addition to the above hourly rates, the Firm would seek
reimbursement for actual costs incurred, such as photocopies, long
distance telephone charges, travel expenses and overnight delivery
services. Any travel expenses would be in accordance with Section
112.061, Florida Statutes. Time incurred in travel would be billed
at one -half the above specified hourly rates.
78
APPENDIX A
CITY WATER TREATMENT PROCESS
1
LIME SLUDGE ^Z/•
BASIN \v_\
BACK WASH
WATER BASIN
■
NEW SAND
FILTERS•
FILTER
SLUDGE
MAP 1
/LIME SOFTENING 0.25 mg.
1.5 mg.
CLEARW ELL
c
c
0
T �TRANS(ER PIT
OLD SAND.
FILTERS
1
.CHLORINE
.TREATED WATER
(2.6 mgd.)
OVERFLOW
1.000
,913^a
0.5 mg.
COAGULATION
BASIN
CITY OF OKEECHOBEE
GENERAL PROCESS ‘VATER DIAGRAM
ALUM.
RAW WATER
(2.58 mgd.)
APPENDIX B
LOCATION OF CITY WATER INTAKE STRUCTURE
f o
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APPENDIX C
LAB RESULTS
[to come]
APPENDIX D
CONSENT ORDER BETWEEN CITY AND DER
I
OKEECHODEE COUNTY TEL :' 813 - 763 -9529
STATE OF FLORIDA DEPARTMENT
Or ENVIRONMENTAL REGULATION,
Complainant,
vs, OOC Case No. B9 -0545
CITY 017 OKEECHOBBE,
Respondent.
Jun 04 ('" 14:26 No .003 P.02
vim"
CONSENT AGREEMENT
Pursuant to the provisions of Sections 403.121(2) and 120.57(3), Florida
Statutes (F,S.), and Florida Administrative Code (F.A.C.) Rule 17- 103.110, this
Consent Agreement is entered into between the State of Florida Department of
Environmental Regulation ( "Department") and CITY OF OKEECHOBEE ('Respondent ")
to reach settlement of certain matters at issue between the Department and
Respondent.
The Department finds and Respondent admits the following:
1. The Department Is the-administrative agency of the State of Florida
which has the authority to administer and enforce the provisions of Chapter 403,
Florida Statutes, and the rules promulgated thereunder, Florida Administrative
Code Chapter 17.4, 17.550, 17 -555, 17 -560, and 17 -602. The Department has
Jurisdiction over the matters addressed in this Consent Agreement.
2, Respondent is a person within the Moaning of Section 403.031(5), F.S.
3. Respondent is the owner and operator of a drinking water system known
as the City of Okeechobee Water Treatment Plant ( "facility "), The facility is
located adjacent to U.S. Highway 78 West, west of U.S. Highway 441, Okeechobee
County, Florida.
4, Inspections by Department personnel and review of Department records
for the facility have documented the following deficiencies since at least 1986:
a. maximum total raw water pumped exceeding the rata] plant capacity
of 2.88 million gallons per day (MOD)
b, inadequate chlorine residuals in portions of the distribution
system.
c. poor fitter media condition (cementing of media)
item (b) has been partially addressed.
5. The deficiencies described In paragraph 4 of this Consent Agreement are
violations of Sections 403.161(1)(b) and 403.087(1), F.S., and of F.A.C. Rules
17- 550.510(6)(d) and 17- 555350.
6. On May 9, 1988, Respondent submitted to the Department an application
for a permit to expand the existing facility. On December 27, 1989, the
Department issued Permit Number WC- 47.149211 for expansion of the existing
facility. To date, no construction has been initiated under this permit.
7, On May 30, 1989, Respondent submitted to the Department an application
for a permit to construct a chloraminC booster station and to change the point
of application of powdered activated carbon, On September 201 1989, the
Department issued Permit Number WC-47- 165527 for these modifications. The
modifications were based on recommendations in the engineering report dated
February, 1989 prepared by Broome Engineering, Inc. which addressed the issues
OKEECHOBEE COUNTY
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modifications were based on recommendations In the engineering report dated
February, 1989 prepared by Broome Bnginaoring, Im wh1G1 addressed the issues
of low chlorine residuals . in the distribution system and taste and odor
problems. These modifications have boon completed and approved for use by the
Department.
8. On November 5, 1990, Respondent submitted to the Department a
groundwater feasibility study dated October; 1990, prepared by Rooso, Macon and
Associates, Inc.
9, On April 19, 1991, Respondent submitted to the Department an
application to modify the existing facility, including changes in the method of
pH adjustment, for further improvement of filter operation. On May 2, 1991,
Respondent submitted additional information to modify the application to include
modifications to expand and uprate the existing facility.
10. On April 19, 1991, Respondent submitted to the Department an
application for approval of the location of the walls for the proposed
groundwater treatment fadllty.
11. The Department and Respondent met informally on. numerous occasions,
most recently March 28, May 2, and May 10, 1991, to discuss the alleged
violations with a view toward their resolution.
THEREFORE, having reached a resolution of these matters pursuant to F,A,C,
Rule 17403.110(3), Respondent and the Department mutually agree and it is
ORDBR$D:
/ 12. Within thirty (30) days of execution of this Consent Agreement,
Respondent shall pay the Department $1,000.00 for costs and expenses incurred by
the Department dufing the investigation of this matter and the preparation and
tracking of this Consent Agreement, Payment shall be made by cashier's check or
money order payable to the "State of Florida Department of Environmental
Regulation" and mailed or delivered to the Department of Environmental
Regulation, Southeast District Office, 1900 South Congress Avenue, Suite A, West
Palm Beach, Florida 33406,
13. Respondent Is presently monitoring for chlorine residual and
bacteriological contaminants on n weekly basis at Everglades Elementary School.
Respondent shall continue weekly monitoring until notified in writing by the
Department that the frequency of monitoring may be modified. In the event that
the chlorine residual is determined, by either Respondent or the Department, at
any time to be less than the minimum as required by FAC 17-550.510(6)(d),
Respondent shall take steps to restore the residual to a minimum of 0.6 mg /1
total chlorine, within 24 hours of discovery.
V 14, Within 15 days of execution of this Consent Agreement, Respondent shall
submit to the Department a proposed timetable, including interim milestone
dates, fort
a. completion of the expansion and uprating of the existing
facility, and
b, pilot testing, permitting, and construction of the new groundwater
treatment facility. .
The timetable shall indicate that the expansion of the existing facility
•
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OKEECHOBEE COUNTY TEL:1- 813 - 763 -9529
Jun 04 99 14:27 No.003 P.04
shall be substentlnlly completed within 195 days from issuance of the required
permit(s), and that construction of the groundwater facility shall begin no
1 for than April 1, 1992, •
V 15, Within 75 days of execution of this Consent Agreement, Respondent shall
submit to the Department an engineering report addressing the problem of
inadequate chlorine residuals in the distribution system, in particular, at
Everglades Elementary School. The report shall contain recommendations for a
permanent solution of the problem; A proposed timetable for completion of the
modifications shall accompany the report,
16. The Department shall review the timetables submitted pursuant to
paragraphs 14 and 15 of this Consent Agreement. In the event modifications to
the proposed timetable(s) are deemed necessary by the Department, the Department
shall make written request to Respondent for such modifications. Within 1S days
of receipt of the Department's request, Respondent shall either revise the
timetable(s) accordingly uud eubiui6 the final version in writing to the
Department, or submit a written objection to tlic.request, including information
to Justify the Respondent's objection, If Respondent objects to the •
Department's regnest to modify ehe tlmetable(s), the parties shall meet within
15 days of the Department's receipt of Respondent's written objection to
negotiate a mutually acceptable timetable. Both parties shall make a diligent
effort to reach an agreement, If the parties are unable to reach an agreement
within 7 days of meeting, the Department shall establish the final timetable,
taking into comslderation all Additional information provided by the Respondent.
Respondent shall be. notified in writing of Department approval of the proposed
timetables, a 1espondent objects to tho Department's approval
regarding
the timetable(s), Respondent may file a Petition for Formal or Informal
Administrative Hearin Proceeding, pursuant to Section 120.57, ES,, and
Chapters 17 -103 and 28.5, P.A.C. Respondent shall have the burden to establish
the inappropriateness of the Department's determination, 'The petition must
conform with the requirements of F.A.C. Rule 28-5,210, and must be reclved.by
the Department's `Office of General Counsel, within 14 days after receipt of
notice from the Department of any determination Respondent wishes to challenge,
Failure to file a petition within this time period shall constitute a waiver by
Respondent of its right to request an administrative proceeding under Section
12037, F,S. Tho Department's determination, upon expiration of the 14 day time
period if no petition is filed, or the Department's Final Order as a result of
the filing of a petition, shall be incorporated by reference into this Consent
Agreement and made a part of it. All other aspects of this Consent Agreement
shall remain in full force and effect at all times, If Respondent seeks an
administrative proceeding pursuant to this paragraph, the Department may file
suit against Respondent in lieu of or in addition to holding the administrative
proceeding to obtain judicial resolution of all the Issues unresolved at the
tine of the request for administrative proceeding.
.17. The Department shall review the report submitted pursuant to paragraph
15 of this Consent Agreement, In the event additional information, modifications
or specifications are necessary for the Department to evaluate the report, the
(3)
OKEECHOBEE COUNTY
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Jun 04 9^ 14.28 No .003 P.05
f
u
Department shall make written request to Respondent for such information,
Respondent shall accordingly submit the requested Information in writing to the
Department within thirty (30) days of receipt of the request. Respondent shall
be notifed in writing of Department approval of the report.
18. In accordance with the tlmcframos in the timetable submitted pursuant
to paragraph 15 and approved by the Department pursuant to paragraph 16 of this
Consent Agreement, Respondent shall submit an application, together with any
required application fees; for any construction pormit(s) which may be required
for the modifications necessary to resolve the problem of inadequate chlorine
residuals in portions of the distribution system. •
19, In accordance with the timeframes in the timetable submitted pursuant to
paragraph 14b and approved by the Department pursuant to paragraph 16 of this
Consent Agreement, Respondent shall submit an application, along with any
required application foes, for any construction permit(s) which may be required
for construction of the groundwater treatment facility,
'20. The Department shall review the applications referenced in paragraphs 9,
10, 18, and 19 of this Consent Agreement, In the event additional information,
modifications or specifications are necessary to process the application(s), the
Department shall Issue a written request for information (RFI) to Respondent for
such information. Respondent shall accordingly submit the requested information
in writing to the Department within thirty (30) days of receipt of the request.
Respondent shall provide all information requested in any additional RFIs issued
by the Department within thirty (30) days of receipt of the request.
Z1, 'Within 30 days of issuance of any required permit(s), or within 30 days
or receipt of written Department approval of the proposed modifications if no
permits are required, .Respondent shall commence the approved tasks. All work
shall be completed in'accordance with the time frames contained in the
timetables approved by the Department pursuant to paragraph 16 of this Consent
Agreement. If permits are required, Respondent shall submit to the Department an
engineer's Certification of Completion of Construction and record drawings as
verification of completion of the required tasks, and shall receive Department
clearance before putting the facilities into service, If no permits are
required, Respondent shall provide written verification that all tasks have been
completed within the time frames specified in the approved timetable.
22. Respondent shall.submit a status report to the Department, signed and
sealed by the engineer -of- record, certifying 250, 50%, and 75% completion of
construction of.the groundwater treatment facility. Bach status report shall be
due within l0.days of completion of the percentage of construction that is being
certified. The status reports shall also contain a general description of the
work completed since the last report, and the status of work in progress. •
23, Upon execution of this Consent Agreement, Issuance by the Department
of the permit to expand the existing facility, and certification by the
engineer -of- record for the subject expansion that the applicable contract has
been executed and work under that contract has begun, the Department shall
release the first of four equal allocations of the additional connections to be
6Criet1 from the expansion of the existing facility. The second allocation shall
OKEECHOBEE COUNTY
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be released by the Department upon receipt of a completed satisfactory •
groundwater pilot study, and certification by the engineer -of- record that the
expansion of the existing facility is 50% complete, Theett {rd gllecatien. ell
beeeploased byyehe Deparim, ens upon ,completion of the expansion and.uprating of
the existing facility. The final ocetion eliall ie ffleastrd"by the Dcpartrneiir`
upon receipt of tfi'e engineer-of- record's certification of 50% completion of
construction of the groundwater facility, provided the expansion and uprating of
the existing facility has been completed and that facility has been cleared for
service. Notwithstanding this schedule of allocations, if the existing facility
exceeds its rated capacity, no connections (new or previously approved) shall be
approved and/or activated until the Department releases sufficient additional
capacity to meet the exceedance and to allow for further connections, unless the
exceedance is due to an abnormal occurrence which has been reported to the
Department pursuant to F.A.C. 17.602.360(1)(c). After the fourth allocation, no
additional capacity shall be made available until the groundwater facility has
boon cicarod for service.
24. Allocation shall be based on maximum daily flows determined as
follows:
a, For those connections that normally require a Department general
permit, maximum daily flows shall be calculated at 350 gpd multiplied by a 1.5
peaking factor per equivalent residential connection (ERC). For lino extensions
to serve connections other than single family homes, such as a convenience
store, the calculation of maximum daily flows shall be based on an average daily
flow estimate provided by the design engineer and multiplied by a 13 peaking
factor. This method of determining maximum daily flows is to be used only for
purposes of determining compliance with the terms of this Consent Agreement and
may not necessarily be applied to this facility under other circumstances or to
other facilities.
h. For those ccinnectians that normally do not require a Department
general permit,. such as infill activities to existing water mains, Respondent
shall not be required to obtain Department approval prior to connection,
Respondent shall submit to the Department, on a monthly basis, a report listing
all new connections, excluding replacement Connections (i.e., like - for -like
meter sizes), along with meter size, and length and diameter of the main
installed (excluding the service connection). The first report shall be due 30
days from the date of execution of this Consent Agreement. Successive reports
shall be due every 30 days for the following 5 months. Thereafter, a. report
shall be duo every 90 days, until the groundwater facility has been released for
service, unless this schedule is otherwise modified in writing by the
Department,
25, Within 30 days of execution of this Consent Agreement, Respondent
shall submit to the Department a copy of its current water conservation plan,
with specific details on how it shall be implemented and enforced.
26. Within 7 days of determining that the average daily flow at the
existing facility, as reported on the monthly operating report, is equal to or
eXcecd6 65% of the current.ratcd plant capacity, Respondent shall implement the
IS)
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water conservation measures as set forth in the water conservation plan. For
those months that water conservation measures aro in effect, Respondent shall
submit a written report to the Department within 7 days of the end of the
reporting month, indicating which water use restrictions are in effect, how the
restrictions are.bning vnfurc:ed, and a list of violators, if applicable.
27. Respondent shall maintain all applicable records, submit completed
Monthly Operating Reports.(MORs), maintain an Operations & Maintenance (0 & M)
log up•to•date and an•site, and report any plant disruption to the Department
pursuant to F,A.C, Chapters 17555 and 17602,
28. The existing faculty shall be operated In such a manner that the
maximum level of efficiency is maintained at all times. The personnel in charge
of the facility shall meet all requirements for operation, supervision, and /or
maintenance of the treatment facilities pursuant to F.A,C. Chapters 17 -555 and
17 -602.
OKEECHOBEE COUNTY
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14:30 No .003 P.08
29. Upon resolution of the problem of inadequate chlorine residuals in
the distribution syatem, Department clearance of the modifications to the
existing facility, land Department clearance of the groundwater treatment
facility, this Consent Agreement shall be deemed satisfied.
30, The Respondent agrees to pay the Department stipulated penalties in
the amount of $200,00 for each and every day Respondent falls to timely comply
with atr' of the requirements of paragraphs 17 and 20 of this Consent Agreement;
anti $400,00 for cacti and every day Respondent fails to comply with any of the
requirements of paragraphs 12, 13, 14, 15, 16, 18, 19, 21, 22, 24b, 25, 26, 27,
28, 31, 32, and 36 of this Consent Agreement, including the interim milestone
dates contained .lu the timetables submitted to and reviewed by the Department
pursuant to paragraphs 14, 15 and 16 of this Consent Agreement, unless the time
frames are otherwise extended by the Department. A. separate stipelated penalty
shall be asscsscd for each violation of this Agreement. Within 30 days of
written demand from the Department, Respondent shall make payment of the
appropriate stipulated penalties to "The Department of Environmental
Regulation" by cashier's cheek or money order and shall include thereon the OUC
number assigned to this Consent Agreement and the notation "Pollution Recovery
Fund ", Payment shall be sent to the Department of Environmental Regulation,
1900 South Congress Avehue, West Palm Beach, Florida, 33406, The Department may
make demands for . payment at any time after violations occur. Nothing in this
paragraph shall prevent the Department from filing suit to specifically enforce
any of the terms of this Consent Agreement,
31, If any event occurs which causes delay, or the reasonable likelihood
of deley, in complying with the requirements of this Consent Agreement,
Respondent shall have the burden of proving that the delay was, or will be,
caused by circumstances beyond the reasonable control of Respondent and could
not have been, or cannot be, overcome by due diligence. Upon occurrence of an
event causing delay or upon becoming aware of a potential for delay, Respondent
shall promptly notify the Department orally and shall, within seven (7) days of
oral notification to the Department, notify the Department in writing of the
anticipated length and cause of the delay, the measures taken, or to be taken,
to prevent or minimize the delay, and the timetable by which Respondent intends
to implement these measures. If the delay or anticipated delay has been, or
will be, caused by circumstances beyond the reasonable control of Respondent,
the time for performance hereunder shall be extended for a period equal to the
agreed delay resulting from such dreumatanees. Such agreement shall adopt all
reasonable measures necessary to avoid or minimize delay, Failure of Respondent
to timely comply with the notice requirements of this paragraph shall
constitute a waiver of Respondent's right to request an extension of time for
compliance with the requirements of this Consent Agreement,
32. Respondent shall publish the following notice in a newspaper of
general circulation in Okeechobee County, Florida. The notice shall be
published one time only within 10 days after execution of the Consent Agreement
by the Department.
(7)
OKEECHOBEE COUNTY
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14:31 No .003 P.09
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
NOTICE OF CONSENT AGRBBMENT
The Dcpartmeft•of Environmental Regulation gives notice of agency action of
entering into a Consent Agreement with the City of Okeechobee pursuant to Rule
>11- 103.110(3), Florida Administrative Code, The Consent Agreement addresses
City of Okeechobee public water system deficiencies and the corrective actions
that are required to bring the system into complianeo with Department rules and
regulations. The Consent Agreement is available for public inspection during
normal business hours, 8;00 a.m. to 5 :00 pan., Monday through Friday, except
legal holidays, at the Department of Environmental Regulation, 1900 South
Congress Avenue, West Palm Bench, Florida.
Persons whose substantial interests are affected by this Consent
Agreement have a right to.petit[on for an administrative hearing on the Consent
Agreement. The petition must contain the information set forth below and must
be filed (received) in the Department's Office of qoneral Counsel, 2600 Blair
Stone Road, 'Tallahassee, Florida 32399.2400, within 21 days of receipt of this
notice. A copy of the Petition must also be mailed at the time of filing to
the District Office ntuned above at the address indicated. Failure to file a
petition .within the 21 days constitutes a waiver of any right such person has
to an administrative hearing pursuant to Section 120.57, P.S.
• The petition shall contain the following information: (a) The name,
address, and telephone number of each petitioner; the Department's
identification number for the Consent Agreement and the county in which the
subject matter or activity is located; (b) A statement of how and when each
petitioner received notice of the Consent Agreement: (e) A statement of how
each petitioner's substantial interests are affected by the Consent Agreement;
(d) A statement of the material facts disputed by petitioner, if any; (e) A
statement of facts which petitioner contends warrant reversal or modification
of the Consent Agreement; (f) A statement of which rules or statutes petitioner
contends require reversal or modification of the Consent Agreement; (g) A
statement of the relief sought by petitioner, stating precisely the action
• petitioner wants the Department to take with respeot to the Consent Agreement.
If a petition is filed, the administrative hearing process is designed
to formulate agency action. Accordingly, the Department's final action may be
different from the position taken by it in this Notice. Persons whose
substantial interests will be affected by any decision of the Department with
regard to the subject Consent Agreement have the right to petition to become a
party to the proceeding. The petition must conform to tho requirements
specified above and be filed (received) within 21 days of receipt of this
notice in the Office of General Counsel at the above address of the Department.
Failure to petition within the allowed time frame constitutes a waiver of any
right such person has to request a hearing under Section 120.57, P.S,, and to
participate as a party to this proceeding, Any subsequent intervention will
only be at the approval of the presiding officer upon motion filed pursuant to
Rule 2&5.207, F.A.C.
OKEECHOBEE COUNTY.
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Jun 04 92 14:32 No.003 P.10
• ► * * * :r M s M * M
33, Entry of this Consent Agreement does not relieve Respondent of the
need to comply with the applicable federal, state or local laws, regulations,
or ordinances.
34, The terms and conditions set forth In this Consent Agreement may be
enforced in a court of competent jurisdiction pursuant to Sections 120.69 and
403.121, F,S. Failure to comply with the terms of this Consent Agreement shall
constitute a violation of Section 403.859, F.S.
35. Respondent Is fully aware that a violation of the terms of this
Consent Agreement may result in the Department taking action pursuant to
Sections 403.121, 403.859, and 403,860, F,S, In the event it Is necessary for
the Department to seek judicial enforcement of this Consent Agreement,
Respondent shall pay to the Department all investigative costs, court costs and
expenses, as well as a reasonable attorney's fee for obtaining judgment from
the Circuit Court.
36. Respondent shall allow all authorized representatives of the
Department access to the property at reasonable times for the purpose of
determining compliance with the terms of this Consent Agreement and the rules
of the Department.
37. Ali plans, applications, and information required by this Consent
Agreement to be submitted to the Department should be sent to the Department of
Environmental Regulation, 1900 South Congress Avenue, West Palm Beach, Florida,
33406,
38. The Department hereby expressly reserves the right to initiate
appropriate legal action to prevent or prohibit any violations of applicable
statutes, or the rules promulgated thereunder that are not specifically
addressed by the terms of this Consent Agreement.
39. The Department, for and in consideration of the complete and timely
performance by Respondent of the obligations agreed to in this Consent
Agreement, hereby waives its right to seek judicial imposition of damages or
civil penalties for alleged violations outlined in this Consent Agreement.
Respondent waivet its right to an administrative hearing pursuant to Section
12056, Florida Statutes, on the terns of this Consent Agreement. Respondent
acknowledges its right to appeal the terms of this Consent Agreement pursuant
to Section 120,68, F.S., but waives that right upon signing this Consent
Agreement. .
• 40. The provisions of this Consent Agreement shall apply to and be
binding upon the parties, their officers, their director, agents, servants,
employees, successor, and assigns and all persons, firms, and corporations
acting under, through or for them and upon those persons, firms and
corporations in active concert or participation with them,
41, No modifications of the terms of this Consent Agreement shall be
effective until reduced to writing and executed by both Respondent and the
Department,
42, This Consent Agreement is the final agency action of the Department
pursuant to Section 120.69, F.S., and F.A.C. Rule 17.103,110(3), and It is
(0)
OKEECHOBEE COUNTY • TEL :A„„d13 -763 -9529 Jun 04 S,1, 14 :32 tNo.003 P.11
final and effective on the date filed with the Clerk of the Department unless a
Petition for AdininlstriUve Hearing is tiled in accordance with Chapter 120,
F.S. Upon the timely filing of a petition, this Consent Agreement will not be
effective until further order of the Department,
FOR THE R
Da
DENT;
. pr.. : • ')' ayor
City of Okeechobee
55 Southeast Third Avenue
Okeechobee, Florida 34974
DONE AND ORDERED this day of
Reach, Florida.
Copies furnished to;
STATE OF FLORIDA DEPARTMENT
OF ENVIRONMBNTAL R13CfTlLATION
A. tobt
14. SCO TT RFNYON,
Deputy Assistant Secretary
Southeast Florida District
1900 South Congress Avenue, Suite A
West Palm Beach, Florida 33406
Telephone; 407/433-2650
John Cook
John Drago
Susan Groover
,lamps Kirk
William Reese
William Zvara
Office of General Counsel, DEER, Tallahassee
Okeechobee County Health Department
Potable Water Permitting, DER /WPB
West Palm Beach DER Files
(10)
1991, in West Palm
APPENDIX E
DEBT ANALYSIS
6/10/1992
Schedule 1
REGIONAL UTILITY SYSTEM
CONSOLIDATION OF CITY WATER AND SEWER SYSTEM - ESCROW OF 1987 AND 1989 BONDS
- Sources and Uses of Funds -
Sources:
Par Amount of Bonds
Less Original Issue Discount
Existing Sinking Fund Accruals
Existing Debt Service Reserve Account
10,375,000.00
438,987.50
Total Sources 10,813,987.50
Uses:
Cost of Escrow
Underwriter's Discount and Costs of Issuance (2.5X)
Insurance Premium .45X total p&i
Transfer of Existing Debt Service Reserve
Debt Service Reserve Surety for balance of max. d/s (4%)
Contingency
10,006,500.00
259,375.00
90,785.00
438,987.50
18,000.00
340.00
Total Uses 10,813,987.50
- Assumptions Used in Financing -
(1) The dated and delivery date on the issue is 7/1/92.
(2) The 1987 bonds are paid thru an escrow which calls the bonds 1/1/97 a 102%
The 1989 bonds are paid thru an escrow which calls the bonds 1/1/2000 a 102 %.
(3) The 1992 issue is structured as level annual savings when compared to
the existing debt service.
(5) The savings are as follows:
Total Net Future Value Savings - 163,541.88
Total Net Present Value Savings - 91,665.01
Average Annual Savings - 6,675.18
X Savings to Bonds Refunded - .960%
THE CITY OF OKEECHOBEE, FLORIDA
WATER AND SEWER REFUNDING AND IMPROVEMENT REVENUE BONDS, SERIES 1987
Schedule of Outstanding Debt
Interest Calculation Date: 7/1/92
Period
Ending
1/ 1/93
7/ 1/93
1/ 1/94
7/ 1/94
1/ 1/95
7/ 1/95
1/ 1/96
7/ 1/96
1/ 1/97
7/ 1/97
1/ 1/98
7/ 1/98
1/ 1/99
7/ 1/99
1/ 1 /00
7/ 1 /00
1/ 1/01
7/ 1 /01
1/ 1/02
7/ 1/02
1/ 1/03
7/ 1/03
1/ 1/04
7/ 1/04
1/ 1/05
7/ 1/05
1/ 1/06
7/ 1 /06
1/ 1/07
7/ 1/07
1/ 1/08
7/ 1/08
1/ 1/09
7/ 1/09
1/ 1/10
7/ 1/10
1/ 1 /11
7/ 1/11
1/ 1/12
7/ 1/12
1/ 1/13
7/ 1/13
1/ 1/14
7/ 1/14
1/ 1/15
7/ 1/15
1/ 1/16
7/ 1/16
1/ 1/17
Outstanding
Principal
75,000.00
75,000.00
80,000.00
85,000.00
95,000.00
100,000.00
105,000.00
115,000.00
120,000.00
130,000.00
140,000.00
150,000.00
165,000.00
175,000.00
190,000.00
205,000.00
220,000.00
240,000.00
255,000.00
275,000.00
300,000.00
320,000.00
350,000.00
375,000.00
405,000.00
Rate
6.000%
6.200%
6.400%
6.600%
6.800%
7.000%
7.200%
7.400%
7.500%
7.600%
7.750%
7.750%
7.750%
7.750%
7.750%
7.875%
7.875%
7.875%
7.875%
7.875%
7.875%
7.875%
7.875%
7.875%
7.875%
Interest
181,879.38
179,629.38
179,629.38
177,304.38
177,304.38
174,744.38
174,744.38
171,939.38
171,939.38
168,709.38.
168,709.38
165,209.38
165,209.38
161,429.38
161,429.38
157,174.38
157,174.38
152,674.38
152,674.38
147,734.38
147,734.38
142,309.38
142,309.38
136,496.88
136,496.88
130,103.13
130,103.13
123,321.88
123,321.88
115,959.38
115,959.38
107,887.50
107,887.50
99,225.00
99,225.00
89,775.00
89,775.00
79,734.38
79,734.38
68,906.25
68,906.25
57,093.75
57,093.75
44,493.75
44,493.75
30,712.50
30,712.50
15,946.88
15,946.88
Total 4,745,000.00 5,978,908.13
Total
256,879.38
179,629.38
254,629.38
177,304.38
257,304.38
174,744.38
259,744.38
171,939.38
266,939.38
168,709.38
268,709.38
165,209.38
270,209.38
161,429.38
276,429.38
157,174.38
277,174.38
152,474.38
282,674.38
147,734.38
287,734.38
142,309.38
292,309.38
136,496.88
301,496.88
130,103.13
305,103.13
123,321.88
313,321.88
115,959.38
320,959.38
107,887.50
327,887.50
99,225.00
339,225.00
89,775.00
344,775.00
79,734.38
354,734.38
68,906.25
368,906.25
57,093.75
377,093.75
44,493.75
394,493.75
30,712.50
405,712.50
15,946.88
420,946.88
Schedule 2
Annual
Total
256,879.38
434,258.75
434,608.75
434,488.75
438,878.75
437,418.75
435,418.75
437,858.75
434,348.75
435,348.75
435,468.75
434,618.75
437,993.75
435,206.25
436,643.75
436,918.75
435,775.00
438,450.00
434,550.00
434,468.75
437,812.50
434,187.50
438,987.50
436,425.00
436,893.75
10,723,908.13 10,723,908.13
THE CITY OFECHOBEE, FLORIDA
WATER AND SEWER IMPROVEMENT REVENUE BONDS, SERIES 1989
Schedule of Outstanding Debt
Interest Calculation Date: 7/1/92
Schedule 2 -a
Period Outstanding Annual
Ending Principal Rate interest Total Total
1/ 1/93 95,000.00 6.000% 165,257.50 260,257.50 260,257.50
7/ 1/93 162,407.50 162,407.50
1/ 1/94 100,000.00 6.100% 162,407.50 262,407.50 424,815.00
7/ 1/94 159,357.50 159,357.50
1/ 1/95 105,000.00 6.150% 159,357.50 264,357.50 423,715.00
7/ 1/95 156,128.75 156,128.75
1/ 1/96 115,000.00 6.200% 156,128.75 271,128.75 427,257.50
7/ 1/96 152,563.75 152,563.75
1/ 1/97 120,000.00 6.300% 152,563.75 272,563.75 425,127.50
7/ 1/97 148,783.75 148,783.75
1/ 1/98 130,000.00 6.350X 148,783.75 278,783.75 427,567.50
7/ 1/98 144,656.25 144,656.25
1/ 1/99 135,000.00 6.400% 144,656.25 279,656.25 424,312.50
7/ 1/99 140,336.25 140,336.25
1/ 1 /00 145,000.00 6.500% 140,336.25 285,336.25 425,672.50
7/ 1/00 135,623.75 135,623.75
1/ 1/01 155,000.00 6.550% 135,623.75 290,623.75 426,247.50
7/ 1/01 130,547.50 130,547.50
1/ 1/02 165,000.00 6.650% 130,547.50 295,547.50 426,095.00
7/ 1/02 125,061.25 125,061.25
1/ 1/03 175,000.00 6.700% 125,061.25 300,061.25 425,122.50
7/ 1/03 119,198.75 119,198.75
1/ 1/04 190,000.00 6.750X 119,198.75 309,198.75 428,397.50
7/; 1/04 112,786.25 112,786.25
1/ 1/05 200,000.00 7.100% 112,786.25 312,786.25 425,572.50
7/ 1/05 105,686.25 105,686.25
1/ 1/06 215,000.00 7.100% 105,686.25 320,686.25 426,372.50
7/ 1/06 98,053.75 98,053.75
1/ 1/07 230,000.00 7.100% 98,053.75 328,053.75 426,107.50
7/ 1/07 89,888.75 89,888.75
1/ 1/08 250,000.00 7.100% 89,888.75 339,888.75 429,777.50
7/ 1/08 81,013.75 81,013.75
1/ 1/09 2.65,000.00 7.100% 81,013.75 346,013.75 427,027.50
7/ 1/09 71,606.25 71,606.25
1/ 1/10 285,000.00 7.125% 71,606.25 356,606.25 428,212.50
7/ 1/10 61,453.13 61,453.13
1/ 1/11 305,000.00 7.125% 61,453.13 366,453.13 427,906.25
7/ 1/11 50,587.50 50,587.50
1/ 1/12 325,000.00 7.125% 50,587.50 375,587.50 426,175.00
7/ 1/12 39,009.38 39,009.38
1/ 1/13 350,000.00 7.125% 39,009.38 389,009.38 428,018.75
7/ 1/13 - 26,540.63 26,540.63
1/ 1/14 375,000.00 7.125% 26,540.63 401,540.63 428,081.25
7/ 1/14 13,181.25 13,181.25
1/ 1/15 370,000.00 7.125% 13,181.25 383,181.25 396,362.50
7/ 1/15
1/ 1/16
7/ 1/16
1/ 1/17
Total 4,800,000.00 4,814,201.25 9,614,201.25 9,614,201.25
THE CITY' 1!4✓OKEECNOBEE, FLORIDA Schedule 2-b
SCHEDULE OF COMBINED OUTSTANDING DEBT SERVICE
Interest Calculation Date: 7/1/92
Outstanding Outstanding Total Annual Total
Period 1987 1989 Outstanding Outstanding
Ending Tax Debt Debt Debt Service Debt Service
1/ 1/93 256,879.38 260,257.50 517,136.88
7/ 1/93 179,629.38 162,407.50 342,036.88
1/ 1/94 254,629.38 262,407.50 517,036.88
7/ 1/94 177,304.38 159,357.50 336,661.88
1/ 1/95 257,304.38 264,357.50 521,661.88
7/ 1/95 174,744.38 156,128.75 330,873.13
•1/ 1/96 259,744.38 271,128.75 530,873.13
7/ 1/96 171,939.38 152,563.75 324,503.13
1/ 1/97 266,939.38 272,563.75 539,503.13
7/ 1/97 168,709.38 148,783.75 317,493.13
1/ 1/98 268,709.38 278,783.75 547,493.13
7/ 1/98 165,209.38 144,656.25 309,865.63
1/ 1/99 270,209.38 279,656.25 549,865.63
7/ 1/99 161,429.38 140,336.25 301,765.63
1/ 1/00 276,429.38 285,336.25 561,765.63
7/ 1/00 157,174.38 135,623.75 292,798.13
1/ 1/01 277,174.38 290,623.75 567,798.13
7/ 1/01 152,674.38 130,547.50 283,221.88
1/ 1/02 282,674.38 295,547.50 578,221.88
7/ 1/02 147,734.38 125,061.25 272,795.63
1/ 1/03 287,734.38 300,061.25 587,795.63
7/ 1/03 142,309.38 119,198.75 261,508.13
1/ 1/04 292,309.38 309,198.75 601,508.13
, 7/ 1/04 136,496.88 112,786.25 249,283.13
1/ 1/05 301,496.88 312,786.25 614,283.13
7/ 1/05 130,103.13 105,686.25 235,789.38
1/ 1/06 305,103.13 320,686.25 625,789.38
7/ 1/06 123,321.88 98,053.75 221,375.63
1/ 1/07 313,321.88 328,053.75 641,375.63
7/ 1/07 115,959.38 89,888.75 205,848.13
1/ 1/08 320,959.38 339,888.75 660,848.13
7/ 1/08 107,887.50 81,013.75 188,901.25
1/ 1/09 327,887.50 346,013.75 673,901.25
7/ 1/09 99,225.00 71,606.25 170,831.25
1/ 1/10 339,225.00 356,606.25 695,831.25
7/ 1/10 89,775.00 61,453.13 151,228.13
1/ 1/11 344,775.00 366,453.13 711,228.13
7/ 1/11 79,734.38 50,587.50 130,321.88
1/ 1/12 354,734.38 375,587.50 730,321.88
7/ 1/12 68,906.25 39,009.38 107,915.63
1/ 1/13 368,906.25 389,009.38 757,915.63
7/ 1/13 57,093.75 26,540.63 83,634.38
1/ 1/14 377,093.75 401,540.63 778,634.38
7/ 1/14 44,493.75 13,181.25 57,675.00
1/ 1/15 394,493.75 383,181.25 777,675.00
7/ 1/15 3b,712.50 30,712.50
1/ 1/16 405,712.50 405,712.50
7/ 1/16 15,946.88 15,946.88
1/ 1/17 420,946.88 420,946.88
517,136.88
859,073.75
858,323.75
861,746.25
864,006.25
864,986.25
859,731.25
863,531.25
860,596.25
861,443.75
860,591.25
863,016.25
863,566.25
861,578.75
862,751.25
866,696.25
862,802.50
866,662.50
862,456.25
860,643.75
865,831.25
862,268.75
835,350.00
436,425.00
436,893.75
Total 10,723,908.13 9,614,201.25 20,338,109.38 20,338,109.38
'`rr
PRO -FORMA - WATER AND SEWER IMPROVEMENT REVENUE BONDS, SERIES 1992
Comparison of 1992 Pro-Forma Debt Service to 1987 and 1989 Debt Service
Schedule 4
Present Value Calculation Date: 7/1/92 Present Value
Difference
Period Outstanding Refunding Annual At Arb. Yield
Ending Debt Service Debt Service Difference Difference 6.460%
1/ 1/93 517,136.88 512,750.00 4,386.88 4,386.88 4,249.61
7/ 1/93 342,036.88 314,483.75 27,553.13 25,855.86
1/ 1/94 517,036.88 539,483.75 ( 22,446.88) 5,106.25 ( 20,405.07)
7/ 1/94 336,661.88 309,477.50 27,184.38 23,938.43
1/ 1/95 521,661.88 539,477.50 ( 17,815.63) 9,368.75 ( 15,197.47)
7/ 1/95 330,873.13 304,072.50 26,800.63 22,146.72
1/ 1/96 530,873.13 549,072.50 ( 18,199.38) 8,601.25 ( 14,568.50)
7/ 1/96 324,503.13 298,008.75 26,494.38 20,545.01
1/ 1/97 539,503.13 558,008.75 ( 18,505.63) 7,988.75 ( 13,901.14)
7/ 1/97 317,493.13 291,378.75 26,114.38 .19,002.92
1/ 1/98 547,493.13 566,378.75 ( 18,885.63) 7,228.75 ( 13,312.70)
7/ 1/98 309,865.63 284,091.25 25,774.38 17,600.18
1/ 1/99 549,865.63 569,091.25 ( 19,225.63) 6,548.75 ( 12,717.55)
7/ 1/99 301,765.63 276,253.75 25,511.88 16,347.80
1/ 1/00 561,765.63 581,253.75 ( 19,488.13) 6,023.75 ( 12,097.10)
7/ 1/00 292,798.13 267,561.25 25,236.88 15,175.42
1/ 1/01 567,798.13 587,561.25 ( 19,763.13) 5,473.75 ( 11,512.11)
7/ 1 /01 283,221.88 258,281.25 24,940.63 14,073.45
1/ 1/02 578,221.88 598,281.25 ( 20,059.38) 4,881.25 ( 10,964.90)
7/ 1/02 272,795.63 248,251.25 24,544.38 12,996.71
1/ 1/03 587,795.63 603,251.25 ( 15,455.63) 9,088.75 ( 7,927.97)
7/ 1/03 261,508.13 237,601.25 23,906.88 11,879.34
1/ 1/04 601,508.13 617,601.25 ( 16,093.13) 7,813.75 ( 7,746.47)
761/04 249,283.13 225,916.25 23,366.88 10,895.78
1/ 1/05 614,283.13 630,916.25 ( 16,633.13) 6,733.75 ( 7,513.21)
7/ 1/05 235,789.38 213,260.00 22,529.38 9,858.14
1/ 1/06 625,789.38 643,260.00 ( 17,470.63) 5,058.75 ( 7,405.40)
7/ 1/06 221,375.63 199,715.00 21,660.63 8,894.16
1/ 1 /07 641,375.63 654,715.00 ( 13,339.38) 8,321.25 ( 5,305.96)
7/ 1/07 205,848.13 185,155.00 20,693.13 7,973.49
1/ 1/08 660,848.13 675,155.00 ( 14,306.88) 6,386.25 ( 5,340.24)
7/ 1/08 188,901.25 169,230.00 19,671.25 7,112.83
1/ 1/09 673,901.25 689,230.00 ( 15,328.75) 4,342.50 ( 5,369.22)
7/ 1/09 170,831.25 152,330.00 18,501.25 6,277.69
1/ 1/10 695,831.25 707,330.00 ( 11,498.75) 7,002.50 ( 3,779.58)
7/ 1/10 151,228.13 134,292.50 16,935.63 5,392.47
1/ 1/11 711,228.13 719,292.50 ( 8,064.38) 8,871.25 ( 2,487.43)
7/ 1/11 130,321.88 115,280.00 15,041.88 4,494.45
1/ 1/12 730,321.88 740,280.00 ( 9,958.13) 5,083.75 ( 2,882.35)
7/ 1/12 107,915.63 94,811.25 13,104.38 3,674.34
1/ 1/13 757,915.63 764,811.25 ( 6,895.63) 6,208.75 ( 1,872.97)
7/ 1/13 83,634.38 72,868.75 10,765.63 2,832.63
1/ 1/14 778,634.38 782,868.75 ( 4,234.38) 6,531.25 ( 1,079.28)
7/ 1/14 57,675.00 49,616.25 8,058.75 1,989.79
1/ 1/15 777,675.00 779,616.25 ( 1,941.25) 6,117.50 ( 464.32)
7/ 1/15 30,712.50 25,708.75 5,003.75 1,159.37
1/ 1/16 405,712.50 405,708.75 3.75 5,007.50 .84
7/ 1/16 15,946.88 13,263.75 2,683.13 583.39
1/ 1/17 420,946.88 418,263.75 2,683.13 5,366.25 565.13
Total 20,338,109.38 20,174,567.50 163,541.88
163,541.88 91,665.01
EXAMPLE OF REGIONAL UTILITY SYSTEM DEBT
PRO -FORMA WATER AND SEWER IMPROVEMENT REVENUE BONDS, SERIES 1992
Schedule of Acquisition Debt Service
Interest Calculation Date: 7/1/92
Period
Ending Principal Rate Interest
1/ 1/93 195,000.00 3.350% 317,750.00
7/ 1/93 314,483.75
1/ 1/94 225,000.00 4.450% 314,483.75
7/ 1/94 309,477.50
1/ 1/95 230,000.00 4.700% 309,477.50
7/ 1/95 304,072.50
1/ 1/96 245,000.00 4.950% 304,072.50
7/ 1/96 298,008.75
1/ 1/97 260,000.00 5.100X 298,008.75
7/ 1/97 291,378.75
1/ 1/98 275,000.00 5.300X 291,378.75
7/ 1/98 284,091.25
1/ 1/99 285,000.00 5.500X 284,091.25
7/ 1/99 276,253.75
1/ 1 /00 305,000.00 5.700% 276,253.75
7/ 1/00 267,561.25
1/ 1 /01 320,000.00 5.800% 267,561.25
7/ 1/01 258,281.25
1/ 1/02 340,000.00 5.900% 258,281.25
7/ 1/02 248,251.25
1/ 1/03 355,000.00 6.000% 248,251.25
7/ 1/03 237,601.25
1/ 1/04 380,000.00 6.150X 237,601.25
7/ 1/04 225,916.25
1/ 1/05 405,000.00 6.250% 225,916.25
7/ 1/05 213,260.00
1/ 1/06 430,000.00 6.300% 213,260.00
7/ 1/06 199,715.00
1/ 1 /07 455,000.00 6.400% 199,715.00
7/ 1/07 185,155.00
1/ 1/08 490,000.00 6.500% 185,155.00
7/ 1/08 169,230.00
1/ 1/09 520,000.00 6.500% 169,230.00
7/ 1/09 152,330.00
1/ 1/10 555,000.00 6.500% 152,330.00
7/ 1/10 134,292.50
1/ 1/11 585,000.00 6.500% 134,292.50
7/ 1 /11 115,280.00
1/ 1/12 625,000.00 6.550% 115,280.00
7/ 1/12 94,811.25
1/ 1/13 670,000.00 6.550% 94,811.25
7/ 1/13 72,868.75
1/ 1/14 710,000.00 6.550% 72,868.75
7/ 1/14 49,616.25
1/ 1/15 730,000.00 .6.5507. 49,616.25
7/ 1/15 25,708.75
1/ 1/16 380,000.00 6.550% 25,708.75
7/ 1/16 13,263.75
1/ 1/17 405,000.00 6.550% 13,263.75
Total
512,750.00
314,483.75
539,483.75
309,477.50
539,477.50
304,072.50
549,072.50
298,008.75
558,008.75
291,378.75
566,378.75
284,091.25
569,091.25
276,253.75
581,253.75
267,561.25
587,561.25
258,281.25
598,281.25
248,251.25
603,251.25
237,601.25
617,601.25
225,916.25
630,916.25
213,260.00
643,260.00
199,715.00
654,715.00
185,155.00
675,155.00
169,230.00
689,230.00
152,330.00
707,330.00
134,292.50
719,292.50
115,280.00
740,280.00
94,811.25
764,811.25
72,868.75
782,868.75
49,616.25
779,616.25
25,708.75
405,708.75
13,263.75
418,263.75
Schedule 3
Annual
Total
512,750.00
853,967.50
848,955.00
853,145.00
856,017.50
857,757.50
853,182.50
857,507.50
855,122.50
856,562.50
851,502.50
855,202.50
856,832.50
856,520.00
854,430.00
860,310.00
858,460.00
859,660.00
853,585.00
855,560.00
859,622.50
855,737.50
829,232.50
431,417.50
431,527.50
Total 10,375,000.00 9,799,567.50 20,174,567.50 20,174,567.50
APPENDIX F
LAWS OF FLORIDA
.1992 ,REGULAR SESSION
Ch. '.92 -132
Section 18. (1) It is the intent of the Legislature to vigorously protect and restore the
environment of this state. However, the Legislature recognizes that in some instances
such protection and restoration efforts may adversely affect the local economy in certain,
areas and the present and future revenue sources of the local government in such areas.
Further, it is the intent of the Legislature to minimize such adverse economic impacts.
(2) To the greatest extent practicable, and where 'consistent with criteria otherwise set
forth by law, a state agency which awards or recoxnmends any grant, loan, or other.
financial aid to municipalities or counties is encouraged'to' give preferential consideration
to municipalities or counties which have been adversely affected by an environmental
cleanup initiative conducted by a state or regional agency.
IN THE CIRCUIT COURT OF THE
NINETEENTH JUDICIAL CIRCUIT,
IN AND FOR OKEECHOBEE COUNTY,
FLORIDA
OKEECHOBEE BEACH WATER
ASSOCIATION, INC.,
Plaintiff,
vs.
CASE NO.: 93- 555 -CA
CITY OF OKEECHOBEE, FLORIDA,
and OKEECHOBEE COUNTY, FLORIDA,
Defendant.
DEFENDANT CITY OF OKEECHOBEE'S RESPONSE TO
PLAINTIFF'S REQUEST FOR ADMISSIONS
Defendant CITY OF OKEECHOBEE ( "CITY "), by and through its
undersigned counsel, hereby responds to Plaintiff OKEECHOBEE BEACH
WATER ASSOCIATION, INC.'S ( "OBWA ") Request for Admissions as
follows:
1. Admit
2. Admit
3. Admit
4. The City is without knowledge as to the truth and
accuracy of the list of members /customers which OBWA is currently
supplying with potable water within the Okeechobee 201 Facilities
Planning Area as reflected in Exhibit "J" attached to Plaintiff's
Amended Complaint for Declaratory Judgment.
5. The City is without knowledge as to the accuracy of
Composite Exhibit "K," attached to Plaintiff's Amended Complaint
for Declaratory Judgment, which purportedly identifies the parcels
of land owned by Plaintiff's members /customers to which Plaintiff
is currently supplying potable water within the Okeechobee 201
Facilities Planning Area.
6. The City denies the statement as made. The City admits
that OBWA owns a water distribution system through which it
delivers water purchased from the City to its members for sale to
said members.
7. The City denies the statement as made. The City admits
that OBWA owns a water distribution system through which it
delivers water purchased from the City to its members for sale to
said members.
8. The City denies the statement as made. The City admits
that OBWA owns a water distribution system through which it
delivers water purchased from the City to its members for sale to
said members.
9. Admit
10. Deny
11. Admit
12. The City is without knowledge as to the precise
boundaries of the service area which OBWA has proposed to serve in
its application for consumptive use permit to the South Florida
Water Management District.
13. Admit
14. Admit
15. Admit
16. Admit
17. Deny
18. Deny
19. Deny
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing has been
forwarded this 5th day of October, 1993 to: Burton C. Connor,
Esq., 301 Northwest 5th Street, Okeechobee, FL 34972 via overnight
mail; Steve Walker, Esq., Messer, Vicker, Caparello, et al., 2000
Palm Beach Lakes Blvd., Suite 900, West Palm Beach, FL 33409 via
overnight mail; and John D. Cassels, Jr., Esq., Attorney for
Okeechobee County, 400 N. W. Second St., P. O. Box 968, Okeechobee,
FL 34973 -0968 by U.S. Mail.
Richard A. Lots
LANDERS & PARSO
P. O. Box 271
Tallahassee, FL 32302
(904) 681 -0311
and
John R. Cook, City Attorney
FBN 262951
202 N.W. 5th Avenue
Okeechobee, FL 34972
(813) 467 -0297
and
Michael Wm. Morell
FBN 570280
310 West College Avenue,
Room 222
Tallahassee, FL 32301 -1406
(904) 425 -8300
Attorneys for City of
Okeechobee
AFFIDAVIT
STATE OF FLORIDA
COUNTY OF OKEECIHOBEE
BEFORE ME, the undersigned autho-i,ty, this gay personally
appeared JAMES F. T'TRK, who is personally known to me, or who has
produced as identification; and who being
by me first duly sworn, under oath says:
I JAMES E. KIRK, Mayor of the City of Okeechobee, after being
first duly sworn, state that the issuance of Water Use Permit no.
921204 -10 by the South Florida Water Management District to the
Okeechobee Beach Water Association, Inc, will have the effect of
impairing, polluting, or otherwise injuring the water resources of
the State of Florida
as ;et forth in the preceding request for
Leave to Amend Petition for Formal Administrative Hearing.
1993.
/JAMES E. KIRK
.cif f_ i ant
SWORN TO AND SUFSCRIBED before me this day of October,
i
NOTARY PUBLIC State of Florida
My Commission Expires:
Printed notary name
1` r
c» t. Coot
STAIR CIF L tom
4MM eFPT 24, 1994
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CITY OF OKEECHOBEE,
Petitioner,
vs. DOAH CASE NO.: 93 -5505
SOUTH FLORIDA WATER MANAGEMENT
DISTRICT and OKEECHOBEE BEACH
WATER ASSOCIATION, INC.,
Respondents.
CITY OF OKEECHOBEE'S MOTION TO STRIKE THE SOUTH FLORIDA WATER
MANAGEMENT DIS'TRICT'S MOTION TO DISMISS FOR LACK OF STANDING
Petitioner, CITY OF OKEECHOBEE ( "City "), by and through its undersigned
counsel and pursuant to Rule 60Q- 2.016, Florida Administrative Code ( "F.A.C. "), hereby
moves this tribunal to strike the Motion to Dismiss for Lack of Standing which was filed by
the Respondent South Florida Water Management District ( "SFWMD" or "District ") on
October 12, 1993 on the grounds that the motion was untimely filed. In support of its
motion the City states:
1. On September 14, 1993, the City initiated this administrative proceeding by
serving and filing a Petition for Formal Administrative Hearing ("Petition") with the
SFWMD which challenged the issuance of a water use permit by the District to the
Okeechobee Beach Water Association, Inc. (A copy of the first and last page of the City's
Petition including the date stamp and signature of the District's Deputy Clerk verifying that
the City's Petition was filed with the Clerk of the District on September 14, 1993 is attached
as Exhibit "A" and is incorporated by reference herein.)
2. On September 23, 1993, the Division of Administrative Hearings ('DOAH"
or 'Division ") received duplicate copies of the City's Petition which the District had referred
to DOAH to conduct a formal proceeding pursuant to Section 120.57, Florida Statutes. The
cover letter of transmittal which accompanied the District's referral of the City's Petition
to DOAH states that the petition was filed by the City on September 14, 1993. (A copy of
the District's cover letter of transmittal is attached as Exhibit 'B" and is incorporated by
reference herein.)
3. On September 29, 1993, DOAH issued its Initial Order and Notice in which
the Division informed the parties that the proceeding would be governed by Chapter 120,
Florida Statutes, and Chapters 60Q and 28 -5, Florida Administrative Code. (A copy of the
DOAH Initial Order and Notice is attached as Exhibit "C ".)
4. On October 12, 1993, the District filed a Motion to Dismiss for Lack of
Standing and a Request for Oral Argument with the DOAH Clerk's Office. (Copies of
DOAH's dated stamped copy of the cover letter of transmittal, the first page of the
District's Motion to Dismiss and the first page of the District's Request for Oral Argument
are attached as Exhibits 'D ", 'E" and "F ", respectively, and are incorporated by reference
herein.)
5.. The District's Motion to Dismiss for Lack of Standing should be stricken as
untimely filed. See, e.g., South Broward Citizens for a Better Environment, Inc. v. South
Broward County Resource Recovery Project. Inc., 502 So. 2nd 9 (Fla. 1st DCA 1986)(A
copy of the South Broward County Resource Recovery Project, Inc. case is attached as
Exhibit "G ".) DOAH Rule 60Q- 2.004(5), F.A.C., provides: "A respondent...may file motions
2
in opposition to a petition, but shall do so within twenty (20) days of the filing of the
petition. (Emphasis supplied.) Model Rule 28- 5.205, F.A.C., provides: "Motions in
opposition to a petition, which may be filed by any party, include motions to dismiss...and
shall be filed within twenty (20) days of service of the petition." (Emphasis supplied.)
Twenty days from September 14, 1993 (the date of filing and service of the City's Petition)
was October 4, 1993. The District's Motion to Dismiss was filed on October 12, 1993, eight
(8) days after the deadline by which it was required to have been filed under both the
DOAH and Model Rules.
WHEREFORE, the City of Okeechobee requests that the hearing officer enter an
order which grants this motion to strike and strikes the Motion to Dismiss for Lack of
Standing which was filed by the South Florida Water Management District in this
administrative proceeding on October 12, 1993 on the grounds that the motion was untimely
filed under DOAH Rule 60Q- 2.004(5) and Model Rule 28- 5.205, Florida Administrative
Code.
Respectfully submitted this 19th day of October, 1993.
Richard A. Lots
Fred McCormac
LANDERS & PARSONS
P. O. Box 271
Tallahassee, FL 32302
(904) 681 -0311
3
and
Michael Wm. Morell
310 W. College Ave., Room 222
Tallahassee, FL 32301 -1406
(904) 425 -8300
Counsel for Petitioner City of
Okeechobee
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that the original and one copy of the foregoing City of
Okeechobee's Motion to Strike the South Florida Water Management District's Motion to
Dismiss for Lack of Standing has been forwarded by hand delivery to the Clerk, Division
of Administrative Hearings, DeSoto Building, 1230 Apalachee Parkway, Tallahassee, FL
32399; and by U. S. Mail to Cecile I. Ross, Esq., South Florida Water Management District,
P. O. Box 24680, West Palm Beach, FL 33416 -4680; and Stephen A. Walker, Esq., Messer,
Vickers, Caparello, et al., 2000 Palm Beach Lakes Boulevard, Suite 900, West Palm Beach,
FL 33409, and Burton C. Conner, Esq., 301 N. W. 5th Street, Okeechobee, FL 34972 -2564
this 19th day of October, 1993.
Richard A. Lotspei
4
STATE OF FLORIDA
SOUTH FLORIDA WATER MANAGEMENT DISTRICT
CITY OF OKEECHOBEE,
Petitioner,
vs.
SOUTH FLORIDA WATER MANAGEMENT
DISTRICT and OKEECHOBEE BEACH
WATER ASSOCIATION, INC.,
Respondents.
CASE NO.: 93-
Permit Application No.
921204 -10
PETITION FOR FORMAL ADMINISTRATIVE HEARING
Petitioner, CITY OF OKEECHOBEE, through its undersigned
counsel, pursuant to Section 120.57(1), Fla. Stat., and Florida
Administrative Code Rule 40E- 1.521, hereby requests a formal
administrative hearing and in support thereof states:
PARTIES
1. The agency affected by this cause is the South Florida
Water Management District ( "District "), 3301 Gun Club Road, West
Palm Beach, Florida 33416 -4680. The District's file number for
this matter is Application No. 921204 -10, Wellfield for Okeechobee
Beach Water Association, Inc., Okeechobee County.
2. The Okeechobee Beach Water Association, Inc. ( "OBWA" or
"Association "), a not - for - profit association, is the applicant to
the District for a water use permit ( "Permit ") under the above -
referenced application number. The address of OBWA is 8840 Highway
78 West, Okeechobee, FL 34974.
3. Petitioner is the City of Okeechobee ( "City "), a
municipality and local government as defined by Section 180.01, and
Exhibit "A"
T
Cecile I. Ross
Attorney at Law
South Florida Water Management District
P. 0. Box 24680
West Palm Beach, FL 33416 -4680
Stephen A. Walker, Esq.
Messer, Vickers, Caparello, Madsen,
Lewis, Goldman & Metz
2000 Palm Beach Lakes Boulevard
Suite 900
West Palm Beach, FL 33409
r'ILEU WITH THE CLERK OF THE SOUTH
FLORIDA WATER MANAGEMENT DISTRICT
ON .s:'`C ( Lf
14
DEP ; CLERK
South Florida Water Management District
3301 Gun Club Road • P.O. Box 24680 • West Palm Beach, FL 53416-4680 • (407) 686 -8800 • FL WATS 1-800-432-2045
MGT 10 -04 -12
September 21, 1993
Sharyn L. Smith, Director
Division of Administrative Hearings
The DeSoto Building
1230 Apalachee Parkway
Tallahassee, FI 32399-1550
Dear Ms. Smith:
'G7
LI+ 1
G fi •/'.
? t—
Subject: Petition for formal administrative hearing filed by the City of Okeechobee,
objecting to proposed agency action regarding intent to issue Water Use
Permit Application No. 921204 -10 to Okeechobee Beach Water Association,
Inc.
The above - referenced permitting natter is being referred to your Division to conduct a
formal proceeding pursuant to Section 120.57(1), Florida Statutes.
On September 9, 1993, the Governing Board of the South Florida Water Management
District (District) accepted the petition filed by the City of Okeechobee. Without
relinquishing the right to file responsive pleadings and without admitting the validity of the
allegations set forth in the petition, the Board determined that the allegations within the
petition are sufficient to comply with the requirements of Rule 40E- 1.521, Florida
Administrative Code.
Enclosed
in duplicate are:
1. Proposed Agency Action: Water Use Staff Review Summary regarding Water
Use Permit Application No. 921204 -10.
2. Petition for Administrative Hearing filed by the City of Okeechobee on
September 14, 1993.
Governing Board.
Valerie Boyd, Chairman
Frank Williamson, Jr., Vice Chairman
Annie Betancourt
William Hammond
Betsy Krant
Allan Milledge
EXHIBIT "B"
Eugene K. Pettis
Nathaniel P. Reed
Leah G. Schad
Tiliord C. Creel, Executive Director
Thomas K. MacVicar, Deputy Executive Director
Sharyn L. Smith
September 21, 1993
Page 2
The District estimates that the length of time necessary to conduct final hearing in this
proceeding to be approximately two (2) days, and no more than three (3) days.
To date, the parties and their representatives are:
1. Representatives for City of Okeechobee
Richard A. Lotspeich
Landers and Parsons
P.O. Box 271
Tallahassee, FL. 32302
(904) 681 -0311
and
Michael Wm. Morell
310 W. College Ave.
Tallahassee, FL 32302
(904) 425 -8300
2. Counsel for Okeechobee Beach Water Association
Stephen A. Walker, Esq.
Messer, Vickers, Caparello, Madsen,
Lewis, Goldman, and Metz
2000 Palm Beach Lakes Boulevard
Suite 900
West Palm Beach, FL 33409
3. Counsel for South Florida Water Management District
Cecile I. Ross, Esquire
3301 Gun Club Road
West Palm Beach, Florida 33406
Sharyn L. Smith
September 21, 1993
Page 3
ESTIMATION OF HEARING OFFICER'S SERVICE TIME
The District's budget process, as well as its contract policy, requires the contract
project manager to monitor expenditures to avoid spending in excess of the budgeted
amount. The District estimates that preparation for, and officiating at, the final hearing in
this matter will require approximately thirty -six (36) hours of the Hearing Officer's time.
While the District recognizes that it is difficult at the initial stages of an administrative
hearing process to estimate the amount of time it will take to review pleadings, conduct
research, etc., the District must necessarily make an effort to estimate the total amount of
the Hearing Officer's time allocated for each, natter assigned to the Division of
Administrative Hearings. The above -noted estimation, however, is not binding. It is done
solely for fiscal management purposes.
It will be appropriate to schedule a hearing in Okeechobee County, Florida, since the
subject property is located therein.
Please let me know if you require any further information at this time.
Since
John J. Fumero
Senior Supervising Attorney
Office of Counsel
South Florida Water Management District
CIR/ts
Enclosures
cc: Richard A. Lotspeich /without attachments
Michael Wm. Morell /without attachments
Stephen Walker /without attachments
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South Florida Water Management DD'e'ft
C
3301 Gun Club Road • P.O. Box 24680 • West Palm Beach, FL 33416-4680 • (407) 686-8800 • FL ` T 1 -432 -2045
1933 t�L1 12 ' i 6:
MGT 10 -04 -12
October 10, 1993
The Honorable Linda Rigot
Hearing Officer
Division of Administrative Hearings
The DeSoto Building
1230 Apalachee Parkway
Tallahassee, FL 32399 -1550
Dear Ms. Rigot:
01\i1S101.1.OF
Rp�1i 11S1RtY►,� +r
HEARNGS
Subject: City of Okeechobee v. South Florida Water Management District and
Okeechobee Beachwater Association, Inc. DOAH Case No. 93- 005505 -CA
Please find enclosed in duplicate South Florida Water Management District's "Motion to
Dismiss" for filing in the above styled case.
Thank you for your assistance in this matter.
Sincerely,
Cecile I. Ross
Attorney
Office of Counsel
CIR/ta
Attachments
Governing Board:
Valerie Boyd, Chairman
Frank Williamson, Jr., Vice Chairman
Annie Betancourt
EXHIBIT "D"
William Hammond
Betsy Krant
Allan Milledge
Eugene K. Pettis
Nathaniel P. Reed
Leah G. Schad
Tilford C. Creel, Executive Director
Thomas K. MacVicar, Deputy Executive Director
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE IVES PM 31E44
RECE V D
CITY OF OKEECHOBEE,
Petitioner,
AGMIHISTRAI i'Vt
HEARIr lGS
v. DOAH Case No. 93- 005505
SOUTH FLORIDA WATER MANAGEMENT DISTRICT and
OKEECHOBEE BEACH WATER ASSOCIATION, INC.,
Respondents.
MOTION TO DISMISS FOR LACK OF STANDING
Respondent, SOUTH FLORIDA WATER MANAGEMENT DISTRICT, by and
through the undersigned counsel, files this MOTION TO DISMISS FOR
LACK OF STANDING, pursuant to Rule 60Q- 2.016, Fla. Admin. Code, and
in support thereof states the following:
1. On September 14, 1993, the City of Okeechobee (the "City ")
filed a Petition for Formal Administrative Hearing ( "Petition ")
challenging the proposed issuance of a water use permit to
Okeechobee Beach Water Association ( "OBWA ") pursuant to Permit
Application # 921204 -10.
2. With regard to the substantial interests affected by the
proposed agency action, the Petition states:
The City has a substantial interest in the quality,
quantity and availability of its water supply. This
interest will be adversely affected by the issuance of
the Permit to OBWA. The issuance of the Permit by the
District to OBWA will affect the substantial interests of
the City 'because it will result in a significant
reduction in the allocation of water to the City under
its water use permit, and, as such, will interfere with
the existing legal use of water by the City. City's
Petition, paragraph 9.
3. The Petition further stresses the economic interest that is at
the heart of the requested permit challenge, stating that:
EXHIBIT "E"
STATE OF FLORIDA h RECEIVED
DIVISION OF ADMINISTRATIVE HEAL ( i 12 4)1); 3' S4
CITY OF OKEECHOBEE,
petitioner,
vs.
OKEECHOBEE BEACH WATERASSOCIATION, INC., and
SOUTH FLORIDA WATER MANAGEMENTDISTRICT,
respondents.
O \V1.;1ON C�
• K A SGS
DOAH case No.# 93- 005505
REQUEST FOR ORAL ARGUMENT
Respondent, South Florida Water Management District (District), by and through its
undersigned counsel, pursuant to Rule 60Q- 2.016(4), Fla. Admin. Code, hereby respectfully
requests oral argument regarding the Motion to Dismiss for Lack of Standing filed by the
District and the
Motion to Dismiss filed by Respondent, Okeechobee Beach Water
Association, and states in support thereof that oral argument will be beneficial to the
Hearing Officer
proceeding.
in reaching a sound decision regarding the matters at issue in the
Respectfully submitted,
SOUTH FLORIDA WATER MANAGEMENT
DISTRICT
3310 Gun Club Road
P.O. Box 24680
West Palm Beach, Fl 33416 -4680
BY:
Cecile I. Ross
EXHIBIT "F"
SOUTH BROWARD CITIZENS v. SOUTH BROWARD COUNTY Fla. 9
Cite as 302 So.2d 9 (Fla.App. 1 Dist. 1986)
dence that reasonable fee would be $16,-
000, considering rate of $200 per hour
based on approximation of 80 hours of at-
torney's time.
Terrence P. O'Connor, of Morgan, Car -
ratt & O'Connor, P.A., Fort Lauderdale, for
appellant.
Donald R. Spadaro, of Roderman, Spada -
ro & Karmin, Fort Lauderdale, for appel-
lee.
ON MOTION FOR REHEARING
DOWNEY, Judge.
Appellant's petition for rehearing is
granted and our opinion of June 11, 1986 is
withdrawn and the following opinion is sub-
stituted in its place.
This is a timely appeal from two non -fi-
nal orders entered by the lower court re-
storing appellee /husband as the occupant
of the marital home and awarding ap-
pellant /wife temporary support, attorney's
fees, and suit money.
[1] These parties had been married for
only six months, though they had Lived
together periodically over a period of three
years. The husband is wealthy by most
standards and the wife has neither assets
nor income. He was allowed to remain in
the marital home upon finding comparable
housing for the wife, and was also required
to pay her $3,000 a month for rent and
temporary support. The wife contends the
amount of temporary alimony is inadequate
particularly in view of the standard of liv-
ing enjoyed by the parties during the mar-
riage. The factors to be used in determin-
ing the appropriate award of temporary
alimony are the standard of living enjoyed
by the parties during the marriage togeth-
er with the wife's needs and husband's
ability to pay. Belcher v. Belcher, 271
So.2d 7 (Fla.1972). We are unable to deter-
mine whether the trial court considered
these factors in arriving at the award of
temporary alimony. Thus further consider-
ation thereof appears indicated.
[2] The wife also complains that the
court erred in its award of temporary attor-
ney's fees of $4,000 and $2,000 costs. The
uncontradicted evidence in the record is
that a reasonable temporary fee would be
$16,000, considering a rate of $200 per
hour; that thirty hours had already been
consumed by counsel; and the witness
opined another fifty hours would probably
be required to conclude the case. The ex-
pert also testified that discovery of the
husband's estate would be difficult and a
C.P.A. testified it would take forty to sev-
enty -five hours of his time to properly dem-
onstrate the husband's financial picture.
While the court is not bound by expert
testimony regarding attorney's fees, nei-
ther can it be totally ignored. Thus, on the
record, we hold that the allowance of only
$4,000 temporary fees was an abuse of
discretion.
Accordingly, the order awarding attor-
ney's fees is reversed and remanded for
further consideration. On remand the trial
court is also requested to further consider
the evidence in the light of the factors
mentioned in Belcher and make sufficient
findings of fact to support his conclusion
regarding the appropriate award of tempo-
rary alimony.
DELL and GUNTHER, JJ., concur.
SOUTH BROWARD CITIZENS FOR A
BETTER ENVIRONMENT,
INC., Appellant,
v.
SOUTH BROWARD COUNTY RE-
SOURCE RECOVERY
PROJECT, INC., Appellee.
No. BO-61.
District Court of Appeal of Florida,
First District.
Oct. 13, 1986.
Rehearing Denied March 2, 1987.
Citizens organization brought motion
to dismiss application of corporation for
4
EXHIBIT "G"
r
10 Fla.
502 SOUTHERN REPORTER, 2d SERIES
electric power plant site certification, filed
with Department of Environmental Regula-
tion on the basis that corporation was not
proper applicant. The Electrical Power
Plant Siting Board adopted hearing offi-
cer's denial of citizen's motion to dismiss
and citizens appealed. The District Court
of Appeal, Shivers, J., held that citizens'
motion to dismiss application for electric
power plant site certification filed with De-
partment of Environmental Regulation was
untimely.
Affirmed.
1. Administrative Law and Procedure
€456, 467
Electricity €8.4
Corporation's application for electrical
power plant site certification, filed with
Department of Environmental Regulation,
constituted petition so that motion to dis-
miss application on basis that corporation
was not proper applicant was filed more
than seven months after the petition was
served and was thus untimely.
2. Administrative Law and Procedure
€467
Electricity €8.4
Even assuming 20-day deadline within
which motions in opposition to petition
must be filed had run from the date corpo-
ration became party to certification pro-
ceedings, motion to dismiss corporation as
applicant was untimely, despite contention
that motion to dismiss went to subject -mat-
ter jurisdiction of Electric Power Plant Sit-
ing Board and thus could be filed at any
time.
Frank A. Kreidler, Lake Worth, for ap-
pellant.
Susan F. Delegal, Broward Co. Gen.
Counsel, Ft. Lauderdale, Clifford A. Schul-
man, Timothy A. Smith, and Kerri L.
Barsh, of Greenberg, Traurig, Askew,
Hoffman, Lipoff, Rosen & Quentel, P.A.,
Sp. Counsel for Broward Co., Miami, C.
Lawrence Keesey, Dept. of Community Af-
fairs, Tallahassee, and Elizabeth D. Ross,
West Palm Beach, for appellee.
SHIVERS, Judge.
Appellant, South Broward Citizens for a
Better Environment, Inc., brings this ap-
peal from a final order of the Electrical
Power Plant Siting Board implicitly adopt-
ing the Hearing Officer's denial of appel-
lant's motion to dismiss. We affirm.
The administrative proceedings which led
to the filing of appellant's motion to dis-
miss began on April 8, 1985, when appellee,
South Broward County Resource Recovery
Project, Inc., filed an application with the
Department of Environmental Regulation
for electrical power plant site certification,
pursuant to Chapter 403, Florida Statutes.
Appellant became a party to the certifica-
tion proceedings by filing, on May 10, 1985,
a notice of intent to participate as a party
under section 403.508(4)(b)3. On Novem-
ber 21, 1985, the next to last day of a
certification hearing lasting several days,
Citizens filed a motion to dismiss the appli-
cation on the basis that appellee was not a
proper applicant. The Hearing Officer en-
tered an order denying the motion to dis-
miss on November 21, 1985, and an order
recommending the granting of appellee's
certificate on April 8, 1986. In June 1986,
the siting board entered its final order
adopting the recommended order, with clar-
ifications.
[1, 21 Since we find Citizens' motion to
dismiss to have been untimely filed, we
need not address the merits of the motion.
According to Rule 28- 5.205, F.A.C., mo-
tions in opposition to a petition (including
motions to dismiss) "shall be filed within
20 days of service of the petition." (em-
phasis supplied) The corporation's applica-
tion, which was filed on April 8, 1985,
meets the definition of "petition" found in
Rule 28- 5.201, F.A.C., which includes "any
application or other document which ex-
presses a request for formal proceedings."
The motion to dismiss in this case was filed
more than seven months after the petition
was served. Even assuming the 20-day
deadline to have run from the date appel-
ARVIDA CO
Cite as 502 so.2d 11
lant became a party to the certification
proceedings (May 10, 1985), the motion was
untimely by several months. Appellant's
argument that the motion to dismiss went
to the Board's subject matter jurisdiction
and, therefore, could be filed at any time, is
without merit. The issue raised in the mo-
tion did not involve the Board's authority to
approve or deny certification for electrical
power plants, but instead clearly involved
the propriety of the corporation as an appli-
cant. Further, we note that appellant
failed to identify the corporation's standing
to apply for site certification as an issue in
the joint prehearing stipulation, entered
into on October 31, 1985.
Accordingly, the final order of the siting
board, implicitly approving the Hearing Of-
ficer's denial of appellant's motion to dis-
miss, is hereby affirmed.
RP. v. BARNETT Fla. 11
SMITH and ZEHMER, JJ., concur.
ARVIDA CORPORATION, Appellant,
v.
Scott BARNETT and Sabrina
Barnett, Appellees.
Nos. 85 -2860, 86 -473.
District Court of Appeal of Florida,
Third District.
Nov. 18, 1986.
Rehearing Denied Feb. 25, 1987.
The Circuit Court, Dade County, Leon-
ard Rivkind, J., granted purchasers re-
scission of agreement to purchase home
and ordered refund of their deposits, and
vendor appealed. The District Court of
Appeal, Hendry, J., held that contract for
purchase did not contain unconditional com-
mitment by vendor to complete home with-
in two years, and therefore vendor was not
(Fla.App. 3 Dist. 1986)
exempt from disclosure requirements of In-
terstate Land Sales Full Disclosure Act.
Affirmed.
1. Consumer Protection ez,8
Seller is "obligated" within meaning of
Interstate Land Sales Full Disclosure Act
exemption for sale or -lease of land "under
a contract obligating the seller or lessor to
erect such a building thereon within a peri-
od of two years" only if contract contains
unconditional commitment by seller to com-
plete construction within two years. Inter-
state Land Sales Full Disclosure Act,
§ 1403(a), 15 U.S.C.A. § 1702(a).
2. Consumer Protection €=,8
Vendor was not obligated to finish con-
struction of residence within meaning of
Interstate Land Sales Full Disclosure Act
exemption for sale or lease of land "under
a contract obligating the seller or lessor to
erect such a building thereon within a peri-
od of two years," even if purchase agree-
ment gave purchasers remedy of specific
performance to enforce contract, as remedy
of specific performance was made available
solely in order for vendor to evade disclo-
sure requirements, and purchasers were
barred by agreement from seeking dam-
ages in event of default. Interstate Land
Sales Full Disclosure Act, §§ 1402 -1422,
1403(a)(2), 1404(c), 15 U.S.C.A. §§ 1701-
1720, 1702(a)(2), 1703(c).
Beasley, 011e, Downs & Keihner and
Pamela A. Chamberlin and James W. Beas-
ley, Jr., Robert M. Rhodes, Miami, for ap-
pellant.
Hall, O'Brien & Cohen and Lewis Cohen,
Miami, for appellees.
Before BARKDULL, HENDRY and
JORGENSON, JJ.
HENDRY, Judge.
Arvida Corporation (Arvida), a developer,
appeals the entry of a final summary judg-
ment for plaintiffs /appellees Scott and Sa-
IN THE CIRCUIT COURT OF THE NINETEENTH
JUDICIAL CIRCUIT IN AND FOR OKEECHOBEE
COUNTY, FLORIDA.
CASE NO: 93- 555 -CA
JUDGE: JOHN E. FENNELLY
OKEECHOBEE BEACH WATER ASSOCIATION, INC.,
Plaintiff,
vs.
CITY OF OKEECHOBEE, FLORIDA and
OKEECHOBEE COUNTY, FLORIDA,
Defendants.
/
CITY OF OKEECHOBEE, FLORIDA,
Defendant /Counter- Plaintiff
vs.
OKEECHOBEE BEACH WATER ASSOCIATION, INC.,
Plaintiff /Counter- Defendant.
/
CITY OF OKEECHOBEE, FLORIDA,
Defendant /Cross - Plaintiff,
vs.
OKEECHOBEE COUNTY, FLORIDA,
CLIF BETTS, JR., TOMMY CLOSE,
CHARLES W. HARVEY, SUSAN B. HUGHES,
and STEPHEN PORTER, not individually,
but in their capacities as the
Commissioners of Okeechobee County,
CHRISTOPHER W. CHINAULT, not individually,
but in his capacity as County Administrator
for Okeechobee County.
Defendant /Cross- Defendants.
DEFENDANT'S (OKEECHOBEE COUNTY) ANSWER AND AFFIRMATIVE DEFENSES
TO PLAINTIFF'S (OKEECHOBEE BEACH WATER ASSOCIATION)
AMENDED COMPLAINT
7239 -7033
COME NOW, the Defendant, OKEECHOBEE COUNTY, FLORIDA, by and
through their undersigned attorney and answers the Amended Complaint filed in this cause
and would show as follows:
1. THAT said Defendant would admit paragraph 1 of the Amended Complaint.
2. THAT said Defendant would admit paragraph 2 of the Amended Complaint.
3. THAT said Defendant would admit paragraph 3 of the Amended Complaint.
4. THAT said Defendant would admit paragraph 4 of the Amended Complaint.
5. THAT said Defendant would admit paragraph 5 of the Amended Complaint.
6. THAT said Defendant is without knowledge or information sufficient to form
a belief as to the allegations contained in paragraph 6 of the Amended Complaint.
7. THAT said Defendant is without knowledge or information sufficient to form
a belief as to the allegations contained in paragraph 7 of the Amended Complaint.
8. THAT said Defendant is without knowledge or information sufficient to form
a belief as to the allegations contained in paragraph 8 of the Amended Complaint.
9. THAT said Defendant would admit paragraph 9 of the Amended Complaint.
10. THAT said Defendant would admit to all allegations contained in the first
sentence of paragraph 10, but as to that remaining portion of paragraph 10 of the Amended
Complaint said Defendant is without knowledge or information sufficient to form a belief
as to the allegations contained.
11. THAT said Defendant would deny paragraph 11 of the Amended Complaint.
12. THAT said Defendant is without knowledge or information sufficient to form
a belief as to the allegations contained in paragraph 12 of the Amended Complaint.
13. THAT said Defendant would admit paragraph 13 of the Amended Complaint.
14. THAT said Defendant would admit to all allegations contained in that
portion of paragraph 14 of the Amended Complaint except the last sentence of said
paragraph. As to that portion of paragraph 14, said Defendant is without knowledge or
information sufficient to form a belief as to the allegations contained in this sentence.
15. THAT said Defendant would admit paragraph 15 of the Amended Complaint.
16. THAT said Defendant is without knowledge or information sufficient to form
a belief as to the allegations contained in paragraph 16 of the Amended Complaint.
7239 -7033
17. THAT said Defendant would admit paragraph 17 of the Amended Complaint.
18. THAT said Defendant is without knowledge or information sufficient to form
a belief as to the allegations contained in paragraph 18 of the Amended Complaint.
19. THAT said Defendant would admit paragraph 19 of the Amended
Complaint.
AFFIRMATIVE DEFENSES
As further Answer to the Amended Complaint, the Defendant would alledge the
following Affirmative Defenses:
20. THAT Defendant OKEECHOBEE COUNTY, is nominal party, in that the
outcome of the cause of action will be of indirect impact to said Defendant.
By:
7239 -7033
Law Office of
CASSELS & MCCALL
JOHN D. CASSELS, JR.
County Attorney
Post Office Box 968
Okeechobee, Florida 34973
(813) 467 -6900
Florida Bar Number: 261521
and
MARK G. LAWSON, Esquire
GREG STEWART, Esquire
C/O NABORS, GIBLIN &
NICKERSON, P.A.
Co- Counsel for Defendant /Cross- Defendant
OKEECHOBEE COUNTY, FLORIDA
Barnett Bank Building, Suite 800
315 South Calhoun Street
Tallahassee, Florida 32301
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing instrument on
this day of , 1993, by U.S. Mail Delivery, to all persons on
the attached Service List.
JOHN D. CASSELS, JR.
7239 -7033
CASE NUMBER: 93- 555 -CA
SERVICE LIST
BURTON C. CONNER, Esquire
Attorney for Plaintiff /Counter- Defendant
OKEECHOBEE BEACH WATER ASSOCIATION, INCORPORATED
301 N.W. 5th Street
Okeechobee, Florida 34972
STEVE WALKER, Esquire
C/O MESSER, VICKERS, CAPARELLO, LEWIS, GOLDMAN, & METZ
Co- Counsel for Plaintiff /Counter- Defendant
OKEECHOBEE BEACH WATER ASSOCIATION, INCORPORATED
2000 Palm Beach Lakes Boulevard, Suite 900
West Palm Beach, Florida 33409
JOHN R. COOK, Esquire
Attorney for Defendant / Counter - Plaintiff /Cross - Plaintiff
CITY OF OKEECHOBEE, FLORIDA
202 N.W. 5th Avenue
Okeechobee, Florida 34972
RICHARD A. LOTSPEICH, Esquire
FRED McCORMACK, Esquire
C/O LANDERS & PARSONS
Co- Counsel for Defendant/ Counter - Plaintiff /Cross - Plaintiff
CITY OF OKEECHOBEE, FLORIDA
Post Office Box 271
Tallahassee, Florida 32302
MICHAEL WILLIAM MORELL, Esquire
Co- Counsel for Defendant / Counter- Plaintiff /Cross- Plaintiff
CITY OF OKEECHOBEE, FLORIDA
310 West College Avenue
Room 222
Tallahassee, Florida 32301 -1406
7239 -7033
IN THE CIRCUIT COURT OF THE NINETEENTH
JUDICIAL CIRCUIT IN AND FOR OKEECHOBEE
COUNTY, FLORIDA.
CASE NO: 93- 555 -CA
JUDGE: JOHN E. FENNELLY
OKEECHOBEE BEACH WATER ASSOCIATION, INC.,
Plaintiff,
vs.
CITY OF OKEECHOBEE, FLORIDA and
OKEECHOBEE COUNTY, FLORIDA,
Defendants.
CITY OF OKEECHOBEE, FLORIDA,
Defendant /Counter - Plaintiff
vs.
OKEECHOBEE BEACH WATER ASSOCIATION, INC.,
Plaintiff /Counter- Defendant.
CITY OF OKEECHOBEE, FLORIDA,
Defendant /Cross - Plaintiff,
vs.
OKEECHOBEE COUNTY, FLORIDA,
CLIF BETTS, JR., TOMMY CLOSE,
CHARLES W. HARVEY, SUSAN B. HUGHES,
and STEPHEN PORTER, not individually,
but in their capacities as the
Commissioners of Okeechobee County,
CHRISTOPHER W. CHINAULT, not individually,
but in his capacity as County Administrator
for Okeechobee County.
Defendant /Cross- Defendants.
CROSS DEFENDANTS' MOTION TO DISMISS
CITY OF OKEECHOBEE'S CROSS -CLAIM
7239 -7066
COME NOW, the Cross - Defendants, OKEECHOBEE COUNTY, FLORIDA, CLIF
BETTS, JR., TOMMY CLOSE, CHARLES W. HARVEY, SUSAN B. HUGHES, and STEPHEN
PORTER, not individually, but in their capacities as the commissioners of Okeechobee County,
and CHRISTOPHER W. CHINAULT, not individually, but in his capacity as County
Administrator for Okeechobee County, by and through their undersigned attorney and file this
Motion to Dismiss the City of Okeechobee's Cross -Claim and would show as follows:
1. THAT pursuant to Section 125.15, Florida Statutes, the County Commissioners
"shall sue and be sued in the name of the county ..."
2. THAT Okeechobee County, Florida is the only proper party- Defendant to the
CITY's Cross - Claim. Accordingly, this action should be dismissed as to CLIF BETTS, JR.,
TOMMY CLOSE, CHARLES W. HARVEY, SUSAN B. HUGHES, and STEPHEN
PORTER, and CHRISTOPHER W. CHINAULT.
3. THAT CHRISTOPHER W. CHINAULT, not individually, but in his capacity
as County Administrator for Okeechobee County, should be dismissed as a Defendant as no
well pled statement of ultimate fact alledges his violation of Florida Statutes and no affirmative
relief is sought against said Defendant.
4. THAT Count II of the CITY's Cross -Claim should be dismissed for failure to
state a cause of action as pled. Under the facts as alleged, said Count is insufficient as a
matter of law to state a cause of action for a violation of Section 286.011, Florida Statutes, (the
"Sunshine Law ").
5. THAT Count II of the CITY's Cross -Claim violates Rule 1.110, F.R.C.P., in that
paragraphs 57 and 58 do not contain "a short and plain statement of the ultimate facts showing
that the pleader is entitled to relief," but rather, contain conclusions of law and allegations
based upon the CITY's speculations and beliefs.
WHEREFORE, the Cross - Defendants, OKEECHOBEE COUNTY, FLORIDA, CLIF
BETTS, JR., TOMMY CLOSE, CHARLES W. HARVEY, SUSAN B. HUGHES, and STEPHEN
PORTER, not individually, but in their capacities as the commissioners of Okeechobee County,
and CHRISTOPHER W. CHINAULT, not individually, but in his capacity as County
Administrator for Okeechobee County, pray that this Honorable Court will dismiss this cause,
with costs at the prejudice of the Cross - Claimant, CITY OF OKEECHOBEE, FLORIDA.
7239 -7066
By:
Law Office of
CASSELS & MCCALL
JOHN D. CASSELS, JR.
County Attorney
Post Office Box 968
Okeechobee, Florida 34973
(813) 763 -3131
Fla Bar No: 261521
and
MARK G. LAWSON, Esquire
GREG STEWART, Esquire
C/O NABORS, GIBLIN & NICKERSON, P.A.
Co- Counsel for Defendant /Cross- Defendant
OKEECHOBEE COUNTY, FLORIDA
Barnett Bank Building, Suite 800
315 Calhoun Street
Tallahassee, Florida 32301
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished
on this day of October, 1993, by U.S. Mail Delivery, to all persons on the attached Service
List.
JOHN D. CASSELS, JR.
7239 -7066
CASE NUMBER: 93- 555 -CA
SERVICE LIST
BURTON C. CONNER, Esquire
Attorney for Plaintiff /Counter- Defendant
OKEECHOBEE BEACH WATER ASSOCIATION, INCORPORATED
301 N.W. 5th Street
Okeechobee, Florida 34972
STEVE WALKER, Esquire
C/O MESSER, VICKERS, CAPARELLO, LEWIS, GOLDMAN, & METZ
Co- Counsel for Plaintiff /Counter- Defendant
OKEECHOBEE BEACH WATER ASSOCIATION, INCORPORATED
2000 Palm Beach Lakes Boulevard, Suite 900
West Palm Beach, Florida 33409
JOHN R. COOK, Esquire
Attorney for Defendant /Counter - Plaintiff /Cross - Plaintiff
CITY OF OKEECHOBEE, FLORIDA
202 N.W. 5th Avenue
Okeechobee, Florida 34972
RICHARD A. LOTSPEICH, Esquire
FRED McCORMACK, Esquire
C/O LANDERS & PARSONS
Co- Counsel for Defendant / Counter - Plaintiff /Cross - Plaintiff
CITY OF OKEECHOBEE, FLORIDA
Post Office Box 271
Tallahassee, Florida 32302
MICHAEL WILLIAM MORELL, Esquire
Co- Counsel for Defendant /Counter - Plaintiff /Cross - Plaintiff
CITY OF OKEECHOBEE, FLORIDA
310 West College Avenue
Room 222
Tallahassee, Florida 32301 -1406
7239 -7066
BURTON C. CONNER, P. A.
ATTORNEY AT LAW
John R. Cook, Esq.
202 Northwest Fifth Avenue
Okeechobee, FL 34972
VIA REGULAR MAIL
Re: OBWA vs. CITY et al.
Dear John:
301 NORTHWEST FIFTH STREET
OKEE('HOBEE, FLORIDA 34972
January 17, 1994
TELEPHONE
181 R1 467 -8800
FA( SIYIII,F,
181 :3) 467- 6316
As requested, enclosed please find a supplement to Exhibit C of L.C.'s affidavit, which is
the March 29, 1993 Letter of Conditions referred to in the Farmer's Home notice.
Please advise who is the lead counsel for the City in this action. I do not intend to copy
both of you with lengthy documents that may be filed in this action (such as the motion for
partial summary judgment). Likewise, I do not expect the City to copy lengthy documents
on both myself and Steve Walker on behalf of Beach Water. I am the lead counsel in this
action for Beach Water, and you need only copy me with lengthy documents. I am
agreeable to copying both you and Rick on the smaller documents that are filed.
I received a copy of a motion for a default against Beach Water signed by Rick. My file
reflects that on October 25 I served you and John Cassels with my answer to your
affirmative defenses and counterclaim. Again, I understood that Rick was a co- counsel, but
that you were the lead attorney, so you were sent the copy for the City. Please advise if I
am mistaken.
Since
urton C. Conner
BCC/bcc
cc: John D. Cassels, Jr.
IN THE CIRCUIT COURT FOR OKEECHOBEE COUNTY, FLORIDA
OKEECHOBEE BEACH WA'T'ER
ASSOCIATION, INC., CASE NO: 93 -555 CA
Plaintiff,
vs.
CITY OF OKEECHOBEE, FLORIDA,
Defendant.
SUPPLEMENT TO EXHIBIT C ATTACHED TO
AFFIDAVIT OF L.C. FORTNER IN SUPPORT OF
PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT
Attached hereto as a supplement to Exhibit C of the Affidavit of L. C. Fortner in
support of Plaintiff's Motion For Partial Summary Judgment is a copy of the Letter of
Conditions dated March 29, 1993 referred to in Exhibit C.
The undersigned certifies that a copy of the foregoing was furnished to John R.
Cook, Attorney for Defendant CITY, Richard A. Lotspeich, Co- counsel for Defendant
CITY, John D. Cassels, Attorney for Defendant COUNTY, and Mark G. Lawson, Co-
counsel for Defendant COUNTY, by mail on January 18, 1994.
BURTON C. CONNER, P.A. and
Burton C. Conner
Attorney for Plaintiff
Florida Bar No. 0254551
301 Northwest Fifth Street
Okeechobee, FL 34972
813- 467 -8800
5 \013 \CITY\M -PA R- SM.JMT
Stephen A. Walker
MESSER, VICKERS, CAPARELLO, LEWIS
GOLDMAN & METZ
Co- counsel for Plaintiff
2000 Palm Beach Lakes Boulevard, Suite 900
West Palm Beach, FL 33409
407 - 640 -0820
1
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CITY)OF OKEECHOBEE,
Petitioner,
-vs- DOAH CASE NO. 93- 007151
OGC FILE NO. 93 -4034
OKEECHOBEE BEACH WATER ASSOCIATION, INC.,
Respondents.
NOTICE OF VOLUNTARY WITHDRAWAL
Petitioner, CITY OF OKEECHOBEE, ( "CITY "), by and through its
undersigned counsel, pursuant to Florida Administrative Code Rule
22I- 6.036, hereby withdraws its Petition for Formal Administrative
Hearing and states:
1. On February 15, 1994, the CITY and OKEECHOBEE BEACH WATER
ASSOCIATION, INC. entered into a Settlement Agreement resolving all
disputed issues with regard to the CITY's challenge to the issuance
of Permit Number WC -47- 227728. A copy of the Settlement Agreement
is attached hereto.
2. Pursuant to the terms of the Settlement Agreement, the
CITY has agreed to withdraw its Petition in this proceeding.
WHEREFORE, Petitioner, CITY OF OKEECHOBEE hereby withdraws its
Petition for Formal Administrative Hearing in DOAH Case Number 93-
4034.
1
Respectfully submitted this 76 day of February, 1994.
RICHARD A. LOT ICH, ESQUIRE
Landers & Parsons
P. O. Box 271
Tallahassee, FL 32302
(904) 681 -0311
and
MICHAEL WM. MORELL, ESQUIRE
310 W. College Ave.
Tallahassee, FL 32302
(904) 425 -8300
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that the original and one copy of the
tW
foregoing has been forwarded this /G day of February, 1994 by
hand delivery to the Clerk, Division of Administrative Hearings,
DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida
32399 -1550; and copies via hand delivery to LORI KILLINGER,
ESQUIRE, Office of General Counsel, Florida Department of
Environmental Protection, 2600 Blair Stone Road, Room 654,
Tallahassee, Florida 32399 -2400 (904)- 488 -9730; STEPHEN A. WALKER,
ESQUIRE and ROBERT P. DIFFENDERFER, ESQUIRE, Messer, Vickers,
Caparello, et al., 2000 Palm Beach Lakes Boulevard, Suite 900, West
Palm Beach, Florida 33409 (407)- 640 -0820 (Co- counsel to Respondent
OKEECHOBEE BEACH WATER ASSOCIATION, INC.) and BURTON C. CONNOR,
ESQUIRE, 301 N. W. 5th Street, Okeechobee, Florida 34972 (813) -467-
8800 (Co- counsel to Respondent OKEECHOBEE BEACH WATER ASSOCIATION,
INC.) .
RICHARD A. LOTSPE , ESQUIRE
Florida Bar #593'60
- 2 -
STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL PROTECTION
CITY OF OKEECHOBEE,
Petitioner,
vs.
FLORIDA DEPARTMENT OF ENVIORNMENTAL
PROTECTION and OKEECHOBEE BEACH
WATER ASSOCIATION, INC.,
Respondents,
/
SETTLEMENT AGREEMENT
Case No.: 93-
Permit Application No.
WC 47- 227728
This Settlement Agreement made and entered into by and between the City
of Okeechobee, a political subdivision of the State of Florida (hereinafter referred to as the
"City ") and Okeechobee Beach Water Association, Inc., a Florida not - for - profit corporation
(hereinafter referred to as "OBWA ").
RECITALS
1. On March 12, 1993, OBWA filed an application with the Department of
Environmental Regulation, hereinafter "Department ", (n /k /a Department of Environmental
Protection) for a permit to construct a public potable water treatment facility in Okeechobee
County.
2. On October 1, 1993, the City received notice of the Department's Notice of
Intent to issue Permit No. WC-47- 227728 to OBWA for construction of the public potable
water treatment facility.
3. On October 14, 1993, the City filed an objection to the intent to issue and
requested a formal administrative hearing in order to resolve alleged disputed factual issues.
4. The City has previously challenged the issuance of a water use permit
(SFWMD permit application 921204 -10) to OBWA for the water supply source to supply
the facility permitted by Permit No. WC-47- 227728, which challenge is currently pending in
DOAH Case No. 93 -5505.
5. The parties desire to settle and compromise their differences on the bases set
forth in this agreement.
STATEMENT OF AGREEMENT
NOW, THEREFORE, in accordance with the mutual covenants hereinafter
contained and other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties agree as follows:
1. Recitals. The recitals set forth above are true and correct and hereby
incorporated herein.
2. No Construction. OBWA agrees not to commence construction of the water
treatment plant facilities permitted under Permit No. WC-47- 227728 until it has obtained
from the South Florida Water Management District the water use permit for the withdrawal
of the source water from the supply wells which will supply water to the permitted water
treatment plant.
3. Withdrawal of Petition. The City agrees to file, within two days of the date
of its execution of this agreement, a voluntary dismissal of the City's Petition for a Formal
Administrative Hearing which was filed in response to the Department's Notice of Intent
to Issue Permit No. WC-47- 227728.
4. No Admission. The parties agree that they are entering into this agreement
in order to compromise and settle litigated matters. No party, by entering into or carrying
out the terms and conditions of this agreement, shall be deemed to have admitted any claim
or contention of any opposing party in such litigation.
5. Entire Agreement. This agreement constitutes the entire agreement of the
parties as to the matters set forth herein and there are no representations, promises,
warranties or undertakings of any party with respect to the matter set forth in this
agreement except as stated in writing in this agreement.
6. Counterparts. This agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of them together, respectively, shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have made and executed this agreement on
the date(s) indicated below.
COUNSEL FOR CITY OF
OKEECHOBEE
By:
RICHARD A. LOT ICH, ESQ.
FRED MCCORMACK, ESQ.
Landers & Parsons
P.O. Box 271
Tallahassee, Florida 32302
and
MICHAEL WM. MORELL, ESQ.
COUNSEL FOR OKEECHOBEE
BEACH WATER ASSOCIATION
By:
S 'PHEN A. WALKER, ESQ.
Florida Bar No. 195298
ROBERT P. DIFFENDERFER, ESQ.
Florida Bar No. 434906
Messer, Vickers, Caparello, Madsen,
Lewis, Goldman & Metz, P.A.
2000 Palm Beach Lakes Boulevard
West Palm Beach, Florida 33409
To
a. Office of
JOHN R COOK
202 ,w 5th Ave.
OKE_ ` OBEE_, 71 349.
Sl f ) $t7.-7 "B ,9 ^. p • }? ,.x 1 7 , 479)7.
FOLLOW -UP DATE
19
Date
Subject
LAW OFFICES
JOHN R. COOK
202 NW 5TH AVENUE
OKEECHOBEE, FLORIDA 34972
TELEPHONE (813) 467 -0297
FAX (813) 467 -4798
Attn. Lola Re: OBWA vs City
1/4/94 letter to Rick .2
1/4/94 call form Draco .3
1/5/94 call to Rick /Mike .5
1/10/94 call to Rick .4
1/11/94 call form Rick .3
1/11/94 call from Mike .2
1/12/94 call from Mike .5
1/12/94 conf. /Draco .5
1/12/94 call to Rick .2
1/13/94 review ct. file .4
1/13/94 letter to Burton .2
1/19/94 call from Mike .8
1/19/94 call to Rick(3) .6
1/20/94 call to Mike (2) .5
1/24/94 call from Rick .3
1/25/04 call from rick .5
1/25/94 call to Cassels .2
1/25/94 call to Burton .2
1/25/94 call to Monica .2
1/26/94 review draft 1.6
OBWA agreement /w /letters
1/26/94 C7all to Mike .5
1/26/94 meet w /Monica .3
1/26/94 call to Burton(2) .4
1/26/94 call to Draco .2
1/27/94 attend BOCC .8
1/27/94 meet w /Draco .5
1/29/94 call from Mike .4
1/31/94 call from Mike .2
2/1/94 call from Rick(2) .4
2/1794 review pleadings .4
file in court
2/1/94 call to Burton .2
2/10/94 conf. /Burton re:abate .5
2/14/94 calls :Draco,Rick,Burton.6
2/15/94 call to John .2
14.20 hrs. @ 75.00 = $1065.00
IN THE CIRCUIT COURT IN AND FOR OKEECHOBEE COUNTY, FLORIDA
CASE NO:93- 555 -CA
OKEECHOBEE BEACH WA I'ER ASSOCIATION, INC.,
Plaintiff
vs.
CITY OF OKEECHOBEE, FLORIDA,
Defendant.
NOTICE OF HEARING
TO: CITY OF OKEECHOBEE
c/o John R. Cook, Esq.
202 NW 5th Avenue
Okeechobee, Florida 34972
COUNTY OF OKEECHOBEE
c/o John D. Cassels, Jr. Esq.
400 NW 2nd Street
Okeechobee, Florida 34972
PLEASE TAKE NOTICE that 4April 28, 1994, at 9:00 a.m. Or as soon thereafter
as counsel may be heard, the undersigned will-call up to be heard before the Honorable
William L. Hendry, a judge of the above Court, at the Okeechobee County Courthouse,
Okeechobee, Florida, the following:
MOTION FOR PARTIAL SUMMARY JUDGEMENT and
MOTION TO APPOINT MEDIATOR
TIME RESERVED: 1 and 1/2 hours
PLEASE GOVERN YOURSELF ACCORDINGLY.
I HEREBY CERTIFY that a true copy of the foregoing was served on the above -
named person(s) by U.S. Mail this iI a day of . .
X994.
2 \ob \city \noticc.hcr 1
BURTON f. CONNER, P.A.
urton C. Conner
Fla. Bar No. 0254551
301 Northwest Fifth Street
Okeechobee, Florida 34972
(813)467 -8800
IN THE CIRCUIT COURT FOR OKEECHOBEE COUNTY, FLORIDA
OKEECHOBEE BEACH WATER
ASSOCIATION, INC., CASE NO: 93 -555 CA
Plaintiff,
VS.
CITY OF OKEECHOBEE, FLORIDA,
Defendant.
SECOND AMENDED NOTICE OF HEARING
TO: CITY OF OKEECHOBEE
c/o John R. Cook, Esq.
202 Northwest 5th Ave.
Okeechobee, FL 34972
COUNTY OF OKEECHOBEE
c/o John D. Cassels, Jr., Esq.
400 Northwest 2nd St.
Okeechobee, FL 34972
PLEASE TAKE NOTICE that on July 15, 1994, at 3:30 p.m. or as soon thereafter
as counsel may be heard, the undersigned will call up to be heard before the Honorable
William L. Hendry, a judge of the above Court, at the Okeechobee County Courthouse,
Okeechobee, Florida, the following:
MOTION FOR PARTIAL SUMMARY JUDGEMENT.
TIME RESERVED: 1.5 hours
PLEASE GOVERN YOURSELF ACCORDINGLY.
I HEREBY CERTIFY that a true copy of the foregoing was served on the above -
named person(s) by mail on April 26, 1994.
cc: Okeechobee Court Reporters
Judge William L. Hendry
Stephen A. Walker, Esq.
1\ob\city\n-hcar-3.psj
BURTON C. CONNER
BURTON C. CONNER, P.A.
Florida Bar No. 0254551
301 Northwest Fifth Street
Okeechobee, Florida 34972
813- 467 -8800
Richard Lotspeich, Esq.
Mark Lawson, Esq.
Michael Wm. Morell, Esq.
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CITY OF OKEECHOBEE,
Petitioner,
vs.
DOAH CASE NO.: 93 -5505
SOUTH FLORIDA WATER MANAGEMENT
DISTRICT and OKEECHOBEE BEACH
WATER ASSOCIATION, INC.,
Respondents.
REQUEST FOR LEAVE TO AMEND PETITION
FOR FORMAL ADMINISTRATIVE HEARING
Petitioner, City of Okeechobee ( "City "), through its
undersigned counsel, hereby requests leave to amend its original
Petition for Formal Administrative Hearing pursuant to Rule 60Q-
2.004(4). The City requests leave to add the following paragraphs
to the Petition:
1. The action by the South Florida Water Management District
( "District ") in proposing to issue the subject water use permit to
the Okeechobee Beach Water Company, Inc. ( "OBWA ") under Section
373.223, Florida Statutes, is a licensing proceeding authorized by
law for the protection of water resources from impairment or
destruction.
2. The issuance of the subject permit to OBWA will allow OBWA
to provide drinking water service to homes and businesses in areas
of Okeechobee County along the north shore of Lake Okeechobee not
currently being served. Providing drinking water to these areas
will result in increased growth and development of these areas.
However, unlike the City, OBWA does not have the ability to provide
corresponding wastewater collection,
service to the homes and businesses.
central wastewater service to these
treatment, and disposal
Since there will be no
areas, there will be a
proliferation of septic tanks in these same areas. This
proliferation of septic tanks will result in increased nutrient
loading to groundwaters and to Lake Okeechobee and its tributaries.
This nutrient loading will result in the impairment and pollution
of waters of the state.
3. Attached is a verified pleading asserting that the
issuance of the permit to OBWA will have the effect of impairing,
polluting or otherwise injuring the water resources of the state.
4. Accordingly, pursuant to Section 403.412(5), Florida
Statutes, the City as a municipality of the State, has standing to
participate as a petitioner in this proceeding.
st
Respectfully submitted this &J day of October 1993.
Richard A. Lotspe '
Fred McCormack
LANDERS & PARSONS
P. 0. Box 271
Tallahassee, FL 32302
(904) 681 -0311
and
Michael Wm. Morell
310 W. College Ave.
Tallahassee, FL 32302
(904) 425 -8300
Counsel for City of Okeechobee
2
AFFIDAVIT
STATE OF FLORIDA
COUNTY OF OKEECHOBEE
BEFORE ME, the undersigned author y, this day personally
appeared JAMES E. KIRK, who is personally known to me, or who has
produced as identification; and who being
by me first duly sworn, under oath says:
I JAMES E. KIRK, Mayor of the City of Okeechobee, after being
first duly sworn, state that the issuance of Water Use Permit no.
921204 -10 by the South Florida Water Management District to the
Okeechobee Beach Water Association, Inc. will have the effect of
impairing, polluting, or otherwise injuring the water resources of
the State of Florida as set forth in the preceding request for
Leave to Amend Petition for Formal Administrative Hearing.
1993. .
JAMES E. KIRK
Affiant
SWORN TO AND SUBSCRIBED before me this ICJ day of October,
NOTARY PUBLIC State of Florida
My Commission Expires:
Printed notary name
.Os R. taut
STATi OF FLO1ORA
OMM rYrwFr ''f PT 24, 1994
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that the original and one copy of the
foregoing Request for Leave to Amend Petition for Formal
Administrative Hearing has been forwarded by hand delivery to the
Clerk, Division of Administrative Hearings, DeSoto Building, 1230
Apalachee Parkway, Tallahassee, FL 32399; and by U. S. Mail to
Cecile I. Ross, Esq., South Florida Water Management District, P.
O. Box 24680, West Palm Beach, FL 33416 -4680; and Stephen A.
Walker, Esq., Messer, Vickers, Caparello, et al., 2000 Palm Beach
Lakes Boulevard, Suite 900, West Palm Beach, FL 33409 and Burton
C. Conner, Esq., 301 N. W. 5th Street, Okeechobee, FL 34972 this
2/ day of October, 1993.
Richard A. Lotsp
3
IN THE CIRCUIT COURT OF THE
NINETEENTH JUDICIAL CIRCUIT
IN AND FOR OKEECHOBEE COUNTY,
FLORIDA
CIVIL DIVISION
OKEECHOBEE BEACH WATER
ASSOCIATION, INC.,
Plaintiff,
vs.
Case No. 93- 555 -CA
CITY OF OKEECHOBEE, FLORIDA,
and OKEECHOBEE COUNTY, FLORIDA
Defendants.
CITY OF OKEECHOBEE, FLORIDA
Defendant,
vs.
OKEECHOBEE BEACH WATER
ASSOCIATION, INC.,
Plaintiff.
CITY OF OKEECHOBEE, FLORIDA,
Defendant and
Cross - Plaintiff,
vs.
OKEECHOBEE COUNTY, FLORIDA,
CLIFF BETTS, Jr., TOMMY CLOSE,
CHARLES W. HARVEY, SUSAN B.
HUGHES, and STEPHEN PORTER,
not individually, but in
their capacities as the
commissioners of Okeechobee
County, CHRISTOPHER W. CHINAULT,
not individually, but in his
capacity as County Administrator
for Okeechobee County.
Defendant and
Cross - Defendants,
DEFENDANT CITY OF OKEECHOBEE'S
FIRST INTERROGATORIES TO PLAINTIFF
OKEECHOBEE BEACH WATER ASSOCIATION, INC.
TO: Burton C. Conner
Burton C. Conner, P.A.
301 Northwest 5th Ave.
Okeechobee, FL 34972
Defendant, City of Okeechobee ( "City "), hereby propounds the
following Interrogatories upon Plaintiff, Okeechobee Beach Water
Association, Inc. (OBWA). The completed interrogatories are to be
returned to Defendant's counsel within thirty (30) days after
service.
INSTRUCTIONS
As used in these interrogatories, the terms "identify" and
"identification," when used in reference to data or documents,
means the date, the author or compiler, the type of document or
record including the computer or electronically stored information,
and any other means of identifying with sufficient particularity to
meet the requirements for its inclusion in a Request for Production
of Documents pursuant to Rule 1.350, Florida Rules of Civil
Procedure. If any such document was in Plaintiff's, or in its
agents' or employees' possession or subject to its control, but no
longer is, please state what disposition was made of it and the
reason for that disposition. If any document or data is in any
other person or party's control, please state the loca -tion and
control of the document as known to Plaintiff's, their agents or
employees. In lieu of identifying any document, a complete copy
may be attached to the answers to these interrogatories.
In order to simplify the issues and resolve as many matters of
fact as possible, Defendant further requests that, if any of these
interrogatories or portions of them cannot be answered fully, they
be answered to the extent possible, with reasons for not answering
more fully.
Defendant requests Plaintiff to answer in writing, under oath,
the following interrogatories, as provided by Florida Rules of
Civil Procedure 1.280 and 1.340. Defendant further requests
Plaintiff to supplement the answers to these interrogatories to
reflect additional information, including expert witnesses and
witness lists, subsequent to the date of service upon Defendant so
that any supplemental answers will be received by Defendant no
later than thirty (30) days prior to the date of final hearing in
this proceeding.
I N T E R R O G A T O R I E S
1. Please identify the person answering these interrogatories.
3
2. Please state whether the answers to each of these interrogato-
ries include not only the information which is known to you,
but also that which is known to your attorney, to any agent or
officer or any representative of you and list the names and
addresses of individuals who have information or knowledge
regarding the subject matter of these interrogatories or this
proceeding.
4
3. Please state the name, address, and official title of all
persons who prepared or assisted in the preparation of the
answers to these interrogatories and state which of the
answers each person assisted in preparing.
4. With reference to paragraph 2 of the Motion for Partial
Summary Judgment, please state the number of "active service
agreements" that were entered into by OBWA members between
August 3, 1993 and November 1, 1993.
5. Please list all "existing OBWA members" who entered into
active service agreements between August 3, 1993 and November
1, 1993.
6. Please state the number of "existing OBWA members" who have
entered into service agreements but to whom water is not
actually provided to their property.
6
7. Please list the "existing OBWA members" who have entered into
service agreements but to whom water is not actually provided
to their property.
8. Please list the "existing OBWA members" who have had water
meters installed at their property but who do not actually
consume water through the meter for use on the property.
7
9. Please explain the terms of OBWA's standard service agreement.
10. Please explain the purpose of choosing November 1, 1993 as the
date for determining OBWA's "existing members."
8
11. Please explain the status of the financing through the Farmers
Home Administration ( "FmHA ") for the construction and opera-
tion of the water wells and water treatment facility which are
proposed to be built to provide water to OBWA's existing
members.
12. Please explain the extent to which OBWA has complied with the
terms of the Letter of Conditions dated March 29, 1993 from
Gregory L. Caruthers, District Director V, U.S. Department of
Agriculture, Farmers Home Administration to Leland Pearce.
9
13. Please explain the extent to which OBWA has reported to FmHA
"any changes in project cost, source of funds, scope of
services or any other significant changes in the project" as
required by the Letter of Conditions dated March 29, 1993.
14. Please state the extent to which FmHA has approved "any
changes in project cost, source of funds, scope of services or
any other significant changes in the project."
10
15. Please state whether OBWA has received from the FmHA Form
1940 -1 "Request for Obligation of Funds."
16. Please state whether OBWA has completed and returned to the
FmHA Form 1942 -46 "Letter of Intent to Meet Conditions."
11
17. Please state whether the FmHA has discontinued the processing
of OBWA's application.
18. Pursuant to the provisions of paragraph 21 of the Motion for
Partial Summary Judgment, OBWA has 2,043 water meters in-
stalled and issued to its members. The terms of the Letter of
Conditions require OBWA prior to closing the FmHA loan to
"furnish evidence that 3,029 residential water users and 177
commercial users are or have agreed to pay monthly charges"
for water service from the facility being financed. Please
explain how OBWA intends to comply with this condition of the
Letter of Conditions.
12
19. Please state whether OBWA has obtained a franchise agreement
from Glades County defining the area to be served and to be
served at a future date.
20. Please state whether OBWA's attorney has provided to the FmHA
an opinion that the OBWA "has the authority to carry out the
planned method of construction, operation and maintenance and
repayment in connection with the proposed facility," as
required by the Letter of Conditions.
13
21. Please explain the status of any interim financing for the
construction of the proposed facilities to be financed through
the FmHA.
22. Please state whether FmHA has issued a commitment letter to a
lender for interim financing of the construction of the pro-
posed facilities.
14
STATE OF FLORIDA )
) SS:
COUNTY OF
The foregoing instrument was acknowledged before me this
day of 1992, by
who is personally known to me or who has produced
as identification and who did /did not take an
oath.
15
(Type or Print Name)
NOTARY PUBLIC, State of
Florida at Large
My Commission Expires:
IN THE CIRCUIT COURT IN AND FOR OKEECHOBEE COUNTY, FLORIDA
OKEECHOBEE BEACH WA I "ER
ASSOCIATION, INC.,
Plaintiff
VS.
CITY OF OKEECHOBEE, FLORIDA,
Defendant.
CASE NO: 93 -555 CA
NOTICE OF HEARING
TO: John R. Cook, Attorney for Defendant CITY and John D. Cassels, Attorney for
Defendant COUNTY
PLEASE TAKE NOTICE that on February 1, 1994, at 11:00 a.m. or as soon thereafter as
counsel may be heard, the undersigned will call up to be heard before the Honorable William L.
Hendry, a judge of the above Court, at the Okeechobee County Courthouse, Okeechobee, Florida,
the following:
MOTION FOR APPOINTMENT OF MEDIATOR.
TIME RESERVED: 15 MINUTES
PLEASE GOVERN YOURSELF ACCORDINGLY.
I HEREBY CERTIFY that a true copy of the foregoing was served on the above -named
person(s) by U.S. Mail this ■.3.R., day of January, 1994.
BUR 'ON �J CONNER, P.A.
Burton C. Conner
Fla. Bar No. 0254551
301 Northwest Fifth Street
Okeechobee, Florida 34972
(813)467 -8800
cc: John R. Cook, Esq.
Richard A. Lotspeich, Esq.
Michael Morrel, Esq.
John D. Cassels, Esq.
Mark G. Lawson, Esq.
Stephen A. Walker, Esq.
L.C. Fortner
IN THE CIRCUIT COURT FOR OKEECHOBEE COUNTY, FLORIDA
OKEECHOBEE BEACH WATER
ASSOCIATION, INC., CASE NO: 93 -555 CA
Plaintiff,
vs.
CITY OF OKEECHOBEE, FLORIDA,
Defendant.
MOTION FOR APPOINTMENT OF MEDIATOR
Plaintiff moves the Court to appoint a mediator for this case and says:
1. The past discussions and negotiations between the parties have established a
pattern that the parties can agree on very little. Plaintiff truly believes that the parties will
never agree on who the Court should appoint as a mediator.
2. All of the parties have expressed a desire to settle their differences without
extensive litigation. Early mediation in this case would benefit all of the parties.
Wherefore, Plaintiff requests an order appointing a mediator and directing the
parties to make appropriate arrangements for a mediation conference.
The undersigned certifies that a copy of the foregoing was furnished to John R.
Cook, Attorney for Defendant CITY, Richard A. Lotspeich, Co- counsel for Defendant
CITY, Michael Morrel, Co- counsel for Defendant CITY, John D. Cassels, Attorney for
Defendant COUNTY, and Mark G. Lawson, Co- counsel for Defendant COUNTY, by mail
on January /3 , 1994.
BURTON C. CONNER, P.A. and
urton C. Conner
Attorney for Plaintiff
Florida Bar No. 0254551
301 Northwest Fifth Street
Okeechobee, FL 34972
813 - 467 -8800
Stephen A. Walker
MESSER, VICKERS, CAPARELLO, LEWIS
GOLDMAN & METZ
Co- counsel for Plaintiff
2000 Palm Beach Lakes Boulevard, Suite 900
West Palm Beach, FL 33409
407 -640 -0820
5\013 \CITY\M- APPMT.MED 1
ADMINISTRATIVE AND GOVERNMENTAL LAW
ENVIRONMENTAL AND LAND USE LAW
Via Overnight Courier
Mr. John R. Cook
City Attorney
202 N.W. 5th Avenue
Okeechobee, FL 34972
MICHAEL WM. MORELL
ATTORNEY AT LAW
310 WEST COLLEGE AVENUE
TALLAHASSEE, FLORIDA 32301-1406
(904) 425- 8300
(904) 425 -8301 FACSIMILE
January 28, 1994
Attorney Work Product
Privileged & Confidential
ALSO ADMITTED IN THE
DISTRICT OF COLUMBIA
Re: OBWA v. City of Okeechobee, Florida and Okeechobee County, Florida, Case
No. 93- 555 -CA
Dear John:
Enclosed for filing and service in the above - referenced case on Monday, January 31, 1994
are the originals of the following two pleadings:
(1) Notice of Voluntary Dismissal; and
(2) City of Okeechobee's Reply to Okeechobee Beach Water Association
Inc.'s Affirmative Defenses
I have not received a copy of the tape from Okeechobee County from which the minutes
of the Board of County Commissioners February 11, 1993 were produced. I assume that you will
have obtained the tape, listened to it, and verified the delegation from the Commission to the staff,
prior to filing the notice of voluntary dismissal of the Sunshine Count against the County and the
named individuals.
Please call if I may be of any further assistance.
Sincerely,
Michael Wm. Morell
MWM: mm
cc.: Rick Lotspeich, Landers & Parsons
77.77F'77T 377177" ::ZOUSS SETTL1LN7 7:7.7,7; • 7,27'
01{777C0E717/C07777 7777777.777
ch Nater
coeae ..„...007viin a .ton-.717.......-ht
eet: 1i rv'.ce foe t}te
TN7 777ERET1",7 the partiez
eth-1,neved in a eff7' fol the,7..,e services
tor- 311 ' • A:
7= V777,E7,:
, . . ' . . •
NO THERF7(7)77 '
a-nd
jdanning
te tho 017,eechchee .31:oa;
_ .1
ageed. by the pc.:::-tt,7,1s thE. head
dUring perio as deLinocl ro ne,ay lege:
,d.icovry and IL any. ITiotions to tol.J. a
and to ons•end any en...1
for the purpose of providing new watol... eerei
the are,- nIndel • e . . • . . , . . . . . . . . e .
suspended inclde, hut
fun7ding, and
this suspension of activity is the City's well watel: tLeatl-net
under eontr,atmen, iirriuding such. IbEt.....1dr...-..e.tuo.
line is tn this systeo,t oh line with tbe
existing etny ongoing project
WI'' n the 0±toy for ,wnirh esicn or conztit:nt.in,....
J7 7HE PTEZ spocifie7'ey
-
in adr:rnn
do hereby
oking grceup ta onitee,
fa!: Lhe :"= t": ' '
me,7--tina3
thel en:t
r
4 1. 4 F'1 i��� A F k� L
! 1. �� .; 1-:r r �
OKEECHOBEE BEACH WATER
ASSOCIATION, INC.,
Plaintiff,
vs.
CITY OF OKEECHOBEE, FLORIDA,
and OKEECHOBEE COUNTY, FLORIDA
Defendants.
/
CITY OF OKEECHOBEE, FLORIDA
Defendant,
vs.
OKEECHOBEE BEACH WATER
ASSOCIATION, INC.,
Plaintiff.
CITY OF OKEECHOBEE, FLORIDA,
Defendant and
Cross- Plaintiff,
vs.
OKEECHOBEE COUNTY, FLORIDA,
CLIFF' BETTS, Jr., TOMMY CLOSE,
CHARLES W. HARVEY, SUSAN B.
HUGHES, and STEPHEN PORTER,
not individually, but in
their capacities as the
commisuioncro of Okeechobee
County, CHRISTOPHER W. CHINAULT,
not individually, but in his
capacity as County Administrator
for Okeechobee County.
Defendant and
Cross - Defendants,
n
� 01 3674
F 02/005
IN THE CIRCUIT COURT OF THE
NINETEENTH JUDICIAL CIRCUIT •
IN AND FOR OKEECIOBEE COUNTY,
FLORIDA
CIVIL DIVISION
Case No. 93- 555 -CA
I- S -94 01:41PM FROM L ,HEP.S I: PARSONS i0 181316747':1_
=003%005
AFFIDAVIT OF WILLIAM REESE IN SUPPORT
OF DEFENDANT'S MOTION FOR CONTINUANCE `A
62e4,- 4.A
STATE OF FLORIDA:
COUNTY OF OKEECHOBEE:
BEFORE ME this day personally appeared, WILLIAM REESE
(Affiant), who being duly sworn, deposes and says as follows:
1. Affiant is over 18 years of age and is competent to
affirm statements.
2. Affiant has personal knowledge of the facts stated
herein.
3. Affiant is and has been employed by and
as such is the engineer for the City of Okeechobee
responsible for the planning and design of the City's
water treatment system.
4. As the engineer for the City, Affiant is familiar with
the areas within and adjacent to the City that are served
by the city's water system. Affiant is also familiar
with some of the properties which have been purported by
the Okeechobee Beach Water
be served by its system.
5. Affiant has learned from
Association, Inc. ("OBWA ") to
the Superintendent of O]3WA
that at least three of the properties listed by OBWA as
"existing members" are, in fact, not receiving water from
OBWA for either residential, commercial or any other type
of use at the property.
6. Specifically, one of the properties listed as an existing
member is the Coker Tract located in Sections 27 and 34,
Township 37S, Range 35E. This tract of over 800( ?) acres
is served by one inch line with a single meter that
runs water into a horse watering trough. Such a line
would be inadequate to provide water service to any
residential or commercial use at this property.
7. A second property is the Roland Trust Parcel. This
parcel consists of over — acres of land with a single
mobile home on it which is served by a inch water
line installed by OBWA. Such a water line would be
inadequate to provide water service for any other
residential or commercial uses for this property.
8. A third property is the Oasis Village mobile home park.
This property has a master meter in place which was
installed by OBWA; however, Oasis Village does not
consume water through this meter. Instead, Oasis Village
receives its water from its own well and package water
treatment system.
9. These properties represent only three of the 2,043 meters
represented by OBWA to have been installed for its
existing members as of November 1, 1993. These three
examples raise the distinct possibility that Uiere are
other properties which, while they may have meters and
active service agreements with O3WA, do not, in fact,
receive water service from OBWA. Additional investi-
gation is required to determine whether there are other
instances where "existing OBWA members" do not receive
_ 1 111171 111 L ;1', �.
water service from OBWA.
FURTHER AFFIANT SAYETH NOT.
William Reese
SWORN TO and SUBSCRIBED before me this day of Tanuary,
1994, by WILLIAM REESE, who produced a Florida Drivers License as
identification and did not take an oath.
NOTARY PU2LIC, State of Florida
My commission expires:
LAW OFFICES
JOHN R. COOK
202 NW 5T14 AVENUE
OKEECHOBEE, FLORIDA 34972
TELEPHONE (813) 467-0297
FAX (813) 467-4798
TO:
FAX REQUEST
FROM: JOHN R. COOK ATTORNEY AT LAW
OUR FAX NUMBER: (813) 467-4798
NUMBER OF DOCUMENTS TO FOLLOW:
SHOULD YOU HAVE ANY QUESTIONS, PLEASE CONTACT THE UNDERSIGNED.
SENDER:
4
A)(,-;v1
d? ii\(,f bk)
r--
/ OKE E-
,,0F '.
,A .0 % I R• p �
CltyofOkeechobee - �
s
65 S.E. Third Avenue • Okeechobee, Florida 34974 - 2932 .813 /763 -3372
January 26, 1994
John Cassels
County Attorney
400 N.W. 2nd St.
Okeechobee, F1.
Furton Conner
C'WA
701 N.W. 5th St.
;eechobee, F1.
Modica Clark
Buiness Cuunci 1
30i N. Parrot
_echobee, F1.
Greetings:
Attached please !=ind
abate this action for the agreement between + }
sixty gays, which I understand ?must be signed
by all parties repr=_sentai ves by Friday,
order to cancel the hearing set for Februaryu�ilua y 27, 199:x' in
I believe this dueu:nel 'L is designed to reflet
efforts by all parties to a. '.tempt to s the sincere s
not drafted by the re e settle this isues, and was
imagine, would prefer o ct pick ve attorneys. Each a +.:i.oiney, ,ou'd
and try to figure ou`. ;ghat nefarious apart,
schemead the °til:n the tc ,
depending where �he ot:,
p on a particular comma r is have t,`,
a couple of wording changes, is located, etc. I have ;;,arl; further would be suspended during at�ieninterim, with the goal utility T
any advantage, or alter the , g����'� to not gain
I arrived at this not by consulting fouts de drafter of the counsel, but by talking to the City engineer, Bill Reese. He states there are several
projects for which the contracts have already been awarded, that we
are not able to halt at this time. I do not have a list of those,
but can easily obtain it if you desire. The other changes are
designed to give greater clarity, and should not be objectionable.
Please review and get with me no later than 3:00
for your input, as I would like this to go before the BO CC day on
Thursday. I have authority from the Council for the Mayor to
execute the document without further meeting.
Kindest Regard
John R. 00
City Attorney
JRC /jc
IN THE CIRCUIT COURT OF THE
NINETEENTH JUDICIAL CIRCUIT
IN AND FOR OKEECHOBEE COUNTY,
FLORIDA
CIVIL DIVISION
OKEECHOBEE BEACH WATER
ASSOCIATION, INC.,
Plaintiff,
VS.
Case No. 93- 555 -CA
CITY OF OKEECHOBEE, FLORIDA,
and OKEECHOBEE COUNTY, FLORIDA
Defendants.
CITY OF OKEECHOBEE, FLORIDA
Defendant,
vs.
OKEECHOBEE BEACH WATER
ASSOCIATION, INC.,
Plaintiff.
CITY OF OKEECHOBEE, FLORIDA,
Defendant and
Cross - Plaintiff,
vs.
OKEECHOBEE COUNTY, FLORIDA,
CLIFF BETTS, Jr., TOMMY CLOSE,
CHARLES W. HARVEY, SUSAN B.
HUGHES, and STEPHEN PORTER,
not individually, but in
their capacities as the
commissioners of Okeechobee
County, CHRISTOPHER W. CHINAULT,
not individually, but in his
capacity as County Administrator
for Okeechobee County.
Defendant and
Cross- Defendants,
MOTION FOR CONTINUANCE
Defendant, CITY OF OKEECHOBEE, through its undersigned counsel
hereby requests a continuance of the hearing which has been
scheduled to hear Plaintiff OKEECHOBEE BEACH WATER ASSOCIATION,
INC.'S (OBWA) Motion for Partial Summary Judgment and in support
thereof states:
1. A hearing has been scheduled for 11:00 a.m. on February
1, 1994 to hear the Motion for Partial Summary Judgment
filed by Okeechobee Beach Water Association, Inc.
2. In its Motion for Partial Summary Judgment, OBWA raises
certain factual issues which the City has insufficient
information to admit or deny. The Motion and Affidavits
attached thereto also raise new issues related to OBWA's
ability to provide water service to existing and future
water users.
3. On January 25, 1994, the City served upon OBWA the City's
First Request for Production of Documents and the City's
First Interrogatories.
4. The granting of a motion for partial summary judgment
requires the absence of any disputed issues of material
fact as to the relevant issues in that motion. However,
as stated above, the Motion for Partial Summary Judgment
filed by OBWA raises certain factual issues which may in
fact be disputed pending OBWA's response to the Request
for Production of Documents and the Interrogatories.
WHEREFORE, the City of Okeechobee moves that the hearing
scheduled for February 1, 1994 on Okeechobee Beach Water Associa-
tion's Motion for Partial Summary Judgment be continued until at
least 30 days after OBWA has responded to the City's Request for
Production of Documents and the City's First Interrogatories to
OBWA.
Respectfully submitted this day of January, 1994.
John R. Cook, City Attorney
FBN 262951
202 N.W. 5th Avenue
Okeechobee, FL 34972
(813) 467 -0297
Richard A. Lotspeich
LANDERS & PARSONS
P. 0. Box 271
Tallahassee, FL 32302
(904) 681 -0311
and
Michael Wm. Morell
FBN 570280
310 West College Avenue,
Room 222
Tallahassee, FL 32301 -1406
(904) 425 -8300
Attorneys for City of
Okeechobee
3
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing Motion for
Continuance has been forwarded this day of January, 1994 by
hand delivery to: Burton C. Conner, Esq., 301 Northwest 5th
Street, Okeechobee, FL 34972; and John D. Cassels, Jr., Esq.,
Attorney for Okeechobee County, 400 N. W. Second St., P. O. Box
968, Okeechobee, FL 34973 -0968 and via U. S. Mail to Steve
Walker, Esq., and Bob Diffenderfer, Esq., Messer, Vickers,
Caparello, et al., 2000 Palm Beach Lakes Blvd., Suite 900, West
Palm Beach, FL 33409.
John R. Cook
4
12/30/93
SUGGESTED AGREEMENT WORDING: CITY, COUNTY, BEACH WATER.
WHEREAS, the City of Okeechobee, the County of Okeechobee and
Okeechobee Beach Water Association, Inc., (the Parties)
recognize the great public interest in providing a
comprehensive water and sewer utility service for the entire
area,
AND WHEREAS, the Parties recognize the great benefits to be
achieved in a unified effort to plan together for these
services for all of the citizens of the area,
AND WHEREAS, to avoid further disagreement and litigation,
all the parties wish to enter into settlement and planning
discussions in good faith, and to seek consensus on the best
alternatives for the delivery of water and sewer services to
the Okeechobee area;
NOW THEREFORE, believing that their interests in this case
may benefit from mediated settlement discussions, it is
hereby stipulated and agreed by and between the Parties,
through their respective counsel, during the period as
defined herein, to stay any legal action and discovery and to
join in any necessary motions to toll any trial or hearing,
and to suspend any and all unilateral activities which are
for the purpose of providing new water and sewer utility
service in the area (see addendum). Such activities to be
suspended include, but are not limited to, planning,
permitting, funding, and acquisition activity or construction
(except for the City's water treatment facility construction
now in progress).
ALL OF THE PARTIES to this agreement specifically recognize
and agree that all statements, discussions and
communications, whether written or oral, made pursuant to
this discussion process, are deemed to be settlement
negotiations and as such are not admissible as evidence in
any lawsuit or administrative hearing or proceeding.
THE PARTIES do hereby authorize and create a utilities
mediation working group to explore, on their behalf, all
relevant information and alternatives with the intent to
establish the most cost efficient and equitable means for
providing area wide utility service for the entire community,
and to report their findings to the Parties respective boards
at least as often as their regular meetings or as requested
by the respective boards.
THE PARTIES agree that the membership of the working group
will be five members, and that within ten days they will
appoint their respective members as follows:
The Okeechobee City Council -- one council member and one
citizen of their choosing
The Okeechobee County Commissioners -- one commissioner
and one citizen of their choosing.
Okeechobee Beach Water Association -- one citizen of
their choosing.
RECOGNIZING the need for specialized professional assistance,
the Parties instruct the working group to engage assistance
in this effort, and to prepare and present for approval a
schedule of any funding needs prior to any expenditures being
made.
THE PARTIES AGREE that the City must have assurance from the
Florida Department of Environmental Protection that any
delays caused by this effort will not jeopardize their good
standing with that agency, and agree and accept that, though
this assurance must be acquired, it will not delay the
formation and proceeding of the working group.
THE PARTIES AGREE that Okeechobee Beach Water must have
assurance from the City that, as a result of their
participation in this agreement, their supply of potable
water for their customers will not be jeopardized and that
the City hereby renews their previous offer to supply water.
(See addendum)
AND LASTLY, THE PARTIES AGREE to abide by the terms of this
agreement for a period of ninety days, and to use their best
faith and efforts to reach agreement together on the most
beneficial plan for supplying water and sewer services to the
people of the area.
SIGNATURES:
Addendum: The City and Beach Water agree that during the
term of this mediation no allocation of water for users in
the disputed service areas will be made without mutual
agreement between them. The City agrees that any requests
for new water allocations within Beach Water's "ued (t ckE
service area will be considered and granted with the same
priority and at the same rate as they would give for other
requests in the county provided, however, that any new
allocations or service so granted will not be considered to
be an addition to their contracted amount.
Y1,0
IN THE CIRCUIT COURT OF THE
NINETEENTH JUDICIAL CIRCUIT
IN AND FOR OKEECHOBEE COUNTY,
FLORIDA
CIVIL DIVISION
OKEECHOBEE BEACH WATER
ASSOCIATION, INC.,
Plaintiff,
vs.
Case No. 93- 555 -CA
CITY OF OKEECHOBEE, FLORIDA,
and OKEECHOBEE COUNTY, FLORIDA
Defendants.
CITY OF OKEECHOBEE, FLORIDA
Defendant,
vs.
OKEECHOBEE BEACH WATER
ASSOCIATION, INC.,
Plaintiff.
CITY OF OKEECHOBEE, FLORIDA,
Defendant and
Cross - Plaintiff,
vs.
OKEECHOBEE COUNTY, FLORIDA,
CLIFF BETTS, Jr., TOMMY CLOSE,
CHARLES W. HARVEY, SUSAN B.
HUGHES, and STEPHEN PORTER,
no€ individually, but in
their capacities as the
commissioners of Okeechobee
County, CHRISTOPHER W. CHINAULT,
not individually, but in his
capacity as County Administrator
for Okeechobee County.
Defendant and
Cross - Defendants,
DEFENDANT CITY OF OKEECHOBEE'S
NOTICE OF SERVICE OF INTERROGATORIES ON PLAINTIFF
OKEECHOBEE BEACH WATER ASSOCIATION, INC.
NOTICE IS HEREBY GIVEN that the original and one copy of the
Interrogatories, consisting of 22 Interrogatories, propounded by
Defendant CITY OF OKEECHOBEE, by and through undersigned counsel,
have been furnished to the Plaintiff Okeechobee Beach Water
Association, Inc. by hand delivery on this ..% �) day of January,
1994 in accordance with Rule 1.340, Florida Rules of Civil
Procedure.
John R. Cook, City Attorney
FBN 262951
202 N.W. 5th Avenue
Okeechobee, FL 34972
(813) 467 -0297
Richard A. Lotspeich
LANDERS & PARSONS
P. 0. Box 271
Tallahassee, FL 32302
(904) 681 -0311
and
Michael Wm. Morell
FBN 570280
310 West College Avenue,
Room 222
Tallahassee, FL 32301 -1406
(904) 425 -8300
Attorneys for City of
Okeechobee
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing Notice of
Service of Interrogatories has been forwarded this &- day of
January, 1994 by hand delivery to: Burton C. Conner, Esq., 301
Northwest 5th Street, Okeechobee, FL 34972; and John D. Cassels,
Jr., Esq., Attorney for Okeechobee County, 400 N. W. Second St.,
P. O. Box 968, Okeechobee, FL 34973 -0968 and by U. S. Mail to
Steve Walker, Esq., Messer, Vickers, Caparello, et al., 2000 Palm
Beach Lakes Blvd., Suite 900, West Palm Beach, FL 33409.
John R. Cook
3
IN THE CIRCUIT COURT OF THE
NINETEENTH JUDICIAL CIRCUIT
IN AND FOR OKEECHOBEE COUNTY,
FLORIDA--
CIVIL DIVISION
OKEECHOBEE BEACH WATER
ASSOCIATION, INC.,
Plaintiff,
vs.
Case No. 93- 555 -CA
CITY OF OKEECHOBEE, FLORIDA,
and OKEECHOBEE COUNTY, FLORIDA
Defendants.
CITY OF OKEECHOBEE, FLORIDA
Defendant,
vs.
OKEECHOBEE BEACH WATER
ASSOCIATION, INC.,
Plaintiff.
CITY OF OKEECHOBEE, FLORIDA
Defendant and
Cross - Plaintiff,
vs.
OKEECHOBEE COUNTY, FLORIDA,
CLIFF BETTS, Jr., TOMMY CLOSE,
CHARLES W. HARVEY, SUSAN B.
HUGHES, and STEPHEN PORTER, not
individually, but in their
capacities as the commissioners
of Okeechobee County, CHRISTOPHER
W. CHINAULT, not individually, but
in his capacity as County
Administrator for Okeechobee County.
Defendant and
Cross - Defendants.
DEFENDANT CITY (')F OKEECHOBEE'S FIRST REQUEST FOR PRODUCTION
OF DOCUMENTS TO PLAINTIFF OKEECHOBEE BEACH WATER ASSOCIATION, INC.
Defendant, CITY OF OKEECHOBEE ( "CITY_ "), by and through its
undersigned attorneys and pursuant to Rule 1.350, Florida Rules of Civil
Procedure, hereby requests Plaintiff, OKEECHOBEE BEACH WATER
ASSOCIATION, INC. ( "OBWA" or "Association "), to produce the following
documents at the office of the City Administrator, City of Okeechobee,
55 S.E. Third Avenue, Okeechobee, Florida 34974, on Monday, February 28,
1994, for the purpose of inspection, copying, testing, or sampling:
I. Definition of Terms
As used in the Request for Production, the following terms have
the meaning indicated:
A. Reference to any corporate or business entity shall include
all successors, subsidiaries, divisions, parents, affiliates, and merged
or acquired predecessors of them. Reference further includes all
officers, directors, other employees, attorneys, engineers, accountants,
consultants, agents or other representative of any nature.
B. "Documents" refer to all written or graphic material and all
copies that are not identical in all respects with the original, however
produced or reproduced, of any kind and description, in the actual or
constructive possession, custody or control of the OBWA which are
further described below, including but not limited to, originals and
non - identical copies of correspondence, paper, books, pamphlets,
periodicals, accounts, letters, microfilm, telegrams, notes or sound
recordings or other memorials of any type of personal or telephone
conversations or meetings or conferences (including, but not by way of
limitation, telephone bills and long distance telephone call charge
slips), minutes of directors, shareholders, or committee meetings,
2
memoranda, photographs; objects, interoffice communications, records,
reports, studies, written forecasts, projections, analyses, estimates,
designs, plans, group prints, drawings, schematic and other diagrams,
specifications, contracts, options, licenses, agreements, purchase
orders, acknowledgment forms, quotation files, including requests and
receipts therefor and acknowledgments, reports, account reports, drafts,
charts, graphs, indexes, statistical records, cross - sheets, abstracts of
bids, stenographers' notebooks, calendars, appointment books, diaries,
or transaction files, data sheets, data processing cards and tape and
computer printouts.
C. "Communications" refers to the act or fact of communicating in
any way including, but not limited to, correspondence, telephone,
facsimile, telex, meeting or any occasion of joint or mutual presence,
as well as the transfer of any document from one person to another.
D. The phrase "care, custody, control or possession" specifically
includes documents held by you or any of your representatives, howsoever
designated, including your attorneys.
E. The terms "you" or "yours" refers to the OBWA, together with
its agents, employees, other representatives and attorneys.
F. The terms "related to" or "relating to" shall mean directly or
indirectly mentioning or describing, pertaining to, being connected
with, or reflecting upon a stated subject matter.
II. Documents Upon Which Privilege is Claimed
For each document requested herein which is sought to be withheld
under a claim of privilege, provide the following information:
A. The place, approximate date, and manner of recording or
otherwise preparing the document;
3
B. The name and title of sender, and the name and title of the
person who received the document;
C. The name and corporate position, if any, of each person to
whom the contents of the documents have heretofore been communicated by
copy, exhibition, reading or substantial summarization;
D. A statement of the basis on which privilege is claimed and
whether or not the subject matter of the contents of documents is
limited to legal advice or information provided for the purpose of
securing legal advice;
E. The name of the request to which the document is responsive;
F. The entity and corporate position, if any, of the person or
persons supplying the attorney with the information requested in (a)
through (e) above.
III. Identification of Documents
In an effort to promote an orderly presentation of documentary
evidence in this case, and to insure full compliance with this process,
OBWA should identify each document produced in response to this Request
with identifying initials and consecutively number the same.
IV. In Construing this Request:
A. The singular shall include the plural and the plural shall
include the singular.
B. A masculine, feminine or neuter pronoun shall not exclude the
other gender.
C. If a Request for Production is silent as to the time span for
which production is desired, production shall be made of all documents
requested regardless of their time of creation.
D. Each request shall extend to all documents which are, or have
been, in the possession or subject to the control of the OBWA, its
4
representatives, agents or attorneys at any time during the period of
time covered by this Request.
V. DOCUMENTS TO BE PRODUCED:
1. All documents identified or referred to in OBWA's Motion for
Partial Summary Judgment and Exhibits "A ", "B ", "C" and "D" attached to
the motion.
2. All documents identified or referred to in the Affidavit of
Leland Pearce in Support of Plaintiff's Motion for Partial Summary
Judgment and Exhibits "A" and "B" attached to the affidavit.
3. All documents identified or referred to in the Affidavit of
L.C. Fortner, Jr. in Support of Plaintiff's Motion for Partial Summary
Judgment and Exhibits "A" through "L" attached to the affidavit.
4. All minutes of all meetings of the OBWA Board of Directors at
which the subject of OBWA's contract negotiations with the CITY for the
bulk purchase of water was discussed.
5. All minutes of all meetings of the OBWA Board of Directors at
which the subject of the planning, financing, design, construction,
permitting and operation of a water treatment plant was discussed.
6. All minutes of all meetings of the OBWA Board of Directors at
which the subject of OBWA's litigation with the CITY was discussed,
including but not limited to, discussions by the OBWA Board of Directors
regarding settlement of the above- referenced litigation.
7. Any and all reports or studies generated by OBWA's consultants
relative to the economic feasibility of OBWA's planning, design,
financing, constructing, permitting and operating of its own water
treatment plant as compared with OBWA continuing to contract to purchase
bulk water from the CITY or any other producer of potable water.
5
8. All documents and correspondence regarding OBWA's efforts to
obtain interim and permanent financing for the purpose of planning,
designing, constructing, permitting and operating a water treatment
plant.
9. All documents, correspondence and communications between OBWA
and the United States Department of Agriculture Farmers Home
Administration ( "FmHA ") or United States Rural Development
Administration ( "RDA "), including but not limited to:
(a) OBWA's application for a loan for the purpose of
planning, financing, designing, constructing and operating a water
treatment plant;
(b) the FmHA's or RDA's processing, modification, acceptance,
approval or denial of OBWA's loan application, plans, designs,
specifications, contract documents and permits as required by any FmHA
or RDA letter of conditions; and
(c) any revisions, submission or supplementation made by OBWA
to its application either before, or subsequent to, FmHA's May 3, 1993
approval of OBWA's request for loan.
10. All active service agreements entered into between OBWA and
its members prior to August 3, 1993, the day OBWA filed its complaint
against the CITY.
11. All active service agreements entered into between OBWA and
its members between August 8, 1993 and November 1, 1993.
12. All active service agreements entered into between OBWA and
its members since November 1, 1993.
13. All documents which indicate which OBWA members with active
service agreements with the Association have meters installed to serve
potable water to their parcel and to whom OBWA is currently providing
6
water service for domstic, residential or commercial consumption.
14. All documents which indicate which OBWA members with active
service agreements with the Association have meters installed to serve
potable water to their parcel but to whom OBWA is not currently
providing water service for domestic, residential or commercial
consumption.
15. All documents pertaining to the location, size, material, age
and condition of OBWA's water distribution system, including but not
limited to pipes, tanks, valves, meters, storage reservoirs and fire
hydrants through which OBWA supplies its members with potable water.
John R. Cook, City Attorney
FBN 262951
202 N.W. 5th Avenue
Okeechobee, FL 34972
(813) 467 -0297
Richard A. Lotspeich
FBN 593060
LANDERS & PARSONS
P.O. Box 271
Tallahassee, FL 32302
(904) 681 -0311
and
Michael Wm. Morell
Attorney at Law
FBN 570280
310 West College Avenue
Suite 222
Tallahassee, FL 32301 -1406
(904) 425 -8300
Attorneys for City of
Okeechobee
7
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing has been
forwarded this -1\- day of January, 1994 by hand delivery to: Burton C.
Connor, Esq., 361 Northwest 5th Steet, Okeechobee, FL 34972 and John D.
Cassels, Jr., Esq., Attorney for Okeechobee County, 400 N.W. Second
Street., P.O. Box 968, Okeechobee, FL 34973 -0968; and by U.S. Mail to
Steve Walker, Esq., Messer, Vicers, Caparello, et al., 2000 Palm Beach
Lakes Blvd., Suite 900 West Palm Beach, FL 33409.
John R. Cook
8
01- 25 -94 04:14PM FROM LANDERS & PARSONS TO 181346747 8///0943 PO02/004
IN THE CIRCUIT COURT OF THE
NINETEENTH JUDICIAL CIRCUIT
IN AND FOR OKEECHOBEE COUNTY,
FLORIDA
CIVIL DIVISION
OKEECHOBEE BEACH WATER
ASSOCIATION, INC.,
Plaintiff,
vs.
Case No. 93- 555 -CA
CITY OF OKEECHOBEE, FLORIDA,
and OKEECHOBEE COUNTY, FLORIDA_
Defendants.
CITY OF OKEECHOBEE, FLORIDA
Defendant,
vs.
OKEECHOBEE BEACH WATER
ASSOCIATION, INC.,
Plaintiff.
CITY OF OKEECHOBEE, FLORIDA,
Defendant and
Cross - Plaintiff,
vs.
OKEECHOBEE COUNTY, FLORIDA,
CLIFF BETTS, Jr., TOMMY CLOSE,
CHARLES W. HARVEY, SUSAN B.
HUGHES, and STEPHEN PORTER,
not individually, but in
their capacities as the
commissioners of Okeechobee
County, CHRISTOPHER W. CHINAULT,
not individually, but in his
capacity as County Administrator
for Okeechobee County.
Defendant and
Cross - Defendants,
01-20 -94 04:14PM FROM LANDERS & PARSONS
TO 181348 98//
r, i
NOTICE ■0 HEARING
TO: Burton C. Conner, Esq.
301 Northwest Fifth St.
Okeechobee, FL 34972
Steve Walker, Esq.
Bob Diffenderfer, Esq.
Messer, Vickers, Cparello,
et al.
2000 Palm Beach Lakes Blvd.
Suite 900
West Palm Beach, FL 33409
3 P003/004
John D. Cassels, Jr., Esq.
400 N. W. Second Street
Okeechobee, FL 34973
PLEASE TAKE NOTICE that on February 1, 1994, at 10:30 a.m.
or as soon thereafter as counsel may be heard, the undersigned
will call up to be heard before the Honorable William L. Hendry,
a judge of the above Court, at the Okeechobee County Courthouse,
Okeechobee, Florida, the following:
CITY OF OKEECHOBEE'S MOTION FOR CONTINUANCE
TIME RESERVED: 30 Minutes
PLEASE GOVERN YOURSELF ACCORDINGLY.
I HEREBY CERTIFY that a true copy of the foregoing was
served on Burton C. Conner, Esq. and John D. Cassels, Jr., Esq.
by hand delivery, and on Steve Walker, Esq. and Bob Diffenderfer,
Esq. by U. S. Mail this day of January, 1994.
John R. Cook, City Attorney
FBN 262951
202 N.W. 5th Avenue
Okeechobee, FL 34972
(813) 467 -0297
Richard A. Lotspeich
LANDERS & PARSONS
P. 0. Box 271
Tallahassee, FL 32302
(904) 681 -0311
01 -25 -94 O4:14PM FROM LANDERS & PARSONS TO 18134674798;/'0943 P004/004
and
Michael Wm. Morell
FBN 570280
310 West College Avenue,
Room 222
Tallahassee, FL 32301 -1406
(904) 425 -8300
Attorneys for City of
oxeechobee
.LJ1 FROM LA17J)U.S t PAESONS
CINDY L. BARTH.,
JOSEPH W, LANDERS,
,,,JQHN 1. LAVIA,
RICHARD A. LOYSPEICH
FRED A. McCORMACK
P4-1 I I R A
HOWELL L. reRt:u5ON
QF C,OUNEEL
VICTORIA J. TSCHimitEt.
5ENICP COtt.t.c/LTANI
0407 A 14140CR Ot YAD FLORIDA MR)
LANDERS & PARSONS
ATTORNEYS AT LAW
TELECOPY TRANSMITTAL
NUMBER OF PACES (INCLUDING COVER PACE):
TO: 417 z,1 4
FROM:
DATE:
P1 P1
310 WEST COLLEGE AVENUE
POST OFFICE BON 271
TALLAHASSEE. FLORIDA 32302
TELEPHONE (904) 991-0311
TELECOPY (904) 2E4-70-7■Wo"
LANDERS & PARSONS
lvIESSAGE;
TIME:
IF ANY PROBLEMS, CALL (904) 681-0311
//:-.
J `ti
-;4 11:4=r "'.M FROM LA PEk:'. & RSONS
TO 181340 74 PO02/005
IN THE CIRCUIT COURT OP THE
NINETEENTH JUDICIAL CIRCUIT
IN AND FOR OKEECHOBEE COUNTY,
FLORIDA
CIVIL DIVISION
OKEECHOBEE BEACH WATER
ASSOCIATION, INC.,
Plaintiff,
vs.
Case No. 93- 555 -CA
CITY OF OKEECHOBEE, FLORIDA,
and OKEECHOBEE COUNTY, FLORIDA
Defendants.
CITY OF OKEECHOBEE, FLORIDA
Defendant,
vs.
OKEECHOBEE BEACH WATER
ASSOCIATION, INC.,
Plaintiff.
CITY Off' OKEECHOBEE, FLORIDA,
Defendant and
Cross - Plaintiff,
vs.
OKEECHOBEE COUNTY, FLORIDA,
CLIFF BETTS, Jr., TOMMY CLOSE,
CHARLES W. HARVEY, SUSAN B.
HUGHES, and STEPHEN PORTER,
not individually, but in
their capacities as the
commissioners of Okeechobee
County, CHRISTOPHER W. CHTNAULT,
not individually, but in his
capacity as County Administrator
for Okeechobee County.
Defendant and
Cross - Defendants,
CT
1-12-94 11 4'a ".1'I FROM 1 AN DERS PARSONS
TO 18134677-,, PO03i005
DEPENDANT CITY OP OKEECHOBEE'S
MOTION FOR DEFAULT BY THE COURT
Defendant, CITY OF OKEECHOBEE ( "City "), through its under-
signed counsel, pursuant to Rule 1.500(b), Florida Rules of Civil
Procedure, hereby moves for entry of a default by the Court
against Plaintiff OKEECHOBEE BEACH WATER ASSOCIATION, INC.
( "OBWA ") for failure to serve an answer and defenses to the
City's counterclaim on the undersigned as required by Rulc
1.140(a)(1). In support thereof, the City states:
1. This action was initiated by the filing by OBWA of its
Amended Complaint for Declaratory Judgment on September
17, 1993 (attached hereto as Exhibit 1).
2. On October 6, 1993, the City filed in a single document
its Answer and Affirmative Defenses to the OBWA Amended
Complaint, as well as its Counterclaim against OBWA and
a Crossclaim against co- defendant Okeechobee county
(attached hereto as Exhibit 2).
3. To date, OBWA has failed to serve its answer and de-
fenses to the City's Counterclaim.
WHEREFORE, the City of Okeechobee requests the entry of a
default by the Court on the City's Counterclaim Against Okeecho-
bee Beach Water Association, Inc. as required by law.
The undersigned certifies that a copy hereof has been
furnished to Burton c. Conner, Attorney for Okeechobee Beach
Water Association, Inc. on January , 1994.
—a H ii�,i H .i C.) 4
Ji lL :4 1.`iJ�1'a. 1':lvi Ltii,.:if.. c; 1.�.�:�'���,:� 1 1V1J0 i
UU4i UUU
Richard A. Lotspeich
LANDERS & PARSONS
P. O. Bo};. 271
Tallahassee, FL 32302
(904) 681 -0311
John R. Cook, City Attorney
FEN 262951
202 N.W. 5th Avenue
Okeechobee, FL 34972
(813) 467 -0297
and
Michael Wm. Morell
FBN 570280
310 West College Avenue,
Room 222
Tallahassee, FL 32301 -1406
(904) 425 -8300
Attorneys for City of
Okeechobee
• bM 1 U 1 t 1 J 4 (J 14 _
fULJ UUb
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing has been
forwarded this day of January, 1994 by U. S. Mail to Burton
C. Conner, Esq., 301 Northwest 5th Street, Okeechobee, Ft 34972;
Steve Walker, Esq., Messer, Vickers, Caparel:io, et al., 2000 Palm
Beach Lakes Blvd., Suite 900, West Palm Beach, FL 33409; and
John D. Cassels, Jr., Esq., Attorney for Okeechobee County, 400
N. W. Second St., P. 0. Box 968, Okeechobee, FL 34973 -0968.
Richard A. Lotspeich
`,"roMM Si,,y,
Board of County Commissioners . 12
.14.
Okeechobee County -°,{ 1917 e
January 10, 1994
Ms. Monica Clark
Economic Council of Okeechobee County, Inc.
P.O. Box 718
Okeechobee, FL 34972
Re: Draft #5 - City /County /Beachwater
Dear Monica:
County Attorney
Cassels & McCall
Post Office Box 968
209 NW 4th Avenue
OKEECHOBEE, FLORIDA 34972
(813)467 -6900 • Fax 1763 -1031
I have been asked to comment upon the above - referenced document. Although my
imagination runs wild with what may have been in drafts #1 through 4, I will contain my
curiosity!
Seriously, although every lawyer has a compulsion to edit documents, I will refrain from
doing so in this case and can recommend this language to my Board. After all, if the parties
do not genuinely wish to cooperate, all the letter agreements in the world will not make
them do so. I hope this moratorium will not simply give other parties an opportunity to
consolidate their positions behind the scenes.
Finally, I would suggest that if the City wishes to offer an olive branch to Beachwater so that
their participation is encouraged, it would agree to extend the existing water supply
agreement by a corresponding ninety days at the curtent rate. In this way, Beachwater
cannot be said to be prejudiced by the delay.
With kindest regards, I am
cc:
'1 ohn Cook, Esquire
Burton Conner, Esquire
Mr. Christopher Chinault
Susan B. i 1195 Tommy Close Clif 13etts, Jr. Stephen Porter Charles W. Harvey Christopher W. Chinault
District 1 District 2 District 3 District 4 District 5 County Administrator
DRAFT #5
12/30/93
SUGGESTED AGREEMENT WORDING: CITY, COUNTY, BEACH WATER.
WHEREAS, the City of Okeechobee, the County of Okeechobee and
Okeechobee Beach Water Association, Inc., (the Parties)
recognize the great public interest in providing a
comprehensive water and sewer utility service for the entire
area,
AND WHEREAS, the Parties recognize the great benefits to be
achieved in a unified effort to plan together for these
services for all of the citizens of the area,
AND WHEREAS, to avoid further disagreement and litigation,
all the parties wish to enter into settlement and planning
discussions in good faith, and to seek consensus on the best
alternatives for the delivery of water and sewer services to
the Okeechobee area;
NOW THEREFORE, believing that their interests in this case
may benefit from mediated settlement discussions, it is
hereby stipulated and agreed by and between the Parties,
through their respective counsel, during the period as
defined herein, to stay any legal action and discovery and to
join in any necessary motions to toll any trial or hearing,
and to suspend any and all unilateral activities which are
for the purpose of providing new water and sewer utility
service in the area. Such activities to be suspended
include, but are not limited to, planning, permitting,
funding, and acquisition activity or construction (except for
the City's water treatment facility construction now in
progress).
ALL OF THE PARTIES to this agreement specifically recognize
and agree that all statements, discussions and
communications, whether written or oral, made pursuant to
this discussion process, are deemed to be settlement
negotiations and as such are not admissible as evidence in
any lawsuit or administrative hearing or proceeding.
THE PARTIES do hereby authorize and create a utilities
mediation working group to explore, on their behalf, all
relevant information and alternatives with the intent to
establish the most cost efficient and equitable means for
providing area wide utility service for the entire community,
and to report their findings to the Parties respective boards
at least as often as their regular meetings or as requested
by the respective boards.
THE PARTIES agree that the membership of the working group
will be five members, and that within ten days they will
appoint their respective members as follows:
The Okeechobee City Council -- one council member and one
citizen of their choosing
The Okeechobee County Commissioners one commissioner
and one citizen of their choosing.
Okeechobee Beach, Water Association -- one citizen of
their choosing.
RECOGNIZING the need for specialized professional assistance,
the Parties instruct the working group to engage assistance
in this effort, and to prepare and present for approval a
schedule of any funding needs prior to any expenditures being
made.
THE PARTIES AGREE that the City must have assurance from the
Florida Department of Environmental Protection that any
delays caused by this effort will not jeopardize their good
standing with that agency, and agree and accept that, though
this assurance must be acquired, it will not delay the
formation and proceeding of the working group.
THE PARTIES AGREE that Okeechobee Beach Water must have
assurance from the City that, as a result of their
participation in this agreement, their supply of potable
water for their customers will not be jeopardized and that
the City hereby renews their previous offer to supply water.
AND LASTLY, THE PARTIES AGREE to abide by the terms of this
agreement for a period of ninety days, and to use their best
faith and efforts to reach agreement together on the most
beneficial plan for supplying water and sewer services to the
people of the area.
SIGNATURES:
AMENDMENT NUMBER ONE TO AGREEMENT BETWEEN PARTIES
TO DISCUSS SETTLEMENT OF OKEECHOBEE WATER ASSOCIATION, INC.
VS. CITY OF OKEECHOBEE /COUNTY OF OKEECHOBEE LAWSUIT
Pursuant to the terms and conditions of the Agreement between Parties to
discuss Settlement of Okeechobee Beach Water Agreement vs. City of
Okeechobee /County of Okeechobee Lawsuit ( "Agreement "), the Parties thereto do
hereby consent to an extension of the Agreement until June 30, 1994 and the terms
and conditions of the Agreement will remain in effect and binding upon the Parties
until June 30, 1994 unless further extended by the Parties upon mutual consent.
AGREED this 25 day of April 1994 by the City of Okeechobee.
Mater; "City of Okeechobee
AGREED this 25 day of April 1994 by the Okeechobee County, Florida.
Chairman, Okeechobee County
AGREED this 25 day of April 1994 by Okeechobee Beach Water
Association, Inc.
•
President, Okeechobee each Water
Association, Inc.
City. cf O]eechobee
55 S.E. Third Avenue o Okeechobee, Florida 34974 -2932 e 813/763 -3372
April 19, 1994
Burton C. Conner
301 N.W. 5th St.
Okeechobee, Florida 34972
re: OBWA vs. City of Okee <hobee
Dear Burton:
In light of present circumstances, I have met with co- counsel
in preparation for the April 28 hearing, and note that with the
agreed sixty day abatement.. of the action, you have apparently not
responded to our rEques!:. to produce, filed just before the
abatement.
One of our concern:;, frankly, is the accuracy of your
supporting affidavits with your motion for summary judgment. It is
imperative that we posse:3s the information sought in order to
properly prepare for thin hearing, and to timely file our own
affidavits in opposition.
Please advise Ly April 22 as to your progress on this
information, so that if it is not to be available, we may proceed
accordingly.
KindeS Regards
i
JohnCoo ✓
JRC /rb
xc; Richard Lotspiech
11.11 :TON C. CONN1 +.1:, .I_'. A.
ATTORNEY AT LAW
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April 6, 1994
John R. Cook, Esq.
202 N.W. 5th Avenue
Okeechobee, FL 34972
HAND DELIVERY AND FACSIMILE: 467-4798
Re: Beach Water vs. City
Dear John:
As you know, the moratorium expired on April 1. I had discussed with you before the
moratorium went into effect. that Beach Water intends to proceed with the partial summary
judgment hearing on April 23, unless the moratorium is extended in writing by mutual
agreement of all the parties.
Beach Water has maintain all along its willingness to enter into a utility authority. In fact,
Beach Water stands ready to sign a1 letter of intent with the City and the County to form
a utility authority. It is Beach Water's understanding that the City will have the benefit of
an appraisal and a rate study to consider at its next regular meeting on April 19. Beach
Water does not intend to enter into a further extension of the moratorium unless the City
Council gives satisfactory assurances at the April 19 meeting that it is moving in the
iirection of entering into a utility authority.
So that there is no misunderstanding, Beach Water intends to go forward with the hearing
on.April 28, and will oppose any motion for continuance by the City.
Sincer
urton C. Conner
cc: Board of Directors
John D. Cassels, Jr., Esq.
Richard A. Lotspeich, Esq.
John W Abney
Stephen A. Walker, Esq.
Mark G. Lawson, Esq.
Chris Chinault
Michael Wm. Morell, Esq.
IN THE CIRCUIT COURT OF THE
NINETEENTH JUDICIAL CIRCUIT
IN AND FOR OKEECHOBEE COUNTY,
FLORIDA --
OKEECHOBEE BEACH WATER CIVIL DIVISION
ASSOCIATION, INC.,
Plaintiff,
vs.
CITY OF OKEECHOBEE, FLORIDA,
and OKEECHOBEE COUNTY, FLORIDA
Defendants.
CITY OF OKEECHOBEE, FLORIDA
Defendant,
vs.
OKEECHOBEE BEACH WATER
ASSOCIATION, INC.,
Plaintiff.
CITY OF OKEECHOBEE, FLORIDA
Defendant and
Cross - Plaintiff,
vs.
OKEECHOBEE COUNTY, FLORIDA,
CLIFF BETTS, Jr., TOMMY CLOSE,
CHARLES W. HARVEY, SUSAN B.
HUGHES, and STEPHEN PORTER, not
individually, but in their
capacities as the commissioners
of Okeechobee County, CHRISTOPHER
W. CHINAULT, not individually, but
in his capacity as County
Administrator for Okeechobee County.
Defendant and
Cross - Defendants.
Case No. 93- 555 -CA
TO: John D. Cassels, Jr., Esq.
400 N.W. Second Street
Okeechobee, FL 34973 -0968
Steve Walker, Esq.
Bob Diffenderfer, Esq.
Messer, Vickers, Caparello, et al.
2000 Palm Beach Lakes Blvd., Suite 900
West Palm Beach, FL 33409
Burton C. Connor, Esq.
301 Northwest 5th Street
Okeechobee, FL 34972
NOTICE OF VOLUNTARY DISMISSAL
YOU ARE NOTIFIED that, the cross - plaintiff CITY OF OKEECHOBEE, pursuant to Rule
1.420(a)(1), Florida Rules of Civil Procedure, dismisses without prejudice the following specific counts of its
crossclaim as to the following specific cross - defendants and defendant: Count I (Unconstitutionality of
Franchise Ordinance) and Count II (Violations of Government -in- the - Sunshine) are voluntarily dismissed as
to cross - defendants CLIFF BETTS, Jr., TOMMY CLOSE, CHARLES W. HARVEY, SUSAN B. HUGHES,
STEPHEN PORTER and CHRISTOPHER W. CHINAULT; Count II (Violations of Government-in-the -
Sunshine) is the only count voluntarily dismissed as to defendant OKEECHOBEE COUNTY.
The undersigned certifies that a copy of this notice has been furnished to the above named attorneys
by mail on this3/ day of a-.}'`G''`- , 1994.
2
John R. Cook, City Attorney
FBN 262951
202 N.W. 5th Avenue
Okeechobee, FL 34972
(813) 681 -0311
and
Richard A. Lotspeich
FBN 593060
LANDERS & PARSONS
P.O. Box 271
Tallahassee, FL 32302
(904) 681 -0311
and
Michael Wm. Morell
FBN 570280
Attorney at Law
310 West College Ave
Suite 222
Tallahassee, FL 32301 -1406
(904) 425-8300
Attorneys for the City of
Okeechobee
3
OKEECHOBEE BEACH WATER
ASSOCIATION, INC.,
Plaintiff,
vs.
CITY OF OKEECHOBEE, FLORIDA,
and OKEECHOBEE COUNTY, FLORIDA
Defendants.
IN THE CIRCUIT COURT OF THE
NINETEENTH JUDICIAL CIRCUIT
IN AND FOR OKEECHOBEE COUNTY,
FLORIDA __
CIVIL DIVISION
Case No. 93- 555 -CA
CITY OF OKEECHOBEE, FLORIDA
Defendant,
vs.
OKEECHOBEE BEACH WATER
ASSOCIATION, INC.,
Plaintiff.
CITY OF OKEECHOBEE, FLORIDA
Defendant and
Cross - Plaintiff,
vs.
OKEECHOBEE COUNTY, FLORIDA,
CLIFF BETTS, Jr., TOMMY CLOSE,
CHARLES W. HARVEY, SUSAN B. HUGHES,
and STEPHEN PORTER, not individually, but in
their capacities as the commissioners
of Okeechobee County, CHRISTOPHER
W. CHINAULT, not individually, but
in his capacity as County Administrator for
Okeechobee County.
Defendant and
Cross - Defendants.
CITY OF OKEECIIOBEE's REPLY TO OKEECHOBEE BEACH WATER
ASSOCIATION INC's AFFIRMATIVE DEFENSES
Defendant, CITY OF OKEECHOBEE ( "CITY "), replies to each affirmative defense
raised by Plaintiff, OKEECHOBEE BEACH WATER ASSOCIATION, INC. ( "OBWA" or
"Association "), and alleges:
REPLY TO OBWA's FIRST AFFIRMATIVE DEFENSE
1. Both Chapter 180, Florida Statutes, and City of Okeechobee Ordinance No. 488 were
enacted in pursuance of the same subject upon which the parties contracts were made. Both the
statute and the ordinance were in full force and effect in August of 1985 when OBWA and the
CITY entered into their existing agreement. Therefore, any rights which the the CITY enjoys
under the statute and the ordinance, became a part of the 1985 contact as if the statute and
ordinance had been expressly referred to or incorporated into the contract's terms. Furthermore,
in addition to the implied term which exists in all contracts that they are subject to the paramount
power of the state to govern, the express term agreed to by the parties in their 1977 agreement
which recognizes the CITY's right to serve new water users south of the agreed upon boundary,
effected a novation in the parties' earlier agreements. As carried forward in the 1985 agreement,
this term further establishes OBWA's acquiescence in and ratification of the CITY's legitimate
exercise of the police power in enacting Ordinance No. 488, and therefore cannot constitute an
impairment of contract. Finally, OBWA's notification to the CITY that it will no longer seek to
purchase water from the CITY afier its agreement expires on September 30, 1994, signifies the
imminent termination of the contract beyond which none of OBWA's contract rights will survive.
2
REPLY TO OBWA's SECOND AFFIRMATIVE DEFENSE
2. The CITY denies OBWA's second affirmative defense. Section 180.06(3), Florida
Statutes, authorizes any municipality organized for the purposes contained in Chapter 180 "To
provide a water supply for domestic, municipal or industrial uses."
REPLY TO OBWA's THIRD AFFIRMATIVE DEFENSE
3. OBWA may not, by virtue of having sought its purported franchise from Okeechobee
County, abrogate its responsibility under Chapter 180 to obtain the CITY's consent prior to
entering into such a franchise which allows the Association to construct, operate or maintain
public works within the CITY's Chapter 180 service area. Similarly, Okeechobee County may not
exercise its non - charter county homerule authority to grant OBWA a franchise fee in a manner
which conflicts with Chapter 180, Florida Statutes.
REPLY TO OBWA's FOURTH AFFIRMATIVE DEFENSE
4. Ordinance No. 93 -5 enacted by Okeechobee County is unconstitutional to the extent
that it impairs the contractual rights of the CITY under the series of agreements the CITY has had
with OBWA since 1970. Okeechobee County may not exercise its non - charter county homerule
authority to grant OBWA a non- exclusive franchise fee in a manner which conflicts with Chapter
\ L L: ,L _
MI R. Cook, City Attorney
FBN 262951
202 N.W. 5th Avenue
Okeechobee, FL 34972
(813) 681 -0311
180, Florida Statutes.
3
and
Richard A. Lotspeich
FBN 593060
LANDERS & PARSONS
P.O. Box 271
Tallahassee, FL 32302
(904) 681 -0311
and
Michael Wm. Morell
FBN 570280
310 West College Avenue
Suite 222
Tallahassee, FL 32301 -1406
(904) 425 -8300
Attorneys for City of Okeechobee
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing CITY OF OKEECHOBEE's REPLY
TO OKEECHOBEE BEACH WATER ASSOCIATION, INC.'S AFFIRMATIVE DEFENSES
has been furnished to the following by U.S. Mail on this :9/ day of , 1994:
Burton C. Connor, Esq.
301 Northwest 5th Street
Okeechobee, FL 34972
Steve Walker, Esq.
Bob Diffenderfer, Esq.
Messer, Vickers, Caparello, et al.
2000 Palm Beach Lakes Blvd., Suite 900
West Palm Beach, FL 33409
4
John D. Cassels, Jr., Esq.
400 N.W. Second Street
Okeechobee, FL 34973 -0968
John R. Cook, City Attorney