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BCC Minutes 07/19/1982 W ___~_ ¡~~_~__:~.___._ ~~ ______~:~__ ~~~ ___Jl Nðplos, Florida, July 1~, 1982 LET 8£ REMEMBERED, that tho Roard of County Commissioners in end lor the County of Collier, ~et in Workshop S05sion At 9105 A.M. in B,uUding ·F- of thoCourttlouse Complex, f.aot Nðples, Florida, with t'he followi~g Memblrs pre.entl CH...IltMMII VICE CH^IRM...NI C. R. -Russ- Wimer Mary-Fr^ncoa ~rU90 John ~. piator (9120 A.M.) CIU ford wenzel DAVid C. Brown ...lso PRESENTI E~inor M. ~kinner and Maureen ~enyon (1140 P.M.), , I Deputy~Clerks, Burt L. Saundors, County AttorneY7 Irving Borzon, Utilltl~s ~an^ger7 Chris Holloy, Administrative Assistant to the County Manager, and Graco Spaulding, Administrative ^id~ to tho Board. AGENDA 1. Discussion of a Utility Ft~nchisc Agreemont and delineation of utility 5crvico aroas "ape fll Utilities Manager Borzon suggested that the ðiocussion of the workshop be confinod to the draft of the franchise Agroement ~a presonted and that the decision should be mado, if there Are any chan90s, as to whethor the changes aro worthy of inclusion to tho existing franchise. Ho said thero are at least thre~ franchises which are potentially ·up for consideration- at tho prescnt time as well ð8 others thnt ~8Y come lip 1n the future that were recently brouqht to his attention anrt hp. sðld hn felt thoDo should be ~ddresßod at another timo' after the b~.lc format of the ^qreement h.. boon ftqreed and that the Page 1 MOK 069 fACE 650 ~...;.. _.- -.- -....,- - -.---- - _.- -- -:-- - -- - - - - - -- r ---:-:-----:-- ---: -~:t " j . ' " ' ~ ,J '\ . "'";1 -t- . '., 'f ' ,I r,·L. i J,t' . ~~,~... ',I .. If" ·~.1' ,',·i ~.J' . . ;,~ ~ : -- - - - - - - - - -~~ - ~:.-. - _...:.. - - -"-- ~ - - - - ~ ~ -- ~ - - ~ - - _..:.-- 'I , . I) . ., I - '. 1.1 " 'r' ~-," '..' \ ~ " ~o~~ . 069 PACE 651 July 19, lqf\2 individual franchiso requirements for ~ny particular utility could be dealt with more relHHly. lie explained that the m~jor conøiderlltion, Ðftor the ~gr~ement is fin~lized, will be the aroa and such special conditionø th~t May apply to one frnnchiae and not to the other. Chair~an Wimer aRk~d if Mr. Berzon meant that thore would be no discussion r~gðrding franchise areas today, to which Mr. Borzon responded affirmatively, and Chairman Wimer explained that wan the purpose of the workshop. Mr. Bcrzon said that he understood that the Franchise Agreoment was to be drafted, reviewed and agroed upon by all parties because the area involves plnnnlng activities which go beyond the individual requirements for nny one particul~r Franchise ^greement. Chairman Wimer said t~ðt the Franchise ^greement would be covered first and that if thero lire any comMents regarding franchise areas, that topic will be covered secondly. Mr. Berzon said that Attorney Donald A. pickworth, who has been involved in the process, haß reviewed the draft and that late Friday he called and gave him comments that he would bring up at th~ appropriate tlm~ in this discu6sion. lie said Mr. Pickworth said that he would provide some written comments to the Board sometime in tho next day or two. Mr. Berzon explained thc!\t 'he hils reviewod the draft with County ^ttorney Saundera. Responding to Chairman Wimer, Mr. Berzon stated ' that he had no changes to tho draft. ~r. Saunders said that he did not propare anything to 8ubmit a8 recommend~d changes to any particular provision, however, on July 16, 1982 he bad made suggestlont\ to Mr. Borzon re-qardinq overAll rcqulðtlon of utilities. lie Bðld those suggestions do not apply specifically to pag. 2 .4~"~: ,:;t~ :2. "~ J, :~r--':~i~" , ... · '."{ r;;;¡;¡ ~! __ __ __ ~____________ ____ _ ___ ___ __ _ _ _ ___J_; July 19, 1982 tho .a.grocm.ont and, thoroforo, this woulð not be thl) proper time to make . thoso ~uggcstiona. Mr. ßerzon øu~gcßtod that thd draft be roviewed pago by page. Stating thðt his ob1cctiona were massivo, ...ttorney Toby Carroll, .represent i ng Rookory Day, roforrcd to Section l, regðrding the bound.:", ar hs and tho County being ablo to chango those. "ttorney Loo Crouch, reprosenting The Glades "'ssociatlon, explained that his clients have a vital interest in the proposod Franchise ~greem.nt as it relates to thorogulatlon of rates. He said that thu Prcsident of tho ^ssociati~n and many of the Board of Diroc- tora are present. He said that the BCC ðl80 sits as tho Board of Co~misaioners, ex officio governing board of the County W~ter/5ewor District, which was promulgated under Section 153 of the Florida ~ta- tutes, whoreas tho qener~l authority of the r.ommissionørs comes from 125.01 Florida Statutes. He suggosted that the roforence to the Board of County Commissioners ex officio the governing board of the County Water/Sewer District is inappropriato in the Agreement on Page I because 153 is totally unrolated to the oxercise of tho Board's juris- diction as County Commissioners and he asked for clarification. Mr.', sau~ders said he would check into that matter but deletion of that reference does not affect th~ substance of the Agreement in any way. ~r. Borton statod that ho understood Mr. pickworth felt that reference to the District was appropriate and in no w,ay would deter ,and that there arc some referonces lator in the Agreement which might mðke it ðppropriato to refer to tho District, adding that he would defer to the County Attorney ðS to whether it should or should not be in tho document. Page 3 ~O:¡K 069 PACf65'Z . .i -- --- -:-:- -- - - --: -,- ---,- - - - - -- -- ~--1:j". ---.---- ....._-..,. ,\' . .. " . ; ".I' . '! ·1 ',..., \. .. .. I . . '. .." . , i, " .! ' ,) l!. :., ,r. . '.' ~ ' ~ , " .: íl l' \1: H ',I j ~ r:! ... 1-' .. il II '\ ' \ ~\ : t ' i it;· .' . t H r. I' t, I ' L I. ______L-.,...-L.....-- --.-:...=-.--..--. ¡ ~: ¡ ·~X' .~ " ,. "~' I' '1 l '. " ----_......_-~---'" ~o~t 069 rACE 853 July 19, 1982 Mr. Cro uch referred to the word "exclusive" just b~foro the word "franchise-, on pag e I, and sðid thðt, whether or not it i. an exclu.ivo or nonexclusive franchise, would become v i tal for the protection of tho County and the consumerø in tho futuro as it reIDt.. to tho County's ability to doal with other municipalities within the 8amo franchise aroa, based upon the charges thnt a franchisee may be charging and the satisfaction or dissatisfaction that tho Commission mayor may not show for a particular franchisee. Rospondinq to Chairman Wimer, Mr. Crouch explained that h. would like to discuss the matter as it relates to the interest of The Glades nt a future point in time, adding that he undergtond~ that Chairman Wimer wants to cover the franchise language now, which he is willing to do. Chairman Wimer requested tho attorneys to check out the questions raised by Mr. Crouch. Mr. Clark Nichols, repretJcnting 'Tho GladoS, ,roferred to pðga 2 ,an~ the sentence th~t reads that the franchise is granted ·subject to ,the provisions of the Laws of tho State of Floridð and rules, regulations, and ordinances adopted or hereafter adopted by the County or any water or sower district now existing or hercðfter established", and he maintained that the broad languago is the power to destroy. lie said that, if the statement means to oporðte and maintain it in accordðnce with rulos, regulðtions ðnd ordinances, at least the franchise would be limited to that factor, howover, that tho broad statemont, to which he referred, would make it possible to pass an ordinance s~ying that all private franchisos are hereby terminated. Responding to Chairman Wimer, ~r. Nichola sugq~sted that the warda ·operate and maintain- be . . '. inserted before -subject to- rather than tho ,oforement1onad verbage. Page .. -- -- - - --" - - -- - -- --"-- .... .. "'f ,., "...--.--..",*- !I :1 . , I ,¡ . . t f __ _ ________,..---- ____ __ _ _ _ _ _ _ _ _ _. _ _ _ _ _ _ _ _._ _l., . ... ,I ~~ ¡:~ "..." .. " '---J bJ 1~'WoI :Tu1y 1<'\, lqR? FOllponding to Chairml'ln \oJir.1f}r, ~~r. f-1'IIInrlt"rs stl'lte~ that thoro mny be aome intent to permit thio Board to chnnq~ tho service ðre~. in the future and, if tho .uqges~cd verbnqe is inserted, th~t the franchise would be subject to rulnn ðnd rcgull'ltions dcalinq with ·operation ð~d Maintenance- would preclude the ACC from ch~n9ing sœrvice aroa., addin9 that may not be as far as the Botlrd would want to go on future regula- tions. Agreeing with Mr. Saunders, Hr. Borzon said thl'lt if the Board adopted any rules or regulations~ in the!uture, they would be adopted ða a result of a publi~ hearing, adding that thoro may be ð time in the futuro when tho franchiAo ml.lY hl1VO to he terminðted. He r('!ferrod to such a situation on Good11'1nd. H~ sl'Iid that thnro may be another way to ensure that a franchisc i8 not torminnte~ in 50me capricious manner, however, to confine tho franchiso solely to the operation and mainte- nance practices of the utility would limit the Po~rd in D way that the 9CC may wish hnd not been donn in the futuro. Responding to Comminsioncr B~own, Mr. Berzon said thl'lt he was not suggesting that anything bo done except to IClIve tho Board in a position that whatevor rules nnd rcgulðtions it has noed for in tho future can bo adopted and applied to this or any othor franchise. Mr. Ber%on listed roanons whereby tho ~onrd may want to revise a franchise, adding that, to tho extent that the ~oard 18 not goinq to infringo on an in~ividu~lIB rights, the Board h~s to h~ve flexibility becnuse the Board is granting a privilcgn to provide a service for as long as that sorvice is provided in a manner cona1stcnt with the way the ßoard perceive8 that privilege to be given. Clarifying the aituation, Chairman Wimer said that if the ~oðrd grants a franchiße to an individual, now or in the futur~, to opcrat~ ð sewer system in a given PðCJO 5 ~o:)!( 0 &9 r^~t: 65'4- _ _ -:;:- __ _ _ _ -:-- _ _ ,_ _ _ _ _ _ ~ _ _ ~:_. _ _ _. -- -- .- - -- ¡ - r - ~ - - - - -."7 ¡ . ~'I. ' / . II;'· . I . , ' . r . I ~ ":" 1 . I ~:~i ..: ;,. ~\ , .:.~~ :' J :. " " ·1 ,,:; ! I, ~)' . . I "0' j ', . '" ."'''.:,;j" ~ . ' ' ,. . J. ". . _________J~_~_______._.___.___________________ ~o~~ '069 PA~t 655 July 19, 1982 area, ho assumed that a geogrnphical areA is dofined that the frAnchi... il to cover nnd that if it does not cover said areas by the Itandards of the BOArd, that would be grounds for torminat~ng tho frnnchise. Ho said thðt he aß8umed if the franchisee do.~ not moot the Itandardß of the DER or all St~te and Federal agencies consistently, that would also be a r.ason to terminato tho fr~nchise and that evørything else is governed when the person comes in for rate increases. He said ~hat he thought an individual granted a franchi.e has tho right to know that the area he is ~oing to service cannot be changed at the whim of the Boðrd and that it is not subject to some arbitrary ch~ngo. The Commissioners agreed. Ch~irman Wimer asked how: the draft can be written to roflect his aforementioned contention? Mr. ~rouch commented that on pnge 2 there are two references to ev officio of the governing board of the County Water-fiewer District which should bo deleted, adding that th~ words public hearing, as it relate. to final approval of ð franchise, should read public hearings becauso the so types of hearingß traditionally tako far longer than just one hearing. He stated that it is fairly standard procedure that any franchise is alwðYs subjected to tho provisions of thA Laws of the State of Florida, the rules, regulations and ordinances adopted by the Commission and horeafter adoptod by the County, adding that the reasonl for that are clearly stfttcd in Florida jurisprudence and the Floridð Statutes. He s~id that a franchise has been defineð as a special privileqc and in conferr~d ~y governmont upon individuals and that, becauso it is not a right and becftuøe of the public intere.t involved, the public int~rest necessarily subjects it to government oversight and control. He explained that, if a franchise is ~imply granted without Page " " ... -4. '" ~;J ~ ~~~ ,:l.' ~:'I 't';> '~. . __;-_ - -- - -;-- - -- -- -- ..- -- - --- - -;. ;---- -~- ---'- ---11- --;.;-"7"'----:--~::\ , I~ j-,~t . I ·.,'.IÎP: '. ·....'1~ . . ,~~ ':~tl \ I I ---------------------------------------~ . . ., u 1 Y 1 () , 1 <) R " any riqhts of cxr.rcising tho dcgrro of control which lnw confcrR upon tho Bonrd ~t ð lnt~r timn, in his opinion, it would b~ in^ppropriðtft to atriko it from the franchise, adding it is ð vital part of any frAnchise. Referring tó Page ~, ~r. Carroll 8~id ~r. Nichols' and hi. concorn i. that'they do agroe it 1e n privilege and that the Board can regulato th~t privilego but thnt they do not believe thoy are getting much of a privilcge when tho Board can unilaterally, without cause, revoke the privilego. He reforred to ~rticlo 1 on r~qn 3 where the language gives tho privilego and right to change the bound~ries and saið that if he has extended a sower system ho would not want the Bo~rd to take the " privilege aw~y if ho has acted in reliance on the franchise. He reforred to Page 3, four l1n05 down in Article 1, to the language, regarding dedication and stated that, in his opinion, the county has -jumped over- from th~ir power to grant franchises to the Sectio~ of tho general ordlnancRo of the Ccunty th3t relata to developore to dedicate, adding that the Board would b~ ntionallzing his pl~nt before he -gets off tho ground-. '2 ~r. Berzon said that the plant is not required as a dedication under the Subdivision Regulations, adding that the only thtnqs required are the wator nnd newer linos themRelvcs, to which I"Ir. Carroll explainod that WðS his point, that the drðft jumpa from the franchise section in the County over to development Doction and the dr~ft is trying to bring both of thone stDtutCG -into pl~y-. Ho sold that if his cliont has ð tranchisn hr. owns th~ plant, to which ~r. Ror%on stated that if ~r. Carroll is apenking of the trcðtm~nt faciltløs, Pðg e 7 ~o~~ 069 PALt656 ,Þ :,. I , .~. " . " . .... -40 .. t' . . . ~ .. j " f . ,;. '.'''. " " t , ' 1_.':- _ _ _ _ _ _ - _...-J - - --- ~- - - -.- .....:-- --- - - --.-- -::...;.,----- ~O~K 069 fA~t: m J':Ily 19, 19112 thoso 3ro not evon considered in tho proposed ~qreem.nt. Mr. B~rzon said that a franchi.e can be operated with tho line. being dedicated to the public and leased back to the franchiseo without øny difficulty, adding that he did not know whether anyone would construe that to. -taking a plant awny", as Mr. C~rroll atated. He said th~t tho only thJng that is being taken is the dedication of the wator and .ewer lines from tho development to tho poople who are, in effect, paying for tho~ and th~t once that is done, that is an issuo that has been set aside once and forever and ~o longer comes up as a matter of rata base, or sellinq at ~ futuro tim6, as an asset and is something that tho franchi80Q gets back in the form of ð lease arrangement, which h. can operate and maintain and (or which he can expect reasonable compensa-, tion. He said the plant remldns the franchisee's property and hi. basi. for an invcst~nnt. Mr. Carroll said ho felt that the draft has to stay within the ordinance on franchising and not mold the development ordinance into the franchising Agreement which he contends i8 being dono. Mr. Borzon ooid that Mr. pickworth folt that this provision, the last sontence in ~rticle 1, is certainly relev~nt and that it is important for that to be ret~ined in the franchise agreement so that when the franchiRce signs tho agreement he knows exactly what obliga- tion. he has token on and also what privileges he is being grantod, adding that ho felt ð franchise that is as specific as possible i. in everyones best interest. Commissioner piotor said that he did not feel that tho County would chang~ tho boundaries of a franchise unless an owner requested such . ch~ngp. Mr. Carroll stated that he thought the word -county· Pe9. It ,. ..... -_... -------------_....~ . ' --~---------------7-----j-----~-~-~------' .,.... " '.. J ' I f1 J.! \ ' ' . . ". I ' ' . ,1, , '. I 1 ~' ' . . . .' . . I .~ ~ ' . ~., Ii , \ '. , :,' . ¡;¡;¡} ~ · l, . ' ---~--------------~~--~--------~., t. " ~ ...... -------- July 1C'1, 19"2 should be doleted and replacod'with the word ·p~rtie8-. Ch~lrman Wimef said h. would like to get 80mo positive direction, noting that thore vas proaently a droft and, at this point, he requested a recess and said that when the meeting ia reconvenAd, if anyone hOB anything to offer, ho wants a word fOf word changQ so that at the conclusion of the ~ft.ting a document would result that most persona preRent could live vith In order to movo forward and hold hearings regarding tho document. Mr. Clark requosted clarification, to which Chairman Wimer said that he folt the discussion of the dr~ft woulð still be handled page by page. *****RECESSI 91~0 ~.M. RF.CONVENED: 10:30 ~.M.·*·** Chairman Wimer stated that the direction given 1n Juno was for all the parties to go ovcr tho agrooment during the six or eight weeks before this workshop, but that since that did not occur and becauso he understood that many of tho people involved just received the draft 01 tho Franchise ~~rQemont during the past week, he doubted that a polished documont would result from this meetin<J. lie Bl'lid that by going through the specifics he folt that tho feeling and direction of the Board should become clear to everyono involved and that, while the wording devised today may not bò adequately and legally stated, staff should be ablo to return with a poliBhed Franchise Agreement aftor t od a y , sse s s ion. Mr. Crouch referred to his comments regarding page 1 and the confusion betwflcn Ch~ptcr 125 and 153, adding that tho exclusive nature of the Franchise would hnve to bo addrossed at nOMe futurp. timo AS it rolates to individual franchisoes because Qðch are different. Chairman Pago 9 &OOK 0Ð9 PACt 658 " -,;;"....."_._~.,,_.,..~... Mr. Crouch's concern. , .. ~\ , . ',I' I ,,. - _. '. -.400 .' , ... ~ ' . - - -- - - - - - - - - -- - - -. - - --- - - - - - - - -- - - - ------- --- . 069 July 19, 1982 . ßOOK 'rACt~ . Wimer stðtedV~t th~ attorney would confer on tho Aoard of County Commisoioners versus r.x officio govorn1nq board of tho Wðter-Sewor Dlotrlct, and Mr. S^Un~CrB concurred. Reforring to Mr. Crouch's second point regarding granting on exclusive franchIse, Chairman Wimer said that could have ð substantive effect. Ho said it is the consensus of the Board to grðnt on exclunive franchlso unless staff has dlff~rent rpcommend^tions, adding that tho word ·cxcluslve- r.mains unless otherwise øt~ted, to which the Commissioners agreed. Mr. Borzon roferred to Pago 1 and stated that there aro provisions of ^ppendix A, B, C, and 0 Ðnd that ono of tho so ",ppondixoft does provide for any spacial provisions that would apply to ð partIcular frðnchlse as opposed to all t~p. others, adding he felt that would cover Chðirmðn WImer requested a motion regarding Page 1 of tho draf~ with the stipulation that tho County Attorney will check the wording on the DistrIct versus the Board. CommIssioner Wenzel ~oved, seconded' bý' CommissIoner Brown and carried' unanimously, that the Board adopt PlIge 1 ot tho document, with the aforementioned stIpulbton. Chairman Wimer stated that tho motion refers to the ^doption of '" document which would go to public hearings. Mr. Nichols said he objected to the vcrbage on Page 2 and that ho recognizes that the ordinancca will apply to his client on operatIon and m~dntenance. 110 asked, reqi'lrds'ng tho ability to t",kc the frzmchIa. away by futuro ordinance, th",t the wordo ·operate and maintaIn- be Insorted in front of the word ·subj~ct·, in the line following the line that goes ",11 the way ~cross tho page of tho draft. Mr. Nichola said that ho Wð8 apoaking from collectivo notes of foui interested pðrti~. prflsent tod~y. Paqo 10 '. .. ,~," ~. d ., '.It':. of' _;¡, I ~~..J (¡¡ ~~ ~ ------------------------------------- ,July 19, 1982 f'lr. Crouch said thðt, relating to Pago 2, ho proposed that the 1angungo romllin oxa~tly It. it is in the ðrllft for tho rnðsons he previously stated. no said th~t operation and maintennnce are two clearly defined and leqal torms and that there are m~ny things over which the Board will .nø ahould rotain jurisdiction and that the public Intorest may dictate thnt the Board exerciso that right, aome time in the future, òver item. othor than just tho operation and _oint.nance. Comml.ølonlr Wonlol roqueatfd ut." comm"nt on this .Itufttion, to ~ "-,,. ......t.w. ~1lArf. u...... .........1.1.'1 .h. lAw. a' kh. IUU o. rlorida will apply to all contfact~, a~d h* C~9*_t*d, ~.ð,fl., l#~~~ questIon prosented ia whether or not the ~oarð wAnts to make clear In , the agreement that frnnchis. areas are suhject to control by the Board at a future date or whether the Board w"nts to leave that issuo open. He addod if tho verhage that all the laws of Florida, a8 well as ordinances, rules and rcgulalions approved by the Board apply, that it is,~lear that at some future dat~, if the ~oard changes a franchise , area, for whatever rAasons, then the partlos have agreed to that at the I " beginnIng. ComrnisF-ionor Kruse roquc~tod clarification and Mr. Saunders said h. folt the Board was making a decision as to whether they wanted to havo tho aforementioned authority throughout the agreement, adding that it the~CC decides, at this point, they only want to have control of the operation and maintonðnce, when the discussion reachos Pago 3, that the decision will have to be mðde as to whether or not the Board wants to take out that control Dver franchise areðS. He exprossed his opinion that, for consiatency, the control should bo throughout the a9re~ment or not at all~ adding that is a·polIcy docislon which the i Board must ~ðke. Aløo, Mr. Saundors said that on Page 3, Pa(ðgraph 1 Page 11 ~OQK 0&9 fA~t660 - __ __--y_-_-- -- - - - - - - --r--- - - -- --- r------ .,," '.. .... . '. . '..1 . ' '. . ¡, ". ,) li '~ '~, ) .; , fl'''~ " r- \ . ~' . , Ii I .. . . -:! .~' " " . ;;.:, ,,1 }~ ::,.:.t,,; :~~~~ , \ " I ,.: i . , I J . . ~ ' ,.., -;: ¡ -". ,,', -. I \ " ,~ ' 1._,_______-"-_-'- ------ -------------------------- 069 ~~4' ,'uly 19, 1902 &O~K fÂL~~ is an operative provision of the contrftct which will qovorn and, thereforo, if tho words ·oporate and maintnin- are insnrted on P~qe 2, but thon throughout tho agreement the 80ard makes it clear that they have tho authority to change frnnchise areas, that is what will control. Commissioner Wenzel moved, seconded by Commissioner Pistor, that Page 2 of tho draft, be approved as drafted. Mr. Sounders said, in his opinion, that to lonvð tho drnft aft preRp.ntly worded, the intent is to give tho Board a tremondous amount of flexibility In changing sorvice , area. for whatever reason, to which Chairman Wimer said that the Board wanted a limited amount of flexibility. Mr. Snunders suggested that the Board might wont to dir~ct staff to put in language that says that this Board, after public hearing, could ch~ng~ service areas if the , I utility io violating the agreement or certain standards. It wos the " consensus of the Board that the stoff should draft the aforementioned 1 language. Mr. Carrol and Mr. Nichols responded that thoy had no problem with this diroction, with Mr. Nichols adding, as long as 1 everyone undorstands the direction. At Mr. Berzon's request, Chairman Wimer roatated tho direction of tho Board saying that tho Board wants the future Boards to hove some limited flexibility to change franchi8. boundaries for violation of a franchiso nnd to have the specifics spoIled out, i.e. if a franchisee hos some requirements to service areas of certain population donBity, etc. and refusna to do it, then he w1l1 give specific reasons. tie said that the Bo...rd wo!Inta to CjulIrd against arbitrary changos, lidding thot the Board i8 drawing up a business contract and want~ to protect tho people on both 8ide.. Mr. Crouch stated that Page 2 should stand a. it '1. written. The ~otion carried 4/1, Chairman Wimer opposed. Page 12 . _. -- ...- -- ~-- _.- -~. ~..... .~_. _.- . ..__. --.-..--'---..,-. .~-_._---------------_...... ._o,_.._,_,_a__ ..... , ., ~.., í4J1t ¡ ~. ';",.,J \ . ' ' t , ,. I, --- - --- ---- --... --- - - --- --- - - - - - - - - - - - ---- -"'""-' July 19, 19J:12 Mr. Carrol referrod to Line S, rngo 3 nnd requested th~t the word .County· be changed to ·partios· and that the last sentence of Paragraph 1 of ^rticle I be deleted, becauso that sentence ^tt~mpts to 1ncorpo~ate the Rub~ivis1on Regulations into tho Franchise ^greement. Mr. Nichola said that tho presont language says. that it can be changed ~h.n it hðs been proven to be more economically fe~slble for a contiguous utility to serve a portion of the area, adding that the languAge is broad enough so thAt the Boatd could taka 1/2 of an exiating system thAt 1. in operatIon and servico and give it to someone else and that is too broad. He saId ho would rathcr see the language beginning in the fifth line with ·and tho County· deleted throuqh ·portion of the area- and cover that problem with tho directions that Chairman Wimer just gavo staff. Mr. Nichols sAid that deleting that verbage would not do away with the areA as a mattor of concern but would remove it from tho agreement. Mr. Crouch sAid, regardIng tho County expressively reservIng the right to change the boundnries of tho franchised Area when it Is proven more economIcally feasibl~ for a contIguous utility to serve a portion: of tho area, that he felt that portion needs clarification because there would be difforencos aa to whether or not there was an in-place facility or whether the draft is talking about a CranchIscd Area not yet served, adding that ho agreed with Mr. Nichols under the condition that the matter be addressed before .1t be ro-lmposed into the ordinanco for purposes of clarifIcation. However, Mr. Crouch said h@ did not understand tho concern regarding deleting the aforementioned last .entence of ^rticle 1, since the Board has 1n existenco OrdInance No. 76-71 and he saId if that was deloted, tho net .ffoct would be th~t tho franchIse would supersede an already existing Ordinance ,whIch roquires PlICJe 13 ~oaK 069 fAC£66.2. _.- ~ - -- - - - ---- - - - - --.-- ~- - --..- - - - - ,-- -.r,-0- ----~:Í Z- ",;.:~, , . ~ 11 .~": ":f . .' r ~ . . :. '~j¡) : .,~~:~: .,: ,;~". -j '~~ ..: It ,I '~'. .)' ì' · L~ _ _ __ __ ~_~L - ~ =--- ~- - - _._~- -~- -~-=- - --" - - - - - -- bOOK Osg PA~t 663 Jut y 1 C), 1982 routinely that, when a person devolops a Bubdlvison, he 1. obligated to ,,. put in the sewer and w~t.r linos systoms. Tape .3 Mr. Crouch said, it seems to him, it would not be in the public interes~ to grant tho franchiso in ordor to defeat an already existing Ordinance, ~dding th~t the 8ontenc~ should not bo doletcd but rather emphasized in the Agroomont. Co~mission.r pistor ~oved, seconded by Coœ~i.sloner Kruse a~d cArried unanlmouoly, that on Page 3, ...rticle 1 the words -and the County hereby expressly reserves the right to change the boundaries of the franchised area whon it Ie proven more econoœically feasible for ð contiguous utility to serve a portion of the area-, b. deleted and that moro appropriate language, following the intent of the Board, be developed. Regarding the second point, deletion of the last sentenco in Articl~ 1 on poge 2, Commissioner pistor said that, as Mr. Crouch stated, this is a requiroment of ð County ordinanco and that ho thlnkø that statement should remain. A long discussion followed during which Messrs. Carroll and Clark presented their Arguments for deleting the Aforementioned 8cntence and Mr. Bcrzon gave his roasons tor the sontenco remaining in tho draft, which wore th~t the only thing a developer can bring in for a rate of return is the amount of money inyc8ted in the plant and whatever line. he may have to construct on his own. Commis810n.r Wenzel Asked Mr. Clark if he m.ant he is ðgainot dodicating Ilnos to the County, to which Mr. Clark stated that is correct. Commissioner Wenzel 80ld he felt .~h.re are two positions ret'Jardinq the situation. He compared the 8uhjoct to a priv~to dev~lopment whereby 0 person mðintain8 ownorship of the ro~ds tor the private use of th08Ð peroons living In tho dovel- PlU]., 14 ------------.~--~--------------~-~~~~---~~~ ¡ . , . '. 'I ,~ .' . · '~f~ :. L~ ~ ~-;J . ' , . , \, -~----------_._----------------~--------_. July 19, l"lB2 opment, adding he could then seG th~t the lln~8 should be owned by the developer. He stated that It tho roa~s ~ro public, howovor, then tho lint. should belonq to the County. Mr. Carrolldiaagreed, noting that ( the Uft. of County roads is not the subject. Mr. Clark added that Florida Power and Light have their facllitics located In the easements and they own those f~cllitles. ^ diecuDsion continued during which Chairman Wimer auggeated that this itom be broken Into different cate- 90rles, since not all developments are developed In the same manner. Mr. John Beebe, speðking on behalf of L~kewood Homeowners, said that, In his subdivision developed by U S liome Corporation, the utility lines, which were built in the right-of-way easements, ~ere dedicated to the County for public use. lie said that his organizðtion docs not want tho languago doleted because they want the lðnguago to protect those persons who have paid for tho lines and that, in the case where the lines have becn dedicated to the County, they do not want to pay ~ franchisee again to have tho work dona or to cloud the County's rIght, title and intcrest to the utility lines. Mr. Berzon clarified his undftrstanding of tho County's position as bein~ that any lines that havo bcen dedicated to the County shall remain the propcrty of the County and can be leased back to tho utility to use and that the utIlity can racover tho approprIatø cost for oper- ating and maintaining those lines anð that, in tho event that there i. a buyout in the futuro, the linos are not an asset that has to be dealt with because it is th. proporty of the County. converBly, he explained, thore is no one interested in taking an asset from the franchisoe in which he has mado 0 provon Inveotment without propor compensation and proper recognition of his ownership of th~t assot in tho rato bose. Therofore, tho concorn about dodicating tho linea 1 ! Pago 15 f,.: . &O~K 0 69 PA~~ &C4: . I ' , '\,;; II . .; '. I)", ;; , ~, .¡,) ..i . . , ~,. I i ·r' .. .. :.. ___ ____ .-.lJ_-J- _--""Jr....-__._-_. ----- -- --------------.... &oalt.069 PAt.t665 July 19, 1982 ahould not enter into tho .uhject. He said tho re~son .the provision i. in the agreement is to make certain that thero is no question, At ð later date, that either those ðodic~ted lines are not to be pðrt of the rate base or that they are not to' be part of a buyout provision. Chairman wimer asked Mr. Berzon, if a utility runs ð force main and i. ellowed to recover that expenditure in their rates or if a utility system is bought out, why would a utility have to dedicate the lines at this timo, to which ~r. Berzon explDined that no ono is asking that, becau.e ð franchise utility operating only as a utility, not as a~a developor, is not requireð to dediCAte th~ lines. Ho said that the problem could ariso in tho case of the Cl~des where they operate with.: -two hats-, operating both as ð utility and developer. Commissioner Wenzel asked if an addendum could not be made to make the various changes that relate to those companies rather than have a standard form, and add on the points that Mr. Clark is raising that would be pertinent to his utility, to which Mr. Berzon agreed. He said that, if a utility does get a contributed asset, that Asset is not part of his rate base' or ð recoverable item in a buyout, in order that the pe~ple who pay for that only pay one time. He said that he seos no conflict in the ordinance and ~ubdivision Regulations aa they apply to developers. Chairman Wimor said that pðrt of the thrust behind this subject is . .' s becaus, of the County's inability to provide sower in Eðst Naple. and I . that e~iating sewer systems in East Naples, of thoir own desire and at the Boárd's request, are agreeing to expand beyond the boundaries of their own subdivision, thereforo, they would have to be f~ðnchised. He explained that a franchise corporation, who may also be tho devel~per under a different nam., wlll sorvi~e the devolopment and will dedicftté I I p&-qe 1 Ii n---------~--ï---------------~---------- .-...,._'-""-..~..~.~-_. .. ~ 1\ :i . II --------------------------------------_.~.. -- July 1<), 191':7. the linos to thp. County but, if he extonds thu lin~8 buyond his own dovelopment, tho developor owns the lines ftnd is ontitlèd to a return. Mr. Berzon said that is correct, provided ther~ Qre no contributions '. fro. partl~s outsido hiœ own organization to that. construction, to which Mr. Carroll disagreed, addinq that is the reason he was before the Board the last time. Responding to Chnirmnn Wimer's question of why tho sentence is necessary, Mr. eerzon said it wao to preclude any 'j question that tho SubdivIsIon Regulations, as they apply, are relAvant i . to tho,egreement. Chairman Wimer stressed that the discussion is about a utility that does not develop a subdivision. Mr. Crouch said that someone is the developer of the land ~nd that, under the current ordInance as passed in 197~, someone is obligated to contribute the lines to the County and that the County can lease them back for $1.00, and control thom bettor in ownership by leasing them back than can be done by giving ownership and then attempting to protect the rate base fro. the inclusion of those lines in the progr~m. Mr. Porzon pointed out that tho discussion relates only to thoso properties that come up In the future and that are under the r~qu1rp.Ment8 of Ordinance 7~-6, Subdivision Regulation~, adding that regarding anything outside those I I areas,: h~ would ðg ree wi th Mr. Car roll with one except ion that if a person receives a contributed asset, from whatever source, that asset \ should not be pðrt of the rote base or part of an item that could be s6ld at. a later date. Còmmissioner Wenzðl noted that the discussion is reqarding a øtrð1ght utility aa well aa a developer who wðnts a tranchine to serve his area and other areas. II. said he thought that those two items should be separated, adding that he could soe the point Mr. Carroll Is ~ak1ng as well as the County's point ot representing thð pcopl. and &OOK 0 &9 PA~t SiB rago 17 - - - --- -----------~---....- - ---..- -------,. -~ -------. ~~', ~... ,.J' r. I. . . . , , ¡ 1 :'. ""~~~' ~ ~ . >~f; ,,;,~J ..... ~ ,_ - __ - - - - - - u. _'-"- _ - - - - - -'- -.- - - -- - -- --- ----*: ,.' . -Ie ~, lJ '." ì I .' . '... - -- -- - -" - - ~- - - - - - - - - - - - - - - - - - - - - - ~------ ~o~~ 069 P^~~ 667 " u I Y 1 ~ , 19 R 2 protocting their interest. Chairm~n Wimrr stated that the intorest of tho people is alr.~dy takon caro of in the 6uhdivlsion R~gul~tion8. Coamissionor Pistor said thftt, r~garding the pftrt of Marco Island ~hft~ has a sower, individual lot ownoro who wroro on the original' l!Io"-'or, pai.d for the sewer and, thore foro, in order to protect the people, the Uncia õ .--...f 1 should be dedicated to the County ~o that they Are not continuAlly charged for tho lines for which they paid when they bought the property. Chairman Wimer said he understood Commissioner pistor's point, however, that he r~called at the rate hearings with Marco Island that it was maintained that the people did not pay back into the sewer. Mr. Berzon said that tho intent of the øentence is to make cortain that there are no exemptions for anyone from tho County'. Subdivision Regulations whore they apply, and that n straight utility, casting itself in the role of a developer, would como under the Subdivision Regulations, to which Mr. Carroll said that the County is not entitled' to anything in his utility comp~ny unless they negotiate and buy it. Tape ... I . , , Mr. Crouch said that Mr. Carroll has no utility company without the franchise and that It is th~ privilege of the Commission to put whatover conditions on the franchise they desire that ftre in the pUblic interest and that, in his opinion, thp contribution of the lines is one thing that is in the interest of the public. Chairman Wimer nsked the County Attornoy why the sentence under discussion is necessary in the Frenchise Agreement if all the ~oard i8 talking about i8 that the utility Is an ontity that constructs, m~intains, and operates ð utility system, to which Mr. Saunders Ððid that Ch~pter 11-1/4 applies to the dedication requiremonta of developnrs, and that the section doalinq with dedication applies only to dovclopors of tracts of land. He said .' Pðgo 18 \\ " \I ----------------------------------------. .utJ ..--t " _ _ ~_ _ _ _ _ ~ _ __.- _ _ _ - _~ - _or:- - - ~ - ~ - - -.r,- --- - "T"'- - - - --' . "',',' ~. , , , . II ~", ' ~ , '" ' ' : ' "':' ;,), ° ~ ,Vi ~¡:~$ . . July 19, 1982 that a dovolopor would have to comply with the dedication r~quiremont Irr~ardle.. of what the Frenchiae ~re.ment atatoa. He said that .pparently there 1. aome atafl concern that a developor .ay function .. . utility and that ther.e would be avoidance of the dedication require- .ent by having two aeparate corpbrationa, adding that aa long as there I. unity of ownership between tho developer and the utility, he did not .ee that there could be eny avoidance of the dedication requirement. Ae su94e.ted that the Board provide something in the Pranchiso Agreo- ..nt clarifying that, if a utility operate. as a land developer, tho dedication requirements of a land develop~r will apply to that utility. Re.ponding to Chafrman Wimer, Mr. Crouch said that it does make a . differonc. if a person is both a develorer ftnd a utility person, and he atated it was better to retain the sentence 80 that thero is a ~lear understanding. Mr. Berzon askod what would happen, in the future, if a developer does not want to put in the lines and if he goes to Mr. Cerroll'. client and requosts him to install thoso lines, and Chairmàn Wimer said then tho lines would belong to the utility, to which Mr. Berzon pointed out that the dovoloper would thon havo circumvented the requirements of the Subdivision Regulations. Chairman Wimer said that, in the case described by Mr. Ber zon, the developer doos not rocover the cost of tho lines in the cost of the lots, and he asked whlJlt the problem would be then, to which Mr. Berzon repeated his previous ~tatement regarding the devolopor negating the ordinance by that f~S.;\ " l'iíet.ton. Mr. Borzon said a piece of proJ>Qrty would have to be pDtd for twlco because it would be recovered in the rate etructure and would also be an item to be purchasod at a later date. Commissioner ~ruse aSKed if the problem could be solved by clari- fying the situation to show that there is a differance·and that a ' . ~ P8g_ 19 aoaK 089 fA~1i '" -,~~--~".,..,,'....,..~,.-".,; *_..- ,(' ¡I , , . t . ' . .... j ,.. . _4e .... - - - - - ~-~..:. - ~ - -... -- - - --- -- - -.: - - --,,:,,,,,, -~ - -.- - - - - - - - - - - - -- '001t 0,69 PAL~ 869 July 19, 19A2 utility, whon ftctlng as a developrr, her~by agrees to br bound by tho subdivision Roglations, to which ~r. Rnrzon s~id he would be hnppy to defer to the County ^ttornðY for that clarification. Commissioner ~ruse said that the discussion is not about existing lines. Mr. Saunders agreed with Commi8sioner Kruse's contention that if a .utility 18 requJred to go into an existing aro~ and pays {or the lines, that utility owns the linos and if a now area is going to be nttached to a subdivision, that subdivision dedicates the lines to the County, and I the County owns the lines. Mr. Berzon said that the draft could be revised to say that the proviaions do not apply to existing lines ~hat have not been dedicated in tho past, to which Chairman Wi~er expressed his opinion that it would be easier to delete the sentence. Mr. Berzon said that if the scntence is deleted, the Board openø up the door for -the end run-, to which Chairman Wimer said thllt a specific pðragraph should bo provided fòr the possibility. Mr. Berzon explained that the way to provido for it is to say that the developer, or anyone olsQ'whQ..' is developing property, shall not be rcqardod as the investor In th~t line, that the investor in the line Is, in effect, the purchaser of the land. Mr. Carroll objoctod stating that would ruin the whole concept. Hr. Crouch suqgcsted that the Board allow the persons from the dlfforent developments, with the County Attorney and himself, to write a critique on the proposed lanquage, submit it to Mr. aerzon fø~ revie~ and then present a rocommendation to the Commissioner, thoroby 8avin9 tl~e from further discussion of this subject. *....Commlssioner Kruse left tho room ftt 11145 ^.H.···*· Co~mløsionor W~nzel naked if the County "'ttor~~y ~ould change the wordli1<j to protect tho rights of the direct ut,Uity company from the Page ,n ..- - - - -- - - -- ........-- --- ------- -- ----- ---------- , . ...._.."~,.,..,_...,,,' .......-.-- ...... _ _ __~ _ -.,.._ _ ___ __ _ _._ __ _ -~------T'- ~-------_. f " ,J ~ .~ (, .c ,'i, .,,1 ¡. July l~, lq~2 wording regardlnq the developer and vice vorsa, to which ~r. Saunders atated hi. opinion that hiø earlier .t~to~ont, th8t lanquage .tDtln~ if .. . utility i. acting a. . land developer In an are., the dedication requirement. ol Chapter 31-3/4 would apply, may satisfy .t~ff and the utilitie.. He said that he could not see the utility objocting to that provision, especially Mr. Carroll's client who does not act as a land developer. .....commi.sioner Kruse returned at ]l14R A.M.····· Responding to Commissioner Pistor's remark regarding a developor I contracting to have wator and sewer lines instftllod by a utility being . business matter and that the Subdivison Regulations still require that those lines must be dedicated to the County, Mr. ~.undors said thet tho issue thon becomes what is properly included in the utility's rata base, adding that if a part of a system is donatod by a ~.v.lo~r, the quostion becomos whethor the utility should be able to include that In his rate base. He explained that item is addrossed later In a .eparate part of the Franchise Agreement and would be considered by the Bec at a rate hoaring, therefore, that situation may not present a .erious problem. Chairman Wimer asked if there is agreement to delete the af~rementioned sentence and insert languago which states if a , utility acts as a developer, the Subdivision Regulations would apply, to which the Commissioners concurred. Mr. Connolly, Lakewood resident, explained that whon he moved there about 1-1/2 yoars ago, it was not very c1e~r as to who controlled the .ewer in that area, although he was led to belhve thðt the sewer was provided by the City of Naplos. He said one of the things th~t concerns people in his area is that what is boing olfered today 8eems to bo an opportunity to creato loopholes~ Ho Bðid he did not see any Page 21 80~K 069 PAW: 870 .,- . \ i¡ I .' . " ....,--g.~....>...,,---~- It .,. \ ~ . , -t ... ," ').' , . " '" ·1 . " \ ~ _...:-.__ _____ _ -L--.-:::... _ _ __ ____'_ _-- -- - - - ~~_..i._--.- July 19, 19f12 ~ 069 PALES1i. . reason for changing the wording in the draft, particularly as it relate. to protoctlng the cltiz.ns of his ar... Chairman wi.er observed that the simpliost and strongo.t documents aro the .hortest and that ho does not think it is necessary to stat. something ..v.ral ti.... HO said that no one, including the Commissioner., Is trying to do' anything for the residents of the Glados except to try and .erye them in the best way possible. Commi..loner Wen.el .oved, .econded by Comml.sloner Brown and' carried unanimously, that Page 3 be tentatively approved with wordln9: , to be devi.ed that would protect the Interests of a .traight utility, i a. .ugge.ted by the County ^ttorney. Mr. Borzon referred to ^rtlcle 2 on Pago 3, the third line statiQ9 -take up or expand the system- and said that the phrase -within the franchl.. areaw should be inserted following the word -syst.m-. Commi..ioner Wenzel .oved, seconded by commis.ioner pistor and carried unani.ously, that that phrase be In..rted In the draft. Mr. Berzon said that ...ttorney pickworth had expressed the opinio~' I that, at the end of ^rticle 2, Page 4, a provision should be edded that the County may order the construction of additional faciities when it . deems so necessary. t ¡ ~ Chðirman Wimer responded to Mr. ~erzon's point by stating that he would prefer the proviously .tated verbage, that if a franchisee doe. Tape '5 not keep up with the roquirements of the aroa, then he violate. his franchis. and may lose it. Mr. Clark said that the provi.ion i. another blank ch.ck. He noted that there are area. of .afequard. built. into the Franchise A9r.ement, adding that to add a provi.ion whereby the County arbitrarily can direct that something can be done, when it " ,a90 22 ", ~ . \'.. I(, If --- ----- --~- - --- --'-- -- ---------------:-1a I F';¡' II!!i:D · __ . ,', ,:f! t ".._.~'~.m_...~"",·..m.·~·.'o__ ----- - - --- - ---- -. - ...- ~'uly 1~, 1c)~" s. not nece..ary or appropriate in the develop~r'. viow, would force the developer to go Into court burrtoned hy th~t ønntonce, to which ho had etreed voluntarily when he accepted that franchlsft. Mr. Clark ..Id that addln; .uch a provi.ion is an unreasonable sontenco which would exP9.o the franchi.. holder to untold, unknown, and undeterminable ~1.k. Chair~.n Wimer asked If thðro is crlter!a r~gardlng when It S. . reaaonable for a franchise holder to sorvlco an area, to which Mr. Berson stated that the criterl. would ba8icðlly be centered around the need of the area and the ability to satisfy that nftod and to keep a ..all amount of additional r..erve in order to not incur a largo Inv.stment. Re.pondinq to Chairman WI~er, Mr. Berzon .aid that It would be appropriate, if a developør did not moet that criteria, to end . . the franchise, addinq that his previous .tftt.~ent was par.phr..lnq Mr. fickworth's comments to him and that Mr. pickworth intends to send vr'ttei).i commenU to the Board regard ing the: subject. ", .Chairman Wimer asked how the draft should be phrased to void the franchise if the franchise. fails to fulfill the requirements of a franchise and service an area when it should be serviced, to which Mr. Barzon said that language could be devised that says that the franchis.e is obligated to serve all the existinq units as well as so~e additional nwmber of units to take care of any known development within 12 or 18 month., In order to onsure the new units receive the service and Sndlscriminate expansion of tho plant 18 not permitted at a cost to all the existing usere. Chairman wimer said that the dlr~ctlon, by consensue of the Board, has b..n given to simply state that in e~t8ting area. what the crSteria viii be, adding that he felt sure the nngineera could formulate that eriteria end that the attorneYR can read it ønd agr~o to it. Re .ald PlIg. '3 ~'_.,~'... &0:)1( 089 PAL~ 611 , ' .-~, ----- ---------- - - -- - - - - - - - -.- - -!""" - - -------~ I.. " .. r .. , f¡ :.' . I, ,J." " " '/ ..",. ...-,~",._,'-- , \. " ~, ~ . ').' ,~:'" ;- '" , I, (, " '. ' " , ',,',,"'" :. \ ' L . ..' "",' ';" · "...______--..JL..--- _----,.-J- ------- -,- - ------ ---- ,I . -40 ~ quly 19, 19n:' :~:1. tObX cø PALf 673 \r'... that. part of the purpou of that would be to try lInd h"'v~ ~ \; ~' './ ! C 0 into '. . , ; . ex11t1n9 areas that need it. ~ Mr. 8erzon deferrod to M~. ~lckworth'a commcnta to hl~ thðt he would Uko .language, which he would provldo, in80rtccJ ,.,t the cnd of 1.rtlcle" on Pðgo 4, stating that thl't County hðB tho ri(Ji;t t:> Jerend any claim with an attorney of Ita own choosing, add!r:') t~1..,t ;,0 could not explain the reasons for that provipion and was m~rcll rclðt!ng the 1D088198 to the Board. Coml"lissloner Wenzel ..'Iid tho County currcntly has that right, to which Chairman Wimer said it seems to him that language is in the wrong place. Mr. Saunders said tnnt In pðragraph 9. ~ Page 5, there is a Hold Harmless ~grccment which nocd~ to be expanded , and that, In his opinion, he would be ablo to do thðt In ordnr to take~ 'I f care of any claim and that would give the county tha rl(J~,t to obtnln its own counsol. Mr. Ðerzon agroed. ...... Recessod 12:00 Noon - Recunvenod 1140 P.M., with Deputy Clerk Kenyon replacing Deputy Clerk Gklnner. Commissioner Brown was abscnt during the afternoon session······ Commissioner Wenzel stated that two different pðrtlc~ ðrc being dealt with, one a utility company and one ð developer, ðddlng that if the problem was resolved Individually, thero may not bo ð5 much conflict. Mr. Nichols stated that he felt that everyone 15 In total un180n a8 to what will occur from hereon after. Chairman Wimer stated that he has a concern as to why the Board i. 901n9 throuqh this exorcise th\s date, adding that In May.thè Boar~ I directod that everybody qet togother and draft a frðnch1se agreement and proposed boundary aroa.. He stated that he undorøtood that this doc~ent was received by the attornoys within the last week. ::50;., ~;: : "Peg- 24 ,tv'~" Î ...~. '\1-- -- -,:"" - - -- - - - - - - - - - - - - -- -- - - - - -~-:-.;.... --~;,;;.._.- , " ;': .;:,\:, . ," '''';'¡ ~ ~.. _ f\1';", ........,.. ~ ~ :;)t" . ...... ' ~,t·.;,." l1l./ , -:.SC ,'to \ .....t-;f. -r: "'-....,..----- - ' .------ - ----- - - -- -- ---- - - - - -- - - - -- - - - - - - - - - - --- . , July 19, 19A2 "r. NIchols atltted that on, July 12, 1982, thn attorneys cðme to the c~plo~ to pick up the document, addIng that he undcrBtanða Chalra.n Wimer'. concern. Ho stated that the only chnnce of roceivinq .an agreed upon franchi.e i8 for the Board to dIrect tho i>tn!! rcgðrdInq I "hat. has to be doni. " ~ .,. ChalrJllen, Wimer aUted thðt he thought tha t the Stð r r hod al ready be.n directed rogarding thia matter. "r. Berzon stated that on May 25, 1982, the Board dlrcctrð tho Steff to prepare a draft of tho franchise to be brought b~ck to the Board on the July 13 meoting, addIng thðt he did not hove the scrvice. of the County Attorney avaihble to him at'the time. He ntotcd' that the Board was the Unst one to receive the franchIao ac¡r;.cmcnt with. the intention that the Board review it and at that point set up a workshop, if necessary_ ne noted that at tho meeting of July 13, the eonr6 did sot a date tor a workshop for all parties concerned. Chairman Wimer stated that, with pormisslon of the Board, he "anted a memo sent to every Staff member nnd department of tho County Indicating that any time there Is to be a subject work~hop that othor people are involved in and need to have imput in, those meetings wIll be helð by the Staff first, agreeing upon all areas that aro possible 80 that when the matter reachos the Boord, there wIll only b~ specific points that have not been agreed upon. He stated that thero are two choices, one b~ing that the o~ercise . of goin~ through the document line by 1ino can be continued or there .\ can be á meeting with Mr. Ber%on and tho Attorney to establish a . document _ "r. NIchols atatod that on September 25, 19R1, ho mði1~d to the County ...ttorney and Mr. Borzon ð propoøod franchise agreement, eddinq Page 25 t'r). \ï\ M~K 089 fALt' 674- ..~', . .~-' -- -------:- - - -- - - - - ~ -,-- -- -- ---- - -r-r--- - _....~,. . f . . ; t' \11 I' '. , ,J".' f·W ., ' ',.', ...- . t' , , , '. ' 1 :'I' . . '.... : r,',' ; ,'r. '1\ (t, , . I :'¡~)' . .'}:.~' . ,~~.: ;..;\~ i1h ,"'" .t~~> "1;~~' 'J2iX. . . . . ~_.__.w·_,,·,·.,··_·,··~~__,,___ , It , .. . i' ,:;\ . . I , 'i' . 1< . .. ... \'; .. i.' f'·· . _.~ . i.:.:.....-- __~- -- --'- -- _.- ":"'-"7- -- - -'_":"- - ------ -..:..- -- -----;- ; ~(~\OlÞ.Qe! ~~¡¡P ra.pon.. until D....bør of J:::11::.:9:: roqu"t.d a ~ootin9' at which time he w~s told th.t tho proposed fr~nchlao aqreomont WðS not acceptable. Chairmon ~imer stated that perhaps an indopendent consultant should be obtained to draft up a frnnchlse agreement. Mr. Crouch stated th~t Chairman Wimer's suggestion may c~rvo one ~ .¡ purpo.e'if thero "ro d1fferencos of opinion, which .would be to sit down and, articulating the differonces, in order to minimize the discUDs10nn before the Board, addln9 that ho would favor such rather than continuing thin dato. Mr. Nichols stated thðt on February 3, 19R1, tho Commission voted and directed the Glades to apply for a frnnchlse, adding that he has been 90in9 through this exorcise for l~ montho end still docs not have a draft of ð franchise ogrcemont to say whether ho wants it or not. _ Chairman wimer stated that the Bonrd would try one morc time to see how It goes, but if thero ccnnot bo some type of Ð consensus on a franchise to regulate utilitios, he will osk the Board for a motion to hire an indepcndent consultant. Commissioner Kruse questioned if the document wns drnwn up by d,:'! County Attorney or by Staff, to which Mr. ~erzon replied tho ~ocument waS drawn up by him as thore waB no County ...ttornoy on boord at the time. He atated that, on ~ay 25, 19A2, ho was directed to drðW up the document which was the last meeting of the formor 'County ...ttorney, and' . to bring it back to the Board on July 13, 19A2. Ao stated that it va. his understanding that at that timo, thoro would bo directIons to have con8ultationø with the people involved and then a worksho'p sessIon'. Chairman Wimer atðtcd that between the time the former County I i .R,} f : "t~'1 ji. ~. . I ~. \ . . . ' , ~ Þ,:. I , . ,'" I . ' t i ~ ," f!'!!!!I 'if . ¡ .._..___".._.. " 'f' · . '..'. Attornoy, Mr. pickworth, left and the noW County Attorn~y, Mr. PlIqo 2~ ~ ----....,-....---.--.-...-- .:... - .- - - - - - - - .- - - - - - - - - - - - - -- - .- - - - - - - -- - - - - -- - .- " ,., ., .~'!I ,; ,..... .' . July 1~" If)I\, SL\undcrø, nrrivl'd, y'f\n Cuyler, ,thn ntHl1l1t:'IOt County M.tornpy, W:IS ',appolntod as "'cting County ...ttorncy. Chairman Wimer stat~d that thoy would continue with tho agreement, " ' :to ~lch Mr. Nichola atatod that on Pa~o ~, raraqr~phs 4 and 6 app.ar to be tho um., adding that ho prefers Paragraph 4 to Fo. lie auted that in Paraq:aph 3 and 5 on Pago 4, thoro I. ~ common problem with them, adding th^t even the County cnn build ð sower plbnt without applying to DER for a permit. He stateð that paragraph 3 rr.quires p~rmlttln9 at the County level and paragraph 5 requiros relocation of lines upon demand of the County. lie reported that if m:n Bays you cannot movo a line, then you cannot move it, also adding that if DER Bay. you cannot construct the systc~ In a difforent fas~ion, then you havo to do what PER states. He stated th~t in paragraph 3 it should state that commencement of construction cnnnot begin until DER ipproval Is' obtained. He reported tt.at any ðctions that .He requ1red under , , these two paragraphs have to be approved by DER. HO said that in Paragraph 5 he would liko to havo some typo of languago stating that ~ other than to remove or rclocato, thoy could construct some other facility by acceptable means. Chairman wimer stated th~t there is no pro~lcm per ae over the things that DER haa jurisðiction over, adding that if DER has no jurisdiction, the County rulos apply. County ^ttorney Saunders stated that he could word the ðqreement so that whore Dr.R dooa havo Btðn~ðrds, thos~ standðrds will ðpply and whore they do not havo cortain regulatory standards, tho County will develop standards which will apply. Chairman Wimer directed tho attornoY5 to g~t toqothe~ to work out the ,wording on rar~grapha 3 and 5 ~nd l~t ~r. ~~rzon r~vi~w it, and to Paqe 27 P" ,,,rl &OOK 0 G9 PA~t: 6"16 '.. i I I I ! í i I I I I .' ___.___ __ _ __ __ _ _ _ ____ __ _ _ _ __ - - __ -r-- - ----...:...--. I . \ I ~ If ' ~ .t- ',.' ,I. \ ' ,: ',c\i; 'f .... . ~ · [¡ "Ii ~t: ". ::t~'~ :\ ¡.,; ,~ ~ ... .....,,~~"'----..,-~..-._.._~.._- ,¡ ~. Ij "I' ' ~. '~I~:'" ,1) -:; t, r' I" " , L;..· ".. '. '...' :', ---------- - ---------------_..&.._----------~ 1 !! . ~OOX 969 rAL~fr17 July 19, 1982 , .co~bine Paragraphs 4 and 6, including the restoration of privðte rOAds, .etc. aa well as public roads, etc. on Page 4. " t . Mr. Carroll etated that In Paragraph 5 on Page 4, 30 day. should " . be chanq.,ð to 90 days After proper permits are granted, to whic,h the Board concurred. Mr. Vega stated that in Parðgraph 3, tho word -determined- should be .~pproved. and also in the samo par~graph tho last line should read -appropriate state agencios prior to commencement of construction- rather than to the issuance of any permit. , , Commissioner WQnzel stated that th~ only word necessary would be 1 to insert the word -and county· prior to the word ·agencies- to which " . Mr. Cnrroll statod that the lðst line in paragraph 5 should ,read , the Board concurrod. -county and private roads- and not ·public road-, to which the Bodrd concurred. Commissioner Wenzel moved', soconded by Commissioner ICrUS8 and, , carried 4/0, (commis.ioner Brown absent), that Page 4 be approved with' the aboye reterenced changes. Mr. Nichols stated that ·he would like to have Page 5, paragraph 7, changed to 20 days inat~ad ot 10 days, to which the Board concurred. Mr. Nichols stated that on Paragraph B, Pago 5, the SIO,OOO cash bond required to bo on deposit at all times Is not needed. He stateð that paraq~aph .9, Page S, is a hold hnrmleøs clause which 18 very broad. He reported that Paragraph 10, Page 5, has nothing to do with a sewer agreement, edding that paragraph 11, Page 5, 1_ already covered in ~ore d~tail by paragraph 2. t Co~i..ioner Wens.l ~ov.d, .econdeð by Co~~i..loner pi.tor and . carrled'4/0, (Commi..loner Brown absent), that Paragraph 7 be changed . , I'ðqe 28 " , , ~ , . <;:\. ". 3~i '/~i; ,'; ·r '. . ""',: __=.,,-..^"''''.~..~.~..o.._._..~'~.. .~~_,_ _'''''...__._._.. .___." --------- - --- -~- ,'Tu 1 Y 1 9, 19 n? to read 20 day., that paragraph 8 be changed to a $10,000 bond and all coata incurred by the County will be rccupcratad and the bond and tho Bond1n9:co~pany are to be approved by tho County, that paragraph 9 will delete the inðividual ~embers of tho Board of County Commiøatonera and sub.tltute officers, agent. and employee. harmlo.a from any liability for 811 acta other than acta of negligence of the County, that 'aragraph 10 be deleted, that Paragraph 11 bo deleted as Pðr~grðph 2 state. the aame thing and that paragraph l2 be reworked regarding the wording concerning the -as built- drawings. Mr. Nichols stated that paragraph 14, Page ~, will not apply to ~any op.rations as many only have JUBt sewor plðnts, adding that the water and sewer should be soparated. 110 repor tcd that in Pðragraph 15 waste and sewprage should be deleted as wator cannot be 'furnished for fire control if you have just a scwerage franchise. Chairman wimer stated that paragraph 15 could be reworded as -The franchiseo shall, etc. regarding a wator franchiso. t i M~. Crouch statod that tho geographic area to be assigned to each franchisee would help Bolvn the problcm in pðrqraph 14, Page ~. Mr. Spade stated that he would like par~qraph 17 to read that if there is a franchise, the County Commission will protect somoone against anothor developcr putting in a sewer plant within someono else'. area. Mr. Saunders statod thðt all that is noo~ed is rewording of paragraph 17 making a rostatement of an exiøtinq law which i. that the I County Commission will take all action nccoss~ry to enforce this particular agreement. Commi..ioner Wenzel moved, seconded by Commissioner pistor and carried 4/0, (Commissioner Brown absent), that paragraph 14 i. to be p"ge '9 ea &O:1~ OB9 PALt: 618 "' , ! .' .j :0r' .J.. . , ., ,t ;"! ¡ I ¡ : . ( I ¡ I __ _ _ _ _ _ _..,- _ _ _ _ - - - - - - - - -- - -.,..... -- - --.":'"" - ---r -- --- ---~~, T-- .: · . ;: .,!. YS'"J , ' . I )i ¡,' . - h , . " -I ._-'"-=--"~-..--~,'---~.~ , ,.'- I ,t Ij I ' ',¡ ,;';' -t J. :i¡ ,,' " . ': ¡,. : ' ¡. ,t .' .. ' ¡J-i¿':' ,. '1, C", , ' " ' " ' tir..;.;.;';" --- - -'- - -~--:; - - -- ---- -....:----------...;:..--~-~- --"- July 19, 19R2 ~OÓ( 069 PAt~ 679 reworded in order to .eparate vater and .ewerage, that para9raph 1S .hould, have water ~nd .ewerege deleted and reworded, and that Paragraph ? be revorded. Mr. Nichola stated that in PIHDgraphs 18 And 19 t~ere are ,8 lot of problems, adding that he felt that the utility rato consultant tr~~ the county and his utility rato consultant could sit down and discus8 this matter to be reworked, adding that tho revision or review should be left to the oxports. Commissioner Wenzel ~oved, seconded by Commissioner Pistor, and" carried 4/0, (Commis.loner Brown abscnt), that paragraphs 18 end 19, Page. 7,8, and 9, be rev lowed by the rate consultants in relation to the draft and get together with the Utility companies to work out the proper wording. Mr. Nichols stated that ho hðs a problom with the wording of: Paragraph 22, PAge 10, regarding a pðy-b~ck agree~ent. " Aftar discussion regardinq a pðy-beck, Chairman Wimer stated that tho Intont of ,the paraqraph was very unclear, adding that this pl'ly-back agreement should be covered under the rate making. Mr. Borzon stated that the intent i8 that the utility will not onter into a private agreement with one of thoso uses to give them a special rate, to which Chairman Wimer direct~d should be reworded .to ,aar such. Mr. Nichols stated in Paragraph 25, the word ·written- should be .. inserted prior to the word complaint.s. \ Mr. Berzon stated that ~r. pickworth had indicated to hl~ that In' p.ragr~ph 23, there should be some indication as to whero the books, , . , records .nd account. ere loceted and the hour~, etc. Còmm1.sloner Wen.el moved, seconðed by Commissioner pi.tor and '¡..J Pag. 10, .'\1-------- , ~ I --.... ,J, f,.. ~:' ;J"~~ "{~~?:";, ~V'$:; -........ --- - --------- --- ---.---.........,.------- . " ~ 1 - - ,..' , f'........~, ., .' .' --............".-,."""---...---,..-.-- " . ,. 11 ---------------------------------------- . . July l~, 1902 carried 4/0, (Com~la.ioner Brown absont), that paragraph 22, Page 10; t be revorded, that para9raph 23, ahould 91ve location, houra, etC. for. t the in.pectlon of the booka~ record. and account., and that paragraph: . , 25 ahould have the word '-written- insorted prior to the word co~plllnt. Mr. Berzon stated that in paregraph 27, Page 11, the word -iø- .hould be deleted and the words -when such Is- should be In.ortcd~ He .tated that on paragraph 28, there should be 8omo wording regard1n9 making provisions for I hftaring and a due process, adding that In Paragraph 30 there should be additional langungo stating In essence that the ecceptance of the franchise constitutos an agroement by the utility to excludo from any future purchase prico, tho original cost or the value of all contributed assets including contributions In aid of construction. Mr. Nichols stat.d that he disagreed with raragraph 30 If the ed~1t,io"al language Is t,o be added. Ho reported that with Mr. Berzon's language the systems buy-out clause would be zoro. Mr. Berzon stated that a contributed assot should not bo considered part of the rAto baae or the purchnRo pric~ when selling, adding that most utility companies havo this clauso in their agr.ellent.. I Chairman wl~er stated that the rate consultants should also review , ., pa r ~g ra rh 30. COII~i.sioner Wenzel moved, .econded by Commissioner pi.tor and carried 4/0, (Com~18sion.r Brown absent), that the word -is- be deleted In paragraph 27, Page 11, and the words ·when .uch ia- bo in.erted, that Paragraph 28 be reworked, and that paregraph 30 be turned over to the rate conaultant. e' ...... R.eesa 3140 P.M. - Roconvoned 3150 P.~. ...... Paq e 31 ..' \.. '....'~.... , I .. &OOK 089 PA&t 680 .. ! .' .i I .'. ", " . ~'~,~:,:..¡¡. ~~~~~ I <11~~'~' __..,........----- - - -.,.-. - - ---,..- - -r --....---;- --r-=--\-·-----..·~ . .~.... " ',:.'I ¡..!I,.;:..f . " '!' II "..-,.....;. . . . .. .' - ,. "'í~:·J·l .' I ,"'j')\'!t¡: , ~ " "'~:.¿" . I ·:.~/fr,,,;1 -"'.i þ~:t, .~~ ·~'a/~:1..~ ::;.:"..,-, ~.__.<." -'.~-~...~,~......,.,--,~ ~ i 'q I. \! :.- ,I . ..' ... ,- " ,( ,.. ' ,. . \ . ~, R' I .,..1 .. \.,' :-: ·.1 ," .' -~,.. ; --------...... - -'- - ~ -- -...- - - - - -- - - - -- - -- -- -------- .~,:Ii . Ii, July \9, 19A2 Mot' 069 P"~f 681 Mr. Nichols stated that Page 12, pnragrðph 32, item B 1. th~ SArnO topic that Is In Par~9raph 1. Chairman Wimer stated th^t the conditions botween Paragraph 32, ite. b~~and Paragraph 1 needed to be incorporated and reworked. County Attorney 5aunders stated thðt the words ·may bo· in paragraph 32, item c, should be deletod. Mr. Nichols stated that in Paragraph 32, item c, etates a central .y.tG~, adding that ~here is no c~ntral system, further noting that the whole paragraph needs reworking bocause connecting to ð centrel system· that do.. not exist Is erroneouS. Chairman Wimer stated that the word ·County· should be inserted 'I instead of the word ·central- in par~grðph 32, Itom c. Af~er a l.ngt~y discussion, Chairman Wimer stated that it is agreed that the principle and the intent of Paragraph 32, Item c, i. that whenever the County is dosirous of purchasing a utility system, the County will givo the owner a ono ycar notice before purchasing the system, adding that this pðr~qrðph should be roworked to indicate such. Mr. Nichola stated that Pðragraph 3~ will have some application to aome utilitios and not to others. COJlmhs1oner Wenzel IIoved, seconded by COlllnhsioner Kru.e and c.rrled~ 4/0, (Commissioner Brown absent), that Page 12 be approved with the above-referenced paragraph. to be reworked. Mr. Nichols atated that paragrnph 35 should indicate when the hearings will be held and in what time limits, to which Chairman Wi~.r stated that this item could be discussed during the meoting of the rate conøu~tant.. Mr. Saunders stated that in pðrogrðph ~5, he has ð problem with , IIlIge 32 ; ,.- --------~- -------- --- ---- - -------------~ ,..' t ' . · ,~', : ~ L:~ : V":,-c'n ~ ~' ~; , " ' ..: t-;" "'-<>"..;.....-.,-...~._---~-" ,,,,".._--".-..-.-,_.~.. --------.--.- ..1. .,...',,' _____~ _~-----------------~~--í---~----~ ,.' ',' ..1 I .~ 1_ i','~ J, í1 ,~~ \. ~;f;., .\ July 19, 19R2 the hoarlnq officer ~akln9 a recommondðlion to the Board, adding that he think. th3t the Board ahould make a detormination as to who hears rat. ca.... Ch.lr~an Wimer stated that parftgraph 35 should be changed to read t~.t the Board of County Com~1S8ionQrs shall hoar and roceive te.timony and evidence in all mattors pertaining to the adjustment of rate., etc., .s it is the Board's responsibility. Mr. Berzon stated that in pargraph 3S he would like the statement conclrnir.g -Hearings ahall be conducted under tho provisions of Chapter . of Florida ...dminiøtrative Codo or Florida Statutes", should be . I ì ~ I del ted, to which tho Board concurrod. " Mr. Nichols stated that paragraph 3~ Is surplus and should be 1 deletod; to whIch there was a goneral consensus. , I Mr~ Nlchol~ stated that paragrðph 37 Is th~ ordinance he hAS ! already filed suIt on alleging that It Is unconstitutional, which refers back to the Subdivision Rcgulatlonß, etc, to which Chairman Wimer atated that this itom is to bo separated regarding Ordinance 76-71 and the Subdivision Rogulations. Mr. Bcrzon stated that he is working on tho assumption that ordinance 76-71 will bo uphold in court, adding that if It is not upheld In court, the ordinanco would not be applicable. I Commissioner Wenzol stated that tho Attornoy should rewrite paragraph 37 to meet the needs of both parties. ! . ^ttorney Saundors stated that ~ way to ~nke the valid laws cloar that Collier County is referring to, is by adding a p~r~gr~ph ~hat I statos that the laws of tho ~tate of Florida and tho lðws of Collier County ere a part of this contract, adding that if there Is a conflict betwoen this franchise And an existing Colli or County ordinðnce, then Page 33 M~~ 069 fALt: S82, " ,,__....~;,...~ .·"m..'......,_^··