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Agenda 03/19/2003 S COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS AGENDA March 19, 9:00 a.m. SPECIAL MEETING NOTICE: ALL PERSONS WISHING TO SPEAK ON ANY AGENDA ITEM MUST REGISTER PRIOR TO SPEAKING. SPEAKERS MUST REGISTER WITH THE COUNTY MANAGER PRIOR TO THE PRESENTATION OF THE AGENDA ITEM TO BE ADDRESSED. COLLIER COUNTY ORDINANCE NO. 99-22 REQUIRES THAT ALL LOBBYISTS SHALL, BEFORE ENGAGING IN ANY LOBBYING ACTIVITIES (INCLUDING, BUT NOT LIMITED TO, ADDRESSING THE BOARD OF COUNTY COMMISSIONERS), REGISTER WITH THE CLERK TO THE BOARD AT THE BOARD MINUTES AND RECORDS DEPARTMENT. REQUESTS TO ADDRESS THE BOARD ON SUBJECTS WHICH ARE NOT ON THIS AGENDA MUST BE SUBMITTED IN WRITING WITH EXPLANATION TO THE COUNTY MANAGER AT LEAST 13 DAYS PRIOR TO THE DATE OF THE MEETING AND WILL BE HEARD UNDER "PUBLIC PETITIONS". ANY PERSON WHO DECIDES TO APPEAL A DECISION OF THIS BOARD WILL NEED A RECORD OF THE PROCEEDINGS PERTAINING THERETO, AND THEREFORE MAY NEED TO ENSURE THAT A VERBATIM RECORD OF THE PROCEEDINGS IS MADE, WHICH RECORD INCLUDES THE TESTIMONY AND EVIDENCE UPON WHICH THE APPEAL IS TO BE BASED. ALL REGISTERED PUBLIC SPEAKERS WILL BE LIMITED TO FIVE (5) MINUTES UNLESS THE TIME IS ADJUSTED BY THE CHAIRMAN. IF YOU ARE A PERSON WITH A DISABILITY WHO NEEDS ANY ACCOMMODATION IN ORDER TO PARTICIPATE IN THIS PROCEEDING, YOU ARE ENTITLED, AT NO COST TO YOU, TO THE PROVISION OF CERTAIN ASSISTANCE. PLEASE CONTACT THE COLLIER COUNTY FACILITIES MANAGEMENT DEPARTMENT LOCATED AT 3301 EAST Page 1 TAMIAMI TRAIL, NAPLES, FLORIDA, 34112, (239) 774-8380; ASSISTED LISTENING DEVICES FOR THE HEARING IMPAIRED ARE AVAILABLE IN THE COUNTY COMMISSIONERS' OFFICE. 1. INVOCATION AND PLEDGE OF ALLEGIANCE .. THE BOARD TO CONSIDER MATTERS/RESOLUTION REGARDING PROPOSED LEGISLATION IN THE CURRENT LEGISLATIVE SESSION RELATING TO WATER & SEWER UTILITIES AND TO DETERMINE ACTIONS, IF ANY, TO BE TAKEN, INCLUDING BUT NOT LIMITED TO, USE OF OUTSIDE COUNSEL, LOBBYIST(S) FOR COLLIER COUNTY AND DIRECTION BY THE BOARD. ANY OTHER MATTERS PERTAINING TO THIS LEGISLATIVE CYCLE. Governor sent letter to BCC regarding a 3/25 meeting to be held in Tallahassee with the Governor regarding south golden Gate Estates Lands. 3. ADJOURN Page 2 EXECUTIVE SUMMARY ADOPT A RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS TO SUPPORT ENACTMENT INTO LAW OF FLORIDA SENATE BILL NUMBER 140 AND IDENTICAL FLORIDA HOUSE BILL NUMBER 963, WHICH PROPOSED BILLS AMEND CHAPTER 163, FLORIDA STATUTES, TO PROVIDE THAT NO GOVERNMENTAL ENTITY CREATED PURSUANT TO CHAPTER 163, FLORIDA STATUTES, CAN ACQUIRE INVESTOR-OWNED WATER OR WASTEWATER UTILITIES WITHOUT COMPLIANCE WITH SPECIFIED REQUIREMENTS THAT PROVIDE ACCOUNTABILITY, DUE DILIGENCE, FINDINGS BY A DISINTERESTED GOVERNMENTAL ENTITY THAT EACH SUCH PROPOSED ACQUISITION IS IN THE PUBLIC INTEREST, AND THAT EACH "HOST GOVERNMENT", INCLUDING COLLIER COUNTY, MUST APPROVE EACH SUCH PROPOSED ACQUISITION WITH REGARD TO EACH SUCH UTILITY SYSTEM LOCATED WITHIN THE BOUNDARIES OF THE HOST GOVERNMENT; ALSO TO AUTHORIZE LOBBYING EFFORTS IN TALLAHASSEE AS SPECIFIED HEREIN OBJECTIVE: To authorize lobbying by Collier County's approved lobbyist with regard to water/wastewater utility issues, Michael Twomey (in Tallahassee), to support enactment into Florida law the currently proposed amendments to Chapter 163, Florida Statutes, which proposed amendments are to add critically important safeguards to protect interests of a water or wastewater utility's customers in the event an entity created pursuant to Chapter 163, Florida Statutes, proposes to acquire a water or wastewater utility, or both. CONSIDERATIONS: Chapter 163, Florida Statutes, allows certain described governmental entities to be formed by interlocal agreement for the purpose of acquiring specified investor-owned utilities, including water and wastewater systems. In 2002, pursuant to Chapter 163, Florida Statutes, the City of Milton and the City of Gulf Breeze entered into an interlocal agreement to form an entity called "The Florida Water Services Authority" (the "Authority") to purchase approximately one hundred and fifty-two (152) water and/or wastewater systems that are located in twenty-six (26) Florida counties. The seller of these 152 systems is the Florida Water Services Corporation ("FWS"). Two of these 152 utility systems owned by FWS are located in Collier County. The City of Milton and the City of Gulf Breeze are located in Santa Rosa County (in Florida's panhandle). Neither of those two Cities is served by any FWS system. Many counties (including Collier County), municipalities (including the City of Marco Island), and civic associations served by FWS have many serious concerns regarding this proposed sales transaction because it is believed that the Authority would not be accountable to the customers of these systems, or be accountable to any county, to any other municipality, or to the Florida Public Commission, with regard to customer service rates, charges, service availability, or any other regulatory oversight as currently exercised by the Florida Public Service Commission or by agencies of counties that have elected to be outside of the PSC's regulatory jurisdiction, one of which is Collier County. Several lawsuits have been filed in various courts by local governments, by customer groups, and by the Florida's Public Service Cormnission. Presently, the proposed sale cannot proceed unless and until approved by the Florida Public Service Commission due to issuance of a permanent injunction by the Florida Circuit Court in Leon County (Tallahassee). Notwithstanding press releases recently issued by FWS that it is no longer pursuing the sale to the Authority, FWS is appealing issuance of this injunction. Florida Senators Argenziano and Cowin are sponsoring Florida Senate Bills number 140 (and Florida Senate Bill number 998), which Bills amend Chapter 163, Florida Statutes, to close existing loopholes in Chapter 163, Florida Statutes, and to establish critically needed additional safeguards. An identical bill has been filed in the House (House Bill 963). Staff is convinced that Chapter 163, Florida Statutes, must be amended to protect interests of customers of water and wastewater systems that can be jeopardized under the currently existing provisions in Chapter 163, Florida Statutes. Staff believe that provisions need to be added to Chapter 163, Florida Statutes, to require accountability fi.om every water and/or wastewater entity (or both) formed pursuant to Chapter 163, including mandating meaningful due diligence procedures and to require that a neutral governmental entity or agency make formal findings of fact and conclusions of law that each such proposed acquisition pursuant to Chapter 163, Florida Statutes, is in the public interest. Staff believes that FWS and the Authority are lobbying to have Chapter 163, Florida Statutes, amended to eliminate all existing judicial and administrative impediments to the proposed sale, and to legalize the proposed sales transaction from FWS to the Authority. Staff believes that any such amendments to Chapter 163, Florida Statutes will be extremely detrimental to customers of these 152 utility systems. Staff believes that Collier County should take all reasonable and immediate actions to prevent amendments to Chapter 163, Florida Statutes, or any other general law of Florida, that retain the existing loopholes in Chapter 163, Florida Statutes, or that weaken any interests of any customers of any water or wastewater system that may be acquired by any entity created pursuant to Chapter 163, Florida Statutes, including, especially, the two FWS systems in Collier County. Staff recommends the immediate utilization of lobbying services of Michael Twomey (in Tallahassee) to support enactment into Florida Law of Senate Bill number 140, Florida Senate Bill number 998, and identical House Bill number 963 and to counteract legislative efforts supported by FWS and/or the Authority to enact into Florida law any amendment to any Florida Statute that threaten any interest of any of the customers of the two FWS systems located in Collier County. FISCAL IMPACT: Collier County's registered Lobbyist for water and wastewater issues is Michael Twomey, of Tallahassee. Mike Twomey's contract with Collier County provides that the County pay Mr. Twomey $150 per hour for services rendered, plus documented out-of-pocket expenses. Although it is difficult to predict the amount of effort that will be required to accomplish the County's desired results as specified herein, it is anticipated that the costs of the contemplated lobbying efforts will not exceed $15,000. Because of a lawsuit filed by FWS against the County and the Clerk regarding alleged improper use of Utility Regulatory Assessment Fees to fund costs of litigation and other efforts to retain the County's regulatory jurisdiction over the water and wastewater utility systems that Collier County regulates, it is recommend that for the time being the County's lobbying efforts be funded from the county's general fund. Staff expects that the county will eventually be able to reimburse the general fund from the Utility Regulation Trust Fund. GROWTH MANAGEMENT IMPACT: Approval of these lobbying efforts will have no impact on growth management. RECOMMENDATION: That the Board adopt the attached Resolution to support enactment of Florida Senate Bill number 140 and identical Florida House Bill number 963 into Florida's general law, and enactment of associated budget amendments if any, and authorize lobbying efforts to defeat any proposed Florida legislation that will conflict with the goals of the County as specified herein. SUBMITTED BY: REVIEWED BY: D~, Wallace, Director Utility & Franchise Regulation Thomas C. l~almer Date: APPROVED~ A~ Date: ~:'-/?-O__~ Joseph K. Schmitt, Administrator Community Development & Environmental Services Division 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 RESOLUTION NO. 2003 - __ A RESOLUTION OF COLLIER COUNTY, FLORIDA, SUPPORTING ENACTMENT INTO LAW AMENDATORY LANGUAGE TO SECTION 163.01, FLORIDA STATUTES, AS CURRENTLY WRITTEN IN PROPOSED FLORIDA SENATE BILL NUMBER 140 AND FLORIDA HOUSE BILL NUMBER 963, WHICH RECOMMENDED BILLS PROVIDE NECESSARY ACCOUNTABILITY, DUE DILIGENCE, AND THAT PUBLIC INTEREST DETERMINATIONS BE MADE BY THE FLORIDA PUBLIC SERVICE COMMISSION REGARDING ACQUISITION OF INVESTOR-OWNED WATER AND WASTEWATER UTILITIES, AND, AS TO SUCH SYSTEMS WITHIN THE BOUNDARIES OF THE HOST GOVERNMENT, MANDATE AFFIRMATIVE CONCURRENCE OF ALL HOST GOVERNMENTAL ENTITIES PRIOR TO COMPLETION OF EACH SUCH ACQUISITION. WHEREAS, Senate Bill number 140 and House Bill number 963 are currently being proposed for enactment into law by action of the Florida Legislature; and WHEREAS, proposed amendatory text in SB140fHB963 add necessary safeguards to Chapter 163, Florida Statutes, to ensure accountability, due diligence and that prerequisite public interest determinations be made by the Florida Public Service Commission regarding proposed acquisitions of investor-owned water and wastewater utilities by every governmental entity created pursuant to Chapter 163, Florida Statutes, and also regarding such utility systems within the boundaries of the host government, requiring approval by each host governmental entity prior to effective completion of each such proposed acquisition of those systems. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA, that: The Board of County Commissioners of Collier County, Florida supports adoption into Florida law proposed Senate Bill number 140 and proposed House Bill number 963, which, if enacted, will amend Chapter 163, Florida Statutes, in a manner acceptable to Collier County to protect customers of the subject water and wastewater systems. The Board of County Commissioners of Collier County, Florida, requests that its local Legislative Delegation actively support enactment of proposed Florida Senate Bill number 140 and Florida House Bill number 963. The Florida Association of Counties may utilize this Resolution as it deems appropriate to support enactment of proposed Senate Bill number 140 and Florida House Bill number 963 to amend Chapter 163, Florida Statutes, to protect customers of the subject water and wastewater utility systems. THIS RESOLUTION ADOPTED after motion, second and majority vote in favor of adoption this __ day of ,2003. ATTEST: DWIGHT E. BROCK, CLERK BOARD OF COUNTY COMMISSIONERS COLLIER COUNTY, FLORIDA By: By: Deputy Clerk TOM HENNING, Chairman Approved as to form and legal sufficiency: Thomas C. Palmer Assistant County Attorney