§ 134-354. Issuance of franchise certificates; certificates of exemption.

Only the board may issue a franchise certificate to any utility. The authority has final order authority over granting exemptions from regulation.

(1)

Certificates from Florida Public Service Commission. Each utility holding a certificate from the Florida Public Service Commission (FPSC) on the effective date of the board's resolution rescinding the jurisdiction of the FPSC over the utility shall receive a franchise certificate for all service areas for which that utility then held such a certificate(s) from the FPSC, provided such utility applies for each franchise certificate by filing an application for same with the authority within 120 days of the effective date of this article. The application for such a franchise from the county shall include:

a.

A map of its existing system with planned extensions, if any, and a legal description of all area(s) for which the then effective FPSC certificate was issued;

b.

A certified copy of all orders issued by the FPSC granting the FPSC certificate to that utility;

c.

FPSC tariffs listing all FPSC approved rates and charges then in effect, all of which will remain in effect until modified as approved by the authority;

d.

A copy of all FPSC approved operating regulations and procedures of the utility then in effect, all of which shall remain in effect until modified as approved by the authority;

e.

The then current FPSC approved rate base of the utility, which shall continue to be the rate base of the utility until modification thereof is approved by the authority; and

f.

Such other minimum filing requirements as may be required by rule of the board.

(2)

Within 60 days of a utility's submission of an application pursuant to subsection (1) above, the authority shall render a decision whether such application is complete and thereupon set the official date of filing.

(3)

If the authority finds that the application is deficient for failure to satisfy all filing requirements, the authority shall return the application to the utility for revisions. The utility shall have 30 days to revise and resubmit such application to the authority, which shall have 20 days to review the revised application. These time periods may be summarily extended by the executive director of the authority for good cause.

(4)

At such time as the authority determines the utility's application satisfies all requirements of subsection (1) above, the authority shall issue a preliminary order within 30 days of the official date of filing to recommend that the board issue one or more franchise certificates to the utility.

(5)

Within 30 days of the issuance of the authority's preliminary order, the board, without a public hearing, may issue its order on the application, which may issue franchise certificate(s) to the utility.

(6)

After 180 from the effective date of this article, unless extended by final order of the authority, it shall be unlawful for any utility under the regulation jurisdiction of this article to provide any utility service within the unincorporated area of the county without either a franchise certificate having been granted to that utility by the board, or based upon an active application to acquire a franchise certificate for the respective service then pending before the county.

(7)

New utility. For the purposes of this article, "new utility" means any utility applying for a franchise from the county except pursuant to subsection (1), above, "grandfathering.

a.

One hundred twenty days after the effective date of this article, no person shall build, install, maintain, operate, or continue to operate any utility, including bulk water utility, in any unincorporated area of the county unless the board has granted that utility a franchise certificate for that service, or unless the utility, upon application for same, has been formally determined by the authority as being exempt from regulation under this article.

b.

Each applicant for issuance of a franchise certificate for a new utility shall:

1.

Provide information required by rule of the board and/or the authority which may included a detailed inquiry into the ability of the applicant to provide service, the planned service territory, all facilities involved, the need for service in the planned service territory involved, and the existence or nonexistence of that utility service from other sources within nearby geographical proximity to the service territory applied for;

2.

File with the authority schedules showing all proposed rates, fees, classifications and charges for service of every kind to be furnished by it; also all rules, regulations, and written contracts relating thereto;

3.

Submit an affidavit that the applicant has caused notice of its intention to file an application for the new franchise, which notice must be delivered by mail or other actual delivery to the authority, and to such other persons and in such other manner as may be prescribed by rule of the board. Such notice shall be given at least 20 days prior to the filing of such application;

4.

If required by the executive director of the authority, or by the authority, file a certified copy of its certificate of incorporation, if any; an audited financial statement; an inventory of assets; and other information such that the authority can determine whether or not the applicant is qualified to be issued a franchise certificate by the board. The board may require the applicant to post a bond, satisfactory to the board in form and sureties, to guarantee compliance with any conditions imposed by the board for issuance of the franchise(s);

5.

The application shall be signed by the person who will be the holder of the franchise.

c.

Review the contents of each application for franchise certificates:

1.

The authority may issue a preliminary order approving a franchise certificate in whole or in part, with or without modifications, or deny any franchise certificate. No utility shall be granted greater authority than that requested in the application and any amendments thereto. The authority shall not issue a preliminary order to grant a franchise certificate for a proposed system or for the extension of an existing system which will be in competition with, or a duplication of, any other system or portion of a system, unless it first determines that such other system or portion thereof is not adequate to meet the reasonable needs of the service area and all other service commitments, if any, outside of the service area, or that the system is unable to, or that its principals refuse to or have neglected to, provide adequate utility services.

2.

If the authority does not receive written objection to such an application within 20 days following the official date of filing of the application, the authority may issue a preliminary order on the application without a public hearing thereon.

3.

If, within 20 days following the official date of filing of such an application, the authority receives from a utility, or from any consumer that would be substantially affected by the requested certification, a written objection requesting a public hearing, the authority may conduct a public hearing, generally within 20 days from actual receipt of the written objection, unless the hearing is extended by the authority or its executive director.

4.

A public hearing held pursuant to subsection c.3., above, shall result in a preliminary order issued by the authority. Within 60 days of the issuance of such preliminary order, the board should review the matter and may hear legal arguments concerning the authority's preliminary order. Based upon such review and any such legal arguments presented, the board may confirm, confirm as modified by the board, deny the authority's preliminary order, or remand the matter back to the authority or to a hearing examiner, or otherwise deal with the matter.

5.

The board may deny the application or require amendment to any certificate on the ground that the such service will violate the established local comprehensive developed by the county pursuant to Florida Statutes, currently section 163.3161, and following sections.

6.

In reviewing the application, the authority shall consider the following:

(i)

The applicant's apparent ability to have or acquire sufficient resources to build, install and operate the proposed utility;

(ii)

The apparent ability of the applicant to provide the proposed service(s) to the territory with the proposed facilities involved, the need for service in the territory involved, and the existence or nonexistence of such utility service from other sources within geographical proximity to the territory for which the utility has applied; and

(iii)

Whether the application conflicts with the county's local comprehensive plan, including all relevant capital improvement programs adopted by the board.

7.

Each franchise certificate applied for, except those described in subsection (1) above, shall specify and acknowledge that:

(i)

Such terms and conditions as may be deemed necessary by the board to protect the public health, safety or welfare;

(ii)

Whether the franchise is for a water system, sewer system, or bulk water utility, or applicable combination thereof;

(iii)

The territory to be served by the utility. The franchise certificate for a bulk water utility may include all or part of an area covered by the franchise of a another utility. Subject to economic feasibility, the utility must serve its entire certificated area(s);

(iv)

That the franchise certificate is not any impediment to acquisition of the utility or any part thereof by the county and/or any other governmental agency, by purchase, condemnation, or otherwise;

(v)

That the county has full power and authority to grant a license or franchise to any other person or entity to construct, maintain, repair, operate, and remove lines for the transmission of water, wastewater, gas, power, television, telephone, and/or any other public utilities whatsoever, under, on, over, across, through, and/or along every public road, public highway, other public right-of-way, or public utility easement for the respective uses acquired by the county, by any other government agency, by purchase, gift, devise, dedication, prescription, or by any other means;

(vi)

That the utility shall prevent the creation of and shall not allow or suffer to continue any obstructions or any other conditions who are or may become physically dangerous to any member of the general public;

(vii)

That the utility shall repair any and all damage and/or injury to public and private streets, roads, highways, and all other tangible property caused by reason of the exercise of any privileges granted in the franchise and, at no direct or indirect cost to the county or other governmental agency, shall promptly repair all such damage or injury to all public streets, roads, highways, and other tangible property, restoring each to the conditions at least equal to the conditions that existed immediately prior to the infliction of such physical damage or injury by or on behalf of the utility;

(viii)

That the utility shall indemnify and hold harmless the county, the board and its members, the authority and its executive director, and all employees and members all of the above, from any claims, suits, and damages that may result, directly or indirectly, from any exercise of (or failure to exercise) any rights, privilege(s) and/or licenses granted or authorized by the franchise certificate;

(ix)

That in the event of widening, repairing, relocating, or reconstructing, of any public street, public road or public right-of-way, the utility shall, at no cost to the county or any other governmental agency, relocate as needed all utility lines and other tangible property of that utility;

(x)

That the issuance of the franchise certificate shall not entitle the franchisee to any consideration and shall not otherwise prevent, bar, or hinder the county and/or any other governmental agency from closing, abandoning, relocating, vacating, discontinuing, improving, or reconstructing any public street, road, or other right-of-way or easement, except those that are private;

(xi)

That the utility shall comply with all then applicable rules, regulations, and standards pertaining to such utility from all governmental agencies having jurisdiction;

(xii)

That the utility shall always maintain and keep all improvements in good repair and, subject to economic feasibility of the utility, shall provide all franchised utility services within a reasonable time to all persons requesting such service to be provided within the certificated territory;

(xiii)

That if the authority determines that it is appropriate to install fire hydrants for the purpose of combating fires, the county has the right and privilege of doing so, and may order the utility to make such connections and charge to its customers, pro rata, for labor and materials used in the installation of said fire hydrants and other appurtenances necessary for furnishing water from the respective distribution system to said fire hydrants; in such cases the charge to the utility's customers shall be the utility's actual cost for making the connections, together with a fair return on the utility's investment therein;

(xiv)

That the franchise certificate shall not be deemed to constitute a county requirement that any landowner use the utility's water, nor shall this article be construed to constitute a Collier County imposed prohibition against any landowner using well water for consumption, irrigation, recreation and/or yard maintenance;

(xv)

That franchise certificate issued by the county shall have no monetary or other value in the context of the county and/or any other governmental agency seeking to acquire the utility or any part thereof;

(xvi)

That the franchise certificate shall not be deemed to prohibit or restrict construction, operation and/or maintenance of any utility outside of the franchised service territory by the county or by any governmental agency;

(xvii)

The term of the franchise, which shall not exceed 30 years; also any provisions for renewal thereof;

(xviii)

Provisions for purchase of the utility by the county on such terms and conditions as the board shall determine to be proper to best serve the public health, safety and/or welfare;

(xix)

Provisions for revocation of the franchise certificate in the event of any violation of its terms, or of violation of this article, and/or any other logically related county ordinance, or rule of the board;

(xx)

Provisions for the reasonable time within which the utility service granted in the franchise shall be made available to the customers of the utility, including a schedule of estimated dates by which each utility service will be provided to customers; and that if no such service is provided within the time prescribed, that the franchise shall be automatically void unless the authority extends that time for good cause shown provided that an application for such an extension of time is made before expiration of the "no actual utility service" time prescribed in the franchise. The grant of a time extension will require additional conditions that the authority deems appropriate to assure the provision of adequate service within an additional reasonable time;

(xxi)

Such modifications of any provisions authorized under the preceding paragraphs as may be necessary;

(xxii)

That the system shall be approved by all appropriate governmental agencies as to design, construction, operation, capacity, maintenance, expansion, and otherwise;

(xxiii)

That the franchise may be amended at any time upon mutual consent of the parties thereto; and

(xxiv)

Additional provisions as are required from time-to-time by rule of the board.

(xxv)

Bulk water utility. A franchise for a bulk water utility may provide that the service area may include all or part of a service area of a county franchised water utility provided all provision of water in bulk within that overlapping service area shall be only to that other utility;

8.

Claims of exemption from regulation. Each person who or entity that claims an exemption from regulation (nonjurisdictional finding) by the county through application of any one or more of subparagraphs of subsection 1-2 (definition of "utility"), must file with the authority an affidavit sworn to upon, personal knowledge and signed by the affiant, who must be an authorized representative of the applicant. The affidavit must contain the name of the utility, its complete street and mailing address, and sufficient information describing the utility system upon which a determination as to the applicant's asserted exempt status can be ascertained by the authority, plus citation to the specific subparagraph of subsection 134-352, above, upon which the asserted exemption is based. Such application for declaration of exemption may be granted by final order of the authority without any public hearing thereon, but if a complaint is filed by any person or entity with standing, the authority may hold a public hearing to consider and decide the merits the application by final order. These minimum filing requirements for an exemption do not apply to any governmental agency; any governmental agency may obtain a declaration of its claimed exemption by letter request to the authority.

(Ord. No. 96-6, § 1-4, 2-27-96)