DATE:	November 17, 2009
TO:	Office of Commission Clerk (Cole)
FROM:	Division of Economic Regulation (Brady, Walden) Office of the General Counsel (Klancke)
RE:	Docket No. 080183-WU – Joint application for approval of transfer of Tamiami Village Water Company, Inc.'s water system and Certificate No. 388-W in Lee County to Ni Florida, LLC. County: Lee
AGENDA:	12/01/09 – Regular Agenda – Interested Persons May Participate
COMMISSIONERS ASSIGNED:			All Commissioners
PREHEARING OFFICER:			Edgar
CRITICAL DATES:			None
SPECIAL INSTRUCTIONS:			None
FILE NAME AND LOCATION:			S:\PSC\ECR\WP\080183.RCM.DOC

 

Case Background

Tamiami Village Water Company, Inc. (Tamiami or Utility) is a Class C utility providing water service to the mobile home park community of Tamiami Village and two adjacent shopping centers in Lee County.  Tamiami purchases bulk water services from Lee County, which it delivers to its customers through a distribution system owned and operated by Tamiami.  North Fort Myers Utility, Inc. provides wastewater service.  Tamiami Utility Company (TUC), the original utility owner, was granted Certificate No. 388-W in 1983.[1]  Subsequently, there were two transfers[2] prior to the transfer in this docket, and an amendment.[3]

 

On March 31, 2008, Tamiami and Ni Florida, LLC (Ni Florida) filed a joint application in this docket for the transfer of Tamiami’s water distribution facilities, territory, and certificate to Ni Florida.  The Commission approved the transfer in Order No. PSC-08-0621-FOF-WU, issued September 24, 2008.  By Order No. PSC-09-0260-PAA-WU, issued April 27, 2009, the Commission established rate base for the Tamiami water system.

In the order approving the transfer in this docket, the Commission required that Ni Florida file an updated territory map showing its authorized service territory and the location of existing customers.  After reviewing Ni Florida’s updated territory map, staff discovered a number of discrepancies between the territory reflected on the map and the legal descriptions attached to Order Nos. 11734, 21421, and PSC-95-1441-FOF-WU .

This recommendation addresses territory corrections to prior Commission orders.  The Commission has jurisdiction to consider this matter pursuant to Section 367.045, Florida Statutes.

 

Discussion of Issues

Issue 1: 

 Should the corrected legal description shown in Attachment A be approved as the territory that Ni Florida, LLC is authorized to serve?

Recommendation: 

 Yes.  The corrected legal description shown in Attachment A should be approved as the territory that Ni Florida is authorized to serve.  The resulting order should serve as Certificate No. 388-W and should be retained by Ni Florida.  (Brady, Walden, Klancke)

Staff Analysis: 

 In Order No. PSC-08-0621-FOF-WU , the Commission required that Ni Florida file an updated territory map showing its authorized service territory and the location of existing customers.  The final version of the map was filed on July 9, 2009.  Staff compared Ni Florida’s updated territory map with prior Commission orders and docket materials.  The discrepancies between Ni Florida’s service territory, as shown on Ni Florida’s map, and service territory reflected in Commission orders are the result of a series of incorrect legal descriptions attached to Order Nos. 11734, 21421, and PSC-95-1441-FOF-WU.

In the filing for original certificates in Docket No. 820183-WS (MC), the applicant, TUC, provided a metes and bounds legal description for the territory it was seeking to serve.  (Exhibit 1)  The legal description, map, and docket material indicate that the territory being requested was for the platted mobile home park known as Leisure Village, now known as Tamiami Village.  There were no indications that staff had any problems with the metes and bounds description provided by the applicant.  Nonetheless, attached to the resulting Order No. 11734 was a township, range, and section (TRS) legal description.  (Exhibit 2)  It is not clear from reviewing the docket file whether staff drafted the TRS legal description on its own or requested that TUC provide such description.  In either event, the TRS legal description attached to Order No. 11734 does not represent the metes and bounds legal description for the Leisure Village Mobile Home Park as originally requested by TUC.  Instead, it describes an unrelated area to the southeast of the mobile home park.

In Order No. 21421, the Commission approved the transfer of the utility facilities from TUC to Tamiami Village Utility, Inc. (TVUI).  This was the first of three transfers, including this docket.  The legal description attached to Order No. 21421 reflected the land under TVUI’s  treatment facilities, instead of TVUI’s approved service territory.  (Exhibit 3)  Rule 25-30.037(1)(q), Florida Administrative Code, requires evidence that the buyer has ownership of the land under the utility’s treatment plants.  It appears that the error in the legal description occurred when staff mistakenly used the legal description for the land under the treatment plants instead of the legal description for the service territory.

In Order No. 22449, the Commission approved an extension of territory for TVUI to serve two commercial lots adjacent to Tamiami Village.  The legal description attached to Order No. 22449 correctly reflects the requested territory extension for the two commercial lots.  (Exhibit 4)

In Order No. PSC-95-1441-FOF-WU, the Commission approved the transfer of water service from TVUI to Tamiami.  However, the legal description attached to that order used the extension of territory provided in Order No. 22449 along with the legal description provided for in the prior transfer in Order No. 21421 which, as noted above, incorrectly reflected the land under the treatment facilities instead of the utility’s service territory.  (Exhibit 5)

During staff’s review of the transfer from Tamiami to Ni Florida in this docket, there appeared to be a discrepancy between the legal descriptions contained in the prior Commission orders and the territory being served.  However, a detailed territory map was not available to resolve the issue.  Ni Florida asked that it be allowed a period of time to have the territory map reconstructed.  In the meantime, staff relied on the territory authorized in prior orders with the requirements that Ni Florida provide a detailed territory map and that the docket remain open until this map could be reviewed.

Based upon the review of the territory map and additional information provided by Ni Florida, staff has verified that Ni Florida is currently serving the Leisure Village Mobile Home Park and the commercial properties added in Order No. 22449.  Staff believes that this was the territory that the Commission intended to be authorized for the service territory.  Attachment A is a corrected legal description which includes the Leisure Village Mobile Home Park and the commercial properties added in Order No. 22449.  Staff recommends that the Commission approve Attachment A as the authorized service territory for Ni Florida and that the resulting order serve as Ni Florida’s water certificate.

Since Ni Florida is already serving the territory in Attachment A, staff believes customers will only be confused by a notice of a corrected legal description.  Additionally, staff does not believe that a show cause issue is warranted because Ni Florida, and its predecessors, were only serving the areas included in its original certificate application and the subsequent extension of territory in Order No. 22449.  There does not appear to have been any attempt on the part of Ni Florida, or its predecessors, to deliberately serve territory different from that authorized by Commission orders.  Rather, the errors appear to be the result of staff’s failure to correctly identify and resolve problems with the legal descriptions in prior dockets.

In conclusion, staff recommends that the corrected legal description shown in Attachment A should be approved as the territory that Ni Florida, LLC is authorized to serve.  The resulting order should serve as Certificate No. 388-W and should be retained by the Ni Florida. 

Issue 2:  Should this docket be closed?

Recommendation: 

 Yes.  Since no further actions are required, the docket should be closed.  (Klancke)

Staff Analysis: 

 Since no further actions are required, the docket should be closed.

Ni Florida, LLC

Corrected Water Service Territory

Lee County

 

Township 43 South, Range 24 East

 

Section 27

 

Parcel One:  A tract or parcel of land in the Southeast 1/4 of the Southwest 1/4 of Section 27, Township 43 South, Range 24 East, which is described as follows:  From the Southwest corner of said fraction of Section; thence N.0º19'10"W. along the West line of said Section for 25.0 feet; thence S.89º53'40"E. along the North right of way (25.0 feet from center line) of Littleton Road and parallel with the South line of said Section for 1,877.70 feet to an intersection with a Southerly prolongation of a line parallel with and 290.00 feet (as measured on a perpendicular) from the Westerly line (S.05º56'20W.) of the Tamiami Trail (U.S. 41, State Road No. 45) and the POINT OF BEGINNING; thence N.05º56'20"E. along said prolongation for 348.19 feet; thence S.84º03'40"E. for 290.00 feet; thence S.05º56'20"W. along the Westerly right-of-way (100.00 feet from center line) of said Tamiami Trail for 208.00 feet to a point of curvature of a curve to the left (radius 5,829.58 feet, Delta Angle 01º05'08"); thence Southwesterly along the arc of said curve for 110.46 feet; thence N.89º53'40"W. along said North right of way of Littleton Road for 292.55 feet to the POINT OF BEGINNING. Containing 2.220 acres more or less.

 

Parcel Two:  A tract or parcel of land in the Southeast 1/4 of the Southwest 1/4 of Section 27, Township 43 South, Range 24 East, which is described as follows:  From the Southwest corner of said fraction of Section; thence N.0°19'10"W. along the West line of said Section for 25.0 feet; thence S.89°53'40"E. along the North right-of-way (25.0 feet from center line) of Littleton Road and parallel with the South line of said Section for 1,877.70 feet to an intersection with a Southerly prolongation of a line parallel with and 290.00 feet (as measured on a perpendicular) from the Westerly right of way (S.05°56'20"W.) of the Tamiami Trail (U.S. 41, State Road 45); thence N.05°56'20"E. along said prolongation for 348.19 feet to the POINT OF BEGINNING; thence continue N.05°56'20"E. along said prolongation for 371.45 feet; thence S.89°53'40"E. along the Southerly line of an 80.00 feet wide parcel II land as recorded in O.R.B. 1687, page 1106 for 291.50 feet; thence S.05°56'20"W. along said Westerly right-of-way (100.00 feet from center line) of said Tamiami Trail for 401.00 feet; thence N.84°03'40"W. for 290.00 feet to the POINT OF BEGINNING. Containing 2.572 acres more or less.

Parcel Three:  A tract or parcel of land in the Southwest 1/4 of Section 27, Township 43 South, Range 24 East, which is described as follows:  From the Southwest corner of said fraction of Section; thence N.0°19'10"W. along the West line of said Section for 25.0 feet; thence S.89°53'40"E. along the North right-of-way (25.0 feet from center line) of Littleton Road and parallel with the South line of said Section for 1,877.70 feet to an intersection with a Southerly prolongation of a line parallel with and 290.00 feet (as measured on a perpendicular) from the Westerly right of way (S.05°56'20"W.) of the Tamiami Trail (U.S. 41, State Road 45); thence N.05°56'20"E. along said prolongation for 800.41 feet to the POINT OF BEGINNING;  thence continue N.05°56'20"E. along said prolongation for 1,206.73 feet to the northerly boundary of lands formerly conveyed to Windmill Villages of America; thence run N.89°34'20"E. along said northerly boundary for 286.66 feet to the intersection with the curved westerly line (100.00 feet from center line) of the Tamiami Trail (State Road No. 45); thence run southwesterly along said westerly line, along the arc of a curve to the right of radius 5,597.58 feet (chord bearing S.04°42'50"W.) for 239.22 feet to a point of tangency; thence run S.05°56'20"W. for 969.83 feet; thence run N.89°53'40"W. for 291.50 feet to the POINT OF BEGINNING. Containing 7.922 acres more or less.

 

Township 43 South, Range 24 East

 

Sections 27 and 28

 

A tract or parcel of land in Sections 27 and 28, Township 43 South, Range 24 East, encompassing Leesure Village, a Mobile Home Park, as recorded in Condominium Plat Book 3, pages 60 through 76 of the Lee County, Florida Public Records, which is described as follows: 

 

Commencing at the Northwest corner of the Southwest 1/4 of the Southwest 1/4 of Section 27, Township 43 South, Range 24 East; run S.89°53'50"E. 25.00 feet; thence N.0°19'10"W. 172.35 feet to the POINT OF BEGINNING, the last course being 25 feet perpendicular and parallel to the West line of said Section; thence continue N.0°19'10"W. 2,144.47 feet, said course being 25 feet to the West line of Section 27; thence N.89°33'50"E. 575.0 feet, thence S.0°18'50"E. 169.78 feet, thence N.89°41'30"E. 600.0 feet; thence S.0°19'10"E. 243.90 feet; thence N.89°33'50"E. 1,129.35 feet to a point in the curve concave to the Southwest, being the Westerly right-of-way line of U.S. 41; thence following the curvature thereof in the Southeasterly direction following along the Westerly right-of-way line of U.S. 41, said curve having a central angle of 12°35’40", a radius of 5,597.58 feet, a chord of 1,227.95 feet, and arc of 1,229.99 feet, and a distance of 1,229.99 feet to a point lying on said curve, on Westerly right-of-way line of U.S. 41; thence S.89°33'50"W. 899.33 feet; thence S.05°55'50"W. 518.77 feet to a point.; thence N.89°53'40"W. 1,401.01 feet to the POINT OF BEGINNING.

 

Also

 

The Northeast 1/4 of the Southeast 1/4 of said Section 28, Township 43 South, Range 24 East.  Subject to a 100 foot easement along the Easterly line of said Property.

FLORIDA PUBLIC SERVICE COMMISSION

Authorizes

 

Ni Florida, LLC

Pursuant to

Certificate Number 388-W

 

to provide water service in Lee County in accordance with the provisions of Chapter 367, Florida Statutes, and the Rules, Regulations, and Orders of this Commission in the territory described by the Orders of this Commission.  This authorization shall remain in force and effect until superseded, suspended, cancelled or revoked by Order of this Commission.

Order Number                        Date Issued    Docket Number         Filing Type

11734                                      03/18/83          820183-WS (MC)       Original Certificate

21421                                      06/20/89          890127-WS                 Transfer of Certificate

21421-A                                  08/09/89          890127-WS                 Correction

22449                                      01/23/90          891148-WS                 Amendment

PSC-95-1441-FOF-WU         11/28/95          950015-WU                Transfer

PSC-08-0621-FOF-WU         09/24/08          080183-WU                Transfer

*                                              *                      080183-WU                Territory Correction

*Order Numbers and dates to be provided at time of issuance.

Exhibit 1

Tamiami Utility Company

Original Water and Wastewater Territory

Lee County, Florida

(as requested in Docket No. 820183-WS)

 

Township 43 South, Range 24 East

Sections 27 and 28

 

Tract or Parcel of land in the West 1/2 of Section 27, and the Northeast 1/4 of the Southeast 1/4 of Section 28, Township 43 South, Range 24 East, Lee County, Florida and in Leesure Village, a Mobile Home Park as recorded in Condominium Plat Book 3, pages 60 thru 76 of the Lee County, Florida Public Records which is described as follows:  From the Southwest corner of the Northwest 1/4 of the Southwest 1/4 of said Section; thence North 89˚48’29” East along the South line of said fraction for 25.0 feet; thence North 0˚19’10” West parallel with the West line of said Section for 172.45 feet to the Point of Beginning; thenece [sic] continue North 0˚19’10” West for 2,144.48 feet; thence North 89˚33’50” East for 575.62 feet; thence South 0˚18’50” East for 169.78 feet; thence North 89˚41’30” East for 600 feet; thence South 0˚19’10” East for 243.90 feet; thence North 89˚33’50” East for 1,129.39 feet to a curve concave westerly, having a radius of 5,597.58 feet and a chord bearing of South 02˚48’30” East; thence Southeasterly along the arc of said curve and the Westerly right of way (100 feet from centerline) of U. S. 41 (Tamiami Trail) for 1,230.81 feet; thence South 89˚34’20” West for 900.34 feet; thence South 05˚56’20” West for 518.77 feet; thence North 89˚53’40” West for 1,401.48 feet to the Point of Beginning.

 

Also together with the Northeast 1/4 of the Southeast 1/4 of said Section 28, Township 43 South, Range 24 East.  Subject to a 100 Ft. wide Florida Power & Light transmission line easement over the Easterly 100 Ft. and a 25 Ft. wide Florida Department of Transportation drainage easement over the Easterly 25.0 feet; containing 91.88 acres more or less.  Subject to other easements, restrictions and reservations of record.

 

Exhibit 2

Tamiami Utility Company

Original Water and Wastewater Territory

Lee County, Florida

(as authorized in Order No. 11734)

 

Township 43 South, Range 24 East  (corrected for scrivener errors)

 

Section 27

The South 900 feet of the West 1400 feet of the East 1/2 of said Section 27 and the South 1/2 of said Section 27, West of U. S. Highway 45, less the South 500 feet of the West 1700 feet, and the South 800 feet of the East 600 feet of the West 2300 feet thereof:

 

Section 28

The Northeast 1/4 of the Southeast 1/4 of said Section 28.

 

Exhibit 3

 

Tamiami Village Utility Company, Inc.

Water and Wastewater Territory

Lee County, Florida

as authorized in Order No. 21421

 

Township 43 South, Range 24 East

Section 27

 

Tract or Parcel of land in the South Half (S 1/2) of the Northwest Quarter (NW 1/4) and in the North Half (N 1/2) of the Southwest Quarter (SW 1/4) of Section 27, Township 43 South, Range 24 East, Lee County, Florida and in Leesure Village, a Mobile Home Park as recorded in Condominium Plat Book 3, pages 60 through 76 of the Lee County, Florida Public Records which is described as follows:  From the Southwest corner of said North Half (N 1/2) of the Southwest Quarters (SW 1/4) ; thence North 89 degrees 48 minutes 29 seconds East along the South line of said fraction for 25.0 feet; thence North 0 degrees 19 minutes 10 seconds West parallel with the West line of said Section for 1932.92 feet to the Point of Beginning; thence continue North 0 degrees 19 minutes 10 seconds West for 378.77 feet; thence North 89 degrees 33 minutes 50 seconds East for 575.62 feet; thence South 0 degrees 18 minutes 50 seconds East for 169.78 feet; thence South 0 degrees 26 minutes 10 seconds East for 209.19 feet; thence South 89 degrees 33 minutes 50 seconds West for 576.03 feet to the Point of Beginning.

 

Subject to easements, restrictions and reservation of record.  Bearings based upon Plat of Tamiami Village, Unit 1, Plat Book 33, page 100, of the Public Records of Lee County, Florida.

Exhibit 4

Tamiami Village Utility Company, Inc.

Water and Wastewater Territory

Lee County, Florida

as authorized in Order No. 22449

 

 

Sun Bank/S.W. Florida, N.A.

 

Township 43 South, Range 24 East

Section 27

A tract or parcel of land in the Southeast 1/4 of the Southwest 1/4 of Section 27, Township 43 South, Range 24 East, Lee County, Florida, which is described as follows:

From the Southwest corner of said fraction of Section; thence N.0˚19'10"W. along the West line of said Section for 25.0 feet; thence S.89˚53'40"E. along the North right of way (25.0 feet from center line) of Littleton Road and parallel with the South line of said Section for 1877.70 feet to an intersection with a Southerly prolongation of a line parallel with and 290.00 feet (as measured on a perpendicular) from the Westerly line (S.05˚56'20"W.) of the Tamiami Trail (U.S. 41, State Road No. 45) and the Point of Beginning.  Thence N.05˚56'20"E. along said prolongation for 348.19 feet; thence S.84˚03'40"E. for 290.00 feet; thence S.05˚56'20"W. along the Westerly right of way (100.00 feet from center line) of said Tamiami Trail for 208.00 feet to a point of curvature of a curve to the left (radius 5829.58 feet, Delta Angle 01˚05'08"); thence Southwesterly along the arc of said curve for 110.46 feet; thence N.89˚53'40"W. along said North right of way of Littleton Road for 292.55 feet to the Point of Beginning.  Containing 2.220 acres more or less.

Tamiami Plaza

 

Township 43 South, Range 24 East

Section 27

A tract or parcel of land in the Southeast 1/4 of the Southwest 1/4 of Section 27, Township 43 South, Range 24 East, Lee County, Florida, which is described as follows:  From the Southwest corner of said fraction of Section; thence N.0˚19'10"W. along the West line of Said Section for 25.0 feet; thence S.89˚53'40"E. along the North right of way (25.0 feet from center line) of Littleton Road and parallel with the South line of said Section for 1877.70 feet to an intersection with a Southerly prolongation of a line parallel with and 290.00 feet (as measured on a perpendicular) from the Westerly right of way (S.05˚56'20"W.) of the Tamiami Trail (U.S. 41, State Road No. 45); thence N.05˚56'20"E. along said prolongation for 348.19 feet to the Point of Beginning.  Thence continue N.05˚56'20"E. along said prolongation for 371.45 feet; thence S.89˚53'40"E. along the Southerly line of an 80.00 feet wide parcel II land as recorded in O.R.B. 1687, page 1106 for 291.50 feet; thence S.05˚56'20"W. along said Westerly right of way (100 feet from center line) of said Tamiami Trail for 401.08 feet; thence N.89˚03'40"W. for 290.00 feet to the Point of Beginning.  Containing 2.572 acres more or less.

Exhibit 5

Tamiami Village Water Company, Inc.

Water and Wastewater Territory

Lee County, Florida

as authorized in Order No. PSC-95-1441-FOF-WS

and reauthorized in Order No. PSC-08-0621-FOF-WU

 

Township 43 South, Range 24 East

Section 27

The following described lands located in portions of Section 27, Township 43 S, Range 24 E, Lee County, Florida:  Tract or Parcel of land in the South Half (S 1/2) of the Northwest Quarter (NW 1/4) and in the North Half (N 1/2) of the Southwest Quarter (SW 1/4) of Section 27, Township 43 South, Range 24 East, Lee County, Florida and in Leesure Village, a Mobile Home Park as recorded in Condominium Plat Book 3, pages 60 through 76 of the Lee County, Florida Public Records which is described as follows: From the Southwest corner of said North Half (N 1/2) of the Southwest Quarters (SW 1/4); thence North 89 degrees 48 minutes 29 seconds East along the South line of said fraction for 25.0 feet; thence North 0 degrees 19 minutes 10 seconds West parallel with the West line of said Section for 1937.92 feet to the Point of Beginning; thence continue North 0 degrees 19 minutes 10 seconds West for 378.77 feet; thence North 89 degrees 33 minutes 50 seconds East for 575.62 feet; thence South 0 degrees 18 minutes 50 seconds East for 169.78 feet; thence South 0 degrees 26 minutes 10 seconds East for 209.19 feet; thence South 89 degrees 33 minutes 50 seconds West for 576.03 feet to the Point of Beginning.  Subject to easements, restrictions and reservations of record.

 

A tract or parcel of land in the Southeast 1/4 of the Southwest 1/4 of Section 27, Township 43 South, Range 24 East, Lee County Florida, which is described as follows:  From the Southwest corner of said fraction of Section; thence N.0˚19'10"W. along the West line of said Section for 25.0 feet; thence S. 89˚53'40" E. along the North right of way (25.0 feet from center line) of Littleton Road and parallel with the South line of said Section for 1877.70 feet to an intersection with a Southerly prolongation of a line parallel with and 290.00 feet (as measured on a perpendicular) from the Westerly line (S.05˚56'20"W.) of the Tamiami Trail (U.S. 41, State Road No. 45) and the Point of Beginning.  Thence N. 05˚56'20"E. along said prolongation for 348.19 feet; thence S. 84˚03'40"E. for 290.00 feet; thence S.05˚56'20"W. along the Westerly right of way (100.00 feet from center line) of said Tamiami Trail for 208.00 feet to a point of curvature of a curve to the left (radius 5829.58 feet, Delta Angle 01˚05'08"); thence Southwesterly along the arc of said curve for 110.46 feet; thence N.89˚53'40"W. along said North right of way of Littleton Road for 292.55 feet to the Point of Beginning.  Containing 2.220 acres more or less.

 

A tract or parcel of land in the Southeast 1/4 of the Southwest 1/4 of Section 27, Township 43 South, Range 24 East, Lee County, Florida, which is described as follows:  From the Southwest corner of said fraction of Section; thence N.0˚19'10"W. along the West line of said Section for 25.0 feet; thence S.89˚53'40"E. along the North right of way (25.0 feet from center line) of Littleton Road and parallel with the South line of said Section for 1877.70 feet to an intersection with a Southerly prolongation of a line parallel with and 290.00 feet (as measured on a perpendicular) from the Westerly right of way (S.05˚56'20"W.) of the Tamiami Trail (U.S. 41, State Road 45); thence N.05˚56'20"E. along said prolongation for 348.19 feet to the Point of Beginning.  Thence continue N.05˚56'20"E. along said prolongation for 371.45 feet; thence S.89˚53'40"E. along the Southerly line of an 80.00 feet wide parcel II land as recorded in O.R.B. 1687, page 1106 for 291.50 feet; thence S.05˚56'20"W. along said Westerly right of way (100.00 feet from the center line) of said Tamiami Trail for 401.00 feet; thence N.84˚03'40"W. for 290.00 feet to the Point of Beginning.  Containing 2.572 acres more or less.