ORDINANCE NO. BL2010-731

ORDINANCE NO. BL2010-731

An ordinance appropriating an amount not to exceed $200,000 from the unappropriated fund balance of the General Fund of the General Services District to the Department of Water and Sewerage Services for the purpose of providing a limited economic recovery benefit to customers that were directed to cease using public drinking water for plant nursery stock and washing cars during the period of mandatory water conservation following the May 2010 flooding of the K.R. Harrington water treatment plant.

WHEREAS, the weather events of May 1 through May 3, 2010, caused extensive flood damage throughout the area of The Metropolitan Government of Nashville and Davidson County (Metropolitan Government); and

WHEREAS, the K.R. Harrington water treatment plant, which is owned and operated by the Metropolitan Government, sustained significant damage during the flood and was out of operation for approximately one month, greatly reducing the amount of drinking water available within the area of the Metropolitan Government; and

WHEREAS, the Commissioner of the Tennessee Department of Environment and Conservation (TDEC), issued an Emergency Order on May 4, 2010, (the “Order”) regarding the emergency associated with the Middle Tennessee drinking water supply. The Order was issued pursuant to provisions of the Safe Water Drinking Act, T.C.A. § 68-221-701, et seq. The Act states that in times of emergency, the Commissioner may, without prior notice or a hearing, issue an order requiring such action as the Commissioner deems necessary under the circumstances. T.C.A. § 68-221-712(b). The Order was effective on the operation of the Metropolitan Government’s Department of Water and Sewerage Services (“Department”); and

WHEREAS, the Order directed the Department, until further notice, “to the maximum extent practical, eliminate all non-essential water use. Essential water uses are those that are necessary for human health and hygiene”; and

WHEREAS, in conformance with the TDEC Order, and in order to ensure that the Metropolitan Government’s drinking water supply remained sufficient for basic health and hygiene needs while the K.R. Harrington plant was out of service, the Department implemented water conservation measures, including directing businesses to cease using drinking water from the public system for washing cars for approximately one month and directing businesses to cease using drinking water from the public system for plant nursery stock for approximately one week (“Directed Shut-offs”); and

WHEREAS, Section 2.01 of the Charter of the Metropolitan Government gives the Metropolitan Council the authority to pass all ordinances necessary for the health, convenience, safety and general welfare of the inhabitants; and
WHEREAS, while the Department’s response to the water shortage resulting from the flooding and damage to the K.R. Harrington facility was reasonable and justifiable, the Metropolitan Council recognizes that the necessary water conservation measures resulted in customers whose primary business relied on drinking water from the public system for plant nursery stock or car washing bearing a disproportionate share of economic loss.

NOW, THEREFORE, BE IT ENACTED BY THE COUNCIL OF THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY:

Section 1. Notwithstanding any provision in Title 15 of the Metropolitan Code to the contrary, the Department is hereby authorized and directed to provide an economic recovery benefit to customers that suffered a disproportionate economic loss due to the restriction on the use of drinking water from the public system to water plant nursery stock and wash cars as directed by the Department after the May 2010 flood (“Eligible Customers”). An amount not to exceed $200,000 is hereby appropriated to the Department from the unappropriated fund balance of the General Fund of the General Services District for the purpose of providing the benefits contemplated by this ordinance. Such benefits shall conform to the following standards:
A. Benefits shall be in the form of monthly credits applied to water and sewer bills of Eligible Customers;
B. No benefit shall be provided to the extent a loss was covered by a policy of insurance;
C. No benefit shall be provided to the extent the Eligible Customer is eligible for assistance from another source, collectively Primary Financial Assistance, including grants or loans from:
1) The Federal Emergency Management Agency (FEMA) or
2) The Small Business Administration (SBA) or
3) Other public or private entities.
D. Eligible Customers seeking benefits under this ordinance shall submit the proper documentation evidencing the requested payment of insurance claims, the submission of applications for Primary Financial Assistance, and the disposition of those claims and applications for assistance.
E. Eligible Customers shall provide documentation of their losses attributable to the Directed Shut-offs as the Director of the Department may reasonably require. Customers claiming losses of nursery stock shall provide documentation regarding the number and type(s) of nursery stock damaged or destroyed and the replacement cost for such stock. Car washes shall, at a minimum, include the following documentation for each place of business for which a benefit is sought:
1) All Revenues derived from washing vehicles from May 1, 2009, through May 31, 2009.
2) All Revenues derived from washing vehicles from May 1, 2010, through May 31, 2010
3) All Expenses resulting from washing vehicles from May 1, 2009, through May 31, 2009.
4) All Expenses resulting from washing vehicles from May 1, 2010, through May 31, 2010
5) Total number of employees from May 1, 2009, through May 31, 2009 and total amount paid to employees for that period.
6) Total number of employees from May 1, 2010, through May 31, 2010 and total amount paid to employees for that period.

Section 2. Limitations:
A. The total benefit afforded to any Eligible Customer shall not exceed that Eligible Customer’s net loss for all car wash locations within the area of the Metropolitan Government.
B. In no event shall the total benefit to any Eligible Customer exceed $30,000 for all locations within the area of the Metropolitan Government. If the credit is greater than $5,000, it shall be applied as a total monthly credit of $5,000 per Eligible Customer for up to 6 months, as necessary.
C. The Department shall not consider or provide a benefit for Eligible Customer claims as contemplated by this ordinance unless asserted in writing not later than September 15, 2010 and documented to the satisfaction of the Director not later than October 15, 2010.

Section 3. These benefits shall be a one-time, remedial measure to assist with the economic recovery of Eligible Customers resulting from the disproportionate impact of the May 2010 devastation of one of the Department’s water treatment facilities caused by the flooding event. This ordinance shall not be used as evidence of any negligence or wrong doing by the Metropolitan Government or as justification for the payment of funds for any other past, present, or future events.

Section 4. The Department of Finance and the Department of Law shall review and approve each benefit as to the availability of funds and as to form and legality, respectively. The Department shall submit a report to the Metropolitan Council by December 31, 2010, of each benefit provided under this Ordinance, and the name and location of each Eligible Customer receiving a benefit.

Section 5. Amendments to this Ordinance shall be approved by a resolution adopted by the Metropolitan Council receiving twenty-one (21) affirmative votes.

Section 6. This Ordinance shall take effect from and after its passage, the welfare of The Metropolitan Government of Nashville and Davidson County requiring it.

Sponsored by: Emily Evans, Charlie Tygard, Sam Coleman, Vivian Wilhoite, Jim Gotto, Erica Gilmore

Amendment No. 1
To
Ordinance No. BL2010-731

Madam President:

I move to amendment Ordinance No. BL2010-731 by adding the following new Section 5 and renumbering the remaining sections accordingly:

“Section 5. As a condition precedent to any benefit provided pursuant to this Ordinance, every Eligible Customer shall sign a document prepared by the Department of Law agreeing not to file a lawsuit against the Metropolitan Government as a result of the Department’s directive to cease using drinking water from the public system for washing cars and watering plant nursery stock after the May 2010 flood. Such document shall release the Metropolitan Government from any and all claims and demands of whatever nature, actions and causes of action, damages, costs, lost business revenues, and expenses resulting from the Department’s directive.”

LEGISLATIVE HISTORY
Introduced:	July 20, 2010
Passed First Reading:	July 20, 2010
Referred to:	Budget & Finance Committee Public Works Committee
Deferred:	August 3, 2010
Deferred Indefinitely:	August 17, 2010
Put back on Agenda:	January 26, 2011
Amendment No. 1:	February 1, 2011
Amendment No. 2:	February 1, 2011
Passed Second Reading:	February 1, 2011
Passed Third Reading:	February 15, 2011
Approved:	February 22, 2011
By: