Loading...
10To: CITY OF SOUTH MIAMI OFFICE OF THE CITY MANAGER INTER-OFFICE MEMORANDUM The Honorable Mayor & Members of the City Commission South Miami bO'" ;fiH; 2001 From: Steven Alexander, City Manager Agenda Item NO.:1f) Date: January 14, 2013 SUBJECT: A Resolution authorizing the City Manager to execute an agreement, not to exceed a term of three years, with the law firm of Nabors, Giblin & Nickerson, P.A., to represent the City of South Miami during the negotiations of the franchise renewal agreement with FPL. BACKGROUND: The City entered into a franchise agreement with Florida Power and Light, (FPL), in May of 1984 for a 30-year term. The agreement granted a non-exclusive electric franchise to the utility to utilize public rights of way throughout the City in return for franchise fees. That agreement is due to expire May, 2014. EXPENSE: With the pending expiration of the franchise agreement, it is in the City's best interest to engage a law firm with the expertise and experience of negotiating franchise agreements with utility companies. The City wishes to explore all available options as it relates to the franchise agreement up and including non- renewal options. Nabors, Gilbin & Nickerson, P.A. have extensive experience with all aspects of local government including the exercise of franchise rights, the acquisition of utility systems and related complex litigation. Furthermore, the firm is currently providing similar services for the Village of Pinecrest and, is offering the same fee schedule to the City. In the event that litigation is required regarding FPL matters, their trial attorneys are prepared to assist the City Attorney in whatever manner is required at the same hourly rates. Pursuant to Florida Statues #FS 287.057 "Procurement of Commodities or Contractual Services, legal services are not subject to competitive solicitations. Therefore the City Attorney provided a referral for Commission approval. $0 (Pending negotiation activity to account no 001-1500-514-3410 with a balance of $178,706.10) Page 1 of2 SUPPORT: Resolution Engagement Letter from Nabors, Gilbin & Nickerson, P.A. Resolution #68-1 1-13382 FS #287.057 Page 2 of2 1 RESOLUTION NO.: _________ _ 2 3 A Resolution authorizing the City Manager to execute an agreement, not to 4 exceed a term of three years, with the law firm of Nabors, Giblin & Nickerson, 5 P.A. to represent the City of South Miami during the negotiations of the 6 franchise renewal agreement with FPL. 7 8 WHEREAS, the franchise agreement with Florida, Power & Light, (FPL), expires May, 9 2014; and 10 11 WHEREAS, it is in the best interest of the City to negotiate and extend the franchise 12 agreement with FPL; and l3 14 WHEREAS, the City seeks legal services that include specific expertise in the area of 15 franchise fee negotiations with utility companies; and 16 17 WHEREAS, the City charter, at Art. III, Section 5, Subsection H and Florida Statue, 18 Section 287.057 provide that competitive solicitations for legal services are not required; and 19 20 WHEREAS, the City Attorney sought a firm with expertise in the area of franchise fee 21 negotiations with utility companies and recommends the firm of Nabors, Gilbin & Nickerson, 22 P.A. to assist the City during the negotiations of the City's franchise renewal agreement with 23 FPL. 24 NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE 25 CITY OF SOUTH MIAMI, FLORIDA: 26 27 Section 1. The City Manager is authorized to execute an agreement, not to exceed a 28 term of three years, with the law firm of Nabors, Gilbin & Nickerson, P.A. for the purpose of 29 negotiating a franchise renewal agreement with FPL. A copy of the agreement is attached to 30 this resolution. 31 32 Section 2. Severability. If any section, clause, sentence, or phrase of this resolution is 33 for any reason held invalid or unconstitutional by a court of competent jurisdiction, this holding 34 shall not affect the validity of the remaining portions of this resolution. 35 36 Section 3. Effective Date. This resolution shall take effect immediately upon enactment. 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 PASSED AND APPROVED this __ day of _____ , 2013. ATIEST: CITY CLERK READ AND APPROVED AS TO FORM, LANGUAGE, LEGALITY AND EXECUTION THEREOF CITY ATIORNEY APPROVED: MAYOR COMMISSION VOTE: Mayor Stoddard: Vice Mayor Liebman: Commissioner Harris: Commissioner Newman: Commissioner Welsh: TALLAHASSEE Suite 200 1500 Mahan Drive Tallahassee, Florida 32308 (850) 224-4070 Tel (850) 224-4073 Fax FORT LAUDERDALE 208 S.E. Sixth Street Fort Lauderdale, Florida 33301 (954) 525-8000 Tel (954) 525-8331 Fax Reply to Tallahassee Mr. Thomas F. Pepe City of South Miami 1450 Madruga Avenue Suite 202 Coral Gables, FL 33146 Nabors",~ Giblin (~~'!"7 Nlckersonp.A, January 10, 2013 Via U.S. and Electronic Mail FORT MYERS Building 83, Suite 2 12731 World Plaza lane Fort Myers, Florida 33907 (239) 288-4027 Tel (239) 288-4057 Fax TAMPA Suite 1060 2502 ROCky POint Drive Tampa, Florida 33607 (813) 281-2222 Tel (813) 281-0129 Fax Re: Representation in Matters Relating to Renewal of Franchise Agreement with Florida Power & Light Company Dear Mr. Pepe: Thank you for considering the firm of Nabors, Giblin & Nickerson, P.A. ("NGN") to represent the City of South Miami ("City") in matters concerning renewal of a franchise agreement with Florida Power & Light Company ("FPL"). NGN is the preeminent Florida law firm representing local governments. We have extensive experience in all aspects of local government law including the exercise of franchise rights, the acquisition of utility systems, and complex litigation. Based upon past discussions with you and our familiarity with issues concerning FPL, we are confident in NGN's ability to assist you in matters related to the City'S electric franchise with that company. We believe that NGN is well suited to the task as we have provided similar services to other cities in the past and have experience dealing with FPL related issues which may be very similar to the issues your City will address. While our lawyers currently represent only government utilities, we possess experience Mr. Thomas Pepe January 10,2013 Page 2 representing large investor-owned utilities like FPL ("lOUs") and are able to share with you our insights into the mindset and strategic decision-making of IOU management. We possess vast experience before the Florida Public Service Commission and routinely assist our government clients in the acquisition of IOU assets. In addition, our litigation attorneys have litigated many complex issues on behalf of Florida cities and counties relating to utility issues. Additional information concerning the attorneys who will work on this matter and NGN's qualifications is provided with this letter. Please be advised that NGN is not engaged in any activity adverse to the City nor any activity which would prevent us from providing the highest quality legal representation regarding FPL related issues. As indicated above, NON represents only government clients and possesses no prior or continuing engagements that would inhibit NON in any way from engaging FPL in any court, agency or other venue. Fees for Services A. I propose to offer our services at the same hourly rates as we receive from the Village of Pinecrest for matters relating to FPL. These rates are as follows: $250 per hour for shareholders $220 per hour for associates In the event that litigation is required regarding FPL matters, our trial attorneys are prepared to assist the City Attorney in whatever manner is required at the same hourly rates. B. NON will not bill the City for attorney time in travel but would be reimbursed for actual costs and expenses incurred on behalf of the City, including long distance telephone charges, overnight delivery charges, photocopying, and other typical costs of rendering our services. Travel expenses would be reimbursed in accordance with the provisions of section 112.061, Florida Statutes. Mr. Thomas Pepe January 10,2013 Page 3 If these terms are acceptable, please sign in the space indicated below and return in the enclosed postage pre-paid envelope. Please do not hesitate to call me at (850) 320-1701 if you have any questions or would like to discuss this proposal further. We look forward to working with you. Very truly yours, William C. Garner WCG/kja Enclosures (2) Accepted by: (Sign) (Date) (Print) BIOGRAPHIES AND EXPERIENCE William C. Garner Before joining the firm, Mr. Garner served from 2005-2010 as Chief Advisor to two Commissioners at the Florida Public Service Commission, including the Chairman, providing legal, technical and policy advice on all matters coming before the Commission. Mr. Gamer was instrumental in aiding the Commissioner in rendering decisions concerning the economic regulation of investor-owned electric companies, water and wastewater companies, and natural gas distribution companies, as well as providing competitive market oversight in the telecommunications industry. As the Chairman's Chief Advisor, Mr. Garner not only provided legal and policy advice, but also acted in many respects as the agency's Chief of Staff. Mr. Garner's law and policy experience concerning Florida's public infrastructure began in 1998 when he clerked in the law firm of Rose, Sundstrom & Bentley, LLP, a finn primarily serving private water and wastewater utilities. From 1999 to 2005, Mr. Garner served as an analyst and senior attorney in several committees of the Florida House of Representatives, including the Committee on Utilities and Telecommunications, the Committee on Transportation, and the Committee on Domestic Security. The period during which Mr. Gamer served at the Florida Public Service Commission was marked by significant activity in the development of regulatory policies designed to encourage the use of altemative and renewable energy to generate electricity. For example, between 2006 and 2009, the Commission considered new rules which significantly revised the use of standard offer contracts, provided for net metering of customer-owned electric generation, and proposed a renewable energy standard to the Florida Legislature. In addition, Mr. Gamer advised the Chairman on numerous petitions of the investor-owned electric utilities requesting approval of negotiated contracts with small power producers and co-generators, as well as petitions for determination-of-need for projects with a generating capacity of75 MW or more. Since joining the firm, Mr. Gamer's public utility practice has included matters ranging from electric utility franchise issues to licensing of proposed nuclear units and the siting of associated transmission facilities. In addition, Mr. Garner provides general public utility law representation to numerous local governments, and also provides legal services related to the acquisition and divestiture of utility assets. Mr. Gamer eamed his Juris Doctor degree from the Florida State University College of Law in 2000, and has a Bachelor of Arts in Mass Communication from the University of South Florida with a minor in political science. Notable professional involvement includes serving as a faculty presenter on energy issues at the 2009 Growth Management, Energy, Climate Change & the Environment Short Course, and the 2009 Environmental Permitting Summer SchooL Mr. Gamer also participated on the National Govemor's Association Center for Best Practices 2008-2009 Policy Academy on Energy Efficiency in Buildings. Brian P. Armstrong: Before joining Nabors, Giblin & Nickerson in March, 2000, Mr. Armstrong served as senior vice-president and general counsel of Florida Water Services Corporation, Florida's largest investor- owned water and wastewater utility. Prior to his service with Florida Water, Mr. Armstrong practiced in the public utilities department of the law firm ofCunen & Dykman in New York. He is a 1984 graduate of the Georgetown University Law Center. Mr. Armstrong has practiced pub}jc utility law for twenty-five (25) years, with a focus on water and wastewater utilities for the past eighteen (18) years. Before joining NGN, Mr. Armstrong was Senior Vice-President and General Counsel of Florida Water Services Corporation. In this position, Mr. Armstrong was responsible for all utility acquisitions and sales, legal affairs, ratemaking proceedings, customer relations, communications, governmental affairs and permitting activities. During his time at Florida Water, the company's customer base grew from approximately 40,000 customers to more than 250,000 customers primarily through targeted acquisitions of water and wastewater systems from both developers and private utility owners. Mr. Annstrong has represented clients in the purchase and sale of utility systems located throughout Florida. His ten (10) years of experience representing Florida's largest private water and wastewater utility company (ending in March, 2000) provides valuable insight into the thought processes and negotiation strategies of private utility managers. Recently, Mr. Armstrong successfully negotiated the purchase of Aloha Utilities, Inc., a water and wastewater utility with a troubled past and a long history of conflict with state and local regulators as well as with its customers. Completing the transaction took the cooperation of and coordination with county commissioners, state legislators, the Florida Public Service Commission, the Department of Environmental Protection, the Southwest Florida Water Management District, the Office of Public Counsel and, perhaps most importantly, Aloha's customer base which includes approximately 17,000 customers. Mr. Annstrong has significant legal and regulatory experience in the energy and electric utility industries, having represented clients before the Florida Public Service Commission in numerous rulemaking proceedings, rate cases, and territorial disputes. In addition, Mr. Armstrong has an active practice representing local governments in the negotiation and exercise of electric utility franchise rights, and in negotiating and litigating special gas contracts on behalf of local govemments. Pertinent Work Experience Nabors, Giblin & Nickerson, P.A. (the "Firm") provides services for numerous local governments throughout the State of Florida. We have worked extensively in assisting local governments in issues relating to the acquisition and operation of a variety of utilities. We have litigated utility-related issues on behalf of our government clients and have been actively involved in the financing of numerous acquisitions, purchases and rehabilitations of utility systems including a variety of electric system financings. Most importantly, we have assisted local governments in negotiating and exercising their franchise rights against public utilities, including Florida Power & Light Company ("FPL"). Below is a partial summary of our experience assisting local governments in utility-related transactions and litigation. A. Representation in Franchise Negotiations and Enforcement of Franchise Purchase Option. Beginning in 2007, the Firm has provided legal services to the City of South Daytona in its efforts to negotiate renewal of, and later to enforce, its franchise agreement with FPL. FPL insisted on deleting language in the expiring franchise agreement, without compensation, which granted the City the right to purchase FPL's assets within the City and provided a favorable pricing formula. The City therefore sought enforcement of its purchase rights in court and won. During court-ordered negotiations on an asset purchase, FPL successfully mounted a Charter revision and referendum campaign halting the sale. The parties are again negotiating a renewal of the franchise agreement. The Firm also assisted the City in forcing FPL to continue to collect and remit the franchise fee under the terms of the expiring agreement pending sale or successful negotiation of a new agreement. B. Representation in the Exercise of Franchise Rights. In Santa Rosa County v. Gulf Power Co., 635 So. 2d 96 (Fla. 1st DCA 1994), rev den'd sub nom. Gulf Power Co. v. Santa Rosa County, 645 So. 2d 452 (Fla. 1994), the Firm successfully established a local government's right to impose a franchise fee upon an investor-owned electric utility to recover the fair market value of the utility's use of the government's right of way for electric distribution lines. C. Representation in the Exercise of Franchise Rights. In Alachua County v. State, 737 So. 2d 1065 (Fla. 1999), the Firm represented Alachua County in litigation against Florida Power Corporation and Florida Power & Light. Although the Florida Supreme Court struck down Alachua County's "privilege" fee, the Court nevertheless re-affirmed the County's right to collect a franchise fee for right of way utilization. D. Representation of Sarasota County in enforcing acqUIsItIOn rights provided in a development agreement -the Firm represented Sarasota County in the enforcement of the County's utility acquisition rights pursuant to a development agreement entered into between the developer and Sarasota County. The decision is reported at Sarasota County v. Taylor Woodrow Homes Limited, 652 So. 2d 1247 (Fla. 2d DCA 1995). E. Creation of Florida Governmental Utility Authority -the Firm was instrumental in the creation of the Florida Governmental Utility Authority which is an intergovernmental authority created under Chapter 163, Florida Statutes, by various counties throughout the State to acquire utility facilities. Since its creation, we have assisted local governments in the acquisition of hundreds of millions of dollars worth of utility assets. Recently, the Firm led negotiations of behalf of the Authority leading to agreement with Aqua Utilities Florida, Inc., Florida's largest statewide water and sewer utility company, for the Authority's purchase of Aqua's Florida assets. The Finn is currently providing legal services necessary to close the transaction. F. Acquisition of the Assets of Avatar Facilities -the Finn negotiated and acquired the assets of Avatar Holding Company, Inc., on behalf of the Florida Governmental Utility Authority and assisted several other local governments in the acquisition of other assets of Florida Water Services Corporation. G. Acquisition of Assets of Florida Water Services Corporation -the Firm negotiated and acquired the assets of Florida Water Services Corporation on behalf of the Florida Governmental Utility Authority, Charlotte County and the Tohopekaliga Water Authority. H. Representation of the Tampa Bay Water Authority -the Firm represented the Tampa Bay Water Authority, a governmental water utility serving the Tampa Bay area, in the establishment of its governance structure, as well as the preparation of a new master water supply contract for all the member governments. This representation also includes acquiring the water assets of the various member governments and the financing of the various elements of Tampa Bay Water's capital improvement program through the issuance of approximately $2 billion of indebtedness. 1. Acquisition of Atlantic Utilities Water and Wastewater System by Sarasota County through eminent domain proceeding -the Firm represented Sarasota County in eminent domain proceedings brought against Atlantic Utilities of Sarasota, Inc. to acquire the utility's assets. This litigation is one of the few cases in Florida to proceed through trial and ultimate valuation by a jury. J. Various Other Government Utility Clients of the Firm -representative government entities for which the Firm currently provides or recently concluded utility related legal services include the City of Plant City, the City of South Daytona, the City of Tamarac, the Village of Pinecrest, Flagler County, Gadsden County, Hendry County, Columbia County, Levy County, Marion County, Monroe County, St. John's County, Okaloosa County, Dixie County, the Florida Governmental Utility Authority, the Lake Apopka Natural Gas District and the Lanark Village Water and Sewer District. RESOLUTION No.: 68-11-13382 A Resolution of the Mayor and City Commission of the City of South Miami, Florida, exploring options with regard to the Florida Power & Light Franchise Agreement scheduled to expire in 2014; and providing an effective date. WHEREAS, in May of 1984, the City of South Miami entered into a franchise agreement (the "Franchise Agreement") with FPL for a 30-year period which granted a non-exclusive electric franchise to the utility to utilize public rights of way throughout the City in return for franchise fees; and WHEREAS, the City currently receives approximately $1.2 million annually in franchise fees, approximately 9.4% of annual tax revenues and 6.4% of annual total revenues; and WHEREAS, certain franchise fees remitted to the City come from a regressive consumption tax of 5.7% on the electric bills of rate payers; and WHEREAS, the Franchise Agreement creates a tax on residents and business owners, in exchange for which they sign over sovereign rights to FPL -in essence the Franchise Agreement forces taxpayers to pay to lose their own rights; and WHEREAS, the Franchise Agreement locks taxpayers into a fixed tax rate for 30 years that cannot be changed by elected officials or by citizen referendum, even though the electric rates can be changed by FPL with no consent by the taxed parties or municipal elected officials, thus the amount the citizens are taxed is no longer under control of the City; and WHEREAS, the 30 year monopoly created by the Franchise Agreement limits the options available to City residents with regards to lowering energy prices and encouraging innovation through competition; and WHE~AS, pursuant to the Franchise Agreement,FPL can locate power lines and equipment almost any place unless the City can find a reason to challenge such placement or use; and WHEREAS, the City's right to self-determination dictate's sovereign authority with regards to the placement of power lines within the City, the deployment of new technologies, the use of renewable energy sources, and the distribution and selling of locally generated solar power; WHEREAS, FPL passes most, but not all, of the franchise fees through to the City, minus certain holdbacks, and subject to certain delays which allow FPL free use of the citizens' money; and WHEREAS, Miami Beach audited FPL's franchise fee collections over a three-year period and found that FPL had underpaid their city $1 million; and Page 1 of2 Res. No. 68-11-13382 WHEREAS, the City of Parkland, FL in Broward County did not renew their Franchise Agreement with FPL in 1993 but has continued to receive electric service as before; and WHEREAS, Franchise Agreements are unnecessary because cities without Franchise Agreements may continue to purchase electricity from FPL at the same rates as those with Franchise Agreements; NOW THEREFORE BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF SOUTH MIAMI THAT: Section 1. The City shall study all options with regards to the FPL Franchise Agreement expiring in May of 2014 including options to develop altemate tax revenues to replace the current revenue stream from franchise taxes imposed on rate payer's electricity bills with the goal that, by fiscal year 2013-14, the City will not need to rely on electricity franchise fees revenues for operations and could refrain from entering into a new Franchise Agreement with FPL. Section 2. This resolution shall take effect immediately upon adoption. PASSED AND ADOPTED this 1 9thday of -Ap~, 2011. ATTEST: Qn~~~ CITY CLERK COMMISSION VOTE: 4-0 Mayor Stoddard: Yea Vice Mayor Newman: Yea Commissioner Palmer: absent Commissioner Beasley: Yea Commissioner Harris: Yea Page 2 of2 2011 Florida Statutes Title XIX PUBLIC BUSINESS Chapter 287 Entire PROCUREMENT OF PERSONAL PROPERTY AND SERVICES -- Chapter 287.057 Procurement of commodities or contractual services.- The following contractual services and commodities are not subject to the competitive-solicitation requirements of this section: 1. Artistic services. For the purposes of this subsection, the term "artistic services" does not include advertising or typesetting. As used in this subparagraph, the term "advertising" means the making of a representation in any form in connection with a trade, business, craft, or profession in order to promote the supply of commodities or services by the person promoting the commodities or contractual services. 2. Academic program reviews if the fee for such services does not exceed $50,000. 3. Lectures by individuals. 4. Legal services. including attorney. paralegal. expert witness. appraisal. or mediator services. 5.a. Health services involving examination, diagnosis, treatment, prevention, medical consultation, or administration. MIAMI DAilY BUSINESS REVIEW Published Daily except Saturday, Sunday and Legal Holidays Miami, Miami·Dade County. Florida STATE OF FLORIDA COUNTY OF MIAMI-DADE: Before the undersigned authority personally appeared O.V. FERBEYRE, who on oath says that he or she is the VIC~ PRESIDENT, Legal Notices of the Miami Daily Business ReView f/k/a Miami Review, a daily (except Saturday, Sunday and Legal Holidays) newspaper, published at Miami In Miami-Dade County, Florida; that the attached copy of advertisement being a Legal Advertisement of Notice in the matter of ' CITY OF SOUTH MIAMI PUBLIC HEARING -FEB. 5, 2013 in the XXXX Court was published in said newspaper in the issues of 01/25/2013 Affiant further says that the said Miami Daily Business Review Is a newspaper published at Miami In said Miami-Dade County, Florida and that the said newspaper has her~tofore been continuously published In said Miami-Dade County, Flonda, each day (except Saturday, Sunday and Legal Holidays) and has been entered as second class mall matter at the post offi?e In Miami in said Miami-Dade County, Florida, for a period of one year next preceding the first publication of the attached copy of advertisement; and affiant further says that he or she h~s neither paid nor promised any person. firm or corporation any discount, rebate, commission or refund for the purpose of securin is adv e ent for publication in the said 2013 ~~~----~~~~~~~.~--~ MARIA MESA 1 « .. ~1 Notary Public -State 01 florida ~ My Comm. Expires Mar 4, 2016 Ho ~';"' Commission # EE 168275 -"""" ' " Bonded Through National Notary Assn. CITY OF SOUTH MIAMI NOTICE OF PUBLIC HEARING NOTICE IS HEREBY given that the City CommisSion of the CUy of South Miami, Florida will conduct Public Hearing(s) al Its regular City Commission meeting scheduled for Tuesday. February 6. 2013, beginning at 7:30 p.m., in the City Commission Chambers, 6t30 Sunset Drive, to consider the following item(s): ·rA Resolution authorizing the Cily Manager to execute ;;0 agreement, not to exceed a term of three years. with the law firm of Nabors, Giblin & Nickerson, P .A., to represent the City of South Miami during the negotiations of the franchise renewal ~greement with FPL. .J A Resolution authorizing the City Manager to enter into the Community Space Lease Agreement with Miami-Dade County for lease of 6701 SW 62 Avenue, South Miami. Florida for one . (1) year with aone (1) option to renew. An Ordinance relating to public records; amending the City of South Miami Code of Ordinances Section 2·18, (a) through (g) entitled . ':~t6!:1FaJ3hlf\~ Imaging and destruction of public records". An Ordinance relating to lobbyists; amending the City of South Miami Coda of Ordinances Section SA·5, (e) (1) entitled "Registration and filing requirements". and © (6) entitled "Fees", and, (d) (1) °List of expenditures'. An Ordinance amending the Section 20-3.3(0) of the City's Land Development Code adding Automotive Repair and Body Shop as a special use within the GR -General Retail Zoning District. ALL interested parties are invited to attend and will be heard. For further information, please contact the City Clerk's Office at: 305-663·6340. Maria M. Menendez, CMC City Clerk Pursuant to Florida Statutes 286.0105, the City hereby advises the public that if· a person decides to appeal any decision made by this Board, Agency or Commission with' respect to any matter considered at ils meeting or hearing, he or she will need a record of the proceedings, and that for such purpose, affected person may need to ensure that a verbatim record of \he proceedings is made which record includes the testimony and evidence upon which the appeal is to be based. 1/25 13·3-265/2020630M THE MIAMI HERALD J MiamiHerald.com SE SUNDAY, JANUARY 27, 2013 I 21SE .... .., .... ~ ............. _~~ ... " .... ,." • ... ·m ... " ................... _ •• "., ............... ~ ••••••• ~ ••••••••••••• _ •••••••