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10 REVISED 1 ORDINANCE NO. __________________ 1 2 3 AN ORDINANCE GRANTING TO FLORIDA POWER & 4 LIGHT COMPANY, ITS SUCCESSORS AND ASSIGNS, 5 AN ELECTRIC FRANCHISE, IMPOSING PROVISIONS 6 AND CONDITIONS RELATING THERETO, PROVIDING 7 FOR MONTHLY PAYMENTS TO THE CITY OF SOUTH 8 MIAMI, AND PROVIDING FOR AN EFFECTIVE DATE. 9 10 WHEREAS, the City Commission of the City of South Miami, Florida 11 recognizes that the City of South Miami (the “City”) and its citizens need and desire 12 the continued benefits of electric service; and 13 WHEREAS, the provision of such service requires substantial investments 14 of capital and other resources in order to construct, maintain and operate facilities 15 essential to the provision of such service in addition to costly administrative 16 functions, and the City does not desire to undertake to provide such services at this 17 time; and 18 WHEREAS, Florida Power & Light Company (“FPL”) is a public utility which 19 has the demonstrated ability to supply such services; and 20 WHEREAS, there is currently in effect a franchise agreement between the 21 City and FPL, the terms of which are set forth in City Ordinance No. 7-84-1202, 22 passed and adopted May 15, 1984, and FPL’s written acceptance thereof dated May 23 18, 1984 granting to FPL, its successors and assigns, a thirty (30) year electric 24 franchise (“Current Franchise Agreement”). As a result of short extensions passed 25 and adopted by the City on May 14, 2014 and on August 19, 2014, respectively, and 26 accepted byt FPL, the Current Franchise Agreement expires on September 18, 27 2014; and 28 2 WHEREAS, FPL and the City (collectively, the “Parties”) desire to enter into 1 a new agreement (“New Franchise Agreement”) providing for the payment of fees to 2 the City in exchange for the nonexclusive right and privilege of supplying electricity 3 within the City free of competition from the City, pursuant to certain terms and 4 conditions; and 5 WHEREAS, the City Commission deems it to be in the public interest to 6 enter into this agreement addressing certain rights and responsibilities of the Parties 7 as they relate to the use of the public rights-of-way within the City’s jurisdiction. 8 NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY 9 COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA: 10 Section 1. The foregoing recitals are hereby found to be true and correct, 11 and are incorporated herein and adopted and approved as if set out at length. 12 Section 2. There is hereby granted to FPL, its successors and assigns, for 13 the period of 30 years from the effective date hereof, the nonexclusive right, privilege 14 and franchise (hereinafter called "franchise") to construct, operate and maintain in, 15 under, upon, along, over and across the present and future roads, streets, alleys, 16 bridges, easements, rights-of-way and other public places (hereinafter called "public 17 rights-of-way") throughout all of the incorporated areas, as such incorporated areas 18 may be constituted from time to time, of the City and its successors, in accordance 19 with FPL's customary practices, and practices prescribed herein, with respect to 20 construction and maintenance of the electrical light, power and related facilities, 21 including, without limitation, conduits, underground conduits, poles, wires, 22 transmission and distribution lines, and all other facilities installed in conjunction with 23 3 or ancillary to FPL's provision of electricity and other services (hereinafter called 1 "facilities") to the City and its successors, the inhabitants thereof, and persons 2 beyond the limits thereof. 3 Section 3. (a) FPL’s facilities shall be so located, relocated, installed, 4 constructed and so erected as to not unreasonably interfere with the convenient, 5 safe, continuous use or the maintenance, improvement, extension or expansion of 6 any public “road” as defined under the Florida Transporation Code, nor 7 unreasonably interfere with reasonable egress from and ingress to abutting property. 8 (b) To minimize such conflicts with the standards set forth in subsection (a) 9 above, the location, relocation, installation, construction or erection of all facilities 10 shall be made as representatives of the City may prescribe in accordance with all 11 applicable federal and state laws, and pursuant to the City’s valid rules and 12 regulations with respect to utilities’ use of public rights-of-way relative to the placing 13 and maintaining in, under, upon, along, over and across said public rights-of-way, 14 provided such rules and regulations: 15 (i) shall be for a valid municipal purpose,; 16 (ii) shall not prohibit the exercise of FPL’s rights to use said 17 public rights-of-way for reasons other than conflict with 18 the standards set forth above,; 19 (iii) shall not unreasonably interfere with FPL’s ability to 20 furnish reasonably sufficient, adequate and efficient 21 electric service to all its customers while not conflicting 22 with the standards set forth above,; or 23 4 (iv) shall not require relocation of any of FPL’s facilities 1 installed, before or after the effective date hereof, in any 2 public right-of-way, unless or until widening or otherwise 3 changing the configuration of the paved portion of any 4 public right-of-way causes the facilities to unreasonably 5 interfere with the convenient, safe, or continuous use, or 6 the maintenance, improvement, extension, or expansion 7 of any such public “road,” or unless such relocation is 8 required by state or federal law. 9 (c) Such rules and regulations shall recognize that FPL’s above-grade 10 facilities installed after the effective date hereof should, unless otherwise permitted, 11 be installed near the outer boundaries of the public rights-of-way to the extent 12 possible. 13 (d) When any portion of a public right-of-way is excavated, damaged or 14 impaired by FPL or any of its agents, contractors or subcontractors because of the 15 installation, inspection, or repair of any of its facilities, the portion so excavated, 16 damaged or impaired shall, within a reasonable time and as early as practicable after 17 such excavation, be restored to a condition equal to or better than its original 18 condition before such damage by FPL at its expense. 19 (e) The City shall not be liable to FPL for any cost or expense incurred in 20 connection with the relocation of any of FPL’s facilities required under this Section, 21 except, however, that FPL may be entitled to reimbursement of its costs and 22 expenses from others and as provided by law. 23 5 Except as expressly provided, nothing herein shall limit or alter the City’s 1 existing rights with respect to the use or management of its rights-of-way that are not 2 otherwise preempted by the state or federal government. 3 Section 4. The acceptance of this New Franchise Agreement shall be 4 deemed an agreement on the part of FPL to the following: (a) to indemnify and save 5 the City harmless from any and all damages, claims, liability, losses and causes of 6 action of any kind or nature arising out of a negligent error, omission, or act of FPL, 7 its Contractor or any of their agents, representatives, employees, or assigns, or 8 anyone else acting by or through them, and arising out of or concerning the 9 construction, operation or maintenance of its facilities hereunder; (b) to pay all 10 damages, claims, liabilities and losses of any kind or nature whatsoever, in 11 connection therewith, including the City’s attorney’s fees and expenses in the 12 defense of any action in law or equity brought against the City, including appellate 13 fees and costs and fees and expenses incurred to recover attorney’s fees and 14 expenses from FPL, arising from the negligent error, omission, or act of FPL, its 15 Contractor or any of their agents, representatives, employees, or assigns, or anyone 16 else acting by or through them, and arising out of or concerning the construction, 17 operation or maintenance of its facilities hereunder. 18 Section 5. All rates and rules and regulations established by FPL from time 19 to time shall be subject to such regulation as may be provided by law. 20 Section 6(a). As a consideration for this franchise, FPL shall pay to the City, 21 commencing 90 days after the effective date hereof, and each month thereafter for 22 the remainder of the term of this franchise, an amount which added to the amount of 23 6 all licenses, excises, fees, charges and other impositions of any kind whatsoever 1 (except ad valorem property taxes and non-ad valorem tax assessments on 2 property) levied or imposed by the City against FPL’s property, business or 3 operations and those of its subsidiaries during FPL’s monthly billing period ending 4 60 days prior to each such payment will equal six percent of FPL’s billed revenues, 5 less actual write-offs, from the sale of electrical energy to residential, commercial and 6 industrial customers (as such customers are defined by FPL’s tariff) within the 7 incorporated areas of the City for the monthly billing period ending 60 days prior to 8 each such payment. In no event shall payment for the rights and privileges granted 9 herein exceed 6 percent of such revenues for any monthly billing period of FPL. For 10 clarity, actual write -offs will be subtracted from FPL’s billed revenues. In the event 11 FPL subsequently collects previously written-off billed revenues from the sale of 12 electrical energy to residential, commercial, and industrial customers, FPL shall pay 13 to the City a franchise payment on such revenues in accordance with the formula set 14 forth above in this Section 6(a). FPL shall continue to remit payment in a manner 15 consistent with the Current Franchise Agreement until the first payment is due under 16 this New Franchise Agreement. 17 The City understands and agrees that such revenues as described in the 18 preceding paragraph are limited, as in the existing franchise Ordinance No. 19 7-84-1202, to the precise revenues described therein, and that such revenues do not 20 include, by way of example and not limited to: (a) revenues from the sale of electrical 21 energy for Public Street and Highway Lighting (service for lighting public ways and 22 areas); (b) revenues from Other Sales to Public Authorities (service with eligibility 23 7 restricted to governmental entities); (c) revenues from Sales to Railroads and 1 Railways (service supplied for propulsion of electric transit vehicles); (d) revenues 2 from Sales for Resale (service to other utilities for resale purposes); (e) franchise 3 fees; (f) Late Payment Charges; (g) Field Collection Charges; (h) other service 4 charges. 5 (b) If during the term of this franchise FPL enters into a franchise 6 agreement with any other municipality located in Miami-Dade County or Broward 7 County, Florida, where the number of FPL’s meters for active electrical customers 8 does not exceed the number of meters for FPL’s active electrical customers within 9 the incorporated area of the City by more than one hundred and fifty (150) percent, 10 the terms of which provide for the payment of franchise fees by FPL at a rate greater 11 than 6 percent of FPL’s residential, commercial and industrial revenues (as such 12 customers are defined by FPL’s tariff), under substantially similar terms and 13 conditions as specified in Section 6(a) hereof, FPL, upon written request of the City, 14 shall negotiate and enter into a new franchise agreement with the City in which the 15 percentage to be used in calculating monthly payments under Section 6(a) hereof 16 shall be no greater than that percentage which FPL has agreed to use as a basis for 17 the calculation of payments to the other municipality, provided however, that such 18 new franchise agreement shall include additional benefits to FPL, in addition to all 19 benefits provided herein, at least equal to those, if any, provided by its franchise 20 agreement with the other municipality. Subject to all limitations, terms and conditions 21 specified in the preceding sentence, the City shall have the sole discretion to 22 determine the percentage to be used in calculating monthly payments, and FPL shall 23 8 have the sole discretion to determine those benefits to which it would be entitled, 1 under any such new franchise agreement. 2 (c) The City reserves the unilateral right, at its sole discretion and at any 3 time during the term of this franchise, but only once per calendar year, to reduce or 4 increase the franchise fee percentage rate, upon 120 days written notice to FPL, 5 provided that the franchise fee percentage rate shall in no event exceed 6 percent or 6 be reduced to zero percent. 7 (d) The City’s options hereunder shall be limited solely to the percentages 8 or calculations of the amount of the franchise fee to be paid by FPL as consideration 9 for this franchise as specifically set forth in this Section 6. Except as provided in this 10 Section 6, no other Section of this New Franchise Agreement may be altered, 11 amended or affected by the City without the written concurrence of FPL, and nothing 12 herein shall require the City to exercise any of its options hereunder. 13 Section 7. (a) As a further consideration, during the term of this franchise 14 or any extension thereof, the City agrees: (a) not to engage in the distribution and/or 15 sale, in competition with FPL, of electric capacity and/or electric energy to any other 16 ultimate consumer of electric utility service (herein called a "retail customer") or to 17 any electrical distribution system established solely to serve any retail customer 18 formerly served by FPL other than the City, and (b) not to participate in any 19 proceeding or contractual arrangement, the purpose or terms of which would be to 20 obligate FPL to transmit and/or distribute, electric capacity and/or electric energy 21 from any third party(ies) to any other retail customer's facility(ies). Nothing specified 22 9 herein shall prohibit the City from engaging with other utilities or persons in 1 wholesale transactions which are subject to the provisions of the Federal Power Act. 2 3 (b) Nothing herein shall prohibit or limit a customer of FPL, including the 4 City, if permitted by law, from installing an approved renewable generation system 5 to generate electric energy for use at the customer’s or the City’s premises 6 respectively. Furthermore, nothing herein shall prohibit or limit a person, including 7 the City, if permitted by law, from selling renewable energy or capacity to FPL. 8 Section 8. If the City grants a right, privilege or franchise to any other 9 person to provide retail electric service within any part of the incorporated areas of 10 the City in which FPL may lawfully serve or compete on terms and conditions which 11 FPL reasonably determines are more favorable than the terms and conditions 12 contained herein, FPL may at any time thereafter terminate this franchise if such 13 terms and conditions are not revised within the time period provided hereafter. FPL 14 shall give the City at least one hundered eighty (180) days advance written notice of 15 its intent to terminate. Such notice shall, without prejudice to any of the rights 16 reserved for FPL herein, advise the City of such terms and conditions that it 17 considers more favorable and the objective basis or bases of the claimed 18 competitive disadvantage. The City shall then have ninety (90) days in which to 19 correct or otherwise remedy the terms and conditions complained of by FPL. If FPL 20 determines that such terms or conditions are not remedied by the City within said 21 time period, FPL may terminate this franchise agreement by delivering written notice 22 by Certified United States Mail to the City's Clerk with copies to the Mayor, the City 23 10 Manager and the City Attorney and termination shall be effective on the date of 1 delivery of such notice. Nothing contained herein shall be construed as constraining 2 the City’s rights to legally challenge at any time FPL’s determination leading to 3 termination under this section. 4 Section 9. If as a direct or indirect consequence of any legislative, 5 regulatory or other action by the United States of America or the State of Florida (or 6 any department, agency, authority, instrumentality or political subdivision of either of 7 them) any person who offers retail electric service to the public is permitted to 8 provide electric service within the incorporated areas of the City to any applicant for 9 electric service within any part of the incorporated areas of the City in which FPL may 10 lawfully serve, and FPL reasonably determines that its obligations hereunder, or 11 otherwise resulting from this franchise in respect to rates and service, place it at a 12 competitive disadvantage with respect to such other person, FPL may, at any time 13 after the taking of such action, terminate this franchise if such competitive 14 disadvantage resulting from this fanchise is not remedied within the time period 15 provided hereafter. FPL shall give the City at least 180 days advance written notice 16 of its intent to terminate. Such notice shall, without prejudice to any of the rights 17 reserved for FPL herein, advise the City of the consequences of such action which 18 resulted in the competitive disadvantage. The City shall then have 90 days in which 19 to correct or otherwise remedy the competitive disadvantage. If such competitive 20 disadvantage is not remedied by the City within said time period, either by a 21 franchise agreement with such other person or otherwise, FPL may terminate this 22 franchise agreement by delivering written notice to the City's Clerk and termination 23 11 shall take effect on the date of delivery of such notice. Agreement by the City with 1 such other person to enter into a franchise containing substantially the same terms 2 as those provided herein shall be a sufficient, but not exclusive, remedy precluding 3 FPL’s termination of this franchise. Nothing contained herein shall be construed as 4 constraining the City’s rights to legally challenge at any time FPL’s determination 5 leading to termination under this section. 6 Section 10. Failure on the part of FPL to comply in any substantial respect 7 with any of the provisions of this franchise shall be grounds for forfeiture, but no such 8 forfeiture shall take effect if the reasonableness or propriety thereof is protested by 9 FPL until there is final determination (after the expiration or exhaustion of all rights of 10 appeal) by a court of competent jurisdiction that FPL has failed to comply in a 11 substantial respect with any of the provisions of this franchise, and FPL shall have six 12 months after such final determination to make good the default before a forfeiture 13 shall result with the right of the City at its discretion to grant such additional time to 14 FPL for compliance as necessities in the case may warrant. 15 Section 11. Failure on the part of the City to comply in substantial respect 16 with any of the provisions of this New Franchise Agreement, including but not limited 17 to: (a) denying FPL use of public rights-of-way for reasons other than as set forth in 18 Section 3 of this New Franchise Agreement; (b) imposing conditions for use of public 19 rights-of-way contrary to Federal or Florida law or the terms and conditions of this 20 franchise; (c) unreasonable delay in issuing FPL a use permit to construct its facilities 21 in public rights-of-way, shall constitute breach of this franchise. FPL shall notify the 22 City of any such breach in writing sent by Certified United States Mail or via nationally 23 12 recognized overnight courier and the City shall then remedy such breach as soon as 1 practicable. Should the breach not be timely remedied, FPL shall be entitled to seek 2 a remedy available under law or equity from a court of competent jurisdiction, 3 including the withholding of the payments provided for in Section 8 as a court of 4 competent jurisdiction determines to be just and reasonable under all the 5 circumstances hereof until such time as a use permit is issued or a court of 6 competent jurisdiction has reached a final determination dispositive of the matter. 7 Section 12. The Parties to this franchise agree that it is in each of their 8 respective best interests to avoid costly litigation as a means of resolving disputes 9 which may arise hereunder. Accordingly, the Parties agree that prior to pursuing 10 their available legal remedies, they will meet at the senior management level in an 11 attempt to resolve any disputes. If such informal efforts are unsuccessful after a 12 reasonable period of time, or when an impasse is declared by the Parties, then the 13 Parties may exercise any of their available legal remedies. 14 Section 13. The City may, upon reasonable notice and within 90 days after 15 each anniversary date of this franchise, at the City's expense, examine the records of 16 FPL relating to the calculation of the franchise payment for the year preceding such 17 anniversary date. Such examination shall be during normal business hours at FPL's 18 office where such records are maintained. Records not prepared by FPL in the 19 ordinary course of business or as required herein may be provided at the City's 20 expense and as the City and FPL may agree in writing. Information identifying FPL's 21 customers by name or their electric consumption shall not be taken from FPL's 22 premises. Such audit shall be impartial and all audit findings, whether they decrease 23 13 or increase payment to the City, shall be reported to FPL. The City’s right to examine 1 FPL’s records in accordance with this Section shall not be conducted by any third 2 party employed by the City whose fee, in whole or part, for conducting such audit is 3 contingent on findings of the audit. 4 The City waives, settles and bars all claims relating in any way to the 5 amounts paid by FPL under the Current Franchise Agreement embodied in 6 Ordinance No. 7-84-1202, however, this provision shall not be construed to waive, 7 settle or bar claims relating to any amounts due after the effective date of this New 8 Franchise Agreement, including those amounts to be paid in a manner consistent 9 with the terms of the Current Franchise Agreement until the first payment is made 10 under this New Franchise Agreement. 11 Section 14. The provisions of this ordinance are interdependent upon one 12 another and if any of the provisions of this ordinance are found or adjudged to be 13 invalid, illegal, void or of no effect by a court of competent jurisdiction (after the 14 expiration of all rights of appeal), such finding or adjudication shall not affect the 15 validity of the remaining provisions for a period of ninety (90) days, during which, this 16 agreement may be amended by the Parties. If an agreement to amend the 17 ordinance is not reached at the end of such ninety (90) day period, this entire 18 ordinance shall then become null and void, and of no further force or effect. 19 Section 15. The City acknowledges it is fully informed concerning the 20 existing franchise granted by Miami-Dade County, Florida, to FPL, and accepted by 21 FPL as set out in Ordinance No. 60-16 adopted on May 3, 1960, and subsequently 22 renewed and accepted by FPL as set out in Ordinance No. 89-81 adopted on 23 14 September 5, 1989 by the Board of County Commissioners of Miami-Dade County, 1 Florida. The City agrees to indemnify and hold FPL harmless against any and all 2 liability, loss, cost, damage and expense incurred by FPL in respect to any claim 3 asserted by Miami-Dade County against FPL arising out of the franchise set out in 4 the above referenced ordinances for the recovery of any sums of money paid by FPL 5 to the City under the terms of this New Franchise Agreement. FPL acknowledges 6 and the City hereby relies, in part, on then Dade County Resolution No. R-709-78 7 adopted on June 20, 1978 in the granting of this franchise. 8 Section 16. As used herein “person” means an individual, a partnership, a 9 corporation, a business trust, a joint stock company, a trust, an incorporated 10 association, a joint venture, a governmental authority or any other entity of whatever 11 nature. 12 Section 17. Ordinance No. 7-84-1202, passed and adopted May 15, 1984 13 and all other ordinances and parts of ordinances and all resolutions and parts of 14 resolutions in conflict herewith, are hereby repealed. 15 Section 18. This New Franchise Agreement shall be governed and 16 construed by the laws and administrative rules of the State of Florida and the United 17 States. In the event that any legal proceeding is brought to enforce the terms of this 18 franchise, it shall be brought by either party hereto in Miami-Dade County, Florida, 19 or, if a federal claim, in the U.S. District Court in and for the Southern District of 20 Florida, Miami Division. 21 Section 19. This New Franchise Agreement is intended to constitute the 22 entire agreement between the City and FPL with respect to the subject matters 23 15 hereof, and it supersedes all prior drafts and verbal or written agreements, 1 commitments, or understandings, which shall not be used to vary or contradict the 2 expressed terms hereof. 3 Section 20. Except in exigent circumstances, and except as otherwise may 4 be specifically provided for in this franchise, all notices by either party shall be made 5 by Certified United States Mail or via nationally recognized overnight courier service. 6 Any notice given by facsimile or email is deemed to be supplementary, and does not 7 alone constitute notice hereunder. All notices shall be addressed as follows: 8 9 To the City: To FPL: 10 City Manager Vice President, External Affairs 11 City Hall, 1st Floor 700 Universe Boulevard 12 6130 Sunset Drive Juno Beach, FL 33408 13 South Miami, FL 33143 14 15 Copy to: Copy to: 16 City Attorney General Counsel 17 1450 Madruga Avenue 700 Universe Boulevard 18 Suite 202 Juno Beach, FL 33408 19 Coral Gables, FL 33146 20 21 22 23 Any changes to the above shall be in writing and provided to the other party as soon 24 as practicable. 25 Section 21. As a condition precedent to the taking effect of the New 26 Franchise Agreement, FPL shall file its acceptance hereof with the City’s Clerk within 27 30 days of adoption of this ordinance. The effective date of the New Franchise 28 Agreement shall be the date upon which FPL files such acceptance. 29 16 1 2 PASSED AND ENACTED this ____ 16th day of _____________, 3 September, 2014. 4 5 6 ATTEST: APPROVED: 7 8 9 ________________________ 10 ________________________ _____________________ 11 CITY CLERK MAYOR 12 1st Reading 13 2nd Reading 14 15 16 READ AND APPROVED AS TO FORM:, COMMISSION 17 VOTE: 18 LANGUAGE, LEGALITY AND Mayor Stoddard: 19 EXECUTION THEREOF Vice Mayor Harris: 20 Commissioner Edmond: 21 Commissioner Liebman: 22 ________________________ Commissioner Welsh: 23 CITY ATTORNEY 24 25 26 27