2013-O-10 ORDINANCE NO. 2013-0-10
AN ORDINANCE GRANTING TO FLORIDA POWER & LIGHT
COMPANY ("FPL"), ITS SUCCESSORS AND ASSIGNS, AN ELECTRIC
FRANCHISE, IMPOSING PROVISIONS AND CONDITIONS RELATING
THERETO, PROVIDING FOR MONTHLY PAYMENTS TO THE CITY
OF EDGEWATER; PROVIDING FOR CONFLICTING PROVISIONS,
SEVERABILITY AND APPLICABILITY; PROVIDING FOR AN
EFFECTIVE DATE AND ADOPTION.
WHEREAS, the City Council of the City of Edgewater, Florida recognizes that the City
of Edgewater and its citizens need and desire the continued benefits of electric service; and
WHEREAS, the provision of such service requires substantial investments of capital and
other resources in order to construct, maintain and operate facilities essential to the provision of
such service in addition to costly administrative functions, and the City of Edgewater does not
desire to undertake to provide such services; and
WHEREAS, Florida Power & Light Company (FPL) is a public utility which has the
demonstrated ability to supply such services; and
WHEREAS, there is currently in effect a franchise agreement between the City of
Edgewater and FPL, the terms of which are set forth in City of Edgewater Ordinance No. 83-0-
16, passed and adopted November 7, 1983, and FPL's written acceptance thereof dated
November 29, 1983 granting to FPL, its successors and assigns, a thirty (30) year electric
franchise (Current Franchise Agreement); and
WHEREAS, FPL and the City of Edgewater desire to enter into a new agreement (New
Franchise Agreement) providing for the payment of fees to the City of Edgewater in exchange
for the nonexclusive right and privilege of supplying electricity and other electricity related
services within the City of Edgewater free of competition from the City of Edgewater, pursuant
to certain terms and conditions; and
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WHEREAS, the City Council of the City of Edgewater deems it to be in the best interest
of the City of Edgewater and its citizens to enter into the New Franchise Agreement prior to
expiration of the Current Franchise Agreement.
NOW, THEREFORE, BE IT ENACTED by the City Council of the City of
Edgewater, Florida:
Section 1. There is hereby granted to Florida Power & Light Company, its successors
and assigns (hereinafter called the "Grantee"), for the period of thirty (30) years from the
effective date hereof, the nonexclusive right, privilege and franchise (hereinafter called
"franchise") to construct, operate and maintain in, under, upon, along, over and across the
present and future roads, streets, alleys, bridges, easements, rights-of-way and other public
places (hereinafter called "public rights-of-way") throughout all of the incorporated areas, as
such incorporated areas may be constituted from time to time, of the City of Edgewater, Florida,
and its successors (hereinafter called the "Grantor"), in accordance with the Grantee's customary
practice with respect to construction and maintenance, electric light and power facilities,
including, without limitation, conduits, poles, wires, transmission and distribution lines, and all
other facilities installed in conjunction with or ancillary to all of the Grantee's operations
(hereinafter called "facilities"), for the purpose of supplying electricity and other services to the
Grantor and its successors, the inhabitants thereof, and persons beyond the limits thereof.
Section 2. The facilities of the Grantee shall be installed, located or relocated so as to
not unreasonably interfere with traffic over the public rights-of-way or with reasonable egress
from and ingress to abutting property. It is the intent of the foregoing provision that all lanes of
travel shall remain accessible for use by vehicular traffic once the installation, location or
relocation of the facilities has been completed. To avoid conflicts with traffic, the location or
relocation of all facilities shall be made as representatives of the Grantor may prescribe in
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accordance with the Grantor's reasonable rules and regulations with reference to the placing and
maintaining in, under, upon, along, over and across said public rights-of-way; provided,
however, that such rules or regulations (a) shall not prohibit the exercise of the Grantee's right to
use said public rights-of-way for reasons other than unreasonable interference with motor
vehicular traffic, (b) shall not unreasonably interfere with the Grantee's ability to furnish
reasonably sufficient, adequate and efficient electric service to all of its customers, and (c) shall
not require the relocation of any of the Grantee's facilities installed before or after the effective
date hereof in public rights-of-way unless or until widening or otherwise changing the
configuration of the paved portion of any public rights-of-way used by motor vehicles causes
such installed facilities to unreasonably interfere with motor vehicular traffic. Notwithstanding
the foregoing, Grantee agrees to abide by Grantor's municipal ordinances, policies and
regulations as amended from time to time, to the extent that said municipal ordinances, policies
and regulations are not in conflict with Florida law or this New Franchise Agreement. Grantor
agrees not to unreasonably impair Grantee's reasonable use of the rights-of-way in the adoption,
amendment and enforcement of City ordinances, policies and regulations and Grantor further
agrees that in adopting and amending City ordinances, policies and regulations, when applicable,
reference will be made to the most recent editions of the following Florida Department of
Transportation publications: Manual of Uniform Traffic Control Devices, Maintenance of
Traffic Standards, Manual of Uniform Minimum Standards for Design, Construction, and
Maintenance for Streets and Highways and Utility Accommodation Guide. Such rules and
regulations shall recognize that above-grade facilities of the Grantee installed after the effective
date hereof should be installed near the outer boundaries of the public rights-of-way to the extent
possible. When any portion of a public rights-of-way is excavated by the Grantee in the location
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or relocation of any of its facilities, the portion of the public right-of-way so excavated shall
within a reasonable time be replaced by the Grantee at its expense and in as good condition as it
was at the time of such excavation. The Grantor shall not be liable to the Grantee for any cost or
expense in connection with any relocation of the Grantee's facilities required under subsection
(c) of this Section, except, however, the Grantee shall be entitled to reimbursement of its costs
from others and as may be provided by law.
Section 3. The Grantor shall in no way be liable or responsible for any accident or
damage that may occur in the construction, operation or maintenance by the Grantee of its
facilities hereunder, and the acceptance of this ordinance shall be deemed an agreement on the
part of the Grantee to indemnify the Grantor and hold it harmless against any and all liability,
loss, cost, damage or expense which may accrue to the Grantor by reason of the negligence,
default or misconduct of the Grantee in the construction, operation or maintenance of its
facilities hereunder.
Section 4. All rates and rules and regulations established by the Grantee from time to
time shall be reasonable as may be provided by law and Grantee's rates for electricity shall be
subject to such regulation as may be provided by law.
Section 5. As a consideration for this franchise, the Grantee shall pay to the Grantor,
commencing ninety (90) days after the effective date hereof, and each month thereafter for the
remainder of the term of this franchise, an amount which added to the amount of all licenses,
excises, fees, charges and other impositions of any kind whatsoever (except ad valorem property
taxes and non-ad valorem tax assessments on property) levied or imposed by the Grantor against
the Grantee's property, business or operations and those of its subsidiaries during the Grantee's
monthly billing period ending sixty (60) days prior to each such payment will equal 5.9 percent
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(5.9%) of the Grantee's billed revenues, less actual write-offs, from the sale of electrical energy
to residential, commercial and industrial customers (as such customers are defined by FPL's
tariff) within the incorporated areas of the Grantor for the monthly billing period ending sixty
(60) days prior to each such payment, and in no event shall payment for the rights and privileges
granted herein exceed 5.9 percent (5.9%) of such revenues for any monthly billing period of the
Grantee.
The Grantor understands and agrees that such revenues as described in the preceding
paragraph are limited, as in the existing franchise Ordinance No. 83-0-16, to the precise
revenues described therein, and that such revenues do not include, by way of example and not
limitation: (a) revenues from the sale of electrical energy to Public Street and Highway Lighting
(service for lighting public ways and areas); (b) revenues from Other Sales to Public Authorities
(service with eligibility restricted to governmental entities); (c) revenues from Sales to Railroads
and Railways (service supplied for propulsion of electric transit vehicles); (d) revenues from
Sales for Resale (service to other utilities for resale purposes); (e) franchise fees; (f) Late
Payment Charges; (g) Field Collection Charges; (h) other service charges.
Section 6. If during the term of the franchise the Grantee enters into a franchise
agreement with any other municipality located in Volusia County, Florida, where the number of
Grantee's active electrical customers is equal to or less than the number of Grantee's active
electrical customers within the incorporated area of the Grantor, the terms of which provide for
the payment of franchise fees by the Grantee at a rate greater than 5.9 percent (5.9%) of the
Grantee's residential, commercial and industrial revenues (as such customers are defined by
FPL's tariff), under the same terms and conditions as specified in Section 5 hereof, the Grantee,
upon the written request of the Grantor, shall negotiate and enter into a new franchise agreement
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with the Grantor in which the percentage to be used in calculating monthly payments under
Section 5 hereof shall be no greater than that percentage which the Grantee has agreed to use as a
basis for the calculation of payments to the other Volusia County municipality, provided,
however, that such new franchise agreement shall include additional benefits to the Grantee, in
addition to all benefits provided herein, at least equal to those provided by its franchise
agreement with the other Volusia County municipality. Subject to all limitations, terms and
conditions specified in the preceding sentence, the Grantor shall have the sole discretion to
determine the percentage to be used in calculating monthly payments, and the Grantee shall have
the sole discretion to determine those benefits to which it would be entitled, under any such new
franchise agreement.
Section 7(a). As a further consideration, during the term of this franchise or any
extension thereof, the Grantor agrees: (a) not to engage in the distribution and/or sale, in
competition with the Grantee, of electric capacity and/or electric energy to any ultimate
consumer of electric utility service (herein called a "retail customer") or to any electrical
distribution system established solely to serve any retail customer formerly served by the
Grantee, (b) not to participate in any proceeding or contractual arrangement, the purpose or terms
of which would be to obligate the Grantee to transmit and/or distribute, electric capacity and/or
electric energy from any third party(ies) to any other retail customer's facility(ies), and (c) not to
seek to have the Grantee transmit and/or distribute electric capacity and/or electric energy
generated by or on behalf of the Grantor at one location to the Grantor's facility(ies) at any other
location(s). Nothing specified herein shall prohibit the Grantor from engaging with other utilities
or persons in wholesale transactions which are subject to the provisions of the Federal Power
Act.
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(b) Notwithstanding the foregoing, Grantor may (i) generate electric capacity and/or
energy at any facility owned or leased by Grantor for utilization at that facility or other facilities
owned or leased by Grantor, provided that delivery of that electric capacity and/or energy does
not extend beyond the contiguous properties of Grantor for those facilities; and (ii) sell electric
capacity and/or energy to Grantee in compliance with applicable state or federal rules and
regulations controlling such transactions. For purposes of this section, the term "owned or leased
by the Grantor" means properties owned, leased, operated, held in trust by, or dedicated to, the
Grantor, including properties held by any corporate entity or agency created by the Grantor.
(c) Nothing herein shall prohibit the Grantor, if permitted by law, (i) from purchasing
electric capacity and/or electric energy from any other person, or (ii) from seeking to have the
Grantee transmit and/or distribute to any facility(ies) of the Grantor electric capacity and/or
electric energy purchased by the Grantor from any other person; provided, however, that before
the Grantor elects to purchase electric capacity and/or electric energy from any other person, the
Grantor shall notify the Grantee. Such notice shall include a summary of the specific rates, terms
and conditions which have been offered by the other person and identify the Grantor's facilities
to be served under the offer. The Grantee shall thereafter have ninety (90) days to evaluate the
offer and, if the Grantee offers rates, terms and conditions which are equal to or better than those
offered by the other person, the Grantor shall be obligated to continue to purchase from the
Grantee electric capacity and/or electric energy to serve the previously-identified facilities of the
Grantor for a term no shorter than that offered by the other person. If the Grantee does not agree
to rates, terms and conditions which equal or better the other person's offer, all of the terms and
conditions of this franchise shall remain in effect.
Section 8. If the Grantor grants a right, privilege or franchise to any other person or
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otherwise enables any other such person to construct, operate or maintain electric light and
power facilities within any part of the incorporated areas of the Grantor in which the Grantee
may lawfully serve or compete on terms and conditions which the Grantee determines are more
favorable than the terms and conditions contained herein, the Grantee may at any time thereafter
terminate this franchise if such terms and conditions are not remedied within the time period
provided hereafter. The Grantee shall give the Grantor at least one hundred eighty (180) days
advance written notice of its intent to terminate. Such notice shall, without prejudice to any of
the rights reserved for the Grantee herein, advise the Grantor of such terms and conditions that it
considers more favorable and the objective basis or bases of that determination. The Grantor
shall then have ninety (90) days in which to correct or otherwise remedy the terms and
conditions complained of by the Grantee. If the Grantee determines that such terms or
conditions are not remedied by the Grantor within said time period, or any mutually agreed-upon
extension thereof, the Grantee may terminate this franchise agreement by delivering written
notice to the Grantor's Clerk and termination shall be effective on the date of delivery of such
notice.
Section 9. If,
(i) as a result of action taken by and directly within the control of the Grantors AND
(ii) as a direct or indirect consequence of any legislative, regulatory or other action by
the United States of America or the State of Florida (or any department, agency,
authority, instrumentality or political subdivision of either of them)
any person is permitted to provide electric service within the incorporated areas of the Grantor to
a customer then being served by the Grantee, or to any new applicant for electric service within
any part of the incorporated areas of the Grantor in which the Grantee may lawfully serve, and
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the Grantee reasonably determines that its obligations hereunder, or otherwise resulting from this
franchise in respect to rates and service, place it at a competitive disadvantage with respect to
such other person, the Grantee may, at any time after the taking of such action, terminate this
franchise if such competitive disadvantage is, in the reasonable determination of the Grantee, not
remedied within the time period provided hereafter. The Grantee shall give the Grantor at least
one hundred eighty (180) days advance written notice of its intent to terminate. Such notice
shall, without prejudice to any of the rights reserved for the Grantee herein, advise the Grantor of
the specific consequences of such action which resulted in the competitive disadvantage, and the
objective basis or bases of the competitive disadvantage. The Grantor shall then have ninety (90)
days in which to correct or otherwise remedy the competitive disadvantage. If such competitive
disadvantage is, in the reasonable determination of the Grantee, not remedied by the Grantor
within said time period, the Grantee may terminate this franchise agreement by delivering
written notice to the Grantor's Clerk and termination shall take effect on the date of delivery of
such notice. Notwithstanding the foregoing provisions in Section 8 and this Section 9, upon
written request of the Grantor within the ninety (90) day period for an in-person meeting
between representatives of the Grantor and Grantee, Grantee agrees that it s hall meet with
Grantor prior to terminating the franchise agreement. Nothing contained herein shall be
construed as constraining Grantor's rights to legally challenge FPL's reasonable determination of
competitive disadvantage leading to termination under Section 8 or Section 9.
Section 10. Failure on the part of the Grantee to comply in any substantial respect with
any of the provisions of this franchise shall be grounds for forfeiture, but no such forfeiture shall
take effect if the reasonableness or propriety thereof is protested by the Grantee until there is
final determination (after the expiration or exhaustion of all rights of appeal) by a court of
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competent jurisdiction that the Grantee has failed to comply in a substantial respect with any of
the provisions of this franchise, and the Grantee shall have six (6) months after such final
determination to make good the default before a forfeiture shall result with the right of the
Grantor at its discretion to grant such additional time to the Grantee for compliance as necessities
in the case require. The provision of Section 10 are without prejudice to Grantor's rights to
pursue legal or equitable relief for damages or injunctive relief arising from Grantee's improper
failure to comply with the franchise.
Section 11. Failure on the part of the Grantor to comply in substantial respect with any
of the provisions of this ordinance, including but not limited to: (a) denying the Grantee use of
public rights-of-way for reasons other than unreasonable interference with motor vehicular
traffic; (b) imposing conditions for use of public rights-of-way contrary to Florida law or the
terms and conditions of this franchise; (c) unreasonable delay in issuing the Grantee a use permit,
if any, to construct its facilities in public rights-of-way, shall constitute breach of this franchise
and entitle the Grantee to vz ithhold all or part of the pav meats prov ided for in section 5 hereof
until such time as a use permit is issued or a court of competent jurisdiction has reached a final
determination in the matter. The Grantor recognizes and agrees that nothing in this franchise
agreement constitutes or shall be deemed to constitute a waiver of the Grantee's delegated
sovereign right of condemnation and that the Grantee, in its sole discretion, may exercise such
right.
Section 12. The Grantor may, upon reasonable notice and within one hundred eighty
(180) days after each anniversary date of this franchise, at the Grantor's expense, examine the
records and data of the Grantee relating to the calculation of the franchise payment for the year
preceding such anniversary date. Such examination shall be during normal business hours at the
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Grantee's office where such records are maintained. Records not prepared by the Grantee in the
ordinary course of business may be provided at the Grantor's expense and as the Grantor and the
Grantee may agree in writing. Information identifying the Grantee's customers by name or their
electric consumption shall not be taken from the Grantee's premises. Such audit shall be
impartial and all audit findings, whether they decrease or increase payment to the Grantor, shall
be reported to the Grantee. The Grantor's right to examine the records of the Grantee in
accordance with this Section shall not be conducted by any third party employed by the Grantor
whose fee, in whole or in part, for conducting such audit is contingent on findings of the audit.
Grantor waives, settles and bars all claims relating in any way to the amounts paid by the
Grantee under the Current Franchise Agreement embodied in Ordinance No. 83-0-16 not
asserted in writing within one hundred eighty (180) days after the effective date of this ordinance
with a notice of intent to audit. Grantee agrees to provide all information reasonably requested
by the auditor, and both parties agree to pursue the completion of the audit as diligently and
expeditiously as possible. Grantor s hall have up to three hundred sixty-five (365) days after
completion of audit to file a legal action against Grantee should it be deemed necessary as a
result of the audit.
Section 13. The provisions of this ordinance are interdependent upon one another, and
if any of the provisions of this ordinance are found or adjudged to be invalid, illegal, void or of
no effect, the entire ordinance shall be null and void and of no force or effect.
Section 14. As used herein "person" means an individual, a partnership, a corporation,
a business trust, a joint stock company, a trust, an incorporated association, a joint venture, a
governmental authority or any other entity of whatever nature.
Section 15. Ordinance No. 83-0-16, passed and adopted November 7, 1983 and all
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other ordinances and parts of ordinances and all resolutions and parts of resolutions in conflict
herewith, are here repealed.
Section 16. As a condition precedent to the taking effect of this ordinance, the Grantee
shall file its acceptance hereof with the Grantor's Clerk within thirty (30) days of adoption of this
ordinance.
ADOPTION.
After Motion to approve by Councilwoman Bennington with Second by Councilwoman
Power, the vote on the first reading/public hearing of this ordinance held on August 19, 2013 was
as follows:
AYE NAY
Mayor Mike Thomas X
Councilwoman Christine Power X
Councilwoman Gigi Bennington X
Councilman Mike Ignasiak X
Councilman Gene Emter X
After Motion to approve Councilwoman Power with Second by Councilwoman
Bennington, the vote on the second reading of this ordinance held on September 9, 2013, was as
follows: AYE NAY
Mayor Mike Thomas X
Councilwoman Christine Power X
Councilwoman Gigi Bennington X
Councilman Mike Ignasiak X
Councilman Gene Emter X
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PASSED AND DULY ADOPTED this 9th day of September, 2013.
ATTEST: CITY COUNCIL OF THE
CITY OF EDG ' • . R FL II RIDA
iaa B, :
Bonnie Wenzel �) �Th: as
City Clerk ayor
a C��
Robin L. Matusick
Paralegal
For the use and reliance only by the City of Approved by the City Council of the City of
Edgewater, Florida. Approved as to form and Edgewater at a meeting held on this 9th day of
legality by: Aaron R. Wolfe, Esquire September, 2013 under Agenda Item No.
City Attorney 8C. .
Doran, Sims, Wolfe& Kundid
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ACCEPTANCE OF ELECTRIC FRANCHISE
ORDINANCE NO. 2013-0-10
BY FLORIDA POWER & LIGHT COMPANY
City of Edgewater, Florida October 1, 2013
Florida Power & Light Company does hereby accept the electric franchise in the City of
Edgewater, Florida, granted by Ordinance No. 2013-0-10, being:
AN ORDINANCE GRANTING TO FLORIDA POWER & LIGHT COMPANY
("FPL"), ITS SUCCESSORS AND ASSIGNS, AN ELECTRIC FRANCHISE,
IMPOSING PROVISIONS AND CONDITIONS RELATING THERETO,
PROVIDING FOR MONTHLY PAYMENTS TO THE CITY OF EDGEWATER;
PROVIDING FOR CONFLICTING PROVISIONS, SEVERABILITY AND
APPLICABILITY; PROVIDING FOR AN EFFECTIVE DATE AND ADOPTION.
which was passed and adopted on September 9, 2013.
This instrument is filed with the City Clerk of the City of Edgewater Florida, in accordance
with the provisions of Section 16 of said Ordinance.
FLORIDA POWER & LIGHT COMPANY
By .- N4dtA_
t iCC-C.Li
Pamela M. Rauch, Vice President
STATE OF FLORIDA
COUNTY OF PALM BEACH
The foregoing instrument was acknowledged before me this 1\ day of
Y
2013 by Pamela M. Rauch of Florida Power & Light Company, a Florida corporation behalf
of the corporation, who is personally known to me.
`ts!Y P��'• HEATHER P.MELIGONIS Lit.j / • ' ���� ""
;.: •;s MY COMMISSION#DD937635 NOTARY PUBLIC Signa' re
. .o EXPIRES:December 6,2013
ofd:` 9onded Thru Notary Public Underwriters
I HEREBY ACKNOWLEDGE receipt of the above Acceptance of Electric Franchise
Ordinance No. 2013-0-10 by Florida Power & Light Company, and certify that I have filed the
same for record in the permanent files and records of the City of Edgewater, Florida on this
I day of (XL > r , 2013.
O,1'■'.. 0
(SEAL) Clerk, City of Edgewatr, Florida