HomeMy WebLinkAboutDocumentation_Regular_Tab 10_05/08/2014 VILLAGE CLERK'S OFFICE
AGENDA ITEM TRANSMITTAL FORM
Meeting Date: Meeting Type: Regular Ordinance #: 12-14
5/8/14
Consent Agenda: No Resolution #:
Originating Department: Legal
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ORDINANCE 12-14, FIRST READING, GRANTING TO FLORIDA POWER & LIGHT COMPANY, ITS
SUCCESSORS AND ASSIGNS, AN ELECTRIC FRANCHISE, IMPOSING PROVISIONS AND CONDITIONS
RELATING THERETO, PROVIDING FOR MONTHLY PAYMENTS TO THE VILLAGE OF TEQUESTA
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Account #: Amount of this item:
Current Budgeted Amount Available: Amount Remaining after item:
Budget Transfer Required: Ch�ose an Appropriate Fund Balance: Cho�se an ite�r�.
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,...� . .
Department Head Submitted by legal
Finance Director or Representative ��
Reviewed for Financial Sufficiency � ' �
No Financial Impact ❑ �
Attorney: (for legal sufficiency)
Village Manager: _
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Submit for Council Discussion: ❑ � � _�
Approve Item: ❑
Deny Item: �
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Form Amended: 3/14/14
ORDINANCE N0.12-14
AN ORDINANCE OF THE VII..LAGE COUNCII. OF THE
VII,LAGE OF TEQUESTA, FLORIDA, GRANTING TO
FLORIDA POWER & LIGHT COMPANY, ITS SUCCESSORS
AND ASSIGNS, AN ELECTRIC FRANCffiSE, IlVIPOSING
PROVISIONS AND CONDITIONS RELATING 1'HERETO,
PROVIDING FOR MONTffi.Y PAYMENTS TO THE VII�LAGE
OF TEQUESTA, PROVIDING AN EFFECTIVE DATE; AND
FOR OTI�R PURPOSES.
WI�REAS, the Village Council of the Village of Tequesta, Florida recognizes that the
Village of Tequesta and its citizens need and desire the continued b�enefits of electric service; and
WHEREAS, the provision of such service requires substantial investments of capital and
other resources in order to conshuct, maintain and operate facilities essen.tial to the provision of
such service in addition to costly administrative functions, and the Village of Tequesta does not
desire to undertake to provide such services; and
WHEREAS, Florida. Power & Light Company (FPL) is a public utility wluch has the
demonstrated ability to suppiy such services; and
WHEREAS, there is currently in effect a franchise agreement between the Village of
Tequesta and FPL, the terms of which aze set forth in Village of Tequesta. Ordinance No. 331,
passed and adopted September 11, 1984, and FPL's written acceptance thereof dated September 26,
1984 granting to FPL, its successors and assigns, a thirty (30) year electcic franchise ("Current
Franchise Agreement"); and
WHEREAS, FPL and the Village of Tequesta desire to enter into a new agreement (New
Franchise Agreement) providing for the payment of fees to the Village of Tequesta in exchange for
the nonexclusive right and privilege of supplying electricity and other services within the Village of
Tequesta free of competition from the Village of Tequesta, pursuant to certain terms and
conditions and
WI�REAS, the Village Council of the Village of Tequesta d�ms it to � in the best
interest of the Village of Tequesta and its citizens to enter into the New Francluse Agreement prior
to expira.tion of the Current Franchise Agreement;
NOW, TI�REFORE, BE IT ORDAINED BY THE VII.LAGE COUNCII.) OF
THE VII.LAGE OF TEQUESTA, FLORIDA:
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Section 1. There is hereby granted to Florida Power & Light Company, its successors
and assigns (hereina.fter called the "Graxitee"), for the �riod of 30 years from the effective date
hereo� the nonexclusive right, privilege and franchise (hereina.fter called "franchise") to construct,
operate and maintain in, under, upon, along, over and across the present and firture roads, streets,
alleys, bridges, easements, rights-of-way and other public places (hereina.fter called "public rights-
of-way") throughout all of the incor�rated areas, as such incorporated areas may be consti�
from time to time, of the Village of Tequesta, 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 tlie 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 fa�cilities of the Grrantee shall be installed, located or relocated so as to not
unreasonably interfere with tra�ic over the public rights-of-way or with reasonable egtess from and
ingress to abutting property. To avoid conflicts with tra�ic, the location or relocation of all facilities
shall be made as representa.tives of the Grantor may prescribe in 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 pro}ubit the exercise of the Grantee's right to use said public rights-of-way for reasons
other than unreasonable interference with motor vehicular tr�a.ffic, (b) shall not unreasonably
interfere with the Crrantee's ability to furnish reasonably sufficient, adequate and efficient electric
senrice to all of its customers, and (c) shall not require the relocation of any of the Grantee's
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facilities installed before or after the effective date hereof in public rights-of-wa.y unless or until
widening or otherwise changing the configuration of the paved portion of any public right-of-way
used by motor vehicles causes such installed facilities to unreasonably interfere with motor
vehicular ha.flic. Such rules and regulations shall recognize that above-grade facilities of the
�rantee installed after the effective date hereof should be installed near the outer boundaries of the
public rights-of-way to the extent �ssible. When any portion of a public right-of-way is exca.vated
by the Grantee in the location or relocation of any of its facilities,l�e 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 sha11 not be liable to the
Grantee for any cost or ex�nse in connection with any relocation of the Gr�ntee'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 � provided by law.
Section 3. The Grantor shall in no wa.y be liable or responsible for any accident or
damage that may occur in the construction, operation or maintena,nce by the Grantee of its facilities
hereunder, and the acceptance of this ordinance sha11 be deemed an agreement on the part of the
Grantee to indemnify the Grantor and hold it harmless against any and a11 liability, loss, cost,
damage or expense which ma.y accrue to the Grantor by reason of the negligence, default or
misconduct of the Grant� 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 subject to such regulation as may be provided by law.
Section 5. As a consideration for this franchise, the Grantee shall pa.y to the Grantor,
commencing 90 days after the effective date her�o� and e�.ch month thereafter for the remainder of
the term of this franchise, an amount which added to the amount of all licenses, excise.s, fees,
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charges and other impositions of any ki.nd whatsoever (except ad valorem properiy taxes and non-ad
valorem tax assessments on properly) 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 60 days prior to each such payment will equal 6.0 percent of the Crrantee'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 tari� within the incorporated areas of
the Grantor for the monthly billing period ending 60 da.ys prior to each such payment, and in no
event shall payment for the rights and privileges granted herein exceed 6.0 percent of such revenues
for any monthly billing period of the Grantee.
The Grantor understa�ds and agrees that such revenues as described in the preceding
paragraph are limited, as in the existing franchise Ordinance No. 331, to the precise revenues
described therein, and that such revenues do not include, by way of example and not li.mitation: (a)
revenues from the sale of electrical energy for Public Street and Highwa.y 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 Railwa.ys
(service supplied for propulsion of electric hansit vehicles); (d) revenues from Sa1es for Resale
(service to other utilities for resale purposes); (e) franchise fees; ( fl Late Payment Charges; (g) Field
Collection Charges; (h) other service charges.
Section 6. As a fiuther consideration, during the term of this franchise or any extension
thereof, the Grantor agrees: (a) not to engage in the distribution and/or sa1e, 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 dislribution system est.ablished solely
to serve any retail customer formerly served by the Grantee, (b) not to participate in any proceeding
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or conttactual arrangement, the purpose or terms of wluch would be to obligate the Grantee to
transmit and/or distribute, electric ca.pacity 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 distarribute
electric capacity and/or electric energy genera.ted by or on behalf of the Crrantor at one location to
the Giantor's facility(ies) at any other location(s). Nothing specified herein shall prohibit the
Grantor from engaging with other utilities or persons in wholesale �ctions which are subject to
the provisions of the Federal Power Ac�
Nothing herein shall probibit the Grantor, if permitted by law, (i) from purchasing
electric capacity and/or electric energy from any other person, or (u) from seeking to ha.ve the
Crrantee transmit and/or distribute to any facility(ies) of the Grantor electric ca.pacity and/or electric
energy purchased by the Grantor from any other person; provided, however, that before the
Crrantor elects to purchase electric capacity and/or elecl�ic energy from any other person, the
Grantor shall notify the Crrantee. 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 90 days to evaluate the offer and, if
the Gtantee offers rates, terms and conditions which are equal to or better than those o�ered by the
other person, the Grantor sha11 be obligated. to continue to purchase from the Crrantee electric
capa.city 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 coaditions of this
francluse shall remain in effect.
Section 7. If the Crrantor grants a right, privilege or franchise to aaiy other person or
otherwise ena.bles any other such person to construct, operate or maintain electric light and �wer
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facilities within the State of Florida. on terms and conditions which the Crrantee reasonably
determines are more favorable than the terms and conditions contained herein, the Grantee may at
any ti.me thereafter terminate this franchise if such terms and conditions aze not remedied within the
time period provided hereafter. The Crrantee shall give the Grantor at least 90 days advance written
notice of its intent to termina.te. 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 reasonably considers
more favorable. The Grantor sha11 then have 90 da.ys in which to correct or othervvise remedy the
more favorable terms and conditions complained. of by the Grantee. If the Grantee reasonably
determines that such terms or conditions are not remedied. by the Grantor within said time period,
the Crtantee may terminate this franchise agreement by delivering written notice to the Gtantor's
Clerk and termination shall be effective on the date of delivery of such notice.
Section 8. If as a direct or indirect consequence of any legislative, regulatory or other
action by the United States of America or the Sta.te of Florida. (or any department, agency, authority,
instrumentality or political su�.ivision of either of them) any person is permitted to provide eiectric
service within the incorporated areas of the Grantor to a customer then being served by the Gtantee,
or to any new applicant for electric service within any part of the incorporated areas of the Crrantor
in which the Crrantee ma.y la.wfully serve, and the Grant� determi.nes that its obligaxions hereunder,
or otherwise resulting from this franchise in respect to rates and service, place it at a competitive
disadvantage with res�ct to such other person, the Grantee ma.y, at any time after the taking of such
action, terminate this franchise if such com�titive disadvantage is not remedied within the time
period provided hereafter. The Grantee shall give the Grantor at least 90 days advance written
notice of its iment to terminate. Such notice shall, without prejudice to any of the rights reserved for
the Crrantee herein, advise the Grantor of the consequences of such action which resulted in the
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com�titive disadvantage. The Cn�antor shall then have 90 days in which to correct or otherwise
remedy the competitive disadvantage. If such competitive disadvantage is not remedieri by the
Grantor within said time period, the Grantee ma.y terminate this franchise agreement by deliveri.ng
written notice to the Grantor's Clerk and termination shall take effect on the date of delivery of such
notice.
Section 9. Failure on the part of the Grant� 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 (a.fter the expiration or exha.ustion of all rights of appeal) by a court of competent
jurisdiction that the Grantee has failed to comply in a substantial respect with any of the provisions
of this fia.nchise, and the Grantee shall ha.ve six months after such final determination to make good
the default before a forfeittue shall result with the right of the Grantor at its discretion to grarit such
additional time to the Grantee for compliance as ne,cessities in the case require.
S�tion 10. Failure on the part of the Crrantor to comply in substanfial respe.ct with any of
the provisions of this ordina.nce, including but not limited to: (a) denying the Grantee use of public
rights-of-way for reasons other than unreasonable interference with motor vehicular �c;
(b) im�sing conditions for use of public rights-of-wa.y contrary to Florida. law or the terms and
conditions of this fianchise; (c) unreasonable delay in issuing the Crrantee a use �rmi� if any, to
construct its facilities in public rights-of-way, shall constihrte breach of this franchise and entitle the
Grantee to withhold all or part of the payments provided for in Section 5 hereof until such time as a
use permit is issued or a court of competent jurisdiction has reached a final detennination in the
matter. The Grantor recognizes and agrees that nothing in this franchise agreement constitutes or
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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 righ�
Section 11. The Grantor may, upon reasonable notice and within 90 da.ys after each
anniversaty date of this franchise, at the Grantor's expense, examine the r�ords of the Grantee
relating to the calculalion of the franchise payment for the year preceding such anniversaty date.
Such examination shall be during normal business hours at the Grantee's office where such records
aze maintained. Records not prepared by the Crrantee in the ordina.ry course of business may be
provided at the Grrantor's expense and as the Grantor and the Grantee may agree in writing.
Information identifying the Cmantee'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 tlie Grantor whose fee, in whole or part, for conducting such audit is
contingent on findings of the audit
Gra.ntor waives, settles and bars all claims relating in any wa.y to the amounts paid by the
Grantee under the Current Franchise Agreement embodied in Ordinance No. 331.
Section 12. The provisions of this ordi.nance are interdependent upon one another, and if
any of the provisions of this ordinance aze 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 13. As used herein "person" means an individual, a pafinership, a cor�ration, 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.
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Section 14. Ordinance No. 331, passed and adopted September 11, 1984 and all other
ordinances and parts of ordinances and all resolutions and parts of resolutions in conflict herewith,
are hereby repealed.
Section 15. As a condition precedent to the taking effect of this ardinance, the Grantee
sha11 file its acceptance hereof with the Grantor's Clerk within 30 days of adoption of this
ordinance. The effective date of this ordinance shall be the da.te upon which the Grantee files such
acceptance.
PASSED on first reading this da.y of , 2014.
PASSED AND ADOPTED on second reading this da.y of
, 2013.
VII.,LAGE OF TEQUESTA, FLORIDA
By:
ATTEST:
By: (SEAL)
Village Clerk of the Village of Tequesta, Florida.
APPROVED AS TO FORM AND LEGALITY
By:
Village Attorney, Village of Tequesta, Florida
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