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HomeMy WebLinkAboutO-13169Vop City of Miami Legislation < U R �O Ordinance: 13169 File Number: 10-00179 City Hall 3500 Pan American Drive Miami, FL 33133 www.miamigov.com Final Action Date: 5/13/2010 AN ORDINANCE OF THE MIAMI CITY COMMISSION 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 CITY OF MIAMI DURING A TERM OF 30 YEARS; CONTAINING A SEVERABILITY CLAUSE, AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City Commission of the City of Miami Florida, a Florida municipal corporation (hereunder "Grantor" or "City"), recognizes that the City of Miami 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 Miami does not desire to undertake to provide such services at this time; and WHEREAS, Florida Power & Light Company (hereinafter "Grantee" or "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 Miami and FPL, the terms of which are set forth in City of Miami Ordinance No. 9472, passed and adopted September 9, 1982, and FPL's written acceptance thereof dated October 7, 1982 granting to FPL, its successors and assigns, a thirty (30) year electric franchise ("Current Franchise Agreement"); and WHEREAS, FPL and the City of Miami desire to enter into a new agreement (New Franchise Agreement) providing for the payment of fees to the City of Miami in exchange for the nonexclusive right and privilege of supplying electricity and other services within the City of Miami free of competition from the City of Miami, pursuant to certain terms and conditions; and WHEREAS, the City Commission of the City of Miami deems it to be in the best interest of the City of Miami and its citizens to enter into the New Franchise Agreement prior to expiration of the Current Franchise Agreement; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF MIAMI, FLORIDA: Each "WHEREAS" clause set forth above is true and correct and herein incorporated in this Ordinance by this reference. DEFINITIONS City of Miand Page 1 of 9 File Id. 10-00179 (Version: 4) Printed On: 7/27/2017 File Number: 10-00179 Enactment Nnmber: 13169 As used in this New Franchise Agreement, the following words and terms shall have the following meanings: City shall mean the City of Miami, Florida, a municipal corporation organized and existing under the laws of the State of Florida and also the Grantor for purposes of this Franchise. City Commission shall mean the local legislative body of the City of Miami. The City Commission is the body that approves City Franchises. City Manager shall mean the duly appointed chief administrative officer of the City of Miami. All actions of the City under this Franchise Agreement that do not specify City Commission may be performed by the City Manager or Designee. County is the largest territorial division for local government in a state. Franchise Agreement shall mean this Agreement as contained in this Ordinance, as it may hereinafter be amended or supplemented. Municipality is a legally incorporated or duly authorized association of inhabitants of limited area for local governmental or other public purposes. Parties shall mean Florida Power & Light Company and the City of Miami. 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, as customarily defined by law. Public rights-of-way are present and future roads, streets, alleys, bridges, easements, rights-of-way and other public places. Renewable energy, as defined in Fla. Stat. § 366.91, as may be amended, means electrical energy produced from a method that uses one or more of the following fuels or energy sources: hydrogen produced from sources other than fossil fuels, biomass, solar energy, geothermal energy, wind energy, ocean energy, and hydroelectric power. The term includes the alternative energy resource, waste heat, from sulfuric acid manufacturing operations. Section 1. Grant of Electric Utility Franchise; Term of Franchise. 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 Miami, Florida, and its governmental successors by operation of law if any, 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 City of Miand Page 2 of 9 File Id. 10-00179 (Version: 4) Printed On: 7/27/2017 File Number: 10-00179 Enactment Number: 13169 successors, the inhabitants thereof, and persons beyond the limits thereof. Section 2. Facilities Requirements. 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. To avoid conflicts with vehicular traffic (hereinafter "Traffic"), the location or relocation of all facilities shall be made as representatives 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 prohibit the exercise of the Grantee's right to use said public rights-of-way for reasons other than unreasonable interference with Traffic, (b) shall not unreasonably interfere with the Grantee's ability to furnish sufficient, adequate and efficient electric service to all of its customers, (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 right-of-way used by motor vehicles causes such installed facilities to unreasonably interfere with Traffic. 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 and practicable. When any portion of a public right-of-way is excavated by the Grantee in the location 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, excluding the City of Miami, and as is provided by law. Section 3. Indemnification of Grantor. 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, regardless of other easement agreements that may be or have been executed by the parties to this Franchise without hold harmless and indemnification provisions, and the acceptance of this ordinance shall be deemed an agreement on the part of the Grantee to indemnify and defend the Grantor and hold the Grantor, its officials, employees and assigns, harmless against any and all liability, loss, cost, damage, judgment, decree, action, cause of action, claim, or expense which may accrue to the Grantor by reason of the negligence, default, omission, or misconduct of the Grantee in the installation, removal, relocation, sub -lease, construction, operation or maintenance of its Facilities. Section 4. Rates, Rules and Regulations of Grantee. All rates and rules and regulations established by the Grantee from time to time shall be subject to regulation as may be provided by law. Section 5(a). Franchise Fee; Calculation; Payment. As a consideration for this Franchise, the Grantee shall pay to the Grantor the following amounts: (a) commencing 90 days after the effective date hereof, and each month thereafter for the remainder of the term of this Franchise, the Grantee shall pay 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, facilities, or operations and those of its subsidiaries during the Grantee's monthly billing period ending 60 days prior to each such payment will equal six (6%) percent of the Grantee's billed revenues, less City of Miand Page 3 of 9 File Id. 10-00179 (Version: 4) Printed On: 7/27/2017 File Number: 10-00179 Enactment Number: 13169 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 60 days prior to each such payment and in no event shall payments for the rights and privileges granted herein exceed six (6%) percent of such revenues for any monthly billing period of Grantee. For purposes of this section, the term "write-offs" refers to uncollectable billed revenues from the sale of electrical energy to residential, commercial, and industrial customers within the incorporated areas of Grantor. For the term of this franchise, Grantor waives construction permit fees for facilities which otherwise would be imposed on Grantee by the Grantor. The Grantor understands and agrees that such revenues as described in the preceding paragraph are limited to the precise revenues described therein, and that such revenues do not include, by way of example and not limited to: (a) revenues from the sale of electrical energy for 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 5(b). Increased Benefits Clause. If during the term of this Franchise the Grantee enters into a franchise agreement with any other municipality located in Miami -Dade County or Broward, County Florida, or with Miami -Dade County itself or with Broward County itself, each such municipality or county referred to herein as an "Other Governmental Entity," 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 six (6%) percent 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(a) hereof, the Grantee, upon written request of the Grantor, shall negotiate and enter into a new franchise agreement with the Grantor in which the percentage to be used in calculating monthly payments under Section 5(a) hereof shall be no greater than that percentage which the Grantee has agreed to use as a basis for the calculation of payments to any such Other Governmental Entity, provided, however, that if the franchise with such Other Governmental Entity contains additional benefits given to Grantee in exchange for the increased franchise rate, which such additional benefits are not contained in this New Franchise Agreement, such new franchise agreement shall include those additional or reasonably equivalent benefits to Grantee. Section 6. Non -Competition by Grantor. As a further consideration, during the term of this Franchise or any extension thereof, the Grantor agrees 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 presently served by the Grantee within the City limits. Grantor further agrees 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). 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. Grantor may, if permitted by law, (i) generate electric capacity and/or energy at any facility owned by the Grantor for storage or utilization at that facility or other Grantor facilities, operations or equipment, and (ii) use renewable City of Miand Page 4 of 9 File Id. 10-00179 (Version: 4) Printed On: 7/27/2017 File Number: 10-00179 Enactment Number: 13169 energy sources to generate electric capacity and/or energy for use in demonstration projects or at Grantor's facilities, including but not limited to, City Hall, the Marlins Stadium Parking Garage, and the Marlins Baseball Stadium, and (iii) sell electric capacity and/or energy to Grantee or other wholesale purchasers in compliance with applicable tariffs, and/or federal or sate laws, rules and regulations controlling such transactions. The term "retail customer," for purposes of this section, shall not include the Grantor itself. 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 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 the remainder of this Franchise's term. If the Grantee does not agree to rates, terms and conditions which equal or better the other person's offer, then Grantor may purchase such electric capacity and/or electric energy from such other person and all of the remaining terms and conditions of this franchise shall remain in effect. Section 7. Competitive Disadvantage; Grantee's Rights. If the Grantor grants a right, privilege or franchise to any other person or 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 reasonably 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 90 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 the claimed competitive disadvantage. The Grantor shall then have 90 days in which to correct or otherwise remedy the 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 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. Nothing contained herein shall be construed as constraining Grantor's rights to legally challenge at any time Grantee's determination of competitive disadvantage leading to termination under this Section 7. Section 8. Legislative or Regulatory Action. If 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 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, City of Miand Page 5 of 9 File Id. 10-00179 (Version: 4) Printed On: 7/27/2017 File Number: 10-00179 Enactment Number: 13169 the Grantee may, at any time after the taking of such action, terminate this franchise if such competitive 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 intent to terminate. Such notice shall, without prejudice to any of the rights reserved for the Grantee herein, advise the Grantor of the consequences of such action which resulted in the competitive disadvantage and the objective basis or bases of the claimed competitive disadvantage. The Grantor shall then have 90 days in which to correct or otherwise remedy the competitive disadvantage. If such competitive disadvantage is, in the reasonable determination of 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. Nothing contained herein shall be construed as constraining Grantor's rights to legally challenge at any time Grantee's determination of competitive disadvantage leading to termination under this Section 8. Section 9. Grantee's Failure to Comply. 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 competent jurisdiction within Miami -Dade County, Florida 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 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. Venue in any proceedings involving a civil action or actions between the parties under the terms of this Franchise shall be with courts of competent jurisdiction located within Miami -Dade County, Florida. Section 10. Grantor's Failure to Comply. 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 Traffic; (b) imposing conditions for use of public rights-of-way contrary to Florida law or the express terms and conditions of this franchise; (c) unreasonable delay, defined as a time beyond ninety (90) days of Grantee's submission of a complete permit application to Grantor, in issuing the Grantee a City use permit, if any, to construct its facilities in public rights-of-way, shall constitute breach of this franchise and entitle the Grantee to withhold all or a 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 determination in the matter. The Parties recognize and agree that nothing in this Franchise Agreement constitutes or shall be deemed to constitute a waiver of either party's delegated sovereign right of condemnation and that either party, in its sole discretion, may exercise such right. Section 11. Audit and Inspection. The Grantor may, upon reasonable notice and not during another scheduled Grantee franchise audit, at the Grantor's expense, examine the records 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 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 City of Miand Page 6 of 9 File Id. 10-00179 (Version: 4) Printed On: 7/27/2017 File Number: 10-00179 Enactment Number: 13169 third party employed by the Grantor whose fee, in whole or part, for conducting such audit is contingent on findings of the audit. The City will respect FPL's confidential documents. The City will be given access to confidential documents while on FPL premises, but shall not remove those confidential documents from FPL premises unless expressly authorized to do so by FPL. Information relative to this audit and likely to be deemed confidential by FPL includes, but is not limited to, nonpublic customer or customer account information, nonpublic policies and procedures, and any other nonpublic information that gives FPL an opportunity to gain an advantage over its competitors. The City will not engage the services of an auditor on a contingency fee basis in connection with this audit. The City will disclose to FPL all findings, whether favorable or not to the City. Section 12. Severability. If any clause, section, provision or other part of this Ordinance or any portion thereof shall be held invalid or unconstitutional by a court of competent jurisdiction, then said holding in no way affects the validity of the remaining portions of this Ordinance. Notwithstanding the foregoing, it is expressly provided that if any of the provisions of Sections 1, 2, 5, 6, 7, 8, 9, and 10 of this Ordinance are held invalid or unconstitutional, the Ordinance shall be null and void and of no force and effect. Section 13. Grantor acknowledges it is fully informed concerning the existing franchise granted by Miami -Dade County, Florida, to the Grantee herein, and accepted by the Grantee as set out in Ordinance No 60-16 adopted on May 3, 1960, and subsequently renewed and accepted by the Grantee as set out in Ordinance No. 89-81 adopted on September 5, 1989 by the Board of County Commissioners of Miami -Dade County, Florida. Grantor agrees to indemnify and hold Grantee harmless against any and all liability, loss, cost, damage and expense incurred by Grantee in respect of any claim asserted by Miami -Dade County against Grantee arising out of the Franchise set out in the above referenced ordinances for the recovery of any sums of money paid by Grantee to Grantor under the terms of this New Franchise Agreement. Grantee acknowledges and Grantor hereby relies on then Dade County Resolution No. R-709-78 adopted on June 20, 1978 in the granting of this franchise. Section 14. Previous Franchise. Ordinance No. 9472 passed and adopted September 9, 1982 is hereby repealed, and all ordinances and parts of ordinances in conflict herewith are hereby superseded to the extent of any such conflict. Section 15. Effective Date. As a condition precedent to the taking effect of this ordinance, the Grantee shall 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 date upon which the Grantee files such acceptance.{1 } Section 16. Notice. For the present, the parties designate the following as the respective places for giving of notice, to -wit: CITY OF MIAMI GRANTOR c/o City Manager 3500 Pan American Drive Miami, Florida, 33133 City of Miand Page 7 of 9 File Id. 10-00179 (Version: 4) Printed On: 7/27/2017 File Number: 10-00179 Enactment Number: 13169 FPL GRANTEE c/o Vice -President External Affairs 700 Universe Blvd. Juno Beach, FL 33408 Section 17. Compliance with Federal, State and Local Laws. FPL understands that agreements between private entities and local governments are subject to certain laws and regulations, including laws pertaining to public records, conflict of interest, and recordkeeping. City and FPL agrees to comply with and observe all applicable Federal, State and local laws, rules, regulations, Codes and Ordinances, as they may be amended from time to time. Section 18. Nondiscrimination. FPL represents and warrants to the City that FPL does not and will not engage in discriminatory practices and that there shall be no discrimination in connection with FPL's performance under this Franchise on account of race, color, sex, religion, age, handicap, marital status or national origin. FPL further covenants that no otherwise qualified individual shall, solely by reason of his/her race, color, sex, religion, age, handicap, marital status or national origin, be excluded from participation in, be denied services, or be subject to discrimination under any provision of this Franchise. Section 19. Governing laws. This Agreement shall be governed by applicable laws of the Federal Government, State of Florida, Miami -Dade County and the Codes and Ordinances of the City of Miami. Section 20. No Rights to City's Employment Benefits. Grantee shall not attain, nor be entitled to, any rights or benefits under the Civil Service or Pension Ordinances of the Grantor, nor any rights generally afforded classified or unclassified employees. Grantee further understands that Florida Workers' Compensation benefits available to employees of the Grantor are not available to Grantee's employees or agents. Section 21. Entire Agreement. This Franchise Agreement and its attachments constitute the sole and only AGREEMENT of the parties relating to the subject matter hereof and correctly sets forth the rights, duties, and obligations of each of the other as of its date. Any prior Agreements, promises, negotiations, or representations not expressly set forth in this Agreement are of no force or effect. Both parties were represented by counsel with regard to this Agreement. Section 22. Modification. It is further understood that no modification, amendment or alteration in the terms or conditions contained herein shall be effective unless contained in a written document executed with the same formality and of equal dignity herewith, and approved by the City Commission. Section 23. Approval of Agreement. Execution of this Agreement by the City Manager, City Attorney, City Clerk, and Risk Management Administrator, shall constitute evidence of its approval after public hearing by the City Commission.{2} Footnotes: City of Miami Page 8 of 9 File Id. 10-00179 (Version: 4) Printed On: 7/27/2017 File Number: 10-00179 Enactment Number: 13169 {1} This Ordinance shall become effective as specified herein unless vetoed by the Mayor within ten days from the date it was passed and adopted. If the Mayor vetoes this Ordinance, it shall become effective immediately upon override of the veto by the City Commission or upon the effective date stated herein, whichever is later. {2} The herein authorization is further subject to compliance with all requirements that may be imposed by the City Attorney, including but not limited to those prescribed by applicable City Charter and Code provisions. City of Miand Page 9 of 9 File Id: 10-00179 (Version: 4) Printed On: 7/27/2017