Loading...
HomeMy WebLinkAboutDraft Settlement AgreementRev DRAFT Date 07/18/17 NEW UNDERGROUND TRANSMISSION FACILITIES CONSTRUCTION AND CONTRIBUTION AGREEMENT THIS NEW UNDERGROUND TRANSMISSION FACILITIES CONSTRUCTION AND CONTRIBUTION AGREEMENT ("Agreement") made and entered into as of the date last signed below ("Effective Date"), by and between the CITY OF MIAMI, FLORIDA, a Florida municipal corporation (the "City") and FLORIDA POWER & LIGHT COMPANY, a Florida corporation ("FPL"). FPL and the City will each be referred to as a "Party" and will collectively be referred to as the "Parties." Recitals: A. FPL has determined a need to construct, operate and maintain new Transmission Facilities (as hereinafter defined) in order to maintain its reliability and anticipated customer growth in the City's jurisdiction. FPL's standard construction for such facilities is overhead. B. The Transmission Facilities will connect FPL's Coconut Grove substation to an existing 138 kilovolt ("kV') underground transmission line between FPL's Miami substation and FPL's Key Biscayne substation as shown in the Route (as hereinafter defined). C. The City has requested that the Transmission Facilities be placed underground. D. FPL's policy is to require municipalities that request underground transmission facilities to make a cost contribution for the additional cost that FPL incurs as a result of undergrounding. E. FPL will incur additional costs in the design and construction of the Transmission Facilities underground, which costs would not have been incurred but for the City' s request. F. By leveraging and expanding existing FPL infrastructure along the Route, however, FPL will be able to install the new Transmission Facilities underground in a manner that meets FPL's reliability needs at a considerably lower cost contribution from the City. G. Subject to the terms of this Agreement, FPL has agreed to install the Transmission Facilities underground using the approach described in the foregoing recital, and the City has agreed to reimburse FPL for the additional costs related to said installation. In consideration of the mutual promises of the City and FPL and other good and valuable consideration, the sufficiency of which is acknowledged, the Parties agree as follows: 1 DRAFT Rev DRAFT Date 07/18/17 ARTICLE I — DEFINITIONS For the purposes of this Agreement the following terms, whether used in the singular or plural, shall have the meanings set forth below when used with initial capitalization: "Carrying Costs" has the meaning set forth in Article V. "Change" means any scope change or modification to all or a portion of the Scope of Work. "City ROW' means, with respect to the route of the Transmission Facilities, any road right-of- way owned by or under the jurisdiction of the City. "Contribution Cost Amount" has the meaning set forth in Section 2.1 "Engineering Deposit Amount" means $250,000.00 USD. "Fixed Contribution Amount" means an amount not to exceed $27,000,000.00 USD, which represents the City's contribution to the cost of the Project. The actual amount may be less, but shall in no event exceed $27,000,000.00 USD. This amount does not include additional costs, including mobilization and demobilization costs, resulting from events beyond the control of the contractor or FPL, including but not limited to hurricanes, uncovering contaminated soils or archeological finds. "FPL Entities" means FPL, its parent, subsidiaries, affiliated companies of NextEra Energy, Inc. and its subcontractors, and their respective officers, directors, agents and employees. "Job Site" means the real property in the City of Miami, Florida on which the underground Transmission Facilities will be located or Scope of Work will be performed under this Agreement, including any laydown or storage areas, as more particularity described in the Route. "Other ROW' means, with respect to the route of the Transmission Facilities, any road right-of- way owned by or under the jurisdiction of a governmental authority or agency other than the City. "Project" means the Transmission Facilities to be located in the City of Miami and the Scope of Work, as more particularly described in this Agreement. "Route" means the route for the Project set forth in Exhibit A attached hereto. "ROW' means, collectively, any City ROW and any Other ROW. "Scope of Work" means the services and work to be performed by or through FPL or its subcontractors, as more particularly described in the Route, and which includes, without limitation, all permanent or temporary support, protection, relocation, rearrangement, design, redesign, construction and installation of the Transmission Facilities underground and all other work (including any FPL overhead costs and expenses) required to provide continuity of service 2 DRAFT Rev DRAFT Date 07/18/17 to FPL' s customers, and any other activities for the execution and completion of FPL' s obligations under this Agreement. "Transmission Facilities" means the new 138 kV transmission facilities, as more particularly described in the Route. "Withdrawn Claims" has the meaning set forth in Article VI. ARTICLE II — CONTRIBUTION AMOUNTS, CHANGES AND BILLING 2.1 Contribution Amount. The City shall be responsible for the agreed upon shared cost contribution of the Project. FPL acknowledges receipt of the Engineering Deposit Amount, which occurred prior to the Effective Date to perform certain engineering work necessary for the Project. The remaining cost the City is obligated to contribute to FPL to perform the Scope of Work is determined by calculating the difference resulting from subtracting the Engineering Deposit from the Fixed Contribution Amount (such resulting difference is referred to as the "Contribution Cost Amount"), plus any applicable Changes. 2.2 Changes. Upon receipt of any Change request by the City, FPL will evaluate whether such Change request will have a cost impact to complete the Scope of Work. If FPL determines that there would be a cost impact to the Scope of Work as a result of the requested Change, then the Parties agree to work in good faith to reach mutual agreement on any such cost impact. If the Parties are able to agree on the cost impact and the adjustment to the Scope of Work, then after the Parties enter into an amendment to this Agreement adjusting the Scope of Work and FPL receives payment from the City for incorporating such Change within the Scope of Work, FPL agrees to proceed with the Scope of Work as adjusted to incorporate such Change. 2.3 Billing and Payment. The City shall pay FPL the Contribution Cost Amount, plus any applicable Changes, if any, as follows: (i) Concurrently with execution of this Agreement subject to the provisions in Article V hereof: Three Million, Seven Hundred Fifty Thousand Dollars and No Cents ($3,750,000.00); ($4,000,000.00 minus $250,000.00 equals $3,750,000.00); (ii) 50% of the balance due (Ten Million, Three Hundred Thousand Dollars and No Cents ($10,300,000.00)) six (6) months prior to the commencement of construction, such payment date currently projected to be on or about July 1, 2018; and (iii) All remaining amounts owed (Ten Million, Three Hundred Thousand Dollars and No Cents ($10,300,000.00)) (plus any Changes, if any) due thirty (30) days prior to commencement of construction, such payment date currently projected to be on or about December 1, 2018. 3 DRAFT Rev DRAFT Date 07/18/17 Any other amount due FPL under this Agreement by the City, which may include, without limitation, any applicable Changes following commencement of the Scope of Work at the Job Site, shall be due and payable by the City within thirty (30) days of the date of FPL' s invoice. [The payment amounts and projected payment dates are estimates and subject to change until this Agreement in final form is executed by the parties.] ARTICLE III — DESIGN AND CONSTRUCTION OF FACILITIES 3.1 Design Standards. Engineering design standards and material specified will meet and comply with FPL's then current design standards. 3.2 Construction Standards. Materials and construction procedures will meet and comply with FPL's then current construction standards. 3.3 City Permits. The City will support and facilitate prompt permit review and issuance for permits provided by the City, provided that it is understood that if FPL or its contractor files a permit application that fully complies with all applicable laws and regulations, the City will issue such permit to FPL or its contractor within thirty (30) days of such application approving such permit for the Scope of Work for the Project. Any additional costs incurred by FPL as a result of any delay of issuance of City permits that affect FPL's or its contractors' ability to commence and/or complete the Project will be borne exclusively by the City and the City shall be responsible for reimbursing FPL for all such costs, except if the delay results from events beyond the control of the City. Exhibit C contains certain permit conditions agreed to by the City and FPL with respect to the Scope of Work. 3.4 Local Content. FPL agrees to use reasonable efforts to utilize local subcontractors in the performance of the Scope of Work, provided that FPL determines that (i) any such use of a particular local subcontractor are cost competitive and schedule effective with respect to the Project, and (ii) the particular local subcontractor are capable of satisfying FPL's standards, requirements and guidelines. 3.5 Ownership of Transmission Facilities. It is understood and agreed by the Parties that FPL shall retain all right, title and interest in and to the Transmission Facilities. ARTICLE IV — EASEMENT/RIGHT-OF-WAY 4.1 Easement. The City shall convey or grant to FPL utility easements and access easements using the FPL standard form, sufficient to permit FPL to accomplish the Scope of Work and to operate and maintain the Transmission Facilities in accordance with FPL's customary practices. Such grants of easements shall be accomplished at no cost to FPL. FPL's standard form of utility easement and access easement is attached in Exhibit B hereto. 4 DRAFT Rev DRAFT Date 07/18/17 4.2 Right of Way. 4.2.1 If the City, or other government authority or agency with control over the City ROW or Other ROW, for any reason whatsoever, requires that FPL relocate or arrange, in whole or in part, any or all of the Transmission Facilities (as they are to exist as a result of this Project, or as they may later be modified, upgraded, or otherwise altered) from or within the City ROW or Other ROW, the City, notwithstanding any language to the contrary in any applicable permit or franchise agreement, and prior to any such relocation by FPL, shall provide FPL with a substitute location, satisfactory to FPL to obtain any easement that may be necessary, and shall, subject to Section 4.2.4, pay FPL for the costs of any such relocation, adjustment or rearrangement, now or in the future. The City shall reimburse FPL for all costs to locate, expose, protect or support the Transmission Facilities, whether underground or above ground, in the event of future construction or excavation in close proximity to the Transmission Facilities, when such services are required by the City or other government authority or agency with control over the City ROW or Other ROW. The City shall use its best efforts in any design and construction of its future road improvement projects to avoid or mitigate the necessity of relocating or adjusting the Transmission Facilities in the City ROW and, to the extent reasonably practicable, in any Other ROW. 4.2.2 The City shall only be responsible for relocation costs associated with replacement facilities conforming to FPL standards in effect at the time of relocation. Any costs associated with the replacement facilities to provide increased capacity, improved reliability, future use facilities, or other such enhancements over and above the FPL standards in effect at the time of the relocation shall not be the responsibility of the City. 4.2.3 FPL shall be responsible for any and all costs of removal or relocation when such removal or relocation is initiated by FPL. Additionally, FPL agrees that when any portion of a street is excavated by FPL in the location, relocation or repair of any of its facilities when said location, relocation or repair is initiated by FPL, the portion of the street so excavated shall, within a reasonable time and as early as practical after such excavation, be replaced by FPL at its expense in a condition as good as it was at the time of such excavation. 4.2.4 If the City desires to subsequently abandon or discontinue use of the City ROW, and ownership of the land is transferred to a private party, the City, as a condition of and prior to any such sale, abandonment, or vacation, shall grant FPL an easement satisfactory to FPL for the Transmission Facilities then existing within the ROW or require and cause the transferee to so grant FPL an easement satisfactory to FPL at the time of transfer. If ownership of the City ROW is transferred to another government authority or agency, the City shall 5 DRAFT Rev DRAFT Date 07/18/17 cause that government authority or agency to take the ROW subject to the terms and conditions of this Agreement. ARTICLE V — CONDITION PRECEDENT The parties acknowledge that performance of this Agreement (except for the payment obligation under Section 2.3(i)) is conditioned upon timely receipt of all necessary approvals, including but not limited to approvals from Miami -Dade Transit, the Florida Department of Transportation, and the United States Department of Transportation with respect to the Project and the current route. In the event of significant delay in obtaining any of the necessary approvals which result in delay in commencement of the Scope of Work under FPL' s project schedule, FPL agrees to reimburse the City (through credits against subsequent payments by the City) its Carrying Costs (as hereafter defined) on the initial payment for the duration of the delay until the commencement of the Scope of Work, provided that FPL' s obligation to reimburse the City for such Carrying Costs shall not commence until sixty (60) days following the day on which FPL estimated, under its project schedule, that the Scope of Work would commence as reflected in Section 2.3 herein. Further, City agrees to cooperate with FPL and provide reasonable support as necessary in obtaining the necessary approvals. If FPL is unable to obtain any or all of the necessary approvals and the Agreement terminates pursuant to Section 8.3 herein, FPL shall reimburse the City its Carrying Costs within sixty (60) days of the termination of this Agreement. "Carrying Costs" as used herein, shall be limited to the interest payments made by the City on bonds used by the City to fund the initial payment made by the City under this Agreement. ARTICLE VI— CITY'S WITHDRAWAL OF OPPOSITION AND LITIGATION In addition to the City' s payment obligations in regards to the Project set forth in Article II, as consideration for FPL' s performance of its obligations under this Agreement, the City agrees to promptly (but in no event later than [151 calendar days after the Effective Date) withdraw from all of the following FPL-related litigation or administrative proceedings (collectively, the following three enumerated matters being referred to as a "Withdrawn Claims"): 1) In re: Florida Power & Light Company, Turkey Point Units 6 & 7 Combined License Application; Docket Nos. 52-040-COL; 52-014-COL Nuclear Regulatory Commission 2) Florida Power & Light Company Nuclear Cost Recovery Clause, Docket No. 170009-EI Florida Public Service Commission 3) Florida Power & Light Company, Turkey Point Units 6 & 7 Power Plant Siting Application, No. PA 03-45A3 State of Florida Siting Board 6 DRAFT Rev DRAFT Date 07/18/17 The City does hereby waive, release, remise and relinquish all actions, claims and demands, of any kind whatsoever, which the City ever had or then has, known or unknown, against FPL in connection with the Withdrawn Claims. Further, City agrees to refrain from intervening or participating in any capacity (i) in any FPL-related regulatory proceedings currently pending at the Florida Public Service Commission as of the Effective Date of this Agreement; and (ii) in any currently pending FPL-related regulatory proceeding in any other state or federal agency as of the Effective Date of this Agreement. Exhibit D contains a list of currently pending FPL- related regulatory proceedings. The City acknowledges and agrees that notwithstanding anything to the contrary in this Agreement (i) the cost to perform the Scope of Work and (ii) FPL's obligations under this Agreement are conditioned upon the City' s compliance with this Article. ARTICLE VII — INDEMNIFICATION, LIMITATION OF LIABILITY, AND INSURANCE 7.1 Indemnification. The City shall in no way be liable or responsible for any accident or damage that may occur in the construction, operation or maintenance by FPL of the Transmission Facilities, regardless of other easement agreements that may be or may have been executed by the Parties without hold harmless or indemnification provisions. FPL shall indemnify and defend the City and hold the City, 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 City by reason of the negligence, default, omission, or misconduct of FPL, its contractors, or subcontractors, in the installation, removal, relocation, sublease, construction, operation or maintenance of the Transmission Facilities. 7.2 Insurance. FPL or its Contractor(s) shall, at all times during the term hereof, maintain such insurance coverage(s) as may be required by the City. The insurance coverage(s) required as of the Effective Date of this Agreement are attached hereto as Exhibit E. FPL or its Contractor(s) shall add the City of Miami as an additional insured to its commercial general liability, and auto liability policies, and as a named certificate holder on all policies. FPL or its Contractor(s) shall correct any insurance certificates as requested by the City's Risk Management Administrator. All such insurance, including renewals, shall be subject to the approval of the City for adequacy of protection and evidence of such coverage(s) and shall be furnished to the City Risk Management Administrator on Certificates of Insurance indicating such insurance to be in force and effect and any cancelled or non -renewed policy will be replaced with no coverage gap and a current Certificate of Insurance will be provided. Completed Certificates of Insurance shall be filed with the City prior to the performance of Services hereunder, provided, however, that Contractor shall at any time upon request file duplicate copies of the Certificate of Insurance with the City. FPL may self -insure in accordance with the terms of its Evidence of Insurance letter to the City, dated July 6, 2017 and included as an attachment within Exhibit E. 7 DRAFT Rev DRAFT Date 07/18/17 ARTICLE VIII — TERMINATION 8.1 Term. The Agreement shall commence upon the Effective Date and shall continue in effect until completion of the Scope of Work, unless terminated earlier as set forth in Section 8.2 and 8.3. 8.2 Payment Default. If (i) the City fails to pay FPL any amount under this Agreement, then such failure shall be deemed a material event of default, and (ii) the City fails to cure such material event of default within sixty (60) days after notice thereof from FPL, then FPL may, and without prejudice to any remedy available to FPL under law, in equity or under this Agreement, (a) terminate the Agreement without termination charge, penalty or obligation, or (b) complete the Scope of Work, in which case, FPL shall be entitled to seek specific performance of the City' s obligations to remit all outstanding amounts owed to FPL pursuant to this Agreement. 8.3 Necessary Approvals: If FPL fails to obtain any or all necessary of the necessary approvals required to commence the Scope of Work within five (5) years of the Effective Date, the City may terminate the Agreement without termination charge, penalty or obligation and FPL shall reimburse the City all payments made under this Agreement, and all Carrying Costs as required under Article V, excluding only the Engineering Deposit Amount. ARTICLE IX — GENERAL CONDITIONS 9.1 Benefit of Agreement; Assignment. The provisions of this Agreement shall inure to the benefit of and bind the successors and assigns of the Parties to this Agreement but shall not inure to the benefit of any third party or other person. This Agreement shall not be assigned by the City, except upon receipt of the prior written permission of FPL. 9.2 Non -waiver. The failure of either Party at any time to require performance by the other Party of any provision hereof shall not affect the full right to require such performance at any time thereafter. Waiver by either Party of a breach of the same provision or any other provision shall not constitute a waiver of the provision itself. 9.3 Modification of Agreement. This Agreement may be modified, amended, or terminated at any time by written agreement of the Parties authorized and executed with the same formality as this Agreement. 9.4 Effect of Headings. The headings set forth herein are for convenience only and shall not be deemed to modify or affect the rights and obligations of the Parties to this Agreement. 9.5 Delegation of Power and Duties Notice. The following persons are designated as the authorized representatives of the Parties for the purposes of this Agreement and all notices or other communications to either Party by the other shall be made in writing and addressed as follows: 8 DRAFT Rev DRAFT Date 07/18/17 To the City: Daniel J. Alfonso City Manager City of Miami 444 SW 2nd Avenue Miami, Florida 33130 To FPL: Vice President, External Affairs Florida Power & Light Company 700 Universe Boulevard Juno Beach, Florida 33408 If the mailing address for either Party changes during the term of this Agreement, it shall be that Party' s responsibility to notify the other Party promptly of the new address, and the old address shall remain effective for the purposes of this Agreement, or any renewal thereof, until notice of the address change has been received by the other Party. All notices shall be delivered in person; by courier service (e.g., United Parcel Service and FedEx); by registered mail or certified mail; or by U.S. Mail, postage prepaid, in which case receipt shall be deemed effective three (3) business days after postmark. 9.6 Severability. In the event that any of the provisions or portions or applications thereof of this Agreement are held to be unenforceable or invalid by a court of competent jurisdiction, the City and FPL shall negotiate an equitable adjustment in the affected provisions of this Agreement. The validity and enforceability of the remaining independent provisions shall not be affected. 9.7 Law, Jurisdiction, Venue, Waiver of Jury Trial. This Agreement shall be interpreted and construed in accordance with and governed by the laws of the State of Florida. In the event of litigation arising hereunder, the Parties agree that the venue for such litigation shall be the courts of the State of Florida located in Miami, Florida. The Parties irrevocably waive any objection, which any of them may now or hereafter have to the bringing of any such action or proceeding in such respective jurisdictions, including any objection to the laying of venue based on the grounds of forum non conveniens and any objection based on the grounds of lack of in personam jurisdiction. BY ENTERING INTO THIS AGREEMENT, THE CITY AND FPL HEREBY EXPRESSLY WAIVE ANY RIGHTS EITHER PARTY MAY HAVE TO A TRIAL BY JURY OF ANY CIVIL LITIGATION RELATED TO THIS AGREEMENT OR IN ANY WAY CONNECTED WITH THE PROJECT OR THE PERFORMANCE OF THE SCOPE OF WORK. 9.8 Project Specific Nature of Agreement; Complete Agreement. The Parties acknowledge that this Agreement (inclusive of Exhibits A, B C, D and E, which are incorporated by this reference) is project specific to the Project only. This Agreement shall be signed by the authorized representatives of both Parties and constitutes the final written expression of all the terms of the agreement between the Parties and is a complete and exclusive statement of those terms. It is understood and agreed by the Parties that any and all prior 9 DRAFT Rev DRAFT Date 07/18/17 or contemporaneous course of dealing, representations, promises, warranties or statements by the Parties or their agents, employees, or representatives that differ in any way from the express terms contained this Agreement shall be given no force or effect. 9.9 Survival. Articles II, VI and VII, and Sections 3.5, 9.8 and 9.10 shall survive the termination or expiration of the Agreement. Those provisions of the Agreement which provide for the limitation of or protection against liability shall apply to the full extent permitted by law and shall survive termination of this Agreement and/or completion of the Scope of Work. 9.10 Turkey Point 6 & 7 Representation. If the Project is completed, along with the completion of the additional transmission facilities covered under that certain Agreement for the Coconut Grove Injection Transmission Project dated as of [ ], 2017, between FPL and the City, FPL represents to the City that the transmission line circuits within the city sought by FPL to be approved in the proceeding entitled Florida Power & Light Company Turkey Point Units 6 and 7 Power Plant Siting Application No. PA 03-45A3 will no longer be required to deliver electricity from FPL's Turkey Point 6 and 7 nuclear generation projects, if and when built. Further, FPL agrees to not install additional overhead transmission facilities along the US-1 portion of the Route or proposed route for a period of ten (10) years from the Effective Date of this Agreement, except for crossings of US-1 and other short distances if FPL is unable to cross US-1 in a straight line or if required to serve a new distribution substation because of increased load in the area. Further, FPL and the City expressly acknowledge FPL's voluntary stipulation made in State of Florida Division of Administrative Hearings Case No. 09-357 SEPP, found at Hearing Transcript Volume XIV, pages 9138 (lines 20-25) and 1939 (lines 1-10). 9.11 Counterparts. The Agreement may be executed in multiple counterparts, each of which shall constitute an original, but all of which together shall constitute one and the same instrument. It is also agreed that the facsimile or electronic signature of either Party shall be binding upon the same as if signed in original. The signatories below warrant and represent that they are authorized to execute the Agreement. [Remainder of Page Left Intentionally Blank; Signatures Appear on Following Pages] 10 DRAFT Rev DRAFT Date 07/18/17 IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized officers as of the Effective Date. Florida Power & Light Company City of Miami, Florida By: By: Name: Name: Title: Title: Date: Date: 11 DRAFT Rev DRAFT Date 07/18/17 EXHIBIT A TO NEW UNDERGROUND TRANSMISSION FACILITIES CONSTRUCTION AND CONTRIBUTION AGREEMENT DESCRIPTION OF THE ROUTE Rev DRAFT Date 07/18/17 EXHIBIT B TO NEW UNDERGROUND TRANSMISSION FACILITIES CONSTRUCTION AND CONTRIBUTION AGREEMENT FORM OF FPL UTILITY EASEMENT Rev DRAFT Date 07/18/17 EXHIBIT C TO NEW UNDERGROUND TRANSMISSION FACILITIES CONSTRUCTION AND CONTRIBUTION AGREEMENT PERMIT CONDITIONS/WORK RESTRICTIONS Rev DRAFT Date 07/18/17 EXHIBIT D TO NEW UNDERGROUND TRANSMISSION FACILITIES CONSTRUCTION AND CONTRIBUTION AGREEMENT LIST OF CURRENTLY PENDING APPLICABLE FPL REGULATORY PROCEEDINGS Rev DRAFT Date 07/18/17 EXHIBIT E TO NEW UNDERGROUND TRANSMISSION FACILITIES CONSTRUCTION AND CONTRIBUTION AGREEMENT INSURANCE COVERAGE