HomeMy WebLinkAbout690-98 Withlacoochee River Electric Franchise I
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ORDINANCE NO. 690
AN ORDINANCE OF THE CITY COUNCIL OF ZI
0 CI 11
THE CITY OF ZEPHYRHHLLS, FLORIDA, 0 rt
GRANTING 'TO WITHLACOOCHEE RIVER m o tO
ELECTRIC COOPERATIVE, INC., A NON- o8
EXCLUSIVE ELECTRIC UTILITY FRANCHISE,
TO OCCUPY MUNICIPAL STREETS AND
RIGHTS-OF-WAY IN THE CITY OF .. °°
ZEPHYRBILLS, FLORIDA, FOR THE PURPOSE d
ID
OF PROVIDING ELECTRIC AND POWER oNI
SERVICES; PRESCRIBING THE TERMS AND ,coo
CONDITIONS ACCOMPANYING'1'HI: GRANT OF 1
FRANCHISE; PROVIDING FOR SEVERABILITY
OF PROVISIONS; AND PROVIDING AN
EFFECTIVE DATE. RIM
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BE IT ORDAINED by the City Council of the City of Zephyrhills, Florida, sitting in regular 6 jiT-4
session, as follows: µrz
SECTION 1: Findings. i"1.'`
oU7
(A) The Grantor deems it necessary, desirable and in the best interest of its citizens to �o
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establish by ordinance a franchise granting to Grantee the permission to occupy Rights-of-Way in the c E
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City of Zephyrhills,Florida, for the purpose of providing electric services. °D"<
(B)-The Grantee is willing to undertake the installation and operation of its electric utility j' m
facilities under a franchise from Grantor.
SECTION 2: Short Title.
This Ordinance shall be known and may be cited as the "Withlacoochee River Electric
Cooperative, Inc., Franchise".
SECTION 3: Definitions.
For the purposes of this Ordinance,the following terms, phrases, words, and their derivations
shall have the meaning given herein. When not inconsistent with the context, words in the present
tense include the future, words in the plural number include the singular number, and words in the
singular number include the plural number. The word "shall" is always mandatory and not merely
directory.
(A) "Grantor"-The City of Zephyrhills, Florida.
(B) "Grantee"-Withlacoochee River Electric Cooperative, Inc., its successors and assigns.
(C) "Electric Utility System"-An electric power system installed and operated in the Franchise
' Area in accordance with the applicable provisions of Rural Utilities Service, an agency of the United
States Department of Agriculture, and the provisions of the Florida Public Service Commission
establishing technical standards, service areas,tariffs and operating standards, which shall include but
not be limited to electric light, heat, power, and energy,facilities, and a generation, transmission,
and distribution system,with such extensions thereof and additions thereto as shall hereafter be made.
(D) "Franchise Area"-That area for which Grantee provides Electric Utility Service which is
within the corporate city limits of the Grantor.
Record and Return to: ::
City Clerk's Office = ,
5335 8th Street .,-:,C
Zephyrhills, FL ' 33540 4 '
OR BK 391 1 PG 124-5
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(E) "Base Revenues"-Revenues from the sale of electricity, net of customer credits, and as
calculated in accordance with the municipal public tax authorized by Section 166.231, Florida
Statutes, to residential, commercial, and industrial customers and City sponsored street lighting all
within the corporate limits ofthe.City...
(F) "Person"-Any person, firm, partnership, association, corporation, company or
organization of any kind.
(G) "Rights-of-Way"-All of the public streets, alleys, highways, waterways, bridges,
easements, sidewalks and parks of the City, as they now exist or may be hereafter constructed,
opened,laid out or extended within the present limits of the City, or in such territory as may hereafter
be added to, consolidated or annexed to the City.
(H) "Retail Wheeling"-A customer/supplier arrangement whereby an electric energy provider
utilizes transmission and/or distribution facilities of Grantee to make energy sales directly to an end
use customer located within the Franchise Area.
(I) "Adversely Affected"- For the Grantee, a loss of one percent (1%) of Base Revenues
within the corporate city limits due to Retail Wheeling. For the Grantor, a loss of one percent(1%)
of franchise fees due to Retail Wheeling.
SECTION 4: Grant of Authority.
(A)There is hereby granted by Grantor,to Grantee,the right and privilege to construct, erect,
operate, own and maintain, in, upon, along, across, above, over and under Rights-of-Way now laid
out or dedicated, and all extensions thereof, and additions thereto in the corporate city limits, poles,
wires, cables,underground conduits, manholes, fiber optic cable for its own use and other fixtures
necessary or proper for the maintenance and operation of its Electric Utility System, provided that
all portions of the same shall conform to the National Electrical Safety Code. This Franchise is
awarded subject to the provisions of general or special laws of Florida now existing or hereinafter
enacted. This grant of authority is limited to the provision by Grantee of electric utility services.
Grantee agrees that without the prior written permission of Grantor, it will not allow any entity
providing a wireless communication system to acquire rights to occupy Rights-of-Way under this
Franchise. In the event Grantee desires to use its existing facilities, or construct new facilities, in
order to provide public communications, leased fiber optic capacity, or video services to existing or
potential consumers, Grantee must obtain additional and separate permission from Grantor for such
activities.
(B) Annexation or Contraction. Grantee agrees that the Franchise Area is subject to
expansion or reduction by annexation and contraction of municipal boundaries. If Grantor approves
any Franchise Area expansion or reduction by annexation or contraction, Grantor will provide written
notice to Grantee, which shall include a map reflecting the annexation or contraction with
corresponding Florida State Grid coordinates, the township and ranges and a residential, industrial
and commercial address listing. Grantee must revise its payments due to any expansion or reduction
by annexation within a reasonable time after notice to Grantee,but no later than sixty(60) days after
receipt of notice.
OR BK .39 136 12 4&
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(C) Non-Exclusive Use. The right to use and occupy Rights-of-Way for the purposes herein
set forth shall be non-exclusive and the Grantor reserves the right to grant a similar use of said
Rights-of-Way, to any person at any time during the period of this Franchise,so long as such grant
does not materially and adversely impact Grantee's right to use and occupy Rights-of-Way as
aforesaid.
(D) Non-Compete. As a further consideration of this franchise, the Grantor agrees not to
engage in the business of generating,transmitting or distributing and selling electricity during the term
of this franchise or any extension thereof in competition with the Grantee.
SECTION 5: Term of Franchise.
(A)Except as otherwise provided herein, the Franchise and rights herein granted shall take
effect and be in force from and after the final passage hereof, as required by law and upon the filing
of an acceptance by Grantee of all the terms thereof with the Grantor and shall continue in force and
effect for a term of thirty(30)years after the effective date of this Franchise ordinance.
(B) However, if in the event the appropriate governmental authorities authorize Retail
Wheeling, then, either party, if Adversely Affected thereby, may reopen this ordinance upon thirty
(30) days written notice to the other for the sole purpose of addressing franchise fee payments
between Grantee and Grantor.
If the parties are unable to agree within ninety (90) days of reopening, either party may
declare an impasse and may file an action in the Circuit Court in Dade City, Pasco County, Florida
for declaratory relief as to the proper franchise fee in light of Retail Wheeling.
(C) Each party shall bear its own costs in such a proceeding. During the pendency of any
negotiations pursuant to the reopener or any declaratory action arising therefrom the current franchise
payment as set forth in Section 6 shall continue to apply. Provided, however, if as a result of such
negotiations or any declaratory action arising therefrom, a different franchise payment is determined,
that new franchise payment shall apply retroactively to the first full month following the date this
ordinance is reopened and the parties shall balance their accounts accordingly.
(D) In all events, Grantor shall not grant more favorable treatment to providers of Retail
Wheeling than is granted to Grantee under this ordinance, it being the intent of the parties that no
future provider of electric service,be it generation, transmission or distribution service, to customers
within the corporate limits of Grantor shall be given a competitive advantage over Grantee.
SECTION 6: Payment to Grantor.
(A) Effective the first day of the second month beginning after the effective date of this
ordinance, Grantor shall be entitled to receive from.Grantee a monthly franchise amount which will
equal six percent(6%) of Grantee's Base Revenues for the preceding month which amount shall be
the total compensation due Grantor for the rights, authority and privileges granted by this Franchise.
(B)Payment shall be made to the Grantor for each month no later than the twentieth(20th)
day of the following month. The monthly payment may be made by wire transfer. Any monthly
payment or any portion thereof received twenty (20) days after the due date shall be subject to
interest at the rate of 10% percent per annum until all payments are paid in full. . . .
OR BK PG 124 7
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SECTION 7: Favored Nations.
(A)In the event Grantee shall hereafter accept an electric utility franchise ordinance from any
municipality providing for the payment of a franchise fee in excess of the amount provided..The
Grantor reserves the right to amend this Franchise to require.the Grantee to pay the Grantor such
additional franchise fees.
(13)In no event shall Grantor receive a franchise fee that is less, in terms of percentage and/or
Base Revenues,than any other governmental entity within Grantee's service area, except that, in the
event Grantor shall hereafter grant a utility franchise to any other energy supplier providing for the
payment of a franchise fee less than the amount provided for in Section 6 above, then Grantor shall
be obligated to accept an amendment of this ordinance providing for a decrease in the franchise fee
to such lesser amount.
SECTION 8: Rates and Services Provided.
The rates to be charged and services provided by the Grantee for electric service within the
corporate limits of Grantor during the term of this franchise shall be as provided in the Grantee's
tariffs now or hereafter approved.
SECTION 9: Character of Service.
Grantee agrees that the materials to be used in the construction, operation and maintenance
of the electric distribution system and the service to be rendered thereby shall be in every respect
equal to those provided to Grantee's other franchised communities.
SECTION 10: Indemnification.
(A)Grantor shall in no way be liable or responsible for any accident or damage-that-inay occur
111
in the construction, operation or maintenance by Grantee of its facilities thereunder, and the
acceptance of this franchise by Grantee shall be deemed an agreement on the part of the Grantee to
indemnify Grantor and hold it harmless against any and all liability, loss, cost, damage or expense
which Grantor may incur by reason of the neglect, default, or misconduct of Grantee in the
construction, operation, or maintenance of its electric utility facilities thereunder.
(B) Grantee shall maintain throughout the term of this Franchise sufficient insurance or
financial resources to provide self insurance insuring the Grantor and Grantee with regard to all
damages set forth in Section 10 (A)in the minimum amounts of:
(i) $1,000,000 for bodily injury or death to a person;
(ii) $3,000,000 for bodily injury or death resulting from any one accident;
(iii) $50,000 for property damage resulting from any one accident; and
(iv) $1,000,000 for all other types of liability.
(C) Grantee must submit on an annual basis, when submitting its annual audited financial
report, a certificate of insurance naming the City of Zephyrhills as an additional insured, or
documentation that clearly demonstrates that it has accumulated sufficient financial resources in order
to provide insurance coverage as indicated in Section 10(B) above.
SECTION 11: Approval ofTransfer.
(A)The rights and privileges granted by this Franchise shall not be sold, or assigned in whole
or in part without the Grantor's prior written approval; however, such consent shall not be
• • . OR BK 3 1 i PG 124.8
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unreasonably withheld. No such sale or assignment shall be effective until the vendee or assignee has
filed with the Grantor an instrument, duly executed,reciting the fact of such sale, or assignment and
agreeing to perform all the'conditions thereof.
(B) Grantee shall annually submit to Grantor, Attention: City Clerk's Department, a copy of
its Audited Annual Financial Report upon its normal issuance of same. By acceptance of this
Franchise,the Grantee specifically agrees that in the event of any violation of this Section, after thirty
(30) days written notice and an opportunity for Grantee to cure, Grantor may cause the Franchise
granted herein to be terminated.
SECTION 12:._Grantor Rights in Franchise..
The right is hereby reserved to the Grantor to adopt, in addition to the provisions herein
contained and existing applicable ordinances, such additional regulations as it shall find necessary in
the exercise of its police power, provided that such regulations, by ordinance or otherwise, shall be
reasonable, and shall not be in conflict with the laws of the State of Florida or the lawful regulations
of any state agency possessing the power to regulate the activities of the Grantee or materially
interfere with the benefits conferred on Grantee hereunder.
SECTION 13:Work in the Right-of-Way.
The Grantee is hereby granted the right, authority and privilege to make all necessary
excavations in said square, streets, avenue, alleys, thoroughfares, public grounds and other parts of
Grantor. The Grantee shall have the right to fasten and to stretch and lay along the lines of said poles,
conduits, pipes and cables necessary for transmitting and conveying the electric current to be used
in Grantee's business, together with all the right and privileges necessary or convenient for the full
use including the right to trim, cut and keep clear all trees and limbs along said lines that may in any
way endanger the proper operation of same.Moreover, the Grantee shall have the right to construct,
erect, operate and maintain in said City an electric system consisting of central plant or plants, with
all the engines, boilers, dynamos, machines and devices, and appliances that may be required for
generating electricity, together with necessary substations, lines and related facilities and for
carrying Grantee'sbusiness; provided that, in accomplishing these purposes, the streets of said City
shall not be unreasonably obstructed and work in connection therewith shall be done and carried on
in conformity with such reasonable rules, regulations and local ordinances with reference thereto as
may be adopted by Grantor for the protection of the public.
SECTION 14: Records and Reports.
The following records and reports shall be filed with or available to Grantor:
(A) Grantee Rules and Regulations. Copies of rules, regulations, terms and conditions
adopted by Grantee that relate to Grantee's use of Grantor's Right-of-Way shall be available upon
request by Grantor.
(B) Accounting. Grantee shall use the system of accounts and the form of books, accounts,
records, and memoranda prescribed by the Rural Utilities Service, an agency of the United States
Department of Agriculture, or as mutually agreed to by Grantor and Grantee. Should the Rural Utlity
Services, an agency of the United States Department of Agriculture cease to exist, the City retains
OR BK 39 1 1 RG 124-9
6 of 8
the right to require the Grantee to maintain a system of accounts and forms of books and accounts
and memoranda by generally accepted accounting principals:
(C) Reports. The Grantee will attach to each payment a statement of its estimated Base
Revenues by revenue account for the period on which such payment is based, signed by an authorized
representative of the Grantee, in such reasonable form and detail as Grantor may from time to time
prescribe, sufficient to show the source and method of computation of Base Revenues. The
acceptance of any statement or payment shall not estop the Grantor from asserting that the amount
paid is not the amount due or from recovering any deficit by any lawful proceeding, including interest
to be,applied at the rate set forth in Section 6 (B).
(D)Availability of Records and Reports. Grantee shall supply all accounts and records of the
Grantee and/or all such information that the Grantor or its representatives may from time to time
reasonably request or require relative to the calculation of franchise fees. Such financial records shall
be kept and maintained in accordance with generally accepted accounting principles. All of the these
records shall, on written request of Grantor, be open for examination and audit by Grantor and
Grantor's representatives during ordinary business hours, and such records shall be retained by
Grantee for a period of five(5) years;
(E)Audit. Grantor may require an audit of Grantee's books at minimum of once every five
years. Errors identified during the audit process shall be projected for any additional time periods not
covered during the audit if there is a reasonable probability these errors occurred during the unaudited
period, but not for more than five (5) years. If an underpayment of franchise fees has occurred,
interest will_be computedat a rate of ten percent-(10%) per annum.-Both--the-underpayment and
interest shall be paid within thirty(30) days after.
SECTION 15: Grantor's Authority.
Nothing in this Franchise shall prevent Grantor from levying and collecting such taxes as
Grantor may from time to time be empowered, by law, to levy and collect provided such taxes shall
be applied uniformly to all persons within Grantor's corporate limits and shall not constitute an
additional tax or fee for Grantee's use of the Rights-of-Way. Such taxes are not considered part of
the franchise fees.
SECTION 16: Severability.
Should any section or provision of this Franchise Ordinance or any portion thereof, the
deletion of which would not adversely affect(in the general sense)the receipt of any material benefits
or, substantially increase the burden of any party hereunder, be declared by a court of competent
jurisdiction to be invalid, such decision shall not affect the validity of the remainder, as a whole or any
part thereof other than the part declared to be invalid. In the event of any such partial invalidity, the
Grantor and Grantee shall meet and negotiate in good faith to obtain a replacement provision that is
in compliance with the judicial authority's decision.
SECTION 17: Acceptance.
This Ordinance shall become effective upon being legally passed and adopted by the City
Council of the City of Zephyrhills, as provided by law; and it is further agreed that Grantee shall
accept this franchise as of the date of the passage and adoption by the City Council and shall signify
OR BK. 1 1 PG 1 2 O
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its acceptance in writing within thirty days after the City Council's approval of this ordinance by filing
its written acceptance with the City Clerk.
SECTION 18: Attorney's Fees and Expenses.
Except as otherwise provided for herein, Grantor and Grantee hereto agree,thatif litigation
becomes necessary to enforce any of the obligations, terms and conditions of this Franchise, the
prevailing party shall be entitled to recover a reasonable amount of attorney's fees and court costs,
including fees and costs on appeal, from the non-prevailing party. .
SECTION 19: Governing Law and Venue.
(A) The rights and privileges granted to Grantee by this Franchise shall-at all times be
subordinate and inferior to the rights of the public in and to the ordinary use of.Grantor's
Rights-of-Way and nothing in this Franchise shall be considered as a surrender by Grantor of its right
and power to use and relocate the use of its Rights-of-Way.
(B)The Franchise and rights herein granted are subject to the provisions of existing Federal
laws and the laws of the State of Florida and those hereafter enacted pertaining to the granting of
franchises and to Retail Wheeling.
(C) Venue. In the event that any legal proceeding is brought lo enforce the terms of this
Franchise,the same shall be brought in Dade City,Pasco County,Florida, or, if a federal claim, in the
U.S. District Court in and for the Middle District of Florida, Tampa-Division.
SECTION 20. Notices. .
Except in exigent circumstances, all notices by either Grantor or Grantee-to the other shall
be made by either depositing such notice in the United States Mai`, Certified M ii rec irn receipt
requested or by facsimile. Any notice served by certified mail return receipt shall be dot fined delivered
five(5)days after the date of such deposit in the United States mail unless otherwise provided. Any
notice-given by facsimile is deemed received by next Business Day. "Business Day" for purposes of
this section shall mean Monday through Friday, with Saturday, Sunday and Grantor and Grantee
observed holidays excepted. All notices shall be addressed as follows:
To Grantor: To Grantee:
City Manager Robert S. Trinide, Esq.
City of Zephyrhills 121 North Collins Street
5335 Eighth Street P.O. Box TT
Zephyrhills, FL 33540 Plant City, FL 33564-9040
Attorney for Withlacoochee
River Electric Cooperative, Inc.
Notice shall be.gvc-i as required by this Franchise and for all-other emergencies. Notice shall
be provided to the above-named addressees unless directed otherwise in writing by Grantor or
Grantee.
SECTION 21: Non-waiver Provision.
The failure of either party to insist in any one or more instances upon the strict performance of
any one or more of the terms.or provisions of this Franchise shall not be construed as a waiver or
relinquishment for the future of any such term or provision, and the same shall continue in full force
OR BK 39 1 1 P6 1 2S 1 0
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and effect.No waiver or relinquishment shall be deemed to have been made by either party unless said
waiver or relinquishment is in writing and signed by the parties.
SECTION 22: Effective Date.
That this Ordinance shall become law on April 1, 1998 upon being passed by the City Council
of the City of Zephyrhills after two (2) readings and execution by the presiding officer and the clerk
of that body in accordance with Florida Statute 166.041, Laws of Florida.
The foregoing Ordinance No. (o 90 was read and passed on its first reading in open
and regular meeting-by the City Council of the City of Zephyrhills, Florida, on this day of
te., 1998.
••s=ue
ALAN L.B
e_ "President of Ci Council
Attest ' •
Ci(bC e c, L,I l A DaOAN
G•��
The foregOrdhnii inance No. (0 qo was read and passed on its second reading in open and
regular meeting by the City Council of the City of Zephyrhills, Florida, on this ?3 day of
7)Uft.AJi , A.D., 1998.
Ue / o
. . 0 ALAN L. B1 N
namh *' ,.. President of Cit Council
Attest: ,I-WA
t
• Q
T y.6 �O
The foregoing go was approved by me this J�` day of
X`-- � , A.D., 1998.
JAMES A. BAILEY, Mayor
AGREEMENT TO ACCEPT
A NON-EXCLUSIVE
ELECTRIC UTILITY FRANCHISE
Withlacoochee River Electric Cooperative, Inc., by and through its authorized representative
does hereby recite:
WHEREAS, Ordinance No.: 690, enacted by the City Council of the City of Zephyrhills, a
Florida municipal corporation on the 23rd day of March A.D. 1998, granted a non-exclusive electric
utility franchise to Withlacoochee River Electric Cooperative, Inc., and
WHEREAS,Withlacoochee River Electric Cooperative,Inc., as grantee of said franchise uses
or intends to utilize the city's right-of-way to deliver electrical power to residents of the City of
Zephyrhills.
NOW THEREFORE,for good and valuable consideration, receipt of which is acknowledged,
Withlacoochee River Electric Cooperative, Inc., does hereby agree to accept the grant of a non-
exclusive electrical utility franchise by the City of Zephyrhills, grantor and does agree to be bound
by and comply with all of the terms and conditions contained in Ordinance No.: 690, enacted of the
23rd day of March A.D., 1998 by the City Council of the City of Zephyrhills..
DATED this 23rd day of April A.D., 1991t. 1998.
Withlacoochee River Electric Cooperative, Inc.
By •g4/-/-
Its: Genera 1 Manager