HomeMy WebLinkAbout647-96 Grant Florida Power Franchise • 11111111111111111111111111111111111111111111111111
96102938
Rcpt: 104373 Rec: 37.50
ORDINANCE NO. 647 DS: 0.00 IT: o.00
10/01/96 Dpty C1erY
AN ORDINANCE OF THE CITY COUNCIL OF
THE CITY OF ZEPHYRHILLS, FLORIDA,
GRANTING TO FLORIDA POWER
CORPORATION,A NON-EXCLUSIVE ELECTRIC
UTILITY FRANCHISE, TO OCCUPY MUNICIPAL
STREETS AND RIGHTS-OF-WAY IN THE CITY
OF ZEPHYRIAILLS, FLORIDA, FOR THE
PURPOSE OF PROVIDING ELECTRIC AND
POWER SERVICES; PRESCRIBING THE TERMS
AND CONDITIONS ACCOMPANYING THE
GRANT OF FRANCHISE; PROVIDING FOR
SEVERABILITY OF PROVISIONS; AND
PROVIDING AN EFFECTIVE DATE. ' JED PITTMAN, PASCO COUNTY CLERK
10/01/96 04:09pm 1 of 8 7
OR BK 3638 PO 353
BE IT ORDAINED by the City Council of the City of Zephyrhills, Florida, sitting in regular
session, as follows:
SECTION 1: Findings.
(A) The Grantor deems it necessary, desirable and in the best interest of its citizens to
establish by ordinance a franchise granting to Grantee the permission to occupy Rights-of-Way in the
City of Zephyrhills, Florida, for the purpose of providing electric services.
(B) The Grantee is willing to undertake the installation and operation of its electric utility
facilities under a franchise from Grantor.
SECTION 2: Short Title.
This Ordinance shall be known and may be cited as the "Florida Power Corporation Electric
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"-Florida Power Corporation, its successors and assigns.
(C) "Electric Utility System"-An electric power system installed and operated in the Franchise
Area in accordance with 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.
(E) "Base Revenues"-Revenues from the sale of electricity, net of customer credits, to
Record and Return to:
City Clerk's Office
5335 8th Street
Zephyrhills, FL 33540
OR BK 3638 PGI 354
2 of 8
residential, commercial, and industrial customers and City sponsored street lighting all within the
corporate limits of the 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 w tten
Grantee. Grantee must revise its payments due to anyexpansion or reduction byannexation
notice to p ym p
within a reasonable time after notice to Grantee, but no later than sixty (60) days after receipt of
notice.
(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.
OR BK 3638 . pG 355`
•
3 of, 8
(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.
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 for per
Section 6 above,the Grantee shall immediately notify the Grantor and the Grantor reserves the right
to amend this Franchise to require the Grantee to pay the Grantor such additional franchise fees. The
Grantee's failure to notify Grantor of such additional payments does not limit Grantor's rights to such
OR BK 363.8 PG 356
4of8
additional franchise fees nor limit Grantee's liability with respect thereto including late payments
outlined in Section 6 (B).
(B)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
11 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 by the Florida Public Service Commission, or such agency of the
State of Florida or other entity as may have proper jurisdiction over such rates and charges of
Grantee.
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. Grantee shall maintain a business
office or locations within the City which shall be open during normal business hours for the purpose
of accepting payments of electric bills and receiving customer inquiries.
SECTION 10: Indemnification.
(A)Grantor shall in no way be liable or responsible for any accident or damage that may occur
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 itharmless 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 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)It is acknowledged by the Grantor that Grantee provides its own liability insurance(self
insured). Grantee must submit on an annual basis,when submitting its annual audited financial report,
documentation that clearly demonstrates that it has accumulated sufficient financial resources in order
to provide insurance coverage as indicated in Section 10(B) above.
OR BK 3638 PG 35T
SECTION 11: Approval of Transfer. 5 of 8
(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
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's business; 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 Florida Public Service Commission, or as mutually agreed
OR BK 3638 PG 35a-
6
586 of 8
to by Grantor and Grantee. Should the Florida Public Service Commission cease to exist, the City
retains the right to require the Grantee to maintain a system of accounts and forms of books and
accounts and memoranda prescribed by the Federal Energy Regulatory Commission or any other
applicable agency.
(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 othe
Grantee and/or all such information that the Grantor or its representatives may from time to Mune
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. Grantee will reimburse Grantor's audit costs if the audit identifies errors in the Grantee's
franchise Base Revenues of five percent(5%)or more for the period audited. 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 computed at
a rate often percent(10%)per annum.Both the underpayment and interest shall be paid within thirty
(30) days after receipt of demand therefor from Grantor.
SECTION 15: Grantor's Authority.
(A)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.
(B)In the event the Grantor acquires the property rights of Grantee as well as any extensions
thereof within and without the City, used in or useful in or connected with Grantee's Electric Utility
System and the extensions thereof, all grants or renewals shall at once terminate.
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
y
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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. - OR BK 3E38 PG 35'E�
SECTION 17: Acceptance. 7 of 8
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
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 that if 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 limes 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 to 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 Mail, Certified Mail return receipt
requested or by facsimile. Any notice served by certified mail return receipt shall be deemed 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 General Counsel
City of Zephyrhills Florida Power Corp.
5335 Eighth Street P.O. Box 14042
Zephyrhills, FL 33540 St. Petersburg, FL 33733-4042
Notice shall be given 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.
OR BK 3638 PG 360
SECTION 21: Non-waiver Provision. 8 of 8
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
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 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. (1I7 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
F
ZC ' r
� .. .... ,'AyD„ 1996
•
- -�ry • • N L. BRENIA
President of City ouncil
Attest: A - p i ?7�i,✓
Cit . lark;LINDAID' BOAN
- �
Li i S ti
The foregoing Ordinance No. '7 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'F.� day of
c,r n A-% , A D 1996.
AN L. BRENIA
} ' ,_':� _ President of City ouncil
Attest:K •. -
City-c,erk; D. BO:AN
G -
C'7t:1.e Y_ t
The foregoing Ordinance No. 6/-/7 as approved by me th•is 08 f=`� day of
.1e x-6-ems , A.D., 1996.
,41 60,1e
AMES A. BAILEY, Mayor v