HomeMy WebLinkAbout2012-012A r1 � �rf
Prepared hy, record and return to:
Indian River County Attorney'q Office f 3 .
1801271, Strcet, Vero Beach, FL 32960
ao � � - o cac� 215460 $
THIS DOC MEN I HAS BEEN
RECORDED IN THE PUBLIC RECORDS
OF INDIAN RIVER COUNTY Fl.
BK : 2557 PG : 448 . Pagel o17
02i2412012 at 03 . 35 PM ,
JEFFREY K BARTON , CLERK OF
COUR1
CITY/COUNTY RIGHT- OF-WAY AGREEMENT
FOR UNDERGROUND INSTALLATIONS (NON- CONVERSIONS)
THIS AGREEMENT (the " Agreement " ) is made and entered into as of the 201h day of
January , 2012 by and between Indian River County ("Local Government '), a Florida municipal
corporation or county with an address of 1801 271H Street, Vero Beach, FL 32960 - 3365 and
Florida Power & Light Company ("FPL ') , a Florida corporation with an address of P . O . Box
14000 , 700 Universe Boulevard , Juno Beach, FL 33408 - 0429 .
WHEREAS , Local Government has requested that FPL install certain underground
electric distribution facilities to be located within the following boundaries (the "Installation ') :
starting at FPL ' s Rosedale substation, going West 610 ' on 12th St . or " Rosedale
Rd . " West to 58th Ave . , heading South 2 . 55 miles on 58th Ave . from 12t" St . to
Oslo Rd . or 9th St . S . W, heading West 2 . 23 miles on Oslo Rd . or 9th St . SW from
58th Ave . to 925 74th Ave . SW ,
which installation may include transformers , switch cabinets and other appurtenant facilities
some of which may be installed above ground (collectively , the "Underground Facilities ') and
has further requested that certain of the Underground Facilities be placed in certain of its road
rights-of-way ("Local Government ROW') and/or certain road rights - of-way owned by or under
the jurisdiction of other agencies ("Other ROW' ) . Local Government ROW and Other ROW
may be referred to collectively as "ROW and
WHEREAS , certain FPL customer( s) ("Customer" or " Customers") to be served by the
Underground Facilities (not the Local Government) have agreed to pay FPL the cost of such
Installation as required by FPL ' s electric tariff and Section 25 - 6 . 064 of the Florida
Administrative Code , and such FPL customers have or will enter into a separate Underground
Distribution Facilities Installation Agreement with FPL ; and
WHEREAS , FPL is willing, subject to the terms and conditions set forth in this
Agreement, FPL ' s electric tariff and Sections 25 - 6 . 064 and 25 - 6 . 0341 of the Florida
Administrative Code , to place certain of the Underground Facilities in the ROW .
NOW THEREFORE , in recognition of the foregoing premises and the covenants and
agreements set forth herein , and other consideration the sufficiency of which is hereby
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acknowledged, intending to be legally bound hereby, the parties covenant and agree as follows :
1 . The foregoing recitals are true and correct, and are hereby incorporated by
reference into this Agreement .
2 . Conditions Precedent to Placement of Underground Facilities in ROW.
(a) Local Government covenants , represents and warrants that :
( i) Local Government has full legal right and authority to enter into this
Agreement;
(ii) Local Government has full legal right and authority to take all actions and
measures necessary to fulfill Local Government ' s obligations under this
Agreement ;
(iii) Local Government hereby authorizes the use of the ROW by FPL for the
purposes stated herein .
(b) All applicable permits for FPL to install , construct, or maintain Underground
Facilities in ROW must be issued on a timely basis by the appropriate agency,
subject to the timely filing for permits by FPL .
(c ) Local Government agrees to provide , at Customer ' s expense , a legal description
that is acceptable to FPL of the ROW to be occupied by the Underground
Facilities at a time before FPL initiates the design of the Underground Facilities .
Said legal description shall be made part of this Agreement and attached as
Exhibit " A " .
(d) FPL agrees to identify and document all existing FPL underground facilities
within the ROW that will not be included under this Agreement . To the extent
that FPL seeks reimbursement for its reasonable costs and expenses to deliver said
documentation , FPL shall seek reimbursement from Customer . Said
documentation shall be made part of this Agreement and attached as Exhibit " B " .
( e) FPL warrants that the design of the Underground Facilities to which Local
Government has agreed are in compliance with all operational and safety
guidelines , codes and standards . FPL and Local Government have mutually
agreed upon the location of the facilities within the ROW as per the construction
drawings . Said construction drawings shall be attached as Exhibit " C " to this
Agreement, are part of this Agreement, and may be amended to reflect changes to
location of facilities as required .
3 . Relocation , Removal and/or Rearrangement of FPL Facilities . If the Local
Government or other agency with control over the Local Government ROW or Other ROW , for
any reason whatsoever, requires that FPL relocate , remove and/or or rearrange , in whole or in
part , any Underground Facilities (as they are to exist as a result of this Installation, or as
they
may later be modified , upgraded, or otherwise altered) from or within the Local Government
ROW or Other ROW, the Local Government, notwithstanding any language to the contrary in
any applicable permit, franchise agreement, law, or regulation , and prior to any such relocation,
removal and/or rearrangement by FPL , shall provide FPL with a substitute location, satisfactory
to FPL , obtain any easements that may be necessary and shall pay FPL for the associated
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incremental costs of relocation , removal and/or rearrangement of overhead versus underground
facilities . The term "incremental costs " shall mean the difference between the estimated cost that
FPL would incur if the relocation, removal and/or rearrangement were being done with respect to
an overhead line, compared to the estimated cost incurred in relocating , removing and/or
rearranging the underground line . The incremental costs associated with any relocation , removal
and/or rearrangement will be determined and calculated in accordance with FPL ' s approved
tariffs , currently Tariff 6 . 096, Section 10 . 2 . 13 (a) (b) and Tariff 6 . 530 , Section 13 . 2 . 12 (h) .
Overhead and underground installation differential costs per foot of feeder will be determined
utilizing FPL ' s approved Tariff 6 . 530 , Section 13 . 2 . 12 (h) . The cost differential to relocate ,
remove and/or rearrange overhead and underground facilities will be determined utilizing FPL ' s
cost estimating system and current costs . The term "incremental costs " shall not include costs
associated with any increase in the size of the underground facilities unless such increase is
requested by the County or an affected FPL Customer or Customers or is the result of
conformance with a new FPL technical standard for the underground facilities (applicable to all
underground facilities) at the time of the relocation, removal and/or rearrangement . Such
conformance does not include an expansion of the underground distribution facilities initiated by
FPL to serve additional FPL Customers or unrelated to a new FPL technical standard for
underground facilities applicable to all underground facilities .
Local Government shall reimburse FPL for all costs to expose , protect or support the
Underground Facilities , whether underground or above ground, in the event of future
construction or excavation , when such services are required by Local Government or other
agency with control over the Local Government ROW or Other ROW . Local Government 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 Underground Facilities in Local
Government ROW and , to the extent reasonably practicable , in Other ROW .
Local Government 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 Local Government .
Nothing herein shall preclude Local Government from obtaining reimbursement for any
and all costs of requiring FPL to relocate or rearrange any of its Underground Facilities from
those FPL customers to be served by the Underground Facilities or their successors or assigns , or
other entities that initiated the requirement for the relocation or rearrangement of the facilities ,
excluding only other agencies which own or have jurisdiction over the ROW .
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 .
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4 . Abandonment or Sale of Local Government ROW. If the Local Government
desires to subsequently abandon or discontinue use of the Local Government ROW , and
ownership of the land is transferred to a private party, the Local Government , as a condition of
and prior to any such sale , abandonment, or vacation, shall grant FPL an easement satisfactory to
FPL for the Underground Facilities then existing within the ROW or require the transferee to so
grant FPL an easement satisfactory to FPL at the time of transfer. If ownership of the Local
Government ROW is transferred to another public entity , that public entity shall take the ROW
subject to the terms and conditions of this Agreement .
5 . Term . This Agreement shall remain in effect for as long as FPL or any successor
or assign owns or operates the Underground Facilities placed in the ROW .
6 . Title and Ownership of Underground Facilities . Title and ownership of
Underground Facilities installed by FPL as a result of this Agreement shall, at all times , remain
the property of FPL .
7 . Conversion Outside ROW. In the event that the FPL Underground Facilities are
not, for any reason other than the error of FPL or its contractors , constructed within the ROW,
Local Government shall grant or secure , at Local Government ' s sole cost and expense , new
easements or ROW grants for the benefit of FPL for the placement of the Underground Facilities
in these areas , and shall secure subordinations of any mortgages affecting these tracts to the
interest of FPL . In the alternative , at the discretion of Local Government, Local Government
shall reimburse FPL for all costs incurred to remove said facilities which were constructed
outside the ROW and for reinstallation within the ROW . FPL shall be responsible at completion
of construction for notifying Local Government in writing of FPL ' s approval and acceptance of
the conversion as being constructed within the ROW . Upon acceptance there shall be no further
responsibility on the Local Government for relocations referenced in this paragraph .
8 . Agreement Subject to FPL ' s Electric Tariff. This Agreement is subject to
FPL ' s electric tariff, including but not limited to the general rules and regulations for electric
service and the rules of the Florida Public Service Commission .
9 . Venue ; Waiver of Jury Trial . This Agreement shall be enforceable in Indian
River County, Florida, and if legal action is necessary by either party with respect to the
enforcement of any or all of the terms or conditions herein , exclusive venue for the enforcement
of same shall lie in Indian River County , Florida. By entering into this Agreement, FPL and the
Local Government expressly waive any rights either party may have to a trial by jury of any civil
litigation related to or arising out of this Agreement. This Agreement shall be construed in
accordance with the laws of the State of Florida.
10 . Attorney Fees . In the event it becomes necessary for either party to institute or
defend legal proceedings as a result of the failure of the other party to comply with the terms ,
covenants , or provisions of this Agreement, each parry in such litigation shall bear its own cost
and expenses incurred and extended in connection therewith, including, but not limited to
attorneys ' fees and court costs through all trial and appellate levels .
Page 4 of 7
11 . Assignment. The Local Government shall not assign this Agreement without the
written consent of FPL
12 . Recording. This Agreement shall be adopted by the Local Government and
maintained in the official records of Local Government for the duration of the term of this
Agreement . This Agreement also shall be recorded in the Official Records of the County in
which the Underground Facilities are located, in the place and in the manner in which deeds are
typically recorded .
13 . Conflict between Terms of Permit or Franchise Agreement. In the event of a
conflict between the terms of this Agreement and any permit or franchise agreement entered into
by Local Government and FPL, the terms of this Agreement shall control .
14 . Notice. Any notice, instruction or other communication to be given to either party
hereunder shall be in writing and shall be hand delivered , telecopied, sent by Federal Express or
a comparable overnight service or by U . S . registered or certified mail, with return receipt
requested and postage prepaid to each party at their respective addresses set forth below :
As to Local Government :
County Administrator
1801 27th Street
Vero Beach, FL 32960 - 3365
With copies to :
County Attorney
1801 27th Street
Vero Beach , FL 32960 - 3365
As to FPL :
Patrick Bryan, Esq.
Florida Power & Light Company
700 Universe Boulevard , LAW/JB
Jupiter, Florida 33408
With copies to :
Vice President, Distribution
Florida Power & Light Company
DOE/JW
15430 Endeavor Drive
Jupiter West
Jupiter, FL 33478 - 6402
Page 5 of 7
Operations Leader
Florida Power & Light Company
SRO/ SRI
4406 SW Cargo Way
Stuart Service Center
Palm City, FL 34990
Engineer 1 — Power Systems
Florida Power & Light Company
TCA/FP2
3301 Orange Avenue
St . Lucie Service Center
Fort Pierce , FL 34947
Treasure Coast Service Planning
Florida Power & Light Company
WNO/SRV
1050 Southeast Brandon
Walton Service Center
Port St . Lucie , FL 34952
IN WITNESS WHEREOF , Florida Power & Light Company and Local Government
have executed this Agreement on the date first set forth above .
INDIAN RIVER COUNTY BOARD OF
puuu .
Attest : Jeffrey K . Barton, Clerk of Codi pMMIS4 COUNTY COMMISSIONERS
, •�
I � i •; *sa
By : * a $ y ..
ut Clerk : Q Gary C . heeler, Chairman
to Approved by BCC : January 24 , 2012
•, ���yl' COU 000000 �
Approved : Approved as to Form and Legal Sufficiency :
�2-
Jeph A . acrd , County Admini trator Alan S . ola kwich, Sr . , County Attorney
[ SIGNATURES CONTINUED ON PAGE 71
Page 6 of 7
Signed , sealed delivered in the presence of: FLORIDA POWER LIGHT COMPANY
By :
int Name : e - ignature)
Name : Keith Hardy
(Print or type)
Title : Vice President, Distribution
rint Name : �✓ (Print or type)
S ATE OF FLORIDA
COUNTY OF Pb,\ ) �-c � t h
The foregoing instrument was acknowledged before me this l� day of hP, � r uci_i^ %. I
,
2012 , by Keith Hard, the Vice President, Distribution , of Florida Power & L ' g t
Company, a Florida corporation, who executed the same on behalf of said entity, and who *IS
personally known to me , of has produced , as identification,
who did not take an oath .
NOTARY PUBLIC , State of Florida
Sign : J� u2 �/t
�
Print : avK i _ Ir
State of Florida [SEAL]
Commission No : 1 [— ILA C 1 .6 �1
Commission Expires : f U / rV y I dQ 0 ( E
HE
ic State of Florida
ktrAsion EE140939
5
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