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HomeMy WebLinkAbout2007-015ORDINANCE NO. 2007- of 5 AN ORDINANCE GRANTING TO FLORIDA POWER & LIGHT COMPANY, ITS SUCCESSORS AND ASSIGNS, AN ELECTRIC FRANCHISE; IMPOSING PROVISIONS AND CONDITIONS RELATING THERETO; PROVIDING FOR MONTHLY PAYMENTS TO INDIAN RIVER COUNTY; PROVIDING FOR SEVERABILITY; PROVIDING FOR REPEAL OF OTHER CONFLICTING ORDINANCES AND RESOLUTIONS; PROVIDING FOR INCLUSION IN THE CODE OF ORDINANCES OF INDIAN RIVER COUNTY; PROVIDING FOR FILING WITH THE DEPARTMENT OF STATE; AND PROVIDING FOR AN EFFECTIVE DATE. BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF INDIAN RIVER COUNTY, FLORIDA, as follows: PART I: CREATION OF PART II OF CHAPTER 312, "RIGHTS-OF-WAY", OF THE CODE OF INDIAN RIVER COUNTY, FLORIDA TO BE KNOWN AS "GRANT OF ELECTRIC FRANCHISE TO FLORIDA POWER & LIGHT COMPANY." SECTION 1. LEGISLATIVE FINDINGS. A. The Board of County Commissioners of Indian River County ("County") recognizes that the citizens of the County need and desire the benefits of electric service; and B. The provision of such service requires substantial investments of capital and other resources in order to construct, maintain and operate facilities essential to the provision of such service in addition to costly administrative functions, and the County does not desire to undertake to provide such services; and C. Florida Power & Light Company ("FPL") is a public utility which has the demonstrated ability to supply such services; and D. The County adopted Resolution No. 77-104, effective October 19, 1977, that granted a franchise to FPL for 30 years, ending October 18, 2007. E. FPL and the County desire to enter into a new franchise agreement providing for the payment of fees to the County in exchange for the nonexclusive right and privilege of supplying electricity and other services throughout the County free of competition from the County, pursuant to certain terms and conditions set forth in this Ordinance; ORDINANCE NO. 2007- G15 SECTION 2. TITLE AND CITATION. Commencing on the Effective Date of this Ordinance, Part II of Chapter 312 of the Code is hereby created and shall be known and cited as "GRANT OF ELECTRIC FRANCHISE TO FLORIDA POWER & LIGHT COMPANY." PART II: FRANCHISE AGREEMENT CREATION OF NEW SECTION 312.20 OF THE CODE. Commencing on the Effective Date of this Ordinance, the following section is created to read as follows: SECTION 312.20. GRANT OF FRANCHISE. Section 1. There is hereby granted to Florida Power & Light Company, its successors and assigns (herein called "FPL"), for the period of 30 years from the effective date hereof, the non-exclusive right, privilege and franchise (herein called "franchise") to construct, operate and maintain in, under, upon, along, over and across the present and future roads, streets, alleys, bridges, easements, rights-of-way and other public places (herein collectively called "public rights-of-way") throughout all of the unincorporated areas, as such unincorporated areas may be constituted from time to time, of Indian River County, Florida, and its successors (herein called "County" ), in accordance with FPL's customary practice with respect to construction and maintenance, electric light and power facilities, including, without limitation, conduits, poles, wires, transmission and distribution lines, and all other facilities installed in conjunction with or ancillary to all of FPL's operations (herein collectively called "facilities"), for the purpose of supplying electricity and other services to the County and its successors, the inhabitants thereof, and persons beyond the limits thereof. Section 2. The facilities of FPL shall be installed, located or relocated so as to not unreasonably interfere with traffic over the public rights-of-way or with reasonable egress from and ingress to abutting property. To avoid conflicts with traffic, the location or relocation of all facilities shall be made as representatives of the County may prescribe in accordance with the County's reasonable rules and regulations with reference to the placing and maintaining in, under, upon, along, over and across said public rights-of-way; provided, however, that such rules or regulations: (a) shall not prohibit the exercise of FPL's right to use said public rights-of-way for reasons other than unreasonable interference with motor vehicular traffic; (b) shall not unreasonably interfere with FPL's ability to furnish reasonably sufficient, adequate and efficient electric service to all of its customers; and (c) shall not require the relocation of any of FPL's facilities installed before or after the effective date hereof in public rights-of-way unless or until widening or otherwise changing the configuration of the paved portion of any public right-of-way used by motor vehicles causes such installed facilities to unreasonably interfere with motor vehicular traffic. Such rules and regulations shall recognize that above -grade facilities of FPL installed after the effective date hereof should be installed near the outer boundaries 2 ORDINANCE NO. 2007-G15 of the public rights-of-way to the extent possible. When any portion of a public right-of- way is excavated by FPL in the location or relocation of any of its facilities, the portion of the public right-of-way so excavated shall within a reasonable time be replaced by FPL at its expense and in as good condition as it was at the time of such excavation. The County shall not be liable to FPL for any cost or expense in connection with any relocation of FPL's facilities required under subsection (c) of this Section, except, however, FPL shall be entitled to seek reimbursement of its costs from others and as may be provided by law. Section 3. The County 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 its facilities hereunder, and the acceptance of this franchise shall be deemed an agreement on the part of FPL to indemnify the County and hold the County harmless against any and all liability, loss, cost, damage or expense which may accrue to the County by reason of the negligence, default or misconduct of FPL in the construction, operation or maintenance of its facilities hereunder. Section 4. All rates and rules and regulations established by FPL from time to time shall be subject to such regulation as may be provided by law. Section 5. As a consideration for this franchise, FPL shall pay to the County, commencing 90 days after the effective date hereof, and each month thereafter for the remainder of the term of this franchise, an amount which added to the amount of all licenses, excises, fees, charges and other impositions of any kind whatsoever (except ad valorem property taxes and non -ad valorem tax assessments on property) levied or imposed by the County against FPL's property, business or operations and those of its subsidiaries during FPL's monthly billing period ending 60 days prior to each such payment will equal 5.9 percent of FPL's billed revenues, less actual write-offs, from the sale of electrical energy to residential, commercial and industrial customers (as such customers are defined by FPL's tariff) within the unincorporated areas of the County for the monthly billing period ending 60 days prior to each such payment, and in no event shall payment for the rights and privileges granted herein exceed 5.9 percent of such revenues for any monthly billing period of FPL. 5.1. The County understands and agrees that such revenues as described in the preceding paragraph are limited to the precise revenues described therein, and that such revenues do not include, by way of example and not limitation: (a) revenues from the sale of electrical energy for Public Street and Highway Lighting (service for lighting public ways and areas); (b) revenues from Other Sales to Public Authorities (service with eligibility restricted to governmental entities); (c) revenues from Sales to Railroads and Railways (service supplied for propulsion of electric transit vehicles); (d) revenues from Sales for Resale (service to other utilities for resale purposes); (e) franchise fees; (f) Late Payment Charges; (g) Field Collection Charges; or (h) other service charges (as such terms are defined in FPL's tariff). 3 ORDINANCE NO. 2007- 015 Section 6. As a further consideration, during the term of this franchise or any extension thereof, the County agrees: (a) not to engage in the distribution and/or sale, in competition with FPL, of electric capacity and/or energy to any ultimate consumer of electric utility service (herein called a "retail customer") or to any electrical distribution system established solely to serve any retail customer formerly served by FPL; (b) not to participate in any proceeding or contractual arrangement the purpose or terms of which would be to obligate FPL to transmit and/or distribute, electric capacity and/or energy from any person to any other retail customer's facility(ies); and (c) not to seek to have the FPL transmit and/or distribute electric capacity and/or energy generated by or on behalf of the County at one location to the County's facility(ies) at any other location(s). Nothing specified above shall prohibit the County from engaging with other persons in wholesale transactions which are subject to the provisions of the Federal Power Act. 6.1 Nothing herein shall prohibit the County, if permitted by law, (i) from purchasing electric capacity and/or energy from any other person, or (ii) from seeking to have FPL transmit and/or distribute to any facility(ies) of the County electric capacity and/or energy purchased by the County from any other person; provided, however, that before the County elects to purchase electric capacity and/or energy from any other person for consumption in any facility(ies) being served by FPL before such election, the County shall notify FPL in writing. Such notice shall include a summary of the specific rates, terms and conditions which have been offered by the other person and identify the County's facilities to be served under the offer. FPL shall thereafter have 90 days to evaluate the other person's offer and, if FPL agrees to meet or beat the other person's offer, the County shall be obligated to continue to purchase from FPL electric capacity and/or energy to serve the County's identified facilities for a term no shorter than that offered by the other person. Section 7. If the County grants a right, privilege or franchise to any other person or otherwise enables any other such person to construct, operate or maintain electric light and power facilities within any part of the unincorporated areas of the County in which FPL may lawfully serve or compete on terms and conditions which FPL determines are more favorable than the terms and conditions contained herein, FPL may at any time thereafter terminate this franchise if such terms and conditions are not remedied within the time period provided hereafter. FPL shall give the County at least 60 days advance written notice of its intent to terminate. Such notice shall, without prejudice to any of the rights reserved for FPL herein, advise the County of such terms and conditions that it considers more favorable. The County shall then have 60 days in which to correct or otherwise remedy the terms and conditions complained of by the FPL. If FPL determines that such terms or conditions are not remedied by the County within said time period, FPL may terminate this agreement by delivering written notice to the County's Chairman of the Board of County Commissioners and termination shall be effective on the date of delivery of such notice. Section 8. If as a direct or indirect consequence of any legislative, regulatory or other action by the United States of America or the State of Florida (or any department, agency, authority, instrumentality or political subdivision of either of them) any person is 4 ORDINANCE NO. 2007- 015 permitted to provide electric service within the unincorporated areas of the County to a customer then being served by FPL, or to any new applicant for electric service within any part of the unincorporated areas of the County in which FPL may lawfully serve, and FPL determines that its obligations hereunder, or otherwise resulting from this franchise in respect to rates and service, place it at a competitive disadvantage with respect to such other person, FPL may, at any time after the taking of such action, terminate this franchise if such competitive disadvantage is not remedied within the time period provided hereafter. FPL shall give the County at least 90 days advance written notice of its intent to terminate. Such notice shall, without prejudice to any of the rights reserved for FPL herein, advise the County of the consequences of such action which resulted in the competitive disadvantage. The County shall then have 90 days in which to correct or otherwise remedy the competitive disadvantage. If such competitive disadvantage is not remedied by the County within said time period, FPL may terminate this agreement by delivering written notice to the County's Chairman of the Board of County Commissioners and termination shall take effect on the date of delivery of such notice. Section 9. Failure on the part of FPL to comply in any substantial respect with any of the provisions of this franchise shall be grounds for forfeiture, but no such forfeiture shall take effect if the reasonableness or propriety thereof is protested by FPL until there is final determination (after the expiration or exhaustion of all rights of appeal) by a court of competent jurisdiction that FPL has failed to comply in a substantial respect with any of the provisions of this franchise, and FPL shall have six months after such final determination to make good the default before a forfeiture shall result with the right in the County at its discretion to grant such additional time to FPL for compliance as necessities in the case require. Section 10. Failure on the part of the County to comply in substantial respect with any of the provisions of this ordinance, including: (a) denying FPL use of public rights-of-way for reasons other than unreasonable interference with motor vehicular traffic; (b) imposing conditions for use of public rights-of-way contrary to Florida law or the terms and conditions of this franchise; (c) unreasonable delay in issuing FPL a use permit, if any, to construct its facilities in public rights-of-way, shall constitute breach of this franchise and entitle FPL to withhold all or part of the payments provided for in Section 5 hereof until such time as a use permit is issued or a court of competent jurisdiction has reached a final determination in the matter. The County recognizes and agrees that nothing in this franchise constitutes or shall be deemed to constitute a waiver of FPL's delegated sovereign right of condemnation and that FPL, in its sole discretion, may exercise such right. Section 11. The County or its auditors may, upon reasonable notice and within 90 days after each anniversary date of this franchise, at the County's expense, examine the records of FPL relating to the calculation of the franchise payment for the year preceding such anniversary date. Such examination shall be during normal business hours at FPL's office where such records are maintained. Records not prepared by FPL in the ordinary course of business may be provided at the County's expense and as the County and the FPL may agree in writing. Information identifying FPL's customers by 5 ORDINANCE NO. 2007- 015 their electric consumption shall not be taken from FPL's premises except in accordance with FPL's standard confidentiality agreement to be signed by the County and FPL prior to the audit. Such audit shall be impartial and all audit findings, whether they decrease or increase payment to the County, shall be reported to FPL. The County's right to examine the records of FPL in accordance with this section shall not be conducted by any third party employed by the County whose fee, in whole or part, for conducting such audit is contingent on findings of the audit. PART III: GENERAL PROVISIONS SECTION 1: SEVERABILITY. If any section, sentence, clause or phrase of this Ordinance is held to be invalid or unconstitutional by any court of competent jurisdiction, then said holding in no way affects the validity of the remaining portions of this Ordinance. Notwithstanding the foregoing, it is expressly provided that if any of the provisions of Part ll, Sections 1, 2, 5, 6, 7, 8, and 10 are found or adjudged to be invalid, void or of no effect, the entire Ordinance shall be null and void and of no force or effect. SECTION 2: REPEAL OF CONFLICTING ORDINANCES AND RESOLUTIONS. The provisions of any other Indian River County ordinance or resolution, including Resolution 77-104, that are inconsistent or in conflict with the provisions of this Ordinance are repealed to the extent of such inconsistency or conflict. SECTION 3: INCLUSION IN THE CODE OF LAWS AND ORDINANCES. The provisions of this Ordinance shall become and be made a part of the Code of Laws and Ordinances of Indian River County, Florida. The sections of the Ordinance may be renumbered or relettered to accomplish such, and the word "ordinance" may be changed to "section", "article", or any other appropriate word. SECTION 4: CERTAIN DEFINITIONS.. As used herein "person" means an individual, a partnership, a corporation, a business trust, a joint stock company, a trust, an unincorporated association, a joint venture, a governmental authority or any other entity of whatever nature. SECTION 5: EFFECTIVE DATE.. A certified copy of this ordinance shall be filed by the County with the Florida Department of State within 10 days after its enactment. As a condition precedent to the taking effect of this ordinance FPL shall file its written acceptance hereof with the County's Chairman of the Board of County Commissioners within 30 days of enactment of this ordinance. The effective date of this ordinance shall be the date upon which FPL files such acceptance. ORDINANCE NO. 2007- 015 This Ordinance was advertised in the Vero Beach Press Journal on May 21, 2007, for a public hearing to be held on June 5, 2007. During the June 5, 2007 public hearing, this Ordinance was moved for adoption by Commissioner S. L. Bowden , and seconded by Commissioner J - E. Fl escher , and adopted by the following vote: Chairman Gary C. Wheeler Aye Vice -Chairman Sandra L. Bowden Aye Commissioner Wesley S. Davis Aye Commissioner Joseph E. Flescher Aye Commissioner Peter D. O'Bryan Aye DULY PASSED AND ADOPTED THIS 5th DAY OF JUNE, 2007. Attest: J. K. Barton, Clerk Deputy Clerk Approved: Aarfi Baird, County Administrator as to form and legal sufficiency: E. Fell, Assi ey INDIAN RIVER COUNTY, FLORIDA BOARD OF COUNTY COMMISSIONERS By Ga . Wheeler, Chairman EFFECTIVE DATE: This Ordinance was filed with the Department of State on the day of June, 2007, and becomes effective on _ a ZULy Uo.7 J:Vaw\PMR\FPL\Franchise\Indian River County 2-15-07 Adoc 7 ACCEPTANCE OF ELECTRIC FRANCHISE ORDINANCE NO. 2007-015 BY FLORIDA POWER & LIGHT COMPANY Indian River County, Florida July 2, 2007 Florida Power & Light Company does hereby accept the electric franchise in Indian River County, Florida, granted by Ordinance No. 2007-015, being: AN ORDINANCE GRANTING TO FLORIDA POWER & LIGHT COMPANY, ITS SUCCESSORS AND ASSIGNS, AN ELECTRIC FRANCHISE; IMPOSING PROVISIONS AND CONDITIONS RELATING THERETO; PROVIDING FOR MONTHLY PAYMENTS TO INDIAN RIVER COUNTY; PROVIDING FOR SEVERABILITY; PROVIDING FOR REPEAL OF OTHER CONFLICTING ORDINANCES AND RESOLUTIONS; PROVIDING FOR INCLUSION IN THE CODE OF ORDINANCES OF INDIAN RIVER COUNTY; PROVIDING FOR FILING WITH THE DEPARTMENT OF STATE; AND PROVIDING FOR AN EFFECTIVE DATE. which was passed and adopted on June 5, 2007. This instrument is filed with the Chairman of the Board of County Commissioners of Indian River County Florida, in accordance with the provisions of Part III, Section 5 of said Ordinance. ATTEST: n, Assistant Secretary FLORIDA POWER & LIGHT COMPANY Bye'' J� rey S. Bartel, Vice President I HEREBY ACKNOWLEDGE receipt of the above Acceptance of Electric Franchise Ordinance No. 2007-015by Florida Power & Light Company, and certify that I have filed the same for record in the permanent files and records of the County of Indian River, Florida on this day of July, 2007. f2 GQ +1nian of the Board of County Commissioners, er County, Florida