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05-027 II 1 ORDINANCE NO. 05 -09.1 2 3 4 AN ORDINANCE GRANTING TO FLORIDA POWER & 5 LIGHT COMPANY, ITS SUCCESSORS AND ASSIGNS, AN 6 ELECTRIC FRANCHISE, IMPOSING PROVISIONS AND 7 CONDITIONS RELATING THERETO, PROVIDING FOR 8 MONTHLY PAYMENTS TO THE CITY OF BOYNTON 9 BEACH, AND PROVIDING FOR AN EFFECTIVE DATE. 10 11 12 WHEREAS, the City Commission of the City of Boynton Beach, Florida recognizes 13 that the City of Boynton Beach and its citizens need and desire the continued benefits of electric 14 service; and 15 WHEREAS, the provision of such service requires substantial investments of capital 16 and other resources in order to construct, maintain and operate facilities essential to the provision 17 of such service in addition to costly administrative functions, and the City of Boynton Beach 18 does not desire to undertake to provide such services; and 19 WHEREAS, Florida Power & Light Company (FPL) is a public utility which has the 20 demonstrated ability to supply such services; and 21 WHEREAS, there is currently in effect a franchise agreement between the City of 22 Boynton Beach and FPL, the terms of which are set forth in City of Boynton Beach Ordinance 23 No. 76-9, passed and adopted March 16, 1976, and FPL's written acceptance thereof dated 24 March 29, 1976 granting to FPL, its successors and assigns, a thirty (30) year electric franchise 25 ("Current Franchise Agreement"); and 26 WHEREAS, FPL and the City of Boynton Beach desire to enter into a new agreement 27 (New Franchise Agreement) providing for the payment of fees to the City of Boynton Beach in 28 exchange for the nonexclusive right and privilege of supplying electricity and other services S:\CA\Ordinances\FPL Franchsie Agreement.doc 1 II i 1 I within the City of Boynton Beach free of competition from the City of Boynton Beach, pursuant 2 to certain terms and conditions, and 3 WHEREAS, the City Commission of the City of Boynton Beach deems it to be in the 4 best interest of the City of Boynton Beach and its citizens to enter into the New Franchise 5 Agreement prior to expiration of the Current Franchise Agreement; 6 NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE 7 CITY OF BOYNTON BEACH, FLORIDA: 8 Section 1. There is hereby granted to Florida Power & Light Company, its successors 9 and assigns (hereinafter called the "Grantee"), for the period of 30 years from the effective date 10 hereof, the nonexclusive right, privilege and franchise (hereinafter called "franchise") to 11 construct, operate and maintain in, under, upon, along, over and across the present and future 12 roads, streets, alleys, bridges, easements, rights-of-way and other public places (hereinafter 13 called "public rights-of-way") throughout all of the incorporated areas, as such incorporated 14 areas may be constituted from time to time, of the City of Boynton Beach, Florida, and its 15 successors (hereinafter called the "Grantor"), in accordance with the Grantee's customary 16 practice with respect to construction and maintenance, electric light and power facilities, 17 including, without limitation, conduits, poles, wires, transmission and distribution lines, and all 18 other facilities installed in conjunction with or ancillary to all of the Grantee's operations 19 (hereinafter called "facilities"), for the purpose of supplying electricity and other services to the 20 Grantor and its successors, the inhabitants thereof, and persons beyond the limits thereof. 21 Section 2. The facilities of the Grantee shall be installed, located or relocated so as to 22 not unreasonably interfere with traffic over the public rights-of-way or with reasonable egress 23 from and ingress to abutting property. To avoid conflicts with traffic, the location or relocation S:\CA\Ordinances\FPL Franchsie Agreement.doc 2 II " 1 i of all facilities shall be made as representatives of the Grantor may prescribe in accordance with 2 the Grantor's reasonable rules and regulations with reference to the placing and maintaining in, 3 under, upon, along, over and across said public rights-of-way; provided, however, that such rules 4 or regulations (a) shall not prohibit the exercise of the Grantee's right to use said public rights-of- 5 way for reasons other than unreasonable interference with motor vehicular traffic, (b) shall not 6 unreasonably interfere with the Grantee's ability to furnish reasonably sufficient, adequate and 7 efficient electric service to all of its customers, and (c) shall not require the relocation of any of 8 the Grantee's facilities installed before or after the effective date hereof in public rights-of-way 9 unless or until widening or otherwise changing the configuration of the paved portion of any 10 public right-of-way used by motor vehicles causes such installed facilities to unreasonably 11 interfere with motor vehicular traffic. Such rules and regulations shall recognize that above- 12 grade facilities of the Grantee installed after the effective date hereof should be installed near the 13 outer boundaries ofthe public rights-of-way to the extent possible. When any portion of a public 14 right-of-way is excavated by the Grantee in the location or relocation of any of its facilities, the 15 portion ofthe public right-of-way so excavated shall within a reasonable time be replaced by the 16 Grantee at its expense and in as good condition as it was at the time of such excavation. The 17 Grantor shall not be liable to the Grantee for any cost or expense in connection with any 18 relocation of the Grantee's facilities required under subsection (c) of this Section, except, 19 however, the Grantee shall be entitled to reimbursement of its costs from others and as may be 20 provided by law. 21 Section 3. The Grantor shall in no way be liable or responsible for any accident or 22 damage that may occur in the construction, operation or maintenance by the Grantee of its 23 facilities hereunder, and the acceptance of this ordinance shall be deemed an agreement on the S:\CA\Ordinances\FPL Franchsie Agreement.doc 3 j j II 1 part of the Grantee to indemnify the Grantor and hold it harmless against any and all liability, 2 loss, cost, damage or expense which may accrue to the Grantor by reason of the negligence, 3 default or misconduct of the Grantee in the construction, operation or maintenance of its facilities 4 hereunder. 5 Section 4. All rates and rules and regulations established by the Grantee from time to 6 time shall be subject to such regulation as may be provided by law. 7 Section 5. As a consideration for this franchise, the Grantee shall pay to the Grantor, 8 commencing 90 days after the effective date hereof, and each month thereafter for the remainder 9 of the term of this franchise, an amount which added to the amount of all licenses, excises, fees, 10 charges and other impositions of any kind whatsoever (except ad valorem property taxes and 11 non-ad valorem tax assessments on property) levied or imposed by the Grantor against the 12 Grantee's property, business or operations and those of its subsidiaries during the Grantee's 13 monthly billing period ending 60 days prior to each such payment will equal 5.9 percent of the 14 Grantee's billed revenues, less actual write-offs, from the sale of electrical energy to residential, 15 commercial and industrial customers (as such customers are defined by FPL's tariff) within the 16 incorporated areas of the Grantor for the monthly billing period ending 60 days prior to each 17 such payment, and in no event shall payment for the rights and privileges granted herein exceed 18 5.9 percent of such revenues for any monthly billing period ofthe Grantee. 19 The Grantor understands and agrees that such revenues as described in the preceding 20 paragraph are limited, as in the existing franchise Ordinance No. 76-9, to the precise revenues 21 described therein, and that such revenues do not include, by way of example and not limitation: 22 (a) revenues from the sale of electrical energy for Public Street and Highway Lighting (service 23 for lighting public ways and areas); (b) revenues from Other Sales to Public Authorities (service S:\CA \Ordinances\FPL Franchsie Agreement.doc 4 , Ii II 1 with eligibility restricted to governmental entities); (c) revenues from Sales to Railroads and 2 Railways (service supplied for propulsion of electric transit vehicles); (d) revenues from Sales 3 for Resale (service to other utilities for resale purposes); (e) franchise fees; (f) Late Payment 4 Charges; (g) Field Collection Charges; (h) other service charges. 5 Section 6. As a further consideration, during the term of this franchise or any 6 extension thereof, the Grantor agrees: (a) not to engage in the distribution and/or sale, in 7 competition with the Grantee, of electric capacity and/or electric energy to any ultimate 8 consumer of electric utility service (herein called a "retail customer") or to any electrical 9 distribution system established solely to serve any retail customer formerly served by the 10 Grantee, (b) not to participate in any proceeding or contractual arrangement, the purpose or terms 11 of which would be to obligate the Grantee to transmit and/or distribute, electric capacity and/or 12 electric energy from any third party(ies) to any other retail customer's facility(ies), and (c) not to 13 seek to have the Grantee transmit and/or distribute electric capacity and/or electric energy 14 generated by or on behalf of the Grantor at one location to the Grantor's facility(ies) at any other 15 location(s). Nothing specified herein shall prohibit the Grantor from engaging with other utilities 16 or persons in wholesale transactions which are subject to the provisions of the Federal Power 17 Act. 18 Nothing herein shall prohibit the Grantor, if permitted by law, (i) from purchasing 19 electric capacity and/or electric energy from any other person, or (ii) from seeking to have the 20 Grantee transmit and/or distribute to any facility(ies) of the Grantor electric capacity and/or 21 electric energy purchased by the Grantor from any other person; provided, however, that before 22 the Grantor elects to purchase electric capacity and/or electric energy from any other person, the 23 Grantor shall notify the Grantee. Such notice shall include a summary of the specific rates, S:\CA\Ordinances\FPL Franchsie Agreement.doc 5 I' 1 terms and conditions which have been offered by the other person and identify the Grantor's 2 facilities to be served under the offer. The Grantee shall thereafter have 90 days to evaluate the 3 offer and, if the Grantee offers rates, terms and conditions which are equal to or better than 4 those offered by the other person, the Grantor shall be obligated to continue to purchase from 5 the Grantee electric capacity and/or electric energy to serve the previously-identified facilities 6 of the Grantor for a term no shorter than that offered by the other person. If the Grantee does 7 not agree to rates, terms and conditions which equal or better the other person's offer, all of the 8 terms and conditions of this franchise shall remain in effect. 9 Section 7. If the Grantor grants a right, privilege or franchise to any other person or 10 otherwise enables any other such person to construct, operate or maintain electric light and 11 power facilities within any part of the incorporated areas of the Grantor in which the Grantee 12 may lawfully serve or compete on terms and conditions which the Grantee determines are more 13 favorable than the terms and conditions contained herein, the Grantee may at any time thereafter 14 terminate this franchise if such terms and conditions are not remedied within the time period 15 provided hereafter. The Grantee shall give the Grantor at least 60 days advance written notice of 16 its intent to terminate. Such notice shall, without prejudice to any of the rights reserved for the 17 Grantee herein, advise the Grantor of such terms and conditions that it considers more favorable. 18 The Grantor shall then have 60 days in which to correct or otherwise remedy the terms and 19 conditions complained of by the Grantee. If the Grantee determines that such terms or 20 conditions are not remedied by the Grantor within said time period, the Grantee may terminate 21 this franchise agreement by delivering written notice to the Grantor's Clerk and termination shall 22 be effective on the date of delivery of such notice. S:\CA\Ordinances\FPL Franchsie Agreement.doc 6 II 1 Section 8. If as a direct or indirect consequence of any legislative, regulatory or other 2 action by the United States of America or the State of Florida (or any department, agency, 3 authority, instrumentality or political subdivision of either of them) any person is permitted to 4 provide electric service within the incorporated areas of the Grantor to a customer then being 5 served by the Grantee, or to any new applicant for electric service within any part of the 6 incorporated areas of the Grantor in which the Grantee may lawfully serve, and the Grantee 7 determines that its obligations hereunder, or otherwise resulting from this franchise in respect to 8 rates and service, place it at a competitive disadvantage with respect to such other person, the 9 Grantee may, at any time after the taking of such action, terminate this franchise if such 10 competitive disadvantage is not remedied within the time period provided hereafter. The 11 Grantee shall give the Grantor at least 90 days advance written notice of its intent to terminate. 12 Such notice shall, without prejudice to any of the rights reserved for the Grantee herein, advise 13 the Grantor of the consequences of such action which resulted in the competitive disadvantage. 14 The Grantor shall then have 90 days in which to correct or otherwise remedy the competitive 15 disadvantage. If such competitive disadvantage is not remedied by the Grantor within said time 16 period, the Grantee may terminate this franchise agreement by delivering written notice to the 17 Grantor's Clerk and termination shall take effect on the date of delivery of such notice. 18 Section 9. Failure on the part of the Grantee to comply in any substantial respect with 19 any of the provisions of this franchise shall be grounds for forfeiture, but no such forfeiture shall 20 take effect if the reasonableness or propriety thereof is protested by the Grantee until there is 21 final determination (after the expiration or exhaustion of all rights of appeal) by a court of 22 competent jurisdiction that the Grantee has failed to comply in a substantial respect with any of 23 the provisions of this franchise, and the Grantee shall have six months after such final S:\CA\Ordinances\FPL Franchsie Agreement.doc 7 II 1 determination to make good the default before a forfeiture shall result with the right of the 2 Grantor at its discretion to grant such additional time to the Grantee for compliance as necessities 3 in the case require. 4 Section 10. Failure on the part ofthe Grantor to comply in substantial respect with any 5 of the provisions of this ordinance, including but not limited to: (a) denying the Grantee use of 6 public rights-of-way for reasons other than unreasonable interference with motor vehicular 7 traffic; (b) imposing conditions for use of public rights-of-way contrary to Florida law or the 8 terms and conditions of this franchise; (c) unreasonable delay in issuing the Grantee a use permit, 9 if any, to construct its facilities in public rights-of-way, shall constitute breach of this franchise 10 and entitle the Grantee to withhold all or part of the payments provided for in Section 5 hereof 11 until such time as a use permit is issued or a court of competent jurisdiction has reached a final 12 determination in the matter. The Grantor recognizes and agrees that nothing in this franchise 13 agreement constitutes or shall be deemed to constitute a waiver of the Grantee's delegated 14 sovereign right of condemnation and that the Grantee, in its sole discretion, may exercise such 15 right. 16 Section 11. The Grantor may, upon reasonable notice and within 90 days after each 17 anniversary date of this franchise, at the Grantor's expense, examine the records of the Grantee 18 relating to the calculation of the franchise payment for the year preceding such anniversary date. 19 Such examination shall be during normal business hours at the Grantee's office where such 20 records are maintained. Records not prepared by the Grantee in the ordinary course of business 21 may be provided at the Grantor's expense and as the Grantor and the Grantee may agree in 22 writing. Information identifying the Grantee's customers by name or their electric consumption 23 shall not be taken from the Grantee's premises. Such audit shall be impartial and all audit S:\CA \Ordinances\FPL Franchsie Agreement.doc 8 II 1 findings, whether they decrease or increase payment to the Grantor, shall be reported to the 2 Grantee. The Grantor's right to examine the records of the Grantee in accordance with this 3 Section shall not be conducted by any third party employed by the Grantor whose fee, in whole 4 or part, for conducting such audit is contingent on findings ofthe audit. 5 Grantor waives, settles and bars all claims relating in any way to the amounts paid by 6 the Grantee under the Current Franchise Agreement embodied in Ordinance No. 76-9. 7 Section 12. The provisions of this ordinance are interdependent upon one another, and 8 if any of the provisions of this ordinance are found or adjudged to be invalid, illegal, void or of 9 no effect, the entire ordinance shall be null and void and of no force or effect. 10 Section 13. As used herein "person" means an individual, a partnership, a corporation, 11 a business trust, a joint stock company, a trust, an incorporated association, a joint venture, a 12 governmental authority or any other entity of whatever nature. 13 Section 14. Ordinance No. 76-9, passed and adopted March 16, 1976 and all other 14 ordinances and parts of ordinances and all resolutions and parts of resolutions in conflict 15 herewith, are hereby repealed. 16 Section 15. As a condition precedent to the taking effect of this ordinance, the Grantee 17 shall file its acceptance hereof with the Grantor's Clerk within 30 days of adoption of this 18 ordinance. The effective date of this ordinance shall be the date upon which the Grantee files 19 such acceptance. 20 S:\CA \Ordinances\FPL Franchsie Agreement.doc 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 II FIRST READING this ;U day of Jf.:.ln~ ,2005. SECOND, FINAL READING AND PASSAGE this 5'" day of J u \ '1-' 2005. ATTEST: yY). CITY OF BOYNTON BEACH, FLORIDA ;z::oner ~- Commis . ~t-- - APPROVED AS TO FORM AND LEGALITY: I , I ~ ~- / "''1.5 City Attorney, City of Boynton Beach, Florida S:\CA\Ordinances\FPL Franchsie Agreement.doc 10 The City of Boynton Beach City Clerk's Office tOO E BOYNTON BEACH BLVD BOYNTON BEACH FL 33435 (561) 742-6060 FAX: (561) 742-6090 e-mail: prainitoj@ci.boynton-beach.fl.us www.boynton-beach.org CERTIFICATION I, JANET M. PRAINITO, CITY CLERK of the City of Boynton Beach, Florida, do hereby certify that the attached copy of Ordinance 05-027, consisting of ten (10) pages, is a true and correct copy as it appears in the records of the City of Boynton Beach, Florida. WITNESS, my hand and the corporate seal of the CITY OF BOYNTON BEACH, FLORIDA, dated this 6th day of July 2005. ~ tn. ~/V',t, J ET M. PRAINITO, CMC CITY CLERK S:\CC\ WP\certifications\Ordinances\Certified FPL Ordinance.doc America's Gateway to the Gulfstream ACCEPTANCE OF ELECTRIC FRANCHISE ORDINANCE NO. 05-027 BY FLORIDA POWER & LIGHT COMPANY City of Boynton Beach, Florida August 1, 2005 Florida Power & Light Company does hereby accept the electric franchise in the City of Boynton Beach, Florida, granted by Ordinance No. 05-027, 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 THE CITY OF BOYNTON BEACH, AND PROVIDING FOR AN EFFECTIVE DATE. which was passed and adopted on July 5, 2005. This instrument is filed with the City Clerk of the City of Boynton Beach, Florida, in accordance with the provisions of Section 15 of said Ordinance. FLORIDA POWER & LIGHT COMPANY By ~ Jeffrey S. Bartel, Vice President I HEREBY ACKNOWLEDGE receipt of the above Acceptance of Electric Franchise Ordinance No. 05-027 by Florida Power & Light Company, and certify that I have filed the same for record in the permanent files and records of the City of Boynton Beach, Florida on this 1 st day of August, 2005.