HomeMy WebLinkAbout4406 Duke Franchise40.
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ORDINANCE 2017-4406
An ordinance granting to Duke Energy Florida, LLC d/b/a Duke
Energy, a non-exclusive electric utility rights of way utilization
franchise; prescribing the terms and conditions related to the
occupancy of municipal streets and rights of way in the City of
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Sanford, Florida, for the purpose of providing electric service;
providing for implementing administrative actions; providing for a
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savings provision; providing for non-codification as well as the
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correction of scrivener's errors; providing for conflicts; providing for
severability and providing for an effective date..
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Be it enacted by the People of the City of Sanford:
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Section 1. Findings.
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The City deems it necessary, desirable and in the interest of its citizens to
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establish by ordinance a rights of way utilization franchise (sometimes referred to herein
as the "Franchise") granting the Company permission to occupy the rights of way in the
City of Sanford, Florida, for the purpose of providing electric services.
Section 2. Short Title.
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This Ordinance shall be known and may be cited as the "Duke Energy Rights of
Way Utilization Franchise."
Section 3. Definitions.
For the purposes of this Ordinance, the following terms, phrases, words, and
their derivatives 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 permissive.
(a). "Adversely Affected" — For the Company, a loss of one percent (1%) of
Base Revenues within the corporate City limits due to Retail Wheeling. For the City, a
loss of one percent (1%) of franchise fees due to Retail Wheeling.
(b). "Base Revenues" — All Company's revenues from the retail sale of
electricity, net of customer credits, to residential, commercial and industrial customers
and City sponsored street lighting all within the corporate limits of the City. "Base
Revenues" shall not include any separately stated service charges.
(c). "Company" or "Grantee" — Duke Energy Florida, LLC d/b/a Duke Energy,
its successors and assigns.
(d). "City" or "Grantoe'— The City of Sanford, Florida.
(e). "Electric Energy Provider" — Every legal entity or association of any kind
(including their lessees, trustees or receivers), including any unit of state, federal or
local government (including City herein), which owns, maintains, or operates an electric
generation, transmission, or distribution system or facilities, or which otherwise
provides, arranges for, or supplies electricity or electric energy to the public, or which
supplies electricity to itself utilizing Company's distribution or other facilities. Without
limitation or the foregoing, "Electric Energy Provider" shall also include every Electric
Utility, electric power marketer or electric power aggregator. It shall also include every
entity providing such services as metering, customer billing, payment collection and
processing, and customer information and data processing.
(f). "Electric Utility" -- Shall have the meaning set out in Section 366.02(2),
Florida Statutes (2010), and shall also include every electric "Public Utility" as defined in
Section 366.02(1), Florida Statutes (2010). "Electric Utility" shall further include every
investor owned, municipally or governmentally owned, or cooperatively owned electric
utility (including their lessees, trustees or receivers), which owns, maintains, or operates
an electric generation, transmission, or distribution system in any State or County.
(g). "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 established technical standards, service areas, tariffs and operating
standards, which shall include but not to limited to electric light, heat, power and energy
facilities, and a generation, transmission, and distribution system, with such extensions
thereof and additions hereto as shall hereafter be made.
(h). "Franchise Area" — That area for which Company provides electric utility
service within the corporate City limits of the City.
(i). "Facilities" — The meaning as set forth in Section 4.
(j) "Person" — Any person, firm, partnership, association, corporation,
company or organization of any kind.
(k). "Public Service Commission" — The Florida Public Service Commission.
(1) "Rights of Way" — All of the public streets, alleys, highways, waterways,
bridges, sidewalks and parks, and any other public ways or places owned by 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.
(m). "Retail Wheeling" — A customer /supplier arrangement whereby an Electric
Energy Provider other than the Company utilizes transmission and /or distribution
facilities of the Company to make energy sales directly to an end use customer located
within the Franchise Area.
Section 4. Grant Of Authority.
(a). This grant of authority is limited to the provision by Company to have,
maintain, or place its Facilities within the Rights of Way for its electric utility services.
Accordingly, the City hereby grants to the Company, its successors and assigns the
non - exclusive right, authority, and franchise to lay, erect, construct, maintain, repair and
operate its Facilities in, under, upon, over and across the present and future Rights of
Way, as they now exist or may be hereafter constructed, opened, laid out or extended
within the present limits of the City, including but not limited to conduits, cables, poles,
wires, supports and such other structures or appurtenances as may be reasonably
necessary for the construction, maintenance and operation of an electric generation,
transmission and distribution system, including information, telecommunication, and
video transmission used solely for the provision of electric service (collectively the
"Facilities "), provided that all portions of the same shall conform to accepted industry
standards, including but not limited, to the National Electrical Safety Code. Nothing in
this Ordinance shall require Grantee to remove, de- energize, or cease using any poles,
wires, or other things or Facilities identified hereinabove that were in place under
previous ordinances or permits prior to the Effective Date of this Ordinance, regardless
of whether such poles, wires or other Facilities are located outside "Rights of Way" as
defined herein. Nor shall anything in this Ordinance prohibit Company from performing
upgrades, replacements, maintenance or servicing of such poles, wires, or other
Facilities after the Effective Date of this Ordinance. Rather, all such preexisting poles,
wires, or other Facilities shall be authorized under this Ordinance. Because this
Franchise is intended to grant Company the non - exclusive, but unrestricted right to
place its Facilities within the Rights of Way, the City expressly acknowledges and
agrees that Company shall not be required to pull or pay for permits to place its
Facilities or perform any work maintenance activities on or related to its Facilities within
the Rights of Way.
(b). Annexation or Contraction. City and Company agree that the Franchise
Area is subject to expansion or reduction by annexation and contraction of municipal
boundaries. If City approves any Franchise Area expansion or reduction by annexation
or contraction, City shall provide written notice to Company's Annexation Coordinator, at
the address provided below, within sixty (60) days of such approval and this Franchise
shall automatically extend to include any such annexed areas.
(c). The public rights-of-way of the city shall not be unnecessarily obstructed
and work in connection therewith shall be done and carried on in conformity with such
reasonable rules, standards, regulations and local ordinances with reference thereto as
may be adopted by Grantor for the protection of the public and which are not in conflict
with or otherwise interfere with the benefits conferred on the Grantee hereunder.
(d). Grantee shall locate new facilities and relocated facilities in a manner that
minimizes interference with traffic on said public right-of-way. In such cases where
electrical facilities of Grantee unreasonably conflict with authorized street widening and
improvements, Grantee shall relocate said facilities in accordance Florida Statute
337.403 as it exists now and as may be amended from time to time and any other
applicable laws of the State of Florida or regulation by a state agency having the right to
regulate the Grantee. When any public right-of-way or public property of Grantor is
excavated by Grantee, that portion so excavated shall, shall be restored by Grantee in
accordance with Florida Statute 337.402 as it exists now and as may be amended from
time to time and any other applicable laws of the State of Florida or regulation of the
City, provided that to the extent any such regulation or ordinance of the City conflicts
with or otherwise interferes with the benefits conferred on the Grantee hereunder, the
Duke Energy Rights of Way Utilization Franchise shall control over any other City
ordinance or regulation.
Additionally, within sixty (60) days of any such annexation or contraction, City
shall provide to Company an updated list containing the new or removed street names,
known street name aliases, street addresses, and zip codes associated with each street
name. All notices of annexation or contraction and address listings shall be addressed
to the Annexation Coordinator as follows with the address subject to change:
Duke Energy
Annexation Coordinator
P. O. Box 33199
St. Petersburg, Florida 33733 -8199
Or by email to: taxteam@duke-ener_qv.com
Company must revise its payments due to any expansion or reduction by
annexation within a reasonable time after Company has received such notice and
updated list from City, but no later than sixty (60) days after receipt of notice and the list.
City understands and affirmatively acknowledges that the Company will exclusively rely
upon the City to provide timely and accurate information to the Company regarding any
such annexations or contractions, and that failure to do so will impair, inhibit, and /or
preclude the Company's ability to revise any payments due to the City that are impacted
by such annexations or contractions. Further, City acknowledges that if such information
is not timely furnished to Company as required herein, any related obligation to collect
payments shall be suspended during the period of delay.
(c). Non - Exclusive Use. The Company's right to use and occupy Rights of
Way for the purposes herein set forth shall be non - exclusive as to entities not engaged
in the provision of electric energy and service, and the City reserves the right to grant to
others the right to utilize the Rights of Way, to any person at any time during the period
of this Franchise so long as such grant does not create an unsafe condition or
unreasonably conflict with the rights granted to Company herein.
Section 5. Notice Of Acceptance And Term Of Franchise.
This ordinance shall become effective upon being legally passed and adopted
( "Effective Date ") by the City Commission; and it is further agreed that Grantee shall
accept this Franchise as of the date of the passage and adoption by the City
Commission and shall signify its acceptance in writing within thirty (30) days after the
City Commission's approval of this ordinance by filing its written acceptance with the
City Clerk. If Grantee fails to accept this franchise within thirty (30) days of its date of
passage and adoption, then this Ordinance shall be null and void, and of no force and
effect of any kind. Commencing on the Effective Date, the term of the Franchise
granted herein shall be for a period of twenty (20) years.
Section 6. Payment To City.
(a). Effective the first day of the second month beginning after the Effective
Date of this ordinance, City shall be entitled to receive from Company a monthly
franchise amount that will equal six percent (6 %) of Company's Base Revenues (the
"Franchise Fee ") for the preceding month, which amount shall be the total
compensation due City for any and all rights, authority and privileges granted by this
Franchise, including compensation for any required permits, parking fees, or any other
fee or cost related to the rights granted hereunder. Any franchise amounts that will be
paid to the City will be collected by the Company from Company's customers in the
Franchise Area and passed through to the City in the manner described herein. The
City expressly acknowledges that no additional or other amounts shall be due or
remitted by Company for the exercise of its rights granted hereunder.
Payment shall be made to City for each month no later than the twentieth (20th)
day of the following month. The monthly payment shall be made by wire transfer. Any
monthly payment or any portion thereof made twenty (20) days after the due date
without good cause shall be subject to interest calculated for each month of the
underpayment period using the average monthly interest rate based on thirty (30) day
commercial paper.
(b). Only disputed amounts shall be allowed to be withheld by Company, and
any such amount shall not accrue any interest during the pendency of any such dispute.
(c). The City acknowledges that all classifications and categories of retail
customers of Company shall be subject to the payment of the Franchise Fee due
hereunder.
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 that provided for in Section 6 above, Grantee shall notify Grantor, and Grantor
reserves the right to amend this Franchise to increase the franchise fee payable under
this ordinance to no more than the greater franchise fee that Grantee has agreed to pay
to such other municipality. Grantee's obligation to pay such greater franchise fee to
Grantor shall apply prospectively beginning with the next monthly franchise fee payment
following Grantor's timely notice of its exercise of its amendment right to which Grantee
may collect such increased fee from its customers. Grantee's failure to notify Grantor of
such additional payments does not limit Grantor's right to amend to require such
additional franchise fees.
(b). It is the intent and agreement of Grantor and Grantee that Grantee shall
not be required to pay Grantor a franchise fee under Section 6 of a percentage greater
than that paid to Grantor by any other Electric Utility or Electric Energy Provider utilizing
Grantor's Rights of Way on such Electric Utility's or Electric Energy Provider's revenues
attributable to services that are the same or substantially the same as those performed
by Grantee. It is further the intent and agreement of Grantor and Grantee that Grantee
should not be placed at a competitive disadvantage by the payments required by
Section 6 of this Ordinance in the event other Electric Utilities or Electric Energy
Providers provide services in competition with Grantee without utilizing Grantor's Rights
of Way.
(c). If Grantor imposes a lesser fee, or no fee, or is unable to impose a fee on
another Electric Utility or Electric Energy Provider providing or seeking to provide
services in competition with Grantee to customers within Grantor's municipal
boundaries, whether utilizing Grantor's Rights of Way or not utilizing Grantor's Rights of
Way, Grantee's fee under Section 6 for such services shall be automatically reduced to
the lesser fee charged the other Electric Utility or Electric Energy Provider (or to zero
(0), if no fee is charged such other Electric Utility or Electric Energy Provider). In all
events, City shall not grant more favorable treatment to other Electric Energy Providers
than is granted to Company 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 City shall be given a competitive
advantage over Company.
Section 8. Grantor Rights.
The right is hereby reserved to the City to adopt such 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 Company, or conflict with or otherwise interfere with the
benefits conferred on the Company hereunder. In the event of a conflict between this
Franchise Agreement and any other ordinance or regulation adopted by the City relating
to Company's rights to perform work in and/or occupancy of the Rights of Way as
permitted hereunder, the rights under this Franchise Agreement shall govern and
control.
Section 9. Work In Rights Of Way.
The Company is hereby granted the right, authority and privilege to perform all
necessary work, any construction and excavations in said Rights of Way of the City
related to its Facilities and necessary or incidental to carrying out such rights and
obligations as permitted hereunder. The Company 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 the Company's business,
together with all the rights and privileges necessary or convenient for the full use
including the right to trim, cut and keep clear all trees and limbs near or along
Company's Facilities that may in any way endanger the proper operation of same.
Moreover, the Company shall have the right to construct, erect, operate and maintain
within the City an electric system consisting of its Facilities for carrying on the
Company's business; provided that, in accomplishing these purposes, the streets of
said City shall not be unnecessarily obstructed for an unreasonable amount of time and
work in connection therewith shall be done and carried on in conformity with such
reasonable rules, standards, regulations and local ordinances with reference thereto as
may be adopted by the City for the protection of the public and which are not in conflict
with or otherwise interfere with the benefits conferred on the Company hereunder. The
Company agrees that if they make any excavation in the Rights of Way (in its discretion
and not per the direction or request of the City) to install or maintain its Facilities it shall
use reasonable efforts (consistent with generally accepted practices and principles) to
place such Rights of Way in as good condition and repair as before such excavation
with due diligence and dispatch.
Section 10. Indemnification.
(a). The acceptance of this Franchise by Company shall be deemed an
agreement on the part of Company to indemnify City and hold it harmless against any
and all direct damages, claims, expenses, reasonable attorneys' fees (including
appellate fees) and costs that City may incur to the extent arising out of or resulting from
the negligence or willful misconduct of Company, its contractors and agents in the
construction, repair, operation, or maintenance of its electric utility Facilities hereunder.
In no event shall Company be liable to City for any consequential, incidental, punitive,
exemplary, multiple, or indirect damages, lost profits or other business interruption
damages, by statute, in tort (including negligence or strict liability), in contract, or under
any indemnity provision or otherwise.
(b) Company shall maintain throughout the term of this Franchise sufficient
financial resources to provide self- insurance insuring City and Company with regard to
all damages in the minimum amounts of:
(i) $1,000,000 for bodily injury or death to a person;
$3,000,000 for bodily injury or death resulting from any one
accident.
(ii) $50,000 for property damage resulting from any one accident.
(iii) $1,000,000 for all other types of liability.
(c). City acknowledges that Company provides its own liability insurance (self-
insured).
Section 11. Records And Reports.
(a). Company Rules and Regulations. The following documents shall be
available to City upon City's reasonable request: copies of rules, regulations, and
procedures adopted by Company that relate to Company's "use of City's Rights of Way.
(b). Accounting. Company shall use the system of accounts and the form of
books, accounts, records, and memoranda prescribed by the Public Service
Commission or such other applicable governing agency having jurisdiction over
Company as determined by Company.
(c). Reports. Company will submit monthly a statement of its estimated Base
Revenues for the period on which such payment is based. The acceptance of any
statement or payment shall not prevent the City 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 this Ordinance.
(d). Availability of Records and Reports. Company shall supply information
that City or its representatives may from time to time reasonably request relative to the
calculation of franchise fees. Such records shall, on written request of City, be open for
examination and audit by City and City's representatives at Company's headquarters in
St. Petersburg, Florida, during ordinary business hours and such records shall be
retained by Company for a period of three (3) years.
(e). Audit. City may require, upon prior written notice and during Company's
normal business hours, an audit of Company's books related to this Agreement not
more than once every three (3) years. Company will reimburse City's audit costs if the
audit identifies errors in Company's franchise Base Revenues of five percent (5%) or
more for the period audited. If an underpayment of franchise fees has occurred due to
the Company's error, interest will be calculated for each month of the underpayment
period using the average monthly interest rate based on thirty (30) day commercial
paper. Both the underpayment and interest shall be paid within ninety (90) days from
completion of the audit.
(f). Customer Report. Within ninety (90) days of the Effective Date of this
Agreement, City shall provide to Company a report in a format acceptable to Company
setting forth a listing of all addresses within the corporate limits of the City and annually
thereafter a report identifying any changes to the address listing provided the previous
year.
Section 12. Retail Wheeling.
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 the Franchise Fee
payments between The Company and the City. 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 Seminole County, Florida for declaratory relief as to the proper
Franchise Fee in light of Retail Wheeling.
Section 13. Governing Law And Venue.
(a). This Franchise ordinance shall be construed and interpreted according to
the laws of the State of Florida.
(b). In the event that any legal proceeding is brought to enforce the terms of
this Franchise, the same shall be brought in Seminole County, Florida, or, if a federal
claim, in the U.S. District Court in and for the Middle District of Florida, Orlando Division
Section 14. Merger.
This Franchise agreement is the full, complete and entire understanding and
agreement of the parties as to its subject matter, and the written terms supersede all
prior contemporaneous representations, discussions, negotiations, understanding and
agreements relating to the subject matter of this Franchise agreement. The parties shall
not be bound or liable for any statement, prior negotiations, correspondence,
representation, promise, draft agreements, inducements, or other understanding of any
kind or nature not set forth or provided herein.
Section 15. Notices.
Except in exigent circumstances, all notices by either City or Company to the
other shall be made by depositing such notice in the United States Mail, Certified Mail
return receipt requested or by recognized commercial delivery, e.g. FedEx, UPS or DHL
or 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 the next
Business Day. "Business Day" for purposes of this section shall mean Monday through
Friday, with Saturday, Sunday and City or Company observed holidays excepted. All
notices shall be addressed as follows:
To City:
City Clerk
City of Sanford
P.O. Box 1788
Sanford, Florida 32772-1788
Phone: (407) 688-5010
Facsimile: (407) 699-5011
Section 16. Non-Waiver Provision.
To Company:
External Relations Department
Duke Energy
P.O. Box 14042
St. Petersburg, Florida 33733-4042
Phone: (727) 820-5141
Facsimile No.: (727) 820-5715
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 17. Dispute Resolution.
The parties to this Franchise agree that it is in each of their respective best
interests to avoid costly litigation as a means of resolving disputes which may arise
hereunder. Accordingly, the parties agree that prior to pursuing their available legal
remedies they will meet in an attempt to resolve any differences. If such informal effort
is unsuccessful, then the Parties may exercise any of their available legal remedies.
Section 18. Implementing Administrative Actions.
The City Manager is hereby authorized and directed to implement the provisions
of this Ordinance as may be deemed necessary or appropriate by the City Manager.
Section 19. Savings.
The prior actions of the City of Sanford in terms of the matters relating to the
award of franchises relative to the provision of electric power, as well as any and all
related matters, are hereby ratified and affirmed.
Section 20. Conflicts.
All ordinances or part of ordinances in conflict with this Ordinance are hereby
repealed.
Section 21. Severability.
If any section, sentence, phrase, word, or portion of this Ordinance is determined
to be invalid, unlawful or unconstitutional, said determination shall not be held to
invalidate or impair the validity, force or effect of any other section, sentence, phrase,
word, or portion of this Ordinance not otherwise to be invalid, unlawful, or
unconstitutional.
Section 22. Non-Codification.
(a). The provisions of this Ordinance shall not be included and incorporated
within the Land Development Regulations of the City of Sanford, Florida, and neither the
Land Development Code nor the Code of Ordinances of the City of Sanford shall be
revised to accommodate such inclusion.
(b). Typographical errors and other matters of a similar nature that do not
affect the intent of this Ordinance, as determined by the City Clerk and City Attorney,
may be corrected with the endorsement of the City Manager, or designee, without the
need for a public hearing.
Section 23. Effective Date.
This Ordinance shall take effect immediately upon passage and adoption.
Passed and adopted this 12th day of June, 2017.
Attest:
City Commission
Sanford, Florida,
Florida,
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CynIhia Porter, City Clerk
Approved as to form and
Legality:
ffilliaim C Colbert, Esquire
City Attorney
of the City of
Seminole County,
AGREEMENT OF DUKE ENERGY FLORIDA, LLC
All matters set forth in this Ordinance are agreed to in every respect by Duke Energy
Florida, LLC.
Authorizgd Binding Corporate Signatory
Printed Name:
Title:
Duke Energy Florida, LLC
Attest.*
A616orized Attesting Corporate Signatory
Printed Name: ] ck- -Vim. l
Title: z4WO 04--
Duke Energy Florida, LLC