[HISTORY: Adopted by the City Commission
of the City of South Pasadena 6-8-2021 by Ord. No. 2021-01.[1] Amendments noted where applicable.]
[1]
Editor's Note: This ordinance also repealed former Ch. A197,
Electric Franchise, concerning the Progress Energy Florida Right-of-Way
Utilization franchise, adopted 6-14-2011 by Ord. No. 2011-06.
The City of South Pasadena, Florida ("City" or "Grantor") deems
it necessary, desirable, and in the interest of its citizens to establish
by ordinance a rights-of-way utilization franchise (sometimes referred
to herein as the "franchise") granting Duke Energy Florida, LLC, d/b/a
Duke Energy ("Company" or "Grantee"), permission to occupy the rights-of-way
in the City for the purpose of providing electric services.
This chapter shall be known and may be cited as the "Duke Energy
Rights-of-Way Utilization Franchise."
For the purposes of this chapter, the following terms, phrases,
words, and their derivatives shall have the meanings 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.
For the Company, a loss of 1% of base revenues within the
corporate City limits due to retail wheeling. For the City, a loss
of 1% of franchise fees due to retail wheeling.
All of Company's revenues from the retail sale of electricity,
net of customer credits, to residential, commercial, and industrial
customers and City-sponsored streetlighting, all within the corporate
limits of the City.
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 of 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.
Shall have the meaning set out in § 366.02(2),
Florida Statutes (2020), and shall also include every electric "public
utility" as defined in § 366.02(1), Florida Statutes (2020).
"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.
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 hereto as shall hereafter be made.
Conduits, cables, poles, wires, streetlighting, supports,
and such other structures, appurtenances, or accessories 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.
That area for which Company provides electric utility service
within the corporate City limits of the City.
Shall have the meaning set forth in § A197-6 of this chapter.
The ordinance titled and described in the preamble herein
and ordained by the City Commission of South Pasadena, Florida.[1]
Any person, firm, partnership, association, corporation,
company, or organization of any kind.
The Florida Public Service Commission.
A customer/supplier arrangement whereby an electric energy
provider utilizes transmission and/or distribution facilities of Company
to make energy sales directly to an end use customer located within
the franchise area.
All of the public streets, alleys, highways, waterways, easements,
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, consolidated or annexed
to the City.
A.Â
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 nonexclusive 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 and future limits of the City, 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 chapter 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 (as defined in § A197-5) of this chapter, regardless of whether such poles, wires or other facilities are located outside rights-of-way as defined herein. Nor shall anything in this chapter prohibit Company from performing upgrades, replacements, maintenance or servicing of such poles, wires, or other facilities after the effective date of this chapter. Rather, all such preexisting poles, wires, or other facilities shall be authorized under this chapter. Because this franchise is intended to grant Company the nonexclusive, 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 apply for, obtain, or pay for permits to construct, operate, maintain, or remove its facilities within the rights-of-way.
B.Â
Annexation or contraction.
(1)Â
City represents that as of the date of the adoption of this chapter,
it has provided Company with accurate information for all residential,
commercial and industrial customers and City-sponsored streetlighting
that are within the franchise area. Company shall be responsible for
remitting the franchise fee only to service and billing addresses
identified as being within the franchise area as of the date of this
chapter. However, 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 60 days of such approval, and this franchise shall automatically
extend to include any such annexed areas.
(2)Â
Additionally, within 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,
street address number ranges, applicable directional and zip codes
associated with each street name, all zip codes assigned to geographic
areas located entirely within the City (including zip codes assigned
to post office boxes), and all post office box number ranges and the
city names and zip codes associated therewith. For a range of street
address numbers located within City which consists only of odd or
even street numbers, the list must specify whether the street numbers
in the range are odd or even. Subject to Subsection A(1), Company
shall be responsible for remitting the franchise fee only to service
and billing addresses identified as being within the franchise area
contained in a list which includes all the required elements in this
subsection.
(3)Â
The lists shall be provided by email; except that if a list is available
on another medium, the City shall, upon request, furnish the list
on such medium in addition to, or in lieu of, the emailed list. The
municipality shall be responsible for updating the lists as changes
occur and for furnishing this information to the Company.
(4)Â
All notices of annexation or contraction and address listings shall
be addressed to the annexation coordinator as follows, with the address
subject to change:
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Duke Energy
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Tax Team DT02-V
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9700 David Taylor Drive
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Charlotte, NC 28262
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And by email to: TaxTeam@duke-energy.com
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(5)Â
Company must revise its payments due to any annexation or contraction
within a reasonable time after Company has received such notice and
updated list from City, but no later than 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.Â
Use of the rights-of-way. During the term of the franchise granted
herein, Company shall be the sole electric utility allowed to use
and occupy the rights-of-way; provided, however, the Company's
right to use and occupy rights-of-way for the purposes set forth herein
shall be nonexclusive as to entities not engaged in the provision
of electric energy service, and the City reserves the right to grant
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. In addition to any other rights and/or remedies
Company may have under this chapter or at law or in equity, should
City permit an electric utility other than Company to use and occupy
the rights-of-way, City agrees that Company shall be entitled to seek
injunctive relief.
A.Â
This chapter 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 30 days after the City Commission's
approval of this chapter by filing its written acceptance with the
City Clerk. If grantee fails to accept this franchise within 30 days
of its date of passage and adoption, then this chapter shall be null
and void, and of no force and effect of any kind.
B.Â
Commencing on the effective date, the term of the franchise granted
herein shall be for a period of 10 years. Thereafter, the franchise
granted by this chapter will renew automatically for up to two successive
five-year periods, unless either party provides the other with written
notice of its intent to forego automatic renewal at least 12 months
prior to the date of the automatic renewal.
C.Â
If the franchise expires without the parties entering a new franchise
agreement, then the Company will continue to pay unto the City franchise
fees, as provided in this agreement, during the period of such negotiations,
provided that City is actively engaged in good faith negotiations
toward the execution of a new franchise agreement.
A.Â
Effective the first day of the second month beginning after the effective
date of this chapter, City shall be entitled to receive from Company
a monthly franchise amount that will equal 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 fees 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 20th day of the following month. The
monthly payment shall be made by wire transfer. Any monthly payment
or any portion thereof made 20 days after the due date without good
cause shall be subject to interest at the rate of 10% per annum.
B.Â
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.Â
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.
A.Â
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 § A197-6 above, grantee shall notify grantor, and grantor reserves the right to amend this franchise to increase the franchise fee payable under this chapter 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 franchise 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.Â
It is the intent and agreement of grantor and grantee that should applicable laws change to expressly prohibit Company from being the sole electric utility allowed to use and occupy the rights-of-way, grantee shall not be required to pay grantor a franchise fee under § A197-6 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 § A197-6 of this chapter in the event other Electric Utilities or electric energy providers provide services in competition with grantee without utilizing grantor's rights-of-way.
C.Â
In the event applicable laws change to expressly prohibit Company from being the sole electric utility allowed to use and occupy the rights-of-way, and if grantor imposes a lesser fee, 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 franchise fee under § A197-6 for such services shall be automatically reduced to the lesser fee charged the other electric utility or electric energy provider (or to zero, 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 chapter; 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.
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,
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, and shall not conflict with
or otherwise interfere with the benefits conferred on the Company
hereunder. In the event of a conflict between this chapter and any
other ordinance or regulation adopted by the City or actions (or inactions)
of 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 chapter shall govern and control. In the event of such
conflict, the City and Company agree to work together in good faith
to address and resolve such conflict; provided, however, that Company
shall be permitted to continue to exercise the rights granted herein
during the resolution of any conflict.
The Company is hereby granted the right, authority and privilege
to perform all necessary work 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, 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, remove and keep clear all trees and limbs near or along Company's
facilities that may in any way endanger the proper operation or access
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.
A.Â
The acceptance of this franchise by Company shall be deemed an agreement
on the part of Company to indemnify City and hold it harmless from
and against any and all direct damages, claims, expenses, reasonable
attorneys' fees (including appellate fees) and costs incurred
by the City arising out of the death of or bodily injury to any person,
or the destruction of or damage to any property and caused by the
negligence or willful misconduct of Company, its contractors and agents
in the construction, repair, operation, or maintenance of its electric
utility facilities hereunder. Company shall not be required to indemnify
and hold harmless City for any damages, claims, expenses, reasonable
attorneys' fees and costs arising out of or resulting from the
negligence or willful misconduct of City, its employees, contractors
and/or agents. 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.Â
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 set forth in § A197-10A in the minimum amounts of:
C.Â
City acknowledges that Company provides its own liability insurance
(self-insured).
A.Â
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.Â
Accounting. Company shall use the system of accounts and the form
of books, accounts, records, and memoranda prescribed by the Florida
Public Service Commission or such other applicable governing agency
having the right to regulate Company's accounting procedures.
C.Â
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 § A197-6A.
D.Â
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, subject to
the Company's obligation to keep certain records confidential.
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 years.
E.Â
Audit. City may require an audit of Company's books related
to this chapter upon prior written notice and during Company's
normal business hours not more than once every three years and then
only for the preceding three years. Company will reimburse City's
audit costs if the audit identifies errors in Company's franchise
base revenues of 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 at the rate of 10% per annum. Both the underpayment
and interest shall be paid within 90 days from completion of the audit.
F.Â
Customer report. In addition to City's obligations in § A197-4B, within 90 days of the effective date of this chapter, City shall provide to Company a report in a format acceptable to Company setting forth a list containing the new or removed street names, known street name aliases, street addresses, street address number ranges, and applicable directional and zip codes associated with each street name. City shall annually thereafter provide a report identifying any changes to the address listing provided the previous year. For a range of street address numbers located within City which consists only of odd or even street numbers, the list must specify whether the street numbers in the range are odd or even.
In the event the appropriate governmental authorities authorize
retail wheeling, then either party, if adversely affected thereby,
may reopen this chapter upon 30 days' written notice to the other
for the sole purpose of addressing the franchise fee payments between
Company and the City. If the parties are unable to agree within 90
days of reopening, either party may declare an impasse and may file
an action in the Circuit Court in Pinellas County, Florida, for declaratory
relief as to the proper franchise fee in light of retail wheeling.
Should any section or provision of this chapter or any portion
thereof, the deletion of which would not adversely affect 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 part thereof, other than the part declared
to be invalid. In the event of any such partial invalidity, City and
Company shall meet and negotiate in good faith to obtain a replacement
provision that is in compliance with the judicial authority's
decision.
A.Â
This chapter shall be construed and interpreted according to the
laws of the State of Florida.
B.Â
In the event that any legal proceeding is brought to enforce the
terms of this chapter, the same shall be brought in the appropriate
state court in Pinellas County, Florida, or, if a federal claim, in
the U.S. District Court in and for the Middle District of Florida,
Tampa Division.
This chapter is the full, complete and entire understanding
and agreements 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 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.
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 with delivery receipt requested
(e.g., FedEx, UPS or DHL). Any such notice shall be deemed to have
been given when received by the recipient based on the delivery receipt.
All notices shall be addressed as follows:
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To City:
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To Company:
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City Clerk
City of South Pasadena
7047 Sunset Drive South
South Pasadena, FL 33707
Phone: (727) 347-4171
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Duke Energy
Government & Community Relations Dept.
299 1st Street North - FL 163
St. Petersburg, FL 33701
Phone: (727) 820-5474
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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 chapter 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.
This chapter shall supersede, as to the rights, privileges,
and obligations between City and Company, all ordinances and parts
of ordinances in conflict with the terms of this chapter. Ordinance
No. 2011-06 and any amendments thereto are hereby deemed null and
void and/or repealed upon the effective date of this chapter and none
of the provisions of such repealed Ordinance No. 2011-06 and any amendments
thereto shall have any further force and effect.
The parties to this chapter 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.
