[HISTORY: Adopted by the City Commission
of the City of South Pasadena 6-14-2011 by Ord. No. 2011-06. Amendments noted
where applicable.]
The City deems it necessary, desirable and in the interest of
its citizens to establish by ordinance a right-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
South Pasadena, Florida, for the purpose of providing electric services.
This chapter shall be known and may be cited as the "Progress
energy Florida Right-of-Way Utilization franchise."
For the purposes of this chapter, 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.
- ADVERSELY AFFECTED
- 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.
- 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 streetlighting all within the corporate limits of the Ciy.
- CITY or GRANTOR
- The City of South Pasadena, Florida.
- COMPANY or GRANTEE
- Florida Power Corp., d/b/a Progress energy Florida Inc., its successors and assigns.
- 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 company 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.
- 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 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 country.
- 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 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 generation, transmission, and distribution system, with such extensions thereof and additions thereto as shall hereafter be made.
- FACILITIES
- Has the meaning as set forth in § A197-4.
- FRANCHISE AREA
- That area for which the company provides electric utility service within the corporate City limits of the City.
- PERSON
- Any person, firm, partnership, association, corporation, company or organization of any kind.
- PUBLIC SERVICE COMMISSION
- The Florida Public Services Commission.
- RETAIL WHEELING
- A customer/supplier arrangement whereby an electric energy provider utilizes transmission and/or distribution facilities of the company to make energy sales directly to an end use customer located within the franchise area.
- RIGHTS-OF-WAY
- All of the public streets, alleys, highways, waterways, bridges, sidewalks, easements and also parks as they are currently occupied by the grantee's facilities, 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.
A.
This grant of authority is limited to the provision by the company
to 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 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 utility
system, and 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 chapter shall require the
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 chapter, regardless of whether such poles, wires or other facilities
are located outside "rights-of-ways" as defined herein. Nor shall
anything in this chapter prohibit the 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. The grantee acknowledges that the grantor has
no authority to authorize the encroachment of the grantee's facilities
on private property and while the City will not seek removal the property
owner may be entitled to relief. Because this franchise is intended
to grant the company the nonexclusive but unrestricted right to place
its facilities within the rights-of-way, the City expressly acknowledges
and agrees that the company shall not be required to pull or pay for
permits to perform any work maintenance activities on or related to
its facilities within the rights-of-way.
B.
Annexation or contraction. The City and the company agree that the
franchise area is subject to expansion or reduction by annexation
and contraction of municipal boundaries. If the City approves any
franchise area expansion or reduction by annexation or contraction,
the City will provide written notice to the 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. Additionally, within 60 days of any such annexation
or contraction, the City shall provide to the 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:
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Progress energy
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Annexation Coordinator
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P. O. Box 33199
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St. Petersburg, FL 33733-8199
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Or by email to: [email protected]
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The company must revise its payments due to any expansion or
reduction by annexation within a reasonable time after the company
has received such notice and updated list from the City, but no later
than 60 days after receipt of notice and the list. The 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, the City acknowledges that if such information
is not timely furnished to the company as required herein, any related
obligation to collect payments shall be suspended during the period
of delay.
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C.
Nonexclusive use. The company's right to use and occupy rights-of-way
for the purposes herein set forth shall be nonexclusive 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 the company herein.
This chapter shall become effective upon being legally passed
and adopted ("effective date") by the City Commission; and it is further
agreed that the 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 the grantee fails to accept this franchise within 30
days of its date of passage, then this chapter shall be null and void,
and of no force and effect of any kind. The term of the franchise
granted herein shall be for a period of 10 years commencing on the
effective date.
A.
Effective the first day of the second month beginning after the effective
date of this chapter, the City shall be entitled to receive from the
company a monthly franchise amount that will equal 6% of the company's
base revenues (the "franchise fee") for the preceding month, which
amount shall be the total compensation due the 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 or to do business
within the franchise area. Any franchise amounts that will be paid
to the City will be collected by the company from the 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 the company
for the exercise of its rights granted hereunder. Payment shall be
made to the 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 calculated
for each month of the underpayment period using the average monthly
interest rate based on thirty-day commercial paper.
B.
Only disputed amounts shall be allowed to be withheld by the company,
and any such amounts shall not accrue any interest during the pendency
of any such dispute.
C.
The City acknowledges that all classifications and categories of
customers of the company shall be subject to the payment of the franchise
fee due hereunder.
A.
In the event the 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, the grantee shall notify the grantor, and the grantor reserves the right to amend this franchise under § A197-6 to increase the franchise fee payable under this chapter to no more than the greater franchise fee that the grantee has agreed to pay to such other municipality. The grantee's obligation to pay such greater franchise fee to the grantor shall apply prospectively beginning with the next monthly franchisee fee payment following the grantor's timely notice of its exercise of its amendment right to which the grantee may collect such increased fee from its customers. The grantee's failure to notify the grantor of such additional payments does not limit the grantor's right to amend to require such additional franchise fees.
B.
It is the intent and agreement of the grantor and the grantee that the grantee shall not be required to pay the grantor a franchise fee under § A197-6 of a percentage greater than that paid to the grantor by any other electric utility or electric energy provider utilizing the 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 the grantee.
C.
The grantor, to the extent allowed under law, will impose, enforce and collect equivalent franchise fee revenues from any other electric utility or electric energy provider providing or seeking to provide services that are the same or substantially the same as those provided by the grantee to customers within the grantor's municipal boundaries, whether utilizing the grantor's rights-of-way or not utilizing the grantor's rights-of-way. If the grantor imposes a lesser fee, or no fee, the grantee's 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, the City shall not grant more favorable treatment to other electric energy providers than is granted to the company under this chapter. The City shall not be deemed an electric energy provider for this provision to the extent it self-generates electricity for its own use or services in accordance with all applicable rules, laws, and tariff regulations. Services for the purpose of the provision shall include but not be limited to city-owned solar traffic lights, solar streetlights, solar or electric charging stations or solar trash compactors.
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 the 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.
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 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 right 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 the 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.
A.
The acceptance of this franchise by the company shall be deemed an
agreement on the part of the company to indemnify the City and hold
it harmless against any and all direct damages, claims, expenses,
reasonable attorneys' fees (including appellate fees) and costs
that the City may incur to the extent arising out of or resulting
from the negligence, default, or misconduct of the company, its contractors
and agents in the construction, repair, operation, or maintenance
of its electric utility facilities hereunder. In no event shall the
company be liable to the 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.
The company shall maintain throughout the term of this franchise sufficient financial resources to provide self-insurance insuring the City and the company with regard to all damages set forth in § A197-8 in the minimum amounts of:
C.
The City acknowledges that the company provides its own liability
insurance (self-insured).
A.
Company rules and regulations. The following records and reports
shall be available to the City upon the City's reasonable request:
copies of rules, regulations, terms and conditions adopted by the
company that relate to the company's use of the City's rights-of-way.
B.
Accounting. The 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 jurisdiction over the company.
C.
Reports. The 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 § A197-6B.
D.
Availability of records and reports. The company shall supply information
that the 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 the City, be open for examination and
audit by the City and the City's representatives at the company's
headquarters in St. Petersburg, Florida, during ordinary business
hours and such records shall be retained by the company for a period
of two years.
E.
Audit. The City may require, upon prior written notice and during
the company's normal business hours, an audit of the company's
books related to this agreement not more than once every five years
and then only for the preceding three years. The company will reimburse
the City's audit costs if the audit identifies errors in the
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 for each month
of the underpayment period using the average monthly interest rate
based on thirty-day commercial paper. Both the underpayment and interest
shall be paid within 90 days from completion of the audit.
F.
Customer report. In addition to the City's obligations in § A197-4B, within 90 days of the effective date of this agreement, the City shall provide to the company a report in a format acceptable to the 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.
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
the 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 franchise 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,
the 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.
This franchise chapter 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 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 franchise agreement 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, e.g., FedEx, UPS or DHL or facsimile.
Any notice served by certified mail, return receipt, shall be deemed
delivered five days after the date of such deposit in the United States
mail unless otherwise provided. Any notice given by facsimile is deemed
received by next business day. "Business day," for purposes of this
section, shall mean Monday through Friday, with Saturday, Sunday and
City- and company-observed holidays excepted. 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
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External Relations Department
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7047 Sunset Drive South
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Progress Energy Services
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South Pasadena, FL 33707
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Company, LLC
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Phone: (727) 347-4171
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P.O. Box 14042
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Facsimile No.: (727) 345-0518
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St. Petersburg, FL 33733-4042
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Facsimile No.: (727) 820-5715
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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 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.
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 Documentary
No. 2001-02[1] 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 Documentary No.
2001-02 and any amendments thereto shall have any further force and
effect.
[1]
Editor's Note: Ordinance No. 2001-02, adopted 6-26-2001,
comprised former Ch. A197, Electric Franchise.
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.
