[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.
- FRANCHISE AREA
- That area for which the company provides electric utility service within the corporate City limits of the City.
- 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.
- 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.
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.
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:
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.
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.
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.
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.
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.
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.
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.
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.
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:
The City acknowledges that the company provides its own liability insurance (self-insured).
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.
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.
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.
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.
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.
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.
This franchise chapter shall be construed and interpreted according to the laws of the State of Florida.
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:
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 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.
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.