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.
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 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.
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 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 § 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.
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 a generation,
transmission, and distribution system, with such extensions thereof
and additions hereto as shall hereafter be made.
FACILITIES
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.
FRANCHISE AREA
That area for which Company provides electric utility service
within the corporate City limits of the City.
ORDINANCE
The ordinance titled and described in the preamble herein
and ordained by the City Commission of South Pasadena, Florida.
PERSON
Any person, firm, partnership, association, corporation,
company, or organization of any kind.
RETAIL WHEELING
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.
RIGHTS-OF-WAY
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.
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.
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.
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:
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.