HomeMy WebLinkAboutOrdinance No. 05-2011 ORDINANCE NO. 05-2011
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
CAPE CANAVERAL, BREVARD COUNTY, FLORIDA,
GRANTING TO FLORIDA POWER & LIGHT COMPANY, ITS
SUCCESSORS AND ASSIGNS, AN ELECTRIC FRANCHISE,
IMPOSING PROVISIONS AND CONDITIONS RELATING
THERETO, PROVIDING FOR MONTHLY PAYMENTS TO THE
CITY; PROVIDING FOR THE REPEAL OF PRIOR
INCONSISTENT ORDINANCES AND RESOLUTIONS,
PROVIDING FOR QUALIFIED SEVERABILITY, PROVIDING
FOR INCORPORATION INTO APPENDIX "A" OF THE CITY
CODE, AND PROVIDING FOR AN EFFECTIVE DATE.
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WHEREAS, the City Council is granted the authority, under Section 2(b), Article
VIII, of the State Constitution, to exercise power for municipal purposes, except when
expressly prohibited by law; and
WHEREAS, Section 166.021(1) provides that municipalities shall have the
governmental, corporate, and proprietary powers to enable them to conduct municipal
government, perform municipal functions, and render municipal services, and may
exercise any power for municipal purposes except when expressly prohibited by law; and
WHEREAS, the City Council of the City of Cape Canaveral, Florida recognizes
that the City of Cape Canaveral and its citizens need and desire the continued benefits of
electric service; and
WHEREAS, Florida Power & Light Company (FPL) is a public utility which has
the demonstrated ability to supply such services; and
WHEREAS, on December 15, 1981, the City Council granted a 30 year franchise
to Florida Power & Light Company (FPL) for the purpose of supplying electricity to the City
and for the other purposes stated therein; and
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WHEREAS, there is currently in effect a franchise agreement between the City of
Cape Canaveral and FPL, the terms of which are set forth in City of Cape Canaveral
Ordinance No 25 -81, passed and adopted on December 15, 1981, and FPL's written
acceptance thereof dated December 28, 1981, granting to FPL, its successors and
1 assigns, a thirty (30) year electric franchise ( "Current Franchise Agreement "); and
)
WHEREAS, FPL and the City of Cape Canaveral desire to enter into a new
agreement (New Franchise Agreement) providing for the payment of fees to the City of
Cape Canaveral in exchange for the nonexclusive right and privilege of supplying
electricity and other directly electric - related services within the City of Cape Canaveral free
of competition from the City of Cape Canaveral, pursuant to certain terms and conditions,
and
WHEREAS, the City and FPL stipulate and agree that the franchise fee identified
1 herein is reasonably related to the value that FPL receives from '
y es o the City's agreement not
to compete under Section 7 hereof, the extent of FPL's use of the City's public rights-of-
way, and the value of other consideration as set forth in this Ordinance, and
WHEREAS, the City Council of the City of Cape Canaveral deems it to be in the
best interest of the City of Cape Canaveral and its citizens to enter into the New Franchise
Agreement prior to expiration of the Current Franchise Agreement;
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY
OF CAPE CANAVERAL, FLORIDA:
Section 1. Grant of Electric Utility F
I ty ranchise; Term of Franchise. There is
hereby granted to Florida Power & Light Company, its successors and assigns (hereinafter
called the "Grantee "), for the period of thirty (30) years from the effective date hereof, the
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nonexclusive right, privilege and franchise (hereinafter called "franchise ") to construct,
operate and maintain, in accordance with the National Electrical Safety Code to the extent
applicable, in under, upon, along, over and across the present and future roads, streets,
alleys, bridges, publicly dedicated rights -of -way, applicable publicly dedicated utility
easements and other public places (hereinafter called "public rights -of- way ") in the City of
Cape Canaveral, Florida, and its successors (hereinafter called the "Grantor") throughout
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all of Grantor's incorporated areas, as such incorporated areas may be constituted from
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time to time, in accordance with the Grantee's customary practice with respect to
construction and maintenance, electric light and power facilities, including, without
limitation, conduits, poles, wires, transmission and distribution lines, and all other facilities
installed in conjunction with or ancillary to all of the Grantee's operations (hereinafter
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called "facilities "), for the purpose of supplying electricity and other directly electric - related
services to the Grantor and its successors, the inhabitants thereof, and persons beyond
j the limits thereof. This grant is intended to provide a franchise to Grantee for the provision
of electric and directly electric - related services, and is not intended to be a grant or
franchise for the placement or construction of gas lines or appurtenances thereto, or for
fiber optics or appurtenances thereto.
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1 Section 2. Facilities Requirements.
(a) The facilities of Grantee shall be so located, relocated, installed, constructed
and so erected as to not unreasonably interfere with the convenient, safe, continuous use
or the maintenance, improvement, extension or expansion of any public "road" as defined
under the Florida Transportation Code, nor unreasonably interfere with reasonable egress
from and ingress to abutting property.
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i (b) To minimize conflicts with the standards set forth in subsection (a) above,
the location, relocation, installation, construction or erection of all facilities shall be made
as representatives of the Grantor may prescribe in accordance with all applicable federal,
state and local statutes, laws, ordinances, rules and regulations and pursuant to Grantor's
valid rules and regulations with respect to utilities' use of public rights -of -way relative to the
placing and maintaining, in, under, upon, along, over and across said public rights -of -way,
provided, such rules and regulations shall be
(i) for a valid municipal purpose;
(n) shall not prohibit the exercise of Grantee's right to use said
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public rights -of -way for reasons other than conflict with the standards set forth above;
(iii) shall not unreasonably interfere with the Grantee's ability to
furnish reasonably sufficient, adequate and efficient electric service to all of its customers
while not conflicting with the standards set forth above; or
(iv) shall not require relocation of any of the Grantee's facilities
installed before or after the effective date hereof in any public right -of -way unless or until
the facilities unreasonably interfere with the convenient, safe, or continuous use, or the
maintenance, improvement, realignment, extension, or expansion, of such public "road ".
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(c) Such rules and regulations shall recognize that above -grade facilities of the
Grantee installed after the effective date hereof should, unless otherwise permitted, be
installed near the outer boundaries of the public rights -of -way to the extent possible and
such installation shall be consistent with the Florida Department of Transportation's
Manual of Uniform Minimum Standards for Design, Construction and Maintenance for
Streets and Highways.
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(d) When any portion of a public right -of -way is excavated, damaged or
impaired by Grantee or any of its agents, contractors or subcontractors because of the
installation, inspection, or repair of any of its facilities, the portion so excavated, damaged
or impaired shall, within a reasonable time and as early as practicable after such
excavation, be restored to its original condition before such damage by the Grantee at
Grantee's expense.
1 (e) If Grantor requires the removal or relocation of Grantee's facilities because
the facilities interfere with the standards set forth in subsection (a) above, and Grantee
fails to remove or relocate such facilities at Grantee's expense within thirty (30) days after
written notice from Grantor, then Grantor may proceed to cause the facilities to be
removed or relocated and the expense therefore shall be charged against the Grantee.
(f) The Grantor shall not be liable to the Grantee for any cost or expense
incurred in connection with the relocation of any of the Grantee's facilities required under
this Section, except, however, that Grantee may be entitled to reimbursement of its costs
and expenses from others and as provided by law.
Section 3. Indemnification. The Grantor shall in no way be liable or
responsible for any accident or damage that may occur in the construction, operation or
maintenance by Grantee of its facilities hereunder, and the acceptance of this ordinance
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shall be deemed an agreement on the part of the Grantee, to indemnify Grantor, its
officers, agents, attorneys, servants, employees, or contractors and hold it harmless
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against any and all liability, Toss, costs, injuries (including death), damages, attorneys'
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fees, or expense, which may accrue to, or be incurred by or charged against Grantor or
any of its officers, agents, attorneys, servants, employees, or contractors by reason of
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installation, location, relocation, construction, reconstruction, operating, maintenance or
repair of Grantee's facilities or acts or omissions of negligence, gross negligence or
intentional torts, default or misconduct of the Grantee, its officers, directors, agents,
servants, employees, contractors, or subcontractors. The indemnity hereunder includes
not only the costs, expenses and attorneys' fees incurred by the Grantor in defense of any
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third party's claim (prior to and during all phases of litigation, including trial and post trial
and appellate proceedings) and also includes the costs, expenses and attorneys' fees
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incurred by the Grantor in the event it must enforce the terms of this indemnity prior to and
I during all litigation including trial, post trial and appellate proceedings. This indemnity shall
survive termination of this franchise, but only for incidents, acts or events, or for acts
undertaken
by Grantee, which take place during the term of this franchise.
Section 4. Rates, Rules and Regulations of Grantee. All rates and rules and
regulations established by the Grantee from time to time shall at all times be reasonable,
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subject to, and not in conflict with, such rules and regulations as may be provided by law.
Section 5. Franchise Fee. As a consideration for this franchise, the Grantee
j shall pay to the Grantor, commencing 90 days after the effective date hereof, and each
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month thereafter for the remainder of the term of this franchise, an amount which added to
the amount of all licenses, excises, fees, charges and other impositions of any kind
whatsoever (except ad valorem property taxes and non -ad valorem tax assessments on
property) levied or imposed by the Grantor against the Grantee's property, business or
operations and those of its subsidiaries during the Grantee's monthly billing period ending
60 days prior to each such payment will equal 6.0 percent of the Grantee's billed
revenues, Tess actual write -offs, from the sale of electrical energy to residential,
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commercial and industrial customers (as such customers are defined by FPL's tariff) within
the incorporated areas of the Grantor for the monthly billing period ending 60 days prior to
each such payment, and in no event shall payment for the rights and privileges granted
herein exceed 6.0 percent of such revenues for any monthly billing period of the Grantee.
The Grantor understands and agrees that such revenues as described in the
preceding are limited as in the existing franchise Ordinance No. 25 -81 to the
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precise revenues described therein, and that such revenues do not include, by way of
example and not limitation: (a) revenues from the sale of electrical energy for Public
Street and Highway Lighting (service for lighting public ways and areas); (b) revenues from
Other Sales to Public Authorities (service with eligibility restricted to governmental entities);
revenues from Sales to Railroads and Railways (service supplied for y ( pp d or propulsion of
electric transit vehicles); (d) revenues from Sales for Resale (service to other utilities for
resale purposes); (e) franchise fees; (f) Late Payment Charges; (g) Field Collection
Charges; (h) other service charges.
Section 6. Most Favored Nations. If during the term of this franchise the
Grantee enters into a franchise agreement with any other municipality located in Brevard
County, Florida, or within any contiguous county of Brevard County where the number of
Grantee's active electrical customers is equal to or less than the number of Grantee's
active electrical customers within the incorporated area of the Grantor, the terms of which
provide for the payment of franchise fees by the Grantee at a rate greater than 6.0% of the
Grantee's residential, commercial and industrial revenues (as such customers are defined
by FPL's tariff), under the same terms and conditions as specified in Section 5 hereof, the
Grantee, upon written request of the Grantor, shall negotiate and enter into a new
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franchise agreement with the Grantor in which the percentage to be used in calculating
monthly payments under Section 5 hereof shall be equal to that percentage which the
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Grantee has agreed to use as a basis for the calculation of payments to such other
municipality described above, provided, however, that such new franchise agreement shall
include benefits to the Grantee, in addition to all benefits provided herein, at least equal to
those provided by its franchise agreement with such other municipality described above.
Subject to all limitations, terms and conditions specified in the preceding sentence, the
Grantor shall have the sole discretion to determine the percentage to be used in
calculating monthly payments, and the Grantee shall have the sole discretion to determine
those benefits to which it would be entitled, under any such new franchise agreement.
Section 7. Non - Competition by Grantor. As a further consideration, during
the term of this franchise or any extension thereof, the Grantor agrees: (a) not to engage
in the distribution and /or sale, in competition with the Grantee, of electric capacity and /or
electric energy to any ultimate consumer of electric utility service (herein called a "retail
customer ") or to any electrical distribution system established solely to serve any retail
customer formerly served by the Grantee, (b) not to participate in any proceeding or
contractual arrangement, the purpose or terms of which would be to obligate the Grantee
to transmit and /or distribute, electric capacity and /or electric energy from any third
party(ies) to any other retail customer's facility(ies), and (c) not to seek to have the
Grantee transmit and /or distribute electric capacity and /or electric energy generated by or
on behalf of the Grantor at one location to the Grantor's facility(ies) at any other
location(s). Nothing specified herein shall prohibit the Grantor from engaging with other
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utilities or persons in wholesale transactions which are subject to the provisions of the
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Federal Power Act.
I Nothing herein shall prohibit the Grantor, if permitted by law, (i) from purchasing
electric capacity and /or electric energy from any other person, or (ii) from seeking to have
the Grantee transmit and /or distribute to any facility(ies) of the Grantor electric capacity
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and /or electric energy purchased by the Grantor from any other person; provided,
however, that before the Grantor elects to purchase electric capacity and /or electric
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energy from any other person, the Grantor shall notify the Grantee. Such notice shall
include a summary of the specific rates, terms and conditions which have been offered by
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the other person and identify the Grantor's facilities to be served under the offer. The
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Grantee shall thereafter have 90 days to evaluate the offer and, if the Grantee offers
rates, terms and conditions which are equal to or better than those offered by the other
person, the Grantor shall be obligated to continue to purchase from the Grantee electric
capacity and /or electric energy to serve the previously- identified facilities of the Grantor
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for a term no shorter than that offered by the other person. If the Grantee does not agree
to rates, terms and conditions which equal or better the other person's offer, then Grantor
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may proceed with the other person's offered sale and purchase arrangement and all of
the terms and conditions of this franchise shall remain in effect except as provided herein.
Section 8. Competitive Disadvantage; Termination by Grantee. If the
Grantor grants a right, privilege or franchise to any other person or otherwise enables any
other such person to construct, operate or maintain electric light and power facilities within
any part of the incorporated areas of the Grantor in which the Grantee may lawfully serve
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or compete on terms and conditions which the Grantee determines are more favorable
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than the terms and conditions contained herein, the Grantee may at any time thereafter
terminate this franchise if such terms and conditions are not remedied within the time
period provided hereafter. The Grantee shall give the Grantor at least 150 days advance
written notice of its intent to terminate. Such notice shall, without prejudice to any of the
rights reserved for the Grantee herein, advise the Grantor of such terms and conditions
that it considers more favorable. The Grantor shall then have 150 days in which to correct
or otherwise remedy the terms and conditions complained of by the Grantee. If the
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Grantee determines that such terms or conditions are not remedied by the Grantor within
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said time period, the Grantee may terminate this franchise agreement by delivering written
notice to the Grantor's Clerk and termination shall be effective on the date of delivery of
such notice.
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Section 9. Legislative or Regulatory Action. If as a direct or indirect
consequence of any legislative, regulatory or other action by the United States of America
or the State of Florida (or any department, agency, authority, instrumentality or political
subdivision of either of them) any person is permitted to provide electric service within the
incorporated areas of the Grantor to a customer then being served by the Grantee, or to
any new applicant for electric service within any part of the incorporated areas of the
1 Grantor in which the Grantee may lawfully serve, and the Grantee reasonably determines
that its obligations hereunder, or otherwise resulting from this franchise in respect to rates
and service, place it at a competitive disadvantage with respect to such other person, the
Grantee may, at any time after the taking of such action, terminate this franchise if such
competitive disadvantage is not remedied within the time period provided hereafter. The
Grantee shall give the Grantor at least 150 days advance written notice of its intent to
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terminate. Such notice shall, without prejudice to any of the rights reserved for the
Grantee herein, advise the Grantor of the consequences of such action which resulted in
the competitive disadvantage. The Grantor shall then have 150 days in which to correct or
otherwise remedy the competitive disadvantage. If such competitive disadvantage is not
remedied by the Grantor within said time period, the Grantee may terminate this franchise
I agreement by delivering written notice to the Grantor's Clerk and termination shall take
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effect on the date of delivery of such notice. Notwithstanding the foregoing, upon written
request of the Grantor within the 150 day notice period for a face to face meeting between
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1 representatives of the Grantor and Grantee, Grantee agrees that it shall meet in good faith
with Grantor prior to terminating the franchise. Nothing contained herein shall be
construed as constraining Grantor's right to legally challenge Grantee's reasonable
determination of competitive disadvantage leading to termination pursuant to Section 8
and /or 9 herein.
Section 10. Default by Grantee. Failure on the part of the Grantee to comply in
any substantial respect with any of the provisions of this franchise shall be grounds for
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forfeiture, but no such forfeiture shall take effect if the reasonableness or propriety thereof
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is protested by the Grantee until there is final determination (after the expiration or
1 exhaustion of all rights of appeal) by a court of competent jurisdiction that the Grantee has
failed to comply in a material respect with any of the provisions of this franchise, and the
Grantee shall have six months after such final determination to make good the default
before a forfeiture shall result with the right of the Grantor at its discretion to grant such
additional time to the Grantee for compliance as necessities in the case require.
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Section 11. Default by Grantor. Failure on the part of the Grantor to comply in
substantial respect with any of the provisions of this ordinance, including but not limited to:
I (a) denying the Grantee use of public rights -of -way for reasons other than unreasonable
interference with motor vehicular traffic; (b) imposing conditions for use of public rights -of-
way contrary to Florida law or the terms and conditions of this franchise; (c) unreasonable
delay in issuing the Grantee a use permit, if any, to construct its facilities in public rights -of-
way, shall constitute breach of this franchise and entitle the Grantee to withhold all or part
of the payments provided for in Section 5 hereof until such time as a use p ermit is issued
or a court of competent jurisdiction has reached a final determination in the matter.
Section 12. Grantor's Right to Audit. The Grantor may upon reasonable
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notice and within 180 days after each anniversary date of this franchise, at the Grantor's
expense, examine the records of the Grantee relating to the calculation of the franchise
payment for the year preceding such anniversary date. Such examination shall be during
normal business hours at the Grantee's office where such records are maintained.
Records not prepared by the Grantee in the ordinary course of business may be provided
at the Grantor's expense and as the Grantor and the Grantee may agree in writing.
Information identifying the Grantee's customers by name or their electric consumption
shall not be taken from the Grantee's premises. Such audit shall be impartial and all audit
findings, whether they decrease or increase payment to the Grantor, shall be reported to
the Grantee. The Grantor's right to examine the records of the Grantee in accordance
with this Section shall not be conducted by any third party employed by the Grantor whose
fee, in whole or part, for conducting such audit is contingent on findings of the audit.
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Grantor may, upon reasonable notice given within one (1) year following the
1 Grantee's acceptance of the New Franchise Agreement, conduct a final audit of the
Grantee's records relating to the calculation of the franchise payments that have been
made to Grantor pursuant to the Current Franchise Agreement embodied in Ordinance
No. 25 -81. Other than any claims arising from alleged fraud, deceit, misrepresentation,
intentional withholding of information, or other similar intentional misconduct by Grantee in
relation to the calculation or remittance of the franchise payments under the Current
Franchise Agreement, Grantor waives, settles, and bars all claims relating to the amounts
paid by the Grantee under the Current Franchise Agreement embodied in Ordinance
No 25 -81.
Section 13. Renewable Energy.
(a) Grantor and Grantee recognize that it is in the best interests of the City, its
residents, businesses and inhabitants thereof to reduce and control the growth rates of
electric consumption; to reduce the growth rates of weather - sensitive peak demand; to
increase the overall efficiency and cost - effectiveness of electricity production and use and
to encourage further development of demand -side renewable energy systems. To that
end Grantor and Grantee agree to use their best efforts to cooperatively work each with
the other to promote incentives for customer -owned and utility owned- energy efficiency
and demand -side renewable energy intended to offset all or part of a customer's electricity
requirements. Nothing contained in this franchise shall be construed as prohibiting or
impeding the residents, businesses, and inhabitants within the incorporated area of the
City from installing and using renewable energy systems provided the renewable energy
systems referred to are otherwise permitted by Florida law.
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(b) Grantor may, if permitted by law, (i) generate electric capacity and /or energy
at any facility owned by the Grantor for storage or utilization at that facility or other Grantor
facilities, operations or equipment; (ii) use renewable energy sources to generate electric
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capacity and /or energy for use in demonstration projects or at Grantor's facilities,
operations or its equipment; and (iii) sell electric capacity and /or energy to Grantee or
other wholesale purchaser in compliance with applicable rules and regulations controlling
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such transactions.
) Section 14. Undergrounding of Facilities. Grantee understands and
acknowledges that Grantor's policies strongly favor undergrounding of utilities and
improvement of safety and aesthetics. Grantee has filed a Tariff and has adopted a
Mechanism for Governmental Recovery of Undergrounding Fees (MGRUF), along with
other undergrounding tariffs. Requests made by Grantor for undergrounding shall by
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implemented by Grantee in accordance with the applicable tariffs in effect on the date of
Grantor's request.
Section 15. Smart Grid Technology. Grantee acknowledges that Grantor's
policies strongly favor the widespread dissemination of meters featuring "smart grid
technology" which utilize an interactive monitoring network capable of providing real time
electrical energy usage information to both Grantee and Grantee's retail customers via an
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advanced, two -way communication device. If this technology is implemented by Grantee,
Grantee shall utilize its best practicable efforts to provide retail customers located in the
incorporated area of Grantor receipt of such technology.
Section 16 Infrastructure Hardening. Grantee understands and acknowledges .
1 that Grantor's policies strongly favor strengthening electric utility infrastructure. Subject to
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FPSC or regulatory approval, Grantee shall implement its infrastructure hardening plan
within the Grantor's boundaries.
Section 17. Preferential or Discriminatory Practices Prohibited. All services
rendered and all rules and regulations adopted by the Grantee shall have general
application to all persons and shall not subject any person to prejudice or disadvantage on
account of race, gender, religion, origin, physical condition or ethnicity. No otherwise
qualified person shall, solely by reason of his or her race, gender, religion, origin, physical
condition or ethnicity, be excluded from participation in, be denied services, or be subject
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1 Section 18. No Joint Venture. Nothing herein shall be deemed to create a joint
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venture or principal -agent relationship between the parties, and neither party is authorized
to, nor shall either party act toward third persons or the public in any manner which would
indicate any such relationship with the other.
Section 19. Notices. All notices from the Grantee to the Grantor pursuant to this
ordinance shall be sent to: City Manager, City of Cape Canaveral, 105 Polk Avenue, or
such other address where City Hall may be located in the City of Cape Canaveral, Florida,
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1 32920. All notices from the Grantor to the Grantee pursuant to this ordinance shall be sent
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to Florida Power & Light Company, 700 Universe Boulevard, Juno Beach, Florida 33408,
or such other address where Grantee's corporate office may be located, marked:
Attention: External Affairs.
Section 20. Captions. Captions to sections throughout this ordinance are solely
to facilitate the reading and reference to the sections and provisions of the ordinance.
Such captions shall not affect the meaning or interpretation of the ordinance.
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Section 21. Headings; Entire Agreement; Governing Law. The headings
contained in this ordinance are for reference purposes only and shall not affect in any way
the meaning and interpretation of this ordinance. This ordinance constitutes the entire
agreement and supersedes all prior agreements and understandings, both written and
oral, among the parties with respect to the subject matter hereof. This ordinance shall be
governed in all respects, including validity, interpretation and effect, by the laws of the
State of Florida.
Section 22. Grantor's Rights of Intervention. Grantor and Grantee
acknowledge and agree that this franchise in no way affects or impairs any rights either
party may otherwise possess under Florida law to intervene in any suit or proceeding to
which the Grantor or the Grantee is a party, concerning or involving the Grantor's rights
under this ordinance and /or the Grantee's rights under this ordinance.
Section 23. Jurisdiction and Venue. The parties hereto agree that the state or
federal courts located in the State of Florida shall have the exclusive jurisdiction over the
parties and the subject matter of any litigation between the parties arising hereunder,
except insofar as the Florida Public Service Commission may have concurrent or
exclusive jurisdiction of matters addressed in this franchise. For the purpose of state court
action, venue shall lie within Brevard County, Florida, and for the purpose of federal court
action, venue shall lie within the Middle District of Florida in Orlando, Florida. THE
GRANTOR AND THE GRANTEE HEREBY WAIVE THE RIGHT TO TRIAL BY JURY IN
ANY ACTION BROUGHT ON THIS ORDINANCE OR ON ANY MATTER ARISING IN
CONNECTION WITH THIS ORDINANCE.
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Section 24. Qualified Severability. If any clause, section, provision or other
part of this ordinance or any portion thereof shall be held invalid or unconstitutional by a
court of competent jurisdiction, then said holding in no way affects the validity of the
remaining portions of this ordinance. Notwithstanding the foregoing, it is expressly
provided that if any of the provisions or Sections of this ordinance are held invalid or
unconstitutional, the parties shall attempt in good faith to negotiate a new lawful
agreement that restores the fundamental terms of the original agreement. In the event the
parties are unable to reach a new lawful agreement, the ordinance shall be null and void
and of no force and effect.
Section 25. Definition of "Person ". As used herein "person" means an
individual, a partnership, a corporation, a business trust, a joint stock company, a trust
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incorporated association, a joint venture, a governmental authority or any other entity of
whatever nature.
Section 26. Repeal of Prior Inconsistent Ordinance, Resolutions and
Agreements. Ordinance No. 25 -81, passed and adopted December 15, 1981, and all
other ordinances and parts of ordinances and all resolutions and parts of resolutions in
conflict herewith, are hereby repealed.
Section 27. Incorporation Into Code. This Ordinance shall be incorporated into
"Appendix A" of the Cape Canaveral City Code and any section or paragraph, number or
I letter, and any heading may be changed or modified as necessary to effectuate the
foregoing. Grammatical, typographical, and like errors may be corrected and additions,
alterations, and omissions, not affecting the construction or meaning of this ordinance and
the City Code may be freely made.
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Section 28. Effective Date. As a condition precedent to the taking effect of this
ordinance, the Grantee shall file its acceptance hereof with the Grantor's Clerk within 30
days of adoption of this ordinance. The effective date of this ordinance shall be the date
upon which the Grantee files such acceptance.
ADOPTED by the City Council of the City of Cape Canaveral, Florida, this 1 brh
day of August , 2011. C.---CAti■-^DCS24
Rocky Ra e Is, Mayor
ATT CA^�;, !i
-. e � ; FOR AGAINST
c- c. Bob Hoog Motion
• Angela 0.- ' Cl erk Jim Morgan
Second
g pp r .. , �. � „
Buzz Petsos x
ybx' „';: -� Rocky Randels x
Betty Walsh x
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Approved as to legal form and sufficiency for
the Ci - Cape Canaveral only:
`..•, e_
Anthony . Garganese, City Attorney
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a dd ACCEPTANCE OF ELECTRIC FRANCHISE
ORDINANCE NO. 05 -2011
BY FLORIDA POWER & LIGHT COMPANY
City of Cape Canaveral, Florida September 1, 2011
Florida Power & Light Company does hereby accept the electric franchise in the City of Cape
Canaveral, Florida, granted by Ordinance No 05 -2011, being:
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
CAPE CANAVERAL, BREVARD COUNTY, FLORIDA,
GRANTING TO FLORIDA POWER & LIGHT COMPANY, ITS
SUCCESSORS AND ASSIGNS, AN ELECTRIC FRANCHISE,
IMPOSING PROVISIONS AND CONDITIONS RELATING
THERETO, PROVIDING FOR MONTHLY PAYMENTS TO THE
CITY; PROVIDING FOR THE REPEAL OF PRIOR
INCONSISTENT ORDINANCES AND RESOLUTIONS,
PROVIDING FOR QUALIFIED SEVERABILITY, PROVIDING
FOR INCORPORATION INTO APPENDIX "A" OF THE CITY
CODE, AND PROVIDING FOR AN EFFECTIVE DATE.
which was passed and adopted on August 16, 2011.
This instrument is filed with the City Clerk of the City of Cape Canaveral Florida, in accordance
with the provisions of Section 28 of said Ordinance.
FLORIDA POWER & LIGHT COMPANY
By eK, &
Pamela M. Rauch, Vice President
STATE OF FLORIDA
COUNTY OF PALM BEACH
The foregoing instrument was acknowledged before me this of
2011 by Pamela M. Rauch of Florida Power & Light Company, a Florida corporation on behalf
of the corporation, who is personally known to me.
a% HEATHER P. MEUGONIS
Iv • MY COMMISSION x DD 937635 j / L 9
EXPIRES: December 6, 2013 , ' '
•; Bonded Thru Notary Public Undermters NOTARY PUBLIC Sig =tore
I HEREBY ACKNOWLEDGE receipt of the above Acceptance of Electric Franchise
Ordinance No. 05 -2011 by Florida Power & Light Company, and certify that I have filed the
same for record in the permanent files and records of the City of Cape Canaveral, Florida on
this 1 day of � np4ei. )oer , 2011.
(SEAL) City Clerk, City of . •e Canaveral, Florida
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S Leonard G. Sanderson, Jr.
Regional Director, External Affairs
Florida Power & Light Company
9001 Ellis Road
FPL: Melbourne, FL 32904
(321) 726 -4955
1 E -mail: sandy.sanderson@fpl.com
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September 1, 2011
Mayor Rocky Randels
City of Cape Canaveral
P.O. Box 326
Cape Canaveral, FL 32920 -0326
i Re: Florida Power & Light Company
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Dear Mayor Randels:
g Please accept this letter as acknowledgment and agreement by FPL to the following:
(1) FPL utilizes a system -wide work tracking process. Any excavation caused by
F PL or its contractors integral to a particular job would be tracked as a part of that process. FPL
will utilize this process in Cape Canaveral and will strive to restore all excavations in Cape
Canaveral in a timely manner. Additionally, FPL will comply with Florida Statute Section
768.10 requiring excavations to be enclosed or fenced.
(2) FPL will provide reasonable notice to the City of any contemplated transmission
and substation projects that FPL intends to install within the City of Cape Canaveral. Annually
FPL will provide a copy of its Ten Year Site Plan upon request by the City. The Ten Year Site
Plan, which is updated annually and filed with the Florida Public Service Commission, would
i include contemplated generation projects and transmission projects requiring Transmission Line
Siting Act certification to be located within the City of Cape Canaveral.
(3) FPL is a party to joint use agreements with other utilities. FPL agrees to employ
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I reasonable efforts to timely remove any FPL -owned pole located within the incorporated areas
of the City of Cape Canaveral and no longer in use by FPL (including shortened and
nonfunctioning poles), provided the pole does not have another utility's facilities attached to it
FPL also agrees to employ reasonable efforts to timely repair and when necessary in the
i judgment of FPL replace any FPL -owned pole located within the incorporated areas of the City
1 of Cape Canaveral that is leaning significantly in a non - perpendicular manner.
1 (4) Subject to FPL's electric tariff and Florida Public Service Commission rules,
FPL agrees to work cooperatively and collaboratively with the City with respect to (a) potential
underground conversions of electric distribution facilities, and (b) upon request of the City, the
provision of information of any hardening efforts of FPL's existing overhead facilities within
the incorporated areas of the City.
}
(5) In accordance with applicable laws, rules and regulations, FPL agrees to work
cooperatively and collaboratively with the City to identify opportunities for programs for the
promotion of energy conservation and renewable energy. FPL recognizes and acknowledges
that the City of Cape Canaveral continues to explore and desires to increase its use of green
energy projects, conservation, sustainability, and renewable measures to address the energy
needs of the City and its citizens. FPL and the City will strive to work as partners in pursuing
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1 projects premised upon the use of green energy, conservation, sustainability and the use of
renewable energy.
(6) FPL agrees to use reasonable efforts to coordinate FPL activities with any City
sidewalk projects and in accordance with applicable laws and regulations. FPL will use
reasonable efforts to avoid constructing new poles within sidewalk areas, bicycle paths, or in
any other place where such poles might interfere with pedestrian or bicycle traffic.
(7) FPL will use reasonable efforts to avoid the placement of electric facilities in
public places other than public rights -of -way where practical and feasible alternatives exist.
FPL recognizes the sensitivity of the City of Cape Canaveral to electric facilities being installed
1 in public places other than public rights -of -way. Additionally, FPL will use reasonable efforts to
accommodate the City of Cape Canaveral's concerns related to electric facility installation,
I operation and maintenance in public places other than public rights -of -way. Upon request by
the City of Cape Canaveral, FPL will meet with the City to address specific concerns of the
City. FPL agrees that it will not install electric facilities over or under any community center,
police station, fire station, any existing or future city hall complex, or structures located within
any city park. Additionally, FPL will use reasonable efforts to avoid installing electric facilities
upon city -owned waterfront property and city -owned cemeteries (if any).
ti (8) FPL will not assert in any dispute with the City of Cape Canaveral, or in any
1 legal or regulatory proceeding to which the City of Cape Canaveral and FPL are parties, that the
terms of the franchise, with respect to substation siting and construction, prevail over state
statutes or state regulations pertaining to substation siting and construction, including
3 specifically Florida Statute Section 163.3208.
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1 FPL has enjoyed an ongoing cooperative relationship with the City of Cape Canaveral
1 and we look forward to a continuing cooperative effort in the future.
Sincerely, Accepted by
i "t Vag..., ,NA
L eonard G. Sanderson, Jr. / ivv p
e
cc: Anthony A. Garganese, Esq.
Kenneth M. Rubin, Esq.
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