O-317-M• •
CITY OF CLERMONT
MISCELLANEOUS ORDINANCE
NO. 317-M
AN ORDINANCE OF THE CODE OF ORDINANCES OF THE
CITY OF CLERMONT, LAKE COUNTY, FLORIDA, GRANTING
TO FLORIDA POWER CORPORATION, ANON-EXCLUSIVE
ELECTRIC UTILITY FRANCHISE TO OCCUPY MUNICIPAL
STREETS AND RIGHTS-OF-WAY IN THE CITY OF
CLERMONT, FLORIDA, FOR THE PURPOSE OF PROVIDING
ELECTRIC AND POWER SERVICES; PRESCRIBING THE
TERMS AND CONDITIONS ACCOMPANYING THE GRANT OF
FRANCHISE; PROVIDING FOR SEVERABILITY OF
PROVISIONS; PROVIDING FOR PUBLICATION, AND
PROVIDING AN EFFECTIVE DATE.
THE CITY COUNCIL OF THE CITY OF CLERMONT, LAKE COUNTY,
FLORIDA, HEREBY ORDAINS AS FOLLOWS:
SECTION 1. DEFINITIONS: For the purposes of this Ordinance, the following
terms, phrases, words, and their derivations 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 directory.
A. Grantor shall mean City of Clermont, Lake County, Florida.
B. Grantee shall mean Florida Power Corporation.
C. Electric Utility System shall mean 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 thereto as shall hereafter be
made.
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CITY OF CLERMONT
MISCELLANEOUS ORDINANCE
NO. 317-M
Page 2
D. Franchise Area shall mean that area for which Grantee provides electric utility
service which is within the corporate city limits of the Grantor.
E. Base Revenues shall mean revenues from the sale of electricity, net of customer
credits, to residential, commercial, and industrial customers and City sponsored
street lighting all within the corporate limits of the City.
F. Per on means any person, firm, partnership, association, corporation, company,
or organization of any kind.
G. Rights-of--Way shall mean all of the public streets, alleys, highways, waterways,
bridges, easements, sidewalks and parks of 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 temtory as may hereafter be added to, consolidated or annexed
to the City.
H. Retail Wheeling shall mean acustomer/supplier arrangement whereby an electric
energy provider utilizes transmission and/or distribution facilities of Grantee to
make energy sales directly to an end use customer located within the franchise
area.
I. Adversely Affected shall mean for the Grantee, a loss of one percent (1 %) of
Base Revenues within the corporate city limits due to Retail Wheeling. For the
Grantor, a loss of one percent (1 %) of franchise fees due to Retail Wheeling.
SECTION 2. FINDINGS:
A. The Grantor deems it necessary, desirable, and in the interest of its citizens to
establish by ordinance a franchise granting to Grantee the permission to occupy
rights-of--way in the City of Clermont, Florida, for the purpose of providing
electric services.
B. The Grantee is willing to undertake the installation and operation of its electric
utility facilities under a franchise from Grantor.
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CITY OF CLERMONT
MISCELLANEOUS ORDINANCE
NO. 317-M
Page 3
SECTION 3. SHORT TITLE:
This Ordinance shall be known and may be cited as the "Florida Power Corporation
Franchise. "
SECTION 4. GRANT OF AUTHORITY:
A. There is hereby granted by Grantor, to Grantee, the right and privilege to
construct, erect, operate, own and maintain, in, upon, along, across, above, over
and under Rights-of--Way now laid out or dedicated, and all extensions thereof,
and additions thereto in the corporate city limits, poles, wires, cables,
underground conduits, manholes, fiber optic cable for its own use and other
fixtures necessary or proper for the maintenance and operation of its Electric
Utility System, provided that all portions of the same shall conform to the
National Electrical Safety Code. This Franchise is awarded subject to the
provisions of general or special laws of Florida now existing or hereinafter
enacted. This grant of authority is limited to the provision by Grantee of electric
utility services. Grantee agrees that without the prior written permission of
Grantor, it will not allow any entity providing a wireless communication system
to acquire rights to occupy Rights-of--Way under this Franchise. In the event
Grantee desires to use its existing facilities, or construct new facilities, in order to
provide public communications, leased fiber optic capacity, or video services to
existing or potential consumers, Grantee must obtain additional and separate
permission from Grantor for such activities.
B. Annexation or Contraction. Grantee agrees that the Franchise Area is subject to
expansion or reduction by annexation and contraction of municipal boundaries. If
Grantor approves any Franchise Area expansion or reduction by annexation or
contraction, Grantor will provide written notice to Grantee. Grantee must revise
its payments due to any expansion or reduction by annexation within a reasonable
time after notice to Grantee, but no later than sixty (60) days after receipt of
notice.
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CITY OF CLERMONT
MISCELLANEOUS ORDINANCE
NO. 317-M
Page 4
C. Non-Exclusive Use. The right to use and occupy Rights-of--Way for the purposes
herein set forth shall be non-exclusive, and the Grantor reserves the right to grant
a similar use of said Rights-of--Way, to any person at any time during the period
of this Franchise so long as such grant does not materially and adversely impact
Grantee's right to use and occupy Rights-of--Way as aforesaid.
D. Non-Compete. As a further consideration of this franchise, the Grantor agrees
not to engage in the business of generating, transmitting or distributing and selling
electricity during the term of this franchise or any extension thereof in
competition with the Grantee.
SECTION 5. TERM OF FRANCHISE:
A. Except as otherwise provided herein, the Franchise and rights herein granted shall
take effect and be in force from and after the final passage hereof, as required by
law and upon the filing of an acceptance by Grantee of all the terms thereof with
the Grantor and shall continue in force and effect for a term of thirty (30) years
after the effective date of this Franchise ordinance.
B. However, if in the event the appropriate governmental authorities authorize Retail
Wheeling, then, either party, if Adversely Affected thereby, may reopen this
ordinance upon thirty (30) days written notice to the other for the sole purpose of
addressing franchise fee payments between Grantee and Grantor. If the parties
are unable to agree within ninety (90) days of reopening, either party may declare
an impasse and may file an action in the Circuit Court in Lake County, Florida
for declaratory relief as to the proper franchise fee in light of Retail Wheeling.
C. Each party shall bear its own costs in such a proceeding. During the pendency of
any negotiations pursuant to the reopener or any declaratory action arising there-
from the current franchise payment as set forth in Section 6 shall continue to
apply. Provided, however, if as a result of such negotiations or any declaratory
action arising therefrom, a different franchise payment is determined, that new
franchise payment shall apply retroactively to the first full month following the
CITY OF CLERMONT
MISCELLANEOUS ORDINANCE
NO. 317-M
Page 5
date this ordinance is reopened and the parties shall balance their accounts
accordingly.
D. In all events, Grantor shall not grant more favorable treatment to providers of
Retail Wheeling than is granted to Grantee under this ordinance, it being the
intent of the parties that no future provider of electric service, be it generation,
transmission or distribution service, to customers within the corporate limits of
Grantor shall be given a competitive advantage over Grantee.
SECTION 6. PAYMENT TO GRANTOR:
A. Effective the first day of the second month beginning after the effective date of
this ordinance, Grantor shall be entitled to receive from Grantee a monthly
franchise amount which will equal six percent (6 %) of Grantee's Base Revenues
for the preceding month which amount shall be the total compensation due
Grantor for the rights, authority and privileges granted by this Franchise.
B. Payment shall be made to the Grantor for each month no later than the twentieth
(20th) day of the following month. The monthly payment may be made by wire
transfer. Any monthly payment or any portion thereof received twenty (20) days
after the due date shall be subject to interest at the rate of ten percent (10%) per
annum until all payments are paid in full.
SECTION 7. FAVORED NATIONS:
A. In the event Grantee shall hereafter accept an electric utility franchise ordinance
from any municipality providing for the payment of a franchise fee in excess of
the amount provided for per Section 6 above, the Grantee shall immediately notify
the Grantor and the Grantor reserves the right to amend this Franchise to require
the Grantee to pay the Grantor such additional franchise fees. The Grantee's
failure to notify Grantor of such additional payments does not limit Grantor's
rights to such additional franchise fees nor limit Grantee's liability with respect
thereto including late payments outlined in Section 6 (B).
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CITY OF CLERMONT
MISCELLANEOUS ORDINANCE
NO. 317-M
Page 6
B. In no event shall Grantor receive a franchise fee that is less, in terms of
percentage and/or Base Revenues, than any other governmental entity within
Grantee's service area, except that, in the event Grantor shall hereafter grant a
utility franchise to any other energy supplier providing for the payment of a
franchise fee less than the amount provided for in Section 6 above, then Grantor
shall be obligated to accept an amendment of this ordinance providing for a
decrease in the franchise fee to such lesser amount.
SECTION 8. RATES AND SERVICES PROVIDED:
The rates to be charged and services provided by the Grantee for electric service
within the corporate limits of Grantor during the term of this franchise shall be as
provided in the Grantee's tariffs now or hereafter approved by the Florida Public
Service Commission, or such agency of the State of Florida or other entity as may
have proper jurisdiction over such rates and charges of Grantee.
SECTION 9. CHARACTER OF SERVICE:
Grantee agrees that the materials to be used in the construction, operation and
maintenance of the electric distribution system and the service to be rendered thereby
shall be in every respect equal to those provided to Grantee's other franchised
communities. Grantee shall maintain a business office or locations within the City
which shall be open during normal business hours for the purpose of accepting
payments of electric bills and receiving customer inquiries.
SECTION 10. INDEMNIFICATION:
A. 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 facil-
ities thereunder, and the acceptance of this franchise by Grantee shall be deemed
an agreement on the part of the Grantee to indemnify Grantor and hold it harm-
less against any and all liability, loss, cost, damage or expense which Grantor
may incur by reason of the neglect, default, or misconduct of Grantee in the
construction, operation, or maintenance of its electric utility facilities thereunder.
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CITY OF CLERMONT
MISCELLANEOUS ORDINANCE
NO. 317-M
Page 7
B. Grantee shall maintain through out the term of this Franchise sufficient financial
resources to provide self insurance insuring the Grantor and Grantee with regard
to all damages set forth in Section 10 (A) in the minimum amounts of:
1) $1,000,000 for bodily injury or death to a person;
$3,000,000 for bodily injury or death resulting from any one accident.
2) $50,000 for property damage resulting from any one accident.
3) $1,000,000 for all other types of liability.
C. It is acknowledged by the Grantor that Grantee provides its own liability
insurance (self-insured). Grantee must submit on an annual basis, when
submitting its annual audited financial report, documentation that clearly
demonstrates that it has accumulated sufficient financial resources in order to
provide insurance coverage as indicated in Section 10(B) above.
SECTION 11. APPROVAL OF TRANSFER:
A. The rights and privileges granted by this Franchise shall not be sold or assigned
in whole or in part without the Grantor's prior written approval; however, such
consent shall not be unreasonably withheld. No such sale or assignment shall be
effective until the vendee or assignee has filed with the Grantor an instrument,
duly executed, reciting the facts of such sale, or assignment and agreeing to
perform all the conditions thereof.
B. Grantee shall annually submit to Grantor, Attention: Finance Department, a copy
of its Audited Annual Financial Report upon its normal issuance of same. By
acceptance of this Franchise, the Grantee specifically agrees that in the event of
any violation of this Section, after thirty (30) days written notice and an
opportunity for Grantee to cure, Grantor may cause the Franchise granted herein
to be terminated.
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CITY OF CLERMONT
MISCELLANEOUS ORDINANCE
NO. 317-M
Page 8
SECTION 12. GRANTOR RIGHTS IN FRANCHISE:
The right is hereby reserved to the Grantor to adopt, in addition to the provisions
herein contained and existing applicable ordinances, such additional 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 Grantee or materially interfere with the
benefits conferred on Grantee hereunder.
SECTION 13. WORK IN THE RIGHT-OF-WAY:
The Grantee is hereby granted the right, authority and privilege to make all necessary
excavations in said square, streets, avenue, alleys, thoroughfares, public grounds and
other parts of Grantor. The Grantee 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 Grantee'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 along said lines that may in any way
endanger the proper operation of same. Moreover, the Grantee shall have the right to
construct, erect, operate and maintain in said City an electric system consisting of
central plant or plants with all the engines, boilers, dynamos, machines and devices,
and appliances that may be required for generating electricity, together with necessary
substations, lines and related facilities and for carrying Grantee's business; provided
that, in accomplishing these purposes, the streets of said City shall not be
unreasonably obstructed and work in connection therewith shall be designed, done,
and carried on in conformity with such reasonable rules, regulations and local
ordinances as may be adopted by Grantor for the protection of the public. All
disturbed properties shall be restored to their previous condition.
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CITY OF CLERMONT
MISCELLANEOUS ORDINANCE
NO. 317-M
Page 9
SECTION 14. RECORDS AND REPORTS:
The following records and reports shall be filed with or available to Grantor:
A. Grantee Rules and Regulations. Copies of rules, regulations, terms and
conditions adopted by Grantee that relate to Grantee's use of Grantor's Right-of-
Way shall be available upon request by Grantor.
B. Accounting. Grantee shall use the system of accounts and the form of books,
accounts, records, and memoranda prescribed by the Florida Public Service
Commission, or as mutually agreed to by the Grantor and Grantee. Should the
Florida Public Service Commission cease to exist, the City retains the right to
require the Grantee to maintain a system of accounts and forms of books and
accounts and memoranda prescribed by the Federal Energy Regulatory
Commission or any other applicable agency.
C. Re o s. The Grantee will attach to each payment a statement of its Base
Revenues by revenue account for the period on which such payment is based,
signed by an authorized representative of the Grantee, in such reasonable form
and detail as Grantor may from time to time prescribe, sufficient to show the
source and method of computation of Base Revenues. The acceptance of any
statement or payment shall not estop the Grantor 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 Section 6 (B).
D. AvailabilitX or Records and Reports. Grantee shall supply all accounts and
records of the Grantee and/or all such information that the Grantor or its
representatives may from time to time reasonably request or require relative to the
calculation of franchise fees. Such financial records shall be kept and maintained
in accordance with generally accepted accounting principles. All of these records
shall, on written request of Grantor, be open for examination and audit by
Grantor and Grantor's representatives during ordinary business hours, and such
records shall be retained by Grantee for a period of five (5) years.
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CITY OF CLERMONT
MISCELLANEOUS ORDINANCE
NO. 317-M
Page 10
E. A i . Grantor may require an audit of Grantee's books. Grantee will reimburse
Grantor's audit costs if the audit identifies errors in the Grantee's franchise base
Revenues of five percent (5 %) or more for the period audited. Errors identified
during the audit process shall be projected for any additional time periods not
covered during the audit if there is a reasonable probability these errors occurred
during the unaudited period, but not for more than five (5) years. If an
underpayment of franchise fees has occurred, interest will be computed at a rate
of ten percent (10%) per annum. Both the underpayment and interest shall be
paid within thirty (30) days after receipt of demand therefor from Grantor.
SECTION 15. GRANTOR'S AUTHORITY:
A. Nothing in this Franchise shall prevent Grantor from levying and collecting such
taxes as Grantor may from time to time be empowered, by law, to levy and
collect provided such taxes shall be applied uniformly to all persons within
Grantor's corporate limits and shall not constitute an additional tax or fee for
Grantee's use of the Rights-of--Way. Such taxes are not considered part of the
franchise fees.
B. In the event the Grantor acquires the property rights of Grantee as well as any
extensions thereof within and without the City, used in or useful in or connected
with Grantee's Electric Utility System and the extensions thereof, all grants or
renewals shall at once terminate.
SECTION 16. ACCEPTANCE:
This ordinance shall become effective upon being legally passed and adopted by the
City Council of the City of Clermont, as provided by law; and it is further agreed that
Grantee shall accept this franchise as of the date of the passage and adoption by the
City Commission and shall signify its acceptance in writing within thirty days after the
City Council's approval of this ordinance by filing its written acceptance with the City
Clerk.
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CITY OF CLERMONT
MISCELLANEOUS ORDINANCE
NO. 317-M
Page 11
SECTION 17. ATTORNEY'S FEES AND EXPENSES:
Except as otherwise provided for herein, Grantor and Grantee hereto agree that if
litigation becomes necessary to enforce any of the obligations, terms and conditions of
this Franchise, the prevailing party shall be entitled to recover a reasonable amount of
attorney's fees and court costs, including fees and costs on appeal, from the non-
prevailing party.
SECTION 18. GOVERNING LAW AND VENUE:
A. The. rights and privileges granted to Grantee by this Franchise shall at all times be
subordinate and inferior to the rights of the public in and to the ordinary use of
Grantor's Rights-of--Way and nothing in this Franchise shall be considered as a
surrender by Grantor of its right and power to use and relocate the use of its
Rights-of--Way.
B. The Franchise and rights herein granted are subject to the provisions of existing
Federal laws and the laws of the State of Florida and those hereafter enacted
pertaining to the granting of franchises and to Retail Wheeling.
C. Venue. In the event that any legal proceeding is brought to enforce the terms of
this Franchise, the same shall be brought in Lake County, Florida, or, if a federal
claim, in the U.S. District Court in and for the Middle District of Florida,
Orlando Division.
SECTION 19. NOTICES:
Except in exigent circumstances, all notices by either Grantor or Grantee to the other
shall be made by either depositing such notice in the United States Mail, Certified
Mail return receipt shall be deemed delivered five (5) 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 Grantor
and Grantee observed holidays excepted. All notices shall be addressed as follows:
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CITY OF CLERMONT
MISCELLANEOUS ORDINANCE
NO. 317-M
Page 12
To Grantor: City Manager To Grantee: General Counsel
City of Clermont Florida Power Corp.
P.O. Box 120219 P.O. Box 14042
Clermont, FL 34712-0219 St. Petersburg, FL 33733
SECTION 20. NON-WAIVER PROVISION:
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.
SECTION 21. SEVERABILITY:
Should any section or provision of this Franchise Ordinance or any portion thereof,
the deletion of which would not adversely affect (in the general sense) 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 Grantor and
Grantee shall meet and negotiate in good faith to obtain a replacement provision that is
in compliance with the judicial authority's decision.
SECTION 22. PUBLICATION AND EFFECTIVE DATE
This ordinance shall be published as provided by law and it shall become law and take
effect July 23, 1996.
First Reading this 9th day of July, 1996.
Second Reading this 23rd day of July, 1996.
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CITY OF CLERMONT
MISCELLANEOUS ORDINANCE
NO. 317-M
Page 13
PASSED AND ORDAINED BY THE CITY COUNCIL OF THE CITY OF
CLERMONT, LAKE COUNTY FLORIDA THIS 23rd DAY OF JULY, 1996.
Robert A. Pool, Mayor
Attest:
/~
seph E. Va ' e, City Clerk
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STATE OF FLORIDA
COUNTY OF LAKE
I, Joseph E. Van Zile, City Clerk of the City Council of the City of Clermont,
Florida, do hereby certify that the attached and foregoing is a true and correct copy of
Ordinance No. 317-M of the City of Clermont, Florida as the same was legally passed
and adopted on the 23rd day of July, 1996 with all procedures for the adoption having
been followed and as the same appears on record in my office.
IN WITNESS WI~REOF, I hereunto set my hand and official seal this (~,,~~
day of July, 1996.
CITY OF CLERMONT, FLORIDA
r ,,/~
,;- Joseph E. Van Zile, City Clerk
..,
The above and foregoing Ordinance No. 317-M has been duly examined and
the same is hereby approved.
Dated at Clermont, Florida, this a(o~-day of July, A.D., 1996.
By:
Robert A. Pool, Mayor
City of Clermont, Florida
The above and foregoing Ordinance No. 317-M has been duly examined by me
and the same is hereby approved as to form and legality.
Dated at Clermont, Florida, this Q(v-~C day of July, 1996.
By: ~~-~-~
Leonard Baird, Jr., Attorney
City of Clermont, Florida