Fort Walton Beach Ordinance — 2023--Gulf Power Franchise--2020 — reading text

READING i; ..,.. , lst 2nd O ORDINANCE 2023 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF FORT WALTON BEACH, FLORIDA, GRANTING TO GULF POWER COMPANY, ITS SUCCESSORS AND AS5IGNS, AN ELECTRIC FRANCHISE, IMPOSING PROVISIONS AND CONDITIONS RELATING THERETO; PROVIDING FOR MONTHLY PAYMENTS TO THE CITY OF FORT WALTON BEACH; AND PROVIDING AN EFFECTIVE DATE NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FORT WALTON BEACH, FLORIDA AS FOLLOWS: WHEREAS, the City Council of the City of Fort Walton Beach, Florida recognizes that the City of Fort Walton Beach and its citizens need and desire the continued benefits of electric service; and WHEREAS, the provision of such service requires substantial investments of capital and other resources in order to construct, mainta.in and operate facilities essential to the provision of such service in addition to costly administrative functions, and the City of Fort Walton Beach does not desire to undertake to provide such services; and WHEREAS, Gulf Power Company ( Gulf Power) is a public utility which has the demonstrated ability to supply such services; and WHEREAS, Gulf Power and the City of Fort Walton Beach are parties to an existing franchise agreement, the terms of which are set forth in City of Fort Walton Beach Ordinance No. 1324 passed and adopted February 25, 1997 and Gulf Power' s written acceptance thereof dated March 26, 1997 granting to Gulf Power, its successors and assigns, an electric franchise Current Franchise Agreement"); and WHEREAS, Gulf Power and the City of Fort Walton Beach desire to enter into a new agreement ( New Franchise Agreement) providing for the payment of fees to the City of Fort Walton Beach in exchange for the nonexclusive right and privilege of supplying electricity and other services within the City of Fort Walton Beach free of competition from the City of Fort Walton Beach, pursuant to certain terms and conditions, and WHEREAS, the City Council of the City of Fort Walton Beach deems it to be in the best interest of the City of Fort Walton Beach and its citizens to enter into the New Franchise Agreement; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FORT WALTON BEACH, FLORIDA: Section 1. There is hereby granted to Gulf Power Company, its successors and assigns hereinafter called the " Grantee"), for the period of 30 years from the effective date hereof, the nonexclusive right, privilege and franchise ( hereinafter called " franchise") to construct, operate and maintain in, under, upon, along, over and across the present and future roads, streets, alleys, bridges, easements, rights-of-way and other public places ( hereinafter called " public rights-of- way") throughout all of the incorporated areas, as such incorporated areas may be constituted from time to time, of the City of Fort Walton Beach, Florida, and its successors ( hereinafter called the " Grantor"), 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 a11 of the Grantee' s operations ( hereinafter called " facilities"), for the purpose of supplying electricity and other services to the Grantor and its successors, the inhabitants thereof, and persons beyond the limits thereof. Section 2. The facilities of the Grantee shall be installed, located or relocated so as to not unreasonably interfere with traffic over the public rights-of-way or with reasonable egress from and ingress to abutting property. To avoid conflicts with traffic, the location or relocation of all facilities shall be made as representatives of the Grantor may prescribe in accordance with the Grantor's reasonable rules and regulations with reference to the placing and maintaining in, under, upon, along, over and across said public rights-of-way; provided, however, that such rules or regulations ( a) shall not prohibit the exercise of the Grantee's right to use said public rights-of- way for reasons other than unreasonable interference with motor vehicular traffic, ( b) shall not unreasonably interfere with the Grantee' s ability to furnish reasonably sufficient, adequate and efficient electric service to all of its customers, and ( c) shall not require the relocation of any of the Grantee's facilities insta.11ed before or after the effective date hereof in public rights-of-way unless or until widening or otherwise changing the configuration of the paved portion of any public right-of-way used by motor vehicles causes such installed facilities to unreasonably interfere with motor vehicular traffic. Such rules and regulations shall recognize that above- grade facilities of the Grantee installed after the effective date hereof should be installed near the outer boundaries of the public rights- of-way to the extent possible. When any portion of a public right-of-way is excavated by the Grantee in the location or relocation of any of its facilities, the portion of the public right-of-way so excavated shall within a reasonable time be replaced by the Grantee at its expense and in as good condition as it was at the time of such excavation. The Grantor shall not be liable to the Grantee for any cost or expense in connection with any relocation of the Grantee' s facilities required under subsection ( c) of this Section, except, however, the Grantee shall be entitled to reimbursement of its costs from others and as may be provided by law. Section 3. 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 the Grantee of its facilities hereunder, and the acceptance of this ordinance shall be deemed an agreement on the part of the Grantee to indemnify the Grantor and hold it harmless against any and all liability, loss, cost, damage or expense which may accrue to the Grantor by reason of the negligence, default or misconduct of the Grantee in the construction, operation or maintenance of its facilities hereunder. Section 4. All rates and rules and regulations established by the Grantee from time to time shall be subject to such regulation as may be provided by law. Section 5. Franchise Fees a) As a consideration for this franchise, the Grantee shall pay to the Grantor, commencing 60 days after the effective date hereof, and each 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 ta ces 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 30 days prior to each such payment will equal 6% percent of the Grantee' s billed revenues, less actual write-offs, exclusively from the sale of electrical energy to customers served under Grantee' s residential, commercial and industrial rate schedules ( as such customers and rate schedules are defined by Gulf Power' s Tariff for Retail Electric Service) 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 payrnent for the rights and privileges granted herein exceed 6% percent of such revenues for any monthly billing period of the Grantee. The Grantor understands and agrees that such revenues as described in this paragraph aze limited to the precise revenues described therein. b) If during the term of this franchise, Grantee enters into a franchise agreement with any other local government agency located within its service territory, each such municipality or county referred to herein as an " Other Governmental Entity", the terms of which provide for the payment of franchise fees by Grantee at a rate greater than six ( 6. 0%) percent of Grantee' s residential, commercial and industrial revenues ( as such customers are defined by Grantee' s tarif, under the same terms and conditions as specified in Section 5( a) hereof, Grantee upon written request of the Grantor, sha11 negotiate and enter into a new franchise agreement with the Grantor in which the percentage to be used in calculating monthly payments under Section 5( a) hereof sha11 be no greater than that percentage which Grantee has agreed to use as a basis for the calculation of payrnents to any such Other Governmental Entity, provided, however, that if the franchise with such Other Governmental Entity contains additional benefits given to Grantee in exchange for the increased franchise rate, which such additional benefits are not contained in this franchise, such new franchise agreement shall include those additional or reasonably equivalent benefits to Grantee. Section 6. 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 herein called a " retail customer") or to any electrical service ( 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 utilities or persons in wholesale transactions which are subject to the provisions of the Federal Power Act. Nothing herein sha11 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 and/ or electric energy purchased by the Grantor from any other person; provided, however, that before the Grantor elects to purchase electric capacity andlor electric 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 the other person and identify the Grantor's facilities to be served under the offer. The Grantee sha11 thereafter have 90 days to evaluate the offer and, if the Crrantee offers rates, terms and conditions which are equal to or better than those offered by the other person,