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

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 Crrantor 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, all of the terms and conditions of this franchise shall remain in effect. Section 7. 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 or compete on terms and conditions which the Grantee determines are materially more favorable 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 90 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 and the objective basis or bases of same. The Grantor shall then have 90 days in which to correct or otherwise remedy the material competitive disadvantage complained of by the Grantee. If the Grantee determines that such terms or conditions are not remedied by the Grantor within 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. Nothing contained herein shall be construed as constraining the Grantor' s right to challenge at any time Grantee' s determination of material competitive disadvantage leading to termination hereunder. Section 8. 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 Grantor in which the Grantee may lawfully serve, and the Grantee determines that its obligations hereunder, or otherwise resulting from this franchise in respect to rates and service, place it at a material 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 disadvanta.ge is not remedied within the time period provided hereafter. T'he Grantee shall give the Grantor at least 120 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 the consequences of such action which resulted in the competitive disadvantage and the objective basis or bases of the material competitive disadvantage. The Grantor shall then have 120 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 agreement by delivering written notice to the Grantor's Clerk and termination shall take effect on the date of delivery of such notice. Nothing contained herein shall be construed as constraining the Grantor' s right to challenge at any time Grantee' s determination of material competitive disadvantage leading to termination hereunder. Section 9. Failure on the part of the Grantee to comply in any substantial respect with any of the provisions of this franchise shall be grounds far forfeiture, but no such forfeiture shall take effect if the reasonableness or propriety thereof is protested by the Grantee until there is final determination ( after the expiration or exhaustion of all rights of appeal) by a court of competent jurisdiction that the Grantee has failed to comply in a substantial 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. Section 10. Failure on the part of the Grantor to comply in substantial respect with any including but not limited to: ( a) denying the Grantee use of of the provisions of this ordinance, 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. The Grantor recognizes and agrees that nothing in this franchise agreement constitutes or shall be deemed to constitute a waiver of the Grantee' s delegated sovereign right of condemnation and that the Grantee, in its sole discretion, may exercise such right. Section 11. The Grantor may, upon reasonable notice and within 90 days after each anniversary date of this franchise, at the Grantor' s expense, examine the records of the Grantee relating directly 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 accardance 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. Grantor waives, settles and bars all claims relating in any way to the amounts paid by the Grantee under the Current Franchise Agreement embodied in Ordinance No. 1324. Section 12. The provisions of this ordinance are interdependent upon one another, and if any of the provisions of this ordinance are found or adjudged to be invalid, illegal, void or of no effect, the entire ordinance shall be null and void and of no force or effect. Section 13. As used herein " person" means an individual, a partnership, a corporation, a business trust, a joint stock company, a trust, an incorporated association, a joint venture, a governmental authority or any other entity of whatever nature. Section 14. Ordinance No. 1324, passed and adopted February 25, 1997 and all other ordinances and parts of ordinances and all resolutions and parts of resolutions in conflict herewith, are hereby repealed. Section 15. 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: ' y Q yc f / 0, o o ichard A. Rynearson, yor w' F p S Attest: Approved for form, leg ciency s Ki . Barnes, City Clerk, aywar y es, Jr., Ci Fl0/t A  ACCEPTANCE OF ELECTRIC FRANCHISE ORDINANCE NO. 2023 BY GULF POWER COMPANY City of Fort Walton Beach, Florida April 1, 2020 Gulf Power Company does hereby accept the electric franchise in the City of Fort Walton Beach, Florida, granted by Ordinance No. 2023, being: ORDINANCE 2023 AN ORDINANCE GRANTING TO GULF POWER COMPANY, ITS SUCCESSORS AND ASSIGNS, AN ELECTRIC FRANCHISE, IMPOSING PROVISIONS AND CONDITIONS RELATING THERETO, PROVIDING FOR MONTHLY PAYMENTS TO THE CITY OF FORT WALTON BEACH, AND PROVIDING FOR AN EFFECTIVE DATE. which was passed and adopted on March 10, 2020. This instrument is filed with the City Clerk of the City of Fort Walton Beach, Flo ' , in accordance with the provisions of Section 15 of said Ordinance. GULF POWE P By Michael Spoor, Vi President STATE OF FLORIDA COUNTY OF ESCAMBIA The foregoing instrument was ack Qw,ledged before me by means of" physical presence or online notarization, this- t'"'—day of`" 1L C, I L , 2020 by Michael Spoor of Gulf Power Company, a Florida corporation, on behalf of the corporation. He/ she is personally _ known to me or has produce as identification. A;!" 4,, MEUSSA A ARNES Commbelon k 30 308942 y 1 ExplreeDecemborll, o28 NOTAR PUBLIC Signature ur' WriA d1hruBud tNN ryNrrloM I HEREBY ACKNOWLEDGE receipt of the above Acceptance of Electric Franchise Ordinance No. 2023 by Gulf Power Company, and certify that I have filed the same for record in the permanent files and records of the City of Fort Walton Beach, Florida on this / s day of 4,; 1 2020. w, s m SEAL) ity Clerk, ity