Ordinance 01-1559
Ii .U
ORDINANCE NO. 01-1559
AN ORDINANCE OF THE CITY OF LONGWOOD SETTING FORTH
CONDITIONS FOR GRANTING A FRANCHISE TO BUILD, OWN AND
OPERATE ELECTRIC DISTRIBUTION LINES AND ASSOCIATED
FACILITIES WITHIN THE CITY OF LONGWOOD; OUTLINING THE
TERMS AND CONDITIONS UNDER WIHICH SUCH ANY NEW ELECTRIC
DISTRIBUTION FRANCHISE SH~4LL OPERATE; OUTLINING
FRANCHISEE'S DUTIES; OUTLININGCERTAIN SYSTEM STANDARDS;
PROVIDING FOR FRANCHISE FEE.i; PROVIDING FOR SECURITY,.
INSURANCE, AND INDEMNIFICATION; PROVIDING FOR TERMINATION
CRITERIA; PROVIDING FOR PURCHASE OPTION REQUIREMENT;
PROVIDING FOR MAINTENANCE; PRROVIDING FOR ASSIGNMENTS;
PROVIDING FOR THE TERMS UNDER V1IHICH ANY "HOLD OVER"
FRANCHISEE WILL OPERATE PENDIP~G THE NEGOTIATION OF A NEW
FRANCHISE; PROVIDING FOR THE PURCHASE OF FRANCHISEE'S
CAPITAL IMPROVEMENTS UPON 1~ERMINATION OF FRANCHISE;
PROVIDING FOR OBLIGATIONS C?F HOLDOVER FRANCHISEES;
PROVIDING FOR SEVERABILITY; PROVIDING FOR ENFORCEMENT;
PROVIDING AN EFFECTIVE DATE.
BE IT ENACTED BY THE COMMISSION OF THE CITY OF LONGWOOD:
SECTION 1. SHORT TITLE. This Ordinance shall be known as the "Electric
Distribution Franchise Ordinance".
SECTION 2. CITY COMMISSION FINDINGS AND LEGISLATIVE INTENT. The
City Commission of the City of Longwood hereby makes the following findings and
declares its legislative intent as follows:
(1) There is an immediate anti continuing need for safe and reliable
electric service for individuals, organizations, firms, and entities located within in the City
of Longwood (the "City").
(2) Section 166.021(1), Florida Statutes, provides municipalities broad
authority, including the governmental, corporate and proprietary powers to enable them
to conduct municipal government, perform municipal functions, and render municipal
services. Pursuant to this broad home rule authority, the City may, in its sole discretion
make safe, reliable and affordable electric service available to its citizens by means of the
construction, operation and maintenance of power generation facilities and associated
transmission and distribution systems in and ors the roadways and associated easements
and rights-of-way of the City and such electric :service would provide an economic benefit
to the City's inhabitants, property owners and I~usinesses.
Ordinance No. 01 ~-1559
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(3) The City holds the public rights-of-way within its boundaries in trust
on behalf of its citizens and has a duty to utilize or permit others to utilize rights-of-way
in an appropriate manner while insuring that tl~e City properly manages its resources to
the maximum reasonable economic benefit of its citizens.
(4) The City is the sole authority empowered to own, operate and
maintain the City streets, easements and rights-of-way within the City and structures
located thereon and to grant the use of such streets, easements and rights-of-ways to
others.
(5) The City has a continuing duty pursuant to the Code of Ordinances
for the City of Longwood and Florida Statutes, to regulate the use of its rights-of-ways
within the City's jurisdiction in order to protect tY~e health, safety and welfare of the citizens
living and working in the City.
(6) Part II, CITY CODE, Chapter 1, General Provisions, Code of
Ordinances for the City of Longwood, contains the basic authority to regulate franchises
from the City to any corporation, partnerships, or private individuals operating within the
municipality.
(7) The City's powers, both governmental and proprietary, in regard to
its rights-of-way have not been preempted by 1:he Florida Legislature.
(8) The Florida appellate decision known as City of Oviedo v. Alafaya
Utilities, Inc., 704 So. 2d 206 (Fla. 5th DCA 1998) has construed Section 337.401(1),
Florida Statutes, to allow cities to grant the use of their rights-of-way subject to such
reasonable rules and regulations governing such use as any such city deems necessary
or appropriate.
(9) The City is entitled to collE~ct from franchisees a fee in return for a
.grant of property rights to franchisees, namely the use and occupation of the rights-of-way
and public lands within the cityforthe construction, ownership, operation and maintenance
of electric distribution lines and associated facilities. .Alachua County v. State of Florida,
737 So. 2d 1065 (Fla. 1999); City of Plant CitLv. Mateo, 337 So. 2d 966 (Fla. 1976); Santa
Rosa Count~v.G~If Power Co., 635 So. 2d 9E=~ (Fla. 1St DCA 1994).
('I0) In order to insure that any franchise fee to be assessed against or
negotiated with any franchisee which is granteel the authority to use and occupy the City's
right-of-way hereunder is appropriate and reasonable, the City declares that it may
consider the testimony and advice of expert:> as to what constitutes an appropriate,
reasonable and market-rate franchise fee and viill negotiate and determine franchise fees
based on such testimony and advice and other relevant considerations.
Ordinance No. 01 ~-1559
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(11) The City's police powers in regard to its rights-of-way and Public lands are
not preempted by the Florida Public Service Commission. See Section 366.11(2), Florida
Statutes.
(12) The City may charge rent for use of its rights-of-way and public lands so long
as the amount of the rental has a reasonable nexus with the rental value of the rights-of-
wayand public lands, as stated in Alachua, County v. State, 737 So. 2d 1065 (Fla. 1999),
City of Pensacola v. Southern Bell Telephone Co., 37 So. 820 (Fla. 1905), and City of St.
Louis v. Western Union, 148 U.S. 92 (1893).
(13) The aesthetics of the City are advE;rsely affected by the Franchisee's use and
occupation of the City's rights-of-way and public lands;
(14) The City is limited in its use of it:~ rights-of-way and public lands used and
occupied by Franchisee, in that it cannot allow ~3nother utility to occupy that space, so long
as the Franchisee remains in the rights-of-way and public lands;
(15) The occupation of the rights-of-w~~y by the Franchisee results in higher costs
when the City makes improvements to the rights-of-way;
(16) It is hereby declared a matter protecting the public health, safety and welfare.
from unsafe and unauthorized use of public property interests, benefitting the public
health, safety and welfare and in the best interests of the. City and its inhabitants, property
owners and merchants, that the City make aff~~rdable, safe and reliable electric service
available within the City.
(17) It being within the City's authority to do so, the City hereby establishes the
reasonable conditions set forth below which sh,~ll be the minimum conditions under which
any existing franchise to provide electric distrit~ution service shall be governed upon the
expiration of any such franchise and until the terms of a new franchise are agreed and
under which any future franchises to provide Electric distribution service within the City
shall be granted by the City.
(18) The City hereby adopts this Ordinance pursuant to the power and authority
granted to the City by Article VIII, Section 2, Florida Constitution Chapter 166, Florida
Statutes.
(19) Due to the pervasive regulation of telecommunications by federal law, the
City specifically makes these minimum franchi:~e conditions inapplicable to any franchise
relative to the provision of telecommunications service.
~ SECTION 3~ NATURE OF FRANCFIISE GRANTED. The City may grant any
,1
Ordinance No. 01 ~-1559
Page Four
franchisee ("Franchisee")which the City finds capable of meeting the requirements of this
Ordinance anon-exclusive right to construct, operate and maintain an electric distribution
system ("Electric Distribution System") within the rights-of-way in the City. Any such
franchise shall be provided by the City by means of a specific franchise ordinance which
shall be negotiated at arms length with the intended Franchisee, and which shall at
minimum, incorporate the terms and conditions contained herein and shall also contain
additional terms and conditions consistentwith'the City's authority under Florida law which
the City and Franchisee may negotiate (the "Electric Distribution Service Franchise").
Applicants for an EIsctric Distribution Service Franchise shall submit to the City written
application on forms to be provided by the City. All such franchise applications when filed
shall be available for publicinspection at place: designated by the City. No later than sixty
(60) days after the application is submitted, thf~ first of two or more public hearings shall
be held on the application. A decision shall be made by the City not later than twenty-one
(21) days after the conclusion of the last of such public hearings based upon an evaluation
of the application, the hearings, and other information that the City may deem relevant.
The applicant shall assume the cost of publication ofi any ordinance to grant a franchise,
as such publication is required by law, and such is payable prior to final consideration of
the request by the City commission. No person, firrn, or entity may conduct business in
the City's right-of-~nray unless it complies with the terms of this Ordinance unless said
person, firm, or corporation was in place and operating prior to the grant of any franchise
to that person, firm or corporation by the City. Grant of a franchise under this Ordinance
shall create a vested right in the Franchisee for the term of the. franchise, subject to state
law and this Ordinance.
SECTION 4. RESERVATION OF RIGHITS. Nothing in this Ordinance or in any
Electric Distribution Service Franchise shall be construed to prevent the City from
constructing any publicfacility, grading, paving, repairing and/or altering any rights-of-way
or easements. Wllhenever the City deems it necessary that Franchisee's Electric
Distribution System and any rights-of-way or Easements must be relocated, Franchisee
shall relocate, support and protect that porti~~n of the Electric Distribution System at
Franchisee's sole cost. In such event, the City shall order the relocation in writing and
provide Franchisee with adequate time to complete the relocation. The City agrees to
cooperate with Franchisee in an effort to minimize interruption electric service and any
.relocation cost. The City hereby expressly res~:rves the following additional rights to:
(1) Exercise its governmental powers, now or hereafter, to the full extent
that such powers may be vested in or granted to the City.
(2) Adopt, in addition to the provisions contained herein, in the Electric
Distribution Service Franchise and in any existing ordinances, such
additional reasonable regulations as it shall find necessary and
appropriate in the exercise of its police powers. Nothing herein shall
Ordinance No. 01--1559
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be construed as a waiver of the Franchisee's legal rights to timely
contest the exercise or the validity of the exercise of the City's police
powers.
(3) Renegotiate in good faith ~~ny Electric Distribution Service Franchise
granted pursuant to this Ordinance should any material provision of
this Ordinance or the Electric Distribution Service Franchise be
declared unenforceable, illegal or invalid.
The City shall have the right at any time during the life of an Electric
Distribution Service Franchise granted herein to acquire by
condemnation for any puk~lic purpose all or part of the distribution
system, placed under this grant within the City's property, streets or
rights-of-way, at a fair and just value, which shall not include any
amount for the grant itself, or of any of the rights and privileges
hereby granted, and this grant and franchise shall thereupon
terminate as to the portion so acquired by the City.
(5) The City specifically reserves the right to grant, at any time, as many
~ Electric Distribution Service Franchises as it deems appropriate;
provided, however, that no such additional grant shall operate to
materially modify, revoke ~~r terminate any rights previously granted
to any Franchisee.
(6) No provision of this Ordinance shall be deemed to bar the right of the
City to seek or obtain judicial relief from a violation of any provisions
of this Ordinance., an Electric Distribution Service Franchise or any
rule, regulation, requirerrient or directive promulgated under this
Ordinance, whether administratively, judicially or both. Neither the
existence of other remeclies identified in this Ordinance nor the
exercise thereof shall be deemed to bar or otherwise Limit the right of
the City to recover fines, penalties or monetary damages for such
violation by Franchisee or judicial enforcement of Franchisee's
obligations by means of specific performance, injunctive relief or
mandate or any other administrative remedy or judicial remedy at law
or in equity.
SECTION S. TERM OF FRANCHISE. ~~ny Electric Distribution Service Franchise
shall have a fixed term not to exceed thirty (30;1 years, commencing on the Effective Date
thereof and ending on the agreed anniversary ~~ate thereafter ("Franchise Term"), unless
terminated sooner in accordance with the provisions of this Ordinance or the terms
~ contained therein.
Ordinance No. 01-1559
Page Six
SECTION ACCESS TO RIGHTS OF WAY. Franchisee or its designee shall be
responsible for the cost associated with the design, construction and operation of the
Electric Distribution System and any modifications thereto. The City shall provide
~ Franchisee access to its rights-of-way within the City necessary to allow the timely
construction, operation and maintenance of thE: Electric Distribution System as permitted
in the applicable Electric Distribution Service Franchise..
SECTION 7. CONDITIONS ON USE OI RIGHTS OF WAY. The following shall
constitute general conditions applicable to tt-ie placement of any Electric Distribution
System within the City's streets, rights-of-way or property:
(1) Prior to the installation, placement or removal of any conduits,
facilities, cables or pole lines, or the start of any other type of
construction on the public rights-of-way, Franchisee shall, pursuant
to the requirements of existing or subsequently enacted City
ordinances, obtain all permits from, and' pay all applicable fees to, the
City's Department of Public Works. Such permits shall set out the
place, date and time where the cables or pole lines, or other form of
construction, are to be installed, or removed or where the
~ construction is to be conducted. All permit applications submitted by
Franchisee shall contain flans showing known utility facilities and
~ specifications, and the pi°oposed location of its conduits, cables,
poles, lines and other associated facilities. No such permit shall
create a vested property right in the Franchisee.. Further, issuance
of a permit by the City shall not be construed by Franchisee as a
warranty that the placement by Franchisee of its Electric Distribution
System is in compliance with any applicable rules, regulations or
laws.
(2) Any type of construction b~y Franchisee shall be performed with the
least possible interference with the use of the public rights-of-way and
to adjoining property owners and in compliance with the rules and
regulations of the State Department of Transportation and any other
applicable governmental authority having jurisdiction.
(3) Any addition or improvement to the Electric Distribution System
placed without first having obtained all applicable City permits shall
be removed within thirty (30) days' written notice by the City to
remove the same and, in elefault of compliance with such notice, the
conduits, cables or poles may be removed by order of the Department
of Public Works of the City and the cost of removal shall be borne
and paid by Franchisee, or in the event the City approves the
Ordinance No. 01-1559
~ Page Seven
placement of same after the fact, Franchisee shall obtain all requisite
permits therefor and pay gill applicable penalties and fees.
(4) Franchisee shall not in any way displace, damage or destroy any
electric distribution systern, se~nrer, water main, pipe or any other
facilities belonging to the City, or to any third party who placed such
facilities therein by express authority of the City, without the consent
of the City, and Franchisee shall be liable to the City or to the third
party owner, as the case may be, for the cost of any repairs made
necessary by any such displacement, damage or destruction and
shall pay such costs within thirty (30) days of Franchisee's receipt of
an invoice for same.
(5) Franchisee shall, at its ovvn cost and expense, replace and repair
without delay any sidewalk, public way, alley, highway, waterway,
bridge or any other public: place that has been excavated, broken,
removed, displaced, or disarranged by Franchisee during the
' construction, maintenance and operation of any portion of the Electric
_ Distribution System, or as a result of the deterioration of any portion
~ of the Electric Distribution System, and restore the same to as good
a condition as it existed ~~rior to Franchisee commencing its work.
Upon failure of Franchisee to do so after thirty (30) days' written
notice by the Director of Public Works of the City, the City may make
such repairs and replacerents as it deems reasonably necessary,
and Franchisee shall pay the City upon demand all costs of such
repairs and replacements. Franchisee shall, to the satisfaction of the
Public Works Director, warrant any repairs it makes pursuant to this
section against defects in materials and workmanship for a period of
one year following the data of such repair.
(6) Franchisee shall use all proper and reasonable care in connection
with any work which it m~~y do pursuant to an Electric Distribution
Service Franchise in seek;ing to prevent harm, damage or injury to
persons or property therefrom.
(7) The Franchisee shall not, and shall prohibit any officer, agent,
employee, contractor or subcontractor which the Franchisee retains,
from removing or substantially trimming any tree or major portion
thereof, either above, at or below ground level, which is located within
a public way without the prior written approval of the City. Each
- Franchisee shall be responsible for all damages arising from or
~ resulting from the removal; trimming, mutilation of or any injury to any
Ordinance No. 01--1559
Page Eight
tree proximately caused key the Franchisee or its officers, agents,
employees, contractors or subcontractors.
(8') Franchisee shall also keep all rights-of-way occupied by the Electric
Distribution System free o~F excess debris.
SECTION 8. STANDARDS FOR THE ELECTRIC DISTRIBUTION SYSTEM. The
Electric Distribution System shall meet or exceed the standards and requirements
established by the Florida Public Service Commission and must also comply with the
following requirements: (a) the equipment usE:d in the Electric Distribution System must
be capable of operating in a safe and reliable manner as determined by the Florida Public
Service Commission; (b) the Electric Distribution System must be constructed in a way
which does not obstruct or otherwise make uno,~sable any of the City streets or rights-of-
way; (c) the Electric Distribution System shall k~e constructed in a manner consistent with
all applicable laws of the State of Florida and of the United States as well. as all applicable
codes, standards and permit requirements.
SECTION 9. FRANCHISE FEES/ AUDIIT RIGHTS.
~ (1) Franchise Fee Payment. As a consideration for the grant of any
' Electric Service Distribution Franchise, Franchisee shall pay to the City a franchise fee
("Franchise Fee°') in the amount to be negotiatE~d by Franchisee and the City based upon
a reasonable percentage of the annual gross; revenue of Franchisee from the sale of
electric energy over the Electric Distribution Sy:item or any such other mutually agreeable
methodology as the reasonable rental and use for such rights-of-way. The Franchise Fee
provided for herein shall constitute the exclusive payment by Franchisee to the City for
Franchisee's use and occupancy of the rights-of-way within the City's boundaries. For
purposes of this Ordinance, a franchise fee of six percent (6%) shall be rebuttably
presumed to be a reasonable franchise fee. 1'he City may negotiate with Franchisee a
Franchise Fee which is more or less than si:x percent (6%) in return for other value
provided to the City through negotiations with Franchisee or based on other relevant
considerations.
(2) Time of Payment. Within thirty (30) calendar days after the close of
each quarter, the Franchisee shall pay the franchise fee as provided in subsection (a) of
this section and file with the City's finance director a statement, signed and certified by an
authorized accountant or financial representative of Franchisee, of the revenues derived
in the preceding quarter. Acceptance of any franchise fee payment shall not be deemed
a waiver or release of any claims the City may leave for additional sums, nor be construed
as an accord that the amount paid is correct.
Ordinance No. 01--1559
Page Nine
(3) Documentation and Audiit Rights. Accompanying each Franchise
Fee payment, Franchisee shall prepare and provide all reasonable calculations and
documentation necessary to support the Francf•iise Fee payment calculations. In the event
the City disputes the amount of any Franchi:~e Fee payment made, the City shall be
entitled to perform or cause to be performed an audit of Franchisee's accounts with
respect to revenues earned by Franchisee from the sale of electric energy over Electric
Distribution System. The City shall provide Fr~~nchisee with thirty (30) days prior written
notice of its intent to perform any such audit. Upon receipt of such notice, Franchisee shall
make available the applicable documentation ~~nd records necessary to allow the City to
perform the audit.
(41) Audit. The City may require an audit of Franchisee's books. not more
frequently than onre each calendar year. Franchisee will reimburse City's audit costs if
the audit identifies errors in the Franchisee's Franchise Revenues of five percent (5%) or
more for the period audited that results in Franchisee having underpaid the Franchise Fee.
Errors identified during the audit process shall be projected retrospectively for any
additional time periods not covered during they audit if there is a reasonable probability
these errors occurred during the unaudited period., but not for more than five (5) years.
tf an underpayment of the Franchise Fee has o~~curred, interest will be computed at a rate
~ of ten percent (10%) per annum from the datE~ such underpayment was originally due.
Both the underpayment and interest shall be paid within thirty (30) days after receipt of
. demand therefor from City.
(5) Other Taxes. The sums o~F money to be paid by the Franchisee to the
City under this section are compensation and consideration for the use by the Franchisee
of the City's public ways for the construction, rnaintenance and operation of the Electric
Distribution System and are not taxes as allowed by the Florida Constitution, the general
or special laws of the state, or any other ordin~~nces of the City. The Franchisee shall at
all times continue to be subject to public servicE~ taxes (F.S. § 166.231), ad valorem taxes
(F.S. § 166.211) and such other taxes, charges or fees as may be lawfully authorized by
the Florida Constitution, the general or speci;~l laws of the state, the provisions of the
Municipal Home Rule Powers Act (F.S. ch. 16Ei) or the ordinances of the City.
SECTION 1 u. PERFORMANCE SECUA:ITY. Franchisee shat l exercise none of the
rights granted by permit, franchise or this Ordin.nce until evidence of compliance with the
following bonding and insurance requirements has been filed with the City of Longwood,
Florida. Should the Franchisee fail to comply with said requirements, it shall acquire no
rights, privileges or authority under the permit, franchise or ordinance whatsoever.
a. Bond.
a. The bond shall pro~iide the following conditions:
Ordinance No. 01 ~-1559
Page Ten
There shall be recoverable by the City jointly and severally
from the principal a,nd surety any and all fines and penalties
due to the City and any and all damages, losses, costs and
expenses suffered or incurred by the City resulting from the
failure of the Franchisee to: faithfully comply with the
provisions of the Franchise or this Ordinance; comply with all
lawful orders- or permits issued by any City agency or body
having jurisdiction aver Franchisee's acts or defaults; pay fees
due to the City; pay any claims due the City as resulting from
judicial action; pay any claims, liens or taxes due the City
which arise by reason of the construction, operation,
maintenance or repair of the Electric Distribution System.
b. In the event the Franchisee abandons the Electric Distribution
System at any time during the term of the Franchise or any
extension thereto, i:he bond shall be forfeited in favor of the
City in an amount necessary to compensate the City of any
damage, loss, exK~ense, attorneys' fees and costs it has
suffered as a result of such abandonment.
c. At any time the EtE~ctric Distribution System is upgrading or
rebuilding, all or any portion of the Electric Distribution
System, the Franchisee shall provide a performance bond in
the amount of 1'10% of the estimated cost of public
improvements in the right-of-way until all construction is
completed.
d. The Franchisee shall also maintain, at all times, during the
time of the Franchise, an annual performance bond in the
amount of Two Hundred Thousand Dollars ($200,000.00) to
guarantee the payment of all sums which may become due to
the City and also guarantee the repair, removal and/or
relocation works required under this Ordinance or the
Franchise. A copy of the annual bond shall be provided to the
City together with Each right-of-way permit application. The
face dollar amount of the bond shall be adjusted annually as
of the end of each fiscal year in accordance with changes in
the cost-of-living index as published by the federal
government.
e. The bonding requirements provided in subsection (c) above.
4.- may be waived whE~re Franchisee certifies and demonstrates
Ordinance No. 01 ~-1559
Page Eleven
a net worth of not Less than $100 million; provided however,
the Franchisee shall be responsible for and agree to indemnify
the City for the liability o~F contractors and subcontractors, or
each of them, employed by or on behalf of such Franchisee
when performing work on or adjacent to public rights-of-way or
property.
(2) Notice. The performancE~ bonds required herein shall be in a form
satisfactory to the City anti shall require thirty (30) days' prior written
notice to the City and the Franchisee of any intention of non-renewal,
alteration or cancellation. The Franchisee shall, in the event of any
such intended cancellation notice, obtain, pay all premiums for, and
file replacement bonds or policies within thirty (30) days following
receipt by the City or the Franchisee of any notice of intended
cancellation.
SECTION '11. INSURANCE. During the Franchise Term, Franchisee or its
designated agent shall maintain or cause to be maintained liability insurance satisfactory
to the City the types of insurance describE~d herein. All insurance shall be from
~ responsible companies, duly authorized to do business in the State of Florida having a
rating in Best's Insurance Guide of A or better, unless Franchisee is authorized as a self-
insurer by the Department of Insurance under i:he laws of the State of Florida. All liability
policies shall provide that the City is an additional insured as to the operations under this
chapter. The required coverages must be evidenced by properly executed certificates of
insurance forms.. The certificates must be signed by the authorized representative of the
insurance company and shall be filed and maintained with the City annually during the
Franchise Term. Thirty (30) days advance written notice by registered or certified mail
must be given to the City of any cancellation, intent not to renew or reduction in the policy
coverages. All insurance policies shall be subject to the review and approval of the City
as to form., content and insurance carrier, copies of which shall be provided to the City
prior to the effective date and as a condition of i:he Electric Distribution Service Franchise.
(1) The limits of coverage of insur~~nce required shall be not less than the
following:
a. Worker's Compensation and Emp_loyer's Liability Insurance
Worker's Compensation -Florida Statutory Requirements,
Employer's Liability - $500,000 limit each accident
$500,000 limit per accident
$500,000 limit per each ernployee
~ b. Comprehensive General Liability
0
Ordinance No. 01-1559
Page Twelve
Bodily injury and property clamage - $5,000,000 combined single limit
each occurrence.
c. Automobile Liability
Bodily injury and property clamage - $5,000,000 combined single limit
each accident.
SECTION 12. INDEMNIFICATION.
(1) General Indemnity. Franchisee shall defend, indemnify and hold
harmless the City, its employees, board merribers, agents, officers and assigns, their
respective employE;~:s, agents, officers, partners and directors and any one else acting for
or on behalf of them and any of their respective assigns, from and against all liabilities,
claims, damages, losses and expenses (including reasonable attorneys' fees and court
costs) for injury to or death of persons, including employees of fhe City, and far loss or
damage to property which directly or indirectly arise out of or results from (a) the
installation, operation or maintenance of the Electric Distribution System, (b) any territorial
dispute brought against the City based on the electric service provided over the Electric
Distribution System, or (c) any willful misconduct or negligent, reckless or tortuous act or
~ omission (including strict liability) of Franchisee or any person employed by Franchisee,
or anyone for whose acts Franchisee may be li:~ble in connection with the activities under
this Ordinance. The City shall give prompt notice to Franchisee of any claim or suit and
shall cooperate at no cost to the City in the depense of any such claim or suit.
(2) Environmental Indemnit~~. Franchisee shall comply with all rules,
regulations, ordinances and statutes concerning the handling, storage, and disposal of
hazardous material" ("Hazardous Materials") used or in the construction, operation or
maintenance of the Electric Distribution System. Franchisee shall be responsible for the
proper collection, removal and disposal of any Hazardous Materials furnished, used,
applied or stored on any rights-of-way or emanating from the Electric Distribution System
as a result of activities performed pursuant to ~~n Electric Distribution Service Franchise.
Franchisee shall indemnify and defend and hold the City and its agents, employees, and
representatives harmless from and against any claim, suit, loss, cost,. liability, fine, or
damage (including reasonable attorneys' fees), including, but not limited to, liability or cost
incurred or assessed against the City pursuant to 42 USC 9601, et. seq., "Comprehensive
Environmental Response, Compensation and Liability Act of 1980" and Amendments
thereto, 15 USC 2601, et. seq., "The Toxic Substances Control Act" and Amendments
thereto, 42 USC 6901, et. seq., "The Resource Conservation and Recovery Act of 1976"
and Amendments thereto, or other applicablE~ laws and regulations which have been
asserted by any person, including governmental entities, based on or related to complaints
or allegations., whether or not supported by f~~ct, that soils, leachate, effluent, or other
'1
Ordinance No. 01 ~-1559 .
`"y' Page Thirteen
residue located on, or emanating from or arisirn~ from the soils, subsurface of the Electric
Distribution System located on any rights-of-w,~y contain Hazardous Materials.
SECTION 1 EVENTS OF TERMINATION AN®TERMINATION OF FRANCHISE.
(1) Term and Termination. ~~ny Electric Distribution Service Franchise
shall remain in effect until the earlier of the following to occur: (a) the Electric Distribution
Service Franchise reaches the end of its Franchise Term; (b) the City terminates the
Electric Distribution Service Franchise pursuant to Subsection (2) below; (c) Franchisee
.abandons the Electric Distribution System; or (d) the City and Franchisee enter into a
superseding Electric Distribution Service Fran~;hise.
(2) Termination for Default. Each of the following shall constitute a
default by Franchi:>ee under the terms of an Electric Distribution Service Franchise:
(a) Franchisee abandons the Electric Distribution System; or,
(b) Franchisee fails to comply with this Ordinance, the Electric
Distribution Service Franchise, applicable laws or regulations governing its
~ activities with respect to the Electric Distribution System; or,
(c) Franchisee fails to perform its material obligafions under this Ordinance
or the Electric Distribution Service Franchise.
Upon the occurrence of any of the above events of default by Franchisee, the City
shall provide written notice detailing the event o~f default. The Franchisee shall within thirty
(30) days of the date of written notice from the City substantially undertake and promptly
correct such default and certify same to they City. If Franchisee fails to commence
correction of the default within thirty (30) days sifter written notice by the City, the City may
terminate and revoke the Electric Distribution Service Franchise. Such termination and
revocation shall be by ordinance duly adopted, and shall in noway affect any of the City's
rights and remedies under the Electric Distribution Service Franchise, this Ordinance or
any provision of law. In the event that such termination and revocation depends upon a
finding of fact, such finding of fact as made by the City shall be conclusive; provided,
however, that before on Electric Distribution Service Franchise, may be terminated and
revoked under this section, Franchisee must be provided with an opportunity to be heard
before the City Commission.
(3') The City's Rights in the Event of Termination. In the event that the
City terminates and revokes an Electric Distribution Service Franchise under the
provisions of Subsections (2)(a), (2)(b), (2)(c) above or Section 17 below, Franchisee
~ shall at City's sole option do one of the following:
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Ordinance No. 01--1559
Page Fourteen
(a) within an reasonable period after notice from the City to do so,
remove any of the Electric Distribution System within the rights-of-way
and the rights-of-way shaill be restored to the condition they were
prior to the start of the construction of the Electric Distribution
' System; or,
(b) sell to the City the Electric Distribution System or portions thereof at
the then current book value as agreed by the City and Franchisee.
if such value cannot be agreed by the parties, the book value shall be
established by binding arbitration.
In the event the City terminates and revokes an Electric Distribution Service
Franchise because the Franchisee abandons the System, then the Electric Distribution
System shall be forfeited to the City.
SECTION 14. PURCFIASE OPTION REQUIREMENT. No Electric Distribution
Service Franchise shall be granted by the City f•iereunder unless such Electric Distribution
Service Franchise reserves the right of the City and requires the Franchisee, as a
condition precedent to the effectiveness of the.lElectric Distribution Service Franchise, the
~ right at and after the Franchise Term to purchase Franchisee's Electric Distribution System
' or any portion thereof as the City may desire. The purchase price shall be based upon the
valuation of the Electric Distribution System (~~r portion thereof) established by binding
arbitration as provided by law. Nothing in this Section 14 shall prevent the City and
Franchisee from negotiating a purchase provision in which a purchase price for the Electric
Distribution System is pre-agreed.
SECTION '15. MAINTENANCE OF ELECTRIC DISTRIBUTION SYSTEM.
Franchisee or its designee shall during the Franchise Term, keep the Electric Distribution
System in good operating condition and rnake any such repairs, alterations, or
modifications necessary to keep the Electric Distribution System in good working order and
capable of operating in accordance with appli~~able laws and permits. Franchisee shall
make any such repairs, alterations or modifications in a timely manner.
SECTION 15. ASSIGNMENT. Franchisee may not sell or transfer the rights under
an Electric Distribution Service Franchise witl-iout the consent and approval of the City
Council of the City of Longwood. Nothing contained in this Section 15 shall preclude
Franchisee from subcontracting its rights and obligations under an Electric Distribution
Service Franchise to a qualified subcontractor for the provision of construction services,
operation and maintenance services or otherwise.
SECTION 1~. TERMS GOVERNING "HOLD OVER" FRANCHISEES. In the event
that any Franchisee has been granted a franchise by the City prior to the date of this
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Ordinance No. 01-1559
Page Fifteen
Ordinance (a "Pre-existing Franchise") or if an Electric Distribution Service Franchise
granted under this Ordinance is terminated, revoked, or expires then upon the termination,
revocation or expiration of said franchise, the i~ollowing shall apply:
(1) Termination of Franchise. The City may in at its sole discretion,
either terminate the franchise rights of Francl'iisee or enter into negotiations for a new
franchise consistent with the requirements of this Ordinance.
(2) Interim Rights of Parties. If the City chooses to enter into
negotiations with a Franchisee under Section '17(1) above, or if aPre-existing Franchise
holder refuses to renew or extend its Pre-existing Franchise, or if the Pre-existing
Franchise expires under its own terms, or if a termination event under Section 13 occurs,
then Franchisee shall be considered a tenant at sufferance on the City's property, streets
and rights-of-way and shall be obligated to continue to perform its obligations under the
terms of the terminated Pre-existing Franchise or Electric Distribution Service Franchise
(as applicable) until any such negotiations have been completed and a new Electric
Distribution Service Franchise has becomE~ effective or, if applicable, arbitration
proceedings have been completed and the City has exercised its option to acquire title and
complete the purchase of the Electric Distribution System.
(3) Hold Over Franchisee:?_ Any pre-existing purchase options
contained in the Pre-existing Franchise shall survive and continue unabated unless and
until (a) replaced by a purchase option in a replacement Franchise or (b) exercised by the
City.
SECTION 18. SEVERABILITY. If any section, subsection, sentence, clause,
phrase, or portion of this Ordinance is for any reason held invalid or unconstitutional by
any Court of competent jurisdiction, then that section., subsection, sentence, clause,
phrase, or portion deemed invalid or unconstitutional shall be deemed a separate, distinct
and independent provision and such holding shall not affect the validity of the remaining
sections, subsections, sentences,. clauses, I~hrases, or portions of this Ordinance;
provided, however, that the remaining portions of the Ordinance when read together shall
constitute a feasible, reasonable, workable plan to permit Franchisee and the City to carry
out the intent of this Ordinance.
SECTION 19. CODIFICATION. It is thE~ intention of the City Commission that the
provisions of this Ordinance shall become and be made a part of the Code of Ordinances
of the City of Longwood; and that sections of 1:his Ordinance may be renumbered or re-
lettered and the word "ordinance" may be ch~~nged to "section," "article," or such other
appropriate word or phrase in order to accornpiish such intentions; and regardless of
whether such inclusion in the code is accomplished, sections of the ordinance may be
~y renumbered or re-lettered and typographical errors which do not affect the intent may be
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Ordinance No. 01 ~-1559
Page Sixteen
authorized by the City Administrator, or his designee, without need of public hearing, by
filing a corrected or recodified copy of the same with the City Clerk.
SECTION 20. ENFORCEMENT. No provision of this Ordinance shall be deemed
to bar the right of the City to seek or obtain judicial relief from a violation of any provisions
of this Ordinance, an Electric Distribution SE~rvice Franchise or any rule, regulation,
requirement or directive promulgated under ~:his Ordinance, whether administratively,
judicially or both. Neither the existence of other remedies identified in this Ordinance nor
the exercise thereof shall be deemed to bar or otherwise limit the right of the City to
recover fines, penalties or monetary damages 1~or such violation by Franchisee or judicial
enforcement of Franchisee's obligations by me~~ns of specificperfiormance, injunctive relief
or mandate or any other administrative remedy or judicial remedy at law or in equity.
SECTION 21. EFFECTIVE DATE. This Ordinance shall become effective ten (10)
days after its final passage and adoption.
BZ n® I
PASSED AND ADOPTED, this ~'~day of A.D~fl66~'
FIRST READING: t~c-r~~z-c-r_ /.a , 2001.
SECOND READBNI;: S , 2001.
Paul Lovestrand
• Mayor of the City of Longwood
ATTEST:
C ~L~/`~~rl~~,G' Lie%'~'~/~'.^"~` ~
City Clerk, Geraldir ebb. Zambri
APPROVED AS TO FORM AND LEGALITY
for the use and reliance of the City of
Longwood, Florida, only.
4Richard S. Taylor, Jr.~City
Attorney