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11-81 ORDINANCE NO. 11-81 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DELRAY BEACH, FLORIDA, GRANTING TO FLORIDA POWER & LIGHT COM- PANY, ITS SUCCESSORS AND ASSIGNS AN ELECTRIC FRANCHISE, IMPOSING PROVISIONS AND CONDITIONS RELATING THERETO, PROVIDING FOR MONTHLY PAYMENTS TO THE CITY; PROVIDING A SAVING CLAUSE; PROVIDING AN EFFECTIVE DATE. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF DELRAY BEACH, FLORIDA, AS FOLLOWS: Section 1. That there is hereby granted to Florida Power & Light Company (herein called the "Grantee"), its successors and assigns', the non-exclusive right, privilege or franchise to construct, maintain and operate in, under, upon, over and across the present and future streets, alleys, bridges, easements and other public places in the City of Delray Beach, Florida (herein called the "Grantor") and its suc- cessors, including future annexed areas, in accordance with established practice with respect to electrical construction and maintenance, for the period of 30 years from the date of acceptance hereof, electric light and power facilities (including conduits, poles, wires and trans- mission lines, and, for its own use, telephone and telegraph lines) for the purpose of supplying electricity to the Grantor and its successors, and inhabitants thereof, and persons and corporations beyond the limits thereof. Section 2. That as a condition precedent to the taking effect of this grant, the Grantee shall have filed its acceptance hereof with the Grantor's Clerk within 30 days hereof. Section 3. That the facilities of the Grantee shall be so located or relocated and so erected as to interfere as little as pos- sible with traffic over said streets, alleys, bridges and public places, and with reasonable egress from and ingress to abutting property. Reasonable relocation of such facilities as may be requested, by the City shall be at no cost to the City. The location or relocation of all facilities shall be made under the supervision and with the approval of such represehtatives as the governing body of the Grantor may designate for the purpose, but not so as to unreasonably interfere with the proper operation of the Grantee's facilities and service. When any portion of a street is excavated by the Grantee in the location or relocation of any of its facilities, the portion of the street so excavated shall, within a reasonable time and as early as practicable after such excava- tion, be replaced.by the Grantee at its expense and in a condition as good as it was at the time of such excavation. Section 4. That Grantor shall in no way be liable or respon- sible 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 os maintenance of its facilities hereunder. Section 5. That all rates and rules and regulations estab- lished by the Grantee from time to time shall at all times be reasonable and the Grantee's rates for electricity shall at all times be subject to such regulations as may be provided by law. Section 6. That no later than 60 days after the first anniver- sary date of this grant, and no later than 60 .days after each succeeding anniversary date of this grant, the Grantee, its successors and assigns, shall have paid to the Grantor and its successors an amount which added to the amount of all taxes as assessed, levied, or imposed (without regard to any discount for early payment or any interest or penalty for late payment), licenses, and other impositions (except amounts for special assessments for special benefits, such as sidewalks, street paving and similar improvements) levied or imposed by the Grantor upon the Grantee's electric property, business, or operations, and those of the Grantee's electric subsidiaries for the preceding tax year, will equal six percent of the Grantee's revenues from the sale of electrical energy to residential, commercial and industrial customers within the corporate limits of the Grantor for the 12 fiscal months preceding the applicable anniversary date. Section 7. That payment of the amount to be paid to the Grantor by the Grantee under the terms of Section 6 hereof shall be made in advance by estimated monthly installments commencing 90 days after the effective date of this grant. Each estimated monthly installment shall be calculated on the basis of 90% of the Grantee's revenues (as defined in Section 6) for the monthly billing period ending 60 days prior to each scheduled monthly payment. The final installment for each fiscal year of this grant shall be adjusted to reflect any underpayment or overpayment resulting from estimated monthly installments made for said fiscal year. Section 8. That Grantor may, at its option,' upon reasonable notice to Grantee, at any time within 90 days after the close of each fiscal year of this grant, at the sole expense of Grantor, examine the books of Grantee as such books relate to calculation of the franchise payment to the Grantor. Such examination of Grantee's books and records shall be during Grantee's regular business hours' and at the General Office of the Grantee. Section 9. That the rights and obligations under this ordi- nance shall not be assigned or transferred without the approval of the Grantor (except by operation of law, by action of the Trustees under Grantee's Mortgage and Deed of Trust dated as of January 1, 1944 as -heretofore and as it may be hereafter supplemented, or by corporate merger or reorganization), and which approval shall not be arbitrarily or unreasonably withheld. Section 10. That as a further consideration of this franchise, the Grantor agrees not to engage in the business of distributing and selling electricity during the life of this franchise or any extension thereof in competition with the Grantee, its successors and assigns. Section 11. That Grantor reserves the right, upon the expira- tion of the franchise term herein provided, to purchase the property of the Grantee used under this grant, for an amount equal to the then existing cost of replacement of such property, less depreciation to date of sale, plus severance costs and going concern value. All closing costs of such purchase shall be borne by Grantor with the exception of Grantee's attorneys' fees. Nothing herein contained shall require Grantor to acquire Grantee's property, or renew the franchise herein granted. Section 12. That failure on the part of the Grantee to comply in any substantial respect with any of the provisions of this ordinance shall be grounds for forfeiture of this grant, but no such forfeiture shall take effect if the reasonableness or propriety thereof is pro- tested by the Grantee until a court of competent jurisdiction (with right of appeal in either party) shall have found 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 the final - 2 - Ord. No. 11-81 determination of the question to make good the default before a for- feiture shall result with the right in the Grantor at its discretion to grant such additional time to the Grantee for compliance as necessities in the case require. Section 13. That should any section or provision of this ordi- nance or any portion hereof be declared by a court of competent juris- diction to be invalid, such decision shall not affect the valLdity of the remainder as a whole or as to any part, other than the part declared to be invalid. Section 14. That all ordinances and parts of ordinances in conflict herewith be and the same are hereby repealed, including Ordi- nance No. G-335, adopted October 26, 1959, which is hereby repealed in its entirety. Section 15. That this ordinance shall take effect on the date upon which the Grantee files its acceptance. PASSED AND ADOPTED in regular session on second and final reading on this the 10th day of March , 1981. MAYO'R LEON M. WEEKES ATTEST: City Clerk First Reading February 27, 1981 Second Reading March 10, 1981 - 3 - Ord. No. 11-81