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HomeMy WebLinkAboutCity of Tamarac Ordinance O-2002-010Temp. Ord. #1964 May 6, 2002 Page 1 1 CITY OF TAMARAC, FLORIDA ORDINANCE NO. 0-2002-10 AN ORDINANCE GRANTING TO FLORIDA POWER & LIGHT COMPANY, ITS SUCCESSORS AND ASSIGNS, AN ELECTRIC FRANCHISE, IMPOSING PROVISIONS AND CONDITIONS RELATING THERETO AND PROVIDING FOR MONTHLY PAYMENTS TO THE CITY OF TAMARAC; PROVIDING FOR CONFLICTS; PROVIDING FOR SEVERABILITY; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, there is currently in effect a franchise agreement between the City of Tamarac, Florida and Florida Power & Light Company, the terms of which are set forth in City of Tamarac Ordinance No. 76-57, passed and adopted January 12, 1977, and Florida Power & Light Company's written acceptance thereof dated January 26, 1977, granting to Florida Power & Light Company, its successors and assigns, a thirty (30) year electric service franchise (the "Current Franchise Agreement," a true copy of which is attached hereto as Exhibit "A"); and WHEREAS, the City of Tamarac filed a complaint against Florida Power Light Company in that certain cause styled City of Pompano Beach, Florida, et al. v. Florida Power & Light Company, In the Circuit Court of the 17t" Judicial Circuit in and for Broward County, Florida, Case No. 01-008883 (03) (the "Lawsuit," a true copy of which is attached hereto as Exhibit "B"); and J Temp. Ord. #1964 May 6, 2002 Page 2 WHEREAS, the Lawsuit challenged the amount of franchise fees payable by Florida Power & Light Company to the City under Section 6 of the Current Franchise Agreement, and asked the Court to reform the Current Franchise Agreement to increase the amount of franchise fees payable thereunder; and WHEREAS, Florida Power & Light Company vigorously disputed the allegations and claims in the Lawsuit; and WHEREAS, the City of Tamarac and Florida Power & Light Company desire to settle the Lawsuit by entering into a new thirty (30) year franchise agreement with the terms set forth below ("New Franchise Agreement") prior to expiration of the Current Franchise Agreement, and dismissing all of the City of Tamarac's claims against FPL in the Lawsuit with prejudice; and WHEREAS, the New Franchise Agreement is intended to settle and bar any and all claims by the City of Tamarac relating in any way to the amount of franchise fees payable by Florida Power & Light Company to the City, including without limitation any and all claims relating to the amounts and revenues used to calculate and pay such franchise fees, including but not limited to any and all claims that were or could have been asserted in the Lawsuit and any and all claims under Section 5 of the New Franchise Agreement, including without limitation any and all claims relating to the amounts and revenues used to calculate the franchise fee under that section; and C Temp. Ord. #1964 May 6, 2002 Page 3 WHEREAS, the City of Tamarac understands and agrees that the revenues described in Section 5 of the New Franchise Agreement are limited to the precise revenues described therein, and that such revenues do not include, by way of example and not limitation: (a) revenues from demand charges, (b) revenues from the sale of electrical energy for Public Street and Highway Lighting (service for lighting public ways and areas); (c) revenues from Other Sales to Public Authorities (service with eligibility restricted to governmental entities); (d) revenues from Sales to Railroads and Railways (service supplied for propulsion of electric transit vehicles); (e) revenues from Sales for Resale (service to other utilities for resale purposes); (f) franchise fees; (g) Late Payment Charges; (h) Field Collection Charges; (i) other service charges; and WHEREAS, the New Franchise Agreement will provide substantially increased benefits to the City of Tamarac; and WHEREAS, the City Commission of the City of Tamarac deems it wise and in the best interest of the City and its citizens to enter into the New Franchise Agreement prior to expiration of the Current Franchise Agreement; and WHEREAS, the City Commission of the City of Tamarac has had advice of its attorneys as to the meaning, intent, purpose and legality of the New Franchise Agreement; 11 Temp. Ord. #1964 May 6, 2002 Page 4 WHEREAS, the City Commission of the City of Tamarac ("City") recognizes that the citizens of the City need and desire the benefits of electric service; and WHEREAS, the provision of such service requires substantial investments of capital and other resources in order to construct, maintain and operate facilities essential to the provision of such service in addition to costly administrative functions, and the City does not desire to undertake to provide such services; and WHEREAS, Florida Power & Light Company is a public utility which has the demonstrated ability to supply such services; and WHEREAS, Florida Power & Light Company and the City desire to enter into a franchise agreement providing for the payment of fees to the City in exchange for the nonexclusive right and privilege of supplying electricity and other services within the City free of competition from the City, pursuant to certain terms and conditions; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF TAMARAC, FLORIDA: Section 1. There is hereby granted to Florida Power & Light Company, its successors and assigns (herein called the "Grantee"), for the period of 30 years from the effective date hereof, the non-exclusive right, privilege and franchise (herein 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 (herein called "public rights -of -way") throughout all of Temp. Ord. #1964 May 6, 2002 Page 5 the incorporated areas, as such incorporated areas may be constituted from time to time, of the City of Tamarac, Florida, and its successors (herein 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 all of the Grantee's operations (herein called "facilities"), for the purpose of supplying electricity and other electricity related 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 installed 1 Temp. Ord. #1964 May 6, 2002 Page 6 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. 1 1 :J 1 E Temp. Ord. #1964 May 6, 2002 Page 7 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. As a consideration for this franchise, the Grantee shall pay to the Grantor, commencing 90 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 taxes 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 60 days prior to each such payment will equal 5.9 percent (5.9%) of the Grantee's billed revenues, less actual write-offs, from the sale of electrical energy to residential, commercial and industrial customers 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 payment for the rights and privileges granted herein exceed 5.9 percent (5.9%) of such revenues for any monthly billing period of the Grantee. Section 6. If during the term of this franchise the Grantee enters into a franchise agreement with any other municipality located in Broward County, Florida, the terms of which provide for the payment of franchise fees by the Grantee at a rate greater than 6 percent of the Grantee's residential, commercial and industrial revenues, under the same terms and conditions as specified in Section 5 hereof, the Temp. Ord. #1964 May 6, 2002 Page 8 Grantee, upon written request of the Grantor, shall 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 hereof shall be no greater than that percentage which the Grantee has agreed to use as a basis for the calculation of payments to the other Broward County municipality, provided, however, that such new franchise agreement shall include benefits to the Grantee, in addition to all benefits provided herein, at least equal to those provided by its franchise agreement with the other Broward County municipality. Subject to all limitations, terms and conditions specified in the preceding sentence, the Grantor shall have the sole discretion to determine the percentage to be used in calculating monthly payments, and the Grantee shall have the sole discretion to determine those benefits to which it would be entitled, under any such new franchise agreement. Section 7. 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 service (herein called a "retail customer") or to any electrical 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 1 Temp. Ord. #1964 May 6, 2002 Page 9 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 shall 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 and/or 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 shall thereafter have 90 days to evaluate the offer and, if the Grantee agrees to meet or beat the other person's offer, 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 Grantor for a term no shorter than that offered by the other person. If the Grantee does not agree to meet or beat the other person's offer, all of the terms and conditions of this franchise shall remain in effect. 1-1 Temp. Ord. #1964 May 6, 2002 Page 10 Section 8. 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 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 60 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. The Grantor shall then have 60 days in which to correct or otherwise remedy the terms and conditions 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 agreement by delivering written notice to the Grantor's Clerk and termination shall be effective on the date of delivery of such notice. Section 9. 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 1 r Temp. Ord. #1964 May 6, 2002 Page 11 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 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 disadvantage is 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 the consequences of such action which resulted in the competitive disadvantage. The Grantor shall then have 90 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 agreement by delivering written notice to the Grantor's Clerk and termination shall take effect on the date of delivery of such notice. Section 10. Failure on the part of the Grantee to comply in any substantial respect with any of the provisions of this franchise shall be grounds for 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 1 Temp. Ord. #1964 May 6, 2002 Page 12 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 in the Grantor at its discretion to grant such additional time to the Grantee for compliance as necessities in the case require. Section 11. Failure on the part of the Grantor to comply in substantial respect with any of the provisions of this ordinance, including: (a) denying the Grantee use of 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 and entitle the Grantee to withhold all or part of the payments provided for in Section 5 hereof until such time as a use permit is issued or a court of competent jurisdiction has reached a final determination in the matter. Grantee will provide 30 days written notice of the breach to the Grantor's manager or mayor, said notice effective on the date faxed, electronically mailed or mailed, prior to withholding all or part of the payments provided for in Section 5 hereof. The Grantor recognizes and agrees that nothing in this franchise 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. 1.1 Temp. Ord. #1964 May 6, 2002 Page 13 1 Section 12. 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 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 accordance with this section shall not be conducted by any third party employed by the Grantor whose fee for conducting such audit is contingent on findings of the audit. Section 13. 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. 1 Temp. Ord. #1964 May 6, 2002 Page 14 Section 14. 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 15. Ordinance No. 76-57, passed and adopted January 12, 1977, Ordinance No. 0-91-22, passed and adopted May 22, 1991, and all other ordinances and parts of ordinances and all resolutions and parts of resolutions in conflict herewith, are hereby repealed. Section 16 If any clause, section, other part or application of this Ordinance is held by any court of competent jurisdiction to be unconstitutional or invalid, in part or application, it shall not affect the validity of the remaining portions or applications of this Ordinance. Section 17. As conditions precedent to the taking effect of this ordinance, (a) the Grantor shall have served and filed its Notice of Dismissal With Prejudice of its action and claims against Grantor in that certain cause styled City of Pompano Beach, et al. v. Florida Power & Light Company, In the Circuit Court of the 17tn Judicial Circuit in and for Broward County, Florida, Case No. 01-008883 (03), identical in all material respects to Exhibit "C" hereto, prior to May 29,,2002; (b) the Grantor shall have executed and delivered to Grantee a Release And Waiver Of All Claims identical in all material respects to Exhibit "D" attached hereto, prior to May 29, 2002; the Grantee shall have filed its acceptance hereof with the Grantor's Clerk 1 1 Temp. Ord. #1964 May 6, 2002 Page 15 identical in all material respects to Exhibit "E" attached hereto, on or before May 29, 2002. If all of the foregoing conditions precedent have been performed, the effective date of this ordinance shall be May 29, 2002. PASSED, FIRST READING this 8 day of May, 2002. PASSED, SECOND READING this22 day of May, 2002. ATTEST: MARION SWENSON, CMC CITY CLERK I HEREBY CERTIFY that I have approved this RESOLUTION as to form. CITY ATT 0 JAYO E SCHREIBER R RECORD OF COMMISSION VOTE: MAYOR SCHREIBER e DIST 1: V/M PORTNER A E DIST 2: COMM. MISHKIN A DIST 3: COMM. SULTANOF DIST 4: COMM. ROBERTSAe, Al Pruuosed by: C-4a7, C-ke-,� Temp. a ID t Introduced by:0� U gjct 77- 25964 CITY OF TAMARAC, FLORIDA ORDINANCE NO. '7(v �5�( Exhibit A Temp. Ord #1964 AN ORDINANCE GRANTING TO FLORIDA POWER 6 LIGHT COMPANY, ITS SUCCESSORS AND ASSIGNS AN ELECTRIC FRANCHISE, AND IMPOSING PROVISIONS AND CONDITIONS I :LATING 'niER1iT0,AND REPEALING ORDINANCE 64- 10 BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF TAMARAC, FLORIDA: SECTION 1: That there is hereby granted to Florida Power $ Light Company (herein called the "Grantee"), its successors T7 and assigns, the non-exc'usive right, privilege or franchise to construct, m:"intain :uul operate in, under, upon, over and across the present and future streets, alleys, bridges, easements and ;� other public places of the City of Tamarac, Florida, (herein calledco' the "Grantor") and its successors, in accordance with established practice with respect to electrical construction and maintenance, for the period of thirty years from the date of acceptance hereof, electric light and power facilities (including conduits, poles, wires and transmission lines, and, for its own use, telephone and telegraph lines) for the purpose of supplying electricity to Grantor, and its successors, and inhabitants thereof, and persons and corporations beyond the limits thereof. SECTION 2: As a condition precedent to the taking effect of th's grant, Grantee shall have filed its acceptance hereof with the Graitor's clerk within thirty (30) days hereof. SECTION 3: That the facilities shall be so located or relocated and so erected as to interfere as little as possible i with traffic over said streets, alleys, bridges and public places, and with reasonable egress from and ingress to abutting property. The location or relocation of all facilities shall be made under the supervision and with the approval of such representatives as the governing; body of Grantor may designate for the purpose, but not so as unrcasonahly to interfere with the proper operation of Grantee's facilities and service. That when any portion of a street is excrvated by Grantee in the location or relocation of any of its facilities, the portion of the street so excavated shall, within a reasonable time and us early as practicable after such excavation, he replaced by tyre Grantee at its expense and in as good condition as it was at the time of such excavation. SECTION 4: That Grantor shall in no way be liable or responsible for any accident or .l;unage that may occur in the construction, operation, or maintenance by Grantee of its facilities hereunder, and the acceptance of this ordinance shall be deemed an agreement on the part of the Grantee, to indemnify Grantor and hold it h;armless against any and all liability, loss, cost, damage or expense, which may accrue to Grantor by reason Of the neglect, default, or misconduct of Grantee in the con- struction, operation r maintenance of its facilities hereunder. SUCTION 5; That all rates and rules and regulations established by Grantee from time to time shall at all times be reasonable and Grantee's rates for electricity shall at all times he subject to such regulation as may be provided by law. SECTION ti: That no later than sixty days after the first anniversary date of this grant :rnd no later than sixty days after each succeeding; anniversary date of this grant, the grantee, its successors and assigns, shall have paid to the Grantor and its suc:essors an amount which added to the amount of all taxes as assessed, levies, or imposed (without regard to any discount for m r 0 --, early paymc,.t or any interest or penalty for late payment), licenses,' 00 and other impositions levied or imposed by the Grantor upon the C.O Grantee's electric property, business, or operations, and those of A Grantee's electric subs idi;rr'ies for the preceding tax year, will m GJ C.''t r.D i'J equal 6% of Grantee's revenues from the sale of electrical energy to residential, commercial and industrial customers within the corporate limits of the Grantor for the twelve fiscal months preceding the applicable anniversary date. SECTI N 7: Payment of the amount to be paid to Grantor by Grantee under the terms of Section 6 hereof shall be made in advance by estimated monthly installments commencing ninety days after the effective date of this grant. Each estimated monthly installment shall be calculated on the basis of 90% of Grantee's revenues (as defined in Section 6) for the monthly billing period ending sixty 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: As a further consideration of this franchise, said 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 9: That failure on the part of Grantee to comply in any substantial respecc with any of the provisions of this ordinance, shall be grounds for a forfeiture of this grant, but no such forfeiture shall take effect if the reasonableness or propriety thereof is protested by Grantee until a court of competent ,Jurisdii•t.ion (with right. of appeal in either party) shall have found that Grantee has failed to comply in substantial respect with any of the provisions of this franchise, and the Grantee shill have six (6) months after the final determination of the question, to make good the default before a forfeiture shall result with the right in Grantor at its discretion to grant such additional time to Grantee for compliance as necessities in the case require. SECTION 10: This ordinance shall take effect on the date upon which Grantee files its acceptance. "CTION 11: That if for any reason this Ordinance shall be held to be invalid it is the declared intent of the City Council that this Ordinance shall then be held to be inoperative and Ordinance #64-10 of the City of Tamarac shall be and remain in full force and effect. PASSED FIRST READING this 11 day of NOVEMBER, 1976. PASSED SECOND READING this 8th day of DECEMBER, 1976 PASSED AT RECONSIDERATION OF SECO READI G on the 12th,day of January 1977 QF SF Gi Mayor a.0 =ATT_E$ y 1. 'hI /• A C ERK I HEREBY CERTIFY that I have approved the corm and correctness of this Ordinance. ,l CITY AT ORh Y,S W I L ' ,hi GEIIMILL i RECORD OF COUHCI VOrE MAYOR W. FALCK /-t cx � VIM H. MASSARO rim IC .� C/►�' d. KELCH 4%, 0. TUCKER C/hf hi. WEINBERGER m RECORD OF COUNCIL VOTE n MAYOR W. FALCK �^ l m VINI H. MASSARO._ _�� C(W M. KELCH L to _ C(M 0. TUCKER c2� h C(M IA. WEINBERGER at second and final reading dated January 12, 1977 1 ACCEPTANCE OF ELECTRIC FRANCHISE ORDINANCE NO. 76-57 BY FLORIDA POWER & LIGHT COMPANY Dated: January 26, 1977 City of Tamarac Tamarac, Florida Florida Power & Light Company does hereby accept the electric franchise in the City of Tamarac, Florida, granted by Ordinance No. 76--57, being: "AN ORDINANCE GRANTING TO FLORIDA POWER & LIGHT COMPANY, ITS SUCCESSORS AND ASSIGNS AN ELECTRIC FRANCHISE, AND IMPOSING PROVISIONS AND CONDITIONS RELATING THERETO." which was passed and adopted on January 12, 1977. This instrument is filed with the City Clerk of the City of Tamarac,. Florida, in accordance with the provisions of Section 2 of said Ordinance. FLORIDA POWER & LIGHT COMPANY Fay Se for Vice Wres Went.. Al �•' � ATTEST: M "Scrta I HEREBY ACY.NOWLEDGE receipt of the above Acceptance of Electric Franchise Ordinance No. 76-57 by Florida Power & Light Company, an-i certify that I have filed the same for record in the permanent files and records of the City of Tamarac, Florida, on this day of z-,,.4� arc. 1977. Ass.t City Clerk,of.!the Cit of Tamarac,tt,F1orr da Xn M -rry 0 -r% N'. C E R T I F I C A T E In connection with Ordinance No. 76-57, being AN ORDINANCE GRANTING TO F?.-�RIDA POWER & LIGHT COMPANY, ITS SUCCESSORS AND ASSIGNS, AN ELECTRIC FRANCHISE, AND IMPOSING PROVISIONS AND CONDI- TIONS RELATING THERETO, I hereby certify as follows: a. The City Council met on January 12, 1977 to read and act on franchise to Florida Power & Light Company. Those present were: Walter W. F'alc.k, Mayor Helen Massaro, Vice Mayor Marjorie Kelch, Councilwoman Oscar L. Tucker, Councilman Morton Weinberger, Councilman The Ordinance had been read on November 11, 1976 for the first time. It was agr•:ed to read it for the second time on January 12, 1977. Tha Ordinance was read and adopted as Ordinance No. 76-57. b. On January 5, 1977 notice of porposed enactment of 1+,1 Ordinance No. 76-57 was published in a newspaper of general circu- lation in the City of Tamarac and the Ordinance No. 76-57 as proposed and adopted was maintained for inspection by the public at the Office of the City Clerk, Tamarac City Hall. C. Upon its final passage on January 12, 1977, Ordinance No. 76-57 was signed by the Mayor and City Clerk of the City of Tamarac and recorded in a book kept for that purpose, and the respective votes of each member of the City Council present were recorded in the record of the meeting. This day of 1 nC, 1 ,c 1977. /> x� o y Ass't City C 6rk of the Cit of n, Tamarac, Florida Cn cc CD ��GY(RP,1y F CIn^inl R`-,pDS &kr ADHL'SrTLhUgwA C County Y m Avwinisr•,, M W ti' s CITY OF TALMARAC, FLORIDA ORDINANCE # AN ORDINANCE DECLARING THE INTENTION OF THE CITY C TAMARAC TO ANNEX CERTAIN LANDS CON- TIGUO1. TO THE PRESENT BOUNDARIES THEREOF; REPEAL.NG ALL ORDINANCES IN CONFLICT HERE- WITH; PROVIDING A SAVINGS CLAUSE. WHEREAS, the hereinafter described tract of land is con- tiguous to the present boundaries of the City of Tamarac, and WHEREAS, said tract of land contains less than ten regis- tered voters, and WHEREAS, the owner of said tract of land has petitioned the City of Tamarac to integrate said lands into said City, and WHEREAS, the City of Tamarac is empowered to annex said lands. NOW, THEREFORE, BE ?T ORDAINED BY THE COUNCIL OF THE City of Tamarac, Flcrida: SECTION 1: The Council hereby declares its intention to LJ annex to the City, upon the expiration of thirty (30) days from the approval of this Ordinance, those lands legally described as follows: All that part of tract 11 of FORT LAUDERDALE TRUCK .'ARMS SUBDIVISION of Section 3, Township 49 South, Range 41 East, as recorded in Plat Book 4, Page 31, of the Public Records of Broward County, Florida. Containing 39.986 acres. SECTION 2: That the petitioner as aforementioned, shall provide to the City the necessary funds for the required publica- tion of this Ordinance prior to the filing of the required publication. SECTION 3: All Ordinances or parts of Ordinances in con- flict herewith ari hereby repealed to the extent of such conflict. SECTION 4: Should any section or provision of this Ordinance or any portion thereof, or any paragraphs, sentence -r ACCEPTANCE OF ELECTRIC FRANCHISE - ORDINANCE NO. 4Z—�-7_. BY FLORIDA POI -ER & LIGHT CO:.I ANY Dated: January 26, 1977 City of Tamarac Tamarac, Florida a Florida Power & Light Company does hereby accept the electric franchise in the City of Tamarac, Florida, granted by Ordinance No. 76-57, being: "AN ORDINANCE GRANTING TO FLORICA POWER & LIGHT COMPANY, ITS SUCCESSORS AND A.S''=G`_.S AN FLECTRIC FRANCHISE, AND IMPOSING PROVISItiIS AND CONDITIONS RELATING THERETO." which was, passed and adopted on January 12, 1977. This instrument is filed with the City Clerk of the City of Tamarac, Florida, in accordance with the provisions of Section 2 of said Ordinance. FLORIDA POWER & LIGHT C014PANY By WgoL'iur\t11� Senior Vice �Pr `i ent. ATTEST: ,' s Secrete y I HEREBY ACKNOWLEDGE receipt of the above Acceptance of Electric Franchise Ordinance No. 76-57 by Florida Power & Light Company, and certify that I have filed the same for record in the permanent files and records of the City of Tamarac, Florida, on this day of , 1977. L7 LlyU Ass't City Clerk of the Ci of Tamarac, Florida ...- - 'IL CITY OF POMPANO DLACH, FLORIDA, CrrY OF COCONUT Cox, FLORMA, CITY OF DANIA RZACH, MORIDA, CITY OF MARGATE. >✓ LON DA, and CITY OF 'TAMARAC, FLORMA, Plaintiffs, V. .Sit> U?1:5 r ray r. et Exhibit B Temp. Ord. ik1964 IN THE CIRCUIT COURT OF I�HE 17TH JUDICIAL CIRCUIT IN ND FOR BROWARD . COU�,TY, FLORMA CASE NO.: FLORIDA POWER & LIGHT COMPANY, A Florida corpmatinn, Defendant. Plaintiffs, CITY OF POMPANO BEACH, FLORIDA, C� CREJ -c. FLORIDA, CrrY OF DAN A BEACH. FLORm k, crlY bV-,, WOES rUT ..I ,��EI _T FLOR10A, and CITY OF TAMARAC, FLORIDA. by undersigned cming4* lain against defendant, FLORIDA POWER & LIGHT COMPANY. a Florida avrpora64L. as [ullowa: Jqdwcdon, PaVmqg I. This is an action far declaratory judgmcpt and uWust cmichmeut,;, Over whicb this Cuun has exclusive subject matter jurisdiction. Z. PlainUM, CITY f POMPANO BEACH, FLORIDA ("Pom,',wd Bewh"), CITY OF COCONUT CREEK. FLORIDA ("Coconut Crock"), crr' � OF DANIA BEACH, FLORIDA, formerly known as Dania, Florida ("Dania B wh'j, (,ITY JAN-25-2002 16:55 CMB CITY MANAGERS OFFICE 305 673 7782 P.07 OF MARGATE, FLORIDA (••Margate"), and CITY OF TAMARAC, FLOR"WA ("Tarnarac'l, are municipaiities duly chartered and incorporated. undo Florida law -and situated in Broward County, Florida. Plaintiffs will collectively be teferred to ai. the 1. Dci'endant FLORMA PO WSR & L10.HT COMPANY ("FPL' is a Florida enrpcwation, that does substantial business in, uwns real property located ice;; and maintains corpurate nffiees in Broward County. Florida. 4. FPL supplies electricity throughout' cash of the Cities pwsua*;t to franchises Rranted to FPL by the Cities, as more particularly act forth boluw. _....... 5. FPL, as the owner of reel and prr-monal property in on& of the COz, is legally obligated under the Florida Constitution and Florida law to pay cash of the !,:hits those real and personal property taxes levied can FPL by the Cities each year. 6. This cause of action occurred and continues to occur in eaab of tha � :itioa in Broward County. Florida. 7. venue is proper in Broward County, Florida, pursuant to, Chapt�' 47, Florida Suatutes. !quilftfiggg Fre��,pt Ud Aulkgr III for Suit i B. The guvcrnirlg bodies of each of the Cities authorised the filing of to 6*60n. 9. All applicable conditions precedent to the bringing of this action hnvi either been satisfied, parforwccl or waived. r CQM r! n c T 10. The Cities rcpcat and realiege pnragraphs 1 through 9 as if act for*, at length herein, 11. This is an action for a declaratory judgment rURsuant to ChWer:';,,86, Florids Statutes, and for such further relief that the Court deems just and proper. T e cas) Contmem 12, A significant legal cnnUZVeTsy has arisen between the Cities and +1,,•PT . Mating to each of the Cities' electric franchise ordirmees (the "Franchise Ordinances -,)- 13. The Frwwhlse brdinanocs each grant to FPL thirty (30) yea claillic servicc franchises in each of then Cities, and also pwportedly grant, to FPL indirect+ ,real and persotsal property tax exemptions. ' 14. The Citiaa believe that such indirect property tax exemptions'; are impermissible under• the Florida Constitution and applicable stale law, an& are consequently uItM,virea• invalid and void. FM disagmcs. 15. As a dimct result of the foregoing, • aad as mute particularly sat t''arth below, the Cities are in, doubt as to their rights under the. Frvnchisc Ordlnaives. Specifically, the Cities ate in dnui t as to the validity and anforccability of tlic pnp�-Iwd property tax exemptions contained in Scction 6 of each of the Fra nahiac Ordinanc4, Ilia present effect of which is to allow FPL to offset hundreds of thousands of dollena par yc= in property taxes against the six percent (60A) fwichise fees. thereby adversely imps ling the financial position of the Cities and consequently all of their taxpayers. 3 JRN-25-2002 16:56 CMB CITY MANAGERS OFFICE 305 673 7792 P.09 -rhq FI-0,11013LIC OrdIVAILM 16. On Jute 21, 1977, the Pornpcc Scach City CoMm%sicm ent,'Aed Ordinances No. 77.50 that granted to FPL an electric tranc:hise for a zhiriy (30) year t ,TM r to deliver electricity throughout Ponmpaao Beach's boundaries on the terms ,,-'and conditions stated therein. A trot copy of the Pompano Dcach Franchise Ordinwule is attached hereto as Fxhihir "A." Shortly thereafter, FPL conseawd to the term Cc the Pompano Beach Franchise Ordinance. 17. on June 23, 1977. the Coconut Crock City Comaaimiou cw cted Orrdinanoc No. 300.03 that granted to FPL an electric franchise for a thirty (30) year Mn, So deliver electricity throughout Cecanut Creek's boundariesg on the terms and tort&ions stated therein. The Coconut Creck-Franchise Ordinance ie in all material avwe " the same as the Pompano Beach Franchise Ordinance, attached herein As Exhibit! "A-" Shortly &=tafter, FPL consented to the terms of the Coconut Creek Franchim Ordiri Lnce- 1 B. On June 13. 1978, the ❑snie City Commission enacted Oxdiazince Nq' , 173 that graawd to FPL an electric franchise for a thirty (30) year term, to (191NOr ele4'ricity throughout Daniri s boundaries ore the terms and conditions stated thereim The 11)wa Franchise Chdin=oc is iu all material aspects the eaime as the POMP= 13"a Fv4 chise Ordinance, att"hcd be= as Exhibit "A." Shortly thereafter. FPL consented to thy; berms of the Dapia Franchise WiYsnrsac. 19. On August 2, 1978, the Margate Ctry Conunissian enacted Qrdi=an ,e No. 7A-73 tlit granted to FPL an cicabic fiwj :l&1= LbT a 111trzy (30) YeM teen, to C CEVCr electricity throughout Margate's boundaries on the items and conditions stated tl�.ereitr. 4 JAN-25-2002 16:56 CMB CITY MANAGERS OFFICE 305 673 7782 P.10 The Margate Franchise Ordinance is in all material aspccls [he same as the Pomp.,ao Beach Ftanchke Ordi=ce, anachcd hereto as Exhibit "A." Shurdy tbereafter, tPL consented tn the trams of the Margate Franchise Ordinance. 20_ On January 12, 1477, the Tamarac City Commission esctWC(l Ordintwc No. 76-57 that granted to FPT. an electric french ise for a thirty (30) year terw, w deliver electricity throughout Tamarnc's boundaries on the terms and conditions stated that is The Tamarac Franchise Ordinance is in A11 materisl aspects the some ea ,thc Poru4,uto Beach Franchise Ordinance, attached heretn as Exhibit "A." Shardy thcruafter, 1TL consented to the terms of the Tamaretc Franchise Ordinance. l a Flranebise Fee&ad he 1<tdgreQe� ireet �'o�r acem g 21-­ AS consideration for the right to use the Cities' strcetg arul public rightp •of way and as consideration for the thirty-year fr=chim, Section 6 of each of the Franc -:use Ordinances provides, interr all that FPL shall pay to each of the Cities an ark, nml fi+wc hise fee of six percent (69/6) of FPL's revenues from the sale of electrical enerk. v to residential, wmmercial, and industrial custotuas within the corporate limits of CR44 of Am Cities_ Huwcver, Section 6 of each of the Franchise Ordinances also purporodly allows FPL to offset against this JaMehiSe fee an aatiovnt equal to all taxes asses ' J or IvAcd on FPL'* electric proptrty, business or operations in the respective city. 22. Section 6 prvvidcs, in LULM11; No Laser than sixty (60) days aft= the first annivwmny date of this g,ra 4 and no longer, then abay (60) days afkcr rub succeeding aanlnivetsaty The "Grantx" in the Franchise Ordinames is FPL and the "Grantor" is eoch of the respective Cities, S JAN-25-2002 16:57 CMB CITY MANAGERS OFFICE 305 6?3 ??S2 P.11 data of this grant, Crentec, its auc4-'t:ssot'8. tnad assigns, shall have paid to the GraMor and tM successors an amount which 11040d c -At �esas asss ' le_ _ or ' os wi ,yt e W to =X discount W int a lisgwogad offigr j ng�,itiyw levied or imygmd by Sk '& electric nm=W, lusinal. M piucIahons Those —2f ,QMte0!A 0120160 vhsidiari then g tax vaar, will equal six percent of [=tees revenuer from the anla of electrical energy to residential, commercial Sud industrial customers within the corporate limits of the Grriotor for the twelve (12) fiscal tnnnths preceding the applicable anniversary date. (Lmphssis added). The underlined langunge, which creates The improper indirect tea exemption, rWill hereafter be referred to as the "Tax Exemption Laagnge" -. . �+P�'s-�ae��pf�he.l_I�xaaer�dt_rect Tex Farem�ti�1 ----- .- - 23. Relying upon tche Tax Exemption Language, )FPL cleitne, and has ola" ,ked, that it has the absolute legal right to "offset" wmually Al ed valorem real property t xcs and persona] property tuxes levied on FPL by each of 1he Cities frOZM the siX pent ("S%) franchise fee, 74. In fact, acting pursuant to its purportol "legal rights" under Me FrMa , Obe ordinances, each apd every year since each of the Franchise Ordinonces was adq,." FPL has offset pmpe%V taxes levied on FPL by each of the Chins t}om iw annnn>il. 6% franchise fee. No other taxpayer in away of the Citiao snjoya sucb an iaWcvc4dolls r for doper prop" tax exemption. 6 JRN---25-2002 16:57 CMB CITY MANAGERS OFFICE 305 673 7782 P.12 25. MorcovcA-, each and every year since each of the Franebisa Ordiwmces ,:eras adopted, PPL has also taker, advaartagc of the discounts for early payment of assess4l ad valorem tax" as provided by Section 197-162, Florida Statutm Accordingly, �,'?L nffsets the entire amount of tnxca actually levied on it by each of the Utes, bather � han the aahial arnount of taxes pjaid by FPL, from The six'perccnt (6%) franchise fee owe,', by FPL to each City under &a Franchise Ordinancca. 26. FPT. is recovering every dollar, and more, of the property taxes it pa4i to cacti of the Cities each and cvc°ry year. the rwult of which is to irmquitable, dispa� ate, onerous and unconscinnsble annual loos of the sevenura to the Cities, whicJ3, in nun, #4%1 t be absorbed by all of the other property taxpayc= in the Cities: 27. At the time the Cities approved the Franchise Urdinanoep, and at all o her times material hereto, the Cities were not autboAzcd by the Florida Conmitmion or any other law to provide a tax exemption .to FPL. Article W. Section 2 of the Flc�,rida Constitution provides in relevant part, that "all ad valorem taxation shall be at a nails, arm rate within each taxing unit..." Article VZ Section 3, provides for certain lir�,ited property. ux exemptions, none of which apply here. Article M Sectim 9, auth ,Lzes cities aiul usher governmental entities to levy ad valorem taxes but AM = audwrizo,'aay property tout exemptions. 26. In udditloa, Section 196.UU1, Florida Statutes, provides in relevant' part Ugiless expressly exempted from taxation, . the following property shall be subject to taxation in, the 7 J HN • a manner provided by law: (1) All real and personal property in this state and all pmonAl property belonging to persons residing in this static... Chapter 196 Contains numerous exemptions, none of which apply to FPL'a real I'�nd Personal property. This was true under Florida law at the time the Franchise Ordiaa •-eeas wem adopted and it continues to be uut toddy. 29. The subject porvon of Section 6 of the Franchise Ordinances provides ; ` L with a =L-uff against its franchise tee equal to all taxes paid by FPL, Florida law accr]cd that suvh a set-off constitutes an indirect tax ixeption, and is not permitted ur;, ims authorized by the Florida Constitution. Thus, the Tax Exemption Language eoutainil in s Section..( is mLmLyt ha raid void. The _- 30. The Franchim Caxli,ia.uct* contain general severance provisions. ,For axarnple., section 10 of the pompano rkacla Franchise Ordinance providers: If any section or provision of elute ordinance shall be held invalid, such bolding 'slWl not affect or invalidate any other seetion or provision which is not of itself invalid 31. Thus, the parties Agreed amd intended that, if this types of problem I',MSC and one section were declared invalid. All remaining portions of they orcihuu ere N41')Uld remain in effect. Thus, the best way to matr3r the partisa' interest i, to =Xuiry ' the severability provision, reforming the FranebNe Ordinances to require the payment, 'UC a franchise fee of 601, with no improper offset, 9 32. As a result of this provision, if the Cowl declares the Tex Exemption Language to lac uJtra vices and invalid, it should also provide that the ranainint po7;ons of Section 6 and the rernaUng sections of the Franchise Ordinances remain in full krrcc and cffccz. This is what the parties agreed would happen if any words or phrases;rcre declared invalid. FPL's Conrinued Insistence to Takx Advanto a of the 11n T92 Ezemp.9091 33. Semc of the Cities have anemptied, in good fiitk 'to obtain FPL's eoq;ent to ne-ue use of the improper talc c;ctwptiun and to amend the Fmnchisc Ordinances. ;"TL has r=fWWd.' 34. Arzordingly, unless the Court grants the declatutoty relief sought by this action,,, FPL will continue to be the cr►ly taxpayer in caeh of the Cities to c4oy whey ' the Cities believe to be an i11r.F.l, ultrarires. andvoid Indirect renl and personal praperl�;. tax exemption, WHERrWORE. the Chieq respectfAy demand judlpmcnz undue• Chap 86, Florida Statutm, declaring that; (a) the Tax Exemption Language contA ned in Section 6 of the ry ,hdse OrUnances constitutes an indirect tax exemption; (b) each of the Cities lacked and lacks ,the legal power to contract #,way, directly or indirectly, their ad va]21MM taxing power, P: .+� , �`• ccrr�c 1P • �4 �.i•irs �.1 i r i•ir-irvr-iu�rc� urr 1 �..t .SI�� b (.5 ((tip i' (e� the Tax Exemption Language contained ut . Secdofi 6 of each ; pf the Franchise Ordinances ix therefore void, ultras and umenforccuble undex the � londa Constitution and applicable Florida law, (d) because of the RQverability provision , the rcmaiaing purtions of so tion 6 (other than the Tax Exem,ptinrn T-eaguagc) and all other Sections of the Friichisc Ordinances remain in full force and e$eet, and (c) further lmtirlg to the Cities cosh and any other rcliaf the Court dci";ms to be just and proper under the circumstances. COUN, n: UNjusT F-I jIM 'F Mgt T/RRSTITUTION 35.- The Cities repeat and reallega parapapha 1 through 9, 12 through ,4 and 16 through 34, as if set forth at fij hcrcin. 36. This is RD action for unjust curichmcnt/restitution to remover alt-r-Unu improperly withheld by FPS, from the Cities under the Wtm A and VoiO Tax E•xcruNuori Language, and for such, further relief that the Court decors jug Ind props t. 37. EFL, and all tither owners of real and personal property in each if the Citica, is legally obligated to pay to the Cities all real and personal property taxest.rvied by each of the Citica c2wh year. 39. F,ach year, FPL has improperly Offset a portion of the real and P4,6onal properly takes that it owed to tu:h of the Cities, relying on the TaX Exemption Lath; 'qUL9e contained in Section 6 of the Franchise Ordinances. 10 i 39. FPL has been unjustly enriched at the expense of es►ch of the Citira :,a amount equal to the full amount it has offset in taxes as a result of the Tax Exempt -ill Language. FPL's enrichment has been at the direct expense of each of the Cities. WHEREFORE, the Cities respectfully demand judgment againxt defendant FOL in an amount to be determined at trial, and further granting to each of the Cities its Casts incurred in this action and any other relief the Court deem to be just anti proper under ilhe circumstances. DATED: May 15, 2001 Respectfully submitted. WEISS SEROTA HELFMAN .PASTORMA &L(3UMF-S, P.A. Cou=l for Plaintiffs 3107 Stirling Road, Sine 300 Port Lauderdale, FL 33312 Telephone: (954) 763.42.42 Telecopier. (954) 764-7770 BY: Alan Cole ida Bar No.: 767573 11 T f"1T(�I O •1 � MAY-07-2002 TUE 03:49 PM WEISS SEROTA HELFMAN FAX NO. 954 764 7770 P. 02/10 Exhibit C Temp. Ord. #1964 1N THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT, IN AND FOR BROWARD COUNTY, FLORIDA CASE NO.: 01-008883 (03) CITY Or POMPANO BEACH, FLORIDA, CITY OF COCONUT CREEK, FLORTDA, CITY OF DANIA BEACH, FLORIDA, CITY OF MARGATE, FLORIDA, and CITY OF TAMARAC, FLORIDA, Plaintiffs, rA, FLORIDA POWER. & LIGHT COMPANY, a Florida corporation, Defendant. PLAINTIFF, CITY OF TAMARAC'S NOTICE QE VULUNIARY DISMISSAL WITH PREJUDICE Plaintiff, City of Tamarac, Florida, pursuant to Florida Rule of Civil Procedure I.420(a)(1), hereby voluntarily dismisses with prejudice the entirety of its action and all claims it has asserted herein against Defendant, Florida Power be Light Company.' WEISS SEROTA HELFMAN PASTO.RIZA & GURDES, P.A. Counsel for Plaintiffs 3107 Stirling Road, Suite 300 Fort Lauderdale, FL 33312 Telephone: (954) 763-4242 Telecopier- (954) 764-7770 M Jamie Alan Cole Florida Bar No.: 767573 ' This notice voluntarily dismisses with prejudice the entire action and all claims filed herein by the City of Tamarac, but does not affect the actions and claims filed herein by the other plaintiffs in this case. MAY-07-2002 TUE 03:49 PM WEISS SEROTA HELFMAN FAX NO. 954 764 7770 P. 03/10 CASE NO,: 01-008883 (03) i HEREBY CERTIFY that a copy of the foregoing was served by hand delivery this day of May, 2002, on Ron A. Adams, Esq., Steel Hector & Davis, Attorneys for FPL, 200 South Biscayne Blvd., Miami, FL, 33131-2398. 2 Jamie Alan Cole Exhibit D Temp. Ord. #1964 RELEASE AND WAIVER OF ALL CLAIMS KNOW ALL PERSONS BY THESE PRESENTS: That for value received and other good and valuable considerations, the receipt and sufficiency of which are hereby acknowledged, the CITY OF TAMARAC ("CITY"), a Florida municipal corporation, does hereby, for itself and its agencies, subdivisions, departments, divisions, representatives, successors, assigns, officers, officials, agents and employees, their heirs, executors, administrators, personal representatives, successors and assigns, and any person or entity claiming by, through or for or succeeding to the right of any of the foregoing (hereinafter sometimes referred to as the "Releasor"), release, remise, acquit, satisfy, waive and forever discharge FLORIDA POWER & LIGHT COMPANY ("FPL"), a Florida corporation, its parents, subsidiaries, affiliates, directors, employees, officers, stockholders, agents, insurers, reinsurers, sureties, attorneys, successors and assigns, the heirs, executors, administrators, personal representatives, successors and assigns of any of the foregoing, and any person or entity acting for, by or through any of the foregoing (hereinafter referred to collectively as "Releasees") of and from any and all manner of actions, causes of action, suits, debts, costs, attorney's fees, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, controversies, loss of services, obligations, liabilities, agreements, promises, variances, disputes, torts, trespasses, damages, property damage, losses, liens, judgments, executions, complaints, claims, counterclaims, cross -claims, injunctive relief and all demands whatsoever, in law or in equity, whether known or unknown, whether liquidated, fixed or contingent, whether mature or not, whether disputed or undisputed, whether foreseen or unforeseen, whether foreseeable or not, and whether discoverable or not (hereinafter referred to collectively as "All Claims"), which Releasor ever had, now has or hereafter can, may or shall have, or might in the future have or claim to have, directly or indirectly, against Releasees: (1) on account of, in connection with or in any way arising out of or relating to that certain franchise agreement between FPL and the CITY, the terms of which are set forth in City of Tamarac Ordinance No. 0-91-22, passed and adopted May 22, 1991 ("Current Franchise Agreement"), a true copy of which is attached hereto as Exhibit "A" and incorporated herein by reference, including but not limited to All Claims relating in any way to the amount of franchise fees payable by FPL to the CITY under the Current Franchise Agreement, including without limitation All Claims relating to the amounts and revenues used to calculate and pay such franchise fees, including but not limited to All Claims that were or could have been asserted in that certain cause styled City of Pompano Beach, et al. v. Florida Power & Light Company_, in the 17th Judicial Circuit in and for Broward County, Florida, Case No. 01-008883 (03) (such ,cause being hereinafter referred to as the "Lawsuit"); provided, however, that the claims released end waived under this subsection (1) do not include any claim CITY may have against FPL under Section 4 of the Current Franchise Agreement that accrued on or before the date of this Release and Waiver of All Claims; and (2) All Claims relating in any way to the method of calculating the franchise fees payable by FPL to the CITY under the terms of the new franchise agreement agreed to by and between FPL and the CITY in consideration of the settlement of the Lawsuit, a copy of which is attached hereto as Exhibit "B" ("New Franchise Agreement"), including but not limited to All Claims relating to which revenues are used to calculate the franchise fee under Section 5 of the New Franchise Agreement; provided, however, that the claims released and waived under this subsection (2) do not include any claim that could not possibly have accrued until after the New Franchise Agreement goes into effect, such as a claim that the agreed upon method for calculating the franchise fee has not been followed or that the amount of the franchise fee has been calculated incorrectly under the agreed upon method. The undersigned represents and warrants that no claim which the Releasor has nor might have had against Releasees has been assigned or transferred to any other person or entity, and, to the maximum extent permitted by law, agrees to indemnify Releasees and hold Releasees harmless from any and all liability or expense resulting from the assignment or transfer of any such claims. The Releasor acknowledges and agrees that this release is given for the compromise of doubtful and disputed claims, that the payment made is not to be construed as an admission against interest or admission of liability on the part of Releasees as to any claim, demand, controversy, dispute, defense, cause of action, counterclaim, matter or thing alleged in the Lawsuit or mentioned herein and compromised and settled hereby, and that Releasees deny liability therefor and intend merely to avoid the costs of litigation. The Releasor acknowledges that it has read this Release And Waiver of All Claims and knows its contents, that it has had the advice of counsel as to its meaning and intent, that it is executing this Release and Waiver of All Claims freely and voluntarily for the purposes expressed herein, that no promise, inducement or agreement not expressed herein has been made to it, and that the terms of this Release and Waiver of All Claims are contractual and not a mere recital. If any provision of this Release and Waiver of All Claims or the application thereof to any circumstance is void, invalid or unenforceable for any reason, the remainder hereof, or the application of such provision to circumstances other than those to which it is held void, invalid or unenforceable, shall not be affected thereby but shall remain in full force and effect, and each provision hereof shall be valid and enforced to the fullest and broadest extent permitted by law. IN WITNESS WHEREOF, the CITY OF TAMARAC has caused this Release and Waiver of All Claims to be executed in its name and its seal to be affixed, by its proper and fully authorized representative, this �� day of May, 2002. ATTEST: City Clerk APPROVED AS TO FORM AND CITY OF TAMARAC, a Florida Municipal corporation JEF �LMIL LER City Manager (SEAL) STATE OF FLORIDA COUNTY OF BROWARD I HEREBY CERTIFY that on this date, before me, an officer duly authorized in this State and County to take acknowledgments, personally appeared JEFFREY L. MILLER, City Manager of the CITY OF TAMARAC, a Florida municipal corporation, named in the foregoing Release and Waiver of All Claims, who is personally known to me or who produced the following as identification and that he acknowledged executing the foregoing Release and Waiver of All Claims freely and voluntarily in the presence of the City Clerk and City Attorney under authority duly vested in him by the CITY OF TAMARAC and that the seal affixed is the true seal of the CITY OF WEISE"'k Me WITNESS my hand and official seal in the County and State last aforementioned, this day of May, 2002. Commission No.: (Signature) MAIZI�C.VA/ �ARP�Hr6,�_ (Print Name) My Commission Expires: Notary Public, State of Florida , Marilyn Carpenter ' ? °�F A - Cam an # DD052873 y- Z Expires Oct I, 2M :, of Bonded Thrn Atlantic Bonding Co., Inc. 1' 01/16/01 15:05 FAX 954 724 1370 TAMARAC CITY ATTY'S OFF. Temp. Ord. 01546 CITY OF TAMARAC. FLORIDA ORDINANCE NO. 0-91---gg-- AN ORDINANCE OF THE CITY OF TAMARAC, FLORIDA, AMENDING ORDINANCE'16-57 ENTITLED, k 'AN ORDINANCE GRANTING TO FLORIDA POWER A J LIGHT CONPANY, ITS SUCCESSORS AND ASSIGNS AN ELECTRIC FRANCHISE, AND IMPOSING PROVISIONS AND CONDITIONS RELATING THERETO AND REPEALING ORDINANCE 64-10' ARID PROVIDING A SEVERAHILITY CLAUSE) A REPEALER PROVISION i. AND-AN-EFFEeTIVE -DATE r--- - - WHEREAS, pursuant to Florida Statute&, Chapter 166, the City's Home Rule Powers, and the City's Charter, an January 12, 1977, the City of Tamarac purportedly enacted Ordinance 76-57 granting to Florida Power and Light Company, its successors and assigns (•TPL"), an electric franchise to deliver electricity throughout the City's boundaries on the terms stated therein, a copy of which is attached hereto as Exhibit "A" (the 1976 Electric Franchise ordinance')r and WHEREAS, in 1977 the 1976 Electric Franchise Ordinance was purportedly enacted subject to the powers and rights retained by the City under its Home Rule Powers, and the City Charter, ands - WHEREAS, pursuant to its Home Rule Powers and the City's Charter, the Council has the authority and' reserved its right to revise. amend, alter or repeal franchise ordinances when the City Council determines that to do so will be conducive to the safety, welfare and accommodation of the publics and WHEREAS, based upon the advice of the City Attorney, City Manager and Director of Finance, the City Council finds that the 1976 Electric Franchise ordinance, insofar as it purports to allow F'PL to deduct annually all ad valorem real property and personal, property taxes owed by FPL to the City from the franchise fees owed by FPL to the City, as currently stated in Section 6 of the 1976 Electric Franchise ordinance, constitutes an unenforceable and invalid ultra wires real property and personal property tax exemption which was not authorized in 1976 and Jr. not currently authorized by the Florida Constitution or State laws and WHEREAS, said indirect real property and personal EXHIBIT A 12007 is Oa1/16/O1 15:06 FAX 954 724 1370 TAMARAC CITY ATry'S OFF. a 008 property tax exemption, as currently stated in Section 6 of the 1976 Electric Franchise Ordinance, also gllows FPL to annually offset against franchise fees FPL owes to the City those ad valor real property and personal property taxes levied on FPL by the City to repay the City's outstanding general obligation bonds, and said exemption also allows FPL to annually offset against franchise fees FPL owes to the City those ad vat-erem real property and personal property taxes levied an FPL by the City "without regard to any discount for early payment'; neither of which actions were authorised by Florida law in 1976 and neither of which are authorized currently by Florida law, and neither of which benefits are enjoyed by any taxpayer in the City other than FPL; and WHEREAS, in order to legislatively cure certain legal defects in the 2976 Electric Franchise Ordinance, and in order to exhaust the City's own administrative and legisla- tive remedies, the City attorney is recommending that the City Council, as a first step in the process of curing certain legal defects contained in Section 6 of the 1976 Electric Franchise Ordinance, consider enactment of an amendment, as set forth below, to the 1976' Electric Franchise Ordinances and HHEREAS,.the City Council agrees with the recommendation and advice of the City Attorney, City Manager and Director of Finance and finds that the proposed amendment to the 1976 Electric Franchise ordinance is necessary and proper in order to protect the safety, welfare and accommodation of the public and will serve to legislatively cure certain of the legal defects in Section 6 of the 1976 Electric Franchise Ordinance, and will thereby serve the best interests of the public by eliminating the onerous and unconscionable effect on all of the other resident taxpayers of the City caused by the indirect ad -valorem real property and personal property tax exemption enjoyed by only FPL; and WHEREAS, since 1976, FPL's property and facilities located in the City have expanded and are expected to con - '1/16/01 15:06 FAX 954 724 1370 TANARAC CITY ATIV S OFF. IM 0o9 1 tine to expand, thus, compounding the onerous burden placed upon the City's resident taxpayers as a result pf the indirect ad --valorem real property and personal property tax exemption enjoyed only by FPL under Section 6 of the 1976 Electric Franchise Ordinances and WHEREAS, the City Council finds that the enactment of the proposed a.mandment: to the 1976 Electric Franchise Ordin- ance will only serve to cure the legal defects contained in Section 6 thereof and accordingly, will not create an undue or unreasonable hardship on FPLI and WHEREAS, the City Council finds that the proposed amend- ment to the 1976 Electric Franchise Ordinance has been duly noticed and advertised in accordance with applicable r1oxida laws and that the City Council has conducted open public hearings on the proposed amendment to the 1976 Electric Franchise Ordinance in accordance with applicable Florida law. NOW, THEREFORE, HE IT ORDAINED 9Y THE CITY COUNCIL OF THE CITY OF TAMARAC, FLORIDAS SECPION•1 1 That the preamble set forth above is true and -correct and is hereby incorporated in its entirety as the legislative intent of the City Council and is hereby made a part of this Ordinance. SECTION-2 : Section 6 of the 1976 Electric Franchise Ordinance is amended to read as followst 'That not later than sixty days after the first anniversary date of this grant and no later than sixty 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 e++-taxes-as-assessed=--3evied;-er-tmpased-{rith6Vt regard--te-any--d*seeunt-far--early-payment--er-any fnteresl--or-pene#ty-for-*ate-psyaentf , licenses, and other impositions levied or imposed, other -than ad valorem real -and -personal _ re erC •--taxes ev e or im ose , y the Grantor upon the Grantee'6 electric 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 twelve fiscal months preceding the applicable anniversary date,• SECTION 3 s If any word, phrase, clause, subsection or section of this ordinance is for any reason held unconstitu- ' il/16/01 15:07 FAX 954 724 1370 TAMARAC CITY ATI'Y'S OFF. Cj 010 tional or invalid, the invalidity thereof shall net sffact the validity of any remaining portions of this ordinance. SEMIGN-4 : That all sections or parts of the Code of Ordinances, all ordinances or parts of ordinances, including, without limitation, Ordinance No. 76-56, and all resolutions or parts of resolutions, in conflict herewith, be and the same are hereby repealed, but. only to the extent of such conflict. Section 5 z That this Ordinance shall be in full force and take effect upon the earlier to occur of the following• events: (i) The date upon which the City receives the written consent of Florida Power. and Light Company to this Ordinances O! Ui) The date upon which the City obtains an order from the court of competent jurisdiction declaring that the indirect property tax exemption provided for in Section 6 of the 1976 Electric Franchise ordinance is invalid and unenforceable. PASSED FIRST READING this 8th day of May, 1991• PASSED SECOND READING this 22nd day of May, 1991. MAYOR ATTM I DL E ANS RECORD OF COUNCIL VOTE CITY CLERIC IAAYOR ABRAAAOWIIZ ' S- DISTRICT 1: CV KATZ •� 4 I HERESY CERTIFY that I have IrTR0T A approved this ORDINANCE as DISTRICT3: G/W GLASSER S to form. DISTRICT 4 CItY ATTORNEY ordinance.fpl 15:07--FAX 954 72 0 _ Pruvosed by: lei.[ c• Iee -, Introduced by :Q L CL., CL-Lo I n 77— 2590.q CITY OF TANIAR,1C, FLORIDA ORDINAYCE \O. "7 - -iS�•' romp. 0 4 I.s AN ORDINANCE GRANTING TO FLORIDA POWER 4 LIGHT COMPANY, ITS SUCCESSORS AND ASSIGNS AN ELECTRIC FRANCIIISE. AND IMPOSING 1'ROVISIO%S AND CONDITIONS RELATING TIII:Rl:TO,A\D RI-WEALING ORDINANCE, b4.10 itl: IT ORDAINED BY Till: CITY COUNCIL OF Till: CITY W. TAMARAC. FLORIDA: V SI:C1 ION 1: That there Is hereby granted to Florida Power.0 Light Company (herein callcJ the "Grantee"), its successors and assigns, the non-exclusive right, privilege or franchise to construct, maintain and operate in, under. upon, over a -id acrols the present and future street$. aIlevs, bri.iges, casement•• and �" other 11uhlit: 1+1a.r• t ;l„ t +t. t I l++rid.+, co the 'Gr:+ntor") anJ its :ltcceK:or.. In accordance with cstahlisht:d practice with respect to electrical construction and maintenance, for the period of thirty years from the date of acceptance hereof. electric light and power facilities tincluding conduits, poles, wires and transmission lines. and, for its own use, telephone and tclegrnph lines) for the purpusc of +upplyilig electricity to Grantor :utd its successars, aad inlr:rhitants therrol•. and I+crsons and corporations beyond the limits thereor. 51- 710N As :t condition preceJent to the taking effect of this grant. Grantee shall have filed its acceptance hereof with the Grantor's clerk within thirty (30) days hereof. SECTION 3: That the facilities shall be sc located or relocated and so erected as to intrrrcrc as little as possible with traffic over said streets, alleys, bridges and public places, and with reasonable egress from and ingress to abutting property. The location or relocation of all facilities shall be made under s 0-1/16/01 15:08 FAX 954 724 1370 TAMARAC CITY ATTY'S OFF. the supervision and with the approval of such representatives as the governing body of Grantor may designate for the purpose, but not so as unreasonably to interfere with the proper operation of Grantee's fac•i 1 it it•s and service. That when :ur)• port ian or ;a street is excavated by Grantee in the location dr relocation or any of its facilities, the portion or the street do excuvatcd shall, within a rensonablc time and as early as practicable after such excavation. be replaced by the Grantee at its expense and in as good condition as it was at the time of such excavation. Sla:r1UN •1: That Grantor shall in no w:r)l,bc liable or responsible for any accident or damage that may occur in the construct iun, operation, or maintenance by Grantee or its facilities hereunder, and Eire acceptance or this. ordinance shall be deemed an agreement on the part of the Grantee. to indemnify Grantor and hold it harmless against any and all liability, loss, cost, damagc or expense, which may accrue to Grantor by reason or the neglect, dorakll r , r1i<:0lJJJ1C t 1" r:1-Mrcr in th, .'011- struction, opvrariun or 11-intellance of its racilitics hcrcundcr. S1:CT104 5: That all rate+ and rules and rcgulatic established by Crante, from time to time 11a11 -it all times be rea%onahle and Crantec,s rate. for C-e rricity s11:111 at all rimcs be subject to such r'clulation aS may he provided by law. Q01 SECT IU-N to; 'Chat no later than sixty JN%S :11'tcr the first anniversary date or t11is grant :arid nn I:Iter than Sixty days after c;1►11 succ►eding anniversary date or this grant, the Grantee, its SLICeCsscrs and assigns. shall have paid to the Grantor and its successors an amount which added to the amount or all-taxc• as assessed, levied, ar imposed (without regard to any discourt for m:.. early payment or any interest or penalty for late payment), licenses and other impositions lcvlcd or imposed hY the Crantor upon the t:r:ntee's electric property, husinr5s, air oper3tious, and thusc ui' T r c� Grantee's electric suhsidiarica for the preceding tax year, will c: 'viv 01 15:08 FAX 954 724 1370 TAMARAC CITY ATTY.'S OFF. 1 fl 1 I equal 6% of Grantee's revenues from the sale of electrical energy to residential. commercial and industrial customers within the corporate limits of the Grantor for the twelve fiscal months preceding the applicable anniversary date. SECTION 7: Payment of the amount to be paid to Grantor by Grantee, under the terms of St-etion G hereof shall be made in advance by estimated monthly ins:tallfw-nts commencing ninety days after the effective date of this grant. Each estimated monthly installment shall be calculated on the basis of 90% of Grantee's revenues (as defined in Section 6) for the monthly billing period ending sixty days prior to each scheduled monthly payment. The final instal lmrnt•. fta rac•h fiscal year or lhlx grant shal l for std.lu%t"d to reflect any under, ayment or overpayment resulting from estimated monthly installments made for said fiscal year. SECTION 8: As a further consideration of this franchise. said Grantor agrees not to engage in the businr�s Of distributing and selling electricity during the lif.• of this franchise -t• extension t1n roof in competition with Litt- Grantor, its successor and assigns. sF:Crim 9: Th tt failure on the part of Grnno-v to rnmply in any substantinl respect -ith any of the provisions of this ordinance. shall be grounds for a forfeiture of this grant. but no assch forfeiture shall take effect if the reasonableness or propriety thereof is protested by Grantee until a court of competent jurisdiction (with right of appeal in either party) shall have found tha' Grantee has failed to enmply in subst2ntiai respect with any of .he provisions of this franchise. and the Grantee shall hrvr a ,.% ((C) months; after the final determination of the question. to make good the default before a forfeiture shall result with the right in Grantor at its discretion to grant such additional time to Grantee for compliance as necessities in the n case require. .r_ -3 16/01 15:09 FAX 954 724 1370 tl a 1 1 TAMARAC CITY A,TTY' S OFF. SECTION 10: This ordinance shall take effect on the date upon which,Grantee files its acceptance. SECTION 11: That if for any reason this Ordinance shall be held to be invalid it is the declared intent of the City Cquncil that this Ordinance shall then be held to be inoperative and Ordinance W-10 of the City of Tamarac shall be and remain in full force and effect. PASSED FIRST READING this 11 day of NOVEMBER 1976. PASSED SECOND READING this 8th day of DECEMBER 1976 Q 01 PASSEp AT RECONSIDERATION OF SECONVEADI G on the 12th day of January' 1977 • v ...... rr�,,. ayor r _ CTTY--CRK I HEREBY CERTIFY that I hive approved the form and cor-ectness of this Ordinance. CITY ATTORNEY, WLLLr GUIMILL MAYOR RECORD Olt OUNCI VOTE VIM H. MASSARO a � c. CIW AL •KELCH [ t Cft1 0 TUCKER eLlr CAI K WEINBERGER a L RECORD OF COUNCIL VOTE MAYOR W. FALCK VIM H. MASSAR,O u C jW 161. KELCH — Cjhl O. TUCKER c CjM W, WEMSEi-GER nt socnnd and final rending; d:itr.: Jnnaciry 12. ID77 G1/16/O1 IS:09 FAX 954 724 1370 TAMARAC CITY ATTY'S OFF. ACCEPTANCE OF ELECTRIC FRANCHISE ORDItJANCE MO. 76-57 BY FLORIDA POWER i LIGHT COMPANY Dated: January 26, 1977 City of Tamarac Tamarac, Florida Florida Power i Light Company does hereby accept the electric franchise in the City of Tamarac, Florida, granted by Ordinance No. 76-57, being: "AN ORDINANCE GRANTING TO FLORIDA MISR i LIGHT COMPAN1, ITS SUCCESSORS AND ASSIGNS A_V ELECTRIC FRA.CHISE, AND IMPOSING PROVISIONS AND CONDITIONS t RELATING THERETO." which was passed and a'•opted on January 12, 1977. This instrum• nt is filed with the City Clerk of the City of Tamarac, Florida, in accordance with the provisions of Section 2 of said Ordinance. FLORIDA POW -ER i LIGHT COMPANY By Sepior Vice' rest ent.,• t ATTEST: i I HEREBY ACKSOWLEDGE receipt of the above Acceptance of Electric Franchise Ordinance No. 76-57 by Florida Power z Light Company, and certify that I have filed the same for record in the permanent files and records of the City of Tamarac, Florida, on this day of i ,: a :./ . 1977. �. Ass•t City Clerk!of -the Ci of Tamarac, ; F10;'ida fM 01 01 15:10 FAX 954 724 1370 _ TAMARAC CITY ATTY'S OFF_ C E R T I F I C A T E In connection with Ordinance No. 76-57,,,being AN ORDINANCE GRANTING TO FLORID.\ POWER i LIGHT COMPANY, ITS SUCCESSORS AND ASSIGNS, AN ELECTRIC FRANCHISE, A,VD IMPOSING PROVISIONS AND CONDI- TIONS RELATING THERETO, I hereby certify as follows: a. The City Council met on January 12, 1977 to read and act an franchise to Florida Power i Light Company. Those present were: t►:rlter W. Falck. llayor lit -Ion Massaro, Vice Mayor ►larjor.r Erlch. Councilwoman ust-ar I.. Tucker. Councilman Morton Weinberger. Councilman The Ordinance had been read on `ovember 11, 1976 for the first time. It was agreed to read it for the second time on January 12, 1977. The Ordinance was read and adopted as Ordina—+• No. 76-57. b. On January 5, 1977 notice of purposed enactment of Ordinanco No. 76-S7 was published in a newspaper of general circu- lation in the City of T..marac and the Ordinance No. 76-57 as proposed and adopted was maintained for inspection by the public at the Office of the City Clerk, Tamarac City Nall. c. Upon its final passage or January :?- 1977, Ordin.nce No. 76-57 was signed by the Mayor and City Clerk of the City of Tamarac and recorded in a book kept for that purpose, and the respective votes of eac-i member of the City Council prosent were recorded in the record of the meeting. This day of .r wu :c . 1977. rn•r, P7 Ass't" city C erk of the Cltyor Tamarac, Florida C"�- iuCo;� fti rrn r+r: -qr 0rGgl ! 1 �;• S' rn G?u1rrT .IOM�q SI �rl •. ORDINANCE NO. AN ORDINANCE GRANTING TO FLORIDA POWER & LIGHT COMPANY, ITS SUCCESSORS AND ASSIGNS, AN ELECTRIC FRANCHISE, IMPOSING PROVISIONS AND CONDITIONS RELATING THERETO, PROVIDING ITY ING FOR MONTHLY PAYMENTS T THE OF TAMARAC, AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, there is currently in effect a franchise agreement between the City of Tamarac, Florida and Florida Power & Light Company, the terms of which are set forth in City of Tamarac Ordinance No. 76-57, passed and adopted January 12, 1977, and Florida Power & Light Company's written acceptance thereof dated January 26, 1977, granting to Florida Power & Light Company, its. successors and assigns, a thirty (30) year electric service franchise (the "Current Franchise Agreement," a true copy of which is attached hereto as Exhibit "A"); and WHEREAS, the City of Tamarac filed a complaint against Florida Power Light Company in that certain cause styled City of Pompano Beach, Florida, et al. v. Florida Power & Light Company, In the Circuit Court of the 17t" Judicial Circuit in and for Broward County, Florida, Case No. 01-008883 (03) (the "Lawsuit," a true copy of which is attached hereto as Exhibit "B"); and WHEREAS, the Lawsuit challenged the amount of franchise fees payable by Florida Power & Light Company to the City under Section 6 of the Current Franchise Agreement, and asked the Court to reform the Current 1 DRAFT FOR p,,CUSSION PURPOSES EXHIBIT 1 13 Franchise Agreement to increase the amount of franchise fees payable thereunder; and WHEREAS, Florida Power & Light Company vigorously disputed the allegations and claims in the Lawsuit; and WHEREAS, the City of Tamarac and Florida Power & Light Company desire to settle the Lawsuit by entering into a new thirty (30) year franchise agreement with the terms set forth below ("New Franchise Agreement") prior to expiration of the Current Franchise Agreement, and dismissing all of the City of Tamarac's claims against FPL,in the Lawsuit with prejudice; and WHEREAS, the New Franchise Agreement is intended to settle and bar any and all claims by the City of Tamarac relating in any way to the amount of franchise fees payable by Florida Power & Light Company to the City, including. without limitation any and all claims relating to the amounts and revenues used to calculate and pay such franchise fees, including but not limited to any and all claims that were or could have been asserted in the Lawsuit and any and all claims under Section 5 of the New Franchise Agreement, including without limitation any and all claims relating to the amounts and revenues used to calculate the franchise fee under that section; and WHEREAS, the City of Tamarac understands and agrees that the revenues described in Section 5 of the New Franchise Agreement are limited to the precise revenues described therein, and that such revenues do not include, by way of example and not limitation: (a) revenues from demand charges, (b) revenues from the sale of electrical energy for Public Street and Highway Lighting 2 DRAFT FOR DISCussioN PURPOSES ONLY (service for lighting public ways and areas); (c) revenues from Other Sales to Public Authorities (service with eligibility restricted to governmental entities); (d) revenues from Sales to Railroads and Railways (service supplied for propulsion of electric transit vehicles); (e) revenues from Sales for Resale (service to other utilities for resale purposes); (f) franchise fees; (g) Late Payment Charges; (h) Field Collection Charges; (i) other service charges; and WHEREAS, the New Franchise Agreement will provide substantially increased benefits to the City of Tamarac; and WHEREAS, the City Council of the City of Tamarac deems it wise and in the best interest of the City and its citizens to enter into the New Franchise Agreement prior to expiration of the Current Franchise Agreement; and WHEREAS, the City Council of the City of Tamarac has had advice of its attomeys as to the meaning, intent, purpose and legality of the New Franchise Agreement; WHEREAS, the City Council of the City of Tamarac ("City") recognizes that the citizens of the City need and desire the benefits of electric service; and WHEREAS, the provision of such service requires substantial investments of capital and other resources in order to construct, maintain and operate facilities essential to the provision of such service in addition to costly administrative functions, and the City does not desire to undertake to provide such services; and WHEREAS, Florida Power & Light Company is a public utility which has the demonstrated ability to supply such services; and WHEREAS, Florida Power & Light Company and the City desire to enter 3 DRAFT FOR DISCUSSION PURPOSES ONLY into a franchise agreement providing for the payment of fees to the City in exchange for the nonexclusive right and privilege of supplying electricity and other services within the City free of competition from the City, pursuant to certain terms and conditions; NOW, THEREFORE, BE iT ORDAINED BY THE CITY COUNCIL OF THE CITY OF TAMARAC, FLORIDA. Sectio "I. There is hereby granted to Florida Power & Light Company, its successors and assigns (herein called the "Grantee"), for the period of 30 years from the effective date hereof, the non-exclusive right, privilege and franchise (herein 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 (herein 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 Tamarac, Florida, and its successors (herein 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 all of the Grantee's operations (herein called 'facilities"'), for the purpose of supplying electricity and other electricity related 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- 4 DRAFT FOR DisCUS510N PURPOSES ONLY 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 installed before or after the effective date hereof in public rights - of -way unless or until widening or otherwise changing the configuration of the - - used -b motor vehicles causes such paved portion of .any public- right-waY 3�. 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 fight -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 5 DRAFT FOR DISCUSSION PURPOSES ONLY to reimbursement of its costs from others and as may be provided by law. See i� 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 eration or maintenance of its facilities hereunder_ Grantee in the construction, op gAll rates and rules and regulations established by the Grantee ®ct� from time to time shall be subject to such regulation as may be provided by law. S ion As a consideration for this franchise, the Grantee shall pay to the Grantor, commencing 90 days after the effective date hereof, and each month thereafter#or 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 taxes 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 60 days prior to each such payment will equal 5.9 percent (5.9%) of the Grantee's billed revenues, less actual write -oft, from the sale of electrical energy to residential, commercial and industrial customers 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 payment for the rights and privileges granted herein exceed 5.9 percent (5.9%) of such revenues for any monthly billing 6 DRAFT FOR DISCUSSION PURPOSES ONLY period of the Grantee. Sect 6_ if during the term of this franchise the Grantee enters into a franchise agreement with any oti;per municipality located in Broward County, Florida, the terms of which provide for the payment of franchise fees by the Grantee at a rate greater than 6 percent of the Grantee's residential, commercial and industrial revenues, under the same terms and conditions as specified in Section 5 hereof, the Grantee, upon written request of the Grantor, shall 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 hereof shall be no greater than that p ercentage which the Grantee :has agreed to use as a basis for the calculation of payments to the other Broward County municipality, provided, however, that such new franchise agreement shall include benefits to the Grantee, in addition to all benefits provided herein, at least equal to those provided by its franchise agreement with the other BrDWard County municipality. Subject to all limitations, terms and conditions specified in the preceding sentence, the Grantor shall have the sole discretion to determine the percentage to be used in calculating monthly payments, and the Grantee shall have the sole discretion to determine those benefits to which it would be entitled, under any such new franchise agreement. Section 7. 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 service (herein called a "retail customer") or to any electrical distribution system established solely to serve any 7 DRAFT FOR DISCUSSION PURPOSES ONLY 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 ar on behalf of the Grantor at one location to the Grantors 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 shall 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, Ahat before the Grantor elects to purchase electric capacity and/or 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 shall thereafter have 90 days to evaluate the offer and, if the Grantee agrees to meet or beat the other person's offer, 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 Grantor fora term no shorter than that offered by the other person_ if the Grantee does not agree to meet or beat the other person's offer, all of the 8 DRAFT FOR DISCUSSION PURPOSES ONLY terms and conditions of this franchise shall remain in effect - Section _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 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 60 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. The Grantor shall then have 60 days in which to correct or otherwise remedy the terms and conditions complained of by the Grantee. If the Grantee determines that such tens or conditions are not remedied by the Grantor within said time period, the Grantee may terminate this agreement by delivering written notice to the Grantors Clerk and termination shall be effective on the date of delivery of such notice. . Section 9_ 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 9 DRAFT FOR t)ISCUSSION PURPOSES ONLY 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 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 disadvantage is not remedied within the time period P rovided hereafter. The Grantee shall give the Grantor at least 90 days advance, written notice of its intent to terminate. Such no#ice 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. The Gr antor shall then have 90 drays 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 agreement by delivering written notice to the :Grantor's Clerk and termination shall take effect on the date delivery af such notice. Secti��e, Failure on the part of the Grantee to comply in any substantial respect with any of the provisions of this franchise shall be grounds for 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 in the Grantor at its discretion to grant such additional time to the Grantee for 10 DRAFT FOR DISCUSSION PURPOSES ONLY compliance as necessities in thecase require. Section 11. Failure on the part of the Grantor to comply in substantial respect with any of the provisions of this ordinance, including: (a) denying the Grantee use of public rights -of -way for reasons other than unreasonable conditions for use of public interference with motor vehicular traffic; (b) imposing dg h 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 and entitle the Grantee to withhold all or part of the payments provided for in Section 5 hereof until such time as a use permit is issued or a court of competent jurisdiction has reached a final determination in the matter. Grantee will provide 30 days written no tice of the breach to the Grantor's manager or mayor, said notice effective on the date faxed, electronically mailed or mailed, prior to wlthholding all or part of the payments provided for in Section 5 hereof_ The Grantor recognizes and agrees constitutes or shall be deemed to constitute a waiver of that nothing in this franchise the Grantee's delegated sovereign right of condemnation and that the Grantee, in its sole discretion, may exercise such right. ection 12. The Grantor may, upon reasonable notice and within 90 days after each anniversary date ofthis franchise, at the Grantor's expense, examine the records of the Grantee relating 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 11 DFAFT FO1t DISCUSSION PURPOSES ONLY 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 accordance with this section shall not be conducted by any third party employed by the Grantor whose fee for conducting such audit is contingent on findings of the audit. j Secfon 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 14_ 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. Se ion 15. Ordinance No. 76-57, passed and adopted January 12, 1977, ordinance No. o-91-22, passed and adopted May 22, 1991, and all other ordinances and parts of ordinances and all resolutions and parts of resolutions in conflict herewith, are hereby repealed. Se ion 16. As conditions precedent to the taking effect of this ordinance, a the Grantor shall have served and filed its Notice of Dismissal with Prejudice of its action and claims against Grantor in that certain cause styled Cites Pampano 12 DRAFT FOR DISCUSSION PURPOSE5 ONLY et al. v. Florida Power Li ht Company, In the Circuit Court of the 17'h Beach Judicial Circuit in and for Broward County, Florida, Case No. 01-008883 (03), identical in all material respects to Exhibit "C" hereto, prior to May 29, 2002; (b) the Grantor shall have executed and -delivered to Grantee a Release And Waiver Of All Claims identical in all material respects to Exhibit "D" attached hereto, prior to May 29, 2002; the Grantee shall have filed its acceptance hereof with the Grantor's. Clerk identical in all material respects to Exhibit "E" attached hereto, on or before May 29, 2002. If all of the foregoing conditions precedent have been performed, the effective date of this ordinance shall be May 29, 2002. PASSED on first reading this . day of �...�� 2002. PASSED AND- AD -OPTED on second . -reading thls--_-. - day of 2002. 13 DRAFT FOR DISCUSSION PURPOSES ONLY CITY OF TAMARAC, FLORIDA By; 14 DRAFT FOR DISCUSSION PURPOSES ONLY MAY-07-2002 TUE 03:51 PM WEISS SEROTA HELFMAN FAX NO. 954 764 7770 P. 09/10 Apr-29-02 01:17pe FronrSH&D LLP 4 305 577 7001 T-574 P-M P-cos Exhibit E Temp. Ord. #1964 ACCEPTANCE OF ELECTRIC FRANCHISE OR13INANCE NO. � BY FLORIDA POWER & LIGHT COMPANY city of Tamarac FI 'da 2002 Tamarac, ❑r1 Florida Power & Light Company does hereby accept the electric franchise in the City of Tamarac, Florida, granted by ©To FLOIDA POWER & rdinance No. �, being' 'BAN ORDINANCE GRANTING 550 SRAND ASSIGNS LIGHT COMPANY, ITS SUCOE AN ELECTRIC FRANCHISE, IMPOSIINT ROVIS IONS AND CONDIT10NI5 RELATING THE FOR MONTHLY; PAYMENTS DR AN EFFECTIVE THE CITY OF TAMARAC, AN6- PROVIDING F DATE.°' which was passed and adopted an _ J,_,_ �� 2002. This instrument is filed with the City Clerk of the city of Tamarac, Florida, in accordance with the provisions of section 16 of said Ordinance, to become effective on May 29; 2002 an condition that the City of Tamarac shall have () a filed and served prior to May 29, 2002 the Notice of Voluntary Dismissal With Prejudice described in said section, and (b) executed and delivered to Florida Power & Light Company prior to May 29, 2002, the Release And Waiver Of All Claims described in said section. FLORIDA POWER & LIGHT COMPANY BY Vice President 1 DRAM FOR piscussl0N PURPOSES ONLY MAY-07-2002 TUE 03:52 PM WEISS SEROTA HELFMAN Apr-29-02 010 Tpm From -SHAD UP 4 FAX NO. 954 764 7770 P. 10/10 305 577 7001 T-574 PAll P—cnv ATTEST: DRAFT FOR D15CUSS[ON PURPOSES ONLY SUN -SENTINEL �FL PUBLISHED DAILY FORT LAUDERDALE, BROWARD COUNTY, FLORIDA BOCA RATON, PALM BEACH COUNTY, FLORIDA MIAMI, MIAMI DADE COUNTY, FLORIDA STATE OF FLORIDA COUNTY OF BROWARD/PALM BEACH/MIAMI DADE BEFORE E UNDERSIGNED AUTHORITY, PERSONALLY APPEARED �, WHO, ON OATH, SAYS THAT HE/S IS A DULY AUT14KIZED REPRESENTATIVE OF THE CLASSIFIED CITY OF DEPARTMENT OF THE -SENTINEL, DAILY NEWSPAPER PUBLISHED TAMAW;;i'I.ORtf)A IN BROWARD/PALM BEACH/MIAMI DADE COUNTY, FLORIDA, AND THAT THE ATTACHED COPY OF ADVERTISEMENT, BEING A: ,4 lowin Nearing e i i following Ordinance wil beheld during the Regula City commission ineetini on Wednesday, May 22 NOTICE 2002. at or after 9:00 a.m. IN THE MATTER OF: Temporary Ordinance 1964 IN THE CIRCUIT COURT, WAS PUBLISHED IN SAID NEWSPAPER IN THE r1VFTemiten ary ISSUES OF: 1964orary Ordinen'ce Art frdinance antito F)orlda PoWle ng & Ught 5/11,1 D 10895434 0o pany Im'successors en ' asai ns a an electric franchise; Imposing;provi- sidns and conditions, re- AFFIANT FURTHER SAYS THAT THE SAID SUN -SENTINEL IS A NEWSPAPER dating thereto and provid PUBLISHED IN SAID BROWARD/PALM BEACH/MIAMI DADE COUNTY, FLORIDA, to for monthly payments to the city of Tamarac; AND THAT THE SAID NEWSPAPER HAS HERETOFORE BEEN CONTINUOUSLY [providingg for conflicts; PUBLISHED IN SAID BROWARD/PALM BEACH/MIAMI DADE COUNTY, FLORIDA, andprovidingforaneffetc- tive date: EACH DAY, AND HAS BEEN ENTERED AS SECOND CLASS MATTER AT THE copies of the proposed POST OFFICE IN FORT LAUDERDALE, IN SAID BROWARD COUNTY, FLORIDA, ordinance are available for viewing and purchase FOR A PERIOD OF ONE YEAR NEXT PRECEDING THE FIRST PUBLICATION OF at the office of the city ATTACHED COPY OF ADVERTISEMENT; AND AFFIANT FURTHER SAYS THAT of s oo A.M. and,the 0o PM. HE/SHE HAS NEITHER PAID, NOR PROMISED, ANY PERSON, FIRM, OR idontlay Friday. 'Interested parties may ap- CORPORATION, ANY DISCOUNT, REBATE, COMMISSION, OR REFUND, FOR THE pear and be heard wit OF SECURING THIS ADVERTISEMENT FOR PUBLICATION IN SAID ce t in.accordance NEWSPAP With Florida Statutes 166.041. Pursuant to ,section 286.0105, Florida Stat- utes, -if a' person'' decides SIGNA URE OF AFFIANT to appear any decision ( ) made by the city commis- sion with respect to any matter considered at such SWORN TO AND SUBSCRIBED BEFORE ME ameetin'g or hearing, Vhe ON: 11-May-2002 , A.D. proceed neengsrandr for such purpose may need to en- sure that a verbatim record of the proceedings is made, which record in - (SIGNATURE OF NOTARY PUBLIC) eludes the testimony and evidence upon which the appeal Is to be based. The City of Tamarac com- tPnr"nG'., Tara L. Bezak plies with the provisions .�; of the Americans With Dis .- MYCpMMISSION# DD024939 EXPIRES abilities Act. If you are a _ July 20, 20QS [disabled person requiring � of �L '• BON DEDTHRUTROY FAININSURANCE, INC. !any accommodations or iassistance, please notify the city of such -need at (NAME OF NOTARY, TYPED, PRINTED, OR STAMPED) ',least tz hours (3 days) in advance. /s/ Marion Swenson, civc PERSONALLY KNOWN ✓ OR city clerk; SEAL. May 1 ,,YOOY PRODUCED IDENTIFICATION