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HomeMy WebLinkAboutR-2002-034 Approving the Settlement of the lawsuit existing between the City of Dania Beach, Florida, ET Al, and the Florida Power and Light Company RESOLUTION NO. 2002-034 A RESOLUTION OF THE CITY OF DANIA BEACH, FLORIDA APPROVING THE SETTLEMENT OF THE LAWSUIT EXISTING BETWEEN THE CITY OF DANIA BEACH, FLORIDA, ET AL, AND THE FLORIDA POWER AND LIGHT COMPANY; AUTHORIZING THE PROPER CITY OFFICIALS TO EXECUTE DOCUMENTS IN CONNECTION WITH SUCH SETTLEMENT, INCLUDING NOTICE OF A DISMISSAL WITH PREJUDICE, A RELEASE AND WAIVER OF ALL CLAIMS AND A PROMISSORY NOTE; FURTHER, PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City of Dania Beach and several other municipalities located in Broward County, Florida filed a lawsuit in the Seventeenth Judicial Circuit Court for Broward County, Florida, known as City of Dania Beach, et al. v Florida Power and Light Company, Case No. 01-008883; and WHEREAS, the City of Dania Beach and FP&L are willing to settle their differences as identified in the lawsuit, which settlement includes entry by the parties into a new franchise agreement (embodied in a City ordinance), repayment of $443,156.00 for funds overpaid by FP&L to the City and execution of associated settlement documents pertaining to dismissal of the litigation, including a Promissory Note for the subject repayment; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF DANIA BEACH, FLORIDA: Section 1. That the proper City officials are authorized to execute settlement documents in connection with the above-referenced litigation, including a Promissory Note (a copy of the form of which is attached, marked as Exhibit "A" and incorporated by this reference) for the repayment of the funds identified above, subject to the approval as to form of such documents by the City Attorney. 1 RESOLUTION NO. 2002-034 Section 2. That this resolution shall be in force and take effect immediately upon its passage and adoption. PASSED and ADOPTED this 26th day of MARCH, 2002. S V D: MA R-COMMISSIONER A TEST: ROLL CALL: Dm� COMMISSIONER BERTINO-YES CHARLENE JriLJNSON COMMISSIONER MCELYEA-ABSENT CITY CLERK COMMISSIONER MIKES-YES VICE MAYOR FLURY-YES MAYOR CHUNN-YES APPROVED AS TO FORM AND CORRECTNESS: tHdMAS J. N RO CITY ATTORNEY 2 RESOLUTION NO. 2002-034 PROMISSORY NOTE $443,156.00 Dated: Marche', 2002 For value received, CITY OF DANIA BEACH, FLORIDA, a municipality duly chartered and incorporated under the laws of the State of Florida (the "Borrower"), promises to pay to the order of FLORIDA POWER & LIGHT COMPANY, a corporation organized and existing under ` the laws of the State of Florida (the "Lender"), on the Maturity Date (as hereinafter defined), at the office of the Lender at 9250 West Flagler Street, Miami, Florida 33174, Attention: Bruce R. Wuenker (or at such other office or location as the Lender shall specify to the Borrower in writing from time to time), the principal sum of FOUR HUNDRED FORTY THREE THOUSAND ONE HUNDRED FIFTY SIX AND NO/100 DOLLARS ($443,156.00) (the "Loan"), in lawful money of the United States of America in immediately available funds. The principal amount of this Note shall be payable in full on the date (the "Maturity Date") which is the earlier of (a) one (1) Business Day following the date upon which the Lender makes the first franchise payment to the Borrower pursuant to the provisions of a new Franchise Agreement to be entered into between Borrower and Lender effective no later than March 29, 2002, in the form of a Franchise Ordinance to be adopted by the Borrower prior to March 29, 2002, to the extent that the same are accepted by the Lender pursuant to a written Acceptance of such Franchise Ordinance filed by the Lender on or before March 29, 2002 (the "New Franchise Agreement'), and (b) July 1, 2002. The Borrower shall have the right, at any time or from time to time, to prepay the loan evidenced by this Note in whole or in part, without premium or penalty. • All payments by the Borrower under this Note shall be made without setoff or counterclaim and in such amounts as may be necessary in order that all payments, after deduction or withholding for or on account of any present or future taxes, levies, imposts, duties or other charges of whatsoever nature imposed by any government or any political subdivision or taxing authority thereof, shall not be less than the amounts otherwise specified to be paid under this Note. The Borrower shall further pay any present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies which arise from any payment made hereunder or.from the execution, delivery or registration of, or otherwise with respect to, this Note or any of the other documents evidencing and/or securing the loan evidenced by this Note. Without prejudice to the survival of any other agreement of the Borrower hereunder, the obligations of the Borrower under this paragraph shall survive the termination of this Note and the repayment of the loan evidenced hereby. For the purposes hereof, the following term shall have the following meanings: "Business Day" shall mean a day on which commercial banks are open for business in Miami, Florida. Upon the happening of any of the following events, each of which shall constitute a default hereunder (herein referred to as an "Event of Default'), all liabilities of the Borrower to the Lender, whether or not evidenced by this Note, shall thereupon or thereafter, at the option of the Lender, without notice or demand, become due and payable: (a) failure of the Borrower to perform any agreement hereunder or under any other instrument or agreement evidencing, • MIA2001/88921-1 1 securing and/or guaranteeing the obligations and indebtedness of the Borrower to the Lender evidenced by this Note, including, without limitation, the New Franchise Agreement, or (b) failure of the Borrower to pay in full, when due, any liability whatsoever or any principal installment of this Note. The Borrower agrees to pay all costs incurred by any holder hereof, including reasonable attorneys' fees (including those for appellate proceedings), incurred in connection with any Event of Default or in connection with the collection or attempted collection or enforcement hereof, whether or not legal proceedings may have been instituted. All parties to this Note, including the Borrower and any sureties, endorsers or guarantors, hereby waive presentment for payment, demand, protest, notice of dishonor, notice of acceleration of maturity, and all defenses on the ground of extension of time for payment hereof, and agree to continue and remain bound for the payment of principal, interest and all other sums payable hereunder, notwithstanding any change or changes by way of release, surrender, exchange or substitution of any security for this Note or by way of any extension or extensions of time for payment of principal or interest; and all such parties waive all and every kind of notice of such change or changes and agree that the same may be made without notice to or consent of any of them. Rights and remedies of the holder as provided herein shall be cumulative and concurrent and may be pursued singularly, successively or together at the sole discretion of the holder, and may be exercised as often as occasion therefor shall occur, and the failure to exercise any such right or remedy shall in no event be construed as a waiver or release of the same. • The Lender is hereby authorized at any time and from time to time, without notice to the Borrower (any such notice being expressly waived by the Borrower), to set off and apply any and all payments which may at any time be due and owing by the Lender to the Borrower pursuant to the New Franchise Agreement against any and all of the obligations of the Borrower now or hereafter existing under this Note or any other instrument executed in connection with this Note, regardless whether the Lender shall have made demand under this Note or any such other instrument. Nothing herein, however, shall in any manner be deemed or construed to affect, impair or diminish the obligation of the Borrower to pay this Note in full as and when the same shall become due and payable, which obligation is absolute and unconditional, whether or not any payments are made or to be made by the Lender pursuant to the New Franchise Agreement or are sufficient therefor and whether or not the New Franchise Agreement ever becomes effective. The Lender agrees promptly to notify the Borrower after any such setoff and application, provided that the failure to give such notice shall not affect the validity of such setoff and application. The rights of the Lender under this paragraph are in addition to any and all other rights (including, without limitation, other rights of setoff) which the Lender may otherwise have. No failure on the part of Lender to exercise any right or remedy hereunder, whether before or after the happening of a default shall constitute a waiver thereof, and no waiver of any past default shall constitute a waiver of any future default or of any other default. No failure to accelerate the debt evidenced hereby by reason of default hereunder, or acceptance of a past due installment, or indulgence granted from time to time shall be construed to be a waiver of the right to insist upon prompt payment thereafter, or shall be deemed to be a novation of this Note or as a reinstatement of the debt evidenced hereby or as a waiver of such right or acceleration • MIA2001/88921-1 2 or any other right, or be construed so as to preclude the exercise of any right that Lender may have, whether by the laws of the State of Florida, by agreement, or otherwise; and Borrower and each endorser or guarantor hereby expressly waives the benefit of any statute or rule of law or equity that would produce a result contrary to or in conflict with the foregoing. This Note may not be changed orally, but only by an agreement in writing signed by the party against whom such agreement is sought to be enforced. THE BORROWER HEREBY, AND THE LENDER BY ITS ACCEPTANCE OF THIS NOTE, KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS NOTE AND ANY AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF EITHER PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE LENDER MAKING THE LOAN EVIDENCED BY THIS NOTE. This Note shall be governed by and construed in accordance with the laws of the State of Florida, without regard to the principles of conflicts of laws thereunder. IN WITNESS WHEREOF, the Borrower has caused this Note to be duly executed and delivered as of the date first above written. CITY OF DANIA BEACH, FLORIDA i By: 4Robert Its: Mayor H. Chug Jr. BY: _ Ian Pa i . W nager Attest: By: � Charlene Johnso ' ity Clerk Approved as to form and correctness: By: Th niia's Mns , 'City Attorney • MIA2001/88921-1 3 ACKNOWLEDGEMENT CERTIFICATE STATE OF FLORIDA) COUNTY OF BROWARD) On following persons, Ivan Pato, City Manager and Robert H. Chunn, Jr., Mayor of the City of Dania Beach, Florida, did appear before me this 271h day of March, 2002. Linda G. Fry , sF Cmmbsbn#CC 767980 - &*a A1l6..16,2002 i atuxe of Nq,ary Of Fl A 60°dMG M,INC. —n Personally know ( 11 or produced identification Type of Identification produced • MIA2001/88921-1 4 ORDINANCE NO. 173 AN ORDINANCE OF THE CITY OF DANIA, FLORIDA, GRANTING TO FLORIDA POWER & LIGHT COMPANY, ITS SUCCESSORS AND ASSIGNS AN ELECTRIC FRANCHISE FOR A PERIOD OF THIRTY (30) YEARS, IMPOSING PROVISIONS AND CONDITIONS RELATING THERETO, AND PROVIDING FOR MONTHLY PAYMENTS TO THE CITY, AND PROVIDING THAT ALL ORDINANCES OR PARTS OF ORDINANCES AND ALL RESOLUTIONS OR PARTS OF RESOLUTIONS IN CONFLICT HEREWITH BE REPEALED TO THE EXTENT OF SUCH CONFLICT; AND PROVIDING FOR AN EFFECTIVE DATE. BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF DANIA, FLORIDA: Section 1. That there is hereby granted to Florida Power & Light Company (herein called the "Grantee") , its successors and assigns, "leg or franchise to construct, maintain the non-exclusive right, privi and operate in, under, upon, over and across the present and future streets, alleys, bridges, easements and other public places in the City of Dania, Florida (herein.called the "Grantor") and its successors, in accordance with established practice with respect to electrical construction and maintenance, for the period of thirty (30) years from he date of acceptance hereof, electric light and power facilities 0 (including copduits, 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 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 so located or relocated and so erected as to interfere 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 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 facilities and service. That when any portion of a street is excavated by Grantee in the location or r-location of any of its facilities, the portion bf the street so avated shall, within a reasonable time and as early as practicable aor such excavation, be replaced by the 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 respon- .6ible for any accident or damage 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 harmless 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 construction, operation br maintenance of its facilities here- under. Section 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 be subject to such regulation as may be provided by law. • Section 6_ That no later than sixty (60) days after the first anniversary date of this grant and no later than sixty (60) days after each succeeding anniversary date of this grant, the Grantee, its successors and assigns, shall have paid to the Grantor and its successors an amount which added to the amount of all taxes as assessed, levied, or imposed (without regard to any discount for early payment or any interest or penalty for late payment) , licenses, and other impositions levied or imposed by the Grantor upon the Grantee's elec- tric property, business or operations, and those of Grantee's electric subsidiaries for the preceding tax year, will equal six per cent (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 twelve (12) fiscal months preceding the applicable anniversary date. -2- Section 7. Payment of the amount to be paid to Grantor by *antee under the terms of Section 6 hereof shall be made in ad- ice by estimated monthly installments commencing ninety (90) days Otterthe effective date of this grant. Each estimated monthly installment shall be calculated on the basis of ninety per cent (90%) of Grantee's revenues (as defined in Section 6) for the monthly billing period ending sixty (60) days prior to each scheduled monthly payment. The final installment for each fiscal year of this grant shall be adjusted to reflect any underpayment or overpayment resulting from estimated monthly installments made for said fiscal year. . Section 8— 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 respect with any of the provisions of this ordinance, shall be grounds for a forfeiture of this grant, but no such forfeiture ;hall take effect if the reasonableness or propriety thereof is tested by Grantee until a court of competent jurisdiction (with right of appeal in either party) shall have found that Grantee has failed to comply in a substantial respect with any of the provisions of this franchise, and the Grantee shall 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 franchise as provided by this ordinance shall take effect on the date upon which Grantee files its acceptance with Grantor. Section 11. Should any section or provision of this ordinance or any portion hereof be declared by a court of competent jurisdiction to be invalid, such decision shall not affect the validity of the re- mainder hereof as a whole or any part hereof, other than the part declared to be invalid. -3- Section 12. That if for any reason this ordinance shall be 0 found to be invalid, then, in such event, it is the declared intent of the City Commission that this ordinance shall be inoperative and void as of the time when it was first introduced and that Ordinance No. 308, effective on October 23, 1953, shall be and remain in full force and effect as though this ordinance had not been enacted. Section 13. That all ordinances or parts of ordinances and all resolutions or parts of resolutions in conflict herewith be and the same are hereby repealed to the extent of such conflict. Section 14: That this ordinance shall be in force and take effect immediately upon its passage and adoption. PASSED and ADOPTED on First Reading on the 23rd day of May 1978. PASSED and ADOPTED on Second and Final Reading on the 13th day of June 1978. o / ® - CO R . ATTEST: CITY CLERK'- AUDITOR APPROVED FOR FORM AND CORRECTIVENESS BY FRANK C. ADLER, City Attorney City of Dania, Florida -4- ORDINANCE No 308 AN ORDINANCE GRANTING TO FLORIDA POWER & LIGHT COMPANY, ITS SUCCESSORS AND ASSIGNS. AN ELEC, TKIC FRANCHISE, AND 1\1POSENG PROVISIONS AND CONDITIONS RELATING THERETO: sE IT__0-�a�-�BY THE CITY CONuLSSION OF TIC C�7 OF DANIA� �— --_--_••__.--rLORIDA:— si-tction I. Tltat there is hereby granted to Florida Power&Lipht Company (herein called the "Grantee-). iti successors end as- he non<xclusive ri;;:u,Privilege or franchise to construct,maintain and operate in,under,upon,over and across the present and fu- ture streets,alleys,bridges,casements and other public places of o rid a, (herein called 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 trans- mission lines, end, for its own nse, telephone and telegraph lines) for the purpose of supplying electricity to Grantor,and its successors, the inhabitants thereof, and persons and corporations beyond the limits thereof. Section II. That Grantor hereby reserves the right at and after the expiration of ibis grant to purchase the property of Grantee used under this grant,as provided by the Laws of Florida, in effect at the tirue of Grantee's acceptance hereof, including Section 16722 of the Florida Statutes of IM,and as a condition precedent to the taking effect of this grant.Grantee shall give and grant to the Grantor the right to purchase so reserved. Grantee shall be deemed to have given and granted such right of purchase by its acceptance hereof, which shall be filed with the Grantor's clerk within thirty (30) days after this ordinance takes effect. Section M. That the facilities shall be so located or relocated and so erected as to interfere 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 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 facilities and service.That when any portion of a street is excavated by Grantee in the location or relocation of any of iu facilities.the portion of the street so excavated shall,within a reasonable time and as early as practicable after such excavation,be replaced by the Grantee at iu expense and in as good condition as it was at the time of such excavation, Section IV. That Grantor shall in no way be liable or responsible for any accident or damage 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 Grantee,to indemnify Grantor and hold it harmless against any and all liability, loss, cost, damage or experue, .which may accrue to Grantor by reason of the neglect,default.or misconduct of Grantee in the construction, operation or maintenance of its facilities hereunder. Section V. 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 ail times he subject to such regulation as may be provided by law. Section VI. That within thirty days after the first anniversary date of this grant and within thirty days after each succeeding no- iversary date of this grant,the Grantee,its successors and assigns,shall pay to the Grantor and its successors an a rgir addod to oomoun, of all taxes, licensee, an nth. iosiiione levied or imposed by the Grantor upon the Grau '�prop_rty, business, or ns, and those of Grsntee'4ubn canes for the preceding tax year, will equal 6% of Grantees revenues from the sale of eal energy to residential and commercial customers within the corporate limiu of the Grantor for the twelve fiscal months preced• ing the applicable anniversary date. Section VII_ As a further consideration of this francbise, 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 VIII. That failure on the part of Grantee to comply in any substantial respect with any of the provisions of this ordinance, shu11 be grounds for a forfeiture of ibis grant,but no such forfeiture shall take effect if the reasonableness or propriety thereof is pro- tested by Grantee until a court of competent jurisdiction (with right of appeal in either party) shall have found that Grantee has failed to comply in a substantial respect with any of the provisions of this franchise, and the Grantee shall have six (6) months after the final determination of the question,to make good the default before a forfeiture shall result with the ri:lat in Grantor at its discretion to grant rucb additional time to Grantee for compliance as necessities in the case require. Section IX. This ordinance shall take effect in accordance with the provisions of the Charter of the City of Dania, Florida (Chapter 25768, Laws of Florida, Acts of 1949, as amended). Section X. That all ordinances end parts of ordinances in conflict herewith be and the same are hereby repealed 21 September 53 PASSED AND ADOPTED this........... -....._duv oL_.._.._._ ..._.._.---.__..—..-------------..--- T9.-•--- /.%J. �: �z••.��•�.`— --- Titlr.�1•T�.�or_C crrj s si o n e r Sent ember 51 _._.�...., .... ._r..,�.,_._��_.f`�..... ....ter.—z__ _ .. 9layur Title_Corc:dssioners ACCEPTANCE OF ELECTRIC FRANCHISE ORDINANCE NO. 173 BY FLORIDA POWER & LIGHT COMPANY City of Dania June 28, 1978 Dania, Florida Florida Power & Light Company does hereby accept the electric franchise in the City of Dania, Florida, granted by Ordinance No. 173, being: "AN ORDINANCE OF THE CITY OF DANIA, FLORIDA, GRANTING TO FLORIDA POWER & LIGHT COMPANY, ITS SUCCESSORS AND .ASSIGNS AN ELECTRIC FRANCHISE FOR A PERIOD OF THIRTY (30) YEARS, IMPOSING PROVISIONS AND CONDITIONS RELATING THERETO, AND PROVIDING FOR MONTHLY PAYMENTS TO THE CITY, AND PROVIDING THAT ALL ORDINANCES OR PARTS OF ORDINANCES AND ALL RESOLUTIONS OR PARTS OF RESOLUTIONS IN CONFLICT HEREWITH BE REPEALED TO THE EXTENT OF SUCH CONFLICT; AND PROVIDING FOR AN EFFECTIVE DATE." which was passed and adopted on June 13, 1978. This instrument is filed with the City Clerk of the City of Dania, Florida, in accordance with the provisions of Section 2 of said ordinance. FLORIDA POWER & LIGHT COMPANY 1 / ny� � Vir ce President ATTEST: Secre ry I HEREBY ACKNOWLEDGE receipt of the above Acceptance of Electric Franchise Ordinance No. 173 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 Dania, Florida on this 28th day of June, 1978. City Clerk of the City of Dania, Florida • STATE OF FLORIDA ) COUNTY OF BROWARD ) CITY OF DANIA ) I, Mary Thornhill, duly appointed and acting City Clerk of the City of Dania, DO HEREBY CERTIFY that the foregoing is a true and correct copy of Ordinance No. 308, of the ordinances of the City of Dania, Florida, passed and adopted by the City Commission of the City of Dania, Florida, on September 21, 1953• Dated this 24th day of September, 1953• r rj City Clerk City of Dania, Florida SEAL. VISIONS AND CONDITIONS RELATING THERETO," and certify files that I have and recordsfofethehCitymoffor record in Dania, Floridal,ethis manent fileles _day of October, 1953• �ty Clerk 1 � ACCEPTANCE OF CITY OF DANIA O$ ELECTRIC FRANCHISE ORDINANCE N0. October 21, 1953 i city of Dania Dania, Florida The Florida Power & Light Company does hereby accept Ordinance No. 30$, it being: "AN ORDINANA�G TSING TO SUCCESSORSIANDPASSIGNS, LIGHT COMP AIM IDpOSING PRO- AN TAND ING THERETO. CONDITIONS RELAT VISIONS 't th the City Clerk of This instrument is filed wi the City of Dania, Florida, in accordance with the provi- sions of Section II of said Ordinance. FLORIDA. POWER & LIGHT COtIPANY By Vice President R. C. Fullerton, ATTEST: v� MI. B. PdcDona d, Secretary I hereby acknowledge receipt of the above Acceptance by the Florida Power & Light Company of Ordinance No. 30$, it being: "AN LIGHTDINANCE COMPANY, ITSISUCCESSORS FLORIDA AND1ASSIGNS, LIGHT AND 71�1POSING PRO- AN ELECTRIC FRANCHISE, VISIONS AND CONDITIONS RELATING THERETO," of Dania, Florida, this have cordsofa hheCit}�e for record in the per- and certify thand at I mandayent filesof filed October, 1953- P / ,r l��Clerk City 'RDIN.ANCE NO. 77- .,50 EXPIRES : 6-27-2007- CITY OF POMPANO BEAC: Broward County, Florida AN ORDINANCE GRANTING TO FLORIDA POIrr-P. & LIGri1' CafP?NY, ITS SUCCESSORS AND ASSIQNS, AN ELECTRIC FRANCHISE, IMPOSING PROVISIONS ,AN CONDITIONS RELATING THERETO; PROVIDING FOR N1ON`7riLY PAYbftM'S TO T7-iE CITY; PROVIDING A SAVINGS CLAUSE; PROVIDING A REPEALING CLAUSE; PROVIDING AN E':--ECTIVE DATE. WfiiREA.S, there is currently in effect Ordinance No. 438 of the City of Pompano Beach, Florida, passed and adopted August 24, 1948, whereby the City of Pompano Beach did grant to Florida Power $ Light Company, its successors and assigns, a thirty (30) year electric utility franchise; and *ERLAS, in consideration of the granting by the City of Pompano Beach of a new thirty (30) year franchise prior to expiration of the franch;se granted by said Ordinance No. 438, Florida Power & Light Company has offe ed to include industrial revenues in the franchise fee calculation, and to -emit franchise fee payments to the City in est:Lnated monthly installments rather than on an annual basis as provided in said Ordinance No. 438, thereby providing substantially increased benefits to the City; and • NHER..AS, the City Commission of the City of Pompano Beach therefor` deems it wise and expedient and in the best interest of the City to enter a new franchise agreement with Florida Power u Light Company prior to expiration of the franchise granted by said Ordinance No. 438; and *a-0ZkS, pursuant to law, seven (7) days, notice has been given by publication in a paper of general circulation in the City, notifying the public of this proposed ordinance and of a public hearing in the Commission Aieet_ng Room of the City of Pompano Beac'rl, Florida; and IN=AS, a public hearing before the City Commission was held, pursuant to the published notice described above at which hearing the parties in interest and all other citizens so desiring had an opportunit}- to be and were in fact heard; now, therefore BE IT aAGTED BY TES' CITY OF r?LD.ANO BEACH, FLORIIIA: SECTION 1: That there is hereby granted to Florida Power V Light Company (herein called the "Grantee") , its successors and assigns, the • EXHIBIT A - non-exclusive right, privilege franchise to construct, maintain anc operate in, under, upon, over and across the present and future streo__ alleys, bridges, easements and other public places of the City of parr--- Beach, Florida (herein called the "Grantor") and its successors, in accordance with established practice with respect to electrical core t— and maintenance, for the period of thirty years from the date of acre:-_ hereof, electric light and power facilities (including conduits, poles, wires and transmission lines, and, for its own use, .telephone and tele5- lines) for the purpose of supplying electricity to Grantor, and its successors, and inhabitants thereof, and persons and corporations beyon_ the limits thereof. SECTION 2: As a condition precedent to the taking effect of grant, Grantee shall. have filed its acceptance hereof with the Grantor, clerk within thirty (30) days hereof. SECTION 3: That the facilities shall be so located or relocate. and so erected as to interfere as little as possible with traffic over said streets, alleys, bridges and public places, and with reasonable eg-=_ 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 —o the purpose, but not so as unreasonably to interfere with the proper ope-- of Grantee's facilities and service. That when any portion of a street i= excavated by Grantee in the location or relocation of any of its facilitie the portion of the street so excavated shall, within a reasonable time an_` as early as practicable after such excavation, be replaced by the Grantee its expense and in as good condition as it was at the time of such excavat: SECTION 4: That Grantor shall in no way be liable or responsib7= for any accident or damage that may occur in the construction, operation cT maintenance by Grantee of its facilities hereunder, and the acceptance of ordinance shall be deemed an agreement on the part of the Grantee, to inde- Grantor and hold it harmless against any and all liability, loss, cost, d`7 or expense, which may accrue to Grantor by reason of the neglect, default misconduct of Grantee in the construction, operation or maintenance of its facilities hereunder. 2 SECTION S: That all rates ,d 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 be subject to such regulation as may be provided by law. SEO'rION 6: That no later than sixty days after the first arrive-;` date of this grant and no later than sixty days after each succeeding arJJ,ivo_ date of this grant, the Grantee, its successors and assigns, shall have paid to—the Grantor and its successors, in consideration hereof, an amount which added to the amount of all taxes as assessed, levied, or imposed (without reZ, to any discount for early payment or any interest or penalty for late payment licenses, and other impositions levied or imposed by the Grantor upon the Grantee's electric property, business, or operations, and those of Grantee`s electric subsidiaries for the preceding tax year, will 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. Payments made by the Grantee to the Grantor pursuant to this Section shall not be cons idered in any manner to be .in the nature of a tax. SECTION 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 ninety percent (90%) of Grantee's revenues (as defined in Section 6) for the monthly billing period ending sixty days prior to each scheduled mcnthiti 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 B: As a further consideration of this franchise, Grantor agrees not to engage in the business of distributing and srllln1, electricity during the life of this franchise or any extension tharmr in ccaipetitim with the Grantee, its successors and assigm. 3 • SECTIOI 9: That failure a ne part of Grantee to comply in any substantial respect 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 jurisdiction (with right of appeal in either party) shall have found that Grantee has failed to comply in a substantial respect with any of the provisions of this franchise, and the Grantee shall have six (6) months after the final determination of the ques.__ 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: If any section or provision of this ordinance shall be held invalid, such holding shall not affect or invalidate any other section or provision which is not of itself invalid. SECTION 11: That Ordinance No. 438 and all other ordinances and parts of ordinances in conflict herewith be and the same are hereby repealed. SECTION 12: This Ordinance shall take effect on the date upon i:hic,: Grantee files its acceptance pursuant to Section 2 hereof, upon receipt of which the City Clerk is hereby directed to attach said acceptance to this Ordinance, said acceptance to be thereafter incorporated herein by reference aE if set forth in full. PASSED FIRST READING this 14th day of June 1977. PASSED SECOND READING this 21st day of Jane 1977. MAX1WRYDER, hia.yo: ATi E LLJNZ; Eiry Clerk DCR/lc 5/20/i #215 4 IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT IN AND ® FOR BROWARD COUNTY, FLORIDA CASE NO.: _y CITY OF POMPANO BEACH, FLORIDA. CITY OF COCONUT CREEK, FLORIDA, CITY OF DANI.A BEACH, FLORIDA, CITY OF MARGATE, FLORIDA, and CITY OF TAMARAC, FLORIDA, Plaintiffs, V. cl.. FLORIDA POWER & LIGHT COMPANY, A Florida corporation 3 Defendant. COMPLArN7 T �rr Plaintiffs. CITY OF POMPANO BEACH, FLORIDA, CITY OF COCONUT CREEK, FLORIDA, CITY OF DANIA BEACH, FLORIDA, CITY OF MARGATE, FLORIDA. and CITY OF TAMARAC. FLORIDA, by undersigned counsel, complain against defendant. FLORIDA POWER & LIGHT COMPANY, a Florida corporation. as follows: Jurisdiction. Parties and Venue 1. This is an action for declaratory judgment and unjust enrichment, over which this Court has exclusive subject matter jurisdiction. ?. Plaintiffs. CITY OF POMPANO BEACH, FLORIDA ("Pompano Beach"), CITY OF COCONUT CREEK. FLORIDA ("Coconut Creek"), CITY OF DANIA BEACH. FLORIDA, formerly known as Dania. Florida ("Dania Beach"), CITY EXHIBIT N d 'D D WEISS SER 9 GUEDES. P.A. i.,_I NG CA, IJ; .�... =0 R T _ �c_. (954) 763-4242 • FAX (9S4) 764 `. OF MARGATE, FLORIDA ("Margate"), and CITY OF TAMARAC, FLORIDA ® ("Tamarac"), are municipalities duly chartered and incorporated under Florida law, and situated in Broward County, Florida. Plaintiffs will collectively be referred to as the "Cities." 3. Defendant FLORIDA POWER & LIGHT COMPANY ("FPL") is a Florida corporation, that does substantial business in, owns real property located in, and maintains corporate offices in Broward County, Florida. 4. FPL supplies electricity throughout' each of the Cities pursuant to franchises granted to FPL by the Cities, as more particularly set forth below. 5. FPL, as the owner of real and personal property in each of the Cities, is legally obligated under the Florida Constitution and Florida law to pay each of the Cities those real and personal property taxes levied on FPL by the Cities each year. ® 6. This cause of action occurred and continues to occur in each of the Cities in Broward County, Florida. 7. Venue is proper in Broward County, Florida, pursuant to Chapter 47, Florida Statutes. Conditions Precedent and Authority for Suit 8. The Qoverning bodies of each of the Cities authorized the filing of this action. 9. All applicable conditions precedent to.the bringing of this action have either been satisfied, performed or waived. i WEISS SEROTA HELFMAN PASTORIZA & GUEDES, P.A. 3107 STIRLING WOAD, SUITE 300, FORT LAUDERDAL=, FLORIDA 33312 • TEL. (954)763-4242 • FAX(954)764-7770 COUNT I: DECLARATORI' JUDGMENT • 10. The Cities repeat and reallege paragraphs 1 through 9 as if set forth at length herein. 11. This is an action for a declaratory judgment pursuant to Chapter 86, Florida Statutes, and for such further relief that the Court deems just and proper. The LejZal Controversy 12. A significant legal controversy has arisen between the Cities and FPL relating to each of the Cities' electric franchise ordinances (the "Franchise Ordinances"). 13. The Franchise Ordinances each grant to FPL thirty (30) year electric service franchises in each of the Cities, and also purportedly grant to FPL indirect real and personal property tax exemptions. 14. The Cities believe that such indirect property tax exemptions are impermissible under the Florida Constitution and applicable state lain, and are consequently ultra wires. invalid and void. FPL disagrees. 1�. As a direct result of the foregoing, and as more particularly set forth below. the Cities are in doubt as to their rights under the Franchise Ordinances. Specifically. the Cities are in doubt as to the validity and enforceability of the purported property tax exemptions contained in Section 6 of each of the Franchise Ordinances, the present effect of which is to allow FPL to offset hundreds of thousands of dollars per year in propem, taxes against the six percent (6%) franchise fees, therebS, adversely impacting the financial position of the Cities and consequently, all of their taxpayers. WEISS SEROTA HELFMAN PASTORIZA & GUEDES. P.A. . �. �..�. D. S'..._= 300. 'OR- L..�i.7_�Z)AL-, _._ORID4 3—31_ • ic.�. .o5.1 '63-4242 • 'AX (Q�4) 7b4-i i- The Franchise Ordinances . 16. On June 21, 1977, the Pompano Beach City Commission enacted Ordinance No. 77-50 that granted to FPL an electric franchise for a thirty (30) year term, to deliver electricity throughout Pompano Beach's boundaries on the terms and conditions stated therein. A true copy of the Pompano Beach Franchise Ordinance is attached hereto as Exhibit "A." Shortly thereafter, FPL consented to the terms of the Pompano Beach Franchise Ordinance. 17. On June 23, 1977, the Coconut Creek City Commission enacted Ordinance No. 300.03 that granted to FPL an electric franchise for a thirty (30) year term, to deliver electricity throughout Coconut Creek's boundaries on the terms and conditions stated therein. The Coconut Creek Franchise Ordinance is in all material aspects the same as the Pompano Beach Franchise Ordinance, attached hereto as Exhibit "A." Shortly thereafter, FPL consented to the terms of the Coconut Creek Franchise Ordinance. 18. On June 13, 1978, the Dania City Commission enacted Ordinance No. 173 that granted to FPL an electric franchise for a thirty (30) year term, to deliver electricity throughout Dania's boundaries on the terms and conditions stated therein. The Dania Franchise Ordinance is in all material aspects the same as the Pompano Beach Franchise Ordinance, attached hereto as Exhibit "A." Shortly thereafter, FPL consented to the terms of the Dania Franchise Ordinance. 19. On August 2, 1978, the Margate City Commission enacted Ordinance No. 78-23 that granted to FPL an electric franchise for a thirty (30) year term, to deliver electricity throughout Margate's boundaries on the terms and conditions stated therein. • 4 WEISS SEROTA HELFMAN PASTORIZA & GUEDES, P.A. 107 S?iRLING ROAD. SUITE 300, FORT LAUDERDALE, FLORIDA 33312 • TEL. (9S4)763-4242 • FAX (954) 764_7770 The Margate Franchise Ordinance is in all material aspects the same as the Pompano Beach Franchise Ordinance, attached hereto as Exhibit "A.'' Shortly thereafter. FPL consented to the terms of the Margate Franchise Ordinance. 20. On January 12, 1977, the Tamarac City Commission enacted Ordinance No. 76-57 that granted to FPL an electric franchise for a thirty (30) year term, to deliver electricity throughout Tamarac's boundaries on the terms and conditions stated therein. The Tamarac Franchise Ordinance is in all material aspects the same as the Pompano Beach Franchise Ordinance, attached hereto as Exhibit "A." Shortly thereafter. FPL consented to the terms of the Tamarac Franchise Ordinance. The Franchise Fee and the Improper Indirect Tax Exemption 21. As consideration for the right to use the Cities' streets and public rights-of- way and as consideration for the thirty-year franchises, Section 6 of each of the Franchise Ordinances provides, inter alia, that FPL shall pay to each of the Cities an annual franchise fee of six percent (60 o) of FPL's revenues from the sale of electrical energy to residential. commercial. and industrial customers within the corporate limits of each of the Cities. However. Section 6 of each of the Franchise Ordinances also purportedly allows FPL to offset against this franchise fee an amount equal to all taxes assessed or levied on FPL's electric property.. business or operations in the respective city. 22. Section 6 provides, in totals No later than sixty (60) days after the first anniversary date of this grant. and no longer than sixty (60) days after each succeeding anniversary The `Grantee" in the Franchise Ordinances is FPL and the "Grantor" is each of the respective Cities. WEISS SEROTA HELFMAN PASTORIZA & GUEDES, P.A. 31:�7 S-IRL!N� r=:... SU!TE 300. FORT LAUDERDAL=, FLORIDA 333i2 TEL. (954' 763-4242 • FAX 195e; ?oc_----D date of this grant, Grantee, its successors and assigns, shall have paid to the Grantor and its successors an amount which added to the amount of all taxes as assessed, levied or imposed (without reaard to anv discount for early payment or any interest or penalty for late payment), licenses. and other impositions levied or imposed by the Grantor upon Grantee's electric property, business, or ` operations and those of Grantee's electric subsidiaries for the preceding tax year, will equal six percent 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 (12) fiscal months preceding the applicable anniversary date. (Emphasis added). The underlined language, which creates the improper indirect tax exemption, will hereafter be referred to as the "Tax Exemption Language." FPL's Use of the Improper Indirect Tax Exemption • 23. Relying upon the Tax Exemption Language, FPL claims, and has claimed; that it has the absolute legal right to "offset" annually all ad valorem real property taxes and personal property taxes levied on FPL by each of the Cities from the six percent (6%) franchise fee. 24. In fact, acting pursuant to its purported "legal rights" under the Franchise Ordinances, each and every year since each of the Franchise Ordinances was adopted, FPL has offset property taxes levied on FPL by each of the Cities from its annual 6% franchise fee. No other taxpayer in any of the Cities enjoys such an indirect, dollar for dollar property tax exemption. 6 WEISS SEROTA HELFMAN PASTORIZA 8c GUEDES, P.A. 31C7 S7 R'_!NG ROAD, SUITE 300, FORT LAUDERDALE, FLORIDA 33312 • TEL. (954)763-4242 • FAX (9S4) 764-7770 25. Moreover; each and every year since each of the Franchise Ordinances was ® adopted. FPL has also taken advantage of the discounts for early payment of assessed ad valorem taxes as provided by Section 197.162, Florida Statutes. Accordingly, FPL offsets the entire amount of taxes actually levied on it by each of the Cities, rather than the actual amount of taxes paid by FPL, from the six percent (6%) franchise fee owed by FPL to each City.under the Franchise Ordinances. 26. FPL is recovering every dollar, and more, of the property taxes it pays to each of the Cities each and every year, the result of which is an inequitable, disparate, onerous and unconscionable annual loss of the revenues to the Cities, which, in turn, must be absorbed by all of the other property taxpayers in the Cities. The Indirect Tax Exemption is Ultra Vires and Void 27. At the time the Cities approved the Franchise Ordinances, and at all other times material hereto; the Cities were not authorized by the Florida Constitution or any other law to provide a tax exemption to FPL. Article VII, Section 2 of the Florida Constitution provides in relevant part, that "all ad valorem taxation shall be at a uniform rate within each taxing unit..." Article VII, Section 3, provides for certain limited property tax exemptions, none of which apply here. Article VII, Section 9, authorizes cities and other governmental entities to levy ad valorem taxes but does not authorize any property tax exemptions. 28. In addition, Section 196.001, Florida, Statutes.. provides in relevant part that: Unless expressly exempted from taxation, the following property shall be subject to taxation in the 7 WEISS SEROTA HELFMAN PASTORIZA & GUEDES, P.A. -i - 57..,_:r,G RO.=.D. SU17�- 300. FOR- '_AUD=RD.=.LE. FLORIDA 33312 • kDS4) 763-d242 =AX (954) "o --"ice manner provided by law: (1) All real and personal property in this state and all personal property . belonging to persons residing in this state... Chapter 196 contains numerous exemptions, none of which apply to FPL's real and personal property. This was true under Florida law at the time the Franchise Ordinances were adopted and it continues to be true today. 29. The subject portion of Section 6 of the Franchise Ordinances provides FPL with a set-off against its franchise fee equal to all taxes paid by FPL. Florida law is well- settled that such a set-off constitutes an indirect tax exeption, and is not permitted unless authorized by the Florida Constitution. Thus, the Tax Exemption Language contained in Section 6 is ultra vires and void. The Severance Provision 30. The Franchise Ordinances contain general severance provisions. For example. Section 10 of the Pompano Beach Franchise Ordinance provides: If any section or provision of this ordinance shall be held invalid, such holding shall not affect or invalidate any other section or provision which is not of itself invalid. 31. Thus, the parties agreed and intended that, if this type of problem arose and one section were declared invalid, all remaining portions of the ordinance would remain in effect. Thus, the best way to match the parties' intent is to enforce the severability provision, reforming the Franchise Ordinances to require the payment of a franchise fee of 6% with no improper offset. • 8 WEISS SEROTA HELFMAN PASTORIZA& GUEDES, P.A. 3107 STIRLiNG .RCAD. SUITE 300, FORT LAUDERDALE, FLORIDA 33312 • TEL. (9S4)763-4242 • FAX (9S4) 764-7770 32. As a result of this provision, if the Court declares the Tax Exemption Language to be ultra wires and invalid; it should also provide that the remaining portions of Section 6 and the remaining sections of the Franchise Ordinances remain in full force and effect. This is what the parties agreed would happen if any words or phrases were declared invalid. FPL's Continued Insistence to Tale Advantage of the Improper Tax Exemption 33. Some of the Cities have attempted, in good faith. to obtain FPL's consent to cease use of the improper tax exemption and to amend the Franchise Ordinances. FPL has refused. 34. Accordingly, unless the Court grants the declaratory relief sought by this action. FPL will continue to be the only taxpayer in each of the Cities to enjoy what the Cities believe to be an illegal, ultra wires, and void indirect real and personal property tax exemption. WHEREFORE, the Cities respectfully demand judgment under Chapter 86, Florida Statutes, declaring that: (a) the Tax Exemption Language contained in Section 6 of the Franchise Ordinances constitutes an indirect tax exemption; (b) each of the Cities lacked and lacks the legal power to contract away; directly or indirectly, their ad valorem taxing power; 9 WEISS SEROTA HELF MAN PASTORIZA & GUEDES. P.A. i3- .v ROAD. SUITE 300. FORT LAUDERDA'�E. =!ORID.� 33312 TEL. (954)763-4242 • FAX (954i 764-7770 (c) the Tax Exemption Language contained in Section 6 of each of the Franchise Ordinances is therefore void, ultra vires and unenforceable under the Florida Constitution and applicable Florida law; (d) because of the severability provision, the remaining portions of Section 6 (other than the Tax Exemption Language) and all other Sections of the Franchise Ordinances remain in full force and effect, and (e) further granting to the Cities costs and any other relief the Court deems to be just and proper under the circumstances. COUNT II: UNJUST ENRICHMENT/RESTITUTION 35. The Cities repeat and reallege paragraphs 1 through 9, 12 through 14 and 16 through 34, as if set forth at length herein. 36. This is an action for unjust enrichment/restitution to recover all sums improperly withheld by FPL from the Cities under the ultra vires and void Tax Exemption Language, and for such further relief that the Court deems just and proper. .37. FPL, and all other owners of real and personal property in each of the Cities, is legally obligated to pay to the Cities all real and personal property taxes levied by each of the Cities each year. 38. Each year, FPL has improperly offset a portion of the real and personal property taxes that it owed to each of the Cities, relying on the Tax Exemption Language contained in Section 6 of the Franchise Ordinances. 10 WEISS SEROTA HELFMAN PASTORIZA & GUEDES, P.A. 31C? S71RLING ROAD. SUITE 300. FORT LAUDERDALE, FLORIDA 33312 • TEL. (954)763-4242 FAX(954) 764-777C 39. FPL has been unjustly enriched at the expense of each of the Cities an amount equal to the full amount it has offset in taxes as a result of the Tax Exemption Language. FPL's enrichment has been at the direct expense of each of the Cities. WHEREFORE, the Cities respectfully demand judgment against defendant FPL in an amount to be determined at trial, and further granting to each of the Cities its costs incurred in this action and any other relief the Court deems to be just and proper under the circumstances. DATED: May 15, 2001 Respectfully submitted, WEISS SEROTA HELFMAN PASTORIZA & GUEDES, P.A. Counsel for Plaintiffs 3107 Stirling Road, Suite 300 Fort Lauderdale, FL 33312 Telephone: (954) 763-4242 Telecopier: (954) 764-7770 Bv: J ie Alan Cole Florida Bar No.: 767573 11 WEISS SEROTA HELFMAN PASTORIZA & GUEDES, P.A. 3'0' STiP_;>�G ROAD, SUITE 300. FORT LAUDERDALE. FLORIDA 33312 .E... (9S4) 763--4242 • =AX(95-: 75a.7-70 IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY,FLORIDA CASENO. 01-008883 (03) CITY OF POMPANO BEACH,FLORJDA, et al., Plaintiffs, V. FLORIDA POWER&LIGHT COMPANY, a Florida corporation, Defendant. PLAINTM'l CITY OF DANIA BEACH'S NOTICE OF VOLUNTARY DISMSSAL WrM PREAM'CE Plaintiff, City of Dania Beach, Florida,pursuant to Florida Rule of Civil Procedure • 1.420(a)(1),hereby voluntarily dismisses with prejudice the entirety of its action and all claims it has asserted herein against Defendant;Florida Power&Light Company.] Dated-this day of March, 2002. - WEISS SEROTA B=FMAN PASTORIZA & GUEDES,P.A. Attorneys for Plaintiff, City of Dania Beach 3107 Stirling Road, Suite 300 Fort Lauderdale,Florida 33312 Telephone: (954) 763-4242 Telecopier: (954) 764-7770 By: Jamie Alan Cole Florida Bar No. 767573 ' This notice voluntarily dismisses with prejudice the acii� ns and claims filed herein by the filed herein by the City of Dania Beach,but does not affect other plaintiffs in this case. EXHIBIT N d a 3 RELEASE AND WAIVER OF ALL CLAIMS KNI OW 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 DANIA BEACH ("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 un1mown, 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 EXHIBIT d a 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 Dania Ordinance No. 173, passed and adopted June 13, 1978, and FPL's written acceptance thereof dated.June 28, 1978 ("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 and 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 or 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 assigmnent 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 laiows 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 teams of this Release And Waiver of All Cla ims 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 DANIA BEACH 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 March, 2002. • ATTEST: CITY OF DANIA BEACH, a Florida municipal corporation By: CitN,Clerk , City Manager (SEAL) APPROVED AS TO FOIUM AND LEGALITY: ,City Attorney -4- STATE OF FLORIDA SS: COUNTY OF BROWARD I HEREBY CERTIFY that on this date, before me, an officer duly authorized in this State and County to take acknowledgements, personally appeared , City Manager of the City of Dania Beach, 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 Dania Beach and that the seal affixed is the true seal of the City of Dania Beach. • WITNESS my hand and official seal in the County and State last aforementioned this day of March, 2002. (signature) Commission No. (print name) My Commission Expires: Notary Public . 19 State of Florida • -5- SUN-SENTINEL PUBLISHED DAILY NOTICE OF FORT LAUDERDALE, BROWARD COUNTY, FLORIDA BEFORE PUBLIC RING CITY ACOMMIS- BOCA RATON, PALM BEACH COUNTY, FLORIDA CITTYN OF DANIA BEACH, MIAMI, MIAMI DADE COUNTY, FLORIDA ADOPITTION DA OF THERFING OL- LOWING PROPOSED ORDI- NANCES NOTICE IS HEREBY GIVEN STATE OF FLORIDA that the City commission of the City of Dania Beach, COUNTY OF BROWARD/PALM BEACH/MIAMI DADE (Florida. on March 26 BEFORE THE UNDERSIGNED AUTHORITY, PERSONALLY APPEARED soon' Uie�eafter as the matter may pbe heard,will. conduct a ublic hearingi WHO, ON OATH,SAYS THAT in the City Commission HE/SHE IS A DULY AUTHORIZED REPRESENTATIVE OF THE CLASSIFIED BeachbCity Mall,the e00 west DEPARTMENT OF THE SUN-SENTINEL, DAILY NEWSPAPER PUBLISHED Dania Beach Boulevard, Dania Beach, Florida to IN BROWARD/PALM BEACH/MIAMI DADE COUNTY, FLORIDA, AND THAT THE consider the proposed ATTACHED COPY OF ADVERTISEMENT, BEING A: o�dlntencesf entitled:owing AN ORDINANCE OF THE ADMINISTRATION CITY of DANIA BEACH, FLORIDA. PERTAINING TD CHAPTER 2 OF THE CITY IN THE MATTER OF: CODE of ORDINANCES, WHICH CHAPTER IS ENTI- TLED 'ADMINISTRATION'. AMENDING THE CODE OF Administrabon ORDINANCES,BY AMEND. ING SECTION 2-12. ENTI- TLED -ISSUANCE OF IN THE CIRCUIT COURT, WAS PUBLISHED IN SAID NEWSPAPER IN THE PROMISSORY OBLIGA- TIONS,' BY INCREASING ISSUES OF: GTHE ENERAL SOLID AMOUNT SOL D PR NCI- PAL OBLIGATIONS OUT. STANDING AT ANY ONE 3/15 10813490 TIME FROM S3,000,000.00 TO S6,000,000.00: PRO. VIDING FOR CONFLICTS AFFIANT FURTHER SAYS THAT THE SAID SUN-SENTINEL IS A NEWSPAPER ANCE; FURTH RR PROVED- PUBLISHED IN SAID BROWARD/PALM BEACH/MIAMI DADE COUNTY, FLORIDA, ING FOR AN EFFECTIVE AND THAT THE SAID NEWSPAPER HAS HERETOFORE BEEN CONTINUOUSLY ANT ORDINANCE of THE CITY OF IA PUBLISHED IN SAID BROWARD/PALM BEACH/MIAMI DADE COUNTY, FLORIDA, FLORIDA GRANTS GC To ® EACH DAY,AND HAS BEEN ENTERED AS SECOND CLASS MATTER AT THE FLORIDA POWER AND POST OFFICE IN FORT LAUDERDALE, IN SAID BROWARD COUNTY, FLORIDA, LIGHT COMPANY,ITS SUC- CESSORS AND ASSIGNS, FOR A PERIOD OF ONE YEAR NEXT PRECEDING THE FIRST PUBLICATION OF IMPOSING PROVISIONS ATTACHED COPY OF ADVERTISEMENT;AND AFFIANT FURTHER SAYS THAT AND CONDITIONS RELAT- HE/SHE HAS NEITHER PAID, NOR PROMISED,ANY PERSON, FIRM, OR ING TO SUCH FRANCHISE: PROVIDING FOR MONTHLY CORPORATION,ANY DISCOUNT, REBATE, COMMISSION, OR REFUND, FOR THE PAYMENTS TO B ACHE CITY PURPOSE OF SECURING THIS ADVERTISEMENT FOR PUBLICATION IN SAID VIDING FOR CONFLICTS: N PER. PROVIDING FOR SEVER- ///��� ANCE: FURTHER, PROVID- ING FOR AN EFFECTIVE J DATE. �1/V A Copy of these proposed (SIGNATURE O><,a(FFIANT) theinances Off Off, are o( theh c in lry Clerk, City Hall, 100 west Dania Beach Boulevard, SWORN TO AND SUBSCRIBED BEFORE ME Dania Beach,Florida,and may be inspected by the ON: 15-March-2002 , A.D. public during normal working hours. Interested parties may ap- pear at the aforesaid meeting and be heard with respect to the pro- (SR3WATUREf OF NOTARY PUBLIC) posed. Any person who decides to appeal any de- ,,`� � Barbara Strickland cision made by the City ��"' Commission 9 CC 9440 i 4 Commission with respect to any matter considered _�. FX#M -�; JAY 2004 _ at this hearing will need al! 4; 1 record of the proceedings Bonded 7r-- �� � Atleu`c Bobdi^g Co.,Inc. and for such purpose may ,,, ,�� need to ensure that a ver- batim record of the pro- (NAME OF NOTARY,TYPED, PRINTED, 0 STAMPED) re ord i made, which ecrtl nclutles the testi- mony and evidence upon which the appeal is to be PERSONALLY KNOWN OR based. In accordance with the American with Disabilities PRODUCED IDENTIFICATION Act, persons needing as- sistance to participate in any of the proceedingsi should contact Charlene, Johnson, City Clerk, 1001 West Dania Beach Boule-i vard,Dania Beach,Florida) 33004. (954) 924-3622 at, least 48 hours prior to the meeting. /s/Charlene Johnson City Clerk March 15,2002 A a CITY OF DANIA BEACH MEMORANDUM TO: Mayor and Commissioners cc: Ivan Pato, City Manager FROM: Tom Ansbro, City Attorney DATE: March 21, 2002 RE: Ordinance Adopting Proposed New Florida Power and Light Franchise Agreement; Comparison of Proposed and Current Agreements • The proposed new FP&L Franchise Agreement has been a endaed for City ry Commission adoption by ordinance (second reading) for the March 26, 2002 meeting. Two modifications have been made to the ordinance since its first reading. The "severability" provision has been revised to expressly state that if any provision in the Agreement is found to be invalid, illegal, void or of no effect (by a court), then the entire ordinance shall be considered null, void and of no further force or effect. It is the position of FP&L that the new Agreement provisions are so "interdependent" that, if a court were to effectively remove one or more provisions because of invalidity or illegality, it would affect the entire ordinance and Franchise Agreement. The other change is merely a minor typographical revision (change "In" to "in" in one sentence as requested by FP&L attorneys). The current thirty (30) year Franchise Agreement was adopted by ordinance on June 13, 1978 (Ordinance No. 173) and is set to expire in 2008. The new Agreement also provides for a term of thirty (30) years, expiring in 2032. Both Agreements give FP&L a "non- exclusive" right to supply electricity, and each contains an agreement by the City that it will not compete with the Company by engaging in the business of distribution or sale of electricity. In the proposed new Agreement, a number of recitations are made about the factual background of the proposed settlement of the pending litigation between the Company and the City (in the first three (3) pages of the Agreement, which contain the recitals or "WHEREAS" clauses); the Agreement currently in effect does not, of course have corresponding provisions. March 21, 2002 Page 2 In nearly all other respects, the proposed Agreement is substantially similar to the 1978 -', Agreement. The most significant change in the Agreement is the provision specifying that the current franchise fee paid to the City of 6% of the company's revenues will be altered to a figure of 5.9%, but no "offset" for ad valorem taxes (real estate or property taxes) will be applied against that franchise fee payment. That provision is included as a direct result of the ` claims by the City in the pending lawsuit, and will result in substantial additional revenue to the City. The new Agreement also contains new provisions which recognize that if a competitor of FP&L seeks to sell electric power to the City, the City will afford FP&L an opportunity to "meet or beat" the competitor's offer. If FP&L does not do so, the City is free to purchase power from the competitor, and the Agreement still remains in effect. Another new provision specifies that if the City gives a competitor a franchise that FP&L finds to contain terms more favorable than those in the new proposed Agreement, then FP&L may terminate its franchise with the City. A similar provision is also included within the new Agreement, allowing for termination by the Company if the United States government, State of Florida or any of their respective:agencies allow a competitor to provide service in the City which puts the Company at a "competitive disadvantage". In that event, unless terms are negotiated with such competitor within ninety (90) days from the date FP&L expresses its intent to terminate because of the anticipated competition and disadvantage, and matters cannot be rectified to address this type of "competitive disadvantage", then the Company could terminate the Agreement. The new Agreement also provides the City with the right to audit the Company's records; the current Agreement does not contain such a provision. Lastly, the current franchise contains the standard "severance" or "severability" clause which allows for the franchise Agreement to remain intact even if a court decides that a portion of the Agreement is illegal or invalid. As mentioned above, the new Agreement has a provision which would render the entire Agreement void if a part of it were declared to be illegal, invalid or of no effect. As mentioned above, other provisions, such as indemnification of the City for the Company's actions and restoration of a work site after excavation, are substantially the same in both Agreements. This is now ready for Commission consideration and adoption at the March 26, 2002 City Commission meeting. TJA:slw Attachment