2021-036 Duke Energy Franchise Agreement ORDINANCE NO. 2021-036
AN ORDINANCE GRANTING TO DUKE ENERGY FLORIDA,LLC DB/A
DUKE ENERGY, AN ELECTRIC UTILITY RIGHTS OF WAY
UTILIZATION FRANCHISE; PRESCRIBING THE TERMS AND
CONDITIONS RELATED TO THE OCCUPANCY OF MUNICIPAL
STREETS AND RIGHTS OF WAY IN THE CITY OF OCOEE, FLORIDA,
FOR THE PURPOSE OF PROVIDING ELECTRIC SERVICE;
PROVIDING FOR SEVERABILITY OF PROVISIONS; AND PROVIDING
AN EFFECTIVE DATE.
BE IT ORDAINED BY THE CITY COMMISSION OF OCOEE,FLORIDA:
SECTION 1 —Findings
The City of Ocoee, Florida("City" or "Grantor") deems it necessary, desirable and in the
interest of its citizens to establish by Ordinance a rights of way utilization franchise (sometimes
referred to herein as the "Franchise") granting Duke Energy Florida, LLC d/b/a Duke Energy
("Company" or"Grantee")permission to occupy the Rights of Way in the City for the purpose of
providing electric services.
SECTION 2 - Short Title
This Ordinance shall be known and may be cited as the "Duke Energy Rights of Way
Utilization Franchise."
SECTION 3—Definitions
For the purposes of this Ordinance, the following terms, phrases, words, and their
derivatives shall have the meaning given herein. When not inconsistent with the context, words in
the present tense include the future, words in the plural number include the singular number, and
words in the singular number include the plural number. The word "shall" is always mandatory
and not merely permissive.
(A) "Adversely Affected" — For the Company, a loss of one percent (1%) of Base
Revenues within the corporate City limits due to Retail Wheeling. For the City, a loss of one
percent (1%) of Franchise Fees due to Retail Wheeling.
(B) "Base Revenues" —All of Company's revenues from the retail sale of electricity,
net of customer credits, to residential, commercial and industrial customers and City sponsored
street lighting, all within the corporate limits of the City.
(C) "Electric Energy Provider" — Every legal entity or association of any kind
(including their lessees, trustees or receivers), including any unit of state, federal or local
government (including City herein), which owns, maintains, or operates an electric generation,
transmission, or distribution system or facilities, or which otherwise provides, arranges for, or
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supplies electricity or electric energy to the public, or which supplies electricity to itself utilizing
Company's distribution or other facilities. Without limitation of the foregoing, "Electric Energy
Provider" shall also include every Electric Utility, electric power marketer or electric power
aggregator. It shall also include every entity providing such services as metering, customer billing,
payment collection and processing, and customer infoimation and data processing.
(D) "Electric Utility" — Shall have the meaning set out in Section 366.02(2), Florida
Statutes (2020), and shall also include every electric "Public Utility" as defined in Section
366.02(1), Florida Statutes (2020). "Electric Utility" shall further include every investor owned,
municipally or governmentally owned, or cooperatively owned electric utility (including their
lessees, trustees or receivers), which owns, maintains, or operates an electric generation,
transmission, or distribution system in any State or County.
(E) "Electric Utility System" —An electric power system installed and operated in the
Franchise Area in accordance with the provisions of the Florida Public Service Commission
establishing technical standards, service areas,tariffs and operating standards,which shall include,
but not be limited to, electric light, heat, power and energy facilities, and a generation,
transmission, and distribution system, with such extensions thereof and additions hereto as shall
hereafter be made.
(F) "Franchise Area" — That area for which Company provides electric utility service
within the corporate City limits of the City.
(G) "Franchise Fees"—Shall have the meaning set forth in Section 6 of this Ordinance.
(H) "Facilities"—Conduits,cables,poles,wires, street lighting, supports and such other
structures, appurtenances or accessories as may be reasonably necessary for the construction,
maintenance and operation of an electric generation, transmission and distribution system,
including information,telecommunication, and video transmission used solely for the provision of
electric service.
(I) "Ordinance" — The ordinance titled and described in the preamble herein and
ordained by the City Commission of Ocoee, Florida.
(J) "Person" — Any person, firm, partnership, association, corporation, company or
organization of any kind.
(K) "Public Service Commission"—The Florida Public Service Commission.
(L) "Rights of Way"—All of the public streets, public alleys, public highways, public
bridges, public sidewalks and public parks (only as it relates to Grantee's Facilities currently
located within such public parks as of the Effective Date of this Ordinance), and any other public
ways owned by the City, together with any easements granted to the City, all as they now exist or
may be hereafter constructed, opened, laid out or extended within the present limits of the City, or
in such territory as may hereafter be added, consolidated or annexed to the City; provided,
however, for public parks in which there are no existing Grantee's Facilities, Company shall seek
City's written approval for the installation of new Facilities in such public parks.
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(M) "Retail Wheeling"—A customer/supplier arrangement whereby an Electric Energy
Provider utilizes transmission and/or distribution facilities of Company to make energy sales
directly to an end use customer located within the Franchise Area.
SECTION 4 - Grant of Authority
(A) This grant of authority is limited to the provision by Company to have, maintain,
or place its Facilities within the Rights of Way for its electric utility services. Accordingly, the
City hereby grants to the Company, its successors and assigns the non-exclusive right, authority,
and franchise to lay, erect, construct, maintain, repair and operate its Facilities in, under, upon,
over and across the present and future Rights of Way, as they now exist or may be hereafter
constructed,opened, laid out or extended within the present and future limits of the City,provided
that all portions of the same shall conform to accepted industry standards, including but not limited
to,the National Electrical Safety Code.Nothing in this Ordinance shall require Grantee to remove,
de-energize, or cease using any poles, wires, or other things or Facilities identified hereinabove
that were in place under previous ordinances or permits prior to the Effective Date (as defined in
Section 5) of this Ordinance,regardless of whether such poles,wires or other Facilities are located
outside"Rights of Way" as defined herein.Nor shall anything in this Ordinance prohibit Company
from performing upgrades, replacements, maintenance or servicing of such poles, wires, or other
Facilities after the Effective Date of this Ordinance. Rather, all such preexisting poles, wires, or
other Facilities shall be authorized under this Ordinance. Because this Franchise is intended to
grant Company the unrestricted right to place its Facilities within the Rights of Way, the City
expressly acknowledges and agrees that Company shall not be required to apply for,obtain, or pay
for permits to construct, operate, maintain, or remove its Facilities within the Rights of Way,
except as may be required by governmental entities not controlled by City. Company shall notify
the City at least 48 hours before performing any work that will cause the closing of one or more
lanes of traffic,a traffic detour, or other substantial impact on the flow of traffic, except in the case
of emergency, in which case Company shall notify the City of the work a soon as is practicable.
In performing any work in the Rights of Way,Company shall comply with the Florida Department
of Transportation's ("FDOT") Design Standards Indexes 600 through 670 (latest editions) for
Temporary Traffic Control.
(B) Annexation or Contraction. City represents that as of the date of the adoption of
this Ordinance, it has provided Company with accurate information for all residential,commercial
and industrial customers and City sponsored street lighting that are within the Franchise Area.
Company shall be responsible for remitting the Franchise Fee only to service and billing addresses
identified as being within the Franchise Area as of the date of this Ordinance. However, City and
Company agree that the Franchise Area is subject to expansion or reduction by annexation and
contraction of municipal boundaries. If City approves any Franchise Area expansion or reduction
by annexation or contraction, City shall provide written notice to Company's Annexation
Coordinator, at the address provided below, within sixty (60) days of such approval, and this
Franchise shall automatically extend to include any such annexed areas.
Additionally, within sixty (60) days of any such annexation or contraction, City shall
provide to Company an updated list containing the new or removed street names, known street
name aliases, street addresses, street address number ranges, applicable directional and zip codes
associated with each street name,all zip codes assigned to geographic areas located entirely within
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the City (including zip codes assigned to post office boxes), and all post office box number ranges
and the city names and zip codes associated therewith. For a range of street address numbers
located within City which consists only of odd or even street numbers,the list must specify whether
the street numbers in the range are odd or even. Subject to the first paragraph, Company shall be
responsible for remitting the Franchise Fee only to service and billing addresses identified as being
within the Franchise Area contained in a list which includes all the required elements in this
subsection.
The lists shall be provided by email; except that if a list is available on another medium,
the City shall,upon request,furnish the list on such medium in addition to, or in lieu of,the emailed
list.The municipality shall be responsible for updating the lists as changes occur and for furnishing
this information to the Company.
All notices of annexation or contraction and address listings shall be addressed to the
Annexation Coordinator as follows, with the address subject to change:
Duke Energy
Tax Team DT02-V
9700 David Taylor Drive
Charlotte NC 28262
And by email to: TaxTeam@duke-energy.com
Company must revise its payments due to any annexation or contraction within a
reasonable time after Company has received such notice and updated list from City, but no later
than sixty (60) days after receipt of notice and the list. City understands and affirmatively
acknowledges that the Company will exclusively rely upon the City to provide timely and accurate
information to the Company regarding any such annexations or contractions, and that failure to do
so will impair, inhibit, and/or preclude the Company's ability to revise any payments due to the
City that are impacted by such annexations or contractions. Further,City acknowledges that if such
information is not timely furnished to Company as required herein,any related obligation to collect
payments shall be suspended during the period of delay.
(C) Non-Exclusive Use of the Rights of Way. During the term of the Franchise granted
herein, the Company's right to use and occupy the Rights of Way shall be non-exclusive as to
entities not engaged in the provision of electric energy and service. The City reserves the right to
grant the right to utilize the Rights of Way to any person at any time during the period of this
Franchise so long as such grant does not create an unsafe condition or unreasonably conflict with
the rights granted to Company herein. In addition to any other rights and/or remedies Company
may have under this Ordinance or at law or in equity, should City permit an Electric Utility other
than Company to use and occupy the Rights of Way, City agrees that Company shall be entitled
to injunctive relief
SECTION 5 -Notice of Acceptance and Term of Franchise
(A) This Ordinance shall become effective upon being legally passed and adopted
("Effective Date") by the City Commission; and it is further agreed that Grantee shall accept this
Franchise as of the date of the passage and adoption by the City Commission and shall signify its
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acceptance in writing within thirty (30) days after the City Commission's approval of this
Ordinance by filing its written acceptance with the City Clerk. If Grantee fails to accept this
Franchise within thirty (30) days of its date of passage and adoption, then this Ordinance shall be
null and void, and of no force and effect of any kind.
(B) Commencing on the Effective Date, the term of the Franchise granted herein shall
be for a period of ten (10) years. Thereafter, the Franchise granted by this Ordinance may be
renewed for up to two (2) successive five (5) year periods, provided the City provides written
notice of its intent to renew at least six (6) months prior to the date of the expiration.
(C) If the Franchise expires without the parties entering a new franchise agreement,
then the Company will continue to pay unto the City Franchise Fees,as provided in this agreement,
during the period of such negotiations, provided that City is actively engaged in good faith
negotiations toward the execution of a new franchise agreement.
SECTION 6 -Payment to City
(A) Effective the first day of the second month beginning after the Effective Date of
this Ordinance, City shall be entitled to receive from Company a monthly franchise amount that
will equal six percent (6%) of Company's Base Revenues (the "Franchise Fee") for the preceding
month,which amount shall be the total compensation due City for any and all rights, authority and
privileges granted by this Franchise, including compensation for any required peinlits, parking
fees, or any other fee or cost related to the rights granted hereunder. Any Franchise Fees that will
be paid to the City will be collected by the Company from Company's customers in the Franchise
Area and passed through to the City in the manner described herein. The City expressly
acknowledges that no additional or other amounts shall be due or remitted by Company for the
exercise of its rights granted hereunder.
Payment shall be made to City for each month no later than the twentieth(20th) day of the
following month. The monthly payment shall be made by wire transfer. Any monthly payment or
any portion thereof made twenty (20) days after the due date without good cause shall be subject
to interest at the rate of ten percent (10%) per annum.
(B) Only disputed amounts shall be allowed to be withheld by Company, and any such
amount shall not accrue any interest during the pendency of any such dispute.
(C) The City acknowledges that all classifications and categories of retail customers of
Company shall be subject to the payment of the Franchise Fee due hereunder.
SECTION 7 -Favored Nations
(A) In the event Grantee shall hereafter accept an electric utility franchise ordinance
from any municipality providing for the payment of a franchise fee in excess of that provided for
in Section 6 above, Grantee shall notify Grantor, and Grantor reserves the right to amend this
Franchise to increase the Franchise Fee payable under this Ordinance to the same amount as the
greater franchise fee that Grantee has agreed to pay to such other municipality. Grantee's obligation
to pay such greater franchise fee to Grantor shall apply prospectively beginning with the next
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monthly Franchise Fee payment following Grantor's timely notice of its exercise of its amendment
right to which Grantee may collect such increased franchise fee from its customers. Grantee's
failure to notify Grantor of such additional payments does not limit Grantor's right to amend to
require such additional franchise fees.
(B) It is the intent and agreement of Grantor and Grantee that should applicable laws
change to expressly prohibit Company from being the sole Electric Utility allowed to use and
occupy the Rights of Way, Grantee shall not be required to pay Grantor a franchise fee under
Section 6 of a percentage greater than that paid to Grantor by any other Electric Utility or Electric
Energy Provider utilizing Grantor's Rights of Way on such Electric Utility's or Electric Energy
Provider's revenues attributable to services that are the same or substantially the same as those
perfoiined by Grantee. It is further the intent and agreement of Grantor and Grantee that Grantee
should not be placed at a competitive disadvantage by the payments required by Section 6 of this
Ordinance in the event other Electric Utilities or Electric Energy Providers provide services in
competition with Grantee without utilizing Grantor's Rights of Way.
(C) In the event applicable laws change to expressly prohibit Company from being the
sole Electric Utility allowed to use and occupy the Rights of Way, and if Grantor imposes a lesser
fee, no fee, or is unable to impose a fee on another Electric Utility or Electric Energy Provider
providing or seeking to provide services in competition with Grantee to customers within Grantor's
municipal boundaries, whether utilizing Grantor's Rights of Way or not utilizing Grantor's Rights
of Way, Grantee's Franchise Fee under Section 6 for such services shall be automatically reduced
to the lesser fee charged the other Electric Utility or Electric Energy Provider(or to zero (0), if no
fee is charged such other Electric Utility or Electric Energy Provider). In all events, City shall not
grant more favorable treatment to other Electric Energy Providers than is granted to Company
under this Ordinance; it being the intent of the parties that no future provider of electric service,
be it generation, transmission or distribution service, to customers within the corporate limits of
City shall be given a competitive advantage over Company.
SECTION 8 - Grantor Rights
The right is hereby reserved to the City to adopt such regulations as it shall find necessary
in the exercise of its police power,provided that such regulations,by ordinance or otherwise, shall
be reasonable, shall not be in conflict with the laws of the State of Florida or the lawful regulations
of any state agency possessing the power to regulate the activities of the Company, and shall not
conflict with or otherwise interfere with the benefits conferred on the Company hereunder. In the
event of a conflict between this Ordinance and any other ordinance or regulation adopted by the
City or actions (or inactions) of the City relating to Company's rights to perform work in and/or
occupancy of the Rights of Way as permitted hereunder, the rights under this Ordinance shall
govern and control to the extent allowable under Florida law. In the event of such conflict,the City
and Company agree to work together in good faith to address and resolve such conflict; provided,
however, that Company shall be permitted to continue to exercise the rights granted herein during
the resolution of any conflict.
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SECTION 9 -Work in Rights of Way
(A) The Company is hereby granted the right, authority and privilege to perform all
necessary work and excavations in said Rights of Way of the City related to its Facilities and
necessary or incidental to carrying out such rights and obligations as permitted hereunder. The
Company shall have the right to fasten, stretch and lay along the lines of said poles,conduits,pipes
and cables necessary for transmitting and conveying the electric current to be used in the
Company's business,together with all the rights and privileges necessary or convenient for the full
use including the right to trim, cut, remove and keep clear all trees and limbs near or along
Company's Facilities that may in any way endanger the proper operation or access of same.
Company represents that its tree trimming procedures meet or exceed the standards promulgated
in ANSI A300 and that its standards will continue to meet or exceed those standards unless ordered
to modify its standards by the Florida Public Service Commission or other authority to which
Company's operations are subject. The Company agrees to provide City notice of scheduled
vegetation maintenance work, including tree maintenance,pruning and/or removal, on a quarterly
basis. Moreover,the Company shall have the right to construct, erect, operate and maintain within
the City an electric system consisting of its Facilities for carrying on the Company's business;
provided that, in accomplishing these purposes, the streets of said City shall not be unnecessarily
obstructed for an unreasonable amount of time and work in connection therewith shall be done and
carried on in conformity with such reasonable rules, standards, regulations and local ordinances
with reference thereto as may be adopted by the City for the protection of the public and which are
not in conflict with or otherwise interfere with the benefits conferred on the Company hereunder.
(B) The Company will notify the City of Significant Projects within City ROW to
confirm that its designs will not unreasonably interfere with the convenient, safe and continuous
use of the public road system in accordance with Florida Statute 337.401 and, upon request of the
City, will provide construction plans and design specifications to assure compliance with the
NESC safety and design guidelines. The Company will give the City a minimum of two (2)weeks
advance notice of such Significant Projects. Significant Projects for the purposes of this section
shall mean the replacement of Facilities spanning one or more blocks in residential areas or
relocation of Facilities due to road widening within the City. This is not to be construed to grant
or imply authority upon the City to regulate the design,construction or maintenance of Company's
Facilities. Notice will not be provided for emergency or maintenance activities.
(C) To the extent practical and reasonable, Company shall locate new facilities and
relocated facilities in a manner that minimizes interference with traffic on said public Rights of
Way. In such cases where the Facilities of Company unreasonably conflict with authorized street
widening and improvements, Company shall relocate said Facilities in accordance with Florida
Statute 337.403 as it exists now and as may be amended from time to time and any other applicable
laws of the State of Florida or regulation by a state agency having the right to regulate Company.
Upon Company's request, City shall grant such additional time to Company as may be reasonably
necessary to accomplish relocation of Facilities considering the extent and complexity of the work
required.
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SECTION 10 -Indemnification
(A) The acceptance of this Franchise by Company shall be deemed an agreement on the
part of Company to indemnify City and hold it harmless from and against any and all direct
damages, claims,expenses,reasonable attorneys' fees(including appellate fees)and costs incurred
by the City arising out of the death of or bodily injury to any person, or the destruction of or
damage to any property and caused by the negligence or willful misconduct of Company, its
contractors and agents in the construction, repair, operation, or maintenance of its electric utility
Facilities hereunder. Company shall not be required to indemnify and hold harmless City for any
damages, claims, expenses, reasonable attorneys' fees and costs arising out of or resulting from
the negligence or willful misconduct of City, its employees, contractors and/or agents. In no event
shall Company be liable to City for any consequential, incidental, punitive, exemplary, multiple,
or indirect damages, lost profits or other business interruption damages, by statute, in tort
(including negligence or strict liability), in contract, or under any indemnity provision or
otherwise.Both City and Company each agree to be responsible for their own negligent acts,errors
or omissions in the performance of this Ordinance. The parties acknowledge and agree that the
City's performance under this Ordinance is subject to the provisions and limitations of Section
768.28, Florida Statutes. Nothing herein shall be construed as (1) a waiver of sovereign immunity
of the City beyond the waiver provided in section 768.28, Florida Statutes; or (2) a waiver of any
defenses of either party under Florida law. The provisions of this paragraph are solely for the
benefit of the parties hereto and are not intended to create or grant any rights, contractual or
otherwise, to any other person or entity.
(B) Company shall maintain throughout the term of this Franchise sufficient financial
resources to provide self-insurance insuring City and Company with regard to all damages set forth
in Section 10 (A) in the minimum amounts of:
(i) $1,000,000 for bodily injury or death to a person;
$3,000,000 for bodily injury or death resulting from any one accident;
(ii) $500,000 for property damage resulting from any one accident; and
(iii) $1,000,000 for all other types of liability.
(C) City acknowledges that Company provides its own liability insurance (self-
insured).
(D) Whenever Company shall cause any opening, excavation, or alteration to be made
in Right of Way in the construction, operation, or maintenance of any of its Facilities, Company
shall cause such portions of the Right of Way to be restored to the same condition in which it found
them as nearly as reasonably practicable. Additionally, if Company shall fail to restore (or
commence to restore) the area to its approximate former condition within a reasonable period of
time, but no less than thirty days after written notification by the City, the City may proceed to
restore such Right of Way as early as reasonably practicable to its original condition, and the City
shall submit a statement of the reasonable costs for this restoration to Company. Company shall
pay the City for such reasonable costs within thirty days.
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SECTION 11 -Records and Reports
(A) Company Rules and Regulations. The following documents shall be available to
City upon City's reasonable request: copies of rules, regulations, and procedures adopted by
Company that relate to Company's use of City's Rights of Way.
(B) Accounting. Company shall use the system of accounts and the form of books,
accounts, records, and memoranda prescribed by the Florida Public Service Commission or such
other applicable governing agency having jurisdiction over Company,as determined by Company.
(C) Reports. Company will submit monthly a statement of its estimated Base Revenues
for the period on which such payment is based. The acceptance of any statement or payment shall
not prevent the City from asserting that the amount paid is not the amount due, or from recovering
any deficit by any lawful proceeding, including interest to be applied at the rate set forth in Section
6 (A).
(D) Availability of Records and Reports. Company shall supply information that City
or its representatives may from time to time reasonably request relative to the calculation of
Franchise Fees, subject to the Company's statutory or regulatory obligation to keep certain records
confidential. Such records shall, on written request of City, be open for examination and audit by
City and City's representatives at Company's headquarters in St. Petersburg, Florida, during
ordinary business hours and such records shall be retained by Company for a period of three (3)
years.
(E) Audit. City may require an audit of Company's books related to this Ordinance
upon prior written notice and during Company's normal business hours not more than once every
three (3) years and then only for the preceding three (3) years. Company will reimburse City's
audit costs if the audit identifies errors in Company's Franchise Base Revenues of five percent
(5%)or more for the period audited. If an underpayment of Franchise Fees has occurred due to the
Company's error, interest will be calculated at the rate of ten percent (10%) per annum. Both the
underpayment and interest shall be paid within ninety (90) days from completion of the audit.
(F) Customer Report. In addition to City's obligations in Section 4 (B), within ninety
(90) days of the Effective Date of this Ordinance, City shall provide to Company a report in a
format acceptable to Company setting forth a list containing the new or removed street names,
known street name aliases, street addresses, street address number ranges, and applicable
directional and zip codes associated with each street name. City shall annually thereafter provide
a report identifying any changes to the address listing provided the previous year. For a range of
street address numbers located within City which consists only of odd or even street numbers, the
list must specify whether the street numbers in the range are odd or even.
SECTION 12 -Retail Wheeling
In the event the appropriate governmental authorities authorize Retail Wheeling, then either
party, if Adversely Affected thereby,may reopen this Ordinance upon thirty (30) days written notice
to the other for the sole purpose of addressing the Franchise Fee payments between Company and the
City. If the parties are unable to agree within ninety(90) days of reopening, either party may declare
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an impasse and may file an action in the Circuit Court in Orange County,Florida for declaratory relief
as to the proper Franchise Fee in light of Retail Wheeling.
SECTION 13—Severability
Should any section or provision of this Ordinance or any portion thereof, the deletion of
which would not adversely affect the receipt of any material benefits or, substantially increase the
burden of any party hereunder,be declared by a court of competent jurisdiction to be invalid, such
decision shall not affect the validity of the remainder, as a whole or any part thereof, other than
the part declared to be invalid. In the event of any such partial invalidity, City and Company shall
meet and negotiate in good faith to obtain a replacement provision that is in compliance with the
judicial authority's decision.
SECTION 14 - Governing Law and Venue
(A) This Ordinance shall be construed and interpreted according to the laws of the State
of Florida.
(B) In the event that any legal proceeding is brought to enforce the terms of this
Ordinance, the same shall be brought in the appropriate state court in Orange County, Florida, or,
if a federal claim, in the U.S. District Court in and for the Middle District of Florida, Orlando
Division.
SECTION 15—Merger
This Ordinance is the full,complete and entire understanding and agreements of the parties
as to its subject matter,and the written terms supersede all prior contemporaneous representations,
discussions, negotiations, understanding and agreements relating to the subject matter of this
agreement. The parties shall not be bound or liable for any statement, prior negotiations,
correspondence, representation, promise, draft agreements, inducements, or other understanding
of any kind or nature not set forth or provided herein.
SECTION 16—Notices
Except in exigent circumstances, all notices by either City or Company to the other shall
be made by depositing such notice in the United States Mail, Certified Mail return receipt
requested, or by recognized commercial delivery with delivery receipt requested(e.g.,FedEx,UPS
or DHL). Any such notice shall be deemed to have been given when received by the recipient
based on the delivery receipt. All notices shall be addressed as follows:
To City: To Company:
City Manager Duke Energy
Rob Frank Government& Community Relations Dept.
150 N Lakeshore Drive 299 1st Street North—FL163
Ocoee, FL 34761 St. Petersburg, FL 33701
Phone: (407) 905-3111 Phone: (727) 820-5474
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SECTION 17-Non-Waiver Provision
The failure of either party to insist in any one or more instances upon the strict performance
of any one or more of the terms or provisions of this Ordinance shall not be construed as a waiver
or relinquishment for the future of any such term or provision, and the same shall continue in full
force and effect. No waiver or relinquishment shall be deemed to have been made by either party
unless said waiver or relinquishment is in writing and signed by the parties.
SECTION 18 -Repealer and Superseding Provision
With the exception of the City's right to audit the Company's books and records relating
to the computation and remittance of franchise fees due under Ordinance 91-18, and to recover
any underpayments that were due under that franchise ordinance, this Ordinance shall supersede,
as to the rights, privileges, and obligations between City and Company, all ordinances and parts
of ordinances in conflict with the terms of this Ordinance. Ordinance No. 91-18 and any
amendments thereto, are hereby deemed null and void and/or repealed upon the effective date of
this Ordinance and none of the provisions of such repealed Ordinance No. 91-18 and any
amendments thereto shall have any further force and effect.
SECTION 19 -Dispute Resolution
The parties to this Ordinance agree that it is in each of their respective best interests to
avoid costly litigation as a means of resolving disputes which may arise hereunder. Accordingly,
the parties agree that prior to pursuing their available legal remedies they will meet in an attempt
to resolve any differences. If such informal effort is unsuccessful, then the Parties may exercise
any of their available legal remedies.
SECTION 20 - Sovereign Immunity/ Status of Grantee
(A) Nothing contained in this Ordinance and no actions or inactions by the City or its
officers, elected and appointed officials, agents and representatives shall be considered or deemed
a waiver of the City's sovereign immunity or any other privilege, immunity, or defense available
to the City or its officers, elected and appointed officials, agents, and representatives.
(B) Neither Grantee nor any of its officers, agents, employees, contractors, or sub-
contractors shall constitute agents or employees of the City for any purpose. Grantee shall have no
power or authority to bind the City to any obligation, agreement, or in any manner whatsoever.
(Signature page to follow)
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0
PASSED AND ADOPTED th r11
is i day of S(ptiernba- , 2021.
ATTEST: APPROVED:
CITY OF OCOEE, FLORIDA
\A4)(;) ) ir --,--
Melanie-Sibbitt, City Clerk Rusty Johns n, or
(SEAL)
AD2R7 .2Ri
SED 1st: la a i2nd.8 If al
3.1:3 0, 071 4th: 9 .
--- -
RE FIRST TIME lay a, , 2021.
_
READ SECOND TIME AND ADOPTED
- - Septerribir 7 ,2021.
UNDER AGENDA I l'EM NO. //
FOR USE AND RELIANCE ONLY BY THE
CITY OF OCOEE,FLORIDA; APPROVED AS
TO FORM AND LEGALITY
this -7 nt day of 15%.-Tri . , 2021.
SNUFF I ELD LOWMAN &WILSON,P.A.
By:
City A ,61:ne3,---X1,(
) ,
DUKE ENERGY FLORIDA,LLC
• Ailioaa &:utio
Melissa Seixas, State President
Duke Energy Florida,LLC
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