Agreement for Underground Conversions
CITY/COUNTY RIGHT-OF-WAY
AGREEMENT FOR UNDERGROUND CONVERSIONS
THIS AGREEMENT (the '&Aareemeat") is made and entered into this _ day of
, 20_ by and between e'lM:tII
GnwnIlftellt~, a Florida municipal corporation or cowlty with an addlas of
and Florida Power & light Company \F'L j, a
Florida corporation with an addresa of P.O. Box 14000, 700 Universe Boulevud, JUDO
Beach. FL 33408-0429.
WHEREAS, Local Government has requested that FPL conven (referred 10
herein u the "CINt~lIj certain overhead electric distribution facilities located withiD
the following boundaries:
(collectively, the "Exbtbt. Otwltr-J FIIdlIIJd") to WIda'wound faciJitica, iDdudiDa
bMllonnen, switch cabinets and other appurtenant facilities iDstalled above amund
(coJlectjve1y, the "U".",."". Fri1JtId') IDllhas furtbar requested that certain oftbe
uw...oDDd Facilities be placed in certain of its road riabt-of-way (uL<<tll GtINrw...
"OW'? and/or ce:rtaiD road risbt-of-way owned by or under the juri.sdiction of other
apacia rOt- ROW'. Local Government ROWand Other ROW may be rcfarcd to
coUectiveJy IS -ROW"; and
WHEREAS, the Local Government bas asreed to pay FPL the cost of such
CoIMrsion as nquired by FPL's electric tariff and Section 25-6.115 of the Florida
Administrative Code and has or will entar into a scpcalc Underground Facilities
Couversion Agreement with FPL; and
WHEREAS, FPL is willing. subject to the terms and conditions set forth in this
Apeement, FPL's electric tariff and Section 25-6.115 of the Florida Administnlive
Code, 10 place certain of the UndeT'grouod Facilities in the ROW.
NOW THEREFORE, in recognition of the foregoing premises and the COVCDIDIS
and apeements set ronh herein, and other consideration the sufficiency of which is
heRby acknowledged, intending to be legally bound hereby, the parties covenant IIld
aaree as follows:
ROW
<a) Local Govenunent covenants, represents and warrants that:
1 . CODdJtJODS PrecedeDt to Placement or Undercrou.Ild Facilities Ia
Pile 1 on
(i) Local Government has full legal right and authority to enter into
this Agreement;
(ii) Local Government bas full legal right and authority 10 take all
actions and measures necessary to fulfill Local Government's
obligations under this Agreement
(b) All applicable pennit& required for FPL to install. construct, or maiDtain
Underground Facilities in ROW must be issued on a timely basia by the
appropriate agency.
2. ReIocatioa aad ReanugelDtIIt of FPL FacUities. If the Local
Govenment or Other ROW agency, for any reason wlWsoever. requires that FPL
re1oc:atc or RaIT8Ilp, in whole or in part, any Underground Facilities (II they are to exist
.. a result of this Coavemon, or as they may later be modj tied, upgradc:d, or othanriJe
altered) 60m or within the Local Govcmmc:Dt ROW or Other' ROW. the Local
Govamnent, notwithstanding BY language to the CODtrary in any sppliClb1e pamit or
fhnthise agreemeat. and prior to any such relocation by FPL, shall provide FPL with a
..~lte location, sarisfactoryto FPL, obtain any easements that may be ~IIIY, ad
dWI pay FPL for the colts of any such relocation, adjustment or rearrangement. DOW or
in the future. Local GoVenu'Dcot shall reimburse FPL for all costs to locate. apDIIe,
pa~ or support the Underpound Facilities, whether underJlOund or above grouDd. in
the event of future construction or excavation in close proximity to the UDd..-ouud
F8Cilities. Local Govemmeat shall use its best efforts in any -III and CODIlnlctioll of
its &lure road improvClDent projects to avoid or mitigate the necessity of rclocCna or
MljuItiDs the UndergroUIld Facilities in Local Govermnent ROWand. to the exteat
reuonably practicable. in Other ROW.
3. IDdelllDky. Local Government recognizes the increased risks in placing
electrical facilities within ROW. As further consideration for FPL to enter into this
Aareemeot, Local Government asswncs aJlliability for and releues and agrees to defeDd.
WWnQjfY, protect and save FPL harmless fiom and against (i) any and aU loa of or
daD8p to property of FPL within the ROW and (ii) any BUd alllosaes, costs. damaaea.
iDjuria. liabilities, claims, demands, includiug reasonable attomeys' foes. resultina fi'om
lilY tbini pany claim or action against FPL, arising from or in connection with the
Undersround Facilities in the ROW or the relocation of same. to the extent not c:auacd by
the aepleDCe or intentional misconduct of FPL.
4. AbaudoDmeDt or Sale of Local GoVenlmeDt ROW. If the Local
Government desires to subsequently abandon or discontinue use oCthe Local GoVcrmDCDl
ROW, and ownership of the lmd is transfc::aed to a private party, the Local Government,
u a condition of and prior to any such sale, abandonment, or vacation. shall grant
FPL an easement satisfactory to FPL for the Underground FacjJjties then existiog
within the ROW or require the transferee to so grant FPL an casement satisfactory to
FPL at the time of transfer. If ownership of the Local Government ROW is traosferred
lO moIher public entity, that public entity shall take the ROW subject to the terms and
conditions of this Agreement.
s. Term. This Agreement shaU remain in effect for as Jong as FPL or any
successor or assign owns or operates the Underground Facilities placed in the ROW.
Pair 2 of 5
6. Title aDd OWDcnhip of UadergroaDd Facilities. Title and ownership of
Undergro\Dld Facilities installed by FPL as a result of this Agreement shall, at all times.
remain the property ofFPL.
7. Co.venlo. O.tllde ROW. In the event that the FPL Undergro1D1d
Facilities are not, for any reason other than the sole error of FPL, constructed within the
ROW, Local Govemment shall grant or secure, at Local Govc:rnme:nt's sole cost lad
apease, new easements or ROW grants for lhe benefit of FPL for the placement of the
tJDdergroUDCI Flcilities in these areas, aDd shall secure subordinations of lilY mortgages
aO'ec:ting these 1rac:ts to the interest of FPL.
8. Aareemeat SabJect to FPL'. Electric Tartfl'. Thia Agn:emeot i. subject
to FPL's electrie tari1f, iDcludiDa but not limited to the general rulca and rcgulatiODl fOr
cleclric service and the rules of the Florida Public Service Commission, as may be
mrieed, amended or auppJemeutcd &om time to time.
9. V_ae; Waiver or Jary TrIal. This Agreement shall be mfOR:elble in
PIIm Beach County, Florida, 8I'Id if IepI action is nccessay by either party with Japect
to the enforcernc::at of any or all of the tams or conditions herein, exclusive venue for the
adbrcc:meot of IIlDe shaJJ lie in Palm Beach County, Florida. By caterina into this
Apeemalt, FPL and the Local Govemment expressly waive any 'rights either party may
have to a trial by jury of my civillitiption related to or arising out of this Agreemem.
'Ibis Agreement sball be CODItrUed in accordaDce with the law. of the Stale OfP1oridL
10. AUoraey Fees. In the cwent it becomes necessary for either party to
institute or defend legal proc-fiT as a result of the failure of the other party to comply
wi1h the terms, covenants, or provisioDS of this Agreement, each pwty in such Utiption
IbaU bar its own cost and expenses incurred and ~tcDded in connectioa then:with,
iDc1udiag, but DOt limited to attorneys' fees and coun costs through all trial and appellate
Jcvda.
11 . MsJpmeat. The Local Govermnent shall DOt assign this Agreement
without the written conseut of FPL
12. ReeordJaa. This Agreement shall be adopted by the Local
Govcmment and maintained in the official records of Local Government for the
duration of the term of this Agreement. This Agreement also shall be recorded in
the Official Records of the County in which the Underground Facilities arc Jocated,
in the place and in the manner in which deeds are typically recorded.
13. CODOiet Between Terms or Permit or Fruclalse Aareemmt. In the
event of a conflict between the teons of this Agreement and any permit or franchise
asreemcnt entered into by LocaJ Government and FPL, the tenns of this Agreement shall
control.
P_.:-3 or~
14. Notice. Any notice, instruction or other communication to be given to
..... party hereunder shall be iD writing aDd shall be band delivered, telecapied. lent by
FedInJ Express or a comparable overnight service or by U. S. registered or certified mail.
retam I'CICeipt RqUated, postage prepaid to c:ach pany at their respective addrClSel let
fbrGa below:
As to Local Government:
With copies to:
As to FPL:
.'~..
. .~!
'II' .. oU
IN WITNESS WHEREOF, Florida Power & Light Company and Local Government
have executed this Agreement on the date first set forth above.
For LOCAL GOVERNMENT:
By:
(sipabuc)
Name:
(priat or type)
Title:
(priDE or type)
By:
(sigDltarc )
Name:
(print or type)
Title:
(prim or rype)
Appoved .. to Terms and Conditions:
(sipatureltitk)
Approved 18 to Fcmn and Legal Sufficiency:
(sipatlRlbtle)
For FLORIDA POWER & UGBT COMPANY
By:
CsiaDature)
Name:
(priar or type)
Title:
(priDE or type)
Pap 5 015
Middaugh. Bob
Subject:
Aguila. Raul
Wednesday, March 14, 20072:24 PM
tim .rose@phsislands.org
bmeltzer@km-plaza.com; ik@kapitalcorpcom; Chartrand, Jorge; Hemstreet, Tim;
HansCMueller@aol.com; Gonzalez, Jorge
RE PHS - FPL Agreement w/Jupiter Island.
From:
Sent:
To:
Cc:
Tim:
I will of course be alright with speaking with the attorney from Jupiter Island but Jorge
Chartrand and I spoke with the attorney from FPL on Monday, and his position was quite
clear regarding FPL's requirement that, as part of the proposed Agreement, the City
unconditionally indemnify and hold FPL harmless.
I had reviewed an executed copy of the Jupiter Island Agreement prior to my conference
call; they executed the Agreement as drafted by FPL. I assume they went forward with it
because they were presented with the choice (by FPL) of either signing the agreement as
is, or not going forward with the town's undergrounding project.
I made the distinction to the FPL attorney that, in the instant case, the proposed
undergrounding project was not a (per se) City project, and the City was acting more as a
facilitator, on behalf of the Homeowners' Associations, and not as the originator of the
project. This seemed to be new information to him, but nevertheless did not persuade him
to amend the broad liability provision in the Agreement.
Jorge Chartrand recommended, and I agree with him, that this issue merits further
discussion with some one higher up in FPL, who can consider the special circumstances
involved with this undergrounding project. From an administrative perspective, he also
shares my concerns regarding the potentially broad liability that the City may be exposed
to. By agreeing to broadly hold FPL harmless, as proposed, the City may potentially be
waiving its sovereign immunity and limitations of liability under Florida law (in the
event of a claim resulting from damage to property or personal injury). Additionally, to
mitigate its potential exposure, the City would probably have to take out an additional
insurance policy(ies) or require the Homeowners' Associations to maintain a policy, naming
the City as an additional insured (which would have to be updated on a regular basis) .
I have to admit that I was a bit surprised that FPL would require governmental entities
initiating undergrounding projects to be placed in the untenable position of having to
broadly indemnify FPL, as. a precondition of FPL's proceeding with these type of projects.
I got some story from FPL that this was a requirement that came about in the last few
years as a result of the recent active hurricane seasons and the consequent desire of
communities to underground. In my opinion, it's a way for FPL to insulate itself from
liability while placing the burden on public entities with limited resources; it's
borderline coercive. That being said, and knowing how important this project is to the
homeowners and how long they have been pursuing it, I hope that the City Administration
can initiate further discussions with the policymakers at FPL, and find a solution that is
satisfactory to everyone.
Please don't hesitate to contact me should you have any question or comments regarding the
above. On a personal note, I know how long, and how diligently, you have pursued the
undergrounding project on behalf of the homeowners.
Thank s ,
Raul
-----Original Message-----
From: Tim Rose [mailto:tim.rose@phsislands.org]
Sent: Wednesday, March 14, 2007 8:01 AM
To: Aguila, Raul
Cc: bmeltzer@km-plaza.com; ik@kapitalcorp.com; Chartrand, Jorge; Hemstreet, Tim;
HansCMueller@aol.com
subjp.ct: PHS - FPL Agreement w/Jupiter Island
Raul-
We have spoken to the Attorney from Jupiter Island who was involved in the FPL/Town of
Jupiter Island negotiations concerning their Undergrounding project. He would like to
speak to you concerning his observations in dealing with FPL on this agreement. It may
present some insight in the process. As we know, FPL can be challenging at times. His
name is Shef Right and you can reach him at 850-933-2016.
Thank you for your work on this issue. We hope to get this issue settled soon.
Tim
Tim W. Rose, Jr.
Executive Director
Palm-Hibiscus-Star Islands Association
152 Palm Avenue
Miami Beach, FL 33139
(3 05) 299 - 2 6 17
-----Original Message-----
From: Hans Mueller [mailto:HMueller@fnbsm.com]
Sent: Tuesday, March 13, 2007 5:58 PM
To: Tim Rose
Subject: FW: Please Call Schef Right Attorney / Jupiter Island UG
Tim,
I am forwarding the name of Schef Right, the attorney for Jupiter Island.
He would like to speak with the attorney from the City of Miami Beach and discuss his
observations in dealing with FP&L. You may want to pass this name and phone number on to
the appropriate individual at the City as you see fit.
Hans
From: Helen Ramos
Sent: Friday, March 02, 2007 2:26 PM
To: Hans Mueller
Subject: Please Call Schef Right Attorney / Jupiter Island UG
850-933-2016
Helen Ramos
First National Bank of South Miami
5750 Sunset Drive
South Miami, Fl 33143
305-662-5416
email hramos@fnbsm.com
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