Agenda 12/13/2011 Item #11BEXECUTIVE SUMMARY
Recommendation to approve an Escrow Agreement between, Florida Power & Light
Company ( "FPL"), the Collier County Clerk of Court, the Board of County
Commissioners and Fifth Third Bank for Phase One of the Vanderbilt Beach Municipal
Service Taxing Unit Utility Conversion Project and to acknowledge that FPL can construct
the project without the need for competitive bidding, as an allowable exception under
Section 255.20(1)(c).
OBJECTIVE: To obtain approval of an Escrow Agreement between, Florida Power & Light
Company ( "FPL "), the Collier County Clerk of Court, the Board of County Commissioners and
Fifth Third Bank for Phase One of the Vanderbilt Beach Municipal Service Taxing Unit
( "MSTU ") Utility Conversion Project and for the Board to acknowledge that FPL can construct
the project without the need for competitive bidding, as an allowable exception under Section
255.20(1)(c).
CONSIDERATIONS: At the Board's regular meeting on November 8, 2011, it approved the
execution of a Underground Facilities Conversion Agreement ( "UFCA ") with FPL for Phase
One of the MSTU's project to convert its overhead electrical distribution facilities underground.
During that meeting, the Board discussed concerns raised by the Clerk's Finance Department as
to whether it could lawfully make a $1,819,118.00 advance payment to FPL as required by the
UFCA and FPL's Florida Public Service Commission Tariff, as well as the issue of whether the
project needed to be competitively bid. Following that discussion, the Board directed the County
Attorney's Office to prepare a request for a formal opinion on those issues to the Florida
Attorney General. The Board also directed staff to continue its discussions with FPL and the
Clerk's office in an attempt to reach an informal resolution.
Shortly after the November 8th meeting an in- person meeting was scheduled with FPL, the
Clerk's office and county staff. Those discussion lead to the eventual agreement of the parties,
subject to Board approval, to resolve the advance payment dispute by establishing a four party
Escrow Agreement. The proposed Escrow Agreement requires the county to pay the
approximately 1.8 million dollars paid into a qualified public depository in accordance with
Section 280, Florida Statutes. Under the Escrow Agreement, the underground conversion project
is divided into four (4) separate phases, which upon FPL's submission of documentation
establishing acceptable completion of the particular phase, payment will reviewed and authorized
by the Clerk's office, if appropriate. The Clerk and FPL will be signatories on a qualified public
depository escrow account and there will be no authority to authorize withdrawals from that
account unless there is written confirmation from both parties.
The sole remaining issue previously raised concerns whether there is a requirement that the
project be competitively bid. There are several exceptions to competitively bidding such
projects. For example, Section 255.20(1)(c)3, Florida Statutes (2011, provides as follows:
(c) The provisions of this subsection [the competitive bidding requirements] do
not apply:
3. To construction, remodeling, repair, or improvement to a public electric or
gas utility system if such work on the public utility system is performed by
personnel of the system.
FPL has provided the County an Affidavit (see Copy Attached) attesting to the fact that the
construction project will be performed by personnel of the public utility.
The Clerk's Office has participated in and approves of the proposed Escrow Agreement and
recommendation for Board approval of this agenda item.
FISCAL IMPACT: There is no additional fiscal impact beyond the Board's prior approval of
the Underground Facilities Conversion Agreement.
GROWTH MANAGEMENT IMPACT: There is no Growth Management Impact associated
with this Executive Summary.
RECOMMENDATION: Recommendation that the Board approve the attached Escrow
Agreement between, Florida Power & Light Company ( "FPL "), the Collier County Clerk of
Court, the Board of County Commissioners and Fifth Third Bank for Phase One of the
Vanderbilt Beach Municipal Service Taxing Unit ( "MSTU ") Utility Conversion Project and
acknowledge that FPL can construct the project without the need for competitively bidding, as an
allowable exception under Section 255.20(1)(c).
Prepared By: Scott R. Teach, Deputy County Attorney
Attachment: Escrow Agreement; Affidavit of FPL