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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