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1081 Franchise Natural Gas DENIED -4 ORDINANCE DENIED AT FINAL READING F ORDINANCE NO. 1081 AN ORDINANCE GRANTING TO FLORIDA PUBLIC UTILITIES COMPANY, • ITS SUCCESSORS AND ASSIGNS, A NON-EXCLUSIVE FRANCHISE FOR A PERIOD OF 30 YEARS TO CONSTRUCT, OPERATE, MAINTAIN, OWN AND TRANSPORT IN THE CITY OF OKEECHOBEE, FLORIDA,WORKS FOR THE MANUFACTURE, TRANSMISSION, DISTRIBUTION, TRANSPORTATION, AND SALE OF GAS, INCLUDING NATURAL, MANUFACTURED OR MIXED GAS; PROVIDING SEVERABILITY AND AN EFFECTIVE DATE UPON FINAL PASSAGE. WHEREAS, the City of Okeechobee (hereinafter referred to as the "City") exercises control over all publicly dedicated rights-of-way, streets, alleys, bridges, easements and other public places located within the limits of the City; and WHEREAS, Florida Public Utilities Company, (hereinafter referred to as the "Company") has requested permission from the City to erect, construct, operate and maintain a gas system; to import, transport, sell and distribute gas, whether natural, manufactured or mixed within the City; and for these purposes to establish the necessary facilities and equipment and to lay and maintain gas mains, service pipes and any other appurtenances necessary to the sale, transportation and distribution of gas in and along the streets, alleys and other public ways of the City; and WHEREAS, the aforesaid rights-of-way to be used by the Company are valuable public properties acquired and maintained by the City at great expense to the City's taxpayers, and the right to use said rights-of-way is a valuable property right without which the Company would be required to invest substantial capital and property acquisition costs; and WHEREAS, the City desires to insure that the aforesaid rights-of-way used by the Company are promptly restored to a safe and secure condition to protect the health, safety and welfare of the citizens and residents of the City; and WHEREAS, state statutes and City ordinances authorize the City to grant nonexclusive Franchises for the purposes set forth herein; NOW, THEREFORE, BE IT ENACTED BE IT ENACTED BY THE CITY COUNCIL OF THE CITY OF OKEECHOBEE, FLORIDA; presented at a duly advertised public meeting; and passed by majority vote of the City Council; and properly executed by the Mayor or designee, as Chief Presiding Officer for the City: 1. Grant of Authority. There is hereby granted by the City to the Company the non- exclusive right, privilege, franchise to erect, construct, operate and maintain a gas system and to import, transport, sell and distribute gas, whether natural, manufacture or mixed, within the City, and for these purposes to establish the necessary facilities and equipment and to lay and maintain gas mains, service pipes and any other appurtenances necessary to the sale, transportation and distribution of gas in and along the rights of ways, streets, alleys, bridges, easements and other public way of the City. 2. Non-exclusive Grant. The right to use and occupy said rights of ways, streets, alleys, bridges, easements, and public ways and places for the purposes herein set forth shall not be exclusive, and the City reserves the right to grant a similar use of said rights of ways, streets, alleys, bridges, easements, or other public places and ways, to any person and/or entity at any time during the period of this franchise. This franchise shall grant the privilege of carrying on the business in all of the City or in part of the City,with no promise that there will be no competition. In the event the City grants a franchise to 111 the competitor of Company, the grant shall not interfere with Company's rights granted hereunder, including physical location of improvements, except as to matters that occur as a result of competition. The City does hereby agree that during the term of this franchise it shall not compete Ordinance No. 1081 Page 1 of 6 with Company unless it becomes necessary to do so in emergency circumstances. The City shall tender proof of said emergency to the Company upon request. 3. Compliance with Applicable Laws and Ordinances. The Company shall, at all times, during the life of this franchise, be subject to all lawful exercises of police power by the City, and to such reasonable laws, rules and regulations as the City shall hereafter, by resolution or ordinance provide, including, but not limited to, any ordinances pertaining to excavation, reconstruction and development requirements and standards all of which shall not be in conflict or inconsistent with Promulgated Safety Rules and Regulations of the Florida Public Service Commission and Federal and/or Florida Departments of Transportation. 4. Company Liability - Indemnification. It is expressly understood and agreed by and between the Company and the City that as additional consideration for the grant of this non-exclusive franchise the Company shall fully indemnify and hold harmless the City its officers, agents and employee from all claims, debts, liabilities, demands, interests, court costs, attorney's fees (including bankruptcy and appellate attorney'fees)to itself or any third person, taxes (including but not limited to any real, personal and sales taxes attempted to be assessed and/or assessed as a result of this Franchise Agreement),whether for bodily injury,death, property damage or otherwise, in any way arising out of the operations of Company or of its gas system in the City contemplated by this Agreement and/or related work upon Company's gas system whether directly authorized by this Agreement or not. The City shall notify the Company's representative in the City within thirty (30) days after the presentation of any claim or demand, either by suit or otherwise, made against the City on account of any neglect, default or misconduct, as aforesaid on the part of the Company. Provided further, nothing herein is intended to act as a waiver of the City's rights, privileges, and immunities under the doctrine of "sovereign immunity" and/or limits of liability set forth in section 768.28 of the Florida Statutes regardless of whether any such obligations are based in tort, contract, statute, strict liability, and negligence, product liability or otherwise.The provisions of this section shall survive this Agreement. 5. Service Standards. The Company shall maintain and operate its system and render efficient service in accordance with the rules and regulations as are, or may be, set forth by the Florida Public Service Commission and/or other agency and/or entity with jurisdiction to regulate and/or promulgate rules regarding Company's operations. In the event Company or any aspect of the natural gas trade, as contemplated hereunder, is deregulated, the Company shall maintain and operate its system and render efficient service in accordance with the rules and regulations as are, or may be, promulgated by the City. In the event the City has not promulgated rules and regulations, at the time of deregulation, then, the Company agrees to maintain and operate its system in compliance with the rules and regulations by which they are governed prior to deregulation until such time as the City has had an opportunity to promulgate rules and regulations or pass an ordinance governing those items regulated by the Florida Public Service Commission, governing service standards, safety standards and quality controls. In the event of deregulation, the City does hereby agree, it will not regulate rates. 6. Conditions on Construction, Location, Restoration, and Relocation. All pipes, mains, conductors an other appurtenances, including connection with service pipes, hereafter laid in streets, alleys, avenues, or other public places, shall be laid under the supervision of the City Administrator or his designee. Company shall provide reasonable egress from and ingress to abutting property. Notification of said construction, location, restoration or relocation of Company facilities shall be furnished to the City Engineer or his designee by delivery of a letter accompanied by plan drawings showing the proposed work. Said notification shall be submitted no less than three (3) working days prior to commencement of work, with no other application, permit, plan review fees, inspection fees or approval being necessary and at no cost to Company. As soon as practical, but no more than 15 working days after completion of the work, the Company shall submit as-built drawings to the City Engineer or his designee, completing the notification/approval process for said work. Ordinance No. 1081 Page 2 of 6 All pipes, mains, conductors and other natural, artificial or mixed gas equipment and apparatus, including connections with service pipes, laid or placed by the Company shall be so located in rights-of -way, streets, alleys, avenues, bridges, easements or other public places in the City so as not to obstruct, disturb or interfere with any traffic, • water flow, water pipes, sewers, drains, catch basins, pavement, sidewalk, driveways, or any other structures installed or any other function of said structures of the delivery of municipal services by the City. The Company shall, when practicable, avoid interfe with the use of any right of way, street, alley, bridge or other highway where the pavement or surface of the streets would be disturbed. In the event drain, sewer, catch basins, water pipes, pavements or other like improvements or the function of said improvements are impaired or injured by such construction, location, restoration or relocation, the Company shall forthwith repair the damage or dysfunction at its sole cost and expense, to the condition prior to said damage or dysfunction. In this regard, the City shall give written notice to Company pursuant to paragraph 19 hereof, of deficiencies that need to be cured by Company. Said notice shall set forth a reasonable period of time, under the circumstances, in which the Company shall cure said deficiency. In default thereof, the City may repair such damage or dysfunction and charge the cost thereof to the Company and collect the same from the Company. In the event at any time during the period of this franchise the City shall lawfully elect to alter, or change the grade of any street, alley or other public way, the Company, upon reasonable notice by the City, shall remove, relay and relocate its mains or service pipes, manholes and other gas fixtures at its own cost and expense. Company agrees to comply with all validly enacted policies, resolutions and ordinances relating to City landscape buffering and other such design and development standards. That for and during the period of this franchise, the City, through its designated agent, shall at all reasonable times, and at the expense of the City, have the right to inspect any and all gas lines belonging to and operated by the Company. 7. Right of Way Not Warranted. The City does not warrant any right, title or interest of any street, alley, or other public way in existence, or hereafter acquired, used by the Company or as may be used by the Company in the future. In the event that the City closes, vacates or otherwise abandons any street, alley or other public way, City shall provide to Company an acceptable easement for Company-owned facilities installed within said street, alley or other public way. 8. Annexation or Contraction. Company agrees that the geographical limits of the franchise area are subject to expansion or reduction by annexation and contraction and that Company may or may not have vested rights in annexed or contracted areas, as may be governed by applicable law. Upon the annexation of any territory by the City, the right, privilege and permit hereby granted shall extend to the territory so annexed, when permitted by law, and all facilities owned, maintained or operated by said Company, located within the territory so annexed upon any of the streets, alleys, or public ways situated in such annexed territory, shall thereafter be subject to all of the terms herein as permitted by law. 9. Approval of Transfer. The Company shall not sell or transfer its system (that portion which is subject to this ordinance) to another person and/or entity, nor transfer any rights under this franchise to another person and/or entity without approval by the City Administrator and said approval will not be unreasonably withheld. In the event the City Administrator does not act upon the issue of approval within forty-five (45) days from presentation, then approval shall be deemed to have been granted. Provided, that no sale or transfer shall be effective until the vendee, assignee, or lessee has filed in the office of the City Clerk an instrument, duly executed, reciting • the fact of such sale, assignment or lease, accepting the terms of the franchise, and agreeing to perform all the conditions thereof. 10. City Rights and Franchise. The right is hereby reserved to the City to adopt, in addition to the provisions herein contained and existing applicable ordinances, such Ordinance No. 1081 Page 3 of 6 additional regulations as it shall find necessary in the exercise of the police power, provided that such regulations, by ordinance or otherwise, shall be reasonable, and not conflict with the rights herein granted, and shall not conflict with the laws of the State of Florida. The City shall have the right to supervise all construction, location, restoration, relocation and installation work performed subject to the provisions of this ordinance and to make such inspections as it shall find necessary to insure compliance with governing ordinances and Florida Public Service Commission regulations. The failure on the part of Company to comply in any substantial respect with any of the provisions of this ordinance and franchise agreement granted hereunder shall be grounds for revocation of this franchise by the City Commission. Prior to revocation, City shall deliver a written notice, to Company, pursuant to Paragraph 19 hereof, specifying the non-compliance, including a notice that, if the non-compliance is not corrected within a stated number of days, which shall be reasonable under the circumstances, the City shall be permitted to revoke this franchise by reason thereof. Upon the revocation of this franchise by the City Commission, or at the end of the term of this franchise, the City shall have the right to determine whether the Company shall continue to operate and maintain its system pending the decision of the City as to the future maintenance and operation of the system. Nothing in this Franchise shall be construed to prevent the City from acquiring company occupied and/or owned real estate through the exercise of its powers and rights under eminent domain and/or through condemnation proceedings. However, nothing in this Franchise shall be construed as the Company's agreement or acquiescence in any such attempted condemnation by the City. 11. Payment to the City. In consideration for the granting of this Franchise, the Company, its successors and assigns, shall pay to the City, and its successors, an annual amount which will equal 6 percent(6%)of Company's annual gross operating revenue taken in and received by it for providing all aspects of natural gas service to its customers within the corporate limits of the City, as now or hereafter constituted. The Company shall pay the franchise fee provided by this section quarterly on January 1, April 1, July 1 and October 1 of each year during the term of this franchise. Any payments not made by the Company within 20 days after the date said payment is due, shall thereafter be payable with interest at the highest rate allowable by law. It is specifically agreed that the aforementioned revenue shall include only the revenue from "residential" and "commercial" customers' and shall exclude revenues from "interruptible," "industrial" and "other" customers, until and unless a franchise or utility tax is imposed on such interruptible, industrial or other customers, either independently or collectively, of all other competing utility services in the City's corporate limits, including, without limitation, the imposition of franchise or utility taxes on all grades of fuel oils or gases used for "interruptible" or "industrial" or "other" customers at a relatively equal basis on the total of franchise at 6 percent (6%) as contemplated hereunder plus utility taxes as levied on natural gas pursuant to statute and/or rule. Except as otherwise provided for within this Ordinance, the Company shall at all times continue to be subject to and shall pay to the City all legally authorized public service taxes, ad valorem taxes (intangible, personal, real), occupational taxes, and any and all other valid tax, levied or imposed by the City. Such charges and fees shall include but not be limited to licensing, permit fees, development review and inspection fees and all other such fees including fees, charges, taxes and/or assessments validly adopted and/or imposed during the term of this Franchise Agreement. 12. Records and Reports. The City shall have access, at all reasonable business hours, to all of the Company's plans, contracts, engineering, accounting, finance, statistical, customer and service records relating to performance under this ordinance. As well, the City shall have access to all records on file with the Florida Public Service Commission. The Company does hereby acknowledge they have a statutory right to maintain confidentiality with regard to certain items filed with the Florida Public Service Commission. The Company does hereby permit the disclosure to City of any and all records and reports filed with the Florida Public Service Commission, which may be Ordinance No. 1081 Page 4 of 6 relevant to this ordinance, as may be requested by the City. The City shall maintain confidentiality of said records and reports provided the City is legally permitted to do so. In accordance herewith, the Company does hereby authorize the Florida Public Service Commission to furnish full and complete records and reports to the City, as • may, from time to time, be requested by the City. As well, Company shall provide directly to the City an annual summary report showing gross revenues received by the Company from its operations within the City during the preceding fiscal year and such other information as the City shall request with respect to properties, quality control, and expenses related to the Company's service within the City. 13. Effective Date and Term of Franchise. The franchise and rights herein granted shall take effect and be in force from and after the first day of the month following the final passage hereof, as required by law, and upon filing of the acceptance by the Company with the City Clerk and shall continue in force and effect for a term of thirty (30) years after the effective date of this franchise. This ordinance shall take effect upon passage, provided that within twenty (20) days of said date, the Company shall signify its unqualified acceptance of this franchise, in writing. Provided, that if the acceptance is not filed within twenty(20) days, the provisions of this franchise shall be null and void. 14. Publication Clause. The Company shall assume the cost of publication of this Franchise as such publication is required by law. A bill for publication cost shall be presented to the Company by the City Administrator upon the Company's filing of acceptance and shall be paid at that time. 15. Penalties. Provided, that any violation by the Company, its vendee, lessee or successor of the provisions of this franchise or any material portions thereof, or the failure to promptly perform any of the provisions thereof, shall be cause for the forfeiture or revocation of this franchise and all rights hereunder by the City after written notice to the Company, Company's failure to cure and continuation of such violation or failure. 16. Law Governing and Venue. This ordinance and the Franchise Agreement granted hereunder shall be interpreted under and governed by Florida law. Venue for any actions arising out of this Franchise Agreement shall be in the State Courts in and for Polk County, Florida. 17. Entire Agreement. This Franchise Agreement and any additional or supplementary exhibits or schedules incorporated herein by specific reference contain all the terms and conditions agreed upon by the parties hereto, and no other agreement, oral or otherwise, regarding the subject matter of this Agreement or any part thereof shall have any validity or bind any of the parties thereto. 18. Attorney's Fees and Expenses. Except as otherwise provided for herein, the City and the Company hereto agree that if litigation becomes necessary to enforce any of the obligations, terms and conditions of this franchise, the prevailing party shall be entitled to recover a reasonable amount of attorney's fees and court costs, including fees and costs on appeal, from the non— prevailing party. 19. Notices. All notices by either the City or the Company to the other shall be made by depositing such notice in the certified mail of the United States of America, return receipt requested, and such notice shall be deemed to have been served on the date of such depositing in the certified mail unless otherwise provided except in exigent circumstances in which case hand delivery will be acceptable. All notices shall be addressed as follows: to Company: Florida Public Utilities Company 401 South Dixie Highway West Palm Beach, Florida 33401 • Attention: Vice President- Regulatory as to City: City of Okeechobee Office of the City Administrator 55 SE 3rd Avenue Ordinance No. 1081 Page 5 of 6 Okeechobee, Florida 34974 Notice shall be provided to the above-named addressees unless directed otherwise in writing by the City or the Company. 20. Non-waiver Provision. The failure of any 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 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. 21. Severability. If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held invalid or unconstitutional by any court of a competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and such holdings shall not affect the validity of the remaining portions hereof. 22. Scrivener's Errors. Sections of this Ordinance may be renumbered or relettered and the correction of typographical and/or scrivener's errors which do not affect the intent may be authorized by the City Administrator or his designee, without need of public hearing, by filing a corrected or recodified copy of same with the City Clerk. 23. Ordinances Repealed. All ordinances and parts of ordinances in conflict with the provisions of this ordinance are hereby repealed INTRODUCED for first reading and set for final public hearing on this 3rd of January, 2012. N/A James E. Kirk, Mayor ATTEST: N/A Lane Gamiotea, CMC, City Clerk PASSED AND ADOPTED after Second and Final Public Hearing this 17th day of January, 2012. N/A James E. Kirk, Mayor ATTEST: N/A Lane Gamiotea, CMC, City Clerk REVIEWED FOR LEGAL SUFFICIENCY: N/A John R. Cook, City Attorney Ordinance No. 1081 Page 6 of 6