Loading...
Franchise Agmt/Natural Gas/Ord 1088 GAS FRANCHISE AGREEMENT THIS AGREEMENT is made this 21st day of August, 2012 by and between the City of Okeechobee, Florida (hereinafter "CITY" or "GRANTOR") and Florida Public Nft,,, Utilities Company (hereinafter "GRANTEE" or "COMPANY"), a Florida for-profit corporation, located at 1641 Worthington Road, Suite 220, West Palm Beach, Florida 33409. WHEREAS, COMPANY has applied for a nonexclusive Franchise to operate and maintain a natural gas distribution system within and through the CITY; and WHEREAS, the CITY finds that expanding the opportunity for its citizens to obtain natural gas will promote the general welfare of the community; and WHEREAS, the Florida Statutes and City ordinances authorize the CITY to grant nonexclusive Franchises; and WHEREAS, the CITY deems it to be in the public's interest to promote the welfare and advancement of the community through a gas franchise. NOW, THEREFORE, it is ordained before the City Council for 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: SECTION 1. AUTHORITY: This Agreement is made pursuant to the authority of Florida Statutes and City ordinances. SECTION 2. DEFINITIONS: For the purposes of this Franchise, the following terms, phrases, words and their derivations shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future words, in the plural include the singular, and words in the singular include the plural. Words not defined shall be given their common and ordinary meaning. A. "Customer" shall mean any person, firm, public or a private corporation, or governmental agency served by the COMPANY within the corporate limits of the CITY. B. "CITY" shall mean the City of Okeechobee, Okeechobee County, Florida, its successors and assigns C. "COMPANY" shall mean Florida Public Utilities Company, a Florida for-profit corporation, its successors and assigns. D. "Gas" or "Natural Gas" shall mean natural gas and/or manufactured gas and/or a mixture of gases which is distributed in pipes and measured by meter on the Customer's premise. It shall not mean propane gas or liquefied petroleum gas (commonly referred to as "bottled gas") or any other fuel that is typically delivered by truck and stored in tanks. E. "Gross Revenues" shall mean all revenues (as defined by the Florida Public Service Commission) received by the COMPANY from any Customer from the sale or delivery or transportation of gas within the Franchise Area. Not included in this definition shall be revenue derived from the sale or delivery or transportation of gas to Large Volume Service Customers and Large Volume Transportation Service as defined in Company's Natural Gas Tariff as filed with and Approved by the FPSC. Ordinance No. 1088 Natural Gas Franchise Agreement — Page 1 of 15 F. "Large Volume Service Customers and Large Volume Transportation Service" shall mean an end user that has a minimum annual gas consumption of fifty-thousand (50,000) therms. G. "Facilities" or "equipment" shall mean COMPANY pipe, pipeline, tube, main, service, trap, vent, vault, manhole, meter, gauge, regulator, valve, conduit, appliance, attachment, structure or structures, and appurtenances used or useful in the distribution of gas, located `"'°F or to be located in, upon, along, within, across, or under the public streets, alleys, waterways, easements and other public places of the CITY. H. "Franchise Agreement" shall mean this document executed by the CITY and COMPANY giving the Company the authority to operate the non-exclusive franchise within the CITY. I. "FPSC" shall mean the Florida Public Service Commission or any successor agency. J. "Distribution System" shall mean any and all transmission pipelines, main pipelines, together with all necessary and desirable appurtenances as may be reasonably necessary for the sale and distribution of Natural Gas for the public and private use of Customers within the corporate limits of the CITY. K. "Construct or construction" shall mean removing, replacing, and repairing existing pipeline(s) and/or facilities and may include, but is not limited to, digging and/or excavating for the purposes of removing, replacing, and repairing existing pipeline(s) and/or Facilities. L. "Franchise Area" shall mean the area within the jurisdictional boundaries of the CITY, including any areas annexed by CITY during the term of this Franchise, in which case the annexed area shall become subject to the terms of this Franchise. M. "Hazardous Substance" shall mean any hazardous, toxic, or dangerous substance, material, waste, pollutant, or contaminant. The term shall specifically include natural gas, petroleum and petroleum products and their byproducts, residue, and remainder in whatever form or state. The term shall also be interpreted to include any substance which, after release into the environment, will or may reasonably be anticipated to cause death, disease, injury, sickness, illness, behavior abnormalities or, genetic abnormalities. N. "Abandonment", "Abandon" shall mean permanent cessation of use of the Distribution System for the purposes of supplying natural gas with no intention to resume or reclaim. There is irrefutable presumption of abandonment where COMPANY ceases use of the Distribution System for the purposes of supplying natural gas for period of six (6) consecutive months, unless otherwise agreed to by the CITY. O. "Ordinance" shall mean Ordinance No. 1088, which incorporates the terms and conditions of this Franchise. SECTION 3. GRANT: A. CITY hereby grants to COMPANY, a corporation organized and existing under and by virtue of the laws of the State of Florida, and which is authorized to transact business within the State of Florida, its successors and assigns (as provided herein), the right, privilege, authority and Franchise to construct, operate and maintain its existing pipeline(s) and/or facilities necessary for the transportation, distribution and handling of natural gas within the Franchise Area. B. This Franchise is non-exclusive. CITY reserves all rights to its property, including, without limitation, the right to grant additional Franchises, easements, licenses and permits to Ordinance No. 1088 Natural Gas Franchise Agreement - Page 2 of 15 others to use the rights-of-way and public properties, provided that the CITY shall not grant any other Franchise, license, easement or permit that would unreasonably interfere with COMPANY'S permitted use under this Franchise. This Franchise shall in no manner prohibit the CITY or limit its power to perform work upon its rights-of-way, public properties or make all necessary changes, relocations, repairs, maintenance, establishment, improvement thereto, or from using any of the rights-of-way and public properties, or any part of them, as the CITY may deem fit from time to time, including the dedication, establishment, maintenance and improvement of all new rights-of-way and other public properties of every type and description. C. This Franchise is conditioned upon the terms and conditions contained herein and COMPANY'S compliance with all applicable federal, state or other regulatory programs that currently exist or may hereafter be enacted by any regulatory agencies with jurisdiction over the COMPANY. D. By granting this Franchise, the CITY is not assuming any risks or liabilities therefrom, which shall be solely and separately borne by COMPANY as otherwise provided herein. COMPANY agrees and covenants to, at its sole cost and expense, take all necessary and prudent steps to protect, support, and keep safe from harm its pipeline(s) and/or facilities, or any part thereof, when necessary to protect the public health and safety. E. This Franchise is only intended to convey a limited right and interest. It is not a warranty of title or interest in CITY'S rights-of-way or other public properties. None of the rights granted herein shall affect the CITY'S jurisdiction over its property, streets or rights-of- way. If CITY should close any street, right-of-way or alleyway in which COMPANY has pipelines and adjoining landowner or the Hamrick Family Trust should claim some right or interest, then COMPANY shall resolve that issue and hold CITY harmless therefrom. F. The limited rights and privileges granted under this Franchise shall not convey any right to COMPANY to install any new pipeline(s) and/ or facilities without the express written consent of CITY. G. The CITY may, at its discretion each year of the term of this Franchise, hold evaluation sessions upon reasonable notice to the COMPANY. All evaluation sessions shall be open to the public. Topics which may be addressed or special evaluation session may include, but not limited to, system performance, COMPANY'S compliance with this Franchise, customer service and complaint response, customer privacy, franchise fees, penalties, possible applications of new technologies on the system, judicial and FPSC filings, and line extensions. As a result of an evaluation session, the CITY or COMPANY may propose an amendment to the terms of this Franchise, COMPANY and the CITY will, in good faith, review the terms of the Proposed Modification and consider amending this Franchise accordingly, provided that any improvements are contained in the Proposed Modification can be instituted through technology which has been demonstrated to be feasible for its intended purpose, in an operationally workable manner, and in a manner which is normally profitable with respect to each such improvement within the remaining term of the Franchise. SECTION 4. TERM: The Franchise hereby granted shall be for a period of thirty (30) years from the effective date of this Agreement. During the term of the Franchise the CITY shall have favored nation status that will serve to automatically adjust the Franchise fee due the CITY to the highest rate given by COMPANY. Furthermore, rate structures and/or rates given by company to other �.., franchisees shall be provided to the CITY upon written request. Ordinance No. 1088 Natural Gas Franchise Agreement - Page 3 of 15 SECTION 5. TERMINATION: The CITY reserves the right to terminate, at any time, any Franchise granted herein, and to rescind all rights and privileges pursuant to the procedures set forth in Section 28 herein, in the event that: A. The COMPANY has not fully complied in some material respect with any provision of this Franchise Agreement, or any supplemental written agreement entered into by and Nkiroo between the CITY and the COMPANY. B. The COMPANY is expected to perform in good faith and to provide natural gas services to feasible parcels with the Franchise area within a reasonable timeframe. The CITY reserves the right to terminate the Franchise if COMPANY has not commenced construction within the Franchise area within one (1) year of the approval of this Agreement. C. The COMPANY has made a material, false statement in the application for the franchise, knowing it to be false. D. The COMPANY becomes insolvent, enters into receivership or liquidation, files for bankruptcy, is unable or unwilling to pay its debts as they mature, or is in financial difficulty of sufficient consequence so as to jeopardize, by order of the FPSC, the continued operation of the natural gas system, unless the COMPANY is in due process of contesting such debt. E. The COMPANY knowingly or intentionally violates any FPSC order or ruling, or the order or ruling of any other governmental body having jurisdiction over the COMPANY which materially affects COMPANY'S ability to safely provide service to the CITY. F. In the event either party breaches any material provision of this Agreement, the other party may, at its option, provide written notice to the party in breach to remedy such breach. If the said breach is not remedied within thirty (30) days after receipt of the written notice or such further time as may be reasonably required by the party in breach using best efforts on a commercially reasonable basis to remedy the breach, the party not in breach may proceed with dispute resolution as provided in this Agreement. Provided, however, that no such termination shall take effect if the reasonableness or propriety thereof is challenged by COMPANY pursuant to Section 28 herein and a court of competent jurisdiction (with right of appeal in either party) shall have found that COMPANY has failed to comply in a material respect with any of the provisions of the Franchise Agreement. COMPANY will initiate corrective action within 30 days and complete the necessary corrections in a timely manner consistent with industry standards. SECTION 6. ABANDONMENT: In the event COMPANY abandons the Distribution System, the CITY may advertise and seek another COMPANY to operate the system. Upon abandonment, at the request of the CITY, the COMPANY shall seal all abandoned gas lines and transfer ownership of the Distribution System to the CITY at no charge and submit to the CITY an instrument in writing, subject to the approval of the City Attorney, affecting such transfer. If the COMPANY does not desire that the Distribution System be transferred to the CITY, the CITY will require the COMPANY to remove the abandoned Distribution System and restore the site(s), for which COMPANY shall have one hundred eighty (180) days unless the CITY agrees to additional time. I t shall be the sole responsibility of the COMPANY to purge the unused gas or natural gas product from any and all of COMPANY'S Distribution System. SECTION 7. ASSIGNMENT: Nallf The COMPANY, upon prior notice to and approval by the CITY, shall have the right and authority at its option, to assign lease, or otherwise alienate and transfer this Franchise Ordinance No. 1088 Natural Gas Franchise Agreement — Page 4 of 15 Agreement in connection with the lease or sale of the Distribution System all rights conferred upon it by this Franchise Agreement to any entity after first submitting a request to transfer to the CITY and paying a nonrefundable transfer fee of twenty five hundred dollars ($2,500.00) to the CITY. The assignee of such rights, by accepting such assignment, shall become subject to the terms and provisions of this franchise. Notwithstanding the foregoing, and without payment of a transfer fee, the COMPANY may, at its option alienate and transfer this �...r Franchise Agreement in connection with the COMPANY'S merger and consolidation with any other entity or pledge or mortgage such Franchise in connection with the physical property owned and used by the COMPANY in the operation of the Distribution System for the purpose of securing payment of monies borrowed by the COMPANY, provided that any successor-in- interest to the Distribution System agrees to be bound by the terms of the Franchise Agreement. SECTION 8. CITY COVENANT: As a further consideration of this Franchise Agreement, the CITY covenants and agrees that it will not, during the term of this Franchise Agreement or any extension thereof, engage in the business of distributing or selling natural gas within the corporate limits of the CITY, as modified, during the term of this Franchise Agreement. SECTION 9. USE OF STREETS: The Distribution System shall be erected, placed, or laid in such manner as will, consistent with necessity, least interfere with other public uses of said public streets, alleys, waterways, easements and other public places of the CITY, and said public streets, alleys, waterways, easements and other public places of the CITY shall not be unnecessarily obstructed, and before, except in an emergency situation, the COMPANY makes any excavation or disturbs the surface of any of the public streets, alleys, waterways, easements and other public places of the CITY, it shall make application for a permit to the appropriate CITY authority and shall with due diligence and dispatch, place such public streets, alleys, waterways, easements and other public places of the CITY in as good condition and repair as before such excavation or disturbance was made, and in default thereof the CITY, or its subcontractor, may make such repairs and charge the reasonable cost thereof to the COMPANY and collect the same from it. To the extent consistent with Florida Law, the COMPANY hereby agrees to abide by all the rulesand regulations and ordinances which the CITY has passed or might pass in the future, and further agrees to abide by any established policy which the CITY or its duly authorized representative has passed, established, or will establish; provided, however, it is not intended hereby that the CITY shall have the right of breaching the terms of this Franchise Agreement other than as herein provided. SECTION 10. MAINTENANCE: All such components of the Distribution System of the COMPANY located within the CITY shall be installed and maintained in accordance with accepted good practice and in accordance with the orders, rules, and regulations of the Florida Public Service Commission or other regulatory body having jurisdiction over the COMPANY. SECTION 11. LAYING OF PIPE: All components of the Distribution System shall be laid consistent with all applicable codes, rules, regulations and laws, specifications contained in CITY permits. SECTION 12. CONSTRUCTION WORK: Prior to construction and installation of the gas distribution system, COMPANY shall apply to the CITY for a site plan review through the Technical Review Committee as provided for in City Code Section 70-102. As part of the site plan application the COMPANY shall provide, among • other items, preliminary plans describing the extent of the project and the methodology that the COMPANY plans to use for installation, including a timeline for completion of same. The CITY reserves the right to permit to be laid electric conduits, water and gas pipes and lines, Ordinance No. 1088 Natural Gas Franchise Agreement — Page 5 of 15 cables, sewers, and all appurtenances associated therewith, including but not limited to, curbs and gutters, and to do and permit to be done any work that may be deemed necessary or proper by the CITY or other governmental body having jurisdiction in, across, along, or under any of the public streets, alleys, waterways, easements and other public places of the CITY. Whenever, by reason of establishing a grade or by reason of changes in the grade of any street, or by reason of the widening, grading, paving, or otherwise improving present or future public streets, alleys, waterways, easements and other public places of the CITY, or in the location or manner of construction of any water pipes, electric conduits, sewers, or other structure, it shall be deemed necessary by the CITY or other governmental body to alter, change, adapt, or conform any portion of the Distribution System of the Company hereto, such alterations, or changes, shall be made by the COMPANY as ordered in writing by the CITY or other governing body, without claim for reimbursement. The COMPANY shall, to the best extent possible, conform to and comply with the efforts of the CITY to maximize the use of the CITY property and to minimize the impact of construction projects by merging projects. If the CITY shall require the COMPANY to adapt or conform any portion of its Distribution System or in any way to alter, relocate or change its property to enable any other Person or corporation to use said public streets, alleys, waterways, easements and other public places of the CITY, as part of its permitting or approval process, the CITY shall require the Person desiring or occasioning such alteration, relocation or change to reimburse the COMPANY for any loss, cost or expense caused by or arising out of such change, alteration or relocation of any portion of the COMPANY'S facilities. The COMPANY further agrees that it will not intentionally interfere with, change, or injure any water pipes, drains, or sewers of said CITY unless it has received specific permission from the CITY or its duly authorized representative. SECTION 13. CUSTOMER COMPLAINTS: COMPANY, its successors and assigns, shall throughout the term of the Franchise distribute to all consumers gas of good quality and the COMPANY shall provide gas service within the limits of this Franchise area under the rules and regulations of the FPSC. All complaints shall be resolved by the COMPANY in accordance with said rules and regulations. The COMPANY shall maintain a local or toll free telephone number 24 hours a day to accept service calls and complaints from customers. The COMPANY shall render efficient service, make repairs promptly pursuant to FPSC rules and regulations, and interrupt service only for good cause. Any complaints shall be investigated and acted upon as soon as possible. SECTION 14. COMPLIANCE WITH CITY REQUESTS: If, at any time, in case of fire or other disaster in the CITY, it shall become necessary, in the judgment of the City Administrator or his or her designee or Fire Chief of City or his or her designee or the Police Chief of City or his or her designee, to stop the flow of natural gas into a structure or structures as necessary such function shall be done by the COMPANY and any repairs rendered necessary thereby shall be made by the COMPANY at no expense to the CITY. SECTION 15. LEAKS, RUPTURES AND EMERGENCY RESPONSE: A. COMPANY shall have in place, at all times during the term of this Franchise, a system to remotely monitor pressure at point(s) designate by COMPANY to ensure adequate pressure is available to serve Customers . The system used shall comply with industry standards. The remote monitoring must be able to accurately detect pipeline ruptures by sensing loss of pressure. B. During the term of this Franchise, Grantee shall have a written emergency response plan and procedure for locating leaks and ruptures and for shutting down valves as rapidly as possible. C. Upon acceptance of this Franchise, COMPANY shall provide, for CITY'S approval and 'NO acceptance, a copy of its emergency response plans and procedures, including, but not limited to, emergency rupture response. All proprietary or information critical to system Ordinance No. 1088 Natural Gas Franchise Agreement — Page 6 of 15 security may be redacted; however, such information related to system security shall be disclosed to CITY officials. If the parties disagree as to the adequacy of Grantee's emergency response plan, the CITY shall request the FPSC, or its successor, review the areas of the plan that causes the CITY concern. If the review recommends that COMPANY make modifications or additions to COMPANY'S emergency response plan, COMPANY covenants to consider said recommendations in good faith. If COMPANY declines to follow the recommendations, COMPANY shall provide a written report to the CITY explaining its reasoning for not following said recommendations. The parties agree to comply with the dispute resolution provisions contained herein to resolve any dispute over the whether to follow the recommendations. D. COMPANY'S emergency plans and procedures shall designate COMPANY'S responsible local emergency response officials and a direct 24-hour emergency contact number for the control center operator. COMPANY shall, after being notified of an emergency, cooperate with the CITY and make every effort to respond as soon as possible to protect the public's health, safety and welfare. E. The parties agree to meet annually to review the emergency plans and procedures. CITY shall coordinate this meeting with the COMPANY. F. Except as otherwise provide in Section 22 herein, COMPANY shall be solely responsible for all necessary costs incurred in responding to any leak, rupture or other release of natural gas from COMPANY'S pipeline(s) and/or Facilities, including, but not limited to, detection and removal of any contaminants from air, earth or water, and all remediation costs. Provided, however, nothing in the Section shall prevent COMPANY from pursuing recovery of such costs from responsible third parties. G. If requested by CITY in writing, COMPANY shall provide a written summary concerning any leak or rupture within thirty (30) days of the event, including, but not limited to, the leak or rupture's date, time, amount, location, response, remediation and other agencies COMPANY has notified. H. The CITY may investigate any leak or rupture to the pipeline. COMPANY shall meet and confer with the CITY following the CITY'S investigation to address whether any modifications or additions to COMPANY'S pipeline(s) and/or Facilities may be warranted. I. If the CITY recommends that COMPANY make modifications or additions to COMPANY'S pipeline(s) and/or Facilities, COMPANY covenants to consider said recommendations in good faith. If COMPANY declines to follow the CITY'S recommendations, COMPANY shall provide a written report to the CITY explaining its reasoning for not following said recommendations. The parties agree to comply with the dispute resolution provisions contained herein to resolve any dispute over the whether to follow the CITY'S recommendations. J. By the CITY'S approval of system operations, making of recommendations or requiring amendments to service or this Franchise, such shall not be construed or implied as the assumption of any liability by the CITY as to system operation or malfunction. SECTION 16. RELOCATION: A. In the event that CITY undertakes or approves the construction of or changes to the grade or location of any water, sewer or storm drainage line, street, sidewalk or other CITY improvement project or any governmental agency or any person or entity acting in a governmental capacity, or on the behalf of, under the authority of, or at the request of the CITY or any other governmental agency, undertakes any improvement project and Ordinance No. 1088 Natural Gas Franchise Agreement — Page 7 of 15 the CITY determines that the project might reasonably require the relocation of COMPANY'S Facilities, CITY shall provide the COMPANY at least ninety (90) calendar days prior written notice or such additional time as may reasonably be required, of such project requiring relocation of COMPANY'S pipeline(s) and/or Facilities. B. CITY, to the extent possible and available, shall provide COMPANY with copies of pertinent portions of the plans and specifications for the improvement project. Upon request, COMPANY shall, at its cost and expense, determine and identify for CITY the exact location of its pipeline(s) and Facilities potentially affected by the improvement project. C. COMPANY may, after receipt of written notice requesting a relocation of its Facilities, submit to the CITY written alternatives to the relocation within forty-five (45) calendar days of receiving the plans and specifications. Regardless of whether plans and specifications are available to COMPANY, COMPANY shall comply with the timeframes as set forth in Sectionl6A herein. The CITY shall evaluate the alternatives and advise COMPANY in writing if one or more of the alternatives are suitable to accommodate the work that would otherwise necessitate relocation of the Facilities. If requested by the CITY, COMPANY shall submit additional information to assist the CITY in making the evaluation. The CITY shall give each alternative proposed by COMPANY full and fair consideration but retains full discretion to decide for itself whether to utilize its original plan or an alternative proposed by COMPANY. In the event the CITY ultimately determines that there is no other reasonable alternative, COMPANY shall relocate its Facilities as proposed by the CITY. D. If any improvement project under this Section 16 is required in the interest of public health, safety, welfare, necessity or convenience, as adjudged in the sole discretion of the CITY, the COMPANY shall make such changes as required herein at COMPANY'S sole cost, expense and risk. E. CITY shall work cooperatively with COMPANY in determining a viable and practical route within which COMPANY may relocate its Facilities, in order to minimize costs while meeting CITY'S project objectives. F. COMPANY shall complete relocation of its Facilities so as to accommodate the improvement project at least ten (10) calendar days prior to commencement of the improvement project or such other time as the parties may agree in writing. SECTION 17. TECHNOLOGICAL IMPROVEMENTS: The COMPANY shall generally introduce and install, as soon as practicable, gas technological advances in its equipment and service within the CITY when such advances are technically and economically feasible and are safe and beneficial to the CITY and its residents. Upon request by the CITY, the COMPANY shall review and promptly report advances which have occurred in the gas industry that have been incorporated into the COMPANY'S operations in the CITY in the previous year or will be so incorporated in the six (6) months following the CITY'S request. SECTION 18. FRANCHISE FEE: Within thirty (30) days after the close of each calendar quarter following the effective date of this Franchise Agreement, the COMPANY, its successors or assigns, shall pay to the CITY, or its successors, a sum of money which is equal to six and one-half percent (6.5%) of the COMPANY'S Gross Revenue, for that preceding quarter, less any adjustments for uncollectible accounts, from the sale or delivery of Natural Gas to Customers within the corporate limits of the CITY (excluding (a) the CITY and each agency, board, commission or department thereof, and (b) Those Customers for whom the CITY has waived, in whole or in part, the obligation to pay a franchise fee) and less the amount of other licenses, excises, fees, charges Ordinance No. 1088 Natural Gas Franchise Agreement — Page 8 of 15 and other impositions of any kind whatsoever except ad valorem property tax and non-ad valorem tax assessments on property levied by CITY against COMPANY'S property, business, or operations for the tax year proceeding the beginning of the applicable privilege tax year, but also not including any public service tax levied on the purchase of metered or bottled gas pursuant to F.S. § 166.231. For failure to pay an undisputed franchise fee on time the COMPANY shall pay to the CITY on the amount unpaid at a rate equal to one percent (1%) `••- per month from the date the amount was due to the date it is finally paid. The franchise fee payment shall be deemed paid on time if post-marked within thirty (30) days of the close of the preceding calendar quarter. The COMPANY shall file with the CITY, within three months after the expiration of the COMPANY'S fiscal year, a financial statement signed and attested to by a COMPANY'S designated accounting supervisor of the franchise showing in detail the COMPANY'S gross revenues earned in the Franchise area during each such fiscal year. SECTION 19. FRANCHISE PARITY: If, during the term of this Franchise Agreement, the CITY, by Franchise Agreement or ordinance, allows other gas providers, gas consumers or gas transporters ("Alternate Gas Providers") the right, privilege or franchise to construct, maintain, operate or use gas facilities in, under, upon, over or across the present or future public streets, alleys, waterways, easements and other public places of the CITY, for the purpose of supplying or delivering Natural Gas to customers located within the corporate limits of the CITY or receiving such gas from a person other than the COMPANY within such corporate limits, and imposes a franchise compensation obligation or an equivalent on such Alternate Gas Provider for any customer or class of customers that is less than that imposed with respect to the same Customer or class of Customers under this Franchise Agreement, the Franchise compensation rate and/or base to which such rate is applied with respect to the same class of customers shall be reduced under this Franchise Agreement so that the Franchise compensation paid hereunder for such Customer class is no greater than the Franchise compensation payable by such Alternate Gas Provider under the Franchise Agreement or ordinance applicable to it, when compared on a dollars-per-term basis. In the event that the CITY determines not to impose any Franchise compensation by agreement, ordinance or otherwise on any such Alternate Gas Provider, the COMPANY'S obligation to pay a Franchise fee under this Franchise Agreement with respect to revenues derived from the provision of service by the COMPANY to the comparable class of customers served by such Alternate Gas Provider thereafter shall be extinguished. SECTION 20. ACCOUNTS AND RECORDS: The COMPANY shall maintain accounting, maintenance, and construction records as prescribed by the FPSC. The COMPANY shall establish and maintain appropriate accounts and records in such detail that revenues within the corporate limits of the CITY are consistently declared separately from all other revenues, and such records shall be maintained within the State of Florida, and be open at all reasonable times for inspection by the duly authorized representatives of the CITY pursuant to an appropriate confidentiality agreement. The COMPANY shall maintain its billing records only for the period of time required by the FPSC and any examination conducted after such period shall be confined to the billing records then available. SECTION 21. INSURANCE AND PERFORMANCE BOND: During the term of this Franchise, the COMPANY shall file with the City Clerk and shall keep in full force and effect at all times during the effective period hereof, insurance certificates evidencing a general liability insurance policy or policies or evidence of self-insurance, the terms and conditions whereof shall provide that the CITY is an additional insured as to the COMPANY'S construction or operation of a Natural Gas distribution system within the corporate limits of the CITY, as they currently exist or may exist in the future. Each such policy shall be in the minimum sum of $1,000,000.00 for injury or death to any one person, N4..,, and in the minimum sum of $5,000,000.00 for injury or death to all persons where there is more than one person involved in any one accident, and in the minimum sum of $1,000,000.00 for damage to property, resulting from any one accident, and each of the said minimum sums Ordinance No. 1088 Natural Gas Franchise Agreement — Page 9 of 15 shall remain in full force and shall be undiminished during the effective period of this Agreement. Any change in the scope or limits of the COMPANY'S insurance will require written approval from the CITY. Prior to commencement of any upgrade of the gas distribution system, COMPANY will furnish and file with the CITY a construction bond in the amount of twenty-five thousand ($25,000) dollars. The construction bond shall insure the faithful performance by COMPANY of all terms and conditions of this agreement with regard to the upgrade of the system. The COMPANY issuing such bond shall be licensed to do business in the State of Florida. Upon completion of the upgrade of the Gas Distribution System, the construction bond shall be released, and the CITY agrees to execute any and all documents necessary for such release. SECTION 22. INDEMNIFICATION: A. General. In consideration of the permissions granted to the COMPANY by this Franchise Agreement, the COMPANY hereby agrees to indemnify and hold harmless the CITY, its officers, agents and employees from and against claims, suits, actions, and causes of action, caused by or arising out of the COMPANY'S negligent operation of the Distribution System within the CITY during the term of this Franchise and resulting in personal injury, loss of life or damage to property sustained by any person or entity, through or as a result of the doing of any work herein authorized or the failure to do work herein required, and including all reasonable costs, attorney's fees, expenses and liabilities incurred by the CITY in connection with any such claim, suit, action or cause of action including the investigation thereof, and the defense of any action or proceeding brought thereon and any order, judgment or decree which may be entered in any such action or proceeding or as a result thereof, except that neither the COMPANY nor any of its employees, agents, contractor, licensees, or sub-lessees shall be liable under this section for any claims, suits, actions, damages, expenditures, including attorney's fees, or causes of action arising out of injury, loss of life or damage to persons or property caused by or arising out of the negligence, strict liability, intentional torts, criminal acts, or error of the CITY, its officers, agents, or employees. Nothing in this Agreement shall be construed to affect in any way the CITY'S rights, privileges, and immunities under the doctrine of "sovereign immunity" and as set forth in Section 768.28, Florida Statutes. The provisions of this section shall survive the expiration or earlier termination of this Franchise Agreement. B. Environmental. COMPANY shall indemnify, defend and save CITY harmless from and against any and all liability, loss, damage, expense, actions and claims, either at law or in equity, including, but not limited to, costs and reasonable attorneys' and experts' fees incurred by CITY in defense thereof, arising directly or indirectly from (a) COMPANY'S breach of any environmental laws applicable to the Distribution System or (b) from any release of a hazardous substance on or from the pipeline arising out of the COMPANY'S operation of the pipeline, except that neither the COMPANY nor any of its employees, agents, contractors, licensees, or sub-lessees shall be liable under this Section for any claims, suits, actions, damages, expenditures, including attorneys' fees, or causes of actions arising out of injury, loss of life or damage to persons or property caused by or arising out of the gross negligence, intentional torts, or criminal acts of the CITY, its officers, agents, or employees. This indemnity includes but is not limited to (a) liability for a governmental agency's costs of removal or remedial action for hazardous substances; (b) damages to natural resources caused by hazardous substances, including the reasonable costs of assessing such damages; (c) liability for any other person's costs of responding to hazardous substances; (d) liability for any costs of investigation, abatement, correction, cleanup, fines, penalties, or other damages arising under any environmental laws; and (e) liability for personal injury, property damage, or economic loss arising under any statutory or common-law theory. Nothing in this Agreement shall be construed to affect in any way the CITY'S rights, privileges, and immunities under the doctrine of "sovereign immunity" and as set forth in Section 768.28, Florida Statutes. The provisions of this section shall survive the expiration or earlier termination of this Franchise Agreement. Ordinance No. 1088 Natural Gas Franchise Agreement — Page 10 of 15 SECTION 23. RECEIVERSHIP AND FORECLOSURE: A. COMPANY shall immediately notify the CITY in writing if it: files a voluntary petition in bankruptcy, a voluntary petition to reorganize its business, or a voluntary petition to effect a plan or other arrangement with creditors; files an answer admitting the jurisdiction of the Court and the material allegations of an involuntary petition filed pursuant to the Bankruptcy Code, as amended; or is adjudicated bankrupt, makes an assignment for the benefit of creditors, or applies for or consents to the appointment of any receiver or trustee of all or any part of its property including all or any parts of its business operations, pipeline(s) or Facilities within or affecting the Franchise Area. B. Upon the foreclosure or other judicial sale of all or a substantial part of COMPANY'S business operations, pipeline(s) or Facilities within or affecting the Franchise Area, or upon the termination of any lease covering all or a substantial part of the pipeline(s) or Facilities within or affecting the Franchise Area, or upon the occasion of additional events which effectively cause termination of COMPANY'S rights or ability to operate the pipeline(s) or Facilities within or affecting the Franchise Area, COMPANY shall notify the CITY of such fact, and such notification or the occurrence of such terminating events shall be treated as a notification that a change in control of the COMPANY has taken place, and the provisions of this Franchise Agreement governing the consent of the CITY to such change in control of the COMPANY shall apply. C. The CITY shall have the right to cancel this Franchise one hundred twenty (120) days after the appointment of a receiver or trustee to take over and conduct the business of a COMPANY, whether in receivership, reorganization, bankruptcy, or other action or proceeding, unless such receivership or trusteeship shall have been vacated prior to the expiration of said one hundred twenty (120) days, or unless: (a) Within one hundred twenty (120) days after the election or appointment, such receiver or trustee shall have fully complied with all of the provisions of this Franchise Agreement and remedied any existing violations and/or defaults; and (b) Within said one hundred twenty (120) days, such receiver or trustee shall have executed an agreement, duly approved by the court having jurisdiction, whereby such receiver or trustee assumes and agrees to be bound by each and every provision of this Franchise Agreement granted to the COMPANY except where expressly prohibited by Florida law. SECTION 24. FORFEITURE OR REVOCATION OF GRANT: Material violation by the COMPANY of any of the covenants, terms, and conditions hereof, or default by the COMPANY in observing or carrying into effect any of said covenants, terms and conditions, shall authorize and empower the CITY to declare a forfeiture of and to revoke and cancel all rights granted hereunder, provided, however, that before such action by the CITY shall become operative and effective, the COMPANY shall have been served by the CITY with a written notice setting forth all matters pertinent to such violation or default, and describing the action of the Council with respect thereto, and the COMPANY shall have had a period of sixty (60) days after service of such notice within which to cure such violation or within which to present a plan, satisfactory to the CITY, acting reasonably, to affect such cure; and provided further that any violation or default resulting from a strike, a lockout, an act of God, or any other cause beyond the control of the COMPANY shall not constitute grounds for revoking and canceling any rights hereunder. In the event of forfeiture, the COMPANY shall have the right to assign, sell or transfer, to any entity of its choice, the rights conferred by this Franchise Agreement subject to the terms in Section 7 of this Agreement. SECTION 25. FRANCHISE ACCEPTANCE: The Franchise granted by this Agreement shall be conditioned upon the passage of an '141'w ordinance by the CITY accepting this Agreement and by the proper execution of this Agreement by the parties. Ordinance No. 1088 Natural Gas Franchise Agreement — Page 11 of 15 SECTION 26. CONFIDENTIAL INFORMATION: CITY acknowledges that certain information it might request pursuant to this franchise may be of a proprietary and confidential nature. If COMPANY requests that any information provided by COMPANY to CITY be kept confidential due to such proprietary or commercial value, CITY and its employees, agents, and representatives shall maintain the confidentiality of such information, unless shown to be required to be released by Ch. 119 FL. Statutes. If CITY is requested or required by legal or administrative process to disclose any such confidential .,,iol information, CITY shall promptly notify COMPANY of such request or requirement so that COMPANY may seek an appropriate protective order or other relief CITY shall use all reasonable efforts to ensure that the confidentiality of COMPANY'S confidential information is maintained. SECTION 27. LEGAL RELATIONS: A. Nothing contained in this Franchise shall be construed to create an association, trust, partnership, agency relationship, or joint venture or to impose a trust, partnership, or agency duty, obligation or liability on or with regard to any party. Each party shall be individually and severally liable for its own duties, obligations, and liabilities under this Franchise. B. COMPANY accepts any privileges granted by CITY to the Franchise Area, public rights- of-way and other Public Property in an "as is" condition. COMPANY agrees that the CITY has never made any representations, implied or express warranties or guarantees as to the suitability, security or safety of COMPANY'S location of facilities or the facilities themselves in public property or rights-of-way or possible hazards or dangers arising from other uses of the public rights-of-way or other public property by the CITY or the general public. COMPANY shall remain solely and separately liable for the function, testing, maintenance, replacement and/or repair of the pipeline or other activities permitted under this Franchise. C. This Franchise shall be governed by and construed in accordance with the laws of the State of Florida and the parties agree that in any action venue shall lie exclusively in Okeechobee County, Florida. SECTION 28. DISPUTE RESOLUTION: If either party asserts that the other party is in default in the performance of any obligation hereunder, the complaining party shall notify the other party of the default and the desired remedy. The notification shall be written. Representatives of the parties must promptly meet and attempt in good faith to negotiate a resolution of the dispute. If the dispute is not resolved within 30 days of the written notice, the parties may jointly select a mediator to facilitate further discussion. The parties will equally share the fees and expenses of this mediator. If a mediator is not used or if the parties are unable to resolve the dispute within 30 days after first meeting with the selected mediator, either party may pursue such other relief permitted by law. SECTION 29. MISCELLANEOUS: A. In the event that a court or agency of competent jurisdiction declares a material provision of this Franchise Agreement to be invalid, illegal or unenforceable, the parties shall negotiate in good faith and agree, to the maximum extent practicable in light of such determination, to such amendments or modifications as are appropriate actions so as to give effect to the intentions of the parties as reflected herein. If severance from this Franchise Agreement of the 'particular provision(s) determined to be invalid, illegal or unenforceable will fundamentally impair the value of this Franchise Agreement, either party may apply to a court of competent jurisdiction to reform or reconstitute the Franchise Agreement so as to recapture the original intent of said particular provision(s). All other provisions of the Franchise shall remain in effect at all times during which ,,,,,o negotiations or a judicial action remains pending. Ordinance No. 1088 Natural Gas Franchise Agreement — Page 12 of 15 B. Whenever this Franchise sets forth a time for any act to be performed, such time shall be deemed to be of the essence, and any failure to perform within the allotted time may be considered a material violation of this Franchise. C. In the event that COMPANY is prevented or delayed in the performance of any of its .• obligations under this Franchise by reason(s) beyond the reasonable control of COMPANY, then COMPANY performance shall be excused during the Force Majeure occurrence. Upon removal or termination of the Force Majeure occurrence the COMPANY shall promptly perform the affected obligations in an orderly and expedited manner under this Franchise or procure a substitute for such obligation or performance that is satisfactory to CITY. COMPANY performance shall not be excused by mere economic hardship nor by misfeasance or malfeasance of its directors, officers or employees. D. The section headings in this Franchise are for convenience only, and do not purport to and shall not be deemed to define, limit, or extend the scope or intent of the Section to which they pertain. E. By entering into this Franchise, the parties expressly do not intend to create any obligation or liability, or promise any performance to, any third party, nor have the parties created for any third party any right to enforce this Franchise. F. This Franchise and all of the terms and provisions shall be binding upon and inure to the benefit of the respective successors and assignees of the parties. G. Whenever this Franchise calls for notice to or notification by any party, the same (unless otherwise specifically provided) shall be in writing and directed to the recipient at the address set forth in this Section, unless written notice of change of address is provided to the other party. If the date for making any payment or performing any act is a legal holiday, payment may be made or the act performed on the next succeeding business day which is not a legal holiday. Notices shall be directed to the parties as follows: To the CITY: To the COMPANY: City of Okeechobee Florida Public Utilities Company City Administrator Director of Gas Operations 55 SE 3rd Avenue 1641 Worthington Rd, Ste 220 Okeechobee, FL 34974 West Palm Beach, FL 33409 H. The parties each represent and warrant that they have full authority to enter into and to perform this Franchise, that they are not in default or violation of any permit, license, or similar requirement necessary to carry out the terms hereof, and that no further approval, permit, license, certification, or action by a governmental authority is required to execute and perform this Franchise, except such as may be routinely required and obtained in the ordinary course of business. I. This Franchise Agreement and the attachments hereto represent the entire understanding and agreement between the parties with respect to the subject matter and it supersedes all prior oral negotiations between the parties. This Franchise Agreement can be amended, supplemented, modified or changed only by an agreement in writing which makes specific reference to the Franchise Agreement or the appropriate attachment and which is signed by the party against whom enforcement of any such amendment, `01100- supplement, modification or change is sought. All previous Franchise Agreements between the parties pertaining to COMPANY'S Operation of its pipeline(s) and/or Facilities are hereby superseded. Ordinance No. 1088 Natural Gas Franchise Agreement — Page 13 of 15 J. The right of the CITY to construct, purchase or condemn any public utility works or ways, and the rights of the COMPANY in connection therewith, as provided by the Florida Constitution and Statutes, are hereby expressly reserved. K. Upon receipt of the CITY'S authorization for billing and construction, the COMPANY shall extend its facilities to provide gas to the CITY for municipal uses within the CITY limits '44001 and within the COMPANY certificated service area when such service is otherwise available near CITY facilities, without requiring the CITY to advance funds prior to construction. All such extensions shall be done under the most favorable applicable rates and terms within the COMPANY'S FPSC approved Natural Gas Tariff. L. Interpretations of this Agreement on behalf of the CITY shall be made by the CITY Administrator or his or her designee. M. The Effective Date of this Franchise shall be the 21st day of August, 2012, after passage, approval and legal publication of the Ordinance as provided by law, and execution of this Agreement. N. The preparation of this Agreement has been a joint effort of the parties and a result of negotiation between the parties, and the resulting document shall not, solely as a matter of judicial constraint, be construed more severely against one of the patties than the other. No oral representations shall be capable of altering the written terms of this agreement. SECTION 30. DISCRIMINATION PROHIBITED: A. COMPANY shall not illegally discriminate in its rates, charges, or availability of service, or grant illegal preferences or advantages to any customers or potential customers or group of customers prejudicing any other group. COMPANY may not discriminate in providing service or services to customers or users on the basis of age, race, creed, religion, color, sex, handicap, national origin, marital status or political affiliation. However, it is understood that COMPANY'S rates are regulated by the FPSC and vary based on type of and use of gas service provided in accordance with COMPANY'S FPSC approved Natural Gas Tariff. B. Franchisee shall not discriminate against any person in employment or compensation or in terms and conditions of employment or discharge from employment because of age, race, creed, religion, color, sex, disability, national origin, marital status, or political affiliation. Franchisee must comply with all federal, state, and local regulations governing employment discrimination. SECTION 31. MINOR CHANGES IN PROVISIONS HEREOF: Minor changes in the terms and conditions hereof may be made by written agreement between the CITY and the COMPANY. SECTION 32: SEVERABILITY: If any section, part of section, paragraph, sentence, or clause of this Agreement shall be adjudged by a court of competent jurisdiction to be invalid, such decision shall not affect the validity of any other portion hereof, but shall be restricted and limited in its operation and effect to that specific portion hereof involved in the controversy in which such decision shall have been rendered. If either party to this Franchise Agreement feels that elimination of the specific portion of the Franchise Agreement adjudged to be invalid results in significant adverse consequences to itself, then that party may terminate this Franchise Agreement by providing r.r0 thirty (30) days written notice to the other party. Ordinance No. 1088 Natural Gas Franchise Agreement — Page 14 of 15 IN WITNESS WHEREOF, the Parties hereto have hereunto set their hands and seals the day and year first above written. CITY OF OKEECHOBEE FL'''RIDA PUBLIC UTILITIES COMPANY BY: By: 1/ mayor James E. Kirk ATTEST: ' Lane-Gamiotea, CMC, City Clerk REVIEWEDFOR LEGAL SUFFICIENCY: ■ John R. Cook, City Attorney Nohow Ordinance No. 1088 Natural Gas Franchise Agreement — Page 15 of 15 UNCONDITIONAL ACCEPTANCE BY COMPANY I, the undersigned official of Florida Public Utilities Company, am authorized to bind Company and to unconditionally accept the terms and conditions of the foregoing Franchise (Ordinance No. 1088),which are hereby accepted by Company this day of , 20 FLOR N/ PUBLIC UTILITIES COMPANY BY: Name: KR\.),,c-. L L Title: U' '-e ere 2 S jQ(4" State of Flori a County of VO1 1 Sworn. and subscribed before me this 1 day of UCl±OL r , 20 Q. by he-V who is pe� rsonally known to me or who has provided as identification. r Notary Public Signature L' Notary Commission No& xpi ation Date ''"' TAMYKA DANFORD Seal: 4 ' 01 Notary Public•State of Florida z�, My Comm.Expires Sep 20,2014 ec; ' :P Commission# DD 996400 0 Received on behalf of the City this ,4?)Nd. day of i(.- .4''( G 1�1�.�C._r� , 2012. Name: ;) ) L111.k 41tILLO110Title:• ( j �Q.h ORDINANCE NO. 1088 AN ORDINANCE OF THE CITY OF OKEECHOBEE FLORIDA, GRANTING • A NONEXCLUSIVE FRANCHISE FOR THE OPERATION AND MAINTENANCE OF A NATURAL GAS SYSTEM WITHIN THE GEOGRAPHIC BOUNDARIES OF THE CITY OF OKEECHOBEE OR AS HEREAFTER AMENDED, TO FLORIDA PUBLIC UTILITIES COMPANY; PROVIDING FOR DEFINITIONS; PROVIDING FOR A TERM OF YEARS WITH RENEWAL PROVISIONS; PROVIDING FOR CONSTRUCTION OF SERVICE AND DISTRIBUTION LINES; PROVIDING FOR NONEXCLUSIVE USE OF CITY RIGHTS-OF-WAY; PROVIDING FOR MAINTENANCE AND EMERGENCY RESPONSE; PROVIDING FOR ANNUAL REVIEW OF SERVICE; PROVIDING FOR INDEMNIFICATION; PROVIDING FOR DISPUTE RESOLUTION; PROVIDING FOR TERMINATION OF FRANCHISE; PROVIDING FOR SEVERABILITY; PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City of Okeechobee has the authority to grant a non-exclusive Franchise for various commercial services including utilities to a provider, and to limit such service solely by that provider within a defined geographic area in the City; and WHEREAS, the Franchise contemplated by this ordinance is for Natural Gas Service for the citizens of Okeechobee, which service has not to date been offered or available to the City; and WHEREAS, the provision of such Natural Gas Service would be a benefit to the citizens of Okeechobee to those who wish to subscribe, and would benefit the health, safety and welfare of the citizens, and otherwise promote a valid municipal purpose; and WHEREAS,this Franchise provides for the regular maintenance, improvement and safety of the transmission system, provides for service review by the City Council and the citizens, provides for oversight and regulation by the Florida Public Service Commission, and in all respects would improve the quality of life within Okeechobee. NOW THEREFORE, be it ordained before 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; that: 1. That the City of Okeechobee, Florida does hereby grant unto FLORIDA PUBLIC UTILITIES COMPANY, 1641 Worthington Road, Suite 220, West Palm Beach, Florida, 33409, its successors or assigns, a non-exclusive Franchise for the construction, operation and maintenance of a Natural Gas Distribution System within the geographic boundary of the City of Okeechobee, or as hereafter annexed or contracted, for a term of thirty (30) years from the effective date of this ordinance. 2. That the terms and conditions of the Franchise are accepted, and are specifically contained in the Franchise Agreement, as attached hereto, and its terms, conditions, obligations and agreements are incorporated herein by reference as if fully set forth herein. III 3. All ordinances or parts of ordinances in conflict herewith are hereby repealed. Ordinance No. 1088 Page 1 of 2 4. If any provision or portion of this ordinance and attached Franchise are declared by any court of competent jurisdiction to be void, unconstitutional or unenforceable,then all remaining provisions and portions of the ordinance and attached Franchise shall remain in full force and effect. 5. This Ordinance shall take effect immediately upon its passage. INTRODUCED for first reading and set for final public hearing on this to day of July 2012. : •es. E. Kirk, ayor ATTEST: A Lane Gamithea, CMC, City Clerk PASSED AND ADOPTED after Second and Final Public Hearing this 21st day of August 2012. es E. Kirk, ayor ATTEST: () aJ L COte-b47-4( Lane Gamiotea, MC, City Clerk REVIEWED FOR LEGAL SUFFICIENCY: Jo n R. Cook, City orney Ordinance No. 1088 Page 2 of 2