HomeMy WebLinkAbout2001 11 12 Public Hearings B First Reading - Ordinance 2001-53 Natural Gas Services with FPUC
.
COMMISSION AGENDA
ITEM B
Consent
Informational
Public Hearing X
Regular
November 12, 200 I
Meeting
v
(jj)
Mgr. / Dept.
Authorization
.
REQUEST:
The General Services Department requests the City Commission conduct a public hearing for the
adoption of Ordinance 2001-53, a Franchise Agreement between the City and Florida Public Utilities
Company, which provides for natural gas services in the City.
PURPOSE:
The purpose of this Agenda Item is to request the City Commission conduct a public hearing for the
adoption of Ordinance 2001-53, a Franchise Agreement with Florida Public Utilities Company
allowing FPUC to provide natural gas services in the city.
APPLICABLE LAW AND PUBLIC POLICY:
Section 4.14 (4), Charter of the City of Winter Springs
CONSIDERATIONS:
I. Ordinance 54, passed and adopted on December 21, 1970, by the Village Council of the Village
of North Orlando, with a term of thirty (30) years, granted an original non-exclusive franchise
to Florida Public Utilities Company to provide natural gas services within the corporate
. boundaries of the Village of North Orlando.
.
.
.
November 12,2001
PUBLIC HEARING AGENDA ITEM B
Page 2
2. That original franchise was extended by Emergency Ordinance 2000-44 and Emergency
Ordinance 2001-41 while negotiations continued on the terms of a new franchise agreement.
3. A new franchise agreement has now been finalized and is encapsulated in Ordinance 2001-53
(attached).
FISCAL IMPACT:
Upon adoption of Ordinance 2001-53, the franchise fee immediately rises to six and one-half percent
(6.5%) of gross revenues for the first fifteen (15) years of the thirty (30) year term, and rises again
to seven percent (7%) at the start of the second fifteen (15) years.
STAFF RECOMMENDATION:
I. Staff recommends that the City Commission adopt Ordinance 2001-53 on first reading.
ATTACHMENTS:
Ordinance 2001-53
COMMISSION ACTION:
CDD/November 7, 2001/3:37 PM
.
.
.
ORDINANCE NO.
AN ORDINANCE OF THE CITY COMMISSION OF THE
CITY OF WINTER SPRINGS, FLORIDA RELATING TO THE
GRANTING OF A GAS FRANCmSE WITHIN THE CITY OF
WINTER SPRINGS TO FLORIDA PUBLIC UTILITIES
COMPANY; PROVIDING FOR THE REPEAL OF PRIOR
INCONSISTENT ORDINANCES AND RESOLUTIONS;
PROVIDING FOR SEVERABILITY; AND PROVIDING FOR
AN EFFECTIVE DATE.
WHEREAS, the City is authorized to grant one or more non-exclusive, franchises to
construct, reconstruct, operate, and maintain a natural gas system within the City; and
WHEREAS, the City finds it in the public interest to make available within its corporate
limits high-quality and reliable natural gas service; and
WHEREAS, the City finds it in the public interest to retain regulatory authority over the
provision of natural gas service, to the extent allowed by law, because of the overriding public
health, safety and welfare considerations associated with the provision of this service; and
WHEREAS, the City finds it in the public interest to retain control over the use of public
rights-of-way by providers of natural gas to prohibit interference with the public convenience, to
promote aesthetic considerations, to promote planned and efficient use oflirnited right-of-way space,
and to protect the public investment of right-of-way property; and
WHEREAS, the City finds it in the public interest to ensure that high quality natural gas
service is maintained through a responsive customer service procedure; and
WHEREAS, the City Commission finds that the granting of a non-exclusive natural gas
franchise is the best means of assuring that the above described interests of the City of Winter
Springs are promoted and maintained; and
WHEREAS, the City, after public hearings and due evaluation, has determined that it is in
the best interests of the public health, safety and welfare of the City and its residents to approve this
Gas franchise
NOW, THEREFORE, THE CITY COMMISSION OF THE CITY OF WINTER
SPRINGS HEREBY ORDAINS, AS FOLLOWS:
Section 1.
Recitals. Each and all of the foregoing recitals are hereby incorporated and
City of Winter Springs
Ordinance No.
Page lof 19
.
.
.
acknowledged to be true and correct.
Section 2. Grant of Franchise. The City of Winter Springs hereby grants, 10
accordance with the foregoing, a gas franchise to Florida Public Utilities Company:
1. SHORT TITLE.
1.1
Gas Franchise".
This Ordinance shall be known and may be cited as "Winter Springs Natural
II. PURPOSE AND GOALS.
2.1 Purpose.
The City finds that the development and maintenance of a natural gas
distribution system has the potential of having great benefit and impact upon the people of the City.
The City further [mds that the public convenience, safety and general welfare can best be served by
exercising regulatory powers which are vested in the City or such persons as the City shall designate.
It is the intent of this Ordinance to provide for and specify the means to attain the best possible
public interest and public purpose in the distribution of natural gas within the boundaries of the City,
and this finding shall be an integral part of this Ordinance.
Further, the City recognizes that natural gas has, as a fuel source, the
capability of providing abundant clean-burning and efficient energy to the City's residents and
commercial businesses.
2.2 Goals.
For these purposes, the following goals underlie the regulations and
provisions contained herein:
(a) Natural gas should be made available to all City residents and
commercial businesses in accordance with the Florida Public Utilities Company Natural Gas tariff
filed with the Public Service Commission and any amendments, modifications, or revisions thereto.
(b) The Natural Gas Distribution System should be capable of
accommodating both the current and reasonably foreseeable future energy needs of the City.
(c) The Natural Gas Distribution System should be improved and
upgraded, if necessary, during the franchise term so that the new facilities necessary for the operation
of this system shall be integrated to the maximum extent possible with existing facilities.
City of Winter Springs
Ordinance No.
Page 2 of 19
.
III. DEFINITIONS.
For the purpose of this Ordinance, the following terms and words shall have the
meaning ascribed to them, unless the context clearly indicates otherwise:
3.1 "Agreement" or "Franchise" shall mean this grant of franchise, as amended
from time to time, which shall constitute authorization, voluntarily entered into by the Company
and granted by the City, for the purpose of providing the Company authorization to construct or
operate a Natural Gas Distribution System in the Franchise Area. Any such authorization, in
whatever form granted, shall not mean or include any license or permit required for the privilege of
transacting and carrying on a business within the City as required by any City ordinance or
resolution.
3.2 "City" means the City of Winter Springs, a Florida Municipal Corporation,
its successors and assigns.
3.3 "Company" means Florida Public Utilities Company, a Florida Corporation,
its successors and assigns as authorized hereunder.
3.4 "Franchise Areas" means all of the territory within the incorporated City,
and such additional territory as may be from time to time annexed into the City.
. 3.5 "Gross Annual Revenue" means all receipts derived by the Company
directly from the transport and sale of natural gas in the Franchise Area, excluding receipts derived
from large volume commercial customers utilizing in excess of an average of 500 Therms of Natural
Gas per month (i.e., large motel, Outback restaurant).
3.6 "Natural Gas" means natural gas in a gaseous state.
3.7 "Natural Gas Distribution System" shall mean the transmission pipelines
or any related equipment, facility, or building necessary or desirable to the transportation or delivery
of natural gas, or its treatment or storage during the course of transportation or delivery, under the
control of the Company, for the transmission, distribution or sale of Natural Gas pursuant to this
Ordinance, or any part thereof.
3.8 "Public Right-of-Way" means the surface, the air space above the surface,
and the area below the surface of any public street, sidewalk, bridge, waterway, utility easement, or
other public property, which shall entitle the City and the Company to the use thereof for the purpose
of installing and maintaining the Company's Natural Gas Distribution System. No reference herein,
or in any Franchise, to the "Public Right-of-Way" shall be deemed to be a representation or
guarantee by the City that its title to any property is sufficient to permit its use for such purpose, and
.
City of Winter Springs
Ordinance No.
Page 3 of 19
.
.
.
the Company shall, by its use of such terms, be deemed to gain only such rights to use property in
the City as the City may have the undisputed right and power to give.
3.9 "Transfer" means the disposal by the Company, directly or indirectly, by
gift, assignment, voluntary sale, merger, consolidation or otherwise, of twenty percent (20%) or
more at one time of the ownership or controlling interest in the Company, or thirty-five percent
(35%) cumulatively over the term of the Franchise of such interests to a corporation, partnership,
limited partnership, trust or association, or person or group of persons acting in concert or a change
in control. Transfer shall not include any transfer or assignment to a person controlling, controlled
by, or under the same common control as the Company.
IV. GRANT OF FRANCHISE.
4.1 Grant of Franchise. The Company is hereby granted a Natural Gas
Franchise, subject to the terms and conditions of this Franchise. Pursuant to this Franchise, the
Company may construct, operate, and maintain a Natural Gas Distribution System in, under, over,
along, across or upon the Public Rights-of-Way within the City for the purpose of transmission,
distribution and sale of Natural Gas for commercial, industrial, and residential use, in accordance
with the provisions of Chapter 337, Florida Statutes and subject to any right-of-way regulations
which are duly adopted by law.
In exercising rights pursuant hereto, the Company shall not endanger or
interfere with the lives of persons, interfere with any structures, buildings, or facilities of the City,
any public utility, or any other person permitted to use the Public Rights-of-Way, nor unnecessarily
hinder or obstruct the free use of the Public Rights-of-Way. The grant of this Franchise does not
establish priority for use over other present or future permit, license, or utility franchise holders or
the City's own use of the Public Rights-of-Way.
All rights granted for the construction, reconstruction, maintenance, and
operation of the Natural Gas Distribution System shall be subject to the continuing right of the City
to approve such reconstruction or relocation of the Natural Gas Distribution System in the Public
Rights-of-Way as shall, at the sole discretion of the City, be in the public interest.
4.2 Franchise Not Exdusiye. The grant of this Franchise shall be non-exclusive
and shall not affect the right of the City to grant to itself or any other person the right to: build,
operate, or own a Natural Gas Distribution System; occupy or use the Public Rights-of-Way for the
construction, reconstruction, maintenance, and operation of a Natural Gas Distribution System or
for any purpose whatsoever. No privilege or power of eminent domain is bestowed on the Company
by the grant of this Franchise, but this Franchise shall not be construed to limit the Company's power
of eminent domain under state law.
City of Winter Springs
Ordinance No.
Page 4 of 19
.
.
.
4.3 Event of Conflict. In the event of conflict between the terms and conditions
of any agreement between the parties and this Ordinance, this Ordinance shall control. In all events,
the Company shall comply with all laws, ordinances and regulations enacted by the City pursuant
to its lawful police and regulatory powers as authorized by law. This Franchise is hereby made
subject to the general City Code provisions now in effect and hereafter made effective. Nothing in
the Franchise shall be deemed to waive the requirements of the various codes of the City regarding
permits, taxes, and fees to be paid.
V. EFFECTIVE DATE OF FRANCHISE; TERM.
5.1 Effective Date. The effective date of this Franchise shall be
2001.
5.2 Term. The term of this Franchise shall be for a period of thirty (30) years
from the effective date unless sooner terminated as provided for in this Franchise. The Franchise
shall terminate on , 2031.
VI. FRANCHISE OPERATION.
6.1 Use of Public Rights-of-Way. For the purpose of operating and maintaining
a Natural Gas Distribution System in the Franchise Area, the Company may erect, install, construct,
repair, replace, reconstruct and retain in, on, over, under, upon, across and along the public streets
and ways within the Franchise Area such pipes, appurtenances, or related attachments or equipment
and other property and equipment as are necessary to the operation of the Natural Gas Distribution
System; provided, however, that the Company complies with all design, construction, safety, and
performance provisions contained in this Franchise, applicable local ordinances, and state and federal
law.
6.2 Right of Condemnation Reserved. Nothing herein shall limit any right the
City may have to acquire by eminent domain or otherwise any property of the Company; provided,
however, that any such acquisition shall be for a price that values the Company's property as allowed
by law.
6.3 City's Right to Perform Public Works. Nothing in this Franchise shall be
in hindrance to the right of the City or any governmental authority to perform or carry on, directly
or indirectly, any public works or public improvements of any description. Should the Natural Gas
Distribution System in any way interfere with the construction, maintenance or repair of such public
works or public improvements, the Company shall, at its own cost and expense, protect or relocate
its Natural Gas Distribution System, or part thereof, as reasonably directed by City officials or any
governmental authority.
City of Winter Springs
Ordinance No.
Page 5 of 19
.
.
.....
~
6.4 Emergency Response. The Company shall respond promptly in the case
of fire, emergency, or disaster in the City. The Company shall be responsible to take all prudent
actions necessary to mitigate any hazardous impact its Natural Gas Distribution System could
contribute to any fire, emergency, or disaster at it's own expense.
6.5 Removal or Abandonment. If the Company elects to remove any portion
of the Natural Gas Distribution System, the Company shall restore, in accordance with the directions
and specifications of all affected departments and agencies of the City and all applicable law, any
property, public or private, to its original condition prior to the removal of the Natural Gas
Distribution System.
6.6 Time Is of the Essence. Whenever this Franchise shall set forth any time for
any act to be performed by or on behalf of the Company, such time shall be deemed to be of the
essence, and any failure of the Company to perform within the time allotted shall be sufficient
ground for the City to invoke any applicable provision of the City Code or this Franchise.
6.7 No Waiver of Rights. No course of dealing between the Company and the
City nor any delay on the part of the City in exercising any rights hereunder shall operate as a waiver
of any such rights of the City or acquiescence in the actions of the Company in contravention of the
City's rights, except to the extent expressly waived by the City in writing or expressly provided for
in the Franchise.
VII. . TRANSFER OF OWNERSHIP OR CONTROL.
7.1 Transfer of Franchise. This Franchise shall not be sold, Transferred, leased,
assigned or disposed of, including but not limited to, by forced or voluntary sale, merger,
consolidation, receivership or other means without the prior written consent of the City, and then
only under such reasonable conditions as the City may establish which may include but not be
limited to financial guarantees to the Natural Gas Distribution System.
7.2 Transfer Threshold. The Company shall promptly notify the City of any
actual or proposed change in, or Transfer of, or acquisition by any other party of, control of the
Company.
7.3 City Approval. Every change, Transfer, or acquisition of control of the
Company shall make the Franchise subject to cancellation unless and until the City shall have
consented thereto in writing. For the purpose of determining whether it may consent to such change,
Transfer, or acquisition of control, the City may inquire into the legal, financial, character, technical,
and other public interest qualifications of the prospective Transferee or controlling party, or the
terms and conditions of the proposed change, transfer, or acquisition of control, and the Company
shall assist the City in obtaining all required information. Failure to provide all reasonable
City of Winter Springs
Ordinance No.
Page 6 of 19
.
.
.
information requested by the City as part of said inquiry shall be grounds for denial of the proposed
change, Transfer or acquisition of control.
7.4 Signatory Requirement. Any approval by the City of Transfer of ownership
shall be contingent upon the prospective assignee becoming a signatory to the Franchise.
VIII. FRANCHISE FEES.
8.1 For years one (1) through fifteen (15) the Company shall pay to the City a
Franchise Fee of six and half percent (6.5%) of the Gross Annual Revenues excluding bad debts,
taxes and fees collected by the Company on behalf of any governmental agency. For years sixteen
(16) through thirty (30) the Company shall pay to the City a Franchise Fee of seven percent (7%)
of the Gross Annual Revenues excluding bad debts, taxes and fees collected by the Company on
behalf of any governmental agency.
8.2 Franchise Fees in Addition to Other Taxes or Payments. Payment of the
Franchise Fee made by the Company to the City shall not be considered in the nature of a tax, but
shall be in addition to any and all taxes of general applicability which are now or may be required
hereafter to be paid by any Federal, State, or local law.
8.3 Acceptance by the City. Subject to applicable law, no acceptance of any
payment by the City shall be construed as a release or as an accord and satisfaction of any claim that
the City may have for further or additional sums payable as a Franchise Fee under this Franchise or
for the performance of any other obligation of the Company.
8.4 Failure to Make Required Payment. In the event that any Franchise Fee
or recomputed amount is not made on or before the dates specified herein, the Company shall pay
as additional compensation an interest charge, computed from such due date, at an annualized rate
equal to the commercial prime interest rate of the City's primary depository bank during the period
that such unpaid amount is owed.
8.5 Periodic Payments to Be Made. The Company shall make fee payments of
monies due hereunder within thirty (30) days of the end of each calendar quarter for Franchise Fees
collected during the preceding quarter. Accompanying said payment, the Company shall also
provide a written report of its Gross Revenues generated in the Franchise Area for the preceding
quarter's period.
8.6 City Right to Inspection. The City, at its discretion, shall have the right to
inspect the Company's Gross Annual Revenue records, to audit, and to recompute any fee amounts.
Inspections, audits or recomputations may be performed either by the City or an independent firm
selected by the City and qualified for such purposes. No audit of the Company's records relating to
Gross Annual Revenues shall take place later than thirty-six (36) months following the close of each
City of Winter Springs
Ordinance No.
Page 7 of 19
.
.
..
W'
of the Company's fiscal years. Audits that result in payment of four percent (4%) or more of
Franchise Fees during the audit period, shall be at the expense of the Company. Any additional
amount due to the City as a result of the audit shall be paid within thirty (30) Days of notice by the
City, unless the Company disputes the results of the audit. The Company agrees to meet with the
City and will attempt in good faith to resolve any differences. Thereafter, the additional amount due
shall be subject to payment within thirty (30) days after said additional amount is determined to be
due by the Company and the City, or the City declares an impasse in the negotiations with the
Company.
8.7 Payments Due in Event of Termination or Expiration. In the event that
the Company continues the operation of any part or all of the Natural Gas Distribution System
beyond the termination, revocation, or expiration of the Franchise granted herein, it shall continue
to pay to the City the Franchise Fee in the manner set forth in this Franchise. This section shall not
be construed to authorize the operation of the Natural Gas Distribution System beyond the
termination, revocation, or expiration of this Franchise.
8.8 Alternative Fee Contingencies. In the event that the Company's obligation
to pay a Franchise Fee is held invalid by a decision of any court of competent jurisdiction or due to
the actions of any legislative body, the Company shall negotiate with the City in good faith and shall
agree, if permissible under then applicable law, to provide compensation to the City in lieu of the
Franchise Fee. The amount of compensation shall, to the extent permitted by applicable law, as
amended from time to time, be comparable to that which the Company would pay as the Franchise
Fee under the terms of this Franchise and shall be passed through to the natural gas customers in a
manner similar to the Franchise Fee.
8.9 Other Fees and Taxes. To the extent that any federal or state law or
regulation may now forbid the City from assessing any type of fee or tax, upon repeal, modification,
or judicial/administrative interpretation of said law or rule that would permit the City to assess said
fee or tax, the City shall have the right to assess said fee or tax to the full extent authorized by law;
provided, that the City shall first consult with the Company. Upon such occurrence, the parties shall
meet and confer within ninety (90) days of notice from the City to in good faith negotiate Franchise
provisions to implement the collection of said fee or tax.
IX. FORFEITURE OR REVOCATION.
9.1 Grounds for Revocation. The City reserves the right to revoke any
Franchise granted hereunder, pursuant to the procedure in paragraph 9.4, and rescind all rights and
privileges associated with the Franchise in the following circumstances, each of which shall
represent a default and breach of this Franchise:
(a) Company has defaulted in the performance of any of the material
obligations under this Franchise or any provision of the City Code not conflicting with this
City of Winter Springs
Ordinance No.
Page 8 of 19
.
.
.
Franchise;
(b) Company has failed to provide or maintain in full force and effect the
liability and indemnification coverage as required herein;
(c) Company has violated a material provision of any orders or rulings
of any regulatory body having jurisdiction over the Company relative to this Franchise and any
regulatory ordinance of the City, and the Company fails to begin cure within five (5) business days
of notice from the City and to complete cure within a reasonable time after notice, as determined by
the City;
(d) Company has committed any act of fraud upon the City or natural gas
customers;
(e) Company has acted grossly negligently, as defined by general law, in
maintaining or operating the Natural Gas Distribution System provided in this Franchise;
(t) Company has become insolvent, is unable or unwilling to pay its
debts, or is adjudged bankrupt;
(g) Company has made a material misrepresentation of fact 10 the
application for or negotiation of the Franchise or any extension or renewal thereof; and
in this Franchise.
(h) Company has failed to pay the Franchise Fee in the manner provided
9.2 Effect of Circumstances Beyond Control of Franchisee. The Company
shall not be declared at fault or be subject to any sanction under any provision of this Franchise in
any case, in which performance of any such provision is prevented for reasons beyond the
Company's control. For the purposes of this Franchise, causes or events beyond the Company's
control shall include, without limitation, acts of God, floods, earthquakes, landslides, hurricanes,
fires and other natural disasters, acts of public enemies, riots or civil disturbances, sabotage, strikes
and restraints imposed by order of a governmental agency or court. A cause or event shall not be
deemed to be beyond the Company's control if committed by a corporation or other business entity
in which the Company holds a controlling interest whether held directly or indirectly, when such
fault is due to Company's financial inability to perform or comply, economic hardship, or
misfeasance, malfeasance or nonfeasance by any of the Company's directors, officers, employees
or contractors or agents.
9.3 Effect of Pending Litigation. Pending litigation or any appeal to any
regulatory body or court having jurisdiction over the Company shall not excuse the Company from
City of Winter Springs
Ordinance No.
Page 9 of 19
.
the performance of its obligations under this Franchise, unless specifically provided for by court
order or by the regulatory body having jurisdiction over such matters. Failure of the Company to
perform such obligations because of pending litigation or petition may result in forfeiture or
revocation pursuant to the provisions of this section.
.
9.4 Procedure Prior to Revocation. The City Manager shall notify the
Company in writing of the exact nature of the alleged violation constituting a ground for termination
and give the Company thirty (30) days, or such greater amount of time as the City Manager may
specify, to correct such violations or to present facts and arguments to the City Manager to refute
the alleged violation ("Cure Period"). If by the end of the Cure Period the Company does not
remedy the violation or convince the City Manager there is no violation, the City Manager shall
schedule a public meeting of the City Commission for purposes of addressing the alleged violation.
The Commission meeting shall be held within thirty (30) days from the expiration of the Cure
Period. The City Manager shall promptly provide the Company written notice of the Commission
meeting. During the Commission meeting, the City Manager, Company, and all interested parties
shall have the right to be heard in person and through counsel, present evidence, and cross examine
adverse witnesses. At the conclusion of the Commission meeting, the Commission may suspend or
revoke the Franchise, if it determines that there are sufficient grounds which warrant such action;
otherwise, the Franchise remains in full force and effect. The Company shall not be held in default
nor suffer any penalties where non-compliance or default is caused by an event beyond the
Company's control, as stated in Section 9.2. The Company shall have the right of review by a court
of competent jurisdiction upon any determination by the City Commission to suspend or revoke
this Franchise. However, nothing contained herein shall prohibit the City from seeking an equitable
remedy including but not limited to injunction relief or specific performance.
x. LIABILITY AND INSURANCE.
10.1 Certificate of Insurance. In no event later than thirty (30) days after the
effective date of this Franchise and thereafter continuously throughout the duration of this Franchise
and any extensions or renewals thereof, the Company shall furnish to the City, certificates of
insurance, approved by the City, for all types of insurance required under this section. Failure to
furnish said certificates of insurance in a timely manner shall constitute a failure to faithfully comply
with this Franchise. At the City's request, the Company shall furnish certificates of insurance which
are in effect from time to time.
10.2 No Liability Limit. Neither the provisions of this article or any damages
recovered by the City hereunder, shall be construed to limit the liability of the Company for damages
under this Franchise.
10.3 Endorsement. All insurance policies maintained pursuant to this Franchise
shall contain an endorsement in substantially the following form:
.
City of Winter Springs
Ordinance No.
Page 10 of 19
.
.
~
~
It is hereby understood and agreed that this insurance policy may not
be modified or canceled by the insurance company nor the intention
not to renew be stated by the insurance company until thirty (30) days
after receipt by the City of Winter Springs City Manager by certified
mail, of a written notice of such intention to cancel or not to renew.
10.4 State Institution. Except for self-insured policies, all insurance policies
provided pursuant to this Franchise shall be written by companies authorized by the Florida
Insurance Commissioner to do business in the State of Florida as an insurance company.
10.5 Named Insured. The City shall be an additional named insured for all
insurance policies written pursuant to this Franchise.
10.6 Changes in Policy Limits. To offset the effects of inflation and to reflect
changing liability limits, all ofthe coverage, limits, and amounts of the insurance provided for herein
are subject to reasonable increases at the end of every three (3) year period of this Franchise,
applicable to the next three (3) year period, at the City's discretion.
10.7 Commercial General Liability Insurance. The Company shall maintain
throughout the term of this Franchise, general liability insurance insuring the Company in the
minimum of:
(a) $1,000,000 for property damage single limit; and
(b) $3,000,000 single limit liability for personal bodily injury or death to
anyone person.
Such general liability insurance must include coverage for all of the
following: comprehensive form, premises operations, explosion and collapse hazard, underground
hazard, products/completed operations hazard, contractual insurance, broad form property damage,
and personal injury.
10.8 Automobile Liability Insurance. The Company shall maintain throughout
the term of this Franchise, automobile liability insurance for owned, non-owned, or rented vehicles
in the minimum amount of:
(a)
death per occurrence; and
$1,000,000 single limit liability for bodily injury and consequent
City of Winter Springs
Ordinance No.
Page II of 19
.
(b)
$1,000,000 for property damage per occurrence.
10.9 Worker's Compensation. The Company shall maintain throughout the term
of this Franchise, worker's compensation in the minimum amount of the statutory limit for worker's
compensation, as amended from time to time.
XI. INDEMNIFICATION AND HOLD HARMLESS.
11.1 Indemnity and Hold Harmless. The City shall in no way be liable or
responsible for any accident or damage caused by the Company that may occur in the construction,
operation, or maintenance by the Company of the Natural Gas Distribution System, and the
acceptance of this Franchise on the part of the Company shall be deemed an agreement on the part
of the Company to fully indemnify, defend and hold harmless the City and its officers, boards and
Commission, contractors, attorneys and City employees against the full amount of any (i) claims,
(ii) liabilities, (iii) actions, (iv) suits, (v) proceedings, (vi) payments, (vii) assessments, (viii)
judgments, (ix) losses, (x) damages, (xi) costs and (xii) expenses (including interest, penalties and
reasonable attorneys' fees and disbursements) claimed against the City in connection with the
following:
(a) To persons or property, in any way arising out of or through the acts
or omissions of the Company, its servants, agents or employees; and
. (b) Arising out of the Company's failure to comply with the provisions
of any federal, state, or local laws, ordinances, or regulations applicable to the Company in its
business hereunder.
11.2 Condition. The foregoing indemnity is conditioned upon the City giving the
Company prompt notice of any claim or the commencement of any action, suit or other proceeding
covered by the provisions of this section. Nothing herein shall be deemed to prevent the City from
cooperating with the Company and participating in the defense of any litigation by its own counsel
at its own costs and expense.
XII. DESIGN AND CONSTRUCTION PROVISIONS.
12.1 Authorization to Commence Construction and Application Procedures.
Prior to the installation or erection of any pipelines, towers, poles, conduits, fixtures, or other
appurtenances thereto, other than minor or emergency excavation and maintenance, or the upgrade
or rebuild of the Natural Gas Distribution System, the Company shall first submit to the City for
review a concise description of the facilities proposed to be maintained, erected, removed, or
installed, including engineering drawings, if required by the City. No erection, excavation, or
installation of any part of the Natural Gas Distribution System, or any other appurtenances thereto,
..
..,
City of Winter Springs
Ordinance No.
Page 12 of 19
.
.
.
shall be commenced by any person until proper permits have been received from the City, except
in the event of an emergency.
12.2 City Maps. The City does not guarantee the accuracy of any maps showing
the horizontal or vertical location of existing substructures or utilities.
12.3 Compliance with Construction and Technical Standards. The Company
shall install or erect any pipelines, towers, poles, conduits, fixtures, or other appurtenances thereto,
in accordance with commonly accepted good engineering practices and technical standards. The
Company shall comply with all applicable construction and technical codes adopted by local, state,
and federal law.
12.4 Quality of Construction. Construction, installation, reconstruction,
operation, and maintenance of the Natural Gas Distribution System shall be performed in an orderly
and workmanlike manner, in accordance with then current technological standards. The Company
shall use its best efforts to install or erect the Natural Gas Distribution System parallel with existing
other utilities located in the rights-of-way. Nothing herein shall preclude underground installation.
12.5 Underground Installation.
(a) All installations of the natural gas transmission pipelines shall be
underground unless otherwise approved by the City in writing. No paved street, alley or other paved
Right-of- Way shall be cut unless approved by the City in writing, except in case of emergency.
(b) Prior to performing any underground construction, the Company shall
use its best efforts to locate, in advance, any water, sewage, gas, electric, cable, drainage, or other
utility lines, including compliance with Chapter 556, Florida Statutes, to the extent applicable.
Where any damages or alterations occur to said utility lines in the public right-of-way as a result of
construction, reconstruction, maintenance, or removal of the Natural Gas Distribution System by the
Company, its agents or independent contractors, the cost of such repairs including all services and
materials will be the responsibility of the Company to the extent provided in Chapter 556, Florida
Statutes and law.
12.6 Construction Notice. Except with regard to routine maintenance and
emergency circumstances, the Company shall give appropriate notice to the City and residents within
a reasonable period of time of proposed construction, reconstruction, excavation, laying or stringing
of the Natural Gas Distribution System under streets or on poles, but in no event shall such notice
be given less than five (5) business days before such commencement.
12.7 Interference with Persons, Public and Private Property, and Utilities.
The Company's Natural Gas Distribution System and all appurtenances shall be located, erected and
City of Winter Springs
Ordinance No.
Page 13 of 19
.
.
.
maintained so that such system shall:
(a) Not endanger or interfere with the health, safety or lives of persons;
(b) Not interfere with any improvements which the City, county or state
may deem proper to make;
(c) Not interfere with the free and proper use of public rights-of-way,
alleys, bridges, easements or other public property, except to the minimum extent possible during
actual construction or repair;
(d) Not interfere with the rights and reasonable convenience of private
property owners, except to the minimum extent possible during actual construction or repairs; and
(e) Not obstruct, hinder or interfere with any gas, cable, electric, water,
wastewater, reclaimed water, stormwater drainage, telephone, or other utility facilities located within
the City.
12.8 Restoration to Prior Condition. In case of any disturbance of pavement,
sidewalk, driveway or other surfacing, the Company shall, at its own cost and expense, and in a
manner approved by the City, replace and restore all paving, sidewalk, driveway, landscaping, or
surface of any street or alley disturbed, in as good a condition as before said work was commenced
and in a good workmanlike, timely manner in accordance with standards for such work set by the
City or the governmental entity having operational and maintenance responsibility for the Public
Right-of-Way. Unless otherwise approved by the City Manager, such restoration shall be undertaken
within ten (10) business days after the damage is incurred and shall be completed as soon as possible
thereafter.
12.9 Private Property. The Company shall promptly repair or replace all private
property, both real and personal, damaged or destroyed as a result of the construction, installation,
operating or maintenance of the Natural Gas Distribution System at its sole cost and expense.
12.10 Progress Reports. For work involving Public Right-of-Way excavation for
other than in the event of an emergency, prior to commencing construction, the Company shall
provide the City with a schedule for completion of said work and keep the City informed of the
construction progress as reasonably necessary.
12.11 Annexation. In the event of annexation of any territory to the present
corporate limits of City, any and all portions of the gas system of Company located in said annexed
territory shall be subject to all of the terms and conditions of this Franchise as though it were an
extension made hereunder.
City of Winter Springs
Ordinance No.
Page 14 of 19
.
XIII. BOOKS AND RECORDS AVAILABLE TO CITY.
13.1 Records. With advance written request, the City shall have the right to
inspect at any time during normal business hours, all books, records, maps, revenue statements,
service complaint logs, performance test results and other like materials of the Company which relate
to the operation and enforcement of the Franchise within the City. Access to the aforementioned
records shall not be denied by the Company on the basis that said records contain "proprietary"
information, unless applicable law exempts said records.
13.2 Review. The Company shall permit, during the Company's normal business
hours, any duly authorized representative of the City to examine, at the City's discretion, any and all
maps and other records kept or maintained by the Company or under its control concerning the
operations, affairs, transactions or property of the Company relative to the Natural Gas Distribution
System operations in the City. The examination shall take place at the Company's place of business.
13.3 Reports to Be Filed. The following financial reports for the Franchise area
shall be submitted to the City:
(a) An mmual report prepared by the Company or the parent company of
the Company shall be provided annually at the time said report is published.
. (b) A quarterly financial report showing the Company's quarterly gross
revenues and quarterly franchise fees collected in the Franchise Area, pursuant to Paragraph 8.5
herein.
13.4 Other Records. The City may impose reasonable requests for additional
information, records and documents from time to time, and the Company shall produce said records
within ten (10) business days, so long as such request relates to the City's enforcement abilities under
this Franchise or the City's ordinances or resolutions.
XIV. PREFERENTIAL OR DISCRIMINATORY PRACTICES PROHIBITED.
All services rendered and all rules and regulations adopted by the Company shall
have general application to all persons and shall not subject any person to prejudice or disadvantage
on account of race, gender, religion, origin, or ethnicity. The Company shall not deny Natural Gas
service to any group of potential residential customers within the City because of the income of the
residents of the area in which such group resides. The Company shall not charge customers different
rates for Natural Gas service for the same class or type of service, unless the different rate is
approved by the Public Service Commission as part of the Company's tariff.
.
City of Winter Springs
Ordinance No.
Page 15 of ]9
.
.
.
XV. SERVICE STANDARDS
15.1 Operation. The Company shall maintain and operate its Natural Gas
Distribution System and render efficient service in accordance with the rules and regulations as are,
or may be, set forth by the City Commission of the City of Winter Springs as provided in this
Franchise and by the Public Service Commission.
15.2 Planned Downtime. The Company shall provide reasonable notice to all
customers who will be affected by an interruption of service for the purpose of repairs to, and
installation of, the Natural Gas Distribution System to customers.
15.3 Rules and Regulations. Company shall have the right to adopt and enforce
rules and regulations with respect to the extension, initiation and rendering of gas service, provided
the same are not inconsistent with this Ordinance, including rules providing for the discontinuance
of service to any customer for nonpayment of bills when due, or for failure to comply with the
Company's other rules and regulations. All rates for gas and rules and regulations established by
Company from time to time shall be those prescribed and approved by the Florida Public Service
Commission.
XVI. MISCELLANEOUS PROVISIONS.
16.1 No Joint Venture. Nothing herein shall be deemed to create ajoint venture
or principal-agent relationship between the parties, and neither party is authorized to, nor shall either
party act toward third persons or the public in any manner which would indicate any such
relationship with the other.
16.2 Entire Agreement. This grant and all City Code provisions regulating the
distribution, transmission, or sale of Natural Gas are incorporated herein by reference, represent the
entire understanding and agreement between the parties hereto with respect to the subject matter
hereof, and supersede all prior oral negotiations between the parties. This grant may be amended,
supplemented, modified, or changed only by adoption of an Ordinance by the City and execution
of an instrument agreeing to said amendment, supplementation, modification, or change in the terms
hereof by the Company.
16.3 Provisions Cumulative. The rights and remedies reserved to the City by this
Ordinance are cumulative and shall be in addition to and not in derogation of any other rights or
remedies which the City may have with respect to the subject matter of this grant of franchise subject
to applicable law, and a waiver thereof at any time shall have no effect on the enforcement of such
rights or remedies at a future time.
City of Winter Springs
Ordinance No.
Page 16 of 19
.
.
.
16.4 Notices. All notices from the Company to the City pursuant to this Franchise
shall be sent to: City Manager, City of Winter Springs, Florida, 1126 East State Road 434, Winter
Springs, Florida 32708. All notices to the Company shall be sent to: Senior Vice President, Florida
Public Utilities Company, 401 South Dixie Highway, West Palm Beach, Florida 33401. The names
and address in this section may be unilaterally amended by either party at anytime by giving written
notice to the other party.
16.5 Captions. Captions to sections through this Ordinance are solely to facilitate
the reading and reference to the sections and provisions of the Ordinance. Such captions shall not
affect the meaning or interpretation of the Franchise.
16.6 City's Rights of Intervention. The Company agrees not to oppose
intervention by the City if any suit or proceeding to which the Company is a party, concerning or
involving the Company and the City's rights under this Franchise.
16.7 Governing Law. This Franchise shall be governed in all respects, including
validity, interpretation and effect, by the laws of the State of Florida.
16.8 Jurisdiction and Venue. The parties hereto agree that the state or federal
courts located in the State of Florida shall have the exclusive jurisdiction over the parties and the
subject matter of any litigation between the parties arising hereunder. For purpose of state court
action, venue shall lie within Seminole County, Florida, and for the purpose of federal court action,
venue shall lie within Orlando, Florida. THE COMPANY HEREBY WAIVES RIGHT TO
TRIAL BY JURY IN ANY ACTION BROUGHT ON THIS FRANCHISE OR ON ANY
MATTER ARISING IN CONNECTION WITH THIS FRANCHISE.
16. 9 Attorney's Fees. In the event of any litigation or arbitration arising out of
this Ordinance, the prevailing party, to the extent permitted by law, shall be entitled to an award of
its reasonable attorney's fees and court costs incurred in such action.
16.10 Franchise Costs. The Company agrees to pay the public advertising costs
incurred by the City in publishing newspaper advertisements required by law to grant this Franchise
or any renewal or assignment thereof.
16.11 Renegotiation Clause. In the event of a material change in Federal or State
law(s) or Public Service Commission rule(s) or in the event the Company enters into a franchise or
other agreement with Seminole County or any other City within Seminole County which provides
the County or other City more favorable Franchise Fees than provided to the City under this
Franchise, the City and the Company mutually agree to renegotiate those particular terms of this
City of Winter Springs
Ordinance No.
Page 17 of ] 9
.
.
.
Franchise affected by changes in said law(s), rule(s), or franchises or agreements. This Franchise
shall remain in full force and effect until any negotiated amendments have been duly approved by
both the City and the Company, however, if the Company fails to negotiate said amendments in
good faith and in a timely manner, the City shall have the right to terminate this Franchise pursuant
to paragraph 9.4 herein.
16.12 Purchase System. As a condition precedent to the taking effect of this
Franchise, City hereby reserves and CompaJ1Y hereby gives and grants to City, the right at and after
the expiration of this franchise to purchase the Natural Gas Distribution System used by Company
under this Franchise at a valuation to be determined by negotiation between the parties, or in the
event an amount cannot be negotiated, by an amount determined by a Court of competent
jurisdiction.
Section 3. Incorporation Into Code. This ordinance shall not be incorporated into the
Winter Springs City Code and any section or paragraph number or letter and any heading may be
changed or modified as necessary to effectuate the foregoing.
Section 4. Severability. If any section, subsection, sentence, clause, phrase, word or
provision of this ordinance is for any reason held invalid or unconstitutional by any court of
competent jurisdiction, whether for substantive, procedural, or any other reason, such portion shall
be deemed a separate, distinct and independent provision, and such holding shall not affect the
validity of the remaining portions of this ordinance.
Section 5. Effective Date. This Ordinance shall become effective the first full day of
the first calendar month following the adoption of this Ordinance by the City Commission of the
City of Winter Springs, Florida.
IN WITNESS WHEREOF, the parties hereto have caused this Franchise to be executed as
of the day and year first above written.
PAUL P. PARTYKA
Mayor
ATTEST:
ANDREA LORENZO-LUACES
City Clerk
City of Winter Springs
Ordinance No.
Page 18 of 19
.
.
.
Approved as to legal form and sufficiency for
the City of Winter Springs only
Anthony A. Garganese, City Attorney
First Reading:
Second Reading:
Effective Date:
F:\DOCS\Ciry of Winter Springs\Ordinances\Gas Franchise 11-7-01-Final.wpd
City of Winter Springs
Ordinance No.
Page 19 of 19
.
.
AGREEMENT
COMES NOW, FLORIDA PUBLIC UTILITIES COMPANY, a public utility organization organized and
existing under the laws of the State of Florida, hereinafter the Company, and the City of Winter Springs, a municipal
corporation organized and existing under the laws of the State of Florida, hereinafter the City, and agree:
I. That the City has agreed to adopt, and the Company has agreed to accept, an ordinance granting a
franchise to construct or otherwise acquire and to own, maintain, equip and operate plants and works, and all
necessary or desirable appurtenances thereof, for the manufacture, purchase, transmission and distribution of
artificial, natural and/or mixed gas (hereinafter referred to generally as "gas"), including the right without payment
by Grantee of any special tax, assessment or charge therefore to construct, lay, extend, maintain, renew, remove,
replace, repair, use and operate gas pipes and gas mains, and all appurtenances and appendages thereto, in, under, or
across the present and future public streets, avenues, alleys, highways, bridges, easements and other public places
within the present or any future corporate lim its of Grantor or its successors, for the purpose of distributing,
supplying and selling gas to Grantor or its successors, and to persons and corporations inhabitants thereof, as well as
to persons or corporations beyond the present or future corporate limits thereof.
2. That contemporaneously with the adoption of the franchise by the City and the acceptance of that
franchise by the Company, the City and the Company have entered into this separate agreement that during the term
of the franchise, and any renewal or extension thereof, when and if the Company negotiates a gas franchise after the
effective date of the acceptance of the franchise, which increases the percentage of the franchise fee payable above
the 6% provided by the ordinance, the City shall have the right to amend the franchise ordinance during the 30 year
term to provide for the application of such increase percentage to collections made for the sale of gas within the City
and the Company hereby irrevocably consents to any such amendments adopted pursuant hereto.
Annually, as of January I of each year, the Company will furnish the City a list of all of its gas franchises
including the name and address of the franchisor, the date of the franchise, the percentage of the franchise fee, and
the length of the term of the franchise, including both those negotiated after the date of acceptance of the franchise,
which are covered by this Agreement, and those which are excluded. Should any of the franchises covered by this
Agreement provide a franchise fee above the 6% provided by the amended ordinance, the City, may in its sole
discretion, elect to amend the existing franchise ordinance upon giving the Company at least 30 days advance
written notice prior to the effective date in order to give the Company sufficient time to implement the increased
franchise fee.
3. Further provided the increase referred to above shall be implemented at the beginning of the franchise
year, which shall be the anniversary of the effective date of the franchise referred to above in each succeeding year.
4. Further provided that the amendment shall:
a. apply only to a change in the applicable franchise fee percentage and not to any
change in class of service to which it applies.
b. apply only to gas franchises negotiated buy the Company after the date set forth above and not
to gas franchises acquired by the Company through acquisition, purchase or merger.
DATED this _ day of
,200_.
FLORIDA PUBLIC UTILITIES COMPANY
CITY OF WINTER SPRINGS
By:
Mayor
Witness:
Attest:
. APPROVED AS TO FORM AND LEGALITY:
City Attorney