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HomeMy WebLinkAboutOrdinance 2001-53 Gas Franchise ORDINANCE NO. 2001-53 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF WINTER SPRINGS, FLORIDA RELATING TO THE GRANTING OF A GAS FRANCHISE 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 oflimited 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 ofthe 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 ofthe foregoing recitals are hereby incorporated and acknowledged to be true and correct. City of Winter Springs Ordinance No. 2001-53 Page 1 of 18 EXHIBIT "A" Section 2. Grant of Franchise. The City of Winter Springs hereby grants, in accordance with the foregoing, a gas franchise to Florida Public Utilities Company: I. SHORT TITLE. 1.1 This Ordinance shall be known and may be cited as "Winter Springs Natural Gas Franchise". 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 finds 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. 2001-53 Page 2 of 18 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 oftransacting 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 ofthe 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 ofN atural Gas per month (i.e., large motel, Outback restaurant). 3.6 "Natural Gas" means natural gas in a gaseous state. 3.7 "N atural 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 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. City of Winter Springs Ordinance No. 2001-53 Pagd of 18 3.9 "Transfer" means the disposal by the Company, directly or indirectly, by gift, assignment, voluntary sale, merger, consolidation or otherwise, of the ownership or controlling interest in the Company, 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 ofthe 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 Exclusive. The grant ofthis Franchise shall be non-exclusive and shall not affect the right of the City to grant 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 aN atural 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. 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 City of Winter Springs Ordinance No. 2001-53 Page 4 of 18 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 ofthis 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. 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. City of Winter Springs Ordinance No. 200]-53 Page 5 of 18 6.5 Removal or Abandonment. If the Company elects to remove any portion ofthe 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 ofthe 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. Said consent shall not be unreasonably withheld. 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 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. City of Winter Springs Ordinance No. 2001-53 Page 6 of 18 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%) ofthe 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 ofthe 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 ofthe end of each calendar quarter for Franchise Fees collected during the preceding quarter. Quarterly payments shall be made on estimated quarterly Gross Revenues. Annually Franchise Fees shall be revised and payable based on actual Gross Revenues. 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 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 City of Winter Springs Ordinance No. 2001-53 Page 7 of 18 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 Franchise; (b) Company has failed to provide or maintain in full force and effect the liability and indemnification coverage as required herein; City of Winter Springs Ordinance No. 2001-53 Page 8 of 18 (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; (f) 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 in the application for or negotiation of the Franchise or any extension or renewal thereof; and (h) Company has failed to pay the Franchise Fee in the manner provided in this Franchise. 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 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 City of Winter Springs Ordinance No. 2001-53 Page 9 of 18 the Company thirty (30) days, or such greater amount oftime 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: 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 City of Winter Springs Ordinance No. 2001-53 Page 10 of 18 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 of the coverage, limits, and amounts ofthe 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 ofthe 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) $1,000,000 single limit liability for bodily injury and consequent death per occurrence; and (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 ofthe 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, City of Winter Springs Ordinance No. 2001-53 Page 11 of 18 operation, or maintenance by the Company of the Natural Gas Distribution System, and the acceptance of this Franchise on the part ofthe Company shall be deemed an agreement on the part ofthe 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, 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. City of Winter Springs Ordinance No. 2001-53 Page 12 of 18 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 ofthe 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 ofthe 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 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 City of Winter Springs Ordinance No. 2001-53 Page 13 of 18 (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. This paragraph is not intended to require the Company to pay the cost and expense for work performed by Company on private property at the request of the property owner (e.g., relocation of the Natural Gas Distribution System at the property owner's request). 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. 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 ofthe City to examine, at the City's discretion, any and all City of Winter Springs Ordinance No. 2001-53 Page 14 of 18 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 annual 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 estimated quarterly Gross Revenues and quarterly franchise fees collected in the Franchise Area, pursuant to Paragraph 8.5 herein. (c) An Annual Report showing the Company's actual annual Gross Revenues and annual franchise fees collected in the Franchise Area, pursuant to Paragraph 8.5 herein. Said Annual Report shall be provided by Company within a reasonable period of time after the end of each calendar year. 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. 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. City of Winter Springs Ordinance No. 2001-53 Page 15 of 18 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. 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 City of Winter Springs Ordinance No. 2001-53 Page 16 of 18 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 offederal 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 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 Company hereby gives and grants to City, the right at and after the expiration ofthis 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. City of Winter Springs Ordinance No. 2001-53 Page 17 of 18 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 January 1,2002 and upon receipt by City of Company' s written acceptance of the terms and conditions ofthis Ordinance. Said acceptance shall be received no later than thirty (30) days following the adoption of this Ordinance by the City Commission; failure of which, this Ordinance shall be null and void. IN WITNESS WHEREOF, the parties hereto hav of the day and year first above written. PAUL P. PARTYKA, Mayor ATTEST: ANDREA LORENZO-LUACES, City Clerk Approved as to legal form and sufficiency for the City of Winter Springs only Anthony A. Garganese, City Attorney First Reading: November 12, 2001 Second Reading: November 26, 2001 Effective Date: See Section 5. F:\DOCS\City of Winter Springs\Gas Franchise Agreement\Gas Franchise Final 12-18-01.wpd City of Winter Springs Ordinance No. 2001-53 Page 18 of 18 NATURAL GAS FRANCHISE AGREEMENT THIS NATURAL GAS FRANCHISE AGREEMENT (hereinafter "Agreement") executed on this 21st day of December, 2001, is entered into by and between CITY OF WINTER SPRINGS, a Florida municipal corporation, whose address is 1126 North State Road 434, Winter Springs, Florida 32708, (hereinafter "City"), and FLORIDA PUBLIC UTILITIES COMPANY, whose address is 401 South Dixie Highway, West Palm Beach, Florida 33401, (hereinafter "Company"). WHEREAS, the City and Company desire to enter into a natural gas franchise agreement pursuant to the terms and conditions of this Agreement and the franchise that was granted by the City in accordance with Ordinance No. 2001-53 which was adopted by the City Commission of Winter Springs on November 26,2001; and WHEREAS, the City and Company acknowledge that this Agreement is a material part of the franchise granted under Ordinance No. 2001-53 and but for this Agreement, the City would not have approved said Ordinance and granted the franchise. NOW, THEREFORE, in consideration of the mutual covenants and conditions set forth herein and other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1.0 Recital: The foregoing recitals are hereby incorporated herein and deemed a material part of this Agreement. 2.0 Franchise Accepted: The company hereby fully accepts the natural gas franchise granted by the City pursuant to Ordinance No. 2001-53. The Company agrees to comply with all the terms an conditions set forth herein and in Ordinance No. 2001-53 and further agrees to fully and faithfully perform the obligations and responsibilities contained therein. A copy of Ordinance No. 2001-53 is attached hereto as Exhibit "A" and hereby fully incorporated herein by this reference. Together this Agreement and Ordinance No. 2001-53 shall be known as "The City of Winter Springs and Florida Public Utilities Company Natural Gas Franchise." 3.0 Most Favored Franchise Fee Status: The terms and conditions set forth in Ordinance No. 2001-53 are hereby supplemented with the following: (a) Increased Franchise Fee. During the term of this Franchise, and any renewal or extension thereof, when and if the Company negotiates any gas franchise with any other City or County after the effective date of this Franchise, which has a franchise fee payable above that provided by this Franchise, the City shall have the right to amend this Franchise during the term hereof to provide for a franchise fee equal to that provided in the other franchise, and the Company hereby irrevocably consents to any such amended franchise fee adopted pursuant hereto. The City shall provide at least thirty (30) days notice prior to the effective date of any amended franchise fee adopted pursuant to this paragraph. Page I of 3 (b) Franchise Report. Annually, as of January 1 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. (c) Limitations. Any amended franchise fee adopted under this paragraph shall: 1. apply only to a change in the applicable franchise fee percentage and not to any change in class of service to which it applies. 11. apply only to gas franchises negotiated, in whole or in part, by the Company with any other City or County after the effective date of this Franchise and not to gas franchises acquired by the Company through acquisition, purchase or merger. 4.0 Cross-default: A default by the Company of any term and/or condition of this Agreement shall be deemed a default under the franchise granted under Ordinance No. 2001-53 and vice versa. In the event of such default under this Agreement or Ordinance No. 2001-53, the City shall have the right to terminate and revoke this Agreement and the franchise pursuant to the procedure set forth in Section 2, Article IX, Forfeiture or Revocation, of Ordinance No. 2001-53. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of this 21st day of December, 2001. CITY OF WINTER SPRINGS, FLORIDA RONALD W. McLEMORE, City Manager ATTEST: ANDREA LORENZO LUACES, City Clerk FLORIDA PUBLIC UTILITIES COMPANY CHARLES L. STEIN, Senior Vice President and Operating Officer Page 2 of 3 STATE OF FLORIDA COUNTY OF SEMINOLE Sworn to and subscribed before me this 4th day of January 2002, by RONALD W. McLEMORE, City Manager for City of Winter Springs, who is personally known to me, or who has produced as identification, and who did take an oath. Deborah Gillespie NOTARY PUBLIC My Commission Expires: March 21, 2004 STATE OF FLORIDA, COUNTY OF PALM BEACH Sworn to and subscribed before me this 21st day of December 2001, by CHARLES L. STEIN, Senior Vice President and Operating Officer for Florida Public Utilities Company, who is personally known to me, or who has produced as identification, and who did take an oath. Claudia L. Saylor NOTARY PUBLIC My Commission Expires: June 5, 2002 Page 3 of 3 Florida Public Utilities Company RECEIVED FEB 2, 2002 CITY OF WINTER SPRINGS CITY HALL 401 South Dixie Highway West Palm Beach, FL 33401 January 25, 2002 Ms. Andrea Lorenzo- Luaces City of Winter Springs City Clerk 1126 North State Road 434 Winter Springs, Florida 32708 RE: Ordinance No. 2001/53; Gas Franchise Dear Ms. Lorenzo-Luaces, Pursuant to section 5 of the referenced ordinance, Florida Public Utilities Company hereby files its acceptance of the natural gas franchise. Therefore, said ordinance shall take effect on January 1, 2002. We look forward to fulfilling the needs ofthe City and its constituents as related to this ordinance. If you have any questions, or need additional information, please contact me at (561) 838-1760 or at cstein@fpuc.com. Sineerely, C.L. Stein Sr. Vice President, COO CLS/cs cc: George Bachman, CFO, Treasurer Don Kitner, Director, Central Florida CITY OF WINTER SPRINGS NOTICE OF ADOPTION OF NATURAL GAS FRANCHISE The City of Winter springs proposes to adopt the follow- ing ordinance, as stated be- low: ORDINANCE NO. 2001-53 AN ORDINANCE OF THE CITY COM- MISSION OF THE CITY OF WINTER SPRINGS, FLORIDA RELATING TO THE GRANTING OF A GAS FRAN- CHISE WITHIN THE CITY OF WIN- TER SPRINGS TO FLORIDA PUBLIC UTILITIES COMPANY; PROVIDING FOR THE REPEAL OF PRIOR INCON- SISTENT ORDINANCES AND RESO LUTIONS; PROBVIDING FOR SEVER- ABILITY; AND PROVIDING FOR AN EFFECTIVE DATE. A public hearing on the adoption of proposed Ordi- nance 2001.53 will be held on November 26, 2001 at 6: 30 p.m. or soon thereafter, at the Commission Chambers, Citv of Winter Springs Cltv Hall, 1126 East .State Road 434 Winter SPrings, FIorida Interested parties mav appear at the meeting and b e heard regarding this meeting. The proposed ordinance may be inspected by inter- ested parties between 8 am and 5 pm Monday through Friday, at the City Clerk's Office at 1126 East State Road 434, Winter Springs Florida. For more information call (407) 327-1800 #227. Persons with disabilities needing assistance to partic- ipate in any of these pro ceedings should contact the Emplovee Relations Depart ment Coordinator, 48 hours in advance of the meeting at (407) 327.1800 #236. This is a public hearing. .If vou de- cide to appeal any decision made bv the City Commis- sion with respect to any matter considered at this meeting, you will need a re- cord of the proceedings, and for such purposes, you may need to ensure that a verba- tim record of the proceed- ings is made upon which the appeal is based. Andrea Lorenzo-Luaces City Clerk CSEL4190155 Nov 16, 2001 Orlando Sentinel Published Daily State of Florida } S.S. COUNTY OF ORANGE Before the undersigned authority personally appeared DEBORAH TONEY , who on oath says that he/she is the Legal Advertising Representative of Orlando Sentinel, a dally newspaper published at ALTAMONTE SPRINGS in Seminole County, Florida; that the attached copy of advertisement, being a NOTICE OF PROPOSE in the matter of ord. 2001 53 in the SEMINOLE Court was published in said newspaper in the issue; of 11/16/01 Affiant further says that the said Orlando Sentinel is a newspaper published at ALTAMONTE SPRINGS ,in said Seminole County, Florida, and that the said newspaper has heretofore been continuously published in said Seminole County, Florida, each Week Day and has been entered as second-class mail matter at the post office in ALTAMONTE SPRINGS in said SEMINOLE County, Florida, for a period of one year next preceding the first publication of the attached copy of advertisement; and affiant further says that he/she has neither paid nor promised any person, firm or corpora' discount, rebate, commission or refund for the purpose of securing this advertisement for publication in the said newspaper. The foregoing instrument was acknowledged before me this 16 day of NOV, 2001, by DEBORAH TONEY who is personally known to me and who did take oath. (SEAL)