4326 FPUC Util gas franchiseOrdinance No. 4326
An Ordinance of the City of Sanford, Florida granting to Florida Public
Utilities Company, its successors and assigns, a non - exclusive
natural gas franchise agreement and the terms and conditions
thereof; prescribing the means under which said franchise agreement
may be exercised; providing for legislative findings and intent;
providing for administrative implementation; repealing all
conflicting ordinances; providing for severability; providing for non -
codification and providing for an effective date with a period of
acceptance by the franchisee.
Whereas, the City Commission of the City of Sanford has control and regulatory
jurisdiction relative to public roads, rights -of -way, streets, alleys, bridges, easements
and other public places located within the City Limits and exercises dominion and
control over such places in the context of its possessory rights as well as having
authority within the City Limits of the City under the police powers and land
development regulatory authority under controlling law; and
Whereas, the City Commission of the City of Sanford finds it in the public interest
to ensure that high quality gas service is maintained within the City limits while protecting
the possessory land rights and relates rights and powers of the City; and
Whereas, the City Commission of the City of Sanford finds that the granting of
nonexclusive franchises is the best means of assuring that the above - described interests
of the City of Sanford are promoted; and
Whereas, the Florida Public Utilities Company (hereinafter referred to as the
"Company ") has requested permission of the City to continue its franchise which
permitted the Company to erect, construct, operate and maintain a gas system; to
import, transport, sell and distribute gas, whether natural, manufactured or mixed within
the City Limits of the City; and, for these purposes, to establish and maintain the
11 P a _—
appropriate, desirable or necessary equipment and to lay and maintain gas mains,
service pipes and any reasonable appurtenances appropriate, desirable or necessary to
the sale, transmission and distribution of the gas along the rights -of -way of the City; and
Whereas, the Company has indicated to the City that it is desirous and willing to
continue to undertake the activities set forth in the prior recital pursuant to this
Franchise Agreement with the City and franchise grant from the City consistent with the
terms and conditions set forth herein; and
Whereas, the City Commission of the City of Sanford's proprietary rights in the
rights -of -way within the City are valuable and the public properties associated therewith
are valuable said property rights being acquired and maintained at great public expense
and the right to use such property interests is a valuable property right without which the
Company would be required to invest substantial capital and property acquisition costs
and expenses; and
Whereas, at all times it is important to the City Commission of the City of Sanford
that the permitted use of its rights -of -way by the Company be subject to the continuing
obligation by the Company that the rights -of -way be promptly and fully restored to a
safe and secure condition in order to protect the public health, safety and welfare as
well as the aesthetic values of the citizens of the City of Sanford; and
Whereas, the City Commission of the City of Sanford, under the provisions of
controlling State law, has the legal power and authority to grant franchises for the
purposes as set forth in this Ordinance.
Now, therefore, be it enacted by the People of the City of Sanford, Florida:
Section 1. Legislative findings and intent.
2 1Pag$
(a). The City Commission of the City of Sanford hereby adopts and
incorporates into this Ordinance the City staff report and City Commission agenda
memorandum relating to this Ordinance as well as the recitals (whereas clauses) to this
Ordinance said recitals being fully adopted and incorporated as an integral part of this
Ordinance all of which documents have been, and are, public records.
(b). The City of Sanford has complied with all requirements and procedures of
Florida law in processing and advertising this Ordinance.
(c). Although not a land development regulation or adopting land development
regulations, this Ordinance is consistent with the goals, objectives and policies of the
Comprehensive Plan of the City of Sanford.
Section 2. Definitions. For the purposes of this Franchise Agreement, the
following terms shall have the meaning given herein; provided, however, that the
definitions of terms adopted by the Florida Public Service Commission may be used by
the City of Sanford to address issues that may arise from time -to -time.
(a). Applicable Governing Document means the Company's Tariff, as it is on
file with the Florida Public Service Commission and as the same may be amended from
time to time, as well as any applicable ordinances, codes, rules, regulations and laws
required to be observed in the performance and enforcement of this Franchise
Agreement, but exclusive of the Existing City Requirements and Additional City
Requirements (both as defined herein).
(b). Customer means any person, firm, public or private corporation, or
governmental agency served by the Company within the corporate limits of the City.
(c). City means the City of Sanford, a Florida municipality, located in Seminole
3 1 P a g
County, Florida, its successor and assigns.
(d). Company means the Florida Public Utilities Company, a Florida corporation,
its successors and assigns.
(e). Distribution System means any and all transmission pipe lines, main pipe
lines and service pipe lines, together with all necessary or desirable appurtenances as
may be reasonably necessary or desirable for the importation, transport, sale and
distribution of Natural Gas for the public and private use of Customers within the
corporate limits of the City together with the right to lay and maintain gas mains, service
pipes and any other reasonable facility, equipment or appurtenance reasonably necessary or
desirable to accommodate the sale, transportation and distribution of gas within the City Limits
of the City.
(f). Facilities, equipment or appurtenances means pipe, pipe line, tube, main,
service, trap, vent, vault, manhole, meter, gauge, regulator, valve, conduit, appliance,
attachment, and structure or structures reasonably used in the distribution of gas, located
or to be located in, upon, along, across, or under the streets.
(g). Franchise or Franchise Agreement means this Ordinance, as enacted by the
City and accepted by the Company, as provided herein, as the same may be amended
from time -to -time.
(h). FPSC means the Florida Public Service Commission of the State of
Florida or any successor agency.
(i). Gas or Natural Gas means natural gas and /or manufactured gas and /or a
mixture of gases which is lawfully distributed in pipes and measured by meter on the
Customer's premise. The terms shall not mean propane gas or liquefied petroleum gas
4 1 P a g e
(commonly referred to as "bottled gas ") or any other fuel that is typically delivered by truck
and stored in tanks.
Q). Grantor means the City, its successors and assigns.
(k). Gross Revenues means all revenues received by the Company from any
Customer, excluding deposits, prepayments, turn on /off charges, meter installation
charges, and any other revenue not generated directly and solely from the sale,
distribution, transportation, and transmission of Gas. Gross Revenues shall also
exclude revenues from those Customer's designated by Company as "interruptible,"
"industrial," and "other ", until and unless a franchise or utility tax is imposed on such
Customers by City, either independently or collectively, of all other competing utility
services in the City Limits, including, without limitation, the imposition of franchise or
utility taxes on all grades of fuel oils or gases used for such Customers at a relatively
equal basis on the franchise fee due hereunder plus utility taxes as levied on Gas
pursuant to statute and /or rule.
Section 3. Grant.
(a). The City hereby grants to the Company the non - exclusive right, privilege
and franchise to lay, erect, construct, operate and maintain in, on or under any and all
of the public streets, alleys, highways, waterways, bridges, easements and other public
places of the City ( "City Rights -of- Way "), as they now exist or may be hereafter
constructed, opened, laid out or extended within the present incorporated limits of the
City, or in such territory as may be hereafter added or annexed to, or consolidated with,
the City, a Distribution System, subject to the terms and conditions herein contained.
The Company agrees to address issues relating to the undergrounding of its facilities
51 P
within City Rights -of -Way and it is recognized that the City will receive input from the
Company relative to City Rights -of -Way that may be constructed, opened, laid out or
extended in the future, but shall be under no obligation to expend its funds to address
the accommodation of the Company's facilities in such event.
(b). The City agrees that, during the effective period of this Franchise
Agreement, it will not compete with the Company relative to the sale of Gas within
the City unless it becomes necessary to do so in the event of a public emergency.
In such event the City shall provide evidence to the Company of its actions and a
statement as to the public necessity therefor.
(c). In the event of an Alternative Gas Provider (as defined herein), the
City shall take steps to ensure that the rights granted to the Company under this
Franchise Agreement are not interfered with such as the physical location of the
Company's facilities, equipment and appurtenances.
(d). The Company shall maintain and operate its Distribution System and
render service in accordance with the FPSC's rules and regulations and the
requirements thereof. In the event of deregulation in any respect, the Company shall
render service as set forth in the codes, ordinances, rules and regulations of the City
except that, unless mandated by controlling law, the City shall not regulate rates. The
standards of service established by the FPSC shall continue in effect until the City has
had a reasonable time to establish its own regulatory scheme.
(e). This Franchise Agreement shall not be interpreted or construed to allow for
the installation of any above - ground facilities in, on, or under any City property or in any
location or manner where such installation would unreasonably interfere or create a
6 1 P a
hazardous condition with respect to motor vehicular, bicycle, or pedestrian traffic or
movement or any other public use. In the event that the City closes, vacates or
otherwise abandons any of the City Rights -of -Way, the City shall, if it has legal authority
to do so, provide to the Company an easement for the Distribution System already
located in such City Rights -of -Way in such form and content as is reasonably acceptable
to the Company for the duration of this Franchise Agreement.
Section 4. Term Of Franchise.
(a). The duration of a non - exclusive franchise granted pursuant to this Franchise
Agreement shall be thirty (30) years from the effective date of this Franchise Agreement;
provided, however, that the City, at its sole election, may terminate this Franchise
Agreement prior to the commencement of each ten (10) year period commencing after
the initial ten (10) year period if the City determines that it would be in the public interest
to do so; provided, further, however, that the Company shall be allowed to present, for
the consideration of the City, public benefits or payments, of an additional and
supplemental nature, that the City may accept in order to allow the extension to move
forward.
(b). At the end of the term, unless either party provides written notice to the
other party at least sixty (60) days prior to the expiration of the term, this Franchise
Agreement shall be automatically renewed for one six (6) month period during which
time the City and Company may negotiate on a mutually agreed upon new franchise
agreement.
Section 5. No Assignment; Exception.
(a). The City may not lease, assign or otherwise alienate or dispose of this
71 Pa P
Franchise Agreement without the prior written consent of the Company, which may be
given or withheld by the Company in its sole and absolute discretion. The Franchise
hereby granted shall not be leased, assigned or otherwise alienated or disposed of by
the Company except with the prior express written consent of the City Commission of the
City, which shall not be unreasonably conditioned, withheld or unduly delayed upon
written request by the Company. No assignment shall be allowed without the assignee
assuming the terms of the Franchise Agreement.
(b). Notwithstanding the foregoing provisions of Subsection (a), the Company
may, without the consent of the City, lease, assign or otherwise alienate and transfer this
Franchise in connection with the lease or sale of the Distribution System or upon the
Company's merger or consolidation with, or transfer to, any other person or entity
(including any affiliate or subsidiary of the Company) or pledge or mortgage of such
Franchise in connection with the physical property owned and used by it in the
operation of the Distribution System for the purpose of securing payment of monies
borrowed by the Company or a Company affiliate.
Section 6. Use Of City Streets.
(a). The Company shall supply a vehicular traffic maintenance plan along
with each permit application. The Distribution System shall be erected, placed, or laid in
such manner as to not unreasonably interfere with other public uses of said streets,
alleys, avenues, easements, and public grounds, and said streets shall not be
unnecessarily obstructed, and before, except in a bona fide emergency situation or in any
situation in which a permit is not required by law, if any, the Company makes any
excavation or disturbs the surface of any of the streets, alleys, or other public places, it
8 1P
g
shall make application for a permit to the appropriate City authority and shall use
reasonable efforts (consistent with the public interest and sound and generally accepted
practices and principles) to place such streets or public places in as good condition and
repair as before such excavation or disturbance was made with due diligence and
dispatch. The City shall act upon each permit application within a reasonable time.
Permits for emergency work shall be applied for after the fact. The City shall not be
required to incur any costs or expenses relative to the emergency work or any other
work of the Company.
(b). The Company hereby agrees to abide by all the rules and regulations and
ordinances which the City has in effect as of the date of this Franchise (the "Existing
City Requirements ") and any additional or new rules, regulations, or ordinances adopted
by the City after the date of this Franchise (the "Additional City Requirements).
Notwithstanding anything to the contrary contained in this Franchise, the Company shall
not be required to comply with, and the City hereby waives the Company's compliance
with, any Existing City Requirements or Additional City Requirements to the extent any
of the same (i) are contrary to the rights set forth herein of the Company, (ii) materially
increase (or are reasonably likely to materially increase) the burdens placed on the
Company hereunder or materially increase (or is reasonably likely to materially
increase) the cost of performance by the Company under this Franchise, (iii) will have
the effect of singling out the Company or are not likely to be applied (or are not in fact
applied) uniformly among all persons utilizing or accessing the City Rights -of -Way, or
(iv) are inconsistent with or preempted by any Applicable Governing Document. The
Existing City Requirements and Additional City Requirements may pertain to, among
91 P a V
other matters and things, utility coordination and accommodation and the protection of
streets and properties as well as access matters. The parties shall engage in utility
coordination with one another when any project of a party is likely to affect the other
party or when any other permitted activity is likely to affect the other party.
(c). The Company shall ensure that reasonable access and egress from and
ingress to is maintained with regard to all properties affected by its activities performed
under this Franchise Agreement.
(d). The provisions of this Section relate to the "City street system" as that term is
defined in Section 334.03(3), Florida Statutes, as meaning " ... all local roads within a
municipality, and all collector roads inside that municipality, which are not in the county
road system." The City does not warrant title to any street or rights -of -way located within
the City regardless as to whether the City purports to have a proprietary or regulatory
interest in such property.
Section 7. Maintenance And Construction Standards.
(a). The Company shall construct, install, operate, and maintain its Distribution
System in a manner consistent with all Applicable Governing Documents. With regard to
all actions of the Company that relate to City Rights -of -Way, the Company shall provide
to the City sufficient details related to the means and extent to which such actions are
being taken.
(b). Subject at all times to the Company's reasonable discretion or, without
discretion if required by Applicable Governing Documents, all installation, operation and
maintenance of facilities or equipment shall be of a permanent nature, durable and
installed in accordance with the applicable sections and requirements of, at a minimum,
101Page
the following: the Code of Federal Regulations, Title 49, Subtitle B, Chapter 1,
Subchapter D, Pipeline Safety, Part 192, Transportation of Natural Gas and Other Gas
by Pipeline: Minimum Federal Safety Standards; the FPSC; the Florida Department of
Transportation Utility Accommodation Manual; the National Electrical Code; the National
Fire Protection Association NFPA 54; the National Fuel Gas Code; and all other
Applicable Governing Documents.
(c). Operational Standards and Performance Monitoring. The Company shall
conduct all operations and performance tests pursuant to the Applicable Governing
Documents.
Section 8. Laying Of Pipe.
All components of the Distribution System shall be laid out consistent with all
Applicable Governing Documents.
Section 9. Construction Work.
(a). The City reserves the right to permit to be laid electric conduits, water and
gas pipes and lines, cables, sewers, and to do and permit to be done any underground
work that may be deemed necessary or proper by the City or other governmental body
having jurisdiction in, across, along, or under any City Rights-of-Way.
(b). If the City or another governmental body having jurisdiction in, across,
along or under any City Rights-of-Way (the "Authority") reasonably determines that it is
necessary to alter, change, adapt, or conform any portion of the Distribution System (an
"Alteration"), the Authority shall provide written notice of such determination together
with sufficient details related to the means the Authority proposes that the Company
accomplish such Alteration so as to enable the Company to independently review the
111 P
necessity of such Alteration and to consider and propose alternative means to
accomplish the purpose of the Alteration being proposed by the Authority.
(c). If the Authority and the Company mutually agree upon the necessity of the
Alteration and the means by which the Company will accomplish the Alteration, the
Company shall make such Alteration, without claim for reimbursement.
(d). If the City requires the Company to adapt or conform any portion of its
Distribution System or in any way to alter or change its property to enable any person or
entity, other than the City, to use said City Rights -of -Way as part of its permitting or
approval process or otherwise, the City shall require such person or entity desiring or
occasioning such alteration or change, to reimburse the Company for any loss, cost or
expense caused by or arising out of such alteration o r c h a n g e of any portion of
the Distribution System or Company property; provided, however, with regard to the
relocation, from time -to -time of the Company's facilities necessitated by the necessity of
the City or its contractors to perform projects within the City Rights -of -Way, the
Company shall be responsible to relocate its facilities as necessary, and at no cost to
the City, and the City agrees to reasonably coordinate such activities with the Company.
(e). The Company agrees that it will not intentionally interfere with, change, or
injure any water pipes, drains, or sewers of the City unless it has received specific
permission from the City or its duly authorized representative.
Section 10. Additional City Rights In Franchise.
(a). In the event the Company fails to complete any work required by this
Franchise Agreement within the time established, to the reasonable satisfaction of the
City, and provided the City has given the Company written notice of such failure and the
12 1 P
Company fails within thirty (30) days of its receipt of the City's notice to either (i) object
in writing to the City's notice or (ii) commence and diligently pursue to complete such
work, the City may cause such work to be accomplished and the Company shall
reimburse the City the reasonable costs thereof within thirty (30) days after receipt of an
itemized list of such reasonable costs.
(b). The City reserves the right, during the term of any franchise granted
hereunder and at its sole cost and expense, unless resulting from a wrongful act of the
Company, to reasonably inspect all construction or installation work performed subject
to the provision of this Franchise Agreement to ensure compliance with the terms of the
Franchise and this Franchise Agreement. The City may also randomly inspect any
portion of the Distribution System to ensure compliance with the technical standards under
which the Company is authorized to operate. In the event that the City discovers a
wrongful act of the Company, such inspection shall be at the cost of the Company.
Notwithstanding anything to the contrary contained in this Franchise Agreement, in
exercising any of its inspection rights, the City shall not unreasonably interfere with the
Company or the Distribution System and the Company, reciprocally, agrees not to
unreasonably interfere with the City or the its activities or in a manner inconsistent with
this Franchise Agreement.
Section 11. Franchise Fee.
(a). Following the effective date of this Franchise Agreement, the Company, its
successors or assigns, shall pay to the City, or its successors, a sum of money which is
equal to sic percent (6 %) of Gross Revenue received during any annual quarter.
Installments of any franchise fees due under this Franchise Agreement shall be deemed
131Patg,
paid on time if post- marked within forty -five (45) days of the close of the preceding
annual quarter ending March 31, June 30, September 30, and December 31.
(b). For failure to pay the undisputed franchise fee on time, the Company shall
pay to the City interest on the amount unpaid at a rate equal to the lower of twelve percent
(12 %) per annum or the maximum rate allowed by law from the date the amount was due
to the date it is finally paid.
(c). The payment of the franchise fee as set forth herein shall not operate in
any way to exempt the Company from its obligation to pay and all lawfully imposed
taxes, fees and charges assessed by the City such as, by way of example only, the
local business tax.
(d). The City is hereby granted "most favored nation" status in that the
Company agrees that, in the event that the Company enters a franchise agreement
with another Florida jurisdiction which provides a rate or formula more favorable to the
jurisdiction than is provided herein, then the Company shall disclose such rate to the
City.
Section 12. Franchise Parity.
(a). If, during the term of this Franchise Agreement, the City, by franchise
agreement or ordinance, takes action to allow other gas providers, gas consumers or
gas transporters ( "Alternative Gas Providers ") the right, privilege or franchise to
construct, maintain, operate or use gas facilities in, under, upon over or across the
present or future City Rights -of -Way, for the purpose of supplying or delivering Natural
Gas to persons or entities located within the corporate limits of the City or receiving such
gas from a person or entity other than the Company within such corporate limits, and
141 P,ag;e
imposes a franchise compensation obligation or an equivalent on such Alternative Gas
Provider for any customer or class of customer that is less than that imposed with
respect to the same Customer or class of Customers under this Franchise Agreement,
the franchise compensation rate and/or base to which such rate is applied with
respect to the same class of customers shall be disclosed to the Company.
(b). In the event that the City determines not to impose franchise
compensation by agreement, ordinance or otherwise on any such Alternate Gas
Provider, the City shall disclose such action to the Company.
Section 13. Accounts And Records.
(a). The Company shall maintain accounting, maintenance, and construction
records as prescribed by the FPSC. The Company shall establish and maintain
appropriate accounts and records in such detail that Gross Revenue is consistently
declared separately from all other revenues. During this Franchise Agreement and for a
period of six (6) months thereafter, the City may, upon not less than thirty (30) days'
notice to the Company, but not more than once in any calendar year, examine, audit
and make photocopies of, the Company's books of account and other business records
solely as they relate to Gross Revenues. Such examination of books of account shall
be at the City's sole expense.
(b). To the extent consistent with Florida law, and upon the Company's
request, such examination, audit and provision of photocopies of such books and
records shall be subject to the City's execution and delivery of a confidentiality
agreement.
Section 14. Insurance.
151 P a g
(a). At the time of, and concurrently with, the filing of written acceptance, the
Company shall file with the City Clerk and shall keep in full force and effect at all times
during the effective period of this Franchise Agreement, insurance and /or self- insurance
certificates evidencing comprehensive general liability coverage including, but not
limited to, bodily injury; property damage liability; products and completed operation;
and contractual liability coverage; each certificate shall reflect that the City is an
additional insured for liability arising out of this Franchise Agreement. Any primary
insurance policy must be issued by a company having a management rating in
Best's Insurance Guide of BB or better.
(b). Each such policy or policies of insurance shall be in the minimum sum of one
million dollars ($1,000,000.00) for injury or death to any one (1) person, and in the
minimum sum of five million dollars ($5,000,000.00) for injury or death to all persons
where there is more than one (1) person involved in any one (1) accident, and in the
minimum sum of one million ($1,000,000.00) for damage to property, resulting from any
one (1) accident, and each of the said minimum sums shall remain in full force and shall
be undiminished during the effective period of this Franchise Agreement. The coverage
requirements set forth in this Section 14 may be satisfied, in whole or in part, with self-
insurance.
(c). The City may require proof of insurance from the Company at any time, in
its sole and absolute discretion, and the Company shall, accordingly, provide proof of
insurance to the City upon such request.
Section 15. Indemnification.
(a). The Company shall indemnify and save the City, its servants, agents,
16 2e
employees, licensees, contractors and invitees, harmless from and against any and all
liability, actions, demands, claims, damages, losses and court costs, including taxed
and untaxed costs, and reasonable attorneys' fees, whether suit be brought or not, and
includes, without limitation, expenses incurred in any appellate or bankruptcy
proceeding (including reasonable legal and investigative expenses) (collectively,
"Expenses "), which may be brought against or suffered, sustained, paid or incurred by
the City, its servants, agents, employees, contractors, licensees and invitees, arising
from, or otherwise caused by:
(i). any breach by the Company of any of the provisions of this
Franchise Agreement; or
(ii). the negligence or misconduct of the Company, or any of its
servants, officers, officials, agents, employees, licensees, contractors or invitees arising
in any way relative to the Company's carrying on its business within the City limits.
(b). The City shall indemnify and save the Company, its servants, agents,
employees, licensees, contractors and invitees, harmless from and against any and all
liability, actions, demands, claims, damages, losses and Expenses, which may be
brought against or suffered, sustained, paid or incurred by the Company, its servants,
agents, employees, contractors, licensees and invitees, arising from, or otherwise
caused by:
(i). any breach by the City of any of the provisions of this Franchise
Agreement if such liability is cognizable under controlling law; or
(ii). the gross negligence or willful misconduct of the City, or any of its
servants, agents, employees, licensees, contractors or invitees, in carrying on the
57 1 P
j
business of the City subject to the substantive and dollar limitations set forth in
controlling law.
(c). Notwithstanding anything to the contrary herein contained, in no event
shall the City or the Company be liable under this Franchise Agreement, in any way, for
any reason, for any indirect, special or consequential damages (including damages for
pure economic loss, loss of profits, loss of earnings or loss of contract), howsoever
caused or contributed to.
(d). Indemnification is conditioned upon the indemnified party providing notice
to the indemnifying party within thirty (30) days after the indemnified party knew or
should have known of the claim.
(e). Nothing herein is intended to act as a waiver of the City's rights, privileges,
and immunities under the doctrine of sovereign immunity and/or limits of liability set
forth in Section 768.28, Florida Statutes.
(f). The provisions of this Section shall survive this Franchise Agreement for a
period of one year.
Section 16. Termination.
(a). In the event that the Company commits, at any time, a material breach of
any of the material covenants, terms, and conditions of this Franchise Agreement, the
City may terminate this Franchise Agreement, provided that the City shall first have
served the Company with a written notice required herein, setting forth in reasonable
detail all matters pertinent to such material violation or default, and the Company shall
have failed within sixty (60) days after service of such notice or such longer period of
time as may be reasonably necessary to present a plan to the City to effect such cure
18 1 P
pursuant to such plan within a reasonable period of time after the City's approval of the
plan. Approval of the plan by the City shall not be unreasonably withheld, conditioned
or delayed.
(b). In the event that the City commits, at any time, a material breach of any of
the material covenants, terms, and conditions of this Franchise Agreement, the
Company may terminate this Franchise Agreement, provided that the Company shall
first have served the City with a written notice required herein, setting forth in
reasonable detail all matters pertinent to such material violation or default, and the City
shall have failed within sixty (60) days after service of such notice or such longer period
of time as may be reasonably necessary to present a plan to the Company to effect
such cure pursuant to such plan within a reasonable period of time after the Company's
approval of the plan. Approval of the plan by the Company shall not be unreasonably
withheld, conditioned or delayed
(c). If, at expiration of the term of this Franchise Agreement and after petition
by the Company, the City fails or refuses to renew this Franchise Agreement, then upon
further petition by the Company, the Company's property, consisting of all works
constructed and used in the operation and use of this Franchise Agreement, together
with the appurtenances, materials, fixtures, machinery, and real estate appertaining
thereto, which is on hand at the time of the expiration of this Franchise Agreement, may
be purchased by the City, and the City shall have first right of refusal to do so, at a price
to be mutually agreed upon by the parties; provided, however, if the price for the same
cannot be agreed upon, the price shall be determined by an arbitration board consisting
of three persons, one of whom shall be selected by the City, one shall be appointed by
19 1P,
the Company, and the two persons so selected shall select a third member of said
board; and provided further, that in the event said board cannot agree as to the price to
be paid by the City, then the City may, in its sole election, file appropriate condemnation
proceedings under Chapter 73, Florida Statutes.
Section 17. Annexation And Extension Policy.
(a). New persons or entities may be added as Customers to the Distribution
System in accordance with the Company's Tariff and subject to the feasibility
requirements set forth therein. During the term of this Franchise Agreement, the
City shall deliver to the Company such information (including City limit streets and
block numbers) as is reasonably requested by the Company to determine which of
its customers are located within the City limits.
(b). The City shall also provide information of annexation or contraction no
less than thirty (30) days prior to the effectiveness of any change in the City's City
Limits, whether by addition, annexation or consolidation, or upon the Company's
reasonable request. The Company shall be relieved of any obligation to pay
franchise fees, for new Customers, to the extent the City has materially failed to
provide information in accordance with this Section.
(c). The Company agrees and understands that the City has an active
policy of annexation of additional lands within the City and has entered joint
planning agreements with the government of Seminole County relative to planned
municipal and public service boundaries.
Section 18. Operational Standards And Performance Monitoring.
The Company shall put, keep and maintain all parts of the Distribution
20 1Pc i -Y
System in good condition throughout the entire franchise period, subject to reasonable
wear and tear and sound and generally accepted industry standards.
Section 19. Rights Of Individuals.
The Company shall comply at all times with all Applicable Governing Documents
including, without limitation, those relating to non - discrimination and public records.
Section 20. Changes In Provisions Hereof; Entire Franchise Agreement.
Changes in the terms and conditions hereof may be made by written agreement
between the City and the Company and the enactment of an amendatory ordinance.
This Franchise Agreement constitutes the entire agreement of the parties with respect
to the subject matter hereof, and may not be modified or amended except by a written
instrument equal in dignity herewith and executed by the parties to be bound thereby.
Section 21. Miscellaneous.
(a). Non - Enforcement Not a Waiver. Neither party shall be relieved of its
obligations to comply promptly with any of the provisions of this Franchise Agreement
by any failure of the other party to enforce prompt compliance. Failure of a party to
enforce any breach by the other party under this Franchise Agreement shall not
constitute a waiver by the non - breaching party.
(b). Governing Law; Venue; Jury Waiver. This Franchise Agreement and any
disputes arising from its adoption or from any franchise granted pursuant hereto shall be
governed by the laws of the State of Florida and the Applicable Governing Documents.
Venue shall be in the Eighteenth Judicial Circuit of the State of Florida in and for
Seminole County, Florida. The parties hereby knowingly, voluntarily and intentionally,
after careful consideration and an opportunity to seek legal advice, waive their right to
211Pa V
have a trial by jury in respect of any litigation arising out of or in any way connected with
any of the provisions of or matters related to this franchise agreement.
(c). Exercise Of Police Power. In addition to the limitations otherwise herein
appearing, this Franchise Agreement is subject to all lawful exercise of the police power
by the City and other duly authorized regulatory State and Federal bodies and shall
comply with any and all ordinances which the City has adopted or shall adopt applying
to the public generally. Notwithstanding anything to the contrary contained in this
Franchise Agreement, the Company shall not be required to comply with, and the City
hereby waives the Company's compliance with, any exercise of the City's police power
or any ordinance, law or regulation adopted by or on behalf of the City to the extent any
such action (i) is materially contrary to the rights set forth herein of the Company such
as to result in a failure of consideration, (ii) materially increases (or is reasonably likely
to materially increase) the burdens placed on the Company or materially increases (or is
reasonably likely to materially increase) the cost of performance by the Company under
this Franchise Agreement such as to result in a failure of consideration, (iii) will have the
effect of unreasonably singling out the Company or is not likely to be applied (or is not
in fact applied) uniformly among all persons utilizing or accessing the City Rights -of-
Way, or (iv) is inconsistent with or preempted by ay laws of the State of Florida or the
United States. Subject to the immediately preceding sentence, the City reserves the
right to engage in such police power regulations and land development regulatory
powers as the City may find to be in the public interest in its sole discretion.
(d). Eminent Domain And Municipal Rights. Nothing in this Ordinance shall in
any way or to any extent be construed to waive, modify, or abridge the City's right of
22 1 �} a
eminent domain in respect to the Company or any of the police or regulatory powers of
the City.
(f). Delegations Of Authority. Any right or power in, or duty impressed upon
any officer, employee, department, or board of the City, shall be subject to transfer by
the City Commission by law to any other officer, employee, department, or board of the
City. The City reserves all rights not specifically granted herein and the enumerations of
the rights herein shall not be construed to be a limitation of any right or power the City
may otherwise have. The City Manager of the City is charged with the day -to -day
administration and implementation of this Franchise Agreement.
(g). Compliance With Law. Subject to the of this Franchise Agreement, the
Company shall, at all times during the effective period of this Franchise Agreement and
for so long as providing Gas to Customers, comply with the Applicable Governing
Document.
(h). Notices. All notices and other communications under this Franchise
Agreement shall be in writing and shall be deemed given when (i) delivered personally
to that party, (ii) sent by facsimile transmission (with electronic confirmation, but e-mail
shall not be permitted under this Section) to that party at the facsimile number for that
party set forth below, (iii) on the fifth (5th) business day after being mailed by certified
mail (postage prepaid and return receipt requested) to that party at the address for that
party set forth below, or (iv) on the day delivered by Federal Express or any similar
express delivery service for delivery to that party at that address. All notices shall be
addressed as follows:
For the City: City Manager
2 3 1 P a e
City Hall
300 North Park Avenue
Sanford, Florida 32771
For the Company: Florida Public Utilities Company
105 6th Street NW
Winter Haven, Florida 33881
Attention: Director, Natural Gas Operations
with a copy to: Florida Public Utilities Company
1641 Worthington Road, Suite 220
West Palm Beach, Florida 33409
Attn: Director of Regulatory Affairs
Fax: (561) 366 -1525
with a copy to: Baker & Hostetler LLP
200 S. Orange Avenue, Suite 2300
Orlando, Florida 32801
Attention: Jeffrey E. Decker
Fax: (407) 841 -0168
Any party may provide or change its facsimile number or address for notices under this
Franchise Agreement at any time by giving the other party notice of such change
delivered in conformity with this Section.
(i). Conflicts Of Interest. The Company agrees that it will not engage in
any action that would create a conflict of interest in the performance of its obligations
pursuant to this Franchise Agreement with the City or which would violate or cause
others to violate the provisions of Part 111, Chapter 112, Florida Statutes, relating to
ethics in government.
0). EEO. The Company agrees that it will not discriminate against any
contractor, employee or applicant for employment or work under this Franchise
Agreement because or on account of race, color, religion, sex, age or national origin
and will take affirmative steps to insure that applicants are employed and employees
are treated during employment without regard to race, color, religion, sex, age or
24 1 P - e
national origin.
Section 22. Conflicts. All ordinances or part of ordinances in conflict with this
Ordinance are hereby repealed.
Section 23. Severability. If any section, sentence, phrase, word, or portion of
this Ordinance is determined to be invalid, unlawful or unconstitutional, said
determination shall not be held to invalidate or impair the validity, force or effect of any
other section, sentence, phrase, word, or portion of this Ordinance not otherwise
determined to be invalid, unlawful, or unconstitutional.
Section 24. Attorney's Fees and Expenses. In the event any party initiates
action to enforce its rights hereunder, the substantially prevailing party shall recover
from the substantially non - prevailing party its reasonable Expenses. All such Expenses
shall bear interest at the highest rate allowable under the laws of the State of Florida
from the date the substantially prevailing party pays such Expenses until the date the
substantially non - prevailing party repays such Expenses. Expenses incurred in
enforcing this Section shall be covered by this Section. For this purpose, the courts are
requested by the parties to award actual costs and attorneys' fees incurred by the
substantially prevailing party, it being the intention of the parties that the substantially
prevailing party is completely reimbursed for all such costs and fees. The parties
request that inquiry by the court as to the fees and costs shall be limited to a review of
whether the fees charged and hourly rates for such fees are reasonable for the services
provided and consistent with the usual and customary fees and costs charged by
competent attorneys for similar services
Section 25. Force Majeure. Any prevention, delay or stoppage of work or
25 1 P a U e
other obligations to be performed by either party that are due to strikes, labor disputes,
inability to obtain labor, materials, equipment or reasonable substitutes, acts of nature,
acts of God, governmental restrictions, regulations or controls, judicial orders, enemy or
hostile government actions, civil commotion, fire or other casualty or other causes
beyond the reasonable control of the party shall excuse performance and other
obligations by the party for a period equal to the duration of that prevention, delay or
stoppage. In no event shall any material default by Company due to any of the
foregoing constitute grounds for termination of this Franchise Agreement. In no event
shall economic hardship experienced by either party constitute a force majeure event
under this Franchise Agreement. No Force Majeure event shall excuse a party's
obligation to pay money pursuant to this Franchise Agreement. If either party shall be
prevented by a force majeure event from performing any of its obligations other than to
pay money pursuant to this Franchise Agreement, then the party unable to perform
shall: (a) promptly notify the other party in writing of the act, event, or condition that
such party asserts constitutes a force majeure event; (b) specify the basis for its claim;
(c) undertake all commercially reasonable actions to mitigate and eliminate the adverse
effects of the claimed force majeure event; (d) describe the actions that the party is
taking to overcome and eliminate the adverse effects of such force majeure event; and
(e) keep the other party informed of its progress in restoring its ability to perform its
obligations under this Franchise Agreement. The party asserting its inability to perform
due to a force majeure event shall have as much time as is reasonably sufficient, under
the circumstances, to restore its ability to perform.
Section 26. Non - codification. This Ordinance shall be not be codified in the
26 ) P a g e
City Code of the City of Sanford or the Land Development Code of the City of Sanford.
Section 27. Effective Date.
This Ordinance shall become effective immediately upon its passage and adoption,
provided the Company shall have signified its acceptance of this Franchise Agreement
hereby granted, in writing, by execution of this Ordinance below within thirty (30) days
from the date this Ordinance is duly adopted, the Company's acceptance of said
Franchise Agreement being a condition precedent to the effectiveness of the provisions of
this Ordinance, and provided, further, that the Company has presented satisfactory
evidence of insurance, as set forth in this Ordinance.
Passed and adopted this 15th day of December, 2014.
Attest:
Cynthiaj Porter, City Clerk
Approved as to for a d legal sufficiency.
William L. Colbert, City Kftorney
271 P a g e
City Commission of the City of
Sanford, Florida
Jeff Tripll y r
ACCEPTANCE BY FRANCHISEE
ACCEPTED UNCONDITIONALLY AND IN ALL RESPECTS:
The undersigned represents that s/he has full authority to execute and accept this Franchise
Agreement with the City of Sanford, Florida on behalf of Florida Public Utilities Company.
Florida'Public Utilities Company
B y: �11
NamW
Title: (--)0(2
27 1 P a e