Ordinance 03-2016 FranchisesORDINANCE NO. 03-2016
AN ORDINANCE GRANTING TO FLORIDA PUBLIC
UTILITIES COMPANY, ITS SUCCESSORS AND ASSIGNS,
A NON-EXCLUSIVE FRANCHISE FOR A PERIOD OF 25
YEARS TO SELL, DISTRIBUTE, TRANSPORT, AND
TRANSMIT NATURAL OR MIXED GAS IN THE TOWN
OF PALM BEACH, FLORIDA; PRESCRIBING THE
TERMS AND CONDITIONS UNDER WHICH SAID
FRANCHISE MAY BE EXERCISED; MAKING FINDINGS;
PROVIDING SEVERABILITY; PROVIDING AN
EFFECTIVE DATE UPON FINAL PASSAGE; AND
REPEALING PRIOR ORDINANCES.
WHEREAS, the Town of Palm Beach, Florida owns and/or exercises control over the
Town's Rights -of -Way and other Rights -of -Way (as both are defined herein); and
WHEREAS, the Company (as defined herein) has requested permission from the Town
to erect, construct, operate, and maintain a gas system; to import, transport, sell and distribute
Gas (as defined herein) within the Town; and for these purposes to construct and install facilities
and equipment, and to lay and maintain gas mains, service pipes, and any other appurtenances, as
are necessary, used or useful in the sale, transportation and distribution of Gas within the Town's
Rights -of -Way and other Rights -of -Way; and
WHEREAS, the Town's Rights -of -Way to be used by the Company are public
properties acquired and maintained by the Town at expense to the Town's taxpayers, and the
right to use the Town's Rights -of -Way is a property right without which the Company would be
required to invest capital and incur property acquisition costs; and
WHEREAS, the Town desires to insure that the Town's Rights -of -Way and other
Rights -of -Way used by the Company are used safely and properly, and when such Rights -of -
Way are disturbed, to insure that they are promptly restored to a safe and secure condition to
protect the health, safety, and welfare of the citizens and residents of the Town; and
WHEREAS, state statutes and Town ordinances authorize the Town to grant a franchise
for the purposes set forth herein; and
WHEREAS, the Palm Beach Town Council finds that it is in the public interest of its
citizens to enter into this Franchise Agreement (as defined herein) with the Company.
NOW, THEREFORE, BE IT ENACTED BY THE TOWN COUNCIL OF THE
TOWN OF PALM BEACH, FLORIDA:
1. Definitions. For the purposes of this Franchise Agreement, the following terms,
phrases, words, and their derivatives shall have the meanings given herein. When not
inconsistent with the context, words used in the present tense include the future and
past tenses, words in the plural include the singular, and words in the singular include
the plural.
A. "Affiliate" means, with respect to any particular Person means any other
Person controlling, controlled by or under common control with such
Person. For purposes of this definition, "control" (including the terms
"controlling," "controlled by" and "under common control with") means
the possession, direct or indirect, of the power to direct or cause the
direction of the management and policies of a Person, whether through the
ownership of voting securities, by contract or otherwise, and such
"control" will be conclusively presumed if any Person owns 10% or more
of the voting or other ownership interests, directly or indirectly, of any
other Person.
B. "Business Day" means a day other than a Saturday or Sunday or a day on
which commercial banks located within the Town are closed.
C. "Commission" shall mean the Florida Public Service Commission.
D. "Company" shall mean Florida Public Utilities Company, a Florida
corporation, its successors, and assigns.
E. "Customer" shall mean any Person supplied with Gas service by the
Company within the Town Limits.
F. "Distribution System" shall mean any and all transmission pipe lines,
main pipe lines, and service pipe lines, together with all necessary and
desirable appurtenances, including, but not limited to, all tubes, traps,
vents, vaults, manholes, meters, gauges, regulators, valves, conduits,
attachments, and structures, as are used or useful in the sale, importation,
distribution, transportation, and transmission of Gas within the Town
Limits.
G. "Effective Date" shall mean the date this Franchise Agreement becomes
effective as described in Section 3 below.
H. `Expenses" means 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).
I. "Franchise" or "Franchise Apareement" shall mean this ordinance as
adopted by the Town and accepted by the Company.
J. "Franchise Fee shall mean an amount equal to six percent (6.0%) of the
Company's Gross Revenues.
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K. "Gas" shall mean natural gas and/or manufactured gas and/or a mixture of
natural and manufactured combustible gases that are distributed in pipes
and measured by meter on the Customer's premise. It shall not mean
propane gas or liquefied petroleum gas (commonly referred to as "LP gas"
or "bottled gas"), nor shall it mean hydrogen gas.
L. "Gross Revenues" shall mean all revenues received by the Company from
any Customer other than an Interruptible 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.
M. "Industrial Customer" means a Customer whose principal business activity
is categorized within Standard Industrial Classification codes 12, 13, 14,
20, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, or 39.
N. "Interruptible Customer" means a Customer served under the Company's
Rate Schedule IS, Interruptible Service, or Rate Schedule ITS,
Interruptible Transportation Service, in the event that such Rate
Schedules, which are presently closed to new business, are re -opened to
allow new Customers to take service thereunder.
O. "Party" shall mean the Town of Palm Beach or Florida Public Utilities
Company, which maybe referred to collectively herein as the "Parties" to
this Franchise Agreement.
P. "Person" shall mean any individual, firm, partnership, estate, corporation,
company or other entity, including, but not limited to, any government
entity.
Q. "New Industrial Customer" means any Industrial Customer that (i) was not
a Customer as of the Effective Date or (ii) was a Customer as of the
Effective Date but has since relocated any of its facilities within the Town
Limits.
R. "Rights -of -Way" shall mean the Town's Rights -of -Way and all other
publicly -owned rights-of-way, private roads, and easements, including
utility easements, that are (i) publicly held or dedicated for public use,
including for use in providing utility services, or (ii) presently opened or
to be opened to public use for motor vehicular, bicycle, or pedestrian
movement, or both (i) and (ii) above.
S. "Town" shall mean the Town of Palm Beach, Florida, a municipal
corporation organized and existing under the laws of the State of Florida.
T. "Town Clerk" means the Person appointed, hired or otherwise designated
or charged by the Town to accept, organize, maintain and/or keep records
of the Town.
U. "Town Engineer" means the Person appointed, hired or otherwise
designated or charged by the Town to perform professional and technical
engineering duties for the Town which may include, by example,
performing supervisory and administrative duties in planning and
coordinating the operation of engineering services on behalf of the Town.
V. "Town Limits" shall mean the incorporated limits of the Town, including
any such territory as may be hereafter added or annexed to, or
consolidated with, the Town.
W. "Town Manager" means the Person appointed, hired or otherwise
designated or charged by the Town to implement municipal policy and/or
otherwise serve as the administrator for the Town in connection with day-
to-day functions, including, in the absence of the Town Manager, the
Acting Town Manager.
X. "Town's Own Use" means the consumption of Gas by the Town in the
operation of its governmental facilities.
Y. "Town's Rights-of-Wav" shall mean all rights-of-way, streets, alleys,
highways, waterways, bridges, sidewalks, easements and other ways or
places: (i) in or with respect to which the Town has the legal right to grant
the Company a franchise to use such spaces for the purpose of conducting
its business in the Town; (ii) that are publicly held or dedicated for public
use; and (iii) that are presently opened or to be opened to public use for
vehicular or pedestrian movement; provided, that the "Town's Rights -of -
Way" shall include the space at the surface of and below the right-of-way
places located within the Town Limits.
2. Grant of Authority. The Town hereby grants to the Company the non-exclusive
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right, privilege, and franchise to erect, construct, operate, and maintain in, on or under
any of the Town's Rights -of -Way, as they now exist or may be hereafter constructed,
opened, laid out or extended within the Town Limits, a Distribution System. This
Franchise Agreement shall not be interpreted or construed to allow for the installation
of any above -ground facilities in, on, or under any Town property or in any location
or manner where such installation would unreasonably interfere or create a hazardous
condition with respect to motor vehicular, bicycle, or pedestrian traffic or movement.
In the event that the Town closes, vacates or otherwise abandons any of the Town's
Rights -of -Way, the Town shall provide to the Company an easement for the
Distribution System already located in such rights-of-way in such form and content as
is reasonably acceptable to the Company.
3. Term. This Franchise Agreement shall take effect and be in force from and after the
first day of the month following the date upon which the Company files its
acceptance of this Franchise Agreement with the Town Clerk (the "Effective Date").
Except as provided in Section 4 herein, the Franchise hereby granted by the Town to
the Company shall be twenty-five (25) years from the Effective Date (the "Initial
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Term"). Upon expiration of the Initial Term, this Franchise Agreement shall continue
on the same terms then in effect at the expiration of the Initial Term on a month-to-
month basis, and the Company expressly agrees that the Franchise Fee provided for
herein constitutes fair and just compensation to the Town in return for the Town's
maintaining the Town's Rights -of -Way and malting the Town's Rights -of -Way
available to the Company for the Company's use in selling Gas to Customers free of
competition by the Town.
4. 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 Town may terminate this Franchise Agreement, provided
that the Town shall first have served the Company with a written notice
pursuant to Section 22 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 within such
longer period of time as may be reasonably necessary, to either cure such
violation or default, or to present a plan to the Town to effect such cure
pursuant to such plan within a reasonable period of time after the Town's
approval of the plan. Approval of the plan by the Town shall not be
unreasonably withheld, conditioned or delayed.
B. In the event that the Town 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 Town with a written
notice pursuant to Section 22 herein, setting forth in reasonable detail all
matters pertinent to such material violation or default, and the Town shall
have failed, within sixty (60) days after service of such notice or within
such longer period of time as may be reasonably necessary, to either cure
such violation or default or 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. Either Party, in its sole discretion, may terminate this Franchise
Agreement without cause at any time after the expiration of the Initial
Term.
D. At such time as this Agreement is terminated and the Company ceases the
sale and transporting of Gas to Customers, the Company's obligations to
pay the Franchise Fee shall terminate. (This Section 4(D) shall not be
applicable in the event of the expiration of the Initial Term and the
continuation of this Franchise Agreement on a month-to-month basis
pursuant to Section 3 above.)
5. Non-exclusive Franchise. The right to use and occupy the Town's Rights -of -Way
for the purposes set forth herein shall not be exclusive, and the Town reserves the
right to grant a similar use of the Town's Rights -of -Way to any Person at any time
during the period of this Franchise, so long as such grant shall not interfere with the
Company's rights granted hereunder. This Franchise shall grant the privilege of
carrying on the Company's business in all of the Town or in part of the Town, with
no promise that there will be no competition by entities other than the Town, which
expressly agrees not to compete against Company during the term of this Franchise
pursuant to Section 6 herein. In the event the Town grants a franchise to a competitor
of the Company, the grant shall not interfere with the Company's rights granted
hereunder, including physical location of improvements, except as to matters that
occur as a result of competition.
6. Competition. As further consideration for this Franchise Agreement the Town
hereby agrees that during the term of this Franchise it shall not engage in the business
of selling, importing, distributing, transporting, delivering, or transmitting Gas to any
Person located within the Town Limits, and that it shall not otherwise compete with
the Company within the Town Limits; provided, however, that neither this provision
nor any other provision of this Franchise Agreement shall be construed to prohibit the
Town's legal ability to generate or produce its own Gas for the Town's Own Use, and
the Town's generation or production of Gas for the Town's Own Use shall not be
construed to be in competition with the Company.
7. Assignment. Except as set forth below, this Franchise hereby granted shall not be
sold, leased, assigned or otherwise alienated or disposed of (any such event a
"Transfer") except with the prior written consent (the "Consent") of the Town
Council, which shall not be unreasonably withheld or conditioned or unduly delayed.
In the event that the Town neither grants nor denies the Consent within seventy-five
(75) days after the Company's written request for Consent delivered pursuant to
Section 22 below, then the Consent shall be deemed to have been granted by the
Town to the Company. No Transfer shall be effective until the Person to whom the
Franchise is Transferred files a duly executed instrument reciting the fact of the
Transfer, accepting the terms of the Franchise, and agreeing to perform all the
conditions thereof, in the office of the Town Clerk, whereupon the transferor shall be
released of any further obligations under this Franchise Agreement without the
necessity of any further action by any Person. Notwithstanding the foregoing, the
Company may in its sole and absolute discretion, without any requirement to obtain
the Consent, Transfer this Franchise (i) to an Affiliate to which, and in connection
with which, the assets comprising the Distribution System are transferred or
conveyed, or (ii) in connection with (A) the sale of all or substantially all of the
Company's assets or of the business unit of which this Franchise is a part; (B) the
merger of the Company with or into any other Person or other transfer by operation of
law; or (iii) the pledge or mortgage of this Franchise and the assets comprising the
Distribution System for the purpose of securing payment of monies borrowed by the
Company.
g. Compliance with Applicable Laws.
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A. Subject to Section 10 below, the Company shall abide by all reasonable
rules, regulations, and ordinances which the Town has passed or might
pass in the future, including, without limitation, the most current edition of
the Town's "Standards Applicable to Public Rights -of -Way and
Easements Within the Town of Palm Beach," promulgated by the Town's
Department of Public Works, Engineering Division, and commonly
referred to as the "Town's Right -of -Way Manual" (the "Manual" and all
such reasonable rules, regulations, and ordinances being referred to as the
"Town's Legal Reauirements"). As of the date of this Franchise
Agreement, the current version of the Manual is dated May 1994 as
Revised through December 26, 2012. The Company shall also comply
with the rules and regulations promulgated by the Commission applicable
to the safety of the Company's system and facilities, and with any rules
and regulations promulgated by the Florida Department of Transportation
or the U.S. Department of Transportation, provided that, in the event of
any conflict between the Town's Legal Requirements and those of the
Commission or any other agency, then, unless the Town's Legal
Requirements are expressly preempted by such other agency's rules or
regulations, the Town's Legal Requirements shall control.
B. For purposes of Section 8(A) above, this Franchise shall be construed and
applied such that, with respect to any item of work, project or other matter
for which the Town has issued a permit (to whomever issued if the
Company is to perform or otherwise assist in connection with the same,
each a "Permitted Proiect"), the Company shall be entitled to proceed with
such Permitted Project based on the Town's Legal Requirements,
including the version of the Manual, that were in effect on the date upon
which the permit related to the Permitted Project was issued.
C. All changes to the Town's Legal Requirements shall apply prospectively
and in no event shall the Company be obligated to remediate or otherwise
take any action with respect to any portion of the Distribution System or
Permitted Project that no longer complies with the Town's Legal
Requirements due to a subsequent change in the Town's Legal
Requirements, provided, however, that if the Town makes a determination
at a public hearing duly noticed that the application of the subsequent
change in the Town's Legal Requirements to the previously existing
Distribution System is necessary to protect the health or safety, or both the
health and the safety, of persons, then such changes in the Town's Legal
Requirements shall be applicable to the previously existing Distribution
System, provided further that the Company shall have such time to comply
with such changed Town's Legal Requirements as is reasonable and
appropriate considering all circumstances, including the cost of
compliance and the potential risk of harm to the health or safety of
persons.
9. Deregulation.
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A. In the event the Company or any aspect of the Gas trade, as contemplated
hereunder, is deregulated, the Company shall maintain and operate its
Distribution System and render efficient service in accordance with such
rules and regulations as are, or may be, promulgated by the Town.
B. In the event the Town has not promulgated rules and regulations at the
time of deregulation, then, the Company shall maintain and operate its
Distribution System in compliance with the rules and regulations by which
they were governed prior to deregulation until such time as the Town has
had an opportunity to promulgate rules and regulations or pass an
ordinance governing those items regulated by the Commission, governing
service standards, safety standards, and quality controls. In all cases and
events, the Company shall maintain and operate its Distribution System in
accord with good utility practices, good engineering practices, and with
due care for the public health, safety, and welfare.
10. Changes to Current Town Requirements: Deregulation Ordinances.
A. In no event shall the Company be required to abide by or be subject to any
changes, amendments, or modifications to the Town's Legal
Requirements, or to any new rules, regulations, ordinances, standards,
future exercises of the Town's police power or other Town actions,
including, without limitation, any rules, regulations, or ordinances related
to deregulation of any aspect of the Gas trade, to the extent that any such
changes, amendments, modifications, or new requirements:
i. are preempted by Florida law or by any rules, regulations, or other
requirements of the Commission, the Florida Department of
Transportation, or the U.S. Department of Transportation; or
ii. will have a disproportionate or discriminatory effect on the Company
as compared to other Persons utilizing or accessing the Rights -of -Way
or are not likely to be applied (or are not in fact applied) uniformly
among all Persons utilizing or accessing the Rights -of -Way.
B. Notwithstanding anything to the contrary contained in this Franchise
Agreement, the Company shall be entitled to proceed with any Permitted
Project on the basis of the Town's Legal Requirements in effect on the
date upon which the permit was issued.
C. The Town will provide to the Company a copy of each new edition of the
Manual promptly after any such new edition is approved by the Town
Council for implementation.
11. Distribution Svstem. The Distribution System shall be erected, placed, laid, and
maintained in a manner consistent with the following; provided, however, with
respect to Permitted Projects, the Company's obligation to comply with the Town's
Legal Requirements shall be as in effect as of the date of issuance of the applicable
permit):
A. The Town, through its Town Manager, Town Engineer, or other designee,
shall have the authority, but shall not be required, to supervise all
construction, location, restoration, relocation and installation work.
B. The Company shall install and maintain its Distribution System in a
manner that provides reasonable egress from and ingress to abutting
property.
C. While allowing the functioning of the Distribution System, the
Distribution System shall be located in the Rights -of -Way, including the
Town's Rights -of -Way, in compliance with the Manual and in a manner
that will not unreasonably obstruct, disturb, interfere, or create a
hazardous condition, on a permanent basis, with any motor vehicular,
bicycle, or pedestrian traffic, water flow, water pipes, sewers, drains, catch
basins, pavement, sidewalk, driveways, or any other structures installed or,
any other function of said structures of the delivery of municipal services
by the Town. Any temporary obstructions, disturbances, or interference
with any of the foregoing shall only be allowed in compliance with the
Manual and shall, to the extent practicable and commercially reasonable,
be limited in reasonable degree and extent, and for a reasonable amount of
time, necessary to accomplish the Company's work that necessitated such
obstructions, disturbances, or interference.
D. In the event that drains, sewers, catch basins, water pipes, pavements or
other like improvements, or the function of said improvements are
materially damaged by erecting, placing, laying or maintaining the
Distribution System, the Company shall repair the damage at its sole cost
and expense to a condition that is better than or substantially equal to that
which existed prior to said damage. In this regard, the Town shall give
written notice to the Company pursuant to Section 22 herein, of
deficiencies that need to be cured by the Company. Said notice shall set
forth a reasonable period of time, under the circumstances, in which the
Company shall effect such repair.
E. Notice of construction, location, restoration or relocation of the
Distribution System shall be given to the Town Engineer or his designee
in compliance with the Manual, and the Town will process the Company's
notice or request for authorization to conduct such work as provided for in
the Manual, and as expeditiously as is reasonably practicable under the
circumstances. As soon as practicable, but no more than fifteen (15)
Business Days after completion of the work, the Company shall submit as -
built drawings in such form and format as may be reasonably required by
the Town to the Town Engineer or his designee, following which
submission the Town shall, pursuant to the Manual, review and either
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approve such work or provide notice to the Company of any defects or
violations requiring correction, after which the Company shall make such
corrections consistent with the provisions of the Manual.
F. In the event that, at any time during the period of this Franchise the Town
shall lawfully elect to alter, or change the grade of the Town's Rights -of -
Way, the Company, upon reasonable written notice from the Town, shall
remove, relay, and relocate any portion of the Distribution System as is
necessary at the Company's own cost and expense.
12. Right to Inspect. During the term of this Franchise Agreement, the Town, through
its designated agent, shall have the authority to inspect the Distribution System at a
reasonable time and upon reasonable prior notice to insure compliance with
governing law and the Commission's regulations at the Town's own cost and
expense.
13. Franchise Fee. The Company shall pay the Franchise Fee to the Town quarterly on
January 1, April 1, July 1, and October 1 of each year during the term of this
Franchise unless otherwise agreed. In the event that the Franchise Fee is more than
thirty (30) days delinquent, the delinquent amount shall accrue interest at the highest
rate allowable by law. In the event the Company makes any Franchise Fee payment
in excess of the Franchise Fee due and owing to the Town under this Franchise
Agreement or if the Town is otherwise indebted to the Company, the Company shall
have the right to offset such overpayment and/or indebtedness against future
payments of the Franchise Fee. Notwithstanding anything to the contrary contained
in this Franchise Agreement, in no event shall Company have any obligation to
collect from any New Industrial Customer and remit to the Town any Franchise Fee
in connection with any Gas provided to such New Industrial Customer if such New
Industrial Customer states to the Company in a writing signed by a corporate officer
having the authority to render such a statement, that such New Industrial Customer
will not become a Customer or continue to be a Customer at its facility that has been
relocated within the Town Limits if the Franchise Fee is imposed on Gas provided to
it by the Company.
14. Other Fees and Taxes. Except as otherwise provided for herein, the Company shall
pay to the Town all legally authorized fees, taxes, assessments, and costs levied,
imposed or validly adopted by the Town during the term of this Franchise Agreement,
which shall include, but are not limited to public service taxes, ad valorem taxes
(intangible, personal, and real), other ad valorem and non -ad valorem assessments on
any property, occupational taxes, licensing fees, permitting fees, development review
fees, and inspection fees.
15. Franchise Parity.
A. If, during the term of this Franchise Agreement, the Town, by franchise
agreement, ordinance or otherwise, allows other Persons who sell, import,
distribute, transport, and transmit Gas (the "Alternate Gas Providers") the
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right, privilege or franchise to erect, construct, operate, and maintain in, on
or under any of the Town's Rights -of -Way, as they now exist or may be
hereafter constructed, opened, laid out or extended within the Town
Limits, a Distribution System for the purpose of supplying or delivering
Gas to Persons located within the Town Limits or receiving such Gas from
a Person other than the Company within the Town Limits, and imposes a
franchise fee, rate or either of their equivalent on such Alternate Gas
Provider(s) for any Gas customer or class of customer within the Town
Limits that is less than that imposed with respect to the same Customer or
class of Customers under this Franchise Agreement, the Franchise Fee
percentage rate under this Franchise Agreement shall be automatically
reduced so that the Franchise Fee percentage rate to be paid by any such
affected Customers is no greater than the fee or rate imposed on the
Alternate Gas Provider(s) with respect to such Customers. In the event
that the Town does not impose a franchise fee, rate, or their equivalent, or
any similar charge, on said Alternate Gas Providers, the Company's
obligation to pay the Franchise Fee under this Franchise Agreement with
respect to Gross Revenues derived from the provision of service by the
Company to the comparable class of customers served by such Alternative
Gas Provider thereafter shall be extinguished. This section shall not apply
to the Town, to the extent that the Town generates or produces its own
Gas for the Town's Own Use, and in such capacity, the Town shall not be
an Alternate Gas Provider.
B. If, during the term of this Franchise Agreement, the Company enters into a
franchise agreement for the provision of Gas with any other municipality
located in Florida, the terms of which provide for the payment of franchise
fees by the Company on a percentage basis at a percentage rate greater
than six percent (6.0%), the Franchise Fee percentage rate due and payable
pursuant to this Franchise Agreement shall be automatically increased to
the same percentage rate that the Company has agreed to pay to the other
municipality.
16. Reciprocal Indemnification.
A. The Company shall indemnify and save the Town, 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 Town, 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
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ii. the negligence or willful misconduct of the Company, or any of its
servants, agents, employees, licensees, contractors or invitees in
carrying on its business within the Town Limits.
B. Subject to the provisions and limitations set forth in Section 768.28,
Florida Statutes (2013) or any successor statute, the Town 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 Town of any of the provisions of this Franchise
Agreement; or
ii. the negligence or willful misconduct of the Town, or any of its
servants, agents, employees, licensees, contractors or invitees, in
carrying on the business of the Town.
C. Notwithstanding anything to the contrary herein contained, in no event
shall the Town 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
written notice to the indemnifying Party pursuant to Section 22 herein,
within thirty (30) days after the indemnified Party knew or should have
known of the claim.
E. Nothing herein is intended to act as, nor may any provision of this
Franchise Agreement be construed to create or imply in any way, a waiver
of the Town's rights, privileges, and immunities under the doctrine of
sovereign immunity and/or limits of liability set forth in Section 768:28 of
the Florida Statutes (2013) or any successor statute.
F. The provisions of this Section 16 shall survive this Franchise Agreement
for the shorter of (i) five (5) years or (ii) the period of the statute of
limitations applicable to any claim against which the Company
indemnifies the Town pursuant to this Franchise Agreement.
17. Insurance. The Company shall carry in full force and effect during the entire term of
this Agreement, and any extension period thereof, the following insurance coverages:
A. Comprehensive General Liability Insurance, including products,
contractual, and hazard, with a minimum combined single limit of Ten
Million Dollars ($10,000,000.00). Current insurance certificates shall be
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submitted to the Town by the Company, and each insurance policy shall
name the Town as an additional named insured.
B. Workers Compensation Insurance. Current insurance certificates shall be
submitted to the Town by the Company, and each insurance policy shall
name the Town as an additional named insured.
C. Comprehensive Automobile Liability Insurance as required under the
Florida Statutes for the benefit of the employees of the Company.
Additionally, with respect to all automobile liability insurance policies,
current insurance certificates shall be submitted to the Town by the
Company, and each such insurance policy shall name the Town as an
additional named insured.
18. Records. The Company shall maintain accounts and records in a manner consistent
with Section 368.108 of the Florida Statutes and Chapter 25-7 of the Florida
Administrative Code, and in a manner that permits the Company's Gross Revenues
within the Town Limits to be calculated promptly and accurately. During the term of
this Franchise Agreement, and for a period of six (6) months thereafter, the Town
may, upon not less than 30 days' written 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 the Company's
Gross Revenues within the Town Limits. Such examination of books of account shall
be at the Town's sole expense; provided, however, in the event any such audit reveals
an error or series of errors that in the aggregate for the period so audited (which
period shall not be less than one year) that the Company has underpaid the Franchise
Fees due to the Town in an amount in excess of five percent (5%), then the Company
will reimburse the Town for its reasonable out-of-pocket costs of conducting the
audit. Further, in the event that an audit finds that there are systemic defects or
deficiencies in the Company's accounting processes, Company agrees to take
commercially reasonable actions to correct such processes as soon as reasonably
practicable to the extent necessary to avoid any such defects or deficiencies on a
going -forward basis. To the extent consistent with Florida law, and upon the
Company's request, such examination, audit, and photocopies of such books and
records shall be subject to the Town's execution and delivery of a confidentiality
agreement.
19. Governiniz Law. Venue; TURF TRIAL WAIVER. This Franchise Agreement is
made pursuant to and shall be governed by and construed in accordance with the laws
of the State of Florida, without regard to the conflict of laws principles thereof. The
Parties hereby irrevocably submit to the exclusive jurisdiction of the courts in the
State of Florida (state or federal), with venue in the county in which the Town is
located, over any dispute arising out of this Franchise Agreement, and the Parties
agree that all claims in respect of such dispute or proceeding shall be heard and
determined in such courts. The Parties hereby irrevocably waive, to the fullest extent
permitted by applicable law, any objection that they may have to the venue of such
dispute brought in such court or any defense of inconvenient forum for the
13
maintenance of such dispute. THE PARTIES HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY, AFTER CAREFUL
CONSIDERATION AND AN OPPORTUNITY TO SEEK LEGAL ADVICE,
WAIVE THEIR RIGHT TO 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.
20. Entire ALyreement. This Franchise Agreement, and the schedules and exhibits
hereto, contain the entire understanding and agreement of the Parties relating to the
subject matter of this Franchise Agreement, and the written terms of this Franchise
Agreement supersede all prior and contemporaneous representations, discussions,
negotiations, understandings, and agreements relating to the subject matter of this
Franchise Agreement that are not contained herein.
21. Attorney's Fees and Expenses. In the event either 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 court is
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 be 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.
22. Notices. All notices and other communications under this Franchise shall be in
writing and shall be deemed given when (a) delivered personally to the receiving
Party, (b) sent by facsimile transmission (with electronic confirmation) to the
receiving Party at the facsimile number for that Party set forth below, (c) 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 (d) on
the day delivered by Federal Express or any similar express delivery service for
delivery to that Party at that address, as such delivery date is confirmed by the written
records of such express delivery service. All notices shall be addressed as follows:
If to Company: Florida Public Utilities Company
780 Amelia Island Parkway
Fernandina Beach, FL 32034
Attention: Director, Natural Gas Operations
Facsimile:
with a copy to: Florida Public Utilities Company
14
780 Amelia Island Parkway
Fernandina Beach, FL 32034
Attn: Director of Regulatory Affairs
Facsimile: (561) 366-1525
with a copy to: Balser & Hostetler LLP
200 S. Orange Avenue, Suite 2300
Orlando, Florida 32801
Attention: Jeffrey E. Decker
Facsimile: (407) 841-0168
If to Town: Town of Palm Beach
360 South County Road
Palm Beach, FL 33480
Attention: Town Manager
Facsimile: (561) 838-5411
with a copy to: Jones, Foster, Johnston & Stubbs, P.A.
505 South Flagler Drive, Suite 1100
West Palm Beach, FL 33402
Attention: John C. Randolph, Esquire
Facsimile: (561) 650-0465
Any Party may change its facsimile number or address for notices under this
Franchise at any time by giving the other Party notice of such change delivered in
conformity with this Section 22.
23. Force Maieure. Any prevention, delay or stoppage of work or 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. 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
15
(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.
24. Non -waiver. The failure of any Party to insist in any one or more instances upon the
strict performance of any one or more of the terms or provisions of this Franchise
Agreement shall not be construed as a waiver or relinquishment for the future of any
such term or provision, and the same shall continue in full force and effect. No
waiver or relinquishment shall be deemed to have been made by either Party unless
said waiver or relinquishment is in writing and signed by both Parties.
25. Severabilitv. If any provision of this Franchise Agreement or application to any
Party or circumstances shall be determined by any court of competent jurisdiction to
be invalid or unenforceable to any extent, the remainder of this Franchise Agreement
or the application of such provision to such Party or circumstances, other than as to
which it is so determined invalid or unenforceable, shall not be affected thereby, and
each provision shall be valid and shall be enforced to the fullest extent permitted by
law. In the event that any material provision of this ordinance is thus declared to be
invalid, the Town and the Company will negotiate in good faith to amend this
Agreement so as to restore, to the maximum extent legally permissible, the original
economic bargain embodied in this ordinance.
26. Scrivener's Errors. Sections of this Franchise Agreement may be renumbered or re -
lettered, and the correction of typographical and/or scrivener's errors which do not
affect the intent may be authorized by the Town Manager or his designee, without
need for a public hearing, by filing a corrected or recodifred copy of same with the
Town Clerk.
27. Ordinances Revealed. All provisions of the Town's ordinances in conflict with the
provisions of this Franchise Agreement are not applicable to the Company or to this
Franchise Agreement as of the Effective Date.
PASSED AND ADOPTED in a regular, adjourned session of the Town Council of the
Town of Palm Beach on first reading this 9th day of February, 2016, and for second and final
reading on this 8th day of March, 2016.
aA X
'��
Gai o iglio, Mayo
r
ATTEST:
san A. Owens,own Clerk
Michael . Pucillo, Council President
12-Ij
Richard M. Kle
1411
Council President Pro Tem
Bobbie Lindsay, Town Coury41 Mem
Danielle H. Moore, Town Council Member
2Margar A. Zeidm, Town Council Member
17
UNCONDITIONAL ACCEPTANCE BY THE COMPANY
I, the undersigned official of Florida Public Utilities Company, am authorized to bind the
Company and to unconditionally accept the terms and conditions of the foregoi g Franchise
(Ordinance No. P3-Loi6 P3-Lotwhich are hereby accepted by the Company this day of
� �A " V-, , 2016.
Floridai} blic Utilities Company
By:
Name:
Title:
Subscribed and sworn to before me this day of 14a'a . , 20�,.
Notary Public in and for the State of Florida
My commission expires 36aoAiovuy J"
Cd-totSl / '4' 'Y "`"'-5&"L
Received on behalf of the Town of Palm Beach this
Name: ��ja PeY� �(jY�-1 in����Z Title:
18
day of M a rel) , 20 kn.
e-,Pu4-u —Town 0,1 e, KA,