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HomeMy WebLinkAboutO-14-01 Not Adopted City GasThe ordinance was contingent upon receipt of signature from Florida City Gas within 20 days (by March 4h). Signature was not received; the ordinance is null and void. ORDINANCE 0-14-01 AN ORDINANCE OF THE CITY OF SEBASTIAN, INDIAN RIVER COUNTY FLORIDA; PROVIDING A SHORT TITLE; PROVIDING FINDINGS AND INTENT; GRANTING TO PIVOTAL UTILITY HOLDINGS, INC., DBA FLORIDA CITY GAS, ITS SUCCESSORS AND ASSIGNS, A NON-EXCLUSIVE FRANCHISE FOR A PERIOD OF 25 YEARS TO CONSTRUCT, OPERATE, MAINTAIN, OWN AND TRANSPORT IN THE CITY OF SEBASTIAN, FLORIDA, WORKS FOR THE MANUFACTURE, TRANSMISSION, DISTRIBUTION, TRANSPORTATION, AND SALE OF GAS, INCLUDING NATURAL, MANUFACTURED OR MIXED GAS; PROVIDING CONDITIONS TO THE GRANT OF THE FRANCHISE; PROVIDING FOR CITY REGULATION OF THE GAS SYSTEM; PRESCRIBING PENALTIES FOR THE VIOLATION OF ITS PROVISIONS; PROVIDING SEVERABILITY; PROVIDING AN EFFECTIVE DATE. WHEREAS, the City desires to have a utility gas line system and facilities within the corporate boundaries of the City; and WHEREAS, the City is prepared to enter into a non-exclusive franchise agreement for the construction and operation of a utility gas line system within the City; and WHEREAS, the CITY will receive compensation for the use of its rights -of way to accommodate the installation of such system, as defined in the terms of the franchise agreement; NOW, THEREFORE, BE IT ORDAINED by the City Council of the City of Sebastian, Indian River County, Florida, as follows: SECTION 1. SHORT TITLE. This Ordinance shall be known, and may be cited, as the 'Florida City Gas Franchise Ordinance." SECTION 2. FINDINGS AND INTENT. The City Council makes the following findings and intent: The City of Sebastian, Indian River County, Florida (hereafter "CITY") exercises control over all publicly dedicated rights-of-way, streets, alleys, bridges, easements and other public places located within the limits of the CITY. 2. Pivotal Utility Holdings, Inc., a New Jersey corporation authorized to do business in Florida and doing business as "Florida City Gas" (hereafter "COMPANY") intends on designing, developing, installing, constructing, and expanding a gas utility within, and eventually outside, the city limits of the CITY. 3. The aforesaid rights-of-way to be used by the COMPANY are valuable public properties acquired and maintained by the CITY at great expense to the CITY's taxpayers, and the right to use said rights-of-way is a valuable property right without which the COMPANY would be required to invest substantial capital and property acquisition costs. 4. The CITY desires to insure that the aforesaid rights-of-way used by the COMPANY are promptly restored to a safe and secure condition to protect the health, safety and welfare of the citizens and residents of the CITY. 5. State statutes, CITY ordinances, and the CITY charter authorize the CITY to grant a non- exclusive Franchise for the purposes set forth herein. SECTION 3. AUTHORITY. This franchise shall be governed by the laws of the State of Florida and applicable federal law. SECTION 4. DEFINITIONS. For purposes of this Agreement, the following definitions shall apply: 1. "Gross Operating Revenue" shall mean those revenues collected by the COMPANY and shall include the portion of any Customer deposits that are applied to amounts owed under Customer accounts within the CITY's corporate limits; 2. "Uncollectible Amounts" shall mean any account which has been closed and the deposit applied and such account is 60 days or more past due; and, 3. "Customer" shall mean all residences, business, governmental entities and industrial establishments located within the CITY purchasing gas from COMPANY. SECTION 5. GRANT OF AUTHORITY. There is hereby granted by the CITY to the COMPANY the non-exclusive right, privilege, or franchise to erect, construct, operate and maintain a gas system and facilities, including but not be limited to gas mains, pipes, supply pipes, conduits, ducts, service connections, manholes, regulators, drip pots, control devices, and any other hardware or other appurtenances used as a means of conveying, distributing or selling gas for the purpose of supplying natural, manufactured and other gas to the meter of the Customer, constructed both prior to and during the term of this Agreement (collectively "Gas System Facilities"), and to import, transport, sell and distribute gas, whether natural, manufactured or mixed, within the CITY, and, for these purposes, to establish the necessary facilities and equipment and to lay and maintain gas mains, service pipes and any other appurtenances necessary to the sale, transportation and distribution of gas in and along the rights -of -ways, streets, alleys, bridges, easements and other public way of the CITY. This grant of authority to COMPANY is strictly limited to the provision of manufactured, natural, "landfill" or related gas service only. It is explicitly recognized that this Franchise does not limit the COMPANY's ability to operate a liquefied petroleum (commonly referred to as LP gas, bottled gas, or propane) business within the incorporated limits of the CITY, similar to any other liquefied petroleum business nor does it limit the CITY's ability to assess utility tax upon the liquefied petroleum business within the limits permitted under Florida Statutes. In the event COMPANY desires to use its existing Facilities or to construct new Facilities for the purpose of providing other utility or non-utility services to existing or potential Customers, including but not limited to providing public communications, leased fiber optic capacity, video services, telecommunication services or any other services other than the provision of manufactured, natural, "landfill" or related gas services, or providing any other use to existing or potential Customers, COMPANY shall seek additional and separate permission from the CITY for such activities. COMPANY may, without obtaining the CITY's consent, pledge this Franchise and/or the facilities as security. SECTION 6. NON-EXCLUSIVE GRANT; CITY AGREEMENT NOT TO COMPETE. The right to use and occupy said rights -of -ways, streets, alleys, bridges, easements, and public ways and places for the purposes herein set forth shall not be exclusive, and the CITY reserves the right to grant a similar use of said rights -of -ways, streets, alleys, bridges, easements, or other public places and ways, to any person and/or entity at any time during the period of this franchise. This franchise shall grant the privilege of carrying on the business in all of the CITY or in part of the CITY, with no promise that there will be no competition. In the event the CITY grants a franchise to the competitor of COMPANY, the grant shall not unreasonably interfere with COMPANY's rights granted hereunder, including physical location of improvements, except as to matters that occur as a result of competition. The CITY does hereby agree that during the term of this franchise it shall not compete with COMPANY unless it becomes necessary to do so in emergency circumstances. The CITY shall tender proof of said emergency to the COMPANY upon request. SECTION 7. COMPLIANCE WITH APPLICABLE LAWS AND ORDINANCES. The COMPANY shall, at all times, during the life of this franchise, be subject to all lawful exercises or police power by the CITY, and to such laws, rules and regulations as the CITY shall hereafter, by resolution or ordinance provide including but not limited to, any ordinances pertaining to excavation, reconstruction and development requirements and standards all of which shall not be in conflict or inconsistent with Promulgated Safety Rules and Regulations of the Florida Public Service Commission and Federal and/or Florida Departments of Transportation. SECTION 8. COMPANY LIABILITY — Indemnification. It is expressly understood and agreed, by and between the COMPANY and the CITY, that as additional consideration for the grant of this non-exclusive franchise, the COMPANY shall fully indemnify and hold harmless the CITY its officers, agents and employees from all claims, debts, liabilities, demands, interests, court costs, attorney's fees (including bankruptcy and appellate attorney's fees) to itself and any third person, taxes (including but not limited to any real, personal and sales taxes attempted to be assessed and/or assessed as a result of this Franchise Agreement), whether for bodily injury, death, property damage or otherwise, in any way arising out of the negligent operations of COMPANY or of its gas system in the CITY contemplated by this Agreement and/or COMPANY's related negligent work upon COMPANY's gas system whether directly authorized by this Agreement or not; provided, however, COMPANY shall not be liable for damages caused by or arising out of the negligence, strict liability, intentional torts or criminal acts of the CITY, its officers, agents, employees or contractors. The CITY shall notify the COMPANY's representatives in the CITY within thirty (30) days after the presentation of any claim or demand, either by suit or otherwise, made against the CITY as aforesaid on the part of the COMPANY. Provided further, 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 of Florida Statutes regardless of whether any such obligations are based in tort, contract, statute, strict liability, and negligence, product liability or otherwise. The provisions of this section shall survive this Agreement. SECTION 9. SERVICE STANDARDS. The COMPANY shall maintain and operate its system and render efficient service in accordance with the rules and regulations as are, or may be, set forth by the Florida Public Service Commission and/or other agency and/or entity with jurisdiction to regulate and/or promulgate rules regarding COMPANY's operations. SECTION 10. COMPANY RULES. The COMPANY shall have the authority to promulgate such rules, regulations, terms and conditions governing the conduct of its business as shall be reasonably necessary to enable the COMPANY to exercise its rights and perform its obligations under this Franchise, and to assure an uninterrupted service to each and all of its Customers. Provided, however, that such rules, regulations, terms and conditions shall not be in conflict with the provisions hereof or with the laws of the State of Florida, and shall be subject to approval by the Florida Public Service Commission or applicable federal agencies. Amendments to Tariff will be provided to City on a timely basis. SECTION 11. CONDITIONS ON STREET OCCUPANCY. 1. Use. All pipes, mains, and other natural, artificial or mixed gas equipment and apparatus laid or placed by the COMPANY shall be so located in the streets, alleys and other public way in 3 the CITY as not to obstruct or interfere with any water pipes, sewers, drains, stormwater drainage systems or other structures already installed or hereafter to be installed. The COMPANY shall, when practicable, avoid interfering with the use of any street, alley or other highway where the paving or surface of the streets would be disturbed. 2. Restoration. In case of any disturbance of pavement, sidewalk, driveway, stormwater system or other surfacing that was damaged by the COMPANY, the COMPANY shall, at its own cost and expense and in a manner approved by the CITY Inspector, replace and restore all paving, sidewalk, driveway, stormwater system or surface of any street or alley disturbed, in as good condition as before said work was commenced. 3. Relocation. a. If at any time during the period of this Franchise the CITY shall elect to vacate, alter, or change the grade of, any street, alley or other public way, the COMPANY, upon reasonable notice by the CITY, shall remove, relay, and relocate its mains or service pipes, manholes and other gas fixtures at the COMPANY's expense. The CITY shall not require the relocation of any of COMPANY's facilities installed before or after the effective date hereof in public rights-of-way unless or until first time paving, widening or otherwise changing the configuration of any portion of the public rights of way used by motor vehicles causes such facilities to interfere with aforementioned improvements. The CITY and COMPANY shall meet within ninety (90) days of the execution of this Agreement to discuss the CITY's capital improvement plan and general rights-of-way utilization for paving and drainage projects in an effort to minimize future disruptions. The CITY shall transmit a copy of its adopted annual capital improvement plan on or about November 1 of each fiscal year. b. If any time during the period of this Franchise a request for relocation of mains or service pipes, manholes and other gas fixtures shall be made by a third party, the CITY Public Works Department shall have the responsibility for making advisory recommendations to the CITY Council regarding such request for relocation. The third party petitioner shall assume and advance all costs of relocating main and service utility lines, including legal costs resulting from condemnation of property necessary to relocate. SECTION 12. RIGHT OF WAY NOT WARRANTED. The CITY does not warrant any right, title or interest of any street, alley, stormwater system, or other public way in existence, or hereafter acquired, used by the COMPANY or as may be used by the COMPANY in the future. In the event that the CITY closes, vacates or otherwise abandons any street, alley, stormwater system or other public way, CITY shall provide to COMPANY a reasonable easement for COMPANY - owned facilities installed within said street, alley or other public way at no additional expense to COMPANY. SECTION 13. ANNEXATION OR CONTRACTION. COMPANY agrees that the geographical limits of the franchise area are subject to expansion or reduction by annexation and contraction and that COMPANY may or may not have vested rights in annexed or contracted areas, as may be governed by applicable law. Upon the annexation of any territory by the CITY, the right, privilege and permit hereby granted shall extend to the territory so annexed, when permitted by law, and all facilities owned maintained or operated by said COMPANY, located within the territory so annexed upon any of the streets, alleys, stormwater systems or public ways situated in such annexed territory, shall thereafter be subject to all of the terms herein as permitted by law. SECTION 14. CITY RIGHTS IN FRANCHISE. Municipal Rules. The right is hereby reserved to the CITY to adopt, in addition to the provisions herein contained and existing applicable ordinances, such additional regulations as it shall find necessary in the exercise of the police power, provided that such regulations, 4 by Ordinance or otherwise, shall not be in conflict with the rights herein granted, and shall not be in conflict with the laws of the State of Florida or federal regulation. 2. Supervision and Inspection. The CITY shall have the right to approve all construction or installation work performed subject to the provisions of this Ordinance and to make such inspections as it shall find necessary to insure compliance with governing ordinances. 3. Procedure After Termination of Revocation. Upon the revocation of this Franchise by the CITY for failure to comply with the terms thereof, or at the end of the term of this Franchise, the CITY shall have the right to determine whether the COMPANY shall continue to operate and maintain its distributing system pending the decision of the CITY as to the future maintenance and operation of the distribution system. SECTION 15. PAYMENT TO THE CITY. Franchise Fee. In consideration for the granting of this Franchise, the COMPANY, its successors and assigns, shall pay to the CITY, and its successors, an amount which, when added to all taxes, permits paid to the CITY, will equal six percent (6%) of COMPANY's Gross Operating Revenue, less any adjustments for Uncollectible Amounts, taken in and received by it for providing all aspects of natural gas service to its Customers within the corporate limits of the CITY, as now or hereafter constituted. The COMPANY shall pay the franchise fee provided by this section on a monthly basis during the term of this franchise. Any payments not made by the COMPANY within thirty (30) days after the date said payment is due, shall thereafter be payable with interest at the rate of eighteen percent (18%) per annum. Except as otherwise provided for within this Ordinance, the COMPANY shall, at all times, continue to be subject to, and shall pay to the CITY, all legally authorized public service taxes, ad valorem taxes (intangible, personal, real), occupational taxes, and any and all other valid tax, levied or imposed by the CITY. Such charges and fees shall include but not be limited to licensing, permit fees, development review and inspection fees and all other such fees including fees, charges, taxes and/or assessments validly adopted and/or imposed during the term of this Franchise Agreement. 2. Electronic Pavment. The monthly Franchise Fee payments shall be made by wire transfer or other electronic means. SECTION 16. RATES. Rates charged by the COMPANY for service hereunder shall be fair and reasonable and designed to meet all necessary costs of the service, including a fair rate of return on the net valuation of its properties devoted thereto, under efficient and economical management. The COMPANY agrees that it shall be subject to all authority, now or hereafter possessed by the CITY, or any other regulatory body having competent jurisdiction, to fix just, reasonable and compensatory gas rates. 1. Savinqs to Customers. If during the term of this franchise the COMPANY receives refunds, or if the cost to the COMPANY of the natural, artificial or mixed gas sold under this Franchise is reduced, by order of any regulatory body having competent jurisdiction, the COMPANY shall pass on its consumers such refunds or any savings resulting therefrom. SECTION 17. RECORDS AND REPORTS. The CITY shall have access, at all reasonable business hours, to all of the COMPANY's plans, contracts, engineering, accounting, finance, statistical, Customer and service records relating to performance under this Ordinance. As well, the CITY shall have access to all records on file with the Florida Public Service Commission. The COMPANY does hereby acknowledge they have a statutory right to maintain confidentiality with regard to certain items filed with the Florida Public Service Commission. The COMPANY does hereby permit the disclosure to CITY of any and all records and reports filed with the Florida Public Service Commission, which may be relevant to this ordinance, as may be requested by the CITY. The CITY shall maintain confidentiality of said records and reports provided the CITY is legally permitted to do so. In accordance herewith, the COMPANY does hereby authorize the Florida Public Service Commission to furnish full and complete records and reports to the CITY, as may, from time to time, be requested by the CITY. As well, COMPANY shall provide directly to the CITY an annual summary report showing gross revenues received by the COMPANY from its operations within the CITY during the preceding fiscal year and such other information as the CITY shall request with respect to properties, quality control, and expenses related to the COMPANY's service with the CITY. The following records and reports shall be in the local office of the COMPANY: Comnanv Rules and Regulations. Copies of such rules, regulations, terms and conditions adopted by it for the conduct of its business. 2. Gross Revenue. An annual summary report showing gross revenues received by the COMPANY from its operations within the CITY during the preceding year and such other information as the CITY shall request with respect to properties and expenses related to the COMPANY's service within the CITY. 3. As -Built Plans. Copies of all As -Built Plans showing the type and location of all of the COMPANY's main lines, service pipes, manholes and other gas fixtures shall be furnished to the CITY Manager and shall be kept current at all times. Current shall be defined as Quarterly. The CITY may audit the financial records of the COMPANY for the purpose of determining that proper collection of payment of the franchise fees is being made by COMPANY in accordance with this Ordinance at the CITY's initial expense. COMPANY shall cooperate with and make available those records necessary for CITY to perform the audit. If the audit demonstrates that payment or collection of franchise fees is more than 5% less than the monthly amount that should have been paid or collected, the COMPANY shall, in addition to paying the fees that should have been paid or collected, pay the cost of the audit. SECTION 18. EFFECTIVE DATE; TERM OF FRANCHISE. The franchise and rights herein granted shall take effect and be in force from and after the first day of the month following the final passage hereof, as required by law, and upon filing of the acceptance by the COMPANY with the CITY Clerk and shall continue in force and effect for a term of twenty-five (25) years after the effective date of this franchise. This ordinance shall take effect upon passage provided that within twenty (20) days of said date, the COMPANY shall signify its unqualified acceptance of this franchise, in writing. Provided, that if the acceptance is not filed within twenty (20) days, the provisions of this franchise shall be null and void and COMPANY's franchise rights shall be terminated. SECTION 19. PENALTIES. Provided that any violation by the COMPANY, its vendee, lessee or successor of the provisions of this franchise, or any portions thereof, or the failure to promptly perform any of the provisions thereof, shall be cause for the forfeiture of this franchise and all rights hereunder by the CITY after written notice to the COMPANY and continuation of such violation, failure or default for a period of one hundred eighty (180) days unless an extension is granted by the CITY. Provided however, that COMPANY's failure to comply with any provision of this Franchise as the result of a strike, lockout, or any other cause beyond the reasonable control of the COMPANY (collectively "Force Majeure") shall not constitute grounds for CITY's revocation and cancellation of any rights hereunder. In the event COMPANY in good faith disputes the CITY's determination of the COMPANY's non-compliance with the provision(s) of this Franchise specified in the CITY's notice, or the City disputes the COMPANY's assertion that its failure to comply with the provision(s) of this Franchise was, or is, the result of Force Majeure, the COMPANY and the CITY shall negotiate in good faith to resolve the dispute. If any dispute [: remains unresolved thirty (30) days after the commencement of negotiations pursuant to this Section, such dispute shall be settled by the Courts pursuant to the provisions of Section 20 of this Agreement. Notwithstanding any provisions to the contrary, COMPANY, acknowledges that nothing contained in this Agreement shall constitute a waiver by the CITY of any rights it may possess at law, including but not limited to the power of eminent domain, or as afforded under Chapter 180, Florida Statutes. SECTION 20. LAW GOVERNING AND VENUE. This ordinance, and the Franchise Agreement granted hereunder, shall be interpreted under and governed by Florida law. Venue for any actions arising out of this Franchise Agreement shall be in State Courts in and for Indian River County, Florida. SECTION 21. ENTIRE AGREEMENT. This Franchise Agreement and any additional or supplementary exhibits or schedules incorporated herein by specific reference contain all the terms and conditions agreed upon by the parties hereto, and no other agreement, oral or otherwise, regarding the subject matter of this Agreement or any part thereof shall have any validity or bind any of the parties thereto. SECTION 22. NOTICES. All notices by either the CITY or COMPANY to the other shall be made by depositing such notice in the certified mail of the United States of America, return receipt requested, and such notice shall be deemed to have been served on the date of such depositing in the certified mail unless otherwise provided except in exigent circumstances in which case hand delivery will be acceptable. All notices shall be addressed as follows: If to COMPANY: Pivotal Utility Holdings, Inc. d/b/a Florida City Gas 955 East 25th Street Hialeah, FL 33013 Attention: Regional Director With a copy to: AGL Resources Inc. Ten Peachtree Place Atlanta, GA 30309 Attention: General Counsel If to CITY: City of Sebastian 1225 Main Street Sebastian, FL 32958 Attention: City Manager With a copy to: City Attorney — City of Sebastian Notice shall be provided to the above-named addresses unless directed otherwise in writing by the CITY or the COMPANY. SECTION 23. NON -WAIVER PROVISION. 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 ordinance shall not be construed as a waiver or relinquishment for 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 the parties. SECTION 24. SEVERABILITY. If any section, subsection, paragraph, sentence, clause, or phrase of this Ordinance shall for any reason be held to be unconstitutional, inoperative, or void by a court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance, which shall continue in full force and effect; it shall be construed that it is the legislative intent to adopt this Ordinance without the unconstitutional, inoperative or void section, subsection, paragraph, sentence, clause or phrase. Furthermore, if any provision of this Ordinance is held unconstitutional, inoperative, or void as applied to any person or property, such decision shall not apply to any other person or property. SECTION 25. EFFECTIVE DATE. This ordinance shall take effect immediately upon its passage. The foregoing Ordinance was moved for adoption by Council Member Hill . The motion was seconded by Council Member Adams and, upon being put to a vote, the vote was as follows: Mayor Bob McPartlan aye Vice -Mayor Jim Hill aye Council Member Jerome Adams aye Council Member Andrea Coy aye Council Member Richard Gillmor aye The Mayor thereupon declared this Ordinance fully passed and adopted this 12th day of February 12014. CITY OF SEBASTIAN, FLORIDA Bob McPartlan, Mayor ATTEST: Sally A. Maio MC City Clerk (SEAL) Approved as to Form and Legality for Reliance by the City of Sebastian Only: U Robert A. Ginsburg, City Attorney UNCONDITIONAL ACCEPTANCE BY COMPANY I, the undersigned official of Pivotal Utility Holdings, Inc., d/b/a Florida City Gas, am authorized to bind COMPANY and to unconditionally accept the terms and conditions of the foregoing Franchise (Ordinance No. 0-14-01), which are hereby accepted by COMPANY this day of 12014. PIVOTAL UTILITY HOLDINGS, INC. d/b/a Florida City Gas By: Name: Title: Subscribed and sworn to before me this day of 12014. Notary Public in and for the Site of Florida My Council expires 17