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HomeMy WebLinkAbout2013-112 � 18 - 13 s Io. A2 . NON-EXCLUSIVE FRANCHISE AGREEMENT d T This NON-EXCLUSIVE FRANCHISE AGREEMENT (the "Agreement") is entered into thislatj2.day of June , 2013 between Indian River County, a political subdivision of the State of Florida, ("County"), and Pivotal Utility Holdings, Inc . , a New Jersey corporation d/b/a Florida City Gas ("Franchisee") . (County and Franchisee shall sometimes be collectively referred to as the "Parties" and, individually, as a "Party") . WITNESSETH : WHEREAS, the County desires to grant a non-exclusive franchise to permit the construction, maintenance and operation of Natural Gas facilities within the County; and WHEREAS, the Franchisee is capable of providing such services. NOW, THEREFORE, the Parties agree as follows. SECTION 1 . DEFINITIONS a. "County" shall mean Indian River County, a political subdivision of the State of Florida. b . "Franchise" shall mean this Agreement and the rights granted to Franchisee hereunder. c . "Franchisee" shall mean Pivotal Utility Holdings, Inc . , a New Jersey corporation d/b/a Florida City Gas, and its successors and approved assigns. d. "Gas System Facilities" or "Facilities" shall mean and include, 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 Natural Gas for the purpose of supplying Natural Gas to the meter of the Customer, constructed both prior to and during the term of this Agreement. e . "Customers" shall mean all residences, businesses, governmental entities and industrial establishments located within the County purchasing Natural Gas from Franchisee . h, f "FPSC" shall mean the Florida Public Service Commission. g. "Franchise Fee" shall mean the fees ., described in Section 8 of this Agreement. 1 h. "Gross Revenues" shall have the meaning ascribed to such term by the FPSC . Is "Natural Gas" shall mean natural gas in a gaseous state unmixed or a mixture of natural and artificial gas, whether manufactured, "landfill" or otherwise . j . "Service Area" shall mean the unincorporated area of Indian . River County, and shall not include the territory within any incorporated municipality within the County. k. "Uncollectible Accounts" shall mean any account which has been closed and the deposit applied and is 60 days past due. SECTION 2. FRANCHISE The County hereby grants to the Franchisee, and the Franchisee hereby accepts, the non-exclusive right, privilege and franchise to construct, maintain and operate only Gas System Facilities in, under, upon, over and across the present and future streets, alleys, bridges, easements and other public rights-of--way within the Service Area. The Franchisee shall construct, maintain and operate Gas System Facilities in accordance with established industry practices, and applicable federal, state and local law, including the orders, rules and regulations of the FPSC or any other regulatory body having jurisdiction over the Franchisee and, to the extent permitted by law, the County ' s installation, maintenance and operation standards in respect of Natural Gas . The Franchise term shall be the period of time commencing as of the effective date of this Agreement and continuing in full force and effect until expiring at midnight on June 30, 2038 % provided, however, that the Franchise will automatically renew for successive ten ( 10) year terms until such time as one of the Parties notifies the other, with no less than two (2) years written notice, prior to the expiration of the then-current term, that it does not want the Franchise to automatically renew. If either Party elects not to renew the Franchise, then the Franchise shall expire upon the conclusion of the then current term. The County acknowledges that the rates, fees, and charges that Franchisee charges its customers pursuant to this Agreement are determined by the FPSC . This grant of authority to Franchisee is strictly limited to the provision of Natural Gas service only. It is explicitly recognized that this Franchise does not limit the Franchisee' s ability to operate a liquefied petroleum (commonly referred to as LP gas, bottled gas, or propane) business within the Service Area, similar to any other liquefied petroleum business, nor does it limit the County' s ability to assess a franchise fee upon the liquefied petroleum business within the limits permitted under Florida law. In the event Franchisee 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 2 optic capacity, video services, telecommunication services or any other services other than the provision of services, or providing any other use to existing . or potential Customers, Franchisee shall seek additional- and separate permission from the County for such activities. The Franchisee shall not sell, assign, lease or otherwise alienate and transfer this Franchise without the prior consent of the County, provided that such consent shall be granted or withheld in accordance with Chapter 59= 1380, Section 4(g), of the Laws of Florida. To the extent that applicable law requires a public hearing before such consent may be given, the County shall hold a public hearing in compliance with applicable law. Notwithstanding the foregoing, Franchisee shall have the right, without obtaining the County' s consent, to transfer or assign this Franchise as a result of a total or complete merger or consolidation of Franchisee with a third party, or sale of the Franchisee ' s Natural Gas division assets. Any sale, assignment, lease or other alienation and transfer of this Franchise shall be subject to the conditions that the successor-in-interest to the Facilities and/or the rights under this Franchise shall have agreed in writing to be bound by the terms and conditions of this Agreement. Any dispute relating to or arising out of the provisions of this paragraph shall be subject to the non-binding arbitration provisions set forth below, in Section 19 of this Agreement. Franchisee may, without obtaining the County ' s consent, pledge this Franchise and/or the facilities as security. SECTION 3. USE AND MAINTENANCE OF PUBLIC RIGHTS-OF-WAY Franchisee ' s Gas System Facilities shall be located or relocated and so constructed as not to interfere with, including but not limited to, sanitary sewers, force mains, drainage systems, water pipes, electrical conduits, communications cables or other public utility service facilities, existing at the time of such location, relocation or construction. The Franchisee' s Facilities shall not obstruct or interfere with the public uses of streets, roads, highways or alleys, or create any conditions which are or may become dangerous to the traveling public. Above grade facilities shall be kept to a minimum, and shall be installed as near to the outer boundaries of the public rights-of- way as reasonably possible . The location or relocation of all Facilities shall be made after Franchisee has received all applicable permits, approvals and permissions from the County and such other governmental entities as may be necessary, and the location(s) or relocation(s) shall be subject to the County' s supervision and approval . In consideration for the Franchise Fee paid under this Agreement, the Franchisee will not be assessed any permit fees associated with the installation, construction, repair or maintenance of any Gas System Facilities within the public rights-of--way. In the event that Franchisee is acting in its proprietary function as a retail provider of gas equipment or appliances, Franchisee shall seek the appropriate permits from the County. Franchisee shall cooperate with the County at all times by providing timely and complete information regarding the location of its Facilities. Franchisee and County shall cooperate and coordinate their efforts to make the most efficient and economical use of the public rights-of--way and the Gas System Facilities. 3 If any street, highway or avenue is to be paved by the County, the County shall give written notice to the Franchisee not less than ninety (90) days prior to the commencement of paving. Provided the Franchisee does not already have a main in the street, highway or avenue to provide Natural Gas service to the surrounding houses and other structures, Franchisee shall survey the surrounding houses and other structures to determine whether, in its sole discretion, construction of Gas System Facilities in the street, highway or avenue in question is economically feasible. Where such construction is determined to be economically feasible, the Franchisee shall construct such Gas System Facilities in the street, highway or avenue in question prior to paving by the County. However, in the event the Franchisee believes that such construction may not be completed prior to County' s planned paving schedule, the Parties will attempt to negotiate a revised paving schedule satisfactory to both Parties ; provided, however, that if a delay in paving will cause additional expense to the County, or substantial inconvenience to the residents of the County, the County may proceed with its original paving schedule . The Franchisee shall , at its own expense, replace, . repair and restore without delay any sidewalk, street, alley, pavement, water, sewer or other utility line or appurtenance, soil, landscaping, dirt or other improvement, property or structure of any nature, that may be damaged or displaced by the Franchisee in the conduct of its operations, and shall, at a minimum, restore all property to a condition equivalent to the condition immediately prior to the work and/or changes made by the Franchisee . Franchisee shall take safety precautions to alert the public of work, which may include, but is not limited to, the use of barricades and signs. The Franchisee shall move or remove any Gas System Facilities at no cost to the County, in the event of the widening, repair or reconstruction of any street, road, alley or other right-of--way by the County. The Franchisee and the County shall not be liable for any cost or expense in connection with the location or relocation of its Gas System Facilities at the request of any nongovernmental third party. Such requests shall not be honored until such non-governmental third party has made arrangements to reimburse the Franchisee and/or the County, as the case may be, in a manner satisfactory to such Party(ies). SECTION 4. INSURANCE The Franchisee, at all times during the exercise of its Franchise, shall carry general liability insurance in the amount of Five Million Dollars ($5 ,000,000 . 00) to indemnify any persons sustaining personal injury or property damage as a result of the actions of the Franchisee in the construction, operation or maintenance of its Facilities, The County shall be named as an additional insured. A certificate of insurance (including additional insured status) shall be filed with the County Administrator, or his/her designee. Notwithstanding the foregoing, the Franchisee may meet the insurance minimum using, in part or whole, any combination of self-insurance and captive insurance. In the event Franchisee elects to meet the insurance minimum using, in part or whole, any combination of self-insurance or captive insurance, the Franchisee shall 4 provide the County with documentation attesting to its qualified status. To insure that the amount of liability insurance or self-insurance is consistent with industry standards, as such standards may change during the lengthy term of the Franchise (including renewals or extensions), the Parties agree to meet approximately every five years to evaluate whether the amount of liability insurance or self-insurance provided under this Agreement is consistent with then-existing industry standards. If the Parties determine in good faith that the amount of liability insurance or self-insurance is less than the then- existing industry standard, the amount of such insurance shall be increased to be consistent with such standard. SECTION 5. INSTALLATION OF GAS MAINS ; MAP OF GAS LINES Before the commencement of the construction of any Gas System Facilities, the Franchisee shall provide a drawing to the County establishing the location, lines or any other information reasonably requested by the County in connection with the Gas System Facilities . The laying of such Facilities shall conform to the designated locations, lines or other conditions of the County. After completion of the installation of any Facilities, two copies of complete location maps will be furnished to the County. The Franchisee and the County shall cooperate with respect to the form and format of the location maps. Franchisee agrees that the materials to be used in the construction, operation and maintenance of the Gas System Facilities and the service to be rendered shall be consistent with local industry standards and equivalent to those provided to the Franchisee ' s other franchised communities. The Franchisee shall, at all times, keep an accurate map showing the location of all Gas System Facilities laid and maintained by Franchisee under this Franchise, which shall be accessible for inspection by County officials upon advance written notice during reasonable business hours . SECTION 6. ACCIDENTS OR DAMAGES ; EMERGENCIES The County shall not be liable or responsible in any manner whatsoever for any accident, personal injury, property damage or any claim or damage that may occur in the course of the construction, operation or maintenance of any of its Facilities by Franchisee, and its employees, agents, contractors, and any third parties hired by Franchisee to perform any aspect of Franchisee ' s responsibilities under this Agreement, except for damages specifically caused by or arising out of the negligence, strict liability, intentional torts or criminal acts of the County. Nothing in this Agreement shall be construed to affect in any way the County' s rights, privileges, and immunities under the doctrine of "sovereign immunity" as set forth in Section 768 .28 , Florida Statutes. The County acknowledges that, in the event of an emergency involving the Gas System Facilities, Franchisee ' s obligations to notify various constituents of such circumstances are regulated by the FPSC . 5 i SECTION 7. INDEMNIFICATION Franchisee shall indemnify, defend and hold harmless the County, its commissioners, officers, agents and employees from and against any and all claims, suits, actions, regulatory or administrative proceedings (including reasonable attorney' s fees, including appeals), liabilities and expenses arising during the term of this Franchise and resulting in personal injury, loss of life or damage to property sustained by any person or entity (collectively "Claims") caused by or arising out of Franchisee ' s negligence, intentional torts, strict liability, breach of applicable law or breach of this Agreement in connection with the construction, operation or maintenance of its Gas System Facilities within the Service Area, except for Claims caused by or arising out of the negligence, strict liability, intentional torts, breach of applicable law or breach of this Agreement by the County. Nothing in this Agreement shall be construed to affect in any way the County' s rights, privileges, and immunities under the doctrine of "sovereign immunity" as set forth in Section 768 .28 , Florida Statutes . The provisions of this Section shall survive the termination of this Agreement. SECTION 8. FRANCHISE FEE Within thirty (30) days after the close of the first full billing month (payment for which shall include any prior partial month) following the effective date of this Franchise Agreement, and each month thereafter during the term of this Franchise Agreement, the Franchisee shall pay to the County a Franchise Fee which, when added to the amount of all licenses, excises, fees, charges and other impositions of any kind whatsoever (except ad valorem property taxes and non-ad valorem tax assessments on property) levied or imposed by the County against Franchisee ' s property, business or operations and those of its subsidiaries, is equal to six percent (6%) of the Franchisee' s Gross Revenues, less any adjustments for Uncollectible Accounts, from the sale, transportation, distribution or delivery of Natural Gas to Customers within the Service Area. In the event any Uncollectible Account becomes collectible and/or is collected, an adjustment in amount due the County shall be made in the next monthly payment. The Franchise Fee payment shall be deemed paid on time if post-marked within thirty (30) days of the close of the preceding billing month. SECTION 9. RIGHT OF COUNTY TO INTERVENE The County reserves to itself the right to intervene in any suit, action or proceeding involving any provision of this Agreement. Franchisee agrees to advise the County of any such suits . SECTION 10. ACCOUNTS AND RECORDS : RIGHTS TO AUDIT The Franchisee shall establish and maintain appropriate accounts in accordance with generally accepted accounting methods, and shall maintain records in such detail that Gross Revenues within the limits of the Service Area are consistently declared and identified separately from all other revenues. All records shall be maintained for a 6 minimum of three (3 ) years, or longer if required by applicable regulatory bodies . The Franchisee further agrees that the County, by any duly authorized representative, shall have the right during business hours, and with prior written notice, to inspect and/or audit the books and records of the Franchisee that evidence the Gross Revenues and computations of Franchise Fee payments made by the Franchisee to the County. If the County decides to inspect and/or audit Franchisee ' s books and records, specifically Franchise Fee payments made to the County and Franchise Fee computations, the Franchisee shall permit a County representative to review the pertinent portion of the Franchisee ' s books and records including billing and collection records during normal business hours. The Franchisee and the County shall cooperate with respect to the location of production and format of such books and records, to the end of minimizing the cost for both parties. In the event that an audit of Franchisee ' s books determines that Franchisee made underpayment in any month and that the underpayment exceeded five percent (59/o) of the amount actually due in such month, Franchisee shall pay interest at the rate of twelve percent ( 12%) per annum on the amount underpaid or not paid calculated from the date the amount was due to the date it was finally paid. Both the underpayment and interest shall be paid within thirty (30) days after receipt of demand from the County. SECTION 11 . CHANGES TO THE SERVICE AREA Upon the County ' s becoming aware that the Service Area has changed due to the annexation or incorporation of any property within the Service Area by a municipality or other body, the County shall promptly notify Franchisee of such circumstances and cooperate with Franchisee to determine any necessary adjustments to the Franchise Fee that may be necessary. SECTION 12, FORFEITURE OR REVOCATION OF FRANCHISE The Franchisee' s material failure to comply in any respect with any of the provisions of this Franchise after written notice from County and a reasonable opportunity, no less than one hundred and eighty ( 180) days, to cure shall be grounds for forfeiture of this Franchise pursuant to which the County shall have the right to revoke and cancel all franchise rights granted in this Agreement; provided, however, that Franchisee' 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 Franchisee (collectively, "Force Majeure") shall not constitute grounds for the County' s revocation and cancellation of any rights hereunder. In the event Franchisee in good faith disputes the County' s determination of the Franchisee ' s material non-compliance with the provision(s) of this Franchise specified in the County' s notice, or the County disputes the Franchisee' s assertion that its failure to comply with the provision(s) of this Franchise was or is the result of Force Majeure, the Franchisee and the County shall negotiate in good faith to resolve the dispute prior to submitting the dispute to non-binding arbitration as provided below. If any dispute remains unresolved thirty (30) days after the commencement of negotiations pursuant to this Section, such dispute may, at the election of either Party, be submitted to non-binding arbitration pursuant to the provisions of 7 Section 19 of this Agreement. Nothing in this Section 12 shall be construed as obligating a Party to negotiate or arbitrate a renewal or extension of this Franchise . Notwithstanding any provision to the contrary, Franchisee acknowledges that nothing contained in this Agreement shall constitute a waiver by the County of any rights it may possess at law (including but not limited to the power of eminent domain), or as afforded under Chapter 125 , Florida Statutes. SECTION 13. DESIGNATED REPRESENTATIVES The following individuals are designated to represent the County and Franchisee respectively on all matters concerning the Franchise. All written communication shall be given by mail , either regular or certified with return receipt requested, to the addresses provided, or at such other address as either Party may advise the other in writing : For the County. County Administrator 1801 27th Street Vero Beach, .FL 32960 With a copy to . County Attorney 1801 27th Street Vero Beach, FL 32960 For the Franchisee : General Manager Florida City Gas 955 East 25 Street Hialeah, FL 32955 With a copy to : AGL Resources Inc . Ten Peachtree Place Atlanta, GA 30309 Attention: General Counsel SECTION 14. NO WAIVER Nothing in this Agreement shall be construed as a surrender or waiver by the County of (a) its police powers or the authority to regulate the use of the public streets and/or other public places, provided no regulation contravenes the material terms of this Franchise , and (b) its right to sovereign immunity. SECTION 15, RIGHT TO ENFORCE Each Party shall have all rights and remedies available in law or in equity in the event of a material breach of any obligation set forth in this Agreement by the other Parry. 8 SECTION 16. ATTORNEY FEES Except as otherwise provided, County and Franchisee agree that if litigation or administrative proceedings become necessary to enforce any of the obligations, terms and conditions of this Franchise, the prevailing Party shall be entitled to recover reasonable attorney' s fees and court costs, including fees and costs on appeal, from the. non- prevailing Party. If the subject matter of the dispute was submitted to non-binding arbitration pursuant to Section 19 below, the term "prevailing Party" in the prior sentence shall mean the Party for whom the final judicial or administrative decision is more favorable than the non-binding arbitration decision. SECTION 17. ENTIRETY This writing embodies the entire agreement and understanding between the Parties, and there are no other agreements and understandings, oral or written, with reference to this subject matter that are not merged and superseded. SECTION 18. GOVERNING LAW This Agreement shall be governed by and construed according to the laws of the State of Florida, and venue shall be in Indian River County, Florida. SECTION 19. NON-BINDING ARBITRATION Either Party shall have the right to submit a dispute arising under this Agreement to non-binding arbitration by notifying the other Party of such election in writing within forty-five (45) days after the dispute arises. Within fifteen ( 15 ) days following the giving of such a notice by a Party, each Party shall furnish the other Party with the name, address and telephone number of a person designated by that Party to participate with a person designated by the other Party in selecting an individual to act as the sole arbitrator of the dispute . If a Party fails to designate to the other Parry a person to participate in the selection of the sole arbitrator, or if the persons so designated by the Parties fail, within thirty (30) days following the giving of notice of the dispute by the Party invoking the provisions of this section, to agree on a sole arbitrator of the dispute, either Party shall have the right to apply to the Circuit Court for the 19th Judicial Circuit of the State of Florida for the appointment of such sole arbitrator. The Parties agree that the timing of, and rules governing the conduct of, the non-binding arbitration proceeding shall, unless otherwise agreed, be determined by the sole arbitrator in accordance with applicable law. Unless otherwise agreed, the place of arbitration shall be Indian River County, Florida. In making any award, the arbitrator shall be subject to any provisions of this Franchise which expressly limit remedies or . damages. The Parties shall share equally the compensation and expenses of the arbitrator and the expense of any hearing, and each Party shall bear the compensation and expenses of its own counsel and other representatives (if any) . Each Party shall continue to perform its obligations under this Franchise pending final resolution of any dispute submitted to non-binding arbitration pursuant to this section, unless to do so would be impossible or impracticable under the 9 circumstances . Notwithstanding the pendency of any arbitration proceeding hereunder, a Party, without prejudice to the above procedures, may file a judicial or administrative complaint for statute of limitations or venue reasons, or seek a preliminary injunction or other provisional judicial or administrative relief, if in its sole judgment, such action is necessary to avoid irreparable damage or to preserve the status quo . Despite such action, the Parties will continue to participate in good faith in the non-binding arbitration provided for above. Either Party may file judicial or administrative proceedings to obtain a binding decision, if such Party does not agree with the arbitration decision. In such event, Section 16 above shall apply with respect to an award of attorney' s fees and court costs . SECTION 20. EFFECTIVE DATE This Franchise Agreement shall become effective upon its acceptance by the Franchisee, which acceptance must be evidenced in writing by signature of this document within thirty (30) days of the County ' s passage and adoption hereof. WHEREFORE, the Parties have caused their duly authorized representatives to execute this Agreement on the date first written above. ATTEST : Jeffrey R. S ith, Clerk of Court BOARD OF COUNTY COMMISSIONERS, and C ptfoller INDIAN RIVER COUNTY, FLORIDA •6pVbOyn AN`` •. B s By ' • • '�a DdKty Clerk se E. Flescher, Chairman Approved by BCC : .111ma 1A *05 s, 2 � s 0•°�1 � ''• �'•• '6VOae Approved. Approved as to Form and Legal Sufficiel4ry • es Ask � ° •.. . .. C� J eph A. haird, County Administrator Alan S . P ackwich, Sioweounty Attorney PIVOTAL UTILITY HOLDINGS, INC• (d/b/a FLORIDA CITY GAS) By : Name : A'f Title : r Date : 16115 10