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HomeMy WebLinkAboutDocumentation_Regular_Tab 13_04/09/2009FRANCHISE AGREEMENT BETWEEN THE VILLAGE OF TEQUESTA, FLORIDA (the "Village") AND PEOPLES GAS SYSTEMS, A DIVISION OF TAMPA, ELECTRIC COMPANY ("Company") FOR A GRANT TO USE RIGHTS-OF-WAY AND PUBLIC EASEMENTS WITHIN THE VILLAGE OF TEQUESTA, FLORIDA FOR GAS SERVICE LINES AND APPURTENANCES. SECTION 1: DEFINITIONS For the purposes of this Agreement, the following terms shall have the meaning given herein. A. "Customer" shall mean any Person who is provided Services by the Company, within the corporate limits of the Village. B. "Village" shall mean the Village of Tequesta, Florida, as such may be expanded by annexation in the future or contracted pursuant to applicable law, its successor and assigns. C. "Company" shall mean Peoples Gas System, a division of Tampa Electric Company, a Florida corporation, its successors and assigns. D. "Distribution System" shall mean any and all transmission pipe lines, main pipe lines and service lines, together with all tubes, traps, vents, vaults, manholes, meters, gauges, regulators, valves, conduits, attachments, structures and other appurtenances, as are used or useful in the sale, distribution, transportation or delivery of natural gas Services and as are situated within the corporate limits of the Village. E. "Effective Date" shall mean the date this Franchise becomes Effective as described in Section 24 below. F. "Franchise" or "Franchise Agreement" shall mean this agreement, as passed and adopted by the Village and accepted by the Company, as provided in Section 24 below. G. "FPSC" shall mean the Florida Public Service Commission or any successor agency. H. "Gross Revenues" shall mean all revenues (as defined by the Florida Page 1 Public Service Commission) received by the Company from any Customer from the sale of Gas. I. "Person" shall mean any individual, firm, partnership, estate, corporation, company or other entity, including, but not limited to, any government entity. J. "Natural Gas" of "Gas" shall mean natural gas and/or manufactured gas and/or a mixture of gases which is 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 "bottled gas"). K. "Right-of--way" means any street, road, lane, highway, avenue, boulevard, alley, waterway, bridge, easement, public place or other right-of--way that is owned by the Village. L. "Services" shall mean any services that Company is authorized to provide by the FPSC. The relevant filings with regard to the regulation of the Company by the PSC are incorporated by reference into this Franchise Agreement. SECTION 2: GRANT Subject to all the terms and conditions contained herein, and to all Federal, State and local laws, the Village hereby grants to the Company the non-exclusive right, privilege, and franchise to lay, erect, construct, operate and maintain in, over, across, on or under any and all Rights-of--way, as they now exist or may be hereafter constructed, opened, laid out or extended within the incorporated limits of the Village, or in such territory as may be hereafter added or annexed to, or consolidated with, the Village, a Distribution System subject to the terms and conditions herein contained. The Company understands that space in the Right-of--way is alotted, as among the Company and other franchisees, on a first-come first-serve basis. Page 2 SECTION 3: TERM Except as provided in Section 12, the Franchise hereby granted shall be for a period of thirty (30) years from the effective date of this Agreement. SECTION 4: ASSIGNMENT A. The Franchise hereby granted shall not be leased, assigned or otherwise alienated or disposed of except with the prior express written consent of the Village, which shall not be unreasonably withheld or unduly delayed. No assignment shall be allowed without the assignee assuming the terms of the Franchise Agreement with the Village B. Notwithstanding the foregoing, the Company may, without the consent of the Village, lease, assign or otherwise alienate and transfer this Franchise in connection with the lease or sale of the Distribution System or upon its merger or consolidation with, or transfer to, a corporation engaged in similar business (including an affiliate or subsidiary of the Company). SECTION 5: VILLAGE COVENANT As a further consideration for this Franchise Agreement, the Village covenants and agrees that it will not, during the term of this Franchise Agreement or any extension thereof, engage in the business of distributing or selling Natural Gas within the corporate limits of the Village, as modified, during the term of this Franchise Agreement. SECTION 6: COMPANY'S DISTRIBUTION SYSTEM A. Company may install the Distribution System within the public Rights-of--way and public utility easements in conformity with this Franchise Agreement. 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 Village Officials at all times during reasonable hours. B. The Distribution System shall be erected, placed, or laid in such manner as will, consistent with necessity, least interfere with other public uses of the Rights-of--way, and said Rights-of--way shall not be unnecessarily obstructed, and before, except in an emergency Page 3 situation, the Company makes any excavation or disturbs the surface of any of the Rights-of--way, it shall make application for a permit to the appropriate Village authority. As a condition of any permits so issued, such officials may impose such reasonable conditions and regulations as are required for compliance with this Franchise Agreement and may also impose such reasonable conditions and regulations as are necessary for the purpose of protecting any structures within the public Rights-of--way and/or public easements which are imposed on other service providers and as are consistent with local laws. The City shall issue, or if applicable deny, permits within ten (10) business days of application by the Company. The Village shall use its best efforts to assist Company in obtaining all such local licenses, permits and authorizations in an expeditious and timely manner. C. The Company shall, with due diligence and dispatch, place such Rights-of--way in as good a condition as before such excavation or disturbance was made at the Company's expense, in accordance with applicable Village standards and specifications; provided, however, that should the Company fail, within ten (10) days of its receipt of written notice from the Village, to restore such Rights-of--way, then the Village may undertake such restoration (other than any restoration work on the Distribution System) and charge the reasonable cost thereof, plus ten (10%) percent of the costs for administration management, incurred for such repairs to the Company. D. To the extent consistent with Florida law, the Company hereby agrees to construct, install, operate and maintain the Distribution System provided for in the Franchise in a manner consistent with all the rules and regulations and ordinances which the Village has passed or might pass in the future, in the exercise of its police power, and further agrees to abide by any established policy which the Village or its duly authorized representative has passed, established, or will establish, in the exercise of its police power; provided, however, that the Village shall not pass any ordinance or regulation that results in a material change in the rights or obligations of the Company under the Franchise Agreement. Page 4 E. All such components of the Distribution System of the Company located within the Village shall be installed and maintained in accordance with accepted good practice and in accordance with the orders, rules, and regulations of the Florida Public Service Commission. F. The Village reserves the right to permit to be laid electric conduits, water and gas pipes and lines, cables, sewers, and to do and permit to be done any underground work that may be deemed necessary or proper by the Village in, across, along, or under any Right-of-way. G. Whenever, by reason of establishing a grade or by reason of changes in the grade of any Right-of--way, or by reason of the widening, grading, paving, or otherwise improving present or future Rights-of--way, or in the location or manner of construction of any water pipes, electric conduits, sewers, or other underground structure located within the Rights-of--way, it shall be deemed necessary by the Village to remove, relocate or disconnect any portion of the Distribution System of the Company hereto for such public purpose, such removal, relocation or disconnection shall be made by the Company as ordered in writing by the Village without claim for reimbursement. If the Village shall require the Company to remove, relocate or disconnect any portion of its Distribution System or in any way to alter the placement or location of the Distribution System, to enable any other Person to use said Rights-of--way of the Village, as part of its permitting or approval process, the Village shall require the Person desiring or occasioning such removal, relocation, disconnection or alteration to reimburse the Company for any loss, cost or expense caused by or arising out of such removal, relocation, disconnection or alteration of any portion of the Distribution System. The Company further agrees that it will not intentionally interfere with, change, or injure any water pipes, drains, or sewers of said Village until it has received the required written permits issued by the proper departments of the Village. H. At all times during the term of the Franchise, Company shall furnish an adequate supply of Gas to its Customers in accordance with the orders, rules, and regulations of the Florida Public Service Commission. SECTION 7: FRANCHISE FEE Within thirty (30) days after the close of the first full billing month following the effective date of this Franchise Agreement, and each month thereafter during the term of this Page 5 Franchise Agreement, the Company, its successors or assigns, shall pay to the Village, or its successors, a sum of money which, when added to the amount of all taxes, licenses, permits, or other impositions levied or assessed by the Village and actually paid by Company, is equal to six percent (6%) of the Company's Gross Revenue, less any adjustments for uncollectable accounts, from the sale of Natural Gas to Customers within the corporate limits of the Village (hereinafter referred to as "Franchise Fee"). The Franchise Fee payment shall be deemed paid on time if received within thirty (30) days of the close of the preceding billing month and Company shall file, with the Village's Manager, a statement, signed by an authorized accounting or financial representative of Company, of the Gross Revenues derived in the preceding billing month. Acceptance of any fee payment shall not be deemed a waiver or release of any claims the Village may have for additional sums, nor be construed as an accord that the amount paid is correct, until the expiration of 90 days following receipt by the Village of records the Village requests to review in accordance with Section 9 below. SECTION 8: IDENTIFICATION OF VILLAGE RESIDENTS No less than thirty (30) days prior to the Effective Date, the Village shall deliver to the Company such information (including Village limit streets and block numbers) as is needed by the Company to determine which of its customer are located within the Village limits. The Village shall also provide such information no less than thirty (30) days prior to the effectiveness of any change in said limits, whether by addition, annexation or consolidation, or upon the Company's request. The Company shall be relieved of any obligation to pay franchise fees to the extent the Village has failed to provide information in accordance with this Section. SECTION 9: ACCOUNTS AND RECORDS The Company shall maintain accounting, maintenance, and construction records as prescribed by the FPSC. The Company shall establish and maintain appropriate accounts and records, in such detail that Gross Revenues within the corporate limits of the Village are Page 6 consistently declared separately from all other revenues, and such Records shall be maintained within the State of Florida. Upon request by the Village, or its designated representative, or agent, and execution of a confidentiality agreement reasonably satisfactory to the Company, the Company shall make available said records within thirty (30) days to the Village, or its designated representative or agent for the determination of the accuracy of the Gross Revenues upon which the Company's franchise fee is based. The Company shall maintain its billing records only for the period of time required by the FPSC and any examination conducted after such period shall be confined to the billing records then available. SECTION 10: INSURANCE During the term of this Franchise, the Company shall self insure and/or maintain, or cause to be maintained, in full force and effect, at its sole cost and expense, at all times during the effective period hereof, the following insurance policies or evidence of self-insurance within the corporate limits of the Village, as they currently exist or may exist in the future: A. Workers' compensation insurance within Florida statutory limits and employers' liability insurance with minimum limits of One Hundred Thousand Dollars ($100,000) for each accident. B. Comprehensive general liability insurance with minimum limits of Five Million Dollars ($5,000,000) as the combined single limit for each occurrence of bodily injury, personal injury and property damage. The policy shall provide blanket contractual liability insurance for all written contracts, and shall include coverage for products and completed operations liability, and independent contractor's liability; coverage for property damage from perils of explosion, collapse or damage to underground utilities, commonly known as XCU coverage. C. Automobile liability insurance covering all owned, hired, and non-owned vehicles in use by Company, its employees and agents, with personal protection insurance and property protection insurance to comply with the provisions of the applicable State law, and with minimum limits of Five Million Dollars ($5,000,000) as the combined single limit for each occurrence for bodily injury and property damage. Page 7 Every such insurance policy (except the Worker's Compensation policy) shall name the Village of Tequesta, Florida as an additional insured for the liability arising from this agreement and shall contain a provision whereby every company executing the same shall obligate itself to notify the clerk of the Village, in writing, by registered mail, at least thirty (30) days before any intention not to renew, material alteration, material modification, or cancellation of such policy is to become effective. The Company shall furnish the Village clerk all such certificates of insurance. SECTION 11: INDEMNIFICATION The Company shall and hereby agrees to save, indemnify and hold harmless the Village, its officers, boards, commissions, legal counsel, agents and employees from and against any claims, suits, actions, injuries, demands, judgments, executions, liabilities, debts, damages, penalties, reasonable attorney's fees, expenses and causes of action, arising out of, resulting from, or alleged to rise out of or result from any act or omission by the Company relating to its performance under this Franchise, including the Company's negligent operation of the Distribution System, and including the investigation thereof, and the defense of any action or proceeding brought thereon and any order, judgment or decree which may be entered in any such action or proceeding or as a result thereof; provided, however, that neither the Company nor any of its employees, agents, contractor, licensees, or sublessees shall be liable under this section for any claims, demands, suits, actions, losses, damages, or expenses, including attorney's fees, arising out of the negligence, strict liability, intentional torts, criminal acts, or error of the Village, its officers, agents, or employees. The provisions of this section shall survive the expiration or earlier termination of this Franchise Agreement. Notwithstanding any provision herein to the contrary, the Company's liability under this Agreement shall be limited to the assets and business of Peoples Gas System, a division of Tampa Electric Company, as if Peoples were incorporated separate and apart from Tampa Electric Company. Page 8 SECTION 12: TERMINATION BY VILLAGE Violation by the Company of any of the covenants, terms, and conditions hereof, or default by the Company in observing or carrying into effect any of said covenants, terms and conditions, or if Company files a voluntary petition in bankruptcy or is adjudicated insolvent, shall authorize and empower the Village to declare a termination this Franchise Agreement; provided, however, that before such action by the Village shall become operative and effective, the Company shall have been served by the Village with a written notice setting forth all matters pertinent to such violation or default, and describing the action of the Village with respect thereto, and the Company shall have had a period of sixty (60) days after service of such notice, or, in the event such cure reasonably requires a period of more than sixty (60) days, sixty (60) days to present a plan, reasonably satisfactory to the Village to effect such cure; and provided further that any violation or default resulting from a strike, a lockout, an act of God, or any other cause beyond the control of the Company shall not constitute grounds for termination. SECTION 13: CHANGES IN PROVISIONS HEREOF The parties hereto may from time to time consider it in their best interest to change, modify or extend a term, condition or covenant of this Franchise. Any such change, addition, deletion, extension or modification, which is mutually agreed upon by and between the Village and Company shall be incorporated in written amendments (herein referred to as "Amendments") to this Agreement and be formally approved by the Village Council and the Company. Such Amendments shall not invalidate this Franchise Agreement nor relieve or release either party of any of their respective obligations under this Franchise except as expressly stated in such Amendment. No Amendment to this Franchise shall be effective and binding upon the parties unless it expressly makes reference to this Franchise Agreement. SECTION 14: SEVERABILITY; CHANGE IN LAW A. if any section, part of a section, paragraph, sentence, or clause of this Agreement shall be adjudged by a court of competent jurisdiction to be invalid, such decision shall not affect Page 9 the validity of any other portion hereof, but shall be restricted and limited in its operation and effect to that specific portion hereof involved in the controversy in which such decision shall have been rendered; provided, however, that should elimination of the specific portion of the Franchise Agreement adjudged to be invalid results in significant adverse consequences to a party, then that party may terminate this Franchise Agreement by providing thirty (30) days written notice to the other party. B. Upon the issuance by a court of competent jurisdiction of an order, ruling, or decision, or the enactment or adoption by the Florida Legislature, the Village or any other governmental or regulatory body, of a law, rule, regulation or ordinance, that materially diminishes a municipality's ability to exact Franchise Fees from a utility, or that effectively does away with the ability of a municipality to grant a franchise altogether, then the Company or Village may terminate this Franchise Agreement by providing ninety (90) days written notice to the other party. SECTION 15: REMEDIES NOT EXCLUSIVE The rights and remedies of the Village set forth in this Franchise Agreement shall be in addition to and not in limitation of, any other rights and remedies provided by law or in equity. SECTION 16: GOVERNING LAW This Franchise shall be governed by the laws of the State of Florida and applicable federal law. The Village and Company agree that the venue for any action arising out of the terms of the Franchise lies in Palm Beach County, Florida. SECTION 17: NOTICES Except as otherwise specified herein, all notices, consents, approvals, requests and other communications (herein collectively referred to as "Notices") required or permitted under this Franchise shall be effective only when given in writing and mailed by registered or certified first- class mail, return receipt requested, or overnight delivery, or hand delivery, addressed as follows: Page 10 If to the Villa e If to Com an Village of Tequesta 345 Tequesta Drive Tequesta, Florida 33469 Attention: Villa e Mana er With Co to Trela J. White, Esq. Village Attorney 1111 Hypoluxo Road, Suite 207 Lantana, Florida 33462 All Notices shall be deemed given on the date of certified receipt for certified mail, on the day after overnight delivery, or upon hand delivery. Either party may change its address for the receipt of Notices at any time by giving notice thereof to the other as provided in this Section. Any Notice given by a party hereunder must be signed by an authorized representative of such party. SECTION 18: TERMINOLOGY Unless the context otherwise expressly requires, the words "herein", "hereof' and "hereunder" and other words of similar import refer to this Agreement as a whole and not to any particular Section or other subdivision. SECTION 19: CAPTIONS The headings of the Sections in this Franchise Agreement are for convenience only to facilitate reading and reference to its provisions and shall not be used to construe or interpret the scope or intent of this Agreement or in any way affect the same. SECTION 20: FORCE MAJEURE In the event of forced delay in the performance by either party of obligations under this Franchise due to acts of God or of the public enemy, fires, floods, epidemics, riots, insurrection, Page 11 war, unavoidable casualties, strike, lockout or other conditions or events beyond either party's control, the time for performance of such obligations shall be extended for the period of the forced delay. SECTION 21: WAIVER OF COMPLIANCE No failure by either party to insist upon the strict performance of any covenant, agreement, term or condition of this Franchise, or to exercise any right, term or remedy consequent upon a breach thereof shall constitute a waiver of any such breach or such covenant, agreement, term or condition. No waiver of any breach shall affect or alter this Franchise, but each and every covenant, agreement, term or condition of this Franchise shall continue in full force and effect with respect to any other existing or subsequent breach hereof. SECTION 22: RELATIONSHIP OF THE PARTIES Nothing contained in this Agreement shall be read or interpreted to create anemployer- employee relationship between the Village and the Company. No liability or benefits, such as worker's compensation, pension rights or liabilities, insurance rights or liabilities or other provisions or liabilities, arising out of or related to a contract for hire or employer/employee relationship, shall arise or accrue to either party or either party's agents or employees as a result of the performance of this Franchise, unless expressly stated in this Franchise. SECTION 23: ENTIRE FRANCHISE This Franchise Agreement sets forth all of the terms and conditions under which Company will operate its Franchise. Neither party has made any representations except those expressly set forth herein and no rights or remedies are or shall be acquired by either party by implication or otherwise unless expressly set forth herein. SECTION 24: EFFECTIVE DATE This Franchise Agreement shall be signed by the Mayor and attested by the Village Clerk. The Franchise Agreement shall be approved in accordance with the requirements of Florida law, 12 and shall take effect upon the date when the Franchise Agreement is approved and accepted by both the Village Council and Company, which acceptance must be evidenced in writing within sixty days of the Village's passage and adoption, which date is the day of 2008. PEOPLES GAS SYSTEM, A DIVISION OF VILLAGE OF TEQUESTA TAMPA ELECTRIC COMPANY Pat Watkins, Mayor ATTEST: ATTEST: Lori Mc Williams, Village Clerk APPROVED AS TO FORM AND APPROVED AS TO FORM AND LEGAL SUFFICIENCY: LEGAL SUFFICIENCY: Peoples Gas System, a division of Tampa Trela J. White, Village Attorney Electric Company, a Florida corporation, Attorney Y:\docs\Tequesta\Agcementa\Natural Ges Franchise Agrcemefrt 2008.doc 13