Agenda 02/25/2014 Item #11C2/25/2014 11.C.
EXECUTIVE SUMMARY
Recommendation to authorize the County Attorney to advertise an ordinance for a future public
hearing pertaining to Natural Gas Franchise requirements.
OBJECTIVE: To advertise the attached ordinance pertaining to Natural Gas Franchises for
future consideration by the Board.
CONSIDERATION: Florida counties have the authority to establish franchise agreement
requirements and charge franchise fees to the various utilities that operate within their
unincorporated area. Franchise agreements ensure that counties will not compete against the
utility service providers and the fees collected from the utilities serve as a payment for the use of
the counties numerous rights -of -way and easements. These various utilities require access to
property in order to place transmission and distribution systems that serve their customers.
Collier County does not currently require or have any franchise agreements in place for any
electric or natural gas utility provider.
On November 12, 2013, at the regular meeting of the Board, the Board directed the County
Manager, or his designee, and the County Attorney to review the potential for natural gas utility
opportunities in the Immokalee area.
As a result of this direction, staff has met/had discussions with Burt Saunders, legal counsel for
the interested natural gas utility provider, Immokalee Natural Gas (ING), and John Knight and
Doug Cates, ING owners, to discuss their request to acquire an exclusive natural gas utility
franchise in Northeast Collier County, to include Immokalee, Ave Maria, and the surrounding
agricultural areas. There is currently one known natural gas utility provider (TECO, aka.
Peoples Gas) that provides natural gas service in Collier County, from Northern Collier, south to
the Fiddlers Creek Community. There are no known natural gas utility providers within Eastern
Collier County.
At the February 11, 2014 Board meeting, Item I 1 B, the Board directed the County Manager and
the County Attorney to bring back a Natural Gas Franchise Ordinance for Board consideration
that would require natural gas utility service providers to enter into a franchise agreement with
the County, at the sole discretion of the Board, and to adhere to all requirements identified by the
Florida Public Service Commission, as defined within the Florida Administrative Code.
Requirements of a County Natural Gas Franchise include, but are not limited to terms of
franchise, right -of -way provisions, no competition by the County, gas main installation
standards, emergency response, rates, service quality, insurance, etc.
The proposed Ordinance provides the legal framework for the County to accept applications and
enter into Natural Gas Franchises. A sample Franchise Agreement is also included as an
attachment to this Executive Summary.
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FISCAL IMPACT: The fiscal impact of Natural Gas Franchise Agreements will be determined
case -by -case based on the service area and number of potential customers to be served, natural
gas utility revenues, potential franchise fees and amount and cost of County oversight required.
With respect to potential franchise fees, any such fees would be reviewed and approved by the
Board as part of the Franchise Agreement and is a pass through cost to the customer being served
by the utility.
GROWTH MANAGEMENT IMPACT: There is no growth management impacts associated
with this item.
LEGAL CONSIDERATIONS: The Ordinance has been reviewed by the County Attorney, and
is approved as to form and legality. Should the Board enact this proposed Ordinance, I would
expect the sample Franchise Agreement will be utilized in the first negotiation. My expectation
is that the first Franchise Agreement brought to the Board for approval will be similar to this
sample document. This item requires majority vote for approval. -JAK
RECOMMENDATION: That the Board of Commissioners authorizes the County Attorney to
advertise an ordinance pertaining to Natural Gas Franchises and setting forth the guidelines and
requirements to apply for a Natural Gas Franchise for future consideration.
Prepared By: Jamie French, Director, Operations and Regulatory Management
Growth Management Division, Planning and Regulation
Attachments: 1) Proposed Ordinance
2) Sample Franchise Agreement
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COLLIER COUNTY
Board of County Commissioners
Item Number: 11.11.C.
2/25/2014 11.C.
Item Summary: Recommendation to authorize the County Attorney to advertise an
ordinance for a future public hearing pertaining to Natural Gas Franchise requirements. (Jamie
French, Operations & Regulatory Management Director)
Meeting Date: 2/25/2014
Prepared By
Name: PuigJudy
Title: Operations Analyst, Community Development & Environmental Services
2/14/2014 3:16:13 PM
Submitted by
Title: Director - Operations Support, Operations & Regulatory Management
Name: FrenchJames
2/14/2014 3:16:14 PM
Approved By
Name: PuigJudy
Title: Operations Analyst, Community Development & Environmental Services
Date: 2/14/2014 3:37:11 PM
Name: MarcellaJeanne
Title: Executive Secretary, Transportation Planning
Date: 2/14/2014 3:53:25 PM
Name: KlatzkowJeff
Title: County Attorney,
Date: 2/18/2014 8:14:44 AM
Name: FinnEd
Title: Management/Budget Analyst, Senior, Transportation Engineering & Construction Management
Date: 2/18/2014 9:11:17 AM
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2/25/2014 11.C.
Name: OchsLeo
Title: County Manager, County Managers Office
Date: 2/19/2014 11:08:26 AM
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2/25/2014 11.C.
ORDINANCE NO. 2014-
AN ORDINANCE OF COLLIER COUNTY, FLORIDA, TO BE KNOWN
AS THE NATURAL GAS FRANCHISE ORDINANCE; PROVIDING FOR
DEFINITIONS; PROVIDING FOR APPLICABILITY; PROVIDING FOR
NATURAL GAS FRANCHISE REQUIREMENTS TO CONSTRUCT,
OPERATE AND MAINTAIN NATURAL GAS FACILITIES OVER,
UNDER OR UPON THE PUBLIC RIGHTS -OF -WAY OF COLLIER
COUNTY; CREATING A NATURAL GAS FRANCHISE AGREEMENT;
MAKING FINDINGS AND PROVIDING FOR SEVERABILITY,
CODIFICATION AND AN EFFECTIVE DATE.
WHEREAS, the County is a political subdivision of the State of Florida, with all powers
necessary to carry on county government, as set forth generally in Article VIII, section 1 of the
Florida Constitution and Chapter 125 of the Florida Statutes, and specifically in Chapter 59 -1380,
Laws of Florida, and has all requisite authority to enact and enforce this Ordinance; and
WHEREAS, the County finds that the development of a natural gas system in the
unincorporated County has the potential of having great benefit and impact upon the residents of
the County and further finds that the public health, safety and welfare can best be served by
exercising regulatory powers which are vested in the County with respect to such system; and
WHEREAS, the County finds it in the public interest to retain control over the use of public
rights -of -way by providers of natural gas to promote planned and efficient use of limited right -of-
way space, to protect the public investment in right -of -way property, to prevent interference with
the public's use of such rights -of -way, and to promote aesthetic considerations important to the
residents of Collier County, and
WHEREAS, these rights -of -way are valuable public properties acquired and maintained by
the County at great expense to the County's taxpayers, and the right to use the rights -of -way is a
valuable property right without which a natural gas utility company would be required to invest
substantial capital in property and acquisition costs; and
WHEREAS, the County desires to ensure that the County rights -of -way will be used and
promptly restored to a safe and secure condition in such manner as to always protect the health,
safety and welfare of the citizens and residents of the County; and
WHEREAS, the requirement that natural gas utilities obtain a franchise and pay a
reasonable, negotiated for franchise fee which is related to the value of the benefits received by
natural gas utilities and the expenses incurred by the County in, among other things, maintaining
and regulating the use of the public rights -of -way, is fair and equitable to both parties and is duly
authorized by the laws of the State of Florida.
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NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY
COMMISSIONERS OF COLLIER COUNTY, FLORIDA:
SECTION ONE: DEFINITIONS
The following words, terms and phrases, when used in this article, shall have the
meanings ascribed to them in this section, except where the context clearly indicates a different
meaning.
"Franchise Agreement" shall mean a non- exclusive privilege granted by the Board to authorize a
Natural Gas Utility to provide utility service within the boundaries of Collier County pursuant to
this Ordinance.
"Natural Gas" shall mean either natural gas in a gaseous state unmixed or a mixture of natural
and artificial gas.
"Natural Gas Facilities" shall mean works and structures necessary for the supply and
distribution of natural gas for domestic, commercial or industrial use, and shall include, but not
be limited to, distribution mains, transmission mains, pipelines, meters, plants, equipment,
machinery and other property necessary for the supply and distribution of natural gas.
SECTION TWO: APPLICABILITY
The provisions within this article shall be applicable to and effective in all existing or
future Natural Gas Utility providers. This article is intended, and shall be construed, as a direct
regulatory measure uniform in application throughout all unincorporated areas of the County.
Nothing in this Ordinance shall affect any ordinance of any municipality.
SECTION THREE: COLLIER COUNTY NATURAL GAS FRANCHISE AGREEMENT
Except as provided for below, following the effective date of this Ordinance, it shall be
unlawful for any person or entity owning or operating natural gas facilities to utilize the present
and future roads, streets, alleys, bridges, easements, rights -of -way and other public places
(collectively, "public rights -of- way ") of the County to sell, transport, deliver or distribute natural
gas to users in the County, unless authorized to do so by a franchise granted by the County. Any
agreement granting a natural gas franchise shall be entered into only after a duly noticed public
hearing. The agreement shall address, at a minimum, the term of the franchise, the franchise
service territory, and the amount of any franchise fee, and shall require that the franchisee (a)
prevent the creation of obstructions or conditions dangerous to the traveling public, (b) repair
any damage to the public rights -of -way resulting from the exercise of franchise rights, (c) hold
the County, and its commissioners, officers, employees and agents, harmless from any claims or
damages resulting from the exercise of franchise rights, and (d) remove or relocate any pipelines
or other components of the natural gas facilities at no cost to the County in the event of the
widening, repair or reconstruction of the public rights -of -way, in addition to such other
provisions which are determined to be reasonably necessary for the protection of the County and
the public.
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Any person or entity presently owning or operating natural gas facilities which utilizes
any Collier County public right -of -way shall have until October 1, 2014 to come into compliance
with this Ordinance.
SECTION FOUR: INCLUSION OF LAWS AND ORDINANCES
The provisions of this Ordinance shall become and be made part of the Code of Laws and
Ordinance of Collier County, Florida. The sections of the Ordinance may be numbered or re-
lettered to accomplish such, and the word "ordinance" may be changed to "section ", "article ", or
any other appropriate word.
SECTION FIVE: CONFLICT AND SEVERABILITY
In the event this Ordinance conflicts with any other Ordinance of Collier County or other
applicable law, the more restrictive shall apply. If any phrase or portion of this Ordinance is held
to be invalid or unconstitutional by any court or competent jurisdiction, such portion shall be
deemed separate, distinct and independent provision and such holding shall not affect the validity
of the remaining portion.
SECTION SIX: EFFECTIVE DATE
This Ordinance shall become effective upon filing with the Department of State of the
State of Florida.
PASSED AND DULY ADOPTED by the Board of County Commissioners of Collier
County, Florida, this day of , 2014.
ATTEST BOARD OF COUNTY COMMISSIONERS
DWIGHT E. BROCK, CLERK COLLIER COUNTY, FLORIDA
C
, Deputy Clerk
Approved as to form and legality:
Jeffrey A. Klatzkow, County Attorney
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TOM HENNING, CHAIRMAN
2/25/2014 11.C.
NATURAL GAS FRANCHISE AGREEMENT
THIS FRANCHISE AGREEMENT is entered into as of this _ day of ,
2013, by and between Collier County, a political subdivision of the State of Florida (the "County "),
and , a state corporation, d/b /a
WHEREAS, the County is a political subdivision of the State of Florida, with all powers
necessary to carry on county government, as set forth generally, in Article VIII, section 1 of the
Florida Constitution and Chapter 125 of the Florida Statutes, and specifically in Chapter 59 -1380,
Laws of Florida, and has all requisite authority to enter.-,into and implement this franchise
agreement, as franchisor; and
WHEREAS, is a state
and is in the business of supplying
residential, commercial and industrial custoi
implement this franchise agreement, as francl
ition doing
has all requisite
in the state of Florida as
s and related services to
athority to enter into and
WHEREAS, the County finds that the development of a natural gas system in the
unincorporated County has the potential of having great benefit and impact upon the residents of
the County and further finds that the public health, safety and welfare can best be served by
exercising regulatory powers which are vested in the County with respect to such system; and
WHEREAS, the County, finds it in the public interest to retain control over the use of
public rights- of- way'by providers of natural gas to promote planned and efficient use of limited
right -of -way space, to protect the public investment in right -of -way property, to prevent interference
with the public's use of such rights -of- -way, and to promote aesthetic considerations important to the
residents of Collier County,
WHEREAS, the' aforesaid rights -of- -way are valuable public properties acquired and
maintained by the County at great expense to the County's taxpayers, and the right to use the rights -
of -way is a valuable property right without which a natural gas utility company would be required
to invest substantial capital in property and acquisition costs; and
WHEREAS, the County desires to ensure that the County rights -of -way will be used and
promptly restored to a safe and secure condition in such manner as to always protect the health,
safety and welfare of the citizens and residents of the County; and
WHEREAS, this franchise agreement has been duly authorized and approved by all
actions and performance of preconditions and has been duly executed and delivered, and constitutes
a valid and binding agreement of each party, enforceable in accordance with its terms,
NOW, THEREFORE, in consideration of the mutual covenants set forth herein, and
other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged,
the parties hereby agree, as follows:
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Section 1. Definitions.
"Natural Gas" shall mean either natural gas in a gaseous state unmixed or a mixture of natural gas
and artificial gas.
"Gas System Facilities" or "Facilities" shall mean the individual and collective works and structures
necessary for the supply and distribution of natural gas for residential, commercial or industrial use,
and shall include, but not be limited to, distribution mains, transmission mains, pipelines, meters,
plants, equipment, machinery and other property necessary for the supply and distribution of natural
gas.
"Territory" shall mean the areas within unincorporated Collier County, Florida.
Section 2. Grant of Franchise.
The County hereby grants to the non - exclusive right, privilege and franchise to construct,
reconstruct, maintain, repair and operate Gas System Facilities over, under and upon the present and
future roads, streets, alleys, bridges, easements;° rights -of -way and other public places ( "public
right(s) -of- way ") throughout the Territory, for the purpose of supplying natural gas and related
services to residential, commercial and industrial users in Collier County (the "franchise ").
The franchise shall be exercised in accordance with established industry practices regarding
construction and maintenance and the orders, rules and regulations of the Florida Public Service
Commission ( "FPSC ") or any other regulatory body having jurisdiction over , and to the
extent permitted by law, and applicable County ordinances, rules and policies.
This grant of authority to is strictly, limited to the sale, delivery, transportation or
distribution of natural gas and rebated services only. It is explicitly recognized that this
franchise does not limit ability to operate a liquefied petroleum (commonly referred to as
LP gas, bottled gas, propane, or use, and /or develop LNG (Liquefied Natural Gas) business
within the County, similar, to any other liquefied petroleum business nor does it limit the County's
ability to assess taxes or fees upon the liquefied petroleum business within the limits permitted
under Florida Statutes. In the event 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 gas related equipment sales, public
communications, leased fiber optic capacity, video services, telecommunication services or any
other services other than the sales, delivery, transportation or distribution of natural gas and
related services, shall seek additional and separate permission from the County for such
activities.
Section 3. Easement/License.
The County hereby grants to an easement or license over, under and upon the public rights -
of -ways throughout the territory for the purpose of constructing, reconstructing, maintaining,
repairing and operating Gas System Facilities to supply natural gas and related services to users in
Collier County, and otherwise to exercise its rights and responsibilities under the franchise.
Section 4. RiLyht- of -Wav Not Warranted.
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The County does not warrant any right, title or interest in any street, alley or public way in
existence, or hereafter acquired, used by or as may be used by in the future. In the
event that the County closes, vacates or otherwise abandons any street, alley or other public way,
the County shall provide to an acceptable easement for facilities installed within such
street, alley or other public way.
Section 5. Acceptance of Franchise.
hereby accepts the terms of the franchise, and agrees to perform this franchise agreement
diligently and in good faith.
Section 6. Term of Franchise.
The initial term of the franchise shall be thirty (30) years' from the date of this franchise agreement.
This franchise agreement and the franchise granted hereunder shall automatically renew for
successive fifteen (15) year terms, unless either party delivers written notice of non - renewal at least
four (4) years prior to the expiration of the initial Oran subsequent renewal term.
Services by th
During the teen of the franchise, the County shall not engage in the distribution or sale of natural
gas in competition with ; provided, however, that nothing. herein shall prohibit the County
from purchasing natural gas from any other person or entity, if the County determines that it is in
the best interests of the County to do so.
Section S. Facilities.
a. Gas System Facilities shall; be located or relocated and so constructed, operated
and maintained so as 'not to interfere with existing public and private utility service facilities,
including; "without limitation, sanitary sewers ,dranage systems, water pipes, electrical conduits,
communications cables and, other such utility service facilities. Facilities shall not obstruct
or interfere with the public � uses of streets, roads, highways or alleys or means of ingress or
egress. Above grade facilities shall be kept to a minimum, and, to the extent necessary, shall be
installed as near to the outer boundaries of the public rights -of -way as is reasonably possible.
The location or relocation of all Facilities shall be made after has acquired 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. shall cooperate with the County at all times by
providing timely and complete information regarding the location of its Facilities.
b. Whenever, by reason of establishing a grade or by reason of changes in the grade of any
street, or by reason of the widening, grading, paving, or otherwise improving present or future
public streets, alleys, waterways, easements and other public places of the County or in the location
or manner of construction of any water pipes, electric conduits, sewers, or other underground
structure, it shall be deemed necessary by the County for to alter, change, adapt, relocate, or
conform any portion of the Gas System Facilities, such alterations, changes, adoptions, relocations
or conformance shall be made by , as may be directed in writing by the County, at cost
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without claim for reimbursement. shall, to the best extent possible, conform to and comply
with the efforts of the County to maximize the use of County property and to minimize the impact of
construction projects by merging projects with County projects.
c. Except in an emergency situation, before makes an excavation or disturbs the
surface of any of the streets, alleys, or other public rights -of -way, it shall make application for
a permit to the appropriate County authority. The County shall issue, or if applicable deny,
permits within twenty (20) business days of application by shall, with due
diligence and dispatch after such excavation or disturbance, place such streets, easements or
public rights -of -way in as good condition and repair as before such excavation or disturbance
was made, and in default thereof the County may make, such repairs and charge the
reasonable cost thereof to and collect the same from it.
d. To the extent consistent with Florida law, hereby agrees to abide by all the
rules, regulations and ordinances which the County has passed or might pass in the future,
including but not limited to those relating to landscape buffering and other such design and
development standards, and further agrees to 1.abide by any established policy which the
County or its duly authorized representatives have passed, established, or will establish;
provided, however, the County shall not pass any ordinance or regulation that results in a
material change in the rights or obligations of under this franchise, Qr that conflicts
with the laws of the State of Florida.
e. The right is hereby reserved to the County to adopt, in addition to the provisions
herein contained and existing applicable ordinances, such 'additional ordinances, rules,
regulations or policies as it shall find necessary in the exercise of its home rule and police
powers, provided that such regulations, by ordinance or otherwise, shall be reasonable, and
not conflict with the rights herein granted, and`shall not conflict with the laws of the State of
Florida.
L The County shall have the right to. observe all construction, location, restoration,
relocation and 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.
g. Nothing in this franchise shall be in hindrance to the right of the County or any
governmental authority to perform or carry on, directly or indirectly, any public works or
public improvements'of any description. Should the Facilities in any way interfere with the
construction, maintenance or repair of such public works or public improvements,
shall, at its own cost and expense, protect or relocate its Facilities, or part thereof, as
reasonably directed by County officials.
h. If any street, highway or avenue is to be paved by the County, the County shall
give written notice to not less than ninety (90) days prior to the commencement of
paving. Provided does not already have Facilities in the street, highway or avenue to
provide natural gas service to the surrounding houses and other structures, shall
survey the surrounding houses and other structures to determine whether, in its sole
discretion, construction of Facilities in the street, highway or avenue in question is
economically feasible. Where such construction is determined to be economically feasible,
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shall construct such Facilities in the street, highway or avenue in question prior to
paving by the County. However, in the event the believes that such construction
may not be completed prior to County's planned paving schedule, the Parties agree to
negotiate a revised paving schedule satisfactory to both Parties.
L 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 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 shall take safety.precautions to alert the public of
work, which may include, but is not limited to, the use of barricades and signs and such other
safety precautions as may be applicable under County ordinances, rules or policies.
j. The County shall not be liable for any cost or expense in connection with the
location or relocation of Facilities at the. request of any non - governmental third party.
Such requests need not be honored until such non - governmental third party has made
arrangements to reimburse for such cost or expense; provided, however, that this
sentence shall not apply if the non- governmental'third party has a pre- existing agreement or
franchise with the County which "provides that reimbursement is not required under the
circumstances presented.
Section 9. Installation of Gas Mains: Man on Gas Lines.
a. Before the commencement of the construction "of any Gas System Facilities,
shall provide a drawing to the County establishing the location, lines or any other information
reasonably requested by the County in connection with the 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 "As- Built" plans
will be furnished to the County.:" , agrees that the materials to be used in the construction,
operation and maintenance of the Facilities and the services to be rendered shall be equivalent
to those provided to other franchised communities.
b. shall, at all times, keep an accurate map showing the location of all Gas
System Facilities laid, and maintained by under this franchise, which shall be accessible
for inspection by County officials upon advance written notice during reasonable business
hours.
Section 10. Leaks, Ruptures and Emergency Response.
a. shall have in place, at all times during the term of this franchise, a system
for remotely monitoring pressures and flows across the Territory. The remote monitoring
must be able to accurately detect pipeline ruptures.
b. During the term of this Franchise, shall have a written emergency response
plan and procedure for locating leaks and ruptures and for shutting down valves as rapidly as
possible.
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c. Upon acceptance of this franchise, shall provide the County with a copy of
its emergency response plans and procedures, as may be amended, including, but not limited
to, emergency rupture response.
d. emergency plans and procedures shall designate emergency response
officials responsible for the Territory and a direct 24 -hour emergency contact number for the
control center operator. shall, after being notified of an emergency, cooperate with the
County and make every effort to respond as soon as possible to protect the public's health,
safety and welfare.
e. The parties agree to meet annually to review the` emergency plans and procedures.
shall coordinate this meeting with the County.
f. shall be solely responsible for all necessary costs incurred in responding to
any leak, rupture or other release of natural gas from Facilities, including, but not
limited to, detection and removal of any contaminants from air, earth or water, and all
remediation costs.
g. shall notify the County immediately, or 'as soon as reasonably possible, in
the event of any leak, rupture or other release of natural gas which may create a hazard to the
health, safety or welfare of the residents of the County.
h. If requested by the County in° writing, shall provide a written summary
concerning any leak or, rupture within thirty, (30) days of the event, including, but not limited
to, the leak or rupture's date, time, amount; location, response, remediation and other
agencies which has notified.
i. The County may require that any substantial leak or rupture be investigated by an
independent pipeline consultant selected by-the County. shall be solely responsible
for paying all of the consultant's costs and expenses incurred in investigating the occurrence
and reporting the findings' shall meet and confer with the independent consultant
following the consultant's investigation to address whether any modifications or additions to
Facilities may be warranted.
j. If the consultant recommends that make modifications or additions to
Facilities, covenants to consider the recommendations in good faith. If does
not concur with the consultant's recommendations, may appeal the recommendations
provided to the Collier County Board of County Commissioners (Board) for consideration.
The decision of the Board shall be final.
Section 11. Accidents or Damages.
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 by , its employees, agents, contractors, sublessees
or licensees, of any of its Facilities.
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Section 12. Rates, Fees and Charles.
All rates, fees and charges established by from time to time shall be subject to such
regulation as may be provided by law and shall include, but not be limited to, rates, fees and charges
authorized by the FPSC.
Section 13. Franchise Fee.
a. shall pay to the County, commencing _ days after the effective date hereof,
and each month thereafter for the remainder of the term of this franchise agreement, a franchise fee
equal to percent (_%) of the gross revenues derived by from the sale, delivery,
transportation or distribution of natural gas and related services provided to all customers within the
Territory. Such fee shall be shown as a separate line item on customer bills, and shall be remitted
monthly by to the County no later than the y" day�o fihe, , following month. The parties
agree that the amount of such fee is fair and equitable as'paymenit to the County for giving up its
right to provide natural gas and related services in the Territory, allow_ ing the use by of its
public rights -of -way, and incurring the cost of maintaining the public rights -of- -way and regulating
certain activities of pursuant to this franchise. and County agree that payment by
to the County of the franchise fee shall not be considered a tax, but shall be in addition to any
and all taxes which are now or may hereafter payable by pursuant to any federal, state or
local law or ordinance.
b. shall continue to pay the franchise fee to the County as long as is providing
services and collecting revenue therefore from inhabitants of the County, whether during the term
set forth in this franchise or 'any holdover' period beyond such tern or after termination of this
franchise as provided herein.
Section 14. Verification of Franchise Fee.
a. " '` shall, , establish , and maintain;.. appropriate accounts in accordance with
generally--; accepted accounting �",methods, and shall maintain records in such detail that
revenues "" within the limits., of the County are consistently declared and identified
separately frorn all other revenue. All, records shall be maintained for a minimum of three
(3) years, or longer if required by applicable regulatory bodies. The County or its auditors may,
upon reasonable` notice within ninety (90) days after each anniversary date of this franchise
agreement, examine the records of relating to the calculation of the franchise fee payment for
any prior year or years. Such examination shall be made during normal business hours at an
office located in Florida nearest to or within the County, or, at the County's request, by transfer of
electronic records for such examination. Such audit shall be impartial and all audit findings shall be
promptly reported to . In the event that an underpayment is found, shall pay the
amount of the underpayment together with interest as identified later in this section within thirty
(30) days of written notice by the County to do so. In the event that an overpayment is found,
shall receive a credit against the next monthly franchise fee payment(s), until the credit is
fully exhausted. The County shall pay the cost of the audit, unless an underpayment greater than
$1,000 is found, in which case, shall pay (or reimburse the County for) the cost of the audit.
In the event that an audit of books determines that made underpayment that
exceeded $1,000, shall pay interest at the rate of twelve percent (12 %) per annum on
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the amount underpaid calculated from the date the amount was due and until the date
finally is paid.
b. In the event enters into a franchise or other agreement with any municipality
within Collier County which provides to the municipality a more favorable franchise fee than
that provided to the County under this franchise, the franchise fee payable to the County
hereunder shall automatically change to the more favorable franchise fee provided to the
municipality.
Section 15. Oualitv of Service.
a. shall comply with all applicable local, state and federal rules, regulations and
statutes relating to the sale, delivery, transportation or distribution of natural gas and related services
to users in the Territory, and shall generally perfonn all services hereunder in a professional,
competent and efficient manner, and at a level of service which is equal to or greater than its highest
level of service in other areas served by
b. shall provide gas service within the Territory in compliance with the rules and
regulations of the FPSC. All complaints against from customers inf the Territory shall be
resolved by in accordance with FPSC rules, regulations and orders. shall maintain a
toll free telephone number 24 hours a day to accept service calls and complaints from customers in
the Territory. shall render efficient service, make repairs promptly, and interrupt service only
for good cause. Any complaints shall be investigated and acted upon as soon as possible.
c. agrees to provide to the County within ten (10) days of filing with the FPSC, a
copy of any and all Gas Incident Reports for any incident occurring within the Territory.
Section 16. Records and Reports.
The County shall have access, at all reasonable business hours, to all of plans, contracts,
engineering, accounting, finance, statistical, customer and service records relating to performance
under this franchise. The County also shall have access to all records on file with the FPSC.
does hereby permit the disclosure to the County of any and all records and reports filed with the
FPSC which may be relevant to this franchise, as may be required by the County. In accordance
herewith, does hereby authorize the FPSC to furnish full and complete records and reports to
the County, as may, from time to time, be requested by the County
Section 17. Insurance.
at all times during the exercise of its rights under this franchise, shall carry general
liability insurance in the amount of Five Million Dollars ($5,000,000.00) covering
wrongful death, personal injury and property damage which may result from the
actions of in the construction, operation or maintenance of its Facilities. The County
shall be named as an additional named insured on such policy. A current certificate of
insurance (including additional insured status) shall be filed with the County Manager or
his /her designee at all times. The insurance policy shall contain a provision whereby the insurer
is obligated to notify the County Manager or his/her designee, in writing, at least thirty (30)
days before any material alteration, modification, or cancellation of such policy is to become
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effective. Notwithstanding the foregoing, may meet the insurance requirement
above by using, in whole or in part, self - insurance. In the event desires to meet the
insurance requirement by using self - insurance, shall provide the County with
documentation acceptable to the County attesting to self - insured status. The County
shall have sole discretion whether to accept self - insured status or require the insurance
minimum and related certificate. The County shall be covered under any self - insurance to
the same extent that it is required to be covered by general liability insurance.
Section 18. Indemnification.
shall defend, hold harmless and indemnify the County;_ including its commissioners,
officers, employees and agents, with respect to any and all actions, causes of action, liabilities,
losses, damages or expenses (including reasonable, attorneys' fees at all levels of legal
proceedings, including fees and costs associated with, any appeal or action to recover fees and
costs) arising out of or relating to any negligence,' intentional. misconduct, breach of this
franchise agreement or breach of applicable law'' by in the performance or non-
performance of any activities within the scope of this franchise agreement.. This section 18 shall
survive the termination of this franchise agreement.
Section 19. Rizht of County to Intervene.
The County reserves to itself the right to intervene, in the County's sole discretion, in any suit,
action or proceeding involving any provision of this franchise, and shall not oppose
County intervention. agrees to advise the County of any such suit or proceeding.
Section 20. Change of Law.
In the event of any change of applicable law which substantially and materially changes the
rights or obligations of either party under this franchise agreement, such parry may provide
written notice 'to the other of the change ° "oi law. Promptly after delivery of such notice, the
parties shall negotiate in good faith to revise this franchise agreement so that the parties are, as
nearly as-, `practicable, restored to the, positions which each enjoyed at the inception of the
franchise agreement. If either'party deems it necessary, such party may invoke the services of a
qualified mediator to assist the parties in their negotiations, with the cost of such mediator being
divided equally between the parties. If, despite such efforts, the parties are not able to enter into
a revised franchise agreement, then, at the election of either party, this franchise agreement shall
terminate on a mutually agreeable date, no later than two (2) years after the delivery of the
written notice of change of law.
Section 21. Default.
Failure on the part of either party to comply in any material respect with any of the provisions of
this franchise agreement shall constitute a default and shall be grounds for termination of this
agreement, in addition to any other remedy provided by law or in equity; provided, however, that if
the allegedly defaulting party contests the existence of the default, no termination of this agreement
shall take effect until there is final determination (after the expiration or exhaustion of all rights of
appeal) by a court of competent jurisdiction that such party has failed to comply in any material
respect with any of the provisions of this franchise agreement, and such party has failed to cure the
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default within six months after the final judicial determination. A public hearing shall be held
before any decision to terminate this franchise agreement is made by the County. Notwithstanding
the above, a court of competent jurisdiction shall be authorized to enter a temporary or permanent
injunction or restraining order at any time to the extent necessary to protect the health, safety and
welfare of the residents of Collier County.
Section 22. Effect of Deregulation.
In the event or any aspect of the natural gas business, as contemplated hereunder, is
deregulated, shall maintain and operate the Gas System Facilities and render efficient service
in accordance with the rules and regulations as are, or may be, promulgated by the County. In the
event the County has not promulgated rules and regulations at the time of deregulation, then
agrees to maintain and operate the Facilities in compliance with. the rules and regulations by which
they are governed prior to deregulation until such time`'as the County has had an opportunity to
promulgate rules and regulations or pass an ordinance governing those items regulated by the FPSC
regarding rates, service standards, safety standards and quality controls:
Section 23. Termination.
This franchise agreement and the franchise granted hereunder shall terminate up1 on, .the earlier of (a)
the expiration of the initial or any renewal term, without further renewal for an additional term, (b) a
change in law, pursuant to section 20 above, (c)-a, default, pursuant to section 21 above; or (d) the
insolvency, liquidation or entry of into receivership or bankruptcy. Upon termination, and
within two (2) years of written notice from the County to do so, at its sole cost, shall remove
all facilities of its Gas System Facilities from the public rights -of -way, and promptly restore or
repair such public rights - of -way to their condition immediately prior to such removal. If fails
or refuses to comply with the requirements of the prior sentence, shall be deemed to have
abandoned all facilities of its Facilities remaining in the public rights -of -way at the end of the two
(2) year notice period, and ownership and title to such Facilities shall automatically and irrevocably
transfer, t' &. the County,: „without further action or transfer document executed by or
consideration paid by the County. and the County shall generally cooperate with each other
and with any new supplier of natural gas to the Territory, to the end of achieving a smooth transition
of service, following tennination'of this franchise agreement.
Notwithstanding any provision to the contrary, acknowledges that nothing
contained in this franchise 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 24. Public Hearing.
This franchise agreement has been entered into after a public hearing, in accordance with applicable
law.
Section 25. Miscellaneous.
a. Assignment. may not (a) transfer or assign this franchise agreement or the
franchise granted hereunder, or any portion thereof, to any third party, (b) transfer, assign or turn
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over possession, operation or control of the Facilities, or any portion thereof, to any third party,
or (c) transfer a controlling ownership interest in to any third party, without the express
written consent of the County, which consent shall not be unreasonably withheld. Any proposed
transferee or assignee shall meet the same requirements and comply with the same rules and
regulations as an original applicant for a franchise. Without limitation, as a precondition to the
County's consent, any proposed transferee or assignee shall demonstrate to the reasonable
satisfaction of the County each of the following: (a) sufficient experience in the construction,
reconstruction, maintenance, repair and operation of natural gas distribution systems, (b) an
acceptable history of customer satisfaction in its prior operation of natural gas distribution systems,
and (c) sufficient financial ability to perform all aspects of this franchise agreement. A public
hearing shall be held on any request for transfer or assignment, before a final decision is made.
b. Time of the Essence. Time is of the essence iri,the performance of each and every
provision of this franchise agreement.
c. Acts of God. Notwithstanding anything to the contrary, 'neither party shall be liable
for non - performance or delay in performance of any of its obligations under this franchise
agreement, where such non - performance or delay is due to any cause .which is outside the
reasonable control of the party and could not have been - 'avoided through the exercise of
reasonable care, including, without_ limitation, "Acts of God; unavoidable casualties and labor
disputes.
d. No Waiver. The failure of either party to enforce any provision of this franchise
agreement shall not be construed as a general waiver or relinquishment on its part of such
provision in any other, instance, and such provision shall nevertheless remain in full force and
effect.
e. Binding Affect. All of the ,provisions of this franchise agreement shall be binding
upon and inure to the benefit of and be enforceable by the parties, and their approved transferees
and assignees.
f. Governing Law; Venue; Attorney Fees. This franchise agreement shall be construed,
governed and interpreted according to the laws of the State of Florida. Venue for resolution of
any dispute shall be in Collier County, Florida. Each party shall bear its own attorney fees in any
dispute arising under this franchise agreement, except as provided in section 18 above relating to
indemnification.
g. Entire Agreement; Amendments; Counterparts. This instrument constitutes the
entire agreement between the parties and supersedes all previous discussions, understandings and
agreements. Amendments to and waivers of the provisions of this franchise agreement shall be
made by the parties only in writing by written amendment or other appropriate written document.
This franchise agreement may be executed in separate counterparts, each of which shall be
deemed to be an original and all of which together shall constitute one and the same instrument.
h. Construction/Interpretation of Agreement. Each party has participated equally in
the negotiation and drafting of this franchise agreement. The provision of this agreement shall
not be interpreted for or against either party upon the basis that such party was or was not the
preparer of this agreement.
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i. Survival of Provisions. Any provision of this franchise agreement which is not fully
performed as of the date of termination of the agreement, or which, by its terms, applies to the
period of time following termination, shall survive such termination.
j. Sovereign Immunity. Nothing herein shall constitute a waiver by the County of its
sovereign immunity, beyond the partial waiver set forth in section 768.28, Florida Statutes.
IL Waiver of Jury Trial. EACH PARTY KNOWINGLY AND VOLUNTARILY
WAIVES ITS RIGHT TO A TRIAL BY JURY WITH RESPECT TO ANY CAUSE OF
ACTION OR ISSUE ARISING OUT OF OR RELATING TO THIS FRANCHISE
AGREEMENT OR THE FRANCHISE GRANTED HEREUNDER, AND AGREES THAT
SUCH CAUSE OF ACTION OR ISSUE SHALL BE DETERMINED ON A NON -JURY
BASIS.
1. No Third -Party Beneficiaries. Except as otherwise expressly provided herein, this
franchise agreement is solely for the benefit of the named parties and their approved transferees
and assignees, and no enforceable right or cause of action shall accrue hereunder to or for the
benefit of any other person or entity who is not a named party to this agreement.
m. No Joint Venture. Nothing. in this franchise shall be deemed to create a joint
venture or principal -agent relationship between the parties, and neither party is authorized to, nor
shall either party act toward third persons or the public in any manner, which would indicate any
such relationship with the other.
n. Savings Provision. The parties agree that this franchise agreement constitutes a valid
and binding agreement, ,.legally enforceable in accordance with its terms. However, if, for any
reason, a court or other governmental person, entity or agency of competent jurisdiction, should
determine that this agreement is not valid -and binding under applicable franchise law, the parties
agree that to the extent possible, the agreement shall be upheld under any other applicable law
which sustains the validity and binding effect of the agreement, including, without limitation, the
law applicable to licenses and the charging of a license fee.
o. Notices. Any notice required hereunder shall be in writing and shall be delivered by
personal delivery; courier, express or overnight mail, or certified mail, return receipt requested,
addressed to the appropriate party as follows:
PASSED AND DULY ADOPTED by the Board of County Commissioners of Collier
County, Florida this day of 92014.
ATTEST: BOARD OF COUNTY COMMISSIONERS
DWIGHT E. BROCK, CLERK COLLIER COUNTY, FLORIDA
By: By:
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TOM HENNING, CHAIRMAN
Approved as to form and legality:
Jeffrey A. Klatzkow
County Attorney
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