Agenda 11/12/2013 Item #10C11/12/2013 10.C.
EXECUTIVE SUMMARY
Recommend that staff be directed to review the potential for a new private natural gas
utility opportunity to service the Immokalee Area and report back to the Board for further
consideration and possible action.
OBJECTIVE: Recommend that staff be directed to review the potential for a new private
natural gas utility opportunity to service the Immokalee Area and report back to the Board
for further consideration and possible action.
CONSIDERATIONS: Immokalee Natural Gas LLC (ING, LLC), a Florida Limited Liability
Corporation, through its representative, has approached the County with a request to provide
natural gas service to the Immokalee area. A proposed ordinance and franchise agreement has
been provided by ING LLC, and review has been requested by the organization's Counsel. It is
requested that the County Attorney review the attached Franchise Agreement and potential
arrangement for consideration for further direction by the Board of County Commissioners at the
next Board of County Commissioners meeting. This Executive Summary is intended to direct
staff to communicate and investigate the possibilities, opportunities, and considerations of such a
proposed arrangement.
Similar proposals and franchise agreements are apparently in place for City of Marco Island and
City of Naples, among others. Relevant information might also be available from Florida Public
Service Commission.
Further information and details have been requested from ING's representative pertaining to
benefits, scope of infrastructure, definition of service area, projected costs and revenues,
commitments, etc., to facilitate the County to better evaluate the opportunity. Such details will be
provided and forwarded as appropriate as it is received from ING's representative.
Generally, it is thought that there would be a substantial economic potential and benefit to have
Natural Gas infrastructure available to industry in Immokalee, as well as to provide ready
infrastructure for potential new commercial/industrial business development opportunities in
various areas designated for such economic development.
FISCAL IWACT: T.B.D.
LEGAL CONSIDERATIONS: This matter has been reviewed by the County Attorney.
Should the Board elect to pursue this opportunity, the County Attorney will work with staff and
specialized counsel to bring back for further discussion both a proposed franchise agreement and
a franchise ordinance. This item requires majority vote for approval. -JAK
GROWTH MANAGEMENT IMPACT: T.B.D.
RECOMMENDATION: Recommend that staff be directed to review the potential for a
new private natural gas utility opportunity to service the Immokalee Area and report back
to the Board for further consideration and possible action.
PREPARED BY: Jim Flanagan for Commissioner Tim Nance
AGENDA DATE: November 12, 2013
Attachments: Sample Ordinance/Fro packet Page -362- t
COLLIER COUNTY
Board of County Commissioners
Item Number: 10.10.C.
11/12/2013 10.C.
Item Summary: Recommend that staff be directed to review the potential for a new
private natural gas utility opportunity to service the Immokalee Area and report back to the
Board for further consideration and possible action.
Meeting Date: 11/12/2013
Prepared By
Name: FlanaganJim
Title: VALUE MISSING
10/29/2013 2:11:50 PM
Submitted by
Title: VALUE MISSING
Name: FlanaganJim
10/29/2013 2:11:52 PM
Approved By
Name: KlatzkowJeff
Title: County Attorney
Date: 10/29/2013 4:41:41 PM
Name: GreenwaldRandy
Title: Management/Budget Analyst,Office of Management & B
Date: 10/30/2013 8:27:34 AM
Name: KlatzkowJeff
Title: County Attorney
Date: 10/30/2013 10:36:54 AM
Name: OchsLeo
Title: County Manager
Date: 11/2/2013 9:58:52 AM
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11/12/2013 10.C.
NATURAL GAS
FRANCHISE AGREEMENT
ORDINANCE NO.
AN ORDINANCE GRANTING TO IMMOKALEE NATURAL GAS, LLC, ITS SUCCESSORS AND ASSIGNS,
AN EXCLUSIVE NATURAL GAS FRANCHISE AGREEMENT TO USE THE PUBLIC RIGHTS OF WAY OF
THE COUNTY OF COLLIER, FLORIDA, AND PRESCRIBING THE TERMS AND CONDITIONS UNDER
WHICH SAID FRANCHISE MAY BE EXERCISED; MAKING FINDINGS; AND PROVIDING AN EFFECTIVE
DATE; REPEALING PRIOR ORDINANCE.
WHEREAS, IMMOKALEE NATURAL GAS, LLC (hereinafter referred to as "ING, LLC ") and Collier
County, Florida, (hereinafter referred to as "The County ") desire to enter into a franchise agreement for
a period of fifty (50) years commencing from the date provided herein; and
WHEREAS, the Collier County Commission finds that it is in the public interest of its citizens to
enter into a new franchise agreement with ING, LLC.
NOW THEREFORE, BE IT ENACTED BY THE COUNTY OF COLLIER COUNTY, FLORIDA, THAT:
SECTION 1: DEFINITIONS 100"%,
For the purposes of this Ordinance, the following terms shall have the meaning given herein.
A. "Customer" shall mean any Person served by the Company within the corporate limits of
the County of Collier.
B. "County" shall mean t#e Collier County, Florida, its successor and assigns.
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C. "Company" shall mean IMMOKALEE NATURAL GAS, LLC, a Florida limited liability
company, 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 and as
are situated within Collier County, Florida.
E. "Effective Date" shall mean the date this Franchise becomes Effective as described in
Section 18 below.
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F. "Franchise" or "Franchise Agreement" shall mean this agreement, as passed and
adopted by the County and accepted by the Company.
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 Public Service
Commission) received by the Company from any Customer from the sale or
transportation 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" or "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,
n waterway, bridge, easement, public place or other right -of -way that is owned by the
County.
SECTION 2: GRANT
The County hereby grants to the Company the exclusive right, privilege, and franchise to lay,
erect, construct, operate and maintain in, 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 designated area, or in such
territory as may be hereafter added to a Natural Gas Distribution System subject to the terms and
conditions herein contained; along with the exclusive right to sell natural gas retail and wholesale prices,
within the designated Franchise area.
SECTION 3: TERM
Except as provided in Section 15, the Franchise hereby granted shall be for a period of fifty (50)
years from the effective date of this ordinance.
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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 County, 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 County.
B. Notwithstanding the foregoing, the Company may, without the consent of the County,
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), or pledge or mortgage of such Franchise in connection with the
physical property owned and used by it in the operation of the Distribution System for
the purpose of securing payment of monies borrowed by the Company.
SECTION 5: COUNTY COVENANT
As a further consideration for this Franchise Agreement, the County 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, or allow anyone else to distribute or sell Natural Gas, within the limits
of the Franchise area, as modified, during the terms of this Franchise Agreement.
SECTION 6: USE OF STREETS
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 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 County authority. The County shall issue, or if applicable deny, permits within ten (10)
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business days of application by the Company. In consideration of the franchise fees contemplated in
this agreement, the County shall not charge the Company any fees for the issuance of such permits. 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; provided, however, that should the Company fail,
within ten (10) days of its receipt of written notice from the County, to restore such Rights -of -way, then
the County may undertake such restoration (other than any restoration work on the Distribution
System) and charge the reasonable cost thereof to the Company.
To the extent consistent with Florida law, the Company hereby agrees to abide by all the rules
and regulations and ordinances which the County 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 County or its duly
authorized representative has passed, established, or will establish, in the exercise of its police power;
provided, however, that the County 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.
SECTION 7: MAINTENANCE
All such components of the Distribution System of the Company located within the County shall
be installed and maintained in accordance with the accepted good practice and in accordance with the
orders, rules and regulations of the Florida Public Service Commission.
SECTION 8: LAYING OF PIPE
All components of the Distribution System shall be laid consistent with all applicable codes,
rules, regulations and laws, including, to the extent consistent with all applicable codes, rules,
regulations and laws, specifications contained in County permits.
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SECTION 9: CONSTRUCTION WORK
The County 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 County in, across, along, or under any Right —of -way. 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 County 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 County
without claim for reimbursement. If the County 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 County, as part of its
permitting or approval process, the County 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 County unless it has received specific permission from
the County or its duly authorized representative.
SECTION 10: FRANCHISE FEE
A. Subject to Section 11 below, 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 Franchise Agreement, the Company, its successors or assigns, shall pay to the County, or its
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successors, a sum of money equal to three percent (3 %) of the Company's Natural Gas Revenue, less any
adjustments for uncollectable accounts, from the sale or transportation of Natural Gas to Customers
within the corporate limits of the County. 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 11: 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 revenues within the corporate limits of the County are consistently declared separately from all
other revenues, and such records shall be maintained within the State of Florida. Upon request by the
County, or its designated representative, and execution of a confidentiality agreement reasonably
satisfactory to the Company, the Company shall make available said records within thirty (30) days to
the County for the determination of the accuracy of the Natural Gas 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 12: INSURANCE
During the term of this Franchise, the Company shall file with the County Clerk annually and
shall keep in full force and effect at all times during the effective period hereof, insurance certificates
evidencing a general liability insurance policy or evidence of self - insurance within the corporate limits of
the County, as they currently exist or may exist in the future. Each such policy shall be in the minimum
sum of $2,000,000.00 for injury or death to any one person, and in the minimum sum of $5,000,000.00
for injury or death to all persons where there is more than one person involved in any one accident, and
in the minimum sum of $2,000,000.00 for damage to property, resulting from any one accident, and
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each of the said minimum sums shall remain in full force and shall be undiminished during the effective
period of this Ordinance. The coverage requirements set forth in this Section 12 may be satisfied, in
whole or in part, with self- insurance.
Every such insurance policy shall contain a provision whereby every company executing the
same shall obligate itself to notify the clerk of the County, in writing, at least thirty (30) days before any
material alteration, modification, or cancellation of such policy is to become effective.
SECTION 13: INDEMNIFICATION
In consideration of the permissions granted to the Company by this Franchise Agreement, the
Company hereby agrees to indemnify and hold harmless the County, its officers, agents and employees
from and against claims, suits, actions, and causes of action, to the extent caused by the Company's
operation of the Natural Gas Distribution System within the County during the term of this Franchise
and resulting in personal injury, loss of life or damage to property sustained by any person or entity,
through or as a result of the doing of any work herein authorized or the failure to do work herein
required, and including all reasonable costs, attorney's fees, expenses and liabilities incurred by the
County in connection with any such claim, suit or cause of action, 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, contractors, 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 County,
its officers, agents, or employees. The provisions of this section shall survive the expiration or early
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 ING, LLC.
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SECTION 14: TERMINATION BY COUNTY
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, shall
authorize and empower the County to declare a termination this Franchise Agreement; provided,
however, that before such action by the County shell become operative and effective, the Company
shall have been served by the County with a written notice setting forth all matters pertinent to such
violation or default, and describing the action of the County 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 County, 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 15: CHANGES IN PROVISIONS HEREOF
Changes in the terms and conditions hereof may be made by written agreement between the
County and the Company.
SECTION 16: SEVERABILITY: CHANGE IN LAW
A. If any section, part of a section, paragraph, sentence, or clause of this Ordinance shall be
adjudged by a court of competent jurisdiction to be invalid, such decision shall not
affect 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
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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 County 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 County may terminate this Franchise Agreement by providing
ninety (90) days written notice to the other party.
SECTION 17: GOVERNING LAW
This Franchise shall be governed by the laws of the State of Florida and applicable federal law.
SECTION 18: EFFECTIVE DATE
This Franchise Agreement shall become effective upon its acceptance by the Company, which
acceptance must be evidenced in writing within sixty (60) days of the County's passage and adoption
hereof.
ATTEST:
PASSED AND CERTIFIED AS TO PASSAGE this
County Clerk, Collier County Florida
APPROVED AS TO FORM AND CORRECTIONS:
day of
ACCEPTED this day of . A.D. 2013.
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A.D., 2013.
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