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Ordinance 06-1801 ORDINANCE N0.06-1501 AN ORDINANCE OF THE CITY ~DF LONGWOOD, FLORIDA, RELATING TO THE GRANTINGa OF A GAS FRANCHISE WITHIN THE CITY OF LONGWOOD; GRANTING TO FLORIDA PUBLIC UTILITIES COMPANY., ITS SUCCESSORS AND ASSIGNS A NON-EXCLUSIVE C:AS UTILITY FRANCHISE; PROVIDING FOR COLLECTION OF A FRANCHISE FEE IN EXCHANGE FOR USE OF .PUBLIC RIGHTS-OF-WAY; PROVIDING FOR AN ACCOUNTING OF GROSS REVENUES; PROVIDING ANON-COMPETE CLAUSE, CONFLICTS CLAUSE AND A SEVERABILITY CLAUSE; PROVIDING AN EFFECTIVE DATE; AND FOR OTHER PURPOSES. WHEREAS, Florida Public Utilities Company and the City of Longwood, Florida,. mutually desire to enter into an agreement to formalize and structure their relationship and to grant to Florida Public Utilities Company the non-exclusive, limited access and use of the City's Rights-of--Way, roads, streets, avenues, alleys, highways, bridges, easements and certain limited other public places; and, WHEREAS, without the approval of the franchise to allow Florida Public Utilities Company the right to continue to use and accepting certain limited City of Longwood Rights-of--Way that right is subject to unrestricted termination; and, WHEREAS, the City Commission of the City of Longwood finds that it is in the best public interest to grant a gas franchise to Florida Public Utilities Company. NOW THEREFORE, BE IT ORDA:tNED BY THE CITY COMMISSION OF THE CITY OF LONGWOOD, FLORIDA: DEFINITIONS AS USED HEREIN: Franchise means the non-exclusive rights granted under this Ordinance by the City of Longwood, Florida, to .Florida Pub1iG~ Utilities Company by which the City authorizes Florida Public Utilities Company to utilize on anon-exclusive, limited basis certain of the City's Rights-of--Way, roads, streets, avenues, alleys, highways, bridges, easements and other lunited public places to erect, construct, reconstruct,. locate, operate, use and maintain a gas utility system within the City. FranclzisE~ fee year means each 12-month period, beginning the effective date of this Ordinance, during which period the franchise fee is set at a certain rate by the City, and which period of time may be used as a reference for other matters contained in this Ordinance. GRANTEE means Florida Public Utilities Company, a Florida corporation. City of Loni~wood Ordinance iVo. 06-1801 Fage 1 of 14 GRANTOR means the City of Longwood, Seminole County, Florida, a Florida ~ municipality. Propert3~, as used herein, means pipes, lines, mains, fencing, walls, buildings, stations, facilities, equipment, and all other tangible materials used by Florida Public Utilities Company in the exercise of its rights ar.~d operations under this Ordinance. Public Service Commission or PSC means the agency charged with the powers and duties conferred on it by Florida Statutes, to regulate certain utility companies and their facilities. Revenues mean payments made by customers with physical locations in the GRANTOR'S jurisdiction, for service provided through GRANTEE'S lines, pipes, or other facilities. Right-of--Way means the surface of and the space above and below any public street, road, lane, path, alley,. avenue, bridge, e:asement, court, sidewalk or other public place, now or hereafter existing as such within GRANTOR'S jurisdiction and over which GRANTOR exercises ownership, control, effective control, police or proprietary powers. UtilitJ~ System means, in part or collectively, the Property maintained, and operated by GRANTEE in exercising its rights a.nd carrying out its obligations under this Ordinance, as well as the use and operation of the same. INTENT: It is the. intent of GRANTOR and GRANTEE to create and ensure structure, guidance, and fairness in GRANTEE'S non-exclusive use of GRANTOR'S Rights-of--Way and for GRANTOR to receive a reasonable fra~ichise fe~~ as rent and consideration therefore. ARTICLE 1I: GENERAL SECTION 1. Non-exclusive Franchise Granted. The City of Longwood, a municipal corporation of the State of Florida (hereinafter "GRANTOR"), hereby grants to FLORIDA PUBLIC UTILITIES COMPANY, a corporation of the State of Florida (hereinafter `'GRANTEE"), its successors and assigns, for the teen of thirty (30) years, beginning the first day of the first full calendar month following the date of acceptance of this non-exclusive franchise grant, the right, privilege and authority or franchise to construct or otherwise acquire and to own, maintain, equip and operate Property to which GRANTEE has a right for the manufacture, purchase, transmission and distribution of artificial, natural and/or mixed gas (hereinafter referred to generally as "gas"), including. the right without the payment by GRANTEE of any special tax, assessment or charges (except Right-of--Way use and construction permits ~ and approvals and franchise fee) therefore to construct, lay,. extend, maintain, renew, City of Longwood Ordinance No. 06-1801 Page 2 of 14 remove, replace, repair, use and operate gas L.jtility System in, under, on or across the ~ present and future public Rights-of--Way easernents and other public places within the present or any future corporate limits of the GRANTOR or its successors, for the purpose of distributing, supplying and selling gas to GRANTOR or its successors, and to persons and corporations inhabitants thereof; as well as to persons or corporations beyond the present or future corporate limits thereof; but nothing herein contained shall relieve GRANTEE from meeting all applicable requirements of the GRANTOR'S Code of Ordinances including, but not limited to, the City of Longwood Land Development Code and Building and Zoning Codes (which are not in conflict with the Florida Administrative Code and/or the Code of Federal Regulations requirements) and the payment of any fees, licenses or ad valorem taxes ordinarily imposed by GRANTOR. on similar business activities. GRANTEE shall not be relieved of any obligation to comply with any of the provisions of this Ordinance, the franchise, or any rule, regulation, requirement or. directive promulgated thereunder because of any failure of GRANTOR or its officers, agents or employees to enforce prompt compliance. SECTI®1!T 2. Gas Service Standards. At all times during the terns of this franchise, GRANTEE shall furnish and supply promptly and without discrimination gas of sta~idard quality and pressure to GRANTOR and its successors, and to persons, corporation;; and inhabitants thereof who request the same and agree to abide by GRANTEE'S rules and regulations, and shall acquire, construct, maintain, equip and operate all necessary facilities for the manufacture, purchase, transmission, supply and distribution of gas for the benefit and convenience of GRANTOR and its inhabitants. In any case where there is interruption or impairment of service, or failure to adequately supply gas GRANTEE shall promptly, but not later than five (5) days after notice, remedy such condition; provided that any interruption or impairment of service resulting from a strike, accident, an act of God or other cause beyond the control of the GRANTEE shall, if remedied within a reasonable time period agreed to by the parties hereto, not constitute grounds for revoking and canceling any rights hereunder.. SECTIQ~N 3. Gas Service Rules; I~ate~c. GRANTEE shall have the right to adopt and enforce rules and regulations with respect to the extension, initiation, rendering and discontinuance of service to any customer for nonpayment of bills when due, or for failure to comply with the GRANTEE'S other rules. and regulations. All rates for gas and rules artd regulations established by GRANTEE from time to time shall be those prescribed an~i approved by the Florida Public Service Commission. SECTIOlY 4. Liability; Indemnity. Acceptance of this franchise grant also constitutes an agreement on the part of the GRANTEE, at GRANTEE'S sole cost and expense, to fully indemnify, protect, defend ~ and hold harmless the GRANTOR, and its officers, elected officials, agents, boards, City of Longwood Ordinance No. 06-1801 Page 3 of 14 commissioners, consultants and employees thereof; from. acid against any and all claims, suits, demands, expenses, fees, fines, penalties, proceedings, liability and judgments for damages or otherwise, actions, and costs of actions, including without limitation attorneys' and paralegals' fees at the pre-trial, trial, and appellate levels, arising out of, or alleged or in any way caused by: (a) GRANTEE'S breach or violation of this franchise grant or any provisions contained in this Ordinance, (b) GRANTEE'S construction, maintenance and operation of; and GRANTEE' S failure to properly construct, maintain, and operate, the Utility System, excepting only the gross negligence or intentional misconduct of GRANTOR; (c) the negligent acts or omissions of the GRANTEE or its officers, agents, employees, contractors or subcontractors re:(ated to the franchise granted herein, excepting only the gross negligence or intentional misconduct of GRANTOR; (d) GRANTEE'S violation or infringement of any copyright, trade mark, trade naive, service mark or patent, or of any other right of any person, firm or corporation arising from or related to the franchise rights granted hereunder; (e) GRANTEE'S failure to comply with the provision of any statute, regulation. or _ ordinance of any federal, state or any local agency applicable to the GRANTEE in ~ construction, maintenance and operation of the Utility System and GRANTEE'S business; and (f) GRANTEE'S actions which result in claims, demands, or suits for invasion of privacy and defamation by customers or users oi'the Utility System. In the event of any dispute between GRANTOR and GRANTEE as to whether GRANTEE'S actions or inactions were negligent, GRANTEE shall be presumed to be negligent unless and until GRANTEE shows by a preponderance of the evidence that GRANTEE was riot negligent. SEC'I'IOh15. Insurance. The GRANTEE shall provide, pay for and maintain satisfactory to the GRANTOR the types of insurance described herein. All insura~.lce shall be from responsible companies, duly authorized to do business in the State of Florida having a rating in Best's Insurance Guide of A or better, unless GRANTEE is authorized as aself-insurer by the Department of lllsurance under the laws of the State of Florida. All liability policies shall provide that the GRANTOR is an additional insured as to the operations under this chapter. The required coverages must be evidenced by properly executed Certificates of Insurance forms. The Certificates must be signed by the authorized representative of the insurance company and shall be filed and maintained with the GRANTOR annually during the term ~ of the franchise. Thirty (30) days advance wrii.ten notice by registered or certified mail City of Longwood Ordinance No. 06-1801 Page 4 of 14 must be given to the GRANTOR of any cancellation, intent not to renew or reduction in the policy coverages. The limits of coverage o:f insurance required shall be not less than the following: (a) Worker's Compensation and Employer's Liability Insurance Worker's Compensation-Florida Statutory Requirements (with increase over 30 ye~ers as may be amended) Employer's Liability-$500,000 limit each accident $5.00,000 limit per accident. $500,000 limit per each employee (b) Comprehensive General Liability Bodily injury, property damage, and product liability damage- $5,000,000 combined single limit each occurrence (c) Automobile Liability Bodily injury and property damage- $5,000,000 combined single limit ear>h accident SECTg~ly 6. Franchise Fees. In consideration of the privilege and private benefit granted for GRANTEE'S access and use of GRANTOR'S Rights-of--Way, GRANTEE will pay consideration and. rent to ~ GRANTOR in the form of franchise fees. Such fees are and are intended to be consideration and rent for GRANTEE'S access and use of GRANTOR'S Rights-of--Way, under the terms of this Ordinance and. is not a tax, nor is such fee intended to be a tax, nor is such fee to be rased by GRANTOR to provide, tax relief of any kind.. Within sixty (60) days after the first anniversary date of this grant and within sixty (60) days after each succeeding. anniversary date during the existence of this grant, the GRANTEE, its successors .and assigns, shall pay or have pai~j to the GRANTOR or its successors a franchise fee equal up to six and a half percent. (6.5%) of gross revenues of GRANTEE from the sale of gas to residential and general service customers for the twelve calendar months preceding the applicable anniversary da1:e. The actual franchise fee rate shall be set by GRANTOR at least 30 days in advance of the start of each new franchise fee year. GRANTOR and GRANTEE each acknowledge that the franchise fee rate cap of 6.5% reflects GRA.NTEE'S use of GRANTOR'S Rights-of- Way for distributing and supplying gas utilities to all of GRANTEE'S customers within GRANTOR'S jurisdiction, regardless of whether a portion ~or portions of GRANTEE'S pipes, facilities or other structures utilize private easements or public or private roadways not maintained by GRANTOR. GRANTOR and GRANTEE acknowledge ghat GRANTEE'S supply and distribution of gas along private easements or other public or private roadways is facilitated by GRANTEE'S use o:f GRANTOR''S Rights-of--Way and the maximum franchise fee rate would be higher if all of GRANTEE'S pipes, facilities .and other structw~es used only GRANTOR'S Rights-of--Way and no private easements or roadways. Acceptance of any franchise fee payment ~ shall not be deemed a waiver or City of Longwood Ordinance Mo. 06-1801 Page 5 of 14 I ~ release of any claims the GRANTOR may have: for additional sums, nor be construed as an accord that the amount paid is correct. Any franchise fee which remains unpaid after the dates specified herein shall be delinquent and shall thereafter accrue interest at the rate of eighteen percent (18%) per annum compounded monthly, or whatever greater or lesser rate as allowed by law until paid to GRANTOR, and GRANTEE shall reimburse GRANTOR for the actual out-of-pocket costs of GRANTOR, together with reasonable attorneys' fees associated with collecting any sums of money that GRANTEE is required to remit to GRANTOR pursuant to this Ordinance. This penalty shall not be imposed on annual adjustments made by GRANTEE in order to reconcile over billing and under billing over the year. SECTI®N 7. Accounting for Fees Collected. Within sixty (60) days after the close of each franchise fee year, an accounting by GRANTEE shall be made and provided to G:EZANTOR, at no cost to GRANTOR, to determine whether GRANTEE owes additional moneys, which shall be paid not less than thirty (30) days after such accounting is made, or whether GRANTEE is owed a refund, which shall be collected by offsetting the total amount of the refund from the next succeeding annual payment made to the GRANTOR. GRANTEE shall instruct. all Pool Managers or other entities that sell gas to accounts located within the corporate limits of the GRANTOR to collect and remit the franchise fee to GRANTOR. In addition to providing an annual accounting, GRANTEE shall, within thirty (30) days of receiving a _ written request from GRANTOR at any time, provide GRANTOR with reports, financial records and billing records relating to this Ordinance and GRANTEE'S operations hereunder. Such examination of accounts and records of GRANTEE by GRANTOR shall be made during the regular business hours of the GRANTEE. GRANTEE shall be obligated to maintain its billing records only for the period of time required by the PSC. The accounts and records of the GRANTEE pe~~taining to gas service rendered under this franchise shall be maintained within the State of Florida. GRANTOR agrees to keep all documentation and reports confidential, except as otherwise provided by law. The GRANTEE shall maintain its records in sufficient detail that revenues within the corporate limits of the GRANTOR are readily discernible from other revenues for auditing purposes. However, if the GRANTOR conducts an audit of the GRANTEE' S books and records, and substantial discrepancies (over 5%) are discovered which result in sums that should have been paid to GRANTOR, then the cost of such audit shall be paid by GRANTEE. SECTION Renewal of Franchise. Any application for renewal of this franchise shall be submitted to GRANTOR at least one (1) year prior to expiration of the franchise. However, the GRANTOR shall have no obligation to renew or continue the franchise, and the GRANTEE shall have no right to obtain a renewal or continuation of the franchise, absent the parties' agreement thereto. City of Longwood Ordinance No. 06-1801 Page 6 of 14 SECTION 9. Option to Purchase. Upon expiration, termination or forfeiture of this grant, GRANTOR shall have the right to purchase GRANTEE'S property used under this franchise grant, and customers serviced thereby, located within the municipal boundaries of the GRANTOR under the terms and conditions set forth herein. In order to exercise this option, GRANTOR must provide GRANTEE written notice of its intent to purchase said property and customers. GRANTEE and GRANTOR shall meet, to the ~,xtent reasonably necessary, to determine the terms and conditions of the sale of said property including, but not limited to, the purchase price for such facilities based upon the fair market value of GRANTEE' S property which is operating within the municipal boundaries of GRANTOR pursuant to this Ordinance. SECTION 10. Competition by Grantor. In further consideration of the GRANTEE'S undertakings hereunder as evidenced by its acceptance hereof, the GRANTOR agrees not to engage in the business of distributing and selling gas during the effectiveness of this franchise or any extension thereof' in competition with the GRANTEE, its successors and assigns, unless GRANTEE defaults under the provisions of this grant or fails to perforni in a manner satisfactory to GRANTOR. SECTION 11. 'Termination/Forfeiture of Franchise. Failure on the part of GRANTEE to comply ir.~ any material or substantial respect with any of the provisions, covenants, terms or conditions of this Ordinance, shall be grounds for GRANTOR. to terminate or cause GRAI\fTEE to forfeit this grant, but no such termination or forfeiture shall take effect if tl-,e reasonableness or propriety thereof is protested by GRANTEE until GRANTOR'S City Commission has held a full hearing giving GRANTEE the opportunity to present its case as to why its conduct or lack thereof should not cause a termination or forfeiture as well as the City Commission bearing evidence as to the contrary. The GRANTEE shall have three (3) months after the final deternlination of the question by the City Commission, to make good the default before a forfeiture shall result with the right in GRANTOR, at its discretion, to grant such additional time to GRANTEE for compliance as necessities in the case require. No provision of this Ordinance shall be construed i:o bar the right of GRANTOR to seek or obtain judicial relief .from a violation of any provisions of this Ordinance or franchise. Neither the existence of other remedies identified in this Ordinance, nor the exercise thereof, shall be deemed to bar or otherwise limit the right of GRANTOR to recover fines, penalties or monetary damages (except where liquidated damages are otherwise proscribed) for such violation by GRANTEE or judicial enforcement of GRANTEE'S obligations by means of specific performance, injunctive relief or mandate or any other administrative or judicial remedy at law or in equity. City of Longwood Ordinance No. 06-1801 Pagelof14 SECTION 12. Acceptance of Franchise. - GRANTEE by its acceptance hereof, which shall be filed with the GRANTOR'S Clerlc within thirty (30) days after the final passage of this Ordinance, agrees to observe, perform and keep all of the agreements, covf>nants, terms, provisions and conditions hereof to be observed, performed and kept by GRANTEE. All of the agreements,. terms, covenants and conditions hereof shall inure to and be binding upon the respective successors anal assigns of the GRANTOR and the GRANTEE. Failure of GRANTEE to timely file its acceptance of this franchise shall cause this Ordinance to be null and void at the option and election by GRANTOR upon a majority vote of the GRANTOR'S City Commission. SECTION 13. Assignment of Franchise. No assignment or transfer of the franchise rights granted hereby, shall be effective unless the GRANTEE shall have notified the GRANTOR in writing prior to the scheduled date of said assignment or transfer, and unless, after the filing of said notice, the GRANTOR shall have by ordinance approved and consented to such assignment or transfer, such approval and consent not to be unreasonably withheld.. The assigrunent or transfer of the franchise rights shall be subject to any addition,~l provisions and conditions, as agreed to between the parties, and as set forth in the ordinance approving the assignment or transfer. ~a SECTION 14. Banlcruptcy Adiudicati~~n. In the event of a final adjudication of bankruptcy of the GRANTEE, the GRANTOR shall have full power and authority to terminate, i:evoke and cancel any and all rights granted under the provisions of this Ordinance SECTION 15.1VIinor Amendments. Minor changes in the terms and conditions hereof may be made by written agreement between the GRANTOR and the GRANTEE, provided, however, that this section shall not be construed as conferring authority to n.iake changes in or modification of the provisions of this Ordinance which would be repugnant to or inconsistent with the basic grant, factors or principles underlying the terms and conditions hereof. Any amendment is subject to approval of both parties, at their sole discretion. ARTICLE II OPERATIONAL RULES SECTION 16. Compliance with city, sttate and federal law. The GRANTEE shall, at all times comply with all laws of G:IZANTOR, the state and federal government and the rules and regulations of any federal or state or administrative agency. City of Longwood Ordinance iVo. 06-1801 Page 8 of 14 SECTI®N 17. Authority for use of pubblic ways. Prior to the installation, placement, modification, relocation, or removal of any conduits, pipelines,. buildings, facilities cables or pole lines, or other structures, or the start of any other type of construction on the public ways, iu the Right-of--Way, the GRANTEE shall, pursuant to the requirements of existing or subsequently enacted GRANTOR ordinances, obtain all permits from and pay all applicable fees to, the GRANTOR. The GRANTEE will not assert the existence of any vested property rights if the GRANTOR uses a permit. Further, issuance of a permit by the GRANTOR shall not be construed by the GRANTEE as a warranty that the placement by the GRANTEE of its conduits, cable or pole lines, or the start of construction, is in compliance with any applicable rules, regulations or laws. Notwithstanding the grant to use public ways Right-of--Way, no public way shall be used by the GRANTEE if the GRANTOR determines that such use is inconsistent with the terms, conditions or provisions by which the public way Right-of--Way was created or dedicated or is being used. S~CTIOl~I 18. Conditions on Public-way ®ccumancy. (a) The GRANTEE shall use all proper and reasonable care in connection with any work which it may do in, over, unde;r or across any Right-of--Way, in seeking to prevent harm, damage or injury to persons or property therefrom. GRANTEE'S facilities shall be so locatf>d or relocated and so erected as to cause the least possible interference with traffic over said streets, avenues, alleys, ~ highways, bridges; easements and other public places, and with reasonable egress from and ingress to abutting property. The location, relocation, construction, reconstniction, extension, expansion ar.~d modification of all facilities shall be made only after the review and approval of the GRANTOR or its designees. When any portion of the GRANTOR', property is excavated or disturbed by GRANTEE in the location, relocation, construction, reconstruction, extension, expansion or modification of any of its facilities, the portion of the GRANTOR' S property so excavated or disturbed shall, within a period no longer than twenty (20) days but as early as practicable after the commencement of such excavation, or disturbance, unless a longer period is approved in writing on demand by the GRANTOR, be restored by the GRANTEE at its sole expense and in as good or better condition as it was at the time of such excavation or disturbance. The GRANTEE shall, to the satisfaction of the GRANTOR, maintain any repairs it makes pursuant to this section for a period of one year. following the date of such repair. In addition, such work shall be done only in the manner and pursuant to the regulations established by the ordinances of the GRANTOR or as the GRANTOR may more specifically require in accordance with sound engineering and construction practices,. as the GRANTOR'S consultants may provide. Upon failure of GRANTEE to do so after twenty (20) days notice in writing shall have been given to said GRANTEE by GRANTOR, the GRANTOR may repair such portion of the GRANTOR'S property that inay have been excavated or disturbed by GRANTEE, and the cost of same shall be paid by GRANTEE. Failure of payment within thirty (30) days of submittal of a statement for said costs shall City of Longwood Ordinance No. 06-1801 Page 9 of 14 constitute a default of this Ordinance. Nothing in this section shall make or be construed to make the GRANTOR liable to the GRANTEE for any cost, fee or expense in connection with the construction, reconstruction, location, relocation, extension, expansion, modification, renewal, removal, replacement, repair, use or operation of the GRANTEE'S facilities in streets, avenues, alleys, highways, .bridges, easements and other public places of the GRANTOR, made necessary by widening, paving or otherwise improving such streets, avenues, alleys, highways, bridges, easements and other public places, except that the GRANTEE shall be entitled to seek reimbursement of such costs and expenses from fluids available from sources other than the GRANTOF: as may be provided by law,. so long as such reimbursement does not reduce compensation recoverable by or to be paid to GRANTOR. (b) In the event the GRANTOR require ,the GRANTEE to adapt or conform any portion of the Utility System, or in any way to alter, temporarily or permanently relocate or to change any portion of same to enable GRANTOR'S use of the Right-of--Way, the GRANTEE shall bear the expense of such change and for any loss, cost or expense caused by or arising out of such change, alteration or relocation. Except in an emergency,. thy, GRANTEE shall within (30) days after receipt of written notice from the GRAI`JTOR, shall within a time frame that will not cause an unreasonable delay of any project adjust, alter; remove or relocate at GRANTEE'S own cost. and expense any portion of the Utility System in the event the GRANTOR determines that such adjustment, alteration removal or relocation is necessary or if same unreasonably interferes with the convenient, safe or continuous use or the maintenance, improvement, extension or expansion of any Right-of--Way in the City. Any dispute over what constitutes "unreasonable delay" shall be determined, by the City Administrator or his/her designee. In the event such removal, adjustment, alteration or relocation is incidental to work to be done by the City on a City roadway, sucl.i notice shall be .given at the same time as the contract for the work is advertised or thirty (30) days prior to the commencement of such work by the GRANTOR. In the event such a contingency occurs and the company fails to cause the aforementioned adjustment, alteration, removal or relocation as required herein... the GRANTOR may impose a fine of up to $100 per day until the adjustment, alteration, removal or relocation commences, to be paid on a monthly basis until said fine stops. Failure to timely pay shall constitute a default under this Ordinance.. The GRANTOR shall provide the GRANTEE with a notice of such removal or relocation and order as provided for in F. § 337.404, or any subsequently enacted applicable law of the state; in the event it intends to charge the GRANTEE for the cost of expense of removing such portion of the system pursuant to this chapter. (c) The GRANTEE shall maintain and operate all parts of the Utility System in good, safe and operable condition and shall at all times adhere to the requirements of the P5C and/or other applicable jurisdiction(s) for the provision of utility services in the GRANTOR. City of Longwood Ordinance No. 06-1801 Page 10 o~f 14 ~ (d) Whenever, in case of fire or other disaster, it becomes necessary, in reasonable judgment of the GRANTOR, to relocate, remove or damage any of the GRANTEE'S facilities, no charge shall be made by the GRANTEE against the GRANTOR for restoration and repair reasonably necessary under the circumstances. The GRANTOR shall endeavor to avoid or limit damage and to advise and coordinate efforts with GRANTEE to the extent necessary under the circumstances. SEC'I'I®N 19. Above Ground Pronertiies to be Landscaped. All Properties (excluding its business office facility, and individual consumers' meters) whether existing or new, and installed above ground, shall be landscaped or otherwise screened from view from the public Right-of-Way and from any residential property. Existing Properties shall have six (6) months from the effective date of this Ordinance to come into compliance with respect to landscaping. SECTI®N 20. Correction of Defects in System: Breaclh by GRAN'T'EE. If GRANTEE violates any of the terms of this Ordinance or any of the rules and regulations as may hereafter be from tune to tirne lawfully adopted, or any provisions of the franchise agreement, the GRANTOR shall promptly give the GRANTEE written notice of the violation, breach, default or nonannpliance. The GRANTEE shall within thirty (30) days o:Ethe date of written notice from the GRANTOR, unless a shorter time is otherwise provided herein, substantially undertake and promptly correct such default, breach, violation or noncompliance and certify the same to the GRANTOR. In the event that the GRANTEE fails to substantially undertake such corrective action within thirty (30) days of the date of such written notice, unless a shorter time is otherwise provided herein, and promptly complete the corrective action, the GRANTOR may, notwithsta~iding any other remedies provided for in this chapter; or otherwise available under law; (1) To complete the corrective action., together with all costs and expenses incurred by the GRANTOR. (2) Make such correction itself and charge the cost of the same to the GRANTEE and/or (3) Impose a fine of $100.00 per day for each day following the cure date ghat GRAr1TEE fails to complete the corrective action and collect the fine from any financial performance instrument posted by the GRANTEE or as otherwise may be allowed by law; arcd/or (4) Terminate the franchise; and/or For a material breach of this Ordinance, in addition to the right to seek specific performance anal injunctive relief against GRANTEE, recover a civil penalty of up to City of Longiwood Ordinance No. 06-1801 Page 11 of 14 $1,000.00 per day for each day following the cure date that GRANTEE fails to complete the corrective action, together with all costs and expenses incurred by the GRANTOR. SECTION 2I. Communications with 1<Zegulatorv Agencies. (a) Copies of all petitions, applications, ~;onimunications and reports submitted by GRANTEE to the PSC or any other state or i'ederal regulatory commission or agency having jurisdiction in respect to any matters affecting construction and occupancy of the Utility System in the GRANTOR'S Right-of--Way shall, if requested by the GRANTOR, be filed with the GRANTOR. Copies of responses or other communications from the regulatory agencies to GRANTEE likewise shall be filed with the GRANTOR. (b) Copies of all certificates of approval issued by the PSC of any other state or regulatory conunission or agency having jurisdiction of construction or operation of the system shall, if :requested by the GRANTOR, be filed with the GRANTOR and the information supplemented within .forty-five (45) days after modification, renewal and/or revocation of any such certificate(s). SECTIOhi 22. Venue. Any legal action arising out of this Ordinance shall be in the Seminole County Circuit Court. SECTION 23. Attorney's Fees The prevailing party. in any litigation arising out of: this Ordinance shall be awarded reasonable attorney and paralegal fees and costs., including on appeal of any action. SECTION 24. Confidentiality. The GRANTOR shall keep all documents and information required to be disclosed by GRANTEE confidential, as provided herein, e};cept as otherwise required by state law, including the pub is records law 6.286.011 F.S. SECTIOItil 25. Effective. Date. This Ordinance shall take effect upon the first day of the first full calendar month following the date upon which the GRANTEE files its acceptance with GRANTOR. SECTION 26. Severahility. If any section or portion of a section of this Ordinance proves to be invalid, unlawful; or unconstitutional, it shall not be held to impair the validity, force, or effect of any other section or part of a section of the Ordinance. City of Longwood Ordinance No. 06-1801 Page 12 oi' 14 SECTION 27. Conflicts. This Ordinance shall control over any ordinances or parts of ordinances in conflict herewith. SECT>[ON 28. Codification. It is the intention of the City Conunission of the City of Longwood, Florida, and it is hereby ordained that the provisions of this Ordi~.iance shall become and be made a part. of the Code of Ordinances of the City of Longwood, Florida; that the sections of this Ordinance may be renumbered or relettered to accomplish such intention; the word "Ordinance" may be changed to ``Section. "Article or other appropriate word. FIRST' READING: r-~ 1 / 7, ZUU(o SECOND READING: 1``~a ~ . 2 ~o(P ~J, PASSED AND ADOPTED THIS 1 _ DAY OF a , A.D., 2006. CI'CY OF LONGV6~OOD FLORIDA . i_ _ ~--~Fel~m ayor ATTEST; Sarah IVI. I~irus, C1VtC, City Clerflc Apprct~ed as to forrrn and legality for the use and re?iance of the City of Longwood, Florida onLy_. w y..r- a f~.. Richard S. Taylor, Jr., City Att rney City of Longwood Ordinance No. 06-1801 Page 13 ot` 14 ~ ACCEPTANCE B4' :FItANC1EIISEE The foregoing City of Longwood Ordinance No. 06-1801 and the franchise provided for therein and all,the terms and conditions thereof :are hereby accepted., approved and agreed to this ~ i day of J r/ ~ FRANC>F[ISEE: Compan3~ Name: Florida Public Utilities Company By: f Signature of owner or Authorized Agent r Print Name: • ~ ' 1 ~ City of Longwood Ordinance No. 06-1801 Page 14 01' 14