R26-037 RESOLUTION NO. R26-037
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOYNTON
2 BEACH, FLORIDA, APPROVING A FRANCHISE AGREEMENT BETWEEN
3 THE CITY AND FLORIDA PUBLIC UTILITIES COMPANY; AND FOR ALL
4 OTHER PURPOSES.
5
6 WHEREAS, the City owns and/or exercises control over the City's Rights-of-way; and
7 WHEREAS, Florida Public Utilities Company ("Company") has requested permission from
8 the City to erect, construct, operate, and maintain a gas system; to import, transport, sell and
9 distribute Gas within the City; and for these purposes to establish facilities and equipment and to
10 lay and maintain gas mains, service pipes, and any other appurtenances as are used or useful in
11 the sale, transportation and distribution of Gas in and along the City's Rights-of-way; and
12 WHEREAS, the City's Rights-of-way to be used by the Company are public properties
13 acquired and maintained by the City at the expense of the City's taxpayers, and the right to use
14 the City's Rights-of-way is a property right without which the Company would be required to
15 invest capital and incur property acquisition costs; and
16 WHEREAS, the City desires to ensure that the City's Rights-of-way used by the Company
17 are promptly restored to a safe and secure condition to protect the health, safety, and welfare of
18 the citizens and residents of the City; and
19 WHEREAS, state statutes and City ordinances authorize the City to grant a franchise for
20 the purposes set forth herein; and
21 WHEREAS, the City finds that it is in the public interest and advances the health, safety,
22 and welfare of the citizens and residents of the City to enter into this Franchise Agreement with
23 the Company; and
24 WHEREAS, the City Commission, upon the recommendation of staff, has deemed it in the
25 best interests of the City's citizens and residents to approve a Franchise Agreement between the
26 City and Florida Public Utilities Company.
27
28 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF BOYNTON
29 BEACH, FLORIDA, THAT:
30 SECTION 1. The foregoing "Whereas" clauses are hereby ratified and confirmed as
RESOLUTION NO. R26-037
31 being true and correct and are hereby made a specific part of this Resolution upon adoption.
32 SECTION 2. The City Commission of the City of Boynton Beach, Florida, does hereby
33 approve a Franchise Agreement between the City and Florida Public Utilities Company (the
34 "Agreement"), in form and substance similar to that attached as Exhibit A.
35 SECTION 3. The City Commission of the City of Boynton Beach, Florida, hereby
36 authorizes the Mayor to execute the Agreement. The Mayor is further authorized to execute any
37 ancillary documents required under the Agreement or necessary to accomplish the purposes of
38 the Agreement, including any term extensions as provided in the Agreement, provided such
39 documents do not modify the financial terms or material terms.
40 SECTION 4. The City Clerk shall retain the fully executed Agreement as a public record
41 of the City. A copy of the fully executed Agreement shall be provided to Gail Mootz to forward
42 to the Company.
43 SECTION 5. This Resolution shall take effect in accordance with the law.
44 [SIGNATURES ON THE FOLLOWING PAGE]
45
RESOLUTION NO. R26-037
46 PASSED AND ADOPTED this day ofY' `, 2026.
47 CITY OF BOYNTON BEACH, FLORIDA
48 YES NO
49 Mayor- Rebecca Shelton ✓
50
51 Commissioner- Mack McCray
52
53 Commissioner-Angela Cruz
54 \ CC.`C•c . c -
55 y -Thomas Turkin
56
57 Commissioner-Aimee Kelley
58
59 VOTE 5-0
60 ATTEST:
61
62
63 Tammy Star zione, CM Rebecca Shelton
64 Deputy City Clerk Mayor
65
66 APPROVED AS TO FORM:
67 (Corporate Seal)
68 G4/
69
70 Shawna G. Lamb
71 City Attorney
FRANCHISE AGREEMENT BETWEEN THE CITY OF BOYNTON BEACH AND
FLORIDA PUBLIC UTILITIES COMPANY
This Franchise Agreement is made as of this day of , 202', by
and between Florida Public Utilities Company, a Florida Corporation with a principal address at
500 Energy Lane, Dover, DE 19901, hereinafter referred to as "Company," and the City of
Boynton Beach,a municipal corporation organized and existing under the laws of Florida, with a
business address of 100 East Ocean Avenue, Boynton Beach, Florida 33435, hereinafter referred
to as"City."
RECITALS
WHEREAS, the City owns and/or exercises control over the City's Rights-of-way (as
defined herein);and
WHEREAS, Company has requested permission from the City to erect, construct,
operate, and maintain a gas system; to import, transport, sell and distribute Gas (as defined
herein) within the City; and for these purposes to establish facilities and equipment and to lay
and maintain gas mains, service pipes, and any other appurtenances as are used or useful in the
sale,transportation and distribution of Gas in and along the City's Rights-of-way;and
WHEREAS, the City's Rights-of-way to be used by the Company are public properties
acquired and maintained by the City at the expense of the City's taxpayers, and the right to use
the City's Rights-of-way is a property right without which the Company would be required to
invest capital and incur property acquisition costs; and
WHEREAS, the City desires to ensure that the City's Rights-of-way used by the
Company are promptly restored to a safe and secure condition to protect the health, safety, and
welfare of the citizens and residents of the City;and
WHEREAS, state statutes and City ordinances authorize the City to grant a franchise for
the purposes set forth herein; and
WHEREAS, the City finds that it is in the public interest and advances the health, safety,
and welfare of the citizens and residents of the City to enter into this Franchise Agreement (as
defined herein)with the Company.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, and
for other valuable consideration received, the receipt and sufficiency of which are hereby
acknowledged,the parties agree as follows:
Franchise Agreement—Florida Public Utilities Company
AGREEMENT
1. Definitions. For the purposes of this Franchise Agreement (as defined herein), the
following terms, phrases, words, and their derivatives shall have the meaning given
herein. When not inconsistent with context, words used in the present tense include
the future, words in the plural include the singular, and words in the singular include
the plural.
A. "Additional City Requirements" means any changes, amendments or
modifications to the Current Ordinances or any additional or new rules,
regulations, ordinances, or future exercises of the City's police power or
other City actions, including, without limitation, any rules, regulations or
ordinances related to deregulation of any aspect of the Gas trade.
B. "Business Day" means a day other than a Saturday or Sunday or a day on
which commercial banks located within the City are closed or a day that
the City observes as a holiday.
C. "City" shall mean the City of Boynton Beach, Florida, a municipal
corporation organized under the laws of the State of Florida.
D. "City Clerk"means the Person appointed, hired or otherwise designated or
charged by the City to accept, organize, maintain and/or keep records of
the City.
E. "City Engineer" means the Person appointed, hired or otherwise
designated or charged by the City to perform professional and technical
engineering duties for the City which may include, by example,
performing supervisory and administrative duties in planning and
coordinating the operation of engineering services on behalf of the City.
F. "City Limits" shall mean the incorporated limits of the City, including any
such territory as may be hereafter added or annexed to, or consolidated
with,the City.
G. "City Manager" means the Person appointed, hired or otherwise
designated or charged by the City to implement municipal policy and/or
otherwise serve as the administrator for the City in connection with day-
to-day functions, or, in the absence of such individual, the local governing
body.
H. "City's Rights-of-way" shall mean all rights-of-way, streets, roads, lanes,
avenues, boulevards, alleys, highways, waterways, bridges, sidewalks,
thoroughfares, easements and other ways or places of whatever nature,
now or hereafter existing, that are owned by the City or that are located
within the City Limits and are publicly held or dedicated for public use,
including for vehicular or pedestrian movement, and also to include the
space at, or below the right-of-way places.
Franchise Agreement—Florida Public Utilities Company 2
I. "Commission" shall mean the Florida Public Service Commission or any
successor agency.
J. "Comnanv" shall mean Florida Public Utilities Company, a Florida
corporation, its successors, and assigns.
K. "Customer" shall mean any Person supplied with Gas service by the
Company within the City Limits.
L. "Distribution System"shall mean any and all transmission pipelines, main
pipelines, and service pipelines, together with all necessary and desirable
appurtenances, including, but not limited to, all tubes, traps, vents, vaults,
manholes, meters, gauges, regulators, valves, conduits, attachments, and
structures, as are used or useful in the sale, importation, distribution,
transportation, transmission, or delivery of Gas and as are located within
the City Limits.
M. "Effective Date" shall mean the date this Franchise Agreement becomes
effective as described in Section 3 below.
N. "Expenses" means court costs, including taxed and untaxed costs, and
reasonable attorneys' fees, whether suit be brought or not, and includes,
without limitation, expenses incurred in any appellate or bankruptcy
proceeding (including reasonable legal and investigative expenses).
0. "Franchise" or"Franchise Agreement" shall mean this Agreement as duly
executed by the City and Company.
P. "Franchise Fee" shall mean an amount equal to 6 percent (6%) of the
Company's Gross Revenues, less any adjustments for uncollectable
accounts as determined by the Company in its reasonable discretion.
Q. "Gas" shall mean natural gas and/or manufactured gas and/or a mixture of
gases, including renewable natural gas and hydrogen gas, that 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").
R. "Gross Revenues" shall mean all revenues received by the Company from
any "residential" and "commercial" Customer, excluding deposits, pre-
payments until they are earned, turn on/off charges, meter installation
charges, and any other revenue not generated directly and solely from the
sale, distribution, transportation, transmission, and delivery of Gas. Gross
Revenues shall exclude (i) revenues from customers of "interruptible,"
"industrial," and "other" gas service, as designated by the Company
consistent with the Tariff, until and unless (1)the City imposes a franchise
fee or utility tax on the "interruptible,""industrial,"and "other"customers
of all competing utility services in the City Limits, including, without
Franchise Agreement—Florida Public Utilities Company 3
limitation, the imposition of franchise fees or utility taxes on all grades of
fuel oils or gases used for such customers, and (2) the imposed fee or tax
is relatively equal to the Franchise Fee payable hereunder plus utility taxes
levied on Gas pursuant to statute and/or rule, and (ii) revenues from sales
for resale between public utilities, municipal gas utilities, and gas districts
or any combination thereof.
S. "Person" shall mean any individual, firm, partnership, estate, corporation,
company, or other entity, including, but not limited to, any government
entity.
T. "Tariff'shall mean the Company's then effective natural gas service tariff
as filed with and approved by the Commission.
2. Grant of Authority. The City hereby grants to the Company the non-exclusive
franchise for the provision of natural gas service within the City Limits. The City
grants to the Company the non-exclusive right, privilege, and franchise to lay, erect,
construct, operate, and maintain a Distribution System in, on or under any of the
City's Rights-of-way, as they now exist or may be hereafter constructed, opened, laid
out or extended within the City Limits. In the event that any of the City's Rights-of-
way are closed, vacated, or otherwise abandoned, the City shall make a good faith
effort to provide or cause to be provided alternative Rights-of-way or easements to
the Company, pursuant to Rights-of-way agreements, or easement agreements for
public or private non-Rights-of-way property, for the Distribution System or any
portion thereof that is affected by such closure, vacation or abandonment.
3. Term.
A. This Franchise shall take effect on the first day of the month following the
final passage of this Franchise Agreement, as required by applicable law,
and upon the Company's filing of the acceptance with the City Clerk (the
"Effective Date"). Except as provided in Section 4 herein, the term of this
Franchise shall be fifteen (15) years from the Effective Date (the "Initial
Term"); provided however, that there will be an option to renew the
Franchise for one (1) fifteen (15)year renewal term(the "Renewal Term")
if the Company provides the City with written notice, no less than one
hundred eighty (180) days prior to the expiration of the Initial Term and
the City provides written notice of acceptance of the Renewal Term at
least thirty (30) days prior to the expiration of the Initial Term.
B. Unless a party provides written notice pursuant to Section 25 hereof to the
other party at least thirty (30) days prior to the expiration of the Initial
Term (in the absence of an effective Renewal Term)or the Renewal Term,
as applicable, upon expiration of the Initial Term or Renewal Term, as
applicable, this Franchise Agreement shall continue on the same terms in
effect at the expiration of the Initial Term or Renewal Term, as applicable,
Franchise Agreement—Florida Public Utilities Company 4
on a month-to-month basis until terminated by the City or the Company
upon not less than thirty(30)days' written notice.
4. Default: Remedies.
A. In the event that the Company commits a material breach of any of the
material covenants, terms, and conditions of this Franchise Agreement,
other than a breach that directly or indirectly as a result of a Force Majeure
Event, the City may terminate this Franchise Agreement if the City shall
first have served the Company with a written notice setting forth in
reasonable detail all matters pertinent to such material breach and the
action the City proposes to take with respect thereto, and the Company
shall have failed within sixty (60) days after service of such notice (i) to
cure such breach or, (ii) if such cure reasonably requires more than sixty
(60) days to complete, to present a plan to the City to effect such cure and
thereafter to complete such cure pursuant to such plan within a reasonable
period of time after the City's approval of the plan. Approval of the plan
by the City shall not be unreasonably withheld, conditioned, or delayed.
B. In the event that the City commits a material breach of any of the material
covenants,terms,and conditions of this Franchise Agreement, other than a
breach that directly or indirectly as a result of a Force Majeure Event, the
Company may terminate this Franchise Agreement if the Company shall
first have served the City with a written notice setting forth in reasonable
detail all matters pertinent to such material breach and the action the
Company proposes to take with respect thereto, and the City shall have
failed within sixty (60) days after service of such notice (i) to cure such
breach or,(ii) if such cure reasonably requires more than sixty(60) days to
complete, to present a plan to the Company to effect such cure and
thereafter to complete such cure pursuant to such plan within a reasonable
period of time after the Company's approval of the plan. Approval of the
plan by the Company shall not be unreasonably withheld, conditioned, or
delayed.
C. Upon the expiration of the Initial Term or the Renewal Term, as
applicable, either party, in its sole discretion, may terminate this Franchise
Agreement without cause, subject to, and as provided in, Section 3.B.
above.
D. Upon termination of this Franchise, the Company's obligations to pay the
Franchise Fee shall terminate simultaneously therewith.
5. Non-exclusive Franchise. The right to use and occupy the City's Rights-of-ways for
the purposes set forth herein shall not be exclusive, and the City reserves the right to
grant a similar use of the City's Rights-of-ways to any other Person at any time
during the period of this Franchise, so long as such grant does not interfere with the
Company's rights granted hereunder. This Franchise shall grant the privilege of
Franchise Agreement—Florida Public Utilities Company 5
carrying on the business in all of the City or in part of the City, and, except as
provided in Section 6 below, with no promise that there will be no competition. In
the event the City grants a franchise to a competitor of the Company, the grant shall
not interfere with the Company's rights granted hereunder, including as to the
physical location of improvements, except as to matters that occur as a result of
competition.
6. Competition. As further consideration of this Franchise Agreement, the City hereby
agrees that during the term of this Franchise or any extension thereof it will not
engage in the business of selling, importing, distributing, transporting, transmitting,
or delivering Gas or other competitive product, including propane gas and liquefied
petroleum gas,or otherwise compete with the Company within the City Limits.
7. Assignment. Except as provided herein, this Franchise shall not be sold, leased,
assigned, or otherwise alienated or disposed of(each a"Transfer")unless the City has
consented to the Transfer, which consent shall not be unreasonably withheld, delayed,
or conditioned. Such consent shall be in writing, provided that in the event that the
City neither grants nor denies the consent in writing within forty-five (45) days after
the Company's written request for the consent, then the City will be deemed to have
consented to the Transfer. Notwithstanding the foregoing, the City's consent shall
not be required for any Transfers (a) by operation of law, including, without
limitation, by way of the merger or consolidation of the Company with or into any
other Person, (b) Transfers in connection with the lease or sale of all or substantially
all of the assets constituting the Distribution System, (c) Transfers to an affiliate of
the Company, or(d)the Company's grant of a security interest,pledge or mortgage of
this Franchise in connection with any loan or financing obtained, in whole or in part,
for the construction, maintenance, and/or operation of the Distribution System, or the
lender's exercise or enforcement of its rights with respect to such security interest,
pledge, or mortgage. Upon a Transfer, the Person to whom the Franchise is
transferred shall promptly file in the office of the City Clerk a duly executed
instrument reciting the fact of the Transfer, accepting the terms of the Franchise, and
agreeing to perform all the conditions thereof. Upon such filing, the transferor shall
be released of any further obligations under this Franchise Agreement without the
necessity of any further action by any Person.
8. Compliance with Applicable Laws. Subject to Section 10 below, the Company
shall abide by all reasonable rules, regulations and ordinances which the City has in
effect as of the Effective Date (collectively, the "Current Ordinances"), including,
without limitation, any now existing manuals, codes or other instruments or
documents applicable to or otherwise governing the City's Rights-of-way (if
applicable,the"Current Manual").
9. Deregulation.
A. In the event the Company or any aspect of the Gas trade, as contemplated
hereunder, is deregulated, the Company shall maintain and operate its
Distribution System and render efficient service in accordance with,
Franchise Agreement—Florida Public Utilities Company 6
subject to Section 10 below, such rules and regulations as are, or may be,
promulgated by the City.
B. Subject to Section 10 below, in the event the City has not promulgated
rules and regulations at the time of deregulation, then, the Company shall
maintain and operate its Distribution System in compliance with the rules
and regulations by which they were governed prior to deregulation until
such time as the City has had an opportunity to promulgate rules and
regulations or passes an ordinance governing those items regulated by the
Commission, governing service standards, safety standards, and quality
controls.
10. Changes to Current Ordinances: Deregulation Ordinances.
A. While recognizing the Company's need for regulatory stability and
predictability, the City retains its essential police powers to protect public
health, safety, and welfare. The Company shall comply with all Current
Ordinances and reasonable Additional City Requirements adopted after
the Effective Date,provided that:
i. If the Company believes any Additional City Requirement creates an
undue burden, it may request relief by submitting written notice to the
City detailing specific concerns. Such notice must include:
a. The specific Additional City Requirement at issue;
b. Document evidence of material adverse impacts.
ii. The City will consider in good faith any demonstrable evidence that an
Additional City Requirement:
a. is inconsistent with or are preempted by Florida law or any
rules, regulations, or other requirements of the Commission,
Florida Department of Transportation, or the U.S. Department
of Transportation;
b. will materially impair the safety or functionality of the
Distribution System as constructed or prevent or materially
impair the Company's ability to deliver Gas service to
customers in the City;
c. will have the effect of singling out the Company or is not likely
to be applied (or are not in fact applied) uniformly among all
Persons utilizing or accessing the Rights-of-way.
B. Subject to Section 10(a) above and notwithstanding anything to the
contrary contained in this Agreement, during any calendar year throughout
the term of this Agreement, the Company shall only be required to abide
Franchise Agreement—Florida Public Utilities Company 7
by or be subject to the Current Ordinances (including, if applicable, the
Current Manual) as in effect as of January 1 of that calendar year.
11. Distribution System. The Distribution System shall be erected, placed, laid, and
maintained in a manner consistent with the following:
A. The City,through its City Manager, City Engineer,or other designee, shall
have the authority, but shall not be required, to supervise all construction,
location,restoration, relocation,and installation work.
B. The Company shall provide reasonable egress from and ingress to abutting
property.
C. While allowing the functioning of the Distribution System as intended by
the Company and constructed, the Distribution System shall be located in
the City's Rights-of-ways so as not to unreasonably obstruct, disturb or
interfere, on a permanent basis, with any traffic, water flow, water pipes,
sewers, drains, catch basins, pavement, sidewalk, driveways, or any other
structures installed or any other function of said structures for the delivery
of municipal services by the City.
D. In the event of material damage to any drains, sewers, catch basins, water
pipes, pavements or other like improvements resulting solely from the acts
of the Company in erecting, placing, laying or maintaining the
Distribution System, the City shall provide written notice to the Company
describing in reasonable detail the damage to be repaired, and the
Company shall repair such damage at its sole cost and expense and within
a reasonable time after its receipt of the notice from the City to a
substantially similar condition that existed prior to the damage.
E. The Company shall give written notice of the Company's construction,
location, restoration, or relocation of the Distribution System to the City
Engineer or the City Engineer's designee, which notice will be
accompanied by plan drawings showing the proposed work. The notice
shall be submitted no less than three (3) Business Days prior to
commencement of work, except in the case of an emergency, in which
event the notice shall be submitted as soon as reasonably practicable prior
to or promptly following commencement of work, and no other
application, permit, approval, or payment to the City of any plan review,
inspection or other fees in connection therewith shall be required. As soon
as practicable, but no more than fifteen (15) Business Days after
completion of the subject work, the Company shall submit as-built
drawings to the City Engineer or the City Engineer's designee,which shall
complete the notice and approval requirement for said work.
F. In the event at any time during the period of this Franchise the City shall
lawfully elect to alter,or change the grade of the City's Rights-of-way,the
Franchise Agreement—Florida Public Utilities Company 8
Company, upon reasonable notice from the City, shall remove, relay, and
relocate any portion of the Distribution System as is necessary at the
Company's own cost and expense; provided that if the City requires that
the Company remove, disconnect, alter, relay or relocate any portion of
the Distribution System to enable any other Person to use the Rights-of-
way,as part of its permitting or approval process,the City shall require the
Person desiring or benefiting from such removal, disconnection,alteration,
relay or relocation to reimburse the Company for all losses, costs, and
expenses caused by, resulting from or arising out of such removal,
disconnection, alteration, relay or relocation.
12. Rei ht to Inspect. During the term of this Franchise Agreement, the City, through its
designated agent, shall have the authority to inspect the Distribution System at
reasonable times and upon reasonable prior notice to ensure compliance with
governing law and the Commission's regulations at the City's own cost and expense.
Notwithstanding the above, the Company shall not be required to disclose
information that contains trade secrets or is proprietary or confidential in nature, nor
disclose books and records of any affiliate.
13.Franchise Fee. The Company shall pay the Franchise Fee to the City quarterly on
January 31, April 30, July 31, and October 31 of each year during the term of this
Franchise based upon the Gross Revenues received for the immediately preceding
calendar quarter, unless otherwise agreed, commencing on the first of such dates
following the Effective Date. Franchise Fee payments shall be deemed paid on time
if post-marked within thirty (30) days after the applicable payment due date.
Delinquent amounts shall accrue interest at the default rate of 12% per annum or the
maximum rate permitted by law, whichever is higher. In the event the Company
makes any Franchise Fee payment in excess of the Franchise Fee due and owing to
the City under this Franchise Agreement or if the City is otherwise indebted to the
Company, the Company shall have the right to offset such overpayment and/or
indebtedness against future payments of the Franchise Fee
14. Other Fees and Taxes. Except as otherwise provided for herein, the Company shall
pay to the City all legally authorized fees, taxes, assessments, and costs levied,
imposed,or validly adopted by the City during the term of this Franchise Agreement,
which shall include, but are not limited to public service taxes, ad valorem taxes
(intangible, personal, real), occupational taxes, licensing fees, permitting fees,
development review fees, and inspection fees.
15. Insurance. Prior to the commencement of any work within the scope of this
Franchise Agreement, the Company shall file with the City Clerk 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 policies or evidence of
self-insurance within the coverage requirements attached hereto as Exhibit A and
incorporated herein by this reference, with the parties agreeing to review and adjust
such requirements annually or upon material change in risk exposure, with any agreed
Franchise Agreement—Florida Public Utilities Company 9
adjustments to be implemented within sixty (60)days. The coverage requirements set
forth in Exhibit A may be satisfied, in whole or in part, with self-insurance.
16.Identification of City Residents. No less than thirty (30) days prior to the Effective
Date, thereafter during the Term of this Franchise Agreement within thirty (30) days
after the Company's written request, the City shall deliver to the Company such
information (including City Limits streets and block numbers) as is needed by the
Company to determine which of its Customers are located within the City Limits. The
City shall also provide the Company notice of any property annexed into or
contracted from the City Limits since the Effective Date within thirty (30) days after
the effectiveness of any change in said City Limits. The Company shall be relieved of
any obligation to pay the Franchise Fee to the extent the City has failed to provide
information in accordance with this Section 17; provided however, once such
information is provided by the City, the Company shall pay the Franchise Fee
accordingly, and this provision does not relieve the Company from paying the
Franchise Fee concerning those Customers for which the Company has been provided
such information.
17. Reciprocal Indemnification.
A. The Company shall indemnify and hold harmless the City and its elected or
appointed officials, agents, employees, licensees, and contractors (each, a
"City Indemnitee") from and against any and all liability, claims, actions,
causes of action, suits, demands, damages, losses, costs and expenses,
including attorneys' fees and costs (collectively, "Claims") which may be
brought against or suffered, sustained, paid or incurred by any City
Indemnitee to the extent directly arising from or caused by:
i. any breach by the Company of any of the provisions of this Franchise
Agreement; or
ii. the gross negligence or willful misconduct of the Company, or any of
its employees, agents, licensees, or contractors (collectively and
individually referred to as "Company Parties") in the operation of the
Distribution System within the City Limits.
Notwithstanding the foregoing, neither the Company nor any Company
Party shall be liable under this Section for any Claims arising out of the
acts, omissions, negligence, strict liability, intentional torts, criminal acts
or error of the City or its elected or appointed officials, agents, employees,
Iicensees, contractors or subcontractors, or representatives (a "City
Party").
B. To the extent permitted by law, and subject to the limitations of sovereign
immunity, the City shall indemnify and hold harmless the Company and
its affiliates, and their respective officers, directors, stockholders,
employees, agents, licensees and contractors (each, a "Company
Franchise Agreement—Florida Public Utilities Company 10
Indemnitee") from and against any and all Claims which may be brought
against or suffered, sustained, paid or incurred by the Company or any
other Company Indemnitee to the extent arising from or otherwise caused
by:
i. any breach by the City of any of the provisions of this Franchise
Agreement; or
ii. the gross negligence or willful misconduct of the City or any City
Party.
Notwithstanding the foregoing,neither the City nor any City Party shall be
liable under this Section for any Claims arising out of the acts, omissions,
negligence, strict liability, intentional torts, criminal acts, or errors of any
Company Party.
C. Notwithstanding anything to the contrary herein contained, in no event
shall the City or the Company be liable under this Franchise Agreement,
in any way, for any reason, for any indirect, special or consequential
damages (including damages for pure economic loss, loss of profits, loss
of earnings or loss of contract),howsoever caused or contributed to.
D. Indemnification is conditioned upon the party seeking indemnification
hereunder providing written notice to the indemnifying party promptly
after the presentation to the party seeking indemnification of any such
indemnifiable claim or demand, either by suit or otherwise, or the party
seeking indemnification became aware of the claim. Notwithstanding
anything in this section, City is a municipal corporation of the State of
Florida and has sovereign immunity from certain claims under Florida
law, including Section 768.28, Florida Statutes. If City is required to
indemnify Company under this Franchise Agreement, the limitations on
tort liability under Section 768.28, Florida Statutes, shall be the applicable
limitations for City's indemnification obligations under this Franchise
Agreement, regardless of the nature or basis of the claim asserted. Except
to the extent sovereign immunity may be deemed waived by entering into
this Agreement, nothing herein is intended to serve as a waiver of
sovereign immunity by City, nor shall anything included herein be
construed as consent by City to be sued by third parties in any matter
arising out of this Agreement.
E. The provisions of this section shall survive the expiration or termination of
this Franchise Agreement.
18.Records. The Company shall maintain accounts and records in a manner consistent
with Section 368.108 of the Florida Statutes and Chapter 25-7 of the Florida
Administrative Code, and such that the Gross Revenues within the City Limits are
able to be calculated. Upon the City's good faith, reasonable request, the Company
Franchise Agreement—Florida Public Utilities Company 11
shall provide to the City copies of account information and records relevant to this
Franchise Agreement.
19. Governing Law and Venue; Jun. Waiver. This Franchise Agreement is made
pursuant to and shall be governed by and construed in accordance with the laws of the
State of Florida, without regard to the conflict of laws principles thereof. The parties
hereby irrevocably submit to the exclusive jurisdiction of the courts in the State of
Florida (state or federal), with venue in Palm Beach County, for any suit or legal
proceeding related to this Franchise Agreement and agree that all claims in respect of
such dispute or proceeding shall be heard and determined in such courts. The parties
hereby irrevocably waive, to the fullest extent permitted by applicable law, any
objection that they may have to the venue of such dispute brought in such court or
any defense of inconvenient forum for the maintenance of such dispute. THE
PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY,
AFTER CAREFUL CONSIDERATION AND AN OPPORTUNITY TO SEEK
LEGAL ADVICE, WAIVE THEIR RIGHT TO HAVE A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION ARISING OUT OF OR IN ANY WAY
CONNECTED WITH ANY OF THE PROVISIONS OF OR MATTERS RELATED
TO THIS FRANCHISE.
20. Entire Agreement. This Franchise Agreement and any additional or supplementary
exhibits or schedules incorporated herein by specific reference contain the entire
understanding of, and all the terms and conditions agreed upon by, the parties hereto
regarding the subject matter of this Franchise Agreement, and no other prior
agreement, oral or otherwise, or any part thereof shall have any validity or bind any
of the parties thereto.
21.Attorneys' Fees and Expenses. Except as otherwise provided by law, each party
shall bear its own attorney's fees and costs in connection with any legal action or
dispute arising under this Franchise Agreement.
22. Notices. All notices and other communications under this Franchise shall be in
writing and shall be deemed given when (a) delivered personally to that party, (b)
sent by electronic submission with a written confirmation from the receiving party
confirming receipt of the electronic submission, (c) on the fifth (5th) Business Day
after being mailed by certified mail (postage prepaid and return receipt requested) to
that party at the address for that party set forth below, or (d) on the day delivered by
Federal Express or any similar express delivery service for delivery to that party at
that address. All notices shall be addressed as follows:
If to Company: Florida Public Utilities Company
105 6th Street NW
Winter Haven, Florida 33881
Attention:Director,Natural Gas Operations
Email: kmoore@chpk.com
with a copy to: Florida Public Utilities Company
Franchise Agreement—Florida Public Utilities Company 12
1641 Worthington Road, Suite 220
West Palm Beach, Florida 33409
Attention: Director of Regulatory Affairs
Email: jbaugh@chpk.com
with a copy to: Legal Department
Chesapeake Utilities Corporation
500 Energy Lane
Dover,Delaware 19901
Attention: William O'Brien
Email: LekalTeam-CPK,a chok.com
If to the City: Daniel Dugger,City Manager
City of Boynton Beach
P.O.Box 310
Telephone: (561) 742-6010
Facsimile: (561) 742-6090
with a copy to: Shawna G.Lamb,City Attorney
City of Boynton Beach
P.O. Box 310
Telephone: (561) 742-6010
Facsimile: (561)742-6090
Notices and communications delivered to persons designated to receive copies
shall not be effective notice. Any party may change its address for notices under
this Franchise at any time by giving the other parties notice of such change
delivered in conformity with this Section 23.
23. Force Majeure. No party shall be liable or responsible to the other party, or be
deemed to have defaulted under or breached this Franchise Agreement, for any
failure or delay in fulfilling or performing any term of this Franchise Agreement
(except for any obligations to make payments to the other party hereunder unless
the ability to determine the amount of or make such payment is impacted by a
Force Majeure Event (as defined below)), when and to the extent such failure or
delay is caused by or results from acts, occurrences or events beyond the impacted
party's ("Impacted Party") reasonable control (each a "Force Majeure Event"),
including, without limitation, the following : (a) acts of God or nature; (b) flood,
fire, earthquake, explosion or other casualty; (c) other potential disasters or
catastrophes including epidemics, pandemics and quarantines, (d) war, invasion,
hostilities (whether war is declared or not), terrorist threats or acts, riot, or other
civil unrest; (e)government order, law, order (including judicial order)or actions;
(f) embargoes, or blockades in effect on or after the Effective Date; (0 national or
regional emergency; (g) strikes, labor stoppages or slowdowns, labor disputes, or
other industrial disturbances; and (h) telecommunication breakdowns, power
Franchise Agreement—Florida Public Utilities Company 13
outages or shortages, lack of warehouse or storage space, inadequate
transportation services, or inability or delay in obtaining supplies of adequate or
suitable materials. The Impacted Party shall give notice within ten (10) days (or
as promptly thereafter as reasonably practicable) of the Force Majeure Event to
the other party, stating the period of time the occurrence is expected to continue if
reasonably determinable. The Impacted Party shall use commercially reasonable
efforts to resume performance as soon as reasonably practicable after the
termination of the Force Majeure Event. In no event shall any failure or delay in
performance or default by Company due to a Force Majeure Event constitute
grounds for termination of this Franchise.
24. Non-waiver. The failure of any party to insist in any one or more instances upon
the strict performance of any one or more of the terms or provisions of this
Franchise Agreement shall not be construed as a waiver or relinquishment for
future of any such term or provision,and the same shall continue in full force and
effect. No waiver or relinquishment shall be deemed to have been made by either
party unless said waiver or relinquishment is in writing and signed by both
parties.
25. Severability. If any section, subsection, sentence, clause, phrase, or portion of
this Franchise Agreement is for any reason held invalid, unenforceable, or
unconstitutional by any court of a competent jurisdiction, such subsection,
sentence, clause, phrase, or portion shall be deemed a separate, distinct and
independent provision and such holdings shall not affect the validity of the
remaining portions hereof.
26. Scrivener's Error. Sections of this Franchise Agreement may be renumbered or
relettered, and the correction of typographical and/or scrivener's errors which do
not affect the intent may be authorized by the City Manager or his designee,
without need for a public hearing, by filing a corrected or recodified copy of same
with the City Clerk.
27. Ordinances Repealed. All ordinances and parts of ordinances in conflict or
inconsistent with the provisions of this Franchise Agreement, including any
previous franchise agreements between the City and the Company (and any
ordinances approving the same), are hereby repealed as of the Effective Date and
replaced by this Franchise Agreement.
28. Anti-Human Trafficking. On or before the Effective Date of this Franchise
Agreement, Company shall provide City with an affidavit attesting that the
Company does not use coercion for labor or services, in accordance with Section
787.06(13),Florida Statutes.
29. Prohibited Telecommunications Equipment. Company represents and certifies
that Company and all subcontractors do not use any equipment, system, or service
that uses covered telecommunications equipment or services as a substantial or
Franchise Agreement—Florida Public Utilities Company 14
essential component of any system, or as critical technology as part of any
system, as such terms are used in 48 CFR §§ 52.204-24 through 52.204-26.
Company represents and certifies that Company and all subcontractors shall not
provide or use such covered telecommunications equipment, system, or services
during the Term.
30. Discriminatory Vendor and Scrutinized Companies Lists: Countries of
Concern. Company represents that it has not been placed on the "discriminatory
vendor list" as provided in Section 287.134, Florida Statutes, and that it is not a
"scrutinized company" pursuant to Sections 215.473 or 215.4725, Florida
Statutes. Company represents and certifies that it is not, and for the duration of the
Term will not be, ineligible to contract with City on any of the grounds stated in
Section 287.135, Florida Statutes. Company represents that it is, and for the
duration of the Term will remain, in compliance with Section 286.101, Florida
Statutes.
31. Public Entity Crime Act. Company represents that it is familiar with the
requirements and prohibitions under the Public Entity Crime Act, Section
287.133, Florida Statutes, and represents that its entry into this Franchise
Agreement will not violate that Act. Company further represents that there has
been no determination that it committed a "public entity crime" as defined by
Section 287.133, Florida Statutes, and that it has not been formally charged with
committing an act defined as a "public entity crime" regardless of the amount of
money involved or whether Company has been placed on the convicted vendor
list.
32. Verification of Employment Eligibility. Company represents that Company and
each subcontractor have registered with and use the E-Verify system maintained
by the United States Department of Homeland Security to verify the work
authorization status of all newly hired employees in compliance with the
requirements of Section 448.095, Florida Statutes, and that entry into this
Franchise Agreement will not violate that statute. If Company violates this
section, City may immediately terminate this Franchise Agreement for cause and
Company shall be liable for all costs incurred by City due to the termination.
33. Entities of Foreign Concern. The provisions of this section apply only if
Company or any subcontractor will have access to an individual's personal
identifying information under this Franchise Agreement, including, but not
limited to Section 17. Company represents and certifies: (i) Company is not
owned by the government of a foreign country of concern; (ii) the government of
a foreign country of concern does not have a controlling interest in Company; and
(iii) Company is not organized under the laws of and does not have its principal
place of business in, a foreign country of concern. On or before the Effective
Date, Company and any subcontractor that will have access to personal
identifying information shall submit to City executed affidavit(s) under penalty of
perjury, in a form approved by City attesting that the entity does not meet any of
Franchise Agreement—Florida Public Utilities Company 15
the criteria in Section 287.138(2), Florida Statutes. Terms used in this section that
are not otherwise defined in this Agreement shall have the meanings ascribed to
such terms in Section 287.138, Florida Statutes.
34. Public Records. The City of Boynton Beach is a public agency subject to Chapter
119, Florida Statutes. If applicable, the Company shall comply with the
requirements of Chapter 119, Florida Statutes, with respect to any documents,
papers, and records made or received by Company in connection with this
Franchise Agreement. If the Company has questions regarding the application of
Chapter 119, Florida statutes, to the Company's duty to provide public records
relating to this Franchise Agreement,contact the custodian of public records, City
Clerk's Office, 100 East Ocean Avenue, Boynton Beach, Florida 33435, 561-742-
6060, CityClerk@bbfl.us.
IN WITNESS OF THE FOREGOING,the parties have set their hands and sealed the
day and year first written above.
CITY OF BOYNTON BEACH, FLORIDA PUBLIC UTILITIES
FLORIDA COMPANY
Rebecca Shelton, Mayor (Signature)
LG 71/46cEc?itt
Print Name of Authorized Official
AVP-- 17-ORJ ,4 2P r a-'
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Approved as to Form:
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Shawna G. Lamb,City Attorney (Corporate Seal)
Attested/Authenticated: TO,,``�
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Tammy Sta lone, ty-Cty Clerk S�A�pg_ovikp
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Franchise Agreement—Florida Public Utilities Company 16 �"'
Exhibit A
Insurance Requirements
The City of Boynton Beach
( DIVISION OF RISK MANAGEMENT
100 E.Ocean Avenue
(r
Boynton Beach,Florida 33435
(P): 561-742-6271 1 (F):561-742-6274
www.bovnton-beach.orq
VENDOR INSURANCE REQUIREMENTS—PROCUREMENT
1. JNSURANCE REQUIREMENTS:
The successful bidder/contractor/firm or individual entering a resulting contract with the City
shall provide, pay for and maintain in full force and affect at all times during the services to be
performed the applicable insurance as set forth below. (Proof that insurance meets the City's
requirements must be provided prior to providing services to the City of Boynton Beach.)
Commercial General Liability
Coverage must be afforded under a Commercial General Liability policy with limits not less
than:
• $5,000,000 each occurrence
• $10,000,000 annual aggregate for Bodily Injury, Personal Injury, and Advertising Injury
• $5,000,000 per occurrence for Property Damage
• $5,000,000 each occurrence and$10,000,000 project aggregate for Products and
Completed Operations
Policy must include coverage for Contractual Liability, Independent Contractors.
Business Automobile Liability
Coverage must be afforded for all Owned, Hired, Scheduled, and Non-Owned vehicles for
Bodily
Injury and Property Damage in an amount not less than $1,000,000 combined single limit each
accident. If the Contractor does not own vehicles, the Contractor shall maintain coverage for
Hired and Non-Owned Auto Liability, which may be satisfied by way of endorsement to the
Commercial General Liability policy or separate Business Auto Liability policy.
Professional Liability/Malpractice
Coverage must be afforded under a Professional/Allied Health/Malpractice Liability policy with
limits not less than:
• $5,000,000 each occurrence
• $10,000,000 annual aggregate
Franchise Agreement—Florida Public Utilities Company 17
Workers' Compensation and Employer's Liability
Coverage must be afforded per Chapter 440, Florida Statutes. Any contractor performing work
on behalf of the City must provide Workers' Compensation insurance of at least the statutory
requirements in addition to Employer's Liability in the amount not less than $1,000,000 per
accident. Exceptions and exemptions will be allowed by the City's Risk Management
Department, if they are in accordance with Florida Statute.
The Contractor and its insurance carrier waive all subrogation rights against the City, a political
subdivision of the State of Florida, its officials, employees, and volunteers for all losses or
damages. The City requires the policy to be endorsed with WC00 03 13 Waiver of our Right to
Recover from others or equivalent.
Contractor must be in compliance with all applicable State and federal workers' compensation
laws, including the U.S. Longshore and Harbor Workers' Compensation Act or Jones Act, if
applicable.
For any Contractor who has exempt status as an individual, the City requires proof of Workers'
Compensation insurance coverage for that Contractor's employees, leased employees,
volunteers,and any workers performing work in execution of this Contract.
If the Contractor has applied for a workers' compensation exemption, the City does not
recognize this exemption to extend to the employees of the Contractor. The Contractor is
required to provide proof of coverage for their employees, leased employees, volunteers and any
workers performing work in execution of this Contract. This applies to all contractors including
but not limited to the construction industry.
Contractors Pollution Liability Coverage
For sudden and gradual occurrences and in an amount not less than $5,000,000 per claim arising
out of this Contract, including but not limited to, all hazardous materials identified under the
Contract.
Contractor must keep insurance in force until the third anniversary of expiration of this Contract
or the third anniversary of acceptance of work by the City.
Property Coverage(Builder's Risk)
Coverage must be afforded in an amount not less than 100% of the total project cost, including
soft costs, with a deductible of no more than $25,000 each claim. Coverage form shall include,
but not be limited to:
• All Risk Coverage including Flood and Windstorm with no coinsurance clause
• Guaranteed policy extension provision
• Waiver of Occupancy Clause Endorsement, which will enable the City to occupy the facility
under construction/renovation during the activity
• Storage and transport of materials, equipment, supplies of any kind whatsoever to be used on
or incidental to the project
• Equipment Breakdown for cold testing of all mechanized, pressurized, or electrical
Franchise Agreement—Florida Public Utilities Company 18
equipment
For installation of property and/or equipment, Contractor must provide Builder's Risk
Installation insurance to include coverage for materials or equipment stored at the project site,
while in transit, or while stored at a temporary location. Coverage limit must be no less than
replacement cost.
This policy shall insure the interests of the owner, contractor, and subcontractors in the property
against all risk of physical loss and damage, and name the City as a loss payee. This insurance
shall remain in effect until the work is completed and the property has been accepted by the City.
Insurance Certificate Requirements
a. The Contractor shall provide the City with valid Certificates of Insurance (binders re
unacceptable) no later than thirty (30) days prior to the start of work contemplated in this
Contract.
b. The Contractor shall provide a Certificate of Insurance to the City with a thirty (30) day
notice of cancellation;ten(10)days' notice if cancellation is for nonpayment of premium.
c. In the event that the insurer is unable to accommodate the cancellation notice requirement, it
shall be the responsibility of the Contractor to provide the proper notice. Such notification
will be in writing by registered mail, return receipt requested, and addressed to the certificate
holder.
d. In the event the Contract term goes beyond the expiration date of the insurance policy, the
Contractor shall provide the City with an updated Certificate of Insurance no later than ten
(10) days prior to the expiratio
e. n of the insurance currently in effect.The City reserves the right to suspend the Contract until
this requirement is met.
f. The certificate shall indicate if coverage is provided under a claims-made or occurrence
form. If any coverage is provided on a claims-made form, the certificate will show a
retroactive date,which should be the same date of the initial contract or prior.
g. The City shall be named as an Additional Insured on all liability policies, with the exception
of Workers' Compensation.
h. The City shall be granted a Waiver of Subrogation on the Contractor's Workers'
Compensation insurance policy.
i. The Contract, Bid/Contract number,event dates, or other identifying reference must be listed
on the certificate.
The Certificate Holder should read as follows:
City of Boynton Beach
Attn: Risk Management
100 E. Ocean Ave
Boynton Beach,FL 33435
The Contractor has the sole responsibility for all insurance premiums and shall be fully and
solely responsible for any costs or expenses as a result of a coverage deductible, co-insurance
penalty,or self-insured retention; including any loss not covered because of the operation of such
Franchise Agreement—Florida Public Utilities Company 19
deductible, co-insurance penalty, self-insured retention, or coverage exclusion or limitation. Any
costs for adding the City as an Additional Insured shall be at the Contractor's expense.
If the Contractor's primary insurance policy/policies do not meet the minimum requirements, as
set forth in this Contract, the Contractor may provide an Umbrella/Excess insurance policy to
comply with this requirement.
The Contractor's insurance coverage shall be primary insurance as respects to the City, a
political subdivision of the State of Florida, its officials, employees, and volunteers. Any
insurance or self-insurance maintained by the City, its officials, employees, or volunteers shall be
excess of Contractor's insurance and shall be non-contributory.
Any exclusions or provisions in the insurance maintained by the Contractor that excludes
coverage for work contemplated in this Contract shall be deemed unacceptable and shall be
considered breach of contract.
All required insurance policies must be maintained until the contract work has been accepted by
the City, and/or this Contract is terminated. Any lapse in coverage shall be considered breach of
contract. In addition, Contractor must provide confirmation of coverage renewal via an updated
certificate should any policies expire prior to the expiration of this Contract. The City reserves
the right to review,at any time,coverage forms and limits of Contractor's insurance policies.
All notices of any claim/accident (occurrences) associated with this Contract, shall be provided
to the Contractor's insurance company and the City's Risk Management office as soon as
practical.
It is the Contractor's responsibility to ensure that all independent and subcontractors comply with
these insurance requirements. All coverages for independent and subcontractors shall be subject
to all of the requirements stated herein. Any and all deficiencies are the responsibility of the
Contractor.
NOTE: These are minimal insurance requirements. Additional insurance, (e.g., Sexual Assault
and Molestation, etc.) may be required based upon the type of event, event location, and/or
number of participants.
Revised 04/25/2025
Franchise Agreement—Florida Public Utilities Company 20