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2010-38 FPU Acceptance of Franchise Grant & Agrmt to Modify Franchise Ord.RESOLUTION 2010-38 • A RESOLUTION OF THE VILLAGE COUNCIL OF THE VILLAGE OF NORTH PALM BEACH, FLORIDA, ACKNOWLEDGING FLORIDA PUBLIC UTILITIES COMPANY'S ACCEPTANCE OF THE FRANCHISE GRANTED BY ORDINANCE NO. 2010-08; APPROVING AN AGREEMENT WITH FLORIDA PUBLIC UTILITIES COMPANY TO MODIFY THE FRANCHISE ORDINANCE TO PROVIDE FOR AN INCREASED FRANCHISE FEE IN THE EVENT A GREATER FEE IS NEGOTIATED WITH ANOTHER ENTITY AND AUTHORIZING THE MAYOR AND VILLAGE CLERK TO EXECUTE THE AGREEMENT; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, on June 24, 2010, the Village Council approved Ordinance No. 2010-08, granting Florida Public Utilities Company a renewed and restated franchise to utilize public streets and rights-of--way within the Village to provide facilities for the purchase, transmission, distribution and sale o f gas; and WHEREAS, in accordance with Section 19 of the Ordinance, the franchise took effect upon the filing with the Village Clerk of an Acceptance of Franchise Grant in the format set forth in Exhibit "A" to the Ordinance within thirty (30) days after the Council approved Ordinance 2010-08 on second reading; and WHEREAS, the Village Council wishes to formally acknowledge the filing of the Acceptance of Franchise Grant on July 12, 2010; and WHEREAS, the Village Council further wishes to simultaneously approve an Agreement to Modify Franchise Ordinance with Florida Public Utilities Company whereby the Village and Florida Public Utilities Company agree to an increase in the franchise fee set forth in Ordinance 2010-08 in the event Florida Public Utilities Company negotiates a greater franchise fee with another entity; and WHEREAS, the Village Council determines that the adoption of this Resolution is the best interests of the residents and citizens of the Village of North Palm Beach. NOW, THEREFORE, BE IT RESOLVED BY THE VILLAGE COUNCIL OF NORTH PALM BEACH, FLORIDA, as follows: Section 1. The foregoing "whereas" clauses are hereby ratified and incorporated herein. Section 2. The Village Council formally acknowledges Florida Public Utilities Company's filing of the Acceptance of Franchise Grant on July 12, 2010. Section 3. The Village Council further approves the Agreement to Modify Franchise Ordinance with Florida Public Utilities Company, a copy of which is attached hereto as Exhibit "A" • and incorporated herein by reference, and authorizes the Mayor and Village Clerk to execute the Agreement on behalf of the Village. Page 1 of 2 • ~_~ Section 4. This resolution shall take effect immediately upon adoption. PASSED AND ADOPTED THIS 22nd DAY OF JULY, 2010. illa a Seal ~ g ) ATTEST: _~ ~~~c VILLAGE CLERK MAYO Page 2 of 2 AGREEMENT TO MODIFY FRANCHISE ORDINANCE COMES NOW, FLORIDA PUBLIC UTILITIES COMPANY, a public utility organization organized and existing under the laws of the State of Florida, hereinafter the Company ("Company" or "Grantee"), and the VILLAGE OF NORTH PALM BEACH ("Grantor"), a municipal corporation organized and existing under the laws of the State of Florida, in consideration of the promises and mutual covenants herein contained and as contained in the accepted franchise ordinance, the sufficiency of which is hereby acknowledged, the parties to this Agreement agree to modify the franchise ordinance as follow: 1. That the Grantor has agreed to adopt, and the Company has agreed to accept, an ordinance granting a franchise to construct or otherwise acquire and to own, maintain, equip and operate plants and works, and all necessary or desirable appurtenances thereof, for the manufacture, purchase, transmission and distribution of artificial, natural and/or mixed gas (hereinafter referred to generally as "gas"), including the right without payment by Grantee of any special tax, assessment or charge therefore to construct, lay, extend, maintain, renew, remove, replace, repair, use and operate gas pipes and gas mains, and all appurtenances and appendages thereto, in, under, or across the present and future public streets, avenues, alleys, highways, bridges, easements and other public places within the present or any future corporate limits of 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 except as specifically required in the grant of franchise ordinance. 2. That contemporaneously with the adoption of the franchise by the Grantor and the acceptance of that franchise by the Company, the Grantor and the Company have entered into this separate Agreement that during the term of the franchise, and any renewal or extension thereof, when and if the Company negotiates a gas franchise after the effective date of the acceptance of the franchise, which increases the percentage of the franchise fee payable above the 6.5% provided by the ordinance, the Grantor shall have the right to amend the franchise ordinance during the 30 year term to provide for the application of such increase percentage to collections made for the sale of gas within the Grantor's current and future boundaries. The Company hereby irrevocably consents to any such amendments adopted pursuant hereto. Annually, as of January 1 of each year, the Company will furnish the Grantor a list of all of its gas franchises including the name and address of the franchisor, the date of the franchise, the percentage of the franchise fee, and the length of the term of the franchise, including both those negotiated after the date of acceptance of the franchise, which are covered by this Agreement, and those which are excluded. Should any of the franchises covered by this Agreement provide a franchise fee above the franchise fee provided by the amended ordinance, the Grantor, may in its sole discretion, elect to amend the existing franchise ordinance upon giving the Company at least 30 days advance written notice prior to the effective date in order to give the Company sufficient time to implement the increased franchise fee. 3. Further provided the increase referred to above shall be implemented at the beginning of the franchise year, which shall be the anniversary of the effective date of the franchise referred to above in each succeeding year. 4. Further provided that the amendment shall apply only to (a) a change in the applicable franchise fee percentage and not to any change in class of service to which it applies and (b) apply only to gas franchises negotiated by the Company after the date set forth above and not to gas franchises acquired by the Company through acquisition, purchase or merger. 5. This Agreement modifies the franchise ordinance. All other terms and conditions of the franchise ordinance shall remain in full force and effect and are applicable to this Agreement. IN WITNESS WHEREOF, the Village of North Palm Beach and Florida Public Utilities Company, have executed this Agreement modifying the franchise ordinance as of the day and year written below. DATED this ~'~ day of , 2010. FLORIDA PUBLIC UTILITIES COMPANY ._ r_ ~~Mi~.... By: C. L. Stein, Chief Operating Officer (SEAL Witness: M.L. Director of Corp Service VILLAGE OF NORTH PALM BEACH, FLORIDA BY: LC WILLIAM L. MANU ,MAYOR ATTEST: REVIEWED FOR FORM AND LEGAL SUFFICIENCY ~~ ~D MELISSA TEAL LEONARD G. RUBIN VILLAGE CLERK VILLAGE ATTORNEY