(b) The Grantor shall have the first option to purchase the property of Grantee within theCity of Marianna at any time the Grantee elects to sell during franchise period.(c) It is expressly understood and agreed that if any pole or poles erected by Grantee shallunreasonable interfere with the rights of public or private abutting property owners, that upon dueprotest in writing by such owner, the Grantee shall relocate said pole or poles at somesatisfactory point, at its own expense.SECTION 2. At all time during the term of this franchise. Grantee shall promptly and withoutdiscrimination furnish an adequate supply of electric energy at standard voltage within approvedlimits to Grantor and its successors, and to persons and corporate inhabitants thereof who requestthe same and agree to abide by Grantee’s reasonable rules and regulations. Grantee shall use duecare to construct and maintain its facilities in a manner that will not unreasonably interferewith the proper use by the public of the streets and other public places of the Grantor and shalluse care and caution in making any opening in any of the streets and other public places ofGrantor for the purpose of erecting, repairing and/or maintaining its facilities to prevent injuryto persons and property, and Grantee shall, at its expense, replace and restore all streets andother publicplaces so opened to their former conditions as nearly as practicable and within a reasonable time.No first class streets or any other street that has been built or resurfaced in the last fiveyears shall be opened for the purpose of installing underground service without written approvalof the City Manager.
 
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SECTION 3. At all times during the term of this franchise. Grantee shall make promptly suchextensions to existing facilities as may be required by one or more customers, or for theprospective customers, in accordance with Grantee’s rules and regulations on file and approved bythe Florida Public Service Commission. Grantee shall not be liable for any interruption of serviceof failure of supply of electric energy due to accidents unconnected with negligence on the partof Grantee, its agents or assigns, or to causes beyond the reasonable control of Grantee and suchinterruptions shall not constitute a breach of this franchise, provided Grantee shall usediligence to restore service within a reasonable time.SECTION 4. All rates and rules and regulations established by Grantee from time to time shallat all times be reasonable, and Grantee’s rates for electricity shall at all times be subject tosuch regulation as may be provided by law.SECTION 5. Without prejudice to any other rights of Grantee, any person who shall willfullyand unlawfully remove or damage any of the property, equipment and/or appliances of Grantee, usedor useful in rendering such public service, shall be fined in the sum of not more than One Thousandand No/100 ($1000.00) Dollars for such each property or equipment or part thereof so removed ordamaged.SECTION 6. All rights herein granted and authorized shall he subject to and governed by thisordinance, the laws of the State of Florida and applicable regulationsand rulings of the Florida Public Service Commission or its successors, provided that Grantorexpressly reserves unto itself all of its police power to adopt general ordinances necessary toprotect the safety and welfare of the general public in relation to the rights hereby granted notinconsistent with the provisions of this ordinance.
 
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SECTION 7. Grantee shall save and keep Grantor harmless from any and liability by reason ofdamage or injury to any person or property whatsoever on account of the negligence of Grantee inthe installation, maintenance and operation of its facilities; provided, Grantee shall have beennotified by Grantor, in writing, of any claim against Grantor on account thereof, and shall haveample opportunity to defend same.SECTION 8. Grantee shall install and maintain meters for measuring electric current and shallhave the right of ingress and egress to the premises of each consumer, from time to time, for thepurpose of reading, repairing, testing and maintaining Grantee’s meters and appurtenances. Suchmeters and appurtenances shall at all times remain the property of the Grantee and shall beremovable at any time.SECTION 9. Within thirty (30) days after the last day of each month after the approval ofthis grant, the Grantee, or its successors or assigns shall pay to the Grantor, or its successors,at Grantor’s option, as part of the consideration for the granting of this franchise, a sum equalto an amount of 6% of the gross sales of electricity within the City of Marianna for the precedingmonth.
 
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SECTION 10. The Grantor hereby reserves the right at and after expiration or termination ofthis grant to purchase the property of Grantee within the City of Marianna, and, as a conditionprecedent to the taking effect of this grant, Grantee shall give and grant to Grantor, and, by itsacceptance hereof, Grantee shall conclusively be deemed tohave given and granted to Grantor, the right to purchase so reserved. The purchase price of theproperty shall be determined by three (3) qualified appraisers with expertise in arriving atvaluation of electric companies and all of their component parts; one appraiser being appointed bythe City Commission of the City of Marianna, one appraiser appointed by Florida Public Utilities,and the two thus appointed shall appoint a third appraiser. The final price to be paid for thesystem is to be the fair market value decided by the majority vote of the three appraisers. Ifeither Grantor or Grantee does not appoint an appraiser within sixty (60) days after beingrequested to do so, the appraisal shall be made by the appraisal firm appointed by the other, andtheir appraisal shall be the purchase price to be paid by the City.The Grantee shall be responsible for the cost incurred by its appraiser, the Grantor will beresponsible for the cost incurred by its appraiser, and the Grantor and Grantee shall shareequally in the cost of the third appraiser.The Grantor will notify the Grantee, in writing, at least six (6) months prior to theexpiration date of this franchise, or any extension thereof, of Grantor’s intent to exercise thepurchase option hereby reserved; Grantor shall thereafter close on such purchase within twentyfour (24) months after referendum to approve purchase of system, or shall be deemed to have waivedits right to so purchase the system unless said delay is due to conduct and actions of Grantee.The Grantor may at its option exercise its right to purchase Grantee’s property pursuant tothe above procedure, or pursue condemnation as outlined in Florida Statutes Chapter 73.
 
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SECTION 11. Grantee by its acceptance hereof agrees to observe, perform, and keep all of theagreements, undertakings and conditions hereof to be observed, performed and kept by Grantee.SECTION 12. In consideration of Grantee’s undertaking hereunder as evidenced by itsacceptance hereof, Grantor agrees not to engage in the business of distributing and sellingelectric energy during the life of this franchise or any extension thereof in competition withGrantee, its successors and assigns however this provision shall not prohibit the Grantor fromproviding electrical energy and capacity for its own use.SECTION 13. Grantee by the acceptance hereof further agrees to erect and maintain withoutcost, except for electric energy to be charged according to the published rates of Grantee (whichrates include a facilities, maintenance and energy charge), such street lights as the Grantorshall from time to time consider necessary and proper to meet the reasonable needs of the Grantorfor lighting streets and other public ways. It being expressly understood, however, that in theevent said Grantor shall request the erecting or placing of any particular light and shallsubsequently request the discontinuance of said light prior to the expiration of this franchise,the Grantor shall reimburse the Grantee for its expense in the erection and removing of suchdiscontinued light. The intention being that the Grantee will make any just and reasonableextension of its electric light system which may be requested by the Grantor commensurate with afair and compensatory return on the fair market value of the property used and useful infurnishing such extension.
 
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SECTION 14. At least twelve (12) months prior to the expiration date of the GenerationServices contract, Grantee will provide Grantor written notice of theexpiration of the contract. Should Grantor desire to participate in the process of securing a newGeneration Services contract, the Grantor will provide notice, in writing, to Grantee. If required,the Grantee and Grantor shall meet and review the proposals, in accordance with any confidentialityagreements from prospective bidders, for future contracts. The Grantee may employ a consultant forthe purposes of conducting a bidding process, evaluating all proposals and determining the bestGeneration Services supplier.Prior to entering into any Generation Services contract, Grantee, if requested in writing,shall provide Grantor with a copy of the consultant’s report in accordance with anyconfidentiality agreements, whereupon Grantor shall have a period of thirty (30) days to reviewthe same and make its recommendations, if any, to Grantee, which such recommendations the Granteeshall consider in contracting for Generation Services.If during the term of an existing generation services contract, any material terms of thecontract are altered, the Grantee shall notify the Grantor and the Grantor shall have theopportunity to review proposed revisions and advise the Grantee of concerns prior to theacceptance of the proposed new terms by the Grantee.Failure to comply with this Section shall constitute a default by the Grantee and the Grantorshall have the option to terminate this agreement pursuant to terms of Section 10.
 
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At least twelve (12) months prior to the expiration date of the Transmission NetworkOperating Agreement(s), Network Integration Transmission Service Agreement(s) and DistributionFacilities Agreement, Grantee will provide Grantor written notice of the expiration of thecontract. Should Grantor desire to participate in theprocess of securing a transmission agreements, the Grantor will provide notice, in writing, toGrantee. If required, the Grantee and Grantor shall meet and review the proposal(s) in accordancewith the Open Access Transmission Tariffs, as approved by the Federal Energy RegulatoryCommission, to ensure compliance of each proposal. The Grantee may employ a consultant for thepurposes of evaluating the proposal(s) in accordance with the Open Access Transmission Tariff andnegotiating and necessary modifications. Grantee will make available the consultants report to theGrantor in conjunction with the discussions as noted above.SECTION 15. The Grantor shall have the right at any time to employ an independent auditor toaudit any records of Grantee which applies to expenses and/or rates of electricity in Marianna,Florida. The Grantee hereby agrees to cooperate in every way possible with an auditor employed bythe Grantor. Any auditor employed by the Grantor shall be a certified public accountant, licensedin the State of Florida.SECTION 16. The Grantor has requested Grantee to place all electric facilities underground inan area of downtown Marianna in order to enhance the appearance of the Marianna Main Street area.The areas to be included are as follows:(a) Madison Street between Market St. and Lafayette St.(b) Green Street between Clinton St. and Lafayette St.(c) Market Street between Caledonia St. and Madison St.(d) Streets immediately adjacent to the Jackson County Courthouse.Facilities will be placed underground by Grantee in conjunction with the City of Marianna’swater system construction project that will be conducted in this area. Grantee will provide alllabor and material including, but not limited to, underground conduit to have a standardunderground type system using padmounted transformers installed in the above-mentioned area. Thefollowing conditions will also apply to the project.
 
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(a) Grantee’s customers will be responsible for making the necessary changes in theirelectrical system to accept electricity from an underground system.(b) Grantor will provide all necessary trenching, backfilling, conduit installation,padmounted transformer pads and repaving associated with this project. The installation of theconduit and construction of the padmounted transformer pads will be performed to Grantee’sspecifications.(c) The Grantor will work with CenturyTel and Comcast Cable, or their successors, to havetheir facilities placed underground during this project. Grantee will not be responsible for anyagreements or associated costs resulting from this aspect of the project.(d) Grantor will be responsible for placing underground any metered or control circuits usedby Grantor.(e) Grantee’s work will be completed within six months of the Grantor’s installation of thenecessary transformer pads and conduit.SECTION 17. Concurrent with the approval of this agreement. Grantee will begin development of“Time of Use” and “Interruptible” electric rates or similar electric rates any or all of whichmust be mutually agreed to by Grantee and Grantor. Such rates will be available to all ofGrantee’s customers both within and without the corporate limits of the Grantor and will beeffective no later than February 17, 2011. Grantor will support Grantee’s efforts duringproceedings before the Florida Public Service Commission in order to gain approval of the newelectric rates. Should the rates not be in effect by February 17, 2011, Grantor may, at any timewithin 180 days after that date, give notice to Grantee that Grantor exercises its option topurchase Grantee’s system inaccordance with procedures set forth in Section 10 of this franchise except that Grantor mustclose the purchase of the system within 12 months of the referendum to approve the purchase. IfGrantor does not give notice within the 180 day time period, this agreement shall remain in effectand continue according to its terms until its ten year expiration date.
 
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SECTION 18. All of the terms, provisions and conditions of this ordinance shall inure to andbe binding upon the respective successors and assigns of Grantor and Grantee, and shall apply tothe present and any future corporate limits of Grantor or its successors.SECTION 19. In the event Grantee, during the term of this franchise, determines to constructfacilities for the generation of electric energy sold within the City of Marianna, it will givepreference to a site for such facilities within said city if an economical and practical site canbe obtained therein.SECTION 20. This ordinance shall become effective on February 1, 2010, and shall be in fullforce and effect from such time, and upon its acceptance in writing by the Grantee filed with theCity Clerk of the City of Marianna, Florida.SECTION 21. Should any section or provisions of this ordinance or any portion thereof bedeclared by a court of competent jurisdiction to be invalid, such decision shall not affect thevalidity of the remainder as a whole or as to any part other than the part declared to be invalid.
 
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Presented in open meeting of the City Commission of the City of Marianna, and read in full this the7th day of July, 2009.Passed by the City Commission of the City of Marianna, Florida, this 7th day of July,2009.         CITY OF MARIANNA           BY: /s/ [ILLEGIBLE]       Mayor  ATTEST:   /s/ [ILLEGIBLE] City Clerk  The Florida Public Utilities Company accepts the term of said ordinance and does hereby agree toabide by the terms of the conditions of said ordinance.         FLORIDA PUBLIC UTILITIES COMPANY           BY: /s/ C.L. Stein       C.L. Stein      Its: Sr. Vice President, COO      Date: 8/28/09  
 
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