An Ordinance of the City of Palm Bay, Brevard County, Florida, Granting to City Gas Company of Florida, Its Successors and Assigns, a Non-exclusive Natural Gas Franchise in the City of Palm Bay, Florida, Including the Right to Construct, Maintain and Operate Gas Lines; Providing for Regulation of the Gas System by the City; Providing an Effective Date.
Be It Enacted by the City Council of the City of Palm Bay, Brevard County, Florida, as follows:
Section 1. Definitions.
For the purposes of this Ordinance, the following terms, phrases, words, and their derivations shall have the following meanings:
1. City is the City of Palm Bay, Brevard County, Florida.
2. Company is City Gas Company of Florida, a Florida corporation, and its successors and assigns (NUI Corporation).
3. Council is the City Council of the City of Palm Bay.
4. Person is any person, firm, partnership, association, corporation, company or organization of any kind.
5. Public Service Commission is the Public Service Commission of the State of Florida and any successor regulatory body of the State of Florida which may have jurisdiction over the subject matter of this ordinance.
Section 2. Grant of Franchise.
There is hereby granted to the Company, its successors and assigns, the non-exclusive right, privilege or franchise, to construct, distribute, maintain, and operate in, upon, over and across the present and future streets, avenues, bridges, easements, and other public places and ways of or within the present and future corporate limits of the City of Palm Bay, Florida, and its successors, in accordance with the established practice with respect to such construction and maintenance, for a period of thirty (30) years from the date hereof, facilities for the sale and distribution of natural gas, including conduits, mains, pipes, laterals and fixtures for the purpose of supplying natural gas to the City and its successors and the inhabitants thereof and persons and corporations beyond the limits thereof.
Section 3. Filing of Schedule of Rates and Charges.
Prior to commencement of construction under this franchise, the Company shall file with the City a schedule of its rates and charges. All authority and rights of the Company, its successors and assigns with respect to its rates and charges shall at all times be subject to all lawful power, authority and jurisdiction now or hereafter possessed by the Public Service Commission, or any other regulatory commission or tribunal having lawful jurisdiction thereover. After the effective date of this franchise, the Company shall file with the City all amendments to its schedule of rates and charges within thirty (30) days of approval of such amendments by the Public Service Commission.
Section 4. Filing of Plans and Specifications; Construction Requirements.
(a) All plans and specifications for the location or relocation of all gas facilities constructed pursuant to this franchise shall be approved by the City prior to commencement of any construction. The facilities shall be so located or relocated and so erected or installed as not to obstruct or interfere with any water pipes, sewers, storm drains, or other utilities or structures already installed or hereafter to be installed; and, interfere as little as possible with traffic over said streets, avenues, alleys, bridges and public places, and with reasonable egress from and ingress to abutting property, subject at all times to the lawful police power of the City. The Company shall not unnecessarily or unreasonably obstruct the use of or damage any sidewalk, driveway, curb, street, avenue, alley, bridges, easements or other public places or ways of the City which shall have been opened by the Company for the purpose of laying, placing or repairing its gas mains or service; and the Company shall, upon completion of such construction or repair, restore the construction site to as nearly the same order and condition as it was prior to excavation as is reasonably possible. Such restoration shall be maintained in an approved condition for a period of one (1) year after its completion. Any unreasonable obstruction of any street, avenue, alley, bridge, easement or other public place or way of the City not removed by the Company after written notice of ten (10) days by the City demanding removal thereof, and any such public way or place of the City not repaired by the Company after its excavation thereof, after written notice of ten (10) days by the City demanding repair thereof, may be removed or repaired, as the case may be, by the City. The reasonable cost thereof shall be charged against said Company, and, if so charged, shall be paid by the Company.
(b) In the event that at any time during the period of this franchise the City shall elect to alter, repair, or change any street, alley, easement or other public way requiring the relocation of the facilities of the Company, then the Company shall, upon reasonable written notice by the City, remove, relocate or take any other action required by the City to accommodate such alteration, repair or change to its mains or service pipes, manholes and other gas fixtures at its own expense and in accordance with specifications provided by the City.
Section 5. Installation of Piping.
All main pipe lines shall be laid at least two (2) feet below and all lateral pipe lines shall be laid at least eighteen (18) inches below the established grade of said streets, avenues, alleys, easements and other public places and ways as such grades now exist or may hereafter be established, unless otherwise specifically authorized by proper authority of the City. Wherever possible, pipe lines shall be installed without cutting the pavement.
Section 6. Quality of Materials and Corrosion Protection.
All construction made under the provision of this Ordinance shall contain quality materials meeting all industry standards, and all piping in the system shall be protected externally from corrosion by approved methods and materials. All materials and all corrosion-protective devices must be approved by the City prior to installation.
Section 7. Right of Purchase Granted to City.
The City reserves the right, at and after expiration of this franchise, to purchase the property of the Company used under this franchise as provided by the laws of Florida, and as a condition precedent to the effective date of this franchise, the Company does hereby grant and give to the City the right to purchase so reserved herein. The Company shall be deemed to have given and granted such right of purchase by the Company's written acceptance of this franchise ordinance which shall be filed in the office of the City Clerk. The purchase price for such purchase shall be determined by an appraisal performed by a qualified appraiser acceptable to the City and the Company at the time of the exercise of this right of purchase by the City.
Section 8. Obligation of the Company to Extend Service.
The Company shall promptly make such reasonable extensions of mains and service pipes as may be agreed between the Company and the City. Such extensions shall be made at the cost and expense of the Company, provided there is an average of one (1) additional consumer using gas service for other than the purpose of heating only to each two hundred (200) feet of mains included in such extension. when there is less than one (1) consumer using gas service for other than heating to each two hundred (200) feet of proposed extended mains, the Company shall not be required to make such extension until the applicant for service along such extension shall have deposited with the Company a sum of money sufficient to cover the cost of any length of the extension and excess of the length in feet of two hundred (200) times the number of additional consumers served thereby. In such cases the Company shall refund to the applicant the cost of two hundred (200) feet of main as each additional consumer on said line is served until the entire amount deposited shall have been refunded. The gas mains and equipment, and all appurtenances included in such extension shall be and remain the property of the Company. Nothing in this section shall be construed to require any person to connect to the facilities of the Company.
Section 9. Insurance.
Prior to the beginning of any work by the Company within the corporate limits of the City, the Company shall file with the City, and shall keep in full force and effect at all times during the effective period hereof, insurance certificates evidencing a liability insurance policy or policies, the terms and conditions whereof shall be such as to provide for the protection and indemnification of the City with respect to loss or damage to person or property by reason of the construction or operation of a natural gas distribution system within the corporate limits of the City.
Each such insurance policy shall be subject to the acceptance and approval of the City. Any excess insurance policy above the basic limits approved by the City must be issued by underwriters acceptable to the City.
Every such insurance policy shall contain a provision whereby every company executing the same shall obligate itself to notify the City in writing, at least thirty (30) days before any alteration, modification or cancellation, if such policy is to become effective.
In the event that any suit is filed or action brought against the City, either severally or jointly with the Company, by any person or corporation seeking to recover damages resulting from or attributable to the operations or the existence of the Company within the City or arising in any manner whatsoever out of the operations or existence of the Company within the City, whether due to the Company's negligence or otherwise, the Company shall, upon written notice by the City, defend the said suit or action and, in the event any judgment therein should be rendered against the City, the Company shall promptly pay the sum together with all costs and any reasonable attorney's fee resulting therefrom.
Section 10. Service Map.
The Company shall at all times keep an accurate map showing the location of all gas mains and service pipes laid and maintained by the Company within public easements and rights-of-way under the provisions of this Ordinance, and the maps shall be accessible for public inspection at all times during reasonable hours. A copy of this map shall be furnished the City and shall be revised annually or more frequently if determined necessary by the City, with the same being done at the expense of the Company.
Section 11. Maintenance of Service to Customer's Property; Meters.
The Company shall, at its own cost and expense, construct and maintain service to consumer's property line, and for the measurement of gas consumed, furnish, install and maintain gas meters which shall be of standard make, tested and sealed, and subject at all times to inspection by the City through such officers or agents as designated by the City.
Section 12. Service Standards.
The Company shall maintain and operate its plant and system and render efficient service in accordance with the rules and regulations as are, or may be, set forth by the Council as provided for in this Ordinance and by the Public Service Commission of the State of Florida.
Section 13. Compliance with City Regulations.
This franchise, and all work that may be done hereunder, shall be subject to valid, reasonable regulations, rules, laws and ordinances as may be in force or which may hereafter be enacted or adopted for the regulation and use of the streets and highways of the City, and for the general welfare and safety of its citizens and protection and safeguarding of their lives and property. The right is hereby reserved to the City to adopt, in addition to the provisions herein contained in existing applicable ordinances, such additional regulations as it shall find necessary in the exercise of the police powers, provided that such regulations by ordinance, specification, or otherwise shall not be in conflict with the laws of any other governing body or agency.
Section 14. Authority for Company Rules and Regulations.
The Company shall have the authority to promulgate such rules, regulations, terms and conditions governing the conduct of its business as shall be reasonably necessary to enable the Company to exercise its rights and perform its obligations under this franchise and to assure an uninterrupted service to each and all of its customers, provided, however, that such rules, regulations, terms and conditions shall not be in conflict with the provisions hereof or with the laws of the State of Florida, and shall be subject to approval by the Public Service Commission of the State of Florida.
Section 15. Franchise Fee.
Within thirty (30) days after a date six (6) months after the date of this grant and within thirty (30) days after the close of each succeeding semi-annual period, the Company, its successors and assigns, shall pay to the City and its successors an amount which will equal six percent (6%) of the Company's total billings for the sale of gas to all customers within the corporate limits of the City for the six (6) fiscal months preceding the applicable semi-annual date.
Section 16. City Access to Company Records.
The City shall have access to all of the Company's plans, contracts, and engineering, accounting, finance, statistical, customer and service records of the Company pertaining to the City of Palm Bay at all reasonable hours.
Section 17. Approval of Transfer.
The Company shall not sell or transfer its plant or system to another, nor transfer any rights under this franchise to another without Council approval; provided that no sale or transfer shall be effective until the vendee, assignee or lessee has filed in the office of the City Clerk an instrument, duly executed, reciting the facts of such sale, assignment or lease accepting the terms of the franchise and agreeing to perform all the conditions thereof.
Section 18. Forfeiture of Franchise.
Any violation by the Company, its vendee, lessee or successor of the provisions of this franchise or any material portions thereof, or the failure promptly to perform any of the provisions thereof, shall be cause for the forfeiture of this franchise and all rights hereunder by the City after written notice to the Company and continuation of such violation, failure or default for a period of six (6) months after the date of such notice.
Section 19. Hold Harmless and Indemnification.
City shall in no way be liable or responsible for any accident or damage that may occur in the construction, operation or maintenance by the Company of its facilities hereunder, and the acceptance of this Ordinance shall be deemed an agreement on the part of the Company to indemnify City and hold it harmless against any and all claims, liability, loss, cost, damage or expense, of any type or nature whatsoever, including attorney's fees and court costs, which may arise in any way from or out of the construction, operation or maintenance of the Company's facilities hereunder.
Section 20. Amendment and Renegotiation of Franchise Fee.
The City and Company further mutually agree that the franchise fee established in Section 15 above be subject to renegotiation and amendment at the written request of the City or the Company on the fifth anniversary of this agreement and each five (5) years thereafter. Such written request shall be made no later than ninety (90) days prior to the close of such five (5) year period. Request for renegotiation and amendment shall be delivered by either party to the City Manager or the Company, as the case maybe, providing notice of an intent to negotiate. This ordinance shall remain in full force and effect until any negotiated amendments have been duly approved by both the City and the Company.
If the City and the Company are unable to agree on any such changes, the dispute shall be settled by binding arbitration. In such arbitration, the City shall select one (1) arbitrator, the Company shall select one (1) arbitrator, and the two (2) arbitrators so chosen shall select a third arbitrator. The majority decision of the three (3) arbitrators shall be final and binding upon the parties.
Section 21. Conflicts with Federal and State Regulations.
In the event of any conflict between the terms of this Ordinance and rules and regulations of the Federal and Florida Public Service Commissions, now or hereafter in effect, the rules and regulations of such commissions shall prevail.
Section 22. Franchise Not To Be Construed as Waiver of Other Applicable Ordinances.
(a) Nothing in this Ordinance shall be construed as a surrender by the City of its right of power to pass ordinances regulating the use of its streets and other public ways.
(b) Granting of this franchise shall not excuse the Company herein from paying a reasonable annual occupational license fee to the City.
('74 Code, App. B, Art. III, Div. 2) (Ord. 85-12, passed 4-4-85)
Editor's note:
Name changed from City Gas Company of Florida to Florida City Gas on December 5, 2004.