Ordinance No. 40-15-22 STATE OF FLORIDA DUVAL COUNTY
1,the undersigned City Clerk for the City of Atlantic Beach,
Duval County,Florida,do hereby certify the within and
foregoing Ii a true and correct copy of the original as It
appears on record end file In the Mee of the ity Clerk
forAtiantio Beech.Witness my hand and official seal of
NATURAL GAS the City of Atlantic Beech,Florida,
FRANCHISE AGREEMENTS aMrd day of _ebrucir 20 /,(o.•
ORDINANCE NO. 40-15-22 I fl4 -
City Clerk
AN ORDINANCE GRANTING TO PEOPLES GAS SYSTEM, A DIVISION
OF TAMPA ELECTRIC COMPANY, ITS SUCCESSORS AND ASSIGNS, A
NON-EXCLUSIVE NATURAL GAS FRANCHISE AGREEMENT TO USE
THE PUBLIC RIGHTS OF WAY OF THE CITY OF ATLANTIC BEACH,
FLORIDA, AND PRESCRIBING THE TERMS AND CONDITIONS UNDER
WHICH SAID FRANCHISE MAY BE EXERCISED; MAKING FINDINGS;
PROVIDING AN EFFECTIVE DATE; AND REPEALING PRIOR
ORDINANCE.
WHEREAS, Peoples Gas System and the City of Atlantic Beach desire to enter into a
franchise agreement for a period of fifteen (15) years commencing from the date provided
herein; and
WHEREAS, the City Commission finds that it is in the public interest of its citizens to
enter into a new franchise agreement with Peoples Gas System.
NOW THEREFORE,BE IT ENACTED BY THE CITY COMMISSION OF THE CITY
OF ATLANTIC BEACH,FLORIDA, THAT:
SECTION 1: DEFINITIONS
For the purposes of this Ordinance, the following terms shall have the meaning
given herein.
A. "Customer" shall mean any Person served by the Company within the
corporate limits of the City.
B. "City" shall mean the City of Atlantic Beach, Duval County, Florida, its
successor and assigns.
C. "Company" shall mean Peoples Gas System, a division of Tampa Electric
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Company, a Florida corporation, its successors and assigns.
D. "Distribution System" shall mean any and all transmission pipe lines,
main pipe lines and service lines, together with all tubes, traps, vents,
vaults, manholes, meters, gauges, regulators, valves, conduits,
attachments, structures and other appurtenances, as are used or useful in
the sale, distribution, transportation or delivery of Natural Gas and as are
situated within the corporate limits of the City.
E. "Effective Date" shall mean the date this Franchise becomes Effective as
described in Section 19 below.
F. "Franchise" or "Franchise Agreement" shall mean this agreement, as
passed and adopted by the City and accepted by the Company, as provided
in Section 19 below.
G. "FPSC" shall mean the Florida Public Service Commission or any
successor agency.
H. "Gross Revenues" shall mean all revenues (as defined by the Florida
Public Service Commission)received by the Company from any Customer
from the sale of Gas.
I. "Person" shall mean any individual, firm, partnership, estate, corporation,
company or other entity, including, but not limited to, any government
entity or municipally-owned utility.
J. "Natural Gas" or "Gas" shall mean natural gas and/or manufactured gas
and/or a mixture of gases which 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").
K. "Right-of-way" means any street, road, lane, highway, avenue, boulevard,
alley, waterway, bridge, easement, public place or other right-of-way that
is owned by the City.
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SECTION 2: GRANT
The City hereby grants to the Company the non-exclusive right, privilege, and franchise
to lay, erect, construct, operate and maintain in, on or under any and all Rights-of-way, as they
now exist or may be hereafter constructed, opened, laid out or extended within the present
incorporated limits of the City, or in such territory as may be hereafter added or annexed to, or
consolidated with, the City, a Distribution System subject to the terms and conditions herein
contained.
SECTION 3: TERM
Except as provided in Section 15, the Franchise hereby granted shall be for a period of
fifteen(15)years from the effective date of this ordinance.
SECTION 4: ASSIGNMENT
A. The Franchise hereby granted shall not be leased, assigned or otherwise alienated
or disposed of except with the prior express written consent of the City, which shall not be
unreasonably withheld or unduly delayed. No assignment shall be allowed without the assignee
assuming the terms of the Franchise Agreement with the City.
B. Notwithstanding the foregoing, the Company may, with the prior written consent
of the City, which consent shall not be unreasonably withheld, conditioned or delayed, lease,
assign or otherwise alienate and transfer this Franchise in connection with the lease or sale of the
Distribution System or upon its merger or consolidation with, or transfer to, a corporation
engaged in similar business (including an affiliate or subsidiary of the Company), or pledge or
mortgage of such Franchise in connection with the physical property owned and used by it in the
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operation of the Distribution System for the purpose of securing payment of monies borrowed by
the Company.
SECTION 5: CITY COVENANT
As a further consideration for this Franchise Agreement, the City covenants and agrees
that it will not, during the term of this Franchise Agreement, engage in the business of
distributing or selling Natural Gas within the corporate limits of the City, as modified, during the
term of this Franchise Agreement.
SECTION 6: USE OF STREETS
The Distribution System shall be erected, placed, or laid in such manner as will,
consistent with necessity, least interfere with other public uses of the Rights-of-way, and said
Rights-of-way shall not be unnecessarily obstructed, and before, except in an emergency
situation, the Company makes any excavation or disturbs the surface of any of the Rights-of-
way, it shall make application for a permit to the appropriate City authority. The City shall issue,
or if applicable deny, permits within ten (10) business days of application by the Company. In
consideration of the franchise fees contemplated in this agreement, the City shall not charge the
Company any fees for the issuance of such permits. The Company shall, with due diligence and
dispatch, place such Rights-of-way in as good a condition as before such excavation or
disturbance was made; provided, however, that should the Company fail, within ten (10) days of
its receipt of written notice from the City, to restore such Rights-of-way, then the City may
undertake such restoration (other than any restoration work on the Distribution System) and
charge the reasonable cost thereof to the Company.
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Company shall at all times comply with all federal, state and local laws, ordinances,
regulations and orders that are applicable to the operation of its business, and this Franchise
Agreement and its performance hereunder. Without limiting the generality of the foregoing,
Company shall at all times, at its own expense, obtain and maintain all certifications, credentials,
authorizations, licenses and permits necessary to conduct that portion of its business relating to
the exercise of its rights and the performance of its obligations under this Franchise Agreement.
To the extent consistent with Florida law, the Company hereby agrees to abide by all the
rules and regulations and ordinances which the City has passed or might pass in the future, in the
exercise of its police power, and further agrees to abide by any established policy which the City
or its duly authorized representative has passed, established, or will establish, in the exercise of
its police power; provided, however, that the City shall not pass any ordinance or regulation that
results in a material change in the rights or obligations of the Company under the Franchise
Agreement.
SECTION 7: MAINTENANCE
All such components of the Distribution System of the Company located within the City
shall be installed and maintained in accordance with accepted industry practice and in
accordance with the orders, rules, and regulations of the Florida Public Service Commission.
For purposes of the foregoing sentence, "accepted industry practice" means the overall body of
conventions, rules and procedures generally regarded as defining accepted practice within the
natural gas industry in the State of Florida.
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SECTION 8: LAYING OF PIPE
All components of the Distribution System shall be laid consistent with all applicable
codes, rules, regulations and laws, including, to the extent consistent with all applicable codes,
rules,regulations and laws, specifications contained in City permits.
SECTION 9: CONSTRUCTION WORK
The City reserves the right to permit to be laid electric conduits, water and gas pipes and
lines, cables, sewers, and to do and permit to be done any underground work that may be deemed
necessary or proper by the City in, across, along, or under any Right—of-way. Whenever, by
reason of establishing a grade or by reason of changes in the grade of any Right-of-way, or by
reason of the widening, grading,paving, or otherwise improving present or future Rights-of-way,
or in the location or manner of construction of any water pipes, electric conduits, sewers, or other
underground structure located within the Rights-of-way, it shall be deemed necessary by the City
to remove, relocate or disconnect any portion of the Distribution System of the Company hereto
for such public purpose, such removal, relocation or disconnection shall be made by the
Company as ordered in writing by the City without claim for reimbursement. If the City shall
require the Company to remove, relocate or disconnect any portion of its Distribution System or
in any way to alter the placement or location of the Distribution System, to enable any other
Person to use said Rights-of-way of the City, as part of its permitting or approval process, the
City shall require the Person desiring or occasioning such removal, relocation, disconnection or
alteration to reimburse the Company for any loss, cost or expense caused by or arising out of
such removal, relocation, disconnection or alteration of any portion of the Distribution System.
The Company further agrees that it will not intentionally interfere with, change, or injure any
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water pipes, drains, or sewers of said City unless it has received specific permission from the
City or its duly authorized representative.
SECTION 10: FRANCHISE FEE
Subject to Section 11 below, within thirty(30) days after the close of the first full billing
month following the effective date of this Franchise Agreement, and each month thereafter
during the term of this Franchise Agreement, the Company, its successors or assigns, shall pay to
the City, or its successors, a sum of money equal to six percent (6%) of the Company's Gross
Revenue, less any adjustments for uncollectable accounts, from the sale of Natural Gas to
Customers within the corporate limits of the City. The franchise fee payment shall be deemed
paid on time if post-marked within thirty(30)days of the close of the preceding billing month.
SECTION 11: IDENTIFICATION OF CITY RESIDENTS
No less than thirty (30) days prior to the Effective Date, the City shall deliver to the
Company such information (including City limit streets and block numbers) as is needed by the
Company to determine which of its customer are located within the City limits. The City shall
also provide such information no less than thirty (30) days prior to the effectiveness of any
change in said limits, whether by addition, annexation or consolidation, or upon the Company's
request. The Company shall be relieved of any obligation to pay franchise fees to the extent the
City has failed to provide information in accordance with this Section 11.
SECTION 12: ACCOUNTS AND RECORDS
The Company shall maintain accounting, maintenance, and construction records as
prescribed by the FPSC. The Company shall establish and maintain appropriate accounts and
records in such detail that revenues within the corporate limits of the City are consistently
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declared separately from all other revenues, and such records shall be maintained within the
State of Florida. Upon request by the City, or its designated representative, and execution of a
confidentiality agreement reasonably satisfactory to the Company, the Company shall make
available said records within thirty (30) days to the City for the determination of the accuracy of
the Gross Revenues upon which the Company's franchise fee is based. The Company shall
maintain its billing records only for the period of time required by the FPSC and any
examination conducted after such period shall be confined to the billing records then available.
SECTION 13: INSURANCE
During the term of this Franchise, 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 corporate limits of the City, as they currently exist or may exist in the future. Each such
policy shall be in the minimum sum of$1,000,000.00 for injury or death to any one person, and
in the minimum sum of$5,000,000.00 for injury or death to all persons where there is more than
one person involved in any one accident, and in the minimum sum of$1,000,000.00 for damage
to property,resulting from any one accident, and each of the said minimum sums shall remain in
full force and shall be undiminished during the effective period of this Ordinance. The coverage
requirements set forth in this Section 13 may be satisfied, in whole or in part, with self-
insurance.
Every such insurance policy shall contain a provision whereby every company executing
the same shall obligate itself to notify the clerk of the City, in writing, at least thirty (30) days
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before any material alteration, modification, or cancellation of such policy is to become
effective.
SECTION 14: INDEMNIFICATION
In consideration of the permissions granted to the Company by this Franchise Agreement,
the Company hereby agrees to indemnify and hold harmless the City, its officers, agents and
employees from and against claims, suits, actions, and causes of action, to the extent caused by
the Company's negligent operation of the Distribution System within the City during the term of
this Franchise and resulting in personal injury, loss of life or damage to property sustained by
any person or entity, through or as a result of the doing of any work herein authorized or the
failure to do work herein required, and including all reasonable costs, attorney's fees, expenses
and liabilities incurred by the City in connection with any such claim, suit or cause of action,
including the investigation thereof, and the defense of any action or proceeding brought thereon
and any order,judgment or decree which may be entered in any such action or proceeding or as a
result thereof; provided, however, that neither the Company nor any of its employees, agents,
contractor, licensees, or sublessees shall be liable under this section for any claims, demands,
suits, actions, losses, damages, or expenses, including attorney's fees, arising out of the
negligence, strict liability, intentional torts, criminal acts, or error of the City, its officers, agents,
or employees. The provisions of this section shall survive the expiration or earlier termination of
this Franchise Agreement. Notwithstanding any provision herein to the contrary, the Company's
liability under this Agreement shall be limited to the assets and business of Peoples Gas System,
a division of Tampa Electric Company, as if Peoples were incorporated separate and apart from
Tampa Electric Company.
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SECTION 15: TERMINATION BY CITY
Violation by the Company of any of the covenants, terms, and conditions hereof, or
default by the Company in observing or carrying into effect any of said covenants, terms and
conditions, shall authorize and empower the City to declare a termination this Franchise
Agreement; provided, however, that before such action by the City shall become operative and
effective, the Company shall have been served by the City with a written notice setting forth all
matters pertinent to such violation or default, and describing the action of the City with respect
thereto, and the Company shall have had a period of sixty (60) days after service of such notice,
or, in the event such cure reasonably requires a period of more than sixty (60) days, sixty (60)
days to present a plan, reasonably satisfactory to the City, to effect such cure; and provided
further that any violation or default resulting from a strike, a lockout, an act of God, or any other
cause beyond the control of the Company shall not constitute grounds for termination.
SECTION 16: CHANGES IN PROVISIONS HEREOF
Changes in the terms and conditions hereof may be made by written agreement between
the City and the Company.
SECTION 17: SEVERABILITY; CHANGE IN LAW
(A) If any section, part of a section, paragraph, sentence, or clause of this Ordinance
shall be adjudged by a court of competent jurisdiction to be invalid, such decision shall not affect
the validity of any other portion hereof, but shall be restricted and limited in its operation and
effect to that specific portion hereof involved in the controversy in which such decision shall
have been rendered; provided, however, that should elimination of the specific portion of the
Franchise Agreement adjudged to be invalid results in significant adverse consequences to a
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party, then that party may terminate this Franchise Agreement by providing thirty (30) days
written notice to the other party.
(B) Upon the issuance by a court of competent jurisdiction of an order, ruling, or
decision, or the enactment or adoption by the Florida Legislature, the City or any other
governmental or regulatory body, of a law, rule, regulation or ordinance, that materially
diminishes a municipality's ability to exact franchise fees from a utility, or that effectively does
away with the ability of a municipality to grant a franchise altogether, then the Company or City
may terminate this Franchise Agreement by providing ninety(90) days written notice to the other
ply
SECTION 18: GOVERNING LAW
This Franchise shall be governed by the laws of the State of Florida and applicable
federal law.
SECTION 19: EFFECTIVE DATE
This Franchise Agreement shall become effective upon its acceptance by the Company,
which acceptance must be evidenced in writing within sixty (60) days of the City's passage and
adoption hereof.
� /2)
PASSED AND CERTIFIED AS TO PASSAGE this day of
40 f6
MITCHELL E. REEVES
MAYOR
ATTEST: r 4L11 .� h%2�2��
DONNA L. BARTLE, CMC
CITY CLERK
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APPROVED AS TO FORM AND CORRECTNESS:
Accepted this 5-4day of f u / 4
PEOPLES GAS SYSTEM,A DIVISION OF
TAMPA ELECTRIC COMPANY
By: ovAlr. - G :�1� µ4
Title: ■
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