HomeMy WebLinkAboutGas Franchise Agreement 1997-2027 GAS FRANCHISE AGREEMENT
THIS AGREEMENT is made and entered into as of this 18 day of February, 1997, by
and between the CITY OF CAPE CANAVERAL, a Florida Municipal Corporation ( "City "),
and NUI CORPORATION, a New Jersey Corporation, d /b /a City Gas Company of Florida
( "Company ").
RECITALS:
WHEREAS, the City is authorized to grant one or more non - exclusive, franchises to
construct, reconstruct, operate, and maintain a natural gas system within the City; and
WHEREAS, the City of Cape Canaveral fords it in the public interest to make available
within its corporate limits high - quality and reliable natural gas service; and
WHEREAS, the City of Cape Canaveral finds it in the public interest to retain regulatory
authority over the provision of natural gas service, to the extent allowed by law, because of the
overriding public health, safety and welfare considerations associated with the provision of this
service; and
WHEREAS, the City of Cape Canaveral fords it in the public interest to retain control
over the use of public rights -of -way by providers of natural gas to prohibit interference with the
public convenience, to promote aesthetic considerations, to promote planned and efficient use of
limited right -of -way space, and to protect the public investment of right -of -way property; and
WHEREAS, the City of Cape Canaveral finds it in the public interest to ensure that high
quality natural gas service is maintained through a responsive customer service procedure; and
WHEREAS, the City Council of the City of Cape Canaveral finds that the granting of a
non - exclusive natural gas franchise is the best means of assuring that the above described interests
of the City of Cape Canaveral are promoted and maintained; and
WHEREAS, the City, after public hearings and due evaluation, has determined that it is
in the best interests of the public health, safety and welfare of the City and its residents to approve
this Gas Franchise Agreement with the Company.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein, the parties mutually agree as follows:
I. RECITALS.
1.1 Recitals Incorporated. Each and all of the foregoing recitals are hereby
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incorporated herein and acknowledged to be true and correct. Failure of any of the foregoing
recitals to be true and correct shall not operate to invalidate this Agreement.
II. SHORT TITLE.
2.1 This Agreement shall be known and may be cited as "Cape Canaveral
Natural Gas Franchise".
III. PURPOSE AND GOALS.
3.1 Purpose.
The City finds that the development of a natural gas distribution system has
the potential of having great benefit and impact upon the people of the City. The City further
finds that the public convenience, safety and general welfare can best be served by exercising
regulatory powers which are vested in the City or such persons as the City shall designate. It is
the intent of this Agreement and subsequent amendments thereto to provide for and specify the
means to attain the best possible public interest and public purpose in the distribution of natural
gas within the boundaries of the City, and this finding shall be an integral part of this Agreement.
Further, the City recognizes that natural gas has, as a fuel source, the
capability of providing abundant clean- buming and efficient energy to the City's residents and
commercial businesses.
3.2 Goals.
For these purposes, the following goals underlie the regulations and
provisions contained herein:
(a) Natural gas should be made available to all City residents and
commercial businesses in accordance with the City Gas Company of Florida Natural Gas tariff
original volume no. 4 as filed with the Public Service Commission and any amendments,
modifications, or revisions thereto.
(b) The natural gas distribution system should be capable of
accommodating both the current and reasonably foreseeable future energy needs of the City.
(c) The natural gas distribution system should be improved and
upgraded, if necessary, during the franchise term so that the new facilities necessary for the
operation of this system shall be integrated to the maximum extent possible with existing facilities.
3.3 Marketing Strategy. Within six (6) months of the effective date in
paragraph 6.1 herein, the Company shall prepare, and provide to the City, a marketing program
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for expanding natural gas service to residential and commercial customers within the Franchise
Area. Thereafter, the Company shall prepare and provide to the City a new or updated marketing
program every seven (7) years. The Company shall implement the marketing program as
diligently as is economically feasible.
IV. DEFINITIONS.
For the purpose of this Agreement, the following terms and words shall have the
meaning ascribed to them, unless the context clearly indicates otherwise:
4.1 "Agreement" or "Franchise" shall mean this Franchise Agreement, as
amended from time to time, which shall constitute authorization, voluntarily entered into by the
Company and granted by the City, for the purpose of providing the Company authorization to
construct or operate a Natural Gas Distribution System in the Franchise Area. Any such
authorization, in whatever form granted, shall not mean or include any license or permit required
for the privilege of transacting and carrying on a business within the City as required by any City
ordinance or resolution.
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4.2 "City" means the City of Cape Canaveral, a Florida Municipal Corporation,
its successors and assigns.
4.3 "Company" means NUI Corporation, a New Jersey Corporation, d/b /a City
Gas Company of Florida, its successors and assigns.
4.4 "Franchise Areas" means all of the territory within the incorporated City,
and such additional territory as may be from time to time annexed into the City.
4.5 "Gross Annual Revenue" means all receipts derived by the Company
directly from the transport and sale of natural gas in the Franchise Area.
4.6 "Natural Gas" means natural gas in a gaseous state.
4.7 "Natural Gas Distribution System" shall mean the transmission pipelines
or any related equipment, facility, or building necessary or desirable to the transportation or
delivery of natural gas, or its treatment or storage during the course of transportation or delivery,
under the control of the Company, for the transmission, distribution or sale of Natural Gas
pursuant to this Agreement, or any part thereof.
4.8 "Public Right-of-Way" means the surface, the air space above the surface,
and the area below the surface of any public street, sidewalk, bridge, waterway, utility easement,
or other public property, which shall entitle the City and the Company to the use thereof for the
purpose of installing and maintaining the Company's Natural Gas Distribution System. No
reference herein, or in any Franchise, to the "Public Right -of -Way" shall be deemed to be a
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representation or guarantee by the City that its title to any property is sufficient to permit its use
for such purpose, and the Company shall, by its use of such terms, be deemed to gain only such
rights to use property in the City as the City may have the undisputed right and power to give.
4.9 "Transfer" means the disposal by the Company, directly or indirectly, by
gift, assignment, voluntary sale, merger, consolidation or otherwise, of twenty percent (20%) or
more at one time of the ownership or controlling interest in the Company, or thirty-five percent
(35%) cumulatively over the term of the Franchise of such interests to a corporation, partnership,
limited partnership, trust or association, or person or group of persons acting in concert or a
change in control. Transfer shall not include any transfer or assignment to a person controlling,
controlled by, or under the same common control as the Company.
V. GRANT OF FRANCHISE.
5.1 Grant of Franchise. The Company is hereby granted a Natural Gas
Franchise, subject to the terms and conditions of this Agreement. Pursuant to this Franchise, the
Company may construct, operate, and maintain a Natural Gas Distribution System in, under, over,
along, across or upon the Public Rights-of-Way within the City for the purpose of transmission,
distribution and sale of Natural Gas for commercial, industrial, and residential use.
In exercising rights pursuant hereto, the Company shall not endanger or
interfere with the lives of persons, interfere with any structures, buildings, or facilities of the City,
any public utility, or any other person permitted to use the Public Rights-of-Way, nor
unnecessarily hinder or obstruct the free use of the Public Rights-of-Way. The grant of this
Franchise does not establish priority for use over other present or future permit, license, or utility
franchise holders or the City's own use of the Public Rights-of-Way.
All rights granted for the construction, reconstruction, maintenance, and
operation of the Natural Gas Distribution System shall be subject to the continuing right of the
City to approve such reconstruction or relocation of the Natural Gas Distribution System in the
Public Rights-of-Way as shall, at the discretion of the City, be in the public interest.
5.2 Franchise Not Exclusive. The grant of this Franchise shall be
non-exclusive and shall not affect the right of the City to grant to itself or any other person the
right to: build, operate, or own a Natural Gas Distribution System; occupy or use the Public
Rights-of-Way for the construction, reconstruction, maintenance, and operation of a Natural Gas
Distribution System or for any purpose whatsoever. No privilege or power of eminent domain
is bestowed on the Company by the grant of this Franchise, but this Franchise shall not be
construed to limit the Company's power of eminent domain under state law.
5.3 Event of Conflict. In the event of conflict between the terms and
conditions of the City Code and this Agreement, this Agreement shall control. In all events, the
Company shall comply with all laws, ordinances and regulations enacted by the City pursuant to
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its lawful police and regulatory powers as authorized by law. This Franchise is hereby made
subject to the general City code provisions now in effect and hereafter made effective. Nothing
in the Franchise shall be deemed to waive the requirements of the various codes of the City
regarding permits, taxes, and fees to be paid.
VI. EFFECTIVE DATE OF FRANCHISE; TERM.
6.1 Effective Date. The effective date of this Franchise shall be February 18,
1997.
6.2 Term. The term of this Franchise shall be for a period of thirty (30) years
fi from the effective date unless sooner terminated as provided for in this Agreement. The Franchise
{ shall terminate on February 18, 2027.
VII. FRANCHISE OPERATION.
7.1 Use of Public Rights -of -Way. For the purpose of operating and
maintaining a Natural Gas Distribution System in the Franchise Area, the Company may erect,
install, construct, repair, replace, reconstruct and retain in, on, over, under, upon, across and
along the public streets and ways within the Franchise Area such pipes, appurtenances, or related
attachments or equipment and other property and equipment as are necessary to the operation of
the Natural Gas Distribution System; provided, however, that the Company complies with all
design, construction, safety, and performance provisions contained in this Agreement, applicable
local ordinances, and state and federal law.
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7.2 Right of Condemnation Reserved. Nothing herein shall limit any right
the City may have to acquire by eminent domain or otherwise any property of the Company;
provided, however, that any such acquisition shall be for a price that values the Company's
property as allowed by law.
7.3 City's Right to Perform Public Works. Nothing in this Agreement shall
be in hindrance to the right of the City or any governmental authority to perform or carry on,
directly or indirectly, any public works or public improvements of any description. Should the
Natural Gas Distribution System in any way interfere with the construction, maintenance or repair
of such public works or public improvements, the Company shall, at its own cost and expense,
protect or relocate its Natural Gas Distribution System, or part thereof, as reasonably directed by
the City officials or any governmental authority.
7.4 Emergency Response. The Company shall respond promptly in the case
of fire, emergency, or disaster in the City. The Company shall be responsible to take all prudent
actions necessary to mitigate any hazardous impact its Natural Gas Distribution System could
contribute to any fire, emergency, or disaster at it's own expense.
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7.5 Removal or Abandonment. If the Company elects to remove any
portion of the Natural Gas Distribution System, the Company shall restore, in accordance with
the directions and specifications of all affected departments and agencies of the City and all
applicable law, any property, public or private, to its original condition prior to the removal of
the Natural Gas Distribution System.
7.6 Time Is of the Essence. Whenever this Agreement shall set forth any time
for any act to be performed by or on behalf of the Company, such time shall be deemed to be of
the essence, and any failure of the Company to perform within the time allotted shall be sufficient
ground for the City to invoke any applicable provision of the City Code or this Agreement.
7.7 No Waiver of Rights. No course of dealing between the Company and the
City nor any delay on the part of the City in exercising any rights hereunder shall operate as a
waiver of any such rights of the City or acquiescence in the actions of the Company in
contravention of the City's rights, except to the extent expressly waived by the City in writing or
expressly provided for in the Franchise.
VIII. TRANSFER OF OWNERSHIP OR CONTROL.
8.1 Transfer of Franchise. This Franchise shall not be sold, Transferred,
leased, assigned or disposed of, including but not limited to, by forced or voluntary sale, merger,
consolidation, receivership or other means without the prior written consent of the City, and then
only under such reasonable conditions as the City may establish which may include but not be
limited to financial guarantees to the Natural Gas Distribution System.
8.2 Transfer Threshold. The Company shall promptly notify the City of any
actual or proposed change in, or Transfer of, or acquisition by any other party of, control of the
Company.
8.3 City Approval. Every change, Transfer, or acquisition of control of the
Company shall make the Franchise subject to cancellation unless and until the City shall have
consented thereto in writing. For the purpose of determining whether it may consent to such
change, Transfer, or acquisition of control, the City may inquire into the legal, financial,
character, technical, and other public interest qualifications of the prospective Transferee or
controlling party, or the terms and conditions of the proposed change, transfer, or acquisition of
control, and the Company shall assist the City in obtaining all required information. Failure to
provide all reasonable information requested by the City as part of said inquiry shall be grounds
for denial of the proposed change, Transfer or acquisition of control.
8.4 Signatory Requirement. Any approval by the City of Transfer of
ownership shall be contingent upon the prospective assignee becoming a signatory to the
Franchise.
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IX. FRANCHISE FEES.
9.1 The Company shall pay to the City a Franchise Fee of six percent (6%) of
the Gross Annual Revenues excluding bad debts, taxes and fees collected by the Company on
behalf of any governmental agency.
9.2 Franchise Fees in Addition to Other Taxes or Payments. Payment of the
Franchise Fee made by the Company to the City shall not be considered in the nature of a tax, but
shall be in addition to any and all taxes of general applicability which are now or may be required
hereafter to be paid by any Federal, State, or local law.
9.3 Acceptance by the City. Subject to applicable law, no acceptance of any
payment by the City shall be construed as a release or as an accord and satisfaction of any claim
that the City may have for further or additional sums payable as a Franchise Fee under this
Agreement or for the performance of any other obligation of the Company.
9.4 Failure to Make Required Payment. In the event that any Franchise Fee
or recomputed amount is not made on or before the dates specified herein, the Company shall pay
as additional compensation an interest charge, computed from such due date, at an annualized rate
equal to the commercial prime interest rate of the City's primary depository bank during the
period that such unpaid amount is owed.
9.5 Periodic Payments to Be Made. The Company shall make fee payments
of monies due hereunder within thirty (30) days of the end of each calendar quarter for Franchise
Fees collected during the preceding quarter. Accompanying said payment, the Company shall also
provide a written report of its Gross Revenues generated in the Franchise Area for the preceding
quarter's period.
9.6 City Right to Inspection. The City, at its discretion, shall have the right
to inspect the Company's Gross Annual Revenue records, to audit, and to recompute any fee
amounts. Inspections, audits or recomputations may be performed either by the City or an
independent firm selected by the City and qualified for such purposes. No audit of the Company's
records relating to Gross Annual Revenues shall take place later than thirty-six (36) months
following the close of each of the Company's fiscal years. Audits that result in payment of four
percent (4%) or more of Franchise Fees during the audit period, shall be at the expense of the
Company. Any additional amount due to the City as a result of the audit shall be paid within
thirty (30) Days of notice by the City, unless the Company disputes the results of the audit. The
Company agrees to meet with the City and will attempt in good faith to resolve any differences.
Thereafter, the additional amount due shall be subject to payment within thirty (30) days after said
additional amount is determined to be due by the Company and the City, or the City declares an
impasse in the negotiations with the Company.
9.7 Payments Due in Event of Termination or Expiration. In the event that
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the Company continues the operation of any part or all of the Natural Gas Distribution System
beyond the termination, revocation, or expiration of the Franchise granted herein, it shall continue
to pay to the City the Franchise Fee in the manner set forth in this Agreement. This section shall
not be construed to authorize the operation of the Natural Gas Distribution System beyond the
termination, revocation, or expiration of this Franchise.
9.8 Alternative Fee Contingencies. In the event that the Company's obligation
to pay a Franchise Fee is held invalid by a decision of any court of competent jurisdiction or due
to the actions of any legislative body, the Company shall negotiate with the City in good faith and
shall agree, if permissible under then applicable law, to provide compensation to the City in lieu
of the Franchise Fee. The amount of compensation shall, to the extent permitted by applicable
law, as amended from time to time, be comparable to that which the Company would pay as the
Franchise Fee under the terms of this Agreement and shall be passed through to the natural gas
customers in a manner similar to the Franchise Fee.
9.9 Other Fees and Taxes. To the extent that any federal or state law or
regulation may now forbid the City from assessing any type of fee or tax, upon repeal,
modification, or judicial/administrative interpretation of said law or rule that would permit the
City to assess said fee or tax, the City shall have the right to assess said fee or tax to the full
extent authorized by law; provided, that the City shall first consult with the Company. Upon such
occurrence, the parties shall meet and confer within ninety (90) Days of notice from the City to
in good faith negotiate Franchise provisions to implement the collection of said fee or tax.
X. FORFEITURE OR REVOCATION.
10.1 Grounds for Revocation. The City reserves the right to revoke any
Franchise granted hereunder, pursuant to the procedure in paragraph 10.4, and rescind all rights
and privileges associated with the Franchise in the following circumstances, each of which shall
represent a default and breach of this Agreement:
(a) Company has defaulted in the performance of any of the material
obligations under this Agreement or any provision of the City Code not conflicting with this
Agreement;
(b) Company has failed to provide or maintain in full force and effect
the liability and indemnification coverage as required herein;
(c) Company has violated a material provision of any orders or rulings
of any regulatory body having jurisdiction over the Company relative to this Agreement and any
regulatory ordinance of the City, and the Company fails to begin cure within five (5) business
days of notice from the City and to complete cure within a reasonable time after notice, as
determined by the City;
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(d) Company has committed any act of fraud upon the City or natural gas
customers;
(e) Company has acted grossly negligently, as defined by general law,
in maintaining or operating the Natural Gas Distribution System provided in this Franchise;
(f) Company has become insolvent, is unable or unwilling to pay its
debts, or is adjudged bankrupt;
(g) Company has made a material misrepresentation of fact in the
application for or negotiation of the Franchise or any extension or renewal thereof; and
(h) Company has failed to pay the Franchise Fee in the mariner provided
in this Agreement.
10.2 Effect of Circumstances Beyond Control of Franchisee. The Company
shall not be declared at fault or be subject to any sanction under any provision of this Agreement
in any case, in which performance of any such provision is prevented for reasons beyond the
Company's control. For the purposes of this Agreement, causes or events beyond the Company's
control shall include, without limitation, acts of God, floods, earthquakes, landslides, hurricanes,
fires and other natural disasters, acts of public enemies, riots or civil disturbances, sabotage,
strikes and restraints imposed by order of a governmental agency or court. A cause or event shall
not be deemed to be beyond the Company's control if committed by a corporation or other
business entity in which the Company holds a controlling interest whether held directly or
indirectly, when such fault is due to Company's financial inability to perform or comply,
economic hardship, or misfeasance, malfeasance or nonfeasance by any of the Company's
directors, officers, employees or contractors or agents.
10.3 Effect of Pending Litigation. Pending litigation or any appeal to any
regulatory body or court having jurisdiction over the Company shall not excuse the Company from
the performance of its obligations under this Agreement, unless specifically provided for by court
order or by the regulatory body having jurisdiction over such matters. Failure of the Company
to perform such obligations because of pending litigation or petition may result in forfeiture or
revocation pursuant to the provisions of this section.
10.4 Procedure Prior to Revocation. The City Manager shall notify the
Company in writing of the exact nature of the alleged violation constituting a ground for
termination and give the Company thirty (30) days, or such greater amount of time as the City
Manager may specify, to correct such violations or to present facts and arguments to the City
Manager to refute the alleged violation ( "Cure Period "). If by the end of the Cure Period the
Company does not remedy the violation or convince the City Manager there is no violation, the
City Manager shall schedule a public meeting of the City Council for purposes of addressing the
alleged violation. The Council meeting shall be held within thirty (30) days from the expiration
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of the Cure Period. The City Manager shall promptly provide the Company written notice of the
Council meeting. During the Council meeting, the City Manager, Company, and all interested
parties shall have the right to be heard in person and through counsel, present evidence, and cross
examine adverse witnesses. At the conclusion of the Council meeting, the Council may suspend
or revoke the Franchise, if it determines that there are sufficient grounds which warrant such
action; otherwise, the Franchise remains in full force and effect. The Company shall not be held
in default nor suffer any penalties where non - compliance or default is caused by an event beyond
the Company's control, as stated in Section 10.2. The Company shall have the right of review
by a court of competent jurisdiction upon any determination by the City Council to suspend or
revoke this Franchise.
XI. LIABILITY AND INSURANCE.
11.1 Certificate of Insurance. In no event later than sixty (60) days after the
effective date of this Agreement and thereafter continuously throughout the duration of this
Agreement and any extensions or renewals thereof, the Company shall furnish to the City,
certificates of insurance, approved by the City, for all types of insurance required under this
section. Failure to furnish said certificates of insurance in a timely manner shall constitute a
failure to faithfully comply with this Agreement. At the City's request, the Company shall furnish
certificates of insurance which are in effect from time to time
11.2 No Liability Limit. Neither the provisions of this article or any damages
recovered by the City hereunder, shall be construed to limit the liability of the Company for
damages under this Agreement.
11.3 Endorsement. All insurance policies maintained pursuant to this
Agreement shall contain an endorsement in substantially the following form:
It is hereby understood and agreed that this insurance policy may
not be modified or canceled by the insurance company nor the
intention not to renew be stated by the insurance company until
thirty (30) days after receipt by the City of Cape Canaveral City
Manager by certified mail, of a written notice of such intention to
cancel or not to renew.
11.4 State Institution. Except for self - insured policies, all insurance policies
provided pursuant to this Agreement shall be written by companies authorized by the Florida
Insurance Commissioner to do business in the State of Florida as an insurance company.
11.5 Named Insured. The City shall be an additional named insured for all
insurance policies written pursuant to this Agreement.
11.6 Changes in Policy Limits. To offset the effects of inflation and to reflect
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changing liability limits, all of the coverage, limits, and amounts of the insurance provided for
herein are subject to reasonable increases at the end of every three (3) year period of this
Agreement, applicable to the next three (3) year period, at the City's discretion.
11.7 Commercial General Liability Insurance. The Company shall maintain
throughout the term of this Agreement, general liability insurance insuring the Company in the
minimum of:
(a) $2,000,000 for property damage single limit;
(b) $3,000,000 single limit liability for personal bodily injury or death
to any one person; and
Such general liability insurance must include coverage for all of the
following: comprehensive form, premises operations, explosion and collapse hazard, underground
hazard, products /completed operations hazard, contractual insurance, broad form property
damage, and personal injury.
11.8 Automobile Liability Insurance. The Company shall maintain throughout
the term of this Agreement, automobile liability insurance for owned, non - owned, or rented
vehicles in the minimum amount of:
(a) $2,000,000 single limit liability for bodily injury and consequent
death per occurrence; and
(b) $1,000,000 for property damage per occurrence.
11.9 Worker's Compensation. The Company shall maintain throughout the
term of this Agreement, worker's compensation in the minimum amount of the statutory limit for
worker's compensation, as amended from time to time.
XII. INDEMNIFICATION AND HOLD HARMLESS.
12.1 Indemnity and Hold Harmless. The City shall in no way be liable or
responsible for any accident or damage caused by the Company that may occur in the
construction, operation, or maintenance by the Company of the Natural Gas Distribution System,
and the acceptance of this Franchise on the part of the Company shall be deemed an Agreement
on the part of the Company to fully indemnify, defend and hold harmless the City and its officers,
boards and council, contractors, and City employees against the full amount of any (i) claims, (ii)
liabilities, (iii) actions, (iv) suits, (v) proceedings, (vi) payments, (vii) assessments, (viii)
judgments, (ix) losses, (x) damages, (xi) costs and (xii) expenses (including interest, penalties and
reasonable attorneys' fees and disbursements) claimed against the City in connection with the
following:
(a) To persons or property, in any way arising out of or through the acts
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or omissions of the Company, its servants, agents or employees; and
(b) Arising out of the Company's failure to comply with the provisions
of any federal, state, or local laws, ordinances, or regulations applicable to the Company in its
business hereunder.
12.2 Condition. The foregoing indemnity is conditioned upon the City giving
the Company prompt notice of any claim or the commencement of any action, suit or other
proceeding covered by the provisions of this section. Nothing herein shall be deemed to prevent
the City from cooperating with the Company and participating in the defense of any litigation by
its own counsel at its own costs and expense.
12.3 Bond. Company shall execute and file with the Clerk of the City its bond
in the penal sum of Fifteen Thousand and No /100 Dollars($15,000.00), in satisfactory form,
guaranteeing its performance of all obligations under this Agreement which bond shall be enlarged
or reviewed from time to time as required by the City Council.
IIIII. DESIGN AND CONSTRUCTION PROVISIONS.
13.1 Authorization to Commence Construction and Application Procedures.
Prior to the installation or erection of any pipelines, towers, poles, conduits, fixtures, or other
appurtenances thereto, other than minor or emergency excavation and maintenance, or the upgrade
or rebuild of the Natural Gas Distribution System, the Company shall first submit to the City for
review a concise description of the facilities proposed to be maintained, erected, removed, or
installed, including engineering drawings, if required by the City. No erection, excavation, or
installation of any part of the Natural Gas Distribution System, or any other appurtenances thereto,
shall be commenced by any person until proper permits have been received from the City, except
in the event of an emergency.
13.2 City Maps. The City does not guarantee the accuracy of any maps showing
the horizontal or vertical location of existing substructures or utilities.
13.3 Compliance with Construction and Technical Standards. The Company
shall install or erect any pipelines, towers, poles, conduits, fixtures, or other appurtenances
thereto, in accordance with commonly accepted good engineering practices and technical
standards. The Company shall comply with all applicable construction and technical codes
adopted by local, state, and federal law.
13.4 Quality of Construction. Construction, installation, reconstruction,
operation, and maintenance of the Natural Gas Distribution System shall be performed in an
orderly and workmanlike manner, in accordance with then current technological standards. The
Company shall use its best efforts to install or erect the Natural Gas Distribution System parallel
with existing other utilities located in the rights -of -way. Nothing herein shall preclude
underground installation.
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13.5 Underground Installation.
(a) All installations of the natural gas transmission pipelines shall be
underground unless otherwise approved by the City in writing. No paved street, alley or other
paved Right -of -Way shall be cut unless approved by the City in writing, except in case of
emergency.
(b) Prior to performing any underground construction, the Company
shall use its best efforts to locate, in advance, any water, sewage, gas, electric, cable, drainage,
or other utility lines, including compliance with Chapter 556, Florida Statutes, to the extent
applicable. Where any damages or alterations occur to said utility lines in the public right -of -way
as a result of construction, reconstruction, maintenance, or removal of the Natural Gas
Distribution System by the Company, its agents or independent contractors, the cost of such
repairs including all services and materials will be the responsibility of the Company.
13.6 Construction Notice. Except with regard to routine maintenance and
emergency circumstances, the Company shall give appropriate notice to the City and residents
within a reasonable period of time of proposed construction, reconstruction, excavation, laying
or stringing of the Natural Gas Distribution System under streets or on poles, but in no event shall
such notice be given less than five (5) business days before such commencement.
13.7 Interference with Persons, ersons, Public and Private Property, and Utilities.
The Company's Natural Gas Distribution System and all appurtenances shall be located, erected
and maintained so that such system shall:
(a) Not endanger or interfere with the health, safety or lives of persons;
(b) Not interfere with any improvements which the City, county or state
may deem proper to make;
(c) Not interfere with the free and proper use of public rights -of -way,
alleys, bridges, easements or other public property, except to the minimum extent possible during
actual construction or repair;
(d) Not interfere with the rights and reasonable convenience of private
property owners, except to the minimum extent possible during actual construction or repairs; and
(e) Not obstruct, hinder or interfere with any gas, cable, electric, water,
wastewater, reclaimed water, stormwater drainage, telephone, or other utility facilities located
within the City.
13.8 Restoration to Prior Condition. In case of any disturbance of pavement,
sidewalk, driveway or other surfacing, the Company shall, at its own cost and expense, and in a
manner approved by the City, replace and restore all paving, sidewalk, driveway, landscaping,
or surface of any street or alley disturbed, in as good a condition as before said work was
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commenced and in a good workmanlike, timely manner in accordance with standards for such
work set by the City or the govemmental entity having operational and maintenance responsibility
for the Public Right -of -Way. Unless otherwise approved by the City Manager, such restoration
shall be undertaken within ten (10) business days after the damage is incurred and shall be
completed as soon as possible thereafter.
13.9 Private Property. The Company shall promptly repair or replace all
private property, both real and personal, damaged or destroyed as a result of the construction,
installation, operating or maintenance of the Natural Gas Distribution System at its sole cost and
expense.
13.10 Progress Reports. For work involving Public Right -of -Way excavation for
other than in the event of an emergency, prior to commencing construction, the Company shall
provide the City with a schedule for completion of said work and keep the City informed of the
construction progress as reasonably necessary
XIV. BOOKS AND RECORDS AVAILABLE TO CITY.
14.1 Records. With advance written request, the City shall have the right to
inspect at any time during normal business hours, all books, records, maps, revenue statements,
service complaint logs, performance test results and other like materials of the Company which
relate to the operation and enforcement of the Franchise within the City. Access to the
aforementioned records shall not be denied by the Company on the basis that said records contain
"proprietary" information, unless applicable law exempts said records.
14.2 Review. The Company shall permit, during the Company's normal business
hours, any duly authorized representative of the City to examine, at the City's discretion, any and
all maps and other records kept or maintained by the Company or under its control concerning the
operations, affairs, transactions or property of the Company relative to the Natural Gas
Distribution System operations in the City. The examination shall take place at the Company's
place of business.
14.3 Reports to Be Filed. The following financial reports for the Franchise area
shall be submitted to the City:
(a) An annual report prepared by the Company or the parent company
of the Company shall be provided annually at the time said report is published.
(b) A quarterly financial report showing the Company's quarterly gross
revenues and quarterly franchise fees collected in the Franchise Area, pursuant to Paragraph 9.5
herein.
14.4 Other Records. The City may impose reasonable requests for additional
information, records and documents from time to time, and the Company shall produce said
records within ten (10) business days, so long as such request relates to the City's enforcement
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abilities under this Agreement or the City's ordinances or resolutions.
XV. PREFERENTIAL OR DISCRIMINATORY PRACTICES PROHIBITED.
All services rendered and all rules and regulations adopted by the Company shall
have general application to all persons and shall not subject any person to prejudice or
disadvantage on account of race, gender, religion, origin, or ethnicity. The Company shall not
deny Natural Gas service to any group of potential residential customers within the City because
of the income of the residents of the area in which such group resides. The Company shall not
charge customers different rates for Natural Gas service for the same class or type of service.
XVI. SERVICE STANDARDS
16.1 Operation. The Company shall maintain and operate its Natural Gas
Distribution System and render efficient service in accordance with the rules and regulations as
are, or may be, set forth by the City Council of the City of Cape Canaveral as provided in this
Franchise and by the Public Service Commission.
16.2 Planned Downtime. The Company shall provide reasonable notice to all
customers who will be affected by an interruption of service for the purpose of repairs to, and
installation of, the Natural Gas Distribution System to customers.
XVII. MISCELLANEOUS PROVISIONS.
17.1 No Joint Venture. Nothing herein shall be deemed to create a joint venture
or principal -agent relationship between the parties, and neither party is authorized to, nor shall
either party act toward third persons or the public in any manner which would indicate any such
relationship with the other.
17.2 Entire Agreement. This Agreement and all City Code provisions
regulating the distribution, transmission, or sale of Natural Gas are incorporated herein by
reference, represent the entire understanding and agreement between the parties hereto with
respect to the subject matter hereof, and supersede all prior oral negotiations between the parties.
This Agreement may be amended, supplemented, modified, or changed only by adoption of an
Ordinance by the City and execution of an instrument agreeing to said amendment,
supplementation, modification, or change in the terms hereof by the Company.
17.3 Provisions Cumulative. The rights and remedies reserved to the City by
this Agreement are cumulative and shall be in addition to and not in derogation of any other rights
or remedies which the City may have with respect to the subject matter of this Agreement subject
to applicable law, and a waiver thereof at any time shall have no effect on the enforcement of such
rights or remedies at a future time.
17.4 Notices. All notices from the Company to the City pursuant to this
Agreement shall be sent to: City Manager, City of Cape Canaveral, Florida, 105 Polk Avenue,
15
Cape Canaveral, Florida 32920. All notices to the Company shall be sent to Michael A.
Palecki, NUI Corporation, Southem Division, 955 East 25th Street, Hialeah, Florida 33013, and
to Randall Harris, NUT Company, 4180 South U.S. Highway 1, Rockledge, Florida 32955. The
names and address in this section may be unilaterally amended by either party at anytime by
giving written notice to the other party.
17.5 Captions. Captions to sections through this Agreement are solely to
facilitate the reading and reference to the sections and provisions of the Agreement. Such captions
shall not affect the meaning or interpretation of the Agreement.
17.6 Severability. If any section, subsection, sentence, clause, phrase, or
portion of this Agreement is, for any reason, held invalid or unconstitutional by any court of
competent jurisdiction, such portion shall be deemed a separate, distinct, and independent
provision. Such holding shall not affect the validity of the remaining portions of this Agreement.
17.7 City's Rights of Intervention. The Company agrees not to oppose
intervention by the City if any suit or proceeding to which the Company is a party, concerning
or involving the Company and the City's rights under this Agreement.
17.8 Headings; Entire Agreement; Governing Law. The headings contained
in this Agreement are for reference purposes only and shall not affect in any way the meaning and
interpretation of this Agreement. This Agreement constitutes the entire agreement and supersedes
all prior agreements and understandings, both written and oral, among the parties with respect to
the subject matter hereof. This Agreement shall be governed in all respects, including validity,
interpretation and effect, by the laws of the State of Florida.
17.9 Jurisdiction and Venue. The parties hereto agree that the state or federal
courts located in the State of Florida shall have the exclusive jurisdiction over the parties and the
subject matter of any litigation between the parties arising hereunder. For purpose of state court
action, venue shall lie within Brevard County, Florida, and for the purpose of federal court action,
venue shall lie within Orlando, Florida. THE COMPANY HEREBY WAIVES RIGHT TO
TRIAL BY JURY IN ANY ACTION BROUGHT ON THIS AGREEMENT OR ON ANY
MATTER ARISING IN CONNECTION WITH THIS AGREEMENT.
17.10 Attorney's Fees. In the event of any litigation or arbitration arising out of
this Agreement, the prevailing party shall be entitled to an award of its reasonable attorney's fees
and court costs incurred in such action.
17.11 Franchise Costs. The Company agrees to pay the public advertising costs
incurred by the City in granting this Franchise or any renewal or assignment thereof.
17.12 Renegotiation Clause. In the event of a material change in Federal or State
law(s) or Public Service Commission rule(s) or in the event the Company enters into a franchise
or other agreement with Brevard County or any other City within Brevard County which provides
the County or other City more favorable Franchise Fees than provided to the City under this
16
Franchise, the City and the Company mutually agree to renegotiate those particular terms of this
Franchise affected by changes in said law(s) rule(s), or franchises or agreements. This Franchise
shall remain in full force and effect until any negotiated amendments have been duly approved by
both the City and the Company, however, if the Company fails to negotiate said amendments in
good faith and in a timely manner, the City shall have the right to terminate this Franchise
pursuant to paragraph 10.4 herein.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the day and year first above written.
CITY:
CITY OF CAPE CANAVERAL,
WITNESSES: FLORIDA
_44-4 B / ,o
s hn K. Porter, MAYOR
COMPANY:
WITNESSES: NATIONAL UTILITY INVESTORS
4 • Zeie,,h‘ By: ,i A
6.r)
STATE OF FLORIDA
COUNTY OF BREVARD
The foregoing instrument was acknowledged before me this /S day of
1997, by JOHN K. PORTER, Mayor of the CITY OF CAPE CANAVERAL, O A, a
Florida Municipal Corporation, on behalf of the aforesaid municipal corporation, who is /is not
personally known to me, or has produced as identification.
zrYt.
NOTA Y PUBLIC
; E SANDRA H. SIMS
17 . ,.. MY COMMISSION # CC 48356.F
) y ' ' EXPIRES: July 24, 1999
1 ' ' r;, , , Bonded Tin NMI Public IhldeMfitets '
x - ` `
3
STATE OF FLORIDA
COUNTY OF BRED 1)11.
The foregoing instrument was acknowl:, : -e before me this
by 1.3-1 3 I �ay of �Cc.(' ,
1997, y (k e � ` k 3 , r S * (s( of NATIONAL UTILITY
INVESTORS, do behalf of sail' corporation, who is /is no ersonall kno
�— y � to me, or has
ca
NOTARY PUBLIC
A`A�'' Rachel E. Turner MY COMMISSION # CC540685 1.1 WIRES
N+c
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