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85-O-4r, ORDINANCE NO. 85-0-4 AN ORDINANCE. OF THE CITY COUNCIL OF THE CITY OF EDGE - WATER, FLORIDA, GRANTING TO SOUTH FLORIDA NATURAL GAS CO., A FLORIDA CORPORATION, ITS SUCCESSORS AND ASSIGNS, A FRANCHISE FOR THE OPERATION OF A GAS DISTRIBUTION SYSTEM IN THE CITY OF EDGEWATER, FLORIDA: IMPOSING_ PROVISIONS AND CONDITIONS RELATING THERETO; PROVIDING FOR FRANCHISE PAYMENTS; PROVIDING FOR PUBLICATION OF THIS ORDINANCE BY TITLE ONLY; REPEALING ALL ORDINANCES OR PARTS OF ORDINANCES IN CONFLICT HEREWITH; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Edgewater, Florida (herein called "Grantor"), is vested by the Constitution of Florida with the property right to own and operate utility systems as a revenue producing enterprise for municipal purposes, or to grant a franchise thereof to an investor owned public utility company, and as an incident thereto is further vested with the property right in its streets and public ways for the use of transmission and distribution systems; and WHEREAS, Part 1, Sections 115 through 124, Charter, Code of Ordinances of the City of Edgewater, Florida, regulates the granting of franchises for public utilities by the Grantor and requires certain provisions and conditions be incorporated therein, and WHEREAS, SOUTH FLORIDA NATURAL GAS CO., a Florida corpo- ration, (herein called "Grantee"), has heretofore provided gas service to its customers within the corporate limits of the Grantor under the terms and provisions of a franchise agreement which expires on November 4, 1984, and the Grantee has petitioned the Grantor for the grant of a new franchise as herein provided; and WHEREAS, as compensation in exchange for the specific property rights relinquished by the Grantor to the Grantee, the Grantor and Grantee have negotiated monthly payments by the Grantee according to a formula as herein provided, and the City Council finds that the formula for such payments provide reason- able compensation for the specific property rights relinquished, and is in the interest of the City of Edgewater; NOW, THEREFORE, BE IT ENACTED BY THE PEOPLE OF THE CITY OF EDGEWATER, FLORIDA: Section 1. Grant of Property Rights. Subject to the terms and conditions herein and the provisions in Part I, Sections 115 through 124, Charter, Code of Ordinances, City of Edgewater, (of the effective date of this ordinance), there is hereby granted to Grantee, its successors and assigns, the following; (a) The non-exclusive right, privilege or franchise to construct, maintain, and operate gas plants, works, holders, and all necessary or desirable appurtenances for a terms of thirty years from the date of acceptance hereof for the sale of natural gas in the City of Edgewater, Florida, as the city limits of Grantor may from time to time be extended; subject to such regulation as Grantor may from time to time prescribe. (b) The non-exclusive right, privilege and franchise during the term of this franchise, to construct, maintain, equip and operate; in, under, over and across the present and future streets, alleys, bridges, easements, and other public places of the City of Edgewater, Florida, gas mains and gas lines with all appurtenant structures, in accordance with established practice with respect to gas mains, trans- mission lines, and supply pipes, and necessary or desirable appurtenances (including service connections, curb boxes, manholes, regulators, drip pots, measuring equipment and control devices) which said facilities are to be used for the purpose of transporting, distributing, supplying, and selling manufactured and/or natural gas to Grantor and its successors, the present and future inhabitants thereof, and persons and corporations in and beyond the limits thereof, for light, heat, power and other purposes; (c) Grantor covenants that it will not engage in the business of distributing and selling or disbursing, gas energy during the term of this franchise or any extension thereof in competition with the Grantee, its successors and 2 _ s assigns, and this grant includes the Grantor's right to own and operate the gas utility system in the municipality of Edgewater as a revenue producing enterprise for municipal purposes within the area served by Grantee during said term; (d) The Grantor covenants that it will not, during the term of this franchise, for reasons other than those set out in Section 9 hereof, terminate this franchise; provided, however, that this covenant shall not be construed to prevent the Grantor from acquiring said property by condem- nation proceedings, or in any other lawful mode, after termination of this franchise by expiration of the term hereof or after forfeiture as provided in Section 9, hereof. Section 2. Extension by Annexation. Upon the annexation of any territory to the City of Edgewater, Grantee's facilities may be extended as located within such annexed territory upon the streets, alleys or public grounds thereof, and shall thereafter be subject to all the terms of this franchise. Section 3. Alienation Limitation. This grant and franchise shall not be leased, assigned or otherwise alienated without the express written consent of the Grantor. Section 4. Control of Public Property Reserved. (a) This grant and franchise shall be subject to the right of the Grantor to -control at all times the distri- bution of space, in, over and across of under all streets, alleys, or public grounds, occupied by the Grantee's fix- tures, and, when in the opinion of the Grantor the public interest so requires, such fixtures may be caused to be reconstructed, relocated, altered or discontinued; and Grantor shall at all times have the power to pass all regulatory ordinances affecting such utilities which, in the opinion of the Grantor, are required in the interest of the public health, safety, or accommodation. The reconstruc- tion, relocation, alteration or discontinuance of Grantee's fixtures shall be at the expense of Grantee unless reim- bursement is specifically allocated for Grantee's benefit in - 3 - a state or federal grant, or otherwise authorized by Grantor. (b) The Grantee's facilities shall be so located or relocated and so erected as not to interfere with traffic over the streets, alleys, bridges and public places within the City of Edgewater, and with reasonable egress from and ingress to abutting property. The location or relocation of all facilities shall be under the supervision of and with the approval of the City Council, but such supervision shall not unreasonably interfere with the proper operation of Grantee's facilities and service. When any portion of a street, alley, or public place is excavated by Grantee in the location of relocation of any of its facilities, the portion of the street, alley, or public place so excavated shall be replaced by the Grantee as its expense and in as good condition as it was at the time of such excavation within such reasonable time as may be required by the City Council. Before Grantee makes any excavation it shall make application to Grantor for permit. Section 5. Protection of Grantor. Grantor shall in no way abe liable for or responsible for any accident or damage that may occur in the construction, operation, or maintenance by Grantee of its facilities hereunder, and the acceptance of this ordinance shall be deemed an agreement on the part of the Grantee, to indemnify Grantor and hold it harmless against any and all liability, loss, cost, damage or expense, which may accrue to Grantor by reason of the neglect, default, or misconduct of Grantee in the construction, operation, or maintenance of its facilities hereunder. Section 6. Grantee's Rate, Rules and Regulations. All rates, rules and regulations established by Grantee from time to time shall at all times be reasonable and Grantee's rates for energy shall at all times be subject to such regulations as may be provided by law. - 4 - Section 7. Franchise Payments. In consideration for the granting of this franchise and as compensation for the specific property rights relinquished to the Grantee by the Grantor, the Grantee, its successors and assigns, shall pay to the Grantor, or its successors, an amount which added to the amount of all taxes as assessed, levied, or imposed (without regard to any discount for early payment or any interest or penalty for late payment), licenses, and other impositions levied or imposed by the Grantor upon the Grantee's gas distribution system property, business for the preceding tax year will equal 68 of the Grantee's revenue from the sale of gas to non-interruptable customers, excluding Governmental Agencies, within the corporate limits of the Grantor. Said payments to commence the date of furnishing of any gas to any customer under the provisions of this franchise. Said payments shall be made monthly and within thirty days after the end of each month. For the purpose of ascertaining the gross receipts upon which payments shall be made, as aforesaid, such part of the books of said company as pertain to the revenues of the territory hereinabove described shall be open for inspection by any officer or such other person as may be appointed for that purpose by the City Council of said City. Section 8. Examination of Books. Grantor may, at its option and upon reasonable notice to Grantee, examine the books and records of Grantee as such books and records relate to the calculation of the franchise payments to be made hereunder. The examination shall be made at Grantor's expense and during the regular hours of business at the Grantee's principal place of business where such books and records shall be made available. Section 9. Forfeiture. The failure on the part of the Grantee upon reasonable notice from Grantor to reasonably comply with any of the conditions of this ordinance, or Grantee's failure otherwise to provide the service for which this franchise is given, shall be grounds for forfeiture of this franchise; provided that nothing herein shall prevent Grantee from seeking - 5 - 8 appropriate remedy in a court of competent jurisdiction (subject to appellate review) to ascertain whether compliance with Grantor's request is required by this ordinance and whether such non-compliance can be grounds for forfeiture. Upon a finding that compliance is required and can result in forfeiture, it is the intention of the parties that the court shall allow Grantee a reasonable time to correct the deficiency before forfeiture shall become effective. Section 10. Acceptance by Grantee and Effective Date. This franchise shall not be effective until Grantee shall have exe- cuted its acceptance on a duplicate hereof and filed the same with the City Clerk within thirty days from the date of passage of this ordinance. This ordinance shall take effect on the date upon which Grantee files its acceptance. Section 11. That all ordinances or parts of ordinances and all resolutions or parts of resolutions in conflict herewith be and the same are hereby repealed. Section 12. If any section, part of a section, paragraph, clause, phrase, or word of this ordinance is declared invalid, the remaining provisions of this ordinance shall not be affected. Section 13. This ordinance shall take effect immediately upon its adoption by the City Council of the City of Edgewater, Florida, and approval as provided by law. This ordinance was introduced by This ordinance was read on first reading and passed by a vote of the City Council of the City of Edgewater, Florida, at a A 0 Q..I'll meeting of said Council held on the 0,1 ` day of 1985, and approval as provided by law. n The s cond reading of this ordinance to be at a meeting of the City Council of the City of Edgewater, Florida, to be held on the L ` k day of t , 1985. G ROLL CALL VOTE ON ORDINANCE NO. 85-0-4 AS FOLLOWS: FIRST READING: -9. 1 JwM N P5 mayor Cozen One V nci man-Z ne Two Counci man -Zory T ree iJ'/F /fir' C ci man -Zone Your SECOND READING: Mayyr Counc man- e MrileJ yr 6✓Z nci man -Zone Four ATTEST: City Clerk This Ordinance read and adopted on second reading at a meeting of the City Coun�AJ l of the City of Edgewater, F10r da, and authenticated this q_ day of---Uz , 1985. Mayor - 7 - ACCEPTANCE BY GRANTEE The foregoing ordinance granting to South Florida Natural Gas Company, its successors and assigns, certain rights, priv- / / ileges, grants and franchises in the City of , Florida, is accepted according to the terms and conditions thereof this Mday of , 1985. SOUTH FLORyIDA NATURAL GAS COMPANY President Attest: Secretary FILING The foregoing Acceptance by Grantee is filed in the office of the City�1 Clerk of the City of Edgewater, Florida, this A611 day of1985. City clerk