O90-08 ORDINANCE NO. 90-8
AN ORDINANCE OF THE CITY COMMISSION OF
THE-CITY OF BOYNTON BEACH,~ FLORIDA,
RELATING TO THE RENEWAL OF A GAS
FRANCHISE WITHIN THE CITY; GRANTING TO
FLORIDA PUBLIC UTILITIES COMPANY, ITS
SUCCESSORS AND ASSIGNS A GAS FRANCHISE;
IMPOSING PROVISIONS AND CONDITIONS
RELATING THERETO; PROVIDING A CONFLICTS
CLAUSE; PROVIDING A SEVERABILITY CLAUSE;
PROVIDING AN EFFECTIVE DATE; AND FOR
OTHER PURPOSES.
W/{EREAS, the City Commission of the City of Boynton
Beach is empowered to grant a private company or corporation
the privilege or franchise of operating utilities services
pursuant to Chapter 180, Florida Statutes; and
W~EREAS, Florida Public Utility Company is a Florida
Corporation engaged in the construction, operation and
maintenance of gas plants and distrubition systems for
domestic, municipal and industrial uses; and
W~RREAS, the City Commission finds that it is in the
best public interest to grant a franchise to Florida Public
Utilities Company to permit that Company to engage in the
construction, operation and maintenance of gas plants and
works and all necessary or desirable appurtenances thereto.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION
OF THE CITY OF BOYNTON BEACH, FLORIDA, THAT:
Section 1. The City of Boynton Beach, a municipal
corporation of the State of Florida (he~e'i~n~fte.r~'-.referred to
as "Grantor"), hereby grants to FLORIDA PUBLIC UTILITIES
COMPANY, a corporation of the State of Florida (hereinafter
referred to as "Grantee"), its successors and assigns, for
the term of thirty (30) years, beginning the first day of
the first full calendar month following the date of filing
by the GRANTEE of acceptance of this franchise grant, the
right, privilege and authority or franchise to construct or
otherwise acquire and to own, maintain, equip and operate
plants and works, and all necessary or
appurtenances thereto, for the manufacture,
Purchase, transmission and distribution of
desirable
generation,
artificial,
natural and/or mixed gas (herein referred to generally as
"gas"), including the right without the payment by GRANTEE
of any tax, assessment or charges .... therefor to construct,
lay, extend, maintain, renew, remove, replace, repair, use
and operate gas pipes and gas mains, and all appurtenances
and appendages thereto, in, under, on or across the present
and future public streets; avenues, alleys, highways,
bridges, easements and other public places within the
present or any future corporate limits of the GRANTOR or its
successors, and to persons and corporations inhabitants
thereof, as well as to persons or corporations beyond the
present or future corporate limits thereof, but nothing
herein contained shall relieve GRANTEE from meeting all
applicable requirements of the GRANTOR'S building Code
(which are not in conflict with the Florida Administrative
Code and/or the Code of Federal Regulation~ requirements)
and payment of any fees, licenses or ad valorem taxes.
Section 2. GRANTEE'S facilities shall be so located
or relocated and so erected as to interfere as little as
possible with traffic over said streets, avenues, alleys,
highways, bridges, easements and other public places, and
with reasonable egress from and ingress to abutting
property. The location or relocation of all facilities
shall be made under the supervision and with the approval of
such representatives as the governing body of GRANTOR may
designate for the purpose, but not so as unreasonably to
interfere with the proper operation of GRANTEE'S facilities
and service. When any portion of the GRANTOR'S property is
excavated or disturbed by GRANTEE in the location or
relocation of any of its facilities, the portion of the
GRANTOR'S property so excavated shall, within a reasonable
time and as early as practicable after such excavation, be
replaced by the GRANTEE at its expense and in as good
condition as it was at the time of such excavation, and, in
addition, such work shall be done only in the manner and
pursuant to the regulations established by the ordinances of
the GRANTOR. Upon failure of GRANTEE to do so after twenty
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(20) days notice in writing shall have been given to said
GRANTEE by GRANTOR, the GRANTOR may repair such portion of
~the GRANTOR'S property that may have been excavated or
disturbed by GRANTEES, and the cost of same shall paid by
GRANTEE. Nothing in this section shall be construed to make
the GRANTOR liable to the GRANTEE for any cost or expense in
connection with the construction, reconstruction or
relocation of the GRANTEE'S facilities in streets, alleys,
bridges, and public places of the GRANTOR made necessary by
widening, paving, or otherwise improving such streets,
alleys, bridges and public places, except that the GRANTEE
shall be entitled to reimbursement of such costs and
expenses from funds available from sources other than the
GRANTOR as may be provided by law.
Section 3. At all times during the term of this
franchise GRANTEE shall promptly and without discrimination
furnish an adequate supply of gas of standard quality and
pressure to GRANTOR and its successors, and to persons,
corporations and inhabitants thereof who request the same
and agree to abide by GRANTEE'S reasonable rules and
regulations, and shall acquire, construct, maintain, equip
and operate all necessary facilities for the manufacture,
generation, purchase, transmission, supply and distribution
of gas for the benefit and convenience of GRANTOR and its
inhabitants. In any case where there is interruption or
impairment of service, or failure to supply gas or pressure,
GRANTEE shall promptly remedy such condition; supply gas or
pressure, GRANTEE shall promptly remedy such condition;
provided that any interruption or impairment of service,
resulting from a strike, accident, an act of God, or other
cause beyond the control of the GRANTEE shall, if remedied
within a reasonable time period agreed to by the parties
hereto, not constitute grounds for revoking and cancelling
any rights hereunder.
Section 4. GRANTEE shall have the right to adopt
and enforce rules and regulations with respect to the
extension, initiation and rendering of gas service,
including rules providing for the discontinuance of service
to any customer for nonpayment .of bills when due, ~or for
failure to comply with the GRANTEE'S other rules and
regulations. All rates for gas and rules and regulations
established by GRANTEE from time to time shall be those
prescribed and approved by the Florida Public Service
Commission.
Section 5. GRANTOR, and its officers, employees and
agents shall not be liable or responsible for any accident
or damage that may occur in the construction, operation,
conduct or maintenance by the GRANTEE of its facilities or
services hereunder, and the acceptance of this franchise
grant shall be deemed an agreement on the part of the
GRANTEE to protect, defend and indemnify the GRANTOR, and
its officers, employees and agents and hold it harmless
against any and all liability, loss, cost, damage or expense
which may accrue to the GRANTOR by reason of the negligence,
default, misconduct or otherwise of the GRANTEE in the
construction, operation,
facilities or services
negligence of the GRANTOR.
conduct or maintenance of its
hereunder, excepting only the
GRANTEE acknowledges the receipt
of sufficient consideration to support this indemnification.
Section 6. GRANTEE shall carry in full force and
effect during the entire term of this Agreement, and any
extension thereof, the following insurance coverages: (a)
Comprehensive General Liability Insurance, including
products, contractual, an hazard, with a minimum combined
single limit of One Million Dollars ($1,000,000.00) with
specific ~provisions for the protection and indemnification
of the GRANTOR with respect to any and all claims of any
persons suffering injury, loss or damage to person or
property by reason of the Grantee's negligence, default,
misconduct or otherwise in the construction or operation of
GRANTEE'S gas system within the corporate limits of GRANTOR,
excepting only those claims resulting from the negligence of
GRANTOR.
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Current insurance certificates shall be submitted
to the GRANTOR by GRANTEE, and each insurance policy shall
contain a provision whereby the company executing the same
shall endeavor itself to notify the GRANTOR in writing at
least thirty (30) days before any cancellation of such
policy is to become effective. (b) Workers Compensation
Insurance and Comprehensive Automobile Liability Insurance
as required under the Florida Statutes for the benefit of
the employees of GRANTEE.
Section 7. Within thirty (30) days after the first
anniversary date of this grant and within thirty (30) days
after each succeeding anniversary date during the existence
of this grant, the GRANTEE, its successors and assigns,
shall pay or have paid to the GRANTOR or its successors a
privilege tax equal to the amount by which six percent (6%)
of its gross revenues (gross revenues being the amount
collected less charge-off for uncollectible accounts and
adjustments) from the sale of gas to residential and general
service commercial customers within the corporate limits of
GRANTOR for the twelve calendar months preceding the
applicable anniversary date, shall exceed the amount of any
other taxes, licenses or other impositions levied or imposed
by GRANTOR against GRANTEE'S property, business or
operations for the tax year preceding the beginning of the
applicable privilege tax year.
Payment shall be made quarterly on or before the
final day of each three calendar month period based on
one-fourth (1/4) of the total payments made in the preceding
fiscal year. At the close of each fiscal year, an
accounting shall be made to determine whether GRANTEE owes
additional monies, which shall be paid not less than thirty
(30) days after the close of said fiscal year, or whether
GRANTEE is owed a refund, which shall be collected by
offsetting the total amount of the refund from the next
succeeding quarterly payment made by the GRANTOR.
Section 8. GRANTOR hereby reserves the right at and
after the expiration of this grant to purchase the property
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of GRANTEE used under this franchise grant at a valuation to
be determined by negotiation between the parties.
Section 9. In consideration of the GRANTEE'S
undertakings hereunder as evidenced by its acceptance
hereof, the GRANTOR agrees not to engage in the business of
distributing and selling gas during the life of this
franchise or any extension thereof in competition with the
GRANTEE, its successors and assigns.
Section 10. Failure on the part of GRANTEE to comply
in any substantial respect with any of the provisions,
covenants, terms or conditions of this ordinance, shall be
grounds for a forfeiture shall take effect if the
reasonableness or propriety thereof is protested by GRANTEE
until a court of competent jurisdiction (with right of
appeal in either party) shall have found that GRANTEE has
failed to comply in a substantial respect with any of the
provisions of this franchise, and the GRANTEE shall have six
(6) months after the final determination of the question, to
make good the default before a forfeiture shall result with
the right in GRANTOR at its discretion to grant such
additional time to GRANTEE for compliance as necessities in
the case require.
Section 11. GRANTEE by its acceptance hereof, which
shall be filed with the GRANTOR'S City Clerk within thirty
(30) days after the final passage of this o.rdinance, agrees
to observe,, perform and keep all of the agreements,
covenants, terms and conditions hereof to be observed,
performed and kept by GRANTEE. All of the terms, provisions
and conditions hereof shall insure to and be binding upon
the respective successors and assigns of the GRANTOR and
GRANTEE.
Section 12. No assignment or transfer of the
franchise rights granted hereby, shall be effective unless
the GRANTEE shall have notified the GRANTOR in writing prior
to the scheduled date of said assignment or transfer, and
unless, after the filing of said notice, the GRANTOR shall
have by ordinance approved and consented to such assignment
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or transfer, such approval and consent not to be
unreasonably withheld. The assignment or transfer of the
franchise rights, shall be subject to any additional
provisions and conditions, as agreed to between the parties,
and as set forth in the ordinance approving the assignment
or transfer.
Section 13. In the event of a final adjudication of
bankruptcy of the GRANTEE, the GRANTOR shall have full power
and authority to terminate, revoke and cancel any and all
rights granted under the provisions of this ordinance.
Section 14. Minor changes in the terms and
conditions hereof may be made by written agreement between
the GRANTOR and the GRANTEE, provided, however, that this
section shall not be construed as conferring authority to
make changes in or modification of the provision of this
ordinance which would be repugnant to or inconsistent with
the basic grant, factors or principles underlying the terms
and conditions hereof.
Section 15. The accounts and records of the GRANTEE
pertaining to gas service rendered under this franchise
shall be maintained within the State of Florida, and GRANTOR
may, at its option, upon reasonable notice to GRANTEE,s- at
any time during the ninety (90) days after the close of each
fiscal year of this grant, or at such other times as
mutually agreed to between the parties, examine said
accounts and records and as such relate to the calculation
of the franchise payment to the GRANTOR. Such examination
of accounts and records of GRANTEE by GRANTOR shall be made
during the regular business hours of the GRANTEE at the
General Office of the GRANTEE. The GRANTEE shall maintain
its records in sufficient detail that revenues within the
corporate limits of the GRANTOR are readily discernible from
other revenues for auditing purposes. All examinations
shall be at the sole expense of the GRANTOR. However, if
the GRANTOR conducts an audit of the GRANTEE'S books and
records, and substantial discrepancies are discovered which
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result in sums which should have been paid to GRANTOR, then
the cost of such audit will ~be paid by GRANTEE.
Section 16. Al~ordinances or parts of_ ordinance in
conflict herewith are hereby repealed.
Section 17. Should any section or provision of this
ordinance or any portion thereof, any paragraph, sentence or
word be declared by a court of competent jurisdiction to be
invalid, such decision shall not affect the validity of the
remainder hereof as a whole or part thereof other than the
part declared to be invalid.
Section 18. This ordinance shall take effect upon
the first day of the first full calendar month following the
date upon which the GRANTEE files its acceptance.
FIRST READING this /~ day of /~/F/~ ,
1990.
SECOND, FINAL READING and PASSAGE this / day of
/~/~ , 1990.
CITY FLORIDA
ATTEST:
Ci~ Clerk~
(Corporate Seal)
tyv~ ~a~o r
Com~issioner-
Commissioner ~
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