Loading...
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 2 (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. 4 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 5 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 6 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 7 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 ~ 8