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HomeMy Public PortalAboutORD 97/03ORDINANCE NO. 97 -3 AN ORDINANCE OF THE TOWN COMMISSION OF THE TOWN OF GULF STREAM, PALM BEACH COUNTY, FLORIDA, GRANTING TO FLORIDA PUBLIC UTILITIES COMPANY, ITS SUCCESSORS AND ASSIGNS, A GAS FRANCHISE AND PERMISSION TO CONDUCT A GAS BUSINESS IN THE TOWN OF GULF STREAM, FLORIDA. WHEREAS, the TOWN Commission finds that it is in the public interest to grant this gas franchise to Florida Public Utilities Company. NOW THEREFORE, BE IT ORDAINED BY THE TOWN COMMISSION OF THE TOWN OF GULF STREAM, FLORIDA AS FOLLOWS: SECTION 1: The TOWN of GULF STREAM, a municipal corporation of the State of Florida (hereinafter "GRANTOR "), hereby grants to FLORIDA PUBLIC UTILITIES COMPANY, a corporation of the State of Florida (hereinafter "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 its 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 desirable appurtenances thereto, for the manufacture, purchase, transmission and distribution of artificial, natural and /or mixed gas (hereinafter referred to generally as "gas "), including the right without the payment by GRANTEE of any special tax, assessment or charges therefore 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, for the purpose of distributing, supplying and selling gas to 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 1 thereof, but nothing herein contained shall relieve GRANTEE from meeting all applicable requirements of the GRANTOR'S Code of Ordinances including the Building and Zoning Codes (which are not in conflict with the Florida Administrative Code and /or the Code of Federal Regulations requirements) and the payment of any fees, licenses or ad valorem taxes ordinarily imposed by Grantor on similar business activities. 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 or disturbed shall, within a reasonable time and as early as practicable after such excavation, or disturbance be restored by the GRANTEE at its sole expense and in as good condition as it was at the time of such excavation or disturbance. 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 (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 GRANTEE, and the cost of same shall be 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, avenues, alleys, 2 highways, bridges, easements, and other public places of the GRANTOR made necessary by widening, paving, or otherwise improving such streets, avenues, alleys, highways, bridges, easements, and other public places, except that the GRANTEE shall be entitled to seek 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, 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; 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 canceling 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 91 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, claims, demands, expenses, fees, fines, penalties, suits, proceedings, actions and costs of actions, of whatsoever kind or nature arising out of the negligence, default, misconduct or otherwise of the GRANTEE in the construction, operation, conduct or maintenance of its facilities or services hereunder, excepting only the negligence of the GRANTOR. SECTION 6: GRANTEE shall carry in full force and effect during the entire term of this agreement, and any extension period thereof, the following insurance coverages: (a) Comprehensive General Liability Insurance, including bodily injury liability, property damage liability and product liability insurance, with a minimum combined single limit of One Million Dollars ($1,000,000), and (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 billed 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 4 preceding the beginning of the applicable privilege tax year, but not including any public service tax levied on the purchase of metered or bottled gas pursuant to F. S. § 166.231. 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 privilege tax year, except for the first privilege tax year where each quarterly payment shall equal one and one half percent (1.50) of gross revenues from the sale of gas to residential and general service customers for the twelve calendar months preceding the effective date of this Ordinance. At the close of each fiscal tax 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 tax 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 to the GRANTOR. SECTION 8: As a condition precedent to the taking effect of this grant, GRANTOR hereby reserves and GRANTEE hereby gives and grants to GRANTOR, the right at and after the expiration of this grant to purchase the property 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, ifs 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 of this grant, but no such 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 5 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 TOWN Clerk within thirty (30) days after the final passage of this ordinance, 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, covenants and conditions hereof shall inure to and be binding upon the respective successors and assigns of the GRANTOR and the 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 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 proving 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 rl construed as conferring authority to make changes in or modification of the provisions 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, at any time during the ninety (90) days after the close of each privilege tax 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 result in sums which should have been paid to GRANTOR, then the cost of such audit will be paid by GRANTEE. SECTION 16: All ordinances or parts of ordinances 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. 7 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. PASSED AND ADOPTED in a regular, adjourned session on first reading this 20th day of June , 1997, and for a second and final reading on this 18th day of Y ATT T: TOWN COMMISSION TOWN CLERK JCR \13147.01 \FPU.ORD