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
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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,
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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
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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
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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
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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
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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.
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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