32-90 ORDINANCE NO. 32- 90
AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF
DELRAY 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 SAVING CLAUSE; PROVID-
ING A GENERAL REPEALER CLAUSE; PROVIDING AN
EFFECTIVE DATE.
WHEREAS, the grant by the City of Delray Beach of a gas
franchise for a term of thirty (30) years to Florida Public Utilities
Company expired on July 10, 1989, and is currently being extended
through mutual agreement of the parties; and,
WHEREAS, the City Commission finds that it is in the best
public interest to renew and update the gas franchise grant to Florida
Public Utilities Company.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE
CITY OF DELRAY BEACH, FLORIDA THAT:
Section 1. The City of Delray Beach, 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 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, generation, purchase, transmission and distribution
of artificial, natural and/or mixed gas (herein 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 thereof, but nothing herein contained shall relieve Grantee from
meeting all applicable requirements of the Grantor's Code of Ordinances
including Building and Zoning Codes (which are not in conflict with the
Florida Administrative Code and/or the Code of Federal Regulations
requirements) and 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 representa-
tives 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 reloca-
tion 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 or distur-
bance. 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. 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 reloca-
tion 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
succesors, 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, generation,
transmission, supply and distribution of gas for the benefit and conve-
nience 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 discontinu-
ance 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,
claims, demands, expenses, fees, fines, penalties, suits, proceedings,
actions, costs of actions, including attorney's fees and costs of
appellate proceedings of whatsoever kind or nature arising out of the
negligence, default, misconduct or otherwise of Grantee in the
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ORD. NO. 32-90
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 thereof, the
following insurance coverages: (a) Comprehensive General Liability
Insurance, including products, contractual, and hazard, with a minimum
combined single limit of One Million Dollars ($1,000,000). 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 to notify the Grantor in writing as
least thirty (30) days before any cancellation of such policy is to
become effective. (b) Worker's Compensation Insurance and Comprehensive
Automobile Liability Insurance as required under the Florida Statutes
for the benefit of the employees of Grantee.
Section 7. In consideration for the rights and privileges
granted herein, Grantee agrees to pay Grantor a privilege tax equal to
six percent (6%) of its gross revenues (gross revenues being the amount
collected less charge-offs for uncollectible accounts and adjustments)
and which 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 from the sale of gas to residential and
general service commercial customers within the corporate limits of
Grantor within a twelve month period (i.e. the applicable "privilege tax
year"). The first privilege tax year shall commence on the first day of
the first full calendar month following the adoption of this Ordinance.
Payments shall be made quarterly on or before the final day of
each three calendar month period based upon 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 (1.5%) 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
privilege 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 privilege 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
Grantor.
Section 8. Grantor hereby reserves 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, or failing such agreement, the price shall be
determined pursuant to F.S. Section 180.16.
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
respect any provisions, covenants, terms or
substantial
with
of
the
conditions of this ordinance, shall be grounds for a forfeiture of this
3
ORD. NO. 32-90
grant, but no such forfeiture shall take effect if the reasonableness or
propriety thereof is protested by Grantee until a court of competent
jurisdiction (~ith 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 ordinance, agrees to observe, perform and keep all
of the agreements, covenants, terms and conditions hereof to be
observed, performed and kept by Grantee including related agreements.
All of the terms, provisions and conditions hereof including related
agreements shall inure 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 noti-
fied 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 assign-
ment 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 bankrupt-
cy 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 confer-
ring 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 pertain-
ing 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 fiscal year of this grant, or at such other
times as mutually agreed to between the parties, examines 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
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ORD. NO. 32-90
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 va!idi~y of the ......
......... a~. 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.
PASSED AND ADOPTED in regular session on second and final
reading on this the 14tn day of Auqust , 1990.
Attest:
Asst. City Clerk
First Reading July 24, 1990
Second Reading August 14, 1990
'~rPI~oF DL~iiAy ii, kCH
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ORD. NO. 32-90