Loading...
2010-08 Natural Gas Franchise with Florida Public UtilitiesORDINANCE 2010-08 AN ORDINANCE OF THE VILLAGE COUNCIL OF THE VILLAGE OF NORTH PALM BEACH, FLORIDA, RELATING TO THE RENEWAL OF A GAS FRANCHISE WITHIN THE VILLAGE OF NORTH PALM BEACH: GRANTING TO FLORIDA PUBLIC UTILITIES COMPANY, ITS SUCCESSORS AND ASSIGNS A GAS FRANCHISE; IMPOSING PROVISIONS AND CONDITIONS RELATING THERETO; PROVIDING FOR CONFLICTS; PROVIDING FOR SEVERABILITY; PROVIDING FOR AN EFFECTIVE DATE; AND FOR OTHER PURPOSES. WHEREAS, through the enactment of Ordinance No. 11-80, the Village Council granted Florida Public Utilities a franchise to utilize the public streets and rights-of--way within the Village to provide facilities for the purchase, transmission, distribution and sale of gas for a period of thirty (30) years; and WHEREAS, the Village Council determines that it is in the best interests of the residents and citizen of the Village of North Palm Beach to renew and update the gas franchise granted to Florida Public Utilities Company. NOW THEREFORE, BE IT ORDAINED BY THE VILLAGE COUNCIL OF THE VILLAGE OF NORTH PALM BEACH, FLORIDA that: Section 1. The Village of North Palm Beach, a municipal corporation organized and existing under the law 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 thereof, but nothing herein contained shall relieve GRANTEE from meeting all applicable requirements of the GRANTOR'S Code of Ordinances including all applicable Building and Zoning Codes (which are not in conflict with the Florida Administrative Code and/or the Code of Federal Regulations requirements). Except for emergency repairs, all plans and specifications for the repair, location or • relocation of all facilities constructed by GRANTEE within the Village shall be approved by Page 1 of 8 GRANTOR prior to commencement of construction. GRANTEE shall submit plans for • emergency repairs within twenty-four (24) hours of making such repairs or the next business day, whichever first occurs. Furthermore, nothing herein contained shall relieve GRANTEE from the payment of any fees, licenses or ad valorem taxes ordinarily imposed by GRANTOR on similar business activities. Section 2. GRANTEE's facilities installed after the effective date of this Ordinance shall be installed, located, relocated, or erected so as not to obstruct or interfere with the use or access to any water pipes, sewers, storm drains, electrical conduits, communications cables or other utilities or structures already installed or hereafter installed and shall not interfere with traffic over GRANTOR'S streets and public rights-of--way or with reasonable egress from and ingress to abutting property. Any facilities or other equipment installed by GRANTOR that is required to be located above ground shall be screened from public view and from any adjacent residential property in a manner acceptable to GRANTOR. The location or relocation of all facilities shall be made under the supervision and with the approval of such representatives asGRANTOR may designate for this purpose, but not so as unreasonably to interfere with the proper operation of GRANTEE'S facilities and service. GRANTOR shall make such inspections of the construction, repair, location or relocation of GRANTEE's facilities as it finds necessary to ensure compliance with the provisions of this franchise and other applicable regulations. GRANTEE shall take safety precautions to alert the public of work within streets and public rights-of--way which may include, but are not limited to, the use of barricades and signs. Except for emergency repairs, no street or right-of--way or any portion thereof shall be closed to the public without the prior written approval of GRANTOR, which approval shall not be unreasonably withheld. 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 to the same or better condition as it was at the time of such excavation or disturbance. In addition, such work shall be done only in the manner authorized by and pursuant to the regulations established by the ordinances of the GRANTOR. Upon failure of GRANTEE to do so after ten (10) days' notice in writing shall have been given to GRANTEE by GRANTOR, GRANTOR may repair such portion of 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, 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. GRANTEE shall at time maintain an accurate map showing the location of all gas mains • Page 2 of 8 and service pipes and other facilities laid and maintained by GRANTEE within the streets and • public rights-of--way within GRANTOR's corporate limits. 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. GRANTEE shall notify GRANTOR of any unscheduled on unforeseen interruption or impairment of service affecting at least twenty percent (20%) of the customers within GRANTOR's municipal limits immediately upon discovery and shall continually keep GRANTOR informed, through communications with the Village Manager or his or her designee, of its progress in restoring service to such customers. Whenever it is necessary to shut off or interrupt service for the purpose of making repairs or installations, GRANTEE shall do so at such times as will cause the least amount of inconvenience to its customers, and unless such repairs are unforeseen and immediately necessary, GRANTEE shall give reasonable notice thereofto its customers. 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, 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, its officers, employees, contractors and/or agents in the construction, operation, conduct or maintenance of its facilities or services hereunder, excepting only the negligence of the GRANTOR. The indemnity hereunder includes not only the reasonable costs, expenses and attorney's fees incurred by GRANTOR in defense of any third party's claim, but also includes the reasonable costs, expenses and attorney's fees incurred by GRANTOR in the event it • Page 3 of 8 must enforce the terms of this indemnity. This indemnification shall survive the termination or • expiration ofthis franchise. 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 Five Million Dollars ($5,000,000) and shall include coverage for products and completed operations liability, independent contractor's liability, and coverage for property damage from perils of explosion, collapse or damage to underground facilities, commonly known as XCU coverage; (b) Comprehensive Automobile Liability Insurance covering all owned, hired, and non-owned vehicles in use by GRANTEE, its employees and agents, with personal protection insurance and property protection insurance to comply with the provisions of state law, including residual liability insurance with minimum limits of One Million Dollars ($1,000,000) as the combined single limit for each occurrence for bodily injury and property damage; and (c) Workers Compensation 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 fee equal to the amount by which six percent and one-half (6.50%) of its gross revenues (gross revenues being the amount billed less actual write-offs for uncollectible accounts and bill adjustments) from the sale of gas to residential and general service customers within the corporate limits of GRANTOR for the twelve calendaz 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 yeaz 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 fee year, except for the first yeaz where each quarterly payment shall equal one and six-hundred-twenty- five-one-thousandth percent (1.625%) 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 yeaz, 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 The portion of any payment remaining unpaid when due shall draw interest from the due date and until paid at the rate of twelve percent (12%). Notwithstanding any gap between the expiration of the franchise granted by Ordinance 11-80 and the effective date of this Ordinance, GRANTOR and GRANTEE agree that there shall be no lapse in payment of the privilege fee referenced in this Section. • Page4of8 • 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 and option 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, 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 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 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 sixty (60) days 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. GRANTEE agrees that that in the event a court of competent jurisdiction determines that GRANTEE has filed to comply in any substantial respect with any of the provisions of this ordinance, GRANTEE shall pay GRANTOR's costs and expenses, including reasonable attorney's fees, arising therefrom. Section 11. GRANTEE, by its acceptance her~f, agrees to observe, perform and keep all ofthe 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 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. • Page 5 of 8 Section 14. Minor changes in the terms and conditions hereof, including a change to the • privilege free referenced in Section 7, maybe made by written agreement between the GRANTOR and the GRANTEE and approved by GRANTOR via resolution, provided, however, that this section shall not be 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 hereo£ 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. The franchise granted to GRANTEE by GRANTOR in this ordinance is non- exclusive. This ordinance does not establish any priority for the use of GRANTOR's streets and public rights-of--way by GRANTEE or by any present or future franchisee or permit holder. Section 17. All ordinances or parts of ordinances in conflict herewith are hereby repealed to the extent of such conflict. Section 18. If any section, paragraph, sentence, clause phrase or word of this ordinance is for any reason held by a court of competent jurisdiction to be unconstitutional, inoperative or void, such holding shall not affect the remainder of this ordinance. Section 19. This ordinance shall take effect upon the first day following the date of filing by the GRANTEE of its acceptance of this franchise grant. GRANTEE'S acceptance shall be in the same or similar form as the acceptance provided as Exhibit "A" attached hereto and incorporated herein and shall be filed with GRANTOR'S Clerk. If GRANTEE fails to file its acceptance within thirty (30) days after GRANTOR approves this ordinance on second reading, this grant of franchise shall be null and void. [Remainder of page intentionally blank] • Page 6 of 8 PLACED ON FIRST READING THIS 10th DAY OF JUNE, 2010. • PLACED ON SECOND, FINAL READING AND PASSED THIS 24th DAY OF JUNE. 2010. (Villa e Seal) ~%~ ~~~L~ g MAYO ATTEST: ~~~ ~ ~~~ VILLAGE CLERK ~ APPROVED AS TO FORM AND LEGAL SUFFICIENCY: VILLAGE ATTORNEY • Page 7 of 8 EXHIBIT "A" FLORIDA PUBLIC UTILITIES COMPANY ACCEPTANCE OF FRANCHISE GRANT I, the undersigned official of the Florida Public Utilities Company, am authorized to bind the Florida Public Utilities Company and to accept the terms and conditions of the foregoing grant of franchise (Ordinance No. 2010-08), which are hereby accepted by the Florida Public Utilities Company contingent upon approval of the same by the Village Council of the Village of North Palm Beach on this ~ day of J ~/~~,~,; , 2010. FLORIDA PUBLIC UTILITIES COMPANY By: ~ ~. ~~~ /1~n,e ~./ Name: ~' . L ~ ~' ~' t /1 Title: ~~' ~ ' ~~ (SEAL) STATE OF r"' Ci ~ ~~1 C~- COUNTY OF Cti~: -~ ~ The foregoing was subsc ibed and swo to before me this ~~-~day of ~~~-~-'~ ~, 2010 by ~ • L- . S~ (`'1 ,who is personally known to me. (SEAL) Notary Public ~ I C ~,I 1 ~h~ ~'~C'~u-t~~ i'~-- l.~ J a~'~Y~PiiB~, CHAUNDRA L. SAYLOR =••~p ~~~•,, Notary Public -State of Florida ~, ; •: My Comm. Expires Jun 5, 2014 Oy ~;= Commission ~ DD 967154 ,;FOS.~~~' Bonded Through National Notary Assn. ~,~~~~~~ Page 8 of 8