Fort Walton Beach Ordinance — 1710--Natural Gas Utility Franchise — reading text

C. Grantee shall in good faith attempt to investigate all reasonable complaints within two ( 2) working days of their receipt and shall in good faith attempt to resolve them within four (4) working days of receipt, and agents of Grantee will be available in the City for these purposes. Records of all customer complaints regarding Grantee' s services, including the date and time of day received, the nature of the complaint, type of investigation and their resolution or disposition, shall be maintained by Grantee for a period of twelve (12) months and shall be furnished to Grantor upon request. SECTION 19. MONITORING PERFORMANCE AND COMPLIANCE. The City Manager of Grantor, or his designee, and the General Manager of the Grantee, or his designee, shall monitor and review the performance of Grantee, and each may report and make recommendations to the Grantor and/or Grantee regarding the quality of service provided for herein. For the purpose of this function, " service" shall be defmed as the performance of the duties, tasks, and obligations of the Grantee enumerated herein and the performance of such other duties, tasks and obligations as are generally and reasonably regarded as incident to a gas system. 7  SECTION 20. INDEMNIFICATION, LIABILITY AND INSURANCE. A. The Grantee agrees by the acceptance of the franchise to indemnify, keep and save the Grantor, its Council members, officers, boards, agents, and employees free and harmless, and defend, from and against all liability and expense, including reasonable attorney' s fees, in connection with or on account of any and all claims whatsoever for injuries or damage to persons or to property arising out of the construction, maintenance, repair and operation of its gas system or the acts, commissions or omissions of Grantee, its servants, agents or employees, arising out of Grantee' s failure to comply with the provisions of any federal, state or local statute, ordinance or regulation applicable to Grantee in its business hereunder; claims made by the employees of the Grantee against the Grantor and Grantee, regarding which Grantee hereby waives its entitlements, if any, to immunity under Section 440. 11, Florida Statutes, and the Florida Workers Compensation Act; arising out of any violation of federal or state antitrust laws resulting from the granting of a franchise; arising out of any " taking" of property arising out of this ordinance for which just compensation is due under the Constitutions of the United States and the State of Florida; and arising out of or undertaken on behalf of the Grantee' s right to do business. B. The Grantee agrees to carry an adequate and reasonable amount of liability insurance, acceptable to Grantor, at all times. Grantee shall cause the City of Fort Walton Beach to be added as an additional insured on Grantee' s general liability and automobile policies. C. Nothing contained herein shall be construed to waive either party' s immunity from liability under the doctrine of sovereign immunity or Section 768. 28, Florida Statutes. SECTION 21. ANNUAL AUDIT. The Grantee agrees that it will cause an annual audit immediately after the end of each fiscal year to be made of its books, records and accounts by a certified public accountant and will furnish a copy thereof to the Grantor. SECTION 22. COLLECTION PROVISION. The Grantee hereby agrees to collect and remit to the Grantor any lawfully levied utility taxes now existing or hereinafter enacted upon gas customers of the Grantee within the City 1 imits. SECTION 23. DEFAULT CLAUSE. In the event the Grantee shall default in the observance or performance of anyone or more of the agreements, duties or obligations imposed upon it by any of the provisions or conditions of this ordinance, and if any such default or defaults shall continue for a period of three ( 3) months, exclusive of all times during which the Grantee may be delayed or interfered with, without its connivance, by unavoidable accidents, acts of God or the public enemy, labor strikes or the orders or judgments of any commission or court entered in any suit or proceeding brought without its connivance, after written notice thereof to the Grantee from the Grantor, stating the alleged default on the part of the Grantee, then and in each and every such case the Grantor, in addition to all other rights and remedies allowed by law, shall be entitled to terminate the grant made to the Grantee under this ordinance. SECTION 24. RIGHT TO PURCHASE AFTER EXPIRATION OF FRANCHISE. A. As a condition precedent to this franchise, the Grantor does hereby reserve and the 8 Grantee gives and grants to the Grantor, the right, after the expiration of this franchise, to purchase the distribution system, inc 1 uding necessary component parts of the distribution system at valuation of fair market value, which fair market value shall be determined by arbitration under the Florida Arbitration Code, Sections 682.01- 682. 22 Florida Statutes. This option to purchase is further subject to the condition that upon the exercise of the option, the Grantor shall take and purchase from the Grantee its entire requirements of gas for use and for resale in the communities and areas supplied by the distribution system, and the Grantee shall sell and deliver to the Grantor such gas to the extent the same is available at such rates and charges as shall be established from time to time by the Board of Directors of the Grantee such rates and charges to be fair, equitable and just commensurate to the same price charged other like customers. B. In the event the Grantor exercises its option to purchase at the expiration of the term of this franchise as enumerated in paragraph A, such option shall be exercised by giving notice in writing not less than sixty ( 60) days prior to such expiration signed by the Mayor or City Manager of the Grantor accompanied by a resolution of the City Council of the Grantor authorizing the exercise of such option. C. Exercise of this option to purchase the distribution system shall not divest the Grantee, at his some discretion, of the right to continue to supply any then existing interruptible or " transportation only" customers previously supplied by the Grantor' s distribution system inc I uding any such customer associated within the corporate limits of the Grantor. In the event the Grantee elects to continue to supply any such customer or customers, and so notifies the Grantor in writing within sixty ( 60) days of the receipt of the notice from the Grantor of the exercise of the option to purchase pursuant to Section 24 of this agreement, the right, privilege, authority and franchise granted by the Grantor to the Grantee shall continue in force and effect with respect to any such customer or customers, and the Grantor shall permit the Grantee to make such use of the facilities of such distribution system as may be necessary to permit the Grantee to supp I y such customer or customers. The ob I igation of the Grantee under Section 6 to make payments for the gross revenues generated by firm customers shall cease upon the exercise by the Grantor of its rights under Section 24. However, the Grantee shall continue to be obligated to make payments for the gross revenues generated by interruptible and transportation only customers located within the corporate limits for as long as service continues to be provided by the Grantee. SECTION 25. OPERATIONS DURING DISPUTE. In the event that a dispute arises between the Grantor and the Grantee, or any other interested party in any way relatip.g to this franchise, performance or compensation hereunder, the Grantee shall continue to render service in full compliance with all terms and conditions of this franchise regardless of the nature of the dispute. SECTION 26. CONTINUITY OF SERVICE MANDATORY. A. It shall be the right of all customers to continue receiving service insofar as their financial and other obligations to the Grantee are honored. In the event that the Grantee elects to overbuild, rebuild or modify the system, or the Grantor gives notice of intent to terminate or fails to renew this franchise, the Grantee shall act to ensure that all customers receive continuous, uninterrupted service for the duration of the franchise regardless of the circumstances. In the event of a change of franchise, the Grantee shall cooperate with the Grantor in maintaining continuous service to all customers. During such period, Grantee shall be entitled to the revenues for any period during which it operates the system, and shall be 9 entitled to reasonable compensation for its services when it no longer operates the system. B. In the event Grantee fails to operate the system for four ( 4) consecutive days without prior approval of the Grantor or without just cause, the Grantor may, at its option, operate the system or designate an operator until such time as Grantee restores service under conditions acceptable to the Grantor or a permanent operator is selected. If the Grantor is required to fulfill this obligation for the Grantee, the Grantee shall reimburse the Grantor for all reasonable costs or damages in excess of revenues from the system received by the Grantor that are the result of the Grantee' s failure to perform. SECTION 27. ( RESERVED) SECTION 28. MISCELLANEOUS. When not otherwise prescribed herein, all matters herein required to be filed with Grantor shall be filed with the City Manager, and with Grantee shall be filed with its General Manager. SECTION 29. FAILURE TO REQUIRE PERFORMANCE, NOT A WAIVER. The failure of either party at any time to require performance by the other party of any provision hereof shall not affect the right of either party thereafter to enforce same; nor shall waiver by either party of any breach of any provision hereof be taken or held to be a waiver of any succeeding breach or as a waiver of any provision itself. SECTION 30. SEVERABILITY. If any section, subsection, sentence, clause or phrase of this ordinance for any reason be he 1 d invalid or unconstitutional by the decision of any Court of competent jurisdiction or administrative agency, such decision shall not affect the validity of the remaining portions thereof. The Grantee hereby declares that it would have accepted the provisions of this ordinance and each section, subsection, sentence, clause and phrase hereof, irrespective of the fact that anyone or more sections, subsections, sentences, clauses or phrases be declared illegal, invalid or unconstitutional. The invalidity of any portion of this ordinance shall not abate, reduce or otherwise affect any consideration or other obligation by the Grantee of the franchise granted hereunder; provided, however, that the Grantor may amend those provisions inva1 idated; provided further, however, that the Grantor may terminate the franchise when the inval idated provision may not be so amended as to preserve the purposes for which it was agreed to in the original franchise and when said invalidated provision is found by the Grantor to be essential to the franchise as a whole. SECTION 31. CAPTIONS. The section headings and captions contained herein are for convenience only and shall not be used to vary or interpret the terms of this ordinance. SECTION 32. REPEALING CLAUSE. All ordinances or parts of ordinance in conflict