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HomeMy WebLinkAboutO-2021-017 Peoples Gas System Natural Gas Franchise AgreementORDINANCE NO. 2021-017 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DANIA BEACH, FLORIDA GRANTING TO PEOPLES GAS SYSTEM, A DIVISION OF TAMPA ELECTRIC COMPANY, ITS SUCCESSORS AND ASSIGNS, A NON-EXCLUSIVE NATURAL GAS FRANCHISE AGREEMENT TO USE THE PUBLIC RIGHTS OF WAY OF THE CITY OF DANIA BEACH, FLORIDA, AND PRESCRIBING THE TERMS AND CONDITIONS UNDER WHICH THE FRANCHISE MAY BE EXERCISED; PROVIDING FOR CONFLICTS; PROVIDING FOR SEVERABILITY; FURTHER, PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, Peoples Gas System and the City of Dania Beach desire to enter into a franchise agreement for a period of ten (10) with two (2) renewal periods of ten (10) years each, years commencing from the date provided in this Ordinance; and WHEREAS, the City Commission finds that it is in the public interest of its citizens to enter into a new franchise agreement with Peoples Gas System; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF DANIA BEACH, FLORIDA: Section 1. Definitions For the purposes of this Ordinance, the following terms shall have the meanings given: A. "Customer" shall mean any person served by the Company within the corporate limits of the City. B. "City" shall mean the City of Dania Beach, Broward County, Florida, its successor and assigns. C. "Company" shall mean Peoples Gas System, a division of Tampa Electric Company, a Florida corporation, its successors and assigns. D. "Distribution System" shall mean any and all transmission pipe lines, main pipe lines and service lines, together with all tubes, traps, vents, vaults, manholes, meters, gauges, regulators, valves, conduits, attachments, structures and other appurtenances, as are used or useful in the sale, distribution, transportation or delivery of Natural Gas and as are situated within the corporate limits of the City. E. "Effective Date" shall mean the date this Franchise becomes effective as described in Section 19 below. F. "Franchise" or "Franchise Agreement" shall mean this Ordinance as adopted by the City and accepted by the Company as provided in Section 19 below. G. "FPSC" shall mean the Florida Public Service Commission or any successor agency. H. "Gross Revenues" shall mean all revenues (as defined by the Florida Public Service Commission) received by the Company from any customer from the sale of natural gas. 1. "Person" shall mean any individual, firm, partnership, estate, corporation, company or other entity, including, but not limited to, any government entity. J. "Natural Gas" or "Gas" shall mean natural gas, manufactured gas, a mixture of gases or any of the foregoing, which is distributed in pipes and measured by a meter on the Customer's premises. It shall not mean propane gas or liquefied petroleum gas (commonly referred to as "bottled gas"). K. "Right-of-way" means any street, road, lane, highway, avenue, boulevard, alley, waterway, bridge, easement, public place, or other right-of-way that is owned by the City. Section 2. Grant The City grants to the Company the non-exclusive right, privilege, and franchise to lay, erect, construct, operate and maintain in, on or under any and all Rights -of -way, as they now exist or may be hereafter constructed, opened, laid out or extended within the present incorporated limits of the City, or in such territory as may be hereafter added or annexed to, or consolidated with the City, a Distribution System subject to the terms and conditions contained in this Ordinance. Section 3. Term Except as provided in Section 15, the Franchise hereby granted shall be for a period of ten years from the effective date of this ordinance; provided, however, that there will be an option to renew the Franchise for up to two (2) ten (10) year renewal terms if the Company provides the City with written notice, no less than one hundred and eighty (180) days prior to the expiration of the then existing ten (10) year term, stating that the Company wants to exercise the option to an additional ten (10) year term, and in addition, the City then provides written notice, from the City's Chief Administrative Officer, of acceptance of the ten (10) year renewal term prior to the expiration of the existing ten (10) year term. If the Company fails to provide timely written notice that Company wants to exercise the option for the additional ten (10) year term or if the City does not accept the Company's request for the additional ten (10) year term, then the Franchise shall expire upon the conclusion of the existing ten (10) year term. 2 ORDINANCE #2021-017 Section 4. Assignment A. The Franchise granted by this Ordinance shall not be leased, assigned or otherwise alienated or disposed of except with the prior express written consent of the City, which shall not be unreasonably withheld or unduly delayed. No assignment shall be allowed without the assignee assuming the terms of the Franchise Agreement with the City. B. Notwithstanding the foregoing, the Company may, without the consent of the City, lease, assign or otherwise alienate and transfer this Franchise in connection with the lease or sale of the Distribution System or upon its merger or consolidation with, or transfer to, a corporation engaged in similar business (including an affiliate or subsidiary of the Company), or pledge or mortgage such Franchise in connection with the physical property owned and used by it in the operation of the Distribution System for the purpose of securing payment of monies borrowed by the Company. Section 5. City Covenant As a further consideration for this Franchise Agreement, the City covenants and agrees that it will not, during the term of this Franchise Agreement or any extension of it, engage in the business of distributing or selling Natural Gas within the corporate limits of the City, as modified, during the term of this Franchise Agreement. Section 6. Use of Streets The Distribution System shall be erected, placed, or laid in such manner as will, consistent with necessity, least interfere with other public uses of the Rights -of -way, and the Right-of-way shall not be unnecessarily obstructed, and before, except in an emergency situation, the Company makes any excavation or disturbs the surface of any of the Rights -of -way, it shall make application for a permit to the appropriate City authority. The City shall issue or, if applicable, deny permits within ten (10) business days of application by the Company. In consideration of the franchise fees contemplated in this Franchise Agreement, the City shall not charge the Company any fees for the issuance of such permits. The Company shall, with due diligence and dispatch, place such Right-of-way in as good a condition as before such excavation or disturbance was made; provided, however, that should the Company fail, within ten (10) days of its receipt of written notice from the City, to restore such Right-of-way, then the City may undertake such restoration (other than any restoration work on the Distribution System) and charge the reasonable cost of such work to the Company. To the extent consistent with Florida law, the Company agrees to abide by all of the rules, regulations and ordinances which the City has passed or might pass in the future in the exercise of its police power, in the exercise of its police power, provided, however, that the City shall not pass any ordinance or regulation that results in a material change to the rights or obligations of the Company under the Franchise Agreement. ORDINANCE #2021-017 Section 7. Maintenance All components of the Distribution System of the Company located within the City shall be installed and maintained in accordance with accepted good practice and in accordance with the orders, rules, and regulations of the Florida Public Service Commission. Section 8. Laying of Pipe All components of the Distribution System shall be laid consistent with all applicable codes, rules, regulations and laws, including, to the extent consistent with all applicable codes, rules, regulations, laws and specifications contained in City permits. The Distribution System shall be continually maintained in good and safe condition and the Company shall use commercially reasonable efforts to make all repairs promptly and in a manner that will minimize any impact upon the public. Section 9. Construction Work The City reserves the right to permit to be laid electric conduits, water and gas pipes and lines, cables, sewers, and to do and permit to be done any underground work that may be deemed necessary or proper by the City in, across, along, or under any Right-of-way. Whenever, by reason of establishing a grade or by reason of changes in the grade of any Right-of-way, or by reason of the widening, grading, paving, or otherwise improving present or future Rights -of -way, or in the location or manner of construction of any water pipes, electric conduits, sewers, or any other underground structure located within the Rights -of -way, it shall be deemed necessary by the City to remove, relocate, or disconnect any portion of the Distribution System of the Company for such public purpose, such removal, relocation, or disconnection shall be made by the Company as ordered in writing by the City without claim for reimbursement. If the City shall require the Company to remove, relocate, or disconnect any portion of its Distribution System or in any way to alter the placement or location of the Distribution System to enable any other person to use the Rights -of -way of the City, as part of its permitting or approval process, the City shall require the person desiring or occasioning such removal, relocation, disconnection, or alteration to reimburse the Company for any loss, cost, or expense caused by or arising out of such removal, relocation, disconnection, or alteration of any portion of the Distribution System. The Company further agrees that it will not intentionally interfere with, change, or injure any water pipes, drains, or sewers of the City unless it has received specific permission from the City or its duly authorized representative. Section 10. Franchise Fee Subject to Section I I below, within thirty(30) days after the close of the first full billing month following the effective date of this Franchise Agreement Ordinance, and each month thereafter during the term of this Franchise Agreement, the Company, its successors, or assigns, shall supply to the City or its successors, a sum of money equal to six percent (6%) of the Company's Gross Revenue, less any adjustments for uncollectable accounts, from the sale of Natural Gas to Customers within the corporate limits of the City. The Franchise fee payment shall 4 ORDINANCE #2021-017 be deemed paid on time if post -marked within thirty (30) days of the close of the preceding billing month. Section 11. Identification of City Residents No less than thirty (30) days prior to the Effective Date, the City shall deliver to the Company such information (including City limit streets and block numbers) as is needed by the Company to determine which of its customer are located within the City limits. The City shall also provide such information no less than thirty (3 0) days prior to the effectiveness of any change in its limits, whether by addition, annexation, or consolidation, or upon the Company's request. The Company shall be relieved of any obligation to pay franchise fees to the extent the City has failed to provide information in accordance with this Section. Section 12. Accounts and Records The Company shall maintain accounting, maintenance, and construction records as prescribed by the FPSC. The Company shall establish and maintain appropriate accounts and records in such detail that revenues within the corporate limits of the City are consistently declared separately from all other revenues, and such records shall be maintained within the State of Florida. Upon request by the City, or its designated representative, and execution of a confidentiality agreement reasonably satisfactory to the Company, the Company shall make available the records for inspection within thirty (30) days to the City for the determination of the accuracy of the Gross Revenues upon which the Company's franchise fee is based. The Company shall maintain its billing records only for the period of time required by the FPSC and any examination conducted after such period shall be confined to the billing records then available. Section 13. Insurance During the term of this Franchise, the Company shall maintain in effect the insurance coverages and/or self-insurance described below. The coverage requirements set forth in this Section 13 may be satisfied, in whole or in part, with self-insurance. Company shall file with the City Clerk and shall keep in ftill force and effect at all times during the effective period of the Tenn, insurance certificates evidencing a general liability insurance policy or policies issued by an insurance carrier licensed to do business in the state of Florida or evidence of self-insurance within the corporate limits of the City as they currently exist or may exist in the ftiture. GENERAL LIABILITY: The policy shall provide for the minimum limit of $10,000,000.00 for injury or death to any one person or more persons, per occurrence or involved in any one incident or accident, and for the minimum sum of $10,000,000.00 for damage to property, resulting from any one accident, and of the said minimum sums shall remain in fall force and shall be undiminished during the effective term of this Franchise Agreement. The policy shall include coverage for sudden and accidental pollution events. ORDINANCE #2021-017 AUTOMOBILE LIABILITY: The require limits, with a combined single limit of $5,000,000.00 per occurrence for any one accident or loss. The City shall be named as an additional insured on such automobile policy(ies) for the liability arising from this Franchise Agreement. WORKERS'COMPENSATION: Part A with Statutory Limits; Employers' Liability Limit Part B. of not less than $1,000,000.00. Company shall notify the Clerk of the City, in writing, at least thirty (30) days before any material alteration, material modification, or cancellation of such policy and the City shall be provided copies of certificates annually. Section 14. Indemnification In consideration of the permission granted to the Company by this Franchise Agreement, the Company agrees to indemnify and hold harmless the City, its officers, agents and employees from and against claims, suits, actions, and causes of action, caused by the Company's willful misconduct, any negligent act or omission, or negligent operation of the Distribution System within the City during the term of this Franchise and resulting in personal injury, loss of life or damage to property sustained by any person or entity, through or as a result of the doing of any work authorized or the failure to do work required, and including all reasonable costs, attorney fees, expenses, and liabilities incurred by the City in connection with any such claim, suit, or cause of action, including their investigation and the defense of any action or proceeding brought on it and any order, judgment or decree which may be entered in any such action or proceeding or as a result; provided, however, that neither the Company nor any of its employees, agents, contractor, licensees, or sublessees shall be liable under this section for any claims, demands, suits, actions, losses, damages, or expenses, including attorney fees, arising out of the negligence, strict liability, intentional torts, criminal acts, or error of the City, its officers, agents, or employees. The provisions of this section shall survive the expiration or earlier termination of this Franchise Agreement. Notwithstanding any provision in this Ordinance to the contrary, the Company's liability under this Franchise Agreement shall be limited to the assets and business of Peoples Gas System, a division of Tampa Electric Company, as if Peoples were incorporated separate and apart from Tampa Electric Company. Nothing in this Franchise Agreement shall be construed to affect in any way the City's rights, privileges, and immunities under the doctrine of "Sovereign Immunity" and as set for in Section 768.28, Florida Statutes. Section 15. Termination by City Violation by the Company of any of the covenants, terms, and conditions of this Franchise Agreement, or default by the Company in observing or carrying into effect any of the covenants, terms and conditions, shall authorize and empower the City to declare a termination of this Franchise Agreement; provided, however, that before such action by the City shall become operative and effective, the Company shall have been served by the City with a written notice setting forth all matters pertinent to such violation or default, and describing the action of the City with respect to the violation or default, and the Company shall have had a period of sixty (60) days 6 ORDINANCE #2021-017 after service by certified U.S. mail of such notice, or, in the event such cure reasonably requires a period of more than sixty (60) days, then sixty (60) days to present a plan reasonably satisfactory to the City to effect such cure and provided further that any violation or default resulting from a strike, a lockout, an act of God, or any other cause beyond the control of the Company shall not constitute grounds for termination. Section 16. Changes in Provisions Changes in the terms and conditions may be made by written agreement between the City and the Company, pursuant to an Ordinance amendment. Section 17. Severability; Change in Law (A) If any section, part of a section, paragraph, sentence, or clause of this Franchise Agreement shall be adjudged by a court of competent jurisdiction to be invalid, such decision shall not affect the validity of any other portion of this Ordinance, but shall be restricted and limited in its operation and effect to that specific portion of the Ordinance involved in the controversy in which such decision shall have been rendered; provided, however, that should elimination of the specific portion of the Franchise Agreement adjudged to be invalid result in significant adverse consequences to a party, then that party may terminate this Franchise Agreement by providing thirty (30) days' written notice to the other party. (B) Upon the issuance by a court of competent jurisdiction of an order, ruling, or decision, or the enactment or adoption by the Florida Legislature, the City, or any other governmental or regulatory body of a law, rule, regulation, or ordinance, that materially diminishes a municipality's ability to exact franchise fees from a utility, or that effectively does away with the ability of a municipality to grant a franchise altogether, then the Company or City may terminate this Franchise Agreement by providing ninety (90) days' written notice to the other party. Section 18. City's Right to Regulate Use Of Streets Not Abrogated Nothing in this Franchise Agreement shall be construed as a surrender by the City of its rights or power to pass ordinances regulating the use of its streets in accordance with City's police powers or property rights, provided however, that the City shall not pass any ordinance or regulation that results in a material change in the rights or obligations of the Company under the Franchise Agreement, unless duly agreed to by the parties, in writing. law. Section 19. Governing Law This Franchise shall be governed by the laws of the State of Florida and applicable federal 7 ORDINANCE #2021-017 Section 20. Effective Date This Franchise Agreement shall become effective upon its acceptance by the Company, which acceptance must be evidenced in writing within sixty (60) days of the City's passage and adoption of this Ordinance. Section 21. Severability If any clause, section, sentence or phrase of this Ordinance is for any reason held unconstitutional or invalid by a competent jurisdiction, the holding shall not affect the validity of the remaining portions of this Ordinance. Section 22. All ordinances or parts of ordinances, resolutions or parts of resolutions in conflict with this Ordinance are repealed to the extent of such conflict. Section 23. This Ordinance shall be in force and take effective immediately upon its passage and adoption. PASSED on first reading on May 25, 2021. PASSED AND ADOPTED on second reading on June 8, 202 1. ATTEST: THOMAS SCHNEIDER, MC CITY CLERK Is APPROVED AS TO FORM AND CORRECTNESS: THOMAS I �kMB 0 CITY ATTO 8 TAMARA MAYOR ORDINANCE #2021-017