HomeMy WebLinkAboutO-2006-012 People's Gas Franchise ORDINANCE 2006-012
I FLORIDA GRANTING AN ORDINANCE OF THE CITY OF DANIA BEACH, F O IDA GRA G
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 SUCH
FRANCHISE MAY BE EXERCISED; MAKING FINDINGS; 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 fifteen (15) 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, THAT:
Section 1. Definitions. For the purposes of this Ordinance, the following terms shall
have the meaning given.
A. "Customer" shall mean any person, firm, public or private corporation, or
governmental agency 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. "Gas" or "Natural Gas" shall mean natural gas, manufactured gas, a
mixture of gases or all of the foregoing which is distributed in pipes and
measured by meter on the Customer's premises. It shall not mean propane
gas or liquefied petroleum gas (commonly referred to as "bottled gas") or
any other fuel that is typically delivered by truck and stored in tanks.
E "Gross Revenues" shall mean all revenues (as defined by the Florida
Public Service Commission) received by the Company from any Customer
from the sale, transportation, distribution or delivery of Gas.
F. "Facilities" or "equipment" shall mean any pipe, pipe line, tube, main,
service, trap, vent, vault, manhole, meter, gauge, regulator, valve, conduit,
appliance, attachment, structure or structures, and appurtenances used or
useful in the distribution of gas, located or to be located in, upon, along,
across, or under the streets or within the public rights of way.
G. "Franchise" or "Franchise Agreement" shall mean this agreement, as
passed and adopted by the City and accepted by the Company, as provided
in Section 23 below.
H. "FPSC" shall mean the Florida Public Service Commission or any
successor agency.
I. "Distribution System" shall mean any and all transmission pipe lines, main
pipe lines and Customer pipe lines, together with all necessary and
desirable appurtenances, that are situated within the corporate limits of the
City and are reasonably necessary for the sale, transportation, distribution
or delivery of Natural Gas for the public and private use of Customers.
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 of the
public streets, alleys, highways, waterways, bridges, easements and other public places of the
City, as they now'exist or may be later constructed, opened, laid out or extended within the
present incorporated limits of the City, or in such territory as may be later added or annexed to,
or consolidated with, the City, a Distribution System subject to the terms and conditions
contained in this Ordinance. Storage facilities are specifically excluded from this franchise. This
franchise is for distribution only.
Section 3. Term. Except as provided in Section 15, the Franchise granted shall be for
a period of fifteen (15) years from the effective date of this ordinance.
Section 4. AssijZnment.
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 Commission of
the City, which shall not be unreasonably withheld or unduly delayed. No assignment shall be
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allowed without the assignee assuming the obligations of the Franchise Agreement with the City.
Any assignee shall acknowledge in writing that it is bound by the terms of this Franchise
Agreement.
B. Notwithstanding the foregoing, the Company may lease, assign or otherwise
alienate and transfer this Franchise in connection with the lease or sale of the Distribution
System or upon its merger and consolidation with, or transfer to, any other corporation engaged
in similar business (including any 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 without the express consent of the City Commission of the City, provided that any
successor-in-interest to the Distribution System agrees to be bound by the terms of the Franchise
Agreement. Any assignee shall acknowledge in writing that it is bound by the terms of this
Franchise Agreement.
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
streets, alleys, avenues, easements, and public rights of way, and the streets shall not be
obstructed, and before, except in an emergency situation, the Company makes any excavation or
disturbs the surface of any of the streets, alleys, or other public rights of way, it shall have made
application for and received a permit from the appropriate City authority. The City shall issue,
or if applicable deny, permits within ten (10) business days of application by the Company. The
Company shall, with due diligence and dispatch, place such streets, easements or public rights of
way in as good condition and repair as before such excavation or disturbance was made, and in
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default of that obligation the City may make such repairs and charge the reasonable cost of them
to the Company and collect the same from it.
To the extent consistent with Florida law, the Company agrees to abide by all the rules
and regulations and ordinances which the City has passed or might pass in the future, and further
agrees to abide by any established policy which the City or its duly authorized representative has
passed, established, or will establish; provided, however, 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.
Section 7. Maintenance. All such 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 or other regulatory body having jurisdiction over the Company.
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 and laws, specifications contained in City
permits. The Distribution System shall be continually maintained in good and safe condition and
all repairs made promptly, safely, 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 or other
governmental body having jurisdiction in, across, along, or under any street, alley, public way,
easement, place, or other public rights of way. Whenever, by reason of establishing a grade or by
reason of changes in the grade of any street, or by reason of the widening, grading, paving, or
otherwise improving present or future streets, alleys, or other public rights of way, or in the
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location or manner of construction of any water pipes, electric conduits, sewers, or other
underground structure, it shall be deemed necessary by the City or other governmental body to
alter, change, adapt, or conform any portion of the Distribution System of the Company, such
alterations, or changes, shall be made by the Company as ordered in writing by the City or other
governing body, without claim for reimbursement. If the City shall require the Company to adapt
or conform any portion of its Distribution System or in any way to alter, relocate or change its
property to enable any other person or entity to use any street, alley, easement, highway or public
rights-of-way of the City, as part of its permitting or approval process, the City shall (to the
extent permitted by law) require the person or entity desiring or occasioning such alteration,
relocation or change to reimburse the Company for any loss, cost or expense caused by or arising
out of such change, alteration or relocation of any portion of the Company's facilities. The
Company further agrees that it will use reasonable care during the alteration or relocation of any
• portion of its Distribution System so as to not 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. Within thirty (30) days after the close of the first full
billing month following the effective date of this Franchise Agreement, and each month
thereafter during the term of this Franchise Agreement, the Company, its successors or assigns,
shall pay to the City, or its successors, a sum of money which, when added to the amount of all
taxes, licenses, permits, or other impositions levied or assessed by or on behalf of the City upon
the Company, is equal to six percent (6%) of the Company's Gross Revenue, less any
adjustments for uncollectible accounts, from the sale, or delivery of Natural Gas to Customers
within the corporate limits of the City. The franchise fee payment shall be deemed paid on time
if post-marked within thirty (30) days of the close of the preceding billing month, subject to
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interest at one percent (1%) monthly. In the event the Company is granted a franchise from
another municipality or governmental entity in Palm Beach, Broward or Miami-Dade Counties
that requires it to pay a franchise fee in excess of six percent (6%), or a more expansive
definition of gross revenue is used, then the City shall be entitled to the higher franchise fee or to
the utilization of such definition, once it advises the Company in writing.
Section 11. Franchise Parity. If, during the term of this Franchise Agreement, the
City, by franchise agreement or ordinance, allows other gas providers, gas consumers or gas
transporters ("Alternate Gas Providers") the right, privilege or franchise to construct, maintain,
operate or use gas facilities in, under, upon, over or across the present or future streets, alleys,
bridges, easements or other public rights-of-way of the City, for the purpose of supplying or
delivering Natural Gas to customers located within the corporate limits of the City or receiving
such gas from a person other than the Company within such corporate limits, and imposes a
franchise compensation obligation or an equivalent on such Alternate Gas Provider for any
customer or class of customers that is less than that imposed with respect to the same Customer
or class of Customers under this Franchise Agreement, the franchise compensation rate base or
both to which such rate is applied with respect to the same class of customers shall be reduced
under this Franchise Agreement so that the franchise compensation paid under this Ordinance for
such Customer class is no greater than the franchise compensation payable by such Alternate Gas
Provider under the franchise agreement or ordinance applicable to it, when compared on a
dollars-per-therm basis. In the event that the City determines not to impose any franchise
compensation by agreement, ordinance or otherwise on any such Alternate Gas Provider, the
Company's obligation to pay a franchise fee under this Franchise Agreement with respect to
revenues derived from the provision of service by the Company to the comparable class of
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customers served by such Alternate Gas Provider thereafter shall be extinguished. No
reimbursement for past charges shall be made.
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, and be open at all reasonable times for inspection
by the duly authorized representatives of the City pursuant to an appropriate confidentiality
agreement. Upon request by the City, or its designated representative, the Company shall make
available such records 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
iconducted after such period shall be confined to the billing records then available.
No less than thirty (30) days prior to the effective date of a change in the City limits,
whether by addition, annexation, or consolidation, the City shall deliver to the Company written
notice of such occurrence, and include in such notice a description of the affected territory.
Section 13. Insurance. During the term of this Franchise, the Company shall file with
the City Clerk and shall keep in full force and effect at all times during the effective period,
insurance certificates evidencing the following insurance, self-insurance policies or both:
General Liability:
Insurance or evidence of self-insurance within the corporate limits of the City, as they
currently exist or may exist in the future, the terms and conditions of which shall provide
that the City is named as an additional insured as to the Company's construction or
operation of a Natural Gas Distribution System within the corporate limits of the City, as
they currently exist or may exist in the future. Coverage limits of $10,000,000.00 per
occurrence shall remain in full force and shall be undiminished during the effective
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period of this Ordinance. The policy shall include coverage for sudden and accidental
pollution events.
Automobile Liability:
Insurance, self-insurance or both with a combined single limit of $5,000,000.00 per
occurrence for any one accident or loss. The required limits may be satisfied by a
combination of self-insurance, primary insurance, excess or umbrella insurance or all of
the foregoing. The City shall be named as an additional insured on such automobile
policies.
Workers' Compensation:
Insurance, self-insurance or both, Statutory Limits Part A $1,000,000.00 Employers'
Liability Limit Part B.
Every such insurance policy shall contain a provision by which every company executing
the same shall obligate itself to notify the Clerk of the City, in writing, at least thirty (30) days
before any material alteration, modification, or cancellation of such policy is to become effective
and the City shall be provided copies of policies or certificates annually.
Section 14. Indemnification. In consideration of the permissions granted to the
Company by this Franchise Agreement, the Company agrees to defend, indemnify and hold
harmless the City, its officers, agents and employees from and against claims, suits, actions, and
causes of action, caused by or arising out of and to the extent of the Company's willful
misconduct, negligent act or omission, and 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 in this Ordinance or the failure to do work required in this Ordinance, and including all
reasonable costs, attorney fees, expenses and liabilities incurred by the City in connection with
any such claim, suit, action or cause of action including the investigation of them, and the defense
of any action or proceeding brought on them and any order, judgment or decree which may be
8 ORDINANCE#2006-012
entered in any such action or proceeding or as a result of them, except that neither the Company
nor any of its employees, agents, contractors, licensees, or sublessees shall be liable under this
section for any claims, suits, actions, damages, expenditures, including attorneys' fees, or causes
of action arising out of injury, loss of life or damage to persons or property caused by or 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. 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 forth in Section 768.28, Florida Statutes.
Section 15. Termination or Revocation of Grant. Violation by the Company of any
of the covenants, terms, and conditions of this Ordinance, 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 and to revoke and cancel all rights granted under
this Ordinance, 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 Commission
with respect to them, and the Company shall have had a period of sixty (60) days after service of
such notice within which to cure such violation or within which to present a plan, satisfactory to
the City, acting reasonably, 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 revoking and terminating any rights under this
Ordinance.
Section 16. Superior Public Purpose. If the City, at any time, shall have a need for
• the use of public roads, streets and rights-of-way or any part of them, for any proper public
9 ORDINANCE#2006-012
purpose, the Company shall, at its own cost and expense, adapt, alter, relocate or conform its
mains, service pipes or other appurtenances in a manner acceptable to the City. If, however, the
City's purpose is to enable another person or entity to use the public roads, streets or rights-of-
way, then the City shall, as set forth in Section 9 above, require such person or entity to
reimburse the Company.
Section 17. Rates, Rules And Regulations. The Company shall provide gas service
within the limits of this Franchise on reasonable terms and conditions at just, reasonable and
nondiscriminatory rates to all who request such services, as long as such service is feasible as
determined at the sole discretion of the Company, during" the term of this Franchise and
thereafter, as required by law or by duly constituted public regulatory body. The Company is
subject to the rules and regulations of the FPSC.
Section 18. Complaints. All complaints shall be resolved by Company in accordance
with the FPSC Commission rules and regulations.
Section 19. City's Right to Regulate Use of Streets Not Abrogated. Nothing in this
Franchise Agreement shall be construed as surrender by the City of its right or power to pass
ordinances regulating the use of its streets in accordance with City's police powers or property
rights; provided, however, 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.
Section 20. Changes in Provisions. Changes in the terms and conditions of this
Ordinance may be made by written agreement between the City and the Company.
Section 21. Severability; Change in Law.
A. If any section, part of a section, paragraph, sentence, or clause of this Ordinance
shall be adjudged by a court of competent jurisdiction to be invalid, such decision shall not affect
the validity of any other portion, but shall be restricted and limited in its operation and effect to
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that specific portion 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 22. Governinlz Law. This franchise shall be governed by the laws of the State
of Florida and applicable federal law.
Section 23. Effective Date. This Franchise Agreement shall become effective upon its
acceptance by the Company, which acceptance must be evidenced in writing by Company within
thirty (30) days of the City's passage and adoption of this Ordinance. Notwithstanding the
foregoing, the prior Franchise Agreement expired on January 9, 2005, and Company and City
both agree that this Franchise Agreement shall be retroactive to January 9, 2005.
Section 24. That all ordinances or parts of ordinances and all resolutions or parts of
resolutions in conflict with the provisions of this Ordinance are repealed.
PASSED on first reading on March 28, 2006.
. PASSED AND ADOPTED on second reading on April 11, 2006.
11 ORDINANCE#2006-012
PATRICIA FLURY
• MAYOR-COMMISSIONER
ATTEST:
LOUISE STILSON, CMC
CITY CLERK
APPROVED AS TO FORM ND CORRECTNESS:
BY:
TH MA J. SBRO
CITY ATTORNEY
12 ORDINANCE#2006-012
• � 4
May 9, 2006
Tom Ansbro
City of Dania Beach
100 West Dania Beach Boulevard
Dania Beach, FL 33004
RE: NATURAL GAS FRANCHISE AGREEMENT WITH THE CITY OF DANIA BEACH
Dear Mr. Ansbro:
In Compliance with Section 23 of Ordinance#2006-012 as adopted by the City Council of the City
of Dania Beach at their meeting of April 11, 2006, Peoples Gas System, Inc. of Tampa, FL hereby
accepts in writing the franchise granted to it under and by virtue of the provisions of Ordinance
#2006-012 and agrees to abide by the terms and conditions thereof.
PEOPLES GAS SYSTEM, INC.
By:
William Can 1, President
PEOPLES GAS
702 NORTH FRANKLIN STREET
P. 0. BOX 2562
TAMPA, FL 33601-2562 IS13) 275-3900
AN EQUAL OPPORTUNITY COMPANY HTTP://WWW.PEOPLESGAS.COM
1
CITY OF DANIA BEACH
MEMORANDUM
TO: Mayor and Commissioners
CC: Dominic Orlando, Public Services Director
Patricia Varney, Finance Director
Ken Land, Fire Chief
Louise Stilson, City Clerk
FROM: Tom Ansbro, City Attorney
DATE: March 14, 2006
• RE: Renewal of Peoples Gas Franchise Ordinance
Attached is a copy of the referenced ordinance. The following is a summary:
1) Provides for a 15 year franchise with Peoples Gas System (" Company") for
continued use of City public rights-of-way;
2) Provides for a franchise fee of 6% of the Company's gross revenue (this
compensation is standard; it was confirmed with other local cities);
3) Provides that if the Company is granted a franchise from another governmental
entity in Palm Beach, Broward or Miami-Dade County requiring a franchise fee in
excess of 6%, then the City shall be entitled to the higher franchise fee;
4) During the franchise term the Company shall maintain the following insurance
and/or self-insurance policies:
General Liability- $10,000,000.00 per occurrence;
Automobile Liability- $5,000,000.00 per occurrence;
Workers' Compensation- Insurance or self-insurance Statutory Limits
Part A; and
$1,000,000.00 Employers' Liabil ity Limit Part B.
Mayor and Commissioners
March 14, 2006
Page 2 of 2
•
5) Negotiations have taken one year since the prior agreement expired; consequently
the ordinance is designed to become effective retroactively as of January 9, 2005.
This ordinance is ready for adoption.
TJA:slw
Attachment
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F
•
NOTICE OF HEARING BEFORE CITY COMMISSION
CITY OF DANIA BEACH, FLORIDA, REGARDING
ADOPTION OF THE FOLLOWING PROPOSED ORDINANCE:
NOTICE IS GIVEN that on April 11, 2006, at 7:00 p.m. or as soon thereafter as the
matter may be heard, the City Commission of the City of Dania Beach, Florida, will
conduct a public hearing in the Commission Chamber at Dania Beach City Hall, 100
West Dania Beach Boulevard, Dania Beach, Florida, to consider the proposed adoption
of the following Ordinance:
ORDINANCE NO. 2006-012
AN ORDINANCE 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 SUCH FRANCHISE MAY BE EXERCISED;
MAKING FINDINGS; PROVIDING FOR CONFLICTS; PROVIDING
FOR SEVERABILITY; FURTHER, PROVIDING FOR AN EFFECTIVE
DATE.
• Copies of the proposed Ordinance are on file in the Office of the City Clerk, City Hall,
100 West Dania Beach Boulevard, Dania Beach, Florida, and may be inspected by the
public during normal business hours.
Interested parties may appear at the aforesaid meeting and be heard with respect to the
proposed. Any person who decides to appeal any decision made with respect to any
matter considered at this hearing will need a record of the proceedings and for such
purpose may need to ensure that a verbatim record of the proceedings is made, which
record includes the testimony and evidence upon which the appeal is to be based.
In accordance with the American with Disabilities Act, persons needing assistance to
participate in any of the proceedings should contact the City Clerk's Office, 100 West
Dania Beach Boulevard, Dania Beach, Florida 33004, (954) 924-3622 at least 48 hours
prior to the meeting.
/s/Louise Stilson
City Clerk
Run in Sun Sentinel: March 31, 2006
•