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Ordinance 90-2679 ORDINANCE NO. 90-2679 AN ORDINANCE OF THE CITY OF MIAMI BEACH, FLORIDA, GRANTING TO PEOPLES GAS SYSTEM, INC. , A FLORIDA CORPORATION, ITS SUCCESSORS AND ASSIGNS, A NON-EXCLUSIVE FRANCHISE FOR A PERIOD OF TWENTY (20) YEARS TO CONSTRUCT, OPERATE AND MAINTAIN GAS SYSTEM FACILITIES IN THE CITY OF MIAMI BEACH, FLORIDA; PRESCRIBING THE TERMS AND CONDITIONS OF SUCH FRANCHISE; PROVIDING FOR PAYMENT OF A FRANCHISE FEE; PROVIDING FOR INDEMNIFICATION; PROVIDING FOR INSPECTION OF BOOKS AND RECORDS; PROVIDING FOR REVOCATION AND TERMINATION OF THE FRANCHISE; PROVIDING FOR ACCEPTANCE OF THE FRANCHISE; PROVIDING FOR SEVERABILITY; AND PROVIDING FOR AN EFFECTIVE DATE. BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA: SECTION 1. SHORT TITLE. This Ordinance shall be known and may be cited as the "Peoples Gas System Franchise Ordinance" . SECTION 2 . FINDINGS, DETERMINATIONS AND DECLARATIONS. The City Commission of the City of Miami Beach, Florida, does hereby find, determine and declare as follows: (a) That it is in the public interest to ensure that service areas within its corporate limits are adequately provided with high quality gas service; (b) That after due notice to the public, the City Commission of the City of Miami Beach held a public hearing affording all interested parties an opportunity to address the City Commission concerning the granting of a non-exclusive franchise in the City of Miami Beach to Peoples Gas System, Inc. , a Florida corporation. (c) That after the close of said public hearing and due deliberation, the City Commission of the City of Miami Beach in open session at a regular meeting voted to award a franchise to Peoples Gas System, Inc. , a Florida Corporation. (d) That the grant of this franchise in the City is in the public interest. SECTION 3 . GRANT OF NON-EXCLUSIVE FRANCHISE. Peoples Gas System, Inc. a Florida corporation hereinafter referred to as "Grantee" , is hereby granted a non- exclusive right, privilege and franchise to construct, operate and maintain gas system facilities in, under, over and on the streets of the City of Miami Beach, Florida upon the terms and conditions set forth below. SECTION 4 . DEFINITIONS. For the purposes of this Ordinance the following terms, phrases, words, abbreviations 1 and their derivations shall have the meaning given herein. (a) "City Commission" shall mean the governing body of the City or any successor to the legislative powers of the present governing body. (b) "City" shall mean the City of Miami Beach, Florida. (c) "City Manager" is the chief administrative officer of the City. (d) "Grantee" shall mean Peoples Gas System, Inc. , a corporation organized pursuant to the laws of the State of Florida, and its successors and assigns. (e) "Street" shall mean the surface of and the space above and below any public street, road, bridge, highway, freeway, lane, path, public way or place, alley, court, boulevard, parkway, drive or other easement now or hereafter held by the City for the purpose of public travel as they now exist, or as they may be established at any time during the term of this franchise. (f) "Gross Revenues" shall mean the Grantee' s gross sales of gas provided to residential, business and commercial customers within the corporate limits of the City, less any adjustments for uncollectible accounts, and exclusive of sales tax and utility taxes. (g) "Facilities" shall mean and include, but not be limited to, pipes, gas mains, supply pipes, conduits, ducts and other means of conveyance of gas, located or to be located in, under and over the streets of the City of Miami Beach, Florida. SECTION 5. FRANCHISE TERM. The Franchise granted pursuant hereto shall commence on the effective date of this Ordinance and shall terminate twenty (20) years thereafter. SECTION 6. GRANTEE'S ACKNOWLEDGEMENT OF CITY'S POLICE POWERS: COMPLIANCE WITH LAWS AND REGULATIONS. (a) Grantee shall comply with the terms of the Charter of the City of Miami Beach, and all applicable codes, rules, regulations and laws, as they presently exist, and as they may be subsequently amended or created. (b) This Franchise does not obviate or modify the provisions of Section 337 . 401 (2) , Florida Statutes (1986) which requires Grantee to obtain authorization by written permit issued by the City and other governing authorities which have jurisdiction over any street for the installation, location or relocation of Grantee's facilities. All said permits shall require the Grantee to be responsible for any damage resulting from the issuance of such permits. The provisions of that section of State law is incorporated in this Franchise by this reference and such provisions shall be 2 applicable for the duration of the term of this Franchise. SECTION 7 . FRANCHISE FEE; PAYMENT TO CITY; ANNUAL CERTIFIED STATEMENT REQUIRED; LATE CHARGES; DELINQUENCY; EXTENSIONS; INSPECTION OF GRANTEE'S RECORDS. (a) Grantee shall pay Franchise Fees to the City during the term of the Franchise as consideration for and as a condition of the grant to Grantee of the non-exclusive right to occupy municipal streets and rights-of-way for the construction, operation and maintenance of Grantee's facilities. The Franchise Fee shall be calculated as an amount equal to six percent (6%) of the Gross Revenues of the Grantee, as defined in Section 4 (f) of this Franchise, received by Grantee in each month. Such fee shall be based upon a statement as described in subsection (d) of this Section which shall be forwarded to the City. Payment of the Franchise Fees shall be in addition to any other tax or payment owed or paid to the City by Grantee. Such Franchise Fee shall be due and payable by Grantee on a monthly basis within thirty (30) days after the last day of each month. (b) In the event any monies due and owing under Section 7 (a) above are not timely paid as specified therein, the City may impose and Grantee agrees to pay, a late charge equal to one percent (1%) per month on the unpaid balance. (c) Should any of Grantee's payments as required under this Section be delinquent for thirty (30) days, the City may proceed under Section 16 herein. (d) The Grantee at its sole expense shall file with the City, for each month during the term of this Franchise, a statement in such reasonable form and detail as shall from time to time be prescribed by the City showing the gross revenues of the Grantee as defined in Section 4 (f) of this Franchise for the preceding fiscal month. Each such statement shall be sworn to by an authorized official of Grantee. Such statement shall be presented to the City by the Grantee on or before the 30th day of each month. (e) Any statement rendered by the Grantee to the City is for accounting purposes only. SECTION 8. SERVICE STANDARDS. The Grantee shall maintain and operate all present and future gas systems facilities in such manner as will enable it to furnish adequate and continuous service to its customers. SECTION 9 . INDEMNIFICATION. The parties hereto specifically agree and understand that the award of this Franchise to Grantee and all terms, promises, covenants, conditions and obligations contained in this Franchise are sufficient consideration for the Indemnification provisions contained herein, in 3 accordance with Section 725. 06, Florida Statutes (1986) . For and in consideration of the sum of $25. 00 and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties hereto, and in consideration of the award of this Franchise to Grantee, Grantee shall indemnify City as follows: The Grantee shall indemnify, hold harmless and defend the City, its officers, agents and employees, against and assume all liability for, any and all claims, suits, actions, damages, liabilities, expenditures, or causes of actions of any kind arising from this Franchise and/or arising from the construction, operation and maintenance of a gas utility system and related facilities and/or the use of the public streets for the purposes authorized herein and resulting or accruing from any negligence, act, omission or error of the Grantee, its agents or employees and/or arising from the failure of the Grantee, its agents or employees to comply with each and every covenant of the Franchise or with any other ordinance or law regulating the use of the streets of the City resulting in or relating to, bodily injury, loss of life or limb or damage to property sustained by any person, firm, corporation or other business entity. Grantee shall save the City, its officers, agents, employees harmless from and against all judgments, orders, decrees, attorney' s fees, costs, expenses and liabilities incurred in and about any such claim, investigation or defense thereof, which may be entered, incurred or assessed as a result of the foregoing. Grantee shall defend, at its sole cost and expense any legal action, claim or proceeding instituted by any person against the City, its officers, agents and employees as a result of any claim, suit or cause of action accruing from this Franchise, for injuries to body, life, limb or property as set forth above. SECTION 10 . INSURANCE. (a) The Grantee must maintain during the entire franchise agreement, in full force and effect, the following insurance coverages: (1) Commercial general liability in the amount of $5, 000, 000 per occurrence for bodily injury and property damage. This policy must include coverage for contractual liability and specifically cover the indemnity agreement in Section 9 . The 4 City of Miami Beach must be named as an additional insured on this policy. (2) Automobile liability in the amount of $1, 000, 000 per occurrence for bodily injury and property damage, covering all vehicles owned, leased or used by the grantee. (3) Workers' compensation and employer' s liability, as required by Florida Statutes. (b) All companies providing insurance shall be authorized to do business in the State of Florida and rated B+:VI or better by Best's Key Rating Guide, latest edition. (c) No change or cancellation of this insurance shall be made without thirty (30) days written notice to the City's Risk Manager. (d) As evidence of the above coverage, the Grantee must provide original certificates of insurance to the Risk Manager and these must be approved by the Risk Manager prior to the commencement of this agreement. The Grantee must submit a new certificate evidencing continuing or replacement coverage prior to the expiration date of the policy, each year during the course of this franchise agreement. (e) Any deviation from these requirements must be approved by the City' s Risk Manager. (f) It is understood and agreed that the continuance of operations by the Grantee without the required insurance will be considered a material breach of this Franchise Agreement by virtue of which the City may terminate the same upon thirty (30) days written notice of the Grantee. SECTION 11. BOOKS AND RECORDS OF GRANTEE. All books and records of the Grantee concerning Grantee' s operations within the corporate limits of the City applicable to this Franchise shall be made available for inspection and audit by the City or its designee during normal business hours of Grantee, for the purpose of verifying any statements, including statements of revenues furnished by the Grantee to the City and for the purpose of examining and auditing the gross receipts of the Grantee from which Franchise Fees are computed. Further, the City or its representative shall have the right to utilize through the Grantee whatever means or mechanisms used by Grantee to record, store and retrieve the data necessary to make such verification of Franchise Fees. The City shall have the right to recompute any and all amounts paid under this Franchise. In the event a disagreement arises between Grantee and City as to any amount paid or to be paid by Grantee, and the parties are unable to resolve the disagreement within thirty (30) days from the date City furnished the Grantee written notice of the disagreement, then the provisions of Section 16 of this Franchise shall apply. 5 SECTION 12 . USES PERMITTED TO GRANTEE. Grantee is hereby authorized to use streets within the City to erect, install, construct, repair, replace, reconstruct and maintain Grantee' s facilities as may be necessary and appurtenant to the operations authorized under the Franchise, subject to the conditions set forth below. (a) Grantee shall be responsible for securing any permits, license or agreements that may be necessary to the Grantee or required by any private property owners, public utilities or governmental agencies. (b) Grantee's facilities shall be installed or relocated, whichever is applicable, as to cause a minimum of interference with the rights and reasonable convenience of property owners, consistent with the rights of the public interest as provided by the City Charter, which owners adjoin any of said streets. Grantee' s facilities shall be installed or relocated, whichever is applicable, from time to time so as to interfere as little as possible with traffic over the streets, waterways, bridges and public places of the City, and to allow for reasonable egress from and ingress to abutting property. Prior to the complete blocking of any streets or public places, Grantee shall consult with the City Public Works Director, Police Chief, or their successors, and other proper City Officials toward the end of the least possible traffic interference. (c) Grantees' facilities shall be installed or relocated, whichever is applicable, in locations in the right-of-way so as to cause a minimum of interference with the utilization of the right-of-way by the City. The City retains the right, on a case-by-case basis, to prohibit the installation or relocation, whichever is applicable, of Grantee's facilities in a particular location of a City street, in the event the City in its sole and reasonable discretion determines that such facilities will interfere with the use of the City street by the City. (d) Grantee shall place its facilities underground whenever reasonably possible. (e) Grantee's facilities shall be constructed, installed, repaired, replaced and relocated by the Grantee with the approval by permit of the proper City Officials; and the Grantee shall at its own expense replace without undue delay any sidewalks, pavement, subgrade, soil, grass or landscaping that may be displaced by the Grantee and restore same to as good condition as same existed prior to such construction, installation, repair or replacement of Grantee' s facilities. Upon failure of the Grantee to do so within ten (10) days after receipt by Grantee of written notice from the City Public Works Director or his successor, the City may repair and replace such portion of the sidewalk or street or other place that may have been disturbed by said Grantee, and the cost of the same including 6 administrative and engineering costs shall be paid by the Grantee. The proper City Officials may grant Grantee a reasonable extension of the foregoing time period for good cause shown. Notwithstanding any provision herein to the contrary, in the event the City Public Works Director or his successor, other proper City Officials, or Grantee construes a repair or replacement to be an emergency, Grantee shall make such repairs and replacements as soon as practical. (f) Grantee shall endeavor to coordinate all construction, installation or repairs of Grantee' s facilities with all governmental entities having jurisdiction over Grantee, and utilities which provide services in the vicinity of such activities of Grantee, in order to minimize any adverse effects, disruption or disturbance. (g) All street cuts made by Grantee under this Franchise shall be maintained by Grantee in accordance with the standards determined and required by the City Public Works Director or his successor as such standards are applied to all other franchisees of the City. (h) Whenever the City shall determine through its City Commission that the public interest requires facilities of Grantee to be reconstructed, relocated, altered or discontinued at Grantee' s expense, it shall be the obligation of the Grantee within thirty (30) days after receipt of written notice of such requirement from the City Public Works Director, or within such other longer time period which is acceptable to the City to comply with such City determination. SECTION 13 . PREFERENTIAL OR DISCRIMINATORY PRACTICES PROHIBITED. Grantee shall not as to rates, charges, service facilities, rules, regulations or in any other respect, make or grant any undue preference or advantage to any person or subject any person to any undue prejudice or disadvantage. SECTION 14 . COMPLAINTS. Grantee shall maintain a business office accessible to residents of the City for the resolution of complaints regarding the quality of service, equipment malfunctions and similar matters. Grantee shall keep a record of all complaints in compliance with Florida Statutes and the rules and regulations of the Public Service Commission of the State of Florida and make copies of such complaints available to the City for inspection. SECTION 15. RESTRICTION AGAINST ASSIGNMENT. The Grantee shall not lease, assign or otherwise alienate this Franchise or any renewal of this Franchise, except with the consent of the City Commission expressed by ordinance, and evidences by a written assignment and consent to same, recorded in the public records of Dade County, Florida. The consent of the City Commission shall not be unreasonably withheld, provided that the prospective transferee is capable of performing all obligations of this Franchise, and that such transferee agrees with the City, in 7 writing, to comply with all provisions of this Franchise. SECTION 16. REVOCATION OF FRANCHISE. (a) Failure on the part of the Grantee to comply in any material respect with any of the provisions of this Franchise, shall be grounds for a termination of this Franchise, but no such termination 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 material respect with any of the provisions of this Franchise, and the Grantee shall have three (3) months after a final determination of the question, to make good the default before a termination shall result with the right of City at its discretion to grant such additional time to Grantee for compliance as necessities in the case require. In the event such a protest is filed, Grantee shall continue to pay City the Franchise Fee required by this Franchise. The foregoing requirements shall apply even in the event that the Franchise Fee is the subject matter of the protest. (b) Notwithstanding the foregoing, and at the sole option of the City, the adjudication of Grantee as a bankrupt shall be cause for immediate revocation of this Franchise without the benefit of public hearing. SECTION 17 . NOTICES. Any notice or demand, which under the terms of this Franchise or by any statute or ordinance, is to be given or made by City or Grantee, shall be in writing and sent by registered United States mail, return receipt requested, to the other party at the address set forth below, or to such other address as City or Grantee may from time to time designate by written notice to the other. For City: City Manager City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 For Grantee: Peoples Gas System, Inc. Vice President, Accounting P.O. Box 2562 Tampa, Florida 33601 SECTION 18. ACCEPTANCE. The Franchise granted hereunder shall be accepted by Grantee by written acknowledgment signed by the Senior Vice President of South Florida Divisions of Grantee and filed with the City Clerk on or before the date of the second reading of this ordinance. SECTION 19 . SEVERABILITY. That if any clause, section or other part of this Ordinance shall be held invalid or unconstitutional by any court of competent 8 jurisdiction, the remainder of this Ordinance shall not be affected thereby, but shall remain in full force and effect. SECTION 20 . CONFLICTING PROVISIONS. That all ordinances or parts of ordinances in conflict herewith, be and the same are hereby repealed. SECTION 21. EFFECTIVE DATE. This Ordinance shall take effect ten (10) days after adoption in accordance with law, on February 17 , 1990. PASSED and ADOPTED this 7th day of February , 1990. VICE-MAYOR ATTEST: CITY CLERK 1st Reading 1/17/90 2nd reading 2/7/90 FORM APPROVED LEGAL DEPT. BY: DATE: a .5/ /4) EC: IB: lcd 9 CITY OF MIAMI BEACH CITY HALL 1700 CONVENTION CENTER DRIVE MIAMI BEACH FLORIDA 33139 OFFICE OF THE CITY MANAGER TELEPHONE: 673-7010 December 21, 1989 Mr. Francis J. Sivard Mr. Charles Montague Vice President-Accounting Senior Vice President Peoples Gas System, Inc. South Florida Divisions P.O. Box 2562 Peoples Gas Systems, Inc. Tampa, Florida 33601-2562 555 N.E. 124th Street CERTIFIED MAIL North Miami, Florida 33161 P-625 623 280 CERTIFIED MAIL P-625 623 281 RE: GAS FRANCHISE AGREEMENT Dear Messrs. Sivard and Montague: Enclosed please find the final 'Gas Franchise Agreement Ordinance which has been form approved by our Legal Department. I will be taking the Ordinance before the City's Finance Committee. You will be advised when the Ordinance will be put on the Commission Meeting Agenda. Your signatures below will indicate your concurrence with the Ordinance. Please return the original signed letter to my office as soon as possible. If I may be of any assistance to you in this matter, please do not hesitate to contact me. Sincerely, AP_-70 ED BY: 41114 4 F ancis Wivard - Eddie Cox Vice President-Accounting Executive Assistant to the City Manager DATED: /- - Y( EC: lcd APPROVED BY: Enclosure i777" � Charles Montague' Senior Vi P esident DATED: % t. --AeitZ5-xe-eee/--)v6.-- i CITY OF BEACH CITY HALL 1700 CONVENTION CENTER DRIVE MIAMI BEACH FLORIDA 33139 J OFFICE OF THE CITY MANAGER TELEPHONE: 673-7010 November 30, 1989 Mr. Francis J. Sivard Mr. Charles Montague Vice President-Accounting Senior Vice President Peoples Gas System, Inc. South Florida Divisions P.O. Box 2562 Peoples Gas System, Inc. Tampa, Florida 33601-2562 555 N.E. 124 Street North Miami, Florida 33161 Re: Gas Franchise Agreement Dear Messrs. Sivard and Montague: As you are aware, the current Franchise Agreement between the City of Miami Beach and Peoples Gas System, Inc. is due to expire on December 1, 1989 . Further, representatives of both the City and your Company have been negotiating a new agreement which is now in the final stages. Therefore, in order to ensure uninterrupted service to your customers, I am granting a month-to-month extension of a gas franchise to Peoples Gas System, Inc. It must be noted, however, that the terms and conditions of the new agreement would be retroactive to December 1, 1.989 . If you should have any questions regarding this letter, please cost. L is at (305) 673-7010 . Sincerely, 111700, Rob W. Parkins City Manager PFL:me cc: Ed Cox Executive Assistant to the City Manager Effective untilase/fis signed. APPROVED BY: ,, /'/( - '4r. Vice President For: Peoples as System, Inc. et:4, 661 /(4u% rear% 8-es FLORIDA 3 3 1 3 9 ATl TION ,1 (� i1NCOR�DD*% V.4 CA TIONL,4ND U. S. A. OFFICE OF THE CITY MANAGER CITY HALL ROB W.PARKINS 1700 CONVENTION CENTER DRIVE CITY MANAGER TELEPHONE: 673-7010 COMMISSION MEMORANDUM NO. jJ 1 "9C DATE: January 17 , 1990 TO: Mayor Alex Dao. • and 111 Members of e City Corn •Iss •,y- FROM: Rob W. Par. 'ns ''//� City Manager ,.• SUBJECT: ADOPTION OF PEOPLES GAS SYSTEM FRANCHISE ORDINANCE Upon the expiration of the Peoples Gas System Franchise Ordinance, a new Ordinance has been developed that provides for a twenty (20) year Agreement between the City of Miami Beach and the Grantee. The proposed Ordinance provides for an increase in revenues to the City of Miami Beach of approximately nine (9) percent over the old Franchise Agreement. The Ordinance provides additional liability protection for the City as well as a stronger indemnification clause. The Ordinance also provides for the safety, and the environmental protection for the City of Miami Beach and its citizens. Attached is a letter wherein representatives of Peoples Gas System, Inc. concur with the contents of this Ordinance. ADMINISTRATION RECOMMENDATION It is the recommendation of the Administration, that the City Commission approve the adoption of this Ordinance which provides for a Peoples Gas System Franchise for a twenty (20) year period and also provides for additional revenues to the City of approximately nine (9) percent annually. 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