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
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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
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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
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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
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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.
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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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Attachment
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AGENDA
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