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HomeMy WebLinkAboutOrdinance 98-23 ORDINANCE NO. 98- 23 AN ORDINANCE OF THE CITY OF SUNNY ISLES BEACH, FLORIDA, GRANTING TO PEOPLES GAS SYSTEM, A DIVISION OF TAMPA ELECTRIC COMPANY, A FLORIDA CORPORATION, ITS SUCCESSORS AND ASSIGNS, A NON-EXCLUSIVE FRANCHISE FOR A PERIOD OF IfUT~EN (15) YEARS TO CONSTRUCT, OPERATE AND MAINTAIN GAS SYSTEM FACILITIES IN THE CITY OF SUNNY ISLES 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 ACCEPI'ANCE OF THE FRANCHISE; AND PROVIDING FOR AN EFFECTIVE DATE. BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF SUNNY ISLES BEACH, FLORIDA, AS FOLLOWS: 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 Sunny Isles Beach, Florida does hereby find, determine and declare as follows: (a) It is the municipal responsibility of the City of Sunny Isles Beach, incorporated on June 16, 1997, and further, it is in the public interest to ensure that service areas within its corporate limits are adequately provided with high quality gas servIce. (b) After due notice to the public, the City Commission of the City of Sunny Isles 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 Sunny Isles Beach to Peoples Gas System, a division of Tampa Electric Company, a Florida corporation. (c) After the close of said public hearing and due deliberation, the City Commission of the City of Sunny Isles Beach voted to award a franchise to Peoples Gas System, a division of Tampa Electric Company, a Florida corporation, in the public interest. Teco Peoples' Gas (F) Section 3. Grant of non-exclusive franchise. Peoples Gas System, a division of Tampa Electric Company, 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, alleys, avenues, easements, and other public ways, places and grounds of the City of Sunny Isles Beach, Florida, upon the terms and conditions set forth below (hereafter referred to as the "Franchise"). Section 4. Definitions. For the purposes of this ordinance the following terms, phrases, words, abbreviations and their derivations shall have the meanings given herein. (a) (b) (c) (d) (e) Teco Peoples' Gas (F) City Commission shall mean the governing body of the City or any successor to the legislative powers of the present governing body. City shall mean the City of Sunny Isles Beach, Florida. City Manager is the chief administrative officer of the City. Grantee shall mean Peoples Gas System, a division of Tampa Electric Company, a corporation organized pursuant to the laws of the State of Florida, its successors or aSSIgns. 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 receipts shall mean the total of all revenues (as defined by the Florida Public Service Commission) from the sale of gas provided within the corporate limits of the City by Grantee. (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, for the purpose of supplying gas, located or to be located in, under and over the city of the City of Sunny Isles Beach, Florida. (h) Gas shall mean natural, manufactured and/or other gas. -2- Section 5. Franchise term. The Franchise granted pursuant hereto shall commence on the effecti ve date of this ordinance and shall terminate fifteen (15) years thereafter. Section 6. (a) (b) (c) Section 7. Grantee's acknowledgment of City's police powers: compliance with laws and regulations. Grantee shall comply with all applicable codes, rules, regulations and laws, including the Charter of the City of Sunny Isles Beach, as they presently exist, and, as they may be subsequently amended or created. Nothing in this ordinance shall be construed as a surrender by the City of its right or power to pass ordinances regulating the use of its streets. This Franchise does not obviate or modify the provisions of section 337.401(2), Florida Statutes (1995) 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. The provisions of that section of state law are incorporated in this Franchise by this reference and such provisions shall be applicable for the duration of the term of this Franchise. 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 of money which, when added to the amount of all ad valorem and other taxes, and all permit fees, levied or assessed by or on behalf of the City upon the Grantee, its properties, or its operations within the City limits, is equal to six percent (6%) of the gross receipts of Grantee, as defined in section 4(f) of this Franchise Ordinance, received by Grantee in each month. Such fee shall be based upon a statement as described in subsection (e) 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 owned 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, and no extension as described in section 7(d) has been granted, the City may impose and the Grantee agrees to pay, a late charge equal to one point five percent (1.5%) per month Teco Peoples' Gas (F) -3- on the unpaid balance. Should a dispute arise regarding the monies owed under section 7 (a), no late charge will apply to the amount in dispute unless ultimately resolved against the Grantee. (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 City's finance director or his/her successor may, upon request of Grantee, grant a reasonable extension for payment of monies due and owing under section (a), above for good cause shown. (e) 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 receipts 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 City by Grantee on or before the thirtieth day of each month. (f) In the event Grantee fails to pay franchise fees under this Ordinance or any other amount due the City under this Ordinance, Grantee agrees to pay all costs of collection and attorneys' fees incurred by the city should the city prevail. This provision shall apply to all trial and appellate proceedings. Grantee waives all rights to reciprocal attorney fees under the law. (g) As a further consideration of this franchise, the City agrees not to engage in the business of distributing and/or selling natural, manufactured or other gas during the life of this franchise or any extensions thereof in competition with the Grantee, its successors and assigns. (h) If, during the term of this Franchise, 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 places of the City, for the purpose of supplying or delivering natural, manufactured or other gas to consumers located within the corporate limits of the City or receiving such gas from a person other than Grantee 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 and/or base to which such rate is applied with respect to the same class of customers shall be reduced under this agreement so that the franchise compensation paid hereunder 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-them 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, Grantee's obligation to pay a franchise fee with respect to revenues derived from the provision of service to the involved class of customers under this agreement thereafter shall be extinguished. Teco Peoples' Gas (F) -4- Section 8 Indemnification. (a) The parties hereto specifically agree and understand that die 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 accordance with Section 725.06, Florida Statutes (1995). Moreover, nothing in this Ordinance shall be construed to affect the City's rights under Section 768.28 F.S. (b) For and in consideration of the sum of twenty-five dollars ($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, including legal fees through the appellate level, or causes of action arising directly from Grantees or its agents, officers, or employees action or inaction under this Franchise including, but limited to, 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 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. (c) Section 8 (b) notwithstanding, neither the Grantee nor any of its employees, agents, contractors, licensees, or sublessees shall be liable under this section 8 for any and all claims, suits, actions, damages, liability, expenditures, including legal fees or causes of action arising out on injury, loss of life, or damage to persons or property directly caused by or resulting from the negligence, act, omission or error of the City, its officers, agents, or employees. Section 9. Insurance. (a) At all times during the term of the Franchise, Grantee shall maintain and pay all premiums for a general comprehensive public liability insurance, with a combined single limit coverage of five million dollars ($5,000,000.00) per occurrence. (b) The insurance policy maintained by the Grantee in compliance with this section shall be issued by a company or companies with a financial rating in Best's Insurance Guide Teeo Peoples' Gas (F) -5- of B+ Class VI or better and a current certificate or certificates of insurance, along with written evidence of payment of all required premiums, shall be filed and maintained with the City during the term of the Franchise. Said policy or policies shall name the City as an additional insured and shall contain a provision that a written notice of cancellation or reduction in coverage of said policy shall be delivered to the City thirty (30) days in advance of the effective date thereof. It is understood and agreed that the continuance of operations by the Grantee without 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 to the Grantee. (c) The insurance requirements of the Grantee hereunder shall not be affected by any insurance which the City may carry in its own name. Section 10. Books and records of Grantee. All books and records of 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 City and for the purpose of examining and auditing the gross receipts of Grantee from which Franchise fees are computed. Further, the City or its representative shall have the right to utilize through Grantee whatever means or mechanisms used by Grantee to record, store and retrieve the data necessary to make such verification of Franchise fees. City shall have the right to compute any and all amounts paid under this Franchise. Section 11. Uses permitted to Grantee. Grantee is hereby granted the non-exclusive right, privilege and franchise 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 its operations authorized under the Franchise, subject to the conditions set forth below. (a) Grantee shall be responsible for securing any permits, licenses 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, and so as to interfere as little as reasonably possible with traffic over the streets, avenues, alleys, waterways, bridges and public places and ways 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 Building Official, City Chief of Police, and other proper City officials to achieve the least possible traffic interference. Teco Peoples' Gas (F) -6- (c) Grantee's 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. (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 Building Official, 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 administrative and engineering costs shall be paid by 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 Building Official 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 Building Official as such standards are applied to all other Franchises of City. Section 12. Complaints. Grantee shall maintain a means 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. Teeo Peoples' Gas (F) -7- Section 13. Restriction against assignment. The Grantee shall not lease, assign or otherwise alienate this Franchise or any renewal of this Franchise Ordinance, except with the consent of the City Commission expressed by ordinance. 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 writing, to comply with all provisions of this Franchise. Section 14. 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 Ordinance, shall be grounds for a termination and forfeiture 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 the final determination of the question, to make good the default before a termination shall result with the right in 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 to City the Franchise fee required by this Franchise. The foregoing requirement 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 bankrupt and in default on the payment of the Franchise fee shall be cause for immediate revocation of this Franchise without the benefit of public hearing. Section 15. 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, sent 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: J ames DiPietro, City Manager City of Sunny Isles Beach 17070 Collins Avenue, Suite 250 Sunny Isles Beach, FL 33160 Teeo Peoples' Gas (F) -8- With a copy to: Lynn M. Dannheisser, City Attorney 17070 Collins A venue, Suite 250 Sunny Isles Beach, FL 33160 Telephone (305)354-2171 For Grantee: Steve Jarboe, Regional Manager - Utility Peoples Gas System 16101 W. Dixie Highway North Miami Beach, FL 33152 Telephone (305) 940-0139 With a copy to: Francis J. Sivard, Vice President Accounting Peoples Gas System P.O. Box 2562 Tampa, FL 33601-2562 Telephone: 813/228-4592 Section 16. Acceptance. The Grantee shall, provided the Ordinance is adopted in substantially the same form on second reading as was presented on first reading, within 10 days after passage of this Ordinance, file with the City Clerk, its acceptance of same in writing, signed by the proper officers and attested by its corporate seal. Section 17. Conflicting Provisions. That all ordinances or parts of ordinances in conflict herewith, be and the same are hereby repealed. Section 18. Effective Date. That this Ordinance shall be in full force and effect within ten (10) days after passage. PASSED AND ADOPTED on First Reading the 26th day of February, 1998. PASSED AND ADOPTED on Second Reading this ~ day of Teco Peoples' Gas (F) -9- ATTEST: ~~r-vA ~~~;U- Richard Brown-Morilla City Clerk APPROVED AS TO FORM AND LEGAL SUFFICIENCY: ~~ Lynn M. Dannheisser City Attorney Motion on second reading by: ~"^,,,^i(,i ~ ~SiAS Second on second reading by: J ,(.4.. ~ T ~~ VOTE AS FOLLOWS: Mayor David Samson Vice Mayor Turetsky Commissioner Iglesias Commissioner Kauffman Commissioner Morrow ~es (~es (~es ~}s (U5'es ()no ()no ()no ()no ()no ,... ....~f..., ,,- ./ '- ,( \ ,\ .-..- . l "'... ....a... ~ ."" I "-- \.- o ~-t \ ({,-,--..- : : , "'.~ , ." ...... .......... It Teco Peoples' Gas (F) . ~ .i,^- -10- "- ....... "',,/If .' ii' . .