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2019-009-411 Peoples Gas System - Franchise Agreement ORDINANCE NO. 2019-009-411 AN ORDINANCE 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 MIAMI GARDENS,FLORIDA, FOR A PERIOD OF THIRTY(30)YEARS TO CONSTRUCT, OPERATE AND MAINTAIN A GAS SYSTEM DISTRIBUTION SYSTEM IN THE CITY OF MIAMI GARDENS, 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.. WHEREAS, Peoples Gas System and the City of Miami Gardens desire to enter into a franchise agreement for a period of thirty (30) years commencing from the date provided herein; and WHEREAS, the City Council 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 ENACTED BY THE CITY COUNCIL OF THE CITY OF MIAMI GARDENS, FLORIDA, THAT: SECTION 1: DEFINITIONS For the purposes of this Ordinance, the following terms shall have the meaning given herein. A. "Customer" shall mean any Person served by the Company within the corporate limits of the City. B. "City" shall mean the City of Miami Gardens,Miami-Dade County,Florida, its successor and assigns. C. "Company" shall mean Peoples Gas System, a division of Tampa Electric Company,a Florida corporation, its successors and assigns. D. "Distribution System" shall mean any and all transmission pipe lines,main pipe lines and service lines, together with all tubes, traps, vents, vaults, manholes, meters, gauges, regulators, valves, conduits, attachments, 2 Ordinance No.2019-009-411 structures and other appurtenances, as are used or useful in the sale, distribution, transportation or delivery of Natural Gas and as are situated within the corporate limits of the City. E. "Effective Date" shall mean the date this Franchise becomes Effective as described in Section 23 below. F. "Franchise" or "Franchise Agreement" shall mean this agreement, as passed, adopted by the City, and accepted by the Company, as provided in Section 19 below. G. "FPSC" shall mean the Florida Public Service Commission or any successor agency. H. "Gross Revenues"shall mean all revenues(as defined by the Florida Public Service Commission) received by the Company from any Customer from the sale of Gas. I. "Person" shall mean any individual, firm, partnership, estate, corporation, company or other entity, including, but not limited to, any government entity. J. "Natural Gas" of"Gas" shall mean natural gas and/or manufactured gas and/or a mixture of gases, which is distributed in pipes and measured by meter on the Customer's premise. It shall not mean propane gas or liquefied petroleum gas (commonly referred to as"bottled gas"). K. "Right-of-way" means any street, road, lane, highway, avenue, boulevard, alley,waterway,bridge,easement,public place or other right-of-way that is owned by the City. SECTION 2: GRANT The City hereby grants to the Company the non-exclusive right,privilege,and franchise to lay, erect, construct, operate and maintain in, on or under any and all Rights-of-way, as they now exist or may be hereafter constructed,opened,laid out or extended within the present incorporated limits of the City, or in such territory as may be hereafter added or annexed to, or consolidated with,the City, a Distribution System subject to the terms and conditions herein contained. SECTION 3: TERM Except as provided in Section 17, the Franchise hereby granted shall be for a period of thirty(30)years from the effective date of this ordinance. SECTION 4: COMPANY'S ACKNOWLEDGMENT OF CITY'S POLICE POWERS: COMPLIANCE WITH LAWS AND REGULATIONS. A. Company shall comply with the terms of the charter of the City of Miami Gardens, and all applicable codes, rules, regulations and laws, as they presently exist, and as they may be subsequently amended or created; provided, that, no such code, rule, regulation or law passed by the City of Miami Gardens shall change the Company's rights or obligations as set forth herein. 3 Ordinance No.2019-009-411 B. 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;provided that,no such code,rule,regulation or law passed by the City of Miami Gardens shall change the Company's rights or obligations as set forth herein. C. This franchise does not obviate or modify the provisions of section 337.401(2), Florida Statutes that requires Company 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 Distribution System. All said permits shall require the Company 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 applicable for the duration of the term of this franchise. SECTION 5: ASSIGNMENT A. The Franchise hereby granted shall not be leased, assigned or otherwise alienated or disposed of except with the prior express written consent of the City,which shall not be unreasonably withheld or unduly delayed. No assignment shall be allowed without the assignee assuming the terms of the Franchise Agreement with the City. B. Notwithstanding the foregoing,the Company may,without the consent of the City, lease, assign or otherwise alienate and transfer this Franchise in connection with the lease or sale of the Distribution System or upon its merger or consolidation with,or transfer to,a corporation engaged in similar business(including an affiliate or subsidiary of the Company), or pledge or mortgage of such Franchise in connection with the physical property owned and used by it in the operation of the Distribution System for the purpose of securing payment of monies borrowed by the Company. SECTION 6: 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 thereof, 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 7: USE OF STREETS A. Except in an emergency, if the Company makes any excavation or disturbs the surface of any of the Rights-of-way, it shall make application for a permit to the appropriate City authority. The City shall issue, or if applicable deny, permits within (20) business days of application by the Company. In consideration of the franchise fees contemplated in this agreement, the City shall not charge the Company any fees for the issuance of such permits. B. To the extent consistent with Florida law, the Company hereby agrees to abide by all the rules and regulations and ordinances which the City has passed or might pass in the future, in the exercise of its police power, and further agrees to abide by any established policy which the City or its duly authorized representative has passed, established, or will establish, in the exercise of its police power;provided,however,that the City shall not pass any ordinance or regulation that 4 Ordinance No.2019-009411 results in a material change in the rights or obligations of the Company under the Franchise Agreement. C. Company is hereby authorized to use streets within the City to erect, install, construct, repair, replace, reconstruct and maintain Distribution System as may be necessary and appurtenant to its operations authorized under the franchise, subject to the conditions set forth below. (1) Company shall be responsible for securing any permits,licenses or agreements that may be necessary to the Company or required by any private property owners,public utilities or governmental agencies. (2) Any installation or relocation of the Distribution System shall be made in such a manner as to cause a minimum of interference with the rights and reasonable convenience of property owners, consistent with the rights of the public interest, and 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, Company shall consult with the City engineer, City traffic planner, City chief of police, and other proper City officials toward the end of the least possible traffic interference. (3) The Distribution System 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 Distribution System in a particular location of a City street, in the event the City in its sole and reasonable discretion determines that such system will interfere with the use of the City street by the City. (4) Company shall place its Distribution System underground whenever reasonably possible. (5) The Distribution System shall be constructed, installed, repaired, replaced and relocated by the Company with the approval by permit of the proper City officials; and the Company shall at its own expense replace without undue delay any sidewalks, pavement, subgrade, soil, grass or landscaping that may be displaced by the Company and restore same to as good condition as same existed prior to such construction, installation, repair or replacement of Distribution System. Upon failure of the Company to do so within ten (10) days after receipt by Company of written notice from the City engineer 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 Company, and the cost of the same including administrative and engineering costs shall be paid by Company. The proper City officials may grant Company a reasonable extension of the foregoing time for good cause shown. 5 Ordinance No.2019-009411 (6) Notwithstanding any provision herein to the contrary, in the event the City' engineer or his successor, other proper City officials or Company construes a repair or replacement to be an emergency, Company shall make such repairs and replacements as soon as practical. (7) Company shall endeavor to coordinate all construction, installation or repairs of Distribution System with all governmental entities having jurisdiction over Company,and utilities,which provide services in the vicinity of such activities of Company, in order to minimize any adverse effects, disruption or disturbance. (8) All street cuts made by Company under this franchise shall be maintained by Company in accordance with the standards determined and required by the City engineer or his successor as such standards are applied to all other franchises of City. (9) Except as otherwise required by section 337.403, Florida Statutes, whenever the City shall, determine through its City Council that the public interest requires the distribution system to be reconstructed, relocated, altered or discontinued at Company's expense, it shall be the obligation of Company within thirty(30)days after receipt of written notice of such requirement from the City engineer, or within such other longer time period which is acceptable to the City, to comply with such City determination. If the City shall require the Company to remove, relocate or disconnect any portion of its Distribution System or in any way to alter the placement or location of the Distribution System, to enable any other Person to use said Rights-of-way of the City, as part of its permitting or approval process, the City shall require the Person desiring or occasioning such removal, relocation, disconnection or alteration to reimburse the Company for any loss, cost or expense caused by or arising out of such removal, relocation, disconnection or alteration of any portion of the Distribution System. SECTION 8: 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. SECTION 9: LAYING OF PIPE 6 Ordinance No.2019-009-411 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. SECTION 10: CONSTRUCTION WORK The City reserves the right to permit electric conduits,water and gas pipes and lines,cables, sewers, and to do and permit to be done any underground work that may be deemed necessary or proper by the City in, across, along, or under any Right—of--way. Whenever, by reason of establishing a grade or by reason of changes in the grade of any Right-of-way, or by reason of the widening, grading, paving, or otherwise improving present or future Rights-of-way, or in the location or manner of construction of any water pipes, electric conduits, sewers, or other underground structure located within the Rights-of-way, it shall be deemed necessary by the City to remove, relocate or disconnect any portion of the Distribution System of the Company hereto for such public purpose, such removal,relocation or disconnection shall be made by the Company as ordered in writing by the City without claim for reimbursement. If the City shall require the Company to remove, relocate or disconnect any portion of its Distribution System or in any way to alter the placement or location of the Distribution System,to enable any other Person to use said Rights-of-way of the City, as part of its permitting or approval process, the City shall require the Person desiring or occasioning such removal, relocation, disconnection or alteration to reimburse the Company for any loss, cost or expense caused by or arising out of such removal, relocation, disconnection or alteration of any portion of the Distribution System. The Company further agrees that it will not intentionally interfere with, change, or injure any water pipes, drains, or sewers of said City unless it has received specific permission from the City or its duly authorized representative. SECTION 11: FRANCHISE FEE A. As consideration for and as a condition of the grant to Company of the non- exclusive right to occupy municipal streets and rights-of-way for the construction, operation and maintenance of Company's Distribution System, 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 equal to six percent(6%)of the Company's Gross Revenue, from the sale of Natural Gas to Customers within the corporate limits of the City. Payment of the franchise fees shall be in addition to any other tax or payment owed or paid to the City by Company. 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. B. City shall provide written notice of any payment not received pursuant to 11 A. above. In the event any monies due and owing under section 11 A. above are not paid within 10 business days of Company's receipt of such written notice,and no extension as described in section 11 D. has been granted, the City may impose and the Company agrees to pay, a late charge equal to one(1)percent per month on the unpaid balance. C. Should any of Company's payments as required under this section be delinquent for thirty(30)days,the City may proceed under section 17 herein. 7 Ordinance No.2019-009-411 D. The City finance director or his/her successor may, upon request of Company, grant a ten (10) day extension for payment of monies due and owing under section 10 A, above. The City Council may grant a reasonable extension of any of the foregoing time periods for good cause shown. E. The Company 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 Company as defined in section 1(h)of this franchise for the preceding fiscal month. Each such statement shall be signed by a director- level employee of Company or higher. Such statement shall be presented to City by Company on or before the thirtieth day of each month. F. Any statement rendered by Company to City is for accounting purposes only. SECTION 12: IDENTIFICATION OF CITY RESIDENTS No less than thirty (30) days prior to the Effective Date, the City shall deliver to the Company such information (including City limit streets and block numbers) as is needed by the Company to determine which of its customer are located within the City limits. The City shall also provide such information no less than thirty(30)days prior to the effectiveness of any change in said limits, whether by addition, annexation or consolidation, or upon the Company's request. SECTION 13: ACCOUNTS AND RECORDS A. All books and records of Company concerning Company's operations within the corporate limits of the City applicable to the franchise fee payments shall be made available for inspection and audit by the City or its designee during normal business hours of Company, for the purpose of verifying any statements, including statements of revenues furnished by the Company to City and for the purpose of examining and auditing the gross receipts of Company from which franchise fees are computed. In the event a disagreement arises between Company and City as to any amount paid or to be paid by Company, and the parties are unable to resolve the disagreement within thirty(30) days from the date City furnished Company written notice of the disagreement, then the provisions of section 17 of this franchise shall apply. B. The Company shall also 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. SECTION 14: COMPLAINTS Company bills shall include a customer service phone number for customers to use regarding the quality of service, equipment malfunctions and similar matters. Company 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. 8 Ordinance No.2019-009411 SECTION 15. INDEMNIFICATION Company shall indemnify, hold harmless and defend the City, its officers, agents and employees, against, any and all claims, suits, actions, damages, liabilities, expenditures, or causes of action of any kind in connection with bodily injury, loss of life or limb or damage to property sustained by any person, firm,corporation or other business entity resulting from the construction, operation and maintenance of a gas distribution system and/or the use of the public streets for the purposes authorized herein to the extent resulting or accruing from any negligence, act, omission or error of the Company, its agents or employees or arising from the failure of the Company, its agents or employees to comply with its obligations under this franchise or with any other ordinance or law regulating the use of the streets of the City. Company shall save the City,its officers,agents and 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 to such extent. Company 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 16: 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 hereof, insurance certificates evidencing a general liability insurance policy or policies or evidence of self-insurance within the corporate limits of the City, as they currently exist or may exist in the future. The City shall be named as an additional insured on each policy(s) of insurance. Each such policy shall be in the minimum sum of$5,000,000.00 for injury or death to any one person, and in the minimum sum of $5,000,000.00 for injury or death to all persons where there is more than one person involved in any one accident, and in the minimum sum of$5,000,000.00 for damage to property, resulting from any one accident, and each of the said minimum sums shall remain in full force and shall be undiminished during the effective period of this Ordinance. Company shall notify the clerk of the City, in writing, promptly upon any material alteration, modification, or cancellation of such policy. The coverage requirements set forth in this Section 16 may be satisfied, in whole or in part, with self-insurance. SECTION 17: TERMINATION BY CITY Violation by the Company of any of the covenants,terms,and conditions hereof,or default by the Company in observing or carrying into effect any of said covenants, terms and conditions, shall authorize and empower the City to declare a termination this Franchise Agreement;provided, however, that before such action by the City shall become operative and effective, the Company shall have been served by the City with a written notice setting forth all matters pertinent to such violation or default, and describing the action of the City with respect thereto, and the Company shall have had a period of sixty (60) days after service of such notice, or, in the event such cure reasonably requires a period of more than sixty (60) days, sixty (60) days to present a plan, reasonably satisfactory to the City, to effect such cure; and provided further that any violation or default resulting from a strike, a lockout, an act of God, or any other cause beyond the control of the Company shall not constitute grounds for termination. 1 Ordinance No.2019-009411 SECTION 18: CHANGES IN PROVISIONS HEREOF Changes in the terms and conditions hereof may be made by written agreement between the City and the Company. SECTION 19: ACCEPTANCE The franchise granted hereunder shall be accepted by grantee by written acknowledgment signed by authorized officers of grantee and filed with the City clerk on or before the date of the second reading of this ordinance. SECTION 20: 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 hereof,but shall be restricted and limited in its operation and effect to that specific portion hereof 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 results 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: GOVERNING 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 within sixty (60) days of the City's passage and adoption hereof. SECTION 24. CONFLICT: All ordinances or Code provisions in conflict herewith are hereby repealed. SECTION 25. INCLUSION IN CODE: It is the intention of the City Council of the City of Miami Gardens that the provisions of this Ordinance shall become and be made a part of the Code of Ordinances of the City of Miami Gardens and that the section of this Ordinance may be renumbered or relettered and the word "Ordinance"may be changed to"Chapter,""Section,""Article"or such other appropriate word or phrase, the use of which shall accomplish the intentions herein expressed. PASSED ON FIRST READING ON THE 10TH DAY OF JULY, 2019. PASSED AND ADOPTED on second reading this 24TH day of JULY,2019. CITY OF MIAMI GARDENS,FLORIDA By: OLIVER GILBERT, III, MAYOR ATTEST: MARI4 BATAILLE, CMC, CITY CLERK PREPARED BY: SONJA KNIGHTON DICKENS, ESQ., CITY ATTORNEY SPONSORED BY: CAMERON D. BENSON, CITY MANAGER Moved by: Vice Mayor Harris Second by: Councilwoman Odom VOTE: 7-0 Mayor Oliver Gilbert III X (Yes) _(No) Vice Mayor Rodney Harris _X_(Yes) _(No) Councilman Reggie Leon —X—(Yes) _(No) Councilwoman Lillie Odom --X—(Yes) _(No) Councilwoman Katrina Wilson X (Yes) (No) Councilman David Williams Jr. X (Yes) _(No) Councilman Erhabor Ighodaro X (Yes) _(No) Accepted this day of , 2019 PEOPLES GAS SYSTEM, A DIVISION OF TAMPA ELECTRIC COMPANY By: Title: