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Ordinance No. 2019-10 Granting NonExclusive Franchise to Peoples Gas System (A Division of Tampa Electric Company) - June 11, 2019 ORDINANCE NO. 2019-10 AN ORDINANCE OF THE CITY OF AVENTURA, FLORIDA; GRANTING TO PEOPLES GAS SYSTEM, A DIVISION OF TAMPA ELECTRIC COMPANY, A FLORIDA CORPORATION, A NONEXCLUSIVE FRANCHISE IN THE CITY OF AVENTURA; AUTHORIZING PEOPLES GAS SYSTEM TO USE THE PUBLIC RIGHTS-OF-WAY AND STREETS OF THE CITY, FOR THE PURPOSE OF CONSTRUCTING, MAINTAINING, OPERATING AND EXTENDING GAS LINES IN THE STREETS AND PUBLIC PLACES OF SAID CITY THEREON AND THEREUNDER; PROVIDING FOR A FRANCHISE FEE; PROVIDING THE TERMS AND CONDITIONS OF SUCH GRANT; PROVIDING FOR SEVERABILITY; PROVIDING FOR INCLUSION IN THE CODE; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City of Aventura finds that it continues to be in the public interest to ensure that all areas within its limits are adequately provided with high-quality and reliable gas service; and WHEREAS, the City of Aventura finds it in the public interest to retain control over the use of public rights-of-way by providers of gas to ensure against interference with the public convenience, to promote aesthetic considerations, to promote planned and efficient use of limited right-of-way space, and to protect the public investment of right-of-way property; and WHEREAS, the City of Aventura finds that the granting of nonexclusive franchises is the best means of assuring that the above-described interests of the City of Aventura are promoted; and WHEREAS, the City Commission desires to continue to grant a Franchise to Peoples Gas System, a division of Tampa Electric Company, a Florida Corporation, (the "Company") in place of the initial Franchise which was previously granted to Peoples Gas System by the City on October 2, 1996, pursuant to City Ordinance No. 96-19, as provided herein. NOW THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF AVENTURA, FLORIDA, THAT: Section1. Recitals Adopted. The above recitals are hereby adopted and are incorporated herein. Section 2. Definitions. For the purpose of this ordinance, the following terms and words shall have the meaning given herein, as follows: City of Aventura Ordinance No. 2019-10 A. "Customer" shall mean any Person served by the Company within the corporate limits of the City. B. "City" shall mean the City of Aventura, in Miami-Dade County, Florida, and City's permitted successor and assigns. C. "Company" shall mean Peoples Gas System, a division of Tampa Electric Company, a Florida corporation, and its permitted 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, 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 Sections 23 and 27 below. F. "Franchise" or "Franchise Agreement" shall mean this Agreement, as passed and adopted by the City and accepted by the Company, as provided in Section 23 below. 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, transportation, distribution or delivery 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" or "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 or controlled by the City. Page 2 of 9 City of Aventura Ordinance No. 2019-10 Section 3. Grant of Franchise. Permission is hereby granted Company to construct, erect, suspend, install, extend, renew, repair, maintain, operate and conduct within the limits of this franchise, a system for distribution of gas for all purposes whatsoever upon, along, under and over the public roads, streets, and rights-of-way of the City of Aventura. Section 4. Terms and Limits of Franchise. This franchise is granted for a period of 30 years from and after the October 1, 2011 scheduled expiration date of the initial franchise which was granted pursuant to Ordinance No. 96-19 (the "Initial Franchise"), and covers the following geographical area: The corporate limits of the City of Aventura as set forth in the Charter of the City of Aventura, as said description is amended from time to time. Company agrees that the limits of the franchise are subject to expansion or reduction by annexation and contraction of municipal boundaries and that Company has no vested right in a specific area. Section 5. Franchise Fee; Payments. In consideration of the rights, privileges and franchises herein granted, and to defray the cost of regulating the Company's activities under this franchise, the Company shall pay to the City annually a sum equal to six percent (6%) of the Gross Revenues of the Company from the sale, distribution, transportation or delivery of gas to residential, commercial and industrial customers within the corporate limits of the City. In the event the Company is granted a franchise from another Florida municipality or government entity that requires the Company to pay a franchise fee in excess of six percent, then the City shall be entitled to the higher franchise fee once it requests so in writing to the Company. Impositions by the City will not be credited to or deducted from the franchise fee. The annual payment shall be made to the City for each year that the permission granted herein is in effect and shall be made to the City in monthly installments, in lieu of the quarterly payment method which was used under the Initial Franchise. Payments shall be payable to the City of Aventura, Attention: Finance Department, during regular business hours of the City. Section 6. Transferability. The Company shall not sell or transfer any portion of its plant or Distribution System to another, nor transfer any rights under this franchise to another without City's prior written approval. The City Commission will not unreasonably withhold its consent to the transfer of this franchise. Notwithstanding the foregoing, Company may transfer or assign any portion of its plant or Distribution System or the franchise or any rights hereunder to its parent company or any other affiliate without City's prior approval. Company shall notify City of any such transfer or assignment. No such sale or transfer shall be effective until the vendee, assignee or lessee has filed with the City, Attention: City Manager, an instrument, duly executed, reciting the fact of such sale, assignment or lease, accepting the terms of the franchise, and agreeing to perform all the conditions thereof. Section 7. Forfeiture of This Franchise. Failure by the Company to comply in any substantial respect with any of the provisions, terms, or requirements of this franchise shall result in a forfeiture. Said forfeiture shall be effective upon a finding by a court of competent jurisdiction that Company has substantially breached any of the provisions, Page 3 of 9 City of Aventura Ordinance No. 2019-10 terms or requirements of this franchise. Both the City and the Company reserve the right of appeal of such court findings. If it is the non-prevailing party, the Company shall have six months after the final determination of the question of breach to make restitution or make good the default or failure before forfeiture shall result. The City, at its discretion by and through its City administration, may grant additional time to the Company for restitution and compliance as deemed appropriate by the City. Section 8. Termination of Grant by Insolvency or Bankruptcy of Company. In the event of a final adjudication of bankruptcy of the Company, the City shall have full power and authority to terminate, revoke, and cancel any and all rights granted under the provisions of this Ordinance. Section 9. Hold Harmless. The City shall in no way be liable or responsible for any accident or damage which may occur due to the construction, location, relocation, operation or maintenance by the Company of the Distribution System, facilities, equipment and vehicles subject to the terms and conditions of this franchise. The Company hereby agrees to defend, indemnify, and to hold City harmless against any and all liability, loss, cost, damage or any expense connected with the Company's exercise of the rights or privileges provided hereunder, including a reasonable attorney's fee incurred in the defense of any type of court action related thereto, which may accrue to the City by reason of the negligence, default, other misconduct, strict liability or act or omission of the Company in its construction, location, relocation, operation or maintenance of the Distribution System, facilities, vehicles, or equipment subject to this franchise. Section 10. Review of Billing Records. City may, at its option and at its expense, and upon reasonable notice to the Company, at any time, examine the records of operations, accounting files, and books and records as such records relate to the calculation of the franchise fee payments to the City, as provided herein, and to proper performance of other terms of this franchise. The examination of such books, accounts, records or other materials necessary for determination of compliance with the terms, provisions and requirements of this franchise shall be during regular hours of business of the Company and at the Florida corporate offices of the Company. Section 11. Underground Installation. The Company shall install underground extensions of all distribution lines that the Company has determined are necessary or desirable in accordance with applicable law. Section 12. Successors and Assigns. Whenever in this Ordinance either the City or the Company is named or referred to, it shall be deemed to include the respective successor, successors or assigns of either, and all rights, privileges and obligations herein conferred shall bind and inure to the benefit of such successor, successors or assigns of the City or the Company. This shall not waive any restrictions against assignments. Page 4 of 9 City of Aventura Ordinance No. 2019-10 Section 13. Rates, Rules and Regulations. A. The Company shall provide gas service within the limits of this franchise on reasonable terms and conditions at just, reasonable and nondiscriminatory rates to all who request said service during the term of this franchise and thereafter, as required by law or by the FPSC or other duly constituted public regulatory body. B. Upon the written request of the City, the Company shall file with the City a complete set of rules and regulations and a complete set of tariffs or rate schedules under which gas service is provided under this franchise. The Company is subject to the rules and regulations of the FPSC. In the event that the FPSC, or other State regulatory agency, should be deprived of the authority to make rules and regulations governing the Company, then the City shall have the right to set rules. Upon the written request of City, Company shall also furnish any revisions of rules, regulations, and rates to the City. Section 14. Right to Operate. The Company is hereby further given, granted and vested with the right, authority, easement, privilege and franchise to construct, erect, suspend, install, extend, renew, repair, maintain, operate and conduct within the limits of this franchise fittings, appliances and appurtenances necessary or desirable to the transmission, distribution or sale of natural gas for all purposes whatsoever. The franchise herein granted apply in, over, under, along, upon and across all streets, avenues, alleys, ways, bridges and public places as they now exist or as they may hereafter be laid out or extended within the limits of this franchise, including the further right, privilege and franchise to construct, erect, suspend, install, extend, renew, repair and maintain and operate fittings and all appliances and appurtenances necessary or desirable to the generation and transmission within, unto, through, over and beyond the limits of this franchise and to the furnishing, supplying and distributing to said area and the inhabitants and gas consumers both within and beyond the limits thereof, of gas for all purposes for which gas energy may be used now or hereafter, and the right to extend lines and furnish gas energy beyond the limits of said franchise. The Distribution System facilities and associated equipment and vehicles shall be located or relocated, erected or operated so as to interfere as little as possible with vehicular and pedestrian traffic over, along and across said public rights-of-way, streets, alleys, bridges, and public places and with reasonable egress and ingress to abutting and adjoining property. Section 15. Proper Operation. The Distribution System, including all fittings, appliances and appurtenances shall be constructed in accordance with good engineering practices and so as not to unreasonably interfere with the proper use and appearance of the streets, avenues, alleys, ways, bridges, and public places in the franchise area and shall be maintained by Company in good condition and repair in accordance with FPSC requirements and applicable laws. Page 5 of 9 City of Aventura Ordinance No. 2019-10 Section 16. Excavation, Maintenance and Restoration. Construction plans shall be submitted by the Company and an engineering construction permit shall be obtained from the Public Works & Transportation Department Director, prior to the Company causing any opening or alteration to be made in any of the streets, avenues, alleys, ways, bridges or public places within the franchise area for the purpose of installing, maintaining, operating or repairing any fittings, appliances and appurtenances or other components of the Distribution System. The Company's work under this franchise shall be done in accordance with applicable laws. The Company shall replace or properly re- lay and repair any sidewalk, street, lawn, landscaping or swale that may be displaced by reason of such work. Whenever the Company shall cause any opening or alteration to be made in any of the streets or public places within the franchise area for the purpose of installing, maintaining, operating or repairing any equipment or component of the Distribution System, such work shall be completed at the Company's expense within a reasonable time and the Company shall upon the completion of such work restore such portion of the streets or other public places to as good or better condition as it was before the opening or alteration was so made and will promptly remove any debris. Upon failure of the Company to perform said repair or restoration, after ten (10) days' notice provided in writing by the City to the Company, the City may repair such portions of the sidewalk, street, lawn, landscaping or swale that may have been disturbed by the Company and collect the cost so incurred from the Company. The City shall promptly provide to the Company all permits, licenses and other authorizations applied for and reasonably necessary for the purpose of installing, maintaining, operating and repairing the system and facilities. If the City shall require the Company to adapt or conform its mains, service pipe or other appurtenances, or in any way alter, relocate or change its property to enable any other private person or corporation to use said street, alleys, easements or public places, the Company shall be reimbursed by the private person or corporation desiring or occasioning such change for any loss, cost or expense directly caused by or arising out of such change, alteration or relocation of the Company's property. Section 17. Interruption of Service. In the event the supply of gas should be interrupted or fail by reason of any cause beyond the control of the Company, the Company shall, at its own expense, restore the service within a reasonable time and such interruption shall not constitute a breach of this franchise nor shall the Company be liable for any loss or damages by reason of such interruption or failure. Failure to restore service within a reasonable time shall be a material breach of this franchise. Any substantial outage caused by the gross negligence or willful act of Company shall be a material breach of this franchise. Section 18. Metering of Service. The Company shall install and maintain meters for measuring gas use, and shall have free access to the premises of the consumer, from time to time, for the purpose of reading, repairing, testing and maintaining the meters and appurtenances. Such meters shall remain the property of the Company. Page 6 of 9 City of Aventura Ordinance No. 2019-10 Section 19. Complaints. All complaints shall be resolved by Company in accordance with the FPSC rules and regulations. Section 20. [Reserved.' Section 21. City's Right to Regulate Use of Streets Not Abrogated. 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 in accordance with City's police powers or property rights. Section 22. City's 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 23. Written Acceptance by Company. The Company, its successors or assigns, shall, within 30 days after this Ordinance is adopted, file a written acceptance of the Ordinance with the City Clerk. Section 24. Repeal. All ordinances or parts of ordinances insofar as they are in conflict with the provisions of this Ordinance are hereby repealed to the extent of such conflict. Once effective, this Ordinance shall supersede Ordinance No. 96-19 on the same subject. Section 25. Severability. The provisions of this Ordinance are declared to be severable and if any section, sentence, clause or phrase of this Ordinance shall for any reason be held to be invalid or unconstitutional, such decision shall not affect the validity of the remaining sections, sentences, clauses, and phrases of this Ordinance but they shall remain in effect, it being the legislative intent that this Ordinance shall stand notwithstanding the invalidity of any part. Section 26. Inclusion in Code. This Ordinance shall be codified as part of the Appendix of the City Code. Section 27. Effective Date. Subject to satisfaction of Section 23 above, this Ordinance shall take effect immediately upon adoption on second reading and shall be effective retroactively from and after the October 1, 2011 scheduled expiration date of the Initial Franchise which was previously granted pursuant to Ordinance No. 96-19. Page 7 of 9 City of Aventura Ordinance No. 2019-10 The foregoing Ordinance was offered by Commissioner Narotsky, who moved its adoption on first reading. This motion was seconded by Commissioner Mezrahi and upon being put to a vote, the vote was as follows: Commissioner Dr. Linda Marks Yes Commissioner Gladys Mezrahi Yes Commissioner Marc Narotsky Yes Commissioner Robert Shelley Absent Commissioner Howard Weinberg Yes Vice Mayor Denise Landman Yes Mayor Enid Weisman Yes The foregoing Ordinance was offered by Commissioner Weinberg, who moved its adoption on second reading. This motion was seconded by Vice Mayor Landman and upon being put to a vote, the vote was as follows: Commissioner Dr. Linda Marks Yes Commissioner Gladys Mezrahi Yes Commissioner Marc Narotsky Yes Commissioner Robert Shelley Yes Commissioner Howard Weinberg Yes Vice Mayor Denise Landman Yes Mayor Enid Weisman Yes PASSED on first reading this 7th day of May, 2019. PASSED AND ADOPTED on second reading on this 11th day of June, 2019. Page 8 of 9 City of Aventura Ordinance No. 2019-10 NID WEISMAN, MAYOR Liv Ay/ 1 . 4 I I. `rr a6 CSI ATTEST: ELLISA L. HORVAT C CITY CLERK APPROVED AS TO LEGAL SUFFICIENCY: kYin CITY ATTORNEY Page 9 of 9