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96-19 ORDINANCE NO. 96-19 AN ORDINANCE OF THE CITY OF AVENTURA, FLORIDA; GRANTING TO PEOPLES GAS SYSTEM, INC. A NON-EXCLUSIVE FRANCHISE IN THE CITY OF AVENTURA; AUTHORIZING PEOPLES GAS SYSTEM, INC. 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 it 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 regulatory authority over the prevision of gas, to the extent allowed by law, because of the overriding public health, safety and welfare considerations associated with the provision of this service; and WHEREAS, the City of Aventura finds it in the public interest to retain control over ttie 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 it in the public interest to attract high-quality providers of gas and that this can be accomplished by protecting capital investments of gas utilities; and WHEREAS, the City of Aventura finds it in the public interest to ensure that high quality gas service is maintained through a responsive complaint handling procedure; and WHEREAS, the City of Aventura finds that the provision of gas typically results in a natural monopoly which, if not regulated, would have the power to operate without adequate regard for the public interest; 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; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF AVENTURA, FLORIDA: Section 1. Definitions. For the purpose of this Ordinance, the following terms and words shall have the meaning given herein. A. "City" shall mean the City of Aventura, its successors and assigns. B. "Company" shall mean Peoples Gas System, Inc., its successors and assigns. C. "Consumer" shall mean any person, firm or public or private corporation served by the Company. Section 2. 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 3. Terms and Limits of Franchise. This franchise is granted for a period of fifteen (15) years 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 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 4. 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 receipts of the Company from the sale 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 municipality or government entity that requires them to pay a franchise fee in excess of six percent (6%), 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 four installments. The first, second and third installments of the annual payment shall be based upon the gross receipts for the first, second and third quarters, respectively, of the fiscal year and shall be made no later than sixty (60) days following the end of these periods. The fourth installment of the annual payment shall be made no later than sixty (60) days following the end of such fiscal year, and shall be based upon such gross receipts for the fiscal year but shall be adjusted to reflect payment of the first three installments. For purposes of this payment, such fiscal year shall end on September 30. The first such payment shall be based upon receipts for the quarter of October, November and December 1996, and shall be made on or before January 31, 1997. Payments shall be payable to the City of Aventura, Attention: Finance Support Services Department, during regular business hours of the City. Section 5. Transferability. The Company shall not sell or transfer any portion of its plant or system to another, nor transfer any rights under this franchise to another without City's prior written approval. The City Council will not unreasonably withhold its consent to the transfer of this franchise. Notwithstanding the foregoing, Company may 3 transfer or assign any portion of its plant or 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 tl~ereof. Section 6. 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, 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 (6) months after the final determination of the question 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 7. 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 8. 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 equipment and vehicles subject to the terms and conditions of this franchise. The Company hereby agrees to indemnify the City 4 and to hold it 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 facilities, vehicles, or equipment subject to this franchise. Section 9. 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 corporate offices of the Company. Section 10. Underground Installation. The Company shall install underground extensions of all distribution lines that the Company has determined are necessary or desirable. Section 11. Successors and Assigns. Whenever in this Ordinance either the C'ity 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. 5 Section 12. 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 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 Florida Public Service Commission (FPSC). In the event that the FPSC, or other State regulatory, 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. Section 13. 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 easements 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 6 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 gas 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 14. Proper Operation. The 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 in reasonably good condition and repair. Section 15. Excavation Maintenance and Restoration. Construction plans shall be submitted and an Engineering Construction permit shall be obtained from the Community Development Department Director or his designated representative 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. The work under this franchise shall be done subject to the supervision of the City. The Company shall replace or properly relay 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, 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 7 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 twenty (20) 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 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 caused by or arising out of such change, alteration or relocation of the Company's property. Section 16. 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 17. 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 8 appurtenances. Such meters shall remain the property of the Company. Section 18, Complaints. All complaints shall be resolved by Company in accordance with the Florida Public Service Commission rules and regulations. Section 19, Surrender of Rights. As a further consideration for the granting of the rights, privileges and franchises granted hereby, the Company surrenders all rights, privileges and franchises heretofore granted by Dade County in the franchise area for any of the purposes stated in this Ordinance and now enjoyed by the Company in the franchise area; provided, however, that such surrender shall not be effective unless and until this Ordinance shall be finally adopted and in effect and the rights, privileges and franchises granted hereby shall be validly in force and effect. Section 20. City's Right to Regulate Use of Streets not AbroRated 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 21. Written Acceptance by Company. The Company, its successors or assigns, shall, within thirty (30) days after this Ordinance takes effect, file a written acceptance of the Ordinance with the City. Section 22. Repealer Provisions. All ordinances or parts of ordinances insofar as they are inconsistent or in conflict with the previsions of this Ordinance are hereby repealed. Section 23. That this Ordinance shall take effect immediately upon adoption. The foregoing Ordinance was offered by Vice Mayor Rogers-Libert, who moved its adoption on first reading. This motion was seconded by Councilmember Perlow, and upon being put to a vote, the vote was as follows: 9 Councilmember Arthur Berger yes Councilmember Jay R. Beskin yes Councilmember Ken Cohen yes Councilmember Harry Holzberg yes Councilmember Jeffrey Perlow yes Vice Mayor Patricia Rogers-Libert yes Mayor Arthur I. Snyder yes The foregoing Ordinance was offered by Councilmember Cohen, who moved its adoption on second reading. This motion was seconded by Councilmember Holzberg, and upon being put to a vote, the vote was as follows: Councilmember Arthur Berger yes Councilmember Jay R. Beskin yes Councilmember Ken Cohen yes Councilmember Harry Holzberg yes Councilmember Jeffrey Perlow yes Vice Mayor Patricia Rogers-Libert yes Mayor Arthur I. Snyder yes PASSED AND ADOPTED on first reading this 17th day of September, 1996. PASSED AND ADOPTED on second readin, g~d~s 2~nd day of~)ctober, 1996. ARTHUR I. SN~,'MAYOR ATTEST: ., TERESA M. SMITH, CMC/ CITY CLERK ~CITY ATTORNEY EMS/ne 10