HomeMy WebLinkAboutCity of Tamarac Ordinance O-2023-006Temp. Ord. #2519
April 12, 2023
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CITY OF TAMARAC, FLORIDA
ORDINANCE NO. 0-2023- O�
AN ORDINANCE OF THE CITY OF TAMARAC,
FLORIDA; GRANTING TO PEOPLES GAS
SYSTEM, INC., A NOW EXCLUSIVE
NATURAL GAS FRANCHISE AGREEMENT
TO USE THE PUBLIC RIGHTS OF WAY OF
THE CITY OF TAMARAC, FLORIDA, AND
PRESCRIBING THE TERMS AND
CONDITIONS UNDER WHICH SAID
FRANCHISE MAY BE EXERCISED; MAKING
FINDINGS; PROVIDING FOR CONFLICTS, -
PROVIDING FOR SCRIVENER ERRORS;
PROVIDING FOR SEVERABILITY; AND
PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, Florida Statutes provide that municipalities shall have the
governmental, corporate, and proprietary powers to enable them to conduct municipal
government, perform municipal functions, and render municipal service, and exercise any
power for municipal purpose, except when expressly prohibited by law; and
WHEREAS, Section 7.19 of the City of Tamarac Charter grants the City
Commission the authority to grant a non-exclusive franchise to any individual, company,
firm, or corporation to exercise public functions in the City of Tamarac ("City"); and
WHEREAS, the City finds it in the public jnterest 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
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April 12, 2023
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of limited right-of-way space, and to protect the public investment in right-of-way property
and public utility easements; and
WHEREAS, there is currently in effect a franchise agreement between the City
and Peoples Gas System, Inc., a Florida Corporation ("Company"), granting the
Company, its successors, and assigns a natural gas distribution non-exclusive franchise;
and
WHEREAS, the Company and the City desire to enter into a new franchise
agreement for a period of ten (10) years commencing from the date provided herein, with
two (2) automatic five (5) year period extensions unless written notice of non -renewal is
given pursuant to the terms of this Agreement; and
WHEREAS, the City Commission 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 ORDAINED BY THE CITY COMMISSION OF THE
CITY OF TAMARAC, FLORIDA, AS FOLLOWS. -
Section 1: Recitals The foregoing recitals are true and correct and hereby
adopted as the legislative and administrative findings of the City Commission.
Section 2: 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
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corporate limits of the City.
B. "City" shall mean the City of Tamarac, Broward County, Florida, its
successor, and assigns.
C. "Company" shall mean Peoples Gas System, Inc., a Florida corporation, its
successors, and assigns.
D. "Distribution System" shall mean all transmission pipelines, main
pipelines, 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 Section 22 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 22 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
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the sale of Gas.
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I. "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").
J. "Person" shall mean any individual, firm, partnership, estate, corporation,
company, or other entity, including, but not limited to, any government
entity.
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.
Ccrrtinn 1- 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 4: Term
The Franchise shall be for an initial period of ten (10) years from the effective date
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of this Ordinance, followed by two (2) consecutive, automatic extension periods of five (5)
year terms, unless one of the parties provides written notice to the other not less than 180
days' prior to the expiration of the then current term that it does not want the Franchise to
automatically renew. If either party elects not to renew the Franchise, then the Franchise
shall expire upon the conclusion of the then current term.
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
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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
The Distribution System shall be erected, placed, or laid in such manner as will,
consistent with necessity, least interfere with other public uses of the Rights -of -Way, and
said Rights -of -Way shall not be unnecessarily obstructed, and before, except in an
emergency situation, 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
and pay any associated application fee charged by the City. The City shall issue, or if
applicable deny, permits within thirty (30) business days of application by the Company.
The Company shall place such Rights -of -Way in as good a condition as before such
excavation or disturbance was made; provided, however, that should the Company fail,
within ten (10) days of its receipt of written notice from the City, to restore such Rights -of -
Way, then the City may undertake such restoration (other than any restoration work on
the Distribution System) and charge the actual cost of such restoration to the Company
plus a ten percent (10%) addition to defray administrative and engineering costs.
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
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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 results in a material change in the
rights or obligations of the Company under the Franchise Agreement. 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 8: Laying of Pipe
Z.
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 9: Construction Work
The City reserves the right to permit to be laid 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
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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 10- Franchise Fee
Subject to Section 11 below, 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, less any adjustments for uncollectable accounts, from
the sale and transportation of Natural Gas to Customers within the corporate limits of the
City. The franchise fee payment shall be deemed paid on time if post -marked within thirty
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(30) days of the close of the preceding billing month. jrl
If Company, or any company which is a subsidiary, affiliate, or other related entity
to Company that is in the business of distributing and selling Natural Gas, pays a franchise
fee rate to any county or municipality located in Palm Beach, Broward or Miami -Dade
County as a condition, or in consideration for, the right to transact a local utility business
in that county or municipality that is greater than the franchise fee rate set forth in Section
11 of this Ordinance (i.e., 6%), Company shall notify the City in writing of the details of
the franchise fee rate greater than six percent (6%) within 60 days of the effective date of
the franchise fee rate, at which time the Franchise granted in accordance with this
Ordinance shall be automatically amended to include the requirement that Company
make franchise fee payments to City equal to the franchise fee rate that is greater than
the six percent (6%) franchise fee rate provided for herein, unless grantee, within 30 days
after such notice, notifies the City in writing that it will not make the payments. In such
case any Franchise granted by this Ordinance shall be automatically revoked.
It is the intent and agreement of City and Company that Company shall not be
required to pay City a franchise fee rate hereunder of a percentage greater than that paid
to City by any other gas provider utilizing City's rights -of -way on such gas provider's
revenues attributable to services that are the same or substantially the same as those
performed by Company. If City imposes a lesser franchise fee rate, or no franchise fee
rate, or is permitted by law to impose a franchise fee rate on another gas provider that is
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utilizing the rights -of -way and providing or seeking to provide services in competition with
Company to customers within City's municipal boundaries and does not collect such a
franchise fee rate or collects a lesser rate than that provided herein, then the Company
may, at its option, demand that the franchise fee rate payable hereunder be adjusted so
as to be consistent with the lesser franchise fee rate, or no franchise fee rate charged to
such other gas provider. It is further the intent and agreement of City and Company that
Company should not be placed at a competitive disadvantage by the payments required
hereunder in the event other gas companies provide services in competition with
Company without utilizing City's rights -of -way as provided herein.
Section 11: 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. The Company shall be relieved of any
obligation to pay franchise fees to the extent the City has failed to provide information in
accordance with this Section 11.
Section 12: Accounts and Records
The Company shall maintain accounting, maintenance, and construction records
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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. Upon request by the City, or its designated
representative, and execution of a confidentiality agreement reasonably satisfactory to
the Company, the Company shall make available said records within thirty (30) days to
the City for the determination of the accuracy of the Gross Revenues upon which the
Company's franchise fee is based. The Company shall maintain its billing records only
for the period required by the FPSC and any examination conducted after such period
shall be confined to the billing records then available.
Section 13: Insurance
During the term of this Franchise, the Company shall keep in effect at all times
during the effective period hereof, a general liability insurance policy or policies or
evidence of self-insurance with a limit of no less than $5,000,000 combined single limits.
The above policies shall name City of Tamarac as an additional insured and shall remain
in full force and shall be undiminished during the effective period of this Ordinance. The
coverage requirements set forth in this Section 13 may be satisfied, in whole or in part,
with self-insurance.
The Company shall provide a certificate of insurance evidencing the required
insurance coverage. Company shall notify the City, in writing, at least thirty (30) days
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before any material alteration, material modification, or cancellation of such policy is to
become effective.
Section 14: Indemnification
In consideration of the permissions granted to the Company by this Franchise
Agreement, the Company hereby agrees to indemnify and hold harmless the City, its
officers, agents and employees from and against claims, suits, actions, and causes of
action, to the extent caused by the Company's negligent operation of the Distribution
System within the City during the term of this Franchise and resulting in personal injury,
loss of life or damage to property sustained by any person or entity, through or as a result
of the doing of any work herein authorized or the failure to do work herein required, and
including all reasonable costs, attorney's fees, expenses and liabilities incurred by the
City in connection with any such claim, suit or cause of action, including the investigation
thereof, and the defense of any action or proceeding brought thereon and any order,
judgment or decree which may be entered in any such action or proceeding or as a result
thereof; provided, however, that neither the Company nor any of its employees, agents,
contractor, licensees, or sublessees shall be liable under this section for any claims,
demands, suits, actions, losses, damages, or expenses, including attorney's fees, arising
out of the negligence, strict liability, intentional torts, criminal acts, or error of the City, its
officers, agents, or employees. The provisions of this section shall survive the expiration
or earlier termination of this Franchise Agreement. Notwithstanding any provision herein
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to the contrary, the Company's liability under this Agreement shall be limited to the assets
and business of Peoples Gas System, Inc. Nothing contained herein is intended nor shall
be construed to waive City's rights and immunities under the common law or Florida
Statutes 768.28, as amended from time to time.
Section 15: 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 receipt of service by certified U.S. mail or tracked overnight courier
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.
If the Company does not cure the violation(s) within the sixty (60) day period or
within a period in excess of sixty (60) days as agreed to by the parties, then the City shall
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have the right to terminate the Agreement with no further notice. 19
Section 16: Changes in Provisions Hereof
Changes in the terms and conditions hereof may be made by written agreement
between the City and the Company.
Section 17: 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.
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Section 18: Governing Law and Venue
This Franchise shall be governed by the laws of the State of Florida and applicable
federal law. Venue for any dispute concerning this Franchise shall be a court of competent
jurisdiction in Broward County.
Section 19: Conflicting Provisions
Whenever the requirements or provisions of this Ordinance conflict with the
requirements or provisions of any other lawfully adopted ordinance or statute, the most
restrictive shall apply. This Ordinance shall supersede any other Ordinance granting a
franchise to the Company.
Section 20:
Scrivener Errors
Any scrivener or typographical errors that do not affect any substantive provision
of this Ordinance may be corrected with notice to and authorization of the City Attorney
and City Manager without further process.
Section 21: Severability
If any clause, section, other part, or application of this Ordinance is held by any
court of competent jurisdiction to be unconstitutional or invalid, in part or application, it
shall not affect the validity of the remaining portions or applications of this Ordinance.
Section 22: 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
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City's passage and adoption hereof.
PASSED, FIRST READING this 8th day of March 2023.
PASSED, SECOND READING this 12th day of April 2023.
ATTEST:
N-, --1
KIMBERL DILLON, CMC
CITY CLERK
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V �
MICHELLE J. G MEZ
MAYOR
RECORD OF COMMISSION VOTE: 1st Reading MAYOR
GOMEZ�
DIST 1: V/M BOLTON
DIST 2: COMM. WRIGHT JR
DIST 3: COMM. VILLALOBOS
DIST 4: COMM. DANIEL �S
RECORD OF COMMISSION VOTE: 2nd Reading MAYOR
GOMEZ �JEES_
DIST 1: V/M BOLTON
DIST 2: COMM. WRIGHT JR
DIST 3: COMM. VILLALOBOS
DIST 4: COMM. DANIEL_
PEOPLES GAS SYSTEM, A DIVISION
OF TAMPA ELECTRIC COMPANY
By:
Title:
APPROVED AS TO FORM AND LEGAL SUFFICIENCY FOR THE USE AND RELIANCE
OF THIS CIT1Y_OFqTAMARAC ONLY.
ANS OTTINOT
TY ATTORNEY
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DocuSign Envelope ID. D27F1 DBD-7664-4834-A0F4-03D3297F5DB2
fie . C)ra #rsl9
Accepted this day of 7/10/2023 , A.D. 2023
PEOPLES GAS SYSTEM, INC.
By: �oea.saby:
hb,�O-u 1
Name: Helen Wesley
Title: President & CEO, Peoples Gas System, Inc.
oowSig . by
By: L�
ee izeea eaerie
Name: Tim O'Connor
Title: VP, Operations, Sustainability, & External Affairs