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HomeMy WebLinkAboutBackupTEMPORARY, NON-EXCLUSIVE FRANCHISE AGREEMENT THIS TEMPORARY, NON-EXCLUSIVE FRANCHISE AGREEMENT (this "Agreement") is made and entered into this , 2023, ("Effective Date") by and between the CITY OF MIAMI, FLORIDA, a Florida municipal corporation, whose address is 444 S.W. 2nd Avenue, Miami, Florida 33130 (the "City" or "Franchisor"), and PIVOTAL UTILITY HOLDINGS, INC. D/B/A FLORIDA CITY GAS, a New Jersey corporation qualified to do business in Florida, whose principal address is now 700 Universe Boulevard, Juno Beach, Florida 33408 (the "Franchisee"). WITNESSETH: WHEREAS, pursuant to City Ordinance No. 8309, the City has granted to the Franchisee's predecessor -in -interest, City Gas Company of Florida, a non-exclusive franchise to construct, erect, install, extend, maintain and operate its gas system facilities within the City; and WHEREAS, the term of the original frachnise expired in November 2004 and the City, pursuant to City Ordinance 12613, adopted on November 17, 2004 by the City Commission ("Commission"), granted to NUI Utilities, Inc. d/b/a NUI City Gas Company of Florida ("NUI Utilities"), and its successors and assigns, a short-term, non-exclusive franchise ("Franchise") to construct, erect, install, extend, maintain and operate its gas system facilities within the City while the City and NUI Utilities negotiated a new long- term, non-exclusive franchise agreement; and WHEREAS, on November 30, 2004, AGL Resources, Inc. acquired NUI Corporation which operated NUI Utilities, Inc. and NUI City Gas Company of Florida which became known as Florida City Gas and the Commission adopted Ordinance 12656 on February 24, 2005, in order to extend the term of the Franchise with NUI Utilities, Inc. d/b/a Florida City Gas that was expiring on February 28, 2005; and WHEREAS, in March of 2005, NUI Utilities, Inc. d/b/a Florida City Gas changed its corporate name to Pivotal Utility Holdings, Inc., d/b/a Florida City Gas; and WHEREAS, the Commission adopted Ordinance 12714 on July 28, 2005, in order to acknowledge the corporate name change and to extend the Franchise with Pivotal Utility Holdings, Inc., d/b/a Florida City Gas that was expiring on August 28, 2005; and WHEREAS, the term of the Franchise expires on February 28, 2006, and the City and Franchisee desire to enter into a new franchise agreement, but have not yet concluded negotiations on the acceptable terms and conditions of such long-term franchise agreement; and 1 WHEREAS, in order to allow the City and the Franchisee time to enter into a new franchise agreement on terms and conditions mutually agreeable to the City and the Franchisee, the City and the Franchisee have agreed to extend the term of the Franchise as set forth herein; and WHEREAS, the City Commission on February 9, 2006 passed on first reading and on March 9, 2006 adopted on second reading Ordinance No. 12779 authorizing the extension of the Franchise to August 31, 2006 and authorizing the City Manager to enter into and execute another extension; and WHEREAS, the prior franchise agreement expired on August 31, 2006, and Franchisee has continued to maintain and operate a system of works, pipes, pipe lines and all other necessary apparatus machinery, structures, and appurtenances in, on and under the streets, alleys, avenues, easements, and other public ways and places, in the City of Miami and has continued to pay the franchise fee; and WHEREAS, a new development project requires the issuance of a permit, Permit No. PW22001933UP, to authorize new Consumer connections in the public right-of-way, thereby requiring the formation of a new franchise agreement; and WHEREAS, the City and Franchisee desire to negotiate and enter into a new franchise agreement on terms and conditions mutually agreeable to the City and the Franchisee, but have not yet concluded negotiations; and WHEREAS, in order to allow the City and the Franchisee time to enter into a new franchise agreement, the City Commission on passed an Ordinance No. , authorizing the City Manager to enter into and execute this temporary Agreement; NOW, THEREFORE, in consideration of the foregoing and the mutual promises and obligations contained herein, the City and the Franchisee hereby agree as follows: Section 1. INCORPORATION OF RECITALS AND EXHIBITS The Recitals are true and correct and are hereby incorporated into and made a part of this Agreement. The following exhibits are attached hereto and are hereby incorporated into and made a part of this Agreement: Exhibit A — City Ordinance No. Exhibit B — Insurance Requirements Exhibit C — Copy of Continuing Payment/Performance Bond Exhibit D — Corporate Resolution In the event of a conflict between the provisions of this Agreement or any of its exhibits, the conflict shall be resolved in favor this Agreement then the priority order indicated above. 2 Section 2. DEFINITIONS. The word "Franchisee" shall mean Pivotal Utility Holdings, Inc., a New Jersey corporation, d/b/a Florida City Gas, its successors and assigns, and the word "City" shall mean the City of Miami, Florida, its successors and assigns, and the word "Consumer" shall mean any person, firm, or public or private corporation served by the Franchisee. Section 3. GRANT. There is hereby granted to the Franchisee for a term beginning September 1, 2006, and ending on the earlier of the completion or expiration of City of Miami Permit No. PW22001933UP, the execution of the new franchise agreement, or ninety (90) days after the Effective Date of this Agreement, a limited exclusive right to erect, install, extend, maintain and operate a system of works, pipes, pipe lines and all necessary apparatus, machinery, structures, and appurtenances in, on and under the streets, alleys, avenues, easements, and other public ways and places, in the City of Miami, Florida, as it is now constituted and as it may hereafter be added to or extended in the area bounded on the East by 27th Avenue as the same is extended North and South to the City limits and from 27th Avenue West to the Western boundaries of the City, for the purpose of transporting, distributing, and selling manufactured or natural gas to said City, its inhabitants and the public generally, for domestic, commercial and industrial uses, and for any and all other purposes for which gas, during the period of this grant, may be used, together with the right to enter upon the streets, alleys, avenues, easements, and other public. ways, places, and ground of said City for the purpose of removing and repairing said works, pipes, pipe lines and all necessary apparatus, machinery, structure or structures and appurtenances. Section 4. ASSIGNMENT. No sale, assignment, or transfer of the rights granted hereby except to an affiliate of Franchisee shall be effective unless the. Franchisee shall have filed written notice thereof with the City Manager, at least sixty (60) days prior to the scheduled date of such sale, assignment or transfer, and unless, subsequent to the filing of such notice, the City Commission shall have by prdinance approved and consented to such sale, assignment or transfer; provided, however, that any sale, assignment or transfer, decreed by a court of competent jurisdiction in any receivership or bankruptcy proceedings shall not be governed by the provisions of this Section. Section 5. USE OF STREETS. The said pipe lines, pipes, apparatus, structures, and appurtenances shall be erected, placed or laid in such manner as will, consistent with necessity, least interfere with other public uses of said streets, alleys, avenues, easements, and public grounds, and said streets shall not be unnecessarily obstructed, and before the Franchisee makes any excavation or disturbs the surface of any of the streets, alleys or other public places, it shall make application for a permit to the appropriate City authority and shall, with due diligence and 9 dispatch, place such streets or public places in as good condition and repair as before such excavation or disturbance was made, and in default thereof the City may make such repairs and charge the cost thereof to the Franchisee and collect the same from it. The City retains the right of reasonable regulation of the erection or construction of any works or laying any pipe or pipe lines, and to reasonably designate where such works and pipe lines shall be placed. The Franchisee hereby agrees to abide by all the rules and regulations and ordinances which the City has passed or might pass in the future, and further agrees to abide by any established policy which the City Commission or its duly authorized representative has passed; or established; or will establish; provided, however, it is not intended hereby that the City shall have the right of breaching the terms of this franchise other than is herein provided. Section 6. MAINTENANCE. All such works, pipes, pipe lines, apparatus, structures, appurtenances and the entire plant and system of Franchisee shall be constructed and maintained in such condition as will enable it to furnish adequate and continuous service and shall be constructed, installed and maintained in accordance with accepted good practice and in accordance with the orders, rules and regulations of the Florida Public Service Commission or other regulatory body having jurisdiction over the Franchisee. Section 7. LAYING OF PIPE. All main pipe lines shall be laid at least two feet and all lateral pipe lines not less than eighteen incho below the established grade of said streets, avenues, alleys, easements, and other public ways and places as such grades now exist or may hereafter be established, unless otherwise specifically authorized by proper authority of the City. Section 8. CONSTRUCTION WORK. The City reserves the right to lay and permit to be laid electric conduits, water, gas and other pipe lines or cables, sewers, and to do and permit to be done any underground work that may be necessary or proper by the City Commission or other governing body of the City in, across, along or under any street, alley, public way, easement, place -or other public ground. In permitting such work to be done, the City shall not be liable to the Franchisee herein for any damages so occasioned, nor shall the City in doing such work be liable to the Franchisee for any damages not wilfully and unnecessarily occasioned. Whenever, by reason of establishing a grade or by reason of changes in the grade of any street, or by reason of the widening, grading, paving or otherwise improving present or future streets, alleys, or other public ways and places, or in the location or manner of construction of any water pipes, electric conduits, sewers or other underground structures, it shall be deemed necessary by the City Commission, or other governing body of the City, to alter, change, adapt or conform the mains, pipe lines, service pipe or other apparatus or appurtenance of the Franchisee hereto, such alterations, or changes, shall be made by the rd Franchisee as ordered in writing by the City Commission or other governing body of the City, without claim for reimbursement or compensation for damages against the City. If the City shall require the Franchisee to adapt or conform its pipe lines, pipes, structures apparatus, appurtenances or other appliances, or in any way to alter, relocate or to change its property to enable any other person or corporation, except the City, Miami -Dade County, or the State of Florida, to use said street, alley, easement, highway or public place, the Franchisee shall be reimbursed by the 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 Franchisee' s property. The Franchisee further agrees that it shall not interfere with, change or injure any water pipes, drains, or sewers of the City, unless it has received specific permission from the City Commission, its duly authorized representative or Board. Section 9. INSURANCE/INDEMNIFICATION. Prior to the beginning of any work by the Franchisee within the corporate limits of the City of Miami, Florida, the Franchisee shall file with the City' s Risk Management Administrator and shall keep in full force and effect at all times during the effective period hereof, insurance certificates evidencing the liability insurance policy or policies, as further described in Exhibit B, the terms and conditions whereof shall be such as to provide for the protection and indemnification of the City with respect to any and all legally valid claims of any persons suffering injury, loss or damage to person or property by reason of the construction or operation of Franchisee' s natural gas distribution system within the corporate limits of the City of Miami, Florida. Each such insurance policy shall be subject to the acceptance and approval of the City' s Risk Management Administrator. Any primary insurance policy must be issued by a Company having a policyholder' s surplus at least five times the amount of coverage of the policy, and the Company must have a minimum rating of atleast BB in the current listing of Best's Rating Guide. Any excess policy used must be issued by Underwriters acceptable to the City Attorney. The aggregate combined single limit of liability of all such policies shall be in the minimum sum of $5,000,000.00, and said minimum sum shall remain in full force and shall be undiminished during the effective period of this Agreement. Every such insurance certificate shall contain a provision whereby every company executing the same shall obligate itself to notify the City' s Risk Management Administrator, in writing, at least thirty (30) days before any alteration, modification, or cancellation of such policy is to become effective. All insurance required hereunder may be maintained by the Franchisee and/ or by an affiliate of the Franchisee by self-insurance or pursuant to a master or so- called blanket policy of insurance. The City shall be named as an additional insured on such insurance policy. Franchisee agrees to indemnify, defend, covenant not to sue, and hold harmless forever the City, its officials, officers, agents and employees (collectively referred to as the "Indemnitees"), from and against all losses, costs, penalties, fines, damages, claims, expenses (including attorney's fee and costs), and liabilities (collectively referred to as "Liabilities") arising out of, resulting from, or in connection with Franchisee's performance or non-performance of this Agreement, whether it is, or is alleged to be, directly or indirectly caused, in whole or in part, by any act, omission, default or negligence (whether active or passive) of the Indemnitees, or any of them , or the failure of the Franchisee to comply with any of the provisions contained herein, or to conform to statutes, ordinances, or other regulations or requirements of any governmental authority, federal or state, in connection with the performance of this Agreement. Franchisee expressly agrees to indemnify, covenant not to sue, and hold harmless the Indemnitees, or any of them, from and against all liabilities which may be asserted by a current or former employee or agent of Franchisee, or any of its subcontractors, as provided above, for which the Franchisee's liability to such employee or former employee would otherwise be limited to payments under state Workers' Compensation or similar laws. This indemnity provision shall survive the termination of this Agreement and shall continue in effect until the expiration of the corresponding statute of limitations or the tolling thereof. Nothing herein is intended to be construed as a waiver of the City's sovereign immunity beyond the limitations set forth in Section 768.28, Florida Statutes. Section 10. PERFORMANCE BOND. That, within five (5) business days of the approval of this Agreement by the City Commission, the Franchisee shall file with the City Clerk, after approval by the City Attorney, an annual bond in the minimum sum of $50,000. 00, having as surety thereon a surety company qualified to do business in the State of Florida, and acceptable to the City, and conditioned for the full and faithful performance by the Franchisee of all requirements, duties and obligations imposed upon it by the provisions of this ordinance, and such bond to be furnished annually shall provide a continuing guarantee of such full and faithful performance at all times throughout the effective period hereof. Section 11. RULES — MAKING OF. The Franchisee shall have the right to make and enforce such reasonable rules and regulations as it may deem necessary for the extension of its facilities, and the sale of its gas and the prudent conduct of its business, provided that such rules and regulations shall not be in conflict with the laws, rules, and other regulatory authorities of the City, Miami - Dade County, or the State of Florida. Section 12. JURISDICTION. In the event that the Florida Public Service Commission, or other State regulatory authority, should be deprived of the authority to make rules and regulations governing the Franchisee, then the City Commission, or other governing body, shall have the right to fix 201 reasonable and compensatory rates to be paid for gas by the consumers, and to provide for the extension, repair, and maintenance of mains and service lines, and the connection with the pipes of the consumers and the installing and testing of meters, and to regulate the quality and pressure of gas, and to provide such other and further regulations as shall be reasonably necessary and proper to provide adequate service to consumers and to protect their interests. Section 13. ACCOUNTS AND RECORDS. The accounts and records of the Franchisee appertaining to gas service rendered hereunder shall be maintained within the State of Florida, and be open at all reasonable times for inspection by the duly authorized representatives of the City. The Franchisee shall use the Uniform System of Accounts for Public Gas Utilities prescribed by the Florida Public Service Commission of the State of Florida. The Franchisee shall establish and maintain appropriate accounts and records in such detail that revenues within the limits of the City of Miami are consistently declared separately from all other revenues. The Franchisee shall file in duplicate with the City Clerk of the City of Miami, monthly statements of gas revenues derived from within the City of Miami, annual financial statements and such other statements and reports as the City may reasonably prescribe. Within twenty (20) days after the close of each month, the Franchisee shall file as required by this section a statement of gas revenues derived from within the City of Miami for the preceding month. During each annual period and within one hundred twenty (120) days after the close of the Franchisee' s fiscal year, the Franchisee shall file as required by this section the balance sheet of the year then ended, and the related statements of income and retained earnings certified by Certified Public Accountant. The Franchisee shall at all times make and keep full and complete plats, maps and records, showing the reasonably exact locations, depth and size of all pipes and pipe lines owned by it in the City of Miami, or that may hereafter be laid, and showing the location and kind of all other works, structures, appliances and appurtenances, and shall furnish the City, within a reasonable time, with copies of all such plats, maps, and records, and these maps and records and all other records and contracts between the Franchisee for distribution in the City shall be available for inspection during business hours to the City through any duly authorized officer or employee of the City. Section 14. FRANCHISE FEE. In consideration of the approval of this Agreement by the City Commission, the Franchisee, its successors and assigns shall pay to the City, or its successors, on or before the 20th day of the month following the end of each immediately preceding month during the term of this franchise, a franchise fee for the said preceding month, of six percent (6%) of the Franchisee's gross revenue from the sale of natural gas to residential, commercial, governmental, industrial, and all other customers within the corporate limits of the City. Nothing herein shall be construed to be a limitation on the assessment and collection of valid taxes, licenses and other impositions by the City on and from the 7 Franchisee in excess of such six percent (6%) for each month during the term of this Agreement. Section 15. FORFEITURE OR REVOCATION OF GRANT. The violation by the Franchisee of any of the covenants, terms and conditions hereof, or default by the Franchisee in observing or carrying into effect any of said covenants, terms and conditions, shall authorize and empower the City Commission to declare a forfeiture of and to revoke and cancel all rights granted hereunder, provided, however, that before such action by the City Commission shall become operative and effective, the Franchisee 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 Commission with respect thereto, and Franchisee shall have had a period of sixty (60) days after service of such notice within which to terminate such violation or default; 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 Franchisee shall not constitute grounds for revoking and cancelling any rights hereunder. In the event that the Franchisee upon receipt of said written notice from the City does not desist from such violation within the time aforesaid, then the Franchisee shall be deemed to have forfeited and annulled and shall thereby forfeit and annul all of the said franchise, grants, privileges, rights, licenses and immunities given by this franchise. The Franchisee shall not enter into any verbal or written agreement with any person, firm, corporation, or other organization which agreement is conditioned upon the Franchisee receiving tax relief or any other relief from the City. Nothing herein contained shall prevent the Franchisee from negotiating with any person, firm, corporation, association, or other entity except Franchisee is prohibited from entering into any agreement with any person, firm, corporation, association or other utility receiving compensation from the City for the issuance of this franchise or the continuance thereof under its provisions. The Franchisee is required to make every effort to maintain operation and service at all times even in the event of any work stoppage by its employees. Section 16. TERMINATION OF GRANT BY INSOLVENCY OR BANKRUPTCY OF FRANCHISEE. That, in the event of a final adjudication of bankruptcy of the Franchisee, the City shall have full power and authority to terminate, revoke and cancel any and all rights granted under the provisions of this Agreement (Franchise). Section 17. CHANGES IN PROVISIONS HEROF. That minor changes in the terms and conditions hereof may be made by written agreement between the City and the Franchisee without further ratification by the City Commission, provided, however, that this Section shall not be construed as conferring authority to make any substantial or substantive changes in or modifications of the provisions of this Agreement which would be repugnant to or inconsistent with basic factors or principles underlying the terms and conditions hereof E'? Section 18. REPEALING SECTION. That all City ordinances or parts of ordinances, insofar as they are inconsistent with or in conflict with the provisions of this Agreement, be and the same are hereby repealed. Section 19. SAVING PROVISION. That, if any section, part of section, paragraph, sentence or clause of this Agreement 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. Section 20. RIGHT TO PURCHASE. The City hereby reserves the right at and after the expiration of this grant, and/ or in the event of the Franchisee's forfeiture of any of the terms, conditions and provisions of this Agreement, to purchase the physical property of the Franchisee used under this grant at a valuation determined in accordance with the provisions of the general law now in effect. Section 21. EMERGENCY CLAUSE. The ordinance approving this Agreement shall be declared to be an emergency measure on the ground of urgent public need for the preservation of peace, health, safety and property and the requirement of reading such ordinance on two separate days shall be dispensed upon approval by the City Commission in accordance with applicable law. Section 22. LONG TERM AGREEMENT. The execution of this Agreement by the City and the Franchisee is not, and shall not be construed as, an acceptance by either parry of any of the terms of this Agreement in the long-term franchise agreement to be negotiated between the City and the Franchisee. It is expressly understood by the parties that any new Consumer accounts created under this Agreement shall be governed by the terms and conditions of the long-term franchise agreement once executed. Section 23. SEVERABILITY If any section, sentence, clause, phrase, or word of this Agreement is for any reason held or declared to be unconstitutional, inoperative or void, such holding or invalidity shall not affect the remaining portions of this Agreement; and it shall be construed to have been the intent of the City Commission to approve this Agreement without such unconstitutional, invalid, or inoperative part therein; and the remainder of this Agreement 0J after the exclusion of such part or parts shall be deemed and held to be valid as if such parts had not been included therein. Section 24. COUNTERPARTS; ELECTRONIC SIGNATURES. This Agreement may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, and such counterparts shall together constitute but one and the same Agreement. The parties shall be entitled to sign and transmit an electronic signature of this Agreement (whether by facsimile, PDF or other email transmission), which signature shall be binding on the party whose name is contained therein. Any party providing an electronic signature agrees to promptly execute and deliver to the other parties an original signed Agreement upon request. Section 25. NOTICES. Notices required under this Agreement shall be deemed to be given when hand - delivered (with receipt therefore) or mailed by registered or certified mail, postage prepaid, return receipt requested. AS TO THE FRANCHISEE AS TO THE CITY: Name: Title: Address 1: Address 2: Email: J' Art Noriega City Manager 444 SW 2nd Avenue, 10' Floor Miami, FL 33130 anorie gagmiami gov.com WITH A COPY TO: Victoria Mendez City Attorney 444 SW 2nd Avenue, 9t' Floor Miami, FL 33130 vmendezkmiamigov.com 10 IN WITNESS WHEREOF, the City and the Franchisee have executed this Agreement on the respective dates set forth below. ATTEST: THE CITY OF MIAMI, A MUNICIPAL CORPORATION OF THE STATE OF FLORIDA BY: BY: Todd B. Hannon City Clerk APPROVED AS TO LEGAL FORM AND CORRECTNESS: BY: Victoria Mendez City Attorney AT' BY: Name: Date: Corporate Secretary Arthur Noriega City Manager APPROVED AS TO INSURANCE REQUIREMENTS: BY: Ann -Marie Sharpe Director of Risk Management PIVOTAL UTILITY HOLDINGS, INC. D/B/A FLORIDA CITY GAS, A NEW JERSEY CORPORATION BY: Name: Title: Date: 11 Exhibit A — City Ordinance No. [To be provided] V 12 Exhibit B —Insurance Requirements INSURANCE REQUIREMENTS PIVOTAL UTILITY HOLDINGS, INC. D/B/A FLORIDA CITY GAS I. Commercial General Liability A. Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence $1,000,000 General Aggregate Limit $ 2,000,000 Products/Completed Operations $ 1,000,000 Personal and Advertising Injury $1,000,000 B. Endorsements Required City of Miami listed as an additional insured Contingent and Contractual Liability Explosion, Collapse and Underground Hazard Primary Insurance Clause Endorsement 11. Business Automobile Liability A. Limits of Liability Bodily Injury and Property Damage Liability Combined Single Limit Any Auto, Scheduled or Owned Autos Including Hired, Borrowed or Non -Owned Autos Any One Accident $ 1,000,000 B. Endorsements Required City of Miami included as an additional insured 13 III. Worker's Compensation Limits of Liability Statutory -State of Florida Waiver of subrogation Employer's Liability A. Limits of Liability $1,000,000 for bodily injury caused by an accident, each accident. $1,000,000 for bodily injury caused by disease, each employee $1,000,000 for bodily injury caused by disease, policy limit IV. Umbrella Policy (Excess Follow Form) A. Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence $ 5,000,000 Aggregate $ 5,000,000 City of Miami listed as additional insured. Coverage is excess follow form over all liability polices contained herein. The above policies shall provide the City of Miami with written notice of cancellation or material change from the insurer not less than (30) days prior to any such cancellation or material change, or in accordance to policy provisions. Companies authorized to do business in the State of Florida, with the following qualifications, shall issue all insurance policies required above: The company must be rated no less than "A" as to management, and no less than "Class V" as to Financial Strength, by the latest edition of Best's Insurance Guide, published by A.M. Best Company, Oldwick, New Jersey, or its equivalent. All policies and /or certificates of insurance are subject to review and verification by Risk Management prior to insurance approval. 14 Exhibit C — Copy of Continuing Payment/Performance Bond [To be provided] IV 15 Exhibit D — Corporate Resolution [To be provided] IV 16