HomeMy WebLinkAboutLegislation-SUBCity of Miami
Ordinance 14195
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Legislation
City Hall
3500 Pan American Drive
Miami, FL 33133
www.miamigov.cor
File Number: 14247 Final Action Date: 7/27/2023
AN ORDINANCE OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S),
GRANTING TO PIVOTAL UTILITY HOLDINGS, INC. D/B/A FLORIDA CITY
GAS, ITS SUCCESSORS, AND ASSIGNS, A NON-EXCLUSIVE NATURAL GAS
FRANCHISE AGREEMENT TO USE THE PUBLIC RIGHTS OF WAY OF THE
CITY OF MIAMI ("CITY") AND IMPOSING PROVISIONS AND CONDITIONS
RELATING THERETO; PROVIDING FOR PAYMENTS TO THE CITY DURING
A TERM OF TWENTY (20) YEARS; CONTAINING A SEVERABILITY CLAUSE;
PROVIDING FOR AN EFFECTIVE DATE; AND REPEALING PRIOR
ORDINANCE.
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SPONSOR(S): Commissioner Manolo Reyes r ��
WHEREAS, the City of Miami, a Florida municipal Corporation ("City"), recogrii#$ than
the City and its residents need and desire the benefits of a natural gas franchise; and-
WHEREAS, Pivotal Utility Holdings, Inc. d/b/a Florida City Gas ("Company"), heerr:
designated by the Florida Public Service Commission to serve an area which encompas%bs the
territorial boundaries of the City; and
WHEREAS, the Company and the City mutually desire to enter into an agreement
providing for the payment of fees to the City in exchange for the non-exclusive right for the
Company's use of the right-of-way within certain areas of the City pursuant to certain terms and
conditions; and
WHEREAS, the City Commission deems it to be in the best interest of the City and its
residents to grant the Company the non-exclusive right to the use certain City rights -of -way and
adopt this Ordinance which will serve as the Franchise Agreement;
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF
MIAMI, FLORIDA:
Section 1: The recitals and findings contained in the Preamble to this Ordinance are
adopted and incorporated as if fully set forth in this Section.
Section 2: DEFINITIONS
For the purposes of this Franchise Agreement, the following terms shall have the following
meaning.
A. "City" means the City of Miami, a municipal corporation of the State of
Florida.
B. "Customer" shall mean any Person served by the Company within the
corporate limits of the City.
C. "Company" shall mean Pivotal Utility Holdings, Inc. d/b/a Florida City Gas,
a New Jersey corporation, its successors, and assigns.
City of Miami Page 1 of 8 File ID: 14247 (Revision: A) Printed On: 8/2/2023
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File ID: 14247 Enactment Number: 14195
D.
"Franchise Agreement" shall mean this non-exclusive franchise
agreement as contained in this Ordinance.
E.
"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.
F.
"Effective Date" shall mean the date this Franchise Agreement becomes
effective as described in Section 22 below.
G.
"FPSC" shall mean the Florida Public Service Commission or any
successor agency.
L H.
"Gross Revenues" shall mean the Company's billed revenues, less actual
write-offs, from the sale, distribution or delivery of natural gas to
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Customers within the City (as such customers are defined by FCG's
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tariff). The term "write-offs" refers to uncollectable billed revenues from
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the sale, distribution or delivery of natural gas to residential, commercial,
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and industrial customers within the incorporated areas of the City; such
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revenues are limited to the precise revenues described therein, and
that such revenues do not include, by way of example and not limited
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to: revenues from other sales to public authorities (service with
eligibility restricted to governmental entities); revenues from sales for
resale (service to other utilities for resale purposes); franchise fees;
late payment charges; and other service charges.
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, 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 controlled by the City.
Section 3: GRANT
The City hereby grants to the Company for a period of twenty (20) years from the
Effective Date 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, annexed to, or consolidated with the City, a
Distribution System subject to the terms and conditions herein contained. The Company shall
construct, maintain and operate Gas System Facilities in accordance with established industry
practices, and applicable federal, state and local law, including the orders, rules and regulations
of the FPSC or any other regulatory body having jurisdiction over the Company and, to the
extent permitted by law, the City's installation, maintenance and operation standards in respect
of natural gas.
The City acknowledges that the rates, fees, and charges that Company charges its
Customers are determined by the FPSC.
City of Miami Page 2 of 8 File ID: 14247 (Revision: A) Printed on: 8/2/2023
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File ID: 14247 Enactment Number: 14195
This grant of authority to Company is strictly limited to the provision of natural gas
service only. It is explicitly recognized that this Franchise does not limit the Company's ability to
operate a liquefied petroleum (commonly referred to as LP gas, bottled gas, or propane)
business within the City, similar to any other liquefied petroleum business, nor does it limit the
City's ability to assess a franchise fee upon the liquefied petroleum business within the limits
permitted under Florida law.
Section 4: TERM
Except as provided in Section 17, the Franchise hereby granted shall be for a period of
twenty (20) years from the Effective Date; provided, however, that the Franchise will
automatically renew for one (1) ten (10) year term, unless one (1) of the parties notifies the other
with no less than one hundred eighty (180) days' written notice prior to the expiration of the
initial 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 initial term.
Section 5: ASSIGNMENT
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. Notwithstanding the foregoing, Company shall have the right,
without obtaining the City's consent, to transfer or assign this Franchise as a result of a total or
complete merger or consolidation of Company with a third party, or sale of the Company's
assets. Any sale, assignment, lease or other alienation and transfer of this Franchise shall be
subject to the conditions that the successor -in -interest to the Facilities and/or the rights under
this Franchise shall have agreed in writing to be bound by the terms and conditions of this
Agreement.
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Section 6: CITY COVENANT
As further consideration for this Franchise Agreement, the City covenants andagrees
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 Qily;as
modified, during the term of this Franchise Agreement. �n
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Section 7: USE OF STREETS
(A) 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. The Company shall,
with due diligence and dispatch, place such Rights -of -way in as good a condition or better as
before such excavation or disturbance was made; provided, however, that should the Company
fail within ten (10) 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 reasonable cost thereof to the Company. In the event the City creates a
utility tunnel in any Right-of-way, it may be used by the Company, space permitting.
City of Miami Page 3 of 8 File ID: 14247 (Revision: A) Printed on: 81212023
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File ID: 14247 Enactment Number: 14195
To the extent consistent with Florida law, federal law, and all applicable regulations, the
Company hereby agrees to abide by all the rules, regulations, and ordinances which the City
has passed or might pass in the future in the exercise of its police powers and further agrees to
abide by any established policy which the City or its duly authorized representative has passed,
established, or will establish in the exercise of its police powers; 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. Should the City attempt to vacate
any Right-of-way after the Effective Date of this Franchise, the Company agrees it reserves no
right in the continued placement of any portion of its Distribution System in said Right-of-way
and that if consulted as part of such a process to vacate a Right-of-way, its consent thereto shall
not be unreasonably withheld; provided, however, that the City and the Company shall
cooperate to find a suitable alternative Right-of-way such that the Company can continue to
serve any Customers that would be affected by the proposed changes to the placement of the
Distribution System.
(B) The Distribution System of the Company shall be installed, located, or relocated so
as to not unreasonably interfere with traffic over the Rights -of -way or with reasonable egress
from and ingress to abutting property. To avoid conflicts with vehicular traffic ("Traffic"), the
location or relocation of all facilities or Distribution System shall be made as representatives of
the City may prescribe in accordance with the City's reasonable rules and regulations with
reference to the placing and maintaining in, under, upon, along, over, and across said Rights -of -
way; provided, however, that such rules or regulations (i) shall not prohibit the exercise of the
Company's right to use said Rights -of -way for reasons other than unreasonable interference
with Traffic, (ii) shall not unreasonably interfere with the Company's ability to furnish sufficient,
adequate, and efficient service to all of its customers, and (iii) shall not require the relocation of
any of the Company's facilities or Distribution System installed before or after the Effective Date
in Rights -of -way unless or until widening or otherwise changing the configuration of the paved
portion of any Right-of-way used by motor vehicles causes such installed facilities or Distribution
System to unreasonably interfere with Traffic. Such rules and regulations shall recognize that
above -grade facilities or Distribution System of the Company installed after the Effective Date
should be installed near the outer boundaries of the Rights -of -way to the extent possible and
practicable. When any portion of a Right-of-way is excavated by the Company in the location or
relocation of any of its facilities or Distribution System, the portion of the Right-of-way so
excavated shall within a reasonable time be placed by Company at its expense in as good a
condition or better as before such excavation or disturbance was made. The City shall not be
liable to the Company for any cost or expense in connection with any relocation of the
Company's facilities or Distribution System required under subsection (B)(iii) of this Section,
except, however, the Company shall be entitled to reimbursement of its costs as is provided -by
law and reimbursement of its costs from others, excluding the City.
Section 8: MAINTENANCE
All such components of the Distribution System of the Company located within the City
shall be installed and maintained by the Company in accordance with accepted good practice
and in accordance with the orders, rules, and regulations of the FPSC. �-
Section 9: LAYING OF PIPE _ Zn
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.
City of Miami Page 4 of 8 File ID: 14247 (Revision: A) Printed on: 81212023
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File ID: 14247 Enactment Number: 14195
Section 10: CONSTRUCTION WORK
The City reserves the right to permit to be laid electric conduits, water and gas pipes,
and lines, cables, and 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-
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of -way, or by reason of the widening, grading, paving, or otherwise improving present or future
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Rights -of -way, or in the location or manner of construction of any water pipes, electric conduits,
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sewers, or other underground structure located within the Rights -of -way, it shall be deemed
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necessary by the City to remove, relocate, or disconnect any portion of the Distribution System
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of the Company hereto for such public purpose, such removal, relocation, or disconnection shall
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be made by the Company as ordered in writing by the City without claim for reimbursement. If
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the City shall require the Company to remove, relocate, or disconnect any portion of its
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Distribution System or in any way to alter the placement or location of the Distribution System,
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to enable any other Person to use said Rights -of -way of the City, as part of its permitting or
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approval process, the City shall require the Person desiring or occasioning such removal,
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relocation, disconnection, or alteration to reimburse the Company for any loss, cost, or expense
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caused by or arising out of such removal, relocation, disconnection, or alteration of any portion
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of the Distribution System. The Company further agrees that it will not intentionally interfere
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with, change, or injure any water pipes, drains, storm sewers, or sanitary sewers of the City
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unless it has received specific permission from the City or its duly authorized representative.
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Section 11: FRANCHISE FEE
(A) Within sixty (60) days after the close of the first full billing month following the
Effective Date 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.
Each monthly franchise fee payment shall be accompanied by a statement clearly
showing the Gross Revenues of the Company, certified by a representative of the Company
having the requisite knowledge to produce such a statement.
(B) In the event the Company enters into a franchise agreement with another municipality or
governmental entity located, within the State of Florida, the terms of which provide for the:
payment of franchise fees by Company at a rate greater than six (6.0%) percent pf bfoss'
Revenue under the same terms and conditions as specified in Section 11(A), Company, upon , 4
written request of the City, shall negotiate and enter into a new franchise agreement with the :4
City in which the percentage to be used in calculating monthly payments under Section t-1�A) 7
hereof shall be no greater than that percentage which Company has agreed to use as a-Wsis
for the calculation of payments to any such Other Governmental Entity.
Section 12: IDENTIFICATION OF CITY RESIDENTS r c�
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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's 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.
City of Miami Page 5 of 8 File ID: 14247 (Revision: A) Printed on: 8/2/2023
File ID: 14247 Enactment Number: 14195
Section 13: ACCOUNTS Ai"i RECORDS
The Company shall maintain accounting, maintenance, and construction records as
prescribed by the FPSC. The Company shall establish and maintain appropriate accounts and
records in such detail that revenues within the corporate limits of the City are consistently
declared separately from all other revenues and such records shall be maintained within the
State of Florida ("State").
Section 14: AUDIT AND INSPECTION
The City may, upon reasonable notice and not during another scheduled Company
franchise audit, at the City's expense, examine the records of the Company relating to the
calculation of the franchise payment for the year preceding such anniversary date. Such
examination shall be during normal business hours at the Company's office where such records
are maintained. Records not prepared by the Company in the ordinary course of business may
be provided at the City's expense and as the City and the Company may agree in writing.
Information identifying the Company's customers by name or their consumption shall not be
taken from the Company's premises. Such audit shall be impartial and all audit findings,
whether they decrease or increase payment to the City, shall be reported to the Company. The
City's right to examine the records of the Company in accordance with this Section shall not be
conducted by any third party employed by the City whose fee, in whole or part, for conducting
such audit is contingent on findings of the audit.
The City will maintain the confidentiality of the Company's confidential documents. The
City will be given access to confidential documents while on the Company's premises but shall
not remove those confidential documents from the Company's premises unless expressly
authorized to do so by the Company. Information relative to this audit and likely to be deemed
confidential by the Company includes, but is not limited to, nonpublic customer or customer
account information, nonpublic policies and procedures, and any other nonpublic information
that gives the disclosure of which could harm the competitive position of the Company.
Section 15: INSURANCE
During the term of this Franchise, the Company shall keep in full force and effect, at atl;
times during the effective period hereof insurance certificates in accordance to Exhibit uA". ?le
coverage requirements set forth in this Section may be satisfied, in whole or in part, 09P selfR!
insurance. -:
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The Company shall give notice to the City of any material alteration, modification,, or any
cancellation of a policy. = -a
At the time of its acceptance of the terms and conditions of this Ordinance as pfdvid�-q
herein, the Company shall file with the City Clerk, after approval by the City Attorney, *1-ani46al
bond in the minimum sum of $500,000.00 having as surety thereon a surety company qualified
to do business in the State, acceptable to the City, and conditioned for the full and faithful
performance by the Company of all requirements, duties, and obligations imposed upon it by the
provisions of this Ordinance. Such bond shall be furnished annually and shall provide a
continuing guarantee of such full and faithful performance at all times throughout the effective
period hereof.
Section 16: INDEMNIFICATION
City of Miami Page 6 of 8 File ID: 14247 (Revision: A) Printed on: 8/2/2023
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File ID: 14247 Enactment Number: 14195
The City shall in no way be liable or responsible for any accident or damage that may
occur in the construction, operation, or maintenance by the Company of its facilities or
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Distribution System hereunder, regardless of other easement agreements that may be or have
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been executed by the parties to this Franchise without hold harmless and indemnification
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provisions and the acceptance of this Ordinance shall be deemed an agreement on the part of
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the Company to indemnify and defend the City and hold the City, its officials, employees, and
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assigns harmless against any and all liability, loss, cost, damage, judgment, decree, action,
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cause of action, claim, or expense which may accrue to the City to the extent caused by the
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Company's installation, removal, relocation, sub -lease, construction, operation, or maintenance
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of its facilities or Distribution System that results in personal injury, loss of life, or damage, loss,
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or destruction of or damage to property sustained by any person or entity.
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Section 17: TERMINATION BY CITY
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•{' (A) Violation by the Company of any of the covenants, terms, and conditions
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o `ems hereof, or default by the Company in observing or carrying into effect any of said
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�. covenants, terms, and conditions shall authorize and empower the City to declare a
termination of this Franchise Agreement; provided, however, that before such action
by the City shall become operative and effective, the Company shall have been
C1_ served by the City with a written notice setting forth all matters pertinent to such
i� violation or default describing the action of the City with respect thereto and the
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�=y;i Company shall have had a period of sixty (60) days after such notice, or, in the event
uj :, such cure reasonably requires a period of more than sixty (60) days, sixty (60) days
r-4 `-�"' 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.
Section 18: MODIFICATIONS OR AMENDMENTS
It is understood that no modification, amendment, or alteration in the terms or conditions
contained herein shall be effective unless contained in a written document executed with the
same formality and of equal dignity herewith and approved by the City Commission after a
public meeting.
Section 19: 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
City of Miami Page 7 of 8 File ID: 14247 (Revision: A) Printed on: 8/2/2023
File ID: 14247 Enactment Number.- 14195
away with the ability of a municipality to grant a franchise altogether, then the Company or the
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City may terminate this Franchise Agreement by providing ninety (90) days written notice to the
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other party.
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Section 20: GOVERNING LAW: VENUE: ATTORNEYS' FEES
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This Franchise Agreement shall be governed by the laws of the State and applicable
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federal law. The parties agree that venue in all actions, claims, or proceedings shall lie in
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courts of competent jurisdiction in Miami -Dade County, Florida. Each party shall bear its own
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respective attorneys' fees.
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Section 21: COMPLIANCE WITH LAWS
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The Company hereby acknowledges and agrees that the Company's compliance with all
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applicable Federal, State, and local laws, ordinances, codes, rules, and regulations is a
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condition of this Franchise Agreement.
Section 22: EFFECTIVE DATE
This Ordinance and the Franchise Agreement shall become effective upon its
acceptance by the Company, which acceptance must be evidenced in writing within forty-five
(45) days of the City's passage and adoption hereof.' For avoidance of doubt, the Effective Date
is the 10t' day of September, 2023.
APPROVED AS TO FORM AND CORRECTNESS:
Cjt6riadez, City Attor I iey 7/3/2023 tYt6ria`7rvrddz, Cify Attor ley 8/2/2023
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' This Ordinance shall become effective as specified herein unless vetoed by the Mayor within ten (10)
days from the date it was passed and adopted. If the Mayor vetoes this Ordinance, it shall become
effective immediately upon override of the veto by the City Commission or upon the effective date stated
herein, whichever is later.
City of Miami Page 8 of 8 File ID: 14247 (Revision: A) Printed on: 8/2/2023
City of Miami
Ordinance 14195
�Ry Legislation
File Number: 14247
City Hall
3500 Pan American Driv
Miami, FL 33133
www.miamigov.com
Final Action DaUF 7/27/2023
AN ORDINANCE OF THE MIAMI CITY COMMISSION, WITH A CHMENT(S),
GRANTING TO PIVOTAL UTILITY HOLDINGS, INC. D/B/A FL IDA CITY
GAS, ITS SUCCESSORS, AND ASSIGNS, A NON-EXCLUS NATURAL GAS
FRANCHISE AGREEMENT TO USE THE PUBLIC RIGHT F WAY OF THE
CITY OF MIAMI ("CITY") AND IMPOSING PROVISIONS ND CONDITIONS
RELATING THERETO; PROVIDING FOR PAYMENTS O THE CITY DURING
A TERM OF TWENTY (20) YEARS; CONTAINING EVERABILITY CLAUSE;
PROVIDING FOR AN EFFECTIVE DATE; AND R ALING PRIOR,
ORDINANCE.
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SPONSOR(S): Commissioner Manolo Reyes== ry
WHEREAS, the City of Miami, a Florida muni al Corporation ("City"), recogrTiv- tl t
the City and its residents need and desire the ben s of a natural gas franchise; and:
- _..
WHEREAS, Pivotal Utility Holdings, In d/b/a Florida City Gas ("Company'), his bes-a
designated by the Florida Public Service Co ission to serve an area which encompasses the
territorial boundaries of the City; and
WHEREAS, the Company and a City mutually desire to enter into an agreement
providing for the payment of fees to a City in exchange for the non-exclusive right for the
Company's use of the right-of-wa ithin certain areas of the City pursuant to certain terms and
conditions; and
WHEREAS, the City ommission deems it to be in the best interest of the City and its
residents to grant the Co any the non-exclusive right to the use certain City rights -of -way and
adopt this Ordinance w h will serve as the Franchise Agreement;
NOW, THE FORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF
MIAMI, FLORID
Secti 1. The recitals and findings contained in the Preamble to this Ordinance are
adopted a incorporated as if fully set forth in this Section.
ection 2: DEFINITIONS
For tA purposes of this Franchise Agreement, the following terms shall have the following
m ning.
A. "City" means the City of Miami, a municipal corporation of the State of
Florida.
B. "Customer" shall mean any Person served by the Company within the
corporate limits of the City.
C. "Company" shall mean Pivotal Utility Holdings, Inc. d/b/a Florida City Gas,
a New Jersey corporation, its successors, and assigns.
City of Miami Page 1 of 8 File ID: 14247 (Revision:) Printed On: 8/1/2023
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Number 14195
D.
"Franchise Agreement" shall mean this non-exclusive franchise
agreement as contained in this Ordinance.
E.
"Distribution System" shall mean any and all transmission p' lines, main
pipe lines, and service lines, together with all tubes, traps, ents, vaults,
manholes, meters, gauges, regulators, valves, conduits, achments,
structures, and other appurtenances, as are used or u ful in the sale,
distribution, transportation, or delivery of Natural Ga nd as are situated
within the corporate limits of the City.
F.
"Effective Date" shall mean the date this Franchi Agreement becomes
effective as described in Section 22 below.
G.
"FPSC" shall mean the Florida Public Servic ommission or any
successor agency.
H.
"Gross Revenues" shall mean the Comp y's billed revenues, less actual
write-offs, from the sale, distribution or livery of natural gas to
Customers within the City (as such c omers are defined by FCG's
tariff). The term "write-offs" refers uncollectable billed revenues from
the sale, distribution or delivery o atural gas to residential, commercial,
and industrial customers within a incorporated areas of the City; such
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revenues are limited to the p cise revenues described therein, and
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that such revenues do not ' clude, by way of example and not limited
to: revenues from other es to public authorities (service with
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eligibility restricted to ernmental entities); revenues from sales for
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resale (service to oth utilities for resale purposes); franchise fees;
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late payment charg ; and other service charges.
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"Person" shall me any individual, firm, partnership, estate, corporation,
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company, or oth entity, including, but not limited to, any government
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entity.
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"Natural Ga or "Gas" shall mean natural gas, manufactured gas, and/or
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a mixture gases which is distributed in pipes and measured by meter
on the C tomer's premise. It shall not mean propane gas or liquefied
petrole gas (commonly referred to as "bottled gas").
K.
"Rig of -way" means any street, road, lane, highway, avenue, boulevard,
all , waterway, bridge, easement, public place, or other right-of-way that
i ontrolled by the City.
Section 3:
The Cit ereby grants to the Company for a period of twenty (20) years from the
Effective Dat a non-exclusive right, privilege, and franchise to lay, erect, construct, operate,
/maintaitai in, on, or under any and all Rights -of -way, as they now exist or may be hereafter
, opened, laid out, or extended within the present incorporated limits of the City, or in
tory as may be hereafter added, annexed to, or consolidated with the City, a
n System subject to the terms and conditions herein contained. The Company shall
, maintain and operate Gas System Facilities in accordance with established industry
, and applicable federal, state and local law, including the orders, rules and regulations
SC or any other regulatory body having jurisdiction over the Company and, to the
rmitted by law, the City's installation, maintenance and operation standards in respect
of natural gas.
The City acknowledges that the rates, fees, and charges that Company charges its
Customers are determined by the FPSC.
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City of Miami Page 2 of 8 File ID: 14247 (Revision:) Printed on: 81112023
File ID: 14247 Enactment Number. 14195
This grant of authority to Company is strictly limited to the provision of naval gas
service only. It is explicitly recognized that this Franchise does not limit the Company' ability to
operate a liquefied petroleum (commonly referred to as LP gas, bottled gas, [propane)
business within the City, similar to any other liquefied petroleum business, nor d sit limit the
City's ability to assess a franchise fee upon the liquefied petroleum business ithin the limits
permitted under Florida law.
Section 4: TERM
Except as provided in Section 17, the Franchise hereby grante hall be for a period of
twenty (20) years from the Effective Date; provided, however, that th ranchise will
automatically renew for one (1) ten (10) year term, unless one (1) he parties notifies the other
with no less than one hundred eighty (180) days' written notice p ' r to the expiration of the
initial term that it does not want the Franchise to automatically r ew. If either party elects not
to renew the Franchise, then the Franchise shall expire upon a conclusion of the initial term.
Section 5: ASSIGNMENT
The Franchise hereby granted shall not be leased, a gned or otherwise alienated or disposed
of except with the prior express written consent of t City, which shall not be unreasonably
withheld or unduly delayed. Notwithstanding the f egoing, Company shall have the right,
without obtaining the City's consent, to transferf assign this Franchise as a result of a total or
complete merger or consolidation of CompaneWith a third party, or sale of the Company's
assets. Any sale, assignment, lease or othe alienation and transfer of this Franchise shall be
subject to the conditions that the success -in-interest to the Facilities and/or the rights under
this Franchise shall have agreed in writi to be bound by the terms and conditions of this
Agreement.
Section 6: CITY COVENA .. N
As further coXOFSTREETS
r this Franchise Agreement, the City covenants arO agrees
that it will not, durinis Franchise Agreement or any extension thereof, �Fh' in
the business of disting Natural Gas within the corporate limits of the city; -as ry
modified, during theranchise Agreement. "
Section 7: UTS
(A) The tribution System shall be erected, placed, or laid in such manner as'inlill, 0'
consistent wit ecessity, least interfere with other public uses of the Rights -of -way arrd'said
Rights-of-wa shall not be unnecessarily obstructed and before, except in an emergency
situation, t Company makes any excavation or disturbs the surface of any of the Rights -of -
way, it s I make application for a permit to the appropriate City authority. The Company shall,
with d diligence and dispatch, place such Rights -of -way in as good a condition or better as
befor such excavation or disturbance was made; provided, however, that should the Company
fail ithin ten (10) of its receipt of written notice from the City to restore such Rights -of -way, then
t City may undertake such restoration (other than any restoration work on the Distribution
ystem) and charge the reasonable cost thereof to the Company. In the event the City creates a
utility tunnel in any Right-of-way, it may be used by the Company, space permitting.
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City of Miami Page 3 of 8 File ID: 14247 (Revision:) Printed on: 81112023
File ID: 14247 Enactment Number: 14185
To the extent consistent with Florida law, federal law, and all applicable refilations, the
Company hereby agrees to abide by all the rules, regulation/Company
d ordinances w ch the City
has passed or might pass in the future in the exercise of its powers and oher agrees to
abide by any established policy which the City or its duly aued represe tive has passed,
established, or will establish in the exercise of its police powprovided, wever, that the City
shall not pass any ordinance or regulation that results in a ial chan in the rights or
obligations of the Company under the Franchise Agreemenuld th ity attempt to vacate
any Right-of-way after the Effective Date of this Franchise, omp y agrees it reserves no
right in the continued placement of any portion of its DistribSys m in said Right-of-way
and that if consulted as part of such a process to vacate a of ay, its consent thereto shall
not be unreasonably withheld; provided, however, that the the Company shall
cooperate to find a suitable alternative Right-of-way such thCompany can continue to
serve any Customers that would be affected by the proposenges to the placement of the
Distribution System.
(B) The Distribution System of the Company sha a installed, located, or relocated so
as to not unreasonably interfere with traffic over the Ri is -of -way or with reasonable egress
from and ingress to abutting property. To avoid con ' is with vehicular traffic ("Traffic"), the
location or relocation of all facilities or Distribution stem shall be made as representatives of
the City may prescribe in accordance with the Ci reasonable rules and regulations with
reference to the placing and maintaining in, and , upon, along, over, and across said Rights -of -
way; provided, however, that such rules or re ations (i) shall not prohibit the exercise of the
Company's right to use said Rights. way f reasons other than unreasonable interference
with Traffic, (ii) shall not unreasonably inte re with the Company's ability to furnish sufficient,
adequate, and efficient service to all of it customers, and (iii) shall not require the relocation of
any of the Company's facilities or Distri tion System installed before or after the Effective Date
in Rights -of -way unless or until widen' g or otherwise changing the configuration of the paved
portion of any Right-of-way used by otor vehicles causes such installed facilities or Distribution
System to unreasonably interfere ith Traffic. Such rules and regulations shall recognize that
above -grade facilities or Distribu n System of the Company installed after the Effective Date
should be installed near the o r boundaries of the Rights -of -way to the extent possible and
practicable. When any porti of a Right-of-way is excavated by the Company in the location or
relocation of any of its facili s or Distribution System, the portion of the Right-of-way so
excavated shall within a r sonable time be placed by Company at its expense in as good a
condition or better as b re such excavation or disturbance was made. The City shall not be
liable to the Company r any cost or expense in connection with any relocation of the m�
Company's facilities Distribution System required under subsection (B)(iii) of this Section
except, however, t Company shall be entitled to reimbursement of its costs as is pfovIdedrby
law and reimbur ment of its costs from others, excluding the City. ; s�
Sectio 8: MAINTENANCE C)r" N
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/ccorda!nce
h components of the Distribution System of the Company located within the CjV
shalled and maintained by the Company in accordance with accepted gooc-rpctig
and iwith the orders, rules, and regulations of the FPSC. cr,
Section 9: LAYING OF PIPE
/ 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.
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Section 10: CONSTRUCTION WORK
The City reserves the right to permit to be laid electric conduits, water and ats pipes,
and lines, cables, and sewers and to do and permit to be done any underground rrk that may
be deemed necessary or proper by the City, in, across, along, or under any Ri t—of-way.
Whenever by reason of establishing a grade or by reason of changes in the de of any Right-
of-way, or by reason of the widening, grading, paving, or otherwise improvi present or future
Rights -of -way, or in the location or manner of construction of any water pi s, electric conduits,
sewers, or other underground structure located within the Rights -of -way shall be deemed
necessary by the City to remove, relocate, or disconnect any portion o e Distribution System
of the Company hereto for such public purpose, such removal, reloc on, or disconnection shall
be made by the Company as ordered in writing by the City without aim for reimbursement. If
the City shall require the Company to remove, relocate, or disco ect any portion of its
Distribution System or in anyway to alter the placement or loc on of the Distribution System,
to enable any other Person to use said Rights -of -way of the y, as part of its permitting or
approval process, the City shall require the Person desirin r occasioning such removal,
relocation, disconnection, or alteration to reimburse the C pany for any loss, cost, or expense
caused by or arising out of such removal, relocation, di onnection, or alteration of any portion
of the Distribution System. The Company further agre that it will not intentionally interfere
with, change, or injure any water pipes, drains, stor sewers, or sanitary sewers of the City
unless it has received specific permission from th ity or its duly authorized representative.
Section 11: FRANCHISE FEE
(A) Within sixty (60) days /aftera close of the first full billing month following the
Effective Date and each month theduring the term of this Franchise Agreement, the
Company, its successors, or assignpay to the City or its successors a sum of money
equal to six percent (6%) of the ComGross Revenue.
Each monthly franchise fe payment shall be accompanied by a statement clearly
showing the Gross Revenues oJVhe Company, certified by a representative of the Company
having the requisite knowledg#Fto produce such a statement.
(B) In the event the Co any enters into a franchise agreement with another municipalityror
governmental entity loc d, within the State o
Florida, the terms of which provide for tM
payment of franchise f s by Company at a ra
a greater than six (6.0%) percent of Gars„
Revenue under the me terms and condition
as specified in Section 11(A), Compaia�l;e"upc
written request of City, shall negotiate and
enter into a new franchise agreement With the t
City in which the ercentage to be used in cal
e ,.
ulating monthly payments under Sections `I(pv
hereof shall be o greater than that percentag
which Company has agreed to use aj-: basisz
for the c ilcul Ion of payments to any such Ot
er Governmental Entity.
S tion 12: IDENTIFICATION OF CIT
RESIDENTS r—
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o less than thirty (30) days prior to th
Effective Date, the City shall deliver to the
Co any such information (including City limi
streets and block numbers) as is needed by the
C pany to determine which of its customer,
re located within the City's limits. The City shall
so provide such information no less than thi
y (30) days prior to the effectiveness of any
change in said limits, whether by addition, an
xation, or consolidation, or upon the Company's
request. The Company shall be relieved of a
y obligation to pay franchise fees to the extent
the City has failed to provide information in ac
ordance with this Section.
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City of Miami P+e 5 of 8 File ID: 14247 (Revision:) Printed on: 81112023
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Section 13: ACCOUNTS AND RECORDS
The Company shall maintain accounting, maintenance, and construction 1
prescribed by the FPSC. The Company shall establish and maintain appropriate
records in such detail that revenues within the corporate limits of the City are co
declared separately from all other revenues and such records shall be maintai c
State of Florida ("State").
Section 14: AUDIT AND INSPECTION
as
and
within the
The City may, upon reasonable notice and not during another cheduled Company
franchise audit, at the City's expense, examine the records of the any relating to the
calculation of the franchise payment for the year preceding such nivemprsary date. Such
examination shall be during normal business h/accordance
e Com ny's office where such records
are maintained. Records not prepared by the Cin th ordinary course of business may
be provided at the City's expense and as the Cie mpany may agree in writing.
Information identifying the Company's customem or their consumption shall not be
taken from the Company's premises. Such audimpartial and all audit findings,
whether they decrease or increase payment to shall be reported to the Company. The
City's right to examine the records of the Compccordance with this Section shall not be
conducted by any third party employed by the e fee, in whole or part, for conducting
such audit is contingent on findings of the audit
The City will maintain the confidenti y of the Company's confidential documents. The
City will be given access to confidential d uments while on the Company's premises but shall
not remove those confidenti/could
from the Company's premises unless expressly
authorized to do so by the Crmation relative to this audit and likely to be deemed
confidential by the Company is not limited to, nonpublic customer or customer
account information, nonpubd procedures, and any other nonpublic informatiol
that gives the disclosure of rm the competitive position of the CompanAy3Section 15: INSURA'''
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During the term this Franchise, the Company shall keep in full force and eft at
times during the effect a period hereof insurance certificates in accordance to Exhitit'�="A". e
coverage requireme s set forth in this Section may be satisfied, in whole or in part,:Wpl" self-
insurance. r-
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The Co pany shall give notice to the City of any material alteration, modificatibh, or any
cancellation a policy.
he time of its acceptance of the terms and conditions of this Ordinance as provided
herein a Company shall file with the City Clerk, after approval by the City Attorney, an annual
bon the minimum sum of $500,000.00 having as surety thereon a surety company qualified
to business in the State, acceptable to the City, and conditioned for the full and faithful
p rformance by the Company of all requirements, duties, and obligations imposed upon it by the
rovisions of this Ordinance. Such bond shall be furnished annually and shall provide a
continuing guarantee of such full and faithful performance at all times throughout the effective
period hereof.
Section 16: INDEMNIFICATION
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City of Miami Page 6 of 8 File ID: 14247 (Revision:) Printed on: 8/1/2023
File ID: 14247 Enactment Number: 14195
The City shall in no way be liable or responsible for any /tnde
nt or damage th may o
occur in the construction, operation, or maintenance by the Comof its facilities W
Distribution System hereunder, regardless of other easement aents that ma a or have
been executed by the parties to this Franchise without hold harand indem (cation
provisions and the acceptance of this Ordinance shall be deemagreeme on the part of
the Company to indemnify and defend the City and hold the Citfficials, mployees, and
assigns harmless against any and all liability, loss, cost, damaggmen decree, action,
cause of action, claim, or expense which may accrue to the Citye a nt caused by the
Company's installation, removal, relocation, sub -lease, construcop ation, or maintenance co
of its facilities or Distribution System that results in personal injuof life, or damage, loss,
or destruction of or damage to property sustained by any persotity. N
Section 17: TERMINATION BY CITY
(A) Violation by the Company of any of th covenants, terms, and conditions
hereof, or default by the Company in observing r carrying into effect any of said
covenants, terms, and conditions shall author' a and empower the City to declare a
termination of this Franchise Agreement; pr ided, however, that before such action
n by the City shall become operative Mite' ctive, the Company shall have been
"--served by the City with a written notice ting forth all matters pertinent to such
.. .
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s--- violation or default describing the acti of the City with respect thereto and the
a_ompany shall have had a period of ixty (60) days after such notice, or, in the event
"a ch cure reasonably requires a iod of more than sixty60 days, sixty(60 days
N .'cam Y q P( ) Y) Y
1 -le present a plan, reasonably sa ' factory to the City, to effect such cure; and
c.sovided further that any violat' or default resulting from a strike, a lockout, an act
�;o God, or any other cause b and the control of the Company shall not constitute
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It is understood that no odification, amendment, or alteration in the terms or conditions
contained herein shall bee ctive unless contained in a written document executed with the
same formality and of eq I dignity herewith and approved by the City Commission after a
public meeting.
(A) If section, part of a section, paragraph, sentence, or clause of this Ordinance
shall be adjudg by a court of competent jurisdiction to be invalid, such decision shall not affect
the validity of y other portion hereof but shall be restricted and limited in its operation and
effect to that pecific portion hereof involved in the controversy in which such decision shall
have bee endered; provided, however, that should elimination of the specific portion of the
Franchi Agreement adjudged to be invalid results in significant adverse consequences to a
party, fen that party may terminate this Franchise Agreement by providing thirty (30) days
writt9d notice to the other party.
(B) Upon the issuance by a court of competent jurisdiction of an order, ruling, or
ecision 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
City of Miami Page 7 of 8 File ID: 14247 (Revision:) Printed on: 8/1/2023
File ID: 14247 Enactment Number: 14195
away with the ability of a municipality to grant a franchise altogether, then the Company or the
City may terminate this Franchise Agreement by providing ninety (90) days written no ice to the
other party.
Section 20: GOVERNING LAW; VENUE: ATTORNEYS' FEES LU
This Franchise Agreement shall be governed by the laws of the Stat nd applicable
federal law. The parties agree that venue in all actions, claims, or procee gs shall lie in
courts of competent jurisdiction in Miami -Dade County, Florida. Each pa shall bear its own
respective attorneys' fees. N
Section 21: COMPLIANCE WITH LAWS
The Company hereby acknowledges and agrees that t Company's compliance with all N
applicable Federal, State, and local laws, ordinances, codes, les, and regulations is a
condition of this Franchise Agreement.
Section 22: EFFECTIVE DATE
This Ordinance and the Franchise Agreeme shall become effective upon its
acceptance by the Company, which acceptance Ant be evidenced in writing within forty-five
(45) days of the City's passage and adoption h of.' For avoidance of doubt, the Effective Date
is the day of 12023.
APPROVED AS TO FORM AND CORREOTNESS:
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I This Ordinance shall become effective as specified herein unless vetoed by the Mayor within ten (10)
days from the date it was passed and adopted. If the Mayor vetoes this Ordinance, it shall become
effective immediately upon override of the veto by the City Commission or upon the effective date stated
herein, whichever is later.
City of Miami Page 8 of 8 File ID: 14247 (Revision:) Printed on: 811/2023