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NATURAL GAS SERVICES ORDINANCE 03-14 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BELLEAIR BEACH, FLORIDA GRANTING TO THE CITY OF CLEARWATER, FLORIDA A FRANCHISE FOR THE PURPOSE OF FURNISHING NATURAL GAS SERVICES WITHIN THE CORPORATE LIMITS OF THE CITY OF BELLEAIR BEACH; PROVIDING FOR DEFINITIONS, PROVIDING FOR NON-EXCLUSIVE FRANCHISE; PROVIDING FOR TERM OF THE FRANCHISE; PROVIDING FOR SUFFICIENT GAS SUPPLIES; PROVIDING FOR CONSIDERATION; PROVIDING FOR INSTALLATION OF GAS LINE SYSTEMS; PROVIDING FOR SOLICITATION; PROVIDING FOR INDEMNIFICATION; PROVIDING FOR PRICING GAS SERVICE; PROVIDING FOR COMPLIANCE WITH GRANTOR'S ORDINANCES; PROVDING FOR FRANCHISE FEE; PROVIDING FOR RECORDS MAINTENANCE; PROVIDING FOR FAVORED NATIONS PROVISION; PROVIDING FOR NON-COMPETE BY GRANTOR; PROVIDING FOR ASSIGNMENT OF INTEREST; PROVIDING FOR RESOLUTION BY GRANTEE; PROVIDING FOR SEVERABILITY AND PROVIDING FOR AN EFFECTIVE DATE. THE CITY OF BELLEAIR BEACH, FLORIDA, HEREBY ORDAINS as follows: Section 1. Definitions. 1. Whenever in this ordinance the words or phrases hereafter in this section defined are used, they shall have the respective meanings assigned to them in the following definitions, unless in the given instance, the context wherein they are used shall clearly import a different meanmg: (a) "Grantee" shall mean the City of Clearwater, a Florida municipal corporation, in its present incorporated form, or as it may subsequently be reorganized, expanded by annexation, consolidated or reincorporated. (b) "Grantor" shall mean the City of Belleair Beach, a Florida municipal corporation, in its present incorporated form, or as it may subsequently be reorganized, expanded by annexation, consolidated or reincorporated. (c) The word "Street" shall mean the public street, lanes, alleys, courts, bridges (excluding the area above the deck of said bridges), or other public places in the Grantor's corporate limits as they now exist, or as they may be established at any time during the term of this franchise in the City of Belleair Beach, together with rights-of- way or easements for street or utility purposes; the rights in said streets being subject to the ordinances presently controlling right-of-way and easements within the City as such ordinances now exist or may be amended in the future. (d) The word "Gas" shall mean natural gas and/or commingled gas and/or manufactured gas, which is distributed in pipes. It shall not mean bottle gas or any other fuel. (e) The word "facilities or equipment" shall mean pipe, pipe-line, tube, main, service, trap, vent, vault, manhole, meter, gauge, regulator, valve conduit, appliance attachment, appurtenances, and any other personal property located or to be located in, upon, along, across, under or over the Grantor's streets used or useful in the distribution of gas. Section 2. Non-Exclusive Grant of Franchise,. providing maps, meeting with Council 2. That the Grantee is hereby granted a non-exclusive franchise, privilege, and concession to furnish gas within Grantor's municipal limits, together with the right to use Grantors' streets, avenues, alleys, squares, bridges, viaducts, utility easements, public rights-of-ways and other easements for the purpose of laying and maintaining pipes and/or such other apparatus necessary to supply gas or provide back-up gas supply or services, to Grantor's inhabitants, and to do all things reasonably necessary to supply gas to its customers, not otherwise in conflict with any of the terms and conditions of this franchise or ordinances or Grantor. Grantee shall locate all facilities and equipment so that such will not interfere with Grantor's use of its streets and its utilities, and shall not cause a hazard to the public health, safety, welfare, and aesthetics of Grantor, or inconvenience any of the property owners contiguous thereto. The Grantee shall obtain written approval in the form of a utility permit from the Grantor as to any proposed route, design or location of proposed facilities prior to installation. Grantee may do things necessary for the purpose of supplying gas within the said City and to its inhabitants, provided that the same shall not be in conflict with any of the terms and conditions of this franchise or reasonable ordinances, policies or directions of Grantor, and provided that the remains installed and used for the purpose of supplying said gas shall be laid in the manner provided in this franchise and in accordance with the utility construction permits issued by Grantor. At the execution of the within franchise, the Grantee shall furnish to the Grantor a current and accurate map showing in detail the location of each gas facility owned by Grantee, and thereafter shall keep such map in current condition with information provided not less often than annually to show changes and shall update such map not less frequently than annually to show changes and shall supply such current map on or before the yearly anniversary of this franchise. Grantee shall have the opportunity to be heard by Belleair Beach's City Council at a duly convened meeting of the Council prior to any action being taken by Grantor that will inhibit or adversely affect the Grantee's rights, obligations or performance hereunder. Section 3. Term of Franchise 3. The franchise, rights and privileges hereby granted shall continue and be in force for the period of fifteen (15) years retroactive to August 12,2003. If Grantee desires to renew this franchise for an addition fifteen (15) year period, Grantee shall provide to Grantor with a written notice at least 180 days, but no more than 365 days, prior to the termination of the initial term of this franchise. If Grantor agrees with the franchise renewal for an additional fifteen (15) year period, Grantor shall provide Grantee with a written notice within ninety (90) 2 days of the receipt of the Grantee's notice. Failure on the part of the Grantor to provide Grantee with a notice for renewal shall constitute a denial of the Grantee's request and this franchise shall then expire at the end of the initial term, subject however to a cure period as set forth in Section 8 of this franchise. Section 4. Maintaining Gas Supply and Solicitation of Services. 4. This franchise is granted upon condition that the Grantee agrees to maintain a supply of sufficient quantities of gas to meet the needs and requirements of its customers in the City. The quality of gas shall at a minimum meet the standards set for it by the Public Service Commission. In the event by act of God, strike, riot, public enemy or other calamity, or restriction in the supply of gas beyond the control of Grantee or its interstate supplier or by reason of the regulation exerted by Florida Public Service Commission of the Federal Energy Regulatory Commission or other regulatory body having jurisdiction in the premises, the supply of gas should be interrupted, the Grantee shall, nevertheless, continue to supply the available gas to such customers as it is possible, and shall employ its full services to remedy such deficiency of gas supply, and shall resume complete gas service when that is possible. In consideration of the rights granted under this franchise and the duration of this franchise, the Grantee agrees that its facilities within the City of Belleair Beach will be expanded to provide service to new customers on the terms and conditions hereinafter set forth. The Grantee's failure to expand its facilities and services to its customers within the City of Belleair Beach shall be deemed to be a material breach of this Agreement. Such expansion shall occur on the following terms and conditions, to wit: (a). Gas service shall be extended to customers desiring said service based on a feasibility formula. Such formula shall be the formula currently in effect system-wide as then administered by the Grantee, and as applicable to the citizens of Clearwater and other franchise areas. (b) The Grantee shall implement and shall continue all aspects of its marketing and sales programs to promote the use of natural gas and expand the customer base within the Belleair Beach service area. Such marketing and sales plan shall include at least the following elements: (1) Periodic direct mail and door-to-door informational solicitation, (2) The offering of free water heaters or other incentives along existing gas lines to increase new hook-ups, (3) Solicitation of potential customers through the use of direct mail, door hangers and other information reflecting energy saving opportunities, (4) The utilization of messages and inserts in utility bills, increased advertising in local newspapers and on cable television outlets. The expansion of the use of natural gas within the Belleair Beach service area in accordance with the above standards shall be deemed to be a material element of this franchise. 3 Section 5. Installation of Equipment. 5. The Grantee shall install the necessary facilities or equipment at its own cost and expense and the same shall be and remain the property of the Grantee. All mains and pipelines shall be laid underground. Grantee shall restore, replace or relay, as promptly as possible, all streets, lanes, alleys, sidewalks, rights-of way, easements and other public places to their former and safe condition and with the same quantity and quality of material, or its equivalent, as was existing prior to the commencement of such work. In all cases, the repair work shall be made passable to traffic during conduct of such work as soon as is physically possible. Any traffic disruption shall be coordinated with the police department of Grantor. Grantee shall obtain a permit from Grantor, without charge, prior to the construction or installation of any facilities or equipment, and supply Grantor with updated as-built atlas sheets, and drawing of all such facilities or equipment. Grantor shall issue such permit within forty-eight (48) hours or such longer time as is reasonable under the circumstances from application therefore by Grantee. Should Grantee neglect or refuse to restore or repair without delay after completion of installation and after ten (10) calendar days written notice to Grantee, any streets, alleys, lanes, squares, sidewalks, rights-of-way, easements or other public places which may have been excavated, dug or disturbed by it, then the Grantor may have such repairs and restoration done, and the expenses incident thereto shall be paid by the Grantee. Grantee shall secure and otherwise make safe the secured area so excavated, dug or disturbed by it and shall hold Grantor harmless from any loss or damages arising from injury to persons or property in such area. Whenever, by reason of establishing a grade or by reason of changes in the grade of any street, or by reason of widening, grading, paving or otherwise improving present or future streets or highways or in the location or manner of construction of any water pipes, electric conduits, sewers, or other underground structure, it shall be deemed necessary by the Grantor, to alter, change, adapt, or conform the mains, pipelines, service pipe, or other apparatus or appurtenances of the Grantee hereto, such alterations, or changes, shall be made by the Grantee as ordered in writing by the Grantor, without claim for reimbursement or compensation for damages against the Grantor. If the Grantor shall require the Grantee to adapt or conform its pipelines, pipes, structures, or apparatus, appurtenances or other appliances, or in any way to alter, relocate or change it's property to enable any other person or corporation except the Grantor and any other agency exercising powers and duties of the Grantor, Pinellas County or the State of Florida to use said street or highway, the Grantee shall be reimbursed by the person or corporation desiring or occasioning such change, alteration or relocation of Grantee's property. The Grantee further agrees that it shall not interfere with, change, or injure any water pipes, drains or sewers of the Grantor unless it has received specific permission from the Grantor. Section 6. Indemnification 6. Nothing herein contained shall be so construed as to render the Grantor anywise liable for any act or omission or commission of said Grantee, its officers, agents or employees, in the execution or conduct of the work herein authorized. Grantee shall at all times indemnify and save Grantor harmless against all damages, judgments, decrees and cost which may arise or accrue to Grantor from injury to persons or property caused by negligence in the execution or conduct of work herein under authorized or by the failure of Grantee, its officers, agents, or employees, to comply with any reasonable ordinance, rule or regulation relative to streets and 4 sidewalks or other public places now in force or hereinafter enacted. In no event shall Grantor, its employees or agents, be construed as the agent of the Grantee or its employees or agents. Section 7. Quality of Gas Service. . 7. The gas to be furnished by Grantee, its successors and assigns shall in no case be of less quality than 1000 British Thermal Units per cubic foot, and shall be conducted through the pipes at a pressure sufficient to insure satisfactory operation. The Grantee shall have the privilege and option of charging reasonable prices therefore, provided, however, that in no case shall the charge therefore exceed the applicable rates for the same services than being charged Grantee's customer in the City of Clearwater, Florida. The Grantee shall have the further right and privilege of collecting reasonable service charges and/or connection fees, provided, however, such charges and fees are no greater than for similar services, charges and fees in the City of Clearwater, Florida, except that they shall additionally include the franchise fees as shown in Section 10 of this agreement. Section 8. Expiration and Renewal. 8. Upon expiration of this franchise, said franchise shall automatically be renewed on a month- to-month basis, up to one (I) year and Grantee shall pay the same franchise fees as were in existence for the last period of the franchise until such time as the Grantor refuses renewal in wwriting. Upon notification of non-renewal, the Grantee shall, after thirty (30) days, have the right, privilege and option of removing all franchise piping and equipment. In the event of the removal of such equipment, the Grantee shall repair all of the Grantor's property to the same condition as theretofore existed. Section 9. Compliance with Ordinances of Grantor 9. The Grantee, its successors or assigns, shall at all times comply with all reasonable ordinances, rules and regulations enacted or passed by Grantor, and the provisions of this franchise shall be modified accordingly. The Grantee shall have the right to make, establish and maintain and enforce such reasonable regulations for the operation of its distributing system as may be reasonably necessary and proper, not inconsistent with the terms of this franchise and the ordinances of the Grantor, and to protect itself from fraud or imposition and may, in its discretion, refuse to furnish gas and to cut off the supply from any customer or customers who are in default of any bill rendered for such service or to discontinue service for other reasonable grounds, according to the same procedure as Grantee provides for its own consumers in the City of Clearwater. Grantee agrees that all documents relating to this franchise shall be and remain public records. Grantee agrees to furnish Grantor a list of all franchise customers upon demand. Section 10. Franchise Fees and Maintenance of Records. 10. In consideration for the granting of this franchise and the use of the rights-of-way, easements and other public places allowed hereunder, and effective the first day of the month after approval by Belleair Beach of this Agreement, Belleair Beach shall be entitled to receive from Clearwater a franchise fee which will equal six percent (6%) of the gross receipts from the 5 sale of gas within the corporate limits of Grantor for the term of this franchise. Such payment shall be made on a quarterly basis. Grantee shall be required to keep proper books of account showing monthly gross receipts from the sale of gas within the corporate limits of Grantor, and shall make a statement in writing showing such receipts for each such quarterly period of this franchise, and based upon such statement shall make payment to Grantor for the amount due. In the event that Grantor shall annex a customer of Grantee during this franchise, Grantor shall notify Grantee of such annexation. Grantee shall immediately include the gross receipts of such customers in the franchise fee payments. Section 11. Favored Nations Provision 11. In the event Clearwater shall hereafter accept a franchise from any other governmental entity with any provision more favorable to the governmental entity than contained in this franchise where all other conditions of the two franchises are substantially similar, then Clearwater shall notify Belleair Beach and Clearwater shall be obligated upon written request of Belleair Beach to agree to an amendment to this Ordinance to incorporate said provision. To the extent that any federal or state statute, regulation, or other law is enacted, adopted, repealed, amended, modified, changed or interpreted in any way during the term of this Agreement so as to enhance Belleair Beach's' ability to regulate Clearwater and the Gas system, or allow Belleair Beach to increase the franchise fee, Belleair Beach and Clearwater shall negotiate in good faith, modifications to this franchise to reflect such enactment, adoption, repeal, amendment, modification, change or interpretation. Section 12. Non-Compete Provision 12. As further consideration of this franchise, Grantor agrees not the engage in the business of distributing and selling gas during the life of this franchise or any extension thereof in competition with the Grantee, its successors and assigns. Section 13. Assignment of Interest by Grantee 13. In the event that the Grantee should assign, sell or transfer its gas services to any other entity, public or private, during the term of this franchise or any renewal thereof, then in such event, the Grantor shall have the exclusive right to accept the assignment of interest or to terminate the franchise granted herein upon giving the Grantee timely written notice to the Grantee of the intent to terminate. Section 14. Resolution by Grantee 14. The franchise granted herein shall not become effective in whole or in part until the Grantee shall, by resolution duly passed and adopted by its Commission, accept the franchise, privileges and concession herein granted and in said resolution, agree to comply with the terms and conditions of the said franchise and said resolution to contain an agreement to comply with all reasonable ordinances passed by the City Council of the City of Belleair Beach not in conflict with the terms of said franchise, a certified copy thereof to be delivered to the City Clerk of the City of Belleair Beach. Upon the receipt of a certified copy of the 6 resolution aforesaid, this ordinance and the franchise therein provided shall become effective for all purposes therein provided for as of August 12, 2003. Section 15. Severability. 15. It is declared to be the intent of the City of Belleair Beach, Florida, that if any section, subsection, clause or provision of this ordinance is held invalid, or unconstitutional by any court of competent jurisdiction, the remainder of the ordinance shall be construed as not having contained said section, subsection, sentence, clause or provision and shall not be affected by such holding. Section 16. Effective Date. 16. This ordinance shall take effect and be in force ten (10) days from and after approval of the same by the City Council of the City of Belleair Beach. The above and foregoing Ordinance was read by title only and passed by a majority vote upon its first reading at a regular mAeting of e City Council of the City of Belleair Beach, Florida, held on the I '1 J;tAay of UM.. , 2003 _ . .' ;7 /" -_._--_._.._._---_.~ Bert Cutler, Presiding Officer ATTEST ~.A .~~ t r!4JUu. ~ N - Y Me -linin, .. MC, City Clerk The above and foregoing Ordinance was read by title and was passed by a majority vote upon its second and fmal reading at the regular rr;(jting of the City Council of the City of Belleair Beach, Florida, held on the :ici.J day of 1 ~~003. I APPROYED ~~~ Bert Cutler, Presiding Officer ATTEST \4UcltJ,u~ L d.aUu~ N cy Mc llum, MC, CIty Clerk ~. -"" 03-14/7 -1O-03/rRevised 7-17 -03/Revised 8-19-03/P 1M 7