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UTILITY - GAS (4) I J ORDINANCE NO. 90-1t! AN ORDINANCE GRANTING TO THE CITY OF CLEARWATER, FLORIDA, A MUNICIPAL CORPORATION OF THE COUNTY OF PINELLAS AND THE STATE OF FLORIDA, ITS SUCCESSORS AND ASSIGNS, A FRANCHISE FOR THE PURPOSE OF FURNISHING GAS WITHIN THE CITY OF DUNEDIN, FLORIDA, AND TO ITS INHABITANTS: PRESCRIBING THE LIMITATIONS, TERMS AND CONDITIONS OF SAID FRANCHISE; AND PROVIDING FOR THE EFFECTIVE DATE HEREOF. BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF DUNEDIN, FLORIDA, IN SESSION DULY AND REGULARLY ASSEMBLED: Section 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 meaning: (a) "Grantee" shall mean the City of Clearwater, a Florida municipal corporation, in its present incorporated form, or as it may subsequently be reorganized, or reincorporated to which the franchise is granted by this ordinance. '. (b) "Grantor" shall mean the City of Dunedin, 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 streets, lanes, alleys, courts, bridges (exc 1 uding the area above 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 Dunedin, 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. OFFICE OF THE CITY ATTORNEY City 01 DunedIn 750 Milwaukee Avenue Dunedin. Florida 34698 (d) The word commingled "Gas" shall gas and/or mean natural gas and/or manufactured gas which is 1 1 I distributed in pipes. It shall not mean bottle gas or any other fuel. (e) The word "Facilities or equipment" shall mean pipe, pipeline, 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. 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 Grantor's 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 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 of 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, pursuant to Section 27-12-5-5 and Section 27-4-10 of the Code of Ordinances of the City of Dunedin as they now exist or may be amended in the future, from the Grantor as to any proposed route, design or location of proposed facilities prior to OFFICE OF THE CITY ATTORNEY CUy of Dunedin 750 Milwaukee Avenue Dunedin. Florida 34698 2 '. OFFICE OF THE CITY ATTORNEY City 01 Dunedin 750 Milwaukee Avenue Dunedin, Florida 34698 ~l 1 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 mains 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. Should the Grantee sell its facilities to any other person, firm or corporation during the life of this franchise, the Grantor may, at its option, cancel this franchise unless it shall have given its 'written consent to such purchase or transfer. The Grantor shall have the right to give or withhold its consent within its sole discretion and shall the absolute right to renegotiate this franchise, in whole or in part, as it deems appropriate and necessary to protect the public interest. In the event that the Grantor and the new owner of the facility shall be unable to negotiate a satisfactory franchise agreement, the Grantor may cancel and terminate this Franchise Agreement and such termination shall act as an expiration of this franchise in accordance with the terms of Section 12 of this Agreement. 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 the Grantee, 3 I I 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 and shall supply such current map on or before the yearly anniversary of this franchise. Section 3. The franchise, rights and privileges hereby granted shall continue and be in force for the period of thirty (30) years from the date the franchise granted herein becomes effective, to wit: May 1, 1990. Section 4. The Grantee shall furnish twenty-four (24) hours of continuous daily service to each person within Grantor desiring such service. Failure of Grantee to furnish gas to any such person for any cause within its control for a period of twenty-four (24) hours shall act as a material default of this franchise at the option of the Grantor. Grantee may fail to furnish gas to any such person for any cause within its control '. for a period of up to seventy-two (72) hours if Grantee has previously consulted with the affected customer regarding the extended time period and has Dade provision for the furnishing of an alternative energy source when such it reasonably 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 Dunedin will be expanded to provide service to new customers on the terms and conditions OFFICE OF THE CITY ATlORNEY City 01 DunedIn 750 Milwaukee Avenue Dunedin. Florida 34698 hereinafter set forth. the Grantee's failure to expand its 4 '. OFFICE OF THE CITY AnoRNEY City 01 DunedIn 750 Milwaukee A....nue Dunedin. fIorida 34698 I I facilities and services to its customers within the City of Dunedin 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, but as a minimum shall be as follows: .37 (EAR) - .05 (Const. Cost) (Construction Cost) (100) = 20.0% = 5 years In the event that the system-wide formula provides for a formula longer than five (5) years, that longer period shall be used. B. The Grantee shall invest not less than 10% of its capital investment development funds on the system within the boundaries of the City of Dunedin providing that the Dunedin market provides enough customers to economically justify such expansion. The standard used to evaluate such capital expenditures will be no less generous than that employed in the City of Clearwater or elsewhere in the system. C. The Grantee shall implement and shall continue an aggressive marketing program to promote the use of natural gas and expand the customer base within the Dunedin service area. Such marketing plan shall include at least the following elements: 5 . OFFICE OF THE CITY ATTORNEY Cily of Dunedin 750 Milwaukee Avenue Dunedin. FIoOda 34698 I 1 i. Direct mail and door-to-door informational solicitation, ii. The offering of free water heaters or other incentives along existing gas lines to increase new hook-ups, iii. Solicitation of potential customers through the use of direct mail, door hangers and other information reflecting energy saving opportunities, iv. The utilization of messages and inserts in utility bills, increase advertising in local newspapers and on cable television outlets. The expansion of the use of natural gas within the Dunedin service area in accordance with the above standards shall be deemed to be a material element of this Franchise. Section 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, repave or relay, as promptly as possible, all streets, lanes, alleys, sidewalks, squares, grassed areas, or public places dug or disturbed by Grantee for any reason unless there is an alternative schedule of repair previously approved by Grantor. Grantee shall repair and restore such 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 6 I I 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 drawings 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 therefor 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. In the event that the relocation of Grantee's property is subsequently required by Grantor because of its need to use utilities, easements, rights-of-way, or other public places, or for any reason, the Grantee shall pay for the relocation of all installations or facilities contained in such rights-of-way or OFFICE OF I HE CITY ATTORNEY Cily of DunedIn 150 MllwlIukee Avenue c)unedin, Florida 34698 easements. Should, in connection with the doing of any public 7 I I improvement or other exercise of the powers of Grantor, it become necessary or desirable to relocate installed facilities of the Grantee, then the Grantee covenants and agrees to promptly, at its expense, relocate said facilities. Should it become necessary in the installation of gas lines or facilities to relocate water or sewer lines of Grantor, or to otherwise modify the location, design or other attributes or characteristics of any infrastructure of Grantor, now or hereinafter installed, then such work shall be done at the expense of the Grantee and not the Grantor. It is understood that in all instances the facilities of Grantor shall have the right-of-way and preference over that of the Grantee herein. Section 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 costs which may arise or acc=ue to Grantor from injury to persons or property caused by the carelessness or neglect in the execution or conduct of the work hereinunder 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 sidewalks or other public places now in force or hereinafter enacted. In no event shall Grantor, its OFFICE OF rHE CITY ATlOANEY City of DunedIn 'so Milwaukee Avenue Junedin. F10nda 34698 8 'i1 OFFICE OF THE CITY AnoRNEV City of DunedIn 750 ...ilwau.... Avenue Dunedin, Flonda 34698 I I employees or agents, be construed as the agent of the Grantee or its employees or agents. Section 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 therefor, provided, however, that in no case shall the charge therefor exceed the applicable rates for the same services then being charged Grantee's customers 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 11 of this Agreement. Section 8. Grantor hereby reserves the right at and after expiration of this grant of franchise to purchase the property of Grantee used under this grant and as a condition precedent to the taking effect of this grant, Grantee shall give and grant to the Grantor the right to purchase so reserved. Grantee shall be deemed to have given and granted such right of purchase by its acceptance hereof, which shall be filed with the Grantor's City Clerk within thirty (30) days after the effective date of this franchise. 9 I I Section 9. Upon the termination of this franchise, in the event the said Grantor should not exercise its option to purchase the said equipment, the said Grantee, its successors or assigns shall, at the Grantor's option, remove the said equipment after ninety (90) days and shall, in removing the same, repair all streets, alleys, avenues, sidewalks, rights-of- way, utilities, easement and other public places incident to removal, and replace the same in the same condition as theretofore existed. Removal shall be completed within one (1) year from franchise expiration and termination of all services. Upon expiration of the franchise, Grantee agrees to continue operation at the option of the Grantor up to one (1) year and pay the same franchise fees as were in existence for the last period of the franchise. Section 10. 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 OFFICE OF THE CITY ATTORNEY City 01 Dunedin 750 Milwaukee Avenue Dunedin. FIonda 34698 any bill rendered for such service or to discontinue service for 10 I I 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 11. In consideration for the granting of this franchise and the use of the rights-of-way, easements and other public places allowed hereunder, the Grantee shall pay to the Grantor five percent (5%) of the gross receipt from the sale of gas within the corporate limits of Grantor for the term of this franchise or as otherwise established by subsequent ordinance of the City Commission. Such. amended franchise. fee shall be implemented to by the Grantee no later than thirty (30) days from the date of the delivery of written notification to the Grantee of such franchise fee change, said written notice to be ... accompanied by a copy of the adopted ordinance. shall be made on a quarterly basis. Grantee shall be required to keep proper books of account Such payment 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 OFFICE OF THE CITY ATTORNEY Clly of DunedIn 750 Milwaukee Avenue Dunedin. Florida 34698 11 . OFFICE OF fHE CITY ATTORNEY City of DunedIn 7SO Milwaukee Avenue Junedin. Florida 34698 I I include the gross receipts of such customers in the franchise fee payments. Section 12. Upon expiration of this franchise, said franchise shall automatically be renewed on a day-to-day basis until such time as the Grantor refuses renewal. 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, unless the option to purchase such equipment has been exercised by the Grantor. 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 13. As a further consideration of this franchise, Grantor agrees not to 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 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 Commission of the City of Dunedin not in conflict with the terms 12 , , , ~ I of said franchise, a certified copy thereof to be delivered to the City Clerk of the City of Dunedin. Upon the receipt of a certified copy of the resolution aforesaid, this ordinance and the franchise therein provided shall become effective for all purposes therein provided for, as of May 1, 1990. Section 13. That all ordinances or parts of ordinances in conflict with the provisions of this ordinance be and the same are hereby repealed. I f any section or sections of this ordinance are declared invalid for any reason, such invalidity shall not affect the remaining sections thereof. The parties further acknowledge that each term and provision of this ordinance is material to the franchise, and defaul t in the performance of any such, provision shall be grounds for the termination of this franchise. Section 14. This ordinance shall become effective immediately upon final passage and adoption. PASSED AND ADOPTED BY THE CITY OF DUNEDIN, FLORIDA, this . ~,' -:!, day of ,Tu ,0'c OFFICE OF THE CITY ATlORNEV CUv 01 Dunod.n 1SO Milwaukee Avenue Junedin. Florida 34698 ,I . ATTEST~ , ,./, V ',,' .' "'-L ~'- , "f'~ 'L..f\.. /1 l..~ ."f f ~":",,,--,,"'-1"L.."--C <- City Clerk PASSED ON FIRST READING: -X' G PASSED ON SECOND READING: /q .' 1-<, ;; {. /7''1' () . ..0C. /'jy{ 13