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HomeMy WebLinkAbout695-98 Public Gas Franchise I 10111 11111 11111 11111 11111 1011 11111 11111 iiii till 98081574 • Rcpt: 251851 Rec: 37.50 DS: 0.00 IT: 0.00 ORDINANCE NO.: 6 9 5 07/08/98 Dpty Clerk AN ORDINANCE OF THE CITY COUNCIL OF THE r�v� CITY OF ZEPHYRHILLS, FLORIDA, GRANTING :COS w MI TO PEOPLES .GAS SYSTEM, A DIVISION OF r . TAMPA ELECTRIC COMPANY, ITS SUCCESSORS Ver. AND ASSIGNS, A NON-EXCLUSIVE GAS 101Tx FRANCHISE, AND IMPOSING PROVISIONS AND11111:7,gu N o CONDITIONS RELATING THERETO; AND j PROVIDING AN EFFECTIVE DATE. ;c o c °°x NOW THEREFORE, be it ordained by the City Council of the City of 1011-4 11.1 p Zephyrhills, Florida, sitting in regular session, as follows: 01 SECTION 1: Definitions: For the purposes of this Ordinance,the following terms, phrases, words, and their derivations shall have the meaning given herein. When not inconsistent with the context, words in the present tense include the future, words in the plural number include the singular number, and words in the singular number include the plural number. The word "shall" is always mandatory and not merely directory. (a) "Grantor"-The City of Zephyrhills,Florida. (b) "Grantee"-Peoples Gas System, a Division of Tampa Electric Company, its successors and assigns. (c) "Gas.TJtiiity System"-A system installed and operated in the franchise area in accordance with the applicable provisions of the Public Service Commission establishing technical standards, service areas,tariffs and operating standards, which shall include but not be limited to; the erection, installation, extension, maintenance and operation of a system of works, pipes, pipelines and all necessary apparatuses, machinery, structures and appurtenances for the distribution of gas. (d) "Gas"-Any natural,manufactured,propane/air mixed and/or commingled gas which is capable of being distributed through pipes to customers. (e) "Franchise Area"-That area for which Grantee provides gas services, for the purpose of transporting, distributing, and selling natural gas, manufactured gas, propane/air mixed gas and/or commingled gas which is distributed through pipes within the corporate city limits of the Grantor. (f) "Gross Revenues"-Revenues from the sale of gas, net of customers credits, and calculated in accordance with the municipal public tax authorized by Section 111 166.231,Florida Statutes,to residential, commercial, and industrial customers all within the corporate limits of the City. (g) "Right-of-Ways"-All of the public streets, alleys, highways, waterways, bridges, easements, sidewalks and parks of the City, as they now exist or may be hereafter constructed, opened, laid out or extended within the present limits of the City, 4 Record and Return to: City Clerk's Office 5335 8th Street Zephyrhills, FL 33540 OR BK 39e5 PG .1G.17 . 2 of or in such territory as may hereafter be added to, consolidated or annexed to the City. SECTION 2: Grant: There is hereby granted to PEOPLES GAS SYSTEM, A DIVISION OF TAMPA ELECTRIC COMPANY, its successors and assigns a non-exclusive right to erect,install, extended, maintain, and operate a system of works, pipes, pipelines, and all necessary apparatus, machinery, structures, and appurtenances in, on, and under the streets, alleys, avenues, easements, and other public ways and places in the City of Zephyrhills, Pasco County, Florida, as its now constituted and as it may hereafter be added to or extended, for the purpose of transporting, distributing, and selling natural gas, manufactured gas, propane/air mixed gas and/or commingled gas which is distributed through pipes to said City, its inhabitants, and the public generally for domestic, commercial, and industrial uses, and for any and all other purposes for which gas, during the period of this grant, may be used with the right to enter upon the streets, alleys, avenues, easements and other public ways, places, and grounds of said City for the purpose of removing and repairing said works, pipes, pipelines, and all necessary apparatus, machinery, structure or structures, and appurtenances upon application to the Grantor for the appropriate permits. This grant shall not apply to the distribution or sale of liquid propane through means other than a pipeline, nor shall this grant apply to the sale or distribution of fuels other than natural gas, manufactured gas, propane/air mixed gas and/or commingled gas. SECTION 3: Term of Franchise Except as otherwise provided herein,the Franchise and rights herein granted shall take effect and be in force from and after the final passage hereof, as required by law and upon the filing of an acceptance by Grantee of all the terms thereof with the Grantor and shall continue in force and effect for a term of thirty(3 0)years after the effective date of this Franchise ordinance. SECTION 4: Assignment No sale, assignment, or transfer of the rights granted hereby except to an affiliate or successor of Grantee shall be effective unless the Grantee shall have filed written notice thereof with the City Clerk at least sixty(60) days prior to the scheduled date of such sale, assignment, or transfer, and unless, subsequent to the filing of such notice, the Council shall have by Ordinance approved and consented to such sale, assignment, or transfer, such approval and consent not to he unreasonably withheld; provided, however, that any sale, assignment, or transfer decreed by a court of competent jurisdiction in any receivership or bankruptcy proceeding shall not be governed by the provisions of this Section. Notwithstanding this foregoing, the Grantee may lease, assign or otherwise alienate and transfer this Franchise in connection with the lease or sale of the gas distribution system or upon the Grantee's merger and consolidation with any other entity engaged in the utility business, or pledge or mortgage such Franchise in connection with �ORBK3965 PG 1618 • 3 of B the physical property owned and used by the Grantee in the operation of the gas distribution system for the purpose of securing payment of monies borrowed by the Grantee without the express, written consent of the City Council or the Grantor. Provided, however, that any assignee or transferee shall be subject to all of the terms and conditions of this Franchise as the Grantee. SECTIONS: Use of Streets The said pipelines, pipes, apparatus, structures and appurtenances shall be erected, placed, or laid in such manner as will, consistent with necessity, least interfere with other public uses of said streets, alleys, avenues, easements, and public grounds, and said streets shall not be unnecessarily obstructed, and before the Grantee makes any excavation or disturbs the surface of any streets, alleys, or other public places, it shall make application for permit to the appropriate City authority and shall, with due diligence and dispatch,place such streets or public places in as good condition and repair as before such excavation or disturbance was made, and in default thereof the City may make such repairs and charge the cost thereof to the Grantee and collect the same from it. To the extent consistent with Florida law, the Grantee hereby agrees to abide by all the rules and regulations and ordinances which the Grantor has passed or might pass in the future, and further agrees to abide by any established policy which the City Council or its duly authorized representative has passed, established, or will establish; provided, however, it is not intended hereby that the City shall have the right of breaching-the tering of this franchise other than as herein provided. SECTION 6: Maintenance All such works, pipes, pipelines, apparatus, structures, appurtenances, and the entire plant and system of Grantee shall be constructed and maintained in such condition as will enable it to furnish adequate and continues service and shall be constructed, installed, and maintained in accordance with accepted good practice and in accordance with the orders, rules, and regulations of the Florida Public Service Commission or other regulatory body having jurisdiction over the Grantee. SECTION 7: Laying of Pipe All main pipelines shall be laid with all applicable codes, rules, regulations and laws, including,to the extent consistent with all applicable codes, rules, regulations and laws, specifications contained in City permits. SECTION 8: Construction Work The City of Zephyrhills reserves the right to permit to be laid electric conduits, water and gas pipes and lines, cables, sewers, and to do and permit to be done any undergroundwork that may be deemed necessary or proper by the City Council or other governmental body having jurisdiction in across, along, or under any street, alley, public way, easement, place, or other public ground. Whenever, by reason of establishing a OR BK 3965 PB 1619 • 4 of 8 grade or by reason of changes in the grade of any street, or be reason of the widening, grading,paving, or otherwise improving present or future streets, alleys, or other public ways and places, or in the location or manner of construction of any water pipes, electric conduit, sewers, or other underground structures, it shall be deemed necessary by the City Council or other governmental body to alter, change, adapt, or conform the mains, pipelines, service pipe, or other apparatus or appurtenance of the Grantee hereto, such alterations, or changes, shall be made by the Grantee as ordered in writing by the City Council or other governing body, without claim for reimbursement. If the City shall require the Grantee to adapt or conform its pipelines, pipes, structures, apparatuses, appurtenances, or other appliances, or in any way to alter,relocate or change its property to enable any other person or corporation, except the City, county government, the state of Florida, or the federal government to use said street, alley, easement, highway or public place, the Grantee shall be reimbursed by the person or corporation desiring or occasioning such change for any loss, cost or expense caused by or arising out of such change, alteration, or relocation of Grantee's property. The Grantee further agrees that it will not interfere with, change, or injure any water pipes, drains, or sewers of said City of Zephyrhills,Florida, unless it has received specific permission from the City Council, its duly authorized representative. SECTION 9: Indemnification During the terms of this Franchise, the Grantee shall file with the City Clerk and shall keep in full force and effect at all times during the effective period hereof, insurance certificates evidencing a general liability insurance policy or policies or evidence of self- insurance, the terms and conditions whereof shall provide that the City is an additional insured as to the Grantee's construction or operation of a natural gas distribution system within the corporate limits, as they currently exist or may exist in the future of the City of Zephyrhills, Florida. Any primary insurance policy must be issued by a company having a management rating in Best's Insurance Guide of BB or better. Each policy shall be in the minimum sum of$1,000,000.00 for injury or death to any one person, and in the minimum sum of$5,000,000.00 for injury or death to all persons where there is more than one person involved in any one accident, and in the minimum sum of$1;000,000.00 for damage to property, resulting from any one accident, and each of the said minimum sums shall remain in full force and shall be undiminished during the effective period of this Ordinance. Every such insurance policy shall contain a provision whereby every company executing the same shall obligate itself to notify the City Clerk of the City of Zephyrhills, Florida, in writing, at least thirty(30) days before any material alteration, modification, or cancellation of such policy is to become effective. Grantor shall not be liable or responsible for any accident or damage that may occur in the course of the construction, operation or maintenance by Grantee, its OR BK 3965 PG 1620 5 of 8 employees, agents, contractors, sublessees or licensees of any of its facilities. In consideration of the permissions granted to the Grantee by this Agreement, Grantee hereby agrees to indemnify and hold harmless the Grantor, its officers, agents and employees from and against any and all claims, suits, actions, and causes of action, arising during the term of this Franchise and resulting in personal injury, loss of life or damage to property sustained by any person or entity, through or as a result of the doing of any work herein authorized or the failure to do work herein required, and including all costs, attorney's fees, expenses and liabilities incurred by the Grantor in connection with any such claim, suit, action or cause of action including the investigation thereof, and the defense of any action or proceeding brought thereon and any order,judgment decree which may be entered in any such action or proceeding or as a result thereof, except that neither the Grantee nor any of its employees, agents, contractors, licensees, or sublicensees shall be liable under this section for any and all claims, suits, actions, damages, expenditures, including attorney's fees, or causes of action arising out of injury, loss of life or damage to persons or property caused by or resulting from the negligence, act, omission, or error of Grantor, its officers, agents, or employees. Nothing in this Franchise Agreement shall be construed to affect in any way the City's rights, privileges, and immunities under the doctrine or "sovereign immunity" and as set forth in Section 768.28, Florida Statutes. The provisions of this section shall survive this Franchise Agreement _ SECT ON 10: Accounts and Record's' The Grantee shall maintain accounting, maintenance, and construction records as prescribed by the Florida Public Service Commission. The Grantee shall establish and maintain appropriate accounts and records in such detail that revenues within the limits of the City of Zephyrhills are consistently declared separately from all other revenues, and such records shall be maintained with the state of Florida, and be open at all reasonable times for inspection by the duly authorized representatives of the Grantor. SECTION 11: Franchise Fee Within thirty(30)days after the close of each month, the Grantee, its successors or assigns, shall pay to the Grantor, or its successors, a franchise fee for the preceding month of six percent (6%) of Grantee's gross revenues (except for those customers whom the City has exempted the payment of franchise fees and which the company will pass the exemption on to the customer's bill), less any adjustments for uncollectible accounts, from the sale of natural gas to customers within the corporate limits of the Grantor,which fee shall be inclusive of license fees, permit fees, ad valorem and all other taxes levied or assess or to be levied or assessed by or on behalf of the Grantor upon the Grantee, it properties, or its operations within the city limits of the City of Zephyrhills. The franchise fee payment shall be deemed paid on-time if post-marked within thirty(30) days of the close of the preceding month. OIC BK 3963 PG 161 6 of 8 As a further consideration of this Franchise, Grantor agrees not to engage in the business of distributing and/or selling natural, manufactured or other gas during the life of this Franchise or any extensions thereof in competition with the Grantee, its successors and assigns. SECTION 12: Affect of Issuance of Alternate Franchise If, during the term of this Franchise, the Grantor, by franchise agreement or ordinance, allows other gas providers, gas consumers, or gas transporters ("Alternate Gas Providers")the right, privilege or franchise to construct, maintain, operate or use gas facilities, in, under, upon, over and across the present or future streets, alleys, bridges, easements or other public places of the Grantor, for the purpose of supplying or delivering natural, manufactured or other gas to consumers located within the corporate limits of Grantor or receiving such gas from a person other than Grantee within such corporate limits, and imposes a franchise compensation obligation or an equivalent on such Alternate Gas Provider for any customer or class of customers that is less than that imposed with respect to the same customer or class of customers under this Franchise Agreement, the franchise compensation rate and/or base to which such rate is applied with respect to the same class of customers shall be reduced under this Agreement so that the franchise compensation paid hereunder for such customer is no greater than the franchise compensation payable by such Alternative Gas Provider under the franchise agreement or ordinance applicable to it, when compared on a dollars-per-therm basis. In the event that Grantor determines not to impose-any franchise compensation by agreement, ordinance or otherwise on any such Alternative Gas Provider, Grantee's obligation to pay a franchise fee with respect to revenues derived from the provision of service to the involved class of customers under this Agreement thereafter shall be extinguished. SECTION 13: Forfeiture or Revocation of Grant: Violation by the Grantee of any of the covenants, terms, and conditions, hereof, or default by the Grantee in observing or carrying into effect any of said covenants, terms and conditions, shall authorize and empower the City Council to declare a forfeiture of and to revoke and cancel all rights granted hereunder, provided, however, that before such action by the Council shall become operative and effective, the Grantee shall have been served by the City with a written notice setting forth all matters pertinent to such violation or default, and describing the action of the Council with respect thereof, and Grantee shall have had a period of sixty (60) days after service of such notice within which to rectify such violation or default; and provided further that any violation or default resulting from a strike, a lockout, an act of God, or any other cause beyond the control of the Grantee shall not constitute grounds for revoking and cancelling any rights hereunder. In the event that the Grantee, upon receipt of said written notice from the City, does not desist from such violation within the time aforesaid, then the Grantee shall OR BK 3965 PG 3622 7 of 8 . be deemed to have forfeited and annulled and shall thereby forfeit and annul all of the said franchise grants, privileges, rights, licenses, and immunities given by this franchise. SECTION 14: Attorney's Fees and Expenses Except as otherwise provided for herein, Grantor and Grantee hereto agree that if litigation becomes necessary to enforce any of the obligations, terms and conditions of this Franchise, the prevailing party shall be entitled to recover a reasonable amount of attorney's fees and court costs, including fees and costs on appeal, froihi the non-prevailing party. SECTION 15: Governing Law and Venue (a)The rights and privileges granted to Grantee by this Franchise shall at all times be subordinate and inferior to the rights of the public in and to the ordinary use of Grantor's right-of-ways and nothing in this Franchise shall be considered as a surrender by Grantor of its right and power to use and relocate the use of its right-of-ways. (b) The Franchise and rights herein granted are subject to the provisions of existing Federal laws and the laws of the state of Florida and those hereafter enacted pertaining to the granting of franchises. - - __ (c)Venue. In the event that any legal proceeding is tit-ought to entorce'the terms of this Franchise, the same shall be brought in Dade City, Pasco County,Florida, or, if a federal claim, in the U.S. District Court in and for the Middle District of Florida, Tampa Division. ECIION1 d: Ownges in Provisions hereof - - -— Changes in the terms and conditions hereof may be made by written agreement between the City and the Grantee. SECTION 17: Conflicts All ordinances or parts of ordinances pertaining tothe subject matter of this Franchise, insofar as they are inconsistent with or in conflict with the provisions of this Ordinance, be and the same are hereby repealed. SECTION 18: Severability If any section, part of 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. SECTION 19: Effective Date This Ordinance shall become effective immediately upon its passage and adoption,provided the Grantee shall have signified its acceptance of the franchise hereby granted, in writing,within thirty(30) days from the date this Ordinance is duly adopted, the Grantee's acceptance of said franchise being a condition precedent to the effectiveness of the provisions of this Ordinance. / OR BK 3965 PG 1623 • 8 of 8 The foregoing Ordinance No.: ,q was read and passed on its first reading in open and regular meeting by the City Council of the City of Zephyrhills, Florida, on this k-- days OE �� A.D., 1998. - iCHARLES E. ATKINS, HI ° ,M.ry 47-�''�,' �' President of City Council Attest: , �,1,G -1-,✓ City e1erk,-LINDA D. BOAN The fo:ei omg Ordinance No.: (0II- was read and passed on its second reading • in open and regular.meeting by the City Council of the City of Zephyrhills, Florida, on this o2' day of ,u/f� ,A.D., 1998. llb y 2tPp� -- © -.. &, � CHARLES E. ATKINS, HI e •1 President of City Council • Attes cy\zlLet,,,,- --_ X "`;City erlc,LINDA: BOAN n (, • '' c n % c}. c, ti-7 .i C The foregoing Ordinance No.: 6 qs" was approved by me this o� day of `ye____ A.D., 1998. I 4,o AMES A. BA LEY, Mayor a:lpeoplegaord(ciry#4)