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HomeMy WebLinkAboutOrd.1062.08-19-1991.Gas FranchiseBILL NO. 91-157 ORDINANCE NO. /06Z AN ORDINANCE GRANTING THE RIGHT, PERMISSION AND AUTHORITY TO UNION ELECTRIC COMPANY, ITS SUCCESSORS AND ASSIGNS, FOR THE PERIOD OF TWENTY YEARS, TO CONSTRUCT, MAINTAIN AND OPERATE WITHIN THE CITY OF CAPE GIRARDEAU, MISSOURI, A SYSTEM FOR THE DISTRIBUTION AND SALE OF NATURAL GAS AND/OR ARTIFICIAL GAS FOR ANY AND ALL PURPOSES; AND PROVIDING FOR ITS ACCEPTANCE BY THE COMPANY BE IT ORDAINED BY THE COUNCIL OF THE CITY OF CAPE GIRARDEAU, MISSOURI, AS FOLLOWS: ARTICLE 1. RIGHTS AND PRIVILEGES OF COMPANY 1.1 That the right, permission and authority be, and the same hereby is granted to Union Electric Company (hereinafter called the "Company"), a corporation existing under and by virtue of the laws of the State of Missouri, its successors and assigns, to construct, maintain and operate within the city limits, of the City of Cape Girardeau, Missouri, a municipal corporation, organized and existing under and by virtue of the laws of the State of Missouri (hereinafter referred to as the "City"), as now fixed and as hereafter extended, a system for the transmission, distribution and sale of natural and/or artificial gas for any and all purposes; and for such purposes to construct, maintain, and operate all necessary mains, pipes, manholes, underground vaults, services and apparatus necessary for such system in, upon, across and under each and all of the streets, alleys, avenues and other public places designated by the City for public use, subject to the conditions and regulations hereinafter set forth. 1.2 When any property owned by the Company becomes eligible for voluntary annexation to the City, the Company will upon request by the City, and to the extent permitted by law, initiate and undertake whatever action is necessary to annex that property upon request by the City, provided that no condition of such annexation shall impair the Company's ownership or use of its property. Except as herein provided, the Company agrees to comply with all terms and conditions imposed upon the annexation by the City which are consistent with the other terms of this Franchise and which are no more stringent than those generally imposed upon property owners seeking annexation of their land to the City. 1.3This Franchise does not grant to the Company the right, privilege or authority to engage in the community antenna (or cable) television business, although nothing herein contained shall preclude the Company (1) from permitting those lawfully engaged in such business to utilize Company's facilities within the City for such purposes, or (2) from providing such service if appropriate authority is obtained. 1.4 The Company shall indemnify, defend and hold the City harmless from and against claims, demands, liens and all liability or damage of whatsoever kind on account of or arising from the grant of this Franchise, the exercise by the Company of the related rights, or from the operations of the Company within the City, and shall pay the costs of defense plus reasonable attorneys' fees. The City shall (a) give prompt written notice to the Company of any claim, demand or lien with respect to which the City seeks indemnification hereunder and (b) unless in the City's judgment a conflict of interest may exist between the City and the Company with respect to such claim, demand or lien, permit the Company to assume the defense of such claim, demand, or lien. If such defense is not assumed by the Company, the Company shall not be subject to any liability for any settlement made without its consent. Notwithstanding any provision hereof to the contrary, the Company shall not be obligated to indemnify, defend or hold the City harmless to the extent any claim, demand or lien arises out of or in connection with any negligent act or failure to act of the City or any of its officers or employees. 1.5 In the event the Company or the City fails to fulfill any of their respective obligations under this Franchise, the City or the Company, whichever the case may be, will have a breach of contract claim and remedy against the other in addition to any other remedy provided by law or in equity, provided that no remedy which would have the effect of amending the specific provisions of this Franchise shall become effective without such action which would be necessary to formally amend the Franchise. If either party brings legal action to enforce any portion of this agreement, the losing party agrees to pay the other party's legal fees and other costs associated with such litigation. ARTICLE 2. EXISTING EQUIPMENT 2.1 Subject to the requirements of Section 11.2 of this Franchise, all facilities emplaced under this grant shall be placed in streets or alleys, whenever practical to do so, and shall be so placed, whether in streets, alleys, avenues or other places designed by the City for public use, as not to interfere unnecessarily with travel on such streets, alleys, avenues and other places designated by the City for public use. All facilities installed by the Company under this ordinance shall be so located as not to injure unnecessarily any drains, sewers, catch basins, water pipes, streets or other public improvements, but should any pavement, drain, sewer, catch basin, street, water pipe or other - 2 - like improvement be injured by such installation or construction, the Company shall as soon as practicable repair any and all damage caused by such injury. The Company agrees to warrant such repairs for a period of thirty (30) months. In the event that such repair fails during the thirty (30) month period due to defects in the Company's workmanship or materials, the Company shall be responsible for making such additional repairs as are reasonably required to correct such failure. The right of the Company to install its facilities shall be subject to the private property rights of other persons and (except for service lines extending to individual meter locations) the Company shall have no right to extend its facilities over private property except as provided through an appropriate right-of-way secured for that purpose. ARTICLE 3. USE OF PUBLIC WAY 3.1 The right and privilege of the Company to use the streets, alleys, avenues and other places designated by the City for public use, shall be a subservient right to such use by the City, and should a conflict of use arise during the life of the Franchise, the Company shall make such construction changes as reasonably necessitated by the City's own use, and further, such changes shall be at the sole expense of the Company. Furthermore, the right to use said streets, alleys, avenues and other places designated by the City for public use for the purposes herein set forth is not, and shall not be deemed to be, an exclusive franchise, and the City reserves the right to itself to make or grant a similar use in*the said public ways and places to any other person, firm, or corporation, including the City government of Cape Girardeau. The Company agrees that it will limit new construction of gas lines to the outer ten (10) feet of street or alley right- of-way except where necessary to cross a street or alley, or except where a variance is granted through a construction permit. ARTICLE 4. OTHER SOURCES OF GAS 4.1 The parties hereto recognize the right of the City or any business within the City of Cape Girardeau to purchase from the Company or, to the extent and under the conditions not forbidden by law, other sources of natural and/or artificial gas by way of separately negotiated contracts at or below fair market rates. - 3 - ARTICLE 5. RATE REGULATION 5.1 The rates to be charged by the Company for gas distributed and sold under this ordinance shall be in accordance with those on file and approved or accepted by the Public service Commission, State of Missouri, or those that may be filed from time to time, and said gas shall be furnished under such conditions as may be prescribed by said Commission. ARTICLE 6. EXECUTION, EFFECTIVE DATE, AND DURATION FRANCHISE 6.1 All rights and privileges granted by this ordinance are granted for the term of twenty (20) years from and after the acceptance of this ordinance by the Company. After passage and approval hereof by the City Council, the Company shall promptly file its unconditional acceptance in writing of .such Franchise. Failure on the part of the Company to so accept this ordinance promptly shall be deemed a rejection thereof by the Company, and the rights and privileges herein granted shall not become effective, unless the time be extended by ordinance duly passed for that purpose. This Franchise shall not become effective until it has been submitted to the voters of the City of Cape Girardeau and approved by a majority voting thereon pursuant to Article IX of the Cape Girardeau City Charter. This matter may not be submitted to a special election unless the expense of holding such election as determined by the Council shall have been paid into the City treasury by the Company in advance. ARTICLE 7. RIGHT OF FIRST PURCHASE 7.1 In the event the Company at any time during the term of this Franchise reaches a tentative good faith written agreement with an unrelated third party for the sale of all or substantially all of the Company's gas distribution system within the City, the Company shall notify the City in writing of such proposed sale, which notice shall include the general terms and conditions thereof. Within one hundred eighty (180) days of such notice, the City may elect by written notice to the Company to purchase said property from the Company under the same terms and conditions as were agreed to by the Company and the prospective third party purchaser, recognizing that additional and/or different terms and conditions mutually agreeable to both the City and the Company would be necessary before finalizing a contract. If the City does - 4 - not provide such written notice, or if the City and Company fail to reach a final binding sales contract within one hundred eighty (180) days after said notice from the City to the Company, the Company may sell the property to the third party with which it had negotiated, under substantially the same substantive terms and conditions as had been provided in the notice to the City. It is understood that nothing in this paragraph shall preclude the Company from transferring real property to a subsidiary or affiliate without first according the City the rights referred to above. The Company will not sell the property to any party unless (i) the transferee agrees in writing that whenever it proposes to sell or dispose of such property, it shall not do so without first affording the City the rights referred to above and (ii) the transferee will not sell or dispose of such property unless the subsequent transferee agrees to preserve and cause to be preserved the City's rights referred to above throughout the term of this Franchise. It is further.understood that any sale by the Company to the City under the terms of this paragraph would be subject to any regulatory approvals as may be required by law as well as any requirements for approval by the voters of Cape Girardeau. The City's right of first purchase, as described above, applies only in the event that the proposed sale to the third party is restricted to the Company's gas system within the City and its immediately surrounding areas. The City shall have no such right of first purchase if the proposed third party sale includes all or a substantial portion of the Company's gas system outside the City and its immediately surrounding areas, or if it is restricted to individual parcels of real estate and/or improvements thereon. 7.2 The right and privilege of the City, to the extent and under the conditions not forbidden by law, to construct its own gas utility system is hereby recognized. Further, nothing herein shall in any manner diminish or affect any right the City may otherwise have to purchase the gas systems of the Company located within the boundaries of the City. 7.3 In the event that the Company elects to sell its gas system to the City under any circumstances not controlled by provisions of this franchise dealing with the City's right of first purchase, it is agreed by and between the parties that the purchase price will be reproduction cost less depreciation. In the event of any such purchase, no value shall be ascribed or given to the rights granted by the people of the City under this franchise in the valuation of the property thus purchased by the City. - 5 - ARTICLE 8. NON -CONTESTABILITY, FORFEITURE AND TERMINATION 8.1 The Company and City agree to take all reasonable and necessary actions to assure that the terms of this Franchise are performed and will take no action to secure modifications of this Franchise before either the Public Service Commission or any Court of competent jurisdiction, except as may be necessary to conform to laws or regulations duly enacted after the passage of this Franchise. 8.2 In the event the Company fails to perform and carry out any of the stipulations and agreements herein set forth in any particular within the Company's control, and with respect to which redress is not otherwise herein provided, the City, acting by and through its Council, may, after hearing, determine that such failure is of a substantial nature; and thereupon, after notice given the Company of such determination, the Company shall have thirty (30) days' time in which to remedy the conditions respecting which such determination shall have, been made. After the expiration of such thirty (30) days' period and failure to correct such conditions, the City may declare this Franchise forfeited, and thereupon the Company shall have no further rights or authority hereunder, provided, however, that any such declaration of forfeiture shall be subject to judicial review as provided by law, and provided further that in the event such failure is of such nature that it cannot be reasonably corrected within the thirty (30) days' time provided above, the City shall provide reasonable time for the reasonable correction of such failure in lieu of the thirty (30) days time provided above. ARTICLE 9. CITY REGULATION 9.1 The City expressly reserves, and the Company expressly recognizes, the City's right and duty to adopt, from time to time, in addition to the provisions herein contained, such lawful ordinances as may by the City be deemed necessary in the exercise of its police power for the protection of the heath, safety and welfare of its citizens and their properties. While such ordinances may affect the Company directly or indirectly, such ordinances are not part of this agreement and are subject to revision by the City in its discretion. - 6 - ARTICLE 10. CITY MANAGER 10.1 The City Manager or his designee is .hereby designated the official of the City having authority to take appropriate action for and on behalf of the City and its inhabitants to enforce the provisions of this Franchise and to investigate any alleged violations or failures of the Company to comply with the provisions hereof or to adequately and fully discharge its responsibilities and obligations hereunder. The failure or omission of the city Manager or his designee to so act shall not constitute any waiver or estoppel. 10.2 In order to facilitate such duties of the City Manager, or designee, the Company agrees: a. To allow the City Manager or his designee reasonable access during normal business hours to any part of the plant, works and systems within the City and that the City Manager or his designee may make and supervise tests made by the City to determine the quality of the gas service supplied the customers of the Company, with particular reference to the standards of service provided herein and in the Rules and Regulations prescribed by, and the tariffs of the Company filed with, the Public Service Commission from time to time. b. That the City Manager or his designee may investigate and convey to the Company to the Public Service Commission any concern of any customer of the Company within the city with respect to the quality and price of gas service and the appropriate standards thereof. C. To submit to the city Manger or his designee, upon request for specific documents, all filings made by the Company with the Public Service Commission related to the provision of gas service to persons within the City. d. To grant the City Manager or his designee reasonable access during normal business hours to the books and records of the Company which are maintained within the City, insofar as they relate to any matters covered by this Franchise; and for purposes such as audits of gross receipts taxes, to all other books and records of the Company, where ever such books and records may be kept; to provide the City Manger or his designee with such reasonable and necessary reports containing or based on information readily obtainable from the Company's books and records as he may from time to time request with respect to the gas service supplied under this Franchise; and to provide the City Manager or his designee, upon request not more than every two (2) years, a list of utility related real property owned or leased by the Company within the City. - 7 - e. Upon specific request, to meet at least annually with the City Manager or his designee for the purpose of reviewing, implementing, and/or modifying mutually beneficial procedures and methods for the conduct of the Company's business related to this Franchise Agreement. f. Upon specified request, to meet with the City Manager or his designee at least annually to share and coordinate information on management information systems which would lead to coordinated management, operation and repair of the facilities of the City and of the Company, provided that the implementation of any such systems will be done on a cost sharing basis agreed to by the City and the Company. 10.3 The term "City Manager, or his designee" shall include such accountants, engineers, attorneys and other agents employed by the City to assist the City Manager, or his designee, in carrying out the duties of the City Manager or his designee hereunder. ARTICLE 11. PLAN, DESIGN, CONSTRUCTION AND INSTALLATION OF COMPANY FACILITIES 11.1 On or before January 1 of each year, the Company will furnish the City with a copy of its five-year capital expenditure budget, together with such additional information as the Company deems appropriate relating to projects planned within the City of Cape Girardeau. Similarly, on or before May 1 of each year, the City will submit to the Company its five-year forecast for construction and other similar work which may affect the rights-of-way occupied by Company facilities. The City and Company shall hold such meetings, including public meetings with proper notice, as they deem necessary to exchange additional information with a view towards coordinating their respective activities in those areas where such coordination may prove mutually beneficial and so that the City will�be assured that all building and zoning codes and other regulations are complied with, and that aesthetic and other relevant planning principles have been given due consideration. It is recognized that, notwithstanding the foregoing, the Company and the City each retains absolute discretion over the timing and other aspects of its proposed projects. 11.2 All gas facilities hereafter constructed by the Company within the City shall be located so as to cause minimum interference with public use of streets, alleys and other public ways and places, and shall be maintained in accordance with - 8 - applicable laws, rules and regulations. Construction permits may be required by the City pursuant to its applicable rules and regulations, which permits shall not be unreasonably denied. 11.3 Upon request by the City, the Company shall review technological advances which have occurred in the gas utility industry and report to the City whether it believes it appropriate to incorporate such advances into the Company's operations. ARTICLE 12. COMPANY EXCAVATIONS AND RELOCATIONS 12.1 The Company shall have the right to excavate in, occupy and use any and all such streets, alleys, roads, lanes, public ways, and other public places under the supervision of properly constituted authority and subject to the conditions of the City Charter, ordinances and rules and regulations of the City, provided, however, that the Company shall not, pursuant to this Franchise, hereafter place any of its gas facilities over, under or within any City park, City Hall property, fire department property, or police department property, but nothing herein contained shall preclude the City from granting a revocable permit therefor. 12.2 Any location or relocation of the Company's facilities in the said public ways and places required, caused or occasioned by any city owned project shall be at the cost of the Company. The Company shall reconstruct, replace or restore any street, alley, or public way or place, in a timely fashion, and any water, sewer or other facility of the City disturbed by the Company, without cost to the city to a condition acceptable to the City consistent with reasonable standards for the protection of the public health, safety and welfare and subject to the City's right and obligation to adopt reasonable ordinances for that purpose. ARTICLE 13. NO WAIVER 13.1 Neither the City nor the Company shall be excused from complying with any of the terms and conditions of this Franchise by any failure of the other, or any of its officers, employees, or agents, upon any one or more occasions to insist upon or to seek compliance with any such terms and conditions.. ARTICLE 14. NOTICES 14.1 Unless otherwise specified herein, all notices from the Company to the City pursuant to or concerning this franchise shall be delivered to the City Manager of the City of Cape Girardeau, Missouri. The Company shall maintain within the City throughout the term of this Franchise an address for service of notices by mail, and a local office and telephone number for the conduct of matters relating, to the Franchise during normal business hours. ARTICLE 15. GAS SERVICE 15.1 Subject to the provisions of Article 4 of this Franchise Agreement, in accordance with the terms hereof, the Company shall furnish natural and/or artificial gas within the corporate limits of the City, as they exist at the time of the granting of this Franchise, and to the inhabitants thereof, and to any person or persons or corporation doing business in the City limits as so defined. All such products or services shall be furnished at the rates and under the terms and conditions of the Company's tariffs as set forth in the Rate Schedules, Standards for Service, Rules and Regulations, and Service Connection and Extension Policies in effect from time to time with the Public service Commission. 15.2 The Company will from time to time during the term of this Franchise make such enlargements and extensions of its gas systems as are necessary to adequately provide for the requirements of the City and the inhabitants thereof. Such enlargements and extensions shall be made in accordance with the Company's Rules and Regulations, Service Connection and Extension Policies and Standards for Service effective from time to time with the Public Service Commission. 15.3 The Company shall keep on file in its office in the City, available to the public, and in the office of the City Clerk of the City copies of the Company's Tariffs, Rate Schedules, Standards for Service, Rules and Regulations and Service Connection and Extension Policies in effect from time to time with the PSC. 15.4 The City and the Company recognize that the lawful provisions of the Company's tariffs on file and in effect with the Public Service Commission which are consistent with the restrictions and limitations of Missouri law regarding the rights of municipalities to franchise are controlling over any inconsistent provision of this Franchise dealing with the same subject matter. In the opinion of both the Company and the City, no provision of this Franchise is inconsistent with any of the currently effective provisions of the Company's tariffs. The Company agrees to provide the City with a copy of all proposed rules from the PSC regarding Company's activities pursuant to this Franchise within ten (10) days of the Company's receipt of such proposed rule changes. - 10 - ARTICLE 16. EQUAL OPPORTUNITY AND AFFIRMATIVE ACTION 16.1 The Company is committed to stimulating and strengthening the participation of minorities and women with the Company and the economic system which will lead to long-term mutual benefit. The Company is also committed to the principle that the success and economic well-being of the Company are related closely to the economic strength and vigor of the communities and people it serves. The Company affirms its support of equal opportunity and affirmative action, on both the spirit and the letter of the law. In accordance with these principles, the Company has entered into a comprehensive agreement with an agency of the Federal Government, pursuant to Federal law, which details the Company's commitment to a long term program of affirmative action. Upon request, the Company will provide the City with a copy of this Affirmative Action Program, and copies of all public records regarding its progress toward meeting the goals established therein. ARTICLE 17. SYSTEM TO REMAIN IN PLACE 17.1 If the City purchases the Company's gas system or if the City constructs its own gas system in a manner provided by state law, the Company agrees to cooperate with the City in providing a continued source of supply to customers within the City, and to otherwise cooperate with the City in providing a smooth transition in the change of suppliers. ARTICLE 18. ECONOMIC DEVELOPMENT 18.1 The Company shall designate an employee to provide marketing assistance, specific information and advice to all local entities operating economic development programs. ARTICLE 19. COMMUNITY RELATIONS 19.1 The Company agrees to maintain a business office to provide local accessibility for customers to resolve individual service problems. ARTICLE 20. TRANSFER OF FRANCHISE OR ASSETS 20.1 The Company shall not transfer, give or assign by merger or otherwise, any property or rights granted under this Franchise to another entity unless the City Council shall first give its approval in writing except to the extent otherwise permitted by Article 7 of this Franchise. ARTICLE 21. CITY MAY COMPETE 21.1 To the extent not forbidden by law, the City expressly reserves the right to engage in the purchase, production, transmission, distribution and sale of natural and/or artificial gas, and to market said gas to retail or wholesale customers of its own. ARTICLE 22. CHANGING CONDITIONS 22.1 The Company and the City recognize that some aspects of the gas utility business are currently the subject of discussion, examination and inquiry by different segments of the industry and affected regulatory authorities and that these activities may ultimately result in fundamental changes in the way the Company conducts its business and meets its service obligations. In recognition of the present state of uncertainty respecting these matters, the Company and the City each agree, on request of the other during the term of this Franchise, to meet with the other and discuss in good faith whether it would be appropriate, in view of developments of the kind referred to above during the term of this Franchise, to amend this Franchise or enter into separate, mutually satisfactory arrangements to effect a proper accommodation of any such developments. ARTICLE 23. AMENDMENT 23.1 At any time during the term of this Franchise, the City through its City Council, or the Company may propose amendments to this Franchise by giving thirty (30) days written notice to the other of the proposed amendment(s) desired, and both parties thereafter, through their designated representatives, will, within a reasonable time, negotiate in good faith in an effort to agree upon mutually satisfactory amendment(s). 23.2 Amendments to this Franchise are subject to the requirements of the Cape Girardeau City Charter. ARTICLE 24. SEVERABILITY - 12 - 24.1 If any provision of this Franchise or its application to any circumstances is held invalid, such invalidity shall not affect other provisions or applications of this Franchise, and to this end the provisions hereof are declared to be severable. ARTICLE 25. HEADINGS 25.1 The headings or titles employed for the various articles of this Franchise Agreement are not part of the Franchise and are used for descriptive purposes only. - 13 - Pursuant to the City Charter of Cape Girardeau and subject to a vote of approval of the registered electors of the City of Cape Girardeau, Missouri, this Franchise Ordinance is duly adopted by the City Council of Cape Girardeau, Missouri, this 19 h) day of q, 19 / Qf' "(J rands E. Rhodes 46y4F 0T: Su 1 A. Dale De ty City Clerk ACCEPTANCE OF FRANCHISE The City Council of the City of Cape Girardeau, Missouri, by proceedings properly held and recorded, duly passed and approved Ordinance No. /OL/O Z , granting the right, permission and authority to Union Electric Company, a corporation organized and existing under and by virtue of the laws of the State of Missouri, to operate a utility franchise and authorizing Union Electric Company to enjoy certain rights and privileges and imposing upon said Company certain duties and responsibilities, all as set forth in said Ordinance. Union Electric Company hereby accepts without condition or exception said Ordinance and all the terms thereof and hereby agrees to abide by same, all subject to approval of the voters of the City of Cape Girardeau, Missouri. Union Electric )Comp Y has caused this instrument to be executed b its (/ Vie. 7/ es ilo and attested by its AZpa, and the seal of said corporation toe h reunto affixed on this �% f� day of 'AL1//�Qlat 19 '.�. UNION,, /E�LECTRIC COMPANY /l% ; A,V,,, G iC l C� air- William C. Sbolyes ATTEST: Vice President (Typed Name & Title of Signer) ST C. T MPSOfl ( ed Name & Title of Signer) - 14 - 14 APPLICATION FOR ADOPTION OF AN ORDINANCE GRANTING A FRANCHISE TO UNION ELECTRIC COMPANY FOR THE OPERATION OF A SYSTEM FOR THE DISTRIBUTION AND SALE OF NATURAL GAS AND/OR ARTIFICIAL GAS WITHIN THE CITY OF CAPE GIRARDEAU, MISSOURI Comes now Union Electric Company, a Missouri Corporation, and does hereby make application to the City Council of Cape Girardeau, Missouri, for the adoption of an ordinance granting the right, permission and authority to Union Electric Company, its successors and assigns, for the period of twenty (20) years, to construct, maintain and operate within the City of Cape Girardeau, Missouri, a system for the distribution and sale of natural gas and/or artificial gas for any and all purposes; and providing for its acceptance by Union Electric Company. Union Electric Company hereby requests the City Council to hold a public hearing with respect to the adoption of this ordinance for the purpose of soliciting public comment on the franchise proposal. The proposed ordinance containing the terms of the proposed gas franchise is attached hereto and made part of this application by reference and Union Electric Company further states that it will accept the terms of this proposed ordinance and franchise without condition or exception and will agree to abide by the terms of the franchise agreement as set out in the proposed ordinance, all subject to the approval of the voters of the City of Cape Girardeau, Missouri. Union Electric Company has caused this instrument to be executed by its Vice President and attested by its Secretary, and the seal of said corporation hereunto affixed on this /gf A day of July 1991. UNION ELECTRIC COMPANY, a Missouri Corporation (SEAL] / William C �Shoreq Vice President ATTEST: