[Ord. No. 2009-23, 5-12-2009]
This franchise agreement (sometimes hereinafter referred to
as the "franchise" or the "agreement") is between the City of Lake
Ozark, Missouri, hereinafter referred to as "Franchising Authority"
or "City" and Missouri Gas Utility, Inc., hereinafter referred to
as "Grantee."
The Franchising Authority, having determined that the Grantee
has substantially complied with the financial, legal, and technical
ability and is able to provide the services, facilities, and has the
equipment necessary to meet the natural gas distribution needs of
the community, and having afforded the public adequate notice and
opportunity for comment, desires to enter into this franchise with
the Grantee for the construction and operation of a natural gas distribution
system on the terms set forth herein.
[Ord. No. 2009-23, 5-12-2009]
A.
Terms. For the purpose of this franchise, the following
terms, phrases, words, and abbreviations shall have the meanings ascribed
to them below. When not inconsistent with the context, words used
in the present tense include the future tense, words in the plural
number include the singular number, and words in the singular number
include the plural number:
- CUSTOMER
- A person who lawfully receives natural gas service from the Grantee with the Grantee's express permission.
- FRANCHISING AUTHORITY
- The City of Lake Ozark, Missouri or the lawful successor, transferee, or assignee thereof.
- GRANTEE
- Missouri Gas Utility, Inc., or the lawful successor, transferee, or assignee thereof.
- GROSS REVENUES
- Any revenue from commodity, PGA and monthly meter charges received by the Grantee from the operation of the natural gas distribution system to provide natural gas service in the service area. Gross revenues shall not include: any tax, fee or assessment of general applicability collected by the Grantee from customers for pass-through to a government agency, including franchise fees, refundable deposits, bad debt, late fees, investment income, or unrecovered bad debt.
- MPSC
- The Missouri Public Service Commission.
- NATURAL GAS DISTRIBUTION SYSTEM
- The Grantee's facility, consisting of buried main and service pipelines made of steel and/or polyethylene pipe in mid and high densities and above ground facilities such as regulator stations or other appurtenances, all constructed to DOT OPS Part 191 and 192 specifications, with natural gas meters installed at each customer location above ground.
- PERSON
- An individual, partnership, limited liability company, association, joint-stock company, trust, corporation, or governmental entity.
- PUBLIC WAY
- The surface of, and the space above and below, any public street, highway, freeway, bridge, land path, alley, court, boulevard, sidewalk, parkway, way, lane, public way, drive, circle, or other public right-of-way, including, but not limited to, public utility easements, dedicated utility strips, or rights-of-way dedicated for compatible uses and any temporary or permanent fixtures or improvements located thereon now or hereafter held by the Franchising Authority in the service area which shall entitle the Franchising Authority and the Grantee to the use thereof for the purpose of installing, operating, repairing, and maintaining the natural gas distribution system. Public way shall also mean any easement now or hereafter held by the Franchising Authority within the service area for the purpose of public travel, or for utility or public service use dedicated for compatible uses, and shall include other easements or rights-of-way as shall within their proper use and meaning entitle the Franchising Authority and the Grantee to the use thereof for the purposes of installing and operating the Grantee's natural gas distribution system and other property as may be ordinarily necessary and pertinent to the natural gas distribution system.
- SERVICE AREA
- The present boundaries of the Franchising Authority, and shall include any additions thereto by annexation or other legal means.
[Ord. No. 2009-23, 5-12-2009]
A.
Grant. Subject to the terms and conditions set forth
in this agreement, the Franchising Authority hereby grants to the
Grantee a nonexclusive franchise which authorizes the Grantee to construct
and operate a natural gas distribution system in, along, among, across,
under, or in any manner connected with public ways within the service
area, and for that purpose to erect, install, construct, repair, replace,
reconstruct, maintain, or retain in, on, over, under, upon, across,
or along any public way such facilities and equipment as may be necessary
or appurtenant to the natural gas distribution system. The Franchising
Authority and the Grantee acknowledge that the rights, privileges
and authority of the Grantee in this franchise will never be deemed
to be exclusive to the Grantee, and the Franchising Authority reserves
the right to grant a similar use of such public ways to any person
or corporation at any time during the term of this franchise, provided
that such grant does not materially interfere with the Grantee's
physical ability to exercise the rights granted to it hereunder to
lay and maintain its facilities necessary to the sale, transportation,
and distribution of gas in and along the public ways. Furthermore,
such rights, privileges and authority will be subject to ordinances
and other rules and regulations of the Franchising Authority, and
any other proper entity, currently in effect and as may be properly
amended or enacted from time to time.
B.
Other Ordinances. The Grantee agrees to comply with
the terms of all lawfully adopted generally applicable local ordinances,
rules, regulations, and Municipal Code as are in effect as of the
effective date of this franchise or as such ordinances or Code may
hereafter be amended from time to time as generally applicable to
all persons or firms who conduct business within the corporate limits
of the Franchising Authority.
C.
Equal Protection. The Franchising Authority shall
not authorize or permit any person to enter into the Franchising Authority's
public ways for the purpose of constructing or operating a natural
gas distribution system or providing natural gas services to any part
of the service area on terms or conditions more favorable or less
burdensome to such person than those applied to the Grantee pursuant
to this franchise, in order that one operator not be granted an unfair
competitive advantage over another, and to provide all parties equal
protection under the law. Notwithstanding the foregoing provisions,
however, the Franchising Authority may authorize or permit another
person to take the foregoing actions so long as any terms or conditions
offered to such other person are also formally offered and extended,
in advance, to the Grantee, thereby affording the Grantee with the
opportunity to either accept or decline identical terms to those offered
to any other person during the pendency of this franchise.
D.
Term. The franchise granted hereunder shall be for an initial term of twenty (20) years commencing on the effective date of the franchise as set forth in Section 630.090(J), unless otherwise lawfully terminated in accordance with the terms of this franchise.
E.
Service By Grantee.
1.
The Grantee shall at all times during the term hereof make such extension
of its gas mains from time to time, and install such service connections
to the curb lines in streets and to property lines as may be required
in order to furnish gas service to applicants located within the corporate
limits of the Franchising Authority and all under such rules, regulations,
and conditions as the governing body of said Franchising Authority
may from time to time prescribe. These extensions shall be provided
in accordance with the tariffs of the Grantee, on file with the MPSC.
2.
The Grantee shall supply the Franchising Authority and the commercial
and residential inhabitants thereof, in accordance with the accepted
standard of the industry, gas service to provide for their needs during
the term of this franchise, unavoidable accidents and delays and other
causes beyond the control of the Grantee excepted. The Grantee assumes
the economic risks associated with its services, and the profitability
to the Grantee will not be taken into account as a cause beyond the
Grantee's control for purposes of this agreement. In the event
that such service is not given by the Grantee, all rights under this
franchise may be terminated and may be forfeited, and the Franchising
Authority will have all rights available at law and in equity to seek
relief from any damages caused by lack of such service by the Grantee.
This service shall be provided in accordance with the tariffs of the
Grantee, on file with the MPSC.
3.
The rates that shall be charged by the Grantee for gas shall be fair
and reasonable and such as may from time to time hereafter be lawfully
fixed by the MPSC, all in accordance with law. The Grantee will provide
to the City Administrator, or if such office is temporarily vacant,
to the Mayor of the Franchising Authority, complete schedules of its
current and future rates and rules and regulations as filed with the
MPSC. Nothing contained herein shall be construed as waiving the rights
of either the Franchising Authority or the Grantee to a review in
the courts in such manner as is now or may hereafter be provided by
law of any findings or order of the MPSC.
F.
Deadline For Construction And Implementation Of Distribution
System.
1.
Notwithstanding any provision of this agreement to the contrary,
the Grantee will take substantial steps towards the design and implementation
of and will actually begin construction and installation of the natural
gas distribution system within the corporate boundaries of the Franchising
Authority prior to the expiration of three (3) years after the effective
date of this franchise; and in addition, the Grantee will have, at
a minimum, a sufficient natural gas distribution system completed,
installed, and on-line within the corporate boundaries of the Franchising
Authority as follows:
a.
Within five (5) years after the effective date of this Franchise,
a percentage of the potential customers of the Grantee (including
residences and businesses within the corporate limits of the Franchising
Authority, collectively) equal to 25% of said potential customers
will have immediate access to the Grantee's natural gas utility
services; and
b.
Within eight (8) years after the effective date of this franchise,
a percentage of the potential customers of the Grantee (including
residences and businesses within the corporate limits of the Franchising
Authority, collectively) equal to 75% of said potential customers
will have immediate access to the Grantee's natural gas utility
services; and
c.
Within ten (10) years after the effective date of this franchise,
a percentage of the potential customers of the Grantee (including
residences and businesses within the corporate limits of the Franchising
Authority, collectively) equal to 90% of said potential customers
will have immediate access to the Grantee's natural gas utility
services.
2.
In the event that the Grantee has not either commenced construction of or completed and installed the natural gas distribution system as stated herein prior to the expiration of the applicable dates specified herein, then the governing body of the Franchising Authority will have the right, at its sole discretion, to immediately terminate all rights and obligations under this franchise without recourse from or liability to the Grantee. In addition to the termination of the franchise, the Franchising Authority will at all times retain any rights it may have to seek relief from any damages it may sustain caused by the Grantee's non-performance of this paragraph/subsection, either at law or in equity. In seeking damages and terminating all rights pursuant to the terms of this Subsection, the Franchising Authority will not be bound by the procedures and limitations found in Section 630.080 of this agreement; however, the Franchising Authority will provide the Grantee with thirty (30) days' advanced written notice of its decision to terminate, and will otherwise follow any procedures that may be imposed by Federal, State, or local law, rule, or regulation.
G.
Expense Of Installation. The Grantee agrees that
it will, at its expense, furnish, install, maintain, and keep in proper
adjustment and repair, meters of modern approved type upon the property
of each consumer of gas, that the same shall be read regularly at
intervals of approximately monthly and that the Grantee shall render
statements to each consumer based upon such meter readings in accordance
with the Grantee's filed tariffs. The Grantee shall, upon request
of the Franchising Authority, cooperate in the study of establishment
of joint meter reading and billing with the Utility Department of
the City upon reasonable terms and conditions. The Grantee shall maintain
at its office accurate, complete, and detailed records of such meter
readings, for a period of at least five (5) years. The Grantee, at
its own expense, shall make careful and accurate tests of each meter
at reasonable intervals, or as may otherwise be required by the MPSC,
at specific instances, and shall keep accurate records of the result
of such tests. The Franchising Authority, by its authorized agents
and representatives, shall have the right and authority to make tests
of such gas meters and other equipment and to check the Grantee's
tests and readings of meters at such times as it may see fit, and
without charge, use the Grantee's equipment to make such tests.
H.
Eminent Domain. The Grantee may have powers of eminent
domain and regulation of the method of doing business by the Grantee
as may from time to time be provided for by law, as permitted by Missouri
law. Any lawful exercise of the powers of eminent domain by the Grantee
will be in strict compliance with the provisions of Chapter 523 of
the Revised Statutes of Missouri (2007), and the provisions of any
other codified laws then existing in the State of Missouri at the
time such powers of eminent domain are exercised.
[Ord. No. 2009-23, 5-12-2009]
A.
Conditions Of Occupancy. The natural gas distribution
system installed by the Grantee pursuant to the terms hereof shall
be located so as to cause a minimum of interference with the proper
use of public ways and with the rights and reasonable convenience
of property owners who own property that adjoins any of such public
ways. In installing and constructing the natural gas distribution
system, and any phase thereof, the Grantee will follow all Federal,
State, and local laws, rules and regulations; and the Grantee will
obtain any necessary approval from the governing body of the Franchising
Authority prior to installation and construction. In addition, the
Grantee will comply with all of the Franchising Authority's planning
and zoning and subdivision regulations and building codes, and the
Grantee will cooperate with the Franchising Authority's City
Administrator, Zoning Administrator, and Director of Public Works
in all phases of installation and construction.
B.
Placement Of Natural Gas Distribution System. In addition to the general requirement contained within Subsection (A) above, the natural gas distribution system shall be set so that, at the time such facilities are installed, they will not interfere with any existing water mains or sewer mains or City telecommunication facilities, parks, trees and other landscape plantings, or any other municipal use of the public rights-of-way; provided, however, that the Franchising Authority may, upon written application by the Grantee and for good cause shown, relieve the Grantee on a case-by-case basis of its obligations under this sentence. Additionally, in setting its natural gas distribution system, the Grantee shall make a reasonable attempt not to interfere with any existing facilities of entities lawfully occupying the public rights-of-way. All such Grantee facilities shall also interfere as little as practicable with ordinary travel of the public rights-of-way.
C.
Emergency Excavation. The Grantee may excavate in
the public rights-of-way prior to obtaining a permit therefor in emergency
situations only; provided, however, that the Grantee shall report
all such excavations to the Director of Public Works and apply for
a permit on the next business day following commencement of each such
excavation. For purposes of this subsection, "emergency situations"
are those where the health and safety of the citizens of the Franchising
Authority are in imminent danger. The Grantee shall hold and save
the Franchising Authority harmless from all loss and damage by reason
of such emergency excavations as more fully provided elsewhere in
this franchise.
D.
Work In And Restoration Of Public Ways.
1.
All work in public ways, including restoration thereof, shall be
undertaken pursuant to the Franchising Authority's generally
applicable ordinances, rules, regulations or administrative orders
or any replacements or amendments thereto, provided that any such
amendments or replacements to the above-mentioned items shall not
be destructive of the rights granted in this franchise, and shall
be consistent with the Franchising Authority's lawful police
powers. The Grantee reserves any rights it may have, if any, to challenge
the provisions of any such ordinance, rule, regulation or administrative
order that is amended or replaced subsequent to the effective date
of this franchise that it believes is inconsistent with the applicable
law or its contractual rights under this franchise via any lawful
means then available. However, it is expressly understood that the
Franchising Authority does not concede that any such rights exist,
and the Franchising Authority does not, by this agreement, provide
the Grantee with any additional rights to directly challenge the validity
of any lawful municipal ordinance, rule, regulation or administrative
order that the Grantee would not otherwise have as provided by the
statutes and laws of the State of Missouri, it being understood that
the Franchising Authority has a strong interest in being able to rely
on the validity of all lawful ordinances, rules and regulations passed
by its governing body, or lawfully adopted administrative orders;
and any proposed challenge to an otherwise lawful ordinance, rule,
regulation or administrative order may prejudice the Franchising Authority
or subject it to adverse liability from its residents or other third
parties in one (1) or more ways that cannot be contemplated as of
the effective date of this agreement. Nothing in this paragraph/subsection
regarding the limitation on the Grantee's right to directly challenge
the validity of a lawful ordinance, rule, regulation or administrative
order of the Franchising Authority will be deemed to affect the Grantee's
right, where available by law or contract, to initiate other lawful
procedures to address a perceived violation of the terms of the franchise.
2.
If during the course of the Grantee's construction, operation,
or maintenance, or removal at any time of the natural gas distribution
system there occurs a disturbance of any public way by the Grantee,
at its expense, the Grantee shall replace and restore such public
way to a condition comparable to the condition of the public way existing
immediately prior to such disturbance. The scope of restoration will
include, but not necessarily be limited to, the following: the Grantee
shall refill all trenches in which its distribution system is located
in accordance with applicable City ordinances. The Grantee shall replace
and restore, at no expense to the Franchising Authority, the City-owned
pavement, sidewalks, curbs and grassed areas disturbed, destroyed
or injured by such Grantee work with like materials and to at least
their former condition. If such City-owned pavement, sidewalks, curbs
or grassed areas shall have been laid under any guarantee for their
maintenance and repair for a period of time, the Grantee shall also
keep the restored pavement, sidewalks, curbs and grassed areas in
repair for such period as specified on the permit issued to the Grantee
as authorized or required by applicable City ordinance. In any event,
all of the Grantee's restoration pursuant to this agreement shall
be guaranteed for a period not less than one (1) year. The restoring
of the pavement, sidewalks, curbs and grassed areas shall be subject
to inspection by the Director of Public Works. After the restoration
work has been completed, the Grantee shall promptly notify the Director
of Public Works, in writing, that the same has been done. If, upon
inspection, the Director of Public Works finds such work to be unsatisfactory,
the Director of Public Works may condemn the same and the Grantee
shall repair or replace the work at its cost within a reasonable amount
of time as specified by the Director of Public Works; provided, however,
that no such condemnation shall be made subsequent to the expiration
of the Grantee's obligation to maintain the restored pavement,
sidewalk, curb or grassed area as above provided, for a period not
less than one (1) year. If the Grantee fails, neglects or refuses
to refill such trenches and restore the City-owned pavement, sidewalks,
curbs and grassed areas to at least their former condition within
the time specified in applicable City ordinances, then, after providing
seventy-two (72) hours' notice to the Grantee, the Franchising
Authority may do all of such work at the cost and expense of the Grantee,
for which the Grantee shall reimburse the Franchising Authority within
a reasonable amount of time after the presentation of a bill therefor
by the Franchising Authority. The Franchising Authority shall grant
any request by the Grantee to extend the time to restore the City-owned
pavement, sidewalk, curb or grassed area if the Franchising Authority
determines that performance by the Grantee within the permitted time
was rendered impossible because of events which were beyond reasonable
control of the Grantee. Such extension shall be for the shortest period
necessary to complete the restoration.
E.
Scope Of Excavation. The Grantee shall not open
or encumber, at any one time, any more of the public rights-of-way
than may, in the opinion of the Director of Public Works, be reasonably
necessary to enable it to proceed with advantage in laying or repairing
its distribution system nor shall it permit any such public right-of-way
so opened or encumbered by it in the installation, construction or
repair of its distribution system to remain open or encumbered for
a longer period of time than shall, in the opinion of the Director
of Public Works, be reasonably necessary. In all cases where any such
public right-of-way shall be excavated or encumbered by the Grantee,
it shall take all precautions for the protection of the public usual
in such circumstances, and as may be required by general ordinances
of the Franchising Authority, and the Grantee shall be solely responsible
for all damages to persons and property on account of performing the
aforesaid work in the public rights-of-way, except the Grantee will
not be liable for any loss of sales or profit of such persons or property.
F.
Subordination To Franchising Authority's Use Of Easements. The Grantee's right to use its private and public easements
shall be subordinated to the Franchising Authority's use of such
easements, without causing delay to the Franchising Authority's
project schedule. Nothing in this subsection shall be construed to
affect the Grantee's ability to seek compensation for moving
its facilities at the request of third parties.
G.
Relocation At Request Of The Franchising Authority. Upon its receipt of advance written notice, to be not less than
thirty (30) business days, the Grantee, at its own expense, shall
protect, support, temporarily disconnect, relocate in or remove from
the public way, any property of the Grantee when lawfully required
by the Franchising Authority by reason of traffic conditions, public
safety, street abandonment, freeway and street construction, change
or establishment of street grade, installation of sewers, drains,
gas or water pipes, or any other type of structures or improvements
by the Franchising Authority which are not used to compete with the
Grantee's services. The Grantee shall in all cases have the right
of abandonment of its property, but (subject to Missouri Public Service
Order to the contrary) such abandonment will not relieve the Grantee
of its obligations to provide the services specified herein within
a reasonable period of time to the residents and businesses whose
service is interrupted as a result of the notice from the Franchising
Authority during the term of this Agreement. If funds are available
to any person using such public way for the purpose of defraying the
cost of any of the foregoing, the Franchising Authority shall make
application for such funds on behalf of the Grantee; however, the
preceding provisions will only apply if the availability of such funds
are actually known to exist by the Franchising Authority during any
applicable time period for which they could be applied for. Furthermore,
the Franchising Authority will have no obligation to actively research
or ascertain the availability of such funds on behalf of the Grantee,
and the Grantee will have the responsibility of making the availability
of such funds known to the Franchising Authority in the event that
the Franchising Authority does not otherwise have actual knowledge
of the availability of such funds. For purposes of this agreement,
"actual knowledge" of the Franchising Authority means "direct and
clear knowledge by the City Administrator, or if such office is temporarily
vacant, by the Mayor of the Franchising Authority;" and "actual knowledge"
for purposes of this agreement does not include knowledge of such
information as would lead a reasonable person to inquire further.
In the event that the Franchising Authority makes application for
funds on behalf of the Grantee pursuant to the terms of this paragraph,
the Grantee will reimburse the Franchising Authority for the costs
and expenses incurred by the Franchising Authority in making application
for such funds. Upon any such request to relocate, the Franchising
Authority will provide at its expense sufficient right-of-way to relocate
the desired system. There shall be no liability for temporary failure
to provide service for a reasonable period of time during the period
of relocation, taking into account delays by the City in granting
alternate rights-of-way, labor interruptions and force majeure.
H.
Relocation At Request Of Third Party. The Grantee
shall, on the request of any person holding a building permit issued
by the Franchising Authority, temporarily or permanently relocate
a portion of the natural gas distribution system, provided that:
1.
The expense of such temporary or permanently relocating such portion
of the gas pipes, meters and/or valves is paid by said person, including,
if required by the Grantee, making such payment in advance; and
2.
The Grantee is given reasonable advance written notice to prepare
for such changes. For purposes of this subsection, "reasonable advance
written notice" shall be no less than thirty (30) business days in
the event of a temporary relocation, and no less than one hundred
twenty (120) days for a permanent relocation.
I.
Trimming Of Trees And Shrubbery. The Grantee shall
have the authority to reasonably trim trees or other natural growth
within the public way in order to access and maintain the natural
gas distribution system.
J.
Safety Requirements. Construction, operation, and
maintenance of the natural gas distribution system shall be performed
in an orderly and workmanlike manner. All such work and maintenance
shall be performed in substantial accordance with all applicable federal,
state, and local regulations or other lawful authority, and generally
accepted construction, operation and maintenance standards of the
industry.
K.
Natural Gas Distribution Service To Public Buildings. The Grantee, upon written request, shall provide without charge,
a standard installation and one (1) outlet of natural gas service
to those Franchise Authority's administrative buildings owned
and occupied by the Franchise Authority's fire station(s), police
station(s), and state-accredited K-12 public school(s) that are passed
by its natural gas distribution system. Only the installation shall
be without charge. The Franchising Authority shall be liable for gas
consumed at the tariffs established by the MPSC. The natural gas distribution
service provided shall not be distributed beyond the originally installed
walls without authorization from the Grantee. The Franchising Authority
shall take reasonable precautions to prevent any use of the Grantee's
natural gas distribution system in any manner that results in the
inappropriate use thereof or any loss or damage to the natural gas
distribution system. The Grantee shall not be required to provide
natural gas to such buildings where a non-standard installation is
required, unless the Franchising Authority or building owner/occupant
agrees to pay the incremental cost of any necessary natural gas distribution
system extension and/or non-standard installation. If additional natural
gas lines are provided to such buildings, the building owner/occupant
shall pay the usual installation and service fees associated therewith.
L.
Reimbursement Of Costs. If funds are available to
any person using the public way for the purpose of defraying the cost
of any of the foregoing, the Franchising Authority shall reimburse
the Grantee in the same manner in which other persons affected by
the requirement are reimbursed. If the funds are controlled by another
governmental entity, the Franchising Authority shall make application
for such funds on behalf of the Grantee. The foregoing provisions
of this paragraph will only apply if the availability of such funds
are actually known to exist by the Franchising Authority during any
applicable time period for which they could be applied for. Furthermore,
the Franchising Authority will have no obligation to actively research
or ascertain the availability of such funds on behalf of the Grantee,
and the Grantee will have the responsibility of making the availability
of such funds known to the Franchising Authority in the event that
the Franchising Authority does not otherwise have actual knowledge
of the availability of such funds. For purposes of this agreement,
"actual knowledge" of the Franchising Authority means "direct and
clear knowledge by the City Administrator, or if such office is temporarily
vacant, by the Mayor of the Franchising Authority;" and "actual knowledge"
for purposes of this agreement does not include knowledge of such
information as would lead a reasonable person to inquire further.
In the event that the Franchising Authority makes application for
funds on behalf of the Grantee pursuant to the terms of this paragraph,
the Grantee will reimburse the Franchising Authority for the costs
and expenses incurred by the Franchising Authority in making application
for such funds.
M.
Use Of Gas Mains. The Grantee may distribute gas
to other persons or corporations beyond the corporate limits of the
Franchising Authority by and through gas mains and pipes within the
boundaries thereof, subject, however, at all times, to priority of
right to continued satisfactory and adequate supply of gas to users
and customers within the said Franchising Authority.
N.
Coordination Of Projects. In performing any activities described in this Section 630.030, the Grantee shall coordinate with other utilities or other governmental or private entities engaged in the construction, excavation, installation, maintenance, renovation, repair, adjustment, restoration, relocation and replacement of utility facilities, so that as many of the activities are undertaken and completed as part of the same project as practicable.
O.
Location Of Natural Gas Distribution System. The
Grantee shall promptly, upon requests from time to time made by the
Director of Public Works, provide to the Director GIS maps or plats
(as may be appropriate for the Franchising Authority) of its natural
gas distribution system located in the areas of the City designated
in the requests and shall, upon request, provide such assistance as
may reasonably be necessary in physically locating the natural gas
distribution system.
P.
Technological Improvements. The Grantee shall use
reasonable efforts to incorporate and install technological advances
into its equipment, administration and service, as well as into its
conservation programs, when such advances have been shown to be technically
and economically feasible and safe and beneficial.
Q.
Pipeline Markers. The Grantee shall install natural
gas marker signs in compliance with MPSC regulations.
[Ord. No. 2009-23, 5-12-2009]
A.
Franchise Fee.
1.
Upon commencing natural gas services to any of its customers pursuant to this franchise, whether residential customers, commercial customers, or otherwise, the Grantee shall pay to the Franchising Authority a franchise fee equal to three percent (3.0%) of gross revenues (as defined in Section 630.010(A) of this franchise). The franchise fee shall be for the calendar year. The payment of the franchise fee shall be quarterly and payable within forty-five (45) days following the close of the preceding calendar quarter. The Grantee shall include a statement with the payment indicating the gross revenues for the quarter. In the event that the Grantee's rights under this franchise are transferred or assigned with the Franchising Authority's consent pursuant to the terms stated herein, then any transferee, purchaser, or assignee, as the case may be, will be deemed to be the "Grantee" for purposes of this agreement.
2.
Such franchise fee may be assessed and charged by the Grantee to
the customer.
3.
The period of limitation for recovery of any franchise fee payable
hereunder shall be three (3) years from the date on which payment
by the Grantee is due.
4.
The Grantee shall pay interest on late payments at the rate of eight
percent (8%) per annum.
5.
Such franchise fee is to be in addition to and not in lieu of all
other fees, such as local sales taxes, permits, fees for street cuts,
excavation permits, and personal property taxes (if any); but shall
be in lieu of any local income taxes that may be lawfully adopted
by the Franchising Authority in the future.
B.
Renewal Of Franchise.
1.
The parties acknowledge that the Franchising Authority is classified
as a Missouri city of the Fourth Class as of the effective date of
this agreement. Pursuant to the provisions of § 88.770,
RSMo. (2008), relating to Missouri cities of the Fourth Class, the
Grantee's rights in this franchise may not initially extend beyond
the term of twenty (20) years. Any renewal of this Franchise for subsequent
periods will not be automatic, and must affirmatively be ratified
in accordance with the provisions of § 88.770, RSMo. (2008),
or any other laws as may be in place regarding the renewal of franchises
for gas works in Missouri cities of whatever classification is applicable
to the Franchising Authority at the time that the Franchising Authority
considers and ultimately decides the question of renewal of this agreement.
2.
Notwithstanding anything to the contrary set forth in this Section,
the Grantee and the Franchising Authority agree that at any time during
the term of this franchise, while affording the public appropriate
notice and opportunity to comment, the Franchising Authority and the
Grantee may agree to undertake informal negotiations regarding renewal
of the franchise; however, no renewal of this franchise will be binding
upon either of the parties herein until such time as a proposed renewal
has been affirmatively ratified in accordance with the provisions
of § 88.770, RSMo., or any other laws as may be in place
regarding the renewal of franchises for gas works in Missouri cities
of whatever classification is applicable to the Franchising Authority
at the time that the Franchising Authority considers and ultimately
decides the question of renewal of this Agreement.
C.
Conditions Of Sale.
1.
If a renewal or extension of the Grantee's franchise is denied
or the franchise is lawfully terminated, and the Franchising Authority
either lawfully acquires ownership of the natural gas distribution
system or by its actions lawfully effects a transfer of ownership
of the natural gas distribution system to another party, any such
acquisition or transfer shall be at the price determined pursuant
as the usual and customary fair market value for such a system if
the buyer was an operating natural gas utility that is not municipally
owned. The Grantee and the Franchising Authority agree that in the
case of a final determination of a lawful revocation of the franchise,
the Grantee shall be given at least twelve (12) months to effectuate
a transfer of its natural gas distribution system to a qualified third
party. Furthermore, and subject to the provisions of § 88.770,
RSMo. (2008), the Grantee shall be authorized to continue to operate
pursuant to the terms of its prior franchise during this period, unless
the twelve-month period would extend beyond the initial twenty-year
term, in which case the Grantee's rights under this franchise
must terminate by law in any event immediately upon the expiration
of the initial twenty-year term. If, at the end of the time afforded
to the Grantee to effectuate a transfer to a qualified third party,
the Grantee is unsuccessful in procuring a qualified transferee or
assignee of its natural gas distribution system which is acceptable
to the Franchising Authority, the Grantee and the Franchising Authority
may avail themselves of any rights they may have pursuant to Federal
or State law. It is further agreed that, if the Grantee is allowed
continued operation of the natural gas distribution system during
the time afforded to the Grantee to effectuate a transfer to a qualified
third party pursuant to this section, then such operation shall not
be deemed to be a waiver nor an extinguishment of any rights of either
the Franchising Authority or the Grantee. For purposes of this agreement,
the Franchising Authority will not be deemed to have acquired the
natural gas distribution system due solely to any one (1) or more
of the following circumstances: i) the Grantee has abandoned the natural
gas distribution system; or ii) the franchise has been lawfully terminated
for any reason by either party; or iii) the franchise has not been
renewed as of the agreement's expiration date. In addition, the
Franchising Authority will only be deemed to have acquired the natural
gas distribution system upon execution of a separate writing, approved
by the governing body of the Franchising Authority, evidencing the
Franchising Authority's intention to take exclusive dominion
and control over such natural gas distribution system.
2.
In the event that: i) the Franchise is lawfully terminated for any
reason, or is otherwise not renewed for any reason; and ii) the Grantee
fails to effectuate a transfer of its natural gas distribution system
pursuant to the foregoing provisions; and iii) the Franchising Authority
has not otherwise "acquired" the natural gas distribution system,
then the parties may avail themselves of any rights or remedies they
may have pursuant to federal or State law in regards to the disposition
of the natural gas distribution system, or the parties may otherwise
agree in a separate writing as to the disposition of the natural gas
distribution system.
D.
Transfer Of Franchise. The Grantee's right,
title, or interest in the franchise shall not be sold, transferred,
assigned, or otherwise encumbered, without the prior consent of the
Franchising Authority, and any transfer or assignment of the Grantee's
right, title, or interest may be subject to any requirements, if any,
of voter approval as may be required by law at the time. No such consent
shall be required, however, for a transfer in trust, by mortgage,
by other hypothecation, or by assignment of any rights, title, or
interest of the Grantee in the franchise or natural gas distribution
system in order to secure indebtedness, provided that this sentence
shall not be construed so as to require the Franchising Authority
to approve the purchaser of the system at foreclosure, realization
under a security interest or other successor under a security instrument
of any type as the Grantee. Within thirty (30) days of receiving a
request for transfer, the Franchising Authority shall notify the Grantee
in writing of any additional information it requires to determine
the legal, financial and technical qualifications of the transferee.
If the Franchising Authority has not taken action on the Grantee's
request for transfer within one hundred twenty (120) days after receiving
such request, consent by the Franchising Authority shall be deemed
given, subject to any requirements, if any, of voter approval as may
be required by law at the time.
E.
Abandonment Of Regulation By The MPSC. In the event
that the MPSC, in the Franchising Authority's opinion, significantly
reduces its regulation of or ceases to regulate any activity affecting
any aspect of the Grantee's gas business within the Franchising
Authority (including but not limited to rates for gas services, gas
quality and pressure, metering, billing, gas shut-offs, repair and
construction of the Grantee's facilities, termination and reinstatement
of service, gas for domestic and industrial purposes, transfer of
the Grantee's facilities, service during cold weather, affiliate
relations, gas supply and distribution), the Franchising Authority
shall, to the extent permitted by law, have the right to regulate
any such Grantee activity.
F.
Reports To The Franchising Authority. If the Grantee
notifies the MPSC of any reportable incidents as required by applicable
MPSC regulations or the Grantee's schedules and tariffs, the
Grantee shall contemporaneously notify the Franchising Authority of
any such reportable incidents occurring within the Franchising Authority.
G.
Notification Of Interrupted Service. The Grantee
shall make a good faith effort to notify potentially affected customers
prior to performing any work on its natural gas distribution system
that may result in an interruption of gas service to customers in
the service area.
H.
Compliance With Air, Water, And Noise Pollution Laws. The Grantee shall take measures which will result in its natural
gas distribution system and operations meeting the standards imposed
by applicable City, county, State, and Federal air, water and noise
pollution laws and regulations, and laws and regulations governing
the transportation of hazardous materials. Upon the Franchising Authority's
request, the Grantee will respond to the Franchising Authority's
reasonable questions regarding such measures.
I.
Toll-Free Number For Emergencies. At least thirty
(30) days prior to offering natural gas services to any customers
within the service area, the Grantee shall establish a twenty-four-hour
toll-free number to respond to emergency concerns (such as gas leaks)
raised by its customers. Such toll-free number shall be separate and
distinct from the Grantee's telephone number for non-emergency
matters (such as billing questions), and shall be listed in the local
telephone directories and stated prominently on the Grantee's
customer bills. The Grantee will provide the Franchising Authority
with its emergency call number for notification of the Grantee of
any emergency calls that the Authority or its emergency call system
may receive pertaining to or that may affect the Grantee's system.
J.
Bankruptcy. In addition to all other rights, powers
and remedies available to the Franchising Authority, the Franchising
Authority shall have the separate and distinct right to revoke this
franchise and all the rights, authority, power, privileges and permissions
granted to the Grantee under this franchise, if the Grantee is adjudged
to be bankrupt. However, should the Franchising Authority be prohibited
from revoking this franchise due to the Grantee's bankruptcy,
the Grantee shall, as a means of assuring future payments of franchise
fees and assuring future compliance with all other requirements of
this franchise, provide to the Franchising Authority within thirty
(30) days of an order of a court of competent jurisdiction adjudging
the Grantee to be bankrupt and entitled to the protection of State
or federal bankruptcy laws, a bond in the amount of the franchise
fees paid by the Grantee to the Franchising Authority the previous
year.
K.
Compatibility With Governmental Tariffs, Rules And Regulations. The Franchising Authority and the Grantee recognize that the lawful
provisions of any applicable (1) rules and regulations of the MPSC
and Federal Energy Regulatory Commission ("FERC") and (2) schedules
and tariffs of the Grantee approved by and in effect with the MPSC
and FERC are controlling over any inconsistent provision in this franchise
dealing with the same subject matter. The Grantee shall be affirmatively
obligated to timely notify the Franchising Authority of any filing
with the MPSC or the FERC, or with any proposed rule or order by the
MPSC or FERC for which notice is provided to the Grantee, that can
reasonably be expected to effect the Grantee's provision of service
under this agreement, including but not limited to any rate cases
that may be filed with any regulating agency of the federal or State
government.
[Ord. No. 2009-23, 5-12-2009]
A.
Customer Service Standards. The Grantee shall comply
with customer service standards as set forth by the MPSC.
B.
Customer Privacy. The Grantee shall fully comply
with any provisions regarding the privacy rights of customers contained
in federal or State law.
C.
Customer Contracts. The Grantee shall not enter
into a contract with any customer that is in conflict with the terms
of this franchise. Upon written request, the Grantee will provide
to the Franchising Authority a sample of the customer contract or
service agreement then in use.
[Ord. No. 2009-23, 5-12-2009]
The Grantee agrees that the Franchising Authority, including
its elective and administrative officers, the City Attorney, or the
City's certified public accountants, upon thirty (30) days'
written notice to the Grantee, may review such of its books and records
at the Grantee's business office, during normal business hours
and on a nondisruptive basis, as is necessary to ensure compliance
with the terms of this franchise. Such notice shall specifically reference
the Section of the franchise that is under review, so that the Grantee
may organize the necessary books and records for easy access by the
Franchising Authority. The Grantee shall not be required to maintain
any books and records for franchise compliance purposes longer than
three (3) years. Notwithstanding anything to the contrary set forth
herein, the Grantee shall not be required to disclose information
that it reasonably deems to be proprietary or confidential in nature.
The Franchising Authority agrees to treat any information disclosed
by the Grantee as confidential and only to disclose it to employees,
representatives, and agents thereof that have a need to know, and
in order to enforce the provisions hereof. The Grantee shall not be
required to provide customer information in violation of any law or
rule or regulation of the MPSC.
[Ord. No. 2009-23, 5-12-2009]
A.
Insurance Requirements. The Grantee shall maintain
in full force and effect, at its own cost and expense, during the
term of the franchise, commercial general liability insurance in an
amount that is no less than the maximum liability limits of the Franchising
Authority under applicable state law and related rules and regulations,
and such policy will name the Franchising Authority as an additional
insured. Such insurance shall be noncancellable except upon thirty
(30) days' prior written notice to the Franchising Authority.
The Grantee shall provide a certificate of insurance showing evidence
of the coverage required by this Section.
B.
Indemnification. The Grantee agrees to indemnify,
save and hold harmless, and defend the Franchising Authority, its
officers, boards and employees, from and against any liability for
damages and for any liability or claims resulting from property damage
or bodily injury (including accidental death), which arise out of
the Grantee's construction, operation, or maintenance of its
natural gas distribution system, provided that the Franchising Authority
shall give the Grantee written notice of its obligation to indemnify
the Franchising Authority within ninety (90) days of receipt of a
claim or action pursuant to this Section. If the Franchising Authority
determines that it is necessary for it to employ separate counsel,
the costs for such separate counsel shall be the responsibility of
the Franchising Authority. Notwithstanding the foregoing, the Grantee
shall not indemnify the Franchising Authority for any damages, liability
or claims resulting from the willful misconduct or gross negligence
of the Franchising Authority.
[Ord. No. 2009-23, 5-12-2009]
A.
Notice Of Violation. Except where otherwise provided
in this agreement, in the event that the Franchising Authority believes
that the Grantee has not complied with the terms of the Franchise,
the Franchising Authority shall informally discuss the matter with
the Grantee. If these discussions do not lead to resolution of the
problem, the Franchising Authority shall notify the Grantee in writing
of the general nature of the alleged noncompliance.
B.
The Grantee's Right To Cure Or Respond. The Grantee shall have ten (10) days from receipt of the notice described in Subsection (A): a) to respond to the Franchising Authority, contesting the assertion of noncompliance, or b) to cure such default, or c) in the event that, by the nature of default, such default cannot be cured within the forty-five-day period, initiate substantial steps to remedy such default and notify the Franchising Authority of the steps being taken and the projected date that they will be completed.
C.
Enforcement.
1.
Except where otherwise provided in this agreement, and subject to
applicable Federal and State law, in the event the Franchising Authority
determines that the Grantee is in default of any provision of the
franchise, the Franchising Authority may take any one (1) or more
of the following actions:
2.
Notwithstanding anything herein to the contrary, nothing in this
agreement will preclude the Franchising Authority from immediately
seeking equitable injunctive relief in a court of law if, in the sole
discretion of the Franchising Authority, such relief is necessary
to prevent irreparable harm from breaches or threatened breaches of
the terms of this agreement.
D.
Revocation.
1.
Should the Franchising Authority seek to revoke the franchise after following the procedures set forth in Subsections (A) through (C) above, the Franchising Authority shall give written notice to the Grantee of its intent. The notice shall set forth the general nature of the non-compliance. The Grantee shall have thirty (30) days from such notice to object in writing and to state its reasons for such objection. In the event the Franchising Authority has not received a satisfactory response from the Grantee, or if after having received a response from the Grantee it is not persuaded to forego seeking termination of the franchise, it may then seek termination of the franchise at a public hearing. The Franchising Authority shall cause to be served upon the Grantee, at least thirty (30) days prior to such public hearing, a written notice specifying the time and place of such hearing and stating its intent to revoke the franchise.
2.
At the designated hearing, any party may be represented by counsel
and all parties will have an opportunity to be heard. As soon after
the designated hearing as is practical, the Franchising Authority
will determine, by written findings and conclusions, whether or not
the franchise will be revoked. If available by law, the Grantee may
seek judicial review of any decision made by the Franchising Authority
regarding revocation of this franchise; and such appeal to the appropriate
court must be taken within thirty (30) days of the issuance of the
determination of the Franchising Authority.
E.
Force Majeure. The Grantee shall not be held in
default under, or in noncompliance with, the provisions of the franchise,
nor suffer any enforcement or penalty relating to noncompliance or
default, where such noncompliance or alleged defaults occurred or
were caused by circumstances reasonably beyond the ability of the
Grantee to anticipate and control. Those conditions which are not
within the control of the Grantee include, but are not limited to,
natural disasters, forest fires, civil disturbances, power outages,
labor disputes, terrorist activities, telephone network outages, and
severe or unusual weather conditions which have a direct and substantial
impact on the Grantee's ability to provide natural gas in the
Franchising Authority and which was not caused and could not have
been avoided by the Grantee using reasonable efforts in its operations
to avoid such results. This provision includes but is not limited
to work delays caused by waiting for utility providers to service
or monitor their meters to which the Grantee's natural gas distribution
system is attached, as well as unavailability of materials and/or
qualified labor to perform the work necessary.
F.
Failure To Comply With Section 630.020(F). The provisions and procedures of Subsections (A) through (E) above are not applicable to the Franchising Authority when exercising its rights pursuant to the provisions of Section 630.020(F) of this agreement.
[Ord. No. 2009-23, 5-12-2009]
A.
Franchise Contingent Upon Ordinance And Voter Approval. If required by Missouri Law the effectiveness and enforceability
of this franchise for both parties is contingent upon: i) the approval
of this agreement by the governing body of the Franchising Authority
via a lawful ordinance expressly approving the same; and ii) the approval
of this agreement and accompanying ordinance by the registered voters
within the corporate limits of the Franchising Authority at election
pursuant to § 88.770, RSMo. (2008). If such a vote is not
required by Missouri law then this agreement shall be effective and
enforceable upon adoption of an ordinance authorizing and approving
the franchise by the Franchising Authority. With regards to the ordinance
approving this franchise, it is acknowledged that no such ordinance
will be adopted by the governing body of the Franchising Authority
until such time as the proposed ordinance has been on file with the
Clerk of the Franchising Authority for at least thirty (30) days,
and until such time as a full public hearing has been held thereon.
With regards to the Franchising Authority's obligations to submit
this agreement to the voters, the parties have acknowledged the following:
The Franchising Authority will not be obligated to submit the franchise
and the accompanying ordinance for voter approval at an election unless
the Grantee has filed its unconditional acceptance of this franchise
with the Clerk of the Franchising Authority at least one hundred twenty
(120) days prior to the election, and the franchise and the accompanying
ordinance will not be submitted to a special election unless the expense
of holding the election, as determined by the governing body of the
Franchising Authority, shall have been paid into the City Treasury
by the Grantee. In the event that the governing body of the Franchising
Authority does not approve this franchise by ordinance, or in the
event that the registered voters within the corporate limits of the
Franchising Authority fail to approve the franchise and the accompanying
ordinance after election, then this agreement will immediately be
of no effect, and each of the parties will be released of all obligations
without recourse.
B.
Certificate Of Public Convenience And Necessity. Within a reasonable time after an ordinance authorizing the franchise
is approved by the voters or Franchising Authority, as applicable,
then the Grantee shall file for a certificate of public convenience
and necessity ("CPCN") with the MPSC. If the MPSC does not grant a
CPCN within twenty-four (24) months after the Franchising Authority
grants the franchise to the Grantee and the CPCN does not include
the City, then this agreement shall be null and void.
C.
Actions Of Parties. In any action by the Franchising
Authority or the Grantee that is mandated or permitted under the terms
hereof, such party shall act in a reasonable, expeditious, and timely
manner.
D.
Entire Agreement. This franchise constitutes the
entire agreement between the Grantee and the Franchising Authority.
To be effective, any future amendments to this Franchise must be mutually
agreed to in writing by the parties, and will be subject to any requirements,
if any, of voter approval as may be required by law at the time.
E.
Notice.
1.
Unless expressly otherwise agreed between the parties, every notice
or response required by this franchise to be served upon the Franchising
Authority or the Grantee shall be in writing, and shall be deemed
to have been duly given to the required party when placed in a properly
sealed and correctly addressed envelope: a) upon receipt when hand
delivered with receipt/acknowledgment, b) upon receipt when sent certified,
registered mail, or c) within five (5) business days after having
been posted in the regular mail.
a.
The notices or responses to the Franchising Authority shall be addressed
as follows:
|
City of Lake Ozark
Attn: City Administrator
P.O. Box 370
Lake Ozark, MO 65049
|
b.
The notices or responses to the Grantee shall be addressed as follows:
|
Missouri Gas Utility, Inc.
Attn: President
7810 Shaffer Parkway, Suite 120
Littleton, CO 80127
|
|
with a copy to:
|
|
Missouri Gas Utility, Inc.
Attention: General Counsel
7810 Shaffer Parkway, Suite 120
Littleton, CO 80127
|
2.
The Franchising Authority and the Grantee may designate such other
address or addresses from time to time by giving notice to the other
in the manner provided for in this Section to the last known address
of the Franchising Authority or the Grantee.
F.
Descriptive Headings. The captions to Sections contained
herein are intended solely to facilitate the reading thereof. Such
captions shall not affect the meaning or interpretation of the text
herein.
G.
Severability. If any Section, sentence, paragraph,
term, phrase, or provision hereof is determined to be illegal, invalid,
or unconstitutional, by any court of competent jurisdiction or by
any State or Federal regulatory authority having jurisdiction thereof,
such determination shall have no effect on the validity of any other
Section, sentence, paragraph, term, phrase or provision hereof, all
of which will remain in full force and effect for the term of the
franchise, or any renewal or renewals thereof.
H.
Governing Law And Venue. This franchise agreement
will be construed and enforced under the laws of the State of Missouri
and the rules and regulations of the MPSC, which shall supersede and
control any provision to the contrary in this agreement. All parties
to this franchise agreement agree that the primary venue for any court
proceeding of any nature that may arise for the enforcement of or
collection pursuant to this franchise agreement will be in the County
of Polk, in the State of Missouri, and all parties hereby submit to
the jurisdiction of the courts of Polk County, Missouri, as the venue
for adjudication of any disputes arising from the enforcement of or
collection pursuant to this franchise agreement.
I.
Waiver. All parties to this agreement agree that
the failure of any party to this agreement to strictly enforce any
term of this agreement will not ever result in a waiver of such party
to subsequently enforce the conditions of this agreement.
J.
Effective Date. The effective date of this franchise
is the date upon which the franchise and the accompanying ordinance
approving the same are adopted by the Board of Aldermen and approved
by the Mayor of the Franchising Authority, and by the registered voters
within the corporate limits of the Franchising Authority, but such
voter approval shall be necessary only if it shall be determined that
such approval is required pursuant to the provisions of applicable
law. This franchise will remain effective for a term of twenty (20)
years, including the effective date.
