r 1. f i BILL # 162 ORDINANCE # 139 AN ORDINANCE GRANTING A FRANCmSE BY THE CITY OF HIGIILANDVILLE, COUNTY OF CHRISTIAN COUNTY, MISSOURI, TO OZARK ENERGY PARNERS, LLC, IT'S SUCCESSORS AND ASSIGNS, THE RIGHT TO FURNISH, SELL, AND DISTRIBUTE GAS TO THE CITY AND TO ALL PERSONS, BUSINESSES AND INDUSTRIES WITHIN THE ClfTY AND THE RIGHT TO ACQUIRE, CONSTRUCT, INSTALL, LOCATE, MAINTAIN, OPERATE AND EXTEND INTO, Wn'HINANDTHROUGHSAID CITY ALL FACILInES RESONABLY NECESSARY TO FURNISH, SELL, AND DISTRIBUTE GAS TO THE CITY AND TO ALL PERSONS, BUSINESSES AND INDUSTRIES WITHIN THE CITY AND IN THE TERRITORY ADJACENT THERETO ANDTHE RIGHT TO MAKE RESONABLE USE OF ALL STREETS AND OTHER PUBLIC PLACES AS MAY BE NECESSARY, AND FIXING THE TERMS AND CONDITIONS THEREOF. **************** BE IT ORDAINED BY THE BOARD OF ALDERMEN OFTHE CITY OF HIGHLANDVILLE, OF CHRISTIAN COUNTY, MISSOURI. ARTICLE I Definitions For the purpose ofthis franchise, the following words and phrases shall have the meaning given in this article. When not inconsistent with the context words used in the RECEIVED AUG 2 4 Nm present tense include the future tense, words in the plural number include the singular number, and words in the single number include the plural number. The word "shall" is mandatory and"may" is permissive. Words not defined in this article shall be given common and ordinary meaning. 1.1 "Board of Aldermen" refers to and is the legislative body ofthe City of Highlandville. 1.2 "Company" refers to and is Ozark Energy Partners, LLC., a Missouri corporation formed to provide natural gas service in Missouri, and it's successors and assigns. 1.3 "Distribution Facilities" refer to andareonly those facilities reasonably necessary to provide gas within the City. 2 1 1.4 "Facilities" refer to and areall facilities reasonably necessary to provide gas into, within and through the City and include pipelines and mains, service lines, meters, regulator slations, plants and equipment 1.5 "Gas" or "Natural Gas" refers to and includes such gaseous fuels as natural, artificial, synthetic, liquefied natural, liquefied petroleum, manufactured, or any mixlure thereo[ 1.6 "Public Service Commission" refers to and is the Public Service Commission of the Stale of Missouri. 1.7 "Revenues" refer to and are those amounts of money which the Company receives from its residential and commercial customers within the City for the sale and transport of gas under rates, temporaiy or permanent authorized by The Public Service Commission of the State ofMissouri and represents amolmts billed under such rates as adjusted for refunds, lhe net write-offof uncollectible accounts, corrections orother regulatory adjustments. 1.8 * "Streets and Other Public Places" refer to and are streets, alleys, viaducts, bridges, roads, lanes, easements, public ways and other public places in said City. 1.9"City" refbrs to and is the City of Highlandville Christian County, Missouri, and includes the territory as currently is or may in the future be included within the boundaries of tile City of Highlandville. ARTICLE I[ GRANTOFFRANCHISE 2.1 Grant of Franchise. The City hereby grants to the Company, for the period specified and subject to the conditions, terms and provisions contained in this Ordinance, the right to transport sell and distribute gas to the City and to all persons, businesses and industries within the City; the right to acquire, construct install, locate, maintain, operate and extend into, within and through the Cig all -2- t b Facilities reasonably necessary to provide gas to the City and to all persons, businesses and industries within the City and in tile territory thereto; and the right to make reasonable use o all streets and other places as may be necessary to carry out the terms ofthe ordinance. 22 Terms ofFranchise. This franchise ordinance shall not be effective unless and until the Grant of Rights, permission and authority herein contained be approved by a majority ofthe electors voting thereon at an election, pursuant o another ordinance and the franchise herein contained shall be and continue in force and effect for a period oftwenty (20) years from the date of such election. Any franchise granted hereunder shall be non- exclusive. ARTICLE m FRANCHISE FEE 3.1 Franchise Fee. In consideration forthe rant ofthis franchise, the Company shall collect and remit to the City a sum not to exceed zero % 1st year, 2Hd year 2%, 3rd yea and thereafter 5% ofthe sales revenues derived annually from the sale of gas within the City, excluding the amount received from the Cily itself'for gas service furnished it. Quarterly franchise fee payments shall be made within thirty 00) days after the end of each calendar quarter. Payments at the beginning and end ofthe franchise shall be prorated. Franchise fee shall waived for gas sales during the first 12 calendar months in which Company provides gas service to customers within the Cily. 3.2 Franchise Fee Pavment in Leiu of Other Fees. Payment ofthe fianchise fee bythe Company is accepted by the City in leiu of any occupancy tax, license tax, permit charge, inspection fee or similar tax, assessment or excise upon the pipes, mains, meters, or other personal property ofthe Company or on the privilege of doing business or in connection t but does not exempt the Company from any lawful taxation upon its real property or any other tax not related to the franchise or the physical operation thereof ARTICLE IV CONDUCTOFBUSINESS 4.1 Conduct of Businesi The Company may establish, from time to time, such rules, regulations, terms and conditions governing the conduct of its business as shall be reasonably necesseuy to enable the Company to exercise its rights and perform its obligations under this franchise; provided, however, that such rules, regulations, terms *and conditions shall not be in conflict with the laws oflhe State ofMissouri. 4.2 Tariffs on File. The Company shall keep on file in its nearest office copies of all its tariffs currently in effect and on file with the Public Service Commission ofMissouri. Said tariffs shall be available for inspection by the Public. 4.3 * Compliance with PSC Regulations. The company shall comply with all rules and regulations adoptedby the Public Service Commission ofMissouri. 4A Compliance with Companv Tariffs. The Company shall furnish gas within the City to the City and to all persons, businesses and industries within the City at the rates and under the terms and conditions set forth in its tariffs on file with the Public Service Commission of Missouri. 4.5 ApplicabiliN of Companv Tariffs. 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 of Missouri are controlling over any inconsistent provision in this franchise dealing with the same subject matter. -4- ARTICLE V CONS™UCTION, INSTALLATION & OPERATION OF COMPANY FACILKIES 5.1 Incation of Facilities. Company facilities shall not interfere with the City's water mains, sewer mains or other municipal use of streets and other public places. Company facilities shall be located so as to cause minimum interference with public use of streets and other public places and shall be maintained in good repairand condition. 5.2 Excavation and Construction. All construction, excavation, maintenance and repair work done by tile Company shall be done in a timely and expeditious manner which minimizes the inconvenience to the public and individuals. All such construction, excavation, maintenance and repair work donebythe Company shall comply with all fedeml, stateand local codes. All public and private property whose use conforms to restrictions in easements disturbed by Company construction or excavation activities shall be restored as soon as practical by the Company at its expense to substantially its former condition. The Company shall comply with the City's requests for reasonable and prompt action to remedy all damage to private property adjacent to streets or dedicated easements where the Company is performing construction, excavation, maintenance or repair work. The town reservesthe right to restore property and remedy damages causedby Company activities at the expense of the Company in the event the Company fails to perform such work within a rekdonable time after Notice from the City. 5.3 Relocation of Company Facilities. Ifat any time the City requests the Company to relocate any distribution gas main or service connection installed or maintained in streets or other public places in order to pennit tile City to change street grades, pavements, sewers, water mains or other City works, such relocation shall be made by the Company at its expense. The Company is not obligated hereunder to relocate any facilities at its expense which were installed in private easements -5- M obtained by the Company, the underlying fee ofwhich was, at some point subsequent to installation, transfened to the City. Following relocation, all property shall be restored lo substantially its fbrmer condition by the Company at its expense. 5.4 Service to New Areas. If during the term of this franchise the boundaries of the City are expanded, the Company shall extend service to the newly incorporated areas. Service to annexed areas shall be in accordance with the terms of this Banchise agreement and the Company's tariffs, rules and regulations then in effect Company shall not be required to extend service if Company is unable to obtain an adequate gas supply to serve additional customers, nor where such extension is not economically feasible forthe Company. 5.5 Restoration of Service. In the event the Company's gas system, or any part thereof, is partially or wholly destroyed or incapacitated, the Company shall use due diligence to restore its system to satisfactory service within the shortest practicable time. 5.6 * Supply and Ouality of Service. The Company shall make available an adequate supply of gas to provide service in the City. The Company's facilities shall be ofsunicient quality, durability, and redundancy to provide adequate and efficientgas service to the City. 5.7 Safety Regulations bv the City. The City reserves the right to adopt, from time to time, reasonable regulations in the exercise of its police power which are necessary to ensure the health, safety and welfare of the public, provided that such regulations are not destructive of the rights granted herein. The Company agrees to comply with all such regulations, in the construction, maintenance and operation of its facilities and in the provision ofgas within the City. 5.8 Inspection. Audit and Oualitv Control. The City shall have the right to inspect, at all reasonable times, any portion ofthe Company's system used to serve the City and its residents. The City also shall have the right to inspect and conduct an audit of Company records relevant to -6- compliance with any terms of this ordinance at ali reasonable times. The Company agrees to cooperate with the City in conducting the inspection and/or audit to correct any discrepancies affecting the City's interest in a prompt and efficient manner. 5.9 Liabilitv. The Company shall hold said City harmless from all liability imposed upon it on account of injury or damage to person or properly caused by Company, its contractors, agents or employees in the course ofor in connection with the installatioi removal, operation or maintenance ofpipelines and mains, service lines, meters and other utility equipment in public places in the City in the exercise of any ofthe rights and privileges conferred by this fmnchise. ARTICLE I ASSIGNMENT: SAWNGS CLAUSE. AMENDMENT 6.1 Assignment Nothing in this Oidinance shall prevent the Company from assigning its rights under this franchise. Any successors or assigns shall notify the City by a simultaneous informational filing with the City Clerk all documents required by the Missouri Public Service Commission to authorize changeofcontrol of Company. All successors and assignees areboundbythetenns oflhis franchise agreement 6.2 Savings Clause. If any portion of this franchise Ordinance is declared illegal or void by a COM# of competent jurisdiction, the remainder of the Ordinance shall survive and not be affected thereby. -7- .. with the physical operation thereof ARTICLE VII EXPIRATION OF FRANCHISE OR CONDEMNATION; RIGHT OF FIRST PURCHASE 7.1 Expiration of Franchises: Purchase or Condemnation. If at any time of expiration ofthe franchise granted under this Ordinance no extension or renewal had been negotiated between the City and the Company, the Company shall have the right to remove it's distribution facilities from the streets and other public places, but only after the City has had sufficient time to purchase or condemn said facilities. In removing it's facilities, the Company shall remove in a workmanlike manner, at the Company's expense, from the streets and other public places all distribution facilities belonging to the Company which are not purchased be the City at the expiration ofthe franchise. All public property shall be restored by the Company to it's former condition to the extent practicable, after said removal. Read this ittime and 1 time unanimously andpassed bythe Board ofAldermen econc This 45 1 day of , &00 4. ATTEST \*dUL b[ Izu'n££427 - Jf J#an Reynold, City Clerk Paul Weeks, Mayor 4 Approvedthis &555 day of (g , &08*· ATIEST: J8an Reynolfls, City Clerk Paul Weeks, Mayor