Loading...
Exh 8CAGENDA ITEM #SC OCTOBER 24, 2UU5 CITY OF ATLANTIC BEACH CITY COMMISSION MEETING CITY ATTORNEY REPORT AGENDA ITEM: Court action for removal by Ferrellgas of abandoned under- ground natural gas tanks in City rights-of--way in the Royal Palms subdivision SUBMITTED BY: Alan C. Jensen, City Attorney ~~ DATE: October 6, 2005 BACKGROUND: Ferrellgas operates a natural gas franchise in the City of .Atlantic Beach as a successor to Peoples Gas, and under a franchise initially awarded in 1989. Part of their operation includes underground 1000 gallon tanks, a few of which are still operational and providing gas to residents and/or businesses, but most of which have been abandoned. It is necessary for these abandoned tanks to be removed for infrastructure improvements planned in the Royal Palms subdivision (see attached memo from Rick Carper dated Sept.30, 2005). Communications with Ferrellgas have been ongoing for nearly a year, concluding with a letter from the City Attorney dated August 25, 2005, copy of which is attached. No response whatsoever has been received from Ferrell- gas to the August 25 letter. In order to prevent delay in the planned improvements in Royal Palms, it may be necessary to initial legal proceedings against Ferrellgas to require them to remove the underground tanks at their. expense. RECOMMENDATION: The City Attorney recommends that the City Commission authorize filing a lawsuit against Ferrellgas seeking a court order requiring the removal of their abandoned under- ground tanks at their expense. Also authorize the Mayor or City Manager to sign a letter to the City Attorney reflecting the direction given by the City Commission and giving instruction to proceed with the lawsuit. BUDGET: Attorney fees and costs should be covered under the legal budget for 05/06. There is no privision for the recovery of legal fees from Ferrellgas in the franchise agreement, but court costs will be recoverable when the City prevails in the lawsuit. REVIEWED BY CITY MANAGER: AGENDA ITEM #3C OCTOBER 24, 2005 Memorandum -September 30 2005 From: Rick Carper, P.E., Public Works Director To: Jim Hanson, City Manager Subj: Royal Palms Subdivision Infrastructure Improvements Jim, the following is a summary of the proposed capital improvements to storm water, potable water and sanitary sewer required to 1) restore systems to design capabilities, and 2) move all utilities into the road right of way. Background: The Royal Palms subdivision was designed in 1960, in two phases (north of Plaza and Plaza to Cutlass). In numerous instances, the storm sewer (seven separate pipe runs, affecting 80 plus lots), and sanitary sewer (eleven separate pipe runs, affecting 90 plus lots) were routed through back and side yards without benefit of utility easements. Many of these existing piping runs could not be repaired in the event of a failure because of structures (homes, garages, driveways, etc.) that have been built over the piping since installation. Upgrades to portions of the potable water piping systems were completed in the 1990's. Because of the age of the system and the materials used for construction (corrugated metal pipe for storm sewer and vitreous clay pipe for sanitary sewer), failures are becoming more common with every year. As a result of the decay of the existing infrastructure, aRoyal Palms Infrastructure Improvement Project has been included in the Capital Improvement Plans for Public Works (storm sewer) and Public Utilities (sbnita~y sewer and potable water). The goal is to begin design of these improvements in FY 2007, such that this project can be funded for construction following completion of the Hopkins Creek Regional Retention Pond construction in FY2007. The presence of thirty-five abandoned 1000-gallon natural gas tanks in the City Right of Way (see attachment for tank locations) within the Royal Palms subdivision will greatly complicate the engineering and construction level of difficulty for this project. Gravity systems, such as storm and sanitary sewer, cannot be routed around the tanks, and the cost differential to pipe the pressurized water system around the tanks could be substantial. Rick Carper Cc: Alan Jensen, City Attorney ALAN C.1EN~EN Attorney at Law 935 North Third Street Post Office Box 50457 Jacksonville Beach, Florida 32240-0457 telephone (904) 246-2500 August 25, 2005 Trenton D. Hampton, Esquire Ferrellgas One Liberty Plaza Liberty, MO 64068 RE: City of Atlantic Beach, Florida Dear Mr. Hampton: AGENDA ITEM #SC OCTOBER 24, 2005 Facsimile (904) 246-9960 Mail: AJensenLaw~aol.com You will recall that I am the City Attorney for Atlantic Beach, Florida. We have had prior communications, including telephone conversations, correspondence, a-mails and facsimiles, the last being on August 4, 2005, when I faxed to you a copy of the Franchise Agreement under which Ferrellgas is operating within the city limits of Atlantic Beach. You will also recall that paragraph 2 of the Franchise Agreement states as follows: "2. Whenever it shall be reasonably necessary for the convenience of the City and the safety and well-being of the public that the pipes, mains, conduits and appurtenant machinery and equipment located on or under the streets and highways of the City be removed or. reset or relocated, upon reasonable written notice from the City to the Company, the Company shall remove the same from such streets or highways and reset or relocate the same as required by the City or its authorized officer, at the expense of the Company." Please accept this letter as reasonable written notice from the City of Atlantic Beach to Ferrellgas to remove the approximately thirty-seven (3~ underground tanks that have been abandoned within the City rights of way. The City is preparing for a major water, sewer and stormwater rehabilitation in the area where these tanks are located and they would be a substantial interference with the City work in that area. Please be advised that all such tanks must be removed no later than August 31, 2006. ' I would further request that you confirm in writing to me on or before September 30, 2005, that your company will in fact remove all such tanks by the above requested date. Obviously, the failure of Fermllgas to timely remove the tanks as requested, for the reasons set forth above, and to I Trenton D. Hampton, Esquire August 25, 2005 P 2' age AGCNDA ITI;NI #SC OCTOBIrR 24, 2UQ5 .~ provide confirmation by the end of next month that such removal will be accomplished will result in the City taking whatever ai~tion is necessary to enforce the terms of the Franchise Agreement under which your company is operating within the City of Atlantic Beach. Hopefully, this will not be necessary and removal of the tanks will be timely completed. If you have any questions at all in this regard, please don't hesitate to contact me, Otherwise, I would appreciate your prompt attention this matter and look forward to hearing back from you soon. Thank you, r' .. ACJ/sky ' Cc: James R. Hanson, City Manager Rick Carper, Public VV~prks Director ,~: ~, ~` . Very truly yours, "