01-05
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RESOLUTION NO. 01-05
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF
CLEARWATER, FLORIDA, ACCEPTING THE FRANCHISE,
PRIVILEGE AND CONCESSION OF THE CITY OF LARGO, FLORIDA,
FOR THE PURPOSE OF FURNISHING GAS WITHIN THE CITY OF
LARGO AND TO ITS HABIT ANTS, AND APPROVING THE
INTERLOCAL AGREEMENT RELATED THERETO; PROVIDING AN
EFFECTIVE DATE.
WHEREAS, on April 17, 2001 the City of Largo, Florida approved an interlocal
agreement with the City of Clearwater, a copy of which is attached to this resolution and
incorporated herein by reference, granting the City of Clearwater a franchise for the
purpose of furnishing gas within the City of Largo; and
WHEREAS, the terms and conditions of the franchise and the interlocal
agreement are acceptable, and now, therefore,
BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF
CLEARWATER, FLORIDA:
Section 1. The terms and conditions of the gas system franchise, privilege and
concession granted by the City of Largo, Florida is hereby accepted, and the City
Commission of the City of Clearwater does hereby agree to comply with the terms and
conditions of the franchise and interlocal agreement and with all reasonable ordinances
adopted by the City of Largo not inconsistent with the franchise.
Section 2. This resolution shall take effect immediately upon adoption. Upon
adoption of this resolution, the City Clerk shall deliver a certified copy to the City Clerk
of Largo.
PASSED AND ADOPTED this ~day of May
, 2001.
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Brian J. AunV '
Mayor-Commissioner
Approved as to form:
Attest:
rr!~
I e C. Hayman
ssistant CIty Attorney
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Resolution No, 01-05
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INTERLOCAL AGREEMENT REGARDING GAS SERVICE
BETWEEN THE CITY OF LARGO, FLORIDA
AND THE CITY OF CLEARWATER, FLORIDA
THIS AGREEMENT, made and entered into this _ day of
2001, by and between the City of Largo, Florida, a Florida municipal corporation, by
and through its City Commission (herein "LARGO") and the City of Clearwater, a
Florida municipal corporation, by and through its City Commission (herein
"CLEARWATER").
WITNESSETH:
WHEREAS, it is in the best interests of the citizens of LARGO to be provided gas
service whenever and wherever feasible; and,
WHEREAS, pursuant to Chapters 166 and 180, Florida Statutes, CLEARWATER
has the power and the present capability to provide such gas services in LARGO; and
WHEREAS, LARGO and CLEARWATER wish to set forth their agreement with
respect to the provisions of such gas service to those areas within the corporate limits
of LARGO and LARGO d.:;sires by virtue hereof to grant a franchise to CLEARWATER
pursuant to the provisions of the Florida Interlocal Cooperation Act of 1969, as
amended.
NOV", THEREFORE, for value and other consideration, it is agreed:
SECTION 1. INTERLOCAl AGREEr-1ENT.
The parties aCknowledge that CLEARWATER has the legal authority pursuant to
Florida Statutes to provide gas service and, further, that LARGO, upon appropriate
exercise of its powers could also provide such service. LARGO and CLEARWATER have
determined it is in the best interests of both parties and their citizens for CLEARWATER
to provide gas service within the corporate limits of LARGO as defined herein.
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SECTION 2. RECITALS.
The recitals and findings contained above are hereby incorporated within this
agre-2ment in full.
SECTION 3. TERM; GRANT; DEFINITION OF GAS.
For a period of fifteen (15) years from the effective date of this agreement,
LARGO, its successors and assigns, do hereby agree and give and grant to
CLEARWATER, its successors and assigns, any necessary right and authority to
exercise the power to furnish gas and to construct, operate and maintain within the
corporate limits of LARGO, all facilities required by CLEARWATER to supply gas to
LARGO, its inhabitants and the places of business located within LARGO's corporate
limits and other customers and areas now or hereafter supplied, or to be supplied, gas
by CLEARWATER. If CLEARWATER wishes to renew this Agreement for another fifteen
(15) year term, it shall provide written notice to LARGO at least one hundred-eighty
(180) days and no more than three-hundred sixty five days prior to the termination
of the term of this Agreement. If LARGO agrees to CLEARWATER'S notice to renew
this Agreement, LARGO shall provide written notice within ninety (90) days of receipt
of CLEARWATER's notice. LARGO's failure to provide such notice shall constitute a
denial of CLEARWATER's request and this Agreement shall then expire at the end of
the initial term. If the parties mutually agree to the renewal of this Agreement, the
Agreement shall continue for another fifteen (15) year term, otherwise this Agreement
shall expire at the end of the initial term of this Agreement.
The word "Gas" shall mean natural gas and/or commingled gas which is
distributed in pipes. It shall not mean bottled gas or any other fuel; however, nothing
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herein shall be interpreted to prohibit CLEARWATER from engaging in the sale of liquid
petroleum (propane) gas.
SECTION 4. RATES.
The rates, charges and fees to be charged by CLEARWATER for Gas service
within the corporate limits of LARGO during the term of this agreement shall be as
provided in CLEARWATER's standard, system-wide rate schedule now or hereafter
approved by CLEARWATER's City Commission, or as modified by the CLEARWATER
Manager, or other designated CLEARWATER official, to the extent CLEARWATER
Manager, or other designated CLEARWATER official, is expressly authorized to approve
changes to such rates, charges, and fees, or such other agency of the State of Florida
as may have proper jurisdiction over such rates and charges of CLEARWATER under
the general laws of the State of Florida, or CLEARWATER's charter and ordinances.
Such rate schedule shall be no greater than the rate schedule applied to rate payers
within the corporate limits of CLEARWATER.
SECTION 5. ANNEXATION.
In the event of the annexation of any territory to the present corporate limits
of LARGO, such annexed territory and all portions of the Gas system of CLEARWATER
located therein shall become subject to all of the terms and conditions of this
agreement as of the time such annexation becomes effective. It shall be the
responSibility of LARGO to notify CLEARWATER in writing within thirty (30) days after
the effective date of every such annexation. CLEARWATER shall implement such
annexation within thirty (30) days of the receipt of the notice from LARGO.
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SECTION 6. EXTENSION OF SERVICE.
In consideration of the rights granted under this franchise and the duration of
this franchise, CLEARWATER agrees that its facilities to be installed within the
corporate limits of LARGO will be expanded to provide service to new customers on the
terms and conditions hereinafter set forth. Gas service shall be extended to customers
desiring said service based on a feasibility formula. Such formula shall be the formula
currently in effect system-wide as then administered by CLEARWATER.
SECTION 7. FORCE MAJEURE.
In the event by act of God, strike, riot, public enemy or other calamity, or
restriction in the supply of Gas beyond the control of CLEARWATER or its interstate
supplier or by reason of regulation exerted by the Florida Public Service Commission
or the Federal Energy Regulatory Commission or other regulatory body having
. jurisdiction in the premises, the supply of the Gas should be interrupted,
CLEARWATER shall, nevertheless, continue to supply the available Gas to such
customers as it is possible, shall employ its full services to remedy such deficiency of
Gas supply, and shall resume complete Gas service when that is possible.
SECTION 8. COMPETITION.
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As a further consideration of this interlocal agreement and franchise granted
hereunder, LARGO agrees not to engage in the business of distributing and selling Gas
during the life of this agreement or any extension thereof in competition with
CLEARWATER, its successors and assigns, in the service territory within LARGO
delineated by the Florida Public Service Commission as CLEARWATER's service territory
by PSC Order #OO-0371-PAA-GU. CLEARWATER's service territory is shown on Exhibit
"A" attached hereto and incorporated herein. Pursuant to Sections 6 and 12 hereof,
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CLEARWATER and LARGO have agreed to a certain extension of service policy. In the
event LARGO desires to provide Gas service where CLEARWATER has notified LARGO
in writing said areas do not qualify under the feasibility formula, LARGO may provide
CLEARWATER notice of its intent to provide such Gas service in said areas.
CLEARWATER shall have sixty (60) days after receipt of said notice to review its
decision not to provide Gas service to said areas and to further meet with LARGO
regarding said service. In the event CLEARWATER has not delivered written notice to
LARGO with,in this sixty (60) day period that CLEARWATER shall provide Gas service
to said areas, LARGO may provide Gas service in said defined areas thereafter.
SECTION 9. TERMINATION OF AGREEMENT.
Upon expiration of this agreement, CLEARWATER shall have the right, privilege
and option of removing all piping and equipment installed or maintained by
. CLEARWATER in accordance with this agreement. In the event of the removal of such
equipment, CLEARWATER shall repair all of LARGO's and customers' property to the
same condition as theretofore existed. CLEARWATER shall also have the right to sell
any or all of its piping and equipment to LARGO or a third party at the time of
termination or subsequent thereto.
SECTION 10. FRANCHISE FEE.
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In consideration for the granting of this franchise and the use of the rights-of-
way, easements and other public places allowed hereunder, and effective the first day
of the month after approval by LARGO of this agreement, LARGO shall be entitled to
receive from CLEARWATER a franchise fee which will equal six percent (6%) of the
gross receipts from the sale of Gas within the corporate limits of LARGO for the term
of this franchise. Payment of the franchise fee by CLEARWATER to LARGO shall be
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made for each quarter no later than the forty-fifth (45th) day after the end of each
quarter.
Gross receipts, for purposes of computing such franchise fee, includes all
revenues received by CLEARWATER, or any affiliated entity, from or in connection with
the distribution of Gas in the City of LARGO and the transmission of Gas from and
through the City of Largo by parties other than Clearwater pursuant to the terms of
this Franchise; provided, however, gross receipts shall not include monies for Gas
service or a component thereof paid by customers to a third party, unaffiliated with
CLEARWATER and where CLEARWATER receives no payment from the third party or
the customer. "Transmission of Gas" as used in this Section shall mean the
transmission of natural gas and/or commingled gas through lines operating at a
pressure of one hundred (100) pounds per square inch or above.
SECTION 11. FAVORED NATIONS.
In the event CLEARWATER shall hereafter accept a franchise from any other
governmental entity with any provision more favorable to the governmental entity than
contained in this franchise where all other conditions of the two franchises are
substantially similar, then CLEARWATER shall notify LARGO and CLEARWATER shall be
obligated upon written request of LARGO to amend this franchise to incorporate said
provision. To the extent that any federal or state statute, rule, regulation, or any
other law is enacted, adopted, repealed, amended, modified, changed or interpreted
in any way during the term of this Agreement so as to enhance LARGO's ability to
regulate CLEARWATER and the Gas system, or allow LARGO to increase the franchise
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fee, LARGO and CLEARWATER shall negotiate in good faith modifications to this
Agreement to reflect such enactment, adoption, repeal, amendment, modification,
change or interpretation.
SECTION 12. SERVICE STANDARDS; EXTENSION POLICY.
Subject to the parameters of feasibility as set forth hereinbelow, CLEARWATER,
its successors and assigns shall furnish twenty four (24) hours of continuous service
each and every day to any customer within LARGO desiring the same and failure upon
the part of CLEARWATER to: furnish Gas as herein proVided for any cause within the
control of CLEARWATER for a period of seventy-two (72) hours; and/or other breach
of term hereof, either not being corrected within thirty (30) days after written notice
by LARGO thereof may act as a forfeiture of this franchise in the discretion of LARGO.
CLEARWATER shall have the opportunity to be heard by LARGO's Commission at a duly
convened meeting of the Commission prior to consideration of anysuch forfeiture.
As provided in Section 6 hereof, CLEARWATER herein, its successors and
assigns, shall not be required to lay facilities or equipment beyond such point as it
determines to be economically unfeasible, and unless the revenue from such additional
facilities or equipment shall warrant such installation on a basis of reasonable
compensation or return on CLEARWt\TER's investment. CLEARWATER covenants and
agrees that it will not arbitrarily or unreasonably refuse to make extensions when
requested to do so by LARGO.
SECTION 13. COSTS; OVJNERSHIP; REPAIRS; RELOCATION.
CLEARWATER shall install the necessary facilities or equipment at its own cost
and expense and same shall be and remain the property of CLEARWATER; and
CLEARWATER's facilities or equipment and other physical properties used in connection
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with the furnishing of Gas under this franchise shall be free from any ad valorem tax
of LARGO as long as the same remains the property of CLEARWATER, except as
otherwise provided by applicable Florida Statute or applicable Court decision adopted
after date of execution hereof. The mains shall be laid underground and CLEARWATER
shall re-pave or re-Iay, as promptly as possible, all streets, lanes, alleys, sidewalks,
squares, or public places dug or disturbed by it in the installation of said mains or for
any other purpose attending such work, and it shall repair and restore such streets,
lanes, alleys, sidewalks and publiC places to their former and safe condition and with
the same quality of material or its equivalent as was existing before said work
commenced. In all cases the repair work shall be made passable to traffic during
conduct of such work as soon as physically possible. Prior to closing of a street, in
part or in whole, CLEARWATER shall notify and consult with LARGO's City Engineer;
provided, however, in the case of an emergency, CLEARWATER shall only be required
to notify LARGO's City Engineer. Should CLEARWATER neglect or refuse to restore or
repair without delay after completion of installation and after ten (10) business days
written notice, any streets, alleys, lanes, squares, sidewalks or public places which
may have been excavated, dug or disturbed by it, its employees or agents, then
LARGO shall have such repairs and restoration done and the expense incident thereto
shall be paid by CLEARWATER.
Should, in connection with the doing of any public improvement or other
exercise of the powers of LARGO, it become necessary or desirable to relocate installed
facilities of CLEARWATER, CLEARWATER covenants and agrees to promptly, at its own
expense, relocate said facilities. Prior to requiring CLEARWATER to relocate, LARGO
shall give CLEARWATER written notice of such requirement and the opportunity to be
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heard by LARGO's Commission as to the costs of such relocation to CLEARWATER and
possible alternative locations and routes, for LARGO's improvements. Ultimately, the
decision as to such need for relocation shall be LARGO's.
Should it become necessary in the installation of Gas lines or facilities to relocate
water or sewer lines of LARGO now or hereafter installed, then such work shall be done
at the expense of CLEARWATER and not LARGO. It is understood that in all instances
the facilities of LARGO shall have a reasonable right-of-way and preference over that
of CLEARWATER herein.
SECTION 14. INDEMNIFICATION.
CLEARWATER shall at all times indemnify, defend and hold LARGO harmless
from or on account of any claims, losses, injuries or damages, received or sustained
by any person or persons during or on account of any work or operations engaged in
by CLEARWATER in connection with the operation of CLEARWATER's franchise pursuant
to this Interlocal Agreement; or by or in consequence of any negligence, excluding the
sole negligence of LARGO, in connection with the same; or by or on account of the use
of any improper materials or by or on account of any act or omission of CLEARWATER,
its agents, servants, or contractors. CLEARWATER agrees to defend, indemnify and
save harmless LARGO against liability arising from or based upon violation of any
Federal, State, County or Municipal law, ordinance or regulation by CLEARWATER, its
agents, servants, employees, or contractors. This indemnification provision obligates
CLEARWATER to defend LARGO from any and all liability claims and all suits and
actions that may be brought against LARGO resulting from the sole negligence of
CLEARWATER. CLEARWATER may defend LARGO with CLEARWATER's in-house staff
counsel at trial and all appellate levels or CLEARWATER may provide for LARGO's
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defense with outside counsel by paying for all attorney's fees, costs and trial expenses.
The decision to defend with in-house counselor with outside counsel shall be within
CLEARWATER's sole discretion. CLEARWATER's obligation to defend LARGO for the
acts or omissions of CLEARWATER, its agents, servants, employees or contractors shall
be limited to the extent provided in 9768.28, Florida Statutes.
Notwithstanding anything contained herein to the contrary, this indemnification
provision shall not be construed as a waiver of any immunity from or limitation of
liability to which CLEARWATER or LARGO is entitled to pursuant to 9768.28, Florida
Statutes. Furthermore, this provision is not intended to nor shall be interpreted as
limiting or in any way affecting any defense CLEARWATER or LARGO may have under
9768.28 and is not intended to and shall not be interpreted to alter the extent of
CLEARWATER's or LARGO's waiver of sovereign immunity under 9768.28. The parties
. to this Interlocal Agreement specifically agree to be fully responsiblefor their own acts
of negligence or their respective agents acts of negligence when acting within the
scope of their employment, and agree to be liable for any damages resulting from said
negligence. Nothing herein is intended to serve as a waiver of sovereign immunity by
either party, and nothing herein shall be construed as consent by either party to be
sued by third parties in any manner arising out of this Interlocal Agreement.
SECTION 15. INSURANCE.
LARGO shall be furnished proof of insurance coverage by CLEARWATER to
include:
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General liability: $100,000.00 per Person/$200,000.00 per Occurrence
self-insured retention with statutory limits per Section 768.28, Florida
Statutes.
Excess Insurance: $5,000,000.00 per Occurrence Excess Insurance (No
aggregate applicable) with self-insurance retention of $500,000.00.
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Automobile Liability: $100,000.00 per Person/$200,000.00 per
Occurrence self-insured retention with statutory limits per Section 768.28,
Florida Statutes. Excess Insurance: $5,000,000.00 per Occurrence
Excess Insurance (No aggregate applicable) with self-insured retention
of $500,000.00.
Worker's Compensation and Employer's Liability: Statutory
coverage per Occurrence with self-insured retention of $500,000.00.
Excess Insurance $5,000,000.00 Per Occurrence (No aggregate
applicable).
The insurance coverage required herein may be provided by CLEARWATER by
self-insurance, by self-funding, by purchase, or by any combination thereof at the sole
option of CLEARWATER. Insurance coverage and limits shall be evidenced by delivery
to LARGO of letters of self-insurance or self-funding executed by CLEARWATER's Risk
Manager, or by certificates of insurance executed by either the agent for the insurers
or the insurers or by copies of policy declaration pages. Such letters, certificates, and
policy declaration pages shall list coverages (including the amount of insurance per
claim and per occurrence, any gap in coverage, and the name of the excess insurer)
and policy limits with expiration dates. Upon the specific written request of LARGO,
a photocopy of each applicable insurance policy, including all endorsements, will be
provided to LARGO.
SECTION 16. COMPLIANCE WITH ORDINANCES.
CLEARWATER, its successors and assigns, shall at all times comply with all
ordinances, rules and regulations enacted or passed by LARGO not in conflict with the
terms of this franchise and CLEARWATER shall have the right to make, establish and
maintain and enforce such reasonable regulations for the operation of its distribution
system as may be reasonably necessary and proper, not inconsistent with the terms
of this franchise and the ordinances of LARGO, and to protect itself from fraud or
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imposition and may, in its discretion, refuse to furnish Gas and to cut off the supply
from any customer or customers who are in default in payment of any bill rendered for
such service.
SECTION 17 . AVAILABILITY OF RECORDS; MAPS AND REPORTS.
As soon as practicable after execution of this agreement, CLEARWATER shall
provide LARGO with a map showing all CLEARWATER's Gas lines and facilities within
LARGO. Upon LARGO's request, CLEARWATER shall provide an up-date of such map
to reflect changes in Clearwater's Gas lines and facilities. Further, CLEARWATER shall
provide for review and inspection of such maps and also accounts and records of
CLEARWATER and/or all such information regarding LARGO that LARGO or its
representatives may from time to time reasonably request or require. CLEARWATER's
financial records shall be kept and maintained in accordance with generally accepted
. accounting principles. All of these records shall, on written request of LARGO, be open
for examination by LARGO and LARGO's representatives during ordinary business
hours, and such records shall be retained by CLEARWATER for a period of three (3)
years. Upon any map information of CLEARWATER becoming available in electronic
format, CLEARWATER shall at LARGO's request make any map information available
in that format.
S~CTION 18. CONFLICT; FILING.
Upon adoption of this agreement, the franchise provided in LARGO's Ordinance
71-545 shall be of no further force and effect. Upon full execution hereof,
CLEARWATER shall file with the Clerk a fully executed copy of this agreement for
recording in the public records in and for Pinellas County, Florida.
SECTION 19. SEVERABILITY.
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If any section or sections of this agreement are declared invalid for any reason,
such invalidity shall not affect the remaining sections thereof.
SECTION 20. EFFECTIVE DATE.
This agreement shall become effective upon the first day of the month after
approval this agreement by appropriate acts by CLEARWATER's and LARGO's
commissions.
IN WITNESS WHEREOF, LARGO and CLEARWATER hereto have executed this
agreement on the day and year above written.
CITY OF LARGO, FLORIDA
By:
Robert E. Jackson
Mayor
Reviewed and approved:
Attest:
Alan S. Zimmet
City Attorney
Diane Bruner, City Clerk
Countersigned:
CITY OF CLEARWATER, FLORIDA
By:
Brian J. Aungst
Mayor-Com missioner
William B. Horne, II
Interim City Manager
Approved as to form:
Attest:
Pam Akin
City Attorney
Cynthia E. Goudeau
City Clerk
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Exhibit "A"
CLEARWATER GAS SYSTEM / PEOPLES GAS
TERRITORIAL BOUNDRIES
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POINT OF BEGINNING 10
THE NORTHEAST CORNER
OF SECTION 2.
TOWNSHIP 27 SOUTH.
RANGE 17 EAST
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TERRITORIAL
BOUNDARY IS THE
CENTERLINE OF THE
INTRACOASTAL
WATERWAY TO AN
END POINT 0 THE
SOUTHERNMOST
BOUNDARY OF THE
TOWN OF
REOINGTON BEACH
rRO~ THE CENTER
OF THE
INTRACOASTAL
WATERWAY TO THE
POiNT OF
INTERSECT WITH
THE SHORELINE OF
THE GUlf OF
MEXICO
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= A( SEE TERRITORIAL
AGREEMENT FOR
= B" EXPLANATION OF
C) BOUNDARY IN
THESE AREAS
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January 6, 1999
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