Loading...
INTERLOCAL GAS SERVICE/CITY OF NEW PORT RICHEY , ~~ . I I INTERLOCAL AGREEMENT REGARDING GAS SERVICE BETWEEN THE CITY OF NEW PORT RICHEY, FLORIDA, AND THE CITY OF CLEARWATER, FLORIDA ~~ THIS AGREEMENT, made and entered into this L day of ~ ~ +~ , 1991,tr and between The City of New Port Richey, Florida, ~ 1 a Florida municipal corporation, by and through its City Council (herein "NEW PORT RICHEY") and the City of Clearwater, a Florida municipal corporation, by and through its City Commission (herein "CLEARWATER"). WIT N E SSE T H: WHEREAS, it is in the best interests of the citizens of NEW PORT RICHEY 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 service in NEW PORT RICHEY; and WHEREAS, NEWPORT RICHEY and CLEARWATER wish to set forth their agreement with respect to the provision of such gas service to those areas within the corporate limits of NEW PORT RICHEY, pursuant to the provisions of the Florida Interlocal Cooperation Act of 1969, as amended. NOW, THEREFORE, for value and other consideration, it is agreed: SECTION 1. RECITALS The recitals and findings contained above are true and correct and are hereby incorporated within this agreement in full. 1 />,,.,c, (r,\( f' C),I vc/ ./, .c. / (''7 . ,_' :'11<_/ . . ,. I , Section 2. TERM. GRANT: DEFINITION OF GAS. For a period of30 years beginning January I, 1996 and ending December 31, 2025, NEW PORT RICHEY, its successors, and assigns, does hereby give and grant to CLEARWATER, its successors, and assigns, the non-exclusive right, privilege and franchise to furnish gas and to construct, operate and maintain within the corporate limits of NEW PORT RICHEY, as such limits may be expanded, all facilities required by CLEARWATER to supply gas to NEW PORT RICHEY, its inhabitants and the places of business located within the corporate limits of NEW PORT RICHEY, as such limits may be expanded, and other customers and areas now or hereafter supplied, or to be supplied, gas by CLEAR WATER The exercise of this authority and franchise by CLEARWATER shall be consistent with the teons and conditions of the Ordinance attached hereto as Exhibit "A" which is incorporated herein by reference. 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 herein shall be interpreted to prohibit CLEAR WATER from engaging in the sale ofliquid petroleum (propane) gas. Section 3. TERM.V AND CONDITIONS. All teons and conditions as set forth in NEW PORT RICHEY Ordinance No, 1388 , a copy of said franchise ordinance being attached hereto as Exhibit" An, are incorporated herein by reference as if fully set forth herein. 2 . ' ,- " I I IN WITNESS WHEREOF, NEW PORT RICHEY and CITY hereto have executed this agreement on the day and year above written, CITY OF NEW PORT RICHEY By: ATTEST: P , Altman 1-.;(-" Mayor -Council member ~~~r -;L~~ ~~~~ ~ Tnomas K. Morrison City Attorney 3 . . " ~ Countersigned: 'ta 1. Garvey Mayor-Commissioner Approved as to form and legal sufficiency: ~~~~~-- amela K. Akin / City Attorney CM-95-10-50 R-12-11-95 I CITY OF CLEARWATER, FLORIDA By: .~~ Elizab . D ula City Manager Attest: 4 -r~.". E. Goudeau rk .......Al-:~lil.:~.iiZ)~~J~}~..T~\t;l-h.i~J~~~.:D~~1J.1~ :, l.;J f., J~J,~lJl'l)Wr.~;fl1V.f'I/!EU (;,I1:J"p J'; , "I1ie gateway To rr ropit.tll ~forilfa' 5919 Main Street, New Port Richey, Florida 34652 ;'>;, ::.' .,! ,". JANUARY 4, 1996 ~!;'BIIEl!;.eIlQ~ I, JUNE SACHSE 80TTNER,CITY CLERK OF THE CITY OF NEW PORT RICHEY, FLORIDA DO HERE8Y .CERTIFY THAT TIlE ATTACHED IS A TRUE AND CORRECT COPY OF ORDINANCE NO. 1388 AS ADOPTED 8Y THE CITY COUNCIL ON JANUARY 2, 1996. (SEAL) EXHIBIT A .'/' , I ORDINANCE NO. I 1388 AN ACT GRANTING TO THE CITY OF CLEARWATER A FRANCHISE TO CONSTRUCT, OWN, AND OPERATE A PUBLIC UTILITY FOR mE DISTRmUTION AND SALE OF GAS AND TO USE THE PUBLIC STREETS AND HIGHWAYS FOR THAT PURPOSE; PROVIDING FOR GRANT OF AUTHORITY; PROVIDING FOR TERM; PROVIDING FOR INDEMNIFICATION; PROVIDING FOR CONDITIONS OF USE OF STREETS AND HIGHWAYS; PROVIDING FOR CONSTRUCTION WORK; PROVIDING FOR RATES; PROVIDING FOR PAYMENT OF FRANCHISE FEE; PROVIDING FOR COMPLIANCE WITH REGULATIONS AND CITY ORDINANCES; PROVIDING FOR COMPETITIVE OPERATIONS BY mE CITY; PROVIDING FOR SERVICE TO ANNEXED AREAS; PROVIDING FOR EXTENSIONS OF SERVICE; PROVIDING FOR SUFFICIENCY OF SUPPLY; PROVIDING FOR FORFEITURES AND REVOCATION OF FRANCHISE; PROVIDING FOR NONTRANSFERABILITY; PROVIDING FOR INTERLOCAL AGREEMENT; PROVIDING FOR CONFLICT; PROVIDING FOR SEVERABILITY; PROVIDING AN EFFECTIVE DATE. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF NEW PORT RICHEY AS FOLLOWS: Sectioll L DefillitiollS For the purposes of this Ordinance, the following terms, phrases, words and derivatives shall have the following meaning: 1 J J (1) "CITY" is the City of New Port Richey, Pasco County, Florida; (2) "CLEARWATER" is the City of Clearwater, Pinellas County, Florida, which includes its department, the Clearwater Gas System; (3) "COUNCIL" is the City Council of the City of New Port Richey, Florida; (4) "PERSON" is any person, finn, partnership, association, corporation, company or organization of any Ipnd. (5) "STREETS AND HIGHWAYS" refers to all public streets, roads, boulevards, alleys, lanes or other public ways owned or maintained by the City or dedicated to the public for vehicular traffic and also includes sidewalks, easements, and rights-of-way owned by the City. (6) "GAS" means natural gas, co-mingled gas, or any reasonable substitute therefor, except liquid petrolewn (propane) gas. (7) "FACILITIES OR EQUIPMENT" means pipe, pipeline, tube, main, service, vent, trap, vault, manhole, meter, gauge, regulator, valve, conduit, appliance attachment, appurtenances, and any other personal property located, or to be located in, upon, along, across, under, or over City streets or useful in the distribution of gas. (8) "GROSS RECEIPTS FROM THE SALE OF GAS" means all revenues received by Clearwater as a result of a sale of gas to customers within the corporate limits of the City. (9) "REGULATIONS" means those laws, rules, and regulations enacted by the State of Florida or its regulatory agencies which govern gas distribution systems, sales activities, or associated facilities and equipment. Section 2. Grant of Authority The CITY hereby grants to CLEAR WATER the right, privilege, and franchise to distribute and sell GAS and to erect, construct, operate and maintain a GAS plant, GAS system, distribution system and sales organization for the sale and distribution of GAS, whether natural, manufactured or mixed, within the CITY, and for these purposes to establish the necessary facilities and equipment and to lay and 2 I I maintain GAS mains, service pipes and any other equipment necessary to the sale and distribution of GAS in the CITY. (I) Nonexclusive G rant The rights herein granted shall not be exclusive and the CITY reserves the right to grant a similar use of its STREETS AND HIGHWAYS to any PERSON during the period of the franchise herein granted. Section 3. Term The term of this franchise is for a period of thirty (30) years begil11ling JanmllY 1,1996 and ending December 31 2025 . CLEARWATER shall be subject to all lawful ordinances of the CITY and to the lawful exercise of the police power ofthe CITY and to those laws, rules, and REGULATIONS enacted by the State of Florida or its regulatory agencies. Any material violation of the REGULATIONS shall be deemed to be a default of CLEARWATER's obligations under this franchise ordinance and shall subject CLEARWATER after notice and hearing and determination by the COUNCll-, pursuant to Section 14, to a finding that the terms of this franchise have been breached and to the cancellation ofthe franchise. Sectioll 4. l11demnijicatioll. CLEAR WATER shall save the CITY harmless from and indemnify the CITY at all times against all loss, costs, or damages sustained by the CITY on account of any suit, claim or demand resulting from act or omission on the part of CLEAR WATER in the construction, operation or maintenance of the GAS system in the CITY, including the payment of reasonable attorneys fees and the cost of defense. The CITY shall notify CLEARWATER in writing within sixty (60) days after the presentation of any claim or demand either by suit or othelWise made against the CITY on account of any act or omission on the part of CLEARWATER. In the event that Florida Statutory or cornmon law should prohibit indelmrification as provided herein, or imposes limitations of liability (Other than as set forth in Section 768.28 Florida Statutes, or other applicable law), CLEARWATER shall be required to purchase, or acquire, liability insurance with aggregate limits of $3,000,000 and will name CITY as an additional insured under said policies of insurance, including any plan or program for self insurance or retained limits by CLEARWATER. Nothing herein is intended to waive or limit sovereign immunity of the CITY or CLEARWATER. 3 1 I Section 5. Conditions on Use of STREETS AND HIGHWAYS. (1) .ll.& All mains, service pipes, fixtures and other equipment or appliances placed, maintained or operated by virtue of this franchise shall be so placed, constructed, maintained or operated as to not interfere with the drainage of the CITY or to interfere with or injure any sewer or underground fixture for the conveyance of water or any other improvement which the CITY had heretofore made, or may hereafter, make in and along its STREETS AND HIGHWAYS nor shall CLEARWATER urmecessarily and wrreasonably impede, impair or inconvenience the use of any ofthe CITY's streets or highways. Any work done under tills section shall confonn to the grades and standards for such safe facilities as now or hereafter may be established. In addition, CLEAR WATER shall (a) provide CITY annually with a tIrree (3) year plan for expansion of GAS services within tile corporate limits of tile CITY; (b) not cut into any road for installation of FACILITIES OR EQUIPMENT, without the prior expressed written pennission ofthe CITY and shall, at all times, install GAS facilities by using "jack and bore" or "directional bore" method of installation; (c) maintain a minimwn vertical separation of eighteen (18) inches and a minimum of five (5) foot horizontal separation, as measured from outer casing to outer casing, from any and all municipal water and sewer lines during installation of GAS facilities, unless otherwise approved by the CITY's Director of Public Works in writing; (d) submit, and have approved by the New Port Richey CITY Manager or his designee, all construction plans and specifications for GAS mains, directional, and jack and bore service lines, prior to construction, which construction plans shall confonn to GAS facility construction specifications promulgated by the Florida Department of Transportation or the United States Department of Transportation specification; (e) submit "as built" construction plans to the CITY Public Works Department prior to placing any newly constructed facility into service. (2) Restoration. Whenever CLEARWATER enters into any street, or highway to construct, install or maintain its facilities, CLEARWATER within thirty 4 I I (30) days after the completion of that work, shall replace or restore any trees, vegetation, paving, street or highway to as good a condition as obtained immediately prior to CLEAR W AlER's work. In the event CLEAR W AlER fails to make necessary restoration within a reasonable period of time, or in the event the restoration made or attempted by CLEARWAlER is disapproved by the CITY, or in the event the restoration fails and renders damage or depreciates the CITY's streets or highways within a period of two (2) years except sod, trees, and vegetation for which the period shall be ninety (90) days, after CLEARWATER's work, the CITY shall notify CLEAR W A lER in writing of the restoration needed or of the reasons for the CITY's disapproval of the restoration made or attempted to be made by CLEAR WATER. CLEAR W A lER shall then have thirty (30) days after the written notice is received to make the necessary restoration required in the notice, failing which, the CITY shall be authorized to make the necessary restoration and charge the cost to CLEAR WATER. Section 6. Construction Work. TIle CITY reserves the right to lay and pennit to be laid electric conduits, water, GAS, and other pipelines, or cables, sewers, and to do and pennit to be done any underground work that may be deemed necessary or proper by the CITY in, across, along or under any street or highway. In laying or pennitting such work to be done, the CITY shall not be liable to CLEARWATER herein for any damages so occasioned. Whenever, by reason of establishing a grade or by reason of changes in the grade of any street, or by reason of the widening, grading, paving, or otherwise improving present or future streets or highways or in the location or maimer of construction of any water pipes, electric conduits, sewers, or other undergrowld structure, it shall be deemed necessary by the CITY, to alter, change, adapt, or confonn the mains, pipelines, service pipe, or other apparatus or appurtenances of CLEAR W A lER hereto, such alternations, or changes, shall be made by CLEAR W A lER as ordered in writing by the CITY, without claim for the reimbursement or compensation for damages against the CITY; provided, however, if the CITY shall require CLEARWATER to adapt or confinn its FACILITIES OR EQUIPMENT, or in any way to alter, relocate, or changes its FACILITIES OR EQUIPMENT to enable any other person or corporation except the CITY, any other agency exercising powers and duties of the CITY, Pasco County or the State of Florida to use the STREETS AND HIGHWAYS, CLEARWATER shall be reimbursed by the PERSON or corporation desiring or occasioning such changes for any loss, cost or expense caused by or arising out of such change, alternation or relocation of CLEAR W ATER's FACILITIES OR EQUIPMENT. CLEAR WATER further agrees that it shall not interfere with, change, or iJUure any water pipes, drains, or sewers of the CITY, unless it has received specific pennission from the CITY's Director of Public Works. 5 I I Section 7. Rates. The rates, charges and fees to be charged by CLEAR WATER for GAS service to consumers within the corporate limits of New Port Richey during the tenn of this franchise shall be the same rates charged by CLEAR WATER with the identical rate schedule applied to consumers residing within the corporate limits of the CITY of CLEARWATER, Florida without additional surcharge, or such rates as may be affixed by any agency of the State of Florida having jurisdiction to fix GAS service rate. Section 8. FrQllcllise Fee. In consideration of the granting of tllis franchise, and commencing upon tile enactment oftllis franchise, and each year of the franchise thereafter, CITY shall be entitled to receive from CLEARWATER a franchise fee equal to six (6) percent of CLEARWATER's GROSS RECEIPTS FROM THE SALE OF GAS within the corporate limits of New Port Richey, Pasco County, Florida. CLEARWATER will pay any and all licenses, assessments, or other impositions that may now or hereinafter assessed, levied, or imposed by the CITY, by tile Tax Collector, or any otller constitutional officer of Pasco County, Florida, or by any other local or state entity wllich assessments, levies, impositions, or collections are collected by the CITY or the Tax Collector or any other constitutional officer of Pasco County, Florida, upon CLEARWATER's facilities and property and CLEARWATER's business and operations without deduction from gross receipts for calculating the montWy franchise fee. The franchise fee shall be payable on a calendar quarterly basis, each such calendar quarterly payment being due on the last day of tile month following the end of each calendar quarter. CLEARWATER agrees to furnish the CITY a list of all franchise customers within the corporate limits of the CITY of New Port Richey upon demand and without cost. At the end of each fiscal year, CLEARWATER shall submit to the CITY a statement of CLEAR WATER's gross receipts derived from within tile corporate limits of the CITY, listing the twelve months of the fiscal year and the respective gross receipts, certified by an independent certified public accountant. Section 9. Regulation alld CITY Ordinallces. CLEARWATER shall at all times be subject to lawful ordinances of the CITY and its applicable REGULATIONS now in effect or hereafter enacted relating to the use of tile CITY's streets or llighways. CLEAR WATER shall at all times comply with all reasonable ordinances, rules, and REGULATIONS enacted or passed by the CITY 6 I f not in conflict with the tenns of this franchise. CLEAR WATER shall have the right to make, establish, or maintain and enforce such reasonable REGULA nONS for the operation of its distribution system as may be reasonably necessary and proper, not inconsistent with the tenns of this franchise and any ordinance of the CITY. CLEAR WATER may, in its discretion, refuse to fumish GAS or service to any customer who is delinquent on any bill rendered, or for other reasonable grounds, in accordance with the same procedures as CLEARWATER provides for its customers within the CITY of CLEARWATER. CLEARWATER agrees that all docwnents relating to this franchise shall be and remain a public record. Section 10. Competitive OpertatiollS by tI,e CITY. As a further consideration of tlIis franclIise, the CITY agrees not to engage in tile business of distributing and selling GAS during the life of tlIis franclIise or any extension thereof, in competition with CLEARWATER, its successors, and assigns. Nothing herein is intended to prohibit the CITY from approving any other GAS franchise ordinance to any other GAS service provider. Section 11. Annexation. In the event of the annexation of any territory to the present corporate limits of the CITY, such aImexed territory and all portions of the GAS system of CLEARWATER located therein shall become subject to all of the tenns and conditions of this franclIise and ordinance as of the time such annexation becomes effective. It shall be tile responsibility of the CITY to notify CLEAR WATER in writing witllin thirty (30) days after the effective date of every such annexation. Section 12. ExtellSion of Service. In consideration of the rights granted Ill1der tlIis franchise and the duration of this franclIise, CLEARWATER agrees that its facilities to be installed witlIin the corporate limits ofthe CITY will be expanded to provide service to new customers on the tenns aIld conditions hereinafter set forth. Such expansion shall occur on tile following tenns and conditions, to-wit: (1) GAS service shall be extended to customers desiring said service based on a feasibility foooula. Such fooouIa shall be tile fonnula currently in effect system- wide as then administered by CLEARWATER, but, at a minimum, shall be as follows: 7 I I GAS service shall be extended if the construction costs expended to such customers including, but not limited to debt service and expenses will be recovered by CLEARWATER through rates paid by those customers within a maximwn of seven (7) years. If an application for GAS service does not meet the 7-year payback period, then, in such event, such customers, may make a lump swn contribution in aid of consbuction to allow the 7-year payback standard to be met. In the event the system-wide fonnula provides for a fonnula longer than seven (7) years, that longer period shall be used. Sectioll 13. SuJjiciellcy of Supply. This franchise is granted upon condition that CLEAR WATER agrees to maintain and supply sufficient quantities of GAS to meet the needs and requirements of its customers in the CITY. The quality of GAS shall at a minimwn meet the standards set for it by the Public Service COIrunission. In the event by act of God, strike, riot, public enemy or other calamity, or restriction in the supply of GAS beyond the control ofCLEARWAlER or its interstate supplier, or by reason of the regulation exerted by the Florida Public Service Commission or the Federal Energy Regulatory Commission or other regulatory body having jurisdiction on the premises, the supply of GAS should be interrupted, CLEARWAlER shall, nevertheless, continue to supply the available GAS to such customers as it is possible, and shall employ its full services to remedy such deficiency of GAS supply, and shall reswne complete GAS service when that is possible. Sectioll 14. Forfeiture or revocatioll offrallcllise. Violation by CLEARW AlER of any of the covenants, terms, and conditions hereof, or default by CLEARW AlER in observing or carrying into effect any of said covenants, terms and conditions, and any material violation by CLEAR W A lER of the REGULATIONS, shall authorize and empower the COUNCIL to declare a forfeiture of and to revoke and cancel all rights granted hereunder, provided, however, that before such action by the COUNCIL shall become operative and effective, CLEARW AlER shall have been served by the COUNCIL with a written notice setting forth all matters pertinent to such violation or default, and describing the action of the COUNCIL with respect thereto, and CLEAR WATER shall have 8 , r a period of sixty (60) days after service of such notice within which to tenninate such violation or default; and provided further that any violation or default arising from an act of God, strike, riot, public enemy or other calamity or restriction in the supply of GAS beyond tIle control of CLEARWATER or its interstate suppliers or by reason of the regulation exerted by the Public Service Commission or the Federal Energy Regulatory Commission or other regulatory body having jurisdiction on the premises shall not constitute grounds for revoking and canceling any rights hereunder. In the event that CLEARWATER, upon receipt of said written notice from the CITY, does not desist from such violation within the time aforesaid, then CLEAR WATER shall be deemed to be in default and subject to an appropriate action to tenninate the said franchise, grants, privileges, rights, licenses and immunities given by this franchise. CLEARWATER is required to make every effort to maintain operation and service at all times in the event of any work stoppage by its employees. Any material discontinuation, or interruption, of service to a significant number of customers in tIle CITY in excess of three (3) consecutive days, except in cases arising from 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 the regulation exerted by the Florida Public Service Commission or the Federal Energy Regulatory Commission or other regulatory body having jurisdiction on the premises or other cause beyond the control of CLEARWATER, shall constitute a default under this agreement and may subject CLEARWATER to the remedies set forth herein; provided, however, that CLEARWATER shall not be required to lay replacement FACILITIES OR EQUIPMENT beyond such point as it detennines to be economically feasible, and unless the revenue from such additional FACILITIES OR EQUIPMENT shall warrant such installation on a basis of reasonable compensation or return on CLEARWATER's investment. Such policy shall be the same as CLEARWATER applies within the CITY of CLEAR WATER. Section 15. Nontransferahility of Frallcllise. CLEAR WATER shall not sell, assign, or otherwise transfer its franchise granted under this Ordinance to any other PERSON without the prior written approval of the CITY COUNCIL. No sale or transfer of any interest in the franchise shall be effective lUltil CLEARWATER has filed with the CITY Clerk the executed legal instrument reciting tIle sale, assignment, lease or otIler transfer. Tllis Section shall not be deemed to limit the right of CLEAR WATER to pledge and encumber 9 ,. , I its GAS system including its franchise from the CITY of New Port Richey, Florida, as security for the payment of money borrowed by CLEARWATER in the course of its long-term capital investments. Section 16, Inter/oea/Agreement 1l1e CITY and CLEAR WATER acknowledge that CLEARWATER has the legal authority pursuant to the Florida Statutes to provide GAS service and, further, that the CITY, upon appropriate exercise of its powers could also provide such service. TIle CITY and CLEAR WATER 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 the CITY as defmed herein. Although the right to provide such GAS service is being granted hereunder by this franchise ordinance, it is the intent of the CITY and CLEARWATER that tins ordinance, to tile extent necessary, constitute also an interlocal agreement pursuant to the provisions of the Florida Interlocal Cooperative Act of 1969, as amended. Section 17. Conflict All ordinances and parts of ordinances in conflict herewith be and the same are hereby repealed. Section 18. Severability. It is declared to be tile intent of the City COUNCIL of the City of New Port Richey, Florida, that if any section, subsection, sentence, clause or provision of this Ordinance is held to be invalid or unconstitutional by any court of competent jurisdiction, the remainder of the Ordinance shall be construed as not having contained said section, subsection, sentence, clause or provision and shall not be affected by such holding. Section 19. Effective Date. This ordinance shall take effect immediately upon its adoption and upon approval of an Interlocal Agreement between the City of New Port Richey and tile City of CLEAR WATER. 10 . , , I The above and foregoing Ordinance was read and approved on fIrst reading at a duly convened meeting of the City Council of the City of New Port Richey, Florida, tIIis ~ day of December ,1995. The above and foregoing Ordinance was read and approved on second reading at a duly convened meeting of the City Council of tile City of New Port Richey, Florida, this 2nd day of Janumy, 1996. ATTEST: ~4.~~ J . Sachse Bohner City Clerk Peter A. Altman Mayor-Councilmember ~o/z~~~-, Thomas K. Morrison, Esquire City Attorney CM-95-10-56 R-12-26-95 11