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GAS I I RESOLUTION NO. 96-06 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF CLEARWATER, FLORIDA, ACCEPTING THE FRANCHISE, PRIVILEGE AND CONCESSION OF THE CITY OF NEW PORT RICHEY, FLORIDA, FOR THE PURPOSE OF FURNISHING GAS WITHIN NEW PORT RICHEY AND TO ITS INHABITANTS, AND APPROVING THE INTERLOCAL AGREEMENT RELATED THERETO; PROVIDING AN EFFECTIVE DATE. WHEREAS, on January 8, 1996, the City of New Port Richey, Florida, adopted Ordinance No. 1388 and approved an Interlocal Agreement with the City of Clearwater, copies of which are attached to the original of this resolution and incorporated herein by reference, granting the City of Clearwater a franchise for the purpose of furnishing natural gas service within New Port Richey; and WHEREAS, the terms and conditions of the franchise and the Interlocal Agreement are acceptable; now, therefore, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF CLEARWATER, FLORIDA: Section I. The terms and conditions of the gas system franchise, privilege and concession granted by the City of New Port Richey, Florida, by the adoption of Ordinance No. 1388 and the approval of the Interlocal Agreement are 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 Council of New Port Richey 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 New Port Richey. PASSED AND ADOPTED this 1st Rita Garvey Mayor-Commissioner ATTEST: Q~~ ~ tL..{}Lft Cynthi . Goudeau City CI k I}-/ -0 I ( --,f i(' I (0 ,_/ \~I q (,. _C)(_ (J;) I I Section 2. TERM. GRANT: DEFINITION OF GAS. For a period of 30 years beginning January 1, 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 CLEARWATER. The exercise of this authority and franchise by CLEAR WATER shall be consistent with the terms 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 CLEARWATER from engaging in the sale of liquid petroleum (propane) gas. Section J. TERMS AND CONDITIONS. All terms and conditions as set forth in NEW PORT RICHEY Ordinance No. 1388 , a copy of said franchise ordinance being attached hereto as Exhibit" A", are incorporated herein by reference as if fully set forth herein. 2 9{p-J& Countersigned: I Rita J. Garvey Mayor-Commissioner Approved as to form and legal sufficiency: Pamela K. Akin City Attorney CM-95-10-50 R-12-11-95 I CITY OF CLEARWATER, FLORIDA By: Elizabeth M. Depula City Manager Attest: Cynthia E. Goudeau City Clerk 4 1 ~ -o~ I ORDINANCE NO. I 1388 AN ACT GRANTING TO THE CITY OF CLEARWATER A FRANCHISE TO CONSTRUCT, OWN, AND OPERATE A PUBLIC UTILITY FOR TIlE DISTRIBUTION 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 INDEl\1NIFICA nON; 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 THE 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 I. DefinitiollS For the pwposes of this Ordinance, the following tenns, phrases, words and derivatives shall have the following meaning: 1 1 &~ -:J tt' I I maintain GAS mains, service pipes and any other equipment necessary to tlle sale and distribution of GAS in tlle CITY. (I) Nonexclusive Grant. The rights herein granted shall not be exclusive and the CITY reselVes 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 tenn of tllis franchise is for a period of thirty (30) years beginning JanuaIy 1, 1996 and ending December 31, 2025 . CLEARWATER shall be subject to all lawful ordinances of the CITY and to the lawful exercise of tlle police power of the 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 CLEAR WATER's obligations under tlus franc1use ordinance and shall subject CLEARWATER after notice and hearing and determination by the COUNCIL, pursuant to Section 14, to a finding that the tenns of tllis francluse have been breached and to the cancellation of the franchise. Sectio1l 4. 11Idenmijicatio1l. CLEAR WATER shall save the CITY hannless 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 otherwise made against the CITY on account of any act or omission on the part of CLEARWATER. In the event that Florida Statutory or common law should prohibit indelmtification as provided herein, or imposes limitations of liability (Other tllan as set forth in Section 768.28 Florida Statutes, or other applicable law), CLEARWATER shall be required to purchase, or acquire, liability insurance witll 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. Notl1ing herein is intended to waive or limit sovereign immunity of the CITY or CLEAR WATER. 3 11::/ -()GJ 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 WATER's work. In the event CLEAR WATER fails to make necessary restoration within a reasonable period of time, or in the event the restoration made or attempted by CLEARWATER 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 CLEAR WATER's work, the CITY shall notify CLEAR WATER 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. CLEARWATER shall then have thirty (30) days after the written notice is received to make tlle necessary restoration required in the notice, failing which, the CITY shall be autllOrized to make the necessary restoration and charge the cost to CLEARWATER. Sectio" 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 permit 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 tlle location or manner of construction of any water pipes, electric conduits, sewers, or otller oodergrowld structure, it shall be deemed necessary by the CITY, to alter, change, adapt, or conform the mains, pipelines, service pipe, or otller apparatus or appurtenances of CLEAR WATER hereto, such alternations, or changes, shall be made by CLEAR WATER 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 confirm 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 lllGHWAYS, CLEAR WATER 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 CLEARWATER's FACILITIES OR EQUlPMENT. CLEAR WATER further agrees that it shall not interfere with, change, or injure any water pipes, drains, or sewers of the CITY, unless it has received specific pennission from the CITY's Director of Public Works. 5 q &,-- C)l~ ~ I I not in conflict with the tenns of this franchise. CLEAR WATER shall have the right to make, establish, or maintain and enforce such reasonable REGULATIONS 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 furnish 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 CLEAR WATER provides for its customers within the CITY of CLEARWATER. CLEARWATER agrees that all documents relating to this franchise shall be and remain a public record. Section 10. Competitive Opertatiolls by tl,e CITY. As a further consideration of tins franclnse, the CITY agrees not to engage in the business of distributing and selling GAS during the life of this franchise or any extension thereof, in competition with CLEARWATER, its successors, and assigns. Notlnng herein is intended to prohibit the CITY from approving any other GAS franchise ordinance to any other GAS service provider. Section 11. Anllexation. In the event of the annexation of any territory to the present corporate limits of the CITY, such annexed territory and all portions of the GAS system of CLEARWATER located therein shall become subject to all of the teons and conditions of this franchise and ordinance as of the time such annexation becomes effective. It shall be the responsibility of the CITY to notify CLEARWATER in writing witlnn thirty (30) days after the effective date of every such annexation. Section 12. Extellsioll of Service. hI consideration of the rights granted ooder this franc1nse and the duration of this franclnse, CLEAR WATER agrees that its facilities to be installed within the corporate limits of the CITY will be expanded to provide service to new customers on the teons and conditions hereinafter set forth. Such expansion shall occur on the following tenns and conditions, to-wit: (1) GAS service shall be extended to customers desiring said service based on a feasibility fonnula. Such fonnula shall be the fonnula currently in effect system- wide as then admitnstered by CLEARWATER, but, at a minimum, shall be as follows: 7 1~i-()0; I I 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 the control of CLEAR WATER 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 groWlds for revoking and canceling any rights hereunder. In the event that CLEAR WATER, 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. CLEAR WATER 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 the 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 CLEAR WATER 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 WIder this agreement and may subject CLEARWATER to the remedies set forth herein; provided, however, that CLEAR WATER shall not be required to lay replacement FACILITIES OR EQUlPMENT 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 CLEARWATER. Section 15. NOI,transferability of Francl,ise. 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 lmtil CLEARWATER has filed with the CITY Clerk the executed legal instrument reciting the sale, assigmnent, lease or other transfer. TIus Section shall not be deemed to limit the right of CLEARWATER to pledge and encumber 9 en,' _I":' ',,_ - / c".- / '-<...,: ,./ ~ 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, this ~ day of~, 1995. The above and foregoing Ordinance was read and approved on second reading at a duly convened meeting of the City Council of the City of New Port Richey, Florida, this -2nd...- day of JanuaJy, 1996. ATTEST: ~~.~ J Sachse Bottner City Clerk Peter A. Altman Mayor-Councilmember ~;c&~ Thomas K. Morrison, Esquire City Attorney CM-95-10-56 R-12-26-95 11 qL?-()~)