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DISTRIBUTION AND SALE OF GAS I ORDINANCE NO. 1388 I AN ACT GRANTING TO THE CITY OF CLEARWATER A FRANCHISE TO CONSTRUCT, OWN, AND OPERATE A PUBLIC UTILITY FOR TIlE 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 INDEMNIFICA 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 L Definitions For the purposes of this Ordinance, the following tenus, phrases, words and derivatives shall have the following meaning: 1 I , (1) "CITY" is the City of New Port Richey, Pasco County, Florida; (2) "CLEARWATER" is the City ofClealWater, 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, fmn, partnership, association, corporation, company or organization of any kind. (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 petroleum (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, WIder, 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 govenl gas distribution systems, sales activities, or associated facilities and equipment. Section 2. Grant of Authority The CITY hereby grants to CLEARWATER 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 , maintain GAS mains, service pipes and any other equipment necessary to the sale and distribution of GAS in the CITY. (l) Nonexclusive Grant. 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 begilming Januaty 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 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 CLEARWATER's obligations under this franchise ordinance and shall subject CLEARWATER after notice and hearing and determination by the COUNCIL, pursuant to Section 14, to a finding that the tenus of this franchise have been breached and to the cancellation of the franchise. Section 4. Indemnification. 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 accOtUlt 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 indemnification 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 CLEAR WATER. 3 I , Section 5. Conditions on Use of STREETS AND HIGHWAYS. (1) llse.. 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 lU1l1ecessarily and unreasonably impede, impair or inconvenience the use of any of the CITY's streets or highways. Any work done under this section shall confonn to the grades and standards for such safe facilities as now or hereafter may be established. In addition, CLEARWATER shall (a) provide CITY annually with a three (3) year plan for expansion of GAS services within the corporate limits of the CITY; (b) not cut into any road for installation of FACILITIES OR EQUIPMENT, without the prior expressed written pennission of the 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 conform 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 thirtyb 4 , , (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 CLEARWATER's work. ill the event CLEARWATER 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 CLEARWATER's work, the CITY shall notify CLEARWATER 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 CLEARWATER. CLEARWATER 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 CLEARWATER. Section 6. Construction Work. The 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 llllder any street or highway. ill laying or permitting 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 manner of construction of any water pipes, electric conduits, sewers, or other underground structure, it shall be deemed necessary by the CITY, to alter, change, adapt, or conform the mains, pipelines, service pipe, or other 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 COWlty or the State of Florida to use the STREETS AND HIGHWAYS, 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 EQUIPMENT. CLEARWATER 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 , , Section 7. Rates. The rates, charges and fees to be charged by CLEARWATER for GAS service to consumers within the corporate limits of New Port Richey during the term of tlus 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. Francllise Fee. In consideration of the granting of tIus franchise, and commencing upon the enactment of this franchise, and each year of the franchise thereafter, CITY shall be entitled to receive from CLEARWATER a francluse 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 other constitutional officer of Pasco County, Florida, or by any other local or state entity which assessments, levies, impositions, or collections are collected by the CITY or the Tax Collector or any other constitutional officer of Pasco County, Florida, upon CLEAR WATER'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 the montIl following the end of each calendar quarter. CLEARWATER agrees to furnish the CITY a list of all francluse customers witI1in the corporate limits of the CITY of New Port Richey upon demand and witIlout cost. At the end of each fiscal year, CLEAR WATER shall submit to the CITY a statement of CLEAR WATER's gross receipts derived from witIlin 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 Ordinances. CLEAR WATER shall at all times be subject to lawful ordinances of tile CITY and its applicable REGULATIONS now in effect or hereafter enacted relating to the use of tile CITY's streets or highways. CLEARWATER shall at all times comply with all reasonable ordinances, rules, and REGULATIONS enacted or passed by the CITY 6 , , not in conflict with the tenus 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 terms of this franchise and any ordinance of the CITY. CLEAR WATER may, in its discretion, refuse to funIish 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 this franchise, 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. Nothing herein is intended to prohibit the CITY from approving any other GAS franchise ordinance to any other GAS service provider. Section 11. Allnexatioll. 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 terms 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 CLEAR WATER in writing within thirty (30) days after the effective date of every such atmexation. Section 12. Extellsioll of Service. hI 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 the CITY will be expanded to provide service to new customers on the terms atId conditions hereinafter set forth. Such expansion shall occur on the following terms and conditions, to-wit: (1) 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, 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 maximum 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 sum contribution in aid of construction to allow the 7 -year payback standard to be met. hI the event the system-wide fonnula provides for a fonnula longer than seven (7) years, that longer period shall be used. Section 13. Sufficiency of Supply. This franchise is granted upon condition that CLEARWATER 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 COlmnission. 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 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, CLEARWATER 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 resume complete GAS service when that is possible. Section 14. Forfeiture or revocation offrancllise. Violation by CLEARWATER of any of the covenants, tenns, and conditions hereof, or default by CLEARWATER in observing or carrying into effect any of said covenants, tenns and conditions, and any material violation by CLEARWATER 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, CLEARWATER 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 , , 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 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 grooods 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 tIus francluse. 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 sigtuficant nwnber 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 CLEARWATER or its inter.state 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 EQUIPMENT beyond such point as it determines 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 retunl on CLEARWATER's investment. Such policy shall be the same as CLEAR WATER applies witIlin the CITY of CLEARWATER. Section 15. Nontransferability of Francllise. 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 tile 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, assigtwent, lease or other transfer. Tlus Section shall not be deemed to limit the right of CLEARWATER 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 CLEAR WATER in the course of its long-tenn capital investments. Section 16. Interlocal Agreement The CITY and CLEARWATER 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. The CITY 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 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 CLEAR WATER that tins ordinance, to tile extent necessary, constitute also an interlocal agreement pursuant to the provisions of the Florida lnterlocal 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 the 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 tmconstitutional 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 lnterlocal Agreement between the City of New Port Richey and the City of CLEARWATER. 10 - - , 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 19th . 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 the City of New Port Richey, Florida, this 2nd- day of January, 1996. ATTEST: tY...J~~ ~e BoHner City Clerk Peter A. Altman Mayor-COlIDcilmember ~7;t(~ Thomas K. Morrison, Esquire City Attorney CM-95-10-56 R-12-26-95 11