95-30RESOLUTION NO. 95 -30
A RESOLUTION OF THE CITY COMMISSION OF THE
CITY OF CLEARWATER, FLORIDA, ACCEPTING THE
FRANCHISE, PRIVILEGE AND CONCESSION OF THE
CITY OF PORT RICHEY, FLORIDA, FOR THE PURPOSE
OF FURNISHING CAS WITHIN PORT RICHEY AND TO
ITS INHABITANTS, AND APPROVING THE INTERLOCAL
AGREEMENT RELATED THERETO; PROVIDING AN
EFFECTIVE DATE.
WHEREAS, on March 14, 1995, the City of Port Richey, Florida,
adopted Ordinance 95 -453 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 gas within 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 1. The terms and conditions of the gas system
franchise, privilege and concession granted by the City of Port
Richey, Florida, by the adoption of Ordinance No. 95 -453 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 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 Port Richey.
PASSED AND ADOPTED this 20th day of April, 1995.
ita Garvey
Mayor - Commission
Attest:
C'yntl ' a E. Goudeau
r'i.ty Clerk
qi5-_ .3o
ORDINANCE NO. 95 - 453 Tot:
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF PORT RICHEY, FLORIDA, GRANTING A NON-
EXCLUSIVE FRANCHISE TO THE CITY OF CLEARWATER
FOR GAS SERVICE TO THE CITIZENS OF THE CITY;
PROVIDING FOR TERM AND FRANCHISE GRANT;
PROVIDING FOR DEFINITIONS; PROVIDING FOR USE
OF PUBLIC STREETS; PROVIDING FOR CUSTOMER
SERVICES; PROVIDING FOR RATES; PROVIDING FOR A
FRANCHISE FEE; PROVIDING FOR ANNEXATION;
PROVIDING FOR EXTENSION OF SERVICE; PROVIDING
FOR FORCE MAJEURE; PROVIDING FOR COMPETITION;
PROVIDING FOR EXTENSION OF FRANCHISE;
PROVIDING FOR AN INTERLOCAL AGREEMENT;
PROVIDING FOR INDEMNIFICATION; PROVIDING FOR
CONFLICT; PROVIDING FOR SEVERABILITY AND
PROVIDING FOR AN EFFECTIVE DATE.
AREAS, The City Council of the City of Port Richey deems it
in the best interest of the citizens of the City of Port Richey to
make natural gas services available through a process of direct
installation to residential, commercial and industrial properties;
and,
AREAS, The City of Clearwater, Florida, and its department,
Clearwater Gas Systems, has offered to provide the City of Port
Richey with natural gas service if granted a non - exclusive
franchise by the City Council of the City of Port Richey.
NOW THEREFORE, be it ordained by the City Council of the City
of Port Richey, Florida, as follows:
Section 1. Term; Franchise Grant. For a period of 30 years
from the effective date of this ordinance, Port Richey, a Florida
municipal corporation, its successors, and assigns, (herein
refereed to as Grantor) does hereby give and grant to the City of
Clearwater, a municipal corporation created and existing pursuant
qs' -sa
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Ordinance 95 - 453
to the laws of the State of Florida, its successors and assigns
(herein referred to as Grantee), the non - exclusive right, privilege
and franchise to furnish gas and to construct, operate and maintain
within the corporate limits of Grantor, all facilities required by
the Grantee to supply gas to Grantor, its inhabitants and the
places of business located within Grantor's corporate limits and
other customers and areas now or hereafter supplied, or to be
supplied, gas by Grantee, together with the right to use Grantor's
streets for the purpose of laying and maintaining pipes, or such
other apparatus necessary to supply gas to Grantor, and to do all
things reasonably necessary to supply gas to Grantor, not otherwise
in conflict with any of 'the terms and conditions of this franchise.
or reasonable ordinances of Grantor. Grantee shall locate all
facilities and equipment so that such will not interfere with
Grantor's use of its streets, and shall not cause a hazard to the
public health, safety, welfare, and aesthetics of Grantor, or
unreasonably inconvenience any of the property owners contiguous
thereto.
Section 2. Definitions. Whenever words and phrases are used
herein, they shall have the respective meanings assigned to them in
the following definitions, unless the context in which they are
used shall clearly import a different meaning:
a. Grantee - The City of Clearwater, a Florida municipal
corporation., in its present incorporated form, or as may
subsequently be reorganized, consolidated, or reincorporated.
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ordinance 95 - 453
b. Grantor, the City of Port Richey, a Florida municipal
corporation, in its present incorporated form, or as may
subsequently be reorganized, consolidated, or reincorporated,
and all inhabitants and properties therein.
c. Streets - all public highways, roads, streets, rights -of-
way, lanes, alleys, courts, and bridges (excluding the area
above the bridge deck level).
•d. Gas - natural gas, commingled gas, or any reasonable
substitute therefor, except liquid petroleum (propane) gas.
e. Facilities or equipment - pipe, pipeline, tube, main,
service, trap, vent, 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 Grantor's streets, and used or
useful in the distribution of gas.
f. Gross receipts from the sale of gas - all revenues
received by Grantee as a result of ' the sale of Gas to the
Grantor.
Section 3. Use of Public Streets. With respect to the right,
privilege and franchise granted to Grantee in Section 1, Grantee
shall have the right, privilege, franchise, power and authority to
use the streets, avenues, alleys, easements, wharves, bridges,
public thoroughfares, public grounds and other public places of
Grantor as they now exist or may hereafter be constructed, opened,
laid out or extended during the term of this franchise.
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Ordinance 95 - 453
a. Grantee shall provide Grantor with a detailed three (3)
year plan for expansion of gas services in the City of Port
Richey.
b. Grantee shall not cut into any road for installation of
facilities or equipment without the prior expressed permission
of the City Council, and shall, at all times, install gas
facilities by using a "jack and bore" or "directional bore"
method of installation.
C. Grantee will maintain a minimum vertical separation of
eighteen (18) inches and a minimum five (5) foot horizontal
separation from any and all municipal water and sewer lines
during installation of gas facilities, unless otherwise,
approved by Grantor's City Manager in writing.
d. Grantee will submit and have approved by the Port Richey
Building Official, all construction plans and specifications .
i
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 Federal Department of
Transportation specifications.
Section 4. Customer Services. Grantee shall furnish twenty
four hours of continuous daily service to each gas service
customer. Failure of Grantee to furnish gas to any such person for
any cause within its control for a period of seventy -two (72) hours
shall act as a default of this franchise at the option of Grantor.
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Ordinance 95 - 453
Grantee may be liable for damages for failure to provide Service to
any of its consumers, as such may be provided by individual
contracts between the Grantee and its consumers; provided, however,
that Grantee 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 return on Grantee's investment. Such policy shall
be the same as Grantee applies within the City of Clearwater.
Section 5. Rates. The rates, charges and fees to be charged
by the Grantee for gas service to consumers within the corporate
limits of Grantor during the term of this franchise shall be the
same rates charged by Grantee 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 rates.
Section 6. Franchise Fee. In consideration of the granting
of this franchise, and commencing upon the enactment of this
franchise, and each year of the franchise thereafter, Grantor shall
be entitled to receive from Grantee a franchise fee equal to five
percent (5 %) of Grantee's gross revenues from the sale of Gas to
residential, commercial and industrial customers. Grantee will pay
any and all licenses, assessments, or other impositions which may
now or hereinafter be assessed, levied, or imposed by Grantor, by
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Ordinance 9.5 - 453
the 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
Grantor or the Tax Collector, or any other constitutional officer
of Pasco County, Florida, upon Grantee's facilities and property
and Grantee's business and operations without deduction from gross
receipts for calculating the monthly 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 month
following the end of each calendar quarter.
Grantee shall at all times comply with all reasonable
ordinances, rules and regulations enacted or passed by the Grantor
not in conflict with the terms of this franchise. Grantee shall
have the right to make, establish or maintain and enforce such
reasonable regulations for the operation of its distribution system
i
as may be reasonably necessary and proper, not inconsistent with
the terms of this franchise and any ordinance of the Grantor.
Grantee may, in its discretion, refuse to furnish gas service to
any customer who is delinquent on any bill rendered, or for other
reasonable grounds, in accordance with the same procedures as
Grantee provides for its consumers in the City of Clearwater.
Grantee agrees that all documents relating to this franchise shall
be and remain a public record. Grantee agrees to furnish Grantor
a list of all franchise customers in the City of Port Richey upon
demand and without cost.
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Ordinance 95 - 453
Section 7. Annexation. In the event of the annexation of any
territory to the present corporate limits of Grantor, such annexed
territory and all portions of the gas system of Grantee 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 Grantor to notify
Grantee in writing within thirty (30) days after the effective date
of every such annexation.
Section 8. Extension of Service. In consideration of the
rights granted under this franchise and the duration of this
franchise, the Grantee agrees that its facilities to be installed
within the corporate limits of Grantor will be expanded to provide
service to new customers on the terms and conditions hereinafter
set forth. Such expansion shall occur on the following terms and
conditions, to -wit:
J
a. 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 the Grantee, but, at a minimum, shall be
follows:
Gas service shall be extended if the construction costs
expended to service such customer(s) including, but not
limited to debt service, expenses, and cost of fuel, will
be recovered by Grantee through rates paid by customer(s)
within a maximum of 7 years. If an application for gas
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Ordinance 95 - 453
service does not meet the 7 -year payback period, then, in
such event, such customer(s), may make a lump sum
contribution in aid of construction to allow the 7 -year
payback standard to be met.
b. In the event the system -wide formula provides for a
formula longer than seven (7) years, that longer period shall
be used.
Section 9. 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 Grantee 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 gas should be interrupted, the Grantee 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 as soon as practically possible.
Section 10. Competition. As a further consideration of this
franchise, Grantor 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 the Grantee, its
successors and assigns. Nothing herein is intended to prohibit the
Grantor from approving any other gas franchise ordinance to any
other gas service provider.
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ordinance 95 - 453
Section 11. Extension of Franchise. Upon expiration of this
franchise, or upon expiration of any extensions provided for in
this paragraph, said franchise shall automatically be renewed for
five (5) year periods until such time as the Grantor provides to
Grantee, prior to the end of the initial term or the end of any
additional five (5) year period, a six (6) months written notice of
Grantor's election not to extend the franchise for an additional
five (5) year period. Grantee shall have, for a period of one (1)
year after such termination, the right to sell or assign any or all
of its piping and equipment to a third party, who at the time of
termination or subsequent thereto, possesses the ability and
authority to provide gas service in those areas previously served
by Grantee.
Section 12. Interlocal Agreement. The parties acknowledge
that the Grantee has the legal authority pursuant to the Florida
i
Statutes to provide gas service and, further, that Grantor, upon
appropriate exercise of its powers could also provide such service.
The Grantor and Grantee have determined it is in the best interests
of both parties and their citizens for Grantee to provide gas
service within the corporate limits of Grantor as defined herein.
Although the right to provide such gas service is being granted
hereunder by this franchise ordinance, it is the intent of Grantor
and Grantee that this ordinance, to the extent necessary,
constitute also an interlocal agreement pursuant to the provisions
of the Florida Interlocal Cooperative Act of 1969, as amended.
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Ordinance 95 - 453
Section 13. Indemnification. To the extent permitted or
limited by law, Grantee shall, at all times, indemnify and hold
Grantor harmless from any claim, action, suit, in law or equity,
asserted against Grantor for any act or omission of Grantee, by any
third party, including the payment of reasonable attorney's fees
and cost of defense. 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 S 768.28
Florida Statutes) , Grantee shall be required to purchase or acquire
liability insurance with aggregate limits of $3,000,000, and will
name Grantor as an additional insured under said policies of
insurance, including any plan or program for self insurance or.
retained limits by the Grantee. Nothing herein is intended to
waive or limit sovereign immunity of the Grantor or Grantee.
Section 14. Assignment. The rights and obligations of -the
grantee under this Ordinance may not be assigned without the
expressed written permission of the City Council.
Section 15. Conflict. All ordinances and part of ordinances
in conflict herewith be and the same are hereby repealed.
Section 16. Severability. It is declared to be the intent of
the City Council of the City of 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,
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Ordinance 95 - 453
sentence, clause or provision and shall not be affected by such
holding.
Section 17. Effective Date. This Ordinance shall take effect
and be in force from and after approval of same by the City Council
of the City of Port Richey, or ten (10) days after passage,
whichever date occurs earlier, and upon approval of an Interlocal
Agreement between the City of Port Richey and the City of
Clearwater.
The above and foregoing Ordinance was read by title only and
passed by a majority vote upon its first reading at a Regular
Meeting of the City Council of the City of Port Richey, Florida,
held on the day of , 1995.
ROGER M NAUSED, Mayor
ATTEST:
SHTRhEY D SCH, City-blerk
The above and foregoing Ordinance was duly adopted at a
meeting held by the City Council of the City of Port Richey,
Florida, on the day of �24 "-d-, , 1995.".0. `;" '
•,r
ROGER NAUSED, Mayor-
ATTEST: '
SHIRLEY D SCH! City Clerk portrch \ardinanc \95 -453c1
11
INTERLOCAL AGREEMENT REGARDING
GAS SERVICE BETWEEN THE CITY OF PORT RICHEY,
FLORIDA, AND THE CITY OF CLEARWATER, FLORIDA
THIS AGREEMENT, made and entered into this day of
, 1995, by and between The City of Port Richey,
Florida, a Florida municipal corporation, by and through its City
Commission (herein "PORT RICHEY ") and the City of Clearwater, a
Florida municipal corporation, by and through its City Commission
(herein "CITY ").
W I T N E S S E T H:
WHEREAS, it is in the best interests of the citizens of PORT
RICHEY to be provided gas service whenever and wherever feasible;
and,
WHEREAS, pursuant to Chapters 166 and 180, Florida Statutes,
the CITY has the power and the present capability to provide such
gas service in PORT RICHEY; and
WHEREAS, PORT RICHEY and the CITY wish to set forth their
agreement with respect to the provision of such gas service to
those areas within the corporate limits of 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 hereby
incorporated within this agreement in full.
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SECTION 2. TERM; GRANT; DEFINITION OF GAS.
For a period of 30 years from the effective date of this
agreement, PORT RICHEY, its successors, and assigns, does hereby
give and grant to the City, 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 PORT
RICHEY, as such limits may be expanded, all facilities required by
the CITY to supply gas to PORT RICHEY, its inhabitants and the
places of business located within the corporate limits of PORT
RICHEY, as such limits may be expanded, and other customers and
areas now or hereafter supplied, or to be supplied, gas by CITY.
The exercise of this authority and franchise by the City shall be
consistent with the terms and conditions of the Ordinance attached
hereto as Exhibit "All which is incorporated herein and hereby made
a part hereof as if fully set forth herein.
The word "Gas" shall mean natural gas and /or commingled gas
which is distributed in pipes. It shall not mean bottle gas or any
other fuel; however, nothing herein shall be interpreted to
prohibit CITY from engaging in the sale of liquid petroleum
(propane) gas.
SECTION 3. EXTENSION.
Upon expiration of this agreement, or upon expiration of any
extensions provided for in this paragraph, said agreement shall
automatically be renewed for five (5) year periods until such time
as PORT RICHEY provides to CITY, prior to the end of the initial
term or the end of any additional five (5) year period, a six (6)
2
/4
months written notice of PORT RICHEYIs election
franchise for an additional five (5) yew
notification of non- extension, the CITY shall:_ —�
year from the end of the term, the right, privily ,
removing all franchise piping and equipment,
assigning any or all of its piping and equipment
who at the time of termination or subsequent they— -
ability and authority to provide gas service — —
previously served by Grantee. In the event of - - -
equipment, the CITY shall repair all of PORT
the same condition as theretofore existed.
SECTION 4 TERMS AND CONDITIONS.
All terms and conditions as set forth in PCs - - -
No. 95 -453 , being adopted simultaneously he=ev - -
franchise ordinance being attached hereto a —
incorporated herein by reference as if fully s_
IN WITNESS WHEREOF, PORT RICHEY and CI-`? -
executed this agreement on the day and year b-�=
CITY OF POI - -
By.-
ATTEST:
City Clerk
3
r
Countersigned:
Rita Garvey
Mayor - Commissioner
Approved as to form and
legal sufficiency:
Pamela K. Akin
City Attorney
CITY OF CLEARWATER, FLORIDA
By:
Elizabeth M. Deptula
City Manager
Attest:
Cynthia E. Goudeau
City Clerk