14-09RESOLUTION NO. 14 -09
A RESOLUTION OF THE CITY OF CLEARWATER,
FLORIDA, ACCEPTING THE FRANCHISE, PRIVILEGE
AND CONCESSION OF THE CITY OF TARPON SPRINGS,
FLORIDA, FOR THE PURPOSE OF FURNISHING GAS
WITHIN THE CITY OF TARPON SPRINGS AND TO ITS
INHABITANTS; PROVIDING AN EFFECTIVE DATE.
WHEREAS, renewal of a gas system franchise has been approved by the
adopting of Ordinance No. 2014 -11 of the City of Tarpon Springs on July 1St, 2014, a
copy of which is attached hereto and incorporated herein as Exhibit "A "; and
WHEREAS, the terms and conditions of the gas system franchise are
acceptable; now, therefore,
BE IT RESOLVED BY THE CITY COUNCIL 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 Tarpon Springs, Florida, by the adoption of Ordinance
No. 2014 -11 of the City of Tarpon Springs, are hereby accepted, and the City Council of
the City of Clearwater does hereby agree to comply with the terms and conditions of the
franchise and with all reasonable ordinances adopted by the City Council of the City of
Tarpon Springs 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 the City of Tarpon Springs.
PASSED AND ADOPTED this 1 7th day of July , 2014.
Approved as to form:
Laura Mahony
Assistant City Attorney
clearlc^C,ra f
George N. Cretekos
Mayor
Attest:
cap CaJL
Rosemarie Call
City Clerk
Resolution No. 14 -09
ORDINANCE 2014 -11
AN ORDINANCE OF THE CITY OF TARPON SPRINGS, FLORIDA, A
FLORIDA MUNICIPAL CORPORATION (HEREINAFTER "TARPON
SPRINGS ") GRANTING TO THE CITY OF CLEARWATER, FLORIDA,
ITS LEGAL REPRESENTATIVES, SUCCESSOR AND ASSIGNS,
(HEREINAFTER "CLEARWATER "), A GAS FRANCHISE AND
IMPOSING CERTAIN CONDITIONS RELATING THERETO:
PROVIDING FOR REPEAL OF ALL ORDINANCES OR PARTS OF
ORDINANCES IN CONFLICT HEREWITH; PROVIDING FOR AN
EFFECTIVE DATE.
WHEREAS, in addition and supplemental to their other powers, TARPON SPRINGS
and CLEARWATER, pursuant to Chapter 163, Part I, Florida Statutes, as amended, commonly
known as the "Florida Interlocal Cooperation Act of 1969 ", are authorized and empowered to
cooperate with each other on a basis of mutual advantage and thereby to provide services and
facilities in a manner and pursuant to forms of government organization that will best accord
with geographic, economic, population, and other factors influencing the needs and development
of local communities; and
WHEREAS, it is in the best interests of the citizens of TARPON SPRINGS to be
provided gas service whenever and wherever feasible; and,
WHEREAS, pursuant to Chapters 166 and 180, Florida Statutes, CLEARWATER, d/b /a
CLEARWATER GAS SYSTEM, has the power and the present capability to provide such gas
services in TARPON SPRINGS; and
WHEREAS, TARPON SPRINGS and CLEARWATER wish to set forth the grants and
conditions with respect to the provisions of such gas service to those areas within the corporate
limits of TARPON SPRINGS and TARPON SPRINGS desires by virtue hereof to grant a
franchise to CLEARWATER.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF TARPON
SPRINGS, FLORIDA:
SECTION 1. PURPOSE.
The parties acknowledge that CLEARWATER has the legal authority pursuant to Florida
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Exhibit A
Statutes to provide gas service and, further, that TARPON SPRINGS, upon appropriate exercise
of its powers could also provide such service. TARPON SPRINGS 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 TARPON SPRINGS as defined herein.
SECTION 2. INTERPRETATION OF RECITALS.
The recitals and findings contained above are hereby incorporated herein.
SECTION 3. DEFINITIONS.
Whenever in this ordinance the words or phrases hereafter in this section defined are
used, they shall have the respective meanings assigned to them in the following definitions,
unless in the given instance, the context wherein they are used shall clearly import a different
meaning:
(a) CUSTOMER shall mean any person, firm, public or private corporation or
governmental agency served by the Grantee within the corporate limits of Tarpon
Springs.
(b) GRANTEE or CLEARWATER shall mean the City of Clearwater, a Florida
municipal corporation, in its present incorporated form, or as may subsequently be
reorganized, consolidated, or reincorporated.
(c) GRANTOR or TARPON SPRINGS shall mean the City of Tarpon Springs, a Florida
municipal corporation, in its present incorporated form, or as may subsequently be
reorganized, consolidated, or reincorporated.
(d) GAS or NATURAL GAS shall mean natural gas and/or manufactured gas and/or a
mixture of gases which is distributed in pipes and measured by meter on the
CUSTOMER'S premise. It shall not mean propane gas or liquefied petroleum gas
(commonly referred to as "bottled gas ") or any other fuel that is typically delivered by
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truck or stored in tanks; however, nothing herein shall be interpreted to prohibit
CLEARWATER from engaging in the sale of liquid petroleum (propane) gas.
(e) GROSS REVENUES shall mean revenues received by CLEARWATER from any
CUSTOMER from the sale, transportation, distribution or delivery of GAS.
(f) FACILITIES or EQUIPMENT shall mean pipe, pipe line, tube, main, service, trap,
vent, vault, manhole, meter, gauge, regulator, valve, conduit, appliance, attachment,
structure or structures, and appurtenances used or useful in the distribution of gas,
located or to be located in, upon, along, across, or under the streets or within the
public rights of way.
(g) FRANCHISE or FRANCHISE AGREEMENT shall mean this agreement, as passed
and adopted by TARPON SPRINGS and accepted by CLEARWATER, as provided
in Section 26 below.
(h) DISTRIBUTION SYSTEM shall mean any and all transmission pipe lines, main pipe
lines and CUSTOMER pipe lines, together with all necessary and desirable
appurtenances, that are situated within the corporate limits of TARPON SPRINGS
and are reasonably necessary for the sale, transportation, distribution or delivery of
NATURAL GAS for the public and private use of CUSTOMERS.
SECTION 3. TERM; GRANT; DEFINITION OF GAS.
For a period of Fifteen (15) years from the date the FRANCHISE granted herein becomes
effective, TARPON SPRINGS, its successors and assigns, do hereby agree and give and grant to
CLEARWATER, its successors and assigns, a franchise, and any necessary right and authority to
exercise the power to furnish gas and to construct, operate and maintain within the corporate
limits of TARPON SPRINGS, in the rights -of -way, easements, lanes, alleys, sidewalks, squares,
or public places which are suitable and otherwise legally available for such use, all facilities
required by CLEARWATER to supply Gas to TARPON SPRINGS, its inhabitants and the
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places of business located within TARPON SPRINGS' corporate limits and other customers and
areas now or hereafter supplied, or to be supplied, Gas by CLEARWATER.
Extension(s): For a period of six (6) calendar months beginning seven and one -half (7 1/2)
years following the Effective Date, until the last day of year eight (8) of this Franchise ( "Initial
Renewal Option Period "), TARPON SPRINGS shall have the right to provide written notice to
CLEARWATER, in accordance with the requirements for the giving of notice as provided for
herein, that TARPON SPRINGS is electing to terminate the Franchise at the end of the Fifteen
(15) year term, in which case this Franchise shall terminate on the last day of the Fifteenth year
of the Franchise. If TARPON SPRINGS does not provide notice of termination by the last day
of the Initial Renewal Option Period, this Franchise shall automatically be extended for a term of
five (5) additional years ( "Extended Term ").
Every four and one -half (4 1/2) years thereafter, during the period of six (6) months
commencing on the first day of the five (5) year anniversary of the Initial Renewal Option Period
( "Supplemental Renewal Option Periods "), TARPON SPRINGS shall have the right to provide
CLEARWATER notice of termination in accordance with the requirements for the giving of
notice as provided for herein, in which case this Franchise shall terminate on the last day of the
Extended Term. If TARPON SPRINGS does not provide notice of termination by the last day of
the Supplemental Renewal Option Periods, this Franchise shall automatically be extended for an
additional term of five (5) years until such time as the Franchise has reached the end of its
thirtieth (30th) year, in which case the Franchise shall terminate with no renewal options.
SECTION 4. RATES.
The rates, charges and fees to be charged by CLEARWATER for Gas service within the
corporate limits of TARPON SPRINGS during the term of this franchise shall be as provided in
CLEARWATER's standard, system -wide rate schedule now or hereafter approved by
CLEARWATER's City Council, or as modified by the CLEARWATER Manager, or other
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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 and other
customers in cities that have a franchise or agreement with CLEARWATER for gas service.
SECTION 5. ANNEXATION.
In the event of the annexation of any territory to the present corporate limits of TARPON
SPRINGS, 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 as of the time
such annexation becomes effective. It shall be the responsibility of TARPON SPRINGS to notify
CLEARWATER in writing within thirty (30) clays after the effective date of every such
annexation by certified mail, return receipt requested. CLEARWATER shall implement such
annexation within thirty (30) days of the receipt of the notice from TARPON SPRINGS.
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 TARPON SPRINGS 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 and as applicable to the citizens of
CLEARWATER and other franchise areas.
If the Franchise is noticed to be terminated at any time prior to the thirtieth (301) year,
thereby resulting in the number of years remaining in the Franchise being less than the number of
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years required to reach feasibility, CLEARWATER may require a Customer requesting new
service facilities to contribute a payment in the amount necessary to reach a shortened feasibility
formula based on the number of years remaining in the Franchise as opposed to
CLEARWATER's then- effective normal feasibility formula. If the Customer does not agree to
contribute said payment, CLEARWATER retains the right to refuse expansion of its facilities.
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 S. COMPETITION.
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As a further consideration of this interlocal agreement and FRANCHISE granted
hereunder, TARPON SPRINGS 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, in the service territory within TARPON SPRINGS
delineated by the Florida Public Service Commission as CLEARWATER's service territory by
PSC Order #00- 0371- PAA -GU. CLEARWATER's service territory is shown on Exhibit "A"
attached hereto and incorporated herein. Pursuant to Sections 6 and 12 hereof, CLEARWATER
and TARPON SPRINGS have agreed to a certain extension of service policy. In the event
TARPON SPRINGS desires to provide Gas service where CLEARWATER has notified
TARPON SPRINGS in writing said areas do not qualify under the feasibility formula, TARPON
SPRINGS 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 TARPON SPRINGS
regarding said service. In the event CLEARWATER has not delivered written notice to
TARPON SPRINGS within this sixty (60) day period that CLEARWATER shall provide Gas
service to said areas, TARPON SPRINGS may provide Gas service in said defined areas
thereafter.
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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 FRANCHISE. In the event of the removal of such equipment,
CLEARWATER shall repair all of TARPON SPRINGS' 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 TARPON SPRINGS or a third party at the time of termination or
subsequent thereto. In the event of acquisition by TARPON SPRINGS of such piping and
equipment by purchase, condemnation, or otherwise, this franchise shall at once terminate;
provided however, excepted from any right to acquire such piping and equipment are piping and
equipment owned by CLEARWATER and connected with its general system of distribution used
for the purpose of serving other than customers located in TARPON SPRINGS' municipal
boundaries.
Further, violation by either Party of any of the covenants, terms, and conditions hereof, or
default by either Party in observing or carrying into effect any of said covenants, terms and
conditions, shall authorize and empower the non - defaulting party to declare a termination of this
Franchise Agreement; provided, however, that before such action by the non - defaulting Party
shall become operative and effective, the defaulting party shall have been served by the non-
defaulting Party with a written notice setting forth all matters pertinent to such violation or
default, and the defaulting Party shall have had a period of sixty (60) days after service of such
notice or, in the event such cure reasonably requires a period of more than sixty (60) days, to
present a plan, satisfactory to the non - defaulting Party, acting reasonably, to effect such cure;
and provided further that any violation or default resulting from a strike, lockout, an act of God,
or any other cause beyond the control of the defaulting Party shall not constitute grounds for
termination.
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SECTION 10. FRANCHISE FEE
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 the effective date of this FRANCHISE, TARPON SPRINGS 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 TARPON SPRINGS for the term of this
FRANCHISE. Payment of the franchise fee by CLEARWATER to TARPON SPRINGS shall be
made for each Quarter, no later than the forty-fifth (45th) day after the end of each quarter. The
franchise fee payment shall be deemed paid on time if postmarked within forty-five (45) days of
the end of the preceding quarter.
Gross receipts, for purposes of computing such franchise fee, includes all revenues, less
uncollectable accounts, received by CLEARWATER, or any affiliated entity, from or in
connection with the distribution of Gas in the City of TARPON SPRINGS and the transmission
of Gas from and through the City of TARPON SPRINGS 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; provided, further,
gross receipts shall not include monies for Gas service to an industrial customer engaged in
manufacturing or processing activities which create or change raw or unfinished materials into
another form or product and who consumes the Gas in such activities, including but not limited
to activities such as laundry and dry cleaning plants; cold storage plants; steam laundries;
machine shops; rebuilders of airplanes and airplane engines; mines; fruit, meat and vegetable
packing and pre-cooling plants; quarries; railroad shops; water and sewer treatment plants; sewer
lift stations; agricultural pumps; or any company whose Standard Industrial Code (SIC) is
classified within the range of 0100 -3999, as published by the Occupational Safety and Health
Administration (OSHA). "Transmission of Gas" as used in this Section shall mean the
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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 TARPON SPRINGS and CLEARWATER shall be obligated upon
written request of TARPON SPRINGS to agree to an amendment to this Ordinance 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 TARPON SPRINGS' ability to regulate
CLEARWATER and the DISTRIBUTION SYSTEM, or allow TARPON SPRINGS to increase
the franchise fee, TARPON SPRINGS and CLEARWATER shall negotiate in good faith
modifications to this franchise 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 herein below, CLEARWATER, its
successors and assigns shall furnish twenty four (24) hours of continuous service each and every
day to any customer within TARPON SPRINGS 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 or more; and/or other breach of term
hereof, either not being corrected within thirty (30) days after written notice by TARPON
SPRINGS thereof, may at as a forfeiture of this FRANCHISE in the discretion of TARPON
SPRINGS. CLEARWATER shall have the opportunity to be heard by TARPON SPRINGS'
Commission at a duly convened meeting of the Commission prior to consideration of any such
forfeiture.
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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
CLEARWATER's investment. CLEARWATER covenants and agrees that it will not arbitrarily
or unreasonably refuse to make extensions when requested to do so by TARPON SPRINGS.
SECTION 13. COSTS; OWNERSHIP; 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 with the furnishing of
GAS under this franchise shall be free from any ad valorem tax of TARPON SPRINGS 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-lay, 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, unless there is a previously agreed upon repair schedule. CLEARWATER shall be
permitted to perform work on its facilities or extensions of facilities during all daylight hours and
perform emergency work after such hours when necessary to restore service or for safety
reasons. 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 TARPON SPRINGS; provided, however in the
case of an emergency, CLEARWATER shall only be required to notify TARPON SPRINGS.
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,
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sidewalks or public places which may have been excavated, dug or disturbed by it, its employees
or agents, then TARPON SPRINGS shall have such repairs and restoration done and the expense
incident thereto shall be paid by CLEARWATER.
In accordance with the ordinance of TARPON SPRINGS, TARPON SPRINGS shall
have the right to control at all times distribution of any space in, over, across or under all streets,
alleys, public grounds or other public places, occupied by public utility fixtures, and when, in the
opinion of the City Commission, the public interest so requires, to cause such fixtures to be
relocated by CLEARWATER or its agent, without claim for reimbursement. Further, TARPON
SPRINGS shall at all times have the power to pass all regulatory ordinances affecting utilities
which, in the opinion of the Commission, are required in the interest of public health, safety,
welfare or accommodation. Prior to requiring CLEARWATER to relocate, TARPON SPRINGS
shall give CLEARWATER written notice of such requirement and the opportunity to be heard by
TARPON SPRINGS' Commission as to the costs of such relocation to CLEARWATER and
possible alternative locations and routes, for TARPON SPRINGS' improvements. Ultimately, the
decision as to such need for relocation shall be TARPON SPRINGS'. If TARPON SPRINGS
shall require CLEARWATER to adapt or conform any portion of its DISTRIBUTION SYSTEM
or in any way to alter, relocate or change its property to enable any other person or third party to
use said streets alleys, public grounds or other public places of TARPON SPRINGS, TARPON
SPRINGS shall require said person or third party desiring or occasioning such alteration,
relocation or change to reimburse CLEARWATER for any loss, cost or expense caused by or
arising out of such change, alteration or relocation of any portion of CLEARWATER'S
facilities. CLEARWATER agrees that it will not intentionally interfere with, change, or injure
any water pipes, drains, or sewers of TARPON SPRINGS unless it has received express
permission from TARPON SPRINGS or its duly authorized representative.
Should it become necessary in the installation of Gas lines or facilities to relocate water
or sewer lines of TARPON SPRINGS now or hereafter installed, then such work shall be done at
the expense of CLEARWATER and not TARPON SPRINGS. It is understood that in all
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instances the facilities of TARPON SPRINGS shall have a reasonable right -of -way and
preference over that of CLEARWATER herein.
SECTION 14. INDEMNIFICATION
CLEARWATER does hereby and shall at all times indemnify, defend and hold TARPON
SPRINGS harmless from or on account of any claims, losses, injuries or damages, received or
sustained by any person or persons caused by or arising out of CLEARWATER'S negligent
operation of the DISTRIBUTION SYSTEM within TARPON SPRINGS during the term of this
FRANCHISE, or otherwise negligently caused by CLEARWATER in connection with the
operation of CLEARWATER's FRANCHISE pursuant to this Ordinance; or by or in
consequence of any negligence, excluding the sole negligence of TARPON SPRINGS, in
connection with the same; or by or on account of the use of any improper materials or by or on
account of any negligent at or omission of CLEARWATER, its agents, servants, or contractors.
CLEARWATER agrees to defend, indemnify and save harmless TARPON SPRINGS 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 TARPON SPRINGS from any
and all liability claims and all suits and actions that may be brought against TARPON SPRINGS
resulting from the sole negligence of CLEARWATER, its agents, servants or contractors.
CLEARWATER may defend TARPON SPRINGS with CLEARWATER's in -house staff
counsel at trial and all appellate levels or CLEARWA'I'r K may provide for TARPON SPRINGS'
defense with outside counsel by paying for all attorney's fees, costs and trial expenses. The
decision to defend with in -house counsel or with outside counsel shall be within
CLEARWATER's sole discretion.
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 TARPON SPRINGS is entitled to pursuant to §768.28, Florida
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Statutes, as may be amended. Furthermore, this provision is not intended to nor shall be
interpreted as limiting or in any way affecting any defense CLEARWATER or TARPON
SPRINGS may have under §768.28 and is not intended to and shall not be interpreted to alter the
extent of CLEARWATER's or TARPON SPRINGS' waiver of sovereign immunity under
§768.28. CLEARWATER and TARPON SPRINGS shall be fully responsible for their own acts
of negligence or their respective agent's 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 shall be construed as consent by either party to be sued by third parties in any manner
arising out of this franchise. The provisions of this section shall survive the expiration or earlier
termination of this Franchise Agreement.
SECTION 15. INSURANCE
TARPON SPRINGS shall be furnished proof of insurance coverage by CLEARWATER
to include:
General Liability: $200,000.00 per Person/$300,000.00 per Occurrence self -
insured retention with statutory limits per Section 768.28, Florida Statutes.
Excess Insurance: $7,000,000.00 per Occurrence, $14,000,000.00 Aggregate
Excess Insurance with self - insurance retention of $500,000.00.
Automobile Liability: $200,000.00 per Person/$300,000.00 per Occurrence
self- insured retention with statutory limits per Section 768.28, Florida Statutes.
Excess Insurance: $7,000,000.00 per Occurrence, $14,000,000.00 Aggregate
Excess Insurance with self- insured retention of $500,000.00
Worker's Compensation and Employer's Liability: Statutory coverage as
per the State of Florida per Occurrence with self- insured retention of
$600,000.00, as may be amended based on availability in the insurance
marketplace. Excess Insurance applicable per Occurrence.
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
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CLEARWATER. Insurance coverage and limits shall be evidenced by delivery to TARPON
SPRINGS 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 TARPON SPRINGS, a photocopy of each
applicable insurance policy, including all endorsements, will be provided to TARPON
SPRINGS.
SECTION 16. COMPLIANCE wrrH ORDINANCES.
CLEARWATER, its successors and assigns, shall at all times comply with all ordinances,
rules and regulations enacted or passed by TARPON SPRINGS 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 TARPON SPRINGS , and to protect itself from fraud or 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, as the law may allow.
SECTION 17. AVAILABILITY OF RECORDS; MAPS AND REPORTS.
As soon as practicable after the effective date of this FRANCHISE, CLEARWATER
shall provide TARPON SPRINGS with a map showing all CLEARWATER's Gas lines and
facilities within TARPON SPRINGS. Upon TARPON SPRINGS' request, CLEARWATER shall
provide an update of such map to reflect changes in Clearwater's Gas lines and facilities. Further,
CLEARWATER in accordance with applicable law, shall provide for review and inspection of
such maps and also accounts and records of CLEARWATER and/or all such information
regarding TARPON SPRINGS that TARPON SPRINGS or its representatives may from time to
time reasonably request or require. CLEARWATER's financial records shall be kept and
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maintained in accordance with generally accepted accounting principles. All of these records
shall, on written request of TARPON SPRINGS, be open for examination by TARPON
SPRINGS and TARPON SPRINGS' representatives during ordinary business hours, and such
records shall be retained by CLEARWATER for a period of three (3) years, or as otherwise
required by law. Upon any map information of CLEARWATER becoming available in
electronic format, CLEARWATER shall at TARPON SPRINGS' request make any map
information available in that format.
SECTION 18. ASSIGNMENT OF GRANT.
This grant or FRANCHISE, or any renewals thereof, shall not be leased, assigned, or
otherwise alienated, except with the consent of the TARPON SPRINGS' City Commission
expressed by ordinance, which consent shall not be unreasonably withheld, and evidence by a
written assignment and consent to same. In consideration of consenting to such assignment the
matters which may be considered by the Commission are the financial wherewithal and technical
experience and capabilities of the proposed Assignee. Notwithstanding the foregoing,
CLEARWATER may, at its option alienate and transfer this FRANCHISE in connection with its
merger and consolidation with any other entity or pledge or mortgage such FRANCHISE in
connection with the physical property owned and used by CLEARWATER in the operation of its
DISTRIBUTION SYSTEM for the purpose of securing payment of monies borrowed by
CLEARWATER, provided that any successor -in- interest to the DISTRBUTION SYSTEM
agrees to be bound by the terms of the Franchise Agreement.
SECTION 19. CONFLICT; FILING.
Upon the effective date of the FRANCHISE, the franchise provided in TARPON
SPRINGS' Ordinance 83 -27 shall be of no further force and effect. Upon full execution hereof,
CLEARWATER shall file with the Clerk a fully executed copy of this ordinance for recording in
the public records in and for Pinellas County, Florida.
SECTION 20. ALTERNATIVE REMEDIES.
No provision of this ordinance or the FRANCHISE granted hereunder shall be deemed to
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bar the right of either Party to seek or obtain judicial relief from a violation of any provision of
this ordinance, the FRANCHISE or any rule, regulation requirement or directive promulgated
under the FRANCHISE, whether administratively, judicially, or both. Neither the existence of
other remedies identified in this ordinance nor the exercise thereof shall be deemed to bar or
otherwise limit the right of either Party to recover fines, penalties or monetary damages for such
violation by means of specific performance, injunctive relief or mandate or any other
administrative remedy or judicial remedy at law or in equity.
SECTION 21. ENTIRE AGREEMENT
(a) CLEARWATER acknowledges that upon its acceptance of the FRANCHISE it does
so relying upon its own investigation and understanding of the power and authority of
a municipality generally to enter into a FRANCHISE AGREEMENT.
(b) Each party, by making this agreement, acknowledges that it has not been induced to
accept same by any promise, verbal or written, by or on behalf of the other party or
by any third person regarding the FRANCHISE not expressed herein.
CLEARWATER further pledges that no promise or inducement, oral or written, has
been made to any city employee or official regarding receipt of the FRANCHISE.
(c) Each party further acknowledges that it has carefully read the terms and conditions of
this ordinance and the FRANCHISE AGREEMENT and accepts without reservation
the obligations imposed by the terms and conditions herein and in the FRANCHISE
AGREEMENT.
(d) CLEARWATER shall provide timely written notice to TARPON SPRINGS for any
waivers, exceptions, or declaratory rulings, filed with the FPSC or any other state or
federal regulatory agency, directly affecting the FRANCHISE AGREEMENT with
TARPON SPRINGS.
SECTION 22. CHANGES IN PROVISIONS HEREOF
Changes in the terms and conditions hereof may be made by written agreement between
TARPON SPRINGS and CLEARWATER, executed by both parties.
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SECTION 23. GOVERNING LAW
This FRANCHISE shall be governed by the laws of the State of Florida and applicable
federal law.
SECTION 24. NOTICE
Notice under this Agreement shall be in writing and sent by Registered or Certified
Mail, Return Receipt Requested, or by courier, express or overnight delivery, and by confirmed
e -mail.
The date such notice shall be deemed to have been given shall be the business day of
receipt if received during business hours, the first business day after the business day of receipt
if received after business hours on the preceding business day, the fast business day after the
date sent by courier, express or overnight ( "next day delivery") service, or the third business day
after the date of the postmark on the envelope if mailed, whichever occurs first.
Notices to CLEARWATER shall be sent to:
Chuck Warrington
Managing Director
Clearwater Gas System
P.O. Box 4748
Clearwater, Florida 33758
Notices to TARPON SPRINGS shall be sent to:
Any party hereto may change its address or designate different or other persons or
entities to receive copies by notifying the other party in a manner described in this Section.
SECTION 25. SEVERABILITY
If any section, part of section, paragraph, sentence, or clause of this Ordinance shall be
adjudged by a court of competent jurisdiction to be invalid, such decision shall not affect the
IGM14 -2064- 041/148228/11 18
validity of any other portion hereof. If either party to this Franchise Agreement feels that
elimination of the specific portion of the Franchise Agreement adjudged to be invalid results in
significant adverse consequences to it, then that party may terminate this Franchise Agreement
by providing thirty (30) days written notice to the other party.
SECTION 26. EFFECTIVE DATE
This FRANCHISE shall become effective upon the first day of the month after approval
by CLEARWATER by resolution, duly passed and adopted by its City Council, accepting the
franchise granted herein.
SECTION 27. This Ordinance shall take effect immediately upon passage and adoption.
PASSED AND ADOPTED BY THE CITY CQMMISSION OF THE CITY OF
TARPON SPRINGS, FLORIDA, THIS DAY OF 2014
A1 1 EST:
11110'''4 lerk
Ali S Pli,
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[GM14- 2064 - 041/148228/1 ] 19
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Mayor
PASSED and ADOPTED this 2nd day of July , 2014.
DAVID O. ARCHIE, MAYOR
, COMMISSIONER
MOTION BY:COMMISSIONER
LARSEN
SECOND BY :COMMISSIONER BANTHER
ATTEST
VOTE ON MOTION
COMMISSIONER SIEBER Yes
COMMISSIONER BANTHER Yes
COMMISSIONER TARAPANI Yes
VICE -MAYOR LARSEN Yes
MAYOR ARCHIE Yes
FIRST READING: June 17. 2014
SECOND READING: July 2, 2014
20 Ordinance 2014 -11