14-39RESOLUTION NO. 14 -39
A RESOLUTION OF THE CITY OF CLEARWATER,
FLORIDA, ACCEPTING THE FRANCHISE, PRIVILEGE
AND CONCESSION OF THE CITY OF OLDSMAR,
FLORIDA, FOR THE PURPOSE OF FURNISHING GAS
WITHIN THE CITY OF OLDSMAR 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 -14 of the City of Oldsmar on November 18, 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 Oldsmar, Florida, by the adoption of Ordinance No.
2014 -14 of the City of Oldsmar, 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 Oldsmar
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 Oldsmar.
PASSED AND ADOPTED this 4th day of December, 2014.
Approved as to form:
Laura Mahony
Assistant City Attorney
cteOfvftcr 4105
George N. Cretekos
Mayor
Attest:
Liter C?
Rosemarie CaII
City Clerk
Resolution No. 14 -39
CERTIFICATION
I HEREBY CERTIFY THAT TH,IS IS
A TRUE AND CORRECT COPY 'OF:
OF THE PUBLIC Ot DS;OF;OLI)SMAR
a614/1 =
ORDINANCE NO. 2014-14
AN ORDINANCE OF THE CITY OF OLDSMAR, FLORIDA, A FLORIDA
MUNICIPAL CORPORATION (HEREINAFTER "OLDSMAR ")
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; AND PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, in addition and supplemental to their other powers, OLDSMAR 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 OLDSMAR 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 OLDSMAR; and
WHEREAS, OLDSMAR 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 OLDSMAR and OLDSMAR desires by virtue hereof to grant a
franchise to CLEARWATER.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF
OLDSMAR, FLORIDA:
SECTION 1. PURPOSE.
The parties acknowledge that CLEARWATER has the legal authority pursuant to
Florida Statutes to provide gas service and, further, that OLDSMAR, upon appropriate
exercise of its powers could also provide such service. OLDSMAR 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 OLDSMAR 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
OLDSMAR.
(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 OLDSMAR shall mean the City of OLDSMAR, 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
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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 truck or stored in tanks; however, nothing
herein shall be interpreted to prohibit CLEARWATER from engaging in the
sale of liquid petroleum (propane) gas. The gas to be furnished by
CLEARWATER shall in no case be of less quality than 1000 British Thermal
Units per cubic foot, and shall be conducted through the pipes at a pressure
sufficient to insure satisfactory operation.
(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 OLDSMAR and accepted by CLEARWATER, as
provided in Section 27 below.
(h) DISTRIBUTION SYSTEM shall mean any and all natural gas pipe lines
operated at pressures of 250 p.s.i. or less, service pipe lines and
CUSTOMER pipe lines, together with all necessary and desirable
appurtenances, that are situated within the corporate limits of OLDSMAR and
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are reasonably necessary for the sale, transportation, distribution or delivery
of NATURAL GAS for the public and private use of CUSTOMERS.
SECTION 4. TERM; GRANT.
For a period of Twenty (20) years from the date the FRANCHISE granted herein
becomes effective, OLDSMAR, 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 OLDSMAR, 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 OLDSMAR, its inhabitants and the places of business located within
OLDSMARs corporate limits and other customers and areas now or hereafter supplied,
or to be supplied, Gas by CLEARWATER. If CLEARWATER wishes to renew this
franchise for another twenty (20) year term, it shall provide written notice to OLDSMAR
at least one hundred - eighty (180) days and no more than three hundred sixty five (365)
days prior to the termination of the term of this franchise. If OLDSMAR agrees to
CLEARWATER'S notice to renew this franchise, OLDSMAR shall provide written notice
within ninety (90) days of receipt of CLEARWATER's notice. OLDSMAR' failure to
provide such notice shall constitute an approval of CLEARWATER's request and this
franchise shall then continue for another twenty (20) year term. If the parties mutually
agree to the renewal of this franchise, the franchise shall continue for another twenty
(20) year term, otherwise this Agreement shall expire at the end of the initial term of this
franchise.
SECTION 5. RATES.
The rates, charges and fees to be charged by CLEARWATER for Gas service within the
corporate limits of OLDSMAR during the term of this franchise shall be as provided in
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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
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 6. ANNEXATION.
In the event of the annexation of any territory to the present corporate limits of
OLDSMAR, 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 OLDSMAR to notify CLEARWATER in writing within thirty (30) days
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 OLDSMAR.
SECTION 7. 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 OLDSMAR 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
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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 twentieth
(20th) year, thereby resulting in the number of years remaining in the Franchise being
less than the number of 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 8. 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 9. COMPETITION.
As a further consideration of this interlocal agreement and FRANCHISE granted
hereunder, OLDSMAR 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 OLDSMAR
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
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on Exhibit "A" attached hereto and incorporated herein. Pursuant to Sections 7 and 13
hereof, CLEARWATER and OLDSMAR have agreed to a certain extension of service
policy. In the event OLDSMAR desires to provide Gas service where CLEARWATER
has notified OLDSMAR in writing said areas do not qualify under the feasibility formula,
OLDSMAR 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
OLDSMAR regarding said service. In the event CLEARWATER has not delivered
written notice to OLDSMAR within this sixty (60) day period that CLEARWATER shall
provide Gas service to said areas, OLDSMAR may provide Gas service in said defined
areas thereafter.
SECTION 10. 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 OLDSMAR' 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 OLDSMAR or a third party at the time of
termination or subsequent thereto. In the event of acquisition by OLDSMAR 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 OLDSMAR' 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
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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.
SECTION 11. 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, OLDSMAR shall be entitled to
receive from CLEARWATER a franchise fee which will equal five percent (5 %) of the
gross receipts from the sale of Gas within the corporate limits of OLDSMAR for the term
of this FRANCHISE. Payment of the franchise fee by CLEARWATER to OLDSMAR
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 OLDSMAR and
the transmission of Gas from and through the City of OLDSMAR by parties other than
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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 water and sewer treatment plants or sewer lift
stations. "Transmission of Gas" as used in this section shall mean the 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 12. 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 OLDSMAR and CLEARWATER
shall be obligated upon written request of OLDSMAR 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
OLDSMAR's ability to regulate CLEARWATER and the DISTRIBUTION SYSTEM, or
allow OLDSMAR to increase the franchise fee, OLDSMAR and CLEARWATER shall
negotiate in good faith modifications to this franchise to reflect such enactment,
adoption, repeal, amendment, modification, change or interpretation.
SECTION 13. 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 OLDSMAR desiring the same and failure
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upon the part of CLEARWATER to: fumish 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 OLDSMAR thereof, may act as a forfeiture of this FRANCHISE in the
discretion of OLDSMAR. CLEARWATER shall have the opportunity to be heard by
OLDSMAR's Council at a duly convened meeting of the Council prior to consideration of
any such forfeiture.
As provided in Section 7 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 OLDSMAR.
SECTION 14. 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 fumishing of GAS under this franchise shall be free from any ad
valorem tax of OLDSMAR 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
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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 from 7:00
a.m. until 5:00 p.m. daily, Monday through Friday, 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 OLDSMAR; provided, however in the case of an emergency,
CLEARWATER shall only be required to notify OLDSMAR. 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,
sidewalks or public places which may have been excavated, dug or disturbed by it, its
employees or agents, then OLDSMAR shall have such repairs and restoration done and
the expense incident thereto shall be paid by CLEARWATER.
In accordance with the ordinance of OLDSMAR, OLDSMAR 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 Council, the public interest so requires, to cause such
fixtures to be relocated by CLEARWATER or its agent, without claim for reimbursement.
Further, OLDSMAR shall at all times have the power to pass all regulatory ordinances
affecting utilities which, in the opinion of the Council, are required in the interest of
public health, safety, welfare or accommodation. Prior to requiring CLEARWATER to
relocate, OLDSMAR shall give CLEARWATER written notice of such requirement and
the opportunity to be heard by OLDSMAR's Council as to the costs of such relocation to
CLEARWATER and possible alternative locations and routes, for OLDSMAR's
improvements. Ultimately, the decision as to such need for relocation shall be
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OLDSMAR's. If OLDSMAR 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 OLDSMAR, OLDSMAR 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 OLDSMAR unless it has received express permission from
OLDSMAR or its duly authorized representative.
Should it become necessary in the installation of Gas lines or facilities to relocate
water or sewer lines of OLDSMAR now or hereafter installed, then such work shall be
done at the expense of CLEARWATER and not OLDSMAR. It is understood that in all
instances the facilities of OLDSMAR shall have a reasonable right -of -way and
preference over that of CLEARWATER herein.
SECTION 15. INDEMNIFICATION.
CLEARWATER does hereby and shall at all times indemnify, defend and hold
OLDSMAR 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
OLDSMAR 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 OLDSMAR, 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 act or omission of
CLEARWATER, its agents, servants, or contractors. CLEARWATER agrees to defend,
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indemnify and save harmless OLDSMAR 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 OLDSMAR from any and all liability claims
and all suits and actions that may be brought against OLDSMAR resulting from the sole
negligence of CLEARWATER, its agents, servants or contractors. CLEARWATER may
defend OLDSMAR with CLEARWATER's in -house staff counsel at trial and all appellate
levels or CLEARWATER may provide for OLDSMAR's defense with outside counsel by
paying for all attomey'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 OLDSMAR is entitled to pursuant to §768.28, Florida
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
OLDSMAR may have under §768.28 and is not intended to and shall not be interpreted
to alter the extent of CLEARWATER's or OLDSMAR's waiver of sovereign immunity
under §768.28. CLEARWATER and OLDSMAR 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 16. INSURANCE.
OLDSMAR shall be fumished proof of insurance coverage by CLEARWATER to
include:
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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 CLEARWATER. Insurance coverage and limits shall be evidenced by delivery
to OLDSMAR 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 OLDSMAR, a photocopy of each applicable insurance policy, including all
endorsements, will be provided to OLDSMAR.
SECTION 17. COMPLIANCE WITH ORDINANCES.
CLEARWATER, its successors and assigns, shall at all times comply with all
ordinances, rules and regulations enacted or passed by OLDSMAR not in conflict with
the terms of this FRANCHISE and CLEARWATER shalt 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
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with the terms of this FRANCHISE and the ordinances of OLDSMAR , and to protect
itself from fraud or imposition and may, in its discretion, refuse to fumish 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 18. AVAILABILITY OF RECORDS; MAPS AND REPORTS.
As soon as practicable after the effective date of this FRANCHISE,
CLEARWATER shall provide OLDSMAR with a map showing all CLEARWATER's Gas
lines and facilities within OLDSMAR. Upon OLDSMAR's request, CLEARWATER shall
provide an update of such map and GIS Shapefile 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 OLDSMAR that OLDSMAR or its
representatives may from time to time reasonably request or require. CLEARWATER's
financial records shall be kept and maintained in accordance with generally accepted
accounting principles. All of these records shall, on written request of OLDSMAR, be
open for examination by OLDSMAR and OLDSMAR's 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
OLDSMAR's request make any map information available in that format.
SECTION 19. 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 OLDSMAR City Council
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 Council are the
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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 20. CONFLICT; FILING.
Upon the effective date of the FRANCHISE, the franchise provided in
OLDSMAR's Ordinance 84 -16, as amended by OLDSMAR's Ordinance 2004 -02, 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 21. ALTERNATIVE REMEDIES.
No provision of this ordinance or the FRANCHISE granted hereunder shall be
deemed to 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.
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SECTION 22. 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 OLDSMAR 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 OLDSMAR.
SECTION 23. CHANGES IN PROVISIONS HEREOF.
Changes in the terms and conditions hereof may be made by written agreement
between OLDSMAR and CLEARWATER, executed by both parties.
SECTION 24. GOVERNING LAW.
This FRANCHISE shall be governed by the laws of the State of Florida and
applicable federal law.
17
SECTION 25. NOTICE.
Notice under this Agreement shall be in writing and sent by Registered or
Certified Mail, Retum 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 first 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 (or the then current)
Managing Director
Clearwater Gas System
P.O. Box 4748
Clearwater, Florida 33758
Notices to OLDSMAR shall be sent to:
Bruce Haddock (or the then current)
City Manager
City of Oldsmar
100 State Street West
Oldsmar, Florida 34677
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.
18
SECTION 26. 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 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 27. 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 28. This Ordinance shall take effect immediately upon passage and
adoption.
PASSED ON FIRST READING: `"� QVe-(iU- hoe -r' s-� , /�
PASSED ON SECOND READING AND ADOPTE
Approved as to form:
mas J. T
City Attorne
19
l8
oug
Mayor
Attest:
Ann Nixon
City Clerk
•
1
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CLEARWATER GAS SYSTEM / PEOPLES GAS
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CITY OF OLDSMAR
(GAS LINE LOCATION MAP)
A/ CLEARWATER GAS
OLDSMAR BASE MAP
9
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CITY OF OLDSMAR, OCT 2014
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