18-16RESOLUTION NO. 18-16
A RESOLUTION OF THE CITY OF CLEARWATER,
FLORIDA, ACCEPTING THE FRANCHISE, PRIVILEGE AND
CONCESSION OF THE CITY OF BELLEAIR BEACH,
FLORIDA, FOR THE PURPOSE OF FURNISHING GAS
WITHIN THE CITY OF BELLEAIR BEACH AND TO ITS
INHABITANTS; PROVIDING AN EFFECTIVE DATE.
WHEREAS, renewal of a gas system franchise has been approved by the adopting
of Ordinance No. 18-05 of the City of Belleair Beach on September 5, 2018, a copy of
which is attached to this resolution and incorporated herein by reference; 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 Belleair Beach, Florida, by the adoption of Ordinance
No. 18-05 of the City of Belleair Beach, 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
Belleair Beach 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 Belleair Beach.
PASSED AND ADOPTED this (Z)-1.11 day ofS,d=anR , 2018.
Approved as to form:
Laura Mahony
Assistant City Attorney
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George N. Cretekos
Mayor
Attest:
LJtilaL'
Rosemarie Call
City Clerk
Resolution No. 18-16
ORDINANCE 18-05
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
BELLEAIR BEACH, FLORIDA, GRANTING TO THE CITY OF
CLEARWATER, FLORIDA, A FRANCHISE FOR THE PURPOSE OF
FURNISHING NATURAL GAS SERVICES WITHIN THE
CORPORATE LIMITS OF THE CITY OF BELLEAIR BEACH;
PROVIDING FOR PURPOSE; PROVIDING FOR DEFINITIONS,
PROVIDING FOR TERMS AND GRANT; PROVIDING FOR RATES;
PROVIDING FOR EXTENSION OF SERVICE; PROVIDING FOR
FORCE MAJEURE; PROVIDING FOR A NON -COMPETE;
PROVIDING FOR TERMINATION; PROVIDING FOR FRANCHISE
FEE; PROVIDING FOR FAVORED NATION PROVISION;
PROVIDING FOR SERVICE STANDARDS; PROVIDING FOR
COSTS, OWNERSHIP, REPAIR, RELOCATION; PROVIDING FOR
INDEMNIFICATION; PROVIDING FOR INSURANCE; PROVIDING
FOR COMPLIANCE OF ORDINANCES; PROVIDING FOR
AVAILABILITY OF RECORDS; PROVIDING FOR ASSIGNMENT OF
GRANT; PROVIDING FOR CONFLICT; PROVIDING FOR
ALTERNATIVE REMEDIES; PROVIDING FOR ACCEPTANCE;
PROVIDING FOR RESOLUTION BY GRANTEE; PROVIDING FOR
GOVERNING LAW; PROVIDING FOR NOTICES; PROVIDING FOR
SEVERABILITY; AND PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, in addition and supplemental to their other powers, CITY OF BELLEAIR
BEACH and CITY OF 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 CITY OF BELLEAIR BEACH to
be provided gas service whenever and wherever feasible; and,
WHEREAS, pursuant to Chapters 166 and 180, Florida Statutes, CITY OF
CLEARWATER, d/b/a CLEARWATER GAS SYSTEM, has the power and the present
capability to provide such gas services in CITY OF BELLEAIR BEACH; and
WHEREAS, CITY OF BELLEAIR BEACH and CITY OF CLEARWATER wish to set
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forth the grants and conditions with respect to the provisions of such Gas Service to those areas
within the corporate limits of CITY OF BELLEAIR BEACH and CITY OF BELLEAIR
BEACH desires by virtue hereof to grant a Gas Franchise to the CITY OF CLEARWATER, a
renewal of Ordinance 03-14.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY
OF BELLEAIR BEACH, FLORIDA:
SECTION 1. PURPOSE.
The parties acknowledge that CITY OF CLEARWATER has the legal authority pursuant
to Florida Statutes to provide gas service and, further, that CITY OF BELLEAIR BEACH, upon
appropriate exercise of its powers could also provide such service. CITY OF BELLEAIR
BEACH and CITY OF CLEARWATER have determined it is in the best interests of both parties
and their citizens for CITY OF CLEARWATER to provide gas service within the corporate
limits of CITY OF BELLEAIR BEACH as defined herein.
SECTION 2. 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 CITY OF BELLEAIR
BEACH.
(b) Grantee or CITY OF CLEARWATER shall mean the City of City of Clearwater, a
Florida municipal corporation, in its present incorporated form, or as may
subsequently be reorganized, consolidated, or reincorporated.
(c) Grantor or CITY OF BELLEAIR BEACH shall mean the CITY OF BELLEAIR
BEACH, 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 truck or
stored in tanks; however, nothing herein shall be interpreted to prohibit CITY OF
CLEARWATER from engaging in the sale of liquid petroleum (propane) gas.
(e) Gross Revenue shall mean revenues received by CITY OF CLEARWATER from any
Customer from the sale, transportation, distribution or delivery of Gas or Natural Gas.
(f) Facilities or Equipment shall mean pipe, pipe line, tube, main, service, trap, vent,
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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, or on Customer property up to the meter.
(g) Franchise or Franchise Agreement shall mean this ordinance, as passed and adopted
by CITY OF BELLEAIR BEACH and accepted or adopted by CITY OF
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 CITY OF BELLEAIR BEACH 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.
For a period of Fifteen (15) years from the date the Franchise granted herein becomes
effective, CITY OF BELLEAIR BEACH, its successors and assigns, do hereby agree and give
and grant to CITY OF 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 CITY OF BELLEAIR BEACH, in the rights-of-way.
easements, streets, avenues, alleys, squares, bridges, viaducts, which are suitable and otherwise
legally available for such use, and within publicly -owned lands, buildings and facilities as
expressly requested by CITY OF BELLEAIR BEACH, (by way of example and not limitation,
the CITY OF BELLEAIR BEACH city hall buildings) all facilities required by CITY OF
CLEARWATER to supply Gas to CITY OF BELLEAIR BEACH, its inhabitants and the places
of business located within CITY OF BELLEAIR BEACH corporate limits and other customers
and areas now or hereafter supplied, or to be supplied, Gas by CITY OF CLEARWATER. The
limitation as to public lands as described above is not intended to be a limitation as to rights-of-
way or easements which are suitable and otherwise legally available for such use.
The parties may renew this Franchise for another fifteen (15) year term, by written
notice to the other party 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 the parties renew
this Franchise, the party receiving a request for renewal shall provide written notice of
acceptance within ninety (90) days of receipt of the request. Failure to provide such notice shall
constitute an approval of the request and this Franchise shall then expire at the end of this term.
If the parties mutually agree to the further renewal of this Franchise, this Franchise shall continue
for another fifteen (15) year term, otherwise this Agreement shall expire at the end of the initial
term. Any rights granted hereunder are non-exclusive .
SECTION 4. RATES.
The rates, charges and fees to be charged by CITY OF CLEARWATER for Gas service
within the corporate limits of CITY OF BELLEAIR BEACH during the term of this franchise
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shall be as provided in CITY OF CLEARWATER's standard, system -wide rate schedule now or
hereafter approved by City of Clearwater City Council, or as modified by the Clearwater City
Manager, or other designated CITY OF CLEARWATER official, to the extent Clearwater City
Manager, or other designated CITY OF 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 CITY OF CLEARWATER under
the general laws of the State of Florida, or CITY OF 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 CITY OF CLEARWATER and other customers in cities that have a franchise
or agreement with CITY OF CLEARWATER for gas service.
SECTION 5. RESERVED.
SECTION 6. EXTENSION OF SERVICE.
In consideration of the rights granted under this franchise and the duration of this
franchise, CITY OF CLEARWATER agrees that its facilities to be installed within the corporate
limits of CITY OF BELLEAIR BEACH 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 CITY OF CLEARWATER and as applicable to
the citizens of CITY OF CLEARWATER and other franchise areas.
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 CITY 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, CITY OF 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 8. NON -COMPETE PROVISION.
As a further consideration of this franchise agreement and franchise granted hereunder,
CITY OF BELLEAIR BEACH 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 CITY OF
CLEARWATER, its successors and assigns, in the service territory within CITY OF BELLEAIR
BEACH delineated by the Florida Public Service Commission as CITY OF CLEARWATER's
service territory by PSC Order #00 -0371 -PAA -GU. CITY OF CLEARWATER's service
territory is shown on Exhibit "A" incorporated herein. Pursuant to Sections 6 and 12 hereof,
CITY OF CLEARWATER and CITY OF BELLEAIR BEACH have agreed to a certain
extension of service policy. In the event CITY OF BELLEAIR BEACH desires to provide Gas
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service where CITY OF CLEARWATER has notified CITY OF BELLEAIR BEACH in writing
said areas do not qualify under the feasibility formula, CITY OF BELLEAIR BEACH may
provide CITY OF CLEARWATER notice of its intent to provide such Gas service in said areas.
CITY OF 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 CITY OF BELLEAIR
BEACH regarding said service. In the event CITY OF CLEARWATER has not delivered written
notice to CITY OF BELLEAIR BEACH within this sixty (60) day period that CITY OF
CLEARWATER shall provide Gas service to said areas, CITY OF BELLEAIR BEACH may
provide Gas service in said defined areas thereafter.
SECTION 9. TERMINATION OF AGREEMENT.
Upon expiration of this agreement, CITY OF CLEARWATER shall have the right,
privilege and option of removing all piping and equipment installed or maintained by CITY OF
CLEARWATER in accordance with this Franchise. In the event of the removal of such
equipment, CITY OF CLEARWATER shall repair all of CITY OF BELLEAIR BEACH and
customers' property to the same condition as theretofore existed. CITY OF CLEARWATER
shall also have the right to sell any or all of its piping and equipment to CITY OF BELLEAIR
BEACH or a third party at the time of termination or subsequent thereto. In the event of
acquisition by CITY OF BELLEAIR BEACH 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 CITY
OF CLEARWATER and connected with its general system of distribution used for the purpose
of serving other than customers located in CITY OF BELLEAIR BEACH 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.
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, CITY OF BELLEAIR BEACH shall be entitled to
receive from CITY OF CLEARWATER a franchise fee which will equal six percent (6%) of the
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gross receipts from the sale of Gas or Natural Gas within the corporate limits of CITY OF
BELLEAIR BEACH for the term of this Franchise. Payment of the franchise fee by CITY OF
CLEARWATER to CITY OF BELLEAIR BEACH 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 CITY OF CLEARWATER, or any affiliated entity, from or
in connection with the distribution of Gas in the CITY OF BELLEAIR BEACH and the
transmission of Gas from and through the CITY OF BELLEAIR BEACH by parties other than
CITY OF CLEARWATER pursuant to the terms of this Franchise; provided, however, gross
receipts shall not include franchise fees, taxes, late payment charges, monies for Gas service or a
component thereof paid by customers to a third party, unaffiliated with CITY OF
CLEARWATER and where CITY OF CLEARWATER receives no payment from the third party
or the customer.
SECTION 11. FAVORED NATIONS.
In the event CITY OF 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
CITY OF CLEARWATER shall notify CITY OF BELLEAIR BEACH and CITY OF
CLEARWATER shall be obligated upon written request of CITY OF BELLEAIR BEACH 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
CITY OF BELLEAIR BEACH ability to regulate CITY OF CLEARWATER and the
Distribution System, or allow CITY OF BELLEAIR BEACH to increase the franchise fee, CITY
OF BELLEAIR BEACH and CITY OF CLEARWATER shall negotiate in good faith
modifications to this franchise ordinance 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, CITY OF
CLEARWATER, its successors and assigns shall furnish twenty four (24) hours of continuous
service each and every day to any customer within CITY OF BELLEAIR BEACH desiring the
same and failure upon the part of CITY OF CLEARWATER to: furnish Gas as herein provided
for any cause within the control of CITY OF CLEARWATER for a period of seventy-two (72)
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hours or more; and/or other breach of term hereof, either not being corrected within thirty (30)
days after written notice by CITY OF BELLEAIR BEACH thereof, may act as a forfeiture of
this Franchise in the discretion of CITY OF BELLEAIR BEACH. CITY OF CLEARWATER
shall have the opportunity to be heard by Belleair Beach City Council at a duly convened
meeting of the Council prior to consideration of any such forfeiture.
As provided in Section 6 hereof, CITY OF 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 CITY OF
CLEARWATER's investment. CITY OF CLEARWATER covenants and agrees that it will not
arbitrarily or unreasonably refuse to make extensions when requested to do so by CITY OF
BELLEAIR BEACH.
SECTION 13. COSTS; OWNERSHIP; REPAIRS; RELOCATION.
CITY OF CLEARWATER shall install the necessary facilities or equipment at its own
cost and expense and same shall be and remain the property of CITY OF CLEARWATER; and
CITY OF CLEARWATER's facilities or equipment and other physical properties used in
connection with the furnishing of Natural Gas under this franchise shall be free from any ad
valorem tax of CITY OF BELLEAIR BEACH as long as the same remains the property of CITY
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
CITY OF 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. CITY OF 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, CITY OF CLEARWATER
shall notify and consult with CITY OF BELLEAIR BEACH; provided, however in the case of an
emergency, CITY OF CLEARWATER shall only be required to notify CITY OF BELLEAIR
BEACH. Should CITY OF 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 CITY OF BELLEAIR BEACH shall have such repairs and
restoration done and the expense incident thereto shall be paid by CITY OF CLEARWATER.
In accordance with this ordinance the CITY OF BELLEAIR BEACH 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 CITY
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OF CLEARWATER or its agent, without claim for reimbursement. Further, CITY OF
BELLEAIR BEACH shall at all times have the power to pass all regulatory ordinances affecting
utilities which, in the opinion of the City Council, are required in the interest of public health,
safety, welfare or accommodation. Prior to requiring CITY OF CLEARWATER to relocate,
CITY OF BELLEAIR BEACH shall give CITY OF CLEARWATER written notice of such
requirement and the opportunity to be heard by Belleair Beach City Council as to the costs of
such relocation to CITY OF CLEARWATER and possible alternative locations and routes, for
CITY OF BELLEAIR BEACH improvements. Ultimately, the decision as to such need for
relocation shall be CITY OF BELLEAIR BEACH. If CITY OF BELLEAIR BEACH shall
require CITY OF 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 CITY OF BELLEAIR BEACH,
CITY OF BELLEAIR BEACH shall require said person or third party desiring or occasioning
such alteration, relocation or change to reimburse CITY OF CLEARWATER for any loss, cost
or expense caused by or arising out of such change, alteration or relocation of any portion of
CITY OF CLEARWATER's facilities. CITY OF CLEARWATER agrees that it will not
intentionally interfere with, change, or injure any water pipes, drains, or sewers of CITY OF
BELLEAIR BEACH unless it has received express permission from CITY OF BELLEAIR
BEACH or its duly authorized representative.
Should it become necessary in the installation of gas lines or facilities to relocate water or
sewer lines of CITY OF BELLEAIR BEACH now or hereafter installed, then such work shall be
done at the expense of CITY OF CLEARWATER and not CITY OF BELLEAIR BEACH. It is
understood that in all instances the facilities of CITY OF BELLEAIR BEACH shall have a
reasonable right-of-way and preference over that of CITY OF CLEARWATER herein.
SECTION 14. INDEMNIFICATION.
To the extent permitted by law, the CITY OF CLEARWATER does hereby and shall at
all times indemnify, defend and hold CITY OF BELLEAIR BEACH 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 CITY OF CLEARWATER's negligent operation of the
Distribution System within CITY OF BELLEAIR BEACH during the term of this Franchise, or
otherwise negligently caused by CITY OF CLEARWATER in connection with the operation of
CITY OF CLEARWATER's Franchise pursuant to this Ordinance; or by or in consequence of
any negligence, excluding the sole negligence of CITY OF BELLEAIR BEACH, 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 CITY OF CLEARWATER, its agents, servants, or contractors.
CITY OF CLEARWATER agrees to defend, indemnify and save harmless CITY OF
BELLEAIR BEACH against liability arising from or based upon violation of any federal, state,
county or municipal law, ordinance or regulation by CITY OF CLEARWATER, its agents,
servants, employees, or contractors. This indemnification provision obligates CITY OF
CLEARWATER to defend CITY OF BELLEAIR BEACH from any and all liability claims and
all suits and actions that may be brought against CITY OF BELLEAIR BEACH resulting from
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the sole negligence of CITY OF CLEARWATER, its agents, servants or contractors. CITY OF
CLEARWATER may defend CITY OF BELLEAIR BEACH with CITY OF CLEARWATER's
in-house staff counsel at trial and all appellate levels or CITY OF CLEARWATER may provide
for CITY OF BELLEAIR BEACH 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 CITY OF 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 CITY OF CLEARWATER or CITY OF BELLEAIR BEACH 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 CITY OF CLEARWATER or
CITY OF BELLEAIR BEACH may have under §768.28 and is not intended to and shall not be
interpreted to alter the extent of CITY OF CLEARWATER's or CITY OF BELLEAIR BEACH
waiver of sovereign immunity under §768.28. CITY OF CLEARWATER and CITY OF
BELLEAIR BEACH 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.
CITY OF BELLEAIR BEACH shall be furnished proof of insurance coverage by CITY
OF CLEARWATER to include no less than:
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
Workers' 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.
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The insurance coverage required herein may be provided by CITY OF CLEARWATER
by self-insurance, by self -funding, by purchase, or by any combination thereof at the sole option
of CITY OF CLEARWATER. Insurance coverage and limits shall be evidenced by delivery to
CITY OF BELLEAIR BEACH of letters of self-insurance or self -funding executed by CITY OF
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 CITY OF BELLEAIR BEACH, a
photocopy of each applicable insurance policy, including all endorsements, will be provided to
CITY OF BELLEAIR BEACH.
SECTION 16. COMPLIANCE WITH ORDINANCES.
CITY OF CLEARWATER, its successors and assigns, shall at all times comply with all
ordinances, rules and regulations enacted or passed by CITY OF BELLEAIR BEACH not in
conflict with the terms of this Franchise and CITY OF 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 CITY OF BELLEAIR BEACH , 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, CITY OF
CLEARWATER shall provide CITY OF BELLEAIR BEACH with a map showing all CITY OF
CLEARWATER's Gas lines and facilities within CITY OF BELLEAIR BEACH. Upon CITY
OF BELLEAIR BEACH request, CITY OF CLEARWATER shall provide an update of such
map to reflect changes in City of Clearwater's Gas lines and facilities. Further, CITY OF
CLEARWATER in accordance with applicable law, shall provide for review and inspection of
such maps and also accounts and records of CITY OF CLEARWATER and/or all such
information regarding CITY OF BELLEAIR BEACH that CITY OF BELLEAIR BEACH or its
representatives may from time to time reasonably request or require. CITY OF
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 CITY OF
BELLEAIR BEACH, be open for examination by CITY OF BELLEAIR BEACH and CITY OF
BELLEAIR BEACH representatives during ordinary business hours, and such records shall be
retained by CITY OF CLEARWATER for a period of three (3) years, or as otherwise required
by law. Upon any map information of CITY OF CLEARWATER becoming available in
electronic format, CITY OF CLEARWATER shall at CITY OF BELLEAIR BEACH request
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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 Belleair Beach City Council expressed by a
Resolution, 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 City Council are the financial wherewithal and technical
experience and capabilities of the proposed Assignee. Notwithstanding the foregoing, CITY OF
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 CITY OF CLEARWATER in the
operation of its Distribution System for the purpose of securing payment of monies borrowed by
CITY OF CLEARWATER, provided that any successor -in -interest to the Distribution System
agrees to be bound by the terms of the Franchise Agreement.
SECTION 19. CONFLICT; FILING.
Upon the effective date of this ordinance and acceptance by the CITY OF
CLEARWATER, the franchise provided in CITY OF BELLEA1R BEACH Ordinance 03-14
shall be of no further force and effect. Upon full execution hereof, CITY OF 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 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. ACCEPTANCE.
(a) CITY OF 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 separate Franchise Agreement, if
necessary.
(b) Each party 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. CITY OF CLEARWATER further pledges that
no promise or inducement, oral or written, has been made to any city employee or
[GM 18-2064-083/222782/3] 11
official regarding receipt of the Franchise.
(c) Each party further acknowledges that it has carefully read the terms and conditions of
this ordinance that also operates as a Franchise Agreement and accepts without
reservation the obligations imposed by the terms and conditions herein.
(d) CITY OF CLEARWATER shall provide timely written notice to CITY OF
BELLEAIR BEACH for any waivers, exceptions, or declaratory rulings, filed with
the FPSC or any other state or federal regulatory agency, directly affecting this
ordinance.
SECTION 22. RESOLUTION BY GRANTEE.
The Franchise granted herein shall not become effective in whole or in part until the
grantee shall, by Resolution duly passed and adopted by its Council, accept the Franchise,
privileges and concession herein granted and in said resolution, agree to comply with the terms
and conditions of the said franchise and said resolution to contain an agreement to comply with
all reasonable ordinances passed by the City Council of the CITY OF BELLEAIR BEACH not
in conflict with the terms of said Franchise, a certified copy thereof to be delivered to the City
Clerk of the CITY of BELLEAIR BEACH. Upon the receipt of a certified copy of the resolution
aforesaid, this ordinance and the franchise therein provided shall become effective for all
purposes.
SECTION 23. GOVERNING LAW.
This Ordinance and the Franchise created hereunder 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 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 CITY OF CLEARWATER shall be sent to:
Chuck Warrington
Managing Director
Clearwater Gas System
P.O. Box 4748
Clearwater, Florida 33758
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Attn: Mayor
City of Clearwater
112 S. Osceola Ave.
Clearwater, Florida 33756-5103
Notices to CITY OF BELLEAIR BEACH shall be sent to:
The Mayor and City Council
City of Belleair Beach, Florida
444 Causeway Boulevard
Belleair Beach, Florida 33755
Attn: City Manager and
City Attorney
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.
It is declared to be the intent of the City Council of the City of Belleair Beach,
Florida, that if any section, subsection, sentence, clause or provision of this ordinance is held
invalid, or unconstitutional by any court of competent jurisdiction, the remainder of the
ordinance shall be construed as not having contained said section, subsection, sentence, clause or
provision and shall not be affected by such holding.
SECTION 26. EFFECTIVE DATE.
This Ordinance shall take effect upon adoption by the City Council and approval by the
City Commission of the City of Clearwater while in a regular or special session.
The above and foregoing Ordinance was read by title only and passed by a majority vote
upon its first reading at a Regular Meeting
, 2018.
EST:
Patricia A. Gentry, City Clerk
L slie Ford Notaro, Mayor
The above and foregoing Ordinance was read by title only and was passed by majority
vote upon its second and final reading at the Regular Meeting of the City Council of the City of
Belleair Beach, Florida, held on the 54 t day of cte,$.140 , 2018.
ST:
Patricia A. Gentry, City Clerk
Recd 06/08/18; Revised 6/9/18/ PJM // .2 18
[GM 18-2064-083/222782/1)
7,14
Leslie Ford Notaro, Mayor
13
I, Patricia A. Gentry, City Clerk of the City of Belleair Beach, Florida, do
hereby certify that the attached and foregoing is a true and correct copy of:
Ordinance 18-05, an ordinance of the City Council of the City of Belleair
Beach, Florida, granting to the City of Clearwater, Florida, a franchise for the
purpose of furnishing natural gas services within the corporate limits of the
City of Belleair Beach, Florida.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official
seal of the City of Belleair Beach, Florida, this 12th day of September, 2018.
Patricia A. Gentry, CMC
City Clerk
444 Causeway Boulevard • Belleair Beach, Florida 33786-3326 • Phone 727.595.4646 • Fax 727.593.1409