18-21RESOLUTION NO. 18-21
A RESOLUTION OF THE CITY OF CLEARWATER,
FLORIDA, ACCEPTING THE FRANCHISE, PRIVILEGE AND
CONCESSION OF THE CITY OF INDIAN ROCKS BEACH,
FLORIDA, FOR THE PURPOSE OF FURNISHING GAS
WITHIN THE CITY OF INDIAN ROCKS 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. 2018-10 of the City of Indian Rocks Beach on November 13, 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 Indian Rocks Beach, Florida, by the adoption of
Ordinance No. 2018-10 of the City of Indian Rocks 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 Indian Rocks 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 Indian Rocks Beach.
PASSED AND ADOPTED this 1 S day of November. 2018.
Approved as to form:
Laura Mahony
Assistant City Attorney
—Gt?o(ktr\Ct4,44
George N. Cretekos
Mayor
Attest:
Rosemarie Call
City Clerk
Resolution No. 18-21
CITY OF INDIAN ROCKS BEACH
ORDINANCE NO. 2018-10
AN ORDINANCE OF THE CITY OF INDIAN ROCKS BEACH,
FLORIDA, A FLORIDA MUNICIPAL CORPORATION
(HEREINAFTER "INDIAN ROCKS BEACH") 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, INDIAN ROCKS
BEACH 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 INDIAN ROCKS BEACH 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 INDIAN ROCKS BEACH; and
WHEREAS, INDIAN ROCKS BEACH 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 INDIAN ROCKS BEACH and INDIAN ROCKS BEACH desires by virtue
hereof to grant a gas franchise to CLEARWATER.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF
INDIAN ROCKS BEACH, FLORIDA:
SECTION 1. PURPOSE.
The parties acknowledge that CLEARWATER has the legal authority pursuant to Florida
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Statutes to provide gas service and, further, that INDIAN ROCKS BEACH, upon appropriate
exercise of its powers could also provide such service. INDIAN ROCKS BEACH 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 INDIAN ROCKS BEACH
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 INDIAN
ROCKS BEACH.
(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 INDIAN ROCKS BEACH shall mean the INDIAN ROCKS 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
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(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.
(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 ordinance, as passed
and adopted by INDIAN ROCKS BEACH and accepted by CLEARWATER, as
provided in Section 27 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 INDIAN ROCKS
BEACH and 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 Fifteen (15) years from the date the FRANCHISE granted herein becomes
effective, INDIAN ROCKS BEACH, 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 INDIAN ROCKS BEACH, in the rights-of-way or easements, which are
suitable and otherwise legally available for such use, and within publicly -owned lands, buildings
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and facilities as expressly requested by INDIAN ROCKS BEACH, (by way of example and not
limitation, the INDIAN ROCKS BEACH fire station and city hall buildings) all facilities
required by CLEARWATER to supply Gas to INDIAN ROCKS BEACH, its inhabitants and the
places of business located within INDIAN ROCKS BEACH corporate limits and other
customers and areas now or hereafter supplied, or to be supplied, Gas by 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.
If CLEARWATER wishes to renew this Franchise for another fifteen (15) year term, it
shall provide written notice to INDIAN ROCKS BEACH 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. INDIAN ROCKS BEACH shall approve or deny CLEARWATER's request to renew
this Franchise by providing written notice of same within ninety (90) days of receipt of
CLEARWATER's notice. If the parties mutually agree to the renewal of this Franchise, this
Franchise shall continue for another fifteen (15) year term, however, if terminated, this
Agreement shall expire at the end of the initial term. Any rights granted hereunder are non-
exclusive.
Notwithstanding any provision herein to the contrary, in the event the Parties have not
memorialized in writing, the renewal or termination of this Franchise by the expiration of the
then -effective term, this Franchise shall continue on a month-to-month basis in accordance with
the existing terms and conditions, until such time as the Franchise is renewed or terminated in
writing as provided for herein.
SECTION 5. RATES.
The rates, charges and fees to be charged by CLEARWATER for Gas service within the
corporate limits of INDIAN ROCKS BEACH during the term of this franchise shall be as
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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
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 INDIAN
ROCKS BEACH, 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 INDIAN ROCKS
BEACH to notify CLEARWATER in writing within thirty (30) days after the effective date of
every such annexation by certified mail, return receipt requested, or electronic mail.
CLEARWATER shall implement such annexation within thirty (30) days of the receipt of the
notice from INDIAN ROCKS BEACH.
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 INDIAN ROCKS 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 CLEARWATER and as applicable to the citizens of
CLEARWATER and other franchise areas.
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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, INDIAN ROCKS 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
CLEARWATER, its successors and assigns, in the service territory within INDIAN ROCKS
BEACH 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 7 and 13 hereof,
CLEARWATER and INDIAN ROCKS BEACH have agreed to a certain extension of service
policy. In the event INDIAN ROCKS BEACH desires to provide Gas service where
CLEARWATER has notified INDIAN ROCKS BEACH in writing said areas do not qualify
under the feasibility formula, INDIAN ROCKS BEACH 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 INDIAN ROCKS BEACH regarding said service. In the event
CLEARWATER has not delivered written notice to INDIAN ROCKS BEACH within this sixty
(60) day period that CLEARWATER shall provide Gas service to said areas, INDIAN ROCKS
BEACH may provide Gas service in said defined areas thereafter.
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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 INDIAN ROCKS BEACH 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 INDIAN ROCKS BEACH or a third party at the time of
termination or subsequent thereto. In the event of acquisition by INDIAN ROCKS 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 CLEARWATER and connected with its general system of
distribution used for the purpose of serving other than customers located in INDIAN ROCKS
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.
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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, INDIAN ROCKS BEACH 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 INDIAN ROCKS BEACH for the
term of this FRANCHISE. Payment of the franchise fee by CLEARWATER to INDIAN
ROCKS 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 CLEARWATER, or any affiliated entity, from or in
connection with the distribution of Gas in INDIAN ROCKS BEACH and the transmission of
Gas from and through INDIAN ROCKS BEACH by parties other than 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 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 transmission of natural gas and/or
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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 INDIAN ROCKS BEACH and CLEARWATER shall be obligated
upon written request of INDIAN ROCKS 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 INDIAN ROCKS BEACH ability to
regulate CLEARWATER and the DISTRIBUTION SYSTEM, or allow INDIAN ROCKS
BEACH to increase the franchise fee, INDIAN ROCKS BEACH and CLEARWATER shall
negotiate in good faith modifications to this franchise ordinance 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 INDIAN ROCKS BEACH 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 INDIAN
ROCKS BEACH thereof, may act as a forfeiture of this FRANCHISE in the discretion of
INDIAN ROCKS BEACH. CLEARWATER shall have the opportunity to be heard by INDIAN
ROCKS BEACH Commission at a duly convened meeting of the Commission prior to
consideration of any such forfeiture.
As provided in Section 6 hereof, CLEARWATER herein, its successors and assigns, shall
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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 INDIAN ROCKS
BEACH.
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 furnishing of
GAS under this franchise shall be free from any ad valorem tax of INDIAN ROCKS BEACH 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 INDIAN ROCKS BEACH; provided, however in
the case of an emergency, CLEARWATER shall only be required to notify INDIAN ROCKS
BEACH. 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,
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lanes, squares, sidewalks or public places which may have been excavated, dug or disturbed by
it, its employees or agents, then INDIAN ROCKS BEACH shall have such repairs and
restoration done and the expense incident thereto shall be paid by CLEARWATER.
In accordance with the ordinance of INDIAN ROCKS BEACH, INDIAN ROCKS
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 Commission, the public interest so requires, to cause such
fixtures to be relocated by CLEARWATER or its agent, without claim for reimbursement.
Further, INDIAN ROCKS BEACH 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, INDIAN ROCKS BEACH shall give CLEARWATER written notice of such
requirement and the opportunity to be heard by INDIAN ROCKS BEACH Commission as to the
costs of such relocation to CLEARWATER and possible alternative locations and routes, for
INDIAN ROCKS BEACH improvements. Ultimately, the decision as to such need for relocation
shall be INDIAN ROCKS BEACH. If INDIAN ROCKS BEACH 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 INDIAN ROCKS BEACH, INDIAN ROCKS BEACH 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
INDIAN ROCKS BEACH unless it has received express permission from INDIAN ROCKS
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 INDIAN ROCKS BEACH now or hereafter installed, then such work shall be
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done at the expense of CLEARWATER and not INDIAN ROCKS BEACH. It is understood that
in all instances the facilities of INDIAN ROCKS BEACH shall have a reasonable right-of-way
and preference over that of CLEARWATER herein.
SECTION 15. INDEMNIFICATION
To the extent permitted by law, CLEARWATER does hereby and shall at all times
indemnify, defend and hold INDIAN ROCKS 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 CLEARWATER'S negligent operation of the DISTRIBUTION SYSTEM within
INDIAN ROCKS BEACH 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 INDIAN ROCKS 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
CLEARWATER, its agents, servants, or contractors. CLEARWATER agrees to defend,
indemnify and save harmless INDIAN ROCKS BEACH 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 INDIAN ROCKS BEACH from any and all liability claims
and all suits and actions that may be brought against INDIAN ROCKS BEACH resulting from
the sole negligence of CLEARWATER, its agents, servants or contractors. CLEARWATER may
defend INDIAN ROCKS BEACH with CLEARWATER's in-house staff counsel at trial and all
appellate levels or CLEARWATER may provide for INDIAN ROCKS 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 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
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which CLEARWATER or INDIAN ROCKS 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 CLEARWATER or INDIAN ROCKS
BEACH may have under §768.28 and is not intended to and shall not be interpreted to alter the
extent of CLEARWATER's or INDIAN ROCKS BEACH waiver of sovereign immunity under
§768.28. CLEARWATER and INDIAN ROCKS 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 16. INSURANCE
INDIAN ROCKS BEACH 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
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.
The insurance coverage required herein may be provided by CLEARWATER by self -
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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 INDIAN
ROCKS BEACH 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 INDIAN ROCKS BEACH, a photocopy of
each applicable insurance policy, including all endorsements, will be provided to INDIAN
ROCKS BEACH.
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 INDIAN ROCKS BEACH 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 INDIAN ROCKS 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 18. AVAILABILITY OF RECORDS; MAPS AND REPORTS.
As soon as practicable after the effective date of this FRANCHISE, CLEARWATER
shall provide INDIAN ROCKS BEACH with a map showing all CLEARWATER's Gas lines
and facilities within INDIAN ROCKS BEACH. Upon INDIAN ROCKS BEACH 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
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all such information regarding INDIAN ROCKS BEACH that INDIAN ROCKS BEACH 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 INDIAN ROCKS BEACH, be open
for examination by INDIAN ROCKS BEACH and INDIAN ROCKS BEACH 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 INDIAN
ROCKS BEACH 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 INDIAN ROCKS BEACH City Commission
expressed by 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 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 20. CONFLICT; FILING.
Upon the effective date of the FRANCHISE, the franchise provided in INDIAN ROCKS
BEACH Ordinance No. 451, passed and adopted on May 16, 1988, as amended by Ordinance
No. 601, passed and adopted on November 11, 1995, shall be of no further force and effect.
Upon full execution hereof, CLEARWATER shall file with the Clerk a fully executed copy of
[GM15-2064-061/224184/1] 15
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.
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. 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 Commission
of INDIAN ROCKS 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 INDIAN
ROCKS 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.
(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
[GM 15-2064-061 /224184/ 1 ] 16
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 that also operates as 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 INDIAN ROCKS BEACH 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
INDIAN ROCKS BEACH.
SECTION 23. CHANGES IN PROVISIONS HEREOF
Changes in the terms and conditions hereof may be made by written amendment to this
Ordinance between INDIAN ROCKS BEACH and CLEARWATER, passed and adopted by
ordinance or resolution as applicable, by both parties.
SECTION 24. 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 25. 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 CLEARWATER shall be sent to:
[GM 15-2064-061 /224184/ 1 ] 17
Chuck Warrington
Managing Director
Clearwater Gas System
P.O. Box 4748
Clearwater, Florida 33758
Attn: Mayor
City of Clearwater
112 S. Osceola Ave.
Clearwater, Florida 33756-5103
Notices to INDIAN ROCKS BEACH shall be sent to:
Attn: City Manager
1507 Bay Palm Blvd.
Indian Rocks Beach, FL 33785
Attn: Mayor
1507 Bay Palm Blvd.
Indian Rocks Beach, FL 33785
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 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.
[GM15-2064-061/224184/1] 18
ADOPTED ON FIRST READING by the City Commission of the City of Indian Rocks
Beach, Florida, held on the 9th day of October, 2018.
PUBLISHED the 2nd day of November, 2018.
ADOPTED ON SECOND READING AND FINAL READING this 13th day of
November, 2018.
yor-Commissioner
Deanne (
'Reilly, MMC, City Clerk
Appr$'ed as • o .` and legal sufficiency:
Rand_ D. Mora, ty Attorney
[GM 15-2064-061 /224184/1 ] 19
Exhibit "A"
CLEARWATER GAS SYSTEM / PEOPLES
TERRITORIAL BOUNDRIES
P4•60 mann WI(
r
GAS
mow cam
POINT OF BEGINNING 0
THE NORTHEAST CORNER
OF SECTION 2.
TOWNSHIP 77 SOUTH,
RANCE 17 EAST
CLEARWATER
GAS SYSTEM
PINELLAS COUNTY
SERVICE AREA
PEOPLES GAS SYSTEM
PINELLAS COUNTY
SERVICE AREA
TERRITORIAL /\1
BOUNDARY IS THE
CENTERLINE OF THE
INTRACOASTAL
WATERWAY TO AN
END POINT 0 THE
SOUTHERNMOST
BOUNDARY OF THE
TOWN OF
REDINGTON BEACH
FROM THE CENTER
OF THE
INTRACOASTAL
WATERWAY TO THE
POINT OF
INTERSECT WITH
THE SNOREUNE or
THE GULF OF
MEa:ICO
A) SEE TERRITORIAL
AGREEMENT FOR
-- BE%PLANATION OF
BOUNDARY IN
^ THESE AREAS
:anuary 6. 1999
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