00-35
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RESOLUTION NO. 00-35
A RESOLUTION OF THE CITY OF CLEARWATER , FLORIDA,
APPROVING THE FORM AND CONTENT OF THE SECOND
AMENDED AND RESTATED INTERLOCAL AGREEMENT DATED
AS OF JULY 27, 1999, AUTHORIZING THE EXECUTION OF THE
ASSUMPTION AGREEMENT AND THE GAS SERVICES
AGREEMENT AND AUTHORIZING THE DELIVERY OF SUCH
INSTRUMENTS TO FLORIDA GAS UTILITY; PROVIDING FOR
THE MAKING OF PAYMENTS PURSUANT TO SAID GAS
SERVICES AGREEMENT; APPOINTING A DIRECTOR AND AN
ALTERNATE DIRECTOR TO SERVE ON THE BOARD OF
DIRECTORS OF FLORIDA GAS UTILITY; AND MAKING CERTAIN
COVENANTS IN CONJUNCTION THEREWITH; PROVIDING
CERTAIN AUTHORIZATIONS; PROVIDING' AN EFFECTIVE DATE;
AND PROVIDING CERTAIN OTHER DETAILS WITH RESPECT
THERETO.
WHEREAS, the City of Clearwater, Florida (the "Public Body"), has
been accepted for proposal as a new member of Florida Gas Utility ("FGU') by FGU,
which will become effective upon the execution and filing of the Assumption
Agreement and execution of the Gas Services Agreement described below; and
WHEREAS, to become a member of FGU it is necessary for the Public
Body to accept the terms and conditions of the Second Amended and Restated
Interlocal Agreement (the "Interlocal Agreement") and to approve the Assumption
Agreement and Gas Services Agreement in the form attached hereto as Exhibits "A"
and "B," respectively, and authorize their execution and delivery; and
WHEREAS, the Interlocal Agreement obligates each Member to select
a Director and Alternate Director to represent such Member with respect to all
actions to be taken pursuant to the Interlocal Agreement and in accordance with
the Act; and
WHEREAS, the Public Body desires to take certain other actions with
respect to the Assumption Agreement and Gas Services Agreement.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY OF
CLEARWATER, FLORIDA, that:
Section 1. Authoritv. This Resolution is adopted pursuant to the
Constitution and laws of the State of Florida, including, particularly, Section
163.01, Florida Statutes, Chapter 9861, Laws of Florida, Acts of 1923, as amended
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and supplemented, Chapter 166, Florida Statutes, and other applicable provisions
ofla w.
Section 2. Definitions. Unless the context otherwise requires, all
terms used herein in capitalized form shall have the same meanings ascribed to
such terms in the Assumption Agreement and the Gas Services Agreement.
Section 3. Findings. It is hereby ascertained, determined and declared
that the Public Body is authorized under the authority cited above to accept the
terms and conditions of the Interlocal Agreement and to approve the Assumption
Agreement and the Gas Services Agreement, attached hereto as Exhibit "A" and
Exhibit "B," respectively, in the manner herein provided.
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Section 4. Acceptance of Interlocal Agreement and Approval of Forms
of Assumption Agreement and Gas Services Agreement. The terms and conditions
of the Interlocal Agreement are accepted. The forms of the Assumption Agreement
and the Gas Services Agreement, are hereby approved, with such changes,
insertions, omissions and filling in of blanks therein as may be approved and made
to such forms of Assumption Agreement and Gas Services Agreement by the officers
designated below executing the same in the manner consistent with the provisions
of this Resolution. Such execution and delivery of the final forms of the Assumption
Agreement and Gas Services Agreement shall . be conclusive evidence of the
approval of the Assumption Agreement and the Gas Services Agreement by the
officers executing the same and the Public Body shall be bound by the Assumption
Agreement and Gas Services Agreement as executed and delivered. Such officers
are hereby authorized to deliver the forms of such Assumption Agreement and Gas
Services Agreement, as so modified and amended, as executed, to FGU for its
consideration and execution.
Section 5. Authorizations Concerning the Assumption Agreement and
Gas Service Agreement.
A. The Olo.'j 0 r or C i +tj rYh~~.e C and the
Ct'-'-j Afto((')o('~ or any Assistant C'+j A\to((\~'1 of the Public Body shall be and
are hereby authorized to execute the Assumption Agreement and Gas Services
Agreement for and on behalf of the Public Body pursuant to the terms hereof, in
substantially the forms attached hereto as Exhibits A and B, respectively, with such
changes, insertions and omissions and filling in of blanks therein as such officers
may approve, such approval to be conclusively evidenced by the execution thereof.
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B. The Chief Financial Officer and such other officers and
employees of the Public Body as may be designated by the officers charged with the
execution of the Assumption Agreement and the Gas Services Agreement, are each
designated as agents in connection with the issuance and delivery of the
Assumption Agreement and the Gas Services Agreement and are authorized and
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empowered, collectively or individually, to take all action and steps and to execute
all instruments, documents and contracts on behalf of the Public Body that are
necessary or desirable in connection with the execution and delivery thereof, and
which are specifically authorized or are not inconsistent with the terms and
provisions of this Resolution.
Section 6. Appointment and Authorizations.
A. The Public Body hereby appoints the B';l1t"\ Lo.1jille ,
_~Q~ Sc)pp\~ t:f\<j~f\(((' , and C-k~K Wo.((;l\j~' C6S ~~;ill bi'f<.d-or 'to serve as a
Director and Alternate Director, respectively, of FGD untl successors shall
be duly appointed.
B. Said Director or Alternate Director shall be authorized to
exercise all powers and duties on behalf of the Public Body as shall be authorized
pursuant to the Interlocal. Agreement and the Act and the said
Bl"i (l,n L~;\ I~ and ~\IC.\( \N\rr:n:ro,", are hereby designated as agents of the
Public Body in connection with the taking of all actions and the execution of all
documentation on behalf of the Public Body which shall be authorized by the Second
Amended and Restated Interlocal Agreement and the Act.
Section 7. Severability. If anyone or more prOVISIons of this
Resolution should be determined by a court of competent jurisdiction to be contrary
to law, such provisions shall be deemed to be severable from the remaining
provisions hereof and shall in no way effect the validity or enforceability of such
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remaInIng prOVIsIons.
Section 8. Repeal of Inconsistent Resolutions. All resolutions or parts
of resolutions in conflict herewith are hereby repealed.
Section 9. Effective Date. This Resolution shall become effective
immediately upon its adoption.
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PASSED AND ADOPTED this 7th day of September
,2000.
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Approved as to form:
Attest:
~ C~
(.....~..
(J ne C. Hayman -.
Assistant City Attorney
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This instrument prepared by
(and return to):
C. Parkhill Mays, Jr.
HOLLAND & KNIGHT
92 Lake Wire Drive
P. O. Box 32092
Lakeland, FL 33802-2092
ASSUMPTION AGREEMENT
This Assumption Agreement (the "Agreement") is dated as of the
day of , 2000, and is by and among City of Clearwater, a
municipal corporation ("City of Clearwater"), the City of Blountstown, the City of
Chipley, the City of Fort Meade, the City of Homestead, the Town of Jay, the City of
Lake City, the City of Lake Worth, the City of Marianna, the City of St. Cloud, the
City of Starke, the City of Vero Beach, the City of Williston, the Florida Municipal
Power Agency, the Fort Pierce Utilities Authority, the Kissimmee Utility Authority
and the Orlando Utilities Commission (collectively; the "Current Members"), and
Florida Gas Utility, a separate legal entity created pursuant to Section 163.01,
Florida Statutes ("FGU") (terms not otherwise defined herein shall have the
meanings ascribed in the Second Amended and Restated Interlocal Agreement,
dated July 27, 1999, by and among the current Members (the "Interlocal
Agreement")) .
WIT N E SSE T H:
WHEREAS, the City of Clearwater wishes to become a Member of
FGU effective upon execution and filing of this Agreement; and
WHEREAS, pursuant to Section 3 of the Interlocal Agreement, a
public agency as defined by Section 163.01(2)(b), Florida Statutes, may become a
Member if it meets all of the requirements set forth in the Interlocal Agreement;
and
WHEREAS, the City of Clearwater has, concurrently herewith,
. executed a Gas Services Agreement with FGU granting to FGU the appropriate
Exhibit "A"
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powers to enable FGU to perform the services which the City of Clearwater desires
to receive; and
WHEREAS, the City of Clearwater has been accepted for membership
by the Executive Committee of FGU with appropriate action of the Board of
Directors of FGU; and
WHEREAS, this Agreement evidences the City of Clearwater's
assumption of all rights and responsibilities set forth in the Interlocal Agreement
and its agreement to pay its costs as incurred pursuant to the schedule of rates and
charges applicable to it; and
WHEREAS, the City of Clearwater has taken all necessary action to
authorize the City of Clearwater to become a Member of FGU, and has appointed a
Director and alternate Director to represent the City of Clearwater on the Board of
Directors of FGU, in a formal session of a meeting of its governing body and which
action is reflected in the minutes thereof, as required by the Interlocal Agreement.
NOW, THEREFORE, THIS AGREEMENT WITNESSETH:
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In consideration of the premises hereof, the mutual covenants of the
parties hereto and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
SECTION 1. ASSUMPTION. The City of Clearwater has been
presented with a true and correct copy of the Second Amended and Restated
Interlocal Agreement and has accepted the terms and provisions thereof, hereby
assumes all the rights and responsibilities of being a Member of FGU as set forth in
the Interlocal Agreement and agrees to be bound thereby as if it had been an
original party thereto.
SECTION 2. AGREEMENT AS TO RATES AND CHARGES. The
City of Clearwater hereby agrees to pay its costs as incurred pursuant to the
schedule of rates and charges as established by the adopted pricing policy of FGU or
as otherwise provided in or pursuant to the Interlocal Agreement or the Bylaws of
FGU.
SECTION 3. FILING INFORMATION. Attached hereto as Appendix
A is a list of the filing information with respect to each location where the Interlocal
Agreement has been filed and where this Agreement will be filed.
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SECTION 4. REPRESENTATIONS. The City of Clearwater has full
legal right, power and authority to enter into this Agreement and the Gas Services
Agreement and to carry out and to consummate the transactions contemplated by
the Interlocal Agreement and the Gas Services Agreement. This Agreement and
the Gas Services Agreement when executed and delivered by the City of Clearwater
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will constitute valid and legally binding obligations of the City of Clearwater
enforceable in accordance with the terms thereof. The authorization, execution,
delivery and performance of this Agreement and the Gas Services Agreement will
not violate any applicable judgment or order of any court and will not conflict with
or result in a material breach of or default under any constitutional provision or
law, or any administrative regulation, judgment or decree or any other agreement
or other instrument to which the City of Clearwater is a party.
SECTION 5. DIRECTOR AND ALTERNATE DIRECTOR.
b(\o.n L().I\~a\e has been appointed as Direct~r and
ChJCK. Wo..\(~C\.*t'"'\ has been appointed as an alternate
Director to serve. 0 the Board of Directors of FGU In accordance wIth the terms of
the Interlocal Agreement. The appointment of the foregoing has been made in
formal session of and constitutes the official action of the governing body of the City
of Clearwater, should be reflected in the minutes of such meeting, and a certified
copy of such evidence of appointment has been provided to FGU.
SECTION 6. EXECUTION IN COUNTERPARTS. This Agreement
may be executed in any number of counterparts and the counterparts collectively
shall constitute the agreement of the parties. ..
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IN WITNESS WHEREOF, the parties hereto have set their hands and
seals as of the date first above written.
Countersigned:
CITY OF CLEARWATER, FLORIDA
By:
Brian J. Aungst
Mayor-Commissioner
William B. Horne, II
Interim. City Manager
Approved as to form:
Attest:
tH~:!:~
Assistant City Attorney
Cynthia E. Goudeau
City Clerk
STATE OF FLORIDA
COUNTY OF PINELLAS
-The foregoing instrument was acknowledged before me this day
of , 2000, by , as
and , as , of the CITY OF
CLEARWATER, on behalf of the City of Clearwater, who are personally known to
me.
NOTARY PUBLIC:
Name:
My commission expires:
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IN WITNESS WHEREOF, the parties hereto have set their hands and
seals as of the date first above written.
FLORIDA GAS UTILITY, on behalf of
itself and its Current Members as set
forth on Appendix A
(SEAL)
ATTEST:
By:
Name: Katrina R. Vaughan
Title: Secretary
By
Name: A. K. Sharma
Title: Chair
STATE OF FLORIDA
COUNTY OF OSCEOLA
The foregoing instrument was acknowledged before me this day
of ,2000, by A. K. Sharma, as Chair of FLORIDA GAS UTILITY, on
behalf of Florida Gas Utility, who is personally known to me.
NOTARY PUBLIC:
(SEAL)
NAME:
My commission expires:
STATE OF FLORIDA
COUNTY OF ALACHUA
_The foregoing instrument was acknowledged before me this day
of , 1997, by Katrina R. Vaughan, as Secretary of FLORIDA GAS
UTILITY, on behalf of Florida Gas Utility, who is personally known to me.
NOTARY PUBLIC:
(SEAL)
NAME:
My commission expires:
LAKl #216757 v2
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FLA GAS UTILITY
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CITY OF CLEARWATER
AND
FLORIDA GAS UTILITY
GAS SERVICES AGREEMENT
Exhibit "B"
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INDEX
PAGE
I. Definitions ...., ........... .......... ,... ........... ...................... u........._........ u ...........,...................,.,... ... _ 2
II. FGU Transportation Service for Member ...............................................................................3
III. Gas Supply Service .. .......... ........................ ................,....... ..........._................ ......... ...... ..........5
IV. Related Authorizations ........... ............... .... .., ............. ..... ..,................. ........ ....................... .... 5
V. Engineering SUpport ...... ........ .............................. ....... .. '" . . , .......... .. .. .. ........ " _................. ....... 6
VI. Reimbursement to FGU for Costs ........................................................................................6
VII. Member's Obligation to Notify FGU ....................................................................................7
VIII. Notification and Obligation for Operating Conditions................................. 7
IX, Insulation from Liability for Loss.. ................................,............ ............. ........ ......................8
X. Risk of Loss; Indemnity.............. ............. ........... ........................... .......,........... ..........,......... 8
XI. Disposition of Transportation Entitlements .. ............................ ...........,....... .....................m. 8
XII. Curtailment .... .... .................. ....... ................... ... ......... ...................,. .......... .........,.................. 9
XllI. Indemnification for Avoidable Costs ,.................................... ....................................... ....... 9
XIV. Termination of Agreement. ........................ .......................... .......,......................,........ ...... ...9
'X'I. Inducement to Agreement ................................ ............ .............. ...... ................................., 1 0
XVI. Billing ............. ..,.. ....... ............,............. ........, _. ........ ................. ...............,.,. ...... ....... ....... ..10
XVII. Foree Majeure .......... ............ .......... '" ...... ..... ................... .............. ................. ....,.. ..... ....... ..11
XVIII. Notices............ .........................;........ ..... ....... ................... ..... ..................... ........................ .12
XIX. Term and Effective Date ,.................................. ..... ......... ........... .........,...............................12
:XX. FERC Approval............... .... ......... ...... ........................... ............ .............. ............ ........... .....13
XXI. Assigninent .......... .......... ........ ....n............. ......,.......................... ................h... ................. ...13
XXII. Member Representative...... .......,. h.......... .......... ......... ....... .h. _ ...... _.............. ...................... .13
XXIII. Governmental Regulations ......... .......... ....... ............................. .............. .......... ................14
XXIv. Special Projects ..,...,.. ..... ..............." .......... ......................... .................... .... ....0................14
XXV. Rate Covenant .....,................ .............. ....... ........ ......... ......... .......... ................................. .14
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This Agreement ("Agreement")is entered into this _ day of ,
2000, by and between Florida Oas Utility ("FGU"), a public body corporate and politic and joint
action agency formed under the Florida Interlocal Cooperation Act and the City of Clearwater
("Member"), a municipal corporation of the State of Florida.
WHEREAS, Florida Gas Transmission Company ("FGT') has received Federal
Energy Regulatory Commission ("FERC") approval to effect a restructuring of its services, such
that it now provides a number of service options, including transportation service, to its
customers and prospective customers; and
WHEREAS, in order to take advantage of perceived opportunities created by this
restructuring of service by FGT, FGU was established between and among several Florida
municipal entities for the purpose of achieving savings through joint services for, Or which
benefit, its members; and
following:
WHEREAS, servIces provided by FGU include, but are not limited to, the
1. The coordination and management of firm and/or interruptible transportation
entitlements.
2. The purchase of gas for its members and customers.
3.
The performance of gas flow balancing between FGU members' and customers'
receipt and delivery point(s).
4. The performance of tariff interpretation, accounting services, gas notninations,
dispatching, balancing, adjustments to gas and transportation invoices, invoice
reconciliation, invoice payttlents, billing of charges for fuel, transportation, and
other related services.
WHEREAS, FOD will, from time to time, have both interruptible contracts and
firm contracts in place with gas producers, pipelines, marketers, and others to sell interruptible or
firm gas to FGU's members and customers for one month or longer or shorter on notice from any
FGU member_or customer; and
WHEREAS. PGU has entered into Finn Transportation Service Agreements with
FOT (which presently includes FTS-I and FTS-2) which permit gas to be delivered to specified
delivery point(s) serving the municipal systems of its members; and
WHEREAS. FOT's tariff provides its firm transportation custonlers the right to
aggregate with other shippers; and
WHEREAS, FOU has signed an Interruptible Transportation Service (ITS-I)
Agreement with FGT and is able to deliver natural gas to Member's delivery point(s); and
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WHEREAS, Member desires to receive, and FGU is willing and able to provide,
the sales and agency services described herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and promises contained herein, the Parties agree as follows:
I. Definitions.
In addition to definitions incorporated herein, the following terms when used
herein shall have the meanings set forth below:
1.1 The tenn "FTS-l" shall mean Florida Gas Transmission Company's Rate
Schedule FTS-I for Firm Transportation Service as fIled with the FERC as
changed and adjusted from time to time by Florida Gas Transmission Company.
1.2 The term "FTS-2" shall mean Florida Gas Transmission Company's Rate
Schedule FTS-2 for Firm Transportation Service as f1led with the FERC, as
changed and adjusted from time to time by Florida Gas Transmission Company.
1.3 The term "PTS" shall mean Florida Gas Transmission Company's Rate Schedule
PTS for Preferred Transportation Service as filed with the FERC as changed and
adjusted from time to time by Florida Gas Transmission Company.
1.4
The term "ITS" shall mean Florida Gas Transmission Company's Rate Schedule
ITS for Interruptible Transportation Service as filed with the FERC as changed
and adjusted from time to time by Florida Gas Transmission Company.
1.5 The term "SFTS" shall mean Florida Gas Transmission Company's Rate
Schedule SFTS for Small Firm Transportation Service as f11ed with the FERC as
changed and adjusted from time to time by Florida Gas Transmission Company.
1.6 The term "FERC" shall mean the Federal Energy Regulatory Commission or any
successor regulatory agency or body, including the Congress, which has authority
to regulate the rates and services of Florida Gas Transmission Company.
1.7 The term "Gas" shall mean pipeline quality natural gas which complies with the
quality provisions set forth in the General Terms and Conditions of Florida Gas
Transmission Company's effective FERC Gas Tariff, Volume No.1.
1.8 The term "Division" shall mean a member of FGU, and the associated delivery
point(s) of that member, whose transportation entitlements have been aggregated
under one transportation contract held by FGU to which Florida Gas
Transmission Company's Tariff Section 11 applies.
1.9 The term "Designee" shall mean FGU as the contractually authorized agent of a
Member as defined in the general terms and conditions of the FGT Tariff.
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The term "FOT Tariff' shall mean the effective tariff of Florida Gas Transmission
Company on file at the FERC~ as such tariff may be changed from time to time.
II. FGD Transportation Service for Member.
A. Aggregated Transportation Contract(s).
(1) In accordance with the provisions of the FGT Tariff, Member may
aggregate all or a portion of its firm transportation entitlements with the fum
transportation entitlements of other FGU Members, which shall. for purposes of this
Agreement, be referred to as the "Aggregated Tral1sportation Contract(s)."
(2) The administration of the Aggregated Transportation Contract(s) shall be
governed solely in accordance with the policies set by the FGU Board of Directors using
procedures approved by the FOU Executive Committee.
(3) It is understood that the Aggregated Transportation Contract(s) will be
operated in a manner which will preserve to each Division. with Member being a
Division, a priority right to the use of the firm transportation entitlements which would
have been assigned to it in the absence of the Aggregated Transportation Contract(s).
Only when Member's capacity rights are not required to meet the requirements of
Member, will they be made available to other Divisions upon approval of Member in
accordance with the policies of the Board of Directors. Aggregated Transportation
Contract(s) capacity not required by any Division may be temporarily relinquished or
otherwise utilized by FGU under the terms of the FOT Tariff in accordance with the
policies established by the Board of Directors.
(4) Member shall assume full responsibility for reimbursement of actual
transportation charges, including demand charges, incurred by the Aggregated
Transportation Contract(s) for the benefit of Member. To the extent another Division or
customer ofFGU may make actual use of Member's transportation rights, a reassignment
of demand costs shall be made by FOU in accordance with the policies established by the
Board of Directors.
(5) It is further understood that Member (or other members or customers)
shall be permitted to withdraw all or part of its aggregated fIrm entitlements from the
Aggregated Transportation Contract(s) at any time, without otherwise affecting this
Agreement. provided appropriate FOT consent and FERC authorizations have been
obtained.
(6) Because Member requirements change from time to time, FGU will assist
in acquiring and/or disposing of transportation entitlements for Member. To the extent
Member and FOD agree, FOU will request an allocation of such capacity in its own
name; provided, however, that a sub-allocation of such incremental transportation
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entitlement will also be made to the requesting Member's Division, which shall be
binding in the event of later withdrawals of membership or entitlements or dissolution.
(7) All contracts involving a substantial change in the burdens or benefits of
Member entered into with FGT in the name of the Aggregated Transportation Contract(s)
for the benefit of Member shall have been approved in advance by both FGU and
Member.
B. Retained Entitlement.
Member may retain its transportation contracts with FGT or other pipeline
supplier rather than aggregate some or all of its transportation entitlements as provided above. In
this case, the relationship between Member and FGU shall be that of principal and agent and
FGU shall in all such cases serve as Designee. FGU shall administer the retained transportation
contracts in accordance with its terms as Designee for Member and shall serve in such capacity
for the purpose of the administration of such contracts and shall perform the services as provided
in Article IV hereof with respect to such transportation contracts, in accordance with instructions
received from Member.
III. Gas Supply Service.
A. FGU and Member hereby agree that FGU shall furnish gas supplies for
Member's gas requirements acquired pursuant to this Agreement, to the extent such supplies can
be transported to Member's delivery pointes) under Member's or FGU's transportation
agreements with FGT, including those transportation agreements described in Article II B hereof.
B. The quantity to be supplied by FGU shall be stated on a daily basis and
nominated monthly by Member or as otherwise agreed to in accordance with VIlA.
C. The General Manager of FGU, in accordance with policies established by
the Board of Directors, shall determine the sources from which the gas supply services under this
Agreement shall be provided including the proper mix of firm gas supplies, spot gas supplies and
long term gas supplies.
D. Upon the termination of this Agreement by Member or in the event of
excess gas sUpply, a determination shall be made by the Board of Directors as to whether an
allocable part of such firm or long term gas supply agreements shall remain in the ownership and
control of Member and the obligation of Member, or whether such agreements shall remain in
the ownership and control ofFGU and shall be paid for by FGU. Any right of Member to retain
ownership of such allocation shall be subject to the release by the gas supplier of any liability of
FGU or other members for such contract.
E. Member shall be obligated for its allocable share of any firm or long term
supply of gas. No notification from Member of intent to accept less gas shall be effective with
respect to such obligation for such allocable share of Member under any such firm or long term
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gas supply contracts. FGU shall, however, utilize its best efforts to attempt to dispose of any
excess gas supply to the extent not required by Member.
IV. Related Authorizations.
A. FGU shall be responsible, unless otherwise instructed by Member in
writing, for obtaining Member's gas supply for transportation under FTS-l, FTS-2, PTS, SFTS,
and ITS transportation types, to be transported hereunder to Member's delivery poiut(s) and for
all operational decisions and arrangements associated with the transportation of gas on or
upstream of the FGT pipeline, including but not limited to, transportation along pipelines other
than FGT, selection of receipt point(s). delivery point(s), scheduling, balancing and dispatching
of gas on such pipelines other than FGT as well as on FGT's pipeline.
B. Member and FGU anticipate that FGT and third parties will look to FGU
for all purposes connected with servicing the transportation and purchasing of gas, including
FTS-I, FTS-2, PTS, SFTS and ITS transportation types, for Member on the FGT system,
including, but not limited to, the furnishing and receipt of information concerning daily
nominations, scheduling, balancing, receipt point(s), delivery point(s), invoice payment,
accounting, third party transportation, and communications with Member, and that operational
conditions may allow limited time for communications concerning such matters. To facilitate
tItis process, and except with respect to services covered by the Aggregated Transportation
Contract(s), Member agrees to name FGU, or a representative ofFGU, as Member's Designee to
perform Member's obligations with respect to nominations, scheduling and payment under the
various FGT transportation rate schedules under which Member arranges transportation service
. for gas purchased from FGU hereWlder.
C. It is recognized that Member is not obligated by this Agreement to
purchase all of its gas requirements from FGU. Member may elect to enter into gas purchase
arrangements directly with one or more third party suppliers. In such event, FGU hereby agrees
to serve as agent for Member for purposes of the administration of such gas purchase contract(s),
and/or the arrangement of transportation service by FGT in which case Member agrees to pay a
service charge pursuant to VI (F) of this Agreement.
V. Engineering Support.
Member will provide engineering information and support as reasonably
requested by FGT or FGU in order to assure appropriate design, configuration, and installation of
facilities in accordance with generally accepted industry standards necessary to serve Member's
delivery point(s).
VI. Reimbursement to FGU for Costs.
A. FGU shall invoice Member monthly for costs incurred by FGU on behalf
of Member which shall be reimbursed by Member under this Agreement. Each invoice shall
separately identify (i) gas supply costs; (ii) gas transportation charges and related costs. (iii) FGU
service charges, and (iv) adjustments.
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B. The monthly gas supply costs shall be calculated in accordance with the
Pricing Policy adopted by the Board of Directors.
C. The monthly gas transportation charges shall be calculated in accordance
with the Pricing Policy adopted by the Board of Directors.
D. .A1J.y adjustments or corrections to invoiced gas supplies or transportation
charges will be reflected on subsequent FGU invoices to Member.
E. In the event Member requests assignment back to Member of any of its
share of Aggregated Transportation Contract(s), Member and FGU intend that Member shall
assume and relieve FGU of all obligations for the payment of any charges resulting from such
assignment. These charges shall be paid and all settlements completed, including the release of
FGU and its other members from any liability by FGT with respect to the Aggregated
Transportation Contract(s), unless other arrangements are agreed to by the Member, the General
Manager ofFGU and FGT, prior to the date such reassignment is made to Member.
F. In addition to the gas supply and transportation charges described in
Paragraphs A, B and C above, Member shall pay FGU the applicable FGU Monthly Service
Charge, as specified in FGU's Annual Operating Budget, in accordance with the policies adopted
by the Board of Directors. In addition to the FGU Service Charges, FGU will charge a one time
membership fee in an amount that is in accordance with the policies adopted by the Board of
Directors.
. VII. Member's Obligation to Notify FGU.
A. It will be Member's responsibility to notify FGU of any variations in
Member's daily gas usage rate. Member will provide FGU with its natural gas requirements in
such a manner to allow FGU to effectively secure the required gas supply and associated services
in a timely and cost effective manner for Member. The actual details of such daily and monthly
information requirements will be mutually agreed upon by the parties and may change from time
to time to meet varying conditions.
B. Member shall advise FGU of any change in any of the fuel requirements at
Member's delivery point(s) (point of sale) as soon as is reasonably possible to allow FGU to
make necessary adjustments in Member's or other FGU member or customer's gas volume
nominations to avoid imbalances and penalties.
VITI. Notification and Obligation for Operating Conditions.
FGU will promptly notify Member of all pipeline operating conditions, including
but not limited to operational flow orders and alert days for which Member may be subject to
costs or penalties as a result of noncompliance. If Member does not fully comply with such
operational requirements. Member will assume full liability for any noncompliance.
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IX. Insu1ation from Liability for Loss.
Except as otherwise specifically provided in this Agreement. neither Party to this
Agreement shall be liable for any loss, injury, or damage resulting to the other or to any other
person from the use of any service provided pursuant to this Agreement, or arising from or
caused by the interruption or curtailment of the same; provided, however, that this paragraph
shall not be deemed to relieve either Party to this Agreement of responsibility imposed by law
for loss or damage which is proximately caused by such Party's own negligence to the extent
allowed by law.
X. Risk of Loss; Indemnity.
A. Although FGU may hold title to the gas in order to transport it to
Member's delivery point(s) under this Agreement, Member shall bear the risk ofloss for all such
gas allocable to Member during such transportation by FGU on the FOT system, including but
not limited to, any economic or consequential damages to Member for failure to deliver
Member's allocable gas or otherwise. FGU will, immediately prior to any such sale or transfer of
such gas to Member for further delivery or Member's use, have good title or right to the gas so as
to make such conveyance effective and free of adverse claims and liens. Title to the gas
transported for Member with its own transportation contracts will pass to such Member upon
purchase by FGU from the supplier. Title to gas purchased for utilization by the Aggregate
Transportation Contracts, will pass upon delivery by FGU to Member at the Member's Division.'
B. Member agrees, to the extent permitted by law, to indemnify and hold
FGU harmless from any and all losses or damages sustained by FGD, including any and all suits,
actions, damages. losses, and expenses arising out of adverse claims of any persons, including
Member. to such gas or the title thereto, or to royalties) taxes, license fees, or charges thereon,
and from any and all liability to any persons, including Member, or far any property damage,
occasioned by FGU holding title to gas for benefit of Member during transportation on the FGT
system.
XI. Disposition of Transportation Entitlements.
If Member is temporarily or permanently unable to utilize all or any portion of its
share ofllie Aggregated Transportation Contract(s), the fallowing provisions shall apply:
(1) Upon request by FGU and approval by Member on each occasion, FGU
may utilize that portion of Member's unused capacity which has been approved by
Member for use by other FGU members or customers. These other FOU members or
customers shall be responsible to FGU for any demand charges and other costs directly
associated with such portions of the capacity for the period of time specified by Member
for use by those other FGD members or customers, as provided in the Pricing Policy
adopted by the Board of Directors.
(2) To the extent FGU is unable to utilize such excess Member capacity, FGU
will, as permitted by the FGT Tariff, applicable FERC regulations and agreements, assist
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and cooperate with Member to dispose of such excess transportation entitlement so as to
avoid or min;m;7e any payment obligations by Member to FGT or others.
(3) Nothing herein shall relieve Member from its obligation to reimburse FGU
for costs and expenses incurred by FGU for the released excess capacity for which FGU
is not otherwise reimbursed by third parties.
XII. Curtailment.
It is understood that, in the event of a capacity curtailment on the FOT system
which causes an interruption of fum" preferred or interruptible service, curtailment shall be
implemented in accordance with FGT's currently effective curtailment plan. In the event
interruptible service is partially intenupted, FGU shall endeavor to continue deliveries to
Member under FGU's FTS-l, FTS-2. PTS. SITS or ITS contracts, if applicable in accordance
with policies and procedures set forth by its Board of Directors.
XIII. Indemnification for Avoidable Costs.
If any act or omission of Member causes FGU to incur producer demands, or
pipeline scheduling, imbalance, or overrun penalties, Member will, to the extent permitted by
law, indemnify and reimburse FGU for all such amounts. Nothing herein shall be deemed to
foreclose FGU from employing other remedies, including cessation of deliveries, and FGU
reserves the right to do so, in order to ameliorate any such exposure.
XIV. Termination of Agreement.
This Agreement may be terminated by either Party upon one hundred eighty (180)
days written notice to the other or as otherwise approved by the Board of Directors; provided,
however, that, before such termination can take effect, provision shall have been made for the
reassignment of any capacity rights aggregated in the Aggregated Transportation Contract(s) to
FGU (or to its individual members or customers. if preferred by them) and to Member,
respectively; and for the paytnent of all outstanding obligations. or obligations that may arise
with respect to firm or long term gas supply contracts by FGU. as provided in Article III C, D
and E hereof.
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XV. Inducement to Agreement.
The obligations of Member to reimburse FGU for demand charges, transportation
charges. gas supply costs and other reasonable costs and taxes, levies or fees expended by FGU
and paid to FOT and others to secure gas under favorable terms and costs for delivery to
Member's delivery point(s) are essential to the inducement of FGU and Member to enter into
this Agreement. Unless specifically provided to the contrary in this Agreement, such obligations
shall apply and continue in all events, and irrespective of whether Member actually utilizes or is
able to utilize the capacity reserved and the finD or long term gas supply contracts secured by
FOU. pursuant to this Agreement, except as this Agreement allows these obligations to be
reduced or eliminated.
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XVI. Billing.
A. FGU will render an invoice for the service to be provided to Member and
for reimbursement of costs and charges which FOU is required to pay to effect the purposes of
this Agreement.
B. FOU will provide Member with an invoice by mail, courier or facsimile or
other electronir;:; transmission for the amounts due as provided in paragraph A above, for the prior
month as soon as the billing information is available, based on scheduled gas consumption. FGU
will provide a calendar of invoice and due dates at the beginning of each fiscal year. Payment
for all invoices submitted shall be due on or before FGU's published due date. All invoices shall
be considered past due if payment is not received by the due date. Interest may be charged on all
balances outstanding after the due date, as provided by law, at the Prime Rate of interest as
published from time to time in the Wall Street Journal and in effect on the calendar month for
which the unpaid balance shall be received by FGU, but in no event in excess of the maximUIn
lawful rate in existence from time to time. Failure to pay the full amount due by the due date
including the past due amount, interest charges and the current amount due, may result in
suspension of gas supply service by FGU until the past due amount and all charges are paid in
full. Member shall advise FGU of any dispute in any invoice on or before the due date,
provided, however, that payment in full shall be made by Member on or prior to the due date and
the parties shall attempt in good faith to resolve the dispute. The billing and payment procedures
shall be in accordance with the Billing and Payment Policy as established by the Board of
Directors and any conflict with the provisions of this Agreement and such policy shall be
governed by such policy.
XVII. Force Majeure.
A. In the event that either Party. FGU, or Member, is rendered unable, wholly
or in part, by force majeure to carty out its obligations under this Agreement or any subsequent
service agreement between the Parties contemplated herein, other than the obligation to make
payments due, it is agreed that upon such Party giving notice and full particulars of such force
majeure in writing to the other Party as soon as possible after the occurrence of the cause relied
on, then the obligations of the Party giving such notice (other than the obligation to make
payments due), so far as they are affected by such force majeure, shall be suspended during the
continuance of any inability so caused but for no longer period, and such cause shall as far as
possible be remedied with all reasonable dispatch. It is further agreed that except for the
obligation to make payments due, neither FGU nor Member shall be liable to the other for any
damage occasioned by force majeure.
B. In the event of any nonperformance caused by any of the forces described
in Subparagraph C the Party affected shall within twenty-four (24) hours promptly notify the
other Party verbally and within two (2) working days of nonperformance and provide the other
Party with written confirmation of the nature, cause, date of commencement and anticipated
extent of such nonperformance. If by reason of such force majeure FGU has a right to terminate
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any service agreement with FGT or others, FGU will afford Member a comparable right to
terminate the corresponding seIVice or agreement under this Agreement.
c. The tenn "force majeure" as employed herein shall mean acts of God,
strikes, lockouts, or other industrial disturbances, acts of the public enemy, wars, blockades,
insurrections, riots, epidemics, landslides, lightning, earthquakes, fires, storms, floods, freezes,
washouts, arrests and restraints of governments and people, civil disturbances, explosions,
breakage or accidents to machinery or lines of pipe, the necessity for making repairs or
alterations to machinery or lines of pipe (other than regularly scheduled or routine maintenance),
freezing of wells or lines of pipe, planned or unplanned outages by FGT, Member or other
parties in the transportation of the gas, partial or entire failure of source of supply, acts of civil or
military authority (including, but not limited to, courts or administrative or regulatory agencies),
and any other similar or related cause, whether or not enumerated herein, and whether caused or
occasioned by or happening on account of the act or omission of FGU or Member or any other
person or concern, not reasonably within the control of the Party claiming suspension and which
by the exercise of due diligence such Party is unable to prevent or overcome; such term. shall
likewise include;
(1) in those instances where either Party is required to obtain servitude,
rights of way grants, permits or licenses to enable such Party to fulfill its
obligations hereWlder, the inability of such Party to acquire, or the delays on the
part of such Party in acquiring, at reasonable cost and after the exercise of
reasonable diligence, such seIVitude, rights of way grants, permits or licenses; and
(2) in those instances where either Party is required to furnish materials
and supplies for the purpose of constructing or maintaining facilities or is required
to secure grants or permissions from any governmental agency to enable such
Party to fulfill its obligations hereunder, the inability of such Party to acquire, or
the delays on the part of such Party in acquiring, at reasonable cost and after the
exercise of reasonable diligence, such materials and supplies, permits and
permissions.
D. The settlement of strikes or lockouts shall be entirely within the discretion
of the Party having the difficulty, and the above requirement that any force majeure shall be
remedied with all reasonable dispatch shall not require the settlement of strikes or lockouts by
acceding to the demands of the opposing Party when such course is inadvisable in the discretion
of the Party having the difficulty.
xvm. Notices.
All notices, payments and communications with respect to this Agreement shall
be in writing and sent by mail, courier or facsimile or other electronic transmission to the
addresses stated below, or to any other such addresses as may be hereafter designated in writing.
FGU:
Florida Gas Utility
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Attn: General Manager
2815 NW 13th Street, Suite 200
Gainesville, Florida 32609
Member:
City of Clearwater
Attn: Chuck Warrington
XIX. Term and Effective Date.
This Agreement shall be effective on the date first written above and unless
earlier terminated as provided herein shall continue in full force and effect for a term which is
coterminous with that of any Service Agreement with FGT or third parties or as they may be
extended, that are entered into by FGD for the benefit of Member, so that FGD's obligation to
provide service for Member shall continue for the full term of this Agreement and the underlying
agreements with FOT and third parties. This a~eement shall supersede any prior agreement
executed between Member and FGD.
xx. FERC Approval.
The obligations of the Parties hereto shall be conditioned on any required FERC
approval for the Aggregated Transportation Contract(s) and/or transportation services
contemplated hereunder, and the availability of such transportation services to FGU and
Member.
XXI. Assigpment.
This Agreement shall bind and benefit the successors and assigns of the respective
parties hereto; provided. however, neither Party shall assign this Agreement or any of its rights
or obligations hereunder without first obtaining the written consent of the other Party. which
shall not be unreasonably withheld, and any necessary regulatory authorizations.
XXII. Member Representative.
Member shall appoint from time to time and provide to FGU written notice of the
name. mailing address~ telephone number and facsimile transmission number of one or more
employees or agents with authority to give instructions required by this Agreement and
otherwise exercise decisions by Member required under this Agreement (the ""Member
Representative").
(1) The Member Representative shall represent Member in glvmg and
receiving notices and directives regarding the routine operational decisions, which
decisions may be relied upon by FGU and shall be contractually binding upon Member.
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(2) The Member Representative or another designated Member
Representative may also, if so stated, represent Member in giving and receiving notices
and directives regarding all other decisions required or that may be exercisable under this
Agreement, which decisions may be relied upon by FGU and shall be contractually
binding upon Member.
(3) Notices and directives between the Member Representative(s) and FGU
may be transmitted orally when required. provided that such notices and directives shall
be promptly confirmed by a written notice as authorized by this Agreement.
XXIII. Governmental Regulations.
This Agreement shall be subject to all valid, applicable and effective laws, orders,
rules, regulations and directives of all duly constituted federal, state and local governmental
authorities having jwisdiction.
XXIV. Special Projects.
The Board of Directors of FGU may agree to undertake a project involving
investment of capital. other than minor capital expenditures and may elect to establish a separate
budget or budgets for such projects. All members shall be afforded an opportunity to participate
on an equitable basis in any project. When a project is operational, if less than all members are
participants, FGU may maintain a separate, subsidiary operating account on each such project
which will demonstrate the financial relationship between the project and FGU's general
operating budget.
XV. Rate Covenant.
Member shall establish, maintain and collect rates and charges for the services it
provides to its customers so as to provide sufficient revenues, together with available system
reserves, to enable Member to pay all accounts payable to FGU by Member under this
Agreement and all other lawful charges against or liens on the revenues ofMember's system. In
no event shall Member ever be required to levy ad valorem taxes on any property within its
boundaries to make any payments required under this Agreement. No obligations of Member
hereunder sh~ll constitute or create a lien, either legal or equitable. on Member's ad valorem
taxing power.
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TIllS AGREEMENT is entered into in mutual consideration of the premises stated
herein. and is effective as of the date first written above.
Attest:
Name: Katrina R. Vaughan
Title: SecretaIy
Countersigned:
By:
Brian J. Aungst
Mayor-Commissioner
Approved as to form:
Attest:
~c~
J . e C. Hayman
~ssistant City Attorney
FLORlDA GAS UTILITY
By:
Name: A.K. Sharma
Title: Chair
CITY OF CLEARWATER, FLORIDA
William B. Home. II
Interim City Manager
LAKI #216807 vi
Cynthia E. Goudeau
City Clerk
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CERTIFICATE
I, Cynthia E. Goudeau ,the City Clerk of the City of
Clearwater, Florida, a municipal corporation (the "City"), DO HEREBY CERTIFY
as follows:
(a) Resolution No. 00-35 ,duly adopted by the City Commission of
the City of Clearwater, Florida, on September 7 , 2000, authorizing the execution
of the Assumption Agreement and the Gas Services Agreement and on :file in the
City Clerk's office and the official records of the City~ has not been modified,
amended, altered or repealed in any way after it date of adoption and is now in full
force and effect.
(b) The seal appearing hereon constitutes the true and lawful seal
of the City.
c.JI-.
WITNESS my hand and official seal this ~ day of ~~~~ 2000.
Countersigned:
CITY OF CLEARWATER, FLORIDA
~f.t4.-.7I
William B. Home, II
Interim City Manager
~~~
Mayor-Commissioner
By:
Approved as to form:
Attest:
--\ '. t:h
/jihU (. - (l~
iAue C. Hayman,
Assistant City Attorney
LAK-216802vl