352 APARTMENT COMPLEX INSTALLATION OF NATURAL GAS DISTRIBUTION SYSTEM
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AGREEMRNT
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TIllS AGREEMENT il) made and entered into effective this 2 _ day of Jan.
199~ hy and between the CITY OF CLEARWATER, a f10rida municipal corporalinn.
hereinafter n:lelTed to as "Company", and Wellington Apartments TWC Ninety FOllr. I.ld"
hercinalier referred to as "Developer".
\VITNRSSETII:
WHERE^S~ Developer expects to build an apartment complex lo be named
Wellington consisting of 352 apartments to be built on property as defined in Exhibit "An
of the legal description attached and
WHEREAS, Developer desires to arrange tor the inslallt.ltion of <l natural gas
distrihution system within the Project. and Company has agreed to install such SystClll
pursuant to the terms and conditions hereinafter sel !cmh.
NOW, THEREFORE, in consideration of the mutual covenants set forth hcrcin. and
for other good and valuable considcration, the receipt and suf"ficiency of whidl are hereby
acknowledged. Company and Developer herehy agree as foHows;
(1) Company agrees at its sole cost and expense to install a gas distribution system.
including, without limitation. all necessary distribution lines. meters and ancillary distribution
system facilities (collectively, the "Gas Distribution System") lerminating at the meter Outlet
spud. necessary to provide natural gas service to all apartments and amenities in the Project ttS
buill. Company agrees that gas service will be available to each housing ullit at the earlier of:
(i) twelve (12) months from the dale hereof; or (ji) as and when each particlllar housing unit is
completed and ready for occupancy. subject to delays caused hy Developer or as a fcsulL of
conditions described in Paragraph 10 or lhis Agreement. The Gas Oistrihution System shill!
remain the property of the Company at all times and Company shall have the sole
responsibility al ils sole cost and expense for the maintenance of such system. Service will be
provided by the Company for as long as the Project is being operated 1))1 Dl~Vel()per. <lIlY
su<.;cessors or assIgns.
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(2) In recognition of the investment made by Company in constructing the Gas
Distribution System, Developer hereby agrees to install an energy efficient gas water heater
(minimum size of thirty (30) gallon). an enerb'Y efficient gas heating system. an energy
efficient pilotless ga... range in each apartment unit; and to provide the necessary piping to
permit installation of an energy erticient gas dryer in each apartment in the Project. In
addition. Developer agrees that each model apartment in the PTllject will be equipped with an
energy efficient gas dryer.
(1) Developer agrees that the costs of all gas consumed within the l1lodel apartment
units only shall bc the responsibility of Developer. All gas consumed by such appliu11l.:es shall
be billed by Company pursuant tl) Company's applicable rate schedule and paid for hy the
Dcveloper. Each apartmcnt unit and the Project amenities (e.g.. pool. c1Ubhl'lllse. BBQ grills.
etc.) will bc separately mctcred and billed to the account's named custom~r. The gas meters
shall be installed at grade level at locations selected by Uevelopcr and agreeable to Company
conforming to applicable codes.
(4) Company agrees to pay to Developer. upon initiation or gas service to an
apartment unit, a "Builder Allowance" for each apartment unit based on the following
schedule:
APPLIANCEINSTALLF.D
Energy Etlicient Gas Water lleatec
Energy Efficient Gas Heating System
Energy Efficient Gas Dryer
Energy Etlicient Ga~ Range
Maximum Allowance per Apartment Unit
ALl ,O\V ANCE
$J75.()()
125.00
50,00
50.00
$600.00
Unless Developer notifies Company to make payment of the l()regomg "llllwan<.:es to a
person or persons other than Developer. all sueh allowan<.:es shall he paid by Company to
Developer.
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Company acknowledges that D~veloper intends to offer gas dry,:rs to t~nunls on u
r~ntal hask Following huilduul, Developer guarantees that a minimum of 175 <lparlment
units shall he equipped with a gao;; dryer at an)r time. Developer agrees to allow Company's
reasonable inspection and verification. Should the numher ()f'installed g<JS dryers f~tll below
175. Devdoper agrees within thirty (30) days or said inspection and verification to either: 0)
install an appropriate number of gas dryers such that a minimum of 175 are installed. or (ii)
refund to Company $50.00 per apartment unit falling below the 175.
(5) Developer agrees todear grade to final elevation and designate all non-exclusive
easements and/or rightl'i-of:'way, where pOlti<.lllS of the Gas Distribution System are to be
instal1~tl, and to provide plats of the Pn~ject to Company or. in the alternative. at Developer's
discretion, provide a hlanket easement, provided in the latter instance, the Devdopcr may
relocate utility lines at its expense. In either event, the use of said (;~tSClm:llt will not in any
way interfere with Developer's llse of the Project as a residential apartment c.omplex, To the
cxtcntth~ Developer elects tll grant a specific easement, the Developer will pay I(lr all survey
costs associated with the same.
(6) In the event Developer conveys any or allortht: land upon which the Prnje<.:t is 10
h~ devdoped to other huilders or developers, this Agreement shall he binding upon slIch
succcssor$ or assign~. If such other builder (s) or developer (s) agree (s) 10 l:(lmply with the
terms of this Agreement. as to the portion or the Project conveyed, Company shalllo()k solely
to stich other builder (s) or developer (s) for the performance of all (If the obligations imposed
upon Developer under this Agreement. but otherwise Dt:veloper shall remain liahle 10
Company under this Agreement for such pOllion of the Project.
(7) Developer, at its sole costs and expense. shall install all interior gas plpmg.
venting, etc. of any buildings or other facilities constructed with the intent tl1ar natural gas he
lIsed therein will conform to applicable codcs and will he so sized as to ,satisfy existing
rcqllirl..~m(;nts l(lr the ultimate utiliz.1tion of natural gas,
(8) Nothing contained herein shall be l:onslrued a~ a joint venture. pMlnI..Tship or any
other similar relationship he tween Company and Developer.
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(9) Neither Company 1101' Developer shall he liable to the other for any luilure to
perform pursuant to the terms and conditions of this Agreement to tl1(' extent such
perf01111anCe was ultimately prevented by an event of Fc.lrce Majeure. Th~ term 'Torce
M~jeure shall mean acts of God, strikes. lockouts. or other industrial disturbam:es. acts of the
public enemy. wars, blockades, insurrection, riots, epidemics, landslides. sinkholes. lightning.
industrial disturbances that at feet all of Company's customers. eal1hq\wkes. .tires. storms.
t1ood. washouts. arrests and explosions, hreakage or non-foreseeable accid,:nt to machinery or
lines of pipe, and any other causes, whether of the kind herein enumerated or othcrwisc. not
within the control of the party whose performance is affected and which. in each or the:. above
cases, by the exercise of due diligence such party is unable to prevent or overcome: such term
shall likewise include the ability of a party to acquire, or delays on the part of such party in
acquiring at reasonable cost and by the exercise or reasonable diligence. servitudes. rights-of-
way, grants, permits, pcrmissions. licenses. materials or supplies which are requir~J to enable
such party to fullill its ohligations hereunder. The party wh()se per(<mlu.mce is ~xcllscd by an
~vcnt of Force Majeure shall promptly notify the other party or such occurrence and its
estimated duration. shall promptly remedy such Force Majeure if and to thl~ extent reasonably
possible and shaH resunle sueh pcrlormance as soon as possible; provided. however. that
neither party ~hall be required to settle any labor dispute against its will.
(10) This Agreement shall be binding upon, and shall inure to the benetit of. the
parties hereto, and their respectivc successors and assigns. and no assignment shall relieve
either palty of such party's obligations hereunder without written cons~nt uf' the othcr party.
(II) This Agrecment shall be subject to all applicable laws. rules, orders. permits and
regulations of any federal. state or loc.lI governmental authority having jurisdiction over the
parties. their facilities, or the transactions contemplated.
(12) This Agreement shall be interpreted and construed in accordance 'ijith the laws or
the State of Horida, This Agrcl:ment is subordinate and infcrior to any mortgage no'.v or
hercaI'Ler placed on the Project by the Devdopl:r or its successor in title, This Agreement is
sel r-subordinating without the need for any rurth~r documentation: provided. !lowCVl:r. upon
rt=quest the Company will execute an appropriate subordinatiun agreement
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(13) In the event of litigation between the parties hereto ari:\ing oul of' or in connection
with this Agreement, then the rea"nmlhle attorneys' fees and costs of the party prevailing in
stich litigation shall be paid by the other party.
(14) Any and all notices. excluding billing, shall be sent by either party to th~ other
pursuant to this Agreement shall be sent by either certified or registered mail, postage prepaid,
return receipt requested, or by receipted overnight national delivery ~crvice (e.g., Federal'
Express) and shall, if not sooner received. be deemed received three (J) business days after
deposit in the United States Mail. postage pre-paid, or one husiness day alter receipt by any
national delivery service, as aforesaid. All notices shall he addressed t(". .each party at the
following address. or such other address as either party may hereafter dc~;ignate to the other
party in writing:
J r to Oeveloper:
TWC NinetY-Four. Ltd.
6200 Courtney Campbell Causeway, Suite 600
Tampa. FI. 3J607
Attention: Terry Foote
If to Company:
City of Clearwater
clo Clearwater Gas System
2551 Drew Street. Suite #304
Clearwater. Fl. )4625
Attention: Louis A. Farquhar
with a copy to:
City of Clearwater
City Attorney's OI1h:e
P.O. Box 4748
Clearwater. FT. 33758-4748
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IN WITNESS WHEREOF. the parties hereto have caused this ^grccm~nL to he signed
by their repre~entative duly authorized officers as of the date firsL ahove written,
Company:
By:
Name: Charl~::; S. W rington
Title: Managing Director & Executive
OmceT. C1~al"Water Gas System
Approved as to /C)m1 and legal sufficiency.
BY:~
Name: John Carassas
Title: Assistant City Attomey
Witnesses:
it?lnW(L~.~
Name: ~rne..., . ()....,
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Name: ~ '.'_ L Clb L. _
By: TWC Ninety-Four, Ltd.
By: TWC Ninety-Four Partners, Ltd., its General Partner
By: TWC Ninety-FoUl. Inc., its General Partner
By: O~k.c=+ ~lS4
Name: ~(lL F KDe.hld
Title: SeniOr V \ce. P~t"
S :\li\rlll~\wcll~I(>Il. do~
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PINELLAS COUNTY FLA.
OFF.REC.BK 9594 PG 558
EXHIBIT "A"
LEGAL DESCRIPTION
The Southwest 1/4 of the Southeast 1/4 of Section 8, Township 29 South, Range 16 East..
rinellas County, Florida, LESS the Westerly 487.74 feet.
/\NO
The North 1/2 of the Southeast 1/4 of the Southeast 1/4 of Section 8, Township 29
South, Range 16 East, Pinellas County, Florida.
/\NO
The Southwest 1/4 of the Southeast 1/4 of the Southeast 1/4 of Section 8; Township 29
South, Range 16 East, Pinella. County, Florida, LESS the following descrIbed portion:
From the Southeast corner of the Southwest 1/4 of the Southeast 1/4 of the Southeast
1/4 of said Section 8, as a Point of Beginning, run North 89041'09- West, 45.85 feet:
thence north 0052'06- East, 668.50 feet: thence South 89038'33- East, 42.03 feet:
thence South 0032'24- West, 668.45 Ceet to the Point of BegInning.
^LSO LESS 1\NO EXCEPT from the above described tracts that portion conveyed to Pinel1as
County by instrument recorded in Official Records Book 5573, page '342, of ,the Public
Records of Pinellas County, Florida.
1\LSO LESS /\NO EXCEPT from the above described tracts that portion conveyed to City of
Clearwater, Florida by instrument recorded in Official Records Book 8217, page 233. of
the Public Records of pinella. County, Florida, described as followsl
1\ tract of land lying within Section 8, Township 29 South., Range ,16 East, PInel1as
County. Florida and being more particularly described as follows.
Commence at the South 1/4 corner of said Section 8: thence along the South line of the
Southeast 1/4 of said Section 8, South 89041'09- East, for 487.83 feet: thence leaving
said line, North 01025'54- East, for 1289.21 feet to the Point of Beginning; thence
continue, North 01025'5.- East, for 50.01 feet to the North line of the South 1/2 of
the Southeast 1/4 of said Section I, said Une also being the South line of BRIG1\DOON
OF CLE^RWATER. as recorded in Plat Book 91, pages 35 through 37, inclusive, of the
Public Records of Pineltas County, Florida: thence along saId line and its Easterly
extension thereof, South 89036'06- East, for 2233.68 feet to the West right of way
line of B1\YVIEW AVENUE CCR61), as recorded in Official Records Book 5573, page 342. of
the Public Records of Pinella. County, Florida, thence along said Une, being 50 feet
West of and parallel to the Ea8t line of the Southea8t 1/4 of 8aid Section 8. South
00012'59- W~st, for 667.84 feet, thence leaving said line, North 89038'380 West, for
688.22 feet, thence South 00052'060 West. for 618.37 feet to the Northerly right of
way line of DREW STREET a8 recorded in Official Records Book 5573, page Jt2, of the
Public Records of Plnella. County, Florida, thence along said line, being 50 feet.
Nnr~h nf An'" ..,......11.1 "n ..h.- !:%n....h 1 tn.- n' ..h. !:%n....h..".~ 11. nf ."Id !;~~~lnn IL Nnrlt.h
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P ELLAS COUNTY FLA.
OFF.RE1.SK 9594 PG 559
16 East, rlnellas County, Florida, run thence S 89041'13- E, 487.83 feet along the
South boundary of the Southeast 1/4 of said Section 8, thence N 01-25'54- E, 50.01
feet to the North right-of-way line of Drew Street for a Point of Beginning, thence
continue N 01025'54- E, 1239.21 feet along the East boundary of the West 487.74 feet
of the Southwest 1/4 of the Southeast 1/4 of said Section 8 to a point on the boundary
of that certain parcel conveyed to the City of Clearwater by deed recorded in Official
Records Book 8217, page 233, pinellas county Records (said point lying S 01025'54- N,
50.01 feet from the North line of the South 1/2 of the Southeast 1/4 of said Section
9); thence along the Southerly and Westerly boundaries of said City of Clearwater
property the following three (3) courses, 1) S 89036'06- H, 1047.80 feet, 2) S
24010'54- w, 524.90 feet, 3) S 00052'0'- W, 757.44 feet to the North right-of-way line
of Drew Street, thence N 89041'13- W, 852.25 feet along said Northerly right-of-way
line to the Point of Beginning.
END OF LECAL DESCRIPTION