INSTALLATION OF A NATURAL GAS DISTRIBUTION SYSTEM
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of
AGREEMENT
made and entered into effective this ~ay
1997, by and between the CITY OF CLEARWATER, a
Fl
municipal
corporation,
hereinafter
referred
to
as
"Company", and THE GRAND RESERVE AT PARK PLACE, LTD., a Delaware
limited partnership, hereinafter referred to as "Developer".
WIT N E SSE T H
WHEREAS, Developer expects to build an apartment complex to be
named The Grand Reserve at Park Place consisting of approximately
390 apartments to be built on Lots 2 and 3, Storz Ophthalmics,
Inc. ,
Plat
Book
109,
Page
10,
Pinellas
County,
Florida
(hereinafter, the "Project"); and
WHEREAS, Developer desires to arrange for the installation of
a natural gas distribution system within the Project, and Company
has agreed to install such system pursuant to the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants set
forth herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Company
and Developer hereby agree as follows:
(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")
terminating at the meter outlet spud, necessary to provide natural
gas service to all apartments and amenities ln the Project as
built.
Company agrees that gas service will be available to each
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housing unit at the earlier of: (i) twelve [12] months from the
date hereof; or (ii) as and when each particular housing unit is
completed and ready for occupancy, subj ect to delays caused by
Developer or as a result of conditions described in Paragraph 10 of
this Agreement. The Gas Distribution System shall remain the
property of the Company at all times and Company shall have the
sole responsibility at its 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 by Developer,
any successors or assigns.
(2) In recognition of the investment made by Company in
constructing the Gas Distribution System, Developer hereby agrees:
(i) to install an energy efficient gas water heater (minimum size
of thirty [30] gallon) and an energy efficient gas heating system
ln each apartment unit; and (ii) to provide the necessary piping to
permit installation of an energy efficient pilotless gas range in
each apartment in the Project; and (iii) to install ventless gas
fire places in selected apartment units. In addition, Developer
agrees that each model apartment in the Project will be equipped
with an energy efficient pilotless gas range.
(3) Developer agrees that the costs of all gas consumed
within the model apartment units only shall be the responsibility
of Developer. All gas consumed by such appliances shall be billed
by Company pursuant to Company's applicable rate schedule and paid
for by Developer. Each apartment unit and the Project amenities
(e.g., pool, clubhouse, BBQ grills, etc.) will be separately
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metered and billed to the account's named customer. The gas meters
shall be installed at grade level at locations selected by
Developer and agreeable to Company conforming to applicable codes.
(4) Company agrees to pay to Developer, upon initiation of
gas service to an apartment unit, a "Builder Allowance 'I for each
apartment unit based on the following schedule:
APPLIANCE INSTALLED ALLOWANCE
Energy Efficient Gas Water Heater $375.00
Energy Efficient Gas Heating System 125.00
Energy Efficient Gas Range 50.00
Maximum Allowance per Apartment Unit $550.00
Unless Developer notifies Company to make payment of the
foregoing allowances to a person or persons other than Developer,
all such allowances shall be paid by Company to Developer.
(5) Developer agrees to clear grade to final elevation and
designate all non-exclusive easements and/or rights-of-way, where
portions of the Gas Distribution System are to be installed, and to
provide plats of the Project to Company or, in the alternative, at
Developer's discretion, provide a blanket easement, provided in the
latter instance, the Developer may relocate utility lines at its
expense. In either event, the use of said easement will not in any
way interfere with Developer's use of the Project as a residential
apartment complex. To the extent the Developer elects to grant a
specific easement, the Developer will pay for all survey costs
associated with the same.
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(6) In the event Developer conveys any or all of the land
upon which the Project is to be developed to other builders or
developers, this Agreement shall be binding upon such successors or
assigns. If such other builder (s) or developer (s) agree (s) to
comply with the terms of this Agreement, as to the portion of the
Project conveyed, Company shall look solely to such other
builder (s) or developer (s) for the performance of all of the
obligations imposed upon Developer under this Agreement, but
otherwise Developer shall remain liable to Company under this
Agreement for such portion of the Project.
(7) Developer, at its sole cost and expense, shall install
all interior gas piping, venting, etc. of any buildings or other
facilities constructed with the intent that natural gas be used
therein will conform to applicable codes and will be so sized as to
satisfy existing requirements for the ultimate utilization of
natural gas.
(8) Nothing contained herein shall be construed as a joint
venture, partnership or any other similar relationship between
Company and Developer.
(9) Neither Company nor Developer shall be liable to the
other for any failure to perform pursuant to the terms and
conditions of this Agreement to the extent such performance was
ultimately prevented by an event of Force Majeure. The term "Force
Majeure" shall mean acts of God, strikes, lockouts, or other
industrial disturbances, acts of the public enemy, wars, blockades,
insurrection, riots, epidemics, landslides, sinkholes, lightning,
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industrial disturbances that affect all of Company's customers,
earthquakes, fires, storms, flood, washouts, arrests and
explosions, breakage or non--foreseeable accident to machinery or
lines of pipe, and any other causes, whether of the kind herein
enumerated or otherwise, not within the control of the party whose
performance is affected and which, in each of 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 of reasonable diligence,
servitudes, rights-of-way, grants, permits, permissions, licenses,
materials or supplies which are required to enable such party to
fulfill its obligations hereunder. The party whose performance is
excused by an event of Force Majeure shall promptly notify the
other party of such occurrence and its estimated duration, shall
promptly remedy such Force Majeure if and to the extent reasonably
possible and shall resume such performance as soon as possible;
provided, however, that neither party shall be required to settle
any labor dispute against its will.
(10) This Agreement shall be binding upon, and shall inure to
the benefit of, the parties hereto, and their respective successors
and assigns, and no assignment shall relieve either party of such
party's obligations hereunder without written consent of the other
party.
(11) This Agreement shall be subject to all applicable laws,
rules, orders, permits and regulations of any federal, state or
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local governmental authority having jurisdiction over the parties,
their facilities, or the transactions contemplated.
(12) This Agreement shall be interpreted and construed in
accordance with the laws of the State of Florida. This Agreement
is subordinate and inferior to any mortgage now or hereafter placed
on the Project by the Developer or its successor in title. This
Agreement is self-subordinating without the need for any further
documentation; provided, however, upon request the Company will
execute an appropriate subordination agreement.
(13) In the event of litigation between the parties hereto
arising out of or in connection with this Agreement, then the
reasonable attorneys' fees and costs of the party prevailing in
such litigation shall be paid by the other party.
(14) Any and all notices, excluding billing, shall be sent by
either party to the 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
service (e.g., Federal Express) and shall, if not sooner received,
be deemed received three (3) business days after deposit in the
United States Mail, postage pre-paid, or one business day after
receipt by any national delivery service, as aforesaid. All
notices shall be addressed to each party at the following address,
or such other address as either party may hereafter designate to
the other party in writing:
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If to Developer:
The Grand Reserve at Park Place, Ltd.
1101 N. Lake Destiny Drive, #400
Maitland, Florida 32751
Attention: Christopher DelGuidice
If to Company:
City of Clearwater
c/o Clearwater Gas System
2551 Drew Street, Suite 104
Clearwater, Florida 34625
Attention: Louis A. Forquhar
with a COpy to:
City of Clearwater
City Attorneys Office
P.O. Box 4748
Clearwater, Florida 33758-4748
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be signed by their respective duly authorized officers
as of the date first above written.
COMPANY:
CITY OF CLEARWATER
By:
Name:
Title:
tY~e/# ~e~~h-
City Manaqer
Attest:
By:
Name:
Title:
Approved as to form and legal sufficiency.
BY:~~
Name: John Carassas
Title: Assistant City Attorney
(signatures continue on next page)
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DEVELOPER:
THE GRAND RESERVE AT PARK PLACE,
LTD.
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Name: ~~I S,n(/~ tJ€LtJu/I l(~
Title: ?~~/~~r
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