NATURAL GAS SERVICE AGREEMENT (2)
NATURAL GAS SERVICE AGREEMENT
This Agreement is made and entered into by and between Peoples Gas System, a division
of Tampa Electric Company, a Florida corporation ("Peoples") and the City of Clearwater, a
Florida municipality, (the "City"). Peoples and the City are sometimes referred to hereinafter
individually as a "party", or collectively as the "parties".
Whereas, the City desires to sell natural gas to Peoples, and Peoples desires to purchase
natural gas from the City, in order to supply several connection points including the Largo
connection point located at the intersection ofUlmerton Road and Seminole Boulevard in Largo,
Florida (the "Largo Connection Point"), a future connection point on U. S. 19 in Pasco County,
and other connection points as may be agreed upon between the Parties; and
Whereas, Peoples desires to sell natural gas to the City, and the City desires to purchase
natural gas from Peoples, in order to supply several connection points including a transportation
connection in the vicinity of Little Road and State Road 52 in Pasco County (the "Little Road
Connection Point"), a connection point being developed along Gulf Boulevard in Pinellas
County in the vicinity of the city boundary lines between Madeira Beach and Redington Beach
(the "Redington/Madeira Connection Point"), and other connection points as may be agreed
upon between the parties;
Now, therefore, in consideration of the premises and the mutual covenants and
agreements contained herein, the parties hereto, intending to be legally bound, hereby agree as
follows:
1. The above recitals are true and correct and are incorporated herein as if restated in
their entirety.
2. Peoples agrees to purchase and the City agrees to supply Peoples natural gas
service on a Wholesale Rate of$0.08 per therm above the City's applicable
Purchased Gas Adjustment for commercial service. The City further agrees to
supply gas at a pressure not to exceed 60 p.s.i.g. Peoples agrees to pay the City's
invoices for gas delivered by the City pursuant to this Agreement within twenty
(20) days after receipt of such invoices.
3. The City agrees to purchase and Peoples agrees to supply the City natural gas
service on a Wholesale Rate of$0.08 per therm above Peoples' applicable
Purchased Gas Adjustment for commercial service. Peoples further agrees to
supply gas at a pressure not to exceed 60 p.s.i.g. The City agrees to pay Peoples'
invoices for gas delivered by Peoples pursuant to this Agreement within twenty
(20) days after receipt of such invoices.
4. At such time as additional connection points are agreed to by the parties, the
additional points shall be agreed to by the parties in writing, which, at the time of
execution by both parties, shall be incorporated into this Agreement as an
Amendnaentthereof.
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5. The parties agree to comply with all applicable Federal, State, and local laws,
regulations, and ordinances with respect to each party's obligations hereunder.
With respect to each connection point, the Parties will enter into an amendment to
this Agreement documenting the party responsible for providing any necessary
facilities, for maintaining such facilities, and for metering the gas sold by one
party to the other party hereunder. Such provisions with respect to the Largo
Connection Point and the Little Road Connection Point are attached to this
Agreement as Exhibits A and B, respectively, and similarly, amendments will be
incorporated into this Agreement for any future connection points agreed to by
the parties.
6. The term ofthis Agreement shall be one (1) year, commencing on the date upon
which this Agreement has been executed by both parties, and shall automatically
renew for one (I) year periods thereafter unless a party terminates this Agreement
as provided herein. This Agreement is terminable at will by either party, provided
that the party terminating the Agreement gives written notice to the other party
not less than one-hundred twenty (120) days prior to the date oftermination. In
addition, the (i) failure by either party to make any payment required to be made
hereunder, and such failure shall continue for five (5) days after receipt of written
notice from the other party of such failure, or (ii) failure by either party to comply
in any material respect with any material provision of this Agreement (other than
a failure specified in clause (i)), and such failure shall continue for thirty (30)
days after receipt of written notice thereof has been given to the other party, shall
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constitute an Event of Default hereunder as to the non-performing party. Upon
the occurrence and continuation of an Event of Default, the non-defaulting party
may, at its option and in addition to and cumulatively of any other rights and
remedies it may have hereunder, at law, in equity, or otherwise, terminate this
Agreement on five (5) days written notice to the defaulting party; provided,
however, in the case of an Event of Default specified in clause (ii) above, if the
defaulting party has, during the thirty-day cure period, initiated and diligently
pursued action to cure the Event of Default, and the time necessary to effect such
cure exceeds such thirty-day period, the non-defaulting party shall not terminate
this Agreement. No waiver by the non-defaulting party of full performance of
this Agreement by the defaulting party in anyone or more instances shall be
deemed a waiver of the right to require full and complete performance of this
Agreement thereafter or of the right to terminate this Agreement according to the
terms of this section.
7. Indemnification. The City shall at all times indemnify, defend and hold Peoples
harmless from or on account of any claims, losses, injuries or damages, received
or sustained by any person or persons during or on account of any work or
operations engaged in by City in connection with the services provided pursuant
to this Agreement; or by or in consequence of any negligence, excluding the sole
negligence of Peoples, in connection with same; or by or on account of the use of
any improper materials or by or on account of any act or omission of City, its
agents, servants, or contractors. City agrees to defend, indemnify and save
harmless Peoples against liability arising from or based upon any violation of any
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Federal, State, County or Municipal law, ordinance or regulation by City, its
agents, servants, employees or contractors. This indemnification provision
obligates the City to defend Peoples from any liability claims and all suits and
actions that may be brought against People's resulting from the sole negligence of
City. City may defend Peoples with City's in-house staff counsel at trial and all
appellate levels or City may provide for Peoples defense with outside counsel by
paying for all attorneys' fees, costs and trial expenses. The decision to defend
with in-house counselor with outside counsel shall be within the City's sole
discretion. City's obligation to defend Peoples for the acts or omissions of City,
its servants, employees or contractors shall be limited to the extent provided in ~
768.28, Florida Statutes. Notwithstanding anything to the contrary contained
herein, this indemnification provision shall not be construed as a waiver of any
immunity from or limitation of liability to which City is entitled pursuant to ~
768.28, Florida Statutes. Furthermore, this provision is not intended to nor shall it
be interpreted as limiting or in any way affecting any defense City may have
under ~ 768.28, Florida Statutes and is not intended to and shall not be interpreted
to alter the extent of City's waiver of sovereign immunity under ~ 768.28, Florida
Statutes. The parties to this Agreement specifically agree to be fully responsible
for their own acts of negligence and for the acts of negligence of their respective
agents 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 Agreement. Peoples shall at all times indemnify, defend and
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hold the City harmless from or on account of any claims, losses, injuries or
damages, received or sustained by any person during or on account of any work
or operations engaged in by Peoples in connection with the services provided
pursuant to this Agreement; or by or in consequence of any negligence, excluding
the sole negligence of City, in connection with same; or by or on account of the
use of any improper materials or by or on account of any act or omission of
Peoples, its agents, servants, or contractors. Peoples agrees to defend, indemnify
and save harmless City against liability arising from or based upon any violation
of Federal, State, County or Municipal law, ordinance or regulation by Peoples,
its agents, servants, employees or contractors. This indemnification provision
obligates Peoples to defend City from any and all liability claims and all suits and
actions that may be brought against City resulting from the sole negligence of
Peoples. Peoples may defend City with Peoples' in-house staff counsel at trial
and all appellate levels or Peoples may provide for City's defense with outside
counsel by paying for all attorney's fees, costs and trial expenses. The decision to
defend with in-house counselor with outside counsel shall be within Peoples the
sole discretion.
8. Notices. Any notices required or permitted to be given under this Agreement
shall be in writing and shall be deemed to have been given if delivered by hand,
sent by recognized overnight courier (such as Federal express) or mailed by
certified or registered mail, return receipt requested, in a postage prepaid
envelope, and addressed as follows:
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If to Peoples: Peoples Gas System
Attn: Vice-President, Operations
702 North Franklin Street
Tampa, FL 33602
(813) 228-4775
If to Clearwater Gas: Clearwater Gas System
Attn: Gas System Managing Director
400 North Myrtle Avenue
Clearwater, FL 33755
(727) 562-4901
with copy to: Office of City Attorney
Attn: Pamela Akin
P.O. Box 4748
Clearwater, FL 33758
(727) 562-4010
Notices personally delivered or sent by overnight courier shall be deemed given
on the date of delivery and notices mailed in accordance with the foregoing shall
be deemed given on the date of delivery, provided the return receipt is received.
9. Construction. This Agreement shall be governed by, and construed and enforced
in accordance with the laws of the State of Florida. Each party to this Agreement
has participated fully in the negotiation and preparation hereof and, accordingly,
this Agreement shall not be more strictly construed against either of the parties
hereto. In construing this Agreement, the singular shall be held to include the
plural, the plural shall be held to include the singular and the use of any gender
shall be held to include every other gender.
10. Captions. The captions of the various paragraphs of this Agreement are inserted
for the purpose of convenient reference only and shall not affect the construction
or interpretation to be given any of the provisions hereof or be deemed in any
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manner to define, limit, modify or prescribe the scope or intent of this Agreement
or any provision hereof.
II. Severability. If any term or provision of this Agreement shall be determined by
appropriate judicial authority to be illegal or otherwise invalid, such provision
shall be given its nearest legal meaning or be construed as deleted as such
authority determines, and the remainder of this Agreement shall be construed with
full force and effect.
12. Counterparts. This Agreement may be executed in any number of counterparts,
each of which, when executed and delivered, shall be an original, but all
counterparts shall together constitute one and the same instrument.
13. Litigation. In the event of any litigation between the parties hereto arising out of
this Agreement, the prevailing party shall be entitled to reasonable attorneys' and
paralegal fees and court costs, including those incurred on appeal.
14. Assignabililty. Any entity which shall merge or consolidate with either party, or
acquire by purchase substantially all of the assets of either party, shall be subject
to the obligations of its predecessor under this Agreement, and either party may
assign this Agreement to such successor-in-interest or Affiliate provided such
assignee assumes in writing the obligations of its predecessor hereunder. Except
as set forth in this paragraph, neither party shall assign this Agreement, or its
rights and obligations hereunder, without the prior written consent of the other
party, and no assignment or transfer of this Agreement shall relieve either party of
any obligations to the other party incurred prior to such assignment or transfer.
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For purposes of this Agreement, the term "Affiliate" shall mean any entity that
controls, is controlled by, or is under common control with, Peoples.
15. Entire Agreement. This Agreement constitutes the entire understanding and
agreement between the parties and may not be changed, altered or modified
except by and instrument in writing signed by the party against whom
enforcement of such change is sought. This Agreement shall be binding upon the
parties hereto and their respective successors and assigns.
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IN WITNESS WHEREOF, this Agreement is executed as of the d 7 day of
(1~d ,2003.
Countersigned~ .d4..
By. ~_____
Brian J. Aungst
Mayor-Commissioner
ARW A TER, FLORIDA
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By:
William B. Horne, II
City Manager
APProv~
Attest:
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j~ynthia E. GoudealJ . . .. .
rv City Clerk '.....'. .~-'
Laura Lipowski
Assistant City Attorney
Signed, sealed and delivered in the
presence of:
PEOPLES GAS SYSTEM, a division of
TAMP A ELECTRIC COMPANY
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By: ~i?-
Mary Jo Pennino
Vice- President, Operations
~
Attest to PEOPLES
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Exhibit A
Natural Gas Service Agreement Between
Clearwater Gas System & Peoples Gas System
Lareo Connection Point
Peoples Gas System (PGS) installed, owns, operates and is responsible for maintaining
this facility, which is depicted on the attached diagram.
The facility includes a meter assembly, which permits PGS to access gas from Clearwater
Gas System (CGS) to maintain service reliability to its customers. Valves at this meter
can also be adjusted to provide a backup feed to CGS from PGS, even though this was
not the.primary reason for the interconnect.
This facility is located on the northwest corner ofUlmerton Road and Starkey Road in
the City of Largo.
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EXHIBIT "A"
LARGO CONNECTION POINT
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Q.EARWA TER, Fl. 33755
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Exhibit B
Natural Gas Service Agreement Between
Clearwater Gas System & Peoples Gas System
Little Road Connection Point
The initial purpose of this connection point is to provide transportation gas from Peoples
Gas System (PGS) to a Clearwater Gas System (CGS) customer, Empire Distillery &
Winery located at 11807 Little Road. This customer is in the CGS service territory but is
closer to the PGS main lines. PGS will provide the gas under this agreement and CGS
will bill the customer. In the future, additional CGS customers may be served off this
connection point.
PGS will install one six-inch turbine meter to measure consumption of natural gas thru
the connection point. PGS will install this meter on their existing 2" PE (polyethylene)
pipe and maintain this meter.
CGS has installed 300 feet of 6" PE pipe located on the west side of Little Road, south
from State Road 52. CGS also installed 380 feet of2" PE service line west from 165 feet
south of Teak Road as shown on Exhibit B diagram.
EXHIBIT "B"
LITTLE ROAD CONNECTION POINT
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Noturol & Propane Gas
400 NORTH MYRTLE AVENUE
CLEAR\/ATER. FL 33755
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