11-13RESOLUTION NO. 11-13
A RESOLUTION OF THE CITY OF CLEARWATER, FLORIDA,
APPROVING AND AUTHORIZING THE EXECUTION OF THE
THIRD AMENDED AND RESTATED INTERLOCAL AGREEMENT
TO BE EXECUTED AMONG THE MEMBERS OF FLORIDA GAS
UTILITY; PROVIDING CERTAIN AUTHORIZATIONS; PROVIDING
AN EFFECTIVE DATE; AND PROVIDING CERTAIN OTHER
DETAILS WITH RESPECT THERETO.
WHEREAS, the City of Clearwater, Florida, has entered into an
Interlocal Agreement dated September 1, 1989, as amended on June 1, 1992 and
restated by the Second Amended and Restated Interlocal Agreement dated July 27,
1999 (the "Interlocal Agreement"), with other member cities, authorities and public
agency ("Members") for the purpose of organizing Florida Gas Utility ("FGU") as a
public body corporate and politic, for the purchase of natural gas and the
performance of other activities; and
WHEREAS, the City has participated with FGU and the other
Members with respect to the organization of FGU under the Florida Interlocal
Corporation Act, Section 163.01, Florida Statutes, and the adoption of its policies
and procedures, pursuant to which the City and the other Members are bound; and
WHEREAS, FGU has been duly organized pursuant to the Interlocal
Agreement and has approved and provided its Members a Third Amended and
Restated Interlocal Agreement in the form attached hereto as Exhibit A as it may
be modified or amended as provided herein (the "Third Amended and Restated
Interlocal Agreement") for consideration and execution among its Members, to be its
governing document; and
WHEREAS, the Board of FGU, by resolution unanimously adopted at a
meeting duly called and held on March 25, 2011, and at which Members holding
70% of the weighted voting rights were present and voting throughout, approved
the form of the Third Amended and Restated Interlocal Agreement, subject to the
execution thereof by all Members of FGU and the filing thereof with the Clerk of the
Circuit Court of Alachua County, Florida;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY OF
CLEARWATER, FLORIDA, that:
Section 1. Authority. This Resolution is adopted pursuant to the
Constitution and laws of the State of Florida, including, particularly, Section
163.01, Florida Statutes, and Chapter 166, Florida Statutes.
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 Third Amended and Restated Interlocal Agreement.
Section S. Findings. It is hereby ascertained, determined and declared
that the City is authorized under the authority cited above to approve the form and
authorize the execution and delivery of the Third Amended and Restated Interlocal
Agreement in the manner herein provided.
Section 4. Approval of Third Amended and Restated Interlocal
Agreement. The Third Amended and Restated Interlocal Agreement, in
substantially the form attached hereto as Exhibit A, is hereby approved, subject to
such changes, insertions and omissions and filling in of blanks therein as may be
approved and made to such form of Third Amended and Restated Interlocal
Agreement by the officers of the City designated below executing the same and upon
execution by all Members (together or in counterparts), shall be filed in the public
records as required by law. The Third Amended and Restated Interlocal Agreement
shall be dated as of March 25, 2011, the date of approval thereof by the FGU Board,
and shall become effective upon the due execution by all Members of FGU and the
filing thereof with the Clerk of the Circuit Court of Alachua County, Florida.
Section 5. Authorizations Concerning Third Amended and Restated
Interlocal Agreement.
A. The Mayor or Mayor Pro Tem of the City and the City Clerk or any
Deputy City Clerk of the City shall be and are hereby authorized to execute the
Third Amended and Restated Interlocal Agreement for and on behalf of the City
pursuant to the terms hereof, in substantially the forms attached hereto as
Exhibit A with such changes, insertions and omissions and filling in of blanks
therein as the Mayor or Mayor Pro Tem may approve, such approval to be
conclusively evidenced by the execution thereof.
B. The Mayor or Mayor Pro Tem and Clerk or any Deputy Clerk of
the City, the Director of Finance of the City, and such other officers and employees
of the City as may be designated by the Mayor or Mayor Pro Tem, including the
representatives of the City on the Board of Directors or Executive Committee of
FGU, are each designated as agents of the City in connection with the issuance and
delivery of the Third Amended and Restated Interlocal Agreement and are
authorized and empowered, collectively or individually, to take all action and steps
and to execute all instruments, documents and contracts on behalf of the City 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.
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Section 6. Repeal of Inconsistent Resolutions. All resolutions or parts
of resolutions in conflict herewith are hereby repealed.
Section 7. Effective Date. This Resolution shall become effective
immediately upon its adoption.
This Resolution passed and adopted this 19th day of Ma
2011.
ATTEST:
Approved as to form:
amela K. Akin
City Attorney
#10225037_v2
APPROVED:
CITY OF CLEARWATER
Frank V. Hibbard
Mayor
Attest:
Rosemarie Call
City Clerk
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Execution Copy
March 25, 2011
This instrument prepared by
(and return to)
Richard B. Stephens, Jr.
HOLLAND & KNIGHT LLP
2115 Harden Blvd,
Lakeland, FL 33803-5918
THIRD AMENDED AND RESTATED INTERLOCAL
AGREEMENT
BY AND AMONG
FLORIDA GAS UTILITY
AND
CITY OF BLOUNTSTOWN
CITY OF CHIPLEY
CITY OF CLEARWATER DB/A CLEARWATER GAS SYSTEM
CITY OF CRESCENT CITY
CITY OF DEFUNIAK SPRINGS
FLORIDA MUNICIPAL POWER AGENCY
CITY OF FORT MEADE
FORT PIERCE UTILITIES AUTHORITY
CITY OF GAINESVILLE D/B/A GAINESVILLE REGIONAL UTILITIES
CITY OF HOMESTEAD
TOWN OF JAY
KISSIMMEE UTILITY AUTHORITY
CITY OF LAKE CITY
CITY OF LAKE WORTH
CITY OF LAKELAND
CITY OF LEESBURG
CITY OF LIVE OAK
CITY OF MARIANNA
ORLANDO UTILITIES COMMISSION
PALATKA GAS AUTHORITY
CITY OF PERRY
CITY OF STARKE
CITY OF SUNRISE
CITY OF VERO BEACH
CITY OF WILLISTON
Dated as of March 25, 2011
EXHIBIT
a
x
m
TABLE OF CONTENTS
ARTICLE I Purpose; Duration; Effective Date ............................................................ 2
Section 1. Purpose of this Agreement ................................................................... 2
Section 2. Duration ................................................................................................ 2
Section 3. Dissolution of FGU ............................................................................... 3
Section 4. Liquidation ............................................................................................ 3
Section 5. Effective Date ........................................................................................ 3
ARTICLE II Powers ....................................................................................................... 3
ARTICLE III Members .................................................................................................. 7
Section 1. Membership .......................................................................................... 7
Section 2. Duties of Members ................................................................................ 7
Section 3. Addition or Withdrawal of Members .................................................... 7
ARTICLE IV Board of Directors; Executive Committee .............................................. 8
Section 1. Board of Directors ................................................................................. 8
Section 2. Duties of the Board of Directors ........................................................... 9
Section 3. Meetings of the Board of Directors ...................................................... 9
Section 4. Quorum and Voting .............................................................................. 9
Section 5. Vacancies on the Board of Directors .................................................. 11
Section 6. Bylaws ................................................................................................. 11
Section 7. Executive Committee .......................................................................... 12
Section 8. Duties and Powers of the Executive Committee ............................... 13
Section 9. Meetings by Electronic Communications .......................................... 14
ARTICLE V Officers .................................................................................................... 14
Section 1. Number, Titles and Term of Office .................................................... 14
Section 2. Powers and Duties of the Chair of the Board .................................... 14
Section 3. Powers and Duties of the Vice Chair of the Board ............................ 15
Section 4. General Manager ................................................................................ 15
Section 5. Chief Financial Officer ....................................................................... 15
Section 6. Secretary ............................................................................................. 15
Section 7. Resignation ......................................................................................... 16
Section 8. Removal of Officers ............................................................................. 16
ARTICLE VI Special Projects ..................................................................................... 16
Section 1. Special Projects ................................................................................... 16
Section 2. Termination of Projects ...................................................................... 16
ARTICLE VII Miscellaneous ....................................................................................... 17
Section 1. Recovery of Costs ................................................................................ 17
Section 2. Accumulated Net Revenues ................................................................ 17
Section 3. Fiscal Control ...................................................................................... 17
Section 4. Filing with Clerk of Circuit Court ...................................................... 18
Section 5. Amendments ....................................................................................... 18
Section 6. Prohibited Transactions with Staff .................................................... 18
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Section 7. Seal .......................................................... ...................................... 1 R
Section 8. Effect on Prior Agreement ..................................................................18
Section 9. Execution in Counterparts .................................................................18
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THIRD AMENDED AND RESTATED INTERLOCAL AGREEMENT
THIS THIRD AMENDED AND RESTATED INTERLOCAL AGREEMENT made and entered
into as of this 25th day of March, 2011, by and among City of Blountstown, City of
Chipley, City of Clearwater D/B/A Clearwater Gas System, City of Crescent City, City of
DeFuniak Springs, Florida Municipal Power Agency, City of Fort Meade, Fort Pierce
Utilities Authority, City of Gainesville D/B/A Gainesville Regional Utilities, City of
Homestead, Town of Jay, Kissimmee Utility Authority, City of Lake City, City of Lake
Worth, City of Lakeland, City of Leesburg, City of Live Oak, City of Marianna, Orlando
Utilities Commission, Palatka Gas Authority, City of Perry, City of Starke, City of Sunrise,
City of Vero Beach, City of Williston, and which may be subsequently entered into by
assumption of the rights and responsibilities of this Third Amended and Restated
Interlocal Agreement by other cities or utility authorities, commissions or similar
entities from time to time, pursuant to Article III, Section 3 hereof (collectively,
"Members").
WITNESSETH:
WHEREAS, Florida Gas Utility was formed by Interlocal Agreement on
September 1, 1989, which was subsequently amended by the Amended Interlocal
Agreement on June 1, 1992, and which was amended and restated by Amended and
Restated Interlocal Agreement as of July 1, 1996 and on July 27, 1999 ("Interlocal
Agreement"); and
WHEREAS, the parties to the Interlocal Agreement have agreed to
modifications to reflect certain agreed upon changes thereto; and
WHEREAS, in addition and supplemental to their other powers, the
undersigned parties, pursuant to Chapter 163, Part I, Florida Statutes, as
amended, commonly known as the "Florida Interlocal Cooperation Act of 1969," are
authorized and empowered to cooperate with each other on a basis of mutual
advantage and thereby to provide services and facilities in a manner and pursuant
to forms of government organization that will accord best with geographic,
economic, population, and other factors influencing the needs and development of
local communities.
Now, THEREFORE, IN CONSIDERATION of the mutual benefits to flow to
each other, and to the citizens of the State of Florida, and in consideration of the
mutual covenants, promises and agreements herein contained, the Members hereby
agree with each other to amend and restate in its entirety the Interlocal Agreement
by this Third Amended and Restated Interlocal Agreement (herein, the
"Agreement" or the "Interlocal Agreement") as follows:
Execution Copy
March 25, 2011
ARTICLE I
Purpose; Duration; Effective Date
Section 1. Pu ose of this Agreement.
The purpose of this Agreement is to create a legal entity constituting a
public body corporate and politic under Section 163.01 of Chapter 163, Part 1,
Florida Statutes, as amended, composed of the Members, to be known as Florida
Gas Utility ("FGU").
FGU is formed to undertake the acquisition, financing, constructing,
managing, operating, delivering, servicing, utilizing, owning, brokering,
exchanging, and distributing natural gas, manufactured gas, fossil fuels or other
energy and energy sources and interests therein, present and future, of whatever
kind or nature, and to exercise all of the powers granted by this Agreement, either
within or without the State of Florida.
FGU shall be governed by a Board of Directors and Executive
Committee as provided in Article IV. FGU, as directed by its Board of Directors,
shall adopt bylaws, rules, regulations, policies and procedures to govern its actions
and procedures.
It is not the purpose of this Agreement to transfer ownership of any
existing facility from any Member or other entity to FGU.
Section 2. Duration.
This Agreement shall continue in full force and effect, until its
termination as provided herein, subject to the right to rescind this Agreement and
dissolve FGU as provided by Section 3 of this Article I; provided, however, that
termination hereof shall not occur earlier than the date all bonds, notes or other
evidences of indebtedness of FGU and the interest thereon shall have been paid in
full or adequate provision for such payment shall have been made in accordance
with the instruments governing such bonds, notes or other evidences of
indebtedness and all other contractual obligations undertaken by FGU, all
obligations and liabilities, and all liens, charges and encumbrances to which
property of FGU is subject, shall have been satisfied, released or adequately
provided for; however, any Member, by written notice to FGU and each of the other
Members, may terminate its participation in this Agreement subject to the
continuing obligation with respect to any contractual obligations undertaken by
such Member, including any obligations with respect to a gas services agreement, a
gas supply contract or a project support contract between such Member and FGU,
or any similar contract outstanding from time to time, as such contracts may be
amended or supplemented from time to time.
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March 25, 2011
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Section 3. Dissolution of FGU.
This Agreement shall continue in full force and effect, and FGU shall
continue to possess the powers herein conferred upon it, until the parties shall have
rescinded this Agreement (in accordance with this Section 3 or it shall terminate
with respect to all Members (in accordance with Section 2 of this Article I. Any
such, termination or rescission of this Agreement shall constitute a dissolution of
FGU. Rescission or termination of this Agreement by all Members may only be
accomplished by a writing or writings executed by each Member and approved by
resolution of each Member's governing body. In no event shall this Agreement or
the powers herein granted to FGU be rescinded or terminated until (a) all bonds,
notes and other evidences of indebtedness of FGU and the interest thereon shall
have been paid or adequate provision for such payment shall have made in
accordance with the instruments governing such bonds, notes and other evidences
of indebtedness and (b) all contractual obligations undertaken by FGU, all
obligations and liabilities, and all liens, charges and encumbrances to which
property of FGU is subject shall have been satisfied, released or adequately
provided for.
Section 4. Liquidation.
Upon dissolution of FGU, the Executive Committee, under the
supervision of the Board of Directors, shall liquidate the business, assets and
property of FGU, as expeditiously as possible, and all property of FGU, real,
personal, tangible and intangible shall be distributed (a) in the case of property
constituting a part of a project of FGU, to the Members participating in such project
and in the manner set forth in Section 2 of Article VI hereof, and (b) in the case of
all other property of FGU, distribution of the assets will be in accordance with a
plan of dissolution approved by the Board of Directors.
Section 5. Effective Date.
This Agreement shall take effect immediately upon its being bled as
provided in Section 163.01(11), Florida Statutes.
ARTICLE II
Powers
In order to accomplish the purposes set out above, FGU shall have the
power, upon action taken by its Board of Directors, as may be delegated to its
Executive Committee by such action, by its bylaws or by the powers granted by this
Agreement to:
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March 25, 2011
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A. Make and enter into contracts in its own name with its
Members, the United States, the State of Florida, foreign states or countries, other
public agencies and interlocal agencies and persons, both within and without the
State of Florida;
13. Acquire, construct, obtain, receive, purchase, lease, sublease,
import, hold, own, use, operate, manage, maintain, pledge, hypothecate, improve,
retain, dispose of, sell, donate, trade, transfer, deliver and convey real property and
both tangible and intangible personal property inside and outside the State of
Florida;
C. Acquire, plan, finance, construct, obtain, receive, purchase, lease
or sublease any property and acquire by lease or sublease any property and cause
the rentals paid to be certificated and sold, share cost of, hold, own, use, operate,
manage, maintain, pledge, hypothecate, improve, retain, dispose of, sell, donate,
trade, transfer, deliver and convey any joint supply project or projects and any and
all facilities, including all equipment, structures, machinery, and tangible and
intangible property, real and personal, useful or incidental to explore for, produce,
manufacture, acquire, receive, purchase, contract for, own, use, consume, possess,
insure, store, transport, transmit, dispatch, sell, convey, broker, trade, exchange,
interchange, deliver, distribute, import, export, encumber, pledge, engage in
commodity swaps and otherwise deal in natural gas, manufactured gas, fossil fuels,
and other energy and energy sources and interests therein, present and future, of
whatsoever kind or nature (collectively, "energy");
D. Acquire, obtain, maintain, hold, own, or dispose of any interest
in natural and manufactured gas, fossil fuels and other energy by exploration,
production, lease, manufacture, importation, purchase, trade, contract, franchise,
futures contract, exchange and interchange;
E. Dispose of supplies of natural and manufactured gas, fossil fuels
and other energy by use, consumption, sale, gift, trade, exportation, contract,
futures contract, exchange and interchange;
F. Explore for, produce, manufacture, acquire, receive, purchase,
contract for, own, use, consume, hold, possess, insure, store, transport, transmit,
dispatch, sell, convey, broker, trade, exchange, interchange, deliver, distribute,
import, export, encumber, pledge and otherwise deal in natural gas, manufactured
gas, fossil fuels, and other energy and interests therein, present and future;
G. Investigate the desirability of and necessity for additional
sources of natural gas, manufactured gas, fossil fuels, and other energy, and
transmission facilities therefor, and make studies, surveys and estimates as may be
necessary to determine the feasibility and cost thereof,
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March 25, 2011
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H. Acquire, purchase, lease, receive, trade, construct, manufacture,
own, hold, use, operate, manage, maintain, repair, exchange, sell, donate, pledge,
hypothecate, transfer, deliver, and convey facilities, systems, apparatus, devices,
plants, conduits, pipelines and other real, personal and intangible personal property
for the exploration, production, manufacture, importation, storage, transportation,
transmission, purchase, receipt, delivery, distribution, sale, exchange and
interchange of natural gas, manufactured gas, fossil fuels, and other energy;
I. Acquire, purchase, own, hold, use, broker, lend, borrow,
aggregate, disaggregate, pool, relinquish and transfer rights, allocations, franchises,
licenses, privileges and chosen in action entitling the holder thereof to purchase,
store, receive, transport, exchange and deliver natural gas, manufactured gas and
fossil fuels and other energy in pipelines;
J. Cooperate with other persons or other entities, public or private,
in the development of sources and supplies of natural gas, manufactured gas, fossil
fuels, and other energy, and transmission facilities therefor, and give assistance,
financial or otherwise, in any such development;
K. Apply to any person or entity, public or private, for consents,
permits, authorizations or approvals required for any project undertaken in
accordance with this Agreement, and to take all necessary actions to comply with
the conditions thereof,
L. Enter into interlocal agreements with other entities, whether or
not created by interlocal agreements themselves, if such agreements are useful in
the furtherance of this Agreement, to the extent permissible under Florida law;
M. Acquire, hold, use, pledge and dispose of any or all receivables,
income, revenues, funds and money;
N. Incur debts, liabilities or obligations which do not constitute
debts, liabilities or obligations of the Members, unless specifically agreed by such
Members, and, to the extent permissible under Florida law, grant a mortgage or
security interest in property acquired through loan proceeds, provided that without
each Member's consent, it shall be non-recourse with respect to such Members;
0. Establish, operate and manage a pooled loan project or projects
for utilization by FGU or its Members or others duly authorized by FGU;
P. Exercise all powers in connection with the authorization,
issuance and sale of bonds and bond anticipation notes as are conferred by Section
163.01(7)(d) of Chapter 163, Part I, Florida Statutes, as amended, and any other
applicable provisions of law, and by any such other applicable statute hereafter
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adopted, which may include interest rate swaps, collars, caps and other derivative
products;
Q. Invest money of FGU not required for immediate use, including,
but not limited to, proceeds from the sale of bonds, in such obligations, securities,
and other investments as authorized by the investment policies of FGU, any
applicable laws and any applicable provisions of any bond resolution or other
instruments governing the fund or funds in which the money is deposited;
R. Exercise the power of eminent domain, in the manner
authorized by law;
S. Impose fees and charges necessary to discharge its duties and
obligations hereunder, and adopt such rules and regulations, policies and
procedures and enact bylaws to implement the powers and authorities granted
hereby;
T. Procure insurance from such insurers as it deems desirable or to
self insure, or both, against risk of loss or liability in connection with its property,
operations or assets;
U. Employ, engage, discharge and compensate agents, employees
and independent contractors;
V. Sue and be sued in its own name;
W. Enforce all rules, regulations, policies and procedures adopted
under the authority of this Agreement, independently, or with the assistance of the
Members, and resort to any necessary legal process for this purpose;
X. Grant indemnification to its Directors, members of its Executive
Committee, other committees, officers, agents and employees, to the extent
permitted by law and in the manner set forth in its bylaws; and
Y. Exercise all such other powers incidental and useful to the
furtherance of the purposes of this Agreement and to the exercise of the powers
specified herein, and which the Members may exercise in their individual
capacities, and any other powers conferred presently or in the future under the laws
of Florida.
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March 25, 2011
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ARTICLE III
Members
Section 1. Membership.
Members shall be entitled to representation on the Board of Directors
and will be entitled to vote as provided herein.
Section 2. Duties of Members.
To accomplish the purposes of this Agreement, the Members
respectively and mutually agree with each other to comply with and abide by all
policies as may be established by the Board and operating procedures as established
by the Executive Committee. Membership in FGU shall not impair any Member's
right to contract with third parties outside FGU for sales and purchases of gas or
other energy, except as may otherwise be agreed by any Member.
Section 3. Addition or Withdrawal of Members.
New Members may be added to FGU as provided below, as otherwise
provided by the bylaws, or as may be provided by the Board.
1. A prospective Member must be a public agency as defined by
Section 163.01(2)(b), Florida Statutes, and qualify for membership under Section
163.01, Florida Statutes, as it may be amended;
2. A prospective Member must execute a document of assumption
of all rights and responsibilities as are set forth in this Agreement;
3. A prospective Member must execute a gas services contract with
FGU granting to FGU the appropriate powers to enable FGU to perform the
services which the Member desires to receive;
4. A prospective Member must be accepted for membership by the
Executive Committee which will be effective after fifteen (15) business days written
notice to the Board of Directors; and
5. A prospective Member must agree to pay its costs as incurred
pursuant to the schedule of rates and charges as established by the Board of
Directors, the Executive Committee or as otherwise provided by this Agreement.
Any Member may resign as a member of FGU as provided in this
Agreement, in the bylaws or as otherwise authorized by the Board, subject to such
further restrictions or to then existing contractual obligations imposed upon such
Member or as shall otherwise be agreed to by such Member and FGU.
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Upon compliance with the provisions for resignation as provided
herein, in the bylaws and pursuant to all applicable regulatory requirements, and to
the extent permitted by law or regulations, and as otherwise provided by the
contractual obligations of the Members, including gas services agreements, gas
supply contracts, project support contracts or similar contracts, or other contractual
agreements between or among some or all of the Members, FGU will transfer or
cede back to the departing Member the transportation entitlements that the
Member transferred or ceded to FGU as well as the Member's proportional share of
any new entitlements secured by FGU for all FGU Members, subject to the
provisions of any agreement between the Members and FGU. Such resignation will
not extinguish the Member's obligation to make payments to FGU for all expenses
and contractual obligations incurred by FGU for the benefit of the Member as
provided herein, and for such other obligations as shall be agreed to by such
Member and FGU.
ARTICLE IV
Board of Directors; Executive Committee
Section 1. Board of Directors.
The Board of Directors shall be composed of one Director from each of
the Members, from which the Board of Directors shall elect a Chair who shall serve
at the will of the Board of Directors. The appointment of a Director to represent a
Member (sometimes referred to as a "Director Representative") shall be determined
by the governing body of each Member. An alternate Director may also be
appointed by each Member who shall serve in the absence or inability of a Director
to act or serve at any time during that Director's term. The appointment of a
Director and an alternate Director shall be made in formal session, shall be
reflected in the minutes of the meeting of such Member and a certified copy of such
evidence of appointment shall be provided to FGU. Each Director and alternate
Director shall serve at the pleasure of the governing body of the respective
appointing Member and may be removed as Director and alternate Director at any
time by action taken with the same formality as the appointment and with the same
such notice to FGU. In case of removal of a Director before completion of the term
of such Director, unless the alternate Director shall be available to serve, a
successor shall be appointed by the Member to serve for the balance of the term. In
the event that a Director has been removed, the alternate Director shall serve until
a successor Director has been duly appointed. The membership of the Board shall
be known as the Florida Gas Utility Board of Directors, herein called the "Board" or
"Board of Directors" or an individual member may be known as a "Director." The
Executive Committee, herein "Executive Committee," shall be selected by the Board
of Directors as set forth in Section 7 of this Article IV.
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March 25, 2011
Section 2. Duties of the Board of Directors.
FGU shall be governed by the Board of Directors, subject to the powers
and authorities delegated to the Executive Committee by this Agreement, the
bylaws, or other action of the Board. The Board shall select the Chair in accordance
with the voting procedures specified below and may replace the Chair by
designating a new Chair. The Board shall establish policies and adopt bylaws
necessary to accomplish the purposes of this Agreement. The Board shall also
approve the annual budget, however the Executive Committee may approve any
amendments to the annual budget to be effective after fifteen (15) business days
written notice to each member of the Board of Directors of such proposed revision,
together with a copy thereof. Any change to this Agreement, the schedule of fees
and charges, the membership policy included in the FGU bylaws, the adoption and
amendment of the bylaws to carry out the intent and purposes of this Agreement,
and the issuance of any bonds, notes or other such debt obligations of FGU, other
than current operating indebtedness shall be approved by the Board. The
Executive Committee may carry out the issuance of such debt obligations after
initial approval by the Board.
The Board of Directors may by general resolution, delegate to the
Executive Committee, powers in addition to the powers set forth in this Agreement
and the bylaws, it being the general intent of the bylaws and this Agreement that
the Executive Committee shall be responsible for the executive duties and general
management of the business, operations and affairs of FGU. The Directors may, by
action taken at a duly called Board meeting, however, revoke the delegation of
authority for any proposed action by the Executive Committee, including addition of
new Members, approval of amendments to the annual budget and acceptance of the
annual audit.
Section 3. Meetings of the Board of Directors.
The Chair's function will be to conduct all business meetings of the
Board and preside over meetings of the Executive Committee and to perform other
activities as directed by the Board or as provided by the bylaws.
The Board shall meet at least one time per year in accordance with the
bylaws. Additional Board meetings may be called by the Chair or at the request of
one Director, and with the concurrence of three (3) or more Directors polled by the
General Manager, with evidence thereof recorded in the minutes of the meeting.
Section 4. Quorum and Voting
Unless otherwise required by law, a quorum for the purpose of transacting
business of FGU by the Board shall be a majority of the weighted voting rights of all
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Director Representatives, as determined below. The concurring vote of at least
seventy per cent (70%) of such weighted voting rights of those Directors who are
present, in person, shall be necessary to decide any question. The weighted votes to
be exercised by the Director Representative for each Member, shall be determined
as set forth below:
(1) Membership in FGU will entitle the Director Representative for each
Member to at least one (1) vote.
(2) For each respective meeting of the Board, the Director Representative
of a Member shall be entitled to an additional one to ten (1 - 10)
vote(s) based on that Member's percentage share, as of the
"Determination Time" described below, of total pipeline transportation
capacity held by FGU for its Members or otherwise made available to
FGU for the purpose of providing gas supply to Members in accordance
with the following schedule:
0-2% 1 vote
2.01-6% 2 votes
6.01-15% 3 votes
15.01-30% 4 votes
30.01-50% 6 votes
50.01-75% 8 votes
X75% 10 votes
"Determination Time" shall mean the close of business on the business
day next preceding the day on which notice of such meeting of
Directors is properly given in accordance with the Bylaws.
(3) In addition to the voting rights described in clauses (1) and (2) above, a
Director Representative shall be entitled to an additional one to ten (1-
10) vote(s) based on his or her respective Member's percentage share of
the total gas throughput (usage) of FGU's Members for the 12 full
calendar months preceding the Determination Time, as determined by
FGU staff, subject to the adjustments described below, as allocated in
accordance with the following schedule:
0-2% 1 vote
2.01-6% 2 votes
6.01-15% 3 votes
15.01-30% 4 votes
30.01-50% 6 votes
50.01-75% 8 votes
X75% 10 votes
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In determining a Member's percentage share of the total gas throughput (usage) for
such 12 preceding months for purposes of the foregoing calculations, staff shall
exclude historical gas deliveries to such Member that are not scheduled to continue
at the same relative levels during the next succeeding 12 consecutive months under
either the Member's standard Gas Services Agreement or under ongoing Special
Projects.
Notwithstanding the other provisions of this Interlocal Agreement, the Chair
or a majority of the Directors, present in person and entitled to vote at any. meeting
of the Board, whether or not a quorum is present, shall have the power to adjourn
such meeting, from time to time, without any notice other than announcement at
the meeting of the time and place of the holding of the adjourned meeting. If the
adjournment is for more than thirty (30) days, or if after the adjournment a new
record date is fixed for the adjourned meeting, a notice of the adjourned meeting
shall be given to each Director entitled to vote at such meeting. At such adjourned
meeting at which a quorum shall be present or represented any business may be
transacted which might have been transacted at the meeting as originally called.
All notices required by law shall be given.
Notwithstanding the weighted voting procedures described above, the Board
shall not approve any amendment to this Interlocal Agreement, except at the
Annual Meeting or a special meeting duly called for such purpose, in each case upon
at least twenty (20) business days prior written notice to each Member specifying in
such notice the amendment or amendments to be approved. Approval of any such
proposed amendment shall require the affirmative vote of not less than seventy
percent (70%) of all Directors based on the weighted voting procedures set forth in
this Section 4.
Section 5. Vacancies on the Board of Directors.
Any vacancy on the Board of Directors shall be filled by the Member
who appointed the Director by written notice to FGU (Attention: the Secretary) in
accordance with the provisions of Article IV, Section 1 hereof. The filling of any
vacancy on the Board of Directors shall be effective upon receipt of such notice.
Section C. Bylaws.
The Board of Directors shall adopt bylaws governing rules of order and
other subjects required for the conduct of FGU's business in a manner not
inconsistent with this Agreement.
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Section 7. Executive Committee.
The Board of Directors shall select the members of the Executive
Committee and alternate members of the Executive Committee, based on
nominations from a nominating committee selected by the Chair and on
nominations from the floor. Each member of the Executive Committee and each
alternate shall be a Director.
The terms of the Executive Committee members, and the method for
recall of members shall be as designated in the bylaws. The Board shall select,
recall and replace members of the Executive Committee in accordance with the
bylaws. The Executive Committee shall be composed of the Chair of the Board, the
Vice Chair (each of whom may be selected from any Member classification), two (2)
Directors representing municipal gas distributors (LDCs), two (2) Directors
representing municipal electric power generators, one (1) at large Director and
three (3) or more alternate Directors (each of whom may be selected from any
Member classification). Members of the Executive Committee shall serve at the will
of the Board.
Concurrently with the selection of regular Executive Committee
members, the Board shall designate three (3) or more alternate members of the
Executive Committee (each an "alternate"), each of whom shall be a Director
selected from any Member classification. Alternate members of the Executive
Committee, in the order of priority designated by the Board, shall fill any vacancy
on the Executive Committee if a member or members of the Executive Committee
shall be unavailable to serve for a particular meeting. The alternates shall only
serve upon the inability or failure of a regular member of the Executive Committee
to attend a particular meeting for any reason.
Members of the Executive Committee and such alternates shall be
subject to recall by the Board regardless of whether or not the member's or
alternate's term has expired. If an individual ceases to be a Director for any reason,
he or she shall also concurrently cease to be a member of the Executive Committee
and will be succeeded in office by the first alternate described below. If a regular
member of the Executive Committee resigns or ceases to be a Director, the first
alternate member then remaining (based on the succession priority established by
the Board) shall automatically become a regular member of the Executive
Committee for the departing member's remaining term, or until a new regular
member of the Executive Committee is elected by the Board.
The Executive Committee shall meet at least one time per quarter or
more often if necessary upon call of the Chair, or upon request of two (2) or more
members of the Executive Committee. Any such meeting may be cancelled as
provided in the bylaws. Five (5) members of the Executive Committee shall
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constitute a quorum. Each member of the Executive Committee will have one (1)
vote and the vote of a majority of those members of the Executive Committee who
are present shall be necessary to decide any question.
Section 8. Duties and Powers of the Executive Committee.
The Executive Committee shall have the authority to manage the
executive and business affairs of FGU directly or through a contract with a Member
for management services, or through a combination of direct management and
contractual services. The Executive Committee shall have all of the power and
authority granted by this Agreement and as provided by the bylaws or other action
of the Board, and not reserved exclusively to the Board. The Executive Committee
may make revisions to the annual budget for FGU which will be effective after
fifteen (15) business days written notice to each member of the Board of Directors of
such proposed revision, together with a copy thereof. The Executive Committee
shall establish all operating procedures necessary to conduct the daily business of
FGU and shall have the authority to approve all contracts on behalf of the Board
and to delegate the approval of operational contracts as necessary to facilitate the
daily business of FGU. The Executive Committee shall approve all operating
procedures used by FGU in carrying out its duties and obligations. The Executive
Committee shall have the authority to direct the Chair of the Board or the General
Manager to execute all contracts approved in accordance with this Agreement or the
bylaws and to direct FGU's staff to execute all operational contracts whether
specifically approved by the Executive Committee or approved by staff in
accordance with operating procedures established by the Executive Committee.
The Executive Committee shall appoint a General Manager for FGU
subject to approval by the Board of Directors. The General Manager may be a
direct employee of FGU, an employee of a Member providing management services
under contract to FGU, a contract employee of FGU or a contract employee of a
Member providing management services under contract to FGU. The General
Manager may select or hire agents or employees as the Executive Committee may
from time to time determine to be necessary to follow the policies of the Board, but
except for the General Manager, the Executive Committee shall have no direct
supervisory authority over any direct employee of FGU, any employee of a Member
providing management services under contract to FGU, or any contract employee of
a Member or FGU.
The business and affairs of FGU shall be managed by the General
Manager under the general direction of the Executive Committee through the Chair
in accordance with policies established by the Board of Directors, and subject to the
restrictions imposed by law and this Agreement. The General Manager shall
receive direction from the Chair on behalf of the Executive Committee but shall not
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receive direction from any single member of the Executive Committee except
through the Chair.
The Executive Committee may accept and disburse funds for FGU on
behalf of the Board which are appropriated to FGU either by any governmental
body or from whatever source.
The Executive Committee may apply for and receive grants and
donations of all kinds on behalf of FGU, and it may expend all such funds for any
lawful purpose consistent with the general purposes and policy of the Board.
Section 9. Meetings by Electronic Communications.
Meetings of the Board of Directors, except for the Annual Meeting, and
meetings of the Executive Committee may be held by telephonic conference call or
other electronic communications by means of which all persons participating in the
meeting can hear the other at the same time. Participation by such means shall
constitute presence in person at a meeting.
ARTICLE V
Officers
Section 1. Number, Titles and Term of Office.
The officers of FGU shall be a Chair of the Board, a Vice Chair of the
Board, a General Manager, a Chief Financial Officer and a Secretary, and such
other officers as the Board of Directors may from time to time elect or appoint or as
provided by the bylaws. The Chair, the Vice Chair and the Secretary shall each
hold office for a term of two (2) years or as such term may be extended by the Board
of Directors until such officer's successor shall be duly elected and shall qualify or
until such officer's death or until such officer shall resign or shall have been
removed or as shall otherwise be provided by the bylaws. The Chair and Vice Chair
shall not be entitled to serve a successive, consecutive term after serving for two (2)
consecutive terms of two (2) years each. The offices of General Manager and
Secretary may be held by the same person. Except for the Chair and the Vice
Chair, no officer need be a Director.
Section 2. Powers and Duties of the Chair of the Board.
The Chair of the Board shall preside at meetings of the Board and the
Executive Committee. In the event the Chair cannot be present at a meeting, the
Vice Chair shall perform this responsibility, or in the absence of the Vice Chair,
another Director designated by the Chair, or Vice Chair, as the case may be, shall
preside. The Chair shall have the power and authority to execute all documents on
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behalf of and bind FGU for all lawful obligations, and shall have all other powers
and authorities granted to the General Manager.
Section 3. Powers and Duties of the Vice Chair of the Board.
The Board of Directors may appoint and assign areas of responsibility
to the Vice Chair of the Board, and, in such event, and subject to the overall
direction of the Chair of the Board and the Board of Directors, the Vice Chair of the
Board shall be responsible for supervising the management of the affairs of FGU
assigned to the Vice Chair. In the absence of the Chair, or in the event of the
Chair's inability or refusal to act, the Vice Chair of the Board shall perform the
duties of the Chair, and, when so acting, shall have all the powers of and be subject
to all the restrictions upon the Chair. Further, the Vice Chair of the Board shall
have such other powers and duties as designated in accordance with the bylaws and
as from time to time may be assigned to the Vice Chair of the Board by the Board of
Directors or the Chair of the Board.
Section 4. General Manager.
The General Manager shall be the chief executive officer of FGU and,
subject to the general direction of the Executive Committee and in accordance with
its operating procedures, shall have general executive charge of the properties,
business and operations of FGU with all such powers as may be reasonably incident
to such responsibilities, shall execute all leases, contracts, bonds and other evidence
of indebtedness and other obligations in the name of FGU and shall have such other
powers and duties as designated in accordance with the bylaws or as are from time
to time assigned or delegated to the General Manager by the Executive Committee.
Section 5. Chief Financial Officer.
The Chief Financial Officer shall have the custody of all funds and
accounts of FGU and maintain complete and accurate financial records of all
transactions, prepare financial statements, have the authority to execute all leases,
contracts, bonds and other evidence of indebtedness and other obligations in the
name of FGU and perform such other duties and have such other authority and
powers as the Board may from time to time prescribe or as the General Manager
may from time to time delegate. The Chief Financial Officer shall function under
the general direction of the General Manager and in accordance with FGU policies
and procedures.
Section 6. Secretary.
The Secretary shall keep the minutes of all meetings of the Board of
Directors, the Executive Committee and all other committees of the Board of
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Directors in books provided for that purpose; shall attend to the giving and serving
of all notices in the name of FGU; shall have charge of the books and papers of
FGU as the Board of Directors may direct, all of which shall be open for inspection
by any Director during normal business hours at the principal office of FGU, upon
advance written request to the Chair; shall have such other powers and duties as
designated in the bylaws and as from time to time may be assigned to the Secretary
by the Board of Directors, the Chair of the Board, and the Vice Chair of the Board;
and shall in general perform all acts incident to the office of Secretary, subject to
the control of the Board of Directors, the Chair, or the Vice Chair.
Section 7. Resignation.
Any officer may at any time resign his office by the delivery of a
resignation in writing to FGU (Attention: the Secretary). Such resignation shall be
effective upon receipt or such later time as FGU shall approve, and acceptance
thereof shall not be necessary to make it effective unless it so states.
Section 8. Removal of Officers.
Any officer may be removed from office at any time in accordance with
the bylaws.
ARTICLE VI
Special Projects
Section 1. Special Projects.
The Board may agree to undertake a project involving investment of
capital, other than minor capital expenditures, and for the investigations of the
desirability of establishing a project or taking other action ("Study Project") 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
and the Board may permit other public entities to participate. When a project is
operational, if less than all Members, or if non-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. Special projects shall be implemented and carried out as
provided by the Executive Committee.
Section 2. Termination of Projects.
Upon the termination of any project of FGU (other than a Study
Project) and after:
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A. all bonds, notes or other evidences of indebtedness of FGU with
respect to such project, and the interest thereon, shall have been paid or adequate
provision for such payment made in accordance with the provisions of such bonds,
notes or other evidences of indebtedness, and
B. all contractual obligations undertaken by FGU with respect to
such project and all liens, charges and encumbrances to which the property
constituting a part of such project is subject shall have been satisfied, released or
adequately provided for,
then all property, real, personal, tangible and intangible of FGU constituting a part
of such project shall promptly be divided among and distributed to the parties
participating in such project in the proportion that each party's participation in
such project bears to the participation of all parties participating in such project, or
in such other manner as such parties shall agree.
ARTICLE VII
Miscellaneous
Section 1. Recovery, of Costs.
FGU shall be a not-for-profit entity, whose actual operating costs will
be reimbursed by the Members and customers in accordance with policies adopted
by the Board. In addition, each Member will be obligated to reimburse FGU for its
share of all gas or other energy supply, transportation and other costs incurred by
FGU for the primary benefit of such Member in accordance with the bylaws and
policies adopted by the Board.
Section 2. Accumulated Net Revenues.
After all expenses and obligations of FGU are provided for, any surplus
revenue over and above expenses of FGU and any reserve fund established by the
Board and funded by the budget will be proportionately returned to the Members or
other entity in accordance with the bylaws and policies adopted by the Board, or as
provided by any bond resolution or trust indenture adopted by FGU for the issuance
of bonds or other indebtedness.
Section 3. Fiscal Control.
FGU shall maintain its financial records in accordance with generally
accepted accounting principles. An annual budget shall be adopted by the Board.
All financial activities shall be audited by a certified public accountant at the
conclusion of each fiscal year. Members shall be furnished copies of the annual
audit and all other financial records they may from time to time request.
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Section 4. Filing with Clerk of Circuit Court.
A copy of this Agreement and all subsequent amendments thereto
shall be filed with the Clerk of the Circuit Court of the County where FGU
maintains its principal place of business.
Section 5. Amendments.
This Agreement may be amended when initiated by any Director by
notifying the Board and providing the text of the proposed change in writing to the
Board at least twenty (20) business days prior to a vote thereon. No proposed
amendment shall be effective unless approved by a weighted vote of seventy per
cent (70%) of the Member votes of FGU as specified in Article IV, Section 4 hereof.
Section 6. Prohibited Transactions with Staff.
Except for routine communications dealing with service personnel
pursuant to gas service or supply agreements, no Director, member of the Executive
Committee, in each case, except for the Chair, or Member shall give orders or
directives to the staff of FGU.
Section 7. Seal.
The Board of Directors may adopt a seal of FGU and shall have the
authority to change or alter such seal.
Section 8. Effect on Prior Agreement.
This Agreement amends in its entirety and supersedes and shall take
the place of the Interlocal Agreement dated September 1, 1989, the Amended
Interlocal Agreement dated June 1, 1992, the Amended and Restated Interlocal
Agreement dated as of July 1, 1996 and the Second Amended and Restated
Interlocal Agreement dates as of July 27, 1999.
Section 9. 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 Members have entered into this Agreement
and have caused it to be executed by their duly authorized officers.
Countersigned
CITY OF CLEARWATER, FLORIDA
By:
Frank V. Hibbard William B. Horne II
Mayor City Manager
Appr ved as to form: Attest:
ZIYA-
Laura Mahony Rosemarie Call
Assistant City Attorney City Clerk
#982872770
19
IN WITNESS WHEREOF, the Members have entered into this Agreement
and have caused it to be executed by their duly authorized officers.
Countersigned
Frank V. Hibbard
Mayor
Approved as to form:
vua?)??
Laura Mahony
Assistant City Attorney
#9828727_v4
CITY OF CLEARWATER, FLORIDA
By:
William B. Horne II
City Manager
Attest:
Rosemarie Call
City Clerk
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