12/02/2004
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City Council Agenda
Date: 12/02/2004 6: 00 PM
Location: Council Chambers - City Hall
Welcome. We are glad to have you join us. If you wish to speak, please wait to be recognized, then
state your name and address. Persons speaking before the City Council shall be limited to three (3)
minutes unless otherwise noted under Public Hearings. For other than Citizens to be heard regarding
items not on the Agenda, a spokesperson for a group may speak for three (3) minutes plus an
additional minute for each person in the audience that waives their right to speak, up to a maximum
of ten (10)minutes. Prior to the item being presented, please obtain the needed form to designate
a spokesperson from the City Clerk (righthand side of dais). Up to thirty minutes of public comment
will be allowed for an agenda item. No person shall speak more than once on the same subject
unless granted permission by the City Council. The City of Clearwater strongly supports and fully
complies with the Americans with Disabilities Act (ADA). Please advise us at least 48 hours prior
to the meeting if you require special accommodations at 727-562-4090. Assisted Listening
Devices are available. Kindly refrain from using beepers, cellular telephones and other distracting
devices during the meeting.
1 Call to Order
2 Invocation
3 Pledge of Allegiance
4 Introductions and Awards:
5 Presentations:
5.1 Diversity Council Awards for 2004 Clearwater Diversity Poster Contest
5.2 Certificates to Citizen Academy Graduates
5.3 We Care Fund
6 Approval of Minutes
6.1 City Council - November 18, 2004
7 Citizens to be Heard re Items Not on the Agenda
Public Hearings - Not before 6:00 PM
8 Administrative public hearings
- Presentation of issues by City Staff
- Statement of case by applicant or representative (5 min.).
- Council Questions
- Comments in support or opposition (3 min. per speaker or 10 min. maximum as
spokesperson for others that have waived their time).
- Council Questions
- Final rebuttal by applicant or representative (5 min.)
- Council disposition
8.1 Continue until the City Council meeting of January 20, 2005 the applicant's request to
vacate the north one-half of Dempsey Street (A.KA 721 Lakeview Road, VAC
2004-16) .
8.2 Approve an amendment to the development agreement between the Beachwalk Resort
LLC (fka Clearwater Seashell Resort L.C.) and the City of Clearwater, Adopt Resolution
No. 04-35 and approve restructuring of the funding in Capital Improvement Project
315-92267 (Coronado/S. Gulfview Streetscape) by replacing the $2 million General
Fund Loan with a $2 million loan from the Central Insurance Fund.
9 Quasi-judicial public hearings
- None
10 Second Readings - public hearing
10.1 Adopt Ordinance No. 7344-04 on second reading, annexing certain real property
whose Post Office address is 1705 Thomas Drive in to the corporate limits of the city,
and redefining the boundary lines of the city to include said addition.
10.2 Adopt Ordinance No. 7345-04 on second reading, amending the future land use plan
of the City to designate the land use for certain real property whose Post Office
address is 1705 Thomas Drive, upon annexation into the City of Clearwater, as
Residential Low.
10.3 ADOPT Ordinance No. 7346-04 on second reading, amending the zoning atlas of the
City by zoning certain real property whose Post Office address is 1705 Thomas Drive,
upon annexation into the City of Clearwater, as Low Medium Density Residential
(LMDR).
10.4 ADOPT Ordinance No. 7366-04 on second reading, providing for the issuance of gas
system subordinate revenue obligation, as subordinate obligations of the City pursuant
to the City's Ordinance No. 5118-91, to acquire or purchase, directly or indirectly, gas
supply and/or gas production facilities or interest therein; pledging the net revenues of
the system to secure payment of the principal and interest on the subordinate
obligations, providing for the rights of the subordinate holders of such obligations; and
providing for payment thereof.
10.5 Adopt Ordinance No. 7350-04 on second reading, amending Ordinance 6779-01,
which vacated the 60-foot right of way of Third Street (AKA Third Ave.), bounded on
the east by the Westerly right of way line of Coronado Dr. and bounded on the west by
the easterly right of way line of S. Gulfview Blvd. subject to special conditions.
10.6 Adopt Ordinance No. 7351-04 on second reading, amending Ordinance No. 6780-01,
which vacated the east 35 feet of the 70-foot right of way of Gulfview Blvd., bounded
on the north by the westerly extension of a line parallel to and 20 feet north of the
northerly lot line of Lots 57 and 104 of Lloyd-White Skinner subdivision, and bounded
on the south by the westerly extension of the south lot line of Lot 59,
L1oyd-White-Skinner subdivision, subject to special conditions.
City Manager Reports
11 Consent Agenda
11.1 Declare the list of vehicles and equipment surplus to the needs of the City and
authorize disposal through sale to the highest bidder at the Tampa Machinery Auction,
Tampa, Florida.
11.2 Approve First Amendment to Agreement and Gas Supply and Transportation
Agreement with Peoples Gas System; approve the filing of the Joint Petition for the
First Amendment to Agreement with the Florida Public Service Commission; approve
the Master Marketing Agreement with TECO Partners, Inc.; approve the Developer
Agreement for Natural Gas Distribution Service with Connerton, L.LC.; authorize the
appropriate officials to execute same and authorize the Gas System Managing Director
to approve future Developer Agreements.
11.3 Approve an agreement between THE FLORIDA COMMISSION ON COMMUNITY
SERVICE commonly referred to as VOLUNTEER FLORIDA and the CITY OF
CLEARWATER, FLORIDA for cash match funding of $52,163 for the period January 1,
2005 through December 31,2005 for AmeriCorps Clearwater, and approve 12.4 FTE
positions, and that the appropriate officials be authorized to execute same.
11.4 Approve the Clearwater Gas System Gas Supply Hedging Policy as part of the City
Commission Policies (Finance and Budget),
11.5 Approve the Pinellas County Combined Voluntary Cooperation And Operational
Assistance Mutual Aid Agreement For Law Enforcement Services, and that the
appropriate officials be authorized to execute same.
11.6 Approve an Interlocal Agreement with Pinellas County relating to intergovernmental
cooperation for effective post-disaster debris management, debris site monitoring; ratify
and confirm piggybacking the county contract with Phillips and Jordan Inc.(P&J), of
Robbinsville, NC, effective 9/18/04, for debris removal, reduction, and disposal; ratify
and confirm an increase in the P&J contract for additional storm services for $337,000
or a not to exceed total of $400,000; authorize the appropriation of an additional
$600,000 from the Central Insurance Fund retained earnings to project 0181-99927 as
funding for continued storm related damage, repair and city-wide debris clean-up; and
that the appropriate officials be authorized to execute same.
11.7 Award a one year contract to Biological Research Associates, of Tampa for Nuisance &
Exotic Control & Maintenance on City Lakes, Ponds, Channels and Immediate
Adjacent Transitional Areas in the amount of $93,940.00, and authorize the
appropriate officials to execute same.
11.8 Approve supplemental work order #2, for King Engineering Associates, Inc., to perform
additional Engineering Design Services for the "Pumping Station #15 & #25 -
Refurbishment" project in the amount of $10,485.00 for a new work order total of
$74,063.00, and authorize the appropriate officials to execute same.
11.9 Approve the amendment of the Capital Improvement Program (CIP) to restructure
current Stormwater Utility funding by reducing project budgets by $3,049,990 of FY06
revenue bond and $75,000 of stormwater operating revenues, for a total budget
decrease of $3,124,990, and increasing project budgets by $863,000 of grant revenue
from the Southwest Florida Water Management District (SWFWMD)and $16,000 of
lease purchase revenue for a total budget increase of $879,000, resulting in a net
budget decrease of $2,245,990, and that the appropriate officials be authorized to
execute same.
11.10 Approve Change Order NO.1 to Trimax Residuals of Edmonton, Alberta, for the
Biosolids Treatment Implementation Digester Cleaning Contract
(03-0022-UT)increasing the contract amount by $518,731.91, for a new contract total
of $998,508.55 ,and approve a time extension of 90 days for the completion of this
work and authorize the approprpiate officials to execute same.
11.11 Appoint Randy Deshazo to the Brownfields Advisory Board as the federal or state
agency or local government involved with the Brownfields remediation process, with a
term expiring on December 31,2008.
Purchasing
11.12 M/A-COM Private Radio Systems - 30 D28MPX Mobile Provoice Orion 806-870MHZ,
35W radios, accessories and installation kits and D2CP5S Control Unit Systems with
accessories at a cost of $118,237.50 and authorize lease purchase funding.
11.13 Southern Sewer Equipment - 2005 Sterling L7501 truck chassis with Vac-Con sewer
cleaner body at a cost of $190,114.50 and authorize lease purchase financing.
11.14 Petroleum Traders Corp. - Vehicle fuel, unleaded gasoline and diesel, during the period
December 17,2004 through December 16, 2005 at a cost not to exceed $1,400,000.
11.15 Terra Excavating Inc. - Increase the City Manager's award from $98,000 to $140,000
for emergency pick up and removal of storm debris.
12 Other items on City Manager Reports
12.1 Approve amendment to Chapter 33, Section 33.067 of the Code of Ordinances
amending defined areas for no internal combustion motors on Sand Key and pass on
first reading Ordinance No. 7352-04.
12.2 Adopt Resolution #04-34 approving PGP Gas Supply Agreement NO.1 with Florida
Gas Utility and necessary documents to accomplish same and authorize the
appropriate officials to execute same.
12.3 Approve the Parsons Water & Infrastructure, Inc. Work Order for Construction
Engineering & Inspection services for the Digester Refurbishment construction phase
of the Biosolids Treatment Implementation project in the amount of $477,552, and that
the appropriate officials be authorized to execute same.
12.4 Adopt Resolution 04-37 establishing the intent to reimburse certain Stormwater project
costs incurred with proceeds of future tax-exempt financing.
12.5 Pass Ordinance No. 7321-04 on first reading increasing domestic, lawn water, and
wastewater collection utility rates by 7% effective October 1, 2005, with subsequent 6%
increases to be effective October 1, 2006, October 1, 2007 and October 1, 2008 and
increasing reclaimed water rates by 29.44% effective October 1, 2005, then metering
reclaimed water and implementing the proposed reclaimed water rates that are
projected to result in a 29.44% increase to the average reclaimed water customer
effective October 1, 2006 followed by a 6% increase to those reclaimed water rates
effective October 1,2007, and October 1,2008,
12.6 IAFF Union negotiations update.
13 City Attorney Reports
14 City Manager Verbal Reports
15 Council Discussion Items
15.1 Clearwater High School Track Surface Improvements - Hamilton
16 Other Council Action
17 Adjourn
CITY OF CLEARWATER
Interdepartmental Correspondence
TO: Mayor and Councilmembers
FROM: Cyndie Goudeau, City Cle~
SUBJECT: Follow up from November 29, 2004 Work Session
COPIES: William B. Horne, City Manager
DATE: November 30,2004
The following information is provided:
Item #8.2 - Amendment to development agreement between Beachwalk Resort LLC
(fka Clearwater Seashell Resort L.C.); adopt Resolution 04-35 - Comparable Parking Rates
provided by Taube and Meter Rate Samples Provided by Staff are placed with the item.
Item #11.7 - Contract with Biological Research Associates for Nuisance & Exotic
Control on City Lakes, Ponds, etc. - a map showing the locations which are subject to this
contract will be provided to each Councilmember next week.
Item #12.3 - Parsons Water & Infrastructure, Inc. Work Order for Construction
Engineering & Inspection services for Digester Refurbishment construction phase of
Biosolids Treatment Implementation project - Copy of Work Order is provided.
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City Council
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Tracking Number: 1,013
Actual Date: 12/02/2004
Subject / Recommendation:
Continue until the City Council meeting of January 20, 2005 the applicant's request to vacate
the north one-half of Dempsey Street (A.K.A. 721 Lakeview Road, VAC 2004-16).
Summary:
This vacation was originally scheduled for the 10/21 Council meeting, however staff requested it
be continued to the 12/2 meeting in order to allow for the project to go through the
Development Review Committee (ORe) process first.
DRC review was held on 11-12-04 which resulted in project requirements which may alter the
vacation request.
Continuance to 1-20-05 will give the property owner time to modify the request and allow for
staff review.
Originating: Engineering
Section Administrative public hearings
Category: Other
Public Hearing: No
Financial Information:
Type: Other
Review Approval
Michael Ouillen
11-22-2004 13:51:53
Bill Horne
11-22-2004 23: 16:03
Cvndie Goudeau
11-23-2004 08:20:07
Garry Brumback
11-22-2004 16:25: 13
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Tracking Number: 954
Actual Date: 12/02/2004
Subject 1 Recommendation:
Approve an amendment to the development agreement between the Beachwalk Resort LLC (fka
Clearwater Seashell Resort L.C.) and the City of Clearwater, Adopt Resolution No. 04-35 and
approve restructuring of the funding in Capital Improvement Project 315-92267 (Coronado/S.
Gulfview Streetscape) by replacing the $2 million General Fund Loan with a $2 million loan from
the Central Insurance Fund.
Summary:
The subject site is 1.63 acres and is located at 201 and 301 South Gulfview Boulevard and 230,
300 and 304 Coronado Drive. The Community Development Board (COB) is scheduled to review
the proposed applications for Flexible Development and Development Agreement approval at
their meeting on November 16, 2004. See attached memorandum for additional information.
When the initial agenda item was approved regarding the additional funding for the Coronado/So
Gulfview Streetscape, it was contingent upon the commencement of this development and
anticipated the elimination of the City's responsiblity to purchase the property from the
developer (for $6 million) if the developer failed to commence construction by 3/6/06. The
elimination of this requirement would have released $6 million worth of funding, $2 million of
that being General Fund. Since this $2 million in General Fund money will not be able to be
released until 3/6/06 and the funding for Coronodo/S. Gulfview is needed prior to that time, we
will need to replace the $2 million in General Fund money in the Corondo/S. Gulfview project
with $2 mllion in Central Insurance Fund loan until such time as the requirement to purchase
the property has been eliminated (3/7/06). At that time, a budget amendment will be made to
return the Central Insurance Fund money and replace it with General Fund money. The funding
for this project will be put in place upon the developer moving forward on their project and
depostiing the appropriate funds with the City of Clearwater. A quarterly amendment will be
processed to reflect the budget at that time.
Originating: Planning
Section Administrative public hearings
Category: Code Amendments, Ordinances and Resolutions
Public Hearinq: Yes
Advertised Dates: 11/05/2004
Financial Information:
Review Approval
Cvndi TaraDani
11-02-2004 15:11:58
Cvndie Goudeau
11-05-2004 13:45:57
Sue Diana
11-08-2004 08:40:20
Pam Akin
11-03-2004 15:59:32
Garrv Brumback
MarQie Simmons
Bill Horne
City Council
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11-05-2004 13:33:54
11-04-2004 16:07:29
11-05-2004 23: 18:00
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Interoffice Correspondence Sheet
TO:
BILL HORNE, CITY MANAGER
FROM:
CYNDI TARAPANI, PLANNING DIRECTOR
RE:
BEACHW ALK RESORTS, LLC
PROPOSED DEVELOPMENT AGREEMENT
DATE:
NOVEMBER 1, 2004
Taub Properties, Inc. has purchased the property formerly known as the Clearwater
Seashell on Clearwater Beach. The new development entity, Beachwalk Resorts, LLC has two
pending applications to make revisions to the previously approved site plan and development
agreement. The Community Development Board will review both applications at its November
16, 2004 meeting and the Planning Department will report the results of that review at the
November 18,2004 meeting of the City Council.
With regard to the previously approved site plan, the developer proposed changes to the
plan that the Planning Department approved on October 4, 2004 as minor changes not requiring
Community Development Board approval. These minor changes include reduction in hotel room
sizes, stepping back of floor plans on the 13th floor and adding one additional floor in the
connector bridge among other minor changes. The major elements ofthe project as a resort hotel
containing 250 rooms, all previously approved hotel amenities and 400 public parking spaces
remain a valid part ofthe project.
In addition to the minor changes, the developer separately proposed a major change to the
site plan which proposes to allocate an additional 24 units from the Beach by Design density pool
and to convert 24 of the developer's hotel units to 18 residential condominium units. These
changes will be reviewed by the CDB on November 16, 2004 as part of the site plan and as an
amendment to the Development Agreement.
With regard to the Development Agreement, the new developer proposes changes to the
existing Agreement in several areas as described below. The City Council has the authority' to
review and make a decision on these changes.
1.
Increase the number of hotel units allocated from the Beach by Design
density pool from 185 to 209 units, an increase of 24 units. The project
will still consist ofa total of250 resort hotel rooms. (Section 3.01.1)
2.
Add a new use to the project of 18 residential condominium units, to be
converted from 24 of the developer's existing hotel units. (Section
2.03. 1. d)
3.
Reduce the amount of retail/restaurant use from 50,000 square feet to
25,000 square feet. (Section 2.03. 1. c)
4.
Beachwalk is now being designed and constructed solely by the City,
revised from the previous agreement where the developer had the option
of constructing the project with repayment to the City less his fair share.
(Section 5.04.1)
5.
A revision in the method of payment for the developer's fair share of
Beachwalk from the original method based on the proportion of the
project's front footage to a fixed cost of $ 1,190,000, subject to
construction costs escalator should payment be received after April 1,
2005. (Section 5.05.5b)
6.
The City will phase the Beachwalk project in a schedule more acceptable
to the developer so that construction of the hotel and the road project are
proceeding simultaneously as much as practicable. Beachwalk will be
phased to construct the portion adjacent to the hotel project earlier than the
southern half of the road project. The developer agrees to pay the
additional costs of $280,000 associated with accelerating the construction
schedule. Therefore, the total funds to be paid by the Developer for
Beachwalk is $1,470,000 comprised of the fair share amount and the
accelerated construction payment. (Section 5.05.5b and Exhibit D)
7.
A change in the concession agreement to provide that the Developer no
longer has exclusive rights to concession of beach chairs and umbrellas on
the beach in front of their site, rather the City retains the rights to
providing these specific concessions throughout the Beach including the
property in front of the Beach. The City has agreed to certain quality
standards regarding the provision of these specific concession materials;
should the City's concessionaire not meet these quality standards, the
Developer may demand compliance with the quality standards and if not
cured, the Developer may provide these specific concessions instead of the
City's concessionaire. The Developer retains the right to provide
concessions of beach sundries. (Section 5.04.7)
8.
New language has been added to confirm/clarify that the Developer's
method of ownership of the hotel is permissible but that the hotel units
must operate as a hotel under a single operator and not be used for
permanent residential use. (Section 2.03.1.c. and 2.03.2)
9.
All references throughout the document to Marriott Hotel as the operator
are revised to Hyatt or other operator meeting the quality standards.
10.
References to the Interim Project are deleted throughout the document.
The Interim Project would have allowed a surface public parking lot until
hotel construction was initiated.
All relevant city departments including Economic Development, Finance, Planning,
Public Works and Legal have reviewed this project in great detail and based on their
concurrence, the Planning Department recommends approval of this development agreement as
prepared and presented to the City Council. Thank you.
cc: Garry Brumback, Assistant City Manager
Pam Akin, City Attorney
Mahshid Arasteh, Public Works Administrator
Geraldine Campos, Interim Economic Development Director
Margie Simmons, Finance Director
--l
RESOLUTION 04-35
A RESOLUTION OF THE CITY OF CLEARWATER,
FLORIDA APPROVING A DEVELOPMENT AGREEMENT
BETWEEN THE CITY OF CLEARWATER AND
BEACHWALK RESORT, LLC., ENTITLED "SECOND
AMENDED AND RESTATED DEVELOPMENT
AGREEMENT"; PROVIDING AN EFFECTIVE DATE.
WHEREAS, pursuant to 9163.3221, e1. seq., the City of Clearwater is desirous of
entering into a development agreement with Beachwalk Resort, LLC; now, therefore,
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
CLEARWATER, FLORIDA:
Section 1. The Development Agreement between the City of Clearwater and
Beachwalk Resort, LLC, a copy of which is attached as Exhibit "A" is hereby approved.
Section 2. Pursuant to 9 163.3239, Florida Statutes (2004), the City Clerk is
hereby instructed to record the Development Agreement with the Clerk of the Circuit
Court in Pinellas County within fourteen (14) days of execution, and to send a copy of
the recorded Development Agreement to the State land planning agency within fourteen
(14) days after it is recorded with the Clerk of the Circuit Court.
Section 3.
This resolution shall take effect immediately upon adoption.
PASSED AND ADOPTED this _ day of
,2004.
Brian J. Aungst
Mayor
Attest:
Cynthia E. Goudeau
City Clerk
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Parking Rates Provided by Taube
Comparable Parking Rates
Visitor Valet
Dalily Maximum Daily Maximum
Fort Lauderdale Marriott
Miami Beach Marriott
Adams Mark Clearwater
Miami Beach Fairfield Inn
Miami Beach Wyndaham
San Juan Marriott
$12.00
$18.00
$21.00
$15.00
$18.00
$18.00
$12.00
Meter Rate Samples Provided by Staff
Miami Beach has 2 directly on the beach:
$1/Hr, 2nd hr. $2/hr & $6/hr. after 3 hours with a max of $16.
$10 Flat fee between 9pm - 6am (Fri-Sun)
Daytona (Adam's Mark):
$1/Hr. $6/Daily Max.
Hollywood (On Beach);
$5 Flat fee (24 hours Fri/Sat.; Sun - Thurs. 6AM - Midnight)
Ft. Lauderdale (Close to Beach):
$1.251 Hour
Looking at the Chance South Beach report, they are recommending either $.25/hour increases every 2 years
or $.50/hour increases every 5 years. The every 2 year increases are probably more realistic. Based on our
current rates we would most likely open a new City Garage with the following rates:
$1.75/ Hour (Mon - Thurs.) wI $12 Max.
$2.25 I Hour (Fri - Sun) wi $15 Max.
ReS' 8 ' 2.
EXHIBITS
Legal Description of Controlled Property.........................................................................A
Project Description................................................................................. .......... .......... ..... B
Project Site............................................................ ........................................ ................. C
Project Development Schedule...................................................................................... D
Covenant Trip Generation Management Program............ ............................................... E
Covenant Regarding Hurricane Watch Closure & Use & Occupancy of Resort
Hotel................................................................................................................................ F
List of Required Permits & Approvals ............................................................................. G
Public Improvements...................................................................................................... H
Appraisal I nstructions ....................................................................................................... I
Covenant of Unified Use.............................. .................................................................... J
License Agreement........................................................................................................... K
Beach Concession Standards................................................................. ..........................L
Beach Walk Improvement Schedule.................................................................................M
Minimu m Hotel Quality Standards................................................................................. . .. N
rParkina Rate ComDarables...................... .......................... ...... .............. ..................... .015
5.04. City's Obligations.
10. Additional Public Parkinq. The City agrees that the City will not use
public funds to provide more than three hundred (300) additional
parking spaces (net increase in the number of spaces above the
number of public parking spaces in existence on the effective date
of this Agreement) which are available for use by the public within a
radius of a quarter-mile of the Project Site for a period of five (5)
years after the issuance of a certificate of occupancy for the
Project, unless otherwise agree to by the Parties.
[Notwithstandina the foreaoina. the Darkina restrictions in this
Section 5.04(10) do not aDDlv Drovided that:]8
a. The Darkina SDaces are constructed on the City owned
Marina Site.]9
r b. The Darkina SDaces are City financed. owned and
manaaed.l10
c. The Darkina SDaces comDlv with the rate reauirements set
out in Section 5.05(3) herein,]]]
d. The Darkina SDaces do not ODen Drior to two (2\ vears
after DeveloDer obtains a certificate of OCCUDancv for the
Proiect.l12
5.05. Obligations of the Developer.
1 Resort Hotel and Parkinq Garaqe Proiect. The Developer shall
build and operate a two hundred and fifty (250) room resort hotel to
be operated as a Hyatt resort or by an operator other than Hyatt
who meets the standards set forth for the hotel operator in Exhibit N
Minimum Quality Standards, together with a parking garage
containing at least seven hundred and fifty (750) parking spaces
and eighteen (18) residential units. The parking spaces shall be no
narrower than nine (9) feet and no shorter than eighteen (18) feet,
and no two-way aisle shall be less than twenty five (25) feet in
width.
The City agrees that Hyatt Corporation is an operator of hotels
under a national brand that is generally regarded as operating
hotels at a standard regarded as being higher that the minimum
standard required of a AAA three diamond or a Mobil 3 star hotel.
2 Responsibilitv for On-Site Costs. The Developer shall be
responsible for all on-site costs relative to the development of the
Project, including the parking spaces which are required to be open
to the public.
3 ParkinQ. The Developer agrees to make at least four hundred (400)
parking spaces within the Project available to the general public
within the parking garage. The Developer may charge the public for
use of the parking spaces which are available to the general public
on terms and rates which are market-based and commensurate
with terms and rates which are in effect for comparable beachfront,
covered parking structures in Florida resort areas{:-}13r. a list of
which is attached hereto as Exhibit O. ]14
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SECOND AMENDED AND RESTATED DEVELOPMENT AGREEMENT FOR
PROPERTY
IN THE
CITY OF CLEARWATER
between
THE CITY OF CLEARWATER, FLORIDA,
and
BEACHWALK RESORT, LLC
Dated as of
,2004
TABLE OF CONTENTS
ARTICLE 1. DEFINITIONS............. ......................................................................................................... 2
Section 1.01
Section 1 .02
Section 1.03
Definitions..................................................................... ..................................... ..... 2
Use of Words and Phrases.......................................... ..........................................5
Florida Statutes ........... ................................................. ........... .......... .....................5
ARTICLE 2. PURPOSE, PROPOSAL
AND DESCRIPTION OF PROJECT ............. ............................ ......... ....................... .......... 5
Section 2.01
Section 2.02
Section 2.03
Section 2.04
Finding of Public Benefit and Purpose ...................................................................5
Purpose of Agreement............................................................. ................ ..............5
Scope of Project........................................................................ ....... ......................5
Cooperation of the Parties............................................................... .......................8
ARTICLE 3. REGULATORY PROCESS................................................................................................. 8
Section 3.01
Section 3.02
Section 3.03
Land Development Regulations .............................................................................8
Development Approvals and Permits .....................................................................8
Concurrency........................................................................................................... 9
ARTICLE 4. PLANS AND SPECIFICATIONS ......................................................................................10
Section 4.01 Preparation of Plans and Specifications ..............................................................10
ARTICLE 5. PROJECT DEVELOPMENT ....................... ................ ......... ....... ......................................11
Section 5.01
Section 5.02
Section 5.03
Section 5.04
Section 5.05
Ownership of Project Site..................................................................................... 11
Project Site..... ...................................................................................................... 11
City Option to Purchase ....................................................................................... 11
City's Obligations. ............................................................... ........................... ....... 12
Obligations of the Developer ................................................................................16
ARTICLE 6. PROJECT FINANCING ....................................................................................................19
Section 6.01
Section 6.02
Section 6.03
Section 6.04
Section 6.05
Section 6.06
Section 6.07
Section 6.08
Section 6.09
Section 6.10
Section 6.11
Section 6.12
Notice of Project Financing to City....................................................................... 19
Copy of Default Notice to City ..............................................................................19
City Option to Pay Mortgage Debt or Purchase Project.......................................19
Assignment of Rights Under Agreement to Project Lender .................................20
Notice to Project Lender .......................................................................................20
Consent of Project Lender.......................................................... ............... ...........20
Estoppel Certificates ..... ........................................................ ................. ..............21
Cooperation.......................................................................................................... 21
Reinstatement by Project Lender .........................................................................21
New Agreement.................................................................................................... 21
Transfer of New Agreement .................................................................................22
Survival................................................................................................................. 22
ARTICLE 7. CONSTRUCTION............................................................................................................. 22
Section 7.01
Section 7.02
Section 7.03
Section 7.04
Section 7.05
Site Work.............................................................................................................. 22
Construction ........................................................................................................ 22
Construction Completion Certificate...................................... ..... .............. ............24
City not in Privity..................... ......................................................................... ..... 25
Construction Sequencing and Staging Area ........................................................25
ARTICLE 8. INDEMNIFICATION ................................................... ............................ ....... ....................25
Section 8.01 Indemnification by the Developer.. ......... ............. ............... .................................. 25
Section 8.02 Indemnification by the City ...................................................................................26
Section 8.03 Limitation of Indemnification.................................................................................27
ARTICLE 9. REPRESENTATIONS, WARRANTIES AND COVENANTS OF
THE DEVELOPER.............. .......................................................... ....................................27
Section 9.01 Representations and Warranties..........................................................................27
Section 9.02 Covenants..................................................................................................... .......29
ARTICLE 10. REPRESENTATIONS, WARRANTIES AND COVENANTS OF
THE CiTy............... ......................................................................................................... 30
Section 10.01 Representations and Warranties ............ ................ ............... ...... .................. ....... 31
Section 10.02 Covenants ............................................................................................................31
ARTICLE 11. CONDITIONS PRECEDENT ........................ ..... ............ .................... ........................... ....... 32
Section 11.01 Construction of Project .........................................................................................32
Section 11.02 Responsibilities of the Parties for Conditions Precedent .....................................33
ARTICLE 12. DEFAULT; TERMINATION ............................................................................................33
Section 12.01
Section 12.02
Section 12.03
Section 12.04
Project Default by the Developer.................. .......... ......................... .............. ....... 33
Default by the City ................................................................................................35
Obligations, Rights and Remedies Cumulative ........... ......................................... 36
Non-Action on Failure to Observe Provisions of this
Agreement......................................................................................................... 36
Termination........................................................................................................... 36
Termination Certificate................... ...................................................................... 38
Section 12.05
Section 12.06
ARTICLE 13. RIGHT TO CONTEST.......... ................................. ............ ............... ............................... 38
Section 13.01 Right to Contest....................................................................................................38
Section 13.02 Conditions............................................................................................................. 38
ARTICLE 14. ARBITRATION................................................................................................................ 39
Section 14.01 Agreement to Arbitrate....................... ............. ........................................... ..........39
Section 14.02 Appointment of Arbitrators....................................................................................39
Section 14.03 General Procedures .............................................................................................41
Section 14.04 Majority Rule... ..................................................................................................... .41
Section 14.05 Replacement of Arbitrator ............................ ...... ....... .................................... ....... 41
Section 14.06 Decision of Arbitrators ............. ............. ....................... ............. ...................... ......41
Section 14.07 Expense of Arbitration ........................ ............................... ................... ................42
Section 14.08 Accelerated Arbitration .........................................................................................42
Section 14.09 Applicable Law .....................................................................................................43
Section 14.10 Arbitration Proceedings and Records ..................................................................43
ARTICLE 15. UNAVOIDABLE DELAY .................................................................................................43
Section 15.01 Unavoidable Delay ...............................................................................................43
ARTICLE 16. RESTRICTIONS ON USE ...............................................................................................44
Section 16.01 Project......... .............. .......................... ............................................ .................... .44
ARTICLE 17. FIRE OR OTHER CASUALTY; CONDEMNATION .......................................................44
Section 17.01 Loss or Damage to Project...................................................................................44
Section 17.02 Partial Loss or Damage to Project .......................................................................45
Section 17.03 Project Insurance Proceeds .................................................................................45
Section 17.04 Notice of Loss or Damage to Project ...................................................................46
Section 17.05 Condemnation of Project or Project Site; Application
of Proceeds....................................................................................................... 46
Section 17.06 Approvals....................................... ............................................. .......................... 46
ARTICLE 18. MISCELLANEOUS............................................................ .............. ....................... ........ 46
Section 18.01
Section 18.02
Section 18.03
Section 18.04
Section 18.05
Section 18.06
Section 18.07
Section 18.08
Section 18.09
Section 18.10
Section 18.11
Section 18.12
Section 18.13
Section 18.14
Section 18.15
Section 18.16
Section 18.17
Section 18.18
Section 18.19
Section 18.20
Assignments......................................................................................................... 46
Successors and Assigns.......................................................... ....................... .... .47
Notices.................................................................................................................. 47
Applicable Law and Construction .........................................................................48
Venue; Submission to Jurisdiction .......................................................................48
Estoppel Certificates ............................................................................................ 49
Complete Agreement; Amendments ....................................................................49
Captions......... .................. ............................................................................. .......50
Holidays................................................................................................................ 50
Exhibits........................ .................................................................. .......................50
No Brokers............................................................ ................... .............................50
Not an Agent of City .............................................................................................50
Recording of Development Agreement................................................................ 50
Public Purpose.. .................................................. ...................... ...........................50
No General Obligation......... ................................ ...................... ......... ...... ............51
Other Requirements of State Law.. ................... ......................................... .......... 51
Technical Amendments, Survey Corrections .......................................................51
Term; Expiration; Certificate................................................................................. 51
Approvals Not Unreasonably Withheld.. ....... ................. ............................ .......... 52
Effective Date....................................................................................................... 52
EXHIBITS
Legal Description of Controlled Property... ..... .............................. ................ ......... ............................... .... .... A
Project Description..... ............................................. .............. ................. ..... .................... ............. ................ B
Project Site............................ ........... ............................................................................................. ....... ........ C
Project Development Schedule ....................................................................................................................0
Covenant Trip Generation Management Program ........... ..................... ................ ................... .................... E
Covenant Regarding Hurricane Watch Closure & Use & Occupancy of Resort Hotel .................................F
List of Required Permits & Approvals......... ..................... ............................. ................................................ G
Public Improvements .... .................................. ..................................................... ......................................... H
Appraisal Instructions.. ............................................. ............................................................................ ..........1
Covenant of Unified Use.... .................. ...................................... .......................................................... .......... J
License Agreement...................................................................................................................... ................. K
Beach Concession Standards................ .................................................................. ....................................L
Beach Walk Improvement Schedule ..... ......................................................................................................M
Minimum Hotel Quality Standards ....... ............................................ .......................................................... ..N
This Second Amended Agreement for Development of Property (the
"Agreement") is made as of this _ day of , 2004, by and
between THE CITY OF CLEARWATER, FLORIDA, a Florida municipal
corporation (the "City"), and BEACHWALK RESORT, LLC, a Florida limited
liability company (the "Developer").
WITNESSETH:
WHEREAS, the City of Clearwater has embarked on a community
revitalization effort for Clearwater Beach;
WHEREAS, one of the major elements of the City's revitalization effort is a
preliminary design for the revitalization of Clearwater Beach entitled Beach by
Design;
WHEREAS, Beach by Design identifies a need for additional public
parking on Clearwater Beach;
WHEREAS, Beach by Design calls for the removal and replacement of
surface parking spaces located to the west of South Gulfview to the south of Pier
60 Park;
WHEREAS, the City has adopted Beach by Design pursuant to the
Pinellas Planning Council's Rules in support of the City's Comprehensive Plan;
WHEREAS, Beach by Design proposed a limited number of catalytic
resort projects to reposition and re-establish Clearwater Beach as a quality,
family resort community and further provides for a limited pool of additional hotel
units ("Hotel Unit Pool") to be made available for such projects;
WHEREAS, because increased residential density on barrier islands is a
critical concern under Florida law, Beach by Design requires the use of the Hotel
Unit Pool for overnight accommodations and limits tenancies to 30 days or less.
WHEREAS, a key criteria for eligibility for the Hotel Unit Pool is the
maintenance and operation of the project as resort hotel operating under a
national or international "flag" or other comparable marketing affiliation or
program;
WHEREAS, Beachwalk Resort, LLC proposes to develop a resort hotel
and residential project on certain property fronting on South Gulfview (the
"Project Site") and has proposed to include at least seven hundred and fifty (750)
parking spaces of which at least four hundred (400) spaces shall be open to the
public;
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ADOPTED
WHEREAS, it is necessary that the City take certain actions in order to
make it possible for Beachwalk Resort, LLC to develop the Project Site in
accordance with the goals and objectives of Beach by Design;
WHEREAS, the City has conducted such hearings as are required by and
in accordance with Chapter 163.3220 F. S. and applicable law;
WHEREAS, the City has determined that as of the Effective Date of this
Agreement, the proposed development is consistent with the City's
Comprehensive Plan and Land Development Regulations;
WHEREAS, the City and Developer entered into a Development
Agreement for development of real property in the City of Clearwater dated
March 13, 2001, which was amended by the First Amended and Restated
Development Agreement dated August 28, 2002;
WHEREAS, it is necessary to enter into this Second Amended and
Restated Development Agreement in order to revise the funding and construction
procedures for Beach Walk, authorize 24 additional units from the Hotel Unit
Pool, change the permitted uses, revise the Termination provisions, revise the
hotel quality standards, revise the beach concessions provisions and other
changes;
WHEREAS, the City has conducted public hearings as required by 9 4-
206 and 4-606 of the Community Development Code;
WHEREAS, at a duly called public meeting on , 2004, the
City Council approved this Amended and Restated Development Agreement and
authorized and directed its execution by the appropriate officials of the City;
WHEREAS, the members of Beachwalk Resort, LLC have approved this
Agreement and has authorized certain individuals to execute this Agreement on
its behalf;
NOW, THEREFORE, in consideration of the mutual promises and
covenants contained herein, the parties hereby agree as follows:
ARTICLE 1. DEFINITIONS.
1.01. Definitions. The terms defined in this Article 1 shall have the following
meanings except as herein otherwise expressly provided:
1. "Agreement" means this Second Amended and Restated Agreement for
Development of Property including any Exhibits and any amendments thereto.
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2. "Beach by Design" or "Plan" means the strategic redevelopment plan for
Clearwater Beach dated 2001, which was adopted by the City Council pursuant
to the provisions of the Pinellas County Planning Councils Rules for the
designation of a Community Redevelopment District, as amended by Ordinance
7194-94.
3. "City" means the City of Clearwater, Florida, a Florida municipal corporation.
4. "City Council" means the governing body of the City.
5. "Commencement Date" means the date on which Developer commences or
causes a Contractor to commence construction (see Section 5.05(12)).
6. "Completion Date" means the date on which the last certificate of occupancy
required for the Project is issued.
7. "Construction Completion" means the date a Construction Completion
Certificate is issued (see Section 7.03).
8. "Controlled Property" means those properties within the Project Site which
have been purchased by the Developer or an affiliate or nominee on the Effective
Date of this Agreement (see Section 5.01) which are more particularly described
in the legal description set out in Exhibit A to this Agreement.
9. "Developer" means, for the purposes of this Agreement, Beachwalk Resort,
LLC and its successors and assigns as provided in Article 18.
10. "Effective Date" means the date of approval and execution of the
Development Agreement.
11. "Exhibits" means those agreements, diagrams, drawings, specifications,
instruments, forms of instruments, and other documents attached and designated
as exhibits to, and incorporated in and made a part of this Second Amended and
Restated Development Agreement.
12. "Garage Access Improvements" means the pedestrian overpass, landing,
arcade, elevated sidewalk, and facilities to provide concessions along the
western facade of the Project (but not within the resort building) providing access
to the proposed garage which garage shall include at least four hundred (400)
parking spaces as a part of the Project which are to be available to the general
public, as more particularly described on Exhibits Hand L. The Garage Access
Improvements shall be owned by the City and shall be maintained by the
Developer in accordance with operating standards compatible with the Hotel.
13. "Meeting Space" means any building floor area which can be used in
conjunction with conference or meeting activities.
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14. "Net Cost of South Gulfview and Beach Walk Improvements" means the total
cost of the South Gulfview and Beach Walk Improvements, including any debt
service, and other funds from sources other than the City, not including any fair
share or pro rata payments made by the owners of other properties which front
on South Gulfview.
15. "Permits" means all land development approvals and consents required to be
granted, awarded, issued, or given by any governmental authority in order for
construction of the Project, or any part thereof, to commence, continue or be
completed.
16. "Plans and Specifications" means, as to each part of the Project to be
developed, the site plan for the Project to be developed, filed with the City as
required by the Land Development Regulations for the purpose of review and
approval.
17. "Project" means, collectively, the concept of development for a resort hotel
proposed by the Developer as described in Section 2.03(1) of this Agreement
and the preliminary plans which are attached hereto as Exhibit B.
18. "Project Site" means the land area generally bounded by the western edge of
the right-of-way of Coronado Street, on the north by the southern boundary of the
Golden Sands Motel property, sometimes referred to as the "Spyglass property",
on the south by the northern boundary of the property popularly known as the
"Legends property," and on the west by the centerline of South Gulfview, which is
more particularly described and depicted on Exhibit C (see Section 5.02).
19. "South Gulfview and Beach Walk Improvements" means the proposed
realignment of South Gulfview and the construction of a thirty-five (35) foot wide
promenade, a ten (10) foot bicycle/skating path, a ten (10) foot beachfront
pedestrian path, thirty two (32) paid parallel surface parking spaces and
associated landscaping from the Adams Mark Resort to Coronado Street, as
more particularly shown on Exhibit H.
20. "Termination Date" means the date a termination certificate is issued
pursuant to Article 12.
21. "Termination for Cause" means a termination which results from an uncured,
material breach of the Agreement.
22. "Unavoidable Delay" means a delay as described in Article 15 hereof.
23. "Vacation of Rights-of-Way" means the abandonment of the right-of-way of
Third Street between the right-of-way of Coronado and the centerline of the
existing right- of-way of South Gulfview and the eastern half of the existing right-
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ADOPTED
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of-way of South Gulfview within the Project Site by the City in favor of Developer,
in order that the goals and objectives of the Comprehensive Plan may be better
accomplished.
1.02. Use of Words and Phrases. Words of the masculine gender shall be
deemed and construed to include correlative words of the feminine and neuter
genders. Unless the context shall otherwise indicate, the singular shall include
the plural as well as the singular number, and the word "person" shall include
corporations and associations, limited liability corporations and partnerships,
including public bodies, as well as natural persons. "Herein," "hereby,"
"hereunder," "hereof," "hereinbefore," "hereinafter" and other equivalent words
refer to this Agreement and not solely to the particular portion thereof in which
any such word is used.
1.03. Florida Statutes. All references herein to Florida Statutes are to Florida
Statutes (2004), as amended from time to time.
ARTICLE 2. PURPOSE AND DESCRIPTION OF PROJECT.
2.01. Finding of Public Purpose and Benefit. The proposed Project, including
the acquisition of the Controlled Property by the Developer and the design,
construction, completion and operation of the Project, and each part thereof, is
hereby found by the parties hereto: (1) to be consistent with and in furtherance of
the objectives of the Comprehensive Plan of the City of Clearwater, (2) to
conform to the provisions of Florida law, (3) to be in the best interests of the
citizens of the City, (4) to further the purposes and objectives of the City,
including, without limitation, the addition of hotel rooms adjacent to the beach
providing for transient occupancy pursuant to the standards established
hereunder, (5) to further the public interest on Clearwater Beach, and (6) to
implement Beach by Design for South Gulfview, including the removal of parking
from the dry sand beach, implementation of the South Gulfview and Beach Walk
Improvements and the Garage Access Improvements to be constructed as a part
of the Project.
2.02. Purpose of Agreement. The purpose of this Agreement is to further the
implementation of Beach by Design by providing for the development of the
Project Site and the construction of certain public improvements, all to enhance
the quality of life, increase employment and improve the aesthetic and useful
enjoyment of Clearwater Beach and the City, all in accordance with and in
furtherance of the Comprehensive Plan of the City of Clearwater and as
authorized by and in accordance with the provisions of Florida law.
2.03. Scope of the Project.
1. The Project shall only include public parking, private parking, resort
hotel, residential and retail uses and appropriate accessory uses and shall
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ADOPTED
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be developed in substantial conformity with the preliminary plans of
development which are attached as Exhibit B. The Project Site is a
"Community Redevelopment District," pursuant to the Pinellas County
Planning Council's Rules which authorizes an increase in hotel unit
density pursuant to the provisions of Beach by Design. The intensity of
permitted use on the Project Site shall be:
a. Public Parking - at least 400 spaces.
b. Private parking -at least 350 spaces.
c. Hotel - The Hotel shall include no more than two hundred
fifty (250) hotel units (which may be submitted to condominium
ownership), a minimum of twenty thousand (20,000) square feet of
Meeting Space and other amenities accessory to the Hotel, including, but
not limited to restaurants, bars, exercise and spa facilities, beach club,
outdoor recreation space, storage, back office and administration areas
and other functional elements related to the Hotel, including not more than
twenty five thousand (25,000) square feet of retail/restaurant floor area.
Of the hotel units, 209 are Hotel Unit Pool units, which shall be required to
be submitted to a rental program requiring that such unit be available for
overnight hotel guests on a transient basis for no fewer than 330 days in
any calendar year, subject to force majeure events making such rooms
unavailable for occupancy and subject further to the right of the operator
to remove such rooms from service as necessary to assure compliance of
such rooms with the operating standard of such operator. In order to
assure the high quality resort experience called for under this Agreement,
all such units, as well as the units not representing bonus units, shall be
operated by a single hotel operator who shall meet the requirements as to
operating standards set forth in Exhibit N of this Agreement.
d. Residential Units - not more than 18 units.
2. Nothing shall preclude the Developer from developing or operating all or
portions of the Project elements using any ownership format permitted
under Florida Statutes including individual ownership formats provided
that the requirements as to availability for transient occupancy and as to a
single hotel operator set forth in Section 2.03(1) (c) are satisfied.
3. Up to twenty-five percent (25%) of the hotel units may be suites with
kitchens, including all typical kitchen equipment and amenities. In addition,
partial kitchens or mini-kitchens shall be permitted.
4. Notwithstanding any other provision of this Agreement, no occupancy in
excess of thirty (30) days per stay shall be permitted in any hotel unit
which is developed as a part of the Project. In addition, no hotel unit shall
TPA:340249:9
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ADOPTED
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be used as a primary or permanent residence and each unit from the
Hotel Unit Pool shall be required to be available to transient hotel guests
and to be operated as described in Section 2.03(1 )(c). Prior to the
issuance of a certificate of occupancy for the resort hotel, the Developer
shall record a covenant and restriction which is enforceable by the City,
substantially in accordance with Exhibit F, limiting the use and operation of
the resort hotel units and implementing this paragraph.
5. As a condition of the allocation of units from the Hotel Unit Pool pursuant
to the designation of Clearwater Beach as a Community Redevelopment
District pursuant to the Pinellas County Planning Council's Rules, the
Developer shall comply with each of the standards established in Beach
by Design, including:
a. The resort hotel which is a part of the Project shall provide a full
range of on and off site amenities for the guests of the resort,
including a full service restaurant, room service, valet parking,
exercise facilities, pool, and meeting areas and access to boating,
fishing and golf off- site. Off site amenities may be provided through
a concierge service.
b. The resort hotel which is a part of the Project shall be designed and
operated as a national or international "flag" or other comparable
marketing affiliation or program which will facilitate the repositioning
of Clearwater Beach as a national and international resort
destination.
c. Prior to the issuance of a certificate of occupancy for the resort
hotel which is a part of the Project, the Developer shall record a
covenant and restriction which is enforceable by the City,
substantially in accordance with Exhibit E, obligating the Developer
to develop, implement and operate, at all times when the resort
hotel is open, a Trip Generation Management Program which shall
include the provision of non-private automobile access to and from
the resort which shall include at least an airport shuttle and resort-
provided transportation to off-site amenities and attractions.
d. Prior to the issuance of a building permit authorizing the
construction of the resort hotel units, the. Developer shall record a
covenant and restriction which is enforceable by the City,
substantially in accordance with Exhibit F, that obligates the
Developer to close and vacate all persons (except for emergency
personnel required to secure and protect the facilities) from the
resort hotel within twelve (12) hours after the issuance of a
hurricane watch by the National Hurricane Center which includes
Clearwater Beach.
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2.04. Cooperation of the Parties. The City and the Developer recognize that the
successful development of the Project and each component thereof is dependent
upon the continued cooperation of the City and the Developer, and each agrees
that it shall act in a reasonable manner hereunder, provide the other party with
complete and updated information from time to time, with respect to the
conditions such party is responsible for satisfying hereunder and make its good
faith reasonable efforts to ensure that such cooperation is continuous, the
purposes of this Agreement are carried out to the full extent contemplated hereby
and the Project is designed, constructed, completed and operated as provided
herein.
ARTICLE 3. REGULATORY PROCESS.
3.01. Land Development Regulations.
1. Land Use Desionation. The Project Site is designated Tourist
District in the City's land Development Regulations.
2. Amendments to Comprehensive Plan & Land Development
Reoulations. The City has amended the Comprehensive Plan of the
City of Clearwater to recognize the Goals and Objectives set forth
in Beach by Design and has designated Clearwater Beach as a
Community Redevelopment District in accordance with Beach by
Design pursuant to Pinellas County Planning Council Rules.
3. Allocation of Units from Hotel Unit Pool. Subject to the terms and
conditions of this Agreement, the City hereby allocates and grants
to Developer from the Hotel Unit Pool an additional two hundred
nine (209) hotel units to the Project Site in accordance with
applicable law. The allocation of additional hotel units from the
Hotel Pool shall expire and be of no further force and effect unless
the Commencement Date occurs on or before March 6, 2006.
3.02 Development Approvals and Permits.
1. Applications for Development Approval. The Developer shall prepare and
submit to the appropriate governmental authorities, including the City,
applications for approval of all plans and specifications necessary for the
Project, and shall bear all costs of preparing such applications, applying
for and obtaining such permits, including payment of any and all
applicable application, inspection, regulatory and impact fees or charges,
subject to the provisions of Section 5.05(5). The City shall, to the extent
possible, expedite review of all applications. A list of all permits and
approvals required to implement the provisions of this Agreement is
attached as Exhibit G. The failure of this Agreement to address a
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ADOPTED
Page 8
particular permit, condition, or term of restriction shall not relieve the
Developer of the necessity of complying with the law governing said
permitting requirements, conditions, terms or restrictions.
2.
Schedule. A Project Development Schedule is attached to this Agreement
as Exhibit D that identifies specific tasks to be completed through the
entire Project. Failure to accomplish the tasks in the time frames
referenced herein shall not in and of itself result in a default pursuant to
this Agreement.
()
3.
City Cooperation and Assistance. The City shall cooperate with the
Developer in obtaining all necessary Permits required for the construction,
completion and opening for business of the Project. If requested by the
Developer and authorized by law, the City will join in any application for
any Permit, or, alternatively, recommend to and urge any governmental
authority that such Permit or Permits be issued or approved.
4.
Citv Authoritv Preserved. The City's duties, obligations, or responsibilities
under any section of this Agreement, specifically including, but not limited
to, this Section 3.02, shall not affect the City's right, duty, obligation,
authority and power to act in its governmental or regulatory capacity in
accordance with applicable laws, ordinances, codes or other building
regulations. Notwithstanding any other provision of this Agreement, any
required permitting, licensing or other regulatory approvals by the City
shall be subject to the established procedures and substantive
requirements of the City with respect to review and permitting of a project
of a similar or comparable nature, size and scope. In no event shall the
City, due to any. provision of this Agreement, be obligated to take any
action concerning regulatory approvals except through its established
procedures and in accordance with applicable provisions of law.
5.
Impact Fees. The City shall use its best efforts to secure or provide any
lawfully available credits against impact fees applicable to the Project
which are authorized under existing laws and regulations for public
improvements constructed and paid for by the Developer. In the event that
the City is unable to secure a credit against any impact fees, the City shall
use its best efforts, within the limits of the applicable law, to allocate
impact fees collected from the Developer to the public improvements
which are described in Exhibit H to this Agreement or other improvements
in the immediate vicinity of the Project Site.
6.
Commencement of South Gulfview Construction. Developer shall notify
the City sixty (60) days prior to commencement of South Gulfview
pavement removal.
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3.03. Concurrency.
1. Concurrency Required. The parties hereto recognize and
acknowledge that Florida law (specifically, Part II, Chapter 163,
Florida Statutes, and Rule 9J- 5, Florida Administrative Code,
collectively the "Growth Management Act") imposes restrictions on
development if adequate public improvements are not available
concurrently with that development to absorb and handle the
demand on public services caused by development. The City has
created and implemented a system for monitoring the effects of
development on public services within the City. The Developer
recognizes and acknowledges it must satisfy the concurrency
requirements of Florida law and the City's regulations as applied to
this Project.
2. Reservation of Capacity. The City hereby agrees and
acknowledges that as of the Effective Date of this Agreement, the
Project satisfies the concurrency requirements of Florida law. The
City agrees to reserve the required capacity to serve the Project for
the Developer and to maintain such capacity until March 6, 2006
and that such period shall be automatically extended for an
additional three (3) years if the Developer commences construction
by March 6, 2006. The City recognizes and acknowledges that the
Developer will rely upon such reservation in proceeding with the
Project.
3. Required Public Facilities. In addition to the obligations of the City
and the Developer set out in Article 5 of this Agreement, the Public
Utilities Department of the City will provide potable water service
and sanitary sewer service to the Project.
ARTICLE 4. PLANS AND SPECIFICATIONS.
4.01. Plans and Specifications.
1. Responsibilitv for Preparation of Plans and Specifications. The
Developer shall be solely responsible for and shall pay the cost of
preparing, submitting and obtaining approval of the Plans and
Specifications for the Project.
2. Use of Qualified Professionals. The Developer shall retain qualified
professionals to prepare the Plans and Specifications and shall
cause such professionals to prepare the Plans and Specifications.
3. Approval of Plans and Specifications for the Parkina Spaces Which
Are To Be Available to the Public. In order to ensure that the
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AOOPl'ED
Page 10
design of the parking spaces which are to be available to the public
will achieve the City's purpose in making parking available on
Clearwater Beach, the Plans and Specifications for the Project shall
be submitted to the City for review and comment prior to the
submission of any application for a building permit, other than a
foundation permit. The City agrees to diligently proceed with and
complete its review of the Plans and Specifications, and respond to
the Developer as soon as reasonably possible after receipt thereof
and advise the Developer in writing of the City's comments and
objections, if any, thereto. The City shall notify the Developer in
writing within thirty (30) days of receipt that the Plans and
Specifications have or have not been approved, and in the case of
disapproval, the specific reason(s) for such disapproval. If the Plans
and Specifications submitted to the City by the Developer
substantially comply with this Agreement and further the purposes
of the Comprehensive Plan, the City shall approve the Plans and
Specifications as submitted.
ARTICLE 5. PROJECT DEVELOPMENT.
5.01. Ownership of Project Site. The Developer is the owner of certain parcels
of land within the Project Site which are more particularly described in Exhibit A
to this Agreement ("Controlled Property").
5.02. Project Site. The Project Site consists of those properties located in an
area which is bounded by the western right-of-way of Coronado Street, on the
north by the southern boundary of a parcel of land generally known as the
Golden Sands Motel property, on the south by the northern boundary of a parcel
of land generally known as the "Legends" property, and on the west by the
centerline of South Gulfview as more particularly illustrated in Exhibit C.
5.03. City's Option to Purchase.
1. Parkina in the Proiect. At any time within five (5) years after the
issuance of a certificate of occupancy for the parking spaces within
the Project which are to be available to the public, in the event that
the City determines that the parking rates charged by the
Developer for the parking spaces which are available to the public
are unreasonable, which for the purposes of this Paragraph shall
be two and thirty five one hundredths (2.35) times the parking rate
necessary to cover debt service required to publicly construct a
comparable parking space, the City shall have the option to
purchase the parking spaces which are to be available to the public
from the Developer, in the form of a condominium ownership, at the
fair market value of the spaces at the time the City exercises its
option. If requested by the City, the Developer will endeavor to
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segregate the spaces to be conveyed to the City through the
imposition of a condominium regime. The fair market value of the
parking spaces shall be determined by appraisal of the property
pursuant to the appraisal instructions attached hereto as Exhibit I.
The appraisals shall be conducted by two (2) appraisers retained
by the City. One of the appraisers shall be selected from a list of
qualified appraisers submitted to the City by the Developer. In the
event that the two (2) appraisals are within twenty percent (20%) of
each other, the fair market value shall be the average of the two (2)
appraisals. In the event that the appraisals differ by more than
twenty percent (20%), the two appraisers shall select a third
appraiser from the City's master list of qualified appraisers,
including the list submitted by the Developer, and the third
appraiser shall select among the two (2) appraisals which in the
opinion of the third appraiser most accurately represents the fair
market value of the parking spaces.
2. Proiect Site. In the event the Developer fails to commence
construction by March 6, 2006, at Developer's request the City
agrees to purchase the Project Site as described in Exhibit A at fair
market value, but in no event shall the purchase price exceed
$6,000,000. The fair market value shall be established by an
appraisal process. The appraiser shall be directed to establish the
value of the property assuming Third Street and South Gulfview
Drive are not vacated and disregarding the additional development
rights (209 hotel units) provided in the Development Agreement.
The appraisal of the Project Site shall reflect the higher of: (i) the
highest and best use of such property at the time of appraisal, or (ii)
the value of the Project Site with existing buildings and existing
sixty-five (65) hotel units in place at the time of execution of the
Development Agreement (i.e. as existing in 2002, before
demolition, but valued at the time of the appraisal in 2006). The
appraisals shall be conducted by two (2) appraisers retained by the
City. One of the appraisers shall be selected from a list of qualified
appraisers submitted to the City by the Developer. In the event that
the two (2) appraisals are within twenty percent (20%) of each
other, the fair market value shall be the average of the two (2)
appraisals. In the event that the appraisals differ by more than
twenty percent (20%), the two appraisers shall select a third
appraiser from the City's master list of qualified appraisers,
including the list submitted by the Developer, and the third
appraiser shall select among the two (2) appraisals which in the
opinion of the third appraiser most accurately represents the fair
market value of the property.
5.04. City's Obligations.
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r
1 South Gulfview and Beach Walk Improvements. The City shall be
responsible for the design, construction and funding (subject to the
payment by Developer of its pro rata share as provided herein) of
the South Gulfview and Beach Walk Improvements. The City
further agrees to complete construction in accordance with the
schedule attached hereto as Exhibit M. The City's utilization of the
construction schedule in Exhibit M is dependent upon payment by
Developer of Developer's Pro Rata Share (defined herein) and the
Accelerated Construction Payment (defined herein) to the City prior
to the City awarding the construction bid.
2. Vacation of Riohts-of-Wav. The City Council has adopted an
ordinance vacating the right- of-way of 3rd Street between
Coronado Avenue and the centerline of the existing right-of-way of
South Gulfview Drive and the eastern half of the existing right-of-
way of South Gulfview Drive included within the Project Site, as
depicted on Exhibit H. The vacation is conditioned on the
construction of the Project. The Council shall consider adoption of
ordinances amending the vacation ordinances to be effective upon
commencement of construction of the project and to further amend
the ordinances to be consistent with the terms of this Agreement.
The City hereby acknowledges that Developer and Developer's
lender are relying on the City's vacation as described herein.
Developer and Developer's Lender acknowledge that the granting
of such vacation is discretionary by the City Council.
3. Parkino Garaoe. In the event that the City exercises its option to
purchase public parking spaces as provided in Section 5.03 of this
Agreement, not less than forty percent (40%) of the parking spaces
located on the first two levels of the garage shall be designated as
public spaces and such spaces to be conveyed shall be located in
discrete areas which are reasonably accessible to the point or
points of access to the beach. Such conveyance shall be subject to
covenants and restrictions affecting the property that impose
reasonable operating standards with regard to the parking garage
that are compatible with the Hotel and the standards set forth in this
Agreement, however, in no event shall such standards
unreasonably impair the operation and maintenance of the property
as a public parking garage.
4. Permits. The City will cooperate and coordinate with the Developer
with regard to all permit applications, including those to state
agencies, and will facilitate or expedite, to the greatest extent
possible, the permit approval process.
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5. Authoritv for Cafe Seatino. The City understands that the Developer
intends to apply for all necessary permits and licenses for outdoor
cafe seating in connection with the Project. In that connection, the
City shall consider Developer's application pursuant to the
provisions of the City's Land Development Regulations; provided
that such activities shall not interfere with the use of the west half of
the thirty-five (35) feet of the existing right-of- way of South
Gulfview Drive for pedestrian and vehicular movement in
accordance with the provisions of Beach by Design, including the
intra-beach transit system proposed in Beach by Design.
6. Garaoe Access Improvement Approval. The City shall grant the
Developer the authority to construct the Garage Access
Improvements and associated pedestrian facilities extending from
the Project Site across the re-aligned South Gulfview Drive to
public land, as shown on Exhibit H and, in that connection, no later
than the Commencement Date, the City shall grant to the
Developer a License Agreement as described in Exhibit K.
7 Concessions. The City shall grant the Developer authority to
operate concessions on land to the west of the existing centerline
of South Gulfview Drive, adjacent to the Project site, subject to any
existing franchise or concession rights and compliance with all
requirements of the City Code, and subject to a long term license
agreement to be approved by the City, substantially in the form as
Exhibit K. The license agreement shall be for a term of 50 years,
commencing on the date the facilities are available for use, and be
subject to a right of termination by the City for an uncured breach of
a material obligation by the Developer. Such concessions may
include a facility open to the public which provides towels, lockers,
minimal beach sundries, and other beach gear required to operate
a first-class beach hotel, but not including benches, lounges,
umbrellas and side tables. Such facilities shall be built into the
beach landing portion of the pedestrian overpass, as more
particularly depicted on Exhibit H. Notwithstanding the foregoing, in
regard to beach chairs, lounges, umbrellas, side tables and the
level of services associated with the provision thereof ("Beach
Concessions"), the City shall retain the right to utilize a
concessionaire to provide said Beach Concessions. The City
agrees that the City concessionaire shall offer the Beach
Concessions which comply with the standards set out on Exhibit L,
attached hereto and made a part hereof. If the City's franchisee
fails to comply with the standards in Exhibit L Developer may send
written notice to the City specifying the non-compliance, after which
the City has thirty (30) days to cure said non-compliance. In the
event that the non-compliance is not cured within thirty (30) days,
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ADOPTED
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the City agrees that the Developer may thereafter provide the
Beach Concessions and shall retain all income derived therefrom.
If the Developer assumes control of the Beach Concessions, and
the City receives documented complaints that the Beach
Concessions are being denied to non-hotel guests, or if Developer
fails to comply with the standards set out in Exhibit L, the City may
send written notice to Developer specifying the non-compliance. In
the event that the non-compliance is not cured within thirty (30)
days, the City may take back the Beach Concessions.
8. Approval of Plans and Specifications for the South Gulfview and
Beach Walk Improvements. The City shall prepare Plans and
Specifications for the South Gulfview and Beach Walk
Improvements. The City shall provide drafts of such plans to the
Developer for review and comment. The City shall consider the
Developer's comments and recommended changes in the Plans.
9. Timelv Completion. The City recognizes the public importance of
the timely completion of the proposed Project, and time is deemed
to be of the essence. The City considers this Agreement as overall
authority for the Developer to proceed to permit, and agrees to
implement a fast-track review, permitting, and inspection program
for this Project.
10. Additional Public Parkinq. The City agrees that the City will not use
public funds to provide more than three hundred (300) additional
parking spaces (net increase in the number of spaces above the
number of public parking spaces in existence on the effective date
of this Agreement) which are available for use by the public within a
radius of a quarter-mile of the Project Site for a period of five (5)
years after the issuance of a certificate of occupancy for the
Project, unless otherwise agree to by the Parties.
11 . Garaqe Access I mprovements. The Developer shall be responsible
for the design construction and funding of the Garage Access
Improvements, subject to the following reimbursements:
a. The City shall make an amount available equal to fifty
percent (50%) of the net increase in municipal ad valorem
taxes provided by the Project above the ad valorem taxes
generated by the improvements existing on the Project Site
on March 1, 2001, to repay the costs of design and
construction of the Garage Access Improvements, for a
period of time not to exceed twenty five (25 years).
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ADOPTED
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b. The City shall make an amount available equal to fifty (50%)
percent of the net increase in the utility tax provided by the
Project above the utility taxes generated by the
improvements existing on the Project Site in the twelve (12)
months preceding March 1, 2001, as documented by the
Developer, to repay the costs of design and construction of
the Garage Access Improvements, for a period of time not to
exceed twenty five (25) years. In the event that the
Developer fails, for any reason, to document the annual
utility taxes paid by the owners of the existing improvements
on the Project Site in the twelve (12) months preceding
March 1, 2001, the incremental utility tax which is to be
made available to the Developer shall be the increase in
utility taxes above the amount of annual utility taxes paid by
the Developer during any consecutive twelve (12) month
period during which the Beach Place and Glass House
Motels were open and operational, but no earlier than the
twelve (12) months prior to March 1, 2001. In the event that
the Developer fails, for any reason, to document the above
referenced annual utility taxes, the incremental utility tax
which is to be made available to the Developer shall be the
increase in utility taxes above the amount of annual utility
taxes paid by the Developer during the first year of operation
of the Project, which amount shall be provided to the City
within thirty (30) days after the end of the first year of
operation.
c. The City shall make an amount available equal to the
operating income for the thirty two (32) new parking spaces
created as part of the Beach Walk Improvements to repay
the costs of design and construction of the Garage Access
Improvements, for a period of time not to exceed twenty five
(25) years.
5.05. Obligations of the Developer.
1 Resort Hotel and Parkina Garaae Proiect. The Developer shall
build and operate a two hundred and fifty (250) room resort hotel to
be operated as a Hyatt resort or by an operator other than Hyatt
who meets the standards set forth for the hotel operator in Exhibit N
Minimum Quality Standards, together with a parking garage
containing at least seven hundred and fifty (750) parking spaces
and eighteen (18) residential units. The parking spaces shall be no
narrower than nine (9) feet and no shorter than eighteen (18) feet,
and no two-way aisle shall be less than twenty five (25) feet in
width.
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Second Amended Development Agreement
ADOPTED
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The City agrees that Hyatt Corporation is an operator of hotels
under a national brand that is generally regarded as operating
hotels at a standard regarded as being higher that the minimum
standard required of a AAA three diamond or a Mobil 3 star hotel.
2 Responsibilitv for On-Site Costs. The Developer shall be
responsible for all on-site costs relative to the development of the
Project, including the parking spaces which are required to be open
to the public.
3 ParkinQ. The Developer agrees to make at least four hundred (400)
parking spaces within the Project available to the general public
within the parking garage. The Developer may charge the public for
use of the parking spaces which are available to the general public
on terms and rates which are market-based and commensurate
with terms and rates which are in effect for comparable beachfront,
covered parking structures in Florida resort areas.
4 GaraQe Access Improvements. The Developer shall be responsible
for the design, construction and funding of the Garage Access
Improvements
5. Cost of South Gulfview and Beach Walk.
a. The City's portion of the Transportation Impact Fee shall be
credited to the Developer against the cost of Developer's fair
share of the South Gulfview and Beach Walk Improvements
as described in subsection (b) below.
b. The Developer shall be responsible for a pro rata share of
the cost of the South Gulfview and Beach Walk
Improvements, which shall be equal to the net cost of the
South Gulfview and Beach Walk Improvements multiplied by
a fraction in which the front footage of the Project Site is the
numerator and the total frontage along South Gulfview and
Beach Walk Improvements is the denominator.
SPR = (F PRoiF SGBW) x (CSGBW)
SPR = Pro Rata Share
FpROJ = Frontage of Project Site
FsGBW = Total Frontage along South Gulfview
and Beach Walk Improvements
CSGBW = Net Cost of South Gulfview and Beach
Walk Improvements
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Second Amended Development Agreement
ADOPTED
Page 17
The City has determined that the Developer's pro rata share
is One Million One Hundred Ninety Thousand Dollars
($1,190,000.00) ("Developer's Pro Rata Share"). In addition,
Developer agrees to pay the City an additional Two Hundred
Eighty Thousand Dollars ($280,000.00) in exchange for the
City's agreement to utilize the specific construction schedule
attached hereto as Exhibit M ("Accelerated Construction
Payment"). The City's utilization of the construction schedule
in Exhibit M is dependent upon payment of Developer's Pro
Rata Share and the Acceleration Construction Payment to
the City prior to the City awarding the construction bid. The
City agrees to utilize best efforts to meet the construction
schedule specified in Exhibit M recognizing that time is of the
essence. If Developer's Pro Rata Share and Accelerated
Construction Payments are not made by April 1, 2005, the
amount due will be increased each month by the
Construction Cost Index as published monthly by the U.S.
Dept. of Commerce. Such pro rata share shall be paid prior
to issuance of the foundation permit for the project.
c. In the event that any property which fronts on
the South Gulfview and Beach Walk
I mprovements is proposed for redevelopment
using the pool of additional resort units
established pursuant to Beach by Design, the
developer of such property shall be required to
pay to the City a pro rata share of the cost of
the South Gulfview and Beach Walk
Improvements as a condition of development
approval.
6. Covenant of Unified Use. The Developer hereby agrees to execute
the covenant of unified use and development for the Project Site, in
form of Exhibit J attached hereto, providing that the Project Site
shall be developed as a single project and operated and used, as a
unified mixed use project, provided however, that nothing shall
preclude the Developer from selling all or a portion of the Project
Site or the improvements constructed thereon in a condominium or
other form of ownership.
7. Proiect Obliqations. The Developer agrees to carry out the
redevelopment of the Project Site by completing the purchase of all
of the Project Site, preparing project plans and specifications,
obtaining approvals by governmental authorities necessary for
development of the Project, constructing various private
TPA:340249:9
Second Amended Development Agreement
ADOPTED
Page 18
improvements on the Project Site and operating the Project as a
unified and integrated project. The Developer shall take all actions
necessary to maintain control of the Project Site, until a certificate
of occupancy is issued by the City.
8. Dedication of Riqht-of-Wav. Prior to the issuance of a building
permit, other than a foundation permit, authorizing the construction
of the resort hotel units, the Developer shall dedicate ten (10) feet
along the entire eastern boundary of the Project Site, including any
land previously included within the right-of-way of Third Street to
the City as additional right-of-way for Coronado Avenue.
9. Commencement of Construction. The Developer shall commence
construction of the Project by March, 2006, and shall thereafter
diligently pursue completion of the Project.
ARTICLE 6. PROJECT FINANCING.
6.01. Notice of Project Financing to City. As soon as the Developer shall
have obtained any financing for any portion of the Project, the Developer
shall provide the City with a sworn statement identifying the Project
Lender(s) and documenting the type of financing that the Project
Lender(s) has issued in favor of the Developer for the Project.
6.02. Copy of Default Notice to City. The Developer covenants and agrees
that any Project Construction Financing documents shall include
provisions which provide that in the event any Project Financing shall
become due and payable by maturity or acceleration, the Project Lender
shall give written notice thereof to the City by certified mail, return receipt
requested. Such notice from the Project Lender to the City shall state the
basis of the default by the Developer and shall include copies of any
pleadings in any proceeding instituted by the Project Lender(s) incident
thereto.
6.03. City Option to Pay Mortgage Debt or Purchase Project Following
Commencement of Construction of Project.
1. Assiqnment of Mortqaqe. Any mortgage instrument pertaining to
any portion of the Project Site in effect prior to issuance of the
Construction Completion Certificate for such portion of the Project
Site shall provide that following a failure of the Developer to repay
any Project Financing which shall become due and payable by
maturity or acceleration, the City is entitled, upon giving reasonable
written 'notice to the Developer, the Project Lender(s) and any other
holder of such a mortgage, to an assignment of the mortgage
TPA:340249:9
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ADOPTED
Page 19
1-
,
securing the Construction Financing by paying to the Project
Lender an amount of money not to exceed a sum equal to the
amount of money advanced by the Project Lender(s) to the
Developer with respect to the Project Site, together with unpaid
accrued interest on such amount, prepayment penalties, and all
other accrued charges of the Project Lender(s) (including, without
limitation, reasonable attorneys' fees incurred as a result of a
default by the Developer under the Project Construction Financing).
6.04 Assignment of Rights Under Agreement To Project Lender.
Developer may assign to the Project Lender all its right, title and interest
under this Agreement as security for any indebtedness of Developer. The
execution of any assignment, security agreement, or other instrument, or
the foreclosure of the instrument or any sale under the instrument, either
by judicial proceedings or by virtue of any power reserved in the mortgage
or deed of trust, or conveyance in lieu of foreclosure by Developer to the
holder of such indebtedness, or the existence of any right, power, or
privilege reserved in any instrument, shall not be held as a violation of any
of the terms or conditions of this Agreement, or as an assumption by the
holder of such indebtedness personally of the obligations of this
Agreement. No such assignment, foreclosure, conveyance or exercise of
right shall relieve Developer from its liability under this Agreement.
6.05 Notice to Project Lender. If Developer shall encumber its interests
under this Agreement, and if Developer or the holder of the indebtedness
secured by the assignment shall give notice to City of the existence of the
assignment and the address of the holder, then City will mail or deliver to
the Project Lender, a duplicate copy of all notices in writing which City
may, from time to time, give to or serve on Developer under and pursuant
to the terms and provisions of this Agreement. Copies shall be mailed or
delivered to the holder at, or as near as possible to, the same time the
notices are given to or served on Developer. The Project Lender may, at
its option, at any time before the rights of Developer shall be terminated as
provided in this Agreement, do any act or thing that may be necessary and
proper to be done in the observance of the covenants and conditions of
this Agreement or to prevent the termination of this Agreement. All
payments so made and all things so done and performed by the Project
Lender shall be as effective to prevent a forfeiture of the rights of
Developer under this Agreement as they would have been if done and
performed by Developer.
6.06 Consent of Project Lender. This Agreement cannot be amended,
canceled, or surrendered by the Developer without the consent of the
Project Lender.
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ADOPTED
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6.07 Estoppel Certificates. The City agrees at any time and from time to time
upon not less than ten (10) days prior written request by the Developer to
execute, acknowledge, and deliver to any Project Lender a statement in
writing certifying that this Agreement is unmodified and in full force and
effect (or if there have been modifications), being intended that any such
statement delivered pursuant to this Article 6 may be relied upon by the
Project Lender.
6.08 Cooperation. The City and the Developer shall cooperate as to
reasonable requests for assurances any proposed Project Lender for the
purpose of implementing the mortgagee protection provisions contained in
this Agreement and allowing the Project Lender reasonable means to
protect or preserve the liens of such Project Lender upon the occurrence
of a default under the terms of this Agreement.
6.9 Reinstatement by Project Lender. If this Agreement is terminated by
reason of the happening of any event of default, and after any notice and
cure period provided, City shall give prompt notice of this right to reinstate
to the Project Lender, which right to reinstate shall be for a period of ninety
(90) days. However, the Project Lender shall not have any personal
liability for performance of the Developer's obligations under this
Agreement unless and until the Project Lender acquires title to the Project
Site and expressly assumes such liability.
6.10 New Agreement. City shall, on written request of a Project Lender which
has acquired title to the Project Site by foreclosure or deed in lieu of
foreclosure, enter into a new Agreement with such Project Lender, or its
designee, within twenty (20) days after receipt of such request, which new
agreement shall be effective as of the date of such termination of this
Agreement for the remainder of the term of this Agreement and upon the
same terms, covenants, conditions and agreements as are contained in
this Agreement, provided that the Project Lender or its designee shall:
1. Pay to City at the time of the execution and delivery of said new
agreement any and all sums which would have been due under this
Agreement from the date of termination of this Agreement (had this
Agreement not been terminated) to and including the date of the
execution and delivery of said new agreement, together with all
expenses, including but not limited to, attorneys' fees (for trials and
appeals) in a reasonable amount incurred by City in connection
with the termination of this Agreement and with the execution and
delivery of the new agreement, and
2. On or prior to the execution and delivery of said new agreement
agree in writing that promptly following the delivery of such new
agreement, such Project Lender or its designee will perform or
TPA:340249:9
Second Amended Development Agreement
ADOPTED
Page 21
cause to be performed all of the other covenants and agreements
in this Agreement on Developer's part to be performed to the extent
that Developer shall have failed to perform the same to the date of
delivery of such new agreement.
6.11 Transfer of New Agreement. The Project Lender shall have the right to
assign or transfer the new agreement to any person or entity without the
City's consent so long as the new agreement is in good standing and
Project Lender is current in obligations owed to the City. Notwithstanding
the foregoing, any Project Lender that is assigning the new agreement
and the estate created thereby shall provide to the City notice of
assignment and shall cause to be executed and delivered in a form
reasonably acceptable to the City an assumption agreement from the
assignee pursuant to which said assignee assumes the duties,
obligations, covenants, conditions and restrictions of the new agreement.
Upon such assignment and assumption by the assignee, the assignor
shall be released of all liability under the new agreement and, upon
request of the assignor, the City shall execute and deliver to the assignor
a release agreement in a form reasonably acceptable to the assignor
evidencing such release of the assignor from any liability under the new
agreement.
6.12 Survival. The provisions of this Article 6 shall survive the termination of
this Agreement and shall continue in full force and effect thereafter to the
same extent as if Article 6 were a separate and independent contract
made by the City, the Developer and the Project Lender.
ARTICLE 7. CONSTRUCTION OF GARAGE ACCESS IMPROVEMENTS.
7.01. Site Work. The Developer shall be responsible for all site investigation,
environmental testing, demolition and site clearing in regard to the construction of
the Garage Access Improvements.
7.02. Construction.
1. Commencement. The Developer shall construct the Garage Access
Improvements, substantially in accordance with the Plans and
Specifications therefor. The Developer shall commence
construction by March 2006 in accordance with Section 5.05(12).
a. For purposes of this Section 7.02, "commence construction"
means commencement of meaningful physical development
of that part of the Project as authorized by the Building
Permit therefor which is continued and diligently prosecuted
toward completion of that part of the Project.
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Second Amended Development Agreement
ADOPTED
Page 22
b. All obligations of the Developer (including deadlines in the
Commencement Date) with respect to commencement and
continuation of construction in regard to the Garage Access
Improvem~nts, shall be subject to delays and extensions
from time to time for Unavoidable Delay (see Article 15).
The Developer shall not be deemed to be in default of this
Agreement to the extent construction of the Project, or a part
thereof, is not complete by reason of Unavoidable Delay.
2. Pursuit of Construction. Atter the Commencement Date, the
Developer shall continue, pursue and prosecute the construction of
the Garage Access Improvements with due diligence to completion,
and shall not at any time actually or effectively have abandoned (or
its Contractor having actually or effectively abandoned) the work.
For purposes of this subsection (b), "abandoned" means to have
ceased any construction work which effectively advances the
construction of the work toward completion, including removing all
or substantially all of the construction work force from the site of the
Garage Access Improvements.
3. Payment of Contractors and Suppliers. The Developer shall
promptly pay, or arrange to be paid, all moneys due and legally
owing to all persons or organizations doing any work or furnishing
any materials, fuel, machinery or supplies to the Developer or any
Contractors in connection with construction of any part of the
Garage Access Improvements.
4. Maintenance of Construction Site. During the construction of the
Garage Access Improvements, the Developer shall, at its own
expense, keep the site of the Garage Access Improvements in
good and clean order and condition, and the Developer shall
promptly make all necessary or appropriate repairs, replacements
and renewals thereof, structural or nonstructural, ordinary or
extraordinary, foreseen or unforeseen. All repairs, replacements
and renewals shall be equal in quality and class to the original
work. When making such repairs, replacements or renewals, the
Developer shall comply with all laws, ordinances, codes and
regulations then applicable to that part of the Garage Access
Improvements. The Developer shall have the right, atter. written
notice to the City, to contest by appropriate legal proceedings
conducted in good faith, the validity or applicability of any such law,
ordinance, code or regulation, and to delay compliance therewith
pending the prosecution of such proceeding, provided that such
contest shall be in accordance with the Right to Contest provisions
of Article 13.
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Second Amended Development Agreement
ADOPTED
Page 23
7.03 Construction Completion Certificate.
1. For purposes of this Section 7.03, "completion, "complete,"
"substantially complete" or "substantial completion" means, with
respect to construction of the Garage Access Improvements, shall
be the acceptance of the Garage Access Improvements by the City.
2. Upon the substantial completion of the construction of the Garage
Access Improvements in accordance with the provisions of the
Plans and Specifications, the Developer shall prepare and execute
the Construction Completion Certificate, which shall then be
delivered to the City. Upon receipt of the certificate, the City shall
promptly and diligently proceed to determine if construction of the
Project has been completed substantially in accordance with the
Plans and Specifications and this Agreement. Upon making such a
determination, the City shall execute the certificate and return it to
the Developer. The date of the Construction Completion Certificate
shall be the date when all parties shall have executed said
certificate.
3. The Construction Completion Certificate shall constitute a
conclusive determination by the parties hereto of the satisfaction
and termination of the obligations of the Developer hereunder to
construct the Garage Access Improvements described in the
certificate; provided, however, that nothing in this Section shall be a
waiver of the rights, duties, obligations or responsibilities of the City
or any other governmental entity acting in its regulatory or
governmental capacity or an approval of said construction.
4. If the City shall refuse or fail to execute the Construction
Completion Certificate after receipt of a request by the Developer to
do so, then the City shall, within ten (10) days after its receipt of
such request, provide the Developer with a written statement
setting forth in reasonable detail the reason(s) why the City has not
executed the Construction Completion Certificate and what must be
done by the Developer to satisfy such objections so that the City
would sign the certificate. Upon the Developer satisfying the City's
objections, then the Developer shall submit a new request to the
City for execution of the Construction Completion Certificate and
that request shall be considered and acted upon in accordance with
the procedures in this Section for the original request.
5. If the City refuses to execute the certificate and the Developer does
not agree with the objections set forth in the City's statement, then
the Developer may invoke the arbitration procedures set forth in
TPA:340249:9
Second Amended Development Agreement
ADOPTED
Page 24
Article 14 hereof for the purpose of determining if the prerequisites
for execution by all parties of the Construction Completion
Certificate have been met, and if not, what actions must be taken to
satisfy such prerequisites.
6. The Construction Completion Certificate shall be in a form sufficient
to be recorded in the public records of Pinellas County, Florida.
After execution by the City, it shall be promptly returned to the
Developer who shall record the certificate in the public records of
Pinellas County, Florida, and pay the cost of such recording.
7.04 City Not in Privity. The City shall not be deemed to be in privity of contract
with any Contractor or provider of services with respect to the construction of any
part of the Project not constituting all or any part of public improvements.
7.05 Construction Sequencing and Staging Area. Subject to the limitations
caused by the City's construction of the Beach Walk Improvements, the
Developer shall construct the Garage Access Improvements in a manner and
fashion which will minimize the inconvenience of the construction on the property
owners of Clearwater Beach and the residents of the City.
ARTICLE 8. INDEMNIFICATION.
8.01. Indemnification by the Developer.
1. The Developer agrees to indemnify, defend and hold harmless, the
City, its respective agents, officers, or employees from any and all
liabilities, damages, penalties, judgments, claims, demands, costs,
losses, expenses or attorneys' fees through appellate proceedings,
for personal injury, bodily injury, death or property damage arising
out of, or by reason of any act or omission of the Developer, its
agents, employees or contractors arising out of, in connection with
or by reason of, the performance of any and all services covered by
this Agreement, or which are alleged to have arisen out of, in
connection with or by reason of, the performance of any and all
services covered by this Agreement, or which are alleged to have
arisen out of, in connection with, or by reason of, the performance
of such services.
2. The Developer shall indemnify, defend and hold harmless the City,
its officers and employees from any and all liabilities, damages,
costs, penalties, judgments, claims, demands, losses, or expenses
(including, but not limited to, actual attorneys' fees and engineering
fees) arising from or attributable to any breach by the Developer, as
the case may be, of any representations or warranties contained in
Section 9.01, or covenants contained in Section 9.02.
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3. The Developer's indemnity obligations under subsections (1) and
(2) of this Section shall survive the earlier of the Termination Date
or the Expiration Date, but shall apply only to occurrences, acts, or
omissions that arise on or before the earlier of the Termination Date
or the Expiration Date.
4. The Developer's indemnity hereunder is in addition to and not
limited by any insurance policy and is not and shall not be
interpreted as an insuring agreement between or among the parties
to this Agreement, nor as a waiver of sovereign immunity for any
party entitled to assert the defense of sovereign immunity.
8.02. Indemnification by the City.
1. To the extent permitted by law, the City agrees to indemnify, defend
and hold harmless, the Developer, its respective officers, and
employees from any and all liabilities, damages, penalties,
judgments, claims, demands, costs, losses, expenses or attorneys'
fees through appellate proceedings, for personal injury, bodily
injury, death or property damage arising out of, or by reason of, any
act or omission of the City, its respective agents or employees
arising out of, in connection with or by reason of, the performance
of any and all services covered by this Agreement, or which are
alleged to have arisen out of, in connection with or by reason of, the
performance of any and all services covered by this Agreement, or
which are alleged to have arisen out of, in connection with, or by
reason of, the performance of such services.
2. The City shall indemnify, defend and hold harmless the Developer,
its officers and employees from any and all liabilities, damages,
costs, penalties, judgments, claims, demands, losses, or expenses
(including, but not limited to, actual attorneys' fees and engineering
fees) arising from or attributable to any breach by the City, as the
case may be, of any representations or warranties contained in
Section 10.01, or covenants contained in Section 10.02.
3. The City's indemnity obligations under this Section 10.02 shall
survive the earlier of the Termination Date or the Expiration Date,
but shall only apply to occurrences, acts or omissions that arise on
or before the earlier of the Termination Date or the Expiration Date.
The City's indemnity hereunder is not and shall not be interpreted
as an insuring agreement between or among the parties to this
Agreement, but is in addition to and not limited by any insurance
policy provided that said obligation shall not be greater than that
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permitted and shall be limited by the provisions of Section 768.28,
Florida Statutes, or any successor statute thereto.
8.03. Limitation of Indemnification. Notwithstanding anything to the contrary
contained herein, with respect to the indemnification obligations of the Developer
(as set forth in Section 8.01) and the City (as set forth in Section 8.02), the
following shall apply:
1. The indemnifying party shall not be responsible for damages that
could have been, but were not, mitigated by the indemnified party;
2. The indemnifying party shall not be responsible for that portion of
any damages caused by the negligent or willful acts or omissions of
the indemnified party; and
3. There shall be no obligation to indemnify hereunder in the event
that the indemnified party (1) shall have effected a settlement of
any claim without the prior written consent of the indemnifying
party, or (2) shall not have subrogated the indemnifying party to the
indemnified party's rights against any third party by an assignment
to the indemnifying party of any cause or action against such third
party.
ARTICLE 9. REPRESENTATIONS, WARRANTIES AND COVENANTS OF
THE DEVELOPER.
9.01. Representations and Warranties. The Developer represents and
warrants to the City that each of the following statements is currently true and
accurate and agrees the City may rely upon each of the following statements:
1. The Developer is a Florida Limited Liability Company duly
organized and validly existing under the laws of the State of Florida,
has all requisite power and authority to carry on its business as now
conducted, to own or hold its properties and to enter into and
perform its obligations hereunder and under each document or
instrument contemplated by this Agreement to which it is or will be
a party, is qualified to do business in the State of Florida, and has
consented to service of process upon a designated agent for
service of process in the State of Florida.
2. This Agreement and, to the extent such documents presently exist
in a form accepted by the City and the Developer, each document
contemplated or required by this Agreement to which the Developer
is or will be a party have been duly authorized by all necessary
action on the part of, and have been or will be duly executed and
delivered by, the Developer, and neither the execution and delivery
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-------l
thereof, nor compliance with the terms and provisions thereof or
hereof: (i) requires the approval and consent of any other party,
except such as have been duly obtained or as are specifically noted
herein, (ii) contravenes any existing law, judgment, governmental
rule, regulation or order applicable to or binding on the Developer,
(iii) contravenes or results in any breach of, default under or, other
than as contemplated by this Agreement, results in the creation of
any lien or encumbrance upon any property of the Developer under
any indenture, mortgage, deed of trust, bank loan or credit
agreement, the Developer's Articles of Incorporation, or, any other
agreement or instrument to which the Developer is a party or by
which the Developer may be bound.
3.
This Agreement and, to the extent such documents presently exist
in a form accepted by the City and the Developer, each document
contemplated or required by this Agreement to which the Developer
is or will be a party constitutes, or when entered into will constitute,
a legal, valid and binding obligation of the Developer enforceable
against the Developer in accordance with the terms thereof, except
as such enforceability may be limited by applicable bankruptcy,
insolvency or similar laws from time to time in effect which affect
creditors' rights generally and subject to usual equitable principles
in the event that equitable remedies are involved.
--,
,
4. There are no pending or, to the knowledge of the Developer
threatened actions or proceedings before any court or
administrative agency against the Developer, or against any
controlling shareholder, officer, employee or agent of the Developer
which question the validity of this Agreement or any document
contemplated hereunder, or which are likely in any case, or in the
aggregate, to materially adversely affect the consummation of the
transactions contemplated hereunder or the financial condition of
the Developer.
5. The Developer has filed or caused to be filed all federal, state, local
and foreign tax returns, if any, which were required to be filed by
the Developer and has paid, or caused to be paid, all taxes shown
to be due and payable on such returns or on any assessments
levied against the Developer.
6. All financial information and other documentation, including that
pertaining to the Project or the Developer, delivered by the
Developer to the City was, on the date of delivery thereof, true and
correct.
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7. The principal place of business and principal executive offices of
the Developer is in Tampa, Florida, and the Developer will keep
records concerning the Project (such as construction contracts,
financing documents and corporate documents) and all contracts,
licenses and similar rights relating thereto at an office in Pinellas or
Hillsborough Counties.
8. As of the Effective Date, the Developer will have the financial
capability to carry out its obligations and responsibilities in
connection with the development of the Project as contemplated by
this Agreement.
9. The Developer has the experience, expertise, and capability to
develop, cause the construction, and complete the Project and,
oversee and manage the design, planning, construction, completion
and opening for business of the Project.
10. The Developer is the holder of fee simple title to the Project Site
with the exception of the property to be vacated.
9.02. Covenants. The Developer covenants with the City that until the earlier of
the Termination Date or the Expiration Date:
1. The Developer shall timely perform or cause to be performed all of
the obligations contained herein which are the responsibility of the
Developer to perform.
2. During each year that this Agreement and the obligations of the
Developer under this Agreement shall be in effect, the Developer
shall cause to be executed and to continue to be in effect those
instruments, documents, certificates, permits, licenses and
approvals and shall cause to occur those events contemplated by
this Agreement that are applicable to, and that are the responsibility
of, the Developer.
3. The Developer shall assist and cooperate with the City to
accomplish the development of the Project by the Developer in
accordance with the Plan and Specifications, and this Agreement,
and will not violate any laws, ordinances, rules, regulations, orders,
contracts or agreements that are or will be applicable thereto.
4. Subsequent to the Effective Date, the Developer shall maintain its
financial capability to develop, construct and complete the Project
and shall promptly notify the City of any event, condition,
occurrence, or change in its financial condition which adversely
affects, or with the passage of time is likely to adversely affect, the
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Developer's financial capability to successfully and completely
develop, construct and complete the Project as contemplated
hereby.
5. The Developer shall promptly cause to be filed when due all
federal, state, local and foreign tax returns required to be filed by it,
and shall promptly pay when due any tax required thereby.
6. Subject to Section 18.01, the Developer shall maintain its
existence, will not dissolve or substantially dissolve all of its assets
and will not consolidate with or merge into another corporation,
limited partnership, or other entity or permit one or more other
corporations or other entity to consolidate with or merge into it
without the prior approval of the City unless the Developer retains a
controlling interest in the consolidated or merged corporation, and
will promptly notify the City of any changes to the existence or form
of the corporation or any change in the controlling shareholders,
officers or directors of the Developer.
7. Other than sales and assignments contemplated by this
Agreement, the Developer shall not sell, lease, transfer or
otherwise dispose of all or substantially all its assets without
adequate consideration and will otherwise take no action which
shall have the effect, singularly or in the aggregate, of rendering the
Developer unable to continue to observe and perform the
covenants, agreements, and conditions hereof and the
performance of all other obligations required by this Agreement.
8. Except for the removal of any structures, plants, items or other
things from the Project Site necessary for construction of the
Project to commence and continue, the Developer shall not permit,
commit, or suffer any waste or impairment of the Project or the
Project Site prior to the Completion Date.
9. Intentionally Deleted.
10. Provided all conditions precedent thereto have been satisfied or
waived as provided herein, the Developer shall design, construct
and complete the Project such that it is substantially complete as
provided in this Agreement no later than the Project Completion
Date.
ARTICLE 10. REPRESENTATIONS, WARRANTIES AND COVENANTS
OF THE CITY.
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10.01. Representations and Warranties. The City represents and warrants to
the Developer that each of the following statements is currently true and accurate
and agrees that the Developer may rely on each of the following statements:
1. The City is a validly existing body corporate and politic of the State
of Florida, has all requisite corporate power and authority to carry
on its business as now conducted and to perform its obligations
hereunder and under each document or instrument contemplated
by this Agreement to which it is or will be a party.
2. This Agreement and, to the extent such documents presently exist
in a form accepted by the City and the Developer, each document
contemplated or required by this Agreement to which the City is or
will be a party have been duly authorized by all necessary action on
the part of, and have been or will be duly executed and delivered
by, the City, and neither the execution and delivery thereof, nor
compliance with the terms and provisions thereof or hereof (i)
requires the approval and consent of any other party, except such
as have been duly obtained or as are specifically noted herein, (ii)
contravenes any existing law, judgment, governmental rule,
regulation or order applicable to or binding on the City, (iii)
contravenes or results in any breach of, or default under or, other
than as contemplated by this Agreement, results in the creation of
any lien or encumbrance upon any property of the City under any
indenture, mortgage, deed of trust, bank loan or credit agreement,
applicable ordinances, resolutions or, on the date of this
Agreement, any other agreement or instrument to which the City is
a party, specifically including any covenants of any bonds, notes, or
other forms of indebtedness of the City outstanding on the Effective
Date.
3. This Agreement and, to the extent such documents presently exist
in a form accepted by the City and the Developer, each document
contemplated or required by this Agreement to which the City is or
will be a party constitute, or when entered into will constitute, legal,
valid and binding obligations of the City enforceable against the
City in accordance with the terms thereof, except as such
enforceability may be limited by public policy or applicable
bankruptcy, insolvency or similar laws from time to time in effect
which affect creditors' rights generally and subject to usual
equitable principles in the event that equitable remedies are
involved.
10.02. Covenants. The City covenants with the Developer that until the earlier of
the Termination Date or the Expiration Date:
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1. The City shall timely perform, or cause to be performed, all of the
obligations contained herein which are the responsibility of the City to
perform.
2. During each year that this Agreement and the obligations of the
City under this Agreement shall be in effect, the City shall cause to
be executed and to continue to be in effect those instruments,
documents, certificates, permits, licenses and approvals, and shall
cause to occur those events contemplated by this Agreement that
are applicable to and are the responsibility of the City.
3. The City shall assist and cooperate with the Developer to
accomplish the development of the Project in accordance with this
Agreement and the Plans and Specifications, will carry out its
duties and responsibilities contemplated by this Agreement, and will
not violate any laws, ordinances, rules, regulations, orders,
contracts, or agreements that are or will be applicable thereto, and,
to the extent permitted by law, the City will not enact or adopt or
urge or encourage the adoption of any ordinances, resolutions,
rules regulations or orders or approve or enter into any contracts or
agreements, including issuing any bonds, notes, or other forms of
indebtedness, that will result in any provision of this Agreement to
be in violation thereof.
4. Except for the demolition of existing structures on the Project Site
and the removal of objects from the Project Site as contemplated
by this Agreement, the City shall not permit, commit, or suffer any
waste or impairment to the Project Site, nor shall the City request or
recommend any rezoning of the Project Site, or any part thereof,
which will prevent or adversely affect the development of the
Project.
5. The City shall maintain its financial capability to carry out its
responsibilities as contemplated by this Agreement and shall notify
the Developer of any event, condition, occurrence, or change in its
financial condition which adversely affects, or with the passage of
time is likely to adversely affect, the City's financial capability to
carry out its responsibilities contemplated hereby.
ARTICLE 11. CONDITIONS PRECEDENT.
11.01. Construction of Project. Subject to termination of this Agreement
pursuant to Article 12, the obligation of the Developer to commence
construction of the Project on the Commencement Date is subject
to the fulfillment to the satisfaction of, or waiver in writing by, the
Developer of the following conditions:
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1 . The Plans and Specifications that are necessary to commence
construction shall have been approved by the City, and the initial
Building Permit for the commencement of construction of that part
of the Project and all other Permits necessary for construction to
commence have been issued.
2. The vacation of rights-of-way as provided in Section 5.04(1) hereof.
11.02. Responsibilities of the Parties for Conditions Precedent. The parties
hereto shall not, individually or collectively, knowingly, intentionally or negligently
prevent any condition precedent from occurring; provided, however, nothing in
this Section is intended or shall be deemed to deny any party the right to
reasonably exercise its discretion to the extent permitted by law or this
Agreement.
ARTICLE 12. DEFAULT; TERMINATION.
12.01. Project Default by the Developer.
1. There shall be an "event of default" by the Developer pertaining to
the entire Project upon the occurrence of anyone or more of the following:
a. The Developer shall fail to perform or comply with any
material provision of this Agreement applicable to it within
the time prescribed therefor, after receipt of a notice from the
City pursuant to Paragraph 12.01 (2)(a); or
b. The Developer shall make a general assignment for the
benefit of its creditors, or shall admit in writing its inability to
pay its debts as they become due or shall file a petition in
bankruptcy, or shall be adjudicated a bankrupt or insolvent,
or shall file a petition seeking any reorganization,
arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any present or future
statute, law or regulation or shall file an answer admitting, or
shall fail reasonably to contest, the material allegations of a
petition filed against it in any such proceeding, or shall seek
or consent to or acquiesce in the appointment of any trustee,
receiver or liquidator of the Developer or any material part of
such entity's properties; or
c. Within one hundred twenty (120) days after the
commencement of any proceeding by or against the
Developer seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar
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2.
relief under any present or future statute, law or regulation,
such proceeding shall not have been dismissed or otherwise
terminated, or if, within one hundred twenty (120) days after
the appointment without the consent or acquiescence of the
Developer of any trustee, receiver or liquidator of any of
such entities or of any material part of any of such entity's
properties, such appointment shall not have been vacated;
or
a.
If an event of default by the Developer described in
subsection (1) above shall occur, the City shall provide
written notice thereof to the Developer, and, if such event of
default shall not be cured by the Developer within thirty (30)
days after receipt of the written notice from the City
specifying in reasonable detail the event of default by the
Developer, or if such event of default is of such nature that it
cannot be completely cured within such time period, then if
the Developer shall not have commenced to cure such
default within such thirty (30) day period or such default is
not capable of cure or the Developer ceases its good faith
efforts to cure such default then, in addition to any remedy
available under Section 12.05, the City may terminate this
Agreement or pursue any and all legal or equitable remedies
to which the City is entitled.
b. Any attempt by the City to pursue any of the above
referenced remedies will not be deemed an exclusive
election of remedy or waiver of the City's right to pursue any
other remedy to which either may be entitled.
c. Any time periods or deadlines provided in this Agreement
shall be tolled or extended by the amount of time to cure any
event of default hereunder if such event affects the
Developer's or City's ability to perform by such deadline or
the expiration of such period.
3. Subject to the rights of the Project Lender, if the City elects under
Section 6.03 to cure a default under Subsection 12.01(1) by the
Developer, construction contracts, contract documents, building
permits, development permits, management agreements, and
financial commitments (all only to the extent assignable) with
respect to the Project shall, if such default has not been previously
cured, on the day following receipt by the Developer of notice from
the City of its election to cure under Section 6.03, be deemed then
assigned to the City making said election, without necessity of any
other action being taken or not taken by any party hereto. The
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Developer shall transfer and deliver to the City upon making said
election, all assignable Plans and Specifications, working drawings,
construction contracts, contract documents, financial commitments,
management agreements, and all Permits, and, at the direction of
the City, the defaulting the Developer shall vacate the Parcel(s).
4. Notwithstanding any provision of this Section, a default by the
Developer shall not affect the title of any condominium unit or
common area conveyed by the Developer to an unrelated third
party or to a condominium association which is not controlled by the
Developer.
12.02. Default by the City.
1. Provided the Developer is not then in default under Section 12.01,
there shall be an "event of default" by the City under this
Agreement in the event the City shall fail to perform or comply with
any material provision of this Agreement applicable to it; provided,
however, that suspension of or delay in performance by the City
during any period in which the Developer is in default of this
Agreement as provided in Section 12.01 hereof will not constitute
and event of default by the City under this Subsection 12.02.
2.
a.
If an event of default by the City described in 12.02(1) shall
occur, the Developer shall provide written notice thereof to
the City, and, after expiration of the curative period
described in paragraph (b) below, may terminate this
Agreement, institute an action to compel specific
performance of the terms hereof by the City or pursue any
and all legal or equitable remedies to which the Developer is
entitled; provided, however, if the event of default by the City
occurs, any monetary recovery by the Developer in any such
action shall be limited to bona fide third-party out-of-pocket
costs and expenses, including reasonable attorneys' fees,
incurred by the Developer in connection with this Agreement
and the transactions contemplated hereby, unless any such
default by the City was willful and committed in bad faith with
reckless disregard for the rights of the Developer.
c. Any attempt by the Developer to pursue any of the remedies
referred to in paragraphs (a) and (b) above will not be
deemed an exclusive election of remedy or waiver of the
Developer's right to pursue any other remedy to which it
might be entitled.
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d. Any time periods or deadlines provided in this Agreement
shall be tolled or extended by the amount of time to cure any
event of default hereunder if such event affects the
Developer's or City's ability to perform by such deadline or
the expiration of such period.
12.03. Obligations, Rights and Remedies Cumulative. Unless specifically
stated herein to the contrary, the specified rights and remedies to which either
the City or the Developer are entitled under this Agreement are not exclusive and
are intended to be in addition to any other remedies or means of redress to which
the City or the Developer may lawfully be entitled and are not specifically
prohibited by this Agreement. The suspension of, or delay in, the performance of
its obligations by the Developer while the City shall at such time be in default of
their obligations hereunder shall not be deemed to be an "event of default." The
suspension of, or delay in, the performance of the obligations by the City while
the Developer shall at such time be in default of its obligations hereunder shall
not be deemed to be an "event of default" by the City.
12.04. Non-Action on Failure to Observe Provisions of this Agreement. The
failure of the City or the Developer to promptly or continually insist upon strict
performance of any term, covenant, condition or provision of this Agreement, or
any Exhibit hereto, or any other agreement, instrument or document of whatever
form or nature contemplated hereby shall not be deemed a waiver of any right or
remedy that the City or the Developer may have, and shall not be deemed a
waiver of a subsequent default or nonperformance of such term, covenant,
condition or provision.
12.05. Termination.
1. The Developer and the City acknowledge and agree that as of the
Effective Date certain matters mutually agreed by the parties hereto
to be essential to the successful development of the Project have
not been satisfied or are subject to certain conditions, legal
requirements or approvals beyond the control of any of the parties
hereto or which cannot be definitely resolved under this Agreement,
including, but not limited to, failure of a governmental authority to
grant an approval required for development of the Project or
insurable title to the Project Site has not been obtained. In
recognition of these events or conditions, the parties hereto
mutually agree that, provided the appropriate or responsible party
therefor diligently and in good faith seeks to the fullest extent of its
capabilities to cause such event or condition to occur or be
satisfied, the failure of the events or conditions listed in subsection
(2) below to occur or be satisfied shall not constitute an event of
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default by any party under this Article 12, but may, upon the
election of any party hereto, be the basis for a termination of this
Agreement in accordance with this Section.
2. In addition to any other rights of termination provided elsewhere in
this Agreement, this Agreement may be terminated as provided in
subsection (3) of this section by the Developer after the occurrence
of any of the following events or conditions:
a. The appropriate governmental authority (including the City in
exercise of its governmental and regulatory authority and
responsibility), upon petition by the Developer denies or fails
to: issue the necessary order or other action necessary,
vacate right-of-way as described in Section 5.03, issue the
Permits, issue the Building Permits, or approve any other
land use necessary to commence construction of the Project
on the Project Site, provided the Developer has proceeded
diligently, expeditiously and in good faith to obtain such
approval, permits or other necessary actions;
b. A previously unknown site condition is subsequently
discovered and that condition prevents successful
development of the Project, or part of the Project on the
Project Site, or part of the Project Site (in which case only
the Developer at his option can terminate the Project as not
feasible ).
3. Upon the occurrence of an event described in subsection (2) or in
the event that the Developer or the City, after diligently and in good
faith to the fullest extent its capabilities, is unable to cause a
condition precedent to its respective obligations to occur or be
satisfied 1 then the Developer or the City may elect to terminate
this Agreement by giving a notice to the other party hereto within
thirty (30) days of the occurrence of such event or the
determination of inability to cause a condition precedent to occur or
be satisfied, stating its election to terminate this Agreement as a
result thereof, in which case this Agreement shall then terminate.
4. In the event of a termination pursuant to this Section 12.05, neither
the Developer nor the City shall be obligated or liable one to the
other in any way, financially or otherwise, for any claim or matter
arising from or as a result of this Agreement or any actions taken by
the Developer and the City, or any of them, hereunder or
contemplated hereby, and each party shall be responsible for its
own costs, however, the provisions of Sections 9.01 and 10.01
shall apply and shall survive termination of this Agreement, the
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provIsions of this Subsection 12.05(4) to the contrary
notwithstanding.
12.06. Termination Certificate.
1. In the event of a termination of this Agreement for any reason prior
to the Expiration Date, each of the parties hereto do covenant and
agree with each other to promptly execute a certificate prepared by
the party electing to terminate this Agreement, which certificate
shall expressly state that this Agreement has been terminated in
accordance with its terms, is no longer of any force and effect
except for those provisions hereof which expressly survive
termination, that the rights, duties and obligations of the parties
hereto have been terminated and released (subject to those
surviving provisions hereof) and that the Project Site is no longer
subject to any restrictions, limitations or encumbrances imposed by
this Agreement.
2. The certificate described in Subsection (1) shall be prepared in a
form suitable for recording and promptly after execution by all of the
parties hereto shall be recorded in the public records of Pinellas
County, Florida.
ARTICLE 13. RIGHT TO CONTEST.
13.01. Right to Contest. Subject to the conditions set forth in Section 13.02
below, the City or the Developer each may, at its sole discretion and
expense, after prior written notice to the other parties hereto, contest by
appropriate action or proceeding conducted in good faith and with due
diligence, the amount or validity or application, in whole or in part, of any
lien, any payment of any taxes, assessments, impact fees or other public
charges of a similar nature that may from time to time be levied upon or
assessed by any appropriate governmental authority against the
Developer, the Project (or any part thereof), the Project Site, furniture,
fixtures, equipment or other personal property thereon, and the revenues
generated from the use or operation of any or all of the above, any other
payment specifically identified in this Agreement, or compliance with any
law, rule, regulation, or other such legal requirement.
13.02. Conditions. The right to contest any charge, payment or requirement
pursuant to Section 13.01 is subject to the following:
1. Such proceeding shall suspend the execution or enforcement of
such charge, payment or requirement;
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2. Such proceeding will not create any risk of impairment of the
acquisition or preparation of the Project Site, the construction,
completion, operation or use of the Project, the Project Site, or any
part thereof, in any material respect, and neither the Project or
Project Site, nor any part of the Project or the Project Site, would be
subject to any risk of being involuntarily sold, forfeited or lost or the
acquisition of the Project Site or the construction, equipping, or
completion of the Project or any part thereof be delayed or
prohibited;
3. Such proceeding will not subject any other party to criminal liability
or risk of material civil liability for failure to comply therewith, or
involve risk of any material claim against such party; and
4. The party seeking the benefit of this Article shall have furnished to
the other parties such security, if any, as may be required in such
proceeding or as may be reasonably requested by the others, to
protect the Project and the Project Site, and any part thereof, and
any interest of such parties hereunder.
ARTICLE 14. ARBITRATION
14.01. Agreement to Arbitrate. Only as specifically provided in this Agreement
and only if any judicial or administrative action or proceeding has not been
commenced with regard to the same matter and, if so, the party hereto
commencing such action has not dismissed it, any disagreement or
dispute between the parties may be arbitrated in the manner set forth in
this Article 14. All parties hereby agree such arbitration, once commenced,
shall be the exclusive procedure for resolving such disagreement or
dispute and agree to be bound by the result of any such arbitration
proceeding unless all parties mutually agree to terminate such proceeding
prior to decision. If any arbitration proceeding under this part adversely
affects the performance of any party hereunder, then any time periods
provided herein for such performance by that party shall be tolled during
the pendency of the arbitration proceeding affecting such performance.
14.02. Appointment of Arbitrators.
1. a.
Unless accelerated arbitration as provided in Section 14.08
hereof is invoked, any party invoking arbitration herewith
shall, within five (5) days after giving notice of impasse in the
dispute resolution process or upon following the expiration of
the time period for such dispute resolution occurrence of the
event permitting arbitration to be invoked, give written notice
to that effect to the other parties, and shall in such notice
appoint a disinterested person who is on the list of qualified
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arbitrators maintained by the American Arbitration
Association or a disinterested person not on such list to
whom an objection is not made by any other party hereto
within five (5) days of receipt of the notice of such
appointment as the arbitrator or, if more than one (1)
arbitrator is to be appointed, as one of the arbitrators.
b. Within ten (10) days after receipt of the notice described in
paragraph (1), the other parties shall by written notice to the
original party acknowledge that arbitration has been invoked
as permitted by this Agreement, and shall either accept and
approve the appointment of such individual set forth in the
original notice as a sole arbitrator or shall appoint one (1)
disinterested person per party of recognized competence in
such field as an arbitrator.
2.
a.
If two (2) arbitrators are appointed pursuant to subsection (a)
above, the arbitrators thus appointed shall appoint a third
disinterested person who is on the list of qualified arbitrators
maintained by the American Arbitration Association, and
such three (3) arbitrators shall as promptly as possible
determine such matter.
b. If the second arbitrator shall not have been appointed as
provided in subsection (a), the first arbitrator shall, after ten
(10) days notice to the parties, proceed to determine such
matter.
c. If the two (2) arbitrators appointed by the parties pursuant to
subsection (a) shall be unable to agree within fifteen (15)
days after the appointment of the second arbitrator upon the
appointment of a third arbitrator, they shall give written
notice of such failure to agree to the parties, and, if the
parties then fail to agree upon the selection of such third
arbitrator within fifteen (15) days thereafter, then within ten
(10) days thereafter each of the parties upon written notice
to the other parties hereto may request the appointment of a
third arbitrator by the office in or for the State of Florida (or if
more than one office, the office located closest to the City) of
the American Arbitration Association (or any successor
organization thereto), or, in its absence, refusal, failure or
inability to act, request such appointment of such arbitrator
by the United States District Court for the Middle District of
Florida (which request shall be filed in the division of that
court responsible for the geographic area including the City),
or as otherwise provided in Chapter 682, Florida Statutes,
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known and referred to as the Florida Arbitration Act, as
amended.
14.03. General Procedures. In any arbitration proceeding under this part, those
parties appointing arbitrators shall each be fully entitled to present evidence and
argument to the sole arbitrator or panel of arbitrators. The arbitrator or panel of
arbitrators shall only interpret and apply the terms of this Agreement and may not
change any such terms, or deprive any party to this Agreement of any right or
remedy expressed or implied in this Agreement, or award any damages or other
compensation to any party hereto. The arbitration proceedings shall follow the
rules and procedures of the American Arbitration Association (or any successor
organization thereto) unless specifically modified by this Agreement, or as then
agreed to by the parties hereto.
14.04. Majority Rule. In any arbitration proceeding under this part, the
determination of the majority of the panel of arbitrators, or of the sole arbitrator if
only one (1) arbitrator is used, shall be conclusive upon the parties and judgment
upon the same may be entered in any court having jurisdiction thereof. The
arbitrator or panel of arbitrators shall give written notice to the parties stating his
or their determination within thirty (30) days after the conclusion of the hearing or
final submission of all evidence or argument.
14.05. Replacement of Arbitrator. In the event of the failure, refusal or inability
of any arbitrator to serve as such, promptly upon such determination being made
by the affected arbitrator, the affected arbitrator shall give notice to the other two
(2) arbitrators (if applicable) and to the parties hereto, and then a new arbitrator
shall be promptly appointed as a replacement, which appointment shall be made
by the party or the arbitrators who appointed the affected arbitrator in the same
manner as provided for in the original appointment of the affected arbitrator in
Section 14.02 hereof.
14.06. Decision of Arbitrators.
1 . If any decision reached by arbitration as provided in this part
requires performance by the Developer, the Developer covenants
and agrees to comply with any decision of the arbitrator(s) promptly
after the date of receipt by the Developer of such decision, and to
continue such performance to completion with due diligence and in
good faith.
2. If any such decision requires performance by the City, the City
covenants and agrees to comply promptly with any decision
reached by arbitrators) promptly after the date of receipt by the City
of such decision, and to continue such performance to completion
with due diligence and in good faith.
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3. Nothing in this part, nor in any arbitration decision rendered under
this part, shall be construed to require any payment by the City to
the Developer not otherwise provided for herein.
14.07. Expense of Arbitration. The expenses of any arbitration proceeding
pursuant to this part shall be borne equally by the parties to such proceeding,
provided, however, for the purpose of this Section 14.07, "expenses" shall
include the fees and expenses of the arbitrators and the American Arbitration
Association with respect to such proceeding, but shall not include attorneys' fees
or expert witness fees, or any costs incurred by attorneys or expert witnesses,
unless (and to the extent) agreed to by the parties to such proceeding, which in
the absence of such Agreement shall be the responsibility of the party incurring
such fees or costs.
14.08. Accelerated Arbitration.
1.
a.
If any of the parties to any arbitration proceeding under this
part determines the matter for arbitration should be decided
on an expedited basis, then after an initial election to invoke
arbitration pursuant to Section 14.02 hereof has been made,
either party to such proceeding may invoke accelerated
arbitration by giving notice thereof to the other parties no
later than three (3) days after arbitration has been initially
invoked and the other parties do not object within three (3)
days thereafter.
b. Accelerated arbitration, for purposes of this Section 14.08,
shall be accomplished by either party notifying the American
Arbitration Association (or any successor organization
thereto) that the parties have agreed to a single arbitrator,
qualified to decide the matter for arbitration, to be appointed
by the American Arbitration Association (or any successor
organization thereto) with the consent of the parties to such
proceeding within three (3) days after receipt of the request
and to decide such matter within five (5) days after such
appointment.
c. If an arbitrator is not so appointed with consent of the parties
to the proceeding within three (3) days after the notice
referred to in paragraph (2) is received by the American
Arbitration Association, the accelerated proceeding under
this Section 14.08 shall terminate and the procedures
otherwise set forth in this Article 14 shall apply, unless the
parties mutually agree to an extension of such time period.
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2. The Developer and the City hereby agree to use such accelerated
procedure only when reasonably necessary, to not contest the
appointment of the arbitrator or his or her decision except as may
be permitted by law, and that all other provisions of this part, except
as are in conflict with this Section 14.08, remain in effect and
applicable to an accelerated arbitration proceeding.
14.09. Applicable Law. To the extent not inconsistent with this article, any
arbitration proceeding under this article shall be governed by the
provisions of Chapter 682, Florida Statutes, as amended, known and
referred to as the Florida Arbitration Code.
14.10. Arbitration Proceedings and Records. Any arbitration hearing under
this article shall be considered a meeting subject to Section 286.011,
Florida Statutes, and shall be open to any member of the public. Unless
otherwise rendered confidential pursuant to or by the operation of any
applicable law or order (other than an order by a sole arbitrator or a panel
of arbitrators acting under this part), the record of such proceedings shall
be a public record under Chapter 119, Florida Statutes.
ARTICLE 15. UNAVOIDABLE DELAY.
15.01. Unavoidable Delay.
1. Any delay in performance of or inability to perform any obligation
under this Agreement (other than an obligation to pay money) due
to any event or condition described in paragraph (b) as an event of
"Unavoidable Delay" shall be excused in the manner provided in
this Section 15.01.
2. "Unavoidable Delay" means any of the following events or
conditions or any combination thereof: acts of God, litigation which
has the effect of precluding reasonable satisfaction of the
obligations of this Agreement, acts of the public enemy, riot,
insurrection, war, pestilence, archaeological excavations required
by lay, unavailability of materials after timely ordering of same,
epidemics, quarantine restrictions, freight embargoes, fire,
lightning, hurricanes, earthquakes, tornadoes, floods, extremely
abnormal and excessively inclement weather (as indicated by the
records of the local weather bureau for a five-year period preceding
the Effective Date), strikes or labor disturbances, delays due to
proceedings under Chapters 73 and 74, Florida Statutes,
restoration in connection with any of the foregoing, or any other
cause beyond the reasonable control of the party performing the
obligation in question, including, without limitation, such causes as
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may arise from the act of the other party to this Agreement, or acts
of any governmental authority (except that acts of the City shall not
constitute an Unavoidable Delay with respect to performance by the
City).
3. An application by any party hereto (referred to in this paragraph (c)
and in paragraph (d) as the "Applicant") for an extension of time
pursuant to this subsection must be in writing, must set forth in
detail the reasons and causes of delay, and must be filed with the
other party to this Agreement within seven (7) days following the
occurrence of the event or condition causing the Unavoidable Delay
or seven (7) days following the Applicant becoming aware (or with
the exercise of reasonable diligence should have become aware) of
such occurrence.
4. The Applicant shall be entitled to an extension of time for an
Unavoidable Delay only for the number of days of delay due solely
to the occurrence of the event or condition causing such
Unavoidable Delay and only to the extent that any such occurrence
actually delays that party from proceeding with its rights, duties and
obligations under this Agreement affected by such occurrence.
ARTICLE 16. RESTRICTIONS ON USE.
16.01. Project. Prior to the earlier of the Termination Date or the Expiration Date,
no use of the Project, other than as described in Section 2.03, shall be
permitted, other than the operation of improvements existing on the
Effective Date until those improvements are demolished, unless and until
the Developer or the person, if other than the Developer, intending to so
use the Project or Project Site, shall file with the City a request for a
release from the restriction imposed by this Section. The Governing Body
of the City shall promptly consider such request and either deny the
request, approve the request as filed, or approve the request subject to
such terms, conditions and limitations as the City may reasonably require.
Unless specifically requested and approved, a release of the restriction
imposed by this Section shall not release the Developer from any
obligations or restrictions imposed by this Agreement or any agreement,
instrument or document contemplated hereby.
ARTICLE 17. FIRE OR OTHER CASUALTY; CONDEMNATION.
17.01. Loss or Damage to Project.
1. Until the Project Completion Date, and without regard to the extent
or availability of any insurance proceeds, the Developer covenants
and agrees to diligently commence and complete the reconstruction
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or repair of any loss or damage caused by fire or other casualty or if
the same is practicable and economically viable, by eminent
domain (provided the City is not the condemning authority) to each
and every part of the Project on a Parcel which it owns to
substantially the same size, floor area, cubic content and general
appearance as existed prior to the occurrence of such loss or
damage, promptly after the City approves the Plans and
Specifications for such reconstruction or repairs. The Developer
shall have sufficient time to adjust insurance claims and to obtain a
replacement construction loan if the original lender does not make
insurance proceeds available for rebuilding.
2. The City shall review the Plans and Specifications for such
reconstruction or repairs as soon as possible after filing thereof by
the Developer. The City agrees to approve the Plans and
Specifications for such reconstruction or repairs if the
reconstruction or repairs contemplated by such Plans and
Specifications will restore the Project, or the damaged portion
thereof, to substantially the same condition as existed prior to the
occurrence of such loss or damage and if such Plans and
Specifications conform to the applicable laws, ordinances, codes,
and regulations in effect at the time of filing with the City of the
plans and specifications for such reconstruction or repairs.
17.02. Partial Loss or Damage to Project. Until the Project Completion Date,
any loss or damage by fire or other casualty or exercise of eminent domain to the
Project or Project Site, or any portion thereof, which does not render the Project
or Project Site unusable for the use contemplated by Section 2.03 of this
Agreement, shall not operate to terminate this Agreement or to relieve or
discharge the Developer from the timely performance and fulfillment of the
Developer's obligations pursuant to this Agreement, subject to an extension of
time for an Unavoidable Delay, which for this purpose shall include the time
necessary to adjust insurance claims and obtain a replacement construction loan
if the original lender does not make insurance proceeds available for rebuilding.
17.03. Project Insurance Proceeds.
1 . Whenever the Project, or any part thereof, shall have been
damaged or destroyed, the Developer shall promptly make proof of
loss and shall proceed promptly to collect, or cause to be collected,
all valid claims which may have arisen against insurers or others
based upon such damage or destruction.
2. Subject to the rights of a Project Lender, the Developer agrees that
all proceeds of property or casualty insurance received by the
Developer as a result of such loss or damage shall be available and
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shall be used for payment of the costs of the reconstruction or
repair of the Project to the extent necessary to repair or reconstruct
the Project.
17.04. Notice of Loss or Damage to Project. The Developer shall promptly give
the City written notice of any significant damage or destruction to the Project
stating the date on which such damage or destruction occurred, the expectations
of the Developer as to the effect of such damage or destruction on the use of the
Project, and the proposed schedule, if any, for repair or reconstruction of the
Project.
17.05. Condemnation of Project or Project Site; Application of Proceeds. In
the event that part, but not all, of the Project or Project Site, or both, shall be
taken by the exercise of the power of eminent domain at any time before the
Expiration Date, subject to the rights of a Project Lender, the compensation
awarded to and received by the Developer shall be applied first to the restoration
of the Project, provided the Project can be restored and be commercially feasible
for its intended use as contemplated by Section 2. 03( 1) of this Agreement after
the taking, and, if not, can be retained by the Developer.
17.06. Approvals. The provisions of this Article 17 shall be subject to (i) the
ability to obtain the approval of all property owners within the project whose
approval is required, (ii) any lender whose approval is required, as well as (iii)
having received adequate proceeds of insurance to fund redevelopment.
ARTICLE 18. MISCELLANEOUS
18.01. Assignments.
1. Bv the Developer.
a. Prior to the Commencement Date, the Developer may sell,
convey, assign or otherwise dispose of any or all of its right,
title, interest and obligations in and to the Project, or any part
thereof, only with the prior written consent of the City,
provided that such party (hereinafter referred to as the
"assignee"), to the extent of the sale, conveyance,
assignment or other disposition by the Developer to the
assignee, shall be bound by the terms of this Agreement the
same as the Developer for such part of the Project as is
subject to such sale, conveyance, assignment or other
disposition.
b. In connection with any assignment or sale of a portion or all
of the Developer's right, title, interest and obligations in and
to the Project, if the assignee assumes the Developer's
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I-
I
obligations hereunder the Developer shall be released from
liability for the obligations or liabilities by the assignee, and
the City agrees to execute an instrument evidencing such
release, which shall be in recordable form.
c. An assignment of the Project, or any part thereof, by the
Developer to any corporation, limited partnership, general
partnership, or joint venture, in which the Developer is the
general partner or has either the controlling interest or
through a joint venture or other arrangement shares equal
management rights with a financial institution and maintains
such controlling interest or equal management rights shall
not be deemed an assignment or transfer subject to any
restriction on or approvals of assignments or transfers
imposed by this Section 18.01, provided, however, that
notice of such assignment shall be given by the Developer to
the City not less than thirty (30) days prior to such
assignment being effective and the assignee shall be bound
by the terms of this Agreement to the same extent as would
the Developer in the absence of such assignment.
d. No assignee, purchaser, sublessee or acquire of all or any
part of the Developer's rights and obligations with respect to
anyone Parcel shall in any way be obligated or responsible
for any of the Developer's obligations with respect to any
other Parcel by virtue of this Agreement unless and until
such assignee, purchaser, sublessee or acquire has
expressly assumed the Developer's such other obligations.
2. City's Riqht to Assiqn Riahts. The Developer agrees that the City
shall have the unqualified right to assign its rights under Section
5.04 and 6.03 of this Agreement to any person, subject only to
applicable laws in regard to the disposition of an interest in real
property.
18.02. Successors and Assigns. The terms herein contained shall bind and
inure to the benefit of the City, and its successors and assigns, and the
Developer and its successors and assigns, except as may otherwise be
specifically provided herein.
18.03. Notices.
1. All notices, demands, requests for approvals or other
communications given by either party to another shall be in writing,
and shall be sent by registered or certified mail, postage prepaid,
return receipt requested or by courier service, or by hand delivery
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to the office for each party indicated below and addressed as
follows:
To the Developer:
To the City:
Beachwalk Resort, LCC
2905 Bayshore Boulevard, Suite 202
Tampa, FL 34629
Attn: Brian Taub
City of Clearwater
112 S. Osceola Avenue
Clearwater, FL 33756
with copies to:
with copies to:
Jeffrey T. Shear, Esquire
Ruden, McClosky
401 East Jackson Street, Suite 2700
Tampa, FL 33602
Pamela K. Akin, Esquire
Clearwater City Attorney
112 S. Osceola Avenue
Clearwater, FL 33756
2. Notices given by courier service or by hand delivery shall be
effective upon delivery and notices given by mail shall be effective
on the third (3rd) business day after mailing. Refusal by any person
to accept delivery of any notice delivered to the office at the
address indicated above (or as it may be changed) shall be
deemed to have been an effective delivery as provided in this
Section 18.03. The addresses to which notices are to be sent may
be changed from time to time by written notice delivered to the
other parties and such notices shall be effective upon receipt. Until
notice of change of address is received as to any particular party
hereto, all other parties may rely upon the last address given.
18.04. Applicable Law and Construction. The laws of the State of Florida shall
govern the validity, performance and enforcement of this Agreement. This
Agreement has been negotiated by the City and the Developer and the
Agreement, including, without limitation, the Exhibits, shall not be deemed
to have been prepared by the City or the Developer, but by all equally.
18.05. Venue; Submission to Jurisdiction.
1. For purposes of any suit action, or other proceeding arising out of
or relating to this Agreement, the parties hereto do acknowledge,
consent, and agree that venue thereof is Pinellas County, Florida.
2. Each party to this Agreement hereby submits to the jurisdiction of
the State of Florida, Pinellas County and the courts thereof and to
the jurisdiction of the United States District Court for the Middle
District of Florida, for the purposes of any suit, action, or other
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proceeding arising out of or relating to this Agreement and hereby
agrees not to assert by way of a motion as a defense or otherwise
that such action is brought in an inconvenient forum or that the
venue of such action is improper or that the subject matter thereof
may not be enforced in or by such courts.
3. If at any time during the term of this Agreement the Developer is
not a resident of the State of Florida or has no office, employee,
City or general partner thereof available for service of process as a
resident of the State of Florida, or if any permitted assignee thereof
shall be a foreign corporation, partnership or other entity or shall
have no officer, employee, agent, or general partner available for
service of process in the State of Florida, the Developer hereby
designates the Secretary of State, State of Florida, its agent for the
service of process in any court action between it and the City, or
both, arising out of or relating to this Agreement and such service
shall be made as provided by the laws of the State of Florida for
service upon a non- resident; provided, however, that at the time of
service on the Florida Secretary of State, a copy of such service
shall be delivered to the Developer at the address for notices as
provided in 18.03.
18.06. Estoppel Certificates. The Developer and the City shall at any time and
from time to time, upon not less than ten (10) days prior notice by another
party hereto, execute, acknowledge and deliver to the other parties a
statement in recordable form certifying that this Agreement has not been
modified and is in full force and effect (or if there have been modifications
that the said Agreement as modified is in full force and effect and setting
forth a notation of such modifications), and that to the knowledge of such
party, neither it nor any other party is then in default hereof (or if another
party is then in default hereof, stating the nature and details of such
default), it being intended that any such statement delivered pursuant to
this Section 18.06 may be relied upon by any prospective purchaser,
mortgagee, successor, assignee of any mortgage or assignee of the
respective interest in the Project, if any, of any party made in accordance
with the provisions of this Agreement.
18.07. Complete Agreement; Amendments.
1. This Agreement, and all the terms and provisions contained herein,
including without limitation the Exhibits hereto, constitute the full
and complete agreement between the parties hereto to the date
hereof, and supersedes and controls over any and all prior
agreements, understandings, representations, correspondence and
statements, whether written or oral.
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2. Any provision of this Agreement shall be read and applied in pari
materia with all other provisions hereof.
3. This Agreement cannot be changed or revised except by written
amendment signed by all parties hereto.
18.08. Captions. The article and section headings and captions of this
Agreement and the table of contents preceding this Agreement are for
convenience and reference only and in no way define, limit, describe the
scope or intent of this Agreement or any part thereof, or in any way affect
this Agreement or construe any article, section, subsection, paragraph or
provision hereof.
18.09. Holidays. It is hereby agreed and declared that whenever a notice or
performance under the terms of this Agreement is to be made or given on
a Saturday or Sunday or on a legal holiday observed in the City, it shall be
postponed to the next following business day.
18.10. Exhibits. Each Exhibit referred to and attached to this Agreement is an
essential part of this Agreement. The Exhibits and any amendments or
revisions thereto, even if not physically attached hereto shall be treated as
if they are part of this Agreement.
18.11. No Brokers. The City and the Developer hereby represent, agree and
acknowledge that no real estate broker or other person is entitled to claim
or to be paid a commission as a result of the execution and delivery of this
Agreement, including any of the Exhibits, or any proposed improvement,
use, disposition, lease, conveyance or acquisition of any or all of the
Project Site.
18.12. Not an Agent of City. During the term of this Agreement, the Developer
hereunder shall not be an agent of the City with respect to any and all
services to be performed by the Developer (and any of its agents, assigns,
or successors) with respect to the Project.
18.13. Recording of Development Agreement. Pursuant to ~163.3239, Florida
Statutes (2004), the City authorizes and hereby directs the City Clerk to
record this Agreement in the public records of Pinellas County, Florida,
within fourteen (14) days after City Council approval of this Agreement.
The Developer shall pay the cost of such recording. A copy of the
recorded development agreement shall be submitted to the state land
planning agency within fourteen (14) days after the agreement is
recorded.
18.14 Public Purpose. The parties acknowledge and agree that this Agreement
satisfies, fulfills and is pursuant to and for a public purpose and municipal
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purpose and is in the public interest, and is a proper exercise of the City's
power and authority.
18.15. No General Obligation. In no event shall any obligation of the City under
this Agreement be or constitute a general obligation or indebtedness of
the City, or a pledge of the ad valorem taxing power of the City within the
meaning of the Constitution of the State of Florida or any other applicable
laws, but shall be payable solely from legally available revenues and
funds. Neither the Developer nor any other party under or beneficiary of
this Agreement shall ever have the right to compel the exercise of the ad
valorem taxing power of the City or any other governmental entity or
taxation in any form on any real or personal property to pay the City's
obligations or undertakings hereunder.
18.16. Other Requirements of State Law. Nothing in this Agreement shall be
deemed to relieve either party from full compliance with any provision of
State law which is applicable to any of the obligations or under takings
provided for in this Agreement. In the event that this Agreement omits an
obligation to comply with any provision of State law in regard to any of the
obligations or undertakings provided for in this Agreement, it is the
intention of the parties that such applicable State law shall be deemed
incorporated into this Agreement and made a part thereof. In the event
that there is any conflict between the provisions of this Agreement and
applicable State law, it is the intention of the parties that the Agreement
shall be construed to incorporate such provisions of State law and that
such provisions shall control.
18.17. Technical Amendments; Survey Corrections. In the event that due to
minor inaccuracies contained herein or any Exhibit attached hereto or any
other agreement contemplated hereby, or due to changes resulting from
technical matters arising during the term of this Agreement, the parties
agree that amendments to this Agreement required due to such
inaccuracies, unforeseen events or circumstances which do not change
the substance of this Agreement may be made and incorporated herein.
The City Manager is authorized to approve such technical amendments on
behalf of the City, respectively, and is authorized to execute any required
instruments, to make and incorporate such amendment to this Agreement
or any Exhibit attached hereto or any other agreement contemplated
hereby.
18.18. Term; Expiration; Certificate.
1. If not earlier terminated as provided in Section 12.05, this
Agreement shall expire and no longer be of any force and effect on November
18,2014.
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2. Upon completion of the term of this Agreement, all parties hereto
shall execute the Agreement Expiration Certificate. The Agreement
Expiration Certificate shall constitute (and it shall be so provided in
the certificate) a conclusive determination of satisfactory completion
of all obligations hereunder and the expiration of this Agreement.
3. In the event of any dispute as to whether any party is required to
execute the Agreement Expiration Certificate, the dispute shall be
resolved by arbitration as provided in Article 14.
4. The Agreement Expiration Certificate shall be in such form as will
enable it to be recorded in the public records of Pinellas County,
Florida. Following execution by all of the parties hereto, the
Agreement Expiration Certificate shall promptly be recorded by the
Developer in the public records of Pinellas County, Florida and the
Developer shall pay the cost of such recording.
18.19. Approvals Not Unreasonably Withheld. The parties hereto represent
that it is their respective intent as of the Effective Date and do covenant
and agree in the future that all approvals, consents, and reviews will be
undertaken and completed as expeditiously as possible, in good faith, and
will not be arbitrarily or unreasonably withheld, unless otherwise expressly
authorized by the terms of this Agreement.
18.20. Effective Date. As provided by S163.3239, Florida Statutes (2004), this
agreement will become effective after being recorded in the public records
in the county and 30 days after having been received by the state land
planning agency.
IN WITNESS WHEREOF, the parties hereto have set their hands and
their respective seals affixed as of the date set forth in the first paragraph of this
Agreement.
THE CITY OF CLEARWATER,
FLORIDA
Attest:
By:
City Clerk
By:
Mayor
Approved as to form:
Pamela K. Akin
City Attorney
TPA:340249:9
Second Amended Development Agreement
ADOPTED
Page 52
[SIGNATURES CONTINUED ON NEXT PAGE]
STATE OF FLORIDA )
)
COUNTY OF PINELLAS )
The foregoing instrument was acknowledged before me this day
of ,2002 by Brian Aungst and Cynthia Goudeau, Mayor and
City Clerk, respectively, for the City of Clearwater, Florida, on behalf of the City.
By:
Signature of Notary Public
My Commission Expires:
Printed, typed or stamp
[SIGNATURES CONTINUED ON NEXT PAGE]
TPA:340249:9
Second Amended Development Agreement
ADOPTED
Page 53
Beachwalk Resort, LLC, a Florida
limited liability company
By:
Clearwater Beach Resort, LLC, a
Florida limited liability company,
Managing Member
Attest:
By:
By:
Brian Taub, Managing
Member
STATE OF FLORIDA )
)
COUNTY OF PINELLAS )
The foregoing instrument was acknowledged before me this day of
, 2004 by Brian Taub as Managing Member of Clearwater Beach Resort,
LLC, a Florida limited liability company, Managing Member of Beachwalk Resort, LLC,
a Florida limited liability company, on behalf of Beachwalk Resort, LLC.
By:
Signature of Notary Public
My Commission Expires:
Printed, typed or stamp
Exhibit A
CONTROLLED PROPERTY LEGAL DESCRIPTION
A parcel of land lying in Section 8, Township 29, Range 15 East, Pinellas County,
Florida, being more particularly described as follows:
Lot 57, Lot 104, the South 20.00 feet of Lot 56, and the South 20.00 feet of Lot 103 of
the L1oyd-White-Skinner Subdivision, as recorded in Plat Book 13, Page 12, of the public
records of Pinellas County, Florida.
Together with Lot 105, Lot 106, and the North one-half of Lot 107 of the L1oyd-White-
Skinner Subdivision, as recorded in Plat Book 13, Page 12, of the public records of
Pinellas County, Florida.
Together with Lot 58 and Lot 59 of the Uoyd-White-Skinner Subdivision, as recorded in
Plat Book 13, Page 12, of the public records of Pinellas County, Florida.
Exhibit B
Consisting of 22 pages
Seashell Project Description - as det"med in presentations and applications
The properties are developed with The Glass House Motel at 229 South Gulfview Boulevard,
The Beach Place Motel at 301 South Gulfview Boulevard, and a single family house and out
buildings at 300 Coronado Drive abutting the Beach Place Motel and operated under a common
ownership. The proposed project assembles these parcels into a single development site, which
incorporates the vacated Third Street right-of-way. Under the terms of the proposed development
agreement, Gulfview Boulevard is proposed to be rebuilt to the west; this parcel seeks rights to
use the eastern ~ of the vacated Gulfview Boulevard right-of-way.
Surrounding land uses are: Gulfview Boulevard to the west, a single family unit and the Spyglass
Motel to the north, Legends Steakhouse to the south and Coronado Drive to the east. Across
Gulfview Boulevard, there is a public parking lot abutting the Gulf of Mexico.
The existing buildings consist of two hotel which contain 66 units. The existing properties
contain several structures, all of which were built between 1941 and 1956.
Redevelopment is proposed for these obsolete structures. The proposed use is a 250-unit full
service hotel with banquet and meeting rooms, restaurant and retail! beach club facilities, health
club and spa facilities, and a 750-space (min.) parking garage which will serve both hotel uses,
and the general public. The proposed development is the catalyst for the Beach Walk
Improvements outlined in Beach Bv Design. Beach Walk will provide landscaping, pedestrian
and bicycle routes and a limited amount of surface public parking, as well as a relocated
travel way for vehicles. This travelway will be built in a curvilinear design and will include
"traffic calming" features. Public parking will be replaced in the parking garage to be built as
part of the hotel. The public and hotel guests may access the beach by a pedestrian overpass.
TPA:345212:1
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Exhibit E
DECLARATION OF COVENANTS AND RESTRICTIONS
THIS DECLARATION OF COVENANTS AND RESTRICTIONS is made as of the
day of , 2004 by Beachwalk Resort, LLCo
Beachwalk Resort, LLC is the owner of fee simple title to all of the real property
described in Exhibit 1 attached hereto and made a part hereof (hereinafter the "Real Property").
The City of Clearwater has amended its Comprehensive Plan to designate Clearwater Beach as a
Community Redevelopment District pursuant to the Pinellas County Planning Council Rules in
order to implement the provisions of Beach by Design, a preliminary design for the revitalization
of Clearwater Beach.
The designation of Clearwater Beach as a Community Redevelopment District provide for
the allocation of bonus resort units as an incentive for the development of destination quality
resorts with a full complement of resort amenities. Pursuant to the designation of Clearwater
Beach as a Community Redevelopment District, the allocation of bonus resort units is subject to
compliance with a series of performance standards, including a requirement that the resort hotel
to be developed on the Real Property implements a trip generation management program to
reduce the number of vehicle trips generated by the use and operation of the Real Propertyo
The City of Clearwater has granted, by City Commission Resolution passed
and approved on , Beachwalk Resort, LLC's application for an allocation
of bonus resort units pursuant to the provisions of the designation of Clearwater Beach as a
Community Redevelopment Districts subject to compliance with the requirements of the
designation of Clearwater Beach as a Community Redevelopment District. Beachwalk Resort,
LLC desires for itself, and its successors and assigns, as owners to establish certain rights, duties,
obligations and responsibilities with respect to the use and operation of the Real Property in
accordance with the terms and conditions of the allocation of bonus resort units to Clearwater and
the designation of Clearwater Beach as a Community Redevelopment District, which rights,
duties, obligations and responsibilities shall be binding on any and all successors and assigns and
will run with the title to the Real Property.
THEREFORE, in consideration of the covenants and restrictions herein set forth and to be
observed and performed, and in further consideration of the allocation of bonus resort units to
Beachwalk Resort, LLC and other good and valuable consideration, the sufficiency of which is
hereby acknowledged, Beahwalk Resort, LLC hereby declares, covenants and agrees as follows:
1. Benefit and Enforcement. These covenants and restrictions are made for the
benefit of Beachwalk Resort, LLC and its successors and assigns and shall be enforceable by
them and also for the benefit of the residents of the City of Clearwater, Florida and shall be
enforceable on behalf of the said residents by the City Commission of the City of Clearwater.
2. Covenant to Prepare and Implement a Trip Generation Management Program.
Beachwalk Resort, LLC hereby covenants and agrees to the development, use and operation of
the Real Property in accordance with the provisions of this Declaration.
TPA:345813:1
Exhibit E
2.1 Trip Generation Management Program. Beachwalk Resort, LLC shall
prepare a Trip Generation Management Program which includes, at a minimum, the
prograIl). elements which are set out in Exhibit 2 which is attached hereto and incorporated
herein.
2.2 Implementation. Beachwalk Resort, LLC shall take all necessary and
appropriate steps to implement the approved Trip Generation Management Program and
the selected management strategies.
3.
recording.
Effective Date. This Declaration shall become effective immediately upon its
40 Governing Law. This Declaration shall be construed III accordance with and
governed by the laws of the State ofFloridao
5. Recordingo This Declaration shall be recorded in the chain of title of the Real
Property with the Clerk of the Courts of Pin ell as County, Florida.
6. Attorneys Fees. Beachwalk Resort, LLC shall reimburse the City of Clearwater for
any expenses, including attorneys fees, which are incurred by the City of Clearwater in the event
that the City determines that it is necessary and appropriate to seek judicial enforcement of these
Declarations and the City obtains relief, whether by agreement of the parties or through order of
the court.
7. Severability. If any provision, or part thereof, of this Declaration or the application
of this Declaration to any person or circumstance will be or is declared to any extent to be invalid
or unenforceable, the remainder of this Declaration, or the application of such provision or
portion thereof to any person or circumstance, shall not be affected thereby, and each and every
other provision of this Declaration shall be valid and enforceable to the fullest extent permitted by
law.
IN WITNESS WHEREOF, Beachwalk Resort, LLC has caused this Declaration of
Covenants and Restrictions to be executed this day of ,2004.
Signed and sealed and delivered
in the presence of:
Beachwalk Resort, LLC, a Florida limited
liability company
By: Clearwater Beach Resort, LLC, a
Florida limited liability company,
Managing Member
By:
Brian Taub,
Managing Member
TPA:345813:1
Exhibit E
STATE OF FLORIDA )
)
COUNTY OF PINELLAS )
This instrument was acknowledged before me this - day of 2004 by Brian
Taub as Managing Member of Clearwater Seashell Resort, LLC, a Florida limited liability
company, Managing Member of Beachwalk Resort, LLC, a Florida limited liability company, on
behalf of Beachwalk Resort, LLC.
TPA:345813:1
Notary Public
State of Florida
My commission expires:
Exhibit E
EXHIBIT 2
Trip Generation Management Program
1. Prior to issuance of a Certificate of Occupancy for the Seashell Resort, the developer shall
implement a Transportation System Management Plan. This Plan shall establish practices,
procedures and costs/fees for services to reduce the number of trips to and from the site.
Examples of methods, which may be considered are:
a. Guest shuttle services/airport
b. Guest shuttle services/activities
c. Employee shuttle
d. Non-motorized modes for guests
e. Fixed route transit
f. Taxis/demand responsive transit
g. Non-motorized modes for employees
h. Staggered working hours
The plan will address the trip characteristics of resort occupancyo compare and contrast
the generation and reduction methods against non transient units and create a supporting
trip utilization projection for the Beach by Design transit proposal from both hotel visitors
and garage patrons. The plan will apply a best methods approach. City and County
transportation programs may also generate additional methods based on special studies or
intergovernmental program funding (County-wide Gulfview Trolley System).
2. Prior to issuance of a Certificate of Occupancy for the Seashell Resort, the developer shall
submit a Hurricane Evacuation Plan to the City. This Plan shall establish practices and
procedures to be implemented when a hurricane watch is established for Clearwater.
These practices and procedures will lead to evacuation of the Seashell Resort when a
hurricane watch is issued for Clearwater.
TPA:345813:1
EXHIBIT F
COVENANT REGARDING HURRICANE WATCH CLOSURE & USE &
OCCUPANCY OF RESORT HOTEL
DECLARATION OF COVENANTS AND RESTRICTIONS
THIS DECLARATION OF COVENANTS AND RESTRICTIONS
("Declaration") is made as of the day of , 2004, by
Beachwalk Resort, LLC (individually and collectively, "Developer").
Developer is the owner of fee simple title to the real property described in
Schedule 1 attached hereto and made a part hereof (hereinafter, the ("Real
Property"). The City of Clearwater, Florida (the "City"), has amended its
Comprehensive Plan to designate Clearwater Beach as a Community
Redevelopment District pursuant to the Pinellas County Planning Council Rules
in order to implement the provisions of Beach By Design, a plan for the
revitalization of Clearwater Beach.
The designation of Clearwater Beach as a Community Redevelopment
District (the "Designation") provides for the allocation of bonus resort hotel units
("Bonus Units") as an incentive for the development of destination quality hotel
resorts with a full complement of resort amenities. Pursuant to the Designation,
the allocation of Bonus Units is subject to compliance with a series of
performance standards, including a requirement that resorts containing a hotel
developed with Bonus Units ("Hotel") shall be closed and all Hotel guests
evacuated from such resorts as soon as practicable after the National Hurricane
Center posts a hurricane watch that includes Clearwater Beach. The purpose of
such evacuation is to ensure that such a Hotel is evacuated in advance of the
period of time when a hurricane evacuation would be expected in advance of the
approach of hurricane force winds.
The City has granted, by City Council Resolution ,
passed and approved on Developer's application for Bonus Units
pursuant to the Designation, subject to Developer's compliance with the
requirements of the Designation. Developer desires for itself, and its successors
and assigns, as owner, to establish certain rights, duties, obligations and
responsibilities with respect to the use and operation of the Real Property in
accordance with the terms and conditions of the allocation of the Bonus Units to
the City and the Designation, which rights, duties, obligations and responsibilities
shall be binding on any and all successors and assigns and will run with the title
to the Real Property.
THEREFORE, in consideration of the covenants and restrictions herein
set forth and to be observed and performed, and in further consideration of the
allocation of Bonus Units to Developer, and other good and valuable
TPA:345468:1
consideration, the sufficiency of which is hereby acknowledged, Developer
hereby declares, covenants and agrees as follows:
1. Benefit and Enforcement. These covenants and restrictions are
made for the benefit of Developer and its successors and assigns
and shall be enforceable by them and also for the benefit of the
residents of the City and shall be enforceable on behalf of said
residents by the City Council of the City.
2. Covenant of Development. Use and Operation. Developer hereby
covenants and agrees to the development, use, and operation of
the Real Property in accordance with the provisions of this
Declaration.
2.1 Use. The use of the resort on the Real Property is restricted
as follows:
2.1.1 A minimum of two hundred and nine (209) units,
which is the number of hotel units allocated to
DEVELOPER, shall be used solely for transient
occupancy of thirty (30) days or less, must be
licensed as a public lodging establishment and
classified as a hotel, and must be operated by a
single licensed operator of the hotel. No hotel unit
shall be used as a primary or permanent residence.
2.1 02 All other hotel units shall be licensed as a public
lodging establishment, classified as a hotel or resort
condominium with occupancy limited to stays of thirty
(30) days or less. No hotel unit shall be used as a
primary or permanent residence.
2.1.3 As used herein, the terms "transient occupancy,"
"public lodging establishment," "hotel," "resort
condominium," and "operator" shall have the meaning
given to such terms in Chapter 509, Part I, Florida
Statutes (2004).
2.2 Closure of Improvements and Evacuation. The Hotel
developed on the Real Property shall be closed as soon as
practicable upon the issuance of a hurricane watch by the
National Hurricane Center, which hurricane watch includes
Clearwater Beach, and all Hotel guests, visitors and
employees other than emergency and security personnel
required to protect the resort, shall be evacuated from the
Hotel as soon as practicable following the issuance of said
TPA:345468:1
hurricane watch. In the event that the National Hurricane
Center shall modify the terminology employed to warn of the
approach of hurricane force winds, the closure and
evacuation provisions of this Declaration shall be governed
by the level of warning employed by the National Hurricane
Center which precedes the issuance of a forecast of
probable landfall in order to ensure that the guests, visitors
and employees will be evacuated in advance of the issuance
of a forecast of probable landfall.
3 Effective Date. This Declaration shall become effective upon issuance of
all building permits required to build the project of which the Hotel is a part
("Project") and Developer's commencement of construction of the Project,
as evidence by a Notice of Commencement for the Project. This
Declaration shall expire and terminate automatically if and when the
allocation of Bonus Units to the Developer expires or is terminated.
4 GoverninQ Law. This Declaration shall be construed in accordance with
and governed by the laws of the State of Florida.
5 RecordinQ. This Declaration shall be recorded in the chain of title of the
Real Property with the Clerk of the Courts of Pinellas County, Florida.
6 Attornevs' Fees. Developer shall reimburse the City for any expenses,
including reasonable attorneys' fees, which are incurred by the City in the
event that the City determines that it is necessary and appropriate to seek
judicial enforcement of this Declaration and the City obtains relief, whether
by agreement of the parties or through order of a court of competent
jurisdiction.
7 Severabilitv. If any provision, or part thereof, of this Declaration or the
application of this Declaration to any person or circumstance will be or is
declared to any extent to be invalid or unenforceable, the remainder of this
Declaration, or the application of such provision or portion thereof to any
person or circumstance, shall not be affected thereby, and each and every
other provision of this Declaration shall be valid and enforceable to the
fullest extent permitted by law.
[SIGNATURES CONTINUED ON NEXT PAGE]
TPA:345468:1
IN WITNESS WHEREOF, Developer has caused this Declaration to be
executed this , day of 2004.
Signed, sealed and delivered
in the presence of:
BEACHWALK RESORT,
LLC., a Florida limited
liability company
Print Name:
By: Clearwater Beach
Resort, LLC, a
Florida limited
liability company,
Managing Member
Print Name:
By:
Brian Taub
Managing
Member
STATE OF FLORIDA
COUNTY OF PINELLAS
This instrument was acknowledged before me this day of
by Brian Taub, Managing Member of Clearwater Beach Resort,
LLC, a Florida limited liability company, Managing Member of Beachwalk Resort,
LLC, a Florida limited liability company. On behalf of the limited liability company
he is personally known to me or produced as
identification.
Notary Public, State of Florida
My commission expires:
TPA:345468:1
..--l
APPROVALS & PERMIT LIST
. Piling & foundation permit
. Demolition permit
. Site alteration/drainage permit
. Utility relocation permit
. Vacation condition & replat approval
. Building permits package
. -----_.._- 0 -Structural
o Mechanical
o Electrical
o Plumbing
. Beach Improvements permits
o CCCL permit - from Florida Beaches and Shores
o Utility & Drainage permit - with City Engineer & SWFMD approval
o Roadway Permit - approved by City Engineer
o Landscape, Inigation (graywater) & Lighting - approved by Recreation & Parks
o Pedestrian Bridge, Elevated Walk & Beach Elevator Public Service Facility
(building permit)
E:chibit: G
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Exhibit H
Exhibit I
Appraisal Instructions
Typically, an appraisal of this type will use three appraisal methods, separately
assessing Comparable Sales Value, Income Approach, (Net Present Value of
Future Income Stream), and Replacement Cost. Furthermore, a typical appraisal
is to determine fair market value, as defined under Title XI of the Financial
Institutions: Reform, Recovery and Enforcement Act of 1989, 12 CFR Part
323.2.f. This definition is: The most probable price which a property should bring
in a competitive and open market under all conditions requisite to a fair sale, the
..l:?LJY~r f::!rlct~~IIt3Lt3~~.h..actil1gprudently,knQwledge~ably~and..assumingtheprice-is..
not affected by undue stimulus. Implicit in this definition is the consummation of a
sale as of a specified date and the passing of title from seller to buyer under
conditions whereby:
1. Buyer and seller are typically motivated;
2. Both parties are well-informed or well-advised, and acting in
what they consider to be their own best interests;
3. A reasonable time is allowed for exposure to the open
market;
4. Payment is made in terms of cash in U. S. dollars or in terms
of financial arrangements comparable thereto;
5. The price represents the normal consideration for the
property sold unaffected by special or creative financing or
sales concessions granted by anyone associated with the
sale.
There is no known open market with comparable garage sales within the Florida
West Coast market area, which precludes use of the Comparable Sales
Approach to valuation. This public garage is to be held as a commercial
condominium and will form one of the components of a mixed-use project
comprised of a hotel, restaurants, retail, and additional parking used by the other
components. The underlying land is therefore owned by the condominium, and a
determination of the value of the portion of land to be attributed to the public
garage would be subjective, at best. If the appraiser were to assume the garage
were free-standing using a Replacement Cost method, the land would have to be
valued at its Highest and Best Use, which would not be as a parking garage.
Therefore, the Replacement Method is not useful for this. appraisal. The
remaining, the Income Approach, is the only reasonable method for
determination of the transaction value under these conditions.
Therefore, for purposes of calculating the fair market value of the public parking
garage to equal to the projected net operating income to be generated from the
Exhibit I
operation percent (6%), said rate exceeding the City's cost of funds at the
Effective Date of this Agreement.
The projected net operating income shall equal the projected gross revenue
minus the operating expenses. The operating expenses shall equal the owner's
actual cost. incurred if the public parking garage has been operated for a period
of one (1) year, or in the event that the garage has been operated for less than
one (1) years, the owner's budget.
2
Exhibit J
THIS INSTRUMENT PREPARED BY
AND WHEN RECORDED, RETURN TO:
Jeffrey To Shear, Esquire
Ruden, McClosky
401 East Jackson Street, Suite 2700
Tampa, FL 33602
COVENANT OF UNIFIED USE
THIS COVENANT OF UNIFIED USE (the "Agreement") is executed this _ day of
, 2001 (the "Effective Date") by BEACHWALK RESORT, LLC, a Florida limited
liability company ("Owner")o
WITNESSETH
WHEREAS, Owner is the owner of the real property legally described on Exhibit "A" attached
hereto and incorporated herein by reference (the "Property"); and
WHEREAS, Owner and the City of Clearwater (the "City") are parties to that certain
development Agreement dated , 2001 (the "Development Agreement") pursuant to
which the City has agreed that Owner may develop and construct upon the Property a multi-use project
consisting of not less than 750 parking spaces (of which not less than 400 shall be public parking spaces),
up to 50,000 square feet of retail space and 250 residential hotel units, all as more particularly described
in the Development Agreement; and
WHEREAS, Owner has agreed that the Property shall be developed and operated for a unified
use, as more particularly described hereinbelowo
NOW, THEREFORE, in consideration of the sum of Ten Dollars ($10000) and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Owner does hereby
agree that the Property shall be developed and operated as a unified mixed-use project such that the
residential hotel units constructed upon the Property shall be occupied and operated as a single hotel. The
restrictions set forth in the preceding sentence shall survive for a period of ( ) years from
the Effective Date of this Agreement. Nothing in this Agreement shall preclude the purchase and sale of
the residential hotel units and all other components of the mixed use project constructed upon the Property
to separate, unrelated third party owners, so long as the residential hotel units are operated and occupied
as a single hotel throughout the term of this Agreement. Owner agrees that the City shall have the right to
enforce the terms and conditions of this Agreement.
TPA:345820:1
Exhibit J
IN WITNESS WHEREOF, the undersigned has executed this Covenant effective the day and year
first above writteno
Witnesses:
BEACHWALK RESORTS, LLC, a
Florida limited liability company
Print Name:
By:
Clearwater Beach Resort, LLC,
a Florida Limited liability
company, Managing Member
Print Name:
By:
Brian Taub,
Managing Member
STATE OF FLORIDA
COUNTY OF
The foregoing instrument was acknowledged before me this day of February, 2001, by Brian
Taub, as Managing Member of CLEARWATER BEACH RESORTS, LLC, a Florida limited liability
company, Managing Member of BEACHW ALK RESORT, LLC, a Florida limited liability company, on
behalf of the limited liability company, who is personally known to me or has produced
as identification.
NOTARY PUBLIC
Name:
Serial Noo
My Commission expires:
TPA:345820:1
Exhibit K
THIS LICENSE AGREEMENT, made and entered into this day of
2004, by and between the CITY OF CLEARWATER, FLORIDA, a Florida municipal
corporation ("Licensor") and BEACHWALK RESORT, LLC ("Licensee"):
WITNESSETH:
WHEREAS, Licensor is the owner of fee simple title to the area described in
Exhibit A attached hereto and incorporated herein;
WHEREAS, Licensee is the developer of a mixed use resort project on
.Clearwater Beach which will include at least four hundred (400) parking spaces which
will be open to the public;
WHEREAS, in conjunction with the construction of the mixed use resort project
Licensee is constructing an elevated beach access facility between the parking spaces
which will be open to the public and the public beach ("Elevated Beach Access
Facility");
WHEREAS, the support structures for the Elevated Beach Access Facility on the
gulfside of South Gulfview will be improved for the public convenience and benefit with
public beach service improvements ("Beach Service Facility");
WHEREAS, the Elevated Beach Access Facility and Beach Service Facility wilt
be dedicated to the public;
WHEREAS, the City has determined that it is in the best interests of the residents
of the City of Clearwater to have the Beach Service Facility operated by the Licensee;
WHEREAS, the Licensor is willing to grant a license to Licensee to use and
operate the Beach Service Facility for the purposes stated in this agreement;
NOW, THEREFORE IT IS MUTUAllY AGREED, AS FOllOWS:
1. License Granted. The City hereby grants a license to use and operate the
Beach Service Facility.
2. Term. The term of the license is fifty (50) years, beginning on the first (1st) day
that beach service facilities are available for use, and ending on the same day, fifty (50)
years thereafter, unless terminated pursuant to paragraph 3 of this License Agreement;
TPA:345823:1
Exhibit K
3. Termination. The license may be cancelled by the Licensor at any time,
ninety (90) days after providing Licensee written notice that the Beach Service Facility is
not being operated in accordance with the requirements of this License Agreement. The
written notice shall specify each and every way in which the Licensee has failed to
operate the Beach Service Facility in accordance with the requirements of this License
Agreement and the Licensee shall have ninety (90) days to reasonably cure such
failures.
4. Exclusive Riqhts. The Licensee shall have the exclusive right to conduct
the activities described in Exhibit "1 OJ, which is attached hereto and incorporated herein
in or at the Beach Services Facility.
50 Payment for Services. The goods and services provided by Licensor shall
be available to the general public, however, the City agrees that the Licensee may
make special provision for payment of services rendered to the public through the
Licensee's resort or other resort properties on Clearwater Beach.
6. Hours of Operation. The Beach Service Facility shall be open at normal
periods of beach use.
7. Operation and Maintenance. Licensee shall be responsible for the
operation and maintenance of the Beach Service Facility including operation,
maintenance, upkeep, repair and replacement. Licensee shall maintain the Beach
Services Facility in good order, condition and repair, reasonable wear and tear
excepted.
8. Use of the Facilitv. Licensee hereby covenants and agrees to make no
unlawful, improper, or offensive use of the Beach Service Facility. Licensee shall not
permit any person other than Licensee to conduct a business in or from the Beach
Service Facility without the written consent of the Licensor.
9. Assiqnment. Licensee hereby covenants not to assign, pledge,
hypothecate the license created herein, in whole or in part, without the prior written
consent of the Licensor except to the hotel operator for which no consent shall be
required. The paragraph is intended to and shall be construed to include a prohibition
on the assignment of the license by operation of law.
10. Taxes. Licensee shall promptly pay any and all taxes, including but not
limited to state sales taxes, occupation license taxes, beverage license and permit fees
due in regard to the operation and use of the Beach Services Facility, but not ad
valorem taxes or personal property taxes, if any, which shall be paid by Licensor.
-2-
TPA:345823:1
nnl
Exhibit K
11. Utilities. Licensee agrees to be responsible for all costs related to any
utilities provided to the Beach SeNices Facility.
12. Modifications to Structure. Licensee is not authorized to make any material
change to the Beach Services Facility without the written approval of the City.
13. Indemnification. Licensee agrees to indemnify and hold Licensor and its
employees harmless from and against any and all claims, demands, causes of action or
lawsuits of whatever kind or character arising out of this License Agreement and/or
performance hereunder. Licensee agrees to investigate, handles, provide defense for
and defend any such claims, demands, causes of action or lawsuits at its sole expense
and agrees to bear all other costs and expenses related thereto, even if the claim,
demand, cause of action or lawsuit is groundless, false or fraudulent.
14. Insurance. Licensee shall at his own expense purchase and maintain
during the term of this License Agreement the following insurance coverages:
[to be inserted at time of execution]
Licensee shall provide the City with copies of all insurance policies required by this
License Agreement.
15. Destruction of Facility. In the event that the Beach Service Facility is
destroyed, by whatever means, Licensee shall be required to rebuild the Facility in
accordance with the original plans and specifications. The City agrees that any
insurance proceeds received by the City in conjunction with the destruction of the facility
shall be provided to Licensee for use in rebuilding the Facility.
16. Compliance with Government Requlations. Licensee agrees to comply
with the requirements of all agencies of government.
17. Siqnso All signage shall be in conformance with the City of Clearwater's
Land Development Regulations.
18. Costs of Enforcement. In the event that Licensor incurs any cost to
enforce any of the provisions of this License Agreement, including but not limited to
attorneys fees, Licensee agrees to pay said costs.
-3-
TPA:345823: 1
Countersigned:
Mayor
Approved as to form:
City Attorney's Office
TPA:345823:1
Exhibit K
-4-
CITY OF CLEARWATER
By:
City Manager
Attest:
City Clerk
BEACHW ALK RESORT, LLC, a
Florida limited liability company
By: Clearwater Beach Resort,
LLC, a Florida limited
liability company,
Managing Member
By:
Brian Taub,
Managing Member
Exhibit 1
1. Rental of beach towels.
20 The sale of packaged snacks and non-alcoholic beverageso
30 The sale of beach sundrieso
40 The rental of showers and lockers.
Exhibit L
HYATT CLEARWATER BEACH RSORT
BEACH CONCESSION CRITERIA QUALITY STANDARDS
FURNITURE (100)
Chaise lounge
Manufacturer: Tropitone Spinnaker chaise lounge chair with arms (Model # 159932) (if
suitable for beach use)
Otherwise: SteamerIDeck Chair - Canvas
Manufacturer: Harrison & Todd
UMBRELLAS (60)
Aluminum pole
Cast aluminum stand alone bases
Manufacturer: Galtech: Market Umbrella - 9' (or equal)
Sunbrella Fabric (mildew resistantlUV resistant)
CUSTOM BEACH CABANAS -78" X 64" X 64" (40)
Marine grade fabric
SIDE TABLES (25)
Cast Aluminum - 22" round X 17"
Maunfacturer: Tropitone (or equal)
UNIFORMS
Tropical Shirt with Khaki shorts and skirt
White tennis shoes with white ankle socks
EMPLOYEES (2)
Properly groomed hair
Clean shaven or well groomed facial hair
Clean, neat overall appearance
Professional, courteous attitude
KEY ISSUE
Ability to change hotel guests on room account
EXHIBIT M
BEACH WALK IMPROVEMENT SCHEDULE
ITEM DURATION COMPLETION DATE
Complete design and construction plans January 2005
Bid & award construction contract 3 months April 2005
Construct S. Gulfview detour & Coronado 12 months April 2006
Improvements
Construct S. Gulfview & Beach Walk 12 months May 2007
from Central Plaza north to Coronado
Construct S. Gulfview & BeachWalk 12 months June 2008
from Central Plaza to southern end
Final project clean-up & Grand Opening 4 months November 2008
Exhibit N
MINIMUM QUALITY STANDARD
Hotel Quality Standard
Minimum Quality Standards
The Development Agreement ("Agreement") between the City of Clearwater, Florida
(the "City") and Beach Walk Resort, LLC ("Developer") provides for the allocation of two
hundred and nine (209) resort hotel units from the Beach by Design hotel unit pool ("Hotel
Pool") to the site on which the Developer anticipates building the project described in the
Agreement (the "Project Site"), which project is to contain, among other things, 250 hotel units
within a quality resort hotel (the "Hotel"). Beach by Design establishes physical, functional and
operational requirements for a proposed development to be eligible for an allocation of resort
units from the Hotel Pool. The allocation of the resort hotel units to the Project Site represents a
significant economic incentive for the development of the Hotel.
The purpose of this Exhibit is to establish:
1. minimum quality standards for the proposed Hotel;
2. a process for assessing compliance with the minimum quality
standards; and
3. an enforcement mechanism in the event that the Developer
shall fail to comply with the minimum quality standards.
Minimum Quality Standards
The City and the Developer agree that there are three (3) alternative ways in which the
Developer may satisfy the quality requirements of Beach by Design (the "Minimum Quality
Standards"):
1) operation of the Hotel by a branded hotel operator or operation
of the Hotel as a franchised national brand that is generally
regarded as operating or franchising hotels at a standard regarded
as being higher than the minimum standard required of a AM
three diamond or a Mobil 3 star hotel; or
2) membership in (a) the AM and obtaining and maintaining a
minimum quality rating of at least four (4) diamonds; or (b)
Mobile Travel Guide ("MTG") and obtaining and maintaining a
minimum quality rating of at least four (4) stars; or (c) such other
travel marketing and rating service as the City reasonably approves
TPA:345431 :2
l
Exhibit N
"Other Rating Service") and obtaining a quality rating comparable
to the AAA and MTG ratings described in (a) and (b) of this
subparagraph;
or
3) membership in (a) the AAA and obtaining and maintaining a
minimum quality rating of at least three (3) diamonds; or (b)
membership in MTG and obtaining and maintaining a minimum
quality rating of at least three (3) stars, and in addition to (a) or (b),
inclusion in the Hotel of upgraded improvements and facilities as
described hereinafter.
The City agrees that the Developer would satisfy the upgraded improvements and
facilities requirement by providing twenty-five percent (25%) of the total number of AAA four
(4) diamond quality criteria for: i) exterior; ii) public areas; iii) guestrooms; iv) guestroom
amenities; and v) bathroom as described in AAA, Lodging Requirements & Diamond Rating
Guidelines (the most current edition as of the date of issuance of the building permit for the
Hotel).
Alternatively, the City agrees that the Developer may satisfy the upgraded improvements
and facilities requirement by compliance with the following (the "Upgrade Criteria"):
1.
Exterior.
1.
Curb Appeal.
1. A combination of exterior elements which create an impressive well-
integrated and excellent level of curb appeal.
1. Excellent variety of landscaping professionally planned and
maintained.
2. Impressive architectural features well-integrated into the
surrounding area.
2.
Parkingo
1.
Lighting fixtures reflect characteristics of the design of the
property.
2.
Physical evidence of added security exists.
30
Excellent overall illuminationo
TPA:345431 :2
Exhibit N
II. Public Areaso
a. Furnishings and Decor: Upscale, well-appointed, and in the theme of the
property; high degree of comfort, featuring professionally fitted coverings; an
abundant variety of live plants or unique dried floral arrangements.
bo Floor Coverings: Excellent quality carpet, wood, marble, or granite floors with
umque area rugs.
c. Illumination: Light fixtures are well-appointed and of an upscale design that
complements the overall theme of the property; multi-placement provides overall
excellent illumination.
d. Signage: Design is well-defined in harmony with the theme ofthe property.
e. Lobby/Registration Area: Spacious registration area; upgraded luggage carts;
recognizable guest-service area and bellstand.
f. Miscellaneous: Multiple recessed phones with notepads and pens, located away
from traffic areas. Pressing is available at specific timeso
go Restaurant and Dining Facilities: Upscale, full-service restaurant; separate lounge
or bar area.
h. Recreational Facilities:
1. Swimming pool area is well-appointed with upscale design elements and an
excellent quality and variety of pool furniture and hot tub 0 Food and beverage is
available poolside.
J. On-site exercise facility with state of the art equipment; lockers and dressing area
provided.
k. Meeting Rooms. Variety of well-appointed meeting rooms with upscale design
elements. Audiovisual equipment available.
1. Restroomso Upscale facilities appropriate for the number of meeting rooms.
m. Additional Recreational Facilities: Excellent variety of additional recreational
facilities is available on site or arrangements are made for off-site serviceso
n. Sundries and Other Shops: Upscale gift shopo
III. Guestroomo
TPA:345431 :2
I
Exhibit N
a. Free Floor Space: Obvious degree of spaciousness allowing increased ease of
movement for guests.
b. Floor Coverings: Excellent quality carpet, wood, marble, granite or other
high-end stone floors with unique area rugs.
c. Clothes Hanging Space: At least eight open-hook wood hangerso
d. Clothes Storage Space: Sufficient space for two pieces of luggage; upgraded
racks or benches.
e. Illumination: Excellent overall illumination; free standing fixtures in appropriate
places.
fo Television Placement: Television located in closed armoire.
IV. Guestroom Amenities.
1. Multiple or cordless telephone. High-speed internet access. Enhanced
guest- service directory in folder.
2. Upgraded stationery. Framed or beveled full-length mirror.
3. Full-size iron and ironing boardo
4. Minibar.
VI. Bathrooms:
a. Wall and Floor Coverings 0 Excellent quality, including ceramIC tile,
marble, or granite flooring.
b. Free Floor Spaceo Excellent size bathrooms affording guests increased
ease of movement and comfort.
c. Amenities:
1. Excellent quality plush towels; oversizedo
11. Facial tissues of excellent quality in decorative container.
iii. Free-standing hair dryer.
IV. Bathroom area rug.
TP A:345431:2
Exhibit N
Vo Make-up mirror.
VI. Telephone.
Compliance Assessment
Initial Rating Period
As soon as is reasonably possible after the date on which the hotel shall first open for
transient rental business to the public ("Hotel Opening"), the Developer shall apply for
membership and inspection by AAA, MTG or Other Rating Service (the "Hotel Rating
Service"), such that an inspection by the Hotel Rating Service would be reasonably expected to
occur within twelve (12) months following the Hotel Opening ("Initial Inspection Period").
Upon receipt of the report issued by the Hotel Rating Service ("Rating Service Quality Report"),
the Developer shall immediately deliver a copy of the rating report to the Cityo
In the event that the Hotel Rating Service does not or is unable to inspect the Hotel within
the Initial Inspection Period, Developer shall use reasonable diligence to obtain an independent
quality assessment of the Hotel from a qualified hotel/resort industry expert ("Independent
Quality Assessment") within ninety (90) days. In the event that the Developer fails to deliver a
qualified Rating Service Quality Report or a qualified Independent Quality Assessment to the
City within ninety (90) days after the first anniversary of the Hotel Opening, the City may at the
Developer's expense, obtain a written opinion of an independent expert in the hotel/resort
industry ,vith regard to the compliance of the Hotel with the Minimum Quality Standards
established in this Exhibit.
Maintenance and Monitoring of Compliance with Minimum Quality Standards
1. The Developer shall maintain compliance with the Minimum Quality Standards
throughout the term ofthis Agreement.
20 In the event that the initial rating of the Hotel equals four (4) diamonds, four (4)
stars or the equivalent with an Other Rating Service or better, maintenance of such rating
shall constitute full compliance with the Minimum Quality Standards.
3. In the event that the initial rating of the Hotel equals three (3) diamonds, three (3)
stars or the equivalent with an Other Rating Service, and the Developer has included in
the Hotel the required upgraded improvements and facilities as described above, the
maintenance of such rating shall constitute compliance with the Minimum Quality
Standards. On the fifth anniversary of the issuance of the CO, if the most recent Rating
Service Quality Report does not address compliance with the upgraded improvements
and facilities requirement established in this Exhibit (the "Upgrade Requirement"), the
Developer shall obtain a written opinion from a qualified hotel/resort industry expert that
TPA:345431 :2
Exhibit N
the Hotel continues to meet the Upgrade Requirement. If the Developer fails to deliver a
qualified opinion of compliance with the Upgrade Requirement, the City may at the
Developer's cost, obtain a written opinion of an independent expert in the hotel/resort
industry with regard to the compliance of the Hotel with the Upgrade Requirement.
Failure to Complv
In the event that a Rating Service Quality Report, an Independent Quality Assessment or
the opinion of an independent expert in hotel/resort industry reveals that the Hotel does not
comply or no longer complies with the Minimum Quality Standards established in this Exhibit or
the Developer fails to provide the City with a Rating Service Quality Report or an Independent
Quality Assessment or expert opinion, or the Hotel Rating Service that previously rated the Hotel
has given notice stating that such service has downgraded the Hotel's rating to a lower rating
level ("Rating Downgrade Notice"), the City shall notify Developer of default in a writing which
details identifying the nature of the default(s) ("City Quality Default Notice").
If the default(s) described in the City Quality Default Notice are based upon a Rating
Downgrade Notice, Developer shall have that period of time given to Developer by the
downgrading hotel rating service to dispute or effectuate any cure required to restore the Hotel to
the Minimum Quality Standard and to present to the City reasonable evidence that Developer has
either prevailed in its dispute of the default(s) or has effectuated a cure of the conditions upon
which the default is based.
If the City Quality Default Notice is based on any basis provided for in this Exhibit other
than a Rating Downgrade Notice, Developer shall have ten (10) days to notify the City as to
whether the Developer intends to dispute the Default Notice. If the Developer does not notify the
City within ten (10) days of its intent to dispute the Default Notice, the Developer shall have
thirty (30) days to cure the default, or in the event that it is not reasonably possible to cure the
default within thirty (30) days, the Developer shall submit a sworn statement describing the steps
necessary to cure the default and to the time period necessary to cure the default. In the event
that the Developer disputes the Default Notice, the dispute shall be resolved through expedited
arbitration pursuant to the Agreement and in the event that the Developer's dispute is resolved in
favor of the City, the Developer shall then cure the default within thirty (30) days after resolution
ofthe dispute.
In the event that a City Quality Default Notice was based on a failure to maintain
compliance with the Upgrade Requirement, the Developer shall obtain a written opinion from a
qualified hotel/resort industry expert that the Hotel continues to meet the Upgrade Requirement
every two (2) years after the default is cured until the expiration or termination date of the
Agreement.
Notwithstanding anything contained in this Agreement to the contrary, it shall not
be considered a default under this Agreement if Developer if the Developer must make
modifications or take actions to restore the Hotel to the Minimum Quality Standard where such
TPA:345431 :2
Exhibit N
modifications or action to be taken requires the alteration of structural or architectural design
elements of the Project which were approved by the City in connection with the construction of
the Project or where the cost of such modifications or actions, including any debt service
incurred by the Developer in connection therewith, cannot be recovered over the useful life of
the item to be modified, as reasonably determined by the City and the Developer.
Remedies upon Event of Default
Upon the occurrence of an Event of Default which is not cured within thirty (30) days,
Developer shall be subject to a daily fine equal to Two Thousand and Five Hundred Dollars
($2,500.00) payable to the City for each day that the defaults enumerated within the City Quality
Default Notice at issue remain uncured.
In the event that an Event of Default occurs, the accumulated fines shall be a lien against the
Hotel component of the Developer's Property which may, at the City's sole discretion, be enforced
through a foreclosure proceedingo
TP A:345431 :2
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,:;}. ,; ~ .
Michael C. Shindler
Senior Vice President
Hyatt Development Corporation
200 West Madison Street
Chicago, IL 60606 USA
Telephone: 312.750.8022
FAX: 312.750.8237
E-r'iidil: 111shincllc@corphq,hyatt.coll1
November 12, 2004
Mr. Brian N. Taub
Taub Properties, Inc.
2905 Bayshore Blvd., #202
Tampa, FL 33629
Re: Hyatt Clearwater Resort
Dear Brian:
I want to extend my heartiest congratulations on your perseverance in slogging
through our document negotiationso Taub Properties, acting through its
ownership entity, Beachwalk Resort, LLC, and Hyatt Corporation have fully
executed and delivered a set of Management Agreement documents for the
Hyatt Clearwater Resort with Hyatt Corporation, including the Management
Agreement, Technical Services Agreement, and License Agreement, as well as
the Note and Mortgage that evidence a part of Hyatt's capital commitment to the
Hyatt Clearwater Resort. From our end, our execution and delivery of the
documents to you represent the completion of this first phase of our relationship;
no further action on the part of Hyatt is necessary to represent our binding
obligations.
Hyatt is ready to move on to the next steps-completion of design and
specification for the project, your working with your financing partners to firm up
the best possible capital structure, completing condominium and rental program
arrangements, and getting the Project under construction. We stand ready, too,
to provide support and advice regarding your unit sales processo Lastly, we look
forward to the cooperation of the City of Clearwater in approving, designing and
implementing the Beach Walk improvements and enhancing the magnificent
Clearwater Beach.
During this process, I commit to you that I shall remain your principal contact for
all things Hyatt. Naturally, others, including my respected colleague, John
Nicolls, Senior Vice President for Architecture and Design for Hyatt, will take the
lead in certain aspects, but I am a single point of entry for you into Hyatt. My
colleague, Marc Sallette, who met you even before I did and has been involved in
our analysis of this project from its inception, will continue to work with me and
represent Hyatt during those times when I am otherwise engagedo
, .
Mr. Brian N. Taub
November 12, 2004
Page 2
With the full support of Hyatt's Development Committee and Board of Directors,
we are extremely excited about, and look forward to working with you, in this
project, Hyatt's first condominium-hotel project. Let's hope the negotiations
represented the hard part of our relationship.
With kind regards,
Jt;~
cc: John Nicolls
Marc Sallette
Matthew J. Cae
Andrew Robins
Ct~ - \
10. I
City Council
<<<<<<<<~<g<~nd<!!<<...~.~.~<~.~<<.<<M~~<~_~ra~.~..~.~<<".
Tracking Number: 981
Actual Date: 12/02/2004
Subject / Recommendation:
Adopt Ordinance No. 7344-04 on second reading, annexing certain real property whose Post
Office address is 1705 Thomas Drive in to the corporate limits of the city, and redefining the
boundary lines of the city to include said addition.
Originating: City Attorney
Section Second Readings - public hearing
Category: Second Reading
Public Hearing: Yes
Advertised Dates: 11/07/2004
11/21/2004
Financial Information:
Review Approval
Pam Akin
11-08-2004 08:02:05
Cvndie Goudeau
11-12-2004 11 :22:51
~
ORDINANCE NO. 7344-04
AN ORDINANCE OF THE CITY OF CLEARWATER, FLORIDA,
ANNEXING CERTAIN REAL PROPERTY LOCATED ON THE
EAST SIDE OF THOMAS DRIVE APPROXIMATELY 150 FEET
NORTH OF STATE ROAD 590, CONSISTING OF LOTS 28 AND
29, BLOCK 4, VIRGINIA GROVE TERRACE SECOND ADDITION,
TOGETHER WITH THE ABUTTING RIGHT OF WAY TO S.R. 590,
WHOSE POST OFFICE ADDRESS IS 1705 THOMAS DRIVE,
INTO THE CORPORATE LIMITS OF THE CITY, AND
REDEFINING THE BOUNDARY LINES OF THE CITY TO
INCLUDE SAID ADDITION; PROVIDING AN EFFECTIVE DATE.
WHEREAS, the owner of the real property described herein and depicted on the map
attached hereto as Exhibit A has petitioned the City of Clearwater to annex the property into the
City pursuant to Section 171.044, Florida Statutes, and the City has complied with all applicable
requirements of Florida law in connection with this ordinance; now, therefore,
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
CLEARWATER, FLORIDA:
Section 1. The following-described property is hereby annexed into the City of Clearwater
and the boundary lines of the City are redefined accordingly:
Lots 28 and 29, Block 4, Virginia Grove Terrace Second Addition, as recorded in
Plat Book 37, Page 73, Public Records of Pinellas County, Florida, together with
the abutting right of way south to S.R. 590
(ANX2004-07010)
Section 2. The provisions of this ordinance are found and determined to be consistent
with the City of Clearwater Comprehensive Plan. The City Council hereby accepts the dedication
of all easements, parks, rights-of-way and other dedications to the public, which have heretofore
been made by plat, deed or user within the annexed property. The City Engineer, the City Clerk
and the Planning Director are directed to include and show the property described herein upon the
official maps and records of the Cityo
Section 3. This ordinance shall take effect immediately upon adoption. The City Clerk
shall file certified copies of this ordinance, including the map attached hereto, with the Clerk of the
Circuit Court and with the County Administrator of Pinellas County, Florida, within 7 days after
adoption, and shall file a certified copy with the Florida Department of State within 30 days after
adoption.
PASSED ON FIRST READING
PASSED ON SECOND AND FINAL
READING AND ADOPTED
Brian J. Aungst
Mayor
Approved as to form:
Attest:
Leslie K. Dougall-Sides
Assistant City Attorney
Cynthia E. Goudeau
City Clerk
Ordinance No. 7344-04
City Council
m"~g<~nm~m~'"<'<~ov~ M~I!IQ,~~<~<~ u m,,"@@W~~_'
Tracking Number: 982
Actual Date: 12/02/2004
Subject / Recommendation:
Adopt Ordinance No. 7345-04 on second reading, amending the future land use plan of the City
to designate the land use for certain real property whose Post Office address is 1705 Thomas
Drive, upon annexation into the City of Clearwater, as Residential Low.
Originating: City Attorney
Section Second Readings - public hearing
Category: Second Reading
Public Hearing: Yes
Advertised Dates: 11/07/2004
11/21/2004
Financial Information:
Review Approval
Pam Akin
11-08-2004 09:03:50
Cvndie Goudeau
11-12-2004 11 :23:39
~A-z..
I (< -2.
ORDINANCE NO. 7345-04
AN ORDINANCE OF THE CITY OF CLEARWATER, FLORIDA,
AMENDING THE FUTURE LAND USE PLAN ELEMENT OF THE
COMPREHENSIVE PLAN OF THE CITY, TO DESIGNATE THE
LAND USE FOR CERTAIN REAL PROPERTY LOCATED ON THE
EAST SIDE OF THOMAS DRIVE APPROXIMATELY 150 FEET
NORTH OF STATE ROAD 590, CONSISTING OF LOTS 28 AND
29, BLOCK 4, VIRGINIA GROVE TERRACE SECOND ADDITION,
TOGETHER WITH THE ABUTTING RIGHT OF WAY TO S.R. 590,
WHOSE POST OFFICE ADDRESS IS 1705 THOMAS DRIVE,
UPON ANNEXATION INTO THE CITY OF CLEARWATER, AS
RESIDENTIAL LOW; PROVIDING AN EFFECTIVE DATE.
WHEREAS, the amendment to the future land use plan element of the comprehensive
plan of the City as set forth in this ordinance is found to be reasonable, proper and appropriate,
and is consistent with the City's comprehensive plan; now, therefore,
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
CLEARWATER, FLORIDA:
Section 1. The future land use plan element of the comprehensive plan of the City of
Clearwater is amended by designating the land use category for the hereinafter described
property, upon annexation into the City of Clearwater, as follows:
Property
Lots 28 and 29, Block 4, Virginia Grove Terrace
Second Addition, as recorded in Plat Book 37, Page 73,
Public Records of Pinellas County, Florida, together
with the abutting right of way south to S.R. 590
(ANX2004-07010)
Land Use Cateaorv
Residential Low
Section 2. The City Council does hereby certify that this ordinance is consistent with
the City's comprehensive piano
Section 3. This ordinance shall take effect immediately upon adoption, contingent upon
and subject to the adoption of Ordinance No. 7344-04.
PASSED ON FIRST READING
PASSED ON SECOND AND FINAL
READING AND ADOPTED
Brian J. Aungst
Mayor
Approved as to form:
Attest:
Leslie K. Dougall-Sides
Assistant City Attorney
Cynthia E. Goudeau
City Clerk
Ordinance No. 7345-04
CI~ --3
City Council
"~g~~~~~"",~Q~~!~!'1~I!!<Q,!:~~"~_~,~__"_"_"~~,,,,
10.3
Tracking Number: 983
Actual Date: 12/02/2004
Subject / Recommendation:
ADOPT Ordinance No. 7346-04 on second reading, amending the zoning atlas of the City by
zoning certain real property whose Post Office address is 1705 Thomas Drive, upon annexation
into the City of Clearwater, as Low Medium Density Residential (LMDR).
Originating: City Attorney
Section Second Readings - publiC hearing
Category: Second Reading
Public Hearing: Yes
Advertised Dates: 11/07/2004
11/21/2004
Financial Information:
Review Approval
Pam Akin
11-08-2004 09:04:26
Cvndie Goudeau
11-12-2004 11:24:28
ORDINANCE NO. 7346-04
AN ORDINANCE OF THE CITY OF CLEARWATER, FLORIDA,
AMENDING THE ZONING ATLAS OF THE CITY BY ZONING
CERTAIN REAL PROPERTY LOCATED ON THE EAST SIDE OF
THOMAS DRIVE APPROXIMATELY 150 FEET NORTH OF
STATE ROAD 590, CONSISTING OF LOTS 28 AND 29, BLOCK 4,
VIRGINIA GROVE TERRACE SECOND ADDITION, TOGETHER
WITH THE ABUTTING RIGHT OF WAY TO S.R. 590, WHOSE
POST OFFICE ADDRESS IS 1705 THOMAS DRIVE, UPON
ANNEXATION INTO THE CITY OF CLEARWATER, AS LOW
MEDIUM DENSITY RESIDENTIAL (LMDR); PROVIDING AN
EFFECTIVE DATE.
WHEREAS, the assignment of a zoning district classification as set forth in this ordinance
is found to be reasonable, proper and appropriate, and is consistent with the City's comprehensive
plan; now, therefore,
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
CLEARWATER, FLORIDA:
Section 1. The following described property located in Pinellas County, Florida, is hereby
zoned as indicated upon annexation into the City of Clearwater, and the zoning atlas of the City is
amended, as follows:
Pro pe rtv
Lots 28 and 29, Block 4, Virginia Grove Terrace
Second Addition, as recorded in Plat Book 37, Page
73, Public Records of Pinellas County, Florida,
together with the abutting right of way south to S.R. 590
(ANX2004-07010)
Zonina District
Low Medium Density
Residential (LMDR)
Section 2. The City Engineer is directed to revise the zoning atlas of the City in
accordance with the foregoing amendment.
Section 3. This ordinance shall take effect immediately upon adoption, contingent upon
and subject to the adoption of Ordinance No. 7344-04.
PASSED ON FIRST READING
PASSED ON SECOND AND FINAL
READING AND ADOPTED
Brian Jo Aungst
Mayor
Approved as to form:
Attest:
Cynthia E. Goudeau
City Clerk
Leslie K. Dougall-Sides
Assistant City Attorney
Ordinance Noo 7346-04
City Council
,,<~~~gN~"!I~~a C.~.~.~._rJ~1 err!.,Q..r!~,!!<!!<<rr!~.
Tracking Number: 990
Actual Date: 12/02/2004
Subject / Recommendation:
ADOPT Ordinance No. 7366-04 on second reading, providing for the issuance of gas system
subordinate revenue obligation, as subordinate obligations of the City pursuant to the City's
Ordinance No. 5118-91, to acquire or purchase, directly or indirectly, gas supply and/or gas
production facilities or interest therein; pledging the net revenues of the system to secure
payment of the principal and interest on the subordinate obligations, providing for the rights of
the subordinate holders of such obligations; and providing for payment thereof.
Originating: City Attorney
Section Second Readings - public hearing
Category: Second Reading
Public Hearing: Yes
Advertised Dates: 11/07/2004
11/21/2004
Financial Information:
Review ARQroval
Pam Akin
11-09- 2004
10: 16:07
Cvndie Goudeau
14: 16:26
11-22-2004
c,~.- ~
10.0\
i:r: Cf\~l
J:.l: 160'-"\
ORDINANCE NO. 7366-04
AN ORDINANCE PROVIDING FOR THE ISSUANCE OF GAS
SYSTEM SUBORDINATE REVENUE OBLIGATIONS, AS
SUBORDINATE OBLIGATIONS OF THE CITY PURSUANT TO
THE CITY'S ORDINANCE NO. 5118-91, TO ACQUIRE OR
PURCHASE, DIRECTLY OR INDIRECTLY, GAS SUPPLY AND/OR
GAS PRODUCTION FACILITIES OR INTEREST THEREIN;
PLEDGING THE NET REVENUES OF THE SYSTEM TO SECURE
PAYMENT OF THE PRINCIPAL OF AND INTEREST ON THE
SUBORDINATE OBLIGATIONS IN ACCORDANCE WITH
ORDINANCE NO. 5118-91; PROVIDING FOR THE RIGHTS OF
THE SUBORDINATE HOLDERS OF SUCH OBLIGATIONS;
PROVIDING FOR THE PAYMENT THEREOF; MAKING CERTAIN
OTHER COVENANTS AND AGREEMENTS IN CONNECTION
THEREWITH; PROVIDING CERTAIN OTHER MA TIERS IN
CONNECTION THEREWITH; AND PROVIDING AN EFFECTIVE
DATE.
BE IT ENACTED BY THE CITY COUNCIL OF THE CITY OF CLEARWATER, FLORIDA, as
follows:
SECTION 1. AUTHORITY FOR THIS ORDINANCE: ORDINANCE TO BE
SUPPLEMENTAL. This Ordinance is enacted pursuant to the provisions of Chapter 166, Part II,
Florida Statutes, and other applicable provisions of law (the "Act") and Ordinance No. 5118-91, as
amended and supplemented (the "Original Ordinance"). This Ordinance is supplemental to the
Original Ordinance and all provisions of the Original Ordinance not supplemented, modified,
superseded or repealed by the provisions hereof shall (a) remain in full force and effect, (b) apply to
the Subordinate Obligations herein authorized, and (c) are incorporated herein by reference as if
fully set forth.
SECTION 2. DEFINITIONS. Unless the context otherwise requires, the terms defined in
this Ordinance shall have the meanings specified in this section, and any capitalized terms not
defined herein shall have the meanings specified in Section 2 of the Original Ordinance. Words
importing singular number shall include the plural number in each case and vice versa, and words
importing persons shall include firms and corporations.
"Additional Subordinate Obligations" shall mean additional subordinate obligations issued
in compliance with the terms, conditions and limitations contained in the Original Ordinance and in
this Ordinance and which (i) shall have a lien on the Pledged Revenues subordinate to that of the
Bonds outstanding from time to time but on a parity with other Subordinate Obligations
1 Ordinance No. 7366-04
outstanding, (ii) shall be payable from the Net Revenues subordinate to the Bonds but on a parity
with other Subordinate Obligations outstanding.
"Financial Instruments" shall mean an agreement entered into with respect to the purchase
or pricing of gas or other services provided under or as further described in a Gas Supply
Agreement, the purpose of which is to provide a hedge or other financial control of the price or
costs of gas to be supplied to the System over a period of time.
"Gas Supply Agreement" shall mean one or more agreements entered into from time to
time, pursuant to which the City, through the System, acquires an interest in, directly or indirectly, a
designated future supply of natural gas or natural gas production facilities, and may, but shall not
be required to, include one or more Financial Instruments.
"Issuer" shall mean the City of Clearwater, Florida.
"Reserve Requirement" for each series of Subordinate Obligations shall be as determined by
subsequent resolution of the Issuer. Unless otherwise specified, a series of Subordinate Obligations
shall not be subject to a Reserve Requirement. If a subsequent resolution imposes a Reserve
Requirement for a series of Subordinate Obligations, such Reserve Requirement shall not be in
excess of the lesser of (i) the Maximum Bond Service Requirement of the Subordinate Obligations,
(ii) 125% of the average annual Bond Service Requirement of the Subordinate Obligations, or (iii)
10% of the net proceeds of the Subordinate Obligations.
"Subordinate Holder" shall mean any person who shall be the holder of any registered
Subordinate Obligations or counterparty to a Gas Supply Agreement, as shown on the books and
records of the System. The Issuer may deem and treat the person in whose name any Subordinate
Obligation is registered as the absolute owner thereof for the purpose of receiving payment of, or on
account of, the principal or redemption price thereof and interest due thereon, and for all other
purposes.
"System" shall mean the complete gas system now owned, operated and maintained by the
Issuer, together with any and all assets, improvements, extensions and additions thereto hereafter
constructed or acquired.
SECTION 3. FINDINGS. It is hereby found, determined and declared that:
(A) The Issuer has heretofore enacted the Original Ordinance authorizing the issuance of
certain obligations to be secured by and payable from the Net Revenues, and providing for the
issuance of other obligations, upon the conditions set forth therein, to be payable from such Net
Revenues, which obligations shall be junior and subordinate in all respects to the Bonds outstanding
from time to time, as to lien on and source and security for payment from such Net Revenues.
2
Ordinance Noo 7366-04
(B) The costs associated with the issuance of the Subordinate Obligation shall be deemed to
include legal expenses, fiscal expenses, rating agency fees, expenses for estimates of costs and of
revenues, accounting expenses, fees of financial advisors, accrued and capitalized interest,
provisions for reserves, and such other expenses as may be necessary or incidental for the financing
herein authorized.
(C) The Revenues are not pledged or encumbered in any manner except for the prior
payment from the Net Revenues of the principal of and interest on the Bonds outstanding from time
to time.
(D) The principal of and interest on the Subordinate Obligation and all required Sinking
Fund, Reserve and other payments shall be payable solely from the Net Revenues derived from the
operation of the System, as provided herein and in the Original Ordinance. The Subordinate
Obligations shall not constitute an indebtedness, liability, general or moral obligation, or a pledge of
the faith, credit or taxing power of the Issuer, the State, or any political subdivision thereof, within
the meaning of any constitutional, statutory or charter provisions. Neither the State of Florida, nor
any political subdivision thereof, nor the Issuer shall be obligated (1) to levy ad valorem taxes on
any property to pay the principal of the Subordinate Obligation, the interest thereon, or other costs
incidental thereto or (2) to pay the same from any other funds of the Issuer except from the Net
Revenues, in the manner provided herein and in the Original Ordinance.
The Subordinate Obligation shall not constitute a lien upon the System, or any part thereof,
or on any other property of the Issuer, but shall constitute a subordinate lien only on the Net
Revenues in the manner provided herein and in the Original Ordinance, junior and subordinate to
the lien thereon in favor of the Bonds outstanding from time to time.
(G) The estimated Net Revenues to be derived from the operation of the System will be
sufficient to pay all principal of and interest on the Subordinate Obligation and the Outstanding
Bonds, as the same become due, and to make all required Sinking Fund, Reserve and other
payments required by this Ordinance and the Original Ordinance.
(H) The Original Ordinance, in Section 16(S) thereof, provides for the issuance of additional
obligations under the terms, limitations and conditions provided therein.
(I) The Issuer has complied with the terms, conditions and restrictions contained in the
Original Ordinance. The Issuer is, therefore, legally entitled to issue the Subordinate Obligation as
additional obligations within the authorization contained in the Original Ordinance.
0) The Subordinate Obligation herein authorized shall be junior and subordinate in all
respects to the Bonds outstanding from time to time, as to lien on and source and security for
payment from such Net Revenues.
3
Ordinance Noo 7366-04
SECTION 4. THE ORDINANCE TO CONSTITUTE CONTRACT. In consideration of the
acceptance of the Subordinate Obligation authorized to be issued hereunder by those who shall
hold the same from time to time, this Ordinance and the Original Ordinance shall be deemed to be
and shall constitute a contract between the Issuer and such Subordinate Holders. The covenants
and agreements herein set forth to be performed by the Issuer shall be for the equal benefit,
protection and security of the legal Subordinate Holders of any and all of the Bonds, all of which
shall be of equal rank and without preference, priority or distinction of any of the Bonds over any
other thereof, except as expressly provided therein and herein.
SECTION 5. AUTHORIZATION OF SUBORDINATE OBLIGATIONS. Subject and
pursuant to the provisions hereof, Subordinate Obligation are authorized to be issued from time to
time through the execution and delivery of a Gas Supply Agreement or otherwise in such form as
may be specified in a subsequent resolution of the Issuer adopted prior to the issuance of such
Subordinate Obligation (i) finance the acquisition or purchase, indirectly or directly, of gas supply
and gas production facilities; (H) make a deposit to the Reserve Account in the Sinking Fund to
satisfy the Reserve Requirement (or to purchase a debt service reserve fund policy or surety, as
determined by resolution of the Issuer adopted prior to the issuance of any series of Subordinate
Obligation) and (Hi) pay the costs of issuance of the Subordinate Obligation.
SECTION 6. DESCRIPTION OF SUBORDINATE OBLIGATION. Each Subordinate
Obligation shall be as described in a Gas Supply Agreement approved by the Issuer from time to
time, or as otherwise may be approved by subsequent resolution of the Issuer adopted prior to the
incurrence of a Subordinate Obligation.
SECTION 7. EXECUTION OF SUBORDINATE OBLIGATIONS AND FINANCIAL
INSTRUMENTS. Subordinate Obligations shall be executed in the name of the Issuer by its City
Manager and Mayor, attested by the City Clerk and approved as to form by the City Attorney, and
its official seal or a facsimile thereof shall be affixed thereto or reproduced thereon. Financial
Instruments shall be approved as to form by the City Attorney of the Issuer, and shall be executed
by the Issuer by the City Manager and the Mayor, and attested by the City Clerk. In case any officer
whose signature shall appear on any Subordinate Obligation or Financial Instrument shall cease to
be such officer before the delivery of such Financial Instrument, such signature or facsimile shall
nevertheless be valid and sufficient for all purposes the same as if he had remained in office until
such delivery. Any Subordinate Obligation or Financial Instrument may be signed and sealed on
behalf of the Issuer by such person who at the actual time of the execution of such Subordinate
Obligation or Financial Instrument shall hold the proper office with the Issuer, although at the date
of enactment of this Ordinance such person may not have held such office or may not have been so
authorized.
SECTION 8. APPLICATION OF PROVISIONS OF ORIGINAL ORDINANCE. The
Subordinate Obligations and Financial Instruments herein authorized, shall for all purposes (except
as herein expressly provided) be considered to be subordinate obligations issued under the
4 Ordinance Noo 7366-04
authority of the Original Ordinance, and shall be entitled to all the protection and security provided
therein for the Subordinate Obligation, and shall be in all respects entitled to the same security,
rights and privileges enjoyed by the Subordinate Obligation.
The covenants and pledges contained in the Original Ordinance shall be applicable to the
Subordinate Obligation herein authorized. The principal of and interest on the Subordinate
Obligation shall be payable from the Sinking Fund established in the Original Ordinance on a parity
with the Subordinate Obligation, and payments shall be made into such Sinking Fund by the Issuer
in amounts fully sufficient to pay the principal of and interest on the Subordinate Obligation and
the Subordinate Obligation as such principal and interest become due.
SECTION 9. APPLICATION OF SUBORDINATE OBLIGATION PROCEEDS. The
proceeds, including accrued interest and premium, if any, received from or deemed to be received
as a result of the undertaking of a Subordinate Obligation shall be applied by the Issuer in
accordance with the respective Gas Supply Agreement, Financial Instrument or as otherwise
provided by subsequent resolution adopted by the Issuer prior to the incurrence of such
Subordinate Obligation.
SECTION 10. SPECIAL OBLIGATIONS OF ISSUER. The Subordinate Obligation shall be
special obligations of the Issuer, payable solely from the Net Revenues as herein provided. The
Subordinate Obligations do not constitute an indebtedness, liability, general or moral obligation, or
a pledge of the faith, credit or taxing power of the Issuer, the State of Florida or any political
subdivision thereof, within the meaning of any constitutional, statutory or charter provisions.
Neither the State of Florida nor any political subdivision thereof nor the Issuer shall be obligated (1)
to levy ad valorem taxes on any property to pay the principal of the Subordinate Obligation, the
interest thereon or other costs incident thereto, or (2) to pay the same from any other funds of the
Issuer except from the Net Revenues, in the manner provided herein. The acceptance of the
Subordinate Obligation by the Subordinate Holders from time to time thereof shall be deemed an
agreement between the Issuer and such Subordinate Holders that the Subordinate Obligation and
the indebtedness evidenced thereby shall not constitute a lien upon the System, or any part thereof,
or any other property of the Issuer, but shall constitute a subordinate and junior lien only on the Net
Revenues, in the manner hereinafter provided. The Net Revenues shall be immediately subject to
the lien of this pledge without any physical delivery thereof or further act, and the lien of this
pledge shall be valid and binding as against all parties having claims of any kind in tort, contract or
otherwise against the Issuer.
The payment of the principal of and the interest on the Subordinate Obligation shall be
secured forthwith by an irrevocable lien on the Net Revenues of the System, as defined herein,
junior and subordinate with the Outstanding Bonds and the Issuer does hereby irrevocably pledge
such Net Revenues of the System to the payment of the principal of and the interest on thecSubordinate Obligation, for the reserves therefor and for all other required payments.
5
Ordinance No. 7366-04
SECTION 11. COVENANTS OF THE ISSUER. The provisions of Section 16 of the Original
Ordinance shall be deemed applicable to this Ordinance and shall apply to the Subordinate
Obligations issued pursuant to this Ordinance as though fully restated herein.
SECTION 12. AMENDING AND SUPPLEMENTING OF ORDINANCE WITHOUT
CONSENT OF SUBORDINATE HOLDERS. The provisions of Section 17 of the Original Ordinance
shall be deemed applicable to this Ordinance and shall apply to the Subordinate Obligations issued
pursuant to this Ordinance as though fully restated herein.
SECTION 13. AMENDMENT OF ORDINANCE WITH CONSENT OF SUBORDINATE
HOLDERS OF SUBORDINATE OBLIGATION. The provisions of Section 18 of the Original
Ordinance shall be deemed applicable to this Ordinance and shall apply to the Subordinate
Obligation issued pursuant to this Ordinance as though fully restated herein.
SECTION 14. DEFEASANCE. The provisions of Section 19 of the Original Ordinance shall
be deemed applicable to this Ordinance and shall apply to the Subordinate Obligations issued
pursuant to this Ordinance as though fully restated herein.
SECTION 15. TAX COVENANTS. To the extent any Subordinate Obligation is issued on a
basis that the interest portion to be paid thereunder is intended by the Issuer to be excluded from
gross income of the Subordinate Holders, the Issuer makes the following covenants:
(A) The Issuer covenants with the Subordinate Holders of the Subordinate Obligation
that it shall not use the proceeds of such debt in any manner which would cause the interest on such
debt to be or become includable in the gross income of the Holder thereof for federal income tax
purposes.
(B) The Issuer covenants with the Subordinate Holders of such of Subordinate
Obligation that neither the Issuer nor any person under its control or direction will make any use of
the proceeds of such Subordinate Obligation (or amounts deemed to be proceeds under the Code)
in any manner which would cause such Subordinate Obligation to be "arbitrage bonds" within the
meaning of Section 148 of the Code and neither the Issuer nor any other person shall do any act or
fail to do any act which would cause the interest on such series of Bonds to become includable in the
gross income of the Holder thereof for federal income tax purposes.
(C) The Issuer hereby covenants with the Holder of Subordinate Obligation that it will
comply with all provisions of the Code necessary to maintain the exclusion of interest on the Bonds
from the gross income of the Holder thereof for federal income tax purposes, including, in
particular, the payment of any amount required to be rebated to the U.S. Treasury pursuant to the
Code.
6
Ordinance Noo 7366-04
SECTION 16. GOVERNMENTAL REORGANIZATION. The provisions of Section 21 of the
Original Ordinance shall be deemed applicable to this Ordinance and shall apply to the Subordinate
Obligation issued pursuant to this Ordinance as though fully restated herein.
SECTION 17. SEVERABILITY. If anyone or more of the covenants, agreements, or
provisions of this Ordinance should be held contrary to any express provision of law or contrary to
the policy of express law, though not expressly prohibited, or against public policy, or shall for any
reason whatsoever be held invalid, then such covenants, agreements or provisions shall be null and
void and shall be deemed separate from the remaining covenants, agreements or provisions of this
Ordinance or of the Bonds.
SECTION 18. REPEAL OF INCONSISTENT INSTRUMENTS. All ordinances or resolutions,
or parts thereof, in conflict herewith are hereby repealed to the extent of such conflict.
SECTION 19. EFFECTIVE DATE. This Ordinance shall take effect immediately upon its
enactment.
PASSED ON FIRST READING
PASSED ON SECOND AND FINAL READING
AND ENACTED
BrianJ. Aungst, Sr.
Mayor
Attest:
Cynthia E. Goudeau
City Clerk
Approved as to form
and legal sufficiency:
Pamela K. Akin
City Attorney
7
Ordinance No. 7366-04
City Council
@."@@~~St~"!:!"~<~"m~<~ver M ~~o"r~~~<~<~"!:!!<"""~@<wwww<<<"<"<<<<~@@
Tracking Number: 992
Actual Date: 12/02/2004
Subject / Recommendation:
Adopt Ordinance No. 7350-04 on second reading, amending Ordinance 6779-01, which vacated
the 60-foot right of way of Third Street (AKA Third Ave.), bounded on the east by the Westerly
right of way line of Coronado Dr. and bounded on the west by the easterly right of way line of S.
Gulfview Blvd. subject to special conditions.
Originating: City Attorney
Section Second Readings - public hearing
Category: Second Reading
Public Hearing: Yes
Advertised Dates: 11/07/2004
11/21/2004
Financial Information:
Review Approval
Pam Akin
11-15-2004
15:42:51
Cvndie Goudeau
11-22-2004
14:25:38
Cf\-5
le'.5
l
ORDINANCE NO. 7350-04
AN ORDINANCE OF THE CITY OF CLEARWATER,
FLORIDA, AMENDING ORDINANCE 6779-01 VACATING
THE 60 FOOT RIGHT-OF-WAY OF THIRD STREET, (AKA
THIRD AVENUE), BOUNDED ON THE EAST BY THE
WESTERLY RIGHT-OF-WAY LINE OF CORONADO DRIVE
AND BOUNDED ON THE WEST BY THE EASTERLY
RIGHT-OF-WAY LINE OF SOUTH GULFVIEW
BOULEVARD: SUBJECT TO SPECIAL CONDITIONS;
AMENDING THE SPECIAL CONDITIONS; PROVIDING AN
EFFECTIVE DATE.
WHEREAS, AI-Nayem International, Inc., and Thavabalasingam, owner of real
property located in the City of Clearwater, has requested that the City vacate the right-ot-
way depicted in Exhibit A attached hereto; and
WHEREAS. in Ordinance No. 6779-01. the City Council Qranted the vacation
subiect to special conditions which conditions have not been met; and
WHEREAS. the current owners. Beachwalk Resort. LLC. have requested
amendments to the conditions; and
WHEREAS, the City Council finds that said right-ot-way is not necessary for
municipal use and it is deemed to be to the best interest ot the City and the general public
that the same be vacated subiect to amended conditions; now, therefore,
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY
OF CLEARWATER, FLORIDA:
Section 1. The following: 60 foot right-ot-way of Third Street, (AKA Third Avenue),
bounded on the east by the westerly right-of-way line of Coronado Drive and bounded on
the west by the easterly right-of-way line of Gulf View Boulevard, closed and released and
the City of Clearwater releases all of its right, title and interest thereto, contingent upon
the tollowing conditions:
1. The project described within the Development Agreement between the City
of Clearwater and Beachwalk Resort. LLC Clearwater Seashell Resort, L.C.
shall Be commence vertical construction completed within one tAfee years
of the effective date of this ordinance. The one tAfee-year time period may
be extended for unavoidable delay as provided in the Development
AQreement suspended during matters beyond the control of the Clearwater
Seashell Resort, L.C., including litigation.
2. Easements shall be dedicated to provide adequate access to all relocated
utilities.
Ordinance No. 7350-04
Ul
3. All public and private utilities shall be relocated by Clearwater Seashell
Resort, L.C. at its own expense and to the approval and acceptance of the
utility owners with all out of service utilities removed prior to completion of
said project.
4. A 10-foot public access easement shall be dedicated to provide pedestrian
access from Coronado Drive to the new alignment of Gulf View Boulevard.
5. Tho Clo::1f\'Klter Seashell Resort, L.C. shall obt::1in ::1pprovaI from the City
Commission of the final design for South Gulfvio'l:/Boachwalk project.
5. This vacation ordinance shall be rendered null and void if any of the
preceding conditions are not met.
Section 2. The City Clerk shall record this ordinance in the public records of
Pinellas County, Florida, following adoption.
Section 3. This ordinance shall take effect immediately upon adoption.
PASSED ON FIRST READING
PASSED ON SECOND AND FINAL
READING AND ADOPTED
Brian J. Aungst
Mayor
Approved as to form:
Attest:
Pamela K. Akin
City Attorney
Cynthia E. Goudeau
City Clerk
Ordinance Noo 7350-04
CA-b
16./0.
City Council
<<<<<<~~~<"e~g~<~~~~e<<~<9ver M~rr-o!~e<!!e~<< u !!!ee<@<<<<<<@<~"~"e<<o
Tracking Number: 993
Actual Date: 12/02/2004
Subject / Recommendation:
Adopt Ordinance No. 7351-04 on second reading, amending Ordinance No. 6780-01, which
vacated the east 35 feet of the 70-foot right of way of Gulfview Blvd., bounded on the north by
the westerly extension of a line parallel to and 20 feet north of the northerly lot line of Lots 57
and 104 of Lloyd-White Skinner subdivision, and bounded on the south by the westerly
extension of the south lot line of Lot 59, L1oyd-White-Skinner subdivision, subject to special
conditions.
Originating: City Attorney
Section Second Readings - publiC hearing
Category: Second Reading
Public Hearing: Yes
Advertised Dates: 11/07/2004
11/21/2004
Financial Information:
Review Approval
Pam Akin
11-15-2004
15:42: 15
Cvndie Goudeau
11-22-2004
14:24:50
ORDINANCE NO. 7351-04
AN ORDINANCE OF THE CITY OF CLEARWATER, FLORIDA,
AMENDING ORDINANCE 6780-01, WHICH VACATED THE EAST
35 FEET OF THE 70 FOOT RIGHT-OF-WAY OF GULF VIEW
BOULEVARD, BOUNDED ON THE NORTH BY THE WESTERLY
EXTENSION OF A LINE PARALLEL TO AND 20 FEET NORTH
OF THE NORTHERLY LOT LINE OF LOTS 57 AND 104 OF
LLOYD-WHITE-SKINNER SUBDIVISION, AS RECORDED IN
PLAT BOOK 13, PAGE 12 OF THE PUBLIC RECORDS OF
PINELLAS COUNTY, FLORIDA AND BOUNDED ON THE SOUTH
BY THE WESTERLY EXTENSION OF THE SOUTH LOT LINE OF
LOT 59, OF SAID LLOYD-WHITE-SKINNER SUBDIVISION, (AKA
THE SOUTH LOT LINE OF THE BEACH PLACE MOTEL CONDO,
PLAT BOOK 65, PAGE 13, OF THE PUBLIC RECORDS OF
PINELLAS COUNTY, FLORIDA), SUBJECT TO SPECIAL
CONDITIONS; AMENDING THE SPECIAL CONDITIONS~
PROVIDING AN EFFECTIVE DATE.
WHEREAS, AI-Nayem International, Inc., and Thavabalasingam, owner of real property
located in the City of Clearwater, Aas requested that the City vacate the right-of-way depicted in
Exhibit A attached hereto; and
WHEREAS. in Ordinance No. 6780-01. the Council oranted the vacation subiect to special
conditions which have not been met: and
WHEREAS. the current owners. Beachwalk Resort. LLC, have requested amendments to
the special conditions: and
WHEREAS, the City Council finds that said right-of-way is not necessary for municipal use
and it is deemed to be to the best interest of the City and the general public that the same be
vacated subiect to conditions as amended; now, therefore,
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
CLEARWATER, FLORIDA:
Section 1. The following: East 35 feet of the 70 foot right-of-way of Gulf View Boulevard,
bounded on the north by the westerly extension of a line parallel to and 20 feet north of the
northerly lot line of Lots 57 and 104 of L1oyd-White-Skinner Subdivision, as recorded in Plat Book
13, page 12 of the Public Records of Pinellas County, Florida and bounded on the south by the
westerly extension of the south lot line of Lot 59, of said L1oyd-White-Skinner Subdivision (AKA
the south lot line of The Beach Place Motel Condo, Plat Book 65, Page 13, of the Public Records
of Pinellas County, Florida), closed and released and the City of Clearwater releases all of its
right, title and interest thereto, contingent upon the following conditions:
1. The project described within the Development Agreement between the City of
Clearwater and Beachwalk Resort. LLC Cloarw3ter Soashell Resort, L. Co shall
commence vertical construction be comploted within one tRfee years of the
effective date of this ordinance. The one tRree-year time period may be extended
for unavoidable delav as provided in the Development Aareement suspended
during matters beyond the control of the Clearwater Seashell Resort, L.C.,
including litigation.
Ordinance Noo 7351-04
2. The public vehicular and pedestrian use of the subject right-of-way shall be
maintained until such time as a suitable paved roadway is constructed aA--a
dedicated street right of way to the west of the subject right-of-way to
accommodate two lanes of two way traffic capacity.
3. Easements shall be dedicated to provide adequate access to all relocated utilities.
40 All public and private utilities shall be relocated by Beachwalk Resort. LLC
Clearwater Seashell Rosort, L.C. to the approval and acceptance of the utility
owners with all out of service utilities removed prior to completion of said project.
5. Tho Clo~:UV:Qter Seashell Resort, L.C. shall obtain approval from tho City
Commission of the final design for the South Gulfview/Beachvlalk project.
5. A 10-foot public access easement shall be dedicated to provide pedestrian access
from Coronado Drive to the new alignment of Gulf View Boulevard, and
60 This vacation ordinance shall be rendered null and void if any of the preceding
conditions are not met.
Section 2. The City Clerk shall record this ordinance in the public records of Pine lias
County, Florida, following adoption.
Section 3. This ordinance shall take effect immediately upon adoption.
PASSED ON FIRST READING
PASSED ON SECOND AND FINAL
READING AND ADOPTED
Brian J. Aungst
Mayor
Approved as to form:
Attest:
Pamela K. Akin
City Attorney
Cynthia E. Goudeau
City Clerk
Ordinance No. 7351-04
City Council
"~.........,~<~g~~~~!!m<.~O~!..~<<....~t~"~_~.!<~"~.~.~.!!!..
Tracking Number: 960
Actual Date: 12/02/2004
Subject / Recommendation:
Declare the attached list of vehicles and equipment surplus to the needs of the City and
authorize disposal through sale to the highest bidder at the Tampa Machinery Auction, Tampa,
Florida.
Summary:
Tampa Machinery Auction is the Pinellas County Purchasing Cooperative Auctioneer of Record.
See attached list.
Originating: Finance
Section Consent Agenda
Category: Other
Public Hearinq: No
Financial Information:
Type: Other
Bid Required? No
Bid Exceptions:
Other
Other Contract?
Surplus sale revenue
Current Year Cost:
$0.00
Appropriation Code(s)
0010-00000-365902-000-000
Amount
Comments
Revenue to be determined at time of
sale.
Review Approval
Georae McKibben
10-27-2004 13:04:00
Garrv Brumback
11-12-2004 11:07:34
Maraie Simmons
10-27-2004 15:00:28
Bill Horne
11-12-2004 13:40:41
fI\' - \
11.. \
Cyndie Goudeau
City Council
"*w~_,~<~gw~~<~<!!<"f_9~~~<r,""~_~!!!<<9r!!~~<~<!!t__<"<w'<_<<'<<<w'<'w"<<m<_~__'~__<'_mW~"~~~~W_
11-12-2004 14:52: 18
Surplus for December 2, 2004 City Council Meeting
I I REASON FOR I
ITEM # G# YEAR I DESCRIPTION SERIAL NUMBER I MILEAGE SURPLUS / DISPOSAL I
1 G0219 1993 Crown Victoria Police Cruiser 2FACP71W8PX179362 68,686 Age/Condition
2 G0286 1979 Monarl< Boat w/o Engine AMK223050679 N/A Age/Condition
3 G0390 1980 Enertec Sewer Tap Machine 16134 N/A Not feasible to repair
4 G0529 1988 Ford F-250 Pickup 1FTFF25Y4JNB54086 54,302 Age/Condition
5 G0571 1990 Ford F-350 Pickup 2FT JW35H5LCA42728 79,410 Age/Condition
6 G0758 1989 Ford F-350 w/ Flatbed 1 FDKF37H2KNA 114 7 4 76,984 Age/Condition
7 G0773 1989 GMC 3500 w/lfatbed 1 GDJR34K2KF703795 75,902 Age/Condition
8 G1222 1990 Homelite 3500w Portable Generat HK2820007 N/A Bad Generator Section
9 G1251 1986 Homelite Cement Saw TG0080084 N/A Not Running
10 G1298 1986 Ford F-250 Pickup 1 FTHF25Y4GNA27081 40,272 Age/Condition
11 G1495 1995 Ford F-350 w/ utility body 1 FDKF37H8SNB04225 53,421 Accident Totaled
12 G1534 1995 Chevrolet Suburban 3GNGC26K7SG106039 71,241 Age/Condition
13 G1549 1995 GMC Topkick w/PakMor Refuse 1 GDM7H 1 J 1 SJ526603 81,524 Age/Condition
14 G1565 1996 Ford CF8000 w/Petersen Loader 1 FDYH81E1TVA09720 117,190 Bad Engine
15 G1576 1996 Ford L8000 w/ VacCon Body 1FDYR82E9TVA08004 61,585 Age/Condition
16 G1611 1996 Dodge 1500 Pickup 1 B7HC16X9TS614607 130,234 Age/Condition
17 G1666 1996 Crane Carrier Side Loader Refuse 1 CYCCB488VT042596 77,380 Bad Rear Differential
18 G1668 1996 Crane Carrier Side Loader Refuse 1 CYCCB481 VT042598 71,958 Age/Condition
19 G1775 1997 Stihl Cement Saw 24115629 N/A Bad Engine
20 G1851 1997 Ford F-350 w/ utility body 3FEKF37H1VMA54696 95,511 Age/Condition
21 G1932 1998 Crown Victoria Police Cruiser 2FAFP71W9WX137536 96,764 Age/Condition
22 G1935 1998 Crown Victoria Police Cruiser 2FAFP71W8WX137530 93,772 Bad Engine
23 G1998 1998 Simpson Pressure Washer 9806648 N/A Bad Pump
CGS.- I
City Council
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Tracking Number: 955
Actual Date: 12/02/2004
Subject / Recommendation:
Approve First Amendment to Agreement and Gas Supply and Transportation Agreement with
Peoples Gas System; approve the filing of the Joint Petition for the First Amendment to
Agreement with the Florida Public Service Commission; approve the Master Marketing
Agreement with TECO Partners, Inc.; approve the Developer Agreement for Natural Gas
Distribution Service with Connerton, L.L.C.; authorize the appropriate officials to execute same
and authorize the Gas System Managing Director to approve future Developer Agreements.
Summary:
Over the past several months, Clearwater Gas System (CGS) has worked with Peoples Gas
System (PGS) on acquiring new territory in eastern Pasco County to serve gas to several new
residential projects. This territorial agreement will allow for CGS to serve two (2) separate
developments, called Connerton & Bexley Ranch, located in Pasco County, as well as several
future developing areas, which are projected to include the construction of approximately 20,000
new residential homes and associated commercial development over the next 10-15 years.
This land is currently located in the PGS service territory. However PGS has informed CGS that
they will not be able to serve these developments due to capital financial constraints. Therefore,
CGS has proposed to serve these developments by amending our existing Territorial Agreement,
as filed with the Florida Public Service Commission (FPSC), to reflect a new system boundary to
include the Connerton & Bexley Ranch developments as well as some adjacent properties and
access corridors.
Once approved, the First Amendment to Agreement will establish approximately 40 square miles
of new service territory for CGS, which will be located between State Roads 52 and 54, east of
the Suncoast Parkway and west of Ehren Cut-off (which is located just west of 1-75).
In order to compensate PGS for the loss in territory, the City will also need to enter into a Gas
Supply and Transportation Agreement, which requires CGS to use Peoples' backbone distribution
system on State Roads 52 and 54 and their gas supply to serve the customers located east of
the Suncoast Parkway. This will require two (2) master meter sets by PGS and the gas supply
service will be billed to CGS on a monthly basis.
A separate Master Marketing Agreement will need to be executed with TECO Partners in order to
compensate them for the marketing assistance that they provided to secure the Connerton &
Bexley developments and support CGS's future marketing needs in this eastern Pasco County
territory.
CGS has calculated the feasibility for the Connerton & Bexley developments and both satisfy the
seven-year payback requirement. In addition a separate rate ordinance will be brought forward
to the Council to provide for the recovery of the additional gas supply transportation costs from
PGS for the new CGS territory east of the Suncoast Parkway.
A Developer Agreement with Connerton, L.L.C. is required to establish gas service within the
Connerton development. It is also requested that the Gas System Managing Director be
authorized to execute future Developer Agreements.
The Joint Petition, First Amendment, Gas Supply & Transportation Agreement, Master Marketing
Agreement, and Connerton Developer Agreement are all on file at the Official Records &
Legislative Services Department.
City Council
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Originating: Gas System
Section Consent Agenda
Category: Agreements/Contracts - without cost
Public Hearing: No
Financial Information:
Review Approval
Chuck Warrinaton 10-25-2004 17:02: 11
Garrv Brumback 11-22-2004 10: 19:00
Laura LiDowski 11-15-2004 15:06: 19
Bill Horne 11-22-2004 11:19:01
Cyndie Goudeau 11-22-2004 14:27:53
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AGREEMENT
Section 0.1 This AGREEMENT is made and entered into this
J TfA day of 11?;~orC/~ , 1995, by and between the CLEARWATER
GAS SYSTEM of the CITY OF CLEARWATER, a municipal corporation
organized and existing under the laws of the State of Florida
( "Clearwater" ) , and PEOPLES GAS SYSTEM, INC. , a corporation
organized and existing under the laws of the State of Florida
( "PGS "). Clearwater and PGS are hereinafter sometimes referred to
singularly as "Party" and collectively referred to as "Parties."
WITNESSETH:
Section 0.2
WHEREAS, Clearwater is presently providing
natural gas service to private individuals, firms, corporations and
governmental entities in Pinellas County, both within and without
the corporate limits of the City of Clearwater, and adjacent to
Pasco County~ and
Section 0.3
WHEREAS, PGS is presently providing natural gas
service to persons, firms, corporations and governmental entities
throughout portions of the State of Florida, including certain
areas of Pasco County, Florida; and
Section 0.4
WHEREAS ,
a dispute has arisen between
Clearwater and PGS regarding service to potential natural gas
customers located in Pasco County, and PGS's petition to resolve
such dispute is presently pending before the Florida Public Service
Conunission ("PSC") in Docket No. 940660-GU; and
Section 0.5 WHEREAS, Clearwater and PGS desire to settle
the dispute between them in Docket No. 940660-GU in order that
present and future applicants for natural gas service may
expeditiously obtain such service from one or the other of them;
and
Section 0.6 WHEREAS, the respective areas of retail service
of the Parties are contiguous in certain places with the result
that duplication of service facilities may occur in the future
unless such duplication is precluded by virtue of this Agreement;
and
Section 0.7 WHEREAS, the Parties recognize that any
duplication of said service facilities may result in needless and
wasteful expenditures that are detrimental to the public interest;
and
Section 0.8 WHEREAS, the Parties desire to avoid and
eliminate the circumstances giving rise to the aforesaid potential
duplications and toward that end have established a Territorial
Boundary Line to delineate their respective retail territorial
areas in Pasco County; and
Section O. 9 WHEREAS, the PSC is empowered by the
legislature of the State of Florida, pursuant to section
366.04(3)(a), Florida Statutes, to approve territorial agreements
between natural gas utilities;
Section 0.10 NOW, THEREFORE, in fulfillment of the purposes
and desires aforesaid, and in consideration of the mutual covenants
and agreements herein contained, which shall be construed as being
2
interdependent, the Parties, subject to and upon the terms and
conditions herein set forth, do hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1
Natural Gas As used herein, the term "Natural
Gas" shall mean: natural gas, manufactured gas, liquefied gas with
air admixture, or a similar gaseous substance furnished to the
public by pipeline.
Section 1.2
Clearwater Territorial Area As used herein,
the term "Clearwater Territorial Area" shall mean the area labeled
Clearwater Gas System Pasco County Service Area on Exhibit ,iA" of
this Agreement.
Section 1.3
PGS Territorial Area As used herein, the term
"PGS Territorial Area" shall mean the area labeled Peoples Gas
System Pasco County Service Area on Exhibit "A" of this Agreement.
Section 1.4
Existing Customers As used herein, the term
"Existing Customers" shall mean those natural gas customers of
either Party taking service from that Party on the effective date
of this Agreement.
Section 1.5
Point of Use As used herein, the term "Point
of Use" shall mean the end-use natural gas facilities of a
customer, as distinct from the point of connection or point of
metering.
Section 1.6
New Customers As used herein, the term "New
Customers" shall mean those consumers applying for natural gas
service for a Point of Use in the Territorial Area of either Party
during the term of this Agreement.
3
Section 1.7
Territorial Area As used herein, the term
"Territorial Area" shall mean either or both, where appropriate,
the Clearwater Territorial Area or the PGS Territorial Area.
Section 1.8
Territorial Boundarv Line As used herein, the
term "Territorial Boundary Line" shall mean the boundary line 50
labeled, designating the dividing line between the areas shown on
Exhibit "An of this Agreement, which dividing line is further
described as follows:
Beginning at the Gulf of Mexico at the northwest corner
of Section 30, Township 25 South, Range 16 East and then
running easterly along the section lines approximately
0.5 mile north of Ridge Road to the westernmost property
line of the frontage property along the western side of
Little Road and then generally northerly along the
westernmost property lines of the frontage properties
along the western side of Little Road to the centerline
of SR 52 and then generally easterly along the centerline
of SR 52 to the eastermnost boundary of the Serenova
Development, intersecting at the centerline of SR 52.
Then following the eastern and southern boundary lines of
the Serenova Development (the legal description of such
Development being attached hereto and made a part hereof
as Exhibit "B") and then westerly along the southern
boundary of the Serenova Development to the northeast
corner of Section 2, Township 26 South, Range 17 East and
then southerly along the east line of Sections 2, 11, 14,
23, 26 and 35 of Township 26 South, Range 17 East to the
Hillsborough!Pasco County line. The above description is
intended to include within the Clearwater Territorial
Area all properties lying south of SR 52 owned by
Serenova, Ltd., as of the date of this agreement which
are herein referred to as the Serenova Development.
Additionally, all parcels of property adjacent to the
western right of way of Little Road within the described
area shall be within the Clearwater Territorial Area.
Section 1. 9
Through Pipelines As used herein, the ter.m
"Through Pipelines II shall mean pipelines traversing the Territorial
Area of the other Party but not serving customers within that
Territorial Area.
4
ARTICLE II
RETAIL NATURAL GAS SERVICE
Section 2.1
In General Except as otherwise specifically
provided herein, Clearwater shall have the exclusive authority to
furnish retail natural gas service to all New Customers within the
Clearwater Territorial Area, and PGS shall have the exclusive
authority to furnish retail natural gas service to all its Existing
Customers and all New Customers in the PGS Territorial Area.
Section 2.2
Service to New Customers The Parties agree
that neither of them will serve or attempt to serve any New
Customer whose Point of Use is located within the Territorial Area
of the other Party, except as provided in Section 2.4.
If a New Customer or prospective New Customer requests or
applies for service from either Party, but such Customer's Point of
Use is located in the Territorial Area of the other Party, the
Party receiving such a request or application shall refer such New
Customer or prospective New Customer to the other Party with
citation to this Agreement as approved by the PSC.
Section 2.3
The Parties recognize that, in specific
instances, good engineering practices or economic constraints on
one of the Parties may from time-to-time indicate that small
service areas and/or New Customers should not be served by the
Party in whose territory such areas or Customers are then located
under Section 2.2. In such instances, the Parties agree to jointly
and expeditiously seek approval of the PSC for modification of this
Agreement in order to permit the appropriate Party to provide
service to such small service areas and/or New Customers.
5
Section 2.4 To help facilitate the provision of natural gas
service to Customers and to minimize costs and delays in providing
such service, a Party which has a gas main installed on its side of
the Territorial Boundary Line may temporarily serve Customers
located on the other side of such Territorial Boundary Line in
territory herein reserved to the other Party only (a) if requested
by such other Party or (b) if such other Party is unable to provide
such service within a reasonable time; provided, however, that when
such temporary service is contemplated by a Party, it shall give
written notice, setting forth the details of such contemplated
service, to the Party in whose territory the Customer is located
under Section 2 . 1 of this Agreement, and to the PSC, before
installing any additional facilities needed for the provision of
such temporary service. At such time as the Party in whose
territory such Customers are located under Section 2.1 has a gas
main available for providing, or is otherwise able to provide,
natural gas service to such Customers, the Party providing
temporary service pursuant to this section shall surrender any such
Customers upon the request of the party in whose territory such
Customers are located, and shall convey to such other Party, at
replacement cost less depreciation, such gas mains, service lines,
and appurtenances thereto previously used by the Party in providing
temporary service whether or not such facilities are necessary for
the provision of service by the acquiring Party and located in the
territory of the Party which will provide service thereafter. Any
Customer who receives the temporary natural gas service under the
6
provisions of this section shall be notified in advance that when
service becomes available from the Party in whose territory such
Customer is located, the Customer will be required to receive
service from such Party at such Party's then-current rates, and
that such temporary service is provided only as a temporary
convenience to the Customer.
ARTICLE III
OPERATION AND MAINTENANCE
Section 3.1
Facilities to Remain Nothing in this Agreement
is intended to affect the gate stations, regulators, or gas mains
of either Party which are now or which may in the future be located
in the service area of the other Party; provided, however, that
each Party shall operate and maintain said lines and facilities in
such manner as to minimize any interferences with the operations of
the other Party. No such facilities shall be used by either Party
to provide retail natural gas service to Customers located in the
Territorial Area of the other Party except as may be necessary to
implement the provisions of Section 2.3 or 2.4 hereof.
ARTICLE IV
PREREQUISITE APPROVAL
Section 4.1
PSC Approval
The prov is ions and the Parties'
performance of this Agreement are subject to the regulatory
authority of the PSC, and appropriate approval by that body of the
provisions of this Agreement shall be an absolute condition
precedent to the validity, enforceability and applicability hereof.
This Agreement shall have no effect whatsoever until that approval
has been obtained, and the date of expiration of the appeal period
7
following issuance of the Order granting PSC approval of this
Agreement shall be deemed to be the effective date of this
Agreement. Any proposed modification to this Agreement shall be
submitted to the PSC for approval. In addition, the Parties agree
to jointly petition the PSC to resolve any dispute concerning the
provisions of this Agreement or the Parties' performance of this
Agreement.
Section 4.2
Liability in the Event of Disapproval In the
event approval pursuant to Section 4.1 is not obtained, neither
Party will have any claim against the other arising under this
Agreement.
Section 4.3
Notwithstanding any approval of this Agreement
pursuant to Section 4.1, this Agreement shall automatically
terminate one year after the vote to approve the Agreement by the
Public Service Commission or one year after the entry of an order
by the circuit court for Pinellas county relating to the validation
of the City of Clearwater Gas System Revenue Bonds, whichever comes
earlier, in the event Clearwater has not, on or before said date,
obtained all financing and governmental approvals necessary to
provide natural gas service within the Clearwater Territorial Area.
In the event this Agreement is terminated pursuant to this Section
4.3, neither Party will have any claim against the other arising
under this Agreement.
ARTICLE V
DURATION
Section 5.1
Prior to the second anniversary of the
effective date of this Agreement and every fifth anniversary
B
thereafter, the Parties shall meet to review the status of this
Agreement and shall submit a joint status report to the Commission.
After this Agreement becomes effective pursuant to Section 4.1
hereof, it shall continue in effect until modification shall be
mutually agreed upon and approved by the PSC, or until termination
shall be mandated' by a governmental entity or court having
jurisdiction to mandate such termination or modification.
ARTICLE VI
MISCELLANEOUS
Section 6.1
Neqotiations Whatever terms or conditions may
have been discussed during the negotiations leading up to the
execution of this Agreement, the only ones agreed upon are those
set forth herein, and no alteration, modification, enlargement or
supplement to this Agreement shall be binding upon either of the
Parties hereto unless the same shall be in writing, attached
hereto, signed by both Parties, and approved by the PSC.
Section 6.2
Successors and Assiqns
Nothing
in
this
Agreement, expressed or implied, is intended or shall be construed
to confer upon or give to any person or corporation, other than the
Parties hereto, any right, remedy or claim under or by reason of
this Agreement or any provision or conditions hereof; and all of
the provisions, representations, covenants and conditions herein
contained shall inure to the sole benefit of, and shall be binding
only upon, the Parties hereto and their respective representatives,
successors and assigns.
9
Section 6. 3 Notices Notices given hereunder shall be
deemed to have been given to Clearwater if mailed by certified mail
to: Managing Director, Clearwater Gas System, City of Clearwater,
400 N. Myrtle Avenue, Clearwater, Florida 34615, and to PGS if
mailed by certified mail to: Division Manager, Peoples Gas System,
Inc., 1800 Ninth Avenue North, St. Petersburg, Florida 33713-7117.
Such address to which such notice shall be mailed may be, at any
time, changed by designating such new address and giving notice
thereof in writing in the manner as herein provided.
IN WITNESS WHEREOF, the Parties hereto have caused this
Agreement to be executed in duplicate in their respective corporate
names and their corporate seals affixed by their duly authorized
officers on the day and year first written above.
10
PEOPLES GAS SYSTEM, INC.
By:
Rita Garvey
Mayor-Commissioner
Approved as to form and
le;::iifi2ency:
Pamela K. Akin
city Attorney
c :\4:lc8I"wat\agrccmcnt
Approved as to Legality of Form
By:
~~
Legal Cou sel to Peoples
Gas System
CITY OF CLEARWATER, FLORIDA
By: ~/'" ~
Elizao th M. Deptula
City Manager
Attest:
c!n't~. ~~u~~~ .0,_
City Clerk
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EXHIBIT "B"
ATTACiA ~ CE5C.'1IPTICH CFTHE O~ SITE. lNQ, t~~. TOVYNaHaP
NItJ RANGe.
A PAllea.. OF LAND l..OCAreD ANO LYING 6N secnONs 2 ItNO n. TOWNSHIP ~ $OurH.
RANGE 11 EAST. PASCO COUNN, PlClue" L't1NG NORTH OF STATI RQ.tU) NO. la2 AND WIlT
Of HAYS ROAD AND EAST OP THE PLORSOA ~ ~AATION "IGHT.QII.WAV IElNG
MORE P.MT1CULARl.'t DESQltl8ED AS fOUCWS:
FROM THI COMWCN CORNER OF SECllONS t. 2. 11 AND 12. TOWNSHIP 21 SOUTH. RANGE
'7 !AST. "''''SCO COUNTY. I'LQFlJOA. AS A ~f Oil' ~!)',ICi: THINCZ SW!&'C'W,
.4l.0NG THE! SOUTH UNI 01' SAle secnCN 2. fWD UN&' ALSO OEJNG THI! NOATH UNE OF
&UO SECnCH 11, ~.a1 FEET TO 111E WlSTEI=U..Y RIGHT .or.WAY UNE OF HA'V8 ROAD (A &IS'
AfM .8 IT' NOW PlS'1'$ fOR A POINT OJJI5EGJNNlNG; THENCE ~'oa-w, ALONG SAlO
WeSTERLY ft{W UN&. 644..2"- FlIT TO ITS fNTER~CTION WITH THe NORTHDLY
f'IGHT..oF.WAV UNI 01' SAlO~TA1E f(O,\,D NO. 52 (A 100' RIW);TH~ SID",~'Z2"W, ALCN$
SJefD NOATMERLY AIGHT.oF.WAY UN! 1.248.61 rreT; nclNCZ ALONG"". EASTERLY UNI
0.. THE PROPOSED $UNCCAST RIGHi .oF.WAV UNE N1~.'Z1'~ 1.300.00 PUT: THENC!
lEAvcNG SAlO fUGHT .oF.WAY UNE S30~r24"!. S..93F'EET~ THiNeI N&a"!2'4Q"'. eeo.oo n..5f
TO THE '.0.8.
CONT~NlNG aJ,W ACReS. MORE OR t.l$$.
A1.S0:
FAOM THe COMMON CQANEfI OF secnONS 2.. 3.. 10 ANO t 1. TCWNSl-1IP 25 SOUTH. lWtGe
17 EAST. PA6CO COUNTY. Pl..ORlCAASAICINT or R!FeRE~; THENCE ~1.t''#!'W.~NG
THe weST UNe 0,. SAle secnoN 11, SAID UNE ALSO BEING THe NT UNE 0' seCTION 10.
1.077.~ FEET TO TH& SOUTHI!RLY RIGHT-of.WAY UNE Of ~o $TA.Te "0;\0 NO. sa (A '00.
RfN). FOR A POJNT Of aealNN1NG; THeNe! ~I..ONG S,lJO SOtJn04ERLY A.GHT.OfJ-WAY UNE
av THE I'OU.OWlNG FOUR (.t. COURSES AND CISiANCES: " THfNC2 Sao-zI'2TE, 448.14
F"!t:T; 2) 1IiENC2 CS71,. I'EET ALONG THe ARC OF A CVAve TO iME LJ:FT H"VINQ A MCIUS
0" 2.341.aa FEET. CHORD Sas-42'~"S. e68.A fEET; ~) THENca ~'2I"!. 1.&t6.$1 FeET:
4. THINe! 47.82 FEET AlONG THE "PIC QF A CURVE TO THE RIGHT HAVING A AACIUS OF
22.6f58.~' FEET. QoICRO N~"04"E. 47.82 F~!T TO THE INTER$!C110N OIl SAID SOt.J'THEALY
RIGI-IT .C1'.WAV UN&: ~D THE WESTERLY BOUNCS OF THe FlORtOA POWER COftPOAAllON
RIGHT.OF-WAY AS RECOAOED IN O.R. SOOK 288. ~AGES 34 ANO 3S. PUBUC RICORDS OF
PASCO COVNlY. FLORIOA: THeNC& S '..12"11-W, AlONG S"loweSTIRLY RIGHT .oF.WAYUNe.
22.4G2.13 Fur TO ,t, POINT ON Tl-tc weSTERLY UNe 0': THE NOIlm1EAST i/~ OfC tAlD
SECTION 34: THENCE NOO.18'OS"E. AlONG SAIO UNe. 1.S73.-4a FEET TO THe SQVTHWlST
CORNER OF THE SOUTHeAST ". OF SAlO secnON 27; THENC! ALONG TH! NORTH/SOUTH
C!NTeRUNI OF $AID SECTIQN a7. NOQ'11'03-E. $,aS3.-4'7 FeET TO THS SOUTHI.A$T CORNEA
0' THE SOUTHWeST 1/4 0' SAID seCTION 22: THENCS sena'3CS"W, 1.~.26I'tET TO 'THE
SOUTHWEST COANfR OF THE SOUTHEAST 1/. OF ~ SOUTHWEST 1/4 OF SAIO 8eCTJON
22. THfNCI NOO.2Ci'01'"E. 5.~7.sa FEET TO THE SOUTHWEST COlltNER OF THE SOUTHEAST
1/4 OF TM8 SOUTHWEST 1/4 OF SAlO SECTION 15, THeNCE N01-:=a'U-=. 2.$1".80 fEET TO
THE SOUTHW!ST CORNEA 0.. THE SOUTHEAST 1/4 OF THe NORTHW~ST '/4 OF SAID
secnON t 5: niENQ! NOa-o "ag-e. 2.SS3.SMS fEET TO THe! SOUTHWEST CO"NER 01' TMt:
SOUTHJ!AST 1/4 OF TJooCE SOUTHWEST 1/4 OF SAID SeCTION '0; THCNCEN0C'"3T3V'W. 3.RO.~
FEET TO THe NORTHWEST 1/4 orr THE SOUTHEAST 1/4 Or THE NORTHWEST t 14 OF !ND
seCTION 10: THRNCE N~'O;)'"E. 1.33:J.42 Fl!eT TO THe NCATHIU\5T CORNl!ft OF THE
SOUTHEAST '/4 OPTHENOAllfNEST1/4OfSAJO secnoN 10: THENCW NOO~4'29'W. ALONG
THE NORTH/SOUTH C2NTEAUNE Of' SAID ~CTlON 10. M4.70 FEET TO THE INTEASEC110N
OF SAlO UNE AND THE SAID SOUTHER" Y ~IQHT ..QfJ.WAY Of' eTATEROAC $2: n-teNC~ ALONG
$AiD "tGHT-oP-WAY uNa; BY THI YQlJ..OWtNG FOYR (4) eOUA8ES AND OtST.6.NC&a. 1)
THENC& 12..5; FEET AlONG THE ARC 01' A CUAVE TO THE LEFT CONCAVI TO THE
NOATHe.AST. t-IAVING A RADIUS 0" 2.341.83 fEET. CHORD ~a"2l7&. 022.14 FeET; 2) THENCe
S7r~'os-e. 991.92 FEeT: J) THENCE 57~. 7Z FEin' ALONG THE AAC Of A CURVI! TO THE L.Ur
HAVINGA~IU8 ~ 1 t,509.16PEET, CHO"O$iV03'46-e,S73.8SFm": 4~ ~C2S1Cr28"2~
$25.11 REf TO THe PCtNT Of eeGlNNtNG.
CONT.A&HlNG 1.78Q.... ACRES. MO~IE OR u:ss..
~:
A ~NIC& OF lAND LY'lNG WJTH SECnOHS ~4 AND PORTIONS OF 11, 13. 1.. 22. ~ 2S. :a. 27
ANI) :)8. TOWNSHIP 25 :SOUTH. RANG2 171MT, PASCO COUNTY, fLORlDA. alNO MCRe
PAATlCLl&.ARLY DESClURC AS ,.au.OWfk 0
HGIN AT THE NOImtEA8T CORNER CI ""D SlC'TlON 3&: l1-C!NCS SGfrOI"M"W. AlONG TM!!
EMTIIILY UNE Of' SAID $!cnCN.36. 3.4ICUM '5T TO T1-E NO~Y A.GHT..cf'"WAY UNa!
OF THI....CPOSED SUNCOAST exPftI$$WA't': THENC& ALONG IA'D NORTHERlY JUGHr.
OP.JNAY. UNE BY A NON.TANGENT CUINI. SAID CUftW HAVING A AAOIUS OF I. UIO.. PeT
AND A CENTftALAffGL: Of' ~.10~l.j ~ N~LY ALONG THIf NtC OF GAID CUf'VI
TO THe LEfT, It CISTANCE -4tM8,~" nET, (CMORQ IE.t.RlNG N47'O$..,.-w. CHORD LENGTH
~. 7S8.Q8 FEET); lliENa: N7...-o'.W. ~,0141." fur TO THI POINT Of CURVATURE 01' A
CURVe. SAID CURVe HAVING A RADIUS 0' 2. 1'1 S.aG fEeT ANO A C9f1'AAL.-.NGL! OF m'OQ'OO.;
THENC2 WESTeRLY ALONG n-iE Me OF SAID (:U"VI! TO 'T1iE ftIGHT. A OIGTAHC2 CI" "'.11
FaT, (CHORD HMING NCMe.lfO'.e"W, CHORD LENGTH S4a.11 FEET): THENCE N$4.4C)....o"W.
41,594.. FElT TO THe POINT OF CUfNATUAE OF A CURVE. SAtD QJftva HAVING A RACIU8
OF 3.~.OO FEET ANO A C2Nl"RAL ~GU: 0,. W$3'OO.: THeNC2 NORTHWeSTERLY A"~G
TH~ Me OF SAID CURve TO THE RIGHT. A. DtST~ Oil _,027.5t flIT, (QiCAD BKMING
N2O"'14'19'W. CHORD UINGTH :3.788.::;0 F!ET), THeNCi NI4.12'11.;, 1.,_,~ FEET TO THe
SOlJTHER~Y flIGI-lT..oP'.WAY LINE Of STATE ROAD NO. S2: THINCE Ne:r'1$'2rE.&A..ONG SAID
$OUTHERl.YRJGH1..QP-WAY 1.827.;J2Fe:T; THENCiLiA\I1NG SAID RIGHT ..(JF-WAY SOO"OI'O.~.
4,595.97 FeET; TMENQ! sag-.....4,3..1i., 15.58 FeET; THINa SOO-1ru"W, eo3.D3 f~!T. ~
ssr.s1 "2S'W, 1.02' .07 fm-~ n-iENa s t5.42'lS8"e. 921.04 l'!l!Ti ll'1ENCC N7S.:i2':sz"'E. 2.044.84
F!I!!T; TH~ S3rZS'5(M!. 4!,SOO.43 FlIT; THENCS Ni&4~1'1a-E, 1.589.:13 FEl!T~ THENCZ
SS2"04'10-" t .0&1.30 FEET: THENCE Na:r43'OO.I. 738.78 FEST TO THE EASTE'U..Y UN! OF SAiD
SEen ON 13: THfNCS 5OCn1a'S4"W ALONG THE EASTeRLY UN&: 011 SAlC SECTIONS 1~, 2. AND
2$. l:J.2Zt.ta J'!!T TO niE PQIN1' OF BEGINNING.
co NT AlN'NG 3.~.050 AatES OF LANC. MOOK OR U:SS.
LIsa THE weST 1/2 OJ; THE NORTHI!AST 1/4 OF S&CTI0N 15, .TOWNSHIP 26 SOUTH. MHCJa
1 T WAST. CONTAINING 80 ACRES MaIllC OR LESS. . r
t.eSS n1E SOU'O-t€AST , /4 Of TH! NORTHEAST 1f4 OF THE SO~EAST 1/f Me) THe
NORTHEAST 1{" OP TliE SOUTtiEAST 1/. OFTHII SOlITl1fAST 1/4 OF SECTION 1~, T~H'P
2$ SovrH. RANGe 17 eAST. CONTAiNING 20 ACRES MORE OR LEss.
ALSO:
~ """C21. OF LAND BEING PORtiONS OF secnONS 28. 27. ~. 035 AND 31. TOWNSHIP 21
SOUTH. RNiGI17 EAST. PASCO COUNTY. R..ORlCA, I1EING MORE P.lRT1CUlAAL Y CI~'lSeo
AS FOLLOWS:
eeGIN AT THe! SOUTHEAST CORNEA 01' SAtO SECTION 36: THENa NtIfIU'2Z'W .4l0NG lliE
SO~IRL v UNE OF SAID seCTION::e. ~.294a FEET TO THI SOUTHEAST CORNER ~ SAJC
SECTION 35; TH6aa N"sa'2ZW ALONG THE SOUTHEJltL Y UNE OF SAID SECTION 35-
5.:)00.86 f!!!1" TO THE SOUTHEAST CORNER OF SAlO SiCTJON ~; TttENC! sesrarsrw
ALONG TH' SOUl'HERI..Y UNE OF &110 SI!CTlON 34. $3$.00 FeET; THeNCllV.VlNG SAlO
SOUTMIRL Y UNE NOO~2'QAW. 220.00 FEET~ THENCl NW~T58.E. 131.01 FEeT TO THE
EASTeRLY LINE OF SA10 SECTION ~.; THENce NOO.'4'~1! ALONG $AlD 1fA81'EPU.Y UNI!..
2,040.00 FeEl"; TM~NCZ lEAVING SAlO UNe ~1"2$'oa"W. 1,0"3.08 Fltrr; THf;NQ av5T5U"W.
no.oo ,eE.T; 'OiENCC S!5S"23',O'W. ~03.31 F&CT: THeNC2 ~"'08"W. 873.2. FEET TO TH.
!ASTeRL.Y UN<< OF A fLQRlCA ,.OWER AIGHT.()F.WAY UNe AS I'I!CCRCIfD IN OPPlOAl
RECORD SOOK 280. PAGES :w AND 35 OF n1E PU8ue RrCORDS OF PAeCO COUNlY.
f\.OFftDA; 1"He.NC2 N14"12'11 '1: ALONG ~D EAGYfRt. Y RIGHT .of . WAY UNIi '.4mrI..u Fm!r TO
THe SOUTHERt.Y LJNE OF THE PROPOSeC SUNCOA$T iXPRESSWAV RIGHT..ar.wAY; THEHa
ALCNG SAID $OUTHERLY UNC BY A eu.;vE TO THI! LIIJIT, HAVING A AAOtUS OF :J.IIO.QO PIer
AND A CINTJW. ANa... OF 5r5:rOO.. THEHC! SOUTHERLY AlONG TI-JE .ARC Of SAID CURVE
TO THE LIFT~ A ClSTANCS OF 4.388.1' ~. (Q1ORO 8eAAlNG Sm"1.-1s"E. CHQIU2 L.SNGTH
...1.... ~: THecc ss.-40Y-48'1!, 2,!&4.12 fer TO THI ~ OF CUftVATUIIR 01' A
CUAVe. SAID CURVe HAVING A RAOIUS OF ~.a'5.00 FeE'r ANO A cafTJW.AHGIJ! Of' ~"QO..
THENCE SOU11-lEASTEm.Y N...ONG lHl AIIO OF :we CURVE TO THe L.lIIT, A OISTN<<Z OF
'.052.43 Fa:T. (CHORO BeARING ~<<r4s-c. CHORD L.ENGTH t,047.10 nan; THIHGZ
S74'~'4tTE, 3.01..84 'lET TO THe f'OlNT OF CUAVAllJRE 011 At CURVE. $AlC CUftW HAVING
A RAOIUS OF -,860.00 FEET AND A CEN1'RAl. ANGlE' 01' 74-SO'01~_ THeNCZ EASTERLY ALCNG
THE ARC OJr SAID CURVE TO THE RIGHT. A D.ST~ OF 1.~,50 FEET. (~ IIAAING
S3;-'S'....I. CHaRD lZNGTH 5,8Q3.8' PI!!11 TO THE eASTERLY UNE OF SAID SIC1'10N.:
nE.NCE SQO"OI'S4"'W "LONG ~D EASTERLY UNE. 85.~ FEET. TO THE POINT 0' BEGINNING;
CONTAINING 1..'542.980 .ACRES. MORE OR lESS.
CONT AlNINO 4. 7'4.344 A~ES, MORa OR LESS crOTAl. OP AlL .uroREMENTlONEO PARc;1.S).
-,,/.,",\ \
~r'. l (}l'J-
.s:- 'l: II 0 Z.
GAS SUPPLY AND TRANSPORTATION AGREEMENT
This Gas Supply and Transportation Agreement (the "Agreemenf') is made and entered into
as of the 18th day of November, 2004, by and between Peoples Gas System, a Division of Tampa
Electric Company, a Florida corporation ("PGS"), and Clearwater Gas System, a department of
the City of Clearwater, Florida, a municipal corporation organized and existing under the laws of
the State of Florida ("CGS").
W II N ~.Q.Q~I H:
WHEREAS, each of the parties is a natural gas distribution utility owning and operating
distribution systems for the delivery of natural gas to customers within its respective service territory
within the State of Florida;
WHEREAS, CGS intends to provide retail natural gas service to consumers within an area
located east of the Suncoast Parkway ("Parkway") which generally includes new developments in
Pasco County, Florida, known as Bexley Ranch land Trust ("Bexley") and Connerton llC
("Connerton") (collectively, the "Developments"), and desires that PGS deliver natural gas to CGS
through a series of meter transfer points to be located near the Developments; and
WHEREAS, PGS is willing to provide such service to CGS on the terms and conditions
hereinafter set forth 0
NOW, THEREFORE, in consideration of the premises, the mutual promises contained
herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties, intending to be legally bound, hereby agree as follows:
ARTICLE I - DEFINITIONS
Section 1.1 Defintions. As used herein, the following terms shall have the meanings set
forth below.
"Absolute Pressure" means atmospheric pressure of 14073 psia plus gauge pressureo
"Actual Takes" means the difference between the current and previous meter reading for each PGS meter
facility within the Developments.
"Business DaY" means Monday through Friday (excluding federal banking holidays).
"Bexley" means the residential development known as Bexley Ranch land Trust, located in Pasco County,
Florida, as more particularly shown on the map attached hereto as Appendix A.
"British Thermal Unit" means the quantity of heat required to raise the temperature of one pound of water from
59 of to 60 of at a constant pressure of 14073 psia.
"BTU" means British Thermal Unit
"CGS Installation" means all pipe, fittings, appliances and apparatus of every type (except metering, regulating
and other similar equipment which remains the property of PGS) located on CGS's side ofthe Point of Delivery and used
in connection with or forming a part of an installation for utilizing Gas for any purpose.
"Connerton" means the residential development known as Connerton llC, located in Pasco County, Florida,
as more particularly shown on the map attached hereto as Appendix A.
"Corridors" means (i) easterly along State Road 52, from the intersection of its centerline with the eastemmost
boundary of the Original 1995 Clearwater Territory described in the Territorial Agreement near Hays Road, to its
intersection with land 0' lakes Boulevard (US 41), and (ii) in Section 30, Township 26 South, Range 18 East, from the
intersection of the centerline of State Road 54 and the centerline of the future entrance road to Bexley, northerly along
the centerline of the future entrance road to Bexley to the northern boundary of Section 30, Township 26 South, Range
18 East.
1
"Cubic Foot of Gas" means gas delivered at a Standard Delivery Pressure, a Cubic Foot of Gas is the volume
of Gas, which, at a temperature and pressure existing in the Meter, occupies one cubic foot. For Gas delivered at other
than Standard Delivery Pressure, a Cubic Foot of Gas is that volume of Gas, which at a temperature of 60 OF and an
Absolute Pressure of 14.98 pounds per square inch occupies one cubic foot.
"Develooments" means both Bexley and Connerton.
"FPSC" means the Florida Public Service Commission or any successor agency.
"Gas" means natural gas or a mixture of gases suitable for fuel, delivered through either PGS or CGS
distribution system, having a heating value of not less than 950 BTU's per cubic foot.
"Gas Service Facilities" means the service line, meter, and all appurtenances thereto necessary to convey
Gas from the gas main to the Point of Delivery and which are owned by PGS.
"Meter" means any device or instrument used to measure and indicate volumes of Gas, which flow through
it.
"Parkway" means the Suncoast Parkway (Florida State Toll Road 589).
"Point of Deliverv"' means the point at which PGS's Gas Service Facilities are connected to CGS Installationo
"Suoolier(s)" means a party or parties, other than PGS, from which CGS purchases Gas for delivery to PGS for
transportation hereundero
"Territorial Aareement" means the Agreement dated March 17, 1995 between CGS and PGS establishing the
service areas of each within Pasco County, Florida, as the same may be amended from time to time.
ARTICLE II - TERM
Section 2.1 Effective Date. The Parties hereto agree that this Agreement and all duties
and obligations hereunder are wholly contingent upon an amendment to the Territorial Agreement
allowing CGS to enter upon and service a portion ofthe Pasco County territory which was previously
awarded to Peoples in the Territorial Agreement and which includes the Developments and the
Corridors. Upon satisfaction of the above contingency, this Agreement shall become effective on
the date first written aboveo The term of this Agreement shall commence on said date and continue
for so long as CGS (or its permitted successors or assigns) provides natural gas service to
customers within the Developments or areas adjacent to the Corridors.
ARTICLE III - GAS SUPPLY SERVICE
Section 3.1 Services. PGS desires to sell and CGS desires to purchase Gas from PGS for use in
providing natural gas service to customers within the Developments and areas adjacent to the
Corridors until such time as CGS provides notice of its intent to utilize transportation only services as
permitted hereunder. Sales or transportation service, if CGS elects such service pursuant to
Section 3.4, shall be governed by PGS's FPSC Tariff and this Agreement. If there is a conflict
between the tariff and this Agreement, the provisions of this Agreement shall control.
Section 3.2 Full Reauirements. During the term of this Agreement, CGS agrees that all Gas
delivered to customers within the Developments and areas adjacent to the Corridors will be
purchased from or, if CGS elects to transport pursuant to Section 3.4, transported by, PGS. Should
CGS elect transportation only service from PGS, CGS shall, in its sole discretion, be permitted to
purchase its Gas from other Supplier(s)o However, PGS, recognizing that its facilities are the only
facilities allowing for the transportation of Gas hereunder, shall remain obligated to provide such
transportation service for the duration of the Term of this Agreement.
Section 3.3 Meterina Eauipment and Locations. PGS agrees to install all facilities used to
provide sales service to CGS hereunder and all such facilities shall be owned, operated and
maintained by PGSo Such facilities shall include two (2) meter stations to serve CGS customers
east of the Parkway, which meters shall be generally located at or near (i) the intersection of Hays
2
Road and State Road 52 and (ii) the Bexley entrance road just east of the intersection of the
Parkway and State Road 54, as indicated in Appendix A. In addition, PGS shall provide a temporary
compressed natural gas (CNG) facility near Connerton (to enable CGS to serve customers in
Connerton), as indicated in Appendix A. PGS shall provide such temporary CNG facility until PGS
has installed Gas Service Facilities capable of providing natural gas service to Connerton, which
Gas Service Facilities shall be installed and ready for use no later than the earlier to occur of (x)
June 2007 or (y) the completion of 150 homes within Connertono If CGS elects to receive
transportation only service pursuant to Section 3.4, CGS shall (i) on receipt of PGS's invoice
therefore, reimburse PGS for all costs incurred for telemetry and other equipment which PGS must
install in connection with providing transportation service, and (ii) provide, pay for and set up
telecommunications lines required for telemetry. Unless the parties agree otherwise, all facilities
used to provide transportation service to CGS hereunder shall be installed, owned, operated and
maintained by PGS.
Section 3.4 Transportation Service Option. CGS has stated its intent to purchase Gas from PGS
pursuant to this Agreement in lieu of receiving transportation only service for CGS's Gas, however, if
CGS elects to receive transportation only service for Gas to be delivered to customers within the
Developments, CGS shall deliver not less than 30 days' written notice to PGS of such election.
Unless otherwise agreed between PGS and CGS, on and after the day for which CGS first
Nominates a quantity of Gas for transportation only hereunder, PGS shall have no obligation to
make sales to CGS in lieu of the transportation of Gas contemplated by this Agreement. Such
transportation service shall be provided pursuant to PGS's FPSC Tariff and this Agreement.
Section 3.5 Distribution Charaes. Until such time as the aggregate annual quantity of Gas sold
and/or transported by PGS pursuant to the Agreement exceeds the minimum annual quantity
required for the applicability of PGS's Rate Schedule GS-5, CGS shall pay PGS each Month for
transportation service rendered by PGS (if CGS elects transportation service pursuant to Section
3.4), and/or for Gas purchased from PGS, in accordance with PGS's Rate Schedule WHS filed with
and approved by the FPSC. On and after such time as the aggregate annual quantity of Gas sold
and/or transported by PGS to CGS pursuant to this Agreement exceeds the minimum annual
quantity required for the applicability of PGS's Rate Schedule GS-5, such Rate Schedule GS-5 shall
become applicable to the service provided by PGS to CGS pursuant to this Agreement. CGS shall
not be liable to PGS for the Customer Charges set forth in Rate Schedule WHS until the Month in
which service hereunder is first provided by PGS under Rate Schedule WHS for each metered
location. Should PGS's rate schedule be subsequently modified as to categorize rates differently, a
comparable rate shall apply.
ARTICLE IV - BILLING AND PAYMENT
Section 4.1 Billina. PGS will bill CGS each Month for all Actual Takes during the preceding
Month, and for any other amounts due hereunder. If CGS has elected to receive transportation
service pursuant to Section 304 and, during the preceding Month, PGS has purchased Gas from
CGS pursuant to an interruption, such bill shall show a credit for the estimated amount due CGS for
such purchase(s). If the estimated amount owed by PGS to CGS exceeds the amount CGS owes
PGS, PGS shall pay CGS the net amount estimated to be due CGS at the time PGS bills CGS.
Section 4.2 Payment: Disputes. CGS shall pay such bills, minus any disputed amounts, to PGS
at the address specified in the invoice in accordance with the provisions of the Florida Prompt
Payment Act, Sections 218.70 et seqo, which shall govern the rights and obligations of the partieso
All sums not so paid by CGS (or credited or paid by PGS) shall be considered delinquent.
Section 4.3 Errors or Estimates. If an estimate is used to determine the amount due CGS for
purchases by PGS pursuant to an interruption or curtailment order, PGS shall make any adjustment
necessary to reflect the actual amount due CGS on account of such purchases in the next bill
3
rendered to CGS after determination of the actual amount due. An error in any bill, credit or
payment shall be corrected in the next bill rendered after the error is confirmed by PGS.
ARTICLE V. FAILURE TO MAKE PAYMENT
Section 5.1 Late Payment Charae. Charges for services due and rendered which are unpaid as
of the past due date are subject to a Late Payment Charge of 1.5%, except the accounts of federal,
state, and local governmental entities, agencies, and instrumentalities. A Late Payment Charge
shall be applied to the accounts of federal, state, and local governmental entities, agencies, and
instrumentalities at a rate no greater than allowed, and in a manner permitted by applicable law.
Section 5.2 Other Remedies. If CGS fails to remedy a delinquency in any payment within five (5)
Days after written notice thereof by PGS, PGS, in addition to any other remedy may, without
incurring any liability to CGS and without terminating this Agreement, suspend further deliveries to
CGS until the delinquent amount is paid, but PGS shall not do so if the failure to pay is the result of
a bona fide billing dispute, and all undisputed amounts have been paid. If PGS fails to remedy a
delinquency in providing a credit (or making payment) to CGS for PGS purchases pursuant to an
interruption or curtailment order within five (5) Days after CGS's written notice thereof, CGS, in
addition to any other remedy, may, without incurring liability to PGS and without terminating this
Agreement, suspend PGS's right to retain and purchase CGS's Gas pursuant to an interruption or
curtailment order, but CGS shall not do so if PGS's failure to provide a credit (or make payment) is
the result of a bona fide billing dispute, and all undisputed amounts have been credited or paid by
PGS.
ARTICLE VI . MISCELLANEOUS
Section 6.1 Assianment and Transfer. Neither party may assign this Agreement without the prior
written consent of the other Party.
Section 6.2 Governina Law. This Agreement and any dispute arising hereunder shall be
governed by and interpreted in accordance with the laws of Florida and shall be subject to all
applicable laws, rules and orders of any Federal, state or local governmental authority having
jurisdiction over the parties, their facilities or the transactions contemplated. Venue for any action, at
law or in equity, commenced by either party against the other and arising out of or in connection with
this Agreement shall be in a court, located within the State of Florida, having jurisdiction.
Section 6.3 Severabilitv. If any provision hereof becomes or is declared by a court of competent
jurisdiction to be illegal, unenforceable or void, this Agreement shall continue in full force and effect
without said provision.
Section 6.4 Entire Aareement: Appendices. This Agreement sets forth the complete
understanding of the parties as of the date first written above, and supersedes any and all prior
negotiations, agreements and understandings with respect to the subject matter hereof. Appendix A
attached hereto is an integral part hereof.
Section 6.5 Waiver. No waiver of any of the provisions hereof shall be deemed to be a waiver of
any other provision whether similar or not. No waiver shall constitute a continuing waivero No
waiver shall be binding on a party unless executed in writing by that party.
Section 6.6 Notices. (a) All notices and other communications hereunder shall be in writing and
be deemed duly given on the date of delivery if delivered personally or by a recognized overnight
delivery service or on the fifth day after mailing if mailed by first class United States mail, registered
or certified, return receipt requested, postage prepaid, and properly addressed to the party as set
forth below.
4
PGS:
CGS:
Administrative Matters:
Peoples Gas System
702 North Franklin Street
Po 00 Box 2562
Tampa, FL 33601-2562
Attention: Contractor Administrator
Telephone: (813) 228-1559
Facsimile: (813) 228-1268
Administrative Matters:
Clearwater Gas System
400 North Myrtle Avenue
Clearwater, FL 33755
Attention: Gas Supply & Technology Engineer
Telephone: (727) 562-4911
Facsimile: (727) 562-4903
Payment:
Peoples Gas System
702 North Franklin Street
P. O. Box 2562
Tampa, FL 33601-2562
Attention: Customer Accounting
Telephone: (813) 813-228-4149
Facsimile: (813) 813-228-4194
Invoices:
Clearwater Gas System
400 North Myrtle Avenue
Clearwater, FL 33755
Attention: Gas Supply & Technology Engineer
Telephone: (727) 562-4911
Facsimile: (727) 562-4903
Section 6.7 Amendments. This Agreement may not be amended except by an instrument in
writing signed by duly authorized representatives of both parties. A change in (a) the place to which
notices hereunder must be sent or (b) the individual designated as Contact Person shall not be
deemed nor require an amendment hereof provided such change is communicated pursuant to
Section 6.6.
Section 6.8 leaal Fees. 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 ofthe party prevailing
in such litigation shall be paid by the other party.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by
their respective duly authorized officers as of the date first above written.
PEOPLES GAS SYSTEM, a division of
TAMPA ELECTRIC COMPANY
By:
Name:
Title:
Countersigned:
CITY OF CLEARWATER, FLORIDA
By:
Brian J. Aungst
Mayor
William B. Home, II
City Manager
Approved as to form:
Attest:
Laura Lipowski
Assistant City Attorney
Cynthia E. Goudeau
City Clerk
5
MASTER MARKETING AGREEMENT
Between Clearwater Gas System & TECO Partners
This MASTER MARKETING AGREEMENT (Agreement) is made and entered into this 18th
day of November, 2004 (Effective Date), by and between TECO Partners, Inc., a Florida
corporation, with its principal place of business at 702 North Franklin Street, Tampa, Florida 33602
("Partners"), and Clearwater Gas System, a department of the City of Clearwater, Florida, a
municipal corporation organized and existing under the laws of the State of Florida, with its principal
place of business at 400 North Myrtle Avenue, Clearwater, Florida 33755 ("CGS") (each being
referred to independently as "Party" or collectively as the "Parties").
WITNESSETH:
WHEREAS, Partners is engaged in the business of marketing various goods and services
and has extensive experience in the marketing and sale of gas utility services throughout the state
of Florida. CGS is a natural gas distribution utility owning and operating distribution systems for the
delivery of natural gas to customers within its territory within the State of Florida under regulation by
the Florida Public Service Commission; and
WHEREAS, a petition of the Florida Public Service Commission will be filed to amend the
existing territorial agreement between CGS and Peoples Gas System, a division of Tampa Electric
Company ("PGS") to permitCGS to provide retail natural gas service to consumers within an area
located generally east of the Suncoast Parkway ("Parkway"). The area, includes new developments
in Pasco County, Florida, known as Bexley Ranch Land Trust ("Bexley") and Connerton LLC
("Connerton") (collectively, the "Developments"); and
WHEREAS, if the Florida Public Service Commission approves the amendment of the
territorial agreement, PGS shall deliver natural gas to CGS through meter(s) to be located near the
Developments to assist in providing such service in accordance with a Gas Supply and
Transportation Agreement between CGS and PGS; and
NOW THEREFORE, in consideration of the premises, mutual promises and obligations
contained herein, and other good and valuable consideration the receipt and sufficiency of which is
hereby acknowledged, the parties to be legally bound, hereto agree as follows:
1. Term. The Parties hereto agree that this Agreement and all duties and obligations
hereunder are wholly contingent upon amendment to that certain territorial agreement ("Territorial
Agreement") between PGS and CGS, dated May 1995, ordered by the Florida Public Service
Commission, allowing CGS to enter upon and service a portion of Pasco County territory which was
previously awarded to PGS in the Territorial Agreement and which includes the Developments along
with the valid execution of the Gas Supply and Transportation Agreement referenced above. Upon
satisfaction of the above contingencies, this Agreement shall become effective on the date first
written above, and remain in effect for a period of five (5) years, unless terminated as provided for
herein. After the initial term, this Agreement shall automatically renew for additional one (1) year
periods unless either Party shall, at least ninety (90) days prior to the end of any such annual period,
provide the other Party notice in writing of its intention to terminate or unless terminated as
otherwise provided herein.
2. ADDointment. CGS hereby engages and appoints Partners as CGS's independent
authorized marketing representative to jointly market and solicit orders from customers for the sale
of Services (as defined below) in the Bexley Ranch and Connerton Developments, Pasco County,
Florida (the "Territory"), as more particularly described in Exhibit "A" (attached hereto and
incorporated herein) and such additional developments which CGS may authorize from time to time
- 1 -
in writing. Forthe purposes ofthis Agreement, the term "Service" or "Services" shall mean the sale
of natural gas service to developers and builders on behalf of CGS.
30 Responsibilities of Partners
3.1 Sales Services. Partners and CGS shall jointly introduce, promote the sale
of, and solicit developers and builders in the Territory. Partners shall devote as much time, effort
and attention as shall be necessary for the effective promotion and sale of the Services within the
Territory. Notwithstanding anything contained herein, CGS shall be in no way limited or restricted in
performing any and all sales activities in promoting the sale of gas as contemplated hereunder
regardless of Partners performance or lack thereof under this Agreement.
3.2 Service Price and Terms. Unless otherwise authorized in writing by CGS,
Partners shall quote to potential customers prices for services that are within written guidelines
provided to Partners by CGS from time to time based on a determination that the overall cost of
implementing the proposal meets CGS's investment criteria for return on investment. Furthermore,
in proposing and selling Services, Partners shall utilize CGS's standard terms and conditions as
provided by CGS in writing from time to time and any other guidelines as directed by CGS.
3.3 Disclosure of Problems. Partners shall promptly furnish to CGS any and all
information regarding competitive marketing problems, new developments regarding current or
prospective customers, material information on customer creditworthiness, significant complaints,
comments and critical remarks from customers, and other information reasonably related to the
performance of Partners' duties under this Agreement or the provision of Services by CGS.
3.4 Costs and Expenses. Partners shall pay its own costs and expenses
associated with the promotion and solicitation of orders for Services and its performance of this
Agreement, except those expenses, which CGS specifically agrees to pay in writingo
4. Responsibilities of CGS
4.1 Marketina Materialso CGS shall provide to Partners, at no cost to Partners,
reasonable quantities of advertising and marketing literature, samples, displays, drawings, technical
literature or other data relating to Service that CGS determines appropriate to assist Partners in the
promotion of Service.
4.2 Trainina and Support Services. CGS will provide Partners' personnel with
training on the Services. CGS shall provide support and maintenance services to customers who
purchase Services in the Territory pursuant to CGS's normal business practices and programs.
5. Sales and Commissions
5.1 Submission of Sales. Partners shall submit all agreements for Services to
CGS, on behalf of all customers desiring to purchase such Services, within thirty (30) days of
completion of the sale.
Calculation of Commission. Partners shall be entitled to receive a commission of $12.00 per
home, for each home within the Developments that meet the following parameters. Partners shall
have no right to any other compensation from CGS for services rendered pursuant to this
Agreement or for the reimbursement of any expenses incurred by Partners, unless authorized in
writing, in advance, by CGS.
(i) Home is within the applicable development area as agreed to in writing
between Partners and CGSo At this time, the two developments to be
- 2 -
included for purposes of calculation of commission are Bexley Ranch and
Connerton ("Customer").
(ii) Commission is payable based upon the number of homes that developer or
builder commits to build with at least 4 drops for natural gas appliances,
specifically, installed water heating and furnace along with the necessary
piping to permit the installation of a gas range and clothes dryer ("Compliant
Home").
(Hi) CGS will pay this commission amount to Partners over a 5-year period as
follows:
a. One-sixth, or Two Dollars and 00/100 ($2. 00), per committed Compliant
Home to be paid to Partners upon execution of the Developer Agreement,
based on the number of Compliant Homes represented as slated for
development under each Developer Agreement.
b. One-sixth, or Two Dollars and 00/100 ($2. 00), per committed Compliant
Home on each annual anniversary date of the execution date of each
Developer Agreement, thereby fulfilling the commission payment obligation
hereunder at the five year anniversary date of each Developer Agreement.
5.3 Monthlv Reports. CGS shall provide Partners with reports on or before the
fifteenth (15th) of each month summarizing all sales activity for the previous month, and the payment
schedule summarizing commissions due on such saleso
60 Termination. This Agreement may be terminated as follows:
(i) By the mutual written agreement of CGS and Partners.
(ii) By CGS effective upon receipt of written notice to Partners, if CGS
determines that Partners: (a) is in material breach of any of the terms of this
Agreement, or (b) is involved in insolvency proceedings, receivership,
bankruptcy, or assignment for the benefit of creditors. In this case, Partners
shall only be entitled to receive commissions on agreements sold and
executed prior to the date of termination.
(iii) By Partners effective upon receipt of written notice to CGS, if Partners
determines that CGS: (a) is in material breach of any of the terms of this
Agreement, or (b) is involved in insolvency proceedings, receivership,
bankruptcy, or assignment for the benefit of creditors. In this case, Partners
shall only be entitled to receive commissions on account agreements sold
and executed prior to the date of termination.
(iv) Notwithstanding anything herein to the contrary, all Customers solicited or
secured hereunder shall be and remain customers of CGS and, accordingly,
CGS shall have the right at all times, including after termination or expiration
of this Agreement to maintain its relationship and service with said Customer.
In addition, CGS shall retain the right to solicit and execute orders from any
and all organizations or persons, including customers who had previous
contact or communications with Partners, without liability of any kind to
Partnerso
7. Limitation of Remedies. Partners shall have no claim (including, but not limited to,
any claim based on CGS's failure to effectuate service or conclude a sale of Services for any reason
- 3 -
whatsoever, including the fault of CGS) against CGS for compensation or otherwise, either during
the life of this Agreement or after termination, except for commissions as expressly provided for
herein. Commissions provided hereunder shall constitute Partners' sole right of recourse and
CGS's sole liability hereunder. IN NO EVENT SHALL CGS BE LIABLE TO PARTNERS OR ANY
OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES
ARISING OUT OF THIS AGREEMENT.
8. Relationship of Parties. Nothing in this Agreement shall be construed to constitute
Partners as a franchisee, partner, broker, employee, servant, or agent of CGS, nor shall either party
have any authority to bind the other in any respect. Each shall remain an independent contractor
responsible only for its own actions. Partners shall not, without CGS's prior written approval, alter,
enlarge, or limit orders; make representations or guarantees; or create any obligations or
responsibilities, express or implied, on behalf of CGS or in CGS's name. Partners shall not have the
authority to bind CGS by contract, nor in any way to incur obligations of any kind on behalf of CGS,
shall not represent itself to any customer or other person as having any such authority, and shall
take no action that would lead any customer or other person to believe Partners has any such
authority. Partners has no license to use or refer to the CGS name in its literature, business cards,
stationery, and the like without CGS's express written consent. Partners will control all means and
methods incident to the performance and completion of the solicitation of orders, and CGS will not
exercise direct control over the amount of time that Partners shall devote to the solicitation of orders
or the methods used by Partners in doing so. Partners shall be free to set its own hours and
appointments.
9. Indemnification. Partners shall indemnify and hold CGS harmless from all claims,
demands, actions, liabilities, suits or damages resulting or arising out of Partner's negligent
performance of its obligations hereunder. CGS shall indemnify and hold Partners harmless from all
claims, demands, actions, liabilities, suits or damages resulting or arising out of CGS's negligent
performance of its obligations, or services, hereunder. Notwithstanding anything contained herein to
the contrary, this indemnification provision shall not be construed as a waiver of any immunity to
which CGS is entitled or the extent of any limitation of liability to pursuant to ~ 768.28, Florida
Statutes. Furthermore, this provision is not intended to nor shall be interpreted as limiting or in any
way affecting any defense CGS may have under ~ 768028, Florida Statutes.
10. Service Continuation. CGS shall make reasonable efforts to continue to sell and
perform the Services to customers identified by Partners. In the event this becomes impracticable,
CGS shall inform Partners of changes in Services and plans to discontinue the sale and
performance of the Services as soon as practical.
110 Dispute Resolutiono In the event a dispute arises between the parties regarding the
application or interpretation of any provision of this Agreement or any matter pertaining to
transactions contemplated by this Agreement, the aggrieved party shall notify the other party in
writing of the nature of the dispute within 10 days after such dispute ariseso If the matter cannot be
resolved informally within 10 days after the receipt of such notification, the dispute shall be referred
to a meeting between a designated representative of each party not otherwise involved in the
administration of this Agreement, which representatives shall be fully authorized to resolve the
dispute. This meeting shall occur within 10 days of the referral. If the parties are unable to resolve
the dispute within 15 days after the meeting has occurred or if the meeting does not occur, then
each party shall have the right to pursue any and all remedies available at law or in equity.
12. Notices. Any and all notices and communications permitted or required to be given
hereunder shall be deemed received: (a) upon actual delivery, if delivery is by hand; or (b) upon
receipt by the transmitting party of confirmation of delivery by facsimile (c) one (1) business day after
delivery by a recognized national overnight courier, postage prepaid; or (d) three (3) business days
after delivery into the United States mail if delivery is by postage paid registered or certified return
receipt requested mail. Each such notice shall be sent to the respective party at the address set
-4-
forth below or at any other address as the respective party may designate by notice delivered
pursuant hereto.
If to CGS:
Clearwater Gas System
400 N. Myrtle Avenue
P.O. Box 4748
Clearwater, FL 33758-4748
Attn: Managing Director
Fax: 727-562-4903
If toPartners:
TECO Partners, Inco
702 N. Franklin Street
P.O. Box 111
Tampa, FL 33602
Attn: Director of Growth & Development
Fax: 813-228-1527
13. General. Neither party may assign or subcontract all or any part of this Agreement
without the prior written consent of the other party, and any such attempted assignment or
subcontracting shall be null or void. No term or condition ofthis Agreement shall be deemed waived
by CGS unless such waiver is in writing signed by an authorized representative of CGS. This
Agreement shall be governed by and interpreted solely in accordance with the laws of the State of
Florida without giving effect to any conflict of laws provision thereofo Each of the parties hereby
submits to the exclusive jurisdiction of the federal court for the Middle District of Florida, and the
state courts of Florida. If any of the provisions of this Agreement in any way violate or contravene
any laws applicable to this Agreement, such provisions shall be deemed not to be a part of this
Agreement and the remainder of this Agreement shall remain in full force and effect. CGS shall not
be liable for any failure or delay in performance due to any cause beyond its control. The captions
of sections herein are intended for convenience only, and the same shall not be used in any way to
interpret the content of such section. No change, modification or alteration of this Agreement shall
be binding or effective unless it is in writing and properly executed by authorized representatives of
both parties. This Agreement constitutes the entire Agreement between the parties with respect to
the subject matter contained herein and supersedes any and all other agreements, whether oral or
written, between the parties with respect to this matter.
-5-
IN WITNESS WHEREOF, the parties have caused their authorized representatives to
execute this Agreement on the date set forth above.
TECO PARTNERS, INC.
By:
Name:
Title:
Countersigned:
CITY OF CLEARWATER, FLORIDA
By:
Brian J. Aungst
Mayor
William B. Horne, II
City Manager
Approved as to form:
Attest:
Laura Lipowski
Assistant City Attorney
Cynthia E. Goudeau
City Clerk
- 6 -
EXHIBIT A
TERRITORY
(We propose to use the Exhibit A for the new East Pasco area vs. the full Pasco
territory map being prepared for the FPSC territorial agreement)
- 7 -
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...,n~A~~P11CH a niE Ce'Va.CP5.CENT SfTE. !Ncu.ce ~.lC~
AND AANGI!.. . 0 .
'" i'MCa.. a: L.ANDJ...C.C,.\n:g ANO L. "'flNG IN SECTlO'iS 2 ANO 11. TQWHSHlP ~ $OUTH. .
MHGI. ~7lAST.I'^SCO ecUNl'Y. ~,o'" tYfNG NORTHOF STATI ~OAC NO. i2 ANC'MIT
OF HAYS ROAD AND EAST OJif rHf Fl.ORlCA ~ CCRPOAATICN PVGril'.OI'.W.4VIIlNG
-..C;I1<< iJAlt"nCUlAR&"Y OESC'lIBEO AS fOUOwa:
P"RCM THS COMWONceFtNCROF seC'nONS l. 2. l1 AND 1.2. TOWNSHJP21 3CUTH. RANG!
17 ~, "Aeco COUNTY. Jl'\.OAJOA. A3 A FO$N1' O~ i\Er~, lHINCZ .....4ICTW.
Al..ONa "THe seurH UHf OJ' SAle seQleN a. ~ UN&' ALSO KING THI! NCAfM UNE CF
$AIO $;!cnCN ~ 1. ~.a, FEU lOTHE W.ST!Rl'f RiGHT ~..WAY UNEOF HAYI OOAD fA.
RN1l "'3 fT NOW ~ FOR A POINT 0" aEGlN~NG; "THaNe:: ~.OO"W, A.LOHe $NO
W8$1'E8LYfl/W UtE. 644..24 FlIT TO ITS JNTER$iCTiON wmt THe NQmtI:N.'1
AIGHT.oF.WA'Y UNI 01" SAlO$TA"'1 ~ NO. $2 (A 1CO"RIW): TH&Nassrl~.22"'N.J4CH<a
$,It'D NOftTHOlY RIQHT -CF..WA Y UN(! 1.248.01 '-_G"f; THINCZ ALONG rwE &Ati"n!AL Y UN.
el'TME PROPoseD SUNCOAST RtG~.eF.WAY UN& N14.12'11~ I.XIC.OO PiIT:n;&NC!
l!AVfNQ SAlO AlGHr .QF.WAY UNE SOO~"'24"Z. 548.93 FEET: TH.~~'40"I.~.QO"~
TO THE '.o.a.
CCNTAlNlNG aJ.... AOlES. MoaEOR U!$$.
Al'O~
FAOM 1J.i! .COMMCN CC$lNeii os: 51:C1lCNS 2. ~ 10 ANO t 1. TCNNS'flP ~ SO~ ~G2
1 "l!AST. PASCOCOUNTY.1l0RlQAASAX)INT or ~ THf:NC2 ~14'~.~NG
THe. WEST UNE OP SAfo SeCTION! " $AID UHE ALSO saNG THE !AST UNE CP'$!CTICN 10.
..077.$f$ ~ET TO THE $OVTHI!RL.Y RtGHT.of.WAY UNE .oF aAlO $TA"tIIIOAONO. U fA '00'
RfW). fOR A POINT OF a!GINN.NG~ THeNelI\\.ONG S,liD .sOUJ'toCiRLY AIQ-IT -OPWAY UNE
BY THE l'Ou.owJNG FOUR (4) COURseS AND 0lS1 ANas: 1) T11fNca S8lr2l'2T'2. 448.14
FL"1'; 2) THENCi tJ71.38 fl'esr ALONG THe ARC OF A CURVE TO 1'ME LEFT H"vtNG A l'fADJUS
0' 2.341.83 FEFT. Q-tORD SlW42':)6",Q,. ~..$iJ FEn;~) THENCZ Ne2"S'a"l. ',.....$7 fl5ET:
4) miNe! 47.82 FEST ALONG TH.E ARC OF A CUA\lE TO tHe RtGHTHA\itNG A AAClUS OF
22.8e8.~1 FeET. QiORO N~"O""E, 47,82 F~!T TO THE INTe.A$IC7ICN OF SAID SOU'J'HEftLY
RIGHT.OF.WAY UNE .4.NC THE WEST~L y BOUNDS OF THe flO$UOA POWER COItP<')RAl1CN
RlQiT.CF,WAY A$ ~ECCfiCom IN O.R. BOOK tse. PAGES.34 ANO 3S, PU8UOMCC)ac80F
PASCO COUNTY. 'lORIOA; THf!HC~ S'4.12"11'W, .ALONG SAID WESTlRl..Y' R'GHT.qF'WAYUNl!.
~4t,J2. fa Fur TO A POtNT ON THe weSTERLY UN!! OF THe NOJm1EAST ..~ /. ..cw. ""0
SECTtON;J4: THelC! NOQ.,U'OS"C. At..ONGSAJO UN~. 1.573.44 FHT TO THe SQVTHWIST
COANeROF THE SOUlHE.A$T 1/4 OF SAI) ~eC1'JCN 27; THfNCZ ALONGTH~NOfl'rl'I1l'~'"
C!NTeRUNI OF GAll') SeCTIQN ar, NOQ.l t'03~, '.283.047 fe5TTO 'DE ~TCOANE"
01' me SOU11-fWEST 1/4 0' SAID SeCtioN 22: TH~ SW$8'3$"W. 1.~.20 PIEr TO lHE
sotJl11Wesr OOAHU OFTHt'; $CVTHeAST '/4 Of THe SOUTHweST 1/4 QF..SAIQ.aeCT1CN
22;THfNC2 NOQt2fj#Ol"'E. 5.~7.$8 FaIT .ro THE SOUTHWEST COftNat OF TH.SQf.1TMltUT
1/4 OF TM! SOUTHWEST 1/4 OF SAIO Sc:cnOH 15; THeNC! N01~'tl.e. 2.$14.80fE~TQ
THe SOUTHwEST CQRNeR OP THE' SOUTktWJT '/4 OF TH&NOATHWeSr 'I.OP~O
seCf10N S5; THEHC2 NOQ"Ot'~o"e.2.S$3.ge fEET TO THt!! SOU'l'HW"eSt' OOftNER0" lHC
SOUTHI!A$T 1/4QFTHI' SOUTHweST 1/4 OFSAlOSECTJON 10; THfNc&N0Cr3r~. . ~
FfiET TO lHI NORTHWeST t/4 OP'THE SOUTHEAST 1'" OF THe NOfiIl'HWEST tl4 ..;.,0
SECTION 10~ Tl1INCE N88":S0'oa"e. 1.333:410 F~!T TO THe NCRTHIASTCORH"'i"1'HC
SOUTHftAST 1/4 OF THE NORTHWeST 1/4 OF SAJO SECTION 10: THENCI NQO'24'29W,ALCNG
THe NORTH/SOUTH C1!:NTtAUNE OF SAID secnON 10. 164.70 RET TO lHE INT.....EC1'1ON
OF $.AJC UNEANO THE SAlO SOUTHeR\.. Y ~(GHT ..op.WAY OF $rAT~ROAO $2: Tl'iENC:E ALONG
$AlO fltGHT-oF,WAY UNIi 8Y THa POLLOWtNG FQUA .(4) eOUA&S .ANQ DlstAHQi$. t)
THeNCZ a".59 FeeT .Al.ONG THE ARC 01' A CUfl'Ve TO n-tl. t..EfT CONCAve. 1'0 THE
NOR.HeJ\$T. MAW<<;,I. RADIUS OF a.041.~ fEET, CHORD ~"SQ"". 022.14 FEET; 2) THENCZ:
S17"~'0$'1!. SQI.at fi!l!T: 3. TMrNa 570. 7~ PElT AlONG THE AIle 01' A CUAVETO THE lZJl"l'
1 of 3
....AVtNG AflACIUSCf t 1.!09. ~6'E!T. CHCPCQ~~'46k!:tS;a66Ft;!'T; 4) ~~'2ra
325.1. .R;eT TO THe PCINT Of eeOINHING.
CCHT~NG 1.1fJO,.e1 ACRES. MC~I OR UiSS.
~:
A ~ARCa Of LAND t,,:fiNG wrTH sccnONS 2~ AND POfUK)NS OF 11. 13. 14. 22. ~. ~ :d. %1
/loNO ~ TOWNSHIP:' $OVTH. ~ '7 lASt, PASCO COUNTY, FLORIDA. .'NO MCR! -
PAA11CULARLYDE$QQHP Jl$ Fcu..O~ .
3ZG1N ,\T THE NOPm-4u.3T.COANal Cl'MlQ seCl1CN:J6: TMeNCJ: SOO"Qf$ill"W. AlONGTHI!
~$TtU\Ly UNE CFSAJO $eonoN s. 3.460.e4 ~EeTTO THE NeRTHEJ:tLY RtGH1Q.WAY UNI!
Cfl11i1f f'f'CPQSEO SVNCOAST aPftllG$WA'ti TH~ A&.CNG. SAID NCJlI'I'HrIftlY JUGHt-
OP.wAY. UNE av A NQN,:rANGENr CUJINI. SAle OJRWHA"fNG A RACIJS e'5.11O..RD
AND A C""'d'4TRAL. ~ OF !a.10~1.; THiNC2 NORTMIJIIlL'Y ALOtfG l"JoMr AAOOf $AID CVAVI
10 THe U:Fr. It. C'STAN~ ~At 1UT. (C>-tORO at!.ARlNGN47'Oi';4"W. OC'f1I)U!.NGtH
4.iQ.;aFEET); THfNc.! N7'4.40'4i"W. ~.014.84 FE-1C'f 10 THI POINT 0' CURvAl'UPlI Of' A
CURV!.. SAtD ctfR\A: HAVING A RADIUS cP' 2.715AO Fa;:T ANO '" cem:w. ANGLfOF ~'OO-;
THI.NC! WiS11!Rt,.y ..u.ONG THe AAC OF SAID CUAVf! TO 11iE RIGHT, A OUiTNa<0I'$lf7.11
Far. (QiCRO 8EA'UNQ Nt)4<14(j'49"W. CHORe Le'NG'TH 942.$1 Fe5'1'); THEHCI N$4-AQ"oI&O"N.
4.594.82 FEET TO THe PCtHI" OF CURVATURE OF A CURVW,SAfO OJftVI HAVING A RAC'U.
OF ~:)!O.oo FEET ANO A~NTRAL ANGle opt G8~'OO"; THENC2 NOftTHMSTERLY AL~
THfi MtC CF SAID CUR'!! TO THE 1IIG,"". A. otsr.~a Of' --,027.' 1 F!!T1 (CHORO liAR'f.4Q
N2Q"14'19"W, CHORO U!NGTH 3.7es.~ FlET); THENa Nt4.1Z'11-E, 141.&31.. FEET TO THe
SC{JTHt!Mt.'f Rlm-tT-OF'.WAY UNe Cte STATS~OAO NO. 52: rtot!N~~l$~.lWNG SAlO
SOUTHERl..YAIGHT..of-WAY ~.S27.~F~; THEN~~"ING SAlOFilGHT ~F-WAY~O~'2.
4.S95.~7 FEET: Tl'1ENCE 589-44'43"5., 15.58 FEET; THINe! S30'12"45"'W. eo3.03Pe1'. ~
S6a'31'2a'W, 1.02t.Q1 FE....s:-r~ TI'ieNQE St$"42'~"2, 921.04 1W; THfNC2 H7S"u'3:t"i!.a.044."
F2!!T~ THe~ S3rzs'so"'e, 2.500.~ ~!T; THE~ Nl44f51'1.tiE, 1.!S9,:J3 rerr~ ~
562"04'14)"2. 1.0&1.30 FeET; THENCE N83"'43'OO"S~ 738.'SFE5TTO THE eASTlRLY UNE OF SAiD
$ECTION t~: THfNC3 SOQ"Oa'54'W ALONG THe ElSTSAL. Y UNE:. 0' SAle $ECl1ON$ 13. 2. AND
25. 1:1.22'..2 f'!!T TO THE POiNt OF BEGINNING.
co NT ;'lINING 3..600.050 AatES OJ: l..ANC. MORE OR LSSS.
l.!$S THE weST 1/2 os; THE NORTHItAST 1/4 OF SiiCTJON 15. 'TOWN:iHIP 2S SOUTH. AAHGI
t 1 ZAlT. CONT AJNtNG ao ACRes MOItE OR LESS. . .
~S3 1l1E SOUl'l-tEAST t/4 OF TMI NORTHEAST 1/4 a: THE 80~EAST 1/. ANa THe
NORTHEAST 1/40J'nie.sOUiH~ST l/"OFTHM scvrloiEAST 1/040FSECflON \4. TCWN1JHIP
Z$ SOvrH. RANGe 11 CAST, CONTAiNING 20 Ac~eS MORfi OR \.2S8.
ALSO:
!4. I'ARcel. OF LAND SEINGPOA"tIO.NS OF &eC1lON$ 26. 27. ~. ~ ANa 38. TOWNaHlP 20
SOUTH. flANGli l7 eAST. PASCO COUNTY. FtORICA. BilNG MOAt; ,./YmCULAA1.YOI$Q\U'eo
AS FOU-OWS:
efGIN AT Tt1E SOUTHEAST CORNeA 0" SAID SECTION 36; lHeN~ 'NIJ/IYSt'IJZ'W .M.ONG THe
SOUT'H.Rl.V UNE OF SAle SeCTION ~a. $.294..aG FEET TO THE SOUTHEAST CORHSRcrr $Ad;)
SECTION ~; THENCS N8S'58'2Z'W AlONG. THE $OUTHStL.Y UNE OF s.AtOSeOTJOH 36,
5.:)00.80 Feer TO THE SOUTHEAST CCRNER OF SAID $iCTfON ~: THENC!"'T$rYt
ALONG 11-41 SOUTHERl. Y UNE OF SAID $!CTlON 34. ~.OO FEET; THiNelt..EAVlNGSAlD
SOUTMEAL Y UNE NOO"02'Q4W.a20.00 fE!T. THENCl NW'$TA"1;, 5::1.01 Fe~ro. 1....
EASTI!RLY UNe 0': SAtO 3EcnON ~"; THENce NOO.'.'oI(rf! AlONG !AID EASTEN..Y UHI!.
2.0.40.00 FeET; 'fHe:NC~ lEA'ttI'NG SAlO UNe N31 ~a'oa...,... 1,Q43.OBPlltfT;'THJ:'NCi ~nsa"'W.
no.oo '.ET; THENCii ~9"23''fO'W. .J03.:n ~&E.T; Tt1eN~ ~11'06"W. ~13;2" .R!T TO TH.
eASTeRL.Y UN. OF A FLORIOA ,.OWER AI(lMT-'OP:.WAY UN~ Aa "I!COAoeD INOPPt~
RfCCRO SOOK Z&t7. PAGES 34 AND as OF THE PU8UC ft(COROS ar ,~ COUNTY.
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FIRST AMENDMENT TO AGREEMENT
This First Amendment to Agreement (this "First Amendment") is made' and
entered into this 18th day of November, 2004, by and between Clearwater Gas
System, a department of the City of Clearwater, a Florida municipal corporation
("Clearwater"), and Peoples Gas System, a division of Tampa Electric Company
(successor by merger to Peoples Gas System, Inc.), a Florida corporation ("PGS"), to
amend certain provisions of the Agreement dated March 17, 1995, between Clearwater
and PGS (the "Agreement"). Clearwater and PGS are sometimes referred to singularly
as "Party" and collectively referred to as "Parties."
W!I N E SSE I H:
WHEREAS, Clearwater and PGS have heretofore entered into the Agreement, a
copy of which is attached hereto, for the purpose of avoiding uneconomic duplication of
facilities used to provide natural gas service to the public within Pasco County, Florida;
WHEREAS, the Agreement was approved by Order No. PSC-95-0620-AS-GU
(Docket No. 940660-GU), issued by the Florida Public Service Commission (the "PSC")
on May 22, 1995;
WHEREAS, because of the manner in which the Natural Gas facilities of the
Parties have developed, it is desirable that Clearwater provide Natural Gas service to
certain areas designated in the Agreement as PGS Territorial Area;
WHEREAS, in fulfillment of the purposes and desires aforesaid, and in
consideration of the mutual covenants and agreements herein contained, which shall be
construed as being interdependent, the Parties, subject to and upon the conditions
herein set forth, hereby agree as follows:
1. Section 1.2 of the Agreement is hereby amended to read in its entirety as
follows:
Section 1.2 Clearwater Territorial Area As used herein, the term
"Clearwater Territorial Area" shall mean the areas labeled Clearwater Gas
System Pasco County Service Area on First Revised Exhibit "A" to this
Agreement, which areas are more particularly described as follows:
The OriQinal1995 Clearwater Territorv:
(a) Beginning at the Gulf of Mexico at the northwest
corner of Section 30, Township 25 South, Range 16 East and then
running easterly along the section lines approximately 0.5 mile
north of Ridge Road to the westernmost property line of the
frontage property along the western side of Little Road and then
generally northerly along the westernmost property lines of the
frontage properties along the western side of Little Road to the
centerline of SR 52 and then generally easterly along the centerline
of SR 52 to the easternmost boundary of the Serenova
Development, intersecting at the centerline of SR 52. The following
the eastern and southern boundary lines of the Serenova
Development (the legal description of such Development being
attached hereto and made a part hereof as Exhibit "B") and then
westerly along the southern boundary of the Serenova
Development to the northeast corner of Section 2, Township 26
South, Range 17 East and then southerly along the east line of
Section 2, 11, 14, 23, 26 and 35 of Township 26 South, Range 17
East to the Hillsborough/Pasco County line, then westerly along the
Hillsborough/Pasco County line to the Gulf of Mexico.
(b) All parcels of property adjacent to the western right of
way of Little Road within the area described in paragraph (a)
above.
The Added 2004 Clearwater T erritorv:
(c) Beginning at the easternmost boundary of the Original
1995 Clearwater Territory described in paragraph (a) above at the
centerline of SR 52 near Hays Road, then easterly along the
centerline of SR 52 to the centerline of Ehren Cutoff Road (CR
583); then southerly along the centerline of Ehren Cutoff Road (CR
583) to the centerline of Land 0' Lakes Boulevard (US 41); then
northerly along the centerline of Land 0' Lakes Boulevard (US 41)
to the centerline of Little Lake Thomas Road; then southwesterly
2
along the centerline of Little Lake Thomas Road to the centerline of
Tower Road; then southwesterly along the centerline of Tower
Road to the east section line of Section 16, Township 26 South,
Range 18 East; then south to the southeast corner of Section 16,
Township 26 South, Range 18 East; then west to the northeast
corner of Section 20, Township 26 South, Range 18 East; then
south to the southeast corner of Section 20, Township 26 South,
Range 18 East; then west to the northwest corner of Section 30,
Township 26 South, Range 18 East; then continuing west to the
northwest corner of Section 25, Township 26 South, Range 17
East; then north along the west section lines of Sections 24, 13, 12
and 1, Township 26 South, Range 17 East to the northwest corner
of Section 1, Township 26 South, Range 17 East; then east along
the north section lines of Section 1, Township 26 South, Range 17
East and Sections 6, 5,4, 3 and 2, Township 26 South, Range 18
East, to the centerline of Land 0' Lakes Boulevard (US 41); then
northerly along the centerline of Land 0' Lakes Boulevard (US 41)
to the centerline of State Road 52. When reference is made to the
centerline of a road, it is intended that adjacent parcels on both
sides of the road be included within the Clearwater Territorial Area.
(d) A corridor in Section 30, Township 26 South, Range 18
East from the intersection of the centerline of SR 54 and the
centerline of the future entrance road to the Bexley Ranch property,
northerly along the centerline of the future entrance road to the
Bexley Ranch property to the northern boundary of Section 30,
Township 26 South, Range 18 East. Said corridor shall include all
parcels on the easterly side of the future entrance road to the
Bexley Ranch property and all parcels on the westerly side of said
entrance road, but excluding all parcels adjacent to SR 54.
If there is a conflict between the boundaries of the Clearwater Territorial
Area set forth in this Section 1.2 and the boundaries of the Clearwater
Territorial Area as depicted on First Revised Exhibit "A" to this Agreement,
the boundaries set forth in this Section 1.2 shall govern.
2. Section 1.3 of the Agreement is hereby amended to read in its entirety as
follows:
Section 1.3 PGS Territorial Area
As used herein, the
term "PGS Territorial Area" shall mean the areas labeled Peoples Gas
3
System Pasco County Service Area on First Revised Exhibit "A" to this
Agreement, such areas consisting of all areas within Pasco County which
are not located within the Clearwater Territorial Area described in Section
1.2 of this Agreement. If there is a conflict between the boundaries of the
PGS Territorial Area set forth in this Section 1.3 and the boundaries of the
PGS Territorial Area as depicted on First Revised Exhibit "A" to this
Agreement, the boundaries set forth in this Section 1.3 shall govern.
3. Section 1.8 of the Agreement is hereby amended to read in its entirety as
follows:
Section 1.8 Territorial Boundary Line As used herein, the
term "Territorial Boundary Line" shall mean each of the boundary lines so
labeled, designating the dividing line between the areas shown on First
Revised Exhibit "A" to this Agreement, which boundary lines are more
particularly described in Section 1.2 of this Agreement.
4. Exhibit "A" to the Agreement is hereby deleted, and First Revised Exhibit
"A" attached hereto is hereby substituted therefor.
5. Except as modified by this First Amendment, the Agreement shall continue
in full force and effect.
6. The provisions and the Parties' performance of the Agreement, as hereby
amended, are subject to the regulatory authority of the PSC, whose approval of the
Agreement, as hereby amended, shall be an absolute condition precedent to the validity,
enforceability and applicability of this First Amendment and of the Agreement as hereby
amended. This First Amendment shall have no force or effect whatsoever until such
approval has been obtained, and the Parties hereby agree to jointly petition the PSC for
4
such approval. This First Amendment shall become effective on the date of expiration of
the appeal period following the issuance by the PSC of an order approving this First
Amendment and the Agreement as hereby amended. In the event the PSC declines to
approve this First Amendment, the same shall be of no force or effect, and neither Party
shall have any claim against the other arising out of this First Amendment.
IN WITNESS WHEREOF, the Parties have caused this First Amendment to be
executed by their respective duly authorized officers as of the date first written above.
PEOPLES GAS SYSTEM, a division
of Tampa Electric Company
By:
Mary Jo Pennino
Vice President - Energy Delivery
Countersigned:
CITY OF CLEARWATER, FLORIDA
By:
Brian J. Aungst
Mayor-Commissioner
William Horne
City Manager
Approved as to form and
Legal sufficiency:
Attest:
Pamela K. Akin
City Attorney
Cynthia E. Goudeau
City Clerk
5
BEFORE THE FLORIDA PUBLIC SERVICE COMMISSION
In Re: Joint Petition for approval of
amendment to territorial agreement
in Pasco County, by Peoples Gas
System and Clearwater Gas System,
a department of the City of Clearwater
DOCKET NO.
Submitted for Filing:
11- -04
JOINT PETITION
Petitioners, Peoples Gas System ("Peoples") and Clearwater Gas System, a
department of the City of Clearwater ("Clearwater Gas"), by their respective undersigned
attorneys and pursuant to Section 366.04(3)(a), Florida Statutes, and Rule 25-7.0471,
Florida Administrative Code, jointly file this petition for an order approving an amendment
to the territorial agreement between Peoples and Clearwater Gas attached hereto as
Exhibit 1, and in support thereof state as follows:
1. The names and mailing addresses of the petitioners are:
Peoples Gas System
P. O. Box 2562
Tampa, Florida 33601-2562
Clearwater Gas System
400 North Myrtle Avenue
Clearwater, Florida 33755
2. The names and mailing addresses of the persons authorized to receive
notices and communications with respect to this petition are:
Ansley Watson, Jr., Esq.
Macfarlane Ferguson & McMullen
P. O. Box 1531
Tampa, Florida 33601-1531
Angela Llewellyn
Peoples Gas System
P. O. Box 2562
Tampa, Florida 33601-2562
William J. Peebles, Esq.
310 West College Avenue
Tallahassee, Florida 32301
Chuck Warrington
General Manager
Clearwater Gas System
400 North Myrtle Avenue
Clearwater, Florida 33755
BACKGROUND
3. In 1994, in Docket No. 940660-GU, PGS initiated a territorial dispute against
Clearwater Gas because of the plans of both parties to expand their natural gas distribution
facilities in Pasco County. The parties ultimately were able to resolve that territorial dispute
through a comprehensive territorial agreement defining the service areas of the parties
within Pasco County (the "1995 Agreement").
4. The Commission approved the 1995 Agreement in Order No. PSC - 95-0620-
AS-GU, entered May 22, 1995, finding that "the territorial agreement is in the public
interest, and its adoption will further our longstanding policy of avoiding unnecessary and
uneconomic duplication of facilities." The 1995 Agreement is appended to the referenced
order as Attachment A (pages 9 through 23 of the order).
5. Since the approval of the 1995 Agreement the parties have provided natural
gas service within their respective territories pursuant to the terms of the agreement and
there has, in fact, been no unnecessary and uneconomic duplication of facilities.
6. Natural gas service has been requested to areas allocated by the 1995
Agreement to Peoples, but located adjacent to territory allocated by the agreement to
Clearwater Gas. Because of the way in which the facilities of the two parties have
developed, it would be more economical for Clearwater Gas to provide service to these
proposed developments.
7. Peoples and Clearwater Gas have entered into an amendment (the "First
Amendment," a copy being attached to this Joint Petition as Exhibit 1) to the previously
approved 1995 Agreement to permit Clearwater Gas to provide service to these
developments.
2
RELIEF REQUESTED
8. Petitioners seek the Commission's approval of the First Amendment to the
1995 Agreement in accordance with Section 366.04(3)(a), Florida Statutes, and Rule 25-
7.0471, Florida Administrative Code.
9. The Commission's approval ofthe First Amendment is a condition precedent
to the effectiveness of the amendments to the 1995 Agreement contained therein.
10. Each of Peoples and Clearwater Gas represents that approval and
implementation of the First Amendment to the 1995 Agreement will not cause a decrease
in the availability or reliability of natural gas service to existing or future ratepayers of either
Peoples or Clearwater Gas.
11. Petitioners submit that the Commission's approval of the First Amendment
will permit the parties to continue to avoid the future uneconomic duplication of facilities,
will permit the party best suited to provide service to the development which has recently
requested service to provide such service, and is therefore in the public interest.
WHEREFORE, Clearwater Gas and Peoples respectfully request that the
Commission enter its order approving and adopting the First Amendment to the 1995
Agreement.
3
DATED this _ day of November, 2004.
ANSLEY WATSON, JR.
Macfarlane Ferguson & McMullen
P. O. Box 1531
Tampa, Florida 33601-1531
(813) 273-4321
WILLIAM J. PEEBLES, ESQ.
310 West College Avenue
Tallahassee, Florida 32301
(850) 681-7383
Attorney for Clearwater Gas System
Attorneys for Peoples Gas System
4
APPENDIX A
CLEARWATER GAS SYSTEM/CITY OF CLEARWATER
DEVELOPER AGREEMENT FOR NATURAL GAS DISTRIBUTION SERVICE
This Agreement is entered into this 2nd day of December 2004, between Clearwater Gas System, a
department of the City of Clearwater, Florida a municipal corporation organized and existing under the laws of the
State of Florida, hereinafter called the "CGS" and, CONNERTON LLC hereinafter called the "DEVELOPER".
RECITALS
WHEREAS, DEVELOPER represents that it is constructing for sale, among other things, approximately
Six Thousand (6,000) attached and detached single-family residential homes and associated common facilities (the
"Project") in a Development of Regional Impact (DR!) located in parcels Village Area 1,2,3 & 4 to be known as
Connerton, located in portions of Township 25, Ranges 18 & 19 and as will be recorded in the Official Records of
Pasco County, Florida, as attached hereto and incorporated herein as Exhibit "A", describing the boundaries of the
Project by legal description as created and provided by the DEVELOPER; and
WHEREAS, DEVELOPER, for itself and on behalf of the future owners of residences in the Project,
desires to have natural gas service available within the Project; and
WHEREAS, CGS desires to install a natural gas distribution system within the Project subject to the
amendment to various agreements as provided for below, and the completion and final approval of CGS's
feasibility report, and DEVELOPER has agreed to permit CGS to install such a system within the Project,
pursuant to the terms and conditions hereinafter set forth. CGS understands that this Project may be built in
multiple phases, (singularly "Phase", or collectively "Phases"), each of which will be subject to CGS's
feasibility requirements. In line with each Phase meeting CGS's feasibility requirements, the Project as a whole,
must meet CGS's feasibility requirements. In addition to any other remedies provided for herein, CGS reserves
the right, in its sole discretion, to proceed with each Phase as each Phase is approved as to feasibility; and
WHEREAS, the Parties hereto agree that this Agreement and CGS installing and servicing the Project
as contemplated hereunder is wholly contingent upon an amendment to that certain territorial agreement
between Peoples Gas System ("Peoples") and CGS, dated May 1995, ordered by the Florida Public Service
Commission, allowing CGS to enter upon and service a portion of the Pasco County territory (including the
subject parcel), previously awarded to Peoples, in conjunction with the execution of a proposed Gas Supply
Agreement, to be executed more or less simultaneously herewith, between Peoples and CGS, which will provide
for gas supply to the Project.
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, CGS and DEVELOPER
hereby agree as follows.
1. Recitals. The foregoing recitals are true and correct and are incorporated in and form a
part of this Agreement.
2. Gas Distribution System.
2.1 Installation of Gas Distribution System. CGS agrees to install a natural gas
distribution system within the Project, including all necessary distribution lines, meters and ancillary facilities
(collectively, the "System") necessary to provide natural gas service up to the meter of each residence
constructed during the term of this Agreement as a Gas Compliant Residence in conformity with Section 2. The
System does not include any facilities past the meter and CGS has no obligation to install or maintain such
"behind the meter" facilities.
2.2 Preparation for Installation and Easements. DEVELOPER represents that it owns
and has legal title to the real property on which the Project will be constructed and has the authority to develop
the Project and to enter into this Agreement. DEVELOPER shall provide or cause to be provided to CGS, and
its employees, agents and subcontractors adequate physical and legal access including recorded, assignable non-
exclusive easements and/or rights of way to all areas of the Project reasonably necessary for the installation,
operation, maintenance, repair and replacement of the System.
DEVELOPER reserves the right to relocate any easement made available hereunder if necessary for the
development of the Project, provided that construction of the portion of the System subject to such revised
easements has not yet been commenced, and suitable easements and access for the System to all portions of the
. Project are maintained and provided. In the event that DEVELOPER desires to modify any easement relating to
any portion of the System after installation, then DEVELOPER must obtain CGS's advance written consent to
any easement modification, such consent not to be unreasonably withheld, and DEVELOPER shall reimburse
CGS for design, materials, construction and other costs associated with any relocation of the System and shall
provide reasonably acceptable substitute easements.
2.3 Installation Schedule. CGS agrees to cooperate with DEVELOPER with respect to the
construction of the System and to use commercially reasonable efforts to minimize interference with
DEVELOPER'S construction of the Project. If so requested, CGS shall furnish System plans to DEVELOPER.
DEVELOPER agrees to establish and manage a Project construction schedule that provides CGS with sufficient
time and access to construct the System within the Project. CGS agrees to do all in its power to install the gas
mains and service lines so as not to interfere with the construction schedule.
2.4 Ownership of Gas Distribution System. The System to the service/supply side of each gas
meter (including each meter) shall remain the exclusive property of CGS at all times during and following the
expiration or earlier termination of this Agreement. CGS' s operation of the System is not governed by the terms
of this Agreement; rather, CGS shall operate the System in accordance with the City of Clearwater's Code of
Ordinances and the requirements of applicable regulations and laws. In the event the System is no longer
required to serve the Project or any part thereof, CGS may at its election remove any portion or all components
of the System, purge and cap any components to be left in place, and restore any disrupted surface areas of the
Project.
2.5 Alternate Gas Service. In the event that CGS, in its sole determination, is unable to connect
the System to CGS' s existing gas mains at such time as the System has been completed, CGS shall have the
right to make natural gas available for the System by transporting compressed natural gas to the site of the
Project, until such connection can be made. DEVELOPER agrees to make available to CGS, at no charge,
suitable area in the Project for the equipment necessary to provide the compressed natural gas. CGS will also, if
necessary, make available a LP block system until a system connection can be made and to convert at CGS
expense necessary appliances once natural gas is available.
2.6 Excess Flow Valve. DEVELOPER hereby acknowledges that CGS has notified
DEVELOPER that CGS will make available, as part of a new service installation, at the Project an "excess flow
valve" that meets the requirements of Title 49 CFR, Part 192, Transportation of Natural and Other Gas by
Pipeline: Minimum Federal Safety Standards, Section 192.381. An excess flow valve is a safety device that is
designed to shut off the flow of natural gas by closing automatically if gas flow exceeds the design limits of the
service line. The main cause of such flow is damage to the service line by a third party excavator. Use of excess
flow valves may prevent incidents caused by such damage. An excess flow valve will only be installed by CGS
on new service lines in the System during the construction Phase at the request of DEVELOPER; installation of
excess flow valves will be done at DEVELOPER'S election and sole expense. In the event DEVELOPER elects
to have excess flow valves installed in the System, DEVELOPER agrees to pay CGS an installation fee of One
Hundred Dollars ($100) per valve installed in the System which shall be payable to CGS upon receipt of invoice
for such fees from CGS, DEVELOPER designates its election below:
Yes _ Please install excess flow valves on each of the Service lines in the System
No Do not install excess flow valves in the System
DEVELOPER acknowledges that the installation fee for the excess flow valve increases in the event that such
valve is installed on a service line after construction of such line has been completed within the System
(currently, the post-construction installation fee is $300.00). DEVELOPER acknowledges that the excess flow
valve is not a product manufactured by CGS nor does CGS warranty the excess flow valve. As with any
mechanical device, an excess flow valve may malfunction and cause interruption to gas service. Any
malfunction of the excess flow valve is not the responsibility of CGS and related maintenance and/or
replacement costs associated with the excess flow valve shall be solely the responsibility of DEVELOPER or
the future customer/property owner.
2.7 Multiple Phases. CGS understands that DEVELOPER may construct the Project in
multiple Phases. In that event, CGS reserves the right, in its sole discretion, to require each Phase to meet CGS' s
feasibility requirements of 80% of the homes built as Gas Compliant Residences as defined below.
3. Gas Appliance Requirements. In recognition of the investment made by CGS in constructing
the System, DEVELOPER agrees to construct or ensure construction, (including the recording of restrictive
covenants), of Gas Compliant Residences in at least eighty percent (80%) of each Phase of the Project actually
constructed during the term of this Agreement. DEVELOPER agrees that each "Model" home used within the
Project for purposes of home sales or other demonstrative purposes, will be a Gas Compliant Residence and will
be equipped with an "energy efficient" pilot-less gas range and gas clothes dryer. Further, DEVELOPER agrees
to make its best efforts to utilize natural gas and natural gas appliances and equipment in common areas of the
Project such as community club houses, community fitness centers, community pools, street lamps, community
laundries and central water heating systems. Additionally, DEVELOPER agrees to make a reasonable effort to
encourage the use of Natural Gas by all builders for optional appliances and for all commercial and industrial
and multi-family applications where economically feasible.
For purposes of this Agreement, a Gas Compliant Residence shall be defined as those units/homes installed
with an energy efficient gas water heater and energy efficient whole-house gas heating system, and the necessary
piping to permit the installation of an energy efficient pilotless gas range and energy efficient gas clothes dryer.
4. Energy Conservation Allowance. DEVELOPER may be entitled to an Energy Conservation
Allowance for each home constructed in the Project that meets the requirements of CGS' s Energy Conservation
Program (the "Program"), as may be amended from time to time. A summary of the allowances presently
permitted under the Program is attached hereto as Exhibit B. In the event the City Council rules or otherwise
determines that the energy conservation allowances referenced above, or any portion thereof, may not be
recovered by CGS through the Energy Conservation Adjustment, then the CGS's obligation to thereafter make
payment of said allowances shall terminate upon completion of construction of any residences already under
construction in the Project. If this occurs, the DEVELOPER has the option to terminate agreement. Should this
occur or should Withlacoochee River Electric Cooperative change the level of their underground differential
cost billed to the DEVELOPER, the parties shall have the right to renegotiate the terms of this agreement,
provided that such renegotiated terms must continue to fall within CGS' s overall and future Phase feasibility
guidelines. During the term of this Agreement, CGS shall have the right to inspect any residence for which a
claim for allowance has been made, at reasonable times and upon reasonable notice to DEVELOPER.
5. Indemnification. CGS hereby agrees to indemnify, defend and hold harmless DEVELOPER, its
their officers, directors, and employees ("Indemnified Parties") from and against all losses, damages and third-
party claims, actions or suits, for direct damages, costs and expenses, including reasonable attorneys' fees
resulting from and to the extent of CGS' S negligent construction of the System; provided, however, that such
obligation shall not apply unless CGS is given prompt written notice of the claim and sole control of its defense
and/or settlement. Notwithstanding anything contained herein to the contrary, this indemnification provision
shall not be construed as a waiver of any immunity to which CGS is entitled or the extent of any limitation of
liability pursuant to S 768.28, Florida Statutes. Furthermore, this provision is not intended to nor shall be
interpreted as limiting or in any way affecting any defense CGS may have under S 768.28, Florida Statutes,
DEVELOPER hereby agrees to indemnify, defend and hold harmless CGS, its officers, directors,
employees, and contractors ("Indemnified Parties") from and against all losses, damages and claims, actions, or
suits, for damages, costs and expenses, including reasonable attorney's fees, resulting from or to the extent any
negligent work or operations engaged in by DEVELOPER, its agents, servants, or contractors in connection
with the Project; or by consequence of any negligence, excluding the negligence of CGS, in connection with the
same; or by or on account of the use of any improper materials or by or on account of any negligent act or
omission of DEVELOPER, its agents, servants or contractors.
6. Force Maieure. Neither CGS 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 prevented
by an event of Force Majeure. The term "Force Majeure" shall mean causes not within the control of the party
whose performance is affected including, without limitation, Acts of God, strikes, lockouts, or other industrial
disturbance, acts of the public enemy, wars, blockages, insurrection, riots, epidemics, landslides, sinkholes,
lightning, earthquakes, fires, storms, flood, washouts, arrests and explosions or breakage. 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.
7. Notices. Any and all notices sent pursuant to this Agreement shall be sent by either telecopy
transmission (with receipt confirmation), U.S. mail, postage prepaid, return 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, or one business day after telecopy transmission or receipt
by any national delivery service. All notices shall be addressed to each party at the address listed below, unless
and until such time as a party notifies the other in accordance with this Section of a change in address.
Clearwater Gas System
Attn: Managing Director
400 North Myrtle Avenue
Clearwater, FL, 33755
Connerton LLC c/o Terrabrook
Attn: Vice President
3505 Frontage Road, Suite 145
Tampa, FL 33607
Fax: (727) 562-4903
Fax: (813) 286-8910
8. Duration. The term of this Agreement (the "Term") shall commence upon the Effective Date
and continue until the earlier of (i) completion of the Project by the issuance of certificates of occupancy for the
requisite number of Gas Compliant Residences and the completion of all common area and improvements with
gas compliance facilities and equipment or, (ii) the twentieth (20th) anniversary of the Effective Date.
9. Failure to Meet the Minimum. DEVELOPER acknowledges that CGS is making a substantial
investment in installing the System as provided in this Agreement. In the event builders within the Project fail to
construct at least eighty percent (80%) of the attached and detached single family residences appro~ed for a
specific Phase of the Project constructed by the DEVELOPER (the "Minimum") where gas facilities are
installed, CGS will suffer substantial damages that will be difficult to ascertain. DEVELOPER therefore agrees
to pay to CGS liquidated damages as set forth below to partially compensate CGS for DEVELOPER'S failure to
meet its obligation hereunder. Accordingly, if the builders fail to complete the Minimum percentage of the Gas
Compliant Residences in a particular Phase of this Project actually constructed by DEVELOPER during a
period measured by the earlier of (i) the issue of the last certificate of occupancy for the particular Phase of the
Project, or (ii) eight (8) years after the issuance of the first certificate of occupancy for the particular Phase of
the Project; then, DEVELOPER shall pay to CGS liquidated damages in the amount of Seven Hundred and Fifty
Dollars ($ 750.00) for each attached and detached single family residence below the minimum eighty percent
(80%) requirement for that Phase where gas facilities were installed.
10. Remedies & Limitations. In the event of a breach of this Agreement, the non-breaching Party
shall, except to the extent specifically limited by this Agreement, have all rights and remedies available at law
and at equity against the breaching party. In all cases arising under this Agreement the CGS's liability shall be
limited to an amount equivalent to the value of the System; provided, however, that this limitation shall not
expand CGS's liability beyond that provided by its City ordinances or other applicable law including Section
768.28, Florida Statutes. All punitive and consequential damages are hereby waived.
11. Termination. If either Party defaults in its performance of this Agreement or materially
breaches any of its provisions, and fails to cure said default within thirty (30) days after receiving written notice
of such default, or in the instance that a cure can not be accomplished within thirty (30) days, has not begun
good faith effort to cure same, the non-breaching Party shall have the right to terminate this Agreement with ten
(10) days written notice.
12, Gas Rates. CGS affirms that the gas rates charged to the customers in the Connerton Project
shall be substantially the same as those charged to all of its similarly situated customers east of the Suncoast
Parkway.
13. Miscellaneous. This Agreement shall be subject to all applicable laws, rules, orders, permits,
and regulations of any federal, state, or local governmental authority having jurisdiction over the parties, their
facilities, or the transactions contemplated. This Agreement shall be interpreted and construed in accordance
with the laws of the State of Florida. 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 at all trial levels, including all appeals. This Agreement constitutes the
entire understanding and agreement between the Parties and supersedes any and all prior negotiations,
understandings or agreements. Except as provided above, this Agreement shall be binding upon, and shall inure
to the benefit of the parties hereto, and their respective successors and assigns. This Agreement may be
amended, modified or extended only by a written instrument signed by both parties. No failure to exercise, delay
in exercising, or single or partial exercise of any right, power or remedy by either party shall constitute a waiver
of, or shall preclude any other or further exercise of, the same or any other right, power or remedy. Whenever
possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid
under applicable law, but if any provision of this Agreement or the application thereof to any party hereto or
circumstance is prohibited by or invalid under applicable law, that provision shall be effective only to the extent
of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining
provisions of this Agreement or the application of the same. This Agreement may be executed in any number of
counterparts, and all the counterparts taken together shall be deemed to constitute one (1) and the same
instrument. The captions, headings, titles, and subtitles herein are inserted for convenience of reference only and
are to be ignored in any construction of the provisions of this Agreement. Any exhibit attached to this
Agreement is incorporated by reference herein. Nothing contained herein shall be construed as a joint venture,
partnership or any other similar relationship between CGS and DEVELOPER. Nothing in this Agreement shall
be construed as creating any rights, benefits or interests in a person or group that is not a party to this
Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Developer Agreement (Natural Gas) to be
signed by their respective duly authorized officers as of the date first above written.
Agreed to and accepted by:
CONNERTON, L.L.c., a Delaware Limited Liability Company
By: Westerra Management, L.L.C., Its authorized
representative
By:
W. Stewart Gibbons
Vice President
Approved and accepted by:
Countersigned:
CITY OF CLEARWATER, FLORIDA
By:
Brian J. Aungst
Mayor
William B. Home II
City Manager
Approved as to form:
Attest:
Laura Lipowski
Assistant City Attorney
Cynthia E. Goudeau
City Clerk
EXHIBIT A
Legal Description of Project
CONNERTON DEVELOPMENT PARCEL - VILLAGE AREAS 1 - 4
DESCRIPTION: A parcel ofland lying in Sections 22, 23, 24, 25, 26, 27,35 and 36, Township 25
South, Range 18 East, and Sections 18, 19,20,30 and 31, Township 25 South, Range 19 East, ALL in
Pasco County, Florida, and being more particularly described as follows:
BEGINNING at the Southeast comer of the Southeast 1/4 of said Section 25, thence along the South
boundary of said Southeast 1/4 of Section 25, N.89028'40"W., 1320.64 feet to the Southwest comer of
the Southeast 1/4 of said Southeast 1/4 of Section 25; thence along the East boundary of the Northwest
1/4 of the Northeast 1/4 of said Section 36, S.00015'33"W., 1328.92 feet to the Southeast comer of said
Northwest 1/4 ofthe Northeast 1/4 of Section 36; thence along the South boundary of said Northwest
1/4 of the Northeast 1/4 of Section 36, N.89042'53"W., 1321.99 feet to the Southwest comer of said
Northwest 1/4 of the Northeast 1/4 of Section 36; thence along the South boundary of the Northeast
1/4 of the Northwest 1/4 of said Section 36, N.89043'25"W., 1321.07 feet to the Southwest comer of
said Northeast 1/4 of the Northwest 1/4 of Section 36; thence along the West boundary of said
Northeast 1/4 of the Northwest 1/4 of Section 36, N.00019'32"E., 1339.80 feet to the Northwest comer
of said Northeast 1/4 of the Northwest 1/4 of Section 36; thence N.26038'23"W., 741.21 feet; thence
N.64026'37"W., 629.60 feet; thence N,62051'24"E., 1014.82 feet; thence N.20031'43"E., 549.36 feet;
thence N.50014'25"W., 1535.13 feet; thence S.55036'40"W., 810.99 feet; thence S.65013'49"W.,
1389.45 feet to a point on a curve; thence Southwesterly, 1312.85 feet along the arc of a curve to the
left having a radius of 1150.00 feet and a central angle of 65024'34" (chord bearing S.32032'26"W.,
1242.71 feet); thence S.OOOII '02"E., 437.08 feet to a point on a curve, said point lying on the Westerly
boundary of THE GROVES PHASE lA, according to the plat thereof as recorded in Plat Book 39,
Pages 120 through 150, inclusive, of the Public Records of Pasco County, Florida; thence along said
Westerly boundary of THE GROVES PHASE lA, the following four (4) courses: 1) Southwesterly,
707.82 feet along the arc of a curve to the right having a radius of 550.00 feet and a central angle of
73044'10" (chord bearing S.36041 'OO"W., 659.97 feet);
2) S.71053'17"W., 446.91 feet; 3) S.18006'43"E., 630.30 feet;
4) S.62019'IO"W., 820.30 feet to a point on a curve on the Easterly right-of-way line of U.S.
HIGHWAY No. 41 (State Road No. 45), per D.O.T. Right-of-way Map No. 544B - Road 5; thence
along said Easterly right-of-way line, the following four (4) courses: 1) Northerly, 497.06 feet along
the arc of a curve to the right having a radius of 5609.58 feet and a central angle of 05004'37" (chord
bearing N.20038'25''W., 496.90 feet); 2) N.18006'36"W., 1124.74 feet to a point on a curve; 3)
Northerly, 1414.88 feet along the arc of a curve to the left having a radius of23038.77 feet and a
central angle of 03031 '07" (chord bearing N.19051'24"W., 1414.66 feet) 4) N.21 037'29"W., 4520.38
feet; thence N.88044'55"E., 274.27 feet; thence S.OI 015'05"E., 150.00 feet; thence N.88044'55"E.,
77.14 feet to a point of curvature; thence Easterly, 357.96 feet along the arc of a curve to the left
having a radius of 11350.00 feet and a central angle of 01 048'25" (chord bearing N.87050'42"E.,
357.94 feet) to a point on a curve; thence Easterly, 547.67 feet along the arc of a curve to the left
having a radius of 11350.00 feet and a central angle of 02045'53" (chord bearing N.89023'14"E.,
547.62 feet); thence N.50050'00"E., 1057.53 feet; thence N.25000'00"E., 1050.00 feet; thence
N.79000'00"E., 544.99 feet; thence N.56000'OO"E., 356.34 feet; thence S.46000'00"E., 430.00 feet;
thence S.03050'00"W., 770.00 feet; thence S.55000'00"W., 325.00 feet; thence S.33050'00"W., 375.00
feet; thence S.05039'58"E., 77.00 feet to a point on a curve; thence Easterly, 1944.04 feet along the arc
ofa curve to the right having a radius of7110.00 feet and a central angle of 15039'58" (chord bearing
S,87049'59"E., 1937.99 feet) to a point of tangency; thence S.80000'00"E., 868.53 feet to a point of
curvature; thence Easterly, 1292.15 feet along the arc of a curve to the left having a radius of 11390.00
feet and a central angle of 06030'00" (chord bearing S.83015'00"E., 1291.46 feet) to a point of
Exhibit A 1
tangency; thence S.86030'00"E., 210.00 feet; thence N.20035'08"E., 263.21 feet; thence
N.27050'00"W., 285.00 feet; thence N.35000'00"E., 840.00 feet; thence N.47050'00"E., 165.00 feet;
thence S.89000'00"E., 255.00 feet; thence S.03050'00"E., 150.00 feet; thence S.54050'OO"E., 400.00
feet; thence N.73000'00"E., 270.00 feet; thence N.32000'00"W., 980.00 feet; thence N.51 050'00"E.,
350.00 feet; thence N.22050'00"E., 700.00 feet; thence N.47050'00"W., 720.00 feet; thence
N.76000'00"W., 225.00 feet; thence N.12050'00"E., 600.00 feet; thence N.78000'00"E., 575.00 feet;
thence N.13050'00"E., 730.00 feet; thence S.71050'00"E., 925.00 feet; thence S.14050'00"E., 245.00
feet; thence N.84050'00"E., 200.00 feet; thence N.01 oOO'OO"E., 525.00 feet; thence S.74000'00"W.,
320.00 feet; thence N.14000'00"E., 655.00 feet; thence N.62000'00"W., 555.00 feet; thence
N.04000'00"W., 645.00 feet; thence N.82050'00"E., 210.00 feet; thence N.10050'00"W., 755.00 feet;
thence S.84050'00"E., 820.00 feet; thence S.16050'00"E., 510.00 feet; thence S.49050'OO"E., 525.00
feet; thence S.88000'00"E., 305.00 feet; thence N.17000'00"E., 600.00 feet; thence N.44050'00"E.,
535.00 feet; thence S.77000'OO"E., 540.00 feet; thence N.48050'00"E., 600.00 feet; thence
S.46050'00"E., 600.00 feet; thence S.85000'00"E., 280.00 feet; thence S.24000'OO"E., 835.00 feet;
thence S.10050'00"W., 445.00 feet; thence S.19000'00"E., 380.00 feet; thence S.66000'00"E., 305.00
feet; thence S.71050'00"E., 480.00 feet; thence N.27000'00"E., 520.00 feet; thence S.72050'00"E.,
385.00 feet; thence S.12050'00"W., 465.00 feet; thence S.18050'00"E., 305.00 feet; thence
S.51050'00"E., 1015.00 feet; thence S.65030'00"E., 320.00 feet; thence S.81 050'00"E., 145.00 feet;
thence N.80000'00"E., 580.00 feet; thence N.70000'00"E., 585.00 feet; thence N.56038'20"E., 1328.40
feet to a point on the Westerly Maintained Right-of-way of EHREN ROAD (County Road No. 583);
thence along said Westerly Maintained right-of-way line, the following nineteen (19) courses: 1)
S.48051'21"W., 97.11 feet; 2) S.42032'17"W., 85.82 feet;
3) S.36027'57"W., 112.91 feet; 4) S.30029'25"W., 129.08 feet;
5) S.26004'09"W., 127.93 feet; 6) S.16001'38"W., 192.14 feet;
7) S.07049'12"W., 145.26 feet; 8) S.02011'34"W., 117.12 feet;
9) S.02006'19"W., 981.49 feet; 10) S.00038'37"W., 248.53 feet;
11) S.02033'21 "W., 973.03 feet; 12) S.20016'52"W., 140.98 feet; 13) S.21021'42"W., 1013.33 feet; 14)
S.21028'00"W., 117.24 feet; 15) S.21 005'17"W., 102.88 feet; 16) S.22016'29"W., 113.00 feet; 17)
S.20024'13"W., 113.26 feet; 18) S.20055'46''W., 422.73 feet; 19) S.20054'15"W., 116.87 feet to a point
on the South boundary of the Southwest 1/4 of said Section 20; thence along said South boundary of
the Southwest 1/4 of Section 20, N.89056'01 "W., 476.92 feet to the Southeast comer of the Southeast
1/4 of said Section 19; thence along the South boundary of said Southeast 1/4 of Section 19,
N.89059'1O"W., 1328.58 feet to the Northeast comer of the Northwest 1/4 of the Northeast 1/4 of said
Section 30; thence along the East boundary of the West 1/2 of said Northeast comer of Section 30,
S.0001O'04"W., 2662.96 feet to the Northeast comer of the Northwest 1/4 of the Southeast 1/4 of said
Section 30; thence along the East boundary of the West 1/2 of said Southeast 1/4 of Section 30,
S.00003'23"W., 2486.70 feet; thence S.48016'23"E., 96.47 feet; thence S.41043'37"W., 108.39 feet to a
point on said East boundary of the West 1/2 of said Southeast 1/4 of Section 30; thence along said East
boundary ofthe West 1/2 ofthe Southeast 1/4 of Section 30, S.00003'23"W., 5.50 feet to the Southeast
comer of the Southwest 1/4 of said Southeast 1/4 of Section 30; thence along the South boundary of
said Southwest 1/4 ofthe Southeast 1/4 of Section 30, N.89042'43"W., 4.88 feet; thence
S.41043'37"W., 109.27 feet; thence N.48016'23"W., 120.00 feet; thence N.41 043'37"E., 3.33 feet to a
point on said South boundary of said Southwest 1/4 ofthe Southeast 1/4 of Section 30; thence along
said South boundary of said Southwest 1/4 ofthe Southeast 1/4 of Section 30, N.89042'43 "W., 1154.33
feet to the Southwest comer of said Southeast 1/4 of Section 30; thence along the South boundary of
the Southwest 1/4 of said Section 30, N.89048'22"W., 2661.30 feet to the POINT OF BEGINNING.
Containing 3063.577 acres, more or less.
LESS AND EXCEPT THE FOLLOWING DESCRIBED PARCEL:
Exhibit A
2
(LESS-OUT PARCEL No.1)
DESCRIPTION: A parcel ofland lying in Section 18, Township 25 South, Range 19 East, Pasco
County, Florida, and being more particularly described as follows:
Commence at the Southeast comer of the Southeast 1/4 of said Section 25, thence along the South
boundary of said Southeast 1/4 of Section 25, N.89028'40"W., 1320.64 feet to the Southwest comer of
the Southeast 1/4 of said Southeast 1/4 of Section 25; thence along the East boundary of the Northwest
1/4 of the Northeast 1/4 of said Section 36, S.00015'33"W., 1328.92 feet to the Southeast comer of said
Northwest 1/4 of the Northeast 1/4 of Section 36; thence along the South boundary of said Northwest
1/4 of the Northeast 1/4 of Section 36, N.89042'53"W., 1321.99 feet to the Southwest comer of said
Northwest 1/4 of the Northeast 1/4 of Section 36; thence along the South boundary of the Northeast
1/4 ofthe Northwest 1/4 of said Section 36, N.89043'25"W., 1321.07 feet to the Southwest comer of
said Northeast 1/4 ofthe Northwest 1/4 of Section 36; thence along the West boundary of said
Northeast 1/4 ofthe Northwest 1/4 of Section 36, N.00019'32"E., 1339.80 feet to the Northwest comer
of said Northeast 1/4 of the Northwest 1/4 of Section 36; thence N.26038'23"W., 741.21 feet; thence
N.64026'37"W., 629.60 feet; thence N.62051'24"E., 1014.82 feet; thence N.20031'43"E., 549.36 feet;
thence N.50014'25"W., 1535.13 feet; thence S.55036'40"W., 810.99 feet; thence S.65013'49"W.,
1389.45 feet to a point on a curve; thence Southwesterly, 1312.85 feet along the arc of a curve to the
left having a radius of 1150.00 feet and a central angle of 65024'34" (chord bearing S.32032'26"W.,
1242.71 feet); thence S.0001I'02"E., 437.08 feet to a point on a curve, said point lying on the Westerly
boundary of THE GROVES PHASE lA, according to the plat thereof as recorded in Plat Book 39,
Pages 120 through 150, inclusive, of the Public Records of Pasco County, Florida; thence along said
Westerly boundary of THE GROVES PHASE lA, the following four (4) courses: 1) Southwesterly,
707.82 feet along the arc of a curve to the right having a radius of 550.00 feet and a central angle of
73044'10" (chord bearing S.36041'OO"W., 659.97 feet);
2) S.71 053'17"W., 446.91 feet; 3) S.18006'43"E., 630.30 feet;
4) S.62019'10"W., 820.30 feet to a point on a curve on the Easterly right-of-way line of US.
HIGHWAY No. 41 (State Road No. 45), per D.O.T. Right-of-way Map No. 544B - Road 5; thence
along said Easterly right-of-way line, the following four (4) courses: 1) Northerly, 497.06 feet along
the arc ofa curve to the right having a radius of5609.58 feet and a central angle of 05004'37" (chord
bearing N.20038'25"W., 496.90 feet); 2) N.18006'36"W., 1124.74 feet to a point on a curve; 3)
Northerly, 1414.88 feet along the arc of a curve to the left having a radius of23038.77 feet and a
central angle of 03031'07" (chord bearing N.19051'24"W., 1414.66 feet) 4) N.21 037'29"W., 4520.38
feet; thence N.88044'55"E., 274.27 feet; thence S.0IOI5'05"E., 150.00 feet; thence N.88044'55"E.,
77.14 feet to a point of curvature; thence Easterly, 357.96 feet along the arc ofa curve to the left
having a radius of 11350.00 feet and a central angle of 01 048'25" (chord bearing N.87050'42"E.,
357.94 feet) to a point on a curve; thence Easterly, 547.67 feet along the arc of a curve to the left
having a radius of 11350.00 feet and a central angle of 02045'53" (chord bearing N.89023'14"E.,
547.62 feet); thence N.50050'00"E., 1057.53 feet; thence N.25000'OO"E., 1050.00 feet; thence
N.79000'00"E., 544.99 feet; thence N.56000'OO"E., 356.34 feet; thence S.46000'OO"E., 430.00 feet;
thence S.03050'OO"W., 770.00 feet; thence S.55000'OO"W., 325.00 feet; thence S.33050'OO"W., 375.00
feet; thence S.05039'58"E., 77.00 feet to a point on a curve; thence Easterly, 1944.04 feet along the arc
of a curve to the right having a radius of 7110.00 feet and a central angle of 15039'58" (chord bearing
S.87049'59"E., 1937.99 feet) to a point oftangency; thence S.80000'00"E., 868.53 feet to a point of
curvature; thence Easterly, 1292.15 feet along the arc of a curve to the left having a radius of 11390.00
feet and a central angle of 06030'00" (chord bearing S.83015'OO"E., 1291.46 feet) to a point of
tangency; thence S.86030'00"E., 210.00 feet; thence N.20035'08"E., 263.21 feet; thence
N.27050'00"W., 285.00 feet; thence N.35000'OO"E., 840.00 feet; thence N.47050'OO"E., 165.00 feet;
thence S.89000'OO"E., 255.00 feet; thence S.03050'OO"E., 150.00 feet; thence S.54050'00"E., 400.00
feet; thence N.73000'OO"E., 270.00 feet; thence N.32000'OO"W., 980.00 feet; thence N.51 050'00"E.,
Exhibit A 3
350.00 feet; thence N.22050'00"E., 700.00 feet; thence N.47050'OO"W., 720.00 feet; thence
N.76000'00"W., 225.00 feet; thence N.12050'00"E., 600.00 feet; thence N.78000'00"E., 575.00 feet;
thence N.13050'00"E., 730.00 feet; thence S.71 050'00"E., 925.00 feet; thence S.14050'00"E., 245.00
feet; thence N.84050'00"E., 200.00 feet; thence N.Ol 000'00"E., 525.00 feet; thence S.74000'00"W.,
320.00 feet; thence N.14000'00"E., 655.00 feet; thence N.62000'OO"W., 555.00 feet; thence
N.04000'00"W., 645.00 feet; thence N.82050'00"E., 210.00 feet; thence N.10050'00"W., 755.00 feet;
thence S.84050'00"E., 820.00 feet; thence S.16050'00"E., 510.00 feet; thence S.49050'OO"E., 525.00
feet; thence S.88000'00"E., 305.00 feet; thence N, 17000'00"E., 600.00 feet; thence N.44050'00"E.,
535.00 feet; thence S.77000'OO"E., 540.00 feet to the POINT OF BEGINNING; thence
N.48050'00"E., 600.00 feet; thence S.46050'00"E., 600.00 feet; thence N.89000'00"W., 889.43 feet to
the POINT OF BEGINNING.
Containing 4.112 acres, more or less.
ALSO LESS AND EXCEPT THE FOLLOWING DESCRIBED PARCEL:
(LESS-OUT PARCEL No.2)
DESCRIPTION: A parcel ofland lying in Sections 18 and 19, Township 25 South, Range 19 East,
Pasco County, Florida, and being more particularly described as follows:
Commence at the Southeast comer ofthe Southeast 1/4 of said Section 25, thence along the South
boundary of said Southeast 1/4 of Section 25, N.89028'40"W., 1320.64 feet to the Southwest comer of
the Southeast 1/4 of said Southeast 1/4 of Section 25; thence along the East boundary ofthe Northwest
1/4 ofthe Northeast 1/4 of said Section 36, S.00015'33"W., 1328.92 feet to the Southeast comer of said
Northwest 1/4 of the Northeast 1/4 of Section 36; thence along the South boundary of said Northwest
1/4 ofthe Northeast 1/4 of Section 36, N.89042'53"W., 1321.99 feet to the Southwest comer of said
Northwest 1/4 of the Northeast 1/4 of Section 36; thence along the South boundary of the Northeast
1/4 ofthe Northwest 1/4 of said Section 36, N.89043'25"W., 1321.07 feet to the Southwest comer of
said Northeast 1/4 of the Northwest 1/4 of Section 36; thence along the West boundary of said
Northeast 1/4 ofthe Northwest 1/4 of Section 36, N.00019'32"E., 1339.80 feet to the Northwest comer
of said Northeast 1/4 ofthe Northwest 1/4 of Section 36; thence N.26038'23"W., 741.21 feet; thence
N.64026'37"W., 629,60 feet; thence N.6205l'24"E., 1014.82 feet; thence N.20031'43"E., 549.36 feet;
thence N.50014'25"W., 1535.13 feet; thence S.55036'40"W., 810.99 feet; thence S.65013'49"W.,
1389.45 feet to a point on a curve; thence Southwesterly, 1312.85 feet along the arc of a curve to the
left having a radius of 1150.00 feet and a central angle of 65024'34" (chord bearing S.32032'26"W.,
1242.71 feet); thence S.00011'02"E., 437.08 feet to a point on a curve, said point lying on the Westerly
boundary of THE GROVES PHASE lA, according to the plat thereof as recorded in Plat Book 39,
Pages 120 through 150, inclusive, of the Public Records of Pasco County, Florida; thence along said
Westerly boundary of THE GROVES PHASE lA, the following four (4) courses: 1) Southwesterly,
707.82 feet along the arc of a curve to the right having a radius of 550.00 feet and a central angle of
73044'10" (chord bearing S.36041'00"W., 659.97 feet);
2) S.71 053'17"W., 446.91 feet; 3) S.18006'43"E., 630.30 feet;
4) S.62019'10"W., 820.30 feet to a point on a curve on the Easterly right-of-way line of U.S.
HIGHWAY No. 41 (State Road No. 45), per D.O.T. Right-of-way Map No. 544B - Road 5; thence
along said Easterly right-of-way line, the following four (4) courses: 1) Northerly, 497.06 feet along
the arc ofa curve to the right having a radius of5609.58 feet and a central angle of 05004'37" (chord
bearing N.20038'25"W., 496.90 feet); 2) N.18006'36"W., 1124.74 feet to a point on a curve; 3)
Northerly, 1414.88 feet along the arc of a curve to the left having a radius of23038.77 feet and a
central angle of 03031 '07" (chord bearing N.1905l '24"W., 1414.66 feet) 4) N.2l 037'29"W., 4520.38
feet; thence N.88044'55"E., 274.27 feet; thence S.Ol 015'05"E., 150.00 feet; thence N.88044'55"E.,
Exhibit A 4
77.14 feet to a point of curvature; thence Easterly, 357.96 feet along the arc of a curve to the left
having a radius of 11350.00 feet and a central angle of 01 048'25" (chord bearing N.87050'42"E.,
357.94 feet) to a point on a curve; thence Easterly, 547.67 feet along the arc of a curve to the left
having a radius of 11350.00 feet and a central angle of 02045'53" (chord bearing N.89023'14"E.,
547.62 feet); thence N.50050'00"E., 1057.53 feet; thence N.25000'00"E., 1050.00 feet; thence
N.79000'00"E., 544.99 feet; thence N.56000'00"E., 356.34 feet; thence S.46000'00"E., 430.00 feet;
thence S.03050'00"W., 770.00 feet; thence S.55000'00"W., 325.00 feet; thence S.33050'00"W., 375.00
feet; thence S.05039'58"E., 77.00 feet to a point on a curve; thence Easterly, 1944.04 feet along the arc
ofa curve to the right having a radius of7110.00 feet and a central angle of 15039'58" (chord bearing
S.87049'59"E., 1937.99 feet) to a point of tangency; thence S.80000'00"E., 868.53 feet to a point of
curvature; thence Easterly, 1292.15 feet along the arc of a curve to the left having a radius of 11390.00
feet and a central angle of 06030'00" (chord bearing S.830l5'00"E., 1291.46 feet) to a point of
tangency; thence S.86030'00"E., 210.00 feet; thence N.20035'08"E., 263.21 feet; thence
N.27050'00"W., 285.00 feet; thence N.35000'00"E., 840.00 feet; thence N.47050'00"E., 165.00 feet;
thence S.89000'00"E., 255.00 feet; thence S.03050'00"E., 150.00 feet; thence S.54050'00"E., 400.00
feet; thence N.73000'00"E., 270.00 feet; thence N.32000'00"W., 980.00 feet; thence N.51 o50'00"E.,
350.00 feet; thence N.22050'00"E., 700.00 feet; thence N.47050'00"W., 720.00 feet; thence
N.76000'00"W., 225.00 feet; thence N.12050'00"E., 600.00 feet; thence N.78000'00"E., 575.00 feet;
thence N.13050'00"E., 730.00 feet; thence S.71050'00"E., 925.00 feet; thence S.14050'00"E., 245.00
feet; thence N.84050'00"E., 200.00 feet; thence N.01 oOO'OO"E., 525.00 feet; thence S.74000'00"W.,
320.00 feet; thence N.14000'00"E., 655.00 feet; thence N.62000'OO"W., 555.00 feet; thence
N.04000'00"W., 645.00 feet; thence N.82050'00"E., 210.00 feet; thence N.lOo50'00"W., 755.00 feet;
thence S.84050'00"E., 820.00 feet; thence S.16050'00"E., 510.00 feet; thence S.49050'00"E., 525.00
feet; thence S.88000'00"E., 305.00 feet; thence N.17000'00"E., 600.00 feet; thence N.44050'00"E.,
535.00 feet; thence S.77000'00"E., 540.00 feet; thence N.48050'00"E., 600.00 feet; thence
S.46050'00"E., 600.00 feet; thence S.85000'00"E., 280.00 feet; thence S.24000'00"E., 835.00 feet;
thence S.lOo50'00"W., 445.00 feet; thence S.19000'00"E., 380.00 feet; thence S.66000'00"E., 305.00
feet; thence S.71 o50'00"E., 480.00 feet to the POINT OF BEGINNING; thence N.27000'00"E.,
520.00 feet; thence S.72050'00"E., 385.00 feet; thence S.12050'00"W., 465.00 feet; thence
N.78017'53"W., 511.27 feet to the POINT OF BEGINNING.
Containing 4.993 acres, more or less.
ALSO LESS AND EXCEPT THE FOLLOWING DESCRIBED PARCEL:
(LESS-OUT PARCEL No. 3)
DESCRIPTION: A parcel ofland lying in Section 36, Township 25 South, Range 18 East, Pasco
County, Florida, and being more particularly described as follows:
Commence at the Southeast corner of the Southeast 1/4 of Section 25, Township 25 South, Range 18
East, Pasco County, Florida, run thence along the South boundary of said Southeast 1/4 of Section 25,
N.89028'40"W., 1320.64 feet to the Southwest corner of the Southeast 1/4 of said Southeast 1/4 of
Section 25, said point also being the POINT OF BEGINNING; thence along the East boundary ofthe
Northwest 1/4 ofthe Northeast 1/4 of said Section 36, S.00015'33''W., 1328.92 feet to the Southeast
corner of said Northwest 1/4 of the Northeast 1/4 of Section 36; thence along the South boundary of
said Northwest 1/4 ofthe Northeast 1/4 of Section 36, N.89042'53"W., 1321.99 feet to the Southwest
corner of said Northwest 1/4 of the Northeast 1/4 of Section 36; thence along the South boundary of
the Northeast 1/4 of the Northwest 1/4 of said Section 36, N.89043'25"W., 1321.07 feet to the
Southwest corner of said Northeast 1/4 of the Northwest 1/4 of Section 36; thence along the West
boundary of said Northeast 1/4 of the Northwest 1/4 of Section 36, N.00019'32''E., 1339.80 feet to the
Exhibit A 5
Northwest comer of said Northeast 1/4 ofthe Northwest 1/4 of Section 36; thence along the North
boundary of said Northeast 1/4 ofthe Northwest 1/4 of Section 36, S.89029'00"E., 1320.77 feet to the
Northwest comer ofthe aforesaid Northwest 1/4 of the Northeast 1/4 of Section 36; thence along the
North boundary of said Northwest 1/4 of the Northeast 1/4 of Section 36, continue S.89029'00"E.,
1320.77 feet to the POINT OF BEGINNING.
Containing 80.937 acres, more or less.
TOGETHER WITH THE FOLLOWING DESCRIBED PARCEL:
(ADD-ON PARCEL No.1)
DESCRIPTION: A parcel ofland lying in Section 24, Township 25 South, Range 18 East, Pasco
County, Florida, and being more particularly described as follows:
Commence at the Southeast comer of the Southeast 1/4 of said Section 25, thence along the South
boundary of said Southeast 1/4 of Section 25, N.89028'40"W., 1320.64 feet to the Southwest comer of
the Southeast 1/4 of said Southeast 1/4 of Section 25; thence along the East boundary ofthe Northwest
1/4 of the Northeast 1/4 of said Section 36, S.00015'33"W., 1328.92 feet to the Southeast comer of said
Northwest 1/4 of the Northeast 1/4 of Section 36; thence along the South boundary of said Northwest
1/4 ofthe Northeast 1/4 of Section 36, N.89042'53"W., 1321.99 feet to the Southwest comer of said
Northwest 1/4 of the Northeast 1/4 of Section 36; thence along the South boundary of the Northeast
1/4 ofthe Northwest 1/4 of said Section 36, N.89043'25"W., 1321.07 feet to the Southwest comer of
said Northeast 1/4 of the Northwest 1/4 of Section 36; thence along the West boundary of said
Northeast 1/4 ofthe Northwest 1/4 of Section 36, N.00019'32"E., 1339.80 feet to the Northwest comer
of said Northeast 1/4 ofthe Northwest 1/4 of Section 36; thence N.26038'23"W., 741.21 feet; thence
N.64026'37"W., 629.60 feet; thence N.62051 '24"E., 1014.82 feet; thence N.20031'43"E., 549.36 feet;
thence N.50014'25"W., 1535.13 feet; thence S.55036'40"W., 810.99 feet; thence S.65013'49"W.,
1389.45 feet to a point on a curve; thence Southwesterly, 1312.85 feet along the arc of a curve to the
left having a radius of 1150.00 feet and a central angle of 65024'34" (chord bearing S.32032'26"W.,
1242.71 feet); thence S.00011'02"E., 437.08 feet to a point on a curve, said point lying on the Westerly
boundary of THE GROVES PHASE lA, according to the plat thereof as recorded in Plat Book 39,
Pages 120 through 150, inclusive, of the Public Records of Pasco County, Florida; thence along said
Westerly boundary of THE GROVES PHASE lA, the following four (4) courses: 1) Southwesterly,
707.82 feet along the arc of a curve to the right having a radius of 550.00 feet and a central angle of
73044'10" (chord bearing S.36041'00"W., 659.97 feet);
2) S.71053'17"W., 446.91 feet; 3) S.18006'43"E., 630.30 feet;
4) S.62019'10"W., 820.30 feet to a point on a curve on the Easterly right-of-way line of U.S.
HIGHWAY No. 41 (State Road No. 45), per D.O.T. Right-of-way Map No. 544B - Road 5; thence
along said Easterly right-of-way line, the following four (4) courses: 1) Northerly, 497.06 feet along
the arc ofa curve to the right having a radius of5609.58 feet and a central angle of 05004'37" (chord
bearing N.20038'25"W., 496.90 feet); 2) N.18006'36"W., 1124.74 feet to a point on a curve; 3)
Northerly, 1414.88 feet along the arc of a curve to the left having a radius of23038.77 feet and a
central angle of 03031'07" (chord bearing N.19051'24"W., 1414.66 feet) 4) N.21 037'29"W., 4520.38
feet; thence N.88044'55"E., 274.27 feet; thence S,01015'05"E., 150.00 feet; thence N.88044'55"E.,
77.14 feet to a point of curvature; thence Easterly, 357.96 feet along the arc of a curve to the left
having a radius of 11350.00 feet and a central angle of 01 048'25" (chord bearing N.87050'42"E.,
357.94 feet) to a point on a curve; thence Easterly, 547.67 feet along the arc of a curve to the left
having a radius of 11350.00 feet and a central angle of 02045'53" (chord bearing N.89023'14"E.,
547.62 feet); thence N.50050'00"E., 1057.53 feet; thence N.25000'00"E., 1050.00 feet; thence
N.79000'00"E., 544.99 feet; thence N.56000'OO"E., 356.34 feet; thence S.46000'00"E., 430.00 feet;
Exhibit A 6
thence S.03050'00"W., 770.00 feet; thence S.55000'00"W., 325.00 feet; thence S.33050'00"W., 375.00
feet; thence S.05039'58"E., 77.00 feet to a point on a curve; thence Easterly, 1944.04 feet along the arc
of a curve to the right having a radius of7110.00 feet and a central angle of 15039'58" (chord bearing
S.87049'59"E., 1937.99 feet) to a point of tangency; thence S.80000'00"E., 868.53 feet to a point of
curvature; thence Easterly, 1292.15 feet along the arc of a curve to the left having a radius of 11390.00
feet and a central angle of 06030'00" (chord bearing S.83015'00"E., 1291.46 feet) to a point of
tangency; thence S.86030'OO"E., 210.00 feet; thence N.20035'08"E., 263.21 feet; thence
N.27050'00"W., 285.00 feet; thence N.35000'00"E., 840.00 feet; thence N.47050'00"E., 165.00 feet to
the POINT OF BEGINNING; thence S.89000'00"E., 255.00 feet; thence S.03050'00"E., 150.00 feet;
thence S.54050'00"E., 400.00 feet; thence N.73000'OO"E., 270.00 feet; thence N.32000'00"W., 980.00
feet; thence S.32011'37"W., 621.01 feet to the POINT OF BEGINNING.
Containing 7 .405 acres, more or less.
ALSO TOGETHER WITH THE FOLLOWING DESCRIBED PARCEL:
(ADD-ON PARCEL No.2)
DESCRIPTION: A parcel ofland lying in Section 24, Township 25 South, Range 18 East, Pasco
County, Florida, and being more particularly described as follows:
Commence at the Southeast comer ofthe Southeast 1/4 of said Section 25, thence along the South
boundary of said Southeast 1/4 of Section 25, N.89028'40"W., 1320.64 feet to the Southwest comer of
the Southeast 1/4 of said Southeast 1/4 of Section 25; thence along the East boundary ofthe Northwest
1/4 of the Northeast 1/4 of said Section 36, S.00015'33"W., 1328.92 feet to the Southeast comer of said
Northwest 1/4 of the Northeast 1/4 of Section 36; thence along the South boundary of said Northwest
1/4 ofthe Northeast 1/4 of Section 36, N.89042'53"W., 1321.99 feet to the Southwest comer of said
Northwest 1/4 of the Northeast 1/4 of Section 36; thence along the South boundary of the Northeast
1/4 of the Northwest 1/4 of said Section 36, N.89043'25"W., 1321.07 feet to the Southwest comer of
said Northeast 1/4 of the Northwest 1/4 of Section 36; thence along the West boundary of said
Northeast 1/4 ofthe Northwest 1/4 of Section 36, N.00019'32"E., 1339.80 feet to the Northwest comer
of said Northeast 1/4 of the Northwest 1/4 of Section 36; thence N.26038'23"W., 741.21 feet; thence
N.64026'37"W., 629.60 feet; thence N.62051'24"E., 1014.82 feet; thence N.20031'43"E., 549.36 feet;
thence N.50014'25"W., 1535.13 feet; thence S.55036'40"W., 810.99 feet; thence S.65013'49"W.,
1389.45 feet to a point on a curve; thence Southwesterly, 1312.85 feet along the arc of a curve to the
left having a radius of 1150.00 feet and a central angle of 65024'34" (chord bearing S.32032'26"W.,
1242.71 feet); thence S.Oooll '02"E., 437.08 feet to a point on a curve, said point lying on the Westerly
boundary of THE GROVES PHASE lA, according to the plat thereof as recorded in Plat Book 39,
Pages 120 through 150, inclusive, of the Public Records of Pasco County, Florida; thence along said
Westerly boundary of THE GROVES PHASE 1 A, the following four (4) courses: 1) Southwesterly,
707.82 feet along the arc of a curve to the right having a radius of 550.00 feet and a central angle of
73044'10" (chord bearing S.36041'00"W., 659.97 feet);
2) S.71053'17"W., 446.91 feet; 3) S.18006'43"E., 630.30 feet;
4) S.62019'10"W., 820.30 feet to a point on a curve on the Easterly right-of-way line of US.
HIGHWAY No. 41 (State Road No. 45), per D.O.T. Right-of-way Map No. 544B - Road 5; thence
along said Easterly right-of-way line, the following four (4) courses: 1) Northerly, 497.06 feet along
the arc of a curve to the right having a radius of 5609.58 feet and a central angle of 05004'37" (chord
bearing N.20038'25"W., 496.90 feet); 2) N.18006'36"W., 1124.74 feet to a point on a curve; 3)
Northerly, 1414.88 feet along the arc of a curve to the left having a radius of23038.77 feet and a
central angle of 03031 '07" (chord bearing N.19051'24"W., 1414.66 feet) 4) N.21 037'29"W., 4520.38
feet; thence N.88044'55"E., 274.27 feet; thence S.Ol 015'05"E., 150.00 feet; thence N.88044'55"E.,
Exhibit A 7
77.14 feet to a point of curvature; thence Easterly, 357.96 feet along the arc of a curve to the left
having a radius of 11350.00 feet and a central angle of 01 048'25" (chord bearing N.87050'42"E.,
357.94 feet) to a point on a curve; thence Easterly, 547.67 feet along the arc of a curve to the left
having a radius of 11350.00 feet and a central angle of 02045'53" (chord bearing N.89023'14"E.,
547.62 feet); thence N.50050'00"E., 1057.53 feet; thence N.25000'OO"E., 1050.00 feet; thence
N.79000'00"E., 544.99 feet; thence N.56000'OO"E., 356.34 feet; thence S.46000'OO"E., 430.00 feet;
thence S.03050'OO"W., 770.00 feet; thence S.55000'OO"W., 325.00 feet; thence S.33050'OO"W., 375.00
feet; thence S.05039'58"E., 77.00 feet to a point on a curve; thence Easterly, 1944.04 feet along the arc
ofa curve to the right having a radius of7110.00 feet and a central angle of 15039'58" (chord bearing
S.87049'59"E., 1937.99 feet) to a point of tangency; thence S.80000'OO"E., 868.53 feet to a point of
curvature; thence Easterly, 1292.15 feet along the arc of a curve to the left having a radius of 11390.00
feet and a central angle of 06030'00" (chord bearing S.83015'OO"E., 1291.46 feet) to a point of
tangency; thence S.86030'OO"E., 210.00 feet; thence N.20035'08"E., 263.21 feet; thence
N.27050'OO"W., 285.00 feet; thence N.35000'OO"E., 840.00 feet; thence N.47050'OO"E., 165.00 feet;
thence S.89000'00"E., 255.00 feet; thence S.03050'OO"E., 150.00 feet; thence S.54050'OO"E., 400.00
feet; thence N.73000'OO"E., 270.00 feet; thence N.32000'OO"W., 980.00 feet; thence N.51 050'OO"E.,
350.00 feet; thence N.22050'OO"E., 700.00 feet to the POINT OF BEGINNING; thence
N.47050'OO"W., 720.00 feet; thence N.76000'00"W., 225.00 feet; thence S.54025'49"E., 924.48 feet to
the POINT OF BEGINNING.
Containing 0.878 acres, more or less.
ALSO TOGETHER WOTH THE FOLLOWING DESCRIBED PARCEL:
(ADD-ON PARCEL No.3)
DESCRIPTION: A parcel ofland lying in Section 13, Township 25 South, Range 18 East, Pasco
County, Florida, and being more particularly described as follows:
Commence at the Southeast comer ofthe Southeast 1/4 of said Section 25, thence along the South
boundary of said Southeast 1/4 of Section 25, N.89028'40"W., 1320.64 feet to the Southwest comer of
the Southeast 1/4 of said Southeast 1/4 of Section 25; thence along the East boundary of the Northwest
1/4 of the Northeast 1/4 of said Section 36, S.00015'33"W., 1328.92 feet to the Southeast comer of said
Northwest 1/4 of the Northeast 1/4 of Section 36; thence along the South boundary of said Northwest
1/4 of the Northeast 1/4 of Section 36, N.89042'53"W., 1321.99 feet to the Southwest comer of said
Northwest 1/4 of the Northeast 1/4 of Section 36; thence along the South boundary of the Northeast
1/4 of the Northwest 1/4 of said Section 36, N.89043'25"W., 1321.07 feet to the Southwest comer of
said Northeast 1/4 ofthe Northwest 1/4 of Section 36; thence along the West boundary of said
Northeast 1/4 of the Northwest 1/4 of Section 36, N.00019'32"E., 1339.80 feet to the Northwest comer
of said Northeast 1/4 ofthe Northwest 1/4 of Section 36; thence N.26038'23"W., 741.21 feet; thence
N.64026'37"W., 629.60 feet; thence N.62051'24"E., 1014.82 feet; thence N.20031'43"E., 549.36 feet;
thence N.50014'25"W., 1535.13 feet; thence S.55036'40"W., 810.99 feet; thence S.65013'49"W.,
1389.45 feet to a point on a curve; thence Southwesterly, 1312.85 feet along the arc of a curve to the
left having a radius of 1150.00 feet and a central angle of 65024'34" (chord bearing S.32032'26"W.,
1242.71 feet); thence S.00011'02"E., 437.08 feet to a point on a curve, said point lying on the Westerly
boundary of THE GROVES PHASE lA, according to the plat thereof as recorded in Plat Book 39,
Pages 120 through 150, inclusive, of the Public Records of Pasco County, Florida; thence along said
Westerly boundary of THE GROVES PHASE lA, the following four (4) courses: 1) Southwesterly,
707.82 feet along the arc of a curve to the right having a radius of 550.00 feet and a central angle of
73044'10" (chord bearing S.36041'OO"W., 659.97 feet);
2) S.71 053'17"W., 446.91 feet; 3) S.18006'43"E., 630.30 feet;
Exhibit A 8
4) S.62019'10"W., 820.30 feet to a point on a curve on the Easterly right-of-way line ofD.S.
HIGHWAY No. 41 (State Road No. 45), per D.G.T. Right-of-way Map No. 544B - Road 5; thence
along said Easterly right-of-way line, the following four (4) courses: 1) Northerly, 497.06 feet along
the arc ofa curve to the right having a radius of5609.58 feet and a central angle of 05004'37" (chord
bearing N.20038'25"W., 496.90 feet); 2) N.18006'36"W., 1124.74 feet to a point on a curve; 3)
Northerly, 1414.88 feet along the arc of a curve to the left having a radius of23038.77 feet and a
central angle of 03031 '07" (chord bearing N.19051'24"W., 1414.66 feet) 4) N.21 037'29"W., 4520.38
feet; thence N.88044'55"E., 274.27 feet; thence S.01015'05"E., 150.00 feet; thence N.88044'55"E.,
77.14 feet to a point of curvature; thence Easterly, 357.96 feet along the arc ofa curve to the left
having a radius of 11350.00 feet and a central angle of 01 048'25" (chord bearing N.87050'42"E.,
357.94 feet) to a point on a curve; thence Easterly, 547.67 feet along the arc of a curve to the left
having a radius of 11350.00 feet and a central angle of 02045'53" (chord bearing N.89023'14"E.,
547.62 feet); thence N.50050'00"E., 1057.53 feet; thence N.25000'00"E., 1050.00 feet; thence
N.79000'00"E., 544.99 feet; thence N.56000'00"E., 356.34 feet; thence S.46000'00"E., 430.00 feet;
thence S.03050'00"W., 770.00 feet; thence S.55000'OO"W., 325.00 feet; thence S.33050'00"W., 375.00
feet; thence S.05039'58"E., 77.00 feet to a point on a curve; thence Easterly, 1944.04 feet along the arc
ofa curve to the right having a radius of711O.00 feet and a central angle of 15039'58" (chord bearing
S.87049'59"E., 1937.99 feet) to a point of tangency; thence S.80000'OO"E., 868.53 feet to a point of
curvature; thence Easterly, 1292.15 feet along the arc of a curve to the left having a radius of 11390.00
feet and a central angle of 06030'00" (chord bearing S.83015'00"E., 1291.46 feet) to a point of
tangency; thence S.86030'00"E., 210.00 feet; thence N.20035'08"E., 263.21 feet; thence
N.27050'00"W., 285.00 feet; thence N.35000'00"E., 840.00 feet; thence N.47050'00"E., 165.00 feet;
thence S.89000'OO"E., 255.00 feet; thence S.03050'OO"E., 150.00 feet; thence S.54050'OO"E., 400.00
feet; thence N.73000'OO"E., 270.00 feet; thence N.32000'00"W., 980.00 feet; thence N.51 050'OO"E.,
350.00 feet; thence N.22050'00"E., 700.00 feet; thence N.47050'00"W., 720.00 feet; thence
N.76000'00"W., 225.00 feet; thence N.12050'OO"E., 600.00 feet; thence N.78000'00"E., 575.00 feet;
thence N.13050'00"E., 730.00 feet; thence s.n 050'00"E., 925.00 feet; thence S.14050'00"E., 245.00
feet; thence N.84050'00"E., 200.00 feet; thence N.Ol oOO'OO"E., 525.00 feet; thence S.74000'OO"W.,
320.00 feet; thence N.14000'OO"E., 655.00 feet; thence N.62000'00"W., 555.00 feet; thence
N.04000'00"W., 645.00 feet to the POINT OF BEGINNING; thence N.82050'00"E., 210.00 feet;
thence N.10050'OO"W., 755.00 feet; thence S.04056'50"W., 770.61 feet to the POINT OF
BEGINNING.
Containing 1.816 acres, more or less.
ALTOGETHER containing 2,983.635 acres, more or less.
A map depicting the above description is attached as Exhibit A, Page 1 O.
Exhibit A
9
,
EXHIBIT B
Energy Conservation Allowance Plan
CGS agrees to pay to DEVELOPER an energy conservation allowance for each residence constructed
in the Project and that has qualified for payment based on following installation schedule ("Energy
Conservation Allowance"):
Energy Efficient Gas Central Home Heating System
Energy Efficient Gas Water Heater
Piping to Energy Efficient Pilotless Gas Range
Piping to Energy Efficient Gas Dryer
$270.00
$270.00
$ 85.00
$ 85.00
The total maximum energy conservation amount payable on each
Home that conforms to the schedule above $710.00
A request for payment of Allowance shall be submitted to Company within 90 days of issuance of the
Certificate of Occupancy for each unit. Requests for an Allowance after 90 days of issuance of a
Certificate of Occupancy will not be honored.
PD - (
.....
I J . .s
City Council
~~......~.gend.~.....~.~ver Memora ~.~..!:!.!!'~~~~,,_.,..
Tracking Number: 966
Actual Date: 12/02/2004
Subject I Recommendation:
Approve an agreement between THE FLORIDA COMMISSION ON COMMUNITY SERVICE
commonly referred to as VOLUNTEER FLORIDA and the CITY OF CLEARWATER, FLORIDA for cash
match funding of $52,163 for the period January 1, 2005 through December 31, 2005 for
AmeriCorps Clearwater, and approve 12.4 FTE positions, and that the appropriate officials be
authorized to execute same.
Summary:
1. In 2005, the Clearwater Police Department will replace St. Petersburg College as the lead
agency and grantee of the AmeriCorps Pinellas Program. Funding cuts rendered smaller
programs with the St. Petersburg Police Department and Pinellas County Sheriff's Office
ineffective, resulting in closure of those programs.
2. AmeriCorps Clearwater is designed to foster citizen responsibility, build neighborhood unity,
and provide educational opportunities. Each AmeriCorps member provides 1,700 hours annually
to promote a safer and friendlier place to live and visit and also serve as a conduit for getting
information out to those residents and visitors who are most affected by ongoing changes in the
City.
3. The Clearwater Police Department will benefit from the members' assistance with community
policing efforts and the opportunity to mentor and mold the police officers of the future.
Fourteen (14) full-time AmeriCorps members and one AmeriCorps Program Coordinator will be
assigned to the Clearwater Police Department.
4. The AmeriCorps members are considered volunteers who receive a living allowance/stipend of
$10,200 per year. The incumbent program manager, currently an employee of St. Petersburg
College, will become a city employee with the title "AmeriCorps Program Coordinator." There is
no obligation to keep these positions beyond the grant period.
5. A continuation funding request and application was submitted to The Corporation for National
and Community Service for Federal Assistance in the amount of $171,504, and was approved.
Funding for the cash match of $52,163 will be taken from Special project
181-99489-582000-521-000, AmeriCorps Project NUCOPS. Currently, $19,737.49 is available
from previous year program savings, and $40,000 is budgeted in the 2004/2005 current project
budget.
6. The Resource Management Committee has reviewed and approved this item.
7. A copy of the Agreement is available for review in the Office of Official Records & Legislative
Services.
Originating: Police
Section Consent Agenda
Category: Agreements/Contracts - with cost
Financial Information:
Type: Operating Expenditure
City Council
~~"""""~ ~9<~I~, da ~<~<~.~.~<<<..~w~!!!..~<!:.~_!!fI u m .,""
Bid Required? No
Bid Exceptions:
Sole Source
In Current Year Budget?
Yes
Budget Adjustment:
Yes
Budqet Adjustment Comments:
Currently, $19,737.49 is available from previous year program savings, and $40,000 is
budgeted in the 2004/2005 current project budget. Approved $171,504 continuation funding
request.
Current Year Cost:
$52,163.00
Appropriation Code(s)
181-99489
Amount
$52,163.00
Comments
City Match For AmeriCorps Grant
Review Approval
Sid Klein
11-04-2004 07:41:12
11-22-2004 09: 16:24
11-05-2004 15:57:38
11-17-2004 12:25:34
11-08- 2004 11:38:57
11-19-2004 12:47:39
Cvndie Goudeau
Tina Wilson
Garrv Brumback
Rob Surette
Bill Horne
f\. f"".
11.3
2004-2005 STANDARD CONTRACT
Contract 04AC045391
This agreement is made BETWEEN
The Florida Commission on Comm unity Service
commonly referred to as Volunteer Florida
401 South Monroe Street
Tallahassee, Florida 32301
referred to herein as the "Commission"
AND
City of Clearwater, Florida
on behalf of the Clearwater Police Department
645 Pierce Street
Clearwater, Florida 33756-5400
referred to herein as the "Provider"
The Provider, to be commonly referenced as "AmeriCorps Clearwater" will utilize AmeriCorps
members to assist with crime prevention and community policing efforts in Clearwater, Florida in
order to foster citizen responsibility, build neighborhood unity, and provide educational
opportunities, In consideration of the initial or continued contracted services by the Commission
and of the advantages and benefits received by the Provider by virtue of such relationship, the
receipt and adequacy of all of which considerations are hereby acknowledged, now therefore, in
consideration of the mutual covenants hereinafter set forth, the parties hereto agree as follows:
I. PROVIDER AGREEMENTS
A. Compliance.
1. The Provider is responsible for the compliance requirements applicable to CFDA
# 94,006 Federal Programs. These requirements are inclusive of the AmeriCorps
Provisions provided as Attachment III.
2. The Provider will rectify all compliance issues identified by the Commission in
writing within the time period set forth or all future reimbursements will be
withheld until the deficiencies are corrected. Written documentation should
include how all noted deficiencies were corrected or an acceptable justification;
action plan and timeline of compliance for any deficiencies not corrected within
the time period set forth,
B. Contract Renewal. This contract may be renewed on a yearly basis not to exceed
two (2) years beyond the initial contract. Such renewals shall be contingent upon
satisfactory performance evaluations, compliance, the availability of funds, and a
continuing AmeriCorps funding application in accordance with the Request for
Proposal requirements for the corresponding year. A contract amendment will be
executed for all renewals,
C. Program Name. The Provider may not change the program name without the prior
written approval of the Commission,
D. Program Performance Measures Objectives
1. Needs and Services (Intermediate Outcome) - AmeriCorps Clearwater
members will patrol the school grounds of the 2 local high schools for at least 3
days per week leading to 90% of the School Administration Staff feeling that the
presence and accomplishments of the AmeriCorps Clearwater membership
contribute to a safer school environment as demonstrated by an end-of-year
survey of the School Administration and supported by statistics logs.
2. Participant Development (Intermediate Outcome) - Police assignments,
mentoring, and training will lead to 90% of our program's members reporting and
demonstrating increases in policing knowledge, as measured at the midway point
of each program year through assessments provided by law enforcement
personnel (police mentors).
3. Strengthening Communities (Output) - AmeriCorps Clearwater members will
coordinate 2 events in low-income areas by engaging volunteers of all ages and
backgrounds from local communities that will become involved in community
strengthening, civic responsibility and/or safety activities. By the end of the
program year, the volunteers will contribute at least 500 hours of service, as
measured by volunteer logs.
4. Strengthening Communities (Output) - AmeriCorps Clearwater members will
support the Clearwater Police Department's (CPD) efforts to promote public
safety, public health, and disaster relief and preparedness related to homeland
security by assisting CPD personnel in educating and training the public during 2
or more seminars reaching 150 community members, conducting safety patrols of
specific critical infrastructure ("hot spots") for a minimum of 500 hours per year.
and providing perimeter traffic and security services for emergency incidents
requiring wide-area perimeters, as documented by the members' time sheets and
confirmation by CPD personnel.
5. Strengthening Communities (End Outcome) - Each AmeriCorps Clearwater
members will assist police units in the execution of crime prevention, traffic
control, and other details to provide services to residents resulting in saving at
least 180 hours of valuable officer time, valued at no less than $4,140 per member
by year end, as documented by forms and reports of the Clearwater Police
Department
Performance Measure Objectives may be revised only through the Corporation for
National and Community Service's Web Based Reporting System (WBRS),
E. Budget. Both a budget and budget narrative for the delivery of services described in
this contract are provided in Attachment II.
1. Match Requirements and In-Kind Contributions
a. The Provider must provide matching funds (cash) totaling a mmUllum of
twenty nine and seven tenths percent (29.7%) of the total for AmeriCorps
Member costs.
b. The Provider must provide matching funds (cash) and/or in-kind contributions
totaling a minimum of sixty and seven tenths percent (60.7%) of the total for
all other costs.
2. Budget Revisions. The Commission must be notified of all changes and the
purposes of changes to the budget. The Commission reserves the right to disallow
any reVISIOns.
3. Property. The Provider agrees to seek prior approval to purchase any equipment
and/or furniture not listed in Attachment II with a purchase price of $SOO or more
to be reimbursed by the Commission.
F. Reporting
1. Internet Access. The Provider agrees to provide the AmeriCorps Program
Internet access and e-mail capability.
2. Monthly Progress Reports. All first year AmeriCorps programs are required to
complete a monthly report by the fifteenth (ISth) calendar day of each month
during the contract period, The Commission reserves the right to request monthly
reports be submitted by any Provider.
3, WBRS Progress Reports. The Provider will submit Progress reports via the
Web Based Reporting System (WBRS) in accordance with the requirements of
the Commission and the Corporation for National Service as follows:
a. January, 200S- March 200S; due April IS, 200S
b. April, 200S-June, 2005; due July IS, 200S
c. July, 2005-September, 200S; due October IS, 200S
d. October, 200S-December 200S; due January IS, 2006
4. Recruitment Plan for Persons with Disabilities. The Provider will submit an
updated or revised Recruitment Plan for Persons with Disabilities between the
sixth and ninth month of the program.
5. WBRS FSR Reports. The Provider will submit Quarterly Financial Status
Reports using Form SF269A in WBRS as follows:
a. January-March 31, due April 29, 2005
b. April-June 30, due July 29,2005
c. July-September 30, due October 31, 2005
d. October-December 31, due February IS, 2006
6. WBRS Financial Reports for Reimbursement. The Provider will submit to the
Commission monthly financial reports for reimbursement consisting of a Periodic
Expense Report and Income Report, Both reports are standard forms on WBRS,
With the exception of the final financial reports, all reports for reimbursement are
due within the month following the period of report. If circumstances occur
delaying the reimbursement request, an explanation should be sent to the
Commission before the reimbursement request is due,
7. Final Financial Reports for Reimbursement. The Provider agrees to submit the
FINAL REPORT OF EXPENDITURES AND INCOME for payment within
forty- five (45) calendar days after the ending date of this contract or the date of
contract termination, whichever is earlier. If the Provider fails to submit the final
financial reports within the specified time, all rights to payment are forfeited,
8. Supporting Documentation. The Provider will submit supporting documentation
as requested for reported expenditures, At least once during the contract year the
Commission will request a prior month's supporting documentation.
9. Property. At the end of the contract the Provider agrees to submit a current
inventory list of all property (i,e. equipment and furniture) with a purchase price
of $500,00 or more bought with funds provided through this contract. This
property listing must include a description of the property. model number. serial
number, date of acquisition, cost, inventory number and information on the
location, condition, transfer, replacement or disposition of the property, The
Commission reserves the right to retrieve, upon termination of this contract, any
and all equipment and furniture purchased with funds provided through this
contract, or to receive repayment for funds provided through this contract used in
the purchase or any portion of such equipment or furniture.
10. Audits. The Provider agrees to provide the Commission financial and
compliance audits of the Provider with the management letter within ninety (90)
days of the end of the Provider's fiscal year and to ensure that all related party
transactions are disclosed to the auditor.
11. Other Reports. The Provider agrees to provide other reports as may be requested
by the Commission by an established deadline,
G. Staff Recruitment and Responsibilities
Staff positions, duties, responsibilities and the number of staff working in this
program may be revised if requested in writing by the provider and approved in
writing by the Commission, provided such revisions do not exceed original budgeted
amounts for staff The Provider will hire and maintain 1 Full-time Program Director
to be responsible for the overall management of the program.
H. AmeriCorps Member Recruitment and Responsibilities
1. Recruit a minimum of fourteen (14) AmeriCorps Members into full-time service
within sixty (60) days of implementation of this contract. The provider will recruit
Members who are representative of the community served. Members will be
provided with a living allowance of $1 0,197,00 per term of service.
2. Not more than three (3) of the AmeriCorps Members as stated in LH.1, above will
serve in the capacity of a Team Leader. In accordance with Attachment III of this
contract, a Team Leader is not allowed to supervise other AmeriCorps Members.
A Team Leader will be provided with a living allowance between $10,197.00 and
$11,197.00, The additional allowance is reflected in the Grantee Share of the
budget.
3. The Provider agrees to implement the Commission approved Recruitment Plan for
Persons with Disabilities,
4. The positions, position descriptions, and number of Members working in this
program may be revised if requested in writing by the provider and approved in
writing by the Commission.
S. A National Service Enrollment Form must be completed via WBRS for all
Members. The program should keep a hard copy of the member enrollment form
in a member file.
6. Member positions may only be revised through a Member Change of Status Form
completed via WBRS for each Member for the following conditions:
a. suspenSIOn;
b. ending service early;
c. reinstatement to service;
d. utilization of the Family Medical Leave Act; or
e. transfer to another AmeriCorps program. The program should keep a hard
copy in a member file.
7. A National Service Trust End of Term of Service/Exit Form must be completed
via WBRS for each Member upon completion of her/his term of service. The
program should keep a hard copy in a member file.
8. The Provider will submit approved forms in WBRS within 30 days upon a
member's enrollment in, completion of, lengthy or indefinite suspension from, or
release from, a term of service,
I. Partnership Development and Site Agreements
1. The Provider may enter into agreements with other private and public
organizations in the targeted communities to cooperate and coordinate the
provision of services under the terms of this contract
2. Such partnerships may include, but are not limited to, the following agreements:
a. contributions of cash support for the services provided under the terms of this
contract
b. contributions of in-kind support for the services provided under the terms of
this contract
c. coordination of service activities to prevent duplication of effort;
d. evaluation of service activities, Member development, etc.;
e. fundraising;
f. promotions or public relations; and
g. provision of member supervision and/or service site,
3. Agreements with partners to provide Member supervision and/or service sites
must be in writing and include the following items as appropriate:
a. description of services to be provided by Members;
b. designation of person(s) responsible for member supervision and verification
of member service hours;
c. description of prohibited member activities; and
d. other supervision or programmatic responsibilities,
4. The Provider shall include a list of its partner organizations on such materials as
may reasonably accommodate the listing, including;
a. brochures;
b. flyers;
c. posters; and
d. public service announcements.
J. Disaster Preparedness, Response, Recovery and/or Mitigation. The Corporation
for National Service (under agreement with the Federal Emergency Management
Agency) and the Commission (under agreement with the Florida Department of
Community Affairs Division of Emergency Management) requires the availability of
AmeriCorps Members to be assigned to provide assistance in disaster preparedness,
response, recovery, and/or mitigation activities. As part of its commitment to
community service, the provider agrees to train its members and staff to assist in disaster
preparedness, response, recovery and mitigation activities. Volunteers working with the
program will be given the option to participate in the training, The types of events that
could impact Florida include hurricanes, tornadoes, floods, other weather related events
and man-made events, such as hazardous materials accidents, Program members,
volunteers. and staff, based on the nature of the program, will be trained to assist with any
of the following activities: community preparedness education, shelter operations, mass
feeding, debris removal, community outreach, and other disaster recovery related
activities, Program members and volunteers may be requested to provide assistance
anywhere in the State of Florida, Provider staff and AmeriCorps Members shall work
under the direction and control of the Provider and shall not be considered volunteers to
FEMA, DCA or DEM for purposes of Chapter IIO(IY) F.S. Requests for disaster
preparedness, response, recovery and mitigation assistance will be made on behalf of
the Florida Governor's State Coordinating Officer through the Commission's Director
of Emergency Management after consulting with the state Corporation for National
Service office disaster coordinator. All related activities undertaken by a program will
be done in cooperation with the local office of emergency management. Approved
expenses incurred as a result of provider activities related to disaster preparedness,
response, recovery and mitigation would be reimbursed, According to State of Florida
and Federal regulations, non-profit entities responding in times of disaster may request
reimbursement from the Federal Emergency Management Agency, Up to 75% of
l'ligihll' l'xpenses may be reimbursed. The State of Florida, on a disaster specific basis,
may cover the remaining 25% of eligible expenses for private non-profit entities.
Providers responding at the request of the State Coordinating Officer would be eligible
for reimbursement of disaster related expenses. The Commission will furnish the
provider with additional information about expenditure reimbursement. Training costs
will not be reimbursable unless arrangements are made in advance. The Commission
has identified low and no cost training opportunities statewide. Providers may
contact the Commission's Director of Emergency Management for specific training
questions and opportunities.
K. Training an'd Technical Assistance. Training and/or technical assistance provided
to staff and/or AmeriCorps Members under this contract must be designed to facilitate
the improvement of the services, strengthen the development of the staff and the
AmeriCorps Members, and strengthen the communities in which services are
provided, Training and/or technical assistance may be provided directly by the
Provider, a community partner or other local resources requested from the
Commission, or coordinated through the Commission,
1. Staff. The Provider will ensure the provision of training and/or technical
assistance to ensure successful program implementation and operation, Required
trainings include;
a. four (4) Quarterly Program Director Meetings; and
b. one (1) disability inclusion training sponsored by the Commission and one (1)
disability inclusion training of format approved by the Commission.
Other suggested topics are, but are not limited to;
a. supervisory techniques;
b. AmeriCorps member evaluation;
c. working with the media;
d. AmeriCorps member motivation; and
e. report writing,
2. AmeriCorps Members. The Provider will ensure the prOVISIOn of training
and/or technical assistance for members. Required trainings include:
a. American Red Cross-certified or comparable CPR and First Aid training; The
Provider will have all members trained or certified in CPR and First Aid.
b. diversity appreciation;
c. citizenship;
d. disability awareness and sensitivity.
Other suggested topics are, but are not limited to:
a, team building;
b. conflict resolution;
c. career development;
d. Life after AmeriCorps.
L. National Service Activities. The Provider will schedule and conduct a at least one
direct service activities designed for and conducted as part of the Seasons of Service.
the designated national service days of the Corporation of National Service, during
the contract period.
M. Quality Assurance and Evaluation
1. The Provider will track and document progress made toward accomplishing the
deliverables of this contract.
2. The Provider agrees to facilitate, implement and participate in technical
assistance, external reviews, and other continuous improvement activities related
to the services.
3. The Provider agrees to permit persons duly authorized by the Commission to
inspect any records, papers, documents, facilities, goods and services of the
Provider that are relevant to this contract, andlor to interview any clients,
employees, volunteers, or any other parties affiliated with the Provider to be
assured of satisfactory performance of the terms and conditions of this contract.
4. The Provider will conduct formative evaluations to examine primary stakeholder
satisfaction with the program services, including at a minimum:
a. AmeriCorps members;
b. service recipients; and
c. community residents.
5. Provide any requested information in a timely fashion in the format specified by
the Commission;
6. Facilitate contact with community agencies and lor individuals for the
Commission or its consultant;
N. Records and Documentation.
1. The Provider agrees to maintain records of deliverables, including reports and
program and participant data,
2. The Provider agrees to maintain fiscal records and documents (including
electronic storage media) in accordance with generally accepted accounting
principles and practices which sufficiently and properly reflect all revenues and
expenditures of funds related to this grant.
3. The Provider agrees to assure that records will be subject, at all reasonable times,
to inspection. review or audit by Commission personnel and/or individuals
authorized by the Commission.
4. The Provider agrees to allow public access to aU documents, papers. letters. or
other materials subject to the provisions of Chapter I 19, F.S. ilnd milde or
received by the Provider in conjunction with this contract The Provider's refusal
to comply with this provision will constitute a breach of contract
O. Safeguarding Information. The Provider agrees not to use or disclose information
concerning a recipient of services under this contract for any purpose not in
cunfurmity with the state regulations (I 19, F,S) and federal regulations (45 CFR, Part
205.50), except upon written consent of the recipient or the recipient's responsible
parent or guardian when authorized by law.
P. Assignments and Subcontracts. The Provider agrees not to assign responsibility of
this contract to another party or to subcontract any portion of the work contemplated
under this contract without prior written approval of the Commission. No such
approval by the Commission will be deemed in any manner to provide for the
incurrence of any obligation of the Commission in addition to the total dollar amount
agreed upon in this contract All such assignments or subcontracts will be subject to
the terms and conditions of this contract and to any conditions of approval that the
Commission may deem necessary, The Provider agrees to include audit and record
keeping requirements in all approved agreements entered into by the Provider for any
other subcontracted services in the amount of $25,000 or greater.
Q. Indemnification. Each party hereto agrees that it shall be solely responsible for the
wrongful acts of its employees and agents, However, nothing contained herein shall
constitute a waiver by either party of its sovereign immunity or the provision of
Section 76g.2g, Florida Statute.
R. Incident Reporting. In compliance with Chapter 415 F,S. and 39 F.S" an employee
or agent of the Provider who knows, or has reasonable cause to suspect that a child,
elder, or adult with a disability is or has been abused, neglected or exploited, shall
immediately report such knowledge or suspicion to the abuse registry operated by the
Florida Department of Children and Families on the single statewide toll-free
telephone number, l-800-96-ABUSE (800-962-2873).
S. Sponsorship
1. The Provider agrees to, in publicizing, advertising, or describing the sponsorship
of a program funded wholly or in part by the Commission, state "Sponsored by
Provider and Volunteer Florida", If the sponsorship reference is in written
material, the words "Volunteer Florida" shall appear in the same size letter or type
as the name of the Provider.
2. The Provider agrees to incorporate the Volunteer Florida logo as appropriate on
all letterhead, brochures, newsletters, business cards, stationery. posters. flyers.
and other written and pictorial communication media for all programs funded
wholly or in part by the Commission.
3. The Provider agrees to notify the Communications Director of the Commission as
soon as possible when engaging in contact with the media; and to provide the
Commission's tag line to all media contacts for all programs funded wholly or in
part by the Commission.
T, Purchasing, Procurement of Materials with Recycled Content. The Provider
agrees that any products or materials that are the subject or are required to carry out
this contract shall be procured in accordance with the provisions of s.403.7065 and
287,045, F,S,
U. Conflict of Interest. The Provider shall affirm that neither the Provider nor any of its
directors, officers, members or employees has any interest nor shall acquire any
interest, directly or indirectly, which would conflict in any manner or degree with
performance of the service hereunder. The Provider further agrees that in the
performance of the service, no person having such interest shall be employed by the
Provider.
V. Nepotism. No person may hold a job or position with the Provider in which a
member of his/her immediate family exercises supervisory authority within the
program, A member of an immediate family includes: husband, wife, father, father-
in-law, mother, mother-in-law, brother, brother-in-law, sister, sister-in-law, son, son-
in-law. daughter. daughter-in-Jaw and separated spouses.
W. Sustainability. It is understood that the funding provided by the Commission for this
program is "seed money" to be used by the Provider to initiate a program, with the
assistance of the Commission, that will eventually be funded and managed locally
with minimal federal funds or responsibility for the program. To this purpose, the
Provider agrees to make a good faith effort to develop resources that will be applied
to the future operation of this program. Resources that are acquired during the course
of this contract will be reported to the Commission.
X. Accessibility and Prohibited Discrimination. The Provider will ensure accessibility
and prohibit discrimination in accordance with AmeriCorps Provisions C. 30,
II. COMMISSION AGREEMENTS
A. Reimbursements. Complete and accurate reimbursement requests (WBRS Periodic
Expense Report and Income Report) will be processed at least bi-monthly by the
Commission and submitted to the Commission's fiscal agent, Tallahassee Community
College, for payment
R. Technic~J Assist~nce. The Commission 8grees to provide or 8ssist the Provider in
obtaining technical assistance and training as needed by the Provider for this contract
C. Site Visits. Following any quality assurance/continuous improvement review, the
Commission will deliver in a timely fashion to the Provider a written report with
comments and recommendations regarding the manner in which services are being
provided.
D. Contract Renewal. The Commission will notify the Provider in writing of the
submission date and requirements for the continuing application for contract renewal.
III. PROVIDER AND COMMISSION MUTUAL AGREEMENTS
A. Effective and Ending Dates. The contract shall begin January 1, 2005 and end
December 31,2005,
B. Contract Funding Amount. The maximum amount reimbursable under this
agreement is $171,504.00.
C. Type of Contract. This will be a cost reimbursement contract Payment for the
contracted services will be contingent upon the documented allowable expenditures
for the specified contract period, The Commission's performance and obligation to
pay for services rendered under this contract is contingent upon available funding
from the Corporation for National and Community Service and the State of Florida.
D. Ownership and Sharing of Grant Products. Unless otherwise specified, the
Provider owns and may copyright any work that is subject to copyright, including
software designs, training manuals, curricula, videotapes and other products produced
under the grant However, the Provider may not sell any work that includes the
Commission logo without prior Commission written approval. The Provider, to the
extent possible, agrees to make products produced under this contract available at the
cost of reproduction to others in the field, The Commission retains royalty-free, non-
exclusive and irrevocable licenses to obtain, use, reproduce, publish or disseminate
products, including data, produced under this contract and to authorize others to do
so, The Commission may distribute such products through a designated
clearinghouse.
E. Contact Protocol. The primary contact for all matters relating to this program shall
be the staff listed in Section III. I of this Contract, unless otherwise specified in
writing. The primary contact person will notify all parties in writing of alternative
contacts should he/she not be available,
F. Contract Amendments. All contract amendments will utilize the format of
Attachment I and must be signed by the Commission, Tallahassee Community
College and Lhe Provider.
G. Termination.
1. Termination at Will. This contract may be terminated by either party upon no
less than sixty (60) calendar days notice in writing, without cause, unless both
parties mutually agree upon a lesser time. Said notice shall be delivered by
certified mail, return receipt requested, or in person with proof of delivery.
2. Termination Because of Lack of Funds. In the event funds to finance this
contract become unavailable, the Commission may terminate the contract upon no
less than twenty-four (24) hours notice in writing to the Provider. Said notice
shall be delivered by certified mail, return receipt requested or in person with
proof of delivery. The Commission shall be the final authority as to the
availability of funds.
3. Termination for Breach. This contract may be terminated for non-compliance
and/or breach of contract by the Provider upon no less than twenty-four (24)
hours notice. If applicable. the Commission may employ the default provision in
Chapter 60A- 1.006(3), F AC. Waiver of breach of any provisions of this contract
shall not be deemed to be a waiver of any other breach and shall not be construed
to be a modification of the terms of this contract The provisions herein do not
limit the Commission's right to remedies at law or to damages,
H. Overpayment. In the event that the Commission, the Provider or an auditor discovers
an overpayment has been made, the Provider will repay the overpayment within thirty
(30) calendar days unless extenuating circumstances are deemed to exist by the
Commission,
I. Notice and Contact.
1. The name, address and telephone number of the Commission's Program
Consultant for the contract is:
Ericka Zdenek
Program Consultant
401 South Monroe Street
Tallahassee. FL 32301
(850) 921-5172
ericka@volunteerflorida.org
2. The name, address, and telephone number of the representative for the
Provider responsible for the administration of the program under this contract
IS:
Ekaterini Gerakios
AmeriCorps Program Director
Clearwater Police Department
645 Pierce Street
Clearwater, FL 33756-5400
(727) 562-4142
kgerakio@clearwater-fl.com
3. In the event that different representatives are designated by either party after
execution of this contract, notice of the name, address and telephone number
of the new representative will be rendered in writing to the other party and
said notification attached to originals of this contract
J. All Terms and Conditions Included. This contract and its attachments as
referenced below contain all the terms and conditions agreed upon by the parties,
Attachment I - Contract Amendment Form
Attachment II - Budget and Budget Narrative
Attachment III - AmeriCorps Provisions
IN WITNESS THEREOf, the parties hereto have caused this contract to be executed by their
undersigned officials as duly authorized.
PROVIDER
Countersigned:
CITY OF CLEARWATER, FLORIDA
By:
Brian], Aungst
Mayor-Commissioner
William B. Horne 11
City Manager
Attest:
ko ben J S rette
Assistant ity Attorney
Cynthia.E. Goudeau
City Clerk
COMMISSION
Signed by:
Signature
Name
Title
Date
ATTACHMENT I
Amendment #
This amendment is made BETWEEN
The Florida Commission on Community Service
commonly referred to as Volunteer Florida
401 South Monroe Street
Tallahassee, Florida 32301
referred to herein as the "Commission"
AND
City of Clearwater, Florida
on behalf of the
Clearwater Police Department
645 Pierce Street
Clearwater, Florida 33756-5400
. " referred to herein as the "Provider" amenqs.
Contract 04AC045391
1. Section
, Paragraph
is hereby amended to read:
2, This amendment shall begin on . , or on the date on which
the amendment has been signed by both parties, whichever is later.
3. All provisions in the contract and any attachmehts thereto in conflict with this amendment
shall be and are hereby changed to conform with this amendment.
4, All provisions not in conflict with this amendment are still in effect and are to be performed
at the level specified in the contract.
5. This amendment and all its attachments are hereby incorporated into and made a part of the
above cited contract.
IN WITNESS THEREOF, the. parties hereto have caused this contract to be executed by their
undersigned officials as duly authorized.
PROVIDER
Countersigned:
CITY OF CLEARWATER, FLORIDA
By:
William B. Horne II
City Manager
Brian 1. Aungst
Mayor-Commissioner
Approved as to form:
Attest:
Cynthia E. Goudeau
City Clerk
Ro bert J. S'urette
Assistant City Attorney
COMMISSION
Signed by:
Signature
Name
Title
Date
Budget Narrative for 04AC045391 .'
ATTACHMENT II
Budget Narrative: AmeriCorps Pinel/as for Clearwater Police Department
Page 1 (
Section I. Program Operating Costs
A. Personnel Expenses
PositionrriUe -Qty -Annual Salary -% Time
CNCS Share
Grantee Share
Total Amount
Law Enforcement Staff time: - 14 person(s) at 45500 each x 7.79 % usage
o
42,320
Program Director: - 1 person(s) at 42320 each x 100 % usage
37,500
49,622
CA TEGORY Totals
37,500
54,
91,942
B. Personnel Fringe Benefits
Purpose -Calculation -Total Amount
CNCS Share Grantee Share
Total Amount
Benefits for Program Director: 26% of salary
11 ,003 0
11,003
CATEGORY T
11 ,003 0
11,003
C. Travel
Staff Travel
CA TEGORY Totals
CNCS Share Grantee Share Total Amount
420 0 420
400 I 0 400
442 0 442
1,262 0 1,262
Purpose -Calculation
Mileage reimbursement for Program Director's out-of-district required travel to
quarterly state PO meetings in Oveido: 4 PO meetings at 270 miles roundtrip
@ $0.37/mile plus tolls
Local iravel necessarY to monitor' member acthilHes and attend community
and staff meetings: 90 miles/month for 12 months @ $0.37/mile
Travel to Volunteer Florida for meeting or training: Airfare to Tallahassee
($200), 2 nights lodging @ $1 DO/night, 2 meals/day at $21 per day
Member Travel
CA TEGORY Totals I
CNCS Share Grantee Share II Total Amount I
0 11 ,1 00 I 11,100 I
0 11,100 I 11,1 00 I
Purpose -Calculation
Member travel to assignments and service projects: 2,500 miles/month @
$0.37/mile for 12 months
D. Equipment
Item/Purpose -Qty -Unit Cost
CNCS Share Grantee Share
Total Amount
CA TEGORY Totals
o 0
o
Budget Narrative for 04AC045391
E. Supplies
ATTACHMENT II
Page 2 of
I Item -Calculation I CNCS Share Grantee Share I Total Amount I
AmeriCorps Pinellas uniforms: 14 members @ $35 allowance per member 490 0 I 490 I
D
Office supplies: $20/month for paper, pens, printer cartridges, etc. The
Clearwater Police Department (CPD) will provide $1,500 inkind for additional 1,500 1,740
supplies
CPO uniforms, safety vests, and helmets: CPD uniform materials
$330/member for 14 members, safety vests for special assignments $399 0 8,442 8,442
each for 8 members, helmets for trail patrol $45 each for 14 members.
CA TEGORY Totals 730 I 9,942 I 10,~1
F. Contractual and Consultant Services
Purpose -Calculation -Daily Rate CNCS S - ntee Share ~. A,,, ,ount
CATEGORY Totals 0 0 0
G. Training
Staff Training
- ". . .... . .
Purpose -Calculation -Daily Rate II CNCS Shar II ~_ tee Share 11 Total Amount ]
II
Staff training (new Program Director in 2004): 1 day worth of training- Daily I 100 II 0 II 100 ]
Rate of 1 00
I CATEGORY Totals II 100 II 0 II 100 1
Member Training
I Purpose -Calculation -Daily Rate I CNCS Share I Grantee Share Total Amount
Food for member reflection exercises: 2-3 per year- Daily Rate of 350 0 I 350J
First Aid and CPR: $60 per memberfor 14 members- Daily Rate of 840 0 I 840 I
Intro to Community Policing training - provided by RCPI: $270 per 4-hour 0 270 270
c1ass- Daily Rate of
Ethics training - provided by RCPI: $260 per class (estimated 4 hours)- Daily 0 260 260
Rate of
Understanding Disability - 2 hours - provided by SPC: 2 hours @ $50/hour- I 0 I 100 100
Daily Rate of
Cultural Diversity - provided by SPC: 4 hours @ $30/hour- Daily Rate of I 0 I 120 120
Conflict Resolution - provided by SPC: 4 hours @ $30/hour- Daily Rate of I 0 II 120 II 120 l
Traffic Direction - provided by the Clearwater Police Department (CPD): $150- I 0 I 150 150
Daily Rate of
CPO Rules and Regulations training: 1.5 hours @ $30/hour- Daily Rate of I 0 I 45 45
I II I
fi 11" .111'" T1.....rlln1f"nt"o/..?n:1nrloj" ?n~f"ttinO',,\nFR A KTK\ f)p"k-tnn\ ?nn'i' ?nn'iO/n ?nrnntr<lC't\ A tt<l rh1"Y\ ",,.,+0/. '}()TT
11/nll')/tAf
Budget Narrative for 04AC045391
ATTACHMENT II
Page 3 0
CPO Radio/Communications training: 2 hours @ $30/hour- Daily Rate of 0 60 60
Homeland Security training: 4 hours @ $30/hour- Daily Rate of 0 120 120
Code Enforcement training - provided by the Community Response Team: 2 0 50 50
hours @ $25/hour- Daily Rate of
Room(s) for training: $50/day for 5 days- Daily Rate of 50 0 250 250
CA TEGORY Totals 1,190 I 1,545 I 2,735
H. Evaluation
Purpose -Calculation -Daily Rate
II
CATEGORY Totals II
CNCS Share II
o /I
Grantee Shar II "'~tal Amount
o II 0
I. Other Program Operating Costs
Purpose -Calculation CNCS Share Grantee Share =r=;::; Amount
Film purchase and development to document activities: $15-$20 per month for 200 0 200
12 months
Office space provided by the Clearwater Police Department: $500/month for 0 6,000 6,000
12 months
Nextel telephone for Program Director: $25/month for 12 months 0 300 300
Unanticipated costs: 100 0 100
Travel to CNCS-Sponsored Meetings: 250 I o II 250 I
CA TEGORY Totals 550 I 6,300 II 6,850 I
I SECTION Totals II 52,335 I 83,329 II 135,664 I
Section II. Member Costs
A. Living Allowance
.
Item - # Mbrs wI Allow -Allowance Rate - # Mbrs wlo Allow CNCS Share I Grantee Share Total Amount
.
Full Time (1700 hrs): 14 Member(s) at a rate of 10271 each 102,815 40,979
Members W/O allowance 0 143,794
Half Time (900 hrs): 0 Member(s) at a rate of 0 each 0 o I o I
Members W/O allowance 0
Reduced Half Time (675 hrs): 0 Member(s) at a rate of 0 each I 01 0
Members W/O allowance 0 0
Quarter Time (450 hrs): 0 Member(s) at a rate of 0 each 0 0
Members W/O allowance 0 0
Minimum Time (300 hrs): 0 Meml;Jer(s) at, a rat~ qf 0 each o I ' . 0 I
Members W/O allowance 0 0
2nd Year of 2- Year Half Time: 0 Member(s) at a rate of 0 each I o II 0 I o I
Members W/O allowance 0
fi J ~. 11r.' \T1()(".lIm~nts%?O~ncl%?OS~ttinO"s\nFR A KTK\ T)p<;:l<trm\ Jnn,,\ ')nn"O/n ')nl'"....t..""t\ ^ ttMh~ ~_+n/ 'HUT
1., In ,........n..r..
CATEGORY Totals
102,815 40,979
143,794
Page 4 of
I
Budget Narrative for 04AC045391
ATTACHMENT II
B. Member Support Costs
I Purpose -Calculation I CNCS Share Grantee Share Total Amount
FICA for Members: 7.65% of "total yearly living allowance" for Medicare. 7,921 3,080 11,001
Please note that 13 members will , ,
Worker's Compensation: The City of Clearwater will provide worker's 0 3,000 I 3,000 I
compensation
Health Care: Estimated $1,464 per year per member for 8 members.
Budgeted only for 8 members because our members are typically college 8,433 3,279 11,712
students who are covered under their parents' insurance and therefore decline
the one provided by the program.
CA TEGORY Totals 16,=1f 9,359 25,713
I SECTION Totals II 119,16911 50,338 " 169,507 I
Section III. Administrative/Indirect Costs
A. Corporation Fixed Percentage
I Item -Calculation I CNCS Share Grantee Share I Total Amount I
Corporation Fixed Amount: 0 I 0 II 0 I
Commission Fixed AmoLiht:l%fbrAdmiri.Cdsts' (NOT INlCUDED IN . "
SUBGRANTEE BUDGET) 1,715 0 1,715
CATEGORY Totals 1,715 0 1,715
8. Federally Approved Indirect Cost Rate
Calculation -Cost Basis -Cost Type -Rate - Rate Claimed CNCS Share Grantee Share Total Amount
I CATEGORY Totals I 0 0 I 0 I
I SECTION Totals " 1,715 II 0 " 1,715 I
I BUDGET Totals " 173,219 II 133,667 " 306,886 I
I Total FTEs II 14.00 I
- . . CosUFTE I 12,373 I . "
Source of Funds
I Section II Description I
The Clearwater Police Department will provide $4,820.00 as cash match
Section I. Program Operating Costs and $78,509 as in-kind match. The Corporation would need to provide
$52,335.00.
I I The Clearwater Police Department will provide $47,343.00 as cash
-t, 1 "". / /1' ,\ lIr\F'l1l'Yl",ntco,ln ') ()",nrloln ')()<;:",tt;nnc\r;.p'R A TZTl<\ n",,,lrtr\n\")()()<;\ ')()()<;Ol-, ")()r"'...+_nn+\ ^ Hnn 1-._ __",0/ "lfHT
1 1 1(""\ Ir""\ A" .
Budget Narrative for 04AC045391
ATTACHMENT II
Page 5 0
Section II. Member Costs
match (which translates to almost 28% of the member costs) and
$3,000.00 as in-kind match. The Corporation would need to provide
$119,170.00.
Section III. Administrative/lndirect Costs
fiJp' //r.\nnrllmpnt<::% 7 O::lnrlo/n 70~pttin(J<::\GFR A KTK\ Dp<::lctnn\70n.:;'\7no"o/n '")orrmtr.,,,t\ ^ tt.,,,l.~~~+o/ ''If\TT
1 1 In '^^^
ATTACHMENT III
Key Changes to 2004 AmeriCorps Provisions
Section A - Definitions
This section was revised to update the following definitions:
(16) OMB
Section B - AmeriCorps Special Provisions
Section 16 - Reportinl! ReQuirements
(a) Financial Status and Progress Reports
i. Changed to reflect the use of eGrants for submitting FSRs to the Corporation
Section 22 - Financial Manal!ement Provisions
(d) Audits - This section has been revised to conform to the new $500,000 audit threshold
effective December 31,2003.
ATTACHMENT III
AmeriCorps Provisions
The AmeriCorps Provisions are binding on the Grantee, By accepting funds under this Grant,
the Grantee agrees to comply with the AmeriCorps Provisions, all applicable federal statutes,
regulations and guidelines, and any amendments thereto, The Grantee agrees to operate the
funded Program in accordance with the approved Grant application and budget, supporting
documents, and other representations made in support of the approved Grant application, The
Grantee agrees to include in all sub grants the applicable terms and conditions contained in this
award.
For the purposes of these Provisions, AmeriCorps refers to AmeriCorps*State,
AmeriCorps*National and AmeriCorps*Tribes and Territories Programs only. All applicable
Provisions of the Grant including regulations and OMB circulars that are incorporated by
reference shall apply to any Grantee, sub-Grantee, or other organization carrying out activities
under this award.
A. DEFINITIONS
B. AMERICORPS SPECIAL PROVISIONS
1 . Purpose of A ward
2. Affiliation with the AmeriCorps National Service Network
3. Local and State Consultation
4, Prohibited Program Activities
5. Fund Raising
6, Eligibility, Recruitment, and Selection
7. Training, Supervision, and Support
8. Terms of Service
9, Release from Participation
10. Minor Disciplinary Actions
11. Living Allowances, In-Service Benefits, and Taxes
12, Post-Service Education Awards
13, Matching Requirements
14. Member Records and Confidentiality
IS. Budget and Programmatic Changes
16. Reporting Requirements
17. Grant Period and Incremental Funding
18. Performance Measurement and Evaluation
C. GENERAL PROVISIONS
19, Legislative and Regulatory Authority
20. Other Applicable Statutory and Administrative Provisions
21. Responsibilities under Grant Administration
22, Financial Management Provisions
23. Administrative Costs
24. Equipment and Supply Costs
25. Project Income
Final- February 2004
2
26, Payments under the Grant
27. Retention of Records
28, Site Visits
29, Liability and Safety Issues
30, Drug-Free Workplace
31. Non-Discrimination
32, The Office of the Inspector General
33. Supplementation, Non-Duplication, and Non-Displacement
34, Grievance Procedures
35, Ownership and Sharing of the Award Products
36. Publications
37, Suspension and Termination of the Award
38. Order of Precedence
Final- February 2004
3
ATTACHMENT III
ATTACHMENT III
A. DEFINITIONS
For purposes of this Grant the following definitions apply:
1. Act means the National and Community Service Act of 1990, as amended (42 U,S,c. 12501 et
seq.)
2. Administrative Costs are expenses -associated with the overall administration of a Program,
and are defined in the General Provisions, in the Administrative Costs section.
3. AmeriCorps National Service Network means AmeriCorps*State, AmeriCorps*National,
AmeriCorps*Tribesand Territories, Volunteers in Service to America (VISTA), and National
Civilian Community Corps (NCCC) Programs taken together as programs dedicated to national
service. VISTA is authorized under the Domestic Volunteer Service Act (42U.S.C. 4950 et seq.).
NCCC is authorized under the National and Community Service Act (42 U.S.c. 12611 et seq)
4. Approved National Service Position means a national service position for which the
Corporation has approved the provision of a national service education award as one of the
benefits to be provided for successful service in the position.
5. Corporation means the Corporation for National and Community Service established under
section 191 of the Act (42 U.S.c. 12651).
6. Community beneficiaries refer to those persons who receive services or benefits from a
program, but are not AmeriCorps members or staff.
7. Education Award means an award provided to a member who has successfully completed a
required term of service in an approved national service position and who otherwise meets the
eligibility criteria in the Act An education award may be used: (1) to repay qualified student
loans. as defined in the Act; (2) toward educational expenses at a Title IV Institution of Higher
Education; and (3) toward expenses incurred in participating in school-to-work programs
approved by the Secretaries of Labor and Education,
8. End-outcome indicators specify changes that have occurred in the lives of the community
beneficiaries and/or members that are significant and lasting. These are actual impacts, benefits
or changes for participants during or after a program.
9. Evaluation uses scientifically-based research methods to systematically investigate, on a
periodic basis, the effectiveness of AmeriCorps Programs by comparing the observed program
outcomes with what would have happened in the absence of the program,
10. Faith-based organizations include:
. Religious congregations (church, mosque, synagogue, temple, etc.);
· Organizations, programs, or projects operated or sponsored by a religious congregation;
· Nonprofit organizations that clearly show by their mission statements, policies, and/or
practices that they are religiously motivated or religiously guided institutions;
Final- February 2004
4
ATTACHMENT III
. Organizations that, when asked, designate themselves as a faith-based or religious
organization; or
. Collaborations of organizations lead by an organization from the previously described
categories, or of which half or more of the members are from the previously described
categories.
11. Grantee, for the purposes of this agreement, means the direct recipient of this Grant The
term sub-Grantee shall be substituted for the term Grantee where appropriate, The Grantee is
also responsible for ensuring that Sub-Grantees or other organizations carrying out activities
under this award comply with these provisions, including regulations and OMB circulars
incorporated by reference, The Grantee is legally accountable to the Corporation for the use of
Grant funds and is bound by the provisions of the Grant.
12. Indian Tribe means a federally-recognized Indian tribe, band, nation, or other recognized
group or community, including any Native village, Regional Corporation, or Village
Corporation, as defined under the Alaska Native Claims Settlement Act (43 U.S.c. 1602), that
the United States Government determines is eligible for special programs and services provided
under federal law to Indians because oftheir status as Indians. An Indian tribe also includes any
tribal organization controlled, sanctioned, or chartered by one of the entities described above,
13. Intermediate-outcome iudicators specify changes that have occurred in the lives of
community beneficiaries and/or members, but are not necessarily a lasting benefit for them,
They are observable and measurable indications of whether or not a program is making progress,
14. Member means an individual:
a. Who is enrolled in an approved national service position;
b. Who is a U.S. citizen, U.S. national or lawful permanent resident alien of the United
States;
c. Who is at least 17 years of age at the commencement of service unless the member is
out of school and enrolled
i. in a full-time, year-round youth corps Program or full-time summer
Program as defined in the Act (42 U.S.c. 12572 (a) (2)), in which case he
or she must be between the ages of 16 and 25, inclusive, or
ii. in a Program for economically disadvantaged youth as defined in the Act
(42 D.S.C. 12572 (a)(9)), in which case he or she must be between the
ages of 16 and 24, inclusive; and
d. Has a high school diploma or an equivalency certificate (or agrees to obtain a high
school diploma or its equivalent before using an education award) and who has not
dropped out of elementary or secondary school in order to enroll as an AmeriCorps
member (unless enrolled in an institution of higher education on an ability to benefit basis
and is considered eligible for funds under section 484 of the Higher Education Act of
1965, 20 U .S.c. 1091), or who has been determined through an independent assessment
Final - February 2004
5
ATTACHMENT III
conducted hy the Program to he incapable of obtaining a high school diploma or its
equivalent
15. National Service Trust is the account established in the U.S. Department ofthe Treasury
under the Act (42 U.S.c. 12601) for the purpose of holding and making payments of education
awards and other education benefits to AmeriCorps members.
16.0MB refers to the Executive Office ofthe President Office of Management and Budget.
17. Out-Of-School Youth means youth age 16 and older who have either dropped out or
otherwise have no permanent affiliation with a secondary schooL This definition does not
include individuals who are in between school years and fully intend to return to school in the
falL
18. Output indicators are the amounts or units of service that members or volunteers have
completed, or the number of community beneficiaries the program has served, Output indicators
do not provide information on benefits or other changes in the lives of members and/or
community beneficiaries.
19. Parent Organization means a grantee that is responsible for implementing and managing a
National Direct AmeriCorps Program,
20. Performance Measures are indicators intended to help a grantee measure the results of an
AmeriCorps program's activities on community beneficiaries and participants. Performance
measures are based on outputs, intermediate outcomes, and end outcomes,
21. Program means a national service Program, described in the Act (42 U.S.C. 12572(a)),
22. Project means an activity or set of activities carried out under a Program that results in a
specific, identifiable community service or improvement:
a. That otherwise would not have been made with existing funds; and
b. That does not duplicate the routine services or functions of the organization to which
the members are assigned,
23. Project Sponsor means an organization or other entity that has been selected to provide a
national service position for a member.
24. Service Recipient means a community beneficiary who receives a service or benefit from
the service of AmeriCorps members.
25. State Commission means the Commission on National and Community Service established
by a state pursuant to the Act (42 U.S.c. 12638), including an authorized alternative
administrative entity to administer the state's national service plan and national service programs
and to perform such other duties prescribed by 45 C.F.R. 2550.80,
Final - February 2004
6
ATTACHMENT III
26. Sub-Grantee refers to an organization receiving AmeriCorps Grant funds from a Grantee of
the Corporation, '
Final - February 2004
7
ATTACHMENT III
B. AMERICORPS SPECIAL PROVISIONS
1. PURPOSES OF THE GRANT.
The general purposes of this Grant are "Getting Things Done" in communities, strengthening the
ties that bind communities together, and developing the citizenship and skills of AmeriCorps
members, Activities funded through this Grant must help engage Americans of all backgrounds
as members in community-based service that provide a direct and demonstrable benefit that is
valued by the community. Service activities must result in a specific documented service or
improvement that otherwise would not be provided with existing funds or volunteers and that
does not duplicate the routine functions of workers or displaced paid employees,
2. AFFILIATION WITH THE AMERICORPS NATIONAL SERVICE NETWORK.
a. Identification as an AmeriCorps Program or Member. The Grantee must identifY
the Program as an AmeriCorps Program and members eligible for a Corporation-
approved post-service education award as AmeriCorps members.
b. The AmeriCorps Name and Logo. AmeriCorps is a registered service mark of the
Corporation for National and Community Service, The Grantee must use the AmeriCorps
name and logo on service gear and public materials such as stationery, application forms,
recruitment brochures, orientation materials, member curriculum, signs, banners, press
releases and publications created by AmeriCorps members in accordance with
Corporation requirements. The Corporation provides a camera-ready logo.
To establish the relationship between the Program and AmeriCorps, the Grantee must use
the phrase "The AmeriCorps National Service Network" or "an AmeriCorps Program"
and may use the slogan "Getting Things Done"TM on such materials in accordance with
Corporation guidelines and requirements, The Grantee may not alter the AmeriCorps
logo, and must obtain the written permission of the Corporation before:
i. Using the AmeriCorps name or logo on materials that will be sold, or
ii. Permitting donors to use the AmeriCorps name or logo in promotional
materials.
The grantee may not use or display the AmeriCorps name or logo in connection with any
activity prohibited in these grant provisions,
c. AmeriCorps Service Gear. The Grantee is encouraged to provide the Core
AmeriCorps Service Gear Package for each member. The core package includes the
standard items made available by the Corporation. The Grantee should direct members to
wear their service gear at officially designated AmeriCorps events and may allow
members to wear their service gear at other times consistent with Corporation guidelines.
The Grantee may not use Corporation funds to purchase local Program service gear.
d. Participation in AmeriCorps Events. The Grantee agrees, within reasonable limits,
to arrange for members to participate in AmeriCorps events and activities sponsored by
Final February :2004
8
ATTACHMENT III
the Corporation, such as the National Opening Ceremonies, conferences and national
service days.
3. LOCAL AND STATE CONSULTATION.
a. Community Consultation. The Grantee must design, implement and evaluate the
funded project with extensive and broad-based community involvement, including
consultation with representatives from the community served, members and potential
members, community-based organizations (faith-based and secular) with a demonstrated
record in providing services. foundations and businesses,
b. Labor Union Concurrence. Prior to the placement of members, the Grantee must
consult with local labor organizations representing employees of project sponsors or
representing employees in the area to be served by the Program. This includes people
engaged in the same or similar work as that proposed to be carried out by the Program,
and is required to ensure compliance with the non-displacement requirements contained
in these Grant Provisions.
c. State Commission Consultation. In coordination with the Corporation,
AmeriCorps*National and AmeriCorps*Tribes and Territories Grantees are strongly
encouraged to consult on a regular basis with the State Commission in each state that a
Program operates. Such communications build upon existing programs throughout the
state while avoiding the duplication of efforts in other AmeriCorps Programs,
4. PROHIBITED PROGRAM ACTIVITIES.
The Corporation acknowledges that religious and political activities playa positive role in
healthy communities, that religion and politics are defining characteristics of many community
organizations (faith-based and secular), and that religious and political belief and action are
central to many AmeriCorps members lives.
However, it is important that AmeriCorps programs and their members do not appear to be
taking sides religiously or politically. Consequently, we must impose a number oflimitations on
activities that AmeriCorps programs can support in which members can engage while earning
service hours, or when otherwise, representing AmeriCorps. AmeriCorps members are free to
pursue these activities on their own initiative, on non-AmeriCorps time, and using non-
AmeriCorps funds. The AmeriCorps logo should not be worn while doing so.
While charging time to the AmeriCorps Program, accumulating service or training hours, or
otherwise performing activities supported by the AmeriCorps program or the Corporation, staff
and members may not engage in the following activities, and the grantee may not use grant funds
to support the following activities:
a. Attempting to influence legislation.
b. Organizing or engaging in protests, petitions, boycotts, or strikes.
Final- February 2004
9
ATTACHMENT III
c. Assisting, promoting or deterring union organizing.
d. Impairing existing contracts for services or collective bargaining agreements.
e. Engaging in partisan political activities or other activities designed to influence the
outcome of an election to any public office.
f. Participating in, or endorsing, events or activities that are likely to include advocacy for
or against political parties, political platforms, political candidates, proposed legislation,
or elected officials,
g. Engaging in religious instruction; conducting worship services; providing instruction
as part of a Program that includes mandatory religious instruction or worship;
constructing or operating faci lities devoted to religious instruction or worship;
maintaining facilities primarily or inherently devoted to religious instruction or worship;
or engaging in any form of religious proselytization.
h. Providing a direct benefit to:
i. A for-profit entity;
ii. A labor union;
iii. A partisan political organization;
iv. An organization engaged in the religious activities described in the
preceding subclause, unless Grant funds are not used to support the
religious activities; or
v. A nonprofit entity that fails to comply with the restrictions contained in
section SOl (c) (3) ofD.S. Code Title 26.
i. Voter registration drives by AmeriCorps members is an unacceptable service activity,
In addition, Corporation funds may not be used to conduct a voter registration drive,
j. Other activities as the Corporation determines will be prohibited, upon notice to the
Grantee,
Individuals may exercise their rights as private citizens and may participate in the above
activities on their initiative, on non-AmeriCorps time, and using non-Corporation funds. The
AmeriCorps logo should not be worn while doing so.
5. FUND RAISING.
a. Approved Member Activities, Members may raise funds directly in support of
service activities that meet local, environmental, educational, public safety, homeland
security or other human needs. Examples of fundraising activities members may perform
include, but are not limited to the following:
i. Seeking donations of books from companies and individuals for a program
in which volunteers tutor children to read,
Final- February 2004
10
ATTACHMENT III
ii. Writing a grant proposal to a foundation to secure resources to support the
training of volunteers.
iii. Securing supplies and equipment from the community to enable
volunteers to help build houses for low-income individuals,
iv. Securing financial resources from the community to assist a faith-based or
community-based organization in launching or expanding a program that
provides social services to the members of the community and is
delivered, in whole or in part, through the members of the faith-based
organization.
v. Seeking a donation from alumni of the program for specific service
projects being performed by current members.
b. Prohibited Member Activities. A member's service activities may not include the
following:
i.
ii.
Hi.
Raising funds for his or her living allowance,
Raising funds for an organization's operating expenses or endowment.
Writing grant applications for AmeriCorps funding or for any other
funding provided by the Corporation for National and Community
Service.
Writing grant applications for funding provided by any other federal
agencies.
iv.
C. Staff. An AmeriCorps staff member's time and related expenses may not be charged to
the Corporation or Grantee share of the Grant while engaged in organized fund raising,
including financial campaigns, endowment drives, the general solicitation of gifts and
bequests. door-to-door solicitations, direct mail, or similar activities for which the sole
purpose is raising capital or obtaining contributions for the organization. Expenses
incurred to raise funds may be paid out of the funds raised. Development officers and
fund-raising staff are not allowable expenses,
Staff time and effort spent on raising the match requirements should be incidental to the
overall management ofthe Program, and should be focused primarily on developing and
disseminating information to potential funders on the AmeriCorps Program and its
achievements. Staff can make presentations and educate funders on objectives, goals and
accomplishments, Efforts to involve the community in support of the AmeriCorps
program, such as obtaining medical contributions or assistance at a health fair; donations
of building supplies for an AmeriCorps construction project; and coordinating
community participation in and support of a serve-a-thon and service activities are also
allowable.
6. ELIGIBILITY, RECRUITMENT, AND SELECTION.
a. Eligibility to Enroll. The Grantee may select as AmeriCorps members only those
individuals who are eligible to enroll in AmeriCorps.ln order to be eligible, an individual
must meet the statutory requirements of the definition ofa member (see Definitions), The
Final- February 2004
11
A TT ACHIVIENT III
Grantee is responsible for obtaining and maintaining adequate documentation to
demonstrate the eligibility of members,
b. Recruitment:
i. Community Recruitment. The Grantee must seek to recruit Program
members from the community in which the project is conducted, as well
as members of diverse races, ethnicities, genders, ages, socioeconomic
backgrounds, education levels, and mental and physical capabilit~es,
unless and to the extent that the approved Program design requires
emphasizing the recruitment of staff and members who share a specific
characteristic or background. In no case may a Grantee violate the non-
discrimination and non-displacement rules governing member seFection.
II. National Recruitment. To supplement local recruitment efforts, the
Grantee is encouraged to request referrals of eligible individuals ill1rough
the Corporation's national recruitment database and the various State
Commissions' recruitment systems. Grantees may be asked to consider
qualified individuals on the database, but will not be required to select
anyone. Prospective AmeriCorps members may access the national
recruitment database through the Corporation's toll-free number, i -800-
94-ACORPIl-800-942-2677 (voice), or 1-800-833-3722 (TDD), or
through the Corporation's website at www.nationalservice.org.
c. Selection, The Grantee is responsible for establishing the minimum qualifications for
membership in the Program, selecting members who meet those qualificaticns, and
assigning members to projects that are appropriate to their skill levels. The Grantee must
select members in a fair, non-partisan, non-political and non-discriminatory manner,
without regard to the member's need for reasonable accommodation of a disability or
childcare, without displacing paid employees, and in accordance with its approved
application,
d. Reasonable Accommodation, Programs and activities must be accessible tOl persons
with disabilities, and the Grantee must provide reasonable accommodation to the known
mental or physical disabilities of otherwise qualified members, service recipients,
applicants, and program staff. All selections and project assignments must be made
without regard to the need to provide reasonable accommodation.
The vast majority of accommodations are inexpensive. For those cases where reasonable
accommodations are more costly, there is a limited amount of money available through
State Commissions to provide accommodations for service members. The Office of
Disability Employment Policy operates a toll-free, confidential, free reSOlUrce for
employers on reasonable accommodation requirements and options for accommodating
employees at (800) 526-7234 (voice/TDD), e-mail at J AN@jan,iccli.wvu.eclu, Of' website
at w\vw.ian.wvu.ec\u.
Accommodations that impose an undue financial or administrative burden on the
operation of the program or fundamentally alter its nature are not re;asonable
Final - February 2004
]2
ATTACHMENT III
accommodations, However, the Grantee must document and prove any undue burden,
Similarly, a person who poses a direct threat to the health or safety to himself or herself
or to others, where the threat cannot be eliminated by reasonable accommodation, is not a
qualified individual with a disability. In such instances the Grantee must document and
prove the direct threat.
e. Level of Participation. The Grantee must seek to enroll the number of full-time and
less than full-time members agreed upon in its approved application, A Program should
make every effort to enroll members so that each member has a reasonable expectation of
completing his/her term of service by the end of the Program's project period, Should a
Program not be renewed, a member who was scheduled to continue in a term of service
either may be placed in another Program where feasible, or a member can receive a
prorated education award if the member has completed at least 15% of the service hour
requirement.
f. Mem ber Classification. AmeriCorps members are not employees of the Program or of
the federal government. The definition of "participant" in the National and Community
Service Act of 1990 as amended applies to AmeriCorps members. As such, "a participant
(member) shall not be considered to be an employee of the Program in which the
participant (member) is enrolled" (42 U .S.c. 12511 (17) (B)). Moreover, members are not
allowed to perform an employee's duties or otherwise displace employees.
For the limited purposes of the Family and Medical Leave Act of 1993, the member may
be considered an eligible employee ofthe project sponsor. The Family and Medical
Leave Act's requirements as they apply to AmeriCorps Programs are contained in 45
C.F.R, 2540.220(b). Generally, this Act will apply only to second term members.
g. Parental Consent. Before enrolling in a Program, individuals under eighteen years of
age must provide written consent from a parent or legal guardian.
h. Criminal Record Checks. Programs with members or employees who have
substantial direct contact with children (as defined by state law) or who perform service
in the homes of children or individuals considered vulnerable by the program, shall, to
the extent permitted by state and local law, conduct criminal record checks on these
members or employees as part of the screening process. This documentation must be
maintained consistent with state law,
i. Criminal Charges. An AmeriCorps member who is officially charged with a violent
felony, or with the sale or distribution of a controlled substance during a term of service
will have his/her service suspended without a living allowance and without receiving
credit for hours missed. The member may be reinstated into AmeriCorps service ifhe/she
is found not guilty or if the charge is dismissed. If an AmeriCorps member who has been
cleared of such charges is unable to complete his/her term of service within one year,
he/she may accept a pro-rated education award as long as he/she has completed at least
15% (255 hours full-timel135 hours less than full-time) of his/her service.
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An AmeriCorps member who is convicted of a criminal charge as described above must
be terminated for cause from the program, and he/she is not eligible for any portion of an
education award.
7. TRAINING, SUPERVISION AND SUPPORT.
a. Planning for the Term of Service. The Grantee must develop member position
descriptions that provide for meaningful service activities and performance criteria that
are appropriate to the skill level of members. The Grantee must ensure that each member
has sufficient opportunity to complete the required number of hours to qualify for a post-
service education award. In planning for the member's term of service, the Grantee mLlst
account for holidays and other time off, and must provide each member with sufficient
opportunity to make up missed hOLlrs.
b. Member Contracts. The Grantee must require that members sign contracts that, at a
minimum, stipulate the following:
i. The minimum number of service hours and other requirements (as
developed by the Program) necessary to successfully complete the term of
service and to be eligible for the education award;
ii. Acceptable conduct;
iii. Prohibited activities, including those specified in these grant provisions;
iv. Requirements under the Drug-Free Workplace Act (41 US.C. 701 et seq.);
v. Suspension and termination rules;
vi. The specific circumstances under which a member may be released for
cause;
vii. The position description;
viii. Grievance procedures; and
ix. Other requirements as established by the Program,
c. Training. Consistent with the approved budget, the Grantee must provide members
with the training, skills, knowledge and supervision necessary to perform the tasks
required in their assigned project positions, including specific training in a particular field
and background information on the community served,
The Grantee must conduct an orientation for members and comply with any pre-service
orientation or training required by the Corporation. This orientation should be designed to
enhance member security and sensitivity to the community. Orientation should cover
member rights and responsibilities, including the Program's code of conduct, prohibited
activities (including those specified in these grant provisions), requirements under the
Drug-Free Workplace Act (41 US.C. 701 et seq.), suspension and termination from
service, grievance procedures, sexual harassment, other non-discrimination issues, and
other topics as necessary.
Final- February 2004
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ATTACHMENT III
d. Service-Learning. The Grantee agrees to use service experiences to help members
achieve the skills and education needed for productive, active citizenship, including the
provision, if appropriate, of structured opportunities for members to reflect on their
. .
servIce experIences,
e. Limit on Education and Training Activities. No more than 20% of the aggregate of
all AmeriCorps member service hours in a Program may be spent in education and
training activities.
f. Supervision. The Grantee must provide members with adequate supervision by
qualified supervisors in accordance with the approved application. The Grantee must
establish and enforce a code of conduct for members,
g. Performance Reviews. The Grantee must conduct and keep a record of at least a
midterm and end-of-term written evaluation of each member's performance, focusing on
such factors as:
i. Whether the member has completed the required number of hours;
ii. Whether the member has satisfactorily completed assignments; and
III. Whether the member has met other performance criteria that were clearly
communicated at the beginning of the term of service,
h. Support Services. The Grantee must provide specific support services to members
who are school dropouts by assisting them in earning the equivalent of a high school
diploma; and to members who are completing a term of service and are making the
transition to other education and career opportunities.
i. Registration to Vote. The Grantee should encourage all eligible members to register
and vote. However, the Grantee is prohibited from requiring members to register or to
vote, and from attempting to influence how members vote. Members who are unable to
vote before or after service hours should be allowed to do so during their service time
without incurring any penalties. The site director should determine the length of absence.
j. Jury Duty. The Grantee must allow AmeriCorps members to serve on a jury without
being penalized for doing so. During the time AmeriCorps members serve as jurors, they
should continue to receive credit for their normal service hours, a living allowance, health
care coverage and, if applicable, child care coverage regardless of any reimbursements
for incidental expenses received from the court.
k. Member Injury. The Grantee must report any serious injuries to the appropriate
Corporation Program Officer immediately.
I. Armed Forces Reserves. Generally, the Reserves of the U.S. Army, U,S. Navy, U,S,
Air Force, U.S. Marine Corps, U.S. Coast Guard, the Army National Guard and the Air
National Guard require reservists to serve one weekend a month plus 12 to 15 days a year
(hereafter referred to as the two-week active duty service). To the extent possible,
grantees should seek to minimize the disruption in members' AmeriCorps service as a
Final- February 2004
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A TT ACHMENT III
result of discharging responsibilities related to their reservist duties. If members have a
choice of when to fulfill their annual two-week active duty requirement, they should do
so when it will not disrupt their AmeriCorps service. In instances where the dates of
active duty are inflexible and conflict with AmeriCorps service, members should be
granted a leave of absence for the two-week period of active duty service in the Reserves.
Members may not receive time-off for additional Reserves-related service beyond the
two-week active duty service. No AmeriCorps service credit is earned for the once-a-
month weekend service in the Reserves. Grantees should credit members for AmeriCorps
service hours during their two weeks of active duty service in the Reserves if it occurs
during their AmeriCorps service, The member would receive credit for the number of
hours he or she would have served during that period had there been no interruption, For
example, if a full-time member is signed up to serve 30 hours of AmeriCorps service one
week and 40 hours of AmeriCorps service on the following week, she or he would
receive 70 hours of AmeriCorps service credit for the two weeks of active duty service
regardless ofthe actual number of hours served in the Reserves,
Reservists in the U.S. Armed Forces receive compensation for their mandatory two
weeks of active duty service. The compensation regulations governing the Army and Air
National Guard may vary by state.
Grantees should continue to pay the living allowance and provide health care and
childcare coverage for the two-week period of active duty.
8. TERMS OF SERVICE.
a. Program Requirements. Each Program must, at the start of the term of service,
establish the guidelines and definitions for the successful completion of the Program
year. ensuring that these Program requirements meet the Corporation's service hour
requirements as defined below:
i. Full-Time Members. Members must serve at least 1700 hours during a
period of not less than nine months and not more than one year,
ii. Half- Time Mem bers. Half-time members must serve at least 900 hours
during a period of one or two years as indicated in the approved budget,
Hi. Reduced Half-Time Members. Reduced half-time members must serve
at least 675 hours over a time not to exceed one year.
iv. Quarter-Time Members. Quarter-time members must serve at least 450
hours over a time not to exceed one year.
v. Minimum Time Members. Minimum time members must serve at least
300 hours over a time not to exceed one year.
b. Service in a Second or Subsequent Term.
i. General. A grantee is under no obligation to enroll a member for a second
or subsequent term of service. In addition, there may be limitations on an
individual's eligibility for federally-funded member benefits for any term
beyond a second term.
F inal- February 2004
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ATTACHMENT III
II. Satisfactory Performance Review, To be eligible to serve a second or
subsequent term of service, a member must receive a satisfactory
performance rev iew for any prior term of serv ice.
iii. No Automatic Disqualification if Released for Cause. A release for
cause covers all circumstances in which a member does not successfully
complete term of service for reasons other than compelling personal
circumstances. Therefore, it is possible for a member to receive a
satisfactory performance review and be released for cause. For example, a
member who is released for cause for a first term for personal reasons -
e.g. he has decided to take a job offer- but who, otherwise, was
performing well up until the time he decided to leave would not be
disqualified for a second term as long as he received a satisfactory
performance evaluation for the period he served.
iv. Required Disclosure by Member of Prior Release for Cause. Any
individual released for cause who thereafter applies to serve in any
AmeriCorps program must disclose the fact that he or she was released for
cause to the Program to which the individual is applying. Failure to
disclose that the individual was released for cause from another
AmeriCorps Program will make the individual ineligible to receive the
AmeriCorps education award,
c. Notice to the Corporation's National Service Trust. The Grantee must notify the
Corporation's National Service Trust within 30 days upon entering into a commitment
with an individual to serve, a member's enrollment in, completion of, lengthy or
indefinite suspension from, or release from, a term of service. Lengthy or indefinite
suspension of service is defined as any extended period during which the member is not
serving service hours or receiving AmeriCorps benefits because it is unclear when the
member might return to the Program. The Grantee also must notify the Trust when a
change in a member's status is approved and changed (i.e. from full-time to less than full-
time or vice versa), Failure to report such changes within 30 days may result in sanctions
to the Grantee up to and including suspension or termination. Grantees or sub-Grantees
properly utilizing WBRS meet notification requirements when they use that system to
inform the Corporation within the approved time frames. Any questions regarding the
Trust may be directed to (202) 606-5000 ext. 347.
d. Member Enrollment Procedures.
i.
An individual is enrolled as anAmeriCorps member when all of the
following have occurred:
1. He or she has signed a member contract;
2 The program has verified the individual's eligibility to serve;
3, The individual has begun a term of service; and
4. The program has approved the member enrollment form in WBRS.
Prior to enrolling a member in AmeriCorps, programs make commitments
to individuals to serve. A commitment is defined as signing a member
ii.
Final- February 2004
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ATTACHMENT 11/
contract with an individual or otherwise entering into a legally enforceable
commitment as determined by state law.
iii. Member Commitment: Within 30 calendar days of entering into a
commitment with an individual, the grantee or sub-Grantee will notifY the
Corporation ofthe commitment via WBRS,
iv. Member Enrollment: Within 30 calendar days of the member's starting
service, the program must complete and approve the enrollment form in
WBRS.
v. If a commitment does not result in a member actually being enrolled, the
program must cancel the commitment in WBRS within 30 calendar days
of the member's expected start date, If a grantee or sub-Grantee does not
complete an enrollment within 30 days of the member's expected start
date, the grantee and sub-Grantee will receive notification that the
timeframe has expired. The program will then have 15 calendar days to
complete the enrollment before the commitment is removed from WBRS.
vi. Failure to notifY the Corporation of member commitments or enrollments
within these timeframes may result in sanctions to the grantee or sub-
Grantee, up to and including reducing the number of member positions or
suspending or terminating the grant.
e. Notice to Childcare and Health Care Providers. The Grantee must notifY the
Corporation's designated agents immediately in writing when a member's status changes
such that it would affect eligibility for childcare or health care, Examples of changes in
status are converting a full-time member to less than full-time member, terminating or
releasing members from service, and suspending members for cause for lengthy or
indefinite time periods, Program directors should contact AmeriCorps<IDCare at ] -800-
570-4543 on childcare related changes. and their health insurance provider about health
insurance related changes.
f. Changing Member Status, Circumstances may arise within a program that necessitate
changing the type of unfilled AmeriCorps member positions awarded to a grantee or sub-
grantees, or changing the term of service of a currently enrolled member. Note that once
a member is exited with a partial education award, the remaining portion of that
education award is not available for use.
Any change of member status that:
i. Necessitates a change in the number of full-time equivalent positions in
the grant.
ii. An increase in the number of slots in the grant, or
Hi. A change in the funding amount of the Grant
requires prior written approval from the Corporation's Office of Grants Management
g. Changing Slot Types (unfilled positions). Grantees or sub-grantees may change the
type of slots awarded to their program with prior approval from the Office of Grants
Management if:
Fina\- February 2004
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ATTACHMENT III
I. the change does not increase the total number of slots authorized in the
Notice of Grant Award (e,g., one full-time position may be changed to one
half-time or one quarter-time position) and
ii. the change does not increase the total FTEs authorized in the Notice of
Grant Award (e,g. one half-time position cannot be changed to one full-
time).
To request a change in slot type, the grantee must make a slot correction in WBRS and
forward it to the Corporation for approval.
h. Changing a Term of Service (filled positions). Changes in terms of service .may not
result in an increased number of slots or FTEs for the program.
i. Full-time, State Commissions and Parent Organizations may authorize or
approve occasional changes of currently enrolled full-time members to
less than full-time members within the first 90 days of the member's
service, Impact on program quality should be factored into approval of
requests, The Corporation will not cover health care or childcare costs for
less than full-time members, [t is not allowab[e to transfer currently
enrolled full-time members to a less than full-time status simply to provide
a less than full-time education award. A Change of Status form must be
completed and forwarded to the Corporation within 30 days, This can be
accomplished by completing and approving a Change of Status form in
WBRS.
ii. Less than Full-time. Changing less than full-time members to full-time is
discouraged because it is very difficult to facilitate, unless done very early
in the member's term of service. State Commissions and Parent
Organizations may authorize or approve such changes so long as they are
within the first 90 days of the member's service, and the current budget
can accommodate such changes, Programs must keep in mind that a
member's minimum 1700 hours must be completed within 12 months of
the member's original start date, A Change of Status form must be
completed and forwarded to the Corporation within 30 days. This can be
accomplished by completing and approving a Change of Status form in
WBRS.
State Commissions and Parent Organizations must forward all changes and
appropriate forms to the Corporation after approval. Any requests for changes that
fall outside of the parameters set forth above must come to the Corporation for
written approval with concurrence from the State Commission or Parent
Organization.
9. RELEASE FROM PARTICIPATION.
Grantees may release members from participation for two reasons: (a) for compelling personal
circumstances; and (b) for cause in accordance with 45 C.F.R. 2522.230.
Final- February 2004
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ATTACHMENT III
a. Compelling Circumstances. The Grantee is responsible for determining whether a
member's personal circumstances are sufficiently compelling to justifY release on this
basis. If a Grantee releases a member for compelling personal circumstances, the Grantee
may elect either to authorize a pro-rated education award or temporarily to suspend
service for up to two years, If a term of service is temporarily suspended, the member
will not accrue service hours or receive benefits during this time period. In order to be
eligible for a pro-rated education award, a member must have served a minimum of 15%
of his or her term of service, If a Grantee releases a member on the grounds that an
accommodation of a disability would impose an undue burden, the Grantee must
document its determination and notify the Corporation, Such circumstances are to be
considered "compelling" for purposes of this sub-clause. The Corporation for National
and Community Service allows each program to decide on a case-by-case basis whether
the situation warrants a member receiving a partial award. However, the Corporation's
policy is that generally the compelling circumstance must be beyond the member's
control.
Compelling personal circumstances include those that are beyond the member's control,
such as, but not limited to:
i. A member's disability or serious illness;
ii. Disability, serious illness or death of a member's family member if this makes
completing a term unreasonably difficult or impossible; or
iii. Conditions attributable to the program or otherwise unforeseeable and beyond
the member's control, such as a natural disaster, a strike, relocation ofa
spouse, or the non renewal or premature closing of a project or program, that
make completing a term unreasonably difficult or impossible.
Compelling personal circumstances also include those that the Corporation has, for public
policy reasons, determined as such, including:
i. Military service obligations;
ii. Acceptance by a member of an opportunity to make the transition from
welfare to work; or
iii. Acceptance of an employment opportunity by a member serving in a program
that includes in its approved objectives the promotion of employment among
its members,
I fa mem ber leaves AmeriCorps service for any of the reasons noted above and the
Grantee or sub-Grantee determines that the member has served at least 15% of his or her
service (or 255 hours for full-time service), the member is eligible for a portion ofthe
education award corresponding to the period served.
Compelling personal circumstances do not include leaving a program:
i. To enroll in school;
ii. To obtain employment, other than in moving from a welfare to work or in
leaving a program that includes in its approved objectives the promotion of
employment among its members; or
iii. Because of dissatisfaction with the program.
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A TT ACHMENT III
If the member resigns for any of these reasons or other reasons that are within his or her
control, the individual should receive no portion of the AmeriCorps education award. The
member has the primary responsibility for demonstrating that compelling personal
circumstances prevent the member from completing the term of service. Grantees must
make these determinations based on these criteria and indicate the reasons for early
termination on the End of Term of Service forms.
b. For Cause. A release for cause encompasses any circumstances other than compelling
personal circumstances that warrant a member's release from completing a term of
service, The Grantee may release a member for cause according to the conditions of the
Corporation and the member's contract. A Grantee must release a member for cause if the
member is convicted of a violent felony or the sale or distribution of a controlled
substance during a term of service. If the member is charged with a violent felony or the
sale or distribution of a controlled substance, or convicted of the possession of a
controlled substance, the Grantee must suspend the member without any AmeriCorps
benefits, including living allowance, and without receiving credit for hours missed,
Any member who drops out of a Program without obtaining a release for compelling
personal circumstances is considered to have been released for cause, A member released
for cause may not receive any portion of an education award. A member wrongly
released or suspended for cause will receive credit for any service missed and
reimbursement for missed living allowances as specified in 45 C.F.R. 2522.230.
Members are not eligible to receive any benefits or service hour credit upon release from
service for cause.
c. Resumption of Service. Any member whose service was suspended because of being
charged with a violent felony or sale or distribution of a controlled substance may be
reinstated to service if the member is found not guilty or if the charge is dismissed. Any
member whose service was suspended because of being convicted of a first offense of
possession of a controlled substance may resume service by demonstrating that the
member has enrolled in an approved drug rehabilitation Program. A member convicted of
a second or third offense of possession of a controlled substance may resume service by
demon strati ng successful completion of a rehabi I itation program,
10. MINOR DISCIPLINARY ACTIONS.
The Grantee may temporarily suspend or impose a fine on a member for minor disciplinary
reasons, such as chronic tardiness, as outlined in the conditions of the member contract.
a. Temporary Suspension of Service. The period of suspension does not count toward a
member's required service hours. Further, members who are suspended for minor
disciplinary reasons may not receive a living allowance for the suspension period,
b. Fines. If determined to be necessary for improvements in member performance or
attendance, the Grantee may impose a reasonable fine on members for minor disciplinary
Final- February 2004
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ATTACHMENT III
problems consistent with the member contract. The fines may not be calculated on an
hourly basis. For example, a member who is an hour late may not be fined an hour's
worth of living allowance. Instead, the Grantee shall establish a written policy on fines,
which is not linked to an hourly rate, The Grantee may deduct fines from that portion of
the member's living allowance that is paid by non-Federal funds. Before making any
deductions, the Grantee should consider how th is might affect the status of mem bers
under employment laws, including minimum wage and unemployment compensation.
Further. a Grantee that deducts in this fashion may be required to provide additional
mutching runds.
11. LIVING ALLOWANCES, OTHER IN-SERVICE BENEFITS AND TAXES.
The living allowance match must come from non-federal sources; unless an exception for lack of
available financial resources at the local level under 42 U.S,c, 12594 (g) is specifically approved
in the Special Conditions of the Award document. Programs that want to provide a living
allowance in excess of the minimum amount stated in the Application Guidelines must provide a
Grantee match for all funds over 85% of that minimum.
a. Living Allowances. Unless otherwise agreed upon, a Grantee must provide a living
allowance to full-time members in accord with the following:
i. Full-Time Requirements. Please refer to the Application Guidel ines for
current year amounts. The living allowance is based on the total average
annual amount provided to VISTA volunteers. The Corporation will only
fund up to 85% of the minimum living aIJowance, A minimum of 15%
must be matched by non-federal sources. A program that wants to provide
a living allowance in excess of the stated minimum must provide a
Grantee match for all funds over 85% of that stated amount. If the
program is permitted to provide a living allowance that is less than the
stated minimum, the Corporation will only fund 85% of the actual amount.
ii. Less than full-time Requirements. Programs are not required to pay less
than full-time members living allowances. If a Program chooses to pay
less than full-time members, it should prorate the full-time living
allowance based on the less than full-time member's service. The
Corporation will fund up to 85% of the prorated living allowance.
iii. Other Requirements. Programs may not provide a living allowance
benefit above the maximum amount stated in the Application Guidelines
for full-time members unless permitted under 42 U,S.c' l2594(c), or pro-
rated based on number of hours for less than full-time, Programs in
existence prior to September 21, 1993 may offer a lower living allowance
than the stated minimum; however, Corporation funds will only support
85% of the actual amount.
b. Living Allowance Distribution. The living allowance is designed to help members
meet the necessary living expenses incurred while participating in the AmeriCorps
Program, Programs must not pay a living allowance on an hourly basis. It is not a wage
and should not fluctuate based on the number of hours members serve in a given time
Final - February 2004
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ATTACHMENT III
period. Programs should pay the living allowance in increments, such as weekly or bi-
weekly. Programs may use their organization's payroll system to process members'
living allowances, However, if a payroll system cannot be altered and must show 40
hours in order to distribute a living allowance, then members' service hours should be
documented separately to keep track of their progress towards the Program's total
required AmeriCorps service hours.
c. Waiving the Living Allowance. A member may waive all or part of the payment of a
living allowance if he or she believes his or her public assistance may be lost because of
the living allowance, with the following caveats:
i. Even if a member waives his or her right to receive the living allowance, it
is possible-depending on the specific public assistance program rules-
that the amount of the living allowance that the member is eligible to
receive will be deemed available;
ii. Members may revoke the waiver at any time during the course of the
program;
iii. If a member revokes the waiver, he or she may begin receiving the living
allowance only from the date on which the waiver was revoked; the
member may not receive any portion of the living allowance that accrued
during the waiver period.
d. Taxes and Insurance.
i. Liability Insurance. The Grantee must have adequate general liability
coverage for the organization, employees and members, including
coverage of members engaged in on- and off-site project activities.
ii. FICA (Social Security and Medicare taxes). Unless the Grantee obtains
a ruling from the Social Security Administration or the Internal Revenue
Service that specifically exempts its AmeriCorps members from FICA
requirements, the Grantee must pay FICA for any member receiving a
living allowance, The Grantee also must withhold 7,65% from the
member's living allowance.
III. Income Taxes. The Grantee must withhold Federal personal income taxes
from member living allowances, requiring each member to complete a W-
4 form at the beginning of the term of service and providing a W-2 form at
the close of the tax year. The Grantee must comply with any applicable
state or local tax requirements.
iv. Unemployment Insurance. The U.S. Department of Labor ruled on April
20, 1995 that federal unemployment compensation law does not require
coverage for members because no employer-employee relationship exists.
The Grantee cannot charge the cost of unemployment insurance taxes to
the Grant unless mandated by state law. Programs are responsible for
determining the requirements of state law by consulting their State
Commission, legal counselor the applicable state agency,
AmeriCorps*National and AmeriCorps*Tribes and Territories Grantees
must coordinate with' their State Commissions to determine a consistent
state treatment of unemployment insurance requirements.
Final - February 2004
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ATTACHMENT III
v. Worker's Compensation. Worker's Compensation is an allowable cost to
the Grant The Grantee is responsible for determining whether state law
requires the provision of worker's compensation for members. If a
program is not required by state law to provide worker's compensation,
the Program must obtain Occupational Accidental Death and
Dismemberment insurance coverage for members to cover in-service
injury or incidents,
e. Health Care Coverage. The Grantee must provide a health care policy to those full-
time members not otherwise covered by a health care policy at the time of enrollment
into the AmeriCorps program, or to those members who lose coverage during their term
of service as a result of participating in the Program or through no deliberate act of their
own. The Corporation will not cover health care costs for family members or for less than
full-time members,
i. Minimum Benefits. The health care policy must meet the following minimum
benefits:
· Physician services for illness or injury;
· Hospital room and board;
· Emergency room;
· X-ray and laboratory;
· Prescription drugs;
· Limited mental/nervous disorders;
· Limited substance abuse coverage;
· An annual deductible of no more than $250 charges per member;
· No more than $1,000 total annual out-of-pocket per member;
· A 20% co-payor a comparable fixed fee with the exception of a 50% co-
pay for mental and substance abuse care; and
· A maximum benefit of$50,000.
ii. Obtaining Health Care Coverage. You may obtain health care insurance for
your members through any provider you choose, as long as the policy provides
the minimum benefits and is not excessive in cost If you use a health care policy
that charges more than $150 per month to the Corporation you must send a copy
of the policy along with a summary of its coverage and costs to the Corporation's
Office of Grants Management.
iii. Half-Time Members, Although no portion of health insurance expenses for
halftime members may be paid from Corporation funds, you may choose to
provide health care to half-time members from other sources.
iv. Half-Time Members serving in a Full-Time Capacity, Half-time members
who are serving in a full-time capacity for a sustained period of time (such as a
full-time summer project) may be eligible for health care benefits supported with
Corporation funds, although that coverage must be approved in the Grant
f. Childcare. The Grantee must ensure that childcare is made available to those full-time
members who need such assistance in order to participate. Members are not eligible to
receive childcare from AmeriCorps while they are receiving childcare subsidies from
another source for the same period of AmeriCorps Service.
Final- February 2004
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vi.
Final- February 2004
ATTACHMENT "'
i.
Member Eligibility. A member is considered to need childcare in order to
participate in the Program if:
(a) He or she is the parent or legal guardian (or acting in loco parentis) for
a child under the age of 13 who resides with the member;
(b) He or she has a family income that does not exceed the state's income
eligibility guidelines for a family of the same size. At a maximum, family
income can be no more than 75% of the state's median income; and
(c) At the time of acceptance into the Program, he or she is not receiving
childcare from another available source that would continue to be
provided while the member serves in the program,
Qualified Providers. To be eligible for payment with AmeriCorps funds,
a childcare provider must qualify under the Child Care and Development
Block Grant Act of 1990 (42 U's,c. 9858c (4) (A)). Each state has its own
criteria, Payments will not be made to ineligible providers.
Administration of Child Care Payments. In general, the Corporation
will provide for childcare payments, which will be administered through
the National Association of Child Care Resource and Referral Agencies
(NACCRRA), hereafter referred to as AmeriCorps@CARE. Grantees that
choose to provide childcare as a match source (as approved in their
budget) may use AmeriCorps@CARE for technical assistance. Grantees
can contact AmeriCorps@CARE at 1-800-570-4543 with questions
regarding childcare.
Program Director's Responsibilities. In addition to determining a
member's eligibility at the start of the term of service, Program directors
are required to notify AmeriCorps@CARE immediately in writing when:
(a) A member is no longer eligible for childcare benefits due to a change
in the member's eligibility status (e,g., family income exceeds the limit,
the child turns 13, a full-time member becomes a less than full-time
member, or a member leaves the Program);
(b) New or existing members become eligible for childcare benefits;
(c) A member wishes to change childcare providers or a childcare provider
will no longer provide childcare services; or
(d) A member is absent from the Program for excessive periods of time
(five or more days in a month),
Costs incurred due to the Grantee's failure to keep AmeriCorps@CARE
immediately informed of changes in a member's status may be charged to
the Grantee's organization.
Half-Time Members. Although no portion of child care expenses for half-
time members may be paid from Corporation funds, Programs may choose
to provide childcare to half-time members from other sources.
Half-Time Members Serving in a Full-Time Capacity. Half-time
members who are serving in a full-time capacity for a sustained period of
time (such as a full-time summer project) may be eligible for childcare
benefits supported with Corporation funds, although that coverage must be
approved in the Grant or via prior written approval from the Corporation's
Office of Grants Management
ii.
iii.
iv.
v.
25
A TT ACHMENT 11/
vii. Payments, Payments or reimbursement for childcare benefits will be
made for eligible members to qualified providers from the date child care
need was established after service began. No payments and
reimbursements will be made in the event the AmeriCorps member was
ineligible. or if the provider was not qualified under the state guidelines,
g. Family and Medical Leave. AmeriCorps members who have served for at least 12
months and 1250 hours can take family and medical leave in accordance with the Family
and Medical Leave Act of 1993 (FMLA), provided the sponsoring institution, if non-
federal, employs staff of more than 50 people. (See the Corporation's Regulations at 45
CF.R. 2540.220) Under FMLA, members may take up to 12 weeks of unpaid leave
during a 12 month period for the following reasons:
i. The birth of a child.
ii. The placement of a child with an AmeriCorps member through adoption
or fostercare.
iii. Serious illness of an AmeriCorps member's spouse, child or parent.
iv. Serious illness prevents the AmeriCorps member from performing his or
her essential service duties, According to Corporation regulations, a
serious health condition is an illness requiring in-patient care or continuing
treatment by a health care provider.
The grantee also may allow a member to take intermittent leave or reduce his or her
service hours for any of the reasons mentioned above,
Grantees must continue to provide health care coverage to members on family and
medical leave. If at the end of the leave, a member decides not to rejoin the program,
FMLA allows grantees to recover their health premium payments, unless the reason for
not returning is the continuation of the serious health condition or other circumstances
beyond the member's control. However, given the small amounts involved (in most cases
less than $300 per AmeriCorps member), Grantees may elect not to adopt this recovery
policy.
Family and medical leave does not count toward the requisite service hours and members
may not receive a living allowance during this period.
In the Grantee's discretion, temporary leave may also be authorized for the reasons
allowed under FMLA to AmeriCorps members who do not otherwise meet the eligibility
requirements for FMLA leave as described above, If temporary leave is appropriate,
grantees have the flexibility to determine the duration of the absence for up to 12 weeks.
The length of the leave must be based on two considerations: (1) the circumstances of the
situation; and (2) the impact of the absence on the member's service experience and on
the overall program, If the disruption would seriously compromise the member's service
experience or the quality of the program as a whole, then the grantee may offer the
member the option of rejoining the program in the next class or completely withdrawing
from the program.
Final February 2004
26
ATTACHMENT III
h. Federal Work Study. Upon approval by the Corporation's Program Office, grantees
may enroll Federal Work Study students as AmeriCorps members. Only individuals who
enroll in an AmeriCorps position in a program that has been approved by the Corporation
are eligible to receive AmeriCorps member benefits. Except as required by Federal Work
Study regulations, AmeriCorps members may not be paid on an hourly basis. The
Corporation for National and Community Service does not consider a wage under the
Federal Work Study program to be a living allowance for purposes of the National and
Community Service Act. The grantee is not required to report such wages in the
AmeriCorps grant. If you have members to whom you pay a living allowance for any
service beyond the hours worked under the Federal Work Study Program, then at least
15% of the amount of the living allowance must be provided from non-Federal sources,
12. POST-SERVICE EDUCATION A WARDS.
rn order for a member to receive a post-service education award from the National Service Trust,
the Grantee must certify to the National Service Trust that the member is eligible to receive the
education benefit. The Grantee must notify the National Service Trust on a form provided by the
Corporation (electronic submission via WBRS suffices) when it enrolls a member for a term of
service, when the member completes the term, and whenever there is a change in the member's
status during the term (e,g" release for compelling circumstances or suspension). A member may
receive a post-service education award only for the first two terms of service. For example, one
full-time and one half-time term of service count as two terms. If a member is released for
reasons other than misconduct prior to completing 15% of a term of service, that term does not
count as one of the two terms for which an education award may be provided. No Corporation or
other federal funds may be used to provide member support costs for a third or subsequent term
of service in an AmeriCorps State or National Program.
In order to receive a full education award, a member must perform the minimum hours of service
as required by the Corporation and successfully complete the program requirements as defined
by the Program, For example. if successful completion of a full-time program requires 1,800
service hours, members in that particular program are not eligible for an education award simply
upon completion of 1,700 hours, rfa member is released from a Program for compelling
personal circumstances, the member is eligible for a pro-rated education award based on the
number of hours served, ifit is at least 15% of the total required hours. Questions regarding
authorized uses ofthe education award should be directed to the Trust at (202) 606-5000 ext.
347,
Education Awards Table
Title
Full-time
One Year Half-time
Two Year Half-time
Reduced Half-time
Quarter-ti me
Minim um - tim e
Number of Hours
At least 1700
At least 900
At least 900
At least 675
At least 450
At least 300
Education Award
$4,725.00
$2,362.50
$2,362.50
$1,800,00
$1,250,00
$1,000.00
Final -- February 2004
27
I
A TT ACHMENT 1/1
13. MATCHING REQUIREMENTS.
a. Matching Obligation. The Grantee must provide and account for the matching funds
as agreed upon in the approved application and budget. All programs are encouraged to
raise some funds from the private sector, i.e, non-federal funds.
The Corporation requires, at a minimum, the following aggregate matches:
i. Member Costs: 15% including Living Allowance, FICA, Unemployment
Insurance, Worker's Compensation and Health Care
ii. Program Operating Costs: 33% including Other Member Costs, Staff,
Operating Costs, Internal Evaluation and Administration For further
requirements, refer to OMB Circular A-I 02 and its implementation
regulation (45 C.F.R. 2543) or A-IIO (45 C.F.R. 2541), as applicable,
b. Cash Match for Member Costs. The Grantee's matching contributions for Member
Costs (excluding health care) must be in non-federal monies. Tribal funds acquired
through P.L. 93-638 are considered non-federal and may be used to match Member
Support Costs. Unless otherwise agreed upon by the Corporation, programs must meet
the grantee share of Member Costs, as indicated in the approved budget, during each
reporting period,
c. Cash or In-Kind Match for Program Operating Costs. Contributions, including
cash and third paJ1y in-kind, will be accepted as part of the Grantee's matching share for
Program Operating Costs (defined as those other than the Member Costs) when such
contributions meet all of the following criteria:
i. They are verifiable from Grantee records,
ii. They are not included as contributions for any other federally-assisted
Program.
iii. They are necessary and reasonable for the proper and efficient
accomplishment of Program objectives.
iv. They are allowable under applicable cost principles.
d. Exception for Donated Professional Service. Because the purpose of this Grant is to
enable and stimulate volunteer community service, the Grantee may not include the value
of direct community service performed by volunteers. However, the Grantee may include
. the value of volunteer services contributed to the organization for organizational
functions such as accounting, audit, training of staff and AmeriCorps Programs,
e. Administrative Costs. Administrative costs cannot exceed 5% of total Corporation
funds actually expended, Administrative costs that exceed the Corporation's maximum
administrative cost limit of 5% but that otherwise would have been allocable to the Grant,
are allowable as the matching share under the Administrative costs budget line item. See
General Provisions, Administrative Costs.
f. Valuation. The value of Grantee and third-party contributions of services and property
will be determined in accordance with applicable cost principles set forth in OMB
Circulars A-21, A-87 and A-I22, and the approved budget.
Final- February 2004
28
A TT ACHMENT III
g. Cost Share. The Corporation encourages private sector support over-and-above the
matching fund requirement. As a general rule, the Corporation will treat cash or in-kind
matching contribution that exceeds the required minimum as cost-share. Grantees must
comply with the requirements ofCFR 2543.23 in documenting cash and in-kind
contributions.
14. MEMBER RECORDS AND CONFIDENTIALITY.
a. Record-Keeping. The Grantee must maintain records specified in (b) below that
document each member's eligibility to serve pursuant to the member eligibility
requirements in the definitions section of these provisions, The records must be sufficient
to establish that the individual was eligible to participate in the program and that the
member successfully completed the program requirements,
b. Verification. To verify U,S. citizenship, U.S, national status or, U.S. lawful permanent
resident alien status, the Grantee must obtain and maintain documentation as required by
45 C.F.R. 2522.200(b) and (c), The Corporation does not require programs to make and
retain copies of the actual documents used to confirm age or citizenship eligibility
requirements, such as a driver's license, or birth certificate, as long as the Grantee has a
consistent practice of identifying the documents that were reviewed and maintaining a
record of the review. To verify whether the member meets the requirements relating to
high-school education, the Grantee must obtain from the member, and maintain in the
member's file, a written declaration under penalty of law that the member meets the
requirements ofthese provisions relating to high school education. If the member has
been determined to be incapable of obtaining a high school diploma or its equivalent, the
Grantee must retain a copy of the supporting independent evaluation
c. Confidential Member Information. The Grantee must maintain the confidentiality of
information regarding individual members, The Grantee must obtain the prior written
consent of all members before using their names, photographs and other identifying
information for publicity, promotional or other purposes, Parental or legal guardian
consent must be obtained for members under 18 years of age, Grantees may include an
informed consent form as part of the member contract materials that are signed at the
time the member enrolls. Grantees may release aggregate and other non-identifying
information, and are required to release member information to the Corporation and its
designated contractors. The Grantee must permit a member who submits a written request
for access to review records that pertain to the member and were created pursuant to this
Grant.
15. BUDGET AND PROGRAMMATIC CHANGES.
a. Programmatic Changes. The State Commission or Parent Organization must obtain
the prior written approval of the AmeriCorps Program Office before making the
following changes in the approved Program:
Final- February 2004
29
ATTACHMENT 11/
i. Changes in the scope, objectives or goals of the Program, whether or not
they involve budgetary changes;
ii. Substantial changes in the level of participant supervision;
iii. Entering into additional sub-Grants or contracts for AmeriCorps activities
funded by the Grant but not identified or included in the approved
application and grant budget.
b. Program Changes for Formula Programs
i. State Commissions are responsible for approving the above changes for
state formula programs,
c. Budgetary Changes. The Grantee must obtain the prior written approval of the
Corporation's Office of Grants Management before deviating from the approved budget
in any of the following ways:
i. Reallocation of Funds from the "Member Support Cost" category to
other categories ofthe approved budget. However, the Grantee may
reallocate funds within the line items in this category, except for increases
in health care cost per member, which must be approved, The specific line
items covered by this subclause are:
a, Living allowance,
b, FICA, worker's compensation, and unemployment insurance and
c, Health care (or alternative health care),
ii. Specific Costs Requiring Prior Approval before Incurrence under
OMB Circulars A-21, A-87 or A-122. For certain cost items, the cost
circulars require approval of the awarding agency for the cost to be
allowable, Examples of these costs are overtime pay, rearrangement and
alteration costs, and pre-award costs.
iii. Purchases of Equipment over $5,000 using Grant funds, unless specified
in the approved application and budget.
iv. Unless the Corporation share of the award is $100,000 or less, changes
to cumulative budget line items that amount to 10 per cent or more of the
total program budget must be approved in writing in advance by the
Corporation, The total program budget includes both the Corporation and
Grantee shares. Grantees may transfer funds among approved direct cost
categories when the cumulative amount of such transfers does not exceed
10 per cent of the total program budget.
d. Approvals of Programmatic and Budget Changes. The Corporation's Grants
Officers are the only officials who have the authority to change the requirements of the
Grant. The Grants Officers will execute written amendments, and Grantees should not
assume approvals have been granted unless documentation from the Grants Office has
been received.
Final- February 2004
30
ATTACHMENT III
16. REPORTING REQUIREMENTS.
a. Financial Status and Progress Reports. Progress and Financial Status reporting
requirements in these Provisions apply only to the Grantee. Grantees are required to
review, analyze, and follow up on progress and financial status reports they receive
from AmeriCorps subgrantees or operating sites, Each Grantee must submit Progress
and Financial Status Reports by the required due dates,
Requests for extensions of reporting deadlines will be granted when I) the report
cannot be furnished in a timely manner for reasons legitimately beyond the control of
the grantee and 2) the Corporation receives a request explaining the need for an
extension before the due date of the report.
Fx(ensinns nt- deadlines for FSRs (SF 269a) may only be granted by the Office of
Grants Management, and extensions of deadlines for Progress Reports may only be
granted by the AmeriCorps Program Office.
i. Financial Status Reports. The grantee shall submit semi-annual
cumulative financial status reports summarizing expenditures during the
reporting period using eGrants (Financial Status Reports menu tree).
Financial Status
Report deadlines are:
Due Date
April 30
October 30
Reportin~ Period Covered
Start of grant through March 31
April I - September 30
A Grantee properly utilizing WBRS meets financial reporting requirements when
the Grantee uses that system to submit reports within the approved time frames, A
Grantee must set its own submission deadlines for its respective Sub-Grantees.
ii.
Progress Reports.
a, Reporting Dates for National Direct Parent Organizations: A
Grantee Progress Report CGPR") is due in WBRS on the first Monday in
December, 2005 for the period October 1,2004 through September 30,
2005. The report will require the Grantee's analysis of the AmeriCorps
grants it administers. This includes reporting on the operating sites that
have completed their program year by the reporting end date, as well as
the progress to date for operating sites still in operation for that project
period.
b, Reporting Dates for State Commissions, Tribes, and Territories: A
Grantee Progress Report ("GPR") is due in WBRS on the first Monday in
December, 2005 for the period October 1, 2004 through September 30,
2005, The report will require the Grantee's analysis of the AmeriCorps
grants it administers. This includes reporting on Sub-Grantees that have
Final - February 2004
31
ATTACHMENT III
completed their program year by the reporting end date and the progress to
date for those Sub-Grantees still in operation for that project period,
Hi. Final Financial Status Reports. A Grantee completing the final year of
its grant must submit, in lieu of the last semi-annual FSR, a final FSR that
is cumulative over the entire project period. This FSR is due within 90
days after the end of the grant
Note: Sub-Grantee Financial Status and Progress Reports
The Corporation expects each Grantee to set its own Sub-Grantee reporting requirements.
Grantees are responsible for monitoring Sub-Grantee activities and training needs,
tracking progress toward objectives, and identifYing challenges. Sub-Grantees must
adhere to the reporting requirements outlined and communicated by its Grantee for the
program year.
b. Ameritorps Member-Related Forms. The Grantee is required to submit the
following documents to the National Service Trust at the Corporation on forms provided
by the Corporation. Grantees and Sub-Grantees may use WBRS to submit these forms
electronically. Programs using WBRS must also maintain hard copies of the forms:
i. Enrollment Forms. Enrollment forms must be submitted no later than 30
days after a member is enrolled,
ii. Change of Status Forms. Member Change of Status Forms must be
submitted no later than 30 days after a member's status is changed, By
forwarding Member Change of Status Forms to the Corporation, State
Commissions and Parent Organizations signal their approval of the
change.
Hi. Exit/End-of- Term-of-Service Forms. Member ExitfEnd-of- Term-of-
Service Forms must be submitted no later than 30 days after a member
exits the program or finishes his/her term of service.
c. Benefit Provider Documentation. Programs are responsible for contacting applicable
benefit providers immediately and when a change of status affects the eligibility of a
member or when a member leaves the program early.
17. GRANT PERIOD AND INCREMENTAL FUNDING.
For the purpose of the Grant, a project period is the complete length of time the Grantee is
proposed to be funded to complete approved activities under the grant A project period may
contain one or more budget periods. A budget period is a specific interval of time for which
Federal funds are being provided to fund a Grantee's approved activities and budget
Unless otherwise specified, the Grant covers a three-year project period, In approving a
multiyear project period the Corporation makes an initial award for the first year of operation,
Additional funding is contingent upon satisfactory performance and the availability of funds.
Final- February 2004
32
ATTACHMENT III
The project period and the budget period are noted on the award document.
18. PERFORMANCE MEASUREMENT AND EVALUATION.
a. Performance Measurement. All grantees must establish, track, and evaluate
performance measures (i.e" outputs, intermediate-outcomes, end-outcomes) for their
ii.
III.
iv.
Grantees must:
establish performance measures in consultation with the Corporation, or
State Commission, as appropriate.
collect and organize performance measure data on an ongoing basis,
track progress toward mccting performance goals.
account for shortfalls in measured performance by explaining why they
occurred and providing plans for responding to the shortfalls,
include the results in progress and final reports.
programs,
i.
v.
b. Performance Measurement Requirements for Competitive versus Formula-type
Programs.
i. State Commissions are responsible for making the final determination of
performance measures for state formula programs, while the Corporation
makes the final determination for all other programs.
ii. The Corporation may require that formula programs revise their
performance measures to be acceptable if the State Commission has not
established appropriate performance measures.
Hi. While State Commissions must hold their sub-grantees accountable for
their performance measures, as a grantee, a State Commission is
accountable to the Corporation for its formula programs performance
measures.
c. Changes to Negotiated Performance Measures,
I. Grantees Illust request approval frolll the Corporation prior to making a
significant change to performance measures, A significant change may occur
in the following types of circumstances:
a, Refining the performance measure based on experience so that goals
become more realistic and manageable.
b, Replacing a measure related to one issue area with one related to an
entirely different issue area (Le., replacing an objective related to
health with one related to the environment),
c, Redefining the work performed by individuals under the grant (i.e.,
tutoring adults in English as opposed to running an after-school
program for third-graders).
d. Eliminating an activity due to a failure to secure necessary matching
funding (i,e., a program to train community volunteers was dependent
on private funding),
e. Redefining the measure with another (i.e., replacing one measure of
civic engagement {additional volunteer time] with another [voting]).
Final- February 2004
33
A TT ACHMENT III
d. Independent Evaluations. The Grantee is encouraged to obtain an independent
evaluation and must do so ifprovided for in the approved budget
e. External Evaluation and Data Collection. The Grantee must cooperate with the
Corporation and its evaluators in all monitoring and evaluation efforts. As part of this
effort, the Grantee must collect and submit certain member data, including the total
number of members in the Program, and the number of members by race, ethnicity,
gender, age, economic background, education level, disability classification and
geographic region, The Corporation will provide forms for collecting member data,
f. Accountability for Results. Eligibility for future funding may be contingent upon
compliance with these provisions as well as satisfactory performance.
Final- February 2004
34
ATTACHMENT III
C. GENERAL PROVISIONS
19. LEGISLATIVE AND REGULATORY AUTHORITY.
This Grant is authorized by and subject to the National and Community Service Act of 1990 as
amended, codified as 42 US.c. 12501 et seq., and 45 C.F.R. 2510 et seq.
20. OTHER APPLICABLE STATUTORY AND ADMINISTRATIVE PROVISIONS.
The following applicable federal cost principles, administrative requirements, and audit
requirements are incorporated by reference:
a. States, Indian Tribes, U.S. Territories, and Local Governments. The following
circulars and their implementing regulations apply to states, Indian tribes, U.S. territories,
and local governments:
i. Uniform Administrative Requirements for Grants and Cooperative
Agreements to State and Local Governments -- 45 C.F.R. 2541.
H. OMB Circular A-87, Cost Principles for State and Local Governments.
Hi. OMB Circular A-B3, Audits of States, Local Governments and Non-
Profit Organizations,
b. Nonprofit Organizations. The following circulars and their implementing regulations
apply to nonprofit organizations:
i. Uniform Administrative Requirements for Grants and Agreements with
Institutions of Higher Education, Hospitals and Other Nonprofit
Organizations -- 45 C.F,R 2543.
ii. OMB Circular A-122, Cost Principles for Nonprofit Organizations.
III. OMB Circular A-] 33, Audits of States, Local Governments and Non-
Profit Organizations.
c. Educational Institutions. The following circulars and their implementing regulations
apply to educational institutions:
i. Uniform Administrative Requirements for Grants and Agreements with
Institutions of Higher Education, Hospitals and Other Nonprofit
Organizations -- 45 C.F.R 2543.
H. OMB Circular A-21, Cost Principles for Educational Institutions.
Hi. OMB Circular A-B3, Audits of States, Local Governments and Non-
Profit Organizations.
d. Other Applicable Statutes and Regulations. The Grantee must comply with all other
applicable statutes, executive orders, regulations and policies governing the Program,
including but not limited to those cited in these Grant Provisions, the Grant Assurances
and Certifications, and those cited in 45 C.F,R. Parts 2541 and 2543,
rill~1 rehrll<1ry ::'004
35
ATTACHMENT III
21. RESPONSIBILITIES UNDER GRANT ADMINISTRATION.
a. Accountability of Grantee. The Grantee has full fiscal and programmatic
responsibility for managing all aspects of the grant and grant-supported activities, subject
to the oversight of the Corporation. The Grantee is accountable to the Corporation for its
operation of the AmeriCorps Program and the use of Corporation grant funds. It mLlst
expend grant funds in a judicious and reasonable manner, and it must record accurately
the service activities and outcomes achieved under the grant. Although Grantees are
encouraged to seek the advice and opinion of the Corporation on special problems that
may arise, such advice does not diminish the Grantee's responsibility for making sound
judgments and does not mean that the responsibility for operating decisions has shifted to
the Corporation,
b. Notice to Corporation. The Grantee will notify the appropriate Corporation Program
or Grants Officer immediately of any developments or delays that have a significant
impact on funded activities, any significant problems relating to the administrative or
financial aspects of the Grant, or any suspected misconduct or malfeasance related to the
Grant or Grantee. The Grantee will inform the Corporation official about the corrective
action taken or contemplated by the Grantee and any assistance needed to resolve the
situation.
c. Notice to the Corporation's Office ofInspector General. The Grantee must notify
the Office ofInspector General immediately of losses of federal funds or goods/services
supported with federal funds, or when information discovered by someone at a program
indicates that there has been waste, fraud or abuse, or any violation of criminal law, at the
program or at a sub-grantee.
22. FINANCIAL MANAGEMENT PROVISIONS.
a. General. The Grantee must maintain financial management systems that include
standard accounting practices, sufficient internal controls, a clear audit trail and written
cost allocation procedures as necessary, Financial management systems must be capable
of distinguishing expenditures attributable to this Grant from expenditures not
attributable to this Grant. This system must be able to identify costs by programmatic
year and hy budget category and to differentiate between direct and indirect costs or
administrative costs, For further details about the Grantee's financial management
responsibilities, refer to OMB Circular A-I 02 and its implementing regulations (4S
CF,R. 2543) or A-IIO and its implementing regulations (45 CF,R. 2541), as applicable,
b. Source Documentation. The Grantee must maintain adequate supporting documents
for its expenditures (federal and non-federal) and in-kind contributions made under this
Grant. Costs must be shown in books or records [e.g., a disbursement ledger or journal],
and must be supported by a source document, such as a receipt, travel voucher. invoice,
bill, in-kind voucher, or similar document.
Final - February 2004
36
ATTACHMENT III
c. Time and Attendance Records.
i. Staff.
(a) Except as provided in (b) and (c) below, salaries and wages charged
directly to this Grant or charged to matching funds must be supported by
signed time and attendance records for each individual employee
regardless of position, and by documented payrolls approved by a
responsible official of the Grantee, Except as provided in (b) and (c)
below, salaries and wages chargeable between this Grant and other
programs or functions of the Grantee organization must be supported by
signed time and attendance records for each individual regardless of
position, appropriately distributing the individual's time to the different
programs or functions.
(b) Educational institutions are not required to support charges for salaries
and wages with signed time and attendance records for professorial and
professional staff if they are in compliance with the criteria in Section 8,b
of OMS Circular A-2l for acceptable methods of documenting the
distribution of charges for personal services,
(c) State, Local and Indian Tribal governmental units are not required to
support charges for salaries and wages with signed time and attendance
records if they are in compliance with the standards of Section 11 ,h of
OMB Circular A-87 for the support and documentation of salaries and
wages.
ii. AmeriCorps Mem bers. The Grantee must keep time and attendance records
on all AmeriCorps members in order to document their eligibility for in-service
and post-service benefits. Time and attendance records must be signed and dated
both by the member and by an individual with oversight responsibilities for the
member.
d. Audits. Grantee organizations that expend $300,000 ($500,000 for fiscal years ending
after December 31, 2003) or more in a year in Federal awards shall have a single or
program-specific audit conducted for that year in accordance with the Single Audit Act,
as amended, 31 D.S.C. 7501, et seq., and OMS Circular A-133. (If the grantee expends
federal awards under only one federal program, it may elect to have a program specific
audit, if it is otherwise eligible.) A grantee that does not expend $300,000 ($500,000 for
fiscal years ending after December 31, 2003) in federal awards is exempt from the single
audit requirements of OMB Circular A-B3 for that year. However, it must continue to
conduct financial management reviews of its programs, and records must be available for
review and audit.
A recipient of a Federal grant (pass-through entity) is required in accordance with
paragraph 400(d) ofOMB Circular A-133, to do the following with regard to its
subrecipients: (I) identify the Federal award and funding source; (2) advise subrecipients
of all requirements imposed on them; (3) monitor subrecipient activities and compliance;
(4) ensure subrecipients have A-133 audits when required; (5) issue decisions and ensure
follow-up on audit findings in a timely way; (6) where necessary, adjust its own records
and financial statements based on audits; and (7) require subrecipients to permit access
Final - February 2004
37
ATTACHMENT III
by the pass-through entity and auditors to records and financial statements as necessary
for the pass-through entity to comply with A-133.
e. Consultant Services. Payments to individuals for consultant services under this Grant
will not exceed $443,00 per day (exclusive of any indirect expenses, travel, supplies and
so on).
23. ADMINISTRATIVE COSTS.
a. Definitions. "Administrative costs" mean general or centralized expenses of overall
administration of an organization that receives Corporation funds and does not include
particu lar Program or project costs. For organizations that have an established indirect
cost rate for federal awards, administrative costs mean those costs that are included in the
organization's indirect cost rate. Such costs are generally identified with the
organization's overall operation and are further described in OMB Circulars A-2 I, A-87
and A- I 22, For organizations that do not have an established indirect cost rate for federal
awards, administrative costs include:
i. Costs for financial, accounting, auditing, contracting or general legal services
except in unusual cases where they are specifically approved in writing by the
Corporation as program costs;
ii. Costs for internal evaluation, including overall organizational management
improvement costs (except for independent and internal evaluations of the
Program or project evaluations that are specifically related to creative methods of
quality improvement); and
iii. Costs for general liability insurance that protect the organization(s) responsible
for operating a Program or project, other than insurance costs solely attributable
to the Program or project.
Administrative costs may also include that portion of salaries and benefits of the
Program's director and other administrative staff not attributable to the time spent in
support of a specific Program or project. The principles that pertain to the allocation and
documentation of personnel costs are stated in the OMB circulars that are incorporated in
Corporation regulations [45 CFR 254L220(b)],
Administrative costs generally do not include the following allowable expenses directly
related to a Program or project (including their operations and objectives), such as:
i. Allowable direct charges for members, including living allowances, insurance
payments made on behalf of members, training and travel;
ii. Costs for staff (including salary, benefits, training and travel) who recruit, train,
place or supervise members or who develop materials used in such activities, if
the purpose is for a specific Program or project objective;
iii. Costs for independent evaluations and any internal evaluations of the Program
or project that are related specifically to creative methods of quality if!1provement;
iv. Costs, excluding those already covered in an organization's indirect cost rate,
attributable to staff that work in a direct Program or project support, operational,
or oversight capac ity, i nc I ud ing, but not Ii m ited to: support staff whose functions
Final- February 2004
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ATTACHMENT III
directly support Program or project activities; staff who coordinate and facilitate
single or multi-site Program and project activities; and staff who review,
disseminate and implement Corporation guidance and policies directly relating to
a Program or project;
v. Space, facility and communication costs that primarily support Program or
project operations, excluding those costs that are already covered by an
organization's indirect cost rate; and
vi. Other allowable costs, excluding those costs that are already covered by an
organization's indirect cost rate, specifically approved by the Corporation as
directly attributable to a Program or project.
b. Limitation by Statute. Administrative costs cannot exceed 5% of total Corporation
funds actually expended under this award.
c. Fixed 5%. If approved on a case-by-case basis by the Corporation, the grantee may
charge, for administrative costs, a fixed 5% of the total of the Corporation funds
expended. In order to charge this fixed 5%, the grantee match for administrative costs
may not exceed 10% of all direct cost expenditures. These rates may be used without
supporting documentation and are in lieu of an indirect cost rate.
d. Indirect Cost Rates.
i. If grantees have an approved indirect cost rate, such rate will constitute
documentation of the grantee's administrative costs including the 5% maximum
payable by the Corporation and the grantee match of administrative costs,
ii. Ifa grantee wants to claim more than 10% match in administrative costs it must
have or obtain an approved indirect cost rate. Where appropriate, the Corporation
will establish an indirect cost rate that may be used for this and other federal
awards.
e. Consistency of Treatment. To be allowable under an award, costs must be consistent
with policies and procedures that apply uniformly to both federally financed and other
activities of the organization, Furthermore, the costs must be accorded consistent
treatment in both federally financed and other activities as well as between activities
supported by different sources of federal funds,
24. EQUIPMENT AND SUPPLY COSTS.
Equipment and supplies will be handled in accordance with 45 C.F,R. 2541 - Uniform
Administrative Requirements for Grants and Cooperative Agreements to State and Local
Government or with 45 C.F.R, 2543 - Grants and Agreements with Institutions of Higher
Education, Hospitals, and Other Non-profit Organizations,
Final - February 2004
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ATTACHMENT III
25. PROJECT INCOME.
a. General. Income earned as a direct result of the Program's activities during the award
period may be retained by the Grantee and used to finance the non-Corporation share of
the Program.
b. Fees for Service. When using assistance under this Grant, the Grantee may not enter
into a contract for or accept fees for service performed by members when:
i. The service benefits a for-profit entity;
ii. The service falls within the other prohibited Program activities set forth in
these Grant Provisions; or
iii. The service violates the non-displacement Provisions of the Act set forth
in these Grant Provisions,
26. PAYMENTS UNDER THE GRANT.
a. Advance Payments. The Grantee may receive advance payments of Grant funds,
provided the Grantee meets the financial management standards specified in OMB
Circular A-I 02 and its implementing regulations (45 C.F,R, 2541) or A-II 0 and its
implementing regulations (45 C.F,R, 2543), as applicable,
b. Immediate Cash Flow Needs. The amount of advance payments requested by the
Grantee must be based on actual and immediate cash needs in order to minimize federal
cash on hand in accordance with policies established by the U.S. Department ofthe
Treasury in 31 C.F.R. 205,
c. Discontinuing Advance Payments. If a Grantee does not establish procedures to
minimize the time elapsing between the receipt of the cash advance and its disbursement,
the Corporation may, after providing due notice to the Grantee, discontinue the advance
payment method and allow payments in advance only by individual request and approval
or by reimbursement
d. Interest-Bearing Accounts. The Grantee must deposit advance funds received from
the Corporation in federally-insured, interest-bearing accounts. The exceptions to this
requirement follow:
i. Institutions of Higher Education and Other Non-Profit Organizations.
If a Grantee is covered by 45 C.F,R. 2543 it must maintain advance funds
in interest bearing accounts unless:
(a) It receives less than $120,000 in federal funds per year;
(b) The best reasonably available account would not be expected to
earn interest in excess of $250 per year on federal cash balances; or
(c) The required minimum balance is so high that it would not be
feasible within expected federal and non-federal cash resources.
Earned interest must be remitted annually to HHS-PMS, Rockville,
MD 20852, Grantees may keep up to $250 of interest per year to
offset administrative expenses.
Final - February 2004
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A TT ACHMENT III
ii. State and Local Governments. All Grantees and sub-Grantees covered
by 45 C.F.R. 2541, with the exception of State Governments and Indian
Tribes, must remit earned interest quarterly to the Corporation. Grantees
may keep up to $100 of the earned interest per year to offset
administrative expenses.
27. RETENTION OF RECORDS.
The Grantee must retain and make available all financial records, supporting documentation,
statistical records, evaluation and program performance data, member information and personnel
records for 3 years from the date of the submission of the final Financial Status Report (SF
269A). If an audit is started prior to the expiration of the 3-year period, therecords must be
retained until the audit findings involving the records have been resolved and final action taken.
28. SITE VISITS.
The Corporation reserves the right to make site visits to review and evaluate Grantee records,
accomplishments, organizational procedures and financial control systems; to conduct
interviews; and to provide technical assistance as necessary.
29. LIABILITY AND SAFETY ISSUES
a. Liability Insurance Coverage. The Grantee must have adequate liability insurance
coverage for the organization, employees and members, including coverage of
members engaged in on- and off-site project activities.
b. Member Safety. The Grantee must institute safeguards as necessary and appropriate
to ensure the safety of members. Members may not participate in projects that pose
undue safety risks.
30. DRUG-FREE WORKPLACE.
a. Notice to Employees and Members. In accordance with the Drug-Free Workplace
Act, 41 U.S.C. 701 et seq., implementing regulations, 45 C.F.R. 2542, and the Grantee's
certification, the Grantee must publish a statement notifying employees and members
that:
i.
The unlawful manufacture, distribution, dispensation, possession or use of
a controlled substance is prohibited in the Grantee's workplace and
Program;
Conviction of any criminal drug statute must be reported immediately to
the Grantee;
The employee's employment or member's participation is conditioned
upon compliance with the notice requirements; and
Certain actions will be taken against employees and members for violation
of such prohibitions,
ii.
iii.
IV.
Final February 2004
41
ATTACHMENT '"
b. Criminal Drug Convictions. The Grantee's employees and members must notify the
Grantee in writing of any criminal drug convictions for a violation occurring in the
workplace or during the performance of project activities no later than 5 days after such
conviction. The Grantee must notify the Corporation within 10 days of receiving notice
of such conviction. The Grantee must take appropriate action against such employee or
member, up to and including termination or member release for cause consistent with the
Corporation's rules on termination and suspension of service, or require the employee or
member to satisfactorily participate in an approved drug abuse assistance or rehabilitation
Program.
c. Drug-Free Awareness Program. The Grantee must establish a drug-free awareness
Program to inform employees and members about the dangers of drug abuse in the
workplace, the Grantee's policy of maintaining a Drug-Free workplace, any available
drug counseling, rehabilitation, and employee assistance and member support services,
and the penalties that may be imposed for drug abuse violations.
d. Grantee Non-Compliance. The Grantee is subject to suspension, termination or
debarment proceedings for failure to comply with the Drug-Free Workplace Act.
e. Non-Discrimination and Confidentiality Laws. In implementing the Drug-Free
Workplace Act, the Grantee must adhere to federal laws and its Grant assurances related
to alcohol and substance abuse non-discrimination and confidentiality.
31. NON-DISCRIMINATION.
a. Assurances, The Grantee must assure that its program or activity, including those of
its subgrantees, will be conducted, and facilities operated, in compliance with the
applicable statutes set forth below, as well as with their implementing regulations, The
Grantee must obtain an assurance of such compliance prior to extending Federal financial
assistance to subgrantees, The tJS Government shall have the right to seek judicial
enforcement of these assurances,
b. Discrimination Prohibited. A person, including a member, a community beneficiary,
or Program staff, may not, on the grounds of race, color, national origin, sex, age,
political affiliation, disability, or religion (except as noted below) be excluded from
participation in, denied the benefits of, or be otherwise subjected to discrimination,
directly or through contractual or other arrangements, under any program or activity
receiving federal financial assistance. The prohibition on discrimination on the basis of
disability protects otherwise qualified individuals with disabilities, The prohibition
against discrimination on the basis of religion with respect to Program staff applies only
to Program staff paid with Corporation funds but excludes staff paid with Corporation
funds who were already employed by the Grantee on the date the Corporation grant was
awarded.
This prohibition against discrimination includes but is not limited to:
Final - February 2004
42
ATTACHMENT III
i. Denying an opportunity to participate in, benefit from, or provide a
service, financial aid, or other benefit;
ii. Providing an opportunity which is different or provided differently;
iii. Denying an opportunity to participate as a member of a planning or
advisory body integral to the program;
IV. Segregating or subjeGting a person to separate treatment;
v. Providing an aid, benefit, or service to a qualified disabled person that is
less effective in affording opportunity to obtain the same result, gain the
same benefit, or reach the same level of achievement;
vi. Denying a qualified disabled person the opportunity to participate in
integrated programs or activities, even though permissibly separate or
different programs or activities exist;
vii. Restricting a person's enjoyment of an advantage or privilege enjoyed by
others;
viii. Providing different or separate aid, benefits, or services to disabled
persons unless necessary in order to provide them as.effectively as
provided to others;
ix. Treating a person differently in determining admission, enrollment, quota,
eligibility, membership or other requirements;
x. Using criteria or administrative methods, including failing to provide
needed auxiliary aids for disabled persons, which have the effect of
subjecting persons to discrimination, or defeating or substantially
impairing achievement ofthe objectives of the program for a person;
xi. Selecting a site or location offacilities with the purpose or effect of
excluding individuals from, denying them the benefits of, or subjecting
them to discrimination under the program;
xii. Denying a qualified disabled person a benefit, aid, or participation because
facilities whose ground breaking occurred after May 30, 1979 are
inaccessible to or unusable by disabled persons or because programs or
activities in facilities predating May 30, 1979, when viewed in their
entirety, are inaccessible to or unusable by disabled persons; and
xiii. Failing to provide reasonable accommodation to otherwise qualified
individuals with disabilities, The Corporation's "Civil Rights Statement
Regarding Volunteers, Service Participants and Other Beneficiaries," and
its "Policy Against Sexual, Racial, National Origin, or Religious
Harassment" which include additional discrimination prohibitions are
attached and incorporated herein,
c. Public Notice of Nondiscrimination. The Grantee must notify members. community
beneficiaries, applicants, Program staff, and the public, including those with impaired
vision or hearing, that it operates its program or activity subject to the nondiscrimination
requirements ofthe applicable statutes. The notice must summarize the requirements,
note the availability of compliance information from the Grantee and the Corporation,
and briefly explain procedures for filing discrimination complaints with the Corporation,
Sample language is:
Final - February 2004
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A TT ACHMENT III
It is against the law for organizations that receive federal financial assistance from
the Corporation for National and Community Service to discriminate on the basis
of race, color, national origin, disability, sex, age, political affiliation, or, in most
cases, religion. It is also unlawful to retaliate against any person who, or
organization that, files a complaint about such discrimination. In addition to
filing a complaint with local and state agencies that are responsible for resolving
discrimination complaints, you may bring a complaint to the attention of the
Corporation for National and Community Service. If you believe that you or
others have been discriminated against, or if you want more information, contact:
(Name, address, phone number - both voice and TOO, and preferably toll free -
FAX number and e-mail address of the Grantee) or
Equal Opportunity Office
Corporation for National and Community Service
1201 New York Avenue, NW
Washington. O.c. 20525
(202) 606-5000, ext 312 (voice); (202) 565-2799 (TOO)
(202) 565-2816 (FAX); eo@cns.gov (e-mail)
The Grantee must include information on civil rights requirements, complaint procedures
and the rights of beneficiaries in member contracts, handbooks, manuals, pamphlets, and
post in prominent locations, as appropriate. The Grantee must also notify the public in
recruitment material and application forms that it operates its program or activity subject
to the nondiscrimination requirements. Sample language, in bold print, is "This program
is available to all, without regard to race, color, national origin, disability, age, sex,
political affiliation, or, in most instances, religion." Where a significant portion of the
population eligible to be served needs services or information in a language other than
English, the Grantee shall take reasonable steps to provide written material of the type
ordinarily available to the public in appropriate languages,
d. Records and Compliance Information. The Grantee must keep records and make
available to the Corporation timely. complete and accurate compliance information to
allow the Corporation to determine if the Grantee is complying with the civil rights .
statutes and implementing regulations. Where a Grantee extends federal financial
assistance to subgrantees. the subgrantees must make available compliance information
to the Grantee so it can carry out its civil rights obligations.
The Corporation will provide specific guidance regarding records and compliance
information. At a minimum, the Grantee should have available racial, ethnic, sex, and
disability data regarding members/applicants, service recipients/applicants and Program
staff/applicants. This data should be sufficient to measure the distribution of benefits to
the eligible population and evaluate the services provided to the different segments of the
population being served. Data on members and Program staff should be gathered, on a
voluntary basis, directly from the individuals. Data on service recipients may be gathered.
estimated, or based on census or other statistics. Racial and ethnic data should be
gathered for the following categories:
Final - February 2004
44
A TT ACHMENT 1/1
· Hispanic/Latino/Spanish culture or origin or non-Hispanic/Latino/Spanish culture
or origin (one or the other) and one or more ofthe following:
. American Indian or Alaska Native
. Asian
. Black or African American
. Native Hawaiian or Other Pacific Islander
. White
e. Obligation to Cooperate. The Grantee must cooperate with the Corporation so that
the Corporation can ensure compliance with the civil rights statutes and implementing
regulations, The Grantee shall permit access by the Corporation during normal business
hours to its books, records, accounts, staff, members, facilities, and other sources of
information as may be needed to determine compliance,
f. Discrimination Complaints, Investigations and Compliance Reviews. The
Corporation may review the practices of the Grantee to determine civil rights compliance,
Any person who believes discrimination has occurred may file a discrimination
complaint with the Corporation's Equal Opportunity Office. The Grantee may not
intimidate, threaten, coerce, or discriminate against an individual to interfere with a right
or privilege secured by the civil rights acts or because the person made a complaint,
testified, assisted or participated in any manner in an investigation, proceeding, or
hearing. The Corporation will keep the identity of complainants and witnesses
confidential except as necessary to conduct an investigation, hearing, or judicial
proceeding.
The Corporation will investigate whenever a compliance review, rep9rt, complaint, or
other information indicates a possible failure to comply with the statutes and their
implementing regulations, If an investigation indicates a failure to comply, the
Corporation will so inform the Grantee and any applicable subgrantees and will attempt
to resolve the matter by voluntary means. If the matter cannot be resolved by voluntary
means, the Corporation will initiate formal enforcement action,
Discrimination complaints may be raised through the Grantee's grievance procedure. Use
of the Grantee's grievance procedure may not be a required precursor to filing a federal
discrimination complaint with the Corporation, Use of the Grantee's grievance procedure
does not preclude filing a federal discrimination complaint. The Grantee's grievance
procedure should advise members that use of the grievance procedure does not stop the
running of Corporation time frames for filing a discrimination complaint with the
Corporation. In all cases where discrimination allegations have been raised with the
Grantee, the Grantee must submit a written report to the Corporation's Equal Opportunity
Office, which has review authority over the investigation and disposition of all
discrimination complaints.
g. Self-Evaluation Requirements. The Grantee must comply with (1) the self-evaluation
requirements under section 504 of the Rehabilitation Act regarding accessibility for
individuals with disabilities; (2) the self-evaluation requirements ofthe Age
Final- February 2004
45
l
ATTACHMENT III
Discrimination Act of 1975; and (3) the self-evaluation requirements under title IX of the
Education Amendments of 1972 regarding discrimination based on sex, Guidance
regarding the self-evaluation requirements may be obtained from the Corporation's Equal
Opportunity Office, 1201 New York Avenue, NW, Washington, D.C 20525, (202) 606-
5000, ext 312 (voice); (202) 4565-2799 (TOO); (202) 565-2816 (FAX); or eo@cns.gov
(e-mail),
h. Applicable Statutes. In accordance with its assurances, the Grantee must comply with
all federal statutes relating to non-discrimination to the extent applicable, including, but
not limited to titles VI and VIII of the Civil Rights Act of 1964 (42 U,S.C 2000d and
3601 et seq.), section 504 of the Rehabilitation Act of 1973 (29 U,S.C 794), title IX of
the Education Amendments of 1972 (20 U,S,C 1681 et seq,) the Age Discrimination Act
of ] 975 (42 U.s.C 6101 et seq.), the Drug Abuse Office and Treatment Act of 1972 (P.L.
92-255), the Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and
Rehabilitation Act of 1970 (P.L. 91-616), the Public Health Service Act of 1912 (42
U.S.C 290dd-3 and 290ee-3), and the requirements of any other non-discrimination
provision in the National and Community Scrvice Act of] 990. (42 USe. ] 2635) or any
other applicable non-discrimination provision,
32. THE OFFICE OF INSPECTOR GENERAL
The Corporation's Office of Inspector General (OIG) conducts and supervises independent and
objective audits, evaluations, and investigations of Corporation programs and operations. Based
on the results of these audits, reviews, and investigations, the OIG recommends policies to
promote economy and efficiency and to prevent and detect fraud, waste, and abuse in the
Corporation's programs and operations.
The GIG also conducts and supervises audits of Corporation grantees, as well as legislatively
mandated audits and reviews, The legislatively mandated audits include the annual financial
statement audit, and fulfilling the requirements of the Government Information Security Reform
Act and its successor. the Federal Information Security Management Act A risk-based
approach, along with input received from Corporation management, is used to select grantees
and grants for audit The OIG hires audit firms to conduct some of its audits. The OIG audit
staff is available to discuss its audit function, and can be reached at (202) 606-5000. extensiun
390,
The GIG is available to offer assistance to AmeriCorps grantees that become aware of suspected
criminal activity in connection with the AmeriCorps program, Grantees should immediately
contact OIG when they first suspect that a criminal violation has occurred, The OIG
investigative staff is available to provide guidance and ensure that the appropriate law
enforcement agency is notified, if required, The OIG may be reached by email at
hotline@cnsoig,gov or by telephone at 1-800-452-8210, Following notification to OIG, grantees
should also inform the respective program and grants officers of the facts and circumstances
surrounding these incidents.
33. SUPPLEMENTATION, NON-DUPLICATION AND NON-DISPLACEMENT.
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46
A TT ACHMENT III
a. Supplementation. Grant funds may not be used to replace state or local public funds
that have been used to support Programs or projects of the type eligible to receive
Corporation Grant funds, For any given Program, this condition will be satisfied if the
aggregate non-federal public expenditure for that Program or project in the fiscal year
that support is to be provided is not less than the previous fiscal year.
b. Non-Duplication. Grant funds may not be used to duplicate services that are available
in the locality of a Program or project. The Grantee may not conduct activities that are
the same or substantially equivalent to activities provided by a state or local government
agency in which the Grantee entity resides,
c. Non-Displacement.
i. Prohibition on Displacing an Employee or a Position. The Grantee may
not displace an employee or position, including partial displacement such
as reduction in hours, wages or employment benefits, as a result of the use
by such employer of a member in a Program or project.
ii. Prohibition on Promotional Infringement. The Grantee may not create a
community service opportunity that will infringe in any manner on the
promotional opportunity of an employed individual.
Hi. Prohibition on Displacing Employee Services, Duties or Activities. A
member in a Program or project may not perform any services or duties. or
engage in activities that would otherwise be performed by an employee, as
part of the assigned duties of such employee.
iv. Prohibition on Supplanting, Hiring or Infringing on Recall Rights. A
member in a Program or project may not perform any services or duties, or
engage in activities, that:
a. Will supplant the hiring of employed workers; or
b, Are services, duties or activities with respect to which an individual
has recall rights pursuant to a collective bargaining agreement or
applicable personnel procedures.
v. Other Prohibitions. A member in a Program or project may not perform
services or duties that have been performed by or were assigned to any:
a, Currently employed worker;
b. Employee who recently resigned or was discharged;
c. Employee who is subject to a reduction in force or who has recall
rights pursuant to a collective bargaining agreement or applicable
personnel procedures;
d. Employee who is on leave (terminal, temporary, vacation, emergency
or sick); or
e. Employee who is on strike or is being locked out.
Final- February 2004
47
A TT ACHMENT 11/
34. GRIEVANCE PROCEDURE.
a. Setting Up a Grievance Procedure. In accordance with 42 USe. 12636 and
implementing regulations at 45 e.P,R. 2540.230, the Grantee must establish and
implement a process for filing and adjudicating grievances from members, labor
organizations and other interested parties. A grievance process may include dispute
resolution programs such as mediation, facilitation, assisted negotiation and neutral
evaluation. A grievance process must provide an opportunity for a grievance hearing and
binding arbitration. If the grievance alleges fraud or criminal activity, it must be brought
to the attention of the Inspector General of the Corporation immediately. Discrimination
complaints may also be raised through the grievance procedure.
b. In the event that a Sub-Grantee of a direct Grantee ofthe Corporation is no longer in
existence or otherwise does not provide a grievance procedure that complies with this
Provision, the direct Grantee is responsible for handling any grievance in accordance
with 45 e.F,R. 2540.230,
c. Alternative Dispute Resolution.
i. Informal Resolution. The aggrieved party may seek resolution of a grievance
through alternative means of dispute resolution (ADR) such as mediation or
facilitation, ADR proceedings must be initiated within 45 calendar days of the
date of the alleged occurrence. At the initial session of the ADR proceedings, the
party must be advised in writing of the right to file a grievance and right to
arbitration. If the matter is resolved, and a written agreement is reached, the party
will agree to forego filing a grievance on the matter under consideration.
ii. Neutral Facilitation. If ADR is instituted, the process must be aided by a neutral
party who, with respect to an issue in controversy, functions specifically to aid the
parties in resolving the matter through a mutually achieved and acceptable written
agreement. The neutral party may not compel a resolution. Proceedings before the
neutral party must be informal, and the rules of evidence will not apply, With the
exception of a written and agreed-upon ADR, the proceeding must be
confidential. Any decision by the neutral party is advisory and is not binding
unless both parties agree. If the grievance is not resolved within 30 calendar days
of initiation, the neutral party again must inform the aggrieved party of his or her
right to file a formal grievance.
d. Formal grievance proceeding.
i. Time Limits. Except for a grievance that alleges fraud or criminal activity, a
grievance must be made no later than one year after the date of the alleged
occurrence, If a hearing is held on a grievance, it must be conducted no later than
30 calendar days after the filing of such grievance, A decision on any such filed
grievance must be made no later than 60 days after filing,
ii. Effect of Informal Process. In the event an aggrieved party files a grievance after
participating in an informal dispute resolution process, the neutral party may not
participate in the formal grievance proceeding, In addition, no communication or
Final - Fehruary 2004
48
A TT ACHMENT III
proceeding of the informal dispute resolution process may be referred to or
introduced into evidence at a grievance or arbitration proceeding,
e. Arbitration.
i. Selection of Arbitrator. Ifthere is an adverse decision against the party who
filed the grievance, or no decision has been reached after 60 calendar days
after the filing ofa grievance, the aggrieved party may submit the grievance to
binding arbitration before a qualified arbitrator who is jointly selected and
who is independent of the interested parties, I f the parties cannot agree on an
arbitrator, within 15 calendar days after receiving a request frolll one of the
parties, the Corporation will appoint an arbitrator from a list of qualified
arbitrators.
ii. Time Limits. An arbitration proceeding must be held no later than 45 days
after the request for arbitration, or if the arbitrator is appointed by the
Corporation, the proceeding must occur no later than 30 calendar days after
the arbitrator's appointment. A decision must be made by the arbitrator no
later than 30 calendar days after the date the arbitration proceeding begins,
iii. Cost. In accordance with 42 D.S.C. 12636(f) (4) (D), the cost of the
arbitration proceeding must be divided evenly between the parties to the
arbitration unless the party requesting a grievance proceeding prevails. If the
grievant prevails, the Grantee must pay the total cost of the proceeding and
reasonable attorney's fees of the prevailing party incurred in connection with
the ADR proceeding.
iv. Effect of Noncompliance with Arbitration. Pursuant to 42 U.S.c. 12636(f)
(7), a suit to enforce an arbitration award may be brought in any federal
district court having jurisdiction over the parties without regard to the amount
in controversy or citizenship,
f. Suspension of Placement. If a grievance is filed regarding a proposed placement of a
member in a Program or project, such a placement must not be made unless the
placement is consistent with the resolution of the grievance,
g. Remedies, Remedies for a grievance filed under a procedure established by the
Grantee may include:
i. Prohibition of a placement of a member; and
ii. In grievance cases where there is a violation of non-duplication or non-
displacement requirements and the employer of the displaced employee is the
Grantee:
a, Reinstatement of the employee to the position he or she held prior to
the displacement;
b. Payment of lost wages and benefits;
c, Re-establishment of other relevant terms, conditions and privileges of
employment; and
d. Any other equitable relief that is necessary to correct any violation of
the non-duplication or non-displacement requirements or to make the
displaced employee whole,
Final- February 2004 49
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35. OWNERSHIP AND SHARING OF GRANT PRODUCTS.
a. Ownership. Unless otherwise specified, the Grantee owns and may copyright any
work that is subject to copyright, including software designs, training manuals, curricula,
videotapes and other products produced under the Grant. However, the Grantee may not
sell any work that includes an AmeriCorps logo without prior written approval from the
Corporation.
b. Corporation Use. The Corporation retains royalty-free, non-exclusive, and
irrevocable licenses to obtain, use, reproduce, publish or disseminate products, including
data, produced under the Grant and to authorize others to do so. The Corporation may
distribute such products through a designated clearinghouse.
c. Sharing Grant Products. To the extent practical, the Grantee agrees to make products
produced under the Grant available at the cost of reproduction to others in the field,
36. PUBLICATIONS.
a. Acknowlcdgmcnt of Support. Publications createu by members may include an
AmeriCorps logo if they are consistent with the purposes of the Grant. The Grantee is
responsible for assuring that the following acknowledgment and disclaimer appears in
any external report or publication of material based upon work supported by this Grant.
"This material is based upon work supported by the Corporation for National and
Community Service under AmeriCorps Grant No. _' Opinions or points of view
expressed in this document are those of the authors and do not necessarily reflect the
official position of, or a position that is endorsed by, the Corporation or the AmeriCorps
Program,"
b. Materials Provided to Corporation. The Grantee is responsible for assuring that two
copies of any such material are sent to the Corporation's Office of Public Affairs and
Program Office.
37. SUSPENSION OR TERMINATION OF GRANT.
a. Suspension of the Grant. In an emergency situation the Corporation may suspend a
Grant for not more than 30 calendar days, Examples of such situations may include, but
are not limited to:
i. Serious risk to persons or property;
ii. Violations of federal, state or local criminal statutes; and
. iii. Material violation(s) of the Grant or contract that is sufficiently serious
that they outweigh the general policy in favor of advance notice and
opportunity to show cause.
b. Termination of the Grant. Pursuant to 45 C.F,R. 2540AOO, the Corporation may
terminate payments under the grant, revoke the designated member positions, or recover
Final- February 2004
50
A TT ACHMENT III
Grant funds for failure comply with applicable provisions of this Grant. However, the
Corporation will provide the Grantee reasonable notice and opportunity for a full and fair
hearing, subject to the following conditions:
i. Notice. The Corporation will notify the Grantee by letter or telegram that it
intends to terminate payments, revoke positions or recover Grant funds, either in
whole or in part, unless the Grantee shows good cause why such assistance
should not be terminated, revoked or recovered. In this notice, the grounds and
the effective date for the proposed termination or revocation will be described.
The Grantee will be given at least 7 calendar days to submit written material in
opposition to the proposed action.
ii. Right to a hearing. The Grantee may request a hearing on a proposed
termination, revocation or recovery. Upon 5 days notice to the Grantee, the
Corporation may authorize the conduct of a hearing or other meetings at a
location convenient to the Grantee to consider the proposed action. A transcript
or recording must be made of a hearing.
c. The Grantee may suspend or terminate assistance to a Sub-Grantee, provided that such
action affords the Sub-Grantee, at a minimum, the notice and hearing rights set forth in
the Provisions applicable to the Corporation in this section (36).
38. ORDER OF PRECEDENCE.
Should there be any inconsistency among the Grant Award, the AmeriCorps Special Provisions,
the General Provisions, and the approved Grant Application, the order of precedence that will
prevail is (I) Grant A ward, (2) the AmeriCorps Special Provisions, (3) the General Provisions,
and (4) the approved Grant Application.
Final- February 2004
51
ATTACHMENT III
CORPORATION FOR NATIONAL AND COMMUNITY SERVICE
POLICY AGAINST SEXUAL, RACIAL, NATIONAL ORIGIN,
OR RELIGIOUS HARASSMENT
Our policy is to provide work and service environments free from sexual, racial, national origin,
or religious harassment. Whether in Corporation or grantee offices, in other work- or service-
related settings such as service sites, training sessions, site visits, or at work- or service-related
social events, such harassment is unacceptable.
Sexual harassment involves unwelcome sexual advances, requests for sexual favors, or any
verbal, physical or graph!~ cono l!ct of a sexual nature when:
(1) submission is explicitly or implicitly a term or condition of employment or service;
(2) submission or rejection is a basis for work or service decisions; or
(3) such conduct has the purpose or the effect of interfering with work or service
performance or creating an intimidating, hostile, or offensive work or service
environment. Slurs and other verbal or physical conduct relating to an individual's race,
national origin or religion also constitute harassment when that conduct's purpose or
effect is to interfere with work or service performance or create an intimidating, hostile,
or offensive work or service environment.
We expect Corporation and grantee supervisory and management personnel to immediately take
appropriate action to prevent or stop any harassment of employees, service participants, or
clients ofwhich they become aware, whether the harassing conduct is by employees, service
participants, or outside individuals such as service site or contractor personnel. Also, we will not
retaliate or tolerate any attempt at retaliation against a person who raises harassment concerns in
good faith. Any Corporation employee who violates our policy against harassment, or asserts a
false claim of harassment with a malicious intent, will be subject to appropriate disciplinary
action, up to and including termination. Any grantee that permits harassment in violation of this
policy will be subject to a finding of noncompliance and administrative procedures that may
result in termination offederal financial assistance from the Corporation and all other federal
agencIes.
Persons who believe they have been subjected to harassment in violation of non-haras~ment
provisions of applicable laws, regulations or this policy may raise their concerns with our Equal
Opportunity Office. However, claims of unlawful harassment not brought to the attention of our
Equal Opportunity Office within 45 days of their occurrence may not be accepted in a formal
complaint of discrimination. Our Equal Opportunity Office may be reached at (202) 606-5000,
extension 312 (voice), (202) 565-2799 (TDD), co@cns.gov, or through
www.nationalservice.org.
We encourage, but do not require, volunteers, service participants, and other beneficiaries to first
bring concerns about harassment to the director or appropriate supervisory personnel of the
program or project. We likewise encourage programs and projects to facilitate prompt resolution
of these concerns.
Directors of all programs and projects are requested to provide a copy of this policy to all
volunteers or service participants.
Final- February 2004
52
A TT ACHMENT III
CORPORATION FOR NATIONAL AND COMMUNITY SERVICE CIVIL RIGHTS
STATEMENT REGARDING VOLUNTEERS, SERVICE PARTICIPANTS
AND OTHER BENEFICIARIES
We continue to maintain the policy stated in our June 6, 1994 Civil Rights Statement:
Recognizing that the fabric of our society is strengthened by the diversity of its citizens, the
policy of the Corporation for National and Community Service is to ensure a mutual respect for
all differences among LIS. Participation in the Corporation and its programs and projects will be
based on lilerit and equal opportunity for all, 'without regard to factors such as race, color,
national origin, sex, sexual orientation, religion, age, disability, political affiliation, marital or
parental status, military service, or religious, community, or social affiliations. By adherihg to
this policy, the Corporation will be able to foster civic responsibility, strengthen the ties that bind
us together as a people, and provide educational opportunity for those who make a substantial
commitment to service.
This policy applies to programs and projects we conduct, as well as those receiving federal
financial assistance from us. For civil rights purposes, all programs and projects funded or
receiving volunteers or service participants under the National and Community Service Act, as
amended, or the Domestic Volunteer Service Act, as amended, are programs or activities
receiving federal financial assistance. Any grantee found to have unlawfully discriminated
against a volunteer, service participant, client, employee or beneficiary of such a program or
project will be subject to a finding of noncompliance and administrative procedures which may
result in termination offederal financial assistance from the Corporation and all other federal
agenc les.
Any volunteer, service participant, client, employee or beneficiary ofa program or project who
believes he or she has been subjected to discrimination in violation of nondiscrimination
provisions of applicable Jaws, regulations or this policy may raise his or her concerns with the
Corporation's Equal Opportunity Office. However, discrimination claims not brought to the
attention of our Equal Opportunity Office within 45 days of their occurrence may not be
accepted in a formal complaint of discrimination. Our Equal Opportunity Office may be reached
at (202) 606-5000, extension 312 (voice), (202) 565-2799 (TDD), eo@cns.gov, or through
www.nationalservice.org.
The Corporation's Equal Opportunity Office attempts to resolve concerns about discrimination
promptly and when possible uses an informal conciliation process to do so. We encourage, but
do not require, volunteers, service participants, and other beneficiaries to first bring concerns
about discrimination to the director or appropriate personnel of the program or project. We
likewise encourage directors of programs and projects to facilitate prompt resolution of these
concerns.
Directors of all programs and projects are requested to provide a copy of this policy to all
volunteers or service participants.
Final- February 2004
53
i'C' .~ '?
"-. . J _~ ... .~
" .. All
City Council
_~. ~g..~.nd~.,..~o~.~.r.....~..~.~..Q.r~..~..~t~.!TI.
Tracking Number: 989
Actual Date: 12/02/2004
Subject / Recommendation:
Approve the Clearwater Gas System Gas Supply Hedging Policy as part of the City Commission
Policies (Finance and Budget),
Summary:
The purpose of this agenda item is to approve a hedging policy for Clearwater Gas System
("CGS"). This policy outlines the appropriate uses and applicable restrictions on financial
instruments & financial products to be directed and utilized in accordance with the policy and in
connection with various contractual agreements CGS has in place with Florida Gas Utility, its
representative joint action agency, as well as other CGS business as may arise from time to
time.
With gas prices extremely volatile over the last four years, CGS has been repeatedly approached
by its customers requesting a stabilization of its gas prices. Therefore, it's very important to
remain competitive in the energy markets and have the ability to hedge our gas volumes with
counter-parties in an effort to provide stable and potentially lower gas costs to our customers.
Florida Gas Utility currently has the ability to utilize financial products on behalf of the City.
Resolution 02-02 and the All Requirements Gas Services Agreement previously contemplated
such authority; however, the City had never adopted a hedging policy to facilitate this function
and take advantage of this option. Using financial products will provide CGS with a mechanism
to remain competitive with electric companies as well as providing the same options and
advantages that other national public & private gas distribution systems currently have.
This policy is intended to be applied under the PGP Gas Supply Agreement No.1, which is before
the City Council for approval simultaneously herewith.
Originating: Gas System
Section Other items on City Manager Reports
Category: Other
Public Hearing: No
Financial Information:
~ Other
Bid Required? No
Bid Exceptions:
Other
Other Contract?
City Financial Policy
City Council
mw<<<<<w@~~g,"~~~~~<~yer M,~!!!,Q!:~!!,,~~<~!L@wmm~,_@
In Current Year Budget?
No
Budget Adjustment:
No
Review Approval
Chuck Warrinaton
11-08-2004 17:43: 11
Cvndie Goudeau
11-22-2004 11:02:44
Marcie Simmons
11-09-2004 10: 15:21
Bill Horne
11-22-2004 10:20: 13
Garry Brumback
11-12-2004 13:58:51
CLEARWATER GAS SYSTEM
GAS SUPPLY HEDGING POLICY
DEFINITIONS
CGS - the Clearwater Gas System.
CITY REPRESENTATIVE - A representative of the City of Clearwater, Florida, who can
authorize a Directive with respect to Financial Products, which term shall include, without
limitation, any person designated as a "member representative" or "project participant
representative" under an agreement between FGU and the City of Clearwater, Florida.
DIRECTIVE - an instrument, in writing, executed and delivered by a City Representative that
gives directions to FGU, or otherwise authorizes actions by FGU, with respect to Financial
Products and the related Financial Instruments.
FGU - Florida Gas Utility.
FINANCIAL INSTRUMENTS - one or more agreements entered into with respect to Financial
Products by and among the parties thereto, which may include FGU, CGS, or both, or any other
third party or counterparty thereto, and such term shall expressly include, without limitation, any
assignment or termination agreement related to Financial Products by FGU, CGS, or both.
FINANCIAL PRODUCTS - swaps, options, caps, collars, floors, forwards, futures contracts,
and any other Hedging transactions, and any combination of the foregoing, whether executed
"over-the-counter" pursuant to private agreement or "exchange-traded" on one or more regulated
contract markets.
HEDGE - to minimize or protect against loss by counterbalancing one transaction against
another or otherwise mitigating economic risk. The term "Hedging" shall be construed
accordingly.
SPECULATION - Using Financial Products in a manner not reasonably expected to reduce the
risk associated with CGS business activities.
POLICY
FOR USE WITHIN THE CITY OF CLEARWATER GAS SYSTEM ONLY. The purpose
of this Policy is to limit the financial risk to CGS of natural gas purchases by Hedging a portion
of its gas supply needs with the intention of reducing price volatility for the residential,
commercial and industrial customers of CGS. Hedging amounts for a specified period of time
will NOT exceed the expected average natural gas energy usage over that time period.
The City Representative shall issue a Directive to FGU in the event that CGS would like FGU to
take any action with respect to a Financial Product on its behalf. The General Manager of FGU
shall not be authorized to enter into a Financial Product on a system-wide basis for CGS without
a Directive from the City Representative.
Financial Products shall be purchased or otherwise acquired for the purpose of risk management
and, to the extent possible, shall be entered into in such a manner as to meet applicable
accounting standards as a "hedge" for accounting purposes; provided that the failure to obtain
any particular accounting treatment with respect to a Financial Product shall not form a basis for
challenging or otherwise calling into question the legality and enforceability of a Financial
Product entered into pursuant to a Directive. CGS shall not engage in any purchase or
acquisition of Financial Products for Speculation.
In the event of any inconsistency between the terms of this Policy and any existing agreement
between FGU and CGS, including, without limitation, the All Requirements Gas Services
Agreement, dated as of February 15, 2002 and as amended from time to time, between FGU and
CGS and entered into pursuant to Resolution No. 02-02 of the City of Clearwater, Florida, the
terms of such agreement shall prevail.
# 2379577_v3
?j) -- 2...
iI.S
City Council
'~~"~'U~U~~""~"""~g"~~<~_~~~~Q~~r~<~~<Qr~~~,~~!!t<_~~_
Tracking Number: 980
Actual Date: 12/02/2004
Subject / Recommendation:
Approve the Pinellas County Combined Voluntary Cooperation And Operational Assistance Mutual
Aid Agreement For Law Enforcement Services, and that the appropriate officials be authorized to
execute same.
Summary:
1. Mutual Aid Agreements among law enforcement agencies are authorized by Chapter 23,
Florida Statutes, for rendering voluntary assistance of a routine law enforcement nature to one
another across jurisdictional lines by and between such agencies, to such unlawful activities and
to enter into an operational assistance agreement whereby each agency may request and render
law enforcement assistance to the other law enforcement agencies during emergencies under s.
252.34, Florida Statutes.
2. This agreement will incorporate into one Mutual Aid Agreement a Voluntary Cooperation
Agreement concerning routine law enforcement matters and an Operational Assistance
Agreement for use during emergencies. The agreement will also incorporate the "Mutual Aid
Agreement Concerning Traffic Accident Investigations and Traffic Enforcement," which expires
on January 1, 2005.
3. The City Attorney and Police Chief recommend approval.
4. The Mutual Aid Agreement will be available for review in the Office of Official Records and
Legislative Services.
Originating: Police
Section Consent Agenda
Category: Agreements/Contracts - without cost
Financial Information:
Review Approval
Sid Klein
11-05-2004
11 :52:01
Garrv Brumback
11-17-2004
12:24:49
Rob Surette
11-17-2004
11: 10:09
Bill Horne
11-19-2004
12:48:36
Cyndie Goudeau
11-22-2004
09: 15:28
~
f.Q: PD:L
J..f.. II ' S'
PINELLAS COUNTY COMBINED MUTUAL AID AGREEMENT
THIS AGREEMENT is made and entered into by and between the undersigned
law enforcement agencies in Pinellas County, Florida, (agency) and the Sheriff of
Pinellas County, Florida (hereinafter also referred to individually as a "cooperating
agency"), and by and between the undersigned law enforcement agencies and the
Pinellas County School Board, to address voluntary cooperation, emergency
operational assistance, and traffic enforcement or crash investigation on contiguous
ways.
WITNESSETH:
WHEREAS, Part I, Chapter 23 of the Florida Statutes, the "Florida Mutual Aid
Act", authorizes law enforcement agencies to enter into agreements for voluntary
cooperation and assistance of a routine law enforcement nature across jurisdictional
lines by and between such agencies, to such unlawful activities and to enter into an
operational assistance agreement whereby each agency may request and render law
enforcement assistance to the other law enforcement agencies during emergencies
under s. 252.34, Florida Statutes; and
WHEREAS, the undersigned law enforcement agencies and sheriff recognize
that an increasing number of criminals are operating across jurisdictional lines and that
there is a need for a continuing multi-jurisdictional response to such unlawful activities;
and
WHEREAS, the undersigned law enforcement agencies and sheriff desire to
secure the benefits of such mutual aid for their respective jurisdictions; and
WHEREAS, the undersigned law enforcement agencies and sheriff recognize
that there is a need for a continuing multi-jurisdictional response to persons who are
involved in traffic accidents on or who are operating vehicles in violation of traffic laws
on streets, roads, or other traveled ways, including the right-of-way thereof, that are
adjacent to or that form the boundary between municipalities or between a municipality
and an unincorporated portion of Pinellas County; and
WHEREAS, the undersigned law enforcement agencies and sheriff determine
that it is in the best interest of the health, safety and welfare of the citizens of the
municipalities and of the citizens of Pinellas County to enter into a Voluntary
Cooperation Agreement and Operational Assistance Agreement; and
WHEREAS, 91006.12(2)(d), Florida Statutes, authorizes a district school board
to enter into mutual aid agreements with one or more law enforcement agencies as
provided in Chapter 23, Florida Statutes;
NOW, THEREFORE, in consideration of the mutual covenants expressed herein
and for other good and valuable consideration, receipt of which is hereby
acknowledged, the parties hereto agree as follows:
I. Provisions for Voluntary Cooperation
Each of the undersigned law enforcement agencies hereby approve and
enter into this Agreement authorizing each of the cooperating agencies to
request law enforcement assistance from and to render law enforcement
assistance to the other in dealing with any violations of Florida Statutes, to
include, but not necessarily be limited to, investigating homicides, sex
offenses, robberies, assaults, burglaries, larcenies, gambling, motor
vehicle thefts, drug violations pursuant to Chapter 893, Florida Statutes
and backup services during patrol activities, and inter-agency task forces
and/or joint investigations.
II. Routine Law Enforcement Matters
Any party to this agreement may request the voluntary assistance and
cooperation of any other party to this agreement relating to routine law
enforcement matters involving more than one jurisdiction.
III. In-Proqress Crime Assistance
A. Whenever a law enforcement officer from one jurisdiction views a
felony or a misdemeanor involving a breach of the peace occurring in
the jurisdiction of another cooperating agency, the law enforcement
officer may physically arrest the perpetrator and preserve the crime
scene. The officer shall immediately notify the cooperating agency of
the jurisdiction in which the incident occurred. Control of both the
persons apprehended and the crime scene will be relinquished to the
first available officer from the jurisdiction in which the incident
occurred. If that jurisdiction advises that they decline to dispatch an
officer to the scene, the officer on the scene shall complete the
investigation, issue any and all necessary citations or notices to
appear or effect an arrest, collect and preserve evidence, take
custody of any contraband article as defined in Section 932.701 (2),
Florida Statutes, and/or take such action as is necessary and
appropriate to protect the health and safety of the public as such may
be appropriate to the particular circumstances. The jurisdiction taking
law enforcement action shall, at the conclusion of the investigation,
notify the jurisdiction in which the incident occurred of the law
enforcement action taken. Whenever remaining at the scene
2
-----l
exposes either the officer or the subject to imminent physical danger,
the subject and any physical evidence or contraband article may be
transported or otherwise relocated in accordance with normal
procedure.
B. All fines shall accrue to the municipality or unincorporated area where
the offense occurred. In order to facilitate the proper disposition of
fines, each ticket written by municipal officers shall indicate the name
of the city in which the infraction occurred or, if the incident occurred
in the unincorporated area of the county, the ticket should note that
clearly on the face thereof.
The proceeds of any forfeiture action arising out of any law
enforcement described in above shall be shared equally between the
agency taking the law enforcement action and the agency having
original jurisdiction.
IV. Voluntary Investiqation
On-duty officers from one jurisdiction may conduct investigations into
criminal activity that occurs in their jurisdiction and make arrests related to
those investigations in any of the undersigned jurisdictions. If
enforcement action is anticipated, the location and nature of the
investigation will be reported to the agency's on-duty communication
liaison person of the jurisdiction where the suspect is located.
V. Traffic Control Assistance
Whenever a traffic accident involving suspected injuries of a serious
nature is reported to the jurisdiction in which the accident occurred and
that law enforcement agency is unable to provide the immediate response
necessary to render aid to the injured or prevent further injury, a
cooperating agency may be contacted for assistance. The cooperative
effort shall be restricted to necessary first aid and traffic direction, except
in those situations specified in Section VII of this Agreement.
VI. Hazardous Traffic Conditions Assistance
Where an automated traffic control device located in the jurisdiction of a
cooperating agency has malfunctioned and such malfunction poses a
hazard to vehicular or pedestrian traffic, an on-duty, uniformed, officer of
another cooperating agency may immediately commence to divert or
direct traffic or take such other action as is reasonably necessary to
reduce the hazard to the traveling public. Such officer shall immediately
3
notify the agency in whose jurisdiction the device is located of the
malfunction and the action being taken. Upon arrival of an officer from the
agency with original jurisdiction, the cooperating officer shall relinquish
control of the area.
VII. Traffic Accident InvestiQations and Enforcement of Traffic Laws on
Contiauous Ways
A. When a traffic accident occurs on a contiguous way, a uniformed, on-
duty officer from the adjacent municipality may commence necessary
first aid and traffic control. The officer on the scene shall contact the
jurisdiction in which the accident occurred. If that jurisdiction declines
to dispatch an officer to the scene, the officer on the scene shall
proceed to work the accident, to issue any and all necessary
citations, notices to appear or to effect arrests; collect and preserve
evidence, take custody of any contraband article as defined in
9932.701 (2), Florida Statutes, and/or to take such action as is
necessary and appropriate to protect the health and safety of the
public as such may be appropriate to the particular circumstances.
The jurisdiction taking law enforcement action shall, at the conclusion
of the event, notify the jurisdiction in which the event occurred of the
law enforcement action taken.
B. When a uniformed, on-duty, officer of a municipality observes a traffic
infraction occurring on a contiguous way, such officer may take
appropriate action to enforce the traffic laws of the state and issue
any and all necessary citations, notices to appear or to effect arrests;
collect and preserve evidence, take custody of any contraband article
as defined in 9932.701 (2), Florida Statutes, and/or to take such
action as is necessary and appropriate to protect the health and
safety of the public as such may be appropriate to the particular
circumstances. Such officer shall promptly notify the jurisdiction in
which the violation occurred of the incident and the action taken.
C. On-duty municipal law enforcement officers enforcing traffic laws and
conducting traffic accident investigations pursuant to this section shall
be under the direction and authority of the commanding officers of
their employing agency.
D. All fines shall accrue to the municipality or unincorporated area where
the offense occurred. In order to facilitate the proper disposition of
fines, each ticket written by municipal officers shall indicate the name
of the city in which the infraction occurred, or, if the incident occurred
4
in the unincorporated area of the county, the ticket should note that
clearly on the face thereof.
E. The proceeds of any forfeiture action arising out of any law
enforcement action described in Paragraphs A and B above shall be
shared equally between the agency taking the law enforcement
action and the agency having original jurisdiction.
F. "Contiguous way" in this section means those streets, roads, or other
traveled ways, including the right-of-way thereof, that are adjacent to
or that form the boundary between municipalities or between a
municipality and an unincorporated portion of Pinellas County.
G. The terms set out in this section shall constitute the procedures for
requesting and for authorizing assistance. No formal request or
authorization, except as set forth in this section, shall be necessary to
implement the traffic accident investigations and enforcement of
traffic laws on contiguous ways.
VIII. Inter-Aoencv Joint Task Forces
A. Law enforcement officers assigned to joint task force operations
pursuant to this Agreement may enforce all state laws while
engaged in the joint task force operation and shall take
enforcement action in accordance with law, including but not limited
to, taking custody of any offender, evidence, or contraband article
as defined in Section 932.701(2), Florida Statutes, and completing
appropriate documentation.
8. Law enforcement officers assigned to joint task force operations
pursuant to this Agreement shall be under the supervision of those
individuals specified in the joint-task force operational plan
approved by the cooperating agencies participating in the joint task
force.
IX. School Resource Officers
Any participating jurisdiction which has a contract with the School Board of
Pinellas County (hereinafter referred to as "Board") to provide School
Resource Officers (hereinafter referred to as "SRO") to schools within
such jurisdiction may permit its SRO to accompany a school group,
organization, or team to an authorized extracurricular function, event or
activity held at another Pinellas school campus or leased venue, at the
request of the Board or the principal of the school assigned to the SRO.
5
While so engaged, the SRO will have the same law enforcement authority
as though on his or her home campus. Notwithstanding any other
provisions in this Agreement, compensation for these services will be as
outlined in the contract between the Board and the participating
jurisdiction.
X. Marine Violations
Municipal law enforcement officers of cooperating agencies may enforce
all state boating and marine fishery laws and county boating ordinances
on the waterways of another cooperating agency as long as such
violations occur on waterways contiguous to and in view of the jurisdiction
of the officer's employing agency. In the case of a felony or a
misdemeanor involving a breach of peace, control of the person(s)
apprehended and the crime scene will be relinquished to the first available
officer from the jurisdiction in which the incident occurs. Cases involving
only a minor violation may be concluded at the scene by the issuance of a
Boating Citation or Notice to Appear.
XI. Law Enforcement Emerqencies
A. Each of the cooperating agencies may request law enforcement
assistance from and render law enforcement assistance to the other
cooperating agencies in a law enforcement emergency, including but
not limited to:
1. Civil affray and disobedience, disturbances, riots, large protest
demonstrations or controversial trials.
2. Any natural or man-made disaster.
3. Incidents which require rescue operations and crowd and traffic
control measures such as activities related to large-scale
evacuations, aircraft and ship disasters, fires, explosions, gas line
leaks, radiological incidents, train wrecks and derailments,
chemical and hazardous waste spills, and major electrical power
failures.
4. Terrorist activities including acts of sabotage.
5. Escapes from and disturbances within any local or state detention
facilities.
6. Hostage and barricaded subject situations.
6
7. Incidents requiring utilization of specialized units; e.g.,
underwater recovery, aircraft, ordnance disposal, crisis
management, and emergency response teams.
B. A law enforcement emergency is any situation which exceeds the
capability of the local agency to counteract effectively.
C. Upon request for assistance to the chief of police or his/her designee
or the sheriff or his/her designee, the law enforcement personnel and
equipment of the cooperating law enforcement agency shall be
dispatched to the location within the specified request.
D. A request for assistance made under this Section shall specify the
number of personnel and type and amount of equipment needed, the
location to which the personnel and equipment are to respond and
the official to whom they are to report. Nevertheless, the number of
personnel and amount and type of equipment which are actually
furnished shall be determined by the law enforcement agency to
whom the request is made.
E. If requested, law enforcement officers rendering assistance shall
assist in the transportation and processing of prisoners in situations
involving mass arrests and, if necessary, in the operation of
temporary detention facilities.
F. The cooperating agency's personnel and equipment shall be released
by the requesting party when assistance is no longer needed or when
such personnel and equipment are needed in the jurisdiction in which
they normally furnish police protection. Should the need arise, the
cooperating agency may, at any time, recall personnel and equipment
to the jurisdiction in which they are normally employed.
G. Resources which may be available under this Section shall include,
but are not limited to, personnel, marked or unmarked vehicles, 4-
wheel drive vehicles, police patrol boats, K-9 units, aircraft, and
national/state/county/city computer networks.
H. Law enforcement officers rendering assistance shall complete written
reports as if they were performing their duties in the jurisdiction in
which they are normally employed. Copies of these reports shall be
furnished to the agency requesting assistance within a reasonable
time. Additionally, officers rendering assistance shall prepare such
7
reports as they agency requesting assistance may reasonably
require.
XII. Terms and Procedures
A. A cooperating agency will answer a specific request for voluntary
cooperation or operational assistance only to the extent that the
available personnel and equipment are not required for adequate
protection of that agency. The commander of the agency, or the
commander's designee, shall have the sole authority to determine the
amount of personnel and equipment, if any, available to respond.
B. A specific request for voluntary cooperation or operational assistance
for law enforcement emergencies shall be made by the commander
of the agency or the commander's designee.
C. Voluntary cooperation can also be initiated, within the limitations as
more fully stated above, by an officer who views an in-progress crime
or a need for traffic control in another cooperating agency, or who
views a traffic violation or traffic accident scene, or marine violation
on a contiguous way. The supervising authority of that officer shall be
notified immediately to enable a supervisor from the officer's agency
to authorize and direct actions taken by the officer. An officer taking
voluntary action should notify the communication liaison person in the
assisted agency as soon as possible.
D. Whenever the employees of any law enforcement agency are
rendering aid outside its jurisdiction and pursuant to the authority
contained in this Agreement, such employees shall have the same
powers, duties, rights, privileges, and immunities as if they were
performing their duties in the jurisdiction in which they are normally
employed.
E. Law enforcement officers or employees responding to a specific
request for voluntary cooperation or operational assistance for law
enforcement emergencies shall be under the direction and authority
of the commanding officers of the agency to which they are called;
otherwise the officers shall be under the direction and authority of the
commanding officers of their own agency. However, no officer
rendering assistance shall be required to perform any act which
would violate standard operating procedures or supervisory
guidelines in the jurisdiction in which they are normally employed.
8
F. All pension, insurance, relief, disability, workers' compensation,
salary, death and other benefits which apply to the activities of
officers, agents and employees performing duties in the jurisdiction in
which they are normally employed shall apply to the same manner,
degree and extent while such officers, agents and employees are
rendering assistance under this Agreement. Notwithstanding the
above, nothing contained herein is intended to limit either party's right
to reimbursement for eligible costs as permitted by law.
G. Each agency shall be responsible for its own operational costs and
expenses in providing assistance under this Agreement and bearing
its own costs associated with any loss or damage incurred to such
jurisdiction's property, equipment, or resources as a result of the use
of such property during a voluntary cooperation or operational
assistance situation. No financial charges shall be made by either
party for assistance provided under this Agreement.
H. Each party shall provide and carry liability insurance, workers'
compensation insurance, self-insurance and other insurance
necessary to assure that each party shall be protected and
indemnified from any and all liabilities which may result by reason of
activities which are the subject of this Agreement. Liability insurance
shall be maintained in an amount not less than $100,000 per person
and $200,000 per occurrence. Each party shall furnish satisfactory
proof of insurance to the other party. "Insurance" may be procured
either privately or pursuant to an approval self-insurance risk-
financing program. Should any insurance policy or self-insurance
program expire, be cancelled or undergo material change, the
insured party shall, 30 days before such expiration, cancellation, or
change, mail notice of the same to the other party.
I. Nothing herein shall be deemed to transfer any legal or equitable
ownership of any equipment utilized pursuant to this Agreement from
one cooperating agency to the other. Further, nothing herein shall be
deemed to confer any agency or employer/employee relationship or
status upon the personnel of the cooperating agency while providing
assistance to the cooperating agency under this Agreement.
J. A cooperating agency shall not be required to respond to a request
for assistance if, in the opinion of the cooperating agency, providing
the assistance would interfere with or jeopardize the police protection
and safety of the citizens or property within the jurisdiction normally
served by that cooperating agency, or if the requested assistance is
otherwise unavailable.
9
K. Nothing in this Agreement is intended to be, nor shall it be construed
to be, a relinquishment or transfer, expressly or by implication, of any
of the powers or functions of the cooperating agency.
L. In no event shall this Agreement confer upon any person,
corporation, or entity, whether private or government, the right to
damages against the cooperating agency for any acts, omissions or
conduct, except as expressly provided in this Agreement.
M. Each party to this Agreement shall bear all court costs, defense
costs, and liability for its own law enforcement officers, agents and/or
employees for acts undertaken pursuant to this Agreement unless
such act was ordered by the commanding officer of the assisted
agency; but if such act was not ordered by the commanding officer of
the assisted agency, each agrees, to the extent permitted by law, to
indemnify and hold the other harmless of and from any claims,
lawsuits and/or causes of action arising out of the acts, omissions
and conduct of its own officers, agents and/or employees. In the
event that an act or acts undertaken pursuant to this Agreement is
ordered by the commanding officer directing the voluntary
cooperation or operational assistance situation, any defense or court
costs and liability that might arise shall be the responsibility of the
agency employing the commanding officer. However, nothing
contained herein shall be construed to waive or modify the provisions
of F.S. 768.28 or the doctrine of sovereign immunity as to any party
hereto.
N. This agreement shall be binding upon the parties from the date of
execution by a party hereto and shall continue in full force and effect
until terminated as provided herein below.
O. This agreement shall be binding upon the parties from the date of
execution and shall continue in full force and effect until January 5,
2009. However, any party hereto may withdraw or cancel such
party's participation pursuant to this agreement without liability to any
other parties hereto by providing written notice of such withdrawal no
less than ten (10) days prior thereto. However, the withdrawal from
or cancellation of this agreement shall be effective only as to that
party and this agreement shall remain in full force and effect as to
those remaining parties hereto who have provided no written notice
or cancellation or withdrawal.
10
P. This Agreement reflects the full and complete understanding of the
parties and may be modified or amended only by a document in
writing signed by all of the parties hereto.
XIII. Severabilitv
If any provision of this Agreement shall be declared invalid for any reason, such
invalidity shall not affect any of the remaining provisions of this Agreement.
IN WITNESS WHEREOF, the parties hereto cause their signatures to be affixed:
REMAINING PAGE BLANK
11
In acknowledgment and execution of the PINELLAS COUNTY COMBINED
MUTUAL AID AGREEMENT, pages one through eleven inclusive, I hereby set my hand
and seal:
PINELLAS COUNTY SHERIFF'S OFFICE
JIM COATS, Sheriff
STATE OF FLORIDA
COUNTY OF PINELLAS
BEFORE ME, this _ day of , 2004, an officer duly authorized by
law to administer oaths and take acknowledgments, personally appeared JIM COATS,
Sheriff of Pinellas County, Florida, who is personally known to me and who
acknowledged he executed the foregoing Agreement.
Signature
Type, Stamp, Print Name
Notary Public
Title
My commission expires:
Serial No.
PINELLAS COUNTY COMBINED
MUTUAL AID AGREEMENT - 11/04
12
In acknowledgment and execution of the PINELLAS COUNTY COMBINED
MUTUAL AID AGREEMENT, pages one through eleven inclusive, as authorized by
, we hereby set our hand and seal.
ATTEST:
TOWN OF BELLEAIR
CITY CLERK
By
Mayor
APPROVED AS TO FORM
By
City Manager
By
City Attorney
Law Enforcement Agency Head
STATE OF FLORIDA
COUNTY OF PINELLAS
BEFORE ME, this day of , 2004, an officer duly
authorized bylaw to administer oaths and take acknowledgments, personally appeared
the above officials of the Town of Belleair, a municipal corporation of Florida, who are
known by me or who produced as identification, and who
acknowledged they executed the foregoing Agreement as the proper officials of the
Town of Belleair, and the same is the act and deed of that City.
Signature
Notary Public
Title
Type, Stamp, Print Name
Commission No.
My commission expires:
PINELLAS COUNTY COMBINED
MUTUAL AID AGREEMENT -11/04
13
In acknowledgment and execution of the PINELLAS COUNTY COMBINED
MUTUAL AID AGREEMENT, pages one through eleven inclusive, as authorized by
, we hereby set our hand and seal.
ATTEST:
CITY OF BELLEAIR BEACH
By
CITY CLERK
Mayor
APPROVED AS TO FORM
By
City Manager
By
City Attorney
Law Enforcement Agency Head
STATE OF FLORIDA
COUNTY OF PINELLAS
BEFORE ME, this day of , 2004, an officer duly
authorized by law to administer oaths and take acknowledgments, personally appeared
the above officials of the City of Belleair Beach, a municipal corporation of Florida, who
are known by me or who produced as identification, and who
acknowledged they executed the foregoing Agreement as the proper officials of the City
of Belleair Beach, and the same is the act and deed of that City.
Signature
Notary Public
Title
Type, Stamp, Print Name
Commission No.
My commission expires:
PINELLAS COUNTY COMBINED
MUTUAL AID AGREEMENT - 11/04
14
In acknowledgment and execution of the PINELLAS COUNTY COMBINED
MUTUAL AID AGREEMENT, pages one through eleven inclusive, we hereby set our
hand and seal.
ATTEST:
CITY OF CLEARWATER
By
CITY CLERK
Mayor
APPROVED AS TO FORM
By
City Manager
City Attorney
By
Law Enforcement Agency Head
STATE OF FLORIDA
COUNTY OF PINELLAS
BEFORE ME, this day of , 2004, an officer duly
authorized by law to administer oaths and take acknowledgments, personally appeared
the above officials of the City of Clearwater, a municipal corporation of Florida, who are
known by me or who produced as identification, and who
acknowledged they executed the foregoing Agreement as the proper officials of the City
of Clearwater, and the same is the act and deed of that City.
Signature
Notary Public
Title
Type, Stamp, Print Name
Commission No.
My commission expires:
PINELLAS COUNTY COMBINED
MUTUAL AID AGREEMENT - 11/04
15
In acknowledgment and execution of the PINELLAS COUNTY COMBINED
MUTUAL AID AGREEMENT, pages one through eleven inclusive, as authorized by
, we hereby set our hand and seal.
ATTEST:
CITY OF GULFPORT
CITY CLERK
By
City Manager
APPROVED AS TO FORM
By
Law Enforcement Agency Head
City Attorney
STATE OF FLORIDA
COUNTY OF PINELLAS
BEFORE ME, this day of , 2004, an officer duly
authorized by law to administer oaths and take acknowledgments, personally appeared
the above officials of the City of Gulfport, a municipal corporation of Florida, who are
known by me or who produced as identification, and who
acknowledged they executed the foregoing Agreement as the proper officials of the City
of Gulfport, and the same is the act and deed of that City.
Signature
Notary Public
Title
Type, Stamp, Print Name
Commission No.
My commission expires:
PINELLAS COUNTY COMBINED
MUTUAL AID AGREEMENT - 11/04
16
In acknowledgment and execution of the PINELLAS COUNTY COMBINED
MUTUAL AID AGREEMENT, pages one through eleven inclusive, as authorized by
, we hereby set our hand and seal.
ATTEST:
TOWN OF INDIAN SHORES
By
CITY CLERK
Mayor
APPROVED AS TO FORM
By
City Manager
By
City Attorney
Law Enforcement Agency Head
STATE OF FLORIDA
COUNTY OF PINELLAS
BEFOREME, this day of , 2004, an officer duly
authorized by law to administer oaths and take acknowledgments, personally appeared
the above officials of the Town of Indian Shores, a municipal corporation of Florida, who
are known by me or who produced as identification, and who
acknowledged they executed the foregoing Agreement as the proper officials of the
Town of Indian Shores, and the same is the act and deed of that City.
Signature
Notary Public
Title
Type, Stamp, Print Name
Commission No.
My commission expires:
PINELLAS COUNTY COMBINED
MUTUAL AID AGREEMENT - 11/04
17
In acknowledgment and execution of the PINELLAS COUNTY COMBINED
MUTUAL AID AGREEMENT, pages one through eleven inclusive, as authorized by
, we hereby set our hand and seal.
ATTEST:
TOWN OF KENNETH CITY
CITY CLERK
By
Mayor
APPROVED AS TO FORM
By
City Manager
By
City Attorney
Law Enforcement Agency Head
STATE OF FLORIDA
COUNTY OF PINELLAS
BEFORE ME, this day of , 2004, an officer duly
authorized by law to administer oaths and take acknowledgments, personally appeared
the above officials of the Town of Kenneth City, a municipal corporation of Florida, who
are known by me or who produced as identification, and who
acknowledged they executed the foregoing Agreement as the proper officials of the
Town of Kenneth City, and the same is the act and deed of that City.
Signature
Notary Public
Title
Type, Stamp, Print Name
Commission No.
My commission expires:
PINELLAS COUNTY COMBINED
MUTUAL AID AGREEMENT - 11/04
18
In acknowledgment and execution of the PINELLAS COUNTY COMBINED
MUTUAL AID AGREEMENT, pages one through eleven inclusive, as authorized by
, we hereby set our hand and seal.
ATTEST:
CITY OF LARGO
CITY CLERK
By
Mayor
APPROVED AS TO FORM
By
City Manager
By
City Attorney
Law Enforcement Agency Head
STATE OF FLORI DA
COUNTY OF PINELLAS
BEFORE ME, this day of , 2004, an officer duly
authorized by law to administer oaths and take acknowledgments, personally appeared
the above officials of the City of Largo, a municipal corporation of Florida, who are
known by me or who produced as identification, and who
acknowledged they executed the foregoing Agreement as the proper officials of the City
of Largo, and the same is the act and deed of that City.
Signature
Notary Public
Title
Type, Stamp, Print Name
Commission No.
My commission expires:
PINELLAS COUNTY COMBINED
MUTUAL AID AGREEMENT - 11/04
19
In acknowledgment and execution of the PINELLAS COUNTY COMBINED
MUTUAL AID AGREEMENT, pages one through eleven inclusive, as authorized by
, we hereby set our hand and seal.
ATTEST:
CITY OF PINELLAS PARK
CITY CLERK
By
Mayor
APPROVED AS TO FORM
By
City Manager
By
City Attorney
Law Enforcement Agency Head
STATE OF FLORIDA
COUNTY OF PINELLAS
BEFORE ME, this day of , 2004, an officer duly
authorized by law to administer oaths and take acknowledgments, personally appeared
the above officials of the City of Pinellas Park, a municipal corporation of Florida, who
are known by me or who produced as identification, and who
acknowledged they executed the foregoing Agreement as the proper officials of the City
of Pinellas Park, and the same is the act and deed of that City.
Signature
Notary Public
Title
Type, Stamp, Print Name
Commission No.
My commission expires:
PINELLAS COUNTY COMBINED
MUTUAL AID AGREEMENT - 11/04
20
In acknowledgment and execution of the PINELLAS COUNTY COMBINED
MUTUAL AID AGREEMENT, pages one through eleven inclusive, as authorized by
, we hereby set our hand and seal.
ATTEST:
CITY OF ST. PETE BEACH
CITY CLERK
By
Mayor
APPROVED AS TO FORM
By
City Manager
By
City Attorney
Law Enforcement Agency Head
STATE OF FLORIDA
COUNTY OF PINELLAS
BEFORE ME, this day of , 2004, an officer duly
authorized by law to administer oaths and take acknowledgments, personally appeared
the above officials of the City of St. Pete Beach, a municipal corporation of Florida, who
are known by me or who produced as identification, and who
acknowledged they executed the foregoing Agreement as the proper officials of the City
of St. Pete Beach, and the same is the act and deed of that City.
Signature
Notary Public
Title
Type, Stamp, Print Name
Commission No.
PINELLAS COUNTY COMBINED
MUTUAL AID AGREEMENT - 11/04
21
In acknowledgment and execution of the PINELLAS COUNTY COMBINED
MUTUAL AID AGREEMENT, pages one through eleven inclusive, as authorized by
, we hereby set our hand and seal.
ATTEST:
CITY OF ST. PETERSBURG
CITY CLERK
By
Mayor
APPROVED AS TO FORM
By
City Manager
By
City Attorney
Law Enforcement Agency Head
STATE OF FLORIDA
COUNTY OF PINELLAS
BEFORE ME, this day of , 2004, an officer duly
authorized by law to administer oaths and take acknowledgments, personally appeared
the above officials of the City of St. Petersburg, a municipal corporation of Florida, who
are known by me or who produced as identification, and who
acknowledged they executed the foregoing Agreement as the proper officials of the City
of St. Petersburg, and the same is the act and deed of that City.
Signature
Notary Public
Title
Type, Stamp, Print Name
Commission No.
PINELLAS COUNTY COMBINED
MUTUAL AID AGREEMENT -11/04
22
In acknowledgment and execution of the PINELLAS COUNTY COMBINED
MUTUAL AID AGREEMENT, pages one through eleven inclusive, as authorized by
, we hereby set our hand and seal.
ATTEST:
CITY OF TARPON SPRINGS
CITY CLERK
By
Mayor
APPROVED AS TO FORM
By
City Manager
By
City Attorney
Law Enforcement Agency Head
STATE OF FLORIDA
COUNTY OF PINELLAS
BEFORE ME, this day of , 2004, an officer duly
authorized by law to administer oaths and take acknowledgments, personally appeared
the above officials of the City of Tarpon Springs, a municipal corporation of Florida, who
are known by me or who produced as identification, and who
acknowledged they executed the foregoing Agreement as the proper officials of the City
of Tarpon Springs, and the same is the act and deed of that City.
Signature
Notary Public
Title
Type, Stamp, Print Name
Commission No.
PINELLAS COUNTY COMBINED
MUTUAL AID AGREEMENT - 11/04
23
In acknowledgment and execution of the PINELLAS COUNTY COMBINED
MUTUAL AID AGREEMENT, pages one through eleven inclusive, as authorized by
, we hereby set our hand and seal.
ATTEST:
CITY OF TREASURE ISLAND
CITY CLERK
By
Mayor
APPROVED AS TO FORM
By
City Manager
By
City Attorney
Law Enforcement Agency Head
STATE OF FLORIDA
COUNTY OF PINELLAS
BEFORE ME, this day of , 2004, an officer duly
authorized by law to administer oaths and take acknowledgments, personally appeared
the above officials of the City of Treasure Island, a municipal corporation of Florida, who
are known by me or who produced as identification, and who
acknowledged they executed the foregoing Agreement as the proper officials of the City
of Treasure Island, and the same is the act and deed of that City.
Signature
Notary Public
Title
Type, Stamp, Print Name
Commission No.
PINELLAS COUNTY COMBINED
MUTUAL AID AGREEMENT -11/04
24
In acknowledgment and execution of the PINELLAS COUNTY COMBINED
MUTUAL AID AGREEMENT, pages one through eleven inclusive, we hereby set our
hand seal.
ATTEST:
SCHOOL BOARD OF PINELLAS COUNTY,
FLORIDA
Ex-Officio Secretary
By
Chairperson
APPROVED AS TO FORM
By
Law Enforcement Agency Head
By
School Board Attorney
STATE OF FLORIDA
COUNTY OF PINELLAS
BEFORE ME, this day of , 2004, an officer duly
authorized by law to administer oaths and take acknowledgments, personally appeared
the above officials of the School Board of Pinellas County, Florida, who are known by
me or who produced as identification, and who acknowledged they
executed the foregoing Agreement as the proper officials of the City of Treasure Island,
and the same is the act and deed of that City.
Signature
Notary Public
Title
Type, Stamp, Print Name
Commission No.
PINELLAS COUNTY COMBINED
MUTUAL AID AGREEMENT -11/04
25
~'\..J(6S - I
J I '"
City Council
....w......w~~9!I~.~.!:! co~.~.r.....~..~.!~I~nd.~<.~"...<.<._.w
Tracking Number: 973
Actual Date: 12/02/2004
Subject / Recommendation:
Approve an Interlocal Agreement with Pinellas County relating to intergovernmental cooperation
for effective post-disaster debris management, debris site monitoring; ratify and confirm
piggybacking the county contract with Phillips and Jordan Inc.(P&J), of Robbinsville, NC,
effective 9/18/04, for debris removal, reduction, and disposal; ratify and confirm an increase in
the P&J contract for additional storm services for $337,000 or a not to exceed total of $400,000;
authorize the appropriation of an additional $600,000 from the Central Insurance Fund retained
earnings to project 0181-99927 as funding for continued storm related damage, repair and
city-wide debris clean-up; and that the appropriate officials be authorized to execute same.
Summary:
In the wake of Hurricane Frances, Pinellas County activated its debris management plan and
related contracts for debris management and debris site monitoring. Upon reviewing the county
contract with Phillips and Jordan, Inc. (P&J), Solid Waste/General Services (SW/GS) discovered
the county contract was much more economical than the contract Clearwater had with Grubbs,
Inc. The Legal Department determined Clearwater was not obligated to activate the Grubbs
contract. SWIGS then requested, and was granted, emergency approval to piggyback the
county contract for debris removal and disposal. The Legal Department then gave Grubbs notice
of termination. P&J who has an excellent record working with FEMA, upon request, committed
to provide Clearwater the same type assistance as was provided for in the county contract at the
same terms and conditions. P&J also assisted in establishing procedures that would facilitate
accountability and FEMA reimbursement. The county contract has subsequently been amended
twice. Once to include operation of a burn site using air curtain burning and the second to
approve open burning when the quantity of debris became too large for air curtain burning.
Clearwater will be expected to pay its proportionate share of unreimbursed operating cost for
burn site operation. These costs should be minimal compared to normal disposal costs.
During September 2004 an emergency purchase order was issued for $60,000 to fund debris
removal by P&J for hurricane Frances. In October, P&J continued to remove and burn
considerable storm debris from Clearwater for an additional $337,000. On October 21st, the
Council approved a transfer of $500,000 from the Central Insurance Fund retained earnings to
fund the initial costs of storm clean-up. At that time it was unknown what the cost would be.
At this time, we are requesting an additional $600,000. Once the FEMA reimbursement has been
received, we will return these funds to the Central Insurance Fund. This additional appropriation
will be processed as a first quarter, FY 2004/05 budget amendment.
Originating: Solid Waste/General Services
Section Consent Agenda
Category: Purchasing item with contract document
Financial Information:
~ Purchase
In Current Year Budget?
No
ater
City Council
<",,,~g~I!~"~J;~~~~r<<<,~,~,~,~ra n~,!!,!!,~~,~",....w,..w....w.",,,~..,
Budget Adjustment:
Yes
Budget Adjustment Comments:
This brings the first quarter amendment uo to $1.1 million for storm clean-up.
Current Year Cost:
$400,000.00
Annual Operating Cost:
$400,000.00
For Fiscal Year:
10/01/2004 to 09/30/2005
Total Cost:
$400,000.00
Not to Exceed:
$400,000.00
Aporooriation Code(s)
0181-99927-543500-529-000
Amount
$337,000.00
Comments
Increase purchase order to a total of
$400,000.00
Review Approval
Bob Brumback
Garry Brumback
11-08- 2004 16:20:20
11-09- 2004 11 :46:25
11-12-2004 13:38: 18
11-08-2004 17:01 :58
11-12-2004 14:54:43
11-09- 2004 09:08: 12
11-12-2004 11:21:24
Brvan Ruff
Bill Horne
Georoe McKibben
Cvndie Goudeau
Tina Wilson
\R~.. SvJ /(:is-~ \
~t~- II.b
INTERLOCAL AGREEMENT RELATING TO INTERGOVERNMENTAL
COOPERATION FOR EFFECTIVE POST-DISASTER
DEBRIS MANAGEMENT AND DEBRIS SITE MONITORING.
This Agreement, made and entered into this
day of September 2004, and
between the parties, City of Clearwater, (hereinafter "CITY") and Pinellas County,
Florida, (hereinafter "COUNTY").
WHEREAS, SI63.01, Florida Statutes, The Florida Interlocal Cooperation Act of
1969 authorizes local government units to enter into interlocal agreements to enable them
to best meet the needs of their citizenry; and
WHEREAS, COUNTY and CITY recognize that many disasters do not recognize
artificial jurisdictional boundaries; and
WHEREAS, coordination of local government jurisdictions will allow for
economies of scale, mutual aid to other jurisdictions, and ease of compliance with
stringent Federal Emergency Management Agency (hereinafter "FEMA") requirements
for federal reimbursement during post disaster clean-up activities; and
WHEREAS, COUNTY and CITY desire to implement an time efficient, cost
effective, and responsive system to meet both the debris management needs of the area,
and also the debris monitoring required for FEMA reimbursements; and
WHEREAS, joint utilization of debris management services and debris site
monitoring services will allow the local government jurisdictions to meet their respective
needs in the most efficient manner; and
WHEREAS, COUNTY and CITY desire to formalize their respective obligations
to allow for the joint administration of the aforementioned services; and
F:\USERS\A TTY\A TYKB41 \WPDOCS\UTlLlTlE\Debris Management\Emergency Assistance lnterlocal CLEARWATER 092104
revised sig block.doc Page 1 of 4
NOW THEREFORE, in consideration of the covenants and agreements hereafter
contained, it is mutually agreed by and between the parties hereto as follows:
SECTION I - SCOPE AND FISCAL RESPONSIBILITY
1. The COUNTY and CITY agree that the attached Exhibit A "Scope of Services,"
which is hereby incorporated by reference, shall constitute the scope of services
and fiscal responsibilities of the parties.
SECTION II - COORDINATION
2. CITY agrees to provide, at its sole cost, a liaison between CITY and COUNTY to
allow for coordination of efforts and the timely administrative resolution of issues
that may arise from this joint effort. The name and contact information for the
liaison shall be communicated as soon as practicable to Warren Smith, Director of
Pinellas County Solid Waste Operations and County Emergency Debris Manager,
at both (727) 464-7500 and wnsmith@co.pinellas.tlus, and to Chris Staubus,
Pinellas County Utilities Executive Assistant Director at (727) 464-3516 and
cstaubus@co.pinellas.f1.us.
SECTION III - TERM AND TERMINATION
3. This Agreement shall become effective retroactively to September 19, 2004 upon
execution by the parties and filing with the Clerk of the Circuit Court for Pinellas
County. The Agreement may be terminated upon a party providing a 3D-day
written notice to the other party.
SECTION IV - AMENDMENT PROCEDURES
4. Either party may initiate an amendment to this Agreement. All amendments shall
be in writing and shall not be effective against any party until executed by both
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parties. Only the Chairperson ofthe governing body of each party, after approval
ofthe governing body, may execute either this Agreement or any subsequent
amendment, unless the entity's charter, governing documents, or ordinances
provide otherwise.
SECTION V - RESERVATION OF RIGHTS TO SOVEREIGN IMMUNITY AND
DECLARATION OF INDEPENDENT STATUS
5. Nothing in this Agreement shall be construed to affect either party's entitlement
under Florida Law to sovereign immunity, nor shall this Agreement be construed
to create any indemnification by one party of another. This Agreement shall
furthermore not be construed to create any agency relationships among the parties
or any relationship other than independent contracting entities.
IN WITNESS WHEREOF, the undersigned have hereto affixed their hands and seals the
day and year first above-written.
Countersigned:
CITY OF CLEARWATER, FLORIDA
By:
Brian J. Aungst
Mayor
William B. Horne II
City Manager
Approved as to form:
Attest:
Bryan D. Ruff
Assistant City Attorney
Cynthia E. Goudeau
City Clerk
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PINELLAS COUNTY, FLORIDA
by and through its Board of County
Commissioners
By:
Chairman
ATTEST: KARLEEN F. DeB LAKER,
CLERK
By:
Deputy Clerk
(seal)
APPROVED AS TO FORM:
Office of the County Attorney
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revised sig block.doc Page 4 of 4
EXHffiIT A
SCOPE OF SERVICES
EMERGENCY ASSISTANCE FOR DEBRIS MANAGEMENT AND FEMA
GUIDELINE ADHERENCE
CITY OF CLEARWATER IN COOPERATION WITH PINELLAS COUNTY,
FLORIDA
September 2004
GENERAL
Pinellas County has contracted with Phillips & Jordan to assist in the recovery and
disposal of debris located in unincorporated areas of the County. The City of Clearwater
has entered into a parallel contract, or will enter into a contract with Phillips & Jordan.
Phillips & Jordan will function as the debris removal contractor for purposes of site
cleanup in accordance with FEMA requirements for cost recovery.
The work of Phillips & Jordan will be monitored for FEMA cost recovery by Pinellas
County and City of Clearwater staff assisted by the consulting engineering firm of Patton,
Harris, Rust & Associates, Inc. (PHRA). Procurement of the services is authorized by the
County PO Number 216245. Clearwater may separately contract with PHRA or another
contractor for services within its jurisdictional boundaries in lieu of utilizing its own staff
for monitoring.
RESPONSIBILITIES OF PINELLAS COUNTY
. Provide debris disposal site and oversee its operation.
. Provide debris disposal site monitoring and accounting by volume for all debris
entering the site (including debris from within the City of Clearwater) in such a
way that debris volumes may be tracked, allocated and reported by the entity,
municipality or the County that transported eligible debris to the site.
. Provide an accounting ofFEMA reimbursement for the costs incurred by the
County for the set-up and closeout ofthe debris disposal site and debris disposal
site monitors.
. Provide an invoice with appropriate backup to Clearwater for the prorata share of
costs based on volume for the cost for the set-up and close-out of the debris
disposal site and debris disposal site monitors.
RESPONSIBILITIES OF CLEARWATER
. To use only trucks and trailers that have been measured by the County or its
representative prior to hauling operation with their capacity in cubic yards
prominently marked on the vehicles.
. Deliver only clean vegetative storm debris to the disposal site.
. All mixed debris will be rejected from the site, or reloaded if dumped at the site
and transported for proper disposal at the city's expense.
. Entering into a contract with Philips and Jordan with terms similar the County's
contract for the disposal of vegetative debris.
F:\USERS\A1TY\AlYKB41 \ WPD0C5\ UTIllllE\Debris Management\DWledin Frances Svcs revised dsc 092004.doc
. Disposal of all storm related debris that is not clean vegetative debris.
. Submittal of all applicable FEMA fillings for collection and transport of eligible
debris.
. Field monitoring of Clearwater's loading sites and other requirements as deemed
necessary to receive FEMA reimbursement for eligible debris.
COST RECOVERY
The County will administer the contracts for Phillips & Jordan and for PHRA for those
respective services provided on behalf of Pinellas County. The City of Clearwater will
administer its contract with Phillips & Jordan for debris collection and transport (pickup
and hauling) to the County debris management site(s).
The City of Clearwater will pay its local share of the Phillips & Jordan and PHRA costs
for debris site management, including site preparation and closure, and site operations
and maintenance, based on the direct proportion of Clearwater versus total coupons or
tickets at those sites used for disposal of Clearwater debris.
The City of Clearwater will pay its local share of costs for debris collection and related
monitoring and debris management of materials collected within the City.
In addition, the City of Clearwater will administer any other contracts for services that it
may elect to use independent of Pin ell as County.
F:\USERS\ATI'Y\ATYKB41\ WPDCXS\UTIllTIE\Debris Managemem\Dunedin Frances Svcs revised dsc 092004.doc
E{\Jb-~
City Council
~~g.,~"!!"~"~~.~,~~,r,,.,.~~,~,~,r,~,!!~~~~~,.." W',
11, '7
Tracking Number: 967
Actual Date: 12/02/2004
Subject / Recommendation:
Award a one year contract to Biological Research Associates, of Tampa for Nuisance & Exotic
Control & Maintenance on City Lakes, Ponds, Channels and Immediate Adjacent Transitional
Areas in the amount of $93,940.00, and authorize the appropriate officials to execute same.
Summary:
A request for proposal and Quotes RFP No.04-0057-EN was issued on Wednesday, October 6,
2004 for the Nuisance and Exotic Vegetation Control and Maintenance of City Lakes, Ponds,
Channels, Gabion Structures, and Immediately Adjacent Transitional Areas.
The work scope called for the control of nuisance and exotic species, which impede water flow
and/or diminish the habitat value of twenty-eight specified lakes, ponds, channels, gabion
structures and immediately adjacent transitional areas. The scope also required that the
treatment controls adhere to environmentally acceptable best management practices, and that
monthly and an annual report be provided to the City summarizing all activities and proposing
recommendations for the following year.
Two proposals were received and evaluated based on qualifications and reasonableness of
proposed costs. Biological Research Associates provided the most reasonable proposal.
The list of waterbodies included in this contract is attached in the form of the contract Bid
Schedule.
The cost for the annual contract is anticipated to be $85,400.00 with a 10% contingency, for a
total contract price not to exceed $93,940.00.
A first quarter amendment will increase the budget for other contractual services in the
PWA/Stormwater Management cost center (0419-01365) by $86,380.00 from the retained
earnings of the Stormwater Utility Fund. Sufficient budget is available in the Parks and
Recreation cost center, 0010-01867, Landscape/Contracts - Team, to fund their participation of
$7,560.00.
A copy of the contract is available for review at the Public Records and Legislative Services
office.
Originating: Engineering
Section Consent Agenda
Category: Agreements/Contracts - with cost
Public Hearing: No
Financial Information:
Type: Operating Expenditure
Bid Required? Yes
City Council
^~^~,^,.<^_~g<~!!,~~<<~~ver M~~..!!!<~<~~<~,~!!<!!!.,.~_...."
Bid Numbers: 04-0057-EN
In Current Year Budget?
No
Budget Adjustment:
Yes
Budget Adjustment Comments:
See summary section.
Current Year Cost:
$93,940.00
Appropriation Code(s)
0010-01867-530300-572-000
0419-01365-530300-539-000
Amount
$7,560.00
$86,380.00
Comments
Review Approval
Michael Quillen
Bryan Ruff
11-08-2004 15:44:00
11-12-2004 14:53:02
11-09-2004 07:39:32
11-12-2004 11:18:12
11-09-2004 11 :39:52
11-12-2004 13:39:57
Cvndie Goudeau
Tina Wilson
Garrv Brumback
Bill Horne
BID SCHEDULE - UNIT PRICES/PROJECT NUMBER: 04-0057 -EN
PROJECT: NUISANCE & EXOTIC VEGETATION CONTROL AND MAINTENANCE
ON CITY LAKES, PONDS, CHANNELS, GABION STRUCTURES AND IMMEDIATE
ADJACENT TRANSITIONAL AREAS
BID TABULATION TABLE
BID ITEM UNIT UNIT TOTAL
QUANTITY PRICE
1. Lake Hobart monthly 12
2. West Drive monthly 12
3. Lake Hibiscus monthly 12
4. Crest Lake monthly 12
5. Terrace Lake monthly 12
6. Westchester Lake monthly 12
7. Cliff Stephens Park monthly 12
8. Allen's Creek Park monthly 12
9. Lake Bellevue monthly 12
10. Lake Tangerine monthly 12
11. Frank Tack Park monthly 12
12. Cypress Bend Pond monthly 12
13. Byram Ditch monthly 12
14. D. D. Davis Park monthly 12
15. Linn Lake monthly 12
16. Florida Power (ROW) monthly 12
17. Rice Lake monthly 12
18. Allen's Creek monthly 12
19. Lake Julia monthly 12
20. Cooper's Bayou Park monthly 12
21. Hampton Road Pond monthly 12
22. AJcnrras Avenue Pond monthly 12
23. Sall's Lake monthly 12
BID ITEM UNIT QUANTITY UNIT TOTAL
PRICE
24. Lake Lucille monthly 12
25. Landmark Drive Area monthly 12
26. Lake Chautauqua Park monthly 12
27. Drew Street Pond montWy 12
28. Prospect Lake monthly 12
29. Additional Plantings 1,000 5
Aquatic Vegetation Replacement Square
Feet
Subtotal
10% Contingency
TOTAL COST
COMPANY NAME
ADDRESS
PHONE #
FAX #
BIDDER'S GRAND TOTAL $
(Numbers)
BIDDER'S GRAND TOTAL $
(Words)
THE BIDDER'S TOTAL ABOVE IS HIS TOTAL BID BASED ON HIS UNIT PRICES AND
THE LUMP SUM PRICES AND THE ESTIMATED QUANTITES REQUIRED. THIS FIQURE
IS FOR INFORMATION ONLY AT THE TIME OF OPENING BIDS. THE CITY WILL
MAKE THE TABULATION FROM THE UNIT PRICES AND LUMP SUM PRICE BID. IF
THERE IS AN ERROR IN THE TOTAL BY THE BIDDER, IT SHALL BE CHANGED AS
ONLY THE UNIT PRICES AND LUMP SUM PRICE SHALL GOVERN.
2
CITY OF CLEARWATER
Interdepartmental Correspondence
TO: Mayor and Council members
FROM: Cyndie Goudeau, City Clerk @
SUBJECT: Additional Follow up from November 29,2004 Work Session
COPIES: William B. Horne, City Manager
DATE: December 7,2004
(Agenda item number for Council Meeting of 12-2-2004)
Item #11.7 - Contract with Biological Research Associates for Nuisance & Exotic Control on
City Lakes, Ponds, etc. - a map showing the locations which are subject to this contract is
provided
NUISANCE & EXOTIC VEGETATION CONTROL & MAINTENANCE ON CITY
LAKES, PONDS, CHANNELS, GABION STRUCTURES & IMMEDIATE
ADJACENT TRANSITIONAL AREAS, PROJECT # 04-0057-EN
MAP# LOCATION
1. Lake Hobart
2. West Drive
3. Lake Hibiscus
4. Crest Lake
5. Terrace Lake
6. Westchester Lake
7. Cliff Stephens Park
8. Allen's Creek Park
9. Lake Bellevue
10. Lake Tangerine
11. Frank Tack Park
12. Cypress Bend Pond
13. Byram Ditch
14. D.O. Davis Park
15. Linn Lake
16. Florida Power (ROW)
17. Rice Lake
18. Allen's Creek
19. Lake Julia
20. Cooper's Bayou Park
21. Hampton Road Pond
22. Arcturas Avenue Pond
23. Sail's Lake
24. Lake Lucille
25. Landmark Drive Area
26. Lake Chautauqua Park
27. Drew Street Pond
28. Prospect Lake
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@@"""""'Q'Q~,,~g~~~~,!!~,~~,~v,~.r@~,!,!!IO-:!l,~~~~~'@<"~.,,'~
EN(y - 5.
11.8
Tracking Number: 977
Actual Date: 12/02/2004
Subject / Recommendation:
Approve supplemental work order #2, for King Engineering Associates, Inc., to perform
additional Engineering Design Services for the "Pumping Station #15 & #25 - Refurbishment"
project in the amount of $10,485.00 for a new work order total of $74,063.00, and authorize the
appropriate officials to execute same.
Summary:
The original work order for engineering designservices in the amount of $53,590.00 was
approved by the Commission on May 16, 2002.
Supplemental Work Order #1 in the amountof $9,988.00, which included the required
survey and design to install a new 8 inch force main and manifold it with the existing force main
in Countryside Boulevard from Pump Station #25, and the development of drawings and
specifications for demolition of the existing PS #25 building, including conducting a National
Emission Standards for Hazardous Air Pollutants (NESHAP) demolition asbestos survey and
lead-based paint screening, was approved the Commission on August 7, 2003.
This amendment is to provide for the design ofa new wet well to replace the existing one,
which was found to be leaking during video taping of its' interior condition.
Sufficient budget and revenue are available inthe 02 Water & Sewer Bond Construction
Fund, project, 343-96686, Pump Station Replacement, to fund this supplemental Work Order.
A copy of this supplemental Work Order isavailable for review in the Official Records and
Legislative Services office.
Originating: Engineering
Section Consent Agenda
Category: Agreements/Contracts - with cost
Number of Hard Copies attached: 0
Public Hearing: No
Financial Information:
~ Capital Expenditure
Bid Required? No
Bid Exceotions:
Other
Other Contract?
Existing Engineer-of-Record
In Current Year Budget?
Yes
1-
City Council
"""<<,,,,@~@~9~I~<<~<<!:!~~o~~"-:.<,.,~,,~,,!!,ora ~@~<~ m
Current Year Cost:
$10,485.00
For Fiscal Year:
10/01/2004 to 09/30/2005
Appropriation Code(s)
0343-96686-561300-535-000
Amount
$10,485.00
Comments
Review Approval
Glen Bahnick
Garry Brumback
11-05-2004 15: 14:27
11-08- 2004 11 :59:28
11-12-2004 13:39:05
11-05-2004 16:04:36
11-12-2004 14:53:48
11-08- 2004 11: 13:54
11-12-2004 11 :20:02
Brvan Ruff
Bill Horne
Michael Ouillen
Cvndie Goudeau
Tina Wilson
10ll'!l't)
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City of Clearwater
Public Works Administration
King Engineering Associates, Inc.
Work Order Initiation Form
Date: November 1, 2004
King Project Number: 2110-001-005
City Proj ect No.: 01-0060- UT
PROJECT TITLE:
Pump Stations No. 15 and 25 - Refurbishment.
Pump Station 15 Revised Desien Services
SCOPE OF WORK:
King shall provide additional design services in connection with revising the design approach
for the refurbishment of Pump Station 15.
Task 1
Design Phase
A. Revise the existing drawings and specifications to include demolition of
the existing wet well at Pump Station 15 and replacement of the wet
well with a City standard submersible pump station.
B. Obtain an additional boring in close proximity of pump station 15 and
to a depth approximately 5 feet below the bottom of the proposed new
wet well.
C. Develop Sketch & Legal descriptions for two (2) temporary
construction easements on the private properties adjacent to the existing
pump station easement. Easements to be obtained by the City.
D. Provide a landscaping plan at Pump Station 15 including the required
disposition and replacement of the existing oak tree based on the City's
direction.
E. Resubmit the revised drawings to the City Building Department for
reVIew.
F. Prepare and submit an application to revise the existing Florida
Department of Environment Protection (FDEP) permit for the project.
C:\DOCUME-l \MONA-I.KAU\WCALS-I \Temp\FYI\OO 140MXOID005V.DOC
GOALS:
A. Provide revised drawings and specifications for the required wet well
demolition and new pump station construction.
B. Obtain a deeper boring at the pump station site.
C. Develop Sketch & Legal descriptions for two (2) temporary construction
easements.
D. Develop a landscaping plan indicating the required disposition and
replacement of the existing oak tree.
E. Obtain a Building Permit based on the revised design.
F. Obtain a revision to the existing FDEP permit.
BUDGET:
The estimated budget amount for this Work Order is $10,485.00
SCHEDULE:
Work shall commence upon City approval of this Work Order Initiation. Ninety percent
(90%) complete documents will be submitted for City review within 4 weeks of approval.
Final documents will be provided to the City within 3 weeks of receipt of City Engineering,
Public Works and Building Department comments.
STAFF ASSIGNMENTS:
Principal
Project Mana2er
Project Engineer
Thomas M. O'Connor, P.E. (813) 880-8881 x186
Christopher F. Kuzler. P.E. (813) 880-8881 x140
John Pacifici, P.E. (813) 880-8881 x133
CORRESPONDENCEIREPORTING PROCEDURES:
ENGINEER's project correspondence shall be directed to Christopher F. Kuzler, P.E. All
City project correspondence shall be directed to Tom Fears with copies to others as may be
appropriate.
INVOICING/FUNDING PROCEDURES:
Invoices shall be submitted monthly to the City of Clearwater, Attn: Marty Pages, 100 S.
Myrtle Ave., #220, Clearwater, Florida 33756-5520 or P. O. Box 4748, Clearwater, Florida
33758-4748, for work performed. Invoices will be prepared monthly. Contingency services
C:\DOCUME-l \MONA-I.KAU\LOCALS-l \Temp\FYI\OO1 40MXOID005V.DOC
will be billed as incurred only after written authorization provided by the City to proceed
with those services.
A Not-to-Exceed fee of$10,485.00 has been established for this additional work.
City Invoicing Code: 0343-96686-561300-535-000-0000
SPECIAL CONSIDERATIONS:
None.
OA/OC
I hereby certify as a licensed Professional Engineer, registered in accordance with Florida
Statue 471 (481) that the above project site and/or construction plans, to the best of my
knowledge, information and belief will meet applicable design criteria specified by City
municipal ordinance, State and Federal established standards. I understand that it is my
responsibility as the project's Professional Engineer to perform a quality assurance review of
these submitted plans.
PREPARED BY:
Date
KING:
Christopher F. Kuzler, P.E. Date
Vice President
CITY:
Michael D. Quillen, PE
City Engineer
C:\DOCUME-l \MONA-l.KAU\LOCALS-1 \Temp\FYI\OO I40MXOID005V.DOC
.
!Dg
CITY OF CLEARWATER
PUBLIC WORKS ADMINISTRATION
WORK ORDER INITIATION FORM
ATTACHMENT "B"
DELIVERABLES
The design plans shall be produced on stable-based mylar or vellum material, 24" x 36" at a scale
of 1" = 20' unless approved otherwise. Upon completion the consultant shall deliver all drawing
files in digital format with all project data in Land Desktop (Land Desktop 2000 or later format,
including all associated dependent files. When LDD is not available, upon approval by the City Of
Clearwater Project Manager, a standard Ascn file can be delivered with all associated drawing and
dependent files. The ASCn file shall be a comma or space delimited containing code, point number,
northing, easting, elevation and description for each data point. Example below space delimited
ASCII file:
POINT # NORTHING
284 1361003.838
or comma delimited ASCII file:
284,1361003.838,264286.635,25.00, BCV (PNEZD)
An AutoCAD Release Fourteen (14) drawing or later drawing file shall be submitted. NOTE: If
approved deviation from Clearwater or Pinellas County CAD standards are used the consultant shall
include all necessary information to aid in manipulating the drawings including either PCP, CTB file
or pen schedule for plotting. The drawing file shall include only authorized fonts, shapes, line
types or other attributes contained in the standard AutoDesk, Inc. release. All block references
and references contained within the drawing file shall be included. Please address any questions
regarding format to Mr. Tom Mahony, at (727) 562-4762 or email address tmahony@clearwater-
flcom
EASTING
264286.635
ELEV
25.00
DESC
BeV
C:\DOCUME-l \MONA-l.KAU\LOCALS-I \Temp\FY1\OO 140MXOID005V.DOC
ENe:., . b
II. ()
City Council
~_,,__,,_,~~g~~~~:t~~~y~~~_ Memo!:~,~.~.~..~~w.,
Tracking Number: 988
Actual Date: 12/02/2004
Subject / Recommendation:
Approve the amendment of the Capital Improvement Program (CIP) to restructure current
Stormwater Utility funding by reducing project budgets by $3,049,990 of FY06 revenue bond
and $75,000 of storm water operating revenues, for a total budget decrease of $3,124,990, and
increasing project budgets by $863,000 of grant revenue from the Southwest Florida Water
Management District (SWFWMD)and $16,000 of lease purchase revenue for a total budget
increase of $879,000, resulting in a net budget decrease of $2,245,990, and that the
appropriate officials be authorized to execute same.
Summary:
In 2001 the City Commission approved a series of stormwater fee rate increases over a five-year
period beginning January 1, 2002 to provide funding for the operation and capital improvement
program of the Stormwater Utility Fund. The increases were based upon the 2001 rate study
prepared by Burton and Associates.
On August 5, 2004 (item 10.1) the City Council approved additional 3% rate increases to be
effective 10/1/06, 10/1/07 and 10/1/08 to provide funding for operations, the CIP projects and
debt service. The increases were based upon the 2004 Burton and Associates rate study.
The 2004 rate study projected the need for $1,898,590 of stormwater revenue bond proceeds to
fund projects for FY2005 and $5,324,710 for FY2006. Resolution 04-37 was passed on
December 2, 2004; establishing the City's intent to reimburse certain stormwater project costs
incurred with future tax-exempt financing. The projects identified with 2006 revenue bonds as a
funding source were included in the project list associated with Resolution 04-37.
For 2005 the rate study included the receipt of SWFWMD grant revenue of $3,000,000 for
construction of the Kapok Flood Resolution project. The budget increase for this grant funding
was included in the FY 2004 third quarter budget amendments approved by the Council on
October 7,2004 (item 10.19). With the budget increase of $3,000,000 of grant revenue, other
revenue sources previously used to fund the Kapok Flood Resolution project became available to
fund other projects. As part of this restructuring 02 and 04 Storm water Revenue Bond proceeds
totaling $3,000,000 will be transferred to other projects as planned for in the 2004 rate study
update.
The lease purchase budget is for a pick-up truck for Storm water Maintenance, 0419-02090. The
lease purchase of this vehicle was included in the 2004 rate study update and the budget for the
principal and interest payments are included in the 2005 operating budget approved by the
Counci
I in September.
The 06 Stormwater Bond Construction Fund (379) was established for the projects to be funded
with the 2006 Stormwater Revenue Bond proceeds with the individual project budgets totaling
$7,223,300.
The attached schedule lists the stormwater projects approved in the 2005 CIP budget and the
amendments necessary to agree the project budgets with the funding need determined by the
2004 rate study.
Originating: Engineering
City Council
, Agenm~~@,"~~~~r~,~"~,~~rCl~~"~~~Mm @'<
Section Consent Agenda
Category: Agreements/Contracts - with cost
Financial Information:
~ Capital Expenditure
Budget Adiustment:
Yes
Budget Adjustment Comments:
See summary section and attachment.
Review Approval
Michael Quillen
Bryan Ruff
11-09-2004 14: 12:55
11-22-2004 11:03:35
11-10-2004 08:48:39
11-12-2004 13:49:56
11-10-2004 11 :46: 17
11-22-2004 10: 19:04
Cvndie Goudeau
Tina Wilson
Garrv Brumback
Bill Horne
CITY OF CLEARWATER
Stormwater Utility Fund. 419
FY05 Project Restructuring
Project
Per Original
05 CIP Budaet
Amendment
Incr/(Decr)
Description
Fund
Number
2005 Stormwater Projects with 02 Bond Funding
Storm Pipe System Improvements 377
Kapok Flood Resolution 377
Alligator Creek Drainage Improvements 377
Total Bond Funded Projects per CIP Program Budget
$
$
1,000,000.00 $
(1,640,000.00)
640,000.00
96124
96141
96154
As
Amended
1,000,000.00
(1,640,000.00)
640,000.00
$
$
$
2005 Stormwater Projects with 04 Bond Funding
Stevenson Creek Estuary Restoration 357
Kapok Flood Resolution 357
Stevenson Creek Improvement Projects 357
Transfer Yard Upgrade 357
Total Bond Funded Projects per CIP Program Budget
$
$
96129
96141
96144
96158
1,000,000.00 $ 1,000,000.00
(1,360,000.00) (1,360,000.00)
120,000.00 120,000.00
240,000.00 240,000.00
$
$
$
2005 Stormwater Projects with 06 Bond Funding
Storm Pipe System Improvements 379 96124 $ 1,000,000.00 $ (1,000,000.00) $
Stevenson Creek Estuary Restoration 379 96129 1,000,000.00 (1,000,000.00)
Stevenson Creek Improvement Projects 379 96144 823,590.00 (823,590.00)
Alligator Creek Drainage Improvements 379 96154 2,124,990.00 (226,400.00) 1,898,590.00
Total Bond Funded Projects per CIP Program Budget $ 4,948,580.00 $ (3,049,990.00) $ 1,898,590.00
2005 Stormwater Operating Revenue Funded Projects
Storm Pipe System Improvements 315 96124 $ 1,000,000.00 $ (1,000,000.00) $
Stevenson Creek Improvement Projects 315 96144 125,000.00 125,000.00
Storm System Expansion 315 96149 76,410.00 923,590.00 1,000,000.00
Alligator Creek Drainage Improvements 315 96154 116,410.00 116,410.00
Transfer Yard Upgrade 315 96158 240,000.00 (240,000.00)
Public Works Infrastructure Management System 315 96521 67,000.00 67,000.00
$ 1,383,410.00 $ (75,000.00) $ 1,308,410.00
2005 Stormwater Projects - Grant Funding
Kapok Flood Resolution 315 96141 $ $ 3,000,000.00 $ 3,000,000.00
Stevenson Creek Improvement Projects 315 96144 863,000.00 863,000.00
$ $ 3,863,000.00 $ 3,863,000.00
2005 Stormwater Projects - Lease Purchase Funding
Pick-up Truck - Stormwater 316 961XX $ $ 16,000.00 $ 16,000.00
Total All 2005 Stormwater Projects
$ 6,331,990.00 $ 754,010.00 $ 7,086,000.00
Stormwater Projects Per FY2004 Final Rate Study Report (Appendix, Fig 3, Page 19)
Storm Pipe System Improvements
Stevenson Creek Estuary Restoration
Stevenson Creek Improvement Projects
Storm System Expansion
Alligator Creek Implementation Projects-Phase II
Transfer Yard Upgrade
Public Works Infrastructure Management System
Subtotal Non-UP Projects to Agree with R1S
Pick-up Truck - Stormwater
96124
96129
96144
96149
96154
96158
96521
961XX
00154VXOID005V.XLS/Proj Amendments
$
1,000,000
1,000,000
1,108,000
1,000,000
2,655,000
240,000
67,000
7,070,000
16,000
7,086,000
$
$
11/22/2004
05 _ \
j'. 10
City Council
.c_~~~.~~.~.....~.Qen daJ:;~.!.~.!:.. M e~~!:~..!!.~~~",~"""w",
Tracking Number: 986
Actual Date: 12/02/2004
Subject / Recommendation:
Approve Change Order No.1 to Trimax Residuals of Edmonton, Alberta, for the Biosolids
Treatment Implementation Digester Cleaning Contract (03-0022-UT)increasing the contract
amount by $518,731.91, for a new contract total of $998,508.55 ,and approve a time extension
of 90 days for the completion of this work and authorize the approprpiate officials to execute
same.
Summary:
This Contract was previously approved at the October 21, 2004 Council Meeting in the amount of
$479,776.64. On November 1, 2004 the City and Trimax representatives negotiated and agreed
to the value and conditions of Change Order No. 1.
Change Order No.1 is predicated on revisions to the project criteria by the City in order to
facilitate the economical cleaning of the Marshall Street digester.
These revisions improve the logistics for the cleaning of the Marshall Street digester and enable
Trimax to recalculate and reduce the cost of this project from the original competitive bid. The
scope of work for this change order is the same as for the Northeast Plant.
The contract time for the Marshall Street Digester shall be 90 days. Trimax requests those
unused contract days from the Northeast digester project be allow to supplement the Marshall
Street digester project schedule before liquidated damages are applied as the original contract
allowed 180 days for both digesters.
First quarter amendments will transfer budget and sewer revenue of $15,673.18 from Capital
Improvement Program project 315-96658 Northeast Improvements, and $503,058.73 from
project 315-96606,THM Control, for a total transfer of $518,731.91 to 315-96611, Bio-Solids
Treatment to fund this contract.
Originating: Public Services
Section Consent Agenda
Category: Construction Contracts - Public Works Originating
Public Hearing: No
Financial Information:
~ Capital Expenditure
Bid Required? No
Bid Exceptions:
Other
Other Contract?
Change Order #1
ater
City Council
m,~,g,,!n d~J;~,~~er M em,~,!:.!ln~!"!-!,!!!,.w.....m."mw"'m"w'_"mm'm'm.'m
Budget Adjustment:
Yes
Budget Adjustment Comments:
See summary section.
Appropriation Code(s)
0315-96611-563800-000-000
Amount
$518,731.91
Comments
Review Approval
Garv Johnson
Garry Brumback
11-10-2004 16:06:40
11-15-2004 12:22:29
11-19-2004 12:50:03
11-08-2004 17:03:39
11-22-2004 09:14:36
11-12-2004 07:35:21
11-17-2004 12:23:55
Brvan Ruff
Bill Horne
Georae McKibben
Cvndie Goudeau
Tina Wilson
CHANGE ORDER #1
DATE:
November 5. 2004
PROJECT: Blosolids Treatment Implementation Digester Cleaning PROJECT NUMBER:
03-0022-UT
PO REfERENCE NO.:
CONTRACTOR:
Trlmax Residuals
9440 - 60th Avenue
Edmonton, Alberta T6E OCl
DATE OF CONTRACT:
CODE: 0343-96611-563800-535-000-0000 CA}
0315-96611-563800-535-000-0000CB}
SCOPE Of CHANGE:
THIS CHANGE ORDER ACCEPTS REVISIONS TO THE CONTRACT
See attached sheet for additional it~m. Approve d tirne extension of ninety (90) additional days for the
completion of this work.
STATEMENT OF CONTRACT AMOUNT
ACCEPTED BY:
ORIGINAL CONTRACT AMOUN1
CHANGE ORDER #1
NEW CONTRACT AMOUNT
$479,776.64
$518.731.91
$998,508.55
Trlmax Residuals
By: (Seal
Blake Dermott, General Manager
Date:
Brian J. Aungst.
Mayor-Commissioner
Bryan D. Ruff,
Assistant City Attorney
Witnesses:
ATTEST:
Cynthia E. Goudeau,
City Clerk
Date:
CITY OF CLEARWATER, In
PINELLAS COUNTY, FLORIDA
Recommended By:
City of Clearwater
William B. Horne. II
City Manager
Gary A. Johnson. CGC
Public Services Director
Michael D. Quillen, P.E.
City Engineer
Page 2 of 2
Change Order #1
Blosollds Treatment Implementation Digester Cleaning
Additional Items - Code - 0315-96611-563800-535-000-0000 (B)
ITE
M DESCRIPTION QUANTITY UNIT COST TOTAL COST
B -Marshall Street APCF
Mobilization /
B1 Demobilization LS $ 18,864.87 $18,864.87
Groundwater Table
B2 Dewatering LS $ 22,876.71 $22,876.71
Cleaning of Marshall
Street 90' Digester (unit
price will be applied to
quantities then
estimated base
B3 quantities) 951,800 Gal $ 0.4516 $429,832.88
Sub-total of Items B1-B3 $471,574.46
10% Contingency (of
B4 above total) LS $ 47,157.45 $47,157.45
$518,731.91
Previous Contract Amount $ 479,776.64
Total this change order = S 518,731.91
NEW TOTAL CONTRACT COST = $ 998,508.55
ORLS -- \
City Council
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II. I \
Tracking Number: 1,000
Actual Date: 12/02/2004
Subject / Recommendation:
Appoint one member to the Brownfields Advisory Board with the term expiring on December 31,
2008.
Summary:
BOARD: Brownfields Advisory Board
TERM: 4 years
APPOINTED BY: City Council
FINANCIAL DISCLOSURE: Not Required
RESIDENCY REQUIREMENT: **
MEMBERS: 9
CHAIRPERSON: Brian Flaherty
MEETING DATE: As Called
PLACE: Determined when called
APPTS. NEEDED: 1
STAFF LIAISON: Diane Hufford
DATE APPTS TO BE MADE: 12/02/2004
SPECIAL QUALIFICATIONS: ** Three members will be Clearwater residents who live within or
adjacent to the Brownfields Area; Three members will be owners or representatives of
businesses operating in the Brownfields area and need not be residents of Clearwater; Three
members will be representatives of federal or state agencies or local governments involved with
the Brownfields remediation process within Pinellas County and need not be Clearwater residents
THE FOllOWING ADVISORY BOARD MEMBER(S) HAVE TERMS WHICH EXPIRE AND NOW
REQUIRE EITHER REAPPOINTMENT FOR A NEW TERM OR REPLACEMENT BY A NEW APPOINTEE.
1. Thomas Noble - 5265 East Bay Dr., Unit 1022, 33764 - Original Appointment 6/4/98
Agency or Government Representative
Interest inReappointment: NqResigned)
THE FOllOWING NAMES ARE BEING SUBMITTED FOR CONSIDERATION TO FIll THE ABOVE
VACANCIES:
Agency or Government Representative:
1. Randy Deshazo - (No home address given on application) - Planner
Office Address: 4000 Gateway Centre Blvd, Suite 100, Pinellas Park, Fl 33781
Zip codes of current members:
3 at 33755
1 at 33761
1 at 33764
2 at 34683 (Palm Harbor)
1 at 34698
Originating: Official Rec and legislative Svc
Section Consent Agenda
City Council
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Category: Other
Number of Hard Copies attached: 0
Public Hearinq: No
Financial Information:
Type: Other
Review Approval
Cvndie Goudeau
11-22-2004 09: 13: 19
'1"'1'"'_'-'
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'''''~'''''iIo.i c:
CITY OF CLEARWATER - APPLICATION FOR ADVISORY BOARfbOJ 1 '{ 2004
Name: Randy Deshazo
. Home Address:
O:~::~~;:~','::,';:': .:.:,~:.;{[.::; AND
Li::\:""..i(..,'.l,t L \i.'i'''' "::'-'~.:. ':".'~ ,
. . ... 'F. '/"'_ .~~ L.: EPr
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Office Address:
4000 Gateway Centre Blvd Suite 100
Pinellas Park Zio 33781
Telephone: Telephone: 727-570-5151 x 31
How long a resident of Clearwater?- N/A, Local Government representative
Occupation: Planner Employer: Tampa Bay Regional Planning.Council~
Field of Education: Other Work Experience:
BA Universitv of Texas at Austin Indian River County, FI, Long-Range Planning_
MA Universitv of New Orleans (Political Science)
MUPUniversitv of Michiaan (Urban Plannina)
If retired, former occupation:
Community Activities:
Other Interests:
Board Service (current and past); Board Preference:
Served as staff to Council. staff to EDC. Brownfields Advisory Board
Plannina and Zonina Commission. Board of
Countv Commissioners. various task forces
Additio~al"Col11ments: I am looking forward to serving on your, Brownfields board.
Date: 11,1 I~/ 0 l'
See attached list for boards that require financial disclosure at time of appointment. Please return
this application and board questionnaire to the Official Records & Legislative Services Department,
P. O. Box 4748, Clearwater, FL 33758-4748, or drop off your application at City Hall, 2nd Floor, 112
S. Osceola Avenue.
BOARD QUESTIONNAIRE
1. What is your understanding of the board's duties and responsibilities?
The Board's purpose is to provide a public forum for public participation and comments
on the redevelopment of Brownfield areas in Clearwater. Board members Reviewand
prOVide recommendations to the Commission regarding site rehabilitation
agreements
2. Have you ever observed a board meeting either in person or onC-View, the
City's TV station? .
Yes, as a professional planner with several years experience I have had ample
opportunity to observe board meetings.
3. What. background and/or qualifications do you have that you feel would qUI.lify
you to serve on this Board?
As a land use planner in a former position and as a planner engaged in economic
development activities throughout the Tampa Bay region, J have gained experience in
many aspects of development-the economic development perspective, comprehensive
planning and some site plan review.
4. Why do you want to serve on this Board?
I was invited to serve by City of Clearwater staff. Since brownfields is a subject that is
personally interesting to me and since brownfield redevelopment is related to economic
development I am sure that serving on the Board would be mutually beneficial.
Name:. Randy Deshazo
Board Name: Brownfields Advisory Board
Pu R \ - ZJ\
Purchasing Memorandum
City Commission
12/02/2004
Agenda Number: 3193
il.,IZ?\.I/IS
1 A2enda Item No: 11.1
Type: Purchase
Quantity: 30
Requesting Dept: Solid Waste/General Services
Using Dept: Solid Waste/General Services
Bid Number or
Code Exception: 2.564 (1)(b) - Sole source
Vendorlnfo:
Description:
Comments:
Amount:
$ 118,237.50
MIA-Com Private Radio Systems, Lynchburg,
Virginia
MIA-COM Private Radio Systems - 30 D28MPX Mobile Provoice Orion 806-870MHZ, 35W radios,
accessories and installation kits and D2CP5S Control Unit Systems with accessories at a cost of
$118,237.50 and authorize lease purchase funding.
MIA-COM is the standardized radio utilized throughout the City by the Police Department in cruisers and
the Police Control Room.
This standardized equipment was selected through the request for proposal process.
Lease purchase financing.
Appropriation Code(s):
0316-94232-552500-519-000
Comments:
Program Code
Debt Service: Prin - 0566-06620-571300-582-000-0000
Int - 0566-06620-572300-519-000-0000
2 Agenda Item No: 11.2
Type: Purchase
Quantity:
Requesting Dept: Solid Waste/General Services
Using Dept: Solid Waste/General Services
Bid Number or
Code Exception:
Vendorlnfo:
Description:
2.564 (l)(d) - F-DOT Contract P0384
Southern Sewer Equipment, Fort Pierce, Florida
Southern Sewer Equipment - 2005 Sterling L 7501 truck chassis with Vac-Con sewer cleaner body at a
cost of $190, 114.50 and authorize lease purchase financing.
Comments:
Amount:
$ 190,114.50
Purchasing Memorandum
City Commission
12/02/2004
Agenda Number: 3193
In-kind replacement for 01903.
Lease purchase financing.
Piggyback Florida DOT Contract #P0384.
To be utilized throughout the City by Public UtilitieslWastewater
Appropriation Code(s):
0316-94234-564100-519-000
Comments:
Project code. 0316-94234-564100-519-000-0000
Debt service: Principal 0566-06612-571300-582
Interest 0566-06612-572300-519
3 Agenda Item No: 11.4
Type: Purchase contract
Quantity:
Requesting Dept: Solid Waste/General Services
Using Dept: Solid Waste/General Services
Bid Number or
Code Exception:
Vendorlnfo:
Description:
Comments:
Amount:
$ 1,400,000.00
2.564 (l)(d) - Pin. Cty. Contract
Petroleum Traders Corp., Fort Wayne, Indiana
Petroleum Traders Corp. - Vehicle fuel, unleaded gasoline and diesel, during the period December 17,
2004 through December 16, 2005 at a cost not to exceed $1,400,000.
Piggyback Pinellas County Purchasing Cooperative Bid 034-81-B.
To be utilized throughout the City by all departments operating vehicles or equipment.
Appropriation Code(s):
0566-06611-550500-519-000
Comments:
None
Purchasing Memorandum
City Commission
12/02/2004
Agenda Number: 3193
4 A~enda Item No: 11.3
Type:
Quantity:
Requesting Dept:
Using Dept:
Bid Number or
Code Exception:
VendorInfo:
Description:
Comments:
Amount:
$ 140,000.00
Service contract
Solid Waste/General Services
Solid Waste/General Services
2.564 (l)(k) 2 - Emergency
Terra Excavating Inc., Largo, Florida
Terra Excavating Inc. - Increase the City Manager's award from $98,000 to $140,000 for emergency pick
up and removal of storm debris.
Dump trucks and operators were contracted during the emergency period following recent hurricanes to
assist in removal of storm related debris.
Debris removal and disposal is complete.
Appropriation Code(s):
0181-99927-544100-529-000
Comments:
Total award. This is an increase of $42,000 over City Mgr. award.
(l)R - \
12. \
City Council
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Trackinq Number: 895
Actual Date: 12/02/2004
Subject I Recommendation:
Approve amendment to Chapter 33, Section 33.067 of the Code of Ordinances amending defined
areas for no internal combustion motors on Sand Key and pass on first reading Ordinance No.
7352-04.
Summary:
The City Council passed ordinance 6878-01 creating a slow speed minimum wake zone, south of
Clearwater Pass along Sand Key Beach, adjacent to the Clearwater Community Sailing Center
wake zone on November 1, 2001. The State approved the zone and buoys were installed
delineating the zone in May 2002.
There have become growing concerns for the safety of swimmers, fishermen, and sailing class
students at the Clearwater Community Sailing Center and on the adjacent beach, due to power
driven boats. We feel converting the existing slow speed minimum wake zone to a more
restrictive non combustion engine zone, will minimize accidents, while allowing the existing uses
of the Sailing Center and adjacent beach.
A stipulation of the State for use of their submerged land to build the Sailing Center docks is
that no motorized vessels be permitted use of the facility. An exception to this rule is the chase
boats accompanying the students taking sailing lessons, for their safety. This amendment would
essentially extend this restriction to the adjacent beach and keep combustion engine boats
further away from inexperienced sailors, swimmers, and fishermen, while providing enforcement
authority an ordinance to keep them out of the zone.
Initially the zone will be marked with buoys.
Originating: Marine and Aviation
Section Other items on City Manager Reports
Category: Agreements/Contracts - without cost
Number of Hard Copies attached: 1
Public Hearing: No
Financial Information:
Review Approval
Bill Morris
10-06- 2004
09:28:58
Garrv Brumback
11-12-2004
13:48: 19
Brvan Ruff
10-06-2004
12:00: 12
Bill Horne
11-22-2004
23: 19:29
Cyndie Goudeau
City Council
,~..........~!!.~.~..~~.~.~~~~~~~~~.~.~~~......
11-23-2004 08:20:56
ORDINANCE NO. 7352-04
AN ORDINANCE OF THE CITY OF CLEARWATER, FLORIDA,
AMENDING CHAPTER 33, SECTION 33.067, CODE OF
ORDINANCES, RELATING TO WATERWAYS AND VESSELS,
TO AMEND DEFINED AREAS FOR NO INTERNAL
COMBUSTION MOTORS ON SAND KEY; PROVIDING AN
EFFECTIVE DATE.
WHEREAS, there have become growing concerns for the safety of swimmers,
fishermen, and sailing class students at the Clearwater Community Sailing Center and on
the beach adjacent to it; and
WHEREAS, the existing slow down - minimum wake zone does not restrict vessels
with engines from accessing this section of beach; now, therefore,
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
CLEARWATER, FLORIDA:
Section 1. Section 33.067 is amended to read:
Sec. 33.067. Same-Areas defined.
(8) No Internal Combustion Motors Zone Stow dovlR minimum wako
Z:eRe; Clearwater Community Sailing Center and Adiacent Sand Kev Beach. All
waters in the following described area are designated as a no internal combustion
motors zone slow down minimum '....3ke zone: Begin at the designated wake zone on
the southeast corner under the Clearwater Pass Bridge, at marker buoy 11, located at
27degrees 57 minutes 33.6 32J. seconds north, 82 degrees 49 minutes 18.54 ~
seconds west, and continue in a southeast direction to a point approximately 100 yards
offshore, then in a southerly direction approximately 800 -700 yards, more or less, to a
point marked by a buoy at 27 degrees 57 minutes 09 49 seconds north, 82 degrees 49
minutes 49 a4 seconds west, then in a westerly direction 100 yards, more or less, to a
point approximately on the mean high-water line at the Clearwater Community Sailing
Center, located at 27 degrees 57 minutes 55 4-7 seconds north, 82 degrees 49 minutes
49 ~ seconds west, then in a northerly direction along the mean high-water line, then
to the point of beginning at marker buoy 11.
Section 2. This ordinance shall take effect immediately upon adoption.
Ordinance No. 7352-04
PASSED ON FIRST READING
PASSED ON SECOND AND FINAL
READING AND ADOPTED
Approved as to form:
Bryan D. Ruff
Assistant City Attorney
Brian J. Aungst
Mayor
Attest:
Cynthia E. Goudeau
City Clerk
2
Ordinance No. 7352-04
MR- f
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City Council
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Tracking Number: 907
Actual Date: 12/02/2004
Subject / Recommendation:
Adopt Resolution #04-34 approving PGP Gas Supply Agreement No. 1 with Florida Gas Utility
and necessary documents to accomplish same and authorize the appropriate officials to execute
same.
Summary:
The purpose of this agenda item is to approve an agreement with Florida Gas Utility (FGU),
which will allow Clearwater to participate in the purchase of long-term natural gas supplies from
FGU, which are projected to be at a discounted price relative to the future gas market.
FGU is currently working on executing a Gas Production Sharing Agreement with Public Gas
Partners, Inc. (PGP), a Georgia non-profit corporation, which is the parent company that will
initially consist of eight (8) intergovernmental agencies serving about 130 public gas systems,
such as Clearwater Gas, throughout the Southeastern United States. The Gas Production
Sharing Agreement will be executed by FGU no later than November 2004.
The objective of PGP is to acquire and have a working interest in a multitude of gas wells
selected throughout the United States. Once the gas wells are obtained by PGP and flowing gas,
FGU will then issue debt in the form of bonds to pay for associated costs to produce and deliver
the gas from the wells, to the transmission pipelines, and then to Clearwater Gas System (CGS)
as well as other members of FGU, in proportion to our subscribed nominated quantities.
On 8/23/04, FGU's Board of Directors adopted Resolution 2004-02, which authorizes FGU to
approve the Articles & Bylaws of PGP and execute the Gas Production Sharing Agreement with
PGP. The Gas Production Sharing Agreement obligates FGU to participate in the acquisition of
gas wells acquired by PGP. In turn, FGU contracts out the gas supply from PGP to its members
and other contracting municipal agencies.
CGS.2.
/2.Z.
ater
City Council
~"_,,._......~~~n~!@~9~~r...~~.~.~ra,.nd U!!!
Clearwater's purpose for executing the PGP Gas Supply Agreement No. 1 is to better control our
cost of gas supply in a rising and volatile energy market. Currently wholesale gas prices are
averaging $7.00 - $8.00 per dekatherm (million Btus). The objective of acquiring gas wells is to
remove the extra costs associated with purchasing gas supply through a gas supplier and/or
marketer. PGP will only acquire gas wells that have a projected savings of at least $0.50 per
dekatherm relative to the projected gas market. These savings will be projected over the life of
the wells.
FGU is a not for profit joint action agency made up of 23 Florida cities including Clearwater.
Clearwater currently has an All Requirements Agreement with FGU that was signed on 2/15/02.
This existing All Requirements Agreement obligates Clearwater to purchase 100% of our gas
supply through FGU. The PGP Gas Supply Agreement No.1 will provide a portion of our gas
supply needs under our All Requirement Agreement.
Resolution #04-34 authorizes the City Manager, the Gas System Managing Director, or the Gas
Program Coordinator/Gas Supply & Technology Engineer to issue directives to FGU as Project
Participant for the purpose of hedging our PGP gas supply, just as under our All Requirements
Agreement.
We are proposing that Clearwater become a participant in the PGP Project #1 with nominated
gas volumes of 500 dekatherms/day in the summer months and 1500 dekatherms/day in the
winter months, or an average of 1000 dekatherms/day annually, which is approximately 15% of
our annual throughput. Once all PGP participants have made their PGP Project #1 nominations,
Clearwater would be entitled to a proportionate share of the gas supply flow and be responsible
for a proportionate share of the PGP Project #1 costs. We estimate that this will be about 1.5%
of the overall PGP Project #1.
Oriqinatinq: Gas System
Section Other items on City Manager Reports
Category: Agreements/Contracts - without cost
Public Hearing: No
Financial Information:
Type: Operating Expenditure
Bid Required? No
Bid Exceptions:
Sole Source
In Current Year Budget?
Yes
Budget Adjustment:
No
City Council
~~~""~,~gen~i!<._<~over ~~_~!"o !.~~!'!"!!..~~ITI.<<,.ww..
Current Year Cost:
$15,000.00
For Fiscal Year:
10/01/2004 to 09/30/2005
Appropriation Code(s) Amount
0423020785313005320000000 $15,000.00
Comments
Review Approval
John Scott - Gas
Laura Lipowski
10-08-2004 14:08:46
11-16-2004 13:40:00
11-17-2004 13:20:01
10-14-2004 14:59:27
11-15-2004 16:53:21
11-22-2004 10:20: 15
11-08-2004 17:34:43
11-16-2004 13:11:51
11-22-2004 11:18:15
Maraie Simmons
Laura Lipowski
Chuck Warrinaton
Laura Lioowski
Garrv Brumback
Chuck Warrinqton
Bill Horne
l\l.' (r: S
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RESOLUTION NO. 04-34
A RESOLUTION OF THE CITY OF CLEARWATER, FLORIDA,
APPROVING THE FORM OF PGP GAS SUPPLY AGREEMENT NO.1
FOR THE PURCHASE AND SALE OF GAS AND OTHER SERVICES
AND AUTHORIZING FLORIDA GAS UTILITY TO NEGOTIATE THE
TERMS OF RELATED FINANCIAL PRODUCTS AND FINANCIAL
INSTRUMENTS RELATED TO THE PURCHASE OR PRICING OF GAS
IN ACCORDANCE WITH THE GAS SUPPLY AGREEMENT NO.1, AT
THE DIRECTION OF THE CITY'S AUTHORIZED REPRESENTATIVE AS
PROVIDED FOR HEREIN; AUTHORIZING THE EXECUTION AND
DELIVERY OF THE PGP GAS SUPPLY AGREEMENT SUBJECT TO
CONDITIONS AS SPECIFIED HEREIN; AUTHORIZING FLORIDA GAS
UTILITY TO PLEDGE THE CITY'S PAYMENT OBLIGATIONS
THEREUNDER TO SECURE THE PAYMENT OF COSTS OF PUBLIC
GAS PARTNERS, INC., AS PROVIDED IN ITS NATURAL GAS
PRODUCTION SHARING AGREEMENT, OR OTHER OBLIGATIONS
REQUIRED UNDER SUCH AGREEMENT, AND BONDS OR OTHER
OBLIGATIONS ISSUED BY FLORIDA GAS UTILITY; PROVIDING FOR
THE MAKING OF PAYMENTS PURSUANT TO SAID PGP GAS SUPPLY
AGREEMENT, AND MAKING CERTAIN COVENANTS IN
CONJUNCTION WITH SAID PAYMENTS; PROVIDING FOR THE
MAKING OF PAYMENTS PURSUANT TO SAID FINANCIAL
INSTRUMENTS AND MAKING CERTAIN COVENANTS IN
CONJUNCTION WITH SAID PAYMENTS; PROVIDING FOR THE
APPOINTMENT OF THE PROJECT PARTICIPANT REPRESENTATIVE;
PROVIDING CERTAIN OTHER AUTHORIZATIONS; PROVIDING AN
EFFECTIVE DATE; AND PROVIDING CERTAIN OTHER DETAILS
WITH RESPECT THERETO.
WHEREAS, the City of Clearwater, Florida ("Project Participant"), in its capacity
as a Member of Florida Gas Utility ("FGU") wishes to purchase a supply of natural gas
from FGU and wishes to authorize certain financial products and services relating to the
pricing and/or financing thereof, all as contemplated in the PGP Gas Supply Agreement
No.1, a proposed form of which is attached hereto as Exhibit A (the "PGP Gas Supply
Agreement"); and
WHEREAS, in order to provide the benefits of the gas supply and other services to
Project Participant and other Project Participants of FGU and in order to assure the
flexibility in pricing and other services provided by the PGP Gas Supply Agreement, it is
necessary for Project Participant to authorize and approve the form of the PGP Gas
Supply Agreement, to be revised only as to a Schedule of Project Participants,
determining the definitive number of Participants and their allocated share of risk, and
such other minor revisions as may arise, to be approved by the officers of Project
Participant executing such Agreement, which duty and responsibility is delegated hereby
to such officers; and
WHEREAS, in order to take advantage of certain Financial Products as provided
in Financial Instruments and the issuance of Bonds as described in the PGP Gas Supply
Agreement, it is necessary for Project Participant to authorize the Project Participant
Representative to give the Directives provided for in the PGP Gas Supply Agreement,
binding Project Participant for the obligations set forth therein; and
WHEREAS, it is necessary for the governing body of each Project Participant to (a)
approve the form of the PGP Gas Supply Agreement and authorize its execution and
delivery by its authorized representatives, and (b) to designate the volume of Gas that it
is committed to receive (referred to in the PGP Gas Supply Agreement as its Nominated
Quantity and expressed as a percentage of the Nominated Quantities by all other Project
Participants and referred to as its "Gas Entitlement Share"), (i) which, as provided
therein, will require the purchase of the gas so nominated by each Project Participant on
a take or pay basis; (ii) which will require that in the event of a default in the purchase of
gas or other failure to pay by another Project Participant or a Member under the Natural
Gas Production Sharing Agreement for Gas Supply Pool No. 1 attached as Exhibit D to
the PGP Gas Supply Agreement ("Production Agreement"), a Project Participant will be
required to "step.up" and be obligated to pay such additional amount, up to 25% of its
Gas Entitlement Share under the PGP Gas Supply Agreement, and up to 25% of FGU's
Participation Share with respect to the Production Agreement; (iii) which will authorize
the participation in derivatives under the Production Agreement, of which any
termination payment will be considered an item of Cost to be passed through as
operating expenses, to hedge the cost of gas, in the order of priority and as otherwise
provided in the Production Agreement; and (iv) which will provide for a broad definition
of Costs to include capital expenditures, which will be passed through as operating
expenses.
WHEREAS, Project Participant desires to take certain other actions and make
certain authorizations and delegations of authority with respect to the Agreements
BE IT RESOLVED BY THE CITY COUNCIL OF CLEARWATER, FLORIDA;
Section 1. Authoritv. This Resolution is adopted pursuant to the Constitution and
laws of the State of Florida, including, particularly, Section 163.01, Florida Statutes, 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
Agreements or in the Production Agreement, as the case may be.
Section 3. Findings. It is hereby ascertained, determined and declared that
Project Participant is authorized under the authority cited above to approve the form of
the Agreements in the manner herein provided.
2
Section 4. Approval of Form of PGP Gas Supplv Ae-reement and Other
Ae-reements Authorized Thereby. The PGP Gas Supply Agreement in substantially the
form attached hereto as Exhibit A, is hereby approved, to be revised only as to a Schedule
of Project Participants, determining the definitive number of Participants and their
allocated share of risk, and such other minor revisions as may arise, to be approved and
made to such form of the PGP Gas Supply Agreement by the officers designated below
executing the same in the manner consistent with the provisions of this Resolution. The
duty and responsibility for approving modifications or amendments to the PGP Gas
Supply Agreement and negotiating and approving of any Financial Instruments
described therein and in this Resolution (the "Agreements") may be approved by the
Clearwater City Councilor delegated to the Project Participant Representative(s)
designated in paragraph 8 below, as permitted by the City of Clearwater Code of
Ordinances. . Such officers are hereby authorized to deliver the Agreements, as so
negotiated, modified and amended, as executed, to FGU for its consideration and
execution.
Section 5. Particular Covenants.
A. The payments required to be made by Project Participant pursuant to the
PGP Gas Supply Agreement shall constitute an obligation of Project Participant payable
as an operating expense of Project Participant's System ("System"), to the extent legally
permissible, solely from the revenues and other available funds of Project Participant's
System, and such payments shall be made as provided in the PGP Gas Supply
Agreement and subject to the provisions thereof, to the extent such payments would
constitute operating expenses under Project Participant's indentures, bond resolutions or
other bond documents entered into in connection with the financing of Project
Participant's System.
B. If such payments are not treated as operating expenses, such payments
shall be made by such Project Participant pursuant to the provisions of Section 4(g) of
the PGP Gas Supply Agreement and shall constitute an obligation payable solely from
the revenues of Project Participant's System, which revenues are pledged therefor,
subject and subordinate to certain payments on existing obligations as provided in said
Section 4(g).
C. The provisions of the Financial Instruments creating Financial Products as
described in the PGP Gas Supply Agreement obligating Project Participant for certain
payments thereunder and to perform certain covenants will constitute obligations of
Project Participant enforceable against it in accordance with the respective terms
thereof. It is intended that payments required under such Financial Instruments will
constitute operating expenses of Project Participant's System to the extent legally
permissible, and within the meaning of Project Participant's indentures, bond resolutions
or other bond documents. If such payments do not constitute operating expenses as
provided above, such payments payable under such Financial Instruments shall
constitute obligations payable solely from revenues of the Project Participant's System,
3
which revenues are hereby pledged therefor, subject and subordinate to certain payments
as provided in Section 4(g) of the PGP Gas Supply Agreement.
D. Project Participant shall not be required to make such payments from taxes
or revenues other than the revenues of Project Participant's System. The obligations of
Project Participant to make payments under the Agreements shall not constitute a debt
of Project Participant within the meaning of any constitutional or statutory provision or
limitation or a general obligation of or pledge of the full faith and credit of Project
Participant. Project Participant shall never be required under the Agreements to levy ad
valorem taxes on any real property to make said payments, and the obligations of Project
Participant thereunder shall not constitute a lien upon any tangible property owned by
or located within the boundaries or the service area of Project Participant, but shall be
payable solely from the aforementioned revenues. No obligee under the Agreements
shall ever have the power to require or compel the levy of ad valorem taxes upon any
property of Project Participant or within its boundaries or service area to make any of the
payments required to be made under the Agreements.
Section 6. System Revenues. The estimated revenues to be derived by Project
Participant from its System will be sufficient to make the payments required to be made
by Project Participant pursuant to the PGP Gas Supply Agreement, to pay all operating
expenses of Project Participant's System, and to make all payments of principal and of
interest on Project Participant's outstanding obligations for bonded or other
indebtedness. (Are we comfortable making this representation when we have not
received a forecast as to costs for gas and services under the Gas Supply Agreement?
Chuck - probably need a cost-benefit analysis on this deal as discussed at yesterdays
meeting. The Council is going to want something to look at, no?))
Section 7. Rate Covenant. Under the terms of the PGP Gas Supply Agreement,
Project Participant agrees that it will establish, impose, maintain, enforce and collect
rates, fees and charges for all services and facilities of its System sufficient to produce
revenues at the times and in the amounts required to pay all costs of the supply of Gas
and other energy or other output and other services for Project Participant's System,
including the payments to be made under the PGP Gas Supply Agreement, as well as all
other costs of operation, administration, maintenance and debt service of the System and
all other amounts payable from or constituting a lien or charge on the revenues of Project
Participant's System. (Same concern as above.)
Project Participant will provide to FGU, or its designee, annually, promptly upon
its preparation, but no later than one hundred fifty (150) days after the end of its Fiscal
Year, a copy of its annual audit and such other financial and other records, and within
such time as may be required by the PGP Gas Supply Agreement or the Production
Agreement.
Section 8. Appointment of Proiect Participant Representative. As required by
Section 28 of the PGP Gas Supply Agreement, the individual who shall serve from time
4
to time as City Manager of Project Participant, or the individual who shall serve from
time to time as either the Managing Director & Executive Officer, of Clearwater Gas
System, or the Gas Program Coordinator/Gas Supply & Technology Engineer, of Project
Participant shall serve as Project Participant Representative authorized to take such
actions as are provided in Section 4 of this Resolution and in Section 28 of the PGP Gas
Supply Agreement, including the giving of instructions and Directives to FGU for the
negotiation and execution of Financial Instruments that will be legally binding upon
Project Participant, and otherwise to fulfill all duties of such representative under
Section 28 of the PGP Gas Supply Agreement. The Project Participant Representative
shall have full authority to represent and bind Project Participant for all purposes
authorized by the PGP Gas Supply Agreement, including those matters related to
Financial Instruments and Financial Products as contemplated therein, including
Section 28(b) thereof, until such Project Participant Representative shall be changed by
Project Participant and written notice of such change shall be given to FGU. FGU may
rely upon any instructions, as well as a Directive executed by the Project Participant
Representative and such action of such Project Participant Representative shall be
deemed duly authorized, executed and delivered by the Project Participant
Representative on behalf of Project Participant and shall be the legally binding obligation
of Project Participant. (again - the context and obligations (dollar amount, etc.) created
by a Directive of the Project Participant Representative will determine what party within
the City must provide approval (Department Head, City Manager, or Council).
Section 9. Assignment. Project Participant hereby authorizes the full or partial
assignment of the PGP Gas Supply Agreement or the payments to be made thereunder
by FGU to any bond trustee, Public Gas Partners, Inc., or otherwise as may be necessary
for the payment of the obligations of Public Gas Partners, Inc., for the purchase of gas or
other obligations under the PGP Gas Supply Agreement, bonds or other obligations
issued by FGU for the payment thereof.
Section 10. Authorizations Concerning Agreements.
A. Upon approval by the Clearwater City Council, the Mayor of Project
Participant shall be and is hereby authorized to execute and deliver the PGP Gas Supply
Agreement for and on behalf of Project Participant pursuant to the terms hereof, in
substantially the form attached hereto as Exhibit A (as provided for herein), and the
Financial Instruments, in such forms as shall be negotiated in the manner provided
herein, in each case, to be revised as provided for herein, and as such officers may
approve, such approval to be conclusively evidenced by the execution thereof.
B. Such officers authorized hereby are also directed to complete or approve
Appendix 1 to the PGP Gas Supply Agreement, to complete Appendix 2 to the PGP Gas
Supply Agreement, to insert the Point(s) of Delivery, to complete Exhibit B to the PGP
Gas Supply Agreement to describe Project Participant's enterprise System and gas
burning or distribution facilities, and to complete Exhibit C to the PGP Gas Supply
Agreement to list and describe Project Participant's outstanding obligations.
5
C. Such other officers and employees of Project Participant as may be
designated by the officers charged with the execution of the Agreements, including the
Project Participant Representative are each designated as agents in connection with the
issuance and delivery of the Agreements 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 Project Participant that are necessary or desirable in
connection with the execution and delivery thereof, and which are specifically authorized
or are not inconsistent with the terms and provisions of this Resolution.
Section 11. Making- Certain Commitments Reg-arding- the Securities Exchang-e Act
of 1934. Project Participant shall provide to FGU, or its designees, on a timely basis and
in such form as shall be reasonably requested by either, any and all documents, releases,
financial statements and other information necessary to enable FGU to comply with any
disclosure or other reporting requirement, including but not limited to Rule 15c2-12 of
the Securities and Exchange Commission promulgated under the Securities Exchange
Act of 1934 (the "Rule"), now or hereafter imposed by the United States of America, the
State of Florida, or any political subdivision or agency of either having jurisdiction over
the issuance of any debt obligations for the acquisition of gas, by law, judicial decision,
regulation, rule or policy. Such information shall be provided by Project Participant from
time to time promptly following the occurrence of a "material event" as described in the
Rule, and as otherwise may be requested by FGU, or its designees, but in any case, no
less frequently than shall enable FGU, or the underwriters or broker/dealers of the
obligations of FGU, or such Project Participant, to comply with any such law, judicial
decision, regulation, rule or policy.
In addition to the foregoing, Project Participant will provide to FGU, or its
designee, annually, promptly upon its preparation, but no later than one hundred fifty
(150) days after the end of its Fiscal Year, a copy of its annual audit and such other
financial and other records as may be required by the issuer of any credit facility or bond
insurance policy or other security instrument securing all or any part of FGU's bonds or
other indebtedness, and otherwise as required by the Production Agreement.
Project Participant shall further enter into a continuing disclosure agreement or
other undertaking as may be reasonably required by the original purchaser of the Bonds
in order to comply with the Rule.
The foregoing shall be provided in the manner set forth in the PGP Gas Supply
Agreement.
Section 12. Validation. Counsel for Project Participant shall cooperate with FGU
and its counsel in any validation proceedings necessary to validate the Bonds and all
matters in connection therewith. (Bob?)
6
Section 14. Severabilitv. If anyone or more provisions of this Resolution should
be determined by a court of competent jurisdiction to be contrary to law, such provisions
shall be deemed to be severable from the remaining provisions hereof and shall in no way
effect the validity or enforceability of such remaining provisions.
Section 15. Repeal of Inconsistent Resolutions. All resolutions or parts of
resolutions in conflict herewith are hereby repealed.
Section 16. Effective Date. This Resolution shall become effective immediately
upon its adoption.
PASSED AND ADOPTED this _ day of
,2004.
Brian J. Aungst, Mayor
Approved as to form:
Attest:
By:
By:
Assistant City Attorney
City Clerk
# 2224875_v3
7
CERTIFICATE OF CLERK
I, , the
Florida (the "City"), HEREBY CERTIFY as follows:
of the City of Clearwater,
1. Attached hereto is a true and correct copy of Resolution No.
adopted by the City on October _, 2004 (the "Resolution").
2. Attached hereto is a true and correct copy of an Extract from the
minutes of the meeting of the City Commissioners of the City held on October _,
2004, which meeting was duly called and held and at which meeting a quorum was
present and voting throughout, as such minutes appear of record in the public records of
the City pertaining to the adoption ofthe Resolution.
3. The Resolution has not been modified, amended, revoked or
repealed in any respect since its date of adoption and remains in full force and effect as of
the date hereof
WITNESS my hand and official seal this _ day of
2004.
CITY OF CLEARWATER, FLORIDA
(SEAL)
Name:
Title:
Attach: Resolution
Extract of Minutes
# 2297053_vl
R~". CG 5 -- C-l
'j:.c. /2.2
PGP GAS SUPPLY AGREEMENT NO.1
BETWEEN
FLORIDA GAS UTILITY
AND
CITY OF CLEARWATER, FLORIDA
Dated as of November 1, 2004
TABLE OF CONTENTS
Page
SECTION 1. Definitions and Explanations of Terms. ............................................... 3
SECTION 2. Term of Agreement. ............................................................................. 14
SECTION 3. Gas Supply Service and Pricing. .........................................................14
SECTION 4. Method of Payment. .. ........................... .......... .............. ............... ......... 19
SECTION 5. Scheduling of Deliveries; Title. ............. ......... ................................ ......22
SECTIO N 6. Point(s) of Delivery............................................................................... 24
SECTION 7. Curtailment................ .......................... .......... ...................................... 24
SECTION 8. Availability of Gas or Gas Entitlement Shares. .................................25
SECTION 9. Insurance.................... ........................... ......... ......................................25
SECTION 10. Annual Budget; Accounting. ................ ............ ......................... ..........25
SECTION 11. Information to be Made Available. ..................................................... 25
SECTION 12. Project Participant Representations and Warranties;
Covenants. ........... .............................. ........... ......... .......... ..... ..........27
SECTION 13. Pledge of Payments. ........ ............. ........... ....... ........................ .............30
SECTION 14. Event of Default. ........................... .......... ........... .................. ..... ..........31
SECTION 15. Continuing Obligation, Right to Discontinue Service. ......................31
SECTION 16. Transfer of Gas Entitlement Shares Following Default.................... 31
SECTION 17. Other Default by Project Participant. ................................................ 33
SECTION 18. Default by FGU. .................................................................................. 33
SECTION 19. Abandonment of Remedy. ................................................................... 33
SECTION 20. Waiver of Default. ................ ..................... ............. .............................33
SECTION 21. Relationship to and Compliance with Other Instruments. ............... 34
SECTION 22. Measurement of Gas. ..........................................................................34
SECTION 23. Liability of Parties. .. ................................... ........................................ 34
SECTION 24. Sale of Project Participant's Excess Gas Entitlement Share. ........... 37
SECTION 25. Assignment of PGP Gas Supply Agreement; Sale of Project
Participant's System. .................... ........... ...................................... 38
SECTION 26. Termination or Amendment. .............................................................. 40
SECTION 27. Force Majeure. ..................................... ........... ........................ .............41
SECTION 28. Project Participant Representative. ..................................................43
SECTION 29. Notice and Computation of Time....................................................... 43
SECTION 32. Severability.. ......................................... ............. .................................44
Exhibit A
Exhibit B
Exhibit C
Exhibit D
Appendix 1 -
Characteristics of Financial Products
Description of System
Project Participant Outstanding Obligations
Form of Natural Gas Project Sharing Agreement
Schedule of Project Participants (Gas Entitlement Share)
for Gas Supply Pool No. 1
Project Participant's Point or Points of Delivery
Form of Opinion of Counsel to Project Participant
Appendix 2 -
Appendix 3 -
PGP GAS SUPPLY AGREEMENT NO.1
This PGP GAS SUPPLY AGREEMENT NO.1 made and entered
into as of November 1, 2004, by and between FLORIDA GAS UTILITY, a
public body corporate and politic formed under the Florida Interlocal
Cooperation Act ("FGU") and the CITY OF CLEARWATER, FLORIDA, a
municipal corporation of the State of Florida ("Project Participant").
WITNESSETH:
WHEREAS, FGU was formed by Interlocal Agreement on
September 1, 1989, which was subsequently amended by the Amended
Interlocal Agreement on June 1, 1992, and thereafter amended and restated
by Amended and Restated Interlocal Agreement dated as of July 1, 1996, and
thereafter amended and restated by Second Amended and Restated Interlocal
Agreement dated as of July 27, 1999 (the "Interlocal Agreement"); and
WHEREAS, in order to take advantage of perceived opportunities
created by the restructuring of natural gas services, FGU was established
between and among several public agencies for the purpose of achieving
savings through joint services for, or which otherwise benefit, its Members;
and
WHEREAS, FGU will take or cause to be taken all steps necessary for
the acquisition of, and will undertake such contractual arrangements
necessary to secure, a suitable supply of Gas or a suitable pricing mechanism
including Financial Products, or both, under one or more Gas Production
Sharing Agreements or Financial Instruments, and will provide the Gas and
pricing mechanism and services pursuant to this Agreement and/or other
related or suitable Financial Instruments, and pursuant to agreements
similar to this Agreement and related or suitable Financial Instruments with
other Project Participants, all as hereinafter defined; and
WHEREAS, in order to enable FGU to provide its services hereunder,
to pay the Cost of Acquisition and Costs provided for herein, and issue its
Bonds to pay the Costs of Acquisition, FGU may have substantially similar
PGP Gas Supply Agreements with other Project Participants; and
WHEREAS, Article VI of the Interlocal Agreement authorizes the
Board of FGU to undertake a Special Project, and it is intended that each of
Project Participants shall become a party to substantially similar
agreements, such undertakings with respect to PGP Gas Project No.1 shall
each be treated as a Special Project.
2
NOW, THEREFORE, for and in consideration of the mutual covenants
and agreements herein contained, it is agreed by and between the parties
hereto as follows:
SECTION 1. Definitions and Explanations of Terms.
As used herein:
Aggregated Transportation Contracts shall have the meaning ascribed
to that term in Section 3(a).
Agreement shall mean this PGP Gas Supply Agreement No.1 and/or
any other related or suitable Financial Instruments that may accompany this
Agreement or be appropriate for the purposes to be achieved by this
Agreement.
Annual Budget shall mean the budget adopted by the Board of FGD
pursuant to paragraph (a) of Section 10, which itemizes the estimated Costs
for the following Contract Year, or, in the case of an amended Annual Budget
adopted by the Board or Executive Committee of FGD, during the remainder
of the Contract Year, and Project Participant's share, if any, of such Costs.
Approved Rate Tariff shall mean the tariff for the transportation of
Gas as approved by FERC or the governmental or other entity charged with
this responsibility.
Board of FGD shall mean the Board of Directors of FGD or if said
Board shall be abolished, its successor board, body, commission or agency
succeeding to the principal functions thereof or to whom the power and duties
granted or imposed by any Bond Resolution shall be given by law.
Board of PGP shall mean the Board of Directors of PGP or if said
Board shall be abolished, its successor board, body, commission or agency
succeeding to the principal functions thereof or to whom the power and duties
granted or imposed by any Bond Resolution shall be given by law.
Bond Resolution shall mean the PGP Bond Resolution or the FGD
Bond Resolution, as the case may be.
Bonds shall mean the PGP Bonds or the FGD Bonds, as the case may
be.
Commencement Date shall mean the earlier of (i) the first date on
which FGD shall make Gas available to any of Project Participants pursuant
to the Gas Production Sharing Agreement, (ii) the effective date of any
Financial Instrument entered into for the benefit of Project Participant
3
1---
pursuant to this Agreement or the Special Project authorized hereby, or (iii)
the effective date of the incurrence by FGU of any obligations under the Gas
Production Sharing Agreement.
Contract Year shall mean the twelve (12) month period commencing at
12:01 a.m. on October 1 of each year, except that the first Contract Year shall
commence on the first to occur of (i) the date which is twelve (12) months
prior to the date on which the first principal installment on any of the Bonds
is due or (ii) the Commencement Date, and shall expire at 12:01 a.m. the next
succeeding October 1.
Costs shall mean PGP Costs, FGU Costs and FGU Costs of Acquisition
and Services.
Debt Service shall mean, with respect to any period, the aggregate of
the amounts required by the Bond Resolution to be paid or deposited during
said period into any fund or account created by the Bond Resolution for the
sole purpose of paying the principal (including sinking fund installments) of,
premium, if any, and interest on all Bonds from time to time outstanding as
the same shall become due; provided, however, that Debt Service shall not
include any amount payable as principal or interest solely as a result of
acceleration of maturity of Bonds.
Default Share shall mean, as to each Project Participant on each
respective date of calculation, (i) that percentage determined by dividing such
Project Participant's annual Gas Entitlement Share as shown on Appendix 1,
as adjusted by any increased volume of Gas purchased by such Project
Participant pursuant to Section 16 and Section 17 below (but in no event
shall a Project Participant's Default Share exceed 25% of such Project
Participant's Gas Entitlement Share under this Agreement), by the aggregate
Gas Entitlement Share of all Project Participants in such year, as shown on
Appendix 1, that are not then in default with respect to any payment
obligations due hereunder; and (ii) in addition, shall expressly include those
payments required to be paid pursuant to clause (ii) of the definition of PGP
Defaulted Gas Payments.
Designee shall mean FGU as the contractually authorized agent of a
Project Participant as defined in the general terms and conditions of
Transporter's Approved Rate Tariff.
Directive shall mean an instrument, in writing, executed and delivered
by a Project Participant Representative that gives directions to FGU
hereunder, or otherwise authorizes actions by FGU hereunder, or implements
all or a part of this Agreement, and upon which FGU may rely as being duly
authorized, executed and delivered by Project Participant.
4
Division shall mean a Project Participant of FGU, and the associated
Point(s) of Delivery of that Project Participant, whose transportation
entitlements have been aggregated under one transportation contract held by
FGU to which Transporter's Approved Rate Tariff applies.
FGT shall mean Florida Gas Transmission Company, and its
successors in interest.
FGU Bond Resolution shall mean a resolution providing for the
issuance of the Bonds, as may be adopted by the Board of FGU, and all
amendments and supplements thereto adopted in accordance with the
provisions thereof, and shall include any Trust Indenture providing for the
issuance of the Bonds, and other related documentation approved by the
Board of FGU or delegated to the Executive Committee of FGU.
FGU Bonds shall mean the bonds, notes or other evidences of
indebtedness, or notes issued in anticipation of the issuance thereof, which
may be issued from time to time by FGU pursuant to the Bond Resolution to
pay any part of the FGU Cost of Acquisition of Gas, whether or not any such
issue shall be subordinated as to payment to any other issue, and shall
include refunding bonds issued in accordance with this Agreement and the
FGU Bond Resolution.
FGU Cost of Acauisition and Services shall mean all costs of acquiring,
planning, financing, pricing, transporting, storing and implementing the
supply of Gas under the Gas Production Sharing Agreement to the extent not
included in the definition of PGP Costs or FGU Costs:
(1) interest accruing in whole or in part on FGU Bonds for
such period as may reasonably be determined to be necessary In
accordance with the provisions of the FGU Bond Resolution;
(2) the deposit or deposits required to be made under the
FGU Bond Resolution from the proceeds of FGU Bonds into any fund
or account established pursuant to the FGU Bond Resolution to meet
Debt Service reserve requirements for FGU Bonds or other
requirements thereunder;
(3) the costs and expenses incurred in the issuance and sale
of the FGU Bonds, the proceeds of which have been or will be required
to be applied to one or more purposes for which FGU Bonds could be
issued, including, without limitation, bond insurance premiums, letter
of credit or other credit enhancement fees, and discounts to the
underwriters or other purchasers thereof, if any, legal, consulting and
financial costs, and amounts required to be paid under any interest
rate exchanges or swaps, cash flow exchanges, options, caps, floors or
5
collars, in each case made in connection with the issuance of the FGU
Bonds;
(4) the payment of principal, premium, if any, and interest
when due (whether at the maturity of principal or at the due date of
interest or upon redemption) on notes or other evidences of
indebtedness from time to time issued in anticipation of the issuance of
FGU Bonds, the proceeds of which have been or will be required to be
applied to one or more purposes for which FGU Bonds could be issued;
(5) all federal, state and local taxes and payments in lieu of
taxes required to be paid by FGU with respect to the services rendered
pursuant to the Gas Production Sharing Agreement;
(6) all costs and expenses relating to claims or judgments
(including injury and damage claims) arising out of the acquisition or
implementation of the Project or relating to operations for which FGU
may be liable under the Gas Production Sharing Agreement or this
Agreement;
(7) all planning and development costs, engmeermg fees,
contractors' fees, costs of obtaining governmental or regulatory
permits, licenses and approvals, costs of real property, labor,
materials, equipment, supplies, training and testing costs, insurance
premiums, legal, consulting and financing costs, administrative and
general costs, and all other costs properly allocable to the acquisition
and implementation of the Project or relating to operations for which
FGU may incur on its own behalf, or for which FGU may be liable
under the Gas Production Sharing Agreement;
(8) (i) all other costs incurred in connection with and properly
chargeable to, the acquisition or implementation of the Project,
including any prepayment of capital or operating expenses required to
be paid by FGU under the Gas Production Sharing Agreement, and (ii)
amounts required to be paid for which FGU may be liable under the
Gas Production Sharing Agreement in respect of commodity swaps,
balancing contracts, hedging arrangements and other similar
agreements related to the supply of Gas hereunder; and Financial
Products authorized hereunder or by Financial Instruments,
implemented in accordance with FGU's obligations under the Gas
Production Sharing Agreement; and
(9) the allowance for working capital or any other reserve
requirements for which FGU is liable under the Gas Production
Sharing Agreement and for which may be required by FGU under this
6
Agreement, and all costs relating thereto, and the cost of credit
facilities or enhancements, in such amounts as FGU shall be obligated
for under the Gas Production Sharing Agreement or this Agreement.
FGU Costs shall mean, to the extent not included in the definition of
PGP Costs or FGU Cost of Acquisition and Services, all costs that are paid or
incurred by FGU directly or indirectly with respect to the purchase, pricing,
supply, storage or transportation of Gas to Project Participants under and
pursuant to the Gas Production Sharing Agreement, Financial Instruments
and costs as defined in the Gas Production Sharing Agreement that include
any and all operating and maintenance costs or other such expenditures
including contingency reserves and any ongoing requirements for capital
expenditures not included within the FGU Costs of Acquisition, to the extent
that FGU may be obligated therefor under the Gas Production Sharing
Agreement, as hereinafter provided, including without limitation, the
following items of cost:
(1) the amount required or related to the purchase of Gas for
which FGU may be liable under the Gas Production Sharing
Agreement (excluding, however, amounts that FGU shall have paid for
by the FGU Prepayment, as defined in the Gas Production Sharing
Agreement), including any amounts required to be paid under the FGU
Bond Resolution, for such Gas sold to FGU, to be paid or deposited
during such Month into any fund or account established by the FGU
Bond Resolution, for the payment of Debt Service on FGU Bonds;
(2) the amount required for the purchase of Gas for which
FGU shall be obligated for under the Gas Production Sharing
Agreement to be paid or deposited during such Month into any fund or
account established by the Gas Production Sharing Agreement or the
FGU Bond Resolution (other than funds and accounts referred to in
clause (1) above), including any amounts required to be paid or
deposited by reason of the transfer of moneys from such funds or
accounts to the funds or accounts referred to in clause (1) above;
(3) FGU's pro rata share of the fees and expenses of the
trustee, remarketing agent, credit or liquidity provider, provider of
insurance and other parties to the financing under the Gas Production
Sharing Agreement or this Agreement;
(4) the costs, as determined in accordance with the Pricing
Policy adopted by the Board of FGU, of (i) Gas supply (to the extent not
covered through the payments described in clause (1) above) as follows:
7
(i) Gas supply purchased by Project Participant under
this Agreement pursuant to the Gas Production Sharing
Agreement, or any other instrument;
(iO Gas transportation to the Point(s) of Delivery of the
Gas pursuant to the Transportation Contracts; and
(iiO FGU service charges for its administrative services
provided hereunder;
(iv) adjustments, and an equitably allocated portion of
all FGU's other expenses; and
(v) any additional amount which must be paid by FGU
during such Month in order to meet its requirements with
respect to any rate covenant under the FGU Bond Resolution
with respect to Debt Service coverage for the FGU Bonds, or
with respect to the Gas Production Sharing Agreement;
(5) amounts required to be paid by FGU under the Gas
Production Sharing Agreement, including FGU's share of any hedging
requirements undertaken by PGP in its own name or for FGU at its
request (subject, however, to the provisions of Section 3(:0 below),
including Financial Instruments entered into in respect of Financial
Products for such purposes; unless expressly otherwise provided to the
contrary in the Financial Instrument or the Gas Production Sharing
Agreement, payments on such obligations shall be allocated to Project
Participant in accordance with the Financial Derivatives Policy
adopted from time to time by the Board of FGU;
(6) any additional amount not specified in the other items of
this definition which must be paid by FGU pursuant to the Gas
Production Sharing Agreement during such Month which are either
properly allocable to the Project or as determined in accordance with
the Pricing Policy adopted by the Board of FGU, including, without
limitation, costs imposed or permitted by any regulatory agency or
which are paid or incurred in connection with the supply of Gas or
services thereunder or the provision of services by FGU for Project
Participants;
(7) all costs and expenses (including, but not limited to, legal
fees and expenses) relating to personal injury and damage claims and
extraordinary costs, expenses or assessments required to be paid by
FGU pursuant to the Gas Production Sharing Agreement or this
Agreement, in connection with the Project, or the delivery of Gas
hereunder or thereunder;
8
(8) any reserves required by FGU to meet obligations
pursuant to the Gas Production Sharing Agreement and this
Agreement, necessary for payment of those items of costs and expenses
incurred in the delivery of services, to the extent not covered by any
preceding clause; and
(9) debt service (including principal, interest and premiums)
and all related charges on any line of credit, letter of credit, working
capital or other loans for which FGU shall be obligated pursuant to the
Gas Production Sharing Agreement. Payments on such obligations
shall be allocated to Project Participant in accordance with the Debt
Obligation Policy adopted by the Board of FGU.
(10) Notwithstanding the foregoing, if an item of cost or
expense referred to above or any part thereof shall relate to less than
all of Project Participants (such as current transportation costs, or the
cost of replacement Gas as described in the definition of Gas) or shall
clearly not be applicable to a Project Participant, such item shall only
be included as an item of FGU Cost with respect to those Project
Participants to which such cost or expense relates.
FGU Defaulted Gas Payment shall mean all payments of Costs due
under the PGP Gas Supply Agreement that were not paid when due by a
Project Participant and shall include, without limitation, all payments made
and collection costs incurred by FGU in connection with such default;
replenishments of any withdrawals from any debt service reserve fund or any
other funds under the Bond Resolution arising from such default; fees, costs
and expenses of FGU, trustees, bond insurers, letter of credit providers and
others in connection with actions required or permitted to be taken under the
Bond Resolution (including, without limitation, the cost of preparing and
filing any material event disclosure), and attorneys fees and costs
attributable to any of the foregoing.
Financial Instrument shall mean an agreement entered into with
respect to the purchase or pricing of Gas or other services provided under this
Agreement that provides for Financial Products by and between the parties
thereto that may include FGU, or Project Participants, or both, any other
Project Participant and any third parties or counterparties; provided that a
Project Participant or Project Participant Representative is required to
authorize a Financial Instrument that obligates only such Project
Participant.
Financial Products shall mean futures contracts, commodity swaps
and hedging arrangements related to the pricing or supply of Gas or other
services provided hereunder, interest rate swaps (relating to debt used to
9
acquire or prepay the cost of Gas), in either case, whether entered into by
FGU, or by Project Participant and/or FGU, including balancing or similar
agreements or interest rate exchanges or swaps, cash flow exchanges,
options, caps, floors or collars implemented in accordance with the Financial
Derivatives Policy adopted by the Board of FGU. Such Financial Products
may consist of those products described in Exhibit A and may have
characteristics similar to those set forth in Exhibit A hereto.
Fiscal Year shall mean the twelve (12) month period commencing at
12:01 a.m. on October 1 of each year, or with respect to a Special Project, as
may be specified for that project.
Gas shall mean pipeline quality natural gas (i) supplied pursuant to
the Gas Production Sharing Agreement for PGP Gas Project No.1 which
shall be purchased with Costs related to the supply or delivery of Gas,
whether or not Gas shall be physically delivered, and (ii) any gas furnished to
replace undelivered Gas.
Gas Entitlement Share shall mean, with respect to each Project
Participant, its annual percentage of Gas required to be paid as a Cost under
the Gas Production Sharing Agreement and under this Agreement, as shown
opposite the name of such Project Participant in the Schedule of Project
Participants set forth on Appendix 1 hereto, as the same may be adjusted
from time to time in accordance with the provisions hereof.
Gas Production Sharine- Ae-reement shall mean the Natural Gas
Production Sharing Agreement for Gas Supply Pool No.1, between FGU and
PGP dated as of November 1, 2004, for the acquisition of Gas to be delivered
hereunder to Project Participants, in substantially the form attached hereto
as Exhibit D.
Member or Members shall mean, as the context shall require, the
Members of FGU who are parties to this PGP Gas Supply Agreement and
PGP Gas Supply Agreements substantially similar to this Agreement and
who are also Project Participants under this Agreement, an initial list of such
Members of which is set forth in Appendix 1 hereto; and shall mean, as the
context shall require, a Member ofPGP.
Month shall mean a calendar month.
Nominated Quantitv shall mean the quantity of Gas in MMBtu per
day that the Project Participant has requested FGU to acquire and sell to the
Member under the terms and conditions of this Agreement each day. The
Project Participant shall establish a Nominated Quantity for the Summer
Season and a Nominated Quantity for the Winter Season. The average of the
Nominated Quantity for the Summer Season and the Nominated Quantity for
10
the Winter Season shall be referred to in this Agreement as the "Annual
Nominated Quantity" and shall be reflected on Appendix 1 hereto.
PGP shall mean Public Gas Partners, Inc., a Georgia nonprofit
corporation.
PGP Bond Resolution shall mean a resolution providing for the
issuance of the Bonds, as may be adopted by the Board of PGP, and all
amendments and supplements thereto adopted in accordance with the
provisions thereof, and shall include any Trust Indenture providing for the
issuance of the PGP Bonds, and other related documentation approved by the
Board of PGP.
PGP Bonds shall mean the bonds, notes or other evidence of
indebtedness, or notes issued in anticipation of the issuance of bonds, which
may be issued from time to time by PGP pursuant to the PGP Bond
Resolution to pay any part of the PGP Cost of Acquisition of PGP Gas,
whether or not any such issue shall be subordinated as to payment to any
other issue of bonds, and shall include refunding bonds issued in accordance
with the PGP Bond Resolution.
PGP Costs shall mean all costs that are required to be paid or incurred
by FGU, directly or indirectly, under and pursuant to the Gas Production
Sharing Agreement and shall specifically include "Costs" as defined in
Section 2.4 of the Gas Production Sharing Agreement as follows: (defined
terms shall have the meaning set forth in the Gas Production Sharing
Agreement): '''Costs' means any and all costs or other expenditures incurred
with respect to Gas Supply Pool No.1, whether they are incurred by Public
Gas Partners directly in connection with Gas Supply Pool No. 1 or are
incurred by Public Gas Partners generally or in connection with more than
one Project and are allocated to Gas Supply Pool No.1, and whether or not
they are Individual Costs, including without limitation: operating and
maintenance costs; capital expenditures; amounts payable by Public Gas
Partners with respect to any debt or other obligations of Public Gas Partners
issued or incurred to finance its acquisition of reserves or any other interests
in, or contractual rights to, natural gas and its production, including but not
limited to all costs of issuance, credit enhancement, interest rate swaps or
other arrangements (including but not limited to ongoing payments and any
termination or unwind payments), remarketing, and disclosure, all fees
relating to trustees, paying and other agents, whether initial or ongoing, and
all required reserves or deposits or other costs associated with the issuance or
incurrence of any such debt; fees and expenses paid to the Manager and any
other amounts payable by Public Gas Partners under the Services Contract;
deposits; royalties; indemnities; environmental or other fines or liabilities;
Losses; costs incurred by Public Gas Partners in its prosecution of any legal
11
claim or other action to enforce its rights or otherwise in connection with or
relating to its interests in gas properties or contractual rights acquired under
Gas Supply Pool No.1; severance, ad valorem, or similar taxes; gathering,
compression, transportation, and balancing charges and penalties or other
similar charges; fuel and lost and unaccounted for gas; ongoing payments,
termination payments, or unwind costs for hedges undertaken for the benefit
of the Members; and other costs, expenses, and charges of any kind or nature
that Public Gas Partners incurs in connection with the production,
acquisition, and delivery to the Member of the gas produced from its interests
or otherwise acquired by Public Gas Partners as part of Gas Supply Pool No.
1." Such Costs that include hedging, swaps or other similar arrangements
may have characteristics similar to those set forth for Financial Products.
Any such Costs may be allocated specifically to one Member or a subset of all
of the Members, but not to all of the Members, and shall be designated
"Individual Costs" as defined in Section 2.11 of the Gas Production Sharing
Agreement.
PGP Defaulted Gas Payments shall mean (i) all payments required to
be made by a Member under the Gas Production Sharing Agreement, which
shall be required to be paid by a Project Participant, and (in which shall
specifically include those payments required by Section 14.6 of the Gas
Production Sharing Agreement for a "step.up" obligation by FGU as a
Member in the amount not to exceed 25% of its Participation Share, if
another Member of PGP shall fail to take its allocation of Gas, for which
Project Participant shall be obligated to accept and pay its pro rata share of
any such step.up obligation of FGU under the Gas Production Sharing
Agreement, as a part of its Default Share. Such Project Participant's right to
Gas shall be governed by Article 14 and the related provisions of the Gas
Production Sharing Agreement.
PGP Gas Proiect No.1 shall mean the Gas to be provided pursuant to a
PGP Gas Purchase Agreement for Project Participants.
PGP Gas SUDDlv Aereement shall mean this PGP Gas Supply
Agreement No.1 and, as appropriate, the substantially similar PGP Gas
Supply Agreements between FGU and Project Participants and any
substantially similar contract entered into by FGU in connection with any
transfer of a Project Participant's Gas Entitlement Share pursuant to Section
16, any assignment of such Gas Entitlement Share pursuant to paragraph (c)
of Section 25 or any assignment of such Gas Entitlement Share with the
consent of FGU in accordance with paragraph (a) of Section 25.
Point or Points of Deliverv shall mean the point or points of delivery
specified in Appendix 2 hereto or such other point or points of delivery from
time to time agreed to between Project Participant and FGU.
12
Prepavment shall mean the lump sum prepayment required under the
Gas Production Sharing Agreement for FGU's ownership interest in the PGP
Gas, as defined in the Gas Production Sharing Agreement.
Proiect or PGP Gas Proiect No.1 shall mean the planning, financing,
acquiring and placing in operation of the Gas Production Sharing Agreement
and the delivery of services and/or Gas under that Agreement or this
Agreement, whether or not Gas is actually available for delivery.
Proiect Participants shall mean the parties, including Project
Participant, other than FGU, to this Agreement and the Agreements
substantially similar to this Agreement for which Bonds or other sources of
financing may be required for a special project for such purpose. An initial
list of Project Participants is set forth in Appendix 1 hereto and which are
Project Participants for PGP Gas Project No. 1.
Proiect Participant Representative shall mean Project Participant
Representative as defined in Section 28 hereof.
Summer Season shall mean the six months of April through
September.
System shall mean and refer to a Project Participant's enterprise
system, as more particularly described in Exhibit B hereto, which describes
those facilities that require or permit the utilization or local distribution of
gas, and any additions or improvements thereto, and all other gas utilization
or distribution enterprise systems that may be constructed or acquired by
Project Participant.
Trans1>ortation Contracts shall mean the contract or contracts for the
transportation of Gas between FGU, or FGU on behalf of Project Participant,
or contracts between Project Participant with the designation of FGU as
Project Participant's agent, and Transporter.
Transporter shall mean Florida Gas Transmission Company,
Gulfstream Natural Gas Systems, L.L.C., or any other company legally
authorized to transport Gas, and its successors in interest.
Winter Season shall mean the six months of October through March.
Words not defined herein may have the meanings ascribed to such
words in the Gas Production Sharing Agreement.
13
SECTION 2. Term of Agreement.
The provisions of this Agreement pertaining to PGP Gas Project No.1
shall become effective upon the Commencement Date with respect to any
Project Participant who shall have executed and delivered this Agreement,
and shall, unless this Agreement is terminated pursuant to Section 26 hereof,
continue until the last to occur of the following: (i) the date the principal of,
premium, if any, and interest on all Bonds have been paid in full, (ii) the date
that funds which, together with interest earnings from the investment
thereof, have been set aside in irrevocable escrow for the payment thereof, all
in accordance with the terms of the Bond Resolution, (iii) FGU shall have
received all rights and benefits under the Gas Production Sharing
Agreement, and (iv) the Gas Production Sharing Agreement shall have been
terminated and all obligations of FGU thereunder satisfied.
Notwithstanding the foregoing, if each Project Participant initially
listed on the Schedule of Project Participants, has executed and delivered its
respective Gas Supply Agreement, the subsequent determination that any
such Project Participant failed to duly and validly execute and deliver its Gas
Supply Agreement, or if any other Gas Supply Agreement, or any portion
thereof, shall be deemed invalid or unenforceable for any other reason
whatsoever, such determination shall in no way affect the commencement,
term or enforceability of this Agreement or Project Participant's obligations
hereunder.
Neither termination nor expiration of this Agreement shall affect any
accrued liability or obligation hereunder.
SECTION 3. Gas Supply Service and Pricing.
(a) Certain of Project Participants have, pursuant to separate
agreements with FGU, aggregated their firm transportation entitlements
with other Project Participants (referred to herein as the "Aggregated
Transportation Contracts") and have authorized FGU to administer that
capacity in the delivery of Gas to each Project Participant. Certain other
Project Participants have designated FGU as their agent for the utilization of
their respective gas transportation entitlements for the delivery of Gas
hereunder.
(i) FGU is hereby authorized, and shall be responsible for
utilizing those firm transportation entitlements, to the extent available
under the respective Transportation Contracts, to cause Project
Participant's Gas to be transported to Project Participant's Point(s) of
Delivery and for all operational decisions and arrangements associated
with the transportation of Gas on or upstream of Transporter's
14
pipeline, including but not limited to, transportation along pipelines
other than Transporter, selection of Point(s) of Delivery, scheduling,
balancing and dispatching of Gas on such pipelines other than
Transporter, as well as on Transporter's pipeline.
(ii) The administration of the Aggregated Transportation
Contract(s) shall be governed solely in accordance with the Pricing
Policy adopted by the Board of FG U.
(iii) It is understood that the Aggregated Transportation
Contract(s) will be operated in a manner which will preserve to each
Division, with Project Participant being a Division, a priority right to
the use of the firm transportation entitlements which would have been
assigned to it in the absence of the Aggregated Transportation
Contract(s). Only when Project Participant's capacity rights are not
required to meet the requirements of Project Participant, will they be
made available to other Divisions in accordance with the Pricing Policy
adopted by the Board of FGU. Aggregated Transportation Contract(s)
capacity not required by any Division may be temporarily relinquished
or otherwise utilized by FGU under the terms of the Approved Rate
Tariff and in accordance with the Pricing Policy adopted by the Board
of FGU.
(iv) Project Participant shall assume full responsibility for
payment of actual transportation charges, including demand charges,
incurred by the Aggregated Transportation Contract(s) for the benefit
of Project Participant. To the extent another Division or customer of
FGU may make actual use of Project Participant's transportation
rights, a reallocation of demand costs shall be made by FGU in
accordance with the Pricing Policy adopted by the Board of FGU.
(v) Because Project Participant requirements change from
time to time, FGU will assist in acquiring and/or disposing of
transportation entitlements for Project Participant. To the extent
Project Participant and FGU agree, FGU will request an allocation of
such capacity in its own name; provided, however, that a sub-allocation
of such incremental transportation entitlement will also be made to the
requesting Project Participant's Division, which shall be binding in the
event of later withdrawals of Project Participants or entitlements, or
dissolution.
(vi) All contracts involving a substantial change in the
burdens or benefits of Project Participant entered into with
Transporter in the name of the Aggregated Transportation Contract(s)
15
for the benefit of Project Participant will be subject to approval in
advance by both FGU and Project Participant.
(vii) Project Participant may retain its Transportation
Contracts with Transporter or other pipeline supplier rather than
aggregate some or all of its transportation entitlements as provided
above. In this case, the relationship between Project Participant and
FGU shall be that of principal and agent and FGU shall in all such
cases serve as Designee. FGU shall administer the retained
transportation contracts in accordance with its terms as Designee for
Project Participant and shall serve in such capacity for the purpose of
the administration of such contracts and shall perform the services as
provided herein with respect to such Transportation Contracts, in
accordance with instructions received from Project Participant.
(viii) Project Participant will provide engineering information
and support as reasonably requested by Transporter or FGU in order
to assure appropriate design, configuration, and installation of
facilities in accordance with generally accepted industry standards
necessary to serve Project Participant's Point(s) of Delivery.
(ix) If Project Participant is temporarily or permanently
unable to utilize all or any portion of its share of the Aggregated
Transportation Contract(s), the following provisions shall apply:
(1) As provided in the Transportation Policy, FGU may
utilize that portion of Project Participant's unused capacity for
use by other FGU Project Participants or customers. These
other FGU Project Participants or customers shall reimburse
Project Participant for use of such capacity, as provided in the
Pricing Policy adopted by the Board of FGU.
(2) To the extent FGU is unable to utilize such excess
Project Participant capacity, FGU will, as permitted by the
Approved Rate Tariff and applicable FERC regulations and
agreements, assist and cooperate with Project Participant to
dispose of such excess transportation entitlement so as to avoid
or minimize any payment obligations by Project Participant to
Transporter or others.
(3) Nothing herein shall relieve Project Participant
from its obligation to reimburse FGU for costs and expenses
incurred by FGU for the released excess capacity for which FGU
is not otherwise reimbursed by third parties.
16
(x) Unless otherwise agreed to by FGU and Project
Participant, Project Participant and FGU anticipate that Transporter
and third parties will rely on FGU for all purposes connected with
servicing the transportation and purchasing of Gas for Project
Participant on Transporter's system or otherwise, including, but not
limited to, the furnishing and receipt of information concerning daily
nominations, scheduling, balancing, Point(s) of Delivery, invoice
payment, accounting, third party transportation, and communications
with Project Participant, and that operational conditions may allow
limited time for communications concerning such matters. To
facilitate this process, and except with respect to services covered by
the Aggregated Transportation Contract(s), Project Participant agrees
to name and hereby designates FGU, or a representative of FGU, as
Project Participant's designee to perform Project Participant's
obligations with respect to nominations, scheduling and payment
under the various Transporter transportation rate schedules under
which Project Participant arranges transportation service for Gas
purchased from FGU hereunder.
(xi) Notwithstanding the foregoing, FGU's responsibilities to
arrange for transportation of Gas to Project Participant's Point(s) of
Delivery shall be limited to Project Participant's transportation
entitlements made available to FGU hereunder and Project
Participant shall ultimately be responsible for securing transportation
rights with respect to Gas to be delivered hereunder.
(xii) Project Participant agrees that, except for (i) any
obligations it may have under any other projects for which payments
for gas have been pledged for payment of debt services on any
indebtedness, such as its Gas Supply Contract dated as of November 1,
1998, (ii) any other PGP Gas, and (iii) any other contractual
obligations in existence on the date hereof as set forth on Exhibit C
hereto (collectively, "Other Gas Projects"), it will satisfy all of its gas
requirements for its System from its Other Gas Projects, including the
PGP Gas Project No.1, before it satisfies its gas requirements from
any other source.
(b) FGU agrees to sell and does hereby sell and Project Participant
of PGP Gas Project No.1 does hereby agree to purchase and does hereby
purchase Project Participant's Nominated Quantity expressed as a
percentage of the Nominated Quantities of all other Project Participants
which shall be its Gas Entitlement Share pursuant to this Agreement. The
Project Participant shall designate on Appendix 1 hereto, its Summer Season
volume of Gas and its Winter Season volume of Gas. The average of the
Nominated Quantity for the Summer Season and the Nominated Quantity for
17
the Winter Season shall be referred to in this Agreement as the "Annual
Nominated Quantity." FGU shall be authorized to complete the Gas
Entitlement Share when all PGP Gas Supply Agreements have been executed
and delivered to FGU.
(c) Project Participant shall, in accordance with and subject to the
provisions of Section 4 hereof, pay FGU for its Gas Entitlement Share
periodically as billed and required, during the term of this PGP Gas Supply
Agreement, to be delivered in the Nominated Quantity as provided in
Appendix 1 hereto, an amount determined by multiplying the Costs
applicable to all Project Participants by Project Participant's applicable Gas
Entitlement Share, plus the items of cost specifically allocable to Project
Participant individually under the definition of the FGU Costs with respect
to, among other things, replacement Gas and current transportation charges,
in each case, regardless of the actual amount of Gas scheduled or tendered for
delivery or delivered, and whether or not any Gas is produced or otherwise
delivered, and regardless of any transportation actually utilized, and
regardless of any amount that may have been included in the Annual Budget
or any amendment thereto.
(d) In addition to all Project Participant's payment obligations with
respect to its respective Gas Entitlement Share, if there has been an FGU
Defaulted Gas Payment or a PGP Defaulted Gas Payment, each Project
Participant shall also pay the Default Share.
(e) If Project Participant's scheduled deliveries of Gas fluctuate
seasonally as shown on Appendix 1, FGU will manage Project Participant's
cash flow during the year so that Project Participant's cash flow requirements
with respect to payment of Costs more closely match the percentage of Gas it
receives on such seasonal basis. FGU agrees to cover such payments to the
extent of its available working capital as determined from time to time by
FGU in its sole discretion. However, notwithstanding FGU's agreement,
nothing contained herein shall relieve Project Participant of its payment
obligations otherwise required under Section 3(c) and (d) above and Section
4(d) below.
CD FGU agrees that without the prior written consent of Project
Participant, it will not undertake or engage in any activity described in
clause (ii) of subparagraph (8) of the definition of FGU Cost of Acquisition
and Services of Section 1, or in subparagraph (5) of the definition of FGU
Costs of Section 1 of this Agreement; provided, however, that FGU is not
required to obtain such prior written consent with respect to such PGP Costs.
18
SECTION 4. Method of Payment.
In the event of any dispute as to any portion of any periodic statement,
Project Participant shall nevertheless pay the full amount of the disputed
charges when due and shall give written notice of the dispute to FGU not
later than thirty (30 ) days after the date such payment is due. Such notice
shall identify the disputed bill, state the amount in dispute and set forth a
full statement of the grounds on which such dispute is based. No adjustment
shall be considered or made for disputed charges unless notice is given as
aforesaid. FGU shall give consideration to such dispute and shall advise
Project Participant with regard to its position relative thereto within thirty
(30) days following receipt of such written notice. Upon final determination
(whether by agreement, arbitration, adjudication or otherwise) of the correct
amount, any difference between such correct amount and such full amount
shall be properly reflected in the statement next submitted to Project
Participant after such determination.
(a) As soon as possible after the execution of this Agreement, the
Executive Committee of FGU shall adopt and mail to Project Participant an
amendment to the Annual Budget for the Contract Year which begins on the
Commencement Date, and thereafter, at FGU's annual meeting each year,
the Board of FGU shall adopt and mail to Project Participant an Annual
Budget for the next ensuing Contract Year, in each case which shall provide
an estimate of Project Participant's periodic payments hereunder and serve
as a basis for Project Participant's payments hereunder for Costs for such
Contract Year. During each Contract Year, FGU may from time to time
amend the Annual Budget to take into account extraordinary receipts, credits
or costs substantially affecting the Costs. Neither the Annual Budget, nor
amendments thereto, shall be binding on FGU or affect the amount Project
Participant is obligated to pay hereunder.
(b) As soon as the billing information is available, FGU shall render
to Project Participant, by mail, courier or facsimile or other electronic
transmission, a periodic statement showing, in each case with respect to the
prior statement (i) the amount payable by Project Participant in respect of
Costs and its Default Share, (ii) the amount, if any, reasonably determined by
FGU on a periodic basis, and any amounts determined in accordance with of
this Section 4(b) on an annual basis, to be credited to or paid by Project
Participant with respect to any adjustment for actual Costs incurred during
the next preceding period or Contract Year, (iii) the credits, if any, against
Project Participant's share of Costs determined in accordance with this
Section 4(b), and (iv) any other amounts (except amounts in respect of Costs
and Default Share which are intended to be billed exclusively pursuant to
clause (i) above) payable by or credited to such Project Participant pursuant
to this Agreement or the Bond Resolution not otherwise shown; and such
19
Project Participant shall pay the total of such amounts at the times specified
below. FGU will provide a calendar of invoice and due dates at the beginning
of each fiscal year, to the extent feasible. If payment in full is not made on or
before the close of business on the due date, a delayed-payment charge on the
unpaid amount due for each day overdue may be imposed at the prime rate of
interest as published from time to time by the Wall Street Journal and in
effect in the calendar month for which the unpaid balance shall be received,
plus 2%, or the maximum rate lawfully payable by Member, whichever is
less. If said due date is a Saturday, Sunday or a holiday, the next preceding
business day shall be the last day on which payment may be made without
the addition of the delayed"payment charge. Failure by Member to pay the
full amount due by the due date may result in the discontinuance of gas
supply service by FGU as set forth in Section 15 below. All statements will
be trued up as provided in the Gas Production Sharing Agreement.
(c) On or before one hundred fifty (150) days after the end of each
Contract Year, and at such other times as it shall deem desirable, FGU will
submit to Project Participant a detailed statement of the actual aggregate
Costs and Default Share due hereunder and any adjustment thereof or credit
thereto pursuant to Section 4(b) above and Project Participant's share
thereof, and all other amounts, if any, payable by or credited to Project
Participant pursuant hereto during such Contract Year or for such number of
months as FGU deems appropriate, and adjustments of the aggregate Costs,
if any, for any prior Contract Year and any adjustment thereof or credit
thereto pursuant to Section 4(b) above, based on the annual audit of accounts
provided for in Section 10 hereof or, if for a period other than a full Contract
Year, on such other information as FGU deems reliable. If, on the basis of
the statements submitted as provided in Section 4(b) above, the actual
aggregate Costs and any adjustment thereof or credit thereto pursuant to
Section 4(b) and other amounts payable for any Contract Year exceed the
estimate thereof on the basis of which Project Participant has been billed, the
amount of such deficiency shall be divided into six, or fewer, as determined
by the Executive Committee of FGU in its sole discretion, equal installments
and added to Project Participant's periodic statement for each of the next
succeeding six or fewer months, as appropriate, as provided in Section 3(d).
If, on the basis of the statement submitted pursuant to this paragraph, the
actual aggregate Costs and any adjustment thereof or credit thereto pursuant
to Section 3(d), or other amounts payable for any Contract Year are less than
the estimate therefor on the basis of which such Project Participant has been
billed, the amount of such excess shall be divided into six, or fewer, as
determined by the Executive Committee of FGU in its sole discretion, equal
installments and credited to Project Participant's statement for each of the
next succeeding six (6) or fewer months, as appropriate. Notwithstanding the
foregoing, actual costs as compared to amounts billed by PGP will be trued up
within one hundred twenty (120) days of the end of the Fiscal Year of PGP
20
and shall be payable within sixty (60) days from receipt of invoices, all in the
manner provided by the Gas Production Sharing Agreement.
(d) The obligation of Project Participant to make payments under
this Agreement shall not be subject to any reduction, whether by offset,
counterclaim, or otherwise, and shall not be otherwise conditioned upon
performance of FGU or PGP under this Agreement, the Gas Production
Sharing Agreement or any other agreement or instrument or the validity or
enforceability of this Agreement, the Gas Production Sharing Agreement, or
any other agreement between FGU and any other Project Participant. The
obligation of Project Participant to make the payments under this Agreement
for its share of Costs and other amounts, shall constitute an obligation of
Project Participant payable as an operating expense of Project Participant's
System solely from the revenues and other available funds of the System.
(e) The obligation of Project Participant to make payments under
this Agreement shall not constitute a debt of Project Participant within the
meaning of any constitutional or statutory provision or limitation or a
general obligation of or pledge of the full faith and credit of Project
Participant, and neither Project Participant nor the State of Florida or any
agency or political subdivision thereof shall ever be obligated or compelled to
levy ad valorem taxes to make the payments provided for under this
Agreement, and the obligation of Project Participant to make payments
pursuant to this Agreement shall not give rise to or constitute a lien upon
any tangible property of Project Participant or any tangible property located
within its boundaries or service area.
(t) Notwithstanding the foregoing, if the obligations of Project
Participant to make payments under Section 4(d) of this Agreement or any
part of the obligation under any Financial Instrument, would not be legally
permissible, or would not be treated as, or otherwise be accorded the status
of, operation and maintenance payments under the provisions of Project
Participant's indentures, bond resolutions or other bond documents entered
into in connection with the financing of Project Participant's System, such
part of such obligations that are precluded such status will be incurred and
accorded the treatment in accordance with the provisions of paragraph (g)
below.
(g) Such part of such obligations for the payment of services
hereunder or under the Bonds or a Financial Instrument that is not treated
as, or otherwise accorded the status of, operation and maintenance costs of
Project Participant's System for the reasons set forth in Section 4(t) above,
shall constitute an obligation payable solely from the revenues and other
funds of Project Participant's System, which are hereby pledged for such
purpose, subject and subordinate to the following obligations of Project
21
Participant that would expressly preclude Project Participant from making
the payments required hereunder senior to such obligations (i) operation,
maintenance, renewal and replacement expenses of Project Participant's
System, (ii) bonds (as well as bond anticipation notes), notes or other
obligations for money borrowed, now outstanding or hereafter issued, for
System purposes payable from revenues of Project Participant's System, (iii)
subordinated bonds, notes or other obligations of the System payable from
revenues of Project Participant's System and senior in credit to, or subject to
a negative pledge with respect to, the obligations of the type imposed hereby,
in each case, outstanding on the date of execution of this Agreement by
Project Participant, and (iv) payments required to be made into or from funds
established under the ordinances or resolutions authorizing bonds, notes or
other obligations referred to in clauses (ii) or (iii) hereof. All such obligations
in existence on the date hereof shall be listed on Exhibit C hereto, and all
further obligations shall be listed on an amended Exhibit C and delivered to
FGU.
(h) If at any time Project Participant has revenue bonds
outstanding payable from or secured by a pledge of net revenues of its
System, Project Participant agrees that, in connection with any financial
tests or conditions for the issuance of additional revenue bonds or other
obligations payable from and secured by a pledge of net revenues of its
System, Project Participant shall treat all payments made or estimated to be
made to FGU under this Agreement as operating expenses for purposes of
computing the amount of net revenues available for the payment of such
outstanding revenue bonds and such additional revenue bonds.
If FGU is entitled to payments under or in respect of the Gas
Production Sharing Agreement (other than payments intended to reimburse
FGU for its costs and expenses and other than payments required under any
applicable document), or the Bond Resolution to be used in accordance with
the Bond Resolution to pay Debt Service on the Bonds or other costs and
expenses of Gas Project No.1), FGU shall distribute such payments or Gas
credits to each Project Participant in proportion to its respective Gas
Entitlement Share or provide replacement Gas as requested by Project
Participant, in each case, after deducting therefrom any amounts otherwise
due by such Project Participants hereunder. FGU shall distribute such
payments or Gas credits to each Project Participant after deducting
therefrom any amounts otherwise due by such Project Participant hereunder,
all in accordance with the Pricing Policy adopted by the Board of FGU.
SECTION 5. Scheduling of Deliveries; Title.
(a) All of the provisions of this Section 5 are subject to the
provisions of the Gas Production Sharing Agreement, and in the event of any
22
inconsistencies between this Section 5 and the prOVISIons of the Gas
Production Sharing Agreement governing scheduling, the terms of the Gas
Production Sharing Agreement shall govern.
(b) The quantity to be supplied by FGU shall be stated on a daily
basis and nominated monthly by Project Participant, as otherwise agreed to
in accordance with the provisions hereof, or with respect to Project
Participant, in accordance with its Gas Entitlement Share.
(c) It will be Project Participant's responsibility to notify FGU of
any variations in Project Participant's daily Gas usage rate. Project
Participant will provide FGU with its natural gas requirements in such a
manner to allow FGU to effectively arrange for the required Gas
transportation and associated services and as required by the Gas Production
Sharing Agreement, in a timely and cost effective manner for Project
Participant. The actual details of such daily and monthly information
requirements will be mutually agreed upon by the parties and may change
from time to time to meet varying conditions.
(d) Project Participant shall advise FGU of any change in any of the
gas requirements at Project Participant's Point(s) of Delivery as soon as is
reasonably possible to allow FGU to make necessary adjustments in other
Project Participants' or customers' gas volume nominations to avoid
imbalances and penalties and to fully comply with the Gas Production
Sharing Agreement.
(e) FGU will promptly notify Project Participant of all pipeline
operating conditions, including but not limited to operational flow orders and
alert days for which Project Participant may be subject to costs or penalties
as a result of noncompliance. If Project Participant does not fully comply
with such operational requirements, Project Participant will assume full
liability for any noncompliance.
(t) Title to the Gas transported for Project Participant with its own
transportation contracts will pass to such Project Participant upon and
concurrently with the purchase thereof by FGU from PGP. Title to Gas
purchased for transportation under the Aggregate Transportation Contracts
will pass upon delivery by FGU to Project Participant at Project Participant's
Point(s) of Delivery.
(g) Although PGP or FGU may hold title to the Gas during the
transportation process to Project Participant's Point(s) of Delivery under
paragraph (e) above, Project Participant shall bear the full risk of loss for all
such Gas during such transportation by FGU on Transporter's system or
otherwise, including but not limited to, injury, loss or damage caused by the
23
Gas during the transportation thereof and any economic or consequential
damages to Project Participant for failure to deliver Gas or otherwise.
Project Participant agrees, to the extent permitted by law, and
pro rata with other Project Participant to the extent of its Gas provided
hereunder, and/or its Gas Entitlement Share, in effect on the date of
occurrence of the event giving rise to the claim, to indemnify and hold PGP or
FGU harmless from any and all losses or damages sustained by PGP or FGU
under this Agreement, the Gas Production Sharing Agreement, or otherwise,
including any and all suits, actions, damages, losses, and expenses arising
out of adverse claims of any persons, including Project Participant, to such
Gas or the title thereto, regardless of the party responsible for its delivery, or
to royalties, taxes, license fees, or charges thereon, and from any and all
liability to any persons, including Project Participant, or for any property
damage, occasioned by PGP or FGU holding title to Gas for benefit of Project
Participant.
(h) Except as otherwise expressly stated herein, neither the
scheduling by Project Participant, nor the delivery by FGU of Gas in
quantities less than Project Participant's Gas to be purchased hereunder or
its Gas Entitlement Share, or the curtailment by FGU or the under
utilization by Project Participant of its transportation entitlements under any
other agreement with FGU or otherwise, shall relieve Project Participant of
its payment obligations under this Agreement, including those set forth in
Sections 3 and 4 hereof.
SECTION 6. Point(s) of Delivery.
Gas scheduled by Project Participant pursuant to Section 5 of this
Agreement will be delivered at Project Participant's Point or Points of
Delivery, which such party shall designate to FGU in writing. The quantity
of Gas actually delivered to Project Participant shall be adjusted to take into
account Gas used or consumed in the transportation thereof to the Points of
Delivery.
SECTION 7. Curtailment.
It is understood that, in the event of a capacity curtailment on the
Transporter's system or other transportation system used by FGU which
causes an interruption of transportation service, curtailment shall be
implemented in accordance with Transporter's currently effective curtailment
plan.
24
SECTION 8. Availability of Gas or Gas Entitlement Shares.
Except as provided otherwise by this Agreement, and subject to the
provisions of the Gas Production Sharing Agreement and any applicable
Transportation Contracts or other transportation arrangements, Project
Participant's Gas Entitlement Share, as the case may be, shall be made
available in accordance with this Agreement during the term hereof.
SECTION 9. Insurance.
FGU shall carry such insurance as shall be carried in accordance with
customary industry standards.
SECTION 10. Annual Budget; Accounting.
(a) At FGU's annual meeting each year, the Board of FGU shall
adopt an Annual Budget for the next ensuing Fiscal Year and shall deliver
the Annual Budget to each Project Participant prior to the beginning of each
Fiscal Year. During each Fiscal Year, FGU, by action of its Executive
Committee, may from time to time amend the Annual Budget.
(b) FGU agrees to keep accurate records and accounts in accordance
with generally accepted accounting principles, consistently applied. Said
accounts shall be audited annually by a firm of certified public accountants,
experienced in governmental accounting and electric and gas utility company
accounting and of suitable reputation, to be employed by FGU. A copy of
each annual audit, including all written comments and recommendations of
such accountants, shall be furnished by FGU to Project Participant not later
than one hundred fifty (150) days after the end of each Fiscal Year. Project
Participant shall have the right to audit the books and records of FGU from
time to time, upon reasonable notice, to the extent necessary to verify the
Costs and, with respect to Project Participant, payable hereunder.
SECTION 11. Information to be Made Available.
(a) Based, in each case, upon the data most recently available to
FGU pursuant to the Gas Production Sharing Agreement or Financial
Instruments, FG U will furnish or otherwise make available to Project
Participant all information related to Gas supply or pricing of Gas, which
FGU receives under the Gas Production Sharing Agreement or any 'Financial
Instrument and all transportation costs under the Transportation Contracts,
where available to FGU, and will prepare and issue to Project Participant
reports each quarter of the Fiscal Year on the status of the Annual Budget.
(b) Project Participant shall, upon request, furnish to FGU all such
information, certificates, certified copies of official proceedings, engineering
25
reports, feasibility reports, information relating to its system, Transportation
Contracts, financial statements, opinions of counsel (including the opinion
required by subsection (c) hereoD, official statements and other documents as
FGU shall be reasonably requested to deliver pursuant to the services
provided under this Agreement.
(c) Project Participant shall at the time requested by FGU, cause an
opmlOn or opinions (i) in substantially the form attached hereto as
Appendix 3 to be delivered by one or more attorneys or firms of attorneys
satisfactory to FGU with respect to the authorization, execution and validity
of this Agreement or any Financial Instrument, as it relates to Project
Participant, and, if Project Participant shall have bonds or other obligations
outstanding secured by a pledge of revenues of its System, the legality under
the terms and conditions of the ordinance, resolution, indenture or other
contractual arrangement with the holders of such bonds, of the performance
by Project Participant of its covenants and agreements under this
Agreement, and (ii) in such other form as may be required under the Gas
Production Sharing Agreement, Financial Instrument or this Agreement and
with respect to Project Participant, the Bond Resolution or bond purchase
agreement executed in connection with the sale and delivery of the Bonds.
(d) Project Participant shall provide to FGU, or its designees, on a
timely basis and in such form as shall be reasonably requested by either, any
and all documents, releases, financial statements and other information
necessary to enable FGU to comply with any disclosure or other reporting
requirement, including but not limited to Rule 15c2-12 of the Securities and
Exchange Commission promulgated under the Securities Exchange Act of
1934 (the "Rule"), now or hereafter imposed by the United States of America,
the State of Florida, or any political subdivision or agency of either having
jurisdiction over the issuance of any debt obligations for the acquisition of
gas, by law, judicial decision, regulation, rule or policy. Such information
shall be provided by Project Participant from time to time promptly following
the occurrence of a "material event" as described in the Rule, and as
otherwise may be requested by FGU, or its designees, but in any case, no less
frequently than shall enable FGU or the underwriters or broker/dealers of
the obligations of FGU, or such Project Participant, to comply with any such
law, judicial decision, regulation, rule or policy.
In addition to the foregoing, Project Participant will provide to FGU, or
its designee, annually, promptly upon its preparation, but no later than one
hundred fifty (150) days after the end of its Fiscal Year, a copy of its annual
audit and such other financial and other records as may be required by the
issuer of any credit facility or bond insurance policy or other security
instrument securing all or any part of FGU's bonds or other indebtedness.
26
Project Participant further agrees to enter into a continuing disclosure
agreement or other undertaking as may be reasonably required by the
original purchaser of those obligations contemplated pursuant to the Bond
Resolution, in order to comply with the Rule.
SECTION 12. Project Participant Representations and Warranties;
Covenants.
(a) Additional Bonds may be sold and issued in accordance with the
provisions of the Bond Resolution at any time and from time to time (i) if, for
any reason, the proceeds derived from the sale of Bonds prior to such time
shall be insufficient for the purpose of paying Costs or (ii) to refund all or a
part of the Bonds previously issued thereunder in accordance with clause (c)
below.
(b) Any such additional Bonds shall be secured by the pledge, made
pursuant to the provisions of Section 13 hereof, of the payments required to
be made by Project Participant under Sections 3 and 4 of this Agreement and
all other payments attributable to the Project to be made in accordance with
or pursuant to any other provision of this Agreement, as such payments may
be increased, decreased and/or extended by reason of the issuance of such
additional Bonds, and such additional Bonds may be issued in amounts
sufficient to pay the full amount of such Costs referred to in clause (a) above
and to provide such reserves as may be reasonably determined to be
desirable. Any such additional Bonds issued in accordance with the
provisions of this Section 12 and secured by the pledge of payments to be
made in accordance with the provisions of this Section 12 and Section 13
hereof, may rank pari passu as to the security afforded by the provisions of
this Agreement with all Bonds theretofore issued pursuant to and secured in
accordance with the provisions of this Agreement or the Bond Resolution.
(c) In the event Costs may be reduced by the refunding of any
Bonds then outstanding or in the event it shall otherwise be advantageous to
refund any Bonds, Refunding Bonds may be issued and sold in accordance
with the Bond Resolution to be secured by the pledge, made pursuant to the
provisions of Section 13 hereof, of this Agreement and of the payments
required to be made by Project Participant under Sections 3 and 4 of this
Agreement and all other payments to be made in accordance with or
pursuant to any other provision of this Agreement. Any such Refunding
Bonds issued in accordance with the provisions of this Section 12 and secured
by the pledge of such payments may rank pari passu as to the security
afforded by the provisions of this Agreement with all Bonds theretofore
issued pursuant to and secured in accordance with the provisions of this
Agreement.
27
(d) Project Participant covenants that it will not make any sales of
its Gas Entitlement Share, or take any other action or omit to take any
action, which, if taken or omitted, would adversely affect the exclusion of
interest on the Bonds from gross income for Federal income tax purposes.
Without limiting the foregoing, because the sale of Gas from its Gas
Entitlement Share to persons other than state or local governments pursuant
to certain contracts may adversely affect the exclusion of interest from gross
income for Federal income tax purposes, Project Participant covenants that
Project Participant has entered into no contracts of more than thirty (30)
days' duration for the sale of Gas to persons other than state or local
governments except contracts provided to FGU and that no such contracts
shall be entered into unless it shall have been determined that such contracts
will not adversely affect the exclusion of interest on the Bonds from gross
income for Federal income tax purposes, of any holder thereof.
(e) Project Participant agrees (a) to maintain its System in good
repair and operating condition; (b) to cooperate with FGU in the performance
of the respective obligations of such Project Participant and FGU under this
Agreement, the Gas Production Sharing Agreement and all Financial
Instruments; and (c) to establish, levy and collect rents, rates and other
charges for the products and services provided by its System, which rents,
rates, and other charges shall be at least sufficient (i) to meet the operation
and maintenance expenses of such System, (ii) to comply with all covenants
pertaining thereto contained in, and all other provisions of, any resolution,
trust indenture, or other security agreement relating to any bonds or other
evidence of indebtedness issued or to be issued by Project Participant,
including, without limitation, all deposit requirements to pay debt service,
fund debt service and operating reserves and to pay ongoing project costs
hereunder, (iii) to generate funds sufficient to fulfill the terms of all other
contracts and agreements made by Project Participant, including, without
limitation, this Agreement and to fulfill its pro rata obligations of FGU under
the Gas Production Sharing Agreement, and Financial Instruments, and to
budget, appropriate and make all payments required hereunder in each fiscal
year of Project Participant during the term hereof, and (iv) to pay all other
amounts payable from or constituting a lien or charge on the revenues of its
System.
(D Project Participant further agrees that for good and valuable
consideration and for the purpose of obtaining a source of gas supply upon
favorable terms and price it will not take any action, except as permitted by
Section 25(c) hereof which, if Project Participant is a Member, will lead to its
withdrawal as a Member of FGU or if a Project Participant of PGP Gas
Project No.1 and not a Member, will lead to a withdrawal or other
termination of its status as a Project Participant during the term of this
Agreement; and that if a Member of FGU it will not vote for or otherwise
28
participate in any action to dissolve or otherwise terminate the existence of
FGU or if a Project Participant, the status of such Project, during the term of
this Agreement.
(g) Project Participant hereby represents that it has not entered
into, nor is it a party, directly or indirectly to, any contract, agreement or
understanding, whether oral or written, the provisions of which would or
might be breached by Project Participant's execution of this Agreement or the
performance by it of its obligations hereunder.
(h) Project Participant hereby covenants that, unless and until it
shall sell all or substantially all of its System in accordance with the
provisions of Section 25(c) hereof, it will maintain its present existence as a
public body to the full extent permitted by its charter and other governing
instruments, the Constitution and laws of the State of Florida.
(i) Project Participant hereby makes the following representations
and warranties to FGU:
(1) Project Participant is a municipality, duly organized and
validly existing under the laws of the State of Florida and in good
standing under the laws of the State of Florida, and has the power and
authority to own its properties, to carryon its business as now being
conducted, and to execute, deliver, and perform this Agreement.
(2) The execution, delivery, and performance by Project
Participant of this Agreement have been duly authorized by all
necessary corporate action of Project Participant and do not and will
not require, subsequent to the execution of this Agreement by Project
Participant, any consent or approval of the governing body or any
officers of Project Participant, any consent or approval of any third
party, or any other governmental consents or approvals.
(3) This Agreement is the legal, valid, and binding obligation
of Project Participant, enforceable in accordance with its terms, except
as such enforceability may be subject to (i) the exercise of judicial
discretion in accordance with general principles of equity and (ii)
bankruptcy, insolvency, reorganization, moratorium, and other similar
laws affecting creditors' rights.
(4) There is no action, suit, proceeding, inquiry, or
investigation at law or in equity, before or by a court, a public board, or
another body, pending (i.e., as to which Project Participant has
received service of process) or, to Project Participant's knowledge,
threatened, against or affecting Project Participant (or, to Project
Participant's knowledge, any meritorious basis therefor) (i) attempting
29
to limit, en]om, or otherwise restrict or prevent Project Participant
from functioning, or contesting or questioning the existence of Project
Participant, or the titles of the present officers of Project Participant to
their offices; or (ii) wherein an unfavorable decision, ruling, or finding
would (a) materially adversely affect the existence or powers of this
Agreement or any other agreement or instrument to which Project
Participant is a party and which is used or contemplated for use in the
consummation of the transactions contemplated by this Agreement, or
(b) materially adversely affect (1) the financial condition or results of
operations of Project Participant or (2) the transactions contemplated
by this Agreement.
(5) The execution and delivery by Project Participant of this
Agreement and its compliance with its provisions will not conflict with
or constitute on Project Participant's part a violation of, breach of, or
default under (i) any of Project Participant's governing instruments,
(ii) any Constitutional provision or statute, indenture, mortgage, lease,
resolution, note agreement, or other agreement or instrument to which
Project Participant is a party or by which Project Participant is bound,
or (iii) any order, rule or regulation of any court or governmental
agency or other body having jurisdiction over Project Participant or
any of its properties.
(6) Any certificate signed by an authorized officer of Project
Participant delivered in accordance with this Agreement or the Gas
Production Sharing Agreement shall be deemed a representation and
warranty by Project Participant as to the statements made therein.
SECTION 13. Pledge of Payments.
All right, title and interest of FGU in, to and under this Agreement
and all payments required to be made by Project Participant pursuant to the
provisions of Sections 3 and 4 hereof, and all other payments to be made in
accordance with or pursuant to any other provision of this Agreement, may
be pledged and assigned, in whole or in part, for the payment of Bonds,
subject to application in accordance with the provisions of the Bond
Resolution or for other such payments required to be made by FGU pursuant
to the Gas Production Sharing Agreement or, if permitted by the Bond
Resolution or such agreement, any Financial Instrument, to secure the
payment of Bonds and any obligations of Project Participant authorized by
this Agreement, Financial Products or Costs, and Project Participant hereby
expressly acknowledges and consents thereto. In this regard, the assignment
and pledge may expressly provide for the order and priority of the pledge for
the payment of Costs and for the payment of the specified obligations of
either FGU, PGP or Project Participants.
30
SECTION 14. Event of Default.
Failure of Project Participant to make to FGU when due any of the
payments for which provision is made in this Agreement shall constitute an
immediate default on the part of Project Participant.
SECTION 15. Continuing Obligation, Right to Discontinue Service.
In the event of any default referred to in Section 14 hereof, Project
Participant shall not be relieved of its liability for payment of the amounts in
default and FGU shall have the right to recover from Project Participant any
amount in default. In enforcement of any such right of recovery, FGU may
bring any suit, action, or proceeding in law or in equity, including mandamus,
injunction, specific performance, declaratory judgment, or any combination
thereof, as may be necessary or appropriate to enforce any covenant,
agreement or obligation to make any payment for which provision is made in
or contemplated by this Agreement or Financial Instrument, against Project
Participant, and FGU may, upon five (5) days written notice to Project
Participant, cease and discontinue, either permanently or on a temporary
basis, providing all or any portion of the Gas sold hereunder or Project
Participant's Gas Entitlement Share.
SECTION 16. Transfer of Gas Entitlement Shares Following Default.
In the event of a default by Project Participant and permanent
discontinuance of service under this Agreement pursuant to Section 15, FGU
is hereby appointed the agent of Project Participant for the purpose of
disposing of Project Participant's Gas Entitlement Share and as such agent,
FGU shall proceed to dispose of the defaulting Project Participant's Gas
Entitlement Share as follows:
(a) FGU shall, as soon as possible, terminate any spot, short term
or terminable supply of Gas that Project Participant may otherwise have the
right to receive from FGU that Project Participant has not otherwise paid for.
(b) FGU shall then, with respect to long term or non-terminable
Gas, pursuant to the Gas Production Sharing Agreement and this
Agreement, offer to transfer to all other nondefaulting Project Participants, a
pro rata portion of the defaulting Project Participant's Gas Entitlement Share
which shall have been discontinued by reason of such default. Any part of
such Gas Entitlement Share of a defaulting Project Participant which shall
be declined by any nondefaulting Project Participant shall be reoffered pro
rata to the nondefaulting Project Participant which have accepted in full the
first such offer; such reoffering shall be repeated until the defaulting Project
Participant's Gas Entitlement Share has been reallocated in full or until all
nondefaulting Project Participant have declined to take any portion or
31
additional portion of the defaulting Project Participant's Gas Entitlement
Share.
(c) In the event less than all of a defaulting Project Participant's
Gas Entitlement Share shall be accepted by the other nondefaulting Project
Participants, pursuant to clause (b) above, FGU shall, to the extent permitted
by law, use its reasonable best efforts to sell the remaining portion of a
defaulting Project Participant's Gas Entitlement Share for the remaining
term of the defaulting Project Participant's PGP Gas Supply Agreement with
FGU. The purchases shall be reasonably acceptable to any credit provider
with respect to the Bonds, and the agreement for such sale shall contain such
terms and conditions as will not adversely affect the security for the Bonds
afforded by the PGP Gas Supply Agreement of such defaulting Project
Participant, including provisions for discontinuance of service upon default
and as are otherwise acceptable to FGU, and such purchases shall, in the
determination of FGU, not adversely affect the exclusion from gross income
for Federal income tax purposes of interest on the Bonds; in the event of
default and discontinuance of service under such agreement, the Gas
Entitlement Share sold pursuant to such agreement shall be offered and
transferred as provided for defaulting Project Participants in this Section 16.
(d) Any portion of the Gas Entitlement Share of a defaulting Project
Participant transferred pursuant to this Section to a nondefaulting Project
Participant in accordance with clause (c) above, shall become a part of and
shall be added to the Gas Entitlement Share of each transferee Project
Participant effective on and as the date of transfer, and the transferee Project
Participant shall be obligated to pay for its Gas Entitlement Share increased
as aforesaid, as if the Gas Entitlement Share of the transferee Project
Participant in the PGP Gas Supply Agreement with FGU had been stated
originally to increase as aforesaid on the effective date of the transfer.
(e) In the event less than all of a defaulting Project Participant's
Gas Entitlement Share shall be sold or transferred pursuant to the foregoing
clauses of this Section 16, FGU shall, to the extent permitted by law, use its
reasonable best efforts to sell the remaining portion of a defaulting Project
Participant's Gas Entitlement Share on such terms and conditions as are
acceptable to FG U.
The defaulting Project Participant shall remain liable for all payments
to be made on its part pursuant to this Agreement, except that the obligation
of the defaulting Project Participant to pay FGU shall be reduced to the
extent that payments shall be received by FGU for that portion of the
defaulting Project Participant's Gas Entitlement Share which may be
transferred or sold as provided in this Section 16.
32
Each nondefaulting Project Participant whose payments hereunder are
increased as a result of the defaulting Project Participant's (or its successor's)
failure to take its Gas Entitlement Share or to make any required payments
hereunder shall have a cause of action against such defaulting Project
Participant for the amount of damages suffered as a result of default. FGU
shall reasonably cooperate with such nondefaulting Project Participant in
any action brought against the defaulting Project Participant upon the
receipt of an indemnification agreement satisfactory to FGU of any costs and
expenses it may incur in connection with such action.
SECTION 17. Other Default by Project Participant.
In the event of any default by Project Participant under any other
covenant, agreement or obligation of this Agreement other than Section 14
hereof, which shall be governed by Sections 15 and 16 hereof, FGU may bring
any suit, action, or proceeding in law or in equity, including mandamus,
injunction, specific performance, declaratory judgment, or any combination
thereof, as may be necessary or appropriate to enforce any covenant,
agreement or obligation of this Agreement against Project Participant. Such
remedies shall be in addition to all other remedies provided for herein.
SECTION 18. Default by FGU.
In the event of any default by FGU under any covenant, agreement or
obligation of this Agreement, Project Participant's remedy for such default
shall be limited to mandamus, injunction, action for specific performance or
any other available equitable remedy designed to enforce any covenant,
obligation or agreement of FGU hereunder as may be necessary or
appropriate.
SECTION 19. Abandonment of Remedy.
In case any proceeding taken on account of any default shall have been
discontinued or abandoned for any reason, the parties to such proceedings
shall be restored to their former positions and rights hereunder, respectively,
and all rights, remedies, powers and duties of FGU and Project Participant
shall continue as though no such proceedings had been taken.
SECTION 20. Waiver of Default.
Any waiver at any time by either FGU or Project Participant of its
rights with respect to any default of the other party hereto, or with respect to
any other matter arising in connection with this Agreement, shall not be a
waiver with respect to any subsequent default, right or matter.
33
SECTION 21.
Instruments.
Relationship to and Compliance with Other
(a) It is recognized by the parties hereto that FGU, in undertaking,
or causing to be undertaken, the planning, acquisition, and supply of Gas
hereunder, may be required to comply with the applicable requirements of
the Bond Resolution, the Gas Production Sharing Agreement, the Financial
Instruments and all licenses, permits and regulatory approvals necessary
therefor, and it is therefore agreed that the performance of FGU under this
Agreement is made subject to the terms and provisions of the Bond
Resolution, the Gas Production Sharing Agreement, Financial Instruments
and all such licenses, permits and regulatory approvals.
(b) FGU covenants and agrees to use its best efforts for the benefit
of Project Participant to comply in all material respects with all terms,
conditions and covenants of the Gas Production Sharing Agreement and all
licenses, permits and regulatory approvals relating thereto. FGU shall
diligently pursue all rights and remedies set forth in the Gas Production
Sharing Agreement and Project Participant shall fully cooperate with FGU in
such endeavor, perform such obligations as may be required by Project
Participant to enable FGU to do so, and pay all of the Costs for which it shall
be obligated hereunder.
SECTION 22. Measurement of Gas.
All Gas delivered hereunder shall be metered at the Point(s) of
Delivery by meters operated by Transporter, or as the parties shall otherwise
agree.
SECTION 23. Liability of Parties.
(a) Except as otherwise herein provided, FGU and Project
Participant shall each assume full responsibility and liability for the
maintenance and operation of their respective properties and each shall, to
the extent permitted by law, indemnify and save harmless the other from all
liability and expense on account of any and all damages, claims, or actions,
including injury to or death of persons arising from any act or accident in
connection with the installation, presence, maintenance and operation of the
property and equipment of the indemnifying party and not caused by the
negligence of the other party; provided that any liability which is incurred by
FGU hereunder and not covered, or not covered sufficiently, by insurance
shall be paid solely from the revenues of FGU derived from sales of Gas and
other services under this Agreement, and any payments made by FGU, or
which FGU is obligated to make, to satisfy such liability shall become part of
Costs. The indemnification provided for herein shall include any liability or
34
i--
!
obligations for which FGU is obligated to indemnify PGP pursuant to the Gas
Production Sharing Agreement.
(b) For purposes of any indemnification under this Section 23,
(1) promptly after the party seeking indemnification (the
"Indemnified Party") learns of any event or circumstance, including,
without limitation, any claim or assertion by a third party that, in the
judgment of the Indemnified Party, may give rise to a claim for
indemnification hereunder (each such claim being referred to as a
"Loss" and collectively as "Losses"), the Indemnified Party shall deliver
to the party from which indemnification is sought (the "Indemnifying
Party") a certificate (the "Certificate"), which Certificate shall:
(i) state that the Indemnified Party has incurred or
anticipates that it will incur a Loss for which such Indemnified
Party is entitled to indemnification pursuant to this Agreement;
and
(ii) specify in reasonable detail each individual item of
Loss included in the amount so stated, the date such item arose
or was incurred, the basis for any anticipated Loss or Losses and
the nature of the claim to which the Loss is related and the
computation of the amount to which such Indemnified Party
claims to be entitled hereunder;
provided, however, that any failure or delay by the Indemnified
Party in delivering a Certificate to the Indemnifying Party shall
not affect the Indemnified Party's right to indemnification under
this Section 23, except to the extent that the Indemnifying Party
is able to establish damages resulting directly from such failure
or delay.
(2) If the Indemnifying Party objects to the claim for the
indemnification by an Indemnified Party in respect of any Loss, the
Indemnifying Party shall, within thirty (30) days after receipt by the
Indemnifying Party of such Certificate, deliver to the Indemnified
Party a written notice to such effect and the Indemnifying Party and
the Indemnified Party shall, within the 3D-day period beginning on the
date of receipt by the Indemnified Party of such written objection,
attempt in good faith to agree upon the rights of the respective parties
with respect to each of such claim to which the Indemnifying Party
shall have so objected. If the Indemnified Party and the Indemnifying
Party shall succeed in reaching agreement on their respective rights
with respect to any of such claims, the Indemnified Party and the
35
Indemnifying Party shall promptly prepare and sign a memorandum
setting forth such agreement.
(3) Notwithstanding any prOVISIon hereof, if any claim for
any Loss is asserted against FGU hereunder, FGU may, at its option,
assume the defense of the Indemnified Party against such claim or
may undertake any remedial action required in connection therewith
or both (including the employment of counsel, and the payment of
expenses), provided, however, that any failure or delay by the
Indemnified Party in delivering such written notification to FGU of
any such occurrence, event or circumstance, other than the filing of
any such claim, action or proceeding, shall not affect the Indemnified
Party's right to indemnification under this Section 23, except to the
extent that FGU is able to establish its damages resulting directly
from such failure or delay.
(4) Until the Indemnifying Party shall have assumed the
defense of the Indemnified Party against such claim following the
delivery of such notice, the Indemnified Party may, but shall not be
obligated to, undertake the defense of such claim on behalf of and for
the account and risk of the Indemnifying Party, and if such
Indemnified Party is entitled to indemnification under this Section 23,
all legal or other expenses reasonably incurred by the Indemnified
Party shall be borne by the Indemnifying Party.
(5) Any Indemnified Party shall have the right to employ
separate counsel in any such action or claim and to participate in the
defense thereof, but except with respect to FGU, the fees and expenses
of such counsel shall not be at the expense of the Indemnifying Party
unless (i) the Indemnifying Party shall have failed, within ten (10)
days after having been notified by the Indemnified Party of the
existence of such claim as provided in the preceding sentence, to
assume the defense of such claim or to notify the Indemnified Party in
writing that it will assume the defense of such claim, or <W the
employment of such counsel has been specifically authorized in writing
by the Indemnifying Party, and in each case above, FGU whether as an
Indemnifying Party or an Indemnified Party shall have the right to
assume full control of the defense of the claim or Loss in the manner
provided below.
(6) An appealable final judgment will not give rise to an
indemnification payment obligation if and only to the extent that the
Indemnifying Party diligently undertakes an appeal of such final
judgment and posts a supersedeas bond or takes other action which
prevents the execution of the final judgment pending the appeal.
36
Notwithstanding the foregoing (x) any liability or Loss incurred by
FGU hereunder shall be paid in the manner provided above from the
revenues of FGU derived from sale of Gas or other services hereunder,
as a part of the Costs; (y) FGU shall in all events, at its option, have
the right to assume the defense of any claim for any Loss whether
against the Indemnifying Party or as an Indemnified Party and shall
be entitled to be reimbursed for the full amount of any such costs of
defense including fees and expenses of counsel in trial or on appeal;
and (z) as a part of its control of the defense of any claim for Loss, FGU
shall have the full right and authority to compromise or settle any
such claim or Loss for and on behalf of and for the account and risk of
the Indemnifying Party, the Indemnified Party and/or itself.
(7) Mter any such claim has been filed or initiated, each
party shall make available to the other and its attorneys and
accountants all pertinent information under its control relating to such
claim which is not confidential or proprietary in nature or which is
made available under the terms of a confidentiality agreement or is
delivered or obtained under appropriate protective orders satisfactory
to such party and the parties agree to render to each other such
assistance as they may reasonably require of each other in order to
facilitate the proper and adequate defense of any such claim.
(8) In no event shall the indemnification obligations of the
Indemnifying Party under this Section 23, whether based on contract,
warranty, tort (including negligence), strict liability or otherwise,
extend to or include special, incidental, consequential or punitive
damages of any kind whatsoever, except to the extent that the
Indemnified Party is obligated to pay any of such damages to a third
party under any claim for which such indemnification is sought.
SECTION 24. Sale of Project Participant's Excess Gas Entitlement
Share.
In the event Project Participant shall determine that all or any part of
the Gas which can be supplied from Project Participant's Gas Entitlement
Share are in excess of the requirements of Project Participant, or unless at
the written request of Project Participant, FGU shall use its best efforts to
sell and transfer on behalf of such Project Participant for any period of time
all or any part of such excess Gas to such other Project Participant or Project
Participants as shall agree to take such excess Gas, at such prices as may be
agreed to, provided, however, that in the event the other Project Participants
do not agree to take the entire amount of such excess, FGU shall have the
right, to the extent permitted by law, to dispose of such excess to other
parties. If all or any portion of such excess of the Gas sold hereunder or
37
Project Participant's Gas Entitlement Share, is sold pursuant to this Section
24, Project Participant's Gas and/or Gas Entitlement Share and resulting
payments hereunder shall not be reduced, and Project Participant shall
remain liable to FGU to pay the full amount due as if such sale had not been
made; except that such liability shall be discharged to the extent that FGU
shall receive payment for such excess from the purchaser or purchasers
thereof and that any amounts received by FGU as payment for such excess
which is greater than the liability owed by Project Participant to FGU in
respect of such excess shall be promptly paid by FGU to Project Participant.
Project Participant shall not take any action or fail to take any action which
would adversely affect the exclusion from gross income for Federal income
tax purposes of interest on any tax-exempt bonds of FGU, from the gross
income of the holders thereof and/or Project Participant.
SECTION 25. Assignment of PGP Gas Supply Agreement; Sale of
Project Participant's System.
(a) This Agreement shall inure to the benefit of and shall be binding
upon the respective successors and assigns of the parties to this Agreement;
provided, however, that, except as provided in Section 16 hereof, in the event
of a default, and except for the assignment and pledge authorized by
Section 13 hereof and by paragraph (b) of this Section 25 and for the
assignments authorized by paragraph (c) of this Section 25, neither this
Agreement nor any interest herein shall be transferred or assigned by either
party hereto except with the consent in writing of the other party hereto.
(b) Project Participant acknowledges and agrees that FGU may
assign and pledge to the trustee designated in the Bond Resolution or any
party to which it may be obligated under this Agreement, the Gas Production
Sharing Agreement or under the Financial Instruments, all or any part of its
right, title, and interest in, to and under this Agreement, and all payments to
be made to FGU under the provisions of this Agreement as security for the
payment of the principal (including sinking fund installments) of, premium, if
any, and interest on Bonds, obligations thereunder, and may deliver
possession of this Agreement to an agent of such party in connection
therewith, and, upon such assignment and pledge, FGU may grant to such
party any rights and remedies herein provided to FGU, and thereupon any
reference herein to FGU shall be deemed, with the necessary changes in
detail, to include such trustee which shall be a third party beneficiary of the
covenants and agreements of Project Participant herein contained.
(c) Project Participant agrees that, except as otherwise provided
herein, it will not sell, lease, abandon or otherwise dispose of all or
substantially all of its System except upon ninety (90) days prior written
notice to FGU and, in any event, will not sell, lease, abandon or otherwise
38
dispose of the same unless the following conditions are met: (i) Project
Participant shall, subject to the terms and conditions of the Gas Production
Sharing Agreement, assign this Agreement and its rights and interest
hereunder to the purchaser or lessee of said System, if any, and any such
purchaser or lessee shall assume all obligations of Project Participant under
this Agreement and shall have the financial capacity to do so; and (ii) FGU
shall be permitted by then applicable law to sell Gas to said purchaser or
lessee, if any; and (iii) FGU shall by appropriate action determine, in its sole
discretion, that such sale, lease, abandonment or other disposition will not
adversely affect the then existing ratings on the Bonds or FGU's ability to
meet its obligations under the Gas Production Sharing Agreement or the
Bond Resolution and will not adversely affect the value of this Agreement as
security for the payment of Bonds and interest thereon or the Gas Production
Sharing Agreement, or affect the exclusion from gross income of interest on
the Bonds for federal income tax purposes or the exclusion of such interest as
to bonds or other obligations which could be issued in the future.
Notwithstanding the foregoing, but subject to the provisions of clause (iii)
above, Project Participant may sell, lease, abandon or otherwise dispose of all
or substantially all of its System and may assign this PGP Gas Supply
Agreement and its rights and interests hereunder and be relieved of its
obligations under this PGP Gas Supply Agreement upon the payment of
sufficient funds, as determined by FGU, to cause the purchase of a pro rata
part of the outstanding Bonds equal to Project Participant's then existing Gas
Entitlement Share.
(d) Project Participant, in making or accepting such assignment,
shall agree to assume any costs incurred in reporting the assignment as a
"material event" or such other event pursuant to the Rule or any successor
provision, or any law, judicial decision, regulation, rule or policy now or
hereafter imposed by the United States of America, the State of Florida, or
any political subdivision or agency of either having jurisdiction over such
matters, requiring any such reporting.
(e) Notwithstanding any other provision of this Section 25, Project
Participant agrees that it will not assign or transfer any of its rights
hereunder without first obtaining and delivering to FGU and the bond
trustee serving as such under the Bond Resolution, an opinion of counsel
nationally recognized as experts on the subject of municipal bonds and
acceptable to the Trustee and FGU, to the effect that such transfer will not
cause interest on the Bonds to be includable in gross income of the holders
thereof for federal income tax purposes.
39
SECTION 26. Termination or Amendment.
(a) This Agreement shall not be terminated by either party under
any circumstance, whether based upon the default of the other party under
this Agreement or any other instrument or otherwise except as specifically
provided in this Agreement.
(b) This Agreement shall not be terminated, amended, modified, or
otherwise altered in any manner that will adversely affect the security for
any obligations authorized by FGU afforded by the provisions of this
Agreement upon which the owners from time to time of the Bonds or PGP
shall have relied as an inducement to purchase and hold the Bonds or enter
into the Gas Production Sharing Agreement, so long as any of the Bonds or
such obligations or the obligations of the Gas Production Sharing Agreement
or Financial Instruments entered into by FGU, in its name, or on behalf of
some or all of Project Participants shall rely thereupon. So long as any of
such obligations are outstanding or until adequate provisions for the
payment thereof have been made in accordance with the provisions of the
instruments authorizing such obligations, this Agreement or Financial
Instruments, shall not be terminated, amended, modified, or otherwise
altered in any manner which will reduce the payments pledged as security for
such obligations or extend the time of such payments provided herein or
which will in any manner impair or adversely affect the rights of the owners
from time to time of such obligations.
(c) No PGP Gas Supply Agreement entered into between FGU and
another Project Participant may be amended so as to provide terms and
conditions substantially different from those herein contained, except upon
written notice to and written consent or waiver by each of the other Project
Participants, and upon similar amendment being made to the PGP Gas
Supply Agreement of any other Project Participants requesting such
amendment after receipt by such Project Participant of notice of such
amendment. In such event, no such amendment shall cause any increase in
Costs or other increased obligations or burdens to those Project Participants
who do not sign substantially similar amendments.
(d) It is recognized by FGU and Project Participant that in the
future, conditions may arise which will cause certain of the provisions of
Sections 5, 6, 7 and 25 hereof to be inappropriate. In such event, FGU and
Project Participant agree to negotiate in good faith and amend such
provisions to reflect conditions prevailing at such times, provided that such
amendments shall not (i) adversely affect the payment of Debt Service on the
Bonds or the obligations under the Gas Production Sharing Agreement, and
(ii) in the opinion of FGU's then existing bond counsel, adversely affect the
40
exclusion of interest on the Bonds from gross income for federal income tax
purposes.
SECTION 27. Force Majeure.
(a) In the event that either PGP, FGU or Project Participant
("Party" or "Parties"), is rendered unable, wholly or in part, by force majeure
to carry out its obligations under this Agreement or any subsequent service
agreement between the Parties contemplated herein, other than the
obligation of Project Participant to make payments due hereunder, including
the payment of Costs and other amounts due under Sections 3 and 4, it is
agreed that with respect to PGP, the terms and provisions of the Gas
Production Sharing Agreement shall apply, and with respect to this
Agreement, upon such Party giving notice and full particulars of such force
majeure in writing to the other Party as soon as possible after the occurrence
of the cause relied on, then the obligations of the Party giving such notice
(other than the obligation to make payments due), so far as they are affected
by such force majeure, shall be suspended during the continuance of any
inability so caused but for no longer period, and such cause shall as far as
possible be remedied with all reasonable dispatch. It is further agreed that
except for the obligation to make payments due, neither FGU nor Project
Participant shall be liable to the other for any damage occasioned by force
majeure.
(b) In the event of any nonperformance caused by any of the forces
described in clause (c) the Party affected shall within twenty-four (24) hours
promptly notify the other Party verbally, and within two (2) working days of
nonperformance provide the other Party with written confirmation of the
nature, cause, date of commencement and anticipated extent of such
nonperformance.
(c) The term "force majeure" shall have the meaning as set forth in
the Gas Production Sharing Agreement, to the extent applicable to the
parties hereto, and as employed in this Agreement shall mean acts of God,
strikes, lockouts, or other industrial disturbances, acts of the public enemy,
wars, blockades, insurrections, riots, epidemics, landslides, lightning,
earthquakes, fires, storms, floods, freezes, washouts, arrests and restraints of
governments and people, civil disturbances, explosions, breakage or accidents
to machinery or lines of pipe, the necessity for making repairs or alterations
to machinery or lines of pipe (other than regularly scheduled or routine
maintenance), freezing of wells or lines of pipe, planned or unplanned
outages, disruptions or curtailments by Transporter, Project Participant or
other parties in the transportation of the Gas, partial or entire failure of
source of supply, acts of civil or military authority (including, but not limited
to, courts or administrative or regulatory agencies), and any other similar or
41
related cause, whether or not enumerated herein, and whether caused or
occasioned by or happening on account of the act or omission of FGU or
Project Participant or any other person or concern, not reasonably within the
control of the Party claiming suspension and which by the exercise of due
diligence such Party is unable to prevent or overcome; such term shall
likewise include, without limitation;
(1) in those instances where either Party is required to obtain
servitude, rights of way grants, permits or licenses to enable such
Party to fulfill its obligations hereunder, the inability of such Party to
acquire, or the delays on the part of such Party in acquiring, at
reasonable cost and after the exercise of reasonable diligence, such
servitude, rights of way grants, permits or licenses; and
(2) in those instances where either Party is required to
furnish materials and supplies for the purpose of constructing or
maintaining facilities or is required to secure grants or permissions
from any governmental agency to enable such Party to fulfill its
obligations hereunder, the inability of such Party to acquire, or the
delays on the part of such Party in acquiring, at reasonable cost and
after the exercise of reasonable diligence, such materials and supplies,
permits and permissions.
(d) The settlement of strikes or lockouts shall be entirely within the
discretion of the Party having the difficulty, and the above requirement that
any force majeure shall be remedied with all reasonable dispatch shall not
require the settlement of strikes or lockouts by acceding to the demands of
the opposing Party when such course is inadvisable in the discretion of the
Party having the difficulty.
(e) If a force majeure prevents or curtails PGP's or FGU's delivery
of Gas under the Gas Production Sharing Agreement, FGU shall use
reasonable efforts to locate and make available to Project Participant Gas
from an alternative source at the then prevailing prices as FGU may
reasonably determine, until the force majeure affecting the supply of Gas has
ended.
(D Consistent with Section 4(d), a force majeure affecting the
supply of Gas or its transportation or delivery to Project Participant shall not
relieve Project Participant of its payment obligations under this Agreement
including, without limitation, its obligations under Section 3(b) and the
payment for any replacement Gas, at the then prevailing price.
42
SECTION 28. Project Participant Representative.
Project Participant shall appoint from time to time by motion or
resolution of its governing body and provide to FGU evidence thereof, and
written notice of the name, mailing address, telephone number and facsimile
transmission number of one or more employees or agents with authority to
give instructions required by this Agreement and otherwise exercise decisions
by Project Participant required under this Agreement (the "Project
Participant Representative").
(a) Project Participant Representative, or its designee as provided
below, shall represent Project Participant in giving and receiving notices and
directives regarding the routine operational decisions, which decisions may
be relied upon by FGU and shall be contractually binding upon Project
Participant.
(b) Project Participant Representative may also, if so stated,
represent Project Participant in giving and receiving notices, Directives,
taking actions or making decisions required or that may be exercisable under
this Agreement or Financial Products provided by any Financial Instrument
hereunder, in each case, for and on behalf of Project Participant. Such
Financial Products may involve those risks and have characteristics similar
to those set forth in Exhibit A hereto. The decisions of Project Participant
Representative may be relied upon by FGU and such action and the due
authorization, execution and delivery of such Directives shall be contractually
binding upon Project Participant.
(c) Project Participant Representative may from time to time
designate an operational representative to discharge its duties and
obligations as set forth in subsection (1) above.
(d) Notices and directives between Project Participant
Representative, its designee, and FGU may be transmitted orally when not
required to be in writing, provided that all such notices and directives shall
be promptly confirmed by a written notice as authorized by this Agreement.
SECTION 29. Notice and Computation of Time.
Any notice or demand under this Agreement shall be in writing, and
shall be deemed given in writing and properly given if sent by (i) telegraphic,
cable or wireless transmission (including by telecopy, facsimile, e-mail or
other electronic transmission, with appropriate hard copy being made
available) or (ii) delivery to an overnight courier or delivery service company
in a sealed prepaid wrapper, or (iii) certified mail, postage prepaid, in each
case to the number or address set forth below, or to such other number or
43
address as a party hereto may give the other by notice given in accordance
with the provisions in this section.
To FGU:
Florida Gas Utility
Attn: General Manager
4619 NW 53rd Avenue
Gainesville, Florida 32606
To Project Participant:
Clearwater Gas System
400 N. Myrtle Avenue
Clearwater, FL 33755
Attention: Mr. Brian Langille
Unless otherwise specified herein, a notice is considered effectively given
when it is received by the intended recipient, or when the intended recipient
refuses delivery. If a notice is mailed by certified mail, or sent by courier or
delivery service, to the address of the intended recipient specified above (or
such other address as the intended recipient has previously specified in a
written notice pursuant to the provisions hereoD, the notice shall be
presumed to have been received or refused by the intended recipient on the
date indicated on the receipt or return invoice.
SECTION 31. Applicable Law; Construction.
This Agreement is made under and shall be governed by the laws of
the State of Florida. Headings herein are for convenience only and shall not
influence the construction hereof.
SECTION 32. Severability.
If any section, paragraph, clause or provision of this Agreement shall
be finally adjudicated by a court of competent jurisdiction to be invalid, the
remainder of this Agreement shall remain in full force and effect as though
such section, paragraph, clause or provision or any part thereof so
adjudicated to be invalid had not been included herein.
{Remainder of page intentionally left blank.}
44
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their proper officers respectively, being
thereunto duly authorized, and their respective seals to be hereto affixed, as
of the day and year first above written.
FLORIDA GAS UTILITY
By:
Title:
Attest:
Title:
(Seal)
CITY OF CLEARWATER, FLORIDA
Project Participant
Countersigned:
By:
City Manager
Mayor-Commissioner
Approved as to form:
Attest:
Assistant City Attorney
City Clerk
# 222488Lv2
45
Exhibit A
CHARACTERISTICS OF FINANCIAL PRODUCTS
1. TYnes of Financial Products. The General Manager of
FGU, in accordance with the Financial Derivatives Policy of FGU, may
approve, and Project Participant Representative shall approve on behalf of
Project Participant, Financial Products which may consist of one or more of
the following {including combinations thereoD, without limitation:
(a) Swaps and swap options or swa{>tions, pursuant to which
(i) the price of a commodity is converted from a fixed price to a floating price
or from a floating price to a fixed price, or (ii) the interest rate on debt issued
to acquire or prepay the cost of Gas or interests therein may be synthetically
converted from a floating rate to a fixed rate, or a fixed rate to a floating rate
or from one floating rate to another.
(b) Options or Forwards. pursuant to which a commodity can
be purchased or sold for future delivery on an optional or committed basis
and on a physical or cash-settled basis;
(c) Caps. Floors or Collars. pursuant to which the price of a
commodity can be limited to a maximum price, a minimum price, or a range
between a maximum and a minimum price and the interest rate on debt may
be limited to a maximum rate, a minimum rate on a range between a
maximum and minimum rate;
(d) Futures Contracts or Options on Futures Contracts,
pursuant to which a commodity can be purchased or sold for future delivery
on a committed or optional basis, and on a physical or cash-settled basis,
through exchange traded and regulated transactions;
(e) Other Hedg-es, pursuant to which the price or price
fluctuations of a commodity, interest rates on debt used to prepay or finance
the acquisition of a commodity or interests therein, or to the creditworthiness
of a gas supplier or counterparty, can be established or mitigated, either in
whole or in part, so as to reduce risk; and
(f) Combinations, including any combination of the foregoing.
For purposes hereof, a "commodity" includes, without limitation, natural gas
of any kind (in place or delivered) and any precursor or by-product of natural
gas.
2. Terms of Financial Products. Financial Products may be (i)
established and regulated pursuant to the rules and regulations of exchanges
upon which such products trade or (ii) be documented and evidenced by
written financial contracts between the parties thereto pursuant to forms of
agreements established by industry associations, including, without
limitation, the International Swaps and Derivatives Association, Inc. (ISDA),
such as ISDA's various forms of Master Agreement (inclusive or any schedule
or supplement, credit support document, and confirmations related thereto).
3. Risks assumed in Financial Products. Inherent in Financial
Products will be a variety of risks including, without limitation, the following:
(a) Credit risks, including the risk that adverse financial
changes occur with respect to a gas supplier, a counterparty, an exchange, or
a clearinghouse (including bankruptcy) that would tend to reduce or negate
the benefit of the Financial Product.
(b) Pricing- risks, including the risk of not obtaining the best
or most favorable price available for the Financial Product due to market
conditions, lack of pricing liquidity or transparency, and macroeconomic
events.
(c) Basis risks, including the risk that the Financial Product
is not a complete or effective hedge with respect to a commodity, its price or
the interest rate a purchaser may pay on its underlying debt.
(d) Termination risks, including the risk that the Financial
Product must or should be liquidated or terminated early in light of the terms
of the Financial Product, which, in turn, may result in a significant payment
by, or loss to, a party due to then current market conditions, even though the
party's actions did not cause or trigger the termination. Termination can
occur because of a number of factors, including (i) a failure of a party to
perform its obligations (whether related to payment, delivery, providing
collateral or margin, or otherwise) under the terms of a Financial Product or
some other agreement to which the Financial Product refers (which may
include the default by other Project Participants whose payments are
intended in part to make required payments under the hedge agreements),
(ii) the misrepresentation of a party to a Financial Product, (iii) cross
defaults, (iv) the bankruptcy, or decline in the creditworthiness, of a party to
a Financial Product, (v) the determination that a Financial Product is illegal
or unenforceable whether due to a change in law or regulation or otherwise,
and (vi) other factors. Following a termination, a party can be unhedged
unless it terminates the transaction or commodity being hedged or
establishes a new hedge.
(e) Operating- risks, including the risk that the Financial
Product may increase costs or present new or unusual accounting, tax or
2
operating difficulties that require adaptation of existing systems, processes
and policies.
(f) Leg-al risks, including the risk that the Financial Product
is unenforceable (whether due to a change in law or regulation or otherwise)
or is not adequately documented to reflect the parties' agreement.
# 222488Lv2
3
Exhibit B
DESCRIPTION OF SYSTEM
The City of Clearwater, Florida was incorporated in 1923 by Chapter 9710, Special Laws of
Florida, as amended. The Clearwater Gas System (CGS) is owned and operated as an
enterprise utility by the City of Clearwater. CGS operates over 650 miles of underground
gas main and handles the supply and distribution of both natural and propane (LP) gas
throughout northern Pinellas County and western Pasco County. As a "full service" gas
utility, CGS provides gas appliance sales and service, installation of inside customer gas
piping, domestic and commercial gas equipment service, construction and maintenance of
underground gas mains and service lines, and 24 hour response to any gas emergency call
within the service area. The Clearwater Gas System is regulated for safety by the Florida
Public Service Commission and the Federal Department of Transportation.
CGS has been serving customers in the Clearwater area for over 78 years (since 1923) when
operations were begun with a manufactured gas plant operation from coal and coke. In
1959, when natural gas transmission lines were finally extended to peninsula Florida, CGS
discontinued the manufacturing of gas and began receiving piped natural gas from Florida
Gas Transmission.
Clearwater Gas System serves over 18,000 customers in a 298 square mile service territory,
which includes 17 municipalities as well as the unincorporated areas of north and central
Pinellas County and western Pasco County. The Pinellas County service territory is 181
square miles and extends generally from Ulmerton and Walsingham Roads on the South to
the Pasco County line on the North and from the Gulf of Mexico on the West to the
Hillsborough County line on the East. This includes all of the Pinellas beach communities
south to Redington Beach. The Pasco County service territory is 117 square miles and
extends from the Gulf of Mexico on the West inland about 10 miles to just West of State
Road 41 and Land 0' Lakes (generally along the right-of-way for the proposed North
Suncoast Parkway) and from the Pinellas and Hillsborough County lines on the South to
generally State Road 52 on the North.
Clearwater Gas System prides itself in being a competitive and public service-minded
utility, making economical and environmentally-friendly gas, which is made in America,
available in our community for all of the homes and businesses in our service area, with
special focus on the residential customers who make up nearly 85% of our customer base.
, City of Clearwater, Florida
Statement of Revenues, Expenses, and Changes in Fund Net Assets
Proprietary Funds
For the Year Ended September 30, 2003
Operating revenues:
Sales to customers
Service charges to customers
User charges to customers
Billings to departments
Rentals
Total operating revenues
Business-type
Enterprise
Water
and sewer Gas Solid Waste
Utility Utility Utility
$ 38,639,890 $ 28,226,159 $ 15,696,878
485,228 1,534,805 96,645
39,125,118 29,760,964 15,793,523
7,263,595 4,053,181 4,428,453
6,103,150 13,494,849 149
1,840,133 128,982 330,421
690,357 492,089 2,655,739
1,591,969 74,587 60,635
4,893,497
4,972,309 1,427,298 225,112
5,113,190 1.861,820 1,143,710
1,780,814 206,474 10,073
570,771 5,230
127,429 140,344 53,496
4,295
241,670 140,775 140,810
4,054,401 239,493 66,472
58,826 4,103
352,817 110,668 38,289
406,250 319,100 135,430
1.764,641
44,759 68.541 19,833
6.988,140 3,623,928 471,736
34,582,843 25,156,734 14.209,452
4,542,275 4,604,230 1,584,071
Operating expenses:
Personal services
Purchases for resale
Operating materials and supplies
Transportation
Utility service
Dumping charges
Depreciation
Interfund administrative charges
Other current charges:
Professional fees
Advertising
Communications
Printing and binding
Insurance
Repairs and maintenance
Rentals
Miscellaneous
Data processing charges
Taxes
Provision for estimated uncollectable accounts
Total other current charges
Total operating expenses
Operating income (loss)
2
pi I Jilt /0 '"
'" (];1leaJrtWater 6as S 'stem Ovensie~ Data
Remarks/Qualifiers
Population of Service Area
298 Pinellas 181 + Pasco 117 (42.3 mi. NE - SW)
576,669 Per 2001 PEDC Data (from 2002 PERC Summary)
Pinellas 434,200 + Pasco 142,469
Service Area in Square Miles
Dwelling Units in Service Area
257,184 Per 2001 PEDC Data= 2.24 Occupants/Unit
Pinellas 193,581 (2.24) + Pasco 63,604 (2.24)
Customers - Total (NG+LP)
Residential Firm (NG)
General Service Firm (NG)
Interruptible (NG)
Propane (LP)
18,454
2,114
14
2,002
14,324
% of Dwelling Units Using CGS NG - Overall 5.6%
Pinellas 6.5%
Clearwater 12.8%
Sept., 2004 Billings (Pin. 16,223+ Pasco 2,231)
"(Subtotal NG 16,452= Pin. 14,483 & Pasco 1,969)
"
" (Pin. 1,740 + Pasco 262/1,915 resl. & 87 coml.)
14,324 Residential Cust.!257,184 Dwelling Units
12,535 Residential Cust.!193,581 Dwelling Units
6,362 Residential Cust.! 49,674 Dwelling Units
Miles of Natural Gas Main
729.0 Sept., 2004 Actual (Pin, 645.2 & Pasco 83.8)
22.6 Sept., 2004 Actual (Pin. 22.4 & Pasco 23.5)
NG Customers/Mile of Main
% of Residential Firm Customers:
With Water Heater
With Gas Cooking
With Gas Heating
58.8% Estimated (Based on Aug.l99 Customer Survey)
53.5%
30.5%
Annual Heating Degree Days
518 10 Yr. Tampa NOAA Data thru Sept., 2004
3,703 10 Yr. Tampa NOAA Data thru Sept. 2004
Annual Cooling Degree Days
Peak Contract Demand (Dekatherms/Day)
12,000
12,380
All Time Peak Load (Dekatherms/Day)
Annual Peak Load (Dekatherms/Day)
10,645
12,147
10,941
Annual Gas Sales (NG Therms) 21,538,066
(LP Gallons) 499,977
Annual Load Factor vs. Peak 54.2%
Annual Load Factor vs. Contract 68.4%
.with relinquishment 79.8%
Average Monthly Load Factor 80.1 %
Avg. Single Family Home Consumption 273
(Therms/year)
Annual Gas Revenues (Millions) $32.6M
Employees (Actual Full-time Equivalent) 89.4
Customers Served/Authorized Employee 205.0
Revised 11/08/04
November - April
February 4, 1996 Actual (2,131 was wholesale to
TECO PGS & CGS net was 10,249)
FY 03/04 (January 10, 2004)
FY 02/03 (January 24, 2003)
FY 01/02 (March 4, 2002)
FY 03/04 Actual
FY 03/04 Actual
FY 03/04 Actual
FY 03/04 Actual
FY 91/92 Study (FY 03/04 Actual = 220 incl.
active, but dormant accounts)
FY 03/04 Actual
FY 03/04 Actual (Budget Authorized 90 FTE)
September, 2004 Actual
# 222488Lv2
U:\My Documents\Word\CGSGENL\FY OI-02\CGS Overview Data,doc
3
Exhibit C
PROJECT PARTICIPANT OUTSTANDING OBLIGATIONS
Long Term Debt
Gas System Revenue Bonds
$14,605,000 Gas System Revenue Bonds and Gas System Revenue
Refunding Bonds, Series 1997 A & Series 1997B; serial bonds due in
annual installments of $555,000 due September 1, 2005, to $785,000 due
September 1, 2013, interest at 4.375% to 5.00%; 5.25% term bonds in
the amount of $790,000 maturing September 1, 2017; and 5.30% term
bonds in the amount of $4,560,000 maturing September 1, 2027.
(Ordinance 5118-91,5665-94,6030-96; Resolution 97-54)
$8,020,000 Gas System Revenue Refunding Bonds, Series 1998; serial
bonds due in annual installments of $35,000 due September 1, 2005, to
$50,000 due September 1, 2012, interest at 4.00% to 4.60%; additional
serial bond annual installments ranging from $620,000 to $755,000 from
September 1,2015 to September 1, 2019, interest at 4.75% to 4.90%;
4.70% term bonds in the amount of $645,000 maturing September 1,
2014; and 5.00% term bonds in the amount of $3,410,000 maturing on
September 1,2023. (Ordinance 5118-91,6188-97; Resolution 98-09)
$8,890,000 Gas System Revenue Refunding Bonds, Series 2004, serial
bonds due in annual installments of $160,000 due September 1, 2005, to
$1,575,000 due September 1, 2026, interest at 2.00% to 4.375%.
(Ordinance 5118-91,7191-03; Resolution 03-36)
# 222488Lv2
$11,345,000
$7,825,000
$8,870,000
Exhibit D
FORM OF
NATURAL GAS PRODUCTION SHARING AGREEMENT
DRAFT #8 - 9/21/04
PRMLEGED AND CONFIDENTIAL
FOR DISCUSSION PURPOSES ONLY
Compared to 9/16/04 (Draft #7)
NATURAL GAS PRODUCTION SHARING
AGREEMENT FOR GAS SUPPLY POOL NO.1
By and Between
PUBLIC GAS PARTNERS, INC.
And
[INSERT NAME OF MEMBER]
DATED AS OF NOVEMBER 1, 2004
I
L__________
HEADING
RECITALS
ARTICLE 1
Section 1.1
Section 1.2
Section 1. 3
Section 1.4
Section 1.5
Section 1. 6
Section 1. 7
Section 1.8
Section 1. 9
Section 1.10
Section 1.11
Section 1.12
Section 1.13
ARTICLE 2
ARTICLE 3
Section 3.1
Section 3.2
ARTICLE 4
Section 4.1
Section 4.2
Section 4.3
Section 4.4
ARTI CLE 5
Section 5.1
Section 5.2
Section 5.3
Section 5.4
Section 5.5
ARTICLE 6
ARTICLE 7
ARTICLE 8
ARTICLE 9
Section 9.1
Section 9.2
DRAFT #8 - 9/21/04
PRIVILEGED AND CONFIDENTIAL
FOR DISCUSSION PURPOSES ONLY
Compared to 9/16/04 (Draft #7)
TABLE OF CONTENTS
Pai!e
........................................................................................................... 1
CONSTRUCTION AND INTERPRETATION......... ............................. 5
Recitals Incorporated ................................... .............. ........................... 5
Exhibits..... ................. ................................... .......... ............................... 5
References.................................................................,............................. 5
Number and Gender ......................... ............ ...........,. ............................ 5
Headings...................................................................,............................. 5
Severability............................................................................................ 5
Resolution of Disputes, Arbitration and Mediation..............................6
Choice of Law ...........................................................,............................. 6
Venue,.............................................................,....................................... 7
Interrelatedness of Production Sharing Agreements ...........................7
Entirety of Agreement........... ............................ ....................................8
Preparation of Agreement.. .............................. ................ ..... ...............9
Definitions ........................... ............................... ....................................9
DEFINITIONS.................. ..... ........................,.. ............................ .........9
REPRESENTATIONS AND WARRANTIES... ................................. ..16
Representations and Warranties of the Member................................ 16
Representations and Warranties of Public Gas Partners ..................20
GOVERNANCE AND OPERATIONAL STRUCTURE......................22
Governing Body of Public Gas Partners..............................................22
Committees........................................................................................... 22
Management of Public Gas Partners' Operations and Mfairs...........23
Operating Committee For Gas Supply Pool No. 1..............................24
CHARACTER OF OBLIGATIONS.... .......... ............ ............................ 25
Sale and Delivery of Gas or Cash ........................................................25
Payment of Costs.................... ......................... .................. ................... 26
Sharing of Costs....................... ........................ ....................................27
True-Ups............................................................................................... 27
Gas Supplies Held by Public Gas Partners.........................................28
QUANTITIES.. ................................... ................. ........ .........................29
POINTS OF DELIVERy..................... ............... ...........................,......30
TITLE ................... ......... .......................... .............. ...............................30
MEASUREMENT AND SPECIFICATIONS ...... .........................,......30
Measurement........................................................................................ 31
Quality Specifications.......................................................................... 31
I
ARTICLE 10
ARTICLE 11
Section 11.1
Section 11.2
Section 11.3
Section 11.4
Section 11.5
Section 11.6
Section 11. 7
ARTICLE 12
Section 12.1
Section 12.2
Section 12.3
Section 12.4
Section 12.5
Section 12.6
ARTICLE 13
Section 13.1
Section 13.2
Section 13.3
Section 13.4
Section 13.5
Section 13.6
ARTICLE 14
Section 14.1
Section 14.2
Section 14.3
Section 14.4
Section 14.5
Section 14.6
Section 14.7
Section 14.8
Section 14.9
ARTICLE 15
Section 15.1
Section 15.2
Section 15.3
ARTICLE 16
ARTICLE 17
DRAFT #8 - 9/21/04
PRIVILEGED AND CONFIDENTIAL
FOR DISCUSSION PURPOSES ONLY
Compared to 9/16/04 (Draft #7)
HEDGING ........... .............. ......................... .......... ....................... ..... .... 31
ANNUAL BUDGET PROCESS AND PRICING OF DELIVERIES ..32
Annual Budget Process For Pool-Specific Costs .................................32
Annual Budget Process For Non-Pool-Specific Costs .........................33
Budget Amendments..... ..... ................................ ..................................33
Allocation of Pool-Specific Costs to the Member................................. 33
Allocation of General Costs to the Member ........................................33
Allocation of Individual Costs................... ........... ................................ 34
Categories of Costs ............ ..............;........ ............ ....................... ..... .... 34
COMPONENTS OF MONTHLY BILLINGS......................................35
Acquisition Costs of Supply........................ ............. ............................ 35
Ongoing Capital Development Requirements.................................... 35
Gas Supply Pool No.1 Operating Costs ..............................................36
Costs of Outside Services..................................................................... 37
Manager Fees................. .............................. .......... .................... .......... 37
Contingency Reserves.. ...................... ........... ........... ............................ 38
BILLING AND PAYMENT................. .......... ..........., ........................... 38
Timing.........,.............................................................,........................... 38
Late Payment ................................................ ........... ............................ 39
Disputed Amounts ................ ........................ ............ ........................... 39
Audit Rights.. ...................................... .......... ............. .......................... 40
Status of Payment Obligations......... ............ ............... ........................ 40
Nature of Payment Obligation........ ............... ........... ..........................42
FAILURE TO PERFORM AND DEFAULT........................................43
Default by Public Gas Partners and Remedies...................................43
Default by the Member ..................... ............ ...........,... ........................ 44
Continuing Obligation of the Member ................................................45
Right of Public Gas Partners to Suspend Service...............................45
Termination and Transfer of the Member's
Participation Share Following Default..........................................46
Step- Up Requirements... ...................................... ................................48
Termination of the Member's Participation
Share Following Prepayment......... ................. .............................. 50
. Abandonment of Remedy ..........,.......................................................... 51
Waiver of Default................................................................................. 51
FORCE MAJEURE ...................,.............. ................ ............................ 51
Suspension of Obligations.........,..............................,........................... 51
Force Majeure in the Context of This Agreement ..............................52
Force Majeure Defined..............,. ................ .............,. .......................... 52
EXCLUSIVITY AND AUTHORIZATION FOR ACQUISITIONS .....53
SUCCESSION AND ASSIGNMENT ..................................................55
11
Section 17.1
Section 17.2
Section 17.3
ARTICLE 18
Section 18.1
Section 18.2
Section 18.3
Section 18.4
Section 18.5
Section 18.6
ARTICLE 19
Section 19.1
Section 19.2
Section 19.3
Section 19.4
Section 19.5
Section 19.6
ARTICLE 20
Section 20.1
Section 20.2
Section 20.3
Section 20.4
Section 20.5
Section 20.6
ARTICLE 21
Section 21.1
Section 21.2
Section 21.3
ARTICLE 22
Section 22.1
Section 22.2
ARTICLE 23
Section 23.1
Section 23.2
ARTICLE 24
ARTICLE 25
ARTICLE 26
ARTICLE 27
DRAFT #8 - 9/21/04
PRIVILEGED AND CONFIDENTIAL
FOR DISCUSSION PURPOSES ONLY
Compared to 9/16/04 (Draft #7)
Succession............................................................................................. 55
Assignment........................................................................................... 55
Third Party Beneficiaries ........................ ............ ................................ 56
SPECIAL COVENANTS.. ......................... ............. ............... .... ....... .... 56
Rates, Fees, and Charges of the Member............................................56
General Tax Covenant of Public Gas Partners................................... 56
Continued Existence of the Member ...................................................57
Continued Existence of Public Gas Partners ......................................57
Covenant Not to Vary Terms of Agreements ......................................58
Covenant to Enforce Underlying Contracts........................................58
INFORMATION TO BE PROVIDED BY THE
PARTIES TO EACH OTHER ........................................................58
Financial Reporting by the Member ................. ..................................58
Other Information to Be Made Available by the Member..................59
Financial Reporting by Public Gas Partners ......................................60
Other Information to Be Made Available by Public Gas Partners ....60
Information to Be Provided in Connection with the Member's
Prepayment.............. ............................ ........... ....................... ... ..... 61
Costs Associated With Providing Information.................................... 62
COMPONENTS OF GAS SUPPLY POOL NO. 1...............................62
Gas Supply Pool No.1 Portfolio...........................................................62
Working Interests and Royalty Interests............................................63
Minimum Portfolio Requirements.. ................ ............ ......................... 63
Minimum Security for Secured Prepayments..................................... 64
Dissolution of Gas Supply Pool No. 1..................................................65
Completion of Gas Supply Pool No. 1..................................................65
FINANCING OF GAS SUPPLY POOL NO. 1....................................67
Interim Financing by Public Gas Partners.........................................67
Permanent Financing.......................................................................... 67
Failure to Make Prepayment.................. ................ ............................. 68
CHANGES IN NOMINATED QUANTITY .........................................69
Reductions in Nominated Quantity................ .............. .... ...................69
Increases in Nominated Quantity....................................................... 70
TERM...............................,....................................................................70
Full Term.........................,.................................................................... 70
Early Termination......... ............,............. ............... .............. ................ 71
NOTI CES......... ..........................,............. ................ ............................. 72
RELATIONSHIP TO AND COMPLIANCE WITH OTHER
INSTRUMENTS ................. ...................... ................... ...................74
LIABILITY OF PARTIES.... ......................... ........................ ...............75
COUNTERPARTS.................. ......................... .....................................76
111
DRAFT #8 - 9/21/04
PRIVILEGED AND CONFIDENTIAL
FOR DISCUSSION PURPOSES ONLY
Compared to 9/16/04 (Draft #7)
EXHillIT A PARTICIPANTS IN GAS SUPPLY POOL NO. 1, THEIR NOMINATED
QUANTITIES, AND THEIR PARTICIPATION SHARES
EXHIBIT B RULING REQUEST SUBMITTED BY PUBLIC GAS PARTNERS,
INC. TO THE INTERNAL REVENUE SERVICE
EXHIBIT C POINTS OF DELIVERY
EXHIBIT D BREAKDOWN OF ANNUAL BUDGET BY CATEGORIES
EXHIBIT E NATURAL GAS SERVICES CONTRACT BETWEEN PUBLIC GAS
PARTNERS, INC. AND THE MUNICIPAL GAS AUTHORITY OF
GEORGIA
EXHIBIT F FORM OF OPINION OF COUNSEL TO THE MEMBER
EXHIBIT G ILLUSTRATIVE CALCULATION OF REVISED PARTICIPATION
SHARES FOLLOWING A REDUCTION IN THE MEMBER'S
NOMINATED QUANTITY
EXHIBIT H FORM OF HEDGING AND RISK MANAGEMENT POLICY
EXHIBIT I FORM OF NOTICE OF REVISED PARTICIPATION SHARES
IV
DRAFT #8 - 9/21/04
PRIVILEGED AND CONFIDENTIAL
FOR DISCUSSION PURPOSES ONLY
Compared to 9/16/04 (Draft #7)
NATURAL GAS PRODUCTION SHARING
AGREEMENT FOR GAS SUPPLY POOL NO.1
This Natural Gas Production Sharing Agreement for Gas Supply Pool No.1
(hereinafter "Agreement") is dated as of November 1, 2004, by and between Public
Gas Partners, Inc. a Georgia nonprofit corporation and an instrumentality of its
participating governmental entities (hereinafter "Public Gas Partners"), and
,a
organized under the laws of the State/Commonwealth of
(hereinafter the "Member"). Public Gas Partners and the Member are sometimes
hereinafter referred to collectively as the "Parties" or individually as a "Party".
RECITALS
l
WHEREAS, Public Gas Partners is a nonprofit corporation organized and
established under the provisions of the Georgia Nonprofit Corporation Code,
O.C.G.A. Section 14-3-101, et seq., as amended, the purpose of which is to acquire
and manage reliable and economic natural gas supplies, through the acquisition of
interests in natural gas producing properties and other long-term sources of natural
gas supplies, for participating joint action agencies and large public natural gas and
power systems; and
WHEREAS, it is intended that Public Gas Partners be an organization
exempt from federal income taxation as a governmental entity and that Public Gas
DRAFT #8 - 9/21/04
PRIVILEGED AND CONFIDENTIAL
FOR DISCUSSION PURPOSES ONLY
Compared to 9/16/04 (Draft #7)
Partners will satisfy the requirements necessary to be considered a governmental
instrumentality under the Internal Revenue Code of 1986,26 U.S.C. ~ 1, et a1. (the
"Code");
WHEREAS, the Member is a
which provides
service to
; and
WHEREAS, Public Gas Partners and the Member, together with Other
Members (as defined in this Agreement), have engaged in discussions regarding the
value and benefits that could be provided to the Member and Other Members
through the joint action of public gas entities and public electric entities in pooling
their talents, expertise, and resources to acquire and manage long-term gas
supplies needed as an essential component of their operations for the benefit of
their member distribution systems and/or the consumers they serve; and
WHEREAS, the Member on or before April 30, 2004, executed a Letter Of
Intent and submitted a non-binding nomination of the quantity of natural gas
deliverability that it anticipated requesting Public Gas Partners to acquire for sale
to the Member through a portfolio of gas supply transactions making up a pool of
supply acquisitions; and
WHEREAS, the Letter Of Intent provided that the relationship between
Public Gas Partners and the Member, as well as between Public Gas Partners and
all Other Members, would be formalized in an agreement under which the non-
binding nomination submitted in conjunction with the Letter Of Intent would be
2
DRAFT #8 - 9/21/04
PRIVILEGED AND CONFIDENTIAL
FOR DISCUSSION PURPOSES ONLY
Compared to 9/16/04 (Draft #7)
replaced by a contractual level of requested deliverability that Public Gas Partners
would be charged with obtaining for sale to the Member; and
WHEREAS, Public Gas Partners has entered or intends to enter into a
Natural Gas Services Contract with the Municipal Gas Authority of Georgia, one of
the Members, pursuant to which the Municipal Gas Authority of Georgia shall serve
as the Manager of Public Gas Partners for an initial term of five years as was also
contemplated in the Letter Of Intent; and
WHEREAS, the Member has worked collectively with Other Members to
draft the Articles of Incorporation and Bylaws of Public Gas Partners, this
Agreement, and the Natural Gas Services Contract, which all together realize the
purpose of the Letter Of Intent; and
WHEREAS, Public Gas Partners and the Member have agreed that Public
Gas Partners shall undertake a program of supply acquisitions that is intended to
include the acquisition of interests in gas reserves and gas prepayments, and that
Public Gas Partners shall take, hold and retain title to such interests, and shall
initially finance the purchase of such interests; and
WHEREAS, Public Gas Partners and the Member have agreed that Public
Gas Partners shall sell to the Member the Member's share of available production
from such interests or contractual rights under the terms and conditions set forth in
this Agreement; and
3
DRAFT #8 - 9/21/04
PRIVILEGED AND CONFIDENTIAL
FOR DISCUSSION PURPOSES ONLY
Compared to 9/16/04 (Draft #7)
WHEREAS, Public Gas Partners and the Member have agreed that the
Member shall be unconditionally obligated to pay its share of costs associated with
all aspects of the program undertaken by Public Gas Partners to acquire and
manage Gas Supply Pool No.1 to fulfill the Nominated Quantities of the Member
and Other Members; and
WHEREAS, Public Gas Partners and the Member have also agreed that the
Member shall bear its proportionate share of all costs and shall receive its
proportionate share of all benefits associated with Gas Supply Pool No.1; and
WHEREAS, Public Gas Partners and the Member have further agreed that
the Member shall make a lump sum advance payment for its proportionate share of
the gas produced from or delivered pursuant to Gas Supply Pool No. 1 at such time
as Public Gas Partners may notify the Member such prepayment is due, and the
Member shall make such payment from the proceeds of its permanent financing or
other funds available to the Member in connection with such Gas Supply Pool No.1
under the terms and conditions set forth in this Agreement; and
WHEREAS, Public Gas Partners and the Member have further agreed that
the effectiveness of this Agreement is contingent upon the execution of Production
Sharing Agreements by the Member and Other Members for aggregate Annual
Nominated Quantities of not less than 50,000 MMBtu per day.
NOW, THEREFORE, in consideration of the premises and mutual covenants
set forth in this Agreement and for other good and valuable consideration, the
4
DRAFT #8 - 9/21/04
PRIVILEGED AND CONFIDENTIAL
FOR DISCUSSION PURPOSES ONLY
Compared to 9/16/04 (Draft #7)
receipt and sufficiency of which are hereby acknowledged, Public Gas Partners and
the Member agree as follows:
ARTICLE 1
CONSTRUCTION AND INTERPRETATION
1.1 Recitals Incorporated. Each of the clauses set forth in the Recitals
above is incorporated into and made a part of this Agreement by this reference.
1.2 Exhibits. Each of the Exhibits to this Agreement is incorporated into
and made a part of this Agreement by this reference.
1.3 References. References to Articles, Sections, and Exhibits in this
Agreement are to the articles, sections, and exhibits of this Agreement.
1.4 Number and Gender. Unless the context plainly indicates otherwise,
the use of the singular in this Agreement incorporates the plural and vice versa,
and the use of the male, female, or neutral gender incorporates the others.
1.5 Heading-s. The headings used throughout this Agreement are inserted
for reference purposes only and shall not be construed or considered in interpreting
the terms and provisions of any Section or Article of this Agreement or the
Agreement as a whole.
1.6 Severability. If any Article, Section, term or provision of this
Agreement is declared by a court of competent jurisdiction to be illegal,
unenforceable, or void, this Agreement shall continue in full force and effect without
said Article, Section, term or provision; provided, however, that if such severability
5
DRAFT #8 - 9/21/04
PRMLEGED AND CONFIDENTIAL
FOR DISCUSSION PURPOSES ONLY
Compared to 9/16/04 (Draft #7)
materially changes the economic benefits of this Agreement to either Party, the
Parties shall negotiate in good faith and attempt to agree to an equitable
adjustment to the provisions of this Agreement to replicate to the best of their
ability the economic benefits of this Agreement to both Parties.
1. 7 Resolution of Disputes. Arbitration and Mediation. Notwithstanding
any other provision of this Agreement to the contrary, the Parties by mutual
agreement may agree to mediate or arbitrate any dispute that arises under this
Agreement. In the event that a dispute arises between Public Gas Partners and the
Member under this Agreement, the Parties agree that they shall pursue a process to
attempt to resolve the dispute as follows: first, the dispute shall be discussed by the
Parties at the staff level; if the dispute has not been resolved within 15 days of the
initiation of discussions, the Parties shall next schedule a face-to-face meeting to
include their chief executive officers at a mutually agreeable location, to take place
in not more than 15 days; if the dispute has not been resolved within 15 days
following such meeting, either Party may proceed to have the matter adjudicated, or
the Parties together may agree to pursue mediation or non-binding arbitration of
the dispute, or binding arbitration of the dispute.
1.8 Choice of Law. This Agreement shall be interpreted and construed in
accordance with the laws of the State of Georgia, without regard to any conflict of
laws provisions, provided that the capacity, power and authority of the Member to
enter into this Agreement and any matter relating to the interpretation or
6
DRAFT #8 - 9/21/04
PRIVILEGED AND CONFIDENTIAL
FOR DISCUSSION PURPOSES ONLY
Compared to 9/16/04 (Draft #7)
enforceability of any ordinance, resolution, agreement or other instrument adopted
or otherwise entered into by the Member authorizing, securing or otherwise relating
to its obligations under this Agreement, heretofore or hereafter adopted or assumed,
shall be governed by and construed in accordance with the laws of the
State/Commonwealth of
1.9 Venue. The Parties agree that venue shall lie in federal district court
in Atlanta, Georgia.
1.10 Interrelatedness of Production Sharing Ag-reements. This Agreement
is substantially identical to the agreements between Public Gas Partners and each
of the Other Members that are participating in Gas Supply Pool No.1 except for the
provisions relating to the identification of the parties, individual commercial terms
such as Nominated Quantities and Points of Delivery, and certain legal matters
applicable to each of the Members such as state law and the terms of underlying
contractual arrangements with Participating Utilities. The participants in Gas
Supply Pool No. 1 are listed in Exhibit A. This Agreement may not be amended
except upon the unanimous agreement of Public Gas Partners, the Member, and
each of the Other Members, and then only upon the concurrent execution of a
substantially identical written amendment to the Production Sharing Agreements
between Public Gas Partners and each of the Other Members; provided, however,
that Exhibit A shall be amended from time to time without such agreement to
conform to changes resulting from the addition of new Members as discussed in
7
DRAFT #8 - 9/21/04
PRIVILEGED AND CONFIDENTIAL
FOR DISCUSSION PURPOSES ONLY
Compared to 9/16/04 (Draft #7)
Sections 4.4(c) and 22.2 (listing of new participants and Nominated Quantities) and
to conform to other changes provided for in Article 14 (defaults), Section 17.2
(assignments), Section 21.3 (failure to make Prepayment), Section 22.1 (reduction in
Nominated Quantity). and Section 23.2 (early termination), or otherwise in this
Agreement; Exhibit C may be amended by agreement of the Parties; and Exhibit E
may be amended by agreement between Public Gas Partners and the Municipal Gas
Authority of Georgia. Except for such amendments as described in the foregoing
proviso, Public Gas Partners agrees that if either Party proposes an amendment to
this Agreement, Public Gas Partners shall provide written notice of such proposed
amendment to each of the Other Members within five days of sending or receiving
such proposed amendment. If Public Gas Partners or one of the Other Members
proposes an amendment to the Production Sharing Agreement between Public Gas
Partners and such Other Member for Gas Supply Pool No.1, Public Gas Partners
shall provide written notice of such proposed amendment to the Member within five
days of sending or receiving such proposed amendment.
1.11 Entiretv of Ag-reement. This Agreement constitutes the entire
agreement between Public Gas Partners and the Member with respect to the
purchase and sale of gas produced or delivered from Public Gas Partners' interests
in Gas Supply Pool No. 1. All prior negotiations and understandings, whether oral
or in writing (including without limitation the Letter Of Intent referenced in the
Recitals to this Agreement), are superceded by this Agreement. No modification of
8
DRAFT #8 - 9/21/04
PRIVILEGED AND CONFIDENTIAL
FOR DISCUSSION PURPOSES ONLY
Compared to 9/16/04 (Draft #7)
the terms and provisions of this Agreement shall be or become effective except by
the execution by the Parties of a written amendment.
1.12 Preparation of Agreement. The Parties have jointly drafted this
Agreement and it shall be deemed to be their joint work product and shall not be
construed against either Party by reason of its preparation.
1.13 Definitions. Unless another definition is expressly stated in this
Agreement, the terms set forth in Article 2 shall have the meaning there set forth
whenever they are used in this Agreement.
ARTICLE 2
DEFINITIONS
2.1 "Annual Nominated Quantity" is defined in Section 2.17.
~
2.2 "Board of Directors" means the Board of Directors of Public Gas
Partners, as described in Article 5.
2.3 "British thermal unit" or "Btu" means the amount of energy required
to raise the temperature of one pound of pure water one degree Fahrenheit (10 F) at
sixty degrees Fahrenheit (600 F) under standard atmospheric and gravitational
conditions.
2.4 "Costs" means any and all costs or other expenditures incurred with
respect to Gas Supply Pool No.1, whether they are incurred by Public Gas Partners
directly in connection with Gas Supply Pool No.1 or are incurred by Public Gas
Partners generally or in connection with more than one Project and are allocated to
9
DRAFT #8 - 9/21/04
PRIVILEGED AND CONFIDENTIAL
FOR DISCUSSION PURPOSES ONLY
Compared to 9/16/04 (Draft #7)
Gas Supply Pool No.1, and whether or not they are Individual Costs, including
without limitation: operating and maintenance costs; capital expenditures;
amounts payable by Public Gas Partners with respect to any debt or other
obligations of Public Gas Partners issued or incurred to finance its acquisition of
reserves or any other interests in, or contractual rights to, natural gas and its
production, including but not limited to all costs of issuance, credit enhancement,
interest rate swaps or other arrangements (including but not limited to ongoing
payments and any termination or unwind payments), remarketing, and disclosure,
all fees relating to trustees, paying and other agents, whether initial or ongoing,
and all required reserves or deposits or other costs associated with the issuance or
incurrence of any such debt; fees and expenses paid to the Manager and any other
amounts payable by Public Gas Partners under the Services Contract; deposits;
royalties; indemnities; environmental or other fines or liabilities; Losses; costs
incurred by Public Gas Partners in its prosecution of any legal claim or other action
to enforce its rights or otherwise in connection with or relating to its interests in gas
properties or contractual rights acquired under Gas Supply Pool No.1; severance,
ad valorem, or similar taxes; gathering, compression, transportation, and balancing
charges and penalties or other similar charges; fuel and lost and unaccounted for
gas; ongoing payments, termination payments, or unwind costs for hedges
undertaken for the benefit of the Members; and other costs, expenses, and charges
of any kind or nature that Public Gas Partners incurs in connection with the
10
DRAFT #8 - 9/21/04
PRIVILEGED AND CONFIDENTIAL
FOR DISCUSSION PURPOSES ONLY
Compared to 9/16/04 (Draft #7)
production, acquisition, and delivery to the Member of the gas produced from its
interests or otherwise acquired by Public Gas Partners as part of Gas Supply Pool
No. 1.
2.5 "Cubic foot" means the amount of gas required to fill a cubic foot of
space when the gas is at an absolute pressure of 14.73 pounds per square inch and
at a temperature of sixty degrees Fahrenheit (600 F).
2.6 "FERC" means the Federal Energy Regulatory Commission and any
successor thereto, including without limitation an Executive Branch agency of the
federal government, an independent regulatory commission, or a Legislative Branch
agency of the United States Congress.
2.7 "Force Majeure" has the meaning set forth in Section 15.3.
2.8 "Gas" means all natural gas, coal seam gas, coalbed methane, shale
gas, casinghead gas, and associated gaseous hydrocarbons, including liquids and
liquefiables, and any mixture of hydrocarbons or of hydrocarbons and non-
combustible gases and associated liquids, consisting essentially of methane and
conforming to the quality specifications applicable at the Point of Delivery.
2.9 "Gas Supply Pool No.1" means the gas supply acquisition projects and
transactions consummated by Public Gas Partners to meet the initial Nominated
Quantities of the Member and Other Members participating in the first portfolio of
long-term natural gas supplies acquired by Public Gas Partners, together with the
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management activities undertaken and conducted by Public Gas Partners in
connection with such portfolio.
2.10 "Gas Tariff' means the interstate pipeline tariff filed by a "natural gas
company" as defined in the Natural Gas Act (15 U.S.C. ~ 717 et seq.) pursuant to
FERC regulations and approved by FERC, as it may be amended from time to time.
2.11 "Individual Costs" means any and all Costs that are allocated by the
Operating Committee specifically to the Member or to a subset of all of the
Members, but not to all of the Members, including without limitation costs
associated with commodity swaps or other hedging agreements entered into by
Public Gas Partners in its name for the benefit of and at the request of one or more
but not all of the Members.
2.12 "Losses" means any and all costs of the defense of any action brought
against or defended by Public Gas Partners in connection with its operations or
relating to its interests in gas properties or contractual rights acquired under Gas
Supply Pool No.1, including but not limited to all suits, judgments, claims,
demands, causes of action, costs, and expenses arising out of or in any way
connected to claims with respect to title, environmental liability, or otherwise
relating to gas prior to its delivery to the Member under this Agreement.
2.13 "Manager" means the entity selected by Public Gas Partners to
manage the day-to-day and ongoing operations of Public Gas Partners, which
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initially shall be the Municipal Gas Authority of Georgia, and any and all
successors thereto.
2.14 "Mcf' means 1,000 cubic feet of gas.
2.15 "Members" means the Member and the Other Members. All of the
Members participating in Gas Supply Pool No.1 are listed in Exhibit A.
2.16 "MMBtu" means 1,000,000 Btus. One MMBtu also equals one
dekatherm.
2.17 "Nominated Quantity" means the quantity in MMBtu per day that the
Member has requested Public Gas Partners to acquire and sell to the Member
under the terms and conditions of this Agreement each day. The Member shall
establish a Nominated Quantity for the Summer Season and a Nominated Quantity
for the Winter Season. The average of the Nominated Quantity for the Summer
Season and the Nominated Quantity for the Winter Season shall be referred to in
this Agreement as the "Annual Nominated Quantity". Each of the Other Members
shall likewise have its own Nominated Quantity set for the Summer Season and the
Winter Season, respectively, averaged as its Annual Nominated Quantity. The sum
of all such quantities shall be referred to in this Agreement as the "Nominated
Quantities for the Winter Season", the "Nominated Quantities for the Summer
Season", and the "Annual Nominated Quantities", as applicable. The Nominated
Quantities of all Members are set forth in Exhibit A.
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2.18 "Operating Committee" means the Operating Committee for Gas
Supply Pool No.1 as described in Article 4.
2.19 "Other Members" means other joint action agencies and large public
gas and power systems that have joined Public Gas Partners as members, that are
participants in Gas Supply Pool No.1, and that have executed agreements
substantially identical to this Agreement with Public Gas Partners covering
participation in Gas Supply Pool No. 1. The Other Members participating in Gas
Supply Pool No.1 are listed in Exhibit A.
2.20 "Participating Utility" means those local government units that own
and operate municipal gas and/or electric utility systems that have entered into
contracts for the purchase of gas or electricity at wholesale from the Member.
2.21 "Participation Share" means the Member's percentage share of Gas
Supply Pool No.1, including its benefits and burdens. Participation Share is an
annual percentage which shall equal to the Member's Annual Nominated Quantity
as a percentage of the total Annual Nominated Quantities of all Members
participating in Gas Supply Pool No. 1. The Participation Share of the Member and
the Participation Shares of all Other Members are shown in Exhibit A.
2.22 "Point of Delivery" means the tailgate of the Sabine Pipe Line
Company's Henry Hub near Henry, Louisiana, or such other successor point or
points as may be established by mutual agreement of the Parties.
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2.23 "Prepayment" means the lump sum advance payment that the Member
shall be obligated to make to Public Gas Partners as provided in Section 21.2, in an
amount and on a date certain to be set by Public Gas Partners, as determined by
the Operating Committee, following due notice as described in this Agreement, for
the delivery of the Member's Participation Share of all or a portion of available gas
produced or otherwise acquired by Public Gas Partners in Gas Supply Pool No. 1.
2.24 "Production Sharing Agreements" means this Agreement and all of the
Natural Gas Production Sharing Agreements, dated the date hereof, between Public
Gas Partners and the Members, all of which are uniform in all material respects in
terms, conditions, and provisions, with the exception of the Nominated Quantity,
Participation Share, and Point of Delivery for each of the Members.
2.25 "Project" means any undertaking of Public Gas Partners designated as
a "Project" by its Board of Directors.
2.26 "Seasonal Nominations" means the Member's Nominated Quantities
for the Summer Season and the Winter Season, respectively. The Member's
Seasonal Nominations shall initially be equal to the Member's Nominated Quantity
during each month of the Summer Season and the Winter Season, as applicable, as
a percentage of the total Nominated Quantities during such Summer Season and
Winter Season of all Members participating in Gas Supply Pool No. 1. The
Seasonal Nominations of the Member at the initiation of Gas Supply Pool No. 1 and
the Seasonal Nominations of all Other Members are shown in Exhibit A.
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2.27 "Services Contract" means the Natural Gas Services Contract between
Public Gas Partners and the Manager, a copy of which is set forth in Exhibit E.
2.28 "Summer Season" means the six months of April through September.
2.29 "Summer Share" means the Member's Nominated Quantity for the
Summer Season as a percentage of the total Nominated Quantities for the Summer
Season of all Members.
2.30 "Winter Season" the six months of October through March.
2.31 "Winter Share" means the Member's Nominated Quantity for the
Winter Season as a percentage of the total Nominated Quantities for the Winter
Season of all Members.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of the Member. The Member hereby
makes the following representations and warranties to Public Gas Partners:
(1)
The Member is a
, duly
organized and validly existing under the laws of the State/Commonwealth of
and in good standing under the laws of the State/Commonwealth of
, and has the power and authority to own its properties, to carryon
its business as now being conducted, and to execute, deliver, and perform this
Agreement.
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(2) The execution, delivery, and performance by the Member of this
Agreement have been duly authorized by all necessary corporate action of the
Member and do not and will not require, subsequent to the execution of this
Agreement by the Member, any consent or approval of the governing body or any
officers of the Member, any consent or approval of any third party, or any other
governmental consents or approvals, except for such continuing actions by the
governing body of the Member as may be required under the provisions of the
Articles and Bylaws and except for such ongoing approvals and actions by the
Member as are contemplated by this Agreement.
(3) This Agreement is the legal, valid, and binding obligation of the
Member, enforceable in accordance with its terms, except as such enforceability
may be subject to (i) the exercise of judicial discretion in accordance with general
principles of equity, (ii) bankruptcy, insolvency, reorganization, moratorium, and
other similar laws affecting creditors' rights, and (iii) the valid exercise of the
sovereign police powers of the State/Commonwealth of
and the
constitutional powers of the United States of America.
(4) There is no action, suit, proceeding, inquiry, or investigation at
law or in equity, before or by a court, a public board, or another body, pending (i.e.,
as to which the Member has received service of process) or, to the Member's
knowledge, threatened, against or affecting the Member (or, to the Member's
knowledge, any meritorious basis therefor) (i) attempting to limit, enjoin, or
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otherwise restrict or prevent the Member from functioning, or contesting or
questioning the existence of the Member, or the titles of the present officers of the
Member to their offices; or (ii) wherein an unfavorable decision, ruling, or finding
would (a) materially adversely affect the validity or enforceability of this Agreement
or any other agreement or instrument to which the Member is a party and which is
used or contemplated for use in the consummation of the transactions contemplated
by this Agreement, or (b) materially adversely affect (1) the financial condition or
results of operations of the Member or (2) the transactions contemplated by this
Agreement.
(5) The execution and delivery by the Member of this Agreement
and the Member's compliance with its provisions will not conflict with or constitute
on the Member's part a violation of, breach of, or default under (i) any of the
Member's governing instruments, (ii) any Constitutional provision or statute,
indenture, mortgage, lease, resolution, note agreement, or other agreement or
instrument to which the Member is a party or by which the Member is bound, or
(iii) any order, rule or regulation of any court or governmental agency or other body
having jurisdiction over the Member or any of its properties.
(6) Any certificate signed by an authorized officer of the Member
delivered to Public Gas Partners shall be deemed a representation and warranty by
the Member to Public Gas Partners as to the statements made therein.
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(7) The Member has provided an unqualified opinion of counsel in
substantially the form set forth in Exhibit F.
(8) [This representation would be included in the agreements
between PGP and its joint action agency Members. It would not be applicable to the
Agreements between PGP and distribution system members (such as The Southeast
Alabama Gas District).] [In addition, the following language is to be included in the
Production Sharing Agreement between PGP and FMP A. It is intended by FMP A
to be substitute text for this Section 3.1 (h): The Member is entering into this
Agreement on behalf of and for the benefit of its AlI- Requirements Power Supply
Project. To the extent not paid from the Prepayment, all Costs and Individual Costs
payable by the Member under this Agreement constitute Operation and
Maintenance Expenses under the AlI- Requirements Power Supply Project Revenue
Bond Resolution and may properly be included in rates to be charged to Project
Participants in the All-Requirements Power Supply Project. The contracts between
the Member and Project Participants in the AlI"Requirements Power Supply Project
contain a covenant requiring the Project Participant to charge rates sufficient to pay
all amounts due under such contract.] The Member has executed a contract with
each of its Participating Utilities which (i) provides for the sale or utilization of the
Gas attributable to the Member's Participation Share in Gas Supply Pool No.1, (ii)
contains purchase and payment obligations of such Participating Utility that enable
the Member to pay timely all of its obligations to Public Gas Partners under this
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Agreement, including but not limited to a provision that the amounts billed by the
Member to the Participating Utility shall be treated as operating and maintenance
expenses of or a lien on the revenues of the Participating Utility's gas or electric
distribution system, and (iii) includes provisions under which the Participating
Utility covenants to charge and collect rates and fees sufficient at all times and in
all respects to enable such Participating Utility to meet its obligations to the
Member under such contract and all other amounts payable out of such revenues.
3.2 Representations and Warranties of Public Gas Partners. Public Gas
Partners hereby makes the following representations and warranties to the
Member:
(a) Public Gas Partners (i) is a nonprofit corporation duly created
and validly existing and in good standing under the laws of the State of Georgia, (ii)
expects to be considered an instrumentality of the Members under the Internal
Revenue Code, (iii) expects to be tax-exempt under Section 115 of the Internal
Revenue Code, (iv) will act consistently with such status, and (v) has the corporate
power and authority to enter into and perform this Agreement.
(b) The execution, delivery, and performance by Public Gas
Partners of this Agreement have been duly authorized by its Board of Directors and
do not and will not require, subsequent to the execution of this Agreement by Public
Gas Partners, any consent or approval of the Board of Directors or any officers of
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Public Gas Partners, any consent or approval of any third party, or any other
governmental consents or approvals.
(c) This Agreement is the legal, valid, and binding obligation of
Public Gas Partners, enforceable in accordance with its terms, except as such
enforceability may be subject to (i) the exercise of judicial discretion in accordance
with general principles of equity and (ii) bankruptcy, insolvency, reorganization,
moratorium, and other similar laws affecting creditors' rights.
(d) There is no action, suit, proceeding, inquiry, or investigation at
law or in equity, before or by a court, a public board, or another body, pending (i.e.,
as to which Public Gas Partners has received service of process) or, to Public Gas
Partners' knowledge, threatened against or affecting Public Gas Partners (or to
Public Gas Partners' knowledge, any meritorious basis therefor) (i) attempting to
limit, enjoin, or otherwise restrict or prevent Public Gas Partners from functioning,
or contesting or questioning its existence or the titles of its present officers to their
offices, or (ii) wherein an unfavorable decision, ruling, or finding would (a)
materially adversely affect the existence or powers of this Agreement or any other
agreement or instrument to which Public Gas Partners is a party and which is used
or contemplated for use in the consummation of the transactions contemplated by
this Agreement or (b) materially adversely affect (1) the financial condition or
results of operations of Public Gas Partners or (2) the transactions contemplated by
this Agreement.
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(e) The execution and delivery by Public Gas Partners of this
Agreement and Public Gas Partners' compliance with its provisions will not conflict
with or constitute on Public Gas Partners' part a violation of, breach of, or default
under (i) any of the governing instruments of Public Gas Partners, (ii) any
constitutional provision, statute, indenture, mortgage, lease, resolution, note
agreement, or other agreement or instrument to which Public Gas Partners is a
party or by which Public Gas Partners is bound, or (iii) any order, rule, or
regulation of any court or governmental agency or body having jurisdiction over
Public Gas Partners or any of its properties.
(D Any certificate signed by an authorized officer of Public Gas
Partners delivered to the Member shall be deemed a representation and warranty
by Public Gas Partners to the Member as to the statements therein.
ARTICLE 4
GOVERNANCE AND OPERATIONAL STRUCTURE
4.1 Governing- Bodv of Public Gas Partners. Public Gas Partners shall be
governed by a Board of Directors, as prescribed by its Articles of Incorporation and
Bylaws.
4.2 Committees. The operations of Gas Supply Pool No.1 shall be
governed by the Operating Committee in accordance with the Articles of
Incorporation and Bylaws and as further described in Section 4.4. In addition, the
Board of Directors pursuant to the Bylaws may establish other committees of the
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Board whose responsibility shall be focused on particular substantive areas within
the Board's areas of responsibility.
4.3 Manag-ement of Public Gas Partners' O{>erations and Mfairs. Public
Gas Partners shall be operated and managed by the Manager under the terms of
the Services Contract. If the Services Contract with the Manager is not extended or
is otherwise replaced, Public Gas Partners shall establish or enter into replacement
management arrangements to continue the management and operation of Gas
Supply Pool No.1 and Public Gas Partners' operations and affairs generally, in
accordance with agreements or other actions entered into or taken by the Board of
Directors. In the event that tax"exempt obligations have been issued by Public Gas
Partners or any Member with respect to Gas Supply Pool No. 1 or any Prepayment,
any replacement management arrangement shall be entered into with another
governmental unit or shall be a "qualified management contract" under applicable
Internal Revenue Service guidelines.
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4.4 Operating- Committee For Gas Supply Pool No. 1.
(a) Authoritv. The Board of Directors shall permanently delegate to
the Operating Committee the authority to make all decisions concerning the
management and operation of Gas Supply Pool No.1, except for the following, the
authority for which, in addition to the specific reserved authority set forth in
Sections 5.1(b) and 5.l(c) of the Bylaws, shall be reserved to the Board of Directors:
decisions with respect to litigation; decisions to issue bonds or other means of
financing; decisions to initiate or intervene in proceedings before the FERC or other
state or federal regulatory bodies or courts; and decisions affecting more than one
Project as delineated in the Bylaws.
(b) Structure. The Operating Committee shall consist of at least
one and not more than two representatives of the Member and of each of the Other
Members. If the Member or any of the Other Members appoints two
representatives to the Operating Committee, only one such representative (i) shall
be counted for purposes of determining whether a quorum of the Operating
Committee is present and (ii) shall be entitled to vote on matters before the
Operating Committee. Such representatives shall be named and designated by the
Member and each of the Other Members, respectively, and shall be appointed by the
Board of Directors as provided in the Bylaws. In this way, the Member and each of
the Other Members, through a committee of the Board of Directors, shall govern
Gas Supply Pool No. 1.
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(c) Quorum and Voting-. Two-thirds of the members of the
Operating Committee shall constitute a quorum for the transaction of business. A
vote of a majority of the Operating Committee members present shall be necessary
for action in all matters before the Operating Committee, except as follows: any
Operating Committee member may call for weighted voting in accordance with the
terms of Section 6.7(b) of the Bylaws or any successor provision thereto, or, in the
event that the Bylaws are hereafter amended to eliminate weighted voting, any
Operating Committee member may call for weighted voting under the procedure for
weighted voting set forth in the Bylaws and the effective date of this Agreement
following a decision to undertake a particular transaction as a component of Gas
Supply Pool No.1, and a unanimous vote of all Operating Committee members is
necessary to add a new Member of Public Gas Partners to Gas Supply Pool No. 1.
ARTICLE 5
CHARACTER OF OBLIGATIONS
5.1 Sale and Deliverv of Gas or Cash. Public Gas Partners shall each day
during the term of this Agreement sell and deliver and the Member shall purchase
and receive its Summer Share or Winter Share, as applicable, of the Gas produced
or otherwise delivered from Public Gas Partners' interests in Gas Supply Pool No.1
for the Summer Season or the Winter Season, as applicable. The Parties
acknow ledge and agree that Public Gas Partners may receive cash from the sale of
Gas produced from its interests in Gas Supply Pool No. 1 from time to time, and
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that as a result the Member may receive its applicable Summer Share or Winter
Share of such cash received by Public Gas Partners in lieu of physical supply.
Public Gas Partners will deliver physical Gas to the Member as all or part of the
Member's Participation Share of Gas produced or otherwise delivered from Public
Gas Partners' interests comprising Gas Supply Pool No.1 if such Gas or
arrangements with respect thereto are available, and cash if such physical Gas or
arrangements are not available.
5.2 Payment of Costs. The Member shall be billed by and shall pay to
Public Gas Partners its Participation Share of all Costs not billed as Individual
Costs, plus 100% of all Individual Costs allocated to it and not paid as part of its
Participation Share of Costs, without regard to the quantity of Gas produced or
delivered from Gas Supply Pool No. 1 or any limitation set forth in Article 6 on the
Member's obligation to take physical Gas, and whether or not any Gas is produced
or otherwise delivered from Gas Supply Pool No.1 during any month or period of
months during the term of this Agreement. The Member's bills will be adjusted
during each month of the Summer Season and Winter Season, as applicable, such
that the Member pays its proportionate share corresponding with the Member's
Seasonal Nominations. Public Gas Partners shall develop an average cost per
MMBtu of Gas delivered for purposes of passing through Costs to all Members
participating in Gas Supply Pool No.1, with such average cost trued"up to actuals
26
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at such times as may be determined by the Operating Committee but not less
frequently than annually.
5.3 Sharing of Costs. The Member's initial proportionate entitlement to
Gas and proportionate share of Costs for purposes of Article 5 and for all other
purposes under this Agreement is determined by its Participation Share. The
Parties acknowledge and agree that the Member's Participation Share may change
based on other provisions of this Agreement, including without limitation the
addition of one or more new Members to Gas Supply Pool No. 1 pursuant to Section
4.4(c) and the Bylaws or a reduction in Nomination Quantities by the Member or by
Other Members to the level of quantities already acquired by Public Gas Partners
at any point in time pursuant to Article 22.
5.4 True- Ups. The Participation Share is an annual percentage, reflecting
the intent of this Agreement that the Member shall share in the benefits and
burdens of Gas Supply Pool No.1 on the basis of its relative Annual Nominated
Quantity as a percentage of the total Annual Nominated Quantities of all of the
Members, notwithstanding the delivery of Gas in accordance with Seasonal
Nominations and the billing of Costs based on an average cost per MMBtu
determined through the annual budget process, all as provided in this Agreement.
Accordingly, it is the intent of the Parties that the annual true"up to actuals
described in Section 5.2 shall be made pursuant to policies and standards
established by the Operating Committee (which shall also review and approve the
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annual true-up amounts to be paid to or by the Members) to ensure that the
Member and each of the Other Members receives its fair share of the value of Gas
Supply Pool No. 1 and pays its fair share of the Costs of Gas Supply Pool No. 1 as
defined by its Participation Share.
5.5 Gas Supplies Held by Public Gas Partners. Public Gas Partners shall
own and hold the entirety of the Gas supplies in Gas Supply Pool No. 1 subject to its
obligation to deliver to the Member its Summer Share and Winter Share, as
applicable, of the Gas produced from or otherwise obtained as part of Gas Supply
Pool No.1, including but not limited to Gas produced or otherwise obtained after
retirement of the short-term bonds to be issued or other method of interim financing
to be obtained by Public Gas Partners for the acquisition of all or any component of
Gas Supply Pool No.1 and after the retirement of any bonds or other obligations
issued by the Member to finance the Prepayment for Gas supplies purchased by the
Member from Public Gas Partners for delivery from Gas Supply Pool No. 1.
Without limiting the generality of the foregoing, in the event Public Gas Partners
sells all or any portion of its ownership interests in the reserves or other
components of Gas Supply Pool No. 1 during the term of this Agreement and
determines that all or a portion of the proceeds of such sale shall not (i) be used to
buy replacement properties or other supplies, (ii) be reinvested in production, or (iii)
be held in cash reserves, the Member shall realize its Participation Share of any
such proceeds not so used in the net benefit (or costs) of such sale.
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ARTICLE 6
QUANTITIES
Public Gas Partners shall sell to the Member and the Member shall purchase
from Public Gas Partners the Member's Summer Share or Winter Share of the
production or other Gas supplies obtained by and available from Public Gas
Partners in Gas Supply Pool No. 1 each day during the term of this Agreement, up
to 100% of the Nominated Quantity. The Parties acknowledge and agree that the
Seasonal Nominations embodied in this Agreement are intended to bring together
the Members' seasonally complementary loads and that Public Gas Partners may
determine to meet the Annual Nominated Quantities of the Members through the
acquisition of Gas supplies designed to meet the peak season Nominated Quantities,
or through the acquisition of Gas Supplies designed to meet the Members' annual
average day quantities, or through some other means, as recommended by the
Operating Committee. For example, if Public Gas Partners determines to meet the
Annual Nominated Quantities of the Members through the acquisition of long"term
Gas supplies in accordance with the annual average day nominations of the
Members, Public Gas Partners in its discretion may meet the Members' aggregate
Seasonal Nominations by selling a portion of its supplies into the market during the
valley season and purchasing a portion of its supplies from the market during the
peak season so as to effect a seasonal exchange of quantities. Public Gas Partners
may sell production or other Gas supplies obtained or controlled by Public Gas
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Partners in Gas Supply Pool No.1 in excess of 100% of total Nominated Quantities
to Members under separate agreements or to third parties. The agreement of the
Member contained in this Article 6 to take its applicable share of Gas supplies up to
100% of the Nominated Quantity shall not limit its obligation to pay its
Participation Share of all Costs not billed as Individual Costs plus all Individual
Costs billed to it, as provided in Section 5.2.
ARTICLE 7
POINTS OF DELIVERY
The gas purchased and sold under this Agreement shall be delivered by
Public Gas Partners to the Member at the Point of Delivery, or at such other points
as Public Gas Partners and the Member shall mutually agree upon from time to
time, as specifically described in Exhibit C.
ARTICLE 8
TITLE
Title to the gas delivered under this Agreement shall pass from Public Gas
Partners to and vest in the Member at the Point of Delivery. As between the
Parties, Public Gas Partners shall be deemed to be in exclusive control and
possession of gas to be delivered under this Agreement prior to the time of its
delivery to the Member, and the Member shall be deemed to be in exclusive control
and possession of gas delivered under this Agreement thereafter.
ARTICLE 9
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MEASUREMENT AND SPECIFICATIONS
9.1 Measurement. Gas sold under this Agreement shall be measured
through existing measurement facilities at the Point of Delivery. The unit of
volume for measurement of gas delivered under this Agreement shall be one cubic
foot of gas at a base temperature of sixty degrees Fahrenheit (600 F) at an absolute
pressure of 14.73 pounds per square inch. The sales unit of the gas shall be one
MMBtu. The conversion from Mcf to MMBtu shall be performed according to the
Btu content of the gas as determined by the operator of the measurement
equipment at the Point of Delivery on a dry basis.
9.2 Qualitv Specifications. All gas delivered under this Agreement shall
be merchantable and shall conform to the minimum quality specifications and
heating value specified in the FERC Gas Tariffs of the interstate pipelines
interconnecting at the Point of Delivery.
ARTICLE 10
HEDGING
The Parties acknowledge and agree that they may enter into alternate price
agreements (commodity swaps, options, etc.) with third party counterparties to
hedge commodity price risks related to purchase, sale, production or storage from
Gas Supply Pool No.1, or may enter into financial derivatives transactions to hedge
interest rate risks associated with the financing thereof, and that such alternate
price agreements and financial derivatives transactions may be undertaken by
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Public Gas Partners in its own name, by Public Gas Partners for the Member and
Other Members participating in Gas Supply Pool No. 1 at their request, or in a
combination thereof. Any such alternate price agreements shall be used only for
purposes of price risk management and any such financial derivatives transactions
shall be used only for purposes of managing debt service on outstanding borrowings
and debt of Public Gas Partners. Any such agreements and transactions
undertaken by Public Gas Partners in its own name or for the Member or Other
Members at their request may be allocated and billed as Individual Costs as
determined by the Operating Committee at the time such agreements and
transactions are entered into, and may only be undertaken in accordance with
hedging and risk management policies established by the Operating Committee.
The initial hedging and risk management policy shall be substantially in the form
set forth in Exhibit H. The Operating Committee shall have the right to amend the
policy from time to time.
ARTICLE 11
ANNUAL BUDGET PROCESS AND PRICING OF DELIVERIES
11.1 Annual Budg-et Process For Pool-Specific Costs. Public Gas Partners
shall prepare a budget annually for all Costs of Public Gas Partners that it
identifies as being directly related to Gas Supply Pool No. 1. Such budget shall be
reviewed and considered by the Operating Committee, and following approval of the
Operating Committee shall be presented by the Operating Committee to the Board
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of Directors by no later than 60 days before the beginning of each fiscal year of
Public Gas Partners.
11.2 Annual Budg-et Process For Non-Pool-Specific Costs. Public Gas
Partners may establish one or more additional Projects during the term of this
Agreement. Public Gas Partners will incur costs and expenses that may
appropriately be directly assigned to such additional gas supply pool or pools or
other Projects and not to Gas Supply Pool No.1, or that, while not directly
assignable, appropriately should be allocated among gas supply pools or other
Projects, including Gas Supply Pool No. 1. Before the beginning of each fiscal year,
Public Gas Partners shall prepare and approve a budget for Gas Supply Pool No. 1
that includes all Costs that are not directly assigned to Gas Supply Pool No. 1 but
are allocated to Gas Supply Pool No. 1.
11.3 Budg-et Amendments. The annual budgets described in Sections 11.1
and 11.2 may be amended from time to time during the fiscal year by requisite
action of the Board of Directors.
11.4 Allocation of Pool-Specific Costs to the Member. The Member shall
bear its Participation Share of the Costs assigned and allocated to Gas Supply Pool
No.1 as described in Section 11.1 and billed in accordance with Section 5.2.
11.5 Allocation of General Costs to the Member. The Member shall bear its
Participation Share of all general Costs of Public Gas Partners that are not directly
assigned to Gas Supply Pool No. 1 but rather are allocated to Gas Supply Pool No. 1
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and to one or more other gas supply pools or other Projects as described in Section
11.2 and billed in accordance with Section 5.2.
11.6 Allocation of Individual Costs. The Member shall pay all Individual
Costs allocated to it by the Operating Committee and shall pay its proportionate
share of all Individual Costs allocated by the Operating Committee to it and one or
more of the Other Members but not all of the Members, as such Individual Costs are
billed in accordance with Section 5.2.
11. 7 Categories of Costs. The annual budget will include Costs in the
following categories: acquisition costs; developmental costs; operating costs; outside
services costs; administrative fees; and other costs. A breakdown of the types of
costs and expenses included in each of those categories is set forth in Exhibit D.
The compilation of the budgeted Costs in each of those categories will result in the
calculation of an average cost of gas per MMBtu. Public Gas Partners will develop
an average cost per MMBtu for the purpose of billing the Member for its
Participation Share of Costs (other than Individual Costs) in a manner consistent
with the Member's Seasonal Nominations as provided in Section 5.2. Individual
Costs shall be billed separately in a manner established by the Operating
Committee. The average cost per MMBtu may include amounts designed to fund or
maintain cash reserves determined necessary and reasonable by the Operating
Committee. Public Gas Partners shall perform a true-up of actual Costs incurred as
compared to amounts billed to all Members within 120 days of the end of each fiscal
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year, in a manner consistent with Section 5.4. Any amount due from the Member
as a result of the true"up shall be due and payable within 60 days from receipt of
invoice from Public Gas Partners. Any amount owed to the Member as a result of
the true"up shall be credited on the next invoice from Public Gas Partners.
ARTICLE 12
COMPONENTS OF MONTHLY BILLINGS
12.1 Acquisition Costs of Supply. During the period when interim financing
obtained by Public Gas Partners is in effect, the monthly bill from Public Gas
Partners to the Member shall include an amount representing the Member's
Participation Share of all Costs associated with such interim financing. Mter the
Member has made its Prepayment to Public Gas Partners in accordance with the
notice provided by Public Gas Partners as described in Section 21.2, the monthly
bill from Public Gas Partners to the Member shall no longer contain an element for
Public Gas Partners' interim financing costs, except for any residual expenses or
other interim financing costs that may remain payable.
12.2 Ongoing- Capital Development Reauirements. The Parties
acknowledge and agree that the acquisition of interests in gas reserves by Public
Gas Partners will carry with it ongoing requirements for capital development
expenditures that will be incurred from time to time. The Member shall be
responsible for paying its Participation Share of all such capital expenditures,
which constitute Costs as defined in this Agreement. The Parties contemplate that
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the permanent debt structuring put in place by the Member when it makes its
Prepayment to Public Gas Partners as provided in Section 21.2 may include an
amount for up to three years of estimated capital expenditures as projected by
Public Gas Partners. In addition and otherwise, Public Gas Partners shall build
capital reserves in amounts recommended by the Operating Committee and
included in each annual budget for Gas Supply Pool No. 1 approved by the Board of
Directors in accordance with the Bylaws, which shall be funded through Public Gas
Partners' monthly billings to the Member and the Other Members. In addition, the
Parties acknowledge that Public Gas Partners may retain cash from the sale of gas
owned by Public Gas Partners in accordance with policies approved by the
Operating Committee or the Board of Directors, as applicable. Furthermore, the
Parties contemplate that Public Gas Partners may realize proceeds from the sale of
liquids extracted from gas volumes owned by Public Gas Partners. Such amounts
may be retained by Public Gas Partners to meet ongoing capital requirements.
12.3 Gas Supply Pool No.1 Operating Costs. Costs incurred by Public Gas
Partners in operating and maintaining Gas Supply Pool No.1 shall be estimated
annually by the Operating Committee and included in the annual budget approved
by the Board of Directors in accordance with the procedures set forth in Article 11
and the Bylaws. Such projected annual operating and maintenance Costs shall be
billed in monthly increments as part of the monthly billings by Public Gas Partners
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to the Member consistent with the Member's Seasonal Nominations as provided in
Section 5.2.
12.4 Costs of Outside Services. The Parties acknowledge and agree that
Public Gas Partners may incur ongoing and occasional expenses for professional
and other outside services of reservoir engineers, other engineers, accountants,
auditors, attorneys, consultants and others. Such Costs shall be billed to the
Member in accordance with its Participation Share as provided in Section 5.2 as a
component of the monthly billing to the Member.
12.5 Manager Fees. The Parties agree that the Manager shall perform the
primary business functions of Public Gas Partners under the Services Contract for
an initial term of five years beginning on the effective date of this Agreement for a
monthly fee as defined in the Services Contract; provided, however, that the
Manager shall not begin to charge a monthly fee until such time as Public Gas
Partners has completed the first supply transaction in Gas Supply Pool No. 1. For
so long as the Services Contract is in effect, Public Gas Partners shall include in its
monthly billing to the Member an amount representing the Member's share of such
fees, as follows: (i) the fixed component of the Manager's monthly fee shall be billed
to the Member in accordance with its Participation Share; and Gi) the variable
component of the Manager's monthly fee shall be billed to the Member in
accordance with each MMBtu of gas delivered by Public Gas Partners to the
Member for such month. Following the termination of the Services Contract
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(including any extension of the initial term thereoD, any administrative and
management fees paid to a Manager, or any administrative and management Costs
incurred by Public Gas Partners if there is no longer a Manager, shall be included
in the annual budget process described in Sections 11.1 and 11.2 and the Bylaws.
12.6 Conting-encv Reserves. Public Gas Partners shall include target
amounts to be deposited into a contingency reserve account held by Public Gas
Partners in the annual budget approved by the Board of Directors. Such target
amounts shall be billed monthly to the Member in accordance with the Member's
Participation Share and consistent with Section 5.2. Upon the recommendation of
the Operating Committee, the amount of such contingency reserve may be amended
by the Board of Directors, which may direct that any additional reserve amounts
shall be collected through billings to the Member and Other Members over a period
of time of not less than three months.
ARTICLE 13
BILLING AND PAYMENT
13.1 Timing-. On or before the 15th day of each calendar month, Public Gas
Partners shall bill the Member for gas delivered and services rendered during the
preceding calendar month in accordance with Section 5.2. On or before the 25th day
of each calendar month or within 10 days after the date of the billing statement,
whichever is later, the Member shall make payment of the amount due for gas
delivered, services rendered, reimbursement for Costs, and fees owed under this
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Agreement and attributable to service during the preceding calendar month in
accordance with Section 5.2. Payment shall be made by wire transfer to Public Gas
Partners' account number as set forth in Article 24.
13.2 Late Payment. If the Member fails to pay an amount when due,
interest shall accrue from the date when due until paid at a rate equal to 200 basis
points above the prime rate published in The Wall Street Journal, (on the date of
this Agreement, under the heading "Money Rates" and the sub" heading
"Commercial Paper", and described as: "The base rate on corporate loans posted by
at least 75% of the nation's 30 largest banks"), or such successor publication as may
be approved by the Operating Committee, but in no event at a rate greater than
permitted by applicable law.
13.3 Disputed Amounts. If the Member disputes the appropriateness of any
charge or calculation in any billing statement from Public Gas Partners, the
Member shall notify Public Gas Partners within the time provided for payment of
the existence of and basis for such dispute and shall pay all amounts billed by
Public Gas Partners under this Agreement, including any amounts in dispute. In
no event may the Member withhold or offset any payment owed to Public Gas
Partners under this Agreement. If it is ultimately determined that the Member did
not owe the disputed amount, whether by agreement or by a final order of a court of
competent jurisdiction which is not subject to appeal, or because any right to appeal
has been waived or the Parties have irrevocably agreed not to appeal, Public Gas
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Partners shall pay the Member that amount plus interest calculated in accordance
with Section 13.2. Either Party may bring legal action concerning payment of any
amounts due under this Agreement.
13.4 Audit Rig-hts. Each Party shall have the right, at its own expense, to
examine and audit at any reasonable time the books, records, measurement data,
and charts of the other Party to the extent necessary to verify the accuracy of any
statement or charges made under or pursuant to this Agreement. Any inaccuracy
discovered shall be corrected by the next month's billing. Neither Party shall be
required to maintain books, records, measurement data, or charts for a period of
more than three years, except as otherwise required by law. Neither Party shall
have a right to question or contest any charge or credit if the other Party is not
notified in writing within two years of the date of the charge or credit in question.
13.5 Status of Payment Oblig-ations. The obligation of the Member to make
payments to Public Gas Partners under this Agreement is a several obligation and
not a joint obligation with that of any of the Other Members. [One or the other of
the following provisions in (i) or (ii) will be included in the Agreement based upon
the status of the Member as a joint action agency or distribution system.]
(9) The obligation of the Member to make such payments (other
than any termination or unwind payments associated with an interest rate
swap, commodity hedge, or like agreement) shall constitute an operating
expense of the Member's municipal utility system payable solely from the
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revenues and other available funds of such system as a cost of purchased
natural gas. Termination or unwind payments associated with an interest
rate swap, commodity hedge, or like agreement shall be payable after any
bonds or other debt obligations of the Member having a first lien on the net
revenues of the Member's system, or as required by the instruments securing
such bonds or other debt obligations. The Member is authorized and
empowered by applicable law to recover the amounts payable by it under this
Agreement through rates and charges established by the Member and
collected from its utility customers; or
(ii) The Member has entered into project-based or requirements
contracts with its Participating Utilities providing for the sale or utilization
of the Gas supply from its Participation Share in Gas Supply Pool No.1 and
for the collection by the Member from such Participating Utilities of revenues
sufficient to enable the Member to pay timely all Costs and all Individual
Costs payable by it to Public Gas Partners under this Agreement. The
Member covenants and agrees that its obligation to make payments to Public
Gas Partners under this Agreement (other than any termination or unwind
payments associated with an interest rate swap, commodity hedge, or like
agreement) shall be paid solely from such revenues as an operating expense
of the Member as a cost of purchased natural gas. Termination or unwind
payments associated with an interest rate swap, commodity hedge, or like
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agreement shall be payable after any bonds or other debt obligations of the
Member having a first lien on the net revenues of the Member's system, or as
required by the instruments securing such bonds or other debt obligations.
Such payments shall be made whether or not Gas Supply Pool No. 1 or any portion
thereof is acquired, completed, operable, or operating and notwithstanding the
suspension, interruption, interference, reduction or curtailment of deliveries of Gas
under this Agreement for any reason whatsoever, in whole or in part. The
obligation of the Member to make such payments is absolute and unconditional,
shall not be subject to any reduction, whether by offset, counterclaim, or otherwise,
and shall not be conditioned upon the performance by Public Gas Partners under
this Agreement or any other agreement or instrument.
13.6 Nature ofPavment Oblig-ation. The obligation of the Member to make
payments under this Agreement shall not constitute a debt of the Member within
the meaning of any constitutional or statutory provision or limitation or a general
obligation of or pledge of the full faith and credit of the Member, and neither the
Member nor the State/Commonwealth of
or any agency or political
subdivision thereof shall ever be obligated or compelled to levy ad valorem taxes to
make the payments provided for under this Agreement, and the obligation of the
Member to make payments pursuant to this Agreement shall not give rise to or
constitute a lien upon any tangible property of the Member or any tangible property
located within its boundaries or service area.
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ARTICLE 14
FAILURE TO PERFORM AND DEFAULT
14.1 Default bv Public Gas Partners and Remedies. Public Gas Partners
shall be in default of its obligations under this Agreement (i) if it fails to make a
payment as and when provided for in this Agreement, Gi) if it fails to deliver to the
Member its Summer Share or Winter Share, as applicable, of Gas that is produced
or otherwise delivered from Gas Supply Pool No.1, or (iii) if it breaches any
covenant, agreement or obligation on its part contained in this Agreement. Public
Gas Partners is not obligated to deliver any specific quantity of Gas, but rather is
obligated to deliver the Member's Summer Share or Winter Share, as applicable, of
such Gas as is available at a given point in time. In the event Public Gas Partners
defaults in its obligation to make a payment as and when provided for in this
Agreement, Public Gas Partners shall have five business days after notice to cure
such default. Public Gas Partners shall pay interest at the same rate as is
described in Section 13.2 from the date when payment is due until payment is
made. In the enforcement of its right of recovery, the Member may bring any suit,
action, or proceeding at law or in equity, including mandamus and action for specific
performance, as may be necessary or appropriate to enforce such payment
obligation. In the event of any default by Public Gas Partners in its delivery
obligations to the Member or under any other covenant, agreement or obligation on
its part contained in this Agreement, the Member's sole remedy for such default
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shall be limited to mandamus, injunction, action for specific performance, or any
other available equitable remedy as may be necessary or appropriate to enforce
such covenant, agreement or obligation. In no event may the Member withhold or
offset any payment owed to Public Gas Partners under this Agreement.
14.2 Default bv the Member. Each of the following shall constitute a
default by the Member under this Agreement:
(a) failure of the Member to make to Public Gas Partners any of the
payments (other than a Prepayment under Section 21.2) for which provision is
made in this Agreement within five business days after the due date of any such
payment; or
(b) failure by the Member to observe any of the covenants,
agreements, or obligations on its part contained in this Agreement and failure to
remedy the same for a period of 30 days after written notice specifying such failure
and requiring it to be remedied shall have been given by Public Gas Partners; or
(c) bankruptcy, reorganization, arrangement, insolvency, or
liquidation proceedings, including without limitation proceedings under Title 11,
Chapter 9, United States Code, or other proceedings for relief under any federal or
state bankruptcy law or similar law for the relief of debtors, are instituted by or
against the Member and, if instituted against the Member, said proceedings are
consented to or are not dismissed within 30 days after such institution.
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14.3 Continuing- Oblig-ation of the Member. In the event of any default
referred to in Section 14.2, the Member shall not be relieved of its liability for
payment of any amounts in default or its failure to observe its covenants,
agreements, and obligations under this Agreement, and Public Gas Partners shall
have the right to recover from the Member any amount in default. In enforcement
of any such right of recovery, Public Gas Partners may bring any suit, action, or
proceeding at law or in equity, including without limitation mandamus and action
for specific performance, as may be necessary or appropriate to enforce any
covenant, agreement, or obligation of the Member under this Agreement or the
obligation of the Member to make any payment for which provision is made in this
Agreement.
14.4 Right of Public Gas Partners to Suspend Service. In addition to
proceeding with its rights against the Member upon default pursuant to Section
14.3, Public Gas Partners in its sole discretion, upon not less than five business
days' written notice to the Member, may suspend the Member's right to receive Gas
and other consideration and services applicable to its Participation Share under this
Agreement and temporarily cease and discontinue providing delivery of all or any
portion of Gas otherwise deliverable to the Member under this Agreement for a
period of time within Public Gas Partners' discretion, until full satisfaction by the
Member of its obligations under this Agreement. In connection with its
determination to discontinue providing delivery of all or any portion of the Gas
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supplies otherwise deliverable to the Member, Public Gas Partners shall take into
account, among such other matters as Public Gas Partners in its sole discretion may
deem relevant, the amounts and due dates of its payment obligations under its
financial and contractual obligations with respect to Gas Supply Pool No. 1 and the
funds, revenues, and reserves available to Public Gas Partners to enable it to meet
such obligations. Any such discontinuance and suspension of deliveries to the
Member shall not terminate, reduce, modify, or relieve the Member's obligations
and liabilities under this Agreement. Upon any such discontinuance and
suspension of deliveries, Public Gas Partners in its sole discretion may take any and
all actions it deems necessary pending the cure of such default or the termination of
the Member's Participation Share as provided in Section 14.5 to address the impact
of such default, including without limitation the short"term marketing of any Gas
otherwise deliverable to the Member and the application of available reserves.
14.5 Termination and Transfer of the Member's Participation Share
Following Default. Public Gas Partners and the Member acknowledge that a
default by the Member or by any of the Other Members under the Production
Sharing Agreements could reduce the revenues available to Public Gas Partners
which are necessary for Public Gas Partners to meet its financial and contractual
obligations with respect to Gas Supply Pool No.1, either on a timely basis or at all,
that the ability of Public Gas Partners to deliver Gas, other benefits, and services to
the Members from Gas Supply Pool No.1 will be materially and adversely affected,
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and accordingly that the interests of all Members will be materially and adversely
harmed. Accordingly, the Parties agree that Public Gas Partners shall have the
right to terminate the Member's Participation Share at any time following the
suspension of service to the Member under Section 14.4. The termination of the
Member's Participation Share may occur only upon action by the Board of Directors,
following a recommendation of such termination by the Operating Committee, at a
duly called and noticed meeting of the Board of Directors at which the Member shall
have the right to make a presentation to the Board of Directors before the Board of
Directors votes on the question of such termination. In the event the Board of
Directors determines to terminate the Member's Participation Share, the Member
shall be given written notice of termination, to occur not sooner than five days
following such notice. The provisions of this Section 14.5 and of Section 14.6 are
intended by the Parties to provide a means to ensure the sufficiency of revenues to
Public Gas Partners following a default by the Member or one or more of the Other
Members under the Production Sharing Agreements by providing for the
termination and reallocation of the defaulting Member's Participation Share upon a
determination by Public Gas Partners to follow that course. Public Gas Partners
shall attempt to mitigate the impact of any such reallocation on the non-defaulting
Members. The Member agrees that the provisions of this Section 14.5 and of
Section 14.6 are reasonable and necessary in order to achieve the benefits of its
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joint and cooperative undertaking with the Other Members set forth in the
Production Sharing Agreements with respect to Gas Supply Pool No. 1.
14.6 Step-Up ReQuirements. In the event of a default by anyone or more of
the Other Members under their Production Sharing Agreements, Public Gas
Partners, in addition to the remedies and actions provided elsewhere in Article 14:
(a) May require the Member and each of the non-defaulting Other
Members to pay, in addition to the Costs and Individual Costs otherwise due under
the Production Sharing Agreements, an additional amount equal to the defaulting
Other Member's unpaid Costs multiplied by a fraction, the numerator of which is
the Member's Participation Share and the denominator of which is the aggregate
Participation Shares of the non-defaulting Other Members; provided, however, that
such increase (i) shall not exceed 25% of Costs otherwise due from the Member
under this Agreement in accordance with its Participation Share and (ii) shall not
extend for a period of more than three months; and
(b) Shall, in the event the remedies and actions provided in Article
14 do not generate revenues necessary for Public Gas Partners to meet its financial
and contractual obligations with respect to Gas Supply Pool No. 1 and in any event
upon the termination of one or more of the Other Members' Participation Shares
pursuant to Section 14.5, require the Member to increase its Participation Share on a
pro rata basis by an amount necessary to absorb the Participation Share or Shares of
the defaulting Member or Members; provided, however, that the aggregate amount of
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any and all such Participation Share increases under this Section 14.6 that may be
allocated to the Member during the term of this Agreement shall never exceed 25% of
the Member's Participation Share as set forth in the original Exhibit A (as it existed
on the effective date of this Agreement). Any such reallocation of the Participation
Share of one or more defaulting Other Members to the Member and to non"defaulting
Other Members by Public Gas Partners may take place only following the
termination of a defaulting Other Member's Participation Share as provided in
Section 14.5. Upon approval by Public Gas Partners of aqy such reallocation, Public
Gas Partners within five days shall notify the Member of its revised Participation
Share and the revised Participation Shares of the Other Members, in the form of
notice set forth in Exhibit 1. Nothing in this Section 14.6 or otherwise in this
Agreement shall preclude the Member and any of the Other Members from proposing
a reallocation of their revised Participation Shares following such notice. Public Gas
Partners in its sole discretion may agree to any such proposed reallocation, in which
event it shall notify all Members, in the form of notice set forth in Exhibit I, of their
revised Participation Shares within five days of such approval. Public Gas Partners
shall exercise all of its rights against all defaulting Other Members, and all such
defaulting Other Members shall remain liable to Public Gas Partners and the
Member and non-defaulting Other Members for Costs incurred and damages suffered
by them in connection with the actions taken with respect to the Participation Shares
of such defaulting Other Members as provided for in this Section 14.6.
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14.7 Termination of the Member's Participation Share Following-
Prepavment. In the event that the Member has made a Prepayment under Section
21.2 at the time the Member's Participation Share is terminated pursuant to
Section 14.5, Public Gas Partners, upon the expiration of the term of the Other
Members' Production Sharing Agreements and as part of the winding up
arrangements under such Production Sharing Agreements, shall repay to the
Member the depreciated net book value of the Member's Participation Share at the
date of the Member's default, as determined by the books and records of Public Gas
Partners, less any unrecovered Costs of Public Gas Partners resulting from the
Member's default, and net of any other Costs applicable to the Member's
Participation Share, without interest (the "Defaulting Obligation"), from the
amounts, if any, remaining after the payment of all of Public Gas Partners' other
financial and contractual obligations with respect to Gas Supply Pool No. 1 (the
"Non- Defaulting Obligations"). The Member acknowledges and agrees that, with
respect to the payment provided for in this Section 14.7: (i) satisfaction of the Non"
Defaulting Obligations will continue on schedule, so that payment of the Defaulting
Obligation may be many years in the future, (ii) the Member shall have no right to
demand acceleration of the Defaulting Obligation, and (iii) the payment of the Non-
Defaulting Obligations may exhaust the assets of Gas Supply Pool No.1, leaving
nothing to satisfy the Defaulting Obligation.
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14.8 Abandonment of Remedv. In the event any proceeding undertaken on
account of any default shall have been discontinued or abandoned for any reason,
the parties to such proceeding shall be restored to their former positions and rights
under this Agreement, respectively, and all rights, remedies, powers, and duties of
Public Gas Partners and the Member shall continue as though no such proceeding
had been taken.
14.9 Waiver of Default. Any waiver at any time by either Public Gas
Partners or the Member of its rights with respect to any default of the other Party,
or with respect to any other matter arising in connection with this Agreement, shall
not be a waiver with respect to any subsequent default, right, or matter.
ARTICLE 15
FORCE MAJEURE
15.1 Suspension of Oblig-ations. In the event either Party is rendered
unable, wholly or in part, by Force Majeure as defined in Section 15.3 to carry out
its obligations under this Agreement, other than the obligation of the Member to
make payments due to Public Gas Partners under this Agreement, which is an
unconditional obligation, it is agreed that the obligations of such Party, so far as
they are affected by Force Majeure, shall be suspended during the continuation of
such inability to carry out its obligations caused by Force Majeure, but for no longer
period. The Party affected by Force Majeure shall remedy the Force Majeure
condition to the extent possible with all reasonable dispatch; provided, however,
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that neither Party shall be required against its will to settle or otherwise adjust any
labor dispute. The Party claiming Force Majeure shall give notice to the other
Party, together with a detailed description of the Force Majeure event which
renders the Party unable to carry out its obligations, by telephone as soon as
reasonably possible after the occurrence of the Force Majeure event, followed by a
facsimile transmission as soon as reasonably possible thereafter.
15.2 Force Maieure in the Context of this AlZreement. This Agreement
provides that the Member is responsible for its Participation Share of the Costs and
is entitled to receive its Participation Share of the benefits associated with the
production and delivery of Gas acquired by Public Gas Partners under Gas Supply
Pool No. 1. Accordingly, Public Gas Partners' obligation to deliver Gas to the
Member under this Agreement is limited by the extent to which Gas is available or
benefits are otherwise received by Public Gas Partners from its interests or rights
under Gas Supply Pool No.1, and the Member agrees that any reduction in such
quantities below any projected or expected level that might otherwise be interpreted
as a violation of Public Gas Partners' obligations under this Agreement shall be
deemed an event of Force Majeure under this Agreement, unless such reduction is
the result of willful misconduct or gross negligence on the part of Public Gas
Partners,
15.3 Force Maieure Defined. The term "Force Majeure" means acts of God;
strikes, lockouts, or other industrial disturbances; acts of the public enemy; wars,
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blockades, insurrections, or riots; epidemics; landslides, lightning, earthquakes,
storms, floods, hurricanes, tornadoes, or washouts; civil disturbances or arrests or
restraints of governments and peoples; regulatory actions; explosions, breakage, or
accidents to necessary machinery or lines of pipe; the unanticipated necessity for
maintenance of or making repairs or alterations to necessary machinery or lines of
pipe; freezing of wells or lines of pipe associated with the production, gathering, or
delivery of Gas under Gas Supply Pool No.1; partial or entire failure of wells under
Gas Supply Pool No.1; curtailment or interruption of firm transportation necessary
to the delivery of Gas; and any other causes, whether of the kind herein enumerated
or otherwise, not within the reasonable control of the Party claiming Force Majeure
and which by the exercise of due diligence such Party is or would have been unable
to prevent or overcome.
ARTICLE 16
EXCLUSMTY AND AUTHORIZATION FOR ACQUISITIONS
Public Gas Partners is authorized to pursue acquisitions under Gas Supply
Pool No.1 up to the Annual Nominated Quantity for the Member for a period of 36
months from the effective date of this Agreement; provided, however, that the
Member may reduce its Annual Nominated Quantity to the level already acquired
by Public Gas Partners under Gas Supply Pool No.1, as described in Article 22, on
not less than 120 days' written notice. No other reduction in the Annual Nominated
Quantity by the Member shall be permitted for any reason whatsoever. The
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Member agrees that it shall pursue acquisitions of working or royalty interests in
Gas reserves exclusively through Public Gas Partners for a period of 36 months
from the effective date of this Agreement; provided, however, that the Member is
free to pursue the acquisition of working or royalty interest transactions on its own
so long as it offers any such transaction to the Operating Committee. The Member
shall present any such transaction to the Operating Committee at the same time it
presents such transaction to its governing body. The Operating Committee shall be
given the same period of time to review any such transaction and reach a
determination as to whether or not to approve the transaction as part of Gas Supply
Pool No.1 as it shall have, in the ordinary course of its operations, to review
potential transactions presented to it by the Manager. If the circumstances require
the consummation of the transaction before requisite approval by the Operating
Committee can be achieved, the Member may complete the transaction and then
offer it to the Operating Committee. In any event, if the Operating Committee
declines to pursue the transaction offered to it by the Member, the Member may
pursue the transaction on its own or in conjunction with any other entities,
including Other Members. Furthermore, if the Operating Committee declines to
pursue, or terminates pursuit of, any transaction developed by the Manager, or one
brought to it by any of the Other Members, the Member is free to pursue the
transaction on its own behalf or in conjunction with any other entity, including one
or more Other Members.
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ARTICLE 17
SUCCESSION AND ASSIGNMENT
17.1 Succession. The terms and provisions of this Agreement shall extend
to and be binding upon the respective heirs, successors, assigns, legal
representatives, or transferees of the Parties consistent with the provisions of
Section 17.2.
17.2 Assignment. Except as provided in this Section 17.2, neither Party
may assign its rights and interests under this Agreement except to another
Governmental Entity (as defined in the Bylaws), and then only with the prior
written consent of the other Party. If the Member seeks to assign its rights and
interests under this Agreement to another Governmental Entity (as defined in the
Bylaws) that is one of the Other Members, then such prior written consent of Public
Gas Partners shall not be unreasonably withheld. Any assignment or other transfer
of a Party's interests in this Agreement must include the express assumption, in
writing, by the assignee or transferee of the duties and obligations of the assigning
or transferring Party under this Agreement. Notwithstanding the foregoing, it is
expressly recognized and agreed by the Parties that Public Gas Partners may
assign its rights and interests in this Agreement or the revenues to be derived
under this Agreement for the purpose of securing any issue of debt or securing any
alternate price arrangement undertaken in connection with the acquisition or
management of components of Gas Supply Pool No.1, and that the Member may
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assign its rights and interests in this Agreement or the revenues to be derived
under this Agreement for the purpose of securing any issue of bonds or other
obligations or any such alternate price arrangement undertaken in connection with
its Prepayment to Public Gas Partners for Gas supplies to be purchased under this
Agreement, or for the management of such supplies.
17.3 Third Partv Beneficiaries. It is specifically agreed that there are no
third party beneficiaries to this Agreement, and that this Agreement shall not
impart any rights enforceable by any person, firm, organization, or corporation not
a Party to this Agreement.
ARTICLE 18
SPECIAL COVENANTS
18.1 Rates. Fees. and Charges of the Member. The Member shall at all
times charge and collect rates, fees, and other charges for its gas supply or
electricity services to its members or customers as shall be required to provide
revenues at least sufficient in each fiscal year, together with other available funds,
to pay all amounts due as they come due under this Agreement, together with all
other obligations of the Member, and the Member shall promptly enforce the
payment of all material accounts due and owing to the Member.
18.2 General Tax Covenant of Public Gas Partners. Bonds may be issued
by the Member for the Prepayment for the purchase of Gas supplies from Public
Gas Partners under this Agreement with the intention that some or all of the
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interest thereon be excluded from gross income of the holders thereof under Section
103 of the Code. Accordingly, Public Gas Partners agrees for the benefit of the
owners of such bonds that it will act in accordance with written instructions
provided by the Member from time to time and shall not take any action, or fail to
take any action, contrary to such instructions if such action, or failure to take
action, would adversely affect the exclusion from the gross income of the holders
thereof of interest on the bonds under the Code. Public Gas Partners has previously
filed with the Internal Revenue Service a request for a ruling that it is an
instrumentality of the Members for purposes of Sections 115 and 141 of the Code
and addressing certain other matters relating to the transactions contemplated by
this Agreement. A true, correct, and complete copy of such ruling request is
attached to this Agreement as Exhibit B. Public Gas Partners agrees to provide to
the Member copies of all correspondence between Public Gas Partners (including its
counsel and advisors) and the Internal Revenue Service relating to such ruling
request, within five business days of the sending or receipt of such correspondence.
18.3 Continued Existence of the Member. The Member hereby covenants
and agrees to maintain its existence during the term of this Agreement, and not to
cause its dissolution or to merge or to cause or permit all of its assets to be conveyed
to any entity, unless, in the case of a merger, it is the surviving entity.
18.4 Continued Existence of Public Gas Partners. Public Gas Partners
hereby covenants and agrees t? maintain its existence during the term of this
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Agreement, and not to cause its dissolution or to merge or to cause or permit all of
its assets to be conveyed to any entity, unless, in the case of a merger, it is the
surviving entity.
18.5 Covenant Not to Vary Terms of Agreements. Public Gas Partners
covenants that it shall not vary the terms of any of the Production Sharing
Agreements from the terms of this Agreement except in accordance with the
procedures set forth in Section 1.10 and except for individual Nominated
Quantities, Seasonal Nominations, Points of Delivery, and individual statutory
requirements and organizational matters.
18.6 [This section is applicable to joint action agency members.l Covenant
to Enforce Underlving Contracts. The Member agrees that it shall maintain in
effect and shall enforce during the term of this Agreement contracts with its
Participating Utilities that underlie its purchase and payment obligations under
this Agreement and provide for purchase and payment obligations of such
Participating Utilities with respect to Gas provided to the Member pursuant to this
Agreement in such amounts and at such times as to equal in amount and timing the
Member's obligations under this Agreement.
ARTICLE 19
INFORMATION TO BE PROVIDED BY THE PARTIES TO EACH OTHER
19.1 Financial Reporting bv the Member. The Member agrees to deliver to
Public Gas Partners: (i) within 150 days after the end of each fiscal year of the
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Member, financial statements of the Member for such fiscal year, audited by
independent certified public accountants selected by the Member; (ii) if requested by
Public Gas Partners, within 90 days after the end of each fiscal quarter of the
Member, financial statements of the Member as of the end of such quarter, certified
by its chief financial officer or other equivalent officer or employee; and (iii) such
other financial data as Public Gas Partners may reasonably request. All such
financial statements referred to in clause (i) above shall be prepared in accordance
with generally accepted accounting practices.
19.2 Other Information to Be Made Available bv the Member. The Member
acknowledges that the ability of Public Gas Partners to obtain financing for the
acquisition and operation of Gas Supply Pool No. 1 depends upon, among other
things, the credit standing of the Member and the Other Members and that it will
be necessary for Public Gas Partners to provide certain information concerning the
Members in connection with such financing. Consequently, the Member covenants
to and agrees with Public Gas Partners that the Member shall, upon request,
provide to Public Gas Partners information with respect to the Member, including
without limitation financial and operating information and all contracts,
documents, reports, bond resolutions and indentures, as may be requested by Public
Gas Partners or its counsel in connection with the financing of Gas Supply Pool No.
1. Furthermore, in addition to such information and the information required by
Section 19.1, the Member covenants to and agrees with the Public Gas Partners
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that the Member will furnish to Public Gas Partners such other information and
documents as Public Gas Partners may reasonably request from time to time that is
in the possession of the Member.
19.3 Financial Reporting bv Public Gas Partners. Public Gas Partners
agrees to deliver to the Member: (i) within 150 days after the end of each fiscal year
of Public Gas Partners, financial statements of Public Gas Partners for such fiscal
year, audited by independent certified public accountants selected by Public Gas
Partners; (ii) within 90 days after the end of each fiscal quarter of Public Gas
Partners, financial statements of Public Gas Partners as of the end of such quarter,
certified by its chief financial officer; and (iii) such other financial data as the
Member may reasonably request. All such financial statements referred to in
clause (i) above shall be prepared in accordance with generally accepted accounting
practices.
19.4 Other Information to Be Made Available bv Public Gas Partners. In
addition to the records described in Section 13.4 in connection with a request by the
Member for information concerning billings by Public Gas Partners and the
financial reports described in Section 19.3, Public Gas Partners shall make
available for examination by the Member at mutually agreeable times the following
information:
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(a) all books of accounts, records, documentation, and contracts in the
possession of Public Gas Partners relating to the operation of Gas Supply Pool No.
1;
(b) all agreements and data in the possession of Public Gas Partners
relating to the financing of Gas Supply Pool No.1;
(c) all operating and financial records and reports relating to Gas Supply
Pool No. 1 in the possession of Public Gas Partners; and
(d) such other information and documents with respect to Gas Supply Pool
No.1 as the Member may reasonably request from time to time and that is in the
possession of Public Gas Partners.
19.5 Information to Be Provided in Connection with the Member's
Prepayment. Public Gas Partners acknowledges that, in connection with the
Member's financing of its Prepayment, it will be necessary for the Member to
provide certain information with respect to Public Gas Partners and Gas Supply
Pool No.1. Consequently, Public Gas Partners covenants to and agrees with the
Member that it shall, upon request, provide to the Member such information,
including without limitation financial and operating information and all contracts,
documents, reports, financing and related documents, as may be requested by the
Member or its counsel in connection with the financing of the Member's
Prepayment.
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19.6 Costs Associated With Providing Information. To the extent Public
Gas Partners incurs Costs in gathering and compiling documents or other
information, such Costs shall be billed as Individual Costs.
ARTICLE 20
COMPONENTS OF GAS SUPPLY POOL NO.1
20.1 Gas Supply Pool No.1 Portfolio. Public Gas Partners will acquire long-
term gas supplies on a portfolio project basis. Gas Supply Pool No. 1 shall consist of
(i) one or more acquisitions of working interests, royalty interests, net profits
interests, leasehold interests, and any and all other interests in Gas reserves,
related facilities, or lands, (ii) the acquisition and management of contract
deliverability rights through secured natural gas prepayment transactions, and (iii)
the acquisition and management of other contract rights to the delivery of Gas,
sufficient in the aggregate to fulfill the nominations received from the Member and
all Other Members equal to the aggregate of all Nominated Quantities. Public Gas
Partners may fulfill the Nominated Quantities through one transaction or any
number of transactions, and the Member, under this Agreement, agrees to
participate in the entirety of Gas Supply Pool No.1. Individual transactions shall
each be a component of Gas Supply Pool No. 1. Public Gas Partners may
participate with third parties, including third parties that are not Governmental
Entities (as defined in the Bylaws), in any transaction that is part of Gas Supply
Pool No. 1 in the acquisition, operation, development or redevelopment of such
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project, including without limitation through joint ventures, joint bidding
arrangements, farmout agreements, participation agreements, co-development
agreements, or like agreements or arrangements.
20.2 Working Interests and Rovaltv Interests. As described in Section 20.1,
the portfolio acquired by Public Gas Partners under Gas Supply Pool No.1 may
include, without limitation, working interests and royalty interests in Gas
producing properties, which shall include associated gathering, processing,
compression, and other facilities.
20.3 Minimum Portfolio Reauirements. The Parties acknowledge and agree
that the Member's obligations under this Agreement extend to each of the
individual transactions that are components of Gas Supply Pool No.1, and that Gas
Supply Pool No. 1 shall only include transactions that are approved by requisite
action of the Operating Committee and the Board of Directors, as applicable, and
which, when aggregated with other transactions already undertaken as part of Gas
Supply Pool No.1 pursuant to requisite action of the Operating Committee and the
Board of Directors, meet the following minimum criteria:
(a) Projected minimum portfolio margins of $0.50 (50~) per MMBtu
below applicable forward curve pricing, as determined in accordance with criteria
established by the Operating Committee. Forward curve pricing shall be defined in
such criteria as (i) all forward contract months listed by the New York Mercantile
Exchange ("NYMEX") at the time of the determination by the Operating Committee
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to consummate a transaction and (ii) forward pricing as determined by the
Operating Committee for months extending beyond those listed by NYMEX. In the
event that the Operating Committee determines that NYMEX is no longer a viable
and liquid benchmark for forward curve pricing, the Operating Committee may
determine to use another listed exchange or trade publication forward curve.
(b) At least 60% of the risk adjusted available volumes in Gas
Supply Pool No.1 are reserves or are secured by underlying assets that are
classified as proved, developed and producing reserves by a nationally recognized
reservoir engineering firm engaged by Public Gas Partners to provide an
independent review of the reserves, or by financial instruments from counterparties
holding a minimum aggregate credit rating of "AA-" or equivalent from one of the
national credit rating agencies (Moody's, S&P, or Fitch); and (iii) the assets being
acquired must be located onshore in the continental United States or Canada, or in
the shallow waters of the United States.
20.4 Minimum Security for Secured Prepayments. As described in Section
20.1, Public Gas Partners may enter into secured natural gas prepayment
transactions as a component of Gas Supply Pool No. 1. Such prepayments must be
secured by a credit rating of "AA-" or better, or an equivalent credit rating, through
the underlying unenhanced credit rating of the applicable supplier, or provide
comparable security through a parent guaranty, a separate corporate guaranty, a
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surety bond, a letter of credit, the pledge of assets, or the posting of other collateral
acceptable to Public Gas Partners.
20.5 Dissolution of Gas Supply Pool No.1. The Operating Committee may
by vote of 80% of all of the members of the Operating Committee determine that
Gas Supply Pool No. 1 shall be dissolved by sale or other disposition. Any such vote
of the Operating Committee shall be presented by the Operating Committee as a
recommendation to Public Gas Partners for a vote in compliance with the Bylaws.
Upon such vote by Public Gas Partners, the determination of the Operating
Committee shall be the action of Public Gas Partners. Upon a decision by the
Operating Committee to implement the sale or other disposition of a component of
Gas Supply Pool No.1, the Operating Committee shall determine whether the
proceeds of any such sale or other disposition are to be reinvested in Gas Supply
Pool No. 1 or returned to the Member and the Other Members. Any return to the
Member and the Other Members shall be in accordance with their respective
Participation Shares. Upon the dissolution of Public Gas Partners, the Member
shall receive a return in an amount equal to its Participation Share of the net assets
of Public Gas Partners following sale or other disposition of such assets and the
winding up of Public Gas Partners' affairs.
20.6 Completion of Gas Supply Pool No. 1. The Operating Committee shall
determine when the Annual Nominated Quantities of the Member and the Other
Members have been met by the transactions comprising Gas Supply Pool No. 1. The
65
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Operating Committee's determination in this regard shall meet the standard set
forth below in this Section 20.6 and shall be conclusive. Upon such determination,
Gas Supply Pool No. 1 shall be closed, meaning that no additional acquisitions shall
be made. The Operating Committee may not reach such a determination unless it
finds that at least 80% of the aggregate Annual Nominated Quantities of the
Member and the Other Members will be available for delivery on the date of such
determination. Notwithstanding the foregoing, Gas Supply Pool No.1 shall
automatically be closed not later than three years after the effective date of this
Agreement if it has not been closed by action of the Operating Committee; provided,
however, that if there are ongoing negotiations as of such date involving one or
more potential transactions that the Operating Committee wishes to continue, the
Operating Committee may keep Gas Supply Pool No. 1 open for the purposes of
completing such negotiations.
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ARTICLE 21
FINANCING OF GAS SUPPLY POOL NO. 1
21.1 Interim Financing bv Public Gas Partners. Public Gas Partners shall
obtain all interim financing necessary to acquire each component of Gas Supply
Pool No. 1 and to consummate each transaction that is part of Gas Supply Pool No.
1. Public Gas Partners shall obtain title to all interests and supplies it acquires and
shall hold all such properties in its name. All costs and expenses associated with
such interim financing shall be included in the Costs billed to the Member on a
monthly basis in accordance with the terms of this Agreement.
21.2 Permanent Financing. Within six months after notice from Public Gas
Partners that it must make a Prepayment to Public Gas Partners for the acquisition
of its Participation Share of Gas Supply Pool No.1 acquired to that point in time,
plus any anticipated capital development or other Costs that the Operating
Committee determines are necessary or advisable to collect in advance, the Member
shall obtain its own permanent financing or shall otherwise obtain funds sufficient
to make its Prepayment to Public Gas Partners for its Participation Share. Such
notice provided by Public Gas Partners to the Member shall specify the amount of
the Prepayment to be made and the date upon which it is due. The amount of the
Prepayment shall be calculated by multiplying the Member's Participation Share by
the sum of (i) the total acquisition, development or other Costs incurred by Public
Gas Partners in acquiring and developing the components of Gas Supply Pool No.1,
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net of amounts recovered to the date of the Prepayment from the Member in
monthly billings for Public Gas Partners' debt service or other interim financing
Costs, (ii) an additional amount as determined by the Operating Committee up to
the amount representing the Operating Committee's projection of capital
development Costs to be incurred in connection with enhancing production and
deliverability of fields and wells in Gas Supply Pool No.1; and (iii) any additional
amount as determined by the Operating Committee.
21.3 Failure to Make Prepayment. In the event that the Member fails to
make its Prepayment by the due date, the Parties agree that all quantities of Gas
acquired by Public Gas Partners for the Member shall be held by Public Gas
Partners and may be disposed of in one of the following ways, in Public Gas
Partners' sole discretion: (i) Public Gas Partners may continue to sell all or any
portion of the Gas to the Member under the terms and conditions of this Agreement
as though Public Gas Partners had not yet provided notice to the Member that it
must make its Prepayment to Public Gas Partners; (ii) Public Gas Partners may
transfer the Member's Participation Share to the Other Members; (iii) Public Gas
Partners may transfer the Member's Participation Share to a member of Public Gas
Partners that is a participant in a Project other than Gas Supply Pool No.1, with
the concurrence required in Section 4.4(c); (iv) Public Gas Partners may transfer the
Member's Participation Share to a Governmental Entity (as defined in the Bylaws)
that is not a member of Public Gas Partners, with the concurrence required in
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Section 4.4(c); (v) Public Gas Partners may sell the Gas it acquired pursuant to the
Member's Annual Nominated Quantity on a short-term or long-term basis to Other
Members; or (vi) Public Gas Partners may sell the Gas it acquired pursuant to the
Member's Annual Nominated Quantity on a short-term or long-term basis to third
parties that are not Members. In the event Public Gas Partners chooses to pursue
option (ii), option (iii), or option (iv) above, this Agreement shall terminate upon
notice from Public Gas Partners that it has selected such option and has completed
all related transactions and winding up arrangements in accordance with this
Agreement. In all cases, Public Gas Partners may pursue all remedies available at
law or in equity against the Member to protect Public Gas Partners' interests and
the interests of the Other Members.
ARTICLE 22
CHANGES IN NOMINATED QUANTITY
22.1 Reductions in Nominated Quantitv. Effective upon not less than 120
days' notice to Public Gas Partners, the Member may decrease its Annual
Nominated Quantity (together with its Seasonal Nominations) to the level already
acquired by Public Gas Partners through completed transactions under Gas Supply
Pool No.1, but before Gas Supply Pool No.1 is filled. Upon the Member's exercise
of such option, Public Gas Partners shall reduce the total Annual Nominated
Quantities for Gas Supply Pool No. 1 to eliminate that portion of the Annual
Nominated Quantity that is no longer wanted by the Member and shall calculate
69
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the revised Participation Shares of the Member and of all Other Members in Gas
Supply Pool No. 1. All Members, including the Member if the Member decreases its
Annual Nominated Quantity and any of the Other Members that decreases its
Annual Nominated Quantity, remain obligated for all Costs of the existing portfolio
and future transactions making up Gas Supply Pool No.1; however, individual
Participation Shares shall be changed. An example of the calculation of the
Member's new Participation Share and the Participation Shares of the Other
Members under such circumstances is set forth in Exhibit G.
22.2 Increases in Nominated Quantitv. In the event that any new Members
are added to Gas Supply Pool No 1, consistent with the procedures described in the
Bylaws and Section 4.4(c), the Member shall have the right, with the unanimous
consent of the Other Members, to increase its Annual Nominated Quantity
(together with its Seasonal Nominations). The Member shall provide notice in
writing to Public Gas Partners and each of the Other Members of its requested
Increase.
ARTICLE 23
TERM
23.1 Full Term. This Agreement shall be effective upon (i) its execution and
delivery to Public Gas Partners by the Member on or prior to December 31,2004,
and (ii) the acceptance by the Board of Directors and the execution by Public Gas
Partners of Production Sharing Agreements with Members whose Annual
70
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Nominated Quantities total at least 50,000 MMBtu per day. Unless this Agreement
is earlier terminated under the provisions of this Agreement, it shall continue in
effect until the last to occur of the following: (a) the date on which the principal of,
premium, if any, and interest on all bonds, notes, loans, or obligations issued or
borrowings incurred by Public Gas Partners (with respect to Gas Supply Pool No.1)
or the Member (with respect to a Prepayment) have been paid or sufficient funds
shall have been irrevocably set aside for the full defeasance thereof, and (b) such
time as each and every component of Gas Supply Pool No. 1 is terminated, all
deliveries thereunder have been completed, all Costs thereunder have been paid,
and all contractual obligations of Public Gas Partners to third parties have been
fully performed or provided for, all upon the determination of the Operating
Committee to effect the final dissolution of Gas Supply Pool No.1 as provided in
Section 20.5.
23.2 Earlv Termination. The Member may not withdraw from membership
in Public Gas Partners while this Agreement is in effect without the unanimous
consent of the Operating Committee and the subsequent unanimous consent of the
Board of Directors. The Member may be removed from membership in Public Gas
Partners by vote of the Board of Directors if it is in default of its payment
obligations under this Agreement or if it fails to make its Prepayment as required
by this Agreement, consistent with written policies established by Public Gas
Partners. In the event the Member withdraws from or is removed from membership
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in Public Gas Partners, this Agreement shall be terminated as of the effective date
of such termination of membership, subject to the continuing obligation of the
Member to satisfy all of its payment and other obligations under this Agreement
and the conclusion of all winding up arrangements as provided for in this
Agreement. Notwithstanding the foregoing provisions of this Section 23.2, if a court
of competent jurisdiction determines that the Member is barred by the law of its
State/Commonwealth from participating in Public Gas Partners as a member, but
that the Member may otherwise be a party to this Agreement, the Member shall
relinquish its seat on the Board of Directors but shall retain its seat on the
Operating Committee, and this Agreement shall otherwise remain in full force and
effect. This Agreement shall also terminate upon the effective date of the
dissolution of Public Gas Partners.
ARTICLE 24
NOTICES
Any notice, request, demand, or statement provided for in this Agreement
must be given in writing, unless another provision of this Agreement specifically
provides otherwise. Notice must be provided by delivery in person, by United
States mail, or by express courier. Notice must be provided at the addresses shown
below, which addresses may be changed by written notice from one Party to the
other:
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Public Gas Partners:
Correspondence, notices and billing:
Public Gas Partners, Inc.
c/o Municipal Gas Authority of Georgia
104 TownPark Drive
Kennesaw, GA 30144
Attn:
Tel:
Fax:
E-mail:
With a copy to:
Chairman, Public Gas Partners, Inc.
c/o
Attn:
Tel:
Fax:
E-mail:
Payments:
Public Gas Partners, Inc.
Bank:
ABA No.:
Account:
73
DRAFT #8 - 9/21/04
PRMLEGED AND CONFIDENTIAL
FOR DISCUSSION PURPOSES ONLY
Compared to 9/16/04 (Draft #7)
The Member:
Correspondence, notices, billing, and payments:
Attn:
Tel:
Fax:
E-mail:
ARTICLE 25
RELATIONSHIP TO AND COMPLIANCE WITH OTHER INSTRUMENTS
It is recognized by the Parties that Public Gas Partners, in undertaking or
causing to be undertaken the planning, financing, acquisition, operation and
maintenance of Gas Supply Pool No.1, must comply with the requirements of the
financial and contractual obligations incurred by it and all regulatory permits and
approvals necessary therefor, and it is therefore agreed that this Agreement is
made subject to the terms and provisions of all financial and contractual
instruments entered into by Public Gas Partners with respect to Gas Supply Pool
No.1 and all such permits and approvals. Public Gas Partners covenants and
agrees that it will use its best efforts for the benefit of the Member to comply in all
material respects with all terms, conditions, and covenants applicable to it
contained in the financial and contractual instruments entered into by Public Gas
Partners with respect to Gas Supply Pool No. 1 and all such permits and approvals.
Public Gas Partners covenants and agrees that it will not, without the consent of
74
DRAFT #8 - 9/21/04
PRIVILEGED AND CONFIDENTIAL
FOR DISCUSSION PURPOSES ONLY
Compared to 9/16/04 (Draft #7)
the Member, enter into any agreement or instrument which will, in the reasonable
business judgment of Public Gas Partners at the date of the decision, materially and
adversely affect the rights and obligations of the Member under this Agreement.
ARTICLE 26
LIABILITY OF PARTIES
Public Gas Partners and the Member shall assume full responsibility and
liability for the maintenance and operation of their respective properties and each
shall, to the extent permitted by law, indemnify and save harmless the other from
all liability and expense on account of any and all damages, claims, or actions,
including injury to or death of persons arising from any act or accident in
connection with the installation, presence, maintenance, and operation of the
property and equipment of the indemnifying party and not caused in whole or in
part by the negligence of the other party; provided, however, that any liability
which is incurred by Public Gas Partners through the operation and maintenance of
Gas Supply Pool No.1 or pursuant to financial and contractual instruments entered
into by Public Gas Partners with respect to Gas Supply Pool No.1 and not covered,
or not covered sufficiently, by insurance shall be paid solely from the revenues of
Public Gas Partners under this Agreement, and any payments made by Public Gas
Partners to satisfy such liability shall be Costs under this Agreement.
75
DRAFT #8 - 9/21/04
PRMLEGED AND CONFIDENTIAL
FOR DISCUSSION PURPOSES ONLY
Compared to 9/16/04 (Draft #7)
ARTICLE 27
COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of which
taken together shall constitute one and the same instrument and each of which
shall be deemed to be original instruments.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of
the date hereinabove first written.
PUBLIC GAS PARTNERS, INC.
By:
ATTESTED:
Printed Name:
By:
Its:
Title:
THE MEMBER
By:
ATTESTED:
Printed Name:
By:
Its:
Title:
M:\clients\I8200\18200-1\NATURAL GAS PRODUCTION SHARING AGREEMENT 091604 DRAFT #8 CLEAN
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DRAFT #8 9/21/04
PRIVILEGED AND CONFIDENTIAL
FOR DISCUSSION PURPOSES ONLY
Compared to 9/16/04 (Draft #7)
EXHIBIT B
RULING REQUEST SUBMITTED BY PUBLIC GAS
PARTNERS. INC. TO THE INTERNAL REVENUE SERVICE
Page 1 of 1
DRAFT #8 - 9/21/04
PRMLEGED AND CONFIDENTIAL
FOR DISCUSSION PURPOSES ONLY
Compared to 9/16/04 (Draft #7)
EXHIBIT C
POINTS OF DELIVERY
The tailgate of the Sabine Pipe Line Company's Henry Hub near Henry,
Louisiana.
Page 1 of 1
DRAFT #8 - 9/21/04
PRMLEGED AND CONFIDENTIAL
FOR DISCUSSION PURPOSES ONLY
Compared to 9/16/04 (Draft #7)
EXHIBIT D
BREAKDOWN OF ANNUAL BUDGET BY CATEGORIES
The Costs incurred by Public Gas Partners and billed to the Member will
include but not be limited to the following:
~ Acauisition Costs (paid prior to Member's Prepayment)
o Public Gas Partners' debt costs to acquire interests in reserves and
other Gas supplies and to fund capital development costs of Gas
Supply Pool No. 1.
~ Capital Development Costs
o Ongoing budgeted expenditures to develop non-producing
properties acquired in Gas Supply Pool No. 1 and to enhance
production from producing reserves.
~ Operating Costs
o Ongoing expenditures for operating wells, gathering, treating,
processing, compression, transportation, and otherwise producing
Gas from Public Gas Partners' interests, making the Gas of pipeline
quality, and delivering it to the Point of Delivery.
~ Outside Services Costs
o Ongoing and occasional costs for professional services and other
outside services not provided by the Manager, including but not
limited to reservoir engineering, accounting, audit, legal, consulting
and comparable services.
~ Administrative Fees
o Ongoing administrative and general costs of managing Public Gas
Partners and maintaining its program of acquiring and managing a
portfolio of transactions making up Gas Supply Pool No. 1.
Initially, these services shall be provided by the Manager, and the
Page lof2
DRAFT #7 - 9/9/04
PRMLEGED AND CONFIDENTIAL
FOR DISCUSSION PURPOSES ONLY
Compared to 9/16/04 Draft
Member shall pay its share of the administrative fees set forth in
this Agreement and in the Services Contract.
~ Other Costs
o Any other costs not falling within one of the other categories,
whether ongoing or occasional.
Page 2of2
DRAFT #8 - 9/04
PRMLEGED AND CONFIDENTIAL
FOR DISCUSSION PURPOSES ONLY
Compared to 9/16/04 (Draft #7)
EXHIBIT E
NATURAL GAS SERVICES CONTRACT BETWEEN PUBLIC GAS
PARTNERS. INC. AND THE MUNICIPAL GAS AUTHORITY OF GEORGIA
Page 1 of 1
DRAFT #8 - 9/21/04
PRMLEGED AND CONFIDENTIAL
FOR DISCUSSION PURPOSES ONLY
Compared to 9/16/04 (Draft #7)
EXHIBIT F
FORM OF OPINION OF COUNSEL TO THE MEMBER
Page 1 of 1
DRAFT #8 - 9/9/04
PRMLEGED AND CONFIDENTIAL
FOR DISCUSSION PURPOSES ONLY
Compared to 9/16/04 (Draft #7)
EXHIBIT G
ILLUSTRATIVE CALCULATION OF REVISED PARTICIPATION SHARES
FOLLOWING A REDUCTION IN THE MEMBER'S NOMINATED QUANTITY
Page 1 of 1
DRAFT #8 - 9/21/04
PRIVILEGED AND CONFIDENTIAL
FOR DISCUSSION PURPOSES ONLY
Compared to 9/16/04 (Draft #7)
EXHIBIT H
FORM OF HEDGING AND RISK MANAGEMENT POLICY
DEFINITIONS
HEDGE - A hedge is used by Public Gas Partners to reduce the risk
associated with normal business activities of buying or selling commodities or
financial instruments. To qualify as a hedge there must be at least an 80%
correlation between the hedging instrument and the underlying asset being hedged
such as a commodity or interest rate.
SPECULATION -Using financial instruments in a manner not expected to
reduce the risk associated with Public Gas Partners' business activities related to
Gas Supply Pool No. 1. Speculation will not be authorized at any time.
FINANCIAL INSTRUMENTS - Financial instruments shall include
derivative products such as over-the-counter (OTC) instruments; for example,
options and swaps and the various combinations of such products. It also may
include exchange-traded instruments such as futures and options.
POLICY
Hedging can be an effective tool in reducing the interest rate and commodity
risk involved with the purchase and sale of natural gas. Hedging may also be
Page 1 of 4
DRAFT #8 - 9/21/04
PRMLEGED AND CONFIDENTIAL
FOR DISCUSSION PURPOSES ONLY
Compared to 9/16/04 (Draft #7)
appropriate to reduce price risk associated with the purchasing and storing of
natural gas.
Public Gas Partners will engage only in financial hedge transactions that are
consistent with prudent risk management practices related to Public Gas Partners'
Gas sales or acquisition commitments (including fixed price commitments made to
Members) or existing assets and liabilities and foreseeable future purchase and
sales requirements.
All interest rate hedges and all long-term commodity swaps (greater than
three years) require Operating Committee authorization via a resolution of the
Operating Committee.
Officers or employees of Public Gas Partners or the Manager shall not
directly or indirectly own or trade in energy futures contracts or options on energy
futures contracts for their own accounts.
Public Gas Partners shall not trade financial hedge instruments (including
interest rate hedges and commodity swaps options, and combinations thereof) with
a non -exchange Counterparty unless the Counterparty meets the following credit
criteria:
(i) for any hedge with a term of two years or greater, the
Counterparty's obligations are rated, or are insured or guaranteed by an
entity whose obligations are rated, in one of the two highest rating categories,
without regard to gradations within a category, of any nationally recognized
Page 2 of 4
DRAFT #8 - 9/21/04
PRMLEGED AND CONFIDENTIAL
FOR DISCUSSION PURPOSES ONLY
Compared to 9/16/04 (Draft #7)
rating service; and, for any hedge with a term of less than two years, the
Counterparty's obligations are rated, or are insured or guaranteed by an
entity whose obligations are rated, in one of the three highest rating
categories, without regard to gradations within a category, of any nationally
recognized rating service; or
(ii) the Counterparty's exposure to Public Gas Partners is
collateralized at 102% of the market value of such exposure, marked to
market no less frequently than quarterly!
COUNTERPARTY AUTHORIZATION
Based on the credit criteria referenced above, Public Gas Partners will
execute master swap agreements and maintain relationships with a sufficient
number of acceptable Counterparties to ensure a competitive environment to price
the applicable hedging transactions. Authorization for negotiating and executing
these agreements will be provided by the Board of Directors via resolution on an as
needed basis.
HEDGE COMMITTEE
. Delayed start date hedges may not exceed 36 months for single A-rated counterparties.
Page 3 of 4
~
I
,
DRAFT #8 - 9/21/04
PRMLEGED AND CONFIDENTIAL
FOR DISCUSSION PURPOSES ONLY
Compared to 9/16/04 (Draft #7)
A Hedge Committee will oversee the activities of the hedging program. The
Committee shall be comprised of the
The role of the Hedge Committee will be to determine whether a proposed
transaction is a bona fide hedge, to choose the hedge vehicle to be utilized, and to
review the performance of the hedging activity on a monthly basis. The Hedge
Committee shall meet at least monthly, and may meet more often if needed. A
member of the Hedge Committee shall be appointed to keep minutes of the
meetings. The Hedge Committee shall provide the Operating Committee a
summary of its activity every three months.
LIMITS AND AUTHORITY
The notional volume of hedging instruments shall not be greater than the
contractual volume of offsetting "physical" market agreements. If at any time the
total annual actual or expected net cash flow requirements associated with hedges
exceeds $3,000,000 (not including the impact of long-term commodity swaps entered
into as part oflongoterm gas supply arrangements), the hedge portfolio will be
immediately reviewed by the Hedge Committee to confirm that financial hedges in
place remain appropriate.
Page 4 of 4
EXHIBIT I
FORM OF NOTICE OF REVISED PARTICIPATION SHARES
# 2224887_v2
Appendix 1
PROJECT PARTICIPANT'S
NOMINATED QUANTITY FOR GAS SUPPLY POOL NO.1
GAS ENTITLEMENT SHARE
Name and Address of
Proiect Participant Summer Season
City of Clearwater 500 Dth's
Clearwater Gas System
400 N. Myrtle Ave
Clearwater, FL 33755
Winter Season
1,500 Dth's
Annual Nominated
Quantitv
1,000 Dth's
Gas Entitlement
Share
# 222488Lv2
Appendix 2
PROJECT PARTICIPANT'S POINT OR POINTS OF DELIVERY
PROJECT PARTICIPANT
POINT OR POINTS OF DELIVERY
City of Clearwater
. North Gate Station:
1010 N. Hercules Ave, Clearwater, DRN# 3171
. South Gate:
2531 Nursery Rd, Clearwater, DRN # 3172
. Northeast Gate:
2910 McMullen Booth Rd, Clearwater, DRN# 3168
. Trinity Gate:
8017 Mitchell Blvd, New Port Richey (Pasco County), DRN# 291990
# 2224887_v2
!
Appendix 3
FORM OF OPINION OF COUNSEL TO PROJECT PARTICIPANT
_, 200_
[U nderwriters, Counterparties
or other Interested Parties]
Florida Gas Utility
4619 NW 53rdAvenue
Gainesville, FL 32609
Re: PGP Gas Supply Agreement No. 1[; Other
Financial Instruments]
Ladies and Gentlemen:
I am counsel to the [please insertL- (the "Public Agency"), and
am furnishing this opinion to you in connection with the PGP Gas Supply
Agreement No. 1 ("PGP Gas Supply Agreement") [Financial Instrument] (the
"Agreement"), dated as of , and executed between Florida Gas Utility
("FGU"), r 1 and the Public Agency as a Project Participant and
purchaser of Gas from FGU.
All terms used herein in capitalized form and not otherwise defined
herein shall have the same meanings as ascribed to them in the Agreement.
In connection with this opinion, I have examined originals or copies,
certified or otherwise identified to my satisfaction, of the following:
(a) The Constitution and laws of the State of Florida including, as
applicable, special acts, ordinances, charters and agreements pursuant
to which the Public Agency was created and by which it is governed;
(b) Resolution No. _, duly adopted on , 200_ [please
insert one or, if applicable, more resolution numbers and dates]
(collectively, the "Resolution"), and certified as true and correct by
certificate and seal as of r 1, authorizing the Public Agency to
execute and deliver (i) the PGP Gas Supply Agreement described below
and (ii) [other Agreement], in accordance with the provisions of the
Constitution of the State of Florida, the Florida Interlocal Cooperation
Act of 1969, Section 163.01 and Chapter 166, Florida Statutes, and
other applicable provisions of law;
(c) A copy of the PGP Gas Supply Agreement [other Agreement] executed
by the Public Agency;
(d) The Interlocal Agreement dated September 1, 1989, as amended on
June 1, 1992, and as amended and restated by Amended and Restated
lnterlocal Agreement dated as of July 1, 1996, and thereafter amended
and restated by Second Amended and Restated Interlocal Agreement
dated as of July 27, 1999, between the Public Agency and the other
public agencies named therein (the "Interlocal Agreement");
(e) [The Official Statement, [Private Placement Memorandum] [Other]
dated as of [ ], relating to r 1;]
(D [The Continuing Disclosure Agreement, dated as of [ ] (the
"Continuing Disclosure Agreement"), among the Public Agency, FGU,
and [ ]; and]
(g) All outstanding instruments relating to bonds, notes or other
indebtedness of or relating to the Public Agency's System.
I have also examined and relied upon originals or copies, certified or
otherwise authenticated to my satisfaction, of such other records, documents,
certificates and other instruments, and made such investigations of law, as in my
judgment I have deemed necessary or appropriate to enable me to render the
opinions expressed below.
Based upon the foregoing, I am of the opinion that:
1. The Public Agency is [a public body corporate and municipal corporation of
the State of Floridal, [a utility authority and a part of government of the City
of 1, [a public agency as defined in Section 163.01(3)(b), Florida
Statutes, as amended, and an electric utility as defined in Section 361.11(2),
Florida Statutes, as amended] [PLEASE SELECT AS APPROPRIATE], duly
organized and validly existing under the laws of the State of Florida, with the
legal right to carryon the business of its System as currently being conducted
and as proposed to be conducted [as described in the [Official Statement]
[Private Placement Memorandum] [other].]
2
2. The Public Agency has the right and power to adopt the Resolution, and the
Resolution has been duly adopted by the Public Agency and is in full force
and effect as of the date hereof in the form in which adopted.
3. The PGP Gas Supply Agreement[, the Financial Instrument] [,the
Continuing Disclosure Agreement] (collectively, the "Agreements") and the
Interlocal Agreement have been duly and lawfully authorized, executed and
delivered by the Public Agency, and constitute the legal, valid and binding
agreements and obligations of the Public Agency, enforceable against the
Public Agency in accordance with their respective terms.
4. The authorization, execution, delivery, receipt and performance of the
Agreements and all agreements and documents provided for or contemplated
by the Resolution do not violate any applicable judgment or order of any court
and do not conflict with or result in a breach or violation of any of the terms
or provisions of, or constitute a default under, the terms of any statute of the
State of Florida, the Public Agency's ordinances or charter, any
administrative rule or regulation of the State of Florida or any agency thereof
or of any bond resolution, indenture, agreement, license, permit, franchise, or
other instrument to which the Public Agency is subject, or by which it or any
of its properties is bound, or result in the creation or imposition of any lien,
charge or other security interest or encumbrance of any nature whatsoever
upon any of the properties or assets of the Public Agency, except as expressly
provided by the Agreements, nor do such actions result in any violation of
any order, rule or regulation applicable to the Public Agency of any court or of
any federal, state or other regulatory authority or governmental body having
jurisdiction over the Public Agency or any federal statute, order, rule or
regulation applicable to the Public Agency or the State of Florida.
5. Amounts payable by the Public Agency to FGU pursuant to the PGP Gas
Supply Agreement [Financial Instrument] will constitute operating expenses
of the Public Agency's System.
6. All approvals, consents or authorizations of, or registrations, or filings with,
any governmental or public agency, authority or person required on the part
of the Public Agency in connection with the execution, delivery and
performance by it of the Agreements have been obtained or made.
7. There is no action, suit, litigation, inquiry, investigation or other proceeding
by or before any court, governmental agency, public board or body or other
tribunal of competent jurisdiction (either State or Federal) pending or, to the
best of my knowledge after due inquiry, threatened against the Public Agency
3
or its System which (a) questions the creation, organization or existence of
the Public Agency, (b) affects or seeks to prohibit, restrain or enjoin the
Public Agency from entering into, or wherein an unfavorable decision would
materially adversely affect the ability of the Public Agency to, comply with its
obligations contained in the Agreements, including the payment obligations
to FGU contained therein, or (c) in any way affects or questions the validity,
legality or enforceability of the Agreements, nor, to the best of my knowledge,
is there any basis therefor.
8. Project Participant Representative has the power and authority to enter into
Financial Products of the type described in the PGP Gas Supply Agreement
or to authorize FGU to enter into such transactions on Project Participant's
behalf and to bind Project Participant with respect thereto, subject in each
case to the general parameters set forth in Exhibit A to the PGP Gas Supply
Agreement.
The opinions set forth herein as to the enforceability of the legal
obligations of the Public Agency are subject to and limited by (i) bankruptcy,
insolvency, reorganization, moratorium and similar laws, in each case relating to or
affecting the enforcement of creditors' rights generally, and (ii) other general
principles of equity.
Very truly yours,
# 2224887_v2
4
t::.N6 - 3
City Council
~~<<<<<<,~g~nd~~<~Q,~~~,~~"~~,Q,~!!!!~,~,~<<,,
/2.3
Tracking Number: 908
Actual Date: 12/02/2004
Subject / Recommendation:
Approve the Parsons Water & Infrastructure, Inc. Work Order for Construction Engineering &
Inspection services for the Digester Refurbishment construction phase of the Biosolids
Treatment Implementation project in the amount of $477,552, and that the appropriate officials
be authorized to execute same.
Summary:
This Digester Refurbishment project provides forthe refurbishment of one pre-cleaned
anaerobic sludge digester and construction of new and replacement supporting improvements at
each of the Marshall Street and Northeast Advanced Wastewater Treatment Plants (AWTPs),
following completion of the Digester Cleaning phase of the project.
Parsons Water & Infrastructure, Inc. feesfor these Construction Engineering and Inspection
services for the construction phase of the Digester Refurbishment project are $477,552.00,
including an allowance of up to $50,000.00 for outside testing laboratory services, and including
up to $52,648.00 for specific allowance items to be consistent with the construction contract.
First quarter amendment will transfer $477,552.00 ofbudget and sewer revenue from the
Capital Improvement Program project 0315-96658, Northeast Improvements, to 0315-96611,
Bio-Solids Treatment, to fund this work order
Parsons' price includes all labor and expenses anticipatedto be incurred by Parsons for the
completion of the CEI tasks, on a time and expense basis, based upon the billing rates
developed for the current contract with the city of Clearwater. A breakdown of the estimated
cost for each task of the scope of services is provided in Attachment B of the Work Order.
Should the City require services costing in excess of these anticipated expenses, Parsons shall
provide sufficient notice and justification such that additional supplemental funding can be
authorized prior to exceeding the established budget.
A copy of this Work Order is attached hereand is available for review in the Official Records
and Legislative Services office.
Originating: Engineering
Section Consent Agenda
Category: Agreements/Contracts - with cost
Number of Hard Copies attached: 0
Public Hearing: No
Financial Information:
~ Capital Expenditure
Bid Required? No
Bid Exceptions:
Other
City Council
"""~g~c!!<<~li C~~.~.!:.<...~~~.!!!.~ ra -:!"~..':I~!!!,..,...,
Other Contract?
Existing City Engineer-of-Record
Budget Adjustment:
Yes
Budget Adjustment Comments:
See summary section.
Current Year Cost:
$477,552.00
For Fiscal Year:
10/01/2004 to 09/30/2005
Appropriation Code(s)
0315-96611-561300-535-000
Amount
$477,552.00
Comments
Review Approval
Glen Bahnick
Garry Brumback
11-08- 2004 16:43:23
11-10-2004 11:50:15
11-14-2004 20:53:07
11-09-2004 09:55: 13
11-17-2004 11:59: 19
11-10-2004 10:45:23
11-12-2004 13:37:04
Brvan Ruff
Bill Horne
Michael Ouillen
Cvndie Goudeau
Tina Wilson
I\:~ '. I::: tv 6 3-
'~: J~. 3
CITY OF CLEARWATER
PUBLIC WORKS ADMINISTRATION
WORK ORDER INITIATION FORM
Parsons Water & Infrastructure Inc.
Date: November 4, 2004
Parsons Project Number:
City Project Number: 03-0022-UT
1. PROJECT TITLE: Biosolids Treatment Implementation-Digester
Refurbishment, Construction Engineering and Inspection
2. SCOPE OF SERVICES:
See Attachment A.
3. PROJECT GOALS:
The intent of the work order will be for Parsons Water & Infrastructure Inc. to serve
as the duly appointed representative of the City, in accordance with the
responsibilities and limitations defined in Article 9 of the construction contract
General Conditions and the scope of work attached herewith, to provide construction
engineering and inspection services for the construction of the facilities as defined in
the final design and bidding documents of October 2004 for the subject project.
4. BUDGET (ENGINEER'S COMPENSATION):
The budget for this Phase of the project is $477,552, including an allowance of
up to $50,000 for outside testing laboratory services, and up to $52,648 to cover
for specific allowance items listed in the Bid Schedule to be consistent with the
construction contract, and for an optional safety review of the contractor's safety
plans and procedures by an OSHA certified safety engineer. This price includes
all labor and expenses anticipated to be incurred by Parsons for the completion of
these tasks, on a time and expense basis, based upon the billing rates developed
for the current contract with the city of Clearwater. A breakdown of the estimated
cost for each task of the scope of services is provided in Attachment B. Should the
City require services in excess of the budget, Parsons shall provide sufficient
notice and justification such that additional funding can be authorized prior to
exceeding the established budget.
5. SCHEDULE:
The project is to be completed 315 calendar days from issuance of notice-to-
proceed, or may be modified by Contract Documents or Change Orders. The project
deliverables are to be provided in accordance with procedures to be established with
the selected construction contractor and in accordance with the Contract Documents.
6. STAFF ASSIGNMENT:
Steven Schaefer, P.E.
Orlando Serrano
Project Manager
Resident Project Representative
1
1---
7. CORRESPONDENCE/REPORTING PROCEDURES:
ENGINEER's project correspondence shall be directed to Steven Schaefer, P.E.
All City project correspondence shall be directed to the City Engineer's designee,
with copies to others as may be appropriate.
8. INVOICINGIFUNDING PROCEDURES:
Invoices shall be submitted monthly to the City of Clearwater, Artn: Marty Pages,
100 S. Myrtle Ave., #220, Clearwater, Florida 33756-5520 or P. O. Box 4748,
Clearwater, Florida 33758-4748, for work performed. Invoices will be prepared
monthly based on actual time and direct costs expended. Invoicing method is cost
times 3.10 multiplier for labor, and in accordance with a progress report to be
provided with each invoice. Contingency services will be billed as incurred only
after written authorization is provided by the City to proceed with such services.
City Invoicing Code: 0315-96611-561300-535-000-000
9. ENGINEER CERTIFICATION:
Parsons will certify as a licensed Professional Engineer, registered in accordance
with Florida Statute 471 (481), that the above project's construction meets or
exceeds Contract Document Requirements or modifications thereto, insofar as the
Contractor adheres to said documents, and likewise for applicable criteria specified
by City municipal ordinance, State, and Federal established standards. We
understand that it is our responsibility as the project's Professional Engineer to
perform observations of the construction to the extent needed to provide the
certifications of completion.
This certification shall apply equally to any further revision and/or submittal of plans,
computations, or other project documents, which we may subsequently tender.
10. SPECIAL CONSIDERATIONS:
Not applicable
APPROVED BY:
APPROVED BY:
Parsons Water & Infrastructure Inc.
S. Bijoy Ghosh
Vice President
Michael D. Quillen, P.E.
City Engineer
City of Clearwater
Date
Date
2
PARSONS WATER AND INFRASTRUCTURE INC.
ATTACHMENT A- SCOPE OF SERVICES
Date: 11/4/04
City Project No: 03-0022-UT
1. Proiect Title: Biosolids Treatment Project Implementation-Digester
Refurbishment Construction Engineering and Inspection Services
2. Scope of Work:
SUMMARY
The City of Clearwater Northeast and Marshall St. Advanced Pollution Control
Facilities shall be modified to implement the selected alternative from the Bio-
solids Treatment Project Implementation Preliminary Design Report of
December 12, 2003, as defined further in final design and bidding documents
of October 2004. Parsons Water and Infrastructure Inc. (ENGINEER) shall
serve as the City's duly appointed representative with responsibilities and
limitations in accordance with the General Conditions Article 9 of the
construction contract documents. The following scope of construction
engineering and inspection (CEI) services shall be provided by the
ENGINEER:
1. Preconstruction Coordination and Management
2. Administration of the Construction Contract
3. Resident Engineering and Inspection
4. Engineering During Construction
5. Contract Closeout
6. Allowances for work not definable prior to construction
3
SCOPE OF SERVICES
TASK 1- PRE-CONSTRUCTION COORDINATION & MANAGEMENT
1.1 Project Management Plan
The ENGINEER will develop a Project Management Plan (pMP) at the outset of
this portion of the project. The PMP will address:
. Project organizational structure
. Appropriate lines of communications
. Progress reporting
. Submittal dates
. Project schedule and budget
. Project management controls, including accounting, quality control and
Quality Assurance Plan
. Health and Safety Plan
1.2 Contractor Pre-qualification
. The City will conduct any necessary prequalification of contractors
according to their current procedures for Wastewater Facilities
contractors.
1.3 Pre-Construction Coordination and Meetings
a. The ENGINEER's Project Manager will be responsible for the execution of
directives from the CITY, and will render written responses to requests for
information. (Effort level has been budgeted for 20 Hrs Project Manager,
and 40 Hrs for Project Engineer)
b. The ENGINEER will attend (3) meetings with the City Staff to coordinate
construction schedule and phasing plan for the digester refurbishment. (4
Hrs/Mtg)
c. The ENGINEER will also attend (2) coordination meetings with McKim and
Creed (MC), and City of Clearwater Staff to coordinate Instrumentation
and controls implementation strategy.(4 Hrs/Mtg)
4
1.4 Construction Milestone Schedule
The ENGINEER will develop a general construction milestone schedule that
will incorporate the major construction activities for the digester
refurbishment. This schedule will be limited to the major work plan and it will
identify coordination and phasing activities during construction. The
schedule will be submitted to the City and MC for review and comments.
The purpose of this exercise is to anticipate potential coordination and
phasing/sequencing issues and create a proactive approach toward
resolving them, thereby providing more assurance of timely completion.
Upon agreement of the general construction milestone schedule, the
contractor will prepare a detailed schedule in accordance with the required
phasing and coordination procedures.
Task 2 - Administration of Construction Contract
5
Prepare and implement project construction management procedures between
CITY, ENGINEER, and Contractor
2.1 Pre-Construction Meeting
The ENGINEER shall prepare for, attend, and conduct a Pre-Construction
Meeting. The ENGINEER shall prepare and distribute minutes of the pre-
construction conference and a list of attendees.
2.2 Weekly Project Meetings
The ENGINEER shall prepare for, schedule and chair up to a total of 45 weekly
project meetings as needed with the Contractor, CITY, and CITY's System
Integrator (MC) and others selected by the CITY, and distribute minutes. These
meetings shall be conducted for the purposes of review of the schedule, action
items, status of changes, submittals, problem issues, safety, and requests for
information (RFI's).
2.3 Performance Review
The ENGINEER shall provide monthly periodic performance review and
appraisals.
2.4 General Administration
The ENGINEER shall review construction items as needed, such as RFI'S,
correspondence, and submittals.
The ENGINEER shall manage and respond to all Contractor claims. Provide
validity and entitlement recommendations to the CITY; acknowledge receipt of
claims promptly, and respond initially; expedite changes to avoid claims;
implement dispute resolution process for claims that cannot be resolved quickly;
implement claims prevention program, including comprehensive personnel
training, thorough project planning, control changes through project reviews, and
use proven construction administration procedures;
The ENGINEER shall maintain project files, records, correspondence, and photo
library of progress.
The ENGINEER shall facilitate rapid access to records, and illustrate sequence
of construction; require and review quality control specifications and assist the
CITY by subcontracting with an independent materials lab for testing of concrete,
asphalt, mortar, and soils compaction;
6
Require the Contractor to furnish ENGINEER and CITY's staff representative(s)
temporary office space and equipment, furniture, utilities, and cleaning service,
and conference room on site for use by the CITY and ENGINEER.
General Administration is budgeted at 4 Hrs/Week for Engineering and
8Hrs/Week for Administration.
2.5 Schedule of Payments & Change Orders
The ENGINEER shall establish mobilization cost limits in the Contract
Documents, to prevent front loading of the Schedule of Values.
The ENGINEER shall review and process progress payments, and verify
completion of work as claimed by the Contractor;
The ENGINEER shall establish and implement a change order control system.
The ENGINEER will advise the CITY in negotiation of change orders;
The ENGINEER shall establish the process for early notification of possible
changes; Review the need for change with the CITY and Contractor; Expedite
decisions on changes to maintain project schedule;
If necessary, assist the CITY in monitoring changes in the work that are
authorized on a time and material basis. Monitor the change order work and sign
off on labor and equipment associated with the change.
2.6 Progress Reports
Prepare and distribute monthly progress reports, including construction status,
performance assessment, schedule status, and problem area identification;
ENGINEER shall also submit copies of the daily site visit reports on a weekly
basis.
Task 3 - Resident Enaineerina & Inspection
The Resident Project Representative (RPR) will represent the ENGINEER in
administering the construction contract, and observe and report on the quality,
safety and progress of the construction activities. The duties, responsibilities and
limitations of authority of the ENGINEER are defined in the scope of work and in
the General Conditions of the construction contract. The RPR is not authorized
to direct or interfere with the contractor's personnel, suppliers or subcontractors.
Policies and procedures shall be established so that the RPR can occupy the
project and have unrestricted access during construction.
The RPR shall perform daily inspections of the Contractor's work, and provide an
inspection plan for review and approval by CITY's staff representatives.
7
The RPR shall monitor the contractor's on-site construction operations and
inspect all materials entering into the work as required. The RPR shall assure
that the quality of workmanship and materials is such that the project will be
completed in reasonable conformity with the plans, specifications, and other
contract provisions. The RPR shall identify construction deficiencies and non-
compliances, and require non-compliance responses and remedial action from
Contractor.
The RPR shall keep accurate records of the contractor's operations and
significant events that affect the work at the time of the inspections. The RPR
shall prepare daily inspection reports and provide copies to the City
The RPR shall monitor compliance with environmental regulations and permits
during construction, such as site drainage containment, dust control, noise
control, etc., and monitor construction safety program of Contractor for
compliance with OSHA and Florida regulations.
The RPR shall verify that the sampling and testing of component materials and
completed work items is carried out in general conformance with the project
specifications and shall oversee and coordinate construction testing. Testing
responsibilities will be as defined in the construction contract documents. The RPR
shall review test reports and verify that follow-up testing is performed in the event of
failing tests.
The RPR shall review laboratory test reports provided by an independent
licensed testing laboratory hired by the ENGINEER for the testing of component
materials and completed work items for substantial conformance with the design
concept of the project and information given in the contract documents. The
RPR shall notify the CITY of test reports which do not substantially conform to
the contract documents, prepare a written notice describing any apparent
nonconforming permanent work, make recommendations to the CITY and
request the contractor to carry out the acceptable corrective measures, as
authorized by the CITY.
The RPR will be required to:
. Review work accomplished, disapprove defective work, and verify that
tests and start-up procedures as required by the contract documents are
followed. Accompany the client's personnel and inspectors, or
representatives of agencies having jurisdictional interest, during pre-
arranged site visits.
. Receive and respond to Requests for Information (RFI) provided by the
contractor.
. Maintain orderly files of project-related matters on site. Keep a diary or
log book.
8
In accordance with the General Conditions of the construction contract, Article 9,
the ENGINEER has no authority to:
. Authorize any deviations from the contract documents or substitutions of
materials and equipment, except as specifically authorized by the City.
. Instruct or direct the contractor in his construction activities outside the
bounds of the Construction Contract Documents. ENGINEER shall report
observations of means and methods of construction to the CITY as
appropriate.
. Exceed the limitations of the RPR's authority outlined in the Contract
Documents or the Service Agreement.
. Assume any of the responsibilities of the contractor, subcontractors, or
their superintendents.
. Advise on or issue instructions concerning the contractor's techniques,
sequences, or other procedures of construction unless specifically
required by the contract documents.
. Authorize the CITY to occupy the project in whole or in part, except as
specified in the construction contract.
. Participate in specialized field or laboratory tests or inspections conducted
by others, unless specifically authorized by the client.
. Advise on, issue direction regarding or assume control over safety
precautions and programs in connection with the work. ENGINEER shall,
however, inform the contractor and CITY of safety concerns or violations
observed.
. Accept shop drawing or sample submittals from anyone other than the
Contractor.
Task 4 - Enaineerina Durina Construction
4.1 Submittals
The ENGINEER shall request, receive, review, reject andlor approve shop drawings, product data
and test results to be submitted by the Contractor for all pertinent items needed in
construction. The contractor will be required to fully coordinate all submittals and present to
the ENGINEER for review and approval. The ENGINEER shall review the submittals to
determine satisfactory compliance with the project plans and specifications, noting his
approval or stipulations. Three copies with appropriate approval shall be forwarded to the
CITY for its use. The ENGINEER shall retain copies for his use, returning remaining
copies to the contractor for use in procuring and constructing components of the project.
9
The ENGINEER will determine the acceptability, subject to CITY approval, of substitute materials
and equipment proposed by the contractor and receive and review (for general content as
required by the specifications) maintenance operating instructions, schedules, guarantees
and certificates of inspection, which are to be assembled by the contractor in accordance
with the Contract Documents.
The ENGINEER will maintain separate electronic logs of submittals and indicate
all relevant information such as receipt and return dates, review action, who
reviewed, copies distributed, etc. All submittals will be tracked through the
review and response process.
4.2 Schedule Administration
The ENGINEER shall:
Review Contractor's CPM schedule and monthly updates. Monitor on a weekly
basis.
Require a Resource Loaded CPM schedule in Primavera P3 format (can use
Microsoft Project) to be provided by the Contractor. The CPM schedule shall be
updated by the Contractor on a monthly basis, or more frequently if required to
correct deficiencies with hard copies provided to the City Construction Manager
and Project Manager.
Monitor performance relative to approved CPM schedule at regularly scheduled
progress meetings.
Review Contractor's Schedule of Values for consistency and conformance with
Contract Documents
Require conformance of schedule of values with approved CPM schedule as a
contract condition.
4.3 Design Modifications and RFI's
The ENGINEER shall provide design revision review and control. As required,
maintain a record of field deviations and review changes to maintain objectives of
the project.
Maintain separate electronic logs of submittals and RFl's and indicate all relevant
information such as receipt and return dates, review action, who reviewed,
copies distributed, etc. Track all submittals and RFI's through the review and
response process.
Electronic submittal logs will be maintained providing the relevant document
tracking parameters.
Perform rapid, timely review and response in accordance with the approved
project schedule, schedule updates, and Contract Documents;
10
Task 5-Contract Closeout
5.1 Closeout Management
The ENGINEER shall:
Plan for and create contractual conditions for acceptance of the Work in the
Contract.
Monitor startup activities as required by the Contract Documents in Section
01650, which describes the Contractor's responsibilities for startup, and Sections
13322 and 13323, which describe the responsibilities of the Contractor and the
CITY's system integrator (MC) with respect to the SCADA system on-site, and
the sequence of operations to assure proper operation of the SCADA system
with respect to the new equipment.
Require Contractor to submit warranties and O&M Manuals for all furnished
equipment and materials. Assist in project acceptance. Receive warranties,
guarantees, and O&M Manuals from Contractor.
Identify milestones for final acceptance.
Ensure that project closeout deliverables include, as a minimum, the following:
1. Bound copies of warranties & guarantees;
2. Compliance certifications and O&M manuals from equipment
manufacturers;
3. Per permit conditions, provide certifications of completion, and clearances
from regulatory agencies;
4. Record Drawings, per Contract Specifications, with electronic copies on
CD-ROM;
5. Contractor's Warranty.
5.2 Final Walk Through/Punch List
ENGINEER shall participate in final walk-through, prepare punch lists for
recommendation of final acceptance and follow up with the contractor to verify
satisfactory completion of punch list items.
5.3 Certification of Completion/Record Drawings.
ENGINEER shall prepare record drawings using record information fumished by
the contractor and provide to the CITY two certified prints, one reproducible set and
one CD-ROM computer disk copy of the record drawings. These drawing will be
submitted to the CITY as part of the final certification and will be certified by the
Engineer of Record.
11
5.40peration and Maintenance Manual (Addendum/Modification of Existing
APCF manuals)
ENGINEER shall prepare an Operation and Maintenance Manual (0 & M) using
record information furnished by the contractor and provide to the CITY two copies,
one reproducible set and one CD-ROM computer disk copy of the 0 & M manuals.
This manual is intended to be an addendum/modification to existing manuals for the
two APCF's covered by this project.
The following subtasks shall be included:
Preparation of draft and final Operations and Maintenance (O&M)
Manuals for digester heating, mixing, and gas handling/safety systems
installed at Northeast and Marshall St. APCF's, according to the following
outline:
Chapter 1 Safety
Chapter 2 Introduction/Description of FacilitiesfTheory of Operation
Chapter 3 Operating Strategy/ProceduresfTroubleshooting
Chapter 4 Maintenance
A detailed description of the information contained in each chapter is
provided below:
Chapter 1 Safety
Safety of the operators is paramount. This chapter will include:
1. Digester and natural gas, and boiler/hot water system safety and
handling.
2. Outline the protective safety gear and instrumentation.
3. First aid procedures for acute toxic exposure to gases.
4. Emergency treatment.
5. Emergency procedures for significant gas leaks/explosive mixtures
of air and digester gas.
Chapter 2 Introduction/Description of FacilitieslTheory of
Operation
Chapter 2 will describe the purpose of the 0 & M manual and the various
roles that the manual will perform. Chapter 2 will include:
1. A description of the facilities outlining the various components used
for the handling of the digester and natural gas, and digester
heating and mixing.
2. The theory of operation describing the operations of these
components including:
a. Anaerobic digestion process and process control
To enhance the overall understanding of these systems, this chapter will
include and make reference to 11" x 17" print-outs of the process and
instrumentation drawings 1-01, 1-02, 1-03, and 1-04 as appropriate.
Chapter 3 Operating Strategy/ProcedureslTroubleshooting
12
Operating procedures will consist of safety check information, pre-startup,
continued operation and shut-down conditions needed to operate the
components used in the anaerobic digestion process. References to both
the engineering contract specifications, drawings and vendor supplied
O&M manuals will be discussed as applicable.
The Operating Strategy and Process Troubleshooting will pose
Indication/Observation scenarios and relate these to Probable Causes,
and items to check and/or monitor as possible remedies.
Chapter 4 Maintenance
Chapter 4 will discuss preventative procedures to be used in maintaining
equipment in good working order. This chapter will make references to
supplied vendor O&M manuals as applicable. Operations will need to
insure that O&M manuals are available in order to appropriately use this
chapter.
Task 6.0 -Allowances
In the event that additional professional services not anticipated or included in the
above tasks become necessary for the satisfactory completion of the project,
ENGINEER may provide the CITY with a scope of work and fee estimate for these
additional services. ENGINEER will provide the additional services for the
additional fee mutually agreed upon by ENGINEER and CITY, and upon written
authorization from the CITY. If upon prior written approval by the CITY,
ENGINEER's actual cost incurred for outside professional services should exceed
the budgeted amounts listed in Attachment B, ENGINEER shall be entitled to
additional fees equal to the difference between the actual incurred cost and the
budgeted amount. The total fee for all authorizations under this task is included in
the total BASIC FEE and shall not exceed ten percent (10%) of the Project Budget.
There is an optional allowance beyond the allowances discussed in the previous
paragraph for periodic review of the contractor's safety plans and procedures by an
OSHA certified safety engineer, to be authorized at the discretion of the City,
valued at up to approximately $7160.
A. BUDGET (ENGINEER'S COMPENSATION)
The ENGINEER shall submit, with each monthly progress report, an invoice for the
work completed. The invoiced fee earned will be expressed as Cost times
Multiplier Basis for all labor hours (Multiplier of 3.10). Sub-consultant costs are
actual costs incurred. Other Direct Costs (ODCs) are actual costs incurred for travel
to the construction site, printing, copying, phones calls, etc. ODC expenses are
compensated at cost at a multiplier of 1.00.
The TOTAL FEE, not including specific allowances and outside testing laboratory
services, for this project shall not exceed $374,904. The allowances to be
authorized per the City's discretion are initially estimated to not exceed $52,648,
and the allowance for the outside testing laboratory is estimated not to exceed
$50,000. The Task and Subtask breakdown of the FEE is presented in Attachment
13
B, Project Budget.
The bases for the costs developed are:
. A construction period of up to 45 weeks on site
. Resident Project Representative time averages 40 hours per week
. Clerical/administrative support for on site work averages 16 hours per week
. Review of no more than 100 submittals
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CITY OF CLEARWATER
PUBLIC WORKS ADMINISTRATION
WORK ORDER INITIATION FORM
ATTACHMENT "C"
DELIVERABLES
The design plans shall be produced on stable-based mylar or vellum material, 24" x 36"
at a scale of 1" = 20' unless approved otherwise. Upon request, the consultant shall deliver
all drawing files in digital format with all project data in Land Development Desktop (LDD)
Rl or R2 format, including all associated dependent files. When LDD is not available, upon
approval by the City Of Clearwater Project Manager, a standard ASCII file can be delivered
with all associated drawing and dependent files. The ASCII file shall be a comma or space
delimited containing code, point number, northing, easting, elevation and description for
each data point. Example below space delimited ASCII file:
POINT # NORTHING EASTING ELEV DESC
284 1361003.838 264286.635 25.00 Bev
or comma delimited ASCII file:
284,1361003.838,264286.635,25.00, BCV (PNEZD)
An AutoCAD Release Fourteen (14) drawing or later drawing file shall be submitted.
NOTE: If approved deviation from Clearwater or Pinellas County CAD standards are
used the consultant shall include all necessary information to aid in manipulating the
drawings including either PCP, CTB file or pen schedule for plotting. The drawing file
shall include only authorized fonts, shapes, line types or other attributes contained in
the standard AutoDesk, Inc. release. All block references and references contained
within the drawing file shall be included. Please address any questions regarding format
to Mr. Tom Mahony, at (727) 562-4762 or email addresstmahony@clearwater-fl.com
14
f70 2.
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City Council
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Tracking Number: 970
Actual Date: 12/02/2004
Subject / Recommendation:
Adopt Resolution 04-37 establishing the intent to reimburse certain Stormwater project costs
incurred with proceeds of future tax-exempt financing.
Summary:
A Stormwater rate study was completed and resulted in the City Council approving an 8.00%
rate increase in FY 2006 and annual rate increases of 3% per year for FY 2007 through FY 2009.
These rate increases are sufficient to provide for operations, capital projects, and debt service on
bonds.
The rate study identified a need for approximately $34.4 million in capital projects from FY 2005
through FY 2009, with bonds to be issued in FY 2006 of approximately $7,223,302 and in FY
2008 of approximately $10,542,926 to fund a portion of the needed capital improvements. The
FY 2006 bond issue is expected to partially finance the following projects:
Stevenson Creek Estuary Restoration for a projected amount of $5,324,710
Alligator Creek Drainage Improvements for a projected amount of $1,898,590
The date of issuance will be determined at a later date based on market conditions.
The Stormwater Fund will be incurring expenses on these projects prior to the issuance of the
bonds.
This reimbursement resoluiton will allow for the City to be reimbursed from the Bond proceeds.
Originating: Finance
Section Other items on City Manager Reports
Category: Bonding
Financial Information:
Review Approval
Marcie Simmons
11-08-2004 17:35:53
Garrv Brumback
11-12-2004 13:36:06
Pam Akin
11-09-2004 14:40: 16
Bill Horne
11-14-2004 20:54:22
Cyndie Goudeau
11-17-2004 11 :54: 51
RE. f=N - 2..
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RESOLUTION NO. 04-37
A RESOLUTION OF THE CITY OF CLEARWATER,
FLORIDA ESTABLISHING ITS INTENT TO REIMBURSE
CERTAIN PROJECT COSTS INCURRED WITH
PROCEEDS OF FUTURE TAX-EXEMPT FINANCING;
PROVIDING CERTAIN OTHER MATTERS IN
CONNECTION THEREWITH; AND PROVIDING AN
EFFECTIVE DATE.
WHEREAS, the City Council of the City of Clearwater, Florida (the "Issuer") has
determined that the need exists to construct certain capital improvements to the City's
stormwater system including but not limited to the Stevenson Creek Estuary
Restoration and Alligator Creek Drainage Improvements together with engineering work
regarding the stormwater facilities (collectively, the "Project");
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF CLEARWATER, FLORIDA THAT:
SECTION 1. AUTHORITY. This Resolution (hereinafter called the "Resolution")
is adopted pursuant to the provisions of the Florida Constitution, Chapter 166, Florida
Statutes, and other applicable provisions of law.
SECTION 2. DECLARATION OF INTENT. The Issuer hereby expresses its
intention to be reimbursed from proceeds of a future tax-exempt financing for capital
expenditures to be paid by the Issuer in connection with the construction of the Project.
Pending reimbursement, the Issuer expects to use funds on deposit in its stormwater
utility funds, general funds and other funds legally available to pay a portion of the cost
of the Project. It is not reasonably expected that the total amount of debt to be incurred
by the Issuer to reimburse itself for expenditures paid with respect to the Project will
Resolution 04-37
exceed $7,300,000. This Resolution is intended to constitute a "declaration of official
intent" within the meaning of Section 1.150-2 of the Income Tax Regulations.
SECTION 3. SEVERABILITY. If anyone or more of the provisions of this
Resolution shall for any reason be held illegal or invalid, such illegality or invalidity shall
not affect any other provision of this Resolution, but this Resolution shall be construed
and enforced as if such illegal or invalid provision had not been contained therein.
SECTION 4. REPEALING CLAUSE. All resolutions or orders and parts thereof
in conflict herewith to the extent of such conflicts, are hereby superseded and repealed.
SECTION 5. EFFECTIVE DATE. This resolution shall take effect immediately
upon its adoption.
PASSED AND ADOPTED this
day of
.2004.
Brian J. Aungst
Mayor
Approved as to form:
Attest:
Pamela K. Akin
City Attorney
Cynthia E. Goudeau
City Clerk
Resolution 04-37
pu-\
12-5
City Council
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Tracking Number: 952
Actual Date: 12/02/2004
Subject / Recommendation:
Pass Ordinance No. 7321-04 on first reading increasing domestic, lawn water, and wastewater
collection utility rates by 7% effective October 1, 2005, with subsequent 6% increases to be
effective October 1, 2006, October 1, 2007 and October 1, 2008 and increasing reclaimed water
rates by 29.44% effective October 1, 2005, then metering reclaimed water and implementing
the proposed reclaimed water rates that are projected to result in a 29.44% increase to the
average reclaimed water customer effective October 1, 2006 followed by a 6% increase to those
reclaimed water rates effective October 1, 2007, and October 1, 2008,
Summary:
The utility rate increase is needed to provide funding to maintain compliance with debt service
coverage requirements supporting the continuation of capital improvement projects needed to
sustain the City's utility infrastructure. Infrastructure improvements are needed to maintain
compliance with federal regulations concerning water supply and treatment and the wastewater
collection system, maintain reliability of the water pollution control facilities due to age of the
infrastructure, and to expand the reclaimed water system. Master Plans have been completed for
all of the systems in Public Utilities and the capital improvements program has been revised to
meet future infrastructure needs.
The last rate increase effective March 1, 2001 provided a series of 7% increases over a 5-year
period applicable to water and wastewater rates only. The last rate increase in this approval
became effective October 1, 2004. These rates will remain in effect as approved.
Burton & Associates has completed a water, wastewater, and reclaimed water utility rate study
to cover 5 years of operations. The current study covers the period FY 2005 through FY 2009
and recommends increasing the existing reclaimed water rates in FY 2006, then adopting a new
reclaimed water rate structure to be implemented when the City is able to meter reclaimed
water, projected to be FY 2007. This would allow for improved equity between reclaimed water
customers and water and wastewater customers, since reclaimed water rates have not been
increased since 1998, whereas regular increases have been implemented to the water and
wastewater rates. This study recommends increasing reclaimed water rates by 29.44% in FY
2006, implementing new reclaimed water rates in FY 2007 that would result in an increase of
29.44% to the average reclaimed water customer, and applying subsequent 6% per year
reclaimed water rate increases thereafter (FY 2008 and FY 2009), thus aligning those reclaimed
water rate increases with
City Council
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the annual water and wastewater rate increases. By doing so, the overall water and wastewater
rate increases from FY 2006 through FY 2009 could be reduced to 6% annually instead of 7%, if
the proposed reclaimed water rates are not implemented.
Metering of reclaimed water and raising the reclaimed water rates as proposed, lowers the rate
of increase to all water and wastewater customers, allows the reclaimed water system to
become more self-sufficient over time, provides the possibility of retaining 50% S.W.F.W.M.D.
grant reimbursements on reclaimed water capital projects, and allows more customers to be
connected to the reclaimed water system over time, due to increased demand management.
Also factored into the rate study are continued wholesale potable water purchases from Pinellas
County at their suggested increased rates. These rates increase from the present $2.30/1000
gallons to $3.18/1000 gallons over the timeframe of the study. The last two years reflect
information from the County indicating 7% per year wholesale potable water rate increases, due
to the County's proposed blending plant, following 3 years of 10% annual increases.
Included in the ordinance changes are user fee schedule changes to align cost of providing
particular services with actual expenses. Some fees were added, some were raised and some
we lowered based on current costs.
A rate restructuring study is also currently underway by Burton & Associates reviewing the water
and wastewater rate structures.
A copy of the Water & Wastewater FY 2004 Revenue Sufficiency Analysis Final Report and the
Report on Reclaimed Water Cost and Usage are available in the Official Records and Legislative
Services office for review.
Oriqinatinq: Public Utilities
Section Other items on City Manager Reports
Category: Code Amendments, Ordinances and Resolutions
Financial Information:
Review ADproval
Andv Neff 10-25-2004 15:49:00
Garrv Brumback 11-04-2004 07:57:52
Leslie Douaall-Sides 10-26-2004 16:48:09
Bill Horne 11-05-2004 08:42:24
Cyndie Goudeau 11-05- 2004 08:58:28
ORDINANCE NO. 7321-04
AN ORDINANCE OF THE CITY OF CLEARWATER,
FLORIDA, RELATING TO THE SCHEDULE FOR
DOMESTIC WATER, LAWN WATER, RECLAIMED
WATER AND WASTEWATER COLLECTION UTILITY
RATES; AMENDING CHAPTER 32 UTILITIES, ARTICLE IX
RECLAIMED WATER SYSTEM, SECTION 32.352
DEFINITIONS (16); SECTION 32.374 METER
REQUIREMENTS; APPENDIX A, ARTICLE XXIV UTILITIES
- GENERAL AND DEPOSITS, (2)(a) WATER; ARTICLE
XXV PUBLIC WORKS -- FEES, RATES AND CHARGES,
(2)(a) WATER METER CONNECTION CHARGES AND
FEES FOR TAPS ON WATER MAINS, BACKFLOW
PREVENTION DEVICE INSTALLATIONS, AND FIRE TAPS
ON WATERMAINS; FIRE HYDRANT INSTALLATION
CHARGES; (3)(a) WATER RATES; (3)(b) WASTEWATER
COLLECTION UTILITY RATES; (3)(f) RECLAIMED WATER
RATES; AND (4) MISCELLANEOUS ADDITIONAL
CHARGES; CLEARWATER CODE OF ORDINANCES, AS
AMENDED BY CITY OF CLEARWATER, FLORIDA
ORDINANCE NOS. 6218, 6220, 6801, 6587, 6692 and
6695; PROVIDING AN EFFECTIVE DATE.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY
OF CLEARWATER, FLORIDA:
Section 1. Chapter 32, Article IX. Reclaimed Water System. Section 32.352.
Definitions. Clearwater Code of Ordinances, as amended by City of Clearwater, Florida
Ordinance No. 6220. is amended as follows:
(16) Open space means 3 13rge portion of mostly V3c3nt property,
measured in 3CroS, for which the city provides recl3imed water on 3 cest per tenth of 3n
3Cro of pervious are3 b3sis.
M(16) Pervious area mean~ the total property area of a customer, in
acres, less the impervious area as computed for stormwater management utility billing
purposes, rounded to the nearest tenth of an acre.
(43)(17) Point of delivery or service connection means the terminal end of a
service line from the public reclaimed water system at the downstream end of the meter
set, hose bib or other device installed and maintained by the city.
~(18) Potable water means water that does not contain objectionable
pollution, contamination, minerals or infection and that is considered satisfactory for
domestic consumption~~ in short, suitable for drinking purposes.
Ordinance No. 7321-04
~(19) Property owner shall mean the owner of property receiving
reclaimed water service.
~(20)
PVC pipe shall mean polyvinyl chloride pipe.
~(21) Reclaimed water shall mean water that has received advanced
waste treatment with high level disinfection pursuant to Chapter 17-610, FAC.
~(22) Service line shall mean that conduit to convey reclaimed water feJ:F:R
from the distribution main to the customer's property line.
~(23) Shutoff valve means a required, manually operated valve provided,
installed and maintained by the customer downstream from the point of delivery that
controls the reclaimed water flow to the customer's own system using reclaimed water.
~(24) Single family means a detached building or portion thereof
designed for one dwelling unit.
~(25) Transmission main shall mean a conduit that conveys reclaimed
water from the treatment plant to a booster pumping station or a trunk main.
~(26)
Triplex means a three family dwelling as defined in section 35.11.
Section 2. Chapter 32. Article IX. Reclaimed Water System. Section 32.374.
Meter Requirements. Clearwater Code of Ordinances. as amended by City of
Clearwater. Florida Ordinance No. 6692. is amended as follows:
(1) The city will Rat normally require reclaimed water meters for residential
reclaimed water customers or golf coursos and etRef open space
recreational facilities. Hov./ovor, the director will require meter
installations at any industrial/commorcial, non irrigation rouso including
air conditioning systom coolant water, or multi f3mily dwelling unit
location where reclaimed 'Nater is availablo.
(2) Appropriately sized meters shall be required for all commercial, industrial,
and multi-family dwelling unit uses as determined by the director.
(3) Reclaimed water meters are not normally required for oolf courses with
existino aoreements with the city for the supply of reclaimed water. These
aqreements are subiect to reneqotiation for cost increases for reclaimed
water and oolf courses may be required to meter.
Section 3. Appendix A. Article XXIV. UTILITIES-GENERAL AND DEPOSITS.
Section (2)(a) Water. Clearwater Code of Ordinances. as amended by City of
Clearwater. Florida Ordinance No. 6218. is amended as follows:
2
Ordinance No. 7321-04
(2) Deposits for service:
(a) Water:
1. Domestic water service. Each meter service shall be secured by a
minimum deposit of $20.00 or two times the minimum monthly charge or
two times the average monthly bill for domestic water service, whichever
is greatest.
2. Lawn water service. Each lawn meter service shall be secured by a
minimum deposit of $20.00 or two times the minimum monthly charge or
two times the average monthly bill for lawn water service, whichever is
greatest.
3. Reclaimed water service. Each reclaimed water service account shall
be secured by a minimum deposit of $20.00 or two times the minimum
monthly charQe or two times the averaQe monthly bill for reclaimed water
service, whichever is Qreatest.
34. Temporary potable service. Temporary potable service shall be
secured by a deposit according to the following table:
Less than 1" meter. . . . . 80.00
1" meter. . . . . 160.00
1 1/2" meter. . . . . 500.00
2" meter. . . . .900.00
3" meter. . . . . 1,250.00
4" meter. . . . . 2,500.00
45. Temporary nonpotable service. Temporary nonpotable water or
"hydrant meter" service shall be secured by a minimum deposit of
$500.00 plus an amount sufficient to cover the cost of water consumed
and any other charges incurred. Such service will be provided by a
temporary meter on a fire hydrant. Charges will be at the same rate as for
a two-inch lawn meter. The final bill shall be for a sum equal to the
minimum charge, the cost of water consumed, and a service charge of
$25.00.
56. Domestic water service, one week maximum. Domestic water service
for not more than seven consecutive days, upon application by property
owner or the owner's agent, shall be secured by a deposit of $65.00.
97. Domestic water service, three-day maximum. Domestic water service
for not more than three consecutive days, upon application by property
owner or the owner's agent, shall be secured by a deposit of $40.00.
3
Ordinance No. 7321-04
Section 4. Appendix A. Article XXV, PUBLIC WORKS -- FEES. RATES AND
CHARGES. (2)(a) Water meter connection charQes and fees for taps on water mains.
backflow prevention device installations. and fire taps on water mains; fire hydrant
installation charoes. Clearwater Code of Ordinances. as amended bv City of
Clearwater. Florida Ordinance No. 6598. is amended as follows:
(2) Connection charges, fees and taps on mains. The following charges and
fees shall be payable to the city upon application:
(a) Water meter connection charges and fees for taps on water
mains, backflow prevention device installations, and fire taps on
water mains; fire hydrant installation charges:
Water Meter Connection Charges
Less than 1" meter with 3/4" service line. . . . . $ 210.00
1" meter with 1" service line. . . . . 280.00 305.00
1 1/2" meter with 1 1/2" service line. . . . . 530.00 675.00
2" meter with 2" service line. . . . . 700.00 935.00
3" meter on 6" main (4" tap) . . . . . 2,950.00 3.960.00
3" meter on 8" main (4" tap) . . . . . 2,965.00 3.965.00
3" meter on 10" main (4" tap) . . . . . 2,985.00 3.930.00
3" meter on 12" main (4" tap) . . . . . 3,035.003.960.00
3" meter on 16" main (4" tap).. . . . 3,085.004,025.00
3" meter on 20" main (4" tap) . . . . . 3,130.004.040.00
4" meter on 6" main. . . . . 3,255.00 4.555.00
4" meter on 8" main. . . . . 3,270.00 4.555.00
4" meter on 10" main. . . . . 3,290.00 4.520.00
4" meter on 12" main. . . . . 3,310.004.550.00
4" meter on 16" main. . . . . 3,390.00 4.605.00
4" meter on 20" main. . . . . 3,435.004.630.00
6" meter on 6" main. . . . . 4.800.00
4
Ordinance No. 7321-04
Larger meters and taps shall be charged at cost.
All charges for services, pipe and meters outside the city limits shall be 25
percent additional.
Taps on Water Mains
2" tap on 2" main. . . . . 260.00 265.00
2" tap on 4" main. . . . . 315.00270.00
2" tap on 6" main. . . . . 330.00 280.00
2" tap on 8" main. . . . . 335.00 285.00
2" tap on 10" main. . . . . 390.00 290.00
2" tap on 12" main. . . . . 390.00 295.00
2" tap on 16" main. . . . . 470.00300.00
2" tap on 20" main. . . . . 470.00310.00
4" tap on 4" main. . . . . 920.00 1,165.00
4" tap on 6" main. . . . . 935.00 1,170.00
4" tap on 8" main. . . . . 955.00 1,175.00
4" tap on 10" main. . . . . 1,070.00 1.180.00
4" tap on 12" main. . . . . 1,125.00 1.185.00
4" tap on 16" main. . . . . 1,275.00 1.190.00
4" tap on 20" main. . . . . 1,325.00 1,200.00
6" tap on 6" main. . . . . 1,130.00 1,260.00
6" tap on 8" main. . . . . 1,195.00 1,265.00
6" tap on 10" main. . . . . 1,255.00 1.270.00
6" tap on 12" main. . . . . 1,355.00 1,280.00
6"tap on 16" main..... 1,155.001,320.00
5
Ordinance No. 7321-04
6" tap on 20" main. . . . . 1,670.00 1,350.00
8" tap on 8" main. . . . . 1,270.00 1.450.00
8" tap on 10" main. . . . . 1,410.00 1.460.00
8" tap on 12" main. . . . . 1,475.00 1.530.00
8" tap on 16" main. . . . . 1,555.00 1.540.00
8" tap on 20" main. . . . . 1,770.00 1.560.00
12" tap on 12" main. . . . . 2,060.002.215.00
12" tap on 16" main. . . . . 2,205.00 2.225.00
12" tap on 20" main. . . . . 2,365.00 2.250.00
All charges for services, pipe and meters outside the city limits shall be 25
percent additional.
Backflow Prevention Device Installation
Charges for furnishing and installing reduced-pressure (RP) or double-
check (DC) backflow prevention devices, when required by city ordinance,
are as follows:
New Customers
Size Single P3r311el Single Par311el
(inches) DC QG RP RP
% $ 210.00 $ 355.00 $ 260.00 $ 460.00
140.00 170.00
3/4 (below 320.00 N.JA N/A N.JA
ground, in box
required with
lawn meter)
1 225.00 175.00 385.00 285.00 195.00 500 _ 00
1 (below ground, 335.00 N.JA N/A N.JA
in box required
with lawn meter)
1% 320.00 365.00 595.00 420.00 360.00 785.00
2 395.00 385.00 770.00 495.00 420.00 975.00
3 1,280.00 2,560.00 1,485.00 2,970.00
1.250.00 1.540.00
6
Ordinance No. 7321-04
I
!
i
I
I
4 1,710.00 3, 165.00 1,960.00 3,700.00
1.590.00 1.965.00
6 2,345.00 4,560.00 2,655.00 5,180.00
2.820.00 3.115.00
8 3,910.00 (Time 7,650.00 4,755.00 (Time 9,335.00
& Materials) & Materials)
Standard installation is above ground.
Existing Customers
Si2e Single Parallel Single P~lrallel
(inches) GG GG RP RP
~ $ 100.00 $ 200.00 $ 140.00 $ 280.00
3.'4 (below 210.00 NIA NIA NIA
ground, in box
required v./ith
lawn meter)
4- 105.00 210.00 145.00 290.00
1 (below ground, 215.00 NIA NIA NIA
in box required
with lawn meter)
~ 235.00 470.00 315.00 630.00
~ 285.00 570.00 365.00 730.00
3 1,140.00 2,280.00 1,370.00 2,740.00
4 1,255.00 2,510.00 1,560.00 3,120.00
e 1,775.00 3,550.00 2,305.00 4,610.00
8 2,975.00 5,950.00 3,680.00 7,360.00
Standard installation is aboveground.
Additional Fees for Detector Check and Double Detector Check
Installation on Fire Lines, exclusive of any required tap and charge for
such tap
NO'.\' Customers
1" Residential Fire Service DC (includes 1" Residential Fire Service meter
and Tap). . . . . $680.00
2" single detector check with 5/8" bypass meter. . . . . $900.00 835.00
4" double detector check with 5/8" bypass meter. . . . . 2,150.00 1.615.00
7
Ordinance No. 7321-04
6" double detector check with 5/8" bypass meter. . . . . 2,680.00 2.635.00
8" double detector check with 5/8" bypass meter. . . . . 3,730.00 3.420.00
Existing Customers
2" single detector check '....ith 5/8" bypass meter. . . . . 835.00
4" double detector check '.\lith 5/8" bypass meter. . . . . 1,490.00
6" double detector check with 5/8" bypass meter. . . . . 2,025.00
8" double detector check '.\lith 1" bypass meter. . . . . 3,075.00
Detector check installations not included in above table will be charged to
customers on a time and materials basis.
All charges for services, pipe and meters outside the city limits shall be 25
percent additional.
Fire Hydrant Installation
Charge for furnishing and installing one fire hydrant exclusive of the
required tap and charge for such tap. . . . . $775.00
Charges for any hydrants that are not adjacent to the main or that require
additional piping, restoration, materials or labor shall be increased by
actual material and labor costs, plus overhead.
Section 45. Appendix A, Article XXV, PUBLIC WORKS -- FEES, RATES AND
CHARGES, (3)(a) Water Rates, Clearwater Code of Ordinances, as amended by City
of Clearwater, Florida Ordinance No. 6598, is amended as follows:
(3) Rates:
(a) Water rates. Water rates for all water furnished by the city shall be
as follows:
1. Domestic water rates shall be the following based on
monthly consumption and will take effect as shown in the
following table, and shall remain in effect thereafter unless
amended:
Meter Size JHty ApfU Janu~H)' October October
October October October 1,2003Z 1,2004~
1,20044 1,2002.Q 1,20032
8
Ordinance No. 7321-04
Under 1-inch:
Minimum $ 3:-Q.7 $ 3M $~ $~ $~
charge with 10.59 11.34 12.03 12.75 13.53
usage up to
3,000
gallons
Plus, from ~4.29 ~4.59 &7& 4.87 4*)4 5.16 4:29 5.47
3,001 to
9,000
gallons, per
1,000
gallons
Plus, from ~5.09 4-.4e 5.45 4A-a 5.78 4:-7e 6.13 &:W 6.50
9,001
gallons up,
per 1,000
gallons
1-inch:
Minimum ~ ~ ~ ~ ~
charge with 24.71 26.46 28.07 29.75 31.57
usage up to
7,000
gallons
Plus, from ~4.29 ~4.59 &7& 4.87 4*)4 5.16 4:29 5.47
7,001 to
40,000
gallons, per
1,000
gallons
Plus, from ~5.09 4:-1-e 5.45 4-:4& 5.78 4:-7e 6.13 &J)9 6.50
40,001
gallons up,
per 1,000
gallons
1 1/2-inch:
9
Ordinance No. 7321-04
Minimum 269. 00 288.00 308.00 330.00 353.00
charge with 353.00 378.00 401.00 425.00 451.00
usage up to
100,000
gallons
Plus, from ~4.29 ~4.59 ~4.87 ~5.16 ~5.47
100,001 to
140,000
gallons, per
1,000
gallons
Plus, from ~5.09 ~ 5.45 4:45 5.78 ~6.13 aJ)9 6.50
140,001
gallons, per
1,000
gallons
2-inch:
Minimum 626. 77 671.04 717.64 768.90 822 A 9
charge with 822.49 880.74 934.33 990.25 1.050.83
usage up to
233,000
gallons
Plus, from ~4.29 ~4.59 ~4.87 ~5.16 ~5.47
233,001 to
343,000
gallons, per
1,000
gallons
Plus, from ~5.09 ~ 5.45 4:45 5.78 ~6.13 aJ)9 6.50
343,001
gallons, per
1,000
gallons
3-inch or 2-inch in
manifold:
10
Ordinance No. 7321-04
Minimum 965.71 1,033.92 1,105.72 1,184.70 1 ,267.27
charge with 1 .267.27 1.357.02 1.439.59 1.525.75 1.619.09
usage up to
359,000
gallons
Plus, from ~4.29 ~4.59 ~4.87 ~5.16 ~5.47
359,001 to
474,000
gallons, per
1,000
gallons
Plus, from ~5.09 4Ae 5.45 4Aa 5.78 4-.-7e 6.13 a.w 6.50
474,001
gallons, per
1,000
gallons
4-inch:
Minimum 1,858.79 1,990.08 2, 128.28 2,280.30 2,439.23
charge with 2.439.23 2.611.98 2.770.91 2.936.75 3.116.41
usage up to
691,000
gallons
Plus, from ~4.29 ~4.59 ~4.87 ~5.16 ~5.47
691,001 to
979,000
gallons, per
1,000
gallons
Plus, from ~5_09 4Ae 5.45 4Aa 5.78 4-.-7e 6.13 a.w 6.50
979,001
gallons, per
1,000
gallons
6-inch:
11
Ordinance No. 7321-04
Minimum 4,774.75 5,112.00 5,467.00 5,857.50 6,265.75
charge with 6.265.75 6.709.50 7.117.75 7.543.75 8.005.25
usage up to
1,775,000
gallons
Plus, from ~4.29 ~4.59 &7a 4.87 ~5.16 4-,29 5.47
1,775,001 to
2,025,000
gallons, per
1.000
oallons
Plus, from ~5.09 4-A-9 5.45 4-:4a 5.78 4;1.9 6.13 &:Q9 6.50
2,025,001
gallons, per
1,000
gallons
8-inch:
Minimum 8,070.00 8,640.00 9,240.00 9,900.00 10,590.0
charge with 10.590.0 11.340.0 12.030.0 12.750.0 Q
usage up to Q Q Q Q 13.530.0
3,000,000 Q
gallons
Plus, from ~4.29 ~4.59 &7a 4.87 ~5.16 4-,29 5.47
3,000,001 to
3,413,000
gallons, per
1,000
gallons
Plus, from ~5.09 4-A-9 5.45 4-:4a 5.78 4.-79 6.13 &:Q9 6.50
3,413,001
gallons, per
1,000
gallons
2. Lawn water meters. Lawn water rates shall be as follows:
Lawn meter size.
Under 1-inch: October October October October October
1 . 2004 1.2005 1.2006 1.2007 1.2008
12
Ordinance No. 7321-04
Base charge, with no ~3.78 ~4.04 ~4.28 ~4.54 ~4.81
water allowance....
Plus, up to 2,000 ~4.60 J;1.9 4.92 ~5.22 4:-3() 5.53 ~5.86
gallons, per 1,000
gallons....
Plus, from 2,001 ~6.33 aA-7 6.77 ~7.18 ~7.61 ~8.07
gallons, per 1,000
gallons....
1-inch:
Base charge, with no 8M- ~ ~ ~ ~
water allowance.... 11.34 12.13 12.86 13.63 14.45
Plus, up to 7,000 ~4.60 J;1.9 4.92 ~5.22 4:-3() 5.53 ~5.86
gallons, per 1,000
gallons....
Plus, from 7,001 ~6.33 aA-7 6.77 ~7.18 ~7.61 ~8.07
gallons, per 1,000
gallons....
1 1/2-inch
Base charge, with no ~ 4€h2G ~ a2-:9a a€h7O
water allowance.... 56.70 60.67 64.31 68.17 72.26
Plus, up to 9,000 M4- 4.60 J;1.9 4.92 ~5.22 4:-3() 5.53 ~5.86
gallons, per 1,000
gallons....
Plus, from 9,001 ~6.33 aA-7 6.77 ~7.18 ~7.61 ~8.07
gallons, per 1,000
gallons... .
2-inch:
Base charge, with no 120.96 129.36 138.60 118.26 158.76
water allowance.... 158.76 169.87 180.06 190.86 202.31
13
Ordinance No. 7321-04
Plus, up to 40,000 ~4.60 ~4.92 4-:Q2 5.22 ~5.53 4J)() 5.86
gallons, per 1,000
gallons....
Plus, from 40,001 ~6.33 ~6.77 ~7.18 ~7.61 ~8.07
gallons, per 1,000
gallons... .
3-inch or two 2-inch in
manifold:
Base charge, with no 239.04 255.64 273.90 292.99 313.74
water allowance.... 313.74 335.70 355.84 377.19 399.82
Plus, up to 100,000 ~4.60 ~4.92 4-:Q2 5.22 ~5.53 4J)() 5.86
gallons, per 1,000
gallons....
Plus, from 100,001 ~6.33 ~6.77 ~7.18 ~7.61 ~8.07
gallons, per 1,000
gallons....
4-inch:
Base charge, with no 460.80 492.80 528.00 564.80 604.80
water allowance.... 604.80 647.14 685.97 727.13 770.76
Plus, up to 233,000 ~4.60 ~4.92 4-:Q2 5.22 ~5.53 4J)() 5.86
gallons, per 1,000
gallons....
Plus, from 233,001 ~6.33 ~6.77 ~7.18 ~7.61 ~8.07
gallons, per 1,000
gallons....
6-inch:
Base charge, with no 1,391.04 1,487.64 1,593.90 1,704.99 1,825.74
water allowance.... 1.825.74 1.953.54 2.070.75 2.195.00 2.326.70
Plus, up to 359,000 ~4.60 ~4.92 4-:Q2 5.22 ~5.53 4J)() 5.86
gallons, per 1,000
gallons....
14
Ordinance No. 7321-04
Plus, from 359,001 ~6.33 a.A+ 6.77 ~7.18 ~7.61 ~8.07
gallons, per 1,000
gallons....
3. Standby and other charges for fire protection systems. For
fire hydrants and fire protection systems on private property
connected to the city water system, the customer shall pay a
monthly standby charge as set forth in the following table:
Facility Monthly
Charge
Fire hydrants, per hydrant.... $ 5.00
Fire protection systems, based on fire line size, per
building:
6 inches or less.... 5.00
8 inches.... 9.00
10 inches.... 14.00
12 inches or larger.... 20.00
Water drawn from a fire line and used for purposes other
than firefighting will be charged at the lawn meter rate if the
water does not enter the sewer system, or the domestic rate
if the water enters the sewer system. Such charges shall be
in addition to the monthly standby charges.
4. Service out of municipal limits. Accounts outside of the
corporate limits of the city shall be subject to a surcharge
equal to 25 percent of the monthly charges.
5. A charge of the monthly minimum for a 1 1/2-inch water
meter is required for a deduct meter for air conditioning
cooling water and similar purposes, but not for lawn irrigation
purposes. This charge shall be required only where a
separate irrigation meter cannot be set in the right-of-way or
easement and the meter reader must physically read and
deduct consumption for billing purposes.
15
Ordinance No. 7321-04
6. The water rates shall be adjusted periodically to recover any
increased cost to supply water due to changes in the
wholesale rate the city pays for water. Any such adjustment
shall be a proportionate increase based upon the ratio of
water the city buys wholesale to total system water. Such
rate adjustment shall be recommended by the public works
administrator and approved by the city manager, and a copy
shall be filed with the city clerk following approval.
7. Annual indexing of water rates and lawn water rates. Water
and lawn water rates may be adjusted annually on October 1
based on the Price Index for Water and Wastewater Utilities
established each year by the Florida Public Service
Commission (FPSC). The maximum rate adjustment based
on the Price Index for Water and Wastewater Utilities is 3.5
percent. Such rate adjustment shall be recommended by the
city manager for approval by the city commission council by
ordinance.
8. Dormant accounts. The monthly charge for a dormant lawn
water account shall be at the applicable water lawn base
charge for the size of meter at the premises.
Section 26. Appendix A, Article XXV, PUBLIC WORKS -- FEES, RATES AND
CHARGES, (3)(b) Wastewater Collection Utility Rates, Clearwater Code of Ordinances,
as amended by City of Clearwater, Florida Ordinance No. 6598, is amended as follows:
(b) Wastewater collection utility rates.
1. There is hereby established a uniform schedule of rates and
charges for the use or availability of use of the wastewater
collection system. The wastewater collection utility rate shall
be a monthly fee consisting of a minimum charge for an
assigned volume of domestic water associated with each
water meter size, shown as the basic allowance in the
following table, plus a charge per 1,000 gallons for water
consumed above the assigned volume. Such rates shall
take effect as shown in the following table, and shall remain
in effect thereafter unless amended:
Base Monthly Charge With or Without Consumption
Size of Meter JyJy AJml J~mu3ry October 1 , October 1 , Basic
October 1 , October October 1, 2003Z 2004!! Allowance
200-14 1 , 200~.Q 2003g, (gallons)
Under 1-inch 44.W ~ ~ ~ ~ 3,000 or less
14.58 15.60 16.53 17.52 18.57
16
Ordinance No. 7321-04
1-inch ~ ~ ~ ~ ~ 7,000 or less
34.02 36.40 38.57 40.88 43.33
1 }'2-inch 370.00 396.00 424.00 454.00 486.00 100,000 or less
486.00 520.00 551.00 584.00 619.00
2-inch 862.10 922.68 987.92 1,057.82 1, 132.38 233,000 or less
1 132.38 1.211.60 1.283.83 1.360.72 1 442.27
3-inch or 2 2- 1,328.30 1,421.64 1,522.16 1,629.86 1,744.74 359,000 or less
inch manifold 1 744.74 1.866.80 1.978.09 2096.56 2222.21
4-inch 2,556.70 2,736.36 2,929.84 3,137.14 3,358.26 691,000 or less
3.358.26 3.593.20 3.807.41 4.035.44 4.277.29
6-inch 6,567.50 7,029.00 7,526.00 8,058.50 8,626.00 1,775,000 or
8.626.50 9,230.00 9.780.25 10.366.00 10.987.25 less
8-inch 11 , 1 00. 00 11,880.0 12,720.00 13,620.00 14,580.00 3,000,000 or
14,580.00 Q 16.530.00 17,520.00 18,570.00 less
15,600.0
0
Charge per 3.704.86 ~5.20 ~5.51 4M- 5.84 4:-8e 6.19
1,000 gallons
of water used
over the basic
allowance
2. Service outside of the municipal limits. Accounts outside the
corporate limits of the city shall be subject to a surcharge
equal to 25 percent of the monthly wastewater collection
utility charges.
3. The wastewater collection utility rate schedule shall be
reviewed by the city commission council as a part of the
annual fiscal budget preparation to ensure that adequate
revenues are generated to pay the costs of operation,
maintenance and outstanding bond service requirements.
4. The wastewater collection charges provided in this section
shall not apply to sprinkler irrigation systems separately
metered or deduct meters.
5. Basis where water is unmetered. For accounts existing as of
the effective date of this article, at premises which have a
source of water other than city water system, where the
spent or used water from which goes into the wastewater
collection system, the customer shall pay a charge
according to the schedule provided in this section, based
upon an estimate of the amount of water going into the
wastewater collection system. In the event of a
disagreement as to the amount of such water reaching the
17
Ordinance No. 7321-04
1-
wastewater collection system, then a metering device or
devices shall be installed at the customer's expense to
determine that amount. For accounts established after the
effective date of this article, the customer shall install at the
customer's expense~ a water meter on the water service line,
which meter shall be accessible to city employees for the
purpose of reading the meter. Water consumption measured
by such meter shall be the basis for the wastewater
collection charges for the premises.
6. Annual indexing of wastewater collection utility rates.
Wastewater collection utility rates may be adjusted annually
on October 1 based on the Price Index for Water and
Wastewater Utilities established each year by the Florida
Public Service Commission (FPSC). The maximum rate
adjustment based on the Price Index for Water and
Wastewater Utilities is 3.5 percent. Such rate adjustment
shall be recommended by the city manager for approval by
the city commission council by ordinance.
7. Dormant accounts. The monthly charge for a dormant
account shall be at the applicable sanitary sewer base
monthly charge for the size of meter at that premises.
Section 7. Appendix A. Article XXV. PUBLIC WORKS - FEES. RATES AND
CHARGES. (3)(f) Reclaimed Water Rates. Clearwater Code of Ordinances. as
amended by City of Clearwater. Florida Ordinance No. 6587. is amended as follows:
(f) Reclaimed water rates. The monthly rate for the use or
availability of use of tho reclaimod '."Iator systom shall bo as follows
There is hereby established a uniform schedule of rates and
charoes for the use or availability of use of the reclaimed water
system. The reclaimed water rate shall be a monthly fee consistino
of an availability charae as the basic allowance in the followina
table. plus a charoe per 1.000 oallons of reclaimed water
consumed. Such rates shall take effect as shown in the followina
table. and shall remain in effect thereafter unless amended:
October 1 . October October October October
2004 1.2005 1.2006 1.2007 1.2008
Sinale family.
duplex or triplex
(per domestic
water account;
however. if a
duplex or triplex
has separate
18
Ordinance No. 7321-04
domestic water
accounts for each
dwellinq unit. then
the appropriate
charqe shall be
divided equally
amonq each
account)
and
commercial
/industrial with
less than or equal
to 2 acres of
pervious area
Availability charqe 9.00 11.65 15.08 15.98 16.94
Usaqe - flat 6.00 7.77 N/A N/A N/A
charqe
Commercial
/industrial with
more than 2 acres
of pervious area
or non-irriqation
uses - metered or
multi-family
dwellinq
Availability charqe 9.00 11.65 15.08 15.98 16.94
Usaqe - metered 0.30 0.39 0.47 0.50 0.53
per 1 ,000 qallons
used
Open space
Availabilitv charqe N/A N/A 15.08 15.98 16.94
Per acre of 13.77 17.82 N/A N/A N/A
pervious area, as
defined in Section
32.352
Usaqe - metered N/A N/A 0.47 0.50 0.53
per 1 ,000 qallons
used
19
Ordinance No. 7321-04
1. I rrigation Use
Availability Only Consumption Total
Each Sorvice Connection Provided
a. Single f-3mily, duplex or triplex
(per domestic water account
hm\'ever, if a duplex or triplex
has separate domestic \"later
accounts for each dwelling unit,
then the appropriate charge shall
be divided equally among each account)
$9.00
$6.00
$15.00
b. Multi family
$9.00 $0.30/1000 gals
$9.00+use
c. Commercial/industrial
i. Less than or equal to 2
acres of pervious area
$ 9.00
$6.00
$15.00
ii. Morc than 2 acres of
pervious area or
non irrigation uses
metered
$ 9.00 $0.30/1000 gals $9.00+use
d. Open Space (per acre of
"pervious area," as defined
in section 32.352)
$13.77
2. Non irrigation use metered, includes air conditioning system
coolant v.'ater
$ 0.00* $0.30/1000 gals $9.00+use
2. I\dditional requirements for a commercial property with morc than
one 'I.'ater account, but irrigating under one or morc reclaimed water
accounts, the foes for each reclaimed 'I.'ater connection v.'ill be as
follows:
$ 9.00 $0.30/1000 gals $9.00+use
20
Ordinance No. 7321-04
r---n
One availability fee shall be charged to a property and not to each of the
multiple individual potable water accounts.
An example of this situation is when a commercial property has multiple
stores, etc., as multiple individual accounts, and the property is mostly
parking lot and commercial space. The property owner irrigates or uses
reclaimed water in some manner, but at only one location at the property.
The location utilizing the reclaimed water will be billed for availability and
consumption. If another location on that property needs a reclaimed
water service connection, that account will be billed according to the
schedule above.
*rocl3imed aV3il3blo
Section 8. Appendix A. Article XXV. PUBLIC WORKS -- FEES. RATES AND
CHARGES. (4) Miscellaneous Additional Charqes. Clearwater Code of Ordinances. as
amended bv City of Clearwater. Florida Ordinance No. 6587. is amended as follows:
(4) Miscellaneous additional charges:
(a) Applicable during normal working hours:
1. Turn-on:_Water meter/reclaimed water
connection, per meter/connection. . .20.00
2. Special reading. . . 15.00
3. Collector fee (for each collection attempt). . .5.00 '
4. Check reading (if correct reading has been
made) . . . 15.00
5. Read for change of account. . . 15.00
6. Reset meter,;""Water . . . 50.00
7. Water meter test if meter is correct:
a. Less than or equal to 2-inch size. . .
50.00
b. Greater than 2-inch size. . . 100.00
8. Dishonored check service fee. See section
2.528
9. Turn-off,,;,, wWater . . . N/C
21
Ordinance No. 7321-04
10. Lawn meter removed. . . 70.00
11. Duplicate bill preparation for payments (mailed
in or customer walk in) . . . N/C
12. Water meter downsize or upsize (no new tap
needed):
a. From 1-inch meter or to 1-inch meter. . .
60.00
b. From 1 1/2-inch meter or to 1 1/2-inch
meter. . . 110.00
c. From 2-inch meter or to 2-inch meter. . .
160.00
d. From 3-inch meter or to 3-inch meter. . .
330.00
e. From 4-inch meter or to 4-inch meter. . .
385.00
f. From 6-inch meter or to 6-inch meter. . .
400.00
Any combination of downsizing and subsequent upsizing or
upsizing and subsequent downsizing for the same service,
per meter, will not be allowed more than once every three
years.
13. Leaks,~ wWater . . . N/C
14. Reclaimed water re-inspection (no charge for
initial or first re-inspection) . . . 35.00
(b) The charges in the preceding table will
be doubled for services between 4:30 p.m. and
8:00 a.m. on workdays and all day during
holidays and weekends.
15. Fire hydrant flow test. . . 50.00
16. Water main offset installation. . . Time and
materials
(5) Other miscellaneous charges:
(a) Water:
22
Ordinance No. 7321-04
1. Unauthorized water system use: For any use of
water, unauthorized, per occurrence. . . 100.00
2. Bypass: Ten percent of average monthly bill for
each day since last reading.
3. Broken stop locks on water meters. . . 20.00
4. Repair or replace tampered or damaged meter
or any other part of the water system: $20.00 plus
labor and materials. To relocate water meter: Time
and materials.
5. Unauthorized use of fire hydrants. . . 200.00
Section J9. This ordinance shall take effect immediately upon adoption.
PASSED ON FIRST READING
PASSED ON SECOND AND FINAL
READING AND ADOPTED
Brian J. Aungst
Mayor
Approved as to form:
Attest:
Leslie K. Dougall-Sides
Assistant City Attorney
Cynthia E. Goudeau
City Clerk
23
Ordinance No. 7321-04