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NATURAL GAS REDEFINED TERRITORY FINANCIAL AGREEMENTNATURAL GAS REDEFINED TERRITORY FINANCIAL AGREEMENT Asturia Subdivision - Pasco County This Agreement is made and entered into as of February 18, 2016, by and between Peoples Gas System, a division of Tampa Electric Company (successor by merger to Peoples Gas System, Inc.), a Florida corporation ( "PGS "), and the City of Clearwater, a Florida municipality (the "City"), d /b /a Clearwater Gas System ( "CGS "). PGS and CGS are sometimes referred to hereinafter individually as a "Party", or collectively as the "Parties ". WHEREAS, the Parties have jointly agreed to redefine the easterly Pasco County natural gas service territorial boundaries as reflected in Exhibits "A" and "C ", attached hereto and incorporated herein ( "Redefined Territory "), to allow CGS to serve all of the new Asturia Subdivision ( "Asturia "); and WHEREAS, CGS is willing to purchase the rights to serve those certain lots within Asturia (as more particularly described herein) and PGS is willing to transfer the right to serve said lots to CGS; and WHEREAS, to that end, the Parties are actively seeking the approval by the Florida Public Service Commission ( "FPSC "), which has jurisdiction over natural gas territories in Florida, of an amendment to the existing Territorial Agreement between the Parties to memorialize the Redefined Territory (the "FPSC Territory Amendment "); and WHEREAS, PGS is constructing, at its expense, a pipeline to the south of Asturia in order to serve the area and provide CGS with gas service at the natural gas interconnect along State Road 54 in Pasco County (the "Pasco Pipeline "), so that CGS may provide reliable service to the customers of Asturia, among others. NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements contained herein, the Parties hereto, intending to be legally bound, hereby agree as follows: 1. The above recitals are true and correct and are incorporated herein as if restated in their entirety. 2. Obligations of the Parties. a. CGS shall purchase the rights to provide natural gas service to three hundred eighty eight (388) lots on the eastern side of the Asturia Subdivision as reflected in Exhibit "C" in exchange for payment to PGS in the amount of One Thousand Seven Hundred and xx /100 Dollars ($1,700.00) per lot, totaling the amount of Six Hundred Fifty -Nine Thousand Six Hundred and xx /100 Dollars ($659,600.00) ( "Lot Purchase Price "). b. CGS shall pay PGS the Lot Purchase Price in two installments as described below: o The First Installment of Three Hundred Twenty -Nine Thousand Eight Hundred and xx /100 Dollars ($329,800.00) will be invoiced by PGS to CGS at least thirty (30) calendar days prior to the payment due date, and shall be paid on or before March 1, 2 2016. If the FPSC Territory Amendment is not approved by the FPSC, PGS shall refund the full amount of the First Installment to GGS within fifteen (15) days following the date on which an order ' of the FPSC denying approval of the FPSC Territory Amendment becomes final. o The Second Installment of Three Hundred Twenty -Nine Thousand Eight Hundred and xx /100 Dollars ($329,800.00) will be invoiced by PGS to CGS at least thirty (30) calendar days prior to the payment due date and shall be paid on or before November 1, 2016. Approval by the FPSC of the FPSC Territory Amendment shall be a condition precedent to CGS's payment of the Second Installment. c. CGS will permit and construct, at its expense, the interconnect along State Road 54 (the "Asturia Connection Point ") where the CGS and PGS lines meet just south of Asturia, except that PGS will install its metering equipment for the flow to the east. d. Each Party will purchase any natural gas flow through the Asturia Connection Point into its respective territory at the Asturia Connection Point in accordance with that certain Amended and Restated Natural Gas Service Agreement (the "Interconnect Agreement ") , entered into by the Parties as of even date herewith. e. PGS shall construct at its expense a pipeline (the "Pasco Pipeline ") 3 approximately 1.5 miles in length along State Road 54 from just west of the Suncoast Expressway to connect to CGS's facilities at the Asturia Connection Point just south of Asturia, to provide interconnect service to CGS as needed from time to time. PGS may also receive gas from CGS into PGS territory as needed and agreed to by the Parties. f. PGS and CGS shall cooperate and, perform all functions necessary, respectively, and execute any and all documents necessary to process and submit the FPSC Territory Amendment (and related documents) to the FPSC as expeditiously as possible. 3. Indemnification. The City shall at all times indemnify, defend and hold PGS harmless from or on account of claims, losses, injuries or damages, received or sustained by any person or persons during or on account of any negligent work or operations engaged in by City in connection with the services provided pursuant to this Agreement; or by or in consequence of any negligence, excluding the sole negligence of PGS, in connection with 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 City, its agents, servants, or contractors. City agrees to defend, indemnify and save harmless PGS against liability arising from or based upon any violation of any Federal, State, County or Municipal law, ordinance or regulation by City, its agents, servants, employees or contractors. This indemnification provision obligates the City to defend PGS from any liability claims and all suits and actions that may be brought against PGS resulting from 4 the sole negligence of City. City shall provide for PGS's defense with outside counsel reasonably acceptable to City by paying for all attorneys' fees, costs and trial expenses. City's obligation to defend PGS for the acts or omissions of City, its servants, employees or contractors shall be limited to the extent provided in § 768.28, Florida Statutes. Notwithstanding anything to the contrary contained herein, this indemnification provision shall not be construed as a waiver of any immunity from or limitation of liability to which City is entitled pursuant to §768.28, Florida Statutes. Furthermore, this provision is not intended to nor shall it be interpreted as limiting or in any way affecting any defense City may have under§ 768.28, Florida Statutes and is not intended to and shall not be interpreted to alter the extent of City's waiver of sovereign immunity under § 768.28, Florida Statutes. The Parties to this Agreement specifically agree to be fully responsible for their own acts of negligence and for the acts of negligence of their respective agents when acting within the scope of their employment, and agree to be liable for any damages resulting from said negligence. Nothing herein shall be construed as consent by either Party to be sued by third parties in any manner arising out of this Agreement. PGS shall at all times indemnify, defend and hold the City harmless from or on account of any claims, losses, injuries or damages, received or sustained by any person during or on account of any negligent work or operations engaged in by PGS in connection with the services provided pursuant to this Agreement; or by or in consequence of any negligence, excluding the sole negligence of City, in 5 connection with 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 PGS, its agents, servants, or contractors. PGS agrees to defend, indemnify and save harmless City against liability arising from or based upon any violation of Federal, State, County or Municipal law, ordinance or regulation by PGS, its agents, servants, employees or contractors. This indemnification provision obligates PGS to defend City from any and all liability claims and all suits and actions that may be brought against City resulting from the sole negligence of PGS. PGS shall provide for City's defense with outside counsel reasonably acceptable to PGS by paying for all attorneys' fees, costs and trial expenses. 4. Limitation of Liability. A. No Consequential or Indirect Damages. IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT TO THE OTHER PARTY OR ANY THIRD PARTY FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF, OR RELATING TO, AND /OR IN CONNECTION WITH ANY BREACH OF THIS AGREEMENT, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT IT WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. B. Maximum Liability. IN NO EVENT SHALL PGS'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED AN AMOUNT EQUAL TO THE LOT PURCHASE PRICE. C. If Remedy Fails Essential Purpose. THE LIMITATION OF LIABILITY PROVISIONS SET FORTH IN THIS SECTION SHALL APPLY EVEN IF THE NON - BREACHING PARTY'S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE. 6 D. Each Party acknowledges and agrees that the Parties entered into this Agreement in reliance upon the limitations of liability set forth in this Section, that the same reflect an allocation of risk between the Parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the same form an essential basis of the bargain between the Parties. Miscellaneous provisions. 5. The Parties agree to comply with all applicable Federal, State, and local laws, regulations and ordinances with respect to each Party's obligations hereunder. 6. Notices. Any notices required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been given if delivered by hand, delivered by recognized overnight courier (such as Federal express) or received by certified or registered mail, return receipt requested, in a postage prepaid envelope, and addressed as follows: If to Peoples: Peoples Gas System Attn: Vice - President, Operations 702 North Franklin Street Tampa, FL 33602 (813) 228 -4298 with copy to: Peoples Gas System Attn: General Counsel 702 North Franklin Street Tampa, FL 33602 (813) 228 -1328 If to Clearwater Gas: Clearwater Gas System Attn: Gas System Managing Director 400 North Myrtle Avenue Clearwater, F L 3 3 7 5 5 (727) 562 -4901 7 with copy to: Office of City Attorney Attn: City Attorney P.O. Box 4748 Clearwater, FL 33758 (727) 562 -4010 Notices personally delivered or sent by overnight courier shall be deemed given on the date of delivery and notices mailed in accordance with the foregoing shall be deemed given on the date of delivery, provided the return receipt is received. 7. Construction. This Agreement shall be governed by, and construed and enforced in accordance with the laws of the State of Florida. Each Party to this Agreement has participated fully in the negotiation and preparation hereof and, accordingly; this Agreement shall not be more strictly construed against either of the Parties hereto. In construing this Agreement, the singular shall be held to include the plural, the plural shall be held to include the singular and the use of any gender shall be held to include every other gender. 8. Captions. The captions of the various paragraphs of this Agreement are inserted for the purpose of convenient reference only and shall not affect the construction or interpretation to be given any of the provisions hereof or be deemed in any manner to define, limit, modify or prescribe the scope or intent of this Agreement or any provision hereof. 9. Severability. If any term or provision of this Agreement shall be determined by appropriate judicial authority to be illegal or otherwise invalid, such provision shall be given its nearest legal meaning or be construed as deleted as such authority determines, and the remainder of this Agreement shall be construed 8 with full force and effect. 10. Counterparts. This Agreement may be executed in any number of counterparts, each of which, when executed and delivered, shall be an original, but all counterparts shall together constitute one and the same instrument. 11. Assignability. Any entity which shall merge or consolidate with either Party, or acquire by purchase substantially all of the assets of either Party, shall be subject to the obligations of its predecessor under this Agreement, and either Party may assign this Agreement to such successor -in- interest or Affiliate provided such assignee assumes in writing the obligations of its predecessor hereunder. Except as set forth in this paragraph, neither Party shall assign this Agreement, or its rights and obligations hereunder, without the prior written consent of the other Party, and no assignment or transfer of this Agreement shall relieve either Party of any obligations to the other Party incurred prior to such assignment or transfer. For purposes of this Agreement, the term "Affiliate" shall mean any entity that controls, is controlled by, or is under common control with, PGS. 12. Entire Agreement. This Agreement constitutes the entire understanding and agreement between the Parties and may not be changed, altered or modified except by and instrument in writing signed by the Parties. This Agreement shall be binding upon the Parties hereto and their respective successors and assigns. [signature page follows] 9 IN WITNESS WHEREOF, this agreement is executed as of this 18th day of February, 2016. Gceoyle t c \e65 George N. Cretekos Mayor PEOPLES GAS SYSTEM, a division of Tampa Electric Company By: Gordon L. Gillette President CLEARWATER GAS SYSTEM/ CITY OF CLEARWATER, FLORIDA By: By: Approved as to form: Attest: Laura Mahony Assistant City Attorney 10 Charles S. Warrin: '.n, Jr. Managing Director Clearwater Gas System WkQQ1,444.LA . Utt44Ac. William B. Horne II City Manager Rosemarie Call City Clerk THIRD REVISED EXHIBIT A Clearwater Gas System /Peoples Gas System Pasco County Territorial Map ,AR PAYAN IL n' A 302416 25.16 272416 262419 252416 392419 262419 27 19 352416 352417 N 042516 s, 932616 N SR 52°-' ONF 092516 .2516 PAT ST m1 012516 062517 '14�KE'1� 52.50 Pples has ' ystem 16 Pasco County Se ice A ea AA95 OOIOOt TA L-0 471 IS 943516 8632518 03 SR 0.17 r 52 06251E 33.19 04 to 112516 122516 07.17 98.17 51001 092519 10.19 52 16 x J 16 I 152816 ONE NO i NONE 212576 222516 CHIP LN 182517 pP 5E 2 16 242516 m (GLEN OAK AU; IF 162515 V7fWDa H,i,VANPN`' 202517 21.17 2516 23 322516 052616 04.6 ON NE- 20820 16 282516 I 27.16 wvD 2516 352516 DECUBEL IS RD DUSTY LA O3xt6 022618 1022616 PlATM�t.,b I I 97.16 05261590 9.17 ROG VBE L1 12517 322617 NO E p6817C -a�vat 162619 t5 -19 Serenov Bou `.,CEYDa (See Exhibit B) 233517 232517 262613 19 212519 92.19 282619 n 10 9.16 DR TIKI DR 252615 302616 172816 re2616 297616 212616 153516 122616 14x18 13x76 ONE 222616 .2616 SR 54 542616 232617 282616 272616 262616 J 252616 2926„ R54 �s45a 4SR54''57050 S 2 s. NE 32.16 332616 Pa R Coun 362616 332617 382617 0.,15 (POE) LOTS BLVD GSgale Corridor LAkFDR i 3 .322676. 332618 342618 2626. 4'KKI7N EAGLE Pinellas County Hillsborough County 042619 03 093619 10 19 Peoples G s System,— l -E- EPTEpasco County ervice Area 1995 Origin I Territory 202513 212610 229419 HAORF OR 322419 -or 'Q2'D 572619 I 292610 �1. SR Sd 26x16 .x16 3 LEONARD RD II 352610 See EXHIBIT C Asturia Subdivision 9 32x19 332619 34.19 COUNTY LINE RD 12 -28 -2015 EXHIBIT C Behnke Ranch Property Asturia Subdivision in Pasco County Clearwater Gas System & TECO Peoples Gas Jointly Agreed Split of Lots Between Sections 25 & 26, Township 26 South and Range 17 East SFH 65 SFH55 SFH55 (TND) (Conventional) PGS 58 140 23 SFH45 SFH36 TH # of Units Exchanged (Given) 388 25 15 127 Number of Units Acquired by CGS 388 Lots per Phase 1D 7 2A 41 2B 82 3 87 4 171 Total 388 Section, Township & Range Line 10 -22 -2015 Section, Township & Range ARCEL\ HASE 1A PARCEL\ PHASE 10 CommerciaVOffice /Multife m ily 11.7 ac Phasing and Product Summary Sin . le Family Residential Uses 55 foot wide - TND Front Load 45 foot wide - TND Alley Load 1A 50 36 foot wide - TND Alley Load 55 foot wide - Conventional 65 foot wide - Conventional Townhomes Totals 18 Phase Identification 16 1C 1D 2A 2B 3 0 0 6 0 0 4 Totals 23 0 0 18 0 0 14 0 0 0 32 38 0 83 51 6 10 32 0 0 31 0 72 66 52 254 0 0 0 0 0 0 36 27 106 91 127 92 42 70 43 83 82 94 171 677 Parcel\Phase Identification CommsrciaUMultifamily Uses 5 6 7 CommJOf loos or Multifamily 190,000 sf or 190,000 sf or 440 units 440 units 8 190,000 sf or 440 units Light IndustrisVO(8oe• IMMO Figures will not exceed the maximum allowable by the MPUD. Hines FLORIDA DESIGN CONSULTANTS, INC. — THINK R. ACHIEVE IT -- RAYSOR Transportation Consulting To% EngMning Dwvbo+imr Support PRoSSERC 100,000 sf Existing CGS /PGS Territorial Boundary (see exhibit A) Proposed Interconnect Proposed PGS main CGS & PGS Agreed Line Existing CGS /PGS Territorial Boundary (see exhibit A) CGS & PGS Agreed Line Phasing and Product Summary Map 300 0 '50 309 03 -06-14 This pion is conceptual and all acreages, unit quantities, unit types, unit sized, amenities, trails, street, pork and building types and locations ore approximate and subject to change. Location and alignment of roadways and access points shown are approximate and subject to change based on final engineering, design and permitting requirements. Individuol roadway sections may be altered with oppropriate justification within the allowable porameters of the Pasco County Land Development Code during future Site Construction Plan applications. All ideas, designs. graphics renaerings, dimensions, plans and other depictions herein are conceptual only and are subject to change and therefore are not a guarantee of how the items will appear upon completion.