CITY OF WAUCHULA/HARDEE COUNTY INTERLOCAL AGREEMENT FOR RIGHT OF WAY UTILIZATION

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1 CITY OF WAUCHULA/HARDEE COUNTY INTERLOCAL AGREEMENT FOR RIGHT OF WAY UTILIZATION THIS INTERLOCAL AGREEMENT is made and entered into by and among Hardee County, Florida, a political subdivision of the State of Florida (the County ), and the City of Wauchula, Florida, a municipal corporation created and existing under the laws of the State of Florida (the City ). RECITALS WHEREAS, the County has authority pursuant to its home-rule powers and Section , Florida Statutes, to enter into agreements; and WHEREAS, the City has authority pursuant to Section , Florida Statutes, to enter into agreements; and WHEREAS, the County and the City have authority pursuant to Section , Florida Statutes, to enter into Interlocal Agreements; and WHEREAS, the County and the City have jurisdiction pursuant to Section (1), Florida Statutes, over public roads within their respective road systems; and, WHEREAS, the County, intends on designing, developing, installing, constructing, or permitting others to construct and operate a natural gas fueling station and a connection point for delivery of natural gas for resale via properly franchised retail gas providers within the City limits of the City; and, WHEREAS, the aforesaid rights-of-way to be used by the County are valuable public properties acquired and maintained by the City at the expense to the City s taxpayers, and the right to use said rights-of-way is a valuable property right without which the County would be required to invest substantial capital and property acquisition costs; and, WHEREAS, the City desires to insure that the aforesaid rights-of-way used by the County are promptly restored to a safe and secure condition to protect the health, safety and welfare of the citizens and residents of the City. NOW, THEREFORE, in consideration of the mutual covenants and conditions contained herein, the City and County agree as follows: \40126\1 - # v1 1

2 1. RECITALS. The foregoing recitals are true and correct and are hereby incorporated herein by reference. 2. COUNTY S MAINTENANCE RESPONSIBILITIES FOR PIPES. Subject to Paragraph 4 herein, the County or its successors shall be responsible for maintenance of, and if necessary, replacement of, the Pipes in perpetuity (the maintenance activities ). County or its successors agrees that said maintenance activities shall be consistent with reasonable engineering standards and both the City s and the County s standards for maintenance of gas pipes within their jurisdictions. Except in emergency situations, the County or its successors shall provide reasonable notice to the City prior to the initiation of any maintenance activities under the terms of this Interlocal Agreement. In emergency situations, the County or its successors shall provide the City notice of its maintenance activities as soon as practicable. County or its successors shall promptly repair any damage caused to City property and facilities during said maintenance activities and shall restore the City property and facilities to their condition prior to said maintenance activities. 3. RIGHT-OF-WAY UTILIZATION LICENSE. City confirms that this Agreement shall constitute a right-of-way utilization license to the County and its successors to allow the construction, operation, and maintenance activities under the terms of this Interlocal Agreement. County or its successors shall be subject to all current or later adopted City ordinances and regulations that now or later may apply to gas pipelines. 4. CITY ACCEPTANCE OF THE PIPES. County or its successors shall notify the City in writing upon completion of construction of the gas pipeline, at which time, the City will inspect the gas pipeline. If City determines that the gas pipeline has been constructed consistent with the permitted construction plans and all applicable government regulations, City shall approve the gas pipeline for operation and maintenance under the terms of this Agreement. 5. CONDITIONS ON STREET OCCUPANCY Use. All pipes, mains, and other natural, artificial or mixed gas equipment and apparatus laid or placed by the County shall be so located in the streets, alleys and other public way in the City as not to obstruct or interfere with any water pipes, sewers, drains or other structures already installed or hereafter to be installed. \40126\1 - # v1 2

3 The County shall, when practicable, avoid interfering with the use of any street, alley or other highway where the paving or surface of the streets would be disturbed Restoration. In case of any disturbance of pavement, sidewalk, driveway or other surfacing, the County shall, at its own cost and expense and in a manner approved by the City Inspector, replace and restore all paving, sidewalk, driveway or surface of any street or alley disturbed, in as good condition as before said work was commenced Relocation. (a) If at any time during the period of this license the City shall lawfully elect to vacate, alter or change the grade of, any street, alley or other public way, the County, upon reasonable notice by the City, shall remove, relay, and relocate its mains or service pipes, manholes and other gas fixtures at the County s expense. (b) If any time during the period of this license a request for relocation of mains or service pipes, manholes and other gas fixtures shall be made by a third party, the City Planning Board shall have the responsibility for making advisory recommendations to the City Commission regarding such request for relocation. The third party petitioner shall assume and advance all costs of relocating main and service utility lines, including legal costs resulting from condemnation of property necessary to relocate. 6. Term; Termination This Interlocal Agreement shall remain in effect unless and until the County and the City terminate this Interlocal Agreement in accordance with subsection This Interlocal Agreement may be terminated only by express written instrument approved by the Board of County Commissioners of the County and the City Commission of the City, and executed by the authorized officers of each. 7. Amendments. This Interlocal Agreement may be amended only by express written instrument approved by the Board of County Commissioners of the County and the City Commission of the City, and executed by the authorized officers of each. 8. Miscellaneous Validity. The County and the City each represents, warrants, and covenants to and with the other its respective authority and power under Florida law to \40126\1 - # v1 3

4 enter into this Agreement, acknowledges the validity and enforceability of this Interlocal Agreement, and waives any future right of defense based on claim of illegality, invalidity or unenforceability of any nature. The County and the City each hereby represents, warrants and covenants to and with the other that this Interlocal Agreement has been validly approved by its respective governing body at a duly held public meeting, and that this Interlocal Agreement constitutes a legal, valid and binding contract enforceable against the respective party in accordance with the terms hereof (assuming the due authorization, execution and delivery hereof by the other parties hereto) Ambiguities. Both parties have been allowed equal input regarding the terms and wording of this Interlocal Agreement and have had the benefit of consultation with their respective legal counsel prior to its execution, such that all language herein shall be construed equally against the parties, and no language shall be construed strictly against its drafter Headings. The headings or captions of sections or subsections used in this Interlocal Agreement are for the convenience of the parties for reference only and are not intended to define or limit their contents, nor are they to affect the construction or interpretation of this Interlocal Agreement Severability. The provisions of this Agreement are declared by the parties to be severable only to the extent the remaining provisions can effectuate the purpose and intent of the parties Governing Law; Venue; Attorneys Fees and Costs. (a) This Interlocal Agreement shall be governed by and construed in accordance with laws of the State of Florida. (b) Venue for any action arising out of or relating to this Agreement shall be in the Circuit Court for the Tenth Judicial Circuit in Hardee County, Florida. (c) In the event a party deems it necessary to take legal action to enforce any provisions of this Agreement, each party shall bear its own attorneys fees and costs at both the trial and appellate levels Entire Agreement. This Interlocal Agreement, along with its exhibits, constitutes the entire agreement between the parties regarding the subject matter hereof. Any prior oral or written agreements or understandings of any kind between the parties relating to the subject matter hereof are null and void and of no \40126\1 - # v1 4

5 further effect Counterparts. This Interlocal Agreement and any amendments thereto may be executed in one or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument Notices. Any notice required to be given or otherwise given by one party to the other party shall be in writing. Notice shall be deemed delivered when given by hand delivery; notice shall be deemed delivered five (5) days after being deposited in the United States Mail, postage prepaid, certified or registered; notice shall be deemed delivered the next business day after being deposited with a recognized overnight mail or courier delivery service; notice shall be deemed delivered the next business day when transmitted by facsimile or telecopy transmission, with receipt acknowledged upon transmission. Notices shall be addressed as follows: If to County: Hardee County Public Works Department Road and Bridge Department 205 Hanchey Road Facsimile: (863) With copy to: If to City: With copy to: Hardee County Manager 412 W. Orange Street, Room 103 Facsimile: (863) Director, Public Works Department Wauchula City Hall 126 S. 7 th Avenue Facsimile: (863) City Manager Wauchula City Hall 126 S. 7 th Avenue Facsimile: (863) In all cases, notices shall be deemed delivered to a party only upon delivery of copies to the persons indicated above in the same manner as for the party being notified. Either party may change its designated official or address for receipt of notice by giving notice of such change to the other party in the manner provided in this section. 9. Indemnification. As limited by Florida law, County and its successors shall indemnify and hold the City harmless from and against any claims, damages, or \40126\1 - # v1 5

6 losses related to the construction, operation and maintenance activities of the gas pipeline. As limited by Florida law, County shall indemnify and hold the City harmless from and against any damage, claims or losses with respect to the Pipes caused by the County s activities within the right-of-way. 10. Effective Date. This Interlocal Agreement shall become effective on the date of execution by the County or the date of execution by the City, whichever date is later. [SIGNATURES ON FOLLOWING PAGES] \40126\1 - # v1 6

7 IN WITNESS WHEREOF, the parties hereto have executed this Interlocal Agreement as of the day and year indicated below. ATTEST: Clerk of the Board of County Commissioners By: Victoria L. Rogers, Clerk to the Board Date: HARDEE COUNTY, FLORIDA By: Board of County Commissioners By: Rick Knight, Chairman Date: APPROVED AS TO FORM AND LEGALITY for the use and reliance of Hardee County, Florida, only., 2014 Kenneth B. Evers, Attorney ATTEST: Holly Smith, City Clerk CITY OF WAUCHULA By:. Richard Nadaskay, Mayor / Pro Tem Date: APPROVED AS TO FORM AND LEGALITY for the use and reliance of the City of Wauchula, Florida, only., 2014 Thomas A. Cloud, City Attorney \40126\1 - # v1 7

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