EXHIBIT 10.5
TERMINAL SERVICES AGREEMENT
THIS TERMINAL SERVICES AGREEMENT is made and entered into as of the of
November 1, 2002 (the "Effective Date"), by and between XXXXXX OPERATING
PARTNERSHIP L.P. (hereinafter referred to as "Owner"), and XXXXXX GAS SALES LLC
(hereinafter referred to as "Customer").
WITNESSETH:
WHEREAS, the Owner operates a marine terminal facility located 0000
Xxxxxxx Xxxxx Xxxx xx Xxxxx, Xxxxxxx (the "Terminal Facility") under the terms
of that certain Agreement of Lease, dated December 16, 1976, between Owner, as
assignee, and the Tampa Port Authority (the "Port Authority Lease"); and
WHEREAS, the Customer is in the petroleum products ("Products")
distribution business; and
WHEREAS, it is the desire of the Owner and the Customer that the
Customer's Product be throughput at the Terminal Facility and that the Owner
provide unloading, handling, storage, out-loading and other terminal services
with respect to the Customer's Product at the Terminal Facility, all on the
terms and conditions hereinafter provided.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein, the Owner and the Customer agree that the Owner
shall provide the hereinafter described terminal services with respect to the
Customer's Product at the Terminal Facility, on the terms and conditions
hereinafter provided:
1. TERM OF AGREEMENT. The term of this Agreement shall begin on the Effective
Date and shall end on the third anniversary of the Effective Date. Thereafter,
the term shall automatically renew from year to year, unless either party gives
written notice at least thirty (30) days prior to the expiration of the
applicable term.
2. OWNER'S DUTIES. In consideration of the compensation provided in Section 3
hereof, the Owner shall provide the following services ("Customer Services') to
the Customer at the Terminal Facility:
(a) UNLOADING. HANDLING AND STORAGE SERVICES. The Customer shall
deliver Product (consisting of # 2 fuel oil) to the Terminal
Facility by marine vessel. All such deliveries shall fully
comply with the terms and conditions of the Port Authority
Lease. The Owner shall unload the Customer's Product from such
marine vessels in accordance with prevailing industry
standards relating to the handling of petroleum products. The
Owner shall transfer the Product to, store the Product in, the
following storage tank at the Terminal Facility:
TANK NUMBER CAPACITY
----------- --------
Tank #5 80,000 barrels
Tank #5 shall be reserved and dedicated at all times for the
exclusive use of Customer.
(b) OUT-LOADING SERVICES. The Customer's Product may be removed
from the Terminal Facility by marine vessel or truck. The
Owner shall provide all out-loading services necessary to
permit the Customer to transfer Product from the storage tanks
at the Terminal Facility to the Customer's designated trucks
or marine vessels for removal from the Terminal Facility.
(c) INVENTORY SERVICES. The Owner shall provide to the Customer
daily inventory reports of Customer's Product, containing
reports as to receipts and withdrawals of Customer Product,
and the balance as of the close of business of the immediately
preceding day.
3. OWNER'S COMPENSATION. For the terminal services performed by it hereunder,
the Owner shall receive the following compensation from the Customer:
(a) TANK LEASE FEE. The Customer shall pay the Owner the following
compensation for services (the "Tank Lease Fee"). This fee
shall be fixed during the first year of this Agreement and
thereafter adjusted according to Section 3(c) below:
TANK LEASE FEE
---- ---------
Tank #5 $20,000.00 per month
(b) WHARFAGE: DOCKAGE AND DEMURRAGE. The Tank Lease Fee does not
include wharfage fees to the Tampa Port Authority. The
Customer shall pay wharfage fees along with any other fees due
to or required by the Tampa Port Authority, including future
increases in the fees. Dock scheduling and usage shall also be
subject to the regulations of the Tampa Port Authority.
(c) TANK FEE ADJUSTMENTS. The Tank Lease Fee shall be adjusted
annually as follows. The Tank Lease Fee shall be adjusted
(both upward and downward as hereinafter provided) by a factor
equal to the increase or
decrease, as the case may be, in the Consumer Price Index. The
adjustment shall be calculated annually in October of each
year, commencing in October 2003 based on Consumer Price Index
statistics for the two preceding Septembers. The adjustment
shall be calculated as follows: The Tank Lease Fee in effect
shall be multiplied by a factor equal to the amount of the
increase or decrease, as the case may be, in the Consumer
Price Index for the immediately preceding month of September,
over the Consumer Price Index for September of the preceding
year. For purposes hereof, the term "Consumer Price Index"
shall mean the "Consumer Price Index for Urban Wage Earners
and Clerical Workers (1967=100)" specified for "All Items.
United States" compiled by the Bureau of Labor Statistics of
the United States Department of Labor (the "Index"). In event
the Index shall be converted to a different standard reference
base or otherwise revised, the determination of the percentage
change shall be made with the use of such conversion factor,
formula or table for converting the Index as may be published
by the Bureau of Labor Statistics or, if said Bureau shall not
publish the same, then as shall be reasonably determined by
the parties.
4. TITLE TO PRODUCT. Title to all of the Customer's Product received, stored and
handled by the Owner at the Terminal Facility shall remain at all times in the
name of the Customer. The Customer agrees not to deliver for storage at the
Terminal Facility any Product which may not be lawfully stored on the premises
of the Terminal Facility or any Product injurious to the premises or facilities,
or which would render the facilities unfit, after cleaning, for the proper
storage of similar products, or Products.
5. ASSIGNMENT. Neither party shall assign this Agreement without the express
written consent of the other party.
6. FACILITY. TANK AND EQUIPMENT CONDITION. The Owner shall, at its sole cost and
expense, provide and maintain all handling and storage equipment and facilities
necessary to the performance of its services hereunder, including without
limitation the storage tank, in compliance with prevailing industry standards
and all applicable Laws (as such term is defined in Section 7 below) as they may
exist from time to time.
7. CUSTOMERS COMPLIANCE WITH LAWS. In the conduct of its business on the
premises of the Terminal Facility, the Customer shall comply in all material
respects with all federal, state and local laws, ordinances, decrees, orders,
regulations, permits or other requirements having the force of law (hereinafter,
the "Laws").
8. ENTIRE AGREEMENT AND AMENDMENT. This
Terminal Services Agreement shall
constitute the entire agreement concerning the subject hereof between the
parties superseding all previous agreements, negotiations and representations
made prior or contemporaneous to the date hereof. This Agreement shall be
modified or amended
only by written agreement executed by both parties hereto.
9. CONTROLLING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of
Texas.
EXECUTED as of the date first set forth above.
XXXXXX GAS SALES LLC - FUEL OIL SALES
BY: XXXXXX RESOURCE MANAGEMENT CORPORATION,
ITS SOLE MEMBER
BY: /s/ XXXXX X. XXXXXX, III
NAME: XXXXX X. XXXXXX, III
TITLE: PRESIDENT
XXXXXX OPERATING PARTNERSHIP L.P.
BY: XXXXXX OPERATING GP LLC, ITS GENERAL PARTNER
BY: XXXXXX RESOURCE LLC, ITS SOLE MEMBER
BY: XXXXXX RESOURCE MANAGEMENT CORPORATION,
ITS SOLE MEMBER
BY: /s/ XXXXX X. XXXXXX, III
NAME: XXXXX X. XXXXXX, III
TITLE: PRESIDENT
