MASTER MARKETING AGREEMENT BETWEEN CLEARWATER GAS SYSTEM AND TECO PARTNERS
MASTER MARKETING AGREEMENT
Between Clearwater Gas System & rECO Partners
This MASTER MARKETING AGREEMENT (Agreement) is made and entered into this 2nd
day of December, 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 permit CGS 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
hereunderare 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. Appointment. 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
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in writing. For the purposes of this Agreement, the term "Service" or "Services" shall mean the sale
of natural gas service to developers and builders on behalf of CGS.
3. 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 writing.
4. Responsibilities of CGS
4.1 Marketina Materials. 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 CGS. At this time, the two developments to be
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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").
(iii) 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 sales.
6. 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
Partners.
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
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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 ~ 768.28, 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.
11. Dispute Resolution. 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 arises. 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
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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, Inc,
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 of this 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 thereof, 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.
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IN WITNESS WHEREOF, the parties have caused their authorized representatives to
execute this Agreement on the date set forth above.
By:
Name:
Title:
~ -..J7U ~ D--v..(..tlj#I-,,<GNT
countersign~
Brian ~ "
Mayor
By:
CITY OF CLEARWATER, FLORIDA
1t1~.~-n
William B. Horne, II
City Manager
Approved as to form:
Laura~i
Assisfant City Attorney
Attest:
~ Z )1.,. ,~a~
CyntDi~ E. Goudeau ..
City g~rk - .. ,-'
/-'-.
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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)
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