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Contract #: CTK-1 BAYONNE
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IMTT-BAYONNE
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AGREEMENT OF GENERAL CONDITIONS
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THIS AGREEMENT and the attached schedule(s) which are made part hereof, by
and between IMTT-BAYONNE, A DELAWARE PARTNERSHIP, (hereinafter called "Bailee")
and COGEN TECHNOLOGIES NJ VENTURE, a joint venture, organized and created under
the laws of the State of NEW JERSEY (hereinafter called "Xxxxxx"). The parties
signing the within Agreement for and in behalf of Bailee and Xxxxxx warrant that
each of them is fully authorized by their respective parties to execute and
deliver the within Agreement in accordance with the terms and conditions set
forth herein and in said attached schedule(s).
WITNESSETH THAT:
For and in consideration of the mutual covenants and agreements undertaken
herein, Bailee and Xxxxxx agree as follows, to-wit:
1. Bailee hereby agrees during the term of this Agreement to store in its
public warehouse tank storage facilities in the City of Bayonne, New Jersey
and/or Jersey City all as more specifically set forth in the attached schedules.
Bailee shall retain exclusive control and administration of all tank(s),
including all throughput in or out thereof, and all premises, lines and
appurtenances appertaining thereto. TITLE TO PRODUCT WILL REMAIN WITH XXXXXX AT
ALL TIMES. Unless otherwise specified Bailee shall provide AND MAINTAIN storage
tanks and lines constructed of plain, unlined steel having standard
construction, pumps, valves and accessories commonly used for the storage and
handling of bulk liquids. Bailee reserves the right to substitute tanks OF
COMPARABLE QUALITY/CAPACITY during the term of this agreement AT NO ADDITIONAL
COST TO XXXXXX.
2. Xxxxxx shall deliver to Bailee for storage materials as specified in
said attached schedule(s), provided however, that Xxxxxx shall not tender to
Bailee any materials, corrosive or otherwise, which would in any way damage its
tank(s); nor shall Bailee be required to store any materials therein which
would render said tank(s) unfit, after cleaning, for the proper storage of
products. Xxxxxx or its representative is granted the right at its expense to
inspect the tank(s) assigned to Xxxxxx'x products from time to time prior to
commencement of unloading of Xxxxxx'x materials into said tank(s). If, as a
result of such inspection by Xxxxxx, any tank should fail to satisfy the
requirements of Xxxxxx and the defect or deficiency is not susceptible of
reasonable remedy in the opinion of Bailee, then and in such event, each party
is granted the option forthwith to terminate those parts of this Agreement which
cannot be performed, provided that such termination shall be without liability
whatever on the part of Bailee to Xxxxxx for any loss, damage or expense,
consequential or remote, sustained by Xxxxxx as a result of the failure of such
tank(s) to meet
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Xxxxxx'x requirements, and the within Agreement shall remain in full force and
effect as to the remaining storage. Once Xxxxxx has authorized the unloading of
its materials into the lines and tank(s) of Bailee, it is stipulated that such
authorization constitutes an acceptance (with or without inspection, as the case
may be) by Xxxxxx of Bailee tank(s) as being fit and suitable for the storage of
Xxxxxx'x materials.
3. Xxxxxx is to furnish Bailee with a full written description of
materials to be handled, including all known physical and chemical properties,
prior to storage thereof. Materials are to be of such consistency and refinement
as to be free-flowing and pumpable at all times subject to proper application of
heat when required. In the event such materials require the application of heat
or steam by Bailee to maintain same in a liquid free-flowing or pumpable state,
Bailee will provide the required heat, if tanks are appropriately equipped, at
Xxxxxx'x cost as set forth in the attached schedule. Bailee reserves the right
to refuse to accept or store or continue to store the materials or any part
thereof if in its opinion the condition of the materials gives reasonable ground
for apprehension of loss or damage to other goods or to storage facilities or to
any person or persons whatsoever. In such event, Bailee shall be entitled to
give notice to Xxxxxx to remove such materials within a reasonable time after
receiving such notice and if Xxxxxx should fail to remove such materials, Bailee
shall be entitled to dispose of said materials in the same manner as provided in
paragraph 7 hereinbelow. Xxxxxx warrants that any materials delivered for
storage under this Agreement will not be corrosive or otherwise injurious to
Bailee's tank(s), lines, appurtenances or personnel. BAILEE RECOGNIZES THAT
SPECIFICATION GRADES OF KEROSENE ARE NOT CORROSIVE. BAILEE TRAINS/EQUIPS ITS
EMPLOYEES TO SAFELY HANDLE ALL GRADES OF KEROSENE. In the event Xxxxxx'x
materials should require special handling to maintain quality and minimize
hazards, Xxxxxx shall so advise Bailee in writing thereof in advance of
execution of this Agreement. Xxxxxx shall be strictly liable for any loss,
damage, or expense, which results from breach of said warranty or failure to
advise of required special handling.
4. Bailee agrees to receive, deliver and/or transfer into and out of its
terminal such materials as may be stored therein under the terms hereof, to
provide such other services as may be specified in said schedule(s), and to
provide the facilities needed therefor. Xxxxxx agrees to pay Bailee monthly in
advance, the agreed monthly charges specified in the attached schedule(s).
Xxxxxx also agrees to pay Bailee any other charges accruing hereunder which may
be mutually agreed upon, from time to time, upon presentation of invoice
therefor. All payments hereunder shall be made to Bailee at its principal
office, Foot of X00xx Xxxxxx, Xxxxxxx, Xxx Xxxxxx 00000 or such other address as
may be designated by Bailee. Notwithstanding Bailee's charges for receiving
materials (throughput charge), the cost of all inpumping of materials from ship
or barge into the lines and tank(s) of Bailee shall be arranged by and at the
cost of Xxxxxx.
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5. The term "barrel" whenever used in this Agreement or attached
schedule(s) shall mean 42 U.S. gallons at 60 degree F; the term "materials"
whenever used in this Agreement or attached schedule(s) shall mean materials
which are stored for Xxxxxx but which may be owned by Xxxxxx or by others.
6. This Agreement shall remain in effect for the period of time specified
in the attached schedule(s). If additional tank(s) are required by Xxxxxx
from time to time hereafter, such requirement may be evidenced by a Letter
Agreement, or otherwise, and become an addition to the attached schedule(s), and
the terms of this Agreement shall also apply to it.
7. Xxxxxx agrees, promptly upon the expiration or termination of this
Agreement to remove all materials contained in Bailee's terminal and leave the
tanks used for Xxxxxx'x materials in the same condition as they were at the
beginning of this contract, ordinary wear and tear AND DAMAGE NOT CAUSED BY
XXXXXX'X PRODUCT excepted. In the event Xxxxxx'x materials are not completely
out of the tank(s) at the end of the term of this Agreement, Xxxxxx agrees to
pay Bailee an additional charge of one month's storage or, at the option of
Bailee, damages incurred by reason of Xxxxxx'x refusal or inability to remove
its materials from the tank(s). In the event of Xxxxxx'x refusal or inability to
so remove its materials Bailee is granted the additional right, over and above
its claim for damages, to remove and dispose of all materials remaining in said
tank(s) and to satisfy Xxxxxx'x obligations to Bailee out of the proceeds of
such disposition, if any, Bailee to hold any balance for the account of Xxxxxx
or other party in interest.
8. Bailee shall not be liable for evaporation, shrinkage, line-loss,
clingage, discoloration, contamination, damage to or destruction of any
materials of Xxxxxx, or for any delay or non-performance of services or failure
to provide facilities due hereunder when any of the foregoing is caused in whole
or in part by force majeure, unnatural act or the public enemy, or by labor
dispute or trouble, strike, riot, vandalism, sabotage, expropriation or
appropriation, flood, fire, war (whether declared or undeclared), accident when
not caused by Bailee, storm, explosion, breakdown of machinery, fuel shortage,
power shortage, railroad embargo or congestion, government regulation or action,
embargo or intervention, failure or delay of manufacturers or persons from whom
Bailee is obtaining machinery, equipment, materials, or supplies to deliver the
same, or other cause beyond its control, whether such other cause be of the
classes herein specifically provided for or not, and whether the cause is or is
not existing on the date of this Agreement. In any event, regardless of the
occurrence or nonoccurrence of any of the aforementioned events, Bailee shall
not be liable for loss of or damage to Xxxxxx'x materials except when caused by
Bailee's failure to use reasonable care in the safekeeping and handling of
Xxxxxx'x materials.
9. All movements and receipts or deliveries of Xxxxxx'x materials
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hereunder, whether by tank, tank car, tank truck, barge, tanker or vessel, shall
be on a nonpreferential, first come/first served basis, and Bailee shall not be
responsible for any loss, damage, demurrage, or expense due to delay in
loading or unloading Xxxxxx'x materials. Xxxxxx shall give Bailee at least seven
(7) days advance notice of the arrival of each tanker and at least twelve (12)
hours advance notice of the arrival of each barge making deliveries of Products
into the Storage Facilities, specifying the quantity and nature of Products into
the storage hereunder. Such tankers, barges or customer vessels will be
accommodated with every vessel using the Storage Facilities in the order of
arrival. Tankers, barges or customer vessels loading or discharging for Xxxxxx'x
account will be subject to Bailee's applicable dock rules as they may be in
effect from time to time and such tankers, barges, and customer vessels will
proceed to and from Bailee's dock facilities with promptness and dispatch.
BAILEE'S DOCK RULES SHALL NOT BE AMENDED IN A MANNER WHICH MATERIALLY AFFECTS
THE PERFORMANCE of THIS AGREEMENT. The tankers, barges and customer vessels will
load or unload, as the case may be, on a continuous basis.
10. Insurance on Xxxxxx'x materials shall be obtained and carried by
Xxxxxx at its expense. Xxxxxx agrees to reimburse and indemnify Bailee for any
and all REASONABLE expenses incurred by Bailee for the preservation or
protection of Xxxxxx'x materials. In the event of a casualty Xxxxxx will obtain
a waiver of subrogation against Bailee for the covered portion of any loss
sustained by reason of storage of materials for Xxxxxx hereunder. BAILEE WILL
PROVIDE XXXXXX WITH AN INSURANCE CERTIFICATE ON A YEARLY BASIS EVIDENCING
VARIOUS COVERAGES WHICH BAILEE CARRIES FOR ITS OWN BENEFIT.
11. Should Xxxxxx fail to pay any monies due or to become due hereunder or
should Xxxxxx fail to comply with any of its other obligations under this
Agreement within THIRTY (30) days from the mailing by Bailee of notice of such
default, Bailee shall have the right, at its option (a) to terminate and cancel
the within Agreement in which event there shall be due to Bailee, as liquidated
damages, a sum equal to the amount of the storage charges hereunder for one (1)
month; (b) to accelerate all monies due for the unexpired remaining term of the
within Agreement and to declare same immediately due and payable; or (c) to xxx
for the storage charges in intervals or as the same accrue. IN THE EVENT THAT
XXXXXX DEFAULTS AND THIS AGREEMENT IS TERMINATED, BAILEE WILL PROMPTLY MAKE BEST
EFFORTS TO LEASE STORAGE SPECIFIED BY THIS AGREEMENT TO OTHER PARTIES APPLYING
STORAGE REVENUE RECEIVED AGAINST XXXXXX'X LIABILITY AND IF POSSIBLE TERMINATE
XXXXXX'X RESPONSIBILITY/LIABILITY TO BAILEE, IN WHOLE OR IN PART. The foregoing
provisions are without prejudice to any remedy which might otherwise be
available under the laws of New Jersey for non-payment of monies due, or to
become due hereunder, or for breach of any of the obligations of the within
Agreement, or to establish any lien or privilege.
If Xxxxxx has commenced by reasonable means to cure any default not
curable in THIRTY (30) days, such additional time as is reasonably necessary to
cure such default shall be granted Xxxxxx before Xxxxxx will be
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adjudged in default hereunder.
Bailee's failure to strictly and promptly enforce these conditions
shall not operate as a waiver of Bailee's rights hereunder, Bailee hereby
reserves the right to enforce prompt payment of storage charges or other
charges, or to cancel the within Agreement regardless of any indulgences, or
extensions previously granted to Xxxxxx.
In the event Xxxxxx defaults in the performance of any of the terms,
covenants, agreements or conditions provided herein and Bailee refers to its
attorney the enforcement of this Agreement, or any part hereof, for the
collection of any monies due or to become due hereunder, and said attorney files
suit thereon, then Xxxxxx agrees to pay such reasonable attorney's fees as
incurred by Bailee.
SHOULD BAILEE FAIL TO COMPLY WITH ANY OF ITS MAJOR OBLIGATIONS UNDER THIS
AGREEMENT WITHIN THIRTY (30) DAYS FROM THE RECEIPT BY Bailee OF A NOTICE OF
DEFAULT, FROM XXXXXX; XXXXXX SHALL HAVE THE RIGHT TO TERMINATE AND CANCEL THIS
AGREEMENT WITHOUT FURTHER LIABILITY; HOWEVER, IF BAILEE HAS COMMENCED BY
REASONABLE MEANS TO CURE ANY DEFAULT NOT CURABLE IN THIRTY (30) DAYS, SUCH
ADDITIONAL TIME AS IS REASONABLY NECESSARY TO CURE SUCH DEFAULT SHALL BE GRANTED
BAILEE BEFORE BAILEE WILL BE ADJUDGED IN DEFAULT HEREUNDER. NON-PERFORMANCE BY
BAILEE TO DUE TO FORCE MAJEURE WILL NOT BE CONSIDERED DEFAULT.
12. If voluntary bankruptcy proceedings are instituted by EITHER PARTY or
if EITHER PARTY is adjudicated a bankrupt, or if EITHER PARTY makes an
assignment for the benefit of its creditors, or if execution is issued against
EITHER PARTY, or if the interest of EITHER PARTY hereunder passes by operation
of law to any person other than THAT PARTY then, in any of such events, THE
OTHER PARTY may, at its option, declare the within Agreement terminated by
notice thereof mailed by certified mail and addressed to THE OTHER at its last
known address, provided that Bailee shall retain its lien and privilege against
all Xxxxxx'x materials situated for any monies or payments due or to become due
Bailee.
13. Bailee reserves the right to reject any vessel, barge, tanker, rail
tank car or tank truck, or any material contained therein, which it reasonably
determines to be unsuitable for handling or in bad order, without liability
whatever on the part of Bailee to Xxxxxx for any loss, damage, demurrage or
expense, consequential or remote, sustained by Xxxxxx as a result of such
rejection.
14. It is stipulated that the charges specified herein or in the attached
schedule(s) are based upon Bailee's cost of operation and construction necessary
to comply with governmental laws, rules and regulations as presently enforced,
particularly with respect to environmental control and safety standards. If,
during the term of this Agreement, there should occur a change in policy
affecting enforcement of said laws, rules and regulations; or Bailee should
incur significant additional costs in continuing to comply with existing
regulations; or
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should there be enacted or promulgated new or revised laws, rules or regulations
requiring additions to or modifications of Bailee's facilities or changes in its
methods of operation increasing the cost of services and providing facilities
hereunder, and Bailee determines that it can modify its facilities or change its
methods of operations, Bailee shall advise Xxxxxx of any increase in costs
resulting therefrom, in which event the charges hereunder shall be adjusted to
compensate Bailee for such increased costs, provided however, Xxxxxx is granted
thirty (30) days from the date of advice of cost increases to elect whether to
accept such charges or to terminate the within Agreement. In the event Xxxxxx
elects to terminate the within Agreement, each party hereto shall thereupon be
discharged of any further liability hereunder.
15. EACH PARTY shall defend, indemnify and hold THE OTHER harmless for any
injury or damage caused by errors and omissions of surveyors, inspectors, or
other individuals designated by IT to act on ITS behalf on any phase of the
within agreement. EACH PARTY shall indemnify, defend and hold THE OTHER harmless
against any/all claims of injury or damages brought by ITS surveyors, inspectors
or other individuals/companies designated by IT to perform work on the property
of THE OTHER PARTY.
16. If this agreement is executed by more than one party as Xxxxxx, said
parties shall be jointly, severally and in solido liable hereunder.
17. The laws of the State of New Jersey shall govern and apply to the
terms of this Agreement and its performance thereof. THIS AGREEMENT WILL BE
PERFORMED IN ACCORDANCE WITH ALL APPLICABLE LOCAL, STATE AND FEDERAL LAWS.
18. This Agreement shall be binding upon, and inure to the benefit of the
successors, transferees and assigns of each of the parties hereto; provided,
however, that Xxxxxx shall not sublease storage covered by this Agreement or
transfer or assign this Agreement, in whole or in part, without the written
consent of Bailee, provided further, that in the event of assignment or sublease
Xxxxxx shall remain liable hereunder.
COGEN MAY ASSIGN THIS AGREEMENT TO ITS LENDER (PRUDENTIAL) OR AN
AFFILIATE WITHOUT IMTT'S CONSENT PROVIDING THAT COGEN WILL REMAIN LIABLE
HEREUNDER. IF COGEN SELLS ITS POWER PLANT ON IMTT'S PROPERTY TO ANOTHER PARTY
AND IMTT CONSENTS TO THE ASSIGNMENT OF THIS STORAGE AGREEMENT THEN COGEN WILL NO
LONGER REMAIN LIABLE FOR PAYMENTS SPECIFIED BY THIS AGREEMENT.
19. EITHER PARTY'S FAILURE TO STRICTLY AND PROMPTLY ENFORCE THE CONDITIONS
OF THIS AGREEMENT SHALL NOT OPERATE AS A WAIVER OF THAT PARTY'S RIGHTS REGARDING
ANY PROVISION OF THE AGREEMENT REGARDLESS OF ANY INDULGENCES OR EXTENSIONS
PREVIOUSLY GRANTED.
20. THIS AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT BETWEEN THE PARTIES
AND SETS FORTH ALL OF THE REPRESENTATIONS, COVENANTS AND WARRANTIES UPON WHICH
THE PARTIES RELY IN ENTERING THE AGREEMENT.
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21. Every provision of this Agreement is intended to be severable such that
if any term or provision is found to be illegal such provision will be severed
from this Agreement and shall not effect the validity of the Agreement.
22. No amendment or modification hereof shall be valid or binding upon the
parties hereto unless evidenced in writing and signed by duly authorized
representatives of each party.
23. Xxxxxx and Bailee will not be responsible to each other for
consequential damages resulting from the performance of this agreement.
Dated and signed by Bailee at Bayonne, New Jersey on the 17th day of May, 1994.
WITNESSES: IMTT-BAYONNE
/s/??????????????? By: /s/??????????????
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Title: Sales Manager
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Dated and signed
by_________________________; at_______________________________________________
_________________________, on the 17th day of May, 1994.
WITNESSES: COGEN TECHNOLOGIES NJ VENTURE INC.
/s/ ?????????????????????? BY: /s/??????????????????
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TITLE: V.P. - Mid Atlantic Region
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TITLE:
