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[EXHIBIT 10.7]
XXXXXXXX OIL CORPORATION ASPHALT SALES CONTRACT
000 Xxxx Xxxxx Xxxxxx XXX-0000-X (11/96)
X.X. Xxx 00000
Xxxx Xxxx Xxxx, Xxxx 00000-0000 Date: February 13, 1997
Attn: X. X. Xxxxx
Customer Number Loading Number
330510-001 918604409
Gentlemen:
Subject to the Additional Terms and Conditions which follow this page, the
undersigned as "Buyer" hereby offers to purchase the below stated quantities and
grades of asphalt from Xxxxxxxx Oil Corporation, as "Seller". When accepted by
you, this document shall constitute the entire contract between us.
CONTRACT PERIOD: FROM FEBRUARY 13, 1997 TO DECEMBER 31, 1997
GRADE OR SPECIFICATION AC-5/10/20 MC-70/250
QUANTITIES 19,000/TONS 500/TONS
METHOD OF DELIVERY TT TT
PRICE: F.O.B. ORIGIN, XXXXXXXX, WY $101.00/TON $121.00/TON
F.O.B. DESTINATION
DESTINATION: OREM OR POINT OF THE MOUNTAIN, UTAH
PROJECT # AND NAME: BASE PLANTS
GENERAL CONTRACTOR FOR PROJECT:
PAYMENT BOND #____________ ISSUED BY __________________ Covers the Products
Purchased Under this
Agreement
TERMS OF PAYMENT: NET 30 DAYS
FREIGHT RATE UTILIZED:
SALES AND USE TAXES: The amount of all applicable sales and use taxes shall be
paid by Buyer unless Buyer demonstrates exemption under the law from such taxes
in the state in which title passes to the satisfaction of Seller.
SPECIAL PROVISIONS:
Buyer: GENEVA ROCK PRODUCTS, INC Approved and accepted by Seller on
X.X. Xxx 000 Xxxxx 0, 0000
Xxxx, Xxxx 00000-0000 XXXXXXXX OIL CORPORATION
By: Xxxx X. Xxxxx
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ASPHALT SALES CONTRACT
ADDITIONAL TERMS AND CONDITIONS
QUANTITY VARIANCES
Buyer hereby agrees to purchase and receive from Seller under the terms and
conditions hereof and within the Contract Period, a quantity of each stated
grade of asphalt product equal to nor less than 90% of the stated Quantities.
Buyer hereby agrees to sell and deliver to Buyer, under the terms and conditions
hereof and within the Contract Period, the quantity of each stated grade of
asphalt product ordered by Buyer up to 110% of the stated Quantities.
FREIGHT CHARGES
Each F.O.B. Destination Price herein is based upon the Freight Rule utilized as
specified on the reverse side hereof. The F.O.B. Destination Price shall be
increased or decreased by the amount by which the actual freight charges vary
from the Freight Rate Utilized.
DELIVERIES
As to F.O.B. Destination sales, unless otherwise expressly stated in this
agreement, Seller shall not be obligated to deliver in less than full tank car
or tank truck. Buyer agrees to promptly unload upon arrival at destination all
tank cars or tank trucks supplied or arranged for by Seller and to pay all
charges arising form any delay in unloading same. Deliveries shall be made
within the usual business hours of the delivering facilities. Buyer shall
furnish, or cause to be furnished, to Seller the necessary shipping
instructions. Buyer shall be liable for all damages or injuries to persons or
property that are connected or related in any way to the loading or unloading of
product(s) sold hereunder (unless such damages or injuries are directly caused
by Seller's sole negligence), and shall indemnify Seller as provided below. The
burden of proving Seller's negligence shall be on Buyer.
PAYMENT
Buyer agrees to make payment in accordance with the Terms of Payment provision
on the first page hereof. In the event Buyer fails to do so, an interest charge
of 1 -1/2% per month, before and after judgment, shall be charged on the past
due balance, and Seller may (1) terminate this contract forthwith and without
notice, (2) suspend deliveries until all indebtedness is paid in full, and/or
(3) place Buyer on a cash-on-delivery or prepayment basis. In addition, if in
the sole opinion of Seller the financial responsibility of Buyer is impaired or
unsatisfactory to Seller, Seller may suspend deliveries and/or place Buyer on a
cash-on-delivery basis until Buyer makes arrangements for security satisfactory
to Seller or, at Seller's option, until all indebtedness to Seller is paid in
full.
DESTINATION
All asphalt products purchased hereunder shall be used by Buyer only at the
Destination and only on the Project identified on the reverse side hereof. Buyer
or its agent shall certify to Seller the destination of each shipment of asphalt
products purchased hereunder at time of shipment.
FORCE MAJEURE
Except as to payment due hereunder either party hereto shall be relieved from
liability hereunder for delay or failure to sell, deliver, purchase, or receive
asphalt products hereunder for the time and to the extent such delay or failure
is occasioned by war, military operations, national emergency, civil commotion,
fires, explosions, riots, governmental regulations, strikes or other industrial
disturbances or disagreements with workmen or unions, disruption or breakdown of
transportation facilities, floor or storms of an extraordinary or abnormal
nature, Seller shall be relieved from liability hereunder for delay or failure
to sell or deliver asphalt products hereunder for the time and to the extent the
supplies of Seller or the facilities of production, manufacture, transportation,
or distribution which otherwise would be available to Seller are impaired by
causes beyond the control of Seller or by order, requisition, request,
recommendation of any governmental agency or authority, or Seller's compliance
therewith, or by governmental proration, regulation, or priority, or from any
other delay or failure due to any cause beyond the control of the Seller,
similar or dissimilar to any such causes. The parties hereto recognize that
inasmuch as the asphalt products covered hereby are manufactured as a by-product
in the refining of other petroleum products, Seller shall be relieved from
responsibility hereunder for delay in or failure to sell or deliver asphalt
products hereunder for the time and to the extent that Seller's asphalt products
supplies are reduced due, at least in part, to market conditions for other
petroleum products or crude oil. When any of the above causes exist, and as a
result Seller's supplies of asphalt products are reduced, Seller shall have the
right, in its sole discretion, to restrict or cease deliveries hereunder and/or
to prorate, in any manner Seller deems appropriate, Seller's available supplies
among its various buyers. Provided further, that in order to obtain any release
from continuing obligations under this paragraph, the affected party shall give
timely notice and reasonably full particulars to the other party of the
conditions believed to justify relief under this paragraph. The affected party
shall notify the other party of any change in circumstances giving rise to the
suspension of its performance.
CLAIMS AND WARRANTIES
Notice of any claim by Buyer pertaining to any breach of this contract or to the
quality of asphalt products delivered or which should have been delivered
hereunder shall be made in writing to Seller within 30 days after the asphalt
products were or should have been delivered. With respect to any such claim,
Seller's total responsibility to Buyer shall be limited to the replacement of
shortages in or defective deliveries of asphalt products. Seller warrants that
it passes title to the product(s) purchased hereunder free and clear of all
liens or encumbrances, and that the product(s) conform(s) to the specifications
set forth herein with respect to such product(s). IN NO EVENT SHALL SELLER BE
LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. SELLER MAKES NO OTHER
WARRANTIES, EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS OR SUITABILITY FOR A
PARTICULAR PURPOSE OR OTHERWISE EXCEPT AS SET FORTH HEREIN. ANY IMPLIED
WARRANTIES ARE EXPRESSLY DISCLAIMED AND EXCLUDED.
In the event Buyer shall, within the Contract Period, fail to purchase and
receive at least the minimum quantities of each grade of asphalt products
required by this agreement, then Buyer shall be liable to Seller of 10% of
contract value of such quantities not purchased as compensation for additional
selling and other expenses incurred by Seller, and such other damages as Seller
may incur. All claims for monies
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due or to become due from Seller shall be subject to deduction by Seller for any
setoff or counterclaim arising out of this or any other transaction with Buyer
or its affiliates, whether such setoff or counterclaim arose before or after any
assignment by Buyer.
INDEMNITY
Buyer hereby relinquishes, release, discharges and agrees to indemnify, hold
harmless and defend Seller, its employees, agents and representatives, of and
from any and all claims, demands, liability and costs (including attorneys'
fees) for any loss, damage, injury or other casualty to property or to persons
caused by, growing out of, related to or happening in connection with the
delivery, sale, transportation, use or subsequent use, sale or distribution of
any product(s) purchased hereunder [unless such damages or injuries are directly
caused by Seller's sole negligence] including without limitation, any such loss,
damage, injury or death caused by the negligence of [Buyer], its employees,
agents or representatives of a third party.
COMPLIANCE WITH LAW
All provisions of this agreement are subject to all federal or state laws,
municipal ordinances, or any orders or regulations of any regulatory body
having, or purporting to have jurisdiction or control of any of the matters
involved herein. Buyer agrees to comply with such laws, ordinances, orders or
regulations relating to the handling, use, sale and transportation of product(s)
covered by this agreement and to require each subsequent purchaser for resale to
obligate itself. Buyer agrees to communicate all necessary warnings or to take
other precautionary action with respect to all persons handling, coming into
contact with or in any way concerned with the product sold hereunder, including
its employees, independent contractors and subsequent purchasers. Buyer
acknowledges receipt of Seller's material safety data sheet for product to be
received under this agreement.
TITLE AND RISK OF LOSS
Unless specifically agreed otherwise in this contract, title and risk of loss
shall pass as stated in this paragraph. For asphalt products sold F.O.B. Origin,
title and risk of loss shall pass from Seller to Buyer at Seller's point of
shipment, as asphalt product leaves the loading spout for delivery into Buyer's
equipment or into contract or common carrier hired by Buyer. For asphalt
products sold F.O.B. Destination, title and risk of loss shall pass form Seller
to Buyer as the asphalt product leaves the loading spout to enter the storage
tank at Buyer's point of receipt.
TAXES
Any tax, excise, fee, or other charge or any increase in any such tax, excise,
fee, or charge, now or hereafter imposed by law upon asphalt products sold and
delivered to Buyer hereunder, or upon the production, manufacture, storage,
sale, transportation, or delivery thereof which Seller is required to pay or
collect, shall be added to the prices herein stated and shall be paid by Buyer.
GENERAL
This Contract shall be binding upon and inure to the benefit of the personal
representatives, heirs and successor of Buyer and the successors and assigns of
Seller, but shall not be assigned by Buyer without the prior written consent of
Seller.
This Contract contains the entire agreement between the parties hereto and there
are no oral representation, stipulations, warranties, agreements or
understandings with respect tot he subject matter of this contract which are not
fully expressed herein. Neither this contract nor its execution has been induced
by any representation, stipulation, warranty, agreement or understanding of any
kind other than those herein expressed. The terms and conditions stated herein
shall prevail over any contradictory or conflicting terms and conditions
contained in Buyer's confirmation or acceptance and shall prevail over any
contradictory or conflicting course of dealing or usage of trade.
No amendment, addition to, alternation, modification or waiver of all or any
part of this contract shall be of any force or effect unless in writing and
signed by Seller and Buyer. Any notice, request or other communication required
that is permitted by or pertaining to this contract shall be in writing and
addressed to the other party at the address specified on the first page hereof.
