Exhibit 10.5
STORAGE AND THROUGHPUT AGREEMENT
Contract Number 069-940607
AGREEMENT, effective as of August 1, 1994, between Statia Terminals
Point Tupper, Incorporated, a corporation duly incorporated in Nova Scotia, (the
"Terminal Company") with offices at, 3817 Port Malcolm Road, Port Hawkesbury,
Nova Scotia, Canada, and the User.
The User desires the Terminal Company to supply to it, and the Terminal
Company desires to supply to the User, certain rights, services and facilities
in connection with the storage and transfer by the User of Commodities at the
Terminal Company's terminal located at Point Tupper near Port Hawkesbury, Nova
Scotia, Canada.
Accordingly, the parties agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. When used in this Agreement, the following terms have
the following meanings:
"Additional Facilities" means the facilities, if any, described on the
Variable Information Schedule.
"API Gravity" or "API" means the petroleum industry term for density of
petroleum liquid expressed in API units. This density is obtained by means of
simultaneous hydrometer and temperature readings, equated to, and expressed at
60 degrees Fahrenheit.
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* Asterisks indicated redacted language has been granted confidential
treatment pursuant to Section 552(b)(4) of the Freedom of Information
Act. 5 U.S.C. ss. 552(b)(4) (1996); See 17 C.F.R. ss. 200.80(b)(4)
(1996).
"Additional Services" means any service or services other than those
services expressly required pursuant to the terms and conditions of this
Agreement or the Terminal Regulations as specified on Schedule II attached
hereto and incorporated herein by this reference and which shall only be
provided at the written request of User, and after acceptance by Terminal
Company. Services other than those specified on Schedule II may be provided
pursuant to the mutual agreement between Terminal Company and User, and any such
services shall constitute Additional Services for the purposes of this
Agreement.
"Additional Services Charges" means the charges for Additional Services
as set forth on Schedule II hereto.
"Additional Term" means any additional time during which User has the
right to store Commodities at the Terminal as specified on the Variable
Information Schedule.
"Automatic Samplers" means a device installed in a flow and
automatically controlled so as to extract a representative sample of the flow,
in accordance with API standards.
"Barrel" means 42 U.S. gallons of 231 cubic inches each at 60 degrees
Fahrenheit.
"Berth I" means the outer tanker berthing facilities capable of safely
berthing and mooring vessels from 25,000 to 350,000 SDWT and which have a
maximum draft of 84 feet.
"Berth II" means the inner tanker berthing facilities capable of safely
berthing and mooring vessels from 4,000 SDWT to 50,000 SDWT and which have a
maximum draft of 45 feet.
"Book Inventory" means, for any period of time, the total of all
volumes of User's Commodities received by the Terminal minus the total of all
volumes of User's Commodities delivered by the Terminal expressed in Gross
Standard Volume. Book Inventory determination excludes Dock-to-Dock and
Ship-to-Ship Transfer volumes handled by the Terminal.
"Commingled Storage" means tankage which is available to User for
Commodities, but which may also contain compatible crude oil or petroleum
products of a third party.
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"Commodities" means such material as is specified on the Variable
Information Schedule or other such ********** as may be mutually agreeable
between the User and the Terminal Company. As used in this Agreement, the word
"Commodities" includes S&W when referring to gross quantities, but does not
include S&W when referring to net quantities.
"Commodity Transfer" means any physical movement of Commodities
involving use of any Facilities including, without limitation, Dock-to-Dock
Transfer and Tank-to-Tank Transfer.
"Common Facilities" means the facilities described in Section 2.1 of
this Agreement.
"Composite Sample" means a sample comprised of proportional portions
from samples drawn from each tank of tankships or shore tanks, in accordance
with API standards.
"Contract Loss" means, for each Contract Year, the product of the
volume of Commodities received into Dedicated Storage expressed in Gross
Standard Volume and point **********.
"Dedicated Storage" means the tankage at the exclusive disposition of
the User pursuant to the provisions of this Agreement.
"Dock-to-Dock Transfer" means the transfer of Commodities from one
tankship to another tankship by use of Berth I and Berth II and other Common
Facilities.
"Excess Loss" means Terminal Loss, determined at the end of each
Contract Year, in excess of Contract Loss.
"Excess Throughput" means Throughput Volume during any **********,
expressed as Gross Standard Volume, in excess of ********** the Storage Volume
as specified on the Variable Information Schedule.
"Excess Throughput Charge" means the amount specified as such on the
Variable Information Schedule, or the amount resulting from the application of
Section 5.3.
"Facilities" means the Common Facilities, Storage Tanks, and the
Additional Facilities, if any.
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"Force Majeure Event" means any event beyond the reasonable control of
the parties hereto, including, without limitation forces of nature, perils of
the sea, shipwrecks, acts of God, acts of government or any governmental
authority or agent thereof, arrests and restraints of governments and people,
strikes, lockouts, quarantines, epidemics, landslides, lightning, earthquakes,
fires, hurricanes, storms or storm warnings, floods, washouts, wars, civil or
military disturbances or interferences, acts of terrorism, explosions, breakage
or accident to the Terminal, and the breakage of pipes; provided, that any cause
of such force majeure shall not have been caused by or reasonably within the
control of the party claiming such force majeure, and which, by the exercise of
due diligence, such party shall not have been able to prevent or overcome.
"Force Majeure Period" means any period during which a Force Majeure
Event is in effect.
"Free Water" means the quantity of water resulting from measurements
with paste or interface detector, i.e. not entrained water present in oil.
"Gross Standard Volume" or "GSV" means the total volume of all
petroleum liquids and S&W, including Free Water, corrected to standard
temperature and pressure.
"Initial Storage Date" means the date specified as such on the Variable
Information Schedule.
"Loading Facilities" means the facilities described in Section 2.1(d)
of this Agreement.
"Minimum Monthly Charge" means the amount per month specified as such
on the Variable Information Schedule, or the amount resulting from the
application of Section 5.3.
"Net Standard Volume" or "NSV" means the total volume of all petroleum
liquids excluding S&W and Free Water, corrected to standard temperature and
pressure.
"Person" means any individual, corporation, company, partnership, joint
venture, association, firm, estate, trust, or other entity.
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"Physical Inventory" means the volume of Commodities held by the
Terminal for User's account including User's non-accessible tank bottoms and
pipeline contents as determined by a qualified independent inspector at a
specified time.
"Prime Rate" means the base rate on corporate loans posted by at least
75 percent of the 30 largest banks in the United States, as such rate may from
time-to-time be amended. The rate as reported from time-to-time in The Wall
Street Journal as the "Prime Rate" shall be deemed to constitute such rate
absent manifest error or a failure on the part of The Wall Street Journal to
report such rate for a period of 14 days or more.
"Receiving Facilities" means that portion of the Facilities described
in Section 2.1(c) of this Agreement.
"SDWT" means summer deadweight in metric tons.
"Sediment and Water" or "S&W" means all non-hydrocarbon materials which
are entrained in Commodities.
"Segregated Storage" means tankage at the Terminal available for the
Commodities and which do not simultaneously contain ********** of any third
party at the time the Commodities are in such tankage.
"Services" means the rights and services to be provided by Terminal
Company to User and more fully described in Article III hereof.
"Ship-to-Ship Transfer" means the transfer, other than a Dock-to-Dock
Transfer, of Commodities or any other crude oil or petroleum products from one
tankship to another tankship while one or more such tankships are berthed or
moored at Berth I or Berth II.
"Storage" means Commingled Storage, Dedicated Storage, and Segregated
Storage.
"Storage Tanks" means such tanks as are specified on the Variable
Information Schedule.
"Storage Volume" means the shell capacity of the Storage Tanks as
specified on the Variable Information Schedule.
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"Tank-to-Tank Transfer" means the transfer of Commodities between one
or more Storage Tanks or between any third party's storage and one or more
Storage Tanks.
"Term" means the number of Contract Years specified as such period of
time on the Variable Information Schedule, subject to the provisions of Article
IV of this Agreement.
"Terminal" means the crude oil and other refined petroleum product
storage and transshipment facilities of Terminal Company and subsequent
additions thereto, if any, located at Point Tupper near Port Hawkesbury, Nova
Scotia, Canada, including, without limitation, land, jetties, moorings, docks,
wharves, storage tanks, loading and discharging lines, pumps, and all other
facilities necessary or useful in connection with the performance of the
Services during the Tenn.
"Terminal Company" means Statia Terminals Point Tupper, Inc., a
corporation incorporated in Nova Scotia, Canada.
"Terminal Loss" means the Book Inventory for any period of time, minus
Physical Inventory, at the end of such period of time, expressed in Gross
Standard Volume. Cleaning of tank bottoms or any actual physical loss due to
fire, spillage, or another observable occurrence does not constitute a Terminal
Loss unless such occurrence is the result of negligence on the part of the
Terminal Company.
"Terminal Regulations" means Attachment I attached hereto and
incorporated herein by this reference, or the latest revision of Attachment I as
the same may be amended by Terminal Company from time to time at its sole
discretion as if attached hereto and incorporated herein; provided, however,
that if such amendment adversely affects User in any material way, such
amendment shall be subject to approval by User.
"Throughput Volume" means the volume of Commodities delivered into
Storage expressed as Gross Standard Volume. Dock-to-Dock Transfer or
Tank-to-Tank Transfer volumes delivered in any applicable month shall count as
Throughput Volume.
"Total Calculated Volume" or "TCV" means the total volume of all
petroleum liquids and S&W, corrected to standard temperature and pressure plus
all Free Water measured at observed temperature and pressure, i.e., Gross
Standard Volume.
"Total Variable Costs" means the aggregate cost of the items listed on
Schedule III attached hereto and incorporated herein by this reference as
determined annually in good faith by Terminal Company for the twelve months
ending each March 31.
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"United States Dollars" or "USD" means lawful currency of the United
States of America.
"User" means the Person specified as such on the Variable Information
Schedule and any assignee thereof permitted by Article X of this Agreement.
"Working Inventory" means Physical Inventory excluding non-accessible
tank bottoms and pipeline contents.
"Contract Year", "year", "quarterly period", "month", "day".
(a) "Contract Year" means a period of 12 consecutive months, the first
such period commencing on the Initial Storage Date and ending at midnight on the
day preceding the first anniversary of the Initial Storage Date, and each
subsequent period during the Term, or any extension thereof, commencing on each
such anniversary of the Initial Storage Date and ending at midnight on the day
preceding the next subsequent anniversary of the Initial Storage Date.
(b) "year" means a calendar year.
(c) "quarterly period" means the period starting on the Initial Storage
Date and ending at midnight on the day preceding the correspondingly numbered
day in the third month following the month in which the Initial Storage Date
falls and each period of three months thereafter. If there is no correspondingly
numbered day in the month during which the period ends, the period shall end at
midnight on the last day of such month.
(d) "month" means a calendar month.
(e) "day" means a 24 hour calendar day.
ARTICLE II
FACILITIES
2.1 Common Facilities. From and after the Initial Storage Date,
Terminal Company will make the following facilities (hereinafter the "Common
Facilities") available to User for User's use in accordance with the terms of
this Agreement and Terminal Regulations:
(a) Berth I;
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(b) Berth II;
(c) The Receiving Facilities (including unloading arms, hoses,
connectors, piping, and manifolding) capable of receiving Commodities from
vessels moored at either Berth I or Berth II using ship's pumps and ship's
power; and
(d) The Loading Facilities (including loading arms, hoses, connectors,
piping, and manifolding) capable of loading Commodities into vessels moored at
either, Berth I or Berth II.
2.2 Storage Tanks. Except as otherwise provided in Articles V or VI,
from and after the Initial Storage Date and continuing for the remainder of the
Term, Terminal Company shall make available to User for User's exclusive use in
accordance with the terms and provisions of this Agreement and the Terminal
Regulations the Storage Tanks. Each tank shall be capable of storing Commodities
and shall be connected with adequate piping and mixers.
2.3 Ownership. Notwithstanding anything to the contrary contained in
this Agreement, ownership of and title to all Facilities shall be and remain in
Terminal Company, and User shall acquire no right, title, or interest therein
except the right to use Facilities as per the terms of this Agreement and the
Terminal Regulations.
ARTICLE III
DESCRIPTION OF SERVICES
3.1 Operation of Terminal. Except as otherwise provided in Articles V
or VI, at all times subsequent to the Initial Storage Date, and continuing for
the remainder of the Term, Terminal Company shall maintain and operate the
Facilities in accordance with the terms and provisions of this Agreement,
Terminal Regulations, all laws, and governmental regulations.
3.2 Commodity Transfer. From and after the Initial Storage Date, and
continuing for the remainder of the Term, User shall have the right to store and
transfer Commodities through the Terminal as follows:
(a) User shall have the right to deliver cargoes of Commodities to the
Terminal for storage and Commodity Transfer. Terminal Company shall store the
Commodities in Dedicated Storage and redeliver the Commodities, subject to any
Terminal Loss, if any.
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(b) Notwithstanding anything to the contrary contained in this
Agreement, it is mutually understood and agreed by and between Terminal Company
and User that User may store only Commodities in the Storage Tanks.
3.3 Additional Services. In addition to the Services referred to above,
Terminal Company shall during the Term use reasonable efforts to make
arrangements, either directly or with independent contractors, for the supply of
Additional Services. Any such Additional Services shall be supplied in
accordance with this Agreement, the Terminal Regulations, and written
instructions received from User. User will be responsible for the payment for
any such Additional Services supplied.
3.4 Prohibited Activities. User shall not at any time sublet, rent, or
sublease or otherwise transfer or allow the use of any portion or all of the
Storage; provided that, at User's written request, Terminal Company shall from
time-to-time and on a case-by-case basis attempt to sublet a portion or all of
the Storage on terms and conditions which are mutually satisfactory to User and
Terminal Company, including but not limited to the applicability of throughput
volume of any third party to the Throughput Volume pursuant to this Agreement.
In the event there is a transfer of ownership of Commodities while in one or
more of the Storage Tanks, User shall remain responsible for all performance
under this Agreement, including but not limited to liability for payment of all
charges pursuant to this Agreement. User shall not engage in any Ship-to-Ship
Transfer or any Dock-to-Dock Transfer without the prior written approval of
Terminal Company, such approval not to be unreasonably withheld. The approval of
one such Ship-to-Ship Transfer or Dock-to-Dock Transfer shall not constitute
approval of any such future transfer.
ARTICLE IV
TERM OF AGREEMENT
4.1 Term. The initial Term of this Agreement shall commence on the
Initial Storage Date hereof and shall end at midnight on the day preceding the
anniversary of the Initial Storage Date corresponding to the number of Contract
Years in the initial Term of this Agreement as specified on the Variable
Information Schedule, subject to the provisions of Article VI of this Agreement.
4.2 Additional Term. Provided User is not in Default under any of the
terms, covenants, and provisions of this Agreement at the time of the exercise
of the right granted pursuant to this Section 4.2, User is hereby granted the
right to extend this Agreement for such additional period of years following the
expiration of the initial Term hereof as is specified on the Variable
Information Schedule **********. The exercise of this right must occur on or
before ********** but not more than
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********** prior to expiration of the initial Term by User providing Terminal
Company with written notice of User's election to exercise the right granted
pursuant to this Section 4.2.
ARTICLE V
MONTHLY CHARGES - INVOICING AND PAYMENTS
5.1 Minimum Monthly Charge. The User shall pay the Minimum Monthly
Charge which shall be due and payable on the first day of the month which
immediately follows the month in which the Initial Storage Date occurs and on
the first day of each month thereafter during the Term and any additional term
resulting from the exercise of the option granted pursuant to Section 4.2, if
any. The final payment shall be made on the first day of the month first
occurring after the end of the Term or any additional term resulting from the
exercise of the option granted pursuant to Section 4.2. The Minimum Monthly
Charge shall be due and payable without regard to (i) whether Commodities are
actually delivered to the Terminal by User, or any party on behalf of User, or
(ii) the amount of any Commodities actually delivered to the Terminal. Where the
Initial Storage Date does not occur on the first day of the month, the first and
last payment amounts shall be prorated by multiplying the Minimum Monthly Charge
by the number of actual days of the applicable month falling within the Term
divided by 30 days.
5.2 Excess Throughput Charge. In the event that the Throughput Volume
of Commodities during any ********** exceeds ********** the Storage Volume, User
shall pay the Excess Throughput Charge for each Barrel of Throughput Volume in
excess of ********** the Storage Volume during such quarterly period.
5.3 Escalation of Charges. Effective as of the first day of the
********** Contract Year and effective as of the first day of each Contract Year
thereafter and any Additional Term, the Minimum Monthly Charge shall be
increase, but not reduced, to an amount equal to the sum of **********, if the
adjusted Minimum Monthly Charge resulting from any such calculation represents a
year-to-year increase of greater than ********** or an increase of more than
********** over any ********** period commencing with the ********** Contract
Year, User may, at its option terminate this Agreement in accordance with the
procedure below. Terminal Company shall not be required to increase the Minimum
Monthly Charge to the full extent permitted by this Section. Effective as of the
first day of the ********** Contract Year and effective as of the first day of
each Contract Year thereafter, all Additional Services Charges shall be
increased, or further increased as the case may be, to amounts equal to the
product of the such Additional Services Charges prior to adjustment times a
fraction
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having a numerator equal to the adjusted Minimum Monthly Charge and denominator
equal to the Minimum Monthly Charge prior to adjustment.
On or before the May 1 immediately prior to the first day of the
********** Contract Year, and on or before each May 1 thereafter, Terminal
Company shall provide User with the Minimum Monthly Charge and all Additional
Services Charges for the immediately following Contract Year. If the Minimum
Monthly Charge increases by more than ********** for the next Contract Year or
more than ********** over any ********** period commencing with the **********
Contract Year, User shall notify Terminal Company of its election to terminate
this Agreement on or before the immediately following **********, and if User so
elects, User shall remove all Commodities from the Terminal on or before the
immediately following **********, and this Agreement shall terminate at the end
of the then current Contract Year.
The Total Variable Costs shall be subject to audit at User's sole cost
and expense by an auditor from a mutually acceptable internationally recognized
audit firm which is not the auditor for Terminal Company, User, or an affiliate
of Terminal Company or User. The auditor shall verify each line item of the
Total Variable Costs, but shall not provide User with detailed information with
regard to such Total Variable Costs.
5.4 Invoices for Charges. Terminal Company shall prepare and submit to
User an invoice or invoices with appropriate supporting detail for all
applicable charges. Each such invoice shall be sent by telex or facsimile
transmission to User at the number or numbers set forth on the Variable
Information Schedule as such number or numbers may be from time to time changed
by a notice given in accordance with Section 12.4. Any amount required to be
paid to Terminal Company pursuant to this Agreement or the Terminal Regulations
shall be effected in United States Dollars by telegraphic transfer to Terminal
Company's bank no later than 5 calendar days after transmission of a telex or
facsimile invoice subject to the provisions of Section 5.5.
5.5 Payments to the Terminal Company. Payments due on a Saturday shall
be paid on the Friday before, and payments due on a Sunday shall be paid on the
following Monday. Payments due on a holiday observed by major U.S. banks shall
be paid on the preceding day except when the holiday falls on a Monday and in
that instance payment is due on the following business day.
5.6 Taxes and Duties. Any and all taxes (except for taxes based solely
on the income of Terminal Company), duties, tariffs, goods and services taxes
(whether Federal or Provincial), and other such charges shall be for the account
of User and
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shall be invoiced to User in accordance with Section 5.4. Terminal Company
represents that the Terminal is presently a bonded warehouse and shall maintain
this status. In the event Free Enterprise Zone or other such regulatory changes
become available, Terminal Company and User will work together to implement such
status, if it is deemed advantageous.
5.7 Interest on Payment Due. Any amount due pursuant to this Agreement
or the Terminal Regulations and not paid when due shall bear interest from the
date due through the date of payment at **********. Such payments of interest
shall be made in the full amount due, free of any withholding tax imposed by any
government. Payment instructions shall be included in the telex or facsimile
invoice.
ARTICLE VI
EXCUSED NON-PERFORMANCE
6.1 Non-Compliance. Terminal Company reserves the right to reject any
and all Commodities tendered for Commodity Transfer which are not in compliance
with any applicable provision of this Agreement, including the Terminal
Regulations.
6.2 Disputes over Commodities. Commodities which are in any way
involved in litigation other than a general average or salvage claim, or the
ownership of which may be in dispute, or which are encumbered by a lien or
charge of any kind, shall not be accepted for Commodity Transfer.
6.3 Notice of Force Majeure Event. Upon the occurrence of any Force
Majeure Event, the party claiming such force majeure shall immediately give the
other party notice of the Force Majeure Event but in any event, such notice
shall be given within 3 days of the Force Majeure Event; provided, however, that
if the Force Majeure Event results in the total loss or material damage to any
portion of the Facilities, Terminal Company shall give notice of the Force
Majeure Event within 24 hours of its occurrence.
6.4 Rights and Obligations with Respect to Force Majeure. If as a
result of a Force Majeure Event Terminal Company or User fails or omits to carry
out or observe any of the terms or conditions of this Agreement or of the
Terminal Regulations to be carried out or observed by it, such failure or
omission shall not be deemed a breach of this Agreement or of the Terminal
Regulations; provided, however, in no such event shall the User be released from
its obligations to make any and all payments due hereunder, including, without
limitation, the payment during any Force Majeure Period of **********.
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6.5 Substitution of Space and Termination. If as a result of any Force
Majeure Event, there is a partial loss of Dedicated Storage capacity in the
Terminal so that the Terminal Company cannot provide the Storage Volume of
Dedicated Storage, then the following shall apply:
(a) Terminal Company shall have the right to substitute within
********** other suitable Dedicated Storage capacity, and this Agreement shall
continue in full force and effect. It is agreed between Terminal Company and
User that the substitution of other Dedicated Storage shall not have a material
adverse impact on User's cost of using the Terminal.
(b) If, after application of Section 6.5(a), the available Dedicated
Storage capacity is less than ********** of the Storage Volume for a continuous
period of **********. User shall have the option to terminate this Agreement
upon ********** written notice to Terminal Company.
(c) If, after application of Section 6.5(a), the available Dedicated
Storage capacity is less than ********** of the Storage Volume, Terminal Company
shall, within **********, give in writing notice (the "Restoration Notice") to
User as to Terminal Company's plans to restore the available Dedicated Storage
capacity to at least ********** of the Storage Volume and the anticipated time
required for such restoration. If the reasonably anticipated time required for
such restoration is in excess of ********** after the Restoration Notice, User
shall have ********** after receipt of the Restoration notice in which to make
an election in writing to terminate, this Agreement or for this Agreement to
continue in full force and effect, and failing such election within such
********** period, this Agreement shall continue in full force and effect.
(d) If, after application of Section 6.5(a), the Storage capacity
available to User is less than the Storage Volume, the Minimum Monthly Charge
shall be reduced to an amount equal to the Minimum Monthly Charge immediately
prior to such reduction times a decimal fraction having a numerator consisting
of the number of Barrels of Storage available to User and the denominator is
equal to the Storage Volume.
ARTICLE VII
LIABILITY, RISK, CUSTODY AND CLAIMS
7.1 Liability of the User. The User shall defend and indemnify and in
all cases be liable to Terminal Company for any damage, loss, or liability
suffered or incurred by Terminal Company on account of the injury to or death of
persons or
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damage to or destruction of Terminal Company's or any third party's property
(including government property and public property) which is caused by the
negligence or willful misconduct of or omission of User, its agents, or
employees which arises from or out of the delivery by User of Commodities which
do not meet the normal specification for the Commodities (or such other
********** as agreed pursuant to the definition of Commodities), or which
contain **********, and User shall hold harmless, indemnify, and defend Terminal
Company from and against any and all claims, suits, liabilities, and expenses on
account of such injury, death, damage, or destruction so arising.
7.2 Liability of the Terminal Company. Excluding any and all value for
loss of or damage to any of the Commodities, which loss or damage shall be
covered exclusively by the provisions of Section 7.3 hereof, Terminal Company
shall defend and indemnify and in all cases be liable to User for any damage,
loss, or liability suffered or incurred by User on account of the injury to or
death of persons or damage to or destruction of User's or any third party's
property, its agents, or employees, which is caused by the negligence or willful
misconduct of or omission of Terminal Company. Terminal Company shall defend,
indemnify and hold harmless User for any release into the environment of any
Commodities in the custody of Terminal Company, provided such release was not
caused by User's negligence and Terminal Company shall hold harmless, indemnify,
and defend User from and against all claims, suits, liabilities, and expenses on
account of any such injury, death, damage, loss or destruction so arising.
7.3 Risk of Loss of Commodities. Terminal Company shall be liable to
User for any loss of (without deduction of the Contract Loss) or damage to the
Commodities owned by or held in the name of User while in Terminal Company's
custody, provided such damage, loss, or liability arose from the negligence or
willful misconduct of Terminal Company, its agents, or employees.
7.4 Claims. Without limiting any other provision of this Agreement
except as expressly provided by this Section 7.4, neither party shall have any
liability arising out of or in connection with this Agreement unless the party
having such claim (the "Claiming Party") gives written notice in accordance with
the provisions of Section 12.4 hereof in reasonable detail within 30 days after
the date the Claiming Party obtains knowledge of the transaction or occurrence
giving rise thereto, and for quality claims only, within 90 days from the date
of such transaction or occurrence.
7.5 Consequential Damages. Notwithstanding any other provision of this
Agreement, under no circumstance shall either Terminal Company or User be liable
to the other for any special, indirect, incidental, or consequential loss or
damage of any
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nature whatsoever, irrespective of whether claims or actions for such loss or
damage are based upon contract, warranty, tort (including negligence), strict
liability, or otherwise.
ARTICLE VIII
LOSS ALLOWANCE
8.1 Measurements. Volume measurements for all Commodities and Free
Water shall be carried out in accordance with acceptable industry practice an as
specified in Articles 10 and 11 of the Terminal Regulations. All volume
determinations shall be to the nearest Barrel and all monetary calculations
shall be to 2 decimal points, except that Additional Services Charges shall be 4
decimal points.
8.2 Excess Loss. Subject to Section 7.3 and other provisions of this
Agreement regarding losses, Terminal Company shall be liable to User for any
Excess Loss. Any liability of Terminal Company to User for any Excess Loss shall
be calculated and settled at the ********** during the Term and any extensions
thereof by Terminal Company replacing such Excess Loss in kind on or before the
********** or paying to User the fair market value for the applicable
Commodities as of the end of the month following such Contract Year. However, it
is understood that the Terminal Company shall redeliver to User, less actual
physical loss, all Commodities delivered to the Terminal. All Terminal Loss
incurred up to the allowed Contract Loss shall be for User's account, and
Terminal Company shall have no liability whatsoever for such Contract Loss,
provided supporting documentation is verifiable by User or its designee.
8.3 Determination of Excess Loss. Determination of the amount of any
Excess Loss shall be made based upon quantities reported by a mutually
acceptable independent inspection company, if appointed, or as shown by Terminal
Company records and verified by the Terminal Company on a monthly activity
report.
ARTICLE IX
TERMINATION RIGHTS; REMEDIES
9.1 Termination Rights. During the Term either party (the "Notifying
Party"), without prejudice to its other rights, may terminate this Agreement by
giving to the other party (the "Defaulting Party") not less than 30-days' prior
written notice in the event that the Defaulting Party:
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(a) Files a voluntary petition in bankruptcy or a voluntary petition
for readjustment of its debt or for other similar relief under any applicable
bankruptcy or insolvency act or law;
(b) Makes an assignment for the benefit of creditors;
(c) Is adjudicated as bankrupt or insolvent and such adjudication
continues for 60 days after the entry thereof undismissed, unbonded, or
undischarged; or
(d) Fails in its performance of any material obligation hereunder and
fails to remedy such default within 30 days after receipt of notice thereof from
the Notifying Party.
9.2 Arbitration of Right to Terminate. If the Defaulting Party requests
arbitration pursuant to Article XI hereof in respect of the Notifying Party's
right to terminate pursuant to Section 9.1 hereof, and such request is made
within 10 days of the purported effective date of any notice of termination,
such termination shall be effective only if sustained in the arbitration
proceedings.
ARTICLE X
ASSIGNMENT AND THIRD PARTY USE OF TERMINAL
10.1 Assignment. Neither party to this Agreement shall have the right
to assign or otherwise transfer this Agreement or any of its rights or
obligations hereunder without the express written consent of the other party.
Such consent shall not be unreasonably withheld by Terminal Company or User.
However, either party may assign this contract to any of its affiliates,
provided the party so assigning remains obligated hereunder.
ARTICLE XI
ARBITRATION
11.1 Arbitration. Any dispute between the parties to this Agreement
concerning the meaning or effect of this Agreement, or the rights or liabilities
of the parties hereunder, or any matter arising out of the same or connected
therewith, shall, unless otherwise specifically provided herein, be finally
settled by arbitration in Halifax, Nova Scotia, Canada, in accordance with the
International Arbitration Rules of the American Arbitration Association
("Rules") by three arbitrators, one of which shall be appointed by each of the
parties. Each party shall appoint an arbitrator to be appointed by it within 15
days following any demand by either party for arbitration, and if either party
shall fail to so appoint the arbitrator to be appointed by it, its arbitrator
-16-
shall promptly be appointed by the American Arbitration Association. The third
arbitrator shall be appointed by the two arbitrators so appointed. If the said
two arbitrators fail for any reason to appoint a third arbitrator within 60 days
following their appointment, the third arbitrator shall be appointed in
accordance with the Rules. Judgement upon any award rendered by the arbitrators
may be entered in any appropriate court and/or any court having jurisdiction of
the party against whom enforcement thereof is sought. Neither the existence of
any dispute nor the pendency of any arbitration hereunder shall excuse either
party from performance under this Agreement.
ARTICLE XII
MISCELLANEOUS
12.1 Terminal Regulations. In the event of any difference or conflict
between this Agreement and the Terminal Regulations, the terms, conditions, and
definitions of this Agreement shall prevail.
12.2 Waiver. No benefit or right accruing to either party shall be
waived unless the waiver is reduced to writing and signed by both parties. No
waiver by either party of any provision of this Agreement shall be construed as
a waiver of any other provision, nor shall a waiver of any one default be
construed as a waiver of any other prior or subsequent like or different
default.
12.3 Authority. The User and Terminal Company each hereby represent and
warrant that:
(a) It is a corporation duly organized, validly existing, and in good
standing under the laws of the jurisdiction of its incorporation and has all
requisite corporate power and authority to enter into this Agreement and to
carry out the terms and provisions hereof,
(b) There is no action, proceeding, or investigation pending or
threatened, and no term or provision of any charter, by-law, mortgage,
indenture, contract, agreement, instrument, judgement, decree, order, statute,
rule, or regulation which in any way prevents or interferes with or adversely
affects the entering into by it, or the carrying out by it, of any of the terms
or provisions of this Agreement;
(c) No approval of any governmental body is required for carrying out
this Agreement;
-17-
(d) The execution and delivery hereof has been duly authorized by all
necessary corporate action of such party and that this Agreement constitutes the
valid and binding obligation of such party; and
(e) Each party hereby agrees to provide, at the time of signature of
this Agreement, such evidence as the other shall reasonably request supporting
the representations and warranties of this Section, and each shall provide to
the other party documents reasonably acceptable to the other party evidencing
their individual ability to meet their financial obligations pursuant to this
Agreement.
12.4 Notices.
(a) Manner of Giving Notices. To the extent that either party is
required by this Agreement to give notice to the other party in respect of any
claim or dispute, or of the exercise of any right or option under this
Agreement, such notice shall be sufficiently given if sent by facsimile or
reputable courier service. Fax notification shall be verified
i. The User as specified on the Variable Information
Schedule.
ii. The Terminal Company at its address as follows:
Statia Terminals Point Tupper, Inc.
3817 Port Malcolm Road
Port Hawkesbury, Nova Scotia B0E 2V0
Canada
Facsimile: 902-625-3098
and confirmed by the originating party by registered letter sent by first class
mail or an internationally known and reputable courier service to the other
party at the relevant address stated above or to such other address as shall be
furnished to the other party hereto in writing.
(b) Sufficiency of Notices. Notices to either party pursuant to the
Terminal Regulations and other similar, or dissimilar, notices under this
Agreement shall be sufficiently given if sent by cable, telex, or facsimile to
the relevant party at its address as stated in Section 12.4(a) hereof. All such
notices, including but not limited to any notice pursuant to Section 12.4(a)
hereof, sent by telex or facsimile shall be deemed to have been received at the
time sent by the sending party if sent during normal business hours at the
receiving location, or if not sent during such normal business hours, at 9 a.m.
on the next business day of the receiving party.
-18-
12.5 Governing Law. This Agreement shall be interpreted in accordance
with the law of Nova Scotia, Canada, applicable to agreements made and to be
performed entirely within Nova Scotia without regard to any conflict of laws
provision or case law of Nova Scotia which would otherwise cause the application
of the law of any other jurisdiction.
12.6 Entirety; Execution. This Agreement (including the Terminal
Regulations) comprises the entire agreement between the parties with respect to
the subject matter hereof, and merges and supersedes all prior representations
and understandings between the User and the Terminal Company concerning the
subject matter or in consideration hereof Neither this Agreement nor any
subsequent agreement amending, supplementing, or terminating this Agreement
shall be binding on either the User or the Terminal Company unless and until it
has been executed by their respective duly authorized representatives.
12.7 Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect the meaning or interpretation of
this Agreement.
IN WITNESS WHEREOF, this Agreement has been executed in duplicate
originals, as of the day first herein specified.
STATIA TERMINALS POINT *****************
TUPPER, INC.
By:
-------------------------
Title:
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SCHEDULE I
VARIABLE INFORMATION SCHEDULE
For the purposes of the Storage and Throughput Agreement to which this
Variable Information Schedule is attached, the terms used in such Storage and
Throughput Agreement shall be additionally defined as follows:
User: **********
Commodities: **********
Storage Tanks: **********
Storage Volume: **********
Additional Facilities: **********
Initial Storage Date: August 1, 1994
Term: Five Contract Years.
Additional Term: Two (2) additional consecutive five (5)
Contract Year storage periods immediately
following the initial Term.
Minimum Monthly
Charge: **********
Excess Throughput
Charge: **********
Notices: All notices to which Section 12.4 applies
shall be sent to:
* * * * * * * * * *
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SCHEDULE II
ADDITIONAL SERVICES
For the purposes of the Storage and Throughput Agreement to
which this Schedule II is attached, the Additional Services
and Additional Services Charges are as follows:
=============================================================
Additional Services: Additional Services Charges:
- -------------------------------------------------------------
Dock-to-Dock **********
Transfers:
- -------------------------------------------------------------
Ship-to-Ship **********
Transfers:
- -------------------------------------------------------------
Mixing: **********
- -------------------------------------------------------------
Other: None.
=============================================================
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SCHEDULE III
STATIA TERMINALS POINT TUPPER, INC.
1994 PLAN OPERATING COSTS*
In US Dollars
**********
- --------
* The 1994 Plan Operating Costs are anticipated to be substantially the
same as those for the first Contract Year (August 1, 1994 to July 31,
1995). The aggregate cost of the above listed items, as determined each
March 31, shall constitute the Total Variable Costs.
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TERMINAL REGULATIONS
FOR
STATIA TERMINALS POINT TUPPER,
INCORPORATED
Attachment I
-23-
TERMINAL REGULATIONS
FOR STATIA TERMINALS POINT TUPPER, INCORPORATED
ARTICLE 1
General
1.01 Statia Terminals Point Tupper, Incorporated, hereinafter referred
to as Terminal Company, shall carry out the Handling of Commodities and all
Commodity Transfers at its Terminal in accordance with these Terminal
Regulations.
1.02 These Terminal Regulations shall in part determine the relations
between Terminal Company and the User with respect to the services rendered.
User's use of the Terminal shall, at all times, be governed by and be in
accordance with the provisions of these Terminal Regulations and the Agreement.
1.03 In the event of any difference or conflict between these Terminal
Regulations and the Agreement between Terminal Company and the User, the terms,
conditions, and definitions of the Agreement shall prevail.
ARTICLE 2
Definitions
The following terms shall have the meanings specified below unless the
context otherwise requires:
"Additional Facilities" means the facilities, if any, described on the
Variable Information Schedule.
"API Gravity" or "API" means the petroleum industry term for density of
petroleum liquid expressed in API units. This density is obtained by means of
simultaneous hydrometer and temperature readings, equated to, and expressed at
60 degrees Fahrenheit.
"Agreement" means the Storage and Throughput Agreement, and any and all
Schedules and Attachments thereto, effective as of August 1, 1994, between
Terminal Company and the User, and when the term "Agreement" is used in these
Terminal Regulations in conjunction with a section number or article number,
such reference
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means the correspondingly numbered section or article of such Storage and
Throughput Agreement not a section or article of these Terminal Regulations.
"Allowed Berth Occupancy" shall have the meaning ascribed to such term
in Section 8.02 hereof.
"Automatic Samplers" means a device installed in a flow and
automatically controlled so as to extract a representative sample of the flow,
in accordance with A.P.I. standards.
"Barrel" means forty-two (42) U.S. gallons of 231 cubic inches each, at
60 degrees Fahrenheit.
"Berth I" means the outer tanker berthing facilities capable of safely
berthing and mooring Vessels from 25,000 to 350,000 SDWT and which have a
maximum draft of 84 feet.
"Berth II" means the inner tanker berthing facilities capable of safely
berthing and mooring Vessels from 4,000 SDWT to 50,000 SDWT and which have a
maximum draft of 45 feet.
"Berth" means Berth I or Berth II or both Berth I and Berth II.
"Berth Occupancy" shall have the meaning ascribed such term in Section
8.01.
"Blending" means the process whereby Commodities of one type are mixed
or otherwise processed with one or more Commodities of another type in specified
proportions.
"Bottoms" means any Commodities remaining in a tank after the tank has
been emptied and stripped.
"Commingled Storage" means tankage which is available to User for
Commodities, but which may also contain compatible crude oil or petroleum
products of a third party.
"Commodities" means such material as is specified on the Variable
Informati on Schedule or other such ********** as may be mutually agreeable
between the User and the Terminal Company. As used in this Agreement, the word
"Commodities" includes S&W when referring to gross quantities, but does not
include S&W when referring to net quantities.
-25-
"Commodity Transfer" means any physical movement of Commodities
involving use of any Facilities including, without limitation, Dock-to-Dock
Transfer, Ship-to-Ship Transfers and Tank-to-Tank Transfer.
"Common Facilities" means the facilities described in Section 2.1 of
the Agreement.
"Critical Zone" means the area in the Storage Tanks identified as such
by the strapping tables produced by an Independent Petroleum Inspection Company
for such Storage Tanks.
"Dedicated Storage" means the tankage at the exclusive disposition of
the User pursuant to the provisions of the Agreement.
"Delivery Point" means the point at which the Terminal's loading hose
or arm connects with the Vessel's manifold connection or reducer.
"Dock-to-Dock Transfer" means the transfer of Commodities from one
tankship to another tankship by use of Berth I and Berth II and other Common
Facilities.
"Excess Berth Occupancy Charge" means a charge levied against a Vessel
for her occupying the Berth for a period beyond the Allowed Berth Occupancy.
"Facilities" means the Common Facilities, Storage Tanks, and the
Additional Facilities, if any.
"Gross Standard Volume" or "GSV" means the total volume of all
petroleum liquids and S&W, including Free Water, corrected to standard
temperature and pressure.
"Handled" or "Handling" means the receipt, throughput, storage,
blending, Dock-to-Dock Transfers, Tank-to-Tank Transfer, or redelivery of
Commodities by Terminal Company or any combination of such activities.
"Insurance Gauge" means a process during a Commodity Transfer, where a
Vessel discharges or loads Commodities for an agreed period of time, Commodity
Transfer is stopped and both the Vessel's tanks and the shore tanks are gauged
to determine the net change in each so as to calculate the quantity of
Commodities in the transfer lines prior to the start of the Commodity Transfer.
-26-
"Handling Plan" shall have the meaning ascribed to such term in Section
6.08(a).
"Laytime" shall have the meaning ascribed to such term in Section 7.01
hereof.
"Notice of Readiness" means the advice from the Vessel's Master that
the Vessel under his command has arrived at the designated anchorage area and is
in a suitable condition in all respects to commence the discharge or loading of
cargo. A Notice of Readiness will not be deemed to be properly given unless, at
the time such notice is given, the Vessel is in fact ready in all respects to
commence the discharge or loading of cargo, as the case may be.
"Observed Temperature" means the temperature of any Commodities at the
time of testing as determined by a temperature sensing device or thermometer.
"Port" means terminal of Point Tupper and its approaches.
"Receiving Facilities" means that portion of the Facilities described
in Section 2.1 (c) of the Agreement.
"Receiving Point" means the point at which the Vessel's manifold
connection connects with Receiving Facilities.
"SDWT" means summer deadweight in metric tons.
"Sediment and Water" or "S&W" means all non-hydrocarbon materials which
are entrained in Commodities.
"Segregated Storage" means tankage at the Terminal available for the
Commodities and which do not simultaneously contain of any third party at the
time the Commodities are in such tankage.
"Ship-to-Ship Transfer" means the transfer, other than a Dock-to-Dock
Transfer, of Commodities or any other crude oil or petroleum products from one
tankship to another tankship while one or more such tankships are berthed or
moored at Berth I or Berth II.
"Shipment" means a quantity of Commodities Handled or to be Handled by
the Terminal.
-27-
"Shipping Terms" means the latest addition of INCOTERMS, the
international rules for the interpretation of trade terms.
"Storage Tanks" means such tanks as are specified on the Variable
Information Schedule.
"Tank-to-Tank Transfer" means the transfer of Commodities between one
or more Storage Tanks or between any third party's storage and one or more
Storage Tanks.
"Terminal" means the crude oil and other refined petroleum product
storage and transshipment facilities of Terminal Company and subsequent
additions thereto, if any, located at Point Tupper near Port Hawkesbury, Nova
Scotia, Canada, including, without limitation, land, jetties, moorings, docks,
wharves, storage tanks, loading and discharging lines, pumps, and all other
facilities necessary or useful in connection with the performance of the
Services during the Term.
"Ton" means a metric ton of 1,000 kilograms.
"User" means the Person specified as such on the Variable Information
Schedule and any assignee thereof permitted by Article X of the Agreement.
"Vessel" means any one of various types of marine equipment, including
tank barges and tanker ships.
"Vessel Nomination" means the declaration by the User to Terminal
Company of a Vessel, the expected date of the Vessel's arrival and detailed
description of the Commodities to be loaded or discharged as required by Article
6 hereof.
"Working Day" means hours between 0800 to 1700 (Atlantic Time Zone)
Monday through Friday excluding legal holidays observed in Nova Scotia.
"Contract Year", "year", "quarterly period", "month", "day".
i. "Contract Year" means a period of 12 consecutive months, the
first such period commencing on the Initial Storage Date and
ending at midnight on the day preceding the first anniversary
of the Initial Storage Date, and each subsequent period during
the Term, or any extension thereof, commencing on each such
anniversary of the Initial Storage Date and ending at midnight
on the day preceding the next subsequent anniversary of the
Initial Storage Date.
-28-
ii. "year" means a calendar year.
iii. "quarterly period" means the period starting on the Initial
Storage Date and ending at midnight on the day preceding the
correspondingly numbered day in the third month following the
month in which the Initial Storage Date falls and each period
of three months thereafter. If there is no correspondingly
numbered day in the month during which the period ends, the
period shall end at midnight on the last day of such month.
iv. "month" means a calendar month.
v. "day" means a 24 hour calendar day.
ARTICLE 3
Characteristics and Grades of Commodities
3.01 Terminal Company reserves the right to refuse to accept any
Commodities or class of Commodities which fail to meet the specifications
mutually agreed upon by Terminal Company and User.
3.02 The User shall advise Terminal Company of the quality and quantity
of each Shipment of Commodities in terms of S&W, degrees API Gravity,
temperature, pour point, flash point, ash, name and source, and such other
specifications as may be reasonably requested by Terminal Company, all in
accordance with the time requirements of Article 6 hereof. User agrees to supply
Terminal Company with a copy of any Material Safety Data Sheet applicable to
any-and all Commodities to be received at the Terminal.
3.03 Except as otherwise specifically agreed in writing between the
User and Terminal Company all Commodities delivered to Terminal Company shall be
stored in Segregated Storage.
3.04 User acknowledges that Terminal Company shall have an absolute
tight to rely upon the accuracy of such information given pursuant to the
provisions of Section 3.02 hereof, within the limits of reproducibility of
testing. User expressly assumes full and complete responsibility for the truth
and accuracy of this information, and User expressly agrees to indemnify and
hold Terminal Company harmless from and against any and all liability, claims,
demands, costs, expenses and damages incurred or
-29-
suffered by Terminal Company as a direct or indirect result of any inaccuracies
in such information.
3.05 Terminal Company shall have a right, at the User's expense, to
request and receive samples from each tank of User's Vessel prior to accepting
delivery of any cargo; provided, however, that Terminal Company's requesting
said sample shall not relieve User of its obligations stated in Section 3.04
above.
3.06 Unless other arrangements are made with Terminal Company and User,
Terminal Company shall have a right to refuse to accept any Commodities having a
viscosity in excess of 1000 centistoke at the Observed Temperature at the time
of arrival or during discharge.
3.07 Unless other arrangements are made between Terminal Company and
User, Terminal Company shall have the right to refuse to accept any Commodities
having an Observed Temperature at the commencement of discharge or at any time
during discharge less than 15 degrees F above the pour point of the Commodities
as determined by tests in accordance with Article 10 hereof.
ARTICLE 4
Vessel Requirements and Performance Criteria
4.01 Rated Capabilities. Terminal Company's Terminals Facilities shall
be capable of meeting the following performance criteria:
(a) Berthing of Vessels from 25,000 to 350,000 SDWT with a maximum
draft of 84 feet at Berth I or Vessels from 4,000 SDWT to 50,000 SDWT with a
maximum draft of 45 feet at Berth II.
(b) Receiving Commodities from Vessels (using ship's pumps and ship's
power) at rates up to 100,000 Barrels per hour and pressures not less than 100
psig nor greater than 175 psig (measured at the Vessel's rail).
(c) Loading Commodities into vessels by gravity at rates up to that
sufficient to load the vessel within 24 hours.
4.02 Vessels Discharging. All Commodities received by Terminal Company
from User shall arrive in Vessels from 25,000 SDWT to 350,000 SDWT with a
maximum draft of 84 feet at Berth I or Vessels from 4,000 SDWT to 50,000 SDWT
with a maximum draft of 45 feet at Berth II. The pumping capacity of all Vessels
-30-
arriving at the Terminal (based upon normal discharge including stripping) shall
be ********** of its total cargo carrying capacity per hour. Additionally, all
Vessels arriving at the Terminal shall, during discharge, maintain a continuous
(average) pressure (measured at Vessel's rail) of not less than 100 psig.
4.03 Vessels Loading. The User may nominate Vessels from 4,000 SDWT to
350,000 SDWT to receive Commodities redelivered by Terminal Company provided
that the Vessel is capable of receiving cargo at a rate of ********** of its
SDWT per hour. Terminal Company shall make all reasonable effort to load
Commodities on to a Vessel at a rate sufficient to complete loading of such
Vessel within twenty-four hours, but in no event at a rate in excess of the safe
physical limitations of the Terminal.
4.04 Nonperformance by Vessels. If after twenty (20) hours of Commodity
Transfer, the Vessel performance criteria specified in Sections 4.02 and 4.03
have not been met, such that completion of the Commodity Transfer is anticipated
not to be complete within 24 hours after initiation of the Commodity Transfer,
due to conditions not within the control of Terminal Company, Terminal Company
shall have the fight to have the Berth vacated, subject to considerations of
safety, at no expense to Terminal Company. Furthermore, in the event that any
Vessel fails to meet the performance criteria on any two occasions, Terminal
Company reserves the right to refuse thenceforth to accept such Vessel.
4.05 Clean Segregated Ballast Facilities. All Vessels, without regard
to size, shall be fitted with clean segregated ballast facilities equal to not
less than the minimum required by the MARPOL Protocols or twenty-five percent
(25%) of the Vessel's SDWT, whichever is the greater. Dirty ballast and slop oil
receipt facilities shall not be provided by the Terminal and overboard discharge
of oily water is strictly prohibited.
The User shall have within the charter of any Vessel nominated, a clause that
requires the master of the Vessel to comply with the VOLUNTARY GUIDELINES FOR
THE CONTROL OF BALLAST WATER DISCHARGE FROM SHIPS as issued by the Canadian
Coast Guard.
ARTICLE 5
Principles of Operations
5.01 Terminal Company shall operate in accordance with the following
principles:
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(a) The provisions of this section shall apply to Users utilizing
Dedicated, Segregated or Commingled Storage. Users shall adhere to the Handling
programs set forth in Articles 6, 7 and 8 below. While Terminal Company shall be
entitled to refuse any Vessel Nomination that interferes with those programs,
Terminal Company shall, nevertheless, use its best efforts to accommodate User's
request.
(b) If the User is unable to deliver Commodities to meet the Handling
program, then Terminal Company shall endeavor to reschedule the Shipment; but if
it is unable to do so without adversely affecting the Handling program then the
User shall forfeit the programmed use involved.
(c) Except as otherwise expressly agreed by Terminal Company and User,
if the User is unable to take redelivery of its Commodities from Terminal
Company in time to meet the Handling program, then Terminal Company shall
endeavor to reschedule the Shipment, but if it is unable to do so without
adversely affecting the Handling program, Terminal Company shall be entitled to
take the following action:
(i) Advise the User at least seven (7) days in advance of
the termination of the allowable storage time.
(ii) In the event User is unable to take redelivery of its
Commodities from Terminal Company prior to expiration
of the seven (7) days from the date of the notice
provided in Item (i) above, then Terminal Company
shall be entitled to proceed in any commercially
reasonable manner to sell such Commodities in place.
The proceeds of any such sale shall be applied first
to cover any and all costs and expenses incurred in
connection with the sale, and secondly as an offset
against any sums owed to Terminal Company by User.
The balance (if any) of such proceeds shall be held
by Terminal Company and credited to User's account.
If the proceeds of sale are insufficient, then User
shall be liable for any deficiency.
(iii) All costs reasonably incurred by Terminal Company and
arising from the disposition of User's Commodities
pursuant to the provisions of Item (ii) above shall
be charged to the account of User and shall be due
and payable, net upon receipt of Terminal Company's
invoice.
User hereby expressly authorizes and appoints Terminal Company as its
agent for the sale of these Commodities pursuant to the provisions of this
Article 5 and
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Article 13, and User agrees to indemnify and hold Terminal Company harmless from
and against any and all claims, charges or demands (including demands of User)
made against Terminal Company in connection with any such sale.
5.02 Terminal Company shall carry out the Handling of Commodities in
accordance with good Handling practices as generally accepted in the terminating
industry.
5.03 The User shall be responsible for settling the necessary statutory
formalities and the payments of the appropriate duties, if any, and shall
indemnify and hold Terminal Company ham-Jess from same.
5.04 The User shall be responsible for and shall pay all costs
associated with the cleaning of the tanks dedicated to User's use.
ARTICLE 6
Nomination and Reception of Vessels
6.01 A User interested in having Terminal Company receive (discharge)
or redeliver (load) Commodities shall notify Terminal Company in writing not
less than fifteen (15) working days prior to the subject Vessel's arrival at the
Terminal. Said notice (hereinafter called "Vessel Nomination") shall specify (i)
the name of each Vessel nominated, its operator (from which port charges are
due), and its agent, (ii) a five (5) day date range within which User desires to
load or discharge Commodities, (iii) the volume of each Shipment, (iv) the
specifications (including but not limited to the information specified in
Section 3.02) of the Commodities to be loaded or discharged and (v) that the
Vessel complies with the restrictions and obligations as described in Article 5
and Article 15 herein.
6.02 **********. Terminal Company shall have ********** Working Days
after receipt of the Vessel Nomination within which to reject all or a portion
of said Vessel Nomination or to suggest modifications thereto. No Vessel
Nomination shall be unreasonably rejected by Terminal Company; however, Vessels
are subject to acceptance at the time of arrival off port by the Canadian Coast
Guard for which Terminal Company assumes no responsibility or liability.
6.03 In the event that Terminal Company has rejected a Vessel
Nomination, User shall have ********** Working Days after such rejection to make
a new Vessel Nomination or to agree to any alteration or modification suggested
by Terminal Company in its Notice of Rejection; provided, however, that if
Terminal Company does
-33-
not reject User's new or modified Vessel Nomination within two (2) Working Days
after receipt thereof, then Terminal Company shall be deemed to have accepted
said new or modified Vessel Nomination. If User and Terminal Company are unable
to agree on a firm Vessel Nomination, Terminal Company may suggest Vessel
Nominations to User which meet Berth requirements.
6.04 Acceptance of a Vessel Nomination by Terminal Company shall
reserve the requested Berth for the nominated periods, subject to scheduling
adjustments which may be agreed to between Terminal Company and User.
6.05 Not later than seven (7) days prior to the midpoint of each of the
five (5) day date ranges of User's accepted Vessel Nomination, User shall narrow
the five (5) day date range to a two (2) day date range within which User
desires to have its ship loaded or discharged (as the case may be). The two (2)
day date range specified by User pursuant to the provisions of this Section 6.05
shall be wholly within the five (5) day date range specified in the User's
Vessel Nomination.
6.06 User shall have the right to substitute for a ship previously
nominated, pursuant to Section 6.01 above, another Vessel transporting similar
quality and quantity of Commodities, provided User gives Terminal Company notice
of such substitution at least two (2) Working Days prior to the substituted
Vessel's arrival. Any such notice of substitution shall be in writing and shall
contain the information required, in Section 6.01 above. The scheduled arrival
date range of any Vessel thus substituted shall not, without the written consent
of Terminal Company, differ from the latest accepted scheduled date range as
specified in Section 6.05. Terminal Company reserves the right to reject such
substitute Vessel by giving notice of rejection setting forth the reason for
such rejection within one (1) Working Day of receipt of such substitution
nomination.
6.07 User acknowledges and agrees that User is familiar with the
layouts and capabilities of the Terminal. All Vessels nominated or substituted
by User shall be suitable for loading or discharging at the Terminal without
alteration or modification of any Facilities.
6.08 Handling Plan.
(a) The discharge or loading shall be executed in accordance with
a plan (the "Handling Plan") agreed upon by Terminal Company
and the Vessel's Master.
(b) Subject to the provisions of Article 7 hereof, Terminal
Company shall, at all times, use its best efforts to permit
discharge of the Vessel at its
-34-
maximum pumping rate or, as the case may be, to load the
Vessel at its maximum receiving rate. However, Terminal
Company shall be entitled to interrupt discharging or loading
and to have the Berth vacated in case of emergency, subject to
considerations of safety.
(c) The Vessel must be equipped with mooring lines of fiber or
synthetic construction or wire ropes with fiber or synthetic
rope pendants attached to the ends, of such construction as to
meet the minimum normal breaking strength for a mooring line
of the Vessel involved.
6.09 Upon completion of the loading of a Vessel at the point of
loading, User or its agent shall notify Terminal Company in writing of the name
of the Vessel, the name of the Vessel's agent, the temperature, quantity and
specifications (including but not limited to the information specified in
Section 3.02 hereof) of cargo loaded on board for discharge at the Terminal and
the Vessel's estimated time of arrival. If requested by Terminal Company, User,
at User's sole cost and expense, shall cause samples from each of the Vessels
cargo tanks and from each of the Vessel's bunker tanks to be provided to
Terminal Company. The samples shall be taken and certified by a mutually agreed
upon independent inspector appointed by User.
6.10 User shall arrange for its Vessels to report to Terminal Company
at least at the time of departure from her prior port of call, thence
seventy-two (72) hours, and again forty-eight (48) hours before arrival, stating
the expected date and hour of arrival. Similar notices shall be given at least
twenty-four (24) hours in advance of the estimated time of arrival and
thereafter for any change of time of arrival of one (1) hour or more. Any delays
getting into Berth by reason of Master's failure to supply such reports shall be
for User's account. The cost of any delays of Vessel getting into Berth as a
result of Master's failure to supply required notices of arrival shall be for
User's account.
6.11 In scheduling the availability of a Berth for other users,
Terminal Company shall have the right to rely upon the information contained in
the notices given pursuant to the provisions of Sections 6.05, 6.06, 6.09, and
6.10 hereof.
**********
6.13 Subject to the provisions of Section 6.12 hereof, when a Berth
becomes available, Terminal Company shall give the Vessel's Master or designated
agent a notice to proceed to Berth. User's Vessel shall not proceed to berth
until it has received a notice to proceed to Berth from Terminal Company.
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6.14 Terminal Company shall receive the Shipment in the User's name.
Upon arrival of Vessel and prior to the commencement of discharge, User shall
have samples drawn from each of the Vessel's cargo, ballast and bunker tanks.
The Master shall supply Terminal Company with Vessel's cargo manifest, the bill
of lading and other documents showing the grade(s) and respective quantities and
qualities of the Commodities. If the shipping documents cannot be delivered to
Terminal Company one (1) day prior to the Vessel's arrival, the quantity and
characteristics of each grade to be discharged shall be communicated to Terminal
Company by telex or facsimile.
6.15 The completion of discharge or loading shall be determined by the
Master of the Vessel in consultation with Terminal Company.
ARTICLE 7
Laytime and Demurrage
7.01 Laytime, for Vessels tendering Notice of Readiness to load or
discharge within the two (2) day date range prescribed in Section 6.05 hereof,
shall commence six (6) hours after such notice has been received by Terminal
Company or when the Vessel is all fast at the Berth, whichever first occurs.
Laytime shall terminate upon disconnection of the cargo arms or hoses, as
applicable, or in the event that the Master or crew of the Vessel will not allow
for prompt disconnecting of the cargo arms or hoses, one hour after completion
of discharge. In the event the Vessel arrives outside of the two day date range,
Laytime shall commence when Vessel is all fast at Berth and shall terminate upon
disconnection of the cargo arms or hoses.
7.02 The following times ("Allowed Laytime") shall be deemed allowed to
Terminal Company. In the event that demurrage is incurred for Terminal's
account, time on demurrage shall be calculated after deducting the following
allowances from total laytime.
(a) The time allowed to Terminal Company for receiving Commodities from
or loading Commodities aboard each Vessel or for any Ship-to-Ship Transfer shall
be thirty-six (36) hours.
(b) If, at the time that the Vessel tenders its Notice of Readiness,
Terminal Company has not received an advance payment for marine services as
provided in Section 13.03 hereof, then all time which elapses between (i)
Terminal Company's receipt of Notice of Readiness and (ii) Terminal Company's
bank confirmation of receipt of said payment.
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(c) Time elapsing during the shifting of a Vessel from anchorage to
Berth, getting into Berth, or clearing Berth.
(d) Delay due to the Vessel's condition, including, without limitation,
breakdown of machinery or inability of the Vessel to discharge the Vessel's full
cargo within twenty-four (24) hours, or failure to maintain a minimum discharge
pressure 100 PSI throughout discharge.
(e) Interruptions or limitations to berthing, unberthing, discharging,
or loading due to circumstances beyond Terminal Company's control, including but
not limited to clearance by Canadian Coast Guard, sea conditions, and adverse
weather conditions.
(f) Interruptions to cargo discharge and/or loading operations while
the Vessel is taking on or discharging ballast or other conditions beyond the
Terminal's control.
(g) Time consumed awaiting the arrival of User's measurement
representatives and/or surveyors and time consumed while said representatives
complete their work including time consumed for any Insurance Gauges.
**********
(i) Any Laytime allowed and remaining under any applicable charter
party after the Vessel has completed the discharge of the Commodities
(reversible Laytime).
(j) Time consumed during a Commodity Transfer to a Vessel or Vessels
from one or more shore tanks operating in or below the Critical Zone for such
tank or tanks.
(k) In the event the Vessel has arrived outside the date range as
provided in Section 6.05, all times used awaiting Berth availability.
7.03 If demurrage is incurred for Terminal's account, as specified in
Section 7.02 above, the rate of demurrage to be paid by Terminal Company to User
shall be as set forth in User's charter party agreement or agreements. For
Vessels either owned or on time charter by the User, the appropriate rate of
demurrage shall be determined by (i) applying the Average Freight Rate
Assessment (AFRA) that is appropriate to the size of the Vessel concerned (as
published by the London Tanker Broker's Panel or any similar generally accepted
freight rate assessment, hereafter taking the place of AFRA) and is current on
the date of presentation of the Notice of Readiness. In no event shall
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Terminal Company be obligated to make any payment for demurrage which is greater
than the demurrage obligation of User to the Vessel's owner or operator.
ARTICLE 8
Berth Occupancy
8.01 The time any Vessel is deemed to occupy a Berth ("Berth
Occupancy") shall commence upon the User's Vessel becoming all fast at the Berth
and shall terminate when the Terminal lets go the Vessel's last line at the
Berth.
8.02 Vessels shall be allowed (Allowed Berth Occupancy) thirty-six (36)
hours for either discharging or loading, regardless of size. The above Allowed
Berth Occupancy shall be prorated in the case of part cargoes.
8.03 Should the Vessel at a Berth be nominated by the User to perform
both discharging and loading operations, without vacating the Berth then the
Vessel shall pay Terminal Company ********** for each hour the Vessel occupies
the Berth in excess of the Allowed Berth Occupancy ("Excess Berth Occupancy
Charge"). Excess Berth Occupancy shall be calculated from the time that
discharge has completed or 36 hours of Berth Occupancy has elapsed, whichever
first occurs, until the Vessel lets go her last line from the Berth. The User
may guarantee payment of the Excess Berth Occupancy.
8.04 If and when (through no fault of Terminal Company) Berth Occupancy
exceeds the Allowed Berth Occupancy referred to in Section 8.02 hereof to the
extent such excess time at the berth causes demurrage on vessels waiting to
berth, or delays other activities at the berth, the Vessel owner, shall pay
Terminal Company Excess Berth Occupancy for every hour (or part thereof) for
which the Berth Occupancy exceeds the Allowed Berth Occupancy. Such Excess Berth
Occupancy Charge shall be at a rate of **********.
8.05 Terminal Company and Vessel's Master shall consult prior to
commencement of discharging or loading to determine the estimated unloading or
loading time and the time required for the normal ballasting or deballasting.
Vessels ballasting at a Berth after discharge shall vacate the Berth after
taking on ballast not exceeding twenty-five (25%) percent of the SDWT. Upon
completion of loading, the Vessel shall vacate the Berth. In situations in which
Vessels are awaiting a Berth, Terminal Company shall be entitled (with the
concurrence of the ship's Master) to have Vessels vacate the Berth immediately
after completion of discharge. Bunkering and the loading of fresh water, stores
and provisions may take place during discharge or loading. At all times,
however, the safety of the Vessel and the mooring facilities shall
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be taken into consideration prior to performing any of the operations discussed
in this Section 8.05.
8.06 Terminal Company shall have the right to require that a Berth be
vacated, at owners expense, if any Vessel exceeds the Allowed Berth Occupancy
time established in Section 8.02 and 8.04 hereof, and, subject to considerations
of safety.
ARTICLE 9
Marine Service
9.01 Costs of all marine services, including but not limited to, dock
charges, statutory dues, agency fees, towage tariffs shall be borne by the
Vessel owner, but may be guaranteed by the User, at the rates applicable from
time to time, and such costs shall be paid in advance of berthing any Vessel in
accordance with the provisions of Section 13.03 below.
9.02 Pilotage to and from the Berth is compulsory. Pilotage from sea to
the anchorage may be compulsory depending upon the Vessel's characteristics and
anchorage location.
9.03 Tug assistance for mooring and unmooring of Vessels is compulsory.
9.04 Radio communications are via Sydney, Nova Scotia Radio Station
(VCO) or Halifax Radio Station (VCS). VHF radio telephone contact direct with
Terminal Company is available on marine Channel 7A.
9.05 User is to include in his charter party an agency clause allowing
him to chose the Vessel's agent while at the Terminal. User agrees to have the
Vessel appoint the agent nominated by Terminal Company; however, the User or
owner may employ a protective agent as well. The User shall advise Terminal
Company as to which other ship's agency is in its employ with the notice of
Vessel Nomination pursuant to Article 6 hereof.
9.06 Terminal Company shall have the right, at any time and from time
to time, to require User to shift its Vessels from one safe Berth to another or
to require User to remove the Vessel from any Berth assigned to it by Terminal
Company. Terminal Company shall pay or cause to be paid all expenses incurred as
a result of such shifting or removal of the Vessel from a Berth, and time
consumed in shifting or removal shall not count as part of the Berth Occupancy,
unless such shifting or removal is made necessary by some condition or
facilities of the Vessel or User or by circum-
-39-
stances which restrict or prevent discharging or loading so as not to permit
completion of such discharging or loading within the number of hours specified
in Section 8.02, in which case, User shall pay or cause to be paid all expenses
incurred as a result of such shifting or removal of a Vessel from Berth, and the
time so consumed shall be included as Berth Occupancy time and as additional
Allowed Laytime.
9.07 User shall assure via charter party clauses or other means that
all Vessels nominated pursuant to Article 6 hereof shall maintain the strictest
compliance with all fire, safety, environmental protection and other regulations
of Terminal Company, IMO (International Maritime Organization), and any Canadian
and Provincial governmental agency. Any fine, charge, or liability which results
from failure to comply with the requirements of this Section 9.07 shall be the
sole responsibility of User. In addition, should any Vessel fail to remedy any
non-compliance with such regulations after being advised of such non-compliance,
Terminal Company shall be authorized to refuse berthing and/or terminate the
loading or discharge until such non-compliance is remedied, or Terminal Company
may, at its sole discretion, order the Vessel to vacate the Berth. All time
thereby lost or cost thereby incurred shall be for the account of the User
and/or the owner of the Vessel.
9.08 Any and all charges whatsoever imposed by any third party,
including but not limited to any governmental agency, for inspection fees,
import duties, taxes and permits at the Terminal shall be the responsibility of
the User. In addition, although due from the owner/operator, User may guaranty
any charges attributable to the Vessel, including, without limitation, Excess
Berth Occupancy Charge or charges associated with or levied by pilots, tugs,
line handling boats, light and port duties, dock usage, line handlers and
agents.
ARTICLE 10
Measurement Standards for Quantity and Quality
10.01 Measurement of quantities of Commodities shall be made manually
or by means of Automatic Samplers in compliance with the appropriate legal and
Customs requirements and in accordance with the latest effective edition of API
and ASTM standards.and procedures and the appropriate ASTM-IP tables.
10.02 Volume Measurements.
(a) Volume measurements regarding all Commodity Transfers may be
conducted by an independent inspector (nominated by and paid
for by the User). If User fails to have an independent
inspector present, then the
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measurements taken by Terminal Company's representative shall
be conclusively deemed to be correct absent proof of fraud,
willful misconduct or gross negligence, the burden of such
proof being upon User. Measurement of quantities of
Commodities delivered to the Terminal, Commodities delivered
by the Terminal, or Commodities involved in Tank-to-Tank
Transfers shall be by gauging the quantities in the applicable
storage tanks at the Terminal immediately prior to and after
the Commodity Transfer.
(b) The User or its representatives may be present during the
measuring operations. If no witness is present, however, the
measurements carried out shall be considered as made by both
parties, and the User shall accept the figures submitted as
measured.
(c) All net volumes shall be computed in Barrels (to the nearest
Barrel).
(d) Volume adjustment to 60o F shall be in accordance with the
latest ASTM-IP Petroleum Measurement Tables for **********.
(e) Except as otherwise specifically agreed in writing between
Terminal Company and User, all Handling charges paid by User
(pursuant to these regulations or any agreement between User
and Terminal Company) shall be based Gross Standard Volume.
10.03 The establishment of quantities and qualities shall be carried
out in accordance with the following norms and principles:
(a) Tanks shall be calibrated for critical measurements as set
forth by API Standard 2550/ASTM Designation: D1220.
(b) If tanks are to be operated in irregular zones, such as
bottoms, the volume of such zones shall be established in
accordance with API Standard 653.
(c) (i) Gauge tables shall be computed strictly in accordance
with API Standard 2550/ASTM Designation: D1220; and
on the basis of field data obtained by the
recommended methods and procedures outlined in (a)
and (b) above.
(ii) Gauge tables shall be adjusted for the effect of
expansion and contraction of tank shells due to
liquid head.
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(d) Manual gauging, if performed, shall be in accordance with API
Standard 2545/ASTM Designation; D1086.
(e) Manual temperature determination, if performed, shall be in
accordance with API Chapter 17.1.7.3.
(f) Test for API Gravity shall be conducted on representative
samples of the measured volumes in accordance with ASTM
Designation: D1298/API Standard: 2547. Observed API Gravity
shall be reduced to 60o F in accordance with ASTM-IP Petroleum
measurement tables, Table 5A and Table 5B as applicable.
(g) Test procedures for determining S&W shall be conducted on
representative samples of the measured volume in accordance
with ASTM Designation: D473 and D4006 respectively.
10.04 Samples shall be drawn in accordance with ASTM Designation:
D4057, in order to measure characteristics of all shipments received from or
redelivered to User by Terminal Company. At the discretion of Terminal Company,
samples will be drawn from the Vessel's tanks after loading and prior to
discharge or the shore tanks prior to loading, as the case may be, or by
Automatic Samplers at the time of the Commodity Transfer. The samples taken
shall be sealed and kept at the User's disposal for a period of thirty (30)
days. In the event of a dispute regarding the Commodities, samples of the
Shipment under dispute shall, upon request by User, be retained for a longer
period to be agreed upon by Terminal Company and the User. Any dispute
concerning quality must be made known to Terminal Company within thirty (30)
days from the date the bill of lading is issued for the Shipment.
ARTICLE 11
Volume Measuring Procedures
11.01 The determination of quantities of Commodities shall be in accordance
with the following procedures:
(a) Quantities of Commodities transferred to Terminal tankage from
the Receiving Point shall be determined as follows:
(i) Opening tank level gauge measurements and
temperatures of the Commodities shall be taken prior
to unloading the Vessel.
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(ii) At the discretion of Terminal Company, a sample
representative of the Commodities shall be taken
either manually or through the use of an Automatic
Samplers.
(iii) Duplicate S&W and API Gravity determinations shall be
performed on the sample of the Commodities. The
average of the duplicate tests shall be used provided
that the results are within the tolerance limits
stipulated by the appropriate standard test.
(iv) Closing tank level gauge measurements and
temperatures of the Commodities shall be taken after
the tank has been isolated and the oil surface
becomes still.
(v) At Terminal Company's discretion, volume measurements
may be determined by use of a metering device meeting
A.P.I. Standards. Upon mutual agreement between Users
and Terminal Company, the use of radar gauging
equipment for quantity determination may be used in
lieu of manual gauging or metered determination. Such
agreement shall not be unreasonably withheld.
(vi) Gross Standard Volume shall be determined from the
above information in accordance with Article 10
hereof.
(vii) The above data shall be recorded and maintained in
Terminal Company's records in accordance with Article
12 hereof.
(viii) User, at User's sole cost and expense, may have a
measurement representative present at the time
Terminal Company receives User's Commodities.
(ix) User, at User's sole cost and expense, may instruct
Terminal Company or an independent petroleum
inspector, as the case may be, to perform an
Insurance Gauge. The procedures for this Insurance
Gauge shall be agreed prior to the arrival of the
Vessel involved.
(b) Quantities of Commodities transferred from one or more Storage
Tanks to the Delivery Point shall be determined as follows:
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(i) Opening tank level gauge measurements and
temperatures of the Commodities shall be taken prior
to loading the Vessel.
(ii) A sample representative of Commodities transferred
from one or more Storage Tanks shall be taken
manually or through the use of an Automatic Sampler.
(iii) Duplicate S&W and API Gravity determinations shall be
performed on the sample of the Commodities. The
average of the duplicate tests shall be used provided
that the results are within tolerance limits
stipulated by the appropriate standard test.
(iv) Closing tank level gauge measurements and
temperatures of the Commodity shall be taken after
the Storage Tank has been isolated and the oil
surface has become still.
(v) At Terminal Company discretion, volume measurements
may be determined by use of a metering device meeting
A.P.I. Standards. Upon mutual agreement between Users
and Terminal Company, the use of radar gauging
equipment for quantity determination may be used in
lieu of manual gauging or metered determination. Such
agreement shall not be unreasonably withheld.
(vi) Gross Standard Volume shall be determined from the
above information in accordance with Article 10
hereof.
(vii) User, at User's sole cost and expense, may have a
measurement representative present at the time
Terminal Company redelivers Commodities.
(viii) User, at User's sole cost and expense, may instruct
Terminal Company or an independent petroleum
inspector, as the case may be, to perform an
Insurance Gauge for the determination of pipeline
quantities. The procedures for this insurance gauge
shall be agreed prior to the arrival of the Vessel
involved.
(c) Measurement of Commodities involved in any Tank-to-Tank
Transfer shall be in accordance with Section 11.01(b) hereof,
where measurement and samples taken from the receiving tank or
tanks shall be the basis for quantity and quality
determinations.
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(d) Measurement of Commodities involved in any Dock-to-Dock
Transfer or Ship-to-Ship Transfer shall be determined by the
User's independent inspector in generally accordance with the
Sections 11.01(a) and 11.01(b) hereof, whereby measurements
and samples from the receiving Vessel shall be used as the
basis for quantity and quality determinations. In no event
shall Terminal Company be responsible for any loss of
Commodities resulting from or associated with any Dock-to-Dock
Transfer or Ship-to-Ship Transfer.
ARTICLE 12
Shipment Accounts
12.01 All accounts of User shall be kept in Barrels, GSV.
12.02 When a Shipment has been received, the independent inspector or
Terminal Company, as the case may be, shall prepare a notification of receipt
and other documentation necessary for the identification of the incoming
Shipment and, in particular, the User's name, the name of the Vessel, the Berth
Occupancy, the date of receipt, the Storage Tank number, the grade or grades of
Commodities received and the quantity and quality determined in accordance with
Article 10 and Article 11 hereof.
12.03 When a Shipment has been redelivered, the independent inspector
or Terminal Company, as the case may be, shall prepare a notification of
redelivery and other documentation necessary for the identification of the
redelivered Shipment and, in particular, the User's name, the name of the
Vessel, the Berth Occupancy, the date of receipt, the Storage Tank number, the
grade or grades of Commodities received and the quantity and quality of the
Commodities redelivered and the quantity and quality determined in accordance
with Article 10 and Article 11 hereof.
12.04 Required slipping documentation, including, but not limited to,
the Bill of Lading and Cargo Manifest shall be provided by representatives
appointed by the User; however, Terminal Company reserves the right to approve
all documents so provided, such approval shall not be unreasonably withheld, and
User agrees to provide Terminal Company one copy of each document.
12.05
(a) Terminal Company shall keep a current account for the User
showing the quantity and quality received and quantity and
quality redelivered by Terminal Company for each grade of the
Commodities. The quantity
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and quality received shall be credited to the User's account
while the quantity and quality redelivered shall be debited.
(b) Shipments partially but not completely received or redelivered
at the end of a month shall be considered as being made in
that month ended. A summary of the Shipment account of User
for each month shall be sent to User not later than the 15th
day of the month following.
(c) Terminal Company shall advise the User, in accordance with the
Following provisions, of the stock of Commodities held by
Terminal Company on the User's account, such stock holding to
be determined by reference to Terminal Company's stock
inventory. In the case of the complete evacuation of any
particular grade of Commodities, such advise shall be given to
the User as soon as possible after the loading of the User's
penultimate offtake Vessel, and in all other cases, at
intervals of not less than one month.
12.06 Any Bill of Lading accompanying a Shipment shall be subject to
the provisions of the "International Convention for the Unification of Certain
Rules relating to Bills of Lading (Brussels, August 1924)", which provisions
shall be deemed to be incorporated herein, and nothing herein shall be deemed a
surrender by Terminal Company of any of its rights or immunities or an increase
of any of its responsibilities or liabilities under said provisions. If any term
of any Bill of Lading is repugnant to said provisions to any extent, such term
shall be void to that extent but no further.
12.07 In the event that the Commodities are sold or title otherwise
transferred by the User to another party while the Commodities are under the
custody of Terminal Company, User agrees to make the then current Terminal
Regulations of the Terminal Company a condition of the transfer and the party
receiving title shall be encumbered by the terms contained herein.
ARTICLE 13
Invoices and Payments
13.01 Payments for Demurrage. Payment for any undisputed Vessel
demurrage, pursuant to Article 7, shall be made by Terminal Company to the User
within ********** after presentation of invoices.
13.02 Payment for Excess Berth Occupancy. Payment of any Excess Berth
Occupancy Charge pursuant to Article 8 of these Regulations, shall be made by
the
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Vessel's owner/operator, to Terminal Company, net upon presentation of invoices.
In the event the User guarantees payment of the Excess Berth Occupancy Charge,
payment shall be made by User net upon receipt of the corresponding invoice.
13.03 Payment for Marine Services. Payment for any marine services,
pursuant to Article 9 of these Regulations, to be secured by Terminal Company
for the Vessel shall be paid by the Vessel owner, but may be guaranteed by the
User, and must be received by Terminal Company prior to Terminal Company's
allowing the Vessel to proceed to Berth.
13.04 Payments for Prevention or Mitigation of Oil Pollution Damage.
Payment for any prevention or mitigation of oil pollution damage or pollution
damage paid by Terminal Company on behalf of the User, pursuant to Article 15,
shall be made by the User to Terminal Company prior to release of the Vessel.
All time thereby lost shall be for User's account.
13.05 Payments for Other Damages. Payments for any other costs or
damages provided for by the Agreement (including these Regulations), but for
which payment provisions are not set forth therein, shall be paid by the User to
Terminal Company, or vice versa, as the case may be, net upon presentation of
invoices.
13.06 Product Lien. Terminal Company shall have, and is hereby granted,
an express contractual lien and security interest (to the extent of the charges
set forth herein) in and upon all Commodities at any time stored or Handled
hereunder for User to secure payment of all charges and amounts payable by User
to Terminal Company under these Terminal Regulations or under the Agreement
between Terminal Company and User. Said lien and security interest shall not be
exclusive, but shall be cumulative of and in addition to all other legal and/or
equitable liens and/or security interests, rights and remedies that Terminal
Company may have, either at law or in equity. If User fails to make any payment
required to be made hereunder or under the terms of any other agreement between
Terminal Company and User, Terminal Company shall have the right to foreclose
its security interest.
ARTICLE 14
Oil Pollution
14.01 The User or its designee shall ascertain via charter party
clauses or other means that all Vessels delivering or receiving Commodities at
the Terminal are maintained, operated, and manned consistent with the highest
international standards and are covered under TOVALOP or a mutually acceptable
substitute thereof The User
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shall be a participant in CRISTAL or a mutually acceptable substitute thereof
The User shall, prior to Vessel's acceptance by Terminal Company of any Vessel
Nomination, advise Terminal Company in written form, that these conditions have
been met.
14.02
(a) If and when an escape or discharge of Commodities occurs from
a Vessel at or in the vicinity of the Terminal, and causes or
threatens to cause pollution damage, Terminal Company or such
party as Terminal Company may designate, at its option upon
notice by Terminal Company to the User, the User's agent and
the Master of the Vessel, may undertake such measures as are
reasonably necessary to prevent or mitigate such damage,
unless the User, its agent or the Master of the Vessel
promptly undertakes the same to the satisfaction of Terminal
Company and any governmental authorities having jurisdiction.
Terminal Company shall keep the User, its agent and/or the
Master of the Vessel advised of the nature and results of
measures taken by Terminal Company or its designee and, if
time permits, the nature of measures intended to be taken. The
party responsible for such escape or discharge shall bear the
costs and liabilities of the response and clean up.
(b) The Vessel shall not be permitted to discharge dirty ballast
or ballast water contained in cargo compartments (whether
clean or not) in or near the coastal waters of the Strait of
Canso.
(c) The provisions of ties Article are not in derogation of any
other rights which Terminal Company and User may have under
any agreement between the parties or may otherwise have or
acquire by law or any international convention.
(d) Terminal Company shall indemnify, defend, and hold harmless
User from any cost, expense or liability related to the
current ground or groundwater contamination caused by
Petroleum products in the Terminal Facility. Terminal Company
shall take all necessary action at its cost, to protect Users
Commodities from any encumbrances or lien as a result of the
Terminal failing to clean up such contaminated ground areas.
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ARTICLE 15
Safety Regulations
15.01 Terminal Company, the User and all ship owners and their agents
shall follow good safety practices, including, in particular, but not limited
to, those described in the latest edition of the "International Oil Tanks and
Terminal Safety Guide (IOTTSG)" as issued by the Institute of Petroleum.
ARTICLE 16
Insurance
16.01 Commodity Insurance. User, at User's sole cost, expense and
option, shall be responsible for carrying all-risk casualty insurance on all
Commodities delivered to the Terminal.
16.02 Waiver of Subrogation. User shall furnish Terminal Company a
waiver of the rights of subrogation and recovery and recoupment by each
underwriter on such all-risk casualty insurance required pursuant to Clause
16.01 and all Terminal Company employees, agents, invitees, servants,
subsidiaries, affiliates, partners, joint venture partners, contractors,
subcontractors and their affiliates, agents, employees, partners, joint venture
partners, invitees and servants with respect to all such insurance.
16.03 Vessel Insurance. User shall carry, or require that the owner
carry, on all Vessels utilizing the Terminal the following insurance:
(a) Hull and Machinery (including Collision Liability) insurance
according to the terms and conditions of the American
Institute Hull Clauses on all Vessels with a limit equal to or
greater than the fair market value of each such Vessel
(Charterer's and/or Owner's Limitation Clause to be deleted).
(b) Protection and Indemnity Insurance, including a contractual
liability extension, on all Vessels with a limit applicable to
each such Vessel of $100,000,000 or the fair market value of
the Vessel, whichever is greater (Charterer's and/or Owner's
Limitation Clause to be deleted).
(c) In respect to all chartered Vessels, Marine
Operator's/Charterer's Legal Liability Insurance with limits
of not less than $50,000,000.
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16.04 Certificates. Prior to the delivery or receipt of Commodities by
the Terminal, Terminal Company may request User to furnish, or cause to be
furnished thereto, certified copies of each such insurance policy complete with
all endorsements affecting such policies and satisfactory assurances that such
policies will not be canceled or materially altered unless at least ten (10)
days prior written notice of each such cancellation or material change is
provided to Terminal Company and substitute policies will be immediately
attained; provided, however, that Terminal Company may, at its sole option,
accept certificates of insurance in lieu of any or all of such certified copies
of policies.
ARTICLE 17
Auditing
17.00 The User, at its cost, may obtain an audit by an independent
auditing firm selected by it to determine whether the amounts charged the User
are charged in accordance with these Terminal Regulations and Agreement.
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