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Exhibit 10.16
"Pages where confidential treatment has been requested are marked 'Confidential
Treatment Requested.' The redacted material has been separately filed with the
Commission, and the appropriate section has been marked at the appropriate
place and in the margin with a star (*)."
FIRST AMENDED AND RESTATED FEEDSTOCK AND
REFINERY PRODUCT MASTER SERVICES AGREEMENT
This FIRST AMENDED AND RESTATED FEEDSTOCK AND REFINERY PRODUCT MASTER
SERVICES AGREEMENT (the "Agreement") is made and entered into by and between
Chevron Products Company, a Division of Chevron U.S.A. Inc., a Pennsylvania
corporation (hereinafter referred to as "CPC") and Dynegy Midstream Services,
Limited Partnership, a Delaware limited partnership (hereinafter referred to
as "DMS") (formerly known as Warren Petroleum Company, Limited Partnership).
WHEREAS, effective September 1, 1996, Chevron U.S.A. Inc. ("CUSA") and
NGC Corporation ("NGC") entered into certain agreements (the "Merger
Agreements") pursuant to which CUSA contributed certain gas gathering,
processing, and other midstream assets and related liabilities of CUSA's
Warren Petroleum Company division ("Warren") and natural gas business unit
division to a corporation to be formed which NGC would then be merged into
(the "Merger");
WHEREAS, immediately subsequent to the Merger, the gas gathering,
processing and other midstream assets and related liabilities of Warren were
transferred to DMS;
WHEREAS, Warren previously provided certain services to CPC and CPC
provided certain services to Warren, in connection with (a) Warren's sale to
CPC of Feedstock and (b) Warren's purchase from CPC of Refinery Products and
certain Offspec Products produced at CPC's refineries (collectively, the
"Refineries", and each, a "Refinery");
WHEREAS, contemporaneously with the consummation of the Merger
Agreements, CPC and DMS entered into certain Feedstock Sale and Refinery
Product Purchase Agreements with each of the Refineries (as such Agreements
may be amended from time to time, the "Feedstock Agreements"), pursuant to
which DMS sells Feedstock to CPC and DMS purchases Refinery Products and
certain Offspec Refinery Products produced by the Refineries;
WHEREAS, CPC desires DMS to perform certain services described on
EXHIBITS A-1, A-2, A-3 AND A-4 attached hereto ("DMS Services"), and DMS
desires CPC to perform certain services described on EXHIBITS B-1, B-1A AND
B-2 attached hereto ("CPC Services"; DMS Services and CPC Services being
collectively referred to as "Services");
WHEREAS, CPC desires that DMS maintain the same level of service that
was previously provided to it by Warren and DMS desires to continue such
level of service; and
WHEREAS, DMS and CPC desire to perform such Services for each other in
accordance with and subject to the terms of this Agreement;
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WHEREAS, DMS and CPC desire to enter into this Agreement which will
supercede and replace in its entirety, effective as of July 1, 1999, that
certain Feedstock and Refinery Product Master Services Agreement dated
effective September 1, 1996, entered into between DMS and CPC.
NOW, THEREFORE, in consideration of the premises and for the mutual
benefit of the Parties, as well as for other good and valuable consideration,
DMS and CPC agree as follows:
ARTICLE 1
DEFINITIONS
1.1 SPECIFIC DEFINITIONS. As used herein, the following terms shall
have the following meanings:
"AAR" means American Association of Railroads.
"AGREEMENT" means this Agreement, including all Exhibits and the
Schedule attached hereto and all amendments hereof that may be made from time
to time.
"AFFILIATE" means any Person that directly or indirectly through one or
more intermediaries, controls or is controlled by or is under common control
with the Person specified. The term "control" (including the terms
"controlled by" or "under common control with") means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of a Person, whether through ownership, by contract,
or otherwise. Any Person shall be deemed to be an Affiliate of any specified
Person if such Person owns fifty percent (50%) or more of the voting
securities of the specified Person, if the specified Person owns fifty
percent (50%) or more of the voting securities of such Person, or if fifty
percent (50%) or more of the voting securities of the specified Person and
such Person are under common control.
"BANKRUPTCY EVENT" means the occurrence of one or more of the following
events with respect to a Party: (A) the entry of a decree or order for relief
against a Party by a court of competent jurisdiction in any involuntary case
brought against a Party under any bankruptcy, insolvency or other similar law
(collectively, "Debtor Relief Laws") generally affecting the rights of
creditors and relief of debtors now or hereafter in effect; (B) the
appointment of a receiver, liquidator, assignee, custodian, trustee,
sequestrator or other similar agent under applicable Debtor Relief Laws for a
Party or for any substantial part of its assets or property; (C) the ordering
of the winding up or liquidation of a Party's affairs; (D) the filing of a
petition in any such involuntary bankruptcy case, which petition remains
undismissed for a period of 180 Days or which is not dismissed or suspended
pursuant to Section 305 of the Federal Bankruptcy Code (or any corresponding
provision of any future United States bankruptcy law); (E) the commencement
by a Party of a voluntary case under any applicable Debtor Relief Law now or
hereafter in effect; (F) the consent by a Party to the entry of an order for
relief in an involuntary case under any such law or to the appointment of or
the taking of possession by a receiver,
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liquidator, assignee, trustee, custodian, sequestrator or other similar agent
under any applicable Debtor Relief Laws for a Party or for any substantial
part of its assets or property; or (G) the making by a Party of any general
assignment for the benefit of its creditors.
"BASE RATE" means the lesser of (i) two percent (2%) above the per
annum rate of interest announced from time to time as the "prime rate" for
commercial loans by First National Bank of Chicago, as such "prime rate" may
change from time to time, or (ii) the maximum applicable non-usurious rate of
interest.
"BOL" means CPC's Bill of Lading System, including all enhancements and
replacements thereof.
"BUSINESS DAY" means a Day on which Federal Reserve member banks in New
York City are open for business.
"BUSINESS GROUP" means LPG Cars assigned from time to time to CPC or
DMS services depending on the actual facility or geographical area the
services are provided, all in accordance with the methodology set forth in
Exhibit B-1a attached hereto and made a part hereof.
"CLM" means Car Location Message.
"CPC CARS" means the LPG Cars and all other rail cars owned or Leased
by CPC from time to time.
"CPC DATABASES" means BOL, CPS, RAS and Railtrac, including all
enhancements and replacements of any of them.
"CPS" means Chevron Products Systems, including all enhancements and
replacements thereof.
"DAY" OR "DAILY" means a twenty-four (24) hour period commencing at
12:01 a.m. local time and extending until 12:01 a.m. local time on the
following Day.
"DISPOSITION" means the assignment, sale, transfer, or other
disposition of a Refinery to a Transferee.
"DOT" means the United States Department of Transportation and any
successor agency thereof.
"EFFECTIVE DATE" means September 1, 1996.
"EMERGENCY USE RIGHTS" means CPC's rights, exercisable only in
situations reasonably believed by CPC to be emergencies (excluding planned
Refinery turnarounds), to temporarily use LPG Cars that are within the
Refinery premises in accordance with the terms of this Agreement.
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"FEEDSTOCK" shall have the meaning given such term in the Feedstock
Agreement for the applicable Refinery.
"FEEDSTOCK Products" means Feedstock and Offspec Feedstock.
"FIS" means TP&S's Freight Information Services group.
"FORCE MAJEURE" shall have the meaning given such term in Section 10.2.
"GAAP" means generally accepted accounting principles, as in effect
from time to time.
"GALLON" means the unit volume used for the purpose of measurement of
liquid. One (1) U.S. liquid gallon contains two hundred thirty-one (231)
cubic inches when the liquid is at a temperature of sixty degrees Fahrenheit
(60DEG.F) and at the vapor pressure of the liquid being measured.
"ISOBUTANE" shall have the meaning given such term in the Feedstock
Agreement for the applicable Refinery.
"ISOMERIZATION AGREEMENT" means the Isomerization Agreement dated as
of July 14, 1995 between Warren and Lone Star Gas Liquids Processing, Inc.
"LEASE" means, with respect to a rail car (including, but not limited
to, the LPG Cars), a time charter arrangement between the owner of the rail
car and the Person entitled to use such rail car, a lease in which the owner
of the rail car retains legal and beneficial title to such rail car, or any
other contractual arrangement of similar effect.
"LPG CARS" means pressure rail cars assigned from time to time to
various CPC and DMS Business Groups, excluding the rail cars assigned to the
Pascagoula Refinery.
"MIXED BUTANES" shall have the meaning given such term in the Feedstock
Agreement for the applicable Refinery.
"MONTH" OR "MONTHLY" means a period commencing at 12:01 a.m. local time
on the first Day of a calendar month and extending until 12:01 a.m. local
time on the first Day of the next succeeding calendar month.
"DMS LOCATIONS" means locations where DMS personnel have access,
through computer terminals or otherwise, to any of the CPC Databases.
"OFFSPEC FEEDSTOCK" shall have the meaning given such term in the
Feedstock Agreement for the applicable Refinery.
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"OFFSPEC REFINERY PRODUCTS" and "TYPE A OFFSPEC REFINERY PRODUCTS"
shall have the meanings given such terms in the Feedstock Agreement for the
applicable Refinery.
"OPERATING COMMITTEE" shall have the meaning given such term in Section
8.1.
"PARTY" means individually either CPC or DMS (including their
respective successors and permitted assigns); collectively, the "PARTIES."
"PERSON" means any individual, corporation, partnership, limited
liability company, association, joint venture, trust, or other organization
of any nature or kind.
"PRODUCTS" means Feedstock, Offspec Feedstock, Refinery Products and
Type A Offspec Refinery Products.
"RAILTRAC" means CPC's Rail Car Management System, including all
enhancements and replacements thereof
"RAS" means CPC's Rail Car Accounting System, including all
enhancements and replacements thereof.
"REFINERY" and "REFINERIES" shall have the meanings set forth in the
recitals to this Agreement and shall refer to the Refineries in the following
locations: El Paso, Texas; El Segundo, California; Hawaii; Pascagoula,
Mississippi; Richmond, California; and Salt Lake City, Utah.
"REFINERY PRODUCTS" shall have the meaning given such term in the
Feedstock Agreements for the applicable Refinery.
"REFINERY BUTANE SERVICE" means that period of time when a LPG Car is
assigned to a Refinery Business Group in accordance with the methodology set
forth in Exhibit B-1a, excluding the period of time when such LPG Cars are
being used to temporarily store or transport Propane.
"RELAM" refers to a third Person, unaffiliated with either Party, that
provides mileage credit auditing services.
"T&F COSTS" means all Transportation Costs and all costs and expenses
reasonably incurred in connection with the receipt, fractionation and sale or
resale of Refinery Products received by DMS from CPC. It is understood and
agreed that any fractionation costs that are incurred at a facility owned
and/or controlled by DMS or any of its Affiliates shall not exceed the lesser
of (i) the fair market value for such fractionation services or (ii) the fees
charged by DMS or its Affiliates to CUSA in connection with the fractionation
of natural gas liquids (other than Refinery Products) owned by CUSA and
purchased by DMS.
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'Confidential Treatment Requested'
"TP&S" shall have the meaning given such term in Section 8.1.
"THIRD PARTY LPG" means liquefied petroleum gas transported by DMS for
its own account or the account of its Affiliates or for third Persons not
Affiliated with CPC.
"TRANSFEREE" means a third Person who acquires a Refinery pursuant to a
Disposition, and who is not an Affiliate of either Party.
"TRANSPORTATION COSTS" means all costs and expenses reasonably incurred
in connection with the transportation of Feedstock(s) and/or Refinery
Product(s) hereunder, including, without limitation, rail car, barges and
truck costs, Feedstock and/or Refinery Product losses that occur during
transportation for reasons other than the negligence or willful misconduct of
DMS and all costs and expenses reasonably incurred in loading, unloading,
transporting, terminaling, storing (if required) and handling such
Feedstock(s) and/or Refinery Products. It is understood and agreed that
Transportation Costs shall not include any portion of DMS's general and
administrative costs and expenses, but will include amounts paid by DMS to
CPC in connection with the LPG Cars owned or Leased by CPC but operated by
DMS in connection with the Services rendered by DMS to CPC pursuant to this
Agreement. With respect to barges and trucks owned by DMS or its Affiliates,
the applicable Transportation Costs shall not exceed the fair market value of
the use of such barges and trucks in transporting Feedstocks and/or Refinery
Products hereunder.
"UMLER" means the Uniform Machine Language Equipment Register, a
database provided by the AAR in connection with the monitoring of rail car
mileage credit rating records.
"YEAR" means a period of twelve (12) consecutive months commencing
from the Effective Date.
1.2 OTHER DEFINITIONS. Other terms may be defined elsewhere in the text
of this Agreement (including but not limited to the Exhibits hereto) and
shall have the meanings indicated throughout this Agreement.
ARTICLE 2
TERM
2.1 GENERALLY. Unless otherwise provided herein, this Agreement shall
* remain in full force and effect for a period ending [REDACTED] and shall
continue from Year to Year thereafter unless terminated by either Party
hereto at the end of such period or any Yearly anniversary thereafter by
giving the other Party at least ninety (90) Days, but not more than one
hundred and eighty (180) Days, advance written notice of its intention to so
terminate. Notwithstanding the foregoing, it is understood and agreed that
shorter terms may be applicable to certain Services described in Exhibit A
and Exhibit B (as such terms are hereafter defined), as more particularly set
forth in such Exhibits.
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2.2 TERMINATION. Notwithstanding Section 2.1 above, this Agreement
may be terminated as follows:
(a) By the non-defaulting Party, upon thirty (30) Days written
notice to the other Party, after it has been determined through the alternative
dispute resolution procedures of Article 11 that a Material Default has occurred
in the Performance of a Party's obligations hereunder (it being understood that,
for purposes of the foregoing, "Material Default" shall mean that the
arbitrators have determined that (i) in consequence of such Default, the
objectives of this Agreement (as expressed in the Master Alliance Agreement of
even date herewith by and among CUSA, CPC, DMS and others) are not being met and
(ii) the defaulting Party failed to take the steps necessary to accomplish such
objectives);
(b) By a Party, in the event the other Party is dissolved (unless
the successor to such dissolved Party or its assets is an Affiliate of CPC or
DMS);
(c) By a Party, if a Bankruptcy Event occurs with respect to the
other Party; or
(d) By either Party, with respect to each Refinery, if either Party
has terminated the Feedstock Agreement applicable to such Refinery in accordance
with the terms and provisions thereof.
In the event the Refinery is sold to a third Person not affiliated with CPC, the
reference to the Master Alliance Agreement set forth in Section 2.2(a), above,
shall be inapplicable.
2.3 CLOSURE OF REFINERY. It is agreed and understood that CPC, in its sole
discretion, may permanently close any Refinery at any time during the term of
this Agreement. Upon such permanent closure, CPC and DMS shall be relieved of
any further obligations under this Agreement with regard to such Refinery, if
CPC has provided DMS with written notice of such closure at least one hundred
and eighty (180) Days prior to the date of such closure.
2.4 PARTIAL TERMINATION OF AGREEMENT. Except as otherwise provided in this
Agreement, this Agreement shall terminate as to any Refinery (a) that has
terminated its Feedstock Agreement with DMS in accordance with the terms and
provisions thereof or (b) that has been the subject of a Disposition. Except as
otherwise provided in this Agreement, the Parties' obligations hereunder shall
terminate as to the Refinery affected by such termination or Disposition subject
to the provisions of Sections 2.5, (i) in the case of termination of its
Feedstock Agreement with a Refinery, upon the effective date of such termination
and (ii) in the case of a Disposition, upon the consummation of such
Disposition.
2.5 POST-TERMINATION ITEMS. Upon the termination of this Agreement, any
monies due and owing either Party shall be paid to the other Party pursuant to
the terms hereof and any refunds due either Party shall be made at the earliest
possible time, and, in any event, no later
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than sixty (60) Days after the expiration or termination of this Agreement.
All audit rights shall survive for the period prescribed by Section 7.2(g).
2.6 REMEDIES CUMULATIVE. Termination of this Agreement hereunder shall
be cumulative of any other rights or remedies that the terminating Party may
have in connection with such termination (subject to any limitations set
forth herein), including, but not limited to, damages and injunctive relief.
ARTICLE 3
SERVICES
3.1 AGREEMENT TO PROVIDE SERVICES.
(a) DMS shall perform the DMS Services described on Exhibits A-1
through A-4 attached hereto (such Exhibits being collectively sometimes
hereinafter referred to as "Exhibit A"), and CPC shall perform the CPC
Services described on Exhibits B-1 and B-2 attached hereto (such Exhibits,
together with Exhibit B-1a, being collectively sometimes hereinafter referred
to as "Exhibit B"), all such Services to be provided subject to and in
accordance with the terms and provisions of this Agreement.
(b) To request Services not generally described in Exhibit A or
Exhibit B, the Party desiring such additional services ("Non-Exhibit
Services") shall complete a Request for Services (the "Request for Services"
or "RFS"), substantially in the form attached hereto as "Exhibit C,"
describing with specificity the scope and type of Non-Exhibit Services to be
performed, and the fee to be paid for them. The RFS shall be binding when
signed by both Parties. If there is a conflict between the terms of this
Agreement and the terms of the RFS, the terms of the RFS shall control.
(c) In connection with the rendering of Services that relate to
transportation (including, without limitation, the transportation of
Products), it is understood and agreed that the Party providing such Services
shall provide rail car, motor vehicle or other transportation equipment that
(i) complies with the requirements of all applicable federal and state
statutes, all applicable local government ordinances and all applicable
rules, regulations orders and other mandatory directives of any applicable
federal, state or local tribunal or agency (including but not limited to
those of the U.S. Department of Transportation) and (ii) is safe, complete
and efficient for the performance of such Party's obligations under this
Agreement.
3.2 RELATIONSHIP BETWEEN THE PARTIES.
(a) The relationship between the Parties is purely contractual.
Nothing set forth herein shall constitute, or be construed as creating, an
employment relationship, a partnership, a joint venture, a relationship of
lessor and lessee or bailor and bailee, or any other kind of relationship or
association between the Parties. Except as otherwise expressly provided
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herein, neither Party hereto has any authority, expressed or implied, to bind
or to incur liabilities on behalf or in the name of, the other Party.
(b) All Services to be provided by either Party under this
Agreement may be furnished by any officer, employee or contractor of such
Party. Each Party shall devote such time in providing its respective Services
hereunder as is reasonably necessary to fully provide the same. Each Party
shall use qualified and properly trained personnel as are necessary to
perform the Services in accordance with the terms of this Agreement and in
compliance with applicable law.
(c) The Parties agree to cooperate with each other in
effectuating the purposes of this Agreement. Without limiting the generality
of the foregoing, (i) the Parties shall promptly notify each other of any
matter, or the occurrence of any event, which matter or event could
reasonably be expected to materially and adversely affect the Services
provided hereunder and (ii) the Party for whom Services are being provided
shall give the Party providing Services all information necessary for such
Party to perform the Services required of it under this Agreement.
3.3 LICENSE FOR DMS USE OF CPC SOFTWARE AND DATABASES.
The Parties acknowledge that performance of the DMS Services will
require CPC to give DMS limited access to, and a limited right to use, the
CPC Databases so that DMS can perform its obligations and exercise its rights
under this Agreement. Accordingly, CPC does hereby grant DMS a non-exclusive
license for such access and use in respect of the CPC Databases for the term
of this Agreement, subject in all respects to the terms of this Section 3.3
and the other terms and conditions of this Agreement. The rights granted
herein to DMS pertaining to the CPC Databases are subject to the terms and
provisions of Exhibit D attached hereto and made a part hereof which sets
forth the conditions of DMS's access to and right to use the CPC Databases.
Without limiting or modifying the generality of the foregoing, DMS's access
to the CPC Databases shall also be limited in accordance with the "Other
Provisions" section of Exhibit B-1.
3.4 AUTHORIZATION OF DMS'S USE AND OPERATION OF CPC RAIL CARS; GRANT OF
OPERATING RIGHTS. The Parties acknowledge that the performance of the DMS
Services will (i) require CPC to give DMS the rights to use, operate,
schedule, dispatch and generally control the LPG Cars in accordance with and
subject to the terms of this Agreement (such rights to be referred to as the
"Operating Rights"), (ii) require the Parties to designate, from time to time
and for the purposes hereinafter set forth, such LPG Cars as being assigned
to various CPC or DMS Business Groups, with such designations to vary from
time to time according to the use of such LPG Cars and (iii) require the
Parties to allocate depreciation, operating costs and other costs and
expenses among the LPG Cars generally and between Business Groups, depending
on the relevant business circumstances. Accordingly, in connection with the
foregoing and related matters, the Parties agree as follows:
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(a) CPC hereby assigns the Operating Rights to DMS, subject to
(i) the terms and conditions of all Leases applicable to the LPG Cars, (ii)
minor encumbrances that, individually and in the aggregate, do not and will
not materially affect DMS's use of the Operating Rights, (iii) CPC's right,
exercisable in its sole discretion, to use LPG Cars while situated on
Refinery premises at any time and (iv) the terms and conditions of this
Agreement, including, but not limited to, CPC's Emergency Use Rights (the
matters in clauses (i) , (ii), (iii) and (iv) being herein referred to as the
"Permitted Encumbrances");
(b) the Parties, in consultation with the Operating Committee,
shall designate the LPG Cars as assigned to various Business Groups, and
shall allocate depreciation, operating costs and other costs and expenses
among the LPG Cars generally and among Business Groups, in accordance with
and subject to the terms of Exhibit B-1 and Exhibit B-1a, respectively, to
which reference is made for all relevant purposes hereunder;
(c) the DMS Services to be provided in connection with this grant
of the Operating Rights, together with the fees to be paid for such DMS
Services and all other pertinent information with respect thereto, are set
forth in Exhibits A-1 through A-4, to which reference is made for all
relevant purposes hereunder;
(d) the CPC Services to be provided in connection with the LPG
Cars, together with the fees to be paid for such CPC Services and all other
pertinent information with respect thereto, are set forth in Exhibits B-1,
B-1a and B-2, to which reference is made for all relevant purposes hereunder;
(e) CPC may exercise its Emergency Use Rights at any time by
giving DMS oral notice regarding the existence of an emergency, and if the
LPG Cars situated on Refinery premises are insufficient to handle such
emergency, DMS shall assist CPC in securing additional LPG Cars. In the event
CPC exercises its Emergency Use Rights, (i) DMS's obligations under the
applicable Feedstock Agreements shall be suspended insofar as DMS's ability
to perform such obligations are materially and adversely affected by the
exercise of CPC's Emergency Use Rights and (ii) CPC shall reimburse DMS for
all reasonable costs, expenses and penalties incurred by DMS in connection
with, arising out of, or directly resulting from CPC's exercise of such
Emergency Use Rights;
(f) CPC represents, warrants and covenants as follows that:
(i) (A) with respect to LPG Cars that CPC Leases, CPC has or
will have the right to transfer the Operating Rights to DMS in accordance
with the terms of this Agreement, subject to any applicable third Person
consents required under the Leases; (B) with respect to LPG Cars that CPC
owns, it will (1) maintain and defend its right, title and interest in such
LPG Cars, subject to the Permitted Encumbrances, subject further to CPC's
right to contest in good faith and by appropriate means any claims by third
Persons affecting CPC's right, title and interest in such LPG Cars, and (2)
not assign any interest in such LPG Cars except as provided in Section 12.3,
and (C) with respect to LPG Cars that CPC Leases, it will (1) timely
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pay all amounts due from CPC under the Leases applicable to the LPG Cars and
otherwise comply with such Leases in all material respects, (2) maintain such
Leases in full force and effect, the foregoing being subject only to CPC's
right to contest in good faith and by appropriate means any disputes arising
under such Leases and (3) not assign any of its interest under the Leases
except as provided in Section 12.3; and
(ii) it will exercise every reasonable effort to ensure that
each LPG Car arriving or departing from any Refinery shall be properly coded to
reflect the current assignment of such LPG Car to a valid Business Group;
(iii) it will exercise every reasonable effort to ensure
that each LPG Car departing from any Refinery shall be properly marked and
stenciled in accordance with all applicable laws, rules and regulations;
(iv) it will exercise every reasonable effort to ensure
that each LPG Car within the Refinery premises that is used by CPC for
Refinery purposes shall be properly coded to reflect a valid Business Group
for that refinery; and
(v) EXCEPT AS EXPLICITLY SET FORTH IN THIS SECTION 3.4(F),
THERE ARE NO OTHER WARRANTIES OF ANY KIND WHATSOEVER, EITHER EXPRESS OR
IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF FITNESS FOR A
PARTICULAR PURPOSE, MERCHANTABILITY, CONFORMITY TO MODELS OR SAMPLES, OR
AGAINST INFRINGEMENT OF ANY PATENT, TRADEMARK, COPYRIGHT OR OTHERWISE, AND
ALL SUCH WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED BY CPC AND EXCLUDED FROM
THIS AGREEMENT.
(g) DMS represents, warrants and covenants as follows
that:
(i) it has or, by the Effective Date, will have all
material governmental consents, licenses and approvals necessary to exercise
the Operating Rights and generally to perform Services using the LPG Cars in
accordance with the applicable terms and conditions of this Agreement;
(ii) it will (A) maintain its right, title and
interest in the Operating Rights, subject to the terms of this Agreement and
subject further to DMS's right to contest in good faith and by appropriate
means any claims by third Persons affecting DMS's right, title and interest
in the Operating Rights, (B) COMPLY IN ALL MATERIAL RESPECTS WITH THE
APPLICABLE TERMS OF LEASES APPLICABLE TO THE LPG CARS AND INDEMNIFY AND HOLD
CPC HARMLESS FROM AND AGAINST ALL COSTS, LIABILITIES AND EXPENSES ARISING OUT
OF, OR IN ANY WAY ASSOCIATED WITH, DMS'S USE OF ANY LPG CAR FOR PURPOSES
OTHER THAN THOSE CONTEMPLATED BY THE APPLICABLE LEASE, INCLUDING BUT NOT
LIMITED TO CLEANING AND INSPECTION COSTS AND ADDITIONAL RENTAL FEES FOR SUCH
LPG CAR AND/OR FOR OTHER RAIL CARS OR OTHER EQUIPMENT REQUIRED TO BE LEASED OR
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PURCHASED AS A RESULT OF SUCH USE BY DMS and (C) not assign any of its interest
in the Operating Rights except as provided in Section 12.3, or as provided in
any applicable Lease; and
(iii) it will exercise every reasonable effort to ensure that
each LPG Car arriving or departing from a location other than a Refinery shall
be properly coded to reflect a valid Business Group for that location.
(h) (i) This Section 3.4(h) establishes the term of the Operating Rights
granted by CPC to DMS hereunder and the respective rights and obligations of the
Parties regarding the LPG Cars upon the termination of such Operating Rights.
(ii) The Operating Rights with respect to all LPG Cars, other than
the DMS LPG Cars (hereinafter defined), shall terminate and revert to CPC at
the end of the Primary Term (hereinafter defined). Notwithstanding the
foregoing, CPC shall transfer the DMS LPG Cars to DMS in accordance with the
terms and provisions of this Section 3.4(h). "DMS LPG Cars" means a number of
LPG Cars equal to the number of LPG Cars, averaged over the twelve (12) Month
period ending the Month before the Month in which the Primary Term ends,
engaged by DMS in carrying Third Party LPG for itself or for DMS customers
other than CPC (such activity being hereinafter referred to as "DMS
Third-Person Carriage") during such twelve (12) Month period. "Primary Term"
shall mean the period beginning with the Effective Date and ending August 31,
2006, including any extensions to this Agreement as provided for in Section
2.1 above and/or as mutually agreed to in writing by the Parties.
(iii) If DMS terminates this Agreement before the end of the
Primary Term in accordance with Section 2.2 because of CPC's Material
Default, CPC's dissolution (subject, however, to the provisions of Section
2.2(b)) or the occurrence of a Bankruptcy Event with respect to CPC, then:
(1) DMS's Operating Rights shall terminate and revert to CPC
as to a number of LPG Cars equal to the number of all LPG Cars, averaged over
the twelve (12) Month period ending the Month before the Month in which DMS
terminates this Agreement, engaged in Refinery Butane Service;
(2) DMS shall retain the exclusive Operating Rights to all
other LPG Cars whose Operating Rights are not terminated in accordance with
3.4(h)(iii)(1) above, until the end of the Primary Term, and CPC shall have
no rights whatsoever to such LPG Cars until the end of the Primary Term,
including, but not limited to, any Emergency Use Rights, the right to use
such LPG Cars to carry Products to and from all Refineries subject to this
Agreement or for any other purpose whatsoever; and
(3) at the end of the Primary Term, (a) at DMS's option,
exercised in accordance with Section 3.4(h)(vii)(7), CPC shall transfer to
DMS a number of LPG Cars equal to the number of LPG Cars, averaged over the
twelve (12) Month period ending the Month before the Month in which the
Primary Term expires, engaged in DMS Third-Person Carriage
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during such twelve (12) Month period and (b) DMS's Operating Rights in the
remaining LPG Cars shall terminate and revert to CPC.
(iv) If CPC terminates this Agreement before the end of the Primary
Term in accordance with Section 2.2 because of DMS's Material Default, DMS's
dissolution (subject, however, to the provisions of Section 2.2(b)), or the
occurrence of a Bankruptcy Event with respect to DMS, then DMS's Operating
Rights shall terminate and revert to CPC as to all LPG Cars, including but
not limited to LPG Cars engaged in DMS Third-Person Carriage.
(v) If there is a partial termination of this Agreement pursuant to
Section 2.4 before the end of the Primary Term, then:
(1) if such termination is due to termination of a Feedstock
Agreement between DMS and a Refinery based on CPC's Material Default
thereunder, then, at the time of such partial termination, (a) DMS's Operating
Rights shall terminate and revert to CPC as to a number of LPG Cars equal to
the number of LPG Cars, averaged over the twelve (12) Month period ending the
Month before the Month in which such partial termination occurred, engaged in
Refinery Butane Service for such Refinery covered by such terminated
Feedstock Agreement during such twelve (12) Month period, and (b) DMS shall
retain the exclusive Operating Rights to all other LPG Cars, and CPC shall
have no rights whatsoever to such LPG Cars until the end of the Primary Term,
including, but not limited to, any Emergency Use Rights, the right to use
such Propane Cars for Refinery Service or for any other purpose whatsoever;
(2) except as otherwise provided in this Section 3.4(h)(v),
if such termination occurs in connection with the consummation of the
Disposition of a Refinery and the assignment by CPC to the Transferee of the
Feedstock Agreement associated with such Refinery, then DMS shall retain its
Operating Rights as to all LPG Cars until the end of the Primary Term (it
being understood that if such Feedstock Agreement is not assigned in
connection with such Disposition, then, at the time of such partial
termination, DMS's Operating Rights shall terminate and revert to CPC as to a
number of LPG Cars equal to the number of LPG Cars, averaged over the twelve
(12) Month period ending the Month before the Month in which such Disposition
was consummated, engaged in Refinery Butane Service for such Refinery);
(3) if such termination is due to termination of a
Feedstock Agreement between DMS and a Refinery based on DMS's Material
Default thereunder (including but not limited to the occurrence of a Refinery
Closure Event, as defined in such Feedstock Agreement), then, at the time of
such partial termination, DMS's Operating Rights shall terminate and revert
to CPC as to a number of LPG Cars equal to the number of LPG Cars, averaged
over the twelve (12) Month period ending the Month before the Month in which
such partial termination occurred, engaged in Refinery Butane Service for
such Refinery covered by such terminated Feedstock Agreement during such
twelve (12) Month period and DMS shall retain its Operating Rights as to all
other LPG Cars until the end of the Primary Term; and
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(4) at the end of the Primary Term, (a) at DMS's option,
exercised in accordance with Section 3.4(h)(vii)(7), CPC shall transfer the
DMS LPG Cars to DMS, and (b) DMS's Operating Rights in the remaining LPG Cars
shall terminate and revert to CPC.
(vi) If, in connection with the Disposition of a Refinery, the
Feedstock Agreement for such Refinery is assigned to the Transferee, CPC
agrees that it will use every reasonable effort to maintain during the
Primary Term a number of LPG Cars in the LPG Car fleet equal to the average
number of LPG Cars that were in the LPG Car fleet over the twelve (12) Month
period ending the Month before the Month the Disposition of such Refinery and
the assignment of the associated Feedstock Agreement were consummated.
(vii) It is understood and agreed that, with respect to all
transfers of LPG Cars and/or the termination of Operating Rights under this
Section 3.4:
(1) all such transfers shall be consummated as soon
as practicable, but in no event later than sixty (60) Days after the end of
the Primary Term;
(2) in cases where DMS's Operating Rights are being
terminated, DMS shall return the LPG Cars in DMS's possession that are
affected by such termination as soon as practicable, but in no event later
than sixty (60) Days after the termination of DMS's Operating Rights in such
LPG Cars;
(3) LPG Cars transferred to DMS shall reflect, as nearly as
practicable, (a) the proportion of CPC-owned and CPC-Leased LPG Cars at the
time of such transfer and (b) the age distribution of all LPG Cars owned by
CPC at the time of the transfer;
(4) all transfers of LPG Cars to DMS shall be made without
warranty other than warranties of the type given by CPC in Section 3.4(f)(i),
subject to the disclaimers set forth in Section 3.4(f)(iv), and, with respect
to the Leased LPG Cars, subject to the Leases applicable to such LPG Cars;
(5) CPC shall have no obligation to provide Services to LPG
Cars which have been transferred to DMS in accordance with this Section
3.4(h) or as to which DMS's Operating Rights have terminated;
(6) where CPC transfers LPG Cars owned by CPC to DMS, such
transfers shall be accompanied by payment to CPC, in immediately available
funds, of an amount necessary, after taking into account prior capital cost
recovery payments by DMS, to yield CPC a seven percent (7%) return on
capital. An example of the foregoing which embodies the intent of the Parties
is attached hereto as Schedule 3.4(h). DMS shall pay such amount
simultaneously with the transfer of such LPG Cars; and
(7) in connection with the exercise of DMS's option to
cause CPC to transfer to DMS LPG Cars in accordance with Sections
3.4(h)(iii)(3) or 3.4(h)(v)(4), DMS shall
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exercise such option in either event by providing CPC with written notice to
such effect, which notice shall be received by CPC not less than 45 Days
before the end of the Primary Term. The transfer of DMS LPG Cars pursuant to
the exercise of such option shall take place in accordance with and subject
to the terms and provisions of this Section 3.4(h)(vii). Time is of the
essence in connection with the exercise of DMS's option under this Section
3.4(h), and DMS shall be deemed to have waived such option under this Section
3.4(h) if it does not timely deliver written notice to CPC exercising such
option in accordance with this Section 3.4(h)(vii)(7). If DMS fails to
exercise its option in accordance with this Section 3.4(h)(vii)(7), DMS's
Operating Rights in such LPG Cars shall terminate and revert to CPC at the
end of the Primary Term in accordance with Section 3.4(h)(ii).
ARTICLE 4
STANDARD OF PERFORMANCE AND CARE
4.1 DMS STANDARD OF PERFORMANCE. DMS shall perform the DMS Services and
shall require all of its employees and any agents or subcontractors
furnishing DMS Services, to exercise reasonable care and diligence in
providing DMS Services to CPC.
4.2 CPC STANDARD OF PERFORMANCE. CPC shall perform the CPC Services and
shall require all of its employees and any agents or subcontractors
furnishing CPC Services to exercise reasonable care and diligence in
providing CPC Services to DMS.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES
5.1 REPRESENTATIONS AND WARRANTIES OF CPC. CPC hereby represents and
warrants to DMS that on and as of the date hereof
(a) It has all requisite power and authority to carry on the
business in which it is engaged and to perform its respective obligations under
this Agreement;
(b) The execution and delivery of this Agreement have been duly
authorized and approved by all requisite corporate action;
(c) It has all requisite power and authority to enter into this
Agreement and perform its obligations hereunder;
(d) The execution and delivery of this Agreement does not, and
consummation of the transactions contemplated herein will not, violate any of
the material provisions of its organizational documents, any material agreement
pursuant to which CPC or its properties are bound or, to its knowledge, any
material laws applicable to CPC; and
(e) This Agreement is valid, binding, and enforceable against it in
accordance with its terms, subject to bankruptcy, moratorium, insolvency and
other laws generally affecting
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creditors' rights and general principles of equity (whether applied in a
proceeding in a court of law or equity).
5.2 REPRESENTATIONS AND WARRANTIES OF DMS. DMS hereby represents and
warrants to CPC that on and as of the date hereof:
(a) It has all requisite power and authority to carry on the
business in which it is engaged and to perform its respective obligations
under this Agreement;
(b) The execution and delivery of this Agreement have been duly
authorized and approved by all requisite partnership action;
(c) It has all requisite power and authority to enter into this
Agreement and perform its obligations hereunder;
(d) The execution and delivery of this Agreement does not, and
consummation of the transactions contemplated herein will not, violate any of
the material provisions of its organizational documents, any material agreement
pursuant to which DMS or its properties are bound or, to its knowledge, any
material laws applicable to DMS; and
(e) This Agreement is valid, binding, and enforceable against it in
accordance with its terms, subject to bankruptcy, moratorium, insolvency and
other laws generally affecting creditors' rights and general principles of
equity (whether applied in a proceeding in a court of law or equity).
ARTICLE 6
INDEMNIFICATION
6.1 DMS'S INDEMNITY. DMS AGREES TO INDEMNIFY AND HOLD HARMLESS CPC, ITS
AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND
CONTRACTORS (COLLECTIVELY, THE "CPC INDEMNIFIED PERSONS"), FROM ALL ACTUAL
LOSSES, COSTS, EXPENSES, CLAIMS (INCLUDING, WITHOUT LIMITATION, PERSONAL INJURY
OR PROPERTY DAMAGE CLAIMS), DAMAGES AND CAUSES OF ACTION, INCLUDING, WITHOUT
LIMITATION, REASONABLE ATTORNEYS' FEES AND COSTS OF COURT (COLLECTIVELY, THE
"LOSSES") INCURRED BY THE CPC INDEMNIFIED PERSONS, OR ANY OF THEM, AND PAID TO
THIRD PERSONS RESULTING FROM THE NEGLIGENCE, DISHONESTY, WILLFUL MISCONDUCT OR
GROSS NEGLIGENCE OF DMS (INCLUDING, WITHOUT LIMITATION, ITS OFFICERS, EMPLOYEES,
AGENTS, CONTRACTORS AND AFFILIATES) OR DMS'S BREACH OF THIS AGREEMENT IN
CONNECTION WITH THE PERFORMANCE OF DMS'S OBLIGATIONS UNDER THIS AGREEMENT.
6.2 CPC'S INDEMNITY. CPC AGREES TO INDEMNIFY AND HOLD HARMLESS DMS, ITS
AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND
CONTRACTORS (COLLECTIVELY, THE "DMS INDEMNIFIED PERSONS"), FROM ALL ACTUAL
LOSSES, COSTS, EXPENSES, CLAIMS (INCLUDING, WITHOUT LIMITATION, PERSONAL INJURY
OR PROPERTY DAMAGE CLAIMS), DAMAGES AND CAUSES OF ACTION, INCLUDING, WITHOUT
LIMITATION, REASONABLE ATTORNEYS' FEES AND
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'Confidential Treatment Requested'
COSTS OF COURT (COLLECTIVELY, THE "LOSSES") INCURRED BY THE DMS INDEMNIFIED
PERSONS, OR ANY OF THEM, AND PAID TO THIRD PERSONS RESULTING FROM THE
NEGLIGENCE, DISHONESTY, WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF CPC
(INCLUDING, WITHOUT LIMITATION, ITS OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS AND
AFFILIATES) OR CPC'S BREACH OF THIS AGREEMENT IN CONNECTION WITH THE PERFORMANCE
OF CPC'S OBLIGATIONS UNDER THIS AGREEMENT.
ARTICLE 7
FEES
7.1 COMPENSATION.
(a) DMS COMPENSATION. As compensation for the DMS Services under
this Agreement, CPC shall pay DMS the respective amounts set forth on
Exhibits A-1 through A-4, as applicable, unless a different amount has been
agreed upon in writing by DMS and CPC. Compensation for Non-Exhibit Services
performed by DMS shall be determined in accordance with the applicable RFS.
DMS's compensation shall be paid in accordance with the billing and payment
procedures set forth in Section 7.2.
(b) CPC COMPENSATION. As compensation for the CPC Services under
this Agreement, DMS shall pay CPC the respective amounts set forth on
Exhibits B-1, B-1a or B-2, as applicable, unless a different amount has been
agreed upon in writing by DMS and CPC. Compensation for Non-Exhibit services
performed by DMS shall be determined in accordance with the applicable RFS.
CPC's compensation shall be paid in accordance with the billing and payment
procedures set forth in Section 7.2.
* (c) PERIODIC FEE REDETERMINATION. [REDACTED] after the Effective
Date of this Agreement, either Party shall have the option to open this
Agreement solely for the purpose of renegotiating the fees to be paid for
Services rendered hereunder. To exercise such option, a Party at least ninety
* (90) Days before the expiration of such [REDACTED] period must provide to
the other Party written notification (the "Renegotiation Notice") of its
desire to renegotiate fees for any or all Services rendered hereunder. In any
such renegotiations, the Parties shall continue to recognize that the fees to
be paid for Services rendered hereunder must reflect the fair market value of
comparable Services provided and received by third Persons who are not
Affiliates of either Party in the area(s) where such Services are being
provided. If, after negotiating in good faith for a period of ninety (90)
Days following the date of the Renegotiation Notice, the Parties are unable
to agree upon a mutually satisfactory fee for the Services in question, the
matter shall be submitted to the alternative dispute resolution procedures as
provided in Article 11 hereof. During the period while such negotiations or
dispute resolution procedures are ongoing until (i) a new fee is agreed to or
(ii) a new fee is established as provided herein, the fee for the Services in
question shall be determined in accordance with the fee arrangement that was
applicable immediately prior to the date of the Renegotiation Notice. If a
new fee is established under this Section 7.1(c), whether by renegotiation,
arbitration, or otherwise, such new fee shall be effective as of, and shall,
if necessary, be made retroactive to the first Day of the applicable
* [REDACTED]
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period immediately following the Renegotiation Notice, plus interest thereon
at the Base Rate.
(d) HARDSHIP REDETERMINATION. In the event conditions change such
that this Agreement causes, or could reasonably be expected to cause, a
material long term economic or operational hardship to either Party, upon the
written request of either Party, CPC and DMS shall meet to renegotiate in
good faith such burdensome terms and provisions so as to make them fair and
equitable. Such renegotiations shall occur within thirty (30) Days of the
date of the nonrequesting Party's receipt of such written request for such
renegotiations. If the Parties are unable to agree on new provisions to
replace such burdensome terms and provisions within ninety (90) Days of the
non-requesting Party's receipt of such written request, the matter shall be
submitted to the alternative dispute resolution procedures set forth in
Article 11 hereof. It is understood and agreed that the rights granted in
this Section 7.1(d) can only be used by a Party to commence good faith
renegotiations once during each Year during the term hereof. If new
provisions are agreed upon under this Section 7.1(d), whether by
renegotiation, arbitration, or otherwise, such new provisions shall be
effective as of, and shall, if necessary, be made retroactive to, the date on
which the notice commencing renegotiations under this Section 7.1(d) was
given, plus interest thereon at the Base Rate. The retroactivity provisions
of the preceding grammatical sentence shall apply only to economic
provisions, and, without limiting or modifying the foregoing, it is
understood and agreed that such retroactivity provisions shall not apply to
operational provisions.
7.2 BILLING AND PAYMENT.
(a) After rendering Services hereunder, the Party rendering such
Services shall submit an invoice to the other Party by facsimile transmission
describing such Services with reasonable specificity, the amounts due in
respect of such Services and such other information and detail as may be
mutually agreeable to the Parties. By not later than ten (10) Days after the
other Party's receipt of such invoice, such other Party shall pay the Party
delivering the invoice all amounts due for Services rendered in immediately
available funds via wire transfer (or other mutually agreeable manner) into
an account designated by the invoicing Party. If the Day on which any payment
is due is not a Business Day, then the relevant payment shall be due upon the
immediately preceding Business Day, except if such payment due date is a
Sunday or Monday, then the relevant payment shall be due upon the immediately
succeeding Business Day.
(b) If CPC or DMS should fail to remit any amounts in full when
due as required hereunder, or if any adjustments are made under this
Agreement, including, without limitation, adjustments as the result of the
conclusion of any audits or as a result of the resolution of a billing
dispute, interest on the unpaid portion shall accrue from the date upon which
such payment should have been made hereunder until paid in full at the Base
Rate. All such accrued interest shall be added to the amount reflected as
being owed hereunder by either CPC or DMS, as the case may be, on the next
invoice or by separate invoice.
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(c) If a good-faith dispute arises as to the amount payable in
any statement, the amount not in dispute shall be paid. If either Party
elects to withhold any payment otherwise due as a consequence of such
good-faith dispute, the withholding Party shall provide the other Party with
written notice of its reasons for withholding payment, and shall
simultaneously place the disputed amount into an escrow account at a mutually
acceptable commercial bank, pending resolution of the dispute. Any such
dispute shall be resolved in accordance with the alternative dispute
resolution procedures set forth in Article 11. The performance of both
Parties under this Agreement shall continue pending the outcome of such
Procedures. If it is subsequently determined, whether by mutual agreement of
the Parties or otherwise, that the withholding Party is required to pay all
or any portion of the disputed amounts to the other Party, the withholding
Party, in addition to paying over such amounts, shall also pay interest
accrued on such amounts from the original due date until paid, at the Base
Rate.
(d) No retroactive adjustments may be made for any overcharge or
under-charge after a period ending twenty-four (24) Months from the end of
the Month in which the invoice for the Services forming the basis of the
overcharge or undercharge was rendered or not rendered, as the case may be,
unless a claim for such adjustment shall have been presented prior to the end
of such period. Any payment with respect to a retroactive adjustment shall
include an amount equal to interest on all amounts past due, from the date
such amounts should have been paid until the date of their payment, at the
Base Rate, except in instances where neither Party knew or could have known
that the overcharge or undercharge occurred, in which case interest on such
amounts shall accrue at the Base Rate from the date of demand for payment
until such amounts are paid.
(e) Either Party, upon notice in writing to the other, shall have
the right at reasonable hours to audit the accounts and records relating to
the accounting or billing under the provisions of any article hereof;
provided, however, that the auditing Party must take written exception to and
make claim upon the other Party for all discrepancies disclosed by said audit
within twenty-four (24) Months of the rendition of any statement or invoice
forming the basis of such claim. Such audit shall be conducted by the
auditing Party's representative or auditor at the auditing Party's expense.
(f) All payments will be made without setoff or counterclaim;
provided, however, that upon a Party's (the defaulting Party) failure to make
payment of undisputed amounts on the due date, the other Party (the
non-defaulting Party) may, at its option and in its discretion, setoff
against any amounts owed to the defaulting Party any amounts owed by the
defaulting Party under this Agreement or otherwise. The obligations of the
non-defaulting Party and the defaulting Party under this Agreement in respect
of such amounts shall be deemed satisfied and discharged to the extent of any
such setoff. The non-defaulting Party will give the defaulting Party notice
of any setoff made under this Section 7.2(f) as soon as practicable after the
setoff is made provided that failure to give such notice shall not offset the
validity of the setoff.
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(g) ALL DISPUTES ARISING UNDER THIS ARTICLE 7 THAT ARE NOT
OTHERWISE RESOLVED AS PROVIDED HEREIN SHALL BE SUBMITTED TO THE ALTERNATIVE
DISPUTE RESOLUTION PROCEDURES AS SET FORTH IN ARTICLE 11 HEREOF. TO THE
EXTENT THAT ANY SUCH UNRESOLVED DISPUTE HAS NOT BEEN SUBMITTED TO SUCH
ALTERNATIVE DISPUTE RESOLUTION PROCEDURES WITHIN TWENTY-FIVE (25) MONTHS
AFTER THE EVENT CAUSING THE DISPUTE IS DISCOVERED OR REASONABLY SHOULD HAVE
BEEN DISCOVERED, THE PARTY ASSERTING THE CLAIM IN DISPUTE SHALL BE DEEMED TO
HAVE WAIVED ANY SUCH CLAIM AND ALL RIGHTS HEREUNDER WITH RESPECT THERETO.
ARTICLE 8
OPERATING COMMITTEE
8.1 GENERALLY. For each of the Services rendered hereunder, CPC and DMS
agree to establish an Operating Committee ("Operating Committee") for each
Refinery receiving Services to perform the duties outlined below. The
Operating Committee shall be composed of members from both CPC and DMS, and,
where appropriate, shall include a representative of CPC's Transportation
Planning and Services ("TP&S") group. Duties of the Operating Committee will
include, but will not be limited to, the following:
(a) administering and coordinating the routine business of the
Operating Committee, which will include the planning, coordinating, and
scheduling of Services;
(b) determining and developing strategies with respect to
Operating Committee activities;
(c) developing, communicating, and monitoring mutually agreed
to standards of performance for Services;
(d) reviewing all significant equipment, design, process, and
operating changes affecting Services;
(e) conducting regularly scheduled planning, problem solving,
and expense review meetings pertaining to Services;
(f) participating in the alternative dispute resolution
procedures as set forth in Article 11 hereafter; and
(g) developing procedures for making the Parties' performance
of Services more efficient and cost-effective.
ARTICLE 9
CONFIDENTIALITY
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9.1 CONFIDENTIALITY. Each Party agrees that it will maintain this
Agreement, all terms and conditions of this Agreement and all other
Confidential Information (as hereinafter defined) in strictest confidence and
that it will not cause or permit disclosure of Confidential Information to
any third Person without the express written consent of the other Party
hereto. Disclosures of Confidential Information otherwise prohibited by this
Article 9 may be made by either Party: (i) to the extent necessary for such
Party to enforce its rights hereunder against the other Party; (ii) to the
extent a Party is contractually or legally bound to disclose information to a
third Person (such as a shareholder, a commercial lender or a Transferee or a
prospective Transferee of any Refinery); (iii) only to the extent to which a
Party hereto is required to disclose all or part of this Agreement by a
statute or by the order of a court, agency, or other governmental body
exercising jurisdiction over the subject matter hereof, by order, by
regulations, or by other compulsory process (including, but not limited to,
deposition, subpoena, interrogatory, or request for production of documents);
(iv) to the extent required by the applicable regulations of a securities or
commodities exchange; or (v) to an Affiliate (but only if such Affiliate
agrees to be bound by the provisions of this Article 9). "Confidential
Information" shall mean any information proprietary to either Party and
maintained by it in confidence or as a trade secret, including, without
limitation, business plans and strategies, proprietary software, financial
statements, customer or client lists, personnel records, analysis of general
energy market conditions, sales, transportation and service contracts and the
commercial terms thereof, relationships with current and potential business
partners, suppliers, customers, service providers and financial sources, data
base contents (including but not limited to the CPC Databases) and valuable
information of a like nature relating to the business of such Party. It is
understood and agreed that Confidential Information shall not include
information of a Party that (w) becomes generally available to the public at
the time of disclosure to the other Party, or (x) after the time of
disclosure to the other Party, was generally made available to the public
without breach of this Agreement, or (y) the Person receiving the information
can show was rightfully in its possession at the time of disclosure or (z)
was rightfully acquired by the recipient from third Persons who did not
themselves obtain such information under a confidentiality or other similar
agreement with the Party whose information was disclosed.
9.2 NOTIFICATION OF DISCLOSURE. If either Party is or becomes aware of
a fact, obligation, or circumstance that has resulted or may result in a
disclosure of Confidential Information authorized by this Article 9, it shall
so notify the other Party promptly and shall provide documentation or an
explanation of such disclosure as soon as it is available. Each Party further
agrees to cooperate to the fullest extent in seeking confidential status to
protect any Confidential Information so disclosed.
9.3 DISCLOSURE TO COUNSEL. The Parties hereto acknowledge that
independent legal counsel, certified public accountants or other consultants
or independent contractors of a Party (collectively, "Outside Consultants")
may, from time to time, be provided with a copy of this Agreement if, in the
judgment of the disclosing Party, the information contained in this Agreement
is necessary to the performance of such Outside Consultants' duties.
Accordingly,
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the Parties agree that such disclosure does not require consent by the other
Party, provided that any such Outside Consultants agree to be bound by the
provisions of this Article 9.
9.4 RESPONSIBILITY FOR CONFIDENTIALITY. Each Party will be deemed solely
responsible and liable for the actions of its employees, Outside Consultants,
officers and agents for maintaining the confidentiality commitments of this
Article 9, but will be required in that regard only to exercise such care in
maintaining the confidentiality of the Confidential Information as such Party
normally exercises in preserving the confidentiality of its other commercially
sensitive information.
ARTICLE 10
FORCE MAJEURE
10.1 In the event either Party is rendered unable, wholly or in part, by
Force Majeure to carry out its obligations under this Agreement, it is agreed
that upon such Party's giving notice and reasonably full particulars of such
Force Majeure in writing to the other Party after the occurrence of the cause
relied on, then the obligations of the Party giving such notice, so far as and
to the extent that they are affected by such Force Majeure, shall be suspended
during the continuance of any inability so caused, but for no longer period, and
such cause shall so far as possible be remedied with all reasonable dispatch.
This Agreement shall not be terminated by reason of any such cause, but shall
remain in full force and effect, and this Agreement shall not be extended
regardless of such curtailment or cessation.
10.2 The term "Force Majeure" as used herein shall mean acts of God,
strikes, lockouts, or other industrial disturbances, acts of the public
enemy, wars, blockades, insurrections, riots, epidemics, landslides,
lightning, earthquakes, fires, tornadoes, hurricanes, or storms, tornado,
hurricane, or storm warnings which in any Parties' judgment require the
precautionary shutdown of a Refinery or any operating units thereof, or modes
of transportation used by DMS to perform its Services hereunder, floods,
washouts, arrests or restraints of the government, either federal or state,
civil or military, civil disturbances, explosions, sabotage, breakage or
accident to equipment, machinery or lines of pipe, freezing of machinery,
equipment or lines of pipe, electric power shortages, inability of any Party
to obtain necessary permits and/or permissions due to existing or future
rules, orders, laws or governmental authorities (both federal, state and
local), shutdowns of a Refinery or any operating units thereof or modes of
transportation used by DMS to perform its Services hereunder due to explosion
or other extraordinary incident, or any other causes, whether of the kind
herein enumerated or otherwise, which were not reasonably foreseeable on the
Effective Date, and which are not within the control of the Party claiming
suspension and which such Party is unable to overcome by the exercise of due
diligence. It is understood and agreed that the settlement of strikes or
lockouts shall be entirely within the discretion of the Party having the
difficulty, and that the above requirement that any Force Majeure shall be
remedied with all reasonable dispatch shall not require the settlement of
strikes or lockouts by acceding to the demands of opposing parties when such
course is inadvisable in the discretion of the Party having difficulty. The
term "Force Majeure" shall also include any such event occurring with respect
to the facilities or services of
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either CPC's or DMS's third Party suppliers or customers delivering or
receiving any product, fuel, feedstock, or other substance necessary to the
performance of such Party's obligations, and shall also include curtailment
or interruption of deliveries or service by such third Party suppliers or
customers as a result of another event of Force Majeure.
ARTICLE 11
ALTERNATIVE DISPUTE RESOLUTION PROCEDURES
11.1 Any dispute, controversy or claim arising out of or relating to
this Agreement, or the breach or performance hereof, including, but not
limited to, any disputes concerning the interpretation of the terms and
provisions hereof, shall be resolved through the use of the following
procedures:
(a) The Parties will initially attempt in good faith to resolve any
disputes, controversy or claim arising out of or relating to this Agreement.
(b) Should the Parties directly involved in any dispute, controversy
or claim be unable to resolve same within a reasonable period of time, such
dispute, controversy or claim shall be submitted to the Operating Committee with
such explanation or documentation as the Parties deem appropriate to aid the
Operating Committee in their consideration of the issues presented. The date the
matter is first submitted to the Operating Committee shall be referred to as the
"Submission Date." The Operating Committee representatives shall attempt in good
faith, through the process of discussion and negotiation, to resolve any
dispute, controversy, or claim presented to it within forty-five (45) Days after
the Submission Date.
(c) If the Operating Committee representatives cannot so resolve any
dispute, controversy, or claim submitted to it within forty-five (45) Days after
the Submission Date, the Parties shall attempt in good faith to settle the
matter by submitting the dispute, controversy or claim to mediation within sixty
(60) Days after the submission date using any mediator upon which they mutually
agree. If the Parties are unable to mutually agree upon a mediator within
seventy-five (75) Days after the Submission Date, the case shall be referred for
mediation to the office of Judicial Arbitration and Mediation Services, Inc.
("JAMS") in Houston, Texas. The cost of the mediator will be split equally
between the Parties unless they agree otherwise in writing.
(d) If the matter has not been resolved pursuant to the aforesaid
mediation procedure within thirty (30) Days of the initiation of such procedure,
or if either Party will not participate in such mediation, either Party may
request that the matter be resolved through arbitration by submitting a written
notice (the "Arbitration Notice") to the other. Any arbitration that is
conducted hereunder shall be governed by the Federal Arbitration Act, 9 U.S.C.
Section 1 ET SEQ., and will not be governed by the arbitration acts, statutes or
rules of any other jurisdiction.
(e) The Arbitration Notice shall name the noticing Party's
arbitrator and shall contain a statement of the issue(s) presented for
arbitration. Within fifteen (15) Days of receipt
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of an Arbitration Notice, the other Party shall name its arbitrator by written
notice to the other and may designate any additional issue(s) for arbitration.
The two named arbitrators shall select the third arbitrator within fifteen (15)
Days after the date on which the second arbitrator is named. Should the two
arbitrators fail to agree on the selection of the third arbitrator, either Party
shall be entitled to request the Senior Judge of the United States District
Court for the Southern District of Texas to select the third arbitrator. All
arbitrators shall be qualified by education or experience within the liquefied
petroleum gas, natural gas liquids, or petroleum refining industry to decide the
issues presented for arbitration. No arbitrator shall be: a current or former
director, officer or employee of either Party, or its Affiliates; an attorney
(or member of a law firm) who has rendered legal services to either Party, or
its Affiliates, within the preceding three (3) Years; or an owner of any of the
common stock of either Party or its Affiliates.
(f) The three arbitrators shall commence the arbitration proceedings
within twenty-five (25) Days following the appointment of the third arbitrator.
The arbitration proceedings shall be held at a mutually acceptable site and if
the Parties are unable to agree on a site, the arbitrators shall select the
site. The arbitrators shall have the authority to establish rules and procedures
governing the arbitration proceedings. Each Party shall have the opportunity to
present its evidence at the hearing. The arbitrators may call for the submission
of pre-hearing statements of position and legal authority, but no post-hearing
briefs shall be submitted. The arbitration panel shall not have the authority to
award punitive, exemplary or consequential damages. The arbitrators' decision
must be rendered within thirty (30) Days following the conclusion of the hearing
or submission of evidence, but no later than ninety (90) Days after the
appointment of the third arbitrator. With respect to disputes regarding the
value of transferred LPG Cars under Section 3.4(h)(vii) or fee redeterminations
under Article 7, each Party shall submit to the arbitration panel a final offer
of its proposed resolution of the dispute. A majority of the arbitrators shall
approve the final offer of one Party without modification, and reject the offer
of the other Party.
(g) The decision of the arbitrators or a majority of them, shall be
in writing and shall be final and binding upon the Parties as to the issue(s)
submitted. The cost of the hearing shall be shared equally by the Parties, and
each Party shall be responsible for its own expenses and those of its counsel or
other representatives. Each Party hereby irrevocably waives, to the fullest
extent permitted by law, any objection it may have to the arbitrability of any
such disputes, controversies or claims and further agrees that a final
determination in any such arbitration proceedings shall be conclusive and
binding upon each Party. Judgment on the award rendered by the arbitrators may
be entered in any court having jurisdiction thereof. The prevailing Party shall
be entitled to recover reasonable attorneys' fees and court costs in any court
proceeding relating to the enforcement or collection of any award or judgment
rendered by the arbitration panel under this Agreement.
(h) All deadlines specified herein may be extended by mutual written
agreement of the Parties. The procedures specified herein shall be the sole and
exclusive procedures for the resolution of disputes between the Parties arising
out of or relating to this
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Agreement; PROVIDED, HOWEVER, that a Party may seek a preliminary injunction
or other preliminary judicial relief if in its judgment such action is
necessary to avoid irreparable damage. Despite such action, the Parties will
continue to participate in good faith in the procedures specified herein. All
applicable statutes of limitation, including, without limitation, contractual
limitation periods provided for in this Agreement shall be tolled while the
procedures specified in this Section 11 are pending. The Parties will take
all actions, if any, necessary to effectuate the tolling of any applicable
statutes of limitation.
ARTICLE 12
MISCELLANEOUS
12.1 INTEGRATION, AMENDMENTS, AND WAIVER. This Agreement, including,
without limitation, all exhibits hereto, integrates the entire understanding
between the Parties with respect to the subject matter covered and supersedes
all prior understandings, drafts, discussions, or statements, whether oral or
in writing, expressed or implied, dealing with the same subject matter. This
Agreement may not be amended or modified in any manner except by a written
document signed by both Parties that expressly amends this Agreement. No
waiver by CPC or DMS of any of the provisions of this Agreement shall be
deemed or shall constitute a waiver of any other provision hereof (whether or
not similar) nor shall such waiver constitute a continuing waiver unless
expressly provided. No waiver shall be effective unless made in writing and
signed by the Party to be charged with such waiver. Notwithstanding the
foregoing, however, if there is a conflict between this Agreement and a RFS,
the RFS shall control.
12.2 INDEPENDENT RELATIONSHIP. Nothing contained in this Agreement
shall be construed to create an association, trust, partnership, or joint
venture or impose a trust or partnership duty, obligation, or liability on or
with regard to either Party.
12.3 BINDING NATURE; ASSIGNMENT AS SECURITY. Except as provided in this
Section 12.3, neither Parry may assign all or any part of its rights or
obligations under this Agreement without the prior written consent of the
other Party, such consent to be granted at the sole discretion of the other
Party, except that (i) either Party may assign its rights hereunder to any
Affiliate of such Party without the approval of the other Party (but such
assignment shall in no way relieve or release the assigning Party from any
obligations hereunder, whether accrued or unaccrued, unless consented to in
writing by the non-assigning Party, such consent to be granted at the sole
discretion of such Party) and (ii) either Party may, for collateral purposes,
mortgage, pledge, encumber or grant a security interest in or a lien on its
interest in this Agreement and/or its rights hereunder to any commercial
bank, trustee or other Person acting on behalf of any such commercial bank,
but only with the prior consent of the other Party, such consent not to be
unreasonably withheld. Any transfer or assignment in violation of this
Section 12.3 shall be void.
12.4 CHOICE OF LAW. THIS AGREEMENT AND THE RIGHTS AND DUTIES OF THE
PARTIES ARISING OUT OF THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED,
ENFORCED, AND PERFORMED IN ACCORDANCE WITH THE
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LAWS OF THE STATE OF TEXAS, AS THE SAME MAY BE AMENDED FROM TIME TO TIME,
WITHOUT GIVING EFFECT TO ANY CHOICE OR CONFLICT OF LAW PROVISION OR RULE THAT
WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE
STATE OF TEXAS.
12.5 CONFLICTS OF INTEREST. No director, employee, or agent of either
Party shall give or receive any commission, fee, rebate, gift, or
entertainment of significant cost or value in connection with this Agreement.
12.6 REPORTS AND RECORD KEEPING. Each Party shall provide the other
Party with such reports as may be mutually agreeable to both Parties. Each
Party shall maintain such records and accounts as may be necessary to the
performance of its respective duties and obligations hereunder, in accordance
with good business practices.
12.7 REMEDIES.
(a) FOR BREACH OF ANY PROVISION FOR WHICH AN EXPRESS REMEDY OR
MEASURE OF DAMAGES IS PROVIDED IN THIS AGREEMENT, SUCH EXPRESS REMEDY OR
MEASURE OF DAMAGES SHALL BE THE SOLE AND EXCLUSIVE REMEDY HEREUNDER, AND THE
OBLIGOR'S LIABILITY SHALL BE LIMITED AS SET FORTH IN SUCH PROVISION, AND ALL
OTHER REMEDIES OR DAMAGES ARE WAIVED. IF NO REMEDY OR MEASURE OF DAMAGES IS
EXPRESSLY PROVIDED HEREIN, THE OBLIGOR'S LIABILITY SHALL BE LIMITED TO DIRECT
ACTUAL DAMAGES ONLY, EXCLUDING LOST PROFITS, AND SUCH DIRECT ACTUAL DAMAGES
SHALL BE THE SOLE AND EXCLUSIVE REMEDY HEREUNDER, AND ALL OTHER REMEDIES OR
DAMAGES ARE WAIVED. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER
PARTY UNDER ANY PROVISION OF THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION,
ANY INDEMNITY PROVISION HEREOF) FOR CONSEQUENTIAL, INDIRECT, PUNITIVE OR
EXEMPLARY DAMAGES IN TORT OR CONTRACT. EXCEPT AS EXPRESSLY PROVIDED HEREIN,
NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY UNDER ANY PROVISION OF THIS
AGREEMENT FOR INCIDENTAL DAMAGES. TO THE EXTENT ANY PAYMENT REQUIRED TO BE
MADE PURSUANT TO ANY PROVISION OF THIS AGREEMENT IS AGREED BY THE PARTIES TO
CONSTITUTE LIQUIDATED DAMAGES, THE PARTIES ACKNOWLEDGE THAT THE DAMAGES ARE
DIFFICULT OR IMPOSSIBLE TO DETERMINE, AND THAT SUCH PAYMENT CONSTITUTES A
REASONABLE APPROXIMATION OF THE AMOUNT OF SUCH DAMAGES.
(b) Except as otherwise provided herein, each Party reserves to
itself all rights, setoffs, counterclaims, and other remedies and/or defenses
which such Party is or may be entitled to arising from or out of this
Agreement or as otherwise provided by law.
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12.8 NO THIRD PARTY BENEFICIARIES. This Agreement is for the sole
benefit of the Parties and their respective successors and permitted assigns,
and shall not inure to the benefit of any other Person whomsoever, it being the
intention of the Parties that no Person shall be deemed a third Party
beneficiary of this Agreement.
12.9 NOTICES. Any notice or other communication provided for in this
Agreement or any notice which either Party may desire to give to the other shall
be in writing and shall be deemed to have been properly given if and when sent
by facsimile transmission, delivered by hand, or if sent by mail, upon deposit
in the United States mail, either U.S. Express Mail, registered mail, or
certified mail, with all postage fully prepaid, or if sent by courier, by
delivery to a bonded courier with charges paid in accordance with the customary
arrangements established by such courier, in each case addressed to the Parties
at the following addresses:
If to CPC: Chevron Products Company
To the Refinery Manager for each Refinery receiving the
Services at issue and in need of notice herein, at the
addresses set forth in the applicable Feedstock Agreements.
In addition, for matters involving LPG Car Services:
Chevron Products Company
Manager, Rail Transportation Services
575 Lennon Lane
Section 515
Walnut Creek, California 94589
Telephone: 925/977-7117
Facsimile: 925/977-7066
In all situations, with a copy to:
Vice President and General Counsel
Chevron Products Company
575 Market Street, Suite 2182
San Francisco, California 94105-2854
Telephone: (415) 894-3232
Facsimile: (415) 894-5489
If to DMS: Dynegy Midstream Services, Limited Partnership
1000 Louisiana Street, Suite 5800
Houston, Texas 77002
Attention: Vice President - Wholesale Marketing and
Transportation
Telephone: 713/507-6719
Facsimile: 713/767-5958
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with a copy to:
Senior Vice President and General Counsel
Dynegy Midstream Services, Limited Partnership
1000 Louisiana Street, Suite 5800
Houston, Texas 77002
Telephone: 713/507-3725
Facsimile: 713/507-6987
or at such other address as either Party shall designate by written notice to
the other. A notice sent by facsimile shall be deemed to have been received
by the close of the Business Day following the Day on which it was
transmitted and confirmed by transmission report or such earlier time as
confirmed orally or in writing by the receiving Party. Notice by U.S. Mail,
whether by U.S. Express Mail, registered mail, or certified mail, or by
overnight courier shall be deemed to have been received by the close of the
second Business Day after the Day upon which it was sent, or such earlier
time as is confirmed orally or in writing by the receiving Party. Any Party
may change its address or facsimile number by giving notice of such change in
accordance with the terms of this Section 12.9.
12.10 GOVERNMENT REGULATION. This Agreement and the operations
hereunder shall be subject to the valid and applicable federal and state laws
and the valid and applicable orders, laws, local ordinances, rules, and
regulations of any local, state or federal authority having jurisdiction, but
nothing contained herein shall be construed as a waiver of any right to
question or contest any such order, laws, local ordinances, rules, or
regulations in any forum having jurisdiction in the premises.
12.11 SAFE PRACTICES. Both Parties acknowledge that they are familiar
with, and shall take all steps necessary to inform, warn and familiarize
their respective employees, agents, customers and contractors who may be
affected by the provision or receipt of Services of all hazard and proper
safety procedures pertaining thereto.
12.12 CONSTRUCTION OF AGREEMENT. In construing this Agreement, the
following principles shall be followed:
(a) no consideration shall be given to the fact or presumption
that one Party had a greater or lesser hand in drafting this Agreement;
(b) examples shall not be construed to limit, expressly or by
implication, the matter they illustrate;
(c) the word "includes" and its syntactical variants mean
"includes, but is not limited to" and corresponding syntactical variant
expressions; and
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(d) the plural shall be deemed to include the singular and vice
versa, as applicable; and
(e) captions used in this Agreement are for the Parties'
convenience only, and shall not be used in its construction or interpretation.
12.13 SEVERABILITY. If any provision of this Agreement is held to be
illegal, invalid, or unenforceable under the present or future laws effective
during the term of this Agreement, (i) such provision will be fully
severable, (ii) this Agreement will be construed and enforced as if such
illegal, invalid, or unenforceable provision had never comprised a part of
this Agreement, and (iii) the remaining provisions of this Agreement will
remain in full force and effect and will not be affected by the illegal,
invalid, or unenforceable provision or by its severance from this Agreement.
Furthermore, in lieu of such illegal, invalid, or unenforceable provision,
there will be added automatically as a part of this Agreement a provision as
similar in terms to such illegal, invalid, or unenforceable provision as may
be possible and may be legal, valid and enforceable. If a provision of this
Agreement is or becomes illegal, invalid or unenforceable in any
jurisdiction, the foregoing event shall not affect the validity or
enforceability in that jurisdiction of any other provision of this Agreement
nor the validity or enforceability in other jurisdictions of that or any
other provision of this Agreement.
12.14 FURTHER ASSURANCES. Each Party shall take such acts and execute
and deliver such documents in form and substance reasonably satisfactory to
each of them, in order to effectuate the purposes of this Agreement. This
Section 12.14 neither limits nor modifies the rights and obligations of the
Parties to cooperate in accordance with the terms of Section 3.2(c).
12.15 WAIVER OF CONSUMER RIGHTS. EACH PARTY EXECUTING THIS AGREEMENT AS
A BUYER OR SELLER HEREBY WAIVES ITS RESPECTIVE RIGHTS UNDER THE DECEPTIVE
TRADE PRACTICES-CONSUMER PROTECTION ACT, SECTION 17.41 ET SEQ., TEXAS
BUSINESS & COMMERCE CODE, A LAW THAT GIVES CONSUMERS SPECIAL RIGHTS AND
PROTECTIONS. AFTER CONSULTATION WITH AN ATTORNEY OF ITS OWN SELECTION, EACH
PARTY EXECUTING THIS AGREEMENT VOLUNTARILY CONSENTS TO THIS WAIVER. IN
ADDITION, EACH PARTY EXECUTING THIS AGREEMENT HEREBY REPRESENTS AND WARRANTS
THAT (I) SUCH PARTY'S LEGAL COUNSEL WAS NOT DIRECTLY OR INDIRECTLY
IDENTIFIED, SUGGESTED, OR SELECTED BY THE OTHER PARTY EXECUTING THIS
AGREEMENT OR BY AN AGENT OF SUCH OTHER PARTY SELLER, AND (II) NEITHER PARTY
EXECUTING THIS AGREEMENT IS IN A SIGNIFICANTLY DISPARATE BARGAINING POSITION.
12.16 INSURANCE. Each Party agrees to carry insurance of the types and
in the amounts mutually agreed to by the Parties. Either Party may elect to
self-insure for all or any portion of such coverages without the consent of
the other Party.
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12.17 RENEGOTIATION OF AMENDMENT. The Parties hereto agree that the
amendments made to the accounting provisions as set forth in this First
Amended and Restated Feedstock and Refinery Product Master Services Agreement
("Amended Agreement") shall remain in effect for a trial period commencing
effective as of July 1, 1999, and ending December 31, 2001 (the "Trial
Period"). At least ninety (90) days prior to the end of such Trial Period, by
written notice to the other Party, either Party hereto shall have the right
to reopen this Agreement for the purpose of renegotiating such accounting
provisions. If this Agreement is reopened for renegotiation, each of the
Parties hereto agree to negotiate in good faith mutually acceptable revisions
to the accounting provisions. If after negotiating in good faith for a
reasonable period of time, the Parties are unable to reach agreement on such
revisions, the accounting provisions as set forth in the original Feedstock
and Refinery Product Master Services Agreement shall be reinstated in their
entirety effective as of the first Day of the Month following the end of such
good faith negotiations. During the pendency of any such good faith
negotiations, the terms and provisions of the Amended Agreement shall remain
if full force and effect. If neither Party hereto elects to reopen this
Amended Agreement as provided above, the modifications to the accounting
provisions as set forth in this Amended Agreement shall continue in full
force and effect during the term of this Agreement and any extensions
thereto. Notwithstanding anything contained in this Section 12.17 to the
contrary, neither Party hereto shall have the right to reopen this Amended
Agreement at the end of the Trial Period unless (i) a majority of all CPC
Business Groups or (ii) a majority of all DMS Business Groups consent to the
reopening of same.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on
the dates set forth below.
CHEVRON PRODUCTS COMPANY DYNEGY MIDSTREAM SERVICES,
a Division of Chevron U.S.A. Inc. LIMITED PARTNERSHIP
By: Dynegy Midstream G.P., Inc.,
its General Partner
By: /s/ T.P. Garrett By: /s/ Terry D. Jones
--------------------------- -------------------------------
Name: T.P. GARRETT Name: Terry D. Jones
------------------------- -----------------------------
Title: ASSISTANT SECRETARY Title: Senior Vice President
------------------------ ----------------------------
Date: NOVEMBER 3, 1999 Date: November 15, 1999
------------------------ ----------------------------
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EXHIBITS AND SCHEDULES
Exhibit A-1 DMS Transportation Services
Exhibit A-2 DMS Feedstock Products Storage Services
Exhibit A-3 DMS Isomerization Services
Exhibit A-4 DMS Feedstock Products Transfer Services
Exhibit B-1 CPC Rail Transportation Services
Exhibit B-1a Fee for CPC Rail Services
Exhibit B-2 CPC Freight Audit and Payment Services
Exhibit C Request for Services
Exhibit D DMS Acknowledgment of Security Procedures and Conditions
Schedule 3.4(h) Illustration of LPG Car Payment Under Section 3.4(h)(vii)(6)
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EXHIBIT A-1
TO FEEDSTOCK AND REFINERY PRODUCT
MASTER SERVICES AGREEMENT
DMS TRANSPORTATION SERVICES
SCOPE OF SERVICES: DMS shall perform Services reasonably requested in
connection with the transportation of Products. In general, DMS will be
required under Exhibits A-1 through A-4 to:
1. Determine the availability of modes of transportation for such
Products;
2. Secure the availability of trucks, barges, pipelines or other
modes of transportation (excluding rail cars);
3. Dispatch, on a Daily basis, the foregoing modes of transportation
for such Products;
4. Trace and track LPG Cars, trucks, barges or other modes of
transporting Products; and
5. Negotiate commercially reasonable freight rates for LPG Cars,
trucks, barges and other modes of transporting Products.
In addition, DMS shall perform the Services more particularly described in
Parts I, II and III of this Exhibit.
PART I -- LPG CAR OPERATION SERVICES
1. Through the use of the Railtrac, track the actual movements of
all LPG Cars.
2. Generate and review reports from Railtrac to monitor all rail
activities, including providing reports to shipping locations and receiving
locations.
3. In consultation with CPC, schedule LPG Cars to be in place to
meet Refinery needs.
4. Plan and coordinate LPG Car fleet sizing requirements.
5. Resolve scheduling and dispatching problems of LPG Cars in
transit.
6. Coordinate the scheduling of LPG Cars into maintenance shops for
required inspections.
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7. Work with Refineries, Refinery customers and TP&S maintenance
specialists on handling LPG Cars that need maintenance in addition to
required inspections.
8. Maintain rail tariff, rate files and associated data bases and
provide reports on rail tariffs and rates to such CPC personnel as are
necessary to perform the Services as set forth in Exhibits B-1, B-1a and B-2.
9. Attend DOT and AAR hazardous material seminars and training
sessions.
10. Review all DOT/AAR publications for changes in regulations that
would affect the shipping of LPG Cars or any other regulation that might
affect the LPG Cars.
11. Assist in training CPC personnel in preparing and shipping LPG
Cars in accordance with all applicable DOT and AAR regulations.
12. Work with all government and industry groups on issues regarding
odorization of Propane in LPG Cars.
13. Assist in developing and communicating quality standards for all
Products that are shipped by CPC.
14. Maintain an Emergency Response Procedure in accordance with
applicable law.
15. Enter orders into CPS for Products shipped from each Refinery.
PART II -- COMMERCIAL TRUCK OPERATION SERVICES
1. Review third Person carrier insurance coverage for compliance
with CPC and DOT policies.
2. Review third Person carrier Motor Carrier Safety rating for
compliance with CPC and DOT policies.
3. Have third Person carrier complete Motor Carrier Safety Survey.
4. Have third Person carrier complete Chemical Manufacturers
Association Highway Carrier Assessment Protocol.
5. Work with all government and industry groups on issues regarding
odorization of Propane in trucks.
6. Provide freight rate or other pertinent information to FIS.
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7. Assist in resolving freight bill problems.
8. Conduct on-site safety audits of third Person carriers.
9. Perform DOT/SFH reviews on all common carrier trucks used by CPC.
10. Enter orders into CPS for truck shipments of Products shipped
from the Refineries.
PART III -- BARGE OPERATION SERVICES
1. Monitor all regulatory developments applicable to barges and the
movement of Products on barges, including issues regarding the odorization of
Propane.
2. Perform compliance reviews for all marine terminals and transport
operations pertinent to the transportation of Products.
3. Develop emergency response and spill plans for facilities to
comply with applicable federal, state and local requirements.
4. Maintain training programs that comply with federal HAZMAT
regulations.
FEES: The consideration for DMS providing the transportation Services set
forth in Exhibit A-1 in connection with the transportation of Feedstocks and
Refinery Products as provided in the Feedstock Agreements is included in the
pricing provisions of each Feedstock Agreement. In addition, the fees for
transportation Services set forth herein are included in the fees set forth
in Exhibits A-2, A-3 and A-4.
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'Confidential Treatment Requested'
EXHIBIT A-2
TO FEEDSTOCK AND REFINERY PRODUCT
MASTER SERVICES AGREEMENT
DMS FEEDSTOCK PRODUCTS STORAGE SERVICES
SCOPE OF SERVICES: DMS shall perform Services reasonably requested in
connection with the storage of Feedstock Products, including but not limited
to:
1. Negotiating, in consultation with CPC, commercially reasonable
leases or other contractual arrangements for the storage of Feedstock
Products;
2. Consulting with the Refineries in connection with the management of
Feedstock Products inventories including accounting for volumes of Feedstock
Products moved into and out of storage facilities; and
3. Any other Services mutually agreed to in writing by the Parties.
FEES: Reimbursement of (i) reasonably incurred storage fees, (ii) Feedstock
Product losses (other than losses incurred as a result of DMS's negligence or
willful misconduct) and storage penalties (unless incurred as a result of
DMS's negligence or willful misconduct), plus (iii) Transportation Costs and
* T&F Costs, as applicable, plus, (iv) [REDACTED] per Gallon for each "round
turn" of Feedstock Product stored.
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'Confidential Treatment Requested'
EXHIBIT A-3
TO FEEDSTOCK AND REFINERY PRODUCT
MASTER SERVICES AGREEMENT
DMS ISOMERIZATION SERVICES
SCOPE OF ISOMERIZATION SERVICES: DMS shall perform Services reasonably
requested in connection with the isomerization and general processing of
Mixed Butanes into Isobutane, including but not limited to:
1. Negotiating, in consultation with CPC, (i) commercially reasonably
relationships with third Persons providing services (including, without
limitation, storage services) with respect to isomerization and general
processing of Mixed Butanes into Isobutane and (ii) planning and accounting
for Daily movements of Mixed Butanes and Isobutane into and out of the
Refineries and relevant isomerization facilities (such Refineries and
facilities being collectively called the "Locations") according to their
Daily Mixed Butanes and Isobutane requirements;
2. Arranging for storage of Mixed Butanes and Isobutane at the
Locations; and
3. Any other Services mutually agreed to in writing by the Parties.
FEES FOR ALL SERVICES: Reimbursement of all Transportation Costs or T&F
Costs, as applicable, incurred in connection with providing the foregoing
Services (including, but not limited to, amounts paid pursuant to the terms
of commercially reasonable storage agreements), plus, for each "round turn"
* of Isobutane, [REDACTED] per Gallon. Notwithstanding the foregoing, it is
understood and agreed that compensation for all Services rendered by DMS in
connection with the Isomerization Agreement is set forth in the Feedstock
Agreement between DMS and CPC pertaining to the El Segundo Refinery, and that
no amounts due DMS in connection with such Services shall be recovered by DMS
under this Agreement.
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'Confidential Treatment Requested'
EXHIBIT A-4
TO FEEDSTOCK AND REFINERY PRODUCT
MASTER SERVICES AGREEMENT
DMS FEEDSTOCK PRODUCTS TRANSFER SERVICES
SCOPE OF SERVICES: DMS shall perform Services reasonably requested in order
to effectuate the transfer of Feedstock Products between the Refineries,
including but not limited to:
1. Scheduling movement of Feedstock Products between Refineries;
2. Determining the availability of LPG Cars for the transportation of
such Feedstock Products;
3. Securing the availability of trucks, barges, pipelines and other
related equipment for such transportation;
4. Daily dispatching of LPG Cars and other means of transporting
Feedstock Products;
5. Negotiating commercially reasonable freight rates for LPG Cars and
other means of transporting Feedstock Products; and
6. Any other Services mutually agreed to in writing by the Parties.
FEES: Reimbursement of all Transportation Costs or T&F Costs, as applicable,
* plus [REDACTED] per Gallon.
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EXHIBIT B-1
TO FEEDSTOCK AND REFINERY PRODUCT
MASTER SERVICES AGREEMENT
CPC RAIL TRANSPORTATION SERVICES
SCOPE OF SERVICES: CPC will perform the following Services in connection with
DMS's rail transportation of Products and Third-Party LPG:
1. Providing DMS with access to CPC's car tracking data systems
currently used (or planned) at mutually agreeable Refinery locations and DMS
locations, subject to the limitations set forth below in this Exhibit B-1 and
any and all limitations in the applicable Database Agreements;
2. Managing and operating Railtrac, BOL and RAS components of the
CPC Databases;
3. Managing accounting for the LPG Cars;
4. Using commercially reasonable efforts to: (i) provide rail car
capacity as requested by DMS for transportation Services; (ii) administer
Leases; (iii) negotiate (in consultation with DMS) new Lease(s) or the
purchase of LPG Cars, subject to the provisions of Exhibit B-1a; and (iv)
process Lease rental payments;
5. Providing the following maintenance services for LPG Cars:
(a) oversee shop work to ensure the use of appropriate repair
practices and procedures;
(b) coordinate LPG Car maintenance schedules with DMS;
(c) develop planned maintenance activity schedules for LPG Cars
in consultation with DMS;
(d) contract with maintenance shops and others for required LPG
Car maintenance work;
(e) review LPG Car maintenance invoices for appropriateness and
process them for payment; and
(f) manage the response to government-mandated rail car
maintenance programs for all LPG Cars, including
coordinating and reporting routine
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DOT compliance maintenance and testing activities (such as,
for example, safety valve and tank testing);
6. Providing a reasonable number of DMS personnel or contractors
with training on applicable CPC Databases (to the extent permitted under
license agreements applicable to such Databases) to permit such DMS personnel
or contractors to perform car tracking and scheduling functions;
7. Supervising and monitoring the following accounting functions
with respect to the LPG Cars:
(a) processing and payment of pertinent LPG Car-related invoices;
(b) processing of certain LPG Car-related receivables,
including but not limited to LPG Car mileage credits;
(c) providing to CPC and DMS pertinent tax reporting
information, as needed;
(d) processing LPG Car mileage equalization invoices;
(e) distributing and allocating costs among LPG Cars in
accordance with Exhibit B-1a; and
(f) summary reporting to DMS of pertinent accounting
information relating to the LPG Cars;
8. Updating UMLER, including the review of car mileage credit rating
records to ensure proper payment of credits due and making routine contacts
with AAR personnel regarding the foregoing and related matters;
9. Monitoring and participating in DOT and AAR related legislative
and other public affairs activities to gauge impact on CPC and DMS operations
hereunder;
10. Procuring CLM services and car mileage credit auditing services
on commercially reasonable terms;
11. Overseeing activities intended to enhance and update the CPC
Databases; and
12. Any other Services mutually agreed to in writing by the Parties.
OTHER PROVISIONS: It is understood and agreed that (a) DMS's access to the
Databases shall not include tracking systems for CPC Cars
other than the LPG Cars, and (b) CPC shall have no
obligation under any circumstances to add DMS-owned or
DMS-Leased rail cars to the
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CPC Databases, or to provide any Services with respect to
such rail cars. CPC may take all steps reasonably
necessary, consistent with the foregoing, to ensure the
integrity of the CPC Databases (including but not limited
to its car tracking data systems) for all CPC Cars. Any
incremental costs or expenses that are approved by DMS in
writing prior to incurring same and attributable to
providing DMS with access to CPC's car tracking data
systems or other CPC Databases (including but not limited
to amounts reasonably incurred in amending applicable
license agreements and increased fees and cost
reimbursements payable under such agreements) shall be
borne solely by DMS.
FEES: Calculated in accordance with the procedures set forth in Exhibit B-1a.
NOTICES: Notices to CPC in respect of CPC Services hereunder shall be given
in accordance with and subject to Section 12.9 of the Agreement to:
Chevron Products Company
Transportation Planning and Services Group
575 Lennon Lane
Section 515
Walnut Creek, California 94598
Attention: Manager, Rail Transportation Services
Telephone: 925/977-7117
Facsimile: 925/977-7066
With a copy to:
Vice President and General Counsel
Chevron Products Company
575 Market Street, Suite 2182
San Francisco, California 94105-2854
Telephone: 415/894-3232
Facsimile: 415/894-5489
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EXHIBIT B-1a
TO FEEDSTOCK AND REFINERY PRODUCT
MASTER SERVICES AGREEMENT
ACCOUNTING FOR CPC RAIL SERVICES
The following sets forth the methodology to account for and allocate
costs associated with CPC Rail Services:
A. LPG Cars will be assigned to particular Business Groups based on the
LPG Car Assignment Matrix attached hereto as Attachment 1 and made a
part hereof. The Business Groups will include the following:
REFINERIES DMS WHOLESALE REGIONS DMS SUPPLY REGIONS
El Paso Florida Midwest
El Segundo Midwest Northeast
Richmond Northeast Pacific Northwest (West Canada)
Salt Lake City Southeast Southeast (Louisiana)
Pascagoula Southwest Southwest
West West
These LPG Car Assignments and the Days (or portions thereof) assigned
to each of the Business Groups will then be utilized to allocate the
Total Fleet Costs (as defined in B below) among the various Business
Groups.
B. The total rail fleet costs associated with all LPG Cars (the "Total
Monthly Fleet Costs"), excluding the costs of any railcars assigned to
specific groups such as the LPG Cars assigned to (i) the Pascagoula
Refinery, (ii) Chevron Chemical and (iii) any other groups will be
calculated. The Total Monthly Fleet Costs will include the following
items:
1. LEASE COSTS
LPG Car Lease costs (including, but not limited to, rentals and
tax and other cost reimbursements to the owner of an LPG Car) are
payable Monthly in advance. These costs are paid by CPC on
receipt of invoice, according to Lease terms. Detailed cost
information on these Lease payments is retained in RAS on an LPG
Car-by-LPG Car basis.
2. MAINTENANCE/REPAIR COSTS
LPG Car maintenance expense is payable to contract shops and
railroads depending on actual work performed. These costs are
paid by CPC on receipt of invoice, according to contract terms.
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3. MATERIAL SUPPLY COSTS
Material purchase costs which are not a part of normally
scheduled maintenance activities (such as, for example, special
purchases or purchases in advance) are accrued in this category.
Invoices for material supply are paid by CPC according to invoice
terms. Material supply cost information is retained in RAS on an
LPG Car-by-LPG Car basis or Business Group basis when
appropriate. In certain situations, these costs will be billed
directly to the Business Group instead of being included as a
part of the Total Fleet Costs if CPC receives a request by such
Business Group to make such material supply purchase on behalf of
such Business Group.
4. INFORMATION SERVICES COSTS
Fees paid to contractors who supply CLM and car mileage data are
retained in RAS on a distributed basis.
5. MILEAGE EQUALIZATION COSTS
Mileage equalization charges are received from the AAR for all
rail cars owned by CPC and from each lessor for all rail cars
Leased by CPC. These costs are divided among all CPC Cars based
on their calculated share of excess empty trip miles (defined as
all empty miles in excess of 106% of loaded miles). This
calculation is done each calendar year by TP&S for all CPC Cars
using actual route mileage and shipment information in the CPC
Databases. Invoices for mileage equalization are usually received
in the third or fourth quarter for the preceding calendar year
and are processed on receipt. Mileage equalization charges for
each Business Group's account will be based on each Business
Group's actual LPG Car shipment activity and each such Business
Group's calculated share of excess empty miles.
6. INSPECTION FEES
Contract fees paid for mileage credit auditing services (provided
by RELAM) are paid by CPC and captured in RAS on a distributed
basis as Inspection Fees. The costs are divided among all CPC
Cars according to the number of CPC Cars assigned to each
Business Group with an equal share charged per CPC Car. A pro
rata portion of these costs will be included as a part of the
Total Fleet Cost based the portion of such costs allocated to the
LPG Cars.
7. PROPERTY TAX COSTS
Rail car property taxes applicable to the LPG Cars shall be paid
each calendar year by the CUSA tax group. These tax payments are
accrued monthly by the tax group and are charged to TP&S through
the CPC Databases. The accruals are captured on a pro rata basis
in RAS based on an approximation of the current value. During the
first quarter of each calendar year, detailed state-by-state
mileage reports are issued by TP&S. These reports are used by the
CUSA tax department to determine actual tax liabilities and
payments to the various
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government entities. The actual payments are then used to adjust
the current calendar year accruals for estimated tax payments.
8. DEPRECIATION EXPENSES
Depreciation expenses for LPG Cars owned by CPC are charged to
TP&S. Depreciation costs are calculated on CPC's standard
calculation for assets of this class.
9. GENERAL & ADMINISTRATIVE EXPENSES
General and administrative expenses ("G&A") include (but are not
limited to) labor and burden, office expense, travel,
miscellaneous expense, and computer systems charges for LPG Car
administration. G&A is divided equally among all CPC Cars. A
portion of G&A allocated to the LPG Cars will be included as a
portion to the Total Fleet Costs. G&A statements are generated
and billed internally by CPC, and will be allocated to DMS on an
equivalent basis to other internal customers served by TP&S. Such
G&A costs shall not include any G&A attributable to any LPG Cars
assigned to specific groups such as the LPG Cars assigned to (i)
the Pascagoula Refinery, (ii) Chevron Chemical and (iii) any
other groups.
10. CAPITAL RECOVERY
Depreciation for CPC-owned LPG Cars is billed at the established
rate according to GAAP. A substantial number of LPG Cars will be
retired at the mandatory 40 year age. Replacement of these LPG
Cars will be made in consultation with DMS; however, CPC reserves
the right to determine whether CPC should make this replacement
through capital investment. Other options would include Leasing
replacement LPG Cars from third Persons. In the event CPC elects
(after consultation with DMS) to purchase replacement LPG Cars,
the expenses charged to DMS will include a reasonable capital
cost recovery factor for each such LPG Car purchased subsequent
to September 1, 1996. Failure of the Parties to agree upon a
capital cost recovery factor for any such LPG Car within 30 Days
after CPC begins negotiations with DMS regarding such factor
shall be submitted to the alternative dispute resolution
procedures in Article 11. For purposes of determining whether a
capital cost recovery factor is "reasonable" for purposes of the
foregoing, the Parties agree that such factors shall not exceed
the cost payable for a long term lease of a comparable LPG Car.
C. After the Total Monthly Fleet Costs are determined, such costs shall be
billed by CPC to DMS and paid in accordance with Section 7.2, except
that, such amounts will be payable by DMS to CPC no later than ten (10)
Business Days following DMS's receipt of such Invoice. Notwithstanding
anything herein to the contrary, under certain circumstances when a
Refinery requires additional LPG Cars to standby to manage non-routine
operating situations, DMS, TP&S and the Refinery may elect by mutual
agreement to assign such non-routine standby LPG Cars to a separate
account. In such event, the costs
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associated with such standby LPG Cars will be allocated by TP&S directly
to such Refinery and shall not be billed to DMS.
D. DMS will then allocate the Total Monthly Fleet Costs among the various
Business Groups utilizing the LPG Cars based on the following:
1. First, DMS will calculate the average cost per LPG Car per day
AC/D = TMFC DIVIDED BY (TRCIS x Days)
Where: AC/D = Average Cost per LPG Car Per Day
TMFC = Total Monthly Fleet Costs
TRCIS = Total number of LPG Cars in service
during the applicable Month
Days = Days in the applicable Month
2. Second, DMS will use the Average Cost per LPG Car Per Day to
allocate the Total Monthly Fleet Costs among the various Business
Groups. This allocation will be based on the following formula for
each Business Group:
TBGC = AC/D x DCA
Where: TBGC = Total Business Group LPG Car Costs
AC/D = Average Cost per LPG Car Per Day
DCA = The sum of the number of days each
LPG Car is utilized by a particular
Business Group based on the
assignments made in accordance with
Section A.
3. Third, for each Refinery Business Group, DMS will calculate the Cost
Per Gallon attributable to each Refinery's use of LPG Cars based on
the following formula:
CPG = TBGC DIVIDED BY TVT
Where: CPG = Cost per Gallon of Product shipped
or received at a particular Refinery
TBGC = Total Business Group LPG Car Costs
TVT = Total Volume of Products
Transported (shipped or received)
during the applicable Month
If no Products were shipped to or from a particular Refinery
Business Group, the Total Business Group LPG Car Costs applicable
to such Refinery will be billed by DMS to CPC (for the account of
such Refinery Business Group) and paid in accordance with
Section 7.2, except that, such amounts will be payable by CPC to
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DMS no later than five (5) Business Days following CPC's receipt of
such Invoice. For the purpose of this Exhibit B1-a; the term
"Products" includes Propane, Normal Butane, Mixed Butane, Isobutane,
PP Mix, Offspec Product, Pentanes and Olefins.
4. Fourth, if Products were transferred to or from a particular
Refinery Business Group, the Total Business Group LPG Car Costs
applicable to such Refinery shall be allocated among the type of
Product movements based on the applicable Refinery Business
Group's Cost per Gallon as calculated in Paragraph 3 above. The
various types of Product movements that can be made and the
accounting treatment for same are set forth in Attachment 2
attached hereto and made a part hereof.
With respect to Product sales made by DMS on CPC's behalf, the costs
attributable to such Product movements will be utilized by DMS in
calculating the Netback Price payable to CPC and, with respect to
Feedstocks purchased by DMS on behalf of CPC, the costs attributable
to such Feedstock movements will be utilized by DMS in calculating
the Keep Whole Acquisition Price payable by CPC to DMS. Such costs
shall be calculated by multiplying the Monthly volumes of such
Product or Feedstock moved times the Cost per Gallon calculated in
accordance with Paragraph 3 above.
With respect to Products and Feedstocks transported to or from a
storage facility or to or from another CPC Refinery or other Chevron
facility on CPC's behalf, the costs attributable to such movements
will be billed by DMS to CPC (for the account of such Refinery
Business Group) and paid in accordance with Section 7.2, except
that, such amounts will be payable by CPC to DMS no later than five
(5) Business Days following CPC's receipt of such Invoice.
E. CPC shall pay to DMS any mileage credits DMS is entitled to as
set forth herein. Mileage credits (also referred to as "car hire
credits") received are captured in RAS on a LPG Car-by-LPG Car
basis. A portion of these credits shall be rebated to DMS for LPG
Cars that are assigned to the DMS Business Group based on the
freight expense paid by or on behalf of DMS. Due to delays in
processing mileage data by the AAR, mileage credits are paid
three (3) Months in arrears. RELAM is currently used for auditing
mileage credit payments to ensure that credits are received when
due. RELAM's fee is based on a percentage of actual underpayments
recovered. No reverse audit is presently performed - i.e., if
mileage credits are overpaid, there is no mechanism for detecting
the overpayment. If CPC is billed for overpayment of mileage
credits, DMS will be responsible for rebating a portion of the
overpayment attributable to that portion of the credit paid to
DMS as set forth above if the overpayment is attributable to LPG
Car movements performed by or on behalf of the DMS Business Group.
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ATTACHMENT 1 TO
EXHIBIT B-1a
<Table>
<Caption>
- --------------------------------------------------------------------------------
WAYBILL WAYBILL LOAD / PRODUCT OR ASSIGNMENT
ORIGIN DESTINATION EMPTY LAST
CONTENTS
- --------------------------------------------------------------------------------
Refinery Refinery Load Propane Refinery Group ID for
Destination
- --------------------------------------------------------------------------------
Refinery Refinery Load Butane Refinery Group ID for
Destination
- --------------------------------------------------------------------------------
Refinery Refinery Empty Propane Refinery Group ID for
Destination
- --------------------------------------------------------------------------------
Refinery Refinery Empty Butane Refinery Group ID for
Destination
- --------------------------------------------------------------------------------
Refinery Other Load Propane Refinery Group ID for Origin
- --------------------------------------------------------------------------------
Refinery Other Load Butane Refinery Group ID for Origin
- --------------------------------------------------------------------------------
Refinery Other Empty Propane Supply Group ID for Destination
- --------------------------------------------------------------------------------
Refinery Other Empty Butane Refinery Group ID for Origin
- --------------------------------------------------------------------------------
Other Refinery Load Propane Refinery Group ID for
Destination
- --------------------------------------------------------------------------------
Other Refinery Load Butane Refinery Group ID for
Destination
- --------------------------------------------------------------------------------
Other Refinery Empty Propane Refinery Group ID for
Destination
- --------------------------------------------------------------------------------
Other Refinery Empty Butane Refinery Group ID for
Destination
- --------------------------------------------------------------------------------
Other Other Load Propane Wholesale Group ID for
Destination
- --------------------------------------------------------------------------------
Other Other Load Butane Wholesale Group ID for
Destination
- --------------------------------------------------------------------------------
Other Other Empty Propane Supply Group ID for Destination
- --------------------------------------------------------------------------------
Other Other Empty Butane Supply Group ID for
Destination
- --------------------------------------------------------------------------------
</Table>
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ATTACHMENT 2 TO
EXHIBIT B-1a
Refinery LPG Rail Car Cost Accounting
<Table>
<Caption>
- -------------------------------------------------------------------------------
PRODUCT SALES PURCHASES INTER- REFINERY STORAGE/
MOVES PROCESSING
- -------------------------------------------------------------------------------
Propane Net of Sales Out Chevron Raw Operating Operating
of Refinery Material Cost Expenses Expenses
- -------------------------------------------------------------------------------
Normal Butane Net of Sales Out Chevron Raw Operating Operating
of Refinery Material Cost Expenses Expenses
- -------------------------------------------------------------------------------
Mixed Butane Net of Sales Out Chevron Raw Operating Operating
of Refinery Material Cost Expenses Expenses
- -------------------------------------------------------------------------------
ISO Butane Net of Sales Out Chevron Raw Operating Operating
of Refinery Material Cost Expenses Expenses
- -------------------------------------------------------------------------------
PP Mix Net of Sales Out Chevron Raw Operating Operating
of Refinery Material Cost Expenses Expenses
- -------------------------------------------------------------------------------
Off Spec Net of Sales Out Chevron Raw Operating Operating
of Refinery Material Cost Expenses Expenses
- -------------------------------------------------------------------------------
Pentanes Net of Sales Out Chevron Raw Operating Operating
of Refinery Material Cost Expenses Expenses
- -------------------------------------------------------------------------------
Olefins Net of Sales Out Chevron Raw Operating Operating
of Refinery Material Cost Expenses Expenses
- -------------------------------------------------------------------------------
</Table>
SALES - Going out from the Refinery to a Third Party or DMS if DMS has
elected to Store Product for its own account
PURCHASES - Going into the Refinery from locations other than a Chevron
Refinery
INTER-REFINERY MOVES- Moves between Chevron Refineries or between a
Chevron Refinery and another Chevron Facility
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EXHIBIT B-2
TO FEEDSTOCK AND REFINERY PRODUCT
MASTER SERVICES AGREEMENT
CPC FREIGHT AUDIT AND PAYMENT SERVICES
SCOPE OF SERVICES: Upon ninety (90) days prior written request by DMS, CPC will
perform the following Services for DMS related to the processing, pre-audit and
payment of DMS's commercial rail, truck and air freight invoices, including the
following:
1. Data management of DMS's billing and audit information, including:
(a) capture invoice data electronically or manually, as
appropriate;
(b) controlling and improving DMS carrier billing practices;
(c) maintaining and monitoring minimum billing requirements;
(d) developing Electronic Data Interface ("EDI")/Electronic
Funds Transfer ("EFT") partnerships with carriers;
(e) maintaining contract and tariff rates charged by DMS's
carriers for purposes of pre-auditing and validation that
carrier invoiced charges are correct;
(f) providing DMS with electronic B/L interfaces that are
necessary if DMS desires to use EDI;
(g) providing DMS with data repositories and archives; and
(h) maintaining control table and all other data in system-useable
form relating to DMS's arrangements with its carriers.
2. Financial controls over DMS's carrier expenses, including:
(a) automated ledger coding;
(b) validating invoices for duplicates, terms, rates and
extensions;
(c) resolving billing disputes with carriers; and
(d) performing accounts payable interfacing needed to
distribute freight expense to DMS's cost centers.
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<Page>
'Confidential Treatment Requested'
3. Providing DMS with general information Services related to
carrier billing and audits, including:
(a) making CPC's client/server and database related to DMS's
commercial freight activity and expense accessible to DMS for
purposes of both routine and customized reporting;
(b) providing a reasonable number of DMS employees or contractors
with training in use of CPC's carrier audit and billing
information management system; and
(c) managing a systems environment that makes detailed commercial
freight expense information available to DMS.
4. DMS shall comply with all applicable reasonable funding
requirements established by CPC.
* FEES: [REDACTED] per invoice (or other reasonable amount mutually agreed to
from time to time by the Parties) processed plus mutually agreeable amounts
for customized programming and other services required by DMS, based on DMS
specifications.
TERM: Month-to-Month, terminable by either Party's giving not less than 60
Days' written notice to the other Party.
OTHER PROVISIONS: DMS shall provide CPC with copies of all contracts with
carriers.
NOTICES: Notices to CPC in respect of CPC Services hereunder shall be given
in accordance with and subject to Section 12.9 of the Agreement to:
Chevron Products Company
Supervisor, Freight Information Services
P. 0. Box 4120
Concord, California 94524
Telephone: 510/680-3101
Facsimile: 510/680-3212
With a copy to:
Vice President and General Counsel
Chevron Products Company
575 Market Street, Suite 2182
San Francisco, California 94105-2854
Telephone: 415/894-3232
Facsimile: 415/894-5489
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EXHIBIT C
TO FEEDSTOCK AND REFINERY PRODUCT
MASTER SERVICES AGREEMENT
FORM OF WORK ORDER
REQUEST FOR SERVICES
This REQUEST FOR SERVICES (the "RFS") dated ____________________, 1996, is
made and entered into by and between Chevron Products Company, a division of
CUSA U.S.A. Inc., a Pennsylvania corporation (hereinafter referred to as "CPC")
and Dynegy Midstream Services, Limited Partnership, a Delaware limited
partnership (hereinafter referred to as "DMS"). This RFS has been executed and
delivered in connection with that certain Feedstock and Refinery Product Master
Services Agreement dated effective as of September 1, 1996 between CPC and DMS
(the "MSA"). Capitalized terms not defined in this RFS have the meanings given
them in the MSA.
For the mutual covenants and obligations set forth herein and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, DMS and CPC agree as follows:
1. SERVICES. The [DMS/CPC] Non-Exhibit Services to be rendered
pursuant to this RFS are described in ANNEX 1, which is attached hereto and
incorporated herein for all purposes.
2. PLACE OF PERFORMANCE: The [DMS/CPC] Non-Exhibit Services shall be
performed or delivered at the following location(s):_____________________.
3. DATE OF COMMENCEMENT AND COMPLETION OF THE SERVICES. The
[DMS/CPC] Non-Exhibit Services shall begin on _________________, proceeding
diligently, until all Services have been completed, which date of completion
shall be no later than ___________________.
4. PRICE OR RATE. The price or rate for Non-Exhibit Services performed or
delivered under this RFS (unless otherwise indicated, inclusive of any and all
labor costs and any and all third-Party costs, fees, prices, rates and rentals
of any kind) are described in ANNEX 1, which is attached hereto and incorporated
herein for all purposes. The Party providing the Services acknowledges and
agrees that if the prices or rates quoted are on a lump sum basis, such Party
shall not be entitled to the entire lump sum amount unless and until all of the
Services have been completed.
5. RELATIONSHIP OF RFS TO NSA. Except as specifically amended by this RFS,
(i) the terms and provisions of the MSA shall govern the rights and obligations
of the Parties hereto and (ii) the provisions of the MSA, including, without
limitation, the insurance and indemnity obligations of the Parties set forth
therein, are incorporated herein for all purposes.
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Notwithstanding the foregoing, if a term or provision of the MSA conflicts with
a term or provision of this RFS, this RFS shall control.
WITNESS THE EXECUTION HEREOF as of the date first hereinabove referenced.
CHEVRON PRODUCTS COMPANY
a Division of Chevron U.S.A. Inc.
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
DYNEGY MIDSTREAM SERVICES,
LIMITED PARTNERSHIP
By: Dynegy Midstream G.P., Inc.,
its General Partner
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
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ANNEX 1 TO REQUEST FOR SERVICES
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<Page>
EXHIBIT D
TO FEEDSTOCK AND REFINERY PRODUCT
MASTER SERVICES AGREEMENT
DYNEGY MIDSTREAM SERVICES ACKNOWLEDGMENT OF
CHEVRON PRODUCTS COMPANY COMPUTING SECURITY
PROCEDURES AND CONDITIONS
As a user who will be granted, or have, limited access to certain Chevron
Products Company Databases ("CPC Databases") Dynegy Midstream Services, Limited
Partnership ("DMS"), a Delaware limited partnership, with an office address at
1000 Louisiana Street, Suite 5800 Houston, Texas 77002, hereby acknowledges that
and agrees to the conditions set forth herein regarding its access to and right
to use the CPC Databases.
1. For the purpose of this Acknowledgment, the term "Network" shall
mean facilities and services for the transmission of data and information.
The term "System" shall mean a collection of electro-mechanical devices that
work together to store, retrieve and manipulate data and information under
control of a sequence of instruction steps known as a program which includes
computers described as host, control, mini computers, distributed computer
environments, personal computers and workstations.
2. GENERAL. DMS will be given certain Userid(s) (the "Userid") and will
thereby be granted access to certain CPC Databases, namely the Bill of Lading
System (BOL), Chevron Products Systems (CPS), Rail Car Accounting System (RAS)
and Rail Car Management System (Railtrac) for the uses and purposes as set forth
in (i) the Feedstock and Refinery Product Master Services Agreement (the "Master
Services Agreement"), (ii) the Feedstock Sale and Refinery Product Purchase
Agreements and (iii) the Refinery Product Purchase Agreement of even date
herewith between CPC and DMS (the Contracts.). Accordingly, DMS:
(a) will not use or access the CPC Databases for its own use or
for any use other than the uses and purposes as set forth in the Contracts;
(b) understands that the Userids are granted to it for its
exclusive use in connection with the uses and purposes as set forth in the
Contracts, is not to be shared with, or used by, any other user, and may be
revoked by CPC upon termination of the Contracts or for a material violation
of the provisions of this Acknowledgment;
(c) will adhere to applicable CPC regulations and procedures
governing computing security as provided herein;
(d) acknowledges that the access authority granted to DMS herein
does not in and of itself constitute System access authority and DMS will not
access data on Systems in the
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Network, other than those for which it has specifically been granted access
without the express written authorization of CPC;
(e) shall not gain, or attempt to gain, access to any
third-party Systems from the CPC Databases, unless authorized by CPC;
(f) shall not gain, or attempt to gain, access to any of the
CPC Databases from any third-party Systems, unless authorized by CPC;
(g) shall treat any passwords to the CPC Databases as
confidential information;
(h) will not attempt unauthorized access to the CPC Databases
or knowingly install a virus on a CPC Database or Network;
(i) will maintain its PC workstation devices which allow access
to CPC Databases in locked areas; and
(j) acknowledges that if CPC elects to permanently cease using any
of the CPC Databases, upon ninety (90) days advance written notice to DMS, CPC
shall have the right to cease providing such CPC Database service to DMS upon
the later to occur of (i) cessation of such ninety (90) day period or (ii) the
date CPC permanently ceases to use such CPC Database. In such event, CPC and DMS
will consult with each other to explore other commercially reasonable
alternatives that may be available to provide the same or similar Database
services.
3. CPS
(a) DMS's access to CPS will be restricted to specific CPS
functions and information previously used by Warren Petroleum Company
immediately prior to the Merger and which are necessary to the performance of
the Contracts.
(b) To the extent it becomes necessary for CPC to modify CPS to
restrict DMS's access to information and functions as set forth in the preceding
subparagraph, DMS and CPC shall mutually agree upon whether such costs should be
incurred and any such costs shall be shared equally by DMS and CPC.
(c) DMS will not require CPC to provide advance notification of
any changes to CPS unless such changes will materially affect DMS's access to
CPS and/or the functions and information to which DMS needs to carry on its
business.
(d) DMS and CPC acknowledge that any changes to CPS specific to
DMS's needs will be mutually agreed to by the parties.
(e) To the extent DMS requires CPS training, such training will be
conducted on CPC's premises and will be for DMS's account.
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4. DMS will adhere to CPC's password guidelines for Systems to which it
is issued Userids, a copy of which is attached hereto as Attachment 1.
5. DMS EMPLOYEES.
(a) DMS will notify CPC of its employees who will be direct users
of the CPC Databases (including specific names, locations and telephone
numbers) prior to any such employee being granted access to any CPC Database;
(b) DMS will cause all of its employees who will be direct users
of the CPC Databases to read this Acknowledgment and otherwise be familiar
with the terms and conditions set forth herein prior to being granted access
to any CPC Database;
(c) DMS will notify CPC of any changes in users within ten (10)
working days of the changes.
6. CONFIDENTIALITY OF CPC INFORMATION. Any information or data
relating to the CPC Databases to which DMS may have access is confidential
and proprietary to CPC, and will be subject to the confidentiality provisions
of the Contracts.
7. CONFIDENTIALITY OF DMS INFORMATION. Any information or data
inputted into the CPC Databases by DMS is confidential and proprietary to
DMS, and will be subject to the confidentiality provisions of the Contracts.
8. SOFTWARE. In connection with the uses and purposes as set forth
in the Contracts, DMS may need to use and have access to: (a) third-party
software licensed to CPC; and (b) if applicable, CPC proprietary software
which CPC will make available to DMS in connection therewith (hereinafter
referred to collectively as the "Software").
DMS will:
(a) use the software only for the purposes set forth herein
and/or in connection with the Contracts;
(b) not copy the Software, except for authorized back-ups;
(c) treat the Software as confidential information subject to
the same obligations as those set forth in the Contracts;
and
(d) upon termination of the Contracts, return the Software to
CPC, if applicable.
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9. INTELLECTUAL PROPERTY LAWS AND CONTRACT RESTRICTIONS. DMS will
comply with all contractual restrictions disclosed to it by CPC as well as
all copyright and other intellectual property laws applicable to its access
to the CPC Databases.
10. CONSEQUENCES OF MISUSE OR MISAPPROPRIATION OF CPC CONFIDENTIAL
INFORMATION. DMS recognizes that any misuse or misappropriation of the CPC
Databases and/or confidential information and/or data obtained therefrom could
result in termination of access to the CPC Databases.
11. BANNER. DMS will adhere to all online banners utilized in
connection with the CPC Databases.
12. MONITORING. Persons using the CPC Databases may have their use
monitored and recorded. All persons, by using these Databases, expressly
consent to such monitoring and recording.
13. This Acknowledgment is subject in all respects to the Master
Services Agreement of even date herewith between CPC and DMS. Any conflicts
between this Acknowledgment and the Master Services Agreement shall be
resolved in accordance with the terms and provisions of the Master Services
Agreement.
-56-
<Page>
SCHEDULE 3.4 (h)
-57-
<Page>
ANALYSIS AT ZERO NET PRESENT VALUE
(SALE PRICE REQUIRED TO GENERATE 7% RETURN)
- --------------------------------------------------------------------------------
TYPICAL NEW PRESSURE RAILCAR
CASH FLOW ANALYSIS
- --------------------------------------------------------------------------------
<Table>
CAR PURCHASE: AT YEAR THREE MONTHLY COMMERCIAL RATE FOR
INVESTMENT: $ 83,000 CAPITAL COST RECOVERY PAYMENT: $700
EFFECTIVE TAX RATE: 38% COST RECOVERY ADJUSTED EVERY: 3 YEARS
<Caption>
- --------------------------------------------------------------------------------
YEAR UNDEPR TAX DEPR TAX CAP COST TOTAL TAX CASH
TAX BASIS RATE (MACRS) DEPR RECOVERY EFFECT FLOW
- ---- ---------- ----------- ------- ----------- -------- ---------- --------
1 $0 0.00% $0 $0 $0 $0
2 $0 0.00% $0 Assumes $0 $0 $0
3 $83,000 14.29% $11,861 Cost $4,200 $2,911 ($75,889)
4 $71,139 24.49% $20,327 Recovery $8,400 $4,532 $12,932
5 $50,813 17.49% $14,517 Increases $8,400 $2,324 $10,724
6 $36,296 12.49% $10,367 3 Percent $8,526 $699 $9,225
7 $25,929 8.93% $7,412 Per $8,652 ($471) $8,181
8 $18,517 8.92% $7,404 Adjustment $8,652 ($474) $8,178
9 $11,114 8.93% $7,412 $8,782 ($521) $8,261
10 $3,702 4.46% $3,702 ----------- $8,912 ($1,980) $6,932
END OF TERM --------
11 $0 0.00% $0 SALE PRICE $69,315 ($26,340) $42,975
----------- --------
TOTALS 100.00% $83,000 $133,838 ($19,319) $31,520
--------- --------
IRR 7.0%
--------- --------
------------------------------ --------
NET PRESENT VALUE AT 7% $0
- --------------------------------------------------------------------------------
</Table>