PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED PORTIONS ARE MARKED BY AN ASTERISK (*).
CHEVRON Warren Petroleum Company PROPANE SALES AGREEMENT
A Division of Chevron U.S.A. Inc.
P.O. Box 1589, Tulsa, OK 74102 * Phone (918) 560-4000
Prepare in original and five copies.
Purchaser Confirming Arrangements Made With
Empire Gas Corporation Marty Lerum
Address Arrangements Made By Date
P.O. Box 303 R.E. Siedell August 24, 1995
City, State, Zip Warren No. Purchaser No.
Lebanon, MO 65536 25077
1. Term: Warren will sell the following during period from
September 01, 1995
__ Expires on __________
_X_ Until April 30, 1996 and continuing year to year thereafter unless
and until canceled at the end of any contract year by either party
giving the other not less than 60 days written notice prior to the
proposed termination date.
Approx. Vol. Unit of Meas. Basis Del. Method Product Price
(net at 60F) Measure (see 2) Location (see 2) Cents/Gallon
Propane GPA Specifications See Attch. Gallons Other Hattiesburg, MS 0 See Item 6.2
A
2. Measurement/Delivery Method (see above)
V - Volumetric per API Tables 23 and 24 or 23A and 24A or 5A and 6A
T. Trucks Other Inventory Transfer M - Mass per GPA 8182
C. Tank Cars ________________________ O - Origin D - Destination
3. Product: Stenched _X_ Unstenched into storage
WARNING
It is important that you periodically remind your customers and employees
that even though ethyl mercaptan has been recognized as the best available
odorant for propane, no odorant is effective 100% of the time. The odor of
the gas may, under some circumstances, be reduced or lost if put into a tank
that is new or that has been exposed to the air for extended periods.
Electronic gas detectors (that emit a shrill sound in the presence of gas)
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should be recommended to your customers as an additional safety measure for
detecting leaks. Your customers should be familiar with the smell of the
odorant and their ability to smell it. Inform them that colds, allergies,
smoking, alcohol, age, competing odors and simply "getting used to" the odor
can cause them not to detect escaping gas. Familiarize yourself, your
employees and your customers with the potential limitations of the odorant
and the alleged phenomenon of "odor fade". Warren's Odorization Bulletins,
Safety Guide and other safety materials are available to help with this
familiarization. If you need additional information or materials to
properly educate your employees and customers, please contact the NPGA, your
state organization, or Warren Petroleum Company.
4. Seller send statements, invoices and shipping documentation to:
Ms. Gwen Hogan
Empire Gas Corporation
P.O. Box 303
Lebanon, MO 65536
5. Terms of Payment:
EFT 14 days.
6. Special Provisions:
1. This contract replaces Synergy PSA-49952 dated October 07, 1993.
2. Price will be the Mont Belvieu OPIS non-TET average * per gallon on
the 1st and 15th of each month or the next working day if no price
is quoted. 50% Of each month's volume will be priced on the 1st
and 50% on the 15th.
3. Product to be delivered into Storage Agreement 7184 for further
handling.
7. In addition to the above terms and conditions, the General Provisions
of this Product Sales Agreement and all Attachments are incorporated
herein by reference and made a part of this Agreement. If you are in
agreement with the foregoing terms and conditions including the
indemnity provision, please so indicate by signing below and returning
one copy of the Agreement to Warren.
Accepted and Agreed to: Warren Petroleum Company
Empire Gas Corporation A Division of Chevron U.S.A. Inc.
By /s/ Kris Lindsey By /s/ R.E. Siedell
___________________ ___________________
Kris Lindsey R.E. Siedell
Title V.P. Date 09/05/95 Title
District Manager
* Confidential material deleted.
______________________________
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GENERAL PROVISIONS PROPANE SALES
1. DELIVERIES
A. When delivery is point of origin, delivery shall be deemed to have
been completed:
1. To tank trucks when the product has actually been delivered
into the truck;
2. To tank cars when the carrier accepts the same for shipment;
3. To pipelines upon metering of the product:
B. When delivery is point of destination, delivery shall be deemed to
have been completed:
1. From tank trucks when truck has been placed at buyer's
facilities for unloading;
2. From tank cars when carrier delivers same at the destination;
C. Seller shall not be liable to Buyer for quantity or quality of
product, after completion of delivery. Buyer agrees that the
handling, care or use of product shall thereafter be at Buyer's
sole risk and expense.
2. MEASUREMENT - Measurement shall be done in the manner customarily
utilized at the point of delivery in accordance with one of the
following alternatives.
A. On all deliveries into/out of tank cars, the quantity shall be
determined by official tank car capacity tables, meters with no
vapor return, or by weighing, in accordance with GPA Publication
8162, 8173 and all revisions thereof.
B. On all deliveries into/out of transport and tank trunk equipment,
quantities shall be determined by meter with no vapor return, slip
tube, rotary gauging device or weighing, in accordance with GPA
Publication 8162, all appropriate GPA and API standards and all
revisions thereof.
C. On all deliveries into/out of pipelines, quantity shall be
determined by turbine or positive displacement pipeline meter in
accordance with API Manual of Petroleum Measurement Standards.
D. All quantities shall be corrected to 60 degrees Fahrenheit and
equilibrium vapor pressure at 60 degrees Fahrenheit.
E. Volume and compressibility correction factors shall be determined
from referenced API tables or computer programs used to generate
these tables.
3. PASSAGES OF TITLE AND WARRANTY OF TITLE - Title to the product and risk
of loss shall pass to Buyer upon delivery. Seller warrants to Buyer
that it has title to the product(s) delivered by it hereunder and the
right to deliver same, and agrees to indemnify, defend and hold the
Buyer harmless from and against any loss, claim or demand by reason of
any failure of such title or breach of this warranty. SELLER MAKES NO
OTHER WARRANTY WITH RESPECT TO THE PRODUCT OR OTHERWISE, INCLUDING,
WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR A
PARTICULAR PURPOSE.
4. TAXES - Any tax, fee, or other exaction, now or hereafter, levied or
assessed by any governmental authority upon, or as a result of the
transaction herein provided for, or the goods or source materials
thereof which are the subject matter of this Agreement, shall, if
payable by Seller, be paid by Buyer or demand by Seller. Any personal
property taxes levied or assessed by any governmental authority upon
the products covered by this Agreement shall be paid by the party
having title thereto at the time of such assessment. Buyer shall
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furnish Seller proper exemption certificate where tax exemption is
claimed on any product(s) delivered hereunder.
5. GOVERNMENT REGULATIONS & LAW - Seller warrants that the product it
delivers hereunder will be produced and delivered in full compliance
will all applicable federal and state laws and regulations and all
Presidential proclamations which may be applicable. This agreement
shall be subject to jurisdiction of, governed by and construed in
accordance with the laws of the State of Oklahoma including the Uniform
Commercial Code. Seller agrees to comply with the provisions contained
in Exhibit "A" if attached hereto, to the extent that such provisions
are legally applicable to Seller.
6. FORCE MAJEURE - If either party is rendered unable, wholly or in part,
to perform its obligations under this Agreement (other than to make
payments due hereunder) due to force majeure, defined herein as any
cause or causes beyond its control, then in any such event, it is
agreed that the affected party shall give prompt notice and full
particulars of such force majeure to the other party. The
obligations of the affected party shall be suspended for the duration
of such inability to perform but for no longer period and such cause
shall, so far as possible, be remedied with all reasonable dispatch.
7. ASSIGNMENT - This Agreement shall extend to and be binding upon the
parties hereto, their heirs, successors and assigns; but it is
expressly agreed that neither party shall voluntarily assign this
Agreement without the prior written consent of the other.
8. NOTICE - Any notice hereunder shall be in writing and shall be
delivered personally, by mail, by fax, by telex, or by telegram to the
address set forth on the attached agreement, unless changed by notice.
Such notice shall be deemed to have been given on the date of the
delivery thereof.
9. WAIVER - The waiver by either party of the breach of any provision
hereof by the other party shall not be deemed to be a waiver of the
breach of any other provision or provisions hereof or of any subsequent
or continuing breach of such provision or provisions.
10. ALTERATIONS - No oral promises, agreements or warranties shall be
deemed a part hereof, nor shall any alteration or amendment of this
Agreement, or waiver of any of its provisions, be binding upon either
party hereto unless the same be in writing, signed by the party
charged.
11. INVOICES AND TERMS OF PAYMENT - Invoices will be prepared by Seller and
transmitted to the Buyer from time to time during the month. Unless
otherwise specified, payment is due within ten (10) days after receipt
of invoice. If payment is not made within the time allowed under this
Agreement, then Seller may charge interest on the unpaid balance at the
lesser of 1 1/2% per month or the highest rate permitted by Oklahoma
law and Seller shall be entitled to recover its reasonable costs of
collection, including attorney's fee.
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12. FINANCIAL RESPONSIBILITY - If in the judgment of Seller the financial
responsibility of Buyer becomes impaired or unsatisfactory, advance
cash payments or acceptable security (including, but not limited to a
letter of credit from a financial institution acceptable to Seller) may
be required by Seller, and if Buyer fails to provide such, Seller may
without waiving any rights or remedies, withhold further deliveries
until such payment or security is received. Buyer's duty to provide
the hereinabove credit assurance shall be a condition precedent to
Seller's obligation to perform under this agreement.
13. 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. Any representative(s) authorized by either party may audit
the applicable records of the other party solely for the purpose of
determining whether there has been compliance with this paragraph.
14. AUDIT - Each party and its authorized representatives shall have access
to the accounting records and other documents maintained by the other
party which relate to the product being sold to the other party under
this Agreement and shall have the right to audit such records once a
year at any reasonable time or times during the term of this Agreement
and for two years after the year in which this Agreement terminates.
Neither party shall make claim on the other for any adjustment after
said two-year period.
15. TANK CARS - If Seller's tank cars are used and they are not unloaded
and returned to railroad, Buyer shall be liable to Seller for rental at
the rate of $50.00 for each day or fraction thereof in excess of 7
days. Tank cars shall not be diverted without Seller's written
consent.
16. QUALITY - All products delivered under this Agreement shall meet the
latest GPA specifications for that product and contain no deleterious
substances. Product delivered under this agreement shall not contain
concentrations of any contaminants that may make it or its components
commercially unacceptable in general industry application. Any
requirements of buyer pertaining to potential contaminants and/or
specific hydrocarbon composition not listed in the product
specification must be identified by buyer and allowable concentrations
agreed to in writing by both parties prior to delivery.
17. SHORTAGE OF PRODUCTS - Due to uncertainties in the supply/demand
situation, Warren may not have sufficient supplies of product to be
delivered hereunder to meet the full requirements of all of its
customers, contract or otherwise. Whenever that situation exists,
Warren shall have, in addition to any other rights Warren may have
under this Agreement, the right to reduce deliveries of such product on
any basis which in Warren's opinion is equitable, allowing for such
priorities to such classes of customers as Warren deems appropriate.
If any such reduction occurs, Buyer shall have the option to terminate
this Agreement as to any or all products by fifteen (15) day's notice,
given within thirty (30) days of the notice of reduction.
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18. BRAND NAMES - Unless otherwise specifically agreed, Buyer shall not
represent or permit any other person to represent, that the product
delivered hereunder is the product of Warren. All products delivered
to Buyer hereunder shall be used or sold under Buyer's own brand names
or under brand names approved by Warren, and Buyer shall not authorize
or permit said product to be used or sold under any other brand names.
19. CONDUCT OF BUYER'S BUSINESS - Buyer in the performance of this
Agreement is engaged in an independent business and nothing herein
contained shall be construed as giving Warren any right to control
Buyer in any way in its performance of its business. Warren has no
right to exercise control over any of Buyer's employees. All employees
of Buyer shall be entirely under the control and direction of Buyer who
shall be responsible for their actions and omissions.
20. INDEMNITY - If Warren provides adequate documentation of the
odorization required by this contract, buyer agrees to defend and hold
Warren harmless from all expenses (including attorney's fees) or
liability arising from any claims of whatever kind due to injuries or
damages which occur after delivery to Buyer in connection with the
transportation, use or handling of product covered hereunder. BUYER'S
INDEMNITY OBLIGATION SHALL BE APPLICABLE EVEN IF SUCH DAMAGES ARE
DETERMINED TO HAVE BEEN PARTLY CAUSED BY THE FAULT OF SELLER OR IF
LIABILITY WITHOUT FAULT IS IMPOSED ON SELLER, THE ONLY EXCEPTION TO
SUCH OBLIGATION BEING WHERE THE FAULT OF SELLER IS DETERMINED TO BE THE
SOLE CAUSE OF SUCH DAMAGES.
21. PRICES - Prices hereunder may be changed at any time by Warren upon
notice given either electronically (i.e. fax, DTN or phone) or by U.S.
Mail, effective when sent. If any such notice shall increase Warren's
price to Buyer at any shipping point or destination above Warren's
highest price for such product or freight in effect during the elapsed
portion of the calendar year in which Warren's notice is effective,
Buyer may by written notice to Warren given and effective within
fifteen (15) days from the date of Warren's notice, terminate this
contract with respect to such shipping point or destination.
22. ODORIZATION - Unless otherwise specifically agreed in writing, Buyer
hereby requests that the propane sold hereunder be odorized with not
less than 1.0 lb. of ethyl mercaptan per 10,000 gallons. Buyer
warrants that compliance with its request will satisfy all applicable
legal requirements.
23. PRODUCT HAZARDS - Buyer acknowledges receipt of Warren's Safety
Bulletin for odorized propane and is knowledgeable of the hazards or
risks in handling or using the product. Buyer agrees that Buyer shall
inform its employees, contractors and customers of any hazards or
risks associated with the product. Warren will make available to Buyer
Warning Decals that are intended to be placed on consumers tanks or
equipment and copies of its Safety Guide. Buyer agrees to supply its
customers with these materials or other reasonably equivalent safety
material to warn them of the potential hazards or risks in using
odorized propane.
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24. INCIDENT - Buyer shall notify Warren as soon as possible after it
becomes aware of any fires or explosions occurring at locations propane
purchased hereunder is used. Buyer will inform Warren if said product
is involved and will fully cooperate with Warren in obtaining a propane
sample and any other investigation Warren deems necessary.
ATTACHMENT A TO
PROPANE SALES AGREEMENT NO. 25077
1. Trademark. Buyer acknowledges that the CHEVRON and WARRENGAS
Trademarks are valuable property rights belonging to Chevron
Corporation and its subsidiaries, including Chevron U.S.A. Inc. and
that any use thereof by Buyer in connection with this agreement is
solely for the purposes of advertising products obtained from such
subsidiaries. Upon termination of this agreement, Buyer agrees that it
will make no further use of such trademarks or any other mark, name or
designs confusingly similar therewith.
2. Quantity. During the term hereof, Buyer agrees to buy the product
herein specified in monthly quantities of not less than the minimum set
forth below and Warren agrees to sell said quantities to Buyer. Buyer
shall purchase such quantities as evenly as possibly during each month.
If during any period of this agreement the quantity of product Warren
is obligated to deliver to Buyer is prescribed by government rules,
regulations or orders, then the quantity of product covered by this
agreement shall be the quantity so prescribed for such period and Buyer
agrees to buy and Warren agrees to sell such quantity.
Volume (in Thousands of Gallons)
Volume Volume
April 1300 ________ October -0- ________
May -0- ________ November -0- ________
June -0- ________ December -0- ________
July -0- ________ January -0- ________
August -0- ________ February -0- ________
September -0- ________ March -1- ________
See Attachment A of Storage Agreement 7184 for estimated tank car volumes.
For the purpose of determining compliance with the above quantity schedule,
purchase or product shall be allocated to the month in which shipment is
made. Should either party fail to comply in any amount with the above
schedule, the other party may elect to terminate this agreement by mailing
notice of such termination on or before the 20th day of the succeeding
month. If the Buyer fails to purchase 100% of the above specified minimum
monthly quantities during any month or months and Warren does not elect to
terminate this agreement, Warren shall not be obligated hereunder to sell to
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Buyer in any of the succeeding six months more than one and one half times
the average monthly quantity which Buyer actually purchased during the
preceding six-month period.
When delivery is into tank trucks furnished by Buyer, the delivery ticket
showing the quantity delivered shall be signed by the loader as the agent of
Warren and by the truck driver as the agent of the Buyer; such quantities
shall be conclusively presumed to have been delivered to Buyer.
On or before the 1st day of each month Buyer shall inform Warren of
quantities required during such month, delivery dates, and when applicable,
destinations of each shipment. Warren shall not be obligated to ship less
than a tank car or tank truck load.
3. Method of Delivery: ________ By tank trucks furnished by Buyer.
See Storage Agreement 7184 ________ By tank trucks furnished by Warren.
________ By tank cars furnished by _______
with a capacity of _______ gallons
each.
PRICE INFORMATION
_________________
Prices in effect as of , 19 ____
Sales based on _X_ Shipping point price or Destination price
Shipping or Price in Freight
Pricing Points Destinations Product Cents/Gallons Charges
______________ ____________ _______ _____________ ________