HomeMy WebLinkAboutPR 14906: TOTAL PETROCHEMICALS USA - PRODUCT SALES AGREEMENT
q,-s_ ..
interoffice
RANDUM
To: Mayor, City Council, and City Manager
From: Mark T. Sokolow, City Attorney ~~ ~~~
Date: November 13, 2008
Subject.: P. R. No. 14906; Council Meeting November 18, 2008
Attached is P. R. No. 14906 authorizing a Product Sales
Agreement with. TOTAL Petrochemicals USA,. Inc. to provide certain
quantities of regular conventional gasoline and on-road diesel at
TOTAL's Port Arthur,. Texas Refinery, in the case of an emergency
or disaster with a term of the agreement from December. 31, 2008
to December 31, 2009.
MTS:gt
Attachment
cc: TOTAL
ATTN: Brent Helms
z.pr14906_memo
P. R. No. 14906
11/11/08 gt
RESOLIITION NO.
A RESOLIITION AIITHORIZING A PRODIICT .SALES
AGREEMENT WITH TOTAL PETROCHEMICALS IISA, INC.
TO PROVIDE CERTAIN..QIIANTITIES OF REGIILAR
CONVENTIONAL GASOLINE AND ON-ROAD DIESEL AT
TOTAL'S PORT ARTHIIR, TEAS REFINERY IN THE.
CASE OF AN EMERGENCY OR A DISASTER WITH A TERM
OF THE AGREEMENT FROM DECEMBER 31, 2008 TO
DECEMBER 31, 2009
WHEREAS, the City Council had entered into an Emergency
Agreement with TOTAL Petrochemicals USA, Inc., with said Agreement
expiring on December 31, 2008.; and
WHEREAS,. the City of Port Arthur desires to enter. into an
Emergency Contract with TOTAL Petrochemicals USA, Inc. as to
provide certain quantities of regular conventional gasoline and on-
road diesel at TOTAL's Port Arthur, Texas refinery, in the case of
an emergency or a disaster, with the term of the Agreement from
December 31, 2008 to December. 31, 2009,- as delineated in Exhibit
..A„
NOW THEREFORE, BE IT RESOLVED BY THE CITY COIINCIL OF THE CITY
OF PORT ARTHDR:
Section 1. 'ghat the facts and opinions in the preamble are
true and correct.
Section 2. That the City of Port Arthur is herein
authorized to enter into an Emergency Contract with TOTAL
Petrochemicals USA, Inc. as to. provide certain quantities of
regular conventional gasoline and on-road diesel at TOTAL's Port
z.pII4906
a o
Arthur, Texas refinery, in the case of an emergency or a disaster,
with the term of the Agreement from December 31, 2008 to December
31, 2009, as delineated. in Exhibit "A".
Section 3. That a copy of the caption of this Resolution
be spread upon the Minutes of the City Council.
READ, ADOPTED AND APPROVED on this day of
A.D., 2008, at a Meeting of the City Council of
the City of Port Arthur, by the following vote: AYES:
Mayor
NOES:
Mayor
ATTEST:
TERRI HANKS, ACTING CITY SECRETARY
APPROVED.AS TO FORM:
CITY ATTORNEY
APPROVED FOR ADMINI3TRATION:
CITY MANAGER
z_pr14906
EXHIBIT ~~A"
PRODUCT SALES AGREEMENT
This Product Sales Agreement, dated effective December 31, 2008 (the "Agreement"), is
by and between TOTAL PETROCHEMICALS USA, INC. ("TOTAL") and The City of Port
Arthur, Texas ("Port Arthur"). ,
WITNESSETH
WHEREAS, TOTAL and Port Arthur aze desirous of entering into an agreement whereby
after a disaster (as defined below) Port Arthur would have the right to purchase from TOTAL's
Port Arthur; Texas refinery certain quantities of regular conventional gasoline and on-road diesel;
and
NOW THEREFORE, in consideration of the premises and the mutual terms and
conditions hereinafter set forth, the Parties agree as follows:
I. DEFINITIONS AND RULES OF CONSTRUCTION
1.01 TOTAL and Port Arthur are sometimes referred to herein as the "Parties" and each may
be referred to as a "Party."
1.02 The word "includes` and its derivatives means "includes, but is not limited to" and
corresponding derivative expressions.
1.03 The singulaz shall include the plural and the plural shall include the singular and any
gender shall include all other genders, all as the meaning and context of this Agreement
shall require. Each defined term herein shall be equally applicable both to the singular
and the plural forms of the term so defined.
1.04 In connection with any action or event which by the terms hereof requires consent of a
party hereto, such consent shall not be unreasonably withheld, conditioned or delayed.
1.05 The term "person" herein may refer to an individual, corporation, limited liability
company, partnership, joint venture, association, joint stock company, trust, trustee,
unincorporated organization, Governmental Authority or any other form of entity, as
appropriate. References herein to a person are also to its permitted successors and
assigns.
1.06 The headings contained. in this Agreement aze for reference purposes only and shall not
affect in any way the meaning or interpretation of this Agreement.
1.07 Unless the context requires otherwise: (i) references to an "Article," and- "Section',
"subsection" or "Clause" refer to an article, section, subsection or clause of this
Agreement; (ii) references to an "Appendix," "Exhibit" or "Schedule" refer to an
appendix, exhibit or schedule attached to this Agreement, each of which is made a part
hereof for all purposes; (iii) the words "this Agreement," "hereof," "hereunder," "herein,"
"hereby," or words of similar import shall refer to this Agreement as a whole and not to a
Product Sales Agreement far the Ciry of Port Arthur KFF 10.25.08
1
particulaz. Article, Section, subsection, clause or other subdivision hereof, and (iv) the
term "cost" includes expense, and the term "expense' includes cost.
1.08 "Disaster' means a sudden calamitous event bringing great damage, loss or destruction as
(i) might be officially declared by the Mayor of the City of Port Arthur, Texas, and
agreed to have occurred by the Seller, or (ii) as might be officially declared for Port
Arthur or Jefferson County, Texas, by the Governor of the State of Texas or the President
of the United States.
1.09 "Buyer" means Port Arthur.
1.10 "Seller" means TOTAL.
I.11 "ULSD" means Ultra Low Sulfur Diesel.
1.12 "USGC" means U.S. Gulf Coast.
II. PURCHASE AND SALE
2.01 In the event of a Disaster, then during the term of the Disaster Port Arthur shall have a
right to purchase- and receive from TOTAL's Port Arthur, Texas refinery, the monthly
quantities of regulaz conventional gasoline of the appropriate quality for legal sale into the
Jefferson County, Texas region and on-road diesel set forth below, which aze produced at
TOTAL's refinery in Port Arthur, Texas and which are capable of being loaded into tank
trucks:
Monthly Quantities up to the lesser of
(i) 5,000 barrels of regular conventional gasoline of the appropriate quality for
legal sale into the Jefferson County, Texas region and 5,000 barrels of on-
road diesel, or
(ii) one-quarter (1/4) of the regular conventional gasoline of the appropriate
quality for legal sale into the Jefferson County,-Texas region and (1/4) of
the on-road diesel, which is not otherwise committed or needed in
connection with TOTAL's business or operations at Port Arthur, Texas or
elsewhere (as may be determined in TOTAL's discretion).
2.02 Port Arthur shall pay the following prices for the regular conventional gasoline or on-road
diesel which it purchases from TOTAL under this Agreement:
A. Regular Conventional Gasoline: The price shall be the monthly average for the
month of delivery of all posting days during such month as specified in Platt's
Oilgram mean Price Report for USGC pipeline conventional regular gasoline of
the appropriate quality for legal sale into the Jefferson County, Texas region.
B. On-Road Diesel: The price shall be the monthly average for the month of delivery
of all posting days during such month as specified in Platt's Oilgram mean Price
Report for USGC pipeline for Low Sulfur Diesel (420 ppm sulfur) or ULSD (12
ppm sulfur), depending on the grade delivered.
Product Sales Agreement for the City of Port Arthur KFF 10.25.08
2
2.03 The regular conventional gasoline or on-road diesel will be delivered into TOTAL
approved tank trucks provided by Port Arthur at the TOTAL Port Arthur Refinery site.
The tank trucks will be equipped with TOTAL approved custody transfer metering
devices which shall measure the amount of purchased regular conventional gasoline or on-
road diesel
2.04 TOTAL shall invoice Port Arthur after each loading of regular conventional gasoline or
on-road diesel. All invoices shall be hand delivered to Port Arthur or transmitted via
facsimile to the following address:
The City of Port Arthur, Texas
Attn: City Manager
444 4`h Street
Port Arthur; Texas 77641
Telephone: 409-983-8101
Fax: 409-409-6743
2.05 All correspondence concerning scheduling shall be addressed as follows:
The City of Port Arthur, Texas
Attn: City Manager
444 4`h Street
Port Arthur, Texas 77641
Telephone: 409-983-8101
TOTAL PETROCHEMICALS USA, INC.
Attn: Chris Abernethy
1201 Louisiana St., Ste 1800
Houston, Texas 77002
Telephone: 713-483-5651
All sales shall be priced as if all sales aze delivered FOB TOTAL's refinery at Port Arthur,
Texas.
III. TERM
3.01 The term of this Agreement will be from the effective date of this Agreement, through
December 31, 2009.
IV. SPECIFICATIONS
4.01 A. Regular Conventional Gasoline: Colonial pipeline specifications .for regulaz
conventional gasoline (87 R+M/2) of the appropriate. quality for legal sale into the
Jefferson County, Texas region.
Product Sales Agreement for the Ciry of Port Arthur KFF ] 0.25.08
3
B. On-Road Diesel: Colonial pipeline specifications for LSD 74 grade (420 ppm
sulfur) or ULSD 69 or 61 grade (12 ppm sulfur) depending on what grade is
delivered.
V. PAYMENT TERMS
5.01- All payments by Port Arthur to TOTAL for the products purchased under this Agreement
are to be made by wire transfer within thirty (30) days of the date of each invoice.
5.02 Wire payments made to TOTAL shall be sent to;
TOTAL PETROCHEMICALS USA, Inc.
JPMorganChase Bank
ABA # 021000021
Acct # 747497113
Swift Code: CHASUS33
VI. TERMINATION
6.01 This Agreement may be terminated by:
A. The mutual consent of the Parties; or
B. Port Arthur, if a material default shall be made by TOTAL in the observance or in
the due and timely performance by TOTAL of any of the covenants of TOTAL
contained herein, and such default shall continue un-remedied for a period of two
business days after TOTAL's receipt of written notice of default; or
C. TOTAL, if a material default shall be made by Port Arthur the observance or in the
due and timely performance by Port Arthur of any of the covenants of Port Arthur
contained herein, and such default shall continue un-remedied for a period of two
business days after Port Arthur's receipt of written notice of default; or
Written notice of termination shall be given by the terminating Party to the other Party.
6.02 Liability.
A. In the event of a termination of this Agreement pursuant to paragraphs 6.01 A
hereof, neither Party shall have any further obligations or liabilities under this
Agreement.
B. In the event of termination of this Agreement pursuant to pazagraph 6.01 B hereof,
Port Arthur may, in addition to any other remedy at law or in equity, bring suit for
damages against TOTAL.
C. In the event of termination of this Agreement pursuant to paragraph 6.01 C hereof;
TOTAL may, in addition to any other remedy at law or in equity, bring suit for
Product Sales Agreement for the City of Port Arthur KFF 10.25.08
4
damages against Port Arthur.
VII. MISCELLANEOUS
7.01 General Terms and Conditions
TOTAL's General Terms and Conditions for Purchase and Sale of Petroleum Products
(Revised 7/2006) attached hereto as Exhibit A and incorporated herein by this reference
(as amended from time to time, the "General Terms and Conditions') aze made a part of
this Agreement. In the event of conflict between this Agreement and the General Terms
and. Conditions, this Agreement shall prevail.
7.02 Notices
Any and all notices herein prescribed shall be transmitted via hand delivery, overnight
delivery,,facsimile or certified letter, return receipt requested; to the following respective
addresses:
TOTAL PETROCHEMICALS USA, INC.
Attn: Chris Abernethy
1201 Louisiana St.. Ste 1800 .
Houston. Texas 77002
Telephone: 713 -483 -5 651
Fax No.: 713-483-5700
The City of Port Arthur. Texas
Attn: City Manager
444 4th Street
Port Arthur, Texas 77641
Telephone: 409-983-8101
Fax: 409-409-6743
7.03 Counterparts
This Agreement may be executed in counterparts, each•of which shall be deemed an
original, but all of which shall coristitute one and the same instrument.
Product Sales Agreement far the City of Port Arthur KFF 1025.08
5
IN WITNESS WHEREOF, the Parties have duly executed this Agreement effective as of the
day of
TOTAL PETROCHEMICALS USA, INC.
2008.
By:
Name: Jeff Paules
Title: Mana>?er -Coordination & Trading
The City of Port Arthur, Texas
By:
Printed Name:
Title:
Produc[ Sales Agreement for the City of Port Arthur KFF 10.25.08
EffiBIT °A"
TOTAL PETROCHEMICALS USA, INC.
GENERAL TERMS AND CONDITIONS FOR
PURCHASE AND SALE OF PETROLEUM PRODUCTS
Product Description and Specifications, Quantity, Price, Special. Payment Tertns, Delivery Point, Delivery Period,
Shipment Mode, Shipment Ltstmctions, Designation of Independent Inspector and Laboratory Test Methods, and/or
any other terms and conditions, will be furnished in writing by TWX, TELEX, FAX, or other means, at the time of
formation of the specific agreement between the parties (the "Specific Agreement"), and shall be referred to by the
parties as the "Specific Temts and Conditions". The Specific Agreement shall incorporate these General Terms and
Conditions for short term and spot product purchase/sale agreements by reference therein. The Specific Teans and
Conditions contained within the Specific Agreement together with these General Terms and Conditions shall
constitute the parties' Agreement of Purchase/Sale ("Agreement"). In the event any of the terms, provisions or
general subject matters contained herein are covered by or aze in conflict with any terms.or conditions contained. in
the Specific Terms and Conditions then the temts and conditions contained in the Specific Terms and Conditions
shall control.
1. PAYMENT. Payment will be due from Buyer into Seller's designated bank account in U.S. dollars via
wire transfer of immediately available funds within the time period specified in the Specific Agreement A book or
stock transfer receipt shall be paid on the effective date of the transfer provided an appropriate invoice and
supporting documents have been received by Buyer at least two (2) working days prior to the effective date. If
invoices aze received prior to 12 noon C.S.T., the following working day will be considered day one (1). Any
amount not paid when due shall beaz interest from the due date (inclusive) until the date full payment is received by
Seller (exclusive) at a rate equal to the lesser of (a) one percent (1%) above the prime mte in effect at the opening of
business on the due date at the major lending institutions as quoted in the "Money Rates" section of the Wall Street
Journal, and (b) the maximum late of interest pemtitted under applicable law. Buyer shall pay all of Sellez's costs
(including, but not limited to, attome}fs fees and court costs) of collecting past due payments.
2. TITLE, RISK OF LOSS, AND DELIVERY. Title to, and-all risk of loss or damage of any product
delivered under this Agreement shall pass from Seller to Buyer as follows: (a) at the inlet flange when delivering into
any vessel with hoses; (b) at the permanent loading pipe flange when delivering into any vessel without hoses; (c) at the
outlet flange when receiving from any vessel with hoses; (d) at the vessel's permanent dischazge pipe flange when
receiving from any vessel without hoses; (e) as the product enter the receiving equipment when delivering into any track,
tank caz or pipeline; (f) as the product aze accepted by the carrier for shipment when delivering to any common carrier;
and g) as the product enters a storage tank when delivering into the storage tank from anon-vessel delivery system. In
the event the Seller or Buyer causes loss or damage to the products during delivery or receipt, the preceding title and risk
of loss provisions shall not apply. Instead,. the party causing the loss or damage shall pay for any loss or damage to the
product, regazdless of the physical location or timing of the loss or damage. The Seller shall always pay for the expense
of pumping the products to or from a delivery system or common comer. Delivery shall occur when title to the products
passes to Buyer.
3. MEASUREMENT.
Marine Vessels: A mutually acceptable independent inspector shall hand gauge and record static shore tank
measurements immediately before and immediately after delivery of the product to determine the volume of product
delivered. Each party shall pay one-half of the independent inspector's fees and chazges at the paint of delivery. If
relevant shore tank gauge measurements are not available, but appropriate meters aze available at or neaz the delivery
point, the operator of the facility at the delivery point shall read the meters at the time of delivery to determine the
volume of product delivered.
Pipelines: At the time of delivery, the operator shall read meters installed on the pipeline at or neaz the delivery
point to determine the volume of product delivered.
Tank TruckslTank Cars: The operator of the loading facility shall read meters located at or neaz the delivery point
to detertine Bill of Lading volume for each delivery of product into tank tracks andlor tank cars. If meters are not
available at or near the delivery point, the driver shall innage/ullage each tank track and/or tank car immediately
before and immediately after delivery of the product to determine the volume of product delivered. These
innages/ullages shall be converted to net delivered gallons based on each tank tmcks/tank cat's official calibration
tables.
ror~ireixoareawsisr, rt+c - - I -
rflxaFm~.nawers nmawe a sn~ mso ~ -
aev,semm~ws
All volumes of delivered product shall be corrected for temperature to 60 degrees Fahrenheit in accordance with
AST'M D-1250, Table 6B in its latest revision. The term "barrel" means 42 U.S. gallons of 231 cubic inches per
gallon. All measurements and/or tesu shall_be made in accordance with the latest stahdazds or guidelines published
by the API or ASTM; provided, however, that in the event a governmental agency with jurisdiction requires a certain
standard of measurement to be utilized in a given situation, that standard shall be used. All meters used for
measurements shall be proven within thirty (30) days immediately prior to the time of each delivery. The meter
operaior shall, upon request, allow the other party to review and copy relevant meter proving records.
4. CLAIMS. Claims as to shortage in quantity, defects in quality, or any other, including demurrage and
shifting, shall be made by written notice within nihery (90) days after the delivery in question. Otherwise, any such
claims shall be deemed to have been waived. Every notice of claim shall set forth fully the facts upon which the
claim is based and shall include full documentation in support of the claim.
5. TRANSPORTATION EQUIPMENT. Either party may decline to load, unload or permit loading or
unloading of any equipment which it reasonably determines to be contaminated, not suitable for carrying product, or
not in compliance with any governmental health,, environmental or safety regulation.
6. RIGHT TO WITNESS. Each party shall be entitled to have its representatives present during all loadings,
unloadings, tests and measurements involving product delivered hereunder. Both parties agree that their agents and
employees. will comply with all restrictions and safety regulations of the other party when such agents or employees
aze on the premises of the other part}fs designated facility and have been informed of such restrictions and safety
regulations.
7. LIMITED WARRANTY. Seller wanrnts that (a) the product delivered pursuant to the Specific Agreement
shall conform to the descriptions and specifications contained within the Specific Temrs and Conditions of the Specific
Agreement as well as any descriptions and specifications contained herein; .(b) the Seller had good and defensible title,
free and clear of liens, security interests, taxes and encumbrances on the product set forth in the Specific Agreement, at
time of delivery and transfer of title; (c) Seller bas the full right and authority to transfer such title and to affect delivery
of such product to the Buyer; and, (d) the product will be produced and delivered in full compliance with all applicable
governmental-laws, regulations and Presidential Proclamations.
EXCEPT AS STATED ABOVE OR IN THE SPECIFIC TERMS AND CONDITIONS, SELLER
M.AKFC NO OTHER WARRANTIES, EXPRESS OR IMPLIED, OF MERCHANTABILITY OR OF~
FITNESS FOR A PARTICULAR USE OR OTHERWISE, WHETHER THE PRODUCT
DELIVERED UNDER THLS AGREEMENT IS SINGULARLY OR IN COMBINATION WITH
OTHER SUBSTANCES OR IN ANY PROCESS.
8. OCTANE CERTIFICATION. In accordance with the Federal Trade Commission's requirements for
gasoline octane certification under the Petroleum Marketing Practices Act, Seller hereby certifies the accuracy of the
octane rating of any automotive gasoline descnbed in the Specific Agreement _ - _
9. BUYER'S WARRANTIES. The Buyer represents and warrants that it may lawfully receive, sell, use and
transport the product in interstate and intrastate co>timerce as applicable and shall furnish to the Seller any evidence
required to prove compliance with such laws, regulations and proclamations and 5le with governmental agencies reports
evidencing such compliance if required by such law, regulation or proclamation.
10. TAXES. Seller shall pay any and all taxes (except for property taxes, which taxes are governed by the state
law applicable thereto), fees, or other charges (with the exception of the product excise taxes noted below) imposed
or assessed by governmental or regulatory bodies, with respect to the product delivered under this Agreement, the
taxable incident of which occurs before the transfer of title to the product to Buyer.
Buyer shall pay any and all taxes (except for propeity taxes, which taxes aie governed by the state law applicable
thereto), fees, or other charges imposed or assessed by governmental or euguLatory bodies with respect to the product
delivered under this Agreement, the taxable incident of which occurs after transfer of title to the product to Buyer.
roruremonresuwsusti we ~ ~ - Z - - .
1EI80fPlM PROdKl3 PURGl1A5E l SAIF QldG
REVLStD "I/ILO6
Any and all taxes, fees, or other chazges imposed or assessed by governmental dr regulatory bodies, the taxable
incident of which is the transfer of title or the delivery of the product under this Agreement, or the receipt of payment
therefor, regardless of the character, method of calculation, or measure of the levy or assessment, shall be paid 6y the
party upon whom the tax, fee, or charge is imposed by law, except that Buyer shall reimbttrse Seller for all federal,
state, and local gasoline, motor fuel, sales, use, gross receipt, and other excise taxes or fees which aze imposed by
law on Seller.
In the event either party represents that it is a producer of petroleum products or as a gasoline registrant within the
meaning of the federal and state tax regulations or if either party is otherwise exempt from paying excise taxes, then
the party that makes such representations shall execute appropriate exemption certificates and provide the other party
with such certificates and other necessary documents to verify such exemption with respect.to the federal and state
petroleum taxes, as the law and regulations permit or require. Any party that fails to promptly supply such
exemption certificates and other verifying documents shall be deemed to not be exempt from the federal and state
petroleum products taxes and shall be responsible for any taxes accnring by virtue of such non-exemption.
11. FORCE MAJEURE. Each party shall be relieved from the performance of any obligation, other than the
obligation to make payments for amounts due hereunder, during the time and to the extent performance of such
obligation is prevented or restricted as a result of a force majeure event The term "force majeure" as used in this
Agreement shall mean any act, event, cause or occurrence beyond the reasonable control of the party affected, which
could not be prevented or substantially diminished by the use of reasonable diligence including but not limited to
acts of God, hurricanes, tropical storms, floods, ice, sabotage, waz, riots, fire, explosion, epidemics, mechanical
breakdowns, plant shutdowns (other than regularly scheduled tumazounds), strikes or other labor trouble, voluntary
or involuntary compliance with any law,.order, regulation,Yecomm6ndation or request of a governmental authority,
failure of the usual sources of raw materials, any necessity not to operate, or reduce operation of plants or equipment
in order to protect the safety of people or the environment, unavailability of public docking facilities or any other
crrcumstance beyond the reasonable control of the parry seeking excuse including Seller's or Buyer's inability to
perform all, or any part, of this Agreement due to Government action or directive. Nothing herein shall be deemed
to require a party to settle any demands of, or disputes with, laborers. At the conclusion of any force majeure event,
neither Buyer nor. Seller shall have any obligation to each other with respect to -any quantities of product not
delivered as a consequence of such force majeure event. No condition of force majeure shall operate to extend the
term of this Agreement.
Upon the occurrence of any of the force majeure events described in [his section, the party claiming force majeure
shall notify the other party promptly in writing of such event and, to the extent possible, inform the other party of the
expected duration of the force majeure event and [he volumes of product(s) to be affected by the suspension or
curtailment of performance under this Agreement. If the event of force majeure lasts for more than thirty (30) days,
this Agreement maybe terminated by either party upon written notice of temilnation to the other party:
Buyer may allocate its purchases among suppliers, including Seller, if a farce majeure condition exists. Seller shall
farrly and reasonably allocate its supply of product affected by the force majeure condition among its existing
customers only, which may include internal needs. In the event Seller declazes force majeure, Seller shall have the
right, but not the obligation to'purchase substitute product in order in order to fulfill dre terms of this Ageement
12. CREDIT. Prior to delivery of product under the temvs of this Agreement, Buyer shall (a) make prepaymentto
Seller, (b) cause a letter of credit.to be issued in favor of Seller in a form, in an amount and from a bank which.is
acceptable to Seller's Credit Department from time to time in Seller's sole discretion, or (c) give other security to Seller
in a manner, of a type, in a form and in an amount which may be deemed satisfactory to Seller's Credit Department in its
sole discretion. Buyer's complete compliance with this provision shall be a condition precedent to Seller's obligation to
deliver under the tem>s of this Ageement
The security requirements made of Buyer by Seller's Credit Department fiom time to time and any communications with
Seller's Credit Department from time to time shall in no way amend this Agreement or waive any rights Seller may have
at law or under the terms of this Agreement
13. FINANCIAL RESPONSIBILITY/NON-PERFORMANCE. If (a) either part}~s payments or deliveries
to the other party shall be is arrears; (b) the ability of Seller to deliver the product contracted for herein becomes
impaired or unsatisfactory in the opinion of the Buyer; (c) the financial responsibility of either party becomes
ror~~ a ws uv. we - 3 -
rErxoeeu~+ertooucrs wrtcw.se a s.~ tau
PEVISm 01/IV06 _
•impaired or unsatisfactory in the opinion of the other party; (d) either party makes an assignment of any general
arrangement for the benefit of creditors; or, (e) .there are instituted by or against either party proceedings in
banlazrptcy or under any insolvency law or law for reorganization, receivership, or dissolution, advance cash
payment or. satisfactory security shall be given upon demand. If such payment or security is not received within a
reasonable length of time from demand thereof, the party demanding such payment or security may claim default
under the temvs of this Agreement.
If a default occurs, the performing party (at its election) may (a) withhold shipments; (b) terminate this Agreement
without notice; and/or, (c) offset any or all amounts which the non-performing party owes to it (whether under this or
any other contract or otherwise and whether or not then due) against any or all amounts which it owes to the non-
performing party (whether under this or any other contract or otherwise and whether or not then due), provided that
any amount not then due which is included in such offset shall be discounted to present value as at the time of offset
(to take account of the period between the date of offset and the date.on which such amount would have otherwise
been due) at the. applicable Eurodollaz rate for that period as determined by the performing party in any
commercially reasonable manner.
The exercise by either party of any right reserved under this section shall be without prejudice to any claim for
damages or any other right under this agreement or applicable law.
14. OFFSET. In the event (a) Seller shall fail to make timely delivery of any product due and owing to the Buyer;
or, (b) either pally shall. faIl to make timely payment of any monies due and owing to the other paity, the Buyer in
situation (a) above or the other party in situation (b) above may offset any deliveries or payments due under this
Agreement or any other agreement between the parties. The word "part7~' for the purpose of this paragraph shall include
each party and its affiliates (including, but not limited to, both parent and subsidiary corporate entities): It is the intent of
the parties to-this Agreement to treat each party hereto and its respective affiliates (including, but not limited to, both
pazent and subsidiary corporate entities) as a single legal entity for the purposes of offset regazding debts and claims.
15. LIMITATIONS OF DAMAGES. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE
OTHER FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PLINITIVE OR INDIIiECT LOSSES
OR DAMAGES ARISING UNDER THIS AGREEMENT, INCLUDING AN`Y LOSSES OR DAMAGES FOR
LOSS OF PROFITS ORZOSS OF BUSINESS OPPORTUNITY. ANY CLAIM HEREUNDER MUST BE
FILED IN WRTTING WITHIN TWO YEARS FROM TAE POINT OF INCIDENT OR IT SHALL BE
DEEMED TO BE WAIVED.
16. ASSIGNMENT. Neither party may assign its rights or delegate its performance under this Agreement
without the prior written consent of the other party. Any attempted assignment or delegation without such consent
shall be void. Such consent shall not be unreasonably withheld. This Agreement shall be binding upon the
successors and permitted assigns of the parties hereto.
17. NON-WAIVER No waiver by either party of any breach by the other party of any of the covenants or
conditions of this Agreement shall be construed as a waiver of any succeeding breach of the same nature or of any
other covenant or condition hereof.
18. ENTIRE AGREEMENT. No statement or agreement, oral or written, made. prior to or at the signing of
this Agreement, shall vary or modify the written terms hereof,. and neither party shall claim any amendment to,
modification of, or release from any provision by mutual agreement-unless such statement or agreement is in writing,
signed by the other party and specifically states that it is an amendment to, modification of, or release from this
Agreement.
19. MARINE PROVISIONS. If delivery is to be made by waterborne transportation, then Chevron's Marine
Provisions shall apply (revised 1/2000) as revised by TOTAL shall apply to the extent such marine provisions aze
not covered by or in conflict with these General Terms and Conditions or to Specific Agreements.
20. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH
AND GOVERNED BY THE LAWS OF THE STATE OF TEXAS (WITHOUT REFERENCE TO ANY
CONFLICT OF LAW RULES), WITHOUT RECOURSE TO ARBITRATION. BOTH PARTIES CONSENT
TO THE EXCLUSIVE JURISDICTION OF THE FEDERAL DISTRICT COURTS OR COURTS OF THE
STATE OF TEXAS LOCATED WTI'HIN HARRIS COUNTY, TEXAS. WTI'HOUT LIMTfING THE
TOTAL PETrtOC11EFOGLS USA ING - ~ 4 -
mxOLEUM moDUns nmaus e s sA~ crer.
nev~mm~~ros -
•FORECOING IN ANY WAY, THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE
BVT'ERNATIONAL SALE OF GOODS, AND THE UNIDROTT PRINCIPLES OF INTERNATIONAL
COMMERCLAL CONTRACTS SHALL NOT APPLY TO OR GOVERN THLS AGREEMENT.
21. ATTORNEY'S FEES. In the event of a dispute between the parties in connection with this Agreement,
the prevailing party in the resolution of any such dispute, whether by litigation or otherwise, shall be entitled to full
recovery of all attorney's fees (including a reasonable hourly fee for in-house legal counsel), costs and expenses
incurred in connection therewith, including costs of court, from the non-prevailing party.
22. AUDIT RIGHTS. Each party shall have the right at all reasonable times, upon written request, to audit all
records of the other party pertinent to this Agreement to verify such part}~s compliance with the terms and conditions
of this Agreement. Notwithstanding the foregoing, each party shall be entitled to protect the wnfidentiality of any
information that it considers proprietary. If any audit conducted pursuant to this section reveals that there was an
inaccuracy or omission in the invoices submitted under this Agreement, the parties shall, within ten (10) days of a
request by either party therefor, meet to discuss the adjustments and/or payments that would be necessary to coaect
such inaccuracy or omission; provided, however, that no adjustments and/or payments shall be made in respect of
any inaccuracy or omission first. alleged after the second anniversary of the date of the invoice containing such
inaccuracy or omission. - - -
23. CONFLICT OF INTEREST. Each party warrants that it has giveh no commissions, payments, gifu of
substantial value, kickbacks, lavish or extensive entertainment or other things of substantial value to any employee or
agent of the other iri connection with this Agreement and acknowledges that the giving of any such payments, gifts,
entertainment, or other things of value is strictly in violation of this Agreement and may result in its cancellation.
24. ,INVALIDITY. If any part of this Agreement is declazed invalid for any reason, this ruling shall not affect
the validity of the rest of the Agreement or any other part thereof
25. .ELECTION OF REMEDIES. All rights and remedies of both parties hereunder aze cumulative, and the
election of one remedy shall not exclude another.
26. BUSINESS PRACTICES. (a) Each party shall comply with all laws and lawful regulations applicable to
any activities carried out in the name of or on behalf of the other party under the provisions of this Agreement and/or
any amendments to it.
(b) All financial settlements, billings and reports rendered by one party to the other party as provided for in this
agreement and/or any amendments to it will, to the best of [he knowledge and belief of the rendering party, reflect
properly the facts about all activities and transactions related to this agreement,.which data may be relied upon as
being complete and accurate in any further recording and reporting made by such other party for whatever purpose.
(c) Each party shall notify the other party promptly upon discovery of any instance where the notifying party fails to
comply with provision (a) above, or where the notifying party has reason to believe data covered by (b) above is no
longer accurate and complete.
27. US BUREAU OF CUSTOMS AND BORDER PROTECTION/US BUREAU OF INDUSTRY AND
SECURITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS
AGREEMENT, IF THEPETROLEUM PRODUCTS COVERED BY THIS AGREEMENT ARE TO BE
EXPORTED FROM THE UNTIED STATES OF AMERICA, BUYER SHALL, FOR PURPOSES OF THIS
AGREEMENT, BE THE °EXPORTER OF RECORD° AS THAT TERM IS USED BY US BUREAU OF
CUSTOMS AND BORDER PROTECTION ("CBP") AND/OR THE US BUREAU OF INDUSTRY AND
SECURITY ("BIS") AND BUYER SHALL COMPLY WITH ALL REGULATIONS (INCLUDING THOSE
RELATED TO REPORTING, FII.ING AND RECORD KEEPING) OF CBP AND/OR THE BLS. .
28 COMPLIANCE WITH LAWS. To the extent applicable, the parties shall comply with all laws, ordinances,
rules, codes, regulations and .lawful orders of any federal, state or locale governmental authority applicable to
performance of this Agreement. Each party shall certify to its compliance with this Section upon request by the other
Part7'•
rorwc reTrnaffimuTS USn,ma - - -5- .
PPiRdEIIM PRODUCTS PURp1A$Etc.,s GtM] .
REVISED inn i.a -
'29. ORIGIN OF AGREEMENT. This Agreement has been jointly prepared by both parties to this Agreement
and there shall be no presumptions regarding such preparation, which will be used against either party in connection
with any subsequent judicial construction of this agreement
30. WAIVER OF DECEPTIVE TRADE PRACTICES ACT.:BOTH PARTIES HEREBY WAIVE ALL
CAUSES OF ACTION AND REMEDIES TO WHICH THEY ARE OR MAY BECOME ENTITLED UNDER
THE TEXAS DECEPTIVE TRADE PRACTICES ACT.
31. DRAWBACK Seller reserves the right'to. claim, receive and retain at least 50% of the drawbacks on
imported duty-paid merchandise used in the manufacture of the product delivered under this Agreement. Whenever the
product is exported, Buyer shall promptly notify Seller and shall on request execute drawback claim forms and
assignments in favor of the Seller to enable it to establish its drawback rights under Custdms Regulations.
32. TIME IS OF THE ESSENCE. Tune is of the essence in the performance of this Agreement and failure by
either party to perform its obligations under this Agreement within the time periods specified, shall, at the option of the
other party, without liability, in addition to other rights or remedies, relieve the other party of any obligation to perfoan
'under this Agreement '
33. SECTION HEADINGS. The section headings aze for convenience only and shall not be interpreted in any
way to limit or change the subject matter of the General Terms and Conditions and the Specific Terms and.
Conditions of this Agreement.
TOTAL PETAOOff1.°ULS IAA MC - - 6 -
PEIROfEUM PROp1LT5 FlMONSE k SA[E 4T&4
REVISW °Illlp6