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EXHIBIT 10.94
AGREEMENT FOR MAINTENANCE AND OPERATION
OF IMTT-BAYONNE CHEM SOUTH BOILERS
This AGREEMENT FOR MAINTENANCE AND OPERATION OF IMTT-BAYONNE CHEM SOUTH
BOILERS (this "Agreement") is entered into this 3rd day of April, 1998, by and
between IMTT-BAYONNE, a Delaware partnership ("Owner"), and COGEN TECHNOLOGIES
NJ VENTURE, a New Jersey joint venture ("Contractor").
W I T N E S S E T H:
WHEREAS, Owner owns and operates a tank terminal facility located at
Bayonne, New Jersey (the "Tank Facility"); and
WHEREAS, Contractor owns and operates a cogeneration plant at Bayonne,
New Jersey, located on land leased from Owner (the "Power Plant"); and
WHEREAS, pursuant to that certain Agreement for the Sale of Steam and
Electricity dated June 13, 1985 (as amended from time to time, the "Power/Steam
Purchase Agreement"), by and between Cogen Technologies NJ, Inc., as "Seller,"
and Owner, as "Buyer," Contractor sells steam and electricity to Owner; and
WHEREAS, pursuant to that certain Operation and Maintenance Agreement
dated June 6, 1997 (as amended from time to time, the "O&M Agreement"), by and
between Contractor, as "Owner," and General Electric Company ("GE"), as
"Operator," GE provides operations and maintenance services to Contractor for
the Power Plant; and
WHEREAS, Owner desires to engage the services of Contractor to operate
and maintain the Standby Boilers (hereinafter defined) located at the Chem
South Terminal of the Tank Facility; and
WHEREAS, Contractor desires to operate and maintain the Standby
Boilers; and
WHEREAS, Owner and Contractor desire to enter into this Agreement in
order to set forth their agreements relative to the operation and maintenance
of the Standby Boilers;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. The Standby Boilers. The "Standby Boilers" shall mean the two
Xxxxxxx-Xxxxxx boilers located at the Chem South Terminal (the "Terminal") of
the Tank Facility, each (i) with a capacity of 20,000 lbs. per hour/2 million
BTU/hour, (ii) fired on natural gas or No. 4 fuel oil, (iii) pressure rated
from 125 psi to 150 psi, (iv) 400/500 horsepower and (v) of which are operated
to provide steam to Owner in the event of
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the loss of steam from the Power Plant, and shall include the associated water
softening equipment and associated piping, valves, auxiliary equipment and
controls which are required and installed for the purpose of operating the
boilers and located within the physical boundaries of the flanges at which fuel
and water enter the back-up boiler facility or the water softening equipment
and the flanges at which steam leaves the facility, and any mutually agreed
upon replacements of the foregoing.
2. Services. Contractor hereby agrees to maintain, test and operate the
Standby Boilers and arrange for the certification of the Standby Boilers so as
to produce steam in accordance with and subject to (i) all applicable laws and
regulations known to Contractor, (ii) the physical constraints of Standby
Boilers as established by the nameplates and instruction manuals supplied by
Owner to Contractor and (iii) good practice consistent with the safe operation
of industrial boilers of the type, quality, age and condition of the Standby
Boilers, as follows (collectively, the "Services"):
(1) Start-up, operation and shut-down of Standby Boilers;
(2) Monitor and maintain Standby Boilers as required to ensure reliable
operation;
(3) Lubrication, preventative and corrective maintenance of the Standby
Boilers which is required to reasonably ensure the reliability of the
Standby Boilers to supply steam when and if required in the event of
a loss of Owner's primary steam supply;
(4) Operation of the Standby Boilers in compliance with all environmental
laws, regulations and permits applicable to the Standby Boilers;
(5) Arrange for, and coordinate at Owner's expense, all inspections,
maintenance and testing required to maintain certification of the
Standby Boilers and any permits which Owner is required to obtain in
connection therewith;
(6) Test fire each Standby Boiler for at least one hour in each calendar
quarter to demonstrate the reliability of the Standby Boilers;
(7) Coordinate all operation of the Standby Boilers with Owner's Manager
of Power Systems, currently Xxxxx Xxxxxxxx, or in his absence with
Owner's Traffic Department;
(8) In the event that Owner's primary steam supply from Contractor under
the Power/Steam Purchase Agreement is not available to Owner and
Owner notifies Contractor in writing to begin operation of the
Standby Boilers, operate one or both of the Standby Boilers on an
emergency back-up basis ("Emergency Operation");
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(9) Recommend to Owner and cause to be done, upon Owner's approval, any
maintenance activities on the Standby Boilers which are required to
satisfy all existing governmental laws, rules, regulations and codes
known to Contractor pertaining to steam generating equipment and
pressure vessels;
(10) Following timely notification by Contractor to Owner and upon written
approval from Owner, carry out, or cause to be carried out,
operations and testing of the Standby Boilers to enable Owner to
obtain and maintain proper and timely certifications according to
applicable requirements of all existing governmental laws, rules,
regulations and codes known to Contractor;
(11) Staff its maintenance and operations crew with properly certified and
licensed employees to perform the work or recommend to Owner
subcontractors, whom Contractor may employ, as may be required who
possess such licenses or certifications;
(12) Assist Owner in obtaining and maintaining compliance with all permits
applicable to the Standby Boilers, which assistance includes, but is
not limited to, arranging for inspections or testing and obtaining
samples and collecting data; provided, however, Owner shall
ultimately be responsible for all such permits; and
(13) Upon written notification by Owner to Contractor, start-up the
Standby Boilers and proceed without unreasonable delay with such
start-up activities.
3. Term. The term of this Agreement shall commence on the date hereof and,
unless sooner terminated pursuant to the terms hereof, shall terminate on the
date on which the Power/Steam Purchase Agreement terminates.
4. Subcontractors. The parties acknowledge and agree that Contractor will
subcontract the performance of the Services to GE and/or to others, and Owner
hereby approves the subcontracting of the performance of the Services to GE.
All other subcontractors utilized by Contractor in performance of the Services
shall be subject to Owner's prior written approval, which approval shall not be
unreasonably withheld, conditioned or delayed. The provisions of this Agreement
shall apply to all subcontractors and their respective employees as if they
were employees of Contractor. Contractor shall not be responsible if any delay
in approval of subcontractors or other costs by Owner or the non-payment by
Owner of any moneys due hereunder results in the Standby Boilers not being
available to produce steam if requested by Owner.
5. Equipment, Supplies, Materials, Tools and Consumables. Owner shall be
responsible for the payment of cost of all equipment, supplies, materials,
tools and consumables utilized in the performance of the Services. Unless an
emergency dictates otherwise, Contractor shall purchase any tools, materials,
supplies and equipment necessary for performance of the Services, including,
without limitation, spares,
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pursuant to Owner's purchase order number and Owner shall pay for such items
directly to the vendor thereof; provided, however, Contractor may procure
incidentals and consumables routinely used by Contractor in performance of the
Services directly from the vendors thereof, and the cost of such items shall be
reimbursed to Contractor by Owner.
6. Permits. Permit costs shall be paid directly by Owner to the applicable
permit or certification authorities. Owner shall be responsible for obtaining
and maintaining any and all permits and approvals required to operate the
Standby Boilers.
7. Consideration for the Services. For performance of the Services, Owner
shall pay to Contractor (i) a fee of Five Thousand and 00/100 Dollars
($5,000.00) per calendar quarter, ending March 31st, June 30th, September 30th
and December 31st of each year (the "O&M Fee"), (ii) Contractor's actual cost
plus fifteen percent (15%) for all equipment, replacements, supplies, materials,
tools and consumables used in or necessitated by the performance of the
Services and (iii) Contractor's actual cost plus fifteen percent (15%) for all
subcontracted services, exclusive of services provided by GE, used in the
performance of the Services; provided, however, there shall be no markup on the
O&M Fee. The O&M Fee for any partial calendar quarters shall be prorated. In
addition, Owner shall pay to Contractor One Hundred and 00/100 Dollars
($100.00) per hour (the "Emergency Operation/Testing Fee") for (i) Emergency
Operation of the Standby Boilers, commencing when Owner gives notice to
Contractor to begin Emergency Operation and continuing until the Standby
Boilers are shut down and Owner's primary steam supply is restored and (ii)
periods of test firing of the Standby Boilers during routine testing and post
repair testing; provided, however, there shall be no markup on the Emergency
Operation/Testing Fee. Payment for any additional services not included within
the definition of Services and that are agreed to by Owner and Contractor shall
be on the basis of a proposal to be submitted by Contractor.
8. Invoicing. Contractor shall invoice Owner quarterly for all moneys
due Contractor, and Owner shall pay such invoices within thirty (30) days of
receipt thereof. All invoices are to be sent to IMTT-Bayonne, X.X. Xxx 00,
Xxxxxxx, Xxx Xxxxxx 00000 to the attention of Accounts Payable: Xxxxxx Xxxxxxx.
Prior to payment Contractor agrees to provide, if requested by Owner the
following:
(1) A waiver and release of liens arising out of or as a result of the
performance of the Services;
(2) Proof that bills for materials and equipment, and other indebtedness
connected with the Services have been paid or reasonable evidence
thereof; and
(3) Reasonable evidence that work areas have been properly cleaned up
with all debris disposed of properly and legally.
9. Late Payments. All payments that are past due shall accrue interest
from the date such payments are due until such payments are made at a per annum
rate
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equal to the lesser of (i) twelve percent (12%) or (ii) the maximum lawful
nonusurious rate of interest that may be charged under applicable law.
10. Owner's Responsibilities. Owner shall be responsible for, and shall
(i) maintain, the building that houses the Standby Boilers and (ii) operate and
maintain the heating, ventilation and air conditioning system that services
such building.
11. Additional Services. Any and all services additional to the Services
included within the definition of Services must be authorized by Owner's
Manager of Power Systems, Xxxxx Xxxxxxxx, or such other person specified by
Owner in writing, and by an authorized representative of Contractor, in writing
before such additional services are commenced; provided, however, in the event
of an emergency, Contractor may take action and incur costs as necessary, which
costs will be paid by Owner to Contractor or to the provider of same, as
provided for in Section 7 above, provided that Owner's Traffic Department is
notified as soon as reasonably possible.
12. Insurance. In connection with the performance of the Services,
Contractor shall cause GE to provide insurance as required of GE pursuant to
the O&M Agreement, which insurance certificate need not name Owner as an
additional insured. A certificate setting forth such insurance is attached
hereto as Exhibit A. Owner shall secure and maintain during the term of this
Agreement Property and Boiler and Machinery Insurance on an "All Risk" basis
covering physical damage or loss to all real and personal property of Owner
located at the Tank Facility, including, without limitation, the Standby
Boilers, in an amount not less than one hundred percent (100%) of the full
replacement value of such property.
13. Owner's Representative. Owner's representative for the Services shall
be Owner's Manager of Power Systems, Xxxxx Xxxxxxxx. Contractor's
representative for the Services shall be Contractor's employee who is the
manager of the Power Plant.
14. Purchase Order Identification. Owner's Project Number (AFE) for this
Agreement is N/A, and such number shall be required on all invoices and
documentation relating to the Services. Owner's purchase order number
8048870-25 shall apply to the Services and Tax Forms ST-4 and ST-8 shall be
attached to Owner's purchase orders.
15. Termination. Owner and Contractor reserve the option to terminate this
Agreement at any time upon thirty (30) days' written notice delivered to the
other party. Upon termination of this Agreement, Contractor shall be reimbursed
for its costs incurred through the date of the termination and for unavoidable
costs for which Contractor has become obligated prior to the date of
termination pursuant to its performance of the Services, plus applicable
overheads and reasonable profit based on the Services completed through the
date of termination; provided, however, in no event shall Contractor be
reimbursed for prospective profits for Services unperformed.
16. Force Majeure. Neither Owner nor Contractor shall be deemed in default
of this Agreement to the extent that any delay or failure in the performance of
either Owner's or Contractor's obligations results from any cause beyond its
reasonable
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control, including, without limitation, acts of God, acts of civil or military
authority, embargoes, epidemics, war, riots, insurrections, fires, explosions,
earthquakes, floods, adverse weather conditions, strikes or lockouts, acts of
government agencies or officials, and changes in laws, statutes, regulations or
ordinances.
17. Delays. Contractor agrees that if it or its subcontractors should fail
to prosecute diligently the Services because of failure of it or its employees
or such subcontractor or its employees to cross any union picket line or lines
on or about Owner's premises then, in such event, Contractor shall have no
liability to Owner arising out of such failure to cross such picket line, and
Owner shall have the right, at its option, to terminate this Agreement upon
three (3) days' written notice to Contractor, in which event Contractor shall
only be entitled to payment through the date of termination for Services
actually rendered; provided, however, in no event shall Contractor be
reimbursed for prospective profits for Services unperformed.
18. Utilities and Boiler Fuel. Owner shall provide as and when needed by
Contractor, at no cost to Contractor, electrical power, support utilities, fuel
and water required to fire and operate the Standby Boilers. Contractor shall
not be responsible, and has no liability to Owner, if electrical power, support
utilities, fuel or water are not supplied by Owner in quantity and quality
sufficient for Contractor to perform the Services.
19. Access to Work. Owner shall provide and shall make every reasonable
attempt to provide safe, convenient access, at all times, to the areas
necessary for Contractor to perform the Services; provided, however, if
Contractor is not given such access to the areas necessary to perform the
Services, then Contractor shall have no liability for failure to perform the
Services as a consequence thereof. Contractor shall enter and leave the
Terminal via a terminal gate and roads to be specified by Owner.
20. Safety. Contractor agrees to abide by all reasonable safety rules in
the Terminal, including, but not limited to, the following:
(1) No smoking is permitted in the tank farm or vehicles. Smoking is
allowed only in authorized smoking areas;
(2) No bringing in, consuming or being under the influence of
intoxicating beverages or drugs;
(3) Vehicles are to obey all traffic signs and posted 15 mph speed
limits;
(4) Littering is not permitted. Refuse is to be deposited in the
available containers; and
(5) When applicable, Contractor shall abide by industry regulations
pertaining to confined space entry.
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Contractor understands that there is storage of flammable liquids in the
general vicinity of the Standby Boilers. Any welding or burning shall be
performed in a safe manner in accordance with Owner's hot work procedures.
Contractor agrees to obtain a hot work permit from Owner's Director of Safety,
Xxxxxxx Xxxxxxxxx, or his designee on a daily basis, which permit shall not be
unreasonably withheld, delayed nor conditioned.
Contractor shall submit a site safety plan to Owner prior to the
commencement of any Services at the Terminal.
Contractor represents that it is aware of Owner's "Drug and Alcohol Policy
for Contractors" and agrees to the provisions thereof.
21. Clean Site. Contractor shall leave its work areas in a clean condition
and free of all debris and material upon completion of the Services.
22. Hot Work Permits Procedure. Prior to performing any "Hot Work",
Contractor shall first obtain dike entry permission, which permission shall not
be unreasonably withheld, delayed nor conditioned. Such permission shall be
issued between 7:00 a.m. and 7:45 a.m., daily, by Owner's Director of Safety,
Xxxxxxx Xxxxxxxxx, or his designee. After the hour of 8:00 a.m., "Hot Work
Permits" shall be issued in the field after a site inspection by Owner's
Fire-Safety Manager or his designee has been made to insure the area is safe and
that fire protection equipment is on site, i.e., fire hose nozzles and fire
extinguishers, unless special arrangements are made with the Fire and Safety
Department in advance. "Hot Work" by Contractor shall not begin without
following the above procedure.
23. Diked Access Security. Contractor shall obtain permission from Owner
prior to vehicles and equipment entering any tank dike area, which permission
shall not be unreasonably withheld, delayed nor conditioned. Dike chains shall
be secured at all times.
24. Notice. Any notice to either party required or permitted hereunder
shall be in writing and shall be given by (i) personal delivery, (ii)
commercial courier (iii) registered or certified U.S. mail, return receipt
requested, postage prepaid, or (iv) telecopy if also given by personal
delivery, commercial courier or registered or certified U.S. mail, return
receipt requested, postage prepaid within three (3) days after the telecopied
transmission, all such notices to be addressed as follows:
If to Owner:
IMTT-Bayonne
Foot of Xxxx 00xx Xxxxxx
Xxxxxxx, Xxx Xxxxxx 00000
Telecopier Number: (000) 000-0000
Attention: Terminal Manager
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If to Contractor:
Cogen Technologies NJ Venture
c/o Cogen Technologies NJ, Inc.
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Telecopier Number: (000) 000-0000
Attention: Senior Vice President and Chief
Operating Officer
with copy to:
Cogen Technologies NJ Venture
00 Xxxx Xxxx
Xxxxxxx, Xxx Xxxxxx 00000
Telecopier Number: (000) 000-0000
Attention: Plant Manager
Notice by personal delivery shall be effective when made and notice by
commercial courier or by mail shall be deemed effective upon receipt. A copy of
each such notice shall, to the extent reasonably practicable, also be forwarded
by telecopier.
25. Limitation of Liability. NOTWITHSTANDING ANY PROVISION CONTAINED IN
THIS AGREEMENT TO THE CONTRARY, NEITHER PARTY NOR ITS SHAREHOLDERS, OFFICERS,
DIRECTORS, PRINCIPALS, AGENTS, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS, VENDORS,
OR RELATED OR AFFILIATED ENTITIES SHALL BE LIABLE TO THE OTHER HEREUNDER FOR
ANY PUNITIVE, CONSEQUENTIAL, SPECIAL, INCIDENTAL OR INDIRECT LOSS OR DAMAGE,
INCLUDING COST OF CAPITAL, LOSS OF GOODWILL, LOSS OF PROFIT OR REVENUE, COST OF
REPLACEMENT POWER OR STEAM OR INCREASED OPERATING COSTS.
NOTWITHSTANDING ANY PROVISION CONTAINED IN THIS AGREEMENT TO THE CONTRARY,
CONTRACTOR SHALL NOT BE LIABLE TO OWNER (WHETHER BY CONTRACT, EQUITY, WARRANTY,
TORT, STATUTE OR OTHERWISE) FOR AN AMOUNT IN EXCESS OF TWENTY THOUSAND AND
00/100 DOLLARS ($20,000.00). THE PARTIES FURTHER AGREE THAT THE WAIVERS AND THE
DISCLAIMERS OF LIABILITY, INDEMNITIES, RELEASES FROM LIABILITY AND LIMITATIONS
ON LIABILITY EXPRESSED IN THIS AGREEMENT SHALL SURVIVE THE TERMINATION OR
EXPIRATION OF THIS AGREEMENT AND SHALL APPLY (WHETHER IN CONTRACT, EQUITY,
WARRANTY, TORT, STATUTE OR OTHERWISE) EVEN IN THE EVENT OF THE FAULT,
NEGLIGENCE (INCLUDING THE SOLE NEGLIGENCE), STRICT LIABILITY OR BREACH OF
WARRANTY OF THE PARTY INDEMNIFIED, RELEASED OR WHOSE LIABILITIES ARE LIMITED
AND SHALL EXTEND TO THE OFFICERS, DIRECTORS, PRINCIPALS, AGENTS, CONTRACTORS,
SUBCONTRACTORS, VENDORS, EMPLOYEES OR RELATED OR AFFILIATED ENTITIES OF SUCH
PARTY.
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26. Indemnification. OWNER SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS
CONTRACTOR AND ITS PARTNERS, JOINT VENTURERS, OFFICERS, AGENTS, EMPLOYEES,
SUBCONTRACTORS, CONTRACTORS, VENDORS, SUCCESSORS AND ASSIGNS FROM AND AGAINST
ANY AND ALL SUITS, ACTIONS, LEGAL OR ADMINISTRATIVE PROCEEDINGS, CLAIMS,
DEMANDS, PENALTIES, COSTS, AND EXPENSES (INCLUDING ATTORNEYS' FEES, COURT COSTS
AND ALL COSTS OR EXPENSES RELATED TO ENVIRONMENTAL CLEAN-UP, CONTAINMENT,
REMEDIATION OR REMOVAL OF HAZARDOUS WASTE OR POLLUTION TO PROPERTY OF THIRD
PARTIES) OF ANY NATURE FOR PERSONAL INJURY OR DEATH OR PHYSICAL DAMAGE TO
PROPERTY OF ANY THIRD PARTY (INCLUDING EMPLOYEES OF OWNER AND ITS
SUBCONTRACTORS) ARISING OUT OF OR RESULTING FROM THIS AGREEMENT OR THE
PERFORMANCE OR NON-PERFORMANCE HEREOF, EVEN IF CAUSED BY THE NEGLIGENT ACT OR
NEGLIGENT OMISSION OF CONTRACTOR, ITS SUBCONTRACTORS OR SUPPLIERS, OR ANYONE
EMPLOYED BY ANY OF THEM, OR ANYONE FOR WHOSE ACTS ANY OF THEM MAY BE LIABLE.
27. Arbitration. Any controversy, claim or dispute between the parties
affecting or relating to the subject matter or performance of the rights,
duties and obligations of the parties under this Agreement or the breach
thereof, including any dispute as to whether a matter is arbitral, shall be
settled pursuant to arbitration pursuant to the terms hereof. All such
controversies, claims and disputes shall be decided by arbitrators selected as
hereinafter provided and all such arbitrations shall be conducted in accordance
with the Commercial Arbitration Rules of the American Arbitration Association
then obtaining, unless the parties mutually agree otherwise. The arbitration
shall be held in Houston, Texas, and any arbitration demand must be filed with
the American Arbitration Association office located closest to Houston, Texas.
Each controversy, claim or dispute shall be submitted to three (3) arbitrators,
one (1) arbitrator being selected by Owner, one (1) arbitrator being selected
by Contractor, and the third arbitrator being selected by the two (2) so
selected. The party initiating the arbitration shall include in its
notification the designation of its selected arbitrator and the party receiving
such notification shall designate its arbitrator within fifteen (15) days
thereafter and notify the initiating party and its arbitrator of the selection.
If the arbitrators selected by Owner and Contractor cannot agree on a third
arbitrator within fifteen (15) days after the second arbitrator is selected,
the third arbitrator shall be selected by the American Arbitration Association.
In the event the party receiving notification of a demand for arbitration shall
not have selected its arbitrator and given notice thereof to the other party
and its arbitrator within fifteen (15) days after receiving such notification,
such arbitrator shall be selected by the American Arbitration Association.
Notice of demand for arbitration shall be filed in writing with the other party
and with the American Arbitration Association. The demand shall be made within
a reasonable time after the controversy, claim or dispute in question has
arisen. In no event shall the demand for arbitration be made after the date
when the applicable statute of limitations would bar institution of a legal or
equitable proceeding based on such controversy, claim or dispute. This
agreement to arbitrate shall be specifically enforceable under the prevailing
arbitration law. The award rendered by
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the arbitrators shall be final and judgment may be entered upon it in
accordance with applicable law in any court having jurisdiction thereof.
28. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New Jersey, without giving effect to
the conflict of laws principles thereof.
29. Severability. Every provision of this Agreement is intended to be
severable such that if any term or provision hereof is illegal or invalid for
any reason, such provision shall be severed from this Agreement and shall not
affect the validity of the remainder of this Agreement.
30. Entire Agreement. This Agreement constitutes the entire agreement
between Owner and Contractor relating to the subject matter hereof and
supersedes and replaces all prior and contemporaneous agreements and
understandings not incorporated herein by reference thereto, whether written or
oral.
31. Amendments. No amendment or modification hereof shall be valid or
binding upon the parties hereto unless evidenced in writing and signed by a
duly authorized representative of Owner and Contractor.
32. Waive. No failure by either party to insist upon the strict
performance of any term, covenant or condition of this Agreement, or to
exercise any right or remedy upon breach of any provision, and no acceptance of
payment or performance during the continuation of any such breach, shall
constitute a waiver of any term, covenant or condition herein or a waiver of
any subsequent breach or default in the performance of any term, covenant or
condition herein.
33. Original and Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original for all purposes, but
all of which shall constitute one and the same instrument.
34. Independent Contractor. Operator shall perform its duties and
obligations hereunder as an independent contractor, and nothing contained
herein shall be deemed to create a relationship of employer/employee,
master/servant, agency (except as otherwise expressly set forth herein),
partnership or joint venture.
35. Limited Recourse. Any claim against either party that may arise under
this Agreement shall be made only against, and shall be limited to the assets
of, such party, and no judgment, order or execution entered in any suit, action
or proceeding thereon shall be obtained or enforced against any partner or
joint venturer of such party or the assets of such partner or joint venturer or
any incorporator, shareholder or other equity holder, employee, officer or
director thereof, whether acting individually or in a representative capacity
hereunder or in connection with the ownership, operation or maintenance of the
Power Plant or the Tank Facility, as the case may be (or, in the case of such
partners or joint venturers that are partnerships, of any partner thereof), or
against any direct or indirect parent corporation, subsidiary or affiliate or
any incorporator, shareholder or other equity holder, employee, officer or
director of
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any thereof, whether acting individually or in a representative capacity
hereunder or in connection with the ownership, operation or maintenance of the
Power Plant or the Tank Facility, as the case may be, for the purpose of
obtaining satisfaction of any payment of any amount owing under this Agreement.
36. Captions. The captions contained in this Agreement are for convenience
and reference only and in no way define, describe, extend or limit the scope or
intent of this Agreement or the intent of any provision contained herein.
37. No Effect on Power/Steam Purchase Agreement. This Agreement shall not
amend or modify the Power/Steam Purchase Agreement in any respect.
38. Survival. Sections 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36,
37 and 38 of this Agreement shall survive termination of this Agreement, and,
until all payments due by Owner pursuant to this Agreement have been paid in
full, Section 7 of this Agreement shall also survive the termination of this
Agreement.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
duly executed as of the date and year first above written.
IMTT-BAYONNE
By: /s/ X. X. XXXXXXX
----------------------------------------
Name: X. X. XXXXXXX
--------------------------------------
Title: Terminal Manager
-------------------------------------
"OWNER"
COGEN TECHNOLOGIES NJ VENTURE
By: Cogen Technologies NJ, Inc., its
Managing Venturer
By: /s/ X.X. XXXXXXXXX
------------------------------------
Name: X.X. XXXXXXXXX
----------------------------------
Title: SR. VP - COO
---------------------------------
"CONTRACTOR"
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EXHIBIT A
---------
CERTIFICATE OF INSURANCE
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO
RIGHTS UPON THE CERTIFICATE HOLDER.
THIS CERTIFICATE DOES NOT AMEND, EXTEND COMPANIES AFFORDING COVERAGES
OR ALTER THE COVERAGE AFFORDED BY THE
POLICIES LISTED BELOW.
NAME AND ADDRESS OF AGENCY:
XXXXXXXXX XXXXX OF NEW YORK, INC. A ELECTRIC INSURANCE CO
0000 XXXXXX XX XXX XXXXXXXX, XXXXXXX
XX, XX 00000 LETTER
FOR REVISIONS, RENEWALS OR QUESTIONS
ON THIS CERTIFICATE CONTACT:
B NATIONAL UNION FIRE INS CO
XXXXXXX X. XXXXXXXXX PH# (000) 000-0000 COMPANY
000 XXXXXX XX. FAX (000) 000-0000 LETTER
XXXXXXX, XX 00000
NAME AND ADDRESS OF INSURED: C
GENERAL ELECTRIC COMPANY COMPANY
LETTER
0 Xxxxx Xxxx, Xxxxxxxxxxx, XX 00000 D
COMPANY
LETTER
This is to certify that the insurance companies listed above have issued
policies of insurance, as described below and identified by a policy number,
to the insured named above, and to certify that such policies are in full
force and effect at this time. This certificate of insurance does not amend,
extend or alter the coverage afforded by the policies designated below.
COMPANY TYPE OF INSURANCE POLICY NUMBER POLICY LIMITS OF LIABILITY
LETTER ----------------- ------------- PERIOD --------------------------------------------
------- ------ EACH AGGREGATE
OCCURRENCE
---------- ---------
B GENERAL LIABILITY RMGL 1439616 1/1/98
TO
[X] COMMERCIAL FORM 1/1/99 BODILY INJURY
[X] PREMISES-OPERATIONS AND $ 2,500,000
[X] XCU PROPERTY
[X] PRODUCTS/COMPLETED DAMAGE
OPERATIONS HAZARD COMBINED
[X] BLANKET CONTRACTUAL
INSURANCE
[X] BROAD FORM PROPERTY
DAMAGE
[X] INDEPENDENT
CONTRACTORS
[X] PERSONAL INJURY
[X] OCCURRENCE FORM
A AUTOMOBILE LIABILITY ML 98-2 1/1/98
TO BODILY INJURY
[X] COMPREHENSIVE FORM 1/1/99 AND $ 2,500,000
[X] OWNED PROPERTY
[X] HIRED DAMAGE
[X] NON-OWNED COMBINED
B EXCESS LIABILITY RMGLX 1439607 12/1/97
TO BODILY INJURY $22,500,000
[X] FOLLOWING FORM 12/1/98 AND
PROPERTY
DAMAGE
COMBINED
A WORKERS COMPENSATION WC 98-1 1/1/98 [X] STATUTORY
AND TO LIMITS
EMPLOYERS LIABILITY 1/1/99
EACH ACCIDENT $ 2,500,000
DISEASE - POLICY $ 2,500,000
LIMIT
DISEASE - EACH $ 2,500,000
EMPLOYEE
REMARKS: SUBJECT TO THEIR TERMS AND CONDITIONS POLICIES RMGL 1439619, ML 98-2
AND RMGLX 1439617 INCLUDE COGEN TECHNOLOGIES NJ VENTURES, THEIR OFFICERS,
DIRECTORS AND EMPLOYEES AND PRUDENTIAL POWER FUNDING AS ADDITIONAL INSUREDS BUT
ONLY TO THE EXTENT REQUIRED BY OPERATIONS AND MAINTENANCE CONTRACTS. POLICIES
RMGL 1439616, RMGLX 1439617 AND WC 98-1 INCLUDE A WAIVER OF SUBROGATION AGAINST
THE ADDITIONAL INSUREDS, THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND
REPRESENTATIVES.
Cancellation: If any of these policies are canceled or changed during the
period of coverage as stated herein in such manner as to affect this
certificate, THIRTY (30) days written notice of such cancellation or change
will be given to the party to whom this certificate is addressed.
NAME AND ADDRESS OF CERTIFICATE HOLDER:
DATE ISSUED 2/2/98
SEE REVERSE SIDE
/s/ XXXXXXX XXXXX
--------------------
XXXXXXX XXXXX
AUTHORIZED REPRESENTATIVE
COGENTCH
13
EXHIBIT 10.94
[COGEN TECHNOLOGIES ENERGY GROUP LETTERHEAD]
April 3, 1998
Xx. Xxxxxxx Xxxxxx
Manager
GE Global O&M Services
0000 Xxxxxxxx Xxxxx Xxxxx Xxxx
Xxxxx 00
Xxxxxxxxx, Xxx Xxxxxx 00000
Dear Rich:
Attached please find a copy of the Agreement for Maintenance and Operations of
the IMTT Bayonne Chem South Boilers (IMTT Boiler O&M Agreement) by and between
IMTT/Bayonne (IMTT) as "Owner" and Cogen Technologies NV Venture (Cogen) as
"Contractor" to maintain and operate two 20,000 lbs/xx Xxxxxxx-Xxxxxx boilers
and related facilities at the IMTT facility in Bayonne. This is the current
draft of the agreement that IMTT and Cogen are discussing and which Cogen's
Xxxxx Xxxxxxx discussed with you in November. At that time, GE Global O&M
Services (GE) indicated that its insurance certificate could be forwarded to
IMTT but, that IMTT would not be an additional insured under the GE policy. IMTT
has agreed to accept the GE certificate without being an additional insured.
The intent of this agreement is to provide that the IMTT boilers be operated by
GE on the identical terms and provisions applicable to the operation of the
Standby Boilers referenced in the existing Operations and Maintenance Agreement
between GE and Cogen dated June 6, 1997, (the "O&M Agreement") and in accordance
with the terms and provisions of the IMTT Boiler O&M Agreement. The IMTT boilers
will be fired periodically to ensure their reliability and will be run only when
and if the cogeneration facility is unable to produce steam. I don't anticipate
that this agreement will significantly increase GE's work load on the site. I
trust that upon your inspection of the attached draft, you will agree.
Confirming our earlier discussions and correspondence, GE hereby agrees that the
operation of the IMTT boilers shall be considered part of GE's scope under and
subject to the terms of the O&M Agreement, including without limitation, Article
XVII Limit of Liability. GE further agrees that the contract between Cogen and
IMTT shall be a Related Agreement under the O&M Agreement. In consideration of
the above GE shall not be liable for any damage to the above property not
withstanding any other provision of the O&M Agreement. This agreement is
conditional upon the completion by IMTT and the acceptance by GE of the work
shown on the attached Safety Inspection list.
14
Xx. Xxxxxxx Xxxxxx
April 3, 1998
Page 2
Please signify your receipt and review of the attached draft of the IMTT
Boiler O&M Agreement and agreement with, and acceptance of, the terms and
provisions of this letter by signing below and returning same to me at your
earliest convenience.
Sincerely
/s/ ART XXXXXXXXXXX
Art Xxxxxxxxxxx
Director of Operations
Agreed and accepted this 3rd day of April, 1998 by:
General Electric O&M Services
Name: Xxxxxxx X. Xxxxxx
Title: Manager - Cogen Technology Project
Signature: /s/ XXXXXXX X. XXXXXX
------------------------------
15
IMTT XXXXXXX XXXXXX BOILER
SAFETY INSPECTION
ENTRANCE/EGRESS
1. Exit signs not illuminated.
2. No exit sign at east door.
3. East door locked with padlock from outside.
4. Verify that windows will open.
5. Northside window blocked by equipment on ground outside.
FIRE PREVENTION
1. Fire extinguisher at each door last serviced 1/96.
2. Fire suppression system?
GENERAL HOUSEKEEPING
1. Several boxes of drawing documents and other papers stored on top of file
cabinet near front door.
2. Desk/small file cabinet near front door are covered with dirt and black
material.
3. Floor throughout building needs to cleaned of dirt and debris, as well as
oil in some locations.
4. Sink has running water but drain pipe is broken.
5. Deaerator pumps leaking oil onto concrete floor.
6. Back wall between boilers, four inch drain in floor needs cover/grating.
7. Tar on floor at front overhead gate.
EQUIPMENT
1. Not all piping and valves are labeled/color coded.
2. Natural Gas line painted yellow in some areas and black others.
3. Where do drains go? Permits for running equipment?
4. Northeast corner, fuel oil valves are leaking:
Oil stained floor.
Bucket full of oil.
Bucket sitting in hole (no concrete) - possible ground contamination.
Leak along floor/wall seam - possible ground contamination.
5. Breaker cabinet near east door has conflicting information for boiler
switches - label written on panel identifies switch as boiler #1 breaker; label
on door indicates switch as boiler #2 breaker.
6. Guardrail on top of both boilers are open on one side.
EMERGENCY PREPAREDNESS
1. Phone does not work.
2. Eyewash station near sink does not work well.
16
CHEMICAL MANAGEMENT
-------------------
1. Ten bottles of various reagents stored on small file cabinet are expired.
2. Three day tanks currently have material in them.
3. No material safety data sheets available at the site for the various
chemicals.
4. Open end pipe on blue deaerator day tank.
5. No label on blue deaerator day tank.
6. Two chemical drums stored on drum holding for pouring material not on spill
pallet.
