EXHIBIT 10(e)
PRODUCTS TERMINALLING AGREEMENT
THIS PRODUCTS TERMINALLING AGREEMENT ("AGREEMENT"), EXECUTED ON THE 1ST DAY OF
NOVEMBER, 2001, IS MADE BETWEEN XXXXXXXX TERMINALS HOLDINGS, L.P., A DELAWARE
LIMITED PARTNERSHIP, WHOSE ADDRESS IS X.X. XXX 0000, XX 000-X, XXXXX, XXXXXXXX
00000 ("XXXXXXXX") AND XXXXXXXX ENERGY MARKETING & TRADING COMPANY A DELAWARE
CORPORATION, WHOSE ADDRESS IS XXX XXXXXXXX XXXXXX, XXXXX, XXXXXXXX 00000
("CUSTOMER"). IN ACCORDANCE WITH THIS AGREEMENT, XXXXXXXX DESIRES TO PROVIDE
CERTAIN SERVICES TO CUSTOMER AT ITS TERMINAL, AND CUSTOMER DESIRES TO UTILIZE
SUCH FACILITIES TO RECEIVE SERVICES, ALL AS SET FORTH BELOW. ACCORDINGLY, THE
PARTIES AGREE AS FOLLOWS:
1. AGREEMENT. Each person and party signing this Agreement represents that it
has full power and authority to enter into and perform this Agreement, that
the signing and delivery of this Agreement has been duly authorized by all
necessary corporate action of such party, and that this Agreement
constitutes the valid and binding obligation of such party. This Agreement
will only be binding when signed below by both of the parties.
2. DEFINITIONS. In addition to the definitions provided elsewhere in this
Agreement, the following definitions will apply:
"ADJUSTED TRANSPORTATION CAPACITY" means the actual amount of
Transportation Capacity provided hereunder, calculated using a
Transportation Capacity base rate of, for the first three (3) calendar
months of this Agreement, 40,500 bbl per day and, for the remainder of the
term of this Agreement, 54,000 bbl per day.
"AFFILIATE" means any entity which directly or indirectly controls, is
controlled by, or is under a common control with a party. The term
"control" (including the terms "controlled by" and "under common control
with") as used in the preceding sentence means the possession, directly or
indirectly, of the power to direct or cause the direction of management and
policies of an entity.
"BARREL" or "BBL" means 42 U.S. Gallons.
"BERTHING" means the actions performed by Xxxxxxxx necessary to effect a
Delivery by Marine Vessel that occur during the time period beginning when
the Marine Vessel ceases motion alongside any Terminal dock and ending when
Product is first capable of passing the fixed dock flange.
"BLEND" or "BLENDING" means the mixing together of Products with different
specifications to achieve a resultant Product with certain desired
specifications.
"CATASTROPHIC EVENT" shall mean the reduction of Transportation Capacity to
25,000 bbls per day or less for more than thirty (30) days.
"CONTRACT YEAR" means a twelve-month period beginning on the effective date
of this Agreement and each subsequent twelve-month period beginning on the
anniversary date of this Agreement during the term of this Agreement.
"DELIVERY" or "DELIVERIES" means the transfer of Product from a Marine
Vessel, truck or pipeline into the Terminal.
"GALLON" means a volume of 231 cubic inches of Product measured at a
temperature of 60 degrees Fahrenheit.
"LAW" means any and all laws, regulations, rules, ordinances, codes, orders
and decrees affecting this Agreement of any local, state, federal
governmental authority having jurisdiction.
"LOSS ALLOWANCE" means that amount of Product as set forth in Section 27.
"MARINE VESSEL" means any type of barge, tug or other waterborne craft.
"NEW WASTE" means any amount of Waste a) present in the tanks at the
Terminal in excess of Pre-Existing Waste, or b) in any tank after it shall
have been previously cleaned during the term of this Agreement.
"PIPELINE SPECIFICATIONS" means the specifications for Product of Ship
Shoal Pipeline, including but not limited to sulphur content and API
gravity.
"PRE-EXISTING WASTE" means the amount of Waste present in the tanks at the
Terminal as measured by Xxxxxxxx and Customer within thirty (30) days of
the execution of this Agreement, set forth in Exhibit "B".
"PRODUCT" means crude oil and condensate.
"PROPERTY" means that parcel of land specifically described in Exhibit "A".
"RECEIPT" or "RECEIVE" means the transfer of Product out of the Terminal
into truck, pipeline, or another terminal.
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"SERVICES" means those services described in Section 3 of this Agreement,
the use of any other facilities and any other services necessary to meet
Xxxxxxxx' obligations hereunder.
"SERVICES FEES" means the rates set forth in Section 8, below.
"SERVICES OPTION" means the first right of refusal granted hereunder to
Customer to use any Surplus Transportation Capacity.
"SERVICES OPTION FEES" means the rates set forth in Section 9, below.
"SHIP SHOAL PIPELINE" shall mean Ship Shoal Pipeline Company or its
successor.
"STORAGE CAPACITY" means the physical volume in which Product can be held
within the tanks at the Terminal, which tanks shall include the two (2)
tanks of 8,000 bbl nominal capacity and the one (1) tank of 30,000 bbl
nominal capacity currently at the Terminal.
"SURPLUS TRANSPORTATION CAPACITY" means any amount of daily Transportation
Capacity in excess of 60,000 bbl per day that may exist at any time at the
Terminal or on the Property.
"TERMINAL" means the Xxxxxxxx crude oil terminal located adjacent to Bayou
Black in Terrebonne Parish, Louisiana, including tanks, pipelines, docks,
other facilities comprising it and any other facilities that Xxxxxxxx shall
deem necessary to fulfill its obligations hereunder.
"TRANSPORT" or "TRANSPORTATION" means the physical movement of Product from
the Delivery point to the Receipt point, including any actions required to
be performed by Xxxxxxxx necessary to meet Customer's Blending
requirements.
"TRANSPORTATION CAPACITY" means that rate at which Xxxxxxxx is able to
Transport through the Terminal as more specifically set forth in Section 3
of this Agreement.
"VACATING" means the actions performed by Xxxxxxxx necessary to undock a
Marine Vessel that occur during the time period beginning when Product
ceases passing the fixed dock pipeline flange and ending when the Marine
Vessel is capable of leaving the dock.
"WASTE" means any tank bottom, tank heel, water, sludge, sediment,
particulate, or other residual matter present in the tanks at any time at
the Terminal.
3. SERVICES PROVIDED BY XXXXXXXX. Xxxxxxxx agrees to provide the Services
described below at its Terminal. Xxxxxxxx agrees to provide the amount of
such Services as set forth in this Section 3, twenty-four (24) hours a day,
seven (7) days a week, 365 days per year, except where indicated otherwise
in this Agreement. Xxxxxxxx shall provide Customer with prior notice of any
planned Service capacity reduction as soon as possible, but in no case less
than 48 hours prior notice. For an unplanned Service capacity reduction,
Xxxxxxxx shall provide Customer with notice as soon as reasonably possible,
but in any event within 24 hours of such outage.
A. DELIVERIES: Xxxxxxxx shall receive all Customer Deliveries
subject only to the limitations of the facilities and equipment
within the Terminal, except that the combined time for Xxxxxxxx
to Berth and Vacate any Marine Vessel shall not exceed two (2)
hours. In the event that any time required for the measurement of
Product quality by Customer or its inspector, such time will be
excluded from the calculation of time required for Xxxxxxxx to
Berth and Vacate any Marine Vessel.
B. STORAGE: Xxxxxxxx shall provide Customer Product storage capacity
at the full amount of Xxxxxxxx' Storage Capacity at any time. At
the time this Agreement is executed the amount of Storage
Capacity to be provided Customer by Xxxxxxxx at any time shall be
no less than 46,000 bbl.
C. BLENDING: Xxxxxxxx shall Blend Product for the benefit of
Customer in accordance with Customer's instructions, which
Xxxxxxxx may require to be in writing, and which are subject to
change at any time. At the time of this Agreement Xxxxxxxx shall
have the capability of Blending Customer's Product at the rate of
no less than 1,000 bbl per hour of sour crude with no less than
1,500 bbl per hour of sweet crude. Xxxxxxxx' responsibilities set
forth in this Section 3 are qualified by Customer having provided
adequate volumes of Product Blend stocks to Xxxxxxxx.
D. TRANSPORTATION: Xxxxxxxx agrees to Transport Product from the
Terminal into the Ship Shoal Pipeline according to the schedule
provided by Customer. For the first three (3) calendar months of
this Agreement, Xxxxxxxx shall provide Transportation Capacity at
the rate of no less than 45,000 bbl per day. For the remainder of
the term of this Agreement, Xxxxxxxx shall provide Transportation
Capacity at the rate of no less than 60,000 bbl per day.
Xxxxxxxx' responsibilities set forth in this Section 4 are
qualified by Customer having scheduled Deliveries and Receipts as
may be necessary to accommodate Customer's Transportation
instructions. Any penalties or disruptions on the Ship Shoal
Pipeline related to Product quality shall be the responsibility
of the party at fault.
4. XXXXXXXX' SERVICE COMMITMENT. Xxxxxxxx shall meet all Service performance
standards set forth in Section 3, above. In the event the Terminal
experiences Service capacity reduction associated with any of the
facilities set forth below, the duration of Service capacity reduction of
each facility experiencing a reduction shall be measured to the nearest
quarter hour, sufficiently documented and presented to Customer for
approval monthly as set forth in Section 17. For the first three (3)
calendar months of this Agreement, all such time measurements shall be
converted to a Transportation Capacity reduction according to the standard
rates set forth in Section 4(a), below and in accordance with the
calculation rules set forth in Subsection 4(c), below. For the remaining
term, the standard rates set forth in Section 4(b), below and the
calculation rules set forth in Section 4(c), below, shall be used.
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a. STANDARD RATES FOR THE FIRST THREE (3) CALENDAR MONTHS:
1. Tank 8000: 307 bbl per hour
2. Tank 8001: 307 bbl per hour
3. Tank 8002: 1,074 bbl per hour
4. Main Pump: 1,688 bbl per hour
5. 8" Pipeline: 1,688 bbl per hour
6. Large Dock: 844 bbl per hour
7. Small Dock: 844 bbl per hour
8. Berthing and Vacating - Large Dock: 844 bbl per hour
9. Berthing and Vacating - Small Dock: 844 bbl per hour
10. Ship Shoal Pipeline: 1,688 bbl per hour
b. STANDARD RATES FOR THE REMAINING TERM:
1. Tank 8000: 409 bbl per hour
2. Tank 8001: 409 bbl per hour
3. Tank 8002: 1,432 bbl per hour
4. Main Pump: 2,250 bbl per hour
5. 8" Pipeline: 1,688 bbl per hour
6. 6" Pipeline: 562 bbl per hour
7. Large Dock: 1,125 bbl per hour
8. Small Dock: 1,125 bbl per hour
9. Berthing and Vacating - Large Dock: 1,125 bbl per hour
10. Berthing and Vacating - Small Dock: 1,125 bbl per hour
11. Ship Shoal Pipeline: 2,250 bbl per hour
c. CALCULATION RULES:
1. In no case shall the standard rate used to calculate a
Transportation Capacity reduction exceed a) 1,688 bbl per
hour during the first three (3) calendar months, or b) 2,250
bbl per hour for the remaining term.
2. In the event that two or more of the facilities set forth
above are experiencing Service capacity reductions at the
same time the highest standard rate of such facilities shall
be used to calculate a Transportation Capacity reduction,
except as set forth in Calculation Rule 3.
3. Notwithstanding anything to the contrary contained in this
Section 4, if a) both the Large Dock and the Small Dock are
unable to receive Marine Vessels during the same period of
time, b) both the 8" pipeline and the 6" pipeline (after the
first three (3) calendar months) are unable to move Product
during the same period of time, c) two Marine Vessels are
experiencing a Transportation Capacity reduction while
Berthing and Vacating, or d) two or more tanks are
experiencing a Transportation Capacity reduction during the
same period of time, then the sum of the standard rates for
such facilities shall be used to calculate a Transportation
Capacity reduction.
4. Should Xxxxxxxx exceed two (2) hours to Berth and Vacate a
Marine Vessel then the Transportation Capacity reduction
shall be calculated using the standard rate for Berthing and
Vacating set forth above and applied as a Transportation
Capacity reduction.
5. Should Xxxxxxxx Berth and Vacate a Marine Vessel in less
than one and a half (1.5) hours, then an off-set shall be
calculated using the standard rate for Berthing and Vacating
set forth above and applied against any Transportation
Capacity reductions set forth in this Section 4. Any such
Berthing and Vacating off-set shall be limited to no more
than 270,000 bbls in any six (6) month period.
CONVERSION EXAMPLES:
o If the Storage capacity of Tank 8000 is reduced for three (3) hours,
the amount of Transportation Capacity reduction shall be calculated as
1,227 bbl (3 hours x 409 bbl per hour).
o If the Storage capacity of Tank 8000 was reduced for six (6) hours and
the Large Dock was unable to receive Marine Vessels for three (3)
hours during the same time period, the total amount of Transportation
Capacity reduction would be 4,602 bbl calculated in the following
manner:
(a) The Storage capacity of Tank 8000 is reduced for three (3)
hours alone, therefore, the amount of Transportation Capacity
reduction during this three (3) hour time period shall be
calculated as 1,227 bbl (3 hours x 409 bbl per hour).
(b) Because the Storage capacity of Tank 8000 and the ability of
the Large Dock to receive Marine Vessels were both reduced
during the same three (3) time period, the rate used to
calculate the Transportation Capacity reduction would be the
higher of the rates for the two (2) facilities, therefore,
the amount of Transportation Capacity reduction for this
three (3) hour period of time is 3,375 (3 hours x 1,125 bbl
per hour).
o If both the Large Dock and the Small Dock are unable to receive Marine
Vessels during the same three (3) hour time period, the total amount
of Transportation Capacity reduction would be 6,750 bbl (3 hours x
2,250 bbl per hour).
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o If Xxxxxxxx requires three (3) hours to Berth and Vacate a
Marine Vessel the total amount of Transportation Capacity
reduction would be 1,125 bbl (1 hour x 1,125 bbl per hour).
o If Xxxxxxxx should Berth and Vacate a Marine Vessel in one (1)
hour the total amount of Transportation Capacity offset shall
be 563 bbl (0.5 hours x 1,125).
5. TRUE UP. As set forth below, beginning with the month this Agreement is
executed, the parties shall make periodic adjustments to the payment set forth
in Section 8 below, based on the amount, if any, of Transportation Capacity
reductions which exceed the standard set forth in Section 6 below. After having
performed any such periodic true up and calculation of applicable liquidated
damages, the parties shall begin a new Transportation Capacity reduction
calculation the following period. The parties shall perform a true up at the end
of each six (6) calendar month period.
6. LIQUIDATED DAMAGES. At the time of first six (6) calendar month true-up
period, should the sum of all Transportation Capacity reduction amounts
(including all applicable off-sets) calculated during such period exceed 958,125
bbl, then Xxxxxxxx shall credit Customer for Services Fees payments at the rate
of $0.2386 per barrel for such Transportation Capacity reduction amount in
excess of 958,125 bbl. At the time of any subsequent six (6) calendar month
true-up, should the sum of all Transportation Capacity reduction amounts
(including all applicable off-sets) calculated during such period exceed
1,095,000 bbl, then Xxxxxxxx shall credit Customer for Services Fees payments at
the rate of $0.2045 per barrel for such Transportation Capacity reduction amount
in excess of 1,095,000 bbl. All such liquidated damages shall be subject to the
annual escalation set forth in Section 17. The credit provided by this Section
will be Xxxxxxxx' sole liability and Customer's sole remedy for Xxxxxxxx'
failure to meet the service performance standards specified in Sections 3 and 4
of this Agreement; however, this limitation shall not apply to loss of Product.
7. CUSTOMER RESPONSIBILITIES. Customer shall be responsible for nominating,
scheduling and effecting both Deliveries and Receipts. The parties expressly
recognize that the actual amount of Services provided during any time period is
determined in part by the timing and amounts of such Deliveries and Receipts.
8. SERVICES FEES. Customer shall pay $0.2386 per bbl of Adjusted Transportation
Capacity during the first six (6) calendar months, and $0.2045 per barrel of
Adjusted Transportation Capacity during the remaining term, subject to a maximum
payment of $4,031,583 in any one (1) year period, subject to the adjustments set
forth in Section 5, above, and in accordance with the payment terms set forth in
Section 17, including annual escalation.
9. SERVICES OPTION FEES. Xxxxxxxx shall not offer any Surplus Transportation
Capacity to any third party under any terms and conditions without first having
offered such Surplus Transportation Capacity to Customer under terms and
conditions no less favorable than those set forth herein. In addition to the
Services Fees set forth in Section 8 above, if at any time Xxxxxxxx should have
available and/or create Surplus Transportation Capacity, and Customer should
elect to Transport using some amount of such Surplus Transportation Capacity,
then for any barrels transported by Customer in using such Surplus
Transportation Capacity, Customer shall have the right to use any such Surplus
Transportation Capacity at rates not to exceed the Services Option Fees set
forth below, subject to the annual escalation set forth in Section 17.
a. 60,001 bbl - 65,000 bbl: $0.0200 per excess bbl.
b. 65,001 bbl - 70,000 bbl: $0.0300 per excess bbl.
c. 70,001 bbl and greater: $0.0500 per excess bbl.
10. TERMINAL OPERATIONS. Control and operation of the Terminal will rest
exclusively with Xxxxxxxx, which will comply with and provide all certifications
required by Law applicable to the ownership, control and operation of the
Terminal. Xxxxxxxx shall be an independent contractor with respect to the
performance of the Services, and Customer shall have no direction or control of
Xxxxxxxx or its employees, agents, or other representatives except in the
results to be obtained. Customer will have the right to make physical checks of
Product in Xxxxxxxx' custody and to observe the performance of the Services
provided hereunder. However, this right may not be exercised in a manner that
interferes with Xxxxxxxx' operation or control of the Terminal.
11. DELIVERIES TO AND RECEIPTS FROM THE TERMINAL. All Deliveries to Xxxxxxxx and
Receipts by the Customer will be at the Terminal by the Delivery and Receipt
means set forth in this Agreement. Additionally, Deliveries by Marine Vessel
will be made in accordance with the following:
A. MARINE VESSEL SCHEDULING. Customer will be responsible for scheduling
deliveries of Product by Marine Vessel to the Terminal. Customer will
communicate with the Terminal to determine which dock is available prior to the
arrival of any Marine Vessel scheduled. Xxxxxxxx reserves the right, in its sole
discretion, to refuse to allow any Marine Vessel to dock at the Terminal to
protect the safety of the Terminal, its personnel, or the environment.
B. VACATING BERTH. Xxxxxxxx may order any Marine Vessel chartered,
contracted or nominated by Customer to vacate its berth if such action is
required, in Xxxxxxxx' sole discretion, for the safe operation of the Terminal.
C. POLLUTION, PREVENTION AND RESPONSIBILITY. Customer will insofar as it is
able under the terms of any applicable charter party Agreement require that
Marine Vessels chartered, contracted or nominated by Customer promptly and
diligently prevent, mitigate and remediate all pollution emanating from said
Marine Vessels. All Marine Vessels chartered, contracted or nominated by
Customer hereunder will have secured and carry a current U.S. Coast Guard
Certificate of Financial Responsibility (Water Pollution).
D. LAYTIME AND DEMURRAGE. IN NO EVENT XXXX XXXXXXXX HAVE ANY LIABILITY TO
CUSTOMER FOR LAYTIME OR DEMURRAGE.
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12. MEASUREMENT AND TESTING. Xxxxxxxx shall measure quantities of Deliveries and
Receipts using Terminal tank gauges. Customer shall the right to have an
independent inspector to observe and verify such quantity measurements. The cost
of an independent inspector shall be borne by Customer. In the absence of any
measurements by an independent inspector, the results of the tests and
measurements made by Xxxxxxxx will be conclusive and binding on Customer, except
in the event of fraud or manifest error.
Xxxxxxxx shall have the right to test the quality of the Product. Any tests for
quality will be made in accordance with established ASTM standards and methods,
except to the extent such standards and methods conflict with applicable
governmental standards and methods. In the event of such conflict, governmental
standards and methods will control. Customer shall have the right to verify any
tests for quality conducted by Xxxxxxxx. Such verification shall be performed by
a mutually acceptable independent inspector. In the event of a dispute between
Xxxxxxxx and Customer regarding the quality of Product, the party deemed to be
in error shall pay for the cost of the inspector, including any laboratory
costs. In the absence of any tests by an independent inspector, the results of
the tests and measurements made by Xxxxxxxx will be conclusive and binding on
Customer, except in the event of fraud or manifest error.
Xxxxxxxx' obligation to make any delivery of Product to Customer will be
satisfied by delivering the volume of Product initially Delivered by Customer to
Terminal less the Loss Allowance set forth in this Agreement. Tank heel volume
will be put in place by Customer upon initial Delivery and be made available to
Customer within thirty (30) days of termination of this Agreement. In addition,
Customer will retain sufficient Product in the Terminal, in Xxxxxxxx' reasonable
opinion, to maintain minimum levels in Storage Capacity and pipelines, taking
into account the needs of pump suction and any floating roof tanks utilized.
13. QUALITY. Xxxxxxxx shall have the right to reject Delivery or conditionally
accept Delivery of any Product if Xxxxxxxx shall reasonably determine that such
Product contains chemicals or contaminants that may harm the Terminal. If any
product tendered for Delivery to the Terminal by Customer fails to meet this
specification, Xxxxxxxx may, at Xxxxxxxx' option, (a) reject the Product and
refuse to take Delivery; or (b) take Delivery of the Product and store it until
such time as Customer can remove the Product from the Terminal within a
reasonable period of time; or (c) take Delivery of the Product and store it
until such time as Xxxxxxxx can remove the Product from the Terminal at
Customer's cost.
14. PRODUCT RESPONSIBILITY. Title to Product will not pass to Xxxxxxxx. Xxxxxxxx
shall at all times use reasonable care and diligence to preserve and protect
Customer's Product from contamination, damage or loss while such Product is in
the Terminal. Xxxxxxxx shall not be responsible for any type of loss or damage
(including contamination) to Customer's Product caused by events beyond
Xxxxxxxx' control. For Deliveries to the Terminal, Customer will be responsible
for Product until it enters Xxxxxxxx' fixed dock flange, pipeline receiving
flange, or receiving hose, as the case may be. For Receipts from the Terminal,
Customer will be responsible for Product when it leaves Xxxxxxxx' fixed dock
flange, pipeline Receipt flange, or Receipt hose, as the case may be. In the
event Xxxxxxxx is deemed responsible for loss or damage to Product under this
Section 14, Xxxxxxxx shall be liable for damage or loss of Product under the
pricing formula as set forth in Section 27. If any Product is sold, exchanged,
or otherwise not owned by Customer while at the Terminal, Customer will
nevertheless be deemed the owner thereof for purposes of this Agreement.
Customer will continue to be responsible for all charges, taxes, terms and
conditions of this Agreement as if such Product were owned by Customer.
15. PRODUCT INFORMATION. Customer will sign in its name, pay for and furnish to
Xxxxxxxx at the Terminal all information, documents, labels, placards,
containers and other materials and data required under Law, together with
written instructions as to their use and disposition, except to the extent that
Xxxxxxxx as a terminal operator is obligated by Law to provide such information.
At Xxxxxxxx' request, Customer will provide Xxxxxxxx with a material safety data
sheet for each Product prior to Delivery of that Product to the Terminal.
Customer acknowledges that Xxxxxxxx may have an obligation under Law to disclose
information regarding Product to governmental authorities, parties handling the
Product, parties exposed to the Product, and to the general public, and Customer
promptly will provide Xxxxxxxx with any information required by Law for such
disclosures. Customer will prepare, file and maintain copies of all reports
required by Law to be filed with any federal, state or local governmental agency
concerning Delivery, Storage and Receipt of its Product, except to the extent
that Xxxxxxxx as a terminal operator is obligated by Law to prepare such
reports, and Customer promptly will transmit any such reports to Xxxxxxxx.
16. WASTE MEASUREMENT AND REMOVAL. Within thirty (30) days of the execution of
this Agreement, Xxxxxxxx and Customer shall hire an independent inspector to
measure the amount of Pre-Existing Waste. Xxxxxxxx and Customer will each be
responsible for the payment of 50% of the cost of measuring Pre-Existing Waste.
Results of the measurement of Pre-Existing Waste will be attached to this
Agreement as Exhibit "B". Xxxxxxxx may, from time to time at its reasonable
discretion or as required by Law, determine that it is necessary to remove Waste
and clean the tanks at the Terminal. Within fifteen (15) days of receiving
Xxxxxxxx notice, Xxxxxxxx and Customer shall hire an independent inspector to
measure the amount of Waste in the tanks at that time. Xxxxxxxx and Customer
will each be responsible for the payment of 50% of the cost of measuring the
Waste. The cost cleaning tanks will be borne by Xxxxxxxx. Xxxxxxxx will be
responsible for the cost of disposal of Pre-Existing Waste. Xxxxxxxx and
Customer will each be responsible for the payment of 50% of the cost of
measuring New Waste. Customer will be responsible for the cost of disposal of
New Waste.
17. INVOICING AND PAYMENT. Xxxxxxxx will invoice Customer monthly, in arrears,
for Services Fees or Service Option Fees (less adjustments for Loss Allowance
reimbursement and Transportation Capacity reductions as applicable) owed by
Customer to Xxxxxxxx under this Agreement. Such invoice shall be supported by an
statement that Xxxxxxxx shall also provide Customer monthly reporting in barrels
the beginning amount of Product at the Terminal, itemized detail of each
Delivery and Receipt, the ending amount of Product at the Terminal, the total
amount of product Transported during the month, the amount of Loss Allowance
generated during the month, the details of any Services Option Fees and all
applicable Transportation reduction calculation details. Customer will pay the
amount of each invoice by ACH credit less any amounts in dispute. Disputes about
the amount of an invoice will be resolved as set forth in Section 32. Customer
will be assessed a late charge of one and one-half percent (1.5%) interest per
month (or the highest rate permitted by Law, whichever is less) for any invoice
not paid within thirty (30) days of the date of the invoice, except for amounts
which are in dispute. Payments will be made in accordance with the instructions
provided by Xxxxxxxx from time to time. All charges under this Agreement are
subject to escalation at the rate of one percent (1%) per year. Escalation will
commence on the first anniversary of this Agreement. Xxxxxxxx' acceptance of
payment for any Service performed after the expiration or termination of this
Agreement will not be deemed a renewal of this Agreement.
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18. AUDIT. Xxxxxxxx agrees to retain its books and records related to the
charges to Customer for Services provided under this Agreement for a period of
two (2) years from the date the Services are rendered. Customer may request to
audit these books and records at Xxxxxxxx' property during normal Business
Hours. Any such audit will be at Customer's expense; however, should
discrepancies be discovered as a result of Customer's independently commissioned
audit, Xxxxxxxx shall be responsible for any and all costs associated with such
audit. Customer's payment obligations will survive the expiration or termination
of this Agreement.
19. LIABILITIES. XXXXXXXX WILL INDEMNIFY, DEFEND, AND HOLD HARMLESS CUSTOMER ITS
PARENTS AND AFFILIATES, AND ITS AND THEIR RESPECTIVE OFFICERS, DIRECTORS,
EMPLOYEES, AGENTS, AND OTHER REPRESENTATIVES FROM AND AGAINST ANY CLAIMS,
ACTIONS, JUDGMENTS, LIABILITIES, LOSSES, COSTS, DAMAGES, FINES, PENALTIES AND
EXPENSES TO THE EXTENT ARISING FROM: (A) THE NEGLIGENCE OR WILLFUL MISCONDUCT OF
XXXXXXXX, ITS EMPLOYEES, AGENTS, CONTRACTORS, OR OTHER REPRESENTATIVES IN THE
PERFORMANCE OF THIS AGREEMENT; OR (B) THE FAILURE OF XXXXXXXX TO COMPLY WITH THE
TERMS AND CONDITIONS OF THIS AGREEMENT. CUSTOMER WILL INDEMNIFY, DEFEND, AND
HOLD HARMLESS XXXXXXXX ITS PARENTS AND AFFILIATES, AND ITS AND THEIR RESPECTIVE
OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND OTHER REPRESENTATIVES FROM AND
AGAINST ANY CLAIMS, ACTIONS, JUDGMENTS, LIABILITIES, LOSSES, COSTS, DAMAGES,
FINES, PENALTIES AND EXPENSES TO THE EXTENT ARISING FROM: (A) THE NEGLIGENCE OR
WILLFUL MISCONDUCT OF CUSTOMER, ITS EMPLOYEES, AGENTS, CONTRACTORS (INCLUDING:
THE OWNERS, OPERATORS, AND VOYAGE CHARTERS OF MARINE VESSELS; AND THE OWNERS AND
OPERATORS OF TRUCKS), OR OTHER REPRESENTATIVES IN THE PERFORMANCE OF THIS
AGREEMENT; OR (B) THE FAILURE OF CUSTOMER TO COMPLY WITH THE TERMS AND
CONDITIONS OF THIS AGREEMENT. WITHOUT LIMITATION OF THIRD PARTY CLAIMS, NEITHER
PARTY WILL HAVE ANY LIABILITY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR
SPECIAL LOSS, DAMAGE OR COST (INCLUDING, WITHOUT LIMITATION, LOST BUSINESS
OPPORTUNITY OR LOST PROFIT), HOWSOEVER AND BY WHOMSOEVER CAUSED, EVEN IF THE
POSSIBILITY OF SUCH LOSS, DAMAGE OR COST WAS FORESEEABLE. The indemnities
expressed in this Agreement will survive the expiration, termination, or
suspension of this Agreement.
20. TAXES AND OTHER CHARGES. Customer will pay all taxes and assessments, now
existing or hereafter created, that may be assessed by any governmental
authority against any Product (including Waste), against the property of
Customer, or against Xxxxxxxx (except for income, franchise and real estate
taxes assessed against the Terminal) with respect to the receiving, storing,
handling, shipping or disposing of any Product, Waste or property of Customer,
including any value added tax, sales tax, excise tax, inventory tax, spill tax,
pollution control tax, emission control tax or similar tax assessment. If a
change in Law requires Xxxxxxxx to incur any additional expense in order to
continue to receive, store, handle, ship or dispose of any Product, Waste, or
property of Customer, Customer will pay the cost of such expenses, including any
engineering, construction, and operating expenses.
21. FORCE MAJEURE. Notwithstanding any other provision of this Agreement to the
contrary, all circumstances causing either party's non-performance under this
Agreement and the remedies therefore have been adequately addressed in this
Agreement, therefore, there shall be no excuse for non-performance based on
force majeure.
22. DEFAULT. Either party will be in default under this Agreement if it: (a)
breaches any material provision of this Agreement; (b) makes an assignment for
the benefit of creditors or consents to or acquiesces in the appointment of a
receiver, liquidator, fiscal agent, or trustee; or (c) becomes insolvent or
enters into a voluntary or involuntary bankruptcy or receivership. In the event
of any default, the other party will give the defaulting party notice of the
default and a thirty (30) day opportunity to cure. If the defaulting party fails
to cure the default within the cure period, the other party may terminate this
Agreement.
23. CLAIMS. Each party will immediately give notice to the other party in
writing of any claim or dispute hereunder, and include as part of such notice
full and complete details, specifics and backup documentation pertaining to it.
In no event will one party be liable to the other party unless such a written
notice together with all supporting documentation available is delivered within
sixty (60) days after the facts upon which the claim or dispute is based first
became known, or reasonably should have first become known, to espousing such
claim or dispute.
24. COMMISSIONS AND GIFTS. No director, officer, employee, agent, or other
representative of either party will give or receive any commission, fee, rebate,
gift or entertainment of significant value or cost in connection with this
Agreement. Further, neither party will give any commission, fee, rebate, gift or
entertainment of significant value or cost to any government official or
employee in connection with this Agreement.
25. CONFIDENTIALITY. The parties understand and agree that the terms and
conditions of this Agreement, all documents referred to herein and
communications between the parties regarding this Agreement (collectively
"Confidential Information") are confidential as between Xxxxxxxx and Customer
and will not, without the other party's prior written consent, be disclosed by a
party to a third party, other than a parties' representatives or agents who have
a need to know. In the event that either party is requested or becomes legally
compelled (by oral questions, interrogatories, request for information or
documents, subpoena, civil investigative demand or similar process) to disclose
any Confidential Information, it will give the other party prompt notice thereof
so that a protective order or other appropriate remedy may be sought and/or
waiver of compliance with the provisions of this Agreement granted. The party
requesting a protective order will bear all costs related thereto. In the event
that such protective order or other remedy is not obtained, the party who has
been requested or legally compelled to disclose Confidential Information agrees
that it will furnish only that portion of the Confidential Information which is
legally required and will exercise its reasonable efforts to obtain reliable
assurance that confidential treatment will be accorded to the Confidential
Information which is disclosed in such manner.
26. INSURANCE. The rates quoted herein do not include any insurance on the
Product covered hereunder while it is the possession of Xxxxxxxx, it being
clearly understood and agreed that such property insurance, if any be desired by
Customer, will be carried by Customer at its own expense. If Customer does carry
any insurance on the property, Customer's insurance carrier will endorse the
policies to waive all rights of subrogation against Xxxxxxxx and Customer will
provide Xxxxxxxx with evidence of such waiver of subrogation, either in the form
of the endorsement or a certificate of insurance. Both parties will obtain and
maintain in full force and effect commercial general liability coverage which
will include, but not be limited to, bodily injury, property damage, blanket
contractual liability and independent contractor liability, sudden and
accidental pollution and explosion, collapse and underground
6
coverage with limits of at least $2MM per occurrence and with insurance
companies reasonably satisfactory to the other party as respects all duties and
obligations pursuant to this Agreement. Each party will also maintain in full
force and effect workers' compensation insurance complying with the laws of the
state or states having jurisdiction over each employee, whether or not Customer
is required by such laws to maintain such insurance, and employer's liability
coverage with limits of at least $1MM each accident, $1MM disease each employee
and $1MM disease policy limit. For any work performed offshore or on navigable
waterways, this insurance will be endorsed to provide full Maritime liability
coverage, including Longshoreman's and Harbor Worker's Act, Outer Continental
Shelf Land Act, Xxxxx Act, Death on High Seas Act and In Rem. Owners and/or
charters of Marine Vessels or barges will obtain and maintain in full force and
effect hull and machinery insurance, including collision and tower's liability,
equal to the full value of the Marine Vessel. Protection and indemnity
insurance, including coverage for chartered vessels, members of crew, In Rem,
contractual liability, excess collision, and tower's liability on Ocean P&I
Clause SP-23 (revised January 1956) Form, or equivalent with a combined single
limit of $5,000,000 or that required by law, whichever is greater. All policies
carried by each party will require their carriers to endorse the policies to
waive subrogation rights in favor of the other party and, except for workers'
compensation. To the extent of the indemnity obligations specified in this
Agreement, each party will provide to the other party certificates showing
evidence of such coverages as of the effective date of this Agreement. Each
party will maintain all such policies current. The mere purchase and existence
of insurance does not reduce or release either party from any liability incurred
and/or assumed within the scope of this Agreement. Customer will cause all
Marine Vessels, truck carriers and rail car carriers which are chartered,
contracted, or nominated hereunder by Customer to comply with Law and to carry
all liability and pollution insurance required by Law.
27. LOSS ALLOWANCE. For the first twelve (12) months, Xxxxxxxx will be allowed,
for actual losses incurred (as substantiated by Xxxxxxxx measurement records), a
Loss Allowance no greater than 0.5% by volume of the quantity of Product
Transported by Xxxxxxxx on any day during the term of this Agreement. For the
remaining term of the Agreement, the Loss Allowance for any month shall be 120%
of the average of the actual monthly loss amounts incurred over a twelve (12)
month period, including the current month (excluding any monthly loss amounts
greater than +/- one (1) standard deviation from the mean of the distribution of
such twelve (12) monthly actual loss amounts). Customer agrees that Xxxxxxxx
will not be liable for any such Loss Allowance. Xxxxxxxx shall reimburse
Customer for actual losses in excess of such Loss Allowance monthly at a price
equal to the monthly average of the PLATTS LLS posting at St. Xxxxx for the
month in which such loss shall occur per the terms as set forth in Section 17.
28. GOVERNING LAW. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF OKLAHOMA WITHOUT REGARD TO THE CHOICE
OF LAW PRINCIPLES THEREOF.
29. ASSIGNMENT. Neither party will assign or transfer this Agreement in whole or
in part, or any of the rights or obligations contained herein (including the
right to the storage of Product), without the prior written consent of the other
party, which consent shall not be unreasonably withheld and any purported
assignment in violation of this provision will be void. Without limitation of
the foregoing, consent to assignment may be conditioned upon the acceptance by
the assignee of additional terms and conditions related to the creditworthiness
of the assignee. Consent to assignment by one party will not relieve the other
party from any of its duties or obligations under this Agreement, unless
otherwise specifically stated in the written consent. Notwithstanding the
foregoing, either party may assign this Agreement to an Affiliate without such
consent. Subject to the foregoing, this Agreement will bind and inure to the
benefit of the successors, assigns and transferees of the parties hereof.
30. NOTICES. Any notice by either party to the other will be deemed to have been
properly given if delivered personally, faxed with telephone and written
confirmation of receipt, or mailed to said party by certified or registered
mail, postage and charges prepaid, to the address set out below, unless and
until another address will have been specified in writing by said party.
CUSTOMER: XXXXXXXX:
Address: Xxxxxxxx Energy Marketing
& Trading Company Address: Xxxxxxxx Terminals Holdings, L.P.
Attn: Xxxx Xxxxxxxxx Attn: Xxxx Xxxxxxxx
P. O. Box 3448, MD WRC X.X. Xxx 0000, XX 000-X
Xxxxx, XX 00000-0000 Xxxxx, XX 00000
Telephone: 000-000-0000 Telephone: 000-000-0000
Facsimile: 000-000-0000 Facsimile: 000-000-0000
30. TERM AND TERMINATION. The term of this Agreement shall be for a period of
nine (9) years from the date this Agreement is executed. If a Catastrophic
Event shall occur, this Agreement shall be suspended immediately and the
obligations of Xxxxxxxx to provide Services and Customer to provide payment
under this Agreement shall be suspended. The term of this Agreement shall
not be affected by any such suspension.
Within forty (40) days after the occurrence of a Catastrophic Event, Xxxxxxxx
shall propose a plan to fully restore Transportation Capacity to no less than
the maximum capacity in effect immediately prior to the Catastrophic Event,
unless Xxxxxxxx can demonstrate, and the parties mutually agree, that such a
plan is impossible or impractical. If the parties mutually agree within fifteen
(15) days that it is impossible or impractical for Xxxxxxxx to fully restore
Transportation Capacity this Agreement will terminate immediately. Any
disagreements as to Xxxxxxxx' ability to fully restore Transportation Capacity
within fifteen (15) days will be settled by the dispute resolution procedures
set forth in Section 32 of this Agreement.
The plan submitted by Xxxxxxxx shall include, but may not be limited to a) the
date certain that Xxxxxxxx shall fully restore Transportation Capacity to no
less than the maximum capacity in effect immediately prior to the Catastrophic
Event, b) a proposal to enable Customer to operate its business without any loss
of profit or other damage during the period in which the Terminal is operating
at reduced capacity, c) the amount of any remaining Transportation Capacity at
the Terminal, and d) any other applicable terms and conditions which Customer
may require to evaluate Xxxxxxxx' plan.
Customer shall evaluate Xxxxxxxx' plan in good faith to determine whether it
will indeed protect Customer from loss of profit or other damage to its business
while Transportation Capacity is being restored. Customer's evaluation shall
consider, but shall not be limited to a) any incremental costs incurred to
transact business at another terminal, b) any change in product market value
related to transacting business at another terminal and c) the
7
competitive impact related to conducting business at another terminal. The
parties shall have fifteen (15) days to negotiate an interim agreement based on
Xxxxxxxx' plan.
If the parties do not reach an interim agreement within such fifteen (15) days,
this Agreement shall terminate immediately; however, if either party believes
that the other party has not negotiated the interim agreement in good faith,
then that party may appeal to the Dispute Resolution procedures established in
Section 32 of this Agreement. If the parties mutually agree to and execute such
an interim agreement, the terms of such interim agreement shall prevail. Should
Xxxxxxxx not restore Transportation Capacity by the date agreed to in the
interim agreement, the interim agreement shall immediately terminate and
Customer shall, at that time, determine, in its sole discretion whether this
Agreement will continue in effect or contemporaneously terminate as well.
Alternatively, should Xxxxxxxx restore Transportation Capacity by the date
agreed to in the interim agreement, this Agreement shall immediately be
reinstated.
In any event, the term of this Agreement shall not be affected by any suspension
under this Section 31.
32. DISPUTE RESOLUTION. The parties shall attempt in good faith to resolve any
dispute arising out of or relating to this Agreement promptly by negotiation
between executives who have authority to settle the controversy and who are at a
higher level of management than the persons with direct responsibility for
administration of this contract. Any party may give the other party written
notice of any dispute not resolved in the normal course of business. Within
fifteen (15) days after delivery of the notice, the receiving party shall submit
to the other a written response. The notice and the response shall include (a) a
statement of each party's position and a summary of arguments supporting that
position, and (b) the name and title of the executive who will represent that
party and of any other person who will accompany the executive. Within thirty
(30) days after delivery of the disputing party's notice, the executives of both
parties shall meet at a mutually acceptable time and place, and thereafter as
often as they reasonably deem necessary, to attempt to resolve the dispute. All
reasonable requests for information made by one party to the other will be
honored. If the matter has not been resolved by these persons within forty-five
(45) days of the disputing party's notice, the dispute shall be referred to more
senior executives of both parties who have authority to settle the dispute and
who shall likewise meet to attempt to resolve the dispute. If the dispute has
not been resolved by negotiation within forty-five (45) days of the disputing
party's notice, or if the parties failed to meet within twenty (20) days, the
parties shall endeavor to settle the dispute by mediation under the then current
CPR Mediation Procedure. Unless otherwise agreed, the parties will select a
mediator from the CPR Panels of Distinguished Neutrals. All negotiations
pursuant to this clause are confidential and shall be treated as compromise and
settlement negotiations for purposes of applicable rules of evidence.
33. CONCLUDING PROVISIONS. This Agreement is made as an accommodation to
Customer, and in no event xxxx Xxxxxxxx' services be deemed to be those of a
public utility or common carrier. If any action is taken or threatened by any
governmental authority to declare the Terminal, Xxxxxxxx or Customer a public
utility or common carrier, Xxxxxxxx may by written notice terminate this
Agreement on the effective date of such action. Xxxxxxxx will own all
improvements to the Terminal, including those for which Customer has made a
financial contribution. The word "including" does not limit the preceding words
or terms. If any provision of this Agreement is held to be unenforceable to any
extent, the remaining provisions will be enforced to the maximum extent allowed
by law. All section titles and headings in this Agreement are merely for
convenience, and will not limit in any way the interpretation of this Agreement.
No provisions of this Agreement will be construed against or interpreted to the
disadvantage of any party by reason of such party's having drafted such
provision. Except as otherwise provided herein, the remedies provided in this
Agreement are cumulative, not exclusive, and in addition to all other remedies
in either party's favor at law, in equity or otherwise. No waiver of any breach
by either party of any terms, conditions, or obligations will be deemed a waiver
of subsequent breaches of the same or other nature. This Agreement will not be
deemed to be for the benefit of any third party, or give any other party any
right to enforce its provisions and neither this Agreement nor the parties'
performance hereunder will be deemed to have created a joint venture or
partnership between the parties. This Agreement constitutes the entire Agreement
between the parties. There are no promises, terms, conditions, representations,
warranties, or obligations other than those contained herein. Except as
otherwise provided herein, no variation or modification hereof will be deemed
valid unless it is in writing and signed by both parties.
IN WITNESS WHEREOF the parties have by their duly authorized representatives
signed this Agreement.
XXXXXXXX ENERGY MARKETING XXXXXXXX TERMINALS HOLDINGS L.P.
& TRADING COMPANY BY XXXXXXXX NGL, LLC, ITS GENERAL PARTNER
By: /s/ Xxxx Xxxxxx By: /s/ Xxx X. Xxxxx
------------------------------------ -----------------------------------
Name: Xxxx Xxxxxx Name: Xxx X. Xxxxx
------------------------------------ -----------------------------------
Title: VP Portfolio Management Title: VP, Terminal Services
------------------------------------ -----------------------------------
8
EXHIBIT A
DESCRIPTION OF PROPERTY
XXXXXXXX CRUDE OIL TERMINAL
Commencing at a point having Louisiana State Plane Coordinates of X=2,104,634.70
and Y=368,062.82, said point being the Point of Beginning;
Thence, N67 degrees 29' 04"W a distance of 313.01 feet to a 3/4" G.I.P.;
Thence, N22 degrees 27' 56"E a distance of 577.43 feet to a 3/4" G.I.P.;
Thence, S48 degrees 32' 43"E a distance of 130.00 feet to a 3/4" G.I.P.;
Thence, N35 degrees 55' 00"W a distance of 179.75 feet to a 3/4" G.I.P.;
Thence, S49 degrees 09' 06"E a distance of 170.00 feet to a 3/4" G.I.P.;
Thence, S26 degrees 01' 56" W a distance of 66.80 feet to a point;
Thence, S26 degrees 04' 42" W a distance of 161.47 feet to a point;
Thence, S22 degrees 38' 15" W a distance of 208.00 feet to a point;
Thence, S21 degrees 43' 02" W a distance of 118.04 feet to a point;
Thence, S21 degrees 15' 52" W a distance of 102.76 feet to the Point of
Beginning containing 4.52 acres.
Commencing at a point having Louisiana State Plane Coordinates of X=2,104,674.20
and Y=368,045.53, said point being the Point of Beginning;
Thence, N 22 degrees 16' 06" E a distance of 91.89 feet to a point;
Thence, N 21 degrees 43' 16" E a distance of 117.87 feet to a point;
Thence, N 22 degrees 33' 29" E a distance of 90.25 feet to a point;
Thence, S 67 degrees 32' 50" E a distance of 10.60 feet to a point;
Thence, S 19 degrees 57' 46" W a distance of 124.51 feet to a point;
Thence, S 23 degrees 51' 27" W a distance of 175.67 feet to a point;
Thence, N 67 degrees 32' 50" W a distance of 10.23 feet to the Point of
Beginning containing 0.090 acres.
Commencing at a point having Louisiana State Plane Coordinates of X=2,104,915.10
and Y=368,644.73, said point being the Point of Beginning;
Thence, N 49 degrees 08' 52" W a distance of 206.35 feet to a 3/4" G.I.P.;
Thence, N 25 degrees 54' 11" E a distance of 475.81 feet to a 3/4" G.I.P.;
Thence along a curve to the right having a Delta of 10 degrees 30' 46", a Radius
of 3148.05 feet, an Arc Length of 577.61 feet, and a Chord Bearing and Distance
of N 32 degrees 32' 34" E - 576.80 feet to a set 1/2" G.I.P.;
Thence, N 36 degrees 48' 43" E a distance of 496.04 feet to a 3/4" G.I.P.;
Thence, along a curve to the left having a Delta of 21 degrees 30' 23", a Radius
of 365.22 feet, an Arc Length of 137.09 feet, and a Chord Bearing and Distance
of S 28 degrees 48' 30" W - 136.29 feet to a set 3/4" G.I.P.;
Thence, N 12 degrees 35' 03" E a distance of 180.11 feet to a 3/4" G.I.P.;
Thence, along a curve to the right having a Delta of 15 degrees 16' 53", a
Radius of 527.09 feet, an Arc Length of 140.58 feet, and a Chord Bearing and
Distance of N 23 degrees 04' 17" E - 140.16 feet to a set 3/4" G.I.P.;
Thence, N 38 degrees 49' 06" E a distance of 177.99 feet to a 3/4" G.I.P.;
Thence, S 60 degrees 09' 00" E a distance of 148.40 feet to a 3/4" G.I.P.;
Thence, S 49 degrees 19' 35" E a distance of 96.91 feet to a 3/4" G.I.P.;
Thence, along the curve to the left having a Delta of 25 degrees 00' 00", a
Radius of 297.92 feet, an Arc Length of 129.99 feet, and a Chord Bearing and
Distance of N 58 degrees 02' 46" E - 128.96 feet to a set 3/4" G.I.P.;
Thence, along a curve to the left having a Delta of 28 degrees 33' 55", a Radius
of 267.23 feet, an Arc Length of 133.23 feet, and a Chord Bearing and Distance
of N 28 degrees 45' 34" E - 131.85 feet to a set 3/4" G.I.P.;
Thence, S 12 degrees 41' 06" W a distance of 187.21 feet to a point;
Thence, along the curve to the right having a Delta of 21 degrees 09' 46", a
Radius of 550.36 feet, an Arc Length of 203.28 feet, and a Chord Bearing and
Distance of S 28 degrees 10' 03" W - 202.13 feet to a point;
Thence, S 36 degrees 49' 03" W a distance of 497.72 feet to a point;
Thence, S 34 degrees 54' 42" W a distance of 304.43 feet to a point;
Thence, S 29 degrees 40' 22" W a distance of 239.42 feet to a point;
Thence, S 26 degrees 15' 08" W a distance of 325.55 feet to the Point of
Beginning containing 10.3 acres.
9
