HomeMy WebLinkAboutAir Liquid America Corporation
Augusta Richmond GA
DOCUMENT NAME: (hy LiC{Utde f/(YIui'eo-. CO(jlO~-h~
DOCUMENT TYPE: 0- ~Yee~L+-
YEAR: 19q1
BOX NUMBER: ;).
FILE NUMBER: I ~ 9/5
NUMBER OF PAGES: /0
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APPROVED
JAN 2 1 1997
BULK PRODUCT AGREEMENT
(AUGUSTA-RICHMOND COUNTY COMMISSION)
This Bulk Product Agreement ("Agreement ") is made and o:::J..~
entered into as of the ,:"1":"''' day of JAI\)u",C'I( , 19911,
between AIR LIQUIDE AMERICA CORPORATION ("Supplier"), with a
place of business at 1311 New Savannah Road, Augusta, Georgia
30901, and the Augusta-Richmond County Commission ("Customer"),
8th Floor, City-County Building, Augusta, Georgia.
WHEREAS, Customer is a participant in that certain program
to develop and operate a hydrogen-fueled bus, which bus is the
property of Customer; and
WHEREAS, Customer is in need of a fuel supply for said bus;
and
WHEREAS, Supplier desires to provide said fuel supply to
Customer and Customer desires to obtain said fuel supply from
Supplier.
NOW, THEREFORE, for and in consideration of the promises and
covenants contained in this Agreement, and for other good and
valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, Customer and Supplier, intending to be
legally bound, hereby agree as follows:
1. EXCLUSIVE SUPPLY AGREEMENT
1.1 Supplier agrees to sell and Customer agrees to
purchase, subject to the conditions of this Agreement, Customer's
entire requirements of the following products ("Product"), at the
following prices, charges and fees ("Price"):
Facility Product Price Cartage Monthly Estimated
($/100 SCF) Charges Facility Monthly
($/100 SCF) Fee Volume
($/month) (SCF /month)
Augusta Hydrogen $0.98 - 0 - - 0 - 100,000
"SCF" means Standard Cubic Foot measured at 70 degrees at one
atmosphere of pressure.
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1.2 The Product shall be for Customer's own use, and not
for resale, unless specifically agreed to by a signed resale
addendum. By mutual agreement of the parties, this Agreement
shall also include Customer's entire requirements of the Product
at any location to which any significant part of Customer's
operations at the Facilities may be relocated.
1.3 In view of Supplier's considerable investment in the
Systems (as described in Section 4.1 herein), and in its related
production and transportation systems, Customer agrees not to
acquire or use any Product or substitute(s), in liquid or gaseous
form, from any other source or supplier, or by any other means,
without Supplier's consent. Substitute(s) shall include but not
be limited to on-site or off-site generating systems, pipelines,
mixtures of products and cylinder products.
2. TERM AND TERMINATION
2.1 This Agreement shall be for one (1) year commencing on
the first refueling of the bus and terminating one (1) year from
commencement (!'Initial Term"). After the Initial Term, the Term
shall automatically renew from year-to-year, unless either party
gives a termination notice at least one (1) month before the
scheduled expiration of the Initial Term or the year-to-year
renewal then in existence, or unless earlier terminated in accord
with Section 2.2 below.
2.2 In the event Supplier is unable to provide Product as
required under this Agreement, Customer shall be entitled, at its
sole option, to immediately terminate this Agreement upon written
notice to Supplier.
3. DELIVERIES
3.1 All Product shall be delivered F.G.B. Supplier's
delivery vehicle to the Storage Systems (as defined in Section 4
herein). Title and risk of loss pass to Customer upon delivery.
3.2 Even if Supplier installs a telemetry system for
measuring tank volumes, it is Customer's obligation to monitor
the Product inventory levels in its Storage System and to provide
Supplier with sufficient delivery notice when ordering Product.
3.3 Supplier is not obligated to deliver Product in amounts
less than 75% of the capacity of the Storage System or more than
110% of Customer's average monthly purchases over the previous 6-
month period. When requested, Supplier will make reasonable
efforts to supply more, but the Customer will have to pay all
additional costs associated with the additional supply.
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3.4 If Supplier is unable to supply Product to Customer,
Customer may, at its sole option, obtain replacement product
elsewhere for the period of time until Customer is in need of
additional Product and Supplier is able to supply said additional
Product. This right is subject to Supplier's prior consent,
which shall not be unreasonably refused. During this period,
Customer shall make sure that the Systems are not damaged and
shall compensate Supplier if any damage occurs.
3.5 Deliveries at any time during any labor disturbance
affecting Customer shall be at Supplier's sole option. Customer
agrees that it will reimburse Supplier for any additional costs
and expenses incurred by Supplier in making such deliveries
during labor disturbances.
3.6 Deliveries of Product shall be measured by Supplier,
using the method regularly used by Supplier for the type of
delivery made.
4. OBLIGATIONS RELATING TO STORAGE SYSTEM
4.1 Supplier shall at its expense:
(a) install at its facility located at 1311 New
Savannah Road, Augusta, Georgia ("Facility")
certain equipment for the delivery of the Product
to Customer's hydrogen fueled bus. This equipment
consists of hydrogen storage, pressure regulation
and control equipment, and the provision for and
the supply of cooling water. Certain specialized
equipment is to be provided by the Customer to
include, but not be limited to, hydrogen filling
connectors and cooling water heat exchangers. The
commercial terms for the utilization of this
facility and the associated equipment is contained
in a separate agreement between Supplier, Customer
and Southeastern Technology Center, which
agreement is incorporated herein by reference and
a copy of which is attached hereto as Exhibit "A."
(b) maintain the Systems in accordance with good
industrial practice.
4.2 Customer shall at its expense:
(a) maintain adequate fire and extended coverage
insurance on Customer's equipment while at
Supplier's Facility.
(b) notify Supplier immediately of any damage,
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malfunction or change relating to the Systems.
(c) make sure that the Systems, which shall remain
Supplier's property at all times, are kept free of
all liens and other claims by third parties.
4.3 Customer shall at its expense maintain and keep free
from contamination any equipment that is provided by
Customer.
5. SUBSTITUTE SYSTEMS
5.1 If Supplier determines, after giving Customer advance
notice and opportunity to comment, that the Systems
require relocation or modification, Supplier may, at
its option, carry out the relocation or modification.
In that case, the Term of the Agreement will be
extended to a period that is the same length as the
original Initial Term and begins on the date of the
completion of the relocation or modification. The
Facility Fee may be adjusted appropriately, and
Customer's rights under Section 6 of this Agreement
shall not apply to the adjustment.
6. REVISIONS OF PRICES
6.1 From time to time Supplier shall have the right to
revise the Prices for one or more of the Product(s) by
notice to Customer and:
(a) Within 15 days after the date of the notice,
Customer shall have the right to deliver to
Supplier a copy of a current written quote,
received from a responsible supplier, for the sale
of like quantities of the Product{s) concerned on
similar terms and at a lower price or prices.
(b) If Customer does not submit a quote within 15
days, the new Prices shall apply.
(c) If Customer does submit a quote within 15 days,
Supplier shall have 15 days to match the quoted
price, or go back to the Price that preceded the
increase, or do neither.
(d) If Supplier does not match the quoted price or go
back to the Price that preceded the increase with
regard to a particular Product{s) ,Customer may
cancel this Agreement with regard to that
product{s) by giving Supplier written notice.
Whether or not Customer cancels, Supplier's new
Price shall become effective on the 60th day
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following the date of Supplier's price increase
notice.
Customer's cancellation notice must be given no
later than 10 days after the 15 day period
allotted to Supplier for matching or going back,
and must give a specific cancellation date that is
no later than 60 days after the date of Supplier's
price increase notice. If the cancellation notice
does not comply with those requirements, or if
Customer takes any deliveries of the cancelled
Product(s) from Supplier after the given
cancellation date, the cancellation will be void
and this Agreement will remain in effect for the
remainder of the Initial Term and any applicable
year-to-year renewal after that.
GENERAL CONDITIONS
7. PAYMENT
7.1 Accounts are payable within 30 days after date of
invoice at the address shown on the invoice. All taxes
on, or with respect to the sale, delivery, storage or
use of, the Product or Systems, are payable by
Customer. If Customer does not pay on time, Supplier
may place Customer on a pre-pay basis which may also
require payment of past due amount on a schedule
determined by Supplier. Supplier may also take any
other appropriate legal action.
8. EXCUSE OF PERFORMANCE
8.1 Supplier shall not be liable for its total failure to
perform in the event of circumstances beyond its
reasonable control. However, in such event, Customer
may terminate this Agreement in accordance with Section
2.2 herein.
8.2 If sufficient Product from Supplier's normal sources of
supply becomes unavailable, Customer may request that
Supplier divide available Product among its various
customers, and make every reasonable effort to obtain
Product from other sources.
8.3 Notwithstanding anything in this Agreement to the
contrary, in the event no funds or insufficient funds
are appropriated and budgeted or are otherwise
unavailable by any means whatsoever in any fiscal
period for payments due under this Agreement, Customer
will immediately notify Supplier in writing of such
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occurrence and this Agreement shall terminate on the
last day of the fiscal period for which appropriations
have been received or made, without penalty or expense
to Customer, except as to payments or portions of
payments due hereunder for which funds have been
appropriated and budgeted or are otherwise available.
Notwithstanding the foregoing, Customer agrees that:
(a) it will not cancel this Agreement and this
Agreement shall not terminate under the provisions of
this Section if any funds are appropriated to it, or by
it, for equipment, product or services similar to those
covered under this Agreement for the fiscal period in
which such termination would have otherwise occurred or
for the next succeeding fiscal period; and (b) it will
not during the term of this Agreement give priority in
the application of funds to any other functionally
similar equipment, product or services as under this
Agreement.
9. WARRANTIES
9.1 Supplier warrants that the product complies with the
Compressed Gas Association's standards and Supplier's
standard specifications, if any.
9.2 If the Product does not conform to warranty, Customer's
sole remedy is to require Supplier to replace the
Product at no cost to Customer. In order for Supplier
to be able to properly investigate, Customer must
notify Supplier of all claims relating to product
within 15 days after delivery. Otherwise, Customer
loses its right to make a claim.
SUPPLIER MAKES NO OTHER WARRANTY OF ANY KIND, EXPRESS OR
IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
10. INDEMNITY AND LIMITATION OF DAMAGES
10.1 If there is an injury, loss or damage to the person or
property of either Party or any third party, the
Parties shall share the responsibility for it based on
the relative amount of negligence attributable to each
Party. For example, if injury to an employee of
Customer is caused 65% by Supplier's negligence and 35%
by Customer's negligence, 65% of the cost relating to
the injury will be paid by Supplier and 35% will be
paid by Customer. Neither party shall ever be liable
to the other for non-economic, indirect, punitive, or
consequential damages or downtime claimed by the other.
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11. WARNING CONCERNING HAZARDOUS NATURE OF PRODUCTS TRAINING
PROGRAM.
11.1 Customer recognizes that the Products are hazardous
chemicals, classified as such by the U. S. Occupational
Safety and Health Administration ("OSHA"), and that
there are hazards associated with the possession and
use of the Products and the Systems.
11.2 Customer acknowledges that it understands the hazardous
nature of the Products and Systems and that it will
warn, protect and train, as appropriate, all persons
who may be exposed to those hazards. Customer also
acknowledges that Supplier has provided it with all
relevant Material Safety Data Sheet(s). Supplier will
provide additional Material Safety Data Sheets (up to
50 copies free). Customer is aware that OSHA
regulations may require Customer to develop and
implement a written chemical hazard communications
program for Customer's employees with respect to the
Products.
11.3 Customer understands that the Products must not be used
without first consulting the Material Safety Data
Sheet{s). Customer shall make sure that all employees,
customers and persons who might become exposed to the
Products receive and refer to copies of the Material
Safety Data Sheet{s).
12. COMPLIANCE WITH LAWS
12.1 Customer shall conform to all laws, ordinances, rules
and regulations now in force or hereafter adopted which
relate or and/or have jurisdiction over the purchase,
storage or use of the Product, use of the Systems, and
all other aspects of Customer's operations. Customer
shall obtain all permits, licenses and consents
required by such laws, ordinance, rules and
regulations, and it is the responsibility of Customer
to comply with all relevant reporting obligations under
the Emergency Planning and Community Right-to-Know Act
of 11986, 42 U.S.C. Sec. 11001-11049 [EPCRA, also
commonly known as Title III of the SuperFund Amendments
and Reauthorization Act of 1985 (SARA Title III)
resulting from the presence of the chemicals (the
Product) supplied under the Agreement. In that regard,
Customer agrees to file annually, pursuant to SARA
Title III, Section 312, and EPA regulations promulgated
thereunder, the EPA Tier I or II inventory form
covering the Product. Further, it is the
responsibility of the Customer, as stated above, to
warn and protect its employees and others exposed to
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the hazards posed by Customer's storage and use of the
Product.
13. GENERAL PROVISIONS
13.1 Declaration of Intent. Supplier has made a special
effort to write this Agreement in plain English. When
words or expressions of a general nature are used, it
is intended that they be comprehensive, unless the
context clearly dictates otherwise.
13.2 Assignment. This Agreement may be assigned with the
prior written consent of the other party, which consent
shall not be unreasonably withheld, and, in the event
of assignment, this Agreement shall be binding on the
Parties, their successors and assigns, including any
corporation with which either Party may merge or
consolidate or to which either may transfer all or a
material amount of its assets at the Facilities. The
assigning party shall obtain a written assumption of
this Agreement, in form acceptable to the other party,
from any such transferee of the assigning party's
assets.
13.3 Controlling Law. This Agreement shall be controlled by
the laws in force in the State of Georgia. The
invalidity or enforceability of any provision of this
Agreement under the laws of any state in which the
Agreement is in effect shall not affect the validity or
enforceability of any other provision of this
Agreement.
13.4 Equal Opportunity. Customer's attention is directed to
Section 202 of U.S. Executive Order 11246, paragraphs
1-7 "Equal Opportunity Clause", incorporated herein by
reference.
13.5 Further Assurances. Both Parties agree to sign all
documents and do all things necessary or appropriate,
in a timely manner, to give effect to the intention of
this Agreement.
13.6 Modifications. This Agreement constitutes the entire
agreement between the Parties concerning the subject
matter of the agreement. No provision of any purchase
order of Customer shall alter or add to the terms of
the Agreement, and any such provisions shall be void.
No modification of this Agreement shall be binding
unless it is in writing and signed by an authorized
representative of each party.
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13.7 Notices. Any notices given in connection with this
Agreement shall be sent or delivered in writing to the
receiving party at its address below:
CUSTOMER: Augusta-Richmond County Transit Department
1535 Fenwick Street
Augusta, Georgia 30904
SUPPLIER: Air Liquide America Corporation
1311 New Savannah Road
Augusta, Georgia 30901
or any substitute address that the Party might provide
by giving notice under this Agreement. Notice shall be
deemed given on the day on which it is sent by prepaid
mail or fax, or hand delivered to the receiving Party.
13.8 Waiver. The waiver by either Party of any of its
rights under this Agreement shall not be construed as
constituting a precedent.
13.9 Authority. Each party hereto represents and warrants
that the execution and performance of this Agreement
has been approved by the appropriate bodies and/or
actions of the party, and that the person executing
this Agreement below on behalf of said party is fully
authorized to do so.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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14.
FREEDOM TO CONTRACT.
14.1 Customer represents that, throughout the Term,
except as provided in Section 8.3 herein, it
shall be free to meet all obligations under this
Agreement and shall not be bound by a conflicting
agreement.
WHEREAS, the parties have set their hands and seals as of the
date first above written.
CUSTOMER
AUGUSTA-RICHMOND COUNTY
COMMISSION
, AT'M0/4:.~
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. .. .. _ ~SEAL]
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SUPPLIER
AIR LIQUIDE AMERICA CORPORATION
By ~ d, u .~.. :-)a.,t~_
Printed Name: LAAJc..e LlUlr;.NIAfll'tL7e1l.
Tit 1 e: 4 Lu::>\oI IV'" M t:. rz..
Date: \Z , IO/::J(.
ATTEST:
Corporate Secretary
[SEAL]
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