UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): August 6, 2018
ANDEAVOR LOGISTICS LP
(Exact name of registrant as specified in its charter)
Delaware | 001-35143 | 27-4151603 | ||
(State or other jurisdiction of incorporation) |
(Commission File Number) |
(IRS Employer
Identification No.) |
19100 Ridgewood Pkwy San Antonio, Texas |
78259-1828 | |
(Address of principal executive offices) | (Zip Code) |
(210) 626-6000
(Registrants telephone number, including area code)
Not Applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2.):
☐ |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
☐ |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
☐ |
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01 |
Entry into a Material Definitive Agreement. |
Contribution, Conveyance and Assumption Agreement
On August 6, 2018, Andeavor Logistics LP (the Partnership) and certain subsidiaries of the Partnership (together with the Partnership and Tesoro Logistics GP, LLC (the General Partner), the Logistics Parties) entered into a Contribution, Conveyance and Assumption Agreement (the Contribution Agreement) with Andeavor (Andeavor), Western Refining Southwest, Inc. (WRS) and certain other subsidiaries of Andeavor (together with Andeavor and WRS, the Andeavor Parties). Pursuant to the Contribution Agreement, WRS agreed to contribute, through the Partnership, to certain subsidiaries of the Partnership, the following assets (collectively, the Assets):
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approximately 1.2 million barrels of crude oil and other feedstock storage tankage and approximately 1.8 million barrels of refined product storage tankage located at the refinery at 900 Old Red Trail, N.E., Mandan, North Dakota (the Mandan Refinery), together with all related equipment, pipeline interconnections, laboratories and ancillary facilities used for the operation thereof, and all permits and licenses related to such tankage and other facilities to the extent assignable and to the extent used in connection with the ownership and operation of the assets described above; |
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approximately 0.5 million barrels of crude oil and other feedstock storage tankage and approximately 0.8 million barrels of refined product storage tankage located at the refinery at 474 West 900 North, Salt Lake City, Utah (the Salt Lake Refinery), together with all related equipment, pipeline interconnections, laboratories and ancillary facilities used for the operation thereof, and all permits and licenses related to such tankage and other facilities to the extent assignable and to the extent used in connection with the ownership and operation of the assets described above; |
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approximately 3.2 million barrels of crude oil and other feedstock storage tankage and approximately 2.8 million barrels of refined product storage tankage located at the refinery unit at 2101 East Pacific Coast Highway, Wilmington, California (the LARW Refinery Unit), together with all related equipment, pipeline interconnections, laboratories and ancillary facilities used for the operation thereof, and all permits and licenses related to such tankage and other facilities to the extent assignable and to the extent used in connection with the ownership and operation of the assets described above; |
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approximately 0.9 million barrels of crude oil and other feedstock storage tankage and approximately 0.6 million barrels of refined product storage tankage located at the refinery unit at 2350 East 223rd Street, Carson, California (the LARC Refinery Unit), together with all related equipment, pipeline interconnections, laboratories and ancillary facilities used for the operation thereof, and all permits and licenses related to such tankage and other facilities to the extent assignable and to the extent used in connection with the ownership and operation of the assets described above; |
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the rail terminal located at the Mandan Refinery for the loading and unloading of propane, butane, diesel, decanted oil, sulfur and catalyst from manifest and other railcars, together with certain rail lines connected thereto and railcar storage tracks, all related equipment and ancillary facilities used for the operation thereof, and all permits and licenses related to such rail terminal and trackage, to the extent assignable; |
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rail terminals located at the Salt Lake Refinery for the loading and unloading of ethanol, decanted cycle oil and liquefied petroleum gas from manifest and other railcars, together with certain rail lines connected thereto and railcar storage tracks, all related equipment and ancillary facilities used for the operation thereof, and all permits and licenses related to such rail terminals and trackage, to the extent assignable; |
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the rail terminal located at the LARW Refinery Unit for the loading and unloading of liquefied petroleum gas from manifest and other railcars, together with certain rail lines connected thereto and railcar storage tracks, all related equipment and ancillary facilities used for the operation thereof, and all permits and licenses related to such rail terminal and trackage, to the extent assignable; |
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the rail terminal located at the LARC Refinery Unit for the loading and unloading of liquefied petroleum gas from manifest and other railcars, together with certain rail lines connected thereto and railcar storage tracks, all related equipment and ancillary facilities used for the operation thereof, and all permits and licenses related to such rail terminal and trackage, to the extent assignable; |
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the truck rack located at the Mandan Refinery for the loading and unloading of butane and propane from trucks, together with all related equipment and ancillary facilities used for the operation thereof, and all permits and licenses related to such truck rack, to the extent assignable; |
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two truck racks located at the Salt Lake Refinery for the loading and unloading of propane, isobutene, butane and waxy crude from trucks, together with all related equipment and ancillary facilities used for the operation thereof, and all permits and licenses related to such truck racks, to the extent assignable; |
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the truck rack located at the LARW Refinery Unit for the loading and unloading of liquefied petroleum gas from trucks, together with all related equipment and ancillary facilities used for the operation thereof, and all permits and licenses related to such truck rack, to the extent assignable; |
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the truck rack located at the LARC Refinery Unit for the loading and unloading of liquefied petroleum gas from trucks, together with all related equipment and ancillary facilities used for the operation thereof, and all permits and licenses related to such truck rack, to the extent assignable; |
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the interconnecting pipeline facilities located below Sepulveda Boulevard, Alameda Street and the Long Beach Harbor Railroad and other railroad tracks, and adjoining lands between Wilmington and Carson, California (including the six-inch pipelines that are configured to deliver gasoline, distillates, gas oil and alkylation unit feedstocks from the LARC Refinery Unit to the LARW Refinery Unit and two spares), and all related equipment and ancillary facilities used for the operation thereof, and all permits and licenses related to such pipelines, to the extent assignable and to the extent used in connection with the ownership and operation of the assets described above; |
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the Mesquite truck unloading station located in Eddy County, New Mexico for the unloading of crude trucks for injection of crude into the TexNewMex pipeline, together with all related equipment and ancillary facilities used for the operation thereof, and all permits and licenses related to such truck unloading station, to the extent assignable; |
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the Yucca truck unloading station located in Eddy County, New Mexico for the unloading of crude trucks for injection of crude into the TexNewMex pipeline, together with all related equipment and ancillary facilities used for the operation thereof, and all permits and licenses related to such truck unloading station, to the extent assignable; |
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the Mason East truck unloading and injection station located in Reeves County, Texas that receives crude via the T-Station line and trucks for injection into the Kinder Morgan and Bobcat Pipeline, together with all related equipment and ancillary facilities used for the operation thereof, and all permits and licenses related to such unloading and injection station, to the extent assignable (the Mason East Station); |
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the Jackrabbit (Wink) truck unloading and injection station located in Winkler County, Texas that receives crude via the T-Station line and trucks for injection of crude into the Kinder Morgan and Bobcat Pipeline, together with all related equipment and ancillary facilities used for the operation thereof, and all permits and licenses related to such unloading and injection station, to the extent assignable (the Wink Station); |
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the Jal storage, injection and rail unloading facility located in Lea County, New Mexico that stores and supplies natural gas liquids for use in Andeavors El Paso refinery via rail connections, together with all related equipment and ancillary facilities used for the operation thereof, and all permits and licenses related to such storage, injection and rail facility, to the extent assignable; |
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(i) approximately 0.1 million barrels of natural gas liquid storage tankage, (ii) the rail and truck terminal for the loading and unloading of natural gas liquids from manifest and other railcars and trucks, together with certain rail lines connected thereto and railcar storage tracks, and (iii) the waterline, in each case located at the Wingate facility near Gallup, New Mexico, together with all related equipment and ancillary facilities used for the operation thereof, and all permits and licenses related to such facility, to the extent assignable; |
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approximately 0.6 million barrels of crude oil and other feedstock storage tankage located at Koch Pipeline Company L.P.s Clearbrook terminal in Clearbrook, Minnesota, together with all related equipment, pipeline interconnections, laboratories and ancillary facilities used for the operation thereof, and all permits and licenses related to such tankage and other facilities to the extent assignable and to the extent used in connection with the ownership and operation of the assets described above; |
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the sixteen-inch Bobcat Pipeline that transports crude oil between the Mason East Station in Reeves County, Texas to the Wink Station in Winkler County, Texas, and all related equipment and ancillary facilities used for the operation thereof, and all permits and licenses related to such pipeline, to the extent assignable and to the extent used in connection with the ownership and operation of the assets described above; |
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the twelve-inch Benny Pipeline that delivers crude oil from the Conan terminal in Loving, Texas to a connection with WRP (as defined below) gathering lines near Battle Axe in Lea County, New Mexico, and all related equipment and ancillary facilities used for the operation thereof, and all permits and licenses related to such pipeline, to the extent assignable and to the extent used in connection with the ownership and operation of the assets described above; |
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the 8-inch Aranco Pipeline that is configured to deliver petroleum products from the St. Paul Refining refinery in St. Paul Park, Minnesota to its Cottage Grove, Minnesota tankage, and all related equipment and ancillary facilities used for the operation thereof, and all permits and licenses related to such pipeline, to the extent assignable and to the extent used in connection with the ownership and operation of the assets described above; |
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all of the issued and outstanding limited liability company interests in: (i) Tesoro Great Plains Midstream LLC, (2) Andeavor MPL Holdings LLC, (3) Andeavor Logistics CD LLC, (4) Western Refining Conan Gathering, LLC, (5) Western Refining Delaware Basin Storage, LLC, and (6) Asphalt Terminals LLC (ATL), and 67% of all of the issued and outstanding limited liability company interests in Andeavor Logistics Rio Pipeline LLC; and |
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certain related real property interests as set forth on Schedule A to the Contribution Agreement. |
On August 6, 2018, the Partnership completed the acquisition of the Assets as contemplated by the Contribution Agreement (the Contribution) in exchange for its payment to WRS of $1.55 billion, comprised of (i) $300 million in cash financed with borrowings under the Senior Secured Revolving Credit Agreement dated as of January 29, 2016, among the Partnership, Bank of America, N. A., as administrative agent, and the other lenders party thereto, and (ii) 28,283,742 newly issued common units of the Partnership with a fair value of $1.25 billion.
In connection with the Contribution, the applicable Logistics Parties and Andeavor Parties entered into certain commercial agreements and other agreements, as described below.
The foregoing description of the Contribution Agreement is not complete and is qualified in its entirety by reference to the Contribution Agreement, which is filed as Exhibit 2.1 to this Current Report on Form 8-K and incorporated herein by reference.
Second Amended and Restated Schedules to the Fourth Amended and Restated Omnibus Agreement
Effective August 6, 2018, the Partnership entered into the Second Amended and Restated Schedules to the Fourth Amended and Restated Omnibus Agreement (the Amended Omnibus Schedules) with the General Partner, Andeavor, Tesoro Refining & Marketing Company LLC (TRMC), Tesoro Alaska Company LLC (TAC) and Tesoro Companies, Inc. (TCI), which amend and restate the schedules to the Fourth Amended and Restated Omnibus Agreement to include the Assets.
The foregoing description is not complete and is qualified in its entirety by reference to the Amended Omnibus Schedules, which are filed as Exhibit 10.1 to this Current Report on Form 8-K and incorporated herein by reference.
Master Terminalling Services Agreement
Effective August 6, 2018, certain Logistics Parties and certain Andeavor Parties entered into a Master Terminalling Services Agreement (the Master Terminalling Services Agreement) pursuant to which the applicable Logistics Parties will provide the applicable Andeavor Parties with terminal throughput services, dedicated storage services, rail loading and unloading services and storage, pumping, blending and trans-shipment services and any other services agreed upon by such Logistics Parties and such Andeavor Parties.
The initial term of the Master Terminalling Services Agreement is ten years, and the Andeavor Parties have the option to extend the term for up to two renewal options of five years each. For up to two years after the termination of the Master Terminalling Services Agreement, and provided the termination was not due to the Andeavor Parties default, the Andeavor Parties may exercise a right of first refusal on any new master terminalling services agreement the Logistics Parties offer to a third party.
The foregoing description is not complete and is qualified in its entirety by reference to the Master Terminalling Services Agreement, which is filed as Exhibit 10.2 to this Current Report on Form 8-K and incorporated herein by reference.
Construction Service Agreement
Effective August 6, 2018, Tesoro SoCal Pipeline Company LLC (Tesoro SoCal) entered into a Construction Service Agreement (the Construction Service Agreement) with TRMC in support of the design, engineering, construction and testing of pipelines to interconnect the Carson unit and the Wilmington unit of TRMCs refinery in Los Angeles, California (the LAR Interconnecting Pipelines). The construction is contemplated to be completed on or before December 31, 2018.
The foregoing description is not complete and is qualified in its entirety by reference to the Construction Service Agreement, which is filed as Exhibit 10.3 to this Current Report on Form 8-K and incorporated herein by reference.
Transportation Services Agreement
Effective August 6, 2018, Tesoro SoCal entered into a Transportation Services Agreement with TRMC (the Transportation Services Agreement) to govern the provision of throughput service on the LAR Interconnecting Pipelines by Tesoro SoCal to TRMC. The initial term of the Transportation Services Agreement is ten years, and TRMC has the option to extend the term for up to two renewal options of five years each. If TRMC does not extend the initial term, Tesoro SoCal may extend the term for an additional two years. After the termination of the Transportation Services Agreement and provided the termination was not due to TRMCs default, TRMC may exercise a right of first refusal on any new transportation services agreement Tesoro SoCal offers to a third party.
Under the Transportation Services Agreement, the LAR Interconnecting Pipelines will be dedicated exclusively to the use of TRMC, and Tesoro SoCal may not use the pipelines to provide services for any third party. In exchange for these services, TRMC will pay the fees specified in an applicable pipeline service order to be executed by Tesoro SoCal and TRMC. All fees under the Transportation Services Agreement will be indexed for inflation.
The foregoing description is not complete and is qualified in its entirety by reference to the Transportation Services Agreement, which is filed as Exhibit 10.4 to this Current Report on Form 8-K and incorporated herein by reference.
Master Unloading and Storage Agreement
Effective August 6, 2018, Western Refining Pipeline, LLC (WRP) and Western Refining Company, L.P. (WRCL) entered into a Master Unloading and Storage Agreement (the Master Unloading and Storage Agreement) to govern the provision of crude oil unloading and storage services by WRP to WRCL. The initial term of the Master Unloading and Storage Agreement is ten years, and WRCL has the option to extend the term for up to two renewal terms of five years each. If WRCL does not extend the initial term, WRP may extend the term for an additional two years.
Under the Master Unloading and Storage Agreement, WRP will, among other things, make its crude oil unloading station and storage facilities commonly known as the Mesquite Terminal, Yucca Terminal, Mason East Station and Wink Jackrabbit Terminal available to receive and unload crude oil from WRCLs designated trucks on a 24/7/365 basis and will store such crude oil in dedicated storage. WRCL will pay the fees specified in an applicable service order to be executed by WRCL and WRP related to the services rendered under the Master Unloading and Storage Agreement. All fees under the Master Unloading and Storage Agreement will be indexed for inflation.
The foregoing description is not complete and is qualified in its entirety by reference to the Master Unloading and Storage Agreement, which is filed as Exhibit 10.5 to this Current Report on Form 8-K and incorporated herein by reference.
Asphalt Terminalling, Transportation and Storage Services Agreement
Effective August 6, 2018, WRCL and ATL entered into an Asphalt Terminalling, Transportation and Storage Services Agreement (the Asphalt Services Agreement) to govern the provision of asphalt terminalling, transportation and storage services by ATL to WRCL. The initial term of the Asphalt Services Agreement is ten years, and WRCL has the option to extend the term for up to two renewal terms of five years each. If WRCL does not extend the initial term, ATL may extend the term for an additional two years. After the termination of the Asphalt Services Agreement and provided the termination was not due to WRCLs default, WRCL may exercise a right of first refusal on any new storage agreement ATL offers to a third party.
Under the Asphalt Services Agreement, ATL will provide WRCL, among other things, asphalt storage, throughput, processing and blending services. WRCL will pay the fees specified in an applicable service order to be executed by WRCL and ATL related to the services rendered under the Asphalt Services Agreement. All fees under the Asphalt Services Agreement will be indexed for inflation.
The foregoing description is not complete and is qualified in its entirety by reference to the Asphalt Services Agreement, which is filed as Exhibit 10.6 to this Current Report on Form 8-K and incorporated herein by reference.
Relationships
Each of the Partnership, the General Partner, WRP and the other Logistics Parties as well as TRMC, TAC, TCI, ATL and WRCL is a direct or indirect subsidiary of Andeavor. As a result, certain individuals, including officers and directors of Andeavor and the General Partner, serve as officers and/or directors of more than one of such other entities. After the Contribution, the General Partner, as the general partner of the Partnership, holds a non-economic general partner interest in, and 88,624,852 common units of, the Partnership, which represent approximately 36.1% of the outstanding common units of the Partnership. Andeavor, through WRS, owns 67,548,276 common units of the Partnership, which represent approximately 27.5% of the outstanding common units of the Partnership, in addition to the non-economic general partner interest and the common units in the Partnership held by the General Partner, as discussed above. Andeavor also holds, through WRS, 80,000 TexNew Mex units representing limited partner interests in the Partnership and a special limited partner interest in the Partnership.
Item 2.01 |
Completion of Acquisition or Disposition of Assets. |
The description in Item 1.01 above of the closing of the Contribution is incorporated into this Item 2.01 by reference.
Item 2.03 |
Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant. |
The description in Item 1.01 above of the closing of the Contribution is incorporated into this Item 2.03 by reference.
Item 3.02 |
Unregistered Sales of Equity Securities. |
The description in Item 1.01 above of the issuance of common units by the Partnership on August 6, 2018, as partial consideration for the Contribution, is incorporated into this Item 3.02 by reference. This issuance was undertaken in reliance upon the exemption from the registration requirements of the Securities Act of 1933, as amended (the Securities Act) afforded by Section 4(a)(2) thereof. We believe that exemptions other than the foregoing exemption may exist for these transactions.
Item 5.03 |
Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
Third Amended and Restated Limited Liability Company Agreement of Tesoro Logistics GP, LLC
Effective August 6, 2018, the General Partner, WRS, TRMC and TAC entered into the Third Amended and Restated Limited Liability Company Agreement of Tesoro Logistics GP, LLC (the General Partner A&R LLC Agreement) to reflect the transfer of Andeavors direct and indirect membership interests in the General Partner to WRS.
The foregoing description is not complete and is qualified in its entirety by reference to the General Partner A&R LLC Agreement, which is filed as Exhibit 3.1 to this Current Report on Form 8-K and is incorporated herein by reference.
Forward Looking Statements
This communication contains certain statements that are forward-looking statements within the meaning of Section 27A of the Securities Act and Section 21E of the Securities Exchange Act of 1934. Words such as may, will, could, anticipate, estimate, expect, predict, project, future, potential, intend, plan, assume, believe, forecast, look, build, focus, create, work, continue or the negative of such terms or other variations thereof and words and terms of similar substance used in connection with any discussion of future plans, actions, or events identify forward-looking statements, which involve risks, uncertainties and assumptions that are difficult to predict. They include, without limitation, statements related to the expected completion date of the construction of the LAR Interconnecting Pipelines. These forward-looking statements are not historical facts but instead represent only our belief regarding future events, many of which, by their nature, are inherently uncertain and outside of our control. A number of factors could cause our actual results to differ, possibly materially, from the anticipated results indicated in or implied by these forward-looking statements. Such factors include those detailed in our annual reports on Form 10-K, quarterly reports on Form 10-Q and other public filings and press releases, available on our website at http://andeavorlogistics.com and on the SECs website at http://www.sec.gov. Our forward-looking statements are based on assumptions that we consider to be reasonable but that may not prove to be accurate. We undertake no obligation to publicly release the result of any revisions to any such forward-looking statements that may be made to reflect events or circumstances that occur, or which we become aware of, except as required by applicable law or regulation. Readers are cautioned not to place undue reliance on these forward-looking statements, which speak only as of the date hereof.
Item 9.01 |
Financial Statements and Exhibits. |
(d) Exhibits .
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Date: August 7, 2018
ANDEAVOR LOGISTICS LP | ||
By: | Tesoro Logistics GP, LLC | |
Its general partner | ||
By: |
/s/ Blane W. Peery |
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Blane W. Peery | ||
Vice President and Controller |
Exhibit 2.1
Execution Version
CONTRIBUTION, CONVEYANCE AND ASSUMPTION
AGREEMENT
This Contribution, Conveyance and Assumption Agreement (this Agreement ), effective as of August 6, 2018 (the Effective Date ), is by and among Andeavor Logistics LP (the Partnership ), Tesoro Logistics Operations LLC (the Operating Company ), Tesoro Logistics Pipelines LLC ( TLP ), Western Refining Terminals, LLC ( WRT ), Western Refining Pipeline, LLC ( WRP ), Tesoro High Plains Pipeline Company LLC ( THPPC ), Western Refining Logistics LP (WRLP), Tesoro SoCal Pipeline Company LLC ( TSPC ), WNRL Energy LLC ( WNRL , and collectively with the Partnership, the Operating Company, TLP, WRT, WRP, THPPC, WRLP, and TSPC, the Logistics Parties );
and
Andeavor ( Andeavor ), Tesoro Refining & Marketing Company LLC ( TRMC ), Western Refining Southwest, Inc. ( WRS ), Tesoro Great Plains Gathering & Marketing LLC ( TGPGM ), Tesoro Great Plains Midstream LLC ( TGPM and collectively with Andeavor, TRMC, WRS, TGPGM and TGPM, the Andeavor Parties ).
The above-named entities are sometimes referred to in this Agreement individually as a Party and collectively as the Parties .
RECITALS
WHEREAS , WRS is the owner of:
a) |
approximately 1.2 million barrels of crude oil and other feedstock storage tankage and approximately 1.8 million barrels of refined product storage tankage located at the refinery at 900 Old Red Trail, N.E., Mandan, North Dakota (the Mandan Refinery ), together with all related equipment, pipeline interconnections, laboratories and ancillary facilities used for the operation thereof, and all permits and licenses related to such tankage and other facilities to the extent assignable and to the extent used in connection with the ownership and operation of the assets described above, which assets are listed in detail on Exhibit A hereto (the Mandan Tankage ); |
b) |
approximately 0.5 million barrels of crude oil and other feedstock storage tankage and approximately 0.8 million barrels of refined product storage tankage located at the refinery at 474 West 900 North, Salt Lake City, Utah (the Salt Lake Refinery ), together with all related equipment, pipeline interconnections, laboratories and ancillary facilities used for the operation thereof, and all permits and licenses related to such tankage and other facilities to the extent assignable and to the extent used in connection with the ownership and operation of the assets described above, which assets are listed in detail on Exhibit B hereto (the Salt Lake Tankage ); |
c) |
approximately 3.2 million barrels of crude oil and other feedstock storage tankage and approximately 2.8 million barrels of refined product storage tankage located at the refinery unit at 2101 East Pacific Coast Highway, Wilmington, California (the LARW Refinery Unit ), together with all related equipment, pipeline interconnections, laboratories and ancillary facilities used for the operation thereof, and all permits and licenses related to such tankage and other facilities to the extent assignable and to the extent used in connection with the ownership and operation of the assets described above, which assets are listed in detail on Exhibit C hereto (the LARW Tankage ); |
d) |
approximately 0.9 million barrels of crude oil and other feedstock storage tankage and approximately 0.6 million barrels of refined product storage tankage located at the refinery unit at 2350 East 223 rd Street, Carson, California (the LARC Refinery Unit ), together with all related equipment, pipeline interconnections, laboratories and ancillary facilities used for the operation thereof, and all permits and licenses related to such tankage and other facilities to the extent assignable and to the extent used in connection with the ownership and operation of the assets described above, which assets are listed in detail on Exhibit C hereto (the LARC Tankage ); |
e) |
the rail terminal located at the Mandan Refinery for the loading and unloading of propane, butane, diesel, decanted oil, sulfur and catalyst from manifest and other railcars, together with certain rail lines connected thereto and railcar storage tracks, all related equipment and ancillary facilities used for the operation thereof, and all permits and licenses related to such rail terminal and trackage, to the extent assignable, which assets are listed in detail on Exhibit A hereto (the Mandan Rail Rack and Trackage ); |
f) |
rail terminals located at the Salt Lake Refinery for the loading and unloading of ethanol, decanted cycle oil and liquefied petroleum gas from manifest and other railcars, together with certain rail lines connected thereto and railcar storage tracks, all related equipment and ancillary facilities used for the operation thereof, and all permits and licenses related to such rail terminals and trackage, to the extent assignable, which assets are listed in detail on Exhibit B hereto (the Salt Lake Rail Rack and Trackage ); |
g) |
the rail terminal located at the LARW Refinery Unit for the loading and unloading of liquefied petroleum gas from manifest and other railcars, together with certain rail lines connected thereto and railcar storage tracks, all related equipment and ancillary facilities used for the operation thereof, and all permits and licenses related to such rail terminal and trackage, to the extent assignable, which assets are listed in detail on Exhibit C hereto (the LARW Rail Rack and Trackage ); |
h) |
the rail terminal located at the LARC Refinery Unit for the loading and unloading of liquefied petroleum gas from manifest and other railcars, together with certain rail lines connected thereto and railcar storage tracks, all related equipment and ancillary facilities used for the operation thereof, and all permits and licenses related to such rail terminal and trackage, to the extent assignable, which assets are listed in detail on Exhibit C hereto (the LARC Rail Rack and Trackage ); |
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i) |
the truck rack located at the Mandan Refinery for the loading and unloading of butane and propane from trucks, together with all related equipment and ancillary facilities used for the operation thereof, and all permits and licenses related to such truck rack, to the extent assignable, which assets are listed in detail on Exhibit A hereto (the Mandan LPG Truck Rack ); |
j) |
two truck racks located at the Salt Lake Refinery for the loading and unloading of propane, isobutene, butane and waxy crude from trucks, together with all related equipment and ancillary facilities used for the operation thereof, and all permits and licenses related to such truck racks, to the extent assignable, which assets are listed in detail on Exhibit B hereto (the Salt Lake Refinery Truck Racks ); |
k) |
the truck rack located at the LARW Refinery Unit for the loading and unloading of liquefied petroleum gas from trucks, together with all related equipment and ancillary facilities used for the operation thereof, and all permits and licenses related to such truck rack, to the extent assignable, which assets are listed in detail on Exhibit C hereto (the LARW LPG Truck Rack ); |
l) |
the truck rack located at the LARC Refinery Unit for the loading and unloading of liquefied petroleum gas from trucks, together with all related equipment and ancillary facilities used for the operation thereof, and all permits and licenses related to such truck rack, to the extent assignable, which assets are listed in detail on Exhibit C hereto (the LARC LPG Truck Rack ); |
m) |
the interconnecting pipeline facilities located below Sepulveda Boulevard, Alameda Street and the Long Beach Harbor Railroad and other railroad tracks, and adjoining lands between Wilmington and Carson, California (including the six-inch pipelines that are configured to deliver gasoline, distillates, gas oil and alkylation unit feedstocks from the LARC Refinery Unit to the LARW Refinery Unit and two spares), and all related equipment and ancillary facilities used for the operation thereof, and all permits and licenses related to such pipelines, to the extent assignable and to the extent used in connection with the ownership and operation of the assets described above, which assets are listed in detail on Exhibit D hereto (the LA Refinery Interconnecting Pipeline ); |
n) |
the Mesquite truck unloading station located in Eddy County, New Mexico for the unloading of crude trucks for injection of crude into the TexNewMex pipeline, together with all related equipment and ancillary facilities used for the operation thereof, and all permits and licenses related to such truck unloading station, to the extent assignable, which assets are listed in detail on Exhibit E hereto (the Mesquite Truck Station ); |
o) |
the Yucca truck unloading station located in Eddy County, New Mexico for the unloading of crude trucks for injection of crude into the TexNewMex pipeline, together with all related equipment and ancillary facilities used for the operation thereof, and all permits and licenses related to such truck unloading station, to the extent assignable, which assets are listed in detail on Exhibit F hereto (the Yucca Truck Station ); |
3
p) |
the Mason East truck unloading and injection station located in Reeves County, Texas that receives crude via the T-Station line and trucks for injection into the Kinder Morgan and Bobcat Pipeline, together with all related equipment and ancillary facilities used for the operation thereof, and all permits and licenses related to such unloading and injection station, to the extent assignable, which assets are listed in detail on Exhibit G hereto (the Mason East Station ); |
q) |
the Jackrabbit (Wink) truck unloading and injection station located in Winkler County, Texas that receives crude via the T-Station line and trucks for injection of crude into the Kinder Morgan and Bobcat Pipeline, together with all related equipment and ancillary facilities used for the operation thereof, and all permits and licenses related to such unloading and injection station, to the extent assignable, which assets are listed in detail on Exhibit H hereto (the Wink Station ); |
r) |
the Jal storage, injection and rail unloading facility located in Lea County, New Mexico that stores and supplies natural gas liquids for use in Andeavors El Paso refinery via rail connections, together with all related equipment and ancillary facilities used for the operation thereof, and all permits and licenses related to such storage, injection and rail facility, to the extent assignable, which assets are listed in detail on Exhibit I hereto (the Jal NGL Storage Facility ); |
s) |
(i) approximately 0.1 million barrels of natural gas liquid storage tankage, (ii) the rail and truck terminal for the loading and unloading of natural gas liquids from manifest and other railcars and trucks, together with certain rail lines connected thereto and railcar storage tracks, and (iii) the waterline, in each case located at the Wingate facility near Gallup, New Mexico, together with all related equipment and ancillary facilities used for the operation thereof, and all permits and licenses related to such facility, to the extent assignable, which assets are listed in detail on Exhibit J hereto (the Wingate Terminal ); |
t) |
approximately 0.6 million barrels of crude oil and other feedstock storage tankage located at Koch Pipeline Company L.P.s Clearbrook terminal in Clearbrook, Minnesota, together with all related equipment, pipeline interconnections, laboratories and ancillary facilities used for the operation thereof, and all permits and licenses related to such tankage and other facilities to the extent assignable and to the extent used in connection with the ownership and operation of the assets described above, which assets are listed in detail on Exhibit K hereto (the Clearbrook Tankage ); |
u) |
the sixteen-inch Bobcat Pipeline that transports crude oil between the Mason East Station in Reeves County, Texas to the Wink Station in Winkler County, Texas, and all related equipment and ancillary facilities used for the operation thereof, and all permits and licenses related to such pipeline, to the extent assignable and to the extent used in connection with the ownership and operation of the assets described above, which assets are listed in detail on Exhibit L hereto (the Bobcat Pipeline ); |
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v) |
the twelve-inch Benny Pipeline that delivers crude oil from the Conan terminal in Loving, Texas to a connection with WRP gathering lines near Battle Axe in Lea County, New Mexico, and all related equipment and ancillary facilities used for the operation thereof, and all permits and licenses related to such pipeline, to the extent assignable and to the extent used in connection with the ownership and operation of the assets described above, which assets are listed in detail on Exhibit M hereto (the Benny Pipeline ); and |
w) |
the 8-inch Aranco Pipeline that is configured to deliver petroleum products from the St. Paul Refining refinery in St. Paul Park, Minnesota to its Cottage Grove, Minnesota tankage, and all related equipment and ancillary facilities used for the operation thereof, and all permits and licenses related to such pipeline, to the extent assignable and to the extent used in connection with the ownership and operation of the assets described above, which assets are listed in detail on Exhibit N hereto (the Aranco Pipeline ); |
WHEREAS , WRS is the owner of all of the issued and outstanding limited liability company interests in: (1) TGPM (the TGPM Units ), (2) Andeavor MPL Holdings LLC (the MPL Units ), (3) Andeavor CD (the Andeavor CD Units ), (4) Western Refining Conan Gathering, LLC (the WRCG Units ), (5) Western Refining Delaware Basin Storage, LLC (the WRDBS Units ), and (6) Asphalt Terminals LLC (the ATL Units ), and WRS is the owner of 67% of all of the issued and outstanding limited liability company interests in Andeavor Rio (the Andeavor Rio Units );
WHEREAS , WRS owns the various real property interests set forth in detail on Schedule A (the Real Property Interests ), and for the avoidance of doubt, the term Real Property Interests shall expressly exclude the real property under each of the Mandan Refinery, Salt Lake Refinery, LARW Refinery Unit and LARC Refinery Unit owned by TRMC (said real property being referred to, collectively, as the TRMC Real Property ); and
WHEREAS , in exchange for the Cash Consideration (as defined below) and the Equity Consideration (as defined below), WRS desires to contribute the Assets (as defined below), the Units (as defined below), and the Real Property Interests to the Partnership, which the Partnership desires to contribute to the applicable Logistics Parties, and concurrently with the contribution of the Assets, the Real Property Interests and the Units, the applicable Andeavor Parties and the applicable Logistics Parties desire to enter into the Contracts (as defined below), all on the terms and conditions set forth herein.
NOW, THEREFORE , in consideration of the mutual covenants, representations, warranties and agreements herein contained, the Parties hereto agree as follows:
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ARTICLE I
CONTRIBUTIONS AND ACKNOWLEDGEMENTS
Section 1.1 Conveyance of Assets by WRS to the Partnership .
(a) Effective as of immediately prior to the Effective Time, WRS hereby assigns, transfers, contributes, grants, bargains, conveys, sets over and delivers to the Partnership, its successors and its assigns, for its and their own use forever, the entire right, title, interest, responsibilities, coverages and liabilities of WRS in and to the Assets and Real Property Interests, including any responsibilities, coverages and liabilities related to the Assets and Real Property Interests, free and clear of all liens and encumbrances of any kind or nature, other than as set forth on Exhibit O to this Agreement (the Permitted Liens ). In addition, concurrently with the contribution of the Assets and the Real Property Interests, certain Andeavor Parties are also executing and delivering the Contracts and the Real Property Conveyance Documents (as defined in Schedule A) to which each is a party. The contribution of the Assets and the Real Property Interests and execution and delivery of the Contracts and documents described in this Section 1.1(a) shall be referred to in this Agreement as the WRS Asset Contribution .
(b) In consideration for the WRS Asset Contribution and the WRS Unit Contribution (as defined below), the Partnership will, as of the Effective Time:
(i) distribute cash to WRS equal to $300,000,000 in the aggregate (the Cash Consideration ); and
(ii) issue to WRS a number of Common Units with an aggregate value equal to $1,250,000,000 (the Equity Consideration ), which number of Common Units, rounded down to the next lowest number of whole units, shall be (A) the amount of the Equity Consideration, divided by (B) the average closing price of the Common Units for the last ten (10) trading days prior to August 3, 2018.
(c) To effect the distribution of the Cash Consideration, the Partnership shall borrow an amount equal to the Cash Consideration under indebtedness for which no partner of the Partnership or any related person other than WRS bears the economic risk of loss (as defined by Treasury Regulations Section 1.752-2) and the Partnership shall cause the proceeds of such indebtedness to be wire transferred directly from the applicable lender to an account designated by WRS in a manner such that the proceeds of such borrowing are allocable to the distribution of the Cash Consideration to WRS pursuant to Treasury Regulations § 1.707-5(b)(1) and Temporary Treasury Regulation 1.163-8T (such borrowing, and any refinancing of such borrowing treated as the liability it refinances pursuant to Treasury Regulations § 1.707-5(c), the Partnership Debt ).
(d) After the distribution of the Cash Consideration to WRS by the Partnership, WRS will provide a loan to Andeavor of up to the amount of the Cash Consideration, and Andeavor will execute and deliver a ten-year promissory note in favor of WRS to evidence the funds loaned by WRS to Andeavor.
(e) The Partnership hereby accepts the WRS Asset Contribution as a contribution to the capital of the Partnership.
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(f) The Parties hereby acknowledge that the Excluded Assets and Liabilities are being retained by WRS and are not being contributed or transferred as part of the WRS Asset Contribution.
Section 1.2 Conveyance of Assets by the Partnership to other Logistics Parties . Effective immediately after the WRS Asset Contribution, the Partnership hereby assigns, transfers, contributes, grants, bargains, conveys, sets over and delivers:
(a) the Jal NGL Storage Facility and the Real Property Interest related thereto (the Group A Assets ) to WRLP;
(b) the Bobcat Pipeline, the Benny Pipeline, the Mesquite Truck Station, the Yucca Truck Station, the Mason East Station and the Wink Station and the Real Property Interest related thereto (together, the Group B Assets ) to WRLP;
(c) the Wingate Terminal and the Real Property Interest related thereto (the Group C Assets ) to WRLP;
(d) the Clearbrook Tankage and the Real Property Interest related thereto (the Group D Assets ) to the Operating Company;
(e) the Mandan Tankage, the Salt Lake Tankage, the LARW Tankage, the LARC Tankage, the Mandan Rail Rack and Trackage, the Salt Lake Rail Rack and Trackage, the LARW Rail Rack and Trackage, the LARC Rail Rack and Trackage, the Mandan LPG Truck Rack, the Salt Lake Refinery Truck Racks, the LARW LPG Truck Rack and the LARC LPG Truck Rack (together, the Group E Assets ) to the Operating Company;
(f) the LA Refinery Interconnecting Pipeline (the Group F Assets ) to the Operating Company; and
(g) the Aranco Pipeline and the Real Property Interest related thereto (the Group G Assets ) to the Operating Company;
in each case, its successors and its assigns, for its and their own use forever, the entire right, title, interest, responsibilities, coverages and liabilities of the Partnership in and to such Assets and Real Property Interests, including any responsibilities, coverages and liabilities related to the Assets and Real Property Interests, free and clear of all liens and encumbrances of any kind or nature, other than the Permitted Liens.
In addition, concurrently with the contribution of the Assets, the Partnership, the Operating Company, and certain other Logistics Parties are also executing and delivering the Contracts and the Real Property Conveyance Documents to which they are parties. The contributions of the Assets and the Real Property Interests and execution and delivery of the Contracts described in this Section 1.2 shall be referred to in this Agreement as the Partnership Contribution . The Partnership hereby makes the Partnership Contribution as capital contributions to the capital of the Operating Company and WRLP, and such parties hereby accept such contributions as contributions to their capital.
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Section 1.3 Conveyance of Certain Assets by Certain Logistics Parties to Other Logistics Parties . Effective immediately after the Partnership Contribution, the following Logistics Parties convey certain Assets to certain other Logistics Parties as described below:
(a) the Operating Company shall assign, transfer, contribute, grant, bargain, convey, set over and deliver to TSPC the Group F Assets;
(b) WRLP shall assign, transfer, contribute, grant, bargain, convey set over and deliver to WNRL the Group A Assets, the Group B Assets, and the Group C Assets;
(c) After giving effect to the conveyance set forth in Section 1.3(b) , WNRL shall assign, transfer, contribute, grant, bargain, convey set over and deliver:
(i) to WRP, the Group B Assets; and
(ii) to WRT, the Group A Assets and the Group C Assets;
in each case, its successors and its assigns, for its and their own use forever, the entire right, title, interest, responsibilities, coverages and liabilities of the party conveying the Asset described in this Section 1.3 . Each party conveying an Asset pursuant to this Section 1.3 makes such contribution as a capital contribution to the capital of the party receiving such Asset, and the party receiving such Asset hereby accepts such contribution as a contribution to its capital.
Section 1.4 Conveyance of the Units by WRS to the Partnership . Effective as of the Effective Date, WRS hereby assigns, transfers, contributes, grants, bargains, conveys, sets over and delivers to the Partnership, its successors and its assigns, for its and their own use forever, the entire right, title, interest, responsibilities, coverages and liabilities of WRS in and to the Units, free and clear of all liens and encumbrances of any kind or nature, other than the Permitted Liens. The contribution described in this Section 1.4 shall be referred to as the WRS Unit Contribution . The Partnership hereby accepts the WRS Unit Contribution as a contribution to the capital of the Partnership.
Section 1.5 Conveyance of the Units by the Partnership to other Logistics Parties . Effective immediately after the WRS Unit Contribution, the Partnership hereby assigns, transfers, contributes, grants, bargains, conveys, sets over and delivers:
(a) the TGPM Units, the MPL Units, the Andeavor Rio Units and the Andeavor CD Units to the Operating Company; and
(b) the ATL Units, the WRCG Units and the WRDBS Units to WRLP.
in each case, its successors and its assigns, for its and their own use forever, the entire right, title, interest, responsibilities, coverages and liabilities of the Partnership in and to the Units (collectively, the Partnership Unit Contribution ). The Partnership hereby makes such contributions as capital contributions to the capital of the Operating Company and WRLP, and such parties hereby accept such contributions as contributions to their capital.
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Section 1.6 Conveyance of Certain Units by Certain Logistics Parties to Certain Other Logistics Parties . Effective immediately after the Partnership Unit Contribution, the following Logistics Parties shall convey certain Units to other certain other Logistics Parties as described below:
(a) the Operating Company assigns, transfers, contributes, grants, bargains, conveys, sets over and delivers to TLP the Andeavor Rio Units and the Andeavor CD Units;
(b) WRLP assigns, transfers, contributes, grants, bargains, conveys, sets over and delivers to WNRL the ATL Units, the WRCG Units and the WRDBS Units and, immediately after giving effect to such conveyance of the ATL Units, the WRCG Units and the WRDBS Units, WNRL assigns, transfers, contributes, grants, bargains, conveys, sets over and delivers the WRCG Units to WRP and the WRDBS Units and the ATL Units to WRT; and
(c) TGPM assigns, transfers, distributes, grants, bargains, conveys, sets over and delivers to the Operating Company all of the issued and outstanding limited liability company interests (the BLP Units ) in BakkenLink Pipeline LLC and, immediately after giving effect to such conveyance of the BLP Units, the Operating Company assigns, transfers, contributes, grants, bargains, conveys, sets over and delivers the BLP Units to TLP;
in each case, its successors and its assigns, for its and their own use forever, the entire right, title, interest, responsibilities, coverages and liabilities of the party conveying the Units described in this Section 1.6 . Each party conveying Units pursuant to this Section 1.6 , other than with respect to the distribution of BLP Units by TGPM to the Operating Company, makes such contribution as a capital contribution to the capital of the party receiving such Units, and the party receiving such Units hereby accepts such contribution as a contribution to its capital.
Section 1.7 Merger of ND Land Holdings LLC . Immediately after giving effect to the conveyance described in Section 1.5(a) , TGPM and TGPGM will cause ND Land Holdings LLC ( ND Land ) to be merged with and into TGPGM, with TGPGM surviving the merger (the ND Land Merger ).
Section 1.8 Merger of BakkenLink Pipeline LLC . Immediately after giving effect to the conveyance described in Section 1.6(c) , TLP and THPPC will cause BakkenLink Pipeline LLC to be merged with and into THPPC, with THPPC surviving the merger (the BLP Merger ).
Section 1.9 Actions and Deliveries on the Effective Date . The Parties acknowledge that the following actions and deliveries have occurred, or will occur concurrently with the execution of this Agreement:
(a) receipt by the Parties of all permits, consents, approvals, authorizations, orders, registrations, filings or qualifications of or with any court, governmental agency or body having jurisdiction over the Parties required in connection with the execution, delivery and performance of the Transaction Documents;
(b) the parties listed on Schedule B that are identified as Assignor on such schedule shall have assigned to the parties identified as Assignee on such schedule those contracts listed opposite their name on Schedule B , and in order to give effect to such assignments, each Assignor and Assignee shall have entered into an assignment and assumption agreement or such other form mutually agreeable to such parties;
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(c) the execution and delivery by the respective parties thereto of the following documents:
(i) the Bills of Sale, in a form mutually agreeable to the Parties, pursuant to which the applicable Andeavor Parties and the Partnership assign and convey the Assets;
(ii) a merger agreement between ND Land and TGPGM, in a form mutually agreeable to the Parties;
(iii) a merger agreement between BakkenLink Pipeline LLC and THPPC, in a form mutually agreeable to the Parties;
(iv) the following commercial contracts:
(1) Master Terminalling Services Agreement by and between the parties identified as Customers on Schedule I thereto and the parties identified as Providers on Schedule I thereto and related service orders thereto;
(2) Master Unloading and Storage Agreement between WRCL and WRP, and the related service orders thereto;
(3) Asphalt Terminalling, Transportation and Storage Services Agreement between Asphalt Terminals LLC and WRCL, and the related service orders thereto;
(4) Transportation Services Agreement (LAR Interconnecting Pipelines) between TRMC and TSPC, and the related services order thereto;
(5) Construction Service Agreement (Los Angeles Refinery Interconnecting Pipelines) between TRMC and TSPC;
(v) the Real Property Conveyance Documents set forth on Schedule A ;
(vi) Second Amended and Restated Secondment and Logistics Services Agreement among certain of the Andeavor Parties and certain of the Logistics Parties and an applicable service order to that agreement, both in forms mutually agreeable to the Parties;
(vii) Second Amended and Restated Schedules to the Omnibus Agreement among Andeavor, TRMC, Tesoro Companies, Inc., Tesoro Alaska Company LLC, the General Partner and the Partnership, in a form mutually agreeable to the Parties;
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(viii) Third Amended and Restated Limited Liability Company Agreement of the General Partner among the General Partner, WRS, TRMC and Tesoro Alaska Company LLC;
(ix) a ten-year promissory note, in a form mutually agreeable to the Parties, by Andeavor in favor of WRS to evidence the funds loaned by the WRS to Andeavor pursuant to Section 1.1(d) ;
(x) a debt guarantee, in a form mutually agreeable to the Parties;
(xi) New York Stock Exchange Supplemental Listing Application executed by the Partnership for the listing of the Common Units and for filing with the New York Stock Exchange;
(xii) Letter from the Partnership to American Stock Transfer, the transfer agent for the Common Units, regarding the issuance of the Common Units evidencing the Equity Consideration; and
(xiii) all other documents and instruments necessary or appropriate to convey the Assets to the Operating Company;
(d) the Partnership has received an affidavit, duly executed and acknowledged by WRS dated as of the Effective Date, in accordance with Treasury Regulation § 1.1445-2(b)(2) and Section 1446(f) of the Code, certifying that WRS is not a foreign person for such purposes; and
(e) the Conflicts Committee of the General Partner has received a fairness opinion from Robert W. Baird & Co., Incorporated, the financial advisor to the Conflicts Committee.
ARTICLE II
REPRESENTATIONS
Section 2.1 Representations of the Andeavor Parties . The Andeavor Parties hereby represent and warrant to the Partnership and the Operating Company as follows:
(a) The Assets are each in good working condition, suitable for the purposes for which they are being used in accordance with accepted industry standards and all applicable laws and regulations.
(b) WRS has title to each of the Assets and the Real Property Interests, free and clear of all liens and encumbrances of any kind or nature, other than the Permitted Liens. WRS has title to each of the Assets and the Real Property Interests, subject to the Permitted Liens, that is sufficient to operate each such Asset in accordance with its intended and historical use, subject to all recorded matters and all physical conditions in existence, and, with respect to those portions of the TRMC Real Property underlying the Group E Assets, TRMC has sufficient title to grant valid leasehold or license rights in such real property to the Operating Company pursuant to the lease or license agreements in Schedule A .
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(c) To the knowledge of WRS after reasonable investigation, there are no terms in any agreements included in the Assets or the Contracts that would materially impair the rights granted to the Logistics Parties pursuant to the transactions contemplated by this Agreement.
(d) WRS has title to the TGPM Units free and clear of all liens and encumbrances of any kind or nature, other than the Permitted Liens. TGPM is a limited liability company duly organized, validly existing and in good standing under the laws of Delaware, with full limited liability company power and authority to conduct its business as it is now being conducted, to own or use the properties and assets that it purports to own or use, and to perform all of its obligations under each of its contracts. TGPM is duly qualified to do business as a foreign limited liability company and is in good standing under the laws of each state or other jurisdiction in which either the ownership or use of the properties owned by it, or the nature of the activities conducted by it, requires such qualification. The limited liability company interests of TGPM that are issued and outstanding and held by WRS as of the date of this Agreement constitute all of the TGPM Units, and other than the TGPM Units, there are no outstanding equity securities or other securities of TGPM. There are no contracts relating to the issuance, sale or transfer of any equity securities or other securities of TGPM.
(e) TGPM has title to the BLP Units free and clear of all liens and encumbrances of any kind or nature, other than the Permitted Liens. BakkenLink Pipeline LLC is a limited liability company duly organized, validly existing and in good standing under the laws of Delaware, with full limited liability company power and authority to conduct its business as it is now being conducted, to own or use the properties and assets that it purports to own or use, and to perform all of its obligations under each of its contracts. BakkenLink Pipeline LLC is duly qualified to do business as a foreign limited liability company and is in good standing under the laws of the each state or other jurisdiction in which either the ownership or use of the properties owned by it, or the nature of the activities conducted by it, requires such qualification. The limited liability company interests of BakkenLink Pipeline LLC that are issued and outstanding and held by TGPM as of the date of this Agreement constitute all of the BLP Units, and other than the BLP Units, there are no outstanding equity securities or other securities of BakkenLink Pipeline LLC. There are no contracts relating to the issuance, sale or transfer of any equity securities or other securities of BakkenLink Pipeline LLC.
(f) TGPM has title to all of the limited liability company interests of ND Land (the ND Land Units ), free and clear of all liens and encumbrances of any kind or nature, other than the Permitted Liens. ND Land is a limited liability company duly organized, validly existing and in good standing under the laws of Delaware, with full limited liability company power and authority to conduct its business as it is now being conducted, to own or use the properties and assets that it purports to own or use, and to perform all of its obligations under each of its contracts. ND Land is duly qualified to do business as a foreign limited liability company and is in good standing under the laws of each state or other jurisdiction in which either the ownership or use of the properties owned by it, or the nature of the activities conducted by it, requires such qualification. The limited liability company interests of ND Land that are issued and outstanding and held by TGPM as of the date of this Agreement constitute all of the ND Land Units, and other than the ND Land Units, there are no outstanding equity securities or other securities of ND Land. There are no contracts relating to the issuance, sale or transfer of any equity securities or other securities of ND Land.
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(g) WRS has title to the WRCG Units and the WRDBS Units free and clear of all liens and encumbrances of any kind or nature, other than the Permitted Liens. Each of Western Refining Conan Gathering, LLC and Western Refining Delaware Basin Storage, LLC is a limited liability company duly organized, validly existing and in good standing under the laws of Delaware, with full limited liability company power and authority to conduct its business as it is now being conducted, to own or use the properties and assets that it purports to own or use, and to perform all of its obligations under each of its contracts. Each of Western Refining Conan Gathering, LLC and Western Refining Delaware Basin Storage, LLC is duly qualified to do business as a foreign limited liability company and in good standing under the laws of the State of each state or other jurisdiction in which either the ownership or use of the properties owned by it, or the nature of the activities conducted by it, requires such qualification. The limited liability company interests of Western Refining Conan Gathering, LLC that are issued and outstanding and held by WRS as of the date of this Agreement constitute all of the WRCG Units, and other than the WRCG Units, there are no outstanding equity securities or other securities of Western Refining Conan Gathering, LLC. There are no contracts relating to the issuance, sale or transfer of any equity securities or other securities of Western Refining Conan Gathering, LLC. The limited liability company interests of Western Refining Delaware Basin Storage, LLC that are issued and outstanding and held by WRS as of the date of this Agreement constitute all of the WRDBS Units, and other than the WRDBS Units, there are no outstanding equity securities or other securities of Western Refining Delaware Basin Storage, LLC. There are no contracts relating to the issuance, sale or transfer of any equity securities or other securities of Western Refining Delaware Basin Storage, LLC.
(h) WRS has title to the Andeavor Rio Units free and clear of all liens and encumbrances of any kind or nature, other than the Permitted Liens. Andeavor Rio is a limited liability company duly organized, validly existing and in good standing under the laws of Delaware, with full limited liability company power and authority to conduct its business as it is now being conducted, to own or use the properties and assets that it purports to own or use, and to perform all of its obligations under each of its contracts. Andeavor Rio is duly qualified to do business as a foreign limited liability company and is in good standing under the laws of each state or other jurisdiction in which either the ownership or use of the properties owned by it, or the nature of the activities conducted by it, requires such qualification. TLP is, as of the Effective Date, the record and beneficial owner and holder of the Andeavor Rio Units. There are no contracts relating to the issuance, sale or transfer of any equity securities or other securities of Andeavor Rio.
(i) WRS has title to the Andeavor CD Units free and clear of all liens and encumbrances of any kind or nature, other than the Permitted Liens. Andeavor CD is a limited liability company duly organized, validly existing and in good standing under the laws of Delaware, with full limited liability company power and authority to conduct its business as it is now being conducted, to own or use the properties and assets that it purports to own or use, and to perform all of its obligations under each of its contracts. Andeavor CD is duly qualified to do business as a foreign limited liability company and in good standing under the laws of the State of each state or other jurisdiction in which either the ownership or use of the properties owned by it, or the nature of the activities conducted by it, requires such qualification. The limited liability company interests of Andeavor CD that are issued and outstanding and held by WRS as of the date of this Agreement constitute all of the Andeavor CD Units, and other than the Andeavor CD Units,
there are no outstanding equity securities or other securities of Andeavor CD. There are no contracts relating to the issuance, sale or transfer of any equity securities or other securities of Andeavor CD.
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(j) WRS has title to the MPL Units free and clear of all liens and encumbrances of any kind or nature, other than the Permitted Liens. Andeavor MPL Holdings LLC is a limited liability company duly organized, validly existing and in good standing under the laws of Delaware, with full limited liability company power and authority to conduct its business as it is now being conducted, to own or use the properties and assets that it purports to own or use, and to perform all of its obligations under each of its contracts. Andeavor MPL Holdings LLC is duly qualified to do business as a foreign limited liability company and in good standing under the laws of the State of each state or other jurisdiction in which either the ownership or use of the properties owned by it, or the nature of the activities conducted by it, requires such qualification. The limited liability company interests of Andeavor MPL Holdings LLC that are issued and outstanding and held by WRS as of the date of this Agreement constitute all of the MPL Units, and other than the MPL Units, there are no outstanding equity securities or other securities of Andeavor MPL Holdings LLC. There are no contracts relating to the issuance, sale or transfer of any equity securities or other securities of Andeavor MPL Holdings LLC.
(k) WRS has title to the ATL Units free and clear of all liens and encumbrances of any kind or nature, other than the Permitted Liens. Asphalt Terminals LLC is a limited liability company duly organized, validly existing and in good standing under the laws of Delaware, with full limited liability company power and authority to conduct its business as it is now being conducted, to own or use the properties and assets that it purports to own or use, and to perform all of its obligations under each of its contracts. Asphalt Terminals LLC is duly qualified to do business as a foreign limited liability company and in good standing under the laws of the States of each state or other jurisdiction in which either the ownership or use of the properties owned by it, or the nature of the activities conducted by it, requires such qualification. The limited liability company interests of Asphalt Terminals LLC that are issued and outstanding and held by WRS as of the date of this Agreement constitute all of the ATL Units, and other than the ATL Units, there are no outstanding equity securities or other securities of Asphalt Terminals LLC. There are no contracts relating to the issuance, sale or transfer of any equity securities or other securities of Asphalt Terminals LLC.
(l) Each of TGPM, Andeavor MPL Holdings LLC, Andeavor CD, Western Refining Conan Gathering, LLC, Asphalt Terminals LLC and Andeavor Rio is properly classified as an entity disregarded as separate from its owner or as a partnership for U.S. federal income tax purposes.
Section 2.2 Representation of the Partnership . The Partnership hereby represents and warrants to the Andeavor Parties that the Common Units of the Partnership issued to WRS pursuant to Section 1.1(b)(ii) have been duly authorized for issuance and sale to WRS and, when issued and delivered by the Partnership to WRS pursuant to this Agreement against payment of the consideration set forth herein, will be validly issued and fully paid (to the extent required under the Partnership Agreement) and nonassessable (except as such nonassessability may be affected by matters described in Sections 17-607 and 17-804 of the Delaware Limited Partnership Act).
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Section 2.3 Representations of the Parties . Each Party represents and warrants, severally as to only itself and not jointly, to the other Parties as follows:
(a) The applicable Party has been duly formed or incorporated and is validly existing as a limited partnership, limited liability company or corporation, as applicable, in good standing under the laws of its jurisdiction of organization with full power and authority to enter into and perform its obligations under this Agreement and the other documents contemplated herein (the Transaction Documents ) to which it is a party, to own or lease and to operate its properties currently owned or leased or to be owned or leased and to conduct its business. The applicable Party is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as applicable, and is in good standing under the laws of each jurisdiction which requires such qualification, except where the failure to be so qualified or registered would not have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties, taken as a whole, whether or not arising from transactions in the ordinary course of business, of such Party (a Material Adverse Effect ).
(b) The applicable Party has all requisite power and authority to execute and deliver the Transaction Documents to which it is a party and perform its respective obligations thereunder. All corporate, partnership and limited liability company action, as the case may be, required to be taken by the applicable Party or any of its stockholders, members or partners for the execution and delivery by the applicable Party of the Transaction Documents to which it is a party and the consummation of the transactions contemplated thereby has been validly taken.
(c) For the applicable Party, each of the Transaction Documents to which it is a party is a valid and legally binding agreement of such Party, enforceable against such Party in accordance with its terms, except (i) as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors rights generally and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and (ii) that the indemnity, contribution and exoneration provisions contained in any of the Transaction Documents may be limited by applicable laws and public policy.
(d) Neither the execution, delivery and performance of the Transaction Documents by the applicable Party that is a party thereto nor the consummation of the transactions contemplated by the Transaction Documents conflict or will conflict with, or result or will result in, a breach or violation of or a default under (or an event that, with notice or lapse of time or both would constitute such an event), or imposition of any lien, charge or encumbrance upon any property or assets of the applicable Party pursuant to (i) the partnership agreement, limited liability company agreement, certificate of limited partnership, certificate of formation or conversion, certificate or articles of incorporation, bylaws or other constituent document of the applicable Party, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the applicable Party is a party or bound or to which its property is subject or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the applicable Party of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over such Party or any of its properties in a proceeding to which it or its property is a party, except in the case of clause (ii) , liens, charges or encumbrances arising under security documents for the
collateral pledged under such Partys applicable credit agreements, and except in the case of clause (iii) , where such breach or violation would not reasonably be expected to have a Material Adverse Effect.
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(e) No permit, consent, approval, authorization, order, registration, filing or qualification of or with any court, governmental agency or body having jurisdiction over the applicable Party or any of its properties or assets is required in connection with the execution, delivery and performance of the Transaction Documents by the applicable Party, the execution, delivery and performance by the applicable Party that is a party thereto of its respective obligations under the Transaction Documents or the consummation of the transactions contemplated by the Transaction Documents other than (i) any filing related to the sale of the Common Units under this Agreement with federal or state securities laws authorities, (ii) consents that have been obtained and (iii) consents where the failure to obtain such consent would not reasonably be expected to have a Material Adverse Effect.
(f) No action, suit, proceeding, inquiry or investigation by or before any court or governmental or other regulatory or administrative agency, authority or body or any arbitrator involving the applicable Party or its property is pending or, to the knowledge of the applicable Party, threatened or contemplated that (i) would individually or in the aggregate reasonably be expected to have a material adverse effect on the performance of the Transaction Documents or the consummation of any of the transactions contemplated therein, or (ii) would individually or in the aggregate reasonably be expected to have a Material Adverse Effect.
ARTICLE III
COVENANTS
Section 3.1 Further Assurances .
(a) From time to time after the Effective Time, and without any further consideration, the Parties agree to execute, acknowledge and deliver all such additional deeds, assignments, bills of sale, conveyances, instruments, notices, releases, acquittances and other documents, and to do all such other acts and things, all in accordance with applicable law, as may be necessary or appropriate (i) more fully to assure that the applicable Parties own all of the properties, rights, titles, interests, estates, remedies, powers and privileges granted by this Agreement, or which are intended to be so granted, (ii) more fully and effectively to vest in the applicable Parties and their respective successors and assigns beneficial and record title to the interests contributed and assigned by this Agreement or intended to be so contributed and assigned (including any actions required to effect the assignment and conveyance of the Assets, Real Property Interests and the Contracts as contemplated herein), and (iii) more fully and effectively to carry out the purposes and intent of this Agreement.
(b) To the extent any permits related to the Assets, Real Property Interests or the Contracts may not be assigned or transferred without the consent of a third party that has not been obtained at the Effective Time despite the exercise by the Andeavor Parties of their reasonable best efforts, this Agreement shall not constitute an agreement to assign or transfer such permit if an attempted assignment or transfer would constitute a breach thereof or be unlawful. In that case, the applicable Andeavor Party, to the maximum extent permitted by law, (a) shall act
16
after the Effective Time as the agent of the applicable Logistics Party to obtain for such Parties the benefits thereunder, and (b) shall cooperate, to the maximum extent permitted by applicable law, with the applicable Logistics Party in any other reasonable arrangement designed to provide those benefits to such Parties, including by agreeing to remain liable under any applicable permit. Nothing contained in this Section 3.1(b) shall relieve the Andeavor Parties of their obligations under any other provisions of this Agreement.
(c) The Controller of Andeavor shall, in good faith, allocate among the Andeavor Parties and the Logistics Parties any amounts that relate to a period beginning prior to the Effective Date and ending after the Effective Date in accordance with the terms hereof.
Section 3.2 Debt Financed Distribution . For a period of four years following the Effective Date, WRS and the Partnership shall ensure (and shall cause their respective Affiliates to ensure) (i) that the Partnership Debt will not be less than the entire outstanding principal balance of the Partnership Debt outstanding immediately after the Effective Date, (ii) that there is no modification of the Partnership Debt so as to eliminate or limit the ultimate recourse liability of WRS with respect thereto, and (iii) that no corporation, partnership, person or entity, other than WRS or a Logistics Party, assumes, guarantees, indemnifies against or otherwise incurs any liability with respect to the Partnership Debt.
Section 3.3 Tax Covenants .
(a) The Parties intend that for U.S. federal income tax purposes (the Intended Tax Treatment ), (i) the WRS Asset Contribution and the WRS Unit Contribution shall be treated as a contribution by WRS to the Partnership assets in exchange for the Equity Consideration in a transaction consistent with the requirements of Section 721(a) of the Code; (ii) the distribution of the Cash Consideration shall be treated as a distribution to WRS by Partnership under Section 731 of the Code; (iii) the distribution of the Cash Consideration to WRS shall be made out of proceeds of the Partnership Debt and that such distribution shall qualify as a debt-financed transfer under Treasury Regulations § 1.707-5(b); and (iv) WRSs share of the Partnership Debt under Treasury Regulations § 1.752-2 and Proposed Treasury Regulations § 1.707-5(a)(2)(i) shall be the entire amount of the Partnership Debt.
(b) Except as otherwise required by applicable law following a final determination by the U.S. Internal Revenue Service or a governmental authority with competent jurisdiction, the Parties agree to file all tax returns and otherwise act at all times in a manner consistent with the Intended Tax Treatment.
ARTICLE IV
MISCELLANEOUS
Section 4.1 Costs . Each Party shall pay its own costs and expenses with respect to the transactions contemplated by this Agreement; except as follows:
(a) the Partnership and Andeavor shall each pay, on behalf of the Logistics Parties and the Andeavor Parties, respectively, (i) one-half of the sales, use and similar transfer taxes arising out of the contributions, conveyances and deliveries to be made under ARTICLE I , (ii) one-half of the documentary, filing, recording, transfer, deed and conveyance taxes and fees required in connection therewith, (iii) one half of any other customary closing costs associated with the contributions of the Assets; and (iv) legal fees and costs of Vinson & Elkins LLP and McGuireWoods LLP, in the case of clause (iv), to the extent incurred by any Logistics Parties and Andeavor Parties, respectively; and
17
(b) the Partnership shall pay all of the costs and expenses of the Conflicts Committee of the board of directors of the General Partner, including, but not limited to, the advisory and legal fees and costs of Sidley Austin LLP and Robert W. Baird & Co., Incorporated.
Section 4.2 Headings; References; Interpretation . All Article and Section headings in this Agreement are for convenience only and shall not be deemed to control or affect the meaning or construction of any of the provisions hereof. The words hereof, herein and hereunder and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole, including, without limitation, all Schedules and Exhibits attached hereto, and not to any particular provision of this Agreement. All references herein to Articles, Sections, Schedules and Exhibits shall, unless the context requires a different construction, be deemed to be references to the Articles and Sections of this Agreement and the Schedules and Exhibits attached hereto, and all such Schedules and Exhibits attached hereto are hereby incorporated herein and made a part hereof for all purposes. All personal pronouns used in this Agreement, whether used in the masculine, feminine or neuter gender, shall include all other genders, and the singular shall include the plural and vice versa. The use herein of the word including following any general statement, term or matter shall not be construed to limit such statement, term or matter to the specific items or matters set forth immediately following such word or to similar items or matters, whether or not non-limiting language (such as without limitation, but not limited to or words of similar import) is used with reference thereto, but rather shall be deemed to refer to all other items or matters that could reasonably fall within the broadest possible scope of such general statement, term or matter.
Section 4.3 Successors and Assigns . This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns.
Section 4.4 No Third Party Rights . The provisions of this Agreement are intended to bind the Parties as to each other and are not intended to and do not create rights in any other person or confer upon any other person any benefits, rights or remedies, and no person is or is intended to be a third party beneficiary of any of the provisions of this Agreement.
Section 4.5 Counterparts . This Agreement may be executed in any number of counterparts (including facsimile or .pdf copies) with the same effect as if all Parties had signed the same document. All counterparts shall be construed together and shall constitute one and the same instrument.
Section 4.6 Applicable Law; Forum, Venue and Jurisdiction . This Agreement shall be construed in accordance with and governed by the laws of the State of Texas, without regard to the principles of conflicts of law. Each of the Parties (a) irrevocably agrees that any claims, suits, actions or proceedings arising out of or relating in any way to this Agreement shall be exclusively brought in any federal court of competent jurisdiction situated in the United States District Court for the Western District of Texas, San Antonio Division, or if such federal court declines to
18
exercise or does not have jurisdiction, in the district court of Bexar County, Texas, in each case regardless of whether such claims, suits, actions or proceedings sound in contract, tort, fraud or otherwise, are based on common law, statutory, equitable, legal or other grounds, or are derivative or direct claims, (b) irrevocably submits to the exclusive jurisdiction of the United States District Court for the Western District of Texas, San Antonio Division, or if such federal court declines to exercise or does not have jurisdiction, of the district court of Bexar County, Texas in connection with any such claim, suit, action or proceeding, (c) agrees not to, and waives any right to, assert in any such claim, suit, action or proceeding that (i) it is not personally subject to the jurisdiction of the United States District Court for the Western District of Texas, San Antonio Division, or the district court of Bexar County, Texas, or of any other court to which proceedings in such courts may be appealed, (ii) such claim, suit, action or proceeding is brought in an inconvenient forum, or (iii) the venue of such claim, suit, action or proceeding is improper, (d) expressly waives any requirement for the posting of a bond by a party bringing such claim, suit, action or proceeding and (e) consents to process being served in any such claim, suit, action or proceeding by mailing, certified mail, return receipt requested, a copy thereof to such party at the address in effect for notices hereunder or by personal service within or without the State of Texas, and agrees that service in such forms shall constitute good and sufficient service of process and notice thereof; provided, however, that nothing in clause (e) hereof shall affect or limit any right to serve process in any other manner permitted by law.
Section 4.7 Severability . If any of the provisions of this Agreement are held by any court of competent jurisdiction to contravene, or to be invalid under, the laws of any political body having jurisdiction over the subject matter hereof, such contravention or invalidity shall not invalidate the entire Agreement. Instead, this Agreement shall be construed as if it did not contain the particular provision or provisions held to be invalid and an equitable adjustment shall be made and necessary provision added so as to give effect to the intention of the Parties as expressed in this Agreement at the time of execution of this Agreement.
Section 4.8 Amendment or Modification . This Agreement may be amended or modified from time to time only by the written agreement of all the Parties. Each such instrument shall be reduced to writing and shall be designated on its face as an amendment to this Agreement. Notwithstanding anything in the foregoing to the contrary, any amendment executed by the Partnership or any of its subsidiaries shall not be effective unless and until the execution of such amendment has been approved by the Conflicts Committee.
Section 4.9 Integration . This Agreement, together with the Schedules and Exhibits referenced herein, constitutes the entire agreement among the Parties pertaining to the subject matter hereof and supersedes all prior agreements and understandings of the Parties in connection therewith.
Section 4.10 Specific Performance . The Parties agree that money damages may not be a sufficient remedy for any breach of this Agreement and that in addition to any other remedy available at law or equity, the Parties shall be entitled to seek specific performance and injunctive or other equitable relief as a remedy for any Partys breach of this Agreement. The Parties agree that no bond shall be required for any injunctive relief in connection with a breach of this Agreement.
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Section 4.11 Deed; Bill of Sale ; Assignment . To the extent required and permitted by applicable law, this Agreement shall also constitute a deed, bill of sale or assignment of the Assets and interests referenced herein. Additionally, in lieu of one or more deeds, recordings, bills of sale, or other conveyance documents (including, without limitation, Real Property Conveyance Documents) regarding the Assets and for administrative convenience only (and without limiting any of the representations, warranties, covenants or other provisions of this Agreement), WRS directs the owners of such Assets prior to the transactions described in this Agreement to directly convey, on WRS behalf, each such Asset to its respective final owner following the transactions described in this Agreement, via the appropriate deeds, recordings, bills of sale, and other conveyance documents (including, without limitation, Real Property Conveyance Documents). For the avoidance of doubt, neither (a) the conveyance of the Assets as described in Sections 1.1 , 1.2 or 1.3 , or (b) the execution, delivery and performance of the Contracts, is intended to be treated as a sale for tax or any other purposes.
Section 4.12 Notice . All notices or requests or consents provided for by, or permitted to be given pursuant to, this Agreement must be in writing and must be given by depositing same in the United States mail, addressed to the person to be notified, postpaid, and registered or certified with return receipt requested or by delivering such notice in person or by facsimile to such Party. Notice given by personal delivery or mail shall be effective upon actual receipt. Notice given by facsimile shall be effective upon actual receipt, with confirmation, if received during the recipients normal business hours or at the beginning of the recipients next business day after receipt if not received during the recipients normal business hours. All notices to be sent to a Party pursuant to this Agreement shall be sent to or made at the address set forth below or at such other address as such Party may stipulate to the other Parties in the manner provided in this Section 4.12 .
If to Andeavor or WRS:
Andeavor
19100 Ridgewood Parkway
San Antonio, Texas 78259-1828
Attn: General Counsel
Facsimile: (210) 745-4494
If to the Partnership or the Operating Company:
Andeavor Logistics LP
c/o Tesoro Logistics GP, LLC, its General Partner
19100 Ridgewood Parkway
San Antonio, Texas 78259-1828
Attn: General Counsel
Facsimile: (210) 745-4494
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ARTICLE V
DEFINITIONS
Section 5.1 Capitalized terms used herein have the respective meanings ascribed to such terms below:
Agreement has the meaning set forth in the introduction to this Agreement.
Andeavor has the meaning set forth in the introduction to this Agreement.
Andeavor CD means Andeavor Logistics CD LLC.
Andeavor CD Units has the meaning set forth in the Recitals.
Andeavor Parties has the meaning set forth in the introduction to this Agreement.
Andeavor Rio means Andeavor Logistics Rio Pipeline LLC.
Andeavor Rio Units has the meaning set forth in the Recitals.
Aranco Pipeline has the meaning set forth in the Recitals.
Assets means (i) the Mandan Tankage, (ii) the Salt Lake Tankage, (iii) the LARW Tankage, (iv) the LARC Tankage, (v) the Mandan Rail Rack and Trackage, (vi) Salt Lake Rail Rack and Trackage, (vii) the LARW Rail Rack and Trackage, (viii) the LARC Rail Rack and Trackage, (ix) the Mandan LPG Truck Rack, (x) the Salt Lake Refinery Truck Racks, (xi) the LARW LPG Truck Rack, (xii) the LARC LPG Truck Rack, (xiii) the LA Refinery Interconnecting Pipeline, (xiv) the Mesquite Truck Station, (xv) the Yucca Truck Station, (xvi) the Mason East Station, (xvii) the Wink Station, (xviii) the Jal NGL Storage Facility, (xix) the Wingate Terminal, (xx) the Clearbrook Tankage, (xxi) the Aranco Pipeline, (xxii) the Bobcat Pipeline, and (xxiii) the Benny Pipeline.
ATL Units has the meaning set forth in the Recitals.
Benny Pipeline has the meaning set forth in the Recitals.
Bills of Sale means the instruments to be effective as of the Effective Time for the sale, assignment, transfer, contribution, grant, bargain conveyance and delivery of the entire right, title, interest, responsibilities, coverages and liabilities in and to those certain improvements and tangible personal property related to the following Real Property Interests and TRMC Real Property, including any responsibilities, coverages and liabilities from and after the Effective Time under any permit or license included in such improvements and tangible personal property, free and clear of all liens and encumbrances of any kind or nature other than Permitted Liens and not including the Excluded Assets and Liabilities: (i) Mandan Refinery; (ii) Salt Lake Refinery; (iii) a combined Bill of Sale for LARC Refinery Unit and LARW Refinery Unit; (iv) LA Refinery Interconnecting Pipeline; (v) Wink Station; (vi) Mesquite Truck Station; (vii) Wingate Terminal; and (viii) Yucca Truck Station.
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BLP Merger has the meaning set forth in Section 1.8 .
BLP Units has the meaning set forth in Section 1.6 .
Bobcat Pipeline has the meaning set forth in the Recitals.
Cash Consideration has the meaning set forth in Section 1.1(b) .
Clearbrook Tankage has the meaning set forth in the Recitals.
Code means the Internal Revenue Code of 1986, as amended.
Common Unit means a common unit representing a limited partner interest in the Partnership having the rights set forth in the Partnership Agreement.
Conflicts Committee has the meaning set forth in the Partnership Agreement.
Contracts means the commercial agreements to be entered into effective as of the Effective Date set forth in Section 1.9(c)(iv) .
Effective Date has the meaning set forth in the introduction to this Agreement.
Effective Time means 12:02 a.m. Eastern Time on the Effective Date.
Equity Consideration has the meaning set forth in Section 1.1(b) .
Excluded Assets and Liabilities means those certain assets and properties (including any and all petroleum and hydrocarbon inventory) and certain responsibilities, coverages and liabilities that might otherwise be considered as part of the Assets or the Contracts but are being retained by WRS and are not being contributed, transferred or assumed to or by the General Partner, the Partnership or the Operating Company as part of the transactions contemplated by this Agreement, as set forth on Exhibit P to this Agreement.
General Partner means Tesoro Logistics GP, LLC, the general partner of the Partnership.
Group A Assets has the meaning set forth in Section 1.2 .
Group B Assets has the meaning set forth in Section 1.2 .
Group C Assets has the meaning set forth in Section 1.2 .
Group D Assets has the meaning set forth in Section 1.2 .
Group E Assets has the meaning set forth in Section 1.2 .
Group F Assets has the meaning set forth in Section 1.2 .
Group G Assets has the meaning set forth in Section 1.2 .
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Intended Tax Treatment has the meaning set forth in Section 3.3(a) .
Jal NGL Storage Facility has the meaning set forth in the Recitals.
LARC LPG Truck Rack has the meaning set forth in the Recitals.
LARC Rail Rack and Trackage has the meaning set forth in the Recitals.
LARC Refinery Unit has the meaning set forth in the Recitals.
LARC Tankage has the meaning set forth in the Recitals.
LA Refinery Interconnecting Pipeline has the meaning set forth in the Recitals.
LARW LPG Truck Rack has the meaning set forth in the Recitals.
LARW Rail Rack and Trackage has the meaning set forth in the Recitals.
LARW Refinery Unit has the meaning set forth in the Recitals.
LARW Tankage has the meaning set forth in the Recitals.
Logistics Parties has the meaning set forth in the introduction to this Agreement.
Mandan LPG Truck Rack has the meaning set forth in the Recitals.
Mandan Rail Rack and Trackage has the meaning set forth in the Recitals.
Mandan Refinery has the meaning set forth in the Recitals.
Mandan Tankage has the meaning set forth in the Recitals.
Mason East Station has the meaning set forth in the Recitals.
Material Adverse Effect has the meaning set forth in Section 2.3(a) .
Mesquite Truck Station has the meaning set forth in the Recitals.
MPL Units has the meaning set forth in the Recitals.
ND Land has the meaning set forth in Section 1.7 .
ND Land Merger has the meaning set forth in Section 1.7 .
ND Land Units has the meaning set forth in Section 2.1(f) .
Omnibus Agreement means that certain Fourth Amended and Restated Omnibus Agreement dated as of October 30, 2017, among Andeavor, TRMC, Tesoro Companies, Inc.,
Tesoro Alaska Company LLC, the General Partner and the Partnership, as such agreement (and the Schedules thereto) may be amended, supplemented or restated from time to time.
23
Operating Company has the meaning set forth in the introduction to this Agreement.
Partnership has the meaning set forth in the introduction to this Agreement.
Partnership Agreement means the Second Amended and Restated Agreement of Limited Partnership of the Partnership, dated as of October 30, 2017, as such agreement may be amended, supplemented or restated from time to time.
Partnership Contribution has the meaning set forth in Section 1.2 .
Partnership Debt has the meaning set forth in Section 1.1(c) .
Partnership Unit Contribution has the meaning set forth in Section 1.5.
Party or Parties have the meanings given to those terms in the introduction to this Agreement.
Permitted Liens has the meaning set forth in Section 1.1(a) .
Real Property Interests has the meaning set forth in the Recitals.
Real Property Conveyance Documents has the meaning set forth in Schedule A.
Salt Lake Rail Rack and Trackage has the meaning set forth in the Recitals.
Salt Lake Refinery has the meaning set forth in the Recitals.
Salt Lake Refinery Truck Racks has the meaning set forth in the Recitals.
Salt Lake Tankage has the meaning set forth in the Recitals.
Secondment and Logistics Services Agreement means that certain Amended and Restated Secondment and Logistics Services Agreement dated as of October 30, 2017, as may be amended, modified or supplemented from time to time, among certain of the Andeavor Parties and certain of the Logistics Parties.
St. Paul Refining means St. Paul Park Refining Co., LLC.
TGPGM has the meaning set forth in the introduction to this Agreement.
TGPM has the meaning set forth in the introduction to this Agreement.
TGPM Units has the meaning set forth in the Recitals.
THPPC has the meaning set forth in the introduction to this Agreement.
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TLP has the meaning set forth in the introduction to this Agreement.
Transaction Documents has the meaning set forth in Section 2.3(a) .
Treasury Regulations means the regulations (including temporary regulations) promulgated by the United States Department of the Treasury pursuant to and in respect of provisions of the Code. All references herein to sections of the Treasury Regulations shall include any corresponding provision or provisions of succeeding, similar or substitute, temporary or final Treasury Regulations.
TRMC has the meaning set forth in the introduction to this Agreement.
TRMC Real Property has the meaning set forth in the Recitals.
TSPC has the meaning set forth in the introduction to this Agreement.
Units means the TGPM Units, the MPL Units, the Andeavor CD Units, the Andeavor Rio Units, the WRCG Units, the WRDBS Units, and the ATL Units.
Wingate Terminal has the meaning set forth in the Recitals.
Wink Station has the meaning set forth in the Recitals.
WNRL has the meaning set forth in the introduction to this Agreement.
WRCG Units has the meaning set forth in the Recitals.
WRCL means Western Refining Company, L.P.
WRDBS Units has the meaning set forth in the Recitals.
WRLP has the meaning set forth in the introduction to this Agreement.
WRP has the meaning set forth in the introduction to this Agreement.
WRS has the meaning set forth in the introduction to this Agreement.
WRS Asset Contribution has the meaning set forth in Section 1.1(a) .
WRS Unit Contribution has the meaning set forth in Section 1.4 .
WRT has the meaning set forth in the introduction to this Agreement.
Yucca Truck Station has the meaning set forth in the Recitals.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Parties to this Agreement have caused it to be duly executed effective as of the Effective Time.
ANDEAVOR PARTIES: | ||
ANDEAVOR | ||
By: |
/s/ Gregory J. Goff Gregory J. Goff President and Chief Executive Officer |
|
WESTERN REFINING SOUTHWEST, INC. | ||
By: |
/s/ Gregory J. Goff Gregory J. Goff President and Chief Executive Officer |
|
TESORO REFINING & MARKETING COMPANY LLC | ||
By: |
/s/ Gregory J. Goff Gregory J. Goff President and Chief Executive Officer |
|
TESORO GREAT PLAINS MIDSTREAM LLC | ||
By: |
/s/ Gregory J. Goff Gregory J. Goff President and Chief Executive Officer |
|
TESORO GREAT PLAINS GATHERING & MARKETING LLC | ||
By: |
/s/ Gregory J. Goff Gregory J. Goff President and Chief Executive Officer |
Signature Page
Contribution, Conveyance and Assumption Agreement
LOGISTICS PARTIES: | ||
ANDEAVOR LOGISTICS LP | ||
By: |
TESORO LOGISTICS GP, LLC, its General Partner |
|
By: |
/s/ Steven M. Sterin Steven M. Sterin President and Chief Financial Officer |
|
TESORO LOGISTICS OPERATIONS LLC | ||
By: |
/s/ Steven M. Sterin Steven M. Sterin President and Chief Financial Officer |
|
TESORO LOGISTICS PIPELINES LLC | ||
By: |
/s/ Steven M. Sterin Steven M. Sterin President and Chief Financial Officer |
|
WESTERN REFINING TERMINALS, LLC | ||
By: |
/s/ Steven M. Sterin Steven M. Sterin President and Chief Financial Officer |
Signature Page
Contribution, Conveyance and Assumption Agreement
WESTERN REFINING PIPELINE, LLC | ||
By: |
/s/ Steven M. Sterin Steven M. Sterin President and Chief Financial Officer |
|
TESORO HIGH PLAINS PIPELINE COMPANY LLC | ||
By: |
/s/ Steven M. Sterin Steven M. Sterin President and Chief Financial Officer |
|
WESTERN REFINING LOGISTICS LP | ||
By: |
Western Refining Logistics GP, LLC, its general partner |
|
By: |
/s/ Steven M. Sterin Steven M. Sterin President and Chief Financial Officer |
|
WNRL ENERGY LLC | ||
By: |
/s/ Steven M. Sterin Steven M. Sterin President and Chief Financial Officer |
|
TESORO SOCAL PIPELINE COMPANY LLC | ||
By: |
/s/ Steven M. Sterin Steven M. Sterin President and Chief Financial Officer |
Signature Page
Contribution, Conveyance and Assumption Agreement
Exhibit Index
Exhibit A | Mandan Tankage | |
Mandan Rail Rack and Trackage | ||
Mandan LPG Truck Rack | ||
Exhibit B | Salt Lake Tankage | |
Salt Lake Rail Rack and Trackage | ||
Salt Lake Refinery Truck Racks | ||
Exhibit C | LARW Tankage & LARC Tankage | |
LARW Rail Rack and Trackage & LARC Rail Rack and Trackage | ||
LARW LPG Truck Rack & LARC LPG Truck Rack | ||
Exhibit D | LA Refinery Interconnecting Pipeline | |
Exhibit E | Mesquite Truck Station | |
Exhibit F | Yucca Truck Station | |
Exhibit G | Mason East Station | |
Exhibit H | Wink Station | |
Exhibit I | Jal NGL Storage Facility | |
Exhibit J | Wingate Terminal | |
Exhibit K | Clearbrook Tankage | |
Exhibit L | Bobcat Pipeline | |
Exhibit M | Benny Pipeline | |
Exhibit N | Aranco Pipeline | |
Exhibit O | Permitted Liens | |
Exhibit P | Excluded Assets and Liabilities | |
*** |
||
Schedule A | Real Property Interests | |
Schedule B | Assigned Contracts |
Exhibit List
EXHIBIT A
Mandan Tankage
Mandan Rail Rack and Trackage
Mandan LPG Truck Rack
Asset No. |
Asset Description |
|
10002782 | LEVEL & PRESSURE INDICATORS FB-766,FB-767 & FB-704 | |
10007669 | M&E- RAILTRACK SOLENOID FRZ PROTECTN | |
10007672 | M&E-ELECTR DISTR.-REF OM PRESSURIZATN LEL DETECTOR | |
10007674 | M&E-EXCHANGER- REFINING- TNKFLD WATER DR | |
10007675 | M&E-FIRE/SAFETY EQPT - REFINING TANKFIELD WALKWAYS | |
10007677 | M&E - I.S.B.L.-INSTRUMENTS-REF- LIQ LEVEL ALARM | |
10007679 | M&E - I.S.B.L. - LINES, PIPING - REF | |
10007681 | M&E- JP-8 MODIFICTNS-ABV GRADE PIPING | |
10007682 | M&E-I.S.B.L.-LINES, PIPING-REF- DECANTING TANK | |
10007683 | M&E-I.S.B.L.-LINES, PIPING-REF- TNKFLD WATER DR | |
10007685 | M&E - I.S.B.L. - LINES, PIPING - REF | |
10007686 | M&E -MACT - CONVERT TK 746 TO METHANOL SERV | |
10007688 | M&E - PIPE FROM TK730/733 | |
10007689 | M&E-I.S.B.L.-LINES, PIPING-REF- TANK HEADERS | |
10007690 | M&E - I.S.B.L. - LINES, PIPING - REF - SE 731 TK. | |
10007691 | M&E-I.S.B.L.-LINES, PIPING-REF- E TKFLD FIREWAL | |
10007692 | M&E-ISBL LINES- FIREWTR SYS WST TKFLD (PX-1697) | |
10007694 | M&E-I.S.B.L.-LINES, PIPING- TNKFLD WATER DRAW SYS | |
10007695 | ISBL LINES, PIPING - FB723 REPLACE ROOF (PX-1771) | |
10007696 | M&E-I.S.B.L.-LINES, PIPING-REF- FB RPLC ROOF | |
10007697 | M&E - I.S.B.L. - LINES, PIPING - REFINING I.S.B.L. | |
10007700 | M&E- REPL LVL ALARMS ON PROPRANE DRUMS | |
10007701 | M&E - I.S.B.L.- REF INSTR M. BUTTONS TO ACT DELUGE | |
10007705 | M&E - LINES, ELECTRICAL LINES: - | |
10007710 | M&E - LINES, ELECTRICAL LINES: - | |
10007716 | M&E - LINES, ELECTRICAL LINES: - | |
10007717 | M&E - LINES, ELECTRICAL LINES: - | |
10007719 | M&E - LINES, ELECTRICAL LINES: - | |
10007720 | M&E - LINES, ELECTRICAL LINES: - EF044 | |
10007721 | M&E - LINES, ELECTRICAL LINES: - EF044 | |
10007722 | M&E - LINES, ELECTRICAL LINES: - EF044 | |
10007723 | M&E - LINES, ELECTRICAL LINES: - | |
10007730 | ELECTRICAL LINES: - TKFIELD WATER DRAW SYSTEM | |
10007732 | M&E - LINES, ELECTRICAL LINES: - TNKFLD WATER DR | |
10007736 | M&E - LINES, ELECTRICAL LINES: - EF042 MOTOR CON |
Exhibit A Page 1
Mandan Tankage, Mandan Rail Rack and Trackage, Mandan LPG Truck Rack
Asset No. |
Asset Description |
|
10007737 | M&E - LINES, ELECTRICAL LINES: - EF042 MOTOR CON | |
10007738 | M&E - LINES, ELECTRICAL LINES: - EF042 MOTOR CON | |
10007740 | M&E - LINES, ELECTRICAL LINES: - | |
10007741 | M&E - LINES, ELECTRICAL LINES: - | |
10007742 | M&E - LINES, ELECTRICAL LINES: - EF043 | |
10007743 | M&E - LINES, ELECTRICAL LINES: - EF043 | |
10007744 | M&E - LINES, ELECTRICAL LINES: - EF043 | |
10007745 | M&E - LINES, ELECTRICAL LINES: - 440 VOLT | |
10007746 | M&E - LINES, ELECTRICAL LINES - JET FUEL FACILITY | |
10007749 | ELECTR. LINES -CONVRT TK751 TO EMERG. SERV. (X-24) | |
10007755 | M&E - LINES, ELECTRICAL LINES: - STD.TRIPLEPHASE | |
10007758 | M&E - LINES, ELECTRICAL LINES: - | |
10007761 | M&E - LINES, ELECTRICAL LINES: - | |
10007762 | M&E -LOADING RACKS - REF M&E - LOADING RACKS - REF | |
10007763 | M&E - PROCESS UNIT - STRUCTURAL STEEL - REFINING | |
10007764 | M&E-PUC CONST-AOC REF,TRANS,SP, N- CRD GRVITOMETER | |
10007766 | M&E-PUC CONST-AOC REF,TRANS,SP, N- TK-769-52-06-13 | |
10007773 | M&E - PUMP UNIT - REFINING PUMP POWER UNIT - FB-716 Mixer | |
10007780 | M&E - TANK: ABOVE GROUND STORAGE | |
10007781 | M&E - TANK: ABOVE GROUND STORAGE | |
10007782 | M&E - TANK: ABOVE GROUND STORAGE - REF - EF12 FB-702 | |
10007783 | M&E - TANK: ABOVE GROUND STORAGE - REF - EF12 FB-702 | |
10007784 | M&E - TANK: ABOVE GROUND STORAGE - REF - EF12 FB-702 | |
10007785 | M&E - TANK: ABOVE GROUND STORAGE - REF - RISER FB-734 | |
10007786 | M&E-TANK:ABOVE GRND STORAGE-REF- 5 FOAM NOZZLES FB-705 | |
10007787 | TANK 725 - CONE ROOF | |
10007788 | M&E - TANK: ABOVE GROUND STORAGE - REF - CONE ROOF FB-703 | |
10007789 | M&E - TANK: ABOVE GROUND STORAGE - REF - EF15 FB-703 | |
10007790 | M&E - TANK: ABOVE GROUND STORAGE - REF - EF15 FB-703 | |
10007791 | M&E - TANK: ABOVE GROUND STORAGE - REF - EF15 FB-703 | |
10007792 | M&E - TANK: ABOVE GROUND STORAGE - REFINING TANK FB-746 | |
10007793 | M&E - TANK: ABOVE GROUND STORAGE - REF - EF188 FB-742 | |
10007794 | M&E - TANK: ABOVE GROUND STORAGE - REF - EF188 FB-742 | |
10007795 | M&E - TANK: ABOVE GROUND STORAGE - REF - EF188 FB-742 | |
10007796 | M&E-TANK:ABOVE GRND STORAGE-REF- FLOATING ROOF FB-764 | |
10007797 | M&E-TANK:ABOVE GRND STORAGE-REF- HEATING COILS | |
10007798 | TANK: NOZZLE ASSMBLYS ON TANKS (MCI-2601) FB-728 | |
10007799 | TANK:ABOVE GRND STORAGE-REF- NOZZLE ASSBLYS TK752 | |
10007800 | M&E-TANK:ABOVE GRND STORAGE-REF- LEVEL INDICATOR FB-704 | |
10007801 | M&E-TANK:ABOVE GRND STORAGE-REF- 1-1/2IN ORB VAL FB-767 |
Exhibit A Page 2
Mandan Tankage, Mandan Rail Rack and Trackage, Mandan LPG Truck Rack
Asset No. |
Asset Description |
|
10007802 | M&E - TANK: ABOVE GROUND STORAGE - REFS | |
10007803 | M&E - TANK: ABOVE GROUND STORAGE - REF - EF214 FB-752 | |
10007804 | M&E - TANK: ABOVE GROUND STORAGE - REF - EF214 FB-752 | |
10007805 | M&E - TANK: ABOVE GROUND STORAGE - REF - EF214 FB-752 | |
10007806 | TANK: ABOVE GROUND STORAGE - REFINING TANK TK-749 FB-749 | |
10007807 | M&E - TANK: ABOVE GROUND STORAGE - REFINING TANK FB-764 | |
10007808 | M&E - TANK: ABOVE GROUND STORAGE - EF208 FB747 | |
10007809 | M&E - TANK: ABOVE GROUND STORAGE - REF - EF208 FB-747 | |
10007810 | M&E-TANK:ABOVE GRND STORAGE-REF- INSTRUMENTATION FB-704 | |
10007811 | M&E-TANK:ABOVE GRND STORAGE-REF- INSTITION TR567 FB-766 | |
10007812 | M&E-TANK:ABOVE GRND STORAGE-REF- HEATING CABLE FB-767 | |
10007813 | M&E - TANK: ABOVE GROUND STORAGE - REF - NOZZLE FB-703 | |
10007814 | M&E - TANK: ABOVE GROUND STORAGE - REF - LIGHTNIN FB-733 | |
10007815 | TANK:ABOVE GRND STORAGE-TK 765 EARTH DIKE | |
10007816 | TANK:ABOVE GRND STORAGE - EARTH DIKE TK 765 | |
10007817 | M&E-TANK:ABOVE GRND STORAGE-REF- EF252 EARTH DK FB-765 | |
10007818 | M&E-TANK- DOOR SHEETS for TKS 713, 727, & 734 | |
10007819 | M&E-TANK:ABOVE GRND STORAGE-REF- NEW EPOXY FLOOR FB-703 | |
10007820 | M&E-TANK:ABOVE GRND STORAGE-REF- MIXER NOZZLE FB-701 | |
10007821 | M&E-TANK:ABOVE GRND STORAGE-REF- FIBERGLAS FLOOR FB-744 | |
10007822 | M&E-TANK:ABOVE GRND STORAGE-REF- 8FT DECANTR LIN FB-715 | |
10007823 | M&E-TANK:ABOVE GRND STORAGE-REF- 89A2412801-02 FB-706 | |
10007824 | M&E-TANK:ABOVE GRND STORAGE-REF- TIE-IN DVN STGE FB-771 | |
10007825 | M&E-TANK:ABOVE GRND STORAGE-REF- CHANGE SERVICE FB-740 | |
10007826 | M&E-TANK: EXT CIRC LINES FOR ENVIRON. GAS REV. FB-728 | |
10007827 | M&E-TANK:ABOVE GRND STORAGE-REF- FLOATING ROOF FB-729 | |
10007828 | M&E - TANK: ABOVE GROUND STORAGE - REF - EF127 FB-729 | |
10007829 | M&E - TANK: ABOVE GROUND STORAGE - TK729 | |
10007830 | M&E - TANK: ABOVE GROUND STORAGE - EF127 TK 729 | |
10007831 | M&E - TANK: ABOVE GROUND STORAGE - REF - EF190 FB-742 | |
10007832 | M&E - TANK: ABOVE GROUND STORAGE - REF - EF258 | |
10007833 | M&E - TANK: ABOVE GROUND STORAGE - REF - EF190 FB-742 | |
10007834 | M&E - TANK: ABOVE GROUND STORAGE - REF - EF190 FB-742 | |
10007835 | M&E-TANK:ABOVE GRND - 3-SAMPLE VALVES TK 757 | |
10007836 | M&E-TANK:ABOVE GRND STORAGE-REF- FIBERGLASS BTM. FB-742 | |
10007837 | M&E-TANK:ABOVE GRND STORAGE-REF- EPOXY FLOOR FB-723 | |
10007838 | M&E-TANK:ABOVE GRND STORAGE-REF- EPOXY FLOOR FB-708 | |
10007839 | M&E-TANK:ABOVE GRND STORAGE-REF- FIBERGLAS FLOOR FB-712 | |
10007840 | M&E-TANK:ABOVE GRND STORAGE-REF- MIXER NOZZLE FB-701 | |
10007841 | M&E - TANK: ABOVE GROUND STORAGE - REFINING TANK FB-770 |
Exhibit A Page 3
Mandan Tankage, Mandan Rail Rack and Trackage, Mandan LPG Truck Rack
Asset No. |
Asset Description |
|
10007842 | M&E - TANK: ABOVE GROUND STORAGE - REF - EF108 FB-725 | |
10007843 | M&E - TANK: ABOVE GROUND STORAGE - REF - EF122 FB-728 | |
10007844 | M&E - TANK: ABOVE GROUND STORAGE - REF - EF122 FB-728 | |
10007845 | M&E - TANK: ABOVE GROUND STORAGE - EF122 TK 728 | |
10007846 | M&E-TANK:ABOVE GRND STORAGE-REF- CONVERT SERVICE FB-740 | |
10007847 | TANK: ABOVE GROUND - MIXER ON TK 716 (PX-1519) | |
10007848 | M&E - TANK: ABOVE GROUND STORAGE - NU-2 TK 723 | |
10007849 | M&E-TANK:ABOVE GRND STORAGE-REF- MIXER NOZZLE | |
10007850 | M&E - TANK: ABOVE GROUND STORAGE - REF - CONE ROOF FB-745 | |
10007851 | M&E-TANK:ABOVE GRND STORAGE-REF- FIBERGLAS FLOOR FB-709 | |
10007852 | M&E - TANK: ABOVE GROUND STORAGE - REF - FB-701 | |
10007853 | M&E - TANK: ABOVE GROUND STORAGE - REF - CONE ROOF FB-730 | |
10007854 | M&E - TANK: ABOVE GROUND STORAGE - TANK 704 | |
10007855 | M&E - TANK: ABOVE GROUND STORAGE - REF - TK-704 | |
10007856 | M&E - TANK: ABOVE GROUND STORAGE - REF - EF259 | |
10007857 | M&E - TANK: ABOVE GROUND STORAGE - EF140 FB732 | |
10007858 | M&E - TANK: ABOVE GROUND STORAGE - REF - EF259 | |
10007859 | M&E - TANK: ABOVE GROUND STORAGE - REF - EF140 FB-732 | |
10007860 | M&E - TANK: ABOVE GROUND STORAGE - EF140 TK-732 | |
10007861 | M&E - TANK: ABOVE GROUND STORAGE - REFINING TANK FB-765 | |
10007862 | M&E - TANK: ABOVE GROUND STORAGE - REFINING TANK FB-746 | |
10007863 | M&E - TANK: ABOVE GROUND STORAGE - REF - PLATFORM FB-767 | |
10007864 | M&E-TANK:ABV GRND STORGE-REF MODIFY T-735 TO T-736 | |
10007865 | M&E - TANK: ABOVE GROUND STORAGE - REF - EF172 FB-739 | |
10007866 | TANK: ABOVE GROUND STORAGE - REF -CONE ROOF TK 765 | |
10007867 | M&E-TANK:ABOVE GRND STORAGE-REF- FLOATING ROOF 743 | |
10007868 | M&E-TANK:ABOVE GRND STORAGE-REF- FLOATING ROOF FB-705 | |
10007869 | TANK: ABOVE GROUND STORAGE - REF - TK 739 | |
10007870 | M&E - TANK: ABOVE GROUND STORAGE - REF - EF173 FB-739 | |
10007871 | M&E - TANK: ABOVE GROUND STORAGE - REF - EF237 FB-758 | |
10007872 | M&E - TANK: ABOVE GROUND STORAGE - REF - EF237 FB-758 | |
10007873 | M&E-TANK:ABOVE GRND STORAGE-REF- DEFLECTOR PLATE FB-734 | |
10007874 | M&E - TANK: ABOVE GROUND STORAGE - REF - LADDERS FB-766 | |
10007875 | M&E-TANK:ABOVE GRND STORAGE-REF- ELECT FACILITIE FB-744 | |
10007876 | M&E - TANK: ABOVE GROUND STORAGE - REF - FIREWALL FB-770 | |
10007878 | M&E-TANK:ABOVE GRND STORAGE-REF- INSUL ROOF TK 741 | |
10007879 | M&E-TANK:ABOVE GRND STORAGE-REF- CNVT TO LDD REG FB-757 | |
10007880 | M&E-TANK:ABOVE GRND STORAGE-REF- 88A0440601 FB-734 | |
10007881 | M&E - TANK: ABOVE GROUND STORAGE - REF - EF104 FB-724 | |
10007882 | M&E - TANK: ABOVE GROUND STORAGE - REF - EF123 FB-728 |
Exhibit A Page 4
Mandan Tankage, Mandan Rail Rack and Trackage, Mandan LPG Truck Rack
Asset No. |
Asset Description |
|
10007883 | M&E - TANK: ABOVE GROUND STORAGE - REF - EF123 FB-728 | |
10007884 | M&E - TANK: ABOVE GROUND STORAGE - REF - EF226 FB-755 | |
10007885 | M&E - TANK: ABOVE GROUND STORAGE - REF - EF207 FB-747 | |
10007886 | M&E - TANK: ABOVE GROUND STORAGE - REF - EF207 FB-747 | |
10007887 | M&E - TANK: ABOVE GROUND STORAGE - REF - EF207 FB-747 | |
10007888 | M&E - TANK: ABOVE GROUND STORAGE - REFINING TANK FB-746 | |
10007889 | M&E-TANK:ABOVE GRND STORAGE-REF- DEFLECTORS FB-704 | |
10007890 | M&E-TANK:ABOVE GRND- DEFLECTORS TK 766 | |
10007891 | M&E - TANK: ABOVE GROUND STORAGE - REF - LABOR FB-770 | |
10007892 | M&E-TANK:ABOVE GRND STORAGE-REF- FLOOR COATING FB-737 | |
10007893 | M&E-TANK:ABOVE GRND STORAGE-REF- AUR PIPELN REV FB-724, FB-748 | |
10007894 | M&E - TANK: ABOVE GROUND STORAGE - REF - LIGHTNIN FB-742 | |
10007895 | M&E - TANK: ABOVE GROUND STORAGE - REFINING TANK FB-723 | |
10007896 | M&E-TANK: FIREWATER DRAIN TK 704 | |
10007897 | M&E - TANK: ABOVE GROUND STORAGE - REF - LIGHTNIN FB-711 | |
10007898 | LIGHTNING TANK MIXERS - TK703 & TK730 (PX-1637) | |
10007899 | M&E-TANK:ABOVE GRND STORAGE-REF- FB723 RPLC ROOF | |
10007901 | M&E - TANK: ABOVE GROUND STORAGE - REFINING TANK FB-758 | |
10007902 | M&E - TANK: ABOVE GROUND STORAGE - REF - EF124 FB-728 | |
10007905 | M&E - TANK: ABOVE GROUND STORAGE - REF - EF238 FB-758 | |
10007906 | TANK 758-HP CONE TK-IN SERV 1954-EF238 FB-758 | |
10007907 | M&E - TANK: ABOVE GROUND STORAGE - REF - PLATFORMS FB-759-763 | |
10007908 | M&E - TANK: ABOVE GROUND STORAGE - REF - PIPING FB-723 | |
10007910 | INSTALLATION OF MIXERS ON TKS 741 & 758 | |
10007911 | M&E - TANK: ABOVE GROUND STORAGE - REF - 558725 FB-701 | |
10007912 | M&E-TANK:ABOVE GRND STORAGE-REF- WATER VALVES FB-704 | |
10007913 | M&E-TANK:ABOVE GRND STORAGE-REF- ELECT FACILITIE FB-732 | |
10007914 | M&E - TANK: ABOVE GROUND STORAGE - REFINING TANK FB-732 | |
10007915 | M&E - TANK: ABOVE GROUND STORAGE - REF - PIPING FB-716 | |
10007916 | M&E - TANK: ABOVE GROUND STORAGE - REFINING TANK FB-771 | |
10007917 | AIR BLOWING FACILITIES FOR FB-714 D.O. TANK | |
10007918 | TANK:ABOVE GRND STORAGE-REF- FLOATING ROOF TK 723 | |
10007919 | M&E - TANK: ABOVE GROUND STORAGE - REF - EF103 724 | |
10007920 | TANK: ABOVE GROUND STORAGE - TANK 701 | |
10007921 | M&E-TANK:ABOVE GRND STORAGE-REF- FLOATING ROOF FB-748 | |
10007922 | M&E - TANK: ABOVE GROUND STORAGE - REFINING TANK FB-758 | |
10007923 | TANK 750 - FLOATING ROOF | |
10007924 | M&E-TANK:ABOVE GRND STORAGE-REF- SITE PREP-TK-764 | |
10007925 | M&E-TANK:ABOVE GRND STORAGE-REF- CONCRETE BAFFLE - Fire Protection | |
10007926 | M&E - TANK: ABOVE GROUND STORAGE - REF - GRADING FB-759 - 763 |
Exhibit A Page 5
Mandan Tankage, Mandan Rail Rack and Trackage, Mandan LPG Truck Rack
Asset No. |
Asset Description |
|
10007927 | REPLACING WOODEB SLEEPERS IN TK FIELD & PIPE ALLEY | |
10007928 | M&E-TANK:ABOVE GRND STORAGE-REF- W/CONE ROOF FB-731 | |
10007929 | M&E - TANK: ABOVE GROUND STORAGE - REFINING TANK FB-737 | |
10007930 | M&E-TANK:ABOVE GRND STORAGE-REF- REVISE HEADER FB-751 | |
10007931 | M&E - TANK: ABOVE GROUND STORAGE - REFINING TANK FB-768 | |
10007932 | M&E - TANK: ABOVE GROUND STORAGE - REFINING TANK FB-714 & 715 | |
10007933 | M&E - TANK: ABOVE GROUND STORAGE - REFINING TANK FB-741 | |
10007934 | M&E-TANK:ABOVE GRND STORAGE-REF- FIREWALL DRAIN FB-716 | |
10007935 | M&E-TANK:ABOVE GRND STORAGE-REF- REVISE PIPING FB-734 | |
10007936 | M&E-TANK:ABOVE GRND STORAGE-REF- LEVEL SYSTEM FB-766 | |
10007938 | M&E-TANK:ABOVE GRND STORAGE-REF- TRACE GAGE LINE FB-767 | |
10007939 | M&E-TANK:ABOVE GRND STORAGE-REF- FOAM INJ.NOZZLE FB-752 | |
10007940 | M&E-TANK:ABOVE GRND STORAGE-REF- TRACE GAGE LINE FB-767 | |
10007941 | M&E-TANK:ABOVE GRND STORAGE-REF- FLEX ROOF DRAIN FB-740 | |
10007942 | M&E-TANK:ABOVE GRND STORAGE-REF- REVISE PIPING FB-734 | |
10007943 | M&E-TANK:ABOVE GRND STORAGE-REF- REVISE PIPING FB-734 | |
10007944 | M&E-TANK:ABOVE GRND STORAGE-REF- LEVEL INDICATOR FB-767 | |
10007945 | M&E-TANK:ABOVE GRND- FOAMITE NOZZLES TK 724 | |
10007946 | M&E - TANK: ABOVE GROUND STORAGE - TK 771 | |
10007947 | M&E-TANK: FLEX.ROOF DRAIN TK 740 | |
10007948 | M&E-TANK:ABOVE GRND STORAGE-REF- FIBERGLASS BTM. FB-742 | |
10007949 | TANK ABOVE GRND - EPOXY FLOOR TK 708 (PX-3513) | |
10007950 | M&E-TANK:ABOVE GRND STORAGE-REF- EPOXY FLOOR FB-723 | |
10007951 | M&E - TANK: ABOVE GROUND STORAGE - REF - NOZZLE FB-703 | |
10007952 | M&E-TANK:ABOVE GRND STORAGE-REF- S/N 8421318701 FB-701 | |
10007953 | M&E-TANK:ABOVE GRND STORAGE-REF- MIXER NOZZLE FB-701 | |
10007954 | M&E-TANK:ABOVE GRND STORAGE-REF- FIBERGLAS FLOOR FB-710 | |
10007955 | M&E-TANK:ABOVE GRND STORAGE-REF- FIBERGLAS FLOOR FB-709 | |
10007956 | TANK: ABOVE GROUND STORAGE- REF - CONE ROOF TK-745 | |
10007957 | CONVERT TK757 TO LDED & TK 732 TO TYPE A | |
10007958 | M&E-TANK:ABOVE GRND STORAGE-REF- LIGHTNIN W/25HP FB-750 | |
10007959 | M&E-TANK:ABOVE GRND STORAGE-REF- FIBERGLAS FLOOR FB-744 | |
10007963 | RAILROAD EQPT RR40 RAIL LOADING FACILITY UPGRADE | |
10010043 | DYED LS1 AND LS2 | |
10010056 | RAIL CLASS YARD EXPANSION | |
10010072 | UPGD FIRE PROT ON BUTANE SPHERE | |
10010075 | INSTAL LEVL ALRM RV COLLECTN PO | |
10010076 | DCS INSTLN OM/CHG ORDR EX C&O P | |
10010689 | MERCAPTAN INJECTION SYSTEM | |
10011037 | RESIDENCE TANK FB-745 CONVERSION |
Exhibit A Page 6
Mandan Tankage, Mandan Rail Rack and Trackage, Mandan LPG Truck Rack
Asset No. |
Asset Description |
|
10011045 | RESIDENCE TANK FB-745 CONVERSION | |
10011049 | MERCAPTAN INJECTION SYSTEM | |
10011159 | FB728 TANK INTERNAL FLOATING PAN AND CONE ROOF | |
10011333 | ROOF REPLACEMENT - TANK FB720 | |
10011415 | M&E - I.S.B.L. - INSTRUMENTS - REFINING | |
10011416 | PIPING TO UNLOAD FIELD BUTANE | |
10011454 | FLOATING SUCTION - FB731 HVN TANK | |
10011482 | M&E - I.S.B.L. - LINES, PIPING | |
10011491 | TANKFIELD PIPING - DDU ULSD OSBL | |
10011494 | TANKFIELD PIPING PLATFORMS - DDU ULSD OSBL | |
10011545 | FLOAT SUCTION - FB771 DEBUTANIZED VIRGIN NAPTHA TK | |
10011680 | TANKFIELD PIPING - DDU ULSD OSBL | |
10011922 | M&E - ISBL,LINES, PIPING - FOR TK 757 (PX-3505) | |
10011923 | 4 PIPING - LCO RAILRACK | |
10011978 | TANK 729 ROOF UPGRADE | |
10012299 | PIPES & VALVES - ULSD OSBL HANDLING | |
10012301 | MIXER-GD719A - TANK-FB719 - ULSD OSBL HANDLING | |
10012302 | TANK MODIFICATIONS-FB703, FB710, FB711 - ULSD OSBL | |
10012303 | INSTRUMENTATION - ULSD OSBL HANDLING | |
10012322 | M&E-I.S.B.L.-LINES, PIPING-REF- 2409LF GASOL | |
10012323 | M&E - I.S.B.L. - 4 LEAD-FREE CIRCULATION LINE | |
10012613 | ETHANOL IMPLEMENTATION - TANK 740 LOADING PUMP | |
10012614 | ETHANOL IMPLEMENTATION - TANK 740 LOADING STATION | |
10012615 | ETHANOL IMPLEMENTATION - PIPES, VALVES & FITTINGS | |
10012616 | ETHANOL IMPLEMENTATION - TANK 758 ROOF | |
10012995 | TANK FB-752 - DOUBLE BOTTOM FLOOR | |
10013027 | ISBL LINES & PIPING - IMPROVE C3, C4, LPG HANDLING | |
10013028 | CONCRETE PIER SUPPORTS - LCO RAILRACK | |
10013810 | M&E - FIRE/SAFETY EQPT - REFINING WTR.TO GA-759S | |
10013886 | TANK FB-752 - DOUBLE BOTTOM FLOOR | |
10014101 | GA-771 DUAL TANDEM SEAL ASSEMBLY | |
10014102 | GA-771S DUAL TANDEM SEAL ASSEMBLY | |
10014103 | GA-772 DUAL TANDEM SEAL ASSEMBLY | |
10014104 | GA-772S DUAL TANDEM SEAL ASSEMBLY | |
10014319 | OIL MOVEMENT (O.M.) -BLOCK / BLEED VALVES & PIPING | |
10014335 | GA-780 HVN CHARGE PUMP | |
FB-707 TANK MODIFICATIONS - WET GAS SCRUBBER | ||
10014814 | LPG RERUN PUMP WITH VFD DRIVE - GA-758 | |
10014815 | PIPE, VALVES, AND FITTINGS- OFF-SPEC LPG RERUN SYS | |
10015864 | FB-723 Tank Bottom |
Exhibit A Page 7
Mandan Tankage, Mandan Rail Rack and Trackage, Mandan LPG Truck Rack
Asset No. |
Asset Description |
|
10016601 | FB-717 (2 SETS OF 5 SAMPLE TABS) | |
10016602 | FB-718 (2 SETS OF 5 SAMPLE TABS) | |
10016603 | FB-719 (2 SETS OF 5 SAMPLE TABS) | |
10016604 | FB-720 (2 SETS OF 5 SAMPLE TABS) | |
10016605 | FB-726 (2 SETS OF 5 SAMPLE TABS) | |
10016606 | FB-730 (2 SETS OF 8 SAMPLE TABS) | |
10016607 | FB-732 (2 SETS OF 8 SAMPLE TABS) | |
10016608 | FB-733 (2 SETS OF 8 SAMPLE TABS) | |
10016609 | FB-734 (2 SETS OF 8 SAMPLE TABS) | |
10016610 | FB-723 (2 SETS OF 8 SAMPLE TABS) | |
10016611 | FB-725 (2 SETS OF 5 SAMPLE TABS) | |
10016612 | FB-729 (2 SETS OF 5 SAMPLE TABS) | |
10016613 | FB-740 (2 SETS OF 5 SAMPLE TABS) | |
10016614 | FB-748 (2 SETS OF 5 SAMPLE TABS) | |
10016615 | FB-750 (2 SETS OF 5 SAMPLE TABS) | |
10016616 | FB-752 (2 SETS OF 5 SAMPLE TABS) | |
10017148 | FB-701 AUTOMATIC TANK GAUGING SYSTEM | |
10017149 | FB-702 AUTOMATIC TANK GAUGING SYSTEM | |
10017150 | FB-753 AUTOMATIC TANK GAUGING SYSTEM | |
10017151 | FB-723 AUTOMATIC TANK GAUGING SYSTEM | |
10017152 | FB-740 AUTOMATIC TANK GAUGING SYSTEM | |
10017153 | FB-725 AUTOMATIC TANK GAUGING SYSTEM | |
10017154 | FB-729 AUTOMATIC TANK GAUGING SYSTEM | |
10017155 | FB-748 AUTOMATIC TANK GAUGING SYSTEM | |
10017156 | FB-750 AUTOMATIC TANK GAUGING SYSTEM | |
10017157 | FB-752 AUTOMATIC TANK GAUGING SYSTEM | |
10017158 | FB-714 AUTOMATIC TANK GAUGING SYSTEM | |
10017159 | FB-715 AUTOMATIC TANK GAUGING SYSTEM | |
10017160 | FB-741 AUTOMATIC TANK GAUGING SYSTEM | |
10017161 | ELECTR./CIVIL INFRASTRUCTURE - AUTO TANK GAUGING | |
10017162 | AUTOMATIC TANK GAUGING PC HARDWARE | |
10017163 | AUTOMATIC TANK GAUGING PC SOFTWARE (ENTIS XL) | |
10017722 | PIPE, VALVES, FITTINGS | |
10017728 | FB-716 NEW ROOF, INTERNAL COATING, AND GAUGE POLE | |
10017729 | FB-718 NEW GAUGE POLE AND COATING | |
10017730 | DISTILLATE SURGE TANK CONTROL VALVE USV-718 | |
10017731 | GASOLINE SURGE TANK CONTROL VALVE USV-716 | |
10017732 | TANK 716 LEVEL GAUGE LT-7716 | |
10017733 | TANK 718 LEVEL GAUGE LT-7718 | |
10017734 | TANK 718 TEMPERATURE TRANSMITTER TUT-7718 |
Exhibit A Page 8
Mandan Tankage, Mandan Rail Rack and Trackage, Mandan LPG Truck Rack
Asset No. |
Asset Description |
|
10017735 | TANK 716 TEMPERATURE TRANSMITTER TUT-7716 | |
10017736 | TANK 718 HIGH LEVEL SWITCH LSHH-7718 | |
10017737 | TANK 716 HIGH LEVEL SWITCH LSHH-7716 | |
10017738 | 4 PIPING FROM FB-727 TO FB-733 | |
10017738 | 4 PIPING FROM FB-727 TO FB-733 | |
10019266 | SAMPLE TAPS FOR TANK 711 | |
10019401 | FB-705 CONE ROOF | |
10019402 | FB-705 ALUMINUM INTERNAL FLOATING ROOF | |
10019403 | FB-705 FOAM CHAMBERS | |
10019508 | TANK 703 NEW DOUBLE BOTTOM | |
10019509 | TANK 703 FOAM CHAMBERS | |
10019531 | TANK 703 NEW BERM | |
10019755 | PIPE/VALVES/FITTINGS - PUMP SUCTION AND DISCHARGE | |
10021206 | LEVEL TRANSMITTER: TKS 711,717,726,727,730,733,734 | |
10021207 | TEMP TRANSMITTERS: TKS 711,717,726,727,730,733,734 | |
10021208 | LEVEL ALARMS: TKS 711,717, 726,727,730, 733,734 | |
10021209 | LADDER ON TANK FB-741 | |
10021210 | LADDER ON TANK FB-715 | |
10021211 | PLATFORM FOR FB-702 | |
10021212 | PLATFORM FOR FB-717 | |
10021213 | PLATFORM FOR FB-752 | |
10021214 | GAUGE POLE FOR FB-711 | |
10021215 | NEW NOZZLES FOR FB-726 (NO GAUGE POLE) | |
10021216 | GAUGE POLE FOR FB-727 | |
10021217 | GAUGE POLE FOR FB-730 | |
10021218 | GAUGE POLE FOR FB-733 | |
10021219 | GAUGE POLE FOR FB-734 | |
10021220 | CONTROL SYSTEM SOFTWARE | |
10022256 | PIPING FOR KEROSENE INJECTION INTO HEATER OIL | |
10022357 | FB-753 NEW DOUBLE BOTTOM WITH COATING | |
10022358 | FB-753 TANK BASIN UPGRADE | |
10022462 | FB-709 NEW DOUBLE BOTTOM WITH COATING | |
10022463 | FB-709 TANK BASIN UPGRADE | |
10022797 | EMERGENCY SHUT-OFF VALVE USV-6754 & CONDUIT/CABLE | |
10022798 | PIPING ASSOCIATED WITH USV-6754 | |
10022799 | LEVEL TRANSMITTER: TANK 747 | |
10022800 | TEMP TRANSMITTERS TANK 747 | |
10022801 | LEVEL ALARM: TANK 747 | |
10022802 | CONTROL SYSTEM SOFTWARE | |
10023702 | FB-712 NEW DOUBLE BOTTOM |
Exhibit A Page 9
Mandan Tankage, Mandan Rail Rack and Trackage, Mandan LPG Truck Rack
Asset No. |
Asset Description |
|
10023703 | FB-712 FOAM PIPING AND CHAMBERS | |
30000664 | Electrical/Instrument Components | |
30001339 | Concrete/Earth | |
95000461 | Repair Costs | |
95000462 | Repair Costs | |
99000364 | TANK 727 FLOOR COATING & REPAIRS | |
99000370 | TANK 764- NEW DOUBLE BOTTOM FLOOR | |
99000371 | TANK 764 - MAJOR PLANNED UPGRADES | |
99000445 | TANK 718 NEW CONE ROOF & COATING | |
99000454 | FB-736 DOUBLE BOTTOM FLOOR | |
99000455 | FB-736 CONE ROOF | |
99000765 | FB-701 TANK RESTORATION COSTS | |
99000855 | FB-728 MISC. REPAIRS AND COATINGS | |
99000947 | FB-714 RING #1 | |
99000948 | FB-714 MISC. BOTTOM PATCHING | |
99000972 | FB-727 SECOND COURSE PARTIAL REPLACEMENT | |
99001051 | FB-771 PRIMARY SEAL | |
99001052 | FB-771 SECONDARY SEAL | |
99001053 | FB-771 ERF SUMP | |
99001159 | FB-771 TANK BASIN UPGRADE | |
99001320 | FB-753 TANK RESTORATION | |
99001460 | FB-731 OUTER RIM REPLACE AND TANK INSP | |
99001477 | FB-709 CONE ROOF REPLACEMENT | |
99001667 | FB-702 MISC REPAIRS TO PRIMARY & SECONDARY SEALS; | |
99001668 | FB-715 SHELL REPAIRS | |
99001675 | FB-747 BOTTOM REPAIRS | |
10005992 | M&E - I.S.B.L.-INSTRUMENTS-REF- SILVER GASOLINE | |
10006089 | M&E-I.S.B.L.-LINES, PIPING-REF- TK 705 HVN SVC | |
10006104 | FACILITIES TO BLEND RR 40 DSL IN TK 744 | |
10006213 | M&E-I.S.B.L.-LINES, PIPING-REF- L.FREE PREMIUM | |
10006218 | M&E-I.S.B.L.-LINES, PIPING-REF- INSUL.&HT.TRACE crude line | |
10006220 | M&E-I.S.B.L.-LINES, PIPING-REF- INSUL.&HT.TRACE crude line | |
10006238 | M&E-I.S.B.L.-LINES, PIPING-REF- SILVER GASOLINE | |
10006247 | M&E - LINES, ELECTRICAL LINES: - EXT LTNG FB-750 | |
10006268 | M&E - PUMP UNIT - REFINING - GA730S FLO BYPS | |
10006289 | M&E - PUMP UNIT - REFINING - C3 LOADING | |
10006320 | M&E - PUMP UNIT - REFINING - SITE PREP. GA - 778 | |
10006009 | M&E-I.S.B.L.-LINES, PIPING-REF- SEGREGATE RR40 | |
10006056 | M&E-I.S.B.L.-LINES, PIPING-REF- PARALLEL CRUDE | |
10007214 | M&E - ANALYTICAL EQPT - REFINING LABORATORY EQPT - LPG Upgrade |
Exhibit A Page 10
Mandan Tankage, Mandan Rail Rack and Trackage, Mandan LPG Truck Rack
Asset No. |
Asset Description |
|
10007220 | M&E - REFINING COMPRESSOR UNIT - ELECTRICAL:LPG facility upgrade | |
10007307 | M&E - GARAGE,SERVICE TOOLS & EQPT - REF - TRACK #6 | |
10007337 | M&E - I.S.B.L.-INSTRUMENTS-REF- CETANE IMPROVR gatepak | |
10007353 | M&E - I.S.B.L. - INSTRUMENTS - REFINING upgrade LPG alarms | |
10007354 | LPG/BUTANE TV SURVIELLANCE & REMOTE STOP VALVES | |
10007357 | M&E - I.S.B.L. - INSTRUMENTS - REFINING LPG upgrade | |
10007358 | M&E - ISBL INSTRUMENTS- REMOTE TRIP LPG/BUTANE | |
10007464 | M&E - I.S.B.L. - LINES, PIPING - REFINING I.S.B.L. LPG Upgrade | |
10007466 | M&E - I.S.B.L. - LINES, PIPING - REFINING I.S.B.L. LPG facility upgrade | |
10007470 | M&E-I.S.B.L.-LINES, PIPING-REF- LPG FACIL UPGRD | |
10007474 | M&E-I.S.B.L.-LINES, PIPING-REF- RR40 DCO HEADER | |
10007475 | CONVERT FB-756 AST INTO WATER/GASO SEPARATOR | |
10007527 | M&E - LINES, ELECTRICAL LINES: - LPG Upgrade | |
10007529 | M&E - LINES, ELECTRICAL LINES: - LPG facility upgrade | |
10007531 | M&E - LINES, ELECTRICAL LINES: - ALARMS LPG AREA | |
10007555 | M&E - PUC CONST-AOC RFG,TRANS, SP, N LPG facility upgrade | |
10007587 | M&E-TANK:ABOVE GRND STORAGE-REF- S/N 8421318702 FB-729 Mixers | |
10007606 | M&E-TANK:ABOVE GRND STORAGE-REF- S/N 8421318702 FB-729 Mixers | |
10007613 | M&E - FIRE/SAFETY EQPT - REFINING LPG TK.LOAD LIN | |
10007614 | M&E - GARAGE, SERVICE TOOLS & EQUIPMENT | |
10007615 | M&E-GARAGE,SERV TOOLS & EQPT-REF- WARNING LIGHTS | |
10007617 | TRACK 4 - 1500LF | |
10007618 | M&E-GARAGE,SERV TOOLS & EQPT-REF- EF001LF1500 | |
10007619 | M&E-GARAGE,SERV TOOLS & EQPT-REF- EF001LF1500 | |
10007620 | M&E-GARAGE,SERV TOOLS & EQPT-REF- EF0086-107H | |
10007621 | M&E-GARAGE,SERV TOOLS & EQPT-REF- EF0086-107H | |
10007622 | M&E - GARAGE, SERVICE TOOLS & EQUIPMENT | |
10007623 | M&E-GARAGE,SERV TOOLS & EQPT-REF- RAILROAD SPUR | |
10007624 | M&E-GARAGE,SERV TOOLS & EQPT-REF- C3 LOADING | |
10007625 | M&E-GARAGE,SERV TOOLS & EQPT-REF- CASGHD.UNLOAD. | |
10007626 | M&E-GARAGE,SERV TOOLS & EQPT-REF- FIELD C4 UNLOAD | |
10007627 | M&E - GARAGE,SERVICE TOOLS & EQUIPMENT - REFINING | |
10007628 | M&E-GARAGE,SERV TOOLS & EQPT-REF- EF005 LPG RACKS | |
10007629 | M&E-GARAGE,SERV TOOLS & EQPT-REF- EF005 LPG RACKS | |
10007630 | M&E -GARAGE,SERV TOOLS & EQPT-REF- EF005 LPG RACKS | |
10007631 | M&E -GARAGE,SERV TOOLS & EQPT-REF- FIELD C4 UNLOAD | |
10007632 | M&E - GARAGE,SERVICE TOOLS & EQPT - REF - GOODALL | |
10007633 | M&E - GARAGE,SERVICE TOOLS & EQUIPMENT - REFINING | |
10007634 | M&E - GARAGE,SERVICE TOOLS & EQPT - REF - NU 5 | |
10007635 | M&E - GARAGE,SERVICE TOOLS & EQPT - REF - EF006 |
Exhibit A Page 11
Mandan Tankage, Mandan Rail Rack and Trackage, Mandan LPG Truck Rack
Asset No. |
Asset Description |
|
10007636 | M&E - GARAGE,SERVICE TOOLS & EQPT - REF - EF006 | |
10007637 | M&E - GARAGE,SERVICE TOOLS & EQPT - REF - EF006 | |
10007638 | M&E -GARAGE,SERV TOOLS & EQPT-REF- MOVE SPOUTS 3T2 | |
10007639 | M&E - GARAGE,SERVICE TOOLS & EQUIPMENT - REFINING | |
10007640 | M&E - GARAGE,SERVICE TOOLS & EQUIPMENT - REFINING | |
10007641 | M&E- RR CASINGHEAD UNLOAD GASOLINE (PX-524) | |
10007642 | M&E - I.S.B.L. - INSTRUMENTS - REFINING | |
10007643 | M&E - I.S.B.L.-INSTRUMENTS-REF- MERCAPTAN | |
10007644 | M&E - I.S.B.L.-INSTRUMENTS-REF- STORE METHANOL | |
10007645 | M&E - I.S.B.L. - LINES, PIPING - REF - 34 122 | |
10007646 | M&E - I.S.B.L. - LINES, PIPING - REFINING I.S.B.L. | |
10007647 | M&E - I.S.B.L. - LINES, PIPING - REF - NU 2 | |
10007648 | M&E - I.S.B.L. - LINES, PIPING - REFINING I.S.B.L. | |
10007649 | M&E - I.S.B.L. - LINES, PIPING - REF - C3 LOADING | |
10007650 | M&E-I.S.B.L.-LINES, PIPING-REF- CASEHD.UNLOAD | |
10007651 | M&E - I.S.B.L. - LINES, PIPING - REFINING I.S.B.L. | |
10007652 | M&E - I.S.B.L. - LINES, PIPING - REFINING I.S.B.L. | |
10007654 | M&E - LINES, ELECTRICAL LINES: - LIGHT FIXTURES | |
10007655 | M&E - LINES, ELECTRICAL LINES: - EF001 | |
10007656 | M&E - LINES, ELECTRICAL LINES: - EF001 | |
10007657 | M&E - LINES, ELECTRICAL LINES: - EF001 | |
10007658 | M&E - LINES, ELECTRICAL LINES: - FIELD C4 UNLOAD | |
10007659 | M&E - LINES, ELECTRICAL LINES: - FLOODLIGHT | |
10007660 | M&E - LINES, ELECTRICAL LINES: - EF001 | |
10007661 | M&E - LINES, ELECTRICAL LINES: - EF001 | |
10007662 | M&E - LINES, ELECTRICAL LINES: - EF001 | |
10007663 | M&E - LINES, ELECTRICAL LINES: - | |
10007664 | M&E - LINES, ELECTRICAL LINES: - | |
10007665 | M&E - LINES, ELECTRICAL LINES: - FIELD C4 UNLOAD | |
10007666 | M&E - LOADING RACKS - REF FURNACE OIL TO RAIL RACK | |
10007667 | M&E - PUMP UNIT - REFINING - CASGHD.RUNDOWN GA-784 | |
10010050 | LPG RR LIGHTING UPGRD & SHELTER | |
10011481 | M&E - I.S.B.L. - LINES, PIPING | |
10016485 | LAND IMPROVEMENTS FOR CLASS YARD EXPANSION | |
10016486 | NEW RAILROAD FOR CLASS YARD EXPANSION | |
10016487 | SIX NAPHTHA LOADING ARMS | |
10016488 | NAPHTHA LOADING - PIPES/VALVES/FITTINGS |
Exhibit A Page 12
Mandan Tankage, Mandan Rail Rack and Trackage, Mandan LPG Truck Rack
EXHIBIT B
Salt Lake Tankage
Salt Lake Rail Rack and Trackage
Salt Lake Refinery Truck Racks
Asset No. |
Asset Description |
|
10012941 | PIPING - LCO TO TRUCK RACK LOADING SYSTEM | |
10004434 | M&E -I.S.B.L.-INSTRUMENTS-REF -LOADING RACK | |
10002558 | PIPING, CONTAINMENT PAD, ETC. FOR VACUUM TRUCKS | |
10004359 | M&E-I.S.B.L.-LINES, PIPING-REF-HVY FUEL OIL RK | |
10005754 | DCO TRUCK LOAD OUT | |
10002553 | DCO TRUCK LOAD OUT | |
10011460 | SUCTION AND DISCHARGE PIPING- BLACK WAX TRUCK RACK | |
10011457 | CONCRETE PAD & DRAIN - BLACK WAX TRUCK RACK | |
10011470 | CONCRETE PAD & DRAIN - BLACK WAX TRUCK RACK | |
10005758 | HPD BLACK WAX UNLOADING | |
10011458 | CONRETE PUMP PAD - BLACK WAX TRUCK RACK | |
10004358 | M&E-I.S.B.L.-LINES, PIPING-REF-CRUDE OIL RACK | |
10004272 | M&E-I.S.B.L.-LINES, PIPING-REF-CRUDE UNLOADING | |
10011459 | PUMP - BLACK WAX TRUCK RACK | |
10011471 | PUMP - BLACK WAX TRUCK RACK | |
10011473 | PUMP - BLACK WAX TRUCK RACK | |
10011472 | PUMP - BLACK WAX TRUCK RACK | |
10004491 | M&E-GARAGE, SERV TOOLS & EQPT-REF-CRUDE OIL RACK | |
10011786 | PUMP - BLACK WAX TRUCK RACK | |
10014884 | BLR VAPOR RECOVERY SYSTEM COMPRESSION | |
10019965 | BUTANE LOADING RACK STRUCTURAL REINFORCEMENT | |
10014885 | BLR VAPOR RECOVERY SYSTEM AUTOMATION | |
10013156 | BUTANE LOADING RACK PIPING | |
10004441 | M&E -I.S.B.L.-INSTRUMENTS-REF-BLR TRC GROUDNG | |
10004363 | M&E-I.S.B.L.-LINES, PIPING-REF-BUTANE LOADING | |
10004122 | M&E-PROCESS UNIT COST CONST-AOC -BUTANE LOAD SPT | |
10013452 | LAND (UNION PACIFIC RR TRACKS & PROPERTY)15 ACRES | |
10020131 | LOADING ARMS/FALL PROTECTION SPOT 1/2 - MODIFY LOA | |
10013453 | RAILROAD TRACKS | |
10011207 | PIPING/CONTROL VALVES - ALKYLATE RAIL LOADING RACK | |
10011208 | VAPOR RECOVERY SYS W/ WALKWAY- ALKY RAIL LOAD RACK | |
10004129 | M&E- REF OMD:OFFLOAD KEROSENE FROM RAIL | |
10004139 | M&E -LOADING RACKS -REF | |
10011258 | PIPING/CONTROL VALVES - ALKYLATE RAIL LOADING RACK | |
10004138 | M&E -LOADING RACKS -REF |
Exhibit B Page 1
Salt Lake Tankage, Salt Lake Rail Rack and Trackage, Salt Lake Refinery Truck Racks
Asset No. |
Asset Description |
|
10004493 | M&E-GARAGE, SERV TOOLS & EQPT-REF-TANK CAR LOAD | |
10014303 | BAKKEN CRUDE UNLOADING ARM | |
10011259 | VAPOR RECOVERY SYS W/ WALKWAY- ALKY RAIL LOAD RACK | |
10004165 | M&E -I.S.B.L.-INSTR -REF BLR U/G RAIL SPOT CAMERA | |
10003954 | RAILROAD EQUIPMENT TANK CAR - | |
10011209 | CONCRETE BASE @ VAPOR RECOVERY-ALKY RAIL LOAD RACK | |
10004365 | M&E -I.S.B.L. -LINES, PIPING -REF -UN TRACK | |
10003955 | RAILROAD EQUIPMENT TANK CAR -FREIGHT | |
10020134 | TANK 188 | |
10020127 | F-848 PP STORAGE BULLET | |
10020128 | F-849 PP STORAGE BULLET | |
10020135 | PIPING FROM TLR TO TANKAGE | |
10048457 | TANK 144 | |
99000879 | TANK 326 TURNAROUND IN 2014 | |
10020136 | STRUCTURAL STEEL FOR PIPING AND RELATED TO TANK | |
10017221 | 2013 PHASE 1 WAXEY TANK 186 | |
10020129 | J-988A PP LOADING PUMPS | |
10020130 | J-988B PP LOADING PUMPS | |
10003994 | M&E -TANK: ABV GRND STRAGE -REF -WATER DRAW SYS | |
10020318 | J-878A SOFT START FOR PUMP | |
99000409 | TANK 328 RESTORATIONS - 2012 | |
10003997 | M&E -TANK: ABV GRND STRAGE -REF TANK -LSDHF | |
99000410 | TANK 325 RESTORATIONS - 2012 | |
10014608 | BLACK WAX PUMP | |
10004106 | M&E -PUMP UNIT -REF POWER UNIT -WATER DRAW SYS | |
10004389 | M&E -I.S.B.L.-INSTRUMENTS-REF -IN-LINE BLENDER | |
99001120 | TANK 204 | |
10011012 | 9TH ROAD CROSSING UPGRADE | |
99000368 | TANK 323 RESTORATION - 2011 | |
10004175 | M&E -I.S.B.L. -LINES, PIPING -REF -PIPELINE | |
10014744 | UPGRADE SPILL CONTAINMENT 2011 | |
10011819 | TK-204 ROOF AND PROTECTIVE COATING TO BOTTOM | |
10011903 | ROOF - TANK 322 | |
10003968 | M&E-TANK:ABV GRND STRAGE-REF SLC-OMD TK243 BOTTOM | |
10013154 | TANK 326 (2) PUMPS | |
10003962 | M&E-TANK-REF CAP-SLC-OMD TF2, TK242 FLR REPL | |
10011934 | TK-246 & TK-247 PIPING - ROUTED FOR ULSD #1 | |
10004003 | M&E -TANK: ABV GRND STRAGE -REF -TF2 BOTOM REPL | |
10011967 | TK-204 PIPING - ROUTED TO HSD BLENDER (ULSD CONV) | |
10004030 | M&E -TANK: ABOVE GROUND STORAGE |
Exhibit B Page 2
Salt Lake Tankage, Salt Lake Rail Rack and Trackage, Salt Lake Refinery Truck Racks
Asset No. |
Asset Description |
|
10004137 | M&E -PIPING FAC TO GET ISOBUTANE TO BLENDING | |
10004332 | M&E-I.S.B.L.-LINES, PIPING-REF-WATER DRAW SYS | |
10004004 | M&E -TANK: ABV GRND STRAGE -REF -TF2 BOTTOM REPL | |
99000357 | TANK 243 RESTORATION - 2010 | |
10004328 | M&E-I.S.B.L.-LINES, PIPING-REF-OFF-TEST LINE | |
10004311 | M&E-I.S.B.L.-LINES, PIPING-REF-IN-LINE BLENDER | |
10002568 | UNITED MS-B 4 DISTILLATE PIPELINE PUMP | |
10004284 | M&E-I.S.B.L.-LINES, PIPING-REF-TF3 ALKYLATE LP | |
10003966 | M&E-TANK-SLC-TANK 245 SECONDRY CONTAINMNT BOTTOM | |
10002991 | 9TH ROAD CROSSING UPGRADE - PIPING | |
10004123 | M&E -PROCESS UNIT COST CONST- NEW BLACK WAX PUMP | |
10013059 | UPGR TANK CONTAINMENT SYS - ADJACENT TANKS 206/268 | |
10003964 | M&E-TANK:ABV GRND STRAGE-CAP-SLC-OMD TK209 BOTTOM | |
10003969 | M&E -TANK: ABV GRND STRAGE -REF ABV GRND STRAGE - | |
10003999 | M&E -TANK: ABV GRND STRAGE -REF TANK -LSDHF | |
10011715 | ULTRAFORMATE 6RUNDOWN LINE-OMD CONTRL RM TO TK298 | |
10004300 | M&E-I.S.B.L.-LINES, PIPING-REF-UPGRADE@TANK206 | |
10004196 | M&E -I.S.B.L. -LINES, PIPING -REF I.S.B.L.: - | |
10004024 | M&E -TANK: ABOVE GROUND STORAGE | |
10012940 | PIPING FROM TANK 211 TO PIPELINE | |
10004126 | M&E -PROC UNIT COST CONST- TF2, TK 141 BOTTOM REPL | |
10004025 | M&E -TANK: ABOVE GROUND STORAGE | |
10014260 | TANK GAUGING UPGRADES 2008 | |
10013145 | REMOTE TELEMETRY UNIT 3 - LEVEL TRANSMITTER | |
10004169 | M&E - REF CAP-SLC-OMD TURBO RUNDOWN EXPANSION | |
10004026 | M&E -TANK: ABV GRND STRAGE -REF TANK -INTERNAL | |
10004010 | M&E -TANK: ABV GRND STRAGE -REF TANK -STEEL BOTTOM | |
10004290 | M&E-I.S.B.L.-LINES, PIPING-REF-TANK FARM NO 2 | |
10003961 | M&E-TANK-REF TF3 TK307 BOTTOM REPL & INTERNL COAT. | |
10004013 | M&E -TANK: ABV GRND STRAGE -REF -NEW BOTTOM&ROOF | |
10022472 | TANK 190 | |
10003956 | M&E -PIPING 1997 OMD MCI | |
10004000 | M&E -TANK: ABV GRND STRAGE -REF -142 BOT REPLACE | |
10002570 | SECONDARY FLOOR - TANK # 252 | |
10010218 | REPLACE PRIMARY AND SECONDARY SEAL IN TANK 326 | |
10003970 | M&E -TANK: ABV GRND STRAGE -REF | |
10004128 | M&E- REF TK 141 CONVERSN TO RR 40/LCCO | |
10004088 | M&E -PUMP UNIT -REF POWER UNIT -P-857 TK FARM#3 | |
10004390 | M&E -I.S.B.L.-INSTRUMENTS-REF -IN-LINE-BLENDER | |
10004335 | M&E -I.S.B.L. -LINES, PIPING -REF -TANK 206 |
Exhibit B Page 3
Salt Lake Tankage, Salt Lake Rail Rack and Trackage, Salt Lake Refinery Truck Racks
Asset No. |
Asset Description |
|
10004028 | M&E -TANK: ABV GRND STRAGE -REF -PH 79 CKM0865 | |
10003981 | M&E -TANK: ABV GRND STRAGE -REF TANK -FOAM DAM | |
10011469 | ROAD CROSSING - TANK FARM # 2 | |
10004351 | M&E -I.S.B.L. -LINES, PIPING -REF -TF2 | |
10003982 | M&E -TANK: ABV GRND STRAGE -REF TANK -NEW BOTTOM | |
10003993 | M&E -TANK: ABV GRND STRAGE -REF -PRIM/SEC SEALS | |
10004310 | M&E-I.S.B.L.-LINES, PIPING-REF-INLINE BLENDER | |
10004021 | M&E -TANK: ABOVE GROUND STORAGE | |
10002571 | SECONDARY FLOOR - TANK # 308 | |
10003973 | M&E -TANK: ABV GRND STRAGE -REF -SECONDARY SEAL | |
10003971 | M&E -TANK: ABV GRND STRAGE -REF | |
10003988 | M&E -TANK: ABV GRND STRAGE -REF -PRIMARY/SC SEAL | |
10004017 | M&E -TANK: ABV GRND STRAGE -REF TANK -PIPING | |
10004049 | M&E -TANK: ABV GRND STRAGE -REF TANK -STEAM HEAT | |
10004298 | M&E-I.S.B.L.-LINES, PIPING-REF-TF2 12 1000 | |
10005760 | OMD 813 A/B/C LOW FLOW SWITCH | |
10004046 | M&E -TANK: ABV GRND STRAGE -REF -HTG LEVEL SYS | |
10004012 | M&E -TANK: ABV GRND STRAGE -REF TANK -NEW BOTTOM | |
10003998 | M&E -TANK: ABV GRND STRAGE -REF -HTG LEVEL SYS | |
10004029 | M&E -TANK: ABV GRND STRAGE -REF -FIBERGLASS BTM | |
10003967 | M&E-TANK-CAP-SLC-OMD PLATFRMS AT TK188 & TK246 | |
10004355 | M&E -I.S.B.L. -LINES, PIPING -REF -TF #2&3 | |
10003972 | M&E -TANK: ABV GRND STRAGE -REF TANK -EXTERNAL | |
10004164 | M&E -I.S.B.L.-INSTR -REF GASOLINE COMPOSITOR | |
10004007 | M&E -TANK: ABOVE GROUND STORAGE | |
10004329 | M&E-I.S.B.L.-LINES, PIPING-REF-MTBE CTL VALVE | |
10004034 | M&E -TANK: ABV GRND STRAGE -REF -FIBERGLASS BTM | |
10004297 | M&E-I.S.B.L.-LINES, PIPING-REF-TF2 12 X 650 | |
10004127 | M&E -TF2, TK 297 PRIMARY SEAL REPL & INTRNL COATNG | |
10004155 | M&E -LINES, ELECTRICAL LINES: -TF3 PUMP STA | |
10004047 | M&E -TANK: ABV GRND STRAGE -REF -SN-90A2968501 | |
10004327 | M&E -I.S.B.L. -LINES, PIPING -REF -TF2 TF3 | |
10004044 | M&E -TANK: ABOVE GROUND STORAGE | |
10003965 | M&E-TANK-REF CAP-SLC-OMD-TK328 SEAL REPL | |
10005764 | OMD-U/G T-329 RV & PIPING | |
10004089 | M&E -PUMP UNIT -REF POWER UNIT -P-860ATK FARM#3 | |
10003995 | M&E -TANK: ABV GRND STRAGE -REF -RING REPLACEMNT | |
10004353 | M&E-I.S.B.L.-LINES, PIPING-REF-TF2 INSULATED | |
10004356 | M&E-I.S.B.L.-LINES, PIPING-REF-TF#3 RELOCATE | |
10004294 | M&E-I.S.B.L.-LINES, PIPING-REF-TANK FARM NO 3 |
Exhibit B Page 4
Salt Lake Tankage, Salt Lake Rail Rack and Trackage, Salt Lake Refinery Truck Racks
Asset No. |
Asset Description |
|
10004016 | M&E -TANK: ABV GRND STRAGE -REF -ALTAMONT CRUDE | |
10004027 | M&E -TANK: ABV GRND STRAGE -REF TANK -INTERNAL | |
10004051 | M&E -TANK: ABV GRND STRAGE -REF -UNLOADING PIPE | |
10003974 | M&E -TANK: ABV GRND STRAGE -REF -SECONDARY SEAL | |
10003978 | M&E -TANK: ABV GRND STRAGE -REF -HEIGHT EXTENSIN | |
10004463 | M&E-GARAGE, SERV TOOLS & EQPT-REF-OVERFLOW BASIN | |
10014057 | OMD LIFT STATION LEVEL TRANSMITTERS | |
10004061 | M&E -PUMP UNIT -REF POWER UNIT -TK FARM #3 | |
10003336 | M&E-TANK:ABOVE GROUND STRAGE-REF FOUNDATIONS | |
10003076 | UPGRADE J818 PUMP AT TANK 190 | |
10003990 | M&E -TANK: ABOVE GROUND STORAGE | |
10004371 | M&E -I.S.B.L.-INSTRUMENTS-REF -TF3 LIGHTNG U/G | |
10004081 | M&E -PUMP UNIT -REF POWER UNIT -6 PRODUCTS PL | |
10004070 | M&E -PUMP UNIT -REF POWER UNIT -P-751 8 PROD PL | |
10004084 | M&E -PUMP UNIT -REF POWER UNIT -P-751 8 PROD PL | |
10003987 | M&E -TANK: ABV GRND STRAGE -REF TANK -90A2965501 | |
10004009 | M&E -TANK: ABV GRND STRAGE -REF -JENSEN 605-1.5 | |
10004035 | M&E -TANK: ABV GRND STRAGE -REF -MODEL 308RSES30 | |
10004430 | M&E -I.S.B.L.-INSTRUMENTS-REF -OMD-TAS TERMNAL | |
10004350 | M&E -I.S.B.L. -LINES, PIPING -REF -TANK 246 | |
10003976 | M&E -TANK: ABV GRND STRAGE -REF -SEAL EXTENSION | |
10003991 | M&E -TANK: ABV GRND STRAGE -REF TANK -TANK LEVEL | |
10003983 | M&E -TANK: ABV GRND STRAGE -REF -PRIMARY SEALS | |
10004020 | M&E -TANK: ABV GRND STRAGE -REF TANK -CONE ROOF | |
10011641 | HONEYWELL BLENDING SYSTEM - COMPUTER HARDWARE | |
10003339 | M&E -TANK: ABOVE GROUND STORAGE | |
10004393 | M&E-I.S.B.L.-INSTRUMENTS-REF-BUTANE BLENDING | |
10004006 | M&E -TANK: ABV GRND STRAGE -REF -JENSEN 620-VA20 | |
10004240 | M&E-I.S.B.L.-LINES, PIPING-REF-6 & 8 PROD U/G | |
10004286 | M&E -I.S.B.L. -LINES, PIPING -REF -TF #2 | |
10004014 | M&E -TANK: ABV GRND STRAGE -REF TANK -TK 252 DIKE | |
10004065 | M&E -PUMP UNIT -REF POWER UNIT -TF BLENDER-1 | |
10004018 | M&E -TANK: ABV GRND STRAGE -REF TANK -TANK 243 | |
10003996 | M&E -TANK: ABOVE GROUND STORAGE | |
10004033 | M&E -TANK: ABV GRND STRAGE -REF TANK -VALVES | |
10004321 | M&E -I.S.B.L. -LINES, PIPING -REF -TANK 141 | |
10003975 | M&E -TANK: ABV GRND STRAGE -REF TANK -FOAM DAM | |
10003985 | M&E -TANK: ABV GRND STRAGE -REF -JENSEN F-605-5 | |
10003989 | M&E -TANK: ABV GRND STRAGE -REF -SECONDARY SEAL | |
10004050 | M&E -TANK: ABV GRND STRAGE -REF -STEAM HEAT TRAC |
Exhibit B Page 5
Salt Lake Tankage, Salt Lake Rail Rack and Trackage, Salt Lake Refinery Truck Racks
Asset No. |
Asset Description |
|
10003337 | M&E -TANK: ABOVE GROUND STORAGE | |
10003979 | M&E -TANK: ABV GRND STRAGE -REF TANK -DEA STORAGE | |
10004160 | M&E -LINES, ELECTRICAL LINES: -TF2 TANKS | |
10004336 | M&E-I.S.B.L.-LINES, PIPING-REF-T #190 JUMPOVER | |
10004085 | M&E -PUMP UNIT -REF POWER UNIT -TK FARM3#2 | |
10004337 | M&E -I.S.B.L. -LINES, PIPING -REF -TANK 325 | |
10003980 | M&E -TANK: ABV GRND STRAGE -REF -SECONDARY SEAL | |
10004002 | M&E -TANK: ABV GRND STRAGE -REF TANK -TANK BOTTOM | |
10003958 | M&E -TOWER -REF TOWER -LSDHF BLNDR TWR | |
10004045 | M&E -TANK: ABV GRND STRAGE -REF -INLET MANIFOLD | |
10004052 | M&E -TANK: ABV GRND STRAGE -REF -BUTANE BLANKET | |
10004402 | M&E -I.S.B.L.-INSTRUMENTS-REF -COMP. SAMPLER | |
10004115 | M&E-PROCESS UNIT COST CONST-AOC -OCTANE BLENDER | |
10012334 | TK-246 & TK-247 PIPING - ROUTED FOR ULSD #1 | |
10004326 | M&E-I.S.B.L.-LINES, PIPING-REF-T325 JP-4FILTER | |
10004415 | M&E -I.S.B.L.-INSTRUMENTS-REF-AVGAS BLENDING | |
10003992 | M&E -TANK: ABV GRND STRAGE -REF -PRIMARY/SE SEAL | |
10004001 | M&E -TANK: ABV GRND STRAGE -REF TANK -TANK BOTTOM | |
10004068 | M&E -PUMP UNIT -REF POWER UNIT -TF BLENDER-1 | |
10004334 | M&E-I.S.B.L.-LINES, PIPING-REF-T-325 JUMPOVER | |
10004120 | M&E -PROCESS UNIT COST CONST-TANK 309 | |
10004161 | M&E -LINES, ELECTRICAL LINES: -TF3 TK 309 PUMP | |
10003338 | M&E -TANK: ABOVE GROUND STORAGE | |
10004015 | M&E -TANK: ABV GRND STRAGE -REF TANK -TANK 243 | |
10004154 | M&E -LINES, ELECTRICAL LINES: -TF4 FLOOD LIGHT | |
10004323 | M&E -I.S.B.L. -LINES, PIPING -REF -TANK 309 | |
10004341 | M&E-I.S.B.L.-LINES, PIPING-REF-325TK CROSSOVER | |
10004022 | M&E -TANK: ABV GRND STRAGE -REF TANK -ULR SERVICE | |
10004330 | M&E-I.S.B.L.-LINES, PIPING-REF-T-325 JUMPOVER | |
10004345 | M&E-I.S.B.L.-LINES, PIPING-REF-WATER SUC TF4 | |
10003340 | M&E -TANK: ABOVE GROUND STORAGE | |
10003984 | M&E -TANK: ABOVE GROUND STORAGE | |
10004074 | M&E -PUMP UNIT -REF PUMP POWER UNIT-TK-206 | |
10003986 | M&E -TANK: ABOVE GROUND STORAGE | |
10004011 | M&E -TANK: ABV GRND STRAGE -REF TANK -INSTALLATION | |
10004039 | M&E -TANK: ABV GRND STRAGE -REF TANK -LOWER LEGS | |
10004086 | M&E -PUMP UNIT -REF POWER UNIT -TK FARM #2 | |
99001185 | TANK 212 TURNAROUND | |
10020133 | NEW PIPING FOR OLEFINS | |
10004347 | M&E-I.S.B.L.-LINES, PIPING-REF-156-188-268-322 |
Exhibit B Page 6
Salt Lake Tankage, Salt Lake Rail Rack and Trackage, Salt Lake Refinery Truck Racks
Asset No. |
Asset Description |
|
10002560 | SECONDARY BOTTOM & COATING - TANK # 158 | |
10023600 | TANK 245 ABOVE GROUND TANK | |
10020108 | J-928G - YELLOW WAX CHARGE PUMPS | |
10020109 | J-928H - YELLOW WAX CHARGE PUMPS | |
10020110 | J-928E - BLACK WAX CHARGE PUMPS | |
10020111 | J-928F - BLACK WAX CHARGE PUMPS | |
10020317 | J-878A BOOSTER PUMP | |
10004121 | M&E-PROCESS UNIT COST CONST-AOC -J809 PRESSUR SW | |
10004075 | M&E -PUMP UNIT -REF POWER UNIT -J823B 3HP | |
10004107 | M&E -PUMP UNIT -REF POWER UNIT -J892 PUMP | |
10005741 | J-813 & J813A MOTOR STARTERS | |
10004346 | M&E -I.S.B.L. -LINES, PIPING -REF -TF 2 & 3 | |
10002807 | PRIMARY & SECONDARY SEALS FOR TANK #298 | |
10017856 | SLC ETHANOL RATIO BLENDING PIPING & EQUIPMENT | |
10017855 | SLC ETHANOL RATIO BLENDING SKIDS | |
10016669 | ETHANOL RAIL UNLOADING RACK | |
10023825 | PIPING FOR SAFETY SHOWER -ETHANOL UNLDG RACK | |
99000880 | TANK 142 TURNAROUND IN 2014 | |
10004487 | M&E-GARAGE, SERV TOOLS & EQPT-REF-142 TK FIREWALL | |
10005749 | RELOCATE TK 155 OOS PRESSURE VENT | |
10005681 | M&E-PROCESS UNIT COST CONST-AOC -TF2 PIPING T245 | |
99000762 | TANK 291 YEAR 2013 TURNAROUND | |
99001737 | TANK 328 ABOVE GROUND STORAGE TANK | |
99001540 | TANK 330 TURNAROUND | |
99001540 | TANK 330 TURNAROUND | |
10020317 | J-878A BOOSTER PUMP | |
TBD | TANK 427D |
Exhibit B Page 7
Salt Lake Tankage, Salt Lake Rail Rack and Trackage, Salt Lake Refinery Truck Racks
EXHIBIT C
LARW Tankage and LARC Tankage
LARW Rail Rack and Trackage & LARC Rail Rack and Trackage
LARW LPG Truck Rack & LARC LPG Truck Rack
Asset No. |
Asset Description |
|
10013233 | Offsites - Buildings - 241 RP&S Control Room | |
10013238 | Offsites - Buildings - Blender In-Line | |
10013251 | Offsites - Blending | |
10013258 | Offsites - Onsite Piping | |
10013271 | Offsites - Pumps | |
10013281 | Offsites - Tankage - TK-000476 | |
10013303 | Offsites - Tankage - TK-007501 | |
10013304 | Offsites - Tankage - TK-011000 | |
10013305 | OFFSITES - TANKAGE - TK-011001 LCO | |
10013306 | Offsites - Tankage - TK-011002 | |
10013307 | OFFSITES - TANKAGE - TK-011003 DIESEL | |
10013308 | Offsites - Tankage - TK-011004 | |
10013309 | Tank - TK-013500 FIRE WATER | |
10013310 | TANK 013501 FIRE WATER | |
10013311 | Offsites - Tankage - TK-013502 | |
10013312 | Offsites - Tankage - TK-013503 | |
10013313 | Offsites - Tankage - TK-013504 | |
10013314 | Offsites - Tankage - TK-013505 | |
10013315 | OFFSITES - TANKAGE - TK-013506 JET FUEL | |
10013316 | Offsites - Tankage - TK-013507 | |
10013317 | OFFSITES - TANKAGE - TK-013508 AVGAS | |
10013318 | Offsites - Tankage - TK-013509 | |
10013319 | Offsites - Tankage - TK-013510 | |
10013320 | TANK 013511 BRINE WATER TANK | |
10013321 | Offsites - Tankage - TK-013512 | |
10013330 | Offsites - Tankage - TK-036001 | |
10013331 | OFFSITES - TANKAGE - TK-036002 JET A | |
10013332 | Offsites - Tankage - TK-076000 | |
10013333 | Offsites - Tankage - TK-080034 | |
10013334 | Offsites - Tankage - TK-080038 | |
10013335 | Offsites - Tankage - TK-080039 | |
10013336 | Offsites - Tankage - TK-080042 | |
10013338 | OFFSITES - TANKAGE - TK-080044 GASOLINE | |
10013339 | Offsites - Tankage - TK-080049 |
Exhibit C Page 1
LARW and LARC Tankage
LARW Rail Rack and Trackage & LARC Rail Rack and Trackage
LARW LPG Truck Rack & LARC LPG Truck Rack
Asset No. |
Asset Description |
|
10013340 | Offsites - Tankage - TK-080050 | |
10013341 | Offsites - Tankage - TK-080051 AZ-BOB | |
10013342 | Offsites - Tankage - TK-080055 | |
10013343 | OFFSITES - TANKAGE - TK-080062 NAPTHA | |
10013344 | OFFSITES - TANKAGE - TK-080063 HS CAT FEED | |
10013345 | Offsites - Tankage - TK-080064 | |
10013346 | Tank 080065 | |
10013347 | Offsites - Tankage - TK-080065 Resid | |
10013348 | Offsites - Tankage - TK-080066 | |
10013349 | Offsites - Tankage - TK-080067 | |
10013350 | Offsites - Tankage - TK-080069 | |
10013351 | Offsites - Tankage - TK-080070 AVJET A | |
10013352 | Offsites - Tankage - TK-080077 | |
10013353 | Offsites - Tankage - TK-080078 | |
10013354 | OFFSITES - TANKAGE - TK-080080 CRUDE | |
10013355 | Offsites - Tankage - TK-080081 | |
10013356 | Offsites - Tankage - TK-080083 | |
10013357 | Offsites - Tankage - TK-080084 SLOP | |
10013358 | Offsites - Tankage - TK-080085 | |
10013359 | Offsites - Tankage - TK-080087 | |
10013360 | Offsites - Tankage - TK-080089 | |
10013361 | Offsites - Tankage - TK-080090 | |
10013362 | Offsites - Tankage - TK-080091 | |
10013363 | Offsites - Tankage - TK-080209 | |
10013364 | OFFSITES - TANKAGE - TK-080210 GASOLINE | |
10013365 | Offsites - Tankage - TK-080211 | |
10013366 | Offsites - Tankage - TK-080212 | |
10013367 | OFFSITES - TANKAGE - TK-080213 NAPTHA | |
10013368 | Offsites - Tankage - TK-080214 Naptha | |
10013369 | Offsites - Tankage - TK-080215 | |
10013370 | Offsites - Tankage - TK-080217 - FCCU Hvy Naptha | |
10013371 | Offsites - Tankage - TK-080219 | |
10013372 | OFFSITES - TANKAGE - TK-080220 CARBOB | |
10013373 | OFFSITES - TANKAGE - TK-080221 REFORMER CHARGE | |
10013374 | Offsites - Tankage - TK-096000 | |
10013375 | Offsites - Tankage - TK-096059 | |
10013376 | Offsites - Tankage - TK-118066 | |
10013377 | Offsites - Tankage - TK-125002 | |
10013378 | Offsites - Tankage - TK-125003 | |
10013379 | OFFSITES - TANKAGE - TK-125004 HTU NAPTHA |
Exhibit C Page 2
LARW and LARC Tankage
LARW Rail Rack and Trackage & LARC Rail Rack and Trackage
LARW LPG Truck Rack & LARC LPG Truck Rack
Asset No. |
Asset Description |
|
10013384 | OFFSITES - TANKAGE - TK-020426 SOUR WATER | |
10013387 | Offsites - Vapor Recovery Unit | |
10013432 | RP&S: MOV FOR P-1692 | |
10013448 | GEN PLT, Gasoline Blendin | |
10013456 | P/L PIG LAUNCHER & RECEIVER - AT REFINERY | |
10013472 | TANK 7501 DOUBLE BOTTOM | |
10013473 | TANK 13505 DOUBLE BOTTOM | |
10013474 | TANK 80034 DOUBLE BOTTOM | |
10013475 | TK 80217 - DOUBLE TANK BOTTOM NAPHTHA | |
10013477 | TANK 80216 - ALUMINUM DOME | |
10013478 | TANK 96000 - ALUMINUM DOME | |
10013543 | TANK 80216 - ALUMINUM DOME REFORMATE | |
10013544 | TANK 7501 DOUBLE BOTTOM | |
10013545 | TANK 13505 DOUBLE BOTTOM CRU 2/3 LT. NAPHTNA | |
10013563 | TANK 80034 DOUBLE BOTTOM | |
10013564 | TK 80217 - DOUBLE TANK BOTTOM | |
10013567 | TANK 96000 - ALUMINUM DOME GASOLINE | |
10013608 | RPS Analyzers and Instrumentation | |
10013646 | 80084 SAAB TANK RADAR PRO GAUGE | |
10013647 | 80062 SAAB TANK RADAR PRO GAUGE | |
10013648 | 80085 SAAB TANK RADAR PRO GAUGE | |
10013649 | 80070 SAAB TANK RADAR PRO GAUGE | |
10013650 | 36002 SAAB TANK RADAR PRO GAUGE | |
10013651 | 80068 SAAB TANK RADAR PRO GAUGE | |
10013652 | 80058 REX LEVEL GAUGES | |
10013653 | 80080 SAAB TANK RADAR PRO GAUGE | |
10013654 | 80219 SAAB TANK RADAR PRO GAUGE | |
10013655 | 80081 SAAB TANK RADAR PRO GAUGE | |
10013656 | 80089 SAAB TANK RADAR PRO GAUGE | |
10013657 | 80063 SAAB TANK RADAR PRO GAUGE | |
10013658 | 80061 SAAB TANK RADAR PRO GAUGE | |
10013659 | 80067 SAAB TANK RADAR PRO GAUGE | |
10013660 | 7201 SAAB TANK RADAR PRO GAUGE | |
10013661 | 80083 SAAB TANK RADAR PRO GAUGE | |
10013662 | 80065 REX LEVEL GAUGES | |
10013663 | 80064 REX LEVEL GAUGES | |
10013664 | 80082 REX LEVEL GAUGES | |
10013665 | 7501 SAAB TANK RADAR PRO GAUGE | |
10013666 | 80079 SAAB TANK RADAR PRO GAUGE | |
10013667 | 80066 REX LEVEL GAUGES |
Exhibit C Page 3
LARW and LARC Tankage
LARW Rail Rack and Trackage & LARC Rail Rack and Trackage
LARW LPG Truck Rack & LARC LPG Truck Rack
Asset No. |
Asset Description |
|
10013671 | 80087 SAAB TANK RADAR PRO GAUGE | |
10013674 | 80084 SAAB TANK RADAR PRO GAUGE | |
10013675 | 80062 SAAB TANK RADAR PRO GAUGE | |
10013676 | 80085 SAAB TANK RADAR PRO GAUGE | |
10013677 | 80070 SAAB TANK RADAR PRO GAUGE | |
10013678 | 36002 SAAB TANK RADAR PRO GAUGE | |
10013679 | 80068 SAAB TANK RADAR PRO GAUGE | |
10013680 | 80058 REX LEVEL GAUGES | |
10013681 | 80080 SAAB TANK RADAR PRO GAUGE | |
10013682 | 80219 SAAB TANK RADAR PRO GAUGE | |
10013683 | 80081 SAAB TANK RADAR PRO GAUGE | |
10013684 | 80089 SAAB TANK RADAR PRO GAUGE | |
10013685 | 80063 SAAB TANK RADAR PRO GAUGE | |
10013686 | 80061 SAAB TANK RADAR PRO GAUGE | |
10013687 | 80067 SAAB TANK RADAR PRO GAUGE | |
10013688 | 7201 SAAB TANK RADAR PRO GAUGE | |
10013689 | 80083 SAAB TANK RADAR PRO GAUGE | |
10013690 | 80065 REX LEVEL GAUGES | |
10013691 | 80064 REX LEVEL GAUGES | |
10013692 | 80082 REX LEVEL GAUGES | |
10013693 | 7501 SAAB TANK RADAR PRO GAUGE | |
10013694 | 80066 REX LEVEL GAUGES | |
10013695 | 80087 SAAB TANK RADAR PRO GAUGE | |
10013817 | TANK 80090 DOUBLE BOTTOM | |
10013818 | TANK 80066 DOUBLE BOTTOM | |
10013819 | TANK 80049 DOUBLE BOTTOM | |
10013820 | TANK 96000 DOUBLE BOTTOM | |
10013880 | P-1691 CENTRIFUGAL PUMP - HORIZONTAL | |
10013927 | TRANSMIX 600 PIPING & 3 VALVE | |
10013928 | TRANSMIX TRANSMITTER (72-FT924) | |
10014112 | 72PV-0532 MINIMUM FLOW BYPASS | |
10014113 | 72FV-1302 FLOW CONTROL VALVE | |
10014114 | 72FT-1302 WEDGE METER/ TRANSMITTER | |
10014115 | 72FV-1303 FLOW CONTROL VALVE | |
10014116 | 72FT-1303 WEDGE METER/ TRANSMITTER | |
10014117 | 72PV-1304 MINIMUM FLOW BYPASS | |
10014118 | 72FV-1301 HVY CRUDE CONTROL VALVE (RP&S) | |
10014119 | 72FT-1301 WEDGE METER/TRANSMITTER | |
10014120 | 72FV-1306 FLOW CONTROL VALVE | |
10014121 | 72FT-1306 WEDGE METER/TRANSMITTER |
Exhibit C Page 4
LARW and LARC Tankage
LARW Rail Rack and Trackage & LARC Rail Rack and Trackage
LARW LPG Truck Rack & LARC LPG Truck Rack
Asset No. |
Asset Description |
|
10014132 | Offsites - Tankage - TK-080216 CRU HN | |
10014314 | TRANSMIX 600 PIPING & 3 VALVE | |
10014340 | TK-80090 -RP&S FLOATING ROOF STORAGE TANK FUEL OIL | |
10014341 | TK-76000 - RP&S DOUBLE BOTTOM INSTALLATION | |
10014348 | TK-80083 - RP&S FIXED ROOF STORAGE TANK - SLOP OIL | |
10014349 | RPS-2 ILB FTIR ANALYZER 72AIT613 | |
10014350 | RPS-2 ILB FTIR ANALYZER 72AIT614 | |
10014351 | RPS-2 ILB FTIR ANALYZERS PLC 72LCP612 | |
10014425 | TK-80211 GASOLINE DOUBLE BOTTOM | |
10014427 | TANK - 80069 SLOP | |
10014777 | FIRE FOAM PIPING FOR TANK 80212 | |
10014778 | FIRE FOAM PIPING FOR TANK 80216 | |
10014779 | FIRE FOAM PIPING FOR TANK 96000 | |
10014780 | TK-80068 | |
10014783 | TK-80071 CRUDE | |
10015027 | TANK 80075 | |
10015028 | MIXERS (ME-931 AND ME-932) FOR TANK 80075 | |
10015029 | SAMPLE PUMP P-3619 FOR TANK 80075 | |
10015030 | PIPING / ELECTRICAL - TANK 80075 | |
10015031 | INSTRUMENTATION AND AUTOMATION - TANK 80075 | |
10015032 | TANK 80079 CRUDE | |
10015033 | TANK 80079 MIXERS ME-919 AND ME-920 | |
10015034 | SAMPLE PUMP P-3583 FOR TANK 80079 | |
10015035 | TANK 80079 PIPING / ELECTRICAL | |
10015036 | TANK 80079 INSTRUMENTATION AND AUTOMATION | |
10015043 | TANK 80076 | |
10015044 | TANK 80076 SAMPLE PUMP P-3583 & MOTOR M-4572 | |
10015045 | TANK 80076 MIXERS & MOTORS ME-921/922, M-4568/4569 | |
10015046 | TANK 80076 PIPING / ELECTRICAL | |
10015047 | TANK 80076 AUTOMATIC GAUGING | |
10015255 | TANK 80058 | |
10015256 | TANK 80058 ELECTRICAL | |
10015257 | TK 80058 SAMPLE PUMP P-3617 MOTOR M-4598/4596/4597 | |
10015258 | TK 80058 PIPING | |
10015259 | TANK 80058 GAUGE INSTRUMENTATION AND AUTOMATION | |
10015260 | TANK 80214 ELECTRICAL | |
10015261 | TANK 80214 DOUBLE BOTTOM | |
10015262 | TANK 80214 PUMP P-3616 AND MOTOR M-4596 | |
10015263 | TANK 80214 PIPING | |
10015264 | TANK 80214 GAUGING INSTRUMENTATION AND AUTOMATION |
Exhibit C Page 5
LARW and LARC Tankage
LARW Rail Rack and Trackage & LARC Rail Rack and Trackage
LARW LPG Truck Rack & LARC LPG Truck Rack
Asset No. |
Asset Description |
|
10015804 | TANK 80216 DOUBLE BOTTOM | |
10015805 | TANK 80216 INSTRUMENTATION AND GAUGING | |
10015806 | TANK 80216 ELECTRICAL | |
10015807 | TANK 80216 SAMPLE PUMP P-3622 M-4609 | |
10015808 | TANK 80216 PIPING | |
10015959 | TANK 80045 WITH FLOATING ROOF | |
10015960 | TANK 80045 INSTRUMENTATION AND ELECTRICAL | |
10015961 | TANK 80045 MIXER ME-0935, MOTOR M-4606, | |
10015962 | TANK 80045 SAMPLE PUMP P-3621 AND MOTOR M-4608 | |
10015963 | TANK 80045 PIPING | |
10015964 | TANK 80045 AUTOMATIC GAUGING | |
10015978 | TANK 80033 DIESEL | |
10015979 | TANK 80033 INSTRUMENTATION AND GAUGING | |
10015980 | TANK 80033 ELECTRICAL | |
10015981 | TANK 80033 PIPING | |
10015982 | TANK 80033 SAMPLE PUMP | |
10015983 | TANK 80033 MIXER AND MOTOR | |
10016540 | TANK 80072 | |
10016541 | TANK 80072 SAMPLE PUMP MOTOR P-3620 M-4605 | |
10016542 | TANK 80072 MIXER ME-933 & MOTOR M-4603 | |
10016543 | TANK 80072 MIXER ME-934 & MOTOR M-4604 | |
10016544 | TANK 80072 ELECTRICAL | |
10016545 | TANK 80072 INSTRUMENTATION AND AUTOMATION | |
10016546 | TANK 80072 PIPING | |
10016548 | TANK 80061 | |
10016549 | TANK 80061 SAMPLE PUMP MOTOR P-3637 & MOTOR M-4626 | |
10016550 | TANK 80061 MIXER ME-940 & MOTOR M-4623 | |
10016551 | TANK 80061 ELECTRICAL | |
10016552 | TANK 80061 INSTRUMENTATION AND AUTOMATION | |
10016553 | TANK 80061 PIPING | |
10016577 | TANK 80037 | |
10016578 | TANK 80037 SAMPLE PUMP P-3657 MOTOR M-4646 | |
10016579 | MIXER ME-948 & MOTOR M-4647 | |
10016580 | TANK 80037 ELECTRICAL | |
10016581 | TANK 80037 INSTRUMENTATION AND AUTOMATION | |
10016582 | TANK 80037 PIPING | |
10016583 | TANK 80212 DOUBLE BOTTOM REPLACEMENT | |
10016584 | TANK 80212 ELECTRICAL | |
10016585 | TANK 80212 INSTRUMENTATION AND AUTOMATION | |
10016586 | TANK 80212 PIPING |
Exhibit C Page 6
LARW and LARC Tankage
LARW Rail Rack and Trackage & LARC Rail Rack and Trackage
LARW LPG Truck Rack & LARC LPG Truck Rack
Asset No. |
Asset Description |
|
10016632 | RAILROAD TRACKS RR-1175 | |
10016705 | TANK 80082 | |
10016706 | Tank 80082 SAMPLE PUMP P-3639 & MOTOR M-4628 | |
10016707 | Tank 80082 Piping | |
10016708 | Tank 80082 MIXER ME-942 & MOTOR M-4625 | |
10016709 | Tank 80082 MIXER ME-943 & MOTOR M-4630 | |
10016710 | Tank 80082 ELECTRICAL | |
10016711 | Tank 80082 INSTRUMENTATION AND AUTOMATION | |
10016721 | TANK 80042 RADAR GAUGES | |
10016723 | TANK 80044 RADAR GAUGES | |
10016724 | TANK 80045 RADAR GAUGES | |
10016725 | TANK 80049 RADAR GAUGES | |
10016726 | TANK 80050 RADAR GAUGES | |
10016727 | TANK 80051 RADAR GAUGES | |
10016728 | TANK 80055 RADAR GAUGES | |
10016729 | TANK 80057 RADAR GAUGES | |
10016730 | TANK 80209 RADAR GAUGES | |
10016731 | TANK 80210 RADAR GAUGES | |
10016732 | TANK 80211 RADAR GAUGES | |
10016733 | TANK 80212 RADAR GAUGES | |
10016734 | TANK 80213 RADAR GAUGES | |
10016735 | TANK 80214 RADAR GAUGES | |
10016736 | TANK 80215 RADAR GAUGES | |
10016737 | TANK 80216 RADAR GAUGES | |
10016738 | TANK 80217 RADAR GAUGES | |
10016739 | TANK 80220 RADAR GAUGES | |
10016740 | TANK 80221 RADAR GAUGES | |
10016741 | TANK 96000 RADAR GAUGES | |
10016742 | TANK 96059 RADAR GAUGES | |
10016743 | TANK 125002 RADAR GAUGES | |
10016744 | TANK 125003 RADAR GAUGES | |
10016745 | TANK 125004 RADAR GAUGES | |
10016922 | TANK 80057 | |
10016923 | TK 80057 SAMPLE PUMP P-3638 & M-4627 | |
10016924 | TK 80057 MIXER ME-941 & MOTOR M-4624 | |
10016925 | TANK 80057 ELECTRICAL | |
10016926 | TANK 80057 INSTRUMENTATION AND AUTOMATION | |
10016927 | TANK 80057 PIPING | |
10017129 | RP&S UGH PIPING | |
10017164 | TANK 80033 FOAM PIPING |
Exhibit C Page 7
LARW and LARC Tankage
LARW Rail Rack and Trackage & LARC Rail Rack and Trackage
LARW LPG Truck Rack & LARC LPG Truck Rack
Asset No. |
Asset Description |
|
10017668 | FOAM PIPING TK 80075 | |
10017669 | FOAM PIPING TK 80071 | |
10017670 | TK ROOF 13505 | |
10017672 | TK ROOF 80066 | |
10017673 | FOAM PIPING TK 80090 | |
10017674 | FOAM PIPING TK 80090 ADDTL COST | |
10017675 | FOAM PIPING TK 13505 | |
10017676 | FOAM PIPING TK 80066 | |
10017718 | FOAM PIPING TK 80076 | |
10017915 | RP&S FIREWATER PIPING - PH 2-3 | |
10018771 | RP&S WATER DRAW LINES NTF | |
10019386 | TK 80219 SLUDGE IMPROVEMENTS-PIPING | |
10019394 | LINE-51 PRESSURE RELIEF VALVE TAG# R-7129 | |
10019395 | LINE-51 PRESSURE RELIEF VALVE TAG# R-7130 | |
10019396 | LINE-51 PIPING | |
10019400 | RP&S TK 80219 DOUBLE BOTTOM | |
10019510 | LAR-W TANK FARM-SYSTEM 1 PIPING | |
10019511 | LAR-W TANK FARM-SYSTEM 3 PIPING | |
10019512 | LAR-W TANK FARM-SYSTEM 4 PIPING | |
10019513 | LAR-W TANK FARM-SYSTEM 5 PIPING | |
10019514 | LAR-W TANK FARM-SYSTEM 6 PIPING | |
10019515 | LAR-W TANK FARM-SYSTEM 7 PIPING | |
10019991 | INLINE BLENDING RVP ANALYZER ELEMENT 72-AE-0658A | |
10019992 | INLINE BLENDING RVP ANALYZER ELEMENT 72-AE-0658B | |
10019993 | INLINE BLENDING RVP ANALYZER TRANSMITTER 72-AT-065 | |
10019994 | INLINE BLENDING RVP ANALYZER SAMPLE CON 72-AU-0658 | |
10020138 | SLUDGE PIPING REROUTE FROM TK-7501 & TK-7201 | |
10020144 | 3 10 CONNECT PIPELINE CARSON TERMINAL 2 LNS 28/32 | |
10020323 | 8,200 PIPELINE EXT OF 71R/79R @ VAULT 252 TO LARW | |
10021447 | E51 7130 RV RE-ROUTE TO SLOPS- 42 FT-6 INCH PIPE | |
10021659 | TANK 776 TRANSMITTERS -TANK GAUGING-PHASE III | |
10021660 | TANK 777 TRANSMITTERS -TANK GAUGING-PHASE III | |
10021661 | TANK 778 TRANSMITTERS -TANK GAUGING-PHASE III | |
10021662 | TANK 779 TRANSMITTERS -TANK GAUGING-PHASE III | |
10021663 | TANK 780 TRANSMITTERS -TANK GAUGING-PHASE III | |
10021664 | TANK 1501 TRANSMITTERS -TANK GAUGING-PHASE III | |
10021665 | TANK 1502 TRANSMITTERS -TANK GAUGING-PHASE III | |
10021666 | TANK 1503 TRANSMITTERS -TANK GAUGING-PHASE III | |
10021667 | TANK 6000 TRANSMITTERS -TANK GAUGING-PHASE III | |
10021668 | TANK 6001 TRANSMITTERS -TANK GAUGING-PHASE III |
Exhibit C Page 8
LARW and LARC Tankage
LARW Rail Rack and Trackage & LARC Rail Rack and Trackage
LARW LPG Truck Rack & LARC LPG Truck Rack
Asset No. |
Asset Description |
|
10022407 | METHANOL INJECTION FOUNDATION | |
10022420 | HCU TO TK 80035 6 LINE - 110 FT | |
10022423 | FPT BTTMS TO ULSD- CNTRL VALVE TO TK 36002 -FV 208 | |
10022424 | FPT BTTMS TO ULSD - CNTRL VALVE TO TK 80070 - PV 2 | |
10022425 | FPT BOTTOMS TO ULSD - PIPING 40 FT | |
10022598 | LARW - GASOLINE COMP. TK FRM PIPE - 100 FT, 10 INC | |
10022663 | PROPANE LOADOUT REC - VPR LINE 560 FT - AVRG 3 INC | |
10022664 | PROPANE LOADOUT REC - 3 CV TO FLARE (74-FV525) | |
10022665 | PROPANE LOADOUT REC - 2 CV TO PRPN BULLET (74-FV5 | |
10022666 | PROPANE LOADOUT REC - MERCAPTAN CONV. BED (V-3634) | |
10022667 | PROPANE LOADOUT REC. ELECT & INSTRUMENTATION | |
10022677 | DISTILLATE TIE - T16 (LBT) PIPING - 50FT, 12 INCH | |
10022778 | RP&S ADDTL WATER DRAW LINES | |
10023010 | RP&S ADDTL WATER DRAW LINES (FINAL PHASE) | |
10023311 | TANK 80092 | |
10023653 | OFFSITES - TANKAGE - TK-080071-origin# 100042927-1 | |
10023654 | Offsites - Tankage - TK-080075-origin# 100042931-1 | |
10023655 | OFFSITES - TANKAGE - TK-080079-origin# 100042935-1 | |
10023656 | 80079 SAAB TANK RADAR PRO GAUG-origin# 100043910-1 | |
10023728 | PACIFIC PIPELINE - PLC-PNL-1 | |
10023729 | PACIFIC PIPELINE - RIO-PNL-1 | |
10023730 | PACIFIC PIPELINE - RIO-PNL-2 | |
10023802 | TANK 80036 | |
10023856 | TANK 125001 | |
30000280 | TANK 80039 REBUILD | |
30000391 | TANK 80065 REBUILD | |
30000396 | TANK 80081 REBUILD | |
30000404 | TANK 80038 REBUILD | |
30000463 | Piping | |
30001283 | TANK 125001 REBUILD | |
30001292 | TANK 80036 REBUILD | |
30003929 | TANK 80060 REBUILD | |
95000478 | TANK 80218 1ST & 2ND SHELL COURSE | |
99000507 | TANK 80221 DOUBLE BOTTOM REPLACEMENT | |
99001074 | TANK 125000 FOAM CHAMBERS AND PIPING | |
99001075 | TANK 125000 REBUILD | |
99001076 | TANK 125000 INSTRUMENTATION AND ELECTRICAL | |
99001077 | TANK 125000 PIPING | |
99001078 | TANK 125000 SAMPLE STATIONS | |
99001358 | TANK 80035 |
Exhibit C Page 9
LARW and LARC Tankage
LARW Rail Rack and Trackage & LARC Rail Rack and Trackage
LARW LPG Truck Rack & LARC LPG Truck Rack
Asset No. |
Asset Description |
|
99000595 | TANK 80218 ROOF REPLACEMENT | |
99000596 | TANK 80218 INSTRUMENTATION AND GAUGING | |
10013383 | OFFSITES - TANKAGE - TK-080218 WATER | |
10013996 | Offsites - Tankage - TK-007201 | |
10016513 | TRUCK RACK FLARE HEADER PIPING | |
10016514 | TRUCK RACK FLARE HEADER FOUNDATION AND SUPPORT | |
10016515 | TRUCK RACK RELIEF VALVE R-6875 | |
10016516 | TRUCK RACK RELIEF VALVER-6876 | |
10016517 | TRUCK RACK RELIEF VALVER-6877 | |
10016518 | TRUCK RACK RELIEF VALVER-6878 | |
10016519 | TRUCK RACK RELIEF VALVER-6879 | |
10016520 | TRUCK RACK RELIEF VALVER-6705 | |
10016521 | TRUCK RACK RELIEF VALVER-6706 | |
10016522 | TRUCK RACK FH FIREPROOFING | |
10016523 | TRUCK RACK FH INSTRUMENTATION | |
10017119 | LPG TRUCK LOADING PIPING & VALVES PH1 | |
10017209 | LAR TKRK FLOW LOOP 02F106 | |
10017210 | LAR TKRK FLOW LOOP 74F0522 | |
10020598 | PROPANE RACK INSTRUMENTATION UPGRADES | |
10021646 | RP&S-BUTANE TRUCK RCK PIPING - 150, 8 | |
10021647 | RP&S-BUTANE TRUCK RCK PIPING - 350, 6 | |
10021648 | RP&S-BUTANE TRUCK RCK PIPING - 150 - 4 | |
10021649 | RP&S-BUTANE TRUCK RCK PIPING - 240 - 2 | |
10022899 | RP&S-PROPANE TRUCK RCK PIPING - 50, 1 | |
10022900 | RP&S-PROPANE TRUCK RCK PIPING -100, 10 | |
10022901 | RP&S-PROPANE TRUCK RCK PIPING - 100, 6 | |
10022902 | RP&S-PROPANE TRUCK RCK PIPING - 100, 3 | |
10022903 | RP&S-PROPANE TRUCK RCK PIPING -150, 4 | |
10022904 | RP&S-PROPANE TRUCK RCK -FLARE PIPING - 200, 2 | |
10022905 | RP&S-PROPANE EQUALIZING LINE- 200, 2 | |
10012677 | RAILROAD UNDERPASS CATHODIC PROTECTION ANODE BEDS | |
10012663 | P/L PIG LAUNCHER & RECEIVER - AT REFINERY | |
10013262 | In Line Blend Analyzers & Instrumentation | |
10018911 | CUSTODY TRANSFER METER TAG# 72FT-111 | |
10018912 | TRANSMIX METER TAG# 72 FE-112 | |
10018913 | TRANSMIX METER TAG# 72 FE-113 | |
10018914 | TRANSMIX CUSTODY METER ELECTRICAL | |
10018915 | TRANSMIX VALVE TAG# 72 FV-112 | |
10018916 | TRANSMIX VALVE TAG# 72 FV-113 | |
30000174 | Tank Gauges PH III |
Exhibit C Page 10
LARW and LARC Tankage
LARW Rail Rack and Trackage & LARC Rail Rack and Trackage
LARW LPG Truck Rack & LARC LPG Truck Rack
Asset No. |
Asset Description |
|
30000177 | RAIL CAR FALL PROTECTION | |
30000308 | LARW NW Tank Farm 5B Firewater Piping | |
30000335 | 70 Series Butane Sphere Level Gauges | |
30001335 | LARW NW Tank Farm 5A Firewater Piping | |
10018873 | LOADING RACKS | |
10018829 | TK 0014 MTBE SO TK FIELD 3N/8W | |
10018831 | TK 0959 FCC FEED E. OF #9 C.T. 22N/1W | |
10018834 | TK 0061 COLD SOUR GAS OIL | |
10018835 | TK 0062 REFORMATE | |
10018836 | TK 0063 REFORMATE | |
10018837 | TK 0773 HYDRO GO FD ASPH. BLENDG. 9N/4E | |
10018840 | TK 0064 ALKYLATE | |
10018841 | TK 0031 MTBE UNF JP-4 SO TK FIELD 8N/4W | |
10018864 | TANKS < 4,000 BBLs (COUNT: 63) | |
10019290 | INTERMEDIATE STOVE OIL FLEX | |
10020609 | TK-73 PRESSURE TRANSMITTER | |
10020610 | TK-76 PRESSURE TRANSMITTER | |
10023767 | TANK 62 ACTUATOR - 75-HV-718 | |
10023768 | TANK 63 ACTUATOR -75-HV-719 | |
10018838 | TK 0016 ANS CRUDE N. SLOPE S. TK FIELD 3N/10W | |
10018839 | TK 0017 ANS CRUDE N. SLOPE S. TK FIELD 3N/11W | |
10018846 | 1 CRUDE TK 0190 SLOP OIL UN TOLUENE 3N/2E | |
30001382 | Other Machinery & Equipment | |
95000479 | TANK 61 FLOOR | |
10019475 | SPHERE 78 FIRE DELUGE SYSTEM | |
10021279 | TK-FARM PROGRAMMABLE LOGIC CONTROLLER 75-PLC-9333 | |
10021534 | TK 16 - CRUDE FILL LINE (12-206) | |
10021535 | TK 16 - ALT FILL LINE (8-152) | |
10021536 | TK 16 - SUCTION LINE (12-161) | |
10021537 | TK 17 - CRUDE FILL LINE (12-168) | |
10021538 | TK 17 - ALT FILL LINE (8-173) | |
10021539 | TK 17 - SUCTION LINE (12-185) | |
10022613 | #1 TRTR TO PUMP SLAB PIPING - 200 FT - AVG 6 INCH | |
10047918 | JET FUEL PIPING LINE 103 |
Exhibit C Page 11
LARW and LARC Tankage
LARW Rail Rack and Trackage & LARC Rail Rack and Trackage
LARW LPG Truck Rack & LARC LPG Truck Rack
EXHIBIT E
Mesquite Truck Station
Asset No. |
Asset Description |
|
L000000430 |
Mesquite Station | |
L000000431 |
Mesquite Tank#7112 | |
L000000432 |
Mesquite Skid #7118 | |
L000000433 |
Mesquite Skid #7128 | |
L000000434 |
Mesquite Skid #7138 | |
L000000435 |
Mesquite Skid #7148 | |
L000000575 |
Mesquite Station Office Trailer | |
L000000617 |
Mesquite Station Ladders & Platforms |
Exhibit E Page 1
Mesquite Truck Station
EXHIBIT F
Yucca Truck Station
Asset No. |
Asset Description |
|
L000000460 |
Yucca Tank#7212 | |
L000000461 |
Yucca Skid #7231 | |
L000000462 |
Yucca Skid #7232 | |
L000000463 |
Yucca Skid #7233 | |
L000000464 |
Yucca Skid #7234 | |
L000000570 |
Yucca Station Office Trailer | |
L000000616 |
Yucca Station Ladders & Platforms | |
L000000459 |
Yucca Station | |
L000000614 |
T Station Ladders & Platforms | |
L000000615 |
Pecan Station Ladders & Platforms |
Exhibit F Page 1
Yucca Truck Station
EXHIBIT G
Mason East Station
Asset No. |
Asset Description |
|
L000000438 |
Mason Lact Unit #1 | |
L000000439 |
Mason Lact Unit #2 | |
L000000440 |
Mason Lact Unit #3 | |
L000000441 |
Mason Lact Unit #4 | |
L000000442 |
Mason Lact Unit #5 | |
L000000426 |
Mason Tank#3111 | |
L000000457 |
Mason Tank#3112 | |
L000000612 |
Mason Station Ladders & Plats | |
L000000458 |
Mason Station |
Exhibit G Page 1
Mason East Station
EXHIBIT H
Wink Station
Asset No. |
Asset Description
|
|
L000000386 |
JackRabbit Tank #3513 | |
L000000387 |
JackRabbit Tank #3514 | |
L000000425 |
JackRabitt Tank#3512 | |
L000000443 |
JackRabitt Tank#3511 | |
L000000613 |
Jackrabbit Station Ladders & Plats | |
L000000380 |
JackRabbit Lact Unit#1 | |
L000000381 |
JackRabbit Lact Unit#2 | |
L000000382 |
JackRabbit Lact Unit#3 | |
L000000383 |
JackRabbit Lact Unit#4 | |
L000000384 |
JackRabbit Lact Unit#5 | |
L000000385 |
JackRabbit Station | |
L000000304 |
Plains Connection at JackRabbit | |
L000000637 |
KM#1 Pipeline System | |
L000000568 |
KM#2 Meter Skid | |
L000000569 |
KM#2 Pipeline System | |
L000000411 |
M12MC - 7 Stg pmp & motor | |
L000000412 |
M12MC - 7 Stg pmp & motor | |
L000000413 |
M8MC - 16 Stg pmp & motor | |
L000000414 |
M8MC - 16 Stg pmp & motor | |
L000000415 |
M8MC - 14 Stg pmp & motor | |
L000000416 |
M8MC - 14 Stg pmp & motor | |
L000000417 |
M8MC - 14 Stg pmp & motor | |
L000000418 |
H14LC - 6 Stg pmp & motor | |
L000000419 |
H14LC - 6 Stg pmp & motor | |
L000000420 |
M10LC - 11 Stg pmp & motor | |
L000000421 |
M10LC - 11 Stg pmp & motor | |
L000000422 |
M10LC - 11 Stg pmp & motor | |
L000000423 |
M10HC - 6 Stg pmp & motor | |
L000000424 |
M10HC - 6 Stg pmp & motor | |
L000000547 |
Software Unity Update Jackrabbit | |
L000000618 |
Minivap-VPXpert Vapor Tester | |
I000000042 |
Dodge Vin#3C6UR5HJ8FG674040 | |
I000000048 |
Dodge Vin#3C6UR5HJ3FG632519 | |
I000000057 |
Ram 2500 Crew Cab 4X4 | |
I000000084 |
Ram 1500 Crew Cab 4X4 | |
I000000086 |
Ram 1500 ST Crew Cab 4X4 | |
I000000087 |
Ram 1500 ST Crew Cab 4X4 | |
I000000101 |
Ram 1500 ST Crew Cab 4X4 | |
I000000103 |
Kubota L3940 |
Exhibit H Page 1
Wink Station
EXHIBIT I
Jal NGL Storage Facility
Asset No. |
Asset Description |
|
23146 |
BUILDINGS - JAL NEW MEXICO (mobile or otherwise) | |
23147 |
PROCESSING UNIT - JAL NM. | |
23148 |
TANKS - JAL NEW MEXICO | |
23149 |
RAIL TRACK - JAL NEW MEXICO | |
23150 |
TRUCK RACK - JAL NEW MEXICO | |
24468 |
BACKHOE / JAL | |
25163 |
North Brine Water Line Upgrade | |
26321 |
Air Compressor & Piping | |
L000000249 |
Jal Railroad Track #710 & #711 | |
L000000429 |
Jal Storage Wells 3 & 4 | |
L000000486 |
20 Jal Track |
Exhibit I Page 1
Jal NGL Storage Facility
EXHIBIT J
Wingate Terminal
Asset No. |
Asset Description |
|
L000000068 |
Normal Butane Rail Pump | |
L000000069 |
Normal Butane Rail Pump | |
L000000070 |
Iso-Butane Pipeline Pump | |
L000000072 |
Fire Water Pump House | |
L000000073 |
Control Room | |
L000000074 |
Boiler House | |
L000000075 |
Warehouse | |
L000000076 |
New Front Office | |
L000000077 |
IE Shop | |
L000000078 |
Welding Shop | |
L000000079 |
Rail Rack | |
L000000080 |
Owned Rail - 20000 LN SQ FT | |
L000000081 |
Normal Butane Storage Sphere | |
L000000082 |
Normal Butane Storage Sphere | |
L000000083 |
Gasoline Storage Sphere | |
L000000084 |
Gasoline Storage Sphere | |
L000000085 |
Gasoline Storage Sphere | |
L000000086 |
Gasoline Storate Sphere | |
L000000087 |
Gasoline Storage Sphere | |
L000000088 |
ISO Butane Tank | |
L000000089 |
ISO Butane Tank | |
L000000090 |
Propane Tank | |
L000000091 |
Propane Tank | |
L000000092 |
Propane Storage Tank | |
L000000093 |
Normal Butane Tank | |
L000000094 |
Gasoline Vent KO Drum | |
L000000095 |
Re-Run | |
L000000105 |
Vin#1FT7W2ZB67BEC97445 | |
L000000308 |
Caterpillar Generator | |
L000000427 |
Backhoe Loader | |
L000000428 |
2012 Xtreme Telehandler Forklift | |
TBD |
Flare | |
TBD |
Water pipeline | |
TBD |
Off site water tanks |
Exhibit J Page 1
Wingate Terminal
EXHIBIT L
Bobcat Pipeline
Asset No. |
Asset Description |
|
L000000270 |
Pipeline Systems - 20 yr (GAAP) | |
L000000391 |
LCG Booster Mason Pump #1 | |
L000000392 |
LCG Booster Mason Pump #2 |
Exhibit L Page 1
Bobcat Pipeline
EXHIBIT N
Aranco Pipeline
Asset No. |
Asset Description |
|
TBD |
Segment of 8 Aranco pipeline between Cottage Grove tank farm and Enterprise station at Flint Hills Pine Bend Refinery |
Exhibit N Page 1
Aranco Pipeline
EXHIBIT O
Permitted Liens
1. Liens for taxes or assessments and similar charges, which either are (a) not due and payable as of the Effective Time, or (b) being contested in good faith by appropriate proceedings, and adequate reserves have been established on the applicable Andeavor Partys books with respect thereto.
2. Mechanics, materialmens or contractors liens or encumbrances or any similar statutory lien or restriction for amounts not yet due and payable, or that are being contested in good faith by appropriate proceedings, and adequate reserves have been established on the applicable Andeavor Partys books with respect thereto.
3. Zoning, entitlement, building and other land use regulations imposed by governmental agencies having jurisdiction over any real property which are not violated by the current use and operation thereof.
4. Covenants, conditions, restrictions, easements and other similar matters of public record affecting title to any real property which are not violated by the current use and operation thereof.
5. The terms and provisions of all leases, contracts, easements, licenses, and other agreements or instruments that are part of the Assets or that are applicable to the Assets.
6. Liens in respect of any Assets imposed by applicable laws, which were incurred in the ordinary course of business and do not secure indebtedness for borrowed money, such as carriers, warehousemens, and landlords liens and other similar liens arising in the ordinary course of business and that secure amounts not yet due and payable.
7. Prior to the Effective Time only, any liens to be released as of the Effective Time.
8. Minor defects, exceptions or irregularities in title to any Assets which do not materially impair the current use or value of the Assets subject thereto.
9. Such facts of which the Logistics Parties have actual notice.
Exhibit O Page 1
Excluded Assets and Liabilities
EXHIBIT P
Excluded Assets and Liabilities
Mandan Refinery
Asset Description
High voltage equipment, transformers and feeders up to the disconnect at the switch rack dedicated to assets owned by the Logistics Parties
ResCar train car repair facility
Salt Lake Refinery
Asset Description
High voltage equipment, transformers and feeders up to the disconnect at the switch rack dedicated to assets owned by the Logistics Parties
Main fire water piping running along the perimeter of the tank farm and outside of the tank farm boundary
Any storm or wastewater piping inside the boundary of the tank farm
LARW Refinery Unit and LARC Refinery Unit
Asset Description
High voltage equipment and feeders remains the responsibility of the refinery up to the disconnect at the switch rack dedicated to assets owned by the Logistics Parties
Main 210lb steam line to/from the LARW Refinery Unit and the sulfur recovery plant (SRP)
Stripped pipelines to/from LARW Refinery Unit and the SRP
Fuel gas pipeline to/from LARW Refinery Unit and the SRP
Spare pipeline to/from LARW Refinery Unit and the SRP
Cross plant DEA
Cross plant flare
Cross plant LPG/H2/fuel gas system
Cross plant sour water systems
Cross plant vapor recovery systems unless equipment if fitted on tanks
Cross plant slop systems
Blended effluent pipeline from LCOD/HCOD to tank 80043
Wastewater separators and ponds
SRP blow down line from the SRP to ditch at tank-80216
Communication trunks and utility piping to/from the SRP and the refinery
Wingate Terminal
Asset Description
Fractionation plant with associated vessels and piping
Exhibit P Page 1
Excluded Assets and Liabilities
SCHEDULE A
Real Property Interests
I. |
List of Real Property Interests: |
The real property or real property interests on, through or under which the following assets are situated, and/or the other real property interests related to or held in connection with the ownership and operation of the applicable asset, including without limitation, and to the extent applicable in each case, fee property interests, leases, licenses, easements, rights-of-way and permits: (i) Mesquite Truck Station; (ii) Yucca Truck Station; (iii) Mason East Station; (iv) Wink Station; (v) Jal NGL Storage Facility; (vi) Wingate Terminal; (vii) Clearbrook Tankage; (viii) Bobcat Pipeline; (ix) Benny Pipeline; and (x) Aranco Pipeline.
II. |
In order give effect to the conveyance of certain interests in the TRMC Real Property and the Real Property Interests, the various Andeavor Parties and Logistics Parties agree to enter into the following documents (collectively, the Real Property Conveyance Documents ): |
Mandan Refinery :
(1) Ground Lease among the Operating Company and TRMC with respect to the Mandan Refinery.
Salt Lake Refinery :
(2) Ground Lease among the Operating Company and TRMC with respect to the Salt Lake Refinery.
(3) Assignment of existing right-of-way documents with respect to the Salt Lake Refinery 4 Pipelines partially located underneath a public road.
LARC/LARW Refinery Units/LA Refinery Interconnecting Pipeline :
(4) License Agreement among the Operating Company, TSPC and TRMC with respect to the LARC and LARW Refinery Units and the LA Refinery Interconnecting Pipeline.
Schedule A Page 1
Real Property Interests
Bobcat Pipeline :
(5) Conveyance, Bill of Sale, Assignment and Assumption from WRS to WRP for Bobcat Pipeline to be recorded in Winkler County, Texas.
(6) Conveyance, Bill of Sale, Assignment and Assumption from WRS to WRP for Bobcat Pipeline to be recorded in Loving County, Texas.
Wink Station :
(7) Assignment and Assumption of Lease between WRS and WRP with respect to Real Property Interests underlying the Wink Station.
Jal NGL Storage Facility :
(8) Deed transfer from WRCL to WRT of the Real Property Interests underlying the Jal NGL Storage Facility (including quitclaim of idle 5000 products pipeline).
(9) Assignment and Assumption Agreement between WRCL and WRT with respect to the Leases and other Agreements underlying the Jal NGL Storage Facility.
Mason East Station :
(10) Deed transfer from WRS to WRP with respect to Real Property Interests underlying the Mason East Station.
Mesquite Truck Station :
(11) Assignment and Assumption of Business Lease between WRS and WRP with respect to Real Property Interests underlying the Mesquite Truck Station.
Wingate Terminal :
(12) Deed transfer from WRS to WRT with respect to Real Property Interests underlying the Wingate Terminal.
(13) License Agreement between WRT and WRS with respect to use of the fractionation facility at the Wingate Terminal by WRS.
(14) License Agreement for right-of-way between WRS and WRT for use of certain water assets located on adjacent land used for Wingate Terminal.
Schedule A Page 2
Real Property Interests
Aranco Pipeline :
(15) Conveyance, Bill of Sale, Assignment and Assumption from WRP to the Operating Company for Aranco Pipeline to be recorded in Washington County, Minnesota.
(16) Conveyance, Bill of Sale, Assignment and Assumption from WRP to the Operating Company for Aranco Pipeline to be recorded in Dakota County, Minnesota.
Clearbrook Tankage :
(17) Deed transfer from WRS to the Operating Company of the Real Property Interests underlying the Clearbrook Tankage.
(18) Conveyance, Bill of Sale, Assignment and Assumption from WRS to the Operating Company.
Benny Pipeline :
(19) Conveyance, Bill of Sale, Assignment and Assumption from WRS to WRP for Benny Pipeline to be recorded in Loving County, Texas.
(20) Conveyance, Bill of Sale, Assignment and Assumption from WRS to WRP for Benny Pipeline to be recorded in Lea County, New Mexico.
Schedule A Page 3
Real Property Interests
SCHEDULE B
Assigned Contracts
Assignor |
Assignee |
Contract 1 (Effective Date) |
||
Western Refining Southwest, Inc. | Tesoro Logistics Operations LLC | Interconnection Agreement (January 6, 2017) | ||
Western Refining Southwest, Inc. | Tesoro Logistics Operations LLC | Common Facilities Ownership Agreement (January 6, 2017) | ||
Western Refining Southwest, Inc. | Tesoro Logistics Operations LLC | Services Agreement (January 6, 2017) | ||
Tesoro Refining & Marketing Company LLC | Tesoro Logistics Operations LLC | Locomotive Lease Agreement (July 17, 2015) | ||
Tesoro Great Plains Holdings Company | Tesoro Logistics Operations LLC | Industry Track Agreement (December 19, 2012) | ||
Tesoro Refining & Marketing Company LLC | Tesoro Logistics Operations LLC | Lease of Track (November 13, 2013) | ||
Tesoro Refining & Marketing Company LLC | Tesoro Logistics Operations LLC | Industry Track Agreement (November 13, 2013) | ||
Tesoro Refining & Marketing Company, LLC | Tesoro Logistics Operations LLC | General Agreement No. MA-8192-TSO-2011 (February 1, 2012) | ||
Western Refining Southwest, Inc. | Western Refining Terminals, LLC | Rail Services Agreement (August 1, 2015) | ||
Western Refining Southwest, Inc. | Western Refining Terminals, LLC | Agreement for Services Form AN1 (August 30, 2010) | ||
Western Refining Southwest, Inc. | Western Refining Terminals, LLC | Industry Track Agreement (August 17, 2015) | ||
Western Refining Southwest, Inc. | Western Refining Terminals, LLC | Lease for Land and Track (August 17, 2015) |
1 |
Note : Each listed contract includes the named contract and each amendment thereto. |
Schedule B Page 1
Assigned Contracts
Assignor |
Assignee |
Contract (Effective Date) |
||
Western Refining Southwest, Inc. | Western Refining Pipeline, LLC | Truck Unloading and Access Agreement (October 3, 2016) | ||
Western Refining Southwest, Inc. | Western Refining Pipeline, LLC | Truck Unloading and Access Agreement (January 3, 2017) | ||
Western Refining Southwest, Inc. | Western Refining Pipeline, LLC | Truck Unloading and Access Agreement (July 26, 2016) | ||
Western Refining Southwest, Inc. | Western Refining Pipeline, LLC | Truck Unloading and Access Agreement (July 2016) | ||
Western Refining Southwest, Inc. | Western Refining Pipeline, LLC | Truck Unloading and Access Agreement (March 27, 2017) | ||
Western Refining Southwest, Inc. | Western Refining Pipeline, LLC | Truck Unloading and Access Agreement (February 9, 2017) | ||
Western Refining Southwest, Inc. | Western Refining Pipeline, LLC | Truck Unloading and Access Agreement (June 2017) | ||
Western Refining Southwest, Inc. | Western Refining Pipeline, LLC | Truck Unloading and Access Agreement (Undated) | ||
Western Refining Southwest, Inc. | Western Refining Pipeline, LLC | Truck Unloading and Access Agreement (July 25, 2016) | ||
Western Refining Southwest, Inc. | Western Refining Pipeline, LLC | Truck Unloading and Access Agreement (August 12, 2016) | ||
Western Refining Southwest, Inc. | Western Refining Pipeline, LLC | Truck Unloading and Access Agreement (December 2016) | ||
Western Refining Southwest, Inc. | Western Refining Pipeline, LLC | Truck Unloading and Access Agreement (August 1, 2016) | ||
Western Refining Southwest, Inc. | Western Refining Pipeline, LLC | Truck Unloading and Access Agreement (September 26, 2017) | ||
Western Refining Southwest, Inc. | Western Refining Pipeline, LLC | Truck Unloading and Access Agreement (December 16, 2016) | ||
Western Refining Southwest, Inc. | Western Refining Pipeline, LLC | Truck Unloading and Access Agreement (August 2016) |
Schedule B Page 2
Assigned Contracts
Assignor |
Assignee |
Contract (Effective Date) |
||
Western Refining Southwest, Inc. | Western Refining Pipeline, LLC | Truck Unloading and Access Agreement (August 15, 2016) | ||
Western Refining Southwest, Inc. | Western Refining Pipeline, LLC | Truck Unloading and Access Agreement (June 16, 2017) | ||
Western Refining Southwest, Inc. | Western Refining Pipeline, LLC | Truck Unloading and Access Agreement (November 3, 2017) | ||
Western Refining Southwest, Inc. | Western Refining Pipeline, LLC | Truck Unloading and Access Agreement (August 2016) | ||
Western Refining Southwest, Inc. | Western Refining Pipeline, LLC | Truck Unloading and Access Agreement (October 2017) | ||
Western Refining Southwest, Inc. | Western Refining Pipeline, LLC | Truck Unloading and Access Agreement (November 2016) | ||
Western Refining Southwest, Inc. | Western Refining Pipeline, LLC | Truck Unloading and Access Agreement (March 21, 2017) | ||
Western Refining Southwest, Inc. | Western Refining Pipeline, LLC | Truck Unloading and Access Agreement (December 28, 2016) | ||
Western Refining Southwest, Inc. | Western Refining Pipeline, LLC | Truck Unloading and Access Agreement (September 6, 2016) | ||
Western Refining Southwest, Inc. | Western Refining Pipeline, LLC | Truck Unloading and Access Agreement (July 25, 2016) | ||
Western Refining Southwest, Inc. | Western Refining Pipeline, LLC | Truck Unloading and Access Agreement (August 18, 2017) | ||
Western Refining Southwest, Inc. | Western Refining Pipeline, LLC | Truck Unloading and Access Agreement (May 2016) | ||
Western Refining Southwest, Inc. | Western Refining Pipeline, LLC | Truck Unloading and Access Agreement (August 11, 2016) | ||
Western Refining Southwest, Inc. | Western Refining Pipeline, LLC | Truck Unloading and Access Agreement (December 30, 2016) | ||
Western Refining Southwest, Inc. | Western Refining Pipeline, LLC | Truck Unloading and Access Agreement (February 8, 2017) |
Schedule B Page 3
Assigned Contracts
Assignor |
Assignee |
Contract (Effective Date) |
||
Western Refining Southwest, Inc. | Western Refining Pipeline, LLC | Truck Unloading and Access Agreement (August 18, 2016) | ||
Tesoro Refining & Marketing Company, LLC | Tesoro Logistics Operations LLC | Industry Track Contract (August 11, 2004) | ||
Tesoro Refining & Marketing Company, LLC | Tesoro Logistics Operations LLC | General Agreement No. CW2271879Industrial Switch Service (January 1, 2017) |
Schedule B Page 4
Assigned Contracts
Exhibit 3.1
Execution Version
THIRD AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
TESORO LOGISTICS GP , LLC
A Delaware Limited Liability Company
Dated as of
August 6, 2018
TABLE OF CONTENTS
Page | ||||||
ARTICLE I |
|
|||||
DEFINITIONS |
|
|||||
Section 1.1 |
Definitions | 2 | ||||
Section 1.2 |
Construction | 6 | ||||
ARTICLE II |
|
|||||
ORGANIZATION |
|
|||||
Section 2.1 |
Formation | 6 | ||||
Section 2.2 |
Name | 7 | ||||
Section 2.3 |
Registered Office, Registered Agent, Principal Office, Other Offices | 7 | ||||
Section 2.4 |
Purposes | 7 | ||||
Section 2.5 |
Term | 7 | ||||
Section 2.6 |
No State Law Partnership | 7 | ||||
Section 2.7 |
Certain Undertakings Relating to Separateness | 8 | ||||
ARTICLE III |
|
|||||
MEMBERSHIP |
|
|||||
Section 3.1 |
Membership Interests; Additional Members | 9 | ||||
Section 3.2 |
Access to Information | 9 | ||||
Section 3.3 |
Liability | 10 | ||||
Section 3.4 |
Withdrawal | 10 | ||||
Section 3.5 |
Meetings | 10 | ||||
Section 3.6 |
Action by Consent of Members | 10 | ||||
Section 3.7 |
Conference Telephone Meetings | 10 | ||||
Section 3.8 |
Quorum | 10 | ||||
ARTICLE IV |
|
|||||
ADMISSION OF MEMBERS; DISPOSITION OF MEMBERSHIP INTERESTS |
|
|||||
Section 4.1 |
Assignment; Admission of Assignee as a Member | 11 | ||||
Section 4.2 |
Requirements Applicable to All Dispositions and Admissions | 11 | ||||
ARTICLE V |
|
|||||
CAPITAL CONTRIBUTIONS |
|
|||||
Section 5.1 |
Capital Contributions | 11 | ||||
Section 5.2 |
Loans | 11 | ||||
Section 5.3 |
Return of Contributions | 12 | ||||
ARTICLE VI |
|
|||||
DISTRIBUTIONS AND ALLOCATIONS |
|
|||||
Section 6.1 |
Distributions | 12 | ||||
Section 6.2 |
Allocations of Profits and Losses | 12 | ||||
Section 6.3 |
Limitations on Distributions | 12 |
i
ARTICLE VII |
|
|||||
MANAGEMENT |
|
|||||
Section 7.1 |
Management by Board of Directors | 12 | ||||
Section 7.2 |
Number; Qualification; Tenure | 13 | ||||
Section 7.3 |
Regular Meetings | 13 | ||||
Section 7.4 |
Special Meetings | 13 | ||||
Section 7.5 |
Notice | 13 | ||||
Section 7.6 |
Action by Consent of Board | 14 | ||||
Section 7.7 |
Conference Telephone Meetings | 14 | ||||
Section 7.8 |
Quorum and Action | 14 | ||||
Section 7.9 |
Vacancies; Increases in the Number of Directors | 14 | ||||
Section 7.10 |
Committees | 14 | ||||
Section 7.11 |
Removal. | 15 | ||||
Section 7.12 |
Compensation of Directors | 15 | ||||
Section 7.13 |
Partnership Change of Control. | 16 | ||||
ARTICLE VIII |
|
|||||
OFFICERS |
|
|||||
Section 8.1 |
Officers. | 16 | ||||
Section 8.2 |
Election and Term of Office. | 16 | ||||
Section 8.3 |
Chairman of the Board. | 16 | ||||
Section 8.4 |
Chief Executive Officer | 17 | ||||
Section 8.5 |
President. | 17 | ||||
Section 8.6 |
Vice Presidents | 17 | ||||
Section 8.7 |
Chief Financial Officer | 17 | ||||
Section 8.8 |
General Counsel | 18 | ||||
Section 8.9 |
Secretary | 18 | ||||
Section 8.10 |
Removal | 18 | ||||
Section 8.11 |
Vacancies | 18 | ||||
ARTICLE IX |
|
|||||
INDEMNITY AND LIMITATION OF LIABILITY |
|
|||||
Section 9.1 |
Indemnification | 18 | ||||
Section 9.2 |
Liability of Indemnitees | 20 | ||||
ARTICLE X |
|
|||||
TAXES |
|
|||||
Section 10.1 |
Taxes | 21 | ||||
ARTICLE XI |
|
|||||
BOOKS, RECORDS, REPORTS, AND BANK ACCOUNTS |
|
|||||
Section 11.1 |
Maintenance of Books | 21 | ||||
Section 11.2 |
Reports | 22 | ||||
Section 11.3 |
Bank Accounts | 22 |
ii
ARTICLE XII |
|
|||||
DISSOLUTION, WINDING-UP, TERMINATION AND CONVERSION |
|
|||||
Section 12.1 |
Dissolution | 22 | ||||
Section 12.2 |
Winding-Up and Termination | 22 | ||||
Section 12.3 |
Deficit Capital Accounts | 23 | ||||
Section 12.4 |
Certificate of Cancellation | 23 | ||||
ARTICLE XIII |
|
|||||
MERGER, CONSOLIDATION OR CONVERSION |
|
|||||
Section 13.1 |
Authority | 23 | ||||
Section 13.2 |
Procedure for Merger, Consolidation or Conversion | 24 | ||||
Section 13.3 |
Approval by Members of Merger, Consolidation or Conversion | 25 | ||||
Section 13.4 |
Certificate of Merger, Consolidation or Conversion | 25 | ||||
ARTICLE XIV |
|
|||||
GENERAL PROVISIONS |
|
|||||
Section 14.1 |
Offset | 26 | ||||
Section 14.2 |
Notices | 26 | ||||
Section 14.3 |
Entire Agreement; Superseding Effect | 26 | ||||
Section 14.4 |
Effect of Waiver or Consent | 26 | ||||
Section 14.5 |
Amendment or Restatement | 27 | ||||
Section 14.6 |
Binding Effect | 27 | ||||
Section 14.7 |
Governing Law; Severability | 27 | ||||
Section 14.8 |
Venue | 27 | ||||
Section 14.9 |
Further Assurances | 28 | ||||
Section 14.10 |
Waiver of Certain Rights | 28 | ||||
Section 14.11 |
Counterparts | 28 |
iii
THIRD AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
TESORO LOGISTICS GP, LLC
This THIRD AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (this Agreement ) of Tesoro Logistics GP, LLC (the Company ), dated as of August 6, 2018, is adopted, executed and agreed to by and among the Persons listed on Exhibit A attached hereto as Members of the Company and any additional Persons who become Members of the Company in accordance with the provisions of this Agreement.
RECITALS:
WHEREAS , the Company was formed as a Delaware limited liability company on December 3, 2010;
WHEREAS , Andeavor, formerly known as Tesoro Corporation, a Delaware corporation ( Andeavor ), as the then sole member of the Company, executed the Limited Liability Company Agreement of the Company, dated to be effective as of December 3, 2010 (as amended by Amendment No. 1 thereto, dated to be effective as of December 29, 2010, the Original Limited Liability Company Agreement );
WHEREAS , Andeavor amended and restated the Original Limited Liability Company Agreement, dated to be effective as of April 25, 2011 (the Amended and Restated Limited Liability Company Agreement );
WHEREAS , Andeavor and Tesoro Refining & Marketing Company LLC, a Delaware limited liability company and formerly known as Tesoro Refining and Marketing Company ( TRMC ), amended the Amended and Restated Limited Liability Company Agreement on April 1, 2012, November 15, 2012, June 1, 2013 and December 6, 2013;
WHEREAS , the Company, Andeavor, TRMC and Tesoro Alaska Company LLC, a Delaware limited liability company ( TAC ), executed the Second Amended and Restated Limited Liability Company Agreement of the Company dated as of July 1, 2014, as amended on September 30, 2014, November 12, 2015, July 1, 2016, September 16, 2016, November 21, 2016 and November 8, 2017 (collectively, the Second Amended and Restated Limited Liability Company Agreement ); and
WHEREAS , the Company, Andeavor, TRMC, TAC and certain of their respective affiliates have entered into that certain Internal Reorganization Agreement dated August 5, 2018 pursuant to which, among other things, Andeavor transferred all of its membership interests in the Company to Western Refining Southwest, Inc., an Arizona corporation ( WRS ), and pursuant to Section 3.1 and Article IV, WRS hereby agrees to be bound by this Agreement as a Member of the Company.
NOW THEREFORE, for and in consideration of the premises, the covenants and agreements set forth herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Members hereby amend and restate the Second Amended and Restated Limited Liability Company Agreement in its entirety as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions .
(a) As used in this Agreement, the following terms have the respective meanings set forth below or set forth in the Sections referred to below:
Act means the Delaware Limited Liability Company Act (6 Del. C. § 18-101, et seq.), as it may be amended from time to time. All references in this Agreement to provisions of the Act shall be deemed to refer, if applicable, to their successor statutory provisions to the extent appropriate in light of the context herein in which such references are used.
Affiliate means, with respect to any Person, any other Person that directly or indirectly through one or more intermediaries controls, is controlled by or is under common control with, the Person in question. As used herein, the term control means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities, by contract or otherwise; and the terms controlling and controlled have meanings correlative to the foregoing.
Agreement is defined in the introductory paragraph, as the same may be amended, modified, supplemented or restated from time to time.
Amended and Restated Limited Liability Company Agreement is defined in the Recitals.
Andeavor is defined in Recitals.
Andeavor Entities means Andeavor and its Affiliates (other than the Company and the Partnership Group).
Applicable Law means (a) any United States federal, state or local law, statute or ordinance or any rule, regulation, order, writ, injunction, judgment, decree or permit of any Governmental Authority and (b) any rule or listing requirement of any national securities exchange or trading market recognized by the Commission on which securities issued by the Partnership are listed or quoted.
Assignee means any Person that acquires a Members share of the income, gain, loss, deduction and credits of, and the right to receive distributions from, the Company or any portion thereof through a Disposition; provided, however, that an Assignee shall have no right to be admitted to the Company as a Member except in accordance with Article IV . The Assignee of a dissolved Member shall be the shareholder, partner, member or other equity owner or owners of the dissolved Member or such other Persons to whom such Members Membership Interest is assigned by the Person conducting the liquidation or winding up of such Member.
2
Audit Committee is defined in Section 7.10(b) .
Audit Committee Independent Director is defined in Section 7.10(b) .
Bankruptcy or Bankrupt means, with respect to any Person, that (a) such Person (i) makes a general assignment for the benefit of creditors; (ii) files a voluntary bankruptcy petition; (iii) becomes the subject of an order for relief or is declared insolvent in any federal or state bankruptcy or insolvency proceedings; (iv) files a petition or answer seeking for such Person a reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief under any Applicable Law; (v) files an answer or other pleading admitting or failing to contest the material allegations of a petition filed against such Person in a proceeding of the type described in subclauses ( i ) through (iv) of this clause (a) ; or (vi) seeks, consents to, or acquiesces in the appointment of a trustee, receiver, or liquidator of such Person or of all or any substantial part of such Persons properties or (b) a proceeding seeking reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief under any Applicable Law has been commenced against such Person and 120 days have expired without dismissal thereof or with respect to which, without such Persons consent or acquiescence, a trustee, receiver, or liquidator of such Person or of all or any substantial part of such Persons properties has been appointed and 90 days have expired without the appointment having been vacated or stayed, or 90 days have expired after the date of expiration of a stay, if the appointment has not previously been vacated. The foregoing definition of Bankruptcy is intended to replace and shall supercede and replace the definition of Bankruptcy set forth in the Act.
Board is defined in Section 7.1(c) .
Business Day means (a) any day on which the national securities exchange upon which securities of the Partnership are listed is open for trading or (b) in the event that no Partnership securities are listed on a national securities exchange, any day on which the New York Stock Exchange is open for trading.
Capital Contribution means, with respect to any Member, the amount of money and the net agreed value of any property (other than money) contributed to the Company by such Member. Any reference in this Agreement to the Capital Contribution of a Member shall include any Capital Contribution of its predecessors in interest.
Commission means the United States Securities and Exchange Commission.
Common Units is defined in the Partnership Agreement.
Company is defined in the introductory paragraph.
Conflicts Committee is defined in the Partnership Agreement.
Conflicts Committee Independent Director means a Director who meets the independence standards set forth in the definition of Conflicts Committee in the Partnership Agreement.
Delaware Certificate is defined in Section 2.1 .
3
Director or Directors means a member or members of the Board.
Dispose , Disposing or Disposition means with respect to any asset (including a Membership Interest or any portion thereof), a sale, assignment, transfer, conveyance, gift, exchange or other disposition of such asset, whether such disposition be voluntary, involuntary or by operation of Applicable Law.
Disposing Member is defined in Section 4.1 .
Dissolution Event is defined in Section 12.1(a) .
Governmental Authority or Governmental means any federal, state or local court or governmental or regulatory agency or authority or any arbitration board, tribunal or mediator having jurisdiction over the Company or its assets or Members.
Group Member is defined in the Partnership Agreement.
Indemnitee means any of (a) the Members, (b) any Person who is or was an Affiliate of the Company (other than any Group Member), (c) any Person who is or was a member, partner, director, officer, fiduciary or trustee of the Company or any Affiliate of the Company (other than any Group Member), (d) any Person who is or was serving at the request of the Company or any Affiliate of the Company as an officer, director, member, manager, partner, fiduciary or trustee of another Person; provided, however, that a Person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services, and (e) any Person the Board designates as an Indemnitee for purposes of this Agreement.
Limited Partner and Limited Partners are defined in the Partnership Agreement.
Majority Interest means Membership Interests in the Company entitled to more than 50% of the Sharing Ratios.
Member means the Persons listed on Exhibit A attached hereto, and includes any Person hereafter admitted to the Company as a member as provided in this Agreement, each in its capacity as a member of the Company, but such term does not include any Person who has ceased to be a member of the Company.
Membership Interest means, with respect to any Member, that Members limited liability company interests in the Company, including its share of the income, gain, loss, deduction and credits of, and the right to receive distributions from, the Company.
Merger Agreement is defined in Section 13.1 .
Notices is defined in Section 14.2 .
Omnibus Agreement means that certain Fourth Amended and Restated Omnibus Agreement, dated as of October 30, 2017, as it may be further amended and restated, or any successor agreement.
4
Original Limited Liability Company Agreement is defined in the Recitals.
Partnership means Andeavor Logistics LP, a Delaware limited partnership.
Partnership Agreement means the Third Amended and Restated Agreement of Limited Partnership of the Partnership, dated as of December 1, 2017, as it may be further amended and restated, or any successor agreement.
Partnership Group means the Partnership and its Subsidiaries treated as a single consolidated entity.
Person means an individual or a corporation, firm, limited liability company, partnership, joint venture, trust, unincorporated organization, association, government agency or political subdivision thereof or other entity.
Plan of Conversion is defined in Section 13.1 .
Second Amended and Restated Limited Liability Company Agreement is defined in the Recitals.
Secondment Agreement means that certain Second Amended and Restated Secondment and Logistics Services Agreement, dated as of August 6, 2018, as it may be further amended and restated, or any successor agreement.
Sharing Ratio means, subject in each case to adjustments in accordance with this Agreement or in connection with Dispositions of Membership Interests, (a) in the case of a Member executing this Agreement as of the date of this Agreement or a Person acquiring such Members Membership Interest, the percentage specified for that Member as its Sharing Ratio on Exhibit A and (b) in the case of Membership Interests issued pursuant to Section 3.1 , the Sharing Ratio established pursuant thereto; provided, however, that the total of all Sharing Ratios shall always equal 100%.
Special Approval is defined in the Partnership Agreement.
Subsidiary means, with respect to any Person, (a) a corporation of which more than 50% of the voting power of shares entitled (without regard to the occurrence of any contingency) to vote in the election of directors or other governing body of such corporation is owned, directly or indirectly, at the date of determination, by such Person, by one or more Subsidiaries of such Person or a combination thereof, (b) a partnership (whether general or limited) in which such Person or a Subsidiary of such Person is, at the date of determination, a general or limited partner of such partnership, but only if more than 50% of the partnership interests of such partnership (considering all of the partnership interests of the partnership as a single class) is owned, directly or indirectly, at the date of determination, by such Person, by one or more Subsidiaries of such Person or a combination thereof, or (c) any other Person (other than a corporation or a partnership) in which such Person, one or more Subsidiaries of such Person or a combination thereof, directly or indirectly, at the date of determination, has (i) at least a majority ownership interest or (ii) the power to elect or direct the election of a majority of the directors or other governing body of such Person.
5
Surviving Business Entity is defined in Section 13.1 .
TAC is defined in the Recitals.
Tax Matters Member is defined in Section 10.1(a) .
TCI means Tesoro Companies, Inc., a Delaware corporation.
Treasury Regulations means the regulations (including temporary regulations) promulgated by the United States Department of the Treasury pursuant to and in respect of provisions of the Internal Revenue Code of 1986, as amended from time to time. All references herein to sections of the Treasury Regulations shall include any corresponding provision or provisions of succeeding, similar or substitute, temporary or final Treasury Regulations.
TRMC is defined in the Recitals.
Withdraw , Withdrawing or Withdrawal means the resignation of a Member from the Company as a Member. Such terms shall not include any Dispositions of Membership Interests (which are governed by Article IV ), even though the Member making a Disposition may cease to be a Member as a result of such Disposition.
WRS is defined in the Recitals.
(b) Other terms defined herein have the meanings so given them.
Section 1.2 Construction .
Unless the context requires otherwise: (a) any pronoun used in this Agreement shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns, pronouns and verbs shall include the plural and vice versa; (b) references to Articles and Sections refer to Articles and Sections of this Agreement; (c) the terms include, includes, including or words of like import shall be deemed to be followed by the words without limitation; and (d) the terms hereof, herein or hereunder refer to this Agreement as a whole and not to any particular provision of this Agreement. The table of contents and headings contained in this Agreement are for reference purposes only, and shall not affect in any way the meaning or interpretation of this Agreement.
ARTICLE II
ORGANIZATION
Section 2.1 Formation .
The Company was formed as a Delaware limited liability company by the filing of a Certificate of Formation (the Delaware Certificate ) on December 3, 2010 with the Secretary of State of the State of Delaware under and pursuant to the Act and by the entering into of the Original Limited Liability Company Agreement.
6
Section 2.2 Name .
The name of the Company is Tesoro Logistics GP , LLC and all Company business must be conducted in that name or such other names that comply with Applicable Law as the Board or the Members may select.
Section 2.3 Registered Office, Registered Agent, Principal Office, Other Offices .
The registered office of the Company required by the Act to be maintained in the State of Delaware shall be the office of the initial registered agent for service of process named in the Delaware Certificate or such other office (which need not be a place of business of the Company) as the Board may designate in the manner provided by Applicable Law. The registered agent for service of process of the Company in the State of Delaware shall be the initial registered agent for service of process named in the Delaware Certificate or such other Person or Persons as the Board may designate in the manner provided by Applicable Law. The principal office of the Company in the United States shall be at such a place as the Board may from time to time designate, which need not be in the State of Delaware, and the Company shall maintain records there. The Company may have such other offices as the Board of Directors may designate.
Section 2.4 Purposes .
The purpose of the Company is to own, acquire, hold, sell, transfer, assign, dispose of or otherwise deal with partnership interests in, and act as the general partner of, the Partnership as described in the Partnership Agreement and to engage in any lawful business or activity ancillary or related thereto. The Company shall possess and may exercise all the powers and privileges granted by the Act, by any other law or by this Agreement, together with any powers incidental thereto, including such powers and privileges as are necessary or appropriate to the conduct, promotion or attainment of the business, purposes or activities of the Company.
Section 2.5 Term .
The period of existence of the Company commenced on December 3, 2010 and shall end at such time as a certificate of cancellation is filed with the Secretary of State of the State of Delaware in accordance with Section 12.4 .
Section 2.6 No State Law Partnership .
The Members intend that the Company shall not be a partnership (whether general, limited or other) or joint venture, and that no Member shall be a partner or joint venturer with any other Member, for any purposes other than (if the Company has more than one Member) federal and state income tax purposes, and this Agreement may not be construed or interpreted to the contrary.
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Section 2.7 Certain Undertakings Relating to Separateness .
(a) Separateness Generally . The Company shall, and shall cause the members of the Partnership Group to, conduct their respective businesses and operations separate and apart from those of any other Person (including the Andeavor Entities), except as provided in this Section 2.7 .
(b) Separate Records . The Company shall, and shall cause the Partnership to, (i) maintain their respective books and records and their respective accounts separate from those of any other Person, (ii) maintain their respective financial records, which will be used by them in their ordinary course of business, showing their respective assets and liabilities separate and apart from those of any other Person, except their consolidated Subsidiaries, and (iii) file their respective own tax returns separate from those of any other Person, except (A) to the extent that the Partnership or the Company (1) is treated as a disregarded entity for tax purposes or (2) is not otherwise required to file tax returns under Applicable Law or (B) as may otherwise be required by Applicable Law.
(c) Separate Assets . The Company shall not, and shall cause the Partnership to not, commingle or pool its funds or other assets with those of any other Person, except its consolidated Subsidiaries, and shall maintain its assets in a manner in which it is not costly or difficult to segregate, ascertain or otherwise identify its assets as separate from those of any other Person.
(d) Separate Name . The Company shall, and shall cause the members of the Partnership Group to, (i) conduct their respective businesses in their respective own names or in the names of their respective Subsidiaries or the Partnership, (ii) use their or the Partnerships separate stationery, invoices, and checks, (iii) correct any known misunderstanding regarding their respective separate identities as members of the Partnership Group from that of any other Person (including the Andeavor Entities), and (iv) generally hold themselves and the Partnership Group out as entities separate from any other Person (including the Andeavor Entities).
(e) Separate Credit . The Company shall not (i) pay its own liabilities from a source other than its own funds, (ii) guarantee or become obligated for the debts of any other Person, except its Subsidiaries and the Partnership, (iii) hold out its credit as being available to satisfy the obligations of any other Person, except its Subsidiaries or the Partnership, (iv) acquire obligations or debt securities of its Affiliates (other than the Company or its Subsidiaries or the Partnership), or (v) pledge its assets for the benefit of any Person or make loans or advances to any Person, except its Subsidiaries or the Partnership; provided, however, that the Company may engage in any transaction described in clauses (e) through (e) of this Section 2.7(e) if prior Special Approval has been obtained for such transaction and either (A) the Conflicts Committee has determined, or has obtained reasonable written assurance from a nationally recognized firm of independent public accountants or a nationally recognized investment banking or valuation firm, that the borrower or recipient of the credit extension is not then insolvent and will not be rendered insolvent as a result of such transaction or (B) in the case of transactions described in clause (e) , such transaction is completed through a public auction or a national securities exchange.
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(f) Separate Formalities . The Company shall, and shall cause the Partnership to, (i) observe all limited liability company or limited partnership formalities, as the case may be, and other formalities required by its organizational documents, the laws of the jurisdiction of its formation and other Applicable Laws, (ii) engage in transactions with any of the Andeavor Entities or their respective members, shareholders or partners, as applicable, in conformity with the requirements of Section 7.9(c) of the Partnership Agreement and (iii) subject to the terms of the Omnibus Agreement and the Secondment Agreement, promptly pay, from its own funds, and on a current basis, its allocable share of general and administrative services and costs for services performed, and capital expenditures made, by any of the Andeavor Entities or their respective members, shareholders or partners, as applicable. Each material contract between the Company or the Partnership, on the one hand, and any of the Andeavor Entities or their respective members, shareholders or partners, as applicable, on the other hand, shall be in writing.
(g) No Effect . Failure by the Company to comply with any of the obligations set forth above shall not affect the status of the Company as a separate legal entity, with its separate assets and separate liabilities, or restrict or limit the Company from engaging or contracting with the Andeavor Entities for the provision of services or the purchase or sale of products, whether under the Omnibus Agreement, Secondment Agreement or otherwise.
ARTICLE III
MEMBERSHIP
Section 3.1 Membership Interests; Additional Members .
The Members of the Company are reflected on Exhibit A attached hereto. Additional Persons may be admitted to the Company as Members, and Membership Interests may be issued, on such terms and conditions as the existing Members, voting as a single class, may determine at the time of admission. The terms of admission or issuance must specify the Sharing Ratios applicable thereto and may provide for the creation of different classes or groups of Members or Membership Interests having different (including senior) rights, powers and duties. The Members may reflect the creation of any new class or group in an amendment to this Agreement, indicating the different rights, powers and duties, and such an amendment shall be approved and executed by the Members in accordance with the terms of this Agreement. Any such admission shall be effective only after such new Member has executed and delivered to the Members and the Company an instrument containing the notice address of the new Member, the new Members ratification of this Agreement and agreement to be bound by it.
Section 3.2 Access to Information .
Each Member shall be entitled to receive any information that it may request concerning the Company; provided , however , that this Section 3.2 shall not obligate the Company to create any information that does not already exist at the time of such request (other than to convert existing information from one medium to another, such as providing a printout of information that is stored in a computer database). Each Member shall also have the right, upon reasonable notice, and at all reasonable times during usual business hours to inspect the properties of the Company and to audit, examine and make copies of the books of account and other records of the Company. Such right may be exercised through any agent or employee of such Member designated in writing by it or by an independent public accountant, engineer, attorney or other consultant so designated. All costs and expenses incurred in any inspection, examination or audit made on such Members behalf shall be borne by such Member.
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Section 3.3 Liability .
(a) Except as otherwise provided by the Act, no Member shall be liable for the debts, obligations or liabilities of the Company solely by reason of being a member of the Company.
(b) The Company and the Members agree that the rights, duties and obligations of the Members in their capacities as members of the Company are only as set forth in this Agreement and as otherwise arise under the Act. Furthermore, the Members agree that, to the fullest extent permitted by Applicable Law, the existence of any rights of a Member, or the exercise or forbearance from exercise of any such rights, shall not create any duties or obligations of the Member in its capacity as a member of the Company, nor shall such rights be construed to enlarge or otherwise to alter in any manner the duties and obligations of such Member.
Section 3.4 Withdrawal .
A Member does not have the right or power to Withdraw.
Section 3.5 Meetings .
A meeting of the Members may be called at any time at the request of any Member.
Section 3.6 Action by Consent of Members .
Except as otherwise required by Applicable Law or otherwise provided in this Agreement, all decisions of the Members shall require the affirmative vote of the Members owning a majority of Sharing Ratios present at a meeting at which a quorum is present in accordance with Section 3.8 . To the extent permitted by Applicable Law, the Members may act without a meeting and without notice so long as the number of Members who own the percentage of Sharing Ratios that would be required to take such action at a duly held meeting shall have executed a written consent with respect to any such action taken in lieu of a meeting.
Section 3.7 Conference Telephone Meetings .
Any Member may participate in a meeting of the Members by means of conference telephone or similar communications equipment or by such other means by which all Persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at such meeting.
Section 3.8 Quorum .
The Members owning a majority of Sharing Ratios, present in person or participating in accordance with Section 3.7 , shall constitute a quorum for the transaction of business; provided , however , that, if at any meeting of the Members there shall be less than a quorum present, a majority of the Members present may adjourn the meeting from time to time without further notice. The Members present at a duly organized meeting may continue to transact business until adjournment, notwithstanding the withdrawal of enough Members to leave less than a quorum.
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ARTICLE IV
ADMISSION OF MEMBERS; DISPOSITION OF MEMBERSHIP INTERESTS
Section 4.1 Assignment; Admission of Assignee as a Member .
Subject to this Article IV , a Member may assign in whole or in part its Membership Interests. An Assignee has the right to be admitted to the Company as a Member, with the Membership Interests (and attendant Sharing Ratio) so transferred to such Assignee, only if (a) the Member making the Disposition (a Disposing Member ) has granted the Assignee either (i) all, but not less than all, of such Disposing Members Membership Interests or (ii) the express right to be so admitted and (b) such Disposition is effected in strict compliance with this Article IV . If a Member transfers all of its Membership Interest in the Company pursuant to this Article IV , such admission shall be deemed effective immediately upon the transfer and, immediately upon such admission, the transferor Member shall cease to be a member of the Company.
Section 4.2 Requirements Applicable to All Dispositions and Admissions .
Any Disposition of Membership Interests and any admission of an Assignee as a Member shall also be subject to the following requirements, and such Disposition (and admission, if applicable) shall not be effective unless such requirements are complied with:
(a) Payment of Expenses . The Disposing Member and its Assignee shall pay, or reimburse the Company for, all reasonable costs and expenses incurred by the Company in connection with the Disposition and admission of the Assignee as a Member.
(b) No Release . No Disposition of Membership Interests shall effect a release of the Disposing Member from any liabilities to the Company or the other Members arising from events occurring prior to the Disposition, except as otherwise may be provided in any instrument or agreement pursuant to which a Disposition of Membership Interests is effected.
(c) Agreement to be Bound . The Assignee shall execute a counterpart to this Agreement or other instrument by which such Assignee agrees to be bound by this Agreement.
ARTICLE V
CAPITAL CONTRIBUTIONS
Section 5.1 Capital Contributions .
The Capital Contributions of the Members are as set forth next to their respective names on Exhibit A attached hereto.
Section 5.2 Loans .
If the Company does not have sufficient cash to pay its obligations, any Member(s) that may agree to do so may advance all or part of the needed funds to or on behalf of the Company.
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Any advance described in this Section 5.2 will constitute a loan from the Member to the Company, will bear interest at a lawful rate determined by the Members from the date of the advance until the date of payment and will not be a Capital Contribution.
Section 5.3 Return of Contributions .
Except as expressly provided herein, no Member is entitled to the return of any part of its Capital Contributions or to be paid interest in respect of either its Capital Account or its Capital Contributions. An unreturned Capital Contribution is not a liability of the Company or of any Member. A Member is not required to contribute or to lend any cash or property to the Company to enable the Company to return any Members Capital Contributions.
ARTICLE VI
DISTRIBUTIONS AND ALLOCATIONS
Section 6.1 Distributions .
Distributions to the Members shall be made only to all Members simultaneously in proportion to their respective Sharing Ratios (at the time the amounts of such distributions are determined) and in such aggregate amounts and at such times as shall be determined by the Board; provided, however, that any loans from Members pursuant to Section 5.2 shall be repaid prior to any distributions to Members pursuant to this Section 6.1 .
Section 6.2 Allocations of Profits and Losses .
The Companys profits and losses shall be allocated to the Members in proportion to their respective Sharing Ratios.
Section 6.3 Limitations on Distributions .
Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not make a distribution to any Member on account of its interest in the Company if such distribution would violate the Act or other Applicable Law.
ARTICLE VII
MANAGEMENT
Section 7.1 Management by Board of Directors .
(a) The management of the Company is fully reserved to the Members, and the Company shall not have managers as that term is used in the Act. The powers of the Company shall be exercised by or under the authority of, and the business and affairs of the Company shall be managed under the direction of, the Members, who, except as expressly provided otherwise in this Agreement, shall make all decisions and take all actions for the Company.
(b) The Members shall have the power and authority to delegate to one or more other persons the Members rights and power to manage and control the business and affairs, or any portion thereof, of the Company, including to delegate to agents, officers and employees of a Member or the Company, and to delegate by a management agreement with or otherwise to other Persons.
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(c) The Members hereby delegate to the Board of Directors of the Company (the Board ), to the fullest extent permitted under this Agreement and Delaware law and subject to Section 7.1(d) , all power and authority related to the Companys management and control of the business and affairs of the Partnership.
(d) Notwithstanding anything herein to the contrary, without obtaining approval of Members representing a Majority Interest, the Company shall not, and shall not take any action to cause the Partnership to, (i) sell all or substantially all of the assets of the Company or the Partnership, (ii) merge or consolidate, (iii) to the fullest extent permitted by Applicable Law, dissolve or liquidate, (iv) make or consent to a general assignment for the benefit of its respective creditors; (v) file or consent to the filing of any bankruptcy, insolvency or reorganization petition for relief under the United States Bankruptcy Code naming the Company or the Partnership, as applicable, or otherwise seek, with respect to the Company or the Partnership, such relief from debtors or protection from creditors generally; or (vi) take various actions similar to those described in any of clauses (d) through (d) of this Section 7.1(d) .
Section 7.2 Number; Qualification; Tenure .
The number of Directors constituting the Board shall be at least two and no more than nine, and may be fixed from time to time pursuant to a resolution adopted by Members representing a Majority Interest. A Director need not be a Member. Each Director shall be elected or approved by Members representing a Majority Interest at an annual meeting of the Members and shall serve as a Director of the Company for a term of one year (or their earlier death or removal from office) or until their successors are duly elected and qualified.
Section 7.3 Regular Meetings .
Regular quarterly and annual meetings of the Board shall be held at such time and place as shall be designated from time to time by resolution of the Board. Notice of such regular quarterly and annual meetings shall not be required.
Section 7.4 Special Meetings .
A special meeting of the Board may be called at any time at the request of (a) the Chairman of the Board or (b) a majority of the Directors then in office.
Section 7.5 Notice .
Written notice of all special meetings of the Board must be given to all Directors at least two Business Days prior to any special meeting of the Board. All notices and other communications to be given to Directors shall be sufficiently given for all purposes hereunder if in writing and delivered by hand, courier or overnight delivery service or three days after being mailed by certified or registered mail, return receipt requested, with appropriate postage prepaid, or when received in the form of an e-mail or facsimile, and shall be directed to the address, email
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address or facsimile number as such Director shall designate by notice to the Company. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the Board need be specified in the notice of such meeting, except for amendments to this Agreement, as provided herein. A meeting may be held at any time without notice if all the Directors are present or if those not present waive notice of the meeting either before or after such meeting.
Section 7.6 Action by Consent of Board .
To the extent permitted by Applicable Law, the Board, or any committee of the Board, may act without a meeting so long as a majority of the members of the Board or committee shall have executed a written consent with respect to any action taken in lieu of a meeting.
Section 7.7 Conference Telephone Meetings .
Directors or members of any committee of the Board may participate in a meeting of the Board or such committee by means of conference telephone or similar communications equipment or by such other means by which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at such meeting.
Section 7.8 Quorum and Action .
A majority of all Directors, present in person or participating in accordance with Section 7.7 , shall constitute a quorum for the transaction of business, but if at any meeting of the Board there shall be less than a quorum present, a majority of the Directors present may adjourn the meeting from time to time without further notice. Except as otherwise required by Applicable Law, all decisions of the Board, or any committee of the Board, shall require the affirmative vote of a majority of all Directors of the Board, or any committee of the Board, respectively. The Directors present at a duly organized meeting may continue to transact business until adjournment, notwithstanding the withdrawal of enough Directors to leave less than a quorum.
Section 7.9 Vacancies; Increases in the Number of Directors .
Vacancies and newly created directorships resulting from any increase in the number of Directors shall be filled by the appointment of individuals approved by Members representing a Majority Interest. Any Director so appointed shall hold office until the next annual election and until his successor shall be duly elected and qualified, unless sooner displaced.
Section 7.10 Committees .
(a) The Board may establish committees of the Board and may delegate any of its responsibilities to such committees, except as prohibited by Applicable Law.
(b) The Board shall have an audit committee (the Audit Committee ) comprised of directors who meet the independence standards required of directors who serve on an audit committee of a board of directors established by the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder and by the New York Stock Exchange or any national securities exchange on which the Common Units are listed (each, an Audit Committee Independent Director ). The Audit Committee shall establish a written audit
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committee charter in accordance with the rules and regulations of the Commission and the New York Stock Exchange or any national securities exchange on which the Common Units are listed from time to time, in each case as amended from time to time. Each member of the Audit Committee shall satisfy the rules and regulations of the Commission and the New York Stock Exchange or any national securities exchange on which the Common Units are listed from time to time, in each case as amended from time to time, pertaining to qualification for service on an audit committee.
(c) The Board may, from time to time, establish a Conflicts Committee. The Conflicts Committee shall be composed of one Conflicts Committee Independent Director at any time where there is only one Conflicts Committee Independent Director on the Board and shall be composed of two or more Conflicts Committee Independent Directors if there is more than one Conflicts Committee Independent Director on the Board. The Conflicts Committee shall function in the manner described in the Partnership Agreement. Notwithstanding any duty otherwise existing at law or in equity, any matter approved by the Conflicts Committee in accordance with the provisions, and subject to the limitations, of the Partnership Agreement, shall not be deemed to be a breach of any fiduciary or other duties owed by the Board or any Director to the Company or the Members.
(d) A majority of any committee, present in person or participating in accordance with Section 7.7 , shall constitute a quorum for the transaction of business of such committee.
(e) A majority of any committee may determine its action and fix the time and place of its meetings unless the Board shall otherwise provide. Notice of such meetings shall be given to each member of the committee in the manner provided for in Section 7.5 . The Board shall have power at any time to fill vacancies in, to change the membership of, or to dissolve any such committee.
Section 7.11 Removal .
Any Director or the entire Board may be removed at any time, with or without cause, by Members representing a Majority Interest.
Section 7.12 Compensation of Directors .
Except as expressly provided in any written agreement between the Company and a Director or by resolution of the Board, no Director shall receive any compensation from the Company for services provided to the Company in its capacity as a Director, except that each Director shall be compensated for attendance at Board meetings at rates of compensation as from time to time established by the Board or a committee thereof; provided , however , that Directors who are also employees of the Company or any Affiliate thereof shall receive no compensation for their services as Directors or committee members. In addition, the Directors who are not employees of the Company or any Affiliate thereof shall be entitled to be reimbursed for out-of-pocket costs and expenses incurred in connection with attending meetings of the Board or committees thereof.
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Section 7.13 Partnership Change of Control .
The Members shall provide the Company with reasonable advance notice of a Partnership Change of Control (as defined in the Omnibus Agreement) planned or to be consummated by the Members to allow the Conflicts Committee to recommend to the Board whatever actions the Conflicts Committee deems necessary or appropriate to protect the unaffiliated, public Limited Partners of the Partnership.
ARTICLE VIII
OFFICERS
Section 8.1 Officers .
(a) The Board shall elect one or more persons to be officers of the Company to assist in carrying out the Boards decisions and the day-to-day activities of the Company in its capacity as the general partner of the Partnership. Officers are not managers as that term is used in the Act. Any individuals who are elected as officers of the Company shall serve at the pleasure of the Board and shall have such titles and the authority and duties specified in this Agreement or otherwise delegated to each of them, respectively, by the Board from time to time. The salaries or other compensation, if any, of the officers of the Company shall be fixed by the Board.
(b) The officers of the Company may consist of a Chairman of the Board, a Chief Executive Officer, a President, one or more Vice Presidents, a Chief Financial Officer, a General Counsel, a Secretary and such other officers as the Board from time to time may deem proper. The Chairman of the Board, if any, shall be chosen from among the Directors. All officers elected by the Board shall each have such powers and duties as generally pertain to their respective offices, subject to the specific provisions of this Article VIII . The Board may from time to time elect such other officers or appoint such agents as may be necessary or desirable for the conduct of the business of the Company. Such other officers and agents shall have such duties and shall hold their offices for such terms as shall be provided in this Agreement or as may be prescribed by the Board, as the case may be from time to time.
Section 8.2 Election and Term of Office .
The officers of the Company shall be elected from time to time by the Board. Each officer shall hold office until such persons successor shall have been duly elected and qualified or until such persons death or until he or she shall resign or be removed pursuant to Section 8.10 .
Section 8.3 Chairman of the Board .
The Chairman of the Board shall preside, if present, at all meetings of the Board and of the Limited Partners of the Partnership and shall perform such additional functions and duties as the Board may prescribe from time to time. The Directors also may elect a Vice Chairman of the Board to act in the place of the Chairman of the Board upon his or her absence or inability to act.
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Section 8.4 Chief Executive Officer .
The Chief Executive Officer, who may be the Chairman or Vice Chairman of the Board and/or the President, shall have general and active management authority over the business of the Company and shall see that all orders and resolutions of the Board are carried into effect. The Chief Executive Officer may sign deeds, mortgages, bonds, contracts or other instruments, except in cases where the signing and execution thereof shall be expressly delegated by the Board or by this Agreement to some other officer or agent of the Company, or shall be required by law to be otherwise signed and executed. The Chief Executive Officer shall also perform all duties and have all powers incident to the office of Chief Executive Officer and perform such other duties and may exercise such other powers as may be assigned by this Agreement or prescribed by the Board from time to time.
Section 8.5 President .
The President shall, subject to the control of the Board and the Chief Executive Officer, in general, supervise and control all of the business and affairs of the Company. The President shall preside at all meetings of the Members. The President may sign any deeds, mortgages, bonds, contracts or other instruments, except in cases where the signing and execution thereof shall be expressly delegated by the Board or by this Agreement to some other officer or agent of the Company, or shall be required by law to be otherwise signed and executed. The President shall perform all duties and have all powers incident to the office of President and perform such other duties and may exercise such other powers as may be delegated by the Chief Executive Officer or as may be prescribed by the Board from time to time.
Section 8.6 Vice Presidents .
Any Executive Vice President, Senior Vice President and Vice President, in the order of seniority, unless otherwise determined by the Board, shall, in the absence or disability of the President, perform the duties and exercise the powers of the President. They shall also perform the usual and customary duties and have the powers that pertain to such office and generally assist the President by executing contracts and agreements and exercising such other powers and performing such other duties as are delegated to them by the Chief Executive Officer or President or as may be prescribed by the Board from time to time.
Section 8.7 Chief Financial Officer .
The Chief Financial Officer shall perform all duties and have all powers incident to the office of the Chief Financial Officer and in general have overall supervision of the financial operations of the Company. The Chief Financial Officer shall receive and deposit all moneys and other valuables belonging to the Company in the name and to the credit of the Company and shall disburse the same and only in such manner as the Board or the appropriate officer of the Company may from time to time determine. The Chief Financial Officer shall render to the Board, the Chief Executive Officer and the President, whenever any of them request it, an account of all his or her transactions as Chief Financial Officer and of the financial condition of the Company, and shall perform such other duties and may exercise such other powers as may be delegated by the Chief Executive Officer or President or as may be prescribed by the Board from time to time. The Chief Financial Officer shall have the same power as the President and Chief Executive Officer to execute documents on behalf of the Company.
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Section 8.8 General Counsel .
The General Counsel shall be the principal legal officer of the Company. The General Counsel shall have general direction of and supervision over the legal affairs of the Company and shall advise the Board and the officers of the Company on all legal matters. The General Counsel shall perform such other duties and may exercise such other powers as may be delegated by the Chief Executive Officer or President or as may be prescribed by the Board from time to time.
Section 8.9 Secretary .
The Secretary shall keep or cause to be kept, in one or more books provided for that purpose, the minutes of all meetings of the Board, the committees of the Board and the Members and of the Limited Partners. The Secretary shall see that all notices are duly given in accordance with the provisions of this Agreement and as required by Applicable Law; shall be custodian of the records and the seal of the Company (if any) and affix and attest the seal (if any) to all documents to be executed on behalf of the Company under its seal; and shall see that the books, reports, statements, certificates and other documents and records required by Applicable Law to be kept and filed are properly kept and filed; and in general, shall perform all duties and have all powers incident to the office of Secretary and perform such other duties and may exercise such other powers as may be delegated by the Chief Executive Officer or President or as may be prescribed by the Board from time to time.
Section 8.10 Removal .
Any officer elected, or agent appointed, by the Board may be removed, with or without cause, by the affirmative vote of a majority of the Board whenever, in such majoritys judgment, the best interests of the Company would be served thereby. No officer shall have any contractual rights against the Company for compensation by virtue of such election beyond the date of the election of such persons successor, such persons death, such persons resignation or such persons removal, whichever event shall first occur, except as otherwise provided in an employment contract or under an employee deferred compensation plan.
Section 8.11 Vacancies .
A newly created elected office and a vacancy in any elected office because of death, resignation or removal may be filled by the Board for the unexpired portion of the term at any meeting of the Board.
ARTICLE IX
INDEMNITY AND LIMITATION OF LIABILITY
Section 9.1 Indemnification .
(a) To the fullest extent permitted by Applicable Law but subject to the limitations expressly provided in this Agreement, all Indemnitees shall be indemnified and held harmless by the Company from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest,
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settlements or other amounts arising from any and all threatened, pending or completed claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, and whether formal or informal and including appeals, in which any Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, by reason of its status as an Indemnitee and acting (or refraining to act) in such capacity on behalf of or for the benefit of the Company; provided, however, that the Indemnitee shall not be indemnified and held harmless if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Agreement, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or, in the case of a criminal matter, acted with knowledge that the Indemnitees conduct was unlawful. Any indemnification pursuant to this Section 9.1 shall be made only out of the assets of the Company, it being agreed that the Members shall not be personally liable for such indemnification and shall have no obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.
(b) To the fullest extent permitted by Applicable Law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 9.1(a) in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 9.1 , the Indemnitee is not entitled to be indemnified upon receipt by the Company of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be ultimately determined that the Indemnitee is not entitled to be indemnified as authorized by this Section 9.1 .
(c) The indemnification provided by this Section 9.1 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, as a matter of law, in equity or otherwise, both as to actions in the Indemnitees capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
(d) The Company may purchase and maintain (or reimburse its Affiliates for the cost of) insurance on behalf of the Indemnitees, the Company and its Affiliates and such other Persons as the Company shall determine, against any liability that may be asserted against or expense that may be incurred by such Person in connection with the Companys activities or such Persons activities on behalf of the Company, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement.
(e) For purposes of this Section 9.1 , the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute fines within the meaning of Section 9.1 ; and action taken or omitted by it with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose that is in the best interests of the Company.
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(f) In no event may an Indemnitee subject the Members to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 9.1 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(h) The provisions of this Section 9.1 are for the benefit of the Indemnitees, their heirs, successors, assigns, executors and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(i) No amendment, modification or repeal of this Section 9.1 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 9.1 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(j) TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, AND SUBJECT TO SECTION 9.1(a) , THE PROVISIONS OF THE INDEMNIFICATION PROVIDED IN THIS SECTION 9.1 ARE INTENDED BY THE PARTIES TO APPLY EVEN IF SUCH PROVISIONS HAVE THE EFFECT OF EXCULPATING THE INDEMNITEE FROM LEGAL RESPONSIBILITY FOR THE CONSEQUENCES OF SUCH PERSONS NEGLIGENCE, FAULT OR OTHER CONDUCT.
Section 9.2 Liability of Indemnitees .
(a) Notwithstanding anything to the contrary set forth in this Agreement or the Partnership Agreement, no Indemnitee shall be liable for monetary damages to the Company, the Partnership, the Members or any other Person bound by this Agreement, for losses sustained or liabilities incurred as a result of any act or omission of an Indemnitee unless there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, with respect to the matter in question, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or, in the case of a criminal matter, acted with knowledge that the Indemnitees conduct was criminal.
(b) Subject to its obligations and duties as set forth in Article VII , the Board and any committee thereof may exercise any of the powers granted to it by this Agreement and perform any of the duties imposed upon it hereunder either directly or by or through the Companys officers or agents, and neither the Board nor any committee thereof shall be responsible for any misconduct or negligence on the part of any such officer or agent appointed by the Board or any committee thereof in good faith.
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(c) Except as expressly set forth in this Agreement, no Member or any other Indemnitee shall have any duties or liabilities, including fiduciary duties, to the Company or any other Member and the provisions of this Agreement, to the extent that they restrict, eliminate or otherwise modify the duties and liabilities, including fiduciary duties, of the Members or any other Indemnitee otherwise existing at law or in equity, are agreed by the Members to replace such other duties and liabilities of the Members and such other Indemnitee.
(d) No amendment, modification or repeal of this Section 9.2 or any provision hereof shall in any manner affect the limitations on the liability of any Indemnitee under this Section 9.2 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
ARTICLE X
TAXES
Section 10.1 Taxes .
(a) The Board shall from time to time designate a Member to act as the tax matters partner under Section 6231 of the Internal Revenue Code, subject to replacement by the Board (such Member, the Tax Matters Member ). The initial Tax Matters Member will be Andeavor. The Tax Matters Member shall prepare and timely file (on behalf of the Company) all state and local tax returns, if any, required to be filed by the Company. The Company shall bear the costs of the preparation and filing of its returns.
(b) The Company and the Members acknowledge that for federal income tax purposes, the Company will be disregarded as an entity separate from the Members pursuant to Treasury Regulation § 301.7701-3 as long as all of the Membership Interests in the Company are owned by a sole Member.
ARTICLE XI
BOOKS, RECORDS, REPORTS, AND BANK ACCOUNTS
Section 11.1 Maintenance of Books .
(a) The Board shall keep or cause to be kept at the principal office of the Company or at such other location approved by the Board complete and accurate books and records of the Company, supporting documentation of the transactions with respect to the conduct of the Companys business and minutes of the proceedings of the Board and any other books and records that are required to be maintained by Applicable Law.
(b) The books of account of the Company shall be maintained on the basis of a fiscal year that is the calendar year and on an accrual basis in accordance with United States generally accepted accounting principles, consistently applied.
21
Section 11.2 Reports .
The Board shall cause to be prepared and delivered to each Member such reports, forecasts, studies, budgets and other information as the Members may reasonably request from time to time.
Section 11.3 Bank Accounts .
Funds of the Company shall be deposited in such banks or other depositories as shall be designated from time to time by the Board. All withdrawals from any such depository shall be made only as authorized by the Board and shall be made only by check, wire transfer, debit memorandum or other written instruction.
ARTICLE XII
DISSOLUTION, WINDING-UP, TERMINATION AND CONVERSION
Section 12.1 Dissolution .
(a) The Company shall dissolve and its affairs shall be wound up on the first to occur of the following events (each a Dissolution Event ):
(i) the unanimous consent of the Members;
(ii) entry of a decree of judicial dissolution of the Company under Section 18-802 of the Act; and
(iii) at any time there are no Members of the Company, unless the Company is continued in accordance with the Act or this Agreement.
(b) No other event shall cause a dissolution of the Company.
(c) Upon the occurrence of any event that causes there to be no Members of the Company, to the fullest extent permitted by Applicable Law, the personal representative of the last remaining Member is hereby authorized to, and shall, within 90 days after the occurrence of the event that terminated the continued membership of such Member in the Company, agree in writing (i) to continue the Company and (ii) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute Member of the Company, effective as of the occurrence of the event that terminated the continued membership of such Member in the Company.
(d) Notwithstanding any other provision of this Agreement, the Bankruptcy of a Member shall not cause such Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
Section 12.2 Winding-Up and Termination .
(a) On the occurrence of a Dissolution Event, the Members shall act as, or alternatively appoint, a liquidator. The liquidator shall proceed diligently to wind up the affairs of the Company and make final distributions as provided herein and in the Act. The costs of winding up shall be borne as a Company expense. The steps to be accomplished by the liquidator are as follows:
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(i) as promptly as possible after dissolution and again after final winding up, the liquidator shall cause a proper accounting to be made by a recognized firm of certified public accountants of the Companys assets, liabilities, and operations through the last day of the month in which the dissolution occurs or the final winding up is completed, as applicable;
(ii) subject to the Act, the liquidator shall discharge from Company funds all of the debts, liabilities and obligations of the Company (including all expenses incurred in winding up or otherwise make adequate provision for payment and discharge thereof (including the establishment of a cash escrow fund for contingent, conditional and unmatured liabilities in such amount and for such term as the liquidator may reasonably determine)); and
(iii) all remaining assets of the Company shall be distributed to the Members in accordance with Section 6.1 .
(b) The distribution of cash or property to a Member in accordance with the provisions of this Section 12.2 constitutes a complete return to the Member of its Capital Contributions and a complete distribution to the Member of its Membership Interest and all the Companys property and constitutes a compromise to which all Members have consented pursuant to Section 18-502(b) of the Act. To the extent that a Member returns funds to the Company, such Member shall have no claim against any other Member for those funds.
Section 12.3 Deficit Capital Accounts .
No Member will be required to pay to the Company, to any other Member or to any third party any deficit balance that may exist from time to time in the Members Capital Account.
Section 12.4 Certificate of Cancellation .
On completion of the winding up of the Company as provided herein and under the Act, the Members (or such other Person or Persons as the Act may require or permit) shall file a certificate of cancellation with the Secretary of State of the State of Delaware and take such other actions as may be necessary to terminate the existence of the Company. Upon the filing of such certificate of cancellation, the existence of the Company shall terminate, except as may be otherwise provided by the Act or by Applicable Law.
ARTICLE XIII
MERGER, CONSOLIDATION OR CONVERSION
Section 13.1 Authority .
Subject to compliance with Section 7.1(d) , the Company may merge or consolidate with one or more domestic corporations, limited liability companies, statutory trusts or associations, real estate investment trusts, common law trusts or unincorporated businesses, including a partnership (whether general or limited (including a limited liability partnership)), or convert into any such domestic entity, pursuant to a written agreement of merger or consolidation ( Merger Agreement ) or a written plan of conversion ( Plan of Conversion ), as the case may be, in accordance with this Article XIII . The surviving entity to any such merger, consolidation or conversion is referred to herein as the Surviving Business Entity.
23
Section 13.2 Procedure for Merger, Consolidation or Conversion .
(a) The merger, consolidation or conversion of the Company pursuant to this Article XIII requires the prior approval of a majority of the Board and compliance with Section 13.3 .
(b) If the Board shall determine to consent to a merger or consolidation, the Board shall approve the Merger Agreement, which shall set forth:
(i) the names and jurisdictions of formation or organization of each of the business entities proposing to merge or consolidate;
(ii) the name and jurisdiction of formation or organization of the Surviving Business Entity that is to survive the proposed merger or consolidation;
(iii) the terms and conditions of the proposed merger or consolidation;
(iv) the manner and basis of exchanging or converting the equity securities of each constituent business entity for, or into, cash, property or interests, rights, securities or obligations of the Surviving Business Entity; and (A) if any general or limited partner interests, securities or rights of any constituent business entity are not to be exchanged or converted solely for, or into, cash, property or general or limited partner interests, rights, securities or obligations of the Surviving Business Entity, the cash, property or interests, rights, securities or obligations of any general or limited partnership, corporation, trust, limited liability company, unincorporated business or other entity (other than the Surviving Business Entity) which the holders of such general or limited partner interests, securities or rights are to receive in exchange for, or upon conversion of their interests, securities or rights, and (B) in the case of securities represented by certificates, upon the surrender of such certificates, which cash, property or general or limited partner interests, rights, securities or obligations of the Surviving Business Entity or any general or limited partnership, corporation, trust, limited liability company, unincorporated business or other entity (other than the Surviving Business Entity), or evidences thereof, are to be delivered;
(v) a statement of any changes in the constituent documents or the adoption of new constituent documents (the articles or certificate of incorporation, articles of trust, declaration of trust, certificate or agreement of limited partnership, certificate of formation, limited liability company agreement or other similar charter or governing document) of the Surviving Business Entity to be effected by such merger or consolidation;
24
(vi) the effective time of the merger, which may be the date of the filing of the certificate of merger pursuant to Section 13.4 or a later date specified in or determinable in accordance with the Merger Agreement; provided, however, that if the effective time of the merger is to be later than the date of the filing of such certificate of merger, the effective time shall be fixed at a date or time certain at or prior to the time of the filing of such certificate of merger and stated therein; and
(vii) such other provisions with respect to the proposed merger or consolidation as are deemed necessary or appropriate by the Board.
(c) If the Board shall determine to consent to a conversion of the Company, the Board shall approve and adopt a Plan of Conversion containing such terms and conditions that the Board of Directors determines to be necessary or appropriate.
Section 13.3 Approval by Members of Merger, Consolidation or Conversion .
(a) The Board, upon its approval of the Merger Agreement or Plan of Conversion, as the case may be, shall direct that the Merger Agreement or the Plan of Conversion, as applicable, be submitted to a vote of the Members, whether at a meeting or by written consent. A copy or a summary of the Merger Agreement or the Plan of Conversion, as applicable, shall be included in or enclosed with the notice of a special meeting or the written consent.
(b) The Merger Agreement or the Plan of Conversion, as applicable, shall be approved upon receiving the affirmative vote or consent of Members representing a Majority Interest.
(c) After such approval by vote or consent of the Members, and at any time prior to the filing of the certificate of merger, consolidation or conversion pursuant to Section 13.4 , the merger, consolidation or conversion may be abandoned pursuant to provisions therefor, if any, set forth in the Merger Agreement or the Plan of Conversion, as the case may be.
Section 13.4 Certificate of Merger, Consolidation or Conversion .
(a) Upon the required approval by the Board and the Members of a Merger Agreement or a Plan of Conversion, as the case may be, a certificate of merger, consolidation or conversion, as applicable, shall be executed and filed with the Secretary of State of the State of Delaware in conformity with the requirements of the Act and shall have such effect as provided under the Act or other Applicable Law.
(b) (b) A merger, consolidation or conversion effected pursuant to this Article XIII shall not (i) to the fullest extent permitted by Applicable Law, be deemed to result in a transfer or assignment of assets or liabilities from one entity to another having occurred or (ii) require the Company (if it is not the Surviving Business Entity) to wind up its affairs, pay its liabilities or distribute its assets as required under Article XII of this Agreement or under the applicable provisions of the Act.
25
ARTICLE XIV
GENERAL PROVISIONS
Section 14.1 Offset .
Whenever the Company is to pay any sum to any Member, any amounts that Member owes the Company may be deducted from that sum before payment.
Section 14.2 Notices .
All notices, demands, requests, consents, approvals or other communications (collectively, Notices ) required or permitted to be given hereunder or which are given with respect to this Agreement shall be in writing and shall be personally served, delivered by reputable air courier service with charges prepaid, or transmitted by hand delivery or facsimile, addressed to the Company as set forth below, to the Members as set forth on Exhibit B , or to such other address as such party shall have specified most recently by written notice. Notice shall be deemed given on the date of service or transmission if personally served or transmitted by facsimile. Notice otherwise sent as provided herein shall be deemed given upon delivery of such notice:
To the Company:
Tesoro Logistics GP, LLC
19100 Ridgewood Parkway
San Antonio, Texas 78259-1828
Attn: President
Telephone: (210) 626-6000
Fax: (210) 745-4441
Section 14.3 Entire Agreement; Superseding Effect .
This Agreement constitutes the entire agreement of the Members relating to the Company and the transactions contemplated hereby, and supersedes all provisions and concepts contained in all prior contracts or agreements between the Members with respect to the Company, whether oral or written.
Section 14.4 Effect of Waiver or Consent .
Except as otherwise provided in this Agreement, a waiver or consent, express or implied, to or of any breach or default by any Member in the performance by that Member of its obligations with respect to the Company is not a consent or waiver to or of any other breach or default in the performance by that Member of the same or any other obligations of that Member with respect to the Company. Except as otherwise provided in this Agreement, failure on the part of a Member to complain of any act of any Member or to declare any Member in default with respect to the Company, irrespective of how long that failure continues, does not constitute a waiver by that Member of its rights with respect to that default until the applicable statute-of-limitations period has run.
26
Section 14.5 Amendment or Restatement .
This Agreement may be amended or restated only by a written instrument executed by all Members; provided, however, that, notwithstanding anything to the contrary contained in this Agreement, each Member agrees that the Board, without the approval of any Member, may amend any provision of the Delaware Certificate and this Agreement, and may authorize any officer to execute, swear to, acknowledge, deliver, file and record any such amendment and whatever documents may be required in connection therewith, to reflect any change that does not require consent or approval (or for which such consent or approval has been obtained) under this Agreement or does not materially adversely affect the rights of the Members.
Section 14.6 Binding Effect .
Subject to the restrictions on Dispositions set forth in this Agreement, this Agreement is binding on and shall inure to the benefit of the Members and their respective successors and permitted assigns.
Section 14.7 Governing Law; Severability .
THIS AGREEMENT IS GOVERNED BY AND SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF DELAWARE, EXCLUDING ANY CONFLICT-OF-LAWS RULE OR PRINCIPLE THAT MIGHT REFER THE GOVERNANCE OR THE CONSTRUCTION OF THIS AGREEMENT TO THE LAW OF ANOTHER JURISDICTION. In the event of a direct conflict between the provisions of this Agreement and (a) any mandatory, non-waivable provision of the Act, such provision of the Act shall control. If any provision of the Act may be varied or superseded in a limited liability company agreement (or otherwise by agreement of the members or managers of a limited liability company), such provision shall be deemed superseded and waived in its entirety if this Agreement contains a provision addressing the same issue or subject matter. If any provision of this Agreement or the application thereof to any Member or circumstance is held invalid or unenforceable to any extent, (x) the remainder of this Agreement and the application of that provision to other Members or circumstances is not affected thereby, and (y) the Members shall negotiate in good faith to replace that provision with a new provision that is valid and enforceable and that puts the Members in substantially the same economic, business and legal position as they would have been in if the original provision had been valid and enforceable.
Section 14.8 Venue .
Any and all claims, suits, actions or proceedings arising out of, in connection with or relating in any way to this Agreement shall be exclusively brought in the Court of Chancery of the State of Delaware. Each party hereto unconditionally and irrevocably submits to the exclusive jurisdiction of the Court of Chancery of the State of Delaware with respect to any such claim, suit, action or proceeding and waives any objection that such party may have to the laying of venue of any claim, suit, action or proceeding in the Court of Chancery of the State of Delaware.
27
Section 14.9 Further Assurances .
In connection with this Agreement and the transactions contemplated hereby, each Member shall execute and deliver any additional documents and instruments and perform any additional acts that may be necessary or appropriate to effectuate and perform the provisions of this Agreement and those transactions.
Section 14.10 Waiver of Certain Rights .
Each Member, to the fullest extent permitted by Applicable Law, irrevocably waives any right it may have to maintain any action for dissolution of the Company or for partition of the property of the Company.
Section 14.11 Counterparts .
This Agreement may be executed in any number of counterparts with the same effect as if all signing parties had signed the same document. All counterparts shall be construed together and constitute the same instrument. The use of facsimile signatures and signatures delivered by email in portable document format (.pdf) affixed in the name and on behalf of a party is expressly permitted by this Agreement.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Company and the Members have executed this Agreement as of the date first set forth above.
THE COMPANY: | ||
TESORO LOGISTICS GP, LLC | ||
By: |
/s/ Steven M. Sterin |
|
Steven M. Sterin | ||
President and Chief Financial Officer | ||
MEMBERS: | ||
WESTERN REFINING SOUTHWEST, INC. | ||
By: |
/s/ Stephan E. Tompsett |
|
Stephan E. Tompsett | ||
Vice President and Treasurer | ||
TESORO REFINING & MARKETING COMPANY LLC | ||
By: |
/s/ Stephan E. Tompsett |
|
Stephan E. Tompsett | ||
Vice President and Treasurer | ||
TESORO ALASKA COMPANY LLC | ||
By: |
/s/ Stephan E. Tompsett |
|
Stephan E. Tompsett | ||
Vice President and Treasurer |
[Signature Page to
Third Amended and Restated Limited Liability Company Agreement
of Tesoro Logistics GP, LLC]
EXHIBIT A
MEMBERS
Member |
Sharing Ratio |
Capital Contribution |
||
Western Refining Southwest, Inc. | 2.7% |
$1,000.00 plus $63 million in assets contributed on April 26, 2011 in connection with the initial public offering of Andeavor Logistics LP.
100% of the equity interests of Tesoro Alaska Pipeline Company LLC, pursuant to the Contribution, Conveyance and Assumption Agreement dated June 23, 2014.
|
||
Tesoro Alaska Company LLC | 14.3% |
The Nikiski Assets, pursuant to the Contribution, Conveyance and Assumption Agreement dated June 23, 2014
The Kenai Tankage pursuant to the First Closing under the Contribution, Conveyance and Assumption Agreement dated July 1, 2016
The TAT Units pursuant to the Second Closing under the Contribution, Conveyance and Assumption Agreement dated July 1, 2016
|
||
Tesoro Refining & Marketing Company LLC |
83.0% |
The Amorco Wharf assets, pursuant to the Contribution, Conveyance and Assumption Agreement effective date April 1, 2012.
The Long Beach assets, pursuant to the Contribution, Conveyance and Assumption Agreement effective date September 14, 2012.
The Anacortes Rail Facility assets, pursuant to the Contribution, Conveyance, and Assumption Agreement effective date November 15, 2012.
The BP Carson assets, pursuant to the Contribution, Conveyance and Assumption Agreement dated May 17, 2013 and effective as of June 1, 2013.
The BP Carson Tranche 2 assets, pursuant to the Contribution, Conveyance and Assumption Agreement dated November 18, 2013 and effective as of December 6, 2013. |
Exhibit A to
Third Amended and Restated Limited Liability Company Agreement
of Tesoro Logistics GP, LLC
Member |
Sharing Ratio |
Capital Contribution |
||
The Anacortes Assets and Martinez Assets, pursuant to the Contribution, Conveyance and Assumption Agreement dated June 23, 2014.
The Tankage, pursuant to the Contribution, Conveyance and Assumption Agreement effective as of November 12, 2015.
The Tankage and Marine Terminal, pursuant to the Contribution, Conveyance and Assumption Agreement effective as of November 21, 2016.
The Tankage, the Manifest Rail Rack and the Trackage and the Pipelines pursuant to the Contribution, Conveyance and Assumption Agreement effective as of November 8, 2017. |
2
EXHIBIT B
ADDRESSES FOR NOTICE PURPOSES
Member |
Address |
|
Western Refining Southwest, Inc. |
19100 Ridgewood Parkway San Antonio, Texas 78259-1828 Attn: President Telephone: (210) 626-6000 Fax: (210) 745-4441 |
|
Tesoro Alaska Company LLC |
19100 Ridgewood Parkway San Antonio, Texas 78259-1828 Attn: President Telephone: (210) 626-6000 Fax: (210) 745-4441 |
|
Tesoro Refining & Marketing Company LLC |
19100 Ridgewood Parkway San Antonio, Texas 78259-1828 Attn: President Telephone: (210) 626-6000 Fax: (210) 745-4441 |
Exhibit B to
Third Amended and Restated Limited Liability Company Agreement
of Tesoro Logistics GP, LLC
Exhibit 10.1
Execution Version
SECOND AMENDED AND RESTATED SCHEDULES
TO FOURTH AMENDED AND RESTATED OMNIBUS AGREEMENT
A Fourth Amended and Restated Omnibus Agreement was executed as of October 30, 2017 (the Fourth Amended and Restated Omnibus Agreement), among Andeavor, on behalf of itself and the other Andeavor Entities, Tesoro Refining & Marketing Company LLC, Tesoro Companies, Inc., Tesoro Alaska Company LLC, Andeavor Logistics LP and Tesoro Logistics GP, LLC. Capitalized terms not otherwise defined in this document shall have the terms set forth in the Fourth Amended and Restated Omnibus Agreement.
The Parties agree that the Schedules are hereby amended and restated in their entirety as of the date hereof to be as attached hereto. Pursuant to Section 9.12 of the Fourth Amended and Restated Omnibus Agreement, such amended and restated Schedules shall replace the prior First Amended and Restated Schedules as of the date hereof and shall be incorporated by reference into the Fourth Amended and Restated Omnibus Agreement for all purposes.
[Signature Page Follows]
Executed as of August 6, 2018.
ANDEAVOR | ||
By: |
/s/ Gregory J. Goff |
|
Gregory J. Goff | ||
President and Chief Executive Officer | ||
TESORO REFINING & MARKETING COMPANY LLC | ||
By: |
/s/ Gregory J. Goff |
|
Gregory J. Goff | ||
President and Chief Executive Officer | ||
TESORO COMPANIES, INC. | ||
By: |
/s/ Gregory J. Goff |
|
Gregory J. Goff | ||
President and Chief Executive Officer | ||
TESORO ALASKA COMPANY LLC | ||
By: |
/s/ Gregory J. Goff |
|
Gregory J. Goff | ||
President and Chief Executive Officer |
Signature Page
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
ANDEAVOR LOGISTICS LP | ||
By: | Tesoro Logistics GP, LLC, | |
its general partner | ||
By: |
/s/ Steven M. Sterin |
|
Steven M. Sterin | ||
President and Chief Financial Officer | ||
TESORO LOGISTICS GP, LLC | ||
By: |
/s/ Steven M. Sterin |
|
Steven M. Sterin | ||
President and Chief Financial Officer |
Signature Page
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
Schedule I
Pending Environmental Litigation
For Initial Contribution Agreement listed on Schedule VII :
None.
For Amorco Contribution Agreement listed on Schedule VII :
None.
For Long Beach Contribution Agreement listed on Schedule VII :
The soil and groundwater on the southern central portion of the site near the 24-inch crude oil line have been impacted with hydrocarbons from a release from the line first observed in September 2011. The California Regional Water Quality Control Board issued an Investigative Order dated September 30, 2011 and to date all requirements of the order have been met. Additional investigative or remedial activities may be required.
For Anacortes Rail Facility Contribution Agreement listed on Schedule VII :
None.
For BP Carson Tranche 1 Contribution Agreement listed on Schedule VII :
The environmental indemnification provisions of the Carson Assets Indemnity Agreement dated as of December 6, 2013 ( Carson Assets Indemnity Agreement ), among the Partnership, the General Partner, Tesoro Logistics Operations LLC (the Operating Company ) and TRMC, supersede in their entirety the environmental indemnification provisions of Article III of the Fourth Amended and Restated Omnibus Agreement, except as otherwise expressly provided in the Carson Assets Indemnity Agreement.
For BP Carson Tranche 2 Contribution Agreement listed on Schedule VII :
The environmental indemnification provisions of the Carson Assets Indemnity Agreement supersede in their entirety the environmental indemnification provisions of Article III of the Fourth Amended and Restated Omnibus Agreement, except as otherwise expressly provided in the Carson Assets Indemnity Agreement.
For West Coast Assets Contribution Agreement listed on Schedule VII:
None.
Schedule I- Page 1 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
For 2015 Line 88 and Carson Tankage Contribution Agreement listed on Schedule VII:
None.
For 2016 Alaska Assets Contribution Agreement listed on Schedule VII:
KENAI TANKAGE: Andeavor, Tesoro Alaska, TRMC, the Partnership and the General Partner are subject to a pending consent decree with the United States Environmental Protection Agency and the Department of Justice pursuant to which injunctive relief will be ordered with respect a number of refineries (the 2016 Environmental Consent Decree).
ANCHORAGE AND FAIRBANKS TERMINALS: Andeavor, Tesoro Alaska, TRMC, the Partnership and the General Partner are subject to the pending 2016 Environmental Consent Decree pursuant to which injunctive relief will be ordered with respect a number of refineries.
The indemnification obligations of the Andeavor Entities under Section 3.1(a) of the Fourth Amended and Restated Omnibus Agreement with regard to the 2016 Environmental Consent Decree are limited as provided in Schedule IX.
For Martinez Assets Contribution Agreement listed on Schedule VII:
Andeavor, Tesoro Alaska, TRMC, the Partnership and the General Partner are subject to the 2016 Environmental Consent Decree.
For Assets owned by WNRL on the Closing Date of the Merger Agreement and acquired by the Partnership pursuant to the Merger Agreement by virtue of its acquisition of WNRL thereunder:
The environmental indemnification provisions in Article VI of the Sponsor Equity Restructuring Agreement dated August 13, 2017 (SERA) between Andeavor, Andeavor Logistics LP and Tesoro Logistics GP, LLC supersede in their entirety the environmental indemnification provisions of Article III of the Fourth Amended and Restated Omnibus Agreement, other than Section 3.5(b), and shall be the exclusive provisions for all indemnification obligations relating to the subject matter of the indemnities so provided in Article VI of the SERA.
For 2017 Anacortes Assets Contribution Agreement listed on Schedule VII:
1. |
In July 2016, the US EPA and the U.S. Department of Justice announced a $425 million settlement with TRMC, including the TRMC Anacortes Refinery, in relation to violations of the Clean Air Act. The settlement (the Consent Decree) with the U.S. Department of Justice requires that the storage tanks be added to the Refinerys LDAR program and be monitored regularly for leaks. Some valve locations are difficult to monitor and may require relocation nearer to grade. These locations have been identified and will be addressed when the tanks are taken out of service during inspections. Per the Consent Decree, the Refinery must install closed-purge, closed-loop, or closed-vent samplers at all storage tanks by 2021. According to facility representatives, there are 42 tanks left to retrofit. |
Schedule I- Page 2 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
2. |
The recent Consent Decree with the U.S. Department of Justice has required that the Refinery perform a BWON (Benzene Waste Operations National Emission Standards for Hazardous Air Pollutants) Audit to recalculate the Total Annual Benzene amount and the total benzene emitted under the 2 Mg per year exemption. During this process, the Refinery determined that it exceeded the 2 Mg exemption and reported the exceedance to NWCAA in the 2016 Annual Compliance Certification air operating permit. |
For 2018 Assets Contribution Agreement listed on Schedule VII:
1. |
With respect to the Mandan Rail Rack and Trackage and the Salt Lake Rail Rack and Trackage (each as defined in the 2018 Assets Contribution Agreement), an August 2013 Fuels Consent Decree contains provisions that apply to tanks storing Conventional Gasoline. Capital Improvements and Audits have been performed under the Consent Decree, but the tanks are still subject to a mandated System-Wide Compliance Plan for sampling tank contents. |
2. |
With respect to the LARW Refinery Unit, the LARC Refinery Unit, and the LA Refinery Interconnecting Pipeline (each as defined in the 2018 Assets Contribution Agreement), litigation by environmental advocacy group(s), CBE v. SCAQMD, challenging the LARIC Environmental Impact Review for combining the LARW Refinery Unit and the LARC Refinery Unit. Contests anything within scope of that EIR, including LA Refinery Interconnecting Pipeline connections. |
3. |
For LARC Refinery Unit operations and assets only, the 2001 EPA Consent Decree entitled U.S. and the State of Indiana, State of Ohio, and the Northwest Air Pollution Authority, Washington v. BP Exploration & Oil Co . |
4. |
LARC Tankage (as defined in the 2018 Assets Contribution Agreement) was issued Cleanup and Abatement Order (CAO) No. 90-121, dated 22 August 1990. |
5. |
Certain of the Assets (as defined in the 2018 Assets Contribution Agreement) are subject to a 2016 Environmental Consent Decree with the United States Environmental Protection Agency and the Department of Justice. |
Schedule I- Page 3 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
Schedule II
Environmental Matters
For Initial Contribution Agreement set forth on Schedule VII :
1. Anchorage #1 Terminal soil and groundwater have been impacted by gasoline and diesel releases from previously buried pipelines. The site is considered characterized and is currently undergoing removal of product from the water table, groundwater treatment, and long-term monitoring.
2. Anchorage #2 Terminal soil and groundwater have been impacted by gasoline releases occurring prior to Andeavors purchase of the facility. The site is considered characterized and is currently undergoing groundwater monitoring and treatment. Off-site groundwater investigations are scheduled for 2012.
3. Stockton Terminal soil and groundwater have been impacted by gasoline and diesel releases from pipelines and/or product storage tanks. The site is considered substantially characterized and is undergoing groundwater treatment and groundwater monitoring. Off-site groundwater impacts are commingled with neighboring petroleum storage terminals.
4. Burley Terminal groundwater was impacted by gasoline releases occurring prior to Andeavors purchase of the facility. Groundwater impacts were commingled with neighboring petroleum storage terminals. Hydrocarbon concentrations in groundwater samples do not exceed previously established target levels for groundwater and surface water protection. Regulatory closure is pending.
5. Wilmington Sales Terminal soil and groundwater have been impacted by gasoline releases occurring prior to Andeavors purchase of the facility. Groundwater investigation and monitoring is on-going. Andeavor is indemnified by the previous owner for Investigation and remediation obligations.
6. Salt Lake City Terminal soil and groundwater have been impacted by gasoline and diesel releases from pipelines and/or product storage tanks occurring prior to Andeavors purchase of the facility. The site is considered characterized and is currently undergoing removal of product from the water table and long-term monitoring. There are no known soil or groundwater impacts at the Northwest Crude Oil tank farm.
7. The Stockton Terminal emits volatile organic compounds (VOCs) below major source emission criteria. In 2010, the San Joaquin Air Quality Management District announced it is reducing its major source threshold. When the Stockton Terminal expands its operations or increases throughput, the potential to emit VOC will increase and the Stockton terminal will become subject to regulation as a major source. This will require a Title V Air Operating Permit. In addition, the Stockton facility will be required to install an automated continuous emission monitor at a cost of approximately $75,000.
Schedule II- Page 1 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
For Amorco Contribution Agreement set forth on Schedule VII :
1. The soil and groundwater on the site of the Tankage, as defined in the Amorco Contribution Agreement, have been impacted by methyl tertiary butyl ether releases from previously buried pipelines. The site is considered characterized and is currently undergoing removal of methyl tertiary butyl ether from the water table, groundwater treatment, and long-term monitoring.
2. Any environmental violation or contamination due to SHPL, as defined in the Amorco Contribution Agreement, being underground prior to the Closing Date.
For Long Beach Contribution Agreement listed on Schedule VII :
1. Any environmental violation or contamination, as defined in the Long Beach Contribution Agreement, prior to the Closing Date.
2. Any anomalies in the Pipeline System that require repair as discovered by the first internal line inspection of any portion of the Pipeline System for which TRMC is notified in writing prior to the First Deadline Date.
For Anacortes Rail Facility Contribution Agreement listed on Schedule VII :
None.
For BP Carson Tranche 1 Contribution Agreement listed on Schedule VII :
The environmental indemnification provisions of the Carson Assets Indemnity Agreement supersede in their entirety the environmental indemnification provisions of Article III of the Fourth Amended and Restated Omnibus Agreement, except as otherwise expressly provided in the Carson Assets Indemnity Agreement.
For BP Carson Tranche 2 Contribution Agreement listed on Schedule VII :
The environmental indemnification provisions of the Carson Assets Indemnity Agreement supersede in their entirety the environmental indemnification provisions of Article III of the Fourth Amended and Restated Omnibus Agreement, except as otherwise expressly provided in the Carson Assets Indemnity Agreement.
Schedule II- Page 2 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
For West Coast Assets Contribution Agreement listed on Schedule VII:
1. Nikiski Terminal. Subsurface soil and groundwater has not been assessed at this facility. There have been no historic releases that have prompted a soil and groundwater investigations. The area within the tank containment berms was lined with low-permeability soils in the early 1990s. The loading rack, fuel filters and piping manifolds are above concrete secondary containment.
2. Anacortes Light Ends Rail Facility and planned diesel truck rack areas. Subsurface soil and groundwater has not been assessed at this area of the Anacortes refinery. There have been no historic releases that have prompted a soil and groundwater investigation.
3. Anacortes Storage Facility . Historic tank overtopping events and tank bottom corrosion releases have impacted soil and groundwater in the shore tank area of the Anacortes refinery. Groundwater near the shore tanks is monitored for natural attenuation. Groundwater between the tanks and the nearby shoreline has not been characterized, however the hydrocarbon concentrations in this area is not expected to be a threat to human health or the environment.
4. Martinez Refinery LPG Loading Area . Past waste disposal and hydrocarbon releases have impacted areas surrounding the Martinez Refinery LPG loading rack, pad and tanks. Areas north and northeast of the rack were used for past waste disposal. There are documented intra-refinery pipeline releases in the north and western boundaries of the LPG rack concrete pad. The refinery plans to excavate and cap the nearby waste disposal area in 2017. The pipeline releases are being remediated as part of the overall Martinez refinery cleanup. Soil and groundwater directly beneath the loading rack, propane tanks and truck pad have not been sampled.
5. Tesoro Alaska Pipeline.
|
The pump station for the Tesoro Alaska Pipeline is adjacent to the Kenai Refinery Lower Tank Farm. Multiple historic tank and buried pipeline releases have impacted soil and groundwater in the area; however there are no documented releases from the pipeline pump station. The soil and groundwater surrounding the pump station is considered characterized and undergoing groundwater monitoring and treatment. |
|
A pipeline release in 2001 resulted in soil, groundwater and surface water impacts in an undeveloped area of the Kenai Peninsula. The quantity of the release is not known. Soil surrounding the release was excavated and stockpiled at the Kenai Refinery while groundwater and surface water were remediated on-site. The Alaska Department of Environmental Conservation issued a No Further Action letter for this cleanup effort in 2008. There are no other known release sites on the pipeline between the Kenai Refinery and Anchorage. |
Schedule II- Page 3 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
|
Historic spills and releases have impacted the Anchorage #1 terminal, including past releases from the Tesoro Alaska Pipeline receiving station. Groundwater remediation monitoring is ongoing across the Anchorage #1 terminal. In addition, a soil vapor venting system is being installed to address a flame suppressant compound detected in soils near the receiving station control room. |
For 2015 Line 88 and Carson Tankage Contribution Agreement listed on Schedule VII:
None
For 2016 Alaska Assets Contribution Agreement listed on Schedule VII:
KENAI TANKAGE:
Area of significant groundwater and soil impacts: (1) lower tank farm groundwater impact source area including 1988 jet fuel release and unknown light products release in area of Tank 63, (2) process unit historic releases from oily water sewer system including releases from failed grout in subsurface sewer hubs, (3) groundwater issues generally 35 to 40 feet below ground surface and groundwater impacts in three water-bearing zones below refinery and off-site and (4) possible contributor to refinery-wide groundwater impacts.
ANCHORAGE AND FAIRBANKS TERMINALS:
Pursuant to the Contribution, Conveyance and Assumption Agreement effective as of July 1, 2016 (the Alaska Assets Contribution Agreement ), among Tesoro Logistics LP, a Delaware limited partnership (the Partnership ), Tesoro Logistics GP, LLC, a Delaware limited liability company and the general partner of the Partnership (the General Partner ), Tesoro Logistics Operations LLC, a Delaware limited liability company (the Operating Company ), Tesoro Alaska Company LLC, a Delaware limited liability company ( TAC ) and Tesoro Corporation, a Delaware corporation ( Tesoro ), TAC contributed 100% of the limited liability company interests (the TAT Interests ) in Tesoro Alaska Terminals LLC, a Delaware limited liability company ( TAT ), to the General Partner, the General Partner contributed 100% of the TAT Interests to the Partnership, and the Partnership contributed 100% of the TAT Interests to the Operating Company, all on the terms and conditions set forth in that contribution agreement.
Prior to the date of the Alaska Assets Contribution Agreement, TAT acquired certain assets defined as the Anchorage and Fairbanks Terminals in the Alaska Assets Contribution Agreement from Flint Hills Resources Alaska, LLC pursuant to an Asset Purchase Agreement, dated November 20, 2015 (the Flint Hills APA ), by and between Flint Hills Resources Alaska, LLC and TAC. As described in the Flint Hills APA, the following liabilities existed at the Anchorage and Fairbanks Terminals prior to the closing of the transactions contemplated under the Flint Hills APA:
Schedule II- Page 4 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
Anchorage Terminal :
1. |
Deviations reported under Anchorage Air Permit No. AQ0235TVP03, Issue Date: April 2, 2014, Effective Date: May 2, 2014 |
|
Flint Hills Resources Alaska, LLC did not submit a report as required under Condition 68 based upon defects listed in Condition 6.3 discovered during the out of service inspection conducted on T-4216 during July 2014. The deviation report covering this incident is set out in the Flint Hills Resources Alaska, LLC deviation report dated January 29, 2015. |
|
Flint Hills Resources Alaska, LLC did not report all emissions or operations that exceed or deviate from the requirements of its permit within 30 days of the end of the month in which the excess emission or deviation occurred. The deviation report covering this incident is set out in the Flint Hills Resources Alaska, LLC deviation report dated January 29, 2015. |
|
Flint Hills Resources Alaska, LLC did not perform preventative maintenance in accordance with 40 CFR Subpart ZZZZ within 365 days of effective date on EU IDs 7, 8, and 9. The maintenance was performed 2 days after that date. The deviation report covering this incident is set out in the Flint Hills Resources Alaska, LLC deviation report dated July 30, 2014. |
|
Flint Hills Resources Alaska, LLC did not report all emissions or operations that exceed or deviate from the requirements of this permit within 30 days of the end of the month in which the excess emissions or deviation occurred. The deviation report covering this incident is set out in the Flint Hills Resources Alaska, LLC deviation report dated January 29, 2015. |
|
On April 10, 2014. ADEC issued Flint Hills Resources Alaska, LLC a letter of Acceptance of the Anchorage Facility Compliance Certificate, and identified 4 deviations from the air permit. |
2. |
In a letter dated July 22, 2015, the ADEC indicated that the Anchorage Terminal Oil Discharge Prevention and Contingency Plan needed the additional information specified in the July 22, 2015 letter to be submitted in order for the plan renewal to be approved. On September 2, 2015, the facility submitted the requested information and is awaiting ADEC approval. |
3. |
On May 15, 2015 Flint Hills Resources Alaska, LLC received a notice of failure to pay Air Quality fees relating to Air Permit No. AQ0235TVP03. Those fees were paid on June 2, 2015. |
4. |
In a letter dated October 1, 2015, ADEC approved the facilitys request for a waiver of secondary containment, subject to the terms of the letter, until March 31, 2016. |
Schedule II- Page 5 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
5. |
On July 24, 2014 ADEC issued a letter to Flint Hills Resources Alaska, LLC advising that Flint Hills Resources Alaska, LLC is a responsible party under Alaska law for the July 22, 2014 Anchorage Facility Jet Fuel release. |
6. |
On April 21, 2014, ADEC issued a letter to Flint Hills Resources Alaska, LLC advising it that Flint Hills Resources Alaska, LLC is a responsible party under Alaska law for the April 20, 2014 gasoline release. |
Fairbanks Terminal :
(i) |
In a letter dated May 29, 2015, ADEC detailed items that needed correction related to ADECs May 19, 2015 inspection of the terminal and its Oil Discharge Prevention and Contingency Plan. The facility has submitted a response to ADEC and is working with the agency to correct the identified items. |
(ii) |
On April 24, 2014 ADEC advised Flint Hills Resources Alaska, LLC that the Primary Response Action Contractor is no longer an ADEC approved and registered contractor. Therefore, Flint Hills Resources Alaska, LLCs Fairbanks Facility Oil Discharge Prevention and Contingency Plan was out of compliance and needed amendment. |
(iii) |
Two underground storage tanks are located at the Fairbank Terminal, both of which are used to store heating oil. One underground storage tank was removed from the Purchased Site prior to Flint Hills Resources Alaska, LLCs leasehold. |
(iv) |
Asbestos materials has been identified and are known to be located at the Anchorage Facility in the following locations: |
Material Type |
Location(s) |
EPA Category |
||
Gray Caulk (10% Chrysotile) |
Fire Pump Room, Warehouse | Category II | ||
Sheetrock (4% Chrysotile) |
Boiler Room, Warehouse | Category II | ||
Brown Insulation (5% Chrysotile) |
Heat Exchanger Building | Category I | ||
Window Caulk (3% Chrysotile) |
Warehouse | Category II | ||
Gray Mastic (10% Chrysotile) |
Concrete Pad Near Tank 4136 | Category II | ||
Black Mastic (6% Chrysotile) |
Concrete Pad Near Tank 4136 | Category II | ||
Black Mastic (17% Chrysotile) |
Exchanger on West Side of Asphalt Tank Farm | Category II | ||
Black Mastic (6% Chrysotile) |
Piping located near railroad tracks on Ocean Dock Road. | Category II | ||
Black Mastic (20% Chrysotile) |
Piping on side of Tank 4263, East Tank Farm | Category II | ||
White Insulation (60% Chrysotile) |
Piping on side of Tank 4263, East Tank Farm | Category I | ||
Mastic/Insulation (20% Chrysotile) |
Top skirt of Tank 4263, East Tank Farm | Category I | ||
Mastic (15% Chrysotile) |
Sections of buried pipelines | Category II |
Schedule II- Page 6 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
In the Flint Hills APA, Flint Hills Resources Alaska, LLC noted that it had no knowledge of other asbestos-containing material currently located at the sites purchased by TAT. However, Flint Hills Resources Alaska, LLC noted that asbestos material has been removed in the past during renovation and/or demolition work at the purchased sites.
Flint Hills Resources Alaska, LLC stated in the Flint Hills APA that it has no knowledge of polychlorinated biphenyls ( PCB ) material or equipment containing PCBs existing at the purchased sites. Flint Hills Resources Alaska, LLC, however, noted that it understands that PCBs may have been present under prior lessees operations of the sites but has no direct knowledge of this.
Flint Hills Resources Alaska, LLC stated in the Flint Hills APA that it understands disposal areas to include areas where Hazardous Materials have been Released. See Section 3.11(h) of Seller Disclosure Schedule under the Flint Hills APA for Flint Hills Resources Alaska, LLCs knowledge regarding disposal areas on the Purchased Sites. In addition, a significant amount of fill material was used to augment the elevation and stability of the soils beneath the Anchorage facility. This fill included debris and materials such as such as wood, metal, and concrete. Flint Hills Resources Alaska, LLC stated in the Flint Hills APA that it has no knowledge that the fill material contained Hazardous Materials when it was placed on the site.
Flint Hills Resources Alaska, LLC stated in the Flint Hills APA that:
1. |
On July 24, 2014 ADEC issued a letter to Flint Hills Resources Alaska, LLC advising that Flint Hills Resources Alaska, LLC is a responsible party under Alaska law for the July 22, 2014 Anchorage Facility Jet Fuel release. |
2. |
On April 21, 2014, ADEC issued a letter to Flint Hills Resources Alaska, LLC advising it that Flint Hills Resources Alaska, LLC is a responsible party under Alaska law for the April 20, 2014 gasoline release. |
3. |
In a letter dated July 22, 2015, ADEC indicated that the Anchorage Terminal Oil Discharge Prevention and Contingency Plan needed the additional information specified in the July 22 letter to be submitted in order for the plan renewal to be approved. On September 2, 2015, the facility submitted the requested information and is awaiting ADEC approval. |
Flint Hills Resources Alaska, LLC assumed all environmental liabilities known at the time the Purchased Facilities were acquired from Williams in 2004.
Schedule II- Page 7 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
For Martinez Assets Contribution Agreement listed on Schedule VII:
MARTINEZ TANKAGE:
The following pending refinery notices of violation:
1. |
Notice issued April 16, 2013 by the Bay Area Air Quality Management District ( BAAQMD ) related to liquid discovered on internal floating roof of Tank 870; |
2. |
Notice issued February 11, 2014 by BAAQMD related to a leaking PV valve on Tract 3 VRS Tank 613; and |
3. |
Notice issued August 12, 2014 by BAAQMD related to a 1 ⁄ 2 inch gap at well sliding cover on Tank 692. |
Existing soil and groundwater contamination has been identified and is being managed under existing programs and agreements by TRMC and third parties, within three (3) solid waste management units located on Tract 3 of the Licensed Premises (as defined in the November 21, 2016 License Agreement between TRMC and the Operating Company)Anacortes, on which the crude oil, feedstock and refined product storage tankage are situated, with such waste management units being identified as areas within red or green boundary lines on the WMU HAZARD MAP-Orientation Unit Or System Overall General Sheets, as reflected on the Golden Eagle Refinery Plat, Drawing Number 020-DA-518-001, as copy of which is shown below.
Schedule II- Page 8 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
For Assets owned by WNRL on the Closing Date of the Merger Agreement and acquired by the Partnership pursuant to the Merger Agreement by virtue of its acquisition of WNRL thereunder:
None. The environmental indemnification provisions in Article VI of the Sponsor Equity Restructuring Agreement dated August 13, 2017 (SERA) between Andeavor, Andeavor Logistics LP and Tesoro Logistics GP, LLC supersede in their entirety the environmental indemnification provisions of Article III of the Fourth Amended and Restated Omnibus Agreement, other than Section 3.5(b), and shall be the exclusive provisions for all indemnification obligations relating to the subject matter of the indemnities so provided in Article VI of the SERA.
For 2017 Anacortes Assets Contribution Agreement listed on Schedule VII:
1. |
The transfer piping on the wharf has not been reviewed for risk of surge. In the event of misalignment during cargo operations or accidental valve closure on vessel or shore there is a potential to overpressure the transfer piping. A surge study will be conducted and any required modifications will be undertaken. |
2. |
There is a seep of oil through the north secondary containment dike for Tanks 6 and 7 and into the adjacent storm water swale. Absorbent booms are placed at intervals in the swale to contain the oil. Any oil that makes its way to the wastewater treatment facility can be managed at the flume. Additional information about the seep, as well as investigation efforts to determine the source, was provided in a memo from Pacific Groundwater Group. Investigation efforts have not yet identified the source of the seep. TRMC personnel have reported the seep to the Washington State Department of Ecology Industrial Section. |
3. |
The tank containment dikes are coated with asphalt and roofing tar and the asphalt coating is deteriorating on many of the dikes, vegetation is encroaching, and some minor sloughing was noted. If not maintained, further erosion may occur to containment dikes and there are potential compliance risk related to 40 CFR 121, SPCC, and WAC 173-180-320. A tank containment dike erosion control program is in place but needs to be accelerated to mitigate erosion issues over next three years. |
4. |
Certain floating roof deck fittings do not meet the requirements of Refinery MACT Subpart CC for storage tanks. According to TRMC representatives, seals/gaskets need to be replaced on 27 tanks in the Assets covered by the 2017 Anacortes Contribution Agreement. |
5. |
Per the Consent Decree mentioned in Schedule 1, the Refinery must install closed-purge, closed-loop, or closed-vent samplers at all storage tanks by 2021. According to facility representatives, there are 42 tanks left to retrofit in the Assets covered by the 2017 Anacortes Contribution Agreement. |
6. |
Several out-of-service assets are included in the drop, including 17 tanks, the asphalt loading rack, pipelines, the red dye shed, and lead shed areas. TRMC has indicated a total of 17 out-of-service tanks (Tanks 34, 46, 47, 48, 55, 62, 88, 89, 90, 95, 98, 99, 110, 147, 159, 232, and 249). |
Schedule II- Page 9 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
7. |
Propane and butane vessels were observed to potentially not have drain-away protection that is sized and configured for one-half the largest vessel. A release should be able to drain away from the vessels to prevent further releases, explosions, and fires. |
For 2018 Assets Contribution Agreement listed on Schedule VII:
Defined terms used in this portion of Schedule II without definition will have the meaning given such terms in the 2018 Assets Contribution Agreement.
LOS ANGELES REFINERY (CARSON AND WILMINGTON UNITS)
1. |
On August 22, 1990, the Los Angeles Regional Water Quality Control Board (RWQCB) issued Cleanup and Abatement Order (CAO) No. 90-121 to Tesoro Refining & Marketing Company LLC (TRMC) for the LARC Refinery Unit. The CAO requires investigation and remediation of light non-aqueous phase liquid (LNAPL) on the water table and groundwater containing dissolved-phase petroleum hydrocarbons and methyl tert-butyl ether (MTBE). TRMC operates a LNAPL and groundwater recovery system predominantly along the western boundary of LARC Refinery Unit. LNAPL also is removed from selected wells within the process and tank farm areas via vacuum truck. Other remediation efforts at the LARC Refinery Unit include vapor-phase hydrocarbon extraction from soils and enhancing natural biologic degradation in groundwater. Groundwater and soil remediation and LNAPL removal will be ongoing. |
2. |
Subsurface environmental investigation at the LARW Refinery Unit began in the early 1980s. These investigations revealed soil and groundwater impacts from dissolved petroleum hydrocarbons, MTBE, tert-butyl alcohol (TBA) and LNAPL. Shell Oil Products US (SOPUS) is responsible for soil and groundwater remediation originating prior to May 2007. SOPUS has recovered LNAPL using a total fluids extraction system and tracked LNAPL recovery rates since 2010. A Remediation Feasibility Study was submitted by SOPUS to the RWQCB in August of 2017. SOPUS presented four remedy packages to meet remedy objectives; however, additional data are needed prior to designing a total fluids extraction or dual pump liquid extraction. Releases from TRMC operations have not commingled with impacts attributable to SOPUS. |
3. |
Groundwater impacts at the LARC Refinery Unit and the LARW Refinery Unit have migrated downward and offsite. SOPUS, TRMC and Kinder Morgan have modeled groundwater flow and continue to document natural biodegradation in the lower aquifers. |
4. |
On January 4, 2010, TRMC notified the California Emergency Management Agency of a naphtha release from LARW Refinery Unit Tank 80214. The release was initially estimated at 15,200 barrels. The RWQCB issued CAO R4-2011-0037 to TRMC on April 11, 2011. The CAO required the assessment and delineation of soil and groundwater impacts associated with this release. In response, TRMC investigated the Tank 80214 area and constructed a LNAPL and groundwater extraction system, which is under continuous operation. Remedial efforts are on-going, however active pumping is expected to be complete within 10 years. |
Schedule II- Page 10 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
5. |
Underground piping is to be removed/decommissioned under Cleanup Abatement Order (CAO), Los Angeles Plant (File No. 85-20) issued by the California Water Quality Board, Los Angeles Region Order 88-70 was adopted June 27, 1988. Between 2003 and 2017, approximately 89,895 feet of aboveground pipeline was installed and approximately 69,182 feet of underground pipeline was decommissioned. Additional underground piping must be removed under this program. |
MANDAN REFINERY
1. |
On October 16, 2018 the North Dakota Department of Health (NDOH) issued a RCRA Hazardous Waste Storage and Treatment and Corrective Action Permit (HW-002) for operations at the Mandan Refinery. The Permit requires the investigation and mitigation of hazardous wastes and hazardous waste constituents released from facility waste management units, including the wastewater collection system below areas of refinery operations and petroleum storage. Mitigation measures include collecting groundwater from down-gradient recovery trenches and monitoring groundwater twice per year. Continued groundwater monitoring, operation of the groundwater trench collection system, and annual reporting to the NDOH is expected to be on-going. |
SALT LAKE REFINERY
1. |
TRMC operates a remediation system to contain and recover LNAPL and groundwater at the Salt Lake Refinery. This recovery and monitoring system is operated under a Stipulated Consent Order (SCO), dated January 9, 1992, between the Utah Solid and Hazardous Waste Control Board and Amoco Oil Company, the former refinery owner. Under the SCO, Amoco completed a RCRA Facility Investigation and developed a Corrective Action Plan (CAP) that included a groundwater remediation/containment system, tracking of soil impacts and establishing deed restrictions to limits property and groundwater use. The LNAPL extraction system operates primarily along the western boundary of the refinery, including the west side of the storage tank area. Dissolved petroleum hydrocarbons are no longer detected in site groundwater. As a result, TRMC is currently in discussions with the State of Utah Department of Environmental Quality, Division of Waste Management and Remediation Control, to update the SCO and CAP into a Site Management Plan and Environmental Covenant. It is unknown whether the State will agree with TRMCs proposed and revised technical approach. |
2. |
Asphalt seeps within the bermed area at Tank 204 can impact operations within the containment area. The Salt Lake Refinery is currently removing residual pockets of asphalt through routine maintenance. The asphalt has not migrated through the containment area. Asphalt seeps are not expected to infiltrate through soils to the water table. Groundwater from monitoring wells located near Tank 204 do not contain dissolved petroleum hydrocarbons or LNAPL. |
Schedule II- Page 11 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
3. |
LNAPL and water have been observed within the secondary containment at Tank 247. The wastewater treatment facility capacity at the Salt Lake Refinery can be overwhelmed following heavy precipitation events. The backup of hydrocarbon containing wastewater into the tank berm area reduces the secondary containment capacity and could result (temporarily) in non-compliance with the SPCC requirements. Impacts to groundwater and soil from pooled wastewater and LNAPL are unknown and could require additional remediation. |
4. |
Laboratory instruments containing free-phase mercury were once used within the Bulk Loading Rack (BLR) Control Building. Impacts from this practice were discovered on December 1, 2014. The free phase mercury in soil was remediated in the immediate area of the BLR, and interior floors were cleaned and sealed. Mercury remains in the shallow soil surrounding the north side of the BLR Control Building; however institutional controls including an asphalt capare in place to prevent earthwork or disturbing the area without approval and permitting. Post-remediation indoor air sampling demonstrated that the BLR Control Building is suitable for worker occupancy. |
JAL NGL STORAGE FACILITY
1. |
The facility records at the JAL NGL Storage Facility include the following information regarding releases, impacts or potential impacts: |
a) |
A former compressor unit leaked an unknown quantity of oil containing poly-chlorinated biphenyls (PCBs). |
b) |
The southwest corner of the property is used for construction debris, out of service equipment, transformers and storage of other discarded materials. Contaminated soil also is placed in this area. |
c) |
Groundwater is impacted by former operation of brine ponds. Kinder Morgan is responsible for these groundwater impacts. |
d) |
Wastes, including water, solids, and lubricating oils, were previously disposed in an on-site injection well. |
WINGATE TERMINAL
1. |
In 2015, the New Mexico Oil Conservation Division issued Abatement Plan AP-121 to Western Refining. Site groundwater impacts will be addressed after the facility is closed or if contamination migrates off-site. Until closure of the facilitys active operations, the AP-121 requires monitoring eight wells and submitting a report each year. Groundwater monitoring and annual reporting is expected to be on-going. |
2. |
Asbestos is present at the Wingate Terminal, including buildings that are cladded in transite and pipes insulated with asbestos wrap. Currently, asbestos is kept sealed and managed in place. |
Schedule II- Page 12 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
3. |
Two burn pits were used before the existing flare system was constructed. Flare pits may be a source of surface and subsurface soil impacts. |
STATELINE NM TERMINAL
1. |
A sump was reportedly overfilled on March 8, 2018 due to a power outage. This caused a release of 24.4 bbl of crude oil, which flowed across the terminal property and to adjacent undeveloped ranch land. Remedial actions are in process. |
Schedule II- Page 13 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
Schedule III
Pending Litigation
For Initial Contribution Agreement listed on Schedule VII :
None.
For Amorco Contribution Agreement listed on Schedule VII :
None.
For Long Beach Contribution Agreement listed on Schedule VII :
None.
For Anacortes Rail Facility Contribution Agreement listed on Schedule VII :
None.
For BP Carson Tranche 1 Contribution Agreement listed on Schedule VII:
None.
For BP Carson Tranche 2 Contribution Agreement listed on Schedule VII:
None.
For West Coast Assets Contribution Agreement listed on Schedule VII:
None.
For 2015 Line 88 and Carson Tankage Contribution Agreement listed on Schedule VII:
None.
For 2016 Alaska Assets Contribution Agreement listed on Schedule VII:
KENAI TANKAGE: None.
ANCHORAGE AND FAIRBANKS TERMINALS: None.
For Martinez Assets Contribution Agreement listed on Schedule VII:
None.
Schedule III- Page 1 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
For Assets owned by WNRL on the Closing Date of the Merger Agreement and acquired by the Partnership pursuant to the Merger Agreement by virtue of its acquisition of WNRL thereunder:
The Additional Indemnification provisions in Article VI of SERA supersede in their entirety the indemnification provisions of Section 3.5(a) of the Fourth Amended and Restated Omnibus Agreement, and shall be the exclusive provisions for all indemnification obligations relating to the subject matter of the indemnities so provided in of Section 3.5(a) of the Fourth Amended and Restated Omnibus Agreement.
For 2017 Anacortes Assets Contribution Agreement listed on Schedule VII:
None
For 2018 Assets Contribution Agreement listed on Schedule VII:
1. |
Great Northern Gathering & Marketing LLC vs. Mountain Peak Builders, LLC , Case No. 27-2015-CV-00222, District Court, McKenzie County, North Dakota; Mountain Peak Builders, LLC vs. Great Northern Gathering & Marketing LLC , Case No. 4:15-cv-034, the United States District Court of North Dakota; Cross-Country Pipeline Supply Co., Inc. v. Great Northern Gathering & Marketing LLC and Great Northern Midstream LLC , Civil Case No. 27-2017-CV-00305, in the District Court, McKenzie County, North Dakota. Three related suits regarding construction liens on certain Tesoro Great Plains Midstream LLC assets in North Dakota relating to work for the prior owner (all fully indemnified and being defended by third party/sellersecured by escrow). |
2. |
Efrain Onsurez v Rangeland Energy Litigation in which plaintiff claims that Rio Pipeline (fka Rangeland) drivers are trespassing on his land and related grievances. Affects Rio Pipeline assets in Texas and New Mexico. |
3. |
Other litigation scheduled on Schedule I (Environmental Litigation). |
4. |
The following HR lawsuits and pending administrative claims: |
(a) |
Lawsuits: |
Wuestenfeld v. Rangeland Former contractor at Rio Pipeline (fka Rangeland) (Midland Terminal) alleges sex harassment and retaliation.
LAR :
Valliere/Bonner v. TRMC Class action lawsuit alleging failure to provide compliant rest periods and associated Labor Code violations.
Kairn v. TRMC Two lawsuits, one in state court and one in federal court. Kairn alleges gender discrimination in the state court case, which is scheduled to go to trial in November 2018. The federal court case alleging gender discrimination and retaliation is stayed.
Schedule III- Page 2 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
Tate vs. Tesoro Corp Complaint names Tesoro Corporation on a joint employment theory and the putative class is defined as including a subclass of Brinderson class members who worked at a refinery owned by Tesoro in California (which would cover the LARW Refinery Unit and the LARC Refinery Unit). Tesoro is indemnified by Brinderson.
(b) |
Administrative Charges : |
Mandan Refinery :
Sprague former contractor alleges he was discriminated against due to his disability.
Salt Lake Refinery :
McArthur former SLC refinery employee alleges sexual harassment, age discrimination, and retaliation.
LARC/LARW Refinery Units :
Davis Employee alleges that he was not offered a pipefitter position due to discrimination based on race.
McGhee Employee alleges he was terminated due to his disability.
Wanis Employee alleges his termination was discriminatory on the basis of race, ancestry, national origin and religion.
Schedule III- Page 3 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
Schedule IV
Section 4.1(a): General and Administrative Services
(1) |
Executive management services of Andeavor employees who devote less than 50% of their business time to the business and affairs of the Partnership, including stock based compensation expense |
(2) |
Financial and administrative services (including, but not limited to, treasury and accounting) |
(3) |
Information technology services |
(4) |
Legal services |
(5) |
Health, safety and environmental services |
(6) |
Human resources services |
Section 4.1(c)(vii): Other Reimbursable Expenses
For Initial Contribution Agreement listed on Schedule VII :
None.
For Amorco Contribution Agreement listed on Schedule VII :
None.
For Long Beach Contribution Agreement listed on Schedule VII :
None.
For Anacortes Rail Facility Contribution Agreement listed on Schedule VII :
None.
For BP Carson Tranche 1 Contribution Agreement listed on Schedule VII :
None.
For BP Carson Tranche 2 Contribution Agreement listed on Schedule VII :
None.
Schedule IV- Page 1 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
For West Coast Assets Contribution Agreement listed on Schedule VII:
None.
For 2015 Line 88 and Carson Tankage Contribution Agreement listed on Schedule VII:
None.
For 2016 Alaska Assets Contribution Agreement listed on Schedule VII:
KENAI TANKAGE: None.
ANCHORAGE AND FAIRBANKS TERMINALS: None.
For Martinez Assets Contribution Agreement listed on Schedule VII:
None.
For Assets owned by WNRL on the Closing Date of the Merger Agreement and acquired by the Partnership pursuant to the Merger Agreement by virtue of its acquisition of WNRL thereunder:
None
For 2017 Anacortes Assets Contribution Agreement listed on Schedule VII:
None
For 2018 Assets Contribution Agreement listed on Schedule VII:
None
Schedule IV- Page 2 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
Schedule V
ROFO Assets
Asset |
Owner |
|
Nikiski Dock and Storage Facility (Nikiski, Alaska) A single-berth dock and storage facility located at the Kenai Refinery that includes five crude oil storage tanks with a combined capacity of approximately 930,000 barrels, ballast water treatment capability and associated pipelines, pumps and metering stations. The dock and storage facility receives crude oil from marine tankers and from local production fields via pipeline and truck, and also delivers refined products from the refinery to marine vessels. |
Tesoro Alaska |
Schedule V- Page 1 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
Schedule VI
Existing Capital and Expense Projects
For Initial Contribution Agreement listed on Schedule VII :
Expense Projects
None.
Capital Projects
1. That certain project related to AFE # 102120001, which provides for side stream ethanol blending into all gasoline at the Salt Lake City terminal by adding truck ethanol unloading capability, utilizing the existing premium day tank for ethanol and delivering premium direct from the Salt Lake City refinery tankage. New ethanol truck unloading facilities will be installed. New Pumps will also be installed for delivering higher volumes of premium gasoline from the Salt Lake City refinery to the Salt Lake City terminal. An ethanol injection skid will be installed along with piping changing to the existing Salt Lake City terminal to allow the ethanol to be injected in the gasoline stream. This project has been completed.
2. That certain project AFE# 112120005 at the Mandan refinery, to update additive equipment to allow the offering of Shell additized gasoline. This project has been completed.
3. That certain project related to AFE # 107120005, which provides for ratio ethanol blending into gasoline on the rack at the Burley, Idaho Terminal by adding truck ethanol unloading capability, adding tankage for ethanol storage and installing new ethanol meters associated with each gasoline loading arm. New ethanol truck unloading facilities will also be installed.
4. That certain project AFE# 104100015-M at the Mandan refinery, to update the truck rack sprinkler system. This project has been completed.
5. That certain project number AFE# 122120002 (TCM Idea# 2010113017) at the Mandan refinery, to upgrade the rack blending hydraulic system to reduce/eliminate inaccurate blends at the load rack.
6. That certain project number TCM Idea # 2011433001 at the Mandan refinery, to move the JP8 to new bay and have three bays for loading product across the rack. This project has been cancelled.
7. That certain project number TCM Idea # 2011432602 at the Stockton terminal, install a continuous vapor emission monitor on the vapor recovery unit for compliance with air quality regulations.
Schedule VI- Page 1 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
For Amorco Contribution Agreement listed on Schedule VII :
Expense Projects
All major expense projects that are within the scope of open Work Orders as of the applicable Closing Date.
Capital Projects
1. That certain project related to AFE# 097100014 and AFE# 107100014 at the Amorco terminal, which provide repairs and upgrades to the wharf regarding MOTEMS standards.
2. That certain project related to AFE# 112100001 at the Amorco terminal, which installs a jet mixer system for crude lab testing.
For Long Beach Contribution Agreement listed on Schedule VII :
Expense Projects
1. Any cost that may be incurred to adjust diesel fuel tank vents near light fixtures after a review is conducted and if action is deemed necessary.
2. Costs related to substantial repair or replacement project scheduled for 2012 and 2013 for the pipeline segments in the portion of the Southern California Edison right-of-way area immediately adjacent to the marine terminal to address corrosion, and include IO# 3021407 titled SCA Wilmington Edison Reroute and IO# 3021749 titled SCA. Edison Reroute 24 inch, 16 inch, 14 inch.
Capital Projects
1. That certain project related to AFE# 072104079LBT titled UG Piping LBT related to underground pipeline repairs at the Terminal. In addition, any subsequent new projects to address the same specific under-ground piping issues per AFE# 072104079LBT (i.e. a second phase UG Piping project) that would occur on or before the end of year 2015.
2. That certain project related to the TCM Idea# 2012433432 AFE# 125120020 titled LBT Berth 84a Loading Arm Replacement which repairs or replaces the loading arms at the Terminal and any related AFE project that will occur upon final project approval to substantially repair or replace the loading arms at the Terminal.
3. That certain project related to the TCM Idea# 2012433433 AFE# 125120021 titled LBT Berth 86 Loading Arm Replacement which repairs or replaces the loading arms at the Terminal and any related AFE project that will occur upon final project approval to substantially repair or replace the loading arms at the Terminal.
Schedule VI- Page 2 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
4. Any remaining costs of those certain projects related to the leak detection on the Terminal and Terminal Pipelines which are substantially complete and include AFE# 107110002, AFE# 117110001, AFE# 117110003, AFE# 117110002, and AFE# 125120002.
For Anacortes Rail Facility Contribution Agreement listed on Schedule VII :
Expense Projects
None.
Capital Projects
Any capital costs or expenses that may be incurred for the installation of a custody transfer meter related to the AFE# 125120017 titled CROF Custody Transfer Meter and Station.
For BP Carson Tranche 1 Contribution Agreement listed on Schedule VII :
Expense Projects
Expenses associated with the API 653 internal inspection, the Carson Crude Terminal Tank 401 (AFE# 13E1219120001BP/WBS 19125.E012.975) scheduled to start in November 2013, including without limitation, cleaning of such Tank (including any waste removal) and any repairs to such Tank required as a result of such inspection.
Capital Projects
None.
For BP Carson Tranche 2 Contribution Agreement listed on Schedule VII :
Expense Projects
1. All 2013 and 2014 costs related to AFE# 136104215BP-M (PRISM ID 32503) for a partial replacement of Rhodia Sulfuric Acid Line 29 will be reimbursed by TRMC to cover the 2014 expenditure of $1.1 million for line neutralization, the pig run and tie-ins. Subject to confirmation with the refinery on exact outage dates, the bulk of this cost will be incurred in March and April.
2. All 2013 costs or 2013 carry-over costs related to AFE# 13E1012000002BP-M12 & 13E1012000002BP-M5 PRISM ID 32518 (under the 2013 AFE # 13E1012000002BP) for the Manual Entry Corrosion Program at Terminal 2 will be reimbursed by TRMC. All 2014 costs will be covered by the Partnerships 2013 budget.
Schedule VI- Page 3 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
3. All remaining 2013 inspection and repair costs related to AFE# 13E1012000002BP-M2 (PRISM ID 32549) associated with the Marine Terminal 2 TK 218 API 653 Internal Inspection only (not including repairs at this point) will be reimbursed by TRMC. TRMC shall review and approve the tank repair scope and review inspection reports to prevent unnecessary upgrades or urban renewal.
4. All remaining 2013 inspection and repair costs related to AFE# 13E1212000001-M (PRISM ID 31418) associated with the Marine Terminal 2 TK 205 API 653 Internal Inspection only (not including repairs at this point) will be reimbursed by TRMC. TRMC shall review and approve the tank repair scope and review inspection reports to prevent unnecessary upgrades or urban renewal.
5. Remaining expenses related to AFE# 13E1179000001-M (PRISM ID 32040) to upgrade PLC systems in the LA Basin will be reimbursed by TRMC.
6. All remaining 2013 inspection and repair costs related to AFE# 13E1212000002-M (PRISM ID 31419) associated with the Marine Terminal 2 TK 217 API 653 Internal Inspection only (not including repairs at this point) will be reimbursed by TRMC. TRMC shall review and approve the tank repair scope and review inspection reports to prevent unnecessary upgrades or urban renewal.
7. All remaining expenses related to AFE# 136104222BP-M (PRISM ID 32556) associated with the Pipeline OQ Verification will be reimbursed by TRMC.
8. All remaining 2013 inspection and repair costs related to AFE# 13E1012000006-M (PRISM ID 31409) associated with the Carson Products TK VH1 API 653 Inspection only (not including repairs at this point) will be reimbursed by TRMC. TRMC shall review and approve the tank repair scope and review inspection reports to prevent unnecessary upgrades or urban renewal.
Capital Projects
1. Maintenance capital expenditures related to that certain AFE# 136104194BP-M (PRISM ID 32480) at Terminal 2 to replace all fire water piping at Berths 76, 77 and 78 areas of Terminal 2 in Long Beach, CA with new piping. This project will also replace all associated valves, fixtures, monitors, and fire-fighting accessories.
2. Maintenance capital expenditures related to that certain TCM Idea# 2013434229 (PRISM ID 25829) at Terminal 2 to replace the existing bladder type foam tank with two atmospheric tanks and foam skids located at either end of the facility along with new piping to support the installation.
Schedule VI- Page 4 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
3. Maintenance capital expenditures related to that certain TCM Idea# 2013434243 (PRISM ID 20054) at Terminal 2 to replace the existing loading arms at T2s Berth 77 and 78. The current parts are so old that they are no longer readily available, so in order to properly maintain this equipment to minimize down-time for repairs, these arms should be replaced with the newest models.
4. All capital expenditures related to that certain AFE# 136104077BP-M (PRISM ID 32481) for MOTEMS dock side piping upgrades at Terminal 2.
5. Maintenance capital expenditures related to that certain AFE# 145120008 (PRISM ID 32560) at Terminal 2 to replace the main 12kV electrical switchgear that experienced electrical damage due to several factors: nearing its equipment service life, component degradation, exposure to the elements. The main copper busbar component of the switchgear was recently replaced and dipped in epoxy coating. However, during the repairs, cracks on the insulation of the main horizontal operating bus were discovered. The exterior enclosure is slowly showing signs of corrosion and the glastic insulation materials are degrading.
6. Upon TRMCs approval to complete the following projects, all capital costs incurred to connect the Los Angeles Wilmington and Carson refinery systems, as well as the crude and product pipeline systems: TCM Idea# 2013434786, AFE# 132110022-M (TCM Idea# 2013434419), TCM Idea# 2013434788, AFE# 132110023-M (TCM Idea# 2013434417), AFE# 132110025-M (TCM Idea# 2013434418), AFE# 132110030-M (TCM Idea# 2013434420), AFE# 132110031-M (TCM Idea# 2013434784), TCM Idea# 2013434785 and AFE# 132110026 (TCM Idea# 2013434137).
7. Upon TRMCs approval to complete the project, all capital costs related to the project at Terminal 2 targeted to reduce Andeavors demurrage cost due to barge delivered additive alternative, under AFE# 132110024-M (TCM Idea# 2013434220).
8. All capital costs related to AFE# 131907046, the implementation of an equivalent solution using Andeavor ECC 6 MOC module, including necessary configuration changes and customization of interfaces to be completed and executed in line with other transformation projects identified as part of integrating other BP assets such as TMS5 to DTN Guardian3, Load Tracker, etc. in the Logistics area.
9. All capital costs related to AFE# 131907047. As a part of the BP Carson Tranche 1 Contribution Agreement, Andeavor acquired Maximo, i-Maintain, Maximo Mobile and Primavera. These applications are used for scheduling and managing routine maintenance tasks and planning capital projects (Primavera). These business functions will be transitioned to SAP PM (using GWOS) and a TSO instance of Primavera. This initiative should be performed in line with Maximo to SAP PM transformation project and with other logistics and refining projects.
Schedule VI- Page 5 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
10. All capital costs related to AFE# 131907045. This project, in conjunction with Andeavors acquisition of the BP Carson City Refinery, is designed to transition and successfully integrate the Southwests Logistics Mechanical Integrity Inspection System Information Technology assets into the Andeavor Information Technology application landscape.
For West Coast Assets Contribution Agreement listed on Schedule VII:
Expense Projects
1. Nikiski Terminal . Tesoro Alaska shall reimburse the Partnership Group for any costs or expenses incurred by the Partnership Group to reinstate water supply to the Operating Companys Nikiski Terminal in connection with the water suppression system.
2. Anacortes Light Ends Rail Facility. TRMC shall reimburse the Partnership Group for any costs and expenses incurred by the Partnership Group:
|
to determine the adequacy of fire water at the facility; |
|
with respect to any modifications needed to be made to fire water system to provide adequate fire water; and |
|
for relocation of the knockout drum, if relocation is required. |
3. Anacortes Storage Facility
|
TRMC shall reimburse the Partnership Group for any costs and expenses incurred by the Partnership Group to restore Tank 135 to API 653 specifications. TRMC shall be deemed to be the generator of all hazardous waste and other waste removed from Tank 135 in connection with such cleaning and restoration and shall be responsible for all obligations arising as the generator of such hazardous waste and other waste. |
|
TRMC shall reimburse the Partnership Group for any costs and expenses incurred by the Partnership Group for decommissioning and repair of sewer lines for Tanks 165 and 166. |
4. Martinez Light Ends Rail Facility . TRMC shall reimburse the Partnership Group for any costs and expenses incurred by the Partnership Group:
|
to determine the adequacy of fire water at the facility; and |
|
with respect to any modifications needed to be made to fire water system to provide adequate fire water. |
5. Martinez Clean Products Truck Rack . TRMC shall reimburse the Partnership Group for any costs and expenses incurred by the Partnership Group:
|
if required to supplement data currently available in the baseline inspections records in order to properly document corrosion, to carry out new tank corrosion inspections on Tanks 777, 778 and 890, as well as any repairs resulting from such inspections to meet API 653 standards; and |
Schedule VI- Page 6 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
|
with respect to Tank 777, the tank berm size and tank proximity evaluation scheduled to completed by year-end 2014, as well as any required adjustments resulting therefrom. |
6. Martinez Light Ends Storage . If required to supplement data currently available in the baseline inspection records in order to properly document pipe integrity, TRMC shall reimburse the Partnership Group for any costs and expenses incurred by the Partnership Group for inspections and analyses conducted to confirm baseline pipe integrity by year-end 2014, as well as any repairs arising from defects identified through such inspections.
7. Tesoro Alaska Pipeline
|
Andeavor shall reimburse the Partnership Group for any costs or expenses incurred by the Partnership Group to carry out the repairs and tests identified in the Coffman Engineers report dated May 8, 2014, including the planned hydro-test in 2015 and any resulting repairs therefrom. |
|
Andeavor shall reimburse the Partnership Group for any costs or expenses incurred by the Partnership Group to carry out repairs identified pursuant to the inspection on the Tesoro Alaska Pipeline as a result of the inspection scheduled to begin June 30, 2014. |
Capital Projects
Martinez Capital Projects
1. All capital costs related to AFE# 127100012Design, procure, and install Biodiesel Blending Facility at existing Martinez Tract 3 Truck Loading Rack.
2. All capital costs related to AFE# 132100017 Martinez gasoline loading rack filtration.
3. All capital costs related to AFE# TBD regarding Fall Protection for Top Loading Tank Cars and Trucks.
4. All capital costs related to AFE# 132100017 regarding the installation of a new Tract 3 Gasoline Loading Rack Filtration System to replace the existing rental units.
5. All capital costs related to AFE# PTS 12475 regarding LPG Tank Car Loading Rack Improvements.
6. All capital costs related to AFE# TBD regarding the installation of a system to add ExxonMobil additives to gasoline at the Tr. 3 truck loading rack.
Schedule VI- Page 7 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
7. All capital costs related to AFE# 145110009 regarding the implementation of Tesoro Alaska Pipeline mainline delivery strainer.
Alaska Capital Projects
1. All capital costs related to AFE# 125100055Additive reservoir tank and pumping system for the Nikiski Terminal truck loading rack.
2. All capital costs related to AFE# 125110005Fabrication and installation of a skid-mounted clay treatment system at the Tesoro Alaska Pipeline Port of Anchorage delivery facility.
3. All capital costs related to AFE# 125110007 Provision of inline strainers upstream of the Kenai Pump station pipeline pumps and upstream of the Anchorage receiving station control valve.
4. All capital costs related to AFE# 124100034Purchase and installation of (5) IP CCTV Cameras, and security video monitoring station for Tesoro Alaska Pipeline Anchorage control room (located at the Port of Anchorage Industrial Park), MLV 7 on Northern Lights Blvd, and the ASIG Filter Building located at Ted Stevens International Airport.
5. All capital costs related to AFE# 145110002 regarding the installation of semi-deep cathodic protection wells, a new rectifier and electrical service at the Tesoro Alaska Pipeline.
6. All capital costs related to AFE# 124100030 regarding new CCTV monitoring system at the Nikiski Terminal.
7. All capital costs related to AFE# 145120005 regarding a new cathodic protection anode bed and rectifier for the Nikiski Terminal.
Schedule VI- Page 8 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
For 2015 Line 88 and Carson Tankage Contribution Agreement listed on Schedule VII:
Capital Projects
TRMC shall reimburse the Partnership Group for:
1. Upon mutual consent on project scope between TRMC and the Partnership, TRMC shall reimburse the Partnership Group for all capital costs incurred for the execution of the following piping systems projects: AFE# 136104160BP (TCM Idea# 2013218160), TCM Idea# 2013212538, TCM idea# 2013212540 and TCM Idea# 2013212539. For any such projects listed above in this section 1 that are required to maintain safe operation of the Assets, the Partnership shall determine the final project scope in its sole discretion.
2. Upon mutual consent on project scope between TRMC and the Partnership, TRMC shall reimburse the Partnership Group for all capital costs incurred for the execution of the following instrumentation and control projects: AFE# 154100014 (TCM Idea# 2014217001), TCM Idea #2014217008, AFE# 136104169BP (TCM Idea# 2013218169), AFE# 136104190BP (TCM Idea# 2013218190), TCM Idea# 2013212558, and TCM Idea # 2014217023. For any such projects listed above in this section 2 that are required to maintain safe operation of the Assets, the Partnership shall determine the final project scope in its sole discretion.
3. Upon mutual consent on project scope between TRMC and the Partnership, TRMC shall reimburse the Partnership Group for all capital costs incurred for the execution of the following tank improvements: TCM Idea# 2014217135 (tk 56), TCM Idea# 2013212585 (tk 1), TCM Idea# 2014217132 (tk 90), TCM Idea# 2014217133 (tk 11), TCM Idea# 2013212575 (tk 34), TCM Idea # 2013212587 (tk 35), TCM Idea# 2013212588 (tk 10), TCM Idea# 2013212589 (tk 58), TCM Idea# 2013212592 (tk 39), TCM Idea# 2013212593 (tk 968), TCM Idea# 2013212595 (tk 60), TCM Idea# 2013212596 (tk 69), TCM Idea # 2013212597 (tk 57), TCM Idea# 2013212599 (tk 51). For any such projects listed above in this section 3 that are required to maintain safe operation of the Assets, the Partnership shall determine the final project scope in its sole discretion.
4. All capital costs related to the repair or replacement of brick structure piping supports, with the scope of repairs to be developed in 2016 and the execution of such repairs to be completed in 2017.
5. All capital costs related to the upgrade or replacement of the cathodic protection system for the tanks as identified through a cathodic protection assessment to be completed prior to year end 2016. An action plan will be developed to address recommendations identified through the assessment. The program is expected to commence in 2016 and will be executed over a 4-year period.
Schedule VI- Page 9 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
6. All capital costs related to the multi-phase upgrade or replacement of tank level measurement and transmitter instruments, upon mutual consent of TRMC and the Partnership of the scope for the multi-year project. Notwithstanding the foregoing, the Partnership in its sole discretion shall determine the final scope of any element of the tank level instrument upgrade project required to maintain safe operation of the Assets. TRMCs reimbursement to the Partnership Group for capital costs incurred during the Term to complete the tank level instrument upgrade or replacement project shall not exceed $15,000,000 in the aggregate.
Expense Projects
1. With respect to the Remaining Pipeline 88 Interest (as defined in the 2015 Line 88 and Carson Tankage Contribution Agreement listed on Schedule VII), TRMC shall reimburse the Partnership for any costs and expenses associated with curing any anomalies identified by the August 2015 in-line inspection thereof.
2. With respect to the Tankage (as defined in the 2015 Line 88 and Carson Tankage Contribution Agreement listed on Schedule VII), as well as the land on which such Tankage is located, TRMC shall reimburse the Partnership for any costs and expenses associated with any liabilities, costs and expenses that might be imposed upon the Partnership as operator of the Tankage and which relate to the environmental condition of the land on which the Tankage is located and surrounding lands, including but not limited to any government-imposed fines or remediation costs and natural resource damages, but excluding (i) any liabilities, costs and expenses that arise from any releases or discharges of hydrocarbons or other substances from the Tankage after the date hereof or (ii) any liabilities, costs and expenses that arise from negligent acts or omissions or willful misconduct of the Partnership and its agents, contractors and representatives.
3. Until the later of (i) November 12, 2020 or (ii) the completion of any repairs identified by any applicable non-invasive or external inspections that occurred prior to such date, TRMC shall reimburse the Partnership Group for any costs and expenses incurred by the Partnership Group to restore any tank included in the 2015 Line 88 and Carson Tankage Contribution Agreement listed on Schedule VII to API 653 or API 510 specifications that are identified through the Partnership Groups non-invasive or external inspections.
4. During the term (including any extension thereof) of the Carson II Storage Services Agreement, dated as of November 12, 2015, by and among TRMC, the General Partner, the Partnership and the Operating Company (the Carson II Storage Agreement), TRMC shall reimburse the Partnership Group for any costs and expenses incurred by the Partnership Group to restore any tank included in the 2015 Line 88 and Carson Tankage Contribution Agreement listed on Schedule VII to API 653 or API 510 specifications, as determined by the results of the first scheduled internal inspection of any such tank after the date hereof (the First Internal Inspection). TRMC shall be deemed to be the generator of all hazardous waste and other waste removed from any such tanks in connection with such cleaning and restoration and shall be responsible for all obligations arising as the generator of such hazardous waste and other waste.
Schedule VI- Page 10 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
a) |
TRMC and the Operating Company shall mutually agree on the inspection schedule and the duration of such inspections so as to minimize disruption within the Wilmington and Carson refinery systems, with TRMC having the right to approve the final inspection schedule. |
b) |
If TRMC fails to renew the Carson II Storage Services Agreement, prior to November 12, 2022, in accordance with the terms thereof, the Partnership Group may elect to accelerate API 653 or API 510 inspections prior to the expiration of the Carson II Storage Agreement. |
5. Notwithstanding Sections 3 and 4 above, the parties agree that the following tanks included in the 2015 Line 88 and Carson Tankage Contribution Agreement listed on Schedule VII have been inspected, cleaned, and repaired to ensure compliance with API 653 or API 510 standards within the 24 months prior to the date of that Contribution Agreement, and are excluded from the reimbursement requirements listed above unless such actions fail to meet such compliance standards due to the negligence of TRMC:
Tank Number |
Year of Last Inspection | |
53 |
2013 | |
87 |
2013 | |
41 |
2013 | |
4 |
2013 | |
88 |
2013 | |
5 |
2013 | |
24 |
2013 | |
325 |
2013 | |
326 |
2013 | |
45 |
2014 | |
65 |
2014 | |
89 |
2014 | |
276 |
2014 | |
289 |
2014 | |
303 |
2014 | |
340 |
2014 | |
50 |
2014 | |
302 |
2014 | |
138 |
2014 | |
139 |
2014 | |
289 |
2015 | |
65 |
2015 | |
969 |
2015 | |
40 |
2015 | |
955 |
2015 | |
194 |
2015 |
Schedule VI- Page 11 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
For 2016 Alaska Assets Contribution Agreement listed on Schedule VII:
KENAI TANKAGE:
Capital Projects
TAC shall reimburse the Partnership Group for:
1. |
Upon mutual consent on project scope between TAC and the Partnership, TAC shall reimburse the Partnership Group for all capital costs incurred for the execution of the following instrumentation and control projects: AFE# 2012217023 (TCM Idea# 137100002), TCM Idea# 2014216018, TCM Idea# 2007002425. For any such projects listed above in this section 1 that are required to maintain safe operation of the Assets, the Partnership shall determine the final project scope in its sole discretion. |
2. |
All capital costs related to the assessment and upgrade or replacement of tank level measurement and transmitter instruments, upon mutual consent of TAC and the Partnership of the scope for the multi-year project. Notwithstanding the foregoing, the Partnership in its sole discretion shall determine the final scope of any element of the tank level instrument upgrade project required to maintain safe operation of the Assets. |
3. |
All capital costs related to installation of tank liners during first API 653 inspection cycle to bring each tank into conformance with Alaska Department of Environmental Conversation standards. |
4. |
All capital costs related to the assessment and necessary upgrades of cathodic protection system including: |
|
Additional anode ground beds |
|
Additional surface distributed anodes |
|
Additional amperes of cathodic protection for on-grade storage tanks |
|
Under tank monitoring systems |
The program is expected to commence in 2016 and will be executed over a 3-year period.
5. |
All capital costs related to internal inspection, assessment and repair of Tank 11 internal floating roof. |
Expense Projects
1. |
The parties agree that Tank 37 included in the Alaska Assets Contribution Agreement listed on Schedule VII have been inspected, cleaned, and repaired to ensure compliance with API 653 or API 510 standards within the 24 months prior to the date hereof, and are excluded from the reimbursement requirements listed above unless such actions fail to meet such compliance standards due to the negligence of TAC. |
Schedule VI- Page 12 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
2. |
Any costs or expenses related to: |
|
Completion of pressure relief documentation, expected to be complete by year-end 2016. |
|
Completion of area classification plans per NEC 500.4, expected to be complete by year-end 2017. |
ANCHORAGE AND FAIRBANKS TERMINALS:
Capital Projects
TAC shall reimburse the Partnership Group for:
1. |
All capital costs related to: |
a) |
Anchorage Terminal |
|
Installation of permanent fire water pipeline supports with proper coating; expected to be complete by year-end 2017. |
|
Assessment, evaluation and potential replacement of two deep anode ground beds (No. 2 and No. 5); expected to be completed within cathodic protection program by year-end 2018. |
|
Installation of third tank floor on Tank 4236 with either new cathodic protection system or an El Segundo system; expected to be complete by year-end 2020. |
|
Assessment and upgrades to add access platforms and roof protection to east side filter vessels; expected to be complete by year-end 2017. |
b) |
Fairbanks Terminal |
|
Assessment, evaluation and potential replacement of two deep anode ground beds and installation of two new rectifiers to allow ground beds to be operated independently; expected to be completed within cathodic protection program by year-end 2018. |
Expense Projects
1. |
Any costs or expenses related to: |
a. |
Anchorage Terminal |
|
Inspection and assessment of buried product pipeline; expected to be complete by year-end 2017. |
|
Assessment of manual operation of rail car sump tankage; expected to be complete by year-end 2017. |
b. |
Fairbanks Terminal Any costs or expenses related to: |
|
Arc flash assessment; expected to be complete by year-end 2017. |
Relief valve sizing and selection assessment; expected to be complete by year-end 2017.
Schedule VI- Page 13 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
For Martinez Assets Contribution Agreement listed on Schedule VII:
Capital Projects
TRMC shall reimburse the Partnership Group for:
1. Upon mutual consent on project scope between TRMC and the Partnership, TRMC shall reimburse the Partnership Group for all capital costs incurred for the execution of the following secondary containment projects identified for Tract 3 and Tract 6: AFE# 127100010 (TCM Idea# 2007000713), TCM Idea# 2012211027. In addition, TRMC shall reimburse the Partnership for any additional capital costs or expenses that are associated with the regulatory mandated validation of secondary containment volumes for the Spill Prevention Controls and Countermeasures Plan. For any such projects listed above in this section 1 that are required to maintain safe operation and compliance of the Assets, the Partnership shall determine the final project scope in its sole discretion.
2. Upon mutual consent on project scope between TRMC and the Partnership, TRMC shall reimburse the Partnership Group for all capital costs incurred for the execution of the following tank repairs, improvements and new build projects: AFE# 152100015 (TCM Idea# 2007000694), TCM Idea# 2007000701, TCM Idea# 2009001043, TCM Idea# 2012211055, TCM Idea# 2012211056, TCM Idea# 2012211080, TCM Idea# 2012211082, TCM Idea# 2013211049, TCM Idea# 2013211073, TCM Idea# 2014211011, TCM Idea# 2014211038, TCM Idea# 2014211040. For any such projects listed above in this section 2 that are required to maintain safe operation and compliance of the Assets, the Partnership shall determine the final project scope in its sole discretion.
3. Upon mutual consent on project scope between TRMC and the Partnership, TRMC shall reimburse the Partnership Group for all capital costs incurred for the execution of the Avon Warf Upgrade project (MOTEMS), AFE# 077100030 (TCM Idea# 2007001314), and the Avon Wharf Pipeline Surge Protection project, AFE # 154100001 (TCM Idea # 2012211075). In addition, TRMC shall reimburse the Partnership for any additional capital costs or expenses that are determined to be required to bring the Avon Wharf into compliance with MOTEMS at the time of the commencement of service of the replacement Wharf, but not for future MOTEMS that may be imposed after the replacement Wharf is approved and permitted for operation. For any such projects listed above in this section 3 that are required to maintain safe operation and compliance of the Assets, the Partnership shall determine the final project scope in its sole discretion.
4. Upon mutual consent on project scope between TRMC and the Partnership, TRMC shall reimburse the Partnership Group for all capital costs incurred for the execution of the following miscellaneous projects: TCM Idea# 2007001600, TCM Idea# 2014211008. For any such projects listed above in this section 4 that are required to maintain safe operation of the Assets, the Partnership shall determine the final project scope in its sole discretion.
5. All capital costs related to the replacement and associated initial permitting requirements of the Marine Vapor Control System.
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Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
6. All capital costs related to the upgrade or replacement of the cathodic protection system for the tanks as identified through a cathodic protection assessment. An action plan will be developed to address recommendations identified through the assessment. The program is expected to commence in 2017 and will be executed over a 4-year period.
7. All capital costs and expenses that may be associated with the Asset Retirement Obligations with respect to the existing Avon Wharf and its berths (but not including any future costs of demolition and retirement of the structures on the replacement Wharf now being constructed).
8. All capital costs and expenses that may be associated with the removal of abandoned pipelines in the Licensed Premises, but only to the extent that such abandoned pipelines have never been used to provide services under the Martinez Storage Services Agreement and such pipelines are then required to be removed pursuant to applicable law, regulation or governmental order.
9. All capital costs and expenses related to the Getty pipeline thermal expansion assessment and potential relocation of the pipeline above ground, per refinery inspection recommendation.
10. All capital costs and expenses related to the assessment and potential repairs to underground storm water piping.
Expense Projects
1. The parties agree that the following tanks included in the Martinez Assets Contribution Agreement listed on Schedule VII have been inspected, cleaned, and repaired to ensure compliance with API 653 or API 510 standards within the 24 months prior to the date of that Contribution Agreement, or the next scheduled tank inspection falls beyond the year 2036, and such tanks are excluded from the reimbursement requirements listed in Section 5.1(a) of this Agreement, unless such actions fail to meet such compliance standards due to the negligence of TRMC.
Tank Number |
026 |
258 |
517 |
601 |
612 |
641 |
690 |
701 |
702 |
709 |
710 |
711 |
Schedule VI- Page 15 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
For Assets owned by Western Refining, Inc. and Western Refining Logistics LP and their subsidiaries prior to the Closing Date of the Merger Agreement and acquired by the Partnership pursuant to the Merger Agreement by virtue of its acquisition of WNRL thereunder:
None, except as provided under the SERA, which and shall be the exclusive provisions for all such matters provided in the SERA.
Schedule VI- Page 16 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
For 2017 Anacortes Assets Contribution Agreement listed on Schedule VII:
Capital Projects
TRMC shall reimburse the Partnership Group for:
1. |
Upon mutual consent on project scope between TRMC and the Partnership, TRMC shall reimburse the Partnership Group for all capital costs incurred for the execution of the following gasoline blending unit projects identified: TCM Idea# 2017211656, TCM Idea# 2016215025, TCM Idea# 2014215018, and TCM Idea# 2012215056. For any such projects listed above in this section 1 that are required to maintain safe operation and compliance of the Assets, the Partnership shall determine the final project scope in its sole discretion. |
2. |
Upon mutual consent on project scope between TRMC and the Partnership, TRMC shall reimburse the Partnership Group for all capital costs incurred for the execution of the following tank repairs, improvements and new build projects: TCM Idea# 2015215024, TCM Idea# 2015215023, TCM Idea# 2015215020, TCM Idea# 2015215022, TCM Idea# 2015215006, TCM Idea# 2016215005, TCM Idea# 2015215008, AFE# DTKRS.0600.2017.03 (TCM Idea# 2015215017), AFE# DTKRS.0600.2017.02 (TCM Idea# 2015215018), AFE# DTKRS.0600.2017.01 (TCM Idea# 2015215010), TCM Idea# 2015215019, TCM Idea# 2015215015, TCM Idea# 2015215012, TCM Idea# 2015215026, TCM Idea# 2009005038, AFE# DTKRS.0600.2016.03 (TCM Idea# 2011215042), AFE# DTKRS.0600.2016.05 (TCM Idea# 2009005041). For any such projects listed above in this section 2 that are required to maintain safe operation and compliance of the Assets, the Partnership shall determine the final project scope in its sole discretion. |
3. |
Upon mutual consent on project scope between TRMC and the Partnership, TRMC shall reimburse the Partnership Group for all capital costs incurred for the execution of the tank improvement program listed under AFE# 164100007 (TCM Idea# 2015215004). The Partnership, in its sole discretion, shall determine the final scope of the project listed above in this section 3, if required to maintain safe operation and compliance of the Assets. |
4. |
Upon mutual consent on project scope between TRMC and the Partnership, TRMC shall reimburse the Partnership Group for all capital costs incurred for the execution of the following manifest rail unloading project identified: TCM Idea# 2016215023. The Partnership, in its sole discretion, shall determine the final scope of the project listed above in this section 4, if required to maintain safe operation and compliance of the Assets. |
5. |
Upon mutual consent on project scope between TRMC and the Partnership, TRMC shall reimburse the Partnership Group for all capital costs incurred for the execution of the following miscellaneous projects identified: AFE# 172100068 (TCM Idea# 2017211658), AFE# 162100077 (TCM Idea# 2016215022), TCM Idea# |
Schedule VI- Page 17 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
2013215028, AFE#172100086 (TCM Idea# 2014215009). For any such projects listed above in this section 5 that are required to maintain safe operation and compliance of the Assets, the Partnership shall determine the final project scope in its sole discretion. |
6. |
All capital costs related to the installation of closed-purge, closed-loop, or closed-vent samplers at all storage tanks by 2021 (per the Consent Decree mentioned in Schedule 1). According to TRMC representatives, as recorded in section 2.2.4 of ERMs Due Diligence Summary Report (October 2017), there are 42 tanks left to retrofit in the Assets covered by the 2017 Anacortes Contribution Agreement. |
Expense and/or Capital Projects
1. |
The parties agree that the following tanks included in the 2017 Anacortes Assets Contribution Agreement listed on Schedule VII have been inspected, cleaned, and repaired to ensure compliance with API 653 or API 510 standards within the 36 months prior to the date hereof and are excluded from the reimbursement requirements listed above unless such actions fail to meet such compliance standards due to the negligence of TRMC. |
Tank Number |
TK001 |
TK019 |
TK024 |
TK025 |
TK026 |
TK028 |
TK060 |
TK091 |
TK092 |
TK134 |
TK248 |
TK156 |
TK158 |
TK180 |
TK241 A |
TK241 B |
2. |
Upon mutual consent on project scope between TRMC and the Partnership, TRMC shall reimburse the Partnership Group for all expense and capital costs incurred for the execution of the following miscellaneous projects identified in the tables below. |
Schedule VI- Page 18 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
Tank Farm Projects
IEA) - Replace aging power poles in Tank Farm |
IEA) - Upgrade Switch Racks |
IEA) - Tank Farm Conduit |
IEA) - Replace MOVs in the tank farm |
IEA) - Replace Coggins Conduit and wire |
IEA) - Tank Farm Grounding |
IEA) - Install electric heat tracing |
PIPE) - Upgrade steam piping in tank farm |
REF) - Sample station compliance |
IEA) - Skim oil sump level controller to P-709 |
INSP) - Required inspection work on V-801 |
INSP) - Required inspection work on TK-38 |
REF) - Purchase tank 8 heater |
TKWK) - Roof Drains, Seal Failures |
IEA) - Back pressure regulator for C4 to storage |
INSP) - Offsite/Rack Piping RBMI Implementation Field |
Marine Terminal Projects
REF) - Contingency boom replacement |
IEA) - Causeway Conduit |
PPXX) - Abrasive Blast and recoat wharf lines and remove asbestos conduit |
REF) - Rebuild bumpers to be prioritized by operations |
WINP) - Install stairway to access spill boats |
Rail Projects
RAIL) - Rail Maintenance & Inspection |
Rail) - Rail Track Repair |
Note, the above projects in this section 2 are characterized by Program and Technical ID or Work Note shown in the Major Special Maintenance (MSM) budget of the Andeavor Anacortes Refinery. For any such projects listed above in this section 2 that are required to maintain safe operation and compliance of the Assets, the Partnership shall determine the final project scope in its sole discretion.
3. |
All additional operating expenses associated with accelerating the tank containment dike erosion control program, for the mitigation of erosion issues, over the next five years. This issue is recorded in section 2.2.2 of ERMs Due Diligence Summary Report (October 2017) as well as section 3.2.1 of Coffmans Mechanical Integrity Due Diligence Study (September 2017). |
4. |
All costs related to the installation of independent high-high level switches, consistent with the established tank inspection and repair program. This issue is recorded in section 3.2.1 of Coffmans Mechanical Integrity Due Diligence Study (September 2017). |
Schedule VI- Page 19 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
5. |
All costs for any future modifications required to comply with Andeavor Tank & Loading Rack fire protection standard CPER-004 currently under review. This issue is recorded in section 3.4.11 of Coffmans Mechanical Integrity Due Diligence Study (September 2017). |
6. |
All costs for implementing a surge study for the wharf transfer piping and for any required modifications discovered as a result of this study. This issue is recorded in sections 2.2.1 and 6.2.1 of ERMs Due Diligence Summary Report (October 2017). |
7. |
All costs for implementing a study of the dike arrangement to the north and east sides of Tank 38, which may not adequately direct contents to the remote containment area in the event of a vessel failure, and for any required modifications discovered as a result of this study. This issue is recorded in section 3.2.2 of Coffmans Mechanical Integrity Due Diligence Study (September 2017). |
8. |
All costs for potential future expenses of investigation and mitigation work related to seep of oil through the north secondary containment dike for tanks 6 and 7. This issue is recorded in sections 6.1.1 and 6.2.3 of ERMs Due Diligence Summary Report (October 2017). |
9. |
All costs related to the installation of storage tank seals and gaskets, required by Refinery Sector Rule MACT Subpart CC, to be identified in the established compliance schedule for tank inspection and repair. This issue is recorded in section 2.2.3 of ERMs Due Diligence Summary Report (October 2017). |
10. |
All costs to empty, blind-flange or air-gap any of the out-of-service tanks listed below. |
Tank Number |
TK034 |
TK046 |
TK047 |
TK048 |
TK055 |
TK062 |
TK088 |
TK089 |
TK090 |
TK095 |
TK098 |
TK099 |
TK110 |
TK147 |
TK159 |
TK232 |
TK249 |
Schedule VI- Page 20 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
11. |
All costs for removal of out-of-service assets identified in section 6.2.8 of ERMs Due Diligence Summary Report (October 2017). These assets include 17 tanks (shown in Section 10 above), asphalt loading rack, pipelines, red dye shed and lead shed. |
12. |
All costs related to the performing of an assessment of propane and butane vessel containment areas, and any resulting project expenses required, to ensure compliance with National Fire Protection Association (NFPA) fire codes. This issue is recorded in section 6.3.3 of ERMs Due Diligence Summary Report (October 2017). |
13. |
All costs related to performing an initial direct assessment, and any resulting required repairs, of the Andeavor-owned segment of the underground Kinder Morgan crude pipeline. This issue is recorded in section 3.3.1 of Coffmans Mechanical Integrity Due Diligence Study (September 2017). |
14. |
All costs related to performing an initial inspection, and any resulting required repairs, of the wharf sumps. This issue is recorded in section 3.3.5 of Coffmans Mechanical Integrity Due Diligence Study (September 2017). |
15. |
All costs related to performing an initial inspection, and any resulting required repairs, of the cathodic protection (CP) systems for the aboveground storage tank bottoms, buried facility piping and marine structures. During this inspection the rectifiers will be surveyed and any rectifiers which are not Nationally Recognized Testing Laboratory (NRTL) listed per OSHA (Occupational Safety and Health Administration) and NFPA requirements will be replaced and costs will be subject for reimbursement. These issues are recorded in section 3.4.17 of Coffmans Mechanical Integrity Due Diligence Study (September 2017). |
16. |
All cost of in-service inspections and evaluations of the condition of tank walls and tank floors for each of the following tanks, using accepted engineering methods for non-invasive external inspections that do not require that a tank be emptied or structurally altered, which are conducted before the earlier of (i) an API 653 inspection of such tank and (ii) November 7, 2022, up to an aggregate reimbursable cost not to exceed two million dollars for all such tanks. |
Tank Number |
TK003 |
TK005 |
TK006 |
TK008 |
TK011 |
TK013 |
TK015 |
TK017 |
TK018 |
Schedule VI- Page 21 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
TK021 |
TK022 |
TK027 |
TK030 |
TK032 |
TK033 |
TK035 |
TK036 |
TK037 |
TK038 |
TK113 |
TK114 |
TK142 |
TK148 |
TK230 |
TK247 |
TK054 |
TK056 |
TK138 |
TK160 |
TK157 |
TK221 |
TK222 |
TK223 |
TK224 |
TK225 |
TK226 |
TK227 |
TK228 |
TK229 |
Schedule VI- Page 22 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
For 2018 Assets Contribution Agreement listed on Schedule VII:
Defined terms used in this portion of Schedule VI without definition will have the meaning given such terms in the 2018 Assets Contribution Agreement.
Capital Projects
The Andeavor Entities shall reimburse the Partnership Group for:
1. |
Los Angeles Refinery Wilmington Upon mutual consent on project scope between the applicable Andeavor Entities and the applicable members of Partnership Group, the Andeavor Entities shall reimburse the Partnership Group for all capital costs incurred for the execution of the following projects identified: |
IDEA# |
AFE |
DESCRIPTION |
||
NA |
LA-130014 |
RAIL CAR FALL PROTECTION |
||
100000000000000007122018 | NA | TANK GAUGING PH V | ||
100000000000000013322018 | NA | LAR CATHODIC PROTECTION PROGRAM | ||
100000000000000014342018 | NA | RP&S CONTROL SYSTEM MODERNIZATION | ||
100000000000000020072018 | NA | REPLACE EAST RAILCAR LOADING PLATFORM | ||
100000000000000042922018 | NA | Tank Gauging VII | ||
100000000000000042822018 | NA | UPR LARW | ||
NA | NA | Tank 11001 Double-Bottom Upgrade Project |
For any such projects listed above in this section 1 that are required to maintain safe operation and compliance of the Assets, the Partnership shall determine the final project scope in its sole discretion.
2. |
Los Angeles Refinery Carson Upon mutual consent on project scope between the applicable Andeavor Entities and the applicable members of the Partnership Group, the Andeavor Entities shall reimburse the Partnership Group for all capital costs incurred for the execution of the following projects identified: |
IDEA# |
AFE |
DESCRIPTION |
||
NA | LA-160102 | 70 SERIES BUTANE SPHERE LEVEL MEASUREMENT | ||
NA | LA-180057 | PROPANE LOADING ODORANT TRIP |
For any such projects listed above in this section 2 that are required to maintain safe operation and compliance of the Assets, the Partnership shall determine the final project scope in its sole discretion.
3. |
Mandan Refinery Upon mutual consent on project scope between the applicable Andeavor Entities and the applicable members of the Partnership Group, the Andeavor |
Schedule VI- Page 23 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
Entities shall reimburse the Partnership Group for all capital costs incurred for the execution of the following projects identified:
IDEA# |
AFE |
DESCRIPTION |
||
NA | MN-170096 | TANK FIELD MODERNIZATIONPHASE 4 | ||
100000000000000013852018 | NA | FB-754 NEW CR & INTERNAL FLOATING ROOF CONVERSION | ||
100000000000000013862018 | NA | FB-706 NEW CR & INTERNAL FLOATING ROOF CONVERSION | ||
NA | MN-180087 | INSTALL SPARE GA-778 PROPANE LOADING PUMP | ||
NA | MN-180084 | TANK FIELD MODERNIZATIONPHASE 5 | ||
100000000000000020132018 | NA | REPLACE OM PLC OR MOVE TO THE DCS | ||
100000000000000020182018 | NA | FB-724NEW INTERNAL FLOATING ROOF | ||
NA | MN-180094 | Firewater Line to Rail Switch Yard | ||
NA | MN-180085 | Oil Movements HPM Migration | ||
100000000000000041422018 | NA | FB-738 Foam Pipe and New Basin | ||
NA | MN-170121 | BUTANE TRUCK OFFLOADING | ||
NA | TA-160011 | FB-751 DOUBLE FLOOR REPLACEMENT | ||
NA | TA-160013 | FB-741 INTERNAL SHELL REPAIR | ||
NA | TA-160014 | FB-755 INSPECT AND REPAIR | ||
100000000000000006842018 | NA | FB-738BOTTOM REPAIRS AND BASIN ENHANCEMENT | ||
100000000000000006852018 | NA | FB-752BOTTOM REPAIRS AND BASIN ENHANCEMENT | ||
100000000000000006862018 | NA | FB-742BOTTOM REPLACEMENT | ||
100000000000000006922018 | NA | FB-710 Inspect and Repair | ||
100000000000000006932018 | NA | FB-726 Inspect and Repair |
For any such projects listed above in this section 3 that are required to maintain safe operation and compliance of the Assets, the Partnership shall determine the final project scope in its sole discretion.
4. |
Salt Lake Refinery - Upon mutual consent on project scope between the applicable Andeavor Entities and the applicable members of the Partnership Group, the Andeavor Entities shall reimburse the Partnership Group for all capital costs incurred for the execution of the following projects identified: |
Schedule VI- Page 24 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
ITEM # (IDEA #) |
ID (AFE) |
DESCRIPTION |
||
NA | SL-160012 | SALT LAKE TIER III GASOLINE COMPLIANCE (Tank 248 + Rail + Dan Upgrades + Blend Upgrades) | ||
NA | SL-170063 | TANK 144 REPLACEMENT (new 245) | ||
NA | SL-170004 | TANK 245 REPLACEMENT (new 244) | ||
NA | SL-170034 | TANK 213 | ||
NA | SA-179045 | Automation Modernization Program (AMP) (to replace OMD CSM and BLR SIS projects) | ||
100000000000000017312018 | NA | DIESEL / JET MANIFOLD SEGREGATION | ||
NA | SL-180011 | Modernize Cyber Security Infrastructure | ||
100000000000000027732018 | NA | TANK 243 REPLACEMENT | ||
100000000000000006602018 | NA | TANK 206 TURNAROUND | ||
100000000000000006612018 | NA | TANK 247 TURNAROUND | ||
100000000000000006652018 | NA | TANK 246 TURNAROUND | ||
100000000000000006772018 | NA | Tank 206(A) New Tank |
For any such projects listed above in this section 4 that are required to maintain safe operation and compliance of the Assets, the Partnership shall determine the final project scope in its sole discretion.
5. |
Delek Asphalt Terminals Upon mutual consent on project scope between the applicable Andeavor Entities and the applicable members of the Partnership Group, the Andeavor Entities shall reimburse the Partnership Group for all capital costs incurred for the execution of the following projects identified: |
IDEA# |
AFE |
Location |
DESCRIPTION |
|||
TBD | TBD | Fernley (50%) | Fall Protection Truck | |||
TBD | TBD | Fernley (50%) | Fall Protection Rail | |||
TBD | TBD | Fernley (50%) | Remove surface impoundment | |||
TBD | TBD | Elk Grove | Fall Protection Truck | |||
TBD | TBD | Elk Grove | Fall Protection Rail | |||
TBD | TBD | Elk Grove | Replace CS RTO lines with SS | |||
TBD | TBD | Elk Grove | Remove surface impoundment | |||
TBD | TBD | Elk Grove | Piping debottleneck | |||
TBD | TBD | Elk Grove | Refurbish PMA unit | |||
TBD | TBD | Mojave | Fall Protection Truck | |||
TBD | TBD | Mojave | Fall Protection Rail | |||
TBD | TBD | Mojave | Hot oil booster pump | |||
TBD | TBD | Bakersfield | Fall Protection Truck | |||
TBD | TBD | Bakersfield | Fall Protection Rail | |||
TBD | TBD | Bakersfield | Remove surface impoundment | |||
TBD | TBD | Bakersfield | New Boiler/Steam Generator | |||
TBD | TBD | Bakersfield | Hot Water tank | |||
TBD | TBD | Bakersfield | New emission control unit | |||
TBD | TBD | Phoenix | Fall ProtectionTruck | |||
TBD | TBD | Phoenix | Fall Protection Rail | |||
TBD | TBD | System | Spare emulsion mill/housing | |||
TBD | TBD | System | Spare PMA mill tooling |
Schedule VI- Page 25 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
For any such projects listed above in this section 5 that are required to maintain safe operation and compliance of the Assets, the Partnership shall determine the final project scope in its sole discretion.
6. |
BakkenLink / Fryburg - Upon mutual consent on project scope between the applicable Andeavor Entities and the applicable members of the Partnership Group, the Andeavor Entities shall reimburse the Partnership Group for all capital costs incurred for the execution of the following projects identified: |
IDEA# |
AFE |
DESCRIPTION |
||
NA | NG-170034 | FRYBURG RAIL TERMINAL T103 & T104 VALVE | ||
NA | NG-180026 | FRYBURG RAIL TERMINAL SECURITY IMPROVEMENT | ||
NA | NG-180019 | TGP METER SKID BUILDING UPGRADES | ||
NA | NG-180020 | ARC FLASH MITIGATION TGPM | ||
NA | NG-180021 | TANK LIGHTNING PROTECTION TGPM | ||
NA | NG-180022 | FLOWCAL IMPLEMENTATION BAKKENLINK | ||
NA | NG-180017 | TANK MIXERS T201 AND T301 AT WATFORD CIT |
For any such projects listed above in this section 6 that are required to maintain safe operation and compliance of the Assets, the Partnership shall determine the final project scope in its sole discretion.
7. |
Jal NGL Storage Facility - Upon mutual consent on project scope between the applicable Andeavor Entities and the applicable members of the Partnership Group, the applicable Andeavor Entities shall reimburse the Partnership Group for all capital costs incurred for the execution of the following projects identified |
IDEA# |
AFE |
DESCRIPTION |
||
TBD | TBD | Dead leg removal project: Remove several dead legs SW of the pump house and reroute a brine water line to mitigate an existing ramp concern | ||
99991944 | NA | 2019.SMT.Jal NGL Storage Facility. Brine Pond liner replacement and salt/sand disposal | ||
TBD | TBD | 2019.SMT.Jal. Inline filters for line coming in from MAPCO | ||
TBD | TBD | 2019.SMT.Jal NGL Storage Facility. Install a gas separator in the brine line | ||
TBD | TBD | 2019.SMT.Jal NGL Storage Facility. SDV upstream of product pumps & relocate discharge/suction valves outside of pump room |
For any such projects listed above in this section 7 that are required to maintain safe operation and compliance of the Assets, the Partnership shall determine the final project scope in its sole discretion.
Expense and/or Capital Projects
1. |
The Parties agree that the following tanks relating to the LARW Refinery Unit included in the 2018 Assets Contribution Agreement listed on Schedule VII have been inspected, cleaned, and repaired to ensure compliance with API 653 or API 510 standards within |
Schedule VI- Page 26 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
the 36 months prior to the date hereof, or are deemed in compliance with API 653 through current risk-based management inspection (RBMI) standards and whose next API 653 inspection is scheduled greater than 20 years after the Effective Date, and are excluded from the reimbursement requirements listed above unless such actions fail to meet such compliance standards due to the negligence of Andeavor. |
Tank Number |
776 |
777 |
778 |
779 |
780 |
1503 |
13502 |
50000 |
80035 |
80057 |
80092 |
80219 |
125001 |
125002 |
2. |
The Parties agree that the following tanks relating to the LARC Refinery Unit included in the 2018 Assets Contribution Agreement listed on Schedule VII have been inspected, cleaned, and repaired to ensure compliance with API 653 or API 510 standards within the 36 months prior to the date hereof, or are deemed in compliance with API 653 through current risk-based management inspection (RBMI) standards and whose next API 653 inspection is scheduled greater than 20 years after the Effective Date, and are excluded from the reimbursement requirements listed above unless such actions fail to meet such compliance standards due to the negligence of Andeavor. |
Tank Number |
74 |
350 |
351 |
352 |
353 |
354 |
355 |
681 |
3. |
Upon mutual consent on project scope between the Andeavor Entities and the Partnership, the Andeavor Entities shall reimburse the Partnership Group for all expense and capital costs incurred for the execution of the following miscellaneous projects at the LARW Refinery Unit or LARC Refinery Unit, identified in the table below. |
Schedule VI- Page 27 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
NRE ID# |
Description |
|
6473 | RP&S Replace 200 ft of 8 Slops Line | |
6456 | RP&S Replace 800 ft of 12 Vapor Recovery PipingV2331 to VXXXX | |
6474 | Tank 80219, hot tap a new nozzle at ~15 | |
6477 | REPLACE LIGHTING AT CONTROL ROOM MANIFOLD | |
6273 | Brinewater to slop Bypass line | |
6280 | PLATFORM BETWEEN TANK 80219 AND 80087 | |
6197 | RP&S Install minimum flow kickback for P-1206 | |
6202 | RP&S Steam pressure control valve at tank 118066 | |
5802 | Replace 73-CP-1 (RP&S Central Tank Farm) PLC | |
TBD | Clean and air gap tanks 11000, 11001, 11003 and 11004 |
4. |
The Parties agree that the following tanks relating to the Mandan Refinery included in the 2018 Assets Contribution Agreement listed on Schedule VII have been inspected, cleaned, and repaired to ensure compliance with API 653 or API 510 standards within the 36 months prior to the date hereof, or are deemed in compliance with API 653 through current risk-based management inspection (RBMI) standards and whose next API 653 inspection is scheduled greater than 20 years after the Effective Date, and are excluded from the reimbursement requirements listed above unless such actions fail to meet such compliance standards due to the negligence of Andeavor. |
Tank Number |
FB-702 |
FB-708 |
FB-714 |
FB-715 |
FB-721 |
FB-722 |
FB-725 |
FB-726 |
FB-728 |
FB-729 |
FB-731 |
FB-744 |
FB-747 |
FB-753 |
FB-758 |
FB-771 |
FB-774 |
5. |
Upon mutual consent on project scope between Andeavor and the Partnership, the Andeavor Entities shall reimburse the Partnership Group for all expense and capital costs incurred for the execution of the following miscellaneous projects at the Mandan Refinery, identified in the table below. |
Schedule VI- Page 28 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
Expense Order # |
Description |
|
9005833 |
OTEGA759 & GA759S Pump Foundation Replacement |
|
9026500 |
OTERemove OM RV Pot & Modify Drain Piping | |
unknown |
OTEResolve Wet Propane Issue |
6. |
The Parties agree that the following tanks relating to the Salt Lake Refinery included in the 2018 Assets Contribution Agreement listed on Schedule VII have been inspected, cleaned, and repaired to ensure compliance with API 653 or API 510 standards within the 36 months prior to the date hereof, or are deemed in compliance with API 653 through current risk-based management inspection (RBMI) standards and whose next API 653 inspection is scheduled greater than 20 years after the Effective Date, and are excluded from the reimbursement requirements listed above unless such actions fail to meet such compliance standards due to the negligence of Andeavor. |
Tank Number |
142 |
190 |
204 |
212 |
213 |
244 |
306 |
321 |
326 |
330 |
427C |
7. |
Upon mutual consent on project scope between Andeavor and the Partnership, the Andeavor Entities shall reimburse the Partnership Group for all expense and capital costs incurred for the execution of the following project at the Salt Lake Refinery, identified in the table below. |
IDEA# |
Description |
|
Unknown |
Tank 297 Lift and Level |
Schedule VI- Page 29 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
8. |
Upon mutual consent on project scope between Andeavor and the Partnership, the Andeavor Entities shall reimburse the Partnership Group for all expense and capital costs incurred for the execution of the following miscellaneous projects identified in the table below. |
Asphalt Terminals
Description |
Location |
|
Berm repair | Elk Grove |
Expense and/or Capital Reimbursements Identified in Due Diligence
Upon mutual consent on project scope between the applicable Andeavor Entities and the applicable members of the Partnership Group, the applicable Andeavor Entities shall reimburse the Partnership Group for all expense and capital costs incurred for the execution of the following Andeavor reimbursements identified in the tables below. For all reimbursements in which a study, evaluation, inspection or review must first be performed, such activity must be conducted within 24 months of the Effective Date in order to be subject to Andeavor reimbursement.
1. |
Los Angeles Refinery Carson |
Site |
3 rd Party Contractor Identified Risk |
Andeavor Reimbursement |
||
LAR |
The recently revised CA OSHA Rule 5189.1, Process Safety Management for Petroleum Refineries, incorporates a number of significant changes related to hazard reviews that will potentially result in modifications to RP&S assets. New review methodologies to be incorporated include:
Safeguard Protection Analysis
Hierarchy of Hazard Controls Analysis (HHC)
Damage Mechanism Reviews (DMR)
Discussions with PSM staff indicated that while many of the practices have been adopted within the refinery, some of the additional hazard reviews are likely to result in project costs related to safeguard improvements |
All costs related to implementing additional safeguard improvements to conform with changes in PSM requirements | ||
LAR | Underground piping is removed/decommissioned as part of the UPR effort ongoing at the refinery (required by Cleanup Abatement Order (CAO)). There is a risk that additional underground piping not previously identified will need to be included in the program. Between 2003 and December 2017, approximately 89,895 feet of aboveground pipeline were installed and approximately 69,182 feet of underground pipeline were decommissioned. | All costs for projects to comply with Cleanup Abatement Order, decommissioning underground piping not previously included in the removal program |
Schedule VI- Page 30 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
Site |
3 rd Party Contractor Identified Risk |
Andeavor Reimbursement |
||
LAR |
Additional investment related to Air Toxics health risk reduction requirements may be required due to:
Increased calculated health risk due to changes in California Air Toxics risk calculation methodologies, resulting in additional risk reduction activities
Increased focus on risk from refineries due to California AB617 community monitoring that could lead to additional emission control requirements on tanks (adding domes or vapor recovery to additional tanks), alternative measures for providing power during turnarounds (eliminating portable engine use), and additional cost related to controlling vacuum truck emissions.
Increased cost related to SCAQMD Rule 1180 Refinery Fenceline and Community Air Monitoring (additional instrumentation will be installed in the next year and may need to be updated in 5 years) |
All costs related to identified projects required to comply with California Air Toxics regulations | ||
LAR Carson | Shared containment dikes without intermediate subdivisions (773, 774, 775). Potential risk of fire spread between tanks. | All costs to conduct fire risk study, to determine risks associated with shared containment dikes, and for any related projects required to address NFPA deficiencies | ||
LAR Carson | Tanks 677, 678, 679, 680 (15k bbl. each) are out of service. Tanks would require extensive repairs to reinstate, including adding anchors for seismic stability due to height to diameter ratio. | All costs to perform study to determine if tanks should be demolished and for any resulting costs to demolish tanks, if required. | ||
LAR Carson | Vessels grouped into shared containment areas without subdivision or remote impoundments (pentane spheres 681, 682, 683, 684) and (propane bullets 350, 351, 352, 353, 354, 355) | All costs to conduct fire risk study, to determine risks associated with shared containment dikes, and for any related projects required to address NFPA deficiencies | ||
LAR Carson | There is an ongoing, but incomplete project to upgrade the tank L&J Technologies gauging system to radar type. | All costs to upgrade the tank L&J Technologies gauging system to radar type. | ||
LAR Carson | Motorola Intrac tank overfill protection system is no longer supported. A project has been identified to upgrade it. | All costs to upgrade tank gauging and control systems | ||
LAR Carson | Arc flash labels are not provided on any equipment. There is a program in place to correct this within the next two years. Part of the energized work permitting process is have the facility engineer use the existing ETAP model to calculate the incident energy at the work location. | All costs for installation of required Arc Flash labels, discovered through initial evaluation | ||
LAR Carson | Two single bottom tanks do not have adequate levels of cathodic protection. | All costs related to conduct an initial cathodic protection survey and for addressing any cathodic protection deficiencies discovered | ||
LAR Carson | Cathodic protection levels on the buried facility piping could not be verified due to suspect data. | All costs related to conduct an initial cathodic protection survey and for addressing any cathodic protection deficiencies discovered |
Schedule VI- Page 31 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
2. Los Angeles Refinery Wilmington
Site |
3 rd Party Contractor Identified Risk |
Andeavor Reimbursement |
||
LAR Wilmington | LPG vessels 6000 and 6001 as well as the 700 series LPG vessels (7 total) do not have a back-flow check valve or thermal activated automatic shutdown valve in place as required per NFPA 58. | All costs for upgrades required to comply with NFPA 58 automatic shutdown requirements on tanks 6000 and 6001 and 700 series tanks | ||
LAR Wilmington | Pressure relief devices on V-1700 series pressure vessels (gasoline) vent to atmosphere directly above vessel. | All costs to evaluate requirements and for any related projects required to reroute V-1700 series pressure vessels relief vents | ||
LAR Wilmington | No cable type ground connection between the rack and rail car was observed. | All costs to evaluate grounding requirements at the LPG train car rack and for any related projects required to meet Andeavor standards | ||
LAR Wilmington | The loading safety platforms need upgraded. | All costs to upgrade rail car loading racks to Andeavor Logistics standards | ||
LAR Wilmington | The truck rack lacks a grounding assurance system. | All costs to install interlocks and grounding systems on Truck & Rail racks | ||
LAR Wilmington | Arc flash labeling is incomplete. | All costs for installation of required Arc Flash labels, discovered through initial evaluation | ||
LAR Wilmington | The Honeywell DCS system for both the inline blending area and tank farm is no longer supported. A project has been identified to upgrade to the E300 system. | All costs related to any control system upgrades needed for the Honeywell inline blender | ||
LAR Wilmington | The first phases of the project to upgrade tank gauging to radar type used a wireless system to report data to the control system. Current Andeavor practice is hard wire level transmitters. An evaluation of the security of the wireless system is being conducted. | All costs related to modifying wireless systems to hardwire to meet Andeavor standards. | ||
LAR Wilmington | There is an ongoing, but incomplete project to upgrade the tank gauging system to radar type. Approximately 30 tanks still need to be completed. | All costs to upgrade tank gauging to radar types | ||
LAR Wilmington | No operational cathodic protection exists to protect aboveground storage tanks with single bottom floors or buried facility piping in direct soil contact. | All costs related to addressing cathodic protection deficiencies after verification of cathodic protection surveys | ||
LAR Wilmington | No fixed fire protection on tanks 13506, 13507, 13508, 7200. | All costs to perform a study to determine if facility is in compliance with NFPA codes and for any related projects to comply with fire codes or Andeavor standards |
Schedule VI- Page 32 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
Site |
3 rd Party Contractor Identified Risk |
Andeavor Reimbursement |
||
LAR Wilmington |
The following observations were made related to secondary containment at LARW that will require additional investment:
Erosion of roads and berms was observed (not only asphaltic covering, but the underlying soil starting to show shear, erosion, signs of scouring).
Integrity of sidewalls, cracks observed in concrete around west side tanks (north wall).
Weak and uncoated points in berms.
Tank dike floor has been excavated to below the berm wall substrate in South tank farm, which may compromise the berm integrity.
Piping interconnections between berms should be reviewed as part of the SPCC Plan renewal efforts.
|
All costs to complete SPCC plan review and to make any necessary repairs to improve tank farm berms and roadways at LAR-Wilmington | ||
LAR Wilmington |
LPG Rail and Truck loading racks lack the following safe guards:
No driver card system,
Loading operation is manual,
No predetermined load volume capacity,
No automated gauge/level monitoring,
functional fire detection UV/IR with automatic water deluge (system is installed, but has not been commissioned).
|
All costs for initial review of safe guards and for any resulting improvements required to bring the LPG rail and truck rack up to Andeavor standards | ||
LAR Wilmington | Four clusters of four 80,000 bbl. tanks containing crude, slop, transmix or VGO have comingled secondary containment dikes. An event of loss of primary containment (LOPC) in one tank would spread to the entire surface of the common dike floor, creating a large spill area. If the event is ignited (pool fire) the consequence would be more severe and lead to potential escalation to neighboring tanks. Construction of additional segregation berms would be required for tank segregation containment. | All costs to conduct fire risk study, to determine risks associated with shared containment dikes, and for any related projects required to address NFPA deficiencies | ||
LAR Wilmington | Butane spheres and propane bullets near to the road tanker loading/unloading area are not equipped with flammable or fire detection. | All costs to evaluate fire protection systems to ensure compliance with NFPA, local city regulations and Andeavor fire protection standards; and for any resulting modifications required to comply with above regulations and standards |
3. Mandan Refinery
Site |
3 rd Party Contractor Identified Risk |
Andeavor Reimbursement |
||
Mandan | Multiple tanks grouped into a single secondary containment dike lack subdivision berms resulting in potential spread of spills to inundate all tanks in the group. This increases the risk of loss in the event of a fire. Reference tank groups (743, 745); (737, 738); (741, 756, 707, 709); (715, 714, 710, 708, 712, 711); (742, 744, 720, 718); (719, 722, 721, 732, 756); (757, 716); (717, 740) | All costs to conduct fire risk study, to determine risks associated with shared containment dikes, and for any related projects required to address NFPA deficiencies |
Schedule VI- Page 33 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
Site |
3 rd Party Contractor Identified Risk |
Andeavor Reimbursement |
||
Mandan | Three significant dents are present at the top course of the north face of Tank 734. | All costs to evaluate integrity of tank 734 dents and to make any required repairs | ||
Mandan | U-1A forms are not available for all pressure vessels (bullets and spheres). Modifications, if required, may become complicated without the original manufacture forms. | All costs to perform a refinery engineering review and to document original U-1A forms are on file for all pressure vessels, and all costs to replace any vessels, if required | ||
Mandan | Original drawings indicate shells of the LPG bullets are made of ASTM A212 steel, which historically has had failures associated with brittle fracture. The material is no longer made. Mandan has a DMT of about -20F, so brittle fracture should be considered in vessel materials. | All costs to perform a study, if needed, to evaluate brittle fracture areas on LPG bullet tanks, and to cover any resulting repairs required | ||
Mandan | A majority of the concrete pipe support foundations have experienced heaving/settling, in some cases failing completely, resulting in loss of support of the pipe. Many foundations are cracked, eroded, or completely broken away exposing the reinforcing steel and are no longer providing support to the piping. | All costs to perform a study to evaluate tank farm pipe foundations and supports in question and any costs to address deficiencies discovered | ||
Mandan | Several supports for the 14 jet fuel pipe routed along the west side of Tank 734 have failed completely. The pipe is spanning approximately 80-0 unsupported which could result in overstress. | All costs to repair supports on the 14 jet piping along the west side of TK-734 | ||
Mandan | The LPG transfer pump 759 and 759S foundation and support slabs are compromised and do not provide sound support or drip containment for the pumps. Refinery stated the pump foundations are slated for replacement. | All costs for projects to repair or replace LPG pump 759 and 759S foundations | ||
Mandan | Pump 778 has issues with its dry well collecting liquids which can freeze and cause misalignment of the pump. Other pumps in the area (e.g. 759) do not have the same capacity as 778, so when pump 778 goes down flow to the process is limited. Refinery personnel indicated a project to relocate pump 778 is in initial stages to determine funding. | All costs to conduct a complete mechanical reliability evaluation of pump 778 and to upgrade and or relocate, as needed | ||
Mandan | No document control for P&ID updates or revisions. Work history on pumps is only available for the past year due to the new system for tracking pump maintenance. | All costs to evaluate document controls and determine if appropriate P&IDs, plot plans, isometric and electrical one-line drawings and maintenance records are in place, as well as to prepare any required documents. | ||
Mandan | The rail car loading stations on track 8 have catch basins for spill collection. The catch basins are piped to a sump with integrity of buried pipe unknown. | All costs of recommended underground piping replacements, as a result of initial catch basin inspections. Inspections are being implemented into refinery inspection programs for rail car loading stations. | ||
Mandan | Cable tray and conduit has failed at many locations due to being exposed to snow loads, or due to settling/heaving or failure of pipe supports. Failed conduit may be located in classified areas, with internal wiring exposed. | All costs to perform a survey of the tank farm and identify any failed trays and conduits and implement projects to repair. |
Schedule VI- Page 34 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
Site |
3 rd Party Contractor Identified Risk |
Andeavor Reimbursement |
||
Mandan | Fire and Gas detection is typical of this type of facility and consists of direct observation by field personnel. | All costs to perform a study to determine if facility is in compliance with NFPA codes and for any related projects to comply with fire codes or Andeavor standards | ||
Mandan | 35 storage tanks do not have fixed fire protection systems for delivery of foam to the tank interior. | All costs to perform a study to determine if facility is in compliance with NFPA codes and for any related projects to comply with fire codes or Andeavor standards | ||
Mandan | Fire foam piping within the tank farm is poorly supported due to support failure. Supports have jacked or settled and, in several locations, are no longer supporting the piping. | All costs to conduct a survey of the tank farm, to determine if there are failed fire foam piping supports, and for any resulting projects required to make repairs | ||
Mandan | Storage tank level monitoring varies throughout tank farm. Some tanks do not have independent high-level switches. Some tanks do not have levels that report to the control roomlevel is monitored at the tank using the gauge board. Lack of high level switches increases potential for overfill. | All costs to conduct a survey of the Andeavor requirement for high level switches, and for any resulting projects to address deficiencies | ||
Mandan | No lightning protection system was observed on storage tanks with EFRs. | All costs to evaluate requirements for lightning protection on storage tanks and to address any deficiencies to Andeavor standards | ||
Mandan | Cathodic protection of the buried product facility piping could not be verified as CP monitoring is not being performed on an annual basis. | All costs related to conduct an initial cathodic protection survey and for addressing any cathodic protection deficiencies discovered | ||
Mandan | Cathodic protection of the tank bottoms could not be verified as perimeter readings are being obtained and the data is suspect. | All costs related to conduct an initial cathodic protection survey and for addressing any cathodic protection deficiencies discovered | ||
Mandan | Tracks have significant settlement at decanted oil, diesel and jet, and LPG transfer areas. | All costs for one-time 3rd party rail integrity assessment and any repair recommendations identified | ||
Mandan | Rail electrical isolation between mainline and spurs to decanted oil, diesel and jet, and LPG transfer areas appears to be compromised. | All costs for one-time 3rd party rail integrity assessment and any repair recommendations identified | ||
Mandan | Foundations have settled or heaved creating unleveled walking surfaces and tall bottom steps to grade creating fall hazards. | All costs to conduct a survey of stairways not in compliance with OSHA requirements and those with uneven walking surfaces and for any resulting projects required to address safety concerns |
Schedule VI- Page 35 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
Site |
3 rd Party Contractor Identified Risk |
Andeavor Reimbursement |
||
Mandan | Access ladders at the aboveground storage tanks exceed OSHA height limits without intermediate landings and do not include safety cages or fall protection devices. | All costs to conduct a survey of tank access ladders for compliance with OSHA and for any resulting repairs required to address deficiencies | ||
Mandan | The SPCC Plan does not document the volumes of the secondary containment calculations. The numbers presented in the plans are the design basis for the containments. | All costs to perform SPCC Plan update and for any resulting secondary containment improvements required | ||
Mandan | RSR compliance modifications are excluded from tank inspection plan. Three tanks have been identified that will require equipment upgrades for compliance with the Refinery Sector Rules (RSR) provisions for tank seal and gaskets. The Refinery cost estimates have been identified for the three tanks. Future inspections are expected to identify similar missing seals on smaller openings and equipment modifications related to RSR compliance have not yet been determined for 7 other tanks. | All costs to complete inspections for tanks subject to refinery sector rules and for any resulting modifications or repairs required to address deficiencies related to RSR compliance | ||
Mandan | Ethanol tank (Tank 758) will need IFR or vapor control. Tank just moved into Group 1 and is now in Refinery Sector Rule (RSR). | All costs to install IFR or similar vapor controls on Ethanol tank 758, required to ensure compliance with Refinery Sector Rule | ||
Mandan | The rack drip pans and rail loading area drain to a sump. Based on discussions with Operations and Environmental, it was unclear who inspects/monitors the sump and if the sump is currently operational because it was disconnected from the truck rack. The sump is not equipped with an automated pump or alarm. The concrete sump appears to be in poor condition with spalling and cracks present, an indication of integrity concerns. A hydrocarbon sheen was observed on the water in the sump and the ground adjacent to the sump. | All costs to perform a study, evaluating integrity of the sump and its function in the context of SPCC plan | ||
Mandan |
Horse trough sump collects steam condensate and reciprocating pump compressor oil from LPG truck rack and LPG and butane storage tanks. A hydrocarbon sheen was observed on the water in the sump and on the ground adjacent to sump,
indicative of an overfill of the sump.
|
All costs to perform a study, evaluating integrity of the sump and its function in the context of SPCC plan | ||
Mandan | Tanks in the tank farm did not have automated level indication. The facility is currently in the execute stage of the tank field modernization project that will see each tank receive automated level indication (MOC M20181397-001). | All costs related to installation of independent High level switches on tanks, as part of tank modernization project |
4. Salt Lake Refinery
Site |
3 rd Party Contractor Identified Risk |
Andeavor Reimbursement |
||
Salt Lake | Tanks sharing a dike cell lack intermediate berms and do not provide 100% separation with the other tanks in such that they could inundate the adjacent tank if a spill occurred. A spill fire would be contained within the main diked area. | All costs to conduct fire risk study, to determine risks associated with shared containment dikes, and for any related projects required to address NFPA deficiencies |
Schedule VI- Page 36 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
Site |
3 rd Party Contractor Identified Risk |
Andeavor Reimbursement |
||
Salt Lake | Many dike walls contain open culverts for communication between containment cells, or unsealed casings between cells. As a result, containment dike walls do not provide 100% separation with the other tanks in such that they could inundate the adjacent tank if a spill occurred. A spill fire would be contained within the main diked area. | All costs to conduct fire risk study, to determine risks associated with shared containment dikes, and for any related projects required to address NFPA deficiencies | ||
Salt Lake | Tank 325 was modified with 6 vertical channel stiffeners at the north side of the tank to maintain the shape of the tank due to a reported fire in 1989. Refinery staff indicated issues with the floating roof snagging on the shell. | All costs to conduct an inspection of tank 325 and to address repairs through refinery tank repair program | ||
Salt Lake | The shell at the bottom two courses of Tank 322 appears to be bulging, and the inspections group has been notified. | All costs to conduct an inspection of tank 322 and to address repairs through refinery tank repair program | ||
Salt Lake | Dents or shell wall distortion is present at the 3rd and 4th course at the east side of tank 297, and at the base course of tank 308. | All costs to conduct inspections of tanks 297 and 308 and to address repairs through refinery tank repair program | ||
Salt Lake | Riveted tanks are notes as weeping, resulting in staining on the ground. | All costs to conduct inspections of applicable riveted tanks and to address repairs through refinery tank repair program | ||
Salt Lake | Tank 204 containment area has hydrocarbon product seeping from underground around the perimeter of the tank with oil staining at the gravel directly beneath the tank chime and throughout the containment dike areas. | All costs for managing Tank 204 asphalt contamination remediation and clean up, including any required tank inspections or related repairs or modifications | ||
Salt Lake | Floating oil at surface water present at tank 247 due to storm water backup to oily waste system during rain event. | All costs to clean up tank 247 containment due to stormwater backups | ||
Salt Lake | Out of service and dead leg piping in the tank farm is not actively managed. | All costs to conduct a study to identify out of service and dead leg piping in the tank farm and for any projects required to address recommendations per Andeavor standards | ||
Salt Lake | Some grounding operations at loading/unloading racks do not have ground proving (Scully) systems in place. | All costs to conduct an evaluation of the potential need for ground proving interlocks on truck racks and for any resulting upgrades required per Andeavor Standards | ||
Salt Lake | The butane loading rack buildings concrete column and roof girders are heavily spalled with exposed reinforcing steel throughout. | All costs to conduct an evaluation of the butane loading rack building concrete columns and roof girders, and for any projects required to address resulting recommendations |
Schedule VI- Page 37 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
Site |
3 rd Party Contractor Identified Risk |
Andeavor Reimbursement |
||
Salt Lake | No automated fire or gas detection systems were observed; however this is typical for this type of facility. | All costs to perform a study to determine if facility is in compliance with NFPA codes and for any related projects to comply with fire codes or Andeavor standards | ||
Salt Lake | 27 storage tanks do not have fixed fire protection systems for delivery of foam to the tank interior. | All costs to perform a study to determine if facility is in compliance with NFPA codes and for any related projects to comply with fire codes or Andeavor standards | ||
Salt Lake | The fire foam piping at 5 of the tanks with fire foam chambers extend down the shell with a flanged connection near grade. The fire foam piping does not extend to the edge of the containment dike. In the event of a fire, fire department would not have access to the foam piping connection without entering the dike and bolting up a flange. Connection to the existing flanged connection at the tank shell is unlikely to occur in the event of a fire event. | All costs to perform a study to determine if facility is in compliance with NFPA codes and for any related projects to comply with fire codes or Andeavor standards | ||
Salt Lake | The software controlling the gasoline blender pumps is outdated and no longer supported. | All costs related to upgrading the automation controls at the blender per Andeavor standards | ||
Salt Lake | Storage tank level high-high level switches are not independently hardwired back to the DCS. | All costs related to installing High-High level switches to comply with NFPA 30 Chapter 21.7.1.1 and Andeavor standards | ||
Salt Lake | Tank level alarms set higher than currently recommended by API 2350 resulting in recent overfill of one of the vessels. | All costs to conduct an alarm rationalization study on tank level alarm settings and to make required revisions in control systems per Andeavor standards | ||
Salt Lake | Cathodic protection levels could not be verified for select aboveground storage tank bottoms and the buried facility piping. | All costs related to conduct an initial cathodic protection survey and for addressing any cathodic protection deficiencies discovered | ||
Salt Lake | Asphalt seeps were observed within the bermed area at Tank 204. The seeps cover areas around Tank 204 and can impact operations within the containment area. | All costs for managing Tank 204 asphalt contamination remediation and clean up, including any required tank inspections or related repairs or modifications | ||
Salt Lake |
The following issues with secondary containment and stormwater/wastewater management were identified at the Site:
1) a survey of secondary containment volumes was completed during 2018 to confirm adequacy with respect to SPCC requirements; the report identified that Tanks 244 and 245 have inadequate secondary containment capacity and redesign is anticipated by the environmental representative.
2) The manual drain valve for the secondary containment berm around Tank 157 was reported by site personnel to be maintained open to allow general stormwater drainage from the depressed (low-area), exterior roadway to drain water from the road into the bermed area for storage/evaporation in an effort to reduce flooding; however, this is contrary to SPCC requirements. |
All costs related to addressing improvements to SPCC plan containment and stormwater related deficiencies, as well as all costs related to wastewater cleanup |
Schedule VI- Page 38 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
Site |
3 rd Party Contractor Identified Risk |
Andeavor Reimbursement |
||
3) Free phase oil mixed with water was observed within the secondary containment berm for Tank 247. The site representative reported that the wastewater treatment facility capacity can be overwhelmed following heavy precipitation events, as occurred the day before the site visit. The backup of hydrocarbon containing wastewater into the tank berms reduces the secondary containment capacity and could result (temporarily) in noncompliance with the SPCC requirements as well as additional H&S and remediation activities. | ||||
Salt Lake | Site is in the process of completing a Baker Risk facility siting evaluation. Based on visual evidence and interviews with site personnel, major equipment relocation costs are anticipated. | All costs for repairs or projects to address risk reduction recommendations from Baker Risk Siting evaluation | ||
Salt Lake | Eleven tanks have been identified that will require equipment upgrades in 2025 for compliance with the Refinery Sector Rules (RSR) provisions for tank seal and fitting vapor controls. The Refinery cost estimates are presented in the plant Ten Year Tank and Boiler Plan 2017. | All costs for tank seal and fitting vapor controls projects required for compliance with Refinery Sector Rules | ||
Salt Lake |
The RSR rule requires venting to be controlled during equipment maintenance. The Site has not yet identified the extent of equipment and maintenance shutdown venting that may be subject to the emission control measures required by the rule. |
All costs for venting and emission controls projects required for compliance with Refinery Sector Rules | ||
Salt Lake |
The OMD (Oil Movements Division) PHA included the tank farm and remote tank farm. This PHA is currently in draft and under Site review. The PSM coordinator specifically indicated two recommendations will need to be corrected and are likely to be material: (1) A corrosion study needs to be completed and recommendations implemented. (2) More than 20 deadlegs were identified that potentially would need to be removed from service throughout the tank farm. |
All costs to finalize PHA study and obtain related recommendations and then to address findings | ||
Salt Lake | Three railcar derailments have occurred at the Site in the last 8 months, with one major derailment that required third party intervention to upright the cars. Facility representatives stated that one derailment was caused by ice and the other two derailments were caused by a rail integrity issue. The portion of the rail that was causing the issue was not identified during routine rail inspections. Representatives reported that the root cause of the rail integrity issue has not been identified. This rail section has since been replaced. Without understanding the integrity issue failure, the Site is not able to proactive address other sections of rail that may have similar integrity issues. | All costs for one-time 3rd party rail integrity assessment and any repair recommendations identified |
Schedule VI- Page 39 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
Site |
3 rd Party Contractor Identified Risk |
Andeavor Reimbursement |
||
Salt Lake | No hydrocarbon detection and alarm systems exist in the LPG truck loading area that could notify operations of a continuous release. An LPG release in close proximity to loading trucks accessing the rack could result in a high consequence event. | All costs to evaluate the potential need to install hydrocarbon detection and alarms at the LPG truck loading rack and to ensure compliance with NFPA and Andeavor Fire Standards, and then to address any deficiencies discovered | ||
Salt Lake | There are >20 tanks that will require foam injection capabilities to be added to meet Andeavor standards requirements. | All costs to conduct a study of fire protection systems and identify tanks needing modification to comply with NFPA or Andeavor fire protection standards, and then to address any deficiencies discovered | ||
Salt Lake | A 2011 Hydraulic Model Study identified the blending facility lacks potential firefighting infrastructure. | All costs for upgrading the firefighting infrastructure at the blending facility per Andeavor standards | ||
Salt Lake | Five pressure relief devices (PRD) within the tank farm are anticipated to be subject to the RSR PRD standards. The Site has not yet completed the regulatory evaluation and the final applicability determination. PRD monitoring systems are required for systems to be in compliance with the rule. | All costs to conduct a regulatory evaluation to determine if PRD monitoring systems are required to comply with Refinery Sector Rules, and then to address any deficiencies identified |
5. Bakken Link and Fryburg
Site |
3 rd Party Contractor Identified Risk |
Andeavor Reimbursement |
||
BakkenLink | The Arc Flash labels do not meet the requirements of the 2014 NEC (130D). The existing labels display the fault current but not the PPE requirements or the safe work zone. A 2018 project is in progress to complete an Arc Flash Study. | All costs related project to install Arc Flash labels | ||
BakkenLink | Some CP test point locations do not exhibit adequate levels of cathodic protection. | All costs related to addressing cathodic protection deficiencies after verification of cathodic protection surveys. | ||
BakkenLink | The Arc Flash labels do not meet the requirements of the 2014 NEC. The existing labels display the fault current but not the PPE requirements or the safe work zone. A 2018 project is in progress to complete an Arc Flash Study. | All costs for installation of required Arc Flash labels, discovered through initial evaluation | ||
BakkenLink | The Arc Flash labels do not meet the requirements of the 2014 NEC. The existing labels display the fault current but not the PPE requirements or the safe work zone. A 2018 project is in progress to complete an Arc Flash Study. | All costs related project to install Arc Flash labels | ||
BakkenLink | The aboveground storage tank shells were not grounded for lightning protection per NFPA requirements with the exception of the tanks at the Fryburg Rail Terminal. | All costs related to evaluate requirements for grounding tank shells for lightning protection per NFPA requirements and for any resulting repairs or projects required for NFPA compliance |
Schedule VI- Page 40 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
Site |
3 rd Party Contractor Identified Risk |
Andeavor Reimbursement |
||
BakkenLink | Several test points on the buried facility piping and tank bottoms do not exhibit adequate levels of cathodic protection. | All costs related to addressing cathodic protection deficiencies after verification of cathodic protection surveys | ||
Dry Creek | An engineered drainage swale is present on the south side of the facility. Facility receives runoff from the eastern adjacent property that bypasses the engineered drainage swale and has eroded a swale along the northern boundary of the facility. | All costs related to conducting a study for diversion of offsite runoff away from the facility to eliminate erosion on the property and any resulting projects required | ||
Fryburg | Sedimentation into and erosion of the tank berms has diminished the design containment capacity and sufficient freeboard. Due to the presence of excessive sediment and standing water within the tank farm secondary containment, there is a reduction in containment volume. | All costs related to conducting a study of existing containment capacity to ensure that sufficient containment exists (ensuring that the study includes accumulated precipitation and sedimentation in the containment calculations) and costs to correct resulting noted deficiencies | ||
Fryburg | There is inadequate secondary containment for 110% of the largest vessel (a rail car) spill at the diesel car rail loading area. | All costs related to conducting and documenting a secondary containment impracticability study |
6. Clearbrook Tankage, Minnesota Pipeline and Aranco Pipeline
Site |
3 rd Party Contractor Identified Risk |
Andeavor Reimbursement |
||
Clearbrook | ClearbrookThe transfer pipe between the primary and auxiliary roof drain sumps on Tank-14 cracked during the winter of 2017 / 2018 resulting in contents of the tank accumulating on the floating roof. The issue has been temporarily addressed by facility operators and the tank construction contractor has been notified to perform warranty repairs. A member of the Partnership Group should verify repairs are made. | All costs to make any required repairs related to the transfer pipe between the primary and auxiliary roof drain sumps on Tank-14. | ||
Clearbrook | ClearbrookThe fire foam piping at Tanks 14 and 15 extend down the shell with a flanged connection near grade. The fire foam piping does not extend to the edge of the containment dike. In the event of a fire, the local volunteer fire department does not have access to the flanged connection from the access road. Connection to the existing flanged connection at the tank shell is unlikely to occur in the event of a fire event. | All costs to evaluate fire safety risk with 3rd party Operator and for resulting required project to route foam connections outside of the containment berm to a safe location. | ||
Clearbrook | ClearbrookLife of the semi-deep anode groundbeds could be reduced due to the absence of a venting system and use of non-chemically resistance anode lead cables. | All costs related to conducting a cathodic protection inspection and for any resulting repairs required. | ||
Clearbrook | Tank 14 and 15 are designed to have foam for firefighting. The foam pipes end at the base of the tank so if there is a fire, firefighting crews will not be able to get close enough to the tanks to connect to the foam dispersal pipes. | All costs to evaluate fire safety risk with 3rd party Operator and for resulting required project to route foam connections outside of the containment berm to a safe location. |
Schedule VI- Page 41 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
Site |
3 rd Party Contractor Identified Risk |
Andeavor Reimbursement |
||
Clearbrook | Tanks 14 and 15 are equipped with IFRs. The drain line between the secondary sump and the primary sump in Tank 14 leaked in the winter of 2017/2018. The leak discharged oil to the top of the IFR. The line between the secondary sump and the primary sump has been blinded in Tank 14 to eliminate a future recurrence of a release. Maintenance/repair of line will occur at next internal inspection. Repair costs will be material if undertaken outside of scheduled tank inspection. | All costs related to ensuring repairs are addressed in a timely manner and for any repairs required, which are not covered under tank warranty. |
7. Conan Gathering System
Site |
3 rd Party Contractor Identified Risk |
Andeavor Reimbursement |
||
Conan |
Pipe traps may not have proper dimension to support ILI tools. Oversize pipe segment (barrel) appears to be too short. Also, no flanges are provided to allow for extending the barrel length.
# Receivers: 85 (assuming only receivers at CTBs, TULs and Conan Terminal in scope)
# Launchers: 79 (assuming only launchers at CTBs and TULs in scope).
It appears the launchers/receivers could be prepared for ILI using a replacement barrel and additional pipe spools (sharing of the replacement barrel and piping is dependent on diameter; system contains piping with diameter 6, 8, 10, 12 and 16).
Estimated cost for 10 extended barrels (launcher and receiver) and associated piping: $500k. |
All costs related to correcting design issues with receivers and launchers. | ||
Conan |
Currently the leak detection system is mass balance system and is scheduled to be upgraded to ATMOS (quote was provided to project manager). Andeavor typically uses CPM through ATMOS.
Total 91 Coriolis meters installed.
Price to upgrade to ATMOS CPM is approx. $500k. |
All costs to evaluate if ATMOS system is needed and for any resulting upgrade of the leak detection systems. | ||
Conan | Fire SuppressionA modification to the tank fire protection system at Conan Terminal was ordered by EOG and is scheduled (Protect-O-Burn Self Expanding Foam System for rim seal protection on (3) tanks). Allocation of additional $1.2MM quoted cost for entire system is unknown. | All required costs to upgrade the fire system for rim seal protection on 3 tanks as ordered by EOG after determination of Andeavor Entity/Partnership Group allocation | ||
Conan |
Although the facilities are exempt from industrial stormwater permitting requirements by rule, it is not clear whether the design of the facilities is adequate to prevent discharges of contaminants that could otherwise trigger individual permit requirements.
Division berms and grading design may be insufficient to control drainage across the facilities (Hercules TUL in particular) and prevent stormwater from coming in contact with pollutants associated with process and truck unloading areas prior to off-site discharge
Stormwater tanks associated with the truck unloading areas should be assessed for adequate capacity for the amount of received drainage
Improved stormwater management/diversion practices are likely to be material. |
All costs related to conduct an engineering design study for addressing containment of storm water within the property and for any resulting required projects to address deficiencies in storm water containment. |
Schedule VI- Page 42 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
8. Rio Pipeline, Stateline and Midland Terminals
Site |
3 rd Party Contractor Identified Risk |
Andeavor Reimbursement |
||
Midland Terminals: Geneva/Zurich/Rio Pipeline | Rio Pipeline & Midland Short Haul PipelinesCIS has not been performed to evaluate stray current interference from foreign operators. | All costs related to addressing cathodic protection deficiencies after verification of cathodic protection surveys. | ||
Midland Terminals: Geneva/Zurich/Rio Pipeline | Rio Pipeline Rectifier #2 and #3 do not have AC power installed. | All costs related to projects required to install power to rectifiers #2 and #3 | ||
Midland Terminals: Geneva/Zurich/Rio Pipeline | GenevaThe intermediate tank containments did not provide 100% separation with the other tanks in such that they could inundate the adjacent tank if a spill occurred. A spill fire would be contained within the main diked area. | All costs related to conducting a fire risk study and to address any resulting deficiencies in compliance with NFPA codes, if required. | ||
Midland Terminals: Geneva/Zurich/Rio Pipeline | Geneva & ZurichPipe supports do not allow for pipe flexibility and piping is likely overstressed on the longer pipe runs at the facilities. | All costs to conduct a study of the piping and for any resulting repairs required to address facility piping stresses | ||
Midland Terminals: Geneva/Zurich/Rio Pipeline | Geneva & ZurichArc flash labeling is incomplete. | All costs for installation of required Arc Flash labels, discovered through initial evaluation | ||
Midland Terminals: Geneva/Zurich/Rio Pipeline | Geneva & ZurichThe aboveground storage tank bottoms and facility piping do not exhibit adequate levels of cathodic protection at some test point locations. | All costs related to addressing cathodic protection deficiencies after verification of cathodic protection surveys. | ||
Midland Terminals: Geneva/Zurich/Rio Pipeline | Geneva & ZurichThe stair cross overs for piping and cable tray was not OSHA compliant. The tread depth was smaller than 10 and the height of the treads was over 7.5. | All costs related to fix deficiencies on identified stairways not meeting OSHA compliance | ||
Stateline Terminal | Pipe supports do not allow for pipe flexibility and piping is likely overstressed on the longer pipe runs at the facility. | All costs to conduct a study of the piping and for any resulting repairs required to address facility piping stresses | ||
Stateline Terminal | The 10 truck lanes that are not metered and use the truck pumps to unload crude to tanks SL-1 & SL-2. The unloading trucks have no protection or warning if a downstream valve was closed. The truck pump will deadhead against the closed valve. | All costs related to installing overpressure or other protection controls on truck loading racks for tanks SL-2 & SL-2 | ||
Stateline Terminal | MCC Module panelboards and building disconnects lack Arc flash labels. | All costs for installation of required Arc Flash labels, discovered through initial evaluation | ||
Stateline Terminal | Alarms and controls for truck offloading need to be reviewed. Power fluctuations are causing a flow control valve to close and divert product to the sump. | All costs related to upgrading electrical infrastructure at truck rack to prevent flow control valve closing and diverting product to sump |
Schedule VI- Page 43 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
Site |
3 rd Party Contractor Identified Risk |
Andeavor Reimbursement |
||
Stateline Terminal | There are no control interlocks on ten of the truck loading lanes. Hoses and fittings can overpressure when flow control valves are closed as a result of site power fluctuations. | All costs related to installing truck rack overpressure control interlocks on truck loading lanes. | ||
Stateline Terminal | Ten of the truck loading spots are not equipped with truck grounding indication or any interlocks with the offloading operation. | All costs related to installing ground proving interlocks and or grounding systems at loading racks | ||
Stateline Terminal | The stair cross overs for piping and cable tray is not OSHA compliant. The tread depth was smaller than 10 and the height of the treads was over 7.5. | All costs related to fix deficiencies on identified stairways not meeting OSHA compliance | ||
Zurich, Geneva |
The following issues with secondary containment were identified:
The off-loading is not equipped with secondary containment.
No design basis for secondary containment berm around Tanks (e.g., survey and geotechnical data on construction materials). |
All costs related to conducting a containment survey and validating SPCC Plan and for any resulting projects required to address deficiencies found | ||
Geneva |
The following issues related to secondary containment were noted:
Facility off-loading lacks secondary containment.
No design basis for secondary containment berm around tanks (e.g., survey and geotechnical data on construction materials);
Blowing sand has filled part of secondary containment and berm erosion has occurred.
Additional concerns with containment capacity based on tank manifolding (three tanks are manifolded such that failure from one tank results in release from all three). |
All costs related to conducting a containment survey and for any resulting projects required to address deficiencies found | ||
Geneva |
The following issues related to secondary containment were identified:
Inadequate secondary containment capacity for H2S scavenger stored in unloading area. |
All costs related to conducting a containment survey and validating SPCC plan and for any resulting projects required to address deficiencies found | ||
Stateline | Crude release (24.4 Bbls) occurred on March 8, 2018 due to power outage, which flowed across property and off-site onto a neighboring. Remedial actions are in process. Additional information is required to ensure that the cleanup meets Texas cleanup requirements. | All costs related to indemnify for long term subsurface liability, if warranted, and to ensure remedial efforts meet the TCEQ Standards | ||
Stateline | Lack of documentation indicating if retention pond has adequate capacity to prevent uncontrolled discharge from facility. | All costs related to conducting a study to determine capacity of stormwater retention pond and for making any resulting upgrades to ensure compliance with permits |
Schedule VI- Page 44 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
9. Wink Station, Mason East Station, Yucca and Mesquite Truck Stations, Bobcat Pipeline
Site |
3 rd Party Contractor Identified Risk |
Andeavor Reimbursement |
||
Wink Station, Bobcat Pipeline, and Jack Rabbit Short Haul Pipelines | Bobcat & Wink Short Haul PipelinesThe pipelines do not exhibit adequate levels of cathodic protection at multiple test point locations. | All costs related to addressing cathodic protection deficiencies after verification of cathodic protection surveys. | ||
Wink Station, Bobcat Pipeline, and Jack Rabbit Short Haul Pipelines | Bobcat & Wink Short Haul PipelinesCIS has not been performed to evaluate stray current interference from foreign operators. | All costs related to addressing cathodic protection deficiencies after verification of cathodic protection surveys. | ||
Wink Station, Bobcat Pipeline, and Jack Rabbit Short Haul Pipelines | Consider appropriate measures for leak detection including CPM systems such as ATMOS or Telvent. | All costs to conduct a study to determine if additional leak detection measures are needed and for any resulting projects required to address leak detection deficiencies | ||
Wink Station, Bobcat Pipeline, and Jack Rabbit Short Haul Pipelines | MCC Module panel boards, vendor modules and skids, and cathodic protection equipment lack Arc flash labels. | All costs for installation of required Arc Flash labels, discovered through initial evaluation | ||
Wink Station, Bobcat Pipeline, and Jack Rabbit Short Haul Pipelines | Kinder Morgan and Plains sites lack arc flash labels. | All costs for installation of required Arc Flash labels, discovered through initial evaluation | ||
Wink Station, Bobcat Pipeline, and Jack Rabbit Short Haul Pipelines | Tank 3513One test point location does not exhibit adequate levels of cathodic protection. | All costs related to addressing cathodic protection deficiencies after verification of cathodic protection surveys | ||
Wink Station, Bobcat Pipeline, and Jack Rabbit Short Haul Pipelines | Jackrabbit StationCathodic protection levels of the buried facility piping could not be verified as CP monitoring is not being performed on an annual basis. | All costs related to addressing cathodic protection deficiencies after verification of cathodic protection surveys | ||
Mason Station East | A study was conducted by Rooney Engineering after a flooding event occurred. Some upgrades were made based on the study, but similar rain events have not reoccurred yet to determine if the corrective measures were adequate. Further evaluation and additional upgrades could be required | All costs related to addressing any remaining Rooney Engineering recommendations deemed necessary for mitigation of facility flooding | ||
Mason Station East | MCC Module, fire pump building, and warehouse building panel boards lack arc flash labels. | All costs for installation of required Arc Flash labels, discovered through initial evaluation | ||
Mason Station East | The aboveground storage tanks do not exhibit adequate levels of cathodic protection at some test point locations. | All costs related to addressing cathodic protection deficiencies after verification of cathodic protection surveys | ||
Mason Station East | Cathodic protection levels of the buried facility piping could not be verified as CP monitoring is not being performed on an annual basis. | All costs related to conduct an initial cathodic protection survey and for addressing any cathodic protection deficiencies discovered |
Schedule VI- Page 45 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
Site |
3 rd Party Contractor Identified Risk |
Andeavor Reimbursement |
||
TexNewMexX: Yucca & Mesquite | Mesquite & Yucca Some MCC Module panel boards and cathodic protection equipment lack arc flash labels. | All costs for installation of required Arc Flash labels, discovered through initial evaluation | ||
TexNewMexX: Yucca & Mesquite | Mesquite & Yucca Cathodic protection levels of the buried facility piping could not be verified as CP monitoring is not being performed on an annual basis. | All costs related to addressing cathodic protection deficiencies after verification of cathodic protection surveys |
10. Jal NGL Storage Facility
Site |
3 rd Party Contractor Identified Risk |
Andeavor Reimbursement |
||
Jal | Out-of-service fractionator equipment has been abandoned in place with heat exchanger heads open, vessel manways open, open-ended piping. There is no HazCom signage (i.e. regarding confined spaces, ACM, lead-based paint) and the volume/quantity of lead based paint and ACM has not been quantified. | All costs related to conduct study to determine if tanks should be demolished and associated costs to demolish tanks, if needed | ||
Jal | The facility siting study required under PSM is not based on the current site layout. | All costs related to evaluation of facility siting based on current site layout and for any resulting modifications required | ||
Jal NGL Storage Facility | A number of concrete piping supports are cracked or completely broken away exposing the rebar. | All costs related to repairing identified broken concrete pipe supports | ||
Jal NGL Storage Facility | The rail access platform was constructed in the late 1950s with the construction of the fractionation plant and currently would be unable to support the weight of a new safe rack gate system if future safety upgrades are required. | All costs to conduct a study of the rail access platform and for any resulting projects required to make safety improvements to meet Andeavor standards | ||
Jal NGL Storage Facility | The LGP rail access platforms have no overhead tie-in safety system for the operators to use when accessing the top of the rail cars. | All costs related to projects to upgrade rail car racks loading platforms to ensure safe access to meet Andeavor standards | ||
Jal NGL Storage Facility | Well-degasser needed for facility. A casing leak could lead to butane in water which settles into storage ponds for a large flashing to atmosphere scenario. If ignition source is found near pond this could lead to a vapor cloud explosion. | All costs related to evaluation of potential casing leak scenario and costs to implement recommended safe practices | ||
Jal NGL Storage Facility | T-825 does not have a U-Stamp affixed to the vessel and will require replacement of the vessel. |
All costs related to installation of a new vessel or to provide certification and U-stamp for T-825. |
||
Jal NGL Storage Facility | Arc flash labeling is not provided on any of the electrical equipment. | All costs for installation of required Arc Flash labels, discovered through initial evaluation | ||
Jal NGL Storage Facility | Area classification drawings are not available. | All costs to create and stamp facility electrical area classification drawings |
Schedule VI- Page 46 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
Site |
3 rd Party Contractor Identified Risk |
Andeavor Reimbursement |
||
Jal NGL Storage Facility | No on-site water or foam supply for fire protection. Fire protection is provided by volunteer fire department with limited resources for water supply. | All costs related to making required water or foam supply modifications to comply with Andeavor fire protection standards | ||
Jal NGL Storage Facility | No fire or gas detection is provided. Operations is particularly concerned with the lack of fire and gas detection in the pumphouse. | All costs related to performing an evaluation to determine if additional fire or gas detection is needed and for installing fixed gas detection monitors and or ESD at the pumphouse as per Andeavor standards | ||
Jal NGL Storage Facility | A SCADA control system is not installed. All controls and interlocks are directly hardwired, and remote monitoring is not provided for operators. | All costs for installation of remote monitoring or SCADA control systems to meet Andeavor standards | ||
Jal NGL Storage Facility | Consideration should be given to performing a PHA and evaluating the need for additional ESD valves for the wells. | All costs related to conducting a PHA study and for any required projects to address deficiencies | ||
Jal NGL Storage Facility | Tank 825 is not equipped with any pressure instrumentation, temperature instrumentation, or automated valves. Recommend evaluating the need for additional monitoring and protection for the tank. | All costs to perform automation study and for any resulting projects to install automation instrumentation for tank 825 to meet Andeavor standards | ||
Jal NGL Storage Facility | The booster pump and Tank 825 are not equipped with bonding jumpers. | All costs to survey facility and identify any conduit fittings missing bonding jumpers and to address deficiencies | ||
Jal NGL Storage Facility | Some liquid-tight fittings are not installed with bonding jumpers. | All costs to survey facility and identify any conduit fittings missing bonding jumpers and to address deficiencies | ||
Jal NGL Storage Facility | Tank ground indication is not provided at the rail rack. | All costs related to installation of pump interlocks and ground proving (Scully) systems on rail rack to meet Andeavor standards | ||
Jal NGL Storage Facility | Pump interlocks with the truck rack and rail rack grounding systems are not provided. | All costs to install pump interlocks and ground proving (Scully) systems on truck rack to meet Andeavor standards | ||
Jal NGL Storage Facility | Two truck loading spots are not provided with ground indication. | All costs to install ground proving (Scully) systems on truck racks to meet Andeavor standards | ||
Jal NGL Storage Facility | No active CP systems or monitoring program is in place for the buried facility piping. A foreign CP system is adjacent to the facility which could be cause stray current interference. | All costs related to addressing cathodic protection deficiencies after verification of cathodic protection surveys |
Schedule VI- Page 47 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
11. |
Wingate Terminal |
Site |
3 rd Party Contractor Identified Risk |
Andeavor Reimbursement |
||
Wingate | Secondary containment around four legacy sphere tanks has torn liner that is in need of repairs or replacement. Two spheres have containment without liners. | Once a study sphere use is complete, all costs related to conducting a study on secondary containment and for any resulting requirements to address deficiencies. | ||
Wingate | Two artesian water wells (No. 3 and 4) have leaking casings at the tops of the well heads. The leaking water created a >1-acre wetland area that is permanently saturated. The costs to re-drill the wells would be material. A recent NMED inspection identified the need to repair the wells. | All costs for any mechanical integrity repairs to water wells No. 3 and 4 associated with recent inspection reports identifying need to redrill the water wells | ||
Wingate Terminal | The rail access platform was constructed in the late 1950s with the construction of the fractionation plant and currently would be unable to support the weight of a new safe rack gate system if future safety upgrades are required. | All costs to conduct a study of the rail access platform and for any resulting projects required to make safety improvements to meet Andeavor standards | ||
Wingate Terminal | The concrete foundation under propane tank 518 has a significant crack that exposes the rebar inside the foundation and is a structural concern | All costs related to either repairing the foundation or removing the vessel | ||
Wingate Terminal | No back-flow check valve or thermal activated automatic shutdown valve in place as required per NFPA 58. | All costs related to making upgrades to vessels to meet requirements of NFPA 58 | ||
Wingate Terminal | Seven vessels are overdue for inspection (V-400 through V-406) and one vessel (V-407) is out of service. | All costs to inspect vessels prior to their returning to product service | ||
Wingate Terminal | The concrete foundations for the horizontal iso butane tanks 209-214 & propane tanks 508-517 are showing signs of cracking. | All costs to evaluate foundation cracking on LNG tanks 209-214 and 508-517, to determine if repairs are required, and for any resulting required LNG tank foundation repairs | ||
Wingate Terminal | Gas detection is not provided at the spheres. Consider evaluating the need for additional gas detection. | All costs to perform a study to determine if facility is in compliance with NFPA codes and for any related projects to comply with fire codes or Andeavor standards | ||
Wingate Terminal | One sphere does not appear to have ground bonding jumpers. | All costs to correct ground bonding jumper deficiency on sphere | ||
Wingate Terminal | The rail rack is not equipped with ground indication or process interlocks with a grounding system. | All costs to install ground proving (Scully) systems on truck racks | ||
Wingate Terminal | Cathodic protection levels for the buried facility piping, pressure vessels bases, and water storage tanks could not be verified as CP monitoring is not being performed on an annual basis. | All costs related to conduct an initial cathodic protection survey and for addressing any cathodic protection deficiencies discovered |
12. |
Elk Grove Asphalt Terminal |
Site |
3 rd Party Contractor Identified Risk |
Andeavor Reimbursements |
||
Elk Grove Terminal | An unsupported vent pipe span at the polymer modified asphalt blending area is experiencing excessive movement and deflection. | All costs to conduct an engineering review of unsupported piping spans at the polymer modified asphalt blending area and to address any deficiencies identified |
Schedule VI- Page 48 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
Site |
3 rd Party Contractor Identified Risk |
Andeavor Reimbursements |
||
Elk Grove Terminal | Rail rack piping has no expansion loops for piping flexibility. Offload pumps are located at both ends of the rail rack which act as anchors and pump nozzles could be overstressed. | All costs to conduct an engineering review of unsupported piping spans at the rail rack and address any deficiencies identified | ||
Elk Grove Terminal | The condensate return tank (adjacent to the hot oil heaters) is vibrating excessively. | All costs to conduct an engineering review of the condensate return tank, to determine root cause of excessive vibration, and to address any deficiencies identified | ||
Elk Grove Terminal | The retractable landings do not provide fall protection on all sides. | All costs to Implement interim mitigations to reduce risk of falls to personnel and undertake projects to address tank fall protection concerns at the truck offloading stations. | ||
Elk Grove Terminal | No fall protection is present for personnel accessing the tops of rail cars. | All costs to Implement interim mitigations to reduce risk of falls to personnel and undertake projects to address tank fall protection concerns at the rail car. | ||
Elk Grove Terminal | Existing vapor collection piping is reportedly plugging regularly, and the system is not adequately functioning. | All costs to investigate root cause of plugging in the vapor collection piping and for any projects required to repair | ||
Elk Grove Terminal | The vapor collection system piping is not finished. | All costs to evaluate and complete prior project for Phase 2 installation of vapor collection systems, if required | ||
Elk Grove Terminal | Although the site is equipped with seven cameras, the image quality is poor, and they are frequently non-functional. | All costs to conduct a security assessment to ensure compliance with Andeavor security standards and to address any gaps through a security upgrade project and to update security cameras. | ||
Elk Grove Terminal | No arc-flash studies have been conducted and the electrical distribution equipment is not equipped with arc-flash warning labels. | All costs for installation of required Arc Flash labels and other recommendations per Andeavor standards, discovered through initial evaluation | ||
Elk Grove Terminal | Electrical drawings (One-Lines, Area Plans) and documentation are not available for the terminal. Limited project specific documents may be available. | All costs to determine if appropriate P&IDs, plot plans, isometric and electrical one-line drawings and maintenance records are in place, as well as to prepare any required documents. |
Schedule VI- Page 49 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
Site |
3 rd Party Contractor Identified Risk |
Andeavor Reimbursements |
||
Elk Grove Terminal | No automated fire or gas detection systems were observed; however, this is typical for this type of facility. Manual alarm pushbuttons are installed, but are not functional. | All costs related to performing an evaluation to determine if additional fire or gas detection is needed and for addressing any identified deficiencies in compliance with NFPA codes and Andeavor fire safety standards | ||
Elk Grove Terminal | A control panel is available for the PMA and tank wetting systems, but no other SCADA controls are available at the terminal for remote monitoring or automated shutdowns. | All costs to conduct a study to evaluate need for SCADA or similar controls and to implement findings as per Andeavor standards | ||
Elk Grove Terminal | A control panel is available for the SAAB tank gauging, but it was only operational for a short period. | All costs to conduct a study to evaluate need for SCADA or similar controls and to implement findings as per Andeavor standards | ||
Elk Grove Terminal | The emulsion tanks are not equipped with either radar or site gauges. | All costs to conduct a study to evaluate need for SCADA or similar controls for the emulsion tanks and to implement findings as per Andeavor standards | ||
Elk Grove Terminal | Asphalt tanks are equipped with Rosemount SAAB level radar gauges, but do not have Varec local site gauges for back-up. Reportedly, there is a project to install Varec gauges. The SAAB level radar gauges are not currently able to be remotely monitored. | All costs to conduct a study to evaluate need for SCADA or similar controls on the asphalt tanks and for installation of remote monitoring or SCADA control systems, Sabb Radar gauges, Varec local gauges and remote monitoring systems per Andeavor standards | ||
Elk Grove Terminal | Cathodic protection systems do not exist to protect select aboveground storage tank bottoms and buried facility piping in direct soil contact. | All costs to conduct a Cathodic Protection survey and to make recommended repairs to address deficiencies as per Andeavor standards | ||
Elk Grove Terminal | The Stairs/landings/walkways at the south end of the tank farm do not include a kick plate or center guardrail, and the guardrail members are not adequately sized to resist code applied live loads. The grating and support structure appears to be undersized since the grating surface is bouncy. In addition, piping running along the landings present a tripping hazard. |
All costs
|
||
Elk Grove Terminal | The Stairs/landings/walkways at the Emulsion tank farm do not include a kick plate or center guardrail, and the guardrail members are not adequately sized to resist code applied live loads. The grating and support structure appears to be undersized since the grating surface is bouncy. In addition, piping running along the landings present a tripping hazard. | All costs to for projects required to address deficiencies with stairs, landings and walkways in the emulsion tank farm. | ||
Elk Grove | The site has experienced numerous spills of asphalt. The spilled material was observed throughout the emulsion plant and the site. The non-recoverable asphalt storage area is full, and the site has begun a practice of placing non-recoverable asphalt materials onto the soil near the non-recoverable asphalt storage area. | All costs to perform initial clean up and disposal of non-recoverable asphalt as a result of historical spills across the site |
Schedule VI- Page 50 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
Site |
3 rd Party Contractor Identified Risk |
Andeavor Reimbursements |
||
Elk Grove |
The on-site pre-fabricated fire pump is not compliant with NFPA 20 and the 2016 California Fire Code. The following issues were identified:
The expose cables and battery constitute an electrical hazard;
The condition of the pump is not adequateleaking oil is potentially providing an additional fire hazard;
The pump is feed by liquefied petroleum gas (LPG) which provides additional fire hazard, conditions of the electrical cables could lead to ignition. Are drive by diesel or electricity, LPG is not an acceptable medium to run a fire pump; and
Exhaust is release inside the room allowing for the accumulation of accumulating carbon monoxide. |
All costs to conduct an inspection of the fire water pump, to determine if any potential areas of non- compliance with NFPA 20 and California Fire Code exist, and for any projects required to address deficiencies | ||
Elk Grove |
The following issues related to SPCC were identified. A 26-inch wall surrounds the emulsion plant on three sides. The fourth side is the emulsion plant building; piping penetrations through the wall do not appear sealed, which reduces the actual containment volume. Additionally, ERM noted the following issues with containment at the asphalt plant:
Squirrels and burrowing owls are nesting in the containment walls, affecting berm integrity (the burrowing owl is a protected species).
Rainwater is pumped into the containment areas during times of heavy rainfall, limiting containment capacity. |
All costs to evaluate SPCC issues identified and to address any deficiencies | ||
Elk Grove | The site has experienced numerous asphalt spills. Most notable, in 2017, 125 tons of product from tank 100-M2 was released due to a tank bottom failure. The majority of the spilled materials were removed Clean Harbors. The removal of spilled material was ceased to allow for the tank to be repaired. During warm weather, asphalt seeps are observed in the former spill area. In general, spilled asphalt materials were observed on the ground throughout the emulsion plant and the site. The non-recoverable asphalt jersey barriers is overfilled and the site has begun a practice of placing non-recoverable asphalt materials onto the soil near the barriers. | All costs to perform initial clean up asphalt seeping from the area around Tank 100-M2 | ||
Elk Grove |
The site has installed a RTO, with some of the piping replaced with stainless steel. The remainder of the piping needs to be replaced to allow the RTO to properly operate. Estimated cost
|
All costs to complete stainless steel piping replacement on RTO |
13. |
Mojave Asphalt Terminal |
Site |
3 rd Party Contractor Identified Risk |
Andeavor Reimbursements |
||
Mojave Terminal | The listed API 650 name plate on tanks TK-1, TK-2, TK-3, and TK-4 state the maximum operating temperature at 180 Deg. F. The current operating temperatures of all four tanks are 350 Deg F. Documentation does not exist to support the current operating temperature which is beyond the stamped tank design. | All costs to conduct engineering reviews and management of change (MOC) reviews for TK-1, TK-2, TK-3, and TK-4, to verify the maximum allowable temperature of the asphalt tanks, and to make any required updates to tank nameplates and provide documentation of change |
Schedule VI- Page 51 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
Site |
3 rd Party Contractor Identified Risk |
Andeavor Reimbursements |
||
Mojave Terminal | High level alarms for storage tanks do not exist. Tank gauging equipment and infrastructure are in place. | All costs to conduct a study to evaluate need for SCADA or similar controls and to implement findings as per Andeavor standards | ||
Mojave Terminal | Active below ground lines are present in facility (rail offload rack). No existing cathodic protection systems in place or inspection programs. | All costs to conduct a Cathodic Protection survey and to make recommended repairs to address deficiencies as per Andeavor standards | ||
Mojave Terminal | The retractable landings do not provide fall protection on all sides. | All costs to implement interim mitigations to reduce the risk to personnel and undertake projects to address fall protection concerns at the truck offloading stations. | ||
Mojave Terminal | No fall protection is present for personnel accessing the tops of rail cars. | All costs to implement interim mitigations to reduce the risk to personnel and undertake projects to address fall protection concerns from the tops of rail cars. | ||
Mojave Terminal | Existing thermal oxidizer system does not function correctly. May be undersized. Operations indicated it does not pull enough vacuum. Currently not being used. | All costs to conduct a review of the Thermal Oxidizer operational issues and for any upgrades required to improve operation if required to be in service. | ||
Mojave Terminal | The terminal is not equipped with cameras or automated gates. | All costs to conduct a security assessment to ensure compliance with Andeavor security standards and to address any gaps through a security upgrade project | ||
Mojave Terminal | No arc-flash studies have been conducted and the electrical distribution equipment is not equipped with arc-flash warning labels. | All costs for installation of required Arc Flash labels and other recommendations per Andeavor standards, discovered through initial evaluation | ||
Mojave Terminal | Electrical drawings (One-Lines, Area Plans) and documentation are not available for the terminal. Project specific documents may be available. | All costs to determine if appropriate P&IDs, plot plans, isometric and electrical one-line drawings and maintenance records are in place, as well as to prepare any required documents. | ||
Mojave Terminal | A SCADA control system does not exist for the terminal. | All costs to conduct a study to evaluate need for SCADA or similar controls and to implement findings as per Andeavor standards | ||
Mojave Terminal | Cathodic protection monitoring is not being performed to evaluate the levels of cathodic protection on the aboveground storage tank bottoms and buried facility piping in direct soil contact. | All costs to conduct a Cathodic Protection survey and to make recommended repairs to address deficiencies as per Andeavor standards |
Schedule VI- Page 52 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
Site |
3 rd Party Contractor Identified Risk |
Andeavor Reimbursements |
||
Mojave Terminal | An Andeavor Entity owned and DOT regulated out of service or abandoned underground pipeline segment is located on the terminal. Documents were not available for review to determine if the pipeline was properly abandoned or taken out of service. Reportedly the pipeline was pigged clean and purged with Nitrogen. | All costs to conduct a review of pipeline abandonment records and to conduct any corresponding additional inspections required to verify if pipeline was properly abandoned | ||
Mojave Terminal | The tank containment dikes are not outfitted with stair styles for access over the berms or over some piping at the rail rack. Lack of stairs presents a slip/fall hazard. | All costs to Implement interim mitigations to reduce risk of falls to personnel and undertake projects to address tank fall protection concerns including installation of stairways at tank farm berms and rail car stations. |
14. |
Phoenix Asphalt Terminal |
Site |
3 rd Party Contractor Identified Risk |
Andeavor Reimbursements |
||
Phoenix Terminal | Tank 4, 102 and 202 contain patch plates which do not appear to meet API 653 repair standards. No radius present at patch corners, and vertical welds are within 6 of each other. | All costs to inspect tanks for compliance with API 653 repair standards and to address any deficiencies with patch plates on tanks 4, 102 & 202 | ||
Phoenix Terminal | Some tanks share a common stair to access the tank roofs. Walkways, guardrails, or tie-off points for fall protection to access vent hoods, gage hatches, etc. are not present. | All costs to implement interim mitigations to reduce the risk to personnel and undertake projects to address fall protection concerns at stair access and tank roofs. | ||
Phoenix Terminal | The retractable landings do not provide fall protection on all sides. | All costs to implement interim mitigations to reduce the risk to personnel and undertake projects to address fall protection concerns at truck loading racks. | ||
Phoenix Terminal | No fall protection is present for personnel accessing the tops of rail cars. | All costs to implement interim mitigations to reduce the risk to personnel and undertake projects to address fall protection concerns on tops of rail cars. | ||
Phoenix Terminal | No arc-flash studies have been conducted and the electrical distribution equipment is not equipped with arc-flash warning labels. | All costs for installation of required Arc Flash labels and other recommendations per Andeavor standards, discovered through initial evaluation | ||
Phoenix Terminal | Electrical drawings (One-Lines, Area Classification) and documentation are not available for the terminal. The area classification around the diesel and jet tanks and process piping should be reviewed and the suitability of the installed electrical equipment verified. | All costs to conduct a study to verify the suitability of installed electrical equipment around the diesel and jet tanks relative to area electrical classification standards and to create electrical one-line drawings and Area Classification drawings, if required |
Schedule VI- Page 53 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
Site |
3 rd Party Contractor Identified Risk |
Andeavor Reimbursements |
||
Phoenix Terminal | A SCADA control system does not exist for the terminal. | All costs to conduct a study to evaluate need for SCADA or similar controls and to implement findings as per Andeavor standards | ||
Phoenix Terminal | Tanks are not equipped with any remote monitoring, alarms, or interlocks to prevent tank overfill. | All costs to conduct a study to evaluate need for SCADA or similar controls and to implement findings as per Andeavor standards | ||
Phoenix Terminal | Additional software is required to monitor the wireless Rosemount tank level transmitters from the main office. | All costs to conduct a study to evaluate need for SCADA or similar controls and to implement findings as per Andeavor standards | ||
Phoenix Terminal | Cathodic protection systems do not exist to protect select aboveground storage tank bottoms and buried facility piping in direct soil contact. | All costs to conduct a Cathodic Protection survey and to make recommended repairs to address deficiencies as per Andeavor standards | ||
Phoenix Terminal | Stair rise/run at the stair style over the tank containment dike wall north of Tank 50001 varies, presenting a trip/fall hazard to personnel. | All costs to conduct a safety assessment of the stairs and to address any safety concerns identified at the stairway north of tk-550001 | ||
Phoenix | Underground vaults and drains are located at the site. Reportedly, the vaults discharge to the stormwater pond. However, piping was not observed at this discharge location. A piping drawing for underground lines does not exist according to site personnel. Facility personnel are unaware where the stormwater is discharging. | All costs to conduct a study to determine whether underground vaults are connected to the stormwater retention basin, to understand stormwater permitting requirements, and to address any deficiencies identified | ||
Phoenix | According to the information provided, the on-site sewer may require cleaning due to blockage from calcium carbonate buildup and potentially need to be repaired or replaced. Previous estimates to replace the sewer line were approximately $250,000. | All costs to evaluate condition of underground sewer and to repair or replace, if required at the boiler area. | ||
Phoenix | The site has installed a covered storage area for hazardous materials. The storage area is still in the process of being fully permitted and a sprinkler system is required by the local fire marshal. The site is actively using the storage area for hazardous materials storage. | All costs to install sprinkler system in the new storage building if required by building permit, local fire standards, or Andeavor hazardous materials storage management practices |
15. |
Bakersfield Asphalt Terminal |
Site |
3 rd Party Contractor Identified Risk |
Andeavor Reimbursements |
||
Bakersfield Terminal | Some tanks share a common stair to access the roofs with no walkways, guardrails, or tie-off points for fall protection to access vent hoods, gage hatches, etc. In particular, operators must access tanks 17-20 gauge hatches on a daily basis. Access to the gauge hatches requires operators to leave the rooftop walkway system and work near tank edges with no guardrails or fall protection present. | All costs to implement interim mitigations to reduce the risk to personnel and undertake projects to address fall protection concerns from stair access and tops of tanks. |
Schedule VI- Page 54 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
Site |
3 rd Party Contractor Identified Risk |
Andeavor Reimbursements |
||
Bakersfield Terminal | High level alarms for storage tanks do not exist. Tank gauging equipment and infrastructure are in place. | All costs to conduct a study to evaluate need for SCADA or similar controls and to implement findings as per Andeavor standards | ||
Bakersfield Terminal | Heat exchanger for asphalt product is not functioning properly and needs to be evaluated. | All costs to conduct an engineering study to determine if heat exchanger is operating per design and to address recommended upgrades if any are required | ||
Bakersfield Terminal | Steam piping at rail rack shows signs of movement from thermal expansion. Additional shoes have been added to avoid pipe from dropping off support. Expansion loops should be considered in steam piping. | All costs to review piping at the rail rack to ensure there are adequate supports to prevent the piping from falling off the rack and to address deficiencies identified | ||
Bakersfield Terminal | Active below ground lines are present in facility (rail offload rack). No existing cathodic protection systems in place or inspection programs. | All costs to conduct a Cathodic Protection survey and to make recommended repairs to address deficiencies as per Andeavor standards | ||
Bakersfield Terminal | The retractable landing at emulsion rack 1 is heavily damaged with broken/bent rails. The landing is currently being used for accessing tops of trucks. | All costs to implement interim mitigations to reduce the risk to personnel and undertake projects to address fall protection concerns at emulsion tank 1. | ||
Bakersfield Terminal | The retractable landings at lanes 1, 4 & 5 include a scaffold system for personnel fall protection tie-off. The scaffold system does not appear to be adequately sized to support minimum OSHA load requirements, and is not inspected on a frequent basis by certified scaffold inspectors. | All costs to implement interim mitigations to reduce the risk to personnel and undertake projects to address fall protection concerns at truck rack lanes | ||
Bakersfield Terminal | No fall protection is present for personnel accessing the tops of rail cars. | All costs to implement interim mitigations to reduce the risk to personnel and undertake projects to address fall protection concerns from tops of rail cars. | ||
Bakersfield Terminal | The vapor recovery and control system is inadequate to recover emissions from the asphalt tanks to prevent nuisance odor complaints from the community. Some tanks are not piped to the vapor recovery system. | All costs to conduct an engineering review of the vapor recovery piping and thermal oxidizer to ensure adequacy to capture all emissions from the tanks and to make any repairs needed | ||
Bakersfield Terminal | No arc-flash studies have been conducted and the electrical distribution equipment is not equipped with arc-flash warning labels. | All costs for installation of required Arc Flash labels and other recommendations per Andeavor standards, discovered through initial evaluation |
Schedule VI- Page 55 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
Site |
3 rd Party Contractor Identified Risk |
Andeavor Reimbursements |
||
Bakersfield Terminal | Electrical drawings (One-Lines, Area Plans) and documentation are not available for the terminal. Limited project specific documents may be available. | All costs to determine if appropriate P&IDs, plot plans, isometric and electrical one-line drawings and maintenance records are in place, as well as to prepare any required documents. | ||
Bakersfield Terminal | No automated fire or gas detection systems were observed, however this is typical for this type of facility. | All costs related to performing an evaluation to determine if additional fire or gas detection is needed and for addressing any identified deficiencies in compliance with NFPA codes and Andeavor fire safety standards | ||
Bakersfield Terminal | A SCADA control system does not exist for the terminal. | All costs to conduct a study to evaluate need for SCADA or similar controls and to implement findings as per Andeavor standards | ||
Bakersfield Terminal | Tanks are not equipped with any remote monitoring, alarms, or interlocks to prevent tank overfill. | All costs to conduct a study to evaluate need for SCADA or similar controls and to implement findings as per Andeavor standards | ||
Bakersfield Terminal | Only one emulsion tank is equipped with a visual gauge. The asphalt tanks are only equipped with SAAB radar and no site gauges are available for comparison. | All costs to conduct a study to evaluate need for SCADA or similar controls and to implement findings as per Andeavor standards | ||
Bakersfield Terminal | Cathodic protection systems do not exist to protect select aboveground storage tank bottoms and buried facility piping in direct soil contact. | All costs to conduct a Cathodic Protection survey and to make recommended repairs to address deficiencies as per Andeavor standards | ||
Bakersfield Terminal | The guardrail of the stairs accessing the south side of truck loading lanes 4 & 5 is broken, presenting a fall hazard. In addition, no midrail is present at the stair and kick plate are missing. | All costs to implement interim mitigations to reduce the risk to personnel and undertake projects to address fall protection concerns on lanes 4 & 5 guardrails, midrails and stairways. | ||
Bakersfield Terminal | The corrugated metal pipe vaults at the below ground piping transitions inside the tank farm and at the rail rack are not covered and present a fall hazard to personnel. | All costs to implement interim mitigations to reduce the risk to personnel and undertake projects to address fall hazards associated with corrugated metal pipe vaults at the below ground piping transitions inside the tank farm and at the rail rack | ||
Bakersfield Terminal | Access ladders at tank T-10 exceed OSHA height limits without intermediate landings and do not include safety cages or fall protection devices. | All costs to implement interim mitigations to reduce the risk to personnel and undertake projects to address OSHA height limits of Access ladders at tank T-10 including safety cages and fall protection devices. |
Schedule VI- Page 56 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
Site |
3 rd Party Contractor Identified Risk |
Andeavor Reimbursements |
||
Bakersfield | An asbestos and lead survey was completed for the old lab and operations buildings. The survey indicated presence of asbestos as well as external green and white paints containing high lead contents. The external paint was observed in very poor and peeling conditions. | All costs to demolish existing buildings and replace with new, if required per Andeavor standards as result of reviewing findings from asbestos and lead survey | ||
Bakersfield | A large quantity of super sacks is stored outside exposed to the sun. This material has been known to spontaneously ignite under high temp conditions. These materials need to be stored properly in sheds or covered storage areas. | All costs to identify safe storage requirements for all chemicals at the site and to address any safe storage deficiencies | ||
Bakersfield | Site relies on a groundwater well for potable and process water. Reportedly, there is a well approximately 700 ft. deep (water level at about 500 ft.), with a submersible pump, installed around September 2013. There is a second well not in use and locked shut with the casing damaged (slots corroded, and sand has infiltrated the well). The site was unaware of any well abandonment, potable water testing or drinking water requirements. | All costs to test water on active well to verify it is potable, to connect facility to City water service if required, and to abandon water well per California Department of Water Resource regulations Health & Safety Code Section 115700, if required | ||
Bakersfield |
The following issues related to Air Permit compliance were observed:
The permit requires continuous use of a vapor control system (either carbon drums or thermal oxidizer) whenever tank contains or is being loaded with asphalt products. However, based on site observations the thermal oxidizer system is not in use and facility personnel reported the system was non-operational.
Facility has tendency to manually modify the design of the boilers in the event that it fails. This practice is not encouraged because it could lead to non-compliance with permit conditions.
Rental loader was found on site. They need to be registered in the CARB system (DOORS) if used for longer than 1 year. |
All costs to evaluate noted air permit compliance issues and to make necessary upgrades to the facility vapor recovery equipment based on permitting requirements |
16. |
All Asphalt Terminals |
Site |
3 rd Party Contractor Identified Risk |
Andeavor Reimbursements |
||
All Sites | Inadequate fall protection at the truck loading racks as well as other areas within the sites. It should be noted that the Fernley truck rack is equipped with cages. | All costs to implement interim mitigations to reduce the risk to personnel and undertake projects to address fall protection concerns per Andeavor standards | ||
All Sites |
The sites lack a comprehensive fire safety program. Fire safety issues identified included: No fire detection systems are in place and facility personnel rely on fire extinguishers for fire protection.
No active or adequate fire suppression systems are in place.
No response agreements are in place with local fire departments, nor do the facilities actively engage, or exercise, with emergency responders.
With the exception of Phoenix, fire hydrants fed by municipal water are not inspected on a regular basis. The facility representative indicated that inspections are conducted, but that documentation is not maintained regarding the inspections. |
All costs related to performing an evaluation to determine if additional fire or gas detection is needed and for addressing any identified deficiencies in compliance with NFPA codes and Andeavor fire safety standards |
Schedule VI- Page 57 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
Site |
3 rd Party Contractor Identified Risk |
Andeavor Reimbursements |
||
Hazardous area classification assessments have not been conducted at the sites and numerous ignition sources are present.
Manual call points installed on-sites are disabled and not functioning. Therefore the call points will not activate any general alarm in the event of an emergency. No provisions have been implemented to fix the system. |
||||
All Sites |
With limited exceptions, operations are performed manually, with no automation (e.g. MOVs, high level alarms, automated shut down devices, etc.). Overfill prevention is based on correct calculation of loading time based on the level before loading. The operator is required to perform level monitoring with manual gauges on top while loading is performed. Numerous tanks showed evidence of previous overfill events. |
All costs to conduct a study to evaluate need for SCADA or similar controls and to implement findings as per Andeavor standards | ||
All Sites | No arc flash studies have been performed at the sites. | All costs for installation of required Arc Flash labels and other recommendations per Andeavor standards, discovered through initial evaluation | ||
All Sites | According to information provided, over 90 tanks are past tank inspection due dates. With few exceptions, all tanks are single bottomed without means of detecting a tank bottom failure. | All costs to address overdue tank inspections as per API 653 and to address any deficiencies identified | ||
All Sites |
With the exception of Mojave, the following issues have been identified with respect to secondary containment with the exception of Mojave:
capacity of secondary containment areas appears inadequate at many locations
tanks were observed without secondary containment
secondary berms are eroding and do not have preventative maintenance programs
spill pans are not used during rail car unloading |
All costs to conduct a review of SPCC plans and to address any deficiencies identified which are required to comply with SPCC requirements | ||
All Sites | Boiler blow down at the sites is discharged to the ground or an impoundment. The sites are unaware of permitting requirements for this activity. Additionally, boiler blow down discharge on bare ground could lead to subsurface contamination. | All costs to review boiler blowdown permitting requirements, to obtain permits required to discharge boiler blowdown water to the stormwater pond if required, or to make other modifications needed for safe, compliant blowdown practices |
17. Fernley Asphalt Terminal Upon mutual consent on project scope between the applicable Andeavor Entities and the applicable members of Partnership Group, the applicable Andeavor Entities shall reimburse the Partnership Group for 50% [amount equal to Andeavor ownership at time of drop down closing] of the expense and capital costs incurred for the execution of the following Andeavor Reimbursements identified in the table below. For all reimbursements in which a study, evaluation, inspection or review must first be performed, such activity must be conducted within 24 months of the Effective Date in order to be subject to Andeavor reimbursement.
Schedule VI- Page 58 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
Site |
3 rd Party Contractor Identified Risk |
Andeavor Reimbursements |
||
Fernley Terminal | Some tanks share a common stair to access the tank roofs. Walkways, guardrails, or tie-off points for fall protection to access vent hoods, gage hatches, etc. are not present. | All costs to implement interim mitigations to reduce risk of falls and for any projects to address tank fall protection concerns from tank roofs and stair access points | ||
Fernley Terminal | No fall protection is present for personnel accessing the tops of rail cars. | All costs to implement interim mitigations to reduce risk of falls and for any projects to address tank fall protection concerns from rail cars. | ||
Fernley Terminal | Security cameras are not provided. | All costs to conduct a study/evaluation to determine security camera needs and for any projects to address identified deficiencies in Andeavor Security Standards | ||
Fernley Terminal | The terminal entrance gate is not equipped with badge readers. | All costs to conduct security assessment and to address deficiencies relative to access gate badge readers as they relate to Andeavor security standards. | ||
Fernley Terminal | No arc-flash studies have been conducted and the electrical distribution equipment is not equipped with arc-flash warning labels. | All costs for installation of required Arc Flash labels and other recommendations per Andeavor standards, discovered through initial evaluation | ||
Fernley Terminal | Electrical drawings (One-Lines, Area Plans) and documentation are not available for the terminal. | All costs to determine if appropriate P&IDs, plot plans, isometric and electrical one-line drawings and maintenance records are in place, as well as to prepare any required documents. | ||
Fernley Terminal | An underground electrical vault recently caught on fire and needed replacement. The root cause should be investigated and mitigated for all underground cabling. | All costs to conduct an investigation to determine cause of electrical vault fire and to implement projects to address findings to prevent future incidents | ||
Fernley Terminal | No automated fire or gas detection systems were observed; however this is typical for this type of facility. | All costs related to performing an evaluation to determine if additional fire or gas detection is needed and for addressing any identified deficiencies in compliance with NFPA codes and Andeavor fire safety standards | ||
Fernley Terminal | A SCADA system is available for the storage tanks, but it is only visible from the local HMI located on the PLC at the terminal and not in the main office. | All costs to conduct a study to evaluate need for SCADA or similar controls on storage tanks and to implement findings as per Andeavor standards |
Schedule VI- Page 59 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
Site |
3 rd Party Contractor Identified Risk |
Andeavor Reimbursements |
||
Fernley Terminal | Tanks are not equipped with any remote monitoring, alarms, or interlocks to prevent tank overfill. Tank levels are displayed locally on a PLC HMI, but only text appears when a tank level is high. No shutdowns or audible alarms are in place. | All costs to conduct a study to evaluate need for SCADA or similar controls and for installation of remote monitoring or SCADA control systems, as needed. | ||
Fernley Terminal | Cathodic protection systems do not exist to protect select aboveground storage tank bottoms and buried facility piping in direct soil contact. | All costs to conduct a Cathodic Protection survey and to make recommended repairs to address deficiencies as per Andeavor standards | ||
Fernley Terminal | The stair styles and landings at the rail loading rack do not have guardrail on all sides. Landings are greater than 30 above adjacent grade and require rails for personnel fall protection. | All costs to implement interim mitigations to reduce the risk to personnel and undertake projects to address fall protection concerns at the rail loading rack. | ||
Fernley | The facility does not have a general alarm system to warn personnel on an incident. The emergency response plan indicates that the facility has a general alarm, but this is not accurate based on a review of the site. | All costs for review of Emergency Response Plan and for any modifications needed to comply with Andeavor standards and requirements of Emergency Response Plan including installation of emergency alarm systems |
Schedule VI- Page 60 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
Schedule VII
Contribution Agreements, Other Transactions and Applicable Terms
Initial Contribution Agreement
Contribution Agreement |
Closing Date |
First
|
Second
|
Andeavor
|
Andeavor
|
Third
|
Omnibus
5.1(b)
|
|||||||
Contribution, Conveyance and Assumption Agreement, dated as April 26, 2011, among the Partnership, the General Partner, the Operating Company, Andeavor, Tesoro Alaska, TRMC and Tesoro High Plains Pipeline Company LLC | April 26, 2011 | April 26, 2013 | April 26, 2016 | TRMC and Tesoro Alaska | TRMC | April 26, 2021 | Yes |
Schedule VII- Page 1 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
Amorco Contribution Agreement
Contribution Agreement |
Closing Date |
First
|
Second
|
Andeavor
|
Andeavor
|
Third
|
Omnibus
5.1(b)
|
|||||||
Contribution, Conveyance and Assumption Agreement dated as of April 1, 2012, among the Partnership, the General Partner, the Operating Company, Tesoro and TRMC | April 1, 2012 | April 1, 2014 | April 1, 2017 | TRMC | TRMC | April 1, 2022 | Yes |
Schedule VII- Page 2 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
Long Beach Contribution Agreement
Contribution Agreement |
Closing Date |
First Deadline Date |
Second Deadline Date |
Andeavor
|
Andeavor
|
Third Deadline Date |
Omnibus
5.1(b)
|
|||||||
Contribution, Conveyance and Assumption Agreement executed as of September 14, 2012, among the Partnership, the General Partner, the Operating Company, Andeavor and TRMC | Execution Date is September 14, 2012, and various Effective Times are upon receipt of the Long Beach Approval, the CDFG Approval and the Other Approvals as set forth in the agreement, as applicable | September 14, 2014 | September 14, 2017 | TRMC | TRMC | September 14, 2022 | Yes |
Schedule VII- Page 3 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
Anacortes Rail Facility Contribution Agreement
Contribution Agreement |
Closing Date |
First Deadline Date |
Second Deadline Date |
Andeavor
|
Andeavor
|
Third Deadline Date |
Omnibus
5.1(b)
|
|||||||
Contribution, Conveyance and Assumption Agreement executed as of November 15, 2012, among the Partnership, the General Partner, the Operating Company, Andeavor and TRMC | November 15, 2012 | November 15, 2014 | November 15, 2017 | TRMC | TRMC | November 15, 2022 | No |
Schedule VII- Page 4 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
BP Carson Tranche 1 Contribution Agreement
Contribution Agreement |
Closing Date |
First
|
Second
|
Andeavor
|
Andeavor
|
Third
|
Omnibus
5.1(b)
|
|||||||
Contribution, Conveyance and Assumption Agreement executed as of May 17, 2013, among the Partnership, the General Partner, the Operating Company, Andeavor and TRMC | June 1, 2013 | Not Applicable | Not Applicable | Not Applicable | Not Applicable | Not Applicable | No |
Schedule VII- Page 5 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
BP Carson Tranche 2 Contribution Agreement
Contribution Agreement |
Closing Date |
First
|
Second
|
Andeavor
|
Andeavor
|
Third
|
Omnibus
5.1(b)
|
|||||||
Contribution, Conveyance and Assumption Agreement executed as of November 18, 2013, among the Partnership, the General Partner, the Operating Company, Andeavor, TRMC and Carson Cogeneration Company | December 6, 2013 | Not Applicable | Not Applicable | Not Applicable | Not Applicable | Not Applicable | No |
Schedule VII- Page 6 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
West Coast Assets Contribution Agreement
Contribution Agreement |
Closing Date |
First Deadline
|
Second Deadline
|
Andeavor
|
Andeavor
|
Third Deadline
|
Omnibus
5.1(b)
|
|||||||
Contribution, Conveyance and Assumption Agreement executed as of June 23, 2014, among the Partnership, the General Partner, the Operating Company, Tesoro Logistics Pipelines LLC, Andeavor, TRMC and Tesoro Alaska |
First Closing Date: July 1, 2014 Second Closing Date has the meaning set forth in the Contribution Agreement |
The second (2 nd ) anniversary of the First Closing Date or the Second Closing Date, as applicable |
With respect to Section 3.1(a): Not applicable With respect to Section 3.2: The fifth (5 th ) anniversary of the First Closing Date or the Second Closing Date, as applicable |
Andeavor, TRMC, Tesoro Alaska | Andeavor, TRMC, Tesoro Alaska | The tenth (10 th ) anniversary of the First Closing Date or the Second Closing Date, as applicable. | Yes |
Schedule VII- Page 7 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
2015 Line 88 and Carson Tankage Contribution Agreement
Contribution Agreement |
Closing Date |
First Deadline Date |
Second
|
Andeavor
|
Andeavor
|
Third
|
Omnibus
|
|||||||
Contribution, Conveyance and Assumption Agreement effective as of November 12, 2015, among the Partnership, the General Partner, the Operating Company, Tesoro SoCal Pipeline Company LLC, Andeavor, TRMC and Carson Cogeneration Company | November 12, 2015 | November 12, 2017 | November 12, 2020 | Andeavor, TRMC, Carson Cogen | Andeavor, TRMC, Carson Cogen | November 12, 2025 | Yes |
Schedule VII- Page 8 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
2016 Alaska Assets Contribution Agreement
Contribution Agreement |
Closing Date |
First Deadline Date |
Second
|
Andeavor
|
Andeavor
|
Third Deadline
|
Omnibus
|
|||||||
Contribution, Conveyance and Assumption Agreement effective as of July 1, 2016, among the Partnership, the General Partner, the Operating Company, Tesoro Alaska Company LLC, and Andeavor
KENAI TANKAGE |
July 1, 2016 | July 1, 2018 | July 1, 2021 | Tesoro Alaska Company LLC | Not applicable | July 1, 2026 | Yes | |||||||
Contribution, Conveyance and Assumption Agreement effective as of July 1, 2016, among the Partnership, the General Partner, the Operating Company, Tesoro Alaska Company LLC, and Andeavor
ANCHORAGE AND FAIRBANKS TERMINALS |
September 16, 2016 | September 16, 2018 | September 16, 2023 | Tesoro Alaska Company LLC | Not applicable | September 16, 2026 | Yes |
Schedule VII- Page 9 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
Martinez Assets Contribution Agreement
Contribution Agreement |
Closing Date |
First
Date |
Second
|
Andeavor
|
Andeavor
|
Third Deadline
|
Omnibus
|
|||||||
Contribution, Conveyance and Assumption Agreement effective as of November 21, 2016, among the Partnership, the General Partner, the Operating Company, TRMC and Andeavor | November 21, 2016 | November 21, 2018 | November 21, 2021 | TRMC | Not applicable | November 21, 2026 | Yes |
Schedule VII- Page 10 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
For Assets owned by Western Refining, Inc. and Western Refining Logistics LP and their subsidiaries prior to the Closing Date of the Merger Agreement and acquired by the Partnership pursuant to the Merger Agreement by virtue of its acquisition of WNRL thereunder:
Pre-Merger Agreement WNRL Assets |
Closing Date |
First
|
Second
|
Andeavor
|
Andeavor
|
Third
|
Omnibus
|
|||||||
For Assets owned by WNRL on the Closing Date of the Merger Agreement and acquired by the Partnership pursuant to the Merger Agreement by virtue of its acquisition of WNRL thereunder | October 30, 2017 | Not Applicable | Not Applicable | Not Applicable | Not Applicable | Not Applicable | No |
Schedule VII- Page 11 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
2017 Anacortes Assets Contribution Agreement
Contribution Agreement |
Closing Date |
First
|
Second
|
Andeavor
|
Andeavor
|
Third Deadline
|
Omnibus
|
|||||||
Contribution, Conveyance and Assumption Agreement effective as of November 8, 2017, among the Partnership, the Operating Company, TRMC and Andeavor | November 8, 2017 | November 8, 2019 | November 8, 2022 | TRMC | Not applicable | November 8, 2027 | Yes |
Schedule VII- Page 12 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
2018 Assets Contribution Agreement
Refinery storage, rail, truck, Legacy Western Permian/4-Corners, Clearbrook tankage, Great Plains/BakkenLink
Contribution Agreement |
Closing
|
First
|
Second
|
Andeavor
|
Andeavor
|
Third
|
Omnibus
|
|||||||
Contribution, Conveyance and Assumption Agreement effective as of August 6, 2018 (the 2018 Assets Contribution Agreement), among the Partnership, the Operating Company, TRMC, Western Refining Southwest, Inc. (WRSW), Andeavor and the other parties thereto, insofar as it covers the Group B Assets [Bobcat Pipeline, Benny Pipeline, Mesquite Truck Station, Yucca Truck Station, Mason East Station, Wink Station], Group C [Wingate Terminal], Group D Assets [Clearbrook Tankage], Group E [assets associated with Mandan Refinery, Salt Lake Refinery, LARC Refinery Unit and LARW Refinery Unit], and TGPM Units (as such terms are defined in the 2018 Assets Contribution Agreement) | August 6, 2018 | August 6, 2020 | August 6, 2023 |
TRMC WRSW Western Refining Company, L.P. (WRCLP) |
Not applicable | August 6, 2028 | Yes |
Schedule VII- Page 13 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
Aranco Pipeline, Jal NGL Storage Facility
Contribution Agreement |
Closing
|
First
|
Second
|
Andeavor
|
Andeavor
|
Third
|
Omnibus
|
|||||||
Contribution, Conveyance and Assumption Agreement effective as of August 6, 2018, among the Partnership, the Operating Company, TRMC, WRSW, Andeavor and the other parties thereto, insofar as it covers the Group A Assets [Jal NGL Storage Facility] and the Group G Assets [Aranco Pipeline] | August 6, 2018 | Not applicable | Not applicable | Not applicable | Not applicable | August 6, 2028 | No |
LA Refinery Interconnecting Pipeline, Conan, Rio Pipeline, Asphalt Terminals, MPL
Contribution Agreement |
Closing
|
First
|
Second
|
Andeavor
|
Andeavor
|
Third
|
Omnibus
|
|||||||
Contribution, Conveyance and Assumption Agreement effective as of August 6, 2018, among the Partnership, the Operating Company, TRMC, WRSW, Andeavor and the other parties thereto, insofar as it covers the Group F Assets [LA Refinery Interconnecting Pipeline], the MPL Units, WRCG Units, WRDBS Units, ATL Units, and Andeavor Rio Units (as such terms are defined in the 2018 Assets Contribution Agreement) | August 6, 2018 | Not applicable | Not applicable | Not applicable | Not applicable | August 6, 2028 | No* |
* |
Special indemnities per Schedule IX |
Schedule VII- Page 14 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
Schedule VIII
Administrative Fee and Indemnification Deductibles
Monthly Administrative Fee
$1,383,333
Annual Environmental Deductible
$1,000,000
Annual ROW Deductible
$1,000,000
Schedule VIII- Page 1 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
Schedule IX
Special Indemnification Provisions
For Initial Contribution Agreement listed on Schedule VII :
None.
For Amorco Contribution Agreement listed on Schedule VII :
Addition to Right of Way Indemnification . As of the Closing Date for the Amorco Contribution Agreement, TRMC shall own the leasehold rights in the Wharf Lease issued by the California State Lands Commission and the easements, rights of way and permits for the SHPL, all as defined in the Amorco Contribution Agreement, and the Partnership Group shall provide operational, maintenance and management services with respect to such Assets pursuant to the MTUTA. Title to Wharf Lease rights and the SHPL are scheduled to be contributed to the Partnership Group at a later date, as set forth in the Amorco Contribution Agreement. The Right of Way Indemnification set forth in Section 3.2 herein applies to the extent that a Loss arises with respect to a Partnership Group Members interests under the MTUTA before title to such Assets is contributed to the Partnership Group Member or with respect to a Partnership Group Members failure to become the owner of such valid and indefeasible easement rights or fee ownership or leasehold interests in such Assets after they are finally contributed to the Partnership Group as contemplated in the Amorco Contribution Agreement. The Closing Date provided for in this Agreement shall be as set forth above, without regard to when title to these Assets is finally contributed to a Partnership Group Member.
For Long Beach Contribution Agreement listed on Schedule VII :
Addition to Right of Way Indemnification . As of the Closing Date for the Long Beach Contribution Agreement, TRMC shall own the leasehold rights in the Terminal Lease issued by the Port of Long Beach and the easements, rights of way and permits for the Terminal Pipelines, all as defined in the Long Beach Contribution Agreement, and the Partnership Group shall provide operational, maintenance and management services with respect to such Assets pursuant to the Long Beach Operating Agreement, as defined in the Long Beach Contribution Agreement. Title to Terminal Lease rights and the Terminal Pipelines are scheduled to be contributed to the Partnership Group at a later date, as set forth in the Long Beach Contribution Agreement. The Right of Way Indemnification set forth in Section 3.2 herein applies to the extent that a Loss arises with respect to a Partnership Group Members interests under the BAUTA before title to such Assets is contributed to the Partnership Group Member or with respect to a Partnership Group Members failure to become the owner of such valid and indefeasible easement rights or fee ownership or leasehold interests in such Assets after they are finally contributed to the Partnership Group as contemplated in the Long Beach Contribution Agreement. The Closing Date provided for in this Agreement shall be as set forth above, without regard to when title to these Assets is finally contributed to a Partnership Group Member.
Schedule IX- Page 1 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
For Anacortes Rail Facility Contribution Agreement listed on Schedule VII :
Notwithstanding any other provisions of (i) the Fourth Amended and Restated Omnibus Agreement, (ii) the Anacortes Track Use and Throughput Agreement among the General Partner, the Partnership, the Operating Company and TRMC, (iii) the Anacortes Mutual Track Use Agreement among the General Partner, the Partnership, the Operating Company and TRMC, and (iv) the Ground Lease between TRMC and the Operating Company, all dated as of November 15, 2012, the parties hereto agree that the indemnification provisions of any of those agreements shall control over any of the other agreements to the extent the subject matter of the indemnification is specifically referenced or provided for in that agreement. For the avoidance of doubt, the indemnification provisions of the Fourth Amended and Restated Omnibus Agreement shall be subordinate to the respective indemnification provisions of each of the other agreements referenced above.
For BP Carson Tranche 1 Contribution Agreement listed on Schedule VII :
Notwithstanding any other provisions of (i) the Fourth Amended and Restated Omnibus Agreement, (ii) the BP Carson Tranche 1 Contribution Agreement listed on Schedule VII , (iii) the Master Terminalling Services Agreement Southern California among TRMC, the General Partner, the Partnership and the Operating Company dated as of June 1, 2013, as amended, and (iv) the Carson Storage Services Agreement among TRMC, the General Partner, the Partnership and the Operating Company dated as of June 1, 2013, the parties hereto agree that the indemnification provisions of any of those agreements shall control over any of the other agreements to the extent the subject matter of the indemnification is specifically referenced or provided for in that agreement. In the event of a conflict of provisions of any of the above-referenced agreements and the Carson Assets Indemnity Agreement, the provisions of the Carson Assets Indemnity Agreement shall prevail with respect to issues related to the contribution of the assets described therein, but not with respect to the ordinary operations of such assets as set forth in the above-referenced agreements. Notwithstanding anything to the contrary in the Fourth Amended and Restated Omnibus Agreement, the indemnification provisions of Sections 3.2 and 3.5 thereof shall not apply to the Assets as defined in the BP Carson Tranche 1 Contribution Agreement listed on Schedule VII .
Schedule IX- Page 2 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
For BP Carson Tranche 2 Contribution Agreement listed on Schedule VII :
Notwithstanding any other provisions of (i) the Fourth Amended and Restated Omnibus Agreement, (ii) the BP Carson Tranche 2 Contribution Agreement listed on Schedule VII , (iii) the Amended and Restated Master Terminalling Services Agreement Southern California among TRMC, the General Partner, the Partnership and the Operating Company dated as of December 6, 2013, (iv) the Long Beach Storage Services Agreement among TRMC, the General Partner, the Partnership and the Operating Company dated as of December 6, 2013, (v) the Berth 121 Operating Agreement between the Operating Company and Carson Cogeneration Company, dated as of December 6, 2013, (vi) the Terminals 2 and 3 Operating Agreement among the Partnership, the General Partner, the Operating Company and TRMC, dated as of December 6, 2013, (vii) the Amended and Restated Long Beach Berth Access Use and Throughput Agreement among the Partnership, the General Partner, the Operating Company and TRMC, dated as of December 6, 2013, (viii) the Long Beach Berth Throughput Agreement among the Partnership, the General Partner, the Operating Company, TRMC and Carson Cogeneration Company, dated as of December 6, 2013, (ix) the SoCal Transportation Services Agreement between TRMC and Tesoro SoCal Pipeline Company LLC, dated as of December 6, 2013, (x) the Long Beach Pipeline Throughput Agreement among the Partnership, the General Partner, the Operating Company and TRMC, dated as of December 6, 2013, (xi) the Carson Coke Handling Services Agreement among the Partnership, the General Partner, the Operating Company and TRMC, dated as of December 6, 2013, (xii) the Coke Barn Lease Agreement between the Operating Company and TRMC, dated as of December 6, 2013 and (xiii) the Terminals 2 and 3 Ground Lease between the Operating Company and TRMC, dated as of December 6, 2013, the parties hereto agree that the indemnification provisions of any of those agreements shall control over any of the other agreements to the extent the subject matter of the indemnification is specifically referenced or provided for in that agreement. In the event of a conflict of provisions of any of the above-referenced agreements and the Carson Assets Indemnity Agreement, the provisions of the Carson Assets Indemnity Agreement shall prevail with respect to issues related to the contribution of the assets described therein, but not with respect to the ordinary operations of such assets as set forth in the above-referenced agreements.
Schedule IX- Page 3 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
For West Coast Assets Contribution Agreement listed on Schedule VII:
Notwithstanding any other provisions of (i) the Fourth Amended and Restated Omnibus Agreement, (ii) the Terminalling Services Agreement Nikiski, among the General Partner, the Partnership, the Operating Company and Tesoro Alaska, (iii) the Terminalling Services Agreement Anacortes, among the General Partner, the Partnership, the Operating Company and TRMC, (iv) the Terminalling Services Agreement Martinez, among the General Partner, the Partnership, the Operating Company and TRMC, and (v) the Storage Services Agreement Anacortes, the Terminalling Services Agreement Anacortes, among the General Partner, the Partnership, the Operating Company and TRMC, the parties hereto agree that the indemnification provisions of any of those agreements shall control over any of the other agreements to the extent the subject matter of the indemnification is specifically referenced or provided for in that agreement. In the event of a conflict of provisions of any of the above-referenced agreements and the Fourth Amended and Restated Omnibus Agreement, the provisions of the Fourth Amended and Restated Omnibus Agreement shall prevail with respect to issues related to the contribution of the assets described therein, but not with respect to the ordinary operations of such assets as set forth in the above-referenced agreements.
For 2015 Line 88 and Carson Tankage Contribution Agreement listed on Schedule VII:
Other . Notwithstanding any other provisions of (i) the Fourth Amended and Restated Omnibus Agreement, (ii) the Carson II Storage Agreement, and (iii) Amendment No. 1 to the (SoCal) Transportation Services Agreement dated November 12, 2015, between TRMC and Tesoro SoCal Pipeline Company LLC, the parties hereto agree that the indemnification provisions of any of those agreements shall control over any of the other agreements to the extent the subject matter of the indemnification is specifically referenced or provided for in that agreement. In the event of a conflict of provisions of any of the above-referenced agreements and the Fourth Amended and Restated Omnibus Agreement, the provisions of the Fourth Amended and Restated Omnibus Agreement shall prevail with respect to issues related to the contribution of the assets described therein, but not with respect to the ordinary operations of such assets as set forth in the above-referenced agreements.
For 2016 Alaska Assets Contribution Agreement listed on Schedule VII:
The Partnership Group agree that, after the Effective Date, they shall not knowingly breach any covenants of TAC contained in that certain Asset Purchase Agreement dated as of November 20, 2015 by and between Flint Hills Resources Alaska, LLC and TAC (the Flint Hills APA) as if the Partnership Group were parties thereto instead of TAC.
Notwithstanding any other provisions of (i) the Fourth Amended and Restated Omnibus Agreement, (ii) the Kenai Storage Services Agreement, and (iii) the Alaska Terminalling Services Agreement, the parties hereto agree that the indemnification provisions of any of those agreements shall control over any of the other agreements to the extent the subject matter of the indemnification is specifically referenced or provided for in that agreement. In the event of a conflict of provisions of any of the above-referenced agreements and the Fourth Amended and Restated Omnibus Agreement, the provisions of the Fourth Amended and Restated Omnibus Agreement shall prevail with respect to issues related to the contribution of the assets described therein, but not with respect to the ordinary operations of such assets as set forth in the above-referenced agreements.
Schedule IX- Page 4 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
Notwithstanding any other provisions of the Fourth Amended and Restated Omnibus Agreement, the indemnification obligations of the Andeavor Entities under Section 3.1(a) of the Fourth Amended and Restated Omnibus Agreement with regard to the 2016 Environmental Consent Decree are limited to reimbursement for any capital expenditures that the Partnership Group may be required to make to comply therewith and any fines or other penalties which may be levied for any failure therewith (except to the extent such fines or other penalties are the result of the failure of the Partnership Group to comply therewith with regard to the contributed assets) and such indemnification obligations shall extend to or cover any increased ongoing operating or maintenance expenses incurred by the Partnership Group in connection with their compliance therewith.
For Martinez Assets Contribution Agreement listed on Schedule VII:
Notwithstanding any other provisions of (i) the Fourth Amended and Restated Omnibus Agreement, (ii) the Martinez Storage Services Agreement, dated as of November 21 2016, between TRMC and the Operating Company; (iii) the Avon Marine Terminal Operating Agreement, dated as of November 21 2016, between TRMC and the Operating Company; (iv) the License Agreement, dated as of November 21 2016, between TRMC and the Operating Company; and (v) the Avon Marine Terminal Sublease Agreement and the Avon Marine Terminal Use and Throughput Agreement to be entered into between TRMC and the Operating Company pursuant to Section 2.5 of the Martinez Assets Contribution Agreement, the parties hereto agree that the indemnification provisions of any of those agreements shall control over any of the other agreements to the extent the subject matter of the indemnification is specifically referenced or provided for in that agreement. In the event of a conflict of provisions of any of the above-referenced agreements and the Fourth Amended and Restated Omnibus Agreement, the provisions of the Fourth Amended and Restated Omnibus Agreement shall prevail with respect to issues related to the contribution of the assets described therein, but not with respect to the ordinary operations of such assets as set forth in the above-referenced agreements.
For Assets owned by WNRL on the Closing Date of the Merger Agreement and acquired by the Partnership pursuant to the Merger Agreement by virtue of its acquisition of WNRL thereunder:
Notwithstanding any other provisions of the Fourth Amended and Restated Omnibus Agreement, the Parties hereto agree that the indemnification provisions in Article VI of the SERA shall control and prevail over any of the provision of the Fourth Amended and Restated Omnibus Agreement, other than Section 3.5(b), and shall be the exclusive provisions for all indemnification obligations relating to the subject matter of the indemnities so provided in Article VI of the SERA.
Schedule IX- Page 5 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
For 2017 Anacortes Assets Contribution Agreement listed on Schedule VII:
1. Notwithstanding any other provisions of (i) the Fourth Amended and Restated Omnibus Agreement, (ii) the Anacortes Storage Services Agreement Anacortes II, dated as of November 8, 2017, between TRMC and the Operating Company; (iii) the Anacortes Marine Terminal Operating Agreement, dated as of November 8, 2017, between TRMC and the Operating Company; (iv) the Pipeline Transportation Services Agreement Anacortes Short Haul Pipelines dated as of November 8, 2017, between TRMC and the Operating Company, (v) the Ground Lease dated as of November 8, 2017, between TRMC and the Operating Company with respect to the real property underlying the Tankage; (vi) the Second Amendment dated as of November 8, 2017, to that certain Ground Lease between TRMC and the Operating Company relating to a portion of the Anacortes Refinery dated as of November 15, 2012, (vii) the First Amendment dated as of November 8, 2017, to that certain Ground Lease between TRMC and the Operating Company relating to a portion of the Anacortes Refinery dated as of July 1, 2014, (viii) the Sublease Rights and Escrow Agreement between TRMC and the Operating Company dated as of November 8, 2017 and (ix) the Anacortes Marine Terminal Use and Throughput Agreement to be entered into between TRMC and the Operating Company pursuant to Sublease Rights and Escrow Agreement, the Parties hereto agree that the indemnification provisions of any of those agreements shall control over any of the other agreements to the extent the subject matter of the indemnification is specifically referenced or provided for in that agreement. In the event of a conflict of provisions of any of the above-referenced agreements and the Fourth Amended and Restated Omnibus Agreement, the provisions of the Fourth Amended and Restated Omnibus Agreement shall prevail with respect to issues related to the contribution of the assets described therein, but not with respect to the ordinary operations of such assets as set forth in the above-referenced agreements.
2. The expenses reimbursable to the Partnership Group for repairs and maintenance of any aboveground storage tanks, included within the Assets conveyed, contributed or otherwise transferred pursuant to the 2017 Anacortes Contribution Agreement (2017 Anacortes Storage Tanks), under Section 5.1(b) of the Fourth Amended and Restated Omnibus Agreement required to bring any of the 2017 Anacortes Storage Tanks into compliance with API Standard 653 shall include the expense of any required earthwork (such as new sandbeds) to restore such storage tanks to active service; provided that such expenses shall not include any expenses for Covered Environmental Losses, which shall continue to be governed by Section 3.1 of the Fourth Amended and Restated Omnibus Agreement and the provisions of paragraph 3 below.
3. For any of the 2017 Anacortes Storage Tanks for which the first API 653 internal inspection has not been completed prior to the fifth anniversary of the applicable Closing Date, the Operating Company shall conduct a detailed review of all available inspection records or other reports applicable to such storage tanks and shall make inspections of the visible external condition of the tanks prior to such fifth anniversary of the applicable Closing Date. If such review and inspection indicates, in the reasonable judgment of the Operating Company, that there exists a reasonable concern regarding the structural integrity of any such tank, then:
(a) The Operating Company shall provide written notice of such reasonable concern to TRMC, including a detailed description of the Operating Companys reasons for such concern;
(b) The Operating Company shall schedule the first API 653 internal inspection of any such tank at the soonest practical date; and
Schedule IX- Page 6 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
(c) The Identification Deadline with regard to any Covered Environmental Losses caused by any release from such tank first identified at the time of such first API 653 internal inspection of such tank shall be extended for a period of sixty (60) days following the completion of such first API 653 internal inspection of such tank.
For 2018 Assets Contribution Agreement listed on Schedule VII:
Defined terms used in this portion of Schedule IX without definition will have the meaning given such terms in the 2018 Assets Contribution Agreement.
1. Notwithstanding any other provisions of (i) the Fourth Amended and Restated Omnibus Agreement, (ii) the Master Terminaling Services Agreement, dated as of August 6, 2018, by between those parties identified as Providers and those identified as Customers on Schedule I thereto, (iii) Transportation Services Agreement (LAR Interconnecting Pipelines) dated August 6, 2018, by and between Tesoro SoCal Pipeline Company LLC and Tesoro Refining & Marketing Company LLC, (iv) Construction Service Agreement (Los Angeles Refinery Interconnecting Pipelines) dated August 6, 2018, by and between Tesoro SoCal Pipeline Company LLC and Tesoro Refining & Marketing Company LLC, (v) Asphalt Terminalling, Transportation and Storage Services Agreement dated August 6, 2018, by and between Western Refining Company, L.P. and Asphalt Terminals LLC, (vi) Master Unloading and Storage Agreement dated August 6, 2018, by and between Western Refining Pipeline, LLC and Western Refining Company, L.P., (vii) Special Warranty Deed for Clearbrook dated August 6, 2018, between WRSW and the Operating Company, (viii) Special Warranty Deed for Wingate Terminal dated August 6, 2018, between WRSW and Western Refining Terminals, LLC (WRT), (ix) Special Warranty Deed for Mason East Station dated August 6, 2018, between WRSW and Western Refining Pipeline, LLC (WRP), (x) Special Warranty Deed for Conan terminal dated August 6, 2018, between Western Refining Conan Gathering, LLC and WRT, (xi) Special Warranty Deed for Jal Terminal dated August 6, 2018, between WRCL and WRT, (xii) Conveyance, Bill of Sale, Assignment and Assumption for Benny Pipeline dated August 6, 2018, between WRSW and WRP, (xiii) Conveyance, Bill of Sale, Assignment and Assumption for Bobcat Pipeline dated August 6, 2018, between WRSW and WRP, (xiv) Conveyance, Bill of Sale, Assignment and Assumption for Conan pipeline dated August 6, 2018, between WRSW and Western Refining Conan Gathering, LLC, (xv) Conveyance, Bill of Sale, Assignment and Assumption for Aranco Pipeline dated August 6, 2018, between St. Paul Park Refining Co. LLC and the Operating Company, and (xvi) Conveyance, Bill of Sale, Assignment and Assumption for Clearbrook dated August 6, 2018, between WRSW and the Operating Company, the Parties hereto agree that the indemnification provisions of any of those agreements shall control over any of the other agreements to the extent the subject matter of the indemnification is specifically referenced or provided for in that agreement. In the event of a conflict of provisions of any of the above-referenced agreements and the Fourth Amended and Restated Omnibus Agreement, the provisions of the Fourth Amended and Restated Omnibus Agreement shall prevail with respect to issues related to the contribution of the assets described therein, but not with respect to the ordinary operations of such assets as set forth in the above-referenced agreements. With respect to the LA Refinery Interconnecting Pipeline, the Aranco Pipeline, and the assets conveyed to the Partnership Group as a result of the transfer of the MPL Units, the WRCG Units, the WRDBS Units, the ATL
Schedule IX- Page 7 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
Units, and the Andeavor Rio Units by the Andeavor Entities to the Partnership Group, the indemnities in those other agreements and in this Schedule IX shall be the exclusive indemnity obligations between the Andeavor Entities and the Partnership Group, and the indemnities in Sections 3 and 5 of the Fourth Amended and Restated Omnibus Agreement shall not apply.
2. With respect to (i) the Ground Lease dated August 6, 2018 for Mandan Refinery between TRMC and the Operating Company, and (ii) Ground Lease dated August 6, 2018 for Salt Lake Refinery between TRMC and the Operating Company, which include warranties of quiet enjoyment and indemnity obligations governed by the Master Terminalling Services Agreement and the Fourth Amended and Restated Omnibus Agreement, the Fourth Amended and Restated Omnibus Agreement shall prevail in the event of any conflict with the Master Terminalling Services Agreement.
3. With respect to the surface and subsurface of the lands on the LARW Refinery Unit, LARC Refinery Unit and LA Refinery Interconnecting Pipeline for which access is licensed to the Partnership Group by the Andeavor Entities pursuant to the License Agreement referenced in the 2018 Assets Contribution Agreement, (i) the Andeavor Entities shall remain liable and responsible for all liabilities, costs and expenses (including without limitation, response and remediation costs) arising by reason of contamination by hazardous substances to the extent (a) caused by TRMC while it held fee title to the land and existed on or before the date of the 2018 Assets Contribution Agreement or (b) resulting from future operations by TRMC on the land after the date of the 2018 Assets Contribution Agreement while TRMC holds fee title to the property, and (ii) liabilities regarding environmental liabilities arising from TRMCs operation on such lands on or after the date of the 2018 Assets Contribution Agreement shall be as provided in the Master Terminalling and Storage Agreement or the Pipeline Transportation Agreement, as applicable.
4. Before the effective date of the 2018 Assets Contribution Agreement, Western Refining Company, L.P., a subsidiary of Andeavor, acquired certain asphalt terminals and other assets under an Asset Purchase Agreement dated February 9, 2018 (the Asphalt Terminals APA), and TRMC acquired the Andeavor Rio Units and the Andeavor CD Units under a Purchase and Sale Agreement dated December 26, 2017 (the Rio Pipeline APA). With respect to the assets acquired under the Asphalt Terminals APA and the assets and interests acquired under the Rio Pipeline APA, the Andeavor Entities shall provide to the Partnership Group the benefit of all indemnification rights from third parties that the Andeavor Entities hold with respect to such assets by reason of the Asphalt Terminals APA and the Rio Pipeline APA.
The Partnership Group agrees that, after the effective date of the 2018 Assets Contribution Agreement, they shall not do anything that would be considered a breach of the Asphalt Terminals APA or the Rio Pipeline APA as if the Partnership Group were parties thereto instead of Western Refining Company, L.P. or TRMC, respectively, and the Partnership Group will defend, indemnify and hold harmless the Andeavor Group against all Losses due to any Partnership Group Members breach thereof.
Schedule IX- Page 8 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
5. The Partnership Group Member that is the assignee of an assigned contracts listed on Schedule B to the 2018 Assets Contribution Agreement agrees to defend, indemnify and hold harmless the Andeavor Group against all Losses arising under the assigned contract due to any Partnership Group Members failure to perform its obligations under the assigned contract.
6. To the extent that any Andeavor Entity remains the guarantor of any obligations of a company or other entity that is contributed to the Partnership Group through the WRS Unit Contribution, the Partnership Group agrees to defend, indemnify and hold harmless the Andeavor Group against all Losses arising under any such guaranty.
Schedule IX- Page 9 to
Second Amended and Restated Schedules to Fourth Amended and Restated Omnibus Agreement
Exhibit 10.2
Execution Version
MASTER TERMINALLING SERVICES AGREEMENT
This Master Terminalling Services Agreement (this Master Agreement ) is dated as of August 6, 2018, by and between, with respect to each respective Terminal set forth on Schedule I and the Terminal Service Order applicable thereto, the party identified as Customer with respect to such respective Terminal as set forth on Schedule I (such party, as applicable to the respective Terminal, a Customer ), and the party identified as Provider with respect to such respective Terminal as set forth on Schedule I and the Terminal Service Order applicable thereto (such party, as applicable to the respective Terminal, a Provider ).
RECITALS
WHEREAS , on the date hereof, with respect to the respective Terminal, Customer will contribute certain assets and interests to Andeavor Logistics LP, a Delaware limited partnership (the Partnership ), and the Partnership will contribute those assets and interests to Provider, all on the terms and conditions set forth in that certain Contribution, Conveyance and Assumption Agreement dated as of the date hereof;
WHEREAS , Provider will operate the Terminal pursuant to this Agreement; and
WHEREAS , Customer and Provider desire to enter into this Agreement with respect to the respective Terminal to memorialize the terms of their commercial relationship.
NOW, THEREFORE , in consideration of the covenants and obligations contained herein, the Parties hereby agree as follows:
1. DEFINITIONS
Capitalized terms used throughout this Agreement shall have the meanings set forth below, unless otherwise specifically defined herein.
Agreement has the meaning set forth in Section 2(a) .
Ancillary Services has the meaning set forth in Section 3(d) .
API means American Petroleum Institute.
Applicable Law means any applicable statute, law, regulation, ordinance, rule, determination, judgment, rule of law, order, decree, permit, approval, concession, grant, franchise, license, requirement, or any similar form of decision of, or any provision or condition of any permit, license or other operating authorization issued by any Governmental Authority having or asserting jurisdiction over the matter or matters in question, whether now or hereafter in effect.
ASTM means ASTM International, formerly known as the American Society for Testing and Materials.
Barrel means a volume equal to 42 U.S. gallons of 231 cubic inches each, at 60 degrees Fahrenheit under one atmosphere of pressure.
Blending Services has the meaning set forth in Section 9 .
bpm means Barrels per Month.
Business Day means a day, other than a Saturday or Sunday, on which banks in New York, New York are open for the general transaction of business.
Capacity means the gross storage capacity of a tank for each respective Product at the respective Terminal, based upon its dimensions.
Capacity Resolution has the meaning set forth in Section 28(c) .
Carrier means a third-party agent or contractor who transports Products via tank trucks or railcars to or from the Terminal for Customer or for Customers account.
Commencement Date has the meaning set forth in Section 2(b) .
Confidential Information means all confidential, proprietary or non-public information of a Party, whether set forth in writing, orally or in any other manner, including all non-public information and material of such Party (and of companies with which such Party has entered into confidentiality agreements) that another Party obtains knowledge of or access to, including non-public information regarding products, processes, business strategies and plans, customer lists, research and development programs, computer programs, hardware configuration information, technical drawings, algorithms, know-how, formulas, processes, ideas, inventions (whether patentable or not), trade secrets, schematics and other technical, business, marketing and product development plans, revenues, expenses, earnings projections, forecasts, strategies, and other non-public business, technological, and financial information.
Control means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities, by contract, or otherwise.
Customer has the meaning set forth in the Preamble. For the avoidance of doubt, Customer shall mean the applicable Customer with respect to the respective Provider, Refinery, and Terminal identified on Schedule I.
Customer Group has the meaning set forth in Section 23(a) .
Customer Termination Notice has the meaning set forth in Section 27(b) .
Dedicated Tanks has the meaning set forth in Section 5(a) .
EPA means U.S. Environmental Protection Agency.
Extension Period has the meaning set forth in Section 2(b) .
2
Force Majeure means events or circumstances, whether foreseeable or not, not reasonably within the control of Provider and which, by the exercise of due diligence, Provider is unable to prevent or overcome, that prevent performance of Providers obligations hereunder, including: acts of God, strikes, lockouts or other industrial disturbances, wars, riots, fires, floods, storms, orders of Governmental Authorities, explosions, terrorist acts, breakage, accident to machinery, equipment, storage tanks or lines of pipe, and inability to obtain or unavoidable delays in obtaining material or equipment and similar events.
Force Majeure Notice has the meaning set forth in Section 27(a) .
Force Majeure Period has the meaning set forth in Section 27(a) .
Governmental Authority means any federal, state, local or foreign government or any provincial, departmental or other political subdivision thereof, or any entity, body or authority exercising executive, legislative, judicial, regulatory, administrative or other governmental functions or any court, department, commission, board, bureau, agency, instrumentality or administrative body of any of the foregoing.
Indemnified Group means the Customer Group or the Provider Group, as applicable.
Initial Term has the meaning set forth in Section 2(b) .
LPG means liquid petroleum gas, including, but not limited to, butane, isobutane, and propane.
Master Agreement has the meaning set forth in the Preamble.
Month means a calendar month.
Notice Period has the meaning set forth in Section 26(a) .
Operating Procedures has the meaning set forth in Section 28(f) .
Partnership has the meaning set forth in the Recitals.
Partnership Change of Control means Andeavor ceases to Control the general partner of the Partnership.
Party or Parties means that each of Customer and Provider, as applicable with respect to the respective Terminal, is a Party and collectively are the Parties to this Agreement.
Passthrough Charges has the meaning set forth in Section 7(a) .
Person means any individual, partnership, limited partnership, joint venture, corporation, limited liability company, limited liability partnership, trust, unincorporated organization or Governmental Authority or any department or agency thereof.
Product or Products means the hydrocarbons (including waste water produced therefrom), diesel, LPGs, petroleum products, ethanol or biofuels, crude oil, Transmix, refined products, refinery feedstocks, intermediate products and/or fuel oil described herein as being handled under this Agreement at a respective Terminal, as applicable, in each case, to the extent permitted under the applicable Terminal Service Order.
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Provider has the meaning set forth in the Preamble. For the avoidance of doubt, Provider shall mean the applicable Provider with respect to the respective Customer, Refinery, and Terminal identified on Schedule I .
Provider Group has the meaning set forth in Section 23(b) .
Rail Excess Amount has the meaning set forth in Section 6(b) .
Rail Loading Equipment has the meaning set forth in Section 6(c) .
Rail Loading Services Fee has the meaning set forth in Section 6(a) .
Rail Minimum Commitment means the volume in bpm throughput at the respective Terminal by loading and unloading railcars by Provider on behalf of Customer, as set forth on Schedule C hereto.
Rail Reserved Capacity means the volume in bpm throughput at the respective Terminal by loading and unloading railcars by Provider on behalf of Customer, as set forth on Schedule C hereto.
Rail Shortfall Payment has the meaning set forth in Section 6(d) .
Receiving Party Personnel has the meaning set forth in Section 33(d) .
Refinery means a Customers respective refinery(ies) associated with the respective Terminal, as identified on Schedule I . For the avoidance of doubt, Refinery shall mean the respective Refinery as applicable to the respective Terminal, Provider, and Customer identified on Schedule I .
Reserved Capacity means the effective storage capacity of a tank, taking into account accepted engineering principles, industry standards, API guidelines and Applicable Law, only as to Products that each tank is capable of storing, within the requirements of applicable permit requirements and under actual conditions as they may exist at any time. The Reserved Capacity of each Dedicated Tank at a respective Terminal, as applicable, is listed on Schedule B , as may be amended by an applicable Terminal Service Order. The Parties recognize that the existing Reserved Capacity of certain tanks may be less than the Capacity of such Dedicated Tanks. For the avoidance of doubt, the Reserved Capacity set forth on Schedule B , as may be amended by an applicable Terminal Service Order, is intended as a representation for the full Capacity of each Dedicated Tank.
Restoration has the meaning set forth in Section 28(b) .
Special Damages has the meaning set forth in Section 22(a) .
Storage Services Fee has the meaning set forth in Section 5(a) .
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Surcharge has the meaning set forth in Section 11(a) .
Suspension Notice has the meaning set forth in Section 26(a) .
Tank Heels consist of the minimum quantity of Product which either (a) must remain in a tank during all periods when the tank is available for service to keep the tank in regulatory compliance or (b) is necessary for physical operation of the tank.
Term has the meaning set forth in Section 2(b) .
Terminal means a Providers respective terminal, as identified on Schedule I . For the avoidance of doubt, Terminal shall mean the applicable Terminal as applicable to the respective Provider, Customer, and Refinery identified on Schedule I .
Terminal Excess Amount has the meaning set forth in Section 4(b) .
Terminal Minimum Throughput Commitment for the respective Terminal means the volume in bpm set forth for such respective Terminal on Schedule A hereto.
Terminal Reserved Capacity for the respective Terminal means the volume in bpm set forth for such respective Terminal on Schedule A hereto.
Terminal Service Order has the meaning set forth in Section 13(a) .
Terminalling Equipment has the meaning set forth in Section 4(c) .
Terminalling First Offer Period has the meaning set forth in Section 30(b) .
Terminalling Right of First Refusal has the meaning set forth in Section 30(b) .
Terminalling Service Fee means for any Month during the Term, the total fee per Barrel of throughput paid by Customer during that Month for terminalling and Ancillary Services at the respective Terminal (but excluding the Storage Services Fee and the Rail Loading Services Fee) as set forth on a Terminal Service Order for such respective Terminal.
Terminalling Shortfall Payment has the meaning set forth in Section 4(d) .
Termination Notice has the meaning set forth in Section 27(a) .
Transmix has the meaning set forth in Section 8 .
ULSD means ultra-low sulfur diesel.
2. TERM ; TERMINAL SERVICE ORDERS
(a) For the duration of this Master Agreement, Customer and Provider shall enter into Terminal Service Orders as set forth in Section 13(a) , each of which shall create a separate and specific agreement in respect of the services described in such Terminal Service Order between the Customer identified in the applicable Terminal Service Order and the Provider identified in the
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applicable Terminal Service Order (such separate agreement is hereinafter referred to as an Agreement ). Each Agreement shall consist, collectively, of the terms and conditions set forth in this Master Agreement and the applicable Terminal Service Order. Any reference contained herein to this Agreement shall refer to the applicable Agreement between the applicable Customer and the applicable Provider with respect to each Terminal and the services provided by Provider in connection therewith. The various Provider parties under this Master Agreement shall be severally (and not jointly) liable for the obligations of Provider set forth herein with respect to the applicable Agreement and the applicable Terminal. The various Customer parties under this Master Agreement shall be severally (and not jointly) liable for the obligations of Customer set forth herein with respect to the applicable Agreement and the applicable Terminal.
(b) The initial term of each Agreement associated with a Terminal Service Order executed in connection with this Master Agreement shall commence on the date hereof (the Commencement Date ) and shall continue through August 6, 2028 (the Initial Term ); provided, however, that Customer may, at its option, extend the Initial Term of the applicable Agreement for up to two (2) renewal terms of five (5) years each (each, an Extension Period ) by providing written notice of its intent to Provider no less than three hundred sixty-five (365) calendar days prior to the end of the Initial Term or the then-current Extension Period. The Initial Term, and any Extension Period, with respect to each Agreement shall be referred to herein as the Term .
(c) If Customer has not provided written notice of its intent to extend the Initial Term of the applicable Agreement for the first Extension Period of the applicable Agreement pursuant to Section 2(b) , Provider may, at its option, provide written notice to Customer no less than ninety (90) days prior to the end of the Initial Term of the applicable Agreement to extend the Initial Term of the applicable Agreement for an additional two (2) years, and, if exercised, such additional two (2) years shall be considered part of the Term of the applicable Agreement.
3. SERVICES
During the Term and subject to the terms and conditions of this Agreement and any Terminal Service Order, Provider shall make available to Customer the following services, as applicable:
(a) Throughput services at the respective Terminal including but not limited to scheduling and dispatching of orders, accounting and documentation for truck and railcar loading, volumetric measurements and documentation, and interfacing with rail and truck common carriers) pursuant to Section 4 below;
(b) Dedicated storage at the respective Terminal pursuant to Section 5 below;
(c) Rail loading services at the respective Terminal pursuant to Section 6 below; and
(d) The Blending Services pursuant to Section 9 below and other services as set forth on a Terminal Service Order and any and other services pursuant to a Terminal Service Order (collectively, the Ancillary Services ).
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4. TERMINAL THROUGHPUT SERVICES
(a) Terminal Throughput Commitment and Terminalling Service Fee . As applicable at the respective Terminal as set forth on Schedule I and Schedule A , Customer shall deliver and/or pay for the Terminal Minimum Throughput Commitment at such respective Terminal and Provider shall make available to Customer at all times dedicated storage and throughput capacity at such respective Terminal sufficient to allow Customer to throughput the Terminal Reserved Capacity for such respective Terminal. Customer shall pay the Terminalling Service Fee for such service as set forth in a Terminal Service Order for the respective Terminal. Allocation of throughput capacity for separate Products at the respective Terminal shall be set forth in a Terminal Service Order, if applicable. Provider shall not make any commitments to third parties that would interfere with the ability of Customer to throughput the Terminal Reserved Capacity at the respective Terminal for each Product. Customer commits to deliver and/or pay for the Terminal Minimum Throughput Commitment for the respective Terminal on a Monthly basis during the Term.
(b) Excess Capacity . Customer may throughput volumes in excess of the Terminal Reserved Capacity for the respective Terminal, up to the then-available capacity of the respective Terminal, net of any third-party commitments, as determined by Provider at any time, which allocation of any excess capacity shall be in accordance with current practices, or as otherwise may be set forth in a Terminal Service Order. If during any Month during the Term, Customer throughputs aggregate volumes of a particular Product at the respective Terminal greater than the Terminal Minimum Throughput Commitment for such respective Terminal, then Customer shall pay Provider an amount equal to the fee determined by multiplying the actual volumes throughput by Customer in excess of the Terminal Minimum Throughput Commitment for such respective Terminal by the Terminalling Service Fee for such respective Terminal (the Terminal Excess Amount ).
(c) Removal of Equipment from Service . If at any time during the Term, any tank, rack or other equipment or facility of Provider that is dedicated to Customer or otherwise being used to provide services hereunder ( Terminalling Equipment ), is removed from service, and if removal of such Terminalling Equipment restricts Customer from being able to throughput the Terminal Reserved Capacity for the respective Terminal or receive associated Ancillary Services, then Customers Minimum Throughput Commitment for such respective Terminal shall be reduced by the difference (but such difference cannot be less than zero) between the Terminal Minimum Throughput Commitment and the amount that Customer can effectively throughput at such respective Terminal without restriction until such Terminalling Equipment is restored to service.
(d) Shortfall Payments . If, during any Month during the Term, Customer throughputs aggregate volumes at the respective Terminal less than the Terminal Minimum Throughput Commitment for such respective Terminal for such Month, then Customer shall pay Provider an amount (a Terminalling Shortfall Payment ) for any shortfall. Terminalling Shortfall Payments shall be equal to the amount determined by taking the difference between (i) the Terminal Minimum Throughput Commitment for such respective Terminal multiplied by the Terminalling Service Fee for such respective Terminal and (ii) the actual volumes throughput by Customer at such respective Terminal multiplied by the Terminalling Service Fee for such respective Terminal. The dollar amount of any Terminalling Shortfall Payment paid by Customer shall be posted as a credit to Customers account and may be applied against any Terminal Excess Amounts owed by Customer during any of the succeeding three (3) Months. Credits will be applied in the order in
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which such credits accrue and any remaining portion of the credit that is not used by Customer during the succeeding three (3) Months shall expire ( e.g ., a credit that accrues in January will be available in February, March and April, will expire at the end of April, and must be applied prior to applying any credit which accrues in February).
5. DEDICATED STORAGE
(a) Storage Services Fee . As applicable at the respective Terminal as set forth on Schedule I and Schedule B, Customer shall pay a Monthly fee (the Storage Services Fee ) to reserve, on a firm basis, all of the existing aggregate Capacity of certain tanks (the Dedicated Tanks ) at the respective Terminal as specified on a Terminal Service Order. Such fee shall be payable by Customer on a Monthly basis throughout the Term, regardless of the actual volumes of Products stored by Provider on behalf of Customer; provided, however, that the Parties shall from time to time negotiate an appropriate adjustment to such fee if the following conditions are met: (i) Customer requires the full Reserved Capacity of the Dedicated Tanks, (ii) the full Reserved Capacity of the Tanks is not available to Customer for any reason (other than any reason resulting from or relating to actions or inactions by Customer), and (iii) Provider is unable to otherwise accommodate the actual volumes of Products required to be stored by Customer pursuant to the terms of this Agreement or any Terminal Service Order. Unless otherwise agreed, such adjustment shall be made in proportion to the reduction in Reserved Capacity for any time period compared with the Reserved Capacity then in effect for the affected Dedicated Tanks pursuant to this Agreement and the mutually agreed Terminal Service Orders. Such Storage Services Fee shall include all storage, pumping, and transshipment between and among the Dedicated Tanks.
(b) Calculation of Storage Services Fee . The Storage Services Fee for each respective Terminal shall be calculated using the per Barrel rate set forth in the initial Terminal Service Order executed effective as of the Commencement Date for the then-existing Reserved Capacity of the in-service Dedicated Tanks for such respective Terminal specified on Schedule B and in such initial Terminal Service Order. The Storage Services Fee owed during the Month in which the Commencement Date occurs, if less than a full Month, shall be prorated in accordance with the ratio of (i) the number of days in such Month during which this Agreement is effective to (ii) the total number of days in such Month.
(c) Steam Services . As applicable at the respective Terminal and as set forth in an applicable Terminal Service Order, either Party may provide the other Party steam services as measured pursuant to such applicable Terminal Service Order, at the fees set forth in such applicable Terminal Service Order.
(d) Removal of Oily Water . As applicable at the respective Terminal, Provider shall provide Customer services for oily water pursuant to an applicable Terminal Service Order, at the fees set forth in such applicable Terminal Service Order.
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6. RAIL SERVICES
(a) Rail Services . As applicable at the respective Terminal as set forth on Schedule I and Schedule C , Provider shall provide to Customer such rail loading and unloading services at the respective Terminal as may be provided for in a Terminal Service Order. Customer shall deliver and/or pay for the Rail Minimum Commitment and Provider shall make available to Customer at all times rail loading and unloading capacity at such respective Terminal sufficient to allow Customer to throughput the Rail Reserved Capacity, subject to railroad scheduling procedures and the Operating Procedures for such respective Terminal. Customer shall pay the Rail Loading Services Fee for such services as set forth in a Terminal Service Order. Provider shall not make any commitments to third parties that would interfere with the ability of Customer to throughput the Rail Reserved Capacity at such respective Terminal. Customer commits to deliver and/or pay for the Rail Minimum Commitment on a Monthly basis during the Term.
(b) Excess Capacity . Customer may load and unload rail volumes in excess of the Rail Reserved Capacity, up to the then-available capacity of the respective Terminal, net of any third-party commitments, as determined by Provider at any time, which allocation of any excess capacity shall be in accordance with current practices, or as otherwise may be set forth in a Terminal Service Order. If during any Month during the Term, Customer loads or unloads aggregate rail volumes at the respective Terminal greater than the Rail Minimum Commitment, then Customer shall pay Provider an amount equal to the fee determined by multiplying the actual rail volumes loaded or unloaded by Customer in excess of the Rail Minimum Commitment by the Rail Loading Services Fee ( Rail Excess Amount ).
(c) Removal of Equipment from Service . If at any time during the Term, any equipment or facility of Provider that is dedicated to Customer or otherwise being used to provide railcar loading or unloading services hereunder ( Rail Loading Equipment ), is removed from service, and if the removal of such Rail Loading Equipment restricts Customer from being able to throughput the Rail Reserved Capacity for the respective Terminal, then Customers Rail Minimum Commitment shall be reduced by the difference (but such difference cannot be less than zero) between the Rail Minimum Commitment and the rail volume that Customer can effectively throughput at the respective Terminal without restriction until such Rail Loading Equipment is restored to service.
(d) Shortfall Payments . If, during any Month during the Term, Customer throughputs aggregate rail volumes at the respective Terminal that are less than the Rail Minimum Commitment for such Month, then Customer shall pay Provider an amount (a Rail Shortfall Payment ) for any shortfall. Rail Shortfall Payments shall be equal to the amount determined by taking the difference between (i) the Rail Minimum Commitment multiplied by the Rail Loading Services Fee and (ii) the actual rail volumes throughput by Customer at the respective Terminal multiplied by the Rail Loading Services Fee. The dollar amount of any Rail Shortfall Payment paid by Customer shall be posted as a credit to Customers account and may be applied against any Rail Excess Amounts owed by Customer during any of the succeeding three (3) Months. Credits will be applied in the order in which such credits accrue and any remaining portion of the credit that is not used by Customer during the succeeding three (3) Months shall expire ( e.g ., a credit that accrues in January will be available in February, March and April, will expire at the end of April, and must be applied prior to applying any credit which accrues in February).
(e) Caustic Chemical and Catalyst Loading and Unloading . As applicable at the respective Terminal, Provider shall provide railcar loading and unloading services for Customers caustic chemicals and catalysts at the respective Terminal, pursuant to an applicable Terminal Service Order, at the fees set forth in such applicable Terminal Service Order.
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(f) Rail Car Switching and Storage . As applicable at the respective Terminal, Provider will provide manifest railcar switching services and railcar storage services on behalf of Customer, pursuant to an applicable Terminal Service Order, at the fees set forth in such applicable Terminal Service Order. Switching activity covers movements between the drop-off track, pick-up track, offloading racks and storage tracks. Switching services will include assembling the cars that are scheduled to depart the respective Refinery on the outbound track prior to pick up by the applicable railroad company.
(g) Track Inspection and Maintenance . As applicable at the respective Terminal, Provider shall provide track inspection and maintenance services on behalf of Customer pursuant to an applicable Terminal Service Order, at the fees set forth in such applicable Terminal Service Order.
7. PASS THROUGH CHARGES
(a) Provider may incur fees and charges ( Passthrough Charges ) from Governmental Authorities, railroad companies, or other third parties relating to use of facilities other than the respective Terminal related to the receipt, delivery or loading of Product. These Passthrough Charges may include, without limitation, any rail scheduling or access charges by an applicable railroad corporation. These Passthrough Charges may be passed through and charged directly to Customer as set forth in a Terminal Service Order.
(b) Provider shall have the right to require prepayment of the anticipated amount of any Passthrough Charges prior to performance of any operation that may incur such Passthrough Charges.
(c) If third party contractors are to provide services, material or equipment that may require Passthrough Charges, then to the extent that Provider, as operator of the respective Terminal, has discretion to select such contractor, Customer may designate the contractor who should provide such services, materials or equipment, subject to Providers consent, which shall not be unreasonably withheld.
8. PRODUCT DOWNGRADE AND INTERFACE
As applicable at the respective Terminal and as set forth on the respective Terminal Service Order, Provider shall account for the volume of Product downgraded, and Customers inventory of Products and/or interface shall be adjusted, provided that, interface volume ( Transmix ) received shall be allocated entirely to Customer. Customer shall remove its Transmix upon notice from Provider and shall be subject to applicable Transmix handling fees upon its removal, as provided in a Terminal Service Order. If Transmix is not removed within fifteen (15) Business Days after notification (such time period to be extended to the extent of any delay or hindrance by Provider, its agents or contractors for any reason), Provider shall have the right to sell such Transmix at market rates and return any proceeds to Customer, less applicable Transmix handling fees in effect at the time of such sale. Product downgraded as a result of ordinary terminalling or pipeline operations including line flushing, rack meter provings or other necessary terminalling operations shall not constitute losses for which Provider is liable to Customer.
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9. BLENDING SERVICES
Services and Equipment . Provider may provide storage, pumping, and blending services and trans-shipment of the Products at the respective Terminal, as set forth on a Terminal Service Order ( Blending Services ).
10. REIMBURSEMENT FOR NEWLY IMPOSED TAXES AND REGULATORY FEES; EXCISE TAXES
(a) Prompt Reimbursement . Customer shall promptly pay or reimburse Provider for any newly imposed taxes, levies, royalties, assessments, licenses, fees, charges, surcharges and sums due of any nature whatsoever (other than income taxes, gross receipt taxes and similar taxes) by any federal, state or local government or agency that Provider incurs on Customers behalf for the services provided by Provider under this Agreement or any Terminal Service Order. If Provider is required to pay any of the foregoing, Customer shall promptly reimburse Provider in accordance with the payment terms set forth in this Agreement. Any such newly imposed taxes or regulatory fees as provided for in this Section 10(a) shall be specified in an applicable Terminal Service Order.
(b) Excise Tax Certification . Upon written request by Provider, Customer shall supply Provider with a completed signed original notification certificate of gasoline and diesel fuel registrant as required by the Internal Revenue Services excise tax regulation. Customer further agrees to comply with all Applicable Law with respect to such taxes.
(c) Exemption Certification . If Customer is exempt from the payment of any taxes allocated to Customer under the foregoing provisions, Customer shall furnish Provider with the proper exemption certificates.
(d) Payment . All of the foregoing reimbursements shall be made in accordance with the terms set forth in Section 13(b) .
11. EXPENDITURE REQUIRED BY NEW LAWS AND REGULATIONS
(a) Surcharge . If, during the Term, any existing laws or regulations are changed or any new laws or regulations are enacted that require Provider to make substantial and unanticipated expenditures (whether capitalized or otherwise) with respect to the respective Terminal, Provider may, subject to the terms of this Section 11 , impose a surcharge to increase the applicable service fees ( Surcharge ), to cover Customers pro rata share of the cost of complying with these laws or regulations, based upon the percentage of Customers use of the services or facilities impacted by such new laws or regulations.
(b) Notification and Mitigation . Provider shall notify Customer of any proposed Surcharge to be imposed pursuant to Section 11(a) sufficient to cover the cost of any required capital or expense projects and any ongoing increased operating costs at the respective Terminal. Provider and Customer then shall negotiate in good faith for up to thirty (30) days to mutually determine the effect of the change in law or regulation or new law or regulation, the cost thereof, and how such cost shall be amortized at an interest rate of no more than nine percent (9%), collectively, as a Surcharge, with the understanding that Provider and Customer shall use their reasonable commercial efforts to mitigate the impact of, and comply with, these laws and regulations. Without limiting the foregoing, if expenditures requiring a Surcharge may be avoided or reduced through changes in operations, then the Parties shall negotiate in good faith to set forth the appropriate changes in a Terminal Service Order to evidence the reduction of the amount of a Surcharge while leaving the Parties in the same relative economic position they held before the laws or regulations were changed or enacted.
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(c) Less Than 15% Surcharge . In the event any Surcharge results in less than a fifteen percent (15%) increase in the service fees under the applicable Agreement in the aggregate, Customer will be assessed such Surcharge on all future invoices during the period in which such Surcharge is in effect for the applicable amortization period, and Provider shall not terminate the affected service from this Agreement.
(d) 15% or More Surcharge . In the event any Surcharge results in a fifteen percent (15%) or more increase in the service fees under the applicable Agreement in the aggregate, Provider shall notify Customer of the amount of the Surcharge required to reimburse Provider for its costs, plus carrying costs, together with reasonable supporting detail for the nature and amount of any such Surcharge.
(i) If within thirty (30) days of such notification provided in this Section 11(d) , Customer does not agree to pay such Surcharge or to reimburse Provider up front for its costs, Provider may elect to either:
a. require Customer to pay such Surcharge, up to a fifteen percent (15%) increase in the service fees under the applicable Agreement in the aggregate; or
b. terminate the service under this Agreement to which the Surcharge applies, upon notice to Customer.
(ii) Providers performance obligations under this Agreement shall be suspended or reduced during the above thirty (30) day period to the extent that Provider would be obligated to make such expenditures to continue performance during such period.
(e) Resolution of Surcharge . Following a resolution with respect to the amount and manner of payment of a Surcharge pursuant to this Section 11 , the Parties shall execute an appropriate Terminal Service Order memorializing the terms of such resolution.
(f) Payment of Surcharge . In lieu of paying the Surcharge in connection with any required capital project, Customer may, at its option, elect to pay the full cost of the substantial and unanticipated expenditures upon completion of the applicable project.
12. TANK CLEANING AND CONVERSION
(a) Reimbursement for Tank Cleaning . If any Dedicated Tanks are removed from service or cleaning of any tanks is performed by Provider at the specific request of Customer, Customer shall bear (or reimburse Provider) for all costs to clean, degas or otherwise prepare the tank(s) including, without limitation, the cost of removal, processing, transportation, disposal, of all waste and the cost of any taxes or charges Provider may be required to pay in regard to such waste. For any tanks that are dedicated to Customer for segregated storage of Customers Products as set forth in any Terminal Service Order, Customer agrees to reimburse Provider for the reasonable cost of changes necessary to return the dedicated storage tanks to Provider on termination of their dedication for segregated storage under this Agreement, in the same condition as originally received less normal wear and tear, unless otherwise mutually agreed by the Parties.
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(b) Reimbursement for Tank Conversion . Each of the Dedicated Tanks shall be used initially for its historical service; provided, however, that Customer may request that a Dedicated Tank be changed for storage of a different grade or type of Product. In such an instance, Provider shall agree to a change in such service, if the same can be accomplished in accordance with reasonable commercial standards, accepted industry and engineering guidelines, permit requirements and Applicable Law. If any such modifications, improvements, vapor recovery, cleaning, degassing, or other preparation of the tanks is performed by Provider at the request of Customer, Customer shall bear all direct costs attributable thereto, including, without limitation, the cost of removal, processing, transportation, and disposal of all waste and the cost of any taxes or mutually agreed charges Provider may be required to pay in regard to such waste (subject to subparagraph (c) below), which costs shall be set forth on the applicable Terminal Service Order. Provider may require Customer to pay all such amounts prior to commencement of any remodeling work on the Dedicated Tanks, or by mutual agreement, the Parties may agree upon an increase in the Storage Services Fee to reimburse Provider for its costs of such modifications, plus a reasonable return on capital. All of such costs associated with Dedicated Tank modifications shall be documented by a Terminal Service Order to be executed by the Parties.
(c) Responsibility for Fees . Should Provider take any of the Dedicated Tanks out of service for regulatory requirements, repair, or maintenance, Customer shall be solely responsible for any alternative storage or Product movements as required and all third-party fees associated with such movements that are not within the respective Terminal.
13. TERMINAL SERVICE ORDERS; PAYMENT
(a) Description . On the date hereof, Provider and Customer shall enter into one or more terminal service orders for the respective Terminal substantially in the form attached hereto as Exhibit 1 (each, a Terminal Service Order ). The Parties may agree to enter into additional Terminal Service Orders following the date hereof. Upon a request by Customer pursuant to this Master Agreement or as deemed necessary or appropriate by Provider in connection with the services to be delivered pursuant hereto, Provider shall generate a Terminal Service Order to set forth the specific terms and conditions for providing the applicable services described therein and the applicable fees to be charged for such services for any additional services or additional Terminals. No Terminal Service Order shall be effective until executed by both Parties to an Agreement.
(b) Invoices . Provider shall invoice Customer for services provided at the respective Terminal on a monthly basis and Customer shall pay all amounts due under this Agreement and any Terminal Service Order no later than ten (10) calendar days after Customers receipt of Providers invoices. Any past due payments owed by Customer shall accrue interest, payable on demand, at the lesser of (i) the rate of interest announced publicly by JPMorgan Chase Bank, in New York, New York, as JPMorgan Chase Banks prime rate (which Parties acknowledge and agree is announced by such bank and used by the Parties for reference purposes only and may not represent the lowest or best rate available to any of the customers of such bank or the Parties), plus four percent (4%), and (ii) the highest rate of interest (if any) permitted by Applicable Law, from the due date of the payment through the actual date of payment.
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(c) Fee Increases . Any fees of a fixed amount set forth in this Agreement and any Terminal Service Order shall be increased on July 1 of each year of the Term, commencing on July 1, 2019, by a percentage equal to the greater of zero or the positive change, if any, in the CPI-U (All Urban Consumers) for the prior calendar year, as reported by the Bureau of Labor Statistics, and rounded to the nearest one-tenth (1/10) of one percent (1%).
(d) Conflict between Agreement and Terminal Service Order . In case of any conflict between the terms of this Agreement and the terms of any Terminal Service Order, the terms of the applicable Terminal Service Order shall govern.
14. CUSTODY TRANSFER AND TITLE
(a) Custody of Pipeline Receipts and Deliveries . For volumes received into the respective Terminal by pipeline, custody of the volumes shall pass to Provider at the flange where it enters such respective Terminals receiving line. For volumes delivered by the respective Terminal into a pipeline, custody of the volumes shall pass to Customer at the flange where it exits such respective Terminals delivery line.
(b) Custody of Truck Receipts and Deliveries . For receipts and deliveries to or from trucks, custody shall pass at the flange where the hoses at Providers respective facility interconnect with the truck.
(c) Custody of Rail Receipts and Deliveries . For volumes received and delivered by rail, custody shall pass to Provider at the flange where the hoses at Providers respective facility interconnect with the rail car.
(d) In-Tank . Deliveries by book transfer shall be reflected in the books of Provider.
(e) Title Transfer . Upon re-delivery of any Product to Customers account, Customer shall become solely responsible for any loss, damage or injury to Person or property or the environment, arising out of transportation, possession or use of such Product after transfer of custody and the loss allowance provisions hereof shall apply to Product while in Providers custody. Title to all of Customers Product received in the respective Terminal shall remain with Customer at all times. Both Parties acknowledge that this Agreement represents a bailment of Products by Customer to Provider and not a consignment of Products, it being understood that Provider has no authority hereunder to sell or seek purchasers for the Products of Customer, except for Transmix as provided in Section 8 above. Customer hereby warrants that it shall, at all times, have good title to and the right to deliver, throughput, store and receive Products pursuant to the terms of this Agreement and any Terminal Service Order. Customer shall at all times be the blender of record and shall retain and be entitled to any renewable identification numbers.
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15. PRODUCT QUALITY
Product Specifications of Delivered Products . Customer warrants that all Products delivered under this Agreement and any Terminal Service Order shall not contain any deleterious substances or concentrations of any contaminants that may make it or its components commercially unacceptable in general industry application. Customer shall not deliver to the respective Terminal any Products which: (i) would in any way be injurious to the respective Terminal; (ii) would render the respective Terminal unfit for the proper storage of similar Products; (iii) may not be lawfully stored at the respective Terminal; or (iv) otherwise do not meet applicable Product specifications for such Product that are customary in the location of the respective Terminal.
16. MEASUREMENT AND VOLUME LOSSES
(a) Methods of Measurement .
(i) All quantities of Products received or delivered by or into trucks at the respective Terminal shall be measured and determined based upon the meter readings at such respective Terminal, as reflected by delivery tickets or bills of lading, or if such meters are unavailable, by applicable calibration tables, as set forth on a Terminal Service Order or pursuant to mutual agreement of the Parties.
(ii) All quantities of Products received or delivered by or into railcars at the respective Terminal shall be measured and determined based upon the meter readings at such respective Terminal, or if such meters are unavailable, by applicable calibration tables, as set forth on a Terminal Service Order or pursuant to mutual agreement of the Parties.
(iii) All quantities of Products received and delivered by pipeline at the respective Terminal shall be measured and determined based upon the meter readings of the pipeline operator, as reflected by delivery tickets, or if such meters are unavailable, by applicable calibration tables, as set forth on a Terminal Service Order or pursuant to mutual agreement of the Parties.
(iv) Deliveries by book transfer shall be reflected by entries in the books of Provider.
(v) All quantities shall be adjusted to net gallons at 60° F in accordance with ASTM D-1250 Petroleum Measurement Tables, or latest revisions thereof. Meters and temperature probes shall be calibrated according to applicable API standards. Customer shall have the right, at its sole expense, and in accordance with rack location procedure, to independently certify such calibration. Storage tank gauging shall be performed by Providers personnel. Providers gauging shall be deemed accurate unless challenged by an independent certified gauger. Customer may perform joint gauging at its sole expense with Providers personnel at the time of delivery or receipt of Product, to verify the amount involved. If Customer should request an independent gauger, such gauger must be acceptable to Provider and such gauging shall be at Customers sole expense.
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(b) Volume Losses . Provider shall have no obligation to measure volume gains and losses. In the event third-party Products are terminalled at the respective Terminal, the Parties shall mutually determine the measurement and volume loss control practices for such respective Terminal. Provider shall be responsible to Customer only for Product losses and/or shortages resulting from the negligent or wrongful acts and omissions of Provider, its agents, employees or contractors or breach of this Agreement or any applicable Terminal Service Order by Provider, its agents, employees or contractors; provided that Provider shall not be responsible to Customer for any Product losses and/or shortages for which Customer is compensated by its cargo/inventory insurance carrier. If Customer fails to maintain cargo/inventory insurance coverage, then Provider shall also not be responsible to Customer for any Product losses and/or shortages to the extent Customer would have been compensated by its insurance carrier had Customer maintained cargo/inventory insurance coverage. Except as provided for in this Section 16(b) , Customer shall be responsible for all Product losses and/or shortages it may suffer.
17. PRODUCT DELIVERIES, RECEIPTS AND WITHDRAWALS
(a) Product Deliveries . All supervised deliveries, receipts and withdrawals hereunder shall be made at such times as may be required by Customer upon prior notice and approval by Provider, all in accordance with the agreed-upon scheduling. Unsupervised deliveries, receipts and withdrawals shall be made only with Providers prior approval and in strict accordance with Providers current Operating Procedures for the respective Terminal. Customer warrants that all vehicles permitted to enter the respective Terminal on behalf of Customer shall meet all requirements and standards promulgated by applicable regulatory authority including the Department of Transportation, the Occupational Safety and Health Administration, and the EPA. Customer further warrants that it shall only send to the respective Terminal those employees, agents, and other representatives acting on behalf of and at Customers direction who have been properly instructed as to the characteristics and safe hauling methods associated with the Products to be loaded and hauled. Customer further agrees to be responsible to Provider for the performance under this Agreement by its agents and/or representatives receiving or delivering Products at the respective Terminal.
(b) Loading Devices . Customer shall withdraw from the respective Terminal only those Products that it is authorized to withdraw hereunder. Customer shall neither duplicate nor permit the duplication of any loading device (i.e., card lock access) provided hereunder. Customer shall be fully and solely responsible for all Products loaded through the use of the loading devices issued to Customer in accordance with this Agreement; provided, however, that Customer shall not have any responsibility or liability hereunder in the event that the load authorization system provided hereunder fails or malfunctions in any way, unless a credit department override is provided, which override authorizes Customer to load the Products.
(c) Legal Compliance . Both Parties shall abide by all federal, state and local statutes, laws and ordinances and all rules and regulations which are promulgated by Provider and which are either furnished to Customer or posted at the respective Terminal, with respect to the use of such respective Terminal as herein provided. It is understood and agreed by Customer that these rules and regulations may be changed, amended or modified by Provider at any time. All changes, amendments and modifications shall become binding upon Customer ten (10) days following the posting of a copy at the respective Terminal or the receipt by Customer of a copy, whichever occurs sooner.
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(d) Customer Representatives . For all purposes hereunder, Customers jobbers, distributors, Carriers, haulers and other customers designated in writing or otherwise by Customer to have loading privileges under this Agreement or having possession of any loading device furnished to Customer pursuant to this Agreement, together with their respective officers, servants and employees, shall, when they access the respective Terminal, be deemed to be representatives of Customer.
18. DELIVERIES INTO TRANSPORT TRUCKS OR RAILCARS
Prior to transporting any Products loaded into transport trucks or railcars at the respective Terminal, Provider shall make or cause to be made, the following certifications on the delivery receipt or bill of lading covering the Products received:
If required by 49 C.F.R. 172.204, this is to certify that the above-named materials are properly classified, described, packaged, marked and labeled, and are in proper condition for transportation according to the applicable regulations of the Department of Transportation. Carrier hereby certifies that the cargo tank used for this shipment is a proper container for the commodity loaded therein and complies with Department of Transportation specifications and certifies that cargo tank is properly placarded and marked to comply with regulations pertaining to hazardous materials.
Provider shall require each Carrier coming into the respective Terminal to expressly agree in writing to be bound by the provisions of a carrier access agreement with respect to withdrawals and loading of Products at such respective Terminal, to conduct its operations at the respective Terminal in a safe manner, in accordance with all Applicable Law.
19. ACCOUNTING PROVISIONS AND DOCUMENTATION
(a) Required Reports . Provider shall furnish Customer for the respective Terminal with the following reports covering services hereunder involving Customers Products:
(i) within twenty (20) days following the end of the Month, a statement showing, by Product: (A) Customers monthly aggregate deliveries into the respective Terminal; (B) Customers monthly receipts from the respective Terminal; (C) calculation of all Customers monthly storage and handling fees; (D) Customers opening inventory for the preceding Month; and (E) Customers closing inventory for the preceding Month;
(ii) a copy of any meter calibration report, to be available for inspection upon reasonable request by Customer at the respective Terminal following any calibration;
(iii) upon delivery from the respective Terminal, a hard copy bill of lading to the Carrier for each delivery; upon reasonable request only, a hard copy bill of lading shall be provided to Customers accounting group; upon each delivery from the respective Terminal, bill of lading information shall be sent electronically through a mutually agreeable system; and
(iv) transfer documents for each in-tank transfer.
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(b) Required Maintenance of Truck Loading Capabilities . Provider shall be required to maintain the capabilities to support truck load authorization technologies at the respective Terminal.
20. AUDIT AND CLAIMS PERIOD
Each Party and its duly authorized agents and/or representatives shall have reasonable access to the accounting records and other documents maintained by the other Party which relate to this Agreement and the respective Terminal, and shall have the right to audit such records at any reasonable time or times during the Term and for a period of up to three (3) years after termination of this Agreement. Claims as to shortage in quantity or defects in quality shall be made by written notice within ninety (90) days after the delivery in question or shall be deemed to have been waived.
21. LIEN WAIVERS
Provider hereby waives, relinquishes and releases any and all liens, including without limitation, any and all warehousemans liens, custodians liens, rights of retention and/or similar rights under all Applicable Laws, which Provider would or might otherwise have under or with respect to the Products throughput, stored or handled hereunder. Provider further agrees to furnish documents reasonably acceptable to Customer and its lender(s) (if applicable), and to cooperate with Customer in assuring and demonstrating that Products titled in Customers name shall not be subject to any lien on the respective Terminal or Providers Products throughput or stored there.
22. LIMITATION ON LIABILITY
(a) No Special Damages . Notwithstanding anything to the contrary contained herein, no Party shall be liable or responsible to another Party or any member of such other Partys Indemnified Group for any consequential, incidental, or punitive damages, or for loss of profits or revenues (collectively referred to as Special Damages ) incurred by such Party or any member of such Partys Indemnified Group that arise out of or relate to this Agreement, REGARDLESS OF WHETHER ANY SUCH CLAIM ARISES UNDER OR RESULTS FROM CONTRACT, NEGLIGENCE, OR STRICT LIABILITY OF THE PARTY WHOSE LIABILITY IS BEING WAIVED HEREBY; provided that the foregoing limitation is not intended and shall not affect Special Damages actually awarded to a third party or assessed by a Governmental Authority and for which a Party or any member of such Partys Indemnified Group is properly entitled to indemnification from another Party pursuant to the express provisions of this Agreement.
(b) Claims and Liability for Lost Product . Provider shall not be liable to Customer for lost or damaged Product unless Customer notifies Provider in writing within ninety (90) days of the report of any incident or the date Customer learns of any such loss or damage to the Product. Providers maximum liability to Customer for any lost or damaged Product shall be limited to (i) the lesser of (1) the replacement value of the Product at the time of the incident based upon the price as posted by Platts or similar publication for similar Product in the same locality, and if no other similar Product is in the locality, then in the state, or (2) the actual cost paid for the Product by Customer (copies of Customers invoices of cost paid must be provided), less (ii) the salvage value, if any, of the damaged Product.
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(c) No Guarantees or Warranties . Except as expressly provided in this Agreement, no Party makes any guarantees or warranties of any kind, expressed or implied. Provider specifically disclaims all implied warranties of any kind or nature, including any implied warranty of merchantability and/or any implied warranty of fitness for a particular purpose.
23. INDEMNITIES
(a) Provider Indemnities . Notwithstanding anything else contained in this Agreement or any Terminal Service Order, Provider shall release, defend, protect, indemnify, and hold harmless Customer and its affiliates and their respective officers, directors, members, managers, employees, agents, contractors, successors, and assigns (excluding any member of the Provider Group) (collectively the Customer Group ), from and against any and all demands, claims (including third-party claims), losses, costs, suits, or causes of action (including, but not limited to, any judgments, losses, liabilities, fines, penalties, expenses, interest, reasonable legal fees, costs of suit, and damages, whether in law or equity and whether in contract, tort, or otherwise) for or relating to (i) personal or bodily injury to, or death of the employees of Customer or Provider and, as applicable, their carriers, customers, representatives, and agents, (ii) loss of or damage to any property, products, material, and/or equipment belonging to Customer, Provider and, as applicable, their carriers, customers, representatives, and agents, and each of their respective affiliates, contractors, and subcontractors, (iii) loss of or damage to any other property, products, material, and/or equipment of any other description, and/or personal or bodily injury to, or death of any other Person or Persons; and with respect to clauses (i) through (iii) above, which is caused by or resulting in whole or in part from the negligent or wrongful acts or omissions of Provider in connection with the ownership or operation of the respective Terminal and the services provided hereunder, and, as applicable, their carriers, customers (other than Customer), representatives, and agents, or those of their respective employees with respect to such matters, and (iv) any losses incurred by Customer due to violations of this Agreement or any Terminal Service Order by Provider, or, as applicable, its carriers, customers (other than Customer), representatives, and agents; PROVIDED THAT PROVIDER SHALL NOT BE OBLIGATED TO RELEASE, INDEMNIFY OR HOLD HARMLESS CUSTOMER OR ANY MEMBER OF THE CUSTOMER GROUP FROM AND AGAINST ANY CLAIMS TO THE EXTENT THEY RESULT FROM THE BREACH OF CONTRACT, STRICT LIABILITY OR THE NEGLIGENT ACTS, ERRORS OR OMISSIONS OR WILLFUL MISCONDUCT OF CUSTOMER OR ANY MEMBER OF THE CUSTOMER GROUP.
(b) Customer Indemnities . Notwithstanding anything else contained in this Agreement or any Terminal Service Order, Customer shall release, defend, protect, indemnify, and hold harmless Provider and its affiliates and their respective officers, directors, members, managers, employees, agents, contractors, successors, and assigns (excluding any member of the Customer Group) (collectively the Provider Group ) from and against any and all demands, claims (including third-party claims), losses, costs, suits, or causes of action (including, but not limited to, any judgments, losses, liabilities, fines, penalties, expenses, interest, reasonable legal fees, costs of suit, and damages, whether in law or equity and whether in contract, tort, or otherwise) for or relating to (i) personal or bodily injury to, or death of the employees of Provider or Customer and, as applicable, their carriers, customers, representatives, and agents; (ii) loss of or damage to any property, products, material, and/or equipment belonging to Provider or Customer, and, as applicable, their carriers, customers, representatives, and agents, and each of their respective
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affiliates, contractors, and subcontractors; (iii) loss of or damage to any other property, products, material, and/or equipment of any other description, and/or personal or bodily injury to, or death of any other Person or Persons; and with respect to clauses (i) through (iii) above, which is caused by or resulting in whole or in part from the negligent or wrongful acts or omissions of Customer, in connection with Customers use of the respective Terminal and the services provided hereunder and Customers Products stored hereunder, and, as applicable, its carriers, customers, representatives, and agents, or those of their respective employees with respect to such matters; and (iv) any losses incurred by Provider due to violations of this Agreement or any Terminal Service Order by Customer, or, as applicable, its carriers, customers, representatives, and agents; PROVIDED THAT CUSTOMER SHALL NOT BE OBLIGATED TO RELEASE, INDEMNIFY OR HOLD HARMLESS PROVIDER OR ANY MEMBER OF THE PROVIDER GROUP FROM AND AGAINST ANY CLAIMS TO THE EXTENT THEY RESULT FROM THE BREACH OF CONTRACT, STRICT LIABILITY OR THE NEGLIGENT ACTS, ERRORS OR OMISSIONS OR WILLFUL MISCONDUCT OF PROVIDER OR ANY MEMBER OF THE PROVIDER GROUP.
(c) Affiliates . Customer and Provider shall not be considered affiliated or affiliates of one another for purposes of the indemnification provisions set forth in this Agreement.
(d) Written Claim . Neither Party shall be obligated to indemnify the other Party or any member of such Partys Indemnified Group or be liable to the other Party or any member of such Partys Indemnified Group unless a written claim for indemnity is delivered to the other Party within ninety (90) days after the date that a claim is reported or discovered, whichever is earlier.
(e) No Limitation . Except as expressly provided otherwise in this Agreement, the scope of these indemnity provisions may not be altered, restricted, limited, or changed by any other provision of this Agreement. The indemnity obligations of the Parties as set out in this Section 23 are independent of any insurance requirements as set out in Section 24 , and such indemnity obligations shall not be lessened or extinguished by reason of a Partys failure to obtain the required insurance coverages or by any defenses asserted by a Partys insurers.
(f) Survival . These indemnity obligations shall survive the termination of this Agreement as to the respective Terminal until all applicable statutes of limitation have run regarding any claims that could be made with respect to the activities contemplated by this Agreement.
(g) Third Party Indemnification . If any Party has the rights to indemnification from a third party, the indemnifying party under this Agreement shall have the right of subrogation with respect to any amounts received from such third-party indemnification claim.
24. INSURANCE
(a) Minimum Limits . With respect to each Terminal, at all times during the Term for such Terminal and for a period of two (2) years after termination of this Agreement as to the respective Terminal for any coverage maintained on a claims-made or occurrence basis, Customer and/or its Carrier (if applicable) shall maintain at their expense the below listed insurance in the amounts specified below, or self-insurance in such amounts as may be agreed
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pursuant to a Terminal Service Order. Customer shall require that Carrier and all of its contractors providing authorized drivers or authorized vehicles carry such insurance, and Customer shall be liable to Provider for their failure to do so. Such insurance shall provide coverage to Provider and such policies, other than Workers Compensation Insurance, shall include Provider as an Additional Insured. Each policy shall provide that it is primary to and not contributory with any other insurance, including any self-insured retention, maintained by Provider (which shall be excess) and each policy shall provide the full coverage required by this Agreement. All such insurance shall be written with carriers and underwriters acceptable to Provider, and eligible to do business in the state where the respective Terminal is located and having and maintaining an A.M. Best financial strength rating of no less than A- and financial size rating no less than VII; provided that Customer and/or the Carrier may procure workers compensation insurance from the state fund of the applicable state where the respective Terminal is located. All limits listed below are required MINIMUM LIMITS:
(i) Workers Compensation and Occupational Disease Insurance which fully complies with Applicable Law of the state where the respective Terminal is located, in limits not less than statutory requirements;
(ii) Employers Liability Insurance with a minimum limit of $1,000,000 for each accident, covering injury or death to any employee which may be outside the scope of the workers compensation statute of the jurisdiction in which the workers service is performed, and in the aggregate as respects occupational disease;
(iii) Commercial General Liability Insurance, including contractual liability insurance covering Carriers indemnity obligations under this Agreement, with minimum limits of $1,000,000 combined single limit per occurrence for bodily injury and property damage liability, or such higher limits as may be required by Provider or by Applicable Law from time to time. This policy shall include Broad Form Contractual Liability insurance coverage which shall specifically apply to the obligations assumed in this Agreement by Customer;
(iv) Automobile Liability Insurance covering all owned, non-owned and hired vehicles, with minimum limits of $1,000,000 combined single limit per occurrence for bodily injury and property damage liability, or such higher limit(s) as may be required by Customer or by Applicable Law from time to time. Coverage must assure compliance with Sections 29 and 30 of the Motor Carrier Act of 1980 and all applicable rules and regulations of the Federal Highway Administrations Bureau of Motor Carrier Safety and Interstate Commerce Commissioner (Form MCS 90 Endorsement). Limits of liability for this insurance must be in accordance with the financial responsibility requirement of the Motor Carrier Act, but not less than $1,000,000 per occurrence;
(v) Excess (Umbrella) Liability Insurance with limits not less than $4,000,000 per occurrence. Additional excess limits may be utilized to supplement inadequate limits in the primary policies required in items (ii), (iii), and (iv) above;
(vi) Pollution Legal Liability with limits not less than $25,000,000 per loss with an annual aggregate of $25,000,000. Coverage shall apply to bodily injury and property damage including loss of use of damaged property and property that has not been physically injured; cleanup costs, defense, including costs and expenses incurred in the investigation, defense or settlement of claim; and
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(vii) Cargo/Inventory Insurance, with a limit of no less than $1,000,000, which property insurance shall be first-party insurance to adequately cover all Products owned by Customer located at the respective Terminal.
(b) Waiver of Subrogation . All such policies must be endorsed with a Waiver of Subrogation endorsement, effectively waiving rights of recovery under subrogation or otherwise, against Provider, and shall contain where applicable, a severability of interest clause and a standard cross liability clause.
(c) Copies of Insurance Certificates or Policies . Upon execution of this Agreement and prior to the operation of any equipment by Customer, Carrier or its authorized drivers at the respective Terminal, Customer and/or Carrier will furnish to Provider, and at least annually thereafter (or at any other times upon request by Provider) during the Term (and for any coverage maintained on a claims-made basis, for two (2) years after the termination of this Agreement as to the respective Terminal), insurance certificates and/or certified copies of the original policies to evidence the insurance required herein, including on behalf of Carriers contractors providing authorized vehicles or authorized drivers. Such certificates shall be in the form of the Accord Certificate of Insurance, and reflect that they are for the benefit of Provider and shall provide that there will be no material change in or cancellation of the policies unless Provider is given at least thirty (30) days prior written notice. Certificates providing evidence of renewal of coverage shall be furnished to Provider prior to policy expiration.
(d) Responsibility for Deductibles . Customer and/or Carrier shall be solely responsible for any deductibles or self-insured retention.
25. GOVERNMENT REGULATIONS
(a) Party Certification . Each Party certifies that none of the Products covered by this Agreement or any Terminal Service Order were derived from crude petroleum, petrochemical, or gas which was produced or withdrawn from storage in violation of any federal, state or other governmental law, nor in violation of any rule, regulation or promulgated by any Governmental Authority having jurisdiction in the premises.
(b) Licenses and Permits . Provider shall maintain all necessary licenses and permits for the storage of Products at the respective Terminal.
(c) Compliance with Applicable Law . The Parties are entering into this Agreement and any Terminal Service Order in reliance upon and shall comply in all material respects with all Applicable Law which directly or indirectly affects the Products throughput hereunder, or any receipt, throughput delivery, transportation, handling or storage of Products hereunder or the ownership, operation or condition of the respective Terminal. Each Party shall be responsible for compliance with all Applicable Law associated with such Partys respective performance hereunder and the operation of such Partys facilities. In the event any action or obligation imposed upon a Party under this Agreement and any Terminal Service Order shall at any time be
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in conflict with any requirement of Applicable Law, then this Agreement and any Terminal Service Order shall immediately be modified to conform the action or obligation so adversely affected to the requirements of the Applicable Law, and all other provisions of this Agreement and any Terminal Service Order shall remain effective.
(d) Material Change in Applicable Law . If during the Term, any new Applicable Law becomes effective or any existing Applicable Law or its interpretation is materially changed, which change is not addressed by another provision of this Agreement or any Terminal Service Order and which has a material adverse economic impact upon a Party, either Party, acting in good faith, shall have the option to request renegotiation of the relevant provisions of this Agreement or a Terminal Service Order with respect to future performance. The Parties shall then meet to negotiate in good faith amendments to this Agreement or to an applicable Terminal Service Order that will conform to the new Applicable Law while preserving the Parties economic, operational, commercial and competitive arrangements in accordance with the understandings set forth herein.
26. SUSPENSION OF REFINERY OPERATIONS
(a) Suspension of Operations . In the event that Customer decides to permanently or indefinitely suspend, in full or in part, refining operations at its respective Refinery (as applicable) for a period that shall continue for at least twelve (12) consecutive Months, Customer may provide written notice to Provider of Customers intent to terminate or proportionately reduce, as applicable, that part of this Agreement relating to the affected Terminal or other facilities at the end of such twelve (12)-Month period (the Suspension Notice ). Such Suspension Notice shall be effective upon the expiration of the twelve (12)-Month period following the date such notice is sent (the Notice Period ) . If, however, Customer provides notice to Provider, more than two (2) Months prior to the expiration of the Notice Period, of its intent to resume operations at the respective Refinery(ies) or portion thereof, then the Suspension Notice shall be deemed revoked and the applicable portion of this Agreement shall continue in full force and effect as if such Suspension Notice had never been delivered.
(b) Notice Period . During the Notice Period:
(i) Provider may provide terminalling, throughput and/or storage services utilizing the affected Terminal pursuant to one or more third party agreements without the consent of Customer; and
(ii) Customers Rail Minimum Commitment and Terminal Minimum Throughput Commitment shall be reduced to the extent of third-party usage of such capacity provided that Customer shall still have access on a priority basis to the extent there is available capacity.
27. FORCE MAJEURE
(a) Definitions and Notice . As soon as possible upon the occurrence of a Force Majeure with respect to the respective Terminal, Provider shall provide Customer with written notice of the occurrence of such Force Majeure (a Force Majeure Notice ). Provider shall identify in such Force Majeure Notice the approximate length of time that Provider reasonably believes in good faith such Force Majeure shall continue (the Force Majeure Period ). For the duration of
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the Force Majeure Period, Customer shall be permitted to reduce its Terminal Minimum Throughput Commitment and/or Rail Minimum Commitment for the respective Terminal as provided in Section 28(b) . If Provider advises in any Force Majeure Notice that it reasonably believes in good faith that the Force Majeure Period shall continue for more than twelve (12) consecutive Months, then, subject to Section 28 below, at any time after Provider delivers such Force Majeure Notice, either Party may terminate that portion of this Agreement relating to the affected Terminal, but only upon delivery to the other Party of a notice (a Termination Notice ) at least twelve (12) Months prior to the expiration of the Force Majeure Period; provided, however, that such Termination Notice shall be deemed cancelled and of no effect if the Force Majeure Period ends prior to the expiration of such twelve (12)-Month period. For the avoidance of doubt, neither Party may exercise its right under this Section 27(a) to terminate this Agreement as a result of a Force Majeure if the affected Terminal has been restored to working order since the applicable Force Majeure, including pursuant to a Restoration.
(b) Revocation of Customer Termination Notice . Notwithstanding the foregoing, if Customer delivers a Termination Notice to Provider (the Customer Termination Notice ) and, within thirty (30) days after receiving such Customer Termination Notice, Provider notifies Customer that Provider reasonably believes in good faith that it shall be capable of fully performing its obligations under this Agreement within a reasonable period of time and Customer mutually agrees (which agreement shall not be unreasonably withheld), then the Customer Termination Notice shall be deemed revoked and the applicable portion of this Agreement shall continue in full force and effect as if such Customer Termination Notice had never been given.
28. CAPABILITIES OF FACILITIES
(a) Service Interruption . Subject to Force Majeure and interruptions for routine repair and maintenance, consistent with customary terminal industry standards, Provider shall use reasonable commercial efforts to minimize the interruption of service at the respective Terminal or any portion thereof. Provider shall promptly inform Customer operational personnel of any anticipated partial or complete interruption of service at the respective Terminal, including relevant information about the nature, extent, cause and expected duration of the interruption and the actions Provider is taking to resume full operations; provided, that Provider shall not have any liability for any failure to notify, or delay in notifying, Customer of any such matters except to the extent Customer has been materially prejudiced or damaged by such failure or delay.
(b) Restoration of Capacity . Subject to Force Majeure and interruptions for routine repair and maintenance, consistent with customary terminal industry standards, Provider shall, where applicable, maintain the respective Terminal in a condition and with a capacity sufficient to throughput a volume of Customers Products at least equal to the Terminal Reserved Capacity for the respective Terminal. Where applicable, Providers obligations may be temporarily suspended during the occurrence of, and for the entire duration of, a Force Majeure or any interruption of service that prevents Provider from terminalling the Terminal Reserved Capacity and/or maintaining the Rail Reserved Capacity for the respective Terminal. To the extent Provider is prevented from terminalling volumes equal to the Terminal Reserved Capacity for the respective Terminal and/or loading and unloading rail car volumes equal to the Rail Reserved Capacity for reasons of Force Majeure or other interruption of service, then, as applicable, Customers obligation to throughput the Terminal Minimum Throughput Commitment or Rail Minimum
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Capacity and pay any Rail Shortfall Payments and/or Terminalling Shortfall Payments, as applicable, shall be reduced proportionately. Where applicable, at such time as Provider is capable of terminalling volumes equal to the Terminal Reserved Capacity, Customers obligation to throughput the full Terminal Minimum Throughput Commitment for the respective Terminal shall be restored. Where applicable, at such time as Provider is capable of loading and unloading railcar volumes equal to the Rail Minimum Capacity, Customers obligation to meet the full Rail Minimum Commitment shall be restored. If for any reason, including, without limitation, a Force Majeure event, the throughput capacity of the respective Terminal should fall below the Terminal Reserved Capacity and/or the Rail Reserved Capacity, as applicable, then within a reasonable period of time after the commencement of such reduction, Provider shall make repairs to the respective Terminal to restore the capacity of such respective Terminal to that required for throughput of the Terminal Reserved Capacity and/or the Rail Reserved Capacity ( Restoration ). Except as provided below in Section 28(c) , all of such Restoration shall be at Providers cost and expense, unless the damage creating the need for such repairs was caused by the negligence or willful misconduct of Customer, its employees, agents or customers or the failure of Customers Products to meet the specifications as provided for in Section 15 .
(c) Capacity Resolution . In the event of the failure of Provider to maintain the respective Terminal in a condition and with a capacity sufficient to throughput a volume of Customers Products equal to the Terminal Reserved Capacity and/or the Rail Reserved Capacity, as applicable, then either Party shall have the right to call a meeting between executives of both Parties by providing at least two (2) Business Days advance written notice. Any such meeting shall be held at a mutually agreeable location and will be attended by executives of both Parties each having sufficient authority to commit his or her respective Party to a Capacity Resolution (hereinafter defined). At the meeting, the Parties will negotiate in good faith with the objective of reaching a joint resolution for the Restoration of capacity at the respective Terminal which will, among other things, specify steps to be taken by Provider to fully accomplish Restoration and the deadlines by which the Restoration must be completed (the Capacity Resolution ). Without limiting the generality of the foregoing, the Capacity Resolution shall set forth an agreed upon time schedule for the Restoration activities. Such time schedule shall be reasonable under the circumstances, consistent with customary terminal industry standards and shall take into consideration Providers economic considerations relating to costs of the repairs and Customers requirements concerning its refining and marketing operations. Provider shall use commercially reasonable efforts to continue to provide storage and throughput and, if applicable, railcar loading and unloading of Customers Products at the affected Terminal, to the extent the affected Terminal has capability of doing so, during the period before Restoration is completed. In the event that Customers economic considerations justify incurring additional costs to restore the affected Terminal in a more expedited manner than the time schedule determined in accordance with the preceding sentence, Customer may require Provider to expedite the Restoration to the extent reasonably possible, subject to Customers payment, in advance, of the estimated incremental costs to be incurred as a result of the expedited time schedule. In the event the Parties agree to an expedited Restoration plan in which Customer agrees to fund a portion of the Restoration cost, then neither Party shall have the right to terminate this Agreement as to the affected Terminal in connection with a Force Majeure, so long as such Restoration is completed with due diligence, and Customer shall pay its portion of the Restoration costs to Provider in advance based on an estimate based on reasonable engineering standards promulgated by the Association for Facilities Engineering. Upon completion, Customer shall pay the difference between the actual portion of
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Restoration costs to be paid by Customer pursuant to this Section 28(c) and the estimated amount paid under the preceding sentence within thirty (30) days after receipt of Providers invoice therefor, or, if appropriate, Provider shall pay Customer the excess of the estimate paid by Customer over Providers actual costs as previously described within thirty (30) days after completion of the Restoration.
(d) Restoration . If at any time after the occurrence of (x) a Partnership Change of Control or (y) a sale of the Refinery (as applicable), Provider either (i) refuses or fails to meet with Customer within the period set forth in Section 28(c) , (ii) fails to agree to perform a Capacity Resolution in accordance with the standards set forth in Section 28(c) , or (iii) fails to perform its obligations in compliance with the terms of a Capacity Resolution, Customer may, as its sole remedy for any breach by Provider of any of its obligations under Section 28(c) , require Provider to complete a Restoration of the affected Terminal, subject to and to the extent permitted under the terms, conditions and/or restrictions of applicable leases, permits and/or Applicable Law. Any such Restoration required under this Section 28(d) shall be completed by Provider at Customers cost. Provider shall use commercially reasonable efforts to continue to provide storage and throughput and, if applicable, railcar loading and unloading of Customers Products at the affected Terminal, during the period while such Restoration is being completed. Any work performed by Provider pursuant to this Section 28(d) shall be performed and completed in a good and workmanlike manner consistent with applicable industry standards and in accordance with all Applicable Law. Additionally, during such period after the occurrence of (x) a Partnership Change of Control or (y) a sale of the Refinery (as applicable), Customer may exercise any remedies available to it under this Agreement (other than termination), including the right to immediately seek temporary and permanent injunctive relief for specific performance by Provider of the applicable provisions of this Agreement, including, without limitation, the obligation to make Restorations as described herein.
(e) Storage Tank Heels . All Tank Heels shall be allocated among storage users on a pro rata basis. Tank Heels cannot be withdrawn from any tank without prior approval of Provider. For storage tanks and capacities identified on a Terminal Service Order as dedicated to and used exclusively for the storage and throughput of Customers Product, Customer shall be responsible for providing and maintaining all Tank Heels required for operation of such tanks.
(f) Operating Procedures . Customer hereby agrees to strictly abide by any and all procedures established by Provider, if any (the Operating Procedures ), relating to the operation and use of the respective Terminal that generally apply to receipt, delivery, storage, and movement of Products at the respective Terminal. Provider shall provide Customer with a current copy of its Operating Procedures, if any, and shall provide Customer with thirty (30) days prior written notice of any changes to the Operating Procedures, unless a shorter implementation of such revised Operating Procedures is required by Applicable Law or emergency conditions. Customer shall have the right to approve any material revisions to the Operating Procedures, which shall not be unreasonably withheld, prior to their becoming effective, unless otherwise required under Applicable Law or emergency conditions, and the material revisions shall be reflected in a Terminal Service Order between the Parties. Provider shall carry out the handling of the Products at the respective Terminal in accordance with any Operating Procedures.
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29. TERMINATION
(a) Default . A Party shall be in default under the applicable Agreement if:
(i) the Party breaches any provision of this Agreement or a Terminal Service Order, which breach has a material adverse effect on the other Party, and such breach is not excused by Force Majeure or cured within fifteen (15) Business Days after notice thereof (which notice shall describe such breach in reasonable detail) is received by such Party (unless such failure is not commercially reasonably capable of being cured in such fifteen (15) Business Day period in which case such Party shall have commenced remedial action to cure such breach and shall continue to diligently and timely pursue the completion of such remedial action after such notice); or
(ii) the Party (A) files a petition or otherwise commences, authorizes or acquiesces in the commencement of a proceeding or cause of action under any bankruptcy, insolvency, reorganization or similar Applicable Law, or has any such petition filed or commenced against it, (B) makes an assignment or any general arrangement for the benefit of creditors, (C) otherwise becomes bankrupt or insolvent (however evidenced) or (D) has a liquidator, administrator, receiver, trustee, conservator or similar official appointed with respect to it or any substantial portion of its property or assets.
(b) Rights upon Default . If either of the Parties is in default as described above, then (A) if Customer is in default, Provider may or (B) if Provider is in default, Customer may: (1) terminate this Agreement as to the affected Terminal upon notice to the defaulting Party; (2) withhold any payments due to the defaulting Party under this Agreement as to the affected Terminal; and/or (3) pursue any other remedy at law or in equity.
(c) Obligation to Cure Breach . If a Party breaches any provision of this Agreement or a Terminal Service Order, which breach does not have a material adverse effect on the other Party, the breaching Party shall still have the obligation to cure such breach.
(d) Product Removal . Customer shall, upon expiration or termination of this Agreement, promptly remove all of its Products including any downgraded and interface Product and Transmix from the respective Terminal, and Provider shall remove the remaining Tank Heels and tank bottoms and deliver them to Customer or Customers designee, within thirty (30) days of such termination or expiration. In the event all of the Product is not removed within such thirty (30) day period, Customer shall be assessed a storage fee to all Products held in storage more than thirty (30) days beyond the termination or expiration of this Agreement until such time Customers entire Product is removed from the respective Terminal; provided however, that Customer shall not be assessed any storage fees associated with the removal of Product if Customers ability to remove such Product is delayed or hindered by Provider, its agents or contractors for any reason. Where applicable, Customer shall pay the Terminalling Service Fee for all Products delivered from the respective Terminal after such Termination, together with the Rail Loading Services Fee for all volumes loaded onto railcars after termination and any fees for Ancillary Services applicable to such deliveries, at the rates established under the then applicable Terminal Service Order.
(e) Equipment Removal . Customer shall, upon expiration or termination of this Agreement, promptly remove any and all of its owned equipment, and restore the respective Terminal to its condition prior to the installation of such equipment.
27
(f) Separate Agreements . For the avoidance of doubt, this Section 29 shall apply to each Agreement individually, and default under (or termination of) one Agreement does not automatically cause default under (or termination of) any other Agreements or this Master Agreement.
30. RIGHT TO ENTER INTO A NEW TERMINALLING AGREEMENT
(a) New Terminalling Services Agreement . Upon termination of this Agreement or a Terminal Service Order as to the respective Terminal for reasons other than (x) a default by Customer and (y) any other termination of this Agreement initiated by Customer except upon a default by Provider, Customer shall have the right to require Provider to enter into a new terminalling services agreement with Customer that (i) is consistent with the terms set forth in this Agreement, (ii) relates to the respective Terminal, and (iii) has commercial terms that are, in the aggregate, equal to or more favorable to Provider than fair market value terms as would be agreed by similarly-situated parties negotiating at arms length; provided, however; that the term of any such new terminalling services agreement shall not extend beyond August 6, 2038.
(b) Terminalling Right of First Refusal . In the event that Provider proposes to enter into a terminalling services agreement with a third party for the respective Terminal within two (2) years after the termination of this Agreement for reasons other than (x) by default by Customer and (y) any other termination of this Agreement initiated by Customer except upon a default by Provider, Provider shall give Customer ninety (90) days prior written notice of any proposed new terminalling services agreement with a third party, including (i) details of all of the material terms and conditions thereof and (ii) a thirty (30)-day period (beginning upon Customers receipt of such written notice) (the Terminalling First Offer Period ) in which Customer may make a good faith offer to enter into a new terminalling agreement with Provider (the Terminalling Right of First Refusal ). If Customer makes an offer on terms no less favorable to Provider than the third-party offer with respect to such terminalling services agreement during the Terminalling First Offer Period, then Provider shall be obligated to enter into a terminalling services agreement with Customer on the terms set forth in Customers offer to Provider. If Customer does not exercise its Terminalling Right of First Refusal in the manner set forth above, Provider may, for the next ninety (90) days, proceed with the negotiation of the third-party terminalling services agreement. If no third-party agreement is consummated during such ninety-day period, the terms and conditions of this Section 30(b) shall again become effective.
31. ASSIGNMENT
(a) Customer Assignment to Third Party . Customer shall not assign any of its rights or obligations as to the respective Terminal hereunder or under a Terminal Service Order without Providers prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed; provided, however; that Customer may assign this Agreement as to the respective Terminal, without Providers consent, in connection with a sale by Customer of the respective Refinery (as applicable) so long as the transferee: (i) agrees to assume all of Customers obligations under this Agreement as to such respective Terminal; and (ii) is financially and operationally capable of fulfilling the terms of this Agreement as to such respective Terminal, which determination shall be made by Customer in its reasonable judgment.
28
(b) Provider Assignment to Third Party . Provider shall not assign any of its rights or obligations under this Agreement as to the respective Terminal without Customers prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed; provided, however, that (i) Provider may assign this Agreement as to the respective Terminal without Customers consent in connection with a sale by Provider of such respective Terminal so long as the transferee: (A) agrees to assume all of Providers obligations under this Agreement as to such respective Terminal; (B) is financially and operationally capable of fulfilling the terms of this Agreement as to such respective Terminal, which determination shall be made by Provider in its reasonable judgment; and (C) is not a competitor of Customer; and (ii) Provider shall be permitted to make a collateral assignment of this Agreement as to such respective Terminal solely to secure working capital financing for Provider.
(c) Notification of Assignment . Any assignment that is not undertaken in accordance with the provisions set forth above shall be null and void ab initio . A Party making any assignment shall promptly notify the other Party of such assignment, regardless of whether consent is required. This Agreement and any Terminal Service Orders shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns.
(d) Subcontracting . As applicable at the respective Terminal, Customer may not allow a Person to use any of its reserved capacity or transfer title of the Products to a Person while the Products are in such respective Terminal, without the prior written consent of Provider, which consent shall not be unreasonably conditioned, delayed or withheld. If Provider so consents, Customer shall continue to be liable for all of its obligations hereunder, including all fees pursuant to this Agreement and any related Terminal Service Orders for the remainder of the Term.
(e) Partnership Change of Control . Customers obligations hereunder shall not terminate in connection with a Partnership Change of Control; provided, however, that in the case of any Partnership Change of Control, Customer shall have the option to extend the Term of this Agreement as provided in Section 2(b) . Provider shall provide Customer with notice of any Partnership Change of Control at least sixty (60) days prior to the effective date thereof.
32. NOTICE
All notices, requests, demands, and other communications hereunder will be in writing and will be deemed to have been duly given: (a) if by transmission by hand delivery, when delivered; (b) if mailed via the official governmental mail system, five (5) Business Days after mailing, provided said notice is sent first class, postage pre-paid, via certified or registered mail, with a return receipt requested; (c) if mailed by an internationally recognized overnight express mail service such as Federal Express, UPS, or DHL Worldwide, one (1) Business Day after deposit therewith prepaid; or (d) if by e-mail, one Business Day after delivery with receipt confirmed. All notices will be addressed to the Parties for the respective Terminal at the respective addresses identified on Schedule I , or to such other address or to such other Person as a Party will have last designated by notice to the other Party identified on Schedule I for the respective Terminal.
29
33. CONFIDENTIAL INFORMATION
(a) Confidential Information and Exceptions Thereto . Each Party shall use reasonable efforts to retain the other Parties Confidential Information in confidence and not disclose the same to any third party nor use the same, except as authorized by the disclosing Party in writing or as expressly permitted in this Section 33 . Each Party further agrees to take the same care with the other Partys Confidential Information as it does with its own, but in no event less than a reasonable degree of care. Excepted from these obligations of confidence and non-use is that information which:
(i) is available, or becomes available, to the general public without fault of the receiving Party;
(ii) was in the possession of the receiving Party on a non-confidential basis prior to receipt of the same from the disclosing Party (it being understood, for the avoidance of doubt, that this exception shall not apply to information of Provider that was in the possession of Customer or any of its affiliates as a result of their ownership or operation of the respective Terminal prior to the Commencement Date);
(iii) is obtained by the receiving Party without an obligation of confidence from a third party who is rightfully in possession of such information and, to the receiving Partys knowledge, is under no obligation of confidentiality to the disclosing Party; or
(iv) is independently developed by the receiving Party without reference to or use of the disclosing Partys Confidential Information.
For the purpose of this Section 33 , a specific item of Confidential Information shall not be deemed to be within the foregoing exceptions merely because it is embraced by, or underlies, more general information in the public domain or in the possession of the receiving Party.
(b) Required Disclosure . Notwithstanding Section 33(a) above, if the receiving Party becomes legally compelled to disclose the Confidential Information by a court, Governmental Authority or Applicable Law, or is required to disclose by the listing standards of any applicable securities exchange, any of the disclosing Partys Confidential Information, the receiving Party shall promptly advise the disclosing Party of such requirement to disclose Confidential Information as soon as the receiving Party becomes aware that such a requirement to disclose might become effective, in order that, where possible, the disclosing Party may seek a protective order or such other remedy as the disclosing Party may consider appropriate in the circumstances. The receiving Party shall disclose only that portion of the disclosing Partys Confidential Information that it is required to disclose and shall cooperate with the disclosing Party in allowing the disclosing Party to obtain such protective order or other relief.
(c) Return of Confidential Information . Upon written request by the disclosing Party, all of the disclosing Partys Confidential Information in whatever form shall be returned to the disclosing Party upon termination of this Agreement with respect to the respective Terminal or destroyed with destruction certified by the receiving Party, without the receiving Party retaining copies thereof except that one copy of all such Confidential Information may be retained by a Partys legal department solely to the extent that such Party is required to keep a copy of such Confidential Information pursuant to Applicable Law, and the receiving Party shall be entitled to retain any Confidential Information in the electronic form or stored on automatic computer back-up
30
archiving systems during the period such backup or archived materials are retained under such Partys customary procedures and policies; provided, however, that any Confidential Information retained by the receiving Party shall be maintained subject to confidentiality pursuant to the terms of this Section 33 , and such archived or back-up Confidential Information shall not be accessed except as required by Applicable Law.
(d) Receiving Party Personnel . The receiving Party will limit access to the Confidential Information of the disclosing Party to those of its employees, attorneys and contractors that have a need to know such information in order for the receiving Party to exercise or perform its rights and obligations under this Agreement (the Receiving Party Personnel ). The Receiving Party Personnel who have access to any Confidential Information of the disclosing Party will be made aware of the confidentiality provision of this Agreement, and will be required to abide by the terms thereof. Any third party contractors that are given access to Confidential Information of a disclosing Party pursuant to the terms hereof shall be required to sign a written agreement pursuant to which such Receiving Party Personnel agree to be bound by the provisions of this Agreement, which written agreement will expressly state that it is enforceable against such Receiving Party Personnel by the disclosing Party.
(e) Survival . The obligation of confidentiality under this Section 33 shall survive the termination of this Agreement with respect to the respective Terminal for a period of two (2) years.
34. MISCELLANEOUS
(a) Amendment or Modification . This Agreement and any Terminal Service Orders may be amended or modified only by a written instrument executed by the Parties. Any of the terms and conditions of this Agreement or a Terminal Service Order may be waived in writing at any time by the Party entitled to the benefits thereof. No waiver of any of the terms and conditions of this Agreement, a Terminal Service Order or any breach thereof, will be effective unless in writing signed by a duly authorized individual on behalf of the Party against which the waiver is sought to be enforced. No waiver of any term or condition or of any breach of this Agreement or a Terminal Service Order will be deemed or will constitute a waiver of any other term or condition or of any later breach (whether or not similar), nor will such waiver constitute a continuing waiver unless otherwise expressly provided. Notwithstanding the foregoing or anything herein to the contrary, in the event of termination of this Agreement as to the respective Terminal in accordance with this Agreement, Schedule I shall be amended to remove such respective Terminal and the applicable Parties with respect to such respective Terminal from the force and effect of this Agreement; provided, however, that this Master Agreement shall remain in full force and effect with respect to the Terminals and applicable Parties with respect to such Terminals remaining on Schedule I .
(b) Integration . This Agreement, together with the Schedules hereto and Terminal Service Orders pursuant hereto, constitutes the entire agreement between the Parties pertaining to the subject matter hereof and supersedes all prior agreements and understandings of the Parties in connection therewith.
31
(c) Construction and Interpretation . In interpreting this Agreement, unless the context expressly requires otherwise, all of the following apply to the interpretation of this Agreement:
(i) Preparation of this Agreement has been a joint effort of the Parties and the resulting Agreement against one of the Parties as the drafting Party.
(ii) Plural and singular words each include the other.
(iii) Masculine, feminine and neutral genders each include the others.
(iv) The word or is not exclusive and includes and/or.
(v) The words includes and including are not limiting.
(vi) References to the Parties include their respective successors and permitted assignees.
(vii) The headings in this Agreement are included for convenience and do not affect the construction or interpretation of any provision of, or the rights or obligations of a Party under, this Agreement.
(d) Applicable Law; Forum, Venue and Jurisdiction . This Agreement and any Terminal Service Orders shall be governed by the laws of the State of Texas without giving effect to its conflict of laws principles. Each Party hereby irrevocably submits to the exclusive jurisdiction of any federal court of competent jurisdiction situated in the United States District Court for the Western District of Texas, San Antonio Division, or if such federal court declines to exercise or does not have jurisdiction, in the district court of Bexar County, Texas. The Parties expressly and irrevocably submit to the jurisdiction of said Courts and irrevocably waive any objection which they may now or hereafter have to the laying of venue of any action, suit or proceeding arising out of or relating to this Agreement or any Terminal Service Order brought in such Courts, irrevocably waive any claim that any such action, suit or proceeding brought in any such Court has been brought in an inconvenient forum and further irrevocably waive the right to object, with respect to such claim, action, suit or proceeding brought in any such Court, that such Court does not have jurisdiction over such Party. The Parties hereby irrevocably consent to the service of process by registered mail, postage prepaid, or by personal service within or without the State of Texas. Nothing contained herein shall affect the right to serve process in any manner permitted by law.
(e) Counterparts . This Agreement and any Terminal Service Order hereunder may be executed in one or more counterparts (including by facsimile or portable document format (.pdf)) for the convenience of the Parties hereto, each of which counterparts will be deemed an original, but all of which counterparts together will constitute one and the same agreement.
(f) Severability . Whenever possible, each provision of this Agreement and any Terminal Service Order will be interpreted in such manner as to be valid and effective under Applicable Law, but if any provision of this Agreement, a Terminal Service Order or the application of any such provision to any Person or circumstance will be held invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, such invalidity, illegality or unenforceability will not affect any other provision hereof, and the Parties will negotiate in good faith with a view to substitute for such provision a suitable and equitable solution in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid, illegal or unenforceable provision.
32
(g) No Third Party Rights . Except as specifically provided in Section 23 herein, it is expressly understood that the provisions of this Agreement or any Terminal Service Order do not impart enforceable rights in anyone who is not a Party or successor or permitted assignee of a Party.
(h) Jury Waiver . EACH PARTY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY PROCEEDINGS RELATING TO THIS AGREEMENT OR ANY PERFORMANCE OR FAILURE TO PERFORM OF ANY OBLIGATION HEREUNDER.
[Signature Pages Follow]
33
IN WITNESS WHEREOF , the Parties hereto have duly executed this Agreement as of the date first written above.
As to the Mandan Terminal:
Customer:
Tesoro Refining & Marketing Company LLC
By: /s/ Stephan E. Tompsett Name: Stephan E. Tompsett Title: Vice President and Treasurer |
Provider:
Tesoro Logistics Operations LLC
By: /s/ Steven M. Sterin Name: Steven M. Sterin Its: President and Chief Financial Officer |
Signature Page
Master Terminalling Services Agreement
IN WITNESS WHEREOF , the Parties hereto have duly executed this Agreement as of the date first written above.
As to the Salt Lake City Terminal:
Customer:
Tesoro Refining & Marketing Company LLC
By: /s/ Stephan E. Tompsett Name: Stephan E. Tompsett Title: Vice President and Treasurer |
Provider:
Tesoro Logistics Operations LLC
By: /s/ Steven M. Sterin Name: Steven M. Sterin Its: President and Chief Financial Officer |
Signature Page
Master Terminalling Services Agreement
IN WITNESS WHEREOF , the Parties hereto have duly executed this Agreement as of the date first written above.
As to the LAR Terminal:
Customer:
Tesoro Refining & Marketing Company LLC
By: /s/ Stephan E. Tompsett Name: Stephan E. Tompsett Title: Vice President and Treasurer |
Provider:
Tesoro Logistics Operations LLC
By: /s/ Steven M. Sterin Name: Steven M. Sterin Its: President and Chief Financial Officer |
Signature Page
Master Terminalling Services Agreement
IN WITNESS WHEREOF , the Parties hereto have duly executed this Agreement as of the date first written above.
As to the Fryburg Terminal:
Customer:
Tesoro Refining & Marketing Company LLC
By: /s/ Stephan E. Tompsett Name: Stephan E. Tompsett Title: Vice President and Treasurer |
Provider:
Tesoro Great Plains Gathering & Marketing LLC
By: /s/ Steven M. Sterin Name: Steven M. Sterin Its: President and Chief Financial Officer |
Signature Page
Master Terminalling Services Agreement
IN WITNESS WHEREOF , the Parties hereto have duly executed this Agreement as of the date first written above.
As to the Wingate Terminal:
Customer:
Western Refining Southwest, Inc.
By: /s/ Stephan E. Tompsett Name: Stephan E. Tompsett Title: Vice President and Treasurer |
Provider:
Western Refining Terminals, LLC
By: /s/ Steven M. Sterin Name: Steven M. Sterin Its: President and Chief Financial Officer |
Signature Page
Master Terminalling Services Agreement
IN WITNESS WHEREOF , the Parties hereto have duly executed this Agreement as of the date first written above.
As to the JAL NGL Terminal:
Customer:
Western Refining Company, L.P., by Western Refining GP, LLC, its general partner
By: /s/ Stephan E. Tompsett Name: Stephan E. Tompsett Title: Vice President and Treasurer
Tesoro Refining & Marketing Company LLC
By: /s/ Stephan E. Tompsett Name: Stephan E. Tompsett Title: Vice President and Treasurer |
Provider:
Western Refining Terminals, LLC
By: /s/ Steven M. Sterin Name: Steven M. Sterin Its: President and Chief Financial Officer |
Signature Page
Master Terminalling Services Agreement
IN WITNESS WHEREOF , the Parties hereto have duly executed this Agreement as of the date first written above.
As to the Clearbrook Terminal:
Customer:
St. Paul Park Refining Co. LLC
By: /s/ Stephan E. Tompsett Name: Stephan E. Tompsett Title: Vice President and Treasurer |
Provider:
Tesoro Logistics Operations LLC
By: /s/ Steven M. Sterin Name: Steven M. Sterin Its: President and Chief Financial Officer |
Signature Page
Master Terminalling Services Agreement
SCHEDULE I
Parties to Agreement per respective Terminal
Terminal |
Associated Refinery |
Customer |
Provider |
|||
Mandan | Mandan Refinery | Tesoro Refining & Marketing Company LLC | Tesoro Logistics Operations LLC | |||
Salt Lake City | Salt Lake City Refinery | Tesoro Refining & Marketing Company LLC | Tesoro Logistics Operations LLC | |||
LAR Carson | Los Angeles Refinery (Carson) | Tesoro Refining & Marketing Company LLC | Tesoro Logistics Operations LLC | |||
LAR Wilmington | Los Angeles Refinery (Wilmington) | Tesoro Refining & Marketing Company LLC | Tesoro Logistics Operations LLC | |||
Fryburg | N/A | Tesoro Refining & Marketing Company LLC | Tesoro Great Plains Gathering & Marketing LLC | |||
Wingate | N/A | Western Refining Southwest, Inc. | Western Refining Terminals, LLC | |||
JAL NGL | N/A |
Western Refining Company, L.P.; Tesoro Refining & Marketing Company LLC |
Western Refining Terminals, LLC | |||
Clearbrook | N/A | St. Paul Park Refining Co. LLC | Tesoro Logistics Operations LLC |
Schedule I
Terminalling Services Agreement
Party Notices Pursuant to Section 32
Terminal |
Party |
Notice Addresses |
||
Mandan | Tesoro Refining & Marketing LLC |
Tesoro Refining & Marketing Company LLC 19100 Ridgewood Parkway San Antonio, Texas 78259 Attention: General Counsel |
||
Mandan | Tesoro Logistics Operations LLC |
Tesoro Logistics Operations LLC 19100 Ridgewood Parkway San Antonio, Texas 78259
For legal notices: Attention: General Counsel
For all other notices and communications: Attention: Don J. Sorensen, Senior Vice President, Logistics phone: (210) 626-6195 email: Don.J.Sorensen@andeavor.com |
||
Salt Lake City | Tesoro Refining & Marketing Company LLC |
Tesoro Refining & Marketing Company LLC 19100 Ridgewood Parkway San Antonio, Texas 78259 Attention: General Counsel |
||
Salt Lake City | Tesoro Logistics Operations LLC |
Tesoro Logistics Operations LLC 19100 Ridgewood Parkway San Antonio, Texas 78259
For legal notices: Attention: General Counsel
For all other notices and communications: Attention: Don J. Sorensen, Senior Vice President, Logistics phone: (210) 626-6195 email: Don.J.Sorensen@andeavor.com |
||
LAR | Tesoro Refining & Marketing Company LLC |
Tesoro Refining & Marketing Company LLC 19100 Ridgewood Parkway San Antonio, Texas 78259 Attention: General Counsel |
Schedule I
Terminalling Services Agreement
LAR | Tesoro Logistics Operations LLC |
Tesoro Logistics Operations LLC 19100 Ridgewood Parkway San Antonio, Texas 78259
For legal notices: Attention: General Counsel
For all other notices and communications: Attention: Don J. Sorensen, Senior Vice President, Logistics phone: (210) 626-6195 email: Don.J.Sorensen@andeavor.com |
||
Fryburg | Tesoro Refining & Marketing Company LLC |
Tesoro Refining & Marketing Company LLC 19100 Ridgewood Parkway San Antonio, Texas 78259 Attention: General Counsel |
||
Fryburg | Tesoro Great Plains Gathering & Marketing LLC |
Tesoro Great Plains Gathering & Marketing LLC 19100 Ridgewood Parkway San Antonio, Texas 78259
For legal notices: Attention: General Counsel
For all other notices and communications: Attention: Don J. Sorensen, Senior Vice President, Logistics phone: (210) 626-6195 email: Don.J.Sorensen@andeavor.com |
||
Wingate | Western Refining Southwest, Inc. |
Western Refining Southwest, Inc. 19100 Ridgewood Parkway San Antonio, Texas 78259 Attention: General Counsel |
||
Wingate | Western Refining Terminals, LLC |
Western Refining Terminals, LLC
San Antonio, Texas 78259
For legal notices: Attention: General Counsel
For all other notices and communications: Attention: Don J. Sorensen, Senior Vice President, Logistics phone: (210) 626-6195 email: Don.J.Sorensen@andeavor.com |
Schedule I
Master Terminalling Services Agreement
JAL NGL | Western Refining Company, L.P. |
Western Refining Company, L.P. 19100 Ridgewood Parkway San Antonio, Texas 78259 Attention: General Counsel |
||
JAL NGL | Tesoro Refining & Marketing Company LLC |
Tesoro Refining & Marketing Company LLC 19100 Ridgewood Parkway San Antonio, Texas 78259 Attention: General Counsel |
||
JAL NGL | Western Refining Terminals, LLC |
Western Refining Terminals, LLC 19100 Ridgewood Parkway San Antonio, Texas 78259
For legal notices: Attention: General Counsel
For all other notices and communications: Attention: Don J. Sorensen, Senior Vice President, Logistics phone: (210) 626-6195 email: Don.J.Sorensen@andeavor.com |
||
Clearbrook | St. Paul Park Refining Co. LLC |
St. Paul Park Refining Co. LLC 19100 Ridgewood Parkway San Antonio, Texas 78259 Attention: General Counsel |
||
Clearbrook | Tesoro Logistics Operations LLC |
Tesoro Logistics Operations LLC 19100 Ridgewood Parkway San Antonio, Texas 78259
For legal notices: Attention: General Counsel
For all other notices and communications: Attention: Don J. Sorensen, Senior Vice President, Logistics phone: (210) 626-6195 email: Don.J.Sorensen@andeavor.com |
Schedule I
Master Terminalling Services Agreement
SCHEDULE A
TERMINAL MINIMUM THROUGHPUT COMMITMENT (LPG/NGL TRUCK RACK)
AND TERMINAL RESERVED CAPACITY
Terminal |
Minimum Throughput
Commitment (bpm) |
Reserved Capacity
(bpm) |
||||||
Mandan LPG Terminal |
56,575 | 56,575 | ||||||
Salt Lake City LPG Terminal |
41,063 | 41,063 | ||||||
LAR LPG Terminal - Carson |
39,542 | 39,542 | ||||||
LAR LPG Terminal - Wilmington |
60,833 | 60,833 | ||||||
Fryburg Terminal |
N/A | N/A | ||||||
Wingate LPG Terminal |
N/A | N/A | ||||||
JAL NGL Terminal |
N/A | N/A |
Schedule A
Master Terminalling Services Agreement
SCHEDULE B
DEDICATED TANKS
LOCATION |
TANK NUMBER |
RESERVED CAPACITY (in Barrels) |
||
Mandan |
FB-701 | 96,000 | ||
Mandan |
FB-702 | 96,000 | ||
Mandan |
FB-703 | 96,000 | ||
Mandan |
FB-705 | 96,000 | ||
Mandan |
FB-706 | 96,000 | ||
Mandan |
FB-707 | 32,900 | ||
Mandan |
FB-708 | 30,000 | ||
Mandan |
FB-709 | 30,000 | ||
Mandan |
FB-710 | 30,000 | ||
Mandan |
FB-711 | 30,000 | ||
Mandan |
FB-712 | 30,000 | ||
Mandan |
FB-714 | 30,000 | ||
Mandan |
FB-715 | 20,000 | ||
Mandan |
FB-716 | 15,000 | ||
Mandan |
FB-717 | 43,000 | ||
Mandan |
FB-718 | 30,000 | ||
Mandan |
FB-719 | 30,000 | ||
Mandan |
FB-720 | 30,000 (OOS)* | ||
Mandan |
FB-721 | 10,000 | ||
Mandan |
FB-722 | 10,000 | ||
Mandan |
FB-723 | 96,000 | ||
Mandan |
FB-724 | 96,000 (OOS)** | ||
Mandan |
FB-725 | 96,000 | ||
Mandan |
FB-726 | 96,000 | ||
Mandan |
FB-727 | 96,000 | ||
Mandan |
FB-728 | 96,000 | ||
Mandan |
FB-729 | 96,000 | ||
Mandan |
FB-730 | 96,000 | ||
Mandan |
FB-731 | 96,000 | ||
Mandan |
FB-732 | 30,000 | ||
Mandan |
FB-733 | 96,000 | ||
Mandan |
FB-734 | 96,000 | ||
Mandan |
FB-737 | 20,000 (OOS) | ||
Mandan |
FB-738 | 43,000 | ||
Mandan |
FB-740 | 20,000 | ||
Mandan |
FB-741 | 15,000 |
Schedule B
Master Terminalling Services Agreement
LOCATION |
TANK NUMBER |
RESERVED CAPACITY (in Barrels) |
||
Mandan |
FB-742 | 30,000 (OOS) | ||
Mandan |
FB-743 | 20,000 | ||
Mandan |
FB-744 | 24,000 | ||
Mandan |
FB-745 | 20,000 | ||
Mandan |
FB-746 | 700 | ||
Mandan |
FB-747 | 96,000 | ||
Mandan |
FB-748 | 96,000 | ||
Mandan |
FB-749 | 300 (OOS) | ||
Mandan |
FB-750 | 96,000 | ||
Mandan |
FB-751 | 96,000 | ||
Mandan |
FB-752 | 96,000 | ||
Mandan |
FB-753 | 96,000 | ||
Mandan |
FB-754 | 96,000 | ||
Mandan |
FB-755 | 96,000 | ||
Mandan |
FB-756 | 24,000 | ||
Mandan |
FB-758 | 5,000 | ||
Mandan |
FB-764 | 96,000 | ||
Mandan |
FB-766 | 22,000 | ||
Mandan |
FB-767 | 8,000 | ||
Mandan |
FB-768 | 1,000 (OOS) | ||
Mandan |
FB-771 | 96,000 | ||
Mandan |
FB-773 | 12 | ||
Mandan |
FB-774 | 21 | ||
Salt Lake City |
140 | 20,562 | ||
Salt Lake City |
141 | 14,896 | ||
Salt Lake City |
142 | 14,323 | ||
Salt Lake City |
144 | (OOS) | ||
Salt Lake City |
155 | 10,313 | ||
Salt Lake City |
157 | 19,915 | ||
Salt Lake City |
158 | 19,915 | ||
Salt Lake City |
186 | 58,748 | ||
Salt Lake City |
188 | 58,748 | ||
Salt Lake City |
190 | 48,348 | ||
Salt Lake City |
204 | 55,094 | ||
Salt Lake City |
206 | 62,091 | ||
Salt Lake City |
209 | (OOS) | ||
Salt Lake City |
212 | 56,627 | ||
Salt Lake City |
213 | 56,627 | ||
Salt Lake City |
236 | 56,627 | ||
Salt Lake City |
242 | 55,688 | ||
Salt Lake City |
243 | 55,209 |
Schedule B
Master Terminalling Services Agreement
LOCATION |
TANK NUMBER |
RESERVED CAPACITY (in Barrels) |
||
Salt Lake City |
244 | 15,484 | ||
Salt Lake City |
245 | 24,071 | ||
Salt Lake City |
246 | 11,190 | ||
Salt Lake City |
247 | 11,190 | ||
Salt Lake City |
248 | 60,000*** | ||
Salt Lake City |
252 | 55,688 | ||
Salt Lake City |
268 | (OOS) | ||
Salt Lake City |
291 | 15,107 | ||
Salt Lake City |
294 | (OOS) | ||
Salt Lake City |
297 | 3,275 | ||
Salt Lake City |
298 | 3,575 | ||
Salt Lake City |
305 | 5,117 | ||
Salt Lake City |
306 | 5,117 | ||
Salt Lake City |
307 | 6,714 | ||
Salt Lake City |
308 | 6,714 | ||
Salt Lake City |
309 | (OOS) | ||
Salt Lake City |
310 | (OOS) | ||
Salt Lake City |
312 | (OOS) | ||
Salt Lake City |
314 | (OOS) | ||
Salt Lake City |
315 | (OOS) | ||
Salt Lake City |
321 | 24,171 | ||
Salt Lake City |
322 | 37,871 | ||
Salt Lake City |
323 | 37,871 | ||
Salt Lake City |
324 | 54,974 | ||
Salt Lake City |
325 | 54,974 | ||
Salt Lake City |
326 | 54,974 | ||
Salt Lake City |
327 | 54,974 | ||
Salt Lake City |
328 | 54,974 | ||
Salt Lake City |
329 | 10,313 | ||
Salt Lake City |
330 | 24,071 | ||
Salt Lake City |
331 | 33,105 | ||
Salt Lake City |
848 | 2,800 | ||
Salt Lake City |
849 | 2,800 | ||
Salt Lake City |
427A | 606 | ||
Salt Lake City |
427B | 606 | ||
Salt Lake City |
427C | 905 | ||
Salt Lake City |
427D | 905 | ||
LAR - Carson |
14 | 358,162 | ||
LAR - Carson |
16 | 96,247 | ||
LAR - Carson |
17 | 95,649 | ||
LAR - Carson |
31 | 82,396 |
Schedule B
Master Terminalling Services Agreement
LOCATION |
TANK NUMBER |
RESERVED CAPACITY (in Barrels) |
||
LAR - Carson |
61 | 100,965 | ||
LAR - Carson |
62 | 100,312 | ||
LAR - Carson |
63 | 100,600 | ||
LAR - Carson |
64 | 100,220 | ||
LAR - Carson |
73 | 30,570 | ||
LAR - Carson |
74 | 15,021 | ||
LAR - Carson |
75 | 14,972 | ||
LAR - Carson |
76 | 30,570 | ||
LAR - Carson |
78 | 10,239 | ||
LAR - Carson |
959 | 163,366 | ||
LAR - Carson |
350 | 1,770 | ||
LAR - Carson |
351 | 1,770 | ||
LAR - Carson |
352 | 1,770 | ||
LAR - Carson |
353 | 1,770 | ||
LAR - Carson |
354 | 1,770 | ||
LAR - Carson |
355 | 1,770 | ||
LAR - Carson |
398 | 6,910 | ||
LAR - Carson |
399 | 6,910 | ||
LAR - Carson |
677 | 16,671 (OOS) | ||
LAR - Carson |
678 | 16,690 (OOS) | ||
LAR - Carson |
679 | 16,307 (OOS) | ||
LAR - Carson |
680 | 16,279 (OOS) | ||
LAR - Carson |
681 | 30,000 | ||
LAR - Carson |
682 | 30,000 | ||
LAR - Carson |
683 | 30,000 | ||
LAR - Carson |
684 | 30,000 | ||
LAR - Carson |
773 | 97,844 | ||
LAR - Wilmington |
476 | 400 | ||
LAR - Wilmington |
776 | 700 | ||
LAR - Wilmington |
777 | 700 | ||
LAR - Wilmington |
778 | 700 | ||
LAR - Wilmington |
779 | 700 | ||
LAR - Wilmington |
780 | 700 | ||
LAR - Wilmington |
1501 | 985 | ||
LAR - Wilmington |
1502 | 985 | ||
LAR - Wilmington |
1503 | 985 | ||
LAR - Wilmington |
6000 | 6,000 | ||
LAR - Wilmington |
6001 | 6,000 | ||
LAR - Wilmington |
7201 | 7,156 | ||
LAR - Wilmington |
7501 | 8,395 | ||
LAR - Wilmington |
11000 | 11,567 |
Schedule B
Master Terminalling Services Agreement
LOCATION |
TANK NUMBER |
RESERVED CAPACITY (in Barrels) |
||
LAR - Wilmington |
11001 | 11,567 (OOS) | ||
LAR - Wilmington |
11002 | 11,567 (OOS) | ||
LAR - Wilmington |
11003 | 11,567 | ||
LAR - Wilmington |
11004 | 11,567 | ||
LAR - Wilmington |
13500 | 13,818 (OOS) | ||
LAR - Wilmington |
13501 | 13,818 (OOS) | ||
LAR - Wilmington |
13502 | 13,818 | ||
LAR - Wilmington |
13503 | 13,818 | ||
LAR - Wilmington |
13504 | 13,818 | ||
LAR - Wilmington |
13505 | 13,818 | ||
LAR - Wilmington |
13506 | 13,818 | ||
LAR - Wilmington |
13507 | 13,818 (OOS) | ||
LAR - Wilmington |
13508 | 13,818 | ||
LAR - Wilmington |
13509 | 13,818 (OOS) | ||
LAR - Wilmington |
13510 | 13,818 | ||
LAR - Wilmington |
13511 | 13,818 | ||
LAR - Wilmington |
13512 | 13,818 (OOS) | ||
LAR - Wilmington |
20426 | 20,144 | ||
LAR - Wilmington |
36001 | 36,612 | ||
LAR - Wilmington |
36002 | 36,612 | ||
LAR - Wilmington |
50000 | 50,000 | ||
LAR - Wilmington |
76000 | 76,158 | ||
LAR - Wilmington |
80033 | 81,383 | ||
LAR - Wilmington |
80034 | 81,383 | ||
LAR - Wilmington |
80035 | 81,383 | ||
LAR - Wilmington |
80036 | 81,383 | ||
LAR - Wilmington |
80037 | 81,383 | ||
LAR - Wilmington |
80038 | 81,383 | ||
LAR - Wilmington |
80039 | 81,383 | ||
LAR - Wilmington |
80042 | 81,383 | ||
LAR - Wilmington |
80044 | 81,383 | ||
LAR - Wilmington |
80045 | 81,383 | ||
LAR - Wilmington |
80049 | 81,383 | ||
LAR - Wilmington |
80050 | 81,383 | ||
LAR - Wilmington |
80051 | 81,383 | ||
LAR - Wilmington |
80055 | 81,383 | ||
LAR - Wilmington |
80057 | 82,340 | ||
LAR - Wilmington |
80058 | 81,383 | ||
LAR - Wilmington |
80061 | 81,383 | ||
LAR - Wilmington |
80062 | 81,383 | ||
LAR - Wilmington |
80063 | 81,383 |
Schedule B
Master Terminalling Services Agreement
LOCATION |
TANK NUMBER |
RESERVED CAPACITY (in Barrels) |
||
LAR - Wilmington |
80064 | 81,383 | ||
LAR - Wilmington |
80065 | 81,383 | ||
LAR - Wilmington |
80066 | 81,383 | ||
LAR - Wilmington |
80067 | 81,383 | ||
LAR - Wilmington |
80068 | 81,383 | ||
LAR - Wilmington |
80069 | 81,383 | ||
LAR - Wilmington |
80070 | 81,383 | ||
LAR - Wilmington |
80071 | 81,383 | ||
LAR - Wilmington |
80072 | 81,383 | ||
LAR - Wilmington |
80075 | 78,511 | ||
LAR - Wilmington |
80076 | 81,383 | ||
LAR - Wilmington |
80077 | 81,383 | ||
LAR - Wilmington |
80078 | 81,383 | ||
LAR - Wilmington |
80079 | 81,383 | ||
LAR - Wilmington |
80080 | 81,383 | ||
LAR - Wilmington |
80081 | 81,383 | ||
LAR - Wilmington |
80082 | 81,383 | ||
LAR - Wilmington |
80083 | 81,383 | ||
LAR - Wilmington |
80084 | 81,383 | ||
LAR - Wilmington |
80085 | 81,383 | ||
LAR - Wilmington |
80087 | 81,383 | ||
LAR - Wilmington |
80089 | 81,383 | ||
LAR - Wilmington |
80090 | 81,383 | ||
LAR - Wilmington |
80091 | 81,383 | ||
LAR - Wilmington |
80092 | 81,383 | ||
LAR - Wilmington |
80209 | 85,610 | ||
LAR - Wilmington |
80210 | 85,610 | ||
LAR - Wilmington |
80211 | 85,610 | ||
LAR - Wilmington |
80212 | 85,610 | ||
LAR - Wilmington |
80213 | 85,610 | ||
LAR - Wilmington |
80214 | 85,610 | ||
LAR - Wilmington |
80215 | 85,610 | ||
LAR - Wilmington |
80216 | 85,610 | ||
LAR - Wilmington |
80217 | 85,610 | ||
LAR - Wilmington |
80218 | 80,000 | ||
LAR - Wilmington |
80219 | 85,610 | ||
LAR - Wilmington |
80220 | 85,610 | ||
LAR - Wilmington |
80221 | 81,239 | ||
LAR - Wilmington |
96000 | 96,689 | ||
LAR - Wilmington |
96059 | 96,689 | ||
LAR - Wilmington |
118066 | 117,477 |
Schedule B
Master Terminalling Services Agreement
LOCATION |
TANK NUMBER |
RESERVED CAPACITY (in Barrels) |
||
LAR - Wilmington |
125000 | 123,278 | ||
LAR - Wilmington |
125001 | 123,278 | ||
LAR - Wilmington |
125002 | 125,897 | ||
LAR - Wilmington |
125003 | 125,897 | ||
LAR - Wilmington |
125004 | 125,897 | ||
Fryburg Terminal |
Tk-102 | 150,000 | ||
Fryburg Terminal |
Tk-103 | 175,000 | ||
Fryburg Terminal |
Tk-104 | 175,000 | ||
Wingate Terminal |
Tk-101 | 150,000 | ||
Wingate Terminal |
V-500 - V-505 | 8,004 | ||
Wingate Terminal |
V-506 - V-510 | 8,521 | ||
Wingate Terminal |
V-516 - V-518 | 5,450 | ||
Wingate Terminal |
V-511 - V515 | 12,413 | ||
Wingate Terminal |
V-200 - V-207 | 9,941 | ||
Wingate Terminal |
V-208 | 1,243 | ||
Wingate Terminal |
V-400 - V-407 | 10,652 | ||
Wingate Terminal |
V-209 - V-214 | 10,291 | ||
Wingate Terminal |
V-215 | 7,676 | ||
Wingate Terminal |
V-216 | 10,313 | ||
Wingate Terminal |
V-100 - V-101 | 12,390 | ||
Wingate Terminal |
V-102 - V-103 | 20,791 | ||
Wingate Terminal |
V-104 | 10,313 | ||
Wingate Terminal |
V-519 | 95 | ||
JAL Terminal |
NA | 212,000 | ||
Clearbrook |
Tk-6014 | 300,000 | ||
Clearbrook |
Tk-6015 | 300,000 |
* |
Out of Service (OOS). |
** |
Tank 724, Subgrade, expected to come into service October 2020. |
*** |
Projected construction completion in 2019. Upon completion, fees will be assessed pursuant to an applicable Terminal Service Order. |
For the avoidance of doubt, fees will be assessed only upon in-service Dedicated Tanks.
Schedule B
Master Terminalling Services Agreement
SCHEDULE C
RAIL TERMINAL MINIMUM COMMITMENT AND RAIL RESERVED CAPACITY
Terminal |
Minimum
Commitment (bpm) |
Reserved Capacity
(bpm) |
||||||
Mandan Rail Terminal |
102,808 | 102,808 | ||||||
Salt Lake City Rail Terminal |
151,171 | 151,171 | ||||||
LAR Rail TerminalCarson |
273,750 | 273,750 | ||||||
LAR Rail TerminalWilmington |
100,375 | 100,375 | ||||||
Fryburg Rail Terminal |
N/A | N/A | ||||||
Wingate Rail Terminal |
N/A | N/A | ||||||
JAL NGL Rail Terminal |
N/A | N/A |
Schedule C
Master Terminalling Services Agreement
EXHIBIT 1
FORM OF TERMINAL SERVICE ORDER
[Name of Applicable Terminal]( , 20 )
This Terminal Service Order is entered as of , 20 , by and between [applicable Customer] and [applicable Provider], with respect to the [applicable terminal (the Terminal ), pursuant to and in accordance with the terms of the Master Terminalling Services Agreement, dated as of August 6, 2018 (as amended, supplemented, or otherwise modified from time to time, the Master Agreement ).
Capitalized terms not otherwise defined herein shall have the meaning set forth in the Master Agreement.
Pursuant to Section 13 of the Master Agreement, the parties hereto agree to the following provisions with respect to the Terminal:
[Insert applicable provisions:
(i) the type of Product applicable to the services covered by this Terminal Service Order (and any other specific quality specifications for each such Product type);
(ii) allocation of throughput capacity by Product, and the rates by Product for determining the Terminalling Service Fee pursuant to Section 4 of the Master Agreement;
(iii) identification of tanks to be utilized for dedicated storage tanks and the Storage Services Fee pursuant to Section 5 of the Master Agreement;
(iv) steam services and the fees for such steam services pursuant to Section 5(c) of the Master Agreement;
(v) services for oily water removal and the fees for such oily water removal pursuant to Section 5(d) of the Master Agreement;
(vi) rail loading and unloading services and the Rail Loading Services Fee pursuant to Section 6 of the Master Agreement;
(vii) caustic chemical and catalyst loading and unloading services, rail car switching and storage, and track inspection and maintenance services and the fees for such track inspection and maintenance pursuant to Sections 6(e) , 6(f) , and 6(g) of the Master Agreement, respectively;
(viii) Passthrough charges pursuant to Section 7 of the Master Agreement;
(ix) Transmix handling fees pursuant to Section 8 of the Master Agreement;
(x) Blending Services pursuant to Section 9 of the Master Agreement;
(xi) reimbursement related to newly imposed taxes pursuant to Section 10 of the Master Agreement;
Exhibit 1
Terminalling Services Agreement
(xii) Surcharges related to expenditures as a result of newly imposed laws and regulations pursuant to Section 11 of the Master Agreement;
(xiii) tank cleaning or conversion pursuant to Section 12 of the Master Agreement; and
(xiv) any other services as may be agreed.]
Except as set forth in this Terminal Service Order, the other terms of the Master Agreement are hereby incorporated by reference and shall continue in full force and effect and shall apply to the terms of this Terminal Service Order.
[Signature Page Follows]
Exhibit 1
Terminalling Services Agreement
IN WITNESS WHEREOF , the parties hereto have duly executed this Terminal Service Order as of the date first written above.
[Customer]
By: Name: Title: |
[Provider]
By: Name: Title: |
Exhibit 1
Terminalling Services Agreement
Exhibit 10.3
Execution Version
CONSTRUCTION SERVICE AGREEMENT
Los Angeles Refinery Interconnecting Pipelines
THIS CONSTRUCTION SERVICE AGREEMENT ( Agreement ) is made and entered into effective as of August 6, 2018 ( Effective Date ), by and between Tesoro SoCal Pipeline Company LLC, a Delaware limited liability company, whose address is 19100 Ridgewood Parkway, San Antonio, TX 78259 ( Company ), and Tesoro Refining & Marketing Company LLC, a Delaware limited liability company, whose address is 19100 Ridgewood Parkway, San Antonio, TX 78259 ( Contractor ). Company and Contractor are each a Party and collectively are Parties to this Agreement.
RECITALS
WHEREAS , the Parties have agreed to participate in a construction project (the Project ) whereby Contractor will cause the Work to be completed in accordance with the terms of this Agreement;
WHEREAS , the Parties contemplate that the Project will be completed on or before December 31, 2018;
WHEREAS , Company will provide pipeline transportation services to Contractor pursuant to the terms of that certain Pipeline Transportation Agreement dated as of the date hereof ( Transportation Services Agreement );
WHEREAS , the Parties anticipate that Contractor will perform construction of the Project, including work to be located within (i) rights of way, permit areas, easements or license areas granted by third parties to Company or to Contractor, and (ii) real property owned by Contractor in which Contractor has granted a license to Company, such applicable rights of way, permits, easements and licenses being more particularly described on Exhibit D attached hereto; and
WHEREAS , by entering into this Agreement, Company and Contractor desire to establish certain general terms and conditions which shall apply to, govern and control, all Work on the Project performed by Contractor for Company within the scope of this Agreement.
NOW, THEREFORE , in consideration of the premises and the mutual promises contained herein, the Parties agree as follows:
1.0 |
Nature of Agreement |
1.1 |
This Agreement establishes the basic terms applicable to the Work, including the scope of work described in Exhibit B , as may be modified by any applicable FCOs or other written agreements between the Parties referencing this Agreement. |
1.2 |
Contractor shall perform the Work required to complete constructing and equipping the LAR Interconnecting Pipelines pursuant to the terms hereof and shall deliver to Company the LAR Interconnecting Pipelines as a whole in accordance with the terms of this Agreement and all applicable legal and regulatory requirements. Notwithstanding anything herein to the contrary, in the event that certain lines or |
portions of the LAR Interconnecting Pipelines are operational prior to completion and delivery of the LAR Interconnecting Pipelines as a whole, Company shall be permitted to utilize and put into service said lines or portions prior to such delivery of the LAR Interconnecting Pipelines as a whole. |
1.3 |
Upon completion of Work: (a) if and to the extent the following have not previously been granted to Company, Contractor shall grant to Company easements, licenses, permits and other use and access rights sufficient for Company to access, own, operate and maintain the LAR Interconnecting Pipelines, on lands owned or leased by Contractor; (b) Contractor will cooperate with Company to allow Company to acquire any required easements, licenses, permits and other use and access rights to allow the LAR Interconnecting Pipelines to cross lands owned by third parties (including governmental entities), sufficient for Company to access, own, operate and maintain the LAR Interconnecting Pipelines; and (c) if and to the extent the following have not previously been assigned to Company, Contractor shall assign to Company all easements, licenses, permits and other use and access rights held by Contractor across any such third party lands to the extent required to allow Company to access, own, operate and maintain the LAR Interconnecting Pipelines. All such access shall be subject to such safety and security requirements that Contractor may require in its reasonable discretion from time to time. Company employees and contractors may be required to comply with the same conditions, restrictions, and requirements that apply to similarly situated Contractor employees and contractors having access to the real property comprising the Refinery, and Contractor may deny access to or remove any such employees or contractors in violation of Contractors policies. |
1.4 |
Company hereby provides Contractor with a license to cross, occupy, and reasonably modify lands owned or leased by Company as required to complete the Work. Company shall have the right to reasonably designate areas that may be occupied in connection with the Work and where the LAR Interconnecting Pipelines may be located, so as to minimize interference with current and anticipated use of such property. All such access shall be subject to the provisions of this Agreement and such other safety and security requirements that Company may require in its reasonable discretion from time to time. Contractor Personnel may be required to comply with the same conditions, restrictions and requirements that apply to similarly situated Company employees and contractors having access to the property, and Company may deny access to or remove any such employees or contractors in violation of Companys policies. |
2.0 |
Definitions |
The capitalized terms and acronyms in this Agreement have the following meanings:
2.1 |
Agreement has the meaning set forth in the Preamble. |
2
2.2 |
Applicable Laws mean laws, regulations, statutes, codes, rules, orders, permits, policies, licenses, certifications, decrees, standards, or interpretations imposed by any governmental authority that apply to the performance of the Work or this Agreement, including those within the Area of Operations and any jurisdiction where the Work is performed. |
2.3 |
Area of Operations means the area where Contractor performs or is expected to perform the Work. |
2.4 |
Company means the party listed in the preamble above who has contracted with Contractor for the Work. |
2.5 |
Company Group has the meaning set forth in Section 10.2 . |
2.6 |
Confidential Information means all confidential, proprietary or non-public information of a Party, whether set forth in writing, orally or in any other manner, including all non-public information and material of such Party (and of companies with which such Party has entered into confidentiality agreements) that another Party obtains knowledge of or access to, including non-public information regarding products, processes, business strategies and plans, customer lists, research and development programs, computer programs, hardware configuration information, technical drawings, algorithms, know-how, formulas, processes, ideas, inventions (whether patentable or not), trade secrets, schematics and other technical, business, marketing and product development plans, revenues, expenses, earnings projections, forecasts, strategies, and other non-public business, technological, and financial information. |
2.7 |
Construction Fee has the meaning set forth on Exhibit C . |
2.8 |
Contractor means the party listed in the preamble above who, according to the terms and conditions of this Agreement, will provide the Work to Company. |
2.9 |
Contractor Group has the meaning set forth in Section 10.1 . |
2.10 |
Contractor Personnel means Contractors employees, agents, representatives, contractors and subcontractors. |
2.11 |
Contractors Standards means Contractors established practices, methods, techniques, standards, codes, operating procedures, and/or specifications applicable to the Work. |
2.12 |
Effective Date has the meaning set forth in the Preamble. |
2.13 |
Environmental Laws means all federal, state, and local laws, statutes, rules, regulations, orders, judgments, ordinances, codes, injunctions, decrees, Environmental Permits and other legally enforceable requirements and rules of common law now or hereafter in effect, relating to pollution or protection of human health and the environment including, without limitation, the federal Comprehensive Environmental Response, Compensation, and Liability Act, the Superfund Amendments Reauthorization Act, the Resource Conservation and |
3
Recovery Act, the Clean Air Act, the Federal Water Pollution Control Act, the Toxic Substances Control Act, the Oil Pollution Act, the Safe Drinking Water Act, the Hazardous Materials Transportation Act, and other environmental conservation and protection laws, each as amended from time to time. |
2.14 |
Environmental Permit means any permit, approval, identification number, license, registration, consent, exemption, variance, or other authorization required under or issued pursuant to any applicable Environmental Law. |
2.15 |
Invoice has the meaning set forth in Section 3.3 . |
2.16 |
FCO means Field Change Order. |
2.17 |
FCR means Field Change Request. |
2.18 |
Force Majeure means an act of God, strike, lockout, or other industrial disturbance, act of public enemy, terrorism, war, blockade, fire, storm or governmental action, governmental restraint, or any other cause, whether of the kind enumerated above or not, which is not reasonably within the control of Contractor. |
2.19 |
Goods shall mean personal property, materials, supplies, and equipment included within the Work. |
2.20 |
Hazardous Substance means (a) any substance that is designated, defined or classified as a hazardous waste, solid waste, hazardous material, pollutant, contaminant or toxic or hazardous substance, or terms of similar meaning, or that is otherwise regulated under any Environmental Law, including, without limitation, any hazardous substance as defined under the Comprehensive Environmental Response, Compensation, and Liability Act, as amended, and (b) petroleum, oil, gasoline, natural gas, fuel oil, motor oil, waste oil, diesel fuel, jet fuel, and other refined petroleum hydrocarbons. |
2.21 |
Indemnified Group has the meaning set forth in Section 10.2 . |
2.22 |
Los Angeles Refinery Interconnecting Pipelines or LAR Interconnecting Pipelines shall mean eight (8) pipelines within a single bundle to be constructed to interconnect two units of the Refinery, the Carson unit and the Wilmington unit, including pipelines to be installed below Sepulveda Boulevard, Alameda Street and the Long Beach Harbor Railroad and other railroad tracks, and adjoining lands, and which may include portions of existing pipelines that are joined with new piping to form complete interconnecting pipelines, together with pipelines on the Refinery property and on lands owned or leased by Company, and such ancillary pumps, meters and other equipment required for operation of such pipelines, all as more completely described on Exhibit B . |
2.23 |
Party and Parties have the meaning set forth in the Preamble. |
4
2.24 |
Person means an individual, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture, governmental authority or other entity of whatever nature. |
2.25 |
Pipeline Safety Act has the meaning set forth in Section 16.2 . |
2.26 |
Project has the meaning set forth in the Recitals. |
2.27 |
Receiving Party Personnel has the meaning set forth in Section 20.5 . |
2.28 |
Refinery means Contractors refinery in Los Angeles, California, including the units formerly operated as the Carson and Wilmington plants. |
2.29 |
Special Damages has the meaning set forth in Section 26.1 . |
2.30 |
Transportation Services Agreement has the meaning set forth in the recitals. |
2.31 |
Work includes the furnishing and delivery by Contractor of all labor, supervision, materials, tools, equipment, and supplies that are necessary to provide the work to complete design, engineering, construction, and testing of the LAR Interconnecting Pipelines as indicated on Exhibit B attached hereto, and any applicable FCOs or other written agreements between the Parties covering the subject matter of this Agreement. |
3.0 |
Price and Payment |
3.1 |
Company shall pay Contractor for the Work in accordance with the pricing terms set forth on Exhibit C , as may be modified by an applicable FCO or other written agreement between the Parties. |
3.2 |
Notwithstanding anything herein to the contrary, payment shall be due for the Work when the Work has been fully completed pursuant to the terms of this Agreement. |
3.3 |
Contractor shall submit an invoice to Company for the Work (the Invoice ) in accordance with the terms of this Article 3.0 and Exhibit C , upon the earlier to occur of (a) within ten (10) days after the Work has been fully completed pursuant to the terms of this Agreement and (b) December 21, 2018. The Invoice shall set forth the amount due under this Agreement, including any applicable FCO, and include reasonable supporting documentation. Company shall pay all undisputed amounts set forth in the Invoice upon the earlier to occur of (a) ten (10) calendar days after Companys receipt of the Invoice and (b) December 31, 2018. Any past due payments (of undisputed amounts) owed by Company shall accrue interest, payable on demand, at the lesser of (a) the rate of interest announced publicly by JPMorgan Chase Bank, in New York, New York, as JPMorgan Chase Banks prime rate (which Parties acknowledge and agree is announced by such bank and used by the Parties for reference purposes only and may not represent the lowest or best rate available to any of the customers of such bank or the Parties), plus four percent (4%), and (b) the highest rate of interest (if any) permitted by applicable law, from |
5
the due date of the payment through the actual date of payment. If the amount set forth in the Invoice is subject to dispute, Company shall be obligated to pay only the undisputed portion of the Invoice pending the resolution of such dispute in accordance with Section 3.4 . |
3.4 |
Company may dispute the Invoice by giving written notice to Contractor within three (3) months following the month in which such the Invoice was delivered. Upon resolution of the dispute, any required payment must be made within ten (10) days of such resolution. |
3.5 |
Company and its duly authorized agents and/or representatives shall have reasonable access to the accounting records and other documents maintained by Contractor which related to this Agreement or the Work, and shall have the right to audit such records at any reasonable time or times during the term of this Agreement and for a period of up to three (3) years after termination or expiration of this Agreement. |
4.0 |
Transfer of Assets And Work Performed After Such Transfer |
4.1 |
Upon completion of the Work, Contractor shall transfer via a duly executed assignment and bill of sale to Company, if and to the extent not already assigned to Company, the pipelines, pumps, and other assets included within the LAR Interconnecting Pipelines, together with all easements, licenses, permits and other use and access rights providing Company with all rights necessary to access, own, operate and maintain the LAR Interconnecting Pipelines, free and clear of liens and encumbrances that could impair Companys title to or rights to use the LAR Interconnecting Pipelines, as specified in Section 1.3 above, all of which shall thereafter be shall be included as part of the LAR Interconnecting Pipelines. |
4.2 |
In the event that all of the Work has not been completed prior to December 31, 2018, then Contractor shall, as of December 31, 2018, assign to Company all of the assets and rights specified in Section 4.1 above, free and clear of liens and encumbrances that could impair Companys title to or rights to use the same, without limiting Contractors obligation to continue and complete the Work in accordance with the terms hereof. |
4.3 |
If all Work has not been completed on the LAR Interconnecting Pipelines at the time of transfer (as set forth in Section 4.2 above), Contractor shall continue to perform the Work until the Work has been completed in accordance with all design specifications, engineering, and Contractors Standards. |
5.0 |
Orders and Field Change Requests |
5.1 |
Company may request changes in the Work to be performed. Prior to the commencement of any additional or revised Work requested by Company, Contractor shall provide Company with a FCR to reflect the additional or revised Work to be performed. Company may approve said FCR, and, if the FCR is approved, shall execute and deliver to Contractor a FCO before such additional or revised Work shall commence. If Company executes and delivers the FCO to Contractor, such FCO shall amend the applicable terms of this Agreement. |
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6.0 |
Inspection, Testing, Acceptance, and Rejection |
6.1 |
Company may inspect and test the Work and also reject any or all of the same not conforming as to quality, type, or quantity as stated on Exhibit B , even if payment has been made by Company to Contractor. Company shall be under no obligation or duty to inspect the Work. Unless Exhibit B or an FCR specifically provides otherwise, Companys inspection of or failure to inspect any Work shall not limit, waive, release, or otherwise affect Contractors guaranties and warranties provided herein or relieve Contractor of any other responsibilities hereunder. Companys failure to inspect any particular Work shall not be a continuing waiver of its right to inspect any future Work to be performed hereunder. |
6.2 |
Contractor shall furnish to Company all information and data as may be reasonably required to perform Companys inspection. Company reserves the right at any time to cancel or suspend the Work if Companys inspection reveals that the Work being performed does not conform to applicable safety laws and/or regulations. |
6.3 |
The right to test and reject non-conforming Work includes, but is not limited to: processes, technical information, computer software, raw materials, components, intermediate assemblies, and end products. |
6.4 |
Company shall have the absolute right to reject any Work that is deficient or non-conforming with respect to the specifications contained on Exhibit B or the warranties contained herein, and Company shall be under no obligation to pay for any such rejected Work. In the event Company accepts such Work, Company shall continue to retain any and all of its remedies provided by the terms of this Agreement, including, but not limited to, (a) conditionally accepting such defective or non-conforming Work subject to an equitable price reduction; (b) correcting or replacing such defective or non-conforming Work and back-charging Contractor for all costs incurred by Company; or (c) requiring Contractor to promptly repair or replace such defective or non-conforming Work or materials or equipment at Contractors sole expense. |
6.5 |
All materials and equipment delivered or installed and Work performed by Contractor shall be deemed to be accepted when the same have been determined by Company in its discretion to be in conformance with the specifications contained on Exhibit B and the warranties provided herein. Companys inspection or acceptance of or payment for any Work shall not constitute a waiver of any warranties, rights, or remedies. |
6.6 |
Contractor is under a continuing obligation, subsequent to the performance of any Work, to notify Company in the event Contractor discovers or becomes aware of any non-conformity in the delivered Work performed. Contractor shall provide written notice to Company within twenty-four (24) hours of such discovery. |
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7.0 |
Late Work |
7.1 |
If Contractor believes it may be unable to comply with any delivery and/or installation date or completion schedule, Contractor shall promptly notify Company in writing of the probable length of any anticipated delay and the reasons for it. |
7.2 |
Acceptance of late performance of the Work shall not be deemed a waiver or modification of any of Contractors performance obligations hereunder. |
8.0 |
Offset and Liens |
8.1 |
Contractor shall keep Companys property free of all liens and claims of Contractor or Contractor Personnel, which may arise as a result of Contractor and Contractor Personnels performance of the Work. |
8.2 |
Contractor, at its own expense, shall secure the prompt discharge of any lien(s) which may arise out of or in connection with performance of the Work by Contractor or Contractor Personnel. |
8.3 |
If Contractor fails to discharge any lien or claim of lien not permitted by this Article 8.0 , within five (5) business days from receipt of notice by Company to Contractor, Company may discharge or release the liens or claim of lien, and Contractor shall pay and reimburse Company its costs for the release and reasonable attorneys fees and other costs associated with securing the release or settlement of lien. |
9.0 |
Contractor Obligations, Warranties and Representations |
9.1 |
Contractor will construct and deliver to Company the LAR Interconnecting Pipelines at the Area of Operations that (a) conforms to and complies in all respects with the specifications set forth on Exhibit B , (b) is free of liens, encumbrances and material defects, (c) has been designed, engineered and constructed in compliance with all Applicable Laws, and (d) is capable of operating and transporting DGO (sweet gasoil), light cycle oil (LCO) and URD (hydrocracker feed), naphtha/blend components, butylene, propylene (RGP), and butane, in each case, in accordance with Applicable Laws and Contractors Standards. |
9.2 |
Contractor shall, and shall cause all Contractor Personnel to, perform all Work in a good and workmanlike manner with due diligence and without undue delay or interruption. Contractor warrants that (a) all Contractor Personnel will have adequate equipment, in good working order, free from defects and fit for its intended use of performing the Work, (b) Contractor and Contractor Personnel will have fully trained, certified, and adequately supervised personnel perform the Work, who are capable of safely and properly operating the equipment in accordance with all Applicable Laws and Contractors Standards, and (c) the Work shall be performed as efficiently and economically to Company as possible and in full compliance with Companys safety and environmental rules and policies. |
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9.3 |
The representations and warranties contained herein shall extend to the Work performed by Contractor Personnel to the same extent as to any such Work performed by Contractor. |
9.4 |
Contractor hereby agrees to assign Company any and all warranties and guarantees from third party contractors, suppliers, and manufacturers and to cooperate in the enforcement of such warranties and guarantees. |
9.5 |
Contractor shall conduct its operations in such a manner as to cause a minimum of interference with Companys operations and the operations of other contractors at the jobsite, and protect all persons and property thereon from damage or injury. |
9.6 |
If any Work performed or materials or equipment installed by Contractor or its contractors shall prove defective in title, material and/or workmanship, within eighteen (18) months from the date of receipt by Company, or one year from the date of completion of the Work, whichever occurs first in time, Company shall notify Contractor in writing of such defect or non-compliance within sixty (60) days of discovery of such defect or non-compliance, and Contractor shall, at its option, modify, repair, or replace such defective Work, materials, or equipment, at no cost to Company. Contractor shall take custody and title of the defective Goods or item upon installation of the replacement Goods or item. Adjustments for materials or equipment not manufactured by Contractor shall be made to the extent of any warranty of the manufacturer or supplier thereof. In the event any Goods are not available for use due to defects in materials, workmanship or engineering furnished by Contractor, the guarantee period shall be extended for a period equal to the time of delay due to non-use. |
9.7 |
Any easements, licenses, permits, and other use and access rights provided by Contractor to Company under the terms of this Agreement shall be sufficient to allow Company to own and operate the LAR Interconnecting Pipelines on lands owned or leased by Contractor, free and clear of liens and encumbrances that could impair Companys title to or rights to access, use, operate or maintain the LAR Interconnecting Pipelines. |
9.8 |
Contractor acknowledges that there are hazards inherent in Companys operations and that Companys facilities, equipment and premises may contain patent and latent hazardous conditions and defects. Contractor shall familiarize itself with the condition of Companys facilities and equipment prior to beginning such Work and Contractor accepts such facilities and equipment AS IS, WHERE IS for such Work. |
10.0 |
Indemnification |
10.1 |
Notwithstanding anything else contained in this Agreement, Company shall release, defend, protect, indemnify, and hold harmless Contractor and its affiliates and their respective officers, directors, members, managers, employees, agents, contractors, successors, and assigns (excluding any member of the Company |
9
Group) (collectively the Contractor Group ), from and against any and all demands, claims (including third-party claims), losses, costs, suits, or causes of action (including, but not limited to, any judgments, losses, liabilities, fines, penalties, expenses, interest, reasonable legal fees, costs of suit, and damages, whether in law or equity and whether in contract, tort, or otherwise) for or relating to (a) personal or bodily injury to, or death of the employees of Company or Contractor and, as applicable, their carriers, customers, representatives, and agents, (b) loss of or damage to any property, products, material, and/or equipment belonging to Company or Contractor, and, as applicable, their carriers, customers, representatives, and agents, and each of their respective affiliates, contractors, and subcontractors, (c) loss of or damage to any other property, products, material, and/or equipment of any other description, and/or personal or bodily injury to, or death of any other person or persons; and with respect to clauses (a) through (c) above, which is caused by or resulting in whole or in part from the negligent or wrongful acts or omissions of Company in connection with the LAR Interconnecting Pipelines or the Work provided hereunder, and, as applicable, their carriers, customers, representatives, and agents, or those of their respective employees with respect to such matters, and (d) any losses incurred by Contractor due to violations of this Agreement by Company, or, as applicable, its carriers, customers, representatives, and agents; PROVIDED THAT COMPANY SHALL NOT BE OBLIGATED TO RELEASE, INDEMNIFY OR HOLD HARMLESS CONTRACTOR OR ANY MEMBER OF THE CONTRACTOR GROUP FROM AND AGAINST ANY CLAIMS TO THE EXTENT THEY RESULT FROM THE BREACH OF CONTRACT, STRICT LIABILITY OR THE NEGLIGENT ACTS, ERRORS OR OMISSIONS OR WILLFUL MISCONDUCT OF CONTRACTOR OR ANY MEMBER OF THE CONTRACTOR GROUP. |
10.2 |
Notwithstanding anything else contained in this Agreement, Contractor shall release, defend, protect, indemnify, and hold harmless Company and its affiliates and their respective officers, directors, members, managers, employees, agents, contractors, successors, and assigns (excluding any member of the Contractor Group) (collectively the Company Group ; and Company Group and Contractor Group each an Indemnified Group , as applicable) from and against any and all demands, claims (including third-party claims), losses, costs, suits, or causes of action (including, but not limited to, any judgments, losses, liabilities, fines, penalties, expenses, interest, reasonable legal fees, costs of suit, and damages, whether in law or equity and whether in contract, tort, or otherwise) for or relating to (a) personal or bodily injury to, or death of the employees of Company or Contractor and, as applicable, their carriers, customers, representatives, and agents; (b) loss of or damage to any property, products, material, and/or equipment belonging to Company or Contractor, and, as applicable, their carriers, customers, representatives, and agents, and each of their respective affiliates, contractors, and subcontractors; (c) loss of or damage to any other property, products, material, and/or equipment of any other description, and/or personal or bodily injury to, or death of any other person or persons; and with respect to clauses (a) through (c) above, which is caused by or resulting in whole or in part from the negligent or wrongful acts or omissions of Contractor or Contractor Personnel, in connection |
10
with the LAR Interconnecting Pipelines or the Work provided hereunder, and, as applicable, their carriers, customers, representatives, and agents, or those of their respective employees with respect to such matters; and (d) any losses incurred by Company due to violations of this Agreement by Contractor or Contractor Personnel, or, as applicable, their carriers, customers, representatives, and agents; PROVIDED THAT CONTRACTOR SHALL NOT BE OBLIGATED TO RELEASE, INDEMNIFY OR HOLD HARMLESS COMPANY OR ANY MEMBER OF THE COMPANY GROUP FROM AND AGAINST ANY CLAIMS TO THE EXTENT THEY RESULT FROM THE BREACH OF CONTRACT, STRICT LIABILITY OR THE NEGLIGENT ACTS, ERRORS OR OMISSIONS OR WILLFUL MISCONDUCT OF COMPANY OR ANY MEMBER OF THE COMPANY GROUP. |
10.3 |
Contractor and Company shall not be considered affiliated or affiliates of one another for purposes of the indemnification provisions set forth in this Agreement. |
10.4 |
Except as expressly provided otherwise in this Agreement, the scope of these indemnity provisions may not be altered, restricted, limited, or changed by any other provision of this Agreement. The indemnity obligations of the Parties as set out in this Article 10.0 are independent of any insurance requirements set forth in this Agreement and such indemnity obligations shall not be lessened or extinguished by reason of a Partys failure to obtain the required insurance coverages or by any defenses asserted by a Partys insurers. |
10.5 |
Neither Party shall be obligated to indemnify the other Party or any member of such Partys Indemnified Group or be liable to the other Party or any member of such Partys Indemnified Group unless a written claim for indemnity is delivered to the other Party within ninety (90) days after the date that a claim is reported or discovered, whichever is earlier. |
10.6 |
This Article 10.0 and the indemnification provisions in this Article 10.0 shall survive the cancellation, termination or expiration of this Agreement until all applicable statutes of limitation have run regarding any claims that could be made with respect to the activities contemplated by this Agreement. |
10.7 |
If any Party has the rights to indemnification from a third party, the indemnifying party under this Agreement shall have the right of subrogation with respect to any amounts received from such third-party indemnification claim. |
11.0 |
Insurance |
11.1 |
Contractor shall require all of its agents, contractors, and subcontractors to provide the insurance coverage (including additional insured, waiver of subrogation, certificates and non-cancellation) as indicated on Exhibit A . |
11.2 |
The existence or non-existence of insurance as required by this Agreement will not limit Contractors liability for any claims asserted against Company. |
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12.0 |
Responsibility for Loss or Damage to Equipment and Materials |
12.1 |
Unless otherwise agreed by the Parties, Company shall not safeguard or protect any vehicles, vessels, tools, equipment, machinery, supplies or other personal property belonging to Contractor or any Contractor Personnel, whether or not on Companys premises, and the owners of such property shall be solely responsible for the protection of such property. |
13.0 |
Independent Contractor Relationship |
13.1 |
Contractor will be an independent contractor in its performance of all Work hereunder. Contractor shall have exclusive direction and control of all Contractor Personnel and shall be solely responsible for Contractors acts and omissions and for the acts and omissions of Contractor Personnel. Company is interested only in the results obtained and has only general rights of inspection, review, and approval of the Work, in order to assure satisfactory completion of the Work and compliance with the terms of this Agreement. |
14.0 |
Safety and Environmental Requirements |
14.1 |
Contractor shall take any and all necessary precautions to prevent the occurrence of any injury (including death) to any Person(s), or any damage to any property or the environment, arising out of acts or omissions of Contractor or Contractor Personnel. |
14.2 |
Contractor agrees to comply with any safety and environmental requirements set forth by the Companys environmental, health, and safety manager at the location where Work is performed. Approval of any exceptions to safety or environmental requirements shall be handled by the safety manager at the location where Work is performed. |
15.0 |
Security and Background Check Requirements |
15.1 |
Contractor shall have background checks performed on all Contractor Personnel who will have access to the Area of Operations, unescorted by a Company or Contractor employee. |
16.0 |
Laws, Rules, and Regulations |
16.1 |
Contractor will, and will cause Contractor Personnel to, comply with all Applicable Laws in connection with their performance of all Work pursuant to this Agreement. Contractor shall, and shall cause Contractor Personnel to, obtain and maintain current all required permits, licenses, certificates, and approvals for the Work. Contractor shall, and shall cause Contractor Personnel to, specifically comply with all applicable federal, state, and local environmental, employment, safety and zoning laws, rules, and regulations. Without limiting the foregoing, to the extent required by Applicable Laws, and as applicable to the Work performed under this Agreement, Contractor shall, and shall require Contractor Personnel to, comply with the following: |
12
(a) |
Equal Opportunity: Executive Order 11246, the Equal Opportunity Clause prescribed in 41 CFR 60-1.4(d) (race, color, religion, sex and national origin); 41 CFR 60-1.7 (filing the Employer Information Report annually); 41 CFR 60-1.8 (non-segregated facilities); 41 CFR 60-1.40 (establishment of a written affirmative action plan); 41 CFR 60-741.5 (workers with disabilities); 48 CFR Chapter 1 Subpart 19.7 (Small Business and Small Disadvantaged Business Concerns); Executive Order 12138 (women-owned businesses); |
(b) |
Labor: The Fair Labor Standards Act of 1938, as amended and related regulations; |
(c) |
Immigration: The Immigration Reform and Control Act of 1986 and related regulations; |
(d) |
Anti-Drug Plan and Drug Testing: 46 CFR Parts 4, 5, and 16 and 49 CFR Parts 40 and 199 (requirements of the U.S. Coast Guard, the U.S. Department of Transportation); |
(e) |
Occupational Safety: The Occupational Safety and Health Act and all regulations promulgated thereunder, including, without limitation, those regulating the handling and use of asbestos or asbestos-containing material, 40 CFR Part 61 Subparts A and M, 29 CFR 1926 (Construction, Industrial Standards for Asbestos), 29 CFR 1910.1001 (Asbestos), 29 CFR 1910.134 (Respiratory Protection) 29 CFR Subpart K (Medical) and all other applicable state rules and regulations for the abatement of asbestos materials; |
(f) |
Water Pollution: The Clean Water Act, as amended, The Oil Pollution Act of 1990, the Federal Water Pollution Control Act; |
(g) |
Hazardous Substances and Wastes: The Resource Conservation and Recovery Act of 1976, as amended by the Used Oil Recycling Act of 1980, the Solid Waste Disposal Act Amendments of 1980, the Hazardous and Solid Waste Amendments of 1984, the Hazardous Materials Transportation Act, as amended, the Toxic Substance Control Act, as amended; the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended by the Superfund Amendments and Re-authorization Act of 1986; |
(h) |
Air Pollution: The Clean Air Act, as amended; |
(i) |
Executive Order 13496 Compliance: 29 CFR Part 471; |
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(j) |
Where applicable, all Department of Homeland Security provisions including, but not limited to Transportation Worker Identification Credential; and |
(k) |
Where applicable, the requirements of 41 CFR 60-300.5(a) which prohibits discrimination against qualified protected veterans, and requires affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified protected veterans. |
16.2 |
Contractor and all Contractor Personnel performing any Work or operation or maintenance work on the LAR Interconnecting Pipelines or Pipeline Facilities (as defined in 49 CFR 192 and 195) pursuant to this Agreement will: (a) comply with the Accountable Pipeline Safety and Partnership Act of 1996 (the Pipeline Safety Act ), 49 CFR Parts 192 or 195; (b) meet the U.S. Department Transportations Operator qualification requirements and Companys qualification requirements by being qualified by the National Center for Construction Education Research, Operator Qualification Solutions Group, or any other qualification program approved by Company; and (c) create and retain required records under the Pipeline Safety Act and any regulations or rules promulgated in accordance therewith. |
16.3 |
In the event any provision of this Agreement is inconsistent with or contrary to any Applicable Law or order of a court of competent jurisdiction, said provision shall be deemed to be modified to the extent required to comply with said law, rule, regulation, or order, and this Agreement as so modified will remain in full force and effect. |
17.0 |
Force Majeure |
17.1 |
In the event Contractor is rendered unable by Force Majeure to carry out its obligations under this Agreement, other than its obligation to indemnify or make money payments, then Contractor shall give Company prompt written notice of the Force Majeure with full particulars concerning it; thereupon, the obligations of Contractor, so far as they are affected by the Force Majeure, shall be suspended during, but not longer than, the continuance of the Force Majeure. Contractor shall use all reasonable dispatch to remedy the Force Majeure situation as quickly as possible; provided, however, Contractor shall not be required to settle any strike or other labor dispute contrary to its wishes. Until such Force Majeure has concluded or otherwise been resolved, Contractor shall, upon request by Company, provide Company with reasonably detailed information regarding the status of the Force Majeure and all mitigation steps taken by Contractor. |
18.0 |
Subcontracting |
18.1 |
Contractor may hire contractors and subcontractors to perform the Work, but Contractor is solely responsible and shall timely provide for payment to such contractors and subcontractors. Contractor shall provide Company with adequate advance notice of the identity of each contractor or subcontractor to be hired to |
14
perform Work, and any other information reasonably required or requested by Company with respect to such contractors and subcontractors. Company may reject any contractors and subcontractors, with or without cause. Contractor shall not employ or continue to employ any contractor or subcontractor rejected by Company to perform the Work hereunder. Contractors and subcontractors hired by Contractor shall not be deemed to be servants, employees, or representatives of Company, but shall be required by Contractor to perform the Work (or applicable portions thereof) on terms consistent with the terms of this Agreement; provided, however, Contractor shall remain responsible for acts and omissions of such contractors and subcontractors, and the performance or breach of Contractors obligations under this Agreement by such contractors and subcontractors. |
19.0 |
Notices |
19.1 |
All notices or requests or consents provided for by, or permitted to be given pursuant to, this Agreement must be in writing and must be given by depositing same in the United States mail, addressed to the Party to be notified, postpaid, and registered or certified with return receipt requested or by delivering such notice in person or by confirmed e-mail to such Party. Notice given by personal delivery or mail shall be effective upon actual receipt. Notice given by e-mail shall be effective upon actual confirmed receipt if received during the recipients normal business hours or at the beginning of the recipients next business day after actual confirmed receipt if received other than during the recipients normal business hours. All notices to be sent to a Party pursuant to this Agreement shall be sent to or made at the address set forth below or at such other address as such Party may stipulate to the other Party in the manner provided in this Section 19.1 . |
Company |
Contractor |
|
Tesoro SoCal Pipeline Company LLC 19100 Ridgewood Parkway San Antonio, TX 78259 Attention: General Counsel |
Tesoro Refining & Marketing Company LLC 19100 Ridgewood Parkway San Antonio, TX 78259 Attention: General Counsel |
20.0 |
Confidentiality |
20.1 |
Each Party shall use reasonable efforts to retain the other Parties Confidential Information in confidence and not disclose the same to any third party nor use the same, except as authorized by the disclosing Party in writing or as expressly permitted in this Article 20.0 . Each Party further agrees to take the same care with the other Partys Confidential Information as it does with its own, but in no event less than a reasonable degree of care. Excepted from these obligations of confidence and non-use is that information which: |
a) |
is available, or becomes available, to the general public without fault of the receiving Party; |
15
b) |
was in the possession of the receiving Party on a non-confidential basis prior to receipt of the same from the disclosing Party (it being understood, for the avoidance of doubt, that this exception shall not apply to information of Contractor that was in the possession of Company or any of its affiliates as a result of their ownership or operation of the LAR Interconnecting Pipelines prior to the Effective Date); |
c) |
is obtained by the receiving Party without an obligation of confidence from a third party who is rightfully in possession of such information and, to the receiving Partys knowledge, is under no obligation of confidentiality to the disclosing Party; or |
d) |
independently developed by the receiving Party without reference to or use of the disclosing Partys Confidential Information. |
20.2 |
For purposes of this Article 20.0 , a specific item of Confidential Information shall not be deemed to be within the foregoing exceptions merely because it is embraced by, or underlies, more general information in the public domain or in the possession of the receiving Party. |
20.3 |
Notwithstanding Section 20.1 above, if the receiving Party becomes legally compelled to disclose the Confidential Information by a court, governmental authority or Applicable Law, or is required to disclose by the listing standards of any applicable securities exchange, any of the disclosing Partys Confidential Information, the receiving Party shall promptly advise the disclosing Party of such requirement to disclose Confidential Information as soon as the receiving Party becomes aware that such a requirement to disclose might become effective, in order that, where possible, the disclosing Party may seek a protective order or such other remedy as the disclosing Party may consider appropriate in the circumstances. The receiving Party shall disclose only that portion of the disclosing Partys Confidential Information that it is required to disclose and shall cooperate with the disclosing Party in allowing the disclosing Party to obtain such protective order or other relief. |
20.4 |
Upon written request by the disclosing Party, all of the disclosing Partys Confidential Information in whatever form shall be returned to the disclosing Party upon termination or expiration of this Agreement or destroyed with destruction certified by the receiving Party, without the receiving Party retaining copies thereof except that one copy of all such Confidential Information may be retained by a Partys legal department solely to the extent that such Party is required to keep a copy of such Confidential Information pursuant to Applicable Law, and the receiving Party shall be entitled to retain any Confidential Information in the electronic form or stored on automatic computer back-up archiving systems during the period such backup or archived materials are retained under such Partys customary procedures and policies; provided, however, that any Confidential Information retained by the receiving Party shall be maintained subject to confidentiality pursuant to the terms of this Article 20.0 , and such archived or back-up Confidential Information shall not be accessed except as required by Applicable Law. |
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20.5 |
The receiving Party will limit access to the Confidential Information of the disclosing Party to those of its employees, attorneys and contractors that have a need to know such information in order for the receiving Party to exercise or perform its rights and obligations under this Agreement (the Receiving Party Personnel ). The Receiving Party Personnel who have access to any Confidential Information of the disclosing Party will be made aware of the confidentiality provision of this Agreement, and will be required to abide by the terms thereof. Any third party contractors that are given access to Confidential Information of a disclosing Party pursuant to the terms hereof shall be required to sign a written agreement pursuant to which such Receiving Party Personnel agree to be bound by the provisions of this Agreement, which written agreement will expressly state that it is enforceable against such Receiving Party Personnel by the disclosing Party. |
20.6 |
The provisions of this Article 20.0 shall survive the termination or expiration of this Agreement for a period of two (2) years. |
21.0 |
Governing Law; Exclusive Jurisdiction |
21.1 |
The laws of the State of Texas, without giving effect to principles of conflict of laws, shall govern all matters arising under this Agreement, including but not limited to the validity, interpretation and enforcement of this Agreement, the rights and obligations of the Parties hereunder. |
21.2 |
EACH PARTY HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY FEDERAL COURT OF COMPETENT JURISDICTION SITUATED IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS, SAN ANTONIO DIVISION, OR IF SUCH FEDERAL COURT DECLINES TO EXERCISE OR DOES NOT HAVE JURISDICTION, IN THE DISTRICT COURT OF BEXAR COUNTY, TEXAS. THE PARTIES EXPRESSLY AND IRREVOCABLY SUBMIT TO THE JURISDICTION OF SAID COURTS AND IRREVOCABLY WAIVE ANY OBJECTION WHICH THEY MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT BROUGHT IN SUCH COURTS, IRREVOCABLY WAIVE ANY CLAIM THAT ANY SUCH ACTION, SUIT OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM AND FURTHER IRREVOCABLY WAIVE THE RIGHT TO OBJECT, WITH RESPECT TO SUCH CLAIM, ACTION, SUIT OR PROCEEDING BROUGHT IN ANY SUCH COURT, THAT SUCH COURT DOES NOT HAVE JURISDICTION OVER SUCH PARTY. THE PARTIES HEREBY IRREVOCABLY CONSENT TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF TEXAS. NOTHING CONTAINED HEREIN SHALL AFFECT THE RIGHT TO SERVE PROCESS IN ANY MANNER PERMITTED BY LAW. |
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21.3 |
EACH PARTY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY PROCEEDINGS RELATING TO THIS AGREEMENT OR ANY PERFORMANCE OR FAILURE TO PERFORM OF ANY OBLIGATION HEREUNDER. |
22.0 |
Miscellaneous |
22.1 |
This Agreement may be executed in one or more counterparts (including by facsimile or portable document format (pdf)), each of which counterparts will be deemed an original, but all of which counterparts together will constitute one and the same agreement. Except as specifically provided herein, it is expressly understood that the provisions of this Agreement do not impart any enforceable rights in anyone who is not a Party or successor or permitted assignee of a Party. Neither Party may assign any of its rights or obligations under this Agreement without the other Partys consent, which consent shall not be unreasonably withheld, conditioned, or delayed. |
23.0 |
Contract in Entirety |
23.1 |
This Agreement sets forth the full and complete agreement of the Parties as to the Work, but shall not alter, amend, or change the Transportation Services Agreement or any other commercial agreement between the Parties. |
24.0 |
Modifications or Waivers |
24.1 |
This Agreement may be amended or modified only by a written instrument executed by the Parties. Any of the terms and conditions of this Agreement may be waived in writing at any time by the Party entitled to the benefits thereof. No waiver of any of the terms and conditions of this Agreement, or any breach thereof, will be effective unless in writing signed by a duly authorized individual on behalf of the Party against which the waiver is sought to be enforced. No waiver of any term or condition or of any breach of this Agreement will be deemed or will constitute a waiver of any other term or condition or of any later breach (whether or not similar), nor will such waiver constitute a continuing waiver unless otherwise expressly provided. |
25.0 |
Survival |
25.1 |
Article 8.0 through Article 12.0 , and Article 20.0 through Article 25.0 , and all other provisions of this Agreement that by their terms are intended to survive termination or expiration of this Agreement, including any accrued obligations, warranties, representations, and indemnities under this Agreement, shall survive any termination or expiration of this Agreement. |
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26.0 |
Waiver of Certain Damages. |
26.1 |
Notwithstanding anything to the contrary contained herein, no Party shall be liable or responsible to another Party or any member of such other Partys Indemnified Group for any consequential, incidental, or punitive damages, or for loss of profits or revenues (collectively referred to as Special Damages ) incurred by such Party or any member of such Partys Indemnified Group that arise out of or relate to this Agreement, regardless of whether any such claim arises under or results from contract, negligence, or strict liability of the Party whose liability is being waived hereby; provided that the foregoing limitation is not intended and shall not affect Special Damages actually awarded to a third party or assessed by a governmental authority and for which a Party or any member of such Partys Indemnified Group is properly entitled to indemnification from another Party pursuant to the express provisions of this Agreement. |
27.0 |
Severability |
27.1 |
Whenever possible, each provision of this Agreement will be interpreted in such manner as to be valid and effective under Applicable Law, but if any provision of this Agreement or the application of any such provision to any Person or circumstance will be held invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, such invalidity, illegality or unenforceability will not affect any other provision hereof, and the Parties will negotiate in good faith with a view to substitute for such provision a suitable and equitable solution in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid, illegal or unenforceable provision. |
28.0 |
Construction |
28.1 |
In interpreting this Agreement, unless the context expressly requires otherwise, all of the following apply to the interpretation of this Agreement: |
a) |
Preparation of this Agreement has been a joint effort of the Parties and the resulting Agreement against one of the Parties as the drafting Party. |
b) |
Plural and singular words each include the other. |
c) |
Masculine, feminine and neutral genders each include the others. |
d) |
The word or is not exclusive and includes and/or. |
e) |
The words includes and including are not limiting. |
f) |
References to the Parties include their respective successors and permitted assignees. |
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g) |
The headings in this Agreement are included for convenience and do not affect the construction or interpretation of any provision of, or the rights or obligations of a Party under, this Agreement. |
[Signatures follow.]
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THIS AGREEMENT is executed by duly authorized representatives as of the Effective Date.
Tesoro SoCal Pipeline Company LLC | Tesoro Refining & Marketing Company LLC | |||||
By: |
/s/ Steven M. Sterin |
By: |
/s/ Stephan E. Tompsett |
|||
Name: | Steven M. Sterin | Name: | Stephan E. Tompsett | |||
Title: | President and Chief Financial Officer | Title: | Vice President and Treasurer |
Signature Page
Construction Service Agreement
Exhibit A
Minimum Insurance Requirements for Contractors
All contractors hired by or acting on behalf of Contractor will strictly adhere to all insurance requirements as outlined in this Exhibit A . At a minimum, Contractor shall require its contractors to obtain and maintain during the term of this Agreement the following:
1. |
Workers Compensation and Employers Liability: |
a. |
Statutory requirements in the jurisdiction where the operations are conducted. This includes coverage under the U.S. Longshore and Harbor Workers Compensation Act as well as the Outer Continental Shelf Lands Act with voluntary compensation for marine operations to include transportation, wages, maintenance and cure, and Jones Act Coverage where required. |
b. |
Coverage B Employers Liability with a minimum limit of $1,000,000.00. |
c. |
Endorsement to include a waiver of subrogation in favor of Contractor and Company. |
2. |
Commercial General Liability: |
a. |
Minimum combined single limit of $1,000,000.00 per occurrence for bodily injury or property damage liability. Deductible or self-retention amount must be shown on certificate of insurance. |
b. |
Blanket Contractual liability specifically covering the indemnities contained in this Agreement. |
c. |
Products and Completed Operations coverage. |
d. |
Personal Injury coverage. |
e. |
Premises/operations coverage. |
f. |
Explosion, blasting, underground damage and collapse coverage. |
g. |
Broad form property damage. |
h. |
Contractor and Company named as additional insured. |
i. |
Endorsement to include a waiver of subrogation in favor of Contractor and Company. |
3. |
Commercial Automobile Liability: |
a. |
Coverage for all owned and non-owned, hired vehicles. |
Exhibit A
Construction Service Agreement
b. |
Minimum combined single limit of $1,000,000.00 per occurrence for bodily injury and property damage liability. Deductible or a self-retention amount must be shown on certificate. |
c. |
If applicable, Motor Carrier Policies of Insurance for Public Liability Endorsement (Motor Carrier Act of 1980) with Minimum Limits of $1,000,000 Bodily Injury and Property Damage per occurrence. |
d. |
Contractor and Company named as additional insured. |
e. |
Endorsement to include a waiver of subrogation in favor of Contractor and Company. |
4. |
Excess (Umbrella) Liability: |
a. |
Limits of Liability not less than $4,000,000.00 per occurrence. |
b. |
Contractor and Company named as additional insured. |
c. |
Additional excess limits may be utilized to supplement inadequate limits in the primary policies required in Items 1(b), 2(a) and 3(b) above. |
d. |
Endorsement to include a waiver of subrogation in favor of Contractor and Company. |
5. |
Pollution Legal Liability (if applicable to the Work): |
a. |
Limits of Liability not less than $2 million per occurrence. |
Exhibit A
Construction Service Agreement
Exhibit B
Scope of Work
LAR Interconnecting Pipelines
The LAR Interconnecting Pipelines shall be as detailed herein and in the Contractor AFE number 142100023, effective as of the date hereof (the AFE ), including the TECHNICAL OBJECTIVES Document Rev 7. The design and layout will comply with that provided in the AFE, all applicable permit conditions, with such further revisions as may be mutually agreed upon by the Parties.
The Work includes all lines routed between the Carson tank farm and Wilmington tank farm. The Work commences at the transfer pump discharge to the tank manifold in Carson or Wilmington. The scope of the Work includes:
a) |
two underground bores under both Alameda Street and Sepulveda Avenue; |
b) |
pipeline bundles to include 6 process pipes (line 701, 702, 704,706, 707,709), 2 spare pipes, and 2 conduits for instrumentation communication; |
c) |
pigging stations that contain 6 launchers and 6 receivers; |
d) |
new pump for transferring butylene on line 706; |
e) |
two new pumps for transferring propylene on line 707; and |
f) |
new piping, valving, instrumentation, leak detection to support the installation above. |
Exhibit B
Construction Service Agreement
Exhibit C
Payment for Work
Contractor shall be compensated for the performance of the Work as set forth below:
Company will pay Contractor a fixed fee in the amount of $39,775,388.61 (the Construction Fee ). The Construction Fee shall be due and payable as set forth in Section 3.2 .
Exhibit C
Construction Service Agreement
Exhibit D
Rights of Way, Permits, Easements and Licenses
1. Franchise granted to Tesoro Refining & Marketing Company LLC by the City of Carson, California, by Ordinance No. 09-1416, dated February 3, 2009, as amended by Ordinance No. 17-1629, dated July 18, 2017
2. Pipeline Easement Agreement, dated August 7, 2017, from Kinder Morgan Tank Storage Services LLC, as Grantor, to Tesoro SoCal Pipeline Company LLC, as Grantee
3. Joint Revocable Permit, dated as of August 30, 3017, issued by the City of Los Angeles, California and the City of Long Beach, California, to Tesoro SoCal Pipeline Company LLC as Permittee
4. Agreement (Audit No. 282105), dated May 20, 2016, between Union Pacific Railroad Company, as Licensor and Tesoro SoCal Pipeline Company LLC, as Licensee, as amended by Supplemental Agreement, dated July 3, 2017.
5. License Agreement, dated August 6, 2018 between Tesoro Refining & Marketing Company LLC, as Licensor, and Tesoro Logistics Operations LLC and Tesoro SoCal Pipeline Company LLC, collectively, as Licensees
Exhibit D
Construction Service Agreement
Exhibit 10.4
Execution Version
TRANSPORTATION SERVICES AGREEMENT
( LAR Interconnecting Pipelines )
This TRANSPORTATION SERVICES AGREEMENT (this Agreement ) is dated as of August 6, 2018, by and between Tesoro SoCal Pipeline Company LLC, a Delaware limited liability company ( Provider ) and Tesoro Refining & Marketing Company LLC, a Delaware limited liability company ( Customer ), Provider and Customer may each be referred to herein as a Party and collectively as the Parties .
RECITALS
WHEREAS , on the date hereof, Customer will contribute certain assets and interests to Andeavor Logistics LP, a Delaware limited partnership (the Partnership ), and the Partnership will contribute those assets and interests to Provider, all on the terms and conditions set forth in that certain Contribution, Conveyance and Assumption Agreement dated as of the date hereof;
WHEREAS , on the date hereof, the Parties will execute a Construction Services Agreement pursuant to which Customer will construct and place into service the LAR Interconnecting Pipelines;
WHEREAS , Provider will from and after the date hereof operate the LAR Interconnecting Pipelines pursuant to this Agreement; and
WHEREAS , Provider and Customer desire to enter into this Agreement with respect to the LAR Interconnecting Pipelines to memorialize the terms of their commercial relationship.
NOW, THEREFORE , in consideration of the covenants and obligations contained herein, the Parties hereby agree as follows:
1. DEFINITIONS
The definitions set forth below shall apply whenever a capitalized term specified below is used in this Agreement.
Agreement has the meaning set forth in the Preamble.
Applicable Law means any applicable statute, law, regulation, ordinance, rule, determination, judgment, rule of law, order, decree, permit, approval, concession, grant, franchise, license, requirement, or any similar form of decision of, or any provision or condition of any permit, license or other operating authorization issued by any Governmental Authority having or asserting jurisdiction over the matter or matters in question, whether now or hereafter in effect.
Barrel means a volume equal to 42 U.S. gallons of 231 cubic inches each, at 60 degrees Fahrenheit under one atmosphere of pressure.
bpd means Barrels per day.
Business Day means a day, other than a Saturday or Sunday, on which banks in New York, New York are open for the general transaction of business.
Capacity Expansion has the meaning set forth in Section 3(c) .
Capacity Resolution has the meaning set forth in Section 14(c) .
Carson Refinery Unit means Customers refinery unit located in Los Angeles, California, which is located to the west of Alameda Boulevard, as further described on Schedule A .
Commencement Date has the meaning set forth in Section 4 .
Confidential Information means all confidential, proprietary or non-public information of a Party, whether set forth in writing, orally or in any other manner, including all non-public information and material of such Party (and of companies with which such Party has entered into confidentiality agreements) that another Party obtains knowledge of or access to, including non-public information regarding products, processes, business strategies and plans, customer lists, research and development programs, computer programs, hardware configuration information, technical drawings, algorithms, know-how, formulas, processes, ideas, inventions (whether patentable or not), trade secrets, schematics and other technical, business, marketing and product development plans, revenues, expenses, earnings projections, forecasts, strategies, and other non-public business, technological, and financial information.
Control means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities, by contract, or otherwise.
Customer has the meaning set forth in the Preamble.
Customer Indemnitee(s) has the meaning set forth in Section 16(a) .
Customer Termination Notice has the meaning set forth in Section 13(b) .
Dedicated Capacity has the meaning set forth in Section 3(b) .
DOT means the U.S. Department of Transportation.
Extension Period has the meaning set forth in Section 5(a) .
First Offer Period has the meaning set forth in Section 12(e) .
Force Majeure means circumstances not reasonably within the control of Provider and which, by the exercise of due diligence, Provider is unable to prevent or overcome that prevent performance of Providers obligations hereunder, including: acts of God, strikes, lockouts or other industrial disturbances, wars, riots, fires, floods, storms, orders of courts or Governmental Authorities, explosions, terrorist acts, breakage, accident to machinery, storage tanks or lines of pipe and inability to obtain or unavoidable delays in obtaining material or equipment and similar events.
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Force Majeure Notice has the meaning set forth in Section 13(a) .
Force Majeure Period has the meaning set forth in Section 13(a) .
FERC means the Federal Energy Regulatory Commission.
Governmental Authority means any federal, state, local or foreign government or any provincial, departmental or other political subdivision thereof, or any entity, body or authority exercising executive, legislative, judicial, regulatory, administrative or other governmental functions or any court, department, commission, board, bureau, agency, instrumentality or administrative body of any of the foregoing.
Indemnified Group shall be the Provider Indemnitees or the Customer Indemnitees, as applicable.
Initial Capacity has the meaning set forth in Section 3(b) .
Initial Term has the meaning set forth in Section 5(a) .
LAR Interconnecting Pipelines or Los Angeles Refinery Interconnecting Pipelines means the pipelines that Provider owns and operates as depicted and further described on Schedule A and located in Los Angeles, California, which interconnect tanks and refining units within the Refinery.
MAOP has the meaning set forth in Section 2(c)(i) .
Month means the period commencing on the Commencement Date and ending on the last day of the calendar month in which service begins and each successive calendar month thereafter.
Notice Period has the meaning set forth in Section 15 .
Partnership has the meaning set forth in the Recitals.
Partnership Change of Control means Andeavor ceases to Control the general partner of the Partnership.
Party and Parties each have the meaning set forth in the Preamble.
Person means any individual, partnership, limited partnership, joint venture, corporation, limited liability company, limited liability partnership, trust, unincorporated organization or Governmental Authority or any department or agency thereof.
Products means DGO (sweet gasoil), light cycle oil (LCO) and URD (hydrocracker feed), naphtha/blend components, butylene, propylene (RGP), and butane, in each case, to the extent permitted under the applicable Transportation Service Order.
Provider has the meaning set forth in the Preamble.
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Provider Indemnitee(s) has the meaning set forth in Section 16(b) .
Receiving Party Personnel has the meaning set forth in Section 20(d) .
Refinery means Customers refinery located in Los Angeles, California, consisting of the Carson Refinery Unit and the Wilmington Refinery Unit.
Restoration has the meaning set forth in Section 14(b)(iii) .
Special Damages has the meaning set forth in Section 11(a) .
Surcharge has the meaning set forth in Section 6(e)(i) .
Suspension Notice has the meaning set forth in Section 15 .
Term has the meaning set forth in Section 5(a) .
Termination Notice has the meaning set forth in Section 13(a) .
Transportation Right of First Refusal has the meaning set forth in Section 12(e) .
Transportation Services Fee has the meaning set forth in Section 6(a) .
Transportation Service Order has the meaning set forth in Section 7(a) .
Wilmington Refinery Unit means Customers refinery unit located in Los Angeles, California, which is located to the east of Alameda Boulevard, as further described on Schedule A .
2. TRANSPORTATION SERVICES; SCHEDULING; OPERATIONS
(a) Transportation Services .
(i) The services provided by Provider pursuant to this Agreement shall consist of the transportation and throughput of Products on the LAR Interconnecting Pipelines, including operation of pumps and other ancillary facilities to effectuate such transportation, as set forth on a Transportation Service Order.
(ii) Subject to Force Majeure, interruptions for routine repair and maintenance consistent with customary refined petroleum products pipeline standards, and any applicable regulatory requirements, Provider shall throughput all Products that Customer requests Provider to transport on the LAR Interconnecting Pipelines up to the Dedicated Capacity of the LAR Interconnecting Pipelines. As set forth in an applicable Transportation Service Order, Provider shall be responsible for pumping the Products identified on such Transportation Service Order through the LAR Interconnecting Pipelines sufficient for their movement from the origin to the final destination. Customer shall be responsible for making arrangements for the scheduling, origin and destination of Products shipped through the LAR Interconnecting Pipelines.
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(b) Scheduling . Provider and Customer shall coordinate and mutually agree with each other regarding shipment schedules, the LAR Interconnecting Pipelines and the Refinery. Provider shall not be obligated to make any shipment at any time when a connecting tank, any LAR Interconnecting Pipeline, or a Refinery unit is not prepared to deliver or receive it, as applicable, or when doing so would result in an unsafe operating condition.
(c) Operations .
(i) From time to time, Provider may designate a maximum allowable operating pressure (MAOP) on each of the LAR Interconnecting Pipelines, which may be changed by Provider in its sole discretion upon prior notice to Customer; provided, however, that if Provider should ever reduce the maximum operating pressure of the LAR Interconnecting Pipelines such that Provider is no longer capable of maintaining the Dedicated Capacity of the LAR Interconnecting Pipelines, then Customer may exercise its rights and remedies under Section 14 below. As of the date hereof, the designated maximum operating pressure for each of the LAR Interconnecting Pipelines is set forth on Schedule A. Customer shall not deliver any Products into the LAR Interconnecting Pipelines at a pressure that exceeds or could cause the LAR Interconnecting Pipelines to exceed its MAOP, and in the event that Customer determines that an ongoing delivery through the LAR Interconnecting Pipelines may exceed the MAOP of the LAR Interconnecting Pipelines, Customer shall immediately shut down the delivery and cause the pressure to be reduced. Customer shall immediately notify Provider any time the MAOP of the LAR Interconnecting Pipelines has been exceeded. Provider shall conduct all pumping operations in accordance with applicable DOT regulations, using adequately trained and qualified personnel.
(ii) Customer shall be responsible for providing all linefill in the LAR Interconnecting Pipelines and for providing all materials for line flushing and pushing products movements through the LAR Interconnecting Pipelines to their destination and for any required line flushes. Customer shall be solely responsible for receiving, handling and disposing of any transmix generated in connection with operation of the LAR Interconnecting Pipelines. If Provider determines, in its sole discretion, that Products must be removed from the LAR Interconnecting Pipelines to accommodate any inspections or repairs, then Customer shall promptly comply with such requests.
(iii) Provider shall have no obligation to measure volume gains or losses of Products in the normal course of transportation, and shall have no liability to Customer for physical losses of or degradation of Products, losses resulting from the negligent or wrongful acts and omissions of Provider, its agents, employees or contractors or breach of this Agreement or any applicable Transportation Service Order by Provider, its agents, employees or contractors; provided that Provider shall not be responsible to Customer for any Product losses and/or shortages for which Customer is compensated by its insurance carrier. Provider will not provide insurance for Customers Products.
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3. EXCLUSIVE USE; RESERVED CAPACITY; PRODUCT SPECIFICATIONS
(a) Exclusive Use . Subject to Applicable Law, during the Term, the LAR Interconnecting Pipelines shall be dedicated exclusively to the use of Customer, and Provider shall not use any portion of the LAR Interconnecting Pipelines to provide services for any third party. The LAR Interconnecting Pipelines shall be used exclusively by Customer for throughput of volumes within the Refinery in support of Customers operations.
(b) Capacity . Provider represents to Customer that as of the Commencement Date, the average throughput capacity of the LAR Interconnecting Pipelines is set forth on Schedule A (as may be amended) (the Initial Capacity ). Provider agrees to reserve the entire throughput capacity of the LAR Interconnecting Pipelines (including any increase in the throughput capacity of the LAR Interconnecting Pipelines in connection with a Capacity Expansion) for throughput of Products by Customer. As of the Commencement Date, the dedicated capacity of the LAR Interconnecting Pipelines shall equal the Initial Capacity, as may be amended or modified in a Transportation Service Order ( Dedicated Capacity ).
(c) Capacity Expansion . Customer may at any time make a written request to Provider to increase the throughput capacity of the LAR Interconnecting Pipelines or to construct any new pipelines within the Refinery (a Capacity Expansion ), and shall include in such written request the parameters and specifications of the requested Capacity Expansion. Upon receiving such a request, Provider shall promptly evaluate the relevant factors related to such request, including, without limitation: engineering and design criteria; limitations affecting such Capacity Expansion and any related tankage; cost and financing factors; and the effect of such Capacity Expansion on the overall operation of, and regulations applicable to, the LAR Interconnecting Pipelines. If Provider determines that such a Capacity Expansion is operationally feasible, Provider shall present a proposal to Customer concerning the design of such Capacity Expansion, its projected costs and how such costs might be funded by or recovered from Customer. If Provider determines that such a Capacity Expansion is not operationally feasible, it shall provide Customer with an explanation of and justification for why it made such determination. If Provider notifies Customer that the Capacity Expansion may be operationally feasible, the Parties shall negotiate reasonably and in good faith to determine appropriate terms and conditions for the Capacity Expansion, which shall include, without limitation, the scope of the Capacity Expansion, the appropriate timing for constructing the Capacity Expansion, and a mechanism for Provider to recover its costs plus a reasonable return on capital associated with such Capacity Expansion, which may include, without limitation, direct funding of all or part of the costs by Customer and an increase in the Transportation Services Fee. Any agreed upon Capacity Expansion hereunder shall be set forth in a Transportation Service Order.
(d) Product Specifications . Customer shall not deliver and/or throughput any Products which: (i) would in any way be injurious to the LAR Interconnecting Pipelines; (ii) would render the LAR Interconnecting Pipelines unfit for its customary usages; or (iii) may not be lawfully delivered and/or throughput at the LAR Interconnecting Pipelines.
4. COMMENCEMENT DATE
The commencement date of this Agreement shall be August 6, 2018 ( Commencement Date ).
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5. TERM
(a) The initial term of this Agreement shall commence on the Commencement Date and shall continue through August 6, 2028 (the Initial Term ); provided, however, that Customer may, at its option, extend the Initial Term for up to two (2) renewal terms of five (5) years each (each, an Extension Period ) by providing written notice of its intent to Provider no less than three hundred sixty-five (365) calendar days prior to the end of the Initial Term or the then-current Extension Period. The Initial Term and any Extension Period shall be referred to herein as the Term .
(b) If Customer has not provided written notice of its intent to extend the Initial Term for the first Extension Period pursuant to Section 5(a) , Provider may, at its option, provide written notice to Customer no less than ninety (90) days prior to the end of the Initial Term to extend the Initial Term for an additional two (2) years and, if exercised, such additional two (2) years shall be considered part of the Term of the Agreement.
6. FEES AND REIMBURSEMENT FOR CAPITAL EXPENDITURES
(a) Transportation Services Fee . Commencing as of the Commencement Date, Customer shall pay a Monthly fee as set forth in a Transportation Service Order (the Transportation Services Fee ), to reserve all of the Dedicated Capacity of the LAR Interconnecting Pipelines pursuant to the terms and conditions of this Agreement. Such fee shall include all pumping and shipment between and within the Refinery on the LAR Interconnecting Pipelines. The Transportation Services Fee shall be payable by Customer on a Monthly basis throughout the Term, regardless of the actual volumes of Products throughput by Provider on behalf of Customer; provided, however, that the Parties shall from time to time negotiate an appropriate adjustment to the Transportation Services Fee if the following conditions are met: (i) Customer requires the full Dedicated Capacity; (ii) the full Dedicated Capacity is not available to Customer for any reason (other than any reason resulting from or relating to actions or inactions by Customer); and (iii) Provider is unable to otherwise accommodate the actual volumes of Products required to be throughput by Customer pursuant to the terms of this Agreement. Such adjustment to the Transportation Services Fee shall be made in proportion to the reduction in Dedicated Capacity for any time period compared with the Dedicated Capacity then in effect for the LAR Interconnecting Pipelines. (For example, if the Transportation Services Fee applicable to the Dedicated Capacity of the LAR Interconnecting Pipelines is $0.80 per Barrel per Month x 345,000 Barrels = $276,000, and if the Dedicated Capacity in the then-applicable Transportation Service Order is 301,000 Barrels, and if the Dedicated Capacity falls 10% to 270,900, then the Transportation Services Fee during the period in which the full Dedicated Capacity is not available to Customer for any reason (other than any reason resulting from or relating to actions or inactions by Customer) would be reduced by 10% to $248,400.) Prior to the calculation of a reduced Transportation Services Fee in the manner set forth above, there shall have been at least a consecutive thirty (30) day interruption in service. Any such adjustment to the Transportation Services Fee pursuant to this Section 6(a) may be set forth in a Transportation Service Order or as otherwise documented by the Parties.
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(b) Index-Based Changes . All fees set forth in this Agreement and any Transportation Service Order shall be increased on July 1 of each year of the Term, commencing on July 1, 2019, by a percentage equal to the greater of zero or the positive change in the CPI-U (All Urban Consumers) for the prior calendar year, as reported by the U.S. Bureau of Labor Statistics and rounded to the nearest one-tenth (1/10) of one percent (1%).
(c) Reimbursement for Requested Expenditures . Customer shall reimburse Provider for the actual cost of any expenditures that Provider agrees to make upon Customers request. The means of paying such reimbursement shall be set forth in a Transportation Service Order, and may include direct reimbursement, either before or after Provider incurs such expenditures or an additional ongoing fee to reimburse Provider for its expenditures.
(d) Reimbursement for Newly Imposed Taxes And Regulations . Customer shall promptly pay or reimburse Provider for any newly imposed taxes, levies, royalties, assessments, licenses, fees, charges, surcharges and sums due of any nature whatsoever (other than income taxes, gross receipt taxes and similar taxes) by any federal, state or local government or agency that Provider incurs on Customers behalf for the services provided by Provider under this Agreement or any Transportation Service Order. If Provider is required to pay any of the foregoing, Customer shall promptly reimburse Provider in accordance with the payment terms set forth in this Agreement. Any such newly imposed taxes or regulatory fees shall be specified in an applicable Transportation Service Order.
(e) Surcharges .
(i) If, during the Term, any existing laws or regulations are changed or any new laws or regulations are enacted that require Provider to make substantial and unanticipated expenditures (whether capitalized or otherwise) with respect to the LAR Interconnecting Pipelines or the services provided pursuant to this Agreement or any Transportation Service Order, Provider may, subject to the terms of this Section 6(e) , impose a surcharge to increase the applicable service fees ( Surcharge ) to cover Customers pro rata share of the cost of complying with these laws or regulations, based upon the percentage of Customers use of the services or facilities impacted by such new laws or regulations.
(ii) Provider shall notify Customer of any proposed Surcharge to be imposed pursuant to Section 6(e)(i) sufficient to cover the cost of any required capital or expense projects for the LAR Interconnecting Pipelines and any ongoing increased operating costs. The Parties then shall negotiate in good faith for up to thirty (30) days to mutually determine the effect of the change in law or regulation or new law or regulation, the cost thereof, and how such cost shall be amortized at an interest rate of no more than nine percent (9%), collectively, as a Surcharge, with the understanding that the Parties shall use their reasonable commercial efforts to mitigate the impact of, and comply with, these laws and regulations. Without limiting the foregoing, if expenditures requiring a Surcharge may be avoided or reduced through changes in operations, then the Parties shall negotiate in good faith to set forth the appropriate changes in a Transportation Service Order to evidence the reduction of the amount of a Surcharge while leaving the Parties in the same relative economic position they held before the laws or regulations were changed or enacted.
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(iii) In the event any Surcharge results in less than a fifteen percent (15%) increase in the applicable service fees, Customer will be assessed such Surcharge on all future invoices during the period in which such Surcharge is in effect for the applicable amortization period, and Provider shall not terminate the affected service from this Agreement.
(iv) In the event any Surcharge results in a fifteen percent (15%) or more increase in the applicable service fees, Provider shall notify Customer of the amount of the Monthly Surcharge required to reimburse Provider for its costs, plus carrying costs, together with reasonable supporting detail for the nature and amount of any such Surcharge.
(A) If within thirty (30) days of such notification provided in Section 6(e)(iv) , Customer does not agree to pay such Surcharge or to reimburse Provider up front for its costs, Provider may elect to either:
(1) require Customer to pay such Surcharge, up to a fifteen percent (15%) increase in the applicable service fees; or
(2) terminate the service under this Agreement to which the Surcharge applies, upon notice to Customer.
(B) Providers performance obligations under this Agreement shall be suspended or reduced during the above thirty (30)-day period to the extent that Provider would be obligated to make such expenditures to continue performance during such period.
(v) Following a resolution with respect to the amount and manner of payment of a Surcharge pursuant to this Section 6 , the Parties shall execute an appropriate Transportation Service Order memorializing the terms of such resolution.
(vi) In lieu of paying the Surcharge in connection with any required capital project, Customer may, at its option, elect to pay the full cost of the substantial and unanticipated expenditures upon completion of the applicable project.
7. TRANSPORTATION SERVICE ORDERS
(a) Description . On the date hereof, Provider and Customer shall enter one or more transportation service orders for the LAR Interconnecting Pipelines substantially in the form attached hereto as Exhibit 1 (each, a Transportation Service Order ). The Parties may agree to enter into additional Transportation Service Orders following the date hereof. Upon a request by Customer pursuant to this Agreement or as deemed necessary or appropriate by Provider in connection with the services to be delivered pursuant hereto, Provider shall generate a Transportation Service Order to set forth the specific terms and conditions for providing the applicable services described therein and the applicable fees to be charged for such services. No Transportation Service Order shall be effective until fully executed by both Provider and Customer.
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(b) Conflicts . In case of any conflict between the terms of this Agreement and the terms of any Transportation Service Order, the terms of the applicable Transportation Service Order shall govern.
8. INVOICE AND PAYMENTS
Provider shall invoice Customer for services provided pursuant to this Agreement or any Transportation Service Order on a monthly basis and Customer shall pay all amounts due under this Agreement and any Transportation Service Order no later than ten (10) calendar days after Customers receipt of Providers invoices. Any past due payments owed by Customer shall accrue interest, payable on demand, at the lesser of (a) the rate of interest announced publicly by JPMorgan Chase Bank, in New York, New York, as JPMorgan Chase Banks prime rate (which Parties acknowledge and agree is announced by such bank and used by the Parties for reference purposes only and may not represent the lowest or best rate available to any of the customers of such bank or the Parties), plus four percent (4%), and (b) the highest rate of interest (if any) permitted by Applicable Law, from the due date of the payment through the actual date of payment.
9. CUSTODY TRANSFER AND TITLE
(a) Custody . Provider shall be deemed to have custody of any Product being transported through the LAR Interconnecting Pipelines to the nominated destination at the time as the applicable Product enters the inlet flange of the applicable LAR Interconnecting Pipeline and until the time as the applicable Product enters the outlet flange of the applicable LAR Interconnecting Pipeline. Upon redelivery of any Products to Customers account, Customer shall become solely responsible for any loss, damage or injury to Person or property or the environment, arising out of transportation, possession or use of such Products after transfer of custody.
(b) Title to Products . Title and risk of loss to all Customers Products received at the LAR Interconnecting Pipelines shall remain with Customer at all times. Both Parties acknowledge that this Agreement represents a bailment of Products by Customer to Provider and not a consignment of same, it being understood that Provider has no authority hereunder to sell or seek purchasers for Products of Customer. Customer hereby warrants that it shall, at all times, have good title to and the right to deliver Products pursuant to the terms of this Agreement and any Transportation Service Order.
(c) Lien Waiver . Provider hereby waives, relinquishes and releases any and all liens, including without limitation, any and all warehousemans liens, custodians liens, rights of retention and/or similar rights under all Applicable Laws, which Provider would or might otherwise have under or with respect to the Products throughput or handled hereunder. Provider further agrees to furnish documents reasonably acceptable to Customer and its lender(s) (if applicable), and to reasonably cooperate with Customer in assuring and demonstrating that Products titled in Customers name shall not be subject to any lien on the LAR Interconnecting Pipelines or Providers Products throughput through the LAR Interconnecting Pipelines.
(d) Title to LAR Interconnecting Pipelines . Customer acknowledges that Customer has or acquires no right, title or interest in or to the LAR Interconnecting Pipelines, except the right to deliver Products through the LAR Interconnecting Pipelines as set forth herein; provided, however, that this limitation does not apply to the underlying fee title of lands on which the LAR Interconnecting Pipelines are located. Provider shall retain control of the LAR Interconnecting Pipelines at all times.
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(e) Operation of Portions of LAR Interconnecting Pipelines Owned by Customer . To the extent that Customer remains the owner or holder of any right of way or permits rights or a party to any franchise agreement associated with the LAR Interconnecting Pipelines, Customer shall not voluntarily assign, release or relinquish any right of way, franchise or permits rights held by Customer and required for operation of the LAR Interconnecting Pipelines. Customer shall pay all fees and costs required to maintain such right of way, franchise or permits and shall comply in all material respects with any insurance requirements or other obligations under such right of way, franchise or permits. Provider shall reimburse Customer for any fees, costs, insurance premiums, ad valorem or other related real property taxes or other liabilities that Customer incurs by reason of holding such right of way or permit or being a party to any franchise agreement. Provider agrees to comply in all respects with any covenants or other obligations under such rights of way, permits or franchise agreements until the earlier of the expiration of such rights of way, permits or franchise agreements or Provider obtaining its own rights of way, permit or franchise agreement.
10. REGULATORY MATTERS AND APPLICABLE LAW
(a) Regulatory Matters . As of the date of this Agreement, the shipment of Products on the LAR Interconnecting Pipelines is not subject to regulation by the FERC or the State of California. Provider shall provide services relating to the LAR Interconnecting Pipelines only to Customer in connection with the operation of the Refinery, and Provider shall not offer services relating to the LAR Interconnecting Pipelines to the public or third parties. Notwithstanding the above, in the event Provider should ever be required to file a tariff with any Governmental Authority with respect to the LAR Interconnecting Pipelines, to the maximum extent permitted under Applicable Law, Provider shall ensure that any such tariffs do not prejudice any of Customers rights under the terms of this Agreement.
(b) Compliance with Applicable Law . The Parties are entering into this Agreement and any Transportation Service Order in reliance upon and shall fully comply with all Applicable Law which directly or indirectly affect the Products to be throughput hereunder, or any receipt, throughput delivery, transportation, handling or storage of Products hereunder or the ownership, operation or condition of the LAR Interconnecting Pipelines. Each Party shall fully comply with all Applicable Law associated with such Partys respective performance hereunder and the maintenance and operation of such Partys facilities. In the event any action or obligation imposed upon a Party under this Agreement or any Transportation Service Order shall at any time be in conflict with any requirement of Applicable Law, then this Agreement or any Transportation Service Order, shall immediately be modified to conform the action or obligation so adversely affected to the requirements Applicable Law, and all other provisions of this Agreement and/or any Transportation Service Order shall remain effective.
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(c) Material Change in Applicable Law . If during the Term, any new Applicable Law becomes effective or any existing Applicable Law are or its interpretations is materially changed, which change is not addressed by another provision of this Agreement or any Transportation Service Order and has a material adverse economic impact upon a Party, either Party, acting in good faith, shall have the option to request renegotiation of the relevant provisions of this Agreement or such Transportation Service Order with respect to future performance. The Parties shall then meet and negotiate in good faith amendments to this Agreement that will conform this Agreement to the new Applicable Law while preserving the Parties economic, operational, commercial and competitive arrangements in accordance with the understandings set forth herein.
11. LIMITATION ON LIABILITY AND LIMITATION OF WARRANTIES
(a) No Special Damages . Notwithstanding anything to the contrary contained herein, no Party shall be liable or responsible to another Party or any member of such other Partys Indemnified Group for any consequential, incidental, or punitive damages, or for loss of profits or revenues (collectively referred to as Special Damages ) incurred by such Party or any member of such Partys Indemnified Group that arise out of or relate to this Agreement, REGARDLESS OF WHETHER ANY SUCH CLAIM ARISES UNDER OR RESULTS FROM CONTRACT, NEGLIGENCE, OR STRICT LIABILITY OF THE PARTY WHOSE LIABILITY IS BEING WAIVED HEREBY; provided that the foregoing limitation is not intended and shall not affect Special Damages actually awarded to a third party or assessed by a Governmental Authority and for which a Party or any member of such Partys Indemnified Group is properly entitled to indemnification from another Party pursuant to the express provisions of this Agreement.
(b) No Guarantees or Warranties . EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NO PARTY MAKES ANY GUARANTEES OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WHETHER ARISING BY OPERATION OF LAW OR OTHERWISE. PROVIDER SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY AND/OR ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.
12. TERMINATION; RIGHT TO ENTER INTO NEW AGREEMENT
(a) Termination for Default . A Party shall be in default under this Agreement if:
(i) the Party materially breaches any provision of this Agreement or a Transportation Service Order, which breach has a material adverse effect on the other Party (with such material adverse effect being determined based on this Agreement and all Transportation Service Orders considered as a whole), and such breach is not excused by Force Majeure or cured within fifteen (15) Business Days after notice thereof (which notice shall describe such breach in reasonable detail) is received by such Party (unless such failure is not capable of being cured in a commercially reasonable manner within such fifteen (15) Business Day period in which case such Party shall have commenced remedial action to cure such breach and shall continue to diligently and timely pursue the completion of such remedial action after such notice); or
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(ii) the Party (A) files a petition or otherwise commences, authorizes or acquiesces in the commencement of a proceeding or cause of action under any bankruptcy, insolvency, reorganization or similar Applicable Law, or has any such petition filed or commenced against it; (B) makes an assignment or any general arrangement for the benefit of creditors; (C) otherwise becomes bankrupt or insolvent (however evidenced); or (D) has a liquidator, administrator, receiver, trustee, conservator or similar official appointed with respect to it or any substantial portion of its property or assets.
(b) Rights upon Default . If a Party is in default as described above, then the non-defaulting Party may: (i) terminate this Agreement upon notice to the defaulting Party; (ii) withhold any payments due to the defaulting Party under this Agreement and/or any Transportation Service Order; and/or (iii) pursue any other remedy at law or in equity.
(c) Obligation to Cure Breach . If a Party breaches any provision of this Agreement or a Transportation Service Order, which breach does not have a material adverse effect on the other Party, the breaching Party shall still have the obligation to cure such breach.
(d) New Transportation Services Agreement . Upon termination of this Agreement for reasons other than (i) a default by Customer, or (ii) any other termination of this Agreement initiated by Customer except upon a default by Provider, Customer shall have the right to require Provider to enter into a new transportation services agreement with Customer that (A) is consistent with the terms set forth in this Agreement, (B) relates to the LAR Interconnecting Pipelines, and (C) has commercial terms that are, in the aggregate, equal to or more favorable to Provider than fair market value terms as would be agreed by similarly-situated parties negotiating at arms length; provided, however; that the term of any such new transportation services agreement shall not extend beyond August 6, 2038.
(e) Transportation Right of First Refusal . In the event that Provider proposes to enter into a transportation services agreement regarding the LAR Interconnecting Pipelines with a third party upon termination of this Agreement for reasons other than (i) a default by Customer, or (ii) any other termination of this Agreement initiated by Customer except upon a default by Provider, Provider shall give Customer 90 days prior written notice of any proposed new transportation services agreement with a third party, including (A) details of all of the material terms and conditions thereof and (B) a thirty (30)-day period (beginning upon Customers receipt of such written notice) (the First Offer Period ) in which Customer may make a good faith offer to enter into a new transportation agreement with Provider for the LAR Interconnecting Pipelines (the Transportation Right of First Refusal ). If Customer makes an offer on terms no less favorable to Provider than the third-party offer with respect to such transportation services agreement during the First Offer Period, then Provider shall be obligated to enter into a transportation services agreement with Customer on the terms set forth above. If Customer does not exercise its Transportation Right of First Refusal in the manner set forth above, Provider may, for the next ninety (90) days, proceed with the negotiation of the third-party transportation services agreement. If no third party agreement is consummated during such ninety (90) day period, the terms and conditions of this Section 1 2( e) shall again become effective.
(f) Product Removal . Upon termination or expiration of this Agreement, Customer shall promptly remove all of its Products from the LAR Interconnecting Pipelines within thirty (30) days of such termination or expiration.
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13. FORCE MAJEURE
(a) Definitions and Notice . As soon as possible upon the occurrence of a Force Majeure, Provider shall provide Customer with written notice of the occurrence of such Force Majeure (a Force Majeure Notice ). Provider shall identify in such Force Majeure Notice the approximate length of time that Provider reasonably believes in good faith such Force Majeure shall continue (the Force Majeure Period ). If Provider advises in any Force Majeure Notice that it reasonably believes in good faith that the Force Majeure Period shall continue for more than twelve (12) consecutive Months, then, subject to Section 14 below, at any time after Provider delivers such Force Majeure Notice, either Party may terminate the Agreement, but only upon delivery to the other Party of a notice (a Termination Notice ) at least twelve (12) Months prior to the expiration of the Force Majeure Period; provided, however, that such Termination Notice shall be deemed cancelled and of no effect if the Force Majeure ends prior to the expiration of such twelve (12)-Month period. For the avoidance of doubt, neither Party may exercise its right under this Section 13(a) to terminate this Agreement as a result of a Force Majeure if the LAR Interconnecting Pipelines have been restored to working order since the applicable Force Majeure, including pursuant to a Restoration.
(b) Revocation of Customer Termination Notice . Notwithstanding the foregoing, if Customer delivers a Termination Notice to Provider (the Customer Termination Notice ) and, within thirty (30) days after receiving such Customer Termination Notice, Provider notifies Customer that Provider reasonably believes in good faith that it shall be capable of fully performing its obligations under this Agreement within a reasonable period of time and Customer agrees, then the Customer Termination Notice shall be deemed revoked and the applicable portion of this Agreement shall continue in full force and effect as if such Customer Termination Notice had never been given.
14. CAPABILITIES OF LAR INTERCONNECTING PIPELINES
(a) Interruptions of Service . Subject to Force Majeure and interruptions for routine repair and maintenance consistent with customary industry standards, Provider shall use reasonable commercial efforts to minimize the interruption of service on the LAR Interconnecting Pipelines. Provider shall promptly inform Customer of any anticipated partial or complete interruption of service which is projected to extend more than twenty-four (24) hours on any part of the LAR Interconnecting Pipelines affecting Providers ability to receive or deliver Products on the LAR Interconnecting Pipelines, including relevant information about the nature, extent, cause and expected duration of the interruption and the actions Provider is taking to resume full operations; provided that Provider shall not have any liability for any failure to notify, or delay in notifying, Customer of any such matters except to the extent Customer has been materially prejudiced or damaged by such failure or delay. Provider shall have the right to immediately shut down operation of the LAR Interconnecting Pipelines or reduce pressures at any time that it determines, in its sole discretion that such action may be required to protect public health, safety or the environment or to comply with Applicable Law. In such case, Customer shall comply with Providers requests to effectuate such a shutdown or reduction, and the Parties shall cooperate to allow the LAR Interconnecting Pipelines to resume operations in accordance with prudent industry practices and the provisions of this Agreement.
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(b) Maintenance and Repairs .
(i) Provider shall maintain and repair all portions of the LAR Interconnecting Pipelines in accordance with pipeline industry standards and in a manner which allows the LAR Interconnecting Pipelines to be capable, subject to Force Majeure, of shipping, storing and delivering volumes of Products which are no less than the Dedicated Capacity.
(ii) Subject to Force Majeure and interruptions for routine repair and maintenance consistent with customary refined petroleum products pipeline standards, any applicable regulatory requirements, and the other provisions hereunder, Provider shall make the LAR Interconnecting Pipelines continuously available to Customer at all times, and shall ship the volumes of Products nominated by Customer for shipment in the LAR Interconnecting Pipelines upon request.
(iii) If for any reason, including without limitation a Force Majeure event, the throughput capacity of the LAR Interconnecting Pipelines should fall below the Dedicated Capacity, then within a reasonable period of time after the commencement of such reduction, Provider shall make repairs to and/or replace the affected portion of the LAR Interconnecting Pipelines to restore the capacity of the LAR Interconnecting Pipelines to the required Dedicated Capacity ( Restoration ). Except as provided below in Section 1 4 (c) and Section 1 4 (d) , all such Restoration shall be at Providers cost and expense unless the damage creating the need for such repairs was caused by the negligence or willful misconduct of Customer, its employees, agents or customers.
(c) Capacity Resolution . In the event of the failure of Provider to maintain the LAR Interconnecting Pipelines at its Dedicated Capacity, then either Party shall have the right to call a meeting between executives of both Parties by providing at least two (2) Business Days advance written notice. Any such meeting shall be held at a mutually agreeable location and will be attended by executives of both Parties each having sufficient authority to commit his or her respective Party to a Capacity Resolution. At the meeting, the Parties will negotiate in good faith with the objective of reaching a joint resolution for the Restoration of capacity on the affected portion of the LAR Interconnecting Pipelines which will, among other things, specify steps to be taken by Provider to fully accomplish Restoration and the deadlines by which the Restoration must be completed (the Capacity Resolution ). Without limiting the generality of the foregoing, the Capacity Resolution shall set forth an agreed upon time schedule for the Restoration activities. Such time schedule shall be reasonable under the circumstances, consistent with customary pipeline transportation industry standards and shall take into consideration Providers economic considerations relating to costs of the repairs and Customers requirements concerning the operation of the Refinery. In the event that Customers economic considerations justify incurring additional costs to restore the LAR Interconnecting Pipelines in a more expedited manner than the time schedule determined in accordance with the preceding sentence, Customer may require Provider to expedite the Restoration to the extent reasonably possible, subject to Customers payment, in advance, of the estimated incremental costs to be incurred as a result of the expedited time schedule. In the event the Parties agree to an expedited Restoration plan wherein Customer agrees to fund a portion of the Restoration cost, then neither Party shall have the right to terminate this Agreement in connection with a Force Majeure so long as such Restoration is completed with due diligence, and Customer shall pay such portion to Provider in advance based on an estimate
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conforming to reasonable engineering standards applicable to petroleum products pipelines, as applicable. Upon completion, Customer shall pay the difference between the actual portion of Restoration costs to be paid by Customer pursuant to this Section 1 4(c) and the estimated amount paid under the preceding sentence within thirty (30) days after receipt of Providers invoice therefor, or, if appropriate, Provider shall pay Customer the excess of the estimate paid by Customer over Providers actual costs as previously described within thirty (30) days after completion of the Restoration.
(d) Restoration . If at any time after the occurrence of (x) a Partnership Change of Control or (y) a sale of the Refinery, Provider either (i) refuses or fails to meet with Customer within the period set forth in Section 14(c) , (ii) fails to agree to perform a Capacity Resolution in accordance with the standards set forth in Section 14(c) or (iii) fails to perform its obligations in compliance with the terms of a Capacity Resolution, Customer may, as its sole remedy for any breach by Provider of any of its obligations under Section 14(c) , require Provider to complete a Restoration of the LAR Interconnecting Pipelines. Any such Restoration required under this Section 14(d) shall be completed by Provider at Customers cost. Provider shall use commercially reasonable efforts to continue to provide transportation of Products tendered by Customer while such Restoration is being completed. Any work performed by Provider pursuant to this Section 14(d) shall be performed and completed in a good and workmanlike manner consistent with applicable pipeline industry standards and in accordance with all Applicable Laws. Additionally, during such period after the occurrence of (x) a Partnership Change of Control or (y) a sale of the Refinery, Customer may exercise any remedies available to it under this Agreement (other than termination), including the right to immediately seek temporary and permanent injunctive relief for specific performance by Provider of the applicable provisions of this Agreement, including, without limitation, the obligation to make Restorations described herein.
15. SUSPENSION OF REFINERY OPERATIONS
In the event that Customer decides to permanently cease or indefinitely suspend refining operations at the Refinery for a period that shall continue for at least twelve (12) consecutive Months, Customer may provide written notice to Provider of Customers intent to terminate this Agreement (the Suspension Notice ). Such Suspension Notice shall be sent at any time after Customer has publicly announced such cessation or suspension and, upon the expiration of the twelve (12) Month period following the date such notice is sent (the Notice Period ), this Agreement shall terminate and Customer shall not be required to approve any third party use of the LAR Interconnecting Pipelines. If Customer publicly announces, more than two (2) Months prior to the expiration of the Notice Period, its intent to resume operations at the Refinery, then the Suspension Notice shall be deemed revoked and the applicable portion of this Agreement shall continue in full force and effect as if such Suspension Notice had never been delivered.
16. INDEMNITIES
(a) Provider Indemnities . Notwithstanding anything else contained in this Agreement or any Transportation Service Order, Provider shall release, defend, protect, indemnify, and hold harmless Customer and its affiliates and their respective officers, directors, members, managers, employees, agents, contractors, successors, and assigns (except any Provider Indemnitee) (each individually, a Customer Indemnitee , and collectively, the Customer Indemnitees ), from and
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against any and all demands, claims (including third-party claims), losses, costs, suits, or causes of action (including, but not limited to, any judgments, losses, liabilities, fines, penalties, expenses, interest, reasonable legal fees, costs of suit, and damages, whether in law or equity and whether in contract, tort, or otherwise) for or relating to (i) personal or bodily injury to, or death of the employees of Customer or Provider and, as applicable, their customers, representatives, and agents; (ii) loss of or damage to any property, products, material, and/or equipment belonging to Customer or Provider and, as applicable, their carriers, customers, representatives, and agents, and each of their respective affiliates, contractors, and subcontractors; (iii) loss of or damage to any other property, products, material, and/or equipment of any other description, and/or personal or bodily injury to, or death of any other Person or Persons; and with respect to clauses (i) through (iii) above, which is caused by or resulting in whole or in part from the negligent or wrongful acts or omissions of Provider in connection with the ownership or operation of the LAR Interconnecting Pipelines and the services provided hereunder, and, as applicable, its carriers, customers (other than the Customer Indemnitees), representatives, and agents, or those of their respective employees with respect to such matters; and (iv) any losses incurred by Customer due to violations of this Agreement or any Transportation Service Order by Provider, or, as applicable, its carriers, customers (other than Customer), representatives, and agents; PROVIDED THAT PROVIDER SHALL NOT BE OBLIGATED TO INDEMNIFY OR HOLD HARMLESS ANY CUSTOMER INDEMNITEE FROM AND AGAINST ANY CLAIMS TO THE EXTENT THEY RESULT FROM THE BREACH OF CONTRACT, STRICT LIABILITY OR THE NEGLIGENT ACTS, ERRORS OR OMISSIONS OR WILLFUL MISCONDUCT OF SUCH CUSTOMER INDEMNITEE.
(b) Customer Indemnities . Notwithstanding anything else contained in this Agreement or any Transportation Service Order, Customer shall release, defend, protect, indemnify, and hold harmless Provider and its affiliates and their respective officers, directors, members, managers, employees, agents, contractors, successors, and assigns (except any Customer Indemnitee) (each individually, a Provider Indemnitee , and collectively, the Provider Indemnitees ) from and against any and all demands, claims (including third-party claims), losses, costs, suits, or causes of action (including, but not limited to, any judgments, losses, liabilities, fines, penalties, expenses, interest, reasonable legal fees, costs of suit, and damages, whether in law or equity and whether in contract, tort, or otherwise) for or relating to (i) personal or bodily injury to, or death of the employees of Provider or Customer and, as applicable, their carriers, customers, representatives, and agents; (ii) loss of or damage to any property, products, material, and/or equipment belonging to Provider or Customer and, as applicable, their carriers, customers, representatives, and agents, and each of their respective affiliates, contractors, and subcontractors; (iii) loss of or damage to any other property, products, material, and/or equipment of any other description and/or personal or bodily injury to, or death of any other Person or Persons; and with respect to clauses (i) through (iii) above, which is caused by or resulting in whole or in part from the negligent or wrongful acts and omissions of Customer, in connection with Customers and its customers use of the LAR Interconnecting Pipelines and the services provided hereunder, and, as applicable, its carriers, customers, representatives, and agents, or those of their respective employees with respect to such matters; and (iv) any losses incurred by Provider due to violations of this Agreement or any Transportation Service Order by Customer, or, as applicable, its carriers, customers, representatives, and agents; PROVIDED THAT CUSTOMER SHALL NOT BE OBLIGATED TO INDEMNIFY OR HOLD HARMLESS ANY PROVIDER INDEMNITEE FROM AND AGAINST ANY CLAIMS TO THE EXTENT THEY RESULT FROM THE BREACH OF CONTRACT, STRICT LIABILITY OR THE NEGLIGENT ACTS, ERRORS OR OMISSIONS OR WILLFUL MISCONDUCT OF SUCH PROVIDER INDEMNITEE .
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(c) Affiliates . Customer and Provider shall not be considered affiliated or affiliates of one another for purposes of the indemnification provisions set forth in this Agreement.
(d) Written Claim . Neither Party shall be obligated to indemnify the other Party or any member of such other Partys Indemnified Group or be liable to the other Party or any member of such other Partys Indemnified Group unless a written claim for indemnity is delivered to the other Party within ninety (90) days after the date that a claim is reported or discovered, whichever is earlier.
(e) No Limitation . Except as expressly provided otherwise in this Agreement, the scope of these indemnity provisions may not be altered, restricted, limited, or changed by any other provision of this Agreement. The indemnity obligations of the Parties as set out in this Section 16 are independent of any insurance requirements as set out in Section 19 , and such indemnity obligations shall not be lessened or extinguished by reason of a Partys failure to obtain the required insurance coverages or by any defenses asserted by a Partys insurers.
(f) Survival . These indemnity obligations shall survive the termination of this Agreement until all applicable statutes of limitation have run regarding any claims that could be made with respect to the activities contemplated by this Agreement.
(g) Third Party Indemnification . If any Party has the rights to indemnification from a third party, the indemnifying party under this Agreement shall have the right of subrogation with respect to any amounts received from such third-party indemnification claim.
17. ASSIGNMENT; PARTNERSHIP CHANGE OF CONTROL
(a) Customer Assignment . Customer shall not assign any of its rights or obligations under this Agreement without Providers prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed; provided, however, that Customer may assign this Agreement without Providers consent in connection with a sale by Customer of the Refinery so long as the transferee: (i) agrees to assume all of Customers obligations under this Agreement and (ii) is financially and operationally capable of fulfilling the terms of this Agreement, which determination shall be made by Customer in its reasonable judgment.
(b) Provider Assignment . Provider shall not assign any of its rights or obligations under this Agreement without Customers prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed; provided, however, that (i) Provider may assign this Agreement without Customers consent in connection with a sale by Provider of the LAR Interconnecting Pipelines so long as the transferee: (A) agrees to assume all of Providers obligations under this Agreement; (B) is financially and operationally capable of fulfilling the terms of this Agreement, which determination shall be made by Provider in its reasonable judgment; and (C) is not a competitor of Customer; and (ii) Provider shall be permitted to make a collateral assignment of this Agreement solely to secure working capital financing for Provider.
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(c) Notification of Assignment . Any assignment that is not undertaken in accordance with the provisions set forth above shall be null and void ab initio . A Party making any assignment shall promptly notify the other Party of such assignment, regardless of whether consent is required. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns.
(d) Partnership Change of Control . Customers obligations hereunder shall not terminate in connection with a Partnership Change of Control; provided, however, that in the case of any Partnership Change of Control, Customer shall have the option to extend the Term of this Agreement as provided in Section 5 . Provider shall provide Customer with notice of any Partnership Change of Control at least sixty (60) days prior to the effective date thereof.
18. NOTICE
All notices, requests, demands, and other communications hereunder will be in writing and will be deemed to have been duly given: (a) if by transmission by facsimile or hand delivery, when delivered; (b) if mailed via the official governmental mail system, five (5) Business Days after mailing, provided said notice is sent first class, postage pre-paid, via certified or registered mail, with a return receipt requested; (c) if mailed by an internationally recognized overnight express mail service such as Federal Express, UPS, or DHL Worldwide, one (1) Business Day after deposit therewith prepaid; or (d) if by e-mail one Business Day after delivery with receipt confirmed. All notices will be addressed to the Parties at the respective addresses as follows:
If to Customer, to:
Tesoro Refining & Marketing Company LLC
19100 Ridgewood Parkway
San Antonio, Texas 78259
Attention: General Counsel
If to Provider, to :
Tesoro SoCal Pipeline Company LLC
19100 Ridgewood Parkway
San Antonio, Texas 78259
For legal notices :
Attention: General Counsel
For all other notices and communications :
Attention: Don J. Sorensen, Senior Vice President, Logistics
phone: (210) 626-6195
email: Don.J.Sorensen@andeavor.com
or to such other address or to such other Person as either Party will have last designated by notice to the other Party.
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19. INSURANCE
(a) Coverage . At all times during the Term and for a period of two (2) years after termination of this Agreement for any coverage maintained on a claims-made or occurrence basis, Customer shall maintain at its expense the below listed insurance in the amounts specified below, or self-insurance in such amounts as may be agreed pursuant to a Transportation Service Order. Such insurance shall provide coverage to Provider and such policies, other than Workers Compensation Insurance, shall include Provider as an Additional Insured. Each policy shall provide that it is primary to and not contributory with any other insurance, including any self-insured retention, maintained by Provider (which shall be excess) and each policy shall provide the full coverage required by this Agreement and any Transportation Service Order. All such insurance shall be written with carriers and underwriters acceptable to Provider, and eligible to do business in the State of California and having and maintaining an A.M. Best financial strength rating of no less than A- and financial size rating no less than VII; provided that Customer may procure workers compensation insurance from the State of California. All limits listed below are required MINIMUM LIMITS:
(i) Workers Compensation and Occupational Disease Insurance which fully complies with Applicable Law of the State of California, in limits not less than statutory requirements;
(ii) Employers Liability Insurance with a minimum limit of $1,000,000 for each accident, covering injury or death to any employee which may be outside the scope of the workers compensation statute of the jurisdiction in which the workers service is performed, and in the aggregate as respects occupational disease;
(iii) Commercial General Liability Insurance, with minimum limits of $1,000,000 combined single limit per occurrence for bodily injury and property damage liability, or such higher limits as may be required by Provider or by Applicable Law from time to time. This policy shall include Broad Form Contractual Liability insurance coverage which shall specifically apply to the obligations assumed in this Agreement and any Transportation Service Order by Customer;
(iv) Automobile Liability Insurance covering all owned, non-owned and hired vehicles, with minimum limits of $1,000,000 combined single limit per occurrence for bodily injury and property damage liability, or such higher limit(s) as may be required by Customer or by Applicable Law from time to time. Limits of liability for this insurance must be not less than $1,000,000 per occurrence;
(v) Excess (Umbrella) Liability Insurance with limits not less than $4,000,000 per occurrence. Additional excess limits may be utilized to supplement inadequate limits in the primary policies required in items (ii), (iii), and (iv) above;
(vi) Pollution Legal Liability with limits not less than $25,000,000 per loss with an annual aggregate of $25,000,000. Coverage shall apply to bodily injury and property damage including loss of use of damaged property and property that has not been physically injured; cleanup costs, defense, including costs and expenses incurred in the investigation, defense or settlement of claim; and
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(vii) Cargo/Inventory Insurance, with a limit of no less than $1,000,000, which property insurance shall be first-party property insurance to adequately cover all Products owned by Customer throughput through the LAR Interconnecting Pipelines.
(b) Waiver of Subrogation . All such policies must be endorsed with a Waiver of Subrogation endorsement, effectively waiving rights of recovery under subrogation or otherwise, against Provider, and shall contain where applicable, a severability of interest clause and a standard cross liability clause.
(c) Insurance Certificates . Upon execution of this Agreement and prior to the operation of any equipment by Customer, Customer will furnish to Provider, and at least annually thereafter (or at any other times upon request by Provider) during the Term (and for any coverage maintained on a claims-made basis, for two (2) years after the termination of this Agreement or any applicable Transportation Service Order), insurance certificates and/or certified copies of the original policies to evidence the insurance required herein. Such certificates shall be in the form of the Accord Certificate of Insurance, and reflect that they are for the benefit of Provider and shall provide that there will be no material change in or cancellation of the policies unless Provider is given at least thirty (30) days prior written notice. Certificates providing evidence of renewal of coverage shall be furnished to Provider prior to policy expiration.
(d) Self-Insurance . Customer shall be solely responsible for any deductibles or self-insured retention.
20. CONFIDENTIAL INFORMATION
(a) Obligations . Each Party shall use reasonable efforts to retain the other Partys Confidential Information in confidence and not disclose the same to any third party nor use the same, except as authorized by the disclosing Party in writing or as expressly permitted in this Section 20 . Each Party further agrees to take the same care with the other Partys Confidential Information as it does with its own, but in no event less than a reasonable degree of care. Excepted from these obligations of confidence and non-use is that information which:
(i) is available, or becomes available, to the general public without fault of the receiving Party;
(ii) was in the possession of the receiving Party on a non-confidential basis prior to receipt of the same from the disclosing Party (it being understood, for the avoidance of doubt, that this exception shall not apply to information of Provider that was in the possession of Customer or any of its affiliates as a result of their ownership or operation of the LAR Interconnecting Pipelines prior to the Commencement Date);
(iii) is obtained by the receiving Party without an obligation of confidence from a third party who is rightfully in possession of such information and, to the receiving Partys knowledge, is under no obligation of confidentiality to the disclosing Party; or
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(iv) is independently developed by the receiving Party without reference to or use of the disclosing Partys Confidential Information.
For the purpose of this Section 20 , a specific item of Confidential Information shall not be deemed to be within the foregoing exceptions merely because it is embraced by, or underlies, more general information in the public domain or in the possession of the receiving Party.
(b) Required Disclosure . Notwithstanding Section 20(a) above, if the receiving Party becomes legally compelled to disclose the Confidential Information by a court, Governmental Authority or Applicable Law, or is required to disclose by the listing standards of the New York Stock Exchange, any of the disclosing Partys Confidential Information, the receiving Party shall promptly advise the disclosing Party of such requirement to disclose Confidential Information as soon as the receiving Party becomes aware that such a requirement to disclose might become effective, in order that, where possible, the disclosing Party may seek a protective order or such other remedy as the disclosing Party may consider appropriate in the circumstances. The receiving Party shall disclose only that portion of the disclosing Partys Confidential Information that it is required to disclose and shall cooperate with the disclosing Party in allowing the disclosing Party to obtain such protective order or other relief.
(c) Return of Information . Upon written request by the disclosing Party, all of the disclosing Partys Confidential Information in whatever form shall be returned to the disclosing Party upon termination of this Agreement or destroyed with destruction certified by the receiving Party, without the receiving Party retaining copies thereof except that one copy of all such Confidential Information may be retained by a Partys legal department solely to the extent that such Party is required to keep a copy of such Confidential Information pursuant to Applicable Law and the receiving Party shall be entitled to retain any Confidential Information in the electronic form or stored on automatic computer back-up archiving systems during the period such backup or archived materials are retained under such Partys customary procedures and policies; provided, however, that any Confidential Information retained by the receiving Party shall be maintained subject to confidentiality pursuant to the terms of this Section 20 and such archived or back-up Confidential Information shall not be accessed except as required by Applicable Law.
(d) Receiving Party Personnel . The receiving Party will limit access to the Confidential Information of the disclosing Party to those of its employees, attorneys and contractors that have a need to know such information in order for the receiving Party to exercise or perform its rights and obligations under this Agreement (the Receiving Party Personnel ). The Receiving Party Personnel who have access to any Confidential Information of the disclosing Party will be made aware of the confidentiality provision of this Agreement, and will be required to abide by the terms thereof. Any third party contractors that are given access to Confidential Information of a disclosing Party pursuant to the terms hereof shall be required to sign a written agreement pursuant to which such Receiving Party Personnel agree to be bound by the provisions of this Agreement, which written agreement will expressly state that it is enforceable against such Receiving Party Personnel by the disclosing Party.
(e) Survival . The obligation of confidentiality under this Section 20 shall survive the termination of this Agreement for a period of two (2) years.
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21. MISCELLANEOUS
(a) Modification; Waiver . This Agreement and any Transportation Service Orders may be terminated, amended or modified only by a written instrument executed by the Parties. Any of the terms and conditions of this Agreement may be waived in writing at any time by the Party entitled to the benefits thereof. No waiver of any of the terms and conditions of this Agreement, or any breach thereof, will be effective unless in writing signed by a duly authorized individual on behalf of the Party against which the waiver is sought to be enforced. No waiver of any term or condition or of any breach of this Agreement will be deemed or will constitute a waiver of any other term or condition or of any later breach (whether or not similar), nor will such waiver constitute a continuing waiver unless otherwise expressly provided.
(b) Entire Agreement . This Agreement, together with the Schedules, constitutes the entire agreement among the Parties pertaining to the subject matter hereof and supersedes all prior agreements and understandings of the Parties in connection therewith.
(c) Construction and Interpretation . In interpreting this Agreement, unless the context expressly requires otherwise, all of the following apply to the interpretation of this Agreement:
(i) Preparation of this Agreement has been a joint effort of the Parties and the resulting Agreement against one of the Parties as the drafting Party.
(ii) Plural and singular words each include the other.
(iii) Masculine, feminine and neutral genders each include the others.
(iv) The word or is not exclusive and includes and/or.
(v) The words includes and including are not limiting.
(vi) References to the Parties include their respective successors and permitted assignees.
(vii) The headings in this Agreement are included for convenience and do not affect the construction or interpretation of any provision of, or the rights or obligations of a Party under, this Agreement.
(d) Governing Law; Jurisdiction . This Agreement and any Transportation Service Orders shall be governed by the laws of the State of Texas without giving effect to its conflict of laws principles. Each Party hereby irrevocably submits to the exclusive jurisdiction of any federal court of competent jurisdiction situated in the United States District Court for the Western District of Texas, San Antonio Division, or if such federal court declines to exercise or does not have jurisdiction, in the district court of Bexar County, Texas. The Parties expressly and irrevocably submit to the jurisdiction of said Courts and irrevocably waive any objection which they may now or hereafter have to the laying of venue of any action, suit or proceeding arising out of or relating to this Agreement or any Transportation Service Orders brought in such Courts, irrevocably waive any claim that any such action, suit or proceeding brought in any such Court has been brought in an inconvenient forum and further irrevocably waive the right to object, with respect to such claim,
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action, suit or proceeding brought in any such Court, that such Court does not have jurisdiction over such Party. The Parties hereby irrevocably consent to the service of process by registered mail, postage prepaid, or by personal service within or without the State of Texas. Nothing contained herein shall affect the right to serve process in any manner permitted by law.
(e) Counterparts . This Agreement may be executed in one or more counterparts (including by facsimile or portable document format (pdf)) for the convenience of the Parties hereto, each of which counterparts will be deemed an original, but all of which counterparts together will constitute one and the same agreement.
(f) Severability . Whenever possible, each provision of this Agreement will be interpreted in such manner as to be valid and effective under Applicable Law, but if any provision of this Agreement or the application of any such provision to any Person or circumstance will be held invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, such invalidity, illegality or unenforceability will not affect any other provision hereof, and the Parties will negotiate in good faith with a view to substitute for such provision a suitable and equitable solution in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid, illegal or unenforceable provision.
(g) No Third Party Beneficiaries . Except as specifically provided in Section 16 , it is expressly understood that the provisions of this Agreement or any Transportation Service Order do not impart enforceable rights in anyone who is not a Party or successor or permitted assignee of a Party.
(h) WAIVER OF JURY TRIAL . EACH PARTY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY PROCEEDINGS RELATING TO THIS AGREEMENT OR ANY PERFORMANCE OR FAILURE TO PERFORM OF ANY OBLIGATION HEREUNDER.
(i) Schedules . Each of the Schedules attached hereto and referred to herein is hereby incorporated in and made a part of this Agreement as if set forth in full herein.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF , the Parties hereto have duly executed this Agreement as of the date first written above.
TESORO REFINING & MARKETING COMPANY LLC | ||
By: | /s/ Stephan E. Tompsett | |
Name: | Stephan E. Tompsett | |
Title: | Vice President and Treasurer | |
TESORO SOCAL PIPELINE COMPANY LLC | ||
By: | /s/ Steven M. Sterin | |
Name: | Steven M. Sterin | |
Title: | President and Chief Financial Officer |
Signature Page
Transportation Services Agreement
SCHEDULE A
I. Description and Layout of LAR Interconnecting Pipelines
II. Initial Capacity
Line |
Service |
Initial Capacity (000s bpd) |
Maximum Allowable Operating
|
|||
701/71 |
Distillation Gas Oil (DGO) | 45 | 720 | |||
702 | Light Cycle Oil / Unrefined Diesel (Hydrocracker Feed) | 60 | 720 | |||
704 | Naphtha/Blend Components | 53.5 | 720 | |||
706 | Butylene | 10.5 | 720 |
Schedule A
Transportation Services Agreement
707 |
Propylene | 3.6 | 720 | |||
709 |
Butane | 16.3 | 720 | |||
Reserve |
NA | NA | NA | |||
Reserve |
NA | NA | NA |
Schedule A
Transportation Services Agreement
EXHIBIT 1
FORM OF
TRANSPORTATION SERVICE ORDER
This Transportation Service Order is entered as of , by and between Tesoro Refining & Marketing Company LLC, a Delaware limited liability company ( Customer ), and Tesoro SoCal Pipeline Company LLC, a Delaware limited liability company ( Provider ), pursuant to and in accordance with the terms of the Transportation Services Agreement (LAR Interconnecting Pipelines) dated as of August 6, 2018 between Customer and Provider (the Agreement ).
Capitalized terms not otherwise defined herein shall have the meaning set forth in the Agreement.
Pursuant to Section 7 of the Agreement, the Parties agree to the following provisions:
[Insert applicable provisions:
(i) the type of Product applicable to this Transportation Service Order (and any other specific quality specifications for each such Product type);
Line 701/71DGO (Sweet Gasoil)
Line 702Light Cycle Oil (LCO) and URD (Hydrocracker feed)
Line 704Naphtha/Blend Components
Line 706Butylene
Line 707Propylene (RGP)
Line 709 Butane
(ii) the Dedicated Capacity of the LAR Interconnecting Pipelines;
(iii) any Capacity Expansion pursuant to Section 3(c) of the Agreement;
(iv) the Transportation Services Fee pursuant to Section 6(a) of the Agreement;
(v) any reimbursement for requested capital expenditures pursuant to Section 6(c) of the Agreement;
(vi) any reimbursement related to newly imposed taxes and regulations pursuant to Section 6(d) of the Agreement;
(vii) any Surcharge pursuant to Section 6(e) of the Agreement;
(viii) any agreements with respect to the Transportation Service Fee during periods when the full Dedicated Capacity of the LAR Interconnecting Pipelines is unavailable pursuant to Section 6(a) of the Agreement; and
(ix) any other services that may be agreed upon by the Parties.]
Exhibit 1
Transportation Services Agreement
Except as set forth in this Transportation Service Order, the other terms of the Agreement are hereby incorporated by reference and shall continue in full force and effect and shall apply to the terms of this Transportation Service Order.
[SIGNATURE PAGE FOLLOWS.]
Exhibit 1
Transportation Services Agreement
IN WITNESS WHEREOF , the Parties have duly executed this Transportation Service Order as of the date first written above.
Exhibit 1
Transportation Services Agreement
Exhibit 10.5
Execution Version
MASTER UNLOADING AND STORAGE AGREEMENT
This MASTER UNLOADING AND STORAGE AGREEMENT (this Master Agreement ) is made, entered into and effective as of August 6, 2018 (the Effective Date ), by and between Western Refining Pipeline, LLC ( Provider ), and Western Refining Company, L.P. ( Customer ). Provider and Customer shall be referred to herein individually as a Party and collectively as the Parties .
RECITALS
WHEREAS , on the date hereof, Customer will contribute certain assets and interests to Andeavor Logistics LP, a Delaware limited partnership (the Partnership ), and the Partnership will contribute those assets and interests to Provider, all on the terms and conditions set forth in that certain Contribution, Conveyance and Assumption Agreement dated as of the date hereof;
WHEREAS , Provider owns and operates the crude oil unloading station and storage facilities commonly known as the Mesquite Terminal, Yucca Terminal, Mason East Station, and Wink (Jackrabbit) Terminal, for receiving and unloading crude oil from trucks and injection and redelivery into a designated pipeline (each, a Facility and, together, the Facilities );
WHEREAS , subject to the terms and provisions set forth herein, Customer desires to utilize the Facilities to unload crude oil from trucks, store crude oil in operational storage, and have crude oil redelivered into a designated pipeline; and
WHEREAS , subject to the terms and provisions set forth herein, Provider desires to make available the Facilities to Customer and perform the services set forth in this Agreement with respect to each Facility and Customer desires to utilize each such Facility for such services.
AGREEMENT
NOW, THEREFORE , in and for consideration of the premises and mutual covenants contained in this Agreement, Provider and Customer hereby agree as follows:
ARTICLE 1
DEFINITIONS
For the purposes of this Agreement, capitalized terms used herein will have the meaning assigned to such terms below:
Affiliate means an entity that Controls, is Controlled by or is under common Control with, another Person, whether directly or indirectly.
Agreement has the meaning set forth in Section 2.1 .
Applicable Law means any applicable statute, law, regulation, ordinance, rule, determination, judgment, rule of law, order, decree, permit, approval, concession, grant, franchise, license, requirement, or any similar form of decision of, or any provision or condition of any permit, license or other operating authorization issued by any Governmental Authority having or asserting jurisdiction over the matter or matters in question, whether now or hereafter in effect.
Barrel means a volume equal to 42 U.S. gallons of 231 cubic inches each, at 60 degrees Fahrenheit under one atmosphere of pressure.
Business Day means a Day, other than a Saturday or Sunday, on which banks in New York, New York are open for the general transaction of business.
Confidential Information means all confidential, proprietary or non-public information of a Party, whether set forth in writing, orally or in any other manner, including all non-public information and material of such Party (and of companies with which such Party has entered into confidentiality agreements) that another Party obtains knowledge of or access to, including non-public information regarding products, processes, business strategies and plans, customer lists, research and development programs, computer programs, hardware configuration information, technical drawings, algorithms, know-how, formulas, processes, ideas, inventions (whether patentable or not), trade secrets, schematics and other technical, business, marketing and product development plans, revenues, expenses, earnings projections, forecasts, strategies, and other non-public business, technological, and financial information.
Control means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities, by contract, or otherwise.
Crude Oil means crude petroleum conforming to the applicable Federal Energy Regulatory Commission tariff quality specifications of the relevant portion of Customers designated pipeline taking redelivery of such crude oil from the applicable Facility.
Customer has the meaning set forth in the Preamble . For the avoidance of doubt, Customer shall mean such Person with respect to each Facility for so long as such Facility is subject to this Master Agreement.
Customer Group has the meaning set forth in Section 12.1 .
Customer Termination Notice has the meaning set forth in Section 8.2 .
Day shall mean a calendar day.
Effective Date has the meaning set forth in the Preamble .
Event of Default has the meaning set forth in Section 7.3(a) .
Excess Storage Barrels means, with respect to the applicable Facility, the number of Customers Barrels stored in the Tanks at such Facility on any Day that are in excess of the Reserved Capacity for such Facility.
Excess Storage Fee has the meaning set forth in Section 5.2 .
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Extended Term has the meaning set forth in Section 7.1 .
Facility has the meaning set forth in the Recitals .
Fee or Fees has the meaning set forth in Section 5.2 .
Force Majeure means circumstances, whether foreseeable or not, not reasonably within the control of Provider and which, by the exercise of due diligence, Provider is unable to prevent or overcome, that prevent performance of Providers obligations hereunder, including: acts of God, strikes, lockouts or other industrial disturbances, wars, riots, fires, floods, storms, orders of courts or Governmental Authorities, explosions, terrorist acts, accidental disruption of service, breakage, breakdown of machinery, storage tanks or lines of pipe, and inability to obtain or unavoidable delays in obtaining material or equipment and similar events.
Force Majeure Notice has the meaning set forth in Section 8.1 .
Force Majeure Period has the meaning set forth in Section 8.1 .
Governmental Authority means any federal, state, local or foreign government or any provincial, departmental or other political subdivision thereof, or any entity, body or authority exercising executive, legislative, judicial, regulatory, administrative or other governmental functions or any court, department, commission, board, bureau, agency, instrumentality or administrative body of any of the foregoing.
Indemnified Group means the Customer Group or the Provider Group, as applicable.
Initial Term has the meaning set forth in Section 7.1 .
LACT means lease automatic custody transfer.
Master Agreement has the meaning set forth in the Preamble .
Month means a calendar month unless otherwise specified.
Operating Procedures has the meaning set forth in Section 2.4 .
Partnership has the meaning set forth in the Recitals .
Party(ies) has the meaning set forth in the Preamble .
Partnership Change of Control means Andeavor ceases to Control the general partner of the Partnership.
Person means any individual, partnership, limited partnership, joint venture, corporation, limited liability company, limited liability partnership, trust, association or other unincorporated organization, or Governmental Authority or any department or agency thereof.
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Provider has the meaning set forth in the Preamble . For the avoidance of doubt, Provider shall mean such Person with respect to each Facility for so long as such Facility is subject to this Master Agreement.
Provider Group has the meaning set forth in Section 12.2 .
Receiving Party Personnel has the meaning set forth in Section 11.4 .
Reserved Capacity shall mean, with respect to each Facility, the amount of capacity of the Tanks at such Facility that is reserved for Customer hereunder, as set forth for such Facility on Schedule I , including, in each case, required tank heels.
Services has the meaning set forth in Section 2.3 .
Service Order has the meaning set forth in Section 5.1 .
Special Damages has the meaning set forth in Section 12.8 .
Storage Service has the meaning set forth in Section 2.3 .
Surcharge has the meaning set forth in Section 5.5(a) .
Tank or Tanks means, with respect to each Facility, such private crude oil storage tanks located at such Facility and identified in Schedule I .
Term has the meaning set forth in Section 7.1 .
Termination Notice has the meaning set forth in Section 8.1 .
Unloading Service has the meaning set forth in Section 2.2 .
ARTICLE 2
SERVICES; FACILITIES AND OPERATIONS
2.1 For the duration of this Master Agreement, Provider and Customer shall enter into Service Orders as set forth in Section 5.1 , each of which shall create a separate and specific agreement in respect of the services described in such Service Order between Customer and Provider (such separate agreement is hereinafter referred to as an Agreement ). Each Agreement shall consist, collectively, of the terms and conditions set forth in this Master Agreement and the applicable Service Order. Any reference contained herein to this Agreement shall refer to the applicable Agreement between Customer and Provider with respect to the applicable Facility and the services provided by Provider in connection therewith. Provider shall be severally (and not jointly) liable for the obligations of Provider set forth herein with respect to the applicable Agreement and the applicable Facility. Customer shall be severally (and not jointly) liable for the obligations of Customer set forth herein with respect to the applicable Agreement and the applicable Facility.
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2.2 Unloading Service . With respect to each Agreement, during the Term of such Agreement, subject to the terms and conditions of such Agreement, Provider shall make such Facility available to receive and unload Crude Oil from Customers designated trucks, on a 24/7/365 basis (the Unloading Service ).
2.3 Storage Service . With respect to each Agreement, during the Term of such Agreement, subject to the terms and conditions of such Agreement, Provider shall store Crude Oil received and unloaded from Customers designated trucks in dedicated storage up to the applicable Reserved Capacity, and redeliver such Crude Oil from the dedicated storage Tanks at such Facility into the Customers designated pipeline at such Facility (the Storage Service , and together with the Unloading Service and other related work and services, the Services ). With respect to each Agreement, during the Term of such Agreement, the Reserved Capacity for the applicable Facility shall be available for the storage and throughput of Customers Crude Oil. Customers Crude Oil subject to this Agreement shall be stored only in dedicated storage at the applicable Facility. Customer shall be responsible for providing all line fill and tank heels required for the operation of the Tanks at each Facility. Upon termination of the Term of the relevant Agreement, Provider will redeliver to Customer the quantity of line fill and tank heels delivered by Customer to Provider at the applicable Facility, and Customer shall be responsible for removing such quantity from such Facility in accordance with Section 7.5 . At any Facility, at any time after any Crude Oil has been received in a Tank, Provider may, for environmental or safety reasons, move all or any part of such Crude Oil to one or more of the other Tanks within such Facility, at Providers sole cost and expense.
2.4 Operating Procedures and Scheduling .
(a) Operating Procedures for Customer . Customer hereby agrees to strictly abide by any and all laws, regulations, rules, conditions and procedures relating to the operation and use of the applicable Facility that generally apply to receipt, delivery, and storage of Crude Oil at such Facility (the Operating Procedures ).
(b) Operating Procedures for Provider. Provider shall carry out the handling of the Crude Oil at the applicable Facility in accordance with, and storage of such Crude Oil shall at all times be subject to, the Operating Procedures applicable to such Facility.
(c) Scheduling . All scheduling of Customers Crude Oil deliveries into and redeliveries out of any Facility shall be decided by mutual agreement of the Parties, in accordance with Providers standard procedures for such Facility and the terms hereof.
2.5 Service Interruptions . Provider shall use commercially reasonable efforts to minimize the interruption of Services at each Facility. Provider shall promptly inform Customers operational personnel of any anticipated partial or complete interruption of Services at a particular Facility, including relevant information about the nature, extent, cause and expected duration of the interruption and the actions Provider is taking to resume full operations at such Facility, provided that Provider shall not have any liability for any failure to notify, or delay in notifying, Customer of any such matters except to the extent Customer has been materially prejudiced or damaged by such failure or delay.
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2.6 Maintenance and Repairs .
(a) Subject to Force Majeure and interruptions for routine repair and maintenance, consistent with customary terminal industry standards for similar facilities, Provider shall maintain each Facility in good and serviceable condition. Provider may temporarily suspend its obligations hereunder during the occurrence of, and for the entire duration of, a Force Majeure or other interruption of service, to the extent such Force Majeure or other interruption of Services impairs Providers or Providers ability to perform such obligations. Repairs at any Facility shall be at Providers sole cost and expense, unless the damage creating the need for such repairs was caused by the negligence or willful misconduct of Customer, its employees, carriers, contractors, agents, suppliers or customers.
(b) Should Provider take any Tank out of service for regulatory requirements, repair or maintenance, Customer shall be solely responsible for any alternative storage or Crude Oil movements as required and all third party fees associated with such movements.
(c) Each Facility shall be used for its contemplated service of storage of Crude Oil. If any modifications, improvements, vapor recovery, cleaning, degassing, or other preparation of the Tanks at any Facility is performed by Provider at the specific request of Customer to meet Customers particular needs, Customer shall bear all direct costs and capital expenditures attributable thereto, including, without limitation, the cost of engineering, design, construction, equipment and costs of removal, processing, transportation, and disposal of all waste and the cost of any taxes or charges Provider may be required to pay in regard to such waste. Provider may require Customer to pay all such amounts prior to commencement of any requested work on the Tank, or by mutual agreement, the Parties may agree upon an increase in the Fees under the applicable Agreement to reimburse Provider for its costs of such modifications, plus a reasonable return on capital.
2.7 Physical Operations . Customer understands that the Facilities may not be staffed by Provider personnel at all times when deliveries of Crude Oil to a Facility occur, and Customer and its employees, carriers, contractors, agents, suppliers or customers shall be responsible for the physical operations involved with unloading Crude Oil into a Facility when making deliveries of Crude Oil through such Facility. Such personnel shall be adequately trained and qualified, and shall meet all DOT requirements for such positions. Such personnel shall abide by all use restrictions and instructions regarding the operation of such Facility and shall be familiar with the requirements and procedures for operation of all the equipment required to unload trucks or for the storage of Crude Oil at such Facility. Customer hereby agrees to strictly abide by any and all Applicable Laws, regulations, rules, conditions and procedures that generally apply to receipt, delivery and throughput of Crude Oil at such Facility.
2.8 No Warranty . Except as expressly provided in this Agreement, no Party makes any guarantees or warranties of any kind, expressed or implied. Provider specifically disclaims all implied warranties of any kind or nature, including any implied warranty of merchantability and/or any implied warranty of fitness for a particular purpose.
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ARTICLE 3
MEASUREMENT; QUALITY
3.1 Measurement Procedures . Measurement at each Facility shall be made in accordance with Providers standard measurement procedures for such Facility, which shall be in accordance with applicable API standards. Crude Oil received and unloaded at any Facility from Customers designated trucks shall be measured by the LACT unit at such Facility. In the absence of a LACT unit, the trucks meter figure shall be used.
3.2 Quality; Contaminated Crude Oil.
(a) Specifications . Customer warrants that all Crude Oil delivered under this Agreement and any Service Order shall meet the latest applicable specifications for shipment in the Customers designated pipeline with respect to such Crude Oil, or mutually agreed upon specifications, upon receipt at the applicable Facility and contain no deleterious substances or concentrations of any contaminants that may make it or its components commercially unacceptable in general industry application. Customer shall not deliver to any Facility any Crude Oil which: (i) would in any way be injurious to such Facility; (ii) would render such Facility unfit for the proper storage of the Crude Oil; (iii) may not be lawfully stored at such Facility; or (iv) otherwise do not meet applicable specifications for such Crude Oil that are customary in the location of such Facility.
(b) Testing and Analysis . Provider is not obligated to test or perform quality analyses of Crude Oil received into, stored in or delivered out of any Facility on behalf of Customer unless specifically agreed to by the Parties in writing, and any such testing or analyses, including costs thereof, will be for Customers account. In the absence of fraud or manifest error, any quality determination performed by Provider shall be binding on both Parties. Provider is not obligated to accept, and Provider may, without prejudice to any other remedies, reject Customers Crude Oil that fails to conform to the applicable quality specifications of Customer.
(c) Contaminated Crude Oil . Customer may monitor quality of the Crude Oil in accordance with its tariffs and the Operating Procedures, but Provider undertakes no duty to monitor the quality of the Crude Oil as it enters or leaves the applicable Facility.
ARTICLE 4
TITLE AND RISK OF LOSS; VOLUME LOSS
4.1 Title; Custody and Control . Provider shall be deemed to have custody of the Crude Oil at the time it enters the inlet flange of Providers receiving line of the applicable Facilitys truck unloading rack. As between the Parties, Customer shall be deemed to receive custody of Customers Crude Oil at the time it enters Customers designated pipeline, or other connecting pipeline, from such Facility. Upon delivery of Crude Oil for Customers account to Customer, or other connecting pipeline, as between the Parties, Customer shall become solely responsible for any loss or damage to Crude Oil, other property or the environment, or injury or death of Persons, arising out of transportation, handling, possession or use of such Crude Oil after transfer of custody. Subject to Sections 4.2 and 6 respectively, title to and risk of loss for all Customers Crude Oil received at the applicable Facility hereunder shall remain with Customer at all times. Customer hereby warrants that it shall have good title to and the right to deliver, store and receive Crude Oil pursuant to the terms of this Agreement, and that such Crude Oil will meet the specifications set forth in Section 3.2 . Customer acknowledges that, notwithstanding anything to the contrary contained in this Agreement, Customer acquires no right, title or interest in or to any part of the Facilities, except the right to receive, deliver, and store the Crude Oil in the applicable Facility as set forth in the applicable Agreement. Provider (including its Affiliates, successors and permitted assigns) shall retain control of the Facilities at all times.
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4.2 Loss Allowance . Provider shall have no obligation to measure volume gains and losses at any Facility. In the event third-party Crude Oil is stored at a Facility, the Parties shall mutually determine the measurement and volume loss control practices for such Facility. Provider shall be responsible to Customer only for Crude Oil losses and/or shortages resulting from the negligent or wrongful acts and omissions of Provider, its agents, employees or contractors or breach of this Agreement or any applicable Service Order by Provider, its agents, employees or contractors; provided that Provider shall not be responsible to Customer for any Crude Oil losses and/or shortages for which Customer is compensated by its cargo/inventory insurance carrier. If Customer fails to maintain cargo/inventory insurance coverage, then Provider shall also not be responsible to Customer for any Crude Oil losses and/or shortages to the extent Customer would have been compensated by its insurance carrier had Customer maintained a customary level of cargo/inventory insurance coverage. Except as provided for in this Section 4.2 , Customer shall be responsible for all Crude Oil losses and/or shortages it may suffer.
ARTICLE 5
SERVICE ORDERS; FEES; INVOICES
5.1 Description . On the date hereof, Provider and Customer shall enter into one or more service orders for each Facility substantially in the form attached hereto as Exhibit 1 (each, a Service Order ). The Parties may agree to enter into additional Service Orders following the date hereof. Upon a request by Customer pursuant to this Master Agreement or as deemed necessary or appropriate by Provider in connection with the services to be delivered pursuant hereto, Provider shall generate a Service Order to set forth the specific terms and conditions for providing the applicable services described therein and the applicable fees to be charged for such services for any additional services or additional Facilities. No Service Order shall be effective until executed by both Parties to an Agreement.
5.2 Fees . Customer shall pay an unloading fee, storage fee and other fees (collectively Fees and each individually, a Fee ) determined in accordance with one or more Service Orders between the Parties, including fees to reserve, on a firm storage basis, the Reserved Capacity in the Tanks at the applicable Facility, plus fees for Excess Storage Barrels (the Excess Storage Fee ), injection and other services that might be applicable from time to time.
5.3 Fee Increases . With respect to each Agreement, any fees of a fixed amount set forth in such Agreement shall be increased on July 1 of each year of the Term for such Agreement, commencing on July 1, 2019, by a percentage equal to the greater of zero or the positive change, if any, in the CPI-U (All Urban Consumers) for the prior calendar year, as reported by the Bureau of Labor Statistics, and rounded to the nearest one-tenth (1/10) of one percent (1%).
5.4 Reimbursement . Customer shall reimburse Provider for the actual cost of any capital expenditures that Provider agrees to make with respect to any Facility upon Customers request.
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5.5 Surcharge .
(a) General . If, during the Term, any Applicable Laws are changed or any new Applicable Laws are enacted that require Provider to make substantial and unanticipated expenditures (whether capitalized or otherwise) with respect to any Facility or the Services provided at such Facility under the applicable Agreement or any applicable Service Order, Provider may, subject to the terms of this Section 5.5 , impose a surcharge to increase the applicable Fees ( Surcharge ), to cover Customers share of the cost of complying with such Applicable Laws, based upon the percentage of Customers use of such Facility or Services impacted by such Applicable Laws.
(b) Notification and Mitigation . Provider shall notify Customer of any proposed Surcharge to be imposed pursuant to Section 5.5(a) sufficient to cover the cost of any required capital or expense projects for such Facility and any ongoing increased operating costs. Provider and Customer then shall negotiate in good faith for up to thirty (30) Days to mutually determine the effect of the changed or new Applicable Laws, the cost thereof, and how such cost shall be amortized as a Surcharge at an interest rate of no more than nine percent (9%), with the understanding that Provider and Customer shall use their reasonable commercial efforts to mitigate the impact of, and comply with, such Applicable Law. Without limiting the foregoing, if expenditures requiring a Surcharge may be avoided or reduced through changes in operations, then the Parties shall negotiate in good faith to set forth the appropriate changes in a Service Order to evidence the reduction of the amount of a Surcharge while leaving the Parties in the same relative economic position they held before the laws or regulations were changed or enacted.
(c) Less Than 15% Surcharge . In the event any Surcharge results in an increase of less than fifteen percent (15%) in the applicable Fee(s) under the applicable Agreement, Customer will be assessed such Surcharge on all future invoices during the period in which such Surcharge is in effect for the applicable amortization period, and Provider shall not terminate the affected service from this Agreement.
(d) 15% or More Surcharge . In the event any Surcharge results in an increase of fifteen percent (15%) or more in the applicable Fee(s) under the applicable Agreement, then in accordance with Section 5.5(b) , Provider shall notify Customer of the amount of the Surcharge required to reimburse Provider for its costs, plus interest and carrying costs, together with reasonable supporting detail for the nature and amount of any such Surcharge.
(i) If within thirty (30) Days after Providers notification provided in this Section 5.5(d) , Customer notifies Provider that it does not agree to pay such Surcharge, Provider may elect to either:
(A) require Customer to pay such Surcharge, up to a fifteen percent (15%) increase in the applicable Fee(s) under the applicable agreement in the aggregate; or
(B) terminate the service(s) under this Agreement to which the Surcharge applies, upon notice to Customer.
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(ii) Providers performance obligations under this Agreement shall be suspended or reduced during the above thirty (30) Day period to the extent that Provider would be obligated to make such expenditures in order to continue performance during such period.
(e) Following a resolution with respect to the amount and manner of payment of a Surcharge pursuant to this Section 5.5 , the Parties shall execute an appropriate Service Order memorializing the terms of such resolution.
(f) In lieu of paying the Surcharge in connection with any required capital project, Customer may, at its option, elect to pay the full cost of the substantial and unanticipated expenditures upon completion of the applicable project.
5.6 Payments . Provider will invoice Customer on a Monthly basis with respect to each Agreement, and all amounts owed under such Agreement shall be due and payable in full no later than ten (10) Days after Customers receipt of Providers invoice. Any past due payments owed by Customer to Provider shall accrue interest, payable on demand, at the lesser of (i) the rate of interest announced publicly by JPMorgan Chase Bank, in New York, New York, as JPMorgan Chase Banks prime rate (which Parties acknowledge and agree is announced by such bank and used by the Parties for reference purposes only and may not represent the lowest or best rate available to any of the customers of such bank or the Parties), plus four percent (4%), and (ii) the highest rate of interest (if any) permitted by Applicable Law, from the due date of the payment through the actual date of payment.
5.7 Audit and Claims . Each Party and its duly authorized agents and/or representatives shall have reasonable access to the accounting records and other documents maintained by the other Party with related to this Agreement, and shall have the right to audit such records at any reasonable time or times during the Term of the applicable Agreement and for a period of up to three (3) years after termination of the applicable Agreement. Claims as to shortage in quantity or defects in quality shall be made by written notice within ninety (90) days after the delivery in question or shall be deemed to have been waived.
ARTICLE 6
LIENS; TAXES
6.1 Liens . Provider hereby waives, relinquishes and releases any and all liens, including without limitation, any and all warehousemans liens, custodians liens, rights of retention and/or similar rights under all Applicable laws, which Provider would or might otherwise have under or with respect to the Crude Oil stored or handled under this Agreement. Provider further agrees to furnish documents reasonably acceptable to Customer and its lender(s) (if applicable), and to cooperate with Customer in assuring and demonstrating that Crude Oil titled in Customers name shall not be subject to any lien on any Facility or Providers Crude Oil stored or handled at such Facility.
6.2 Taxes . Customer shall promptly pay or reimburse Provider for any newly imposed taxes, levies, royalties, assessments, licenses, fees, charges, surcharges and sums due of any nature whatsoever (other than income taxes, gross receipt taxes and similar taxes) by any federal, state or local government or agency that Provider incurs on Customers behalf for the services provided
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by Provider under this Agreement or any Service Order. If Provider is required to pay any of the foregoing, Customer shall promptly reimburse Provider in accordance with the payment terms set forth in such Agreement. Any such newly imposed taxes or regulatory fees as provided for in this Section 6.2 shall be specified in an applicable Service Order. If Customer is exempt from the payment of any taxes allocated to Customer, Customer shall furnish Provider with the proper exemption certificates.
ARTICLE 7
TERM; TERMINATION
7.1 Term . The initial term of each Agreement associated with a Service Order executed in connection with this Master Agreement shall commence on the Effective Date and shall continue through August 6, 2028 (the Initial Term ); provided, however, that Customer may, at its option, extend the Initial Term of the applicable Agreement for up to two (2) renewal terms of five (5) years each (each, an Extended Term ) by providing written notice of its intent to Provider no less than three hundred sixty-five (365) calendar days prior to the end of the Initial Term or the then-current Extended Term. The Initial Term, and any Extended Term, with respect to each Agreement shall collectively be referred to herein as the Term . If Customer has not provided written notice of its intent to extend the Initial Term for the first Extended Term of the applicable Agreement pursuant to this Section 7.1 , Provider may, at its option, provide written notice to Customer no less than ninety (90) days prior to the end of the Initial Term of the applicable Agreement to extend the Initial Term of the applicable Agreement for an additional two (2) years and, if exercised, such additional two (2) years shall be considered part of the Term of such Agreement.
7.2 Survival . The expiration or termination of any Agreement shall be without prejudice to the rights and obligations of the Parties arising prior to such expiration or termination, and shall not release any Party from any liability or obligation under such Agreement arising prior to such expiration or termination, and any provisions hereof or thereof which expressly or by their nature are intended to extend beyond the expiration or termination of the Term, shall survive such expiration or termination, including the confidentiality and non-use obligations under Section 11 , Customers obligations under Section 7.5 and the provisions of Sections 5.5, 6.1, 6.2 , 7.3 , 11 , 12 , 14.3, 15.3 and 15.7 .
7.3 Termination for Default.
(a) Default. A Party shall be in default under the applicable Agreement if any of the following occurs (each, an Event of Default ):
(i) the Party materially breaches any provision of this Agreement or a Service Order and such breach is not excused by Force Majeure or cured within fifteen (15) Business Days after notice thereof (which notice shall describe such breach in reasonable detail) is received by such Party (unless such failure is not capable of being cured in a commercially reasonable manner within such fifteen (15) Business Day period in which case such Party shall have commenced remedial action to cure such breach and shall continue to diligently and timely pursue the completion of such remedial action after such notice); or
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(ii) the Party (A) files a petition or otherwise commences, authorizes or acquiesces in the commencement of a proceeding or cause of action under any bankruptcy, insolvency, reorganization or similar Applicable Law, or has any such petition filed or commenced against it; (B) makes an assignment or any general arrangement for the benefit of creditors; (C) otherwise becomes bankrupt or insolvent (however evidenced); or (D) has a liquidator, administrator, receiver, trustee, conservator or similar official appointed with respect to it or any substantial portion of its property or assets.
(b) Remedies for Default . If a Party is in default as described above, then the non-defaulting Party may: (i) terminate this Agreement as to the affected Facility upon notice to the defaulting Party; (ii) withhold any payments due to the defaulting Party under this Agreement as to the affected Facility; and/or (iii) pursue any other remedy at law or in equity.
7.4 Obligation to Cure Breach . If a Party breaches any provision of this Agreement or a Service Order, which breach does not have a material adverse effect on the other Party, the breaching Party shall still have the obligation to cure such breach.
7.5 Obligations at Termination . Customer shall, upon expiration or termination of this Agreement, promptly remove all of its Crude Oil from the respective Facility within thirty (30) days of such termination or expiration to the extent such removal is possible within this time frame. In the event all of the Crude Oil is not removed within such thirty (30) day period, Customer shall be assessed storage fees to all Crude Oil held in storage more than thirty (30) days beyond the termination or expiration of this Agreement until such time as the entirety of Customers Crude Oil is removed from the respective Facility; provided however, that Customer shall not be assessed any storage fees associated with the removal of its Crude Oil if Customers ability to remove such products is delayed or hindered by Provider, its agents or contractors for any reason.
ARTICLE 8
FORCE MAJEURE
8.1 Definitions and Notice . If an event of Force Majeure delays or renders Provider unable, in whole or in part, to carry out its obligations under this Agreement with respect to a particular Facility, Provider must give Customer notice and full particulars in writing (a Force Majeure Notice ) as soon as practicable after the occurrence of the causes relied upon, or give initial notice by telephone or e-mail and follow such notice with a written confirmation within forty-eight (48) hours after the occurrence of the event of Force Majeure. Such Force Majeure Notice shall identify the approximate length of time that Provider reasonably believes in good faith such Force Majeure shall continue (the Force Majeure Period ). If Provider advises in any Force Majeure Notice that it reasonably believes in good faith that the Force Majeure Period shall continue for more than twelve (12) consecutive Months, then, at any time after Provider delivers such Force Majeure Notice, either Party may terminate that portion of this Agreement relating to the affected Facility, but only upon delivery to the other Party of a notice (a Termination Notice ); provided , however , that such Termination Notice shall be deemed cancelled and of no effect if the Force Majeure Period ends prior to the expiration of such twelve (12) Month period.
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8.2 Revocation of Customer Termination Notice . Notwithstanding the foregoing, if Customer delivers a Termination Notice to Provider (the Customer Termination Notice ) and, within thirty (30) Days after receiving such Customer Termination Notice, Provider notifies Customer that Provider reasonably believes in good faith that it shall be capable of fully performing its obligations under this Agreement within a reasonable period of time and Customer mutually agrees (which agreement shall not be unreasonably withheld), then the Customer Termination Notice shall be deemed revoked and the applicable portion of this Agreement shall continue in full force and effect as if such Customer Termination Notice had never been given.
ARTICLE 9
ASSIGNMENT
9.1 Assignment by Customer . Customer shall not assign any of its rights or obligations under this Agreement or a Service Order without Providers prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed.
9.2 Assignment by Provider . Provider shall not assign any of its rights or obligations under this Agreement as to the respective Facility without Customers prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed; provided , however , that (i) Provider may assign this Agreement as to the respective Facility without Customers consent in connection with a sale by Provider of such respective Facility so long as the transferee: (A) agrees to assume all of Providers obligations under this Agreement as to such respective Facility; (B) is financially and operationally capable of fulfilling the terms of this Agreement as to such respective Facility, which determination shall be made by Provider in its reasonable judgment; and (C) is not a competitor of Customer; and (ii) Provider shall be permitted to make a collateral assignment of this Agreement as to such respective Facility solely to secure working capital financing for Provider.
9.3 Successors and Assigns . Any assignment that is not undertaken in accordance with the provisions set forth above shall be null and void ab initio . A Party making any assignment shall promptly notify the other Party of such assignment, regardless of whether consent is required. This Agreement any Service Orders shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and permitted assigns.
9.4 Reserved Capacity and Title . Customer may not allow a Person (other than an Affiliate of Customer) to use any of its Reserved Capacity or transfer title of the Crude Oil to a Person (other than an Affiliate of Customer) while the Crude Oil is in a Facility, without the prior written consent of Provider, which consent shall not be unreasonably conditioned, delayed or withheld. If Provider consents to the use of the Reserved Capacity or any part thereof by such Person, Customer shall continue to be liable for all its obligations hereunder, including the Fees payable pursuant to this Agreement and the related Service Orders for the remainder of the Term.
9.5 Partnership Change of Control . Customers obligations hereunder shall not terminate in connection with a Partnership Change of Control; provided, however, that in the case of any Partnership Change of Control, Customer shall have the option to extend the Term of this Agreement as provided in Section 7.1 . Provider shall provide Customer with notice of any Partnership Change of Control at least sixty (60) days prior to the effective date thereof.
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ARTICLE 10
NOTICE
All notices, requests, demands, and other communications hereunder will be in writing and will be deemed to have been duly given: (a) if by transmission by hand delivery, when delivered; (b) if mailed via the official governmental mail system, five (5) Business Days after mailing, provided said notice is sent first class, postage pre-paid, via certified or registered mail, with a return receipt requested; (c) if mailed by an internationally recognized overnight express mail service such as Federal Express, UPS, or DHL Worldwide, one (1) Business Day after deposit therewith prepaid; or (d) if by e-mail, one Business Day after delivery with receipt confirmed. All notices will be addressed to the Parties at the respective addresses as follows:
If to Customer :
Western Refining Company, L.P.
19100 Ridgewood Parkway
San Antonio, Texas 78259
Attention: General Counsel
If to Provider :
Western Refining Pipeline, LLC
19100 Ridgewood Parkway
San Antonio, Texas 78259
For legal notices :
Attention: General Counsel
For all other notices and communications :
Attention: Don J. Sorensen, Senior Vice President, Logistics
phone: (210) 626-6195
email: Don.J.Sorensen@andeavor.com
ARTICLE 11
CONFIDENTIAL INFORMATION
11.1 Obligations . Each Party shall use reasonable efforts to retain the other Partys Confidential Information in confidence and not disclose the same to any third party nor use the same, except as authorized by the disclosing Party in writing or as expressly permitted in this Section 11 . Each Party further agrees to take the same care with the other Partys Confidential Information as it does with its own, but in no event less than a reasonable degree of care. Excepted from these obligations of confidence and non-use is that information which:
(a) is available, or becomes available, to the general public without fault of the receiving Party;
(b) was in the possession of the receiving Party on a non-confidential basis prior to receipt of the same from the disclosing Party;
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(c) is obtained by the receiving Party without an obligation of confidence from a third party who is rightfully in possession of such information and, to the receiving Partys knowledge, is under no obligation of confidentiality to the disclosing Party; or
(d) is independently developed by the receiving Party without reference to or use of the disclosing Partys Confidential Information.
For the purpose of this Section 11 , a specific item of Confidential Information shall not be deemed to be within the foregoing exceptions merely because it is embraced by, or underlies, more general information in the public domain or in the possession of the receiving Party.
11.2 Required Disclosure . Notwithstanding Section 11.1 above, if the receiving Party becomes legally compelled to disclose any Confidential Information by a court or other Governmental Authority or Applicable Law, or is required to disclose by the listing standards of the New York Stock Exchange, any of the disclosing Partys Confidential Information, the receiving Party shall promptly advise the disclosing Party of such requirement to disclose Confidential Information as soon as the receiving Party becomes aware that such a requirement to disclose might become effective, in order that, where possible, the disclosing Party may seek a protective order or such other remedy as the disclosing Party may consider appropriate in the circumstances. The receiving Party shall disclose only that portion of the disclosing Partys Confidential Information that it is legally compelled to disclose and shall reasonably cooperate with the disclosing Party in allowing the disclosing Party to obtain such protective order or other relief.
11.3 Return of Information . Upon written request by the disclosing Party, all of the disclosing Partys Confidential Information with respect to a particular Facility, in whatever form, shall be returned to the disclosing Party or destroyed with destruction certified by the receiving Party upon termination of this Agreement with respect to such Facility, without the receiving Party retaining copies thereof except that one copy of all such Confidential Information may be retained by a Partys legal department solely to the extent that such Party is required to keep a copy of such Confidential Information pursuant to Applicable Law, and the receiving Party shall be entitled to retain any Confidential Information in electronic form or stored on automatic computer back-up archiving systems during the period such backup or archived materials are retained under such Partys customary procedures and policies; provided , however , that any such Confidential Information retained by the receiving Party shall be maintained subject to confidentiality pursuant to the terms of this Section 11 , and such archived or back-up Confidential Information shall not be accessed except as required by Applicable Law.
11.4 Receiving Party Personnel . The receiving Party will limit access to the Confidential Information of the disclosing Party to those of its Affiliates and its and their respective employees, officers, directors, agents, attorneys and contractors that have a need to know such information in order for the receiving Party to exercise or perform its rights and obligations under this Agreement or to comply with Applicable Law (the Receiving Party Personnel ). The Receiving Party Personnel who have access to any Confidential Information of the disclosing Party will be made aware of the confidentiality provision of this Agreement, and will be required to abide by the terms thereof; provided that the receiving Party shall remain primarily liable for any unauthorized use or disclosure of the other Partys Confidential Information by any Receiving Party Personnel. Any
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third-party contractors that are given access to Confidential Information of a disclosing Party pursuant to the terms hereof shall, as a condition of being given access to such Confidential Information, be bound by a written agreement, at least as stringent as the terms of this Section 11 , with respect to such Confidential Information.
11.5 Survival . The obligation of confidentiality under this Section 11 shall survive the termination of this Agreement for a period of two (2) years.
ARTICLE 12
INDEMNIFICATION; DAMAGES LIMITATION
12.1 Provider Indemnities . Notwithstanding anything else contained in this Agreement or any Service Order, Provider shall release, defend, protect, indemnify, and hold harmless Customer and its affiliates and their respective officers, directors, members, managers, employees, agents, contractors, successors, and assigns (excluding any member of the Provider Group) (collectively the Customer Group ), from and against any and all demands, claims (including third-party claims), losses, costs, suits, or causes of action (including, but not limited to, any judgments, losses, liabilities, fines, penalties, expenses, interest, reasonable legal fees, costs of suit, and damages, whether in law or equity and whether in contract, tort, or otherwise) for or relating to (a) personal or bodily injury to, or death of the employees of Customer or Provider and, as applicable, their carriers, customers, representatives, and agents, (b) loss of or damage to any property, products, material, and/or equipment belonging to Customer or Provider, and, as applicable, their carriers, customers, representatives, and agents, and each of their respective affiliates, contractors, and subcontractors, (c) loss of or damage to any other property, products, material, and/or equipment of any other description, and/or personal or bodily injury to, or death of any other Person or Persons; and with respect to clauses (a) through (c) above, which is caused by or resulting in whole or in part from the negligent or wrongful acts or omissions of Provider in connection with the ownership or operation of the applicable Facility and services provided hereunder, and, as applicable, their carriers, customers (other than Customer), representatives, and agents, or those of their respective employees with respect to such matters, and (d) any losses incurred by Customer due to violations of this Agreement or any Service Order by Provider, or, as applicable, its carriers, customers (other than Customer), representatives, and agents; PROVIDED THAT PROVIDER SHALL NOT BE OBLIGATED TO RELEASE, INDEMNIFY OR HOLD HARMLESS CUSTOMER OR ANY MEMBER OF THE CUSTOMER GROUP FROM AND AGAINST ANY CLAIMS TO THE EXTENT THEY RESULT FROM THE BREACH OF CONTRACT, STRICT LIABILITY OR THE NEGLIGENT ACTS, ERRORS OR OMISSIONS OR WILLFUL MISCONDUCT OF CUSTOMER OR ANY MEMBER OF THE CUSTOMER GROUP.
12.2 Customer Indemnities . Notwithstanding anything else contained in this Agreement or any Service Order, Customer shall release, defend, protect, indemnify, and hold harmless Provider and its affiliates and their respective officers, directors, members, managers, employees, agents, contractors, successors, and assigns (excluding any member of the Customer Group) (collectively the Provider Group ) from and against any and all demands, claims (including third-party claims), losses, costs, suits, or causes of action (including, but not limited to, any judgments, losses, liabilities, fines, penalties, expenses, interest, reasonable legal fees, costs of suit, and damages, whether in law or equity and whether in contract, tort, or otherwise) for or relating
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to (a) personal or bodily injury to, or death of the employees of Provider or Customer and, as applicable, their carriers, customers, representatives, and agents; (b) loss of or damage to any property, products, material, and/or equipment belonging to Provider or Customer, and, as applicable, their carriers, customers, representatives, and agents, and each of their respective affiliates, contractors, and subcontractors; (c) loss of or damage to any other property, products, material, and/or equipment of any other description, and/or personal or bodily injury to, or death of any other Person or Persons; and with respect to clauses (a) through (c) above, which is caused by or resulting in whole or in part from the negligent or wrongful acts or omissions of Customer, in connection with Customers use of the applicable Facility and the services provided hereunder and Customers Crude Oil unloaded and stored hereunder, and, as applicable, its carriers, customers, representatives, and agents, or those of their respective employees with respect to such matters; and (d) any losses incurred by Provider due to violations of this Agreement or any Service Order by Customer, or, as applicable, its carriers, customers, representatives, and agents; PROVIDED THAT CUSTOMER SHALL NOT BE OBLIGATED TO RELEASE, INDEMNIFY OR HOLD HARMLESS PROVIDER OR ANY MEMBER OF THE PROVIDER GROUP FROM AND AGAINST ANY CLAIMS TO THE EXTENT THEY RESULT FROM THE BREACH OF CONTRACT, STRICT LIABILITY OR THE NEGLIGENT ACTS, ERRORS OR OMISSIONS OR WILLFUL MISCONDUCT OF PROVIDER OR ANY MEMBER OF THE PROVIDER GROUP.
12.3 No Affiliation . Customer and Provider shall not be considered affiliated or affiliates of one another for purposes of the indemnification provisions set forth in this Agreement.
12.4 Written Claim . Neither Party shall be obligated to indemnify the other Party or any member of such Partys Indemnified Group or be liable to the other Party or any member of such Partys Indemnified Group unless a written claim for indemnity is delivered to the other Party within ninety (90) Days after the date that a claim is reported or discovered, whichever is earlier.
12.5 No Limitation . Except as expressly provided otherwise in this Agreement, the scope of these indemnity provisions may not be altered, restricted, limited, or changed by any other provision of this Agreement. The indemnity obligations of the Parties as set out in this Article 12 are independent of any insurance requirements as set out in Article 13 , and such indemnity obligations shall not be lessened or extinguished by reason of a Partys failure to obtain the required insurance coverages or by any defenses asserted by a Partys insurers.
12.6 Survival . These indemnity obligations shall survive the termination of this Agreement until all applicable statutes of limitation have run regarding any claims that could be made with respect to the activities contemplated by this Agreement.
12.7 Third Party Indemnification . If any Party has the rights to indemnification from a third party, the indemnifying party under this Agreement shall have the right of subrogation with respect to any amounts received from such third-party indemnification claim.
12.8 Limitation on Liability . Notwithstanding anything to the contrary contained herein, no Party shall be liable or responsible to another Party or any member of such Partys Indemnified Group for any consequential, incidental, or punitive damages, or for loss of profits or revenues (collectively referred to as Special Damages ) incurred by such Party or any member of such
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Partys Indemnified Group that arise out of or relate to this Agreement, REGARDLESS OF WHETHER ANY SUCH CLAIM ARISES UNDER OR RESULTS FROM CONTRACT, NEGLIGENCE, OR STRICT LIABILITY OF THE PARTY WHOSE LIABILITY IS BEING WAIVED HEREBY; provided that the foregoing limitation is not intended and shall not affect Special Damages actually awarded to a third party or assessed by a Governmental Authority and for which a Party or any member of such Partys Indemnified Group is properly entitled to indemnification from another Party pursuant to the express provisions of this Agreement.
ARTICLE 13
INSURANCE
13.1 Coverage . With respect to each Facility, at all times during the Term for such Facility and for a period of two (2) years after termination of this Agreement as to such Facility for any coverage maintained on a claims-made or occurrence basis, Customer shall maintain at its expense the below listed insurance in the amounts specified below, or self-insurance in such amounts as may be agreed by the Parties pursuant to a Service Order. Customer shall require that its carriers and its and their respective contractors providing authorized drivers or authorized vehicles carry such insurance, and Customer shall be liable to Provider for their failure to do so. Such insurance shall provide coverage to Provider and such policies, other than Workers Compensation Insurance, shall include Provider as an Additional Insured. Each policy shall provide that it is primary to and not contributory with any other insurance, including any self-insured retention, maintained by Provider (which shall be excess) and each policy shall provide the full coverage required by this Agreement. All such insurance shall be written with carriers and underwriters acceptable to Provider, eligible to do business in the State where the applicable Facility is located and having and maintaining an A.M. Best financial strength rating of no less than A- and financial size rating no less than VII; provided that either Party may procure workers compensation insurance from the state fund of the applicable state where the respective Facility is located. All limits listed below are required MINIMUM LIMITS:
(a) Workers Compensation and Occupational Disease Insurance which fully complies with the law of the state in which the applicable Facility is located, in limits not less than statutory requirements;
(b) Employers Liability Insurance with a minimum limit of $1,000,000 for each accident, covering injury or death to any employee which may be outside the scope of the workers compensation statute of the jurisdiction in which the workers service is performed, and in the aggregate as respects occupational disease;
(c) Commercial General Liability Insurance, with minimum limits of $1,000,000 combined single limit per occurrence for bodily injury and property damage liability, or such higher limits as may be required by Provider or by law from time to time. This policy shall include Broad Form Contractual Liability insurance coverage which shall specifically apply to the obligations assumed in this Agreement by Customer;
(d) Automobile Liability Insurance covering all owned, non-owned and hired vehicles, with minimum limits of $1,000,000 combined single limit per occurrence for bodily injury and property damage liability, or such higher limit(s) as may be required by Customer or by law from time to time. Limits of liability for this insurance must be not less than $1,000,000 per occurrence;
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(e) Excess (Umbrella) Liability Insurance with limits not less than $4,000,000 per occurrence. Additional excess limits may be utilized to supplement inadequate limits in the primary policies required in items (ii), (iii), and (iv) above;
(f) Pollution Legal Liability with limits not less than $25,000,000 per loss with an annual aggregate of $25,000,000. Coverage shall apply to bodily injury and property damage including loss of use of damaged property and property that has not been physically injured; cleanup costs, defense, including costs and expenses incurred in the investigation, defense or settlement of claim; and
(g) Cargo/Inventory Insurance, with a limit of no less than $1,000,000, which property insurance shall be first-party property insurance to adequately cover all Crude Oil owned by Customer in the Facility.
13.2 Waiver of Subrogation . All such policies must be endorsed with a Waiver of Subrogation endorsement, effectively waiving rights of recovery under subrogation or otherwise, against Provider, and shall contain where applicable, a severability of interest clause and a standard cross liability clause.
13.3 Insurance Certificates . Upon execution of this Agreement and prior to the operation of any equipment by Customer, Customer will furnish to Provider, and at least annually thereafter (or at any other times upon request by Provider) during the Term (and for any coverage maintained on a claims-made basis, for two (2) years after the termination of this Agreement as to the applicable Facility), insurance certificates and/or certified copies of the original policies to evidence the insurance required herein. Such certificates shall be in the form of the Accord Certificate of Insurance, and reflect that they are for the benefit of Provider and shall provide that there will be no material change in or cancellation of the policies unless Provider is given at least thirty (30) Days prior written notice. Certificates providing evidence of renewal of coverage shall be furnished to Provider prior to policy expiration.
13.4 Self-Insurance . Customer shall be solely responsible for any deductibles or self-insured retention.
ARTICLE 14
COMPLIANCE WITH LAW AND GOVERNMENT REGULATIONS
14.1 Compliance with Law . Each Party certifies that none of the Crude Oil covered by this Agreement is or will be derived from crude petroleum, petrochemical, or gas which was produced or withdrawn from storage in violation of any Applicable Laws.
14.2 Licenses and Permits . Provider shall maintain all necessary licenses and permits for the unloading and storage of Crude Oil at the Facility.
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14.3 Applicable Law . The Parties are entering into this Agreement in reliance upon and shall fully comply with, all Applicable Law which directly or indirectly affects the Crude Oil throughput hereunder, or any receipt, throughput delivery, transportation, handling or storage of Crude Oil hereunder, or the ownership, operation or condition of the Facility. Each Party shall be responsible for compliance with all Applicable Laws associated with such Partys respective performance hereunder and the operation of such Partys facilities. In the event any obligation imposed upon a Party under this Agreement shall at any time be in conflict with any requirement of Applicable Law, then this Agreement shall immediately be deemed to be modified to conform the obligation so adversely affected to the requirements of the Applicable Law, and all other provisions of this Agreement shall remain effective.
14.4 New or Changed Applicable Law . If during the Term, any new Applicable Law becomes effective or any existing Applicable Law or its interpretation is materially changed, which change is not addressed by another provision of this Agreement and which has a material adverse economic impact upon a Party in connection with its performance of this Agreement, then either Party, acting in good faith, shall have the option to request renegotiation of the relevant provisions of this Agreement with respect to future performance. The Parties shall then meet and negotiate in good faith amendments to this Agreement that will conform this Agreement to such new or changed Applicable Law while preserving the Parties economic, operational, commercial and competitive arrangements in accordance with the understandings originally set forth herein. To the extent that any such new or changed Applicable Law requires Provider to make substantial and unanticipated expenditures (whether capitalized or otherwise) with respect to the Facility or the Services provided hereunder, those effects shall be governed by Article 5 of this Agreement.
ARTICLE 15
GENERAL PROVISIONS
15.1 Modification; Waiver . This Agreement and the related Service Orders may be terminated, amended or modified only by a written instrument executed by the Parties. Any of the terms and conditions of this Agreement or a Service Order may be waived in writing at any time by the Party entitled to the benefits thereof. No waiver of any of the terms and conditions of this Agreement, a Service Order or any breach thereof, will be effective unless in writing signed by a duly authorized individual on behalf of the Party against which the waiver is sought to be enforced. No waiver of any term or condition or of any breach of this Agreement or a Service Order will be deemed or will constitute a waiver of any other term or condition or of any later breach (whether or not similar), nor will such waiver constitute a continuing waiver unless otherwise expressly provided. Notwithstanding the foregoing or anything herein to the contrary, in the event of termination of this Agreement as to a particular Facility in accordance with this Agreement, Schedule I shall be amended to remove such Facility and associated Tanks from the force and effect of this Agreement; provided, however, that this Master Agreement shall remain in full force and effect with respect to the Facilities (and associated Tanks) remaining on Schedule I .
15.2 Entire Agreement . This Agreement, together with the Schedules and Exhibits hereto and the related Service Orders, constitutes the entire agreement between the Parties pertaining to the subject matter hereof and supersedes all prior agreements and understandings of the Parties in connection therewith.
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15.3 Governing Law; Jurisdiction . This Agreement and any applicable Service Orders shall be governed by the laws of the State of Texas without giving effect to its conflict of laws principles. Each Party hereby irrevocably submits to the exclusive jurisdiction of any federal court of competent jurisdiction situated in the United States District Court for the Western District of Texas, San Antonio Division, or if such federal court declines to exercise or does not have jurisdiction, in the district court of Bexar County, Texas. The Parties expressly and irrevocably submit to the jurisdiction of said Courts and irrevocably waive any objection which they may now or hereafter have to the laying of venue of any action, suit or proceeding arising out of or relating to this Agreement or any Service Orders brought in such Courts, irrevocably waive any claim that any such action, suit or proceeding brought in any such Court has been brought in an inconvenient forum and further irrevocably waive the right to object, with respect to such claim, action, suit or proceeding brought in any such Court, that such Court does not have jurisdiction over such Party. The Parties hereby irrevocably consent to the service of process by registered mail, postage prepaid, or by personal service within or without the State of Texas. Nothing contained herein shall affect the right to serve process in any manner permitted by law.
15.4 Counterparts . This Agreement and any Service Orders hereunder may be executed in one or more counterparts (including by facsimile or portable document format (pdf)) for the convenience of the Parties hereto, each of which counterparts will be deemed an original, but all of which counterparts together will constitute one and the same agreement.
15.5 Severability . Whenever possible, each provision of this Agreement and any Service Order will be interpreted in such manner as to be valid and effective under Applicable Law, but if any provision of this Agreement, a Service Order or the application of any such provision to any Person or circumstance is held invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, such invalidity, illegality or unenforceability will not affect any other provision hereof, and the Parties will negotiate in good faith with a view to substitute for such provision a suitable and equitable solution in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid, illegal or unenforceable provision.
15.6 No Third-Party Beneficiaries . Except as provided in Article 12 , is expressly understood that the provisions of this Agreement do not impart enforceable rights in anyone who is not a Party or successor or permitted assignee of a Party.
15.7 WAIVER OF JURY TRIAL . EACH PARTY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY PROCEEDINGS RELATING TO THIS AGREEMENT OR A SERVICE ORDER OR ANY PERFORMANCE OR FAILURE TO PERFORM OF ANY OBLIGATION HEREUNDER.
15.8 Construction and Interpretation . In interpreting this Agreement, unless the context expressly requires otherwise, all of the following apply to the interpretation of this Agreement: (i) preparation of this Agreement has been a joint effort of the Parties and the resulting Agreement against one of the Parties as the drafting Party; (ii) plural and singular words each include the other; (iii) masculine, feminine and neutral genders each include the others; (iv) the word or is not exclusive and includes and/or; (v) the words includes and including are not limiting; (vi) references to the Parties include their respective successors and permitted assignees; and (vii) the headings in this Agreement are included for convenience and do not affect the construction or interpretation of any provision of, or the rights or obligations of a Party under, this Agreement
[Signature Page Follows]
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IN WITNESS WHEREOF , the Parties hereto have duly executed this Agreement as of the Effective Date.
PROVIDER: |
||
Western Refining Pipeline, LLC |
||
By: |
/s/ Steven M. Sterin |
|
Name: Steven M. Sterin |
||
Title: President and Chief Financial Officer |
||
CUSTOMER: |
||
Western Refining Company, L.P., |
||
By Western Refining GP, LLC, its general partner | ||
By: |
/s/ Stephan E. Tompsett |
|
Name: Stephan E. Tompsett |
||
Title: Vice President and Treasurer |
Signature Page to Unloading and Storage Agreement
SCHEDULE I
TANKS AND RESERVED CAPACITY AT THE FACILITIES
Facility |
Tank
Number |
Reserved
Capacity (Barrels) |
||||||
Mesquite |
7112 | 53,810 | ||||||
Yucca |
7212 | 53,767 | ||||||
Mason East |
3111 | 80,559 | ||||||
Mason East |
3112 | 80,632 | ||||||
Wink (Jackrabbit) |
3511 | 119,039 | ||||||
Wink (Jackrabbit) |
3512 | 119,184 | ||||||
Wink (Jackrabbit) |
3513 | 80,369 | ||||||
Wink (Jackrabbit) |
3514 | 80,540 |
Schedule 1
Exhibit 1
Form of Service Order
SERVICE ORDER PURSUANT TO THE
MASTER UNLOADING AND STORAGE AGREEMENT
[] FACILITY
This Service Order ( Service Order ) is entered as of , 2018, by and between Western Refining Pipeline, LLC ( Provider ), and Western Refining Company, L.P. ( Customer ), pursuant to and in accordance with the terms of the Master Unloading and Storage Agreement dated as of August 6, 2018 (the Master Agreement ).
Capitalized terms not otherwise defined herein shall have the meaning set forth in the Master Agreement.
Pursuant to the Master Agreement, the parties hereto agree to the following provisions:
[Insert applicable provisions:
(i) |
the Fees; and |
(ii) |
any applicable Surcharges; and |
(iii) |
any other fees or services mutually agreed upon between the Parties.] |
Except as set forth in this Service Order, the other terms of the Master Agreement are hereby incorporated by reference and shall continue in full force and effect and shall apply to the terms of this Service Order.
[Signature Page Follows]
Exhibit 1
IN WITNESS WHEREOF , the parties hereto have duly executed this Service Order as of the date first written above.
PROVIDER: | ||
Western Refining Pipeline, LLC | ||
By: | ||
Name: Steven M. Sterin | ||
Title: President and Chief Financial Officer | ||
CUSTOMER: | ||
Western Refining Company, L.P., | ||
By Western Refining GP, LLC, its general partner | ||
By: | ||
Name: Gregory J. Goff | ||
Title: President and Chief Executive Officer |
Exhibit 1
Exhibit 10.6
Execution Version
ASPHALT TERMINALLING, TRANSPORTATION AND STORAGE SERVICES AGREEMENT
This ASPHALT TERMINALLING, TRANSPORTATION AND STORAGE SERVICES AGREEMENT (this Agreement ) is dated as of August 6, 2018, by and between Western Refining Company, L.P. ( Customer ), and Asphalt Terminals LLC ( Provider ). Customer and Provider may each be referred to herein as a Party and collectively as the Parties .
RECITALS
WHEREAS , on the date hereof, Customer will contribute certain assets and interests with respect to the Terminals to Andeavor Logistics LP, a Delaware limited partnership (the Partnership ), and the Partnership will contribute those assets and interests to Provider, all on the terms and conditions set forth in that certain Contribution, Conveyance and Assumption Agreement dated as of the date hereof;
WHEREAS , Provider will operate the Terminals pursuant to this Agreement; and
WHEREAS , Customer and Provider desire to enter into this Agreement to memorialize the terms of their commercial relationship.
NOW, THEREFORE , in consideration of the covenants and obligations contained herein, the Parties to this Agreement hereby agree as follows:
ARTICLE 1
DEFINITIONS
Capitalized terms used throughout this Agreement shall have the meanings set forth below, unless otherwise specifically defined herein.
Adjusted Minimum Asphalt Storage Commitment means Customers Minimum Asphalt Storage Commitment adjusted by deducting the applicable Stipulated Asphalt Storage Commitment for each Terminal that is no longer subject to this Agreement.
Adjusted Minimum Asphalt Throughput Commitment means Customers Minimum Asphalt Throughput Commitment, adjusted by deducting the applicable Stipulated Asphalt Throughput Commitment for each Terminal that is no longer subject to this Agreement.
Adjusted Minimum Commitments means the Adjusted Minimum Asphalt Throughput Commitment and the Adjusted Minimum Asphalt Storage Commitment.
Agreement has the meaning set forth in the Preamble.
API means American Petroleum Institute.
Applicable Law means any applicable statute, law, regulation, ordinance, rule, determination, judgment, rule of law, order, decree, permit, approval, concession, grant, franchise, license, requirement, or any similar form of decision of, or any provision or condition of any permit, license or other operating authorization issued by any Governmental Authority having or asserting jurisdiction over the matter or matters in question, whether now or hereafter in effect.
Asphalt means asphalt, asphalt related products and components.
Asphalt Processing and Blending Services means the following services: air-blowing (oxidation) and blending (PPA, Hydrolene and other additives), polymer modification, and emulsification.
Asphalt Third Party Credit has the meaning set forth in Section 5.1 .
ASTM means ASTM International, formerly known as the American Society for Testing and Materials.
Average Daily Third Party Asphalt Terminal Utilization has the meaning set forth in Section 5.1 .
Barrel means a volume equal to 42 U.S. gallons of 231 cubic inches each adjusted to net gallons at 60° F in accordance with ASTM D-1250 Petroleum Measurement Tables, or the latest revisions thereof.
Base Invoice Amount has the meaning set forth in Section 7.2 .
Business Day means a day, other than a Saturday or Sunday, on which banks in New York, New York are open for the general transaction of business.
Capacity Resolution has the meaning set forth in Section 23.3 .
Carrier means Customer or a third-party agent or contractor who transports Asphalt subject to this Agreement via tank trucks or rail cars to or from a Terminal for Customer or for Customers account.
Commencement Date has the meaning set forth in Section 2.1 .
Confidential Information means all confidential, proprietary or non-public information of a Party, whether set forth in writing, orally or in any other manner, including all non-public information and material of such Party (and of companies with which such Party has entered into confidentiality agreements) that another Party obtains knowledge of or access to, including non-public information regarding products, processes, business strategies and plans, customer lists, research and development programs, computer programs, hardware configuration information, technical drawings, algorithms, know-how, formulas, processes, ideas, inventions (whether patentable or not), trade secrets, schematics and other technical, business, marketing and product development plans, revenues, expenses, earnings projections, forecasts, strategies, and other non-public business, technological, and financial information.
Control means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities, by contract, or otherwise.
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Credit has the meaning set forth in Section 7.5 .
Customer has the meaning set forth in the Preamble.
Customer Group has the meaning set forth in Section 18.1 .
Customer Termination Notice has the meaning set forth in Section 22.3 .
EPA has the meaning set forth in Section 13.1 .
Excess Amounts means, with respect to Asphalt throughput services, the fee owed by Customer to Provider for such services in excess of the Minimum Asphalt Throughput Commitment.
Extension Period has the meaning set forth in Section 3.1 .
First Offer Period has the meaning set forth in Section 21.2 .
Force Majeure means circumstances, whether foreseeable or not, not reasonably within the control of Provider and which, by the exercise of due diligence, Provider is unable to prevent or overcome, that prevent performance of Providers obligations hereunder, including: acts of God, strikes, lockouts or other industrial disturbances, wars, riots, fires, floods, storms, orders of courts or Governmental Authorities, explosions, terrorist acts, accidental disruption of service, breakage, breakdown of machinery, storage tanks or lines of pipe, and inability to obtain or unavoidable delays in obtaining material or equipment and similar events.
Force Majeure Notice has the meaning set forth in Section 22.1 .
Force Majeure Period has the meaning set forth in Section 22.1 .
Governmental Authority means any federal, state, local or foreign government or any provincial, departmental or other political subdivision thereof, or any entity, body or authority exercising executive, legislative, judicial, regulatory, administrative or other governmental functions or any court, department, commission, board, bureau, agency, instrumentality or administrative body of any of the foregoing.
Indemnified Group means the Customer Group or the Provider Group, as applicable.
Minimum Asphalt Storage Commitment means the minimum Asphalt storage services for each Month during the Term at each Terminal, as set forth on Schedule 4.1 ; provided, however, that the Minimum Asphalt Storage Commitment during the Month in which the Commencement Date occurs shall be prorated in accordance with the ratio of the number of days including and following the Commencement Date in such Month to the total number of days in such Month.
Minimum Asphalt Storage Reservation Fee has the meaning set forth in Section 4.2 .
Minimum Asphalt Throughput Commitment means the amount of Asphalt put through the Terminals for each Month during the Term at each Terminal via each mode of ingress or egress as set forth on Schedule 4.1 ; provided, however, that the Minimum Asphalt Throughput Commitment during the Month in which the Commencement Date occurs shall be prorated in accordance with the ratio of the number of days including and following the Commencement Date in such Month to the total number of days in such Month.
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Minimum Asphalt Throughput Fee has the meaning set forth in Section 4.3 .
Minimum Commitments means the Minimum Asphalt Storage Commitment and Minimum Asphalt Throughput Commitment.
Month means the period commencing on the Commencement Date and ending on the last day of the calendar month in which service begins and each successive calendar month thereafter.
Partnership has the meaning set forth in the Recitals.
Partnership Change of Control means Andeavor ceases to Control the general partner of the Partnership.
Party and Parties have the meanings set forth in the Preamble.
Person means any individual, partnership, limited partnership, joint venture, corporation, limited liability company, limited liability partnership, trust, unincorporated organization or Governmental Authority or any department or agency thereof.
Provider has the meaning set forth in the Preamble.
Provider Group has the meaning set forth in Section 18.2 .
Receiving Party Personnel has the meaning set forth in Section 28.4 .
Refineries mean the refineries owned and operated by Customer and its affiliates and subsidiaries that provide source materials for the operation of the Terminals, and Refinery means any one of the Refineries, as applicable.
Restoration has the meaning set forth in Section 23.2 .
Right of First Refusal has the meaning set forth in Section 21.2 .
Shortfall Amount has the meaning set forth in Section 7.3 .
Special Damages has the meaning set forth in Section 17.1 .
Stipulated Asphalt Storage Commitment means, with respect to each Terminal, the storage capacity specified for such Terminal on Schedule 22.2 .
Stipulated Asphalt Throughput Commitment means, with respect to each Terminal, the stipulated Asphalt volume (rail or truck) in tons per Month as set forth for such Terminal on Schedule 22.2 .
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Stipulated Commitments means, collectively, as to the applicable Terminal(s), the Stipulated Asphalt Storage Commitment and Stipulated Asphalt Throughput Commitment for such Terminal(s).
Surcharge has the meaning set forth in Section 6.1 .
Term and Initial Term each have the meaning set forth in Section 3.1 .
Terminals means Providers terminals located in Bakersfield, California; Mojave, California; Elk Grove, California; and Phoenix, Arizona and Terminal means any one of the Terminals, as applicable.
Terminal Service Order has the meaning set forth in Section 7.1 .
Termination Notice has the meaning set forth in Section 22.1 .
ARTICLE 2
COMMENCEMENT DATE
2.1 The date of this Agreement shall be the Commencement Date .
ARTICLE 3
TERM
3.1 The initial term of this Agreement shall commence on the Commencement Date and shall continue through August 6, 2028 (the Initial Term ); provided, however, that Customer may, at its option, extend the Initial Term for up to two (2) renewal terms of five (5) years each (each, an Extension Period ) by providing written notice of its intent to Provider no less than 365 calendar days prior to the end of the Initial Term or the then-current Extension Period. The Initial Term, and any Extension Period, shall collectively be referred to herein as the Term .
3.2 If Customer has not provided written notice of its intent to extend the Initial Term for the first Extension Period pursuant to Section 3.1 , Provider may, at its option, provide written notice to Customer no less than ninety (90) days prior to the end of the Initial Term to extend the Initial Term for an additional two (2) years and, if exercised, such additional two (2) years shall be considered part of the Term of the Agreement.
ARTICLE 4
ASPHALT SERVICES
4.1 Minimum Asphalt Commitments . During the Term of this Agreement and subject to the terms and conditions of this Agreement and any Terminal Service Order, each Month, Customer shall:
(a) Satisfy the Minimum Asphalt Storage Commitment at each Terminal pursuant to Section 4.2 ; and
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(b) Satisfy the Minimum Asphalt Throughput Commitment at each Terminal pursuant to Section 4.3 .
4.2 Asphalt Storage Reservation Fee . Provider shall provide Asphalt storage services and Customer shall pay a monthly per Barrel fee (for storage services of in-service dedicated tanks) as set forth in the applicable Terminal Service Orders to reserve, on a firm basis, the Minimum Asphalt Storage Commitment of certain dedicated tanks at each of the Terminals as identified on Schedule 4.2 . The aggregate of these fees for in-service dedicated tanks on a monthly basis for all Terminals shall be referred to as the Minimum Asphalt Storage Reservation Fee . Provider may utilize any reserved capacity not being used by Customer to provide storage to third parties; provided, however, that (a) Customer shall be entitled to a corresponding Asphalt Third Party Credit, as defined below, and (b) Provider shall be required, to the extent Customer desires to utilize any then-available storage capacity, to prioritize Customers utilization of such storage capacity over third-party customers.
4.3 Asphalt Throughput Fees . Provider shall provide Asphalt throughput services and Customer shall deliver and/or pay for the Asphalt volumes throughput at each of the Terminals for the Minimum Asphalt Throughput Commitment at the per ton fees as set forth in the applicable Terminal Service Orders. The aggregate of these fees on a monthly basis for all Terminals shall be referred to as the Minimum Asphalt Throughput Fee . From time to time, upon agreement of the Parties and to the extent there is available capacity at any given Terminal, Customer may utilize Asphalt throughput capacity in excess of the Minimum Asphalt Throughput Commitment and, in such circumstances, Provider shall prioritize Customers utilization of such throughput capacity over third-party customers. Any such excess Asphalt throughput volumes will be at the per ton throughput fees as set forth in a Terminal Service Order. Provider may utilize any throughput capacity not being used by Customer to provide throughput to third parties; provided, however, that Provider shall be required, to the extent Customer desires to utilize any then-available throughput capacity, to prioritize Customers utilization of such throughput capacity over third-party customers.
4.4 Asphalt Processing and Blending Services . As set forth in the applicable Terminal Service Orders, Provider shall provide Asphalt Processing and Blending Services and Customer shall pay the per ton fees set forth in such applicable Terminal Service Orders for such Asphalt Processing and Blending Services. In addition, Customer shall reimburse Provider for the costs (including shipping, delivery and other ancillary costs) of all additives (and other products used for blending) to the extent Provider purchases such additives (or other products used for blending) in any given Month on behalf of Customer at the Terminals. Provider may utilize any Asphalt Processing and Blending Services capacity not being used by Customer to provide Asphalt Processing and Blending Services to third parties; provided, however, that Provider shall be required, to the extent Customer desires to utilize any then-available Asphalt Processing and Blending Services capacity, to prioritize Customers utilization of such Asphalt Processing and Blending Services capacity over third-party customers.
4.5 Additional Services . Asphalt services in addition and differing from those described in this Article 4 , if available at the Terminals, may be provided by Provider to Customer pursuant to a Terminal Service Order.
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ARTICLE 5
THIRD PARTY CREDIT
At the conclusion of each Month, Provider shall calculate the Average Daily Third Party Asphalt Terminal Utilization of the Terminal storage, which shall be a fraction, (a) the numerator of which is the sum of, for each day in such Month, the number of Barrels of Asphalt stored for third parties in the reserved capacity set forth on Schedule 4.1 and (b) the denominator of which is (i) the aggregate reserved capacity set forth on Schedule 4.1 multiplied by (ii) the number of days in such Month. For each Month, the product of the Average Daily Third Party Asphalt Terminal Utilization and the Minimum Asphalt Storage Reservation Fee shall be the Asphalt Third Party Credit . Each Month, the total fees due to Provider for Asphalt storage services at the Terminals will be reduced (but not below zero) by the amount of such Asphalt Third Party Credit.
ARTICLE 6
SURCHARGES
6.1 Surcharges . If, during the Term, any existing laws or regulations are changed or any new laws or regulations are enacted that require Provider to make substantial and unanticipated expenditures (whether capitalized or otherwise) with respect to any of the Terminals or any of the services Provider provides to Customer under this Agreement or any Terminal Service Order, Provider may, subject to the terms of this Article 6 , impose a surcharge to increase the applicable service fee ( Surcharge ) to cover Customers pro rata share of the cost of complying with these laws or regulations, based upon the percentage of Customers use of the services or facilities impacted by such new laws or regulations.
6.2 Notification and Mitigation . Provider shall notify Customer of any proposed Surcharge to be imposed pursuant to Section 6.1 sufficient to cover the cost of any required capital or expense projects and any ongoing increased operating costs. Provider and Customer then shall negotiate in good faith for up to thirty (30) days to mutually determine the effect of the change in law or regulation or new law or regulation, the cost thereof, and how such cost shall be amortized at an interest rate of no more than nine percent (9%) as a Surcharge, with the understanding that Provider and Customer shall use their reasonable commercial efforts to mitigate the impact of, and comply with, these laws and regulations. Without limiting the foregoing, if expenditures requiring a Surcharge may be avoided or reduced through changes in operations, then the Parties shall negotiate in good faith to set forth the appropriate changes in a Terminal Service Order to evidence the reduction of the amount of a Surcharge while leaving the Parties in the same relative economic position they held before the laws or regulations were changed or enacted.
6.3 Less Than 15% Surcharge . In the event any Surcharge results in less than a fifteen percent (15%) increase in the applicable service fee, Customer will be assessed such Surcharge on all future invoices during the period in which such Surcharge is in effect for the applicable amortization period, and Provider shall not terminate the affected service from this Agreement.
6.4 15% or More Surcharge . In the event any Surcharge results in a fifteen percent (15%) or more increase in the applicable service fee, Provider shall notify Customer of the amount of the Surcharge required to reimburse Provider for its costs, plus carrying costs, together with reasonable supporting detail for the nature and amount of any such Surcharge.
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(a) If within thirty (30) days of such notification provided in this Section 6.4 , Customer does not agree to pay such Surcharge or to reimburse Provider up front for its costs, Provider may elect to either:
(i) require Customer to pay such Surcharge, up to a fifteen percent (15%) increase in the applicable service fee; or
(ii) terminate the service(s) under this Agreement to which the Surcharge applies, upon notice to Customer.
(b) Providers performance obligations under this Agreement shall be suspended or reduced during the above thirty (30) day period to the extent that Provider would be obligated to make such expenditures to continue performance during such period.
6.5 Resolution of Surcharge . Following a resolution with respect to the amount and manner of payment of a Surcharge pursuant to this Article 6 , the Parties shall execute an appropriate Terminal Service Order memorializing the terms of such resolution.
6.6 Payment of Surcharge . In lieu of paying the Surcharge in connection with any required capital project, Customer may, at its option, elect to pay the full cost of the substantial and unanticipated expenditures upon completion of the applicable project.
ARTICLE 7
TERMINAL SERVICE ORDERS; PAYMENT
7.1 Terminal Service Orders . On the date hereof, Provider and Customer shall enter into one or more terminal service orders for the Terminals, as applicable, substantially in the form attached hereto as Exhibit 1 (each, a Terminal Service Order ). The Parties may agree to enter into additional Terminal Service Orders following the date hereof. Upon a request by Customer pursuant to this Agreement or as deemed necessary or appropriate by Provider in connection with the services to be delivered pursuant hereto, Provider shall generate a Terminal Service Order to set forth the specific terms and conditions for providing the applicable services described therein and the applicable fees to be charged for such services. In case of any conflict between the terms of this Agreement and the terms of any Terminal Service Order, the terms of the applicable Terminal Service Order shall govern. No Terminal Service Order shall be effective until fully executed by both Provider and Customer.
7.2 Base Invoice Amount . Provider shall invoice Customer monthly for fees owed to Provider based upon actual storage utilized, actual throughput, and additives (and other products used for blending) to be reimbursed pursuant to Section 4.4 , and, to the extent set forth in a Terminal Service Order, any additive, blending and processing services utilized (the Base Invoice Amount ).
7.3 Shortfall Amount . If the Base Invoice Amount is less than the total of the Minimum Asphalt Storage Reservation Fee and the Minimum Asphalt Throughput Fee for such month, Provider shall also invoice Customer for such difference (the Shortfall Amount ).
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7.4 Payment Terms . Customer shall pay all amounts due under this Agreement and each Terminal Service Order then in effect no later than ten (10) calendar days after Customers receipt of Providers invoices. Any past due payments owed by Customer shall accrue interest, payable on demand, at the lesser of (i) the rate of interest announced publicly by JPMorgan Chase Bank, in New York, New York, as JPMorgan Chase Banks prime rate (which Parties acknowledge and agree is announced by such bank and used by the Parties for reference purposes only and may not represent the lowest or best rate available to any of the customers of such bank or the Parties), plus four percent (4%), and (ii) the highest rate of interest (if any) permitted by Applicable Law, from the due date of the payment through the actual date of payment.
7.5 Shortfall Credit . The dollar amount of any Shortfall Amount attributable to throughput services (but not storage) paid by Customer shall be posted as a credit (a Credit ) to Customers account and may be applied against any Excess Amounts owed by Customer during the remaining calendar year. Credits will be applied in the order in which such Credits accrue and any remaining portion of the Credit that is not used by Customer during the remaining calendar year shall expire at the end of such calendar year (e.g., a Credit that accrues in January 2019 will be available through December 2019 and will expire on December 31, 2019).
7.6 Fee Adjustments . Any fees of a fixed amount set forth in this Agreement and any Terminal Service Order shall be increased on July 1 of each year of the Term, commencing on July 1, 2019, by a percentage equal to the greater of zero or the positive change, if any, in the CPI-U (All Urban Consumers) for the prior calendar year, as reported by the Bureau of Labor Statistics, and rounded to the nearest one-tenth (1/10) of one percent (1%).
ARTICLE 8
VOLUME LOSSES
8.1 Volume Losses . Provider shall have no obligation to measure volume gains and losses. In the event third-party Asphalt is terminalled at a Terminal, the Parties shall mutually determine the measurement and volume loss control practices for such Terminal. Provider shall be responsible to Customer only for Asphalt losses and/or shortages resulting from the negligent or wrongful acts and omissions of Provider, its agents, employees or contractors or breach of this Agreement or any applicable Terminal Service Order by Provider, its agents, employees or contractors; provided that Provider shall not be responsible to Customer for any Asphalt losses and/or shortages for which Customer is compensated by its cargo/inventory insurance carrier. If Customer fails to maintain cargo/inventory insurance coverage, then Provider shall also not be responsible to Customer for any Asphalt losses and/or shortages to the extent Customer would have been compensated by its insurance carrier had Customer maintained a customary level of cargo/inventory insurance coverage. Except as provided for in this Section 8.1 , Customer shall be responsible for all Asphalt losses and/or shortages it may suffer.
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ARTICLE 9
REIMBURSEMENT; EXCISE TAXES
9.1 Prompt Reimbursement . Customer shall promptly pay or reimburse Provider for any newly imposed taxes, levies, royalties, assessments, licenses, fees, charges, surcharges and sums due of any nature whatsoever (other than income taxes, gross receipt taxes and similar taxes) by any federal, state or local government or agency that Provider incurs on Customers behalf for the services provided by Provider under this Agreement or any Terminal Service Order. If Provider is required to pay any of the foregoing, Customer shall promptly reimburse Provider in accordance with the payment terms set forth in this Agreement. Any such newly imposed taxes or regulatory fees as provided for in this Section 9.1 shall be specified in an applicable Terminal Service Order. If Customer is exempt from the payment of any taxes allocated to Customer, Customer shall furnish Provider with the proper exemption certificates.
9.2 Reimbursement for Tank Cleaning . If cleaning of any tanks is performed by Provider at the specific request of Customer, Customer shall reimburse Provider for all costs to clean, degas or otherwise prepare the tank(s) including, without limitation, the cost of removal, processing, transportation, disposal, of all waste and the cost of any taxes or charges Provider may be required to pay in regard to such waste. For any tanks that are dedicated to Customer for segregated storage of Customers Asphalt as set forth in any Terminal Service Order, Customer agrees to reimburse Provider for the reasonable cost of changes necessary to return the dedicated storage tanks to Provider on termination of their dedication for segregated storage under this Agreement, in substantially the same condition as originally received less normal wear and tear, unless otherwise mutually agreed by the Parties.
9.3 Reimbursement for Tank Conversion . If Customer requests that any dedicated tank be changed for storage of a different grade or type of product, Provider shall agree to a change in such service, if the same can be accomplished in accordance with reasonable commercial standards, accepted industry and engineering guidelines, permit requirements and Applicable Law. If any such modifications, improvements, vapor recovery, cleaning, degassing, or other preparation of the tanks is performed by Provider at the request of Customer, Customer shall bear all direct costs attributable thereto, including, without limitation, the cost of removal, processing, transportation, and disposal of all waste and the cost of any taxes or mutually agreed charges Provider may be required to pay in regard to such waste, which costs shall be set forth on the applicable Terminal Service Order.
9.4 Payment . All of the foregoing reimbursements, together with the additive (and other products used for blending) cost reimbursements described in Section 4.4 , shall be made in accordance with the payment terms set forth in Article 7 .
9.5 Excise Taxes . Upon written request by Provider, Customer shall supply Provider with a completed signed original notification certificate of gasoline and diesel fuel registrant as required by the Internal Revenue Services excise tax regulation. Customer further agrees to comply with all Applicable Law with respect to such taxes.
ARTICLE 10
CONTROL, CUSTODY, TRANSFER AND TITLE
10.1 Control . Control and operation of the Terminals shall rest exclusively with Provider. Provider shall be an independent contractor with respect to all services it provides under this Agreement and each Terminal Service Order. Provider may suspend operations at any of the Terminals to the extent that Provider believes that any Person, equipment, or the environment is at risk of injury or damage.
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10.2 Custody .
(a) Rail . For volumes received by rail, custody shall pass to Provider at the flange where the hoses at Providers facility interconnect with the rail car.
(b) Truck . For receipts and deliveries of volumes to or from trucks, custody shall pass at the flange where the hoses at Providers facility interconnect with the truck.
10.3 General . Each Party shall be solely responsible for any loss, damage or injury to Person or property or the environment, arising out of transportation, possession or use of such volumes while in that Partys custody, subject to the volume loss provisions hereof or unless otherwise provided herein. Title to all volumes received in the Terminals by or on behalf of Customer shall remain with Customer at all times. Both Parties acknowledge that this Agreement represents a bailment of such volumes by Customer to Provider and not a consignment of such volumes, it being understood that Provider has no authority hereunder to sell or seek purchasers for the volumes of Customer. Customer hereby warrants that it shall, at all times, have good title to and the right to deliver, throughput, store and receive volumes pursuant to the terms of this Agreement and any Terminal Service Order. Customer shall at all times be the blender of record and shall retain and be entitled to any renewable identification numbers.
ARTICLE 11
QUALITY OF ASPHALT
Customer warrants that all Asphalt delivered under this Agreement and any Terminal Service Order shall meet the latest applicable specifications for such Asphalt and contain no deleterious substances or concentrations of any contaminants that may make it or its components commercially unacceptable in general industry application. Customer shall not deliver to any of the Terminals any Asphalt which: (a) would in any way be injurious to any of the Terminals; (b) would render any of the Terminals unfit for the proper storage of similar products; (c) would contaminate or otherwise downgrade the quality of the products stored; (d) may not be lawfully stored at the Terminals; or (e) otherwise do not meet applicable specifications for such Asphalt. If, however, there are volumes of Asphalt that do not have such applicable specifications, the specifications shall be mutually agreed upon by the Parties.
ARTICLE 12
MEASUREMENT
12.1 Methods of Measurement . All quantities of Asphalt:
(a) received or delivered by or into rail shall be measured and determined based upon the meter readings at the applicable Terminal, as reflected by delivery tickets or bills of lading, or if such meters are unavailable, by applicable calibration tables, as set forth on a Terminal Service Order or pursuant to mutual agreement of the Parties.
(b) received or delivered by or into truck shall be measured and determined based upon the meter readings at the applicable Terminal, as reflected by delivery tickets or bills of lading, or the weights determined by truck scales at such Terminal, as reflected by delivery tickets or bills of lading, or if such meters or scales are unavailable, by applicable calibration tables, as set forth on a Terminal Service Order or pursuant to mutual agreement of the Parties.
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(c) delivered by book transfer shall be reflected by entries in the books of Provider.
12.2 Calibration . Meters and temperature probes shall be calibrated according to applicable API standards. Customer shall have the right, at its sole expense, and in accordance procedures at the applicable Terminal, to independently certify said calibration. Storage tank gauging shall be performed by Providers personnel. Providers gauging shall be deemed accurate unless challenged by an independent certified gauger in accordance with the following provisions of this Section 12.2 . Customer may perform joint gauging at its sole expense with Providers personnel. If Customer should request an independent gauger, such gauger must be acceptable to Provider, and such gauging shall be at Customers sole expense.
12.3 Calibration of Truck Scales . Scales used in weighing trucks at the Terminals for measurement purposes shall be calibrated, inspected and maintained in accordance with the provisions of the Cal. Bus. & Prof. Code § D.5 Weights and Measures (§§ 12001-13800) and Ariz. Rev. Stat. Ann. § 3-3411, as applicable, and Section 2.20 of the National Institute of Standards and Technology publication entitled Handbook 44, Specifications, Tolerances, and Other Technical Requirements for Weighing and Measuring Devices.
ARTICLE 13
DELIVERIES, RECEIPTS AND WITHDRAWALS
13.1 Deliveries . All supervised deliveries, receipts and withdrawals hereunder shall be made within the normal business hours of the applicable Terminal and at such times as may be required by Customer upon prior notice and approval by Provider, all in accordance with the agreed-upon scheduling. Unsupervised deliveries, receipts and withdrawals shall be made only with Providers prior approval and in strict accordance with Providers current operating procedures for the Terminals. Customer warrants that all vehicles permitted to enter the Terminals on behalf of Customer shall meet all requirements and standards promulgated by applicable regulatory authority including the Department of Transportation, the Occupational Safety and Health Administration, and the U.S. Environmental Protection Agency ( EPA ). Customer further warrants that it shall only send to the Terminals those employees, agents and other representatives acting on behalf of and at Customers direction who have been properly instructed as to the characteristics and safe hauling methods associated with the Asphalt to be loaded and hauled. Customer further agrees to be responsible to Provider for the performance under this Agreement by its third party agents and/or representatives delivering Asphalt to, or receiving Asphalt at, the Terminals and to ensure its Carriers compliance with Article 14 and Section 19.3 .
13.2 Loading Devices . Customer shall withdraw from the Terminals only those volumes that it is authorized to withdraw hereunder. Customer shall neither duplicate nor permit the duplication of any loading device (i.e., card lock access) provided pursuant to a carrier access agreement. Customer shall be fully and solely responsible for all volumes loaded through the use of the loading devices issued to Customer pursuant to a carrier access agreement; provided, however, that Customer shall not have any responsibility or liability hereunder in the event that the load authorization system provided hereunder fails or malfunctions in any way.
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13.3 Legal Compliance . Both Parties shall abide by all Applicable Law and all rules and regulations which are promulgated by Provider and which are either furnished to Customer or posted at the applicable Terminal, with respect to the use of such Terminal. It is understood and agreed by Customer that these rules and regulations may be changed, amended or modified by Provider at any time, and from time to time. All changes, amendments and modifications shall become binding upon Customer ten (10) days following the posting of a copy at the affected Terminal(s) or the receipt by Customer of a copy, whichever occurs sooner.
13.4 Customer Representatives . For all purposes hereunder, Customers jobbers, distributors, Carriers, haulers and other customers designated in writing or otherwise by Customer to have loading privileges under this Agreement or any Terminal Service Order or having possession of any loading device furnished to Customer pursuant to this Agreement or any Terminal Service Order, together with their respective officers, servants and employees, shall, when they access the Terminals, be deemed to be representatives of Customer.
ARTICLE 14
DELIVERIES INTO TRANSPORT TRUCKS
14.1 Prior to transporting any Asphalt loaded into transport trucks at a Terminal, Customer and its Carriers shall make or cause to be made, the following certifications on the delivery receipt or bill of lading covering the products received:
If required by 49 C.F.R. 172.204, this is to certify that the above-named materials are properly classified, described, packaged, marked and labeled, and are in proper condition for transportation according to the applicable regulations of the Department of Transportation. Carrier hereby certifies that the cargo tank used for this shipment is a proper container for the commodity loaded therein and complies with Department of Transportation specifications and certifies that cargo tank is properly placarded and marked to comply with regulations pertaining to hazardous materials.
14.2 Provider may require each Carrier coming into a Terminal to enter into a customary Access Agreement with Provider and to carry the levels and types of insurance, with appropriate endorsements and certificates, specified for Customer hereunder.
ARTICLE 15
ACCOUNTING PROVISIONS AND DOCUMENTATION
15.1 Required Reports . Provider shall furnish Customer with the following reports covering services hereunder involving Customers Asphalt:
(a) Within twenty (20) days following the end of the Month, a statement showing, by product: (i) Customers monthly aggregate deliveries into the Terminals (specifying deliveries per each Terminal); (ii) Customers monthly receipts from each of the Terminals; (iii) calculation of all of Customers monthly storage and handling fees; (iv) Customers opening inventory for the preceding Month; and (v) Customers closing inventory for the preceding Month.
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(b) A copy of any scale or meter calibration report, to be available for inspection upon reasonable request by Customer at the Terminals following any calibration.
(c) Upon delivery from the applicable Terminal and to the extent available, a hard copy bill of lading to the Carrier for each truck or rail delivery. Upon reasonable request only, a hard copy bill of lading shall be provided to Customers accounting group. Upon each truck delivery from a Terminal, bill of lading information shall be sent electronically through General Electric Information Services Petroex System or other mutually agreeable system.
(d) Transfer documents for each in-tank transfer.
15.2 Required Maintenance . Provider shall be required to maintain the capabilities to support truck load authorization technologies at each Terminal. However, costs incurred by Provider for periodic software updates, replacement of loading systems or software or other upgrades made at the request of Customer shall be recoverable from Customer either as a lump sum payment or through an increase in terminalling fees pursuant to a Terminal Service Order. Notwithstanding the foregoing, if an update, replacement or upgrade is made other than at Customers request, Provider and Customer shall mutually agree on a fee for such update, replacement or upgrade.
ARTICLE 16
AUDIT AND CLAIMS PERIOD
16.1 Each Party and its duly authorized agents and/or representatives shall have reasonable access to the accounting records and other documents maintained by the other Party which relate to this Agreement, and shall have the right to audit such records at any reasonable time or times during the Term and for a period of up to three (3) years after termination of this Agreement. Claims as to shortage in quantity or defects in quality shall be made by written notice within ninety (90) days after the delivery in question or shall be deemed to have been waived.
ARTICLE 17
LIMITATION ON LIABILITY
17.1 No Special Damages . Notwithstanding anything herein to the contrary, neither Party shall be liable or responsible to the other Party or to any member of such Partys Indemnified Group for any consequential, incidental, or punitive damages, or for loss of profits or revenues (collectively referred to as Special Damages ) incurred by such Party or any member of such Partys Indemnified Group that arise out of or relate to this Agreement or any Terminal Service Order, regardless of whether any such claim arises under or results from contract, negligence, or strict liability of the Party whose liability is being waived hereby; provided that the foregoing limitation is not intended and shall not affect Special Damages actually awarded to a third party or assessed by a Governmental Authority and for which a Party or any member of such Partys Indemnified Group is properly entitled to indemnification from the other Party pursuant to the express provisions of this Agreement.
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17.2 Claims and Liability for Lost Volumes . Provider shall not be liable to Customer for lost or damaged Asphalt unless Customer notifies Provider in writing within ninety (90) days of the report of any incident or the date Customer learns of any such loss or damage to the Asphalt. Providers maximum liability to Customer for any lost or damaged Asphalt shall be limited to (a) the lesser of (i) the replacement value of the Asphalt at the time of the incident based upon the price as posted by Platts or similar publication for similar Asphalt in the same locality, and if no other similar Asphalt is in the locality, then in the state, or (ii) the actual cost paid for the Asphalt by Customer (copies of Customers invoices of cost paid must be provided), less (b) the salvage value, if any, of the damaged Asphalt.
17.3 No Guarantees or Warranties . Except as expressly provided in the Agreement, neither Customer nor Provider makes any guarantees or warranties of any kind, expressed or implied. Provider specifically disclaims all implied warranties of any kind or nature, including any implied warranty of merchantability and/or any implied warranty of fitness for a particular purpose.
ARTICLE 18
INDEMNITIES
18.1 Provider Indemnities . Notwithstanding anything else contained in this Agreement or any Terminal Service Order, Provider shall release, defend, protect, indemnify, and hold harmless Customer and its affiliates and their respective officers, directors, members, managers, employees, agents, contractors, successors, and assigns (excluding any member of Provider Group) ( Customer Group ) from and against any and all demands, claims (including third party claims), losses, costs, suits, or causes of action (including, but not limited to, any judgments, losses, liabilities, fines, penalties, expenses, interest, reasonable legal fees, costs of suit, and damages, whether in law or equity and whether in contract, tort, or otherwise) for or relating to (a) personal or bodily injury to, or death of the employees of Customer or Provider and, as applicable, their carriers, customers, representatives, and agents; (b) loss of or damage to any property, products, material, and/or equipment belonging to Customer or Provider and, as applicable, their carriers, customers, representatives, and agents, and each of their respective affiliates, contractors, and subcontractors; (c) loss of or damage to any other property, products, material, and/or equipment of any other description, and/or personal or bodily injury to, or death of any other person or persons; and with respect to clauses (a) through (c) above, which is caused by or resulting in whole or in part from the negligent or wrongful acts or omissions of Provider in connection with the ownership or operation of the Terminals and the services provided hereunder, and, as applicable, its carriers, customers (other than Customer), representatives, and agents, or those of their respective employees with respect to such matters; and (d) any losses incurred by Customer due to violations of this Agreement or any Terminal Service Order by Provider, or, as applicable, its carriers, customers (other than Customer), representatives, and agents; PROVIDED, HOWEVER, THAT PROVIDER SHALL NOT BE OBLIGATED TO INDEMNIFY OR HOLD HARMLESS CUSTOMER OR ANY MEMBER OF THE CUSTOMER GROUP FROM AND AGAINST ANY CLAIMS TO THE EXTENT THEY RESULT FROM THE BREACH OF CONTRACT, STRICT LIABILITY OR THE NEGLIGENT ACTS, ERRORS OR OMISSIONS OR WILLFUL MISCONDUCT OF CUSTOMER OR ANY MEMBER OF THE CUSTOMER GROUP.
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18.2 Customer Indemnities . Notwithstanding anything else contained in this Agreement or any Terminal Service Order, Customer shall release, defend, protect, indemnify, and hold harmless Provider and its affiliates and their respective officers, directors, members, managers, employees, agents, contractors, successors, and assigns (excluding any member of Customer Group) ( Provider Group ) from and against any and all demands, claims (including third-party claims), losses, costs, suits, or causes of action (including, but not limited to, any judgments, losses, liabilities, fines, penalties, expenses, interest, reasonable legal fees, costs of suit, and damages, whether in law or equity and whether in contract, tort, or otherwise) for or relating to (a) personal or bodily injury to, or death of the employees of Provider or Customer and, as applicable, their carriers, customers, representatives, and agents; (b) loss of or damage to any property, products, material, and/or equipment belonging to Provider or Customer and, as applicable, their carriers, customers, representatives, and agents, and each of their respective affiliates, contractors, and subcontractors; (c) loss of or damage to any other property, products, material, and/or equipment of any other description, and/or personal or bodily injury to, or death of any other person or persons; and with respect to clauses (a) through (c) above, which is caused by or resulting in whole or in part from the negligent or wrongful acts or omissions of Customer, in connection with Customers and its customers use of the Terminals and the services provided hereunder and Customers Asphalt stored hereunder, and, as applicable, its carriers, customers, representatives, and agents, or those of their respective employees with respect to such matters; and (d) any losses incurred by Provider due to violations of this Agreement or any Terminal Service Order by Customer, or, as applicable, its carriers, customers, representatives, and agents; PROVIDED, HOWEVER , THAT CUSTOMER SHALL NOT BE OBLIGATED TO INDEMNIFY OR HOLD HARMLESS PROVIDER OR ANY MEMBER OF THE PROVIDER GROUP FROM AND AGAINST ANY CLAIMS TO THE EXTENT THEY RESULT FROM THE BREACH OF CONTRACT, STRICT LIABILITY OR THE NEGLIGENT ACTS, ERRORS OR OMISSIONS OR WILLFUL MISCONDUCT OF PROVIDER OR ANY MEMBER OF THE PROVIDER GROUP.
18.3 Affiliates . Customer and Provider shall not be considered affiliated or affiliates of one another for purposes of the indemnification provisions set forth in this Agreement.
18.4 Written Claim . Neither Party shall be obligated to indemnify the other Party or any member of such Partys Indemnified Group or be liable to the other Party or any member of such Partys Indemnified Group unless a written claim for indemnity is delivered to the other Party within ninety (90) days after the date that a claim is reported or discovered, whichever is earlier.
18.5 No Limitation . Except as expressly provided otherwise in this Agreement, the scope of these indemnity provisions may not be altered, restricted, limited, or changed by any other provision of this Agreement. The indemnity obligations of the Parties as set out in this Article 18 are independent of any insurance requirements as set out in Article 19 , and such indemnity obligations shall not be lessened or extinguished by reason of a Partys failure to obtain the required insurance coverages or by any defenses asserted by a Partys insurers.
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18.6 Survival . These indemnity obligations shall survive the termination of this Agreement until all applicable statutes of limitation have run regarding any claims that could be made with respect to the activities contemplated by this Agreement.
18.7 Third Party Indemnification . If any party has the rights to indemnification from a third party, the indemnifying party under this Agreement shall have the right of subrogation with respect to any amounts received from such third-party indemnification claim.
ARTICLE 19
INSURANCE
19.1 Minimum Limits . At all times during the Term of this Agreement and for a period of two (2) years after termination of this Agreement for any coverage maintained on a claims-made or occurrence basis, Customer and/or its Carrier(s) (if applicable) shall maintain at their expense the below listed insurance in the amounts specified below, or as may be agreed pursuant to a Terminal Service Order. Customer shall require that its Carriers provide such insurance, and Customer shall be liable to Provider for its failure to do so. Such insurance shall provide coverage to Provider and such policies, other than Workers Compensation Insurance, shall include Provider as an Additional Insured. Each policy shall provide that it is primary to and not contributory with any other insurance, including any self-insured retention, maintained by Provider (which shall be excess) and each policy shall provide the full coverage required by this Agreement. All such insurance shall be written with carriers and underwriters acceptable to Provider, and eligible to do business in the states where the Terminals are located and having and maintaining an A.M. Best financial strength rating of no less than A- and financial size rating no less than VII; provided that Customer and/or the Carrier(s) may procure workers compensation insurance from the state fund(s) of the state(s) where the Terminals are located. All limits listed below are required MINIMUM LIMITS:
(a) Workers Compensation and Occupational Disease Insurance which fully complies with Applicable Law of the state(s) where the Terminals are located, in limits not less than statutory requirements;
(b) Employers Liability Insurance with a minimum limit of $1,000,000 for each accident, covering injury or death to any employee which may be outside the scope of the workers compensation statute of the jurisdiction in which the workers service is performed, and in the aggregate as respects occupational disease;
(c) Commercial General Liability Insurance, including contractual liability insurance covering Carriers indemnity obligations under this Agreement, with minimum limits of $1,000,000 combined single limit per occurrence for bodily injury and property damage liability, or such higher limits as may be required by Provider or by Applicable Law from time to time. This policy shall include Broad Form Contractual Liability insurance coverage which shall specifically apply to the obligations assumed in this Agreement by Customer;
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(d) Automobile Liability Insurance covering all owned, non-owned and hired vehicles, with minimum limits of $1,000,000 combined single limit per occurrence for bodily injury and property damage liability, or such higher limit(s) as may be required by Customer or by Applicable Law from time to time. Coverage must assure compliance with Sections 29 and 30 of the Motor Carrier Act of 1980 and all applicable rules and regulations of the Federal Highway Administrations Bureau of Motor Carrier Safety and Interstate Commerce Commissioner (Form MCS 90 Endorsement). Limits of liability for this insurance must be in accordance with the financial responsibility requirement of the Motor Carrier Act, but not less than $1,000,000 per occurrence;
(e) Excess (Umbrella) Liability Insurance with limits not less than $4,000,000 per occurrence. Additional excess limits may be utilized to supplement inadequate limits in the primary policies required in items (b), (c), and (d) above;
(f) Pollution Legal Liability with limits not less than $25,000,000 per loss with an annual aggregate of $25,000,000. Coverage shall apply to bodily injury and property damage including loss of use of damaged property and property that has not been physically injured; cleanup costs, defense, including costs and expenses incurred in the investigation, defense or settlement of claim; and
(g) Cargo/Inventory Insurance, with a limit of no less than $1,000,000, which property insurance shall be first-party insurance to adequately cover all Asphalt owned by Customer located at the Terminals.
19.2 Waiver of Subrogation . All such policies must be endorsed with a Waiver of Subrogation endorsement, effectively waiving rights of recovery under subrogation or otherwise, against Provider, and shall contain where applicable, a severability of interest clause and a standard cross liability clause.
19.3 Copies of Insurance Certificates or Policies . Upon execution of this Agreement and prior to the operation of any equipment by Customer, Carrier or its authorized drivers at the Terminals, Customer and/or Carrier(s) will furnish to Provider, and at least annually thereafter (or at any other times upon request by Provider) during the Term of this Agreement (and for any coverage maintained on a claims-made basis, for two (2) years after the termination of this Agreement), insurance certificates and/or certified copies of the original policies to evidence the insurance required herein, including on behalf of Carriers contractors providing authorized vehicles or authorized drivers. Such certificates shall be in the form of the Accord Certificate of Insurance, and reflect that they are for the benefit of Provider and shall provide that there will be no material change in or cancellation of the policies unless Provider is given at least thirty (30) days prior written notice. Certificates providing evidence of renewal of coverage shall be furnished to Provider prior to policy expiration.
19.4 Responsibility for Deductibles . Customer and/or Carrier shall be solely responsible for any deductibles or self-insured retention.
ARTICLE 20
GOVERNMENT REGULATIONS
20.1 Certification . Each Party certifies, with respect to Asphalt tendered by or on behalf of such Party hereunder, that none of the Asphalt covered by this Agreement or any Terminal Service Order were derived from crude petroleum, petrochemical, or gas which was produced or withdrawn from storage in violation of any federal, state or other governmental law, nor in violation of any rule, regulation or promulgated by any governmental agency having jurisdiction in the premises.
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20.2 Compliance with Applicable Law . The Parties are entering into this Agreement and any Terminal Service Order in reliance upon and shall fully comply with all Applicable Law which directly or indirectly affects the Asphalt throughput hereunder, or any receipt, throughput delivery, transportation, handling or storage of Asphalt hereunder or the ownership, operation or condition of each Terminal. Each Party shall be responsible for compliance with all Applicable Laws associated with such Partys respective performance hereunder and the operation of such Partys facilities. In the event any action or obligation imposed upon a Party under this Agreement or any Terminal Service Order shall at any time be in conflict with any requirement of Applicable Law, then this Agreement and any Terminal Service Order shall immediately be modified to conform the action or obligation so adversely affected to the requirements of the Applicable Law, and all other provisions of this Agreement and any Terminal Service Order shall remain effective.
20.3 Change in Applicable Law . If during the Term, any new Applicable Law becomes effective or any existing Applicable Law or its interpretations is materially changed, which change is not addressed by another provision of this Agreement or any Terminal Service Order and which has a material adverse economic impact upon a Party, either Party, acting in good faith, shall have the option to request renegotiation of the relevant provisions of this Agreement or a Terminal Service Order with respect to future performance. The Parties shall then meet to negotiate in good faith amendments to this Agreement or to an applicable Terminal Service Order that will conform to the new Applicable Law while preserving the Parties economic, operational, commercial and competitive arrangements in accordance with the understandings set forth herein or therein.
ARTICLE 21
RIGHT TO ENTER INTO NEW AGREEMENT; CAPACITY EXPANSION
21.1 New Terminalling Services Agreement . Upon termination of this Agreement or a Terminal Service Order for reasons other than (a) a default by Customer pursuant or (b) any other termination of this Agreement or a Terminal Service Order initiated by Customer except upon a default by Provider, Customer shall have the right to require Provider to enter into a new terminalling services agreement with Customer that (y) is consistent with the terms and objectives set forth in this Agreement and (z) has commercial terms that are, in the aggregate, substantially similar to fair market value terms as would be agreed by similarly-situated parties negotiating at arms length at such time; provided, however, that the term of any such new terminalling services agreement shall not extend beyond August 6, 2038.
21.2 Right of First Refusal . In the event that Provider proposes to enter into a terminalling services agreement with a third party upon the termination of this Agreement or a Terminal Services Order for reasons other than (a) a default by Customer or (b) any other termination of this Agreement or a Terminal Service Order initiated by Customer except upon a default by Provider, Provider shall give Customer thirty (30) days prior written notice of any proposed new terminalling services agreement with a third party, including (x) details of all of the
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material terms and conditions thereof and (y) a thirty (30)-day period (beginning upon Customers receipt of such written notice) (the First Offer Period ) in which Customer may make a good faith offer to enter into a new terminalling services agreement with Provider (the Right of First Refusal ). If Customer makes an offer on terms no less favorable to Provider than the third-party offer with respect to such terminalling services agreement during the First Offer Period, then Provider shall be obligated to enter into a terminalling services agreement with Customer on the terms set forth in the notice. If Customer does not exercise its Right of First Refusal in the manner set forth above, Provider may, for the next thirty (30) days, proceed with the negotiation of the third party terminalling services agreement.
21.3 Capacity Expansion . If, during the Term, Provider proposes the construction or acquisition of any new Terminal or related facility that connects to any Terminal facility, any expansion or enhancement of capacity on any existing Terminal or Terminal facility or any construction of new or the expansion of existing storage capacity associated with the Terminal, then:
(a) Provider shall give prior written notice of such proposal to Customer; and
(b) Customer will have a right of first refusal to reserve some portion or all of the additional throughput capacity or storage capacity on commercial terms that are equal or more favorable to Provider than any commercial terms offered to Provider by a third party.
ARTICLE 22
FORCE MAJEURE
22.1 Definition and Notice . As soon as possible upon the occurrence of a Force Majeure event, Provider shall provide Customer with written notice of the event identifying the affected Terminals and facilities (a Force Majeure Notice ). Provider shall also identify in such Force Majeure Notice the approximate length of time that Provider reasonably believes in good faith such Force Majeure shall continue (the Force Majeure Period ). During the pendency of a Force Majeure event, Minimum Commitments may be proportionately reduced for the affected Terminal(s) as provided in Section 22.2 . If Provider advises in any Force Majeure Notice that it reasonably believes in good faith that the Force Majeure Period shall continue for more than twelve (12) consecutive Months, then, subject to Article 23 below, at any time after Provider delivers such Force Majeure Notice, either Party may terminate that portion of this Agreement relating to the affected Terminal(s), but only upon delivery to the other Party of a notice (a Termination Notice ) at least twelve (12) Months prior to the effectiveness of such termination; provided, however, that such Termination Notice shall be deemed cancelled and of no effect if the Force Majeure Period ends prior to the expiration of such twelve (12)-Month period. For the avoidance of doubt, neither Party may exercise its right under this Article 22 to terminate this Agreement as a result of a Force Majeure with respect to any Terminal that has been unaffected by, or has been restored to working order since, the applicable Force Majeure, including pursuant to a Restoration under Article 23 .
22.2 Adjusted Minimum Commitments . If this Agreement is terminated as to a Terminal or facility under this Article 22 , then Customers Minimum Commitments shall be adjusted to the Adjusted Minimum Commitments, by deducting the applicable Stipulated Commitments for the Terminal so removed from this Agreement.
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22.3 Revocation of Customer Termination Notice . Notwithstanding anything herein to the contrary, if Customer delivers a Termination Notice to Provider ( Customer Termination Notice ) and, within thirty (30) days after receiving such Customer Termination Notice, Provider notifies Customer that Provider reasonably believes in good faith that it shall be capable of fully performing its obligations under this Agreement within a reasonable period of time and Customer mutually agrees (which agreement shall not be unreasonably withheld), then the Customer Termination Notice shall be deemed revoked and the applicable portion of this Agreement shall continue in full force and effect as if such Customer Termination Notice had never been given.
ARTICLE 23
CAPABILITIES OF FACILITIES
23.1 Interruptions of Service . Subject to Force Majeure and interruptions for routine repair and maintenance, consistent with customary terminal industry standards, Provider shall use reasonable commercial efforts to minimize the interruption of service at each Terminal and any portion thereof. Provider shall promptly inform Customer operational personnel of any anticipated partial or complete interruption of service at any Terminal, including relevant information about the nature, extent, cause and expected duration of the interruption and the actions Provider is taking to resume full operations, provided that Provider shall not have any liability for any failure to notify, or delay in notifying, Customer of any such matters except to the extent Customer has been materially prejudiced or damaged by such failure or delay.
23.2 Maintenance and Repair Standards . Subject to Force Majeure and interruptions for routine repair and maintenance, consistent with customary terminal industry standards, Provider shall maintain each Terminal in a condition and with a capacity sufficient to throughput a volume of Customers Asphalt at least equal to the respective Minimum Commitments for such Terminal. Providers obligations may be temporarily suspended during the occurrence of, and for the entire duration of, a Force Majeure or other interruption of service that prevents Provider from terminalling the Minimum Commitments hereunder. To the extent Provider is prevented from terminalling volumes equal to the full Minimum Commitments for reasons of Force Majeure or other interruption of service, then Customers obligation to throughput the Minimum Commitments and pay any Shortfall Payment shall be reduced proportionately. At such time as Provider is capable of terminalling volumes equal to the Minimum Commitments, Customers obligation to store or throughput these amounts shall be restored. If, for any reason, the throughput or storage capacity of any Terminal should fall below that required by Customer for that Terminal, then within a reasonable period of time after the commencement of such reduction, Provider shall make repairs to the Terminal to restore the Terminal to the storage or throughput capacity required by Customer ( Restoration ). Except as provided below in Section 23.3 and 23.4 , all of such Restoration shall be at Providers cost and expense, unless the damage creating the need for such repairs was caused by the negligence or willful misconduct of Customer, its employees, agents, representatives or customers or the failure of Customers Asphalt to meet the specifications as provided for in Article 11 .
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23.3 Capacity Resolution . In the event of the failure of Provider to maintain any Terminal in a condition and with a capacity sufficient to throughput a volume of Customers Asphalt as required under this Agreement, then either Party shall have the right to call a meeting between executives of both Parties by providing at least two (2) Business Days advance written notice. Any such meeting shall be held at a mutually agreeable location and will be attended by executives of both Parties each having sufficient authority to commit his or her respective Party to a Capacity Resolution (hereinafter defined). At the meeting, the Parties will negotiate in good faith with the objective of reaching a joint resolution for the Restoration of capacity at the Terminal which will, among other things, specify steps to be taken by Provider to fully accomplish Restoration and the deadlines by which the Restoration must be completed (the Capacity Resolution ). Without limiting the generality of the foregoing, the Capacity Resolution shall set forth an agreed upon time schedule for the Restoration activities. Such time schedule shall be reasonable under the circumstances, consistent with customary terminal industry standards and shall take into consideration Providers economic considerations relating to costs of the repairs and Customers requirements concerning its refining and marketing operations. Provider shall use commercially reasonable efforts to continue to provide storage and throughput of Customers Asphalt at the affected Terminal, to the extent the Terminal has capability of doing so, during the period before Restoration is completed. In the event that Customers economic considerations justify incurring additional costs to restore the Terminal in a more expedited manner than the time schedule determined in accordance with the preceding sentence, Customer may require Provider to expedite the Restoration to the extent reasonably possible, subject to Customers payment, in advance, of the estimated incremental costs to be incurred as a result of the expedited time schedule. Upon completion, Customer shall pay the difference between the actual portion of Restoration costs to be paid by Customer pursuant to this Section 23.3 and the estimated amount paid under the preceding sentence within thirty (30) days after receipt of Providers invoice therefor, or, if appropriate, Provider shall pay Customer the excess of the estimate paid by Customer over Providers actual costs as previously described within thirty (30) days after completion of the Restoration.
23.4 Customers Right To Cure . If at any time after the occurrence of (x) a Partnership Change of Control or (y) a sale of a Refinery, Provider either (a) refuses or fails to meet with Customer within the period set forth in Section 23.3 , (b) fails to agree to perform a Capacity Resolution in accordance with the standards set forth in Section 23.3 , or (c) fails to perform its obligations in compliance with the terms of a Capacity Resolution, Customer may, as its sole remedy for any breach by Provider of any of its obligations under Section 23.3 , require Provider to complete a Restoration of the affected Terminal, subject to and to the extent permitted under the terms, conditions and/or restrictions of applicable leases, permits and/or Applicable Law. Any such Restoration required under this Section 23.4 shall be completed by Provider at Customers cost. Provider shall use commercially reasonable efforts to continue to provide storage and throughput of Customers Asphalt at the affected Terminal, during the period while such Restoration is being completed. Any work performed by Provider pursuant to this Section 23.4 shall be performed and completed in a good and workmanlike manner consistent with applicable industry standards and in accordance with all Applicable Laws, rules and/or regulations. Additionally, during such period after the occurrence of (x) a Partnership Change of Control or (y) a sale of a Refinery, Customer may exercise any remedies available to it under this Agreement (other than termination), including the right to immediately seek temporary and permanent injunctive relief for specific performance by Provider of the applicable provisions of this Agreement, including, without limitation, the obligation to make Restorations as described herein.
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23.5 Dedicated Storage . Dedicated storage tanks and capacities shall be dedicated and used exclusively for the storage and throughput of Customers Asphalt. For those dedicated tanks, Customer shall be responsible for providing all tank heels required for operation of such tanks.
ARTICLE 24
TERMINATION
24.1 Termination for Default . A Party shall be in default under this Agreement if:
(a) the Party materially breaches any provision of this Agreement or a Terminal Service Order (with such material adverse effect being determined based on this Agreement and all Terminal Service Orders considered as a whole), and such breach is not excused by Force Majeure or cured within fifteen (15) Business Days after notice thereof (which notice shall describe such breach in reasonable detail) is received by such Party (unless such failure is not commercially reasonably capable of being cured in such fifteen (15) Business Day period in which case such Party shall have commenced remedial action to cure such breach and shall continue to diligently and timely pursue the completion of such remedial action after such notice); or
(b) the Party (i) files a petition or otherwise commences, authorizes or acquiesces in the commencement of a proceeding or cause of action under any bankruptcy, insolvency, reorganization or similar Applicable Law, or has any such petition filed or commenced against it which is not withdrawn or dismissed within thirty (30) days, (ii) makes an assignment or any general arrangement for the benefit of creditors, (iii) otherwise becomes bankrupt or insolvent (however evidenced) or (iv) has a liquidator, administrator, receiver, trustee, conservator or similar official appointed with respect to it or any substantial portion of its property or assets.
24.2 Rights upon Default . If any of the Parties is in default as described above, then the non-defaulting Party may: (a) terminate this Agreement upon notice to the defaulting Party; (b) withhold any payments due to the defaulting Party under this Agreement; and/or (c) pursue any other remedy at law or in equity.
24.3 Obligation to Cure Breach . If a Party breaches any provision of this Agreement or a Terminal Service Order, which breach does not have a material adverse effect on the other Party, the breaching Party shall still have the obligation to cure such breach.
24.4 Asphalt Removal . Customer shall, upon expiration or termination of this Agreement, promptly remove all of its Asphalt from the Terminals within thirty (30) days of such termination or expiration to the extent such removal is possible within this time frame. In the event all of the Asphalt is not removed within such thirty (30) day period, Customer shall be assessed storage fees to all Asphalt held in storage more than thirty (30) days beyond the termination or expiration of this Agreement until such time Customers entire Asphalt is removed from the Terminals; provided however, that Customer shall not be assessed any storage fees associated with the removal of its Asphalt if Customers ability to remove such Asphalt is delayed or hindered by Provider, its agents or contractors for any reason.
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24.5 Equipment Removal . Customer shall, upon expiration or termination of this Agreement, promptly remove any and all of its owned equipment and restore the Terminals to substantially the same condition as prior to the installation of such equipment.
ARTICLE 25
LIEN WAIVERS
25.1 Provider hereby waives, relinquishes and releases any and all liens, including, without limitation, any and all warehousemans liens, custodians liens, rights of retention and/or similar rights under all Applicable Laws, which Provider would or might otherwise have under or with respect to the Asphalt throughput, stored or handled hereunder. Provider further agrees to furnish documents reasonably acceptable to Customer and its lender(s) (if applicable), and to cooperate with Customer in assuring and demonstrating that Asphalt titled in Customers name shall not be subject to any lien on the Terminals or Providers Asphalt throughput or stored there.
ARTICLE 26
ASSIGNMENT
26.1 Customer Assignment to Third Party . Customer shall not assign any of its rights or obligations hereunder or under a Terminal Service Order without Providers prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed; provided, however, that Customer may assign this Agreement without Providers consent (a) to an affiliate; provided such assignment shall not relieve Customer of its obligations under this Agreement or (b) in connection with a sale by Customer of a Refinery associated with one of Providers Terminals so long as the transferee: (i) agrees to assume all of Customers obligations under this Agreement with respect to the associated Terminal(s); and (ii) is financially and operationally capable of fulfilling the terms of this Agreement, which determination shall be made by Provider in its reasonable judgment.
26.2 Provider Assignment to Third Party . Provider shall not assign any of its rights or obligations hereunder or under a Terminal Service Order without Customers prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed; provided, however, that (a) Provider may assign this Agreement without Customers consent (i) to an affiliate; provided such assignment shall not relieve Provider of its obligations under this Agreement and (ii) in connection with a sale by Provider of one or more of its Terminals so long as the transferee: (1) agrees to assume all of Providers obligations under this Agreement with respect to the associated Terminal(s); (2) is financially and operationally capable of fulfilling the terms of this Agreement, which determination shall be made by Customer in its reasonable judgment; and (3) is not a competitor of Customer; and (b) Provider shall be permitted to make a collateral assignment of this Agreement solely to secure working capital financing for Provider.
26.3 Rights upon Assignment . If either Customer or Provider assigns its rights or obligations under this Agreement or a Terminal Service Order relating to a specific Terminal (other than an assignment to an affiliate), then:
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(a) the Minimum Commitments with respect to such Terminal shall be converted to the Adjusted Minimum Commitments, excluding such transferred Terminal; and
(b) both Customers and Providers obligations shall continue with respect to the remaining Terminals.
26.4 Notification of Assignment . Any assignment thaws not undertaken in accordance with the provisions set forth above shall be null and void ab initio. A Party making any assignment shall promptly notify the other Party of such assignment, regardless of whether consent is required. This Agreement and any Terminal Service Orders shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and permitted assigns.
26.5 Partnership Change of Control . Customers obligations hereunder shall not terminate in connection with a Partnership Change of Control; provided, however, that in the case of any Partnership Change of Control, Customer shall have the option to extend the Term of this Agreement as provided in Section 3.1 . Provider shall provide Customer with notice of any Partnership Change of Control at least sixty (60) days prior to the effective date thereof.
ARTICLE 27
NOTICE
27.1 All notices, requests, demands, and other communications hereunder will be in writing and will be deemed to have been duly given: (a) if by transmission by facsimile or hand delivery, when delivered; (b) if mailed via the official governmental mail system, five (5) Business Days after mailing, provided said notice is sent first class, postage pre-paid, via certified or registered mail, with a return receipt requested; (c) if mailed by an internationally recognized overnight express mail service such as Federal Express or UPS one (1) Business Day after deposit therewith prepaid; or (d) if by e-mail, one (1) Business Day after delivery with receipt confirmed. All notices will be addressed to the Parties at the respective addresses as follows (or to such other address or to such other Person as either Party will have last designated by notice to the other Party):
If to Customer, to :
Western Refining Company, L.P.
19100 Ridgewood Parkway
San Antonio, TX 78259
Attn: General Counsel
If to Provider, to :
Asphalt Terminals LLC
19100 Ridgewood Parkway
San Antonio, TX 78259
Attn: General Counsel
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ARTICLE 28
CONFIDENTIAL INFORMATION
28.1 Confidential Information and Exceptions Thereto . Each Party shall use reasonable efforts to retain the other Parties Confidential Information in confidence and not disclose the same to any third party nor use the same, except as authorized by the disclosing Party in writing or as expressly permitted in this Article 28 . Each Party further agrees to take the same care with the other Partys Confidential Information as it does with its own, but in no event less than a reasonable degree of care. Excepted from these obligations of confidence and non-use is that information which:
(a) is available, or becomes available, to the general public without fault of the receiving Party;
(b) was in the possession of the receiving Party on a non-confidential basis prior to receipt of the same from the disclosing Party (it being understood, for the avoidance of doubt, that this exception shall not apply to information of Provider that was in the possession of Customer or any of its affiliates as a result of their ownership or operation of the Terminals prior to the Commencement Date);
(c) is obtained by the receiving Party without an obligation of confidence from a third party who is rightfully in possession of such information and, to the receiving Partys knowledge, is under no obligation of confidentiality to the disclosing Party; or
(d) is independently developed by the receiving Party without reference to or use of the disclosing Partys Confidential Information.
For the purpose of this Article 28 , a specific item of Confidential Information shall not be deemed to be within the foregoing exceptions merely because it is embraced by, or underlies, more general information in the public domain or in the possession of the receiving Party.
28.2 Required Disclosure . Notwithstanding Section 28.1 above, if the receiving Party becomes legally compelled to disclose the Confidential Information by a court, Governmental Authority or Applicable Law, or is required to disclose by the listing standards of any applicable securities exchange, any of the disclosing Partys Confidential Information, the receiving Party shall promptly advise the disclosing Party of such requirement to disclose Confidential Information as soon as the receiving Party becomes aware that such a requirement to disclose might become effective, in order that, where possible, the disclosing Party may seek a protective order or such other remedy as the disclosing Party may consider appropriate in the circumstances. The receiving Party shall disclose only that portion of the disclosing Partys Confidential Information that it is required to disclose and shall cooperate with the disclosing Party in allowing the disclosing Party to obtain such protective order or other relief.
28.3 Return of Confidential Information . Upon written request by the disclosing Party, all of the disclosing Partys Confidential Information in whatever form shall be returned to the disclosing Party upon termination of this Agreement with respect to the respective Terminal or destroyed with destruction certified by the receiving Party, without the receiving Party retaining copies thereof except that one copy of all such Confidential Information may be retained by a
26
Partys legal department solely to the extent that such Party is required to keep a copy of such Confidential Information pursuant to Applicable Law, and the receiving Party shall be entitled to retain any Confidential Information in the electronic form or stored on automatic computer back-up archiving systems during the period such backup or archived materials are retained under such Partys customary procedures and policies; provided, however, that any Confidential Information retained by the receiving Party shall be maintained subject to confidentiality pursuant to the terms of this Article 28 , and such archived or back-up Confidential Information shall not be accessed except as required by Applicable Law.
28.4 Receiving Party Personnel . The receiving Party will limit access to the Confidential Information of the disclosing Party to those of its employees, attorneys and contractors that have a need to know such information in order for the receiving Party to exercise or perform its rights and obligations under this Agreement (the Receiving Party Personnel ). The Receiving Party Personnel who have access to any Confidential Information of the disclosing Party will be made aware of the confidentiality provision of this Agreement, and will be required to abide by the terms thereof. Any third party contractors that are given access to Confidential Information of a disclosing Party pursuant to the terms hereof shall be required to sign a written agreement pursuant to which such Receiving Party Personnel agree to be bound by the provisions of this Agreement, which written agreement will expressly state that it is enforceable against such Receiving Party Personnel by the disclosing Party.
28.5 Survival . The obligation of confidentiality under this Article 28 shall survive the termination of this Agreement for a period of two (2) years.
ARTICLE 29
MISCELLANEOUS
29.1 Modification; Waiver . This Agreement and any Terminal Service Orders may be terminated, amended or modified only by a written instrument executed by the Parties. Any of the terms and conditions of this Agreement and any Terminal Service Orders may be waived in writing at any time by the Party entitled to the benefits thereof. No waiver of any of the terms and conditions of this Agreement, a Terminal Service Order or any breach thereof, will be effective unless in writing signed by a duly authorized individual on behalf of the Party against which the waiver is sought to be enforced. No waiver of any term or condition or of any breach of this Agreement or a Terminal Service Order will be deemed or will constitute a waiver of any other term or condition or of any later breach (whether or not similar), nor will such waiver constitute a continuing waiver unless otherwise expressly provided.
29.2 Entire Agreement . This Agreement, together with the Schedules, Exhibits, and Terminal Service Orders, constitutes the entire agreement among the Parties pertaining to the subject matter hereof and supersedes all prior agreements and understandings of the Parties in connection therewith.
29.3 Governing Law; Jurisdiction . This Agreement and any Terminal Service Orders shall be governed by the laws of the State of Texas without giving effect to its conflict of laws principles. Each Party hereby irrevocably submits to the exclusive jurisdiction of any federal court of competent jurisdiction situated in the United States District Court for the Western District of
27
Texas, San Antonio Division, or if such federal court declines to exercise or does not have jurisdiction, in the district court of Bexar County, Texas. The Parties expressly and irrevocably submit to the jurisdiction of said Courts and irrevocably waive any objection which they may now or hereafter have to the laying of venue of any action, suit or proceeding arising out of or relating to this Agreement or any Terminal Service Order brought in such Courts, irrevocably waive any claim that any such action, suit or proceeding brought in any such Court has been brought in an inconvenient forum and further irrevocably waive the right to object, with respect to such claim, action, suit or proceeding brought in any such Court, that such Court does not have jurisdiction over such Party. The Parties hereby irrevocably consent to the service of process by registered mail, postage prepaid, or by personal service within or without the State of Texas. Nothing contained herein shall affect the right to serve process in any manner permitted by law.
29.4 Counterparts . This Agreement and any Terminal Service Orders hereunder may be executed in one or more counterparts (including by facsimile or portable document format (pdf)) for the convenience of the Parties hereto, each of which counterparts will be deemed an original, but all of which counterparts together will constitute one and the same agreement.
29.5 Severability . Whenever possible, each provision of this Agreement and any Terminal Service Order will be interpreted in such manner as to be valid and effective under Applicable Law, but if any provision of this Agreement or a Terminal Service Order or the application of any such provision to any Person or circumstance will be held invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, such invalidity, illegality or unenforceability will not affect any other provision hereof or thereof, and the Parties will negotiate in good faith with a view to substitute for such provision a suitable and equitable solution in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid, illegal or unenforceable provision.
29.6 No Third Party Beneficiaries . It is expressly understood that the provisions of this Agreement or any Terminal Service Order do not impart enforceable rights in anyone who is not a Party or successor or permitted assignee of a Party.
29.7 WAIVER OF JURY TRIAL . EACH PARTY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY PROCEEDINGS RELATING TO THIS AGREEMENT OR A TERMINAL SERVICE ORDER, OR ANY PERFORMANCE OR FAILURE TO PERFORM OF ANY OBLIGATION HEREUNDER OR THEREUNDER.
29.8 Schedules . Each of the Schedules attached hereto and referred to herein is hereby incorporated in and made a part of this Agreement as if set forth in full herein.
29.9 Construction and Interpretation . In interpreting this Agreement, unless the context expressly requires otherwise, all of the following apply to the interpretation of this Agreement:
(a) Preparation of this Agreement has been a joint effort of the Parties and the resulting Agreement against one of the Parties as the drafting Party.
(b) Plural and singular words each include the other.
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(c) Masculine, feminine and neutral genders each include the others.
(d) The word or is not exclusive and includes and/or.
(e) The words includes and including are not limiting.
(f) References to the Parties include their respective successors and permitted assignees.
(g) The headings in this Agreement are included for convenience and do not affect the construction or interpretation of any provision of, or the rights or obligations of a Party under, this Agreement.
[Remainder of this page intentionally left blank.]
29
IN WITNESS WHEREOF , the Parties have duly executed this Agreement as of the date first above written.
CUSTOMER: | ||
Western Refining Company, L.P., by | ||
Western Refining GP, LLC, its general partner | ||
By: |
/s/ Stephan E. Tompsett |
|
Name: | Stephan E. Tompsett | |
Title: | Vice President and Treasurer | |
PROVIDER: | ||
Asphalt Terminals LLC | ||
By: |
/s/ Steven M. Sterin |
|
Name: | Steven M. Sterin | |
Title: | President and Chief Financial Officer |
Signature Page
SCHEDULE 4.1
MINIMUM ASPHALT COMMITMENTS
A. |
Minimum Asphalt Storage Commitment |
Terminal |
Asphalt Minimum Storage
Commitment (Barrels) |
|||
Bakersfield, CA |
184,806 | |||
Mojave, CA |
240,000 | |||
Elk Grove, CA |
322,433 | |||
Phoenix, AZ |
172,050 |
B. |
Minimum Asphalt Throughput Commitment |
Description |
Minimum Asphalt
Throughput Commitment (tons/Month) |
|||
Bakersfield, CA |
2,833 | |||
Mojave, CA |
3,542 | |||
Elk Grove, CA |
4,250 | |||
Phoenix, AZ |
12,396 |
Schedule 4.1
SCHEDULE 4.2
DEDICATED TANKS
A. Bakersfield Terminal
Tank Number |
Tank Capacity | |||
PMA-1 |
800 | |||
PMA-2 |
800 | |||
PMA-3 |
800 | |||
PMA-4 |
1,900 | |||
T-1 |
500 | |||
T-10 |
400 | |||
T-11 |
520 | |||
T-1101 |
1,285 | |||
T-1102 |
1,285 | |||
T-12 |
520 | |||
T-14 |
300 | |||
T-15 |
215 | |||
T-16 |
260 | |||
T-17 |
85 | |||
T-18 |
85 | |||
T-19 |
85 | |||
T-2 |
240 | |||
T-20 |
85 | |||
T-21 |
120 | |||
T-22 |
120 | |||
T-23 |
90 | |||
T-24 |
650 | |||
T-25 |
112 | |||
T-25001 |
24,170 | |||
T-3 |
4,200 | |||
T-4 |
550 | |||
T-5 |
520 | |||
T-5901 |
5,963 | |||
T-5902 |
5,963 | |||
T-5903 |
5,963 | |||
T-6 |
520 | |||
T-60001 |
61,250 | |||
T-60002 |
61,250 | |||
T-601RS |
600 | |||
T-602RS |
600 | |||
T-603RS |
600 | |||
T-7 |
520 | |||
T-8 |
520 | |||
T-9 |
360 | |||
Total |
184,806 |
Schedule 4.2
B. Elk Grove Terminal
Tank Number |
Tank Capacity | |||
142 |
155 (OOS)* | |||
180 |
143 | |||
201 |
200 | |||
1000 |
45 | |||
1101 |
1,200 | |||
1401 |
1,300 | |||
1402 |
1,300 | |||
2000 |
143 | |||
100001 |
100,000 | |||
100002 |
100,000 | |||
10001 |
10,000 | |||
10002 |
10,000 | |||
10003 |
10,000 | |||
1B |
94 (OOS) | |||
3001 |
3,000 | |||
3002 |
3,000 | |||
50001 |
50,000 | |||
5001 |
5,000 | |||
5002 |
5,000 | |||
5003 |
5,000 | |||
5004 |
5,000 | |||
5005 |
5,000 | |||
501 |
500 | |||
502 |
500 | |||
503 |
500 | |||
504 |
500 | |||
505 |
500 | |||
506 |
500 | |||
507 |
500 | |||
508 |
500 | |||
509 |
500 | |||
5W |
149 | |||
761 |
750 | |||
762 |
750 | |||
763 |
750 | |||
PMA Mix Tank |
60 | |||
QTS1 |
143 | |||
Total |
322,433 |
Schedule 4.2
C. Phoenix Terminal
Tank Number |
Tank Capacity | |||
25 |
786 | |||
26 |
944 | |||
27 |
266 | |||
28 |
266 | |||
29 |
604 | |||
30 |
604 | |||
49 |
403 | |||
50 |
242 | |||
60 |
242 | |||
70 |
242 | |||
80 |
242 | |||
1 |
1,678 | |||
100 |
419 | |||
10001 |
9,865 | |||
10002 |
9,865 | |||
101 |
486 | |||
102 |
336 | |||
1501 |
786 | |||
1502 |
786 | |||
1503 |
786 | |||
1504 |
786 | |||
1505 |
786 | |||
1506 |
786 | |||
1507 |
786 | |||
1515 |
786 | |||
18 |
507 | |||
19 |
507 | |||
20 |
1,449 | |||
200 |
419 | |||
201 |
486 | |||
202 |
288 | |||
21 |
1,449 | |||
22 |
1,678 | |||
23 |
1,933 | |||
31 |
5,480 |
Schedule 4.2
32 |
5,480 | |||
33 |
1,212 | |||
34 |
1,212 | |||
4 |
486 | |||
420 |
700 | |||
440 |
786 | |||
460 |
786 | |||
480 |
786 | |||
5 |
1,118 | |||
50001 |
50,793 | |||
50002 |
50,793 | |||
8 |
272 | |||
9 |
541 | |||
A |
1,699 | |||
E |
484 | |||
E-2 |
725 | |||
E-3 |
725 | |||
E-5 |
725 | |||
E6 |
725 | |||
G |
484 | |||
H |
484 | |||
J |
486 | |||
K |
486 | |||
L |
483 | |||
M |
483 | |||
PMA mix |
1,118 | |||
PPA |
179 (OOS) | |||
Total |
172,050 |
D. Mojave Terminal
Tank Number |
Tank Capacity | |||
T-2 |
60,000 | |||
T-4 |
60,000 | |||
T-6 |
60,000 | |||
T-8 |
60,000 | |||
Total |
240,000 |
*OOS (Out of Service). For the avoidance of doubt, fees will be assessed only upon in-service dedicated tanks.
Schedule 4.2
SCHEDULE 22.2
STIPULATED COMMITMENTS
A. |
Stipulated Asphalt Storage Commitment |
Terminal |
Asphalt Tankage
Reserved Capacity (Barrels) |
|||
Bakersfield, CA |
184,806 | |||
Mojave, CA |
240,000 | |||
Elk Grove, CA |
322,433 | |||
Phoenix, AZ |
172,050 |
B. |
Stipulated Asphalt Throughput Commitment |
Terminal |
Stipulated Asphalt
Throughput (tons/Month) |
|||
Bakersfield, CA |
2,833 | |||
Mojave, CA |
3,542 | |||
Elk Grove, CA |
4,250 | |||
Phoenix, AZ |
12,396 |
Schedule 22.2
EXHIBIT 1
FORM OF TERMINAL SERVICE ORDER
([ ]- , 20 )
This Terminal Service Order ( Terminal Service Order ) is entered as of , 20 , by and between Western Refining Company, L.P. ( Customer ), and Asphalt Terminals LLC ( Provider ), pursuant to and in accordance with the terms of the Asphalt Terminalling, Transportation and Storage Services Agreement dated as of August 6, 2018, by and between Customer and Provider (as amended, supplemented, or otherwise modified from time to time, the Agreement ).
Capitalized terms not otherwise defined herein shall have the meaning set forth in the Agreement.
Pursuant to Section 7.1 of the Agreement, the Parties agree to the following provisions:
[Insert applicable provisions:
(a) The fee for storage services pursuant to Section 4.2 ;
(b) Allocation of Asphalt throughput capacity at the Terminals and the rates for such throughput services pursuant to Section 4.3 ;
(c) The Asphalt Processing and Blending Services to be provided at the Terminals and the fees for such Asphalt Processing and Blending Services pursuant to Section 4.4 ;
(d) Any additional Asphalt services, if available, to be provided at the Terminals and the rates for such services pursuant to Section 4.5 ;
(e) Surcharges pursuant to Article 6 ;
(f) Any reimbursement related to newly imposed taxes or fees, capital expenditures, or tank cleaning pursuant to Article 9 ;
(g) Terms and conditions of services to be provided hereunder; and
(h) Any other services or terms as may be agreed.]
Except as set forth in this Terminal Service Order, the other terms of the Agreement shall continue in full force and effect and shall apply to the terms of this Terminal Service Order.
[Signature Page Follows]
Exhibit 1
IN WITNESS WHEREOF , the parties hereto have duly executed this Terminal Service Order as of the date first written above.
CUSTOMER: | ||
Western Refining Company, L.P., by Western Refining GP, LLC, its general partner |
By: |
|
Name: Gregory J. Goff | ||
Title: President and Chief Executive Officer | ||
PROVIDER: | ||
Asphalt Terminals LLC |
By: |
|
Name: Steven M. Sterin | ||
Title: President and Chief Financial Officer |
Exhibit 1