01-26-2015 Council Packet - Laserfiche WebLink

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so far as possible, be remedied with all reasonable dispatch. The term force majeure shall not apply to those events which merely make it more difficult or costly for Seller or Buyer to perform their obligations hereunder. Buyer and Seller further agree that at the conclusion of any force majeure event, neither Buyer nor Seller shall have any obligation to each other with respect to any quantities of Product not delivered as a consequence of such force majeure event, except that Buyer shall remain liable to Seller for any and all Loss, as set forth in Paragraph 7 above, incurred by Seller as a result of such Force Majeure event, or if Seller realizes a gain from such Force Majeure event (ie, one, in a back-to-back fuel supply arrangement, if fuel prices rise and Buyer can not take delivery and Seller sells the Fuel to a third party at a higher price, the gain is the difference between the contract price per the Fixed Price Supply Agreement and the price at which the Fuel is sold to a third party, multiplied by the gallons sold, or two, in a transaction hedged by Seller, if the price increases, the gain is the difference between the NYMEX futures price on the day the contract is bought and the date the contract is sold by Seller multiplied by the volume for which Buyer claims Force Majeure), then Seller shall pay such gain to the Buyer (less $0.0300 per gallon). No condition of force majeure shall operate to extend the terms of any supply agreement. Seller shall not be liable for failure to perform when such failure is occasioned or caused by circumstances beyond its control. 13. INDEMNIFICATION — Buyer agrees to defend and indemnify Seller (and its officers, directors, employees, successors and assigns) against all claims, suits, liabilities, fines, penalties, assessments, losses and expenses (including attorney's fees and expenses of litigation) arising out of Buyer's business operations, including but not limited to any claims for property damages, personal injuries, or death, from leakage or spillage of product, or from any reason whatsoever associated with Buyer's business operations except to the extent caused by the negligence or willful misconduct of Seller. This indemnification provision shall survive any expiration or termination of this contract. 15. FUEL STORAGE TANKS - 'The parties hereto agree that Buyer is both owner and operator of all of the motor fuel storage tanks, pipes, pumps and other related equipment (the "Fuel Storage Tanks") in which Mansfield is to place the Petroleum Products acquired by Buyer pursuant to this Agreement. Mansfield has no ownership interest, right or responsibility whatsoever regarding any of such Fuel Storage Tanks. Buyer hereby represents and warrants to Mansfield that all of the Fuel Storage Tanks of Buyer which will be utilized in connection with the handling of the Petroleum Products being acquired by Buyer from Mansfield are in good condition, free of leaks and otherwise in compliance with all applicable rules and regulations applicable to such Fuel Storage Tanks. Buyer must notify Mansfield prior to a delivery if the Fuel Storage Tank is prohibited from receiving Petroleum Products for any reason, including if prohibited by applicable governmental authorities. Buyer acknowledges that the leakage of Petroleum Products from the Fuel Storage Tanks is a matter that is solely the responsibility of Buyer. Buyer agrees that should any leaks be detected, then Buyer will take any and all action required to promptly repair such leak and, at its expense, perform any clean-up that may be required for compliance with requirements of all laws and regulations of the United States and of the state in which the Fuel Storage Tanks are located. Buyer further agrees that it will promptly notify Mansfield in the event any such leaks are detected so that no further product will be deposited into such Fuel Storage Tanks until such leaks are properly repaired.