(c) It is the responsibility of CE to comply with all relevant reporting obligations under the Emergency Planning and Community Right-to-Know Act of 1986 (SRA Title III) and any other statute and regulation concerning the storage, handling or use of Product or resulting from the presence of Product supplied under this Agreement. Further, it is the responsibility of CE to warn and protect PTCs employees and others exposed to the hazards posed by storage and use of Product. Attached to this Agreement as Exhibit C is the Material Safety Data Sheet which describes Product.(i) Incentives and Carbon Credits. CE shall retain the rights to (a) any federal or state tax credits associated with the collection, production, transfer or sale of LNG fuel; (b) any emission reduction credits required or available with respect to the sale or use of LNG fuel and/or the installation and operation of each Station; and (c) any credits or payments associated with the reduction in or avoidance of Greenhouse Gas emissions with respect to the sale or use of the LNG fuel, including emission reduction credits, low-carbon fuel standard credits, verified emission reductions, voluntary emission reductions, offsets, allowances, voluntary carbon units, avoided compliance costs, emission rights and authorizations and CO2 reduction and sequestration (collectively, Greenhouse Gas Emission Reduction Credits). For purposes hereof Greenhouse Gas means carbon dioxide (CO2), methane (CH4), nitrous oxide (NO2), hydroflourocarbons, perflourocarbons, sulpher hexafluoride, or any other substance or combination of substances that may become regulated or designated as Greenhouse Gases under any federal, state or local law or regulation, or any emission reduction registry, trading system, or reporting or reduction program for Greenhouse Gas emission reductions that is established, certified, maintained or recognized by any international, governmental (including U.N., federal, state or local agencies) or non-governmental agency from time to time which relate to this Agreement and LNG fuel. After the Capital Recovery Period (as defined below) CE shall remit to PTC [*****] of any net profits (after deducting any reasonable brokerage fees, verification and registration costs including internal CE costs) that may be realized by CE with respect to the sale of any voluntary
26. Representation Regarding Authority to Sign Agreement. Each of the representatives of the Parties signing this Agreement warrants and represents to the other that he, she or it has the actual authority to sign this Agreement on behalf of the Party for whom he, she or it is purporting to represent. (b) Notices. Notices pertaining to this Agreement shall be in writing and shall be transmitted either by personal delivery, facsimile, or by a recognized national overnight delivery carrier and shall be deemed to be delivered upon receipt. The addresses set forth below shall be the addresses used for notice purposes unless written notice of a change of address is given: (a) Individual Premises Capital Recovery Period. It is the intent of the Parties that CE will recover all its capital investment for the Station at the Premises, including all reasonable costs incurred during the permitting, design, and construction of each Station or any capital upgrade to a Station, plus [*****] on the amount of such capital expenditures (the Capital Recovery) before any payments are made to PTC with respect to such Station. This payment shall be made on a Station by Station basis and shall not be construed as an overall capital recovery period. However, until such time during the Term as CE has achieved its Capital Recovery, CE agrees to pay PTC the amount of [*****] per DGE sold at each Station as rental payment. Rental payments relating to this Section shall be made by CE on a monthly basis within thirty (30) calendar days following the end of each calendar month and will be subtracted when calculating CEs Capital Recovery for each Station.(a) Maintenance of Premises. PTC shall maintain the Premises and the real property in a clean, safe, and commercially reasonable condition, including ingress to, and egress from, each Station.(f) CEs Costs. Except as may be separately agreed to by PTC and CE in writing, CE shall not charge PTC for costs incurred in providing the services described in this Agreement. CE shall be responsible for any and all taxes associated with each Station and its operation, including but not limited to rental taxes, ad valorem or possessory interest taxes, personal property taxes, real property taxes, income taxes and fuel taxes.
24. Additional Documents. The Parties agree to execute and to deliver to each other any and all other additional documents and to take any additional steps reasonably necessary to complete, to document and to carry out the business transaction contemplated by this Agreement.general contractor. CE agrees to indemnify and hold harmless PTC for any violation or failure to comply with any applicable laws or regulations relating to the construction of the Stations; or failure to pay any contractor, subcontractor or supplier. CE and/or CECIs Construction shall not unreasonably interfere with or impede PTCs business. Further, CE and CECI may not shut down any diesel island or pump without the prior written consent of PTCs Vice President of Development and Construction. Finally, CE and/or CECI agree to have all liens placed on PTCs premises due to CE and/or CECIs activities either removed or bonded within thirty (30) days of notice of said lien.(c) Further notwithstanding the above, upon a material breach of this Agreement, the non-breaching party shall have the right to terminate this Agreement for cause upon thirty (30) days prior written notice and opportunity to cure, except for a monetary breach in which the breaching party shall only have ten (10) calendar days of prior written notice and opportunity to cure. Except for a monetary breach, where it is not commercially reasonable to fully effect a cure of a breach within the thirty (30) day period set forth above, the Party in breach shall not be deemed to be in default of the Agreement and subject to termination for cause where it commences implementation of the cure within such thirty (30) day period and thereafter proceeds diligently to cure the breach.
28. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the respective heirs, successors, assigns, affiliates and personal representatives of the Parties.(b) Notwithstanding the above, both CE and PTC shall have the right to terminate this Agreement at any time during the Term in the event either CE or PTC enters into bankruptcy proceedings. (d) Maintenance. CE shall provide scheduled, routine maintenance service for the Term of this Agreement for each Station and shall repair, or replace, any defective parts or equipment at its sole expense. CE shall also perform other necessary maintenance, repairs or environmental cleanups, including emergency repairs/remediation, at its sole expense, in order to keep the Stations operating in a good and proper manner. CE shall be available to provide emergency repair service on a 24-hour, 7-day per week basis, and will provide an emergency contact telephone number to PTC. In the event of an emergency at a Station, CE shall respond as soon as is commercially reasonable following notification by PTC or the automatic Station notification system, and will restore the operation of the Station as soon as possible using commercially reasonable efforts. However, any maintenance or repair costs incurred due to damage or abuse by PTCs personnel shall be billed to PTC at CEs then-existing rates with valid documentation. (b) Except to the extent that liabilities arise from PTCs or its employees, agents, contractors or subcontractors negligence or misconduct, CE agrees to indemnify, defend and protect PTC and its officers, directors, agents and employees from and against and hold PTC and its officers, directors, agents and employees harmless and free from any and all liability, loss, cost, expense or obligation, including without limitation reasonable attorneys fees, court costs and other expenses, including without limitation, those of appeal, on account of or arising out of injury to or death of any person or persons or damage to or loss of use of property, from whatever cause, occurring during the Term related in any way to the construction or operation of each Station by CE (except for any aspect of Stations operated by PTC or its employees or agents), sale of Product by CE to Third-party users, environmental contamination of the property by CE, negligence or willful misconduct or violation of law by CE or its employees or agents, or material breaches of this Agreement by CE.27. Entire Agreement. This Agreement and its exhibits and schedules contain the entire agreement between the Parties and it supersedes any prior written or oral agreements between the Parties concerning the subject matter of this Agreement for these Premises only (the Liquefied Natural Gas Fueling Station and LNG Sales Agreement executed April 15, 2009 between the Parties shall remain in full force and effect for the Baytown, Texas location). There are no representations, agreements, or understandings between the Parties relating to the subject matter of this Agreement which are not fully expressed within this Agreement and its exhibits and schedules.18. No Joint Venture. CE shall perform its duties herein as an independent contractor. Nothing contained herein shall be considered to create the relationship of employer and employee, partnership, joint venture or other association between the Parties.25. Negotiated Transaction. The drafting and negotiation of this Agreement has been participated in by all of the Parties. For all purposes, this Agreement shall be deemed to have been drafted jointly by each of the Parties.20. Severability. If any provision of this Agreement or the application thereof to any person or circumstances shall to any extent be held in any proceeding to be invalid or unenforceable, the remainder of this Agreement shall be valid and enforceable to the fullest extent permitted by law, but only if, and to the extent, such enforcement would not materially and adversely alter the Parties essential objectives as expressed herein.
19. Waiver. No waiver by either Party of any one or more defaults by the other Party in the performance of any provisions of this Agreement shall operate or be construed as a waiver of any other default or defaults, whether of a like or different character. No waiver or modification of this Agreement shall occur as the result of any course of performance or usage of trade.
(c) Clear Title. PTC is the owner of the Premises, and shall not allow any lien or encumbrance to materially affect the Stations and CEs use of the Premises or CEs or PTCs performance hereunder; provided however, PTC shall be allowed to encumber or lien the Premises. CE shall be the owner of each Station and its parts and equipment. CE shall have the right to grant a lien or encumbrance against its right, title and interest in the Stations only to a third party for financing purposes; provided, however, that CE shall not permit any liens or encumbrances of any kind to be placed on the Premises, or PTCs real property and shall promptly discharge, at its sole expense, any and all mechanics, laborers or materialmans liens, encumbrances or charges against the Premises or Real Property related to its performance under this Agreement.21. Governing Law This Agreement shall be subject to and construed in accordance with the laws of the State of Delaware, without regard to conflict of law.Station means the LNG fueling equipment for refueling LNG vehicles designed, constructed, operated and maintained by CE as described on Schedule 1 attached hereto pursuant to this Agreement (does not include real property). (d) Memorandum of Agreement. Upon CEs request, PTC shall execute a memorandum reflecting this Agreement and the personal property interest of CE in recordable form agreeable to both parties which reflects CEs interest in each Station. CE shall be responsible for all reasonable costs related thereto, including but not limited to the execution, development and recording. 23. Attorneys Fees. If either party attempts to enforce the terms of this Agreement or brings an action at law or equity is commenced concerning this Agreement, the prevailing party in such matter shall be entitled to the payment of reasonable attorneys fees and costs, in addition to any other relief which may be awarded to that Party.(b) Signage. PTC shall allow CE to display its signage on equipment, canopy, roadside signs, the marquee, and printed material as allowed by law and as agreed to by PTC in writing. Such signage shall jointly display PTC and CE brands. CE shall be responsible for obtaining all additional permits, variances or ordinances required, at its sole expense, for obtaining the additional signage. CE also agrees to pay for any costs incurred in re-printing, manufacturing, or re-issuing any sign that adds CEs brand name. CE shall also be responsible for the payment of its pro-rata share of any CE signage used on PTCs billboard advertisements.
Notwithstanding anything contained herein to the contrary, under no circumstances will PTC be liable for contribution towards negative or loss net earnings from the Stations. All CE income taxes payable by CE with respect to Station net earnings retained or paid to CE shall be the responsibility of CE and all income taxes payable by PTC with respect to Station net earnings paid to PTC shall be the responsibility of PTC.(a) Both Parties shall carry Comprehensive Commercial General Liability Insurance, including blanket contractual liability, personal injury and property damage, to a combined single limit of not less than $25,000,000. Excess liability or umbrella liability coverage may be used to evidence or provide limits in addition to primary limits of no less than $1 million on the Comprehensive Commercial General Liability policy. The parties agree to list one another as an additional insured. Naming each other as an additional insured shall not derogate from the provisions of indemnification of this contract.