ATTACHMENT B SALE # CGS4 GENERAL PURPOSE PowerGyp70 CGS SALES AGREEMENT By and Between SOUTH CAROLINA PUBLIC SERVICE AUTHORITY And THIS POWERGYP70-CGS SALES AGREEMENT (the Agreement ) is entered into as of the day of, 2017 (the Commencement Date ), by and between SOUTH CAROLINA PUBLIC SERVICE AUTHORITY ( Santee Cooper ), a body corporate and politic created by an act of the South Carolina State Legislature, and ( Buyer ). For the purposes of this Agreement, Santee Cooper and Buyer shall sometimes be referred to herein collectively as Parties and individually as a Party. RECITALS WHEREAS, Santee Cooper operates an electric generating station known as Cross Generating Station in Pineville, SC (the Station ). Production of electricity at the Station results in a by-product known as gypsum which is stored in on-site storage ponds at the Station; WHEREAS, Santee Cooper desires an economical and environmentally beneficial use for the gypsum excavated from the storage pond located at the Station (the PowerGyp70- CGS or Material ); WHEREAS, Buyer is engaged in the business of ; WHEREAS, Buyer wishes to purchase the PowerGyp70-CGS for ; and WHEREAS, both Parties desire to pursue the potential and environmental and economic benefits associated with the use of PowerGyp70-CGS in the production of ; NOW THEREFORE, for performance of the mutual covenants and promises contained herein, the receipt and sufficiency of which is acknowledged, the Parties agree as follows: AGREEMENT Section 1 Supply of PowerGyp70-CGS to Buyer. A. Quantity. Buyer shall purchase a minimum of 6,000 US tons of Material per month during the Term of this Agreement at Santee Cooper s discretion, provided Santee Cooper has Material available, and contingent upon Santee Cooper s ability to meet all
other contractual obligations entered into prior to the Commencement Date of this Agreement. Santee Cooper does not guarantee that the PowerGyp70-CGS will be available in any quantity at the Station during the Term of the Agreement. Buyer understands and acknowledges the PowerGyp70-CGS is a coal combustion residual product produced in the normal operation of the Station, and that Santee Cooper may only sell to Buyer an amount of PowerGyp70-CGS which has become available in such normal operation, subject to the quantity terms established herein. Nothing in this Agreement shall interfere with Santee Cooper s right, in its sole and unfettered discretion, to operate or not operate the Station as it sees fit, or to make changes in the operation of the Station or its fuel source that would affect the quality or quantity of by-product produced. B. Quality Specifications. Santee Cooper makes no guarantee, express or implied, that the PowerGyp70-CGS will meet any quality specifications for use in any product. The PowerGyp70-CGS is not screened and may contain foreign material. SANTEE COOPER MAKES NO WARRANTY, EXPRESSED OR IMPLIED, INCLUDING WARRANTY OF MERCHANTABILITY OR OF THE FITNESS OF POWERGYP70-CGS HEREUNDER FOR ANY PURPOSE. C. Transportation, Title, and Risk of Loss. Buyer shall be responsible for loading and transporting the PowerGyp70-CGS from the Station. Title to and risk of loss with respect to the PowerGyp70-CGS purchased by Buyer under this Agreement shall pass from Santee Cooper to Buyer at the time of loading. D. Santee Cooper s Right to PowerGyp70-CGS. Santee Cooper shall have the right to utilize PowerGyp70-CGS at the Station for purposes other than Buyer s use as stated herein and shall not be required to provide Buyer with any quantity of PowerGyp70- CGS. Section 2 Term. The effective date of this Agreement shall be the Commencement Date and shall terminate on December 31, 2017 (the Term ). This Agreement may be extended for an additional one year Term, if mutually agreeable to both Parties. The one year extension provision shall not exceed a total of two-one year renewals. Section 3 Pricing. A. Pricing of PowerGyp70-CGS. Buyer agrees to pay to Santee Cooper ($ ) per ton of PowerGyp70-CGS loaded into Buyer s trucks for the Term of this Agreement. Buyer and Santee Cooper agree that Santee Cooper is providing the PowerGyp70-CGS as a useful product or intermediate to Buyer for market value. Page 2 of 10
Santee Cooper is not selling, nor is Buyer buying the PowerGyp70-CGS for disposal. B. Weighing. Buyer will weigh-in and out each load of PowerGyp70-CGS utilizing Santee Cooper scales at the Station, which determination shall be final. Santee Cooper will provide Buyer s drivers with the weight tickets for all PowerGyp70- CGS transported from the Station. Santee Cooper will retain and record a copy of the weight tickets for invoicing purposes. If the Station s scales become inoperable, the average weight of the preceding five truckloads weighed at the Station will be used to determine quantity. C. Payment Terms. Buyer shall pay Santee Cooper by the fifteenth day of each month for all Material picked up during the previous month. Payments from Buyer shall be based on the weight tickets provided by Santee Cooper. Section 4 Buyer Operations at the Station. A. Equipment and Labor. Buyer shall provide all equipment, labor and materials necessary for its operations at the Station. The PowerGyp70-CGS will be loaded in and transported by Buyer vehicles. Buyer vehicle operators shall be appropriately licensed and trained for the equipment and load under the operator s control. Buyer shall maintain its equipment and improvements in good order and condition. B. Delivery. Santee Cooper shall be responsible for excavating the PowerGyp70-CGS. Buyer shall be responsible for the loading and transportation of the PowerGyp70-CGS from the Station to its destination(s). Buyer may load and transport PowerGyp70 CGS between Monday through Friday and between the hours of 7:00 a.m. to 5:00 p.m. Santee Cooper will notify Buyer when it has PowerGyp70-CGS available for Buyer s purchase. Buyer may call Santee Cooper to inquire as to the availability of the PowerGyp70-CGS. Santee Cooper shall provide Buyer with the truck route through the Station and location for Buyer s pickup of the PowerGyp70-CGS. C. Safety and Compliance with Laws. Buyer shall follow all Authority safety requirements while on site at the Station. Buyer shall conduct its operations at the Station subject to and in compliance with applicable state, federal, and local laws and such rules and regulations respecting sanitation, health, safety, and the environment as Santee Cooper and/or its agents may reasonably prescribe from time to time including, but not limited to, the information contained in the video provided by Santee Cooper. Buyer shall take all necessary or advisable precautions for the safety of all persons or property in connection with its operations and attend all on-site contractor required safety training. In case of emergency involving danger to life or property, Buyer may act at its discretion to prevent injury or damage to the threatened life and property. The term laws as used Page 3 of 10
herein shall be construed as including administrative rules and regulations. Buyer shall be responsible for complying with changes in regulations and any new regulations that become effective during the Term of the Agreement. Buyer shall provide documentation of compliance with any and all applicable laws and regulations as requested or required. D. Improvements. Buyer shall submit to Santee Cooper complete plans and specifications of any improvements to be placed on Santee Cooper s property at the Station, and shall obtain written permission from Santee Cooper prior to commencement of construction of said improvements. E. No Interference with Authority Operations. While on Station property, Buyer shall at all times use commercially reasonable efforts to minimize the possibility of any conflict or interference with the activities, operations, or processes of Santee Cooper at the Station. Section 5 Indemnification and Insurance. A. Indemnification by Buyer. To the extent allowed by law, Buyer shall indemnify and hold Santee Cooper, its agents and employees harmless from and against all liability claims and demands on account of damages to persons or property, including death to employees of Buyer or its suppliers or contractors arising out of or connected with the performance or non-performance of this Agreement caused by the negligence of Buyer, its contractors, suppliers, agents, employees, or other Party affiliated with Buyer. Buyer shall at its own expense, defend any and all actions based upon the claims described in this paragraph and pay all attorney fees, costs, and expenses arising therefrom. B. Indemnification by Santee Cooper. To the extent allowed by law, Santee Cooper shall indemnify and hold Buyer its agents and employees harmless from and against all liability claims and demands on account of damages to persons or property, including death to employees of Santee Cooper or its suppliers or contractors arising out of or connected with the performance or non-performance of this Agreement caused by the negligence of Santee Cooper, its contractors, suppliers, agents, employees, or other Party affiliated with Santee Cooper. Santee Cooper shall at its own expense, defend any and all actions based upon the claims described in this paragraph and pay all attorney fees, costs, and expenses arising therefrom. C. Resale of Material. Santee Cooper consents to Buyer s resale of the PowerGyp70- CGS to third parties on terms negotiated and agreed to by Buyer in its sole and unfettered discretion. Buyer agrees that Santee Cooper shall not be liable for, and Buyer shall indemnify and hold Santee Cooper harmless for, any and all losses, liabilities, damages, claims (including, without limitation, claims for personal injury, Page 4 of 10
bodily injury, illness, death, or property damage), penalties, fines, and judgments caused by Buyer s resale of the PowerGyp70-CGS. D. Limitations. Under no circumstances shall either Party be liable to the other for any special, indirect or consequential loss or damage whether or not such loss or damage is caused by the fault or negligence of such Party, its employees, agents, or subcontractors of any tier. E. Insurance. Without limiting any of the other obligations or liabilities of Buyer, Buyer shall provide and maintain, throughout the Term of the Agreement, insurance coverage as follows: 1. Workers' Compensation a. Statutory - Subject to the laws of the State of South Carolina b. Employer's Liability i. Bodily injury by accident - $500,000 each accident ii. Bodily injury by disease - $500,000 each employee 2. Commercial General Liability - Occurrence Form a. Minimum $1,000,000 limit - Bodily injury/property damage unless checked below: $2,000,000 minimum limits required b. If commercial general liability coverage is provided: Coverage A should include premises, operations, products and completed operations, independent contractors, contractual liability covering this Agreement, (subject to the policy terms and conditions), damage to premises rented to you and broad form property damage coverages. Coverage B should include personal injury and advertising injury. Coverage C should include medical payments. 3. Business Automobile Liability Minimum limit of $500,000 - bodily injury and property damage, unless checked Page 5 of 10
below: $1,000,000 minimum limits required Automobile liability coverage is to include bodily injury and property damage arising out of operation, maintenance or use of any auto, including owned, nonowned and hired automobiles and employee non-ownership use. 4. Certificates of Insurance Section 6 Termination. Certificates of such insurance are to be provided to Santee Cooper before the provision of any services under this Agreement. Buyer shall notify Santee Cooper at least thirty (30) days in advance of any policy cancellation or adverse change. New certificates of insurance are to be provided to Santee Cooper at least fifteen (15) days prior to coverage renewals. A. Without Cause. This Agreement may be terminated without cause by either Party at any time with at least thirty (30) days notice prior to the termination s effective date. B. For Cause. The Agreement may be terminated under the following conditions: 1. Either Party may terminate this Agreement immediately if the other Party breaches this Agreement in any material respect and fails to cure such breach within thirty (30) days of the date of written notice of the breach from the non-breaching Party; 2. Either Party may terminate this Agreement upon the filing of any petition by the other Party in bankruptcy or any voluntary proceeding related to insolvency, receivership, liquidation, or comparable proceeding or any assignment for the benefit of creditors; 3. Either Party may terminate this Agreement if changes to environmental rules, regulations, or laws prohibit the use of PowerGyp70-CGS for beneficial use. 4. Either Party may terminate this Agreement if a Force Majeure condition, as defined herein, shall continue or reasonably be expected to continue for more than sixty (60) days. 5. Either Party may terminate this Agreement if changes in current statutes, regulations, ordinances, or other law, or changes in the manner of enforcing current statutes, regulations, ordinances, or other law wholly or partially prevents or delays the transportation of PowerGyp70-CGS by vehicle, which, as of the time Page 6 of 10
of the execution of this Agreement, requires its operator to have a Class A South Carolina Driver s License. C. Removal of Equipment and Improvements. Buyer shall, within thirty (30) days of the termination date, remove all of its improvements and equipment from the Station and shall within such thirty (30) day period restore the premises as near as possible to the condition they were in prior to the effective date of this Agreement. Section 7 General Terms. A. Governing Law. This Agreement shall be governed by South Carolina law regardless of the place of execution. Any dispute in connection with this Agreement, including its validity, shall be exclusively submitted to the Court of Common Pleas of Berkeley County, South Carolina with subsequent jurisdiction to any appellate courts therefrom. B. Subcontractors. Buyer shall not subcontract its obligations under this Agreement without the prior written consent of Santee Cooper. Buyer shall require any subcontractors to maintain the insurance required of Buyer hereunder. C. Notices. Except for communications to Buyer regarding PowerGyp70-CGS delivery availability and scheduling, all notices given under this Agreement must be in writing. Each Party must accept and claim the notices given by the other. Unless otherwise provided by law, notices may be given by (i) personal delivery; (ii) certified mail, return receipt requested; or (iii) recognized overnight courier service. Notices shall be effective on receipt (in the case of personal delivery), two (2) business days after deposit in the mail (in the case of certified mail), or on the date of confirmation of delivery (in the case of overnight courier service) and shall be addressed and directed to the Party to receive it as follows: As to Seller: South Carolina Public Service Authority One Riverwood Drive P.O. Box 2946101 Moncks Corner, SC 29461 Attn: Supervisor, After Market Materials Services As to Buyer: Company Name Address Attn: D. Assignment. This Agreement shall inure to the benefit and be binding on the Parties, successors, and legal representatives of the Parties. This Agreement shall not be Page 7 of 10
assigned, in whole or in part, except upon the written consent of the non-assigning Party, which shall not be unreasonably held. E. Severability. If any provision of this Agreement is held invalid or unenforceable by a court of law or regulatory agency with jurisdiction over the Parties, or deemed unlawful because of a statutory change, it is the intent of the Parties that such provision or portion thereof shall be modified or deleted in such a manner so as to make such provision or portion thereof, as modified, legal, and enforceable to the fullest extent permitted under applicable law, and, notwithstanding such modification or deletion, all other provisions of this Agreement shall be construed to remain fully valid, enforceable, and binding on the Parties, provided that no such modification or deletion shall be made if it materially changes the economic benefit of this Agreement to either Party. F. Waiver. Waiver of any specific terms or conditions of this Agreement does not constitute a general waiver or amendment to this Agreement, nor the relinquishment of any rights under this Agreement. G. Force Majeure. Delays or failure of either Party in the performance of its obligations, other than the payment of any amounts due and payable under this Agreement, shall be excused if and to the extent caused by circumstances beyond the reasonable control of the Party affected, including, but not limited to, fire, flood, storm, or other acts of God, explosion, riot, war, sabotage, or strikes, provided that prompt notice of such delay is given and the Party affected is diligent in attempting to remove such cause, except that each Party shall be entitled to resolve any of its own strikes in its own sole discretion. For the avoidance of doubt, the failure of a Party s contractor or agent to perform shall not constitute an event of force majeure unless the event which caused such contractor or agents failure was itself beyond the reasonable control of such contractor or agent, prompt notice of the delay was given, and such contractor or agent was diligent in attempting to remove such cause, except that said contractor or agent shall be entitled to resolve any of its own strikes in its own sole discretion. If the event of a delay or failure of a Party extends for sixty (60) days or longer, the Party not declaring Force Majeure may terminate this Agreement thereafter upon written notice to the other. H. Drug Free Workplace Certification. The State of South Carolina has amended Title 44, Code of Laws of South Carolina, 1976, relating to health, by adding Chapter 107, so as to enact the Drug-Free Workplace Act. Buyer is required to provide such certification by signing and returning the attached Certification Regarding Drug-Free Workplace Requirements form (Appendix A). I. Relationship of the Parties. Nothing contained in this Agreement shall be construed as creating the relationship of principal and agent, a partnership, or joint venture between Page 8 of 10
the Parties. J. Confidentiality. Buyer and Santee Cooper agree to retain in confidence, to the extent permitted by law, this Agreement and any information obtained as a result of negotiation and performance of this Agreement which either Party identifies to the other as being proprietary in nature. It is agreed, however, that such information may be disclosed to each Party s attorneys, auditors, accountants, and consultants who also agree to such confidentiality. Further, notwithstanding any other provision of this Agreement, disclosure of confidential or proprietary information shall not be precluded if such disclosure (a) is in response to a valid order of a court or other governmental body, including the South Carolina Freedom of Information Act to which Santee Cooper is subject; provided, however, that the responding Party shall first have given notice to the other Party hereto; (b) is otherwise required by law; or (c) is otherwise necessary to establish rights or enforce obligations under this Agreement, but only to the extent that any such disclosure is necessary. K. Headings. The headings of this Agreement are for convenience only and shall not be considered in construing this Agreement. L. Taxes and Permits. Each Party shall be responsible for paying all taxes, levies, governmental impositions, assessments, fees, and other governmental charges, and for securing in a timely manner all permits and licenses applicable to the performance of its obligations under this Agreement. M. Entire Agreement. This Agreement constitutes the entire Agreement between the Parties regarding its subject matter. No change or addition may be made to this Agreement except by written amendment executed by the Parties. Page 9 of 10
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized representatives as of this day and year first above written. SOUTH CAROLINA PUBLIC SERVICE AUTHORITY By: Mark Shepherd Supervisor, After Market Materials Services By: Sam Bennett VP, Administration By: Jane Hood VP, Environmental, Property, and Water Systems Management BUYER INFORMATION By: Print Name: Title: Page 10 of 10
APPENDIX A SOUTH CAROLINA PUBLIC SERVICE AUTHORITY CERTIFICATION REGARDING DRUG-FREE WORKPLACE REQUIREMENTS (CONTRACTOR / VENDOR OTHER THAN INDIVIDUALS) This certification is required by the Drug-Free Workplace Act, Act No. 593 of 1990. The regulations require certification by CONTRACTORS / Vendors prior to award, that they will maintain a drug-free workplace. The certification set out below is a material representation of fact upon which reliance will be placed when determining the award of a contract / grant. False certification or violation of the certification shall be grounds for suspension of payments, suspension or termination of contracts / grants, or government-wide suspension or debarment. The CONTRACTOR / Vendor certifies that it will provide a drug-free workplace by: (1) Publishing a statement notifying employees that the unlawful manufacture, distribution, dispensing, possession or use of a controlled substance is prohibited in the CONTRACTOR'S / Vendor's workplace and specifying the actions that will be taken against employees for violation of the prohibition; (2) Establishing a drug-free awareness program to inform employees about: (a) The dangers of drug abuse in the workplace; (b) The CONTRACTOR'S / Vendor's policy of maintaining a drug-free workplace; (c) Any available drug counseling, rehabilitation, and employee assistance programs; and (d) The penalties that may be imposed upon employees for drug violations; (3) Making it a requirement that each employee to be engaged in the performance of the contract / grant be given a copy of the statement required by paragraph (1); (4) Notifying the employee in the statement required by paragraph (1) that, as a condition of employment under the contract / grant, the employee will: (a) (b) Abide by the terms of the statement; and Notify the employer of any criminal drug statute conviction for a violation occurring in the workplace no later than five days after the conviction; (5) Notifying the using agency within ten days after receiving notice under subparagraph (4) (b), from an employee or otherwise receiving actual notice of the conviction; (6) Taking one of the following actions, within 30 days of receiving notice under subparagraph (4) (b) with respect to any employee who is convicted - (a) (b) Taking appropriate personnel action against the employee, up to an including termination; or Requiring the employee to participate satisfactorily in a drug abuse assistance or rehabilitation program approved for such purposes by a Federal, State, or local health, law enforcement, or other appropriate agency; (7) Making a good faith effort to continue to maintain a drug-free workplace through implementation of paragraphs (1), (2), (3), (4), (5) and (6). CONTRACTOR / Vendor Name (as appropriate) Contract / Grant Number Printed Name Signature Date 90-001