Freebird Gas Storage, L.L.C.
First Revised Volume No. 1
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Effective Date: 10/01/2008, Docket: RP08-304-000, Status: Effective
Original Sheet No. 139 Original Sheet No. 139 : Suspended
in its Service Agreements may be impaired, resulting in an interruption in
service. If this happens, capacity will be allocated pursuant to Section 5 of
the General Terms and Conditions of this FERC Gas Tariff. Shipper agrees to
indemnify and hold Freebird harmless for any loss caused by any such
interruption in service.
11. TITLE AND RISK OF LOSS
11.1 Shipper warrants for itself, its successors and assigns, that that it
will have good title to all Gas delivered to Freebird, at the time of delivery
of such Gas to the Storage Facility (for any reason, including, without
limitation, for storage service and/or loan payback) and that the Gas it
delivers hereunder shall be free and clear of all liens, encumbrances, or
claims whatsoever; and that it will indemnify Freebird and save it harmless
from all claims, suits, actions, damages, costs and expenses arising directly
or indirectly from or with respect to the title and/or right to Gas tendered
to Freebird hereunder. Except in those instances when Freebird expressly
takes title to Shipper’s Gas pursuant to its rights under this Gas Tariff, a
Service Agreement or as otherwise allowed by law, Shipper shall at all times
retain title to all Gas delivered by Shipper for its own account to the
Storage Facility (except Gas delivered by Shipper as fuel or loan payback),
provided, however, that such Gas may be commingled with other Gas in the
Storage Facility (subject to Section 11.3 below).
11.2 Shipper shall be in control and possession of the Gas prior to and
including the time of its delivery to Freebird at the Point of
Injection/Withdrawal and at the time of and after redelivery by Freebird to
Shipper at the Point of Injection/Withdrawal. Shipper shall bear the risk of
loss or contamination of such Gas (i) while the gas is in the control and
possession of Shipper or its designated Transporter, (ii) resulting from any
Force Majeure event described in Section 15 and any failure of equipment
resulting therefrom, except to the extent any loss or contamination of Gas is
caused by Freebird’s intentional or negligent act or omission, and (iii)
resulting from any third party action or inaction, and Shipper shall indemnify
and hold Freebird harmless from any damage or injury caused thereby. Freebird
shall be in control and possession of the Gas after the receipt of the same at
the Point of Injection/Withdrawal and until redelivery by Freebird to Shipper
at the Point of Injection/Withdrawal. The risk of loss or contamination of
Gas injected into, parked or stored in and withdrawn from storage shall remain
with Shipper, and Freebird shall not be liable to Shipper for any loss or
contamination of Gas, except to the extent caused by the intentional or
negligent acts or omissions of Freebird. Any losses or contamination of Gas,
unless due to the intentional or negligent act or omissions of Freebird, shall
be shared proportionally by all Shippers, based on each Shipper’s Storage
Inventory, Park Balance and/or Loan Balance, as applicable. In the event of
loss or contamination of Gas for which Freebird is responsible under this
Section 11.2, Freebird shall have the option, in its sole discretion, to
either (a) pay Shipper for such Gas (at the then current market value as
determined in accordance with the applicable Reference Price) or (b) replace
such Gas with an equivalent quantity of Gas. In no event will Freebird’s
liability for any loss or contamination of Gas exceed the current market value
of the Gas at the time of such loss or contamination.
11.3 The Parties acknowledge and agree that gas which is delivered to the
Storage Facility pursuant to any Service Agreement is a fungible good as that
term is defined in Ala. Code § 7-1-201(18), and that the unit of gas is one
(1) Dth. Shipper understands and agrees that any gas delivered shall be
commingled with all other gas previously or subsequently delivered and stored
at the Storage Facility. "Receipts" (as that term is used in Ala. Code §
7-7-207(b)) shall be based on confirmations of delivery by the Transporter
delivering gas to the Storage Facility. Freebird will not be
obligated to deliver to Shipper