Common use of Ability to Deliver Clause in Contracts

Ability to Deliver. (i) On and after the Commencement Date, Seller shall own, lease or have the right to use sufficient Tank Trucks to meet Seller’s delivery obligations under this Contract on a 24 hour-a-day, 365-day-a-year basis; (2) all such fuel tanker trucks and tank trailers used for deliveries shall be roadworthy, in good operating condition, and shall meet best industry, U.S. Department of Transportation and State of Hawaii Department of Transportation, as the case may be (“DOT”), and PUC safety standards, including road and off-road fuel spill and accident emergency response plans; (3) Seller warrants that it has access to adequate and sufficient substitute fuel tanker trucks, trailers, and associated equipment, such that delivery service will not be interrupted by removal from service of the primary delivery vehicle(s); (4) Seller warrants that its fuel tanker trucks and tank trailers are equipped with quick disconnect Kamlock hose fittings and high flow nozzles for the discharge of Biodiesel at HECO’s Facility; (5) Seller will make every effort to maintain its tankers, tractors, and drivers engaged in the delivery of Biodiesel to HECO in a neat, clean and presentable fashion; (6) Seller shall ensure that all drivers of such vehicles shall be equipped with and properly utilize Nomex fire retardant coveralls, hardhat, safety glasses, and gloves; (7) Seller agrees further that all drivers shall be equipped with a functional cellular phone (Note: Cellular phones shall not be used during loading and discharge operations); and (8) Seller shall ensure that all tanker trucks and tank trailers shall be equipped with the appropriate oil spill containment equipment, including but not limited to, spill sorbents and spill containment booms. (ii) HECO reserves the right to periodically inspect and review the tanker trucks, tank trailers, related equipment, and driver records, inspect and review all operations related to the delivery of Biodiesel to HECO under this Contract, and review quantities loaded and discharged. Said inspection and review does not substitute for or diminish Seller’s own responsibility and liability for compliance with all applicable laws and regulations. (iii) All of Seller’s truck drivers are required to provide their true Social Security number and to pass a criminal background check. If HECO determines, in its sole discretion, that participation in the Contract by, or presence on HECO premises of, an employee or equipment of Seller is inconsistent with the best interests of HECO, Seller shall replace any employee or equipment immediately and replace with an employee or equipment that fully meets the standards under this Contract and at no additional cost to HECO.