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Home My WebLink About298-25 RESOLUTIONPage 1 113 West Mountain Street Fayetteville, AR 72701 (479) 575-8323 Resolution: 298-25 File Number: 2025-2477 A RESOLUTION TO APPROVE THE PURCHASE OF FUEL STATION EQUIPMENT FOR THE POLICE DEPARTMENT HEADQUARTERS IN THE AMOUNT OF $205,088.23 FROM SPATCO ENERGY SOLUTIONS, PURSUANT TO A SOURCEWELL COOPERATIVE PURCHASING CONTRACT BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1: That the City Council of the City of Fayetteville, Arkansas hereby authorizes the purchase of fuel station equipment for the Police Department Headquarters in the amount of $205,088.23 from SPATCO Energy Solutions, pursuant to Sourcewell Cooperative purchasing contract number 081524-TAN. Section 2: That the City Council of the City of Fayetteville, Arkansas hereby approves a budget adjustment, a copy of which is attached to this Resolution. PASSED and APPROVED on December 16, 2025 Approved: _______________________________ Molly Rawn, Mayor Attest: _______________________________ Kara Paxton, City Clerk Treasurer Mailing address: 113 W. Mountain Street Fayetteville, AR 72701 www.fayetteville-ar.gov CITY COUNCIL MEMO 2025-2477 MEETING OF DECEMBER 16, 2025 TO:Mayor Rawn and City Council THRU:Steven Dotson, Chief Financial Officer FROM:Waylon Abernathy, Bond Projects & Construction Director SUBJECT: Approval of Fuel Equipment purchase from SPATCO Energy Solutions and budget adjustment RECOMMENDATION: Approve the purchase of fuel station equipment and installation by SPATCO Energy Solutions in the amount of $205,088.23 for the PD Headquarters, pursuant to Sourcewell Contract #081524-TAN, and approval of a budget adjustment. BACKGROUND: In November of this year, council passed resolution 247-25 for an Engineering services contract for a Fuel Station located at the PD Headquarters. DISCUSSION: This SPATCO quote is under a Sourcewell cooperative purchasing contract, the equipment pricing has previously been competitively bid through Sourcewell procurement. This contract will include the equipment and installation of a 12,000 gallon double wall fuel tank, fuel pump, all associated plumbing, electrical and alarms. BUDGET/STAFF IMPACT: Funding will be provided from police impact fees. A budget adjustment is attached to allocate Impact fees. Account 2300.200.9300-5804.00 Project 07001.2501 ATTACHMENTS: 3. Staff Review Form, 4. Budget Adjustment, 5. PD Fuel Station Equipment Page 1 City of Fayetteville, Arkansas Legislation Text 113 West Mountain Street Fayetteville, AR 72701 (479) 575-8323 File #: 2025-2477 A RESOLUTION TO APPROVE THE PURCHASE OF FUEL STATION EQUIPMENT FOR THE POLICE DEPARTMENT HEADQUARTERS IN THE AMOUNT OF $205,088.23 FROM SPATCO ENERGY SOLUTIONS, PURSUANT TO A SOURCEWELL COOPERATIVE PURCHASING CONTRACT BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1: That the City Council of the City of Fayetteville, Arkansas hereby authorizes the purchase of fuel station equipment for the Police Department Headquarters in the amount of $205,088.23 from SPATCO Energy Solutions, pursuant to Sourcewell Cooperative purchasing contract number 081524- TAN. Section 2: That the City Council of the City of Fayetteville, Arkansas hereby approves a budget adjustment, a copy of which is attached to this Resolution. ! 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")(!"(#()( %(/!")/(( "'0")#- 1 2&3 4 54 &6273 / 0 122 8"'2(()( 2 &9%3 3 : 1 73 ; 2&3 $ 1& 4 2<24% $&23 -,5& & +,= +,= /)42/) //""# >) " %0/ $"-2 & //"#; 1&?%$@1% :&$18 &2$%& ? .--=.AB===-== A +,= 1)"8/A" .--=.A,B- +,= A C ? 8"((')) AA AA AA AA AA AA AA AA AA AA AA AA AA AA AA AA (F-ISPATC0 E N E R G Y S O L U T I O N S Ship -to Address CITY OF FAYETTEVILLE PARKING DIVISION 1800 N STEPHEN CARR MEMORIAL BLVD FAYETTEVILLE AR 72704 Bill -to Address CITY OF FAYETTEVILLE ATTN: ROSS JACKSON 479-879-6221 RJACKSON@FAYETTEVILLE-AR.GOV 113 W MOUNTAIN FAYETTEVILLE AR 72701 Quotation Number Date 20103484 Nov 17, 2025 Reference Number REV 7 11/17/25 Customer Number 1053389 Valid from Valid to Sales Person Sales Office Nov 17, 2025 Dec 18, 2025 257, James, Cliff 0058, Fort Smith Currency USD Conditions: Terms of Payment: Net 30, Net 10 Equipment Terms of Delivery: FOB SHIPPING POINT Contact: Cliff James - Petroleum Sales Representative Mobile: (479) 226-2050 Office: (479) 648-1601 cliff.james@spatco.com - www.spatco.com Item Item Detail 10 Material: INSTALLATION PRICE Installation - Contract Price PRICED WITH SOURCEWELL CONTRACT: BLUE1 ENERGY/SPATCO #081524-TAN SPATCO ENERGY SOLUTIONS Scope of Work: -PROVICE AND INSTALL A 12,000-GALLON SINGLE PRODUCT, DW UST. -PROVIDE AND INSTALL FIBERGLASS TANK SUMP AND UDC. -PROVIDE AND INSTALL DISPENSER ISLAND. -BACKFILL TANK HOLE. -PROVIDE AND INSTALL OPW FLEXWORKS PIPINGWITH CHASE APPROXIMATELY 35'. -PROVIDE AND INSTALL A 3/4HP RED JACKET STP. -PROVIDE AND INSTALL A VEEDER ROOT TLS4 WITH ALL NECESSARY SENSORS AN, FLOATS AND PROBES. -PROVIDE AND INSTALL A WAYNE SELECT SINGLE PRODUCT, TWIN, WITH PULSE OUTPUT DISPENSER FOR GAS. THANK YOU FOR THE OPPORTUNITY TO QUOTE —a Free (800) 4-SPA?C0 (800) 477-2826 Fax 704-599-7700 www.spatco.COm Page 2 of 10 Document 20103484 Date 11 /17/25 -PROVIDE AND INSTALL A FUELMASTER FMU WITH FMLIVE. -PROVIDE ELECTRICAL FROM THE PANEL PROVIDED BY OTHERS AT THE PAD TO THE EQUIPMENT AND TERMINATE. -PURGE, CALIBRATE AND TEST SYSTEM. NOTES: -TANK AND LINE EXCAVATION, DISPOSAL OF SPOILS AND BACKFILL WILL BE PROVIDED BY OTHERS. -CUSTOMER TO PROVIDE ELECTRICAL TO PAD. SPATCO TO TAKE FROM PANEL PROVIDED AT THE PAD TO TERMINATION AT THE EQUIPMENT. -CUSTOMER TO PROVIDE ALL CONCRETE. -OTHERS TO PROVIDE, AND EXCAVATE CANOPY, CANOPY LIGHTS AND ALL NECESSARY ELEMENTS FOR FOOTERS. -ANYTHING OUTSIDE OF THIS SCOPE OF WORK WILL REQUIRE A CHANGE ORDER. "Quote is valid for 15 days. This quote is based on current tariff rates and vendor pricing in effect at the time of issuance. In the event of any vendor has a price increase after the date of this quote and prior to delivery, SPATCO reserves the right to adjust the final invoice to reflect the additional costs. Any such surcharge will be itemized and communicated in advance. Quantity uOM Price Extended price 1 ( EA 104,375.89 104,375.89 20 Material: INSTALLATION PARTS Installation - Contract Parts Quantity u0M Price Extended price 1 I EA 116,558.60 I 16,558.60 30 Material: SELECT-1003626 Wayne Select 3/G7242D Twin, One Product 3/G7242D/29GHJ KUY1 /K Twin, One -Product, Remote Dispenser, Island -Oriented, Enhanced Capacity E40/1320 Compatibility Internal Filter Pulse Output Interface Board Explosion -Proof Junction Box Hose Hanger iMeter2 (qty=halves) Select Gen2 Phase 2 Electromechanical Totalizer per Hose Proportional Solenoid Valve Painted Silver w/ Standard Blue Doors Ad Panels: Gasoline SELECT NOTES: Wayne Dispenser Current Lead Time - 4-6 Weeks ARO Please confirm ad panel and door color when ordering Page 3 of 10 Document 20103484 Date 11 /17125 EAx 110,099.75 40 Material: PK-EZR0400 Hose Kit 11 BP 3/4" Unleaded Black Quantity UOM Price E 2 1 EA 1482.31 i 50 Material: TLS4 Veeder Root TLS4 System 1 - 0860190-120 - TLS4 Console, Color Touch Screen Display, CDIM, UL 1 - 0333434-001 - TLS4 Application Software, 12 Universal Inputs - must order one per console 1 - 0330020-832 - External Printer for TLS4 Series Consoles (Epson Model: TM-T88V) 1 - 0330020-839 - Wall Mounting Bracket for External Printer for TLS4 Series Consoles 1 - 0846397-107 - SS Probe, 0.1 Mag Plus, HGP, Water Detection, UL 1 - 0886100-000 - Install. Kit, Mag Plus, Phase-TwoTM Water Detector, 4" Float, 5' Cable 1 - 0312020-952 - 4" NPT Riser Cap and Ring Kit for In -Tank Probes 2 - 0794380-208 - Sump Sensor - 12' Cable 1 - 0794380-430 - Interstitial Sensor for Steel Tanks (4'-12' Tank I.D.) with 15' Cable 1 - 0312020-928 - 2" Interstitial Sensor Riser Cap and Adaptor Kit 10,099.75 Quantity UOM Price Extended price 1 1 EA 114,803.20 ( 14,803.20 60 Material: TUG1014322 Under Ground Tank 12k Gal DW ACT100 12000 Gal. 96.0 IN. Horizontal Double Wall ACT100-U UST Primary Tank - Diameter 96.00" X Length 394.80" Secondary Tank - Diameter 96.40" X Length 395.20" Includes: (6) 5" Tank Flange (6) Bushing 5 x 4 Nylon (1) Internal Monitor Well (1) 8in x 8in Striker plate (5) Polyester Hold -Down Straps Tank Exterior is Sandblasted and Coated with minimum 70 mils 100% Solids Polyurethane 30-year warranty Quantity UOM Price Extended price 1 1 EA 132,298.36 1 32,298.36 80 Material: FLF50224 FUEL MASTER EQUIPMENT 1 - FMU5725-F4 - FMLIVE, CELL, PROKEE/PROX, AIM, PWR COND, 50A, 4 HOSE 1 - 191 F0223 - Tank Monitor Interface Options Wireless Kit (RS-232) Quantity UOM Price Extended price 1 I EA.., ._... _..... _ m...__�._ . �..a[12 672 90 12,672.90 FLF50224 FUEL MASTER ANNUAL SERVICES 1 FMLIVEBA/1+BI - Subscription Price for FMLive Services 1 - FMLIVE-CELL-FMU - Cellular Enabled Equipment Quantity UOM Price Extended price 1 ) EA 11,897.00 1,897.00 100 Material: FLF50224 FUEL MASTER ONE-TIME SERVICES CLOUDBA/1 - FMLive Setup & Activation PMLIVEBA/1+BI+CELL - FMLive Project Management FMLIVE-DB-CONSTRUCT - FMLive Database Construction and/or Conversion d % e r N Page 4 of 10 Document 20103484 Date 11 /17/25 Quantity UOM Price Extended price 1 I EA ,.. ( 366.01 I 366.01 Items Subtotal 194,036.33 Estimated Tax 8,741.90 Estimated Freight 2,310.00 Quotation Amount 205,088.23 r N % a Page 6 of 10 Document 20103484 SPATCO Energy Solutions, LLC TERMS AND CONDITIONS 1. Agreement. The agreement between Seller and Buyer (this "Agreement") consists of the applicable quotation signed by both parties ("Quotation"), the applicable statement of work signed by both parties ("Scope"), these terms and conditions, and the terms and conditions set forth on invoices delivered by Seller to Buyer. This Agreement shall become effective on the date Buyer executes and delivers it to Seller ("Effective Date"), subject to approval of sellers credit manager. 2. Work. Seller will perform the Work on the terms and conditions of this Agreement. Seller (a) will install the Equipment at the Job Site in accordance with the current version of the American Petroleum Institute's Recommended Practice 1615-1987 (the "API Standards") and the Petroleum Equipment Institute's Recommended Practices for Installation of Underground Liquid Storage Systems (the "PEI Standards") and (b) will install all safety equipment included in the Equipment in accordance with the NFPA 30-1993 Flammable and Combustible Liquids Code or NFPA 30-A1993 Automotive and Marine Service Code, as applicable, (collectively, the "NFPA Standards"). 3. Safety Standards. Federal, state and local laws and regulations may impose more stringent standards than the API Standards, the PEI Standards or the NFPA Standards, and Buyer's insurance carriers may require additional or different equipment. Buyer will ensure that the Work and the Equipment comply with all federal, state and local laws and regulations and with the standards set by Buyer's insurance carriers. Any changes to the Work or the Equipment to comply with any of those laws, regulations or other standards shall be made in accordance with Section 6, Change Orders, below. Buyer will follow all instructions and directions, and use all safety devices, provided by the manufacturers of the Equipment. 4. Price and Payments. a. Invoices. Seller will invoice Buyer for the cost of each piece of Equipment and all related taxes, insurance and freight charges ("Equipment Invoices") on the earlier of (i) the delivery of that Equipment to the Job Site, or (ii) the delivery of that Equipment to Seller's warehouse for storage. Buyer will pay each Equipment Invoice within 10 days after the invoice date. Seller will invoice Buyer for all services ("Service Invoices") on a monthly basis, and Buyer will pay each Service Invoice within 30 days after the invoice date. Seller will give Buyer a credit against the initial amounts due under the Equipment Invoices and the Service Invoices in the amount of the Initial Payment (defined in the Quotation). Buyer shall not withhold payment based on any typographical or similar error in any invoice. All amounts Buyer does not pay as and when due shall accrue interest at the rate of 18% per annum until paid. Buyer shall pay all of Seller's costs of collection, including reasonable attorneys' fees. No partial payment by Buyer shall constitute an accord and satisfaction or otherwise satisfy the entire outstanding balance of any invoice of Seller, notwithstanding any notation or statement accompanying that payment. Payment Terms for Wayne Equipment are Net 10 Days. (Initial) b. Taxes. The Price (defined in the Quotation) does not include any sales, use, revenue, excise or other taxes or governmental charges (collectively, "faxes"). If Seller is required to collect any Taxes, Seller will add them to the Price and invoice Buyer (in the original invoice or separately), and Buyer will pay them. c. Permits. The Price does not include any fees for any building or other government permits, licenses, tests or inspections necessary to perform the Work (collectively, "Permits"). Buyer will obtain and pay for all Permits, confirm to Seller in writing that it has done so, and deliver to Seller copies of all Permits, all before Seller begins the Work. If Seller pays any fees for any Permits, Seller will add them to the Price and invoice Buyer (in the original invoice or separately), and Buyer will pay them. d. Weekends and Holidays. The Price does not include the extra costs of Sellers performing any of the Work on Saturdays, Sundays or holidays. If Buyer and Seller agree that Seller shall perform some of the Work on Saturdays, Sundays or holidays, Buyer will pay Seller, in addition to the Price, an extra charge equal to the number of hours of Work performed multiplied by twice Seller's standard labor rate. e. Performance Bond, The Price does not contain any allowance for a performance bond. If Buyer requests, and Seller agrees to provide, a performance bond for some or all of the Work, as a condition to Sellers providing the bond, Buyer will pay directly all premiums and other costs of the bond. f. Not Included. Unless otherwise stated in the Scope of Work (Attachment A), no electrical work, concrete or asphalt work, tank tests or line tests are included in the Price or the Work. g. Security Interest. Buyer hereby grants and Seller retains a purchase money security interest in the Equipment, including the proceeds therefrom, for the purpose of securing Buyers obligation to make payment in full, until payment is received in full in cash or collected funds, at which time the security interest shall cease. Seller may, at its option, repossess the Equipment upon Buyers default, and charge Buyer with any deficiency. Buyer hereby authorizes Seller to file appropriate financing statements for perfecting this security interest. If the work is to be performed on property not owned by Buyer, upon Seller's request, Buyer shall provide a Landlord's Waiver in a form acceptable to Seller. Seller reserves the right to ship under reservation for payment against documents of title. Title and a first and prior security interest to the Equipment shall remain with the Seller until all payments are made and all conditions herein contained are and have been fully completed. The Equipment shall at all times be deemed personal property, even after attachment or connection to realty. The Buyer shall keep the Equipment in good working condition and physical appearance free of liens, and until the purchase price is fully paid shall maintain such insurance as described below under Insurance. M.R. (Customer Initials) (Sales Rep. 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LºoT²º[¨È¨²ºT²¨È(ºÅ[È¨}IÈ|¿[È<[[È[XI²_ÈÁ²²[È²T[ÈdÈIÅÈÁIK¹ÈTI È EEEEFFÈ *º¨²[È2²MÈ FFFFFGÈ <I[¨È;[È2²N®È Page 8 of 10 Document 20103484 shall allow Seller access to the Equipment and the Work to inspect, repair or replace the Equipment and the Work. Seller will not accept, pay or reimburse any invoices or charges for any warranty work performed by others. Notwithstanding anything to the contrary in this Agreement, Seller shall not be responsible for any damages resulting from the negligence of the Buyer or the failure of the Buyer to monitor the operation of all Equipment on a daily basis in accordance with standards established by the underground storage tanks regulations set forth in 40 C.F.R. Part 280 or any other applicable law, including Environmental Laws (defined below), affecting the operation of the Equipment, and Buyer shall be fully responsible for all of those damages. e. Buyer Indemnity. Buyer agrees to hold Seller harmless from and defend and indemnify it against any of Seller's or Buyer's losses in connection with any property damage, personal injury or death, whether same relates to any claim, penalty, or fine by government agency for pollution, environmental damage, clean up, or otherwise, or whether any claim is made by any third party against Seller or Buyer or said damage, personal injury or death is claimed or sustained by Buyer or made against Buyer or Seller in connection therewith, including but not limited to damages, costs, expenses; and attorney's fees, except to the extent that said damage, personal injury or death is proven to have been caused by Seller's sole negligence. Whei a penalty, fine or claim for pollution damage or cleanu is made against Seller in connection with installation of materials or equipment, f. Drawings. When specifically included in the Work, site drawings, installation plans, and as -built drawings will be prepared using a current Buyer -provided scale drawings showing property lines, rights of way, easements, utilities, driveways, buildings and improvements. Any drawings furnished in connection with the bid proposal or Work was for bid purposes only and is the property of Seller. If such drawings are used without a professional or registered engineer's stamp, Buyer uses it at its own risk with full and complete indemnity to Seller for any acts, errors, omissions or damages that may arise out of using such drawings. g. Independent Contractor. Seller, in furnishing services hereunder, is acting only as an independent contractor. Seller does not undertake by this Agreement or otherwise to perform any obligations of Buyer, whether regulatory or contractual, or to assume any responsibility for Buyer's business or operations. h. Substitution. Any identification of Equipment by brand name, manufacturer, catalog number, or other designation in Buyers purchase order, Seller's documents or elsewhere only establishes a general quality standard and does not require Seller to supply a particular item. Seller shall have the right to select other Equipment that in Seller's opinion meets that general quality standard. 8. Risk of Loss. The shipping terns are F.O.B Shipper's Dock. Whenever merchandise is delivered to the designated F.O.B. point, a common carrier (by manufacturer or Seller), or is received by Buyer, whichever is earlier, Seller's responsibility ceases and full risk of loss (including transportation delays and losses) and title passes to Buyer, and Buyer shall be liable to Seller for the full price of the merchandise. Delivery to Seller's plant for purposes of convenience, coordination or price protection shall be considered "delivery" for invoice purposes. If any damage is evident upon delivery, Buyer must make a notation on the freight bill of lading and have the carrier's agent sign upon delivery for claim record. Buyer must immediately notify Seller and file a claim with the carrier, as Seller assumes no responsibility for goods damaged in shipment. Shortages and hidden damages or defects to goods must be reported to Seller and carrier within 30 days of receipt of shipment. The quoted prices do not include the cost of unloading, which is Buyer's responsibility. 9. Disclaimers and Limitations. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7 ABOVE, SELLER DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND AS TO THE EQUIPMENT AND WORK, EXPRESS AND IMPLIED, INCLUDING ALL REPRESENTATIONS AND WARRANTIES: (A) AS TO THE DESIGN, QUALITY OR CONDITION OF THE EQUIPMENT; (B) AS TO MERCHANTABILITY OR THE FITNESS OF THE EQUIPMENT OR WORK FOR ANY PARTICULAR PURPOSE; (C) AS TO THE SUITABILITY OF THE EQUIPMENT OR THE WORK FOR BUYER'S PURPOSES OR THE IMPACT OF THE EQUIPMENT OR THE WORK ON BUYER'S OPERATIONS. Buyer must give Seller written notice of any claim that it has regarding the condition, quantity or quality of the Equipment within 30 days after the delivery of the Equipment (or with respect to the nonconformity of the Equipment with the manufacturer's warranty, within the period specified in the manufacturer's warranty). Buyer must give Seller written notice of any nonconformity of the Work with the Services Warranty within the applicable Service Warranty Period. The notice must specify the basis of Buyer's claim in detail and identify the Equipment or the Work at issue. Seller shall have a reasonable opportunity to inspect the Equipment or the Work at issue and a reasonable time to cure any nonconformity. Buyer's failure to comply with this Section shall constitute Buyer's acceptance of the Equipment and the Work and shall bind it to pay Seller the full Price of the Work. SELLER SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST REVENUES AND PROFITS, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. In no event shall Seller be liable for any amount arising out of or relating to this Agreement, the Equipment or the Work, whether in contract, tort, strict liability or otherwise, in excess of the purchase price of the Equipment or Work at issue. Any action or proceeding by Buyer arising out of or relating to this Agreement, the Equipment or the Work will be forever barred unless it is commenced within the earlier of: (a) one year after the claim or cause of action has accrued; or (b) the period prescribed by applicable statute of limitation or repose. No delay in any of the Work shall entitle Buyer to any reduction of the Price. 10. Cancellation and Return of Goods. Buyer may cancel an order only upon advance written approval of Seller and the manufacturer; provided Buyer pre -pays the freight charges and Seller's reasonable cancellation and restocking charges, and Seller's handling fee equal to 10% of the Price for the Equipment or services that are the subject of the cancellation. No merchandise is returnable without Seller's advance written consent. Merchandise must be returned within ten (10) days of Buyers receipt of written authorization and must be accompanied by the invoice number and/or a copy of the sales receipt. At the option of Seller, return of material prior to receiving Sellers approval will result in material remaining the property of Buyer, and it will be stored at Buyers risk and expense. If Seller accepts the material in return for credit, a handling charge based in part on acceptance of the material for return by the manufacturer will be charged, and no credit will be issued to Buyer until credit from the manufacturer is received. Special custom orders (including dispensers) shall be non -cancelable and non-refundable. M.R. (Customer Initials) .(Sales Rep. Initials) Page 9 of 10 Document 20103484 11.Insurance. a. Seller_ Seller shall purchase and maintain during the performance of the Work (i) commercial general liability insurance, including coverage for bodily injury and property damage, that shall cover Seller and its subcontractors in their performance of the Work, and (ii) workers' compensation insurance as required by applicable law. At Buyers request, Seller shall provide a current certificate of insurance showing Seller has in force the foregoing insurance. b. Buyer. Buyer shall purchase and maintain commercial general liability insurance, including coverage for bodily injury and property damage to the Equipment, and for meeting any financial responsibility requirements under federal and state underground storage tank regulations. Buyer shall also purchase and maintain until Buyer pays the Final Invoice builder's risk insurance, including extended coverage for fire, theft and vandalism. At Seller's request, Buyer shall provide a current certificate of insurance showing Buyer has in force the foregoing insurance and showing Seller as a loss payee to the extent of its interest. 12. Force Majeure. Seller shall not be liable for delays or failing to perform any of its obligations under this Agreement resulting directly or indirectly, in whole or part, from events or causes beyond its reasonable control, acts of God, accidents, riots, wars, national emergencies, terrorism, strikes, labor disputes, unusual weather, natural disasters, hurricanes, storms, persistent or heavy rain, cyclones, earthquakes, floods, lightning, embargoes, failure by suppliers to deliver or by other contractors to perform, delays in obtaining or the inability to obtain supplies, equipment or labor through normal sources at normal prices, delays of carriers or postal authorities, or governmental restrictions, prohibitions or diversions. The occurrence of any of the foregoing shall operate to extend Sellers time of performance under this Agreement for a period not less than the period of the delay caused by any of the foregoing, plus a reasonable amount of time for remobilization. 13. Seller's Rights Following Default. a. Seller may, without prejudice to any other right or remedy, terminate this Agreement if: (i) Buyer is adjudged bankrupt or a receiver or trustee is appointed for Buyer, or Buyer is insolvent or makes a general assignment for the benefit of creditors; (ii) Buyer fails to pay any amount when due; or (iii) Buyer materially breaches any of the provisions of this Agreement and does not remedy such breach within ten (10) days following written notice thereof from Seller. In any of those events, Seller also may, at its option, take one or more of the following actions: (i) declare all or part of Buyer's obligations to Seller immediately due and payable, (ii) suspend its performance under this Agreement, (iii) foreclose its security interest in the Equipment and/or repossess the Equipment, (iv) treat such event as a cancellation by Buyer, in which event Buyer shall be obligated to perform the obligations set forth in Section 10 above, or (v) pursue its other rights and remedies under this Agreement or applicable law. b. Upon termination of this Agreement by Seller, Seller shall have the right to remove equipment, tools and machinery owned by it from the Job Site, and shall be paid for all work done under the Quotation, for all materials and supplies obtained by Seller pursuant to the Quotation and for all costs and expenses incurred by Seller to date of termination. Buyer also shall pay all costs of collection, including reasonable attorneys' fees and costs. 14. Environmental. a. Representations and Warranties. Buyer hereby represents and warrants to Seller that currently and at all times until Buyer pays the Price in full: (i) no Hazardous Substances are or will be present in, on or under the Job Site, including the air, surface water, land surface and groundwater, (ii) the Job Site and Buyers operations on the Job Site are and will be in full compliance with all Environmental Laws; (iii) Buyer has the authority to authorize the installation of the Equipment and the performance of the Work as provided in this Agreement and has obtained all necessary consents from the owners of the Job Site for the same; (iv) Buyer has obtained all necessary permits and licenses to install the Equipment and to perform the Work; (v) Buyer and the Job Site are and will remain in full compliance with the underground storage tank regulations in 40 C.F.R. Part 280, including the financial responsibility regulations in Subpart H of the same; and (vi) the installation of the Equipment and the performance of the Work comply with all federal, state and local laws and regulations and with the standards set by the Buyer's insurance carriers, including all requirements restricting the location of, or imposing special requirements regarding, underground storage tank systems at or around wells, surface water and other sensitive receptors. b. Regulations. Buyer is solely responsible for compliance with all of the underground storage tank regulations set forth in 40 C.F.R. Part 280, including as they relate to the installation of the Equipment and the performance of the Work. c. Inspection and Reporting Responsibilities. Seller is not responsible for inspecting the Job Site or reporting to third parties, including governmental agencies, any Hazardous Substances or any violations of Environmental Laws relating to the Job Site or the Work Buyer has the responsibility for inspecting the Job Site and reporting to third parties. �� Qi1r Ge �( ► a►.5 RtoJ6� Canes % 5e �Q�C S nth d. Indemni uyer s a ndemnify, defend and hold harmless Seller d its affiliates and their respective erectors, officer , anagers, employees and agents from and against any and all claims, actions, proceedings, liabilities, fines, losses, damages, costs, judgments, attorneys' and consultants' fees and expenses arising out of or relating to (i) the presence, suspected presence, release or threatened release, before or after the Effective Date, of any Hazardous Substances in, on or under the Job Site and any migration of those Hazardous Substances before or after the Effective Date, (ii) any activities, use or operations on the Job Site by Buyer or any other Person or their respective predecessors, successors, assigns, affiliates, directors, officers, managers, employees, invitees, contractors, vendors and agents, (iii) any violation of or failure to comply with Environmental Laws at or relating to the Job Site, (iv) allegations that Seller is a handler, generator, owner, operator, treater, storer, transporter or disposer of any underground storage tank or Hazardous Substance in, on, under, located on or otherwise associated with the Job Site, (v) the use, ownership, maintenance, transfer, transportation or disposal of the Equipment after completion of the Work or while under Buyers control, or (vi) any breach, misrepresentation, inaccuracy or failure to perform any representation, warranty or covenant made by Buyer in this Agreement. M.R. (Customer Initials) (Sales Rep. Initials) a Page 10 of 10 Document 20103484 e. Definitions. "Hazardous Substances" means any and all substances, materials, wastes, pollutants and contaminants which are now or at any time in the future defined as hazardous or toxic or are prohibited, limited or regulated by any Environmental Law (defined below) or that, if not so defined, prohibited, limited or regulated, could or do pose a hazard to health, safety or the environment, including any asbestos, asbestos -containing materials, urea formaldehyde, polychlorinated biphenyls, radioactive materials, petroleum, petroleum products and petroleum by-products. "Environmental Laws" means any and all present or future federal, state and local laws, statutes, ordinances, rules, regulations, standards, policies and other governmental and/or judicial directives or requirements, as well as common law, relating to the protection of human health or the environment and that are applicable to Buyer, Buyer's business, Seller, the Job Site or any operations now or previously conducted on the Job Site, including the federal Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et seq., and any analogous state and local laws. 15. Hardware/Software. a. In connection with this Quotation, the parties assume that any system hardware and software supplied by Buyer and/or Seller is inherently compatible and requires only routine start-up and programming. If on start-up, it is discovered that the hardware and/or software is not compatible or has innate deficiencies that require additional configuration or upgrading, Seller will be held harmless from any resulting delays in completion of the Work, and shall be entitled to full payment of the Price. b. Seller and its licensors, if any, shall retain title to all software integrated in or accompanying the Equipment. Buyer shall only have the limited, nonexclusive right to use the software in object code form only as specified by Seller or its licensors in order to operate the Equipment. Buyer shall not, and shall not allow any person or entity to, (a) remove, modify, copy, reverse engineer, decompile or disassemble the software, (b) merge the software with other programs, or (c) install any other software on the Equipment. Buyer may transfer this limited right to use the software to a third party only if it does so together with the Equipment and only if the transferee executes and delivers to Seller before the transfer a written agreement to be bound by this Agreement. 16. General. Any notice permitted or required under this Agreement shall be deemed given if in writing and delivered personally, deposited in the United States mail, certified mail, return receipt requested, or sent by facsimile to the respective addresses of Seller and Buyer listed in the Quotation. Buyer may not assign to any person or entity all or a portion of its rights or obligations under this Agreement without Seller's prior written consent, and any attempted assignment without that consent shall be void. Seller reserves the right to subcontract portions of the Work and to correct clerical and typographical errors in any document. This Agreement and any controversy relating to it or the Equipment or the Work shall be governed by the laws of the State of North Carolina, excluding its conflicts of law principles. The United Nations Convention on the International Sale of Goods is expressly excluded and shall not apply. Any action or proceeding relating to this Agreement or its enforcement, or to the Equipment or the Work, shall be commenced and heard only in the state courts for Mecklenburg County, North Carolina or the United States District Court for the Western District of North Carolina. Seller and Buyer hereby consent and submit to the jurisdiction and venue of those courts. This Agreement shall be binding on, and shall inure to the benefit of, the parties and their respective successors, heirs and permitted assigns. No delay in exercising any right under this Agreement shall constitute a waiver of that right. If any provision of this Agreement is held to be illegal, unenforceable or invalid for any reason, the remaining provisions shall not be affected or impaired. The word "including" shall not be deemed to be limiting. If there is any conflict between the provisions of these Terns and Conditions, the Quotation and the Scope, the provisions of these Terms and Conditions shall control. Sections 5.d., 7, 9, 13, 14.d., and 15.b. shall survive the termination of this Agreement for any reason. This Agreement contains the entire agreement of the parties relating to the Equipment or the Work and supersedes all previous and contemporaneous agreements, understandings, usages of trade, and courses of dealing, whether written or oral. This Agreement may be modified only by a written agreement, signed by both parties, expressly modifying this Agreement. .PMMZ3BXO .BZPS