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HomeMy WebLinkAbout201-04 RESOLUTION• •
RESOLUTION NO. 201-04
A RESOLUTION APPROVING A FUEL SERVICES CONTRACT
WITH AVFUEL CORPORATION TO PROVIDE AVIATION FUEL,
REFUELER TRUCKS, AND OTHER SERVICES TO THE
FAYETTEVILLE MUNICIPAL AIRPORT.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEVILLE, ARKANSAS:
Section ]. That the City Council hereby approves a Fuel Services Contract
with AvFuel Corporation to provide aviation fuel, refueler trucks, and other
services to the Fayetteville Municipal Airport. A copy of the Fuel Services
Contract is attached hereto marked Exhibit "A" and made a part hereof.
PASSED and APPROVED this 71h day of December 2004.
ATTEST:
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SONDRA SMITH, City Clerk
APPROVED:
By
DAN COOD , Mayor
•
• FIXED BASE OPERATOR
AVIATION FUEL SUPPLY AGREEMENT
SPECIAL TERMS AND CONDITIONS
NAVFUEL
CORPORATION
AVFUEL CORPORATION
FIXED BASE OPERATOR
AVIATION FUEL SUPPLY AGREEMENT
Reference Date: November 1. 2004 Effective Date: November 1. 2004
SUMMARY
This Agreement is between Avfuel Corporation and its affiliates and subsidiaries all of which have principal offices at 47 West Ellsworth Road. Ann
Arbor. MI 48108 USA. hereinafter referred to, individually or collectively as "Avfuel". and City of Fayetteville
having its principal office at (Street address only) 113 West Mountain Street , hereinafter called "Customer collectively called "the Parties". and is
effective on the Effective Date or. if no Effective Date is specified then on the Reference Date noted above.
THIS IS AN INTEGRATED AGREEMENT CONSISTING OF SEVERAL PARTS, ALL OF WHICH SHALL BE READ TOGETHER
AND INTERPRETED AS ONE AGREEMENT. The parts shall include this Summary. the Special Terms and Conditions. and the General Terms
and Conditions. In the event of any inconsistencies between the Special Terms and Conditions and the General Terms and Conditions. the Special
Terms and Conditions shall govern. Avfuel offers other programs that it believes are of benefit to Customer. Customer chooses to participate in
those programs that arc checked below and agrees that the applicable provisions of the Special and General Terms and Conditions govern those
programs. Additions or deletions to this agreement are governed by the Changes Provision set forth in Section 17 of the General Terms and
Conditions.
Applicable Certificates of Insurance are attached hereto, Insurance Company Name
X Customer Credit Program
X Brand Program
X AVTRIP Program
X Credit and Charge Cards Acceptance Program
X Contract Fuel Dealer Program
Avsurance Primary Commercial Insurance Program
CUSTOMER FEIN:
STATE ID NUMBER:
FOR AVFUEL CORPORATION:
X Equipment Lease Agreement
X Pricing Addendum
X Attachment C
X Promissory Note & Financing Agreement
TYPE OF' BUSINESS:
(i.e. C -corp, S -corp. Partnership. LLC. Sole Prop, or other)
STATE OF INCORPORATION:
FOR:
B: t t ` _ `, By:
Mark Ilaynes
Print Name
Tide: Vice President, Sales
n
U
(Sign
1-3MU
(Print Name)
Lim
Title: y���r��y /L[,
(Prin(1 itie) {
The undersigned hereby guaranlce(s) payment and performance of this Agreement by Customer.
13v:
Signature Name Prints
13y,
Signature Name Printed
ocial Sccurity Number
Social Security Number
• FIXED BASE OPERATOR •
AVIATION FUEL SUPPLY AGREEMENT
SPECIAL TERMS AND CONDITIONS
CUSTOMER NAME: City of Favettevdle
BILLING ADDRESS:
Of different than street address)
DELIVERY ADDRESS:
(i/different than street address)
Cr).
4500 South Sdwol S(rccl
STATF. ZIPCODE
CITY Fayetteville STATE: AR /-IPCODE 72701
AIRPORT ID (IATA CODE):
PRODUCT (s): 'Jet -A x let -A with Anti -ice xAvgas/IOOLL (Other
PAYMENT TERMS: L$130Dim
EQUIPMENT LEASED:
1991 3000 Callon NO
2000 75QG III t Isuzu
Description SN or VIN Lease Rate
nous S 1050,00
(116822 S 750.00
CONTRACT FUEL DEALER:
Rate
Airport Flowage Fee: YES X NO Sig (i.e. $0.03)
Storage Fee: YES X NO c/g
Into wing Fee: Established Prices On File
Fuel Type Gallons from/to
Rate
OTHER SPECIAL TERMS AND CONDITIONS:_If the City of Fayetteville should cease operation or sale the FRO. then the City must give Av fuel 60
days written notice of termination of the contract.
• •
ADDENDUM
to the
AVIATION FUEL SUPPLY AGREEMENT
beta cen
AVFUEL CORPORATION
And
CITY OF FAYETTEVILLE, AR
The following is incorporated and made part of the above named agreement with a reference date
of November 1, 2004
Product: Jet -A Fuel with Additive
Delivered Price: Previous weeks average of Group 3 Jet Mean as reported by Platt's Oilgram,
plus a differential of $0.1360 per gallon. The Platt's average price will be calculated each
Monday (or Tuesday when Monday is a holiday) for the previous week (Monday -Friday -
published trading days only) and will be effective for the following Tuesday through Monday
period. Price excludes all taxes, tees, into -plane charges and other fees.
In the event that there is a change in Avfuel's costs for the above products, Avfuel reserves the
right to amend the price differential stated above. In such case, Avfuel will notify City of
Fayetteville in writing of the change in its cost and the new differentials will take effect as of the
date in the notification. Change in Avfuel's costs may be due to, but not limited to, changes in
freight rates or changes in Avfuel's current cost differential from refineries or changes in the
terminal used to supply Customer. If any surcharges are imposed upon Avfuel, Avfuel reserves
the right to assess surcharges to customer.
Section 15 Governing Law:
This agreement shall be construed as having been made in the State of Arkansas, and all right
and obligations under it shall be governed by the laws of the State of Arkansas without regard to
its Conflict of Laws provisions. All litigation arising hereunder shall be brought in the State of
Arkansas, and exclusive jurisdiction shall lie with the courts located in Washington County,
Arkansas and each Part hereby submits to the exclusive jurisdiction of those courts.
REFUELER REQUIREMENTS
Avfuel will provide the city with the refuelcr trucks currently being leased by the city for a period
of Eighteen (18) months at NO CHARGE effective with the implementation of a new 5 -year
contract. Commencing on the 7111 month of the 2nd year of the contract the lease rates for these
Contracts/remplatcs/FS I Addendum (Performance -2) 4-00
• •
refuelers will be based on the city's selection of either Proposal #1 or Proposal #2 of this RFP.
The city will have the option to lease trucks on a short-term basis for special events or
circumstances. Avfuel will provide the city with the option to lease -to -purchase rcfueler(s) if
that becomes necessary.
Leased truck maintenance: The city shall be responsible for securing a local maintenance
provider for the Avfuel leased refuelers. The city shall notify Avfuel prior to conducting
maintenance on the leased refuelers. The leased truck agreement excludes: gasoline, oil, tires
and batteries.
Proposal #2 - Avfuel will be responsible for the maintenance of the leased refuelers through the
city's selection of a maintenance provider to exclude gasoline, oil, tires and batteries.
Avfuel will not maintain the city's fuel farm.
Avfuel will be available, upon request, to inspect the city's leased trucks and fuel farm. See
attachment C for maintenance coverage.
Avfuel Corporation City of Fayetteville, AR
Its: Mark Haynes V.P. Its:
Date: 11/19/04 Date:
Contracts/II emplates/FS 1 Addendum (Pcrlbnnance-2) 4-00
• •
FINANCING AGREEMENT
THIS FINANCING AGREEMENT, datcd November 1, 2004 is between City of Fayetteville 4500 South
School Street, Fayetteville, AR 72701 (`Borrower") and AVFUEL CORPORATION, 47 West Ellsworth Road, Ann
Arbor, Michigan 48107 ("Avfuel") and confirms the terms and conditions upon which Avfucl has agreed to loan
Borrower S12,000.00 (the "Loan") to fund capital and/or operating expenses for Borrower's business.
Loan
Avfucl agrees to loan City of Fayetteville the sum of S12,000 upon the terms and conditions set forth
herein. Borrower's obligation to repay the loan will be evidenced by a Promissory Note in the form attached hereto
as Exhibit A (the "Note").
Repayment.
Unless earlier prepaid pursuant to Section 3, the Loan will be repaid by means of rebates, at the rate of S241.88
per month (the "Rebate") for each month in which all of Borrowers aviation fuel, as described in Section 2, is purchased
and paid for by Borrower undcr the AVIATION FUEL SUPPLY AGREEMENT dated as of November 1, 2004 between
Borrower and Avfucl (thc "AFSA"). The Rebate will begin with the month of November 2004 and continuing thereafter
until the last day of the calendar month immediately preceding the calendar month in which thc Loan is repaid in full.
The Rebate for aviation fuel for which Borrower makes payment in each calendar month will be credited to Borrower as
of the 15i° day of the next calendar month and will be applied against a monthly installment due under the Note as of such
date.
3. Mandatory Prepayment/Repayment.
Borrower acknowledges that Avfuel has agreed to fund the Loan in reliance upon Borrower's representation that
it will continue to control and operate the FBO through October 31, 2009 and that, for the period beginning November 1,
2004 and ending on October 31, 2009, all aviation fuel which is stored and distributed at thc FBO will be supplied by
Avfuel, including both aviation fuel which is purchased and used or resold by Borrower and aviation fuel which is
purchased and uscd by third parties which utilize tank capacity at the FBO. As a consequence, Borrower agrees that if, at
any timc prior to [Date of last payment], for any reason, whether voluntarily or involuntarily on thc pan of Borrower,
Borrower either ceases to control and operate the FBO or Borrower causes or permits aviation fuel supplied by any party
other than Avfuel to be stored or distributed at the FBO, or this Agreement is terminated pursuant to section 3, then
Borrower, within ten (10) days after delivery of written demand by Avfuel, shall be required to prcpay in full the entire
unpaid balance of principal and interest under the Loan. Borrower acknowledges that the prepayment and repayment
provisions in this Section 3 arc in addition to, and not in substitution of, any claims that Avfuel might otherwise assert
under contract law if the cessation is the result of a brcach by Bon -ower of its obligations under the AFSA or any other
Document.
CONDITIONS OF FUNDING
The obligation of Avfuel to fund the Loan shall be subject to satisfaction of the following conditions, unless
waived in writing by Avfuel:
a) All legal matters and Documents incident to the transactions contemplated hcrcby shall be
satisfactory, in form and substance, to Avfuel's counsel;
b) Avfuel shall have received (i) a certificate signed by Borrower certifying that all requisite
action has been taken in connection with thc transactions contemplated hereby, and (ii) such other
documents as Avfuel may reasonably require to be executed by, or delivered on behalf of, Borrower; and
c) Avfuel shall have received the Documents signed by an authorized officer of Borrower.
Form FA 05/02
Page 1 of 5
• •
3. TERMINATION.
Avfuel may terminate this Agreement forthwith upon the occurrence of any of the following events:
a) If any representation or warranty made by Borrower in any oral written statement. certificate,
report, or financial statement at any time furnished by Borrower in connection herewith, is or becomes incorrect or
misleading in any material respect; or
b) If Borrower discontinues its business; is adjudicated a bankrupt or insolvent under any law of any
jurisdiction; ceases, is unable. or admits in writing its inability, to pay its debts generally as they mature; makes a
general assignment for the benefit of creditors; applies for, or consents to, the appointment of any receiver, trustee.
or similar officer for it or for any substantial part of its propeny, or any such receiver. trustee, or similar officer is
appointed without the application or consent of Borrower and such appointment continues thereafter un -discharged
for a period of thirty (30) days; institutes, or consents to the institution of any bankruptcy, insolvency, reorganization,
arrangement, readjustment or debt, dissolution, liquidation, or similar proceeding relating to it under the laws of any
jurisdiction or any such proceeding is instituted against Borrower and remains thereafter un -dismissed for a period of
thirty (30) days; or any judgment, writ, warrant of attachment or execution, or similar process is issued or levied
against a substantial part of the property of Borrower and such judgment, writ. or similar process is not effectively
stayed within thirty (30) days after its issue or levy; or
c) If, in Avfucl's sole discretion, for any reason or for no reason at all, it appears to Avfuel that
Borrower may not be able to meet its repayment obligations undcr the loan, or
d) If Borrower fails to pay any amount owing by Borrower to Avfuel or any of it's affiliates under any
AFSA Document or any other document within fifteen (15) days after its due date, whether at maturity, by acceleration,
or otherwise or is otherwise in default under any AFSA Document or any other document.
MISCELLANEOUS.
a) No waiver of any provision of this Agreement or any Document, or consent to departure therefrom.
is effective unless in writing and signed by Avfuel. No such consent or waiver extends beyond the particular case
and purpose involved. No amendment to this Agreement is effective unless in writing and signed by Borrower and
Avfuel.
b) Borrower shall indemnify and hold Avfuel harmless against any and all liabilities, losses, damages,
costs, and expenses of any kind (including, without limitation, the reasonable fees and disbursements of counsel)
suffered or incurred in connection with any investigative, administrative or judicial proceeding relating to Borrower
(provided, however. that Avfuel shall have no right to be indemnified hereunder for its own bad faith or willful
misconduct as determined by a court of competent jurisdiction).
c) This Agreement and each of the Documents will be governed by and construed in accordance with
the laws of the State of Michigan, without regard to principles of conflict of laws. Any dispute arising hereunder
shall be subject to the jurisdiction of the Washtenaw County Michigan Circuit Court and/or the Federal District
Court for the Eastern District of Michigan, Southern Division. The several captions to different Sections of this
Agreement are inserted for convenience only and shall be ignored in interpreting the provisions hereof.
d) Any notice permitted or required undcr this Agreement shall be in writing and shall be deemed
"delivered" as follows: (i) if by hand delivery, on the date of actual delivery; (ii) if by facsimile transmission, on the
next business day following the date of transmission; (iii) if by mail, on the third business day following the date that
the notice is deposited with the United States Postal Services, postage prepaid, the address of the party to whom
notice is being given.
e) All agreements, representations, and warranties made in this Agreement will survive the signing of
this Agreement and the funding of the Loan, and will bind and inure to the benefit of Borrower and Avfuel and their
respective successors and assigns.
f) If any provision of this Agreement or any other Document, or any action taken hereunder or
thereunder. or any application thereof, is for any reason held to be illegal or invalid, such illegality or invalidity shall
not affect any other provision of this Agreement or any Document, each of which shall be construed and enforced
without reference to such illegal or invalid portion and shall be deemed to be effective or taken in the manner and to
the full extent permitted by law.
• •
g) This Agreement and the other Documents integrate all the terms and conditions mentioned herein
or incidental hereto and supersede all oral representations and negotiations and prior writings with respect to the
subject matter hereof.
5. INDEMNIFICATION.
Borrower shall indemnify and hold Avfuel harmless against any and all liabilities, losses. damages, costs.
and expenses of any kind (including, without limitation, the reasonable fees and disbursements of counsel) suffered
or incurred in connection with any investigative. administrative or judicial proceeding relating to Borrower
(provided, that Avfuel shall have no right to be indemnified hereunder for its own bad faith or willful misconduct as
determined by a court of competent jurisdiction). Borrower further agrees to indemnify Avfuel against any loss or
expense which Avfuel may sustain or incur as a consequence of any default by Borrower in payment when due of
any amount due hereunder in respect of the Loan or Rebate.
IN WITNESS WHEREOF, Borrower and Avfuel have each caused this Agreement to be executed by their
duly authorized officers effective this as of the date first above written.
Borrower:
City of Fayetteville AVFUEL CORPORATION
y:
Name:
Title:
Name: Mark Haynes
Title: Vice President
FINANCING AGREEMENT
• •
EXHIBIT "A"
PROMISSORY NOTE
S12,000.00 November 1, 2004
FOR VALUE RECEIVED, City of Fayetteville (the "Borrower"), promises to pay to the order of AVFUEL
CORPORATION, a Michigan corporation ("Avfuel") the principal sum of S12,000.00 thereon at the rate of 7.75%per
annum, payable in 60 equal monthly installments of $241.88 each, beginning on November 1, 2004 and continuing on the
first day of each month thereafter.
All payments against this Promissory Note shall be applied first to any accrued interest and then to principal.
The acceptance by Avfuel of any payment in an amount less than the amount then due shall be deemed an acceptance on
account only, and the failure of the Borrower to pay the entire amount duc shall be and continue to be an event of default,
and at any time thereafter and until thc entire amount duc has been paid, Avfuel shall be entitled to exercise all rights
conferred upon it in the event of default.
This Promissory Note may be prepaid in full or in part without charge. However, no payment may be
designated as a "prepayment" unless all monthly payments then due under thc note have been paid. Prepayments shall be
applied first to any accrued but unpaid interest on the prepayment amount and then to principal. Prepayments will not
result in any change in the monthly payment amount or the due date for monthly payments.
This Promissory Note is issued pursuant to a Financing Agreement of even date herewith between Avfucl and
Borrower, and is secured by the security interest granted by Borrowcr to Avfuel pursuant to thc Security Agreement also
of even date herewith (collectively, the "Loan Documents"). Reference is made to those Loan Documents regarding
occurrences constituting events of default thereunder.
Any failure of the Borrower to pay any installment under this Promissory Note within thirty (30) days after its
due date shall constitute an event of default under this Promissory Note. Any occurrence constituting an event of default
under any Loan Document or any other Agreement between Avfuel and Borrower shall constitute an event of default
under this Promissory Note. Upon the occurrence of an event of default under this Promissory Note, Avfuel, in addition
to all other rights and remedies as may be permitted under any Loan Document or under applicable law, may declare the
entire balance of principal and interest undcr this Promissory Note immediately due and payable and, upon such
declaration, take such actions and exercise such remedies as may be prescribed or permitted undcr applicable law to
obtain collection from the Borrower.
Presentment for payment, notice of dishonor, protest, noticc of protest, and diligence in collection are waived,
and the time of payments or any part thereof may be deferred by thc holder hereof, without in any way limited liability
hereunder.
In the event that this Promissory Note is placed in the hands of an attorney for collection, or suit is brought
thereon, the Borrower shall be liable for reasonable attorney's fees and costs incurred thereby.
This Promissory Note, and the rights and duties of Avfuel and the Borrower hereunder, shall be interpreted in
accordance with the laws of thc State of Michigan.
City of Fayetteville
Page 4 of 4
• ATTACHMENT C 41/
STANDARD MAINTENANCE
MAINTENANCE:
Except as noted in 7.3 below. the City of Fayetteville will maintain the Equipment in a condition equivalent to that as of the day of This Lease
Agreement. normal wear and tear excepted. and to that end, will. at the City of Fayetteville's sole expense. provide all preventative
maintenance (including but not limited to lubrication. oil and filter changes. etc.). repairs, and replacement pans as are necessary to preserve the
Equipment in good operating condition and in compliance and in conformity with all laws, rules. regulation. and industry standards which are
applicable to the operation of refuelers. Complete and accurate maintenance records shall be kept by City of Fayetteville and AvFUEI. shall be
entitled to inspect the Equipment and the maintenance records at any time during regular business hours. At AVFUEL's option. any item of
repair or maintenance which would be the responsibility of City of Fayetteville may he performed by AVFuEL and billed back to City of
Fayetteville as additional rent.
City of Fayetteville shall be responsible for all Tire maintenance. repair. and replacement. CUAN(IING A TIRE ON A REEUELER IS VERY DANGEROUS
AND MUST NOT BE ATTEMPTED BY UNTRAINED PERSONNEL. CITY OF FAYFTTEVILLE AGREES TIIAI' IT WILL PF.RMITTIRES TO BE CHANGED ONLY BY AN
(1111 S TOE CONTRACTOR W 110 IS PROFESSIONALLY TRAI N ED 10 no soot WORE.
7.3 Except as noted in 7.5 below. Avfucl shall be responsible for the following repairs when. in its opinion. repair is necessary:
overhauls or replacement of the engine. transmission, differential. or telly valve. Avfucl shall be permitted access to the Equipment at arw
reasonable time in order to perform the repairs and modifications which arc its obligation hereunder. Repairs and maintenance to be
performed by Avfuel shall be completed within a reasonable time after notice. Avfuel assumes no responsibility for loss of use or any
other items of ancillary damage which may be caused by or result to City of Fayetteville by reason of the fact that the equipment becomes
inoperable.
City of Fayetteville shall not make any alterations or modifications to the Equipment of any kind including but not limited to painting,
mounting of radios or antennas. applying decals or lettering without the express written consent of Avfucl.
7.5 City of Fayetteville shall promptly notify of the need for any repair or maintenance which is required and which is not the City of
Fayetteville's responsibility. If such repair or maintenance is required as the result of intentional conduct. negligence. or failure to perform
repair or maintenance on the pan of City of Fayetteville or any of City of Fayetteville's agents or employees. City of Fayetteville shall be
liable for all costs associated with performing such repairs and/or maintenance.
FULL MAINTENANCE
Full maintenance provided at AVFUEL'S cost will be that as stated in AVFUEL'S proposal under Refueler Requirements (pg 10),
and described as "Proposal #2" (pg. 12), and will include a Preventive Maintenance (PM) program of monthly inspection and minor
maintenance, and on-call unscheduled repairs when required. Maintenance to be contracted with a local vendor subject to change,
currently Aviation Maintenance Professionals (AMP), c/o Mike Sergeant. 4158 S. School St., Fayetteville, AR, 72701, phone: 479-
527-9661 fax: 479-582-0830, email: aviationmaintpro@aol.com. See attached schedule of cost (Attachment D). It will not cover tires,
oil changes, or light bulbs. Cost of the PM and repairs to the City of Fayetteville, with the exception of the excluded items, will be
reimbursed to the City of Fayetteville by AvFUtu. upon presentation of approved invoices.
AvfuelueCorporationr
By: 1 1 +-U 9 By:
Its: Mark Hayne: V.P. Its:
Date:1 1 /19/04 Date:
Ci of Fay et eville, AR
FRO Asiation Fuel Supply Agrecmeni
•
AVIATION FUEI. SUPPLY AGREEMENT
GE.NERAI, TERMS AND CONDITIONS
I. PURCHASE: AND SALE: Subject to the terms and conditions contained
herein. throughout the entire Icrm of this Agreement. Avfuel agrees to sell and
deliver. and City of Fayetteville agrccs to purchase and pay for. the City of
Fayetteville's entire requirements for Products and all products to be handled,
stored. used, distributed or sold by City of Fayetteville or its affiliates al each
airpon represented by the Delivery Addresses listed in the Special Terms and
Conditions.. If. at any time during the Term of the AFSA City of Fayetteville. or
any entity controlled by or in common control with City of Fayetteville. operates
any other facility at thc Airport that sells aviation fuels (a "Supplemental MO").
then City of Fayetteville will. or will cause such other entity to enter into a new
AVIATION FUEL SUPPLY AGREEMENT with Avfuel (on the same terms and
for the same duration as the AFSA) for the supply of 100% of the requirements
of the Supplemental FRO for aviation fuel. CITY OF FAvErrEVILLC represents
and warrants that all products and services purchased hereunder will be for the
purpose of conducting its business. Avfucl has relied on this representation In
entering into this Agreement.
2. TERM: The initial term of this Agreement is five (5) years. beginning on the
Effective Date specified in the Summary. The term shall he automatically
renewed for successive three (3) year temps until one Pany delivers a Notice to
the other Pany of its intent to terminate at the end of the then current term. Such
notice shall be delivered at leas) ninety (90) but not more than one hundred
twenty (120) days prior to the expiration of the current term
3. PRICE AND PAYMENT:
J.I. Unless otherwise agreed in writing the price per gallon for Products
delivered to City of Fayetteville shall be as established by Avfuel from time to
time in its discretion based upon market and other conditions that it deems
pertinent based on the date and time that Avfucl loads the Products into delivery
trucks. Prices shall be F.O.B. thc Delivery Address(es) and shall be exclusive of
all taxes. fees. surcharges and other charges.
3.2. unless otherwise agreed in writing or otherwise required by the state law
where the Product is delivered. the standard unit of measurement of quantities of
Products purchased and delivered shall be the Net Gallon The term "Net
Gallon" shall mean thc volumetric measurement. in U.S gallons. of a Product
actually loaded and measured at the point of shipment. adjusted to thc number of
U.S. gallons that would have been loaded ata temperature of sixty degrees
Fahrenheit (60°F). The conversion ratio shall he from the current American
Society for Testing and Materials ("ASTM") IP Petroleum Measurement Tables.
3.3. Unless otherwise agrccd in writing by the Panics. City of Fayetteville
agrccs to pay in advance by bank wire transfer for all Products purchased
hereunder. Failure to pay in advance shall be construed as a credit transaction
and shall be subject to the Tcnns and Conditions of the Customer Credit
Program set forth below.
4. 'TAXES AND oT10:R CIIARGF:S:
4.1. City of Fayetteville shall pay all taxes. assessments. fees and other charges
(the "faxes.) which are imposed by any federal. state or local governmental
agency or by any airport authority (collectively. the "faxing Authorities') based
upon the delivery. sale. importation. inspection. storage or use of the Products
purchased by or leased to City of Fayetteville. excepting Taxes which arc
imposed upon Avfuel based upon its net income or revenues.
4.2. If the Taxing Authorities collect the Taxes directly from City of
Fayetteville. then City of Fayetteville shall pay all such Taxes on or before their
due dates. If the Taxing Authorities require That Avfucl collect the Taxes from
City of Fayetteville at the time of sale Avfuel will use its hest efforts to include
all such Taxes in its invoices to City of Fayetteville and City of Fayetteville shall
pay all such invoices on or before their due dates. (In its invoices. Avfuel will
identity those 'faxes as separate items.) If City of Fayetteville is entitled to an
exemption from any Taxes which the Taxing Authorities require be collected by
Avfuel. then. in order to permit Avfucl nut to collect those Taxes. City of
Fayetteville shall obtain and provide to Avfuel current and valid exemption
certificates relating to (hose Taxes. It: subsequent to the issuance of any invoice,
the Taxing Authorities or Avfuel advise City of Fayetteville of additional 'laws
payable with respect to the Products covered by That invoice. then City of
Fayetteville shall promptly pay such additional Taxes.
4.3. City of Fayetteville actino' ledgcs that it remains solely responsible for all
such Taxes. and will indemnify Av furl against any liability for such Taxes even
Re‘ 7110103
•
if AvIuel tails for any reason to include any such Taxes in its invoices to City of
Fayetteville. Ilusvevcr. Avfucl will indemnify City of Fayetteville against any
lac charges. penalties or
other charges that City of Fayetteville incurs if Avfuel's failure to include any
Taves in its invoice is duc to gross negligence or willful misconduct.
44. City of Fayetteville's obligation to indemnity Avfucl shall extend to any
Taus which are assessable against City of Fayetteville as a result of any
subsequent change or reinterpretation of the laws relating to those 'faxes or any
exemptions from those Taxes and to any Taxes for which an exemption had been
claimed but which are subsequently assessed by Taxing Authorities based upon
its rejection of the claimed exemption for the Products or City of Fayetteville.
5. DELIVERY:
5.1. Deliveries shall be made to the Delivery Address(es) listed in the Special
Tcrms and Conditions. Avfuel or its authorized shipping agent ('Shipping
Agent') shall be provided access to City of Fayetteville's storage facilities
during normal business hours. or at such other times as may be approved by City
of Fayettevillc's authorized representative. for the purpose of unloading the
Products. Unless otherwise agreed in writing. the minimum delivery of Jet A
fuel will be a full standard Iranspun tanker load which is equivalent to 7,500
Gross Gallons. and the minimum delivery for Avgas fuel will be a full standard
tratspon tanker load which is equivalent to 8.500 Gross Gallons. Avfucl
reserves the right to impose a surcharge for deliveries of less than a lull tanker
load.
5.2. Delivery shall be into tanks designated by City of Fayetteville. Such
designation shall be construed as a warranty that the designated tanks and
containment areas have been inspected and approved by thc appropriate
regulatory agencies. City of Fayetteville shall be responsible for all unloading
operations including thc placement of hoses into the proper storage tanks City
of Fayetteville shall specifically designate and gauge the available capacity of
the tanks into which the Product shall be unloaded. and shall bear all
responsibility of spillage or contamination of the Product after it leaves the end
of any properly operating hose provided by Avfuel or its Shipping Agent.
Access to City of Fayetteville's tanks shall be furnished in such a manner that
Avfucl or its Shipping Agcnt can safely and conveniently reach City of
Fayetteville's storage facility with the hoses mailable. and Avfuel or its Shipping
Agent may refuse to complete any delivery which Avfuel or thc Shipping Agent
determines. in it sole discretion. cannot be made safely.
5.3. Any clairn by City of Fayetteville of any discrepancy in the quantity of thc
Product delivered shall be effective only if made by written notice delivered to
Avfuel within twenty-four (24) hours alter the Product is delivered to City of
Fayetteville. GIVEN THE NATURE OF THE PRODUCTS. TU4: IS OF
711E ESSENCE WITH RESPECT TO SIICII CLAIMS AND NO CLAIM
SHAI.1. RE PERMITTED OR EFFECTIVE UNLESS DELIVERED
WITHIN TIIE SPECIFIED PERIOD.
6. FORCE MAJEURE: Except as provided below. neither Pany shall be
responsible for any failure to comply with the terns of this Agreement duc to
causes beyond its reasonable control for the period the effects of such causes
continue. These causes shall include but shall not be restricted to: lire, storm.
Ilood, eanhquake. explosion. accident, aces of any hxal, state or federal authority
or agency or of a public enemy. war. rebellion. insurrection, sabotage. epidemic.
quarantine restrictions, labor disputes. transportation embargoes or delays. acts
of God and unavailability of the Product. For purposes of this Agreement. the
term "unavailable shall mean That Avfuel. for any reason whatsoever. including
but not limited to government action. reduced or allocated fuel supplies. lack of
Iranspomation or the like. is unable to procure and deliver a specific Product on a
commercially reasonable basis within two (2) days of the specific time requested
by City of Fayetteville. In that event. and only to the extent of such
unavailability, the Panics hereto shall he relieved of thcir obligations undo the
applicable provisions of This Agreement. If and as applicable. Avfucl will
comply with any governmental statute or regulation mandating the allocation of
available supplies of Produces. The provisions of this Section shall not apply to
the tailurc of a Party to pay any monetary amounts when due under This
Agreement.
7. I.IMfn:D WARRANT':
Page 1 o(8
FRO minion fuel Supply Agreement
7.1. Avfucl warrants that all products delivered pursuant to this agreement.
regardless of whether title transfers at that lime. will. at the time of delivery.
conform to the then latest revision of following specifications: Aviation
Gasoline will contbrm to the ASTM Specification D910. and Jct Fuel will
conlium to the ASTM Specification D1655. Avfuel retains the right to revise the
applicable specifications upon written notice to City of Fayetteville.
7.2. THE LISIFFED WARRANTY S -FATED ABOVE IS TIIE ONLY
WARRANT GIVEN BY AVFIIEL REGARDING THE: PRODUCES.
AVFIIEI. DISCLAIMS ANY OTHER WARRANTIES. EXPRESS OR
IMPLIED. INC1-IIDING, WI'1'HOIIT I.IS1I'FAl'ION, ANY WARRANTIES
OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR
I'IIRPOSE.
7.3. City of Fayetteville shall sample and test each shipment of Product prior to
delivery using industry standard test procedures. If City of Fayetteville
determines or suspects non-confomliry then Avfucl must be immediately
notified. while the Shipping Agent is still present. and the delivery shall not be
completed until tither City of Fayetteville accepts the Product. acknowledging
conformity. or Avfucl replaces the Product. City of Fayetteville will permit
Avfucl access to City of Fayetteville's premises and records during normal
business hours and upon four (4) hours' Telephonic or written notice to City of
Fayetteville tin purposes of investigating any claim of non -conformity. If it is
determined that the Product is non -conforming, Avfucl's sole obligation shall bc
either (1) replacement of the non -conforming Product with conforming Produce,
or (2) removal of the non-confomting Product and cancellation of the invoice for
that Product or refund of the amount paid for that Product, as determined by
Avfuel. Avfucl will bc reasonably prompt in its actions hereunder TIME IS
OE THE: ESSENCE AND ANY FAILURE TO FOLLOW 771E ABOVE
PR(IC:E:DIIRE SHALT. VOID THE LIMITED WARRANTY.
8. (.OSIPLIANCE. WITII LAWS:
8.1. Each ('any shall. at all limes and in all respects. comply with all federal.
state, county or municipal laws, ordinances. rules and regulations gowning its
actions in the purchase. storage. handling and sale of the Products and all
industry standards pertaining thereto. including those that may contain Tetraethyl
lead or (cad alkyl. Further. each of the Panics agree to use its reasonable best
elions m assist the other ('any in complying with such laws. ordinances. rules
and regulations which the other Party may bc required to observe in the
perk rmancc of its obligations under this Agreement Each Pany reserves the
right to terminate those portions of this Agreement governing the purchase of a
Product if the other Party violates the provisions of This subsection with respect
to that Product. In such event. the remaining provisions of this Agreement shall
continue in full force and effect.
8.2. Each Pany shall properly instruct its employees. agents and conlraaors with
regard to compliance with all applicable laws. ordinance. rules. regulations and
standards govaning the sale and distribution of the Products that are the subject
of this Agreement.
9. INDEPENDENT STATUS: Each Party shall al all times function as an
independent contractor and not as a subcontractor. employee or other agent of
the other Party. Neither Party shall have the authority to and shall not purport to
make any commitments or representations on behalf of the other Party or
otherwise to take any actions on behalf of the other Pany.
10. RECPROCAL INDEMN'IFICAT'ION: Except as otherwise provided in
this Agreement. each Party (thc "Indemnifying Pany") agrees to indemnify and
to hold harmless the other party and the officers. directors. employees and agents
of the other party (the "Indemnified Panics') from and against any and all
claims. demands. losses. liabilities. causes of action. costs or expenses (including
attorney's fees) of whatsoever nature which are asserted against or incurred by
any Indemnified Party as a result of the brcach by the Indemnifying Pany of its
obligations undcr this Agreement or as a result of any wrongful act or omission
of the Indemnifying Pany or of any officers. directors. employees or agents of
the Indemnifying Pany. Any nnmount payable by the Indemnifying Pany under
this Section 10 shall he duc within ten (10) days after written demand and any
such amount which is not paid when due shall bear interest liom the due date to
thc date of payment at the rate of 16% per annum (or. if Tess. at the maximum
rate of interest permitted under the laws of the State in which the Indemnifying
Pany has its principal place of business). Without limiting the above provisions.
the obligation of the Indemnifying Party under this Section 10 shall include any
reasonable attorney's fees or other costs incurred by the Indemnified Parties in
enforcing the obligation of indemnity under this Sectio Each party's obligation
to indemnify shall surviae the termination of this Agreement and shall remain in
full force and effect until the lapse of all applicable statutes of limitations or
Rev 7110103
Page 2 Mg
similar time periods withiwhich an action for indemnity or contribution muss
be brought.
11. BREACH AND TERMINATION:
11 I Failure of a ('any to comply with thc provisions of this Agreement shall
constitute a breach of the Agrecmcnt by the non -complying Party. Except as
otherwise permitted under this Agreement. the non -breaching Party shall provide
Notice of that breach to the other Party in the manner set forth in Section 14.
The Notice shall specify the alleged breach and the period within which the
breach must be cured which. except as provided in Section 11.2. shall be at Icasl
len (10) business days. The Pany receiving such Notice shall respond thereto in
writing within three (3) business days. If the breach is not cured or the dispute
resolved within the period specified in the Notice. the Party claiming hreach. by
lusher written Nolice. at its election. may all'Irm this Agreement and initiate
appropriate legal actions to require the other Party to remedy that breach or may
immediately terminate this Agreement. In tither instance. the Pany claiming the
breach may by appropriate legal proceedings scck and secure recovery of any
damages resulting from that breach.
11.2 The provisions of Section 11.1 to the contrary notwithstanding. if the
preach is of the City of Fayetteville's obligation to make a payment to Avfuel
when due. Then Avfucl may declare all amounts owed to it Immediately duc and
payable. and Avfucl. in addition to all other rights hereunder. may suspend its
performance or terminate this Agreement fonhwith and without giving City of
Fayetteville Notice or the opportunity to cure. Avfucl shall also have the right to
onset any amount That Avfucl then or thereafter owes to City of Fayetteville. to
any guarantor of the City of Fayetteville's obligations under This Agreement or to
any affiliate entity that owns. is owned by or is under common ownership with
the City of Fayetteville against any amounts owed by City of Fayetteville to
Avfucl City of Fayetteville warrants That it is authorized to make This
commitment with respect to amounts owed by Avfucl m such guarantors and
affiliate entities. In addition. Avfucl or its agents or employees may, without
further notice and without legal process cntcr onto any facility of City of
Fayetteville for the purpose of repossessing any Item of Equipment or any
personal property of any description ovmed by Avfucl, and City of Fayetteville
shall use its best efforts to assist Avfucl in such repossession. Pursuit of the
foregoing shall not preclude pursuit of any other remedies provided by law. nor
constitute a waiver of any amount due by City of Fayetteville hereunder or of
any damages accruing by reason of the breach of any of the terms or conditions
contained herein Aviation fuels on hoard repossessed Equipment will become
the propcny of Avfucl. and credited against any amount owed Avfucl by City of
Fayetteville at that days market price.
11.3. The Party claiming a breach may waive That breach by giving Notice to the
other parry in thc manner set forth in Section 14 below. The waiver of any
preach shall not constitute a waiver of any subsequent breach of the same or any
other term or condition. Any failure of either Pany to enforce rights or seek
remedies arising out of any breach by the other Party shall not prejudice or affect
the rights and remedies of that Party in the event of any subsequent hrcach by the
other Pany.
11.4. Except as set forth in Section 11.2 above. any dispute that arises under
this Agreement. pursuant to Section II 1 above or otherwise. shall be submitted
to a senior officer or other person having the authority to negotiate the resolution
of such disputes for each Pany Those persons shall attempt. in good faith. to
resolve the dispute. and no action in law or equity shall lie until the process set
forth herein shall have run its course. 11' the dispute involves the payment of
owns. all undisputed amounts shall bc paid when due regardless of whether the
undisputed amount is only pan of an invoice.
11.5. The exercise of a Party's right to terminate the Agreement as aforesaid or
to seek any other remedy shall not bc deemed an election of remedies and shall
he without prejudice to the Tcmtinating Party's rights to scck any other remedy
afforded to it by this Agreement or by law or equity. In any action related to the
enforcement or breach of this Agreement. the prevailing ('any shall have the
right to recover its reasonable attorney's Ices and costs actually incurred.
12. INSURANCE:
12.1. Prior to thc Effective Date stated in thc Summary. City of Fayetteville
shall submit proof that it holds. or. if it docs not so hold. shall secure. at its cost.
the following insurance and furnish Avfuel a Ccnificate of Insurance evidencing:
(1) aviation general liability insurance. including products and completed
operations liability. with limits not less than one million dollars (S 1.000.000.00)
combined single limit for bodily injury and property damage. and (2) automobile
liability insurance with limits not less than one million dollars ($1.000.000.00)
comhincd single limit for bodily injury and propcny damage: (31 workers
FRO Asiatic° Fuel Supply Agreement
compensation covering all employees of City of Tds'entwine and (4) physical
damage coverage covering the value of any leased Equipment. Insurance
policies shall be issued by insurance companies acccpuhle to Avfuel (whose
acceptance may not bc unreasonably' withheld). shall name Avfuel, or its
subsidiary. as applicable. as an additional insured and/or loss payee. and shall
provide for at (cast thirty (30) days' wriucn notice to Avfuel prior In cancellation
or modification. City. of Fayetteville shall maintain such policies in full force
and effect Throughout thc tcrm of this Agreement. City of Fayetteville may. if it
chooser. apply for this insurance through Avfuel's subsidiary. Avsurancc
Corporation.
12.1 Avfuel currently maintains an excess aviation products liability policy
under which its qualified customers may be named as additional insureds. For so
long as Avfuel elects to continue to maintain that insurance and permit City of
Fayetteville to be additional insureds. upon the written request of City of
Fayetteville and to the extent that City of Fayetteville qualifies for such
coverage. City of Fayetteville shall bc added as an additional insured under that
policy upon payment by City of Fayetteville of any additional premium required
by Avfuel's insurer for such coverage. If Avfuel no longer offers This produce
liability insurance program. or the product liability insurance is no longer frcc to
City of Fayetteville. Avfuel will notify City of Fayetteville with Thirty (30) days'
wriucn notice of this change or Avfuel's intent to temtinate the product liability
insurance program.
1.3. ASSIGNMENT: City. of Fayetteville shall not assign its rights or delegate
its obligations under this Agreement. in whole or in part. unless with the prior
written consent of Avfuel. which consent will not bc unreasonably withheld.
Any transfer of a controlling interest in City of Fayetteville shall bc dccmcd an
assignment requiring thc consent of Avfucl.
14. NOTICES: All notices permitted or required under this Agreement shall be
in writing. Notices by facsimile shall tK dccmcd ''delivered" on the date of
contimted transmission. without error. to the fax number designated in the
Summary. Notices by mail shall be deemed delivered Three (3) business days
following the date deposited with the United Slates Postal Service. certified mail.
return receipt requested. postage prepaid. addressed to the Party at the address of
the principal office. Notices sent by overnight courier shall be effective on the
next business day billowing deposit with the overnight courier for overnight
delivery with the delivery fee prepaid. addressed to the Party at the address of the
principal office. and with instructions to obtain the signature of the addressee.
15. GOVERNING LAW: This Agreement shall be construed as having been
made in the State of Michigan. and all rights and obligations under it shall be
governed by the laws of the State of Michigan without regard to its Conflict of
Laws provisions. All litigation arising hcrcundcr shall be brought in the State of
Michigan, and exclusive jurisdiction shall lie with the courts located in
Washtenav County. Michigan and each Party hereby submits to the exclusive
jurisdiction of those coons.
16. SEVERABILITY: In the event that any coun of competent jurisdiction
shall determine that any provision of this Agreement shall be unenforceable. then
that provision shall bc dccmcd to bc null and void and the remaining provisions
hereof shall remain in full force and effect.
17. ENTIRE AGREEMENT TERMS: This Agreement. including all of its
pans. sets forth thc cntirc agreement between Avfuel and City of Fayetteville
with respect to the subject Matter hereof and (here are no other Terms or
conditions. oral or written. express or implied. relating to or otherwise affecting
such subject matter. No tam or condition of This Agreement shall be changed.
supplemented. cancelled or waived unless in writing and signed by both Avfuel
and City of Faycttevillc. If Avfuel and City of Fayetteville have. prior to the
effective date. been panics to any other agreement relating directly to the sale of
Products to City of Fayetteville (a "Prior Agreement.). such Prior Agreement.
except for guarantees. shall he superseded as of thc effective date and all rights
and obligations between Avfuel and City of Fayetteville with respect to the
supply of Products from and after the effective date shall be govancd by the
terms of this Agrcemcnt. the Terms and conditions of such Prior Agreement
shall. however. remain in full force and effect with respect to rights and
obligations relating to the supply of Products prior to the effective date and
nothing contained in this Agreement shall be construed as Terminating or
otherwise affecting any such rights or obligations.
CIiSTO\IER CREDIT PROGRAM:
IN TIIE EVENT TIIAT AVFUEI, CHOOSES TO DELIVER 000135 OK
SERVICES TIIAT DAVE: NOT BEEN PAID FOR IN FULI. BY WIRE'
TRANSEER PRIOR 1O 1111: TIMEOF DF.1.1\E.R\, A\FUF:I
SIL\l.l. B1; CONS'IRIIED is
(LIVING• Ex'TENIIIA1fFD CRF.II11 "TO
Rev 7/IO103
Page 3 of
OF FAYFITE\'ll•LIIIP
FN'D THE FOLLOWING TERMS AND
CONDITIONS Sf1A1.1. API'I.Y.
I. Credit terms may not be used during any period in which the City of Fayetteville
is in default of this Agreement. In addition to the provisions of Section I I of the
General 'terms and Conditions. for the specific purposes of this City. of Fayetteville
Credit Program. the City of Fayetteville will he in default if (I I any amount charged
to the City of Fayetteville's account is not paid in accordance with the agreed upon
payment terns: (2) if and for so long as the City of Fayetteville is in breach of any
of its obligations under any Agreement with Avfuel or any of its subsidianes: or (3)
if Avfuel determines that that is any misrepresentation or breach of a warranty by
the City of Fayetteville undo or with respect to any Agreement with Avfuel. Usc
of credit is limited to thc amount specified in the Special Penns and Conditions of
this Agreement. No purchase may he made which would cause the total amount
owed under this Agreement to exceed that credit limit.
2. Upon termination of this Agreement City of Fayetteville shall have no right to
credit terms for new purchases. but all obligations incurred prior to the termination.
as well as all remedies provided for default or breach. shall survive. If Avfua
intentionally or unintentionally. permits any purchases on credit after termination.
then the terms of This Agreement shall pertain to those charges.
3. Subject to the approval by Avfucl at its offices in Michigan. all purchases by
City of Fayetteville for which Avfuel docs not receive payment at or prior to the
time of delivery to City of Fayetteville shall he charged as principal to City of
Fayetteville's account. Avfuel may require City of Fayetteville or City of
Fayetteville's authorized representative. as a condition of delivery or at any time
thereafter. to give receipt lin all deliveries in writing and to sign sales slips and
other documents in Avfuel's opinion necessary to record or substantiate any or all
transactions resulting in a charge to City of Fayetteville's account.
4. Avfuel shall invoice City of Fayetteville for all Fuel products delivered to
City of Fayetteville or to City of Fayetteville's designees. Invoices shall include
the selling price of the product delivered. taxes. duties. and any other charges as
separate line items. Invoices am payable on or before that due date specified in
the invoice. Unless otherwise determined by Avfuel in its discretion, all
payments received will be applied by Avfuel (subject to collection of remittance
if other Than cash) first to interest. if any. accrued on City of Fayetteville's
account. then to the unpaid principal balance owed upon such account in direct
calendar order of due date. City of Fayetteville agree to pay to Avfuel upon
demand a lira of 550.00 for each check draft or other form of remittance that is
not honored by the drawee upon due presentment by Avfucl or its agents. From
time to time. Avfuel may send City of Fayetteville a statement of City of
Fayetteville's account for City of Fayetteville's information showing in summary, or
in such detail as Avfuel may deem appmpriate. current Transactions Avfuel posted
to City of Fayetteville's account to date thereof: the amount of interest (if any)
which has accrued. and the balance owing thereon: however, the failure of Avfuel
to furnish any such statement shall not relieve City of Fayetteville of the obligation
to make payment against invoices schen due in accordance with the other terns of
this Agrccment. City of Fayetteville agrees to review all statements promptly after
receipt. and shall have fifteen (15) days from date of receipt to notify Avfuel in
writing of any discrepancies If no such notice is given. such statement shall he
conclusively presumed correct.
5. In the event That any invoice is not paid in full by the due date stated (herein.
the unpaid amount of The invoice shall bear interest until paid at the lower of
18% per annum or the highest rate which may lawfully be contracted for.
charged and received according to applicable law for business purchases at the
time of delivery. Notwithstanding anything in this Agreement to the contrary.
City of Fayetteville shall never bc obligated to pay and Avfuel shall neva be
entitled to receive any interest upon any indebtedness incurred by City of
Fayetteville pursuant hereto in excess of thc maximum contract rate of interest
authorized by applicable law for business purposes. and it is expressly
understood and agreed that if Avfuel shall render any charge for the payment of
usurious interest. such charge shall be automatically and unconditionally reduced
to the maximum nun -usurious amount and the excess. if paid. shall be applied as
credit to City of Fayetteville's account. If such application results in a credit
balance in City of Fayetteville's said account. such balance shall bc refunded to
City of Fayetteville or applied to the next due amount in such account as City of
Fayetteville shall direct
6. If. at any time during the tcrm of this Agreement. the financial responsibility
of City of Faycticvillc becomes impaired or unsatisfactory to Avfud• in the sole
judgment of Avfuel. Avfuel. effective immediately upon delivery' of Notice to
City of Fayetteville. may require the advance cash payment or other security
satisfactory to Avfuel for any shipment of fuel and shipment may be withheld
until such payment or security is received
FRO A'iatian Fuel Supply Agreement
7. For the purpose of securing a payment of all indebTCSness of City of Fayetteville
to Avfucl from time to time outstanding (including. without limitation. any amounts
due under this Agreement or any other agreement or instmment between Avfucl
and the City' of Fayetteville) grants to Avlucl a purchase money security interest in
and to all of City of Fayetteville's inventory of aviation fuels and other products of
similar type or description as are purchased from Avfuel. and all accounts. contract
rights and other proceeds fmm such inventory. whether now owned or hereafter
acquired. City. of Fayetteville warrants that the purchase money security interest
granted herein is and shall remain superior to any other security interests granted by
City of Fayctteville to any other entity. For so long as this Agreement is in effect,
all of Cin- of Fayetteville's inventory of aviation fuels will be presumed to be
merchandise purchased pursuant to the Agreement and subject to the purchase
muncy securiry interest granted by this Agreement. City of Fayetteville hereby
authorizes Avfucl to sign and record all financing statements and other instruments
which Avtt'ucl may reasonably rcquin in order to create. perfect and continue in
force said security interest and first priority lien. City of Fayetteville authorizes
Asiucl to tile a mac copy of this Agreement in lieu of any financial statement The
rights and obligations of Avfuel and the City of Fayetteville undo and with respect
to the security interest and first priority lien created by this Section shall bc
interpmed in accordance with the Uniform Commercial Code in effect in the state
ol'thc Billing Address of the City of Fayetteville as stated in the Summary.
8. THIS PARAGRAPH APPLIES ONLY TO TIIOSE PERSONS WHO'S
SIGNATURES APPEAR AS GIIARANTORS ON THE SIGNATURE PAGE
OF TIIIS ,tCREEMEN'F. PERSONS SIGNING AS GIIARANTOR.S SIIAI.I.
BE CONSTRUED AS PERSONAL GUARANTORS REGARDLESS OE
ANV O'MIIER DESIGNATION. In consideration of the extension of credit by
Avfuel to City of Fayetteville. each of the parties signing as Guarantors on the
signature page of this Agreement agrccs to guarantee the prompt payment of all
amounts owed to Avfucl by City of Fayetteville whether such amounts are
existing al the time that this Guarantee is signed or arc incurred at any tame
during the life of this Guarantee. Avfuel may demand payment from a Guarantor
under this Guarantee at any time that it deems itself insecure with respect to any
amount owed by City of Fayetteville Each Guarantor hereby waives notice of
acceptance of this Guarantee by Avfuel. notice of default by City of Faycttcvillc,
and all other notices that the Guarantor may otherwise be entitled to receive.
Failure on the pan of Avfuel to give any such notice shall not discharge any
obligation of any Guarantor under this Guarantee. Each Guarantor also hereby
waives any requirement that Avlucl proceed against City of Fayetteville before
making a demand for payment hereunder. and agrccs to pay all atmmey's fees
and court costs incurred by Avfucl in the enforcement of its rights hereunder.
This is a continuing Guarantee and shall not be revoked by the death of any
individual party or by the dissolution of any corporate party or any other entity
that is a party hereto. and shall remain in force until Av fuel receives written
notice to extend no further credit to City of Fayetteville on the security of this
Guarantee. Such nolicc shall not discharge any obligation of any Guarantor as to
any then existing indebtedness or obligation of City of Faycttcvillc arising out of
a transaction that look place prior 10 the receipt of such notice. regardless of the
time for determination. maturity. or performance thereof Each Guarantor agrees
to provide periodic statements of financial condition to Avfucl upon request.
This Guarantee shall survive the termination of this Agreement until all amounts
due Avfuel under this Agreement have been paid in full.
BRAND PROGRAM.
IF (ITE OF E\ErntvII.I.F: HAS ELF;CFF,p TO PARTICIPATE: IN
/iVFt;EL'S BRAND PROGRAM. THE FOLLOWING WII.I. APPLE
I. City of Fayetteville has been invited and has elected to participate in Avfuel's
Brand Program. Accordingly. Avfucl thereby licenses City of Fayetteville as a
dealer ("Branded Dealer") to use Avfuel's Firand Names and Trademarks subject
In the provisions set tbnh herein All trade names. trademarks. service marks.
logos and other commercial symbols that Avfucl either owns or has the right 10
sub -license (the 'Intellectual Property") shall be and remain the property of
Avfuel Further an signs. decals. graphic materials and other tangible property
supplied by Avfuel which bear or arc imprinted with any of the Intellectual
Properly or are used to imprint or display the same (the "Branded Property') and
all replacements thereof shall be and remain the pmperty of Avfucl. Any use of
the Intellectual Property or the Branded Property by the City of Fayetteville
otherwise than as expressly authorized by this Agreement is hcrcby expressly
prohibited. Upon termination of City of Fayetteville's participation in the Arad
I'mgrann City of Fayetteville shall. at its expense. de -install and return to Avfucl
all salvageable signage and return or destroy all other items that identify City of
Fayetteville as a branded Avfuel dealer.
2. Avlucl agrees to supply to City of Fayetteville. Iota City of Fayetteville's use
and possession during the term of this Agreement such signs. decals, credit card
intprinters and other graphic materials as Avfucl deems necessary' in order to
Rev 7/10/03
identify City of Fayctteviur!ras an Avfuel Branded Dealer. Unless otherwise
agreed in writing, Avfucl will hear all costs of such materials. City of
Fayetteville agrees to honor all Avfuel charge cards. subject to the provisions of
the Credit and Charge Card Acceptance Program set forth below. during City of
Fayetteville's participation in Avfuel's Brand Program.
3. City of Fayetteville shall be responsible for obtaining all necessary permits
and for installation of all Branded Property including (without limitation) all
electrical and other connections. and shall make sure that all installations shall
comply with all brand specifications and with all applicable slate and local
codes. ordinance and governmental regulations (if any). Unless otherwise
agreed in writing. the City of Fayetteville will hear all costs of installation. No
signage shall he installed so as to become a fixture upon real property. 'Ihc use
of color schema and Intellectual Property painted on facilities and equipment
owned by City of Fayetteville or others and used in the conduct of City of
Fayetteville's business. shall comply with panicular and displayed specifications
City of Fayetteville shall be responsible for maintenance and upkeep of Branded
Property and Paint -ons. and agrccs to keep and maintain the same at all limes in
a good. clean. safe. operative and lint class condition. neatly painted and
displayed. If any of such installation or maintenance is performed by Avfucl.
City of Fayetteville agrccs to remit upon demand all costs thereof. including
(without limitation) all expenditures for labor. materials and the like. If any
Branded Property is damaged, Inst or destroyed while in City of Fayetteville's
use, possession or control. or if City of Fayetteville shall deliver any of such
property to anyone not herein expressly authorized to use or possess it. City of
Fayetteville agrccs to repair. recover or replace such properly fonhwilh. at City
of Fayetteville's expense.
4. City of Fayetteville shall keep all Branded Propcny insured at all times
against loss, theft lire or physical damage. up to the full replacement cost
thereof. designating Avfucl as the loss payee. the City of Fayetteville shall pay
when due all personal property taxes and assessments assessed against the
Branded Properly and shall neither suffer nor permit any lien or encumbrance or
any attachment against any of such Branded Property.
5. City of Fayetteville agrccs that it will not use or display any Branded Property
or Intellectual Property: (I) in a manner which causes or is calculated to cause
confusion among patrons of City of Fayetteville or the general public as to the
type. characteristics. quality. manufacturc or sponsorship of any fuel or other
product which City. of Fayetteville offers for sale. (2) for the purpose of selling
or promoting the sale of aviation fuel other than fuels supplied by Avfuel: or (3)
for the purpose of selling or offering for sale any produce which has been diluted
or adulterated. whether intentionally or not. City of Fayetteville further agrees
that it will at all limes maintain ib facilities and conduce its operations in
compliance with (hose standards and procedures established from time to time by
Asiucl and applicable to aviation fixed base operators displaying any of the
Intellectual Property. Such standards and procedures may include (without
limitation) image quality standards for the brand displayed. quality control and
refueling procedures for products bearing such brand. and standards for services
offered and facilities utilized by City of Fayetteville in conjunction with such
products Avfuel may. but shall he under no obligation to conduct periodic tests
and inspections as it may deem appropriate to evaluate compliance with this
Agreement. Copies of all test and inspection moons shall bc given to City of
Fayetteville. It is expressly understood that the purpose of any such tests or
inspections is to assist City of Fayetteville in complying with thc standards set
for a Branded Dealer. By performing such tests or inspections Avfuel assumes
no responsibility for City of Fayetteville's failure to comply with thc Standards or
for safely hazards. latent or patent. created or maintained by City of Fayetteville.
If Avfucl determines. in its sole discretion, that City of Fayetteville is or has
violated this provision. then Avfucl may suspend or terminate City of
Fayetteville's right 10 use Avfuel's Brands and or Trademarks.
Avfucl reserves the right to amend. suspend or trmninatc the program at any
time. City of Fayetteville may withdraw from This Program upon 60 days Nonce
to Avfuel. See Section 14 of the General Terms and Conditions regarding
Notices. Termination of City of Fayetteville's participation in this Program shall
not he construed as laminating the Agreement or City of Fayetteville's
participation in another Program.
AVTRIP PROGRAM.
IF CITE OF FAYETI'F.VII,LE HAS ELECTED TO PARTICIPATE IN
AVFUE1: S AVTRIP PROGRAM, THE FOLLOWING WILL APPLY.
I. City of Fayetteville has been invited and has elected to participate in Avfuel's
AVTRIP Program a marketing incentive program intended to reward pilots who
choose to purchase fuel and services from panicipating Avfucl dealers.
2. City offayetteville will:
Page 4 of 8
FRO Muiion Fuel Supply Agreement
•
2.1 Use its best efforts to enroll pilots in the AVTRII' Program:
2.2. Award all participating pilots two AVTRIP Points for each U.S. gallon of
fuel purchased front City of Fayetteville and. at City of Fayetteville's discretion.
a minimum of one point for each U.S. dollar. or pan thereof: spent by a
panicipating pilot for parts and services at City. of Fayetteville's facilities:
2 3 Pay to Avfuel. by deduction from amounts due to City of Fayetteville or in
cash if no amounts arc due City of Fayetteville. S 01 for each AVTRII' point
awarded.
24. Maintain complete records of all points earned by participating pilots:
2 5 'train its personnel in the operation of thc AVTRII' Program. and
prominently post written materials relating to AVTRIP in and around its
facilities in order to encourage pilot participation in thc program: and
2.6. Promptly send all enrollments to Avfuel so that the enrollee can be added to
the list of AVTRIP participants. Not Icss frequently than every two weeks. City
of Fayetteville will send Avfucl copies of all records pertaining to points earned
by pilots that have not bccn previously mooned via POS transmission. and remit
to Avfuel all sums due hereunder.
3. Avfuel will:
3.1. Act as the administrator of the AVTRIP Program: and
3.2. Include the AVTRIP Program in its local. national and international
marketing and advertising efforts as it deems appropriate to encourage pilot
participation in thc AVTRII' Program
4. The price charged to any pilot for fuel. parts or service shall not be based on
whether a pilot participates in the AVTRII' Program.
S. Avfuel reserves the right to amend. suspend. or terminate the AVTRIP
Program at any time Avfucl also reserves the right to terminate any individual's
participation at any time for misuse of the AVTRIP card. violation of thc rules of
the program. or inactivity for a period of 12 consecutive months. City of
Fayetteville may withdraw from this Program upon 90 days Noticc to Avfucl.
Sec Section 14 of the General Terms and Conditions regarding Notices.
Termination of City of Fayetteville's participation in this Program shall not be
construed as terminating the Agreement or City of Fayetteville's participation in
any other program.
CREDIT AND CHARGE CARD ACCEP'T'ANCE PROGRAM:
IF CITY OF FAYFTTEVILLF: IIAS ELECTED To PARTICIP.ATF. IN
AVFUEI.'S CREDIT CARD ACCEPTANCE PROGRAM, TIIE
FOLLOWING WILL APPLY
I. City of Fayetteville has been invited and has elected to participate in Av fuel's
Credit and Charge Card Acceptance Program Accordingly. City of Fayetteville
may honor any valid credit or charge card listed in the most current Accounts
Receivable Discounts Schedule ("ARDS') issued by Avfucl ('Acceptable
Cards') tbr the purchase of products and services if the purchase has bccn
specifically approved by Avfuel Avfuel's ARDS is subject to change upon live
(5) days prior written notice.
2. City of Fayetteville may also choose to participate in the Avfuel Ilonor All
Program. The Honor All Program permits City of Fayetteville to extend credit to
any customer that has a billing address within the United States or its Tcnitories
or Canada and that presents a valid credit card from any nationally recognized oil
company on Avfucl's approved Honor All list if: (1) City of Fayetteville does
not have a merchant agreement with the issuer of the card or any processor of
such accounts other than Avliel. and (2) the purchase has been specifically
approved by Avfuel. The discount schedule for Honor All transactions will
generally he higher than the discounts applied under the ARDS 11' City of
Fayetteville chooses to participate in the Honor All program. then all Ilonor All
invoices must contain the cunent telephone number and current billing address
of both the cardholder and the Authorized Uscr. and City of Fayetteville shall
inform the presenter that cardholder will he billed directly by Avfucl and not by
the card issuer. Honor All transactions am limited to a total of $250 for
miscellaneous services such as tic downs. catering. aircraft storage. pilot
supplies. chars. repairs and other services. and to an aggregate total of 52.000.00
for a single transaction.
Rev 1/10/03
3. City of Fayetteville shHlrprepare a voucher for each credit card. charge card
or Honor All transaction and shall promptly submit those vouchers to Avfuel
The Icrnt "voucher' means a machine imprinted credit card slip or other written
record of a credit sale in form acceptable to Avfuel that has bccn fully completed
by City of Fayetteville manually or electronically by a Point of Sale (POS)
machine in accordance with the instructions contained in the then current edition
of Avfuel's manual and signed by the Authorized User. If the voucher is
prepared manually. the City of Fayetteville is responsible to make sure that the
voucher is complete and legible The City of Fayetteville is also responsible lin
making sure that the card presented is not expired and that the person signing the
voucher is an Authorized Uscr. If imprinted and hand written amounts on
invoices do not agree the lesser amount shall be presumed to bc correct. City of
Fayetteville shall make a manual imprint of all cards electronically processed but
requiring that the card number bc entered manually, in ordcr to prose That the
card was present at the time of sale. "Promptly.' means. in the case of POS
transmissions. batches should be suhrnitted at least once per day and by 11:00
PM Central 'time but in no case any Icss frequently than once every 72 hours.
and in the case of manually prepared vouchers. weekly, but not later than ten
days after transaction date City of Fayetteville must keep copies of vouchers
and summaries fn a period of seven (7) years and supply Avlucl with duplicates
if requested.
4. Upon receipt from City of Fayetteville of a properly prepared voucher -
together with any necessary summaries thereof on forms prescribed by Avfucl.
Avfuel shall remit to City of Fayetteville or. as Avfuel may elect. credit City of
Fayetteville's fuel purchase account with Avfuel. in an amount equal to the total
face amount of all such vouchers less such discounts as applicable according to
Av fuel's then current ARDS or the Honor All discount schedule. and any lees for
AVTRII' point awards.
5. City of Fayetteville acknowledges receipt of: and agrees to observe. Avfuel's
current instructions fur recording and processing credit transactions. Avfuel
reserves the right to amend any and all instmctions and to add new instructions
from time to time. and City of Fayetteville agrees to be bound by all such
amendments and new instructions. Avfuel also reserves the right to issue new or
revised firms. POS equipment. software and imprintcrs from time to time. and to
issue instructions regarding their use to be effective upon five (5) days prior
written notice.
6. City of Fayetteville shall be solely liable and responsible for remittance of all
laces to the proper authorities regardless of svhether charged to purchaser. Avfuel
docs nut assume responsibility for the payment of any tax applicable to sales or
other transactions resulting in credit card accounts receivable and City of
Faycttcville shall defend. indemnify and hold harmless Avfuel from any such
claims.
7. Without limiting the generality of other provisions of this Agreement
pertaining 10 charge hacks, it is specifically understood and agreed that Avfucl
may decline to accept or. if accepted. may subsequently charge back to City of
Fayetteville any voucher:
7.1. Whcrc any of the required information is omitted or illegible:
7.2. 'That is imprinted or processed with an expired credit card:
7.3. Covering a purchase not authorized by the cardholder or involving fraud or
any misuse of a credit card by the purchaser with or without City of Fayetteville's
knowledge.
7.4. Covering a transaction that has not bccn authorized by Avfucl or
docs not carry a valid authorization code:
7.5. Covering a transaction or series of related transactions (constituting in the
reasonable opinion of Avfuel a single sale transaction) the aggregate face amount
of that exceeds any of the single sale limitations to which the panics hereto may
agree:
7.6. That becomes the subject of a dispute between City of Fayetteville and
purchaser.
7.7. Whcrc the Authorized Ilscr has not received his copy of the voucher.
7.g. For which City of Fayetteville has received or will receive any payment or
reimbursement from any person other Than Avfuel.
7 9. Whcrc City of Fayclteville has granted any right of ownership or security
interest to any person other than Avfuel unless thc invoice is accompanied by a
written waiver of such interest.
Page 5 of 8
1110 A.iation fimI Supply Agreement
7 10. Presented by City of Fayetteville to Avfucl more than ten (10) days allcr
the transaction date.
7.1 I. If the transaction occurred alter the dale of expiration or Termination
of this Agreement.
7.12. Created by any person other than City of Fayetteville. or in any transaction
other than a transaction in which City of Fayetteville has sold merchandise or
services to a purchaser presenting his credit card for use in payment therefor;
7.13. For Honor All Iransaclions. bearing a billing address for the cardholder
or Authorized (Jser that is outside the territorial limits of the United States or
the Dominion of Canada:
7.14. Representing Ilonor All transactions not paid by the cardholder within
ninety (90) days after assignment to Avfuel:
7.15, 'that am charged back to Avfuel by a card issuer for any reason at all; or
7.16. That in any other manner docs not conform to This Agreement or with
Avfuefs instructions for recording and processing credit card transactions.
8. In the event that a charge hack exceeds the credit balance in City of
Fayetteville's fuel purchase account then carried by Avfuel. City of Fayetteville
agrees to pay such amounts within three (3) days after notice that such amounts
arc due Upon reimbursement. title to the subject voucher and all indebtedness
represented thereby shall pass to City. of Fayetteville. If any funds come into
Avfuel's possession for any voucher that has previously been charged back to
City of Fayetteville. Avfuel will promptly credit the full amount thereof to City
of Fayetteville's account. Avlucl's charge back rights and rights of recourse
against City of Fayetteville shall survive the termination of this Agreement.
9. Cash advances may not he charged on any card. Lessons. aircraft rental.
chancrs. and aircraft pans and accessories not incorporated in repairs or mounted
upon the aircraft may not bc charged under thc Honor All program. A single sale
to any one purchaser resulting in one or more Than one credit card voucher shall
be specifically limited to quantities of fuel and lubricants not greater Than the
useful capacity of the aircraft. and shall only include fuels from stocks delivered
by and purchased from Avfuel.
10. From time to time. Avfuel will send City of Fayetteville a Credit Card
Rcminanec Summary for City. of Fayetteville's inlbmtaion showing in such detail
as Avfuel may deem appropriate thc transactions and amounts That have been
credited to City of Fayetteville's account or paid to City of Fayetteville during the
period since the last rcporl. The failure of Avfuel in furnish any such Report shall
not relieve City of Fayetteville o1' any obligations hereunder. City of Fayetteville
agrees to review all such Reports promptly after receipt. In any event. City of
Fayetteville shall be solely responsible for making sure that it has received proper
payment for cach transaction submitted. City of Fayetteville shall have forty -live
days (45) days from the date of a transaction to pmvidc Avfuel Notice that the
Transaction has not boon properly accounted for or Ihnt payment has not been
received If no such notice is given. such transaction shall he conclusively
presumed to have been settled and closed.
I I. Avfuel reserves the right to amend. suspend. or terminate the program at any
line City. of Fayetteville may withdraw from This Program upon 60 days Notice
to Avfuel. See Section 14 of the General Terns and Conditions regarding
Notices. Termination of City of Fayetteville's panicipalion in this Program shall
not he construed as terminating the Agreement or City of Faydlnvillc's
panicipalion in any other Program.
CONTRACT 1('E.?- DEALER PROGRA%I:
IF CITY OF FAYETTE VI1.LE. HAS ELECTED TO PARTICIPATE IN
AYFUEL'S CONTRACF FUEL DEALER PROGRAM, THE
FOLLOWING WILL APPLY
1. City of Fayetteville has been invited and has elected to panicipale in Avfucl's
Contract Fuel Dealer Program (the "CFD Program"). Accordingly. City of
Fayetteville agrees to sell and deliver to clients who participate in Avfucl's
Contract Fuel Program (the CFCs" or a CFC' as the context may require)
aviation fuel supplied by Avfucl and other products and services supplied by the
City of Fayetteville. A CFC is a person or entity that has executed a Contract
Fuel User's Agreement with Avfuel or that is specifically authorized in writing.
in accordance with authorization procedures established from lime to time by
Avlucl to purchase aviation fuel and other products and services. The City of
Fayetteville will secure authorization from Avfuel before completing a sale to a
Rev 1/10103
CFC and the failure to obt such authorization may result in Av fuel's dishonor
of the invoice for that sale.
2. Subject to agreement between City of Fayetteville and Avfuel. Products
supplied hereunder shall be supplied from tither Avfuel inventory on site nr from
City of Fayetteville inventory. If. as a convenience to City of Fayetteville.
Avfuel maintains inventory at City of Fayetteville's facility then City of
Fayetteville agrees to the following: a) City' of Fayetteville shall measure
Avfuel's inventory and reconcile that inventory at least monthly'. Reconciliation
reports. in a form satisfactory. to Avfuel. shall bc delivered to Avfuel no later
than the 5" day following the end of each month. h) Gains and losses shall be
allocated proportionally to the panics sharing the storage facility baud on
receipts of fuel during the month and losses shall be limited to no more than '/.
of total receipts for per annum. Book inventory shall he adjusted to coincide
with actual inventory each month. c) Unless thc Products are contaminated by
an act or omission of Dealer. Avfuel will be liable if the Products do not conform
to specifications. If the Products arc supplied from the City of Fayetteville's
inventory. the City of Fayetteville will be liable if the Products do not conform to
specifications. d) City of Fayetteville shall maintain Avfucl's inventory level in
accordance with Avfucl's guidelines and shall specify when ordering fuel
whether that fuel is for City of Fayetteville's or Avfuel-s inventory (which is
subject to approval by Avfuel).
3. Under the CFU Program. all aviation fuel delivered by the City of Fayetteville
to a CFC will bc deemed sold by Avfuel and will be al the prices and terms
independently established between Avfuel and the CFC If Avfuel maintains an
inventory of aviation fuel at the City of Fayetteville's facilities. Nen aviation fuel
supplied by the City of Faycttcville to CFCs will be drawn from Avfucl's
inventory. If Avfuel dues not maintain an inventory of aviation fuel al the City
of Fayetteville's facilities, then aviation fuel supplied to a CFC is drawn from the
City of Fayetteville's inventory and Avfuel will account fur that aviation fuel by
issuing a credit to the City of Fayetteville equal to the City of Fayetteville's cost
for that aviation fuel. including applicable taxa. based upon thc City of
Fayetteville's cost for the last load of aviation furl purchased from Avfuel prior
to thc date of supply to the CFC.
4. The charges for all aviation fuel supplied to the CFC will be payable solely to
Avfuel. Avfuel will be responsible for collecting and remitting any taxa
imposed thereon by any local. state or federal taxing authority. Avfuel will
invoice and collect those charges and taxes from the CFC
5. In all sales of aviation fuel drawn from Avfuel's inventory, title to that
aviation fuel will be retained by Avfuel until the point in time that thc aviation
fuel enters into thc aircraft of the CFC, at which point in time title will pass to
the CFC In all sales of aviation fuel drawn from City of Fayetteville's
inventory. title to that aviation fuel will he retained by the City of Fayetteville
until the point in time that the aviation fuel enters into the aircraft of the CFC. al
which point in time tide will pass instantaneously first to Avfuel and then to the
CFC. The risk of loss or contamination of aviation fuel will be home at each
point in Time by the party who or which holds title to that aviation fuel at that
point in time. 11 while Avfuel holds tide. any aviation fuel is lost or
contaminated as a result of thc acts or omissions of the City of Fayetteville, then
the City of Fayetteville will be liable to Avfuel Thr that loss or contamination.
6. If the City of Fayetteville provides any services or products other than
aviation fuel 10 the CFC for which a fee is charged. such other products and
services will be deemed sold by the City of Fayetteville and will be at the City of
Fayettevillds normally' established rates Such other products may include,
without limitation. lubricants. sparc parts. food and other amenities. Such other
services may include. without limitation. flowage fees. tie -down services. into -
wing services. catering services and similar services that expedite deliveries and
facilitate arrangements for the CFC. No cash advances will be permitted as
"other products or services". The City of Fayetteville will supply all such other
products or services as an independent contractor to the CFC and not as an agent
or a subcontractor of Avfuel.
7. All other products and services that are supplied by City of Fayetteville to
CFCs will he provided in accordance with procedures and quality standards that
are commercially reasonable and that comply with all legal requirements in the
jurisdiction where the City of Fayetteville's facilities are located City of
Fayetteville will be solely liable if such other products and services do not
conform to such standards. procedures or requirements
8. The charges for all other products and services supplied by the City of
Fayetteville to the CFC will be payable solely to the City of Fayetteville. The
City of Fayetteville will be responsible for collecting and remitting any taxes
imposed thereon by any local. stale or federal taring authority. City of
Fayetteville may directly invoice and collect such charges from the CFC'.
Page 6 of 8
Fti(1 Aviation Fuel Supply Agreement
•
Alternatively, at the City of Fayetteville's option, City of Fayetteville may assign
to Avfuel for collation the account receivable from the CFC for othcr products
and services supplied by the City of Fayetteville (a "CFC Receivable") If the
City of Fayetteville assigns a CFC Receivable to Avfuel. then Avfuel will issue a
credit to the City of Fayetteville's account for the amount of that CFC
Receivable and Avfucl will thereafter invoice, collect and retain those cturges
fmm the CFC.
9. Any fees for any services supplied by the City of Fayetteville in the delivery
of aviation fuel to a CFC, including. without limitation any flowage fees or into -
wing fca, will bc carred by the City of Fayetteville only after it has completed
delivery of the entire bad of aviation fuel into the aircraft of the CFC and title to
that aviation fuel has passed to the CFC. Initial into -wing fees are established in
the Special Terms and Conditions and City of Fayetteville may change (hose fees
upon seven (7) days written notice to Avfuel.
10. City of Fayetteville will generate a written record (a "Ticket") of all aviation
fuel supplied to a CFC at the City of Fayetteville's facility. Each Ticket will
include the following information the CFC's name; the authorization number,
pilot's name; aircraft registration number, (light or ID number provided by the
CFC if applicable, transaction date(s); and type and quantity of fuel products
provided, as measured in U.S. gallons. In addition, if the City of Fayetteville
assigns to Avfuel the CFC Receivable for other products and services supplied
by the City of Fayetteville to the CFC. the City of Fayetteville will incltdc in the
Ticket thc type and quantity of such other products or services and the charges
payable by the CFC for such other products or services. Any charges for such
other products or services must be separately stated and clearly identified as fees
charged by the City of Fayetteville that are separate from and independent of the
amounts charged by Avfucl for aviation fuel. The pilot or other responsible
representative of the CFC shall sign and be given a copy of the completed
Ticket.
11. The Ticket (or all information required to be shown on the Ticket) for each
sale to a CFC shall bc delivered to Avfuel by POS Transmission or facsimile
within twenty-four (24) hours following the completion of that sale The original
Tickets shall be kept on file by City of Fayetteville for a period of five (5) years
from the invoice date and will bc scnt to Avfuel upon request. Avfuel will from
time to time provide City of Fayetteville with instructions for processing these
transactions and may provide the forms for doing so. Avfuel reserves the right to
change these procedures upon seven (7) days written notice to City of
Fayetteville.
12. Thc total amount duc with respect to each Ticket shall be paid or credited to
City of Fayetteville's by Avfuel within 10 days following Avfuel's receipt of the
Ticket.
13. Except as provided herein. all Tickets will be accepted by Avfuel without
recourse. The exceptions art: a) City of Fayetteville warrants the validity of all
charges. and any charge that is disputed by the CFC, correctly or incorrectly, on
grounds that thc charge is invalid or inaccurate or that the aviation fuel, products
or services supplied were unsatisfactory may be charged back to City of
Fayetteville at Avfuel's option; b) clangs not previously authorized by Avfuel
may be charged hack to City of Fayetteville at Avfuel's option; and c) any Ticket
that is incomplete, illegible. or is otherwise not prepared in accordance with
Avfuel's processing instructions may be charged back to City of Fayetteville at
Avfucfs option.
14. Avfuel reserves thc right to amend, suspend. or terminate the CFD Program
at any time. City of Fayetteville may withdraw from the CFD Program at any
time upon 60 days Notice to Avfuel. Sec Section 14 of the General Term and
Conditions regarding Notices. Termination of City of Fayetteville's participation
in this Program shall not be construed as laminating the Agreement or City of
Fayetteville's participation in any other Pmgnm.
AVSURANCE PRIMARY COMMERCIAL INSURANCE PROGRAM:
JF CITY OF FAYETTEVILLE HAS ELECTED TO PARTICIPATE IN
TIIE AVSURANCE PRIMARY COMMERCIAL INSURANCE
PROGRAM. THE FOLLOWING WILL APPLY
1. City of Fayetteville has been invited to, and has elected to, participate in the
Avsunnce Primary Commercial Insurance Program.
2. City of Fayetteville agrees to file an application and request for a quote for all
insurance policies related to its aviation business. All pnce quotes from
Avsunncc contain Avsurancc proprietary information, arc confidential. and may
not be disclosed to any person other than employees and agents of City of
Rcv 7/10 03
•
Fayetteville with a bora fide need to have such information and that have signed
a non -disclosure agreement that is satisfactory to Avsunncc.
3. City of Fayetteville may accept or reject any quote for an individual policy.
and the acceptance of any specific quote shall not be conditioned on the
acceptance of any other quote.
4. Upon City of Fayetteville's acceptance, Avsunncc will bind the coverage and
have the policy issued in due course.
5. Avfuel reserves the right to amend, suspend, or temtinatc thc program at any
time. Terni nal on of this Program shall not be construed as termnatng the
Agreement or City of Fayetteville's participation in any other Program.
EOUIPMENT LEASE:
IF CITY OF FAYETTEVIJ I.E HAS ELECTED TO PARTICIPATE IN
AVFUEL'S EOUI PM ENT LEASING PROGRAM. THE FOLLOWING
WILL APPLY
1. City of Fayetteville has elected to participate in Avfuel's Equipment Lease
Program. Accordingly, Avfucl, either for its own account or through one of its
subsidiaries, agrees to deliver and least the equipment identified in the Special
Terms and Conditions (the "Equipment") at the lease rates shown in the Special
Terms and Conditions to City of Fayetteville for its sole use. All additional
equipment or replacement equipment delivered to City of Fayetteville but not
listed in the Special Terms and Conditions shall also constitute Equipment
subject to the provisions of this section. For example. City of Fayetteville may
lease POS equipment from Avfucl al the then current lease price. City of
Fayetteville hereby agrees to pay Avfucl in advance the monthly least payments
prorated for any partial month. Avfucl may increase the rent during the tarn of
the Lease upon 30 days written notice. City of Fayetteville shall be permitted to
notify Avfuel within the first 15 days of that notice period of its intention to
terminate the lease effective on the date that the increase goer into effect. If
Avfucl rescinds the rate increase, the lease shall continue in effect at the then
current rata. If it does not rescind the increase, the lease shall expire on the date
the increase gar into effect. Unless otherwise agreed, the tens of the lease of
each item of Equipment (a "Lease") shall conapurd to the term of this
Agreement.
2. City of Fayetteville shall inspect the Equipment and shall make a written note
as to any defects that are observed. A copy of all such notes shall be faxed to
Avfuel within fony eight (48) hours of delivery. Upon termination of a Lease,
City of Fayetteville shall return the Equipment, freight prepaid to Avfucl's place
of business in Ann Arbor, Michigan in as good condition as when City of
Fayetteville received it, normal wear and tear accepted. Failure to return the
Equipment shall be deemed a breach of this Agreement and City of Fayetteville
will bc billed for necessary repairs and the replacement of missing equipment.
3. Avfucl warrants that it has all necessary rights to lease said Equipment to City
of Fayetteville. Further, the panics agree that as between themselves. Avfucl has
title to thc Equipment and City of Fayetteville shall keep the Equipment free of
liens and shall not do or prnnit anything to be dont that will prejudice the title of
Avfucl, or it's rights in the Equipment. Each item of Equipment shall bear a
legend denoting it as the property of Avfucl and City of Fayetteville shall not
remove or deface that legend under any circumstances. City of Fayetteville also
agrees and understands that Avfucl may file such evidence of its ownership of
the equipment as may be necessary in the state where thc equipment is located.
AVFUEL MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED,
REGARDING DEFECTS IN MATERIAL, WORKMANSHIP, DESIGN,
CAPACITY, MERCHANTABILITY OR FITNESS OF T11E EQUIPMENT
FOR ANY PURPOSE, OR WHICH EXTEND BEYOND THE
DESCRIPTION OF THE EQUIPMENT THAT APPEARS IN T11E
SPECIAL TERMS AND CONDITIONS.
4. Any of thc Equipment that is used to store or transport Products shall be used
solely for storing or transposing Products supplied to City of Fayetteville under
this Agreement. The Equipment shall not be moved from the facility to which it
was delivered nor operated on any public mad without the prior written consent
of Avfuel. City of Fayetteville will comply with all laws, onlinanca and
regulations applicable to the possession, operation or use of thc Equipment and
will demonstrate compliance upon request.
5. Thc maintenance obligations with regard to the Equipment arc as follows.
5.1. Except as set funh in Section 5.2 below, City of Fayetteville will maintain
the Equipment in as good a condition as it was on thc day of delivery. normal
Page 7 of 8
FRO Avialion Fuel Supply Agreement
wear and leu excepted. City of Fayetteville shall. a sole expense. provide all
preventative maintenance (including but not limited to lubrication. oil and filter
changes, ctc.). repairs. and replacement pans as arc necessary to preserve the
Equipment in good operating condition and in compliance and in conformity
with all laws. rules, regulation. and industry standards which are applicable to
the operation of the Equipment. City of Fayetteville shall also be responsible for
all tire Maintenance. repair. and replacement. CHANCING A TIRE ON A
REFIIELER TRUCK IS VERY DANGEROUS AND MUST NOT BE
ATI'F>IPTED BY tiNTRA IN En PERSONNEL_ CITY OF
FA\ETTEVILLE AGREES T'1LYr IT WILL PERM TT TIRES TO BE
CHANCED ONI.\' BY AN OUTSIDE CONTRACTOR WIIO IS
PROFESSIONALLY 'TRAINED TO 1)0 SUCII WORK. City of Fayetteville
shall keep complete and accurate maintenance records and Avfuel is entitled to
inspect the Equipment and the maintenance records al any time during regular
business hours. Al Avfuel's option. any iteral of repair or maintenance that
would be the responsibility of City of Fayetteville may he performed by Avfuel
and billed back to City of Fayetteville as additional rent. City of Fayetteville
shall not make any alterations or modifications to the Equipment of any kind
including but not limited to painting. mounting of radios or antennas. applying
decals or lettering without the prior express written consent of Av foci.
5 2 Avfuel shall be responsible for the following relucicr truck repairs when. in
its opinion. repair is necessary: overhauls or replacement of the engine.
transmission. differential. or belly valve. Avfuel shall be permitted access to the
Equipment at any reasonable time in order to perform the repairs and
modifications. which arc its obligation hereunder. Repairs and maintenance to
be performed by Avfuel shall he completed within a reasonable time after it
learns of the need for such repairs Avfucl assumes no responsibility for loss of
use or any other items of ancillary damage. which may be caused by. or result to
City of Fayetteville by reason of the fad that the Equipment becomes inoperable.
If any such repair or maintenance is required as the result of intentional conduct,
negligence. or failure to perfomt repair or maintenance on the pan of City of
Fayetteville or any of City of Faceueville's agents or employees. City of
Fayetteville shall he liable Ibr all costs associated with performing such repairs
and/or maintenance
6. City of Fayetteville shall he responsible for all Federal, State. and Local taxes.
fees. etc. that arc assessed on the use or value of the Leased !Equipment.
including but not limited to. personal property. sales. and use taxes.
7. City of Fayetteville agrees to indemnify and hold Avfuel and/or the owner of
the Equipment harmless from and against any and all claims. liabilities. losses.
expenses (including altomey's Ices(. obligations and causes of action for injury to
or death of any and all persons. or for damage 10 or destruction of any or all
propcny arising out of or resulting from the condition. existence. use or
maintenance of the Equipment
Rev 7/10/03
Page 8 of 8
•
• •
SECOND ADDENDUM
to the
AVIATION FUEL SUPPLY AGREEMENT
between
AVFUEL CORPORATION
And
CITY OF FAYETTEVILLE, AR
The following is incorporated and made part of the above named
agreement with a reference date of December 7, 2004.
The provisions referring to Promissory Note and Financing
Agreement and all references to those terms throughout the Agreement are
deleted to be replaced by the Exclusive Fuel Purchase Incentive Agreement
as stated below.
EXCLUSIVE FUEL PURCHASE INCENTIVE AGREEMENT
In consideration for purchasing or ensuring that all Aviation Fuel (AV
Gas and Jet Fuel) sold at the Fayetteville Municipal Airport will be
purchased from Avfuel Corporation, the City of Fayetteville will receive as
part of this agreement, $6,000.00 for the purchase of the FBO Manager
software or comparable software, and $6,000.00 for the upgrades to the
Fayetteville Municipal Airport Fuel Storage Area to include: inventory
management systems, valves, pumps, etc.
If the City of Fayetteville decides not to continue its exclusive use of
aviation fuel purchased from Avfuel Corporation at the Fayetteville
Municipal Airport prior to sixty (60) months from the beginning of this
contract, the City shall immediately pay $200.00 times the number of
months remaining in the sixty (60) month period remaining in this
incentive agreement to Avfuel Corporation Five years after. the
• •
beginning of this contract, the City of Fayetteville shall own the software
and improvements with no further financial obligations to Avfuel
Corporation.
AVFUEL CORPORATION CITY OF FAYETTEVILLE, AR
By: -1'021'Chtli N(t)I By:
MARK HAYNES, V.P. D
Signed' Signed:
Date: t2-11/ QQQDate:
ATTEST:
SONDRA SMITH, City Clerk
NAME OF FILE:
CROSS REFERENCE:
Item #
Date
4
Resolution No. 201-04
w/agreement
Document
•
1
11/18/04
memo to mayor & City Council
2
draft resolution
3
draft agreement
4
memo to mayor & City Council
5
Staff Review Form
6
memo to mayor & City Council
7
draft addendum
8
email to Boudreaux
g
email to Boudreaux
10
email to Boudreaux
11
email to Boudreaux
12
memo to Ray Boudreaux
13
14
15
16
NOTES:
•
City Council Melt of: December 7, 2004 / L/ 7 /o N
Agenda Item Number: oto
CITY COUNCIL AGENDA MEMO
TO: Mayor and CiLy Council
THRU: Staff/Contract Review Committee
FROM: Ray M. Boudreaux, Director, Aviation and Economic Development
DATE: November 18, 2004
SUBJECT: Approval of Fuel Service Contract with AvFuel Corporation
AFue/ C'orp/4bl
cwtq'ivh A4/
RECOMMENDATION: Approve the contract with AvFuel Corporation and forward for
signature by the Mayor
BACKGROUND: The first FBO Fuel Service Contract since the airlines relocated to XNA
was with AvFuel Corporation. Their contract expired at the end of October 2004. An RFP
was issued and five providers responded. A selection committee was formed and after a
thorough review and analysis it was determined that AvFuel would continue as the fuel
provider.
DISCUSSION: The City currently operates the fuel and line service fixed base operation
(FBO). The contractor provides service, advertising credit, service trucks, credit card
processing, fuel, training and other considerations to help FBO's increase sales and provide
customer service. Local customers are also customers of the fuel service provider. AvFuel
remains our provider by providing good fuel pricing, good service, new computer software and
interface, training, fuel farm upgrades and no cost lease trucks for the first 18 months of the
contract. Should the airport staff and Airport Board recommend to the City Council and Mayor
to contract out the fuel and line service FBO, it would not affect this contract.
BUDGET IMPACT: The budget impact remains the same. The Airport purchases fuel
from AvFuel for resale to aircraft customers. Other services provided by the company are
incidental and necessary to the sale of fuel.
Attachments: Staff Review Form
Contract
Aviation and Economic Development Department
Fayetteville Municipal Airpon, Drake Field
4500 South School Avenue, Suite F
Fayetteville, Arkansas 72701
Ray M Boudreaux, Dircclor
• •
RESOLUTION NO.
A RESOLUTION APPROVING A FUEL SERVICES CONTRACT
WITH AVFUEL CORPORATION TO PROVIDE AVIATION
FUEL, REFUELER TRUCKS, AND OTHER SERVICES TO THE
FAYE"ITEVILLE MUNICIPAL AIRPORT.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEVILLE, ARKANSAS:
Section 1. That the City Council hereby approves a Fuel Services Contza t
with AvFuel Corporation to provide aviation fuel, refueler trucks, an /dts r
services to the Fayetteville Municipal Airport. A copy of the dg//�'u2I Servics
Contract is attached hereto marked Exhibit "A" and ma,a:.axt reof.
PASSED and APPROVED this 7th day of December 200
By
PPROVE1
•y,
SON D RA SMITH, City Clerk
i
DY, Mayor
• •
FIXED BASE OPERATOR
AVIATION FUEL SUPPLY AGREEMENT
SPECIAL TERMS AND CONDITIONS
NAVFUEL
CORPORATION
AVFUEL CORPORATION
FIXED BASE OPERATOR
AVIATION FUEL SUPPLY AGREEMENT
Reference Date: November 1, 2004 Effective Date: November 1, 2004
SUMMARY
This Agreement is between Avfuel Corporation and its affiliates and subsidiaries all of which have principal offices at 47 West Ellsworth Road, Ann
Arbor, MI 48108 USA, hereinafter referred to, individually or collectively as "Avfuel", and City of Fayetteville
having its principal office at (Street address only) 113 West Mountain Street , hereinafter called "Customer", collectively called "the Parties", and is
effective on the Effective Date or, if no Effective Date is specified then on the Reference Date noted above.
THIS IS AN INTEGRATED AGREEMENT CONSISTING OF SEVERAL PARTS, ALL OF WHICH SHALL BE READ TOGETHER
AND INTERPRETED AS ONE AGREEMENT. The parts shall include this Summary, the Special Terms and Conditions, and the General Terms
and Conditions. In the event of any inconsistencies between the Special Terris and Conditions and the General Terms and Conditions, the Special
Terms and Conditions shall govern. Avfuel offers other programs that it believes are of benefit to Customer. Customer chooses to participate in
those programs that are checked below and agrees that the applicable provisions of the Special and General Terms and Conditions govern those
programs. Additions or deletions to this agreement are governed by the Changes Provision set forth in Section 17 of the General Terms and
Conditions.
Applicable Certificates of Insurance are attached hereto, Insurance Company Name
X Customer Credit Program
X Brand Program
X AVTRIP Program
X Credit and Charge Cards Acceptance Program
X Contract Fuel Dealer Program
Avsurance Primary Commercial Insurance Program
CUSTOMER FEIN:
STATE ID NUMBER:
FOR AVFUEL CORPORATION:
By:
Mark Hames
Title:
Print Name
X Equipment Lease Agreement
X Pricing Addendum
X Attachment C
X Promissory Note & Financing Agreement
TYPE OF BUSINESS:
(i.e. C -corp, S -corp, Partnership LLC Sole Prop, or other)
STATE OF INCORPORATION:
FOR:
By:
(Signature)
(Print Name)
Vice President, Sales Title:
(Print Title)
11,c..a,I�_eigned he .
By:
Signature
By:
Name Printed
Social Security Number
Signature
• •
FIXED BASE OPERATOR
AVIATION FUEL SUPPLY AGREEMENT
SPECIAL TERMS AND CONDITIONS
Name Printed Social Security Number
CUSTOMER NAME: City ofFaveneville
BILLING ADDRESS:
Of different than street address)
CITY
DELIVERY ADDRESS: 4500 South School Street
(i%different than street address)
STATE ZIPCODE
CITY Favettcvllle STATE: AR ZIPCODE 72701.
AIRPORT ID (IATA CODE):
PRODUCT (s): 1Jet-A x Jet -A with Anti -ice xAvgas/IOOLL 1Other
PAYMENT TERMS: Net 301Yan
EQUIPMENT LEASED:
Description SN or VIN Lease Rate
1991 3000 Gallon Ford
2000 750 Gai n_Isun
A07138 5 1.050.00
004822 $ 750.00
CONTRACT FUEL DEALER:
Rate
Airport Flowage Fee: YES X NO S/g (i.e. 50.03)
Storage Fee: YES X NO c/g
into wing Fee: Established Prices On File
Fuel Type Gallons from/to
Rate
OTHER SPECIAL TERMS AND CONDITIONS:_Itthe City of Fayetteville should cease operation or sell the FDO, then the City must give Avfuel 60
days written notice of termination of the contract
FBO Aviation Fuel Supply Agreement
AVIATION FUEL SUPPLY AGREEMENT
GE.NERAI. TERMS AND CONDITIONS
1. PURCHASE AND SALE: Subject to the terms and conditions contained
herein. throughout the entire term of this Agreement, Avfuel agrees to sell and
deliver. and City of Fayetteville agrees to purchase and pay for, the City of
Fayetteville's entire requirements for Products and all products to bc handled,
stored, used, distributed or sold by City of Fayetteville or its affiliates at each
airport represented by the Delivery Addresses listed in the Special Tams and
Conditions.. If, at any time during the term of the AFSA City of Fayetteville, or
any entity controlled by or in common control with City of Fayetteville, operates
any other facility at the Airport that sells aviation fuels (a 'Supplemental FDO"),
then City of Fayetteville will, or will cause such other entity to, enter into a new
AVIATION FUEL SUPPLY AGREEMENT with Avfuel (on the same terms and
for the same duration as thc AFSA) for the supply of 100% of the requirements
of the Supplemental FBO for aviation fuel. Cm OF FAYETrEVILLE represents
and warrants that all products and services purchased hereunder will be for the
purpose of conducting its business. Avfuel has relied on this representation in
entering into this Agreement
2. TERM: the initial term of this Agreement is five (5) years, beginning on the
Effective Date specified in the Summary. The tens shall bc automatically
renewed for successive three (3) year teres until one Party delivers a Notice to
the other Party of its intent to terminate at the end of the then current term. Such
notice shall be delivered at least ninety (90) but not more than one hundred
twenty (120) days prior to the expiration of the current term.
3. PRICE AND PAYMENT:
3.1. Unless otherwise agreed in writing the price per gallon for Products
delivered to City of Fayetteville shall bc as established by Avfuel from time to
time in its discretion based upon market and other conditions that it deems
pertinent based on the date and time that Avfuel loads the Products into delivery
trucks Prices shall be F.O.B. the Delivery Address(es) and shall be exclusive of
all taxes, fees. surcharges and other charges.
3.2. Unless otherwise agreed in writing or otherwise required by the state law
where the Product is delivered. the standard unit of measurement of quantities of
Products purchased and delivered shall be the Net Gallon. The term 'Net
Gallon" shall mean the volumetric measurement. in U.S. gallons. of a Product
actually loaded and measured at the point of shipment, adjusted to the number of
U.S. gallons that would have been loaded at a temperature of sixty degrees
Fahrenheit (60°E). The conversion ratio shall be from thc current American
Society for Testing and Materials ("ASTM") IP Petroleum Measurement Tables.
3.3. Unless otherwise agreed in writing by the Parties, City of Fayetteville
agrees to pay in advance by bank wire transfer for all Products purchased
hereunder. Failure to pay in advance shall be construed as a credit transaction
and shall be subject to thc Tcrms and Conditions of the Customer Credit
Program set forth below.
4. TAXES AND OTHER CHARGES:
4.1. City of Fayetteville shall pay all taxes. assessments, fees and other charges
(the "Taxes") which are imposed by any federal, state or local governmental
agency or by any airport authority (collectively, the "Taxing Authorities") based
upon the delivery. sale. importation. inspection. storage or use of the Products
purchased by or leased to City of Fayetteville, excepting Taxes which arc
imposed upon Avfuel based upon its net income or revenues.
4.2. If the Taxing Authorities collect the Taxes directly from City of
Fayetteville. then City of Fayetteville shall pay all such Taxes on or before their
due data. If the Taxing Authorities require that Avfuel collect the Taxes from
City of Fayetteville at the time of sale, Avfuel will use its best efforts to include
all such Taxes in its invoices to City of Fayetteville and City of Fayetteville shall
pay all such invoices on or before their duc dates. (Ln its invoices Avfuel will
identify those Taxes as separate items.) If City of Fayetteville is entitled to an
exemption from any Taxes which the Taxing Authorities require be collected by
Avfuel, then. in order to permit Avfuel not to collect those Taxes, City of
Fayetteville shall obtain and provide to Avfuel current and valid exemption
certificates relating to those Taxes If, subsequent to the issuance of any invoice
the Taxing Authorities or Avfuel advise City of Fayetteville of additional Taxes
payable with respect to the Products covered by that invoice, then City of
Fayetteville shall promptly pay such additional Taxes.
4.3 City of Fayetteville acknowledges that it rennins solely responsible for all
such Taxes. and will indemnify Avfuel against any liability for such Taxes even
Rev 7/10/03
if Avfuel fails for any reason to include any such Taxes in its invoices to City of
Fayetteville. However, Avfuel will indemnify City of Fayetteville against any
late charges, penalties or
other charges that City of Fayetteville incurs if Avfuel's failure to include any
Taxes in its invoice is due to gross negligence or willful misconduct.
4.4. City of Fayetteville's obligation to inderrmify Avfuel shall extend to any
Taxes which arc assessable against City of Fayetteville as a result of any
subsequent change or reinterpretation of the laws relating to those Taxes or any
exemptions from those Taxes and to any Taxes for which an exemption had been
claimed but which ars: subsequently assessed by Taxing Authonties based upon
its rejection of the claimed exemption for the Products or City of Fayetteville.
5. DELIVERY:
5.1. Deliveries shall be made to the Delivery Address(es) listed in the Special
Terms and Conditions. Avfuel or its authorized shipping agent ("Shipping
Agent") shall be provided acccss to City of Fayetteville's storage facilities
during normal business hours, or at such other times as may be approved by City
of Fayetteville's authorized representative, for the purpose of unloading thc
Products. Unless otherwise agreed in writing, the minimum delivery of Jct A
fuel will be a full standard transport tanker load which is equivalent to 7.500
Gross Gallons, and the minimum delivery for Avgas fuel will be a full standard
transport tanker load which is equivalent to 8.500 Gross Gallons. Avfuel
reserves the right to impose a surcharge for deliveries of less than a full tanker
load.
5.2. Delivery shall be into tanks designated by City of Fayetteville. Such
designation shall be construed as a warranty that the designated tanks and
containment areas have been inspcctcd and approved by the appropriate
regulatory agencies. City of Fayetteville shall bc responsible for all unloading
operations including the placement of hoses into the proper storage tanks. City
of Fayetteville shall specifically designate and gauge the available capacity of
the tanks into which the Product shall bc unloaded, and shall bar all
responsibility of spillage or contamination of the Product after it leaves the end
of any properly operating hose provided by Avfuel or its Shipping Agent.
Access to City of Fayetteville's tanks shall be furnished in such a manna that
Avfuel or its Shipping Agent can safely and conveniently reach City of
Fayetteville's storage facility with the hoscs available, and Avfuel or its Shipping
Agent may refuse to complete any delivery which Avfucl or the Shipping Agent
determines, in it sole discretion, cannot be made safely.
5.3. Any claim by City of Fayettcvilk of any discrepancy in the quantity of the
Product delivered shall be effective only if made by written notice delivered to
Avfuel within twenty-four (24) hours after the Product is delivered to City of
Fayetteville. GIVEN THE NATURE OF THE PRODUCTS, TIME IS OF
THE ESSENCE WITII RESPECT TO SUCII CLAIMS AND NO CLAIM
SHALL BE PERMITTED OR EFFECTIVE UNLESS DELIVERED
WITHIN THE SPECIFIED PERIOD.
6. FORCE MAJEURE: Except as provided below, neither Party shall be
responsible for any failure to comply with the terms of this Agreement due to
causes beyond its reasonable control for the period the effects of such causes
continue. These causes shall include but shall not be restricted to: fire, storm,
flood, earthquake, explosion, accident, acts of any local. slate or federal authonty
or agency or of a public enemy, war. rebellion, insurrection, sabotage, epidemic,
quarantine restrictions, labor disputes, transportation embargoes or delays, acts
of God and unavailability of the Product. For purposes of this Agreement, the
term 'unavailable" shall mean that Avfuel, for any reason whasocva. including
but not limited to government action, reduced or allocated fuel supplies, lack of
transportation or the like, is unable to procure and deliver a specific Product on a
commercially reasonable basis within two (2) days of the specific time requested
by City of Fayetteville. In that event, and only to thc extent of such
unavailability, the Parties hereto shall bc relieved of their obligations undo the
applicable provisions of this Agreement. If and as applicable. Avfuel will
comply with any governmental statute or regulation mandating the allocation of
available supplies of Products. The provisions of this Section shall not apply to
the failure of a Party to pay any monetary amounts when due under this
Agreement.
7. LIMITED WARRANTY:
Page 1 of 8
FRO Avution Fuel Supply Agreement
•
7.1. Avfucl warrants that all products delivered pursuant to this agreement,
regardless of whether title transfers at that time. will, at the time of delivery,
conform to the then latest revision of following specifications: Aviation
Gasoline will conform to the ASTM Specification D910; and let Fuel will
conform to the ASTM Specification DI655. Avfuel retains the right to revise the
applicable specifications upon written notice to City of Fayetteville
7.2 THF, LIMITED WARRANTY STATED ABOVE. IS THE ONLY
WARRANTY GIVEN BY AVFUEL REGARDING THE PRODUCTS.
AVFUEI. DISCLAIMS ANY OTHER WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES
OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR
PURPOSE.
7.3. City of Fayetteville shall sample and test each shipment of Product prior to
delivery using industry standard test procedures. If City of Fayetteville
detcmtincs or suspects nonconformity then Avfucl must be immediately
notified, while the Shipping Agent is still present, and the delivery shall not be
completed until either City of Fayetteville accepts the Product, acknowledging
conformity. or Avfuel replaces the Product. City of Fayetteville will permit
Avfucl access to City of Fayetteville's premises and records during normal
business hours and upon four (4) hours' telephonic or written nonce to City of
Fayetteville for purposes of investigating any claim of nonconformity. If it is
determined that the Product is non -conforming, Avfuel's sole obligation shall be
either (1) replacement of the nonconforming Product with conforming Product,
or (2) removal of the non -conforming Product and cancellation of the invoice for
that Product or refund of thc amount paid for that Product, as determined by
Avfuel. Avfucl will be reasonably prompt in its actions hereunder. TIME IS
OF THE ESSENCE AND ANY FAILURE TO FOLLOW THE ABOVE
PROCEDURE SHALL VOID TILE LIMITED WARRANTY.
8. COMPLIANCE WITH LAWS:
R.I. Each Party shall. at all times and in all respects. comply with all federal,
sate, county or municipal laws. ordinances, rules and regulations governing its
actions in the purchase, storage, handling and sale of the Products and all
industry standards pertaining thereto, including those that may contain tetraethyl
lead or lead alkyl. Further, each of the Palsies agree to use its reasonable best
efforts to assist the other Party in corrtplying with such laws, ordinances, rules
and regulations which the other Party may be required to observe in the
performance of its obligations under this Agn.vntint. Each Party reserves the
right to terminate thosc portions of this Agreement governing the purchase of a
Product if thc other Pany violates the provisions of this subsection with respect
to that Product. In such event, the remaining provisions of this Agreement shall
continue in full force and effect.
8.2. Each Pany shall properly instruct its employees. agents and contractors with
regard to compliance with all applicable laws, ordinance, odes, regulations and
standards governing the sale and distribution of the Products that are the subject
of this Agreement.
9. INDEPENDENT STATUS: Each Party shall at all times function as an
independent contractor and not as a subcontractor, employee or other agent of
the other Party. Neither Party shall have the authority to and shall not purport to
make any cornmitments or representations on behalf of the other Party or
otherwise to tike any actions on behalf of the other Party.
10. RECPROCAL INDEMNIFICATION: Except as otherwise provided in
this Agreement, each Party (the 'Indemnifying Party-) agrees to indemnify and
to hold harmless the other party and the officers, directors, employees and agents
of the other party (the "Indemnified Parties-) from and against any and all
clairtts, demands. losses. liabilities, causes of action, costs or expenses (including
attomey's fees) of whatsoever nature which are asserted against or incurred by
any Indemnified Party as a result of the breach by the Indemnifying Party of its
obligations under this Agreement or as a result of any wrongful act or omission
of the Indemnifying Party or of any officers, directors, employees or agents of
the Indemnifying Party. Any amount payable by the Indemnifying Party under
this Section 10 shall be due within ten 00) days after written demand and any
such amount which is not paid when due shall bear interest from the due date to
the date of payment at the rate of 16% per annum (or, if less at thc maximum
rate of interest permitted under the laws of the State in which the Indemnifying
Party has its principal place of business). Without limiting the above provisions,
the obligation of the Indemnifying Party under this Section 10 shall include any
reasonable attorneys fees or other costs incurat by the Indemnified Parties in
enforcing the obligation of indemnity under this Section. Each partys obligation
to indemnify shall survive the termination of this Agreement and shall remain in
full force and effect until the lapse of all applicable statutes of limitations or
Rev 7/10/03
Page 2 of 8
similar time periods within ich an action for indemnity or contribution must
be brought.
I1. BREACH AND TERMINATION:
11.1. Failure of a Party to comply wish the provisions of this Agreement shall
constitute a breach of the Agreement by the non-conplying Party. Except as
otherwise permitted under this Agreement, the non -breaching Party shall provide
Notice of that breach to the other Party in the manner set forth in Section 14
The Notice shall specify the alleged breach and the period within which the
breach must be cured which, except as provided in Section 11/, shall be at least
ten (10) business days. The Party receiving such Notice shall respond thereto in
writing within three (3) business days. If the breach is not cured or the dispute
resolved within the period specified in the Notice, the Party claiming breach, by
further written Notice, at its election, may affirm this Agreement and initiate
appropriate legal actions to require the other Party to remedy that breach or may
immediately terminate this Agreement. In either instance, the Party claiming the
breach may by appropriate legal proceedings seek and secure recovery of any
damages resulting from that breach.
11.2. The provisions of Section 11.1 to the contrary notwithstanding, if the
breach is of the City of Fayetteville's obligation to make a payment to Avfucl
when due. Nen Avfucl may declare all amounts owed to it immediately due and
payable, and Avfucl, in addition to all other rights hereunder, may suspend its
performance or terminate this Agreement forthwith and without giving City of
Fayetteville Notice or the opportunity to cure. Avfucl shall also have the right to
offset any amount that Avfuel then or thereafter owes to City of Fayetteville. to
any guarantor of the City of Fayetteville's obligations under this Agreement or to
any affiliate entity that owns, is owned by or is undo common ownership with
the City of Fayetteville against any amounts owed by City of Fayetteville to
Avfucl City of Fayetteville warrants that it is authonzcd to make this
commitment with respect to amounts owed by Avfucl to such guarantors and
affiliate entities In addition, Avfuel or its agents or employees may. without
further notice and without legal process enter onto any facility of City of
Fayetteville for the purpose of repossessing any item of Equipment or any
personal property of any description owned by Avfuel, and City of Fayetteville
shall use its best efforts to assist Avfuel in such repossession. Pursuit of the
foregoing shall not preclude pursuit of any other remedies provided by law. nor
constitute a waiver of any amount due by City of Fayetteville hereunder or of
any damages accming by reason of the breach of any of thc tents or conditions
contained herein. Aviation fuels on board repossessed Equipment will become
the property of Avfuel, and credited against any amount owed Avfucl by City of
Fayetteville at that days market price.
11.3. The Party claiming a breach may waive that breach by giving Notice to the
other party in the manner set forth in Section 14 below. The waiver of any
breach shall not constitute a waiver of any subsequent breach of the same or any
other term or condition. Any failure of either Party to enforce rights or seek
remedies arising out of any breach by the other Party shall not prejudice or affect
the rights and remedies of that Party in the event of any subsequent breach by the
other Party.
11.4. Except as set forth in Section 11.2 above, any dispute that anses under
this Agreement. pursuant to Section 11.1 above or otherwise. shall be submitted
to a senior officer or other person having the authority to negotiate thc resolution
of such disputes for each Party. Those persons shall attempt, in good faith. to
resolve the dispute. and no action in law or equity shall lie until the process set
forth herein shall have run its course. If the dispute involves the payment of
money, all undisputed amounts shall be paid when due regardless of whether the
undisputed amount is only part of an invoice.
11.5. The exercise of a Party's right to terminate the Agreement as aforesaid or
to seek any other remedy shall not be deemed an election of remedies and shall
be without prejudice to the Terminating Party's rights to seek any other remedy
afforded to it by this Agreement or by law or equity. In any action related to the
enforcement or breach of this Agreement. the prevailing Party shall have the
right to recover its reasonable attorney's fees and costs actually incurred.
12. INSURANCE.:
12.1. Prior to the Effective Date stated in the Summary, City of Fayetteville
shall submit proof that it holds, or, if it does not so hold, shall secure at its cost.
the following insurance and furnish Avfuel a Certificate of Insurance evidencing:
(1) aviation general liability insurance, including products and completed
operations liability, with limits not less than one million dollars (Sl.000,000.00)
combined single limit for bodily injury and property damage; and (2) automobile
liability insurance with limits not less than one million dollars (51,000,000.00)
combined single limit for bodily injury and property damage; (3) workers
FUO Aviation Fuel Supply Agreement
compensation covering all employees of City of Fayetteville and (4) physical
damage coverage covering the value of any leased Equipment. Insurance
politics shall be issued by insurance companies acceptable to Avfuel (whose
acceptance may not be unreasonably withheld), shall name Avfucl, or its
subsidiary, as applicable, as an additional insured and/or loss payee, and shall
provide for at least thirty (30) days' written notice to Avfuel prior to cancellation
or modification. City of Fayetteville shall maintain such policies in full force
and effect throughout the term of this Agreement City of Fayetteville may, if it
choose. apply for this insurance through Avfuel's subsidiary, Avsurancc
Corporation. •
12.2. Avfucl currently maintains an excess aviation products liability policy
under which its qualified customers may he named as additional insureds. For so
long as Avfuel elects to continue to maintain that insurance and permit City of
Fayetteville to be additional insureds, upon the written request of City of
Fayetteville and to the extent that City of Fayetteville qualifies for such
coverage. City of Fayettcvillc shall be added as an additional insured undo that
policy upon payment by City of Fayetteville of any additional premium required
by Avfucl's insurer for such coverage. If Avfucl no longer offers this product
liability insurance program, or the product liability insurance is no longs free to
City of Fayetteville, Avfucl will notify Ciry of Fayetteville with thirty (30) days'
written notice of this change or Avfucl's intcnt to terminate the product liability
insurance program.
13. ASSIGNMENT: City of Fayetteville shall not assign its nghts or delegate
its obligations under this Agreement, in whole or in part, unless with the prior
written consent of Avfucl. which consent will not be unreasonably withheld.
Any transfer of a controlling interest in City of Fayetteville shall be deemed an
assignment requiring the consent of Avfuel.
14. NOTICES: All notices permitted or required under this Agreement shall bc
in writing. Notices by facsimile shall be deemed "delivered" on the date of
confirmed transmission, without error, to the fax number designated in the
Summary. Notices by mail shall be deemed delivered three (3) business days
following the date deposited with the United States Postal Service. certified mail,
return receipt requested, postage prepaid, addressed to the Party at the address of
the principal office. Notices sent by overnight courier shall be effective on the
next business day following deposit with the overnight courier for overnight
delivery with the delivery fee prepaid, addressed to the Party at the address of the
principal once, and with instructions to obtain the signature of the addressee.
15. GOVERNING LAW: This Agreement shall be construed as having been
made in the State of Michigan, and all rights and obligations under it shall be
governed by the laws of the State of Michigan without regard to its Conflict of
Ives's provisions. All litigation arising hereunder shall be brought in the State of
Michigan, and exclusive jurisdiction shall lie with the courts located in
Washtcnaw County. Michigan and each Party hereby submits to the exclusive
jurisdiction of those courts.
16. SEVERABILITY: In the event that any court of competent jurisdiction
shall determine that any provision of this Agreement shall be unenforceable, that
that provision shall be deemed to bc null and void and the remaining provisions
hereof shall remain in full force and effect.
17. ENTIRE AGREEMENT TERMS: This Agreement, including all of its
parts. sets forth the entire agreement between Avfucl and City of Fayetteville
with respect to the subject matter hereof and there are no other terra or
conditions, oral or written, express or implied. relating to or otherwise affecting
such subject natter. No term or condition of this Agreement shall be changed,
supplemented, cancelled or waived unless in writing and signed by both Avfuel
and City of Fayetteville. If Avfuel and City of Fayetteville have, poor to the
effective date, been parties to any other agreement relating directly to the sale of
Products to City of Fayetteville (a "Prior Agreement"), such Prior Agreement,
except for guarantors. shall be superseded as of the effective date and all rights
and obligations between Avfuel and City of Fayetteville with respect to the
supply of Products from and after the effective date shall be governed by the
terra of this Agreement. The terms and conditions of such Prior Agreement
shall, however, remain in full forte and effect with respect to rights and
obligations relating to the supply of Products prior to the effective date and
nothing contained in this Agreement shall bc construed as terminating or
otherwise affecting any such rights or obligations.
CUSTOMER CREDIT PROGRAM.
IN THF EVENT THAT AVFUF.1. CIIOOSFS TO DEI,IVFR GOODS OR
SERVICES THAT HAVE. NOT BF,F,Pi PAID FOR INFULL BY WIRE
TRANSFER PRIOR TO THE TIME OF THAT DELIVERY, AVFUEL
SHALL RE CONSTRUED AS HAVING EXTENDED CREDIT TO CITY
Rev 7/I0/03
Page 3 of8
OF FAYETTEVILLEAND THE FOLLOWING TERMS AND
CONDITIONS SHALL APPI.Y.
1. Credit terns rroy not be used during any period in which the City of Fayetteville
is in default of this Agrmrcnt In addition to the provisions of Section I I of the
General Terms and Conditions, for the specific purposes of this City of Fayeneville
Credit Program the City of Fayetteville will be in default if (1 ) any amount charged
to the City of Fayettevilk's account is not paid in accordance with the agreed upm
payment terns, (2) if and for so long as the City of Fayetteville is in breach of any
of its obligations under any Agreement with Avfucl or any of its subsidiaries; or (3)
if Avfuel determines that there is any misrepresentation or breach of a warranty by
the City of Fayetteville undo or with respect to any Agtv,.,ILnt with Avfuel. Usc
of credit is limited to the amount specified in the Special Tema and Conditions of
this Agreement. No purchase may be nude which would cause the total amount
owed undo this Agreement to exceed that credit limit.
2. Upon termination of this Agreement City of Fayetteville shall have no right to
credit toms for new purchases, but all obligations incurred prior to the termination,
as well as all remedies provided for defauh or breach, shall survive. If Avfuel,
intentionally or unintentionally, permits any putehasa on credit after teanination,
then the terra of this Agreement shall pertain to those charges.
3. Subject to the approval by Avfuel at its offices in Michigan, all purchases by
City of Fayetteville for which Avfuel does not receive payment at or prior to the
time of delivery to City of Fayetteville shall be charged as principal to City of
Fayetteville's account. Avfuel may require City of Fayetteville or City of
Fayetteville's authorized representative, as a condition of delivery or at any time
thereafter. to give receipt for all deliveries in writing and to sign sales slips and
other documents in Avfuels opinion necessary to record or substantiate any or all
transactions resulting in a charge to City of Fayetteville's account.
4. Avfucl shall invoice City of Fayetteville for all Fuel products delivered to
City of Fayetteville or to City of Fayetteville's designees. Invoices shall include
the selling price of the product delivered, taxa, duties, and any other charges as
separate line items. Invoices arc payable on or before that duc date specified in
thc invoice. Unless otherwise determined by Avfucl in its discretion, all
payments received will be applied by Avfuel (subject to collection of remittance
if other than cash) first to interest, if any, accrued on City of Fayetteville's
account, then to the unpaid principal balance owed upon such account in direct
calendar order of due date. City of Fayetteville agrees to pay to Avfuel upon
demand a fee of $50.00 for each chock, draft or other form of remittance that is
not honored by the drawee upon due presentment by Avfucl or its agents. From
time to time, Avfucl may send City of Fayetteville a statement of City of
Fayetteville's account for City of Fayetteville's information showing in summary, or
in such detail as Avfuel may dam appropriate. current transactions Avfuel posted
to City of Fayetteville's account to date thereof, the amount of interest (if any)
whkh has accrued, and the balance owing thereon; however, the failure of Avfuel
to furnish any such statement shall not relieve City of Fayetteville of the obligation
to make payment against invoices when due in accordance with the other tern of
this Agreement City of Fayettcvilk agrees to review all summons promptly after
receipt, and shall have fifteen (15) days from date of receipt to notify Avfuel in
writing of any discrepancies. If no such notice is given, such statement shall he
conclusively presuned correct.
5. In the event that any invoice is not paid in full by thc due dale stated therein,
the unpaid amount of the invoice shall bear interest until paid at the lower of
18% per annum or the highest rate which may lawfully be contracted for,
charged and received according to applicable law for business purchases at the
time of delivery. Notwithstanding anything in this Agreement to the contrary,
City of Fayetteville shall never be obligated to pay and Avfuel shall never bc
mulled to receive any interest upon any indebtedness incurred by City of
Fayetteville pursuant hereto in excess of the maximum contract rate of interest
authorized by applicable law for business purposes. and it is expressly
understood and agreed that if Avfuel shall render any charge for the payment of
usurious interest, such charge shall be automatically and unconditionally reduced
to the maximum non -usurious amount and the excess, if paid, shall be applied as
credit to City of Fayetteville's account. If such application results in a credit
balance in City of Fayetteville's said account, such balance shall be refunded to
City of Fayetteville or applied to the next due amount in such account as City of
Fayetteville shall direct
6. If, at any time during the tin of this Agreement, the financial responsibility
of City of Fayetteville becomes impaired or unsatisfactory to Avfuel, in the sole
judgment of Avfuel, Avfuel, effective immediately upon delivery of Notice to
City of Fayetteville, may require the advance cash payment or other security
satisfactory to Avfuel for any shipment of fuel and shipment may be withheld
until such payment or sccunty is received.
FRO Miauon Fuel Supply Agreement
•
7. For the purpose of secunng a payment of all indebtedness of City of Fayetteville
to Avfuel from tint to time outstanding (including, without limitation, any amounts
duc undo this Agreement or any other agreement or insburrcnt between Avfuel
and thc City of Fayetteville) grants to Avfuel a pumhasc money sccurity interest in
and to all of City of Fayetteville's inventory of aviation fuels and other products of
similar type or description as are purchased from Avfuel, and all accounts, contract
rights and other proceeds from such inventory, whether now owned or hereafter
acquired. City of Fayetteville warrants that the purchase money security intent
granted haein is and shall remain supaior to any other security interests granted by
City of Fayetteville to any other entity. For so long as this Agreement is in effect,
all of City of Fayetteville's invat ory of aviation fuels will be presumed to be
merchandise purchased pursuant to the Agreement and subject to the purchase
rrxmey secunty interest granted by this Agreement City of Fayetteville hereby
authorizes Avfuel w sign and record all financing statements and other instruments
which Avfuel may reasonably require in order to create, perfect and continue in
force said security interest and first pnonty lien. City of Fayetteville authorizes
Avfuel to file a we copy of this Agreement in lieu of any financial statement The
rights and obligations of Avfuel and the City of Fayetteville undo and with respect
to the security interest and first priority lien created by this Section shall be
interpreted in accordance with the Uniform Commercial Code in effect in the state
of the Billing Address of the City of Fayetteville as stated in the Summary.
8. THIS PARAGRAPH APPLIES ONLY TO THOSE PERSONS WHO'S
SIGNATURES APPEAR AS GUARANTORS ON THE SIGNATURE PACE
OF TIIIS AGREEMENT. PERSONS SIGNING AS GUARANTORS SHALL
RE CONSTRUED AS PERSONAL GUARANTORS REGARDLESS OF
ANY OTHER DESIGNATION. In consideration of the extension of credit by
Avfuel to City of Fayetteville. each of the parties signing as Guarantors on the
signature page of this Agreement agrees to guarantee the prompt payment of all
amounts owed to Avfuel by City of Fayetteville whether such amounts are
existing at the time that this Guarantee is signed or are incurred at any time
dunng the lift of this Guarantee. Avfuel may demand payment from a Guarantor
under this Guarantee at any time that it deems itself insecure with respect to any
amount owed by City of Fayetteville. Each Guarantor hereby waives notice of
acceptance of this Guarantee by Avfucl. notice of default by City of Fayetteville,
and all other notices that the Guannwr may otherwise be entitled to receive.
Failure on thc part of Avfuel to give any such notice shall not discharge any
obligation of any Guarantor under this Guarantee. Each Guarantor also hereby
waives any requirement that Avfuel proceed against City of Fayetteville before
making a demand for payment hereunder, and agrees to pay all attomcy's fees
and court costs incurred by Avfuel in the enforcement of its rights hereunder.
This is a continuing Guarantee and shall not be revoked by the death of any
individual party or by the dissolution of any corporate party or any other entity
that is a party hereto, and shall remain in force until Avfucl receives written
notice to extend no further credit to City of Fayetteville on the security of this
Guarantee. Such notice shall not discharge any obligation of any Guarana r as to
any then existing indebtedness or obligation of City of Fayetteville arising out of
a transaction that took place prior to the receipt of such notice, regardless of the
time for determination, maturity, or performance thereof. Each Guarantor agrees
to provide periodic statements of financial condition to Avfuel upon request.
This Guarantee shall survive the termination of this Agreement until all amounts
due Avfuel under this Agreement have been paid in full.
BRAND PROGRAM.
IF CITY OF FAYETTEVILLE HAS ELECTED TO PARTICIPATE IN
AVFUEL'S BRAND PROGRAM. THE FOLLOWING WILL APPLY
1. City of Fayetteville has been invited and has elected to participate in Avfuel's
Brand Program. Accordingly, Avfuel hereby licenses City of Fayetteville as 8
dealer ("Branded Dealer') to use Avfuel's Brand Names and Trademarks subject
to the provisions set forth herein. All trade names, trademarks, service marks,
logos and other commercial symbols that Avfuel either owns or has the right to
sub -license (the 'Intellectual Property") shall be and remain the pmpeny of
Avfuel. Further all signs, decals, graphic materials and other tingible property
supplied by Avfuel which bear or are imprinted with any of the Intellectual
Property or are used to impnnl or display the same (the "Branded Property") and
all replacements thereof shall be and remain the property of Avfuel. Any use of
the Intellectual Property or the Branded Property by the City of Fayetteville
otherwise than as expressly authorized by this Agreement is hereby expressly
prohibited. Upon termination of City of Fayetteville's participation in the Brand
Program City of Fayetteville shall, at its expense, dc -install and retum to Avfuel
all salvageable signage and return or destroy all other items that identify City of
Fayetteville as a branded Avfuel dealer.
2. Avfuel agrees to supply to City of Fayetteville, for City of Fayetteville's use
and possession during the term of this Agreement such signs, decals, credit card
imprinters and other graphic materials as Avfuel deems necessary in order to
Rev 7/10/03
Page
identify City of Fayettevillf as an Avfucl Branded Dealer. Unless otherwise
agreed in writing, Avfucl will bear all costs of such materials. City of
Fayetteville agrees to honor all Avfuel charge cards, subject to the provisions of
the Credit and Charge Card Acceptance Program set forth below, during City of
Fayetteville's participation in Avfucl's Brand Program.
3. City of Fayetteville shall be responsible for obtaining all necessary permits
and for installation of all Branded Property including (without limitation) all
electrical and other connections, and shall make sure that all installations shall
comply with all brand specifications and with all applicable state and local
codes, ordinances and governmental regulations (if any). Unless otherwise
agreed in wriung, the City of Fayetteville will bear all costs of installation. No
signage shall be installed so as to become a fixture upon real property. 'The use
of color schemes and Intellectual Property painted on facilities and equipment
owned by City of Fayetteville or others and used in the conduct of City of
Fayetteville's business, shall comply with particular and displayed specifications
City of Fayetteville shall be responsible for maintenance and upkeep of Branded
Property and Paint -ons, and agrees to keep and mainam the same at all times in
a good. clean. safe, operative and first class condition, neatly painted and
displayed. If any of such installation or maintenance is performed by Avfuel,
City of Fayetteville agrees to remit upon demand all costs thereof, including
(without limitation) all expenditures for labor, materials and the like. If any
Branded Property is damaged. lost or destroyed while in City of Fayetteville's
use, possession or control, or if City of Fayetteville shall deliver any of such
property to anyone not herein expressly authonzed to use or possess it. City of
Fayetteville agrees to repair. recover or replace such property fonhwith, at City
of Fayetteville's expense.
4. City of Fayetteville shall keep all Branded Property insured at all times
against lou. theft, fire or physical damage, up to the full replacement cost
thereof, designating Avfuel as the loss payee. The City of Fayetteville shall pay
when duc all personal property taxes and assessments assessed against the
Branded Property and shall neither suffer nor permit any lien or encumbrance ur
any attachment against any of such Branded Property.
S. City of Fayetteville agrees that it will not use or display any Branded Property
or Intellectual Property: (1) in a manner which causes or is calculated to cause
confusion among patrons of City of Fayetteville or the general public as to the
type, characteristics, quality. manufacture or sponsorship of any fuel or other
product which City of Fayetteville offers for sale; (2) for the purpose of selling
or promoting the sale of aviation fuel other than fuels supplied by Avfuel; or (3)
for the purpose of selling or offering for salt any product which has been diluted
or adulterated. whether intentionally or not. City of Fayetteville further agrees
that it will at all times maintain its facilities and conduct its operations in
compliance with those standards and procedures established from time to time by
Avfucl and applicable to aviation fixed base oprnwrs displaying any of the
Intellectual Property. Such standards and procedures may include (without
limitation) image quality standards for the bond displayed, quality control and
refueling procedures for products bearing such brand, and standards for services
offered and facilities utilized by City of Fayetteville in conjunction with such
products. Avfucl may, but shall be under no obligation to conduct periodic tests
and inspections as it may deem appropriate to evaluate compliance with this
Agreement. Copia of all tat and inspection repons shall be given to City of
Fayetteville. It is expressly understood that the purpose of any such tats or
inspections is to assist City of Fayetteville in complying with the standards set
for a Branded Dealer. By performing such tests or inspections Avfucl assumes
no responsibility for City of Fayetteville's failure to comply with the Standards or
for safety hazards, latent or patent, created or maintained by City of Fayetteville
If Avfucl determines, in its sok discretion, that City of Fayetteville is or has
violated this provision, then Avfuel may suspend or terminate City of
Fayetteville's right to use Avfuel's Brands and or Trademarks.
Avfuel reserves the right to amend, suspend, or terminate thc program at any
time. City of Fayetteville may withdraw from this Program upon 60 days Notice
w Avfucl. See Section 14 of the General Tants and Conditions regarding
Notice. Termination of City of Fayetteville's participation in this Program shall
not be construed as terminating the Agreement or City of Fayetteville's
participation in another Program.
AVTRIP PROGRAM•
JF CITY OF FAYETTEVILLF, HAS ELECTED TO PARTICIPATE IN
AV FUEL'S AVTRIP PROGRAM, THE FOLLOWING WILL APPLY
I. City of Fayetteville has been invited and has elected to participate in Avfuel's
AVTRIP Program a marketing incentive program intended to reward pilots who
choose to purchase fuel and services from participating Avfuel dealers.
2. City of Fayetteville will:
4 of8
FnO Aviation Fuel Supply Agreement
•
2.1 Use its best efforts to mroll pilots in the AVTRIP Program;
2.2. Award all participating pilots two AVTRIP Points for each U.S. gallon of
fuel purchased from City of Fayetteville and, at City of Fayettcville's discretion,
a minimum of one point for each U.S. dollar. or part thereof, spent by a
participating pilot for parts and services at City of Fayetteville's facilities;
2.3. Pay to Avfuel, by deduction from amounts due to City of Fayetteville or in
cash if no amounts are due City of Fayetteville, 5.01 for each AVTRIP point
awarded;
2.4 Maintain complete records of all points earned by participating pilots;
2.5. Train its personnel in the operation of the AVTRIP Program, and
imminently post written materials relating to AVTRIP in and around its
facilities in order to encourage pilot participation in the program; and
2.6. Promptly send all enrollments to Avfuel so that the enrollee can be added to
the list of AVTRIP participants. Not less frequently than every two weeks. City
of Fayetteville will send Avfuel copies of all records pertaining to points earned
by pilots that have not been previously reported via POS transmission, and remit
to Avfucl all sums due hereunder.
3. Avfuel will:
3.1. Act as the administrator of the AVTRIP Program; and
3.2. Include the AVTRIP Program in its local, national and international
marketing and advertising efforts as it deems appropriate to encourage pilot
participation in thc AVTRIP Program.
4. Thc price charged to any pilot for fuel, pans or service shall not be based on
whether a pilot participates in the AVTRIP Program.
5. Avfuel reserves the right to amend, suspend, or terminate thc AVTRIP
Program at any time. Avfuel also reserves the right to terminate any individual's
participation at any time for misuse of the AVTRIP card. violation of the rules of
the program. or inactivity for a period of 12 consecutive months. City of
Fayetteville may withdraw from this Program upon 90 days Notice to Avfuel.
See Section 14 of the General Tarns and Conditions regarding Notices.
Termination of City of Fayeneville's participation in this Program shall not be
construed as terminating the Agreement or City of Fayetteville's participation in
any other program.
CREDIT AND CHARGE CARD ACCEPTANCE. PROGRAM:
IF CITY OF FAYETTEVILLE HAS ELECTED TO PARTICIPATE IN
AVFUEL'S CREDIT CARD ACCEPTANCE PROGRAM. THF,
FOLLOWING WILL APPLY.
I. City of Fayetteville has been invited and has elected to participate in Avfuel's
Credit and Charge Card Acceptance Program. Accordingly, City of Fayetteville
may honor any valid credit or charge card listed in the most current Accounts
Receivable Discounts Schedule ("ARDS") issued by Avfuel ('Acceptable
Cards') for the purchase of products and services if the purchase has bccn
specifically approved by Avfucl. Avfucl's ARDS is subject to change upon five
(5) days prior written notice.
2. City of Fayetteville may also choose to participate in the Avfuel Honor All
Program. The Honor All Program permits City of Fayetteville to extend credit to
any customer that has a billing address within the United Sates or its Temones
or Canada and that presents a valid credit card from any nationally recognized oil
company on Avfucl's approved Honor All list if: (1) City of Fayetteville does
not have a merchant agreement with the issuer of the card or any processor of
such accounts other than Avfuel; and (2) the purchase has been specifically
approved by Avfucl. Thc discount schedule for Honor All transactions will
generally be higher than the discounts applied under the ARDS. If City of
Fayetteville chooses to participate in the Honor All program, Nen all Honor All
invoices must contain the current telephone number and current billing address
of both the cardholder and the Authorized User. and City of Fayetteville shall
inform the presenter that cardholder will be billed directly by Avfuel and not by
the card issuer. Honor All transactions are limited to a total of 5250 for
miscellaneous services such as tie downs, catering, aircraft storage, pilot
supplies, charts. repairs and oto services, and to an aggregate total of 52,000.00
for a single transaction.
Rev 7/10103
•
3. City of Fayetteville shrepare a voucher for each credit card, charge card
11
or Honor All transaction and shall promptly submit those vouchers to Avfuel.
The term 'voucher' means a machine impnnted credit card slip or other written
record of a credit sale in form acceptable to Avfuel that has bccn fully completed
by City of Fayetteville annually or electronically by a Point of Sale (POS)
machine in accordance with the instructions contained in the then current edition
of Avfucl's manual and signed by the Authorized User. If the voucher is
prepared manually, the City of Fayetteville is responsible to make sure that thc
voucher is complete and legible. The City of Fayetteville is also responsible for
nuking sure that the card presented is not expired and that the person signing the
voucher is an Authorized User. If imprinted and hand written amounts on
invoices do not agree the lesser amount shall be presumed to be correct City of
Fayetteville shall make a manual imprint of all cards electronically processed hut
requiring that the card number be entered manually, in order to prove that thc
card was present at the time of sale. "Promptly" means, in the case of POS
transmissions, batches should be submitted at least once per day and by I 1-.00
PM Central Time but in no case any less frequently than once every 72 hours,
and in thc case of manually prepared vouchers, weekly, but not later than ten
days alter transaction date. City of Fayetteville must keep copies of vouchers
and summaries for a period of seven (7) years and supply Avfuel with duplicates
if requested.
4. Upon receipt from City of Fayetteville of a properly prepared voucher -
together with any necessary summaries thereof on forms prescribed by Avfuel,
Avfuel shall remit to City of Fayetteville or, as Avfucl may elect, credit City of
Fayetteville's fuel purchase account with Avfuel, in an amount equal to the total
face amount of all such vouchers less such discounts as applicable according to
Avfucl's then current ARDS or the Ilonor All discount schedule, and any fees fur
AVTRIP point awards.
5. City of Fayetteville acknowledges receipt of, and agrees to observe, Avfuel's
current instructions for recording and processing credit transactions. Avfuel
reserves the right to amend any and all instructions and to add new instructions
from time to time, and City of Fayetteville agrees to be bound by all such
amendments and new instructions. Avfuel also reserves thc right to issue new or
revised forms, POS equipment, software and inprinten from time to time, and to
issue instructions regarding their use to be effective upon five (5) days poor
written notice.
6. City of Fayetteville shall be solely liable and responsible for remittance of all
taxes to the proper authorities regardless of whether charged to purchaser. Avfuel
does not assume responsibility for the payment of any tax applicable to sales or
other transactions resulting in credit card accounts receivable and City of
Fayetteville shall defend, indemnify and hold harmless Avfuel from any such
claims.
7. Without limiting the generality of other provisions of this Agreement
pertaining to charge backs. it is specifically understood and agreed that Avfuel
may decline to accept or, if accepted, may subsequently charge back to City of
Fayetteville any voucher:
7.1. Where any of the required information is omitted or illegible;
7.2. That is imprinted or processed with an expired credit card;
7.3. Covering a purchase not authorized by the cardholder or involving fraud or
any misuse of a credit card by the purchaser with or without City of Fayetteville's
knowledge;
7.4. Covering a transaction that has not born authorized by Avfuel or
docs not carry a valid authorization code;
7.5. Covering a transaction or series of related transactions (constituting in the
reasonable opinion of Avfuel a single sale transaction) the aggregate face amount
of that exceeds any of the single sale limitations to which the parties hereto may
agree;
7.6. That becomes the subject of a disputc between City of Faycttcvillc and
purchaser;
7.7. Where the Authorized User has not received his copy of the voucher;
7.8. For which City of Faycttcvillc has received or will receive any payment or
reimbursement from any person other than Avfuel;
7.9. Where City of Fayetteville has granted any right of ownership or security
interest to any person other than Avfuel unless thc invoice is accompanied by a
written waiver of such interest:
Page 5 of 8