HomeMy WebLinkAbout111-13 RESOLUTIONRESOLUTION NO. 111-13
A RESOLUTION AWARDING RFP #13-05 AND APPROVING A FIVE (5)
YEAR CONTRACT WITH AVFUEL CORPORATION FOR THE PROVISION
OF AVIATION FUEL AND REFUELER TRUCKS FOR FAYETTEVILLE
EXECUTIVE AIRPORT -DRAKE FIELD
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEVILLE, ARKANSAS:
Section 1. That the City Council of the City of Fayetteville, Arkansas hereby awards RFP
#13-05 and approves a five (5) year contract with AvFuel Corporation for the provision of
aviation fuel and refueler trucks for Fayetteville Executive Airport -Drake Field.
PASSED and APPROVED this 2 1 " day of May, 2013.
APPROVED:
ATTEST:
By: V1
LISA BRANSON, Deputy
: AYETTEVILLE:::a=
5.s'.ANSPam'.•
'
ti •
City of Fayetteville Staff Review Form
City Council Agenda Items
and
Contracts, Leases or Agreements
5/21 /2013
City Council Meeting Date
Agenda Items Only
Ray M. Boudreaux Aviation
Submitted By Division
Transportation
Department
Action Kequirea:
Action Required: A resolution to approve an aviation fuel and refueler trucks agreement with AvFuel Corporation.
Contact: David A. Mittleman, District Manager, Avfuel Corp., 14821 Juniper St., Leawood, KS, 66224, 800-599-9753.
dmittleman@avfuel.com IMP J3_ Dy"
$875,000 ESTIMATED FY2013
Cost of this request
5550.3955.5308.03
5550.0806.00
Account Number
Mat/Supp & Serv/Chgs
Program Category / Project Name
Airport Operations
Program / Project Category Name
Airport
Project Number Remaining Balance Fund Name
Budgeted Item 0 Budget Adjustment Attached
$ 1,519,831.00
Category / Project Budget
$ 53,787.00
Funds Used to Date
$ 1,466,044.00
-/ Previous Ordinance or Resolution # 5566
Date
Original Contract Date: 3/5/2013
CO —1 Original Contract Number:
Date
4.. k,�,._ S- 4-?.ot3
Finance and Internal Services Director Date
A&,✓( _ 4-LX 7
3
Chief of Date
Mayor ate
Comments:
Received in City - 2 -1 3 P 0 4: 4 3 K C V D
Clerk's Office ,
Received in
Mayor's Office
Revised January 15, 2009
City Council Meeting of: May 21, 2013
Agenda Item Number:
AVIATION DIVISION
FAYETTEVILLE EXECUTIVE AIRPORT • DRAKE FIELD
CITY COUNCIL AGENDA MEMO/STAFF CONTRACT REVIEW MEMO
TO: Mayor Jordan
THRU: Chief of Staff
THRU: Staff/Contract Review Committee
THRU: Terry Gulley, Transportation Director
FROM: Ray M. Boudreaux, Aviation 11
rector
DATE: April 29, 2013 '
SUBJECT: Approval of the Aviation Fuel Supply Agreement with AVFUEL
Corporation for supply of aviation fuel for resale and aircraft
service trucks for the Fayetteville Executive Airport, Drake
Field. Signature of the Mayor and City Clerk.
RECOMMENDATION: Approve the Aviation Fuel Supply Agreement with
AVFUEL Corporation. Signature of the Mayor and City Clerk on the Agreement.
BACKGROUND: The Airport solicited proposals from aviation fuel suppliers for
a fuel supply agreement. Four companies responded to the solicitation. A selection
committee was formed by the Purchasing Department and AVFUEL was selected
unanimously. Key ingredient to their selection was their markup on the fuel and
their new training program. AVFUEL also provides marketing and promotions for
the airport. The AVTRIP program for pilots is one of the best in the industry. This
contract delivers fuel for resale to the Fixed Base Operator and equals
approximately $875,000.00 for the purchase of approximately 200,000 gallons of
fuel through the end of 2013. The contract is for five years. The first year of the
service truck lease is at no cost then at $3,000.00 per month for the remaining four
years of the contract. AVFUEL offered the lowest cost for the service truck lease.
BUDGET IMPACT: The purchase of fuel and the lease of aircraft service trucks
are included in the approved FBO budget.
Attachments: Staff Review
Aviation Fuel Supply Agreement
4500 SOUTH SCHOOL AVENUE, SUITE F • AIRPORT TERMINAL BUILDING • FAYETTEVILLE AR 72701
479.718.7642 - 479.718.7646 FAX • www.accessfayetteville.org/governmenVaviation
airport—economic—development@ci.fayetteville.ar.us
RESOLUTION NO.
A RESOLUTION AWARDING RFP #13-05 AND APPROVING A FIVE (5)
YEAR CONTRACT WITH AVFUEL CORPORATION FOR THE PROVISION
OF AVIATION FUEL AND REFUELER TRUCKS FOR FAYETTEVILLE
EXECUTIVE AIRPORT -DRAKE FIELD
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEVILLE, ARKANSAS:
Section 1. That the City Council of the City of Fayetteville, Arkansas hereby awards RFP
#13-05 and approves a five (5) year contract with AvFuel Corporation for the provision of
aviation fuel and refueler trucks for Fayetteville Executive Airport -Drake Field.
PASSED and APPROVED this 21" day of May, 2013.
APPROVED:
By:
LIONELD JORDAN, Mayor
By:
SONDRA E. SMITH, City Clerk/Treasurer
�AVFUE
CORPORATIOLN
April 30, 2013
Ray Boudreaux
Fayetteville Municipal Airport
4500 S. School Street
Suite F
Drake Field
Fayetteville, AR 72701
Dear Mr. Boudreaux:
GLOBAL SUPPLIER OF AVIATION FUEL AND SERVICES
Enclosed is a copy of the executed Aviation Fuel Supply Agreement between our
companies. Please review them and execute where indicated. Please return back to me at
the address below or use the enclosed prepaid overnight envelope.
I would like to thank you for your continued business with Avfuel. If you have any
questions, do not hesitate to call us!
Sincerely,
AVFUEL CORPORATION
Esther M. Collis
Administrative Coordinator
Enclosure
PO Box 1387, Ann Arbor, Michigan 48106-1387 (734) 663-6466, (800) 521-4106
47 W. Ellsworth Road, Ann Arbor, Michigan 48108-2278 Fax: (734) 663-1681, www.avfuel.com
Customer Code:
AVFUEL CORPORATION
F XED BASE OPERATOR
AVIATION FUEL SUPPLY AGREEMENT
Reference Date: April 19, 2013
SUMMARY
AP,�uT,OLNE
Effective Date: June 1, 2013
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, dba Fayetteville
Executive Airport, Drake Field having its principal office at (Street address only) 4500 South School Avenue, Suite F, Fayetteville, AR
72701, 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 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. If customer should avail itself of any of the Programs not checked below then Customer
specifically agrees to be bound by the Special and General Terms and Conditions that govern those Programs.
Applicable Certificates of Insurance are attached hereto, Insurance Company Name
Q Customer Credit Program
Brand Program
FYI Credit and Charge Cards Acceptance Program
Equipment Lease Agreement
CUSTOMER FEIN: 71-6018462
STATE ID NUMBER:
FOR: AVFUEL CORPORATION
By:
William B. Light
Title: Vice President, Administration
FTJ Addendums
EX AVTRIP Program
Q Contract Fuel Dealer Program
Q Avsurance Primary Commercial Insurance Program
TYPE OF BUSINESS: Municipality
(i.e. C-corp, S-corp, Partnership, LLC, Sole Prop, or other)
STATE OF INCORPORATION: Arkansas
FOR: CITY OF FAYETTEVILLE, dba.,
FAYETTEVILLE EXECUTIVE AIRPORT,
Title:
(Print Title)
The undersigned hereby guarantee(s) payment and performance of this Agreement by Customer.
Rev 0016112 Page 1 of2 FBo AFSA
CUSTOMER NAME:
BILLING ADDRESS:
(if dffierent than street address)
DELIVERY ADDRESS:
(fdI Brent thorn street address)
AIRPORT ID (IATA CODE):
PRODUCT(s):
Jet -A
FIXED BASE OPERATOR
AVIATION FUEL SUPPLY AGREEMENT
SPECIAL TERMS AND CONDITIONS
City of Fayetteville, dba., Fayetteville Executive Airport, Drake Field
4500 South School Ave
Suite F
Fayetteville, AR 77061
4500 South School Ave
Suite F
Fayetteville, AR 77061
FYV Drake Field
XD Jet -A with Anti -ice ❑X Avgas/100LL
PAYMENT TERMS: Net Ten (10) Days, EFT
CREDIT LIMIT: $75 000 00
EQUIPMENT LEASED:
❑ Other
Replacement*
Description** S/N or VIN Lease Rate Cost (Current)
# 1288 20o2 International 1200 Gallon Avgas Truck #H509664 $ 400.00 $50,000.00
#2036 2003 International 2000 Gallon Jet Truck #N583573 $1,200.00 $75,000.00
#17087 2004 Sterling 3000 Gallon Jet Truck #AN15022 $1,400.00 $115,000.00
Rental Billings Will Not Begin unfit June of 2014 for a 5 year contract
*Hazard insurance, **Meters, if so equipped, have NOT been Certified or Calibrated, this is the responsibility of Customer.
CONTRACT FUEL DEALER:
Flight Operation Type (select one): X Corporate Configured Accepted
❑ Non Corporate Ops Only
❑ DC-9 and Larger, Non Corporate Ops Only
Airport Flowage Fee:
Storage Fee:
Into wing Fee:
Jet
❑ YES ❑ NO
EYES ❑ NO
$tg (i.e. $0.0300)
$/g (i.e. $0.0300)
from/to
Rates are as nrevious1y established between the City of Fayetteville and Avfuel
OTHER SPECIAL TERMS AND CONDITIONS
Rev o4/26/11 rBO AFSA Page 2 of 2 �
ImGals Avfuel whale
Addendum
To the
Aviation Fuel Supply Agreement
Between
Avfuel Corporation
And
City of Fayetteville, dba., Fayetteville Executive Airport, Drake Field
The following is incorporated and made part of the above named agreement with an effective date
of June 1, 2013.
Section 10. RECIPROCAL INDEMNIFICATION: This section is deleted.
Section 16. GOVERNING LAW: In this section remove "Michigan" and replace with "Arkansas".
Delete the second sentence.
CUSTOMER CREDIT PROGRAM
Section 7. This section is deleted.
AVFUEL CORPORATION
By:
Signature
William B. Light
Name Printed
Its: Vice President,Administration
Title
CITY OF FAYETTEVILLE, dba.,
FAYETTEVILLE EXECUTIVE AIRPORT,
DRAKE FIELD
Name Printed
Its: Mayor
Title
Date: _ 5 , _q I Is
04/25/20.13 Page 1 of I
FBO Aviation Fuel Supply Agreement
AVIATION FUEL SUPPLY AGREEMENT
GENERAL 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 Customer agrees to purchase and pay for, the Customer's entire
requirements for Products and all products to be handled, stored, used,
distributed or sold by Customer or its affiliates at each airport represented by the
Delivery Addresses listed in the Special Terms and Conditions. If, at any time
during the term of the AFSA Customer, or any entity controlled by or in
common control with Customer, operates any other facility at the Airport that
sells aviation fuels (a "Supplemental FBO"), then Customer may, or may 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 FBO for
aviation fuel. Customer represents and warrants that all products and services
purchased hereunder will be for the purpose of conducting its business. Avf iel 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 be automatically
renewed for successive three (3) year terms 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 Customer 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 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°F). The conversion ratio shall be from the current American
Society for Testing and Materials ("ASTM") IP Petroleum Measurement Tables.
3.3. Unless otherwise agreed in writing by the Parties, Customer 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
the Terms and Conditions of the Customer Credit Program set forth below.
4. TAXES AND OTHER CHARGES:
4.1. Customer 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 Customer, excepting Taxes which are imposed upon
Avfuel based upon its net income or revenues.
4.2. If the Taxing Authorities collect the Taxes directly from Customer, then
Customer shall pay all such Taxes on or before their due dates. If the Taxing
Authorities require that Avf iel collect the Taxes from Customer at the time of
sale, Avf iel will use its best efforts to include all such Taxes in its invoices to
Customer and Customer shall pay all such invoices on or before their due dates.
(hi its invoices, Avfuel will identify those Taxes as separate items.) If Customer
is entitled to an exemption from any Taxes which the Taxing Authorities require
be collected by Avfuel, then, in order to permit Avf iel not to collect those Taxes,
Customer 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 Customer of additional Taxes payable
with respect to the Products covered by that invoice, then Customer shall
promptly pay such additional Taxes.
4.3. CUSTOMER ACKNOWLEDGES THAT IT REMAINS
SOLELY RESPONSIBLE FOR ALL SUCH TAXES, AND
WILL INDEMNIFY AVFUEL AGAINST ANY LIABILITY
Rev 10/10/12
Page 1 0
FOR SUCH TAXES EVEN IF AVFUEL FAILS FOR ANY
REASON TO INCLUDE ANY SUCH TAXES IN ITS
INVOICES TO CUSTOMER. HOWEVER, AVFUEL
WILL INDEMNIFY CUSTOMER AGAINST ANY LATE
CHARGES, PENALTIES OR OTHER CHARGES THAT
CUSTOMER INCURS IF AVFUEL'S FAILURE TO
INCLUDE ANY TAXES IN ITS INVOICE IS DUE TO
GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
4.4. Customer's obligation to indemnify Avfuel shall extend to any Taxes which
are assessable against Customer 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 are
subsequently assessed by Taxing Authorities based upon its rejection of the
claimed exemption for the Products or Customer.
5. DELIVERY:
5.1. Deliveries shall be made to the Delivery Address(es) listed in the Special
Terms and Conditions. Avf iel or its authorized shipping agent ("Shipping
Agent") shall be provided access to Customer's storage facilities during normal
business hours, or at such other times as may be approved by Customer'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 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 Customer. Such designation
shall be construed as a warranty that the designated tanks and containment areas
have been inspected and approved by the appropriate regulatory agencies.
Customer shall be responsible for all unloading operations including the
placement of hoses into the proper storage tanks. Customer 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 Customer's tanks shall be fumished in
such a manner that Avfuel or its Shipping Agent can safely and conveniently
reach Customer's storage facility with the hoses available, and Avf iel or its
Shipping Agent may refuse to complete any delivery which Avf iel or the
Shipping Agent determines, in it sole discretion, cannot be made safely.
5.3. Any claim by Customer 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 Customer.
GIVEN THE NATURE OF THE PRODUCTS, TIME IS OF THE
ESSENCE WITH RESPECT TO SUCH 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, state or federal authority
or agency or of a public enemy, war, rebellion, terrorism, 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 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 Customer. In that event, and only to the extent of
such unavailability, the Parties hereto shall be relieved of their obligations under
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:
7.1. Avfuel 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
Customer's Initials
f9 01,
FBO Aviation Fuel Supply Agreement
Gasoline will conform to the ASTM Specification 13910; and Jet Fuel will
conform to the ASTM Specification D1655. Avfuel retains the right to revise the
applicable specifications upon written Notice to Customer.
7.2. THE LIMITED WARRANTY STATED ABOVE IS THE ONLY
WARRANTY GIVEN BY AVFUEL REGARDING THE PRODUCTS.
AVFUEL DISCLAIMS ANY OTHER WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES
OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR
PURPOSE.
7.3. Customer shall sample and test each shipment of Product prior to delivery
using industry standard test procedures. If Customer determines or suspects non-
conformity then Avfuel must be immediately notified, while the Shipping Agent
is still present, and the delivery shall not be completed until either Customer
accepts the Product, acknowledging conformity, or Avfuel replaces the Product.
Customer will permit Avfuel access to Customer's premises and records during
normal business hours and upon four (4) hours' telephonic or written Notice to
Customer for purposes of investigating any claim of non -conformity. If it is
determined that the Product is non -conforming, Avfuel's sole obligation shall be
either (1) replacement of the non -conforming Product with conforming Product,
or (2) removal of the non -conforming Product and cancellation of the invoice for
that Product or refund of the amount paid for that Product, as determined by
Avfuel. Avfuel will be reasonably prompt in its actions hereunder. TIME IS
OF THE ESSENCE AND ANY FAILURE TO FOLLOW THE ABOVE
PROCEDURE SHALL VOID THE LIMITED WARRANTY.
8. COMPLIANCE WITH LAWS:
8.1. Each Party shall, at all times and in all respects, comply with all federal,
state, 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 Parties agree to use its reasonable best
efforts to assist the other Party in complying with such laws, ordinances, rules
and regulations which the other Party may be required to observe in the
performance of its obligations under this Agreement. Each Party 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 Party shall properly instruct its employees, agents and contractors with
regard to compliance with all applicable laws, ordinance, rules, regulations and
standards governing the sale and distribution of the Products that are the subject
of this Agreement.
9. INDEPENDENT STATUS: Each Parry 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 commitments or representations on behalf of the other Party or
otherwise to take any actions on behalf of the other Party.
10. RECIPROCAL 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 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 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
Rev 10/10/12
THE INDEMNIFYING PARTY UNDER THIS SECTION
10 SHALL BE DUE WITHIN TEN (10) 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 THE 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 ATTORNEY'S FEES OR OTHER COSTS
INCURRED BY THE INDEMNIFIED PARTIES IN
ENFORCING THE OBLIGATION OF INDEMNITY
UNDER THIS SECTION. EACH PARTY'S 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
SIMILAR TIME PERIODS WITHIN WHICH AN ACTION
FOR INDEMNITY OR CONTRIBUTION MUST BE
BROUGHT.
11. BREACH AND TERMINATION:
I LL Failure of a Party to comply with the provisions of this Agreement shall
constitute a breach of the Agreement 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 Parry 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 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 Parry 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 Customer's obligation to make a payment to Avfuel when due,
then Avfuel may declare all amounts owed to it immediately due and payable,
and Avfuel, in addition to all other rights hereunder, may suspend its
performance or terminate this Agreement forthwith and without giving Customer
Notice or the opportunity to cure. Avfuel shall also have the right to offset any
amount that Avfuel then or thereafter owes to Customer, to any guarantor of the
Customer's obligations under this Agreement or to any affiliate entity that owns,
is owned by or is under common ownership with the Customer against any
amounts owed by Customer to Avfuel. Customer wan -ants that it is authorized to
make this commitment with respect to amounts owed by Avfuel 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
Customer for the purpose of repossessing any item of Equipment or any personal
property of any description owned by Avf iel, and Customer 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 Customer hereunder or of any damages accruing by reason
of the breach of any of the terns or conditions contained herein. Aviation fuels
on board repossessed Equipment will become the property of Avfuel, and
credited against any amount owed Avfuel by Customer at that day's 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.
Customer's Initicp__
Page 2 of 9
FBO Aviation Fuel Supply Agreement
11.4. Except as set forth in Section 11.2 above, any dispute that arises 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 the 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 Parry 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, Customer 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 ($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) combined
single limit for bodily injury and property damage; (3) workers compensation
covering all employees of Customer and (4) physical damage coverage covering
the value of any leased Equipment. Insurance policies shall be issued by
insurance companies acceptable to Avfuel (whose acceptance may not be
unreasonably withheld), shall name Avfuel, 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. Customer
shall maintain such policies in full force and effect throughout the term of this
Agreement. Customer may, if it chooses, apply for this insurance through
Avfuel's subsidiary, Avsurance Corporation.
12.2. 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 customers
to be additional insureds, upon the written request of Customer and to the extent
that Customer qualifies for such coverage, Customer shall be added as an
additional insured under that policy upon payment by Customer of any additional
premium required by Avfuel's insurer for such coverage. If Avfuel no longer
offers this product liability insurance program, or the product liability insurance
is no longer free to Customer, Avfuel will notify Customer with thirty (30) days'
written notice of this change or Avfuel's intent to terminate the product liability
insurance program.
13. ASSIGNMENT: Customer 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 be unreasonably withheld.
Any transfer of a controlling interest in Customer shall be deemed an assignment
requiring the consent of Avfuel.
14. NOTICES: All Notices permitted or required under this Agreement shall
be 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 office, and with instructions to obtain the signature of the addressee.
15.. PROGRAM PARTICIPATION:
15.1 The provisions of these General Terms & Conditions will apply to the
CUSTOMER CREDIT PROGRAM„ BRAND PROGRAM, AVTRIP
PROGRAM, CREDIT CARD ACCEPTANCE PROGRAM, , AVSURANCE
PRIMARY COMMERCIAL INSURANCE PROGRAM, CONTRACT FUEL
PROGRAM AND EQUIPMENT LEASE PROGRAM that are described in the
subparts below (each a "Program") except to the extent these provisions are
inconsistent with the provisions in the subpart describing that Program..
15.2 If the Customer participates in any Program, whether by formally electing
to participate in that Program by selection in the Summary or by informally
electing to participate in that Program by taking part in the benefits of that
Program, the Customer will be bound by and subject to the provisions in the
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subpart relating to that Program, as supplemented by the provisions of these
General Terms & Conditions.
16. 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 hereunder shall be brought in the State of
Michigan, and exclusive jurisdiction shall lie with the courts located in
Washtenaw County, Michigan and each Party hereby submits to the exclusive
jurisdiction of those courts.
17. SEVERABILITY: In the event that any court of competent jurisdiction
shall determine that any provision of this Agreement shall be unenforceable, then
that provision shall be deemed to be null and void and the remaining provisions
hereof shall remain in full force and effect.
18. ENTIRE AGREEMENT TERMS: This Agreement, including all of its
parts, sets forth the entire agreement between Avfuel and Customer with respect
to the subject matter hereof and there are no other terms or conditions, oral or
written, express or implied, relating to or otherwise affecting such subject matter.
No term or condition of this Agreement shall be changed, supplemented,
cancelled or waived unless in writing and signed by both Avfuel and Customer.
If Avfuel and Customer have, prior to the effective date, been parties to any other
agreement relating directly to the sale of Products to Customer (a "Prior
Agreement"), such Prior Agreement, except for guarantees, shall be superseded
as of the effective date and all rights and obligations between Avfuel and
Customer with respect to the supply of Products from and after the effective date
shall be governed by the terms of this Agreement. 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.
CUSTOMER CREDIT PROGRAM:
IN THE EVENT THAT AVFUEL CHOOSES TO DELIVER GOODS OR
SERVICES THAT HAVE NOT BEEN PAID FOR IN FULL BY WIRE
TRANSFER PRIOR TO THE TIME OF THAT DELIVERY AVFUEL
SHALL BE CONSTRUED AS HAVING EXTENDED CREDIT TO
CUSTOMER AND THE FOLLOWING TERMS AND CONDITIONS
SHALL APPLY.
1. Credit terms may not be used during any period in which the Customer is in
default of this Agreement. In addition to the provisions of Section 11 of the
General Terms and Conditions, for the specific purposes of this Customer Credit
Program, the Customer will be in default if (1) any amount charged to the
Customer's account is not paid in accordance with the agreed upon payment terms;
(2) if and for so long as the Customer is in breach of any of its obligations under
any Agreement with Avfuel or any of its subsidiaries; or (3) if Avfuel determines
that there is any misrepresentation or breach of a warranty by the Customer under
or with respect to any Agreement with Avfuel. Use of credit is limited to the
amount specified in the Special Terms and Conditions of this Agreement. No
purchase may be made which would cause the total amount owed under this
Agreement to exceed that credit limit.
2. Upon termination of this Agreement, Customer 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 Avfuel,
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 Avfuel at its offices in Michigan, all purchases by
Customer for which Avfuel does not receive payment at or prior to the time of
delivery to Customer shall be charged as principal to Customer's account. Avfuel
may require Customer or Customer'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 Avfuel's opinion necessary to record or
substantiate any or all transactions resulting in a charge to Customer's account.
4. Avfuel shall invoice Customer for all Fuel Products delivered to Customer or
to Customer's designees. Invoices shall include the selling price of the product
delivered, taxes, duties, and any other charges as separate line items. Invoices
are 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 Customer's account, then to the unpaid principal balance owed
upon such account in direct calendar order of due date. Customer agrees to pay
to Avfuel upon demand a fee of $50.00 for each check, draft or other form of
remittance that is not honored by the drawee upon due presentment by Avfuel or
Customer's Initia
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FBO Aviation Fuel Supply Agreement
its agents. From time to time, Avf iel may send Customer a statement of
Customer's account for Customer's information showing in summary, or in such
detail as Avfuel may deem appropriate, current transactions Avfuel posted to
Customer's account to date thereof, the amount of interest (if any) which has
accrued, and the balance owing thereon; however, the failure of AVfrel to furnish
any such statement shall not relieve Customer of the obligation to make payment
against invoices when due in accordance with the other terms of this Agreement.
Customer 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 be conclusively
presumed correct.
5. In the event that any invoice is not paid in full by the due date stated therein,
- the unpaid amount of the invoiceshallbear 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,
Customer shall never be obligated to pay and Avfuel shall never be entitled to
receive any interest upon any indebtedness incurred by Customer 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 Customer's account.
If such application results in a credit balance in Customer's said account, such
balance shall be refunded to Customer or applied to the next due amount in such
account as Customer shall direct.
6. If, at any time during the term of this Agreement, the financial responsibility
of Customer becomes impaired or unsatisfactory to Avfuel, in the sole judgment
of Avf iel, Avfuel, effective immediately upon delivery of Notice to Customer,
may require the advance cash payment or other security satisfactory to Avf iel
for any shipment of fuel and shipment may be withheld until such payment or
security is received.
7. For the purpose of securing a payment of all indebtedness of Customer to Avf lel
from time to time outstanding (including, without limitation, any amounts due
under this Agreement or any other agreement or instrument between Avfuel and the
Customer) grants to Avf iel a purchase money security interest in and to all of
Customer'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.
Customer warrants that the purchase money security interest granted herein is and
shall remain superior to any other security interests granted by Customer to any
other entity. For so long as this Agreement is in effect, all of Customer's inventory
of aviation fuels will be presumed to be merchandise purchased pursuant to the
Agreement and subject to the purchase money security interest granted by this
Agreement. Customer hereby authorizes Avfuel to sign and record all financing
statements and other instruments which Avf iel may reasonably require in order to
create, perfect and continue in force said security interest and first priority lien.
Customer authorizes Avfuel to file a true copy of this Agreement in lieu of any
financial statement. The rights and obligations of Avf iel and the Customer under
and with respect to the security interest and fast 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 Customer as stated in the Summary.
8. THIS PARAGRAPH APPLIES ONLY TO THOSE PERSONS WHO'S
SIGNATURES APPEAR AS GUARANTORS ON THE SIGNATURE PAGE
OF THIS AGREEMENT. PERSONS SIGNING AS GUARANTORS SHALL
BE CONSTRUED AS PERSONAL GUARANTORS REGARDLESS OF
ANY OTHER DESIGNATION. In consideration of the extension of credit by
Avfuel to Customer, 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 Customer whether such amounts are existing at the time that
this Guarantee is signed or are incurred at any time 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
Customer. Each Guarantor hereby waives notice of acceptance of this Guarantee
by Avfuel, notice of default by Customer, and all other notices that the Guarantor
may otherwise be entitled to receive. Failure on the 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 Customer before making a demand for payment hereunder, and
agrees to pay all attorney'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
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until Avfuel receives written notice to extend no further credit to Customer on
the security of this Guarantee. Such notice shall not discharge any obligation of
any Guarantor as to any then existing indebtedness or obligation of Customer
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.
9. Avfuel reserves the unilateral right to amend, suspend, or terminate the
Customer Credit Program at any time effective upon written notice to the
Customer. Customer may withdraw from this Program upon sixty (60) days
Notice to Avfuel. See Section 14 of the General Terms and Conditions regarding
Notices. Termination of Customer's participation in this Program shall not be
construed as terminating the Agreement or Customer's participation in another
Program.
BRAND PROGRAM:
IF CUSTOMER HAS ELECTED TO PARTICIPATE IN AVFUEL'S
BRAND PROGRAM THE FOLLOWING WILL APPLY.
1. Customer has been invited and has elected to participate in Avfuel's Brand
Program. Accordingly, Avfuel hereby licenses Customer as a 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 property of Avfuel. Further all
signs, decals, graphic materials and other tangible property supplied by Avfuel
which bear or are imprinted with any of the Intellectual Property or are used to
imprint or display the same (the "Branded Property") and all replacements
thereof shall be and remain the property of Avf iel. Any use of the Intellectual
Property or the Branded Property by the Customer otherwise than as expressly
authorized by this Agreement is hereby expressly prohibited. Upon termination
of Customer's participation in the Brand Program Customer shall, at its expense, de -install and return to Avfuel all salvageable signage and return or destroy all
other items that identify Customer as a branded Avfuel dealer.
2. Avf iel agrees to supply to Customer, for Customer's use and possession
during the term of this Agreement such signs, decals, credit card imprinters and
other graphic materials as Avf iel deems necessary in order to identify Customer
as an Avfuel Branded Dealer. Unless otherwise agreed in writing, Avfuel will
bear all costs of such materials. Customer agrees to honor all Avfuel charge
cards, subject to the provisions of the Credit and Charge Card Acceptance
Program set forth below, during Customer's participation in Avfuel's Brand
Program.
3. Customer 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
writing, the Customer 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 Customer
or others and used in the conduct of Customer's business, shall comply with
particular and displayed specifications. Customer shall be responsible for
maintenance and upkeep of Branded Property and Paint-ons, and agrees to keep
and maintain 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, Customer 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
Customer's use, possession or control, or if Customer shall deliver any of such
property to anyone not herein expressly authorized to use or possess it, Customer
agrees to repair, recover or replace such property forthwith, at Customer's
expense.
4. Customer shall keep all Branded Property insured at all times against loss,
theft, fire or physical damage, up to the full replacement cost thereof, designating
Avfuel as the loss payee. The Customer shall pay when due all personal
property taxes and assessments assessed against the Branded Property and shall
neither suffer nor permit any lien or encumbrance or any attachment against any
of such Branded Property.
5. Customer 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 Customer or the general public as to the type,
characteristics, quality, manufacture or sponsorship of any fuel or other product
Customer's Initials
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FBO Aviation Fuel Supply Agreement
which Customer 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 product which has been diluted or adulterated,
whether intentionally or not. Customer 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 Avfuel and applicable
to aviation fixed base operators displaying any of the hitellectual 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 Customer in conjunction with such products. Avfuel may, but shall
be 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 reports shall be given to Customer. It is expressly understood that the
purpose of any such tests or inspections is to assist Customer in complying with
the standards set for a Branded Dealer. By performing such tests or inspections
Avfuel assumes no responsibility for Customer's failure to comply with the
Standards or for safety hazards, latent or patent, created or maintained by
Customer. If Avfuel determines, in its sole discretion, that Customer is or has
violated this provision, then Avfuel may suspend or terminate Customer's right
to use Avf rel's Brands and or Trademarks.
6. Avfuel has invited the Customer to participate as a Branded Dealer on the
expectation and condition that (a) the Customer's deliveries of aviation fuel at
the Delivery Addresses will be limited to deliveries to end users pursuant to
direct sales by the Customer to those end users and deliveries to purchasers listed
as Contract Fuel Customers (a "CFC") to facilitate direct sales by Avf rel to
those CFCs pursuant to Avfuel's Contract Fuel Program (the "CFD Program"),
(b) the Customer will make deliveries of aviation fuel at the Delivery Addresses
to purchasers listed as CFCs only pursuant to the CFD Program and will not
make direct sales to those CFCs and (c) except for sales pursuant to the CFD
Program to purchasers listed as CFCs for brokered resale by those CFCs to end
users, the Customer will not make any deliveries of aviation fuel at the Delivery
Addresses pursuant to brokered sales (i.e. sales to end users in which a third
party receives a brokerage margin or commission or other fee from the
Customer or the end user or sales to third parties who resell the fuel to end
users). The Customer acknowledges that these conditions are necessary to
preserve Avfuel's continuing investment in developing and maintaining Avfuel's
Brand Program and that Customer's failure to comply with these conditions will
result in Avfuel's exercise of the right pursuant to Section 7 to discontinue the
Customer's participation as a Branded Dealer.
7. Avfuel reserves the unilateral right to amend, suspend, or terminate the Brand
Program at any time effective upon written notice to the Customer. Customer
may withdraw from this Program upon sixty (60) days Notice to Avfuel. See
Section 14 of the General Terms and Conditions regarding Notices. Termination
of Customer's participation in this Program shall not be construed as terminating
the Agreement or Customer's participation in another Program.
AVTRIP PROGRAM:
IF CUSTOMER HAS ELECTED TO PARTICIPATE IN AVFUEL'S
AVTRIP PROGRAM THE FOLLOWING WILL APPLY
1. Customer 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. Customer will:
2.1. Use its best efforts to enroll pilots in the AVTRIP Program;
2.2. Award all participating pilots two AVTRIP Points for each U.S. gallon of
fuel purchased from Customer and, at Customer'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 Customer's facilities;
2.3. Pay to Avfuel, by deduction from amounts due to Customer or in cash if no
amounts are due Customer, $.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
prominently 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
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the list of AVTRIP participants. Not less frequently than every two weeks,
Customer 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
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 the AVTRIP Program.
4. The price charged to any pilot for fuel, parts or service shall not be based on
whether a pilot participates in the AVTRIP Program.
5. Avfuel reserves the unilateral right to amend, suspend, or terminate the
AVTRIP Program at any time effective upon written notice to the Customer.
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 twelve (12) consecutive months. Customer may
withdraw from this Program upon ninety (90) days Notice to Avfuel. See
Section 14 of the General Terms and Conditions regarding Notices. Termination
of Customer's participation in this Program shall not be construed as terminating
the Agreement or Customer's participation in any other program.
CREDIT AND CHARGE CARD ACCEPTANCE PROGRAM:
IF CUSTOMER HAS ELECTED TO PARTICIPATE IN AVFUEL'S
CREDIT AND CHARGE CARD ACCEPTANCE PROGRAM, THE
FOLLOWING WILL APPLY.
1. Customer has been invited and has elected to participate in Avfuel's Credit
and Charge Card Acceptance Program (the "Charge Card Acceptance Program")
Accordingly, Customer may honor any valid credit or charge card listed as
accepted in the most current Acceptable Card List ("ACL") issued by Avfuel and
published in its website at Avfuel.com (the "Accepted Cards") for the purchase
by the party to which that card is issued (the "Cardholder") of products and
services if the purchase has been specifically approved by Avfuel.
2. Customer shall prepare a voucher for each transaction (a "Card Transaction")
with an Accepted Card (a "Voucher") and shall promptly submit that Voucher to
Avfuel. The term "Voucher" means an electronically prepared credit card slip or
other written record of a credit sale in form acceptable to Avfuel that has been
fully completed by Customer and for which Customer is retaining a copy signed
a person authorized to use that Accepted Card (an "Authorized User"). Each
Voucher must be submitted electronically by means of an approved point of sale
machine or point of sale software system (a "POS Device") in accordance with
the instructions contained in the then current edition of Avfuel's Manual that can
be viewed or downloaded at Avfuel's website at Avfuel.com. In all Card
Transactions, the Customer is responsible for making sure that the card presented
is an Accepted Card and is not expired and that the person signing the Voucher is
an Authorized User. hi Card Transactions where the Voucher is first prepared
manually, the Customer is also responsible to make sure that the Voucher is
complete and legible. If imprinted and hand written amounts on a Voucher do
not agree the lesser amount shall be presumed to be correct. The Customer shall
make a manual imprint of all cards electronically processed but requiring that the
card number be entered manually, in order to prove that the card was present at
the time of sale. "Promptly" means batches of Vouchers should be submitted
(settled) at least once per day and by 11:00 PM Central Time but in no case any
less frequently than once every 72 hours. Customer must keep copies of signed
Vouchers and summaries for a period of seven (7) years and supply Avfuel with
duplicates if requested. Manual Card Transactions are for pre -arranged
emergency processing only and are not accepted under most circumstances.
Higher discount rates apply for manual Card Transactions and electronic Card
Transactions not settled and received daily by 11 pm Central Time.
3. Upon receipt from the Customer of a properly prepared and processed
Vouchers together with any necessary summaries thereof on forms prescribed by
Avfuel at its website at Avfuel.com, Avfuel shall, on its normal schedule, remit
to Customer or, as Avfuel may elect, credit Customer'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 Avfuel's then current Accounts
Receivable Discounts Schedule ("ARDS") issued to Customer by Avfuel and
subject to adjustments and chargebacks as provided in Section 7 below and less
any fees for AVTRIP point awards. In addition to any lien rights which Avfuel
might otherwise possess as a result of services provided to the Cardholder, upon
Customer's receipt of the payment or credit from Avfuel for Vouchers
Customer's Initial
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FBO Aviation Fuel Supply Agreement
generated from the Customer's sales to that Cardholder, the Customer
automatically and irrevocably transfers to Avfuel any lien rights that Customer
has or may have with respect to any property owned by the Cardholder arising
from the Card Transaction(s) for which those Vouchers were issued. Avfuel's
ARDS is subject to change upon five (5) days prior written Notice.
4. Customer acknowledges merchant processing instructions and rules and
regulations established by the issuers of the Accepted Cards (the "Issuers") in the
Issuers' websites that are included in or referenced in Avfuel's website at
Avf iel.com and agrees to abide by these instructions, rules and regulations, as
updated from time to time by the Issuers. Furthermore Customer agrees to
comply with all Data Security Standards and Data Security Policies of the Issuers
(the "PCl/DSOP Requirements') and certifies to Avfuel that it is and will
continue to be compliant with those PCl/DSOP Requirements. Customer shall
defend, indemnify and hold harmless Avfuel and its credit card processor from
any claims based on Customer's non-compliance with Customer's commitments
in this Section including but not limited to penalties, fines, and any costs
incurred in responding to any action alleging such non-compliance. Customer
understands that failure to be fully compliant with the PCl/DSOP Requirements
may result in loss of right to process Card Transaction under the Charge Card
Acceptance Program.
5. Customer acknowledges receipt of, and agrees to observe, Avf eel's current
instructions for recording and processing Card Transactions that are included in
Avfuel's website at Avfuel.com. Avfuel reserves the right to amend any and all
instructions in its website and to add new instructions to its website from time to
time, and Customer agrees to be bound by all such amendments and new
instructions. Avfuel also reserves the right to issue new or revised forms, POS
Machines, software and imprinters from time to time, and to issue instructions
regarding their use to be effective upon five (5) days prior written Notice.
6. Customer shall be solely liable and responsible for charging and subsequent
remittance of all taxes to the proper authorities for all Card Transaction
regardless of whether charged to purchaser. Avf iel does not assume any
responsibility for the setup, tax rate, reporting or payment of any tax applicable
to sales or other transactions resulting in credit card accounts receivable and
Customer shall defend, indemnify and hold harmless Avf iel from any such
claims. CUSTOMER IS SOLELY RESPONSIBLE FOR KNOWING THE
TAXES THAT MUST BE CHARGED FOR EACH CARD TRANSACTION
AND FOR PROPER SETUP FOR TAXES IN ANY ELECTRONIC SYSTEM
AND THE MAINTENANCE OF THAT ELECTRONIC SYSTEM.
7. Without limiting the generality of other provisions of this Agreement or in
Avfuel's website at Avfuel.com pertaining to charge backs, it is specifically
understood and agreed that Avfuel may decline to accept or, if accepted, may
subsequently charge back to Customer 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 Customer's
knowledge;
7.4. Covering a transaction that has not been authorized by Avfuel or does not
carry a valid authorization code;
7.5. Covering a transaction or series of related transactions (constituting in the
reasonable opinion of Avf iel 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 dispute between Customer and Cardholder,
including but not limited to cases where the Customer did not conspicuously post
at its facility and print on a work order signed by the Cardholder the Customer's
return policy for goods and services.
7.7. Where the Authorized User has not received a copy of the Voucher;
7.8. For which Customer has received or will receive any payment or
reimbursement from any person other than Avfuel;
7.9. Where Customer has granted any right of ownership or security interest to
any person other than Avfuel unless the invoice is accompanied by a written
waiver of such interest;
7.10. Presented by Customer to Avfuel more than ten (10) days after the
transaction date;
7.11. If the Card Transaction occurred or was settled after the date of expiration
or termination of this Agreement;
7.12. Created by any person other than Customer, or in any transaction other
than a Card Transaction in which Customer has sold merchandise or services to a
purchaser presenting an Accepted Card for use in payment for that Card
Transaction;
7.13. That are charged back to Avfuel by an Issuer for any reason at
all; or
7.14 That in any other manner does not conform to this Agreement or with
Avfuel's or Issuer's instructions for recording and processing Card Transactions
in its website at Avf iel.com.
8. In the event that a charge back exceeds the credit balance in Customer's fuel
purchase account then carved by Avfuel, Customer agrees to pay such excess
within three (3) days after notice that such excess is due. Upon reimbursement,
title to the Voucher(s) that include such excess and the indebtedness represented
thereby (to the extent of such excess) shall pass to Customer. If any funds come
into Avf eel's possession for any voucher that has previously been charged back
to Customer, Avfuel will promptly credit the full amount thereof to Customer's
account. Avfuel's charge back rights and rights of recourse against Customer
shall survive the termination of this Agreement.
9. Cash advances may not be charged on any Accepted Card and charges for
fuel in Vouchers shall only include charges for fuels from stocks delivered by
and purchased from Avfuel.
10. From time to time, Avfuel will send Customer a Credit Card Remittance
Summary for Customer's information showing in such detail as Avf iel may deem
appropriate the Card Transactions and amounts that have been credited to
Customer's account or paid to Customer during the period since the last report.
The failure of Avfuel to furnish a Summary shall not relieve Customer of any
obligations under the Charge Card Acceptance Program. Customer agrees to
review all such Summaries promptly after receipt. In any event, Customer shall be
solely responsible for making sure that it has received proper payment for each
Card Transaction submitted. Customer shall have forty-five (45) days from the
date of a Card Transaction to provide Avf iel Notice that the Card Transaction has
not been properly accounted for or that payment has not been received. If no such
Notice is given, such Card Transaction shall be conclusively presumed to have been
settled and closed.
11. Avf iel reserves the unilateral right to amend, suspend, or terminate Charge
Card Acceptance Program at any time effective upon written notice to the
Customer. Customer may withdraw from the Charge Card Acceptance Program
upon 60 days Notice to Avf iel. Termination of Customer's participation in the
Charge Card Acceptance Program shall not be construed as terminating the
Agreement or Customer's participation in any other Program.
12. This Charge Card Acceptance Program is further governed by the Avfuel
Corporation AFSA General Terms and Conditions, latest edition, as updated
from time to time and published at Avfuel.com. In the case of conflicts, the
terms of this Charge Card Acceptance Program shall prevail.
CONTRACT FUEL DEALER PROGRAM:
IF CUSTOMER HAS ELECTED TO PARTICIPATE IN AVFUEL'S
CONTRACT FUEL DEALER PROGRAM THE FOLLOWING WILL
APPLY.
1. Customer has been invited and has elected to participate in Avf eel's Contract
Fuel Dealer Program (the "CFD Program'). Accordingly, Customer agrees to
sell and deliver to clients who participate in Avfuel's Contract Fuel Program (the
"CFCs" or a CFC" as the context may require) aviation fuel supplied by Avfuel
and other products and services supplied by the Customer. 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 time to time by Avf iel, and is included in a listing of
purchasers eligible to purchase aviation fuel and other products and services
under the CFD Program. The Customer will secure authorization from Avf iel
before completing a sale to a CFC and the failure to obtain such authorization
may result in Avfuel's dishonor of the invoice for that sale.
Customer's Initiago—_
Rev 10/10/12
Page 6 of 9
FBO Aviation Fuel Supply Agreement
2. Subject to agreement between Customer and Avfuel, Products supplied
hereunder shall be supplied from either Avfuel inventory on site or from
Customer inventory. If, as a convenience to Customer, Avfuel maintains
inventory at Customer's facility then Customer agrees to the following: (a) if
Avfuel's inventory is held separately in a segregated storage facility, Customer
will withdraw fuel from that facility only to supply authorized CFCs and (b) if
Avfuel's inventory is comingled with the inventory of the Customer (and, if
applicable, third parties) in unsegregated facilities, Customer will not use or
permit others to use Avfuel's inventory to supply parties other than authorized
CFCs and to that end Customer shall not at any time make or permit withdrawals
from that facility that would reduce the fuel in such facilities below the level of
Avfuel's inventory (and, if applicable, the inventories of third parties).
Customer shall measure Avfuel's inventory and reconcile that inventory on an
ongoing basis. Reconciliation reports, in a form satisfactory to Avfuel, shall be
delivered to Avfuel no later than the 5'h day following the end of each month. If
Avfuel's inventory is commingled in an unsegregated storage facility, gains and
losses shall be allocated proportionally to the parties sharing the storage facility
based 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 be adjusted to
coincide with actual inventory each month. Unless the 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 are supplied from the
Customer's inventory, the Customer will be liable if the Products do not conform
to specifications. Customer shall maintain Avfuel's inventory level in
accordance with Avfuel's guidelines and shall specify when ordering fuel
whether that fuel is for Customer's or Avfuel's inventory (which is subject to
approval by Avfuel).
3. Under the CFD Program, all aviation fuel delivered by the Customer to a CFC
will be deemed sold by Avfuel and will be at the prices and terms independently
established between Avfuel and the CFC If Avfuel maintains an inventory of
aviation fuel at the Customer's facilities, then aviation fuel supplied by the
Customer to CFCs will be drawn from Avfuel's inventory. If Avf iel does not
maintain an inventory of aviation fuel at the Customer's facilities, then aviation
fuel supplied to a CFC is drawn from the Customer's inventory and Avfuel will
account for that aviation fuel by issuing a credit to the Customer equal to the
Customer's cost for that aviation fuel, including applicable taxes, based upon the
Customer's cost for the last load of aviation fuel purchased from Avfuel prior to
the 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 taxes
imposed thereon by any local, state or federal taxing authority. Avfuel will
invoice and collect those charges and taxes from the CFC. Avfuel, as the seller
of all aviation fuel supplied to the CFC, will be the holder of and have the sole
right to exercise all lien rights under applicable law on the aircraft into which
that aviation fuel is supplied. hi addition to any lien rights which Avfuel might
possess as a result of services provided to a CFC, upon Customer's receipt of the
credit from Avfuel for the vouchers generated from the Customer's deliveries of
fuel to that CFC, the Customer automatically and irrevocably transfers to Avfuel
any lien rights that Customer has or may have with respect to any equipment or
other property owned by the CFC arising from such deliveries of fuel
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 the aviation
fuel enters into the aircraft of the CFC, at which point in time title will pass to
the CFC. In all sales of aviation fuel drawn from Customer's inventory, title to
that aviation fuel will be retained by the Customer until the point in time that the
aviation fuel enters into the aircraft of the CFC, at which point in time title 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. If, while
Avfuel holds title, any aviation fuel is lost or contaminated as a result of the acts
or omissions of the Customer, then the Customer will be liable to Avfuel for that
loss or contamination.
6. The into -wing services provided by the Customer in delivering the aviation
fuel to the CFC and any other services or products other than aviation fuel to the
CFC for which a fee is charged will be deemed sold by the Customer to the CFC.
The Customer's fees for into -wing services will be at a charge equal to the
lowest charge imposed by the Customer to any other purchaser of aviation fuel at
the FBO, less the discount that would be applicable to that charge under Avfuel's
Credit and Charge Card Acceptance Program (in that Avfuel will incur the
discount in collecting that charge from the CFC). All other services and products
will be supplied at the Customer's normally established rates. Such other
products may include, without limitation, lubricants, spare parts, food and other
Rev 10/10/12
Page 7 0
amenities. Such other services may include, without limitation, flowage fees,
tie -down 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 Customer 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 Customer to CFCs will be
provided in accordance with procedures and quality standards that are
commercially reasonable and that comply with all legal requirements in the
jurisdiction where the Customer's facilities are located. Customer 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 Customer to
the CFC will be payable solely to the Customer. The Customer will be
responsible for collecting and remitting any taxes imposed thereon by any local,
state or federal taxing authority. Customer may directly invoice and collect such
charges from the CFC. Alternatively, at the Customer's option, Customer may
assign to Avfuel for collection the account receivable from the CFC for other
products and services supplied by the Customer (a "CFC Receivable"). If the
Customer assigns a CFC Receivable to Avfuel, then Avfuel will issue a credit to
the Customer's account for the amount of that CFC Receivable and Avfuel will
thereafter invoice, collect and retain those charges from the CFC.
9. Any fees for any services supplied by the Customer in the delivery of aviation
fuel to a CFC, including, without limitation any flowage fees or into -wing fees,
will be earned by the Customer only after it has completed delivery of the entire
load 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, subject to the "most favored customer" provision in
Paragraph 6, Customer may change those fees upon seven (7) days written
Notice to Avfuel.
10. Customer will generate a written record (a "Ticket") of all aviation fuel
supplied to a CFC at the Customer's facility. Each Ticket will include the
following information: the CFC's name; the authorization number; pilot's name;
aircraft registration number; flight 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 Customer assigns to Avfuel the
CFC Receivable for other products and services supplied by the Customer to the
CFC, the Customer will include in the Ticket the 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 Customer that are separate
from and independent of the amounts charged by Avfuel 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 be 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 Customer for a period of five (5) years from the
invoice date and will be sent to Avfuel upon request. Avfuel will from time to
time provide Customer 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 Customer.
12. The total amount due with respect to each Ticket shall be paid or credited to
Customer's by Avfuel within ten (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 are: a) Customer wan -ants the validity of all charges,
and any charge that is disputed by the CFC, correctly or incorrectly, on grounds
that the charge is invalid or inaccurate or that the aviation fuel, products or
services supplied were unsatisfactory may be charged back to Customer at
Avfuel's option; b) charges not previously authorized by Avfuel may be charged
back to Customer 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 Customer at Avfuel's option.
14. Avfuel has invited the Customer to participate as a CFD in the CFD Program
on the expectation and condition that (a) the Customer's deliveries of aviation
fuel at the Delivery Addresses will be limited to deliveries to end users of that
fuel pursuant to direct sales by the Customer to those end users and deliveries to
purchasers listed as CFCs to facilitate direct sales by Avfuel to ose CFCs
Customer's Initials
f9
FBO Aviation Fuel Supply Agreement
pursuant to the CFD Program, (b) the Customer will make deliveries of aviation
fuel at the Delivery Addresses to purchasers listed as CFCs only pursuant to the
CFD Program and will not make direct sales to those CFCs and (c) except for
sales pursuant to the CFD Program to purchasers listed as CFCs for brokered
resale by those CFCs to end users, the Customer will not make any deliveries of
aviation fuel at the Delivery Addresses pursuant to brokered sales (i.e. sales to
end users in which a third parry receives a brokerage margin or commission or
other fee from the Customer or the end user or sales to third parties who resell
the fuel to end users). The Customer acknowledges that these conditions are
necessary to preserve Avfuel's continuing investment in developing and
maintaining the network of participating fixed base operators and participating
end users for the CFD Program and that Customer's failure to comply with these
conditions will result in Avfuel's exercise of the right pursuant to Section 15 to
discontinue the Customer's participation in the CFD Program.
15. Avfuel reserves the unilateral right to amend, suspend, or terminate the CFD
Program at any time effective upon written notice to the Customer. Customer
may withdraw from the CFD Program at any time upon 60 days Notice to
Avfuel. See Section 14 of the General Terms and Conditions regarding Notices.
Termination of Customer's participation in this Program shall not be construed
as terminating the Agreement or Customer's participation in any other Program.
AVSURANCE PRIMARY COMMERCIAL INSURANCE PROGRAM:
IF CUSTOMER HAS ELECTED TO PARTICIPATE IN THE
AVSURANCE PRIMARY COMMERCIAL INSURANCE PROGRAM
THE FOLLOWING WILL APPLY.
1. Customer has been invited to, and has elected to, participate in the Avsurance
Primary Commercial Insurance Program.
2. Customer agrees to file an application and request for a quote for all insurance
policies related to its aviation business. All price quotes from Avsurance contain
Avsurance proprietary information, are confidential, and may not be disclosed to
any person other than employees and agents of Customer with a bona fide need
to have such information and that have signed a non -disclosure agreement that is
satisfactory to Avsurance.
3. Customer 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 Customer's acceptance, Avsurance will bind the coverage and have the
policy issued in due course.
5. Avfuel reserves the unilateral right to amend, suspend, or terminate the
Program at any time effective upon written notice to the Customer. Termination
of this Program shall not be construed as terminating the Agreement or
Customer's participation in any other Program.
EOUIPMENT LEASE PROGRAM:
IF CUSTOMER HAS ELECTED TO PARTICIPATE IN AVFUEL'S
EQUIPMENT LEASING PROGRAM, THE FOLLOWING WILL APPLY.
1. Customer has elected to participate in Avfuel's Equipment Lease Program.
Accordingly, Avfuel, either for its own account or through one of its
subsidiaries, agrees to deliver and lease the equipment identified in the Special
Terms and Conditions (the "Equipment") at the lease rates shown in the Special
Terms and Conditions to Customer for its sole use. All additional equipment or
replacement equipment delivered to Customer but not listed in the Special Terms
and Conditions shall also constitute Equipment subject to the provisions of this
section. For example, Customer may lease POS equipment from Avfuel at the
then current lease price. Customer hereby agrees to pay Avfuel in advance the
monthly lease payments prorated for any partial month. Avfuel may increase the
rent during the term of the Lease upon 30 days written Notice. Customer 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 goes into
effect. If Avfuel rescinds the rate increase, the lease shall continue in effect at
the then current rates. If it does not rescind the increase, the lease shall expire on
the date the increase goes into effect. Unless otherwise agreed, the term of the
lease of each item of Equipment (a "Lease") shall correspond to the term of this
Agreement.
2. Customer 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 forty eight (48) hours of delivery. Upon termination of a Lease, Customer
shall return the Equipment, freight prepaid to Avfuel's place of business in Ann
Rev 10/10/12
Page 8 0
Arbor, Michigan in as good condition as when Customer received it, normal
wear and tear accepted. Failure to return the Equipment shall be deemed a
breach of this Agreement and Customer will be billed for necessary repairs and
the replacement of missing equipment.
3. Avfuel warrants that it has all necessary rights to lease said Equipment to
Customer. Further, the parties agree that as between themselves, Avfuel has title
to the Equipment and Customer shall keep the Equipment free of liens and shall
not do or permit anything to be done that will prejudice the title of Avfuel, or it's
rights in the Equipment. Each item of Equipment shall bear a legend denoting it
as the property of Avfuel and Customer shall not remove or deface that legend
under any circumstances. Customer also agrees and understands that Avfuel
may file such evidence of its ownership of the equipment as may be necessary in
the state where the equipment is located.
AVFUEL MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED,
REGARDING DEFECTS IN MATERIAL, WORKMANSHIP, DESIGN,
CAPACITY, MERCHANTABILITY OR FITNESS OF THE EQUIPMENT
FOR ANY PURPOSE, OR WHICH EXTEND BEYOND THE
DESCRIPTION OF THE EQUIPMENT THAT APPEARS IN THE
SPECIAL TERMS AND CONDITIONS.
4. Any of the Equipment that is used to store or transport Products shall be used
solely for storing or transporting Products supplied to Customer under this
Agreement. The Equipment shall not be moved from the facility to which it was
delivered nor operated on any public road without the prior written consent of
Avfuel. Customer will comply with all laws, ordinances and regulations
applicable to the possession, operation or use of the Equipment and will
demonstrate compliance upon request.
5. The maintenance obligations with regard to the Equipment are as follows.
5.1. Except as set forth in Section 5.2 below, Customer will maintain the
Equipment in as good a condition as it was on the day of delivery, normal wear
and tear excepted. Customer shall, at its sole expense, provide all preventative
maintenance (including but not limited to lubrication, oil and filter changes, etc.),
repairs, and replacement parts 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
the Equipment. Customer shall also be responsible for all meter calibration and
certification (meters are not calibrated or certified when delivered) and all tire
maintenance, repair, and replacement. CHANGING A TIRE ON A
REFUELER TRUCK IS VERY DANGEROUS AND MUST NOT BE
ATTEMPTED BY UNTRAINED PERSONNEL. CUSTOMER AGREES
THAT TT WILL PERMIT TIRES TO BE CHANGED ONLY BY AN
OUTSIDE CONTRACTOR WHO IS PROFESSIONALLY TRAINED TO
DO SUCH WORK. Customer shall keep complete and accurate maintenance
records and Avfuel is 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 that would be the responsibility of Customer may be
performed by Avfuel and billed back to Customer as additional rent. Customer
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 Avfuel.
5.2 Avfuel shall be responsible for the following refueler 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 are its obligation hereunder. Repairs and maintenance to
be performed by Avf iel shall be completed within a reasonable time after it
learns of the need for such repairs. Avfuel assumes no responsibility for loss of
use or any other items of ancillary damage, which may be caused by, or result to
Customer by reason of the fact that the Equipment becomes inoperable. If any
such repair or maintenance is required as the result of intentional conduct,
negligence, or failure to perform repair or maintenance on the part of Customer
or any of Customer's agents or employees, Customer shall be liable for all costs
associated with performing such repairs and/or maintenance.
6. Customer shall be responsible for all Federal, State, and Local taxes, fees, etc.
that are assessed on the use or value of the Leased Equipment, including but not
limited to, personal property, sales, and use taxes.
7. Customer shall secure insurance against any damage to or loss of the
Equipment with coverage equal to the actual cash value of the Equipment and
with the limitation of that coverage not less than the amount specified for that
Equipment in the Special Terms and Conditions, Insurance policies shall be
issued by insurance companies acceptable to Avfuel (which acceptance may not
be unreasonably withheld), shall name Avfuel, or its subsidiary as s payee,
Customer's Initials
f9
FBO Aviation Fuel Supply Agreement
and shall provide for at least thirty (30) days' written Notice to Avfuel prior to
cancellation or modification. Customer shall maintain such policies in full force
and effect for the equipment for so long as Customer continues to lease that
Equipment.
8. CUSTOMER 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 ATTORNEY'S FEES), OBLIGATIONS AND
CAUSES OF ACTION FOR INJURY TO OR DEATH OF
ANY AND ALL PERSONS, OR FOR DAMAGE TO OR
DESTRUCTION OF ANY OR ALL PROPERTY ARISING
OUT OF OR RESULTING FROM THE CONDITION,
EXISTENCE, USE OR MAINTENANCE OF THE
EQUIPMENT.
9. Avfuel reserves the unilateral right to amend, suspend, or terminate the
Equipment Lease Program at any time effective upon written notice to the
Customer. Termination of this Program shall not be construed as terminating the
Agreement or Customer's participation in any other Program.
Rev 10/10/12 Customer's Initials
Page 9 of 9