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HomeMy WebLinkAbout5065RESOLUTION N0, 5065 A RESOLUTION APPROVING AN AVIATION FUEL CONTRACT BETWEEN THE CITY OF PUEBIA AND PHILLIPS PETROLEUM COMPANY A DELAWARE CORPORATION AND AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE SAME BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO COLORADO, THAT: SECTION l: AN AVIATION FUEL CONTRACT BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION AND PHILLIPS PETROLEUM COMPANY A DELAWARE CORPORATION A COPY OF WHICH IS ATTACHED HERETO AND MADE A PART HEREOF BY REFERENCE AFTER HAVING BEEN APPROVED AS TO FORM BY THE CITY ATTORNEY, IS HERENY APPROVED. SECTION 2: THE PRESIDENT OF THE CITY COUNCIL IS HEREBY AUTHORIZED AND DIRECTED TO EXECUTE SAID CONTRACT FOR AND ON BEHALF OF THE CITY OF PUEBLO AND THE CITY CLERK IS DIRECTED TO AFFIX THE SEAL OF THE CITY OF PUEBLO THERETO AND ATTEST THE SAME, INTRODUCED November 22, 19 8 2 BY DOUGLAS L. RING COUNCILMAN APPROVED BY: A — _ - � �� 7 ••w ta, • s k• r BRANDED AVIATION DEALER SALES CONTRACT THIS AGREEMENT made and entered into by and between PHILLIPS PETROLEUM COMPANY, a Delaware copora- tion, hereinafter called "Phillips ", whose mailing address is 758 Adams Building, Bartlesville, OK, 74004, and Citv of Pueblo (an individual d /b /a/ (partners d /b /a (a corporation), whose mailing address is 31475 Bryan Circle, Pueblo, Colorado 81001 herein called "Buyer ": WITNESSETH: WHEREAS, Phillips is a refiner and marketer of aviation fuels, and Buyer desires to purchase from Phillips a supply of such fuels for resale; and WHEREAS, Phillips is agreeable to sell to Buyer aviation fuels, subject to applicable law and regulation, to availability of such fuels to it, and to the terms and provisions hereof; NOW THEREFORE, in consideration of the mutual covenants herein contained and other good and valuable consideration, Phillips and Buyer hereby agree as follows: 1. SALE AND PURCHASE. a. "Products" as used herein shall mean only those types of refined aviation fuels specified in this contract. b. Subject to the foregoing, estimates of maximum quantities of Products to be supplied hereunder are rea- sonable and necessary in order for Phillips to plan and schedule refinery runs and supply functions. Quantities of Products specified hereinafter are estimates of maximum quantities, established by agreement of Phillips and Buyer based upon antic- ipated availability of Phillips Products, Buyer's demonstrated needs for Phillips Products for the term of this contract or for the,first year if the term is for longer than one (1) year. c. Pursuant to the terms and provisions hereof and subject to availability of Products, Phillips agrees to sell to Buyer and Buyer agrees to purchase, receive and pay for, t roducts, as foiiows: (QUANTITIES IN THOUSANDS OF GALLONS) PRODUCT Phillips 66 Aviation Gass. JAN. FEB. MAR. APR. MAY JUNE JULY AUG. SEPT. OCT. NOV. DEC. ANNUAL TOTAL Grad. 100 24 16 16 24 26 24 .32 32 32 32 24 24 306 Phillips 66 Phll�ot A_ hili 130 130 130 101 72: 167 142 131 104 143 130 130 1510 d. In the event Phillips shall experience or anticipate a shortage of any specific Product(s), Phillips may at its sole discretion reasonably allocate the available quantity of such Product(s), to Phillips' purchasers who are directly or indirectly affected thereby, including Buyer, in an effort to avoid or limit any adverse impact of the experienced or anticipated shortage. It,is also understood and agreed that in the event of such an allocation by Phillips, Phillips may at its discretion further elect to offer to such purchasers, including Buyer, a substitute Product, or grade or type thereof, if available. Phillips shall not be obligated to purchase or otherwise acquire any additional quantities of Products from any third party in order to avoid or reduce the extent of any such allocation. e. Phillips is obligated, subject to availability of fuels and to the terms, provisions and limitations contained in this contract, to supply Products up to, but not in excess of, the above specified quantities during the respective month(s) of the term; however, the parties recognize that from time to time Buyer may desireto purchase quantities of Products during a given month in excess of or less than the specified quantities. Buyer shall place orders for Products so as to permit deliveries in substantially equal increments throughout each month. Should Phillips agree to sell Buyer Products during any particular month in excess of the specified quantities for that month, Phillips may at its discretion reduce the specified or permitted quantities in the next ensuing month(s) by an amount equal to the excess sold to Buyer. f. Unless agreed to the contrary by written amendment executed by both parties hereto, estimates of maxi- mum quantities of Products to be supplied during subsequent years, if any, of this contract shall be equal to the respective quantities actually purchased by Buyer during the corresponding period(s) of the immediately preceding contract year, not to exceed the above specified quantities for such corresponding period(s). Prior to the beginning of each subsequent contract year, Phillips shall furnish to Buyer written notification of the known, or if then unknown estimated, maximum monthly tities to be supplied during such contract year. g. Products shall be of Phillips' established specifications for respective Products at the time and place of each shipment. Phillips has the right to revise specifications or adopt new specifications at any time. Phillips has the right to discontinue at any time the sale of any Products in any geographic area in which any part of Buyer's marketing operations may be conducted, and if it does so, Phillips is relieved of all obligation to sell or deliver discontinued Products in such area(s). (1) FORM 8046 -5 9-80 2. DELIVERY. Unless thb parties agree that"Phillips shall provide the transportation to Buyer's destination, deliveries of each product hereunder shall be made in full transport truck.lots at the terminal(s) designated by Phillips at any time, and from time to time into Buyer's transport truck or into transport trucks arranged by Buyer for shipment at Buyer "s expense to Buyer's destination at the Memorial Airport, Pueblo, Colorado All equipment used for or in connection with transportation that enters any Phillips' supply 'source location must meet standards regarding such equipment then currently in existence as to that location. Buyer shall comply with any present and future rules and regulations of the U.S. Department of Transportation, Interstate Commerce Commis- sion, and all other federal, state and municipal authorities, applying to transport trucks and /or the products shipped in them. Regardless if Buyer or Phillips shall provide the transportation to Buyer's destination, the quantity of aviation fuel loaded into transport trucks at the point of loading shall constitute the basis of volumetric measurements of the quantities delivered hereunder. Such volumetric measurements shall be corrected in volume for temperature to a 60 °F. basis in accordance with then current petroleum volume correction factors (API Standard 2540 and ASTM Designation D1250), or at Phillips option, in accordance with a meter equipped with a temperature compensator, which corrected volume shall be the basis upon which payment shall be made. If Phillips shall provide the transportation to Buyer's destination, Buyer shall, at the time of arrival of the transport truck, furnish the driver of each transport truck with necessary directions respecting the placement of equip- ment at the appropriate unloading connection; and Buyer assumes all risk and responsibility for any loss resulting from mixing, contamination or adulteration of the aviation fuel, or from overfilling a storage tank, occurring in the unloading operation. Deliveries are to be made at mutually agreeable times. 3. PRICES. The price per gallon for Products sold and purchased hereunder shall be Phillips' wholesale basic price effective on date of shipment for the Product shipped f.o.b. the terminal from which shipment is made. However, in the event Product is delivered by Phillips to Buyer's destination, the price therefor shall be Phillips said price f.o.b. the terminal from which shipment is made, plus the applicable common carrier call and demand transportation rate from said terminal to Buyer's, destination. In the event Phillips, upon Buyer's request, does provide transportation to Buyer's destination, title to the Products so delivered shall pass to Buyer upon delivery of same into Buyer's storage tank at Buyer's destination. 4. TERM. This contract shall begin on April 1. 1982 and end on March 31:, 1985 5. TAXES. Any tax, license fee, inspection fee, or other charge imposed by any governmental authority or other agency on, or measured by gross receipts from, any Products covered hereby, or on the production, manufacture, transpor- tation, sale, use, delivery or other handling of Products or any component thereof, or on any feature thereof, or of this con - tract, or imposed on or measured by any rentals payable hereunder, existing at the time of any delivery hereunder or pay- ment of rentals '.hereunder, shall. be added to the price and rentals above specified and shall be paid by Buyer to Phillips if such tax, fee'or charge is required to be, or is, paid by Phillips. S. PAYMENT. Payment by Buyer of any sums due under this contract shall be made to Phillips in the manner and at the location(s) specified in writing by Phillips. Unless other terms of payment have been established by Phillips for Buyer, Buyer agrees to pay cash at time of or in advance of delivery for all Products purchased. If Phillips extends credit to Buyer, such extension shall be -upon such terms, conditions and requirements as Phillips shall specify from time to time and in effect on specific date(s) of delivery, and payment shall be made by Buyer in strict accordance with the terms, conditions, and requirements accompanying the extension of credit and with any additional terms regarding payment as established by Phillips in writing from time to time and in effect on date(s) of delivery. Phillips reserves the right to modify such credit terms at any time upon notice to Buyer. Phillips, reserves the right, upon notice to Buyer, to withdraw any or all credit extended and demand cash or specified payment funds on or in advance of delivery at any time from time to time whenever Phillips shall have,any doubt as to Buyer's financial responsibility. If Phillips so advises Buyer of a withdrawal of credit, Buyer shall then have the opportunity to satisfy Phillips as to Buyer's financial responsibility, and if Phillips is satisfied, deliveries may be resumed upon the credit terms'establishe:d for Buyer. Phillips may assess a delinquency charge on all sums owing to Phillips under this contract which are not paid in accordance with Phillips' established terms. By execution of this contract and ac- cepting Phillips' performance hereunder, Buyer agrees to pay Phillips' delinquency charge, if any, assessed in accordance with applicable law and Phillips' established delinquency charge policy in effect for the same class of customer on the date of delivery. Issuance of a "No Account" or "Insufficient Funds" check(s) to Phillips by Buyer in purported payment of any sum owed by Buyer,to Phillips shall be deemed a breach of the terms and provisions with respect to payment requirements under this dontract: Buyer's failure or refusal to comply with any payment requirement hereunder shall entitle Phillips to suspend deliveries pending payment in full by 'Buyer of all sums due hereunder, or to terminate this contract. 7. ACCEPTANCE OF CREDIT CARD CHARGES. So long as .Phillips has a credit card program Phillips shall accept proper credit card charges made by authorized holders of credit cards (issued or approved by Phillips), at locations both authorized,to display and.displaying Phillips' signs (leased to Buyer hereunder) in accordance with the,terms and provisions of Phillips' current Aviation Credit Card Guide. Identification of credit cards which may be accepted and rules and instructions for the honoring of credit cards and preparation of credit-card invoices are set forth in Phillips' Aviation Credit Card Guide. Phillips' Aviation Credit Card Guide, as revised from time to time and as in effect at the time of acceptance of credit card charges, is incorporated herein in its entirety by reference. Buyer agrees to abide by the terms and provisions thereof and specifically acknowledges that upon violation thereof, Phillips may charge invoices back to Buyer's account. A violation by Buyer of the terms and provisions of Phillins fnr the hnnnr ng of credit nards shall be a breach of this contract. Phillips shall supply Buyer adequate quantities of its Aviation Credit Card Guide as revised from time to time. Nothing herein shall be construed as an obligation of Phillips to continue in effect any credit card program. B. TRADEMARK AND BRAND PROTECTION. a. As to Products sold and purchased under this contract, Phillips permits Buyer to inform the public that,Buyer has Phillips trademarked and branded products for sale. for such purpose, Phillips will make available to Buyer Phillips 66 shield signs and graphic materials under Paragraph 10 hereof for use in the display of Phillips'trademarks, brands, logotypes and other commercial symbols. (2) b. All renditions of Phillips' trademarks, brands, logotypes or other commercial symbols furnished to Buyer shall at all f=ides remain the property of Phillips and shall be returned to Phillips upon demand at Buyer's expense. If Buyer places or causes to be placed any sign, emblem or decal or any other rendition of any Phillips' trademark on any property whatsoever, Buyer agrees to remove any such sign, emblem decal or trademark from such property immediately upon any termination hereof and upon demand by Phillips or upon sale or other loss of possdssion of such property on which said trade- mark is displayed. Buyer will not use any trademark of Phillips in any manner other than to inform the public that Buyer has Phillips trademarked products for sale as above specified. Buyer agrees that upon termination of this contract for any reason whatsoever, Buyer shall discontinue immediately all use in any manner pursuant hereto of any of Phillips' trademarks. Nothing herein contained shall be deemed a lease or license by Phillips of its trademarks or brand names. c. Buyer shall not sell or offer for sale any non - Phillips aviation fuels or other refined petroleum products under any Phillips' trademark or brand or any trademark or brand confusingly similar to a trademark or brand of Phillips or under circumstances which would lead the public to believe such products are Phillips Products. With regard to products sold under any of Phillips' trademarks or brands, Buyer shall not (1) adulterate any of such products in any way, (2) mix any of such products with any other of such products, (3) sell any such product as or hold any such product out as being another of such products, or (4) contaminate any such product in any manner. d. Buyer shall keep legible and visible all trademarks, brand names, and signs of Phillips when displayed at any location and shall display such trademarks, brand names, and signs only in a manner recommended or approved by Phillips. e. To the extent that Buyer purchases any aviation fuels other than Phillips trademarked products,.Buyer shall have adequate facilities to keep such products segregated at ail times from Phillips trademarked products and to trans- port, store, distribute and sell in such manner as clearly to avoid any misunderstanding by the public, or any segment thereof, that such products might be Phillips trademarked products. f. Buyer shall ensure to Phillips the right at all reasonable times to visit properties on which any rendition of Phillips' trademarks and brands may be displayed, for the purpose of ascertaining that its trademark rights are not being infringed upon. g. Buyer agrees to cooperate fully with Phillips in protecting the integrity of Phillips'trademark rights. If Buyer shail 'in any manner operate his business, or in any manner engage in any activities, so as to violate any of Phillips'trademark rights, Phillips, in addition to any other rights or remedies available hereunder, may terminate this contract, insofar as any use or display of Phillis' trademarks as permitted hereunder may be concerned, and remove any rendition of such trademarks which may be in place, or may terminate this contract in its entirety. 9. ALTERATION OF TRADEMARKS OR BRANDS. Phillips shall have the right at anytime during the term of this con - tract to change, alter, or amend any of the trademarks or brands under which Products covered by this contract are now or may hereafter be marketed. If Phillips shall at any time discontinue the marketing of any or all Products above specified in any geographic area in which any part of Buyer's marketing operations are conducted, Phillips shall be relieved of all obliga- tion to sell or deliver such discontinued Products to Buyer for Buyer's use in connection with his marketing operations in that area. 10. LEASE OF SIGNS, EMBLEMS AND IMPRINTERS. a. Lease. Pursuant to the terms and provisions herein set forth, Phillips hereby leases to Buyer Phillips 66 shield signs, emblems, Credit Card Imprinters and other graphic materials, for use only at Buyer's business location above specified, as follows: ( — monthly rental of $ — — — [No.], — — — — _ — — , internally lighted plastic Phillips 66 shield sign(s), at a — — — - — , payable — — — — — — — — — — in advance, from date hereof until —, then $ — — — — — — , payable — — — — — — — in advance, plus applicable taxes. (2) Such quantity of porcelain enamel or unlighted plastic (not internally lighted) Phillips 66 shield signs as Phillips may deem necessary for adequate, display of Phillips' trademarks as identified by appropriate description on a . Material and Equipment Transfer" form, to be signed by Buyer for identification at respective times of delivery of signs leased hereby, and incorporated herein fully by reference; (3) Such quantity of emblems, decals and other graphic materials displaying Phillips' trademarks, brands, logotypes or other commercial symbols, as Phillips, in its discretion, shall deem sufficient; and (4) 2 [No.] imprinters at an annual rental of $30.00 each, plus applicable taxes, computed and payable as hereinafter set forth. Rental amounts with respect to item (1) through (4) above may be adjusted by Phillips upon written notice to Buyer; and any additions, replacements or alterations thereof as may be mutually agreed upon from time to time as reflected by written amendment hereto (as to internally lighted plastic signs) or Material and Equipment Transfer forms (as to unlighted signs), and appropriate imprinter records of Phillios in its Bartlesville, Oklahoma office as are notified in writing to Buyer (as to imprinters), which shall be deemed to have been leased hereunder on the respective dates of physical delivery to Buyer. Deletions shall be deemed released herefrom on the respective dates of actual return to Phillips.. b. Sign and Imprinter Rentals. Buyer shall pay to Phillips as rentals or lighted signs the total of all rental amounts listed herein or in any future amendment hereto as may be mutually agreed upon. Sign rentals shall be computed on a monthly basis but shall be paid in advance on a monthly, quarterly, semi - annual or annual basis at Buyer's option. Imprinter rentals shall be payable annually in advance. (3) FORM 8046 -S 9 -80 c. Use. Signs, emblems and other graphic materials are furnished for the sole purpose of alloWing resellers of Phillips trademarked aviation fuels to inform the public that such resellers have Phillips trademarked aviation fuels for sale. Signs, emblems, materials and imprinters shall, at all times, remain the property of Phillips; Buyer shall have no right to encumber, remove or dispose of any of them; and Buyer shall not permit anything to be done to the prejudice of Phillips'title to them. Buyer shall not use any of such signs, emblems, materials and imprinters in any manner in aid of, or which might be construed as supporting, any unlawful activity. Phillips shall have the right to replace imprinters from time to time with equipment of like kind and quality and to remove any imprinter without replacing with Like equipment upon refunding to Buyer the unearned portion of the rental for the same. Buyer agrees to take reasonable precaution in the care of imprinters and to be responsible for loss or damage thereto, usual wear and tear alone excepted. Any signs, emblems, other graphic materials and imprinters held by Buyer under this contract and not in current use shall be kept in safe and secure storage furnished by Buyer. d. Installation, Operation and Maintenance. As to internally lighted plastic signs leased hereby, where the base of the sign is thirteen feet (13') or less above the foundation of the sign, Phillips will install all such signs at Phillips sole cost and expense, including necessary electrical connections, sign supports and foundations for same; however, Buyer shall provide at its expense all necessary electrical service to the sign supports where the signs are to be installed. Buyer shall install at Buyer's sole cost and expense all other signs and materials including all necessary electrical connections, sign supports, and foundations for.those internally lighted plastic signs where the base of the sign is over thirteen feet (13') above the foundation of the sign. Buyer agrees that it shall secure and pay for any permits required for installation of signs and pay all charges for electricity to operate and illuminate all signs from date of installation or periodic inspection fees, license fees, excise charges and taxes and assessments (other than ad valorem taxes) which may become payable by reason of the existence or use of the signs. Buyer shall at all times comply with all laws, ordinances and regulations applicable to the signs and materials, the use and operation thereof, and the premises on which they are installed'or used, holding Phillips harmless from all claims, demands, suits and liabilities of every character whatsoever and howsoever arising from the existence, use or operation of the signs and materials. BUYER TAKES AND ACCEPTS THE SIGNS AND MATERIALS LEASED HEREBY IN AN "AS I'S" CONDITION, WITHOUT ANY WARRANTY, EXPRESS OR IMPLIED, AS TO MERCHANTABILITY, CONDITION OR FITNESS FOR ANY PURPOSE. Buyer shall at all times operate and use the signs so as to keep them in good order and repair. Phillips agrees to perform, at its sole cost and expense, all necessary maintenance to the internally lighted plastic signs during the term of this contract; provided, however, that all repairs required as a result of negligence or misuse by Buyer, its agents and employees shall be made by Phillips at Buyer's cost and expense. Buyer shall promptly notify Phillips in writing of any maintenance or other service required to the internally lighted plastic signs, regardless of the cause for maintenance or service being required. All other signs and materials shall be maintained and repaired at Buyer's sole cost and expense. Buyer shall ensure to Phillips full rights of ingress and egress to and from Buyer's premises in order to permit Phillips to install, repair, maintain, remove and /or inspect said signs and materials. e. Termination and Redelivery. This Lease of Signs, Emblems and Imprinters maybe terminated by Buyer, either totally or partially as to individual signs or imprinters, at any tirYle by giving Phillips at least thirty (30) days' advance written notice. In addition to any right of Phillips to terminate this contract, Phillips shall have the right to terminate these lease provisions partially as to signs, emblems and other graphic materials displayed at Buyer's premises if (1) such specific premises shall no longer be in use for the sale of Phillips trademarked aviati ^n filais or (2) if any Ma; t ci the operation of the l usiress cf's,;cfN prbaiiisa,; snail in any manner oe in violation of Phillips'trademark rights or in violation of applicable laws or regulations relating to operation of the premises, or (3) if the conduct of the business operation at the premises is improper or constitutes a failure to operate in a clean, safe and healthful manner, where the improper conduct or failures are of such persistent, continuing or recurrent nature, or of such severity, as to constitute a clear and present danger to the health or safety of persons on or near such premises or to indicate a willful or careless disregard of their health or safety, or of reason- able cleanliness, health or safety standards. Notice of any termination by Phillips of these lease provisions with respect to signs, emblems and other graphic materials, either totally or partially, shall be made as provided in Paragraph 11 hereof. Upon any termination of this contract, rentals shall be prorated to date(s) of termination. If these lease provisions are term- inated for any reason, either entirely or partially, and irrespective of whether this entire contract may also be terminated, Buyer agrees to remove and return at Buyer's expense the affected signs, emblems, materials and imprinters, properly crated or packaged, within thirty (30) days to a place of storage then designated: by Phillips or to permit Phillips, or its agents, employees or contractors, to remove the signs, emblems, materials and imprinters at Buyer's cost and expense. Buyer shall remove all signs, emblems, materials and imprinters from any of Buyer's premises which cease to be used for the sale of Phillips trademarked aviation fuels within fifteen (15) days following such cessation and shall return such signs, emblems, materials and imprinters to Phillips in like manner as above provided or, at the option of Buyer if these lease provisions. partially remain in effect, store the same in Buyer's storage warehouse. Buyer's obligation to pay rentals as to specific signs and imprinters shall continue in all instances until such signs and imprinters are returned to Phillips as herein provided. 11. NOTICES. All notices which are required or which may be given hereunder shall be in writing unless specif- ically provided otherwise; provided, however, that notices given relative to Paragraphs 3 and 6 hereof shall, where practicable, be given initially by telephone and confirmed in writing in the same manner provided for other notices. Notices in writing shall be properly given if delivered personally or sent by United States mail, postage prepaid, duly addressed to the appro- priate party at the respective address above listed. Notices of termination and of nonrenewal, if sent by United States mail, shall be posted as certified mail with return receipt requested. The date of service of a notice served by mail shall be deemed to be the date on which the notice is deposited in the United States mail. ! Pr co , i hond!P distribute and sell any Products which contains,lead alkyl in accordance with the rules and regulations naw in existence or which may hereafter be issued by the suppliers of lead alkyl, the Office of the Surgeon General of the United States Public Health Service, the Department of Health and the state and /or municipality, where the sales and distribution of such gasoline take place, and /or any other govern - mental agency having jurisdiction. Buyer's employees shall be properly instructed with regard to said rules and regulations. Phillips reserves the right to terminate this contract insofar as it affects Products which contain lead alkyl if Buyer violates the provisions of this paragraph or if the agreement between the suppliers of lead alkyl and Phillips for the sale of Ethyl antiknock compounds is canceled for any reason. If Phillips exercises its said right to terminate partially this contract, all obligations of Phillips to deliver under this contract Products which contain lead alkyl shall cease, but this contract in all other respects shall remain in full force and effect. (4) ' 13. COMPLIANCE WITH LAW. Buyer shall price all products and services as , Buyer may determine. Buyer shall not engage in any practice in violation of any federal, state., county or municipal laws, ordinances, rules and regulations, now in exLstence or which may hereafter be enacted or promulgated from time to time, relating to the purchasing, storing, handling, distribution, allocation, dispensing, sale or pricing of petroleum products, but shall operate its business in all respects and at all times in full compliance with such laws, ordinances, rules and regulations. Buydr represents and agrees that it shall act in good faith to become aware of such laws, ordinances, rules and regulations relevant to operation of marketing premises and that Buyer shall have its employees properly instructed with regard to same. Buyer further agrees that it will cooperate fully with Phillips and use its best efforts to assist Phillips in complying with any applicable laws, ordinances, rules and regulations which Phillips may be required to observe in connection with this contract or Buyer's operations under this contract, including, but not 1'imted to; the giving of notice to Phillips by Buyer, or the taking of specific actions or refraining from acting, as appro- priate under the circumstances. Buyer also agrees to comply fully with any requirement for the posting of octane ratings or the making of other postings, notices or notifications. Buyer agrees to defend and hold Phillips harmless from any violation(s) and /or alleged violation(s) by Buyer of such laws, ordinances, rules and regulations. 14. FORCE MAJEURE. No failure or omission by Phillips in the performance of any obligation of this contract shall be deemed a breach of this contract nor create any liability for damages if same shall arise from any cause or causes beyond Phillips control, including but'not limited to: Acts of God, war, accident, fire, storm, flood, earthquake, explosion, acts of or compliance with requests of federal, state or local government or any agency thereof, strike, lockout, disputes with workmen, labor shortages, transportation embargoes or failures or delays in transportation, unavailability of suitable transport trucks or,parts therefor, or exhaustion, reduction, or unavailability of Product(s) at the source of supply from which deliveries are normally made hereunder, or exhaustion, reduction or unavailability or delays in delivery of any product or material neces- sary in the manufacture of Products, including crude oil, natural gas, natural gasoline, supplies, raw materials, and ingre- dients or from any cause beyond Phillips' exclusive control. Likewise, if Phillips should experience or anticipate an exhaustion, reduction or unavailability of any Products at or more of its sources of supply, regardless of the cause therefor or of the source from which deliveries are normally made hereunder, any resulting nonperformance by Phillips shall not be deemed a breach of this contract or create any liability of'Phillips for damages, and Phillips shall have the right, to the extent that it becomes necessary within Phillips' sole judgment, to designate a temporary alternate source of supply as point of shipment and /or designate another Product(s) as a temporary substitute. Products) and /or reduce the supply of that (those) Product(s) •to be delivered to Buyer in order for Phillips to make deliveries to its other customers directly or indirectly affected by such exhaustion, reduction or unavailability. In this latter event the quantity to be delivered to Buyer will only be reduced to the extent necessary for Phillips to allocate equitably its available Product(s) to all directly or indirectly affected customers, including Buyer. In the event of any circumstance, referenced or described in this paragraph, this contract shall not be extended thereby but quantities specified herein shall be adjusted accordingly. Notwithstanding any other provision of this agreement to the contrary, Phillips shall not be obligated to purchase. or otherwise acquire any additional quantities of Products from any third party in order to avoid or reduce the impact of any said circumstance. No formal notice is necessary to invoke the provisions of this paragraph. The provisions of this paragraph shall be applicable and fully available at any time and from time to time without regard to the facts and circumstances existing at the time of execution hereof. 15. INDEMNIFICATION. This contract is and always shall be construed as a contract of purchase and sale and not a contract of agency. There shall be no liability on the part of Phillips for any actions or defaults of Buyer, its employees or agents, and Buyer agrees to defend, indemnify and save Phillips and its agents and employees harmless from and against any and all claims, demands, losses, liabilities, causes of action, costs and expenses (including attorneys' fees) of whatso- ever nature, as a result of injury to or death of any person(s) whomsoever (including, without limitation,'the persons or property of Buyer or Buyer's employees, agents, or customers), or for damage to or destruction of any or all property, or any other interest or thing of value, directly or indirectly arising out of this contract, or the storage, handling, distribution, sales or use of any Products purchased hereunder or otherwise arising out of this contract, or the use of signs furnished hereunder, or the conduct of Buyer's business related thereto. Buyer acknowledges its exclusive liability for all contributions and payroll taxes, city, county, state and federal, and all other obligations of an employer of labor (including, but not limited to, workmen's compensation insurance) as to all employees of Buyer engaged in performance of work related to this contract. 16. CONFORMANCE TO LAW. If any provision(s) of this contract or its application is contrary to any valid, appli- cable law, ordinance or regulation and is held invalid, such provision(s) shall be deemed to be severable and striken from the contract or modified so as to conform this contract to existing law, ordinance or regulation for so long as such law, ordinance or regulation remains effective; however, such invalidity shall not affect other provisions of this contract which can be given effect without the invalid provision or application. If any valid, applicable law, ordinance or regulation grants or extends to either party hereto any rights, remedies or interests not specifically provided for herein, this contract shall be deemed to be modified as necessary to allow the respective party hereto to have any such rights, remedies or interests. Should any valid, applicable law, ordinance or regulation prohibit or require the inclusion herein of any specific provision(s), including but not limited to, requirements for the giving of notice for termination or for other purposes, specific lengths of time that notice shall be given or means of delivery of notice, making of specific disclosures, times for effecting remedies of any deficiency or default, specific causes for termination, rights of either party to terminate the contract (whether for cause or not, and with or without notice), or other items or comments, and this contract might be deemed in violation in the absence of amendment or modification, this contract shall be deemed to be modified as necessary to bring it into conformance with such law or regula- tion. If it should be deemed necessary or appropriate that this contract be amended in writing to avoid violation of such law or regulation, or to grant or extend to either party rights, remedies or interests as hereinabove discussed, the parties agree that they shall enter into and execute a written amendment to conform this contract to such law, ordinance or regulation. 17. TERMINATION. a. Recitals. It is the essence of this contract that Buyer and Phillips shall comply with its terms and provisions. Consequently, a failure of one party to comply with such terms and provisions orto perform obligations herein imposed shall render this contract subject to termination at the option of the other party, in accordance with the provisions of this contract. b. Termination without Cause. Either party may terminate this contract on any•anniversary date hereof (if the term hereof is for more than one (1) year) without any necessity of good cause existing therefor by giving written notice to the other party at least ninety (90) days in advance of the anniversary date to be the effective date of termination. (5) • FORM 8016 -S 9 -80 c. - Termination for Cause. (1) Manner. Either party may terminate this contract at anytime for good cause by giving the other party written notice of termination which shall state (a) the grounds for termination, (b) the date of termination and, (c) at the sole option of the party giving such notice, any remedial measures and any grace period available to the other party to effect a remedy to such cause(s) to avoid termination. Such notice shall be given at least.ninety (90) days in advance of the effective date of termination, except in circumstances in which it would not be reasonable to give at least ninety (90) days' notice, in which event such notice shall be given on the earliest date that is reasonably practicable. (2) Grounds for Termination. The parties recognize and agree that either party shall have any and all rights of termination on any grounds, bases or reasons which may be permitted, available or expressly provided for at any time or from time to. time under valid, applicable law; in addition either party shall have the right to terminate this contract for any other good cause which shall include, but not be limited to, the following: (a) Failure by a party to pay to the other party in timely manner when due all sums to which such other party is legally entitled hereunder; (b) Fai.lure to comply with federal, state, or local laws or regulation in any manner relevant to this contract; (c) Fraud or criminal misconduct by the other party in any manner relevant to this contract: party; and (d) Declaration of bankruptcy or institution of any insolvency or receivership proceeding by or against either (e) Breach of any provision of this contract. 18. RENEWAL. If at the end of the term hereof there does not exist under valid, applicable law, regulation or judicial or administrative order a provision creating a right in Buyer to renew this contract, then Buyer shall have no right of renewal under this contract. If, however, a provision exists at that time creating or purporting to create a right in Buyer to a renewal hereof, then such right or purported right of renewal shall be subject to any and all rights of Phillips to nonrenew this contract on any-grounds, bases or reasons which may be permitted, available or expressly provided for under valid, appli- 'cable law, regulation, judicial or administrative order, or any other authority having jurisdiction of the matter. Any notice of 4 nonrenewal shall be made in like manner as set forth in Paragraph 11 above with respect to notice of termination. 19. WAIVER. The waiver of any breach of any convenant, condition or stipulation contained herein shall not constitute a waiver of any subsequent breach of the' same or any other covenant, condition or stipulation. Any failure of Phillips to enforce rights or seek remedies upon any default of Buyer with respect to the obligations of .Buyer hereunder, or any, of them, will not prejudice or affect the rights or remedies of Phillips in the event of any subsequent default of Buyer. . Election by Phillips of one remedy hereunder for a breach by Buyer shall not be deemed to be the exclusion of any other remedy to Phillips. 20. RELATIONSHIP OF PARTIES. Buyer is an independent businessman. Buyer is not an employee of Phillips. Buyer's employees are not employees of Phillips. 'Phillips and Buyer are completely separate entities, are not partners, general partners, limited partners, joint venturers or agents of each other in any sense whatsoever. Neither Phillips nor Buyer has the power to obligate or bind the other. Nothing in the provisions of this contract shall be construed as reserving to Phillips any right to exercise any control over the business or operations of the Buyer or to direct in any respect the manner in which such business and operations shall be conducted. Likewise, nothing herein shall be construed as creating any relationship whatsoever between Phillips and any customer of Buyer. 21. TERMINATION OF PRIOR CONTRACTS. This contract terminates and supersedes all prior contracts between the parties dealing with the same or similar subject matter as is the subject matter of this contract, subject, however, to all rights accruing under said prior contracts before the date of termination thereof. 22. ENTIRETY OF AGREEMENT. THIS CONTRACT CONTAINS THE ENTIRE AGREEMENT BETWEEN THE PARTIES HERETO AND THERE ARE NO ARRANGEMENTS, AGREEMENTS, PROMISES OR WARRANTIES, ORAL OR WRITTEN, EXPRESS OR IMPLIED,. AFFECTING IT OR THE SUBJECT MATTERS HEREOF. NO CHANGE IN, ADDITION TO, OR WAIVER OF ANY PROVISION OF THIS CONTRACT SHALL BE EFFECTIVE UNLESS IN WRITING AND SIGNED BY BOTH PARTIES HERETO. 23. EXECUTION, ASSIGNABILITY, BINDING EFFECT. THIS AGREEMENT SHALL BECOME BINDING UPON PHILLIPS ONLY AFTER IT HAS BEEN EXECUTED BY ITS MANAGER OF AVIATION SALES OR ONE OF ITS VICE PRESIDENTS. Commence- ment of performance hereunder prior to signing by Phillips as herein stipulated shall in no case be construed as a waiver by Phillips of this requirement, but any sales made before signing shall be deemed to have been made under the terms and provi- sions hereof. When duly executed, this contract shall be binding upon and shall insure to the benefit of the parties hereto, their respective heirs, executors, administrators, successors and assigns; provided, however, that Buyer shall not assign this contract in whole or in part without the prior written consent of Phillips. (6) ENTERED INTO this -T — day of , 19 WITNESS: PHILLIPS PETROLEUM COMPANY BY ATTEST: CITY OF PUEBLO 4� BY " ,' • - * -- AP AS TO FORM: PRESIDENT OF CITY COUNCIL T HOMAS CITY, ATTO PIUPr [If Buyer is a corporation, the exact corporate title must be shown, the President of the corporation should sign on behalf of Buyer, the contract should be attested by the appropriate official of Buyer, and the corporate seal should be affixed hereto.] [If Buyer is a partnership, the signature of each general partner should be obtained.] r (7) FORM 8046 -5 9 -80