HomeMy WebLinkAboutContract 46422-A1 CITY SECRETARY
CONTRACT NO. ( a a-A
AMENDMENT TO FUEL FARM MANAGEMENT AGREEMENT
THIS AMENDMENT TO FUEL FARM MANAGEMENT AGREEMENT (this
"Amendment") is entered into as of February 5, 2019, by and between CITY OF FORT WORTH, a
Texas home rule municipal corporation("Owner"), as successor in interest to Alliance Airport Authority,
Inc., a nonstock, nonprofit industrial development corporation, and AT FUEL SERVICES, LLC, a
Texas limited liability company("Manager").
WITNESSETH
WHEREAS,Alliance Airport Authority,Inc. and Manager were parties to that certain Fuel Farm
Management Agreement dated as of February 5, 2015 (the "Management Agreement") regarding the
Alliance Fort Worth Maintenance Base,located in Fort Worth,Texas(the`Base");and
WHEREAS, Alliance Airport Authority, Inc. did assign all of its right, title and interest in the
Management Agreement to Owner on February 5,2015;and
WHEREAS, Owner and Manager desire to amend the Management Agreement to extend the
term,to allow Manager to use the Fuel Farm to provide fueling services to customers who are not tenants
of the Base,and to provide for fees for the various users of the Fuel Farm,among other amendments.
NOW,THEREFORE,for the mutual covenants contained herein and for other good and valuable
consideration,the receipt and sufficiency of which are hereby acknowledged,the parties hereto agree as
follows:
1. The second sentence of Section 1 of the Management Agreement is hereby modified to
read in its entirety as follows:
"For purposes of this Agreement, the Meter and Tenant Pipe Segment, as both are
described within one Facilities Lease Agreement dated as of December 19,2017 between City
of Fort Worth and Roll-Royce North America Inc., shall be considered part of the Fuel Farm
for purposes of this Agreement."
2. Section 3(a) of the Management Agreement is hereby modified to read in its entirety as
follows.
"(a) Term/Termination Without Cause. The term of this Agreement shall
commence on February 5, 2015 and expire on December 31, 2027 ("Initial
Term"). The term of this Agreement will be automatically extended for two (2)
consecutive 60-month periods beginning on the date the Initial Term expires
(each,a"Renewal Term")unless Manager notifies Owner in writing no later than
180 calendar days prior to the last day of the Initial Term or a Renewal Term as
may be applicable, that it desires for the Agreement to terminate on the last day
of the then current Term (Initial or Renewal). Prior to the date this Agreement
terminates,Owner and Manager shall continue to perform all of their obligations
under this Agreement. Notwithstanding anything in this Agreement to the
contrary,Manager and Owner will have the right to terminate this Agreement for
any reason and at any time upon at least one hundred eighty(180)calendar days'
prior written notice to the other Party."
1294764
L0111CIALRECORD
ETARY
TH,TX
3. Section 3(b)(i)(A) of the Management Agreement is hereby modified to read in
its entirety as follows:
"(A) A Party fails to observe or perform any of the material covenants, conditions or
provisions of this Agreement, and such failure continues for a period of thirty(30) days
following such Parry's receipt of written notice thereof from the other Party,which notice
specifically describes the default in question; provided, however, that in the event such
default is not capable of being cured within such thirty (30) day period, the defaulting
Party shall be given such additional time as is required to cure such default so long as the
defaulting Party commences such cure within such thirty (30) day period and diligently
prosecutes the cure to completion within sixty (60) days following receipt of the written
notice described herein;"
4. The last sentence of Section 3(b)(ii)of the Management Agreement is hereby modified to
read in its entirety as follows:
"In addition,within ninety(90) days after the termination date, Manager shall (i) vacate
any space in the Property provided by Owner for the use of Manager; and (ii)remove all signs
that are placed at any location on the Property stating the name of Manager and repair any
damage caused by the removal of such signs."
5. The title to Section 4 of the Management Agreement is hereby modified to read in its
entirety as follows:"Fees and Expenses."
6. Section 4(a)of the Management Agreement is hereby deleted and replaced in its entirety
as follows:
"(a)Tank User Fee.As consideration for the right to use the Fuel Farm to store fuel for
and to sell fuel and provide general fueling services (the "Fueling Services")to tenants and non-
tenants of the Base, as described in Section 5(a), Manager shall pay to Owner an amount per
month("Tank User Fee"),as follows:
(i) For the Initial Term, an amount of Four Hundred and 00/100
Dollars (US $400.00) per month, such amount to be prorated for any partial
calendar month;
(ii) For the first Renewal Term, an amount of Four Hundred Twenty
and 00/100 Dollars($420.00)per month; and
(iii) For the second Renewal Term,an amount of Four Hundred Forty
and 00/100 Dollars($440.00)per month;
Notwithstanding the foregoing, the Tank User Fee to be charged to Manager shall not
exceed that charged at any other airport under the jurisdiction of Owner or any agency
affiliated with Owner.
7. Section 4(b)is hereby deleted and replaced in its entirety as follows:
"(b)Fuel Farm User Fees.
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G) In addition to other fuel related charges, Manager shall
assess a fee to each tenant of the Base obtaining fueling services from the
Fuel Farm("Tenant Fuel Farm Fee"). The Tenant Fuel Farm Fee shall be
assessed monthly in a sum equal to ten percent (10%) of the total
revenue from fuel sales to such tenant during the month (after reducing
the cost of goods sold,which is the cost of the product plus all applicable
taxes and transport cost). The terms and provisions of this Section 4(b)(
i), including references to "fuel sales" shall apply no matter if fuel is
purchased by the Base tenant or by Manager(for sale to the Base tenant).
Not later than fifteen (15) calendar days following the last day of each
Owner fiscal year quarter commencing July 15.2019,Manager shall pay
to Owner all Tenant Fuel Farm Fees received by Manager from Base
tenants pursuant to this Section 4(a)(i) during the applicable calendar
quarter.
(ii) In addition to other fuel related charges, Manager shall
assess a fee to each non-tenant of the Base obtaining fueling services
from the Fuel Farm("Third Party Fuel Farm Fee").The Third Party Fuel
Farm Fee shall be assessed monthly in a sum equal to fifteen percent
(15%) of the total revenue from fuel sales to such non-tenant during the
month (after reducing the cost of goods sold, which is the cost of the
product plus all applicable taxes and transport cost). The terms and
provisions of this Section 4(b)(ii), including references to "fuel sales"
shall apply no matter if fuel is purchased by the non-tenant of the Base or
by Manager(for sale to a non-tenant of the Base).Not later than fifteen
(15) calendar days following the last day of each Owner fiscal year
quarter commencing July 15, 2019, Manager shall pay to Owner all
Third Parry Fuel Fane Fees received by Manager from non-tenants of the
Base pursuant to this Section 4(a)(ii) during the applicable calendar
quarter.
(iii) In addition to other fuel related charges, Manager shall
assess a fee to any entity contracting with Manger who is in any way
affiliated with the Defense Logistics Agency ("DLA") or any other
agency, unit or part of the United States Department of Defense
("DOD") or pursuant to any contract that Manager may have with the
DLA or DOD (any of such fees to be herein referred to as "Defense
Department Fees"). Each such entity in any way affiliated with the DLA
or DOD obtaining fueling services from the Fuel Farm shall be assessed
monthly in a sum equal to seven percent(7%) of the total revenue from
fuel sales to such entities during the month (after reducing the cost of
goods sold,which is the cost of the product plus all applicable taxes and
transport cost). The terms and provisions of this Section 4(b)(iii),
including references to "fuel sales" shall apply no matter if fuel is
purchased by the DLA or DOD affiliated entity or by Manager(for sale
to a DLA or DOD affiliated entity). Not later than fifteen (15) calendar
days following the last day of each Owner fiscal year quarter
commencing July 15, 2019, Manager shall pay to Owner all Defense
Department Fees received by Manager from DLA or DOD affiliated
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entities pursuant to this Section 4(a)(iii) during the applicable calendar
quarter.
(iv) Owner shall promptly establish an interest bearing
capital reserve banking account (the "Fuel Farm Capital Reserve
Account"). A minimum of one-third(1/3) of the Tank User Fees,Tenant
Fuel Farm Fees, Third Party Fuel Farm Fees and Defense Department
Fees (collectively, the "User Fees")paid to Owner by Manager shall be
deposited (promptly upon receipt from Manager) into the Fuel Farm
Capital Reserve Account and used by Owner exclusively for capital
repairs, expenditures and maintenance to and for the Fuel Farm or
reimbursement to Manager for the cost of the same as may be otherwise
permitted hereunder,including any and all described within Exhibit B to
this Agreement (which shall remain the sole responsibility of Owner).
Such deposits into the Fuel Farm Capital Reserve Account shall continue
until such Account equals a sum of not less than Two Hundred Fifty
Thousand and 00/100 Dollars (US $250,000).The Owner may use the
remaining amount of the User Fees(which shall never exceed two-thirds
of the User Fees paid to Owner by Manager) for improvements and
maintenance of the Base. Notwithstanding anything herein to the
contrary,should the balance in the Fuel Farm Capital Reserve Account at
any time reach or exceed Two Hundred Fifty Thousand and 00/100
Dollars (US $250,000)but subsequently be reduced below such amount
due to payment for capital repairs, expenditures and maintenance to and
for the Fuel Farm or reimbursement to Manager for the cost of the same,
or is otherwise reduced below such amount,in such event a minimum of
one- third (1/3) of the User Fees thereafter paid to Owner by Manager
shall be deposited (promptly upon receipt from Manager) into the Fuel
Farm Capital Reserve Account until the balance in the said Account
again equals or exceeds the sum of Two Hundred Fifty Thousand and
00/100 Dollars (US $250,000). The foregoing shall apply at any and all
times the Capital Reserve Account shall fall below the sum of Two
Hundred Fifty Thousand and 00/100 Dollars(US$250,000).
(v) On or prior to the fifteenth (15'') day of each calendar
month commencing July 15. 2019, Manager shall submit to Owner a
written fuel sales/usage report to Owner showing in the aggregate and for
each of(i)base tenants, (ii)non base-tenants (other than DLA and DOD
entities)and(iii)DLA and DOD entities, all fuel flowage from the Fuel
Farm, and the amounts of fuel sold, . The reports shall also describe the
amounts of User Fees under Sections 4(b)(i)(ii) and (iii) herein. Such
reports shall be in the form attached hereto as Attachment 1.
8. Section 5(a) of the Management Agreement is hereby modified by adding the
following immediately following the last sentence of such Section:
"Notwithstanding anything herein to the contrary, Manager shall have the right, with
Owner approval to not be unreasonably withheld, to provide Fueling Services to any or all
persons or entities, whether or not a tenant of the Base, who in turn shall have the right to
purchase jet fuel stored in the Fuel Farm and Manager shall be permitted to deliver jet fuel from
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the Fuel Farm, or to provide all other Fueling Services,to all such Base tenants and non-tenants.
Manager shall comply with all requirements relative to its right to use the Fuel Farm and provide
Fueling Services under this paragraph as set forth in Exhibit"C"attached hereto.
9. Section 5(b)of the Management Agreement is hereby modified to read in its entirety as
follows:
"(b) Collection and Payment of Monies.Manager shall use commercially reasonable
efforts to collect in a timely manner all User Fees payable by Owner's tenant and non-tenant
users of the Fuel Farm.Manager is hereby authorized to request,demand,collect and receive all
such User Fees.All User Fees will be paid to Owner by Manager via direct deposit into the
Alliance Maintenance Fund bank account."
10. Exhibit C,paragraph(1)shall be modified to read in its entirety as follows:
"(1) Manager shall invoice and collect the User Fees."
11. Exhibit C,paragraph(n)shall be modified to read in its entirety as follows:
"(n) Manager shall research and resolve problems and respond to requests for
information, as any of the same may relate to this Agreement, as reasonably requested from the
Owner,its tenants,and non-tenants."
12. Exhibit D is hereby added to the Agreement,as attached hereto.
13. Section 14 is hereby added to the Agreement as follows:
4414. Immigration. Manager shall verify the identity and employment eligibility of its
employees who perform work under this Agreement, including completing the
Employment Eligibility Verification Form (I-9). Upon request by Owner, Manager shall
provide Owner with copies of all I-9 forms and supporting eligibility documentation for
each of Manager's employees who performs work under this Agreement. Manager shall
adhere to all Federal and State laws as well as establish appropriate procedures and
controls so that no services will be performed by any Manager employee who is not
legally eligible to perform such services. MANAGER SHALL INDEMNIFY OWNER
AND HOLD OWNER HARMLESS FROM ANY PENALTIES, LIABILITIES, OR
LOSSES DUE TO VIOLATIONS OF THIS PARAGRAPH BY MANAGER OR,
MANAGER'S EMPLOYEES. Owner, upon written notice to Manager, shall have the
right to immediately terminate this Agreement for material violations of this provision by
Manager."
14. Section 15 is hereby added to the Agreement as follows:
15. No Bovcott of Israel. Manager acknowledges that in accordance with
Chapter 2270 of the Texas Government Code, Owner is prohibited from entering into a
contract with a company for goods or services unless the contract contains a written
verification from the company that it: (1)does not boycott Israel;and(2)will not boycott
Israel during the term of the contract. The terms "boycott Israel" and "company" shall
have the meanings ascribed to those terms in Section 808.001 of the Texas Government
Code. By signing this contract, Manager certifies that Manager's signature provides
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written verification to Owner that Manager: (1) does not boycott Israel; and (2) will not
boycott Israel during the term of the contract.
15. Miscellaneous. Capitalized terms used but not defined herein shall have the meanings set
forth in the Management Agreement. This Amendment constitutes the entire agreement between
the parties with respect to the matters addressed herein and supersedes all prior understandings
and writings with respect to such matters. The Management Agreement, as modified hereby,
remains in full force and effect. This Amendment shall be binding upon the successors and
assigns of each of the parties hereto. This Amendment may be executed in any number of
counterparts, each of which shall be deemed to be an original, and all of which shall constitute
one and the same instrument. Each party may transmit its signature by facsimile or electronic
mail (PDF or similar), and any faxed or electronic signed counterpart of this Amendment shall
have the same force and effect as an original.
[SIGNATURES FOLLOW ON NEXT PAGE]
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IN WITNESS WHEREOF,the parties hereto have caused this Amendment to be executed under
seal as of the day and year first written above.
SIGNED this day of 1 G` • , 2019.
OWNER: MANAGER:
CITY OF FORT WORTH,TEXAS, AT FUEL SERVICES, LLC K'y tf
a home-rule municipal corporationa'1'e, as limi liability company
By: �.���' � By:
Jesus J.Chapa
Assistant City Manager Title: 46.,d
CONTRACT COMPLIANCE MANAGER
By signing, I acknowledge that 1 am the person responsible
for the monitoring and administration of this contract, including
ensuring all p fonnance a reporting requirements.
Title:
Dater
APPROVED AS TO F RM AND LEGALITY:
By: U�
Leann Guzman
Senior Assistant City Attorney
Date:
okk
: .o .
ATTEVCecretary
t� '•'�X��,
y
Date: g�f�
Form 1295: 2018-4219
Contract Authorization:
M&C: C-29025
7
PAL RECORD
r
=a'' :SECRETARY
F7 ` 10RTM,TX
Attachment 1
This will be the report AT Fuel Services supplies to the City each month that details the fuel flowage
from the Fuel Farm,and the amounts of fuel sold.The reports shall also describe the amounts of User
Fees under the Management Agreement.
iStatemeMNumber.~
I StatementDete: ` i
r Date
Submitted:'�
ATFUELSERVICES.INC.
STATEMENTOFACTIVITY- 20
Qtyof Fort Worth Fuel Farm Management Agreement
On-base Customers
Customer#1
Total on-Base
off-Base Customers
Curtomer#1
Customers
Total off-Base
DW00D
Customer##1
Customers
Total DUVOOD
*Net Fuel Revenue Is Gross Revenue less Coat of Goods Sold(Fuel Cost,Transport Cost and Taxes)
SubmRtedto: CityofFortWorth
Property Management Department
Attn:tease Management
INFORMATION PRFSENTEDABOVE IS A TRUE ANDACCURATE ACCOUNTING OF THE INDICATED MONTH'S ACWVITY.
signed: Date:
g
Exhibit"D"
Use of Fuel Farm and Fueling Services
1. No Interference. Manager will provide operations of the Fuel Farm in a manner that does
not interfere with the normal operations of tenants at the Base.
2. Manager shall have the right of ingress and egress for the purpose of providing Fueling
Services over and across those portions of the Base as set forth in Exhibit"D-1", attached hereto
and made a part of this Agreement for all purposes("Access Area").
3. Hazardous Materials.
a. Manager shall not through that which is within its own control cause or permit any
Hazardous Material (as defined herein) to be released, emitted or disposed upon,
about or beneath the Fuel Farm or the Access Area by Manager, its agents,
employees,contractors or invitees.
b. Manager shall indemnify,defend, hold harmless Owner from and against any and all
Environmental Damages which arise directly from the presence upon, about or
beneath the Fuel Farm or Access Area of any Hazardous Materials or any chemical
substance requiring remediation under any federal, state or local law, regulation or
policy only to the extent any such Environmental Damages arise from actions within
the control of Manager. "Environmental Damages" shall mean (1) all claims,
judgements, damages, penalties, fines, costs, liabilities and losses directly related to
Hazardous Materials or any chemical substance requiring remediation under any
federal, state or local law, regulation or policy, (2) all costs incurred by Owner in
connection with investigation of Hazardous Material,upon,about or beneath the Fuel
Farm or Access Area, and (3) the preparation of studies or reports and the
performance of any cleanup, remediation, removal, response, abatement,
containment, closure, restoration, monitoring or similar work required by any
Environmental Requirement (as defined herein) as necessary to have full use and
benefit of the Property for the Owner to the same extent possible at the time of
execution of the Amendment to Fuel Farm Management Agreement,reasonable wear
and tear excepted,. Manager's obligation under this Section shall survive the
expiration of the Management Agreement. For purposes of this Agreement,
"Environmental Requirement" means that required by Applicable Laws,
environmental permits, governmental orders and compliance plans and all laws,
orders, rules, regulations, permits and requirements of duly constituted public
authorities.
c. In addition to the obligation to indemnify, the Manager shall at its sole cost and
expense, promptly take all actions required by any federal, state or local
governmental agency or political subdivision or necessary for Owner to make full
economic use of the Fuel Farm or Access Area due to the presence of Hazardous
Material directly resulting from actions within the control of Manager. Such actions
shall include, but not be limited to, (1) the investigation of the environmental
condition of the Fuel Farm or Access Area, (2) the preparation of studies or reports,
and (3) the performance of any cleanup, remediation, removal or restorative work.
Manager shall take all action necessary to restore the Fuel Farm or Access Area to
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the condition existing prior to the introduction of Hazardous Material upon,about or
beneath the Fuel Farm or Access Area directly resulting from actions within the
control of Manager, reasonable wear and tear excepted, notwithstanding any lesser
standard of remediation allowable under Applicable Laws or governmental policies.
Manager shall obtain the Owner's approval prior to undertaking any activities
required by this section, which approval shall not be unreasonably withheld so long
as the actions would not potentially have a material adverse effect on the Fuel Farm
or Access Area.Manager's obligations under this section shall survive the expiration
of this Agreement.
d. Hazardous Material shall mean any material or substance (1) defined as a hazardous
substance pursuant to the Comprehensive Environmental Response, Compensation
and Liability Act (42 U.S.C. Section 9601 et seq.) and any amendments; (2) the
Hazardous Materials Transportation Act(49 U.S.C. Section 1801 et seq.);(3)defined
as a "hazardous waste" pursuant to the Federal Conservation and Recovery Act (42
U.S.C. Section 9601 et. Seq.)
e. Notwithstanding anything within this Paragraph 3 of Exhibit D ("Hazardous
Materials") or otherwise to the contrary, Manager shall have no liability for any
release, emission or disposal upon, about or beneath the Fuel Farm or the Access
Area unless and only to the extent resulting from matters, situations or incidents
within the control of Manager or within the control of a third party which is itself
controlled or retained by Manager (a "Third Party"), and resulting directly from
actions of Manager or such a Third Party. By way of example only, and not in any
way intended to be exclusive of other situations or incidents,Manager would have no
liability for any release,emission or disposal, for any Environmental Damages,or for
any actions required by any federal, state or local governmental agency or political
subdivision or necessary for Owner to make full economic use of the Fuel Farm or
Access Area due to the presence of Hazardous Material,should an incident occur due
to equipment failure or other circumstances outside the control of Manager or a Third
Party. Additionally, and notwithstanding anything within this Paragraph 3 of Exhibit
D or otherwise to the contrary, nothing herein shall change, alter or amend the
liabilities of Manager, Owner or others under the Agreement, including without
limitation, that related to Hazardous Materials as described within sub paragraph
"(iii)" (commencing "the presence of Hazardous Materials") found within the third
full paragraph of Exhibit C or in regard to the third underground line as described
within the second full paragraph of Exhibit C.
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EXHIBIT"D-1"
ACCESS AREA
CFTW Fuel Farm Location&Access
Routes for Fuel Deliveries i.WA`
i Secondary entry I —
for fuel deliveries
t,U11
r
rima
entry Delivery off-load
P Y for 2; station
fuel deliveries
Qty Fuel Farm
M&C Review Page 1 of 2
Official site of the City of Fort Worth,Texas
CITY COUNCIL AGENDA FORT VORTl!
COUNCIL ACTION: Approved on 2/5/2019
DATE: 2/5/2019 REFERENCE NO.: **C-29025 LOG NAME: 21AMF FUEL
FARM
CODE: C TYPE: CONSENT PUBLIC HEARING: NO
SUBJECT: Authorize Execution of an Amendment to the Management Agreement with AT Fuel
Services, LLC to Operate the Fuel Farm Located at 2006 Eagle Parkway at the Alliance
Maintenance Facility (COUNCIL DISTRICT 7)
RECOMMENDATION:
It is recommended that the City Council authorize execution of an amendment to the Management
Agreement with AT Fuel Services, LLC to operate the Fuel Farm located at 2006 Eagle Parkway at
the Alliance Maintenance Facility.
DISCUSSION:
On January 27, 2015, City Council approved the transfer of ownership and all property related
contracts of the Alliance Fort Worth Maintenance Facility (AMF), formerly known as the American
Airlines Maintenance Facility, located at 2000 Eagle Parkway, Fort Worth, Texas 76177, from the
AllianceAirport Authority (Authority) to the City of Fort Worth (City) (M&C L-15748).
On February 2, 2015, the Authority assigned and the City accepted ownership of the AMF and all
property related contracts which included the Management Agreement between the Authority and AT
Fuel Services, LLC (Manager) to manage and operate the Fuel Farm.
The Fuel Farm, located at 2006 Eagle Parkway is part of the AMF and provides storage and delivery
of jet fuel to the tenants of the AMF.
The Management Agreement terminates December 31, 2018.
The City and Manager desire to amend the Agreement as follows:
1) Extend the term to expire December 31, 2027 and provide for two (2) successive five (5) year
automatic renewal terms to expire December 31, 2037; and
2) Provide for Manager to contract with users outside the AMF and operating at Alliance Airport to
use the Fuel Farm with City approval; and
3) Manager will compensate City with a license fee of 10% of all net revenues generated from fuel
sales by users of the Fuel Farm located on the AMF; and
4) Manager will compensate City with a license fee of 15% of all net revenues generated from fuel
sales by users of the Fuel Farm not located on the AMF, excluding any Department of Defense
(DOD) users for which Manager will pay a 7% license fee of net revenues.
It is recommended that a portion of the user fees collected will be used to establish and maintain a
capital expenditure fund to be used for repairs and equipment replacement at the Fuel Farm. The
remaining funds will be used to offset any operational expenses associated with the AMF.
FISCAL INFORMATION/CERTIFICATION:
The Director of Finance certifies that the Property Management Department will be responsible for
the collection and deposit of funds due to the City under this Agreement.
TO
http://apps.cfwnet.org/council packet/mc review.asp?ID=26193&councildate=2/5/2019 2/25/2019
M&C Review Page 2 of 2
�Fund Department Account Project Program Activity Budget Reference# Amount
_ I p ID ( ( ID I ( I Year I (Chartfield 2)
FROM
Fund Department Account Project Program Activity Budget Reference# Amount
ID ID Year Chartfield 2) t
Submitted for City Manager's Office by: Jay Chapa (5804)
Originating Department Head: Roger Venables (6334)
Mark Brown (5197)
Additional Information Contact: Jean Petr(8367)
ATTACHMENTS
21 AMF FUEL FARM M AND C MAP.pdf
Form 1295-AT Fuel Services LLC Cert. 2018-421590 Redacted.pdf
http://apps.cfwnet.org/council packet/mc review.asp?ID=26193&councildate=2/5/2019 2/25/2019