01-26-2015 Council Packet - Laserfiche WebLink

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9. DAMAGES IN THE EVENT OF SELLER'S FAILURE OF PERFORMANCE. In the event that Seller can not deliver any specific load of Fuel to Buyer within 72 hours from the time that Buyer orders such load of Fuel from Seller then Buyer shall have the right to purchase such load of Fuel from another supplier. If Buyer purchases such load of Fuel from another supplier and must pay more per gailon than the price per gallon per this Agreement, then, except in the event of Force Majeure, Seller will reimburse Buyer for the difference in the Fuel price times the number of gallons purchased plus an additional sum of Fifty Dollars ($50.00), which is Seller's penalty for failure to deliver. In the event that the price of Fuel is cheaper per gallon, then Buyer shall pay the difference to Seller, less Fifty Dollars ($50.00), which shall constitute Seller's penalty for failure to deliver. Any gallons purchased by Buyer from another supplier pursuant to this paragraph shall count towards Buyer's contractual obligations pursuant to this Agreement. 10. LIQUIDATION AND CLOSEOUT. The parties acknowledge that this Agreement is a forward Agreement as defined in the Bankruptcy Code [I IU.S.C.A. Sec 101(25)]. If one party (the "defaulting party") shall voluntarily file a petition in bankruptcy, reorganization, or receivership, shall be forced by its creditors into bankruptcy, reorganization, or receivership, shall become insolvent, shall fail to pay its debts as they become due, or shall fail to give adequate assurance or security of its ability to perform its obligations hereunder within forty-eight (48) hours after receipt of a request therefore, the liquidating party shall have the immediate right to liquidate and close out this Agreement and all other forward Agreements (as defined by the Bankruptcy Code) between the parties (regardless of whether the liquidating party is the delivering party or the receiving pariy thereunder). Upon liquidation, the party not filing or forced into Bankruptcy shall be reimbursed for losses as follows: Seller shall be reimbursed for any Loss incurred as set forth in Paragraph 7 above; Buyer shall be reimbursed for the Margin (if the NYMEX value on the date of termination exceeds the Initial NYMEX Value) times the remaining gallons. The defaulting party shall pay the other party by wire transfer in immediately available funds within twenty-four (24) hours after receiving the results of the calculation. The liyuidation and close-out of this Agreement and all other forward Agreements is in addition to any other rights and remedies which the other party may have. i l. BUYER'S ACKNOWLEDGEMENT OF FUEL PRiCE RISK AND WANER OF CLAIM AGAINST SELLER — Buyer acknowledges, and assumes the risk, that fuel market prices may fluctuate during the term of this Agreement, possibly causing Buyer to purchase Fuel pursuant to this Agreement at prices significantly higher than prevailing current fuel market prices. Buyer further acknowledges and accepts that Seller is not providing any investment advice or recommendations or projections regarding future Fuel prices; Buyer waives any potential claim against Seller pertaining to Buyer's election to enter into this Agreement. 12. FORCE MAJEURE — In the event either party is rendered unable, wholly or in part, to perform its obligations under this Agreement(other than to make payments when due)due to acts of God, floods, fires, explosions, extreme heat or cold, earthquake or storm; transportation difficulties, strikes, lockouts or other industrial disturbances; wars, acts of terrorism or sabotage; accident or breakage of equipment or machinery; or any law, rules, order or action of any court or instrumentality of the federal or any state government; or for any other cause or causes beyond its reasonable control, it is agreed that on such parly's giving notice and full particulars of such force majeure to the other party, the obligations of the party giving such notice shall be suspended from the date of receipt of such notice and for the continuance of any inability so caused, but for no longer period, and such cause shall,