HomeMy WebLinkAboutCC AG PKT 2014-04-28 #J AGENDA STAFF REPORT
DATE: April 28, 2014
TO: Honorable Mayor and City Council
THRU: Jill R. Ingram, City Manager
FROM: Sean P. Crumby, Director of Public Works
SUBJECT: COMPRESSED NATURAL GAS FUELING STATION
LICENSE AGREEMENT WITH CLEAN ENERGY
SUMMARY OF REQUEST:
That the City Council adopt Resolution No. 6455 approving an agreement to
extend the license granted to Clean Energy for operation of a Compressed
Natural Gas Fueling Station.
BACKGROUND AND ANALYSIS:
In 1998, the City and Pickens Fuel Corporation (aka Clean Energy) entered into
an Agreement and License to provide a fully functional Compressed Natural Gas
("CNG") Fueling Station located on North Gate Road adjacent to Fire Station 48.
In 1998, the agreement allowed for Clean Energy to construct, operate, and
maintain the facility located on City property. The facility is unmanned, and fuel
is available only to authorized vehicles using fueling cards only. In addition to the
City allowing use of the property, $50,000 in funding was provided to assist in
construction of the facility. The $50,000 originated from a grant that was
awarded to the City. One reason for assisting with the development of the
station is that the City received discount pricing for fuel.
On March 11, 2013, the City received a letter from Clean Energy desiring to
improve the aging infrastructure installed in 1998. The equipment at the fueling
facility is over 16 years old and has surpassed its useful life. Clean Energy
would like to stay at this site and invest in infrastructure improvements to keep
the facility. In order to justify the investment, Clean Energy is requesting an
extension of the agreement for a 10 year term with consecutive 5 year renewals.
The City has worked with Clean Energy in negotiating the terms and conditions
of the new agreement and license. The City no longer has CNG vehicles
incorporated into the fleet and therefore does not use the station nor desire
discounted pricing of fuel. The terms of the new agreement have been
negotiated to increase the compensation from $0.01 per gallon of CNG sold to
$0.02 per gallon of CNG sold with a monthly additional payment of $250. The
Agenda Item— i
station provides a service to owners of CNG vehicles as there are not many of
this type of station in Southern California. Removal of the station would have an
adverse irnpact to those owners. The site is approximately 2,200 square feet in
area and does not have any other designated use. The attached is the complete
and final agreement.
ENVIRONMENTAL IMPACT:
Approval of the agreement would allow Clean Energy to maintain its existing
CNG fueling station with no expansion of its operations. It can therefore be seen
with certainty that the approval of the agreement will not cause any significant
environmental impact. Approval of the agreement is therefore exempt from the
California Environmental Quality Act ("CEQA") pursuant to Sections 15061(b)(3)
and 15301 of the CEQA Guidelines.
LEGAL ANALYSIS:
The City Attorney has reviewed the agreement and approved each as to form.
FINANCIAL IMPACT:
The 1998 agreement and license stated for Clean Energy to pay the City $0.01
per gallon sold at the station. It also provided a discount of CNG fuel for City
use. Historically the City received an annual average of$925.
This proposed agenda item is to approve a new agreement and license to pay
the City a flat fee of $250 per month and $0.02 per gallon dispensed at the
station. It is estimated the City will receive an annual average of$1 ,500.
RECOMMENDATION:
That the City Council adopt Resolution No. 6455 approving an agreement to
extend the license granted to Clean Energy for operation of a Compressed
Natural Gas Fueling Station.
SUBMITTED BY: NOTED AND APPROVED:
Sean P. Crumby 4Jil R. Ingram, CO-M nager
Director of Public Works
Prepared by: Michael Ho, Deputy Director of Public Works/City Engineer
Attachments:
A. Resolution
B. Agreement
C. Clean Energy Letter dated March 11, 2013
Page 2
RESOLUTION NUMBER 6455
A RESOLUTION OF THE SEAL BEACH CITY COUNCIL
APPROVING COMPRESSED NATURAL GAS FUELING
STATION LICENSE AGREEMENT WITH CLEAN ENERGY
THE SEAL BEACH CITY COUNCIL DOES HEREBY RESOLVE:
SECTION 1. The City Council hereby approves that Compressed Natural Gas
Fueling Station License Agreement dated April 28, 2014 between the City and
Clean Energy regarding a Compressed Natural Gas Station on North Gate Road.
SECTION 2. The Council hereby authorizes and directs the City Manager to
execute the Agreement.
PASSED, APPROVED and ADOPTED by the Seal Beach City Council at a
regular meeting held on the 28th day of April ,2014 by the following vote:
AYES: Council Members:
NOES: Council Members:
ABSENT: Council Members:
ABSTAIN: Council Members:
Mayor
ATTEST:
City Clerk
STATE OF CALIFORNIA }
COUNTY OF ORANGE } SS
CITY OF SEAL BEACH }
I, Linda Devine, City Clerk of the City of Seal Beach, do hereby certify that the
foregoing Resolution is the original copy of Resolution Number 6455 on file in
the office of the City Clerk, passed, approved, and adopted by the Seal Beach
City Council at a regular meeting held on the 28th day of April , 2014.
City Clerk
COMPRESSED NATURAL GAS FUELING
STATION LICENSE AGREEMENT
between
SEAL
a
2
City of Seal Beach
211 - 8th Street
Seal Beach, CA 90740
Clean Energy, a California corporation
4675 MacArthur Court, Suite. 800
Newport Beach, California 92660
This License Agreement ("the Agreement" or "License") is made as of April 28, 2014 (the
"Effective Date"), by and between Clean Energy, a California corporation ("Company"), and the
City of Seal Beach ("City"), a California charter city, (collectively, "the Parties").
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RECITALS
A. City is the owner of certain property, located at 3101 Beverly Manor in Sea]
Beach (the "Property"), which is the subject of a Compressed Natural Gas Vehicle Fueling
Station Agreement & License, entered into by the City and Pickens Fuel Corp. ("PFC") on
October 26, 1998 (the "1998 Agreement")
B. PFC constructed, operates, and maintains a compressed natural gas motor vehicle
fueling station (the "Station") on the Property pursuant to the 1998 Agreement.
C. Company currently operates and maintains the Station pursuant to the 1988
Agreement as the successor-in-interest to PFC.
D. The Parties mutually desire to enter into a new agreement subject to the terms and
conditions below, which agreement shall supersede and replace the 1998 Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises, covenants, and
agreements herein contained, the Parties hereby agree as follows:
Section 1. Definitions.
1.1 General Descriptions. As used in this Agreement, the following words
and phrases shall have the following meanings:
(a) "Authorized Representative" means any officer, agent, employee,
or independent contractor retained or employed by either Party, acting within authority given by
that Party.
(b) "CNG" means pipeline quality natural gas, compressed for vehicle
use.
(c) "CNG Vehicle(s)" means motor vehicles powered by internal
combustion engines, which have been manufactured or modified to use CNG as a primary fuel.
As used herein, CNG Vehicles shall refer to CNG fueled vehicles owned or operated by
Customer and those owned or operated by third parties authorized to use the Station.
(d) "Gasoline Gallon Equivalent" means (i) 5.66 pounds of CNG or
such other number or units of measure as may now or in the future be prescribed by the federal
government of the United States when CNG is being dispensed from a fast fill dispenser, and (ii)
124,340 BTUs/gallon or such other number or units of measure as may now or in the future be
prescribed by the federal government of the United States when CNG is being dispensed from a
time fill dispenser. Also referred to as a GGE.
(e) "Premises" means that portion of the Property upon which the
Station is located and operated as indicated on the plot plan showing the location of the Station
that is attached hereto as Exhibit A.
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(f) "Station" means the facility for refueling CNG Vehicles operated
and maintained by Company.
Section 2. Rights Granted.
2.1 Use of Premises. Company and its Authorized Representatives are hereby
granted a non-exclusive license for the term of this Agreement to use the Property for the
purpose of operating and maintaining the Station on the Premises and grants the right of ingress
to and egress from the Premises to Company, Company's employees, agents, servants,
customers, vendors, suppliers, patrons and invitees for the purposes contemplated hereby in
accordance with the terms and conditions of this Agreement. The Station shall include a
compressor and controls equipment with a dispensing capacity of at least 75 cubic feet per
minute, 28,500 standard cubic feet of storage capacity, a two-hose dispenser capable of fueling
two vehicles simultaneously at a minimum rate of two gallons per minute, and a magnetic card
reader which is capable of communicating with Company's billing system. The CNG dispenser
shall be designed for public {the "Public Dispenser"),
2.2 Clear Title. City is, and shall remain during the term of this Agreement,
the owner or lessee of the Premises, and shall not allow any lien or encumbrance affecting
Company's performance or rights hereunder.
2.3 Abandonment or Removal. Upon termination of this Agreement.
Company shall, at its sole expense, remove the Station (including any and all merchandise,
equipment, furnishings, fixtures, machinery and tools relating to the Station, together with all
additions, substitutions, replacements and improvements to the same) from the Premises and
restore the Premises to its original condition, reasonable wear and tear excepted. Nothing in this
Section shall affect or limit any other obligation of Company under this Agreement.
Section 3. Term. The initial term of this Agreement shall commence as of the
Effective Date and continue for 10 years, unless sooner terminated as hereinafter provided. This
Agreement shall automatically renew under the same terms and conditions for consecutive 5 year
terms unless: (i) Company gives notice of any changes in such terms of conditions to City at
least 30 days prior to such renewal, or (ii) City gives Company written notice of termination at
least 30 days prior to such renewal. Any changes to the terms and conditions of this Agreement
must be agreed to by both Parties in writing.
Section 4. Party Representatives.
4.1 The City Manager is the City's representative for purposes of this
Agreement.
4.2 Steve McCarthy is Company's primary representative for purposes of this
Agreement.
Section 5. Fees and Charges
5.1 Monthly Fee. In exchange for the rights granted under this Agreement,
Company shall pay to City as the monthly license fee, without deduction, setoff, prior notice, or
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demand, the sum of $250.00 per month, subject to adjustment as provided in Section 5.2. The
Monthly Fee shall be paid in advance on the first day of each month, commencing on the date
the term commences and continuing during the term. All Monthly Fees shall be paid to City at
the address to which notices to City are given.
5.2 Per Gallon Fee. In addition to the Monthly Fee, Company shall pay to
City $0.02 per Gasoline Gallon Equivalent dispensed at the Station, subject to adjustment as
provided in Section 5.3. The Per Gallon Fee shall be paid to City at the address to which notices
to City are given no later than 30 days following the last day of the month in which the fuel was
dispensed.
5.3 Annual Adjustment to Monthly Fee. The Monthly Fee and Per Gallon Fee
described in Sections 5.1 and 5.2 shall be adjusted on August 1 of each year of this Agreement
("Adjustment Date") as follows:
(a) The base for computing the adjustment on each Adjustment Date is
the Consumer Price Index for All Urban Consumers for the Los Angeles-Anaheim-Riverside
Metropolitan Area published by the United States Department of Labor, Bureau of Labor
Statistics ("Index") that is published for the fifteenth month preceding that Adjustment Date
("Extension Index"). If the Index published for the third month preceding that Adjustment Date
("Extension Index") is less than or equal to the beginning Index, the Monthly Fee shall not be
adjusted and shall continue at the rate in effect immediately prior to that Adjustment Date. If the
Extension Index is more than the Beginning Index, the Monthly Fee shall be adjusted to an
amount determined by multiplying the Monthly Fee in effect immediately prior to that
Adjustment Date by a fraction, the numerator of which is the Extension Index and the
denominator of which is the Beginning Index.
(b) If the Index is changed so that the base year differs from that used
for the Beginning Index, the Index shall be converted in accordance with the conversion factor
published by the United States Department of Labor, Bureau of Labor Statistics. If the Index is
discontinued or revised during the term, such other government index or computation with which
it is replaced shall be used in order to obtain substantially the same result as would be obtained if
the Index had not been discontinued or revised.
5.4 Taxes and Assessments. Company shall pay or cause to be paid, before
delinquency, any and all taxes and assessments levied and assessed against its interest under this
Agreement. Company recognizes and understands that this Agreement may create a possessory
interest subject to taxes levied upon such interest. Any such taxes and assessments are
Company's sole responsibility.
5.5 Interest on Unpaid Amounts. Any amounts not paid when due shall bear
interest at the rate of 12% per annum from the date due until paid.
Section 6. Maintenance.
6.1 Company shall maintain the Premises in a clean, safe, and commercially
reasonable condition suitable for vehicle refueling use.
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6.2 Company shall be solely responsible for the cost and expense of any
upgrades or improvements made to the Station,
6.3 Company, at its sole cost and expense, shall make repairs to the Premises
for damage arising from or in connection with the use thereof by Company and its Authorized
Representatives. Company shall give City Engineer as much prior notice as possible before
commencing any repair work, but in no event less than 48 hours' notice without City's consent
to shorter notice in the specific case. Repairs shall be completed promptly and to the satisfaction
of the City Engineer. Company shall document all repair activities, and shall submit copies of all
documentation to City upon demand, and, in the absence of a demand, not less frequently than
annually.
6.4 If Company fails to perform any necessary maintenance within 10 days
after demand by City (or, in an emergency, such shorter period as may be determined by City
Engineer), City may (but is not required to) perform such maintenance at Company's expense.
Company shall reimburse City for its costs incurred within 10 days after presentation of an
invoice.
Section 7. No Warranty by City. Except as otherwise indicated in this Agreement,
City makes absolutely no warranty as to the fitness of the Premises for the purposes intended by
Company or for any purpose whatsoever.
Section 8. Indemnification, Hold Harmless, and Duty to Defend. Company shall
defend, indemnify, and hold City, its officials, officers, employees, volunteers and agents serving
as independent contractors in the role of city officials (collectively "Indemnitees") free and
harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss,
damage or injury, in law or equity, to property or persons, including wrongful death, in any
manner arising out of or incident to any acts or omissions of Company, its employees, or its
agents in connection with the performance of this Agreement or exercise of the rights granted
pursuant this Agreement, including without limitation the payment of attorneys' fees and other
related costs and expenses, except for such loss or damage arising from the sole negligence or
willful misconduct of City. With respect to any and all such aforesaid suits, actions, or other
legal proceedings of every kind that may be brought or instituted against Indemnitees, Company
shall defend Indemnitees, at Company's own cost, expense, and risk, and shall pay and satisfy
any judgment, award, or decree that may be rendered against Indemnitees. Company shall
reimburse City and its directors, officials, officers, employees, agents and/or volunteers, for any
and all legal expenses and costs incurred by each of them in connection therewith or in enforcing
the indemnity herein provided. Company's obligation to indemnify shall not be restricted to
insurance proceeds, if any, received by Company, City, its directors, officials, officers,
employees, agents or volunteers. All duties of Company under this Section shall survive
termination of this Agreement.
Section 9. Consequential Damages. Neither Party shall have any liability to the other
Party for special, consequential, or incidental damages, except however in connection with a
claim made against City by a third party, provided that such claim arises out of or results from
any claim within the scope of the indemnity obligation of Company under this Agreement.
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Section 10. Hazardous Substances.
10.1 Hazardous Substances. For purposes of this Agreement, the term
"Hazardous Substance" means any substance that is listed as a "Hazardous Substance" pursuant
to 42 U.S.C. Section 9601(14), and also any toxic, ignitable. reactive, or corrosive hazardous
waste defined pursuant to 42 U.S.C. Section 6921 and implementing regulations. "Hazardous
Substance" includes without limitation, any and all materials or substances that are defined by
federal, state, or local statutes, regulations, or ordinances as "hazardous waste," "extremely
hazardous waste," or a "hazardous substance." "Hazardous Substance" includes but is not
limited to, asbestos, polychlorobiphenyls ("PCBs"), and oil, petroleum and their fractions or by-
products, notwithstanding any "petroleum exclusion" set forth in 42 U.S.C. Section 9601(14).
10.2 Prohibition. With the exception of the storage and dispensation of CNG
as envisioned by this Agreement, neither Company nor Company's employees, officers,
officials, agents, transferees, contractors or subcontractors shall cause, permit any Hazardous
Substances to be used, stored, or generated, on or in the Premises, the public right-of-way, or any
City property by Company, Company's agents employees, contractors, or invitees without first
obtaining City's written consent. In no event shall Company ever use the Premises to dispose of
any Hazardous Substance or any Solid Waste(as defined by 42 U.S.C. Section 6903(27)).
10.3 Indemnification. If Company or Company's employees, officers, officials,
agents, transferees, contractors, or subcontractors cause, permit, or allow Hazardous Substances
to be used, stored, or generated, on or in the Premises, the public right-of-way, or any City
property, then Company shall defend, indemnify and hold harmless City (and its
councilmembers, officers, staff, employees, and agents) from any and all claims, damages, fines,
judgments, penalties, costs, liabilities, or losses (including, without limitation, a decrease in
value of the Premises, the public right-of-way, or any City property, damages caused by loss or
restriction of rentable or usable space, or any damages caused by adverse impact on marketing of
the space, or any governmental or third-party claim for reimbursement or compensations
pursuant to liability under CERCLA, RCRA, or related statutes, and any and all sums paid for
settlement of claims, attorneys' fees, consultant, and expert fees) arising during or after the term
of this Lease and arising as a result of that contamination. This duty to defend and
indemnification includes, without limitation, any and all costs incurred because of any
investigation of the site or any cleanup, removal, or restoration mandated by a federal, state, or
local agency or political subdivision. Without limitation of the foregoing, if Company causes or
permits the presence of any Hazardous Substance on the Premises which results in contamination
of the soil, soil vapors, or groundwater beneath the Premises, then Company shall promptly. at
Company's sole expense, take any and all necessary actions to return the Premises to the
condition existing prior to the presence of any such Hazardous Substance on the Premises.
Company shall first obtain City's approval for any such remedial action. The provisions of this
paragraph shall be in addition to any other obligations and liabilities Company may have to City
at law or equity and shall survive the expiration or termination of this Agreement. In the event
that the City notifies Company of potential liability under this Section, Company shall respond in
writing to such a notification within 10 working days. If Company does not so respond and
unequivocally accept the duty to defend and indemnify the City without reservation, then City
shall have the right to retain independent legal counsel within its sole discretion and Company
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shall be responsible for all fees and costs, including attorneys' fees, of any such counsel selected
by the City.
Section 11. Insurance Requirements.
11.1 Types of Required Coverages. As a condition precedent to the
effectiveness of this Agreement, Company shall, without limiting the indemnity provisions of
this Agreement, procure and maintain in full force and effect during the term of this Agreement,
the following policies of insurance:
(a) Commercial General Liability. Commercial General Liability
Insurance with minimum limits of $1.,000,000 per occurrence, and if written with an annual
aggregate, an aggregate limit of not less than $2,000,000. Such insurance shall include coverage
for Contractual Liability as defined under insured contracts in the general liability policy.
(b) Excess Liability. Excess Liability or Umbrella Insurance with a
minimum limit of$3,000,000 per occurrence, over and above the primary limits indicated in (a)
and (c)in this section.
(c) Automobile Liability Insurance. Automobile Liability Insurance
covering "Any Auto" (Symbol 1) with limits of $2,000,000 each accident. Excess or umbrella
liability insurance may be used to evidence limits over$1,000,000.
(d) Workers' Compensation. Workers' Compensation Insurance, as
required by the State of California and Employer's Liability Insurance with a limit of not less
than $1,000,000 per accident for bodily injury and disease.
(e) Pollution Legal Liability. Pollution Legal Liability Insurance with
limits of at least$2,000,000 including third party pollution cleanup and removal.
11.2 Endorsements. The policies of insurance required by subsections 11.1
shall be endorsed as follows:
(a) Additional Insured. City and its officers, agents and employees
shall be additional insured's with regard to general liability, automobile liability and pollution
liability policies of insurance.
(b) Primary Insurance. Excluding workers compensation insurance,
this insurance shall be primary and any other insurance, deductible, self-insurance or self-insured
retention maintained by City shall not contribute with this primary insurance.
(c) Separation of Insureds. Excluding workers compensation, in the
event of one insured, whether named or additional, incurs liability to any other of the insureds,
whether named or additional, the policy shall cover the insured against whom claim is or may be
made in the same manner as if separate policies had been issued to each insured, except that the
limits of insurance shall not be increased thereby.
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(d) Cancellation. The policy shall not be canceled until a 30 day
written notice of cancellation has been served upon City (except that the thirty day period may be
reduced to ten days for nonpayment of premium). Company shall also provide City with notice
of any reduction in limits of any policy required by this Agreement within 30 days of when
Company first learns of such reduction.
(e) Duties. Any failure by the named insured to comply with reporting
provisions of the policy or breaches or violations of warranties shall not affect coverage provided
to City.
(I) Waiver of Subrogation. The General Liability and Automobile
Liability polices required by this Agreement shall be endorsed to include a blanket waiver of all
rights of subrogation against City.
11.3 Evidence of Insurance. Company shall deliver either certified copies of
the required policies or Certificates of Insurance, as approved by City, evidencing the required
coverage and endorsements. Within at least 5 (five) days of the expiration of any such policy,
evidence of insurance showing that such insurance coverage has been renewed or extended shall
be filed with City. If such coverage is cancelled, Company shall, within 10 days after receipt of
written notice of such cancellation, file with City evidence of insurance showing that the
required insurance has been reinstated or has been provided through another insurance company
or companies.
11.4 Failure to Maintain Coverage. Company shall suspend and cease all
operations hereunder during any period of time as the required insurance coverage is not in effect
or evidence of insurance has not been furnished to City.
11.5 Acceptability of Insurers. Each policy required by this Agreement shall be
issued by a company or companies with a current A.M. Best's rating of no less than A:VI1 and
authorized to do business in the State of California, or otherwise allowed to place insurance
through surplus line brokers under applicable provisions of the California Insurance Code or any
federal law.
11.6 Insurance for Authorized Representatives. Company shall be responsible
for requiring any subcontractors hired to perform work as part of this contract to purchase the
appropriate insurance according to the scope of work in compliance with the terms of this
Agreement.
11.7 Self Insurance. Company may elect to self-insure as to either or both the
Commercial General Liability or Excess Liability insurance required in Sections 10.1(a) and (b)
respectively, in which case Company will provide City with a letter of self insurance for such
coverage of in lieu of a certificate of insurance.
Section 12. Termination. Upon a material breach of this Agreement, either Party shall
have the right to terminate this Agreement, for cause, upon fifteen (15) days written notice and
opportunity to cure to the other Party, provided, however, that where it is not commercially
reasonable to fully effect a cure to the other Party within the fifteen (15) day period set forth
above, the Party in breach shall not be deemed to be in default of the Agreement and subject to
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termination for cause where it commences implementation of the cure within such fifteen (15)
day period and thereafter proceeds diligently to cure the breach.
Section 13. Nonassitnability. Neither Party may assign this Agreement without first
obtaining the written consent of the non-assigning Party, which consent may not be unreasonably
withheld; provided, however, that Company may assign this Agreement to any subsidiary,
affiliate or party or entity acquiring 50% or more of Company's assets within the State of
California.
Section 14. Notices.
14.1 All notices permitted or required under this Agreement shall be deemed
made when personally delivered or when mailed 48 hours after deposit in the United States Mail,
first class postage prepaid and addressed to the party at the following addresses:
If to City, to: City of Seal Beach
211 Eighth Street
Seal Beach, California 90740
Attn: City Manager
With a copy to: City of Seal Beach
211 Eighth Street
Seal Beach, California 90740
Attn: Director of Public Works
If to Company, to: Clean Energy
4675 MacArthur Court, Suite 800
Newport Beach, California 92660
Attn: Peter Grace
With a copy to: Clean Energy
4675 MacArthur Court, Suite 800
Newport Beach, California 92660
Attn: Nate Jensen
14.2 Actual notice shall be deemed adequate notice on the date actual notice
occurred, regardless of the method of service.
Section 15. Prohibited Interests; Conflict of Interest.
15.1 Company covenants that it presently has no interest and shall not acquire
any interest, direct or indirect, which may be affected by the Services, or which would conflict in
any manner with the performance of the Services. Company further covenants that, in
performance of this Agreement, no person having any such interest shall be employed by it.
Furthermore, Company shall avoid the appearance of having any interest, which would conflict
in any manner with the performance of the Services. Company shall not accept any employment
or representation during the term of this Agreement which is or may likely make Company
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"financially interested" (as provided in California Government Code §§1090 and 87100) in any
decision made by City on any matter in connection with which Company has been retained.
15.2 Company further warrants and maintains that it has not employed or
retained any person or entity, other than a bona fide employee working exclusively for Company,
to solicit or obtain this Agreement. Nor has Company paid or agreed to pay any person or entity.
other than a bona fide employee working exclusively for Company, any fee, commission, gift,
percentage, or any other consideration contingent upon the execution of this Agreement, Upon
any breach or violation of this warranty, City shall have the right, at its sole and absolute
discretion, to terminate this Agreement without further liability, or to deduct from any sums
payable to Company hereunder the full amount or value of any such fee, commission,
percentage, or gift.
15.3 Company warrants and maintains that it has no knowledge that any officer
or employee of City has any interest, whether contractual, financial, proprietary, or otherwise, in
this transaction or in the business of Company, and that if any such interest comes to the
knowledge of Company at any time during the term of this Agreement, Company shall
immediately make a complete, written disclosure of such interest to City, even if such interest
would not be deemed a prohibited "conflict of interest" under applicable laws as described in this
subsection.
Section 16. Miscellany.
16.1 Governiniz Law. This Agreement shall be construed and interpreted in
accordance with the laws of the State of California.
16.2 Waiver. The waiver by City or Company of any breach by the other Party
of any term, covenant, or condition herein contained shall not be deemed to be a waiver of such
term, covenant, or condition herein contained. The subsequent acceptance of fees hereunder by
City shall not be deemed to be a waiver of any preceding breach by Company of any term,
covenant, or condition of this Agreement, other than the failure to pay the particular fees so
accepted, regardless of City's knowledge of such preceding breach at the time of acceptance of
such fees.
16.3 Time of Essence. Time is of the essence with respect to the performance
of every provision of this Agreement in which time of performance is a factor.
16.4 Gender: Number. The neuter gender includes the feminine and masculine,
the masculine includes the feminine and neuter, and the feminine includes the neuter, and each
includes corporation, partnership, or other legal entity whenever the context so requires. The
singular number includes the plural whenever the context so requires.
16.5 Entire Agreement; Modification. This Agreement contains the entire
agreement between the parties regarding the subject matter hereof. No prior agreement,
including but not limited to the 1998 Agreement between the Parties, nor any verbal agreement
or implied covenant shall be held to vary the provisions hereof, any statements, law or custom to
the contrary notwithstanding. No promise, representation, warranty, or covenant not included in
this Agreement has been or is relied on by either Party. Each Party has relied on its own
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inspection of the Premises and the Property and examination of this Agreement, the counsel of
its own advisors, and the warranties, representations, and covenants in this Agreement itself.
The failure or refusal of either Party to inspect the Premises or the Property, to read this
Agreement or other documents, or to obtain legal or other advice relevant to this transaction
constitutes a waiver of any objection, contention, or claim that might have been based on such
reading, inspection, or advice.
16.6 Severability. The invalidity or illegality of any provisions shall not affect
the remainder of this Agreement and all remaining provisions shall, notwithstanding any such
invalidity or illegality, continue in full force or effect.
16.7 Successors. Subject to the provisions of this Agreement on assignment,
each and all of the covenants and conditions of this Agreement shall be binding on and shall
inure to the benefit of the successors and assigns of the respective parties.
16.8 Force Majeure. In the event that Company is prevented from performing
its duties and obligations pursuant to this Agreement by circumstances beyond its control,
including, without limitation, fires, floods, labor disputes, equipment failure, the interruption of
utility services, the cessation of providing necessary products or services to Company by any
supplier to Company, war, acts of terrorism, or Acts of God (hereinafter referred to as "Force
Majeure"), then Company shall be excused from performance hereunder during the period of
such disability ("Force Majeure Period"). If Company claims Force Majeure, Company shall
notify City within 24 hours after it learns of the existence of a Force Majeure condition, and will
also provide City with an estimate, if one can be reasonably made, of the anticipated Force
Majeure Period. Company will also notify City within 24 hours after the Force Majeure
condition has terminated. Company shall agree to use commercially reasonable efforts to correct
whatever events or circumstance cause the Force Majeure event. In the event any Force Majeure
condition causes damage or destruction to the Station after the completion of the Station and
acceptance of the completed Station in writing by City, Company shall, upon City's request
repair any such damage and rebuild the Station and shall bill City for such replacement parts and
labor at Company's current labor rates.
16.9 Attorneys' Fees. If either Party commences any legal, administrative, or
other action against the other party arising out of or in connection with this Agreement, the
prevailing party in such action shall be entitled to have and recover from the losing party all of
its attorneys' fees and other costs incurred in connection therewith.
16.10 Exhibits. All exhibits referenced in this Agreement are hereby
incorporated into the Agreement as if set forth in full herein. In the event of any material
discrepancy between the terms of any exhibit so incorporated and the terms of this Agreement.,
the terms of this Agreement shall control.
1.6.11 Corporate Authority. The person executing this Agreement on behalf of
Company warrants that he or she is duly authorized to execute this Agreement on behalf of said
Party and that by his or her execution, the Company is formally bound to the provisions of this
Agreement.
Page 11 of 13
IN WITNESS WHEREOF, the Parties hereto, through their respective authorized
representatives have executed this Agreement as of the date and year first above written.
CITY OF SEAL BEACH CLEAN ENERGY FUELS CORP.
By: By:
Jill R. Ingram Peter Grace
City Manager Senior Vice President, Sales and
Attest: Finance
B By:
By' Mitchell tMitchell W. Pratt
Linda Devine C 0
City Clerk C 0 &Corporate Secretary
Approved as to Form:
By:
Quinn Barrow
City Attorney
Page 12 of 13
EXHIBIT A
The Premises
Page 13of13
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3020 Old Ranch Parkway.Suite 400
Seal Beach,California 90740 USA Steve McCarthy
562 335-9783 fax 562.493 4532 Western Regional Manager
Own Enelay
March 11,2013
Mr. Michael Ho, P.E.
City or Seal Beach
211 U ighth Street
Seal Lch,CA 90740
RE: City contract with Pickens Fuel Corp to maintain the CNG fueling station at
3101 Beverly Manor,Seal Beach,executed 10/26/1998
Dear Michael.
In order to provide continued set-vice to the above site major improvements in the
form of electrical service upgrades and a compressor replacement have become
necessary. Clean Ener- estimates the cast of these upgrades to be approximately
1--y
$300,000.
Clean Energy is willing to absorb these costs but, before doing so, we are asking the
City to rewrite the contract to allow for a new ten year term., followed by automatic
renewals every five years thereafter. Without a long term commitment from the City
we would not be willing to invest the necessary capital,
C�
Please let me know if more information is necessary in order to start the process or
rewriting our contract with the City.
Sincerely.
Steve Me ar
v
,v car
North Arnetim 9 leader in clean transportiron