HomeMy WebLinkAboutCC AG PKT 2008-11-10 #SAGENDA STAFF REPORT
DATE. November 10, 2008
TO: Honorable Mayor and City Council
THRU: David Carmany, City Manager
FROM: Linda Devine, City Clerk
SUBJECT: CLEAN ENERGY (PICKENS FUEL CORP.)
AGREEMENT RENEWAL
SUMMARY OF REQUEST:
Receive and File
BACKGROUND:
In the original agreement with Pickens Fuel Corp. (now Clean Energy) entitled
Compressed Natural Gas VehiGe FueJrng Station Agreement and License, Section
5.1 Term provides the agreement will automatically renew for five years under the
same terms and conditions unless either party provides notice of termination. The
City has not received any notice from Clean Energy. Thus the agreement is
automatically renewed with the same terms and conditions for an additional five-year
term starting October 28, 2008, and ending on October 25, 2013.
FINANCIAL IMPACT:
There are no changes at this time.
RECOMMENDATION:
Receive and Fde.
SU MITTED
¢t/
Lin a Devine, City Clerk
NOTED AND APPROVED:
a.~
David Carmany, City Manager
Attachments:
A. Letter acknowledging renewal
B Staff Report 10-26-98
C. Agreement dated 10-26-98
Agenda Item S
November 11, 2008
Mr. James N Harger
Clean Energy
3030 Old Ranch Parkway, Sude 280
Seal Beach, CA 90740
Dear Mr. Harger
Per the Agreement entitled Compressed Natural Gas Vehrc/e Fueling Station Agreement and
License, Article 5, Section 5.1 Term, "the Agreement shall automatically renew under the
same terms and conditions for consecutive five (5) year terms." The City of Seal Beach has
not received any notice of any changes in such terms or conditions.
This letter serves as wrdten acknowledgement that the City of Seal Beach shall accept the
automatic renewal of all terms and conditions of the existing agreement for an additional five
(5) year term starting October 26, 2008, and ending on October 25, 2013.
If you have any questions, please contact me at your earliest convenience at (562) 431-2527
extension 1300.
Sincerely,
David Cannany
City Manager
DC/ac
cc. City Clerk
• _iP _• ~ • - •1 .1-..Y~ ~\ .. - - ~ i- 9 •i F-..r_ .YW ~• -
October 26, 1998
STAFF REPORT
To: Mayor and Members of the City Council
Attention: Keith R Till, City Manager
From: Stephen G. Badurr~ Director of Public Works/City Engineer
Subject: COMPRESSED NATURAL GAS VEHICLE FUELING
STATION LICENSE & AGREEMENT WITH PICKENS
FUEL CORP.
GENERAL DESCRIPTION
The proposed action will authorize the City Manager to execute an agreement and license with
Pickens Fuel Corp. to provide, operate, and maintain a compressed natural gas (CNG) vehicle
fueling station.
DISCUSSION:
The City has recently executed a grant agreement with the California En
ergy Commission for
funding from the Petroleum violation Escrow Account (PVEA) in the amount of $250,000
Within that grant are provisions to fund ahemative fueled vehicles including: leasing four (4)
electric vehicles; installing an electric charging station, purchasing six (~ compressed natural
gas vehicles; and installing a compressed nature( gas fueling station. This first step into
alternative fueled vehicles is consistent with the City's goal of building an environmentally
sensitive and fuel efficient Beet.
City Staff had been working with Pickens Fuel Corporation to establish a fueling facility on
Beverly Manor Road adjacent to F've Station #48. The planned finality will serve the City of
Seal Beach, Naval Weapons Station, other public agencies, and private fleets such as Super
Shuttle. In order to proceed with the construction of this facility, an agreement and license
needs to be executed with Pickens Fuel Corporation. 1n
Pickens Fuel Corp will construct, operate, and maintain the fatality locat~~~ provides that
The faality wi71 be unmanned and fuel will be available to authorized vehicles using fueling
cards only. The City's share to constnuct the facility will be $50,000 and is funded by the
PVEA grant and AB2766 funds. The City wdl receive discount pricing for fuel based upon the
amount of fuel used, up to $0.05 per GGE (equivalent to a gallon of gasoline) for 4000 GGE
and above. The cost of fuel is $0.95 per GGE for the first year and it will be adjusted
thereafter by the Consumer Price Index (CPI). Upon filing of a State Exase tax exemption for
the CNG vehicles, the City will receive an additional $0 085 discount. The City will commit to
AGENpA1TEM~
CNG Vek~cle Fueling Stnhai
Cety Cau~ual SfaffRepoit
OcEobe- 26, 1998
purchasing six CNG vehicles within the 5rst year, funded by the PVEA grant, and additional
CNG vehicles over future years as replac~rnent vehicles are budgeted. Pickens Fuel Corp. has
also committed to assisting the City in obtaining grants for the purchase of CNG vehicles to
replace the City's aging Beet.
FISCAL IMPACT:
Funds are currently available under the PVEA grant ($45,000) and the City's AB2766
Funds ($5,000).
RECOMMENDATION:
City staff recommends that the City Council authorize the City Manager to execute an
agreement and licence with Pickens Fuel Corp. to provide, operate, and maintain a compressed
natural gas vehicle fueling station
NOTED APPROVED
. Badum, Director Keith R Till
Works Department City Manager
2 AGENDA TEEM
RESOLUTION NUMBER_a~~~
A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF SEAL BEACH RECOGNIZING THE
ACCOMPLISHMENTS OF PICKENS FUEL CORPORATION
WHEREAS, P'rokens Fuel Corporatbn, the nation's largest private supplier of
natural pas as a vehiGe fuel, was honored on Earth Day by the
U S. Environrtrental Protection Agency for the firm's efrorts at
reduGrtg vehicle air emissions and irnprovrng the enrtronment; and
WHEREAS, m a unique publxJpnvete partnership, Pickens Fuel Corporation
and the City of Seal Beach received grant funds from the Calrfomia
Energy Commission -and vnth metchstg funds Gom both entftrea -
cartstrueted and now operate a natural gas fuehnp station m Seal
Beach, and
WHEREAS, this fueling statron was located in close proximity to the City's
alternative fuel fleet and to the naturel gas fleet used by the Seal
Beach Naval Weapons Station and, wdh nearby freeway access, is
available to pnvate sector indusfies wch as Generel Telephone
Company which also operates alternative fuel veMdes ;and
WHEREAS, Pndcens Fuel Corporeflon is to be recognized es pert of the solution
to vehiGe emissron problems in Southern Calitomia where
environment and busmesa can swat together end achieve mutual
goals.
NOW, THEREFORE, I, PATRICIA CAMPBELL, MAYOR OF THE CITY OF
SEAL BEACH, CALIFORNI/~ do hereby express our apprecietlon and
recognibon to Pickens Fuel Corporetion for ka axomptuhments and otter our
best wishes for years of continued success as a partner sntlt the City of Seal
Beach.
IN WITNESS WHEREOF, I have hereunto set my hand and caused the seal of
the Ctty of Seal Beach to be affixed, this Twenty~Second Day of May, in the Year
Two Thousand.
MAYOR PAT C BELL
ATTEST.
/.
C
1
Resolution Rva~ber~~
STA I'G 06 CALIpO1WlA)
COUMI'Y Op OItANG& ) SS
CITY OF SGAL UPACH )
I, Joamro M Yeu, Cay Cid k oLSeal Beach, Cahfomia u h y ccrtify dial the forelywng
rcaoluhun is the onginal wpy of Rcauluuon Numher on filc in th ulliu oC the City
Cicrk, paaacd, appravcd, and ado Iql b tlx: City Cow c Cuy of Seal Beach al a regular
mccung 1 hcreof held on tlx ~~ day of , 2000,
O
y Icy k '
LJ
COMPRESSED NATURAL GAS VEHICLE
FUELING STATION AGREEMENT & LICENSE
THIS AGREEMENT (the "Agreement") is made and entered into as o~i~~Ft~~P ~ ~~
1948 by and between The City of Seal Beach ("Customs") and PICKENS FUEL C ., a Cahfomra ~
corporation ("PFC").
In consideration of the mutual promises, covenants, and agreements herein contained, the
parties hereto (the "Parties") agree as follows
ARTICLE 1
SCOPE OF AGREEMENT AND DEFINITIONS
1 1 Tnteat Thrs Agreement, together with say and all Exlu`bits and Schedules attached
hereto, expresses the terms and conditions pursuant to whrch Customer authonzes PFC to construct and
maintain a Compressed Natural Gas ("CNG") motor vehrcle fuehng station (the "Station") on property (the
"Premises") owned or controlled by Customer for the use of Customer and other authonzed users.
1 2 Defmiti ns As used in thtis Agreement, the following terms and expressraus shall
have the induated meanings.
"A~ment" means this dn^,^~-°^-*- end any end all exhrbits and schedules hereto
"CNG" means pipehne quality natural gas, compressed for vehrcle use
"CNG Vehicle(s)" means motor vehrcles powered by internal combustion engines, whuh
have bees manufiu;tured or modrfied to use CNG as a primary fuel As used herein, CNG
Vehrcees shall refer W CNG fueled vehicles owned or operated by Customer and those
owned or operated by third parties suthorrzed to use the Station
"Cus " means the Party rdmt~fied in the first sentence of this Agreement, acting by and
through its officers, employees and authorised agents and its permitted successes m interest
as owners of the Premrses.
"~" m "Pames" means PFC and Customer, in then respectrve capacrtus as parties to
thrs Agreement.
"PFC" means Prckens Fuel Corp , a Califomra crxpinatton, or a limrted habrhty cgmpany
under the same controlling interest as such corporation, acting by and through its
employees, officers and authorized agents
"Premr " means that pomon of the property owned by Customer upon whrch the Station
will be operated. The Premises are rndreated on the plot plan (showing the location of the
Statron) attached as Exhibrt A hereto.
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"Statum" means the facility for refueling CNG Vehicles operated by Customer and
maiatamed by PFC.
ARTICLE 2
RESPONSIBILITIES OF PFC
2 1 Station PFC shall design, construct, operate and maintain a Station on the
Premises. PFC shall make reasonable efforts to have the Station m operation on or prior to Ctiistomei's initial
scheduled CNG vehicle delivery date (the "Initial Delivery"), Provided, that Customer shall notify PFC in
wasting no less than one hundred eighty (180) days pnor to the Initial Delivery Such Station shall include,
a compressor and c~trols eginpmcet with a dispensing capacity of at least 75 cubic feet per minute, 30,000
standard cubic feet of storage capacity, a two-luise dispenser capable of fueling two vehicles simuh~cously
at a m;n;m„m rate of two gallons per minute per vehicle, and a magnetic card reader which is capable of
communicating with PFC's billing system The CNG dispenser shall be designed far public, as well as
Customer, access (the "Public Dispenser"). In the event that PFC, in its reasonable~udgmeat, determines that
the size of Customer's fleet requues additiaaal compressor capacity, PFC shall add such facilities within one
hundred eight (180) days
2.2 CNG Semce. PFC shall provide the Station with CNG service and bill Customer
therefor at the rate set in accordance with the terms of Amcle 7 hereof:
2.3 Maintenance PFC shall endeavor to maintain the Station in accordance with the
following principles:
2 3 I ltoutiae Mamteoaace PFC shall provide scheduled, routine maintenance service
for the term of Station ownership and shall repair or, at its option, replace, any defective materials or
workmanship at the Station at its own expeose At Customer's expense, PFC shall perform all other
maintenance and shall repau' or replace parts damaged by abuse a neglect on Customeis part. The customer
is not liable £or otherthud-Party negligence
2.3.2 Scheduhne. To the extent reasonably possible, maintenance will be performed
during such hours as to minimize Customer's "downtime". PFC and the Customer shall mutually agree on
such times.
2.3.3 Service Calls In the event of an emergency (such as fire or a dangerous situation
involving substantial risk of injury or material properly damage) at the Stahoq PFC shall respond as soon
as reasonably possible, but not more than one hour, following notification by Customer. In the event of other
serious operational difficulties, PFC shall respond anthm a oommercialty reasonable penod of time, but not
more than four hours, following notification by Customer Repaus shall be undertaken and completed with
reasonable commercial diligence, rm+e,~~ng the nature and extent of the releva~ problem(s). Costs shall
be borne by Customer or PFC m accordance with Section 2.3.1.
2 4 Trainine. PFC shall offer reasonable training programs to educate Customer's
operating personnel as to procedures fm the safe and efficient use of the Station, including, without
limitation, procedures relating to vehicle fueling, troubleshooting and emergencies.
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2.5 Compliance with Law. In performing its obligations under this Agreement, PFC
shall comply in all material respects with all applicable federal, state and local Iaws, regulations, ordinances
and rulings, including (but not limited to) those pertaining to health, safety, employment, construction and
environmental mattes.
2.6 PFC's Costs. PFC shall not charge Customer far the materials or labor utilized in
prrn+iding the services specified in tbis Article 2 In the event that additional services are requued involving
the expansion of the station, Customer and PFC will negotiate any additional charges.
2 7 Subco~actors. PFC agrees that all subcontractors used by PFC in the c~stiuc4on
of the Station will be Licensed and bonded by the State of Cafifarnia and wil[ be regaled to provide proof of
insurance prior to such subcontractor undertaking any walk
ARTICLE 3
CUSTOMER'S RESPONSIBILITIES
3.1 Maintenance of Premises. Customer shall maintain the Premises and the real
property in the immediate vicinity of the Statuin in a clean, safe, and rx>mmercially reasonable condition
suitable for vehicle refueling use.
3.2 Protection of PFC E ui meat Customer shall use reas~able commem~al care in
storing and protecting PFC's property, uicluding span part4 for the Station and the Station itself; provided,
that Customer shall have ao obhgatinn to insi>re the same or to indemnify PFC for loss or damage thereof,
except as expressly provided in Articles 10 and 11 of this Agreement
3 3 ltefueline Vehicles. Customer shall refuel CNG Vehicles and provide competent
Station operating personnel by employing personnel qualified to operate the Station m accordance with safe
procedures and the requirements of law, and by providing appropriate framing and supervision, including
(but not limited to) scheduling such employees' attendance at any framing sessions winch nary be provided
by PFC pursuant to Section 2.4 of this Agreement Notwithstanding the foregoing, Customer shall not be
obligated to refuel CNG Vehicles or provide Station operating personnel in connection with PFC's operation
of Public Dispenser
3 4 Compliance with Law. In performing its obligations under this Agreement,
Customer shall comply with all applicable federal, state and local laws, regulaticns, ordinances and nilings,
including (but not limited to) those pertaining to health, safety, employment and environmental matters
3 5 Payment of PFC Billings Customer shall pay all bills submitted by PFC witbm
flirty (30) days following receipt of invoice by Customer. For billing purposes, PFC shall provide Customer
with individual fueling cards for each of Customer's CNG vehicles which will enable Customer to track
individual fuel transactions for each CNG vehicle
3 6 Customer's Costs Except as otherwise specified in this Article 3 or as may be
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separately agreed to in writing by PFC, Customer shall not charge PFC for the materials ~ labor utihud m
provuhng the services specified in this Article 3 Customer shall be responsible for all taxes, maintenance
and repay costs not expressly assumed by PFC under Article 2
3.7 Pemuts Customer shall prrnnde, as promptly as possible, such permits as may be
requued by PFC to accomplish the installation of the Station, including, but not limned to, the compressor,
the fuel dispenser, the magnetic card reader, underground piping, electrical service and natural gas supply
line
3 8 Reimbursement by Customer Customer shall reimburse PFC for all costs incurred
by PFC relating to site preparation and paving, including costs for pemut fees (if any), driveways, utility
installation (rid user fees) and foundations far compressor equipmeot, fuel dispenser and magnetic car reader.
PFC shall seek c~ipetitive bids for such work and agrees anth Customer that such costs shall not exceed
$50,000. The remmbursement can consist of Custanias funds a other grant funds that the Customer submits
far a PFC submits on behalf of the Cushier. Customer agrees to reimburse PFC $45,000 at the completi~
of construction and the balance of $5,000 by the first anniversary of this agreement
ARTICLE 4
LICENSE TO USE PRE ES
4 1 Permitted Use To enable PFC to fulfill its obligations as set forth in Article 2,
Customer hereby licenses PFC to use the Premises for the purposes of constiuctiag (as may be necessary,
is PFC's reasonable discretion), owning, maintaining, and abandoning or aRmvmg the Station in accordance
with the terms and conchtions of this Agreement Customer shall not, and shall not permit others to, levy arty
rent, charge, lien or encumbrance rid expressly provided for in this Agreement against PFC f~ the use of
the Premises or the Station.
4.2 Clear Title Except as may be indicated on Schedule 4 2 hereto, Customs is, and
at all times during the term of this Agreement shall remain, the sole owner of fire Premises, free and clear of
all hens and encumbrances affecting the Statton or PFC's performance hereunder, provided that,
notwithstanding tbe foregoing, PFC shall have the right to grant a lien or encumbrance against its right, title
and interest in that portion of the Premises on which the Station is constructed., ar ~ which equipment
relating to the Statam rs utdined or steed to a ihnd party without the prior consent of Customer. Customer
shall, as a condition of PFC's obligations hereunder, provide PFC with satisfactory evidence of Customer's
clear, unencumbered title to the Premises and/or obtain the written consent to thu Agreement, in farm and
substance satisfactory to PFC, of all other purported owners or encumbrances of the Premises (such as any
lessor, lessee or mortgagee) Such consents shall be m recordable farm and may be recorded at PFC's request
and expense
4 3 Memorandum of Agreement. Upon PFC's request, Customer shall execute a
memorandum of this Agreement m recordable form, which may be recorded at PFC's request and expense
4.4 Abandonment or Removal Unless otherwise agreed to by the Parties in wasting,
upon termination of this Agreement PFC shall have the right, but not the obligation, at its sole expense, to
either (i) remove the Station (including arty and all merchandise, egmpmmt, fumish;ng~~ factures, machinery
and tools relating to the Stations, together with all additions, substitutions, rephrcements and mrprwements
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W the same) from the Premises, or (u) abandon the same in place by quitclaiming all of its nght, title and
interest therein to Customer; and therea8er PFC shall have no further rights or obligations under this
Agreement with respect to the Station or the Premises.
ARTICLE 5
TERM AND TERMINATION
5 1 Term The initial term of this Agreement shall be for ten (10) years commencing
on the date hereof This Agreement shall automatically renew under the same terms and c~oditions for
consecutive five (5) year terms unless (i) PFC fives notice of any changes m such terms or conditions to
Customer at least two (2) weeks prig to such renewal or (n) Customer gives PFC wntten notice of
termination at least one (1) month pnar to such renewal 1n the event of changes is the terms or conditions
hereof, such changes shall be agreed to m writing between the Parties.
5 2 Prematiiro Removal Customer agrees to (a) use the Station as its exclusive fuel
source for CNG Vehicles during the term of this Agreement (b) have in operating not less thaw six (6)
dedicated CNG vehicles by the second anniversary of this Agreement and (c) purchase dedicated CNG
vehicles for all subsequent years of this Agreement when gasoline or diesel vehicles are replaced; Provided,
suitable original equipment manufacdue vehicles are available. However, that in the event of an emergency,
Customer shaIl be entitled to purchase CNG at kxations other than the Station. If Customer's CNG vehicles
deviate from the requirements set forth above, PFC shall have the option, notwithstanding airy other
provision in this Agreement to the contrary, to rive the Station and Customer agrees to pay fa the cost
of such removal
ARTICLE 6
PFC'S AND THIRD PARTIES' USE OF STATION
6 1 Fleet Access PFC shall pay Customer the amount of $0.01 per gasoline gallon
eginvalent (125,000 BTU/gallon) of CNG (a "GGE") sold at the Station's public access CNG dispenser
Payments relating to this Article 6 shall be made by PFC on a quarterly basis within ten (10) business days
following the end of each calendar quarter
6 2 Addttwnal Fleet Users. Notvnthstaoding anything contained herein to the contrary,
use of the Station by any new or additional fleets shall be subject to PFC's prior credit review, and the
appropnate officials of such new ~ addmonal fleets shall sign ,,,~„n,,,~ and indemnification agreements
with Customer and PFC pnor to using the Station, Provided, that this Section 6.2 shall not apply to
reasonable public usage of the Public Dispenser
ARTICLE 7
PURCHASE OF CNG
7 I of CNG. Subject to Sechoa 7 2 below, PFC shall provide Customer with
CNG at a pnce of $ 95 pis GGE during the first year of this Agreement Thereafter, the price per GGE
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charged by PFC shall be as determined from time to trme by PFC provided, however, that in no event shall
such pace durng any subsequent year exceed the amount by which the Consumer Pnce Index, as published
in the Wall Sheet Journal, has iruxeased from the date hereof through the date m question. ht addition to the
forgoing, Customer shall pay any and all applicable taxes and similar charges (including, but not limited to,
any real property taxes related to the Premises)
7 2 I)iacormt Pricine. Notwithstandingthe provisions of Section 7 1 above, the price
per GGE applicable to Customer pursuant to the pmvisrons of Section 7.1 above shall be subject to certain
volume incentive discormts described in this Sxtion 7.2. Ihrring any calendar month during fire teem of this
Agreement, the price per GGE shall be reduced with respect to such mmth's purchases m accordance with
the following table•
Number of GGE
Purchased by Customer
Ihmngmonth
Amrnint of Reduction
In Price
Less than 2,000
2,000 - 2,499
2,500 - 2,999
3,000 - 3,499
3,500 - 3,999
4,000 and above
No Reduction
$0 Ol
0 02
0 03
0 04
0.05
ARTICLE 8
CALIFORNIA USE L TAX
ht aceordance w+rth the California Use Fuel Tax Law, PFC is currently requued to collect
and remit catam state taxes, including use fuel taxes, on CNG sold or delivered by the Station, subject to
certain exceptions, as specified in Regulation 1318 of the Cahfarma Board of Equabzatron If Customer
qualifies for one of these exceptions, Customs shall furnish to PFC appraprrate certification suthonzing
non-payment of tax as specified m Use Fuel Tax Regulations 1319, 1320 and 1323 if Customer fails to
maintain its exception status, or for a>ry other reason Customer's certification becomes invalid without
Customer notifying PFC thereof; Customer agrees to indenmifY PFC for all taxes, penalties and interest on
underpayments pursuant thereto. Notwithstanding anything contained herein to the cxtntrary, PFC shall be
responsible for collecting and remitting all state and federal fuel taxes payable by Customer and relating to
the terms of this Agreement
ARTICLE 9
PUBLICTTY
91 I>emonsfration. At the request of PFC, Customer shall assist PFC is hosting
demonstrations and seminars for mterosted members of the public, press and other fleet operators As part
of such demonstration, CNG Vehicles shall be driven over a short mute by Customer drivers.
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9 2 Mutual Approval Customer and PFC shall each secure the pnor wntten cronseut
of the other before using the other Party's name in any publication or advettisement, which conseat shall not
be »n*PA~+++Ably withheld
ARTICLE 10
INDEMNIFICATION LIlyIITATION OF L ~~II,ITY
10 1 Customer. Customer agrees to defend, rndeemaify and hold PFC harmless from and
against any and all hability, loss, expense, attorneys' fees, or claims (including claims by third parties) for
injury ce damages ansmg out of the performance of this Ageemmt but only m proportion to and to the extcet
such liability, loss, expense, attorneys' fees or claims for injury or damages are caused by or result from the
negligent or wrongful acts or omissions (including ~Y material breaches of its obligations under this
Agreement) of Customer, its officers, agents, or employees.
10.2 PFC PFC agrees to defend, indemnity and hold Customer harmless fipm and
against a~ and all habilriy, loss, expense, attorneys' fees, or claims (including chums by thud parties) fa
inprry err damages ansmg out of the performance of this Agreement but only m proportion to and to the extent
such liability, loss, expense, attorney's fees or claims far injury or damages are caused by or result from the
neghgept or wrongful acts or omissions (including a~ material breaches of its obligations under this
Agreement) of PFC, rts officers, agents, or employees
10.3 Disclaimer of hrmlied Warranties -PFC. Except as expressly set froth is this
Agreement, PFC makes no representations or warra~ies, express or ingihed, widr respect to the Station and
makes no warranties, express err implied, of merchantability or fitness for intended use
10 4 Discla~ier of lmolied Warranties -Customer Except as expressly set forth in this
Agreement, including the attached descnpti~ of the Premises, Customer makes no representations or
warranties, express or implied, regarding the Premises and makes no warranties, express or implied, of
merchantability or fitness far intended use.
10.5 Lim@ation of Liability. Neither Party shal(be liable to the other for damages to the
extent caused or contnbuted to by matters beyond the respearve Party's reasonable control or by the other
Party, nor, in a~+ event, far a~ consequemral or punitive damages, ce damages measured by loss of profits
10 6 Dispute Resolution. tiny dispute, c~troversy or claim ansmg out of err relating to
this Agreement or any c~tract or agreement entered into pursuant hereto or the performance by the parties
of its or their terms shall be settled by binding arbitration held m Los Angeles, Cahforriia, m accordance with
the Commercial Arbitration Rules of the American Arbitration Association then in effect, except as
specifically otherwise provided m this Section. One neutral arbrhatar shall be appointed The arbitrator shall
have authcttrty to award relief under legal err equitable principles, including interim err preliminary relief; and
to allocate responsibility for the costs of the arbitration and to award recovery of attorneys' fees and expenses
in such manner as is determined to be appropnate by the arbitrator. Judgment upon the award rendered by
the atbrti'atot may be entered in a~ court having m personam and subject matter lunsdiction. All
proceedings under this Searon, and all evidence given or discovered pursuapf hereto, shall be maintained in
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confidence by the Parties. The fact that the dispute resolution procedures specified in this Section shall have
been ar may be invoked shall not excuse a~ Party from performing its obligations under this Agreement and
during the pendency of any such procedure, the Parties shall continue to perform their respective obligations
in good faith, subject to any nghts to terminate thu Agreement that maybe available to each Party.
ARTICLE I1
INSURANCE
PFC „ndnrttandc that the Customer is self-insured and that the Customer shall maintain
such ,*~,~*ance m full force and effect dunng the hfe of this Agrce~nt
Customer shall send certificates of self-insurance evidencing such coverage within thvty
(30) days after the date of this Agreement to.
Prclcens Fuel Corp.
3030 Old Ranch Parkway
Smte 280
Seal Beach, CA 90740
Attn: Mr. Andrew J Iattlefair
ar Mr James N. Hanger
Fax• (562)493-4532
and
Dick Grant, Controller
8117 Freston Road, Smte 260
Dallas, TX 75225
Fax (214)750-9773
ARTICLE 12
NOTICES
12.1 Reoresentatives Each Party hereby designates the following as its representatives
for purposes of the admmrstration of this Agreement Such designations may be changed from time to tmre
putsuantto Section 12.3
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p, ~~-(
.l
PFC. Andrew J. Littlefarr l /`.!
or James N liareer .. • ~ ;. L
Telephone (562) 493-2804 ~~
Fax (560 493-4532
Customer Keith R Till City Manager
Telephone. (5621431-2527
Fax (5621430-8763
as
Telephone. Stephen G Badum_ Director of Public Works
Fax (562) 430.8763
12.2 Noh~'c• ss Any nonce provided for in this Agrcemcnt, or a~+ notice, which either
Party may desue to grve to the other, shall be m wrrting and shall only be deemed to be duly delivered upon
receipt. Such notice shall in each instance be seat (i) by a telefax, confirmed by a telephone call as soon as
possrbie during common business hours, anth a confirming "hazel" copy of the telefax mailed within twenty-
fomhours with postage prepaid, ~ (h) by certified mail, return receipt requested, to the address of the Party
urdicated below, as such may be changed pursuant to Section 12 3
PFC• Ptckens Fuel Corp
3030 Old Ranch Parkway
Smte 280
Seal Beach, CA 90470
Atta Mr. Andrew J Littlefair
or Mr. James N Barger
Fax (562)493-4532
With a copy to. Drck Grant, Controller
8117 Preston Road, Suite 260
Dallas, TX 75225
Fax: (214)750-9773
Crty of Seal Beach 211 Erghth Street
Seal Beach, CA 90740
Attention. Keith Till, Crty Manager
With a copy to. 211 Eighth Street
Seal Beach, CA 90740
Attention. Steve Badum, Duector of Public Works
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12.3 Chi Father Party may change its representative or address for notice by
sending nonce of such change to the other Party at the address speciSed m Section 12 2 (as the same may
be changed from time to trine).
ARTICLE 13
MISCELLANEOUS
13.1 Assignment Neither Party shall have the nght to assign its rights or obligations
hereunder without obtaining the prior wntten consent of the other (which t shall not be „~*PA~+„Ably
withheld), and any attempted assignment without such peer wntt~ consent shaIl be void Permitted assigns
and successors m interest shall have the benefit of, anti shall be bound by, all terms and conditions of this
Agreemet Notwithstanding anything contained herein to the c~trary, (i) PFC shall have the nght at atiy
time, but not the obligation, to assign its nghts and obligations under this Agreement to a limited liability
company under the same controlling interest as PFC, and (u) either Party may assign this Agreement to such
Party's parent corporation or a wholly-0vvned subsidiary of the Party.
13.2 Complete Understandine. Written Modifications. This Agreement (i) shall be
governed and construed in accordance with the internal laws of the State of California, (ii) expresses the
entire agreement of the Parties month respect to the subJect matter hereof, and (iii) supersedes all pear
understandings, arrangements, representations and agreements betan~ tbe Parties regarding such subJect
mattQ. Except as provided m Secti~ 13 2 hereof, no term err condihea hereof shall be amended, modified
or waived except through an instrument in writing, executed by the Party or Parties to be bound thereby, rear,
m a~ event, through course of performance, course of dealing or usage of trade
13.3 Ham' , . The headings in this Agreement are for convenience and reference cult',
and shall not affect the interpretatton of this Agreement
13.4 No Joint Vendee PFC shall perform its dirties herein as an independent candactar.
Nothing contained herein shall be r~nsidered to create the relationship of employer and employee,
P~~~P, Joint venture or other association between tbe Parties, except as pnncipal and independent
Contractor agent
13.5 Watver. No waives by either Party of arty one or more defaults by the other in the
performance of airy provisions of this Agreement shall operate or be construed as a waiver of a~ other
default or defaults, whether of a lr7u ce different character. No waiver a modiScation of this Agreement sbaIl
occur as the result of any cause of performance a usage of trade
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IN WITNESS WHEREOF, the Parkes hereto have caused this Agrcement to be sued by
then duly suthoriud representatroes, effective as of the date first sd forth above
PICKENS FUEL CORD City of Seal Beach
~,: o
Andrew J. Litt fair, Pnsid~nt Keith R Till, Cay Manager
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