AGREEMENT FOR THE MANAGEMENT
AND OPERATION OF
THE COMPRESSED NATURAL GAS FUEL STATION
BY AND BETWEEN
THE CITY OF BURBANK
AND
ENRG FUEL USA, INC.
Attachment 3 – Operating Agreement
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Attachment 3 - Page 2
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NO. SECTION PAGE
1. PREMISES ................................................................................................................ 1
2. TERM ........................................................................................................................ 2
3. OPERATOR'S BASIC SERVICE OBLIGATIONS ...................................................... 3
4. COMPENSATION FOR OPERATIONAL SERVICES OF OPERATOR. .................... 6
5. ACCOUNTING RECORDS ........................................................................................ 7
6. OPERATING RESPONSIBILITIES ............................................................................ 8
7. DESTRUCTION OF PREMISES ............................................................................. 12
8. INDEPENDENT OPERATOR .................................................................................. 14
9. HOLD HARMLESS AND INDEMNIFICATION ......................................................... 14
10. INSURANCE ........................................................................................................... 15
11. TAXES AND ASSESSMENTS ................................................................................ 16
12. TRANSFERS ........................................................................................................... 16
13. NON-DISCRIMINATION AND CIVIL RIGHTS COMPLIANCE ................................ 18
14. EASEMENTS .......................................................................................................... 19
15. TERMINATION ........................................................................................................ 20
16. EVENTS OF DEFAULT ........................................................................................... 20
17. DEFAULT FOR INSOLVENCy ................................................................................ 22
18. WAIVER .................................................................................................................. 23
19. RIGHT OF ENTRy .................................................................................................. 24
20. SURRENDER .......................................................................................................... 25
21. INTERPRETATION ................................................................................................. 25
22. FORCE MAJEUREITIME EXTENSIONS ................................................................ 26
23. OPERATORS NON-COMPLIANCE AND LIQUIDATED DAMAGES ....................... 26
24. NOTICES ................................................................................................................. 27
25. SEVERABILITY ....................................................................................................... 27
26. CONTRACT ENFORCEMENT AND AMENDMENTS TO THIS AGREEMENT ...... 27
27. ENTIRE AGREEMENT ............................................................................................ 29 Attachment 3 - Page 3
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AGREEMENT FOR THE MANAGEMENT AND
OPERATION OF THE COMPRESSED NATURAL GAS FUEL STATION
THIS AGREEMENT, made and entered into this 5th day of
November 2002 ----------------, ,
BY AND BETWEEN CITY OF BURBANK, a municipal corporation, hereinafter referred to as "City"
AND
ENRG Fuel USA, Inc., hereinafter referred to as "Operator", A. On November 5, 2002 City entered into a design and
construction agreement with Operator to design and construct a compressed natural gas (CNG) fueling facility.
B. As a condition of Operator's proposal as the design-Operator for the CNG fueling facility, Operator agreed to operate the facility and act as a "fuel provider" to the City in the development and operation of the compressed natural gas (CNG) fueling facility, hereinafter referred to as CNG Fuel Station or Facility.
1. PREMISES
1.01 City and Operator agree that Operator shall manage and operate the CNG fuel station located at 810 N. Lake Street, Burbank, CA. Upon acceptance of the Facility, Operator shall be responsible for meeting the fuel-dispensing specifications listed under 4.1 of the Construction Specifications, except for scheduled down time for preventive maintenance, as approved by the City.
1.02 Such operation will include providing all scheduled and unscheduled consumables, parts, labor, maintenance and repairs required to maintain facility performance in compliance with the specifications contained in this Agreement, 1 Attachment 3 - Page 4
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as well as maintenance of gas, water, telephone and electricity utility service and payment of all related costs.
1.03 Operator accepts the premises in its present condition and agrees to make no demands upon City for any improvements or alteration thereof.
1.04 Any improvements, additions, alterations or changes to the premises shall be subject to prior approval by the Director or his designee.
1.05 Operator hereby acknowledges the title of City and/or any other public agencies having jurisdiction thereover, in and to the premises and the improvements located thereon, and covenants and agrees never to assail, contest or resist said title.
1.06 Ownership of all existing structures, and of all structures, buildings and/or improvements constructed by Operator upon the premises and all alterations, additions or betterments thereto, shall immediately vest and be vested in City at all times during and after the term hereof. Such structures, buildings and/or improvement shall be surrendered to City upon termination of this Agreement.
2. TERM
2.01 The term of this Agreement shall be for a period of ten (10) years commencing on the first day of the calendar month next succeeding approval by City.
Council. However, in the event said date is less than twenty-one (21) days from the date of said approval, the term shall commence on the first day of the second calendar month following the date of approval. During the last year of this Agreement the parties may mutually agree to extend the term of the Agreement on a month-to-month pending renewal of the Agreement or the commencement of management and operation of the premises by a new operator.
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Operator shall provide and pay for all maintenance, repairs, modifications and upgrades for a period of ten years following acceptance of the Facility as complete by the City
2.02 This agreement may be renewed for an additional term upon the mutual written consent of both parties. The additional term may be for less than ten (10) years. The Operator shall indicate in writing its intentions regarding renewal at least one (1) year prior to the expiration of this agreement.
3. OPERATOR'S BASIC SERVICE OBLIGATIONS
3.01 General Requirements
Operator shall provide and pay for all maintenance as required to keep the Facility fully functional, and clean, in accordance with these specifications, including all labor, consumables, repair, rebuild and replacement costs. For the period of this Agreement, Operator shall provide all preventative maintenance of the entire CNG facility by experienced and qualified personnel. PM shall include all weekly, monthly and annual service as required and recommended by the manufacturers of the systems and components being provided by the Operator.
The only costs associated with maintenance and operation of the Facility that are not the responsibility of the Operator are those related to damage, neglect or misuse not caused or controlled by the Operator, such as a dispenser drive-away by a City or non City driver. However, the City shall not be responsible for damage caused by non-City drivers or other non-City causes.
3.02 Fuel Quality
3.02.1 Moisture Content. CNG dispensed to vehicles shall meet the moisture-content requirement as specified by SAE standard J-1616, including no more than .5 lb. moisture content per MMSCF.
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3.02.2 Oil Carryover.
more than 40 PPM of oil by weight.
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CNG dispensed to vehicles shall include no
3.02.3 Noncompliance With Specifications. If City has reason to believe that CNG does not meet requirements listed under 3.02.2, Operator shall have CNG from dispenser nozzle tested by a third-party laboratory approved by the City to test for the suspected violation(s). The cost of any test with a positive result (Le. violation of specification) shall be borne by the Operator. The cost of any test with a negative result (Le. non-violation of specification) shall be borne by the City. Violations not corrected within (5) working days of the confirmation of the violation shall be subject to liquidated damages for inoperative equipment, as specified herein.
3.03 Training
3.03.1 General. Operator shall provide training to City personnel for the basic operation of the Facility. If approved by the City, such training may be provided in advance of the Facility being accepted as complete by the City. Such training shall include the use of:
• Manual and automatic operation of compressors, electrical switch gear and control panel, to include all shutdowns, indicator lights, alarms and resets as needed.
• Dome-load panel and time-fill metering system (as needed). • Emergency-shutdown system.
3.03.2 Fueling With Fast-Fill Dispenser. Operator shall provide OSHA approved training to City NGV operators for vehicle fueling using the fast-fill dispenser, including fuel-management systems, and differences between 3000-psig and 3600-psig 4 Attachment 3 - Page 7
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nozzles. The Operator shall provide three one-hour orientation sessions to City NGV operators. The sessions will be held on three separate days. Thereafter, at reasonable intervals, Operator shall provide refresher sessions at no charge to the City.
3.03.3 Emergency Response. Operator shall provide response training in case of high-discharge CNG venting of Facility equipment, of vehicle during fueling or other emergency situation. Such training shall be provided to and coordinated with the local fire department.
3.04 Days and Hours of Operation
The hours of operation shall be twenty-four (24) hours a day, seven (7) days a week. Any changes in the days and hours of operation shall be subject to approval by the Director, or his designee.
3.05 Building and Equipment Maintenance Services
Should Operator fail, after ten (10) days notice from City of the need thereof, to perform its obligations required hereunder, City in addition to all other available remedies may, but shall not be obligated to; exercise its Right of Entry as provided hereinafter. City may enter upon the premises and perform Operator's failed obligations, using any equipment or materials on the premises suitable for such purposes. Operator shall forthwith on demand reimburse City for its costs so incurred including direct and indirect overhead costs as determined by the Director, or his designee.
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4. COMPENSATION FOR OPERATIONAL SERVICES OF OPERATOR
4.01 Operator shall provide compressed natural gas at the price as provided in Exhibit A of this Agreement.
4.02 Fuel prices will be adjusted monthly based on the following price formulas.
City Fleet
• SoCal Gas G-NGV Tarrif rate + up to
$0.42/therm (margin) + state taxes
• Will not pay fees for accepting Visa,
MC, and other credit cards
• Margin is applied to all throughput
levels
• Power costs are included (demand
and energy)
• ENRG's margin may be adjusted
annually for increases in CPI
• Ability to obtain Council approval for
extraordinary increases in costs
(power costs or other unique
circumstances)
• Utility Users Tax included
Private Fleet
• SoCal Gas G-NGV Tarrif rate + up to
$0.42/therm (margin) + state and
federal taxes
• Plus $0.04/therm to cover fees for
accepting Visa, MC, and other credit
cards, to customer using credit cards
• Margin is applied to all throughput
levels
• Power costs are included (demand
and energy)
• ENRG's margin may be adjusted
annually for increases in CPI
• Ability to obtain Council approval for
extraordinary increases in costs
(power costs or other unique
circumstances)
• Utility Users Tax included
4.03 Minimum fuel purchase from the City of 3,000 therms/month. Fuel purchase requirement applicable beginning 12 months after station opening.
4.04 ENRG may honor existing promotional and special pricing agreements with its customers that may result in retail customers paying more or less than the posted retail price.
4.05 ENRG will not pay a royalty to the City.
4.06 Operator guarantees the net pricing as submitted in their price proposal, regardless of the status of their grants. Operator guarantees their grants to not preclude other funding sources secured by the City.
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5. ACCOUNTING RECORDS
5.01 Operator shall download transaction data from the terminal regularly and bill each fleet on a monthly basis. The bill shall list each transaction for that fleet, including timet date stamp, hose 10, card and vehicle 10, driver, City department account, fuel volume and cost. To the extent practical, all billing shall cycle and commence on the first day of. each month. The monthly bills shall itemize SoCalGas and BWP utility charges to Operator.
5.02 Monitor and submit invoices (to non-City fleets) for the consumption of CNG by other NGV-f1eet customers monthly on a per gasoline-gallon equivalent (GGE) basis as repayment for the Operator's costs as specified in Section 6. 0 associated with dispensing CNG to these fleets. In preparing invoices, Operator will be required to collect, account for and pay all operational costs, as well as all applicable taxes and fees.
5.03 Operator shall be required to maintain a method of accounting, to the satisfaction of the City, which correctly and accurately reflects the gross receipts, and d isbu rsements
5.04 All documents, books and accounting records shall be open for inspection and re-inspection at any reasonable time during the term of this Agreement and for four (4) years thereafter. In addition, the City or its designated auditor, at the City's expense, may from time to time conduct an audit and re-audit of the books and business conducted by Operator and observe the operation of the business so that accuracy of the above records can be confirmed. All information obtained in connection with the City's inspection of records or audit shall be treated as confidential information and exempt from public disclosure thereof to the extent permitted under the California Public ( Records Act. City shall not be liable or responsible for the disclosure of any such records including those marked trade secrets, confidential, or proprietary, if such 7 Attachment 3 - Page 10
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disclosure is deemed to be required by law, or by an order of a court of competent ju risd iction.
5.05 Operator shall invoice City monthly on a per-CNG-therm basis as repayment for the Operator's Facility operations costs (Le. uncompressed gas, electrical power, overhead, operation, maintenance and profit) associated with dispensing CNG to the City. Cost of CNG charged to City shall be consistent with the Operator's Price Proposal of Part III of the Request for Proposals, which is attached to this Agreement and incorporated as though set forth fully hereat. In preparing invoices, Operator will be , required to collect, account for and pay all operational costs, as well as all applicable taxes and fees.
6. OPERATING RESPONSIBILITIES
6.01 Compliance with Laws, Rules and Regulations
Operator shall conform to an abide by all municipal ordinances, and all state and federal laws and regulations, insofar as the same or any of them are applicable; and where permits and/or licenses are required for the operation of the Facility, the same must be first obtained from the regulatory agency having jurisdiction thereover. In addition, Operator shall conform to and abide by all rules and regulations of the City Council and the Director, or his designee, insofar as the same or any of them are applicable.
6.02 Disorderly Persons
Operator shall exercise every reasonable effort not to allow any loud, boisterous or disorderly persons to loiter about the demised premises.
6.03 Illegal Activities
Operator shall not knowingly permit any illegal activities to be conducted upon the demised premises.
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6.04 Signs
Operator shall not post signs upon the demised premises or improvements thereon, unless prior written approval therefor is obtained from the Director, or his designee.
6.05 Public Use
Operator will be allowed and encouraged to develop the
additional (non-City) load and customer base, conditional on this load not significantly impacting the City's ability to fuel their NGVs as determined by them. Upon notice from the Director or their designee, Operator shall impose partial lockout periods during each day during which the City fleets would have priority or exclusive access to the Facility so that their vehicles can achieve the specified throughout requirements.
6.06 Operator's Staff and Employment Practices
6.06.1 Operator shall maintain an adequate and proper staff.
Maintenance personnel that will be responding to the Project Manager and callout events shall have demonstrated experience and competency in maintaining other similar CNG equipment with at least two years current experience. The Director, or his designee, may at any time give Operator written notice to the effect that the conduct or action of a designated employee of Operator is, in the reasonable belief of the Director, or his designee, detrimental to the interest of the public patronizing the premises.
Following Director's, or his designee's, written notice therefor Operator shall, at the Director's or his designee's discretion: (1) terminate such employee's work assignment at the demised premises or (2) Operator shall meet with representatives of the Director to consider the appropriate course of action with respect to such matter and Operator shall take reasonable measures under the circumstances to assure the Director, or his 9 Attachment 3 - Page 12
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designee, that the conduct and activities of Operator's employee will not be detrimental to the interest of the public patronizing the premises.
6.06.2 Operator's Project Manager assigned to this project shall be experienced in work similar to that proposed herein with at least two years of direct or closely related work experience. Operator warrants that the Project Manager named in its proposal will remain as the Project Manager through duration of contract, unless a replacement PM is approved in writing by the City.
6.06.3 Operator warrants that it fully complies with all laws regarding employment of aliens and others, and that all its employment of aliens and others, and that all its employees performing services hereunder meet the citizenship or alien status requirements contained in federal and state statutes and regulations including, but not limited to, the Immigration Reform and Control Act of 1986 (P.L. 99-603). Operator shall obtain, from all covered employees performing services hereunder, all verification and other documentation of employment eligibility status required by federal statutes and regulations as they currently exist and as they may be hereafter amended.
Operator shall retain such documentation for all covered employees for the period prescribed by law. Operator shall indemnify, defend, and hold harmless, the City, its officers and employees from employer sanctions and any other liability which may be assessed against Operator or City or both in connection with any alleged violation of federal statutes or regulations pertaining to the eligibility for employment of persons performing services under this Agreement.
6.07 Utilities
Operator shall Initiate, maintain, and pay for electric, water, natural gas, and telephone utility services that are dedicated to the operation of the Facility and production and dispensing of CNG. Operator shall be responsible for accommodating 10 Attachment 3 - Page 13
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and paying for additional power requirements for any anticipated expansion of the Facility's capacity.
6.08 Sanitation
No offensive matter or refuse or substance constituting an unnecessary, unreasonable, or unlawful fire hazard, or material detrimental to the public health shall be permitted to remain on the premises and Operator shall prevent any accumulation thereof from occurring.
6.09 Security Devices
Operator may provide any legal devices, mechanism, or equipment designed for the purpose of protecting the premises from theft, burglary or vandalism, provided written approval for installation thereof is first obtained from the Director, or his designee. All purchases and installation thereof shall be at Operator's expense. During the last thirty (30) days preceding the termination of this Agreement, Operator shall remove same from the premises, other than for those items of personality which have been furnished by City, or have been so affixed that their removal therefrom cannot be accomplished without damage to the realty as determined by the Director or his designee.
6.10 Safety
Operator shall immediately correct any unsafe condition of the premises or notify the Director, or his designee, as well as any unsafe practices occurring thereon. If an attendant is on site, Operator shall obtain emergency medical care for any member of the public who is in need thereof, because of illness, or injury occurring on the premises. Operator shall cooperate fully with City in the investigation of any injury or death occurring on the premises, including a prompt report thereof to the Director or his designee.
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6.11 Advertising and Promotional Materials
Operator shall not promulgate nor caused to be distributed any advertising or promotional materials unless prior approval thereof is obtained from Director. Said approval shall not be unreasonably withheld or delayed and shall be deemed to be given if no objection is made within fifteen (15) days following the request for approval.
Such materials include, but are not limited to; advertising in newspaper, magazines and trade journals, and radio and/or television commercials.
7. DESTRUCTION OF PREMISES
7.01 In the event the premises shall be totally or partially destroyed by a risk covered by the insurance coverage required herein, Operator shall either restore the premises or terminate this Agreement. City shall make the loss adjustment with the insurance company insuring the loss and receive payment of the proceeds of insurance.
If the destruction is from a risk for which insurance coverage is not required or provided under said policy of insurance, City shall either restore the premises or terminate this Agreement. Said insurance proceeds, if any, shall be held for the benefit of Operator only in the event of an election by Operator to restore the premises and shall be disbursed in installments as construction progresses for payment of the costs of restoration upon satisfactory performance of the work required, as evidenced by certification of completion by the Director and release of mechanic's liens by all persons furnishing labor and materials thereon. If the proceeds of insurance are insufficient to pay the actual costs of restoration, Operator shall deposit the amount of the deficiency with the City upon demand therefor by the Director or his designee, and said sums shall be held for payment of said costs and disbursed in the manner heretofore provided.
Any undistributed funds shall be retained by City and credited over the remaining term of this Agreement.
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7.02 If the premises are restored, this Agreement shall continue in full force and effect.
7.03 Operator shall cooperate in the restoration of the premises by vacating and removing therefrom all items of inventory, trade fixtures, equipment and furnishings for such periods as are required for the restoration thereof.
7.04 The aforementioned provisions of this section shall also be applicable in the event of performance of work on the premises that requires partial or total closure thereof, except that the abatement and/or other relief to be provided shall be based upon the extent the Director or his designee may determine that the reduction in the use of the premises due to the partial or total closure thereof, has affected the Operator's operations.
7.05 If the Facility operated by the Operator shall be so damaged by fire, earthquake, elements, casualty, war, insurrection, riot, public disorder, any authorized act upon the part of the City or any governmental authority, or any cause or happening as to be substantially destroyed to such an extent that the same cannot be used, then this agreement, at the option of either party, shall terminate.
But in the event of any partial damage or destruction, City, at its option, may restore said facilities and course to their previous condition. Under no circumstances shall the City indemnity the Operator for any loss of income during such partial or total loss of the use of the area.
7.06 Operator agrees to accept the remedy heretofore provided in the event of construction upon the premises, and hereby waives any and all additional rights and remedies for relief or compensation that are presently available or may be made available hereafter under the laws and statutes of this 13 Attachment 3 - Page 16
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8. INDEPENDENT OPERATOR
8.01 This agreement is by and between the City of Burbank and Operator and is not intended, and shall not be construed, to create the relationship of agent, servant, employee, partnership, joint venture or association, as between City and Operator.
8.02 Operator understands and agrees that all persons furnishing services to City pursuant to this Agreement are, for purposes of Workers' Compensation liability, employees solely of Operator and not of City.
8.03 Operator shall bear the sole responsibility and liability for furnishing Worker's Compensation benefits to any person for injuries from or connected with services performed on behalf of Operator pursuant to this Agreement.
9. HOLD HARMLESS AND INDEMNIFICATION
City has retained the services of Operator to be responsible for the operation and management of the CNG Fuel Station. Operator designed and constructed the CNG Fuel Station. Operator has represented that it has specialized expertise in the area of CNG Fuel Station operation and management and City has relied upon said representations in selecting Operator for this Agreement. City relies on the expertise of Operator to oversee the operation of the Facility and to promptly notify City in writing of any dangerous conditions occurring thereon caused or maintained by any person or entity, including the City. Operator agrees to defend, indemnify and save harmless the City, its agents, officers and employees from and against any and all claims, demands, losses, damages, costs, liabilities and expenses (including, but not limited to, attorney's fees and costs of suit) of whatever kind or character, on account of any actual or alleged loss, injury or damages to any person, firm, corporation or to any property, arising out of 14 Attachment 3 - Page 17
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or in connection with any person's use of or presence at the station or Operator's performance of this Agreement, including any worker's compensation suits, liability or expense, except in cases of the sole gross negligence or willful misconduct of the City.
Operator's duty to indemnify City shall survive the expiration or other termination of this Agreement.
10. INSURANCE
10.01 During the term of this Agreement, Operator shall carry public liability insurance with an insurance company qualified to do business in the State of California (except "off-shore" companies), which insurance company shall have Best Rating of B+ or better. Said insurance shall be in an amount on the effective date of this agreement, with limits no less than $1,000,000, combined single limit for bodily injury, property damage, products liability and liquor liability, and subsequent thereto, in amounts reasonably satisfactory to City. Operator shall also provide City with the full name, address, and telephone number of the insurance carrier and a copy of the policy for inspection by the City. City shall, only in the event it does not purchase a policy for itself, reimburse Operator fifty percent for any sums expended for premium on the public liability insurance policy.
Operator shall supply City with a certificate of insurance and an additional insured endorsement in a form acceptable to the City Attorney, which names the City, its officers, agents and employees as additional insureds, and provides that said insurance shall be deemed primary such that any other insurance carried by the City shall be deemed excess thereto. City may require, at any time, additional proof of insurance, including copies of policies.
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10.02 Operator shall maintain workers' compensation insurance for all its employees who are in any way connected with the performance under this lease. Such insurance shall comply with all applicable state laws. Operator shall annually provide City with a certificate of insurance showing proof of such insurance acceptable to City.
11. TAXES AND ASSESSMENTS
11.01 The contractual rights provided by this Agreement may be subject to real property taxation and/or assessment thereon, and in the event thereof, Operator shall pay before delinquency all lawful taxes, including but not limited to; possessory interest taxes, assessments, fees or charges which at any time may be levied by the State, County, City or any other tax or assessment-levying body upon the premises and any improvements located thereon.
11.02 Operator shall also pay all taxes, assessments, fees and charges on goods, merchandise, fixtures, appliances and equipment owned or used therein.
12. TRANSFERS
12.01 Operator shall not, without the prior written consent of the Director or his designee assign, hypothecate, or mortgage this Agreement, or sublease or sublicense any portion of the premises. Any attempted assignment, hypothecation, mortgage, sublease or sublicense without the consent of the Director or his designee shall render this Agreement null and void.
12.02 Each and all of the provisions, agreements, terms, covenants and conditions herein contained to be performed by Operator shall be binding upon any transferee thereof.
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12.03 The operations herein authorized shall not be transferable by testamentary disposition or the State Laws of interstate succession, as the rights, privileges, and use conferred by this Agreement shall terminate prior to the date for expiration thereof in the event of the death of Operator occurring within the term herein provided. Additionally, neither this Agreement nor any interest therein shall be transferable in proceedings in attachment or execution against Operator or in voluntary or involuntary proceedings in bankruptcy or insolvency or receivership taken by or against Operator, or by an process of law including proceedings under Chapter X and XI of the Bankruptcy Act.
12.04 Shareholders and/or partners of Operator may transfer, sell, exchange, assign or divest themselves of any interest they may have therein. However, in the event any such sale, transfer, exchange, assignment or divestment is effected in such a way as to give majority control of Operator to any persons, corporation, partnership or legal entity other than the majority controlling interest therein at the time of execution of this Agreement, approval thereof shall be required. Consent to any such transfer shall be refused, if the Director finds that the transferee is lacking in experience and/or financial ability to render and provide services for the operation of the fuel station. The provisions of this section shall not apply to initial public offering of shares in accordance with public listing on a recognized stock exchange.
12.05 The prohibition herein contained shall not be applicable with respect to transfers of this Agreement arising from the exercise of a power of sale or judicial foreclosure pursuant to the terms and conditions of a hypothecation or mortgage previously approved by the Director or his designee.
12.06 In reference to the previous Section, the City consent with regard to successive transfers of this Agreement arising from the exercise of a power of sale or 17 Attachment 3 - Page 20
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judicial foreclosure or the assignment of the Agreement in lieu of foreclosure, pursuant to the terms of a deed of trust previously approved by the City, shall not be unreasonably withheld.
13. NON·DISCRIMINATION AND CIVIL RIGHTS COMPLIANCE
13.01 Operator hereby certifies and agrees that it will comply with Title VI of the Civil Rights Act of 1964, Section 504 of the Rehabilitation Act of 1973, the Age Discrimination Act of 1975, Title IX of the Education Amendments of 1972, where applicable, Title 43, part 17 of the Code of Federal Regulations Subparts A and B, and the Americans with Disabilities Act of 1990, to the end that no persons shall, on the grounds of race, creed, color, national origin, political affiliation, marital status, sex, age or disability, be subjected to discrimination under the privileges and use granted by this Agreement or under any project, program or activity supported by this Agreement.
13.02 Operator certifies and agrees that all persons employed thereby, are and shall be treated equally without regard to or because of race, creed, color, national origin, political affiliation, marital status, sex, age or disability and in compliance with all federal and state laws prohibiting discrimination in employment, including but not limited to, the Federal Civil Rights Act of 1964; the Civil Rights Act; the Cartwright Act; and the State Fair Employment Practices Act.
13.03 Operator certifies and agrees that subOperators, bidders and Operators thereof are and shall be selected without regard to or because of race, creed, color, national origin, political affiliation, marital status, sex, age or disability.
13.04 All employment records shall be open for inspection and re- inspection at any reasonable time during the term of this Agreement for the purpose of 18 Attachment 3 - Page 21
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verifying the practice of non-discrimination by Operator in the areas heretofore described.
13.05 If City finds that any of the above provisions have been violated, the same shall constitute a material breach of contract upon which City may determine to cancel, terminate, or suspend this Agreement. While City reserves the right to determine independently that the non-discrimination provisions of this Agreement have been violated, in addition, a determination by the California Fair Employment and Housing Department or the Federal Equal Employment Opportunity Commission that Operator has violated State or Federal non-discrimination laws or regulations shall constitute a finding by City that Operator has violated the non-discrimination provisions of this Agreement.
13.06 The parties agree that in the event Operator violates the non- discrimination provisions contained herein, City shall, at its option, be entitled to a sum of One Thousand Dollars ($1,000.00) pursuant to California Civil Code 1671 as liquidated damages in lieu of canceling, terminating or suspending this Agreement.
Operator further agrees that One Thousand Dollars ($1,000.00) is a reasonable sum under all of the circumstances existing at the time of the execution of this Agreement.
14. EASEMENTS
City reserves the right to establish, grant or utilize easements or right of ways over, under, along and across the premises for utilities and/or public access to the premises provided City shall exercise such rights in a manner as will avoid any substantial interference with the operations to be conducted hereunder. Should the establishment of such easements permanently deprive Operator of the use of a portion 19 Attachment 3 - Page 22
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of the premises, an abatement of payments shall be provided in an amount proportional to the total area of the premises in the before and after conditions.
15. TERMINATION
15.01 This Agreement may be terminated upon the occurrence of anyone or more of the circumstances as described in Events of Default hereinafter, upon ten (10) days prior written notice to the Operator by registered or certified mail of the date set for termination and providing the grounds for the termination and failure of the Operator to cure the default prior to the time set for termination or any extension thereof agreed to by the parties.
15.02 Upon termination City shall have the right to take possession of the premises, including all improvements, equipment, and inventory located thereon, and use it for the purpose of satisfying and/or mitigating all damages arising from a breach of this Agreement.
15.03 Action by City to effectuate a termination and forfeiture of possession shall be without prejudice to the exercise of any other rights provided herein or by law to remedy a breach of this Agreement.
15.04 Operator has the right to terminate this Agreement in the event the City defaults on fuel payments upon ten (10) days prior written notice to the City by registered or certified mail of the date set for termination and failure of the City to cure the default prior to the time set for termination or any extension thereof agreed to by the parties.
16. EVENTS OF DEFAULT
16.01 The abandonment, vacation or discontinuance of the facility operations on the Facility for more than twenty-four (24) consecutive hours. 20 Attachment 3 - Page 23
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16.02 The failure of Operator to punctually payor make the payments required herein when due, where the delinquency continues beyond ten (10) days following written notice for payment thereof.
16.03 The failure of Operator to operate in the manner required by this Agreement, where such failure continues for more than ten (10) days after written notice from the Director or his designee to correct the condition therein specified.
16.04 The failure to maintain the premises and the improvements constructed thereon in the state of repair required hereunder, and in a clean, sanitary, safe and satisfactory condition, where such failure continues for more than ten (10) days after written notice from the Director or his designee for the correction thereof, provided that where fulfillment of such obligation requires activity over a period of time and Operator shall have immediately, following receipt of such notice, commenced to perform whatever may be required to cure the particular default and continues such performance diligently, said time limit may be waived in the manner and to the extent allowed by the Director or his designee.
16.05 The failure of Operator to keep, perform and observe all other promises, covenants, conditions and agreements set forth in this Agreement, where such failure continues for more than thirty (30) days after written notice from the Director or his designee for correction thereof, provided that where fulfillment of such obligation requires activity over a period of time and Operator shall have commenced to perform whatever may be required to cure the particular default within ten (10) days after such notice and continues such performance diligently, said time limit may be waived in the manner and to the extent allowed by the Director or his designee.
16.06 The filing of a voluntary petition in bankruptcy by Operator; the adjudication of Operator as a bankrupt; the appointment of any receiver of Operator's 21 Attachment 3 - Page 24
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assets; the making of a general assignment for the benefit of creditors; a petition or answer seeking an arrangement for the reorganization of Operator under any Federal Reorganization Act, including petitions or answers under Chapters X or XI of the Bankruptcy Act; the occurrence of any act which operates to deprive Operator permanently of the rights, powers and privileges necessary for the proper conduct and operation of the golf course; the levy of any attachment or execution which substantially interferes with Operator's operations under this Agreement and which attachment or execution is not vacated, dismissed, stayed or set aside within a period of sixty (60) days.
16.07 Determination by the Director, the State Fair Employment Commission, or the Federal Equal Employment Opportunity Commission of discrimination having been practiced by Operator in violation of state and/or federal laws thereon.
16.08 Transfer of the majority controlling interest of Operator to persons other than those who are in control at the time of the execution of this Agreement without approval thereof by the Director. The provisions of this section shall not apply to initial public offering of shares in accordance with public listing on a recognized stock exchange.
17. DEFAULT FOR INSOLVENCY
17.01 City, through its Public Works Director or their designee, may immediately terminate this Agreement for default in the event of the occurrence of any of the following:
A. The Director or his designee determines that the Operator is insolvent. Operator shall be deemed to be insolvent if it has ceased to 22 Attachment 3 - Page 25
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pay its debts in the ordinary course of business or cannot pay its debts as they become due, whether it has committed an act of bankruptcy or not, and whether insolvent within the meaning of Federal Bankruptcy Law or not.
B. The appointment of a Receiver or Trustee for Operator.
C. The execution by Operator of an assignment for the benefit of creditors.
17.02 The rights and remedies of City provided in this Section shall not be exclusive and are in addition to any other rights and remedies provided by law or under this Agreement.
17.03 Any discretion vested in the Director or his designee pursuant to the provisions of this Section shall be reasonably exercised.
18. WAIVER
18.01 Any waiver by City of any breach of anyone or more of the covenants, conditions, terms and agreements herein contained shall not be construed to be a waiver of any subsequent or other breach of the same or of any other covenant, condition, term or agreement herein contained, nor shall failure on the part of City to require exact, full and complete compliance with any of the covenants, conditions, terms or agreements herein contained by construed as in any manner changing the terms of this Agreement or stopping City from enforcing the full provisions thereof.
18.02 No delay, failure, or omission of City to re-enter the premises or to exercise any right, power, privilege or option, arising from any default, nor any subsequent acceptance of payments then or thereafter shall impair any such right, 23 Attachment 3 - Page 26
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power, privilege or option, or be construed as a waiver of or acquiescence in such default or as a relinquishment of any right.
18.03 No notice to Operator shall be required to restore or revive "time of the essence" after the waiver by City of any default.
18.04 No option, right, power, remedy or privilege of City shall be construed as being exhausted by the exercise thereof in one or more instances. The rights, powers, options, privileges and remedies given City by this Agreement shall be cumulative.
19. RIGHT OF ENTRY
19.01 Should Operator be deemed deficient, as determined by Director or his designee, in its performance of its obligations required hereunder, City in addition to all other available remedies may, but shall not be so obliged, enter upon the premises and correct Operator's deficiencies using City forces, and equipment and materials on the premises suitable for such purposes, or by employing a separate private Operator.
City costs so incurred, including direct and indirect overhead costs as determined by Director, shall be reimbursed to City by Operator and/or its sureties within thirty (30) days of demand thereof.
19.02 In the event of an abandonment, vacation or discontinuance of operations for a period in excess of twenty-four (24) hours, Operator hereby irrevocably appoints City as an agent for continuing operation of the services granted herein, and in connection therewith authorizes the officers and employees thereof to (1) take possession of the premises, including all improvements, equipment and inventory thereon; and (2) remove any and all persons or property on said premises and place any such property in storage for the account of an at the expense of Operator; and (3) 24 Attachment 3 - Page 27
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sublease or license the premises; and (4) after payment of all expense of such subleasing or licensing apply all payments realized therefrom to the satisfaction and/or mitigation of all damages arising from Operator's breach of this Agreement. Entry by the officers and employees of City upon the premises for the purpose of exercising the authority conferred hereon as agent of Operator shall be without prejudice to the exercise of any other rights provided herein or by law to remedy a breach of this Agreement.
20. SURRENDER
Upon expiration of the term hereof, or cancellation thereof as herein provided, Operator shall peaceably vacate the premises and any and all improvements located thereon and deliver up the same to City in a reasonably good condition, ordinary wear and tear excepted, subject to the right of City to demand removal thereof to the extent that paragraph 1.06 may be applicable thereto.
21. INTERPRETATION
21.01 This Agreement shall be interpreted according to the laws of the State of California.
21.02 The headings herein contained are for convenience and reference only and are not intended to define or limit the scope of any provision thereof.
21.03 The following words as used herein shall be construed to have the following meaning, unless otherwise apparent from the context in which they are used:
"Auditor-Controller": the Auditor-Controller of City or an authorized representative thereof.
"Building Official": the City Director of the Department of Public Works, his authorized representative, or his successor in interest. 25 Attachment 3 - Page 28
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"Capital Improvement":' any construction project that extends the useful life and/or increases the capacity of the Facility. "Director": Public Works Director or an authorized representative thereof.
"State": the State of California.
22. FORCE MAJEUREITIME EXTENSIONS
Except as otherwise specifically provided hereinbefore, and in the event either party hereto shall be delayed or prevented from performance of any act required hereunder by reason of Acts of God, litigation to which Operator is not a plaintiff, or other cause without fault and beyond control of the party obligated (including but not limited to acts of terriorism), performance of such act shall be excused for the period of time of the delay as determined by the Director or his designee. An extension of time for any such cause shall only be for a period of time equivalent to the enforced delay.
Operator's inability to obtain financing shall not be grounds for an extension of time.
Director or his designee shall prepare and execute, and Operator shall execute the appropriate document acknowledging any extension of time granted pursuant to this section.
23. OPERATORS NON-COMPLIANCE AND LIQUIDATED DAMAGES
Upon the Facility failing to meet the fuel-dispensing specifications at any time during the contract period, the Operator will be subject to liquidated damages. These damages will equal $50.00 (fifty dollars and zero cents) per City-owned NGV per day that any such vehicle is not able to be fuel at the site. These damages will be assessed ( by withholding equivalent dollar amounts from payments owed Operator by the City for 26 Attachment 3 - Page 29
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fuel consumed at the Facility, plus additional payments by Operator as may be required to meet the $50-per-City-NGV-per-day damage amount.
24. NOTICES
Any notice required to be given under the terms of this Agreement or any law applicable thereto may be: (1) delivered by personal service; or (2) placed in a sealed envelope, with postage paid, addressed to the person on whom it is to be served, return receipt requested, and deposited in a post office, mailbox, sub-post office, substation or mail chute, or other like facility regularly maintained by the United States Postal Service.
The address to be used for any notice served by mail upon Operator shall be addressed to ENRG, 3030 Old Ranch Parkway, #280, Seal Beach, California 97040 or such other place as may hereafter be designed in writing to the Director or his designee by Operator. Any notice served by mail upon City shall be addressed to the City Clerk of the City of Burbank, 275 East Olive Ave., Burbank, California 91502. A copy of any notice served on the City Clerk shall be provided to the Public Works Director. Service by mail shall be deemed complete upon deposit in the above-mentioned manner.
25. SEVERABILITY
If any provision of this Agreement is determined to be illegal, invalid, or unenforceable by a court of competent jurisdiction, the remaining provisions hereof shall not be affected thereby and shall remain in full force and effect.
26. CONTRACT ENFORCEMENT AND AMENDMENTS TO THIS AGREEMENT
26.01 The Director or his designee shall be responsible for the enforcement of this Agreement on behalf of City and shall be assisted therein by those 27 Attachment 3 - Page 30
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officers and employees of City having duties in connection with the administration (~
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26.02 Any officers and/or authorized employees of City may enter upon the Facility at any and all reasonable times for the purpose of determining whether or not Operator is complying with the terms and conditions hereof, or for any other purpose incidental to the rights of City within the demised premises.
26.03 In the event either party commences legal proceedings for the enforcement of this Agreement, the prevailing party shall be entitled to recover its attorney's fees and costs incurred in the action brought thereon.
26.04 This document may be modified only by further written agreement between the parties. Any such modification shall not be effective unless and until executed by Operator and in the case of the City, unless otherwise specifically authorized hereinbefore, until executed by the City Council. 28 Attachment 3 - Page 31
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27. ENTIRE AGREEMENT
This document, and the exhibits attached hereto, constitutes the entire agreement between the City and Operator for the CNG Fuel Station. All other agreements, promises and representations with respect thereto, other than contained herein, are expressly revoked, as it has been the intention of the parties to provide for a complete integration within the provisions of this document, and the exhibits attached hereto, the terms, conditions, promises and covenants relating to the CNG Fuel Station operation.
IN WITNESS WHEREOF Operator has executed this Agreement, or caused it to be duly executed, and the City of Burbank, by order of its City Council caused this Agreement to be executed the day and year first above written. o
BY ~~-1~ __ ~ ____________ __
ATTEST:
APPROVED AS TO FORM:
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29 Attachment 3 - Page 32