1 ID # 4470 [124 South Lake Street, Burbank, CA] (rev. 06.25.2021)
FIRST AMENDMENT
TO LEASE
This First Amendment (“First Amendment”) to that certain Lease by and between City of Burbank, a municipal corporation (“City”) and Clean Energy, a California corporation ( “Operator” or “Tenant”), dated as of October 27, 2008 (as further amended, modified or supplemented from time to time, the “Lease”) is made and executed, by and between City and Operator, to be effective as of the ___ day of _________________ , 202_ (“First Amendment Effective Date”).
City and Operator are, from time to time, referred to herein collectively as the “Parties”.
Capitalized terms used, but not defined herein, shall have the meaning ascribed to such term in the Lease.
RECITALS
WHEREAS, the Parties entered into the Lease in relation to a CNG station located at 124 South Lake Street, Burbank, CA (the “Station”) for use by the City; WHEREAS, the Parties wish to amend the Lease on the terms and conditions set forth herein; WHEREAS, a material inducement for City agreeing to the terms of this First Amendment is that Operator will pay for and construct certain station upgrades to the Station at Operator’s expense, up to a maximum total cost of $870,000;
WHEREAS, the terms and conditions of the station upgrade to the Station are set forth in Appendix 1 of this First Amendment, attached hereto and incorporated herein by reference , and such Appendix 1 is hereby made a part of the Lease as of the First Amendment Effective Date; and NOW, THEREFORE, in consideration of the mutual covenants and obligations of the Parties herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
AMENDMENT
1. Amendment to Section 2 – Term of Lease. On page 1 of the Lease, Section 2 is hereby amended by deleting the reference to “September 1, 2022” and replacing it with “September 1, 2032”.
2. Amendment to Exhibit B: Section 2.01 - Term. In Exhibit B, page 15 of the Lease, Section
2.01 is hereby amended by deleting the reference to “September 1, 2022” and replacing it with “September 1, 2032”.
3. Amendment to Exhibit B: Section 4 – Discounted Fuel Sales. In Exhibit B, pages 19 to 20 of the Lease, Section 4 (Discounted Fuel Charge) is hereby deleted and replaced in its entirety with the following:
“4A. DISCOUNTED FUEL CHARGE
Operator shall provide natural gas at the “Preferred Rate”, as set forth by the following billing rate structure: [(Southern California Gas Company G -NGU Uncompressed Tariff + CE’s Margin of $0.632/therm) multiplied by 1.25 (therm/gallon) + applicable taxes and fees]. This Preferred Rate structure will remain in effect for the life of the Lease. Operator’s Margin price will be modified on January 1 of each year by the increase in the United States Bureau of Labor Statistics Consumer Price Index All Items, for All Urban Customers, Los Angeles -Long Beach-Anaheim, California (1982-84=100) for the life of the contract and any contract extensions.” Attachment 4 – First Amendment to Lease
2 ID # 4470 [124 South Lake Street, Burbank, CA] (rev. 07.28.2016)
4. Compliance with Applicable Law . Tenant must comply with all federal, state and local laws, statutes, codes, ordinances, regulations and rules in effect during the term of the agreement, and will be responsible for obtaining any licenses, permits, insurance and approvals that are legally required for Tenant to complete the tasks identified in this amendment.
5. Indemnification. Tenant acknowledges and agrees that in addition to the provisions in Section 8(d) of the Lease, Section 9 (Hold Harmless and Indemnification) o f Exhibit B to the Lease, and Article 4 of the attached Appendix, that Tenant will also 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 or in connection with any claims involving prevailing wages associated with the use or improvements to the Station.
6. Terms and Conditions of th e Lease. Other than as expressly set forth in this First Amendment, all of the terms and conditions of the Lease shall remain in full force and effect and shall apply to this First Amendment; provided that to the extent there is a conflict between the terms of this First Amendment and the terms of the Lease, the terms of this First Amendment shall control to the extent of such conflict.
7. Governing Law. This First Amendment shall be g overned by and construed, interpreted and enforced in accordance with the laws of the State of California, not including choice of law rules and principles.
8. Counterparts. This First Amendment may be executed in two or more counterparts, each of which shall constitute an original, but all of which when taken together shall constitute but one and the same agreement. Signatures to this First Amendment transmitted by facsimile, email, portable document format (or .pdf) or by any other electronic means intend ed to preserve the original graphic and pictorial appearance of this First Amendment shall have the same effect as the physical delivery of the paper document bearing original signature.
9. No Other Amendment. Except as expressly amended hereby, the terms and provisions of the Lease remain in full force and effect, and are ratified and confirmed by the Parties in all respects as of the First Amendment Effective Date.
IN WITNESS WHEREOF, the Parties have caused this First Amendment to be signed as of the First Amendment Effective Date.
CLEAN ENERGY
CITY OF BURBANK
By: By:
Name: Name:
Title: Title:
Attachment 4 - Page 2
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ID # 4470 [124 South Lake Street, Burbank, CA] (rev. 07.28.2016)
APPENDIX 1
ARTICLE 1
SCOPE AND DEFINITIONS
1.1 Intent. This Appendix 1 expresses the terms and conditions pursuant to which City authorizes Operator to perform upgrades to a compressed natural gas fueling station on property owned by City located at 124 South Lake Street, Burbank, CA.
1.2 Definitions. As used in this Appendix 1, the following terms and expressions shall have the indicated meanings:
“Appendix 1” means this document and any and all exhibits attached hereto.
“City” means the City of Burbank, a municipal corporation.
“CNG” means pipeline quality natural gas, compressed for vehicle use.
“CNG Vehicle(s)” means motor vehicles powered by internal combustion engines using CNG as a primary fuel.
“Final Completion” means the stage in the progress of Station Upgrade construction where the Station Upgrade equipment has been commissioned, start up testing has been completed, and the Station (including the Station Upgrade) is ready to commence fueling CNG Vehicles.
“Operator” means Clean Energy , a California corporation, acting by and through its employees and officers.
“Premises” means that portion of the real property owned by City and located at 124 South Lake Street, Burbank, CA , upon which the Station Upgrades will be performed as more fully described in Exhibit II.
“Station” means the facility for refueling CNG Vehicles located on the Premises.
“Station Upgrade” means the upgrades to the Station to be performed by Operator as more fully described in Exhibits I and II.
“Substantial Completion” means the stage in the progress of construction of the Station Upgrade where the Station Upgrade is ready for commissioning.
ARTICLE 2
RESPONSIBILITIES OF OPERATOR
2.1 Station Upgrade. Operator shall perform the Station Upgrades on the Premises, and shall be responsible for obtaining all permits and approvals relating to the per formance of the Station Attachment 4 - Page 3
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ID # 4470 [124 South Lake Street, Burbank, CA] (rev. 07.28.2016) Upgrades. Operator agrees to provide City access to plans as needed, and City anticipates seeking review of applicable plans when work is completed at the 30th, 60th, and 90th percentages. To the extent that this Appendix 1 contemplates the construction of a work of improvement or any related activity for which a California contractor’s license is required, all such work may be performed by a contractor holding such license.
2.2 Costs. Up to a maximum total cost of $870,000, Operator, at its expense, will pay for and construct the Station Upgrade. If, in the course of performing the Station Upgrade , Operator reasonably anticipates that the total cost of such upgrades will exceed $ 870,000, Operator shall provide written notice to City, and Operator and City shall work together, in good faith, to determine next steps , provided that Operator will maintain the Station in such a manner that will ensure against interruptions in compressed natural gas for City purposes.
2.3 Compliance with Law . In performing its obligations under this Appendix 1 , Operator shall comply in all material respects with all applicable federal, state, and local laws, regulations, ordinances and rulings, including (but not limited to) those pertaining to he alth, safety, employment, prevailing wages, and environmental matters.
2.4 Operator Supervision and Control. Operator shall supervise, direct, and administer the work performed by it hereunder. Operator shall be responsible for the acts and omissions of all of its employees, agents, and contractors, and for all other persons performing the work under a contract with, or otherwise at the request of, Operator.
2.5 Completion.
2.5.1 Substantial Completion.
(a) When Operator considers the Station Upgrade to be Substantially Complete, Operator shall prepare and submit a written notice to City which indicates that, in Operator’s opinion, the Station Upgrade is Substantially Complete (the “Substantial Completion Notice”) and Operator shall commence the performance of commissioning and start-up of the Station Upgrade. The day Operator transmits the Substantial Completion Notice to City shall be deemed the “Date of Substantial Completion”. Upon City’s receipt of the Substantial Completion Notice, Operator and City shall work together to determine the list of Station Upgrade related items which still need to be completed by Operator prior to Final Completion (the “Punch List Items”) and such Punch List Items shall be memorialized in a writing which is agreed to by City and Operator (email to suffice).
2.5.2 Final Completion.
(a) Upon Operator’s completion of the Punch List Items and when the Station Upgrade is deemed to have reached Final Completion by Operator, Operator shall provide a written notice to City (the “Final Completion Notice”). The day Operator transmits the Final Completion Notice to City shall be deemed the “Date of Final Completion”.
2.6 Premises. Operator shall keep the Premises and surrounding area free from accumulation of waste materials or rubbish caused by its work under this Appendix 1. Prior to the Date of Final Completion, Operator shall remove from and about the Premises its waste materials, rubbish, tools, equipment, machinery, and surplus materials.
Attachment 4 - Page 4
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ID # 4470 [124 South Lake Street, Burbank, CA] (rev. 07.28.2016) ARTICLE 3
NOTICE TO COMMENCE WORK
3.1 Notice to Commence Work. Full execution of the First Amendment to which this Appendix 1 is attached shall be deemed notice from City to Operator to commence performance of the Station Upgrades.
ARTICLE 4
INDEMNIFICATION, LIMITATION OF LIABILITY AND FORCE MAJEURE
4.1 Indemnity by City. Except to the extent that liabilities arise from the negligence or willful misconduct of Operator, or its officers, directors, employees, agents, contractors or subcontractors, City agrees to indemnify, defend, and protect Operator and its officers, directors, employees and agents from and against and hold Operator and its officers, directors, employees and agents harmless and free from any and all liability, loss, cost, expense or obligation, including without limitation reasonable attorneys’ fees, court costs and other expenses, including without limitation, those of appeal, on account of or arising out of, injury to or death of any person or persons or damage to or loss of use of property, from whatever cause, related in any way to: (a) the use of the Station, including without limitation, the Station Upgrades by City or its officers, directors, employees, agents, contractors or subcontractors; (b) negligence or willful misconduct by City or its officers, directors, employees, agents, contractors or subcontractors; or (c) material breach of this Appendix 1 by City.
4.2 Indemnity by Operator. Except to the extent that liabilities arise from the negligence or willful misconduct of City, its officers, directors, employees, agents, contractors, or subcontractors, Operator agrees to indemnify, defend, and protect City and its officers, directors, employees and agents from and against and hold City and its officers, directors, employees and agents harmless and free from any and all liability, loss, cost, expense or obligation, including without limitation reasonable attorneys’ fees, court costs and other expenses, including without limitation, those of appeal, on account of or arising out of, injury to or death of any person or persons or damage to or loss of use of property, from whatever cause, related in any way to (a) the performance of the Sta tion Upgrades by Operator; (b) negligence or willful misconduct by Operator or its officers, directors, employees, agents, contractors or subcontractors; (c) material breach of this Appendix 1 by Operator. Notwithstanding the above, Operator will indemnify, defend, and protect City and its officers, directors, employees and agents from and against and hold City and its officers, directors, employees and agents harmless and free from any claims related to Operator’s failure to pay prevailing wage.
4.3 Indemnification Procedure. In the event any action is commenced or claim is made or threatened against an indemnified party (“ Indemnitee”) to which the other party (“ Indemnitor”) is obligated to indemnify or hold it harmless, Indemnitee shall promptly notify Indemnitor of such event and Indemnitor shall assume the defense of, and may settle, that part of any such claim or action commenced or made against Indemnitee which relates to Indemnitor’s indemnification and Indemnitor may take such other steps as may be nec essary to protect itself. Indemnitor shall not be liable to Indemnitee on account of any settlement of any such claim or litigation affected without Indemnitor’s consent. The right of Indemnitor to assume the defense of any action shall be limited to that part of the action commenced against Indemnitee which relates to Indemnitor’s obligation of indemnification and holding harmless.
4.4 Additional Damages. Neither Party shall have any liability to the other Party for special, consequential, or incidental da mages, except however in connection with a claim made against Attachment 4 - Page 5
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ID # 4470 [124 South Lake Street, Burbank, CA] (rev. 07.28.2016) either Party by a third party, provided that such claim arises out of or results from the negligence or willful misconduct or any other claim within the scope of the indemnity obligations of Operator or City, as applicable, under this Appendix 1.
4.5 Force Majeure. In the event that Operator is prevented from performing its duties and obligations pursuant to this Appendix 1 by circumstances reasonably beyond its control, including, without limitation, fires, floods, pandemics, quarantines, labor disputes, war, acts of terrorism, the interruption of utility services, or Acts of God (hereinafter referred to as “ Force Majeure”), then Operator shall be excused from performance hereunder during the period of such disability (the “ Force Majeure Period”). If Operator claims Force Majeure, Operator shall promptly notify City if 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. Operator will also promptly notify City after the Force Majeure condition has terminated. Operator shall agree to use commercially reasonable efforts to correct whatever events or circumstance cause the Force Majeure event.
ARTICLE 5
MISCELLANEOUS
5.1 Headings. The headings in this Appendix 1 are for convenience and reference only, and shall not affect the interpretation of this Appendix 1.
5.2 No Joint Venture . Operator shall perform its duties herein as an independent contractor. Nothing contained herein shall be considered to create the relationship of employer and employee, partnership, joint venture, or other association between the Parties , except as principal and independent contractor.
5.3 Waiver. No waiver by either Party of any one or more defaults by the other Party in the performance of any provisions of this Appendix 1 shall operate or be construed as a waiver of any other default or d efaults, whether of a like or different character. No waiver or modification of this Appendix 1 shall occur as the result of any course of performance or usage of trade.
5.4 Severability. If any provision of this Appendix 1 or the application thereof to any person or circumstances shall, to any extent, be held in any proceeding to be invalid or unenforceable, the remainder of this Appendix 1 shall be valid and enforceable to the fullest extent permitted by law, but only if, and to the extent, such enforcemen t would not materially and adversely alter the Parties’ essential objectives as expressed herein.
5.5 Attorney’s Fees. If any action at law or equity is commenced concerning this Appendix 1 or to enforce its terms, the prevailing Party in such matter shall b e entitled to the payment of reasonable attorneys’ fees and costs as determined by the Court, in addition to any other relief which may be awarded to that Party.
Attachment 4 - Page 6
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ID # 4470 [124 South Lake Street, Burbank, CA] (rev. 07.28.2016)
EXHIBIT I
STATION UPGRADE
The Station Upgrade shall consist of all engineering and design, permitting services, construction, and commissioning to complete the following:
• Replace (2) 75 HP Greenfield compressors and all motor controls with (2) 100 HP IMW Compressor.
• Install (1) PSB 10-3 manual dryer.
• Install (1) fast fill post mounted on a caisson.
• Repurpose the existing storage bottle assembly.
• Utilize existing 400-amp switchgear.
• Install a temporary mobile 150 HP compressor to fuel fleet during construction phase.
Attachment 4 - Page 7
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ID # 4470 [124 South Lake Street, Burbank, CA] (rev. 07.28.2016)
EXHIBIT II
THE PREMISES AND STATION UPGRADE LOCATION
The conceptual plan depicted and described below is shown for conceptual purposes only in locations which are approximate and may be modified by Operator.
Attachment 4 - Page 8