1 ID # 4381 [810 N. Lake Street, Burbank, CA] (rev. 06.25.2021)
SECOND AMENDMENT
TO THE AGREEMENT FOR THE MANAGEMENT AND OPERATION OF THE
COMPRESSED NATURAL GAS FUEL STATION
This Second Amendment (“Second Amendment”) to that certain Agreement for the Management and Operation of the Compressed Natural Gas Fuel Station by and between City of Burbank, a municipal corporation (“City”) and Clean Energy, a California corporation ( “Operator” or “ CE”), dated as of November 5, 2002 (the “Agreement”) is made and executed , by and between City and Operator, to be effective as of the ___ day of _________________ , 202_ (“Second 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 Agreement and/or the First Amendment to the Agreement.
RECITALS
WHEREAS, the Parties entered into the Agreement on November 5, 2002, related to a publicly accessible CNG (compressed natural gas) fueling facility located at 810 N. Lake Street, Burbank, CA (the “Facility”) to, among other things, provide for additional City access to CNG for City vehicles; WHEREAS, the Parties wish to amend the Agreement on the terms and conditions set forth herein; WHEREAS, the Parties entered into a First Amendment on August 5, 2008 (“First Amendment”), which extended the term of the Agreement to September 1, 2022; WHEREAS, the Parties desire to extend the term of the Agreement again by ten years, until September 1, 2032;
WHEREAS, a material inducement for City agreeing to the terms of this Second Amendment is that Operator will pay for and construct certain station upgrades to the Facility at Operator’s expense, up to a maximum total cost of $30,000;
WHEREAS, the terms and conditio ns of the station upgrade to the Facility are set forth in Appendix 1 of this Second Amendment, attached hereto and incorporated herein by reference , and such Appendix 1 is hereby made a part of the Agreement as of the Second 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 2.01 - Term. Section 2.01 of the Agreement (as amended by the First Amendment) is hereby amended by deleting the reference to “September 1, 2022 ” and replacing it with “September 1, 2032”.
2. Amendment to Section 2.02 - Term. Section 2.02 of the Agreement (as amended by the First Amendment) is hereby amended by deleting the reference to “September 1, 2022” and replacing it with “September 1, 2032”.
3. Amendment to Section 4 – Compensation for Operational Services of Operator. Section 4 of the Agreement is hereby deleted and replaced in its entirety with the following:
Attachment 5 – Second Amendment
2 ID # 4381 [810 N. Lake Street, Burbank, CA] (rev. 07.28.2016) “COMPENSATION FOR OPERATIONAL SEVICES OF OPERATOR
4.01 [Removed from the Agreement].
4.02 Except as provided in Section 4.03, fuel prices for the public shall be at the retail rate set by Operator at its sole and absolute discretion.
4.03 City Vehicles will receive CNG at 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] (the “Preferred Rate”).
4.03a City Employees and, at City’s option, Burbank Residents (with a Burbank Water and Power bill and/or vehicle registration as proof of residency) shall apply for an d receive a CE fuel card enabling the holder to purchase CNG at the Preferred rate + credit card fees , as set forth in the following formula: [(Southern California Gas Company G-NGU Uncompressed Tariff + CE’s Margin of $0.632/therm + $0.06097 credit card fees per therm) multiplied by 1.25 (therm/gallon) + applicable taxes and fees]. All Burbank Residents and City Employees must provide CE with a credit card as a form of financial guarantee before receiving a CE fueling card.
This Preferred Rate structure will remain in effect for the life of this Agreement. CE’s Margin price and credit card fees applicable to the Preferred Rate 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.
4.04 Operator 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 Subject to the availability of the alternative fuel credit allowable under the Internal Revenue Code (IRC) Section 6426(d) and 6427 (“AFC”), but only to the extent CE is allowed to claim AFC for fuel dispensed from the Facility and in excess of any commitments made by CE to pay AFC to third parties for fuel dispensed from the Facility under separate contracts entered into by CE, CE shall during the Term hereof, claim AFC related to CNG dispensed from the Facility and within 30 days of receipt of such AFC proceeds, pay City fifty percent (50%) of the credit provided for in IRC Section 6426(d) for each GGE of CNG sold from the Facility to third parties during the Term.
The Parties agree that CE will be considered the Alternative Fueler as defined in Proposed Treasury Regulation Section 48.6426-1 and City shall execute all forms and/or elections which are necessary to carry out the terms of this Section. Notwithstanding the foregoing and for the avoidance of doubt, City understands and acknowledges that the legislation authorizing AFC expire d on December 31, 2021 and that no AFC revenue will be realized under this Agreement after December 31, 2021 without the re-enactment of the legislation. If for any reason the AFC is disallowed, City shall hold CE harmless and repay to CE any AFC that is disallowed that was paid by CE to City.
4.06 If the sum of City’s purchases of CNG from the Facility and the station located at 124 S. Lake Street (“Station”) is less than 20,000 GGEs each month (the “Minimum Commitment”), City will pay CE the difference between the Minimum Commitment and the actual amount of GGEs purchased, multiplied by $0.79. This amount is in addition to City’s payment for the actual amount of GGEs purchased from the Facility and the Station. Notwithstanding the foregoing, in the event that City is required by law to replace its CNG vehicles with other alternative fuel technologies, the Parties shall work together in good faith to (a) reduce the Minimum Commitment on a pro rata basis based on the reduction to City’s CNG vehicle fleet and (b) amend this Agreement accordingly.”
Attachment 5 - Page 2
3 ID # 4381 [810 N. Lake Street, Burbank, CA] (rev. 07.28.2016)
4. Compliance with Applicable Law. Operator 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 Operator to complete the tasks identified in this amendment.
5. Indemnification. Operator acknowledges and agrees that in addition to the provisions in Section 9 (Hold Harmless and Indemnification) of the Agreement, Operator’s duty to indemnify the City, its agents, officers, and employees, include any claims involving prevailing wages associated with the use or improvements to the Facility.
6. Terms and Conditions of the Agreement. Other than as expressly set forth in this Second Amendment, all of the terms and conditions of the Agreement shall remain in full force and effect and shall apply to this Second Amendment; provided that to the extent there is a conflict between the terms of this Second Amendment and the terms of the Agreement, the terms of this Second Amendment shall control to the extent of such conflict.
7. Governing Law. This Second Amendment shall be governed 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 Second 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 Second Amendment transmitted by facsimile, email, portable document format (or .pdf) or by any other electronic means intended to preserve the original graphic and pictorial appearance of this Second 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 Agreement remain in full force and effect, and are ratified and confirmed by the Parties in all respects as of the Second Amendment Effective Date.
IN WITNESS WHEREOF, the Parties have caused this Second Amendment to be signed as of the Second Amendment Effective Date.
CLEAN ENERGY
CITY OF BURBANK
By: By:
Name: Name:
Title: Title:
Attachment 5 - Page 3
4 ID # 4381 [810 N. Lake Street, Burbank, CA] (rev. 06.25.2021)
APPENDIX 1
1. Description of Work and Authorization . Clean Energy, a California corporation (“Operator”), shall perform the following upgrades to a compressed natural gas fueling station on property owned by the City of Burbank, a municipal corporation (“City”), located at 810 N. Lake Street, Burbank, CA (the “Facility”):
• Refurbish Canopy and Dispenser Islands with Steam Cleaning and Paint • Update City of Burbank and Clean Energy Logos
(collectively, the “Facility Upgrades”).
Operator must obtain all necessary licenses, permits and approvals at Operator’s cost , if applicable, before commencement of any work and will ensure against interruptions in the provision of compressed natural gas at this Facility. Full execution of the Second Amendment to which this Appendix 1 is attached shall be deemed notice from City to Operator to commence performance of the Facility Upgrades.
2. Operator’s Costs. Up to a maximum total cost of $30,000, Operator, at its expense, will pay for and construct the Facility Upgrades. If, in the course of performing the Facility Upgrades, Operator reasonably anticipates that the total cost of such upgrades will exceed $ 30,000, Operator shall provide written notice to City, and Operator and City shall work together, in good faith, to determine next steps.
3. Limitation of Liability . Neither party shall have any liability to the other party for special, consequential, or incidental damages in relation to the Facility Upgrades.
Attachment 5 - Page 4