HomeMy WebLinkAbout2011/07/12 Item 09CITY COUNCIL
AGENDA STATEMENT
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CHULAVISiA
7/12/11, Item
ITEM TITLE: RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA AWARDING A CONTRACT TO CLEAN ENERGY
FOR THE INSTALLATION, OPERATION AND MAINTENANCE
OF A COMPRESSED NATURAL GAS (CNG) FUEL DISPENSER
ACCESSIBLE BY THE GENERAL PUBLIC, IN ACCORDANCE
WITH THE TERMS AND CONDITIONS OF REQUEST FOR
PROPOSAL NUMBER 11-09/10
SUBMITTED BY: DIRECTOR OF PUBLIC WORKS
ADMINISTRATIVE SERVICES GER 1~
REVIEWED BY: CITY MANAGER ~-' S j
ASSISTANT CITY MANAGER ~~
4/STHS VOTE: YES ^ NO
SUMMARY
When the John Lippitt Public Works Center was constructed, a compressed natural gas (CNG)
fuel dispenser was added on-site to sell CNG to the general public as a motor vehicle fuel. The
dispenser is currently not in compliance with state regulations and would be cost prohibitive to
upgrade due to budget constraints. Furthermore, a public CNG dispenser would also impose
undue time demands on staff if operated by the City. As a result, a Request for Proposal (RFP)
was solicited by the Finance Department to obtain a contractor willing to make the capital
investment to upgrade, mazket, operate, and maintain the City's fuel dispenser at no cost to the
City. The RFP was advertised electronically on Planet Bids and six (6) contractors attended the
mandatory pre-bid meeting. Staff recommends that Clean Energy be awarded the contract as the
responsive bidder.
ENVIRONMENTAL REVIEW
The Development Services Director has reviewed the proposed project for compliance with the
California Environmental Quality Act (CEQA) and has determined that the project consisting of
the installation, operation and maintenance of a compressed natural gas (CNG) fuel dispenser
qualifies for a Class 1 categorical exemption pursuant to Section 15301 (Existing Facilities) of
the State CEQA Guidelines because the proposed upgrades will be done to an existing CNG
facility. Thus, no further environmental review is necessary.
RECOMMENDATION
Council adopt the resolution.
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BOARDS/COMMISSION RECOMMENDATION
Not applicable
DISCUSSION
Clean Energy was the only contractor that submitted a proposal in response to the City's RFP.
The terms of their proposal require Clean Energy to provide 100 percent of all capital to install,
certify, operate, and maintain a new state-of--the art CNG fuel dispenser, as well as mazket and
retail CNG at the City's public access station at no cost to the City. The capital investment to
upgrade the public access station is estimated at $95,000.
Clean Energy will reimburse the City for all natural gas dispensed through the dispenser, as well
as all expenses related to compressing the gas. The initial term for this agreement is for 10 yeazs,
which can be extended by mutual consent a maximum of two (2) consecutive five (5) yeaz terms.
Climate Change Policv.
Measure #2 (Clean Vehicle Replacement for City-Contracted Fleets) of the City's Climate
Change Policy directs staff to work with fleets under City authority to influence their expanded
use of altemative fuels and high efficiency/alternative fuel vehicles (AFV) including electric,
biodiesel, hybrid, hydrogen, and compressed natural gas (CNG) based on appropriateness for
vehicle task, fueling infrastructure, petroleum displacement, overall cost, and environmental
benefit.
The sale of CNG to the public from the dispensing station located at the John Lippitt Public
Works Center will help encourage City-contracted fleet operations to adopt the use of CNG since
this type of infrastructure will now be available within Chula Vista.
DECISION MAKER CONFLICT
Staff has reviewed the property holdings of the City Council and has found no property holdings
within 500 feet of the boundaries of the property which is the subject of this action.
CURRENT FISCAL YEAR IMPACT
The awazd of this contract will result in no fiscal impact to the City. Clean Energy will
reimburse the City for all natural gas dispensed as well as all the City's costs for compressing the
natural gas and maintaining the compressor station. As a result, no City funds will be expended
to accomplish this project.
ONGOING FISCAL IMPACT
Clean Energy will reimburse the City for all natural gas dispensed as well as the City's costs
related to compressing the natural gas, so there will be no ongoing fiscal impact on the City.
ATTACIIMENT
Two-party agreement.
Prepared by: Steve Dorsey, Fleet Manager, Public Works
H: IPUBLIC WORKSIAGENDAICAS2011107-I2-111Agenda Statement -Clean EnergyFINAL.doc
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THE ATTACHED AGREEMENT HAS BEEN REVIEWED
AND APPROVED AS TO FORM BY THE CITY
ATTORNEY'S OFFICE AND WILL BE
FORMALLY SIGNED UPON APPROVAL BY
Dated:
AGREEMENT BETWEEN
THE CITY OF CHULA VISTA AND
CLEAN ENERGY
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Agreement between
City of Chula Vista
and
Clean Energy, a California corporation
To upgrade, certify and market/advertise the sale of Compressed Natural Gas (CNG) to the
public from the Dispensing Station at the John Lippitt Public Works Center.
This agreement (Agreement), dated July 12, 2011 for the purposes of reference only, and
effective as of the date last executed unless another date is otherwise specified in Exhibit A to
this Agreement (Exhibit A), Pazagraph 1, is between the City-related entity whose name and
business form is indicated on Exhibit A, Pazagraph 2, (City), and the entity whose name,
business form, place of business and telephone numbers aze indicated on Exhibit A, Paragraphs 4
through 6, (Contractor), and is made with reference to the following facts:
RECITALS
WHEREAS, City desires maintenance, service and operation of its dispensing station for
the sale of CNG to the public; and
WHEREAS, Contractor desires to maintain, service and operate for the City a dispensing
station for the sale of CNG to the public; and
WHEREAS, Contractor will purchase all required equipment, fund, furnish, supply and
install said equipment, including any necessazy site modifications required to upgrade, certify,
and mazket/advertise the sale of CNG to the public; and
WHEREAS, Contractor warrants and represents that it is experienced and staffed in a
manner such that it can deliver the services required of Contractor to City in accordance with the
time frames and the terms and conditions of this Agreement.
[End of Recitals. Next Page Starts Obligatory Provisions.]
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OBLIGATORY PROVISIONS PAGES
NOW, THEREFORE, for valuable consideration the City and Contractor do hereby mutually
agree as follows:
All of the Recitals above are incorporated into this Agreement by this reference.
ARTICLE L CONTRACTOR'S OBLIGATIONS
A. General
1. General Duties. Contractor shall perform all of the services described on Exhibit A,
Pazagraph 7 (General Duties).
2. Scope of Work and Schedule. In performing and delivering the General Duties,
Contractor shall- also perform the services, and deliver to City the "Deliverables"
described in Exhibit A, Paragraph 8, entitled "Scope of Work and Schedule," according
to, and within the time frames set forth in Exhibit A, Pazagraph 8, time being of the
essence of this agreement. The General Duties and the work and Deliverables required in
the Scope of Work and Schedule shall be refereed to as the "Defined Services." Failure to
complete the Defined Services by the times indicated does not, except at the option of the
City, terminate this Agreement.
a. Reductions in Scope of Work. City may independently, or upon request from
Contractor, from time to time, reduce the Defined Services to be performed by the
Contractor under this Agreement. Upon doing so, City and Contractor agree to meet
in good faith and confer for the purpose of negotiating a corresponding reduction in
the compensation associated with the reduction.
b. Additional Services. In addition to perfomung the Defined Services, City may
require Contractor to perform additional consulting services related to the Defined
Services (Additional Services), and upon doing so in writing, if they are within the
scope of services offered by Contractor, Contractor shall perform same on a time and
materials basis at the rates set forth in the "Rate Schedule" in Exhibit A,
Pazagraph 10(C), unless a separate fixed fee is otherwise agreed upon. All
compensation for Additional Services shall be paid monthly as billed.
3. Standard of Care. The Contractor expressly warrants that the work to be performed
pursuant to this Agreement, whether Defined Services or Additional Services, shall be
performed in accordance with the standazd of caze ordinarily exercised by members of
the profession currently practicing under similar conditions and in similaz locations.
a. No Waiver of Standard of Care. Where approval by City is required, it is
understood to be conceptual approval only and does not relieve the
Contractor of responsibility for complying with all laws, codes, industry
standards, and liability for damages caused by negligent acts, errors,
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omissions, noncompliance with industry standards, or the willful
misconduct of the Contractor or its subcontractors.
B. Application of Laws. Should a federal or state law pre-empt a local law, or regulation, the
Contractor must comply with the federal or state law and implementing regulations. No
provision of this Agreement requires the Contractor to observe or enforce compliance with
any provision, perform any other act, or do any other thing in contravention of federal, state,
territorial, or local law, regulation, or ordinance. If compliance with any provision of this
Agreement violates or would require the Contractor to violate any law, the Contractor agrees
to notify City immediately in writing. Should this occur, the City and the Contractor agree
that they will make appropriate arrangements to proceed with or, if necessary, amend or
terminate this Agreement, or portions of it, expeditiously.
1. Subcontractors. Contractor agrees to take appropriate measures necessary to ensure that
all participants utilized by the Contractor to complete its obligations under this
Agreement, such as subcontractors, comply with all applicable laws, regulations,
ordinances, and policies, whether federal, state, or local, affecting Project
implementation. In addition, if a subcontractor is expected to fulfill any responsibilities of
the Contractor under this Agreement, the Contractor shall ensure that the subcontractor
carries out the Contractor's responsibilities as set forth in this Agreement.
C. Insurance
1. General. Contractor must procure and maintain, during the period of performance of this
Agreement, and for twelve months after completion, policies of insurance from insurance
companies to protect against claims for injuries to persons or damages to property that
may arise from or in connection with the performance of the work under this Agreement
and the results of that work by the Contractor, his agents, representatives, employees or
subcontractors, and provide documentation of same prior to commencement of work.
2. Minimum Scope of Insurance. Coverage must be at least as broad as:
a. CGL. Insurance Services Office Commercial General Liability coverage (occurrence
Form CG0001).
b. Auto. Insurance Services Office Form Number CA 0001 covering Automobile
Liability, Code 1 (any auto).
c. WC. Workers' Compensation insurance as required by the State of California and
Employer's Liability Insurance.
d. E&O. Professional Liability or Errors & Omissions Liability insurance appropriate to
the Contractor's profession.
3. Minimum Limits of Insurance. Contractor must maintain limits no less than those
included in the table below:
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i. General Liability: $1,000,000 per occurrence for bodily injury, personal injury,
(Including (including death), and property damage. If Commercial General
operations, Liability insurance with a general aggregate limit is used, either
products and the general aggregate limit must apply sepazately to this
completed Project/location or the general aggregate limit must be twice the
operations, as required occurrence limit.
a licable)
ii. Automobile $1,000,000 per accident for bodily injury, including death, and
Liability: property damage.
iii. Workers' Statutory
Compensation $1,000,000 each accident
Employer's $1,000,000 disease-policy limit
Liability: $1,000,000 disease-each em loyee
iv. Professional $1,000,000 each occurrence
Liability or Errors
& Omissions
Liability:
4. Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must
be declared to and approved by the City. At the option of the City, either the insurer will
reduce or eliminate such deductibles or self-insured retentions as they pertain to the City,
its officers, officials, employees and volunteers; or the Contractor will provide a financial
guazantee satisfactory to the City guaranteeing payment of losses and related
investigations, claim administration, and defense expenses.
5. Other Insurance Provisions. The general liability, automobile liability, and where
appropriate, the worker's compensation policies are to contain, or be endorsed to contain,
the following provisions:
a. Additional Insureds. City of Chula Vista, its officers, officials, employees, agents,
and volunteers aze to be named as additional insureds with respect to the General
Liability and the Automobile Liability policies of insurance, including those with
respect to liability arising out of automobiles owned, leased, hired or borrowed by or
on behalf of the Contractor, where applicable, and, with respect to liability arising out
of work or operations performed by or on behalf of the Contractor, including
providing materials, parts or equipment famished in connection with such work or
operations, but specifically excluding adding additional insureds to Contractor's
Workers Compensation Employer's Liability and Professional Liability or Errors &
Omissions Liability polices. The general liability additional insured coverage must be
provided in the form of an endorsement to the Contractor's insurance using ISO CG
2010 (11/85) or its equivalent. Specifically, the endorsement must not exclude
Products/Completed Operations coverage.
b. Primary Insurance. The Contractor's General Liability insurance coverage must be
primary insurance as it pertains to the City, its officers, officials, employees, agents,
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and volunteers. Any insurance or self-insurance maintained by the City, its officers,
officials, employees, or volunteers is wholly sepazate from the insurance of the
Contractor and in no way relieves the Contractor from its responsibility to provide
insurance.
c. Cancellation. The insurance policies required by this Agreement shall not be canceled
by either party, except after thirty days' prior written notice to the City by certified
mail, return receipt requested. The words "will endeavor" and "but failure to mail
such notice shall impose no obligation or liability of any kind upon the company, its
agents, or representatives" shall be deleted from all certificates.
d. Active Negligence. Coverage shall not extend to any indemnity coverage for the
active negligence of the additional insureds in any case where an agreement to
indemnify the additional insured would be invalid under Subdivision (b) of Section
2782 of the Civil Code.
e. Waiver of Subrogation. Contractor's insurer will provide a Waiver of Subrogation in
favor of the City for each required policy providing coverage for the term required by
this Agreement.
6. Claims Forms. If General Liability, Pollution and/or Asbestos Pollution Liability and/or
Errors & Omissions coverage are written on a claims-made form:
a. Retro Date. The "Retro Date" must be shown, and must be before the date of the
Agreement or the beginning of the work required by the Agreement.
b. Maintenance and Evidence. Insurance must be maintained and evidence of insurance
must be provided for at least five yeazs after completion of the work required by the
Agreement.
c. Cancellation. If coverage is canceled or non-renewed, and not replaced with another
claims-made- policy form with a "Retro Date" prior to the effective date of the
Agreement, the Contractor must purchase. "extended reporting" coverage for a
minimum of five yeazs after completion of the work required by the Agreement.
d. Copies. A copy of the claims reporting requirements must be submitted to the City
for review.
7. Acceptability of Insurers. Insurance is to be placed with licensed insurers admitted to
transact business in the State of California with a current A.M. Best's rating of no less
than A V. If insurance is placed with a surplus lines insurer, insurer must be listed on the
State of California List of Eligible Surplus Lines Insurers (LESLI) with a current A.M.
Best's rating of no less than A X. Exception may be made for the State Compensation
Fund when not specifically rated.
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8. Verification of Coverage. Contractor shall furnish the City with original certificates and
amendatory endorsements effecting coverage required by Section LC. of this Agreement.
The endorsements should be on insurance industry forms, provided those endorsements
or policies conform to the requirements of this Agreement. All certificates and
endorsements are to be received and approved by the City before work commences. The
City reserves the right to require, at any time, complete, certified copies of all required
insurance policies, including endorsements evidencing the coverage required by these
specifications.
9. Subcontractors. Contractor must include all subcontractors as insureds under its policies
or furnish separate certificates and endorsements for each subcontractor. All coverage for
subcontractors is subject to all of the requirements included in these specifications.
10. Not a Limitation of Other Oblieations. Insurance provisions under this Article shall not
be construed to limit the Contractor's obligations under this Agreement, including
Indemnity.
D. Security for Performance
Performance Bond. In the event that Exhibit A, at Pazagraph 18, indicates the need for
Contractor to provide a Performance Bond (indicated by a check mark in the
parenthetical space immediately preceding the subpazagraph entitled "Performance
Bond"), then Contractor shall provide to the City a performance bond, in the amount
indicated at Exhibit A; Pazagraph 18, in the form prescribed by the City and by such
sureties which are authorized to transact such business in the State of California, listed as
approved by the United States Department of Treasury Circular 570,
http://www.fms.treas.~ov/c570, and whose underwriting limitation is sufficient to issue
bonds in the amount required by the Agreement, and which also satisfy the requirements
stated in Section 995.660 of the Code of Civil Procedure, except as provided otherwise
by laws or regulations. All bonds signed by an agent must be accompanied by a certified
copy of such agent's authority to act. Surety companies must be duly licensed or
authorized in the jurisdiction in which the Project is located to issue bonds for the limits
so required. Form must be satisfactory to the Risk Manager or City.
2. Letter of Credit. In the event that Exhibit A, at Pazagraph 18, indicates the need for
Contractor to provide a Letter of Credit (indicated by a check mark in the parenthetical
space immediately preceding the subpazagraph entitled "Letter of Credit"), then
Contractor shall provide to the City an irrevocable letter of credit callable by the City at
its unfettered discretion by submitting to the bank a letter, signed by the City Manager,
stating that the Contractor is in breach of the terms of this Agreement. The letter of credit
shall be issued by a bank, and be in a form and amount satisfactory to the Risk Manager
or City Attorney which amount is indicated in the space adjacent to the term, "Letter of
Credit," in Exhibit A, Paragraph 18.
3. Other Security. In the event that Exhibit A, at Pazagraph 18, indicates the need for
Contractor to provide security other than a Perforrnance Bond or a Letter of Credit
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(indicated by a check mark in the parenthetical space immediately preceding the
subparagraph entitled "Other Security"), then Contractor shall provide to the City such
other security therein listed in a form and amount satisfactory to the Risk Manager or
City Attorney.
E. Business License. Contractor agrees to obtain a business license from the City and to
otherwise comply with Title 5 of the Chula Vista Municipal Code.
ARTICLE II. CITY OBLIGATIONS
A. Consultation and Cooperation. City shall regularly consult the Contractor for the purpose
of reviewing the progress of the Defined Services and Schedule, and to provide direction and
guidance to achieve the objectives of this Agreement. The City shall allow Contractor access
to its office facilities, files and records, as deemed necessary and appropriate by the City,
throughout the term of this Agreemenrt. In addition, City agrees to provide the materials
identified at Exhibit A, Paragraph 9, with the understanding that delay in the provision of
those materials beyond thirty days after authorization to proceed, shall constitute a basis for
the justifiable delay in the Contractor's performance.
B. Compensation.
1. Following Receipt of Billin¢. Upon receipt of a properly prepazed bill from Contractor,
submitted to the City as indicated in Exhibit A, Pazagraph 17, but in no event more
frequently than monthly, on the day of the period indicated in Exhibit A, Paragraph 17,
City shall compensate Contractor for all services rendered by Contractor according to the
terms and conditions set forth in Exhibit A, Paragraph 10, adjacent to the governing
compensation relationship indicated by a "checkmazk" next to the appropriate
arrangement, subject to the requirements for retention set forth in Paragraph 18 of
Exhibit A, and shall compensate Contractor for out of pocket expenses as provided in
Exhibit A, Pazagraph 11.
2. Sunnorting Information. Any billing submitted by Contractor shall contain sufficient
information as to the propriety of the billing, including properly executed payrolls, time
records, invoices, contracts, or vouchers describing in detail the nature of the charges to
the Project in order to permit the City to evaluate that the amount due and payable is
proper, and such billing shall specifically contain the City's account number indicated on
Exhibit A, Paragraph 17(C) to be chazged upon making such payment.
3. Exclusions. In determining the amount of the compensation City will exclude any cost:
1) incurred prior to the effective date of this Agreement; or 2) arising out of or related to
the errors, omissions, negligence or acts of willful misconduct of the Contractor, its
agents, employees, or subcontractors.
a. Errors and Omissions. In the event that the City Administrator determines that
the Contractor's negligence, errors, or omissions in the performance of work
under this Agreement has resulted in expense to City greater than would have
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resulted if there were no such negligence, errors, omissions, Contractor shall
reimburse City for any additional expenses incurred by the City. Nothing in this
pazagraph is intended to limit City's rights under other provisions of this
Agreement.
4. Payment Not Final Approval. The Contractor understands and agrees that payment to the
Contractor for any Project cost does not constitute a City final decision about whether
that cost is allowable and eligible for payment under the Project and does not constitute a
waiver of any violation of Contractor of the terms of the Agreement. The Contractor
acknowledges that City will not make a final determination about the eligibility of any
cost until the final payment has been made on the Project or the results of an audit of the
Project requested by the City has been completed, whichever occurs latest. If City
determines that the Contractor is not entitled to receive any portion of the compensation
due or paid, City will notify the Contractor in writing, stating its reasons. The Contractor
agrees that Project closeout will not alter the Contractor's responsibility to return any
funds due City as a result of later refunds, corrections, or other similaz transactions; nor
will Project closeout alter the right of City to disallow costs and recover funds provided
for the Project on the basis of a later audit or other review.
a. Contractor's Obligation to Pay. Upon notification to the Contractor that
specific amounts are owed to City, whether for excess payments or
disallowed costs, the Contractor agrees to remit to City promptly the
amounts owed, including applicable interest.
ARTICLE III. ETHICS
A. Financial Interests of Contractor
1. Contractor is Desienated as an FPPC Filer. If Contractor is designated on Exhibit A,
Paragraph 14, as an "FPPC filer," Contractor is deemed to be a "Contractor" for the
purposes of the Political Reform Act conflict of interest and disclosure provisions, and
shall report economic interests to the City Clerk on the required Statement of Economic
Interests in such reporting categories as are specified in Paragraph 14 of Exhibit A, or if
none are specified, then as determined by the City Attorney.
2. No Participation in Decision. Regardless of whether Contractor is designated as an FPPC
Filer, Contractor shall not make, or participate in making or in any way attempt to use
Contractor's position to influence a governmental decision in which Contractor knows or
has reason to know Contractor has a financial interest other than the compensation
promised by this Agreement.
3. Search to Determine Economic Interests. Regazdless of whether Contractor.is designated
as an FPPC Filer, Contractor warrants and represents that Contractor has diligently
conducted a seazch and inventory of Contractor's economic interests, as the term is used
in the regulations promulgated by the Fair Political Practices Commission, and has
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determined that Contractor does not, to the best of Contractor's knowledge, have an
economic interest which would conflict with Contractor's duties under this Agreement.
Promise Not to Acquire Conflicting Interests. Regardless of whether Contractor is
designated as an FPPC Filer, Contractor further warrants and represents that Contractor
will not acquire, obtain, or assume an economic interest during the term of this
Agreement which would constitute a conflict of interest as prohibited by the Fair Political
Practices Act.
Duty to Advise of Conflicting Interests. Regardless of whether Contractor is designated
as an FPPC Filer, Contractor further warrants and represents that Contractor will
immediately advise the City Attorney if Contractor learns of an economic interest of
Contractor's that may result in a conflict of interest for the purpose of the Fair Political
Practices Act, and regulations promulgated thereunder.
6. Specific Warranties A¢ainst Economic Interests.. Contractor warrants, represents and
agrees that:
a. Neither Contractor, nor Contractor's immediate family members, nor Contractor's
employees or agents (Contractor Associates) presently have any interest, directly or
indirectly, whatsoever in any property which may be the subject matter of the Defined
Services, or in any property within 2 radial miles from the exterior boundaries of any
property which may be the subject matter of the Defined Services, (Prohibited
Interest), other than as listed in Exhibit A, Pazagraph 14.
b. No promise of future employment, remuneration, consideration, gratuity or other
rewazd or gain has been made to Contractor or Contractor Associates in connection
with Contractor's performance of this Agreement. Contractor promises to advise City
of any such promise that may be made during the Term of this Agreement, or for
twelve months thereafter.
Contractor Associates shall not acquire any such Prohibited Interest within the Term
of this Agreement, or for twelve months after the expiration of this Agreement,
except with the written permission of City.
d. Contractor may not conduct or solicit any business for any parry to this Agreement, or
for any third party that may be in conflict with Contractor's responsibilities under this
Agreement, except with the written permission of City.
IV. LIQUIDATED DAMAGES
A. Applicafion of Section. The provisions of this section apply if a Liquidated Damages Rate
is provided in Exhibit A, Pazagraph 13.
1. Estimating Damages. It is acknowledged by both parties that time is of the essence in the
completion of this Agreement. It is difficult to estimate the amount of damages resulting
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from delay in performance. The parties have used their judgment to amve at a reasonable
amount to compensate for delay.
2. Amount of Penalty. Failure to complete the Defined Services within the allotted time
period specified in this Agreement shall result in the following penalty: For each
consecutive calendaz day in excess of the time specified for the completion of the
respective work assignment or Deliverable, the Contractor shall pay to the City, or have
withheld from monies due, the sum of Liquidated Damages Rate provided in Exhibit A,
Pazagraph 13 (Liquidated Damages Rate).
3. Request for Extension of Time. If the performance of any act required of Contractor is
directly prevented or delayed by reason of strikes, lockouts, labor disputes, unusual
governmental delays, acts of God, fire, floods, epidemics, freight embargoes, or other
causes beyond the reasonable control of the Contractor, as determined by the City,
Contractor shall be excused from performing that act for the period of time equal to the
period of time of the prevention or delay. In the event Contractor claims the existence of
such a delay, the Contractor shall notify the City's Contract Administrator, or designee, in
writing of that fact within ten calendaz days after the beginning of any such claimed
delay. Extensions of time will not be granted for delays to minor portions of work unless
it can be shown that such delays did or will delay the progress of the work.
ARTICLE V. INDEMNIFICATION
A. Defense, Indemnity, and Hold Harmless.
1. General Requirement. Except for liability for Design Professional Services covered
under Article V., Section A.2., Contractor shall defend, indemnify, protect and hold
harmless the City, its elected and appointed officers, agents and employees, from and
against any and all claims, demands, causes of action, costs, expenses, liability, loss,
damage or injury, in law or equity, to property or persons, including wrongful death, in
any manner arising out of or incident to any alleged acts, omissions, negligence, or
willful misconduct of Contractor, its officials, offcers, employees, agents, and
contractors, arising out of or in connection with the performance of the Defined Services
or this Agreement. This indemnity provision does not include any claims, damages,
liability, costs and expenses (including without limitations, attorneys fees) arising from
the sole negligence, active negligence or willful misconduct of the City, its officers,
employees.
2. Design Professional Services. If Contractor provides design professional services, as
defined by California Civil Code section 2782.5, as may be amended from time to time,
Contractor shall defend, indemnify and hold the City, its officials, officers, employees,
volunteers, and agents free and harmless from any and all claims, demands, causes of
action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or
persons, including wrongful death, in any manner arising out of, pertaining to, or relating
to the negligence, recklessness, or willful misconduct of Contractor, its officials, officers,
employees, agents, Contractors, and contractors arising out of or in connection with the
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performance of Contractor's services. Contractor's duty to defend, indemnify, and hold
harmless shall not include any claims or liabilities arising from the sole negligence, active
negligence or willful misconduct of the City, its agents, officers or employees. This
section in no way alters, affects or modifies the Contractor's obligations and duties under
this Agreement.
3. Costs of Defense and Awazd. Included in the obligations in Sections A.1 and A.2, above,
is the Contractor's obligation to defend, at Contractor's own cost, expense and risk, any
and all suits, actions or other legal proceedings, that may be brought or instituted against
the City, its directors, officials, officers, employees, agents and/or volunteers, subject to
the limitations in Sections A.1. and A.2. Contractor shall pay and satisfy any judgment,
awazd or decree that may be rendered against City or its directors, officials, officers,
employees, agents and/or volunteers, for any and all related legal expenses and costs
incurred by each of them, subject to the lunitations in Sections A.1. and A.2.
4. Insurance Proceeds. Contractor's obligation to indemnify shall not be restricted to
insurance proceeds, if any, received by the City, its directors, officials, officers,
employees, agents, and/or volunteers.
5. Declarations. Contractor's obligations under Article V shall not be limited by any prior
or subsequent declaration by the Contractor.
6. Enforcement Costs. Contractor agrees to pay any and all costs City incurs enforcing the
indemnity and defense provisions set forth in Article V.
7. Survival. Contractor's obligations under Article V shall survive the termination of this
Agreement.
ARTICLE VI. TERMINATION OF AGREEMENT
A. Termination for Cause. If, through any cause, Contractor shall fail to fulfill in a timely and
proper manner Contractor`s obligations under this Agreement, or if Contractor shall violate
any of the covenants, agreements or stipulations of this Agreement, City shall have the right
to terminate this Agreement by giving written notice to Contractor of such termination and
specifying the effective date thereof at least five (5) days before the effective date of such
termination. hl that event, all finished or unfmished documents, data, studies, surveys,
drawings, maps, reports and other materials prepared by Contractor shall, at the option of the
City, become the property of the City, and Contractor shall be entitled to receive just and
equitable compensation, in an amount not to exceed that payable under this Agreement and
less any damages caused City by Contractor's breach, for any work satisfactorily completed
on such documents and other materials up to the effective date of Notice of Termination,.
B. Termination of Agreement for Convenience of City. City may terminate this Agreement
at any time and for any reason, by giving specific written notice to Contractor of such
termination and specifying the effective date thereof, at least thirty (30) days before the
effective date of such termination. In that event, all finished and unfinished documents and
Page 11
Two Parry Agreement Be[ween City of Chula Pcsta and
to Conduct the "
other materials described hereinabove shall, at the option of the City, become City's sole and
exclusive property. If the Agreement is terminated by City as provided in this paragraph,
Contractor shall be entitled to receive just and equitable compensation, in an amount not to
exceed that payable under this Agreement, for any satisfactory work completed on such
documents and other materials to the effective date of such termination. In the event of such
termination, City shall also compensate Contractor for costs paid by Contractor to construct
the station, and any associated improvements, not exceeding $95,000 (ninety-five thousand
dollars) based upon aten-year straight line depreciation. Contractor hereby expressly waives
any and all claims for damages or compensation azising under this Agreement for termination
of this Agreement for convenience of City except as set forth in this section.
ARTICLE VII. RECORD RETENTION AND ACCESS
A. Record Retention. During the course of the Project and for three (3) yeazs following
completion, the Contractor agrees and to maintain, intact and readily accessible, all data,
documents, reports, records, contracts, and supporting materials relating to the Project as City
may require.
B. Access to Records of Contractor and Subcontractors. The Contractor agrees to permit,
and require its subcontractors to permit City or its authorized representatives, upon request,
to inspect all Project work, materials, payrolls, and other data, and to audit the books,
records, and accounts of the Contractor and its subcontractors pertaining to the Project.
C. Project Closeout. The Contractor agrees that Project closeout does not alter the reporting
and record retention requirements of this Agreement.
ARTICLE VIII. PROJECT COMPLETION, AUDIT, AND CLOSEOUT
A. Project Completion. Within ninety (90) calendaz days following Project completion or
termination by City, Contractor agrees to submit a final certification of Project expenses and
audit reports, as applicable.
B. Audit of Contractors. Contractor agrees to perform financial and compliance audits the
City may require. The Contractor also agrees to obtain any othei audits required by City.
Contractor agrees that Project closeout will not alter Contractor's audit responsibilities. Audit
costs are allowable Project costs.
C. Project Closeout. Project closeout occurs when City notifies the Contractor that City has
closed the Project, and either forwards the final payment or acknowledges that the Contractor
has remitted the proper refund. The Contractor agrees that Project closeout by City does not
invalidate any continuing requirements imposed by the Agreement or any unmet
requirements set forth in a written notification from City
ARTICLE IX. MISCELLANEOUS PROVISIONS
Page 12
Two PmTy Aa Bement Between City of Chula Pcsta and
to Conduct the "
A. Assignability. The services of Contractor are personal to the City, and Contractor shall not
assign any interest in this Agreement, and shall not transfer any interest in the same (whether
by assignment or notation), without prior written consent of City.
1. Limited Consent. City hereby consents to the assignment of the portions of the Defined
Services identified in Exhibit A, Pazagraph 16 to the subcontractors identified as
"Permitted Subcontractors."
B. Ownership, Publication, Reproduction and Use of Material. All reports, studies,
information, data, statistics, forms, designs, plans, procedures, systems and any other
materials or properties produced under this Agreement shall be the sole and exclusive
property of City. No such materials or properties produced in whole or in part under this
Agreement shall be subject to private use, copyrights or patent rights by Contractor in the
United States or in any other country without the express written consent of City. City shall
have unrestricted authority to publish, disclose (except as may be limited by the provisions of
the Public Records Act), distribute, and otherwise use, copyright or patent, in whole or in
part, any such reports, studies, data, statistics, forms or other materials or properties produced
under this Agreement.
C. Independent Contractor. City is interested only in the results obtained and Contractor shall
perform as an independent contractor with sole control of the manner and means of
performing the services required under this Agreement. City maintains the right only to
reject or accept Contractor's work products. Contractor and any of the Contractor's agents,
employees or representatives are, for all purposes under this Agreement, independent
contractors and shall not be deemed to be employees of City, and none of them shall be
entitled to any benefits to which City employees aze entitled including but not limited to,
overtime, retirement benefits, worker's compensation benefits, injury leave or other leave
benefits. Therefore, City will not withhold state or federal income tax, social security tax or
any other payroll tax, and Contractor shall be solely responsible for the payment of same and
shall hold the City harmless with regazd to them.
Actions on Behalf of City. Except as City may specify in writing, Contractor shall have
no authority, express or implied, to act on behalf of City in any capacity whatsoever, as
an agent or otherwise. Contractor shall have no authority, express or implied, to bind
City or its members, agents, or employees, to any obligation whatsoever, unless expressly
provided in this Agreement.
2. No Obligations to Third Parties. In connection with the Project, Contractor agrees and
shall require that its agents, employees, subcontractors agree that City shall not be
responsible for any obligations or liabilities to any third party, including its agents,
employees, subcontractors, or other person or entity that is not a party to this Agreement.
Notwithstanding that City may have concurred in or approved any solicitation,
subagreement, or third parry contract at any tier, City shall have no obligation or liability
to any person or entity not a party to this Agreement.
Page 13
Two Party Agreement Be(ween City ojChula Prsta and
to Conduct the " O. ~ 6
D. Administrative Claims Requirements and Procedures. No suit or arbitration shall be
brought azising out of this Agreement, against City unless a claim has first been presented in
writing and filed with City and acted upon by City in accordance with the procedures set
forth in Chapter 1.34 of the Chula Vista Municipal Code, as same may from time to time be
amended, the provisions of which are incorporated by this reference as if fully set forth
herein, and such policies and procedures used by City in the implementation of same. Upon
request by City, Contractor shall meet and confer in good faith with City for the purpose of
resolving any dispute over the terms of this Agreement.
E. Administratio^ of Contract. Each party designates the individuals (Contract
Administrators) indicated on Exhibit A, Paragraph 12, as that party's contract administrator
who is authorized by the party to represent it in the routine administration of this Agreement.
F. Term. The Term is set forth in Exhibit A. This Agreement shall terminate when the parties
have complied with all executory provisions hereof.
G. Attorney's Fees. Should a dispute arising out of this Agreement result in litigation, it is
agreed that the prevailing party shall be entitled to a judgment against the other for an
amount equal to reasonable attorneys' fees and court costs incurred. The "prevailing party"
shall be deemed to be the party who is awarded substantially the relief sought.
H. Statement of Costs. In the event that Contractor prepazes a report or document, or
participates in the prepazation of a report or document in performing the Defined Services,
Contractor shall include, or cause the inclusion of, in the report or document, a statement of
the numbers and cost in dollaz amounts of all contracts and subcontracts relating to the
prepazation of the report or document.
I. Contractor is Real Estate Broker and/or Salesman. If the box on Exhibit A, Paragraph 15
is marked, the Contractor and/or is principals is/are licensed with the State of California or
some other state as a real estate broker or salesperson. Otherwise, Contractor represents that
neither Contractor, nor its principals are licensed real estate brokers or salespersons.
J. Notices. All notices, demands or requests provided for or permitted to be given pursuant to
this Agreement must be in writing. All notices, demands and requests to be sent to any party
shall be deemed to have been properly given or served if personally served or deposited in
the United States mail, addressed to such party, postage prepaid, registered or certified, with
return receipt requested, at the addresses identified in this Agreement as the places of
business for each of the designated parties.
K. Integration. This Agreement, together with any other written document referred to or
contemplated in it, embody the entire Agreement and understanding between the parties
relating to the subject matter hereof. Neither this Agreement nor any provision of it may be
amended, modified, waived or dischazged except by an instrument in writing executed by the
party against which enforcement of such amendment, waiver or dischazge is sought.
Page 14
Twa Party Agreement Between City ojChu[a l2sta arsd
to Conduct the "
L. Capacity of Parties. Each signatory and party to this Agreement warrants and represents to
the other party that it has legal authority and capacity and direction from its principal to enter
into this Agreement, and that all necessary resolutions or other actions have been taken so as
to enable it to enter into this Agreement.
M. Governing Law/Venue. This Agreement shall be governed by and construed in accordance
with the laws of the State of California. Any action azising under or relating to this
Agreement shall be brought only in the federal or state courts located in San Diego County,
State of Califomia, and if applicable, the City of Chula Vista, or as close thereto as possible.
Venue for this Agreement, and performance under it, shall be the City of Chula Vista.
N. Pre-existing Conditions. The premises shall be cleaz ofpre-existing underground hazards
or soil contaminants that would impact the construction of the station. If it is determined that
underground hazazds, soil contaminants or soil conditions exist that either (a) require
removal, replacement, and. disposal of soils or materials, (b) require remediation, or (c)
require unanticipated soil or foundation preparation work, City shall be financially and
legally responsible for such remediation, removal, replacement preparation work, and /or
disposal. If City does not commence, within thirty (30) days after discovery of any such pre-
existing underground hazard or soil contaminant or soil condition, and thereafter to diligently
prosecute to completion the correction of such condition, Contractor may, without further
obligation or penalty, terminate this Agreement for cause by written notice to City and City
shall reimburse Contractor for any and all reasonable cost related to the construction or
removal of the station and any related improvements paid or committed to by Contractor
prior to determination of the site being unsuitable. This section shall survive termination of
the Agreement.
O. Consequential Damages. Neither party shall have any liability to the other Party for special,
consequential, or incidental damages, except however in connection with a claim made
against either party by a third party, provided that such claim arises out of or results from a
claim within the scope of the indemnity obligation of Contractor or City, as applicable, under
this Agreement.
(End of page. Next page is signature page.)
Page 15
Two Party Agreement Between Ciry ojChu[a Pcrta and
to Conduct the "
Signature Page
to
Agreement between
City of Chula Vista and
Clean Energy, a California corporation
To upgrade, certify and market/advertise the sale of Compressed Natural Gas (CNG) to the
public from the Dispensing Station at the John Lippitt Public Works Center.
IN WITNESS WHEREOF, City and Contractor have executed this Agreement, indicating
that they have read and understood same, and indicate their full and complete consent to its
terms:
Dated:
City of Chula Vista
By:
Attest:
Donna Norris, City Clerk
Approved as to form:
Glen R. Googins, City Attorney
Dated: ~~ ~ r
Cheryl Cox, Mayor
Clean Energy California corporation
By:
Peter Grac
Senior Vice President, Sales & Finance
Dated: ~ /~
Clean Energy Construction, a California
corporation and wholly-owned i iary
of Clean Energy
By: _
Peter
Exhibit List to Agreement (X) Exhibit A.
President, Sales & Finance
Page 16
Two Parry Agreemerct Between City of Chula Vista and
m Conduct the "
Exhibit A
to
Agreement between
City of Chula Vista
and
Clean Energy, a California corporation
1. Effective Date of Agreement: Date Last Executed By Parties
2. City-Related Entity:
(X)City of Chula Vista, a municipal chartered corporation of the State of California
Redevelopment Agency of the City of Chula Vista, a political subdivision of the State of
California
OIndustrial Development Authority of the City of Chula Vista, a
()Other: , a [insert business form]
(City)
3. Place of Business for City:
City of Chula Vista
276 Fourth Avenue
Chula Vista, CA 91910
4. Contractor:
Clean Energy
3020 Old Ranch Parkway, Ste. 400
Seal Beach, CA 90740
Clean Energy Construction
3020 Old Ranch Parkway, Ste. 400
Seal Beach, CA 90740
5. Business Form of Contractor:
OSole Proprietorship
( )Partnership
(X) Corporation
Page 17
Two Parry Agreement Between City ajChufa Puta and
ro Conduct the " '~
6. Place of Business, Telephone and Fax Number of Contractor:
3020 Old Ranch Pazkway, Ste. 400
Seal Beach, California 90740
562-493-2804, 562-493-4532 fax
7. General Duties:
Contractor will purchase all required equipment, fund, famish, supply, and install equipment
including any necessary site modifications required to upgrade, certify, operate, and
market/advertise the sale of Compressed Natural Gas (CNG) to the public (such
purchasers/users referred to herein as the "Third Party Users") from the Station.
8. Scope of Work and Schedule:
A. Detailed Scope of Work:
a. Station. Contractor (at times referred to in this Agreement as "CE") and Clean Energy
Construction, a California corporation and wholly-owned subsidiary of CE shall
design, construct, operate and maintain a public access fueling section (referred to
hereafter as the "Station") to the existing fueling station (referred to hereinafter as the
"City's Station") on the Premises, and shall be responsible for obtaining, at its cost,
all permits relating to the design, construction, operation and maintenance of the
Station. To the extent that this Agreement contemplates the construction of a work of
improvement or any related activity for which a license from the California
Contractor's State License Board is required, all such work will be performed by
Clean Energy Construction as a general contractor. City acknowledges and agrees
that Contractor has no responsibility pursuant to this Agreement or otherwise for
City's Station located at the Premises, including, without limitation, any works of
improvements, the equipment, and/or any operation or maintenance thereof.
b. CNG Service to Third-Party Users. CE shall provide the Station with CNG to fuel
third party vehicles and will bill the Third-Parry Users at rates set in CE's sole and
absolute discretion.
c. Maintenance. CE shall maintain the Station in accordance with the following
requirements:
i. Routine Maintenance. CE shall provide scheduled, routine maintenance service
for the term of this Agreement and shall repair, or replace, any defective parts or
equipment at its expense. CE shall also perform other necessary maintenance or
repairs, including emergency repairs, at its expense, in order to keep the Station
operating. However, any maintenance or repair costs incurred due to damage,
abuse or neglect by City's personnel shall be billed to City at CE's then-existing
rates.
ii. Service Calls. CE shall be available to provide emergency repair service on a 24-
hour, 7-day per week basis, and will provide an emergency contact telephone
number to City. In the event of an emergency at the Station, CE shall use
Page 18
Two Part)+Agreement Between Ciry ojChula Puta and
ro Conduct the " ~
commercially reasonable efforts to respond to any call-out within 30 minutes by
phone and amve on site no later than two (2) hours after called if it is determined
that the emergency situation is related to the CE installed equipment at the public
access fueling section of the City's facility. A 24-hour number must be posted by
the Contractor at the City's dispenser site. When travel distance exceeds 100
miles (from the available technician's location), an additional two (2) hours will
be allowed for arrival on site.
iii. Trainin CE shall offer reasonable training programs to educate City's personnel
as to the procedures for the safe and efficient use of the Station, including,
without limitation, procedures relating to safe vehicle fueling, troubleshooting and
appropriate emergency procedures.
iv. Utilities. City shall be responsible for payment of all utility service chazges for
utility service consumed at the Station during the Term (including, without
limitation, electricity, water, waste disposal, refuse collection and other utility-
type services famished to CE or the Station) other than the natural gas, which is
sold to Third Party Users as CNG vehicle fuel.
The following conditions shall be met by CE:
• Fueling station shall be self serve or staffed by contractor.
• Fueling station shall be capable of dispensing fue124 hours a day.
• Dispenser (s) shall be of latest model available.
• Noise level shall be below City noise ordinance and all other applicable codes.
• At the end of the agreement all dispensing equipment and items installed shall become
the property of the City of Chula Vista.
• CE shall cover equipment installation requirements, noise considerations, abutment,
interconnections to electricity and CNG supply line (s), required engineering, applicable
fees, permits, and inspections and any rebate application processing information.
• All equipment provided shall be new and unused.
• CNG fueling priority shall be for the City's transit fleet between the hours of 7:00 p.m.
and 2:00 a.m.
• Operation of public access CNG fueling station shall not negatively impact the current
fueling of the City's transit fleet.
• If fueling of current transit fleet goes beyond 15 minutes per vehicle, the public access
fueling shall be shut down.
Station Appeazance
CE shall use reasonable efforts to display graphics and colors on the dispensing machines that are
in harmony with the location and placement of the machines. Ideally, theme displays
highlighting Chula Vista points of interest, history, and/or current events are preferred. Other
than simple operating instructions and product identification markings, no advertising shall be
displayed without prior explicit City approval.
Page 19
Two Parry Agreement Between City of Chula VLsta and
to Corsduct the " O.'L 2
Security
CE is responsible for removing all monies from the dispensing machines. Smart cards, debit
cards, bankcazds, vouchers, or tokens may be used in conjunction with or in lieu of cash.
The City shall not be responsible for any theft, damage, vandalism, tampering, or other loss to
vendor-famished equipment.
B. Date for Commencement of Contractor Services:
(X) Same as Effective Date of Agreement
OOther:
C. Dates or Time Limits for Delivery of Deliverables:
Deliverable No. 1: Upgrade, installation and certification of the Station -two months
from the date of execution of this agreement.
D. Date for completion of all Contractor services: Upon final acceptance by the City of
upgrade, installation, and certification of equipment required to operate and market the sale
of CNG from the Station.
E. Term. The initial term is for ten yeazs after the effective date of this Agreement. The
initial term shall be extended for a maximum of two (2) consecutive five (5) year terms,
subject to the termination provisions herein (each extension, a "Renewal Term".) Each
Renewal Term shall be subject to the same terms and conditions as set forth herein.
a. Automatic Extension. This agreement shall be extended automatically for each
successive Renewal Term, unless Contractor or City provides written notice of its intent
not to renew the Agreement to the other party at least sixty (60) calendaz days prior to the
expiration of the Initial Term or then current Renewal Term.
F. In the event that CE is prevented from performing its duties and obligations pursuant to
this Agreement by circumstances beyond its control, including, without limitation, fires,
floods, labor disputes, equipment failure, the interruption of utility services, the cessation of
providing necessazy products or services to CE by any supplier to CE, war, acts of terrorism,
or Acts of God (hereinafter referred to as "Force Majeure"), then CE shall be excused from
performance hereunder during the period of such disability ("Force Majeure Period"). If CE
claims Force Majeure, CE shall notify City within 24 hours after it learns of the existence of
a Force Majeure condition, and will also provide City with an estimate, if one can be
reasonably made, of the anticipated Force Majeure Period. CE will also notify City within
24 hours after the Force Majeure condition has terminated. CE shall agree to use
commercially reasonable efforts to correct whatever events or circumstance cause the Force
Majeure event.
Page 20
Two Party Agreement Between City of Chula Vista and
to Conduct the " "~
9. Services and Materials Required to be Supplied by City to Contractor: Provided the City is
not in default under this Agreement and to the extent the City is not negligent, City shall not
be responsible nor held liable for any failure, whether its own or from a third party's
omission, to provide fuel throughput to the Station. City shall provide no materials.
10. Compensation:
A. (X) Single Fixed Fee Arrangement.
For consideration for the use of the City's compressor equipment and its throughput to
provide third-parry customers (the public) with CNG fuel, Contractor will compensate City
as follows:
Contractor will reimburse City for all City's expenses connected with providing natural gas
to the public access dispenser. Such expenses include the actual and current commodity cost
of natural gas on a per-therm basis, the actual and current cost of electricity necessary to
compress and dry the gas on a per-therm basis, and the actual and current cost of compressor
station maintenance, pro-rated by the volume of gas dispensed by Contractor, priced on a
per-therm basis. In addition, Contractor shall pay the following fixed fees: five (5) cents per
therm dispensed by Contractor to account for capital replacement (weaz & teaz) of the
compressor station equipment, one (1) cent per therm dispensed by Contractor to cover
City's administrative costs associated with providing natural gas to the public access
dispenser, and four (4) cents per therm dispensed by Contractor as a royalty to City. The
royalty only shall be increased annually by three percent (3%), beginning January 1, 2013,
and all other fixed costs in the foregoing sentence shall remain fixed without increase during
the term of this Agreement unless agreed in writing by both City and Contractor. Aside from
the five (5) cent per therm reimbursement for capital replacement, contractor shall not be
responsible for reimbursement of any additional costs associated with equipment replacement
or overhauls.
City will provide Contractor with cost information, as described above, on a monthly basis in
the form of a total per-therm cost, broken down by each expense connected with providing
natural gas to the public access dispenser for CNG sale to Third Parry Users.
Such reimbursements in this Pazagraph l0A shall be paid to City quarterly following
Contractor's receipt and approval of supporting documentation acceptable to Contractor.
City shall retain the right to apply or claim any incentives and/or credits related to the use of
or provision of natural gas fuel. Subject to the availability of Volumetric Excise Tax Credit
or other similaz state or federal tax credit ("VETC"), City alone shall be entitled to file for
and retain one hundred percent (100%) of VETO for all CNG related to City's Station
located at the Premises. Notwithstanding the foregoing, with respect to CNG sales to Third
Party Users at the Station, Contractor alone, during or related to the term hereof, shall file for
VETC and the parties agree as follows: (a) Contractor shall remit to City twenty percent
(20%) of the VETC benefit for all sales of CNG to Third Party Users at the Station; and (b)
Contractor shall be entitled to keep for itself eighty percent (80%) of the VETC benefit for all
sales of CNG to Third Party Users at the Station.
Page 21
Twa Parry Aa eemersl Between Ciry of Chula Vlsta and
to Conduct the " "-
Contractor shall pay all federal, state and local taxes and fees on fuel provided to Third-Party
Users at the Station.
B. ()Phased Fixed Fee Arrangement.
For the performance of each phase or portion of the Defined Services by Contractor as aze
separately identified below, City shall pay the fixed fee associated with each phase of Services,
in the amounts and at the times or milestones or Deliverables set forth. Contractor shall not
commence Services under any Phase, and shall not be entitled to the compensation for a Phase,
unless City shall have issued a notice to proceed to Contractor as to said Phase.
Phase
1.
2.
Fee for Said Phase
3. $
O 1. Interim Monthly Advances. The City shall make interim monthly advances
against the compensation due for each phase on a percentage of completion basis for
each given phase such that, at the end of each phase only the compensation for that
phase has been paid. Any payments made hereunder shall be considered as interest
free loans that must be returned to the City if the Phase is not satisfactorily
completed. If the Phase is satisfactorily completed, the City shall receive credit
against the compensation due for that phase. The retention amount or percentage set
forth in Pazagraph 18 is to be applied to each interim payment such that, at the end of
the phase, the full retention has been held back from the compensation due for that
phase. Percentage of completion of a phase shall be assessed in the sole and
unfettered discretion by the Contracts Administrator designated herein by the City, or
such other person as the City Manager shall designate, but only upon such proof
demanded by the City that has been provided, but in no event shall such interim
advance payment be made unless the Contractor shall have represented in writing that
said percentage of completion of the phase has been performed by the Contractor.
The practice of making interim monthly advances shall not convert this agreement to
a time and materials basis of payment.
C. OHourly Rate An•angement
For performance of the Defined Services by Contractor as herein required, City shall pay
Contractor for the productive hours of time spent by Contractor in the performance of said
Services, at the rates or amounts set forth in the Rate Schedule herein below according to the
following terms and conditions:
Page 22
Two Party Ap eemenPBetween City ojChula Pcrta and
to Conduct the " Q= 2,rj
(1) ONot-to-Exceed Limitation on Time and Materials Arrangement
Notwithstanding the expenditure by Contractor of time and materials in excess of said
Maximum Compensation amount, Contractor agrees that Contractor will perform all of
the Defined Services herein required of Contractor for $ ,
including all Materials, and other "reimbursables" (Maximum Compensation).
(2) OLimitation without Further Authorization on Time and Materials Arrangement
At such time as Contractor shall have incurred time and materials equal to
$ (Authorization Limit), Contractor shall not be entitled to
any additional compensation without further authorization issued in writing and approved
by the City. Nothing herein shall preclude Contractor from providing additional Services
at Contractor's own cost and expense. See Exhibit B for wage rates.
( )Hourly rates may increase by 6% for services rendered after [month], 20, if delay
in providing services is caused by City.
11. Materials Reimbursement Arrangement
For the cost of out of pocket expenses incurred by Contractor in the performance of services
herein required, City shall pay Contractor at the rates or amounts set forth below:
(X)None, the compensation includes all costs.
() Reports, not to exceed $
() Copies, not to exceed $
() Travel, not to exceed $
O Printing, not to exceed $
() Postage, not to exceed $
O Delivery, not to exceed_$
O Outside Services:
O Other Actual Identifiable Direct Costs:
12. Contract Administrators:
not to exceed $
not to exceed $
City: Steve Dorsey, Fleet Manager
1800 Maxwell Rd., Chula Vista, CA 91911
619-397-6194
Contractor: Peter Grace, Senior Vice President, Sales and Finance
3020 Old Ranch Parkway, Ste. 400
Cost or Rate
Page 23
Two Party Agreement Between City of Chula VLrta and
to ConduM the "
-26
Seal Beach, CA 90740
(619)818-7186
13. Liquidated Damages Rate:
() $ per day.
(X) Other: None.
14. Statement of Economic Interests, Contractor Reporting Categories, per Conflict of Interest
Code (Chula Vista Municipal Code chapter 2.02):
(Not Applicable. Not an FPPC Filer.
O FPPC Filer
OCategory No. 1. Investments, sources of income and business interests.
OCategory No. 2. Interests in real property.
OCategory No. 3. Investments, business positions, interests in real property, and
sources of income subject to the regulatory, permit or licensing authority of the
department administering this Agreement.
()Category No. 4. Investments and business positions in business entities and sources of
income that engage in land development, construction or the acquisition or sale of
real property.
()Category No. 5. Investments and business positions in business entities and sources
of income that, within the past two yeazs, have contracted with the City of Chula
Vista or the City's Redevelopment Agency to provide services, supplies, materials,
machinery or equipment.
OCategory No. 6. Investments and business positions in business entities and sources of
income that, within the past two yeazs, have contracted with the deparment
administering this Agreement to provide services, supplies, materials, machinery or
equipment.
OList Contractor Associates interests in real property within 2 radial miles of Project
Property, if any:
Page 24
Two Party Agreement Betweers City of Chula Prsta and
to Conduc( the " (1- 2
15. ()Contractor is Real Estate Broker and/or Salesman
16. Permitted Subcontractors:
17. Bill Processing:
A. Contractor's Remittance to be submitted for the following period of time:
OMonthly
(X) Quarterly
()Other:
B. Day of the Period for submission of Contractor's Remittance:
()First of the Month
(X)15th Day of each Month
()End of the Month
()Other:
C. City's Account Number: 39120-4991
18. Security for Performance
OPerformance Bond, $
O Letter of Credit, $_
OOther Security:
Type:
Amount $
ORetention. If this space is checked, then notwithstanding other provisions to the contrary
requiring the payment of compensation to the Contractor sooner, the City shall be entitled
to retain, at their option, either the following "Retention Percentage" or "Retention
Amount" until the City determines that the Retention Release Event, listed below, has
occurred:
Retention Percentage:
Retention Amount: $_
Retention Release Event:
() Completion of All Contractor Services
( )Other:
Page 25
Twa Party Agreement Between City ojChu[a (rsta and
to Conduct the " ~ - 2 s
RESOLUTION 2011-
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA AWARDING A CONTRACT TO CLEAN
ENERGY FOR THE INSTALLATION, OPERATION AND
MAINTENANCE OF A COMPRESSED NATURAL GAS (CNG)
FUEL DISPENSER ACCESSIBLE BY THE GENERAL
PUBLIC, IN ACCORDANCE WITH THE TERMS AND
CONDITIONS OF REQUEST FOR PROPOSAL NUMBER 11-
09/10
WHEREAS, City desires maintenance, service and operation of its public access
compressed natural gas (CNG) Dispensing Station for the sale of CNG to the public; and
WHEREAS, Contractor desires to maintain, service and operate for the City a dispensing
station for the sale of CNG to the public; and
WHEREAS, Contractor will purchase all required equipment, fund, furnish, supply and
install said equipment, including any necessary site modifications required to upgrade, certify,
and market/advertise the sale of CNG to the public from the City's dispensing station; and
WHEREAS, Contractor warrants and represents that it is experienced and staffed in a
manner such that it can deliver the services required of Contractor to City in accordance with the
timeframes and the terms and conditions of this Agreement.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula
Vista does hereby award a contract to Clean Energy for the installation, operation and
maintenance of a Compressed Natural Gas (CNG) fuel dispenser accessible by the general
public, in accordance with the terms and conditions of Request for Proposal Number 11-09/10.
Presented by Approved as to foam by~-- ~~
Richard A. Hopkins ~rl~n R. Good
Director of Public Works Ci y Attorney
9-29