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HomeMy WebLinkAboutC-2527pc,( xt CONTRACT NO. 10 -016 CITY OF ARCADIA RIGHT OF ENTRY LICENSE AND °! A -F �9pm PURCHASE AND USE AGREEMENT Doc. No. 4949814 P. 1 of 7 This Right of Entry License and Purchase and Use Agreement ( "Agreement ") is made and entered into as of the date executed by Foothill Transit by and between Foothill Transit, a joint powers agency organized under the laws of the State of California with its principal place of business at 100 South Vincent Avenue, Suite 200, West Covina, California 91790 and the City of Arcadia, California with its principal place of business at 240 West Huntington Drive, Arcadia, California 91007 (hereinafter "City "). Foothill Transit and the City are sometimes individually referred to as a "Party" and collectively as "Parties." WHEREAS, Foothill Transit is the owner of and operates an Operations and Maintenance Facility located at 5640 Peck Road, Arcadia, California 91006 (hereinafter "Facility "); and WHEREAS, the City desires to purchase Compressed Natural Gas (CNG) from Foothill Transit, and to fuel City vehicles at the Facility; and WHEREAS, Foothill is willing to allow the City to purchase the CNG and fuel the City's vehicles at the Facility in accordance with the terms and conditions contained herein. NOW THEREFORE, the Parties agree as follows: 1. Licensed Areas. Foothill Transit grants to the City a revocable, nonexclusive license to enter onto the Facility following the direction of travel as marked at the Facility for the purpose of fueling the City's Hybrid Vehicles (the "Vehicles"), on a daily basis between the hours of 8:00 a.m. and 1:00 p.m., and during unspecified times on Saturdays. Such license is granted provided that the City's use of the Facility for such purposes does not interfere with Foothill' Transit's bus operations, including, without limitation, the need to fuel Foothill Transit's buses. 2. Term. The term of this Agreement shall commence upon execution of the Agreement, and continue until January 1, 2020, provided, however; that either Party may terminate this Agreement by providing fifteen (15) days written notice to the other Party 3. Accommodation. Foothill Transit has entered into this Agreement as an accommodation to the City. The execution of this Agreement, however, shall not be construed to provide the City with any rights beyond those expressly provided herein. 4. Use, The CNG fueling island is located on the eastern side of the Facility. The Vehicles shall follow the direction of travel as marked at the Facility. The operator of each Vehicle shall stop the Vehicle at the fuel island and wait for a service attendant. The service attendant will fuel the Vehicle, and return control of the Vehicle to the City operator upon completion of the fueling. The City operator shall then exit the Facility following the marked direction of travel. Each City operator shall be required to sign for receipt of fuel on a predetermined form. The City shall not park any Vehicle overnight nor perform repairs or maintenance on any Vehicle at the Facility. All City operators Doc. No. 4949814 R2of7 shall comply with Foothill Transit and its service contractor's yard safety procedures at all times while at the Facility. S. Cost Foothill will charge the City for all CNG fuel provided by Foothill at the rate specified in Exhibit A for the applicable month. The City is liable for the payment of any and all taxes, known and unknown due as a result of this Agreement. 6. User Use Fuel Tax Permit The City will obtain a California User Use Fuel Tax Permit and request to pay the per- vehicle "Annual Flat Rate." Upon approval by the Board of Equalization, the City will affix a valid decal issued by the Board of Equalization on approved vehicles indicating the annual flat fee has been paid. Foothill Transit will recognize the valid decal(s) as full payment of the "Use Fuel Tax" and not collect "Use Fuel Tax" on Compressed Natural Gas (CNG) sales to the City 7. Invoicing. Foothill Transit will provide a detailed invoice to the City reflecting the CNG fuel provided by Foothill Transit per day. The City will pay properly completed invoices within fourteen (14) business days from the date of the invoice. 8. Indemnification. The City shall defend, indemnify and hold Foothill Transit, its Members, officials, officers, volunteers, agents, and independent contractors who serve as Foothill Transit officers, officials, or staff (hereinafter referred to as "Indemnitees ") 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 or incident to any negligent acts, omissions or willful misconduct of the City, its officials, officers, employees, agents, contractors and subcontractors arising out of or in connection with the City's entry upon the Facility or use of any Foothill Transit equipment at the Facility, other than damages resulting from Foothill Transit's negligence, including without limitation reimbursement of damages and reasonable attorneys fees and other related costs and expenses. The City shall reimburse Indemnitees' reasonable defense costs, at the City's own cost, expense and risk, any and all such aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against Indemnitees. The City shall pay and satisfy any judgment, award or decree that may be rendered against Indemnitees in any such suit, action or other legal proceeding. The City shall reimburse Indemnitees for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. The City's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by Indemnitees. If any action or proceeding is brought against the City by a third party arising out of or in any way connected with the City's performance or failure to properly perform under the terms of this Agreement, the City shall have the right to defend such action or proceeding by legal counsel of its choice at the sole expense of the City. 9. Insurance. In connection with the use of the Facility hereunder, the City shall provide and keep in force the following types and minimum amounts of insurance: Doc. No. 4949814 P. 3 of 7 Workers' Compensation Insurance — Including Occupational Disease in accordance with California Law. Employers' Liability Insurance with a limit not less than $1,000,000 each accident. General Liability Insurance — Including contractual liability insuring the indemnity agreement set forth in this contract with a combined single limit of not less than $5,000,000 applicable to bodily injury, sickness or death, and loss of or damage to property in any one occurrence. This coverage can be satisfied by a combination of primary and excess liability policies. Automobile Liability Insurance — Including contractual liability insuring owned, non - owned, hired and all vehicles used by Foothill Transit or its service contractor with a combined single limit of not less than $5,000,000 applicable to bodily injury, sickness or death, and loss of or damage to property in any one occurrence. This coverage can be satisfied by a combination of primary and excess liability policies. Certificates — The City shall furnish Certificates of Insurance and separate letters of endorsement to Foothill Transit evidencing the insurance required upon request. Foothill Transit may examine true copies of the actual policies upon 30 days written request of said documents. Each certificate shall provide that thirty (30) days prior written notice shall be given to Foothill Transit in the event of cancellation or material change in the policies. Additional Insureds — Foothill Transit, its Members, officials, officers, volunteers, agents, and independent contractors who serve as Foothill Transit officers, officials, or staff and its service contractor and its officers, employees and agents shall be named as additional insureds in each of the insurance policies except Workers' Compensation. There shall be no special limitations on the scope of protection afforded to Foothill Transit, its Members, officials, officers, volunteers, agents, and independent contractors who serve as Foothill Transit officers, officials, or staff, its officers, their employees and agents. Subrogation — All policies shall be endorsed to provide that underwriters and insurance companies of the City shall not have any right of subrogation against Foothill Transit, its Members, officials, officers, volunteers, agents, and independent contractors who serve as Foothill Transit officers, officials, or contractors, subcontractors, underwriters and insurance companies. Notwithstanding the foregoing, the insurance requirements may be satisfied by providing evidence acceptable to Foothill Transit that the City is legally self- insured. The City agrees that any program of self- insurance shall protect the interests of Foothill Transit in the same manner as those interests would have been protected had a policy of commercial insurance been in effect. 10. Severability. No waiver of any breach of any covenant, condition or stipulation hereunder shall be taken to be a waiver of any succeeding breach of the same Doc. No. 4949814 P. 4 of 7 covenant, condition or stipulation. In the even of default, either party may also pursue those remedies available to it under the laws of judicial decisions of the State of California. 11. Notices. All notices and other communications contemplated shall be in writing and shall be deemed given when personally delivered or received by mail, and shall be personally delivered or mailed by certified mail, return receipt requested, with postage and fees paid, as follows: CITY OF ARCADIA Dave McVey General Services Superintendent City of Arcadia Public Works Services Department 11800 Goldring Road P.O. Box 60021 Arcadia, CA 91066 -6021 Doc. No. 4949814 P. 5 of 7 FOOTHILL TRANSIT George Karbowski Director of Operations Foothill Transit 100 South Vincent Avenue Suite 200 West Covina, CA 91790 (626) 931 -7209 (626) 931 -7309 (Fax) 12. Entire Agreement. This Agreement constitutes the entire understanding between City and Foothill in reference to the scope of this Agreement. 13. Amendment. No modification or amendment of this Agreement shall be binding upon either Party unless in writing and executed by both Parties. This Agreement shall not be amended or modified by oral agreement or otherwise understanding between the Parties or by any acts or conduct of the Parties. Doc. No. 4949814 P.6of7 14. Execution. IN WITNESS WHEREOF, the Parties hereto have caused these presents to be duly executed with all the formalities required by law. CITY OF ARCADIA By: -.-,. Donald Perfman City Manager Date: IaL.1r j 0.7 ATTEST: -19M MULN G City Clerk Approved as to Form: ;-- P �- By: ' Stephen P. Deitsch City Attorney CONCUR: Pat Ma loy Assistant City Manager/ Director of Public Works Services Department Doc. No. 4949814 P. 7 of 7 FOOTHILL TRANSIT By: °�' Doran J. arnes Executive Director Date: Approved as to Form: Edward J. Gill, J Special Counsel sit