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HomeMy WebLinkAboutAttachment 1 - Draft MOU with Town Fueling StationATTACHMENT 1 MEMORANDUM OF UNDERSTANDING This Memorandum of Understanding (“MOU”) is entered on the ____ day of November, 2020 (“Effective Date”), between the Truckee Donner Public Utility District (“TDPUD”) and Town of Truckee (“Town”) to establish terms for TDPUD’s use of Town’s fueling station. RECITALS 1. Town and TDPUD are each California public agencies possessing the authority to make the most efficient use of their respective powers, and to cooperate with other municipal authorities and districts to obtain mutual advantage and best meet the needs of local communities. 2. Town is investigating whether to add capacity to its existing fueling station located at 10969 Stevens Lane, Truckee, California and is interested in cooperating with other public agency partners in such development or use of the additional capacity. 3. Town is also investigating the conversion of its fuel supply from diesel to renewable diesel. 4. TDPUD is interested in diversifying its fueling facilities and wishes to investigate participation in additional fueling station capacity. 5. Town and TDPUD (collectively, the “Parties”) understand the Truckee Fire Protection District (“Truckee Fire”) also shares preliminary interest in participating in the development or use of any additional fueling station capacity undertaken by the Town. 6. Before finalizing the construction documents for the development of additional fuel station capacity, the Parties wish to engage in a pilot program in which TDPUD will utilize the Town’s existing fuel station. NOW THEREFORE, the Parties agree as follows: 1. PURPOSE: A. To authorize a short-term pilot project (“Pilot Project”) in which TDPUD fleet vehicles will utilize the Town’s existing fueling station (“Fueling Station”), under the terms set forth herein and in Exhibit A. B. Should the Parties determine the Pilot Project to be successful, the Parties shall discuss a long-term agreement in which the TDPUD vehicles will utilize the Fueling Station once a new fuel tank is installed (“New Fuel Tank Project”), under the terms set forth herein and in Exhibit B. C. This MOU further defines: i. The roles and responsibilities of the Parties under both the Pilot Project and New Fuel Tank Project. ii. The financial obligations of the Parties under both the Pilot Project and the New Fuel Tank Project. 2. TERM: The term of this MOU shall commence on the Effective Date. During the term hereof, TDPUD shall have use of the Fueling Station. TDPUD shall notify the Town in writing by March 30, 2021 whether TDPUD intends to participate in the New Fuel Tank project, as further described in Exhibit B. The Pilot Project shall continue until either the new fuel tank is operational or until April 15, 2021 (in the case that TDPUD determines it no longer wants to fuel at the Fueling Station). If the New Fuel Tank Project is pursued and TDPUD has indicated that it wishes to participate, this MOU will remain in effect for five (5) years from the time that the New Fuel Tank is operational (the “New Fuel Tank Term”). This MOU will thereafter automatically renew for successive five (5) year periods unless amendments or termination are requested by either of the Parties. 3. SAFETY: It shall be the joint duty of TDPUD and the Town to ensure that proper safety practices shall be observed at all times while the Parties’ respective personnel are using the Fueling Station. In this regard, TDPUD and the Town will follow all federal, state, and local rules and regulations applicable to operations at the Fueling Station. 4. OPERATIONS AND MAINTENANCE: Town shall remain solely and exclusively responsible for all operation and maintenance responsibilities associated with the Fueling Station throughout the duration of this MOU, provided that nothing herein shall affect TDPUD’s responsibilities under paragraph 3 herein. Without limiting the generality of the foregoing, the Town shall remain exclusively responsible for all offloading of bulk fuel deliveries, all tank maintenance and inspection, maintenance and inspection of fuel service stations, and the obligation to possess appropriate permits and licenses for the Fueling Station. TDPUD shall have no right to construct, install, remove, modify, and/or repair any buildings, structures, tanks, dispensing equipment, pavement, or any other part of the premises at the Fueling Station. 5. TOWN’S RESERVED RIGHTS: Nothing herein shall restrict, limit, or otherwise affect the rights of Town to further develop, modify, or improve the Fueling Station during the term of this MOU in Town’s sole discretion. 6. USE OF FUELING STATION AT TDPUD’S RISK: All TDPUD employees and property of every kind using or present at the Fueling Station during the term of this Agreement shall be at the sole risk of TDPUD; and the Town shall not be liable to TDPUD for any injury, loss, or damage to any persons or property in or upon said premises, or upon the sidewalks and alleyways or other contiguous areas thereto. TDPUD shall defend (with counsel acceptable to Town), indemnify, and hold harmless Town from and against any and all claims, demands, losses, damages, liabilities, fines, penalties, charges, administrative and judicial proceedings and orders, judgments, and all costs and expenses incurred in connection therewith, including, without limitation, actual attorneys' fees and costs of defense and costs and expenses of all experts and consultants (collectively, the "Losses"), arising directly or indirectly, in whole or in part, out of the use of the Fueling Station by TDPUD personnel, or the breach or alleged breach of any obligation contained in this MOU, with the exception of Losses caused by the sole negligence or willful misconduct of the Town, or its officers, agents, and employees. 7. DAMAGE CAUSED BY TDPUD EMPLOYEES: TDPUD shall, at Town’s option, either repair or reimburse Town for the cost of repairing any damage to the Fueling Station and/or surrounding property caused by a TDPUD employee or vehicle, including without limitation cleanup of fuel spilled by TDPUD employees. TDPUD shall immediately notify Town in the event of a fuel spill exceeding one gallon or the occurrence of any damage to the Fueling Station or Town property. 8. INSURANCE: TDPUD shall maintain the insurance required under this paragraph 8 at all times during the term of this MOU. 8.1 Types of Insurance Required. Without limiting the indemnity provisions of this MOU, TDPUD shall procure and maintain in full force and effect following policies of insurance. Notwithstanding the minimum policy limits set forth below, Notwithstanding the foregoing, if TDPUD maintains higher limits than the specified minimum limits, Town requires and shall be entitled to coverage for the higher limits maintained by TDPUD. 8.1.1 Commercial General Liability: Commercial General Liability Insurance which affords coverage at least as broad as Insurance Services Office “occurrence” form CG 0001, or the exact equivalent, and shall be no less than $1,000,000 per occurrence and no less than $2,000,000 in the general aggregate. Defense costs shall be paid in addition to the limits. The policy shall contain no endorsements or provisions limiting coverage for (1) contractual liability; (2) cross liability exclusion for claims or suits by one insured against another; or (3) contain any other exclusion contrary to this MOU. 8.1.2 Workers’ Compensation: Workers' Compensation Insurance, as required by the State of California and Employer's Liability Insurance with a limit of not less than $1,000,000 per accident for bodily injury and disease. 8.2 Endorsements. Required insurance policies shall not be in compliance if they include any limiting provision or endorsement that has not been submitted to the Town for approval. 8.2.1. The policy or policies of insurance required by paragraph 8.1.1 shall be endorsed to: (a) include as additional insureds Town, its officials, employees and agents, using standard ISO endorsement No. CG 2010 with an edition date of 2010 or another edition date acceptable to Town; and (b) provide that required insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the Town except ten (10) days shall be allowed for non- payment of premium. 8.2.2 The policy or policies of insurance required by paragraph 8.1.2, Workers' Compensation, shall be endorsed to provide the following: (a) a waiver of subrogation stating that the insurer waives all rights of subrogation against the indemnified parties; (b) provide that required insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the Town except ten (10) days shall be allowed for non-payment of premium. 8.3 Primary and Non-Contributing Insurance. All insurance coverage shall be primary and any insurance or self-insurance maintained by the Town, its directors, officials, officers, employees, agents, and volunteers shall be excess of TDPUD’s insurance and shall not be called upon to contribute with it in any way. Policies shall contain or be endorsed to contain such provisions. 8.4 Waiver of Subrogation. Required insurance coverages shall not prohibit TDPUD from waiving the right of subrogation prior to a loss. TDPUD shall waive all subrogation rights against the indemnified parties. Policies shall contain or be endorsed to contain such provisions. 8.5 Deductible. Any deductible or self-insured retention must be approved in writing by the Town and shall protect the indemnified parties in the same manner and to the same extent as they would have been protected had the policy or policies not contained a deductible or self-insured retention. 8.6 Evidence of Insurance. TDPUD, concurrently with the execution of this MOU, and as a condition precedent to the effectiveness thereof, shall deliver either certified copies of the required policies, or original certificates and endorsements on forms approved by Town. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. At least fifteen (15) days prior to the expiration of any such policy, evidence of insurance showing that such insurance coverage has been renewed or extended shall be filed with Town. If such coverage is cancelled or reduced, TDPUD shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the Town evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies. 8.7 Acceptability of Insurers. Each such policy shall be from a company or companies with a current A.M. Best's rating of no less than A:VII and authorized to do business in the State of California, or otherwise allowed to place insurance through surplus line brokers under applicable provisions of the California Insurance Code or any federal law. Notwithstanding the foregoing, TDPUD may satisfy the requirements of this paragraph 8 by maintaining coverage through a joint powers self-insurance pool, provided such coverage otherwise satisfies such requirements. 9 TERMINATION: Either Party, at its option, may terminate this MOU for any reason whatsoever without any liability of any nature to the other Party by giving thirty (30) days written notice to the other party. 10 GENERAL PROVISIONS: 10.1 Entire Agreement. This MOU contains the entire agreement of the Parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. This MOU may only be modified by a writing signed by both Parties. 10.2 Governing Law. This MOU shall be governed by the laws of the State of California. Any action to interpret or enforce this MOU shall be brought in the Truckee branch of the Nevada County Superior Court. 10.3 Assignment or Transfer. TDPUD’s rights, obligations, and duties under this MOU may not be transferred in whole, or in part to another party. 10.4 Construction; References; Captions. Since the Parties or their agents have participated fully in the preparation of this MOU, the language of this MOU shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not work days. All references to TDPUD include all personnel and employees of TDPUD, except as otherwise specified in this MOU. All references to Town include its elected officials, officers, employees, agents, and volunteers except as otherwise specified in this MOU. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this MOU. 10.5 Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel, or otherwise. 10.6 No Third-Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties. 10.7 Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect. TOWN OF TRUCKEE Dated: __________________ ________________________________________ Jennifer Callaway, Town Manager APPROVED AS TO FORM: Dated: __________________ ________________________________________ Andrew Morris, Town Attorney Town of Truckee TRUCKEE DONNER PUBLIC UTILITY DISTRICT Dated: __________________ ________________________________________ Brian Wright Interim General Manager APPROVED AS TO FORM: Dated: __________________ ________________________________________ Steve Gross General Counsel EXHIBIT A TERMS OF PILOT PROJECT A. USE OF FUELING STATION FACILITIES: TDPUD shall have access to the Fueling Station to directly obtain fuel as needed, in accordance with standard practices currently prevailing at the Fueling Station. Such access shall be strictly limited to vehicles bearing TDPUD insignia and for official TDPUD purposes only. TDPUD shall provide, and update as necessary, a roster of license plate numbers for the TDPUD fleet vehicles that may utilize the Fueling Station. Town shall issue TDPUD any necessary fueling access devices and necessary training. Such fueling access devices shall include a unique identifier for each vehicle and one employee ID to represent all TDPUD employees to track the quantities of fuel obtained by a TDPUD vehicles. TDPUD vehicle mileage will not be tracked as a part of the pilot project. Should the Town at any point during the Pilot Project anticipate a fuel shortage will occur due to adverse weather conditions or delayed deliveries, the Town will notify TDPUD immediately. TDPUD agrees to seek alternative fuel sources within 24 hours of receiving such notice. TDPUD shall not obtain fuel from the Fueling Station until the Town notifies TDPUD that the shortage has ended. On or before March 30, 2021, TDPUD shall notify Town in writing whether it intends to participate in the New Fuel Tank project, under the terms describe in Exhibit B. If TDPUD does not wish to participate in the New Fuel Tank Project, TDPUD’s use of the Fueling Station shall terminate on April 15, 2021. B. INGRESS AND EGRESS: Upon and after the Effective Date, and for the duration of the Term, TDPUD shall have the right of ingress to and egress from the Fueling Station for the purposes described herein. TDPUD employees and vehicles shall take reasonable steps to avoid interference with Town’s use of the Fueling Station. C. INVOICING AND PAYMENT: The Town shall issue TDPUD one invoice at the end of the Pilot Project for the amount of fuel supplied to TDPUD, plus taxes, $0.09 per gallon to offset the Town’s maintenance costs, as well as $500 to offset the Town’s costs of setting up the Pilot Project and billing TDPUD. The invoice shall identify the amount of fuel used by each fueling access device issued to TDPUD and the rate charged for fuel, which TDPUD acknowledges will fluctuate during the Pilot Project. TDPUD shall pay the invoice within thirty (30) days of receipt thereof. EXHIBIT B TERMS OF NEW FUEL TANK PROJECT The provisions of this Exhibit B shall take effect only if TDPUD has provided a timely notice to the Town pursuant to Section 2 of the MOU, indicating TDPUD’s commitment to participate in the New Fuel Tank project. A. USE OF FUELING STATION FACILITIES: During the New Fuel Tank Term, TDPUD shall have access to the Fueling Station to directly obtain fuel as needed, in accordance with standard practices currently prevailing at the Fueling Station. Such access shall be strictly limited to vehicles bearing TDPUD insignia and for official TDPUD purposes only. TDPUD shall provide a roster of license plate numbers for the TDPUD fleet vehicles that may utilize the Fueling Station. The Town shall work with the fuel supplier, Hunt & Sons, to issue TDPUD any necessary fueling access devices. Such fueling access devices shall include a unique identifier to track the quantities of fuel obtained by TDPUD vehicles and shall have the ability to track fuel usage by vehicle and employee and shall track mileage. B. COST SHARE FOR FUELING STATION CAPITAL INVESTMENT: If by March 31, 2021, TDPUD desires to continue use of the Town’s Fueling Station, TDPUD shall provide a payment to the Town for the capital investment associated with the existing 20,000 gallon tank plus a new 20,000 gallon tank. The Town, TDPUD, and Truckee Fire’s fair share percentages are as follows: Entity Total Estimated Annual Fuel Usage Fair Share Percentage Town 90,900 65% TDPUD 34,780 25% Truckee Fire 14,342 10% Total 140,022 100% The cost of the infrastructure to be shared by the Parties is equal to the sum of the following: a. Estimated construction cost of the existing tank ($356,700), depreciated 33% (10 years of a 30 year life), or $238,989 b. Actual construction cost of the new 20,000 gallon tank, currently estimated to be $265,000. c. Total estimated infrastructure cost = $503,989 The actual fair share amount will be based on the actual construction cost (construction contract amount plus construction management cost associated with consultant fees and Town staff time). The construction cost of the existing tank will remain fixed at $238,989. TDPUD’s fair share cost for the capital investment is currently estimated to be $125,997 (25 percent of $503,989). TDPUD shall make an initial payment to the Town of $59,747.25 (25% of the existing fuel tank cost) on or before April 30, 2021. The second payment will be due as outlined in Paragraph C below. C. NEW FUEL TANK CONSTRUCTION: The Town will solicit bids to construct the New Fuel Tank. After the Town receives and opens bids and determines an apparent low bidder the Town shall notify TDPUD. Within 10 days of receiving the notice of the bid amount from the Town, TDPUD shall deposit with the Town an amount equal to 25% of the estimated construction cost for the New Fuel Tank plus an additional 15% to cover the construction contract contingency and construction management and inspection costs. Within 45 days of receiving TDPUD’s deposit, the Town shall award and enter into a contract for the construction of the New Fuel Tank. Within 60 days of completion of the New Fuel Tank, the Town and TDPUD will reconcile any remaining costs or outstanding invoices. Town shall cause the construction of the New Fuel Tank to occur and will begin the use of Renewable Diesel once the New Fuel Tank is operational. D. FUEL RATES AND OTHER CHARGES: During the New Fuel Tank Term, the fuel supplier, Hunt & Sons will bill TDPUD directly for the fuel utilized by TDPUD. The cost per gallon shall include the cost of fuel and applicable taxes. In addition, the Town shall invoice TDPUD annually for its share of the maintenance costs for the Fueling Station, comprising 25 percent of the maintenance costs, including inspections and repairs. TDPUD shall be entitled to review the books and records of the Town to validate and verify the calculation of the fuel rates charged to TDPUD. TDPUD shall pay each invoice issued by Town or Hunt & Sons within thirty (30) days of receipt thereof.