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HomeMy WebLinkAboutResolution 2010-179 N.C.S. 09/20/2010Resolution No. 2010-179 N.C.S. of the City of Petaluma, California RESOLUTION APPROVING ASELF-FUELING AGREEMENT AND ACCOMPANYING RULES AND REGULATIONS FOR SELF-FUELING AT THE PE'TALUMA MUNICIPAL AIRPORT AND AUTHORIZING CITY MANAGER TO EXECUTE THE AGREEMENT ON BEHALF OF THE CITY OF PETALUMA WHEREAS, as a recipient of Federal. Aviation Administration (FAA) grants for capital improvements, the Petaluma Municipal Airport .must abide by the Grant Assurances the FAA dictates; and, WHEREAS, Section 11.1 of the Assurances obligates the Airport to permit aeronautical users the right to self-service their own aircraft "in conformance with the sponsor's rules and regulations pertaining to self-service operations"; and, WHEREAS, currently, there are no rules and regulations governing self-service fueling at the Airport, and one tenant is performing this operation; and, WHEREAS, the proposed Self Fueling Agreement and accompanying Rules and Regulations for Self-Fueling require safety standards that will protect the City of Petaluma; and, WHEREAS, WHEREAS, at their meeting of September 2, 2010, the Airport Commission took action recommending that the City Council approve the Self Fueling Agreement and accompanying Rules and Regulations for Self-Fueling. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Petaluma hereby 1. Approves the Self Fueling Agreement and accompanying Rules and Regulations for Self- Fueling at the Petaluma Municipal Airport, attached as Exhibit A to Resolution and incorporated herein by reference; and 2. Authorizes the. City Manager to execute the agreement on behalf of the City of Petaluma. Under the power and authority conferred upon this Council by the Charier of said City. REFERENCE: 1 hereby certify the foregoing Resolution was introduced and adopted by the Council of the City of Petaluma at a Regular meeting on the 20`h day of September, 2010, by the following vote: AYES: Barrett, Vice Mayor Glass, Harris, Healy, Rabbitt, Renee, Mayor Torliatt NOES: None ABSENT: None ABSTAIN: None ATTEST: ~/~.~~C~/1.~~~ City Clerk City Resolution No. 2010-179 N.C.S. Page 1 EXIII~IT A TO RESOI.UTI®N DRAFT AIRPORT SELF-FUELING AGREEMENT PETALUMA MUNICIPAL AIRPORT This Self-Fueling Agreement ("Agreement") is made and entered effective , 20_, by and between the City of Petaluma, a California municipal corporation ("City"'), and a ("Lessee"). City and Lessee are hereinafter referred to individually as "Party" and collectively as "Parties." WHEREAS, City owns all that certain real property located at the Petaluma Municipal Airport ("Airport"); and WHEREAS, Lessee leases from the City the premises at the Airport more particularly identified on Exhibit A attached and incorporated by reference herein ("Leased Premises") pursuant to that certain dated [as amended on ], incorporated by reference as if fully set forth herein ("Lease"); and WHEREAS, Lessee desires to self-fuel Lessee's aircraft at the Leased Premises, and City is willing to permit such self fueling, but only upon the terms and conditions set forth in the Regulations for Self-Fueling approved by the City on , 2010 pursuant to Resolution No. , as the same may be amended from time to time, attached as Exhibit B and incorporated herein by reference ("Regulations"). NOW, THEREFORE, in consideration of the promises and mutual covenants contained in this Agreement, City and Lessee hereby agree as follows: Compliance with Regulations. Lessee has received and reviewed the Regulations attached hereto as Exhibit B, and agrees to comply, and to cause all Operators (as defined in the Regulations) to comply, at all times with the Regulations. Termination of Agreement. This Agreement, and Lessee's right to self-fuel its aircraft at the Leased Premises, shall be terminated as follows: (i) by either Party upon not less than thirty (30) days written notice to the other Party, except that City may act to terminate this Agreement immediately for cause, without notice, in the case of a failure by Lessee to comply with the terms of this Agreement that presents a clear and immediate danger to the public health, safety and welfare generally and/or to Airport operations and/or users; (ii) termination of the Lease; or (iii) Lessee's assignment or sublease of the Lease, or assignment of this Agreement, without City's prior written consent. 3. Assignment or Delegation. Lessee may not assign or delegate its rights under this Agreement, regardless of any assignment or sublease of the Lease, without City's prior written consent. Any purported assignment or delegation without City's prior written consent shall be void, and City may treat such purported assignment or delegation as a material breach of this Agreement subject to termination in accordance with Section 2 of this Agreement. 4. Fuel Flowage Fee. The fuel flowage fee payable to City shall be ($ )per gallon. Notices. Any and all notices to be given under this Agreement or otherwise may be given by enclosing the same in a sealed envelope addressed to the Party intended to receive same, at its address, and deposited in the United States Post Office as registered mail with postage prepaid. When so given, such notice shall be effective from the date Resolution No. 2010-179 N.C.S. Page 2 of mailing. Unless otherwise provided in writing by the Parties, the addresses to which notices shall be sent are: To City: To Lessee: b. Amendment. This Agreement may be amended only by a written instrument executed by authorized representatives of each Party. Construction. The Parties agree that, notwithstanding Civil Code Section 1654, any uncertainty in the Agreement shall not be construed against the drafter of the Agreement. 8. Severability. If a court of competent jurisdiction holds that any term or portion of this Agreement is unenforceable, the remaining portions of this Agreement shall continue in full force and effect. No Third Party Beneficiaries. The Parties do not intend to create, and nothing in this Agreement shall be construed to create, any benefit or right in any third party. 10. Non-Waiver. The failure to enforce any provision of this Agreement or the waiver thereof in a particular instance shall not be construed as a general waiver of any part of such provision, and the provision shall remain in full force and effect. 11. Governing Law; Venue. This Agreement shall be enforced and interpreted under the laws of the State of California and the City of Petaluma. Venue for any action arising from or brought in connection with this Agreement shall be in the County of Sonoma, State of California, or the United States District Court for the Northern District of California, as applicable. 12. Entire Agreement. This Agreement, including Exhibits A and B hereto, constitutes the entire agreement between the Parties and supersedes all prior agreements or understandings, oral or written, between the Parties concerning the subject matter of this Agreement. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above. CITY OF PETALUMA LESSEE John C. Brown, City Manager [Printed Name] ATTEST: City Clerk APPROVED AS TO FORM: City Attorney Resolution No. 2010-179 N.C.S. Page 3 EXHIBIT B TO AGREEMENT DRAFT Regulations for Self-Fueling Tenants of the Petaluma Municipal Airport Applicability. These Regulations apply to those private parties who have executed leases with the City of Petaluma ("City") and have executed a "Self-Fueling Agreement" with City for the self-fueling of their aircraft ("Tenants"), and to those persons, including but not limited to Tenants, who use, cause to be used, or authorize use of a Tenant's aircraft, with or without the right of legal control (as owner, lessee or otherwise) ("Operators"), for the purpose of air navigation including the piloting of the aircraft, or any part of the surface of the Petaluma Municipal Airport ("Airport"). All references herein to Operators shall be deemed to include Tenants. Fueling. Fuel shall only be dispensed by or on behalf of those Tenants who have a written lease or other agreement granting such permission, which is signed by both Tenant and City. Fuel shall be uploaded from the Airport storage tank into Tenant's fuel trucks by Airport staff only. 2. Fueling Areas. Self-fueling is prohibited in any hangar. Fueling activities shall be conducted outdoors and only in such areas as designated by Airport Manager. No aircraft may be fueled unless the point of contact between the fuel transfer device (e.g., the fuel nozzle) and the aircraft fuel tank is at lease ten (10) feet away from any hangar structures or enclosed space. No fueling may occur within fifty (50) feet of any combustion and ventilation air-intake to any boiler, heater, or incinerator room. 3. Fueling Apparatus and Permit Issuance. Prior to the use of any type of self-fueling apparatus, Operators shall have such apparatus inspected, at Tenant's expense, by a third-party licensed Professional Engineer with experience and/or training in Fire Protection, to be approved by the City Fire Marshal, and referred to herein as a Fire Protection Engineer ("FPE"). Results of the inspection shall be submitted in writing to, and require written concurrence by, the Fire Marshal. All hoses and de-fueling equipment shall be maintained in safe, sound, and non-leaking condition at all times. During the fueling of an aircraft, the dispensing apparatus and the aircraft shall be bonded in accordance with all applicable codes and standards, including but not limited to the California Fire Code, National Fire Protection Association (NFPA) Standards, and FAA and Federal Aboveground Tank regulations (collectively, "Applicable Laws"). Tenant shall submit to the Airport Manager a plan for daily, monthly, and yearly inspection procedures for fueling apparatus, including forms to be used and submittal and filing procedures. The FPE shall review all forms, inspect each vehicle, and review all training and inspection records for each re-fueeer prior to operation. The FPE shall also inspect fueling vehicles on an annual basis and provide an opinion regarding whether or not each vehicle and fueling operation is in compliance with all Applicable Laws and these Regulations ("Re-Fueler Annual Report"). The Re-Fueler Annual Report shall contain all relevant records for the prior year, including without limitation reports of inventory, daily/monthly inspections, training, and all items referenced in this Section 3. The Re- Fueler Annual Report shall be submitted to the Fire Marshal, whose concurrence shall be required for issuance of aSelf-Fueling Permit, and maintained by the Airport Manager. The Re-Fueler Annual Report is subject to review by the Fire Marshal during compliance inspections and at other times as requested by the Fire Marshal. The Fire Marshal reserves the right to request additional information and/or testing to confirm Tenant's compliance. The FPE shall develop "Standard Operating Procedures" for the fueling of aircraft. All persons engaged in any manner in the fueling operation must be trained, and current written documentation of such training must be submitted to and maintained by the Airport Manager. Issuance of a Fire Permit shall be at the discretion of the Fire Marshal, in the exercise of reasonable judgment to ensure compliance with these Regulations and protection of the public safety. If the Re-Fueler Annual Report indicates that the Operator is in Resolution No. 2010-179 N.C.S. Page 6 compliance with all applicable regulations, the Fire Marshal's Office may issue aone- year operational Self-Fueling Permit. If the FPE's annual report identifies deficiencies, the Operator will normally have thirty (30) days to achieve compliance; provided, however, that the Fire Marshal reserves the right to revoke the annual Self-Fueling Permit and recommend termination of the Self-Fueling Agreement or allow additional time to correct deficiencies. In the event that the Re-Fueler Annual Report identifies an emergency situation, the Fire Marshal shall, in the exercise of his or her sole discretion and at his or her option, require immediate compliance and/or termination. 4. Compliance with City and State Law. Applicable Laws with which Tenants and Operators must comply include not only those laws and regulations referenced in Section 3, but also Chapter 16.24 of the Petaluma Municipal Code and all applicable local, state, and federal regulations. Without limiting the foregoing, Applicable Laws shall include aircraft fueling and de-fueling requirements, including but not limited to, ground devices, prohibition of smoking while fueling, fueling hoses, and restrictions on engine start-up. Additionally, fueling, de-fueling and fuel storage activities at the Airport shall conform to the current applicable provisions of Title 14 of the Code of Federal Regulations, as amended; FAA Circular 150/5230-4A (including updates or amendments); applicable provisions of the Petaluma Airport Storm Water Pollution Prevention Plan ("SWPPP");and applicable. provisions of Environmental Protection Agency regulations. No person shall dispose of any oils, fuels, solvents, chemicals, or any other toxic substances or pollutants on Airport property except in receptacles provided for that purpose, nor allow them to enter, or pose a risk of entry into, the surface water, sewer, or drainage system. Waste fuel (hazardous waste) must be disposed of according to requirements specified in California Health and Safety Code Section 23500 et seq. and Title 22, California Code of Regulations. Failure to comply with these regulations may result in both civil and criminal penalties. Operators are be required to submit a complete a Hazardous Materials Business Plan ("HMBP") pursuant to Health and Safety Code Section 23500 et seq. Operators shall pay all associated fees and submit their plan electronically to the California Environmental Reporting System ("CERS") pursuant to AB 228b. Bonding. During fueling and de-fueling, the aircraft shall be properly bonded. Operators shall connect bonding cables from. the fueling vehicle to the aircraft. Operators shall disconnect grounding and bonding cables in reverse order. All grounding and bonding must be done according to accepted codes and standards as confirmed by the FPE. Tenant shall obtain Standard Operating Procedures from an FPE for grounding and bonding activities. Training records maintained in the Re-Fueler Annual Report shall include evidence of training in grounding and bonding. 6. Spill Prevention. Operators shall exercise due care to prevent spillage of fuel, including avoiding the filling of tanks to the point where they could overflow from heat expansion. Operators shall file a written copy of a Spill Prevention Control and Countermeasure Plan ("SPCC"), approved by the Fire Marshal and maintained by the Airport Manager. Operators shall make immediate notification to the Petaluma Fire Department by calling 91 1 in the event of any fuel leaks or spills, regardless of the amount. The Airport Manager shall also be notified of any leakage or spills promptly upon the occurrence, or Operators' subsequent discovery of, ar.y leakage or spills. Operators shall be responsible for cleanup and removal of all fuel leakage or spills caused by Operators, at Tenant's sole expense, under the supervision and approval of the Petaluma Fire Department, and/or any other regulatory agency with jurisdiction. Failure to report a spill or release of hazardous materials may result in significant fines and/or legal action. Training. Operators shall complete an approved training program developed and designated by an Approved Inspector at Tenant's or Operators' expense. The Approved Inspector will compile all documents and training plans, and review all Fire Code-related requirements with respect to Tenant's operation, and certify that Tenant and Operator(s) are in compliance with all Applicable Laws. The training program must be Resolution No. 2010-179 N.C.S. Page 7 submitted for approval by the FPE and receive concurrence from the Fire Department. No person shall fuel or de-fuel an aircraft prior to completion of training and submission of written evidence of such completion to the Airport Manager. Copies of all training records shall be maintained by the Airport Manager and be subject to review by the FPE and/or the Fire Marshal. 8. Indemnification. To the fullest extent allowed by law, Operators shall indemnify, defend (with counsel approved by City) and hold harmless the City, Airport, and their respective officials, agents, officers, and employees from and against any and all losses, liabilities, expenses, claims, demands, liens, penalties, costs (including costs of defense), suits, damages of every kind, nature and description, reasonable attorneys' fees, costs or expenses directly or indirectly arising from Operators' use of the Airport, except to the extent such claims arise as a result of the sole negligence or willful misconduct of the City or Airport. This hold harmless and indemnification clause shall survive the termination of Tenant's lease. nsurance. Compliance with the Airport Self-Refueling Insurance Requirements ("Insurance Requirements") attached hereto as Attachment A shall be required from every Tenant. City reserves the right to require additional forms and amounts of insurance, and to make such other modifications to the Insurance Requirements, as the City Risk Manager deems appropriate, upon ninety (90) days notice to Tenant. 10. Metering and Fuel Flowage Fees. The fuel flowage fee shall be $0.24 per gallon on the net gallons delivered. This rate will be included in Tenant's Self-Fueling Agreement. Upon a fuel delivery, an invoice will be generated by the Finance Department which will be due upon receipt. City reserves the right to increase fees as necessary to cover its costs, upon thirty (30) days notice to Tenant. 1 1. DOT Approval. All fueling vehicles must meet or exceed minimum California Department of Transportation ("DOT") and United States Department of Transportation ("U.S. DOT") requirements for operation on public highways. Operators shall be responsible for ensuring that such vehicles meet all such DOT and U.S. DOT requirements. 12. Parking and Storage of Fuel Vehicles. Parking and storage of fuel vehicles are only permitted in areas approved by the Airport Manager. All parking and storage areas shall contain a fuel spill containment area in compliance with all state and local laws. The California Fire Code ("CFC"), Chapter 27, Sectioh 2704.2.2.4, defines storage requirements for outdoor aboveground storage tanks as "Secondary Containment" for outdoor storage areas and requires that Secondary Containment be designed to contain a spill from the largest individual vessel. If the area is open to rainfall, Secondary Containment shall be designed to include the volume of a 24-hour rainfall as determined by a 25-year-storm, and provisions shall be made to drain accumulations of groundwater and rainwater. Fuel trucks may not be parked in any hangar, tie-down area or Airport parking lot. Construction of the Secondary Containment area shall be completed and approved by the Fire Marshal prior to commencement of self-fueling operations. An Approved Inspector will be required to evaluate construction and capacity of Secondary Containment storage. Engineered plans must be submitted to the Fire Marshal's Office for review and approval. Open outdoor Secondary Containment will be considered, but may not be allowed, depending on environmental conditions and/or sensitive receptors. Certain storage locations may not be feasible if they present a greater risk of release. 13. Fuel Sales Prohibited. Fuel sales or dispensing of fuel by any self-fueling Operators to any aircraft other than the applicable Tenant's aircraft is prohibited. 14. Other Safety Measures. Resolution No. 2010-179 N.C.S. Page 8 A. No aircraft shall be fueled with the engine running (hot-fueling) unless Operator has obtained prior written authorization from the Airport Manager. No Operator shall start the engine of any aircraft when there is gasoline on the ground under the aircraft. B. No person shall smoke or use any material or equipment that is likely to cause a spark or ignition within. fifty (SO) feet of any fueling or de-fueling operations., pursuant to Section 16.24.020 of the City Municipal Code. C. Operators shall treat all fuel with due caution and circumspection with regard to the rights and safety of others and so as not to endanger persons or property. D. No person shall use any material likely to cause a static discharge during fueling or de-fueling of aircraft. E. Operators shall ensure that adequate fire extinguishers are within ready reach of Operators or any other person engaged in fueling and de-fueling operations at all times. F. Operators shall ensure that all fueling activities cease when lightning discharges occur within five (5) miles of the Airport. G. Operators involved in fueling operations shall ensure that the aircraft's parking brake is set, at least one aircraft wheel is chocked, or the aircraft is secured to the ground by the two wing tie-down points. 1 S. Enforcement. City retains the right to cancel any right to self-fuel in response to any violation of these Regulations or aSelf-Fueling Agreement. 16. Amendment. These Regulations may be amended from time to time by the City. Resolution No. 2010-179 N.C.S. Page 9 ATTACHMENT A To Regulations for Self-Fueling Tenants of the Petaluma Municipal Airport AIRPORT SELF-REFUELING INSURANCE REQUIREMENTS Lessee's performance of the services under this Agreement shall not commence until Lessee shall have obtained all insurance required under this paragraph and such insurance shall have been approved by the City Attorney as to form and the Risk Manager as to carrier and sufficiency. All requirements herein provided shall appear either in the body of the insurance policies or as endorsements and shall specifically bind the insurance carrier. Lessee shall procure and maintain for the duration of the contract all necessary insurance against claims now and in the future for injuries to persons or damages to property which may arise from or in connection with the performance of the Services by the Lessee, the Lessee's agents, representatives, employees or subcontractors. A. Minimum Scope of Insurance Coverage shall be at least as broad as: 1. Insurance Services Office Commercial General Liability coverage: a. Personal injury; b. Contractual liability. c. Pollution Liability Coverage 2. Insurance Services Office form covering Automobile Liability, code 1 (any auto). Pollution Liability Coverage during transport, operation and storage of such vehicles and trailers. Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance. Such other insurance coverages and limits as may be required by the City. B. Minimum Limits of Insurance Lessee shall maintain limits no less than: 1. General Liability: $2,000,000 per occurrence/incident for bodily injury, personal injury property damage and pollution liability. If Commercial General Liability Insurance or other form with a general aggregate liability is used, either the general aggregate limit shall apply separately to this Agreement or the general aggregate limit shall be twice the required occurrence limit. 2. Automobile Liability: $2,000,000 per accident/incident for bodily injury, property damage and pollution liability. 3. Employer's Liability: Bodily Injury by Accident - $1,000,000 each accident. Bodily Injury by Disease - $1,000,000 policy limit. Bodily Injury by Disease - $1,000,000 each employee. 4. Such other insurance coverages and limits as may be required by the City. Resolution No. 2010-179 N.C.S. Page IO C. 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 shall reduce or eliminate such deductibles or .self-insured retentions as respects the City, its officers, officials, employees, and volunteers; or the Lessee shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. D. Other Insurance Provisions The required general liability and automobile policies are to contain, or be endorsed to contain the following provisions: 1. The City, its officers, officials, employees, agents and volunteers are to be covered as Additional Insureds as respects: liability arising out of activities performed by or on behalf of the Lessee; products and completed operations of the Lessee; premises owned, occupied or used by the Lessee; or automobiles owned, leased, hired or borrowed by the Lessee. The coverage shall contain no special limitations on the scope of protection afforded to the City, its officers, officials, employees, agents or volunteers. 2. For any claims related to this project, the Lessee's insurance coverage shall be primary insurance as respects the City, its officers, officials, employees, agents and volunteers: Any insurance or self-insurance maintained by the City, its officers, officials, employees, agents or volunteers shall be excess of the Lessee's insurance and shall not contribute with it. 3. Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to the City, its officers, officials, employees, agents or volunteers. 4. The Lessee's insurance shall apply separately to each insured against whom claim is made or suit is brought except, with respect to the limits of the insurer's liability. 5. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits except after thirty X30) days' prior written. notice by certified mail, return receipt requested, has been given to the City. 6. Lessee agrees to waive subrogation rights against the City regardless of the applicability of any insurance proceeds, and to require all contractors, subcontractors or others involved in any way with the Services to do likewise. E. Acceptability of Insurers Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A:VII. Verification of Coverage Lessee shall furnish the City with original endorsements effecting coverage required by this clause. The endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All endorsements are to be received and approved by the City before the Services commences. 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