HomeMy WebLinkAboutA6016 - SFPP, LPPIPELINE INSPECTION AGREEMENT
This IPELINE INSPECTION AGREEMENT (this "Agreement') is made and entered
into this i day of Q(,C . , 2010 (the "Effective Date"), by and between the City of
Palm Springs ("The Agency") and SFPP, L.P. ("SFPP"), with reference to the following facts:
A. WHEREAS, SFPP owns, operates and maintains one 22" petroleum product pipeline
and related appurtenances (the "Pipeline") located in the right of way of the Union Pacific
Railroad, San Bernardino County, California.
B. WHEREAS, Agency is planning to construct an overpass at Palm Drive/ Gene Autry
Trail and Union Pacific Railroad intersection (the "Project").
C WHEREAS, the construction of the Project will require inspection of the Pipeline, and will
therefore require SFPP to provide pipeline engineering services (the "Engineering Activities") to
review Agency's plans for the Project and coordinate with Agency during the progress of the
Project.
D WHEREAS, Agency and SFPP desire to enter into an agreement whereby the Agency
agrees to reimburse SFPP and SFPP agrees to provide, itself or through its consultants and
contractors, certain pipeline inspection services (the "Services");
NOW, THEREFORE, in consideration of the terms and conditions contained herein,
along with other good and valuable consideration, the sufficiency of which is hereby
acknowledged, SFPP and Agency hereby agree as follows:
1. Agency shall provide SFPP with at least 10 days written notice prior to
performing any construction activities in the Subject Property. If any activities to be
undertaken by Agency require any sampling, boring, excavation, ditching or other
disruption of the soil or subsurface of the Subject Property, Agency shall obtain SFPP's
written approval prior to commencing any such activity. Upon receipt of notice from
Agency, SFPP shall coordinate with Agency to provide the Services during the period of time
when Agency is performing construction activities near the pipeline easement in the Subject
Property. Notices shall be delivered by courier, overnight mail, or certified mail to the attention
of Kinder Morgan Area Manager, Bill Toepfer, Kinder Morgan, 2051 E. Slover, Bloomington, CA
92316, (909) 873-5152.
2. Agency shall pay SFPP the actual cost incurred by SFPP in performance of the
Services, plus SFPP's normal additives for reimbursable projects (the "Actual Cost'). SFPP
estimates the cost of such Services, including additives shall be $35,000.00 (the "Estimated
Cost') , which includes but is not limited to: (i) consultant and contractor charges, (ii) equipment
and materials, (iii) SFPP labor, (iv) engineering (including 42% for labor additives), and (v)
19.4% for administrative overhead costs.
3. On or before the Effective Date, Agency shall deliver payment to SFPP in the
amount of the Estimated Cost. Such payment must be received by SFPP prior to the
performance of any Services under this Agreement. When the final accounting of the Actual
Cost of the Services performed by SFPP is completed, SFPP will submit an itemized billing to
Agency for review, together with either: (i) an invoice, to the extent the Actual Cost exceeds the
Estimated Cost; (ii) a check from SFPP, to the extent the Estimated Cost exceeds the Actual
Cost. If the Actual Cost exceeds the Estimated Cost, Agency shall pay SFPP the excess
amount within 30 days after receiving such invoice from SFPP. SFPP shall maintain records for
3 years of the actual costs incurred and charged or allocated in the performance of the Services
in accordance with generally accepted accounting principles.
4. In the event that the inspection time exceeds two months, Agency shall forward
an additional payment of $15,000 at the end of the first month and each succeeding month to
cover the next month's estimated inspection cost until the construction activities impacting the
subject facilities are completed.
5. To the extent permitted by applicable law, Agency agrees to release, defend, and
to protect, indemnify and hold harmless SFPP, its parent, affiliates, and subsidiaries, and its and
their respective directors, officers, agents and employees, from every kind or character of
damages, losses, liabilities, expenses, demands or claims, including any and all costs and fees
arising out of litigation or settlement of any claims (collectively, "Losses"), to the extent the
Losses are caused by, arise from or relate to, directly or indirectly, the negligence, recklessness
or willful misconduct of Agency, its agents, employees in connection with this Agreement or the
Subject Property. Agency further agrees that it shall pay, in proportion to its obligation pursuant
to this Section 5, all damages, costs and expenses (including attorneys' fees) in connection
therewith or any matter resulting therefrom. Agency shall not settle any such action or suit
without SFPP'S prior written consent. This indemnification obligation shall survive expiration or
termination of this agreement.
To the extent permitted by applicable law, SFPP, L.P., Kinder Morgan Operating L.P.
"D", Kinder Morgan G.P., Inc., and Kinder Morgan Management, LLC (collectively and
individually, for purposes of this paragraph, "SFPP") agree to release, defend, and to protect,
indemnify and hold harmless Agency, its affiliates, and its and their respective directors,
officers, agents and employees, from every kind or character of damages, losses, liabilities,
expenses, demands or claims, including any and all costs and fees arising out of litigation or
settlement of any claims (collectively, "Losses"), to the extent the Losses are caused by, arise
from or relate to, directly or indirectly, the negligence, recklessness or willful misconduct of
SFPP, its agents, employees in connection with this Agreement or the Subject Property. SFPP
further agrees that it shall pay, in proportion to its obligation pursuant to this Section 5, all
damages, costs and expenses (including attorneys' fees) in connection therewith or any matter
resulting therefrom. SFPP shall not settle any such action or suit without Agency's prior written
consent. This indemnification obligation shall survive expiration or termination of this
agreement.
UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR
ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES
6. This Agreement contains the entire agreement between Agency and SFPP with
respect to the subject matter hereto.
[Signatures on the following page.]
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the dates
stated below.
"CITY"
City of Palm Springs
Date: By:
David H. Ready
City Manager
APPROVED AS TO FORM: ATTEST
By: by- -
Dougl s t. Holland, ames Thompson,
City Attorney City Clerk
SFPP, L.P.,
r,/BYCffYCOUNCII
R•C, . fi(o016
By: Kinder Morgan Operating L.P. T", its general partner
By: Kinder Morgan G.P., Inc., its general partner
By: Kinder Morgan Management, LLC, the delegate of Kinder Morgan G.P., Inc.
'0" _.sue