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RECORDING REQUESTED BY AND WHEN
RECORDED RETURN TO:
City of Patterson
P.O. Box 667
1 Plaza
Patterson, California 95363
Attention: City Clerk
Space Above This Line Reserved for Recorder’s Use.
Exempt from Recording Fees. (Government Code
sections 6103 and 27383).
ELECTRIC VEHICLE CHARGING STATION
LICENSE AGREEMENT
This Electric Vehicle Charging Station License Agreement (“Agreement”) is entered into as of the __ day of _______, 2022 (“Agreement Date”) by and between the City of Patterson, a political subdivision of the State of California ("CITY") and the Turlock Irrigation District, a California irrigation district ("TID").
RECITALS
A. CITY is the fee simple owner of certain real property located at 1033 W. Las Palmas (the “Property”), as more specifically described in Exhibit A attached hereto.
B. TID is the electrical service provider within TID’s electrical service area, which includes CITY limits, and TID has undertaken to install, operate and maintain various electrical vehicle charging stations.
C. The parties recognize the mutual benefit of having TID install, maintain and operate electric vehicle recharging stations on the Property and desire to enter into this Agreement for that purpose.
NOW THEREFORE for and in consideration of the mutual covenants and agreements contained in this Agreement, and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged by the parties, CITY and TID hereby agree as follows:
AGREEMENT
1. Incorporation of Recitals. The Recitals set forth above, and any exhibits referenced herein, are each incorporated into the body of this Agreement as if set forth in full.
2. Grant of License. CITY grants to TID for the Term of this Agreement: (a) an exclusive and irrevocable license to use and occupy a portion of the Property as more {CW115216.7}
specifically described in Exhibit B attached hereto (the “Premises”) for the Purpose, as defined below; and (b) any necessary easements for access and utilities for the Purpose.
3. Purpose. The Premises may be used by TID for any lawful activity in connection with the design, development, construction, installation, maintenance, repair, replacement, removal, security, and operation of electric vehicle chargers and ancillary items, including without limitation, electrical equipment, hardware, software, signage and all supporting equipment and structures (collectively, the “Charging Station”), together with any other uses permitted herein (“Purpose”), subject to the terms and conditions set forth in this Agreement.
4. Term & Termination. The term of this Agreement (as extended or renewed from time to time, the “Term”) shall commence on the Agreement Date and terminate five (5) years from the “Commencement Date”, which shall be the date that the Charging Station is first operational.
TID shall send CITY written notice that the Charging Station is operational within thirty (30) days of the Commencement Date.
5. Renewal. Provided TID is not in breach of this Agreement, or the Agreement has not been terminated as set forth herein, this Agreement shall automatically renew for successive five (5) year periods under the same terms and conditions.
6. Consideration for License. CITY acknowledges that TID’s obligation to install, maintain and operate the Charging Station will benefit CITY and members of the public who use and access the Property. As such, TID shall not be required to pay CITY any additional consideration for the grant of license contained in this Agreement.
7. Early Termination. This Agreement may be terminated upon thirty (30) days’ written notice to either party without penalty or fee as follows:
(a) in the case of TID, at any time prior to the submission of the installation plans for construction of the Charging Station at the Property, or in the event that TID determines that the construction or continued operation of the Charging Station is impracticable or uneconomical; and
(b) in the case of CITY, in the event the Commencement Date has not occurred within fifteen (15) months following the Agreement Date. The foregoing early termination right shall expire upon the Commencement Date.
8. Termination for Cause. This Agreement may be immediately terminated for cause by either party under either of the following circumstances:
(a) the other party breaches or fails to perform any of its obligations in any material respect, and such breach or failure continues uncured for fifteen (15) business days after receipt of written notice; or
(b) the other party becomes insolvent or proceedings are instituted by or against it under any provision of any federal or state bankruptcy insolvency laws. {CW115216.7}
9. Maintenance of Premises. CITY shall cause the Premises to be maintained in a clean, safe, and orderly condition, to at least the same standard as other areas of the Property. CITY shall have no responsibility to maintain TID’s Charging Station or related TID equipment, hardware, software, or signage. CITY shall not retain any ownership rights in the Charging Station and related TID equipment.
10. Installation Activities.
(a) TID shall, at its sole cost and expense, be responsible for all installation activities (the “Installation Activities”) required to support the operation of the Charging Station and services therewith, including furnishing and installing all materials, equipment, and labor required for the installation of the Charging Station. TID may, at any time during the Term and in its discretion modify, including, without limitation, upgrade, replace, and/or remove all or a portion of the Charging Station (collectively, “Modifications”), whether or not said items are considered fixtures and attachments to the Premises. In the event of a substantial and significant Modification to the Charging Station, TID shall provide at least sixty (60) days prior written notice to CITY.
(b) Before beginning any Installation Activities, TID shall provide a copy of the Charging Station specifications and installation plans to CITY for its approval, which approval shall not be unreasonably delayed or withheld. No work will begin until plans have been approved by CITY. With respect to its Installation Activities, TID shall ensure that it or its designated contractor(s) and/or service providers perform Installation Activities only during times and days acceptable to CITY and in a manner so as not to unreasonably interfere with CITY’s business operations or activities at the Property.
(c) Upon completion of any Installation Activities under this Agreement, CITY shall not retain any ownership rights of the Charging Station and related equipment, hardware, software, signage, and supporting equipment and structures at the Property.
11. TID Electrical Service for Charging Station. Unless otherwise agreed by the parties, TID shall be responsible for the provision of electrical service to the Charging Station. CITY shall reasonably cooperate with TID’s efforts regarding the provision of electrical service to the Charging Station. Neither CITY nor TID has any responsibility or liability for interruption, curtailment, failure, or defect in the supply or character of utilities furnished to the Charging Station, unless the cause of the interruption is covered by the party’s indemnity.
12. Charging Services, Operation and Maintenance. TID’s network on the Charging Station shall be accessible to TID’s subscribers, customers, agents, employees, contractors, vendors, guests, and invitees, who shall be charged in amounts reasonably determined by TID, which may change from time to time in TID’s sole discretion. TID shall provide maintenance services to ensure all equipment is properly checked, tested, and activated for safe and proper {CW115216.7}
operation. TID shall not be responsible for enforcement of laws relating to parking or similar codes for the operation of motor vehicles.
13. Access to Property. The Property is a public parking lot, which shall allow the public access to the Premises at all times during the Term of this Agreement, except during times at which CITY must close the parking lot for general operating hours, maintenance, safety, special events, and other unforeseen reasons in the discretion of CITY. CITY shall use best efforts to notify TID at least forty-eight (48) hours in advance of such a closure. Subject to all other provisions and obligations of this Agreement, TID and its employees, contractors, and vendors may access the Property and the Premises to maintain, inspect, repair, upgrade, or replace any portion of the Charging Station.
14. Signage and Striping. Subject to CITY’s prior approval, TID may paint, place, erect, or project signage, marks, or advertising devices in, on, about, or around the Premises at TID’s sole cost and subject to applicable laws and regulations. At no time may CITY place any signage on TID’s property. TID shall install electric vehicle parking stall pavement striping and markings per the plans approved by the CITY. All signage and pavement markings must be consistent with industry standards for electric vehicle parking, CITY requirements, and State and Federal guidelines. TID shall furnish and install all materials, equipment, and labor for the Charging Station signage and pavement markings.
15. Promotional Activities. During the Term of the Agreement, the parties may promote the availability of the Charging Station through traditional and/or electronic media, including providing the address to the Property and a description of the Charging Station. No party shall use the other party’s trade or service marks, logos, or other proprietary materials without the prior written consent of the other party.
16. Restoration of Premises. Upon the expiration of the Term, or other termination of this Agreement, TID shall remove the Charging Station and all TID’s other property from the Premises and Property within one hundred twenty (120) days. TID shall return the Premises and the Property to its original condition prior to the Agreement Date, to the extent TID’s work has damaged or altered the Property, reasonable wear and tear excepted. These obligations shall survive the termination of this Agreement and shall not be excused for any reason.
17. Indemnity. This Agreement is made upon the express condition that TID shall indemnify, defend, keep, and save harmless CITY, and its directors, officers, agents, and employees against any and all suits, claims, or actions arising out of any injury or injuries to, or death or deaths of, persons or damage to third party property that may occur, or that may be alleged to have occurred, to the extent caused by TID’s use of the Property and/or Premises or the negligent acts or omissions of TID, its agents, employees or contractors, except where caused by the gross negligence or willful misconduct of CITY, its employees, contractors, or agents.
18. Insurance.
(a) Minimum Coverage. TID shall acquire and maintain Workers’ Compensation, commercial general liability, and owned and non-owned and hired automobile liability insurance {CW115216.7}
coverage relating to TID’s use of the Premises. The minimum amounts of coverage corresponding to the aforesaid categories of insurance per insurable event, shall be as follows:
Insurance Category Minimum Limits
Workers’ Compensation statutory minimum
Commercial General Liability $1,000,000 per occurrence and $2,000,000 for bodily injury, personal injury and
property damage
Automobile Liability $1,000,000 per accident for bodily injury and property damage (coverage required to
the extent applicable to TID’s vehicle usage
in performing services herein)
(b) Certificates of Insurance and Required Endorsements. Concurrently with the execution of this Agreement, TID shall furnish CITY with certificates and copies of information or declaration pages of the insurance required hereunder and, with respect to evidence of commercial general liability and automobile liability insurance coverage, the following original endorsements:
(i) Precluding cancellation or reduction in per occurrence limits before the expiration of thirty (30) days (10 days for nonpayment) after CITY shall have received written notification of cancellation in coverage or reduction in per occurrence limits by first class mail; (ii) Naming the CITY, its Council, officers, boards, commissions, employees, and agents, as additional insureds; and
(iii) Providing that TID’s insurance coverage shall be primary insurance with respect to CITY, and any insurance or self-insurance maintained by CITY for itself shall be in excess of TID’s insurance and not contributory with it. (c) Umbrella Coverage and Self-Insured Retentions. The limits of insurance required in this agreement may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of CITY, to the extent required by this Agreement, before the CITY’s insurance or self-insurance may be called upon to protect CITY as a named Insured. All self-insured retentions (“SIR”) must be disclosed to CITY for approval and shall not reduce the limits of liability coverage. Policies containing a SIR provision shall provide or be endorsed to provide that the SIR may be satisfied by either the named TID/Named Insured or CITY.
19. Representations, Warranties, and Covenants. TID and CITY each hereby represents and warrants to the other that, as of the Agreement Date: (a) it has all necessary power and authority to execute, deliver, and perform its obligations hereunder; (b) the execution, delivery, {CW115216.7}
and performance of the Agreement have been duly authorized by all necessary actors and none of the Agreement’s provisions violate any term or condition of its governing documents, contracts to which it is a party, or any law, regulation, order, or other applicable legal determination; (c) there is no pending or known threatened litigation or proceeding that may adversely affect its ability to perform the Agreement; (d) it is duly organized and validly existing under the laws of the jurisdiction of its organization; (e) the Agreement constitutes a legal, valid, and binding obligation, except as enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting creditors’ rights and general principle of equity; and (f) at all times during the Term, it will comply with all applicable Federal, State, and local laws, rules, and regulations (including, without limitation, all zoning ordinances and building codes) in performing its obligations under the Agreement.
20. Notice. Any notice provided or permitted to be given under this Agreement must be in writing and be served either by (i) deposit in the mail, addressed to the party to be notified, postage prepaid, and registered or certified, with a return receipt requested, or (ii) deposit with an internationally-recognized overnight delivery carrier, with notice of delivery to the recipient party, or (iii) by email. Notice given by registered or certified mail or overnight carrier shall be deemed delivered and effective on the date of delivery shown on the return receipt or proof of receipt. If given by email, such notice or communication shall be deemed to have been received based on the date delivered as shown on the sent email. For purposes of notice the addresses of the parties shall be as set forth below. Each party may change its address for notice by giving notice thereof to the other party.
If to CITY: City of Patterson
Attn: City Manager
1 Plaza
Patterson, CA 95363
Email: [email protected]
with copy to: City of Patterson
Attn: Public Works Director
1 Plaza
Patterson, CA 95363
Email: [email protected]
If to TID: Turlock Irrigation District
Attn: Josh Weimer
P.O. Box 949
Turlock, CA 95381
Email:
21. Property Rights; Assignment. This Agreement is binding on and inures to the benefit of the parties and their respective heirs, successors, assigns, and personal representatives. In the event the Premises is transferred, or CITY ceases to have the requisite level of control over the Premises necessary to fulfill its obligations under this Agreement (each, a “Transfer Event”), CITY shall assign its rights and obligations under this Agreement to the person or entity which {CW115216.7}
would be able to comply with CITY’s obligations following such Transfer Event. Further, CITY agrees that any such Transfer Event shall not affect, terminate, or disturb TID's right to use of the Premises under the terms of this Agreement or any of TID's other rights under this Agreement, so long as TID is not then in default under any of the terms, covenants, or conditions of this Agreement.
22. Casualty and Condemnation. If any portion of the Property is damaged by fire or other casualty in a manner that adversely affects TID’s use of the Premises, then either party may, within thirty (30) days of the date of such fire or other casualty, elect to terminate the Agreement by written notice to the other party. If any portion of the Property is condemned or taken in any manner for a public or quasi-public use that could adversely affect TID’s use of the Premises, then TID may elect to terminate the Agreement effective as of the date title to the condemned portion of the Property is transferred to the condemning authority.
23. No Agency Relationship. Nothing in this Agreement shall be deemed or construed to create a joint venture, partnership, fiduciary, or agency relationship between the parties for any purpose, and the employees of one party shall not be deemed to be the employees of the other party. Except as otherwise stated in this Agreement, neither party has any right to act on behalf of the other, nor represent that it has such right or authority.
24. Validity. The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement. The Agreement shall be construed and deemed reformed to the extent necessary to render valid such term and the rights and obligations of the parties shall be enforced accordingly.
25. Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of the State of California without giving effect to conflict of law rules. Venue shall be in Stanislaus County, State of California.
26. No Waiver. No waiver by CITY or TID of any provision hereof shall be deemed a waiver of any other provision hereof or of any subsequent breach by CITY or TID of the same or any other provision. CITY’s consent to, or approval of any act shall not be deemed to render unnecessary the obtaining of CITY’s consent to or approval of any subsequent act by TID.
27. Remedies. The rights and remedies provided by this Agreement are cumulative, and the use of any right or remedy by any party does not preclude or waive its right to use any or all other remedies. These rights and remedies are given in addition to any other rights a party may have under any applicable law, in equity or otherwise.
28. Force Majeure. Neither party is responsible for any delay or failure in performance of any part of this Agreement to the extent that delay or failure is caused by fire, flood, explosion, war, embargo, government requirement, civil or military authority, act of God, act or omission of carriers or other similar causes beyond the party’s control.
29. No Third-Party Beneficiaries. This Agreement does not confer any rights or remedies on any person other than the parties and their respective successors and permitted assigns. {CW115216.7}
30. Integration; Amendments. This Agreement contains all agreements, promises, and understandings between the parties, and there are no verbal or oral agreements, promises, or understandings between the parties. Any amendment, modification, or other change to this Agreement shall be ineffective unless made in a writing signed by the parties hereto.
31. Counterparts. This Agreement may be executed in any number of counterparts with the same effect as if all the parties had signed the same document.
32. Construction. All documents or items attached to, or referred in, this Agreement are incorporated into this Agreement as fully as if stated within the body of this Agreement. Each party has cooperated in the drafting, negotiation, and preparation of this Agreement and nothing herein shall be construed against either party on the basis of that party being the drafter of such language.
33. Recording of Agreement. TID may record this Agreement with the Stanislaus County Recorder.
IN WITNESS WHEREOF, this Agreement is executed to be effective as of the Agreement Date.
CITY OF PATTERSON,
a political subdivision of the State of California:
By: _____________________________________
Ken Irwin, City Manager
Date: ____________________________________
TURLOCK IRRIGATION DISTRICT,
a California irrigation district:
By: _____________________________________
Print: ____________________________________
Title: ____________________________________
Date: ____________________________________
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EXHIBIT A
Legal Description of Property
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EXHIBIT B
Description of the Premises