Piedmont City Council
August 19, 2024

City of Piedmont

COUNCIL AGENDA REPORT
DATE: August 19, 2024
TO: Mayor and Council
FROM: Rosanna Bayon Moore, City Administrator
SUBJECT: Consideration of Approval of the First Amendment to the Agreement with Ava Community Energy (formerly known as East Bay Community Energy) for the Installation of Electric Vehicle Charging Stations on Magnolia Avenue and Authorization of the City Administrator to Execute Related Agreements.

RECOMMENDATION
By motion, approve the First Amendment to the Agreement with Ava Community Energy for the installation of Electric Vehicle charging stations on Magnolia Avenue and authorize the City Administrator to Execute Related Agreements in substantially the same form as attached.

BACKGROUND
On October 18, 2021, the City Council approved a Charging Station License Agreement (SLA) with Ava Community Energy (formerly East Bay Community Energy, hereby referred to as Ava) for the installation of four publicly accessible direct current (DC) fast Electric Vehicle (EV) charging stations on Magnolia Avenue near the Exedra.

Council also approved a 90-minute parking restriction for the five on-street parking spaces by the EV chargers, including one space to account for American with Disabilities Act (ADA) requirements, in addition to the appropriation of up to $75,000 from the General Fund to supplement costs above Ava’s maximum allocation of $306,660 (Attachment 2).

On May 16, 2022, City staff presented a report to Council with a conceptual design plan, prepared by Ava and recommended for approval by the Park Commission on May 4, 2022 (Attachment 3).

Council subsequently approved an additional $30,000 from the Facilities Capital Fund to account for an increased estimated total project cost associated with the conceptual design.

DISCUSSION
In May 2024, Ava and Calibrant California II, LLC (Calibrant), executed a Master Services Agreement (MSA) that allows Calibrant to install, own, and operate the EV charging stations.

To account for the MSA, Ava prepared an amendment to the Charging Station License Agreement with the City of Piedmont, as seen in Attachment 1. This amendment allows Ava the right to execute a Sublicense Agreement between Ava and Calibrant for the EV charging stations and parking spaces in the City of Piedmont. The previously approved agreement does not include a provision that allows Ava to sublicense the ownership and management of Piedmont’s charging stations.

Because an amendment is required, Ava also updated and acknowledged the following elements in the Amendment to the Charging Station License Agreement.

1. Ava’s name change from East Bay Community Energy and address change;

2. Staff contact information,

3. The City of Piedmont’s appropriation of additional funds as approved by the Council on October 18, 2021 and May 16, 2022; and

4. That the project will be subject to the Public Records Act.

Along with those updates, Exhibit A of the Amendment to the Charging Station License Agreement (Attachment 1) also reflects an updated conceptual design prepared by Calibrant in 2024 for the five charging spaces on Magnolia Avenue. A detailed, 90% design drawing will be submitted with permit applications at a later date.

While the updated design is consistent with the approved 2022 concept, it incorporates some noteworthy changes that reflect input from City staff and Calibrant in 2024. The first change is that the ADA parking space is moved from the eastern edge of allotted spaces to the western edge. The second is that the ADA space is reoriented to be angled, similar to existing parking spaces, and not perpendicular as was originally designed. City staff and Calibrant recommended these conceptual changes based on the following considerations:
• Moving the curb cut required to accommodate the ADA to minimize its impact on the park and the Exedra.
• Ensuring sufficient space to accommodate backing out of the ADA space safely, which may not have been possible with the 2022 concept.
• Moving the ADA space to a location of the street with a less pronounced crown, requiring less grading to meet ADA requirements.
• Integrating the required curb cut for the ADA space into the existing north-south pathway into the playground area of the park.

CONCLUSION AND NEXT STEPS
The MSA between Ava and Calibrant represented the achievement of a key milestone to install the City of Piedmont’s first publicly available EV charging stations. These charging stations provide critical infrastructure to the Piedmont community, City of Piedmont staff, and Piedmont Park visitors choosing to use EVs. They also can incentivize further uptake of fully electric and plug-in hybrid electric vehicles represent 10% and 4% of total vehicles registered, respectively, in the City of Piedmont according to 2024 data from the California Department of Motor Vehicles. Electric vehicles significantly reduce greenhouse gas emissions, and advance the City’s climate action goal to achieve carbon neutrality by 2045, as well as provide other local air quality benefits.

Agenda Report Page 2
If the Council authorizes the Amendment to the Charging Station License Agreement, Calibrant will move forward with their project schedule, which includes the following target milestones.

1. September 2024: Permitting application with 90% design drawing.

2. December 2024 - February 2025: Road and site construction

3. March - April 2025: PG&E electrical construction.

4. May 2025: EV chargers operational.

FISCAL IMPACT
The Amendment to the Charging Station License Agreement does not seek additional funds from the City to move forward with design and construction of the EV charging station system.

However, the Amendment does memorialize the allocation of $75,000 and $30,000 that the City Council approved to supplement additional costs associated with concept design on October 18, 2021 and May 16, 2022. Such amount is included in the FY 2024-25 Approved Budget in the Facilities Capital Fund.

ATTACHMENTS
Pages
1 4 – 18 2024 First Amendment to Charging Station License Agreement 2 19 – 46 October 18, 2021 Staff Report to Council entitled Authorization for the City Administrator to Sign an Agreement with East Bay Community Energy for the Installation of Electric Vehicle Charging Stations on Magnolia Avenue 3 46 – 49 May 16, 2022 Staff Report to Council entitled Consideration of an Appropriation of an Additional $30,000 to Fund the Electric Vehicle Charing Stations on Magnolia Avenue and Associated Civil Improvements Required to Meet American with Disabilities Act Requirements
By:

Daniel Gonzales, Director of Public Works
Deniz Ergun, Sustainability Program Manager
Agenda Report Page 3

FIRST AMENDMENT TO CHARGING STATION LICENSE AGREEMENT
This Amendment (the “Amendment”) to the Agreement (as defined below), is dated as of _________________ ___, 2024 (the “Amendment Effective Date”), between Ava Community Energy, a California joint powers authority (formerly known as the East Bay Community Energy Authority) (“Ava”), and the City of Piedmont, a California municipal corporation (“Host”). Ava and Host are each a “Party” and together the “Parties”.

RECITALS
A. The Parties entered into that certain Charging Station License Agreement, dated as of January 6, 2022 (as may be further amended, amended and restated, supplemented or otherwise modified from time to time in accordance with the terms thereof, the “Agreement”).

B. On October 24, 2023, Ava changed its name from the East Bay Community Energy Authority to Ava Community Energy.

C. On October 18, 2021, Host’s City Council passed Resolution No. 80-2021 appropriating up to Seventy-Five Thousand Dollars ($75,000) from Host’s General Fund to cover costs exceeding the amount that Ava allotted for the installation and maintenance of electrical vehicle chargers at the Premises as facilitated by the Agreement (the “Project”).

D. On May 16, 2022, Host’s City Council passed Resolution No. 38-2022 appropriating Thirty Thousand Dollars ($30,000) from Host’s Facilities Maintenance Fund to fund the Project and associated civil improvements required to meet requirements of the Americans with Disabilities Act (the “ADA Improvements”).

E. Ava desires to sublicense the Property and Host desires to consent to and approve of such sublicense.

F. Now, the Parties wish to (i) amend the Agreement as set forth herein; (ii) memorialize Host’s appropriation of funds for the Project and ADA Improvements; and (iii) document Host’s consent to and approval of Ava’s sublicense of the Premises.

AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1. Definitions. Capitalized terms used and not defined in this Amendment have the respective meanings assigned to them in the Agreement.

2. Amendments to the Agreement.
(a) All references to “the East Bay Community Energy Authority” are hereby deleted and replaced with “Ava Community Energy”.
(b) All references to “EBCE” are hereby deleted and replaced with “Ava”. (c) The following language is hereby added at the end of Section 11 (Modification): “Host acknowledges that the EV Charging Systems (as hereinafter defined) shall remain the personal property of Ava (or any third party contracted by Ava that is the legal and beneficial owner of the EV Charging Systems) and shall not attach to or be deemed a part or fixture of the Property. As used herein, “EV Charging Systems” means (i) direct current fast Attachment 1 Agenda Report Page 4
chargers, including the physical cabinet of the electric vehicle charging dispenser and all related components contained within such physical cabinet, along with associated rectifiers and charger port cables and associated materials, connections, and other equipment not contained within such physical cabinet, and (ii) any related equipment and materials that are expected to make such chargers operational, but excluding any electrical infrastructure which shall remain with the Property pursuant to Section 11.1 (Removal).” (d) In Section 11 (Removal), the Section number “11” is hereby deleted and replaced with “11.1” in order to correct a numbering mistake.
(e) In Section 16.a (Notice), the text “[CONTACT INFORMATION]” is hereby deleted and replaced as follows:

To City:

Attention: City of Piedmont
CC: Rosanna Bayon Moore
120 Vista Ave
Piedmont, California 94611
To Ava:

Attention: Ava Community Energy
CC: JP Ross
1999 Harrison Street, Suite 2300
Oakland, California 94612
(f) The following language is hereby added to the end of Section 16.e (Governing Law): “The Parties acknowledge that this Agreement, and any future agreements between the Parties, will be subject to public disclosure under the California Public Records Act.” (g) Exhibit A to the Agreement is hereby deleted in its entirety and replaced with Exhibit A attached hereto as Attachment 1.

3. Appropriation of Funds. The Parties hereby acknowledge and memorialize Host’s commitment of funds for the Project and ADA Improvements in the total amount of One Hundred and Five Thousand Dollars ($105,000), in accordance with Resolution No. 80-2021 and Resolution No. 38-2022.

4. Consent. Notwithstanding anything to the contrary contained in the Agreement, Host hereby consents to and approves: (i) the sublicense of the Premises to Calibrant California II, LLC, a Delaware limited liability company (“Sublicensee”), pursuant to that certain Site Sublicense Agreement to be executed by Sublicensee and Ava in substantially the form attached hereto as Attachment 2 (the “Sublicense Agreement”); and (ii) the terms contained, and the rights granted to Sublicensee, in the Sublicense Agreement. Sublicensee and its successors and assigns are express third-party beneficiaries of this Section 4.

5. Limited Effect. Except as expressly provided in this Amendment, all of the terms and provisions of the Agreement are and will remain in full force and effect and are hereby ratified and confirmed by the Parties. Without limiting the generality of the foregoing, the amendments contained herein will not be construed as an amendment to or waiver of any other provision of the Agreement or as a waiver of or consent to any further or future action on the part of either Party that would require the waiver or consent of the other Party. On and after the Amendment Effective Date, each reference in the Agreement to “this Agreement,” “the Agreement,” “hereunder,” “hereof,” “herein” or words of like import will mean and be a reference to the Agreement as amended by this Amendment.

Attachment 1 Agenda Report Page 5

6. Miscellaneous.
(a) The persons signing below represent and warrant that they have the authority to bind their respective Party, and all necessary approvals to sign on behalf of their respective Party have been obtained.
(b) This Amendment is governed by and construed in accordance with, the laws of the State of California, without regard to the conflict of laws provisions of such State. (c) This Amendment shall inure to the benefit of and be binding upon each of the Parties and each of their respective successors and permitted assigns. (d) The headings in this Amendment are for reference only and do not affect the interpretation of this Amendment.
(e) This Amendment may be executed in counterparts, each of which is deemed an original, but all of which constitutes one and the same agreement. Delivery of an executed counterpart of this Amendment electronically or by facsimile shall be effective as delivery of an original executed counterpart of this Amendment.
(f) This Amendment constitutes the sole and entire agreement between the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.
(g) Each Party shall pay its own costs and expenses in connection with this Amendment (including the fees and expenses of its advisors, accounts and legal counsel). [Signature Page Follows]
Attachment 1 Agenda Report Page 6
Signature Page to Amendment to Charging Station License Agreement IN WITNESS WHEREOF, the Parties have executed this Amendment effective as of the Amendment Effective Date written above.

AVA:

Ava Community Energy, a California joint powers authority By:

Printed Name: Howard Chang
Title: Chief Executive Officer
Approved as to form:

By:

Printed Name: Inder Khalsa
Title: Ava General Counsel
HOST:

City of Piedmont, a California municipal corporation
By:

Printed Name: ___________________________
Title: __________________________________
Attest:

By:

Approved as to form:

By:

Printed Name: Michelle Marchetta Kenyon, City
Attorney
Attachment 1 Agenda Report Page 7
Attachment 1
Exhibit A

PROPERTY AND PREMISES
Magnolia Ave at Highland Ave, Piedmont, CA 94611
I. Site Description
The Site shall include the real property located on Magnolia Avenue at Highland Avenue near the Exedra, as indicated in the Conceptual Design below.

II. Charging Stations and Charging Stalls
Ava plans to install 3 180-kilowatt dual port direct current fast chargers (“DCFC”) in 5 Charging Stalls at the Property. 2 DCFC will be capable of powering 2 Charging Stalls each. Please note, the capacity of the DCFC equipment may change in the final project design.

As applicable, per State of California requirements, 2 of the Charging Stalls will comply with the Americans With Disabilities Act (“ADA”). To accommodate the van accessible ADA requirements, and DCFC equipment requirements generally based on final product selection, 2 additional parking spaces may be needed at the Property (for a total of up to 6 parking spaces).

To accommodate the electrical load of 3 DCFCs at the Property, Ava will bring in a new PG&E metering service at a 350kVA maximum size. Ava costs related to the new electrical service will be assumed by Ava.

The electrical service that powers the Charging Stalls will be Ava’s Renewable 100 electricity product and Attachment 1 Agenda Report Page 8
Ava will be responsible for the meter. City will not pay any costs associated with the electricity consumption from this new meter. A new PG&E transformer will be constructed by PG&E in an area of the Property. Ava will coordinate with PG&E through their Service Planning process, and the City Representative, to confirm this location. A 800 Amp switchboard will be in the property as well.

Through a public procurement process, Ava has selected a vendor who will provide turnkey services from final design, equipment procurement and installation, ongoing operation and maintenance services, and backoffice services (e.g., communications, user account management, billing, reporting, utility interface application, etc.). Ava will coordinate all aspects of the project with the vendor through the term of the agreement, including project design, construction and operations. Ava will keep City updated on a regular cadence of any project design changes, engage City in project construction meetings and provide annual updates per Section 20c.

Attachment 1 Agenda Report Page 9
K&F Draft 1.23.2024
Attachment 2

SITE SUBLICENSE AGREEMENT
This SITE SUBLICENSE AGREEMENT (this “Sublicense”) is made and entered into as of [____], 2024 (the “Sublicense Date”) by and between [____], a [____] (“Provider”), and Ava Community Energy Authority, a California joint powers authority (“Customer” or “Ava”). Each of Provider and Customer is sometimes referred to as a “Party” and collectively as the “Parties.”

RECITALS
WHEREAS, Provider and Ava entered into that certain Electric Vehicle Charging Master Services Agreement, dated [____], 2024 (the “Agreement”), pursuant to which Provider has stated its desire to install, own, and operate an EV Charging System, as more particularly described in the Agreement, at the Project Site, as more particularly described in Exhibit B, and Ava has agreed to sublicense the Project Site to Provider for such purpose; WHEREAS, Ava has entered into that certain Master Site License Agreement with [_____] (the “Site Owner”), dated [____], 2024 (the “Site License Agreement”), pursuant to which Site Owner has licensed to Ava the Project Site so that Ava may contract with third parties to design, develop, construct, install, maintain, repair, replace, operate, and remove direct current fast chargers and ancillary items at the Project Site;
WHEREAS, in order to install, own, and operate the EV Charging System at the Project Site in accordance with the Agreement, Provider requires access to and use of the Project Site pursuant to the terms and conditions set forth herein.

NOW, THEREFORE, in consideration of the promises and the mutual covenants and agreements herein contained, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Provider and Ava hereby agree as follows:

SUBLICENSE

1. DEFINITIONS. Capitalized terms used herein shall have the respective meanings set forth in Exhibit A. Capitalized terms used in this Sublicense and not defined in Exhibit A shall have the meanings ascribed to them in the Agreement.

2. SUBLICENSE. Ava hereby sublicenses to Provider, and Provider hereby sublicenses from Ava during the Sublicense Term (as defined below):

2.1 the Project Site for the limited purpose of satisfying Provider’s obligation as set forth herein and in the Agreement;

2.2 the temporary use of such mutually agreed upon additional space at the Property immediately adjacent to the Project Site, such area to be agreed by the Parties and described in the Site Description in the Notice to Proceed included as Attachment 1 to the Site License Agreement, during the installation, maintenance, repair, replacement, operation, and removal of the EV Charging System on or from the Project Site; and Attachment 1 Agenda Report Page 10
- 2 -

2.3 the non-exclusive right of ingress and egress from a public right-of-way over areas of the Property to and from the Project Site as necessary for Provider to design, develop, construct, install, maintain, repair, replace, operate, and remove the EV Charging System in accordance with the Agreement.

3. TERM. The term of this Sublicense shall commence on the Sublicense Date and, unless terminated pursuant to the terms of this Sublicense and/or the Agreement, shall expire upon the earlier of (i) the Expiration Date or earlier termination of the of the Agreement plus any additional time required for removal of the EV Charging System pursuant to Section 8.3 of the Agreement, or (ii) removal of the Project Site from the Agreement (the “Sublicense Term”).

4. USE.

4.1 Provider shall use the Project Site solely for the following purposes and for no other business or purpose (the “Permitted Uses”):

4.1.1 completing pre-construction activities necessary to satisfy the Full NTP Conditions Precedent applicable to the Project Site;

4.1.2 completing construction, installation, start-up, testing, interconnection, and related activities necessary for Provider to satisfy the COD Conditions Precedent applicable to the Project Site;

4.1.3 operating and maintaining the EV Charging System as set forth in Article 5 of the Agreement; and

4.1.4 removing the EV Charging System consistent with Section 8.3 of the Agreement.

4.2 Provider shall carry out the Permitted Uses in accordance with all applicable laws, rules, codes, and ordinances and in such a manner as will not unreasonably interfere with Site Owner’s use of the Property.

4.3 Without limiting any other provision of this Sublicense, Provider agrees that its obligations under the Agreement and this Sublicense shall be performed in accordance with the Agreement and this Sublicense.

4.4 Except as specifically provided herein, nothing in this Sublicense shall limit Site Host’s ability to maintain and use the Property consistent with its current uses and practices.

5. GOVERNMENTAL APPROVALS. Provider shall acquire and maintain all necessary approvals, permits, and authorizations required by Applicable Law or the Distribution Utility that may be required for the Permitted Uses. Ava shall reasonably cooperate with Provider in obtaining such approvals, permits, and authorizations. Provider understands and acknowledges that Provider’s ability to use the Property and Project Site for the Permitted Uses is expressly contingent upon its obtaining such approvals, permits, and authorizations in accordance with Sections 3.6, 4.1.8, and 4.3.5 of the Agreement.

6. DAMAGE TO PROJECT SITE. Provider shall repair damage to the Property or Project Site caused by Provider or those acting through or on behalf of Provider during the construction, installation, maintenance, operation, replacement, or removal of the EV Charging System. Provider shall indemnify, defend, and hold harmless Ava and Site Host for all liabilities associated with Provider’s use of the Property and Project Site, and such indemnification shall survive termination of this Sublicense.

Attachment 1 Agenda Report Page 11
- 3 -

7. REMOVAL. Provider shall comply with the terms for removal of the EV Charging System consistent with Section 8.3 of the Agreement.

8. EARLY TERMINATION. Ava shall have the right, but not the obligation, to terminate this Sublicense (i) if any portion of the Property is condemned or taken in any manner for a public or quasipublic use that could adversely affect operation of the EV Charging System at the Project Site; or (ii) if Site Host terminates the applicable Site License Agreement or removes the Project Site from the applicable Site License Agreement because Notice to Proceed has not been issued within fifteen (15) months following the later of either the “Effective Date” set forth in the applicable Site License Agreement or the date on which such Project Site was added to the applicable Site License Agreement; or (iii) if any portion of the Property is damaged by fire, earthquake, flood, or other casualty in a manner that could adversely affect operation of the EV Charging System at the Project Site.

9. EVENT OF DEFAULT; REMEDIES.

9.1 An “Event of Default” with respect to a Party (a “Defaulting Party”) shall mean:

9.1.1 such Party has committed a Provider Event of Default or Customer Event of Default, as applicable, under the Agreement and has failed to cure such Provider Event of Default or Customer Event of Default, as applicable, within the relevant cure period set forth in the Agreement; or

9.1.2 such Party breaches any of its obligations under this Sublicense and such breach remains uncured for thirty (30) days following notice of such breach to Customer, or such longer cure period as may be agreed to by the Parties.

9.2 Upon an Event of Default hereunder, the non-Defaulting Party shall have the right, but not the obligation, to (i) suspend performance under this Sublicense, (ii) terminate this Sublicense, (iii) exercise any other right or remedy available at law or in equity, including specific performance or injunctive relief, except to the extent such remedies are expressly limited under this Sublicense or the Agreement.

10. INSURANCE. The insurance provisions set forth in Article 19 of the Agreement are hereby incorporated herein by reference and shall apply in their entirety to this Sublicense.

11. NO LIENS. Provider shall not permit or suffer any Stop Orders, mechanic’s or materialmen’s liens to attach to the Property. A “Stop Order” means the notice and claim procedures for payment available in California Civil Code section 9000, et seq., to laborers, subcontractors, suppliers, material men and other parties identified in California Civil Code 9100 that provide labor or materials to a public project. If such a Stop Order, mechanic’s or materialmen’s lien attaches to the Property, Provider shall remove or bond over such Stop Order or lien at Provider’s sole cost and expense, within twenty (20) days of Provider receiving written notice thereof.

12. LIABILITY AND INDEMNITY. The Parties hereby acknowledge and agree to the indemnifications in Article 18 of the Agreement, and further agree that such provisions shall be applicable to this Sublicense and are hereby incorporated by reference.

13. ASSIGNMENT. This Sublicense shall be binding upon the Parties and their respective successors and permitted assigns. Neither Party shall have the right to assign any of its rights, duties or obligations under this Sublicense without the prior written consent of the other Party, which consent may not be unreasonably withheld or delayed. The foregoing notwithstanding, Customer may assign this Attachment 1 Agenda Report Page 12
- 4 -
Sublicense or any of its rights, duties or obligations under this Sublicense, without the consent of Provider, (i) to any of its Affiliates or (ii) to any third party with a creditworthiness equal to or better than Customer at the time of assignment.

14. DISPUTE RESOLUTION. Any disputes arising under this Sublicense shall be resolved in accordance with the dispute resolution procedures set forth in Section 17.4 of the Agreement.

15. NOTICES. Any notices, request, statements, or payments under this Sublicense shall be made to the addresses and persons specified in Article 16 of the Agreement in accordance with the terms and conditions provided therein.

16. FURTHER ASSURANCES. The Parties hereby acknowledge and agree to the provisions in Section 21.14 of the Agreement, and further agree that such provisions shall be applicable to this Sublicense and are hereby incorporated by reference.

17. GOVERNING LAW. This Sublicense shall be construed in accordance with the laws of the State of California, without regard to its conflict of laws principles.

18. AMENDMENTS. This Sublicense may only be amended, modified or supplemented by an instrument in writing executed by duly authorized representatives of Provider and Ava.

19. INTERPRETATION. The words “herein,” “hereunder,” and “hereof” refer to the provisions of the applicable Sublicense as a whole and not to any particular portion or provision of such Sublicense; “including” means “including, but not limited to”, and other forms of the verb “to include” are to be interpreted similarly; and references to “or” shall be deemed to be disjunctive but not necessarily exclusive (i.e., unless the context dictates otherwise, “or” shall be interpreted to mean “and/or” rather than “either/or”).

20. HEADINGS; EXHIBITS. The headings in this Sublicense are solely for convenience and ease of reference and shall have no effect in interpreting the meaning of any provision of this Sublicense. Any Exhibits referenced within and attached to this Sublicense, including any attachments to the Exhibits, shall be a part of this Sublicense and are incorporate by reference herein.

21. WAIVER. The waiver by either Party of any breach of any term, condition or provision herein contained shall not be deemed to be a waiver of such term, condition or provision, or any subsequent breach of the same, or any other term, condition or provision contained herein. Any such waiver must be in a writing executed by the Party making such waiver.

22. SEVERABILITY. If any part, term or provision of this Sublicense is determined by an arbitrator or court of competent jurisdiction to be invalid, illegal or unenforceable, such determination shall not affect or impair the validity, legality or enforceability of any other part, term or provision of this Sublicense and shall not render this Sublicense unenforceable as a whole. Instead, the part of the Sublicense found to be invalid, unenforceable or illegal shall be amended, modified or interpreted to the extent possible to most closely achieve the intent of the Parties and in the manner closest to the stricken provision.

23. SURVIVAL. Applicable provisions of this Sublicense shall continue in effect after expiration or termination, including early termination, to the extent necessary to enforce or complete the duties, obligations or responsibilities of the Parties arising prior to termination, including any indemnity obligations under Section 12.

Attachment 1 Agenda Report Page 13
- 5 -

24. COUNTERPARTS. This Sublicense may be executed in counterparts, which shall together constitute one and the same agreement. Facsimile or portable document format (“.PDF”) signatures shall have the same effect as original signatures, and each Party consents to the admission in evidence of a facsimile or photocopy of this Sublicense in any court or arbitration proceedings between the Parties. [Signature Page Follows]
Attachment 1 Agenda Report Page 14
K&F Draft 1.22.2024
[Site Sublicense Agreement – Signature Page]
IN WITNESS WHEREOF, the Parties have caused this Site Sublicense Agreement to be duly executed and delivered as of the Sublicense Date.

PROVIDER CUSTOMER
[______] AVA COMMUNITY ENERGY
By: By:

Name: [____] Name: [____]
Title: [____] Title: [____]
Approved as to form:

By:

Name: [____]
Title: [____]
Attachment 1 Agenda Report Page 15
K&F Draft 1.22.2024

EXHIBIT A

DEFINITIONS
“Agreement” has the meaning set forth in the Recitals.
“Applicable Law” means all national, state, local or municipal laws, statutes, codes, acts, treaties, ordinances, orders, judgments, writs, decrees, injunctions, rules, regulations, governmental approvals, licenses, permits, directives, and requirements of all regulatory and other Governmental Authorities. “COD Conditions Precedent” has the has the meaning set forth in the Agreement. “Commercial Operation Date” has the has the meaning set forth in the Agreement. “Customer” has the meaning set forth in the preamble.
“Defaulting Party” has the meaning provided in Section 9.1. “Distribution Utility” shall mean Pacific Gas & Electric, the distribution utility that currently supplies electricity to Customer at the Project Site.
“EV Charging System” has the meaning set forth in the Agreement corresponding to the Project Site. “Event of Default” has the meaning provided in Section 9.1. “Expiration Date” has the has the meaning set forth in the Agreement. “Full NTP Conditions Precedent” has the has the meaning set forth in the Agreement. “Governmental Authorities” means any national, state, regional, municipal or local government, any political subdivision thereof, or any governmental, quasi-governmental, regulatory, judicial or administrative agency, authority, commission, board or similar entity having jurisdiction over the EV Charging System or its operations, the Property, the Project Site or otherwise over any Party. “Limited Development Services” has the has the meaning set forth in the Agreement. “Notice to Proceed” has the has the meaning set forth in the Site License Agreement. “Permitted Uses” has the meaning provided in Section 4.1. “Project Site” means the “Site” specified for the installation of the EV Charging System, as set forth in the Site License Agreement corresponding to the Project Site, as more particularly described in Exhibit B. “Property” has the meaning specified in Exhibit B.
“Provider has the meaning set forth in the preamble.

Attachment 1 Agenda Report Page 16
K&F Draft 1.22.2024
“Site License Agreement” has the meaning set forth in the Recitals. “Site Owner” has the meaning set forth in the Recitals. “Stop Order” has the meaning provided in Section 11.
“Sublicense” has the meaning set forth in the preamble. “Sublicense Date” has the meaning set forth in the preamble. “Sublicense Term” has the meaning provided in Section 3.

Attachment 1 Agenda Report Page 17
K&F Draft 1.23.2024

EXHIBIT B

DESCRIPTION OF PROPERTY AND PROJECT SITE
Attachment 1 Agenda Report Page 18
City of Piedmont

COUNCIL AGENDA REPORT
DATE: October 18, 2021
TO: Mayor and Council
FROM: Sara Lillevand, City Administrator
SUBJECT: Consideration of Authorization for the City Administrator to Sign an Agreement with East Bay Community Energy for the Installation of Electric Vehicle Charging Stations on Magnolia Avenue, Adoption of Associated Parking Restrictions for the Spaces Served by the Electric Vehicle Chargers, Appropriation of up to $75,000 to Fund Possible Costs AERYH EDVW BD\ CRPPXQLW\ EQHUJ\¶V CRVW AOORFDWLRQ, DQG DHWHUPLQDWLRQ that the Project is Exempt from CEQA

RECOMMENDATION
By motion, take the following actions:

1. Authorize the City Administrator to sign an agreement with East Bay Community Energy (EBCE) for the installation of four single-port (or two dual-port) fast Electric Vehicle (EV) charging stations on Magnolia Avenue near the Exedra;

2. Appropriate up to $75,000 IURP WKH GHQHUDO FXQG WR IXQG SRVVLEOH FRVWV DERYH EBCE¶V maximum allocation of $306,660, and authorize the City Administrator to execute any documents necessary to affect changes up to this amount.

3. Authorize the City Administrator, in consultation with the City Attorney, to make minor changes to the agreement to satisfy the needs of the City; and

4. Approve a 90-minute parking restriction for the five on-street parking spaces served by the EV chargers, which includes one space to account for American with Disabilities (ADA) requirements.

5. Determine that the project is exempt from CEQA pursuant to CEQA Guidelines Section 15303, Class 3 (d), New Construction or Conversion of Small Structures

EXECUTIVE SUMMARY
On June 21, 2021, the City Council discussed a plan to install publicly accessible EV fast charging stations in the Civic Center area. The EV fast charging stations proposed during the meeting would serve four existing angled public parking spots next to the tennis courts on Bonita Avenue, near the intersection of Vista Avenue. During the meeting, the City Council raised numerous concerns, including those about the proposed 1-hour parking limit, noise that may arise in the vicinity of the chargers, enforcement of the parking spots, and potential usage of the spots, particularly by Piedmont Unified School District (PUSD) staff. In light of these concerns, the Council continued Attachment 2 Agenda Report Page 19
its consideration of the proposed plan until there was additional clarification about these points.

Particularly, City Council wanted staff to explain:
x Why the proposed four on-street parking spaces on Bonita Avenue were optimal for EV fast charging stations, as opposed to other nearby angled spaces. x Whether the 1-hour parking limit could be extended to 90 minutes and if the parking spaces would be restricted to EVs only, 24 hours, 7 days a week (24/7). x How restrictions for the four parking spaces would be enforced and what the Piedmont PROLFH DHSDUWPHQW¶V UROH ZRXOG EH LQ HQIRUFHPHQW.

The staff report from the June 21, 2021 City Council meeting can be found in Attachment 3 and a recording of the meeting is available at:
https://piedmont.granicus.com/MediaPlayer.php?view_id=3&clip_id=2371 To address concerns raised at the June 21 Council meeting, City staff conferred with EBCE staff and modified the EV fast charging station proposal to include four EV-only fast charging stations on Magnolia Avenue with a 90-minute time allotment.

BACKGROUND
Based on 2020 DMV vehicle registration data, there are nearly 900 plug-in EVs registered in Piedmont. Accordingly, EVs account for ~11% of the vehicles registered in Piedmont. Additional FKDUJLQJ VWDWLRQV DUH QHHGHG WR DFFHOHUDWH SURJUHVV RI WKH CLW\¶V COimate Action Plan target of 50% EV adoption by 2030 and may help to encourage further adoption of EVs.

Location for EV Fast Charging Stations
Multiple locations were evaluated over the last 12 months for project development. Throughout the process, City and EBCE staff worked to address various logistical, engineering, and utilization concerns that were raised to identify an optimal site for the installation of charging stations. Angled parking spaces are optimal for EV fast chargers, as the configuration allows charging cords to reach various charging port locations of different vehicle models (e.g., rear passenger side, front driver side. The CiW\¶V initial examination resulted in the preference of the angled parking spaces on the west side of Bonita Avenue as the location for the chargers. To date, EBCE has expended funds for an engineering contractor to assess the initial technical aspects of the project site (e.g., proximity to PG&E transformers, project layout). EBCE also discussed the Bonita Avenue spaces with their PG&E service planning colleagues, who noted that locating the charging infrastructure at the south end of the block was preferred at this location. However, based on concerns raised at the June 21, 2021 Council meeting as well as proximity to the impending Community Pool construction project, City and EBCE staff explored and other nearby angled spaces for EV fast charging stations.

This exploration resulted in the City and EBCE focusing on EV fast chargers in angled spaces on Magnolia Avenue south of the Exedra (see Attachment 2). This location serves City employees, visitors to City Hall, customers and staff or nearby commercial establishments and houses of worship, residents, and PUSD staff and students at three campuses. Notably, the location also VHUYHV YLVLWRUV WR PLHGPRQW PDUN, WKH CLW\¶V PRVW YLVLWHG SDUN.

Attachment 2 Agenda Report Page 20
To date, EBCE has not expended additional funds for a contractor to assess the Magnolia Avenue site. USRQ WKH CRXQFLO¶V DSSURYDO RI WKLV SURSRVDO, EBCE ZLOO HQJDJH ZLWK WKHLU HQJLQHHULQJ contractor and PG&E to assess the feasibility of the Magnolia Avenue location. If the site is feasible from a technical perspective, EBCE will expend funds to revise the project drawings, VXEPLW D VHUYLFH SODQQLQJ DSSOLFDWLRQ WR PG&E, DQG UHYLVH WKH SURMHFW¶V HQJLQHHULQJ GUDZLQJV based on PG&E input. The installation costs and proximity of electrical sources to the proposed charging stations on location on Magnolia Avenue will not be known until PG&E completes their technical assessment of the site. The Magnolia Avenue site will consist of either 4 single-port EV fast chargers (each 75 kilowatts), each serving one parking space, or 2 dual-port EV fast chargers, each serving two parking spaces. An additional parking space is needed to accommodate one space for accessibility to individuals with disabilities.

The identified spaces on Magnolia Avenue are currently restricted to Construction Vehicles Only and are partially occupied by Construction Mobile Structures due to ongoing Piedmont High School construction. These parking spaces were previously Permit A parking spots. The proposed change in the location of these chargers mitigates noise concerns for residential neighborhoods.

Parking Restrictions, Enforcement and Charging Rates
Following the June 2021 City Council meeting, City and EBCE staff collaborated to address the CRXQFLO¶V FRQFHUQV UHJDUGLQJ parking restrictions. Considering the concern that a 1-hour limit would not be adequate time for an individual to park and move their EV, EBCE agreed to increase the allotted time to a 90-minute limit for each EV only parking space. This time limit provides ample time for an EV driver to charge. It also ensures turnover of the publicly accessible fast chargers so that these assets are highly utilized and available to all EV drivers. The EV only parking spaces will not have permit restrictions.

The cost of the electricity used to charge an EV will be borne by the driver and those transactions are managed by EBCE. This rate will be a $/kilowatt hour (kWh) rate and will be determined by EBCE. The rate will be market competitive and beneficial to EV drivers. Once an EV is fully charged, the charging rate will stop. However, if the EV remains in the EV only parking space longer than 90 minutes, the EV will incur a time-based fee. This fee is applicable 24/7 and requires no special enforcement by PPD.

Based on observations from Piedmont Police Department (PPD) night shift officers, there is very little use of the on-street parking spaces on this portion of Magnolia Avenue during the nighttime hours. Piedmont Police Chief Jeremy Bowers has indicated that should the Council approve the EV only parking spaces, the PPD will enforce the new parking space restrictions consistent with the other restricted parking throughout the City. The PPD¶V Community Service Officers are the primary parking enforcement mechanism the Department utilizes to enforce varying restricted parking in Piedmont. Police officers will enforce restrictions on a complaint basis when Community Service Officers are not available.

FISCAL IMPACT AND PROJECT SCHEDULE
Attachment 2 Agenda Report Page 21
IQ JDQXDU\ 2021, WKH AODPHGD CRXQW\ TUDQVSRUWDWLRQ CRPPLVVLRQ DSSURYHG EBCE¶V DSSOLFDWLRQ for $120,000 in Transportation Fund for Clean Air (TFCA) grant funding to partially pay for the installation of the proposed EV fast chargers in Piedmont. Coupled with the TFCA grant, EBCE will fund the remaining project costs (not to exceed $186,660) for the Magnolia Avenue site. Given the total project cost for the Magnolia Avenue location is not known at this time, EBCE has indicated that the City will have the option to fund the balance of the project should the cost exceed $306,660.

Unless project costs exceed $306,660, EBCE will assume responsibility for the full cost of installing, maintaining and operating the EV fast chargers on Magnolia Avenue for a term no less than ten years. If the cost estimate were to exceed $306,660 for the Magnolia Avenue site, EBCE has the option to terminate the agreement or the City can fund the cost difference for EBCE to proceed with the project scope described above.

Per EBCE¶V TCFA grant agreement, construction must start by April 30, 2022 and the EV fast chargers must be operational by July 1, 2022.

CEQA
The project to install publicly accessible EV fast charging stations is categorically exempt under the California Environmental Quality Act (CEQA), pursuant to CEQA Guidelines Section 15303, Class 3 (d), New Construction or Conversion of Small Structures because the project consists of the installation of a limited number of small facilities or as new small structures, and the project is consistent with General Plan policies and programs. The CEQA determination has been reviewed and approved by the City Attorney.

CONCLUSION AND NEXT STEPS
Should the Council agree to approve the agreement with EBCE and the parking restrictions, EBCE will submit applications for encroachment and excavation permits for the installation of the EV fast chargers at Magnolia Avenue. If project cost is determined to exceed EBCE¶V threshold of feasibility, the City Administrator will proceed with the project up to her Purchasing Policy limit of $75,000. Beyond $75,000, staff will return to Council to seek authorization for additional funding to cover the project cost difference. Should the Council elect not to cover the additional funding to cover the delta, the project will be terminated by EBCE.

ATTACHMENTS
Pages
1 5-13 Contract Agreement for EV Charging Stations with EBCE 2 14 Proposed EV Charging Station Location on Magnolia Avenue 3 15-28 June 21, 2021 City Council EV Charging Stations Staff Report By:

Daniel Gonzales, Director of Public Works
Alyssa Dykman, Sustainability Program Manager
Attachment 2 Agenda Report Page 22

CHARGING STATION LICENSE AGREEMENT
This Charging Station LLFHQVH AJUHHPHQW (³AJUHHPHQW´) LV HQWHUHG LQWR DV RI WKH BBBBB GD\ RI BBBBBBB, 2021 (³EIIHFWLYH DDWH´) E\ DQG EHWZHHQ WKH CLW\ RI PLHGPRQW, D PXQLFLSDO FRUSRUDWLRQ ("Host") and the East Bay Community Energy Authority, a Joint Power Authority ("EBCE").

HoVW DQG EBCE DUH LQGLYLGXDOO\ UHIHUUHG WR DV ³PDUW\´ DQG FROOHFWLYHO\ DV ³PDUWLHV´.

1. Grant of License. Host is the fee simple owner of certain real property located at Magnolia AYHQXH, PLHGPRQW, CA 94611 (³PURSHUW\´), ZKLFK LV PRUH SDUWLFXODUO\ GHSLFWHG on Exhibit A, which is attached hereto and incorporated by reference. Host grants to EBCE for the Term of this Agreement: (i) an exclusive and irrevocable, except as specifically set forth in Section 4 of this Agreement, license to use and occupy a portion of the Property, including the designated parking VSDFHV IRU FKDUJLQJ YHKLFOHV (³CKDUJLQJ SWDOOV´), ORFDWHG RQ WKH PUHPLVHV VKRZQ RQ E[KLELW A (WKH ³PUHPLVHV´), IRU WKH PXUSRVH GHVFULEHG LQ SHFWLRQ 2 RI WKLV AJUHHPHQW DQG (LL) DQ\ QHFHVVDU\ rights for Installation, maintenance, operation, access and utilities for the Purpose. Host shall not allow installation or use of charging stations other than those of EBCE on the Property. Prior to EBCE offering use of the Charging Stalls to the public, EBCE shall submit, for approval to the Planning and Building Director, plans for the manner of operation of the Charging Stalls, including, but not limited to, details regarding the maximum length of time a vehicle may occupy a Charging Stall, and any other such information deemed necessary by the Planning and Building DLUHFWRU (³OSHUDWLRQ PODQV´).

2. Purpose. The Premises may be used by EBCE 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 (which may include concrete pads and proteFWLYH EROODUGV) (FROOHFWLYHO\, WKH ³CKDUJLQJ SWDWLRQ´), WRJHWKHU ZLWK DQ\ RWKHU XVHV SHUPLWWHG KHUHLQ (³PXUSRVH´), RQ WKH WHUPV DQG FRQGLWLRQV set forth in this Agreement.

3. Term. The term of this Agreement (as extended or renewed from time to time, the ³THUP´) shall commence on the Effective Date and terminate ten (10) years from the date that the CKDUJLQJ SWDWLRQV DUH ILUVW RSHUDWLRQDO (³CRPPHQFHPHQW DDWH´). FROORZLQJ WKH H[SLUDWLRQ RI WKH initial Term, the Agreement may be renewed for an additional five (5) year term and then successive one (1)-year terms upon the written agreement of both Parties.

4. Termination. This Agreement may be terminated:
a. E\ EBCE, XSRQ WKLUW\ (30) GD\V¶ ZULWWHQ QRWLFH WR HRVW, DW DQ\ WLPH SULRU WR WKH submission of the permit application for construction of the Charging Station at the Property, or in the event that EBCE determines that the construction or continued operation of the Charging Station is impracticable or uneconomical; or
b. by EBCE, upon thirty (30) GD\V¶ ZULWWHQ QRWLFH WR HRVW, LI HRVW DGYHUVHO\ DIIHFWV EBCE's use of the Premises.

Attachment 2 Agenda Report Page 23
c. by Host, after the initial ten (10)-\HDU THUP, XSRQ QLQHW\ (90) GD\V¶ ZULWWHQ QRWLFH to EBCE, if Host notifies EBCE that it intends to use the Property and/or Premises for another purpose.
d. E\ HRVW, XSRQ WKLUW\ (30) GD\V¶ ZULWWHQ QRWLFH WR EBCE, LQ WKH HYHQW WKH Commencement Date has not occurred within fifteen (15) months following the Effective Date; provided that the foregoing right shall terminate upon the Commencement Date; or e. by either Party if the other Party breaches or fails to perform any of its obligations in any material respect, and such breach or failure continues uncured for ten (10) business days after receipt of written notice; provided that if such breach or failure reasonably requires more than ten (10) business days to cure, this provision shall not be triggered if such breaching Party commences to cure within such period and diligently proceeds to complete such cure; or f. by either Party, if the other Party becomes insolvent or proceedings are instituted by or against it under any provision of any federal or state bankruptcy or insolvency laws. g. by either Party, if any portion of the Property is damaged by fire or other casualty in a manner that adversely affects EBCE's use of the Premises, within thirty (30) days of the date of such fire or other casualty.

5. Electricity. Unless otherwise agreed by the Parties, EBCE shall be responsible for all electricity costs of the Charging Stations by obtaining separately metered electricity service.

Host shall reasonably cooperate with EBCE's efforts regarding the provision of electricity to the Charging Stations. Neither Host nor EBCE has any responsibility or liability for interruption, curtailment, failure, or defect in the supply or character of distribution utilities furnished to the Charging Station. Host grants to EBCE the right to establish and/or receive utility services including but not limited to electric, and the right for the distribution utility service supplier to construct, reconstruct, install, inspect, maintain, replace, remove, and use said utility services to serve the Charging Stations together with the right for the utility service supplier to ingress to and egress from said utility service facilities across the Host Property. Host grants the right for the distribution utility and the service utility to trim, cut down, and clear away or otherwise FRQWURO DQ\ WUHHV RU EUXVK ZLWKLQ ILYH (5) IHHW RI VDLG URXWH XSRQ HRVW¶V ZULWWen consent prior to such action, which shall not be unreasonably withheld, conditioned or delayed.

6. Maintenance of Premises. Host shall cause the Premises, including EBCE Charging Stalls, to be reasonably maintained in a clean, safe, and orderly condition to at least the same standard as adjacent areas of the Property that are under Host control are maintained. Host shall have no UHVSRQVLELOLW\ WR PDLQWDLQ EBCE¶V CKDUJLQJ SWDWLRQ RU UHODWHG WR EBCE HTXLSPHQW, KDUGZDUH, software, or signage. Host shall not retain any ownership rights in the Charging Station and related EBCE equipment. EBCE and its employees, contractors, and vendors may, at any time during the Term, access the Premises and Property to maintain, inspect, repair, upgrade, remove or replace any portion of the Charging Stations.

Attachment 2 Agenda Report Page 24

7. EBCE Customers: Access. EBCE will provide access to the Charging Stations to customers (³EBCE CXVWRPHUV´), ZKLFK PD\ LQFOXGH PHPEHUV RI WKH SXEOLF, DV ZHOO DV FRPPHUFLDO IOHHW and rideshare vehicles, who shall be charged in amounts reasonably determined by EBCE, which may change from time to time in EBCE's sole discretion. EBCE Customers shall have access to the Premises twenty-four (24) hours per day, seven (7) days per week, and 365/366 days per year. Host shall notify EBCE at least forty-eight (48) hours in advance, or as soon as reasonably practical in the event that forty-HLJKW (48) KRXUV¶ DGYDQFH LV LPSUDFWLFDO GXH WR HPHUJHQF\, RI DQ\ need to limit access to the Premises due to maintenance, safety, or other unforeseen reasons.

8. Signage & Promotional Activities. EBCE may stripe and place appropriate signage at the Premises and mark the Charging Station and Charging Stalls and related EBCE equipment with HRVW¶V SULRU DSSURYDO, ZKLFK VKDOO QRW EH XQUHasonably withheld, conditioned or delayed. In addition, subject to Host's prior approval, not to be unreasonably withheld, EBCE may place signage, marks, or advertising devices in, on, or about and around the Premises within the Host Property at EBCE' s sole cost and subject to applicable laws and regulations. At no time may HRVW SODFH DQ\ VLJQDJH RQ EBCE SURSHUW\ ZLWKRXW EBCE¶V SULRU DSSURYDO.

9. Promotional Activities. During the Term of the Agreement, EBCE may promote the availability of the Charging Station through traditional and/or electronic media, including providing the address to the Property and a description thereof. No Party shall use the other PDUW\¶V WUDGH RU VHUYLFH PDUNV, ORJRV, RU RWKHU SURSULHWDU\ PDWHULDOV ZLWKRXW WKH SULRU ZULWWHQ consent of the other Party.

10. Construction. EBCE shall, at its sole cost and expense, be responsible for all installation activities required to support the operation of the Charging Station and services therewith, including the hiring and coordination of all vendors and contractors; the installation of electrical equipment, utility lines, hardware, and software; site preparation, trenching, repaving, and landscaping. Before beginning any installation activities, EBCE shall provide a copy of the construction schedule and installation plans to Host for its approval, which approval shall not be unreasonably delayed or withheld. EBCE shall ensure that it or its designated contractor(s) and/or service providers: obtain from governmental authorities all licenses, permits, or other approvals (collectively, "Approvals") required to conduct such installation activities. Host will reasonably cooperate with EBCE's designated contractors and service providers to obtain such Approvals. EBCE shall not permit or suffer any mechanic's or materialmen's liens to attach to the Premises. If such a lien attaches to the Premises, EBCE shall remove or bond over such lien at EBCE' s sole cost and expense, within twenty (20) days of EBCE receiving written notice thereof from Host. EBCE shall ensure that it or its designated contractors, subcontractors and/or service providers pay prevailing wages for any construction, installation work or maintenance contracts related to the Charging Station and related equipment, as those wages are determined pursuant to Labor Code Section 1720 et seq., and Sections 1774 and 1775, to employ apprentices as required by Labor Code Section 1777.5 et seq., and EBCE shall cause the contractor and subcontractors to comply with all other applicable provisions of the Labor Code and the implementing regulations of the Department of Industrial Relations (the "DIR").

11. Modification. EBCE 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 Attachment 2 Agenda Report Page 25
SWDWLRQ (FROOHFWLYHO\, ³MRGLILFDWLRQV´), ZKHWKHU RU QRW VDLG LWHPV DUH FRQVLGHUHG IL[WXUHV DQG attachments to the Premises under applicable laws; provided, however, before any such Modifications, EBCE shall provide at least sixty (60) days prior written notice to Host.

11. Removal. Within ninety (90) days following the termination of this Agreement, EBCE shall remove the Charging Stations and all of EBCE's other equipment and personal property from the Premises, but not electric infrastructure, which shall remain with the Property. This provision shall survive the termination of this Agreement.

12. Representations. Warranties & Covenants. Host and EBCE each hereby represent and warrant to the other that, as of the Effective Date: (a) it has all necessary power and authority to execute, deliver, and perform its obligations hereunder; (b) the execution, delivery, and performance of the Agreement have been duly authorized by all necessary action and do not violate any of the terms or conditions of its governing documents, any contract to which it is a party, or any law, regulation, order, or other legal determination applicable to it; (c) there is no pending or, to its knowledge, 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 of such Party, except as enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting creditors' rights and by general principles of equity. Both Parties shall comply with all federal, state, and local laws, rules, regulations (including, without limitation, all zoning ordinances and building codes, nondiscrimination laws) and as amended from time-to-time in performing its obligations under the Agreement.

13. Indemnity. Each Party shall indemnify and hold harmless the other Party, and their respective affiliates, representatives, officials, agents, officers, directors, managers, members, partners, contractors, consultants, or employees, from and against all third-party claims, demands, causes of action, liabilities, costs, damages, losses, penalties, fines, judgments or expenses, including reasonable attorneys' fees and costs of collection (collectively, "Losses") that arise out of or result from (i) any willful misconduct or negligence of the indemnifying Party in connection with this Agreement, (ii) any breach by the indemnifying Party of its obligations, UHSUHVHQWDWLRQV RU ZDUUDQWLHV XQGHU WKLV AJUHHPHQW, RU (LLL) WKH LQGHPQLI\LQJ PDUW\¶V RSHUDWLRQ RI the Premises or Property, except to the extent arising out of or resulting from any willful misconduct or negligence of the indemnified Party. The obligations of the Parties under this Section shall survive the expiration, cancellation, or termination of this Agreement and the Term.

14. Insurance. During the Term, EBCE shall maintain insurance in full force and effect, at its cost and expense, as set forth in Exhibit B, attached hereto and incorporated herein by this reference. The insurance limits required of EBCE may be satisfied through self-insurance or a JPA, as designated in Exhibit B. Prior to the execution of the Agreement, EBCE shall provide proof of insurance required. EBCE shall make best efforts to provide Host thirty (30) days prior written notice of termination or material change in coverage and ten (10) days prior written notice of cancellation for non-payment. The City of Piedmont, its Council Members, directors, officers, agents and employees shall be named as additional insureds. EBCE shall provide Host with an additional insured certificate for each such insurance coverage.

Attachment 1
Attachment 2 Agenda Report Page 26

15. Limitation of Liability. In no event shall either Party be liable (in contract or in tort, including negligence and strict liability) to such other Party for any special, indirect or consequential damages relating to this Agreement. The provisions of this Section shall apply to the full extent permitted by law and shall survive termination of this Agreement.

16. Miscellaneous.
a. Notice. Any notice provided or permitted to be given under the 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. 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. Each Party may change its address for notice by giving notice thereof to the other Party. For purposes of notice the addresses of the Parties shall be as follows: [CONTACT INFORMATION] b. Assignment. In the event the Premises is transferred or Host ceases to have the requisite level of control over the Premises necessary to fulfill its obligations under the Agreement (each, a "Transfer Event"), and the Agreement is not first terminated pursuant to Section 4 of this Agreement, Host shall assign its rights and obligations under the Agreement to the person or entity which would be able to comply with Host's obligations following such Transfer Event. Further, Host agrees that any such Transfer Event shall not affect, terminate or disturb EBCE's right to possession of the Premises under the terms of the Agreement or any of EBCE's other rights under the Agreement, so long as EBCE is not then in default under any of the terms, covenants or conditions of the Agreement.
c. No Agency Relationship. Nothing in the Agreement shall be deemed or construed to create a joint venture, partnership, fiduciary, or agency relationship between the Parties for any purpose set forth in this Agreement, and the employees of one party shall not be deemed to be the employees of the other Party. Except as otherwise stated in the Agreement, neither Party has any right to act on behalf of the other, nor represent that it has such right or authority. d. Severability. If any term of the Agreement is held by any court of competent jurisdiction to be invalid, such invalidity shall not invalidate the remainder of the Agreement and 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. e. Governing Law. This Agreement hall be governed by the laws of California and the City of Piedmont with venue in Alameda County.
f. No Waiver. The failure of a Party to insist on strict performance of any provision of the Agreement does not constitute a waiver of or estoppel against asserting the right to require performance in the future and a waiver or estoppel given in any one instance does not constitute the same with respect to a later obligation or breach.

Attachment 1
Attachment 2 Agenda Report Page 27
g. Remedies. The rights and remedies provided by the 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. h. Force Majeure. Neither Party is responsible for any delay or failure in performance of any part of the 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, pandemic, act or omission of carriers or other similar causes beyond the Party's control. i. Attorneys' Fees. If either Party institutes a suit against the other for violation of or to enforce any covenant, term or condition of the Agreement, the prevailing party shall be entitled to reimbursement of all of its costs and expenses, including, without limitation, reasonable attorneys' fees.
j. No Third Party Beneficiaries. The Agreement does not confer any rights or remedies on any person other than the Parties and their respective successors and permitted assigns.
k. Integration; Amendments. The Agreement contains all agreements, promises and understandings between the Parties as to the subject matter of this Agreement. Any amendment, modification or other change to the Agreement shall be ineffective unless made in a writing signed by the Parties hereto.
l. Counterparts. The Agreement may be executed in any number of counterparts with the same effect as if all the Parties had signed the same document. m. Construction. All documents or items attached to, or referred to in, the Agreement are incorporated into the Agreement as fully as if stated within the body of the Agreement. Each Party has cooperated in the drafting, negotiation and preparation of the Agreement and nothing herein shall be construed against either Party on the basis of that Party being the drafter of such language.

In witness thereof, the Parties have entered into this Agreement as of the Effective Date set forth above.
* * *
[Signatures on following page]
Attachment 2 Agenda Report Page 28
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date set forth above.

CITY OF PIEDMONT
By: Date:

Sara Lillevand, City Administrator

CONSULTANT
By: Date:

Attest
By:

John Tulloch, City Clerk
Approved As To Form
By:

Michelle Marchetta Kenyon, City Attorney
Attachment 2 Agenda Report Page 29

EXHIBIT A

PROPERTY AND PREMISES
Attachment 2 Agenda Report Page 30

EXHIBIT B

INSURANCE
The following minimum levels of insurance coverage shall be provided during the term of this Contract.

The City of Piedmont, its Council Members, directors, officers, agents and employees shall be named as additional insureds. EBCE shall provide Host with an additional insured certificate for each such insurance coverage.

A. Professional Liability Insurance. $2,000,000 per claim / $6,000,000 in aggregate
B. :RUNHU¶V CRPSHQVDWLRQ IQVXUDQFH. $1,000,000
C. Automobile Insurance $1,000,000
D. General Liability and Property Damage Insurance. $4,000,000 (single limit per occurrence)
EBCE shall notify Host within one (1) business day after it has been served or notified of any claim or legal action that in any way involves EBCE, and Host, even if Host is not named in the claim or as a defendant in any legal action, if such notification comes to EBCE from any source other than Host. EBCE shall also promptly provide Host, within the same time period set forth in the prior sentence, with copies of any document or information it has regarding such claim or legal action.

Attachment 2 Agenda Report Page 31
Attachment 2 ± Proposed Magnolia Avenue Site
Attachment 2 Agenda Report Page 32
City of Piedmont

COUNCIL AGENDA REPORT
DATE: June 21, 2021
TO: Mayor and Council
FROM: Sara Lillevand, City Administrator
SUBJECT: Consideration of a Resolution Authorizing the City Administrator to Sign an Agreement with East Bay Community Energy for the Installation of Two Dual Port Electric Vehicle Charging Stations on Bonita Avenue and Parking Restrictions for the Four Spaces Served by the Electric Vehicle Chargers.

RECOMMENDATION
By a single motion, take the following actions:

1. Approve a resolution authorizing the City Administrator to sign an agreement with East Bay Community Energy (EBCE) for the installation of two dual-port fast Electric Vehicle (EV) charging stations on Bonita Avenue near the intersection of Vista Avenue;

2. Authorize the City Administrator, in consultation with the City Attorney, to make minor changes to the agreement to satisfy the needs of the City; and

3. Approve parking restrictions for the four on-street parking spaces served by the EV chargers.

EXECUTIVE SUMMARY
City Staff has been working with EBCE to plan the installation of publicly-accessible EV charging stations in the Civic Center area serving four existing angled public parking spots next to the tennis courts on Bonita Avenue near the intersection of Vista Avenue. These four angled spots will share two dual-port direct current fast charging kiosk-style ground-mounted chargers. (Attachment 2 provides photographic examples of the chargers.) This installation will provide four publiclyaccessible EV-only parking spaces available to anyone with an EV in an area of Piedmont where there is the opportunity for high utilization and demand. The EV chargers will be installed, owned, maintained, and operated by EBCE at no cost to the City. The four parking spaces that will be used for EV charging are currently available to the public subject to a 2-hour limit. Direct current fast chargers are able to charge an EV battery in 30 minutes. Staff recommends restricting these four parking spaces to a 1-hour limit and to electric vehicles only. A preliminary location plan and an agreement are attached to this report for reference. Should EBCE seek further minor refinements, staff is recommending the authorization for the City Administrator, in consultation with the City Attorney, to make minor changes to the agreement to satisfy the needs of the City Attachment 2 Agenda Report Page 33

BACKGROUND
Emissions of carbon dioxide equivalent (CO2e) from gas and diesel-fueled vehicles are among the biggest obstacles to meeting the City¶s emissions reduction goals as outlined in the Climate Action Plan (CAP) 2.0. In 2019, vehicles in Piedmont emitted over 16,000 metric tons of CO2e, which accounts for 49% of the Piedmont community¶s total emissions. The municipal government has no effective local regulatory authority over the type of private sector vehicles used within the city boundaries. That authority lies with the State and Federal governments. However, the City can implement projects and programs that incentivize the use of zero emission vehicles which include plug-in hybrid EVs, plug-in battery EVs, and fuel cell EVs, and that make it more convenient and cost effective to drive electric. In its efforts to achieve the City¶s CAP 2.0 emissions reduction goals, staff has collaborated for more than a year with EBCE on the development of a public EV charging project. The charging stations are expected to serve residents who may or may not have access to charging facilities at home, and visitors. According to a random sample survey of 400 Piedmont residents conducted June 17 to 22, 2020 by FM3 Research, 79% of survey respondents support a program for public chargers in Piedmont (follow hyperlink in Attachment section of this report). Additionally, 49% of respondents said they were likely to use the chargers and 48% of respondents said the availability of the proposed chargers might influence their decision to select an EV the next time they purchase a car.

On July 1, 2020, City staff brought forth the concept of an EV charging station pilot program to the Park Commission. This original plan was to deploy both Level-2 and Direct Current Fast Charging (DCFC) technologies to meet the needs of drivers. The plan proposed five EV charging stations: two kiosk style fast chargers serving four parking spaces in the Community Hall parking lot, and three streetlight pole-mounted Level-2 chargers serving 3 curbside parking spaces on Highland Avenue and 2 curbside parking spaces on Grand Avenue. After receiving a presentation by City and EBCE staff, receiving comments from members of the public, and having a thorough discussion of the project, the Park Commission supported the general concept of an EV charging station pilot program and voted unanimously to recommend the City Council and staff to work with EBCE to address the Commission¶s concerns and suggestions, including those related to traffic congestion and scarcity of parking on Grand Avenue and near the Community Center. A hyperlink to the minutes and video of the Park Commission is available under the Attachments section of this report.

DISCUSSION
Site Selection
Following the July 2020 Park Commission meeting, City and EBCE staff collaborated to address the Park Commission¶s concerns regarding locations and installation options. The investigation found that there are obstacles to locating chargers at curbside parking spaces in residential neighborhoods. Attaching EV chargers to PG&E-owned utility poles is not a viable option due to the fact that adding equipment to a utility pole is not industry best practice as it prohibits line workers from easily and safely accessing the wires above. Attaching EV chargers to City-owned streetlights also proved infeasible due to PG&E engineering and billing constraints. Finally, locating curbside EV chargers in residential areas that are not near high-traffic commercial and civic districts would result in underutilization of the equipment. Siting EV charging infrastructure Attachment 2 Agenda Report Page 34
in high-traffic commercial and Civic Center areas will result in higher utilization, which is required for EBCE¶s investment.

In response to the location and infrastructure constraints, City and EBCE staff determined that two dual-port, kiosk-style ground-mounted DC fast chargers serving four parking spaces in the Civic Center area provided the best solution as follows:
x DC fast chargers replenish an EV battery in less than 30 minutes, much faster than the two hours required by Level-2 chargers. This offers more opportunity for use. x The location of the kiosk-style chargers are not limited by proximity to streetlights. x A Civic Center location would be the most likely to serve the greatest number of people without disrupting the existing flow of traffic or further constrain on-street parking availability.

In collaboration with EBCE, City staff identified the four angled parking spaces on the west side of Bonita Avenue next to the intersection with Vista Avenue as the optimal location for the chargers (see Attachment 3). This location serves PUSD staff and students at three campuses, City employees, visitors to City Hall, customers and staff of nearby commercial establishments and houses of worship, and neighborhood residents. The location also reduces installation costs by minimizing trenching, which can be done with minimal disturbance to tree roots.

Parking Restrictions
The four parking spaces served by the proposed location are currently restricted to a 2-hour time limit and with no permit restrictions. Installation of the EV charging stations will require changing these existing parking restrictions by the City Council. Because DC fast chargers are able to charge an EV battery in 30 minutes, City staff recommend restricting these four parking spaces to a 1- hour limit and to electric vehicles only. These restrictions provide a generous amount of time for a driver to charge an EV and also meet EBCE¶s project goals that the chargers serve publiclyaccessible EV-only parking spaces with no permit restrictions and in areas where demand will likely be greatest.

FISCAL IMPACT
In January 2021, the Alameda County Transportation Commission approved EBCE¶s application for Transportation Fund for Clean Air (TFCA) grant funding (~$120,000) to pay for the installation of the proposed EV chargers in Piedmont. By leveraging local TFCA grant funds, and its own funds for infrastructure development, EBCE will deliver the project at no cost to the City. The project will serve as a pilot for EBCE with the goal of taking lessons learned and scaling deployment of EV charging infrastructure assets throughout its service area. Since EBCE is responsible for the full cost of installing, maintaining and operating the EV chargers, the project will not have any impact on the General Fund other than the cost of any signage and curb painting associated with the EV-only parking spaces. The cost of the electricity used to charge a vehicle¶s battery is borne by the EV user and those transactions are managed by EBCE.

Attachment 2 Agenda Report Page 35
CEQA
The project to install publicly-accessible EV charging stations is categorically exempt under the California Environmental Quality Act (CEQA), pursuant to CEQA Guidelines Section 15303, Class 3 (d), New Construction or Conversion of Small Structures because the project consists of the installation of a limited number of small facilities or as new small structures, and the project is consistent with General Plan policies and programs. The CEQA determination has been reviewed and approved by the City Attorney.

CONCLUSION AND NEXT STEPS
The installation of direct current fast EV chargers to serve Piedmont residents, business owners, employees, students, and visitors will help the City meet the goals of the Piedmont Climate Action Plan. That this project comes at very little cost to the City makes it especially attractive. Should the Council agree to approve the agreement and the parking restrictions, City staff will direct EBCE to submit an applications for encroachment and excavation permits for the installation of the chargers.

By: Kevin Jackson, Director of Planning & Building
Daniel Gonzales, Director of Public Works
Alyssa Dykman, Sustainability Program Manager
Nate Redinbo, Climate Action Fellow

ATTACHMENTS
Pages
1 5-12 Contract Agreement for EV Charging Stations with EBCE 2 13 Photographs of Example DCFC EV Chargers
3 14 Proposed Dual-Port Ground-Mounted EV Charging Station Location on Bonita Ave.

Supplemental and Referenced Documents
A recording of the July 1, 2020 Park Commission Meeting is available at:
https://piedmont.granicus.com/MediaPlayer.php?view_id=3&clip_id=2183 Piedmont Emissions Reduction Survey of June 17-22, 2020 – Results is available at:
https://piedmont.ca.gov/UserFiles/Servers/Server_13659739/File/Government/Departments/Plan ning%20Division/Reach_Codes/Emissions_Reduction_Survey_Results.pdf Video Compilation of Interviews with EV Users in Piedmont is available at either:

Granicus – https://piedmont.granicus.com/MediaPlayer.php?view_id=3&clip_id=2174 YouTube - https://youtu.be/OE3a9yTBeTA
The City of Piedmont General Plan is available at: https://piedmont.ca.gov/General_Plan The City of Piedmont Climate Action Plan 2.0 is available at:
https://piedmont.ca.gov/Climate_Action_Plan
Attachment 2 Agenda Report Page 36

CHARGING STATION LICENSE AGREEMENT
ThiV ChaUgiQg SWaWiRQ LiceQVe AgUeePeQW (³AgUeePeQW´) iV eQWeUed iQWR aV Rf Whe _____ da\ Rf _______, 2021 (³EffecWiYe Date´) b\ aQd beWZeeQ Whe CiW\ of Piedmont, a municipal corporation ("Host") and the East Bay Community Energy Authority, a Joint Power Authority ("EBCE"). Host and EBCE aUe iQdiYidXaOO\ UefeUUed WR aV ³PaUW\´ aQd cROOecWiYeO\ aV ³PaUWieV´.

1. Grant of License. Host is the fee simple owner of certain real property located at Bonita Avenue. and Vista Avenue, Piedmont, CA 94611 (³PURSeUW\´), which is more particularly depicted on Exhibit A, which is attached hereto and incorporated by reference. Host grants to EBCE for the Term of this Agreement: (i) an exclusive and irrevocable, except as specifically set forth in Section 4 of this Agreement, license to use and occupy a portion of the Property, including the designated parking VSaceV fRU chaUgiQg YehicOeV (³Charging Stalls´), located on the Premises shown on Exhibit A (the ³PUePiVeV´), for the Purpose described in Section 2 of this Agreement and (ii) any necessary rights for Installation, maintenance, operation, access and utilities for the Purpose. Host shall not allow installation or use of charging stations other than those of EBCE on the Property. Prior to EBCE offering use of the Charging Stalls to the public, EBCE shall submit, for approval to the Planning and Building Director, plans for the manner of operation of the Charging Stalls, including, but not limited to, details regarding the maximum length of time a vehicle may occupy a Charging Stall, and any RWheU VXch iQfRUPaWiRQ deePed QeceVVaU\ b\ Whe POaQQiQg aQd BXiOdiQg DiUecWRU (³OSeUaWiRQ POaQV´).

2. Purpose. The Premises may be used by EBCE 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 (which may iQcOXde cRQcUeWe SadV aQd SURWecWiYe bROOaUdV) (cROOecWiYeO\, Whe ³ChaUgiQg SWaWiRQ´), WRgeWheU ZiWh any oWheU XVeV SeUPiWWed heUeiQ (³PXUSRVe´), RQ Whe WeUPV aQd cRQdiWiRQV VeW fRUWh iQ WhiV AgUeePeQW.

3. Term. The WeUP Rf WhiV AgUeePeQW (aV e[WeQded RU UeQeZed fURP WiPe WR WiPe, Whe ³TeUP´) VhaOO commence on the Effective Date and terminate ten (10) years from the date that the Charging Stations are first opeUaWiRQaO (³CRPPeQcePeQW DaWe´). Following the expiration of the initial Term, the Agreement may be renewed for an additional five (5) year term and then successive one (1)-year terms upon the written agreement of both Parties.

4. Termination. This Agreement may be terminated:
a. by EBCE, XSRQ WhiUW\ (30) da\V¶ ZUiWWeQ QRWice WR HRVW, at any time prior to the submission of the permit application for construction of the Charging Station at the Property, or in the event that EBCE determines that the construction or continued operation of the Charging Station is impracticable or uneconomical; or
b. by EBCE, XSRQ WhiUW\ (30) da\V¶ ZUiWWeQ QRWice WR HRVW, if Host adversely affects EBCE's use of the Premises.
c. by Host, after the initial ten (10)-year Term, upon ninety (90) da\V¶ ZUiWWeQ QRWice WR EBCE, if Host notifies EBCE that it intends to use the Property and/or Premises for another purpose. d. by Host, XSRQ WhiUW\ (30) da\V¶ ZUiWWeQ QRWice WR EBCE, in the event the Commencement Date has not occurred within fifteen (15) months following the Effective Date; provided that the foregoing right shall terminate upon the Commencement Date; or e. by either Party if the other Party breaches or fails to perform any of its obligations in any material respect, and such breach or failure continues uncured for ten (10) business days after receipt of written notice; provided that if such breach or failure reasonably requires more than ten Attachment 2 Agenda Report Page 37
(10) business days to cure, this provision shall not be triggered if such breaching Party commences to cure within such period and diligently proceeds to complete such cure; or f. by either Party, if the other Party becomes insolvent or proceedings are instituted by or against it under any provision of any federal or state bankruptcy or insolvency laws. g. by either Party, if any portion of the Property is damaged by fire or other casualty in a manner that adversely affects EBCE's use of the Premises, within thirty (30) days of the date of such fire or other casualty.

5. Electricity. Unless otherwise agreed by the Parties, EBCE shall be responsible for all electricity costs of the Charging Stations by obtaining separately metered electricity service. Host shall reasonably cooperate with EBCE's efforts regarding the provision of electricity to the Charging Stations. Neither Host nor EBCE has any responsibility or liability for interruption, curtailment, failure, or defect in the supply or character of distribution utilities furnished to the Charging Station. Host grants to EBCE the right to establish and/or receive utility services including but not limited to electric, and the right for the distribution utility service supplier to construct, reconstruct, install, inspect, maintain, replace, remove, and use said utility services to serve the Charging Stations together with the right for the utility service supplier to ingress to and egress from said utility service facilities across the Host Property. Host grants the right for the distribution utility and the service utility to trim, cut down, and clear away or otherwise control any trees or brush within five (5) feet of said route XSRQ HRVW¶V ZUiWWeQ cRQVeQW SUiRU WR VXch acWiRQ, which shall not be unreasonably withheld, conditioned or delayed.

6. Maintenance of Premises. Host shall cause the Premises, including EBCE Charging Stalls, to be reasonably maintained in a clean, safe, and orderly condition to at least the same standard as adjacent areas of the Property that are under Host control are maintained. Host shall have no UeVSRQVibiOiW\ WR PaiQWaiQ EBCE¶V ChaUgiQg SWaWiRQ RU UeOaWed WR EBCE eTXiSPeQW, haUdZaUe, software, or signage. Host shall not retain any ownership rights in the Charging Station and related EBCE equipment. EBCE and its employees, contractors, and vendors may, at any time during the Term, access the Premises and Property to maintain, inspect, repair, upgrade, remove or replace any portion of the Charging Stations.

7. EBCE Customers: Access. EBCE will provide access to the Charging Stations to customers (³EBCE CXVWRPeUV´), which may include members of the public, as well as commercial fleet and rideshare vehicles, who shall be charged in amounts reasonably determined by EBCE, which may change from time to time in EBCE's sole discretion. EBCE Customers shall have access to the Premises twenty-four (24) hours per day, seven (7) days per week, and 365/366 days per year. Host shall notify EBCE at least forty-eight (48) hours in advance, or as soon as reasonably practical in the event that forty-eighW (48) hRXUV¶ adYaQce iV iPSUacWicaO due to emergency, of any need to limit access to the Premises due to maintenance, safety, or other unforeseen reasons.

8. Signage & Promotional Activities. EBCE may stripe and place appropriate signage at the Premises and mark the Charging Station and Charging Stalls and related EBCE equipment with HRVW¶V SUiRU aSSURYaO, which shall not be unreasonably withheld, conditioned or delayed. In addition, subject to Host's prior approval, not to be unreasonably withheld, EBCE may place signage, marks, or advertising devices in, on, or about and around the Premises within the Host Property at EBCE' s sole cost and subject to applicable laws and regulations. At no time may Host place any signage on EBCE property ZiWhRXW EBCE¶V SUiRU aSSURYaO.

9. Promotional Activities. During the Term of the Agreement, EBCE may promote the availability of the Charging Station through traditional and/or electronic media, including providing the address to the Property and a description thereof. No Party shall use the other PaUW\¶V WUade RU VeUYice PaUkV, logos, or other proprietary materials without the prior written consent of the other Party.

Attachment 2 Agenda Report Page 38

10. Construction. EBCE shall, at its sole cost and expense, be responsible for all installation activities required to support the operation of the Charging Station and services therewith, including the hiring and coordination of all vendors and contractors; the installation of electrical equipment, utility lines, hardware, and software; site preparation, trenching, repaving, and landscaping. Before beginning any installation activities, EBCE shall provide a copy of the construction schedule and installation plans to Host for its approval, which approval shall not be unreasonably delayed or withheld. EBCE shall ensure that it or its designated contractor(s) and/or service providers: obtain from governmental authorities all licenses, permits, or other approvals (collectively, "Approvals") required to conduct such installation activities. Host will reasonably cooperate with EBCE's designated contractors and service providers to obtain such Approvals. EBCE shall not permit or suffer any mechanic's or materialmen's liens to attach to the Premises. If such a lien attaches to the Premises, EBCE shall remove or bond over such lien at EBCE' s sole cost and expense, within twenty (20) days of EBCE receiving written notice thereof from Host. EBCE shall ensure that it or its designated contractors, subcontractors and/or service providers pay prevailing wages for any construction, installation work or maintenance contracts related to the Charging Station and related equipment, as those wages are determined pursuant to Labor Code Section 1720 et seq., and Sections 1774 and 1775, to employ apprentices as required by Labor Code Section 1777.5 et seq., and EBCE shall cause the contractor and subcontractors to comply with all other applicable provisions of the Labor Code and the implementing regulations of the Department of Industrial Relations (the "DIR").

11. Modification. EBCE 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 (cROOecWiYeO\, ³MRdificaWiRQV´), ZheWheU RU QRW Vaid iWePV aUe cRQVideUed fi[WXUeV aQd aWWachPeQWV WR the Premises under applicable laws; provided, however, before any such Modifications, EBCE shall provide at least sixty (60) days prior written notice to Host.

11. Removal. Within ninety (90) days following the termination of this Agreement, EBCE shall remove the Charging Stations and all of EBCE's other equipment and personal property from the Premises, but not electric infrastructure, which shall remain with the Property. This provision shall survive the termination of this Agreement.

12. Representations. Warranties & Covenants. Host and EBCE each hereby represent and warrant to the other that, as of the Effective Date: (a) it has all necessary power and authority to execute, deliver, and perform its obligations hereunder; (b) the execution, delivery, and performance of the Agreement have been duly authorized by all necessary action and do not violate any of the terms or conditions of its governing documents, any contract to which it is a party, or any law, regulation, order, or other legal determination applicable to it; (c) there is no pending or, to its knowledge, 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 of such Party, except as enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting creditors' rights and by general principles of equity. Both Parties shall comply with all federal, state, and local laws, rules, regulations (including, without limitation, all zoning ordinances and building codes, nondiscrimination laws) and as amended from time-to-time in performing its obligations under the Agreement.

13. Indemnity. Each Party shall indemnify and hold harmless the other Party, and their respective affiliates, representatives, officials, agents, officers, directors, managers, members, partners, contractors, consultants, or employees, from and against all third-party claims, demands, causes of action, liabilities, costs, damages, losses, penalties, fines, judgments or expenses, including reasonable attorneys' fees and costs of collection (collectively, "Losses") that arise out of or result from (i) any willful misconduct or negligence of the indemnifying Party in connection with this Agreement, (ii) any breach by the indemnifying Party of its obligations, representations or warranties Attachment 2 Agenda Report Page 39
XQdeU WhiV AgUeePeQW, RU (iii) Whe iQdePQif\iQg PaUW\¶V RSeUaWiRQ Rf Whe PUePiVeV RU PURSeUW\, e[ceSW to the extent arising out of or resulting from any willful misconduct or negligence of the indemnified Party. The obligations of the Parties under this Section shall survive the expiration, cancellation, or termination of this Agreement and the Term.

14. Insurance. During the Term, EBCE shall maintain insurance in full force and effect, at its cost and expense, as set forth in Exhibit B, attached hereto and incorporated herein by this reference.

The insurance limits required of EBCE may be satisfied through self-insurance or a JPA, as designated in Exhibit B. Prior to the execution of the Agreement, EBCE shall provide proof of insurance required. EBCE shall make best efforts to provide Host thirty (30) days prior written notice of termination or material change in coverage and ten (10) days prior written notice of cancellation for non-payment. The City of Piedmont, its Council Members, directors, officers, agents and employees shall be named as additional insureds. EBCE shall provide Host with an additional insured certificate for each such insurance coverage.

15. Limitation of Liability. In no event shall either Party be liable (in contract or in tort, including negligence and strict liability) to such other Party for any special, indirect or consequential damages relating to this Agreement. The provisions of this Section shall apply to the full extent permitted by law and shall survive termination of this Agreement.

16. Miscellaneous.
a. Notice. Any notice provided or permitted to be given under the 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.

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. Each Party may change its address for notice by giving notice thereof to the other Party. For purposes of notice the addresses of the Parties shall be as follows: [CONTACT INFORMATION] b. Assignment. In the event the Premises is transferred or Host ceases to have the requisite level of control over the Premises necessary to fulfill its obligations under the Agreement (each, a "Transfer Event"), and the Agreement is not first terminated pursuant to Section 4 of this Agreement, Host shall assign its rights and obligations under the Agreement to the person or entity which would be able to comply with Host's obligations following such Transfer Event. Further, Host agrees that any such Transfer Event shall not affect, terminate or disturb EBCE's right to possession of the Premises under the terms of the Agreement or any of EBCE's other rights under the Agreement, so long as EBCE is not then in default under any of the terms, covenants or conditions of the Agreement.
c. No Agency Relationship. Nothing in the Agreement shall be deemed or construed to create a joint venture, partnership, fiduciary, or agency relationship between the Parties for any purpose set forth in this Agreement, and the employees of one party shall not be deemed to be the employees of the other Party. Except as otherwise stated in the Agreement, neither Party has any right to act on behalf of the other, nor represent that it has such right or authority. d. Severability. If any term of the Agreement is held by any court of competent jurisdiction to be invalid, such invalidity shall not invalidate the remainder of the Agreement and 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. e. Governing Law. This Agreement hall be governed by the laws of California and the City of Piedmont with venue in Alameda County.

Attachment 2 Agenda Report Page 40
f. No Waiver. The failure of a Party to insist on strict performance of any provision of the Agreement does not constitute a waiver of or estoppel against asserting the right to require performance in the future and a waiver or estoppel given in any one instance does not constitute the same with respect to a later obligation or breach.
g. Remedies. The rights and remedies provided by the 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.
h. Force Majeure. Neither Party is responsible for any delay or failure in performance of any part of the 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, pandemic, act or omission of carriers or other similar causes beyond the Party's control. i. Attorneys' Fees. If either Party institutes a suit against the other for violation of or to enforce any covenant, term or condition of the Agreement, the prevailing party shall be entitled to reimbursement of all of its costs and expenses, including, without limitation, reasonable attorneys' fees.
j. No Third Party Beneficiaries. The Agreement does not confer any rights or remedies on any person other than the Parties and their respective successors and permitted assigns. k. Integration; Amendments. The Agreement contains all agreements, promises and understandings between the Parties as to the subject matter of this Agreement. Any amendment, modification or other change to the Agreement shall be ineffective unless made in a writing signed by the Parties hereto.
l. Counterparts. The Agreement may be executed in any number of counterparts with the same effect as if all the Parties had signed the same document. m. Construction. All documents or items attached to, or referred to in, the Agreement are incorporated into the Agreement as fully as if stated within the body of the Agreement. Each Party has cooperated in the drafting, negotiation and preparation of the Agreement and nothing herein shall be construed against either Party on the basis of that Party being the drafter of such language.

In witness thereof, the Parties have entered into this Agreement as of the Effective Date set forth above.
* * *
[Signatures on following page]
Attachment 2 Agenda Report Page 41
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date set forth above.

CITY OF PIEDMONT
By: Date:

Sara Lillevand, City Administrator

CONSULTANT
By: Date:

Attest
By:

John Tulloch, City Clerk
Approved As To Form
By:

Michelle Marchetta Kenyon, City Attorney
Attachment 2 Agenda Report Page 42

EV CHARGING
ONLY
'2127(17(5
'2127(17(5

EV CHARGING
ONLY

EV CHARGING
ONLY

EV CHARGING
ONLY
&
?8VHUV?MYLUUH\?2QH'ULYH6WDQWHF2IILFH?'HVNWRS?%XVLQHVV'HYHORSPHQW?(%&(?B3LHGPRQWGZJ 
30%\
9LUUH\-RKQ ZZZVWDQWHFFRP
%21,7$$9( 9,67$$9(

 6,7(3/$1 3,('0217&$
Not FinalPreliminary -
txeT
txeT
txeT
txeT
txeT
ttxxeeTT
txeT
txeT
txeT
txeT
txeT
txeT
txeT
Agenda Report Page 25 Attachment 3
Attachment 2 Agenda Report Page 43

EXHIBIT B

INSURANCE
The following minimum levels of insurance coverage shall be provided during the term of this Contract.

The City of Piedmont, its Council Members, directors, officers, agents and employees shall be named as additional insureds. EBCE shall provide Host with an additional insured certificate for each such insurance coverage.

A. Professional Liability Insurance. $2,000,000 per claim / $6,000,000 in aggregate
B. Worker¶s Compensation InsXrance. $1,000,000
C. Automobile Insurance $1,000,000
D. General Liability and Property Damage Insurance. $4,000,000 (single limit per occurrence)
EBCE shall notify Host within one (1) business day after it has been served or notified of any claim or legal action that in any way involves EBCE, and Host, even if Host is not named in the claim or as a defendant in any legal action, if such notification comes to EBCE from any source other than Host. EBCE shall also promptly provide Host, within the same time period set forth in the prior sentence, with copies of any document or information it has regarding such claim or legal action.

Attachment 2 Agenda Report Page 44
Attachment 2 – Examples of DCFC EV Chargers
Attachment 2 Agenda Report Page 45
Attachment 3 – Proposed Dual-Port Ground-Mounted EV Charging Station Location on Bonita Avenue Attachment 2 Agenda Report Page 46
City of Piedmont

COUNCIL AGENDA REPORT
DATE: May 16, 2022
TO: Mayor and Council
FROM: Sara Lillevand, City Administrator
SUBJECT: Consideration of an Appropriation of an Additional $30,000 to Fund the Electric Vehicle Charing Stations on Magnolia Avenue and Associated Civil Improvements Required to Meet American with Disabilities Act Requirements

RECOMMENDATION
Recommend that the City Council appropriate an additional $30,000 from the Facilities Maintenance Fund to fund the Electric Vehicle Charing Stations on Magnolia Avenue and associated civil improvements required to meet American with Disabilities Act (ADA) requirements.

BACKGROUND
On October 18, 2021, the City Council approved an agreement with East Bay Community Energy (EBCE) for the installation of four publicly accessible fast Electric Vehicle (EV) charging stations on Magnolia Avenue near the Exedra. The Council also approved a 90-minute parking restriction for the five on-street parking spaces by the EV chargers, including one space to account for American with Disabilities Act (ADA) requirements. The site will consist of either 4 single-port EV fast chargers (each 75 kilowatts) each serving one parking space, or 2 dual-port (each serving two parking spaces) and 2 single-port EV fast chargers.

Following the Council’s approval of the agreement, EBCE engaged their engineering contractor, Stantec, to conduct a site assessment and map out a conceptual design plan (see Exhibit A). The plan depicts four EV fast chargers occupying 5 parking spaces, including one ADA space. Like all non-maintenance improvements, ADA accessibility is a requirement for this project. Since the ADA improvements amount to less than 20% of the total project cost, an exception for an undue hardship for a reasonable accommodation would not be appropriate.

The ADA space will occupy two of the existing diagonal parking spaces. To be ADA compliant, minor civil improvements in the area adjacent area to the ADA space must be made, including expansion of the sidewalk approximately four feet into the park, and expediting replacement of the banner pole. Replacement of the banner pole is overdue, had previously been scheduled, and has been budgeted under a separate project in Fiscal Year 2022-23.

Attachment 3 Agenda Report Page 47

FISCAL IMPACT AND PROJECT SCHEDULE
During the October 18, 2021 City Council meeting, the Council approved the appropriation of up to $75,000 from the General Fund to fund costs above EBCE’s maximum allocation of $306,660, for a total authorized budget of $381,660. If project costs exceeded $381,660, staff would return to Council to seek authorization for additional funding to cover the project cost difference. Based on the conceptual design plan, the total project cost is estimated at $410,000. Of these costs, the electrical work is estimated to cost $320,000, site improvements are estimated to cost $30,000 and ADA accessibility is estimated to cost $60,000. The total cost of the project includes all civil work shown in Exhibit A, including electrical infrastructure, EV chargers, and PG&E fees associated with engineering and construction. According to the project team, utility fees may vary and there have been construction price increases of 5-8% every 3 months due to inflation and fluctuations in product availability. As the project costs now exceed the approved authorization, staff are seeking $30,000 in additional funds from the Facilities Maintenance Fund to cover the cost difference.

Should the project proceed, it is anticipated that construction will occur in winter 2022-23.

CONCLUSION AND NEXT STEPS
Should the Council agree to authorize the appropriation of an additional $30,000 from the Facilities Maintenance Fund to cover the cost difference, EBCE will move forward with issuing a public notice advertising the Public Work Bid Specifications.

ATTACHMENTS
Pages
Exhibit A 3 Conceptual Site Plan
Online October 18, 2021, City Council EV Charging Stations Staff Report By:

Alyssa Dykman, Sustainability Program Manager
Daniel Gonzales, Director of Public Works
Attachment 3 Agenda Report Page 48
Attachment 3 Agenda Report Page 49