CHARGING STATION SITE LICENSE AGREEMENT
This CHARGING STATION SITE LICENSE AGREEMENT (the "Agreement"), dated - (the "Effective Date"), between CITY OF RIVERSIDE, a
California municipal corporation whose address is 3900 Main Street, , Riverside, California 92522, and ELECTRIFY AMERICA, LLC, a Delaware limited liability company ("Licensee"), whose address is 2003 Edmund Halley Drive, Suite 200, Reston, Virginia 20191.
RECITALS
A. Licensee wishes to create electric charging stations for electric vehicles throughout the United States at various locations;
B. Licensor desires to participate in Licensee's network of charging stations for electric vehicles in the United States;
C. This Agreement sets forth the parties agreement with respect to Licensor's license to Licensee.
AGREEMENT
1. Basic Provisions.
(a) Property. Licensor is the owner of the property commonly known as Riverside - University Avenue & Market Street, located at 3750 University Avenue, Riverside, California 92501, and legally described in Exhibit "A", attached hereto and made a part hereof (the "Property").
(b) License Premises. Licensor hereby licenses to Licensee approximately one housand one hundred thirty-four (1,134) square feet, which will result in six (6) electri vehicle ("EV") charging parking spaces and approximately five hundred forty (540) squar feet of landscaped or paved space for equipment (the "License Premises") on the Property and as depicted on Exhibit "B" attached hereto, together with all related equipment. il order to build an electric vehicle charging station ("Charging Station) to charge electri vehicles.
Fee. Licensee hereby agrees to pay Licensor a license fee (the "Fee") equal to Seventy and 00/100 Dollars ($70.00) per EV charging parking space per month, starting on the Term Commencement Date (as defined below), and continuing until the Expiration Date (as defined below) as consideration for the Agreement herein. The Fee shall be increased annually on the anniversary date of the Effective Date by the rate of three (3) percent.
(d) Term. The term ("Term") of this Agreement shall commence on the Effective Date and end on the date that is ten (10) years from the Term Commencement Date (as extended from time to time, the "Expiration Date"). (e) Term Commencement. The "Term Commencement Date" shall mean the Confidential
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date on which the Charging Station is first operational, or eighteen (18) months after the Effective Date, whichever is earlier. Licensee shall deliver written notice to Licensor as soon as practicable following the operational date of the Charging Station to confirm the date for recordkeeping purposes.
(f) Extension. Two (2) options to extend the Term for a period of five (5) years, as set forth in Section 3 below.
(g) Expansion. The right to expand the License Premises to include an additional 1,170 of adjacent square feet, as set forth in Section 4 below and on Exhibit B. (h) This Agreement covers only the License Premises and the areas contiguous thereto that are reasonably necessary to provide access to and from the License Premises and the Charging Station for the purpose of the construction, installation, maintenance, repair and operation of the Charging Station, by Licensee, together with any ancillary uses permitted herein, all in accordance with this Agreement.
2. Termination.
(a) By Licensee. Licensee shall have the right to terminate this License at any time upon thirty (30) days prior written notice. In connection with any early termination, the Licensee shall comply with the Surrender obligations set forth below. (b) By Licensor for Cause. This Agreement may be terminated by Licensor if the Licensee breaches or fails to perform any of its obligations in any material respect, and such breach or failure continues uncured for thirty (30) days after receipt of written notice. (c) Surrender. Promptly following the expiration or termination of this Agreement, Licensee shall remove the Charging Station from the License Premises and restore the License Premises to its former condition, excluding ordinary wear and tear; provided, however, that any underground electrical wiring shall be capped off and secured, but not removed. For the avoidance of doubt, Licensee will not remove any equipment installed by a utility.
No Further Obligations. Upon any termination pursuant to this Section, both parties are relieved of any further obligations contained in this Agreement, except for those that by their nature survive or may require performance after termination (e.g., indemnity.
3. Option to Extend. Licensee shall have the options identified in Section 1(f) above to renew this Agreement upon providing Licensor with not less than sixty (60) days and no more than one hundred eighty (180) days prior written notice of its intent to extend. In the event Licensee extends this Agreement, this Agreement shall continue based upon the identical terms and conditions hereof, except that the parties shall negotiate in good faith the licensee fee provided in section 1(c).
4. Expansion Option. Licensee shall have the right to license the additional adjacent square feet identified in Section 1(e) (the "Expansion Premises") for EV charging parking spaces upon the same terms and conditions as the License Premises. In the event Licensee wishes to exercise such option to expand the additional parking spaces, it shall provide written notice to Confidential
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Licensor. Licensor shall permit Licensee to prepare plans and specifications for such additional space, pull the permits, and upon receipt of permits, build out such additional spaces with additional charging stations, at which time, such additional space shall be part of the License Premises. Licensee shall receive written approval from Licensor prior to preparing such plans and specifications, which shall not be unreasonably withheld or delayed. Approval by the Licensor shall not relieve Licensee from the obligation of obtaining any other necessary permits or approval from other City departments or governmental agencies having jurisdiction. In the event Licensee exercises such expansion option, the Fee will be increased by Seventy and 00/100 Dollars ($70.00) for each additional EV charging parking space in the Expansion Premises for the remainder of the Term.
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Charging Station.
(a) Installation. Upon execution of this Agreement, Licensor shall deliver possession of the License Premises to Licensee, and Licensee shall, at its sole cost and expense, construct the improvements described in and pursuant to the procedures set forth in Exhibit "B" attached hereto and made a part hereof. The design, make, model, and manufacturer of the Licensee charging stations and their number and approximate locations are specified in Exhibit "B". Licensee may, at any time and for any reason during the term of this Agreement, elect to upgrade, revise, alter, or swap any Charging Station installed in the Premises. In the event permits are required in connection with any such upgrade, revision, alteration, or swap, Licensee shall obtain Licensor's prior written approval of the plans and specifications thereof, which approval shall not be unreasonably withheld, conditioned, or delayed. Licensee shall provide no less than thirty (30) days' prior written notice to Licensor prior to beginning any work to upgrade, revise, alter, or swap any Charging Station installed on the Premises if such work requires a permit. If a building permit is required for the work, a copy of the building permit shall be included in the notice. (b) Construction. Licensee is solely responsible for supervising the construction and installation of the Charging Station, and shall have control over construction, scheduling, and installation means, methods, techniques, sequences, and procedures, including the coordination of all work. Before commencing installation of the Charging Station at the License Premises, Licensee shall give a copy of the anticipated construction schedule and installation plans to Licensor for its approval, which approval shall not be unreasonably withheld, conditioned or delayed. No work will begin until plans have been approved by Licensor and all applicable permits and certifications have been obtained. Once approved, and after Licensee has provided Licensor with all necessary insurance certificates required by this Agreement, Licensee will, at its sole cost and expense, oversee and manage the installation of the Charging Station, 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; and installation of all Licensee branded signage. Licensor shall allow Licensee and Licensee's agents to stage equipment in reasonable proximity, which shall be reasonably determined solely by the Licensor, to the License Premises to facilitate Licensee's construction at the Property; provided such staging shall not unreasonably interfere with Licensor's use of the Property. Licensee shall be permitted to reconfigure the existing parking spaces on the License Premises to meet the needs of Licensee and Licensee's end users. For the avoidance of doubt, reconfiguring of parking spaces shall include, among other things, the right to reduce the number of striped parking spaces, if necessary, to promote the efficient and legal use of the EV charging parking spaces.
Permits. Licensee will, at its sole cost and expense, obtain from applicable governmental authorities all licenses, permits, or other approvals required to install the Charging Station, and Licensor will reasonably cooperate upon request with Licensee's Confidential
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efforts to do so. Licensor shall provide such other reasonable assistance to Licensee where needed, including, without limitation, creating any necessary easement agreements with any utility provider where necessary, as determined by Licensee in its reasonable discretion. Licensor will provide staffing support to meet with Licensee at the License Premises as needed, and cooperate generally with Licensee during the planning, permitting, and construction of the Charging Station.
(d) No Liens. Licensee will not permit or suffer any mechanic's or materialmen's or construction liens to attach to the License Premises as a result of the installation of the Charging Station. If such a lien attaches to the License Premises, Licensee shall remove or bond over such lien at Licensee's sole cost and expense, within twenty (20) days of Licensee receiving written notice thereof from Licensor.
Licensor at any time may post and keep posted on the License Premises appropriate notices to protect Licensor against the claims of any persons, firms or corporations for work done, labor performed, or materials furnished to the License Premises. Before commencing the initial construction and installation of the Charging Station, Licensee shall notify Licensor in writing of the expected date of the commencement of such work so that Licensor can post and record the appropriate notices of non- responsibility to protect Licensor from any mechanics' liens, materialmen's liens, or any other liens.
(e) Ownership by Licensee. Licensee shall either own or have a valid leasehold interest in the Charging Station, and as such, as between Licensor and Licensee, the Charging Station shall remain the sole property of the Licensee at all times, and Licensee shall have the right to remove all or a portion of the Charging Station at any time during the term of this Agreement, whether or not the Charging Station is considered a fixture and attached to the License Premises under applicable laws.
Charging Station Definition. For purposes of this Agreement, "Charging Station" shall mean all electrical and mechanical equipment, hardware, and software installed by Licensee, electrical wiring and/or cabling, equipment infrastructure, Licensee's signage and all supporting equipment, including without limitation concrete pads, protective bollards, and, if elected to be constructed by Licensee, a canopy covering the Premises.
(g) Additional Services. Subject to Licensor's prior written approval, Licensee may provide at the License Premises other ancillary or additional services to the Charging Station, as Licensee may elect to offer its customers from time to time during the Term.
Additionally, Licensee and its employees and vendors may perform security assessments and install (or add additional) reasonable security features at the License Premises, including, without limitation, lighting and cameras.
(h) Right to Tow. Licensee retains the right to remove any vehicle from the License Premises at any time and for any reason at Licensee's sole cost, in accordance with Confidential
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applicable law.
6. Operation and Maintenance. Except as otherwise provided in this Agreement, Licensee will, at its sole cost and expense, maintain and operate the Charging Station, including making all necessary maintenance, repairs, and replacements. The Charging Station and signage shall be kept in a clean, safe, and orderly condition and appearance free from damage, vandalism, and graffiti. Licensee shall promptly remediate vandalism and graffiti upon notice thereof.
7. Access. Licensee's customers shall have access to the License Premises twenty four (24) hours per day, seven (7) days per week, and 365 days per year. After the first ninety (90) minutes of parking, which will be free of cost, Licensee's customers will be required to pay the usual parking fee for use of the Property, including while parked in the License Premises. Licensee and its employees and vendors may, at any time during the Term, access the License Premises to maintain, inspect, repair or replace any portion of the Charging Station pursuant to its obligations under this Agreement.
8. Right to Relocate. Should Licensor desire to relocate Licensee on the Property, Licensor may do so as provided in this Paragraph 11. At Licensor's sole cost and expense reimbursable to Licensee, Licensor may require Licensee to relocate to other premises ("New Premises") within the Property; provided however, Licensor shall have no right to relocate Licensee for the purpose of leasing or licensing the License Premises to a tenant that will operate the License Premises as an electric vehicle charging station or so that Licensor may operate an electric vehicle charging station on the Premises. The New Premises will be reasonably comparable in location, proximity to the main entrance to the facility, size, visibility, and layout to the License Premises at Licensor's sole cost and expense, as the License Premises as of the date of Licensor's Notice (hereinafter defined). Licensor will reimburse Licensee all reasonable costs Licensee incurs to move Licensee's fixtures and equipment to the New Premises as well as costs incurred to secure new power at the New Premises. In the event Licensor elects to exercise the right of relocation, Licensor shall deliver written notice to Licensee identifying the location of the proposed New Premises at least one hundred twenty (120) days' prior to the date that Licensee is required to relocate to the New Premises ("Licensor's Notice"). Licensee shall have no obligation to vacate the License Premises until the New Premises is commissioned and fully operational.
9. Signage. Licensee may install signage on the Licensed Premises as set forth in the sign plan attached hereto as Exhibit "C. Licensee agrees that all signage shall be installed in accordance with all laws, rules and ordinances. If Licensee desires to install signs on the Property outside of the Licensee Premises, the installation shall be subject to the prior written consent of Licensor, which shall not be unreasonably withheld. In the event Licensee decides to install signage materially different from the signage set forth in Exhibit "C", Licensee shall obtain Licensor's prior written consent, which shall not be unreasonably withheld, conditioned, or delayed. For purposes of this Section 9, modifications to signage to comply with applicable laws, rules, or ordinances will not be considered material.
10. Licensor Obligations regarding Property/Premises. Licensor shall, at its sole cost and expense, take all actions necessary to maintain the License Premises in a clean, safe, and orderly condition, to at least the same standard as it customarily maintains the common areas at Confidential
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the Property, including, without limitation, parking lot sweeping, parking lot snow and ice removal, parking lot repaving and restriping, and maintenance and repair of curbs, gutters and landscaping features at the Property. Licensor shall also be responsible, at its sole cost and expense, for the Property continuously being in compliance with all state and local parking laws, ordinances, requirements and rules, including, but not limited to, those relating to parking density should same be impacted by the installation of electric vehicle parking spaces as contemplated herein. Licensor shall be liable for any damage caused to the License Premises, including each Charging Station, which may be caused, directly or indirectly, by the gross negligence or willful misconduct of Licensor, its employees, agents, contractors, or representatives. To the extent Licensor has actual knowledge of vandalism, Licensor shall promptly notify Licensee. For the avoidance of doubt, Licensor shall be under no obligation to maintain the Charging Station, signage or any other equipment installed by Licensee within the Premises. However, if Licensor restripes the parking lot, inclusive of the License Premises, Licensor shall restripe the License Premises in a manner identical to Licensee's striping scheme in effect immediately prior to the restriping.
11. Utility Availability. Licensee shall be responsible for all electricity costs of the Charging Station. Licensee shall, at its sole expense, ensure that the Charging Station contains separately-metered electricity with Licensee as the customer of record for such meter. Licensee may charge its end users for electrical usage if market conditions permit. Licensor shall cooperate with Licensee to obtain electricity and any other utilities necessary to operate the Charging Station, including by granting appropriate easements to local utility providers; provided, however, that Licensor is not required to pay money to satisfy the requirements of the utility provider or Licensee associated with the provision of such utilities, including where Licensor and the local utility provider are the same entity. Neither Licensor nor Licensee has any responsibility or liability for interruption, curtailment, failure, or defect in the supply or character of utilities furnished to facilities or equipment located at the License Premises, unless the cause of the interruption is covered by such party's indemnity provided for in Sections 23 and 24.
12. Possessory Interest Taxes / Personal Property Taxes. Licensee is solely responsible for personal property taxes imposed on the Charging Station, and any other equipment installed by it at the Premises. Licensee recognizes and understands that this License may create a possessory interest subject to property taxation and that the Licensee may be subject to the payment of property taxes levied on such interest. Licensee agrees to pay or reimburse the Licensor for any and all taxes and assessments charged or assessed on the land and improvements described in this License and on Licensee's possessory interest therein together with all penalties and fees, if applicable, during the term of this License including any holding over period prior to any installment thereof becoming delinquent. Any such tax payment shall not reduce any payment due the Licensor hereunder. If Licensee shall, in good faith, desire to contest the validity, the imposition, or the amount of any tax or assessment or any other governmental charge herein agreed to be paid by Licensee, Licensee shall be permitted to do so; provided, however, the Licensee shall not permit or allow any lien to be placed or assessed upon the real property or any improvements thereon.
13. Ownership of Drawings and Other Documents. All documents prepared by or Confidential
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under the direction of Licensee pursuant to this Agreement, including, without limitation, drawings, plans, and specifications, including those in electronic format, are solely and exclusively owned by Licensee, and Licensee retains all common law, statutory and other reserved rights, including the copyright. The parties agree between them that the Licensee has and retains ownership of all of such Licensee's Intellectual Property rights therein, and Licensor has no right, and shall not obtain any right, in any Licensee Intellectual Property.
As used in this Agreement, "Intellectual Property" means all copyrights, patents, trademarks and service marks, names, logos, designs, domain names, charger station equipment names, all registrations for copyrights, patents, trademarks and service marks/names, domain names, trade secrets, know-how, and all unique concepts, information, data and knowledge that is eligible for legal protection under applicable laws as intellectual property, whether protected through confidentiality, registration or pending registration, regardless of form, whether disclosed in writing, electronically, orally or through visual means, whether learned or obtained orally, through observation, through the discharge of responsibilities under this Agreement, or through analysis of that information, data or knowledge.
14. Publicity. Neither party will use the other party's name, trademark or logo without such other party's prior written consent. If mutually agreed in writing, Licensee and Licensor may make general press releases and statements, hold press conferences, both through traditional and electronic media, including websites created by Licensee or other third parties, regarding the existence of the Charging Station and the status of the activities contemplated by this Agreement; provided that all such press releases and statements and press conferences shall be approved in advance by Licensor and Licensee. Nothing herein shall be deemed to require Licensor's consent to Licensee's disclosure of the location of the Charging Station to the general public in any manner, including via an application to permit electric vehicle owners, users and lessees to locate places to charge their vehicles. Licensor shall disclose the location of the Charging Station to the general public as part of a standard Property site map and/or directory.
15. Licensor and Licensee Representations and Warranties. Each of Licensor and Licensee hereby represent and warrant to the other as of the Effective Date that: (a) it has all necessary power and authority to execute, deliver, and perform its obligations hereunder; (b) the execution, delivery, and performance of this 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, rule, regulation, order, judgment, or other legal or regulatory determination applicable to it; (c) there is no pending or, to its knowledge, threatened litigation or administrative proceeding that may materially adversely affect its ability to perform this Agreement; (d) it is duly organized and validly existing under the laws of the jurisdiction of its organization or incorporation and, if relevant under such laws, in good standing; (e) this Agreement constitutes a legal, valid and binding obligation of such party, except as the enforceability of this Agreement may be limited by the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally and by general principles of equity; and (f) at all times during the Term, it will comply with all federal, state, and local laws, rules, Confidential
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regulations (including, without limitation, all zoning ordinances and building codes) in performing its obligations under this Agreement.
16. Licensor Representations, Warranties and Covenants. Licensor represents that it is the owner of the Property and that this Agreement does not violate any agreement, lease or other commitment of Licensor. Licensor covenants that it shall not take any action that would interrupt the use of the License Premises or the Charging Station. Licensor further represents, warrants and covenants that it has obtained or it shall obtain any and all consents or approvals required in order for Licensor to enter into this Agreement and other rights and performance obligations under this Agreement, including, but not limited to consent from Licensor's first lien holder to this License and any easements required herein, if necessary or required by such lien holder.
17. Environmental Compliance. Licensor hereby represents, warrants and covenants that the Property is in compliance with all environmental laws, rules and regulations relating to health, safety and/or environmental conditions on, under or around the Property, including without limitation: CERCLA, the Resource Conservation and Recovery Act, and all state and local counterparts thereto, and any regulations or policies promulgated or issued thereunder ("Environmental Laws") and that there are no Hazardous Materials on the Property. In the event Licensee discovers Hazardous Materials on the Property and/or the License Premises while preparing for the installation of the Charging Station, Licensor and Licensee hereby acknowledge that Licensee shall have no liability for such Hazardous Materials, and that Licensee shall have no obligation to remediate the Property such that it is in compliance with Environmental Laws, all of which shall be the responsibility of Licensor, except where the presence of Hazardous Materials was caused by Licensee, its agents, employees or contractors. Additionally, in the event Hazardous Materials are found at the Property by Licensee, except where the presence of Hazardous Materials was caused by Licensee, its agents, employees or contractors, or Licensee determines that the Property is not in compliance with Environmental Laws, except where caused by Licensee, its agents, employees or contractors, Licensee may, at its election: (a) require Licensor to remediate the Property in compliance with all governing laws; (b) relocate to a premises of similar size, location, and visibility elsewhere on the Property, at Licensor's cost and expense, provided that an alternate location on the Property is available and feasible for Licensee's use and will not interfere with Licensor's use of the Property, as determined by Licensor; or (c) terminate this Agreement immediately and remove the Charging Station and its equipment from the License Premises, at the cost and expense of Licensor, and Licensee shall have no further responsibility pursuant to the terms of this Agreement. The term "Hazardous Materials" means and includes any substance, material or waste listed or defined as hazardous or toxic, or as a pollutant or contaminant under any Environmental Laws, including asbestos, petroleum products and crude oil.
18. Licensee Insurance.
Licensee shall obtain and keep in full force and effect during the entire term of this Agreement, commercial general liability and property damage insurance with a minimum limit of $1,000,000 per occurrence. Licensee agrees to deposit with Licensor upon execution of this Agreement by Licensor, Confidential
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certificates of insurance evidencing the required insurance with coverage at least equal to the above types and amounts as a minimum, and further agrees to file certificates with Licensor during the entire term of this Agreement showing continued coverage.
To be acceptable, the insurance coverage must meet the following requirements:
Such policys) must provide that the policy shall not be canceled or materially changed unless thirty (30) days' prior written notice thereof by certified or registered mail has been given to (b) The commercial general liability policy must provide that Licensor shall be named as additional insured as respects all operations of the insured, which insurance shall be primary insurance and not contributing with any other insurance available to the Licensor under any other third party liability policy or any self-insurance retention. Endorsement No. CG 20010413 shall be provided to the Licensor.
The commercial general liability policy shall contain either a provision for a broad form of contractual liability including leases, or an endorsement providing for such coverage.
Each policy must be placed with a company authorized to do business in the State of California, having a policy holder rating of A or higher and a Financial Class of at least VIl or higher.
Licensor shall have the right at any time during the term of this Agreement to review the type, form, and coverage limits of the insurance enumerated herein. If, in the opinion of Licensor reasonably obtained, the insurance provisions in this Agreement are not sufficient to provide adequate protection for Licensor and the members of the public using the Property, Licensor may require Licensee to maintain insurance sufficient to provide such adequate protection.
Licensor shall notify Licensee in writing of any change in the insurance provisions necessary to provide adequate protection.
If Licensee does not deposit acceptable certificate of valid insurance policies acceptable in form and content to Licensor, incorporating such changes, within sixty (60) days of receipt of such notice, this Agreement shall be in default without further notice to Licensee and Licensor shall be entitled to all legal remedies provided herein.
The procuring of such policy of insurance shall not be construed to be a limitation upon Licensee's liability nor as a full performance of its part of the indemnification provisions of this Agreement.
Licensee's obligation being, notwithstanding said policy or policies of insurance, the full and total amount of any damage, injury or loss caused by the negligence or neglect connected with the operation under this Agreement.
Licensee shall provide a valid certificate of insurance and additional insured endorsement prior to occupying the License Premises under this Agreement. No policy shall be acceptable unless first approved by the Licensor's Risk Manager.
(e). WORKERS' COMPENSATION. Licensee shall obtain and maintain in full force and effect during the term of this Agreement workers' compensation insurance coverage in accordance with the City of Riverside/University Ave & Market Street/
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provisions and requirements of the Labor Code of the State of California and any other applicable law.
A certificate of insurance evidencing such coverage shall be filed with the City Clerk of Licensor, which certificate shall provide that Licensor will be given at least thirty (30) days' notice prior to cancellation.
19. Licensor Insurance.
(a) During the term of this Agreement, Licensor shall maintain in full force and effect, at its cost and expense, the following coverages and amounts of insurance:
(i) Full replacement cost Property Insurance (written on an "special perils" basis) for (1) the Property and all improvements thereon (including without limitation the License Premises and all electrical infrastructure for the Charging Station); and (2) all personal property, machinery, equipment and trade fixtures located at the Property or owned by Licensor; and
(ii) Commercial General Liability insurance with a minimum combined single limit of liability of at least $2,000,000 for personal injuries or deaths of persons occurring in or about the License Premises and Property. (b) Upon Licensee's written request, Licensor shall provide Licensee with a certificate of insurance and endorsement, evidencing the required coverages, stating that the insurance is primary with regard to Licensor and naming Licensee as an additional insured. Licensor shall have the right to "self insure" all or any portion of the foregoing insurance obligations.
20. Intentionally Omitted. :
21. Waiver. Anything in this Agreement to the contrary notwithstanding, to the extent covered by any property insurance maintained (or required to be maintained) hereunder, each party hereby waives every right or cause of action for any and all loss of, or damage to (whether or not such loss or damage is caused by the fault or negligence of the other party or anyone for whom said other party may be responsible the Property, the License Premises, the Charging Station and/or the personal property of either party, or their respective affiliates, representatives, agents, officers, directors, managers, members, shareholders, partners, contractors, or employees, regardless of cause or origin. These waivers and releases shall apply between the parties and they shall also apply to any claims under or through either party as a result of any asserted right of subrogation.
22. Casualty and Condemnation.
(a) Damage. If the License Premises, any portion of the Charging Station or any portion of the Property that adversely affects the use of the Charging Station is damaged by fire or other casualty, then either Licensor or Licensee may, within thirty (30) days of the date of such fire or other casualty elect to terminate the Agreement on written notice to the other party. If Licensee elects to repair its property, it shall restore, rebuild, or Confidential
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replace those portions of the Charging Station in the License Premises and any other property damaged as a result of such fire or other casualty to its prior or better condition as necessary, and all property insurance proceeds of Licensor applicable to the License Premises shall be made available to Licensee in connection with such repair and restoration. If Licensee elects to terminate the Agreement, it shall remove all of Licensee's property from the License Premises in accordance with Section 5 of this Agreement. Any repair and restoration required by Licensee under this Section 24 shall commence within sixty (60) days of the date Licensee elects to repair and restore the License Premises and shall be completed no later than 120 days thereafter, if reasonably possible. (b) Condemnation/Taking. If any portion of the License Premises or Property is condemned or taken in any manner for a public or quasi-public use that could adversely affect the use of the Charging Station, then Licensee may elect to terminate this Agreement effective as of the date title to the condemned portion of the Property is transferred to the condemning authority. If Licensee does not elect to terminate, the parties will use commercially reasonable efforts to find an alternate location for the Charging Station elsewhere on the Property. The costs of the relocation of the Charging Station shall be paid by Licensee. Licensee may file a separate claim to the condemning authority for any relocation award made as a result of such condemnation; provided, however, in no event shall such claim reduce Licensor's award related to the condemnation or taking. (c) Suspension of Term. During any time that the Charging Station or any portion of the License Premises is under repair or being relocated pursuant to a casualty or condemnation, the Term shall be temporarily suspended on a day-for-day basis.
23. Licensee's Indemnity. Subject to Section 24 and Section 25, Licensee shall indemnify and hold harmless Licensor, its directors, employees, and agents 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 breach by Licensee of its obligations, representations or warranties under this Agreement, or (ii) the operation of the Charging Station during the Term, except to the extent arising out of or resulting from any willful misconduct or sole gross negligence of Licensor or any installation activities conducted by a contractor or other service provider designated by Licensor, excepting any claims arising out of Licensor's active negligence or willful misconduct. The obligations of Licensee under this Section shall survive the expiration, cancellation, or termination of this Agreement and Term.
24. Licensor's Indemnity. Subject to Section 23 and Section 25 hereof, Licensor shall indemnify and hold harmless Licensee, its affiliates, and their respective representatives, agents, officers, directors, shareholders, partners and employees from and against all third party Losses that arise out of or result from (i) any willful misconduct or active negligence of Licensor in connection with this Agreement or (ii) any breach by Licensor of its obligations, representations or warranties under this Agreement. The obligations of Licensor under this Section shall survive the expiration, cancellation, or termination of this Agreement and the Term.
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25. Limitation of Licensor and Licensee Liability. In no event shall either party be liable (in contract or in tort, including negligence and strict liability) to such other party or to such other party's affiliates or their respective representatives, agents, officers, directors, shareholders, partners or employees for any special, indirect or consequential damages relating to this Agreement. The entire liability of each party for any and all claims of any kind arising from or relating to this Agreement will be subject in all cases to an affirmative obligation on the part of the other party to mitigate its damages. Each party's total liability for any and all liability to the other party and to such other party's affiliates or their respective representatives, agents, officers, directors, shareholders, partners or employees (on an aggregate basis) arising out of or in connection this Agreement whether in contract or in tort (including negligence and strict liability) shall not exceed the greater of ONE MILLION DOLLARS ($1,000,000.00) or, if insurance coverage is applicable, the insurance coverage limits required under this Agreement. The provisions of this Section 25 shall apply to the full extent permitted by law and shall survive termination of this Agreement. This section shall not apply to claims of any kind for personal injury.
26. Default. Each of the following shall constitute an "Event of Default" by Licensor or Licensee, as applicable, under this License:
(a) The failure by either Licensee or Licensor to perform or observe any material term or condition of this Agreement and such failure continues for a period of thirty (30) days after receipt of written notice thereof, provided however, that if the nature of such default is such that the same cannot be reasonably cured within said thirty (30) day period, then Licensee or Licensor, as applicable, shall have such additional time as is reasonably required to cure such failure, provided, Licensee or Licensor commences to cure such failure within such 30 day period and proceeds to cure such failure with diligence and continuity; or (b) The appointment of a receiver or trustee to take possession of all or substantially all of the assets of Licensee or Licensor located at the License Premises if possession is not restored to Licensee or Licensor, as applicable, within sixty (60) days; or a general assignment by Licensee or Licensor for the benefit of creditors; or any action or proceeding commenced by or against Licensee or Licensor under any insolvency or bankruptcy act; or under any other statute or regulation having as its purpose the protection of creditors and in the case of involuntary actions filed against the Licensee or Licensor the same are not discharged within 60 days after the date of commencement.
27. Remedies. Licensor and Licensee acknowledge and agree that each party shall have all remedies available at law or in equity if the other party is in default under the terms of this Agreement. If an Event of Default has occurred and is continuing, then Licensor or Licensee, as applicable, in addition to any other remedies given at law or in equity may (a) bring an action to recover and regain possession of said License Premises in the manner provided by the laws of eviction of the State where the License Premises are located then in effect, or (b) seek damages for breach of this Agreement.
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28. Brokers. In the event Licensor or Licensee utilizes a broker in connection with this transaction, the party that is responsible for engaging such broker shall indemnify and hold harmless the other party for any commissions and/or fees due or owing. The payment of any such commission and/or fee shall be the subject of a separate, independent agreement between such party and the broker.
29. Survival of Covenants. The covenants, representations and agreements of Sections 13, 14, 21, 23, 24, 25, and 29 shall survive the expiration, termination or cancellation of this Agreement, regardless of reason.
30. Notice. Any notice provided or permitted to be given under this Agreement must be in writing and be served either by (i) deposit in the mail, addressed to the party to be notified, postage prepaid, and registered or certified, with a return receipt requested, or (i) 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. For purposes of notice the addresses of the parties shall be as follows:
If to Licensee:
Electrify America, LLC
2003 Edmund Halley Drive, Suite 200
Reston, Virginia 20191
Attention: Brandy Mathie
With a copy to (which shall not constitute notice):
Electrify America, LLC
2003 Edmund Halley Drive, Suite 200
Reston, Virginia 20191
Attention: Emily Durham, Esq.
If to Licensor:
City of Riverside
3900 Main Street
Riverside, California 92522
Attention: General Manager,
Public Utilities Department
With a copy to (which shall not constitute notice):
City of Riverside
3901 Orange Street
Riverside, California 92501
Attention: Staci Sullivan
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Each party may change its address for notice by giving notice thereof to the other party.
31. Assignment. This Agreement is binding on and inures to the benefit of the parties and their respective heirs, successors, assigns, and personal representatives. Neither party may assign its rights and obligations in and under this Agreement, nor sublet the License Premises or any part thereof, without first obtaining prior written consent of the other party, which may be withheld in such party's sole discretion; provided, however, that either party may assign its rights and obligations in and under the Agreement to an affiliate, subsidiary or successor by merger or acquisition or successor to all or substantially all of the assets of such party at any time and without consent, provided that notice pursuant to section 30 hereof is provided to the other party.
32. Miscellaneous.
Force Majeure. Neither party is responsible for any delay or failure in performance of any part of this Agreement to the extent that delay or failure is caused by fire, flood, explosion, war, embargo, government requirement, pandemic, civil or military authority, act of God, act or omission of carriers or other similar causes beyond the party's (b) Governing Law. This Agreement shall be governed by and interpreted in accordance with the internal laws of the State in which the License Premises is located without giving effect to conflict of law rules.
(c) 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. A waiver or estoppel given in any one instance does not constitute a waiver or estoppel with respect to a later obligation or breach. (d) No Third Party Beneficiaries. This Agreement does not confer any rights or remedies on any person other than the parties and their respective successors and permitted assigns.
(e) Remedies. The rights and remedies provided by this Agreement are cumulative, and the use of any right or remedy by any party does not preclude or waive its right to use any or all other remedies. These rights and remedies are given in addition to any other rights a party may have under applicable law, in equity or otherwise. (f) Severability. If any term of this Agreement is held by any court of competent jurisdiction to contravene, or to be invalid under, the laws of any political body having jurisdiction over this subject matter, that contravention or invalidity shall not invalidate the entire Agreement. Instead, this Agreement shall be construed as reformed to the extent necessary to render valid the particular provision or provisions held to be invalid, consistent with the original intent of that provision and the rights and obligations of the Confidential
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parties shall be construed and enforced accordingly, and this Agreement shall remain in full force and effect as reformed.
(g) Integration; Amendments. It is agreed and understood that this Agreement contains all agreements, promises and understandings between the parties, and that there are no verbal or oral agreements, promises or understandings between the parties. Any amendment, modification or other change to this Agreement shall be ineffective unless made in a writing signed by the parties hereto.
Counterpart/Electronic Execution. This Agreement may be executed in any number of counterparts with the same effect as if all the parties had signed the same document; all counterparts shall be construed together and shall constitute one and the same instrument. The delivery of an executed counterpart to this Agreement by electronic means (including via email) shall be as effective as the delivery of a manually executed counterpart.
(i) Time is of the Essence. Time is of the essence in this Agreement.
In witness whereof, the parties hereto execute this Agreement as of the date first above written.
LICENSOR: LICENSEE:
CITY OF RIVERSIDE, ELECTRIFY AMERICA, LLC,
a California municipal corporation a Delaware limited liability company By:
City Manager Name:
Title: President & CEO
By ALB
Attest:
Name: Alvin Brown
City Clerk
Title: Senior Manager - Controlling
- Commercial & Investment
Approved as to Form:
Deputy City Attorney
1 1
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DocuSign Envelope ID: E3EFED6E-0079-4E06-934C-6AD1348FDA12
EXHIBIT A
PROPERTY
Real property in the City of Riverside, County of Riverside, State of California, described as follows:
APN #: 009-620-004
2.51 ACRES M/L IN POR PARS 1, 2, 3 & 4 PM 075/037 PM 14855 Confidential
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DocuSign Envelope ID: E3EFED6E-0079-4E06-934C-6AD1348FDA12
EXHIBIT B
PREMISES
Confidentiall
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DocuSign Envelope ID: E3EFED6E-0079-4E06-934C-6AD1348FDA12 ELECTRIC VEHICLE CHARGING SITE PLAN electrify
america
DISPENSERS AND EQUIPMENT
TO BE INSTALLED ON GROUND
FLOOR IN FORMER BANK DRIVE
THROUGH AREA
bars!
CITY OF RIVERSIDE
PROPERTY NAME: UNIVERSITY AVE & MARKET ST DATE: 06/15/2023 ADDRESS: 3750 UNIVERSITY AVE PDM NAME: KARA SMITH
CITY, STATE ZIP: RIVERSIDE, CA 92501 PDM PHONE #: 571-352-9624 SITE ID: TBD UTILITY: CITY OF RIVERSIDE
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DocuSign Envelope ID: E3EFED6E-0079-4E06-934C-6AD1348FDA12
SPECIFICATIONS & DESIGN LAYOUT
-120
STANDARD DESIGN
DISPENSER DESIGN FOR
ILLUSTRATION PURPOSES ONLY
STANDARD DESIGN FIT: CALIFORNIA METRO ANGLED BACK TO BACK 4 DISPENSERS
NUMBER OF EV PARKING SPACES (DISPENSERS)
NUMBER OF EXISTING PARKING SPACES REQUIRED FOR EV PARKING (DISPENSERS) 3 future
NUMBER OF EXISTING PARKING SPACES REQUIRED FOR EQUIPMENT PAD, TRANSFORMER, BATTERY
TOTAL NUMBER OF EXISTING PARKING STALLS REQUIRED FOR PROJECT
EXISTING PARKING SPACE WIDTH (SINGLE SPACE) NA
EXISTING PARKING SPACE DEPTH 18'
DRIVE AISLE WIDTH 15'
PARKING SPACE SLOPE (ALONG WIDTH / DEPTH) <2%
CITY OF RIVERSIDE, UNIVERSITY AVE & MARKET ST, SITE ID TBD Confidential
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DocuSign Envelope ID: E3EFED6E-0079-4E06-934C-6AD1348FDA12
PROPOSED CHARGING AREA LAYOUT - CALIFORNIA
DISPENSERS AND
EQUIPMENT TO BE
-INSTALLED ON
GROUND FLOOR IN
FORMER BANK DRIVE
utu
THROUGH AREA.
CURB TO BE DEMO'D
AND TIE INTO
EXISTING ADA
PATHWAY FOR
EXISTING CHARGERS
ON GROUND FLOOR
EXIST. POWER SOURCE POSSIBLE EASEMENT EQUIP. PAD SURVEY AREA LEGEND
NEW TRANSFORMER SECONDARY RUN EV SPACES ADA Path of Travel-
CITY OF RIVERSIDE, UNIVERSITY AVE & MARKET ST, SITE ID TBD Confidential
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DocuSign Envelope ID: E3EFED6E-0079-4E06-934C-6AD1348FDA12 SPEXBOOK - 3-D LAYOUT - CALIFORNIA
RESTRICTED EL EDTRIO-VEHICLE
FOR ILLUSTRATION PURPOSES ONLY
CITY OF RIVERSIDE, UNIVERSITY AVE & MARKET ST, SITE ID TBD Confidential
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DocuSign Envelope ID: E3EFED6E-0079-4E06-934C-6AD1348FDA12
REFERENCE IMAGES - GARAGE ONLY
LEGEND EQUIPMENT PAD EV SPACES
SITE HOST, PROPERTY NAME, SITE ID
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DocuSign Envelope ID: E3EFED6E-0079-4E06-934C-6AD1348FDA12
REFERENCE IMAGES - GARAGE ONLY
LEGEND EQUIPMENT PAD EV SPACES
SITE HOST, PROPERTY NAME, SITE ID
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DocuSign Envelope ID: E3EFED6E-0079-4E06-934C-6AD1348FDA12
EXHIBIT C
SIGN PLAN
12" TYP
9 1/16"
TYP
RESERVED
PARKING
ELECTRIC
VEHICLE
18" TYP CHARGING
ONLY
VEHICLES NOT CHARGING
WILL BE TOWED AWAY
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