CHARGING STATION SITE LICENSE AGREEMENT
BETWEEN
THE CITY OF SAN BERNARDINO
AND
EV CHARGING SOLUTIONS, INCORPORATED
This Charging Station Site License Agreement (“Agreement”) is made and entered into as of [______], 2025 (“Effective Date”), by and between the City of San Bernardino (a charter city and municipal corporation organized and operating under the laws of the State of California with its principal place of business at Vanir Tower, 290 North D Street, San Bernardino, California 92401)(“Licensor”) and EV Charging Solutions, Incorporated (a California for benefit corporation with its principal place of business at 11800 Clark Street, Arcadia, California 91006) (“Licensee”). Licensor and Licensee are hereinafter sometimes referred to individually as “Party” and collectively as the “Parties”.
RECITALS
A. Licensee has access to public and/or private funding to install and operate Level II Charging and/or Direct Current Fast Charging stations (“Charging Station”) used for charging and/or recharging an electric vehicle ("EV"), and this funding is intended to improve the availability and reliability of EV charging systems; and B. Licensor is the owner of the property commonly known as Norman F.
Feldheym Public Library located at 555 West 6th Street, San Bernardino, California 92410 (“Property”); and
C. Licensor desires to allow the construction, operation, and/or maintenance of the Charging Station on its Property; and
D. The Parties wish to share the revenue realized from the sale of electricity stemming from the utilization of the Charging Station; and E. The Parties desire to enter into this Agreement to memorialize the contractual relationship pertaining to Licensor’s license to Licensee.
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
AGREEMENT
1. Incorporation of Recitals. The recitals above are true and correct, and are hereby incorporated herein by this reference.
2. Services. Licensee shall provide the Licensor with the services described in the Scope of Services as set forth in Exhibit A, attached hereto and incorporated herein by reference. In the event of any inconsistency between the terms of the Exhibit A and this Agreement, the terms of this Agreement shall govern.
3. Professional Practices. All professional services to be provided by Licensee pursuant to this Agreement shall be provided in accordance with Exhibit A. Licensee warrants that Licensee is familiar with all laws that may affect its performance of this Agreement, and shall advise Licensor of any changes in any laws that may affect Licensee’s performance of this Agreement. Licensee further represents that no Licensor employee will provide any services under this Agreement.
4. License Premises. The Licensor hereby licenses to Licensee access to the Property as described in Exhibit B (Project Site Information), attached hereto and incorporated herein by reference (“License Premises”). Access to and upon the Licensed Space and Property shall be done in such a manner as to allow the Licensor continued reasonable rights of ingress and egress.
5. Fee. Licensee hereby agrees to pay Licensor a license fee equal to [______] dollars [$______] per month per existing parking space that will be replaced by the EV charging parking spaces, starting on the Commencement Date (as defined below) and continuing until the Expiration Date (as defined below) as consideration for the Agreement herein. On each anniversary of the Commencement Date (including during the extension Term, if any), the license fee shall increase by [____] percent ([__]%).
6. Revenue Sharing. The Parties will share the revenue generated by customers using the Charging Stations in accordance with Section 4 (Revenue Sharing) to Exhibit A.
7. Term. The term of this Agreement (“Term”) shall commence on the Effective Date and end on the date that is ten (10) years from the Commencement Date as extended from time to time (“Expiration Date”).
a. Commencement. The “Commencement Date” shall mean the date on which the Charging Station is first operational.
b. Option to Extend. In the event Licensee desires to renew this Agreement, Licensee must provide Licensor with not less than ninety (90) days prior written notice of its desire to extend. In the event Licensor approves such extension of this Agreement, this Agreement shall continue based upon the identical terms and conditions hereof.
c. 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).
8. 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 Charging Station as set forth in Exhibit A. 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 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. With Licensor’s prior written consent (which consent will not be unreasonably withheld, conditioned, or delayed), Licensee shall be permitted to reconfigure the existing parking spaces 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.
c. 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 (at no cost to Licensor) upon request with Licensee’s efforts to do so. Licensor shall provide such other reasonable assistance (at no cost to Licensor) 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 reasonably needed; and cooperate generally (at no cost to Licensor) 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 (with any such bond being in a form acceptable to Licensor) within twenty (20) days of the earlier of Licensee receiving written notice thereof from Licensor or Licensee receiving actual notice of such lien.
e. Ownership by Licensee. Licensee shall either own or have a valid leasehold interest in the Charging Station; and 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). f. Charging Station Definition. “Charging Station” for purposes of this Agreement 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. With Licensor’s prior written consent (which consent will not be unreasonably withheld, conditioned, or delayed), 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 with Licensor’s prior written consent (which consent will not be unreasonably withheld, conditioned, or delayed). 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, subject to compliance with applicable law.
9. 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). Licensor shall use commercially reasonable efforts to notify Licensee by email sent to (which email is to be sent to [______] or such other email address as provided in writing by Licensee) within two (2) business days of Licensor becoming aware of any maintenance matters which Licensee is obligated to remedy under this section.
Licensee shall promptly, but in any event within two (2) business days, notify Licensor by reply email of Licensee’s actions to be taken to address such maintenance matters.
10. Access. Licensee’s customers shall have free, unrestricted access to the License Premises twenty-four (24) hours per day, seven (7) days per week, and three hundred sixty-five (365) days per year (excluding any restrictions as may be reasonably needed to maintain or repair the Property or maintain public safety, and subject to force majeure); provided that Licensor shall use commercially reasonable efforts to provide not less than forty-eight (48) hours of notice to Licensee in the event access to the License Premises will be restricted due to scheduled maintenance or repair of the Property by Licensor. 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.
11. Right to Relocate. Should Licensor desire to relocate Licensee on the
Property, Licensor may do so as provided in this section. 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 EV charging station or so that Licensor may operate an EV 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.
12. Signage. Licensee may paint, place, erect, or construct signage as set forth in the sign plan attached hereto as Exhibit B [Need Sign Plan](attached hereto and incorporated herein by reference). In the event Licensee desires to install signage materially different from the signage set forth in Exhibit E, Licensee shall obtain Licensor’s prior written consent (which shall not be unreasonably withheld, conditioned, or delayed).
Licensee shall be responsible at its own cost and expense to obtain any and all permits necessary for the installation of its signs. All signage shall be in accordance with all laws, rules, and ordinances.
13. Licensor Obligations regarding Property/Premises. Licensor shall (at its sole cost and expense) take all actions necessary to maintain the License Premises (excluding the Charging Station) in a clean, safe, and orderly condition (to at least the same standard as it customarily maintains the common areas at 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 EV 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 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. Licensee shall use commercially reasonable
efforts to notify Licensor by email (which email is to be sent to [_______] or such other email address as provided in writing by Licensor) within two (2) business days of Licensee becoming aware of any maintenance matters which Licensor is obligated to remedy under this section. Licensor shall promptly, but in any event within two (2) business days, notify Licensee by reply email of Licensor’s actions to be taken to address such maintenance matters.
14. 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 (at no cost to Licensor) 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). Neither Party 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 this Agreement.
15. Taxes. Licensee is solely responsible for personal property taxes imposed on the Charging Station, and any other equipment installed by it at the Premises. All other real or personal property taxes related to the License Premises (including any increase in real estate taxes on the Property of which the License Premises is a part which arise from Licensee’s improvements and/or Licensee’s use of the License Premises) are the sole obligation of Licensor.
16. Ownership of Drawings and Other Documents. All documents prepared by or 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.
a. “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, and 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).
17. Confidentiality/Publicity. The Parties agree that the terms of this Agreement are confidential; and both Parties agree not to disclose such confidential information to any person or entity other than: (a) accounting, legal, tax, and construction consultants that have a “need to know” such confidential information; and (b) as required by law.
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, the Parties may make general press releases, statements, and 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, statements, and press conferences shall be approved in advance by the Parties. 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 EV 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.
18. Parties’ Representations and Warranties. Each Party hereby represents and warrants 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) it will comply with all Federal, state, and local laws, rules, and regulations (including without limitation all zoning ordinances and building codes) at all times during the Term in performing its obligations under this Agreement.
19. 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, except as otherwise permitted pursuant to this Agreement, 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 the Licensor’s first lien holder to this License and any easements required herein, if necessary or required by such lien holder).
20. Environmental Compliance. Licensor hereby represents, warrants, and covenants that (to Licensor’s knowledge) 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 the Comprehensive Environmental Response, Compensation, and Liability Act, 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, the Parties 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). Additionally, in the event Hazardous Materials are found at the Property by Licensee or Licensee determines that the Property is not in compliance with Environmental Laws, Licensee may (at its election) 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).
21. Licensee Insurance. Licensee shall maintain in full force and effect, at its cost and expense, the following coverages and amounts of insurance during the Term of this Agreement:
a. Full replacement cost property insurance (written on a “special peril” basis) for the Charging Station and all other personal property, machinery, equipment, and trade fixtures owned by Licensee.
b. Statutory Worker’s Compensation Insurance, and Employer’s Liability limits of one million dollars ($1,000,000) per accident/per employee. c. Commercial General Liability Insurance written on an occurrence basis covering bodily injury (including death), personal injury, and property damage with limits of not less than two million dollars ($2,000,000) per occurrence (four million dollars ($4,000,000) aggregate) for bodily injury, personal injury, and property damage (that includes coverage for contractual liability, independent contractors, premises/operations, products/completed operations, and cross liabilities/separation of
insureds). Licensee shall consider its own insurance primary, and shall not seek contribution from similar insurance being maintained by the Licensor; but only as to the negligent acts or omissions of Licensee or the Licensee Parties. d. Automobile Liability with a combined single limit of one million dollars ($1,000,000) that includes coverage for owned, non-owned, and hired vehicles. e. Excess liability coverage in the amount of five million dollars ($5,000,000) per occurrence for injuries, losses, claims for damages to persons, or property occurring on the License Premises; and resulting from the use of the Charging Station, the occupancy of the License Premises, and/or the negligence of Licensee (and its agents, contractors, employees, or invitees) (which coverage shall sit excess of the scheduled underlying General Liability, Automobile Liability, and Employer’s Liability Insurance policies with exclusions that are no more broad that those contained in the underlying policies).
f. Licensee shall include Licensor as an additional named insured (with respect to Licensee’s Commercial General Liability Insurance, Automobile Liability Insurance, and Excess Liability Insurance) for liability arising out of the ownership, maintenance, or use of the Charging Station or the Premises. g. Licensee shall (upon Licensor’s written request) provide Licensor with a certificate of insurance and endorsement, evidencing the required coverages. With the prior written consent of Licensor (which consent may be granted or withheld in Licensor’s sole discretion), Licensee may “self-insure” all or any portion of the foregoing insurance obligations. Licensee hereby represents to Licensor that, as of the Effective Date, Licensee does not “self-insure” and does not contemplate to “self-insure” in the foreseeable future.
h. Policy Requirements. The insurance policies required under this section shall:
(1) Be issued by insurance companies licensed to do business in the state in which the Property is located, with a general policyholder’s ratings of at least “A-” and a financial rating of at least “Class VIII” in the most current Best’s Insurance Reports available on the Commencement Date; if the Best’s ratings are changed or discontinued, the Parties shall agree to a comparable method of rating insurance companies.
(2) Contain provisions whereby each Party’s insurers waive all rights of subrogation against the other Party on each of the coverages required herein. i. 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, License Premises, 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 Party 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 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. If Licensee elects to terminate the Agreement, it shall remove all of Licensee’s property from the License Premises in accordance with this Agreement. Any repair and restoration required by Licensee under this section 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 one hundred twenty (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 the 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. Indemnification. To the fullest extent permitted by law, Licensee shall
defend (with counsel reasonably approved by the Licensor), indemnify, and hold the Licensor (its elected and appointed officials, officers, employees, agents, and authorized volunteers) free and harmless from any and all claims (demands, causes of action, suits, actions, proceedings, costs, expenses, liability, judgments, awards, decrees, settlements, loss, damage or injury of any kind in law or equity to property or persons including wrongful death (“Claims”)) in any manner arising out of, pertaining to, or incident to any alleged acts (errors, omissions, or willful misconduct) of Licensee (its officials, officers, employees, subcontractors, consultants, or agents) in connection with the performance of the Licensee’s services or this Agreement (including without limitation the payment of all damages, expert witness fees, attorneys’ fees, and other related costs and expenses).
This indemnification clause excludes Claims arising from the sole negligence or willful misconduct of the Licensor. Licensee's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the Licensor (the City Council, members of the City Council, its employees, or authorized volunteers). Licensee’s indemnification obligation
24. 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. No councilmember, officer, or employee of Licensor shall be personally liable to the Licensee in the event of any default or breach by Licensor; or for any amount which may become due to the Licensor pursuant to the terms of this Agreement.
25. Time of Performance. Licensee shall perform its services in a prompt and timely manner and shall commence performance upon receipt of written notice from the Licensor to proceed. Licensee shall complete the services required hereunder within Term.
26. Delays in Performance
a. Neither Party shall be considered in default of this Agreement for delays in performance caused by circumstances beyond the reasonable control of the non-performing Party. For purposes of this Agreement, such circumstances include a Force Majeure Event. A Force Majeure Event shall mean an event that materially affects the Licensee’s performance and is one or more of the following: (1) Acts of God or other natural disasters occurring at the project site; (2) terrorism or other acts of a public enemy; (3) orders of governmental authorities (including, without limitation, unreasonable and unforeseeable delay in the issuance of permits or approvals by governmental authorities that are required for the services); and (4) pandemics, epidemics, or quarantine restrictions. “Orders of governmental authorities” includes ordinances; emergency proclamations and orders; and rules to protect the public health, welfare, and safety. b. Should a Force Majeure Event occur, the non-performing Party shall
(within a reasonable time of being prevented from performing) give written notice to the other Party describing the circumstances preventing continued performance and the efforts being made to resume performance of this Agreement. Delays shall not entitle Consultant to any additional compensation regardless of the Party responsible for the delay.
c. Notwithstanding the foregoing, the Licensor may still terminate this Agreement in accordance with the termination provisions of this Agreement.
27. California Labor Code Requirements. Licensee is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq. (as well as California Code of Regulations, Title 8, Section 16000, et seq.) ("Prevailing Wage Laws"), which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects. If the Services are being performed as part of an applicable “public works” or “maintenance” project as defined by the Prevailing Wage Laws, Licensee agrees to fully comply with such Prevailing Wage Laws if applicable. Licensee shall defend, indemnify, and hold the Licensor (its elected officials, officers, employees, and agents) free and harmless from any claims (liabilities, costs, penalties, or interest) arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. It shall be mandatory upon the Licensee and all subcontractors to comply with all California Labor Code provisions which include but are not limited to prevailing wages (Labor Code Sections 1771, 1774 and 1775), employment of apprentices (Labor Code Section 1777.5), certified payroll records (Labor Code Sections 1771.4 and 1776), hours of labor (Labor Code Sections 1813 and 1815), and debarment of contractors and subcontractors (Labor Code Section 1777.1).
28. Verification of Employment Eligibility. By executing this Agreement, Licensee verifies that it fully complies with all requirements and restrictions of state and Federal law respecting the employment of undocumented aliens (including but not limited to the Immigration Reform and Control Act of 1986 as may be amended from time to time), and shall require subconsultants and sub-subconsultants to comply with the same.
29. Laws and Venue. This Agreement shall be interpreted in accordance with the laws of the State of California. If any action is brought to interpret or enforce any term of this Agreement, the action shall be brought in a state or Federal court situated in the County of San Bernardino, State of California.
30. Termination
a. Early Termination. Either Party shall have the right to terminate this License at any time upon thirty (30) days prior written notice to the other Party. In connection with any early termination, the Parties shall comply with the surrender obligations set forth below.
b. By Licensor for Cause. This Agreement may be terminated by the 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. By Licensor for Delay in Commencement Date. This Agreement may be terminated by the Licensor if the Commencement Date has not occurred within twenty- four (24) months following the Effective Date.
d. 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. All such removal and restoration work shall be completed by Licensee (at its sole expense) within sixty (60) days of the expiration or termination of this Agreement. If Licensee fails to remove Licensee’s property from the License Area within sixty (60) days following the expiration or earlier termination of the License, Licensor may deem all or any part of Licensee’s property to be abandoned; and (at Licensor’s option) title to Licensee’s property shall vest in Licensor or Licensor may (at the expense of Licensee) dispose of Licensee’s property in any manner Licensor deems appropriate. e. No Further Obligations. Upon any termination, 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).
31. Attorneys’ Fees. In the event that litigation is brought by any Party in connection with this Agreement, the prevailing Party shall be entitled to recover from the opposing Party all costs and expenses (including reasonable attorneys’ fees incurred by the prevailing Party in the exercise of any of its rights or remedies hereunder or the enforcement of any of the terms, conditions, or provisions hereof). The costs, salary, and expenses of the Licensor’s Attorney’s Office in enforcing this Agreement on behalf of the Licensor shall be considered as “attorneys’ fees” for the purposes of this Agreement.
32. Costs. Each Party shall bear its own costs and fees incurred in the preparation and negotiation of this Agreement; and in the performance of its obligations hereunder except as expressly provided herein.
33. Limitation of Agreement. This Agreement is limited to and includes only the services included in the Project described above.
34. Notice. Any notice or instrument required to be given or delivered by this Agreement may be given or delivered by depositing the same in any United States Post Office (certified mail, return receipt requested, postage prepaid, and addressed to the following addresses) and shall be effective upon receipt thereof:
LICENSOR: LICENSEE:
City of San Bernardino
Vanir Tower, 290 North D Street
San Bernardino, CA 92401
Attn: Bill Gallardo
Interim City Manager
With Copy To:
City of San Bernardino
Vanir Tower, 290 North D Street
San Bernardino, CA 92401
Attn: City Attorney
EV Charging Solutions
11800 Clark Street
Arcadia, CA 91006
Attn: [_______]
35. Third Party Rights. Nothing in this Agreement shall be construed to give any rights or benefits to anyone other than the Parties.
36. Equal Opportunity Employment. Licensee represents that it is an equal opportunity employer and that it shall not discriminate against any employee or applicant for employment because of race, religion, color, national origin, ancestry, sex, age, or other interests protected by the State or Federal Constitutions. Such non-discrimination shall include but not be limited to all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff, or termination.
37. Entire Agreement. This Agreement (including the Exhibits) represents the entire understanding of the Parties as to those matters contained herein; and supersedes and cancels any prior or contemporaneous oral or written understanding, promises, or representations with respect to those matters covered hereunder. Each Party acknowledges that no representations, inducements, promises, or agreements have been made by any person which are not incorporated herein, and that any other agreements shall be void. This is an integrated Agreement.
38. Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such determination shall not affect the validity or enforceability of the remaining terms and provisions hereof or of the offending provision in any other circumstance; and the remaining provisions of this Agreement shall remain in full force and effect.
39. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the successors in interest, executors, administrators, and assigns of each Party to this Agreement. However, Licensee shall not assign or transfer by operation of law or otherwise any or all of its rights, burdens, duties, or obligations without the prior written consent of Licensor. Any attempted assignment without such consent shall be invalid and void.
40. Non-Waiver. The delay or failure of either Party at any time to require performance or compliance by the other Party of any of its obligations or agreements shall in no way be deemed a waiver of those rights to require such performance or compliance.
No waiver of any provision of this Agreement shall be effective unless in writing and
signed by a duly authorized representative of the Party against whom enforcement of a waiver is sought. The waiver of any right or remedy with respect to any occurrence or event shall not be deemed a waiver of any right or remedy with respect to any other occurrence or event, nor shall any waiver constitute a continuing waiver.
41. Time of Essence. Time is of the essence for each and every provision of this Agreement.
42. Headings. Paragraphs and subparagraph headings contained in this Agreement are included solely for convenience and are not intended to modify, explain, or to be a full or accurate description of the content thereof; and shall not in any way affect the meaning or interpretation of this Agreement.
43. Amendments. Only a writing executed by all of the Parties hereto or their respective successors and assigns may amend this Agreement.
44. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original. All counterparts shall be construed together and shall constitute one single Agreement.
45. Authority. The persons executing this Agreement on behalf of the Parties hereto warrant that they are duly authorized to execute this Agreement on behalf of said Parties; and that by doing so, the Parties hereto are formally bound to the provisions of this Agreement.
46. Electronic Signature. Each Party acknowledges and agrees that this Agreement may be executed by electronic or digital signature, which shall be considered as an original signature for all purposes and shall have the same force and effect as an original signature.
[SIGNATURES ON FOLLOWING PAGE]
SIGNATURE PAGE FOR
CHARGING STATION SITE LICENSE AGREEMENT
BETWEEN
THE CITY OF SAN BERNARDINO
AND
EV CHARGING SOLUTIONS, INCORPORATED
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.
CITY OF SAN BERNARDINO
APPROVED BY:
Bill Gallardo
Interim City Manager
ATTESTED BY:
Telicia Lopez, CMC
Acting City Clerk
APPROVED AS TO FORM:
Best Best & Krieger LLP
City Attorney
EV CHARGING SOLUTIONS
Signature
Name
Title
Exhibit A
Scope of Services and
Electric Vehicle Charging Station Equipment Specification
Exhibit B
Project Site Information
Utility/Electric Provider (e.g., PG&E, SCE, LA DWP):
Electric Provider Acct. #:
Total Estimated Parking Spaces: / Estimated Number of ADA Spaces:
Other: