Attachment B
CHARGING STATION SITE LICENSE AGREEMENT
This CHARGING STATION SITE LICENSE AGREEMENT, (the “Agreement”), including all attached Exhibits, and dated as of the last signature date below (the “Effective Date”), is by and between City of Santa Maria, a municipality (“Lessor”) and Central Coast Community Energy (“Lessee”), a Joint Powers Authority. Lessor and Lessee may individually be referred to as a “Party” and collectively as the “Parties”.
RECITALS
A. Lessor owns that certain real property located at South McClelland Street in City of Santa Maria, CA , and legally described in Exhibit “A” (the “Property”).
B. Lessee wishes to install one or more electric vehicle charging stations on the Property and sell EV charging services to Central Coast Community Energy customers as well as members of the public.
C. Lessor wishes to license Lessee the Property for the purposes of offering members of the public access to EV charging stations at the property.
D. Lessor and Lessee desire to enter into this Agreement to provide the terms and conditions pursuant to which Lessor leases certain portions of the Property to Lessee.
NOW, THEREFORE, Lessor and Lessee hereby agree to the following terms and conditions.
AGREEMENT
1. Basic Provisions
a. Premises. Lessor hereby leases to Lessee a portion of the Property consisting of approximately 1,250 square feet, in order to build, own, operate, and maintain electric vehicle charging stations (singularly, a “Charging Station” or collectively the “Charging Stations”), along with approximately 900 square feet of landscaped or paved space for equipment (the “Premises”), together with ingress and egress to the Premises across the Property.
b. 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 Commercial Operation Date, unless renewed or earlier terminated as set forth herein. The "Commercial Operation Date" for purposes of this Agreement, shall mean the date on which all Charging Stations that are to be installed and are first operational.
c. Fee. Lessee agrees to pay Lessor a rental fee equal to $0 per Charging Station per year, starting on the Commencement Date (as defined below) and continuing until the Expiration Date.
2. Installation and Construction
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a. Installation. Upon the Effective Date, Lessor shall deliver possession of the Premises to Lessee. Lessee shall, at its sole cost and expense, construct the Charging Stations. Lessee, at any time and for any reason during the term of this Agreement, may elect to upgrade, revise, alter, or remove any Charging Station installed on the Premises. b. Grant of License : Lessor is the fee simple owner of the real property identified in Exhibit A (“Property”). Subject to the terms of this Agreement, Lessor grants to Lessee and its contractors and vendors for the Term of this Agreement for the sole purposes of performing Lessee’s obligations and enforcing Lessee’s right under the Agreement: (1) an exclu sive and irrevocable, except as specifically set forth herein, license to evaluate, use and occupy a portion of the Property, including designated parking spaces for charging electric vehicles; (2) necessary easements, or rights for installation, maintenan ce, operation, access and utilities, as described herein for the purpose (including, but not limited to, any rights necessary for PG&E to interconnect the stalls); and (3) the right for Lessee to issue a sublicense to its contractors and vendors that is up to, but no more than, coextensive with the license that Lessor grants to Lessee herein.
c. Construction. Lessee is solely responsible for supervising the construction and installation of the Charging Stations, which may include but not be limited to hiring and coordinating all vendors and contractors; installing electrical equipment, utility lines, hardware, and software; site preparation; trenching; repaving and landscaping. Lessor shall allow Lessee and Lessee’s contractors to stage equipment in reasonabl e proximity to the Premises to facilitate Lessee’s construction at the Property; provided such staging shall not unreasonably interfere with Lessor’s use of the Property. After obtaining written permission from Lessor, Lessee shall be permitted to reconfigure the existing parking spaces to accommodate the Charging Stations. 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 Charging Stations.
d. Permits. Lessee and/or its contractors will, at its sole cost and expense, obtain all licenses, permits, or other approvals required to install the Charging Stations, and Lessor will reasonably cooperate upon request with Lessee’s efforts to do so. Lessor will provide staffing support to meet with Lessee at the Premises as needed, and cooperate generally with Lessee during the planning, permitting, and construction of the Charging Stations. Lessee shall comply with all permits issued for the planning, permitting, and construction of the Charging Stations.
e. Ownership by Lessee . The Charging Station equipment shall remain the sole property of the Lessee at all times, and Lessee shall have the right to remove all or a portion of any 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 Premises under applicable laws. If a Charging Station becomes inoperable Lessee will have one (1) month to fix the inoperable Charging Station.
f. Right to Tow. Lessee retains the right to remove any vehicle from the
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Premises at any time and for any reason at Lessee’s sole cost, in accordance with applicable law.
3. Operation and Maintenance. Except as otherwise provided in this Agreement, Lessee will, at its sole cost and expense make all necessary maintenance, repairs, and replacements to the Charging Stations.
4. Access. Members of the public shall have free, access to the Premises during posted regular parking hours as determined by the City Council. Lessee and its employees, contractors, and/or vendors may, at any time during the Term, access the Premises to maintain and inspect the Charging Stations
Members of the public shall have free, unrestricted access to the Premises twenty-four (24) hours per day, seven (7) days per week, and 365 days per year. Lessee and its employees, contractors, and/or vendors may, at any time during the Term, access the Premises to maintain, inspect, repair or replace any portion of the Charging Station pursuant to its obligations under this Agreement.
The Lessee shall install and maintain clear, visible signage indicating that the designated parking stalls are reserved ex clusively for actively charging electric vehicles. Such signage shall comply with the requirements set forth under California Vehicle Code Section 22511, including paragraph (2) of subdivision (d).
Pursuant to California Vehicle Code Section 22511, if a vehicle is parked in a designated EV charging stall without being actively connected for electric charging purposes, the local authority, after notifying the police or sheriff’s department, may cause the removal of such a vehicle to the nearest garage, as defined in Section 340, that is owned, leased, or approved for use by a public agency. For avoidance of doubt, Lessee shall not be responsible for any costs or fees associated with towing vehicles or enforcement of local parking restrictions.
Lessee shall install appropriate signage.
5. Right to Relocate
a. Cost. At Lessor’s sole cost and expense reimbursable to Lessee, Lessor may require Lessee to relocate to other premises (“New Premises”) within the Property; provided however, Lessor shall have no right to relocate Lessee for the purpose of leasing or licensing the Premises to a tenant that will operate as an electric vehicle charging station; provided, however, that Lessor may operate on its own or through a third-party an adjacent 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 Premises as of the date of Lessor’s Notice (hereinafter defined). Lessor will reimburs e Lessee all reasonable costs Lessee incurs to move Lessee’s fixtures and equipment to the New Premises as well as costs incurred to secure power at the New Premises. If Lessor elects to exercise the right of relocation, Lessor shall deliver written notice to Lessee identifying the location of the proposed New Premises at least one hundred twenty (120) days prior to the date that Lessee is required to relocate to the New Premises (“Lessor’s Notice”). Lessee shall have no obligation to
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vacate the Premises un til the New Premises is commissioned, permitted, and fully operational.
b. Right of First Refusal: Notwithstanding the above provision, LESSOR shall have the right to construct and operate a private EV charging station on the Property adjacent to the premises, however LESSOR shall provide LESSEE a right of first refusal (“ROFR”). If LESSOR receives an offer from a third party to construct and operate an EV charger station on the Property, and the LESSOR desires to accept, the LESSOR shall provide written notice to LESSEE. The Offer Notice shall provide the LESSEE a copy of the offer, including proposed terms and conditions. The LESSEE shall have (15) business days from receipt to exercise the ROFR by delivering notice to LESSOR. If the LESSEE fails to exercise its ROFR within this period, the LESSOR may proceed with the construction and operation of the EV charger station with the third party.
6. Signage. Lessee may paint, place, erect, or construct signage, marks, or advertising devices in, on, or about the Property as Lessee shall deem necessary, in a mutually agreed upon location. Lessee shall be responsible at its own cost a nd expense to obtain all permits necessary for the installation of its signs. All signage shall be in accordance with all laws, rules and ordinances.
7. Lessor Obligations Regarding Property/Premises. Lessor shall, at its sole cost and expense, take all actions necessary to maintain the Premises 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 repaving and restriping, including federal and state accessibility compliance, and maintenance and repair of curbs, gutters and landscaping features at the Property. Lessor shall also be responsible, at its sole cost and expense, to comply with all state and local parking laws, ordinances, requirements and rules, including, but not limited to, those relating to parking density should the same be impacted by the installation of electric vehicle parking spaces as contemplated herein. Lessor shall not be liable for any damage caused to the Premises, including each Charging Station, unless directly caused by Lessor, its employees, agents, or contractors. Lessor shall not be responsible for any vandalism or graffiti to Charging Stations; provided, however, that to the extent Lessor has actual knowledge of vandalism, Lessor shall promptly notify Lessee. Lessee is responsible for promptly repairing any damages or vandalism to the Charging Stations after notice from Lessor.
For the avoidance of doubt, Lessor shall be under no obligation to maintain the Charging Stations, signage or any other equipment installed by Lessee within the Premises.
However, if Lessor restripes the parking lot, inclusive of the Premises, Lessor shall restripe the Premises in a manner identical to Lessee’s striping scheme in effect immediately prior to the restriping.
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8. EV Charging . Lessee will provide Charging Station access to customers ("EV Charging Customers"), which will include members of the public. EV Charging Customers shall have access to each Site during posted regular parking hours as determined by the City Council.
a. Customer Access. Lessor will identify Customer EV Charging Stations with specified signage pursuant to the City Parking Ordinance Section 7-5.14, a, b and c. as stated in number 4. of this agreement.
9. Utility Availability. Lessee shall supply all electricity to the Charging Stations.
Lessee may charge its end users for electrical usage. Lessor shall cooperate with Lessee to obtain any other utilities necessary to operate the Charging Station, including by granting appropriate easements to local utility providers ; provided, however, that Lessor is not required to pay money to satisfy the requirements of the utility provider or Lessee associated with the provision of such utilities. Neither Lessor nor Lessee 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 Premises, unless the cause of the interruption is covered by such Party’s indemnity provided for below.
10. Taxes. Lessee is solely responsible for personal property taxes imposed on the Charging Stations, and any other equipment installed by it on the Premises. All other real or personal property taxes related to the Premises, including any increase in real estate taxes on the Property of which the Premises is a part which arise from Lessee’s improvements and/or Lessee’s use of the Premises, are the sole obligation of Lessor.
11. Ownership of Drawings and Other Documents . All documents prepared by or under the direction of Lessee pursuant to this Agreement, including, without limitation, drawings, plans, and specifications, including those in electronic format, are solely and exclusively owned by Lessee. The Parties agree that Lessee has and retains ownership of all of such Lessee’s Intellectual Property rights therein, and Lessor has no right, and shall not obtain any right, in any Lessee Intellectual Property.
As used in this Agreement, “ Intellectual Property ” means all copyrights, patents, trademarks and service marks, na mes, 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.
12. 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, the Parties may
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make general press releases and statements, hold press conferences, both through traditional and electronic media, including websites created by Lessee or othe r third parties, regarding the existence of the Charging Stations and the status of the activities contemplated by this Agreement.
13. Representations and Warranties. Lessor and Lessee each hereby represent and warrant to the other as of the Effective Date th at: (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, regulations (including, without limitation, all zoning ordinances and building codes) in performing its obligations under this Agreement.
14. Additional Lessor Covenant. Lessor covenants that it shall not take any action that would interrupt the use of the Premises or the Charging Station . However, this covenant shall not preclude the Lessor from temporarily restricting access to the Premises or Charging Station in the event of:
a. Maintenance Activities – Necessary maintenance, repairs, or improvements to the roadways, utilities, or other infrastructure serving the Premises, provided that the Lessor shall use commercially reasonable efforts to minimize disruption and provide advance notice to the Lessee whenever possible.
b. Emergency Situations – Any actions required to respond to emergency situations, including but not limited to natural disasters, accidents, public safety requirements, or compliance with orders issued by relevant authorities. c. The Lessor shall make reasonable efforts to promptly restore access to the Premises and Charging Station once the maintenance or emergency situation has been resolved.
15. Lessee Insurance.
During the Term of this Agreement, Lessee shall maintain in full force and effect, at its cost and expense, the following coverages and amounts of insurance or self-insurance:
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A. Minimum Scope of Insurance
Coverage shall be at least as broad as:
1. Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001), including products and completed operations, property damage, bodily injury and personal & advertising injury.
2. Insurance Services Office Business Auto Coverage Form Number CA 00 01 covering any auto (Code 1), or if Consultant has no owned autos, covering hired (Code 8) and non-owned autos (Code 9).
3. Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance.
4. Errors and Omissions liability insurance appropriate to the Consultant's profession. Architects' and engineers' coverage is to be endorsed to include contractual liability.
B. Minimum Limits of Insurance
Consultant shall maintain limits no less than:
1. General Liability - $2,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit.
2. Automobile Liability - $1,000,000 per accident for bodily injury and property damage.
3. Workers’ Compensation: Statutory limits.
4. Employer's Liability - $1,000,000 per accident for bodily injury or disease.
5. Errors and Omissions Liability - $1,000,000 per occurrence or claim, $2,000,000 aggregate.
C. Self-insured Retentions
Self-insured retentions must be declared to and approved by the City. The City may require the Consultant to purchase coverage with a lower retention or provide proof of ability to pay losses and related investigations, claim administration and defense expenses within the retention.
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D. Other Insurance Provisions
The liability policies are to contain, or be endorsed to contain, the following provisions:
1. The City, its officers, officials, employees and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the Consultant including materials, parts or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form or an endorsement to the Consultant’s insurance (at least as broad as ISO Form CG 20 10 11 85 or both CG 20 10, CG 20 26, CG 20 33, or CG 20 38 and CG 20 37 forms if later revisions are used).
2. For any claims related to this project, the Consultant's insurance coverage shall be primary insurance coverage at least as broad as ISO CG 20 01 04 13 as respects the City, its officers, officials, employees and volunteers. Any insurance or self -insurance maintained by the City, its officers, officials, employees or volunteers shall be excess of the Consultant's insurance and shall not contribute with it.
3. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be canceled or reduced, except with notice stating the title of this contract to the City. All notices provided pursuant to this Agreement shall be given to the City representative listed for notice in this agreement and shall specify the title of this Agreement. Notice may be given by overnight mail, facsimile with confirmation of receipt, or certified mail with return-receipt requested.
4. Consultant hereby grants to City a waiver of any right to subrogation which any insurer of said Consultant may acquire against the City by virtue of the payment of any loss under such insurance. Con sultant agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer.
5. If any of the required policies provide claims-made coverage:
a. The Retroactive Date must be shown, and must be before the date of the contract or the beginning of contract work.
b. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the contract of work.
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c. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a Retroactive Date prior to the contract effective date, the Con sultant must purchase “extended reporting” coverage for a minimum of five (5) years after completion of work.
E. Acceptability of Insurers
Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A:VII, unless otherwise acceptable to the City.
F. Verification of Coverage
Consultant shall furnish the City with original certificates and amendatory endorsements of the applicable policy language effecting coverage required by this clause.
All certificates and endorsements are to be received and approved by the City before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive the Consultant’s obligation to provide them. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements effecting the coverage required by these specifications at any time.
16. Lessor Insurance.
a. Lessor has no obligation to maintain insurance under this Agreement.
17. Casualty and Condemnation.
a. Damage. If the Premises, any portion of the Charging Stations or any portion of the Property that adversely affects the use of the Charging Stations is damaged by fire or other casualty, then either Lessor or Lessee may, within thirty (30) days of the date of such fire or other casualty elect to ter minate the Agreement by written notice to the other Party. If Lessee elects to repair its property, it shall restore, rebuild, or replace those portions of the Charging Stations and any other property damaged as a result of such fire or other casualty to their prior or better condition as necessary, and all property insurance proceeds of Lessor applicable to the Premises shall be made available to Lessee in connection with such repair and restoration. If Lessee elects to terminate the Agreement, it shall remove all of Lessee’s property from the Premises in accordance with this Agreement. Any repair and restoration required by Lessee under this Section shall commence within sixty (60) days of the date Lessee elects to repair and restore the Premises and shall be completed no later than 120 days thereafter, if reasonably possible. b. Condemnation/Taking. If any portion of the 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 Chargin g Stations, then Lessee 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 Lessee does not elect to terminate, the Parties
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will use commercially reasonable efforts to find an alternate location for the Charging Stations on the Property. The costs of the relocation of the Charging Station shall be paid by Lessor. Lessee 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 Lessor’s award related to the condemnation or taking. c. Suspension of Term . During any time that the Charging Station or any portion of the Premises is under re pair or being relocated pursuant to a casualty or condemnation, the Term shall be temporarily suspended on a day-for-day basis.
18. Hold Harmless. Each Party shall indemnify and hold harmless the other Party, and their respective affiliates, representatives, agents, board members, officers, directors, managers, members, contractors or employees, from and against all third party claims, demands, causes of action, liabilities, costs, damages, losses, penalties, fines, judgments or expenses, including reasonable a ttorneys’ fees and costs of collection (collectively “Losses”) that arise out of or result from (1) any willful misconduct or negligence of the indemnifying Party in connection with this Agreement; (2) any breach by the indemnifying Party of its obligation s, representations, or warranties under this Agreement, or (3) the indemnifying Party’s operation of each Site or Property, except to the extent arising out of or resulting from any willful misconduct or negligence of the indemnified Party. The obligations of the Parties under this Section shall survive the expiration, cancellation, or termination of this Agreement and Term.
19. Limitation of Lessor and Lessee 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.
20. Termination. This Agreement may be terminated in its entirety:
a. By either Party if the other Party breaches or fails to perform any of its obligations in any material respect, and such breach or failure continues uncured for fifteen (15) business days after receipt of written notice; provided that if such breach or failure reasonably requires more than fifteen (15) days to cure, this provisions shall not be triggered if such breaching Party commences to cure within such period and diligently proceeds to complete such cure; or
b. By either Party, if the other Party becomes insolvent or proceedings are instituted by or against it under any provision of any federal or state bankruptcy or insolvency laws or;
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c. by either Party, pursuant to Section 17 of thi s Agreement or upon expiration of the Term of this Agreement.
d. Post -Termination Removal. Upon expiration or termination of this Agreement, Lessee shall, at its sole cost and expense, remove all Charging Stations and related EVSE equipment from the Prem ises and restore the area to a condition reasonably consistent with its original state, normal wear and tear excepted, unless otherwise agreed in writing by the Parties.
21. Remedies. 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.
22. Notice. Any notice provided or permitted to be given under this Agreement must be in writing and be served either by (i) deposit in the mail, addressed to the Party to be notified, postage prepaid, and registered or certified, with a return receipt requested, or (ii) deposit with an internationally recognized overnight delivery carrier, with notice of delivery to the recipient Party or by electronic mail with a return notice requested. Notice given by registered or certified mail, overnight carrier or electronic mail 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 Lessee:
Central Coast Community Energy
70 Garden Court, Suite 300
Monterey, CA
If to Lessor:
Department of Public Works
110 South Pine Street, Suite 101
Santa Maria, CA 93458
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With a copy to (which shall not constitute notice): [email protected]
Each Party may change its address for notice by giving notice thereof to the other Party.
23. 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 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.
24. Miscellaneous.
a. 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, pandemic, government requirement, civil or military authority, act of God, act or omission of carriers or other similar causes beyond the Party’s control.
b. Amendment. This Agreement may be amended or modified only by an instrument in writing signed by Lessor and Lessee.
c. Construction of Agreement. Lessor and Lessee agree that each party has fully participated in the review and revision of this Agreement and that any rule of construction to the effect that ambiguities are to be resolv ed against the drafting party shall not apply in the interpretation of this Agreement or any amendment to this Agreement.
d. Governing Law. This Agreement shall be governed by and interpreted in accordance with the internal laws of the State of California without giving effect to conflict of law rules. In the event a legal dispute concerning the subjects of this Agreement, the Parties agree that the exclusive venue is the Superior Court for the County of Santa Barbara.
e. Headings. The headings used in t his Agreement are for the convenience and reference only and do not constitute a part of this Agreement and will not be deemed to limit, characterize or in any way affect any provision of this Agreement, and all provisions of this Agreement will be enforce d and construed as if no caption had been used.
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f. Attorneys’ Fees. If either Party institutes a suit against the other for violation of or to enforce any covenant, term or condition of this Agreement, the prevailing Party shall be entitled to reimbursement of all of its costs and expenses, including, without limitation, reasonable attorneys’ fees.
g. Non-Binding Mediation . If a dispute arises out of or relates to this Agreement, or its breach, and the Parties have not been successful in resolving such dispute through negotiation, the parties agree to attempt to resolve the dispute through non-binding mediation by submitting the dispute to a sole mediator selected by the Parties or, at the option of a Party, to mediation. If such dispute is not resolved by such non-binding mediation, the Parties shall have the right to resort to any remedies permitted by law. All defenses based on passage of time shall be tolled during the mediation.
h. No Waiver. The failure of a Party to in sist 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.
i. 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.
j. 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. k. 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 origin al intent of that provision and the rights and obligations of the parties shall be construed and enforced accordingly, and this Agreement shall remain in full force and effect as reformed.
l. 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 inef fective
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unless made in a writing signed by the parties hereto.
m. Counterpart/Electronic Execution and Transmittal. 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 Parties may sign such counterparts by electronic signature and 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.
n. Time is of the Essence. Time is of the essence in this Agreement.
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In witness whereof, the Parties execute this Agreement as of the date last below written.
CENTRAL COAST COMMUNITY
ENERGY
a Joint Powers Authority
___________________________
Robert M. Shaw
Chief Executive Officer
CENTRAL COAST COMMUNITY
ENERGY
Approved as to Form
Deputy General Counsel
CITY OF SANTA MARIA,
a Municipal Corporation
Brett Fulgoni
Director of Public Works
ATTEST:
Donna G. Schwartz
Chief Deputy City Clerk
APPROVED AS TO FORM:
_______________________________
Risk Manager
_______________________________
City Attorney
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EXHIBIT A
PROPERTY